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HomeMy WebLinkAboutExhibit 1 SUBorlyott octxraill LEASE BETWEEN THE CITY OF MIAMI AND GROVE BAY INVESTMENT GROUP, LLC FOR THE USE OF A CERTAIN PORTION OF THE CITY -OWNED PROPERTY LOCATED AT 3385 Pan American Drive, Miami, Florida 3349 Pan American Drive, Miami, Florida & 3351 & 3377 Charthouse Drive, Miami, Florida LEASE AGREEMENT This LEASE AGREEMENT ("Lease") is made as of the day of , 2013, by and between the CITY OF MIAMI, FLORIDA ("Lessor"), a municipal corporation of the State of Florida having its offices at 3500 Pan American Drive, Miami, Florida, 33133 and GROVE BAY INVESTMENT GROUP, LLC, a Florida limited liability company, having its offices at 2950 SW 27 Avenue, Miaini, Florida, 33133 ("Lessee") The Lessoi and Lessee, togethei the "Parties," agree as follows ARTICLE I DEFINITIONS Section 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, fenunine 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 1 1 1 "Additional Rent" means all additional sums, charges, or amounts of whatevei nature to be paid by Lessee, not defined as Minimum Base Rent or Percentage Rent, in accordance with the provisions of this Lease, whether or not such sums, charges or amounts are ieferied to as additional rent 1 1 2 "Applicable Law" means all laws of the United States, Florida Statutes, City of Miami and Miami -Dade County ordinances, codes, rules, regulations, resolutions, orders, judgments, decrees and injunctions from courts having jurisdiction ovei the Property, rules, and requnements of State and local hoards and agencies with jurisdiction over the Property, now existing or hereafter enacted, adopted, foreseen and unforeseen, ordinary and extraordinary, which may be applicable to the Property or any part of it I 1 3 "Assrgtunent" means the complete transfer of the nghts and obligations of the Lessee under the Lease to a third party, whereupon the third party Assignee becomes the Lessee under the Lease and takes over all of the Property and the rent and other obligations associated with the Lease, thereby assuming the prior tenant's rights and obligations 1 1 4 "Assignee" means the third -party entity taking over the rights and obligations of the Lessee or assignor or owner of the Leasehold Estate 1 1 6 "Business Days" means Monday through Friday excluding legal holidays 1 1 7 'Casual Restaurant" means the restaurant operating at the location indicated tor the casual restaurant in the Proposal characterized by a casual atmosphere and generally at a price point lower than that of the Formal Restaurant 1 1 8 "City means the City of Mtarrri, a municipal Corporation of the State of Florida 1 1 9 "City Manager" means the administrative head of the City's government who is authorized to execute this Lease and other documents included notices hereunder 1 1 10 "Date of Taking" means the earlier of (t) the date on which actual possession of all or less than all of the Property, as the case may be, is acquired by any lawful power or authonty pursuant to the provisions of Applicable Law, or (u) the date on which title to all or less than all of the Property, as the case may be, has vested in any lawful power or authonty pursuant to the provisions of Applicable Law 1 1 11 "DEP" means the State of Florida Department of Environmental Protection 1 1 12 "Effective Date" means the date this Lease is fully executed and legally binding upon the Parties, only after final approval by the City and a public referendum 1 1 13 "Equity C ontribution" means the equity in the Project provided by Lessee personally or through one or more Persons, which are wholly owned by the Lessee and over which Lessee retains voting control, shall equal not less than $17,900,000, inclusive of the Lessee's eontnbution to the Parking Facilities The foregoing sum shall include all demonstrable hard costs and soft costs, including, but not limited to, architectural, consulting, and legal fees, reasonably related to the Project expended or reumbuised by the foregoing parties prior to of after the date hereof The Lessee has deposited funds in escrow in the amount of $ 7,000,000 (the "Good Faith Escrowed Funds"), which funds shall be available to Lessee in order to ensure that Leasehold Imp'ovements requited by the terms of this Lease are paid and fot other hand costs and soft costs reasonably related to the Project The Good Faith Escrowed Funds shall be deemed to constitute a portion of the Equity Contnbution 2 1 1 14 "Fart Market Rent" means the rent that a similar property with the entitlements currently applicable to the Property, without consideration of the Leasehold Improvements constructed by the Lessee, would bring in a competitive and open market under all conditions requisite to an arnn's length transaction, the parties each acting prudently, knowledgeably, and assuming the tent is not affected by undue stimulus Implicit in this definition are the following assumptions (i) Both parties are typically motivated, (n) Both parties are well informed or well-advised and acting in what they consider their own best interest, (in) A