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HomeMy WebLinkAboutExhibit 1 SUBSce_ e)--v (xi Wci 0 e LEASE AGREEMENT BETWEEN THE CITY OF MIAMI AND COCONUT GROVE SAILING CLUB, INC. FOR THE OCCUPANCY OF THE PROPERTY LOCATED AT 2990 SOUTH BAYSHORE DRIVE MIAMI, FLORIDA (6 7? 701-- TABLE OF CONTENTS Page ARTICLE I DEFINITIONS 2 1.1 Definitions 2 ARTICLE II LEASED PROPERTY 6 2.1 Description of Leased Property. 6 ARTICLE III TERM OF LEASE 7 3.1 Term 7 3.2 Options to Renew. 7 3.3 Holding Over. 7 ARTICLE IV PURPOSE AND USE 8 4.1 Purpose and Use. 8 4.2 Mooring Field Amenities 9 4.3 Limitations on Commercial Activities. 9 4.4 Additional Limitations on Use of Leased Property. 10 4.5 Community Service. 11 ARTICLE V STATE APPROVAL 11 5.1 State Approval. 11 5.2 Lessee to Cooperate Regarding State Approval 12 ARTICLE VI CONTINUOUS DUTY TO OPERATE 12 6.1 Continuous Duty to Operate 12 ARTICLE VII HAZARDOUS MATERIALS 13 7.1 Handling of Hazardous Materials. 13 7.2 Indemnification 15 7.3 Disclosure, Warning and Notice Obligations. 15 7.4 Environmental Tests and Audits. 16 7.5 Survival of Lessee's Obligations. 16 ARTICLE VIII RENT AND OTHER PAYMENTS 16 8.1 Minimum Monthly Rent and Percentage Rent 16 8.2 Security Deposit. 19 8.3 Returned Check Fee 20 8.4 Late Charges. 21 8.5 Adjustment of Minimum Monthly Rent, Security and Community Service Fee. 21 8.6 Special Assessments or Taxes. 23 ARTICLE IX PROGRAM OPERATORS AND/OR INDEPENDENT CONTRACTORS 23 9.1 Program Operators and Independent Contractors. 23 9.2 Subleases. 24 ARTICLE X MAINTENANCE and capital improvements 25 10.1 Condition of the Leased Property and Maintenance. 25 Table of Contents Page 10.2 Lessee's Duty to Maintain 25 10.3 Capital Account 26 ARTICLE XI AUDITS AND REPORTING 27 11.1 Records of Sales 27 11.2 Audit Report. 28 11.3 Annual Report 29 11.4 Preventative Maintenance Inspection Report 30 ARTICLE XII POSSESSION AND CONSTRUCTION OF IMPROVEMENTS 30 12.1 Delivery of Possession of Subject Leased Property. 30 12,2 Alterations, Additions or Replacements Generally. 31 12.3 Lessee's Construction and Improvement Obligations. 31 12.4 Licenses, Authorizations and Permits 32 12.5 Liens. 32 12,6 Performance Bond. 33 ARTICLE XIII OWNERSHIP OF IMPROVEMENTS AND LEASED PROPERTY 34 111 Ownership of Improvements and Personal Leased Property 34 ARTICLE XIV NO LIABILITY 35 14.1 No Liability. 35 ARTICLE XV COMPLIANCE WITH LAWS 36 15.1 Compliance With Laws 36 15.2 Non -Discrimination 36 15.3 No Discrimination in Hiring 37 15.4 Americans with Disabilities Act. 37 15.5 Conflict of Interest. 37 ARTICLE XVI ENVIRONMENTAL CONDITIONS 38 16.1 Radon Gas. 38 16.2 Environmental Condition of Leased Property; Lessor Disclaimer. 38 ARTICLE XVII INSURANCE AND INDEMNIFICATION 39 17.1 Insurance. 39 17.2 Indemnification 39 ARTICLE XVIII DEFAULT AND TERMINATION PROVISIONS 41 18.1 Default Provisions. 41 18.2 Termination and Remedies For Default 43 ARTICLE XIX SURRENDER OF LEASED PROPERTY 44 19.1 Surrender of Leased Property 44 Table of Contents Page ARTICLE XX MISCELLANEOUS PROVISIONS 45 20.1 Safety. 45 20.2 Access to Leased Property 46 20.3 Public Records 46 20.4 Notices. 46 20.5 Advertising. 47 20.6 Waiver 48 20.7 Waiver ofJury Trial 48 20.8 Invalidity. 48 20.9 Time of Essence. 49 20.10 No Interpretation Against Draftsmen 49 20.11 Further Acts. 49 20.12 Litigation. 49 20.13 No Third Party Beneficiary 49 20.14 No Partnership 49 20.15 No Recordation 50 20.16 Titles and Headings. 50 20.17 Cancellation of Prior Tenancy -at -Will. 50 20.18 City Approval 50 20.19 Surrender of Leased Property 50 20.20 Amendments. 50 20,21 Construction of Lease. 51 20.22 Severability. 51 20.23 Captions. 51 20.24 Lease Preparation. 51 20.25 Venue and Jurisdiction 51 20.26 City Not Liable for Delays 52 20.27 Entire Lease 52 20.28 Authority 52 EXHIBIT A - EXHIBIT B — EXHIBIT C — EXHIBIT D — EXHIBIT E — EXHIBIT F — EXHIBIT G - APPROVAL FROM THE STATE OF FLORIDA LEGAL DESCRIPTION OF THE LEASED PROPERTY SUBMERGED LANDS LEASE AREA GROSS REVENUE REPORT REPORTING REQUIREMENTS SAMPLE ANNUAL REPORT INSURANCE REQUIREMENTS iii LEASE AGREEMENT This Lease Agreement ("Lease") is entered this day of , 2011, but is effective as of the Effective Date as hereinafter defined) by and between the City of Miami (hereinafter called the "Lessor"), a municipal corporation of the State of Florida and the Coconut Grove Sailing Club, Inc. (hereinafter called the "Lessee" or "CGSC"), a State of Florida not -for -profit corporation organized under the laws of the State of Florida, hereinafter collectively referred to as the "Parties." RECITALS WHEREAS, the Lessee, a not -for profit corporation of the State of Florida, has operated a sailing club at 2990 South Bayshore Drive, Miami, Florida since 1946 (the "Leased Property"); and WHEREAS, the Lessee desires to continue to provide marine -related recreation services to the community, including: (i) the promotion of sailing as a sport and recreational activity, (ii) sailing and boating instruction to the public; (iii) the promotion of seamanship and navigation; (iv) the sponsorship of races and regattas; and WHEREAS, the Lease requires that Lessee must maintain and comply at all times with Section 18- 188, "Discrimination by lessees of city -owned property — Prohibited," and Section 18-189, "Requirements for organizations using city facilities," of the City of Miami Code, as amended; and WHEREAS, the Lessee's operation of the sailing facility on Bayshore Drive has been of benefit to the general welfare of the Lessor and the general public and has brought and will continue to bring international publicity to the Lessor; and WHEREAS, Section 29-D of the Charter of the City of Miami provides for a procedure for waiving competitive bidding and referendum requirements when entering into a lease, or extending an existing lease, with a non-profit, non-commercial, water -dependent organization that provides or seeks to provide marine -recreation services and/or activities to the community at any City -owned waterfront leased property, provided certain conditions are met pertaining to public access, public use, waterfront setback and view -corridor requirements, fair return to the City, compliance with master plan and requirements prescribed by the ordinance pertaining to an organization using City -owned facilities; and WHEREAS, the Commission of the City of Miami, Florida by Resolution No.11-0236 passed and adopted on June 9, 2011, determined that it is in the best interest of the City of Miami to enter into this Agreement with the Lessee for the provision of marine -related recreation services in accordance with the provisions of Section 29-D of the Charter of the City of Miami and Section 18.189 of the City Code; NOW THEREFORE, in consideration of the Leased Property and mutual covenants hereinafter contained to be observed and performed, the Parties hereby do agree as follows: ARTICLE I DEFINITIONS 1.1 Definitions. Any word contained in the text of this Lease shall be read as the singular or the plural and as the masculine, feminine or neuter gender, as may be applicable in the particular context. More specifically, however, for the purposes of this Lease, the following words shall have the meanings attributed to them in this Section: A. "Applicable Laws" means applicable laws, Florida Statutes, codes, City and Miami - Dade County ordinances, judgments, decrees and injunctions from courts having jurisdiction over the subject Leased Property, rules, requirements of state and local boards and agencies with jurisdiction over the subject Leased Property, now existing or hereafter enacted, adopted, foreseen and unforeseen, ordinary and extraordinary, which may be applicable to the subject Leased Property or any part of it. B. "City" shall mean the City of Miami as Lessor and owner of the Leased Property. C. "City Manager" means the administrative head of the City of Miami's government who has been appointed by the City Commission of the City of Miami in accordance 2 with the provisions of Section 15 of the Charter of the City of Miami, as amended, and who is authorized to execute this Lease and other documents including notices required hereunder. D. "Club Members" means those individuals who have applied for and been accepted for membership into any one of several classes of membership in the Coconut Grove Sailing Club, including but not limited to: (i) Regular; (ii) Associate; (iii) Junior and (iv) Non-resident membership E. "Department of Environmental Protection" (hereinafter referred to as DEP) shall refer to the administrative agency that administers and regulates the use of submerged lands deeded to the City and those submerged lands which are still state-owned and leased to the City. F. "Director" shall mean the Director of the Department of Public Facilities for the City of Miami. G. "Environmental Laws" shall include but not be limited to all applicable federal, state and local environmental, public health and safety laws, regulations, orders, permits, licenses, approvals, ordinances and directives, including but not limited to, all applicable requirements of the Clean Air Act; the Clean Water Act; the Resource Conservation and Recovery Act, as amended by the Hazardous and Solid Waste Amendments of 1984; the Safe Drinking Water Act; Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended by the Superfund Amendment and Reauthorization Act of 1986 ("SARA"), 42 U.S.C. § 9601, et seq. (hereinafter "CERCLA"), the Occupational Health and Safety Act; the Toxic Substances Control Act; the Pollutant Discharge Prevention and Control Act; the Water Resources Restoration and Preservation Act; the Florida Air and Water 3 Pollution Control Act; the Florida Safe Drinking Water Act; and the Florida Environmental Reorganization Act of 1975. H. "Gross Revenues" shall be as defined in Section 8.1. "Hazardous Materials" means any toxic or hazardous substance, material or waste and any other contaminant, pollutant or constituent thereof, whether liquid, solid, semi -solid, sludge and/or gaseous, including without limitation, chemicals, components, pesticides, petroleum products, including crude oil or any fraction thereof, asbestos containing materials or other similar substances or materials which are regulated or controlled by, under or pursuant to any federal, state, or local statutes, laws, ordinances, codes, rules, regulations, orders, or decrees, not limited to, CERCLA, the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976 ("RCRA") and subsequent Hazardous and Solid Waste Amendments of 1984, also known as the 1984 "RCRA" amendments, 42 U.S.C. §6901 et seq., the Hazardous Material Transportation Act, 49 U.S.C. §1801 et. Seq., the Clean Water Act, as amended, 33 U.S.C. §1311, et. seq., the Clean Air Act, as amended, 42 U.S.C. § 7401-7642, Toxic Substance Control Act, as amended, 15 U.S.C. §2601 et seq., the Federal Insecticide, Fungicide and Rodenticide Act ("FIFRA"), as amended, 7 U.S.C. §136-136y, the Emergency Planning and Community Right -to -Know Act of 1986 ("EPCRTKA" or "EPCRA"), as amended, 42 U.S.C. §11001, et. Seq. (Title III of SARA), the Occupational Safety and Health Act of 1970 ("OSHA"), as amended, 29 U.S.C. §651, et seq., any similar state statute, including without limitation, and by way of example, Chapters 376 or 403, Florida Statutes, as amended, or in the regulations implementing such statutes or which has been or shall be determined at any time by any agency or the court to be a 4 hazardous or toxic substance regulated under any other Environmental Laws, or any substance or material that is or becomes regulated by any federal, state or local governmental authority. J. "Independent Contractors" shall mean person(s) that provide services for the Lessee on a non -employee basis for a flat fee, flat rate or for other compensation basis. K. "Lease Date" shall mean the first day of July which follows the date this Lease is signed by the City Manager on behalf of the Lessor after being signed by the Lessee. L. "Lease Term" or "Term" has the meaning ascribed to it in Section 3.1 and Section 3.2. M. "Lease Year" shall mean any period of time consisting of twelve (12) consecutive calendar months commencing on the Effective Date and each anniversary thereafter during the Lease Term. N. "Minimum Annual Rent" is the minimum rent that is due on a yearly basis from the Lessee, which commences at Five Thousand Nine Hundred Sixteen and 67/100 Dollars ($5,916.67) per month as of the Effective Date. 0. "Mooring Field" shall mean a controlled marine anchorage facility in mid waters where boats and vessels tie up to a floating buoy affixed to the bay bottom by a line or chain, thereby providing moorage for boats and vessels. P. "Percentage Rent" has the meaning ascribed to it in Section 8.1.B. Q. "Permitted Uses" means Lessee shall occupy and use the Leased Property primarily for water recreational and educational opportunities as more particularly described in Paragraph 4.1. 5 R. "Program Operators" shall be other entities or individuals that provide services and/or conduct activities which are Permitted Uses at the Leased Property pursuant to an agreement with Lessee and which receive payment for such services or activities directly from Lessee's patrons. The City shall not be included in the definition of "Program Operator." S. "Leased Property" shall mean the City -owned uplands including improvements, together with the City -owned submerged lands, as more particularly described respectively in Exhibit "B" and Exhibit "C" attached hereto and made a part hereof. T. "Rent Formula" shall mean the manner in which both the Percentage Rent and the Gross Revenues are calculated and defined in Section 8.1. U. "Section," "subsection," "paragraph," "sub -paragraph," "clause," or "sub -clause," followed by a number or letter means the section, subsection, paragraph, sub- paragraph, clause or sub -clause of this Lease that is so designated. V. "Submerged Lands" shall mean the submerged lands described as Parcel No. 1 on Exhibit B hereto and depicted in the Plan View attached as Exhibit C hereto; W. "City -sponsored Event" shall mean an event sponsored by the City on the Leased Property. ARTICLE II LEASED PROPERTY 2.1 Description of Leased Property. The Lessor hereby leases to Lessee and Lessee hereby leases from Lessor, the Leased Property heretofore defined for the purposes of developing, constructing and operating thereon a membership sailing club, providing sailing instruction, sailing activities, including regattas, etc. subject to the restrictions, conditions, covenants and easements herein reserved and granted. 6 ARTICLE III TERM OF LEASE 3.1 Term. The initial term of this Lease shall be for a five (5) year period (the "Term") commencing on July 1, 2011 (the "Effective Date") and ending on June 30, 2016, unless sooner terminated as provided herein. 3.2 Options to Renew. Lessee shall have the option to extend the term of this Lease for two (2) additional five-year terms (the "Additional Terms") upon the same terms and conditions contained in this Lease, provided no Event of Default, as this term is defined in Paragraph 18.1 herein has occurred. In order to exercise its option to renew for any Additional Term, Lessee must deliver written notice of its intent to renew for the additional five-year term six (6) months in advance of the expiration of the current Term, but no earlier than twelve (12) months prior to the expiration of the current Term. In the event the option to extend any Term is exercised, the Lessor will retain the Security Deposit set forth in Paragraph 8.2 of this Lease, for the same purposes as described in said paragraph. The initial Term and any Additional Terms shall be collectively referred to as the "Lease Term" and shall be subject to all of the terms and conditions of this lease. 3.3 Holding Over. In the absence of any written agreement to the contrary, if the Lessee should remain in occupancy of the Leased Property after the expiration of the Initial Term and any Additional Terms, Lessee shall so remain as a tenant from month -to -month and the prorated Rent shall be the same Rent as the last in effect at the end of the Lease Term. All provisions of this Lease applicable to such tenancy shall remain in full force and effect. 7 ARTICLE IV PURPOSE AND USE 4.1 Purpose and Use. Lessee shall use and occupy the Leased Property to provide and promote sailing activities and incidental activities, including but not limited to individual and group sailing instruction for adults and youth, lectures, clinics, classes, camps, regattas and other boating events, receptions and conferences, meetings and social events, banquets, boat storage, minor boat repairs, together with associated ancillary uses, subject to the limitations contained in this section and other applicable provisions of this Lease. Lessee shall ensure that the Leased Property and all of Lessee's activities relating to mooring rentals and sailing instruction shall be available on a first -come, first -served basis to all segments of the community. Lessee shall waive at least $10,000 per year of instructional and summer camp fees for disadvantaged persons. Without limiting the generality of the foregoing, disadvantaged persons may include persons who suffer from a mental disability, a physical disability, reside in a low-income level household, or any combination thereof. Lessee shall operate, manage, supervise and administer activities during its use of the Leased Property as an independent contractor and not as an employee of the City. Lessee may request written consent from the City Manager to use the Leased Property for any other use, but shall not be authorized to use the Leased Property for that use until Lessee has received the prior written consent of the City Manager, which consent may be conditioned or withheld in the City Manager's sole discretion. This Lease and all rights of the Lessee hereunder shall, at the option of the Lessor, cease and terminate upon discontinuance of the stated use and operation of the Leased Property, after having first been given written notice of the violation and/or default as provided in Paragraph 18.1, and after having first been given the opportunity to cure said violation within thirty (30) days. 8 4.2 Mooring Field Amenities. As a condition of the Lease, Lessee agrees to provide to nonmembers who lease moorings the following amenities: A. Vehicle parking on a space available basis; B. On site garbage collection and recycling facilities; C. Sewage pump -out facilities; D. On -shore potable water; E. Shuttle service to mooring field or dinghy storage; 4.3 Limitations on Commercial Activities. Lessee may engage in commercial activities but only to the extent necessary to service the club Members and their guests, to enhance the utilization of the Leased Property, to enhance public access to said Leased Property and only to perform its purpose under Section 4.1: A. Lessee may sell food and beverages, including alcoholic beverages and Club memorabilia on the leased premises, subject to obtaining all required licenses and observing all applicable laws. B. Lessee may charge fees to Club Members for use of uplands boat storage, moorings, dockage fees, membership dues, initiation fees or rental fees for the use of banquet/dining room portions of the Leased Property. C. The Lessee must employee a dock master or other employee knowledgeable about boats, sailing and boat safety procedures and regulations to oversee the moorings. D. The moorings shall be offered on a first -come, first -serve basis in compliance with City and State public purpose requirements and regulations. The Lessee has the discretion to re -assign vessels for various reasons, including but not limited to the following: to maximize occupancy; to maintain or repair mooring fixtures; to 9 relocate vessels when repairs are required; and to relocate vessels during times of weather -related or during other emergencies. E. The Lessee or Lessee's dockmaster may require evidence that a vessel which is slated to be moored at the mooring field must meet certain safety, seaworthy and sanitation regulations prior to registration and may refuse to register any vessel that does not provide such proof or that does not otherwise meet the conditions set forth in this Lease. 4.4 Additional Limitations on Use of Leased Property. The following activities shall not be performed on the Leased Property: A. No jet skis or similar watercraft may be used or stored. B. No major maintenance repairs or overhauling of Club Members' boats or watercraft. C. No sale or storage of fuel on the Leased Property, except for fuel stored on U.S. Coast Guard approved boat tank and propane fuel tanks for cooking. D. No sale, distribution and/or consumption of alcoholic beverages at the Leased Property, unless and until Lessee has obtained the required permits and complies with all required permits, laws and codes and obtains the necessary liquor liability insurance coverage to accommodate the sale of alcohol and/or alcohol consumption on site. E. Lessee agrees to move its operations to a new City facility when the Coconut Grove Master Plan is implemented, so long as the City provides the Lessee with a City - owned, waterfront property with like facilities including docks and bears the full cost of the move, provided that moving expenses are deemed to be reasonable. 10 F. Lessee may only allow and accept seaworthy vessels with the proper registration into the mooring field and must ensure that all vessels maintain the proper registration throughout their tenure of a mooring space at the facility. G. Lessee must maintain the hedge along the Bayshore Drive Leased Property line in such a way to preserve visibility lines to the water's edge for community residents. 4.5 Community Service. It shall be a condition of this Lease, that Lessee shall continue its practice of providing sailing instruction at least 26 weeks per year and summer sailing camps at least 6 weeks per year to the community at large on a first come first serve basis, at Lessee's cost. ARTICLE V STATE APPROVAL 5.1 State Approval. The City's lease of the Submerged Lands has State of Florida Department of Environmental Protection (DEP) approval ("State Approval"), see Exhibit A. The City shall promptly give notice to Lessee in the event DEP rescinds, modifies or terminates the approval. The Lessee's use of any state-owned, submerged lands shall be subject to any restrictions and fees set forth by DEP for the use of said submerged lands. The use of the state-owned submerged lands is subject to review and approval by DEP and may require Lessee's payment of any administrative and/or lease fees associated with such submerged land, as well as compliance with any applicable state laws and regulations regarding the public purpose use of the submerged lands. This Lease and any subsequent amendments and renewals thereof, are contingent upon the continued approval of DEP as currently set forth in Exhibit A. Should such continued approval require payment to the DEP, Lessee shall have the right to negotiate with DEP the amount and payment thereof. 11 5.2 Lessee to Cooperate Regarding State Approval. Lessor and Lessee acknowledge that a portion of the Submerged Land is subject to certain restrictions contained in Deed No. 19447, as recorded in Book 3130, Page 257 of the Public Records of Miami -Dade County, Florida, made by the Trustees of the Internal Improvement Fund of the State of Florida ("Board") to the Lessor. In the event the Board requires a finding of compliance with the deed restriction or a waiver of compliance with such deed restriction of the additional bay bottom lands within thirty (30) days after the effective date of this Lease, Lessee agrees to use its good faith efforts to obtain from the Board a finding of compliance with the deed restriction or a waiver of compliance with such deed restriction ("State Approval"). If the Board grants State Approval subject to an assessment of state fees for the right to use the additional bay bottom lands, Lessee agrees to pay the Board the full amount of assessed fees. Should Lessee decide not to pay said assessed state fees, and Lessee provides thirty (30) days prior written notice to Lessor of its intent not to pay the assessed state fees, Lessee shall be required to remove all improvements on the Submerged Lands no later than ninety (90) days from the date of the notice. ARTICLE VI CONTINUOUS DUTY TO OPERATE 6.1 Continuous Duty to Operate. Except where the Leased Property is rendered untenantable by reason of fire or other casualty, Lessee shall at all times during the term of this Lease (i) occupy the Leased Property upon the Effective Date; (ii) shall thereafter continuously conduct operations on the Leased Property in accordance with the terms of this Lease and shall at all times keep the Leased Property fully stocked with materials, trade fixtures and furnishings necessary and proper to operate the Leased Property, and (iii) keep the Leased Property open for operation during hours reasonably established from time to time ("Required Operating Hours") as approved by the Lessor's City Manager or his/her designated agent. As of the 12 date hereof, the minimum Required Operating Hours of the Leased Property are Monday through Friday, excluding holidays, from 9:00 AM to 5:00 PM. If the Lessee fails or refuses to satisfy any of the foregoing requirements in items (i) through (iii), then in such event Lessor shall have the right, in addition to all remedies herein provided for default, to collect and Lessee shall be obligated to pay, as additional payments, fifty dollars ($50.00) for each day that Lessee does not comply with said requirements. ARTICLE VII HAZARDOUS MATERIALS 7.1 Handling of Hazardous Materials. Lessee shall, at its sole cost and expense, at all times and in all respects comply with all federal, state and local laws, statutes, ordinances and regulations, rules, rulings, policies, orders and administrative actions and orders applicable to Lessee and its operations relating to "hazardous materials" or "toxic substances" (collectively "Hazardous Materials Laws"), including without limitation, any Hazardous Materials Laws relating to industrial hygiene, environmental protection or the use, analysis, generation, storage, disposal or transportation of any fuel, oils, flammable explosives, asbestos, urea formaldehyde, radioactive materials or waste, infectious waste or other hazardous, toxic, contaminated or polluting materials, substances or wastes, including, without limitation, any "Hazardous Wastes," about the Leased Property, or used by Lessee or at Lessee's direction or by Lessee's failure to comply with any applicable Hazardous Materials Laws. To the extent applicable to Lessee and its operation Lessee shall, at its sole cost and expense, procure, maintain in effect and comply with all conditions of any and all permits, licenses and other governmental and regulatory approvals relating to the presence of Hazardous Materials within, on, under or about the Leased Property required for Lessee's use of any Hazardous Materials in or about the Leased Property in conformity with all applicable Hazardous Materials Laws and prudent industry practices regarding management of such Hazardous Materials. 13 Lessee shall not cause or permit any Hazardous Materials to be brought upon, treated, stored, disposed of, discharged, released, produced, manufactured, generated, refined or used upon, about or beneath the Leased Property or any portion thereof by the Lessee, its agents, employees, contractors, licensees, Club Members or invitees, other than Hazardous Materials of a nature and in amounts which are incidental to and customarily present at similar marine facilities. Lessee shall, at its sole cost and expense, be responsible for performing any removal, remediation, clean-up or restoration required as a result of a release of Hazardous Materials in or about the Leased Property caused or exacerbated by the placement of Hazardous Materials in or about the Leased Property by Lessee, or used by Lessee or at Lessee's direction or by Lessee's failure to comply with any Hazardous Materials Laws. Upon termination or expiration of the Lease, Lessee shall, at its sole cost and expense, cause all Hazardous Materials, including their storage devices, placed in or about the Leased Property by Lessee or its members or guests or at Lessee's direction to be removed from the Leased Property and transported for use, storage or disposal in accordance and compliance with all applicable Hazardous Materials Laws. Lessor recognizes and agrees that Lessee may use materials in normal quantities that are applicable to the use of the Leased Property for the purposes stated herein and that such use by Lessee shall not be deemed a violation of this section, so long as the levels are not in violation of any applicable Hazardous Materials Laws. Lessor acknowledges that it is not the intent of this Article to prohibit Lessee from operating the Leased Property for the use described in Paragraph 4.1. Lessee may operate according to the custom of the industry so long as the use or presence of Hazardous Materials is strictly and properly monitored according to all applicable governmental requirements. If Lessee shall breach the covenants in this section, then in addition to any other rights or remedies which may be available to Lessor under this Lease or otherwise at law or in equity, Lessor may require Lessee to take all actions, or to reimburse Lessor for the costs of any and all actions taken by Lessor, as are necessary to comply with 14 all Environmental Laws and to abate or remediate any significant present or potential health risk with respect to any Hazardous Materials present at the Leased Property. 7.2 Indemnification. Lessee shall indemnify, protect, defend and hold Lessor free and harmless from and against any and all claims, liabilities, penalties, forfeitures, losses and expenses (including attorneys' fees) or death of or injury to any person or damage to any property whatsoever, arising from or caused in whole or in part, directly or indirectly, by the presence in or about the Leased Property of any Hazardous Materials placed in or about the Leased Property or used by Lessee or at Lessee's direction or placed or used by any club member or by Lessee's failure to comply with any applicable Hazardous Materials Law or in connection with any removal, remediation, clean-up, restoration and materials required under the provisions of this Lease or by any regulatory agency. Nothing herein shall be construed to require Lessee to indemnify, protect, defend and hold Lessor free and harmless from and against claims, regulatory actions by governmental agencies, liabilities, penalties, forfeitures, losses and expenses (including attorneys' fees) or death of or injury to any person or damage to any property whatsoever, arising from or caused in whole or in part, directly or indirectly by the presence in or about the Leased Property of any Hazardous Materials placed in or about the Leased Property by persons other than Lessee or its members, including the Lessor. 7.3 Disclosure, Warning and Notice Obligations. Lessee shall comply with all applicable laws, ordinances and regulations in the State of Florida regarding the disclosure of the presence or danger of Hazardous Materials. Lessee acknowledges and agrees that all applicable reporting and warning obligations required under the Hazardous Materials Laws are the sole responsibility of Lessee, whether or not such Hazardous Materials Laws permit or require Lessor to provide such reporting or warning and Lessee shall be solely responsible for complying with applicable Hazardous Materials Laws regarding the disclosure of, the presence or danger of 15 Hazardous Materials. Lessee shall immediately notify Lessor, in writing, of any complaints, notices, warning, reports or asserted violations of which Lessee becomes aware relating to Hazardous Materials on or about the Leased Property. Lessee shall also immediately notify Lessor if Lessee knows or has reason to believe a complaint, notice, report or asserted violation will be issued with respect to the Leased Property. 7.4 Environmental Tests and Audits. Lessee shall not perform or cause to be performed any Hazardous Materials, surveys, studies, reports or inspections, relating to the Leased Property without obtaining Lessor's advance written consent, which consent shall not be unreasonably denied. At any time during the Lease Term, Lessor shall have the right to enter upon the Leased Property in order to conduct appropriate tests to establish whether the Leased Property is in compliance with all applicable Hazardous Materials Laws. 7.5 Survival of Lessee's Obligations. The respective rights and obligations of Lessor and Lessee under this Article VII shall survive the expiration or termination of this Lease. ARTICLE VIII RENT AND OTHER PAYMENTS 8.1 Minimum Monthly Rent and Percentage Rent. Commencing on the Effective Date of this Lease and each and every calendar month during the Lease Term, Lessee hereby agrees to pay the Lessor the Minimum Monthly Rent as described below. Fifteen (15) days after the first of each month, Lessee shall pay Lessor any percentage rent applicable to the preceding calendar month, plus State of Florida State Use Tax, if applicable, for the use of Lessor's Leased Property during said month. A. Minimum Monthly Rent. 16 The Minimum Monthly Rent is Five Thousand Nine Hundred Sixteen and 67/100 ($5,916.67) ("Minimum Monthly Rent"). Commencing on the Effective Date and no later than the 15th day of each month thereafter, Lessee shall pay the Lessor the Minimum Monthly Rent. B. Percentage Rent. Percentage Rent ("Percentage Rent") shall be equal to ten percent (10%) of the monthly Gross Revenues as described below for any preceding calendar month less the base rent applicable to that calendar month. "Gross Revenues" shall mean the entire amount of the revenues and/or percentages or revenues collected or accrued from all sources derived from the operation of the Leased Property, without limitation, including fees to Club Members for the storage of boats (moorings, wetslips and other upland storage methods), dockage fees, membership dues, initiation fees or fees for rental of the clubhouse, participation in and/or coordination of international and/or national sailboat shows and competitions; from the total sale price of all food and beverages of all food and beverages sold on or from the Leased Property, including sales made or performed by means of mechanical or other vending devices on the Leased Property, whether such revenues shall be credit or cash or otherwise, and whether the foregoing be collected or uncollected and shall include any finance charges or similar payments received by Lessee as a result of any of the foregoing. Gross 'Revenues shall not include the following: any amount of any sales, use or gross sales tax imposed by any federal, state or governmental authority directly on sales and collected from customers, provided that the amount is added to the selling price therein and paid by the Lessee to such governmental authority; ii. collection of insurance proceeds; 17 monies collected for events that are done for charitable purposes wherein the total amount collected is paid to the charitable sponsor or not -for -profit organizations; iv. all gratuities paid to employees; v. any restricted grants, subsidies, credits or similar benefits received from any federal, state, regional or local body, agency, authority, department or organization which revenues are restricted or whose restricted revenues are earmarked for capital expenditures to the Leased Property; and, vi. any restricted donations or contributions whose revenues are earmarked for capital expenditures, as approved by the Lessor, to the Leased Property; vii. revenues received for providing instructional services that satisfy the public purpose requirements of this lease provided they are deposited in a special account restricted to the payment of costs associated with such instructional purposes. Gross Revenues, whether for cash, credit, credit cards or otherwise, shall be recognized in the period the service was provided or sale took place. Payments received in advance are deferred and are recognized as revenue in the period the service is rendered or sale takes place. Grants shall be recorded as income during the period designated by the grants or when the Lessee has incurred expenditures in compliance with the restrictions of the grantor. If a sale is by credit card, no deduction shall be allowed for any commission associated with such sale. Gross Revenues shall be reduced by the amount of any refund made upon any sale in or from the Leased Property, provided said amounts had been previously included in "Gross Revenue," not to 18 exceed the sum so previously included, where the merchandise sold is thereafter returned by the purchaser and accepted by the Lessee, and if such refund is in the form of a credit to customer, such credit shall be included in Gross Revenues when used. If there is any underpayment of Percentage Rent, Lessee shall pay the Lessor the amount of the deficiency within thirty (30) days of the Lessor receipt of the Percentage Rent payment. If the Percentage Rent is not paid after thirty (30) days, Lessee shall be charged a late payment fee in accordance with Paragraph 8.6 until the underpayment amount is paid in full. C. Place of Payment. Every 15th day of the calendar month, Lessee shall pay the Lessor the Minimum Monthly Rent and Percentage Rent and provide the corresponding gross revenue monthly report for the preceding calendar month to the City of Miami at the address noted below: City of Miami Department of Finance Attention: Treasury Management/Receipts 444 SW 2nd Avenue, 6th Floor Miami, Florida 33130 Lessee shall use a gross revenue monthly report, a sample of which is attached herewith and incorporated herein as Exhibit D to itemize any and all reportable Gross Revenues as described in Paragraph 8.1(B) herein. 8.2 Security Deposit. Simultaneously with the execution of this Lease, the Lessee shall deposit with Lessor the sum of Eleven Thousand Eight Hundred Thirty-three Dollars and 33/100 ($11,833.33) (the "Security Deposit") as guarantee for the full and faithful performance by Lessee of all obligations of Lessee under this Lease or in connection with this Lease. If Lessee is in violation beyond any applicable notice or cure period, the Lessor may use, apply or retain all or any part of the Security Deposit for the payment of (i) any fee or other sum of money which Lessee was obligated to pay but did not pay, (ii) any sum expended by Lessor 19 on Lessee's behalf in accordance with the provisions of this Lease, or (iii) any sum which Lessor may expend or be required to expend as a result of Lessee's violation. Should the Lessor use, apply or retain all or any part of the Security Deposit, Lessee shall reimburse the amount used, applied or retained within thirty (30) days of the Lessor's application of the Security Deposit. The use, application or retention of the Security Deposit or any portion thereof by the Lessor shall not prevent the Lessor from exercising any other right or remedy provided for under this Lease or at law and shall not limit any recovery to which the Lessor may be entitled otherwise. Provided Lessee is not in violation of this Lease, the Security Deposit or balance thereof, as the case may be, shall be returned to Lessee upon the termination of this Lease or upon any later date after which Lessee has vacated the Leased Property in the same condition or better as existed on the Effective Date, ordinary wear and tear excepted. Upon the return of the Security Deposit (or balance thereof) to the Lessee, the Lessor shall be completely relieved of liability with respect to the Security Deposit. Lessee shall not be entitled to receive any interest on the Security Deposit. 8.3 Returned Check Fee. In the event any check is returned to the Lessor as uncollectible, the Lessee shall pay to the Lessor a returned check fee (the "Returned Check Fee") based on the following schedule: RETURNED CHECK AMOUNT $00.01 — $ 50.00 RETURNED CHECK FEE AMOUNT $20.00 $50.01 - $300.00 $30.00 $300.01- $800.00 $40.00 OVER $800 5% of the returned amount Such Returned Check Fee shall constitute additional fees due and payable to the Lessor by Lessee, upon the date of payment of the delinquent payment referenced above. Acceptance of such Returned Check Fee by the Lessor shall not constitute a waiver of Lessee's violations with respect to 20 such overdue amounts nor prevent the Lessor from the pursuit of any remedy to which the Lessor may otherwise be entitled. 8.4 Late Charges. Lessee hereby acknowledges that late payment by the Lessee to the Lessor of the Rent, Percentage Rent and other sums due hereunder will cause the Lessor to incur costs not contemplated by this Lease, the exact amount of which will be extremely difficult to ascertain. Accordingly, if any installment of the Rent, Percentage Rent or any other sum due from Lessee shall not be received by the Lessor within fifteen (15) days after the date on which such sum is due, Lessee shall pay to the Lessor a late charge ("Late Charge"). Any amount not paid to the Lessor within this time frame will bear interest at a rate of 10% per annum from its due date. Payment of such interest shall not accrue or cure any violation by Lessee under this Lease. The Parties hereby agree that such Late Charge represents a fair and reasonable estimate of the costs the Lessor will incur by reason of late payment by Lessee. Acceptance of such late payments by the Lessor shall not constitute a waiver of the Lessee's violation with respect to such overdue amount, nor prevent the Lessor from exercising any of its other rights and remedies granted hereunder or at law or in equity. 8.5 Adjustment of Minimum Monthly Rent, Security and Community Service Fee. A. Lessee agrees that, as provided for below, the Minimum Monthly Rent and Security Deposit shall be increased by three percent (3%) yearly on the anniversary date of the Effective Date. Said adjustment shall be hereinafter referred to as the Increase ("Increase"). B. Lessee shall deposit on the first day of each anniversary of this Lease, an amount equal to three percent (3%) of the previous Lease Year's Security Deposit amount. The Security Deposit shall be held as security for the payment and performance by Lessee of all of Lessee's obligations, covenants, conditions and agreements under this Lease. Lessor shall have the right, but shall not be obligated to apply all or any portion of the Security Deposit to make any such 21 payment or perform any such act on Lessee's part without waiving its right based upon any default of Lessee and without releasing Lessee from any obligations hereunder. Lessee shall promptly deposit with Lessor the amount necessary to restore the Security Deposit to its full amount. The Security Deposit shall not be deemed liquidated damages and application of the Security Deposit to reduce Lessor's damages shall not preclude Lessor from recovering from Lessee all additional damages incurred by Lessor. The Security Deposit shall bear no interest. If Lessee fully and faithfully complies with all of the terms, provisions and conditions of the Lease, the Security Deposit shall be returned to Lessee without interest after both: (i) the expiration of the Lease Term, as may be extended pursuant to the provisions of this Lease and (ii) Lessee's delivery to Lessor of the entire Leased Property and improvements. In the event of a sale or transfer of Lessor's interest in the Leased Property, Lessor shall have the right to transfer the Security Deposit to such transferee and thereafter Lessor shall be released from all liability relating to the return of the Security Deposit and Lessee shall look to such transferee for the return of the Security Deposit. C. For each Lease Year, or portion thereof, in which Lessee fails to provide any of the community services, in whole or in part, described in Section 4.5 herein, or fails to provide reasonable notice of cancellation, Lessee shall be in default of this Lease and shall pay to Lessor, as Additional Payment, the amount of One Thousand Dollars ($1,000.00) (hereinafter the "Community Service Fee"). The payment of such Community Service Fee shall not operate to cure Lessee's default, nor shall it prevent Lessor from the pursuit of any remedy to which Lessor would otherwise be entitled to under this Lease, including the right of termination of all of Lessee's possessory rights hereunder. Lessor acknowledges Lessee's active participation in providing community services to the public and considered the same in granting a waiver of competitive bidding and referendum requirements as provided in Section 29-D of the City of Miami Charter. 22 8.6 Special Assessments or Taxes. Lessee shall pay before any fine, penalty, interest or costs is added for nonpayment, any and all charges, fees, taxes or assessments levied against the Leased Property (collectively "Assessments"), its proportionate share of use of the Leased Property and/or against personal property of any kind, owned by or placed in, upon or about the Leased Property by Lessee, including, but not limited to, ad valorem taxes, fire fees and parking surcharges. In the event Lessee appeals an Assessment, Lessee shall immediately notify the Lessor of its intention to appeal said Assessment, and shall furnish and keep in effect a surety bond of a responsible and substantial surety that is reasonably acceptable to the Lessor or other security reasonably satisfactory to the Lessor in an amount sufficient to pay one hundred percent (100%) of the contested Assessment with all interest on it and costs and expenses, including reasonable attorneys' fees, to be incurred in connection with it. Lessee agrees to pay such Assessments either in lump sum or on an installment plan. Failure of the Lessee to pay any Assessment or any installment payment thereof when due shall constitute a default of this Lease by Lessee, subject to the terms and conditions of Paragraph 18.1. ARTICLE IX PROGRAM OPERATORS AND/OR INDEPENDENT CONTRACTORS 9.1 Program Operators and Independent Contractors. Lessee shall be solely responsible for all of its activities during its use at the Leased Property. The Lessee shall be allowed to enter into professional services agreements with Program Operators and/or Independent Contractors that wish to provide or manage any of the activities set forth in Paragraph 4.1, subject to obtaining the prior written approval of the City Manager, which approval may be conditioned or withheld in his sole discretion. Lessee shall submit copies of any agreement(s) with proposed Program Operators and/or Independent Contractors. Lessee's agreements with Program Operators and/or Independent Contractors shall include a provision that any Program Operators and/or Independent Contractors receiving payments directly from activity or service patrons shall comply with 23 the terms and conditions of this Lease including, but not limited to, the requirement to pay Percentage Rent in accordance with Paragraph 8.1 herein which shall be collected by Lessee from Program Operator and/or Independent Contractors on a monthly basis and paid to the Lessor simultaneously with Lessee's monthly fee payments. In the event that Lessee restructures or changes its method of payment to Program Operators and/or Independent Contractors in a way which would respectively trigger reclassification of Program Operators and/or Independent Contractors, Lessee agrees to notify the Director within ten (10) days after such an occurrence. In such event, the Lessee shall immediately notify entities or individuals newly reclassified as Program Operators and/or Independent Contractors of their obligations to immediately commence paying Percentage Rent in the manner described in Paragraph 8.1(C) herein. The Lessor, upon notification by Lessee of such event(s), shall adjust its payment records and collections systems accordingly with payments to reflect any retroactive payments due from Program Operators and/or Independent Contractors. 9.2 Subleases. At the Lessor's request, Lessee shall provide to the Lessor a copy of any subleases for the Leased Property. Lessee shall incorporate in any and all subleases provisions concerning rentals and expenses that are compatible with the Rent Formula in the Agreement. Lessee shall have the right to enter into subleases of any part of the Leased Property or Improvements at any time and from time to time during the term of this Lease with such subtenants and upon such commercially reasonable terms and conditions as Lessee shall, in its sole discretion, deem fit and proper, provided, however, that Lessee shall not enter into any sublease with a any subtenant which does not deal with Lessee at arm's length without first obtaining the City's approval, which approval the Lessor may in its sole discretion withhold. If Lessee shall contemplate making any sublease with respect to which Lessor's approval is required pursuant to the foregoing sentence, Lessee shall submit to the Lessor a copy of such proposed sublease 24 together with any information concerning the identity of the subtenant as the Lessor may reasonably request. Within sixty (60) days after submission of such proposed sublease and information, the Lessor shall notify Lessee whether the proposed sublease is approved. In the event the Lessor shall fail to respond within sixty (60) days after submission of such sublease and information, the same shall be conclusively deemed to have been approved by the Lessor. ARTICLE X MAINTENANCE AND CAPITAL IMPROVEMENTS 10.1 Condition of the Leased Property and Maintenance. Lessee accepts the Leased Property "as is," in its present condition and state of repair condition and without any representation by or on behalf of the Lessor, and agrees that the Lessor shall, under no circumstances, be liable for any latent, patent or other defects in the Leased Property. Lessee shall maintain the Leased Property in good order and repair at all times and in an attractive, clean, safe and sanitary condition and shall cause no waste or injury thereto. Lessee, at its sole cost, shall be responsible for all maintenance and repairs to the Leased Property required or caused by Lessee's use of any part thereof, including the structures, moorings, equipment, furnishings and fixtures and the appurtenances thereon and thereto. Lessee agrees to make any changes necessary to the Leased Property at Lessee's sole cost and expense in order to comply with all City, County and State code requirements for Lessee's occupancy thereof. 10.2 Lessee's Duty to Maintain. Lessee shall maintain the Leased Property in good order and appearance and shall take all steps reasonably necessary to prevent deterioration of the improvements and shall comply with all applicable State and Municipal Building codes and inspection obligations. 25 If Lessee refuses, neglects or fails to provide the above maintenance or does not provide adequate maintenance within thirty (30) days after written demand from the Lessor, Lessor may take corrective measures or cause the Leased Property to be cleaned or repaired without waiving its right based upon any violation of Lessee and without releasing Lessee from any obligations hereunder. In this event, Lessee shall pay the Lessor's Department of Finance, Treasury Management/Receipts Section, as additional payments, the full cost of such work within thirty (30) days of receipt of an invoice indicating the cost of such corrective measures or clean up. Failure to pay such invoice shall constitute a violation and default of this Lease as provided in 18.1 herein. Nothing herein shall imply that maintenance, repair and inspections should be performed by Lessee only at the required intervals. Lessee, shall at all times, be responsible, for the condition of the Leased Property and shall perform repairs required in a timely manner so as to prevent injury to persons and waste to the Leased Property. In addition to the above services, Lessee shall comply with the Preventive Maintenance inspection and Reporting requirements in Paragraph 11.4 herein. 10.3 Capital Account. Lessee agrees to set up a separate reserve account designed to fund capital improvements and preventive maintenance for the Leased Property (the "Capital Account"). A capital improvement is defined as a capital expenditure, of three thousand dollars ($3,000) or more, resulting in the acquisition, improvement or addition to fixed assets in the form of buildings or improvements, more or less permanent in character and durable equipment with a life expectancy of at least three years. In order to meet this goal, Lessee agrees to deposit to the Capital Account on a yearly basis by the end of each calendar year a minimum sum of five thousand dollars and 00/100 ($5,000.00) such that the ending balance of the first five year term of the lease is no less than twenty five thousand dollars and 00/100 ($25,000.00). Lessee furthermore agrees that the contributions to the Capital Account will be 26 increased to maintain a minimum balance of twenty six thousand two hundred and fifty dollars and 00/100 ($26,250.00) at the end of the second five year term of the lease. Contributions to the Capital Account will be increased to maintain a minimum balance of twenty seven thousand five hundred and sixty five dollars and 00/100 ($27,565.00) at the end of the third five year term of the lease. All contributions to the Capital Account will be excluded from Gross Revenue as specified in Article 8.1. ARTICLE XI AUDITS AND REPORTING 11.1 Records of Sales. During the term of this Lease and any extensions thereto, Lessee shall maintain and keep, or cause to be maintained and kept at the Leased Property, a full, complete and accurate record and account of all Gross Revenues arising or accruing by virtue of its operations conducted at or from the Leased Property, for each of the terms and all extensions thereof. All records and accounts, including sales slips (which will be serially numbered), cash register tapes, bank statements or duplicate deposit slips, mail orders, telephone orders and all other supporting records, shall be available for inspection and audit by the Lessor and its duly authorized agents or representatives during the hours of 10:00 AM to 5:00 PM, Monday through Friday and shall be in accordance with generally accepted accounting procedures. Lessee must provide point of sale machines or such other cash registers or accounting control equipment deemed reasonably necessary, for proper control of cash and payments whether such transactions are cash or credit transactions. Lessee shall keep and preserve or cause to be kept and preserved said records for not less than sixty (60) months after the payment of the Percentage Rent due under the terms hereof. For the same period of time, Lessee shall also retain copies of all sales and tax returns covering its operations and any other governmental tax or other returns which show Lessee's sales therein and shall, upon demand, deliver photographic copies thereof to the Lessor. Such records for the immediately preceding twelve (12) months must be kept on the Leased Property. The 27 Lessee will cooperate with the Lessor's internal auditors (or such other auditors designated by Lessor) in order to facilitate the Lessor's examination of records and accounts. 