reasonable time is allowed for exposure in the open market, (iv) Payment is made in terns of cash m U S dollars in terms of financial arrangements comparable thereto, and (v) The rent represents the normal consideration for property leased, under the current market conditions (as of any date as of which Fair Market Rent is determined) unaffected by special or creative financing or concessions granted by anyone associated with the Lease 1 1 15 "Formal Restaurant" means the restaurant operating at the location(s) indicated for the formal restaurant in the Proposal characterized by a price point generally higher than that of the Casual or a semi -casual Restaurart 1 1 16 "Force Majeure" means any period of delay which arises from or through acts of God, stnkes, lockouts, , riot, or civil commotion, act of war, fire or other casualty, legal requirements, delays caused by the other party, and causes beyond the reasonable control of a party 1 1 17 "Gross Revenues" shall have the meaning described in Section 4 13 of the Lease 1 118 "Impositions" means all governmental assessments, including assessments imposed by the City and the State of Florida, franchise fees, fire fees, excises, license and permit fees, submerged land fees, levies, char ges, and taxes, Including ad valorem real estate taxes on the Property and the Leasehold Estate„ general and special, ordinary and extraordinary properly levied against the Property and the Leasehold Improvements and/or the Lessee's Leasehold Estate which constitute a hen on the Property or the Leasehold Improvements, due as a result of the Lessee's use of the leasehold and/or due to the Lessee's operation ofa commercial business on the Property 1 1 19 "Leasehold Estate" means all of Lessee's right, title and interest as Lessee in, to and under this Lease, the Property and the Leasehold Improvements 1 1 20 "Leasehold Improvements" means a description of remodeling/renovation work to be done to the physical plant as described in Exhibit "A" entitled "Schedule of Leasehold Improvements" and all furnishings, fixtures, or equipment to be installed in accor dance with Section 6 1, and all other items and improvements installed or constructed thereafter, from time to time during the Lease Term that ale hereafter located upon the Property 1121 "Leasehold Mortgage" means a mortgage or other instrument which constitutes an encumbrance or lien upon the Leasehold Estate or any part thereof, or any related personal property, and Lessee's interest in the Leasehold Improvements (including Lessee's interest as sublessor in any present or future Subleases and any other interest of the Lessee in the Leasehold Impro�ernents), as secunty for any loan, including any construction loan, provided, however, that no Leasehold Mortgage shall encumber Lessor's tee simple interest in the Property 1 1 22 "Leasehold Mortgagee" means any holder ofa Leasehold Mortgage or any note or notes secured thereby 1 1 23 "Lease Term" means the period of time fixed in Section 3 1 and shall be deemed to include each Renewal Term fixed in Section 3 2 if Lessee exercises the applicable Renewal Option for Lessee's right to renew the Lease 1 1 24 "Lease Year" means twelve (12) consecutive months commencing on the Effective Date The first Lease Year shall begin on the Effective Date Each succeeding Lease Year shall commence upon the anniversary date of the Effective Date 1 1 25 "Lessee" has the meaning ascribed to it in the opening paragraph of this Lease as well as Lessee's successors and assigns 1 1 26 "Licensee" means Grove Key Marina, Inc , the current operator of the marina and casual restaurant located on the Property 1 1 27 "MPA" means the Department of Oft-Stieet Parking of the City of Miami, d/b/a Miami Parking Authority In relation to the parking obligations in this Lease, the term Lessor and MPA shall be used interchangeably 1 1 28 "Mmmnum Base Rent" means the annual Minimum Base Rent due and payable by the Lessee on a monthly basis for the use of the subject Property in the amount set foith in Section 4 I 1 1 1 29 "Maine Retail Store" means an establishment in which 50% or more of the floor area is stocked with supplies and equipment designed piimaiily of exclusively foi use in commercial fishing or recreational boating Examples of such supplies and equipment include navigational instruments, marine hardware and paints nautical publications, nautical clothing (e g , foul -weather gear), fishing supplies and marine engines 1 1 30 "Net Condemnation Award" means the actual amount of the award paid in connection with or arising from the taking of all or less than all of the Property, as the case may he, less all reasonable out-of-pocket expenses incurred by Lessor or Lessee in connection with obtaining Such award, including, without lunitation, all reasonable attorneys' fees and disbursements incurred in connection therewith 1 1 31 "Net Insurance Proceeds" means the actual amount of insurance proceeds paid following an insured casualty to the Leasehold Improvements less all costs and expenses including ieasonable attorneys' fees incurred by the Lessee with respect to the collection thereof I 1 32 "Net Sale Proceeds" shall mean the net proceeds to Lessee, of owner transteriing such interest (pursuant to Article XI herein), remaining after payment of (i) any other debt relating to the Property as prorated proportionately to the interest being transfened, and (u) all reasonable costs and expenses of the sale or Transfer, including commissions, tees, and closing costs 1133 "Parking Facilities Conditions" mean the satisfaction of following conditions precedent (a) the completion of construction of the Parking Iacilities, including, without limitation, the Guaranteed Parking Spaces, as e‘idenc,ed by a permanent Certificate of Oeoupancy or Certificate of Completion, as applicable, (b) the completion of construction of the Parking Facilities Retail Area, matenally rn accordance with the "Gray Shell Standards" described on Exhibit "B" attached hereto, and the issuance of a permanent Certificate of Occupancy therefor, and (c) Lessor, Lessee and the MPA shall have entered into an agreement pursuant to which (I) the MPA shall make available to Lessee, for use by Lessee and Sub- lessees, and their respective employees, patrons and customers, suppliers and contractors ("Qualified Parkers"), of approxunately 497 parking spaces (as may be adjusted based upon final gross leasable retail square footage of Parking Facilities Retail Area constructed by the MPA), on a nonexclusive basis (the "Guaranteed Parking Spaces"), open during the one hour before through the two hours after the established operating hours of the Pernntted Uses on three hundred sixty-five day per year basis, throughout the Lease Term, at hourly and dailypaiking rates which shall not exceed the parking rates in effectfrom time to tune for comparable parking facilities in Coconut Grove, provided that for the first Lease Year, there shall be no charge tot the first hour of parking tor each Qualified Parker and that tor the second Lease Year thereafter, the charge tot the first hour of parking tor each Qualified Parker shall be one half' of the charge foi each successive hour (2) the MPA shall make available to employees of Lessee or of any Sub -lessee (as identified to 1 essor (or the MPA) from time to time) a set parking rate at a discount to Qualified Parkers, (3) the MPA sets forth a validation program for Lessee's patrons consistent with the commitments set forth in the RFP, (4) MPA agrees to maintain and repair the Parking Facilities, (5) the MPA agrees following any casualty to immediately commence and diligently pursue any required restoration to the Parking Facilities, including the Parking Facrhties Retail Area, and (6) the City agrees, upon any casualty to the Parking Facilities, and until completion of the restoration of the Parking Facilities, to use its hest efforts to make available to Lessee a number of parking spaces equal to the Guaranteed Parking Spaces within close proximity to the Property on the same basis and terms applicable to the Guaranteed Parking Spaces 1 1 34 "Parking Facilities" means the structure the Miami Parking Authority (the "MPA") will construct to provide parking to service the Property, which will include the Guaranteed Parking Spaces and the Parking Facilities Retail Area MPA shall construct the Parking Facilities Retail Area as part of the Property 1 1 35 "Parking Facilities Retail Area" means the ground floor retail area to be constructed as part of the Parking Fact sties 1 1 36 "Percentage Rent' means those amounts described in Section 4 1 3, below 1 1 37 "Possession Date" means the first day following the latter to occur of the following (i) approval of (his Lease by ieterendum as contemplated in the RFP (u) execution of this Lease by all parties, and (ui) the Licensee vacates the Property and the Lessor delivers to Lessee possession of the entirety of 4 the Property 1 1 38 "Project" means the planning, designing, renovating or redeveloping, leasing, managing and operating of a mixed -use waterfront facility as contemplated by the Proposal 1 119 "Property" means the land buildings, nnprovements and authorized submerged lands located at 3385 Pan American Drive, 3349 Pan American Drive, 3351 & 3377 Chart House Drive, Miami, Florida, as more particularly described in Composite Exhibit "Cl" attached herewith and incorporated herein by reference Specifically, Property shall include all of the retail spaces located within the Parking Facilities, but not the parking spaces or land upon which the Parking Facilities will be constructed Upon issuance of a Certificate of Occupancy for the Parking Facilities, the final description of the Property, including the Packing Facilities Retail Area, shall be annexed to this Lease as Exhibit "C2," 1 1 40 "Proposal" means the doctunent received by the Lessor dated May 10, 2013 in response to the RFP, a copy of which is available at the City Clerk's Office and incorporated herein by this reference 1 1 41 "Rent" means Minimum Base Rent of Percentage Rent, as such amounts are described and fixed in Section 4 1 1 and 4 1 3, and adjusted