11.2 Audit Report. Within one hundred twenty (120) days after the end of Lessee's first complete Fiscal Year under the initial term of this Lease, and within one hundred twenty (120) days after the end of each of Lessee's succeeding Fiscal Years, Lessee shall deliver or cause to be delivered to the City of Miami's Director, Department of Public Facilities , whose address is 444 S.W. 2nd Avenue, 3rd Floor, Miami, FL 33130, Financial Statements ("Financial Statements") prepared by an independent Certified Public Accountant ("CPA") for the fiscal year which includes any and all Gross Revenues and Expenses received by the Lessee (and Program Operators, if any) for the use of the Leased Property. Such Financial Statements shall be prepared by an independent CPA contracted at the Lessee's sole cost and expense and shall be accompanied by a certification from the CPA that such Financial Statements accurately present Lessee's Gross Revenues, as defined herein, for the period covered by the Financial Statements . In the event Lessee is unable to timely submit the Financial Statements and provided Lessee has commenced and diligently pursued the completion of the Financial Statements, Lessee may request from the Director a thirty (30) day extension to complete the Financial Statements, which request shall not be unreasonably denied. In the event Lessee seeks a reduction in the Minimum Monthly Rent or the percentage for determining Percentage Rent, it must present its prior year's Financial Statements certified by a CPA as presenting fairly, in all material aspects, the financial position of the Lessee in conformity with Generally Accepted Accounting Principles. In the event the Lessee fails to prepare or deliver any required Financial Statements to the Lessor within the time set forth above, the Lessor, upon fifteen (15) days notice to Lessee, may elect to exercise either or both of the following remedies: (i) To treat as a default of this Lease, any such omission continuing after thirty (30) days notice thus entitling the Lessor, without further notice, to 28 exercise its right to cancel this Lease and resort to other legal remedies; and/or (ii) To cause an audit and/or accounting, pursuant to the provisions for this Lease to be made at the sole cost and expense of the Lessee. Lessee shall pay the full cost of such audit within thirty (30) days of receipt of an invoice indicating the cost of such audit. Failure to pay such invoice shall constitute a default of this Lease as provided in Paragraph 18.1. below. Notwithstanding the above and during the Term described in Paragraph 3.1 of this Lease and for a period expiring three (3) years after the expiration of the Term, at its option, the Lessor may, at its sole cost and expense, audit Lessee's business affairs, records, files, sales slips and sales tax records in connection with Lessee's sales and revenues on, from or related to the use of the Leased Property for the period covered by any financial statement, report or record furnished to the Lessor. Lessee shall allow the Lessor or auditors of the Lessor to inspect all or any part of the source documents and records for the aforesaid monthly reports. Said inspection shall be conducted at the sole discretion of the Lessor. Records shall be available Monday through Friday, inclusive, between the hours of 10:00 AM and 5:00 PM at the Leased Property. Copies requested by the Lessor shall be furnished to the Lessor at no cost. The acceptance of Lessor of payments of Percentage Rent shall be without prejudice to Lessor's right to conduct an examination of Lessee's books and records of its Gross Revenues and inventories of merchandise on the Leased Property in order to verify the amount of annual Gross Revenues made by Lessee in and from the Leased Property. 11.3 Annual Report. As a condition precedent to the commencement of this Lease, and consistent with the reporting requirements summarized in Exhibit F attached and incorporated herewith, on each September 1st during the term, the Lessee shall prepare and present, on the form attached in Exhibit F attached and incorporated herein, an Annual Report (hereinafter "Annual Report") consisting of the 29 following items describing the Lessee's use of the Leased Property and public purpose benefits accomplished during each foregoing fiscal year: A. List of Public Services to City Residents: Lessee shall provide a list of public services provided to City of Miami residents free of charge, along with the total number of adults and/or children provided with sailing instruction and/or other public services during the previous fiscal year. The records shall be available for on - site inspection during the Lessor's annual inspection of the Leased Property. B. List of international, national and local regattas and other public events hosted and/or co -sponsored by Lessee for the previous year. C. Numerical count of members, including members in each category of Lessee's club membership for previous year. 11.4 Preventative Maintenance Inspection Report. At the end of each five (5) year term, Lessee shall, at its sole cost and expense, have a qualified property inspector perform a physical inspection of the Leased Property ("Preventive Maintenance Inspection"), including all structural components and mechanical equipment and shall submit a report of such inspection report to the Director or his/her designee and if applicable, a remediation plan to be approved by the City Manager or his/her designee, for all conditions requiring repair or medication as noted in the report. ARTICLE XII POSSESSION AND CONSTRUCTION OF IMPROVEMENTS 12.1 Delivery of Possession of Subject Leased Property. Upon execution and delivery of this Lease, the Lessor shall be deemed to have delivered possession of the Leased Property to the Lessee. 30 12.2 Alterations, Additions or Replacements Generally. Except in the event of an emergency, Lessee shall not make any improvements to the leased premises without first applying for and acquiring all necessary permits, including but not limited to, building permits. Any major improvements or alterations must be approved in writing by the City Manager or his or her designee The Lessee shall be responsible for all costs associated with any improvements including, but not limited to, design, construction, installation, and permitting costs. The improvements and all alterations must comply with all statutes, laws, ordinances and regulations of the State of Florida, Miami -Dade County, the City of Miami and any other agency that may have jurisdiction over the Leased Property as they presently exist and as they may be amended hereafter. 12.3 Lessee's Construction and Improvement Obligations. Lessee, at its sole cost and expense, shall plan, design and make the following improvements at the Leased Property: A. Install new buoys and navigational signage subject to applicable federal, state and local regulations, for the purpose of helping boaters identify Mooring Field (hereinafter defined) boundaries and navigate accessible waterways. B. Repair or replace existing dock. C. Prepare and submit a preliminary design for a high -quality Mooring Field (the "Mooring Field") to the Director of Public Facilities for Lessor's approval within nine (9) months of the Effective Date of this Lease. D. Install a high -quality Mooring Field along with any applicable signage subject to the federal, state and local regulations, for the purpose of providing a minimum of 175 moorings for its members, patrons and transients unless the City Manager, at the request of Lessee, agrees to a lesser number of moorings to accommodate large 31 size vessels. The Lessor acknowledges that the moorings on the Submerged Land have historically been positioned such that the swept area of each boat overlaps the swept area of boats on adjacent moorings. The Lessor, to the extent permitted by law, will support and approve a new mooring field with such overlap of swept areas. Lessee shall, at its sole cost and expense, complete the construction of said Mooring Field not later than five (5) years from the commencement date of this lease, unless the required permits are not issued despite Lessee's best and timely efforts to apply for such permits. Lessee agrees to diligently pursue all required permits. 12.4 Licenses, Authorizations and Permits. Lessee shall obtain, or cause to be obtained, and maintain in full force and effect throughout the term of this Lease, at its sole expense, all licenses, authorizations and permits that are necessary for Lessee to conduct its publicly accessible, water -related recreational and educational activities. Lessee shall be responsible for paying the cost of said applications and obtaining said licenses, authorizations and permits. 12.5 Liens. The Lessee shall not knowingly suffer or permit any liens to be filed against the title to the Leased Property by any, including but not limited to, unpaid taxes, fees, work, labor, services or materials supplied to the Lessee or anyone having a right to possession of the Leased Property as a result of an agreement with or without the consent of the Lessee. Nothing in this Lease shall be construed as constituting the consent or request of the Lessor, expressed or implied, by inference or otherwise, to any contractor, subcontractor, laborer or materialman for the performance of any labor or the furnishing of any materials, for any specific work on the Leased Property, nor as giving the Lessee the right, power or the Lessor to contract for or permit the rendering of any services or the furnishing of 32 any materials that would give rise to the filing of any construction liens against the Lessor's interest in the Leased Property. If any lien shall at any time be filed against the Leased Property, the Lessee shall cause it to be discharged of record within thirty (30) days after the date that it has notice of its filing. Lessee shall not be required to pay or discharge any lien within the thirty (30) day period, so long as Lessee shall in good faith proceed to contest the lien by appropriate proceedings. It shall furnish reasonably satisfactory evidence that funds are or will be available to pay the amount of the contested lien claim with all interest on it and costs and expenses, including reasonable attorneys' fees to be incurred in connection with it. If Lessee does not 1) cause a lien to be discharged of record within thirty (30) days after the date Lessee has notice of the filing of a lien, or 2) Lessee does not in good faith proceed to contest the lien by appropriate proceedings within the thirty (30) day period, then Lessee shall be in violation of the Lease. 12.6 Performance Bond. Prior to construction of the Mooring Field, Lessee shall secure and submit to Lessor for approval, pursuant to the City of Miami Code and Section 255.05, Florida Statutes, as may be amended, payment and performance bonds in the amount of one hundred and twenty five percent (125%) of the total construction cost of the improvements including labor and materials. Lessee shall be responsible for maintaining said bonds in full force and effect throughout the construction of the improvements. All bonds shall be issued by insurance and surety companies acceptable to the Lessor and duly qualified to transact such bonding business in the State of Florida, subject to forma and substance approval by Lessor's City Manager. In lieu of providing a performance bond, Lessee may deposit funds sufficient to cover 100% of the construction costs in a separate account and appoint a trustee to said account to ensure said funds are disbursed for construction related costs only. 33 ARTICLE XIII OWNERSHIP OF IMPROVEMENTS AND LEASED PROPERTY 13.1 Ownership of Improvements and Personal Leased Property. As of the Effective Date and throughout the Term of this Lease and any extension thereof, Lessee agrees no buildings and improvements shall be constructed by Lessee on the Leased Property without prior approval of the City Manager. Title to all buildings' alterations or improvements heretofore existing or hereafter completed on or to the Leased Property, whether or not by or at the expense of Lessee, shall, unless otherwise provided by written agreement, be vested in the City and said improvements may not be removed by Lessee upon termination of the lease. Any furniture, furnishing, equipment or other articles of movable personal property owned by Lessee and located in the Leased Property, shall be and shall remain the property of the Lessee and may be removed by it at any time during the term of this Lease so long as Lessee is not in default of any of its obligations under this Lease and the same have not become a part of the freehold and so long as such does not materially affect Lessee's ability to use said premises and conduct its operations as provided herein. However, if any of the Lessee's property is removed and such removal causes damage to the Leased Property, Lessee shall repair such damage at its sole cost and expense. Should Lessee fail to repair any damage caused to the Leased Property within thirty (30) days after receipt of written notice from Lessor directing the required repairs, Lessor shall cause the Leased Property to be repaired at the sole cost and expense of the Lessee. Lessee shall pay Lessor the full cost of such repairs within thirty (30) days of receipt of an invoice indicating the cost of such required repairs. Failure to pay such invoice shall constitute a default of this Lease as provided in Paragraph 18.1 below. Any property belonging to the Lessee and not removed by Lessee at the expiration or earlier termination of the Lease, shall, at the election of the Lessor, be deemed to be abandoned by Lessee, and the Lessor may keep or dispose of such property and restore the premises to good order within ten (10) days after billing therefore. At the expiration of the term of this Lease, Lessee shall deliver to the Lessor 34 the keys and combination to all safe cabinets, vaults, doors and other locks left by Lessee on the Leased Property. ARTICLE XIV NO LIABILITY 14.1 No Liability. In no event shall the Lessor be liable or responsible for injury, loss or damage to the personal property, improvements, fixtures and/or equipment belonging to or rented by Lessee, the Program operators, their officers, agents, employees, invitees or patrons occurring in or about the Leased Property that may be stolen, destroyed, or in any way damaged by, including, without limitation, fire, flood, steam, electricity, gas, water, rain, vandalism or theft which may leak or flow from or into any part of the Leased Property, or from the breakage, leakage, obstruction or other defects of the pipes, sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures of the Leased Property, or from hurricane or any act of God or any act of negligence of any user of the facility or occupants of the Leased Property or any person whomsoever whether such damage or injury results from conditions arising upon the Leased Property or upon other portions of the Leased Property or from other sources. Lessee indemnifies the Lessor its officers, agents and employees from and against any and all such claims even if the claims, costs, liabilities, suits, actions, damages or causes of action arise from the negligence or alleged negligence of the Lessor, including any of its employees, representatives, agents, or officials. Lessee further acknowledges that as lawful consideration for being granted the right to utilize and occupy the Leased Property, Lessee, on behalf of himself, his agents, invitees and employees, does hereby release from any legal liability the Lessor, its officers, agents and employees, from any and all claims for injury, death or property damage resulting from Lessee's use of the Leased Property. ARTICLE XV COMPLIANCE WITH LAWS 15.1 Compliance With Laws. This Lease shall be construed and enforced according to the laws of the State of Florida. Lessee accepts this Lease and hereby acknowledges that Lessee's strict compliance with all applicable federal, state and local laws, ordinances and regulations, including without limitation, the United States Army Corps of Engineers (USACE) authorizations, State of Florida Department of Environmental Protection (DEP) regulations, State Submerged Lands Lease/Permits, if any, Florida Building Code, City Zoning and Fire Codes is a condition of this Lease. Lessee shall comply therewith as the same presently exist and as they may be amended hereafter. Lessee and/or its authorized agents shall also comply with reasonable directives of the City Manager and/or his or her designee(s). Lessee and its employees, representatives, agents, officials, will not use or knowingly permit any other person to use the Mooring Field or amenities for any improper, immoral or offensive purpose or for any purpose or in any manner which is a violation of any federal, state, county or city law, ordinance, rule, order or regulation or of any applicable permits issued by any governmental authority with respect to the operation of the Leased Property or Mooring Field. Should the Lessee observe activity which may violate the covenants of this section, the Lessee shall use its best efforts to correct the offending conduct using its own resources and shall be deemed to have complied with the covenants of this section by reporting violations to the proper law enforcement agency in the event that the Lessee's property manager, dockmaster or other representative cannot correct the offending conduct. 15.2 Non -Discrimination. Lessee represents and warrants to the Lessor that Lessee does not and will not engage in discriminatory practices and that there shall be no discrimination in connection with Lessee's use of the Leased Property on account of race, national origin, ancestry, color, sex, religion, age, handicap, familial status, marital status or sexual orientation. 36 15.3 No Discrimination in Hiring. In the performance of this Lease or any extension thereof, Lessee and/or its authorized agents shall not discriminate against any employee or applicant for employment because of race, national origin, ancestry, color, sex, religion, age, handicap, familial status, marital status or sexual orientation. Lessee and/or its authorized agents will take affirmative action to insure that minority applicants are employed and that employees are fairly treated during employment without regard to their race, national origin, ancestry, color, sex, religion, age, handicap, familial status, marital status or sexual orientation. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation. 15.4 Americans with Disabilities Act. Lessee shall affirmatively comply with all applicable provisions of the Americans with Disabilities Act ("ADA") and all applicable regulations, guidelines and standards in the course of providing any work, labor or services funded by the Lessor. Additionally, Lessee shall take affirmative steps to ensure non- discrimination in the employment of disabled persons. 15.5 Conflict of Interest. Lessee is aware of the conflict of interest laws of the City (Miami City Code Chapter 2, Article V), Dade County, Florida (Dade County Code, Section 2-11.1 et, seq.) and of the State of Florida as set forth in the Florida Statutes, and agrees that it will fully comply in all respects with the terms of said laws and any future amendments thereto. Lessee further covenants that no person or entity under its employ, presently exercising any functions or responsibilities in connection with this Lease, has any personal financial interests, direct or indirect, with the Lessor. Lessee further covenants that, in the performance of this Lease, no person or entity having such conflicting interest shall be utilized in respect to services provided hereunder. Any 37 such conflict of interest(s) on the part of Lessee, its employees or associated persons, or entities must be disclosed in writing to the Lessor. Lessee acknowledges that no person or entity under its employ, presently exercising any functions or responsibilities in connection with this Lease: (i) is currently an employee of the City and has not been an employee of the City for the past two years; (ii) is a member of any board, commission or agency of the City; and (iii) will adhere to the provisions of the City Code, Chapter 2, Article, V, §2, throughout the duration of the term(s) of the Lease. Lessee further warrants that no person or entity under its employ, presently exercising any functions or responsibilities in connection with this Lease is related, specifically the spouse, son, daughter, parent, brother or sister, to: (i) any member of the commission; (ii) the mayor; (iii) any City employee; or (iv) any member of any board or agency of the City. A violation of this section is a default and shall cause the immediate termination of this Lease, imposition of the maximum fine and/or any penalties allowed by law. Additionally, violations may be considered by and subject to action by the Miami -Dade County Commission on Ethics. ARTICLE XVI ENVIRONMENTAL CONDITIONS 16.1 Radon Gas. Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in sufficient quantities, may present health risks to persons who are exposed to it over time. Levels of radon that exceed federal and state guidelines have been found in buildings in Florida. Additional information regarding radon and radon testing may be obtained from your county public health unit. 16.2 Environmental Condition of Leased Property; Lessor Disclaimer. Lessor makes no covenant, representation, or warranty as to the suitability of the Leased Property for any purpose whatsoever or as to the environmental condition thereof. Lessee acknowledges that it has had, as a result of Lessor's past use and occupancy of the Leased Property, an 38 opportunity to inspect the Leased Property, observe its physical characteristics and existing conditions and accordingly hereby waives any and all objections to or complaints about physical characteristics and existing conditions of the Leased Property, including without limitation, subsurface conditions and Hazardous Materials, in at, or under the Leased Property. Lessee further acknowledges and agrees that the Leased Property is to be leased to, and accepted by, Lessee, in its present condition, "as is" and with all faults. ARTICLE XVII INSURANCE AND INDEMNIFICATION 17.1 Insurance. In connection herewith, Lessee shall obtain and maintain or cause to be obtained and maintained in full force and effect throughout the period of this Lease, the types and amounts of insurance coverage set forth in Exhibit G attached hereto and incorporated herein by reference. If required by State, County, or City laws from time to time for work conducted on or use of municipal properties, Lessee shall obtain and maintain or cause to the obtained and maintained throughout or during the term of this Lease, as applicable, such types and amounts of payment, performance, maintenance, or restoration bond(s) as shall be required to be reviewed and approved by the City's Risk Management Department in coordination with Lessee's Risk Management or other appropriate Department. 17.2 Indemnification. Lessee shall indemnify, defend and hold harmless the Lessor and its officials, employees and agents (collectively "Indemnitees") and each of them from and against all loss, costs, penalties, fines, damages, claims, expenses (including attorney's fees) or liabilities (collectively "Liabilities") by reason of any injury to or death of any person or damage to or destruction or Toss of any property arising out of, resulting from, or in connection with (i) the performance or non-performance of the services contemplated by this Lease which is or is alleged to be directly or indirectly caused, in whole or in part, 39 by any act, omission, violation or negligence (whether active or passive) of Lessee or its employees, agents or subcontractors (collectively referred to as "Lessee"), or (ii) the failure of the Lessee to comply with any of the paragraphs herein or the failure of the Lessee to conform to statutes, ordinances, or other regulations or requirements of any governmental authority, federal or state, in connection with the performance of this Lease. Lessee expressly agrees to indemnify and hold harmless the Indemnitees, or any of them, from and against all liabilities which may be asserted by an employee or former employee of Lessee, or any of its subcontractors, as provided above, for which the Lessee's liability to such employee or former employee would otherwise be limited to payments under state Workers' Compensation or similar laws. This indemnity, and hold harmless, will be included in each permit application and location change application, and each Lessee/ permittee shall sign the page on which it appears. It shall be a condition precedent to the issuance of any such permit that the Lessee/permittee shall assume all civil liability for the applicant's acts, omissions or commissions, and from all claims, suits or actions of any kind whatsoever arising out of or resulting from the issuance of the permit, location change, compliance with applicable laws or regulations, or the operations or activities of the Lessee/ permittee and shall, further, hold the city, its officials and employees, harmless for, and defend the City, its officials and/or employees against, any civil actions, statutory or similar claims, injuries or damages arising or resulting from the permitted work, even if it is alleged that the City, its officials and/or employees were negligent, unless such injuries or damages are ultimately proven to be the result of from alleged grossly negligent or willful acts or omissions on the part of the City, its officials and/or employees. The applicant shall insure that adequate safety precautions are in effect at all times during the term of the permit. This required indemnification and hold harmless shall survive the revocation or expiration of the mural permit and shall be included in the permit application. The Lessee/ permittee voluntarily and knowingly 40 acknowledges that the granting of any such permit is sufficient, independent and valuable consideration for the giving of such indemnity, and hold harmless. ARTICLE XVIII DEFAULT AND TERMINATION PROVISIONS 18.1 Default Provisions. Each of following events is defined as an Event of Default under the terms and conditions of this Lease: A. The failure of Lessee to pay any Minimum Monthly Rents, Percentage Rents, property taxes, utility payments and any other fees related to the Leased Property and submerged lands, including but not limited to, assessments and any other additional payments which are due and owing and the continuance of the failure for a period of fifteen (15) days after notice in writing from the City to Lessee. B. The failure of the lessee to perform any of the other covenants, conditions and agreements of this Lease on the part of the lessee to be performed and the continuance of the failure for a period of fifteen (15) days after notice in writing (which notice shall specify the nature of the default) from the Lessor to the Lessee, unless with respect to any default which cannot be cured within fifteen (15) days, the Lessee, in good faith, promptly after receipt of written notice, shall have commenced and continued diligently to reasonably prosecute all actions necessary to cure the default and shall have so notified the Lessor in writing; C. The consistent failure to make timely payments of the Minimum Monthly Rent and Percentage Rent or any other additional payments due and payable by Lessee; D. The failure of the Lessee to operate the Mooring Field in compliance with the conditions of any State of Florida Submerged Land Lease or Permit, if any and as applicable, US Coast Guard Permit shall be deemed a breach of this Lease, if the 41 Lessee fails to cure violations within the timeframes established by state or federal authorities, or if Lessee exhibits a pattern of violating the Temporary and/or Submerged Land Lease or other permit conditions such that the termination of this Lease is necessary in order to preserve the City's rights pursuant to the DEP Permit, USACE Permit or Submerged Lands Lease.; E. The failure to maintain tax-exempt status under section 501 (c) (7) of the Internal Revenue Code, as amended; F. The filing of an application by the Lessee: (i) for a consent to the appointment of a receiver, trustee or liquidator of itself or all its assets; (ii) of a voluntary petition in bankruptcy or the filing of a pleading in any court of record admitting in writing its inability to pay its debts as they come due; (iii) of a general assignment for the benefit of creditors; of an answer admitting the material allegations of, or its consenting to, or defaulting in answering, a petition filed against it in any bankruptcy proceeding; G. The entry of an order, judgment or decree by any court of competent jurisdiction, adjudicating the Lessee as bankrupt, or appointing a receiver, trustee or liquidator of it or of its assets, and this order, judgment or decree continuing unstayed and in effect for any period of sixty (60) consecutive days, or if this Lease is taken under a writ of execution; or H. The repeated failure of Lessee to remit any information, to the City's satisfaction, requested to monitor compliance with this Lease. In the event this Lease is assumed by or assigned to a trustee pursuant to the provisions of the US Bankruptcy Code, as the same may be amended from time to time, the trustee shall cure any default under this Lease and shall provide the City with adequate assurance of future performance of all of 42 the terms and conditions of this Lease. If the trustee does not cure such default and provide such adequate assurances within the applicable time periods provided by the Bankruptcy Code, then this Lease shall be deemed rejected automatically and the City shall have the right immediately to possession of the Leased Property and shall be entitled to all remedies provided by the Bankruptcy Code for damages for breach or termination of this Lease. 