pui sunlit to the terms of Section 4 1 2 herein 1 1 42 "RFP" means the document entitled "Request for Proposals ("RFP") No 12-13-001 Lease of City -owned Waterfront Property for Marina/Restaurant/Crarage Retail Uses" located at 3185 Pan American Drive and 51 Chart House Drive, Miami Florida, issued by the City of Miami on January 11, 2013, and the addenda thereto, a copy of which is available at the City Clerk's Office and incorporated herein by this reference 1 1 43 "Sublease" means any lease (excluding this Lease), sublease, license, concession, permit agreement, or other agreement by which Lessee or any person or other entity claiming under Lessee, demises, leases, subleases, licenses or sublicenses to or permits the use or occupancy by another person or entity of any part of the Property and Leasehold Improvements 1 144 "Subleasehold Estate Transfer" means any direct or indirect, voluntary or involuntary, sale, transfer, or assignment of any right, title or interest in and to any Sublease or any Subleasehold Estate 1 145 "Sub -lessee" means any person, [inn, corporation or other legal entity using or occupying or entitled to use or occupy any part of the Property or the Leasehold Improvements under a Sublease 1 1 46 "Submerged Lands" means any Submerged Lands adjacent to the Property which have been authorized tor mar ma or marine -related uses by the Lessor and/or the Lessee by the State of Florida Board of Trustees for Internal Improvement Trust Fund or by its administrative arm, the DEP 1 1 47 "Submerged Land Fees" means all tees, wailers, rentals and taxes as determined by DEP and any and all government agencies for the use of the Submerged Lands area 1 1 48 "Third Party Caterer" means any person or entity providing food, supplies, entertainment, or other related services at any event or gathering held at the Property and, if a person, such person does not have direct familial rely tionship with any of the equity holders of the Lessor or, if an entity, such entity is not owned, directly or indirectly, by any of the equity holders of the Lessor The phrase "direct fail ultal relationship means a spouse, child, sibling, parent, grandparent, grandchild, or first cousin 1 1 49 "Transferee" means the recer ing entity of a transfer in accordance with Article XI herein 1 1 50 "Transfer of Control" means any interest assignment which results in a change in r,oting and operational control of Lessee 1 1 51 "Transferor" means the owner who is transferring in accordance with Article XI herein ARTICLE II LEASE OF PROPERTY Section 2 1 Lease of Property The Lessor does hereby lease, let and demise to the Lessee, and the Lessee hereby leases from the Lessor the Property subject to the terms and conditions in this Lease, to have and to hold the Property, with all of the rights, privileges and appurtenances, theteunto belonging or pertaining, for the term herein specified, unless this Lease shall be sooner terminated in a manner hereinafter provided Section 2 2 Purpose of Use and Occupancy The Lessee will use and occupy the Property as a full -service, dry storage marina, with ancillary minor boat repair functions other ancillary marine -related services fuel sales, other related food services, one or more casual restaurants, one or more formal restaurants, retail uses and such other uses as contemplated in the Proposal (the "Permitted Uses") and for no other purpose or use of any kind 5 The marina shall provide for dry storage racks of compaiable storage equipment, accommodating the storage of a minimum of 400 boats Vessels stored at the manna shall be 28 feet or lesser in length The retail uses shall be located in the Parking Facilities Retail Area on the ground floor of the Parking Facilities In addition, retail uses shall be permitted in such areas designated for retail uses in the Proposal (the "Other Permitted Retail Areas") Lessee agrees that the Parking Facilities Retail Area and the Other Permitted Retail Areas shall not allow tenants operating adult novelty shops, gun shops and pawn shops The parking garage poi non of Parking Facility will be managed, operated and the parking spaces leased out by the MPA The Lessee agrees to use its best efforts to obtain permits necessary to construct the pier set forth in the Pioposal In addition to the foregoing, the Lessee agrees to use best efforts to construct two additional boat launches at the location described in the Proposal T he Lessor acknowledges that its consent may be required to construct such additional boat launches and, to the extent such approval is necessary, Lessor hereby agrees not to unreasonably condition, delay and withhold approval thereof For avoidance of doubt, the cost of such additional boat launches and any improvements necessary to the baywalk associated thereto shall count towards the Equity Contribution as set forth in the Proposal Lessee agrees that should the additional boat launches located at Grove Harbour (as described in the Proposal) not be available for use, that the Lessee shall construct the on -site boat launch as depicted in the Pioposal The (i) terraced open-air space Located over the Formal Restaurant (as described in the Pioposal) and (n) the piei set forth in the Proposal, each subject to obtaining applicable approvals and upon completion theieof, sha 1 be available for public use, subject to such reasonable access and use restrictions as established from tune -to -time by Lessee Section 2 3 Use of Submerged Lands The use of any submerged land owned by the State of Florida, adjacent to the Property, shall be subject to approval by the DEP and may contain restrictions set forth by DEP for the use of said submerged lands, as more particulaily described in Exhibit "D" attached hereto to be incorporated and made a part hereof Section 2 4 Suitability of Property Lessee acknowledges that neither the Lessor nor any of Lessor's officers, representatives, or employees has made any representation or warranty with respect to the Property or with respect to the suitability or fitness of the Property for the conduct of Lessee's manna and/or restaurant operations or for any other purpose, except as set forth in this Lease or in the REP The execution of this Lease by Lessee shall establish that the Lessee accepts the condition of the Property "AS IS" Section 2 5 Limited Representations by Lessor Lessor snakes the following representations, covenants and warranties, which shall survive the execution of this Lease and Lessee's taking of possession of the Pioperty (a) That Lessoi has taken all requisite actions to make this Lease bmding upon the Lessor, and the Lessor is indefeasibly seized ot'marketable, fee supple title to the Property, and is the sole owner of and has good right, title and authority to convey and transfer all property, rights and benefits which are the subject matter of this Lease (b) That, as of the Effective Date and throughout the Lease Term, no party except Lessee and pasties in possession by through or under Lessee shall he in or have any right to possession of the Property, except certain dry slip users pursuant to the lease agreements described on Exhibit "E," which will be disclosed to the Lessee and included in tins Lease as Exhibit "E," upon receipt from Licensee. (c) That there is on the Effective Date and shall be throughout the Lease Term, legal and physical ingress and egress to the Property from a paved public street for vehicular traffic and perpetual legal and physical ingress and egress for pedestnan traffic (d) The Property may be used and operated only for the Permitted Uses, and as of the Effective Date and throughout the Lease Teim, there shall be no Applicable Laws, private restrictions or other conditions which restrict or prevent the Pioperty from being used and operated for the Permitted Uses (e) All of the representations and warranties of Lessor contained in this Lease shall continue to be true as of the Effective Date and throughout the Lease Terri, and said representations and warranties shall be deemed to be restated and affirmed by Lessor as of the Effective Date without the necessity of Lessor's execution of any document with regard thereto, and the Lessor's liability (except with respect to the environmental condition of the Property which 6 is expressly addressed in Article XII of this Lease) therefore, shall survive the signing of this Lease Should any of the representations and warranties prove to be incorrect, it shall be Lessor's obligation to cure those warranties and representations, which are set faith herein forthwith at Lessor's expense Section 2 6 Lease Execution This Lease remains subject to final appioval by the City Commission and approval by public ieferendum as provided pursuant to Section 3(f)(m) of the Charter of the City of Miami Prior to consideration by the City Commission, Lessee shall deliver two (2) fully executed copies of this Lease to the City Manager, which copies shall be held in esciow by the City Manager until appioval ot the Lease by public referendum and, thereupon, the Lease shall become binding and effective as to both the Lessee and. Lessor If the Lease has not been approved by the City Commission and public referendum by December 31, 2013, then Lessee shall have the right at any time thereafter, to terminate this Lease by written notice thereof to Lessor Section 2 7 Prohibition on Casino Gambling Lessee agrees that, if casino gambling shall in the future become legal in the City of Miami, the Property hereby demised shall not be used for casino gambling, or games of chance or reward, unless (i) I essee obtains the prior consent of the Lessor, which consent may be withheld at the sole discietion of the City Commission, and (u) if the Lessor consents, the Parties shall in good faith negotiate an appropriate nmod'fication or amendment to this Lease, peimitting such use and providing for the payment by the Lessee to the Lessor, as Additional Rent, of an amount to be negotiated by the Parties ARTICLE III TERM Section 3 1 Term of Lease The initial term of this Lease is for a period of fifty (50) years ("Tenn"), commencing on the Effective Date Section 3 2 Option to Renew The Lessee has two options (each, a "Renewal Option") of extending this Lease for two (2) fifteen -year (15) periods ("Renewal Terms)") Lessee may not exercise either Renewal Option to extend it the Lessee then has uncured defaults on the terms and conditions of this Lease To exercise the applicable Renewal Option, the Lessee must not be in default under the terms and conditions of this Lease beyond any applicable cure period following applicable notice, and Lessee must give Lessor wntten notice by the latter ot (x) the date which is three hundied and sixty five (365) days before the expiration date of the current Lease Term or (y) the date thirty (30) days following written notice from Lessor advising Lessee that Lessee has failed to furnish notice of its exercise the applicable Renewal Option by the date three hundred sixty-five (365) day before the expiration of the current Lease Tenn, which notice shall state m bold capitalized large font letters that such notice constitutes final notice to Lessee of its right to exercise the applicable Renewal Option Each Renewal Term will be on the same terms and conditions as the Lease, except that the Rent will be adjusted as set forth in Article IV below Section 3 3 Parking Facilities Prior to the issuance of a Certificate of Occupancy for the Parking Facilities, Lessor shall make its hest effort, or shall cause the MPA to make its best efforts, to make available to Lessee such parking spaces as necessary to operate and open to the public the Permitted Uses prior to the completion of the Parking Facilities, on the same basis as the Guaranteed Parking Spaces, in the existing parking garages and parking Tots owned or controlled by Lessor identified on Exhibit "F" attached hereto (the "Existing Parking Facilities") Howe\er Lessor's or MPA's failure to make such parking spaces available shall not be deemed a default of this Lease if Lessor and MPA have undertaken hest efforts to make available to Lessee such parking spaces and, under such circumstances, the parties hereby agree to work cooperatively to find solutions that would permit Lessee to meet the parking requirements pursuant to Miami 21 ARTICLE IV RENT, FEES AND PAYMENTS Section 4 1 Amount of Rent The Lessee covenants that it shall pay to the Lessor as Rent for the Property the greater of the Initial Minimum Base Rent (as defined in Section 4 1 1) or the Percentage Rent from the Possession Date 7 of the Lease until six (6) tnonths following receipt of a Certificate of Occupancy for the Packing Facilities, including the Parking Facilities Retail Area ("Operation Date") From and after the Operation Date forward continuously for the duration of the Lease Teim, the Lessee agrees to pay an amount equal to the greater of the Minimum Base Rent (as defined in Section 4 1 1) or Percentage Rent to the Lessor The Parties shall memorialize the Opeiation Date through the execution of an appropriate document establishing the exact date 4 1 I Minimum Base Rent From and after the Possession Date, the Lessee shall pay to the Lessor Minimum Base Rent payable in advance on the first day of each month in equal monthly installments The Minimum Base Rent shall initially be $1 4 million per annum (the "Initial Minimum Base Rent") and shall increase to S 1 8 million per annum upon the Operation Date, provided however, that upon satisfaction of the Parking Facilities Conditions, the Minimum Base Rent shall increase to $1 9 million per annum for the twenty four (24) month period after satisfaction of the Parking Facility Conditions and $2 0 million per annum thereafter Notwithstanding the foregoing, if the Parking Facilities Conditions are satisfied, but only after June 1, 2016, then the amount of the Minimum Base Rent shall remain at Si 9 million and will not increase to $2 0 million as set forth above and, if the Parking Facilities Conditions are satisfied, but only after January 1, 2017, then the amount the Minimum Base Rent shall remain at S1 8 million for the duration of the Lease (each subject to adjustment as set forth in following sentence) Following each of Lease Yearsl0, 20, 30, 40, 50 and 60, the Minimum Base Rent shall be adjusted to equal the then applicable Fair Maiket Rent, as determined pursuant to Section 4 3 2 Notwithstanding the foregoing, the parties acknowledge that the calculation of Minimum Base Rent set forth above is based on the assumption that the Parking Facilities Retail Area will contain 40,000 square feet of gross leasable retail space and, as such, the Lessee will pay $400,000 of Minrnnun Base Rent or $10 per square foot per annum of gross leasable retail space As such, the amount of Minimum Base Rent set forth above shall be adjusted such that the Minimum Base Rent shall equal $10 p r square foot per annum of gross leasable retail space actually constructed by the MPA The Parties acknowledge that the Parking Facilities Retail Area may contain as much as 60,000 square feet of gloss leasable retail space 4 1 2 Consumer Price Index (CPI) Escalation Lessee agrees that, except for the Lease Years as of winch Minimum Base Rent shall be adjusted as provided in 