18.2 Termination and Remedies For Default. The City may treat any one or more of the Event(s) of Default as a breach of this Lease, and thereupon at its option, without further notice or demand of any kind to the Lessee or any other person, the City shall have, in addition to every other right or remedy existing at law or in equity, do any one or more of the following: A. Elect to cancel and terminate this Lease and seek possession of the Leased Premises through appropriate legal proceedings. In the event of such termination, the City shall have the right to seek any damages sustained by it by reason of the Lessee's actions or inactions and the resulting termination of this Lease. Upon termination of this Lease, the Lessee shall immediately cease all operations at the Leased Property and surrender the Leased Property in accordance with the provisions contained herein; B. Perform, on behalf of and at the expense of the Lessee, any obligation of the Lessee under this Lease which the Lessee has failed to perform, the cost of which performance by the City, together with interest thereon at the rate of eighteen percent (18%) from the date of such expenditure, shall be deemed additional payments and shall be payable by the Lessee to the City upon demand. the Lessee 43 agrees that the City shall not be liable to the Lessee for any damage resulting to the Lessee as a result of such action; C. Exercise any other legal or equitable right or remedy which it may have under this Lease, at law or in equity. All of the remedies of the City shall be cumulative, and enforcing one or more of the remedies herein provided upon an Event of Default shall not be deemed or construed to constitute a waiver of such default or an election of remedies. Any costs and expenses incurred by the City in enforcing any of its rights or remedies under this Lease shall be deemed to be an Additional Payment and shall be repaid to the City by the Lessee upon demand. ARTICLE XIX SURRENDER OF LEASED PROPERTY 19.1 Surrender of Leased Property. Upon the expiration or termination of this Lease, Lessee shall peacefully surrender the Leased Property broom clean and in good condition and repair together with all alterations, fixtures, installation, additions and improvements which may have been made in or attached on or to the Leased Property. Upon surrender, Lessee shall promptly remove all its personal property, trade fixtures and equipment and Lessee shall repair any damage to the Leased Property caused thereby. Should Lessee fail to repair any damage caused to the Leased Property within ten (10) days after receipt of written notice from the Lessor directing the required repairs, the Lessor shall cause the Leased Property to be repaired at the sole cost and expense of Lessee. Lessee shall pay the Lessor the full cost of such repairs within ten (10) days of receipt of an invoice indicating the cost of such required repairs. At the Lessor's option, the Lessor may require Lessee to restore the Leased Property so that it shall be as it was on the Effective Date. 44 In the event Lessee fails to remove its improvements, personal property, equipment and fixtures from the Leased Property within the time limit set by the notice, said property shall be deemed abandoned and thereupon shall become the sole personal property of the Lessor. The Lessor, at its sole discretion and without liability, may remove and/or dispose of same as the Lessor sees fit, all at Lessee's sole cost and expense. ARTICLE XX MISCELLANEOUS PROVISIONS 20.1 Safety. A. City Inspections. Lessee will allow City inspectors, agents or representatives reasonable opportunity to monitor its compliance with safety precautions, as required by federal, state or local laws, rules, regulations and ordinances. By performing these inspections, the City, its agents, or representatives are not assuming any liability by virtue of these laws, rules, regulations and ordinances. Lessee shall have no recourse against the City, its agents, or representatives from the occurrence, non-occurrence or result of such inspection(s). Upon issuance of a notice to proceed/commencement, the Lessee shall contact the Risk Management Department at (305) 416-1700 to schedule a safety inspection. B. Safety Requirements, Training and Equipment. The Lessee agrees to maintain in good standing the state and federal permits required to operate the Mooring Field. The Lessee agrees to designate one or more employees who shall successfully complete CPR, Automatic External Defribillation (AED) and first aid classes within one hundred and eighty (180) days of the full execution of this Lease. Lessee shall also keep certifications updated and current as required. Lessee further agrees to maintain the following minimum safety policies and/or equipment for use in operating the Mooring Field: training program, employment policies, job descriptions, financial, accounting, office procedures; pollution control; boat sewage 45 management; litter control, oil pollution prevention (including an oil spill contingency plan); boater safety instructions and emergency response procedures. 20.2 Access to Leased Property. The City shall be entitled to access the Leased Property at any time on reasonable notice to Lessee. 20.3 Public Records. Lessee understands that the public shall have access, at all reasonable times, to City contracts, subject to the provisions of Chapter 119, Florida Statutes, and agrees to allow access by the City and the public to all documents subject to disclosure under applicable law. 20.4 Notices. All notices or other communications, which shall or may be given pursuant to this Lease shall be in writing and shall be delivered by hand, telecopy, or certified mail addressed to the other party, their counsel and/or representatives at the respective addresses indicated herein or as the same may be changed in writing from time to time. Such notice shall be deemed given on the day on which hand - delivered, faxed or, if by mail, on the fifth day after being posted or the date of actual receipt, whichever is earlier. IF TO LESSOR: City of Miami City Manager 444 SW 2nd Avenue, 10th Floor Miami, FL 33130 WITH COPY TO: City of Miami Director Department of Public Facilities Asset Management Division 444 SW Second Avenue, 3rd Floor Miami, FL 33130 WITH COPY TO: City of Miami IF TO LESSEE: Coconut Grove Sailing Club, Inc. Attn.: Commodore 2990 South Bayshore Drive Miami, FL 33133 Director Parks & Recreation Department 444 SW Second Avenue, 8th Floor Miami, FL 33130 WITH COPY TO: City of Miami City Attorney Office of the City Attorney 444 S.W. 2nd Avenue, 9th Floor Miami, FL 33130 20.5 Advertising. Lessee shall not permit any signs or advertising matter to be placed either in the interior or upon the exterior of the Leased Property without having first obtained the written approval of the Director or his/her designee, which approval may be withheld for any or no reason, at his/her sole discretion. Lessee shall, at its sole cost and expense, install, provide, maintain such signs, decorations, advertising matter or other things as may be permitted hereunder in good condition and repair at all times. Lessee must further obtain approval from all governmental authorities having jurisdiction and must comply with all applicable requirements set forth in the City of Miami Code and Zoning Ordinance. Upon the cancellation of this Lease, Lessee shall, at its sole cost and expense, remove any signs, decorations, advertising matter or other things permitted hereunder from the Property. Temporary banners announcing regattas and other public purpose events are permitted without prior approval. If any part of the Leased Property is in any way damaged by the removal of such items, said damage shall be repaired by Lessee at its sole cost and expense. Should Lessee fail to repair any damage caused to the Leased Property within ten (10) days after receipt of written notice from the Lessor directing the required repairs, the Lessor shall cause the Leased Property to be repaired at the sole cost and expense of Lessee. Lessee shall pay the Lessor the full cost of such repairs within five (5) days of receipt of an invoice indicating the cost of such required repairs. 47 Lessee hereby understands and agrees that the Lessor may, at its sole discretion, erect or place upon the Leased Property an appropriate sign indicating Lessor's having issued this Lease. 20.6 Waiver. Any waiver by either party or any breach by either party of any one or more of the covenants, conditions or provisions of this Lease shall not be construed to be a waiver of any subsequent or other breach of the same or any covenant, condition or provision of this Lease, nor shall any failure on the part of the Lessor to require or exact full and complete compliance by Lessee with any of the covenants, conditions or provisions of this Lease be construed as in any manner changing the terms hereof to prevent the Lessor from enforcing in full the provisions hereto, nor shall the terms of this Lease be changed or altered in any manner whatsoever other than by written agreement of the Lessor and Lessee. 20.7 Waiver of Jury Trial. The Parties hereby knowingly, irrevocably, voluntarily and intentionally waive any right either may have to a trial by jury in respect of any action, proceeding or counterclaim based on this Lease, or arising out of, under or in connection with this Lease or any amendment or modification of this Lease, or any other agreement executed by and between the Parties in connection with this Lease, or any course of conduct, course of dealing, statements (whether verbal or written) or actions of any party hereto. This waiver of jury trial provision is a material inducement for the Lessor and Lessee entering into the subject transaction. 20.8 Invalidity. In the event that any non -material provision of this Lease shall be held to be invalid for any reason, such invalidity shall not affect the remaining portions of this Lease and the same shall remain in full force and effect. 48 20.9 Time of Essence. It is expressly agreed by the Parties hereto that time is of the essence with respect to this Lease. If the final day of any period falls on a weekend or legal holiday, then the final day of said period or the date of performance shall be extended to the next business day thereafter. 20.10 No Interpretation Against Draftsmen. The Parties agree that no provision of this Lease shall be construed against any particular party and each party shall be deemed to have drafted this Lease. 20.11 Further Acts. In addition to the acts and deeds recited herein and contemplated to be performed, executed and/or delivered by the Parties, the Parties each agree to perform, execute and/or deliver or cause to be performed, executed and/or delivered any and all such further acts, deeds and assurances as may be necessary to consummate the transactions contemplated hereby. 20.12 Litigation. Any dispute herein shall be resolved in the courts of Miami -Dade County, Florida. The Parties shall attempt to mediate any dispute without litigation. However, this is not intended to establish mediation as a condition precedent before pursuing specific performance, equitable or injunctive relief. 20.13 No Third Party Beneficiary. This Lease is solely for the benefit of the Parties hereto and no third party shall be entitled to claim or enforce any rights hereunder. 20.14 No Partnership. Nothing contained herein shall make, or be construed to make any party a principal, agent, partner or joint venturer of the other. 49 20.15 No Recordation. The Lessee shall not record this Lease without the prior written consent of the City. However, the City Manager may require that this Lease , or a "Short Form" memorandum of this Lease be executed by both Parties and recorded. 20.16 Titles and Headings. Title and paragraph headings are for convenient reference and are not a part of this Lease. 20.17 Cancellation of Prior Tenancy -at -Will. Upon the execution by all Parties of this Lease and when approved by the City Commission of the City of Miami, the prior tenancy -at -will shall be vacated, canceled, set aside, and deemed of no further force and effect, without the need of further action by the Parties. 20.18 City Approval. Whenever prior approvals must be given hereunder by the City Manager, the Parks Director or Public Facilities Director, as applicable, the City Manager, the Parks Director or Public Facilities, respectively, shall approve or disapprove any such item in their reasonable discretion unless a different standard is expressly provided in this Lease with respect to such item. 20.19 Surrender of Leased Property. Upon the expiration or earlier termination of this Lease by lapse of time or otherwise, the Lessee shall promptly and peacefully surrender and deliver possession of the Leased Property to the Lessor in accordance with the covenants herein contained. The Lessee shall surrender the Leased Property in good, well -swept order and condition, ordinary wear and tear excepted. 20.20 Amendments. The City Manager and the Lessee by mutual agreement shall have the right but not the obligation to amend this Lease. Such amendments shall be effective only when approved by the Lessor, signed by the City Manager and the Lessee and shall be incorporated as a part of this Lease. 50 20.21 Construction of Lease. The City Manager is authorized by the City to make such amendments or modifications to the Lease as needed. This Lease shall be construed and enforced according to the laws of the State of Florida. 20.22 Severability. If any provision of the Lease, or any paragraph, sentence, clause, phrase, or word, or the application thereof, is held invalid, the remainder of the Lease shall be construed as if such invalid part were never included herein and the Lease shall be and remain valid and enforceable to the fullest extent permitted by law. 20.23 Captions. The captions contained in this Lease are inserted only as a matter of convenience and for reference and do not define, limit or prescribe the scope of this Lease or the intent of any provisions thereof. 20.24 Lease Preparation. This Lease is the result of negotiations between the Parties and has been typed/printed by one party for the convenience of both Parties. The Parties agree that this Lease shall not be construed in favor of or against either of the Parties. 20.25 Venue and Jurisdiction. This Lease shall be construed and enforced according to the laws of the State of Florida. Venue in any proceedings between the parties shall be in Miami -Dade County, Florida. Each party waives any defense, whether asserted by motion or pleading, that the aforementioned courts are an improper or inconvenient venue. Moreover, the parties consent to the personal jurisdiction of the aforementioned courts and irrevocably waive any objections to said jurisdiction. 51 20.26 City Not Liable for Delays. Lessee hereby understands and agrees that in no event shall the Lessor be liable for, or responsible to Lessee, any contractor, subcontractor, or any subconsultant, or to any other person, firm, or entity for or on account of, any stoppages or delay(s) in work herein provided for, or any damages whatsoever related thereto, because of any injunction or other legal or equitable proceedings or on account of any delay(s) for any cause over which the Lessor has no control. 20.27 Entire Lease. This Lease represents the entire understanding between the Parties hereto as to the subject matter hereof, and supersedes all prior written oral negotiations, representations, warranties, statements or agreements between the Parties hereto as to the same. There are no promises, terms and conditions, or obligations other than those contained herein, and no party has relied upon the statements or promises of the representatives of any party hereto. 20.28 Authority. Each of the Parties hereto acknowledges it is duly authorized to enter into this Lease and that the signatories below are duly authorized to execute this Lease on their respective behalf. 52 IN WITNESS WHEREOF, the Parties hereto have caused this Lease to be duly executed and delivered by their respective officers and hereunto duly authorized as of the date first above written. ATTEST: THE CITY OF MIAMI, a municipal corporation of the State of Florida By: By: Priscilla A. Thompson, CMC City Clerk Tony E. Crapp, Jr. City Manager APPROVED AS TO LEGAL FORM APPROVED AS TO AND CORRECTNESS INSURANCE REQUIREMENTS By: By: Julie O. Bru City Attorney Director Risk Management Department ATTEST: Coconut Grove Sailing Club, Inc., a Florida not -for -profit corporation By: By: Print Name & Title Print Name & Title By: Print Name & Title CORPORATE SEAL 53 EXHIBIT A STATE OF FLORIDA APPROVAL EXHIBIT B LEGAL DESCRIPTION OF LEASED PROPERTY Parcel No. 1 Submerged Lands Commence at the city Monument at the intersection of City Monument Lines of MacFarlane Road and South Bayshore Drive; thence run southeastwardly along the City Monument Line of MacFarlane Road extended southeastwardly for a distance of 398.44 feet to a point; thence deflecting to the right 82° 55'00" run southwestwardly for a distance of 464.38 feet to a point which is known as station 14+00.00 in the stationing of the Dinner Key Marina and is also the Point of Beginning of the land hereinafter described; thence deflecting to the left 82° 55'00" run southeastwardly for a distance of 510.00 feet to a point; thence deflecting to the left 83° 00'00" run northeastwardly for a distance of 395.00 feet to a point; thence deflecting to the right 13° 35'00" run northeastwardly for a distance of 730.00 feet to a point; thence deflecting to the left 17° 40'00" run northeastwardly for a distance of 50.00 feet to a point; thence deflecting to the left 90° 00'00" run northwestwardly for a distance of 885.00 feet to a point; thence deflecting to the left 90° 00'00" run northwestwardly for a distance of 50.00 feet to a point; thence deflecting to the left 1° 54'38" run southwestwardly for a distance of 580.00 feet to a point; thence deflecting to the left 9° 20'49" run southwestwardly for a distance of 546.35 feet more or less to the Point of Beginning; containing 18.45 acres more or less. Parcel No. 2 Uplands Commence at the intersection of the City monument line of McFarlane Road and the City monument line of South Bayshore Drive; thence run northeasterly along the City monument line of South Bayshore Drive a distance of 32.57 feet to a point; thence run southeastwardly along a line 32.50 feet northeasterly and parallel with the City monument line of McFarlane Road, a distance of 200.44 feet to the Point of Beginning: thence run northeastwardly along a line 200.00 feet southeasterly of and parallel with the City monument line of South Bayshore Drive a distance of 292.00 feet to a point; thence run southeastwardly along a line 324.50 feet northeasterly of and parallel with the City monument line of McFarlane Road a distance of 150 feet, more or less, to the present high tide line of Biscayne Bay; thence meandering the high tide line of Biscayne Bay run southwestwardly a distance of 298 feet, more or less, to a point 23.50 feet northeasterly of the City monument line of McFarlane Road; thence run northwestwardly along a line 32.50 feet northeasterly of and parallel with the City monument line of McFarlane Road a distance of 180 feet, more or less to the Point of Beginning, including all buildings, structures or other installations now existing thereon; containing 1.1 acres more or less. EXHIBIT C SUBMERGED PLAN VIEW OF LANDS LEASE AREA EXHIBIT D MONTHLY GROSS REVENUE REPORT EXHIBIT E REPORTING REQUIREMENTS REPORT DUE DATE Audited Financial Statement No later than 120 days after end of fiscal year Annual Report (see attached form) Anniversary Date of Lease Monthly Gross Revenue Report By 15th day of Each Month Preventive Maintenance Inspection Report Anniversary Date of Lease EXHIBIT F SAMPLE ANNUAL REPORT Please note that all of the following questions relate to data and documentation relating to the preceeding year. 1) List of free, public services to City residents, including numbers of people served by activity: List of Free, Public Services Unduplicated Nos. of Persons Served (Adults vs. Youth) / / / / / / / / / / 2) No. of CGSC Members: 3) Independent Contractors: YES, CGSC had Independent Contractors in the previous fiscal year.*** NO, CGSC did not have any Independent Contractors in the previous fiscal year. *** If you answered "YES", list the types of services provided by each category of Independent Contractor used and types of fee payments: Type of Independent Contractor Type of Payment (e.g. Flat Fee, Bonus/ Commission, Direct Payment by patrons to Contractor) 4) A. No. of CGSC Member wetslips used in Submerged Land Area: B. No. of CGSC Member wetslips used in Outer or Inner Mooring Fields: C. No. of unduplicated transients using wetslips previous year: D. No. of transient wetslips: EXHIBIT G INSURANCE REQUIREMENTS Commercial General Liability Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence $1,000,000 General Aggregate Limit $ 2,000,000 Products/Completed Operations $ 1,000,000 Personal and Advertising Injury $1,000,000 Endorsements Required: City of Miami included as an Additional Insured Premises & Operations Liability Contingent and Contractual Liability Primary Insurance Clause Endorsement II. Business Automobile Liability Limits of Liability Bodily Injury and Property Damage Liability Combined Single Limit Any Auto/Owned Autos/Scheduled Including Hired, Borrowed or Non -Owned Autos Any One Accident $ 1,000,000 Endorsements Required: City of Miami included as an Additional Insured III. Worker's Compensation Limits of Liability Statutory -State of Florida Waiver of subrogation IV. Employer's Liability Limits of Liability $1,000,000 for bodily injury caused by an accident, each accident. $1,000,000 for bodily injury caused by disease, each employee $1,000,000 for bodily injury caused by disease, policy limit V. Umbrella Policy/Excess Liability (Excess Follow Form) Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence $ 2,000,000 Aggregate Limit $ 2,000,000 Excess over CGL, Auto and W/C Endorsements Required: City of Miami listed as an Additional Insured VI. Liquor Liability (if applicable) $ 1,000,000 VII. Protection and Indemnity $ 1,000,000 VIII. Marine Operators Legal Liability/Yacht Club Legal Liability $ 1,000,000 IX. Professional Liability/ Error's & Omissions Coverage (if applicable) Limits of Liability Each Occurrence $ 1,000,000 Policy Aggregate $ 1,000,000 Retro Date X. Property Coverage The lessee shall maintain in full force and effect throughout the term of this agreement insurance coverage on all Real (buildings) and Business Personal Property of the lessee, inclusive of business income and extra expense coverage insured against All Risk of Direct Physical Loss or Damage/Special Form, including windstorm and hail coverage, and flood, if applicable. The property certificate should further reflect Replacement Cost Valuation, and should list the City of Miami as loss payee. The above policies shall provide the City of Miami with written notice of cancellation or material changes in accordance to policy provisions. Companies authorized to do business in the State of Florida, with the following qualifications, shall issue all insurance policies required above: The company must be rated no less than "A-" as to management, and no Tess than "Class V" as to Financial Strength, by the latest edition of Best's Insurance Guide, published by A.M. Best Company, Oldwick, New Jersey, or its equivalent. All policies and /or certificates of insurance are subject to review and verification by Risk Management prior to insurance approval. LEAS GREEMENT ETWEEN THE CITY OF MIAMI AND ,¢000NUT GROVE SAILING CLUB, INC. (OR THE OCCUPANCY OFTHE PROPERTY LOCATED AT 2990 SOUTH BAYSHORE DRIVE , MIAMI, FLORIDA TABLE OF CONTENTS Page, ARTICLE I DEFINITIONS J 2 1.1 Definitions 2 ARTICLE II LEASED PROPERTY ! 6 2.1 Description of Leased Property. 6 ARTICLE!!! TERM OF LEASE L 7 • 3.1 Term • / 7 3.2 Options to Renew. 7' 3.3 Holding Over 7 ARTICLE IV PURPOSE: AND USE 4.1 Purpose and Use 4.2 Mooring Field Amenities 4.3 Limitations on Commercial Activities. 4.4 ' Additional Limitations on Use of Leased Property 4.5 Community Service ARTICLE V STATE APPROVAL 5.1 State Approval. 5.2 Lessee to Cooperate Regarding State Approval ARTICLE VI CONTINUOUS DUTY TO OPERATE 6.1 Continuous Duty to Operate, - ARTICLE VII HAZARDOUS MATERIALS 7.1 Handling of Hazardous Materials. 7.2 Indemnification 7.3 - Disclosure, Warning and Notice Obligations 7.4 • Environmental Tests and Audits 7.5 Survival of Lessee's Obligations 8 8 9 9 10 11 11. 11 12 12. 12 13 13 15 15 16 16 ARTICLE VIII RENT AND OTHER PAYMENTS 16 8.1 Minimum Monthly Rent and Percentage Rent. 16 8.2 Security Deposit 19 8.3 . Returned Check Fee 20 8.4 Late Charges. 21 8.5 Adjustment of Minimum Monthly Rent, Securiand Community Service Fee. 21 8.6• •Special Assessments or Taxes, 23 ARTICLE .IX PROGRAM_OPERATORS.AND/OR INDEPENDE T CO.NTRACTORS 23 9.1 Program Operators and Independent Contractors. 23 9.2 Subleases 24 ARTICLE X MAINTENANCE and capital improvements 25 10.1 Condition of the Leased Property and Maintenance 25 Table of Contents 10.2 Lessee's Duty to Maintain. 10,3 Capital Account. Page 25 26 ARTICLE XI AUDITS AND REPORTING 27 11.1 Records of Sales 27 11.2 Audit Report. 28 11.3 Annual Report. 29 11.4 Preventative Maintenance Inspection Report. 30 ARTICLE XII POSSESSION AND CONSTRUCTION OF IMPROVEMENTS 30 12,1 Delivery of Possession of Subject Leased Property. 30 12.2 . Alterations, Additions or Replacements Generally. 31 12.3 Lessee's Construction and Improvement Obligations. 31. 12.4 Licenses, Authorizations and Permits. 32 12.5 Liens 32 12.6 Performance Bond 33 ARTICLE XIII OWNERSHIP OF IMPROVEMENTS AND LEASED PROPER ► 34 13.1 Ownership of Improvements and Personal Leased Propey: 34 ARTICLE XIV NO LIABILITY 14.1, No Liability ARTICLE XV COMPLIANCE WITH LAWS 15.1 . Compliance With Laws 15.2 - Non -Discrimination. 15.3 No Discrimination in Hiring. 15.4 Americans with Disabilities Act: 15,5 Conflict of Interest. 35 35 36 36 36 37 37 37 ARTICLE XVI ENVIRONMENTAL CONDITIONS 38 16.1 Radon Gas. 38 16,2 Environmental Condition of Leased Property; Lessor Disclaimer 38 ARTICLE XVII INSURANCE AND INDEMNIFICATION 39 17.1 Insurance 39 •1.7.2 Indemnification. 39 ARTICLE XVIII DEFAULT AND TERMINATION PROVISIONS 41 18`,1 Defauit"ProviSions. 41 18.2 Termination and Remedies For Default 43 -ARTICLE XIX.SURRENDER OF LEASED PROPERTY 0 44 19.1 Surrender of Leased Property 44 ii Table of Contents ARTICLE XX MISCELLANEOUS PROVISIONS 20.1 Safety. 20.2 Access to Leased Property. 20.3 Public Records. 20.4 Notices. 20.5 Advertising. 20.6 Waiver 20.7 Waiver of Jury Trial 20,8 Invalidity 20.9 Time of Essence. 20.10 . No Interpretation Against Draftsmen 20.11 . Further Acts: 20.12 Litigation... 20.13 No Third Party Beneficiary. 20.14 No Partnership. 20.15 No Recordation 20..16 Titles and Headings 20.17 Cancellation of Prior Tenancy -at -Will. 20.18 City Approval, 20.19. Surrender of Leased Property. 20.20 Amendments. 20.21 Construction of Lease: 20.22 Severability 20.23 • Captions. 20.24 —Lease Preparation 20.25 Venue and Jurisdiction 20,26 City. Not Liable for Delays 20.27 Entire Lease. 20.28 Authority. EXHIBITA APPROVAL. FROM THE STATEOF FLORIDA EXHIBIT B — LEGAL DESCRIPTION OF THE LEASED PROPERTY EXHIBIT C— SUBMERGED LANDS LEASE AREA EXHIBIT D — GROSS REVENUE REPORT EXHIBIT E — REPORTING REQUIREMENTS EXHIBIT F— SAMPLE ANNUAL REPORT EXHIBIT G - INSURANCE. REQUIREMENTS Page 45 45 46 46 46 47 48 48 48 49 49 49 49 49 49 50 50 50 50 50 50 51 51 51 51 51 52 52 52 LEASE AGREEMENT This Lease Agreement ("Lease") is entered this day of , 2011, but is effective as of the Effective Date as hereinafter defined) by and between the City of Miami (hereinafter called the "Lessor"), a municipal corporation of the State of Florida and the Co • nut Grove Sailing Club, Inc. (hereinafter called the "Lessee" or "CGSC"), a State of Florida n t-for-profit corporation organized under the laws of the State of Florida, hereinafter collect] - ly referred to as the "Parties." RECIT LS WHEREAS, the Lessee, a not -for profit corporation of the State of Florida, has operated a sailing club at 2990 South Bayshore Drive, Miami, Flo ida since 1946 (the "Leased Property"); and WHEREAS, the Lessee desires to co tinue to provide.marine-related recreation services to the community, including: (i) the promotio of sailing as a sport and recreational activity, (ii) sailing and boating instruction to the public; (iii) of races and regattas; and WHEREAS, the. Lease re he promotion of seamanship and navigation; (iv) the sponsorship • uires that Lessee must maintain and comply at all times with Section 18- 188, "Discrimination by less es of city -owned property— Prohibited," and Section-18-189, "Requirements for organ zations using city facilities," of the City of Miami Code, as amended; and WHEREAS, thLessee's operation of the sailing facility on Bayshore Drive has been of benefitto the general welfar of the Lessor and the general public and has brought and will continue to bring internationallpp , licity to the Lessor; and WHEREAS Section 29-D of the Charter of the Cityof Miami provides foraprocedure for waiving p competitive bidding and referendum requirements when entering into a lease, or extending an existing lease, with a non-profit, non-commercial, water -dependent organization that provides or seeks to provide marine -recreation services and/or activities to the community at any City -owned waterfront leased property, provided certain conditions are met pertaining to public access, public use, waterfront setback and view -corridor requirements, fair return to the City, compliance with master plan and requirements prescribed by the ordinance pertain ing to an organization using City -owned facilities; and WHEREAS, the Commission of the City of Miami, Florida by Resolution No, assed and adopted on , determined that It is in the best int est of the City of Miami to enter into this Agreement with the Lessee for the provision of marine -dated recreation services in accordance with the provisions of Section 29-D of the Charter of t e City of Miami and Section-18.189 of the City Code; NOW THEREFORE, in consideration of the Leased Property an mutual covenants hereinafter contained to be observed and performed, the Parties hereby do aee as follows; ARTICLE I DEFINITIONS 1.1 Definitions. Any word contained in the text of this Lease shalhbe read as the singular or the plural and as the masculine, feminine or neuter gender, as may be appl cable in the particular context. More specifically, however, for the purposes of this Lease, the follow'fig words shall have the meanings attributed to them in this Section: A. "Applicable Laws" means applicable laws, Florida Statutes, codes, City and Miami - Dade County ordinances, j dgments, decrees and injunctions from courts having Jurisdiction over the subject Leased Property, rules, requirements of state and local boards and agencies w th jurisdiction over the subject Leased Property, now existing or hereafter enacted, adopted, foreseen and unforeseen, ordinary and extraordinary,.whi h maybe applicable to the subject Leased Property or any part of it. B. "City" shall mein the City of Miami as Lessor and owner of the Leased Property. . 2 C. "City Manager" means the administrative head of the City of Miami's governme„9t who has been appointed by the City Commission of the City of Miami in accordance with the provisions of Section 15 of the Charter of the City of Miami, as a ended, and who is authorized to execute this Lease and other documents inc- ding notices required hereunder. D. "Club Members" means those individuals who have applied fir and been accepted for membership into any one of several classes of memb rship in the Coconut Grove Sailing Club, including but not limited to: (I) 'dgular; (ii) Associate; (iii) Junior and (iv) Non-resident membership. "Department of Environmental Protection" ereinafter referred to as bEP) shall refer to the administrative agency that administers and regulates the use of submerged lands.deeded to.the City a d those submerged lands which are still state-owned and leased to the City. . F. • "Director" shall mean the Direc •r of the Department of Public Facilities for the City of Miami. G. "Environmental Laws" sh. I include but'not.be limited to all applicable federal, 'state and local.environ ental, public health and safety laws, 'regulations, orders, • permits, licenses, approvals, ordinances and directives, including but not limited to, E. ail applicable requ'rements of the Clean Air Act; the Clean Water Act; the Resource Conservation a d Recovery Act, as amended by the •Hazardous and Solid Waste Amendments of 1984; the Safe Drinking Water Act; Comprehensive Environmental Response, Compensation an.d..L.iabilityAct .of 1980., as amended bythe Superfund Amendment and Reauthorization Act of 1986 ("SARA"), 42 U.S.C. § 9601, et seq. (hereinafter "CERCLA"), the Occupational Health and Safety Act; the Toxic Substances Control Act; the Pollutant Discharge Prevention and Control Act; the Water Resources Restoration and Preservatio Act; the Florida Air and Water Pollution u n Control Act; the Florida Safe Dnn7kmg Water Act; and the Florida Environmental Reorganization Act of 1 H. "Gross Revenues" shall be as define in Section 8.1, "Hazardous Materials" means any oxic or hazardous substance, material or waste and any other contaminant, pol utaht or constituent thereof, whether liquid, solid, semi -solid, sludge and/orga ous, including without limitation, chemicals, • components, pesticides, p troleu.m products, including crude oil or any fraction thereof, asbestos cont ning materials or other similar su.bstances or.materials which are regulated 6r controlled by,,under.or pursuant to any federal, state, or local statutes, laws, ordinances, codes,.rules, regulations,.orders, or decrees, not limited to, CERIA, the Solid Waste Disposal Act, as amended by the Resource Conservation) and Recovery Act of 1976 ("RCRA") and subsequent. Hazardous and Solid Waste Amendments of 1984, also known as the 1984 "RCRA" amendments, 42 U.S,C: §001 et seq., the Hazardous MaterialTransportation Act; 49 U.S.C. §1801 et.Seql., the Clean Water Act, as amended, 33 U.S.C. §1311, et. seq., the Clean Air Actas amended, 42 U.S.C. § 7401-7642, Toxic Substance Control Act, as amended, u.S.C. §2601 et seq., the Federal Insecticide, Fungicide and Rbdenticide Act II("FIFRA"),. as amended, 7 U.S.C. §136-136y, .the Emergency Planning and Community Right -to -Know Act of 1986 ("EPCRTKA' or "EPCRA"), as amended, 42 U.S.C. §11001, et: Seq. (Title Ill of SA.RA), the Occupational Safety and Health Act of 1970 ("OSHA"), as amended, 29 U.S.C. §651, et seq.; any similar state statute, • including without limitation, and=by way of example, Chapters 376 or 403, Florida 4 Statutes, as amended, or in the regulations implementing such statutes or which has been or shall be determined at any time by any agency or the court to be a hazardous or toxic substance regulated under any other Environmental Laws, or any substance or material that is or becom sre regulated byanyfederal,state or gg I local governmental authority. J: "Independent Contractors" shall mean/person(s) that provide services for the / Lessee on a non -employee basis for/a flat fee, flat rate or for other compensation l K. "Lease Date" shall mean the fist day of July which follows the date this Lease is signed by the City Manager/on behalf of the Lessor after being signed by the Lessee. basis. L. "Lease Term" or "Term" has the meaning ascribed to it in Section 3,1 and Section 3.2. M. . "Lease Year" shall m an any period of time consisting of -twelve (12) consecutive calendar months c mmencing on the Effective Date and each anniversary thereafter durin the Lease Term. N. ."Minimum An ual Rent" is the minimum rent that is due on ayearly basis from the. • Lessee, whit commences at Five Thousand Nine Hundred Sixteen and 67/100 • Dollars($5,916.67) per month as of the Effective Date, . . 0. "Mooring Field" shall mean a controlled marine anchorage facility in mid waters where boats and vessels tie up to a floating buoy affixed to the bay bottom by a line or chain, thereby providing moorage for boats and vessels. P. "Percentage Rent" has the meaning ascribed to it in Section 8.1.C. 5 Q. "Permitted Uses" means Lessee shall occupy and use the Leased P •perty primarily for water recreational and educational opportunities as more .articularly described in Paragraph 4.1, R. "Program Operators" shall be other entities or indivie uaIs that provide services and/or conduct activities which are Permitted U s at the Leased Property pursuant to an agreement with Lessee and which rece e payment for such services or activities directly from Lessee's patrons. T e City shall not be included in the definition of "Program Operator." S. • "Leased Property" shall mean the Ci -owned uplands including improvements, together with the City -owned suberged lands, as more particularly described respectively in Exhibit "B" and E hibit"C" attachedhereto and made a part hereof. T. "Rent Formula" shall mean th.• manner in which both the Percentage Rent and the Gross Revenues are calculat•d and defined in Section 8.1. U. "Section," "subsection;" aragraph," "sub=paragraph," "clause, or"sub-clause/' followed by a number or letter means the section., subsection, paragraph, sub- paragraph, clause or s b-clause of this Lease that is so designated. V. "Submerged Lands"! all mean the submerged lands described as Parcel No. 1 on Exhibit B hereto an,61 depicted in the Plan View attached as Exhibit hereto; W. "City -sponsored vent" shall mean an event sponsored by the City on the Leased Property. 1, ARTICLE II LEASED PROPERTY 2.1 Description of Leased Property. The Lessor hereby leases to Lessee and Lessee hereby leases from Lessor, the Leased Property heretofore defined for the purposes of developing, constructing and operating thereon a membership sailing club, providing sailing instruction, sailing activities, including regattas, etc. subject to the restrictions, conditions, covenants and easements herein reserved and granted. ARTICLE III TERM OF LEASE 3.1 Term. The initial term of this Lease shall be for a five (5) year period (the'' erm") commencing on July 1, 2011 (the "Effective Date") and ending on June 30, 2016, unless sock er terminated as provided herein. 3.2 Options to Renew. Lessee shall have the option to extend the term of his Lease for two (2) additional five-year terms (the "Additional Terms") upon the same terms a conditions contained in this Lease,provided • no Event of Default, as this term is defined in Paragr ph 18.1 herein has occurred. In order to exercise its option to renew f any Additional Term, Lessee must deliver written notice of its intent to renew for the additional ive-year term six (6) months in advance of the expiration of the curr.ent Term, but no earlier than tw ve (12) months prior to the expiration of the current Term. In the event the option to extend any Te is exercised, the Lessor will retain the Security Deposit set forth in Paragraph 8.2 of this Lease, fo the same purposes as described in said paragraph. The initial Term and any Add/tional Terms shall be collectively referred to as the "Lease Term" and shall be subject to all of the tef ms and conditions of this lease. 3.3 Holding Over. In the absence of any /ritten agreement to the contrary, if the Lessee Should remain in occupancy of the Leased Property after the expiration of the Initial Term and any Additional Terms, Lessee shall so remain as a tenant from month -to -month and the prorated Rent shall be the same Rent as the last in effect at the end of the Lease Term. All provisions of this Lease applicable to such tenancy shall remain in full force and effect. ARTICLE IV PURPOSE AND USE 4.1 Purpose and Use. Lessee shall use and occupy the Leased Property to provide and Promote sailing activities and incidental activities, including but not limited to individual and group s i ing instruction for adults and youth, lectures, clinics, classes, camps, regattas and other boating e ents, receptions and conferences, meetings and social events, banquets, boat storage, minor boat pairs, together with associated ancillary uses, subject to the limitations contained in this sect) n and other applicable provisions of this Lease. Lessee shall ensure that the Leased Property an all of Lessee's activities relating to mooring rentals and sailing instruction shall be available on a first -come, first -served basis to all segments of the community. Lessee shall waive at least $10,000 p year of instructional and summer camp fees for disadvantaged persons. Without limiting the ge erality of the foregoing, disadvantaged persons may include persons who suffer from a mental dis. •ility, a physical disability, reside in a low-income level household, or any combination thereof. Le see shall operate, manage, supervise and administer activities during its use of the Leased Pro erty as an independent contractor and not as an employee of. the City; Lessee may request written c. nsent from the City Manager to use the Leased Property for any other use, but shall not be authorize to use the Leased Propertyforthat use until Lessee has received the prior written consent of the CI Manager, which consent may be conditioned or withheld in the City Manager's sole discretion. This Lease and all rig s of the Lessee hereunder shall, at the option of the Lessor, cease and terminate upon discontinu-nce of the stated use and operation of the Leased Property, after having first been given written r .tice of the violation an'd/'or default as provided in Paragraph 18;1, and'after having —first been given the opportunity to cure said violation within thirty.(30) days. 8 4.2 Mooring Field Amenities. As a condition of the Lease, Lessee agrees to provide to nonmembers who lease moorings the following amenities: A. Vehicle parking on a space available basis; B. On site garbage collection and recycling facilities; C. Sewage pump -out facilities; D. On -shore potable water.; E. Shuttle service to mooring field or dinghy storage; 4.3 Limitations on Commercial Activities. Lessee may engage in commercial activities but only to the e ent necessary to service the club Members and their guests, to enhance the utilization of the Lease Property, to enhance public access • to said Leased Property and only to perform its purpose under ection 4.1: A. Lessee may sell food and beverages, includi g alcoholic beverages and Club memorabilia on the leased. premises, subj-ct to obtaining all required licenses and observing all applicable laws. B.. Lessee may charge fees.to Club Mem a rs for use of uplands boat storage, moorings, dockage fees, membershiri dues, initiation fees or rental fees for the use of banquet/dining room portions o(the .Leased Property. C. • The Lessee must employee a dock master or other employee knowledgeable about boats, sailing and boat safety pro edures and regulations to oversee.the moorings. The moorings shall be offered ona first -come, first -serve basisin compliance with City and State public purpose requirements and regulations. The. Lessee has the discretion to re -assign .vessels for various reasons, including but not limited to the following: to maximize occupancy; to maintain or repair mooring fixtures; to 9. ' relocate vessels when repairs are required; and to relocate vessels during times of weather -related or during other emergencies. E. The Lessee or Lessee's dockmaster may require evidence that a v ssel which Is slated to be moored at the mooring field must meet certain s ety, seaworthy and o sanitation regulations prior to registration and may refuse register any vessel that does not provide such proof or that does not othe wise meet the conditions set forth In this Lease, 4.4 Additional Limitations on Use of Leased Property. The following activities shall not be performed on the Leased Property:. A. No jet skis or similar watercraft may be used r stored. B. No majormaintenance repairs or overhauli g of Club Members'. boats or watercraft. C. No sale or storage of fuel on the Leased Property,.exce.pt for fuel stored on U.S. Coast Guard approved boat tank and •ropane.fuel tanks for cooking. D. No sale, distribution and/or consum tion of alcoholic beverages at the Leased Property, unless and until Lessee h =s obtained the required permits and, complies with all required permits, laws an o codes and obtains the necessary liquor liability insurance coverage to accommodate the sale of alcohol and/or alcohol. consumption on site. E. Lessee agrees to move its operations to a new City facility when the Coconut Grove Master Plan is implemented, so long as the City provides the Lessee with a. City- owne.d,,waterfront..property,w.ith li.ke.facilit.ies including..docks and bears the full cost of the move. 10 F. Lessee may only allow and accept seaworthy vessels with the proper regii tration into the mooring field and must ensure that all vessels maintain the pr e registration throughout their tenure of a mooring space at the facili G. Lessee must maintain the hedge along the Bayshore Drive Leased Property line in such a way to preserve visibility lines to the water's edge for mmunity residents. 4.5 Community Service. • It shall be a•condition of this Lease, that Lessee shall continue it practice of providing sailing instruction at least 26 weeks per year and summer sailing cam s at least 6 weeks per year to the community at large on a first come first serve basis, at Lessee's cost. ARTICLE V • STATE APPROVAL 5.1 State Approval. The City's lease of the Submerged Lands has State of Flori a Department of Environmental Protection (DEP) approval ("State Approval"), see Exhibit A. Th City shall promptly give notice to Lessee in the event DEP rescinds, modifies or terminates the approval. The Lessee's use of any state-owned, submerged le •s shall be subject to any restrictions and fees set forth by DEP for the use of said submerged lands: he use of the state-owned submerged lands Is subject to review and approval by DEP and may requir Lessee's payment of any administrative and/or lease fees associated with such submerged land as well as compliance with any applicable state laws and regulations regarding the public purpose use of the submerged lands. This Lease and any subsequent amendments and renewals thereof, are contingent upon the continued approval of DEP as currently set forth in Exhibit A. Should such continued approval require payment to the DEP,. Lessee shall -have the right -to negotiate with DEP•the amount and"payment thereof: 11 5.2 Lessee to Cooperate Regarding State Approval. Lessor and Lessee acknowledge that a portion of the Submerged Land is subject to certain restrictions contained in Deed No. 19447, as recorded in Book 3130, Page 257 of the Pu lic Records of Miami -Dade County, Florida,. made by the Trustees of the Internal Improvement Fun of the State of Florida ("Board") to the Lessor. In the event -the Board requires a finding of compliince with the deed restriction or a waiver of compliance•with such deed restriction of the additionajfbay bottom lands within thirty (30) days after the effective date of this Lease, Lessee agrees to se its good faith efforts to obtain from the Board a finding of compliance with the deed restriction or .: waiver of compliance with such deed restriction ("State Approval"). If the Board grants State Appro al subject to an assessment of state fees for the right to use the additional bay bottom lands, Lessee .grees to pay the Board the full amount of assessed fees. Should Lessee decide not to pay said asse ed state fees, and Lessee provides thirty (30) days prior written notice to Lessor of its intent not to p. the assessed state fees, Lessee shall be required to remove all improvements on the Submerged Lanes no later than ninety (90) days from the date of the notice. ARTICLE VI CONTINUOUS DUTY TO • PERATE 6.1 Continuous Duty to Operate. Except where the Leased Property is rendered un enantable by reason of fire or other casualty, Lessee shall at all times during the term of this Lease (i) .ccupy the Leased Property upon the Effective Date; (ID shall thereafter continuously conduct operatio s on the Leased Property in accordance with the terms of this Lease and shall at all times keep the Leased Property fully stocked with materials, trade fixtures and furnishings necessary and proper to operate the Leased Property, and (iii) keep the Leased Property open for operation during hours reasonably established from time to time ("Required Operating Hours") as approved by the Lessor's City Manager or his/her designated agent. As of the 12 date hereof, the minimum Required Operating Hours o the Leased Property are Monday through q p g p m' Y g Friday, excluding holidays, from 9:00 AM to 5:00 P If the Lessee fails or refuses to satisfy any of the foregoing requirements in items (i) through (iii), then in such event Lessor shall have the right, i addition to all remedies herein provided for default, to collect and Lessee shall be obligated to pay, .:s additional payments, fifty dollars ($50.00) for each day that Lessee does not comply with said req irements. ARTICLE VII AZARDOUS MATERIALS 7.1 Handling of Hazardous Mat; rials. Lessee shall, at its sole cost :nd expense, at all times and in all respects comply with all federal, ' state and local laws, statutes, ord' ances and regulations, rules, rulings, policies, orders and administrative actions and orde s applicable to Lessee and its operations relating to "hazardous materials" or "toxic substance "(collectively "Hazardous Materials Laws"), including without limitation, any Hazardous Materials La s relating to industrial hygiene, environmental protection or the use, analysis, generation, storag , disposal or transportation of any fuel, oils, flammable explosives, asbestos., urea formaldehyde, radio ctive materials or waste, infectious waste or other hazardous, toxic, • contaminated or pollutin materials, substances or wastes, including, without limitation, any "Hazardous Wastes," a out the Leased Property, or used by Lessee or at Lessee's direction or by Lessee's failure to co ply with any applicable Hazardous Materials Laws. To the extent applicable to Lessee and its operation Lessee shall, at its sole cost and expense, procure, maintain in effect and comply with all. conditions of any and all permits, licenses and other governmental and regulatory approvals relating to the presence of Hazardous Materials within, on, under or about the Leased Property required for Lessee's use of any Hazardous Materials in or about the Leased Property in conformity with all applicable Hazardous Materials Laws and prudent industry. practices regarding management of such Hazardous Materials. 13 Lessee shall not cause or permit any Hazardous Materials to be brought upon, treated, stored, disposed of, discharged, released, produced, manufactured, generated, re 'ned or used upon, about or beneaththe Leased Property or any portion thereof by the Lessee, its gents, employees, contractors, licensees, Club Members or invitees, other than Hazardous Mater' Is of a nature and in amounts which are incidental to and customarily present at similar marine fact ities. Lessee shall, at its sole cost and expense, be responsible for performing any removal, reme cation, clean-up or restoration required as a result of a release of Hazardous Materials in or about t Leased Property caused or exacerbated by the placement of Hazardous Materials in or about the Le sed Property by Lessee, or used by Lessee or at Lessee's direction'or by Lessee's failure to comply ith any Hazardous Materials Laws. Upon termination or expiration of the Hazardous Materials, including their storage or its members or guests or at Lessee's dir transported for use, storage or disposal . Materials Laws. ase, Lessee shall, at its sole cost and expense, cause all evices, placed in or about the Leased Property by Lessee ction to be removed from the Leased Property and i accordance and compliance with all applicable Hazardous Lessor recognizes and agrees hat Lessee may use materials in normal quantities that are applicable to the use of'the Leased :roperty for the purposes stated herein and that such use by Lessee shall not be deemed a violation o this section, so long as the levels are not in violation of any applicable Hazardous Materials Laws. Lesser acknowledges that it is not the intent of this Article to prohibit Lessee from operating the Leased Pr.,perty for the use described in Paragraph 4.1. Lessee may operate according to the custom of e industry so long as the use or presence of Hazardous Materials is strictly . and properly monitored cording to all applicable governmental requirements. If Lessee shall breach ' the covenants in this section, then in addition to any other rights or remedies which may be available to Lessor under this Lease or otherwise at law or in equity, Lessor may require Lessee to take all actions, or to reimburse Lessor for the costs of any and all actions taken by Lessor, as are necessary to comply with 14 all Environmental Laws and to abate or remediate any significant present or poterftial health risk with respect to any Hazardous Materials present at the Leased Property. 