4 1 1 above, the Minimum Base Rent shall be increased every five years (each, a "CPI Escalation Year") from the Lease Effective Date by an amount equal to the percentage increase during the prior year in the consumer price index ("Index"), which is the monthly index published by the Bureau of Labor Statistics of the United States Department of Labor as the Consumer Price Index for All Items, Miami -Ft Laudeidale, Florida, Base Yeat 1982-84=100 The CPI adjustment to Minimum Base Rent shall he hereinafter referred to as the "CPI Escalation " The amount of the CPI Escalation to Minimum Base Rent shall be capped at five percent (5%) each time the CPI Escalation is made (the "Maximum CPI Percentage") The first CPI Escalation shall be at Lease Year 5 The CPI adjustment set forth herein shall not result in a reduction of the Minimum Base Rent The CPI Escalation of the Minimum Base Rent shall be equal to the Minimum Base Rent in effect for the immediately preceding Lease Year multiplied by the "CPI Percentage" (as defined below) not to exceed the Maximum CPI Percentage The CPI Percentage shall equal the fraction (i) whose numerator equals the monthly Index published immediately prior to the new Lease Year (or the nearest reported pre\ ious month), and (u) whose denominator is the same monthly Index published immediately pnor to the immediately preceding Lease Year (or the nearest reported previous month) If the Index is discontinued with no successor Index, Lessor shall select a corninereially reasonable comparable index Lessor shall compute the CPI Escalations and send a notice, with calculations, to Lessee setting forth the adjusted Minimum Base Rent within sixty (60) days of the conunencement of each CPI Escalation Year or as soon as such Index is available In the event the Minimum Base Rent increases, Lessee shall pay to Lessor within thirty (30) days of receiving such notice, the Additional Rent owed for the months that have elapsed in the current Lease Year 4 1 3 Percentage Rent Coininencing on the Possession Date and continuing throughout the Lease Term, the Percentage Rent shall be due and payable to the Lessor The Percentage Rent shall be an amount equal to the sum of (x) the cumulative total of the following percentages of Gross Revenue described in items (i) through (v), below, and (y) the other amounts described in item (vi) due hereunder i) 5% percent of the Gross Revenues from the Formal Dining Restaurants, 8 II) 10 1% percent of the Gross Revenues from the Casual Restaurants, in) 15% percent of the Gross Revenues from marina operations (non -heel), iv) 15% percent of manna gross fuel profits (gross fuel profits defined as gross fuel sale price per gallon minus cost of delivered heel per gallon), v) 5% percent of the Gross Revenue limn any Marine Retail Stole (excluding any Marine Retail Store within the Parking Facilities Retail Area, which shall pay rent pursuant to (vi) below) and any ancillary sales trom any other source within the Property, excluding those sources identified in subparts (i), (ii), (ni) (iv) or (vi), and vi) $10 pei square foot per annum tor all occupied or vacant retail spaces within the Parking Facilities Retail Area and within the Other Permitted Retail Areas and (other than those uses described m items (i) through (v), above within such area, such that the Percentage Rent payable for such retail uses shall be without duplication between categories) (the "4 1 3 Rent") Commencing with each of the Lease Years following Lease Years 10, 20, 30, 40, 50 and 60 (each, an "Adjustment Lease Year"), the 4 1 3 Rent shall be adjusted as follows (1) as of the commencement of the first Adjustment Lease Year, the 4 1 3 Rent shall he increased to $11 50 per square toot pei annum, and (2) as of the commencement ot each subsequent Adjustment Lease Year, the 4 1 3 Rent shall be adjusted to equal the product of (x) the 4 1 3 Rent in effect immediately preceding such Adjustment Lease Year times (y) 50% ot the percentage increase in Minimum Base Rent, as determined pursuant to Section 4 3 2, that will take effect as of the commencement of each applicable Adjustment Lease Year The percentages used to determine the Percentage Rent described in items (i) through (v), above shall not be subject to adjustment The parties recognize that the characterization of a portion of the Property, e g as Marine Retail Store, or Non-Manne Retail, may change from time -to -time For example, a portion of the Property charaetenzed for purposes of Percentage Rent as non -Marine Retail may subsequently be occupied for a Marine Retail use or a portion of the Property used initially for a marine operations use may, upon completion of the Leasehold Improvements, be used for Manne Retail For ai oidance of doubt, the characterization of the use for purposes of determining Percentage Rent shall be adjusted as of the date the Lessee or its Sub -Lessee obtains a new certificate of use (or its equivalent) for such new use 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's receipt of the Percentage Rent payment If the Percentage Rent is not paid