7,2 Indemnification. Lessee shall indemnify, protect, defend and hold Lessor free and harmless from and against any and all claims, liabilities, penalties, forfeitures, losses and expenses (including attorneys' fees) or death of or injury to any person or damage to any property whatsoever, arising from or caused in whole or in part; directly or indirectly, by the presence in or about the Leased Property of any Hazardous Materials placed in or about the Leased Property or used by Lessee or t`lessee's direction or placed or used by any club member or by Lessee's failure to comply with an applicable Hazardous Materials Law or in connection with anyremoval,remediation,clean-up,s r r to anon and materials required under the provisions of this Lease or by any regulatory agency Nothing herein shall be construed to require Lessee to indemnify, protect, defend and hold Les or free and harmless from and against claims, regulatory actions by governmental agencies, li bilities, penalties, forfeitures, losses and expenses (including attorneys' fees) or death of or inju to any person or damage to any property whatsoever, arising from or caused in whole or in part, irectly or indirectly by the presence in or about the Leased Property of any Hazardous Materials pla ed in or about the Leased Property by persons other than Lessee or its members, includingthe Lo e r. 7.3 Disclosure, Warning and No Lessee shall comply with all ice Obligations. applicable laws, ordinances and regulations in the State of Florida regarding the disclosure of the prsence or danger of Hazardous Materials. Lessee acknowledges and agrees that all applicable repo ng and warning obligations required under the Hazardous Materials Laws are the sole r.esponsibili . of Lessee,..whether or._not such .Hazardous _Materials Laws permit -or require Lessor to provide s ch reporting.or warning and Lessee shall be solely responsible for complying with applicable. Hazardous Materials Laws regarding the disclosure of, the presence or danger of 15 Hazardous Materials. Lessee shall immediately notify Lessor, in writing, of any complaints, notices, warning, reports or asserted violations of which Lessee becomes awar relating to Hazardous Materials on or about the Leased Property. Lessee shall also immediately no ify Lessor if Lessee knows or has reason to believe a complaint, notice, report or asserted violati«n will be issued with respect to the Leased Property. 7.4 Environmental Tests and Audits. Lessee shall not perform or cause to be perfor •d'any Hazardous Materials, surveys, studies, reports or inspections, relating to the Leased Prope v without obtaining Lessor's advance written . consent; which consent shall not be unreasonably .enied. At any time during the Lease Term, Lessor shall have the right to enter upon the Leased Property in order to conduct appropriate tests to establish whether the Leased Property is in compliant: with all applicable.Hazardous Materials Laws. 7.5 Survival of Lessee's Obligations. The respective rights and obligat'.ns of Lessor and Lessee under this Article VII shall survive the expiration •ortermination of this Lease ARTICLE VIII RENT AND OTHER PAYMENTS 8.1 Minimum Monthly Rent .nd Percentage Rent. Commencing on the Effe tive Date of this Lease and each and every calendar month:during the Lease Term, Lessee hereby agr es to pay the Lessor the Minimum Monthly Rent as described below. Fifteen (15) days after the firs of each month, Lessee shall pay Lessor any percentage rent applicable to • the preceding•calendar mon h, plus State of Florida State Use Tax, if applicable, for the use of Lessor's Leased Property during said month. A. Minimum Monthly Rent. • 16 The Minimum Monthly Rent is Five Thousand Nine Hundred Sixteen and 67/100 (65,916.67) ("Minimum Monthly Rent"). Commencing on the Effective Date and no later than the 15th day of each month thereafter, Lessee shall pay the Lessor the Minimum Monthly Rent. B. Percentage Rent. Percentage Rent ("Percentage Rent") shall be equal to ten percent (10%) of the monthly Gross Revenues as described below for any preceding calendar mo h less the base rent applicable to that calendar month, "Gross Revenues" shall mean the entire amoun of the revenues and/or percentages or revenues collected or accrued from all sources deriv d from the operation of the Leased Property, without limitation, including fees to Club Memb- s for the storage of boats (moorings, wetslips and other upland storage methods), dockage fees membership dues, initiation fees or fees for rental of the clubhouse, participation in and/or coordinion of international and/or national sailboat shows and competitions; from the total sale price o all food and beverages of all food and beverages sold on or from the Leased Property, including s. es made or performed by means of mechanical or other vending devices on the Leased Property, wh ther such revenues shall be credit or cash or otherwise, and whether the foregoing be collect-d or uncollected and shall include any finance charges or similar payments received by Lessee a,. a result of any of the foregoing. Gross Revenues shall not include the, following: is aq(y amount of any sales, use or gross sales tax imposed by any federal, tate or governmental authority directly oh sales and collected from customers, .provided that the amount is added to the selling price therein a.nd.pa:id.bythe Lessee.to such.go.v.e.r.nmental authority; 11. collection of Insurance proceeds; 17 iii. monies collected for events that are done for charitable purposes wherein the total amount collected is >aid to the charitable sponsor or not -for -profit organizations; iv. all gratuities paid to employe ; any restricted grants, subs' ies, credits or similar benefits received from anyfederal,state, re i•.fial or local body,agency, authority, department a g g Y� Y� p or organization whic revenues are restricted or whose restricted revenues are ear narked for capital expenditures to the Leased Property; and, vi. any restrictedonations or contributions whose revenues are earmarkefor capital expenditures, as approved by the Lessor, to the Leased property; vii. reven es received for providing instructional services that satisfy the is purpose requirements•of this lease provided they are deposited i. a special account restricted to the payment of costs associated with such instructional purposes. Gross Rev nues, whether for cash, credit, credit cards or otherwise, shall be recognized in the period the service was provided or sale took place. Payments received in advance are deferred and are recognized as revenue in the period the service is rendered or sale takes place. Grants shall be recorded as income during the period designated by the grants or when the Lessee has incurred expenditures in . compliance with the restrictions of the grantor. If a sale is by credit card, no deduction shall be allowed for any .commission ._associated -with .such sale. . Gross Revenues shall be reduced by the amount of any refund made upon any sale in or from "the Leased Property, provided said amounts had been previously included in "Gross Revenue," not to v. 18 exceed the sum so previously included, where the merchandise sold is thereer returned by the purchaser and accepted by the Lessee, and if such refund is in the form o a credit to customer, such credit shall be included in Gross Revenues when used. If there is any nderpayment of Percentage Rent, Lessee shall pay the Lessor the amount of the deficiency within t irty (30) days of the Lessor receipt of the Percentage Rent payment. If the Percentage Rent is not aid after thirty (30) days, Lessee shall be charged a late payment fee in accordance with Paragrap 8.6 until the underpayment amount is paid in full, C. Place of Payment. Every 15th day of the calendar month, essee shall pay the Lessor the Minimum Monthly Rent. and Percentage Rentand provide the cores ponding gross revenue .monthly report for the preceding calendar month to the City of Miami at the address noted below: City of Miami Department of Finance Atterytion: Treasury Management/Receipts 141 SW 2nd Avenue, 6th Floor Miami, Florida 33130 Lessee shall use a gross revenue monthly report, a sample of which is attached herewith and incorporated herein as Exhib' D to itemize any and all reportable Gross Revenues as described in Paragraph 8.1(B) herein: 8.2 Security Deposi Simultaneously with the execution of this Lease, the Lessee shall deposit with Lessor the sum of Eleven Thousand Eigh Hundred Thirty-three Dollars ;and 33/100 ($11,833.33),.(the "Security Deposit"). as • guarantee for the f , hand faithful performance by Lessee of all obligations of Lessee under this Lease or in connection with this Lease. If Lessee is in violation beyond any applicable notice or cure period, the Lessor may use, apply or retain all or any part of the Security Deposit for the payment of (I) any fee or other sum of money which Lessee was obligated to pay but did not pay, (ii) any sum expended by Lessor 19 on Lessee's behalf in accordance with the provisions of this Lease, or (iii) any sum which Lessor may expend or be required to expend as a result of Lessee's violation. Should the Lessor use, apply or retain all or any part of the Security Deposit, Lessee shall reimburse the amount usgd, applied or retained within thirty (30) days of the Lessor's application of the Security Deposit. he use, application or Y. retention of the Security Deposit or any portion thereof by the Lessor shall not prevent the Lessor from exercising any other right or remedy provided for under this Leas or at law and shall not limit any recovery to which the Lessor may be entitled otherwise. Provided Lessee is not in violation of this Lease, the Security Deposit or balance thereof, as the case may be, shall be returned to Lessee upon the termi ation of this Lease or upon anylater date after which Lessee has vacated the Leased Property in the ame condition or better as existed on the Effective Date, ordinary wear and tear excepted. Upon the eturn of the Security Deposit (or balance thereof) to the Lessee, the Lessor shall be completely reliev d of liability with respect to the Security Deposit. Lessee shall not be entitled to receive any intst on the Security Deposit. 8.3 Returned Check Fee. In the event any check is returnedd to the Lessor as uncollectible, the Lessee shall pay to the Lessor a returned check fee (the "Ret rned Check Fee") based on the following schedule: URNED CRECICEEEAIMI $50.01- $300.00 $30.00 $300.01- $800.00 $40.00 OVER $800 5% of the returned amount Such Returned Check Fee shall constitute additional fees due and payable to the, Lessor by Lessee,upon the, date of paymentof the delinquent.pay.ment referenced above. Acceptance of such Returned Check Fee by the Lessor shall not constitute a waiver of Lessee's violations with respect to 20 such overdue amounts nor prevent the Lessor from the pursuit of any remedy to which the Lessor may otherwise be entitled. 8.4 Late Charges. Lessee hereby acknowledges that late payment by the Lessee to the /essor of the Rent, cur Percentage Rent and other sums due hereunder will cause the Lessor to i costs not contemplated by this Lease, the exact amount of which will be extremely difficult to as-c'ertain. Accordingly, if any installment of the Rent, Percentage Rent or any other sum due from Lessee shall not be received by the Lessor within fifteen (15) days after the date on which such sufn is due, Lessee shall pay to the Lessor a late charge ("Late Charge"). Any amount not paid to the Lessor within this time frame will bear interest at a rate of 10% per annum from its due date. Payment of such interest shall not accrue or cure any violation by Lessee under this Lease. The Parties hereby agree that such Late Charge represents a fair and reasonable estimate of the costs the Lessor,wili incur by reason of late payment by Lessee. Acceptance of such late payments by the Lessor shall not constitute a waiver of the Lessee's violation with respect to such overdue amount, nor,frevent the Lessor from exercising any of its other rights and remedies granted hereunder or at law ors in equity. 8.5 Adjustment of Minimum Mcjfrthly Rent, Secu'rity and Community Service Fee. • 'Lessee agrees that as provided for below, the Minimum Monthly Rent and Security Deposit shall be increased by tlyree percent (3%) yearly on the anniversary date of the Effective Date. Said adjustment shall b4 hereinafter referred to as the Increase ("Increase"). B. Lessee shall deposit on the first day of•each anniversary of this Lease, an amount equal to three percent (3%) of•the previous Lease Year's Security Deposit amount. .The Security Deposit shall be held. as security for the payment and performance -by Lessee:of all.of Lessee's obligations, covenants, conditions and agreements under this Lease. Lessor shall have the right, but shall not be obligated to apply all or any portion of the Security Deposit to make any such 21 payment or perform any such act on Lessee's part without waiving its right based upon any default 'of Lessee and without releasing Lessee from any obligations hereunder. essee shall promptly deposit with Lessor the amount necessary to restore the Security D osit to.its full amount. The Security Deposit shall not be deemed liquidated damages and plication of the Security Deposit to reduce Lessor's damages shall not preclude Lessor from covering from Lessee all additional damages incurred by Lessor. The Security Deposit shall •ear no interest. If Lessee fully and faithfully complies with all of the terms, provisions :nd.conditions of the Lease, the Security Deposit shall be returned to Lessee without interest after both: (i) the expiration of the Lease Term, as may be extended pursuant to the : rovisions of this Lease and (ii) Lessee's delivery to Lessor of the entire Leased Property an improvements. In the event of a sale or transfer of Lessor's interest in the Leased Propep y, Lessor shall.have the right to transfer the Security Deposit • to such transferee and thereafter,Lessorshall be released from all liability relating to the' return of the Security Deposit and Lesse shall look to such transferee for the return of the Security Deposit. C. .For each Lea i Year, or portion thereof, in which Lessee fails to provide any of the communityservices,in whole or i n part, described in Section 4.5 herein, or fails to provide reasonable notice of ca celiation, Lessee shall be in default of this Lease and shall pay to Lessor, as Additional Payment the amount of One Thousand Dollars ($1,000.00) (hereinafter the "Community Ser ice Fee"). The payment of such Community Service Fee shall not operate to cure Lessee's default, nor shall it prevent Lessor from the pursuit of any remedy to which Lessor would otherwise be entitled to under th is Lease, including the right of termination of all of Lessee's posasessory rights hereunder. Lessor acknowledges. Lessee's active participation in providing communityservices to.the public and considered the same -in -granting -a -waiver of -competitive bidding and referendum requirements as providedin Section 29-D of the City of Miami Charter. 22 8.6 Special Assessments or Taxes. Lessee shall.pay before any fine, penalty, interest or costs is added for nonpayment, any and all charges, fees, taxes or assessments levied against the Leased Property (c•Ilectively "Assessments"), its proportionate share of use of the Leased Property and/or against p- sonal property of any kind, owned by or placed in, upon or about the Leased Property by Lessee, i luding, but not limited to, ad.valorern taxes, fire fees and parking surcharges. In the event Lessee : ppeals an Assessment, Lessee shall immediately notify the Lessor of its intention to appeal . id'Assessment, and shall furnish and keep in effecta surety bond of a responsible and substantia surety that Is reasonably acceptable to the Lessor or other security reasonably satisfactory to the ssor in an amount sufficient to pay one hundred percent (100%) of the contested Assessmeh ith,all interest on it and costs and expenses, including reasonable attorneys' fees, to be incurred n connection with it. Lessee agrees to pay such.Assessments either in lump sum or on an installmen plan. . Failure of the Lessee to pay a y Assessment or any installment payment thereof when due shall constitute a default of this Lease b Lessee, subject to the terms and conditions of Paragraph 18.1. ARTICLE IX • PROGRAM PERATORS AND/OR INDEPENDENT CONTRACTORS 9.1 Program Operators . nd Independent Contractors. Lessee shall be sole y responsible for all of its activities during its use at the Leased Property. The Lesseeshall be allow d to enter into 'professional services agreements with Program Operators and/or Independent Contractors that wish to provide or manage any•of the activities set forth in Paragraph.4.1, subject to obtaining the prior written approval of the City Manager, which approval may be conditioned.or withheld in his sole discretion. Lessee shall submit copies of any agreement(s) with proposed Program Operators and/or Independent Contractors. Lessee's agreements with Program Operators and/or Independent Contractors shall include a provision that any Program Operators and/or Independent Contractors receiving payments directly from activity or service patrons shall comply with the terms and conditions of this Lease including, but not limited to, the requiremen o pay Percentage Rent in accordance with Paragraph 8.1 herein which shall be collected by Less from Program Operator and/or Independent Contractors on a monthly basis and paid to the Lesso simultaneously with Lessee's monthly fee payments,. /! In the event that Lessee restructures or changes its meth9d of payment to Program Operators and/or Independent Contractors in a way which would respe tfvely trigger reclassification .of Program Operators'and/or Independent Contractors, Lessee agree / notify the Director within ten (10).days after such an occurrence. In such event, the Lessee sh :II immediately notify entities or individuals newly reclassified as Program Operators and/or Indepen . -nt Contractors of their obligations to immediately commence paying Percentage Rent in the manner described in Paragraph 8.1(C) herein. The Lessor, upon notification by Lessee of such event(s) shall adjust its payment records.and collections systems accordingly with payments to reflect any etroactive payments due from Program Operators and/or Independent Contractors, 9.2 Subleases, At the Lessor's request, essee shall provide to the Lessor a copy of any subleases for the Leased Property. Lessee shall incor•orate in any and all subleases provisions concerning rentals and expenses that are compatible with e Rent Formula in the Agreement. Lessee shall have the right to enter into subleases of any part o the Leased Property or Improvements at any time and from .time to time during the term of this Lease with such subtenants and upon such commercially reasonable terms and conditions as Les ee shall, in its sole discretion, deem fit and proper, provided, however, that Lessee shall not enter.r to any sublease with a any subtenant which does not deal with. Lesseeat arm's length without..firstobtaining-the City's.approval,.which approval the Lessor-rnayin.its sole -discretion withhold, If Lessee shall contemplate making any sublease with respect to which Lessor's approval is required pursuant to the foregoing sentence, Lessee shall submit to the Lessor a copy of such proposed sublease 24 together with any information concerning the identity of the subtenant as the Lessor may2easonably request. Within sixty (60) days after submission of such proposed sublease and info,rr}ya ion, the Lessor shall notify Lessee whether the proposed sublease is approved. In the event the Lessor shall fail to respond within'sixty (60) days after submission of such sublease and infor tion, the same shall be conclusively deemed to have been approved by the Lessor. ARTICLE X MAINTENANCE AND CAPITAL I PROVEMENTS 10,1 Condition of the Leased Property and Mainte .nce. Lessee accepts the Leased Property "as is," i its present condition and state of repair condition and without any representation by or on behalf o the Lessor, and agrees that.the Lessor shall, under no circumstances, be liable for any latent, paten or other defects in the Leased Property. Lessee shall maintain the Leased Property in good ord r and repair at all times and in an attractive, clean, safe and sanitary condition and shall cause no :ste or injury thereto. Lessee, at its sole cost, shall be responsible for all maintenance an • repairs to.the Leased Property required or caused by Lessee's use of any part thereof, including the s ructures, moorings, equipment, furnishings and fixtures and the appurtenances thereon and ereto. Lessee agrees to ake any changes necessary to the Leased Property at Lessee's sole cost and expense in order to co ply with all City, County and State code requirements for Lessee's occupancy thereof. 10.2 Lessee's Duty to Maintain. • Lessee shall maintain the Leased Property in good order and appearance and shall take all steps reasonably necessary to prevent deterioration of the improvements and shall comply with all applicable State and Municipal Building codes and inspection. obligations. 25 If Lessee refuses, neglects or fails to provide the above maintenance or does not provide adequate maintenance within thirty(30) days after written demand from the Lessor, Lessor may take corrective measures or cause the Leased Property to be cleaned or repaired without aiving its right based upon any violation of Lessee and without releasing Lessee from any oblige ons hereunder. In this event, Lessee shall pay the Lessor's Department of Finance, Treasury Mane -ment/Receipts Section, as additional payments, the full cost of such work within thirty (30) days of eceipt of an invoice indicating the cost of such corrective measures or clean up. Failure to pay su invoice shall constitute.a violation and default ofthis lease as provided in 18.1 herein.' Nothing herein shall imply that maintenance, repsand inspections should be performed by Lessee only at the required intervals. Lessee, shall at times, be responsible, for the condition of the Leased Property and shall perform repairs requirein a timely manner so as to prevent injury to persons and waste to the Leased Property. In addition to the above services, L: ssee shall comply with the Preventive Maintenance inspection and Reporting requirements n Paragraph 11.4 herein. 10:3 Capital Account. Lessee agreesto set up . separate reserve account designed to fund capital improvements and preventive maintenance fort e Leased Property (the "Capital Account"). A capital improvement is ' defined as a capital expeenn:iture, of three thousand dollars ($3,000) or more, resulting in the acquisition, improvement or addition to fixed assets in the form of buildings or improvements, more or less permanent in character and durable equipment with a life expectancy of at least three years. In order to meet this goal, Lessee agrees -to deposit to the Capital Account on a yearly basis by the end of each calendar year a - minimum -sum of five thousand • dollars and 00/100 ($5 000:00) such -that the ending balance of the first five year term of the lease is no less than twenty five thousand dollars and 00/100 ($25,000.00). Lessee furthermore agrees that the contributions to the Capital Account will be 26 IJ increased to maintain a minimum balance of twenty six thousand two hundrefl and fifty dollars and 00/100 ($26,250.00) at the end of the second five year term of the lease. Contributions to the Capital Account will be increased to maintain a minimum balance of twenty seven thousand five hundred and sixty five dollars and 00/100 ($27,565.00) at the end of the third five year term .of the lease. All contributions to the Capital Account will be excluded from Gross Revenue as specified in Article 8.1. ARTICLE XI AUDITS AND REPORTING 11.1 Records of Sales. During the term of this Lease and any ext nsions thereto, Lessee shall maintain and keep, or cause to be maintained and kept at the Lease Property, a full, complete and accurate record and account of all Gross Revenues arising or a cruing by virtue of its operations conducted at or from the Leased Property, for each of the terms nd all extensions thereof. All records and accounts, including sales slips (which will be serially nu bered), cash register tapes, bank statements or duplicate deposit slips, mail orders, telephone ord:fs.and all other supporting records, shall be available for inspection and audit by the Lessor and its duly authorized agents orrepresentatives during the hours of 10:00 AM to 5:00 PM; Monday throug Friday and shall be in accordance with generally accepted accounting • procedures. Lessee mus provide point of sale machines or such other cash registers or accounting control equipment de'e ed reasonably necessary, for proper control of cash and payments whether such transactions are ,'cash or credit transactions. Lessee shall keep and preserve or cause to be kept and preserved said records for not less than sixty (60) months after the payment of the Percentage Rent due under the terms hereof. For the same period of time, Lessee shall also retain copies of all sales and tax returns covering its operations and any other governmental tax or other returns which show Lessee's sales therein and shall, upon demand, deliver photographic copies thereof to the Lessor. Such records for the immediately, preceding twelve (12) months must be kept on the Leased Property. The 27 Lessee will cooperate with the Lessors internal auditors (or such other auditors designated1by Lessor) in order to facilitate the Lessor's examination of records and accounts. 11.2 Audit Report. Within one hundred twenty (120) days after the end of Lessee's first comiete Fiscal Year under the initial term of this Lease, and within' one hundred twenty (120) days after he end of each of Lessee's succeeding Fiscal Years, Lessee shall deliver or cause to be delivered to t City of Miami's Director, • Department of Public Facilities , whose address is /PM S.W. 2nd Avenue, 3` Floor, Miami, FL 33130, Financial Statements ("Financial Statements") prepared by an independent Certified Public Accountant ("CPA") for the 'fiscal year which includes any and all Gross Reve ues and Expenses received by the Lessee (and Program Operators, if any) for the use of the Le ed Property. Such Financial Statements shall be prepared by an independent CPA contracted at t e Lessee's sole.cost and expense and shall be accompanied by a certification from the CPA that suc Financial Statements accurately present Lessee's Gross Revenues, as defined herein, for the period overed by the Financial Statements . In the event Lessee is .unable to timely submit the Financial statements and provided Lessee has .commenced and diligently pursued the completion of the Fi . ncial Statements, Lessee may request from the Director a • thirty (3Q) day extension to complete th- Financial Statements, which requestsh'all•not be unreasonably • denied. In the event Lessee seeks a r-duction in the Minimum Monthly Rent or the percentage for • determining Percentage Rent, it st present its prior year's Financial Statements certified by a CPA as presenting fairly, in all material .spects, the financial position of the Lessee in conformity with Generally Accepted Accounting Princi les. In the event the L ssee fails to prepare or deliver any required Financial Statements to the Lessor within -the -time -set -forth above; the Lessor- upon-fifteen.(15) days notice to Lessee, mayelectto exercise either or both of the following remedies: (1) To treat as a defaultof this•Lease, any'such omission continuing after thirty (30) days notice thus entitling the Lessor, without further notice, to 28 exercise its right to cancel this Lease and resort to other legal remedies; and/or (ii) To cause an audit and/or accounting, pursuant to the provisions for this Lease to be made at the sole cost and expense of the Lessee. Lessee shall pay the full cost of such audit within thirty (30) days of receipt of an' invoice indicating the cost of such audit. Failure to pay such invoice shall constitute a default of this Lease as provided in Paragraph 18.1. below. Notwithstanding the above and during the Term described in Paragraph 3.1 of this Lease a d for a period expiring three (3) years after the expiration of the Term, at its option, the Lessor ma , at its sole cost and expense, audit Lessee's business affairs, records, files, sales slips and sales tax. r;cords in connection with Lessee's sales and revenues on, from or related to the use ofthe L sed Property for the period covered by any financial statement, report or record furnished to th Lessor. Lessee shall allow the Lessor or auditors of the Lessor to inspect all r any part of the source documents and records for the aforesaid monthly reports. Said inspe 'on shall be conducted at the sole.discretion of the Lessor. Records shall be available Monday th ugh Friday, inclusive, between the hours of 10:00 AM and 5:00 PM at the Leased Property..Copierequested by the -Lessor shall be furnished to the Lessor at no cost. The acceptance of Lessor of payments of Perce 4age Rent shall be without prejudice to Lessor's right to conduct an examination of Lessee's books, d records of its Gross Revenues and inventories of merchandise on the Leased Property in order t verifyithe amount of annual Gross Reve.nues made p Y 9 by Lessee in and from the Leased Property. 11.3 Annual Report. As a conditionprecedent to He commencement -of this Lease, and consistent with the. reporting--requirements-summariz din -Exhibit F attached -and -incorporated -herewith on .each September 1st during the term, he Lessee shall prepare and present, on the form attached in Exhibit F attached and incorporated her in, an Annual Report (hereinafter "Annual Report")consisting of the 29 following items describing the Lessee's use of the Leased Property and public purpose benefits accomplished during each foregoing fiscal year: A. List of Public Services to City Residents: Lessee shall provide a list of public services provided to City of Miami residents free of charge, along with the total number of adults and/or children provided with sailing instruction and/or other public services during the previous fiscal year. The records shall be available for .on - site inspection during the Lessor's annual inspection of the Leased Property/ B. List of international; national and local regattas andother public event osted and/or co -sponsored by Lessee for the previous year. C. • Numerical count of members, including members, in each categor of Lessee's club membership for previous year. • 11.4. Preventative Maintenance Inspection Report. At the end of each five (5) year term, Lessee shall, at its sole costa d expense, have a qualified property inspector perform a physical inspection of the Leased Prope ' ("Preventive Maintenance Inspection"), including all structural components and mechanical a uipment and.shall submit a report of • such inspection report to the Director or his/her designee and ' applicable, a remediati.on plan to be approved by the City Manager or his/her designee, for all c nditions requiring repair or medication as noted in the report. ARTl LE XII POSSESSION AND CONSTRUCTION OF IMPROVEMENTS 12.1 Delivery of Possession of Subject Lea ed Property. Upon execution and delivery of thisease, the Lessor shalt be deemed to have delivered possession of the Leased Property to the essee. 30 12.2 .Alterations, Additions or Replacements Generally. Except in the event of an emergency, Lessee shall not make any improvements to the leased premises without first applying for and acquiring all necessary permits, Including but not limited to, building permits. Any major improvements or alterations must be approved in writing by the City Manager or his or her designee The Lessee shall be responsible for.all costs associated with any improvements including, but not limited to, design, construction, installation, and permitting costs. The improvements and all alterations must comply with all.statutes,-laws, ordina des and • ' regulations of the State of Florida, Miami -Dade County, the City of Miami and any oth r agency.that may have jurisdiction over the Leased Property as they presently exist and.as they ay be amended hereafter. 12.3 Lessee's Construction and Improvement Obligations. Lessee, at its sole cost and expense, shall plan, design and make 'he following improvements at the Leased Property: A. Install new buoys and navigational signage'subj- t to applicable federal, state and local regulations, for the purpose of helping b.eters identify Mooring Field (hereinafter defined) boundaries and navig to accessible waterways. B. Repair or replace existing dock. C. ' Prepare and 'submit a preliminary desi• for a high -quality Mooring Field (the "Mooring Field") to the Director of P blic Facilities for Lessor's approval within nine (9) months of the Effective Date of his Lease. D. Install a high -quality Mooring Fiel along with any.appl.icable signage subject to the fede•rai, state -and -local -regulations for-the-pu:rpose.-of-providing-a-minimum'.of.175 moorings for its members, patrons and transients unless the City Manager, at the request of Lessee, agrees to a lesser number of moorings to accommodatelarge 31 size vessels. The Lessor acknowledges that the moorings on the Submerged Land have historically been positioned such that the swept area of each boat overlaps the swept area of boats on adjacent moorings. The Lessor, to the extent permitted by law, will support and approve a new mooring field with such overlap of swept areas. Lessee shall, at its sole cost and expense, complete the construction of said Mooring Field not later than five (5) years from the commencement date of t�I4's lease, unless the required permits are not issued despite Lessee's best an timely efforts to apply for such permits. Lessee agrees to diligently pursue all equired perm its. 12.4 Licenses, Authorizations and Permits. Lessee shall obtain, or cause to be obtained, and maintain in full force an !effect throughout the term of this Lease, at its sole expense, all licenses, authorizations and permits hat are,necessary for Lessee to conduct its publicly accessible, water -related recreational and eucational activities. Lessee shall be responsible for paying the cost of said applications and obtain g said licenses, authorizations and permits. 12.5 Liens. The Lessee shall not knowingly sufferor permit any I'-ns to be filed against the title to the Leased Property by any, Including but not limited to, unp.id taxes,'fees, work, labor, services or. • materials supplied to the Lessee or anyone having a ri:ht to possession of the Leased Property as a result of an agreement with or without the'consent •f the Lessee. Nothing in this Lease shall be construed as constituting the consent or request Of the Lessor, expressed or implied, by inference or otherwise to -any contractor, subcontractor, laborer or,materialrnan-for-the-performance•of any labor or the furnishing of any materials, for any specific Work on the Leased Property, nor as giving the Lessee the right, power or the Lessor to contract for or permit the rendering of any services or the furnishing of •32 any materials that would give rise to the filing of any construction liens against the Lessor's interest in the Leased Property. If any lien shall at any time be filed against the Leased Property, the Lessee shall cause it to be discharged of record within thirty (30) days after the date that it has notice of its filing. Lessee shall not be required to pay or discharge any lien within the thirty (30) day period, so long as Lessee shall in good faith proceed to contest the lien by appropriate pr rreedings. It shall furnish d pa y satisfactory evidence that funds are or will be available p y the amount of the contested lien claim with all interest on itand costs and expenses, inciudin reasonable attorneys' fees to be incurred in connection with it. If Lessee does not 1) cause a I' n to be discharged of record within thirty . (30) days after the date Lessee has notice of the filing of a , ien, or 2) Lessee does not in good faith proceed to contest the lien by appropriate proceedings ithin the thirty (30) day period, then Lessee shall be in violation of the Lease. 12.6 • Performance Bond. Prior to constructionof the Mooring Fielo, Lessee shall secure and submit to Lessor for approval, pursuant to the City of Miami Code and Sectio 255.05, Florida Statutes, as may be amended, payment , and performance bonds in the amount of on - hundred and twenty five percent (125%) of the total construction cost of the improvements in 'uding labor and materials. Lessee shall be responsible for maintaining said bonds in full force and -ffect throughout the construction of the improvements. All bonds shall be issued by insurance and surety companies acceptable to the Lessor and duly,qualifiied to. transact such bonding business in the State of Florida, subject to forma and substance approval by Lessor's City Manager. In lieu of providing a performance bond, Lessee may deposit funds sufficient to,cover 100% of the -construction -costs -in a -separate account--and-appoint.a-tr-ustee-to•said-account-to-ensure• said funds are disbursed for construction elated costs only. 33 ARTICLE XI II OWNERSHIP OF IMPROVEMENTS AND. LEASED PROPERTY 13.1 Ownership of Improvements and Personal Leased Property. As of the Effective Date and throughout the Term of this Lease and any exteion thereof, Lessee agrees n-o buildings and improvements shall be constructed by Lessee on he Leased Property without prior approval of the City Manager. Title to all buildings' alteration rimprovements heretofore existing or hereafter completed on or to the Leased Property/whether or not by or at the expense of Lessee, shall, unless otherwise provided by written agree ent, be vested in the City and said improvements may not be removed by Lessee upon termination the lease. Any furniture, furnishing, equipment or other articles movable personal property owned by Lessee and located in the Leased Property, shall be and shal remain the property of the Lessee and may be removed by it at any time during the term of this Lea e so long as Lessee is not in default of any of its obligations under this Lease and the same have not b come a part of the freehold and so long as such does not materially affect Lessee's ability to use.sapremises and conduct its operations as provided herein. However, if any of the Lessee's property s removed and such removal causes damage to the Leased Property, Lessee shall repair such dam • ge at its sole cost and expense. Should Lessee fail to repair any damage caused to the Leased Property within thirty (30) days after receipt of written notice from Lessor directing the required repairs, essor shall cause the Leased Property to be repaired at the sole cost and expense of the Lessee. Lessee shall pay Lessor the full cost of such repairs within thirty (30) days of receipt of an invoice indica r ng the cost of such required repairs. Failure to pay such invoice shall constitute a default of this Lease .s provided in Paragraph 18.1 below, Any property belonging to the Lessee and not removed by Lessee at the expiration or earlier termination of the Lease, shall, at the election of the Lessor, be deemed to be abandoned by Lessee, and the Lessor may keep or dispose of such property and restore the premises to good order within ten (10) days after billing therefore. At the expiration of the term of this Lease, Lessee shall.deliver to the Lessor 34 the keys and combination to all safe cabinets, vaults, doors and other locks left by Lessee on the Leased Property. ARTICLE XIV NO LIABILITY 14.1 No Liability. In no event shall the Lessor be liable or responsible for injury, loss or damage to the personal property, improvements, fixtures and/or equipment belonging to or rented by Lessee, the Progra operators, their officers, agents, employees, invitees or patrons occurring in or about the Lea Property that may be stolen, destroyed, or in any way damaged by, including, without Iimi ation, fire, flood, steam, electricity, gas, water, rain, vandalism or theft which may leak or flow fro or into any part of the Leased Property, or from the breakage, leakage, obstruction or other defects of the pipes, sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures ofth Leased Property, or from hurricane or any act of God or any act of negligence•of any user of the .'acility or occupants of the • Leased Property or any person whomsoever whether such damage or in ry results from conditions arising upon the Leased Property or upon other portions of the Leas Property or from other sources. Lessee indemnifies the Lessor its officers, agents and employees om and against any and all such • claims even' if the claims, costs, liabilities, suits, actions, dam es or causes of action arise•frorri the negligence or alleged negligence of the Lessor, including y of its employees, representatives, agents, or officials. Lessee further acknowledges that as lawful/c`onsideration for being granted theright to utilize and occupy the Leased Property, Lessee,.on behalf of himself, his agents, invitees and employees, does hereby' release from any legal Ilability•the Lessor, its officers, agents and employees, from•any and all claims for injury, death or property damage resulting from Lessee's use of the Leased Property. • 35 ARTICLE XV • COMPLIANCE WITH LAWS 15.1 Compliance With Laws. This Lease shall be construed and enforced according to the laws of the State of Florida. Lessee accepts this Lease and hereby acknowledges that Lessee's strict compliance with all applicable federal, state and local laws, ordinances and regulations, including without limitation, th/ United States Army Corps of Engineers (USACE) authorizations, State of Florida Department of/ Environmental Protection (DEP) regulations, State Submerged Lands Lease/Permits, if any, (orida the Building Code, City.Zoning and Fire Codes is a condition of this Lease. Lessee shall compl rewith as the same presently exist and as they may be amended hereafter. Lessee and/or its uthorized agents • shall also comply with reasonable directives of the City Manager and/or his or h-f•designee(s). Lessee and its employees, representatives, agents, officials, will not u - or knowingly permit any other person to use the Mooring Field or amenities for any improper, immral or offensive purpose or for any purpose or in any. manner which is a violation of any federal, state, county or city.law, ordinance, rule; order or regulation or of any applicable permits issued by any go ernmental authority with respect • ' to the operation of the Leased Property or Mooring Field. Should e Lessee observe activity which may violate the.covenants of this section, the Lessee shall useits.be• efforts to correct the offending. conduct using its own resources and shall be deemed to hay • complied with the covenants of this section by reporting violations to the proper law.enforce ent agency in theevent that the Lessee's property manager, dockmaster or other representativ 15.2 Non -Discrimination. Lessee represents and warrants to the L cannot correct the.offending conduct. ssor that Lessee does not and will not.engage in discriminatory practices and that there shall •e no discrimination in connection with Lessee's use of the Leased Property on account of race, nation origin, ancestry, color, sex, religion, age, handicap, familial status, marital status or sexual orientation. 36 15.3 No Discrimination in Hiring. In the performance of this Lease or any extension thereof, Lessee and/or its authorized agents shall not discriminate against any employee or applicant for employment because of race, national origin, ancestry, color, sex, religion, age, handicap, familial status, marital status or sexual orientation. Lessee and/or its authorized agents will take affirmative action to insure that minority applicants e employed and that employees are•fairly treated during employment without regard to their r ce, national origin, ancestry, color, sex, religion, age, handicap, familial status, marital status, sexual orientation. Such action shall include, but not be limited to, the following: employm fit, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or terminatio , rates of pay or other forms of compensation. 15.4 Americans with Disabilities Act. 'Lessee shall affirmatively comply with all applicable provisions of the Americans with Disabilities Act ("ADA") and all applicable regulations, guidelines and standard: in the course of providing any work, labor Or services funded by the Lessor. Additionally, Lessee sh take affirmative steps to ensure non- discrimination in the employment of disabled persons, 15.5 Conflict of interest. Lessee is aware of the conflict of interest law: of the City (Miami City Code Chapter 2, Article V), Dade.County; Florida (Dade County Code, Section -11.1 et, seq.) and of the State of Florida as set forth in the Florida Statutes, and agrees that it will . Ily comply in all respects with the terms of said laws and . any future amendments thereto. Lessee further covenants that . person or entity under its employ, presently exercising any functions•or-res•ponsibilitiesin-con.n ction•-with-this-Lease; has-any-personal-flnanciai-interests; dlr-ector indirect, with the Lessor. Lessee , rther covenantsthat, in the performance of this Lease, no person or entity having such conflicting ii terest shall be utilized in respect to services provided hereunder. Any 37 such conflict of interest(s) on the part of Lessee, its employees or associated persons, or entities must be disclosed in writing to the Lessor. Lessee acknowledges that no person or entity under its employ, presently exercising any functions or responsibilities in connection with this Lease (1) is currently an employee of the City and has not been an employee of the City for the past two years; (11) is a member of any board, commission or agency of the City; and (iii) will adhere to the provisions of the City Code, Chapter 2, ; rticle V, §2, throughout the duration of the term(s) of the Lease. Lessee further warrants that n person or entity under its employ, presently exercising any functions orresponsibilities in conne ion with this Lease is related, specifically the spouse, son, daughter, parent, brother or sister, to: ( any member of the commission; (ii) the mayor; (iii) any City employee; or (iv) any member of ny board or agency of the City. A violation of this section is a default and shall cause th immediate termination of this Lease, imposition of the maximum fine. and/or any penalties allow d by law. Additionally, violations may be considered by and subject to action by the Miami -Dade C•unty Commission on Ethics. ARTICL ' VI ENVIRONMENTL CONDITIONS 16.1 Radon Gas. Radon is a naturally occurring radios ve gas that, when it has accumulated in a building in sufficient quantities, may present health ri s to persons who are exposed to it overtime. Levels of radon that exceed federal and state gui elines have been found in buildings in Florida. Additional information regarding radon and rad n testing may be obtained from your county public health unit. 16.2 Environmental Condition of Leased Property; Lessor Disclaimer. Lessor makes no coven9ht, representation, or warranty as to the suitability of the Leased Property for any purpose whatsoever or as to the environmental condition thereof. Lessee acknowledges that it:has had, as a result of Lessor's past use and occupancy of the Leased Property, an 38 opportunity to inspect the Leased Property, observe its physical characteristics and existing conditions and accordingly hereby waives any and all objections to or complaints about physical characteristics and existing conditions of the Leased Property, including without limitation, subsurface conditions and Hazardous Materials, in at, or under the Leased Property. Lessee further acknowledges and agrees that the Leased Property is to be leased to, and accepted by, Lessee, in its present condition, "as is" and with all faults. ARTICLE.XVII INSURANCE AND INDEMNIFICATION 17.1 Insurance. In connection herewith, Lessee shall obtain and maintain or cause to be otained and maintained in full force and effect throughout the'period of this Lease, the ty -s and amounts of insurance coverage set forth in Exhibit G attached hereto and incorporate herein by reference. If required by State, County, or City laws from time to time for work con cted on or use of municipal properties, Lessee shall obtain and maintain or cause to the obtain d and maintained throughout or during the term of this Lease, as applicable, such types and amo nts of payment, performance, maintenance, or restoration bond(s) as shall be required to reviewed and approved by the City's Risk Management Department in coordination with Lessee's isk Management or other appropriate Department. 17.2 Indemnification. Lessee shall indemnify, defend and .hold 'armless the Lessor and its officials, employees and agents (collectively "Indemnitees") and each f there from and against all Loss, costs, penalties, fines, damages, claims, expenses (including attorr{ey's fees) or liabilities (collectively "Liabilities") by reason. of any injury to or death of any person or damage to or destruction or loss of any property arising out of, resulting from, or in connection with (i) the performance or non-performance of the services contemplated by this Lease which is or is alleged to be directly or indirectly caused, In whole or in part, 39 by any act, omission, violation or negligence (whether active or passive) of Lessee or its employees, agents or subcontractors (collectively referred to as "Lessee"), or (II) the failure of the Lessee to comply with any of the paragraphs herein or the failure of the Lessee to conform to statutes, ordinances, or • other regulations or requirements of any governmental authority, federal or state, in connection with the performance of this Lease. Lessee expressly agrees to indemnify and hold harmless the Indemnitees, or any of them, from and against all liabilities which may be asserted by an employee or former employee of Lessee, or any of its subcontractors, as provided above, for which the Lessee's / liability to such employee or former employee would otherwise be limited to payments under stp{e Workers' Compensation or similar laws. This indemnity, and hold harmless, will be included in each permit application a N location change application, and each Lessee/ permittee shall sign the page on which It appe. s. It shall be a condition precedent to the issuance of any such permit that the Lessee/permittee hall assume all civil liability for the applicant's acts, omissions or commissions, and from all claims, its or actions of any kind 'whatsoever arising out of or resulting from the issuance of the permit, Ication change, compliance with applicable laws or regulations, or the operations or activities of the essee/ permittee and shall, further, hold.the city, its officials and employees, harmless for, and de nd the City, its officials and/or employees against; any civil actions, statutory or similar claims, inj ies or damages arising or resulting from the permitted work, even if it Is alleged that the.City, its o iciais and/or employees were negligent, unless such injuries or damages are ultimately proven to be e result of from alleged grossly negligent or willful acts or omissions on the part of the City, its officials and/or employees. The applicant shall insure that adequate safety precautions are in effect . all times during the term of the permit. This .required -indemnification -and hold harmless -shall sirvive-the-revocation•-or-expiration-ofthe-mural-• permit and shall be included in the permit application. The Lessee/ permittee voluntarily and knowingly 40 acknowledges that the granting of any such permit is sufficient, independent and valuable consideration • for the giving of such indemnity, and hold harmless. ARTICLE XVIII DEFAULT AND TERMINATION PROVISIONS 18.1 Default Provisions. Each of following events is defined as an Event of Default under the terms and conditions of this Lease: A. The failure of Lessee to pay any Minimum Monthly Rents, Percentage Rents, property taxes, utility payments and any other fees related to the Leased ^ roperty and submerged lands, including but not limited to, assessments and a other • additional payments which are due and owing and the continuance .f the failure for a period of fifteen (15) days after notice in writing from the ( ity to Lessee. B. The failure of the lessee to perform any of the other covenants, conditions and agreements of this Lease on the part of the lessee to be ?erformed and the continuance of the failure for a period of fifteen (15) ays after notice in writing (which notice shall specify the nature of the defaul } from the Lessor to the Lessee, •unless with respect-to.any default which canno •e cured within fifteen (15) days, . the Lessee, in good faith, promptly after rec- pt of written notice, shall have commenced and continued diligently to,r;.sonably prosecute all actions necessary to cure the default and shall have so n • ified the Lessor in writing; .. • C. The consistent failure to make time payments of the Minimum Monthly Rent and Percentage Rent or.any other a itional payments --due and payable. by Lessee; D. The failure of the Lessee to of erate the Mooring Field in compliance with the - conditions of any State offf`lorida Submerged Land Lease or Permit, if any and as applicable, US Coast G tard Permit shall be deemed a breach of this Lease, if the 1 • 41 G. Lesseefails to cure violations within the. timeframes established by state or federal authorities, or if Lessee exhibits a pattern of violating the Temporary and/or Submerged Land Lease or other permit conditions such that the termination of this Lease is necessary in order to preserve the City's rights pursuant to the DEP Permit, USACE Permit or Submerged Lands Lease.; E. The failure to maintain tax-exempt.status under section 501 (c) (7) of the I ernal Revenue Code, as amended;• F. The filing of an application.by the Lessee: (i) for a consent to the apprintment of a receiver, trustee or liquidator of itself or all its assets; (ii) of a vol tary petition in bankruptcy or the filing of a pleading in'any court ofrecord ad ittingin writing its inability to pay its debts as they come due; (iii) of a general assignment for the benefitof creditors; of an answer admitting the materia allegations of, or its • consenting to, or defaulting in answering, a petition f' ed against it in any bankruptcy proceeding; . The entry of an order, judgment or decree by a y court of competent jurisdiction, adjudicating the Lessee as bankrupt, or app•inting a receiver, trustee or liquidator of it or of its assets, and this order; judg r ent or decree continuing unstayed and in 'effectfor any period of sixty (60) cons cutive days, or if this Lease is taken .under a writ of execution; or H. The repeated failure of Lessee to remit any information, to the City's satisfaction, requested to monitor.complia f ce with this Lease. In the event this Lease is assumed • by•or-assigned-to•a-trustee-pur:-cant-to-the.provisionsof the -US -Bankruptcy -Code; as -the ,. samemay be amended from time to time, the trustee shall cure any default under this . Lease and shall provide the City with adequate assurance of future performance of all of 42 the terms and conditions of this Lease. If the trustee does not cure such default and provide such adequate assurances within the applicable time periods provided by the Bankruptcy Code, then this Lease shall be deemed rejected automatically and the City shall have the right immediately to possession of the Leased Property and s .II be entitled to all remedies provided by the Bankruptcy Code for damages for breach this Lease. 18.2 Termination and Remedies For Default. r termination of The City may treat any one or more of the Event(s) of Default as a breach .f this Lease, and thereupon at its option, without further notice or demand of any kind to the L ssee or any other person, the City shall have, in addition to every other right or remedy existing at la or in equity, do any one or more of the following: A. Elect to cancel and terminate this Lease and se: possession of the Leased Premises through appropriate legal proceed' gs. In the event of such termination, the City shall have the right to seek any d. ages sustained by it by reason of the Lessee's actions or,inactions and the re • Iting termination of this Lease. Upon termination of this Lease, the Lessee all immediately cease all operations at the Leased Property and surrender the eased. Property in accordance with the provisions contained herein; B. Perform, on behalf of and at the expense of the Lessee, any obligation of the Lessee under this Lease which the Lessee has failed to perform, the cost of which performance by the City; to: ether with :interest thereon at the rate of eighteen percent (18%) from the • to of such expenditure, shall be deemed additional payments and shall b- payable by the Lessee to the City upon demand. the Lessee 43 . agrees that the City shall not be liable to the Lessee for any damage resulting to the Lessee as a result of such action; C. Exercise any other legal or equitable right or remedy which it may have under is Lease, at law or in equity. All of the remedies of the City shall be cumulative, and enforcing one or more .f the remedies herein provided upon an Event of Default shall not be deemed or constr ed to constitute a waiver of such default or an election of remedies. Any costs and expenses incurred by the City in enforcing any of its r'•hts or remedies under this Lease shall be deemed to be an Additional Payment and shall •e repaid to the City by the Lessee upon demand. ARTICLE.XIX SURRENDER OF LEASED PROPE Y 19.1 Surrender of Leased Property. Upon the expiration or termination of this Lease, L see shall peacefully surrender the Leased Property broom clean and in good condition and repai ogether with all alterations, fixtures, installation; additions and improvements which m have been made in or attached on or to the Leased Property. Upon surrender, Lessee shall prompyly remove all its personal property, trade fixtures and equipment and Lessee shall repair any dage to the Leased Property caused thereby. Should Lessee fail to repair any damage caused to the eased Property within ten (10) days after receipt of written. notice 'from the Lessor directing the equired repairs, the Lessor shall cause the Leased Property to be repaired at the sole cost and exp nse of Lessee. Lessee shall pay the Lessor the full cost of such repairs within ten (10) days of receipt/ f an invoice indicating the cost of such required repairs. At the Lessor's option, the Lessor may require Lessee to restore the Leased Property so that it shall be as it was on the Effective Date. In the event Lessee fails to remove its improvements, personal property, equipment and fixtures from the Leased Property within the time limit set by the notice, said property shall be deemed abandoned and thereupon shall become the sole personal property of the Lessor. The Lessor, at its sole discretion and without liability, may remove and/or dispose of same as the Lessor sees fit, all at Lessee's sole cost and expense. ARTICLE XX MISCELLANEOUS PROVISIONS 20.1 Safety. A. City Inspections. Lessee will allow City inspectors, agents or representatives reaso able opportunity to monitor its compliance with safety precautions, as required by federal, state local laws, rules, regulations and Ordinances. By performingthese inspections, the City, its agents, r representatives are not assuming any liability by virtue of these laws, rules, regulations and ordi antes. Lessee shall have no recourse against the City, its agents, or representatives from the oc rrence, non-occurrence or result of such inspection(s). . .U.pon issuance of a notice to proceed/comm-. cement, the Lessee shall contact the Risk Management Department at (305) 416-1700 to scedule a safety inspection. B. Safety Requirements., Training .nd Equipment. The Lessee agrees to maintain in goo • standing the state and federal permits required to operate the Mooring Field. The Lessee agrees to designate one or more employees who shall successfully complete CPR, Automatic E rnal Defribillation (AED) and first aid classes within one hundred and eighty (180) days of the f I. execution of this Lease. Lessee shall also keep certifications updated and current as required. Le see further agrees to maintain the following minimum safety policies and/or equipment for use in operating the Mooring Field: training program, employment policies, job descriptions, financial, accounting, office procedures; pollution control; boat sewage 45 management; litter control, oil pollution prevention (including an oil spill contingency plan); boater safety instructions and emergency response procedures. 20.2 Access to Leased Property, The City shall be entitled to access the Leased Property at any time on reasonable notice t Lessee. 20.3 Public Records. Lessee understands that the publicshall have access, at all reasonable times, to Ci contracts, subject to the provisions ofChapter 119, Florida Statutes, and agrees to allow access b the City and the public to all documents subject to disclosure under applicable law. 20.4 Notices. All notices or other communications, which shall or may be given p suantto this Lease shall be in writing and shall be delivered by hand, telecopy, or certified mail add -ssed to the other party, their asthe counsel and/or representatives at the respective addresses indicate herein or same m may be changed in writing from time to time. Such notice shall be deem d given on the day on which.hand- delivered., faxed or, if by mail, on the fifth day after being pos d or the date.of actual receipt, whichever is earlier, IF TO LESSOR: City of Miami City Manager 4'M SW 2ndAvenue, 10th Floor Miami, FL 33130 WITH COPY TO: City of Miami Director Department of Public Facilities Asset Management Division 444 SW Second Avenue, 3rd Floor Miami, FL33130 WITH COPY TO: City of Miami F TO LESSEE: Coconut Grove Sailing Club, Inc. Attn.: Commodore 2990 South Bayshore Drive Miami, FL:33133 46 Director Parks & Recreation Department 444 SW Second Avenue, ath Floor Miami, FL33130 WITH COPY TO:. City of Miami City Attorney Office of the City Attorney 444 S.W. 2nd Avenue, 9th Floor Miami, FL33130 20.5 Advertising. Lessee shallnot permit any signs or advertising matter to be placed either in the interior or upon the exterior of the Leased Property without having first obtained the written approva of the Director or his/her designee, which approval may be withheld for any or no reason, at his/her.ole discretion. -Lessee shall, at its sole cost and expense, install, provide, maintain such signs, .-corations, advertising matter or other things as may be permitted. hereunder in good condition an repair at all times. Lessee must further obtain approval from all governmental authorities having J sdiction and must comply with all applicable requirements set forth in the City of Miami Code . d Zoning Ordinance. Upon the cancellation of this Lease, Lessee shall, atits sole cost and expens , remove any signs, decorations, advertising matter or other things permitted hereunder from e Property. Temporary banners announcing regattas and other public purpose events are permitted without prior approval. If any part of the Leased Property is in any way damaged by the r: oval of such items, said damage shall be repaired by Lessee at its sole cost and expense. Sh• uld Lessee fail to repair any damage caused to the Leased Property within ten (10).days after recei of written notice from the .Lessor directing the... required repairs, the Lessor shall cause the Le sed Property to be repaired at the sole cost and expense of Lessee. Lessee shall pay the Lessor the full cost of such repairs within five (5) days of receipt of an invoice indicating the cost ofsuch required repairs. 47 Lessee hereby understands and agrees that the Lessor may, at its sole discretion, erect or place upon the Leased Property an appropriate sign indicating Lessor's having issued this Lease. 20.6 Waiver. Any waiver by either party or any breach by either party of any one or more of the covenants, conditions or provisions of this Lease shall not be construed to be a waiver of any subsequent or other breach of the same or any covenant, condition or provision of this Lease, nor shall any failure on the • part of the Lessor to require or exact full and complete compliance by Lessee with any of the coven nts, conditions or provisions of this Lease be construed as in any manner changing the terms hereof t • prevent the Lessor from enforcing in full the provisions hereto, nor shall the terms of this Lea changed or altered in any manner whatsoever other than by written agreement of the Les or and Lessee. 20.7 Waiver of Jury Trial. The Parties hereby knowingly, irrevocably, voluntarily and intentionally w: ive any right either may have' to a trial -by jury in respect of any action, proceeding or counterclaim eased on this Lease, or arising out of, under or in connection with this Lease or any amendment or odification of this Lease, or any other agreement executed by and'between the Parties in connection ith this Lease, or any course of conduct, course of dealing, statements (whether verbal or written) or actions of any party hereto. This waiver of jury trial provision is a material inducement for the Lessor and Lessee entering into the subject transaction. 20.8 Invalidity. In the event that any non -material provision of this Leas: shall be held to be invalid for any • reason, such invalidity shall not affectthe remaining portions of this Lease and the same shall remain in full force and effect. 48 20.9 Time of Essence. It is expressly agreed by the Parties hereto that time is o the essence with respect to this Lease. If the final day of any period falls on a weekend or legal holi a ay, then the final day of said period or the date of performance shall be extended to the next bus! ess day thereafter. 20.10 . No Interpretation Against Draftsmen. The Parties agree that no provision of is Lease shall be construed against any particular party and each party shall be deemed to have d .fted this Lease. 20.11 Further Acts. • In addition to the acts and eeds recited herein and contemplated to be performed, executed and/or delivered by the Parties, he Parties each agree to perform, execute.and/or deliver or cause.to be performed, executed and/or elivered any and all such further acts, deeds and.assurancesas may be necessary to consummate he transactions contemplated hereby. 20.12 Litigation. Any dispute h rein shall .be resolved in the courts of Miami -Dade County, Florida. The Parties shall attempt to me iate any dispute without litigation. However, this is not intended to establish mediation as a co dition precedent before pursuing specific performance, equitable or injunctive relief.. 20.13 No Thiro Party Beneficiary. .. This Le se is solely for the benefit of the Parties hereto and no third party shall be entitled to . claim or enfo ce any rights hereunder. • 20.14 No rartnership. N ething contained herein shall make, or be construed to make any party a principal, agent, • partner erjoint venturer of the other. . 49 20.15 No Recordation, The Lessee shall not record this Lease without the prior written consent of the arty. However, the City Manager may require that this Lease , or a "Short Form" mem.. andum of this Lease be executed by both Parties and recorded. 20.16 Titles and Headings. Title and paragraph headings are for convenient reference and e not a part of this Lease. 20.17 Cancellation of Prior Tenancy -at -Will. Upon the execution by all Parties of this Lease and whe approved by the City Commission of the City of Miami, .the prior tenancy -at -will shall be' vacated, anceled, set aside, and deemed ofno further force and effect, without the need of further actiby the .Parties. 20.18 City Approval. Whenever prior approvals must be given ereunder by the City Manager, the Parks Director or • Public Facilities Director, as applicable, the Cit Manager, the Parks Director or Public Facilities, respectively, shall approve or disapprove a ' y such item in their reasonable discretion unless a different standard is expressly provided 'n-this Lease with respect to such item. 20.19 Surrender Of Leased Propert Upon the expiration or earlier termination of this Lease by lapse of time or otherwise, the Lessee shall promptly and'peac ully surrender and deliver possession of the Leased Property to the Lessor in accordance with the covenants herein contained. The Lessee shall surrender the Leased Property in good, well-swep order and condition, ordinary wear and tear excepted. 20.20 Amendments. The City Manager and the Lessee by mutual agreement shall have the right but not the obligation to amend this Lease. Such amendments shall be effective only when approved by the Lessor, signed by the City Manager and the Lessee and shall be incorporated as a part of this Lease. 50 20.21 Construction of Lease. The City Manager is authorized by the City to make such, amendments or modifications to the Lease as needed, This Lease shall be construed and enforced according to the laws of the.State of Florida. 20.22 Severebility. If any provision of the Lease, or any paragraph, sentence, clause, phrase, or word, or the application thereof, is held invalid, the remainder of the Lease shall be construed as if such in : id part were never included herein and the Lease shall be and remain valid and enforceable to e fullest extent permitted by law. 20,23 Captions. • The captions contained in this Lease are inserted•only as a matter f convenience and for • reference and do not define, limit or prescribe the scope of this Lease r the intent of any provisions. thereof. 20.24 Lease Preparation. This Lease is the result of negotiations between he Parties and has been typed/printed by .one party for the convenience of both Parties. The P-sties agree that this Lease shall not be construed in favor of or against either of the Part( s. - 20.25 Venue and Jurisdiction. This Lease shall be construed and enforced according to the laws'of the State of Florida. Venue • • • In any proceedings between the parties shall b in Miami -Dade County, Florida. Each. party waives any • defense, whether asserted by motion or ple.• ing, that the aforementioned'courts are an improper or inconvenient venue. Moreover, the parties consent to the personal jurisdiction of the aforementioned courts and irrevocablywaive any object q s to said jurisdiction. 51 20.26 City Not Liable for Delays. • Lessee hereby understands and agrees that in no event shall th essor be liable for, or • responsible to Lessee, any contractor, subcontractor, or any subco sultant, or to any other person, firm, or entity for or on account of, any stoppages or delay(s) in w fk herein provided for, or any damages other . whatsoever related thereto, because of any injunction o r• legal or equitable proceedings or on account of any delay(s) for any cause over which th Lessor has no control. 20.27 Entire Lease. This Lease represents the entire derstanding between the Parties hereto as to the subject matter' hereof, and supersedes all prior written oral negotiations, representations, warranties, statements or agreements betw n the Par -ties hereto as to the same. There are no promises, terms and conditions, or obligation: otherthan those contained herein, and no party has relied upon the statements or promises . the representatives of any party hereto. 20.28 Authority.. Each of th Parties hereto acknowledges it is duly authorized to enter into this Lease and that the signatories .elow are duly authorized to execute this Lease on their respective behalf,- 52 IN WITNESS WHEREOF,_the Parties hereto have caused this Lease to be duly executed and delivered by their respective officers and hereunto duly authorized as of the date first above written. ATTEST: THE CITY OF MIAMI, a municipal corporation of the State of Florida By: By: Priscilla A. Thompson, CMC ' Tony E. Crapp, Jr. City Clerk City Manager APPROVED. AS TO LEGAL FORM AND CORRECTNESS By: Julie O. Bru City Attorney ATTEST: APPROVED AS TO INSURANCE. REQUIREMENTS • r• By: ( . • Director Risk Managem4'nt Department f / Coconut Gro e SailingClub, Inc., a Florida no -for-profit corporation / 1 By: By: Print Name & Title By: Print Name & Title • • / Print:Name & Title CORPORATE SEAL 53 EXHIBIT A STATE OF FLORIDA APPROVAL • „.., . _ •calkoftws.tualoccelocrOutc"cootalokies*Wanc April 15, 2010 Mr. Peter Branning Coconut Grove Sailing Club 2990 South Bayshore Drive Miami, -Florida 33133 Dear Mr, Brartning: Florida Department of Environmental Protection Marjory Stoneman Douglas Building 3900 Commomvealth Boulevard Tallabasee,'Florlda3Z399-3000 ' Cm-irli Crit Goiferilor I t CirriVr110! t1rIIILW. • Because the Coconut Grove Sailing Club has (i) revised its mooting h nse agreement to provide that the sailboat moorings are open tothe general public on a "fi st come, first serve" basis as defined in subsection 18-21.003(27), Florida Administrative Co , with no qualifying requirement for membership in the club and; (ii) amended its charter d. updated its website to reflect this, the Division of State Lands has. cleterMined that the fai ty now complies with the restrictive covenant in Board of Trustees of theintemal Irpprov ent Trust Fund Deed NO. 19447 to the City of Miami that reqiiires the deeded lands fibe use solely for public purposes, including municipal purposes and not otherwise." If you have any questions or need additional information, pie feel free to call me at.850-245- 2806 or -via email at scott.woolam@dep.state.fl.us Sincerely, Q.) Scott E: Woolarn, Chief • Bureau. of Public Land Administration • Division of State Lands • / "More Pnrcess" EXHIBIT B LEGAL DESCRIPTION OF LEASED PROPERTY Parcel No. 1 Submerged Lands Commenceat the city Monument at the intersection of City Monument Lines of MacFarlane South Bayshore Drive; thence run southeastwardly along the City Monument Line of MacFar extended southeastwardly fora distance of 398,44 feet toe point; thence deflecting to the 55'00"' run southwestwardly for a distance of 464.38 feet to a point which is known as sta in the stationing of the Dinner Key Marina and is also the Point of Beginning of the land described; thence deflecting to the left 82° .55'00" run southeastwardly for a distance point; thence deflecting to the left 83° 00'00" run northeastwardly for a distance of point; thence deflecting to the right 13° 35'00" run northeastwardly for a distance point; thence deflecting to the.left 17° 40'00" run northeastwardly for a distance point; thence deflecting to the left 90° 00'00" run northwestwardly for a distan point; thence deflecting to the left 90° 00'00" run northwestwardly for a dista 'point; thence 'deflecting to the left 1° 54'38".run southwestwardly for a dist point; thence deflecting to the left 9° 20'49" run southwestwardly for a dis less to the Point of Beginning; containing,18.45 acres moreor Tess. Parcel No. 2 Uplands Commence at the intersection of the City monument line of McFarla line of South Bayshore.Drive; thencerun northeasterly along the CI Drive a distance of 32.57 feet to a point; thence run southeastwar northeasterly and parallel with the City monument line of McFar the Point of Beginning: thence run northeastwardly along a line with -the -City•monument- line -of South• Bayshore Drive•a-distan southeastwardly along a line 324.50 feet northeasterly of an McFarlane Road a distance of 150 feet, more or less, to the thence meandering the high tide line of Biscayne Bay run s or less, to a point 23.50 feet northeasterly of the City mo northwestwardly along a line 32.50 feet northeasterly o McFarlane Road a distance of 180 feet, 'more or less to structures. or other installations now existing thereon' ad and ne Road ight 82° ion 14+00.00 ereinafter f 510.00 feet to a 5.00 feet to a 730.00 feet to a f 50.00 feet to a of 885.00 feet to a ce of 50.00 feet to a ce of 580:00 feet to a nce of 546.35. feet more or e-R`oad and the City monument monument line. of South Bayshore ly along a line 32.50 feet ne Road, a distance of 200.44 feet to 00.00 feet southeasterly of and parallel e-of 292.00feetto a -point; thence. run - parallel with the City monument line of resent high tide line of Biscayne Bay; uthwestwardly a distance of 298 feet,.more ument line of McFarlane Road; thence run and parallel with the City monument line of he Point of Beginning, including all buildings; containing 1.1 acres more or less. EXHIBIT C SUBMERGED PLAN VIEW OF LANDS LEASE AREA 6.35" F Sk E7CN - Dfi _ P,P-Dp cPTY ret HE LEASE© . ro -co coA,.ur *-•RovA.1-6 CLU,3 ©F.xtit.Pz4IOI .r.. or,=ENa-litifk&1N.ff .. c r of MIAMI6-F.L.O.,P-¢Di •.._. PiTT 7r4 4 i 64- f 3Z-4 1p33_ .. ScdL-E l=100! --• .. . - - 1-1/i7-_. y,5 t. _ - 1• G- _- /. --. �i . J { `r 50 1- , EXHIBIT D MONTHLY GROSS REVENUE REPORT COCONUT GRAVE SAILING CLUB (CGSC) , Monthly Gross Revenue Report Month of • Applicable Activity . Gross Revenue Percentage Percentage Fee Boat Storage Rental: 10% -Transient 10% -Dry Storage . 10% Inner Moorings 10% Fuel 10% Restaurant/Liquor Sales Miscellaneous Revenues Totals State Use Tax Total Percentage St : se Tax paid directly by Rent and FI.State Lessee"*" Use Tax Due City Minimum Rent Amount 5,916.67 414.17 GREATER OF MINIMUM FEES VS 10% PERCENTAGF/�EE AMOUNT DUE THIS PERIOD • I hereby certify to the accuracy of this report, and r/knowledge that Coconut Grove Sailing Club (CGSC) has paid all applicable Florida State sales and use taxes which are due and payable, yrFether directly or Indirectly, under FL Statute 212 to the State of Florida Department of Revenue'*". The City of Miami can/ rely on the above monthly report to be true and accurate as submitted. SIGNATURE REMARKS' DATE • Lessee shall report Gross Revenues of thlpreceding month on or before the 15th of each month.. Any Percentage Rent due and payable shall be remitted with this report. Make check payable to the Cityof Miami end'retum this report together with the proper remittance to: CITY OF.MIAMI FINANCE DEPARTMENT 444 SW 2ND AVENUE, 6TH FLOOR ATTENTION: TREASURY/RECEIPTS MIAMI, FL. 33130 EXHIBIT E REPORTING REQUIREMENTS REPORT DUE DATE Audited Financial Statement No later than 120 ays after end of fiscal year Annual Report (see attached form) Anniversary I:te of Lease Monthly Gross Revenue Report By 15th :y of Each Month Preventive Maintenance Inspection Report • Anni ersary Date of Lease EXHIBIT F SAMPLE ANNUAL REPO Please note that all of the following questions relate to data : nd documentation relating to the preceeding year. 1) List of free, public services to City residents, inclining numbers of. people served by activity: 2) / / /1. No. of•CGSC Members: /' Independent Contractors: /YES, CGSC had Independent Contractors in the previous fiscal year.***- / 'NO, CGSC did not have any Independent Contractors in the previous fiscal year. • *** If you answered "YES"., list the types of 'services provided by each category pf Inde.pender t.Contractor used and,types..of fee..payments: 4) A. No. of CGSC Member wetslips used in Submerged Land Area: B. No. of CGSC Member wetslips used in Outer or Inner Mooring Fields: C. No. of unduplicated transients using wetslips previous year: D. No. of transient wetslips: EXHIBIT G INSURANCE REQUIREMENTS Commercial General Liability Limits of Liability Bodily Injury and Property Damage Liability' Each Occurrence • $1,000,000 General Aggregate Limit $ 2,000,000 Products/Completed Operations $ 1,000,000 Personal and Advertising Injury $1,000,00 Endorsements Required: City of Miami included as an Additional Insured Premises & Operations Liability Contingent and Contractual Liability Primary Insurance Clause Endorsement [I. Business Automobile liability • Limits of Liability Bodily Injury and Property Damage Lability Combined Single Limit Any Auto/Owned Autos/Schedule Including Hired, Borrowed or No -Owned Autos Any One Accident $ 1,000,000 Endorsements Required: City of Miami included'as an Additional Insured Worker's Compensation Limits of Liability Statutory -State of Florid Waiver of subrogation IV. Employer's Liability Limits of Liability $1,000,000 for bodily njury caused by an accident, each accident. $1,000,000 for bodily pjury caused by disease, each employee $1,000,000 for bodily injury caused by disease, policy limit V. Umbrella Policy/Excess Liability (Excess Follow Form) Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence • ' • -$ 2,000,000 Aggregate Limit $ 2,000,000 Excess over CGL, Auto and W/C Endorsements Required: City of Miami listed as an Additional Insured VI. Liquor Liability (if applicable) $ 1,000,000 VII. Protection and Indemnity $ 1,000000 VIII. Marine Operators Legal Liability/Yacht Club Legal liability $ 1,000,000 IX. Professional Liability/Error's & Omissions Coverage (if applicable) Limits of Liability Each Occurrence $ 1,000,000 Policy Aggregate $ 1,000,000 Retro Date X. Property Coverage The lessee shall maintain in full force and effect throughout the term of this .: reement insurance coverage on all Real (buildings) and Business Personal Property of the les ee, inclusive of business income and extra expense coverage insured against All Risk of Direct Ph ical Loss or Damage/Special Form, including windstorm and hail coverage, and flood, if appli able. The property certificate should further reflect Replacement Cost Valuation, and should list t - City of Miami as Toss payee. The above policies shall provide the City of Miami with written notice of . ncellation or material changes in accordance to policy provisions. Companies authorized to do business in the State of Florida, wi h the following qualifications, shall issue all insurance policies required above: The company must be rated no less than "A-" as to management, nd no less than "Class V" as to Financial Strength, by the latest edition of Best's Insurance Guid , published by A.M. Best Company, Oldwick, New Jersey, or its equivalent. All policies and /or certifcates of insurance are subject to review and verification by Risk Management prior to insuranc approval. 'MIAMI 907729 v3 (2K)