after thirty (30) days, Lessee shall he charged a late payment fee in accordance with Section 16 4 until the amount of underpayment is paid in full 4 1 4 Gross Revenues Gross Revenues shall include the entire amount ot all revenues and percentages of revenues actually collected and received by the Lessee and its Sub -lessees on its Assignees (excluding such revenues derived from the Parking Facilities Retail Area or any non -Marine Retail within the Other Pet nutted Retail Areas) and derived from the following sales sources, including without limitation (i) all revenue from the commercial business and services Lessee and its Sub- lessees and/or Assignees conduct on or from the Property (except as otherwise provided under this Lease), (n) all revenue from sale of food, beverage, wine, beet, merchandise or services from the Property excluding revenue derived fiom the rental for any event or revenue earned by Third Party Caterer otherwise paying rental to Lessee in connection with any event, which rental will be included in Gross Revenues pursuant to subpart (vni), below, (in) all revenue derived from advertising and sponsorships conducted on the Property, including but not limited to, movie, television commercials, etc , (iv) all amounts received from any catering food operations in any way conducted at or from the Property, excluding revenue earned by any Third Party Caterer otherwise paying rental to Lessee in connection with such special event, which rental will be included in Gross Revenues pursuant to subpart (yin), below, 9 (�) all amounts received by Lessee from valet concession sales of parkmg valet services and calculated pursuant to Section 11 1(c) of this Lease, (v1) dehvety charges, (vii) sales made or performed by means of mechanical or other vending sales and services devices of machines on the Property, including without Innitation, pay telephones, vending machines, and entertainment devices both for cash and on credit, rendered in or upon the Property, excluding revenue derived from the rental of any portion of the Property for any event or revenue earned by Third Party Caterer otherwise paying rental to Lessee in connection with any event, which rental will be included in Gross Revenues pursuant to subpart (viii), below, (vzn) all revenue received by Lessee in connection with events at any facility within the Property, or any portion thereof' for any period of time, including without limitation, banquets, parties, receptions held on or initiated from the Property, which Percentage Rent will be calculated pursuant to Section 4 1 30.), (ix) Internet or telephone food/beverage orders received or tilled at the Property, or procured from the Property by house -to -house or other canvassing, all deposits not refunded to purchasers, and orders taken, although said orders may be filled elsewhere, including proceeds of all v ideo games, (x) all grants, subsidies, tebates, credits or similar benefits received fiom any federal, state, regional or local body, agency, authority, department or organization which revenues are actually received by Lessee and pursuant to the terms thereof constitute unrestricted funds that may he used for general operating expenses, provided, however, Sales tax and federal income tax credits for which Lessee may qualify shall be excluded from the foregoing, (xi) all donations and contributions received, the revenues of which are actually received by Lessee and pursuant to the terms thereof constitute unrestricted funds that may he used for general operating expenses, and (xir) all other receipts whatsoever denved from other commercial operations conducted in or from the Pi operty by the Lessee and its Sub -lessees (if any) Gross Revenues shall not include the following (i) any sums collected and paid out by Lessee for any sales, use or excise tax unposed by any federal, state or governmental authority directly on sales and collected fiom customers and accounted tor by Lessee and/or Sub -lessees, provided that the amount is added to the selling price therein and paid by the Lessee to such governmental authority, (u) the exchange of merchandise between the stores of Lessee, a party controlled by Lessee, or Sub -lessees, if any, where such exchange of goods or merchandise is made solely for the convenient operation of the business of Lessee and not for the purpose of consummating a sale which has theretofore been made in or from the Property and/or for the purpose of depriving Lessor of the benefit of a sale which otherwise would be made in or from the Property, (in) the amount of returns to shippers or manufacturers, (iv) proceeds from the sale of trade fixtures, operating equipment or similar assets atter use thereof in the conduct of Lessee's and Sub-Iessees' business on the Property, (v) all sums and credits received in settlement of claims for loss or damage to merchandise, (vi) hinds collected with regard to the Property which are not actually related to the day-to-day business of the Property such as, but not limited to the financing of the Lessee's interest in the Pioperty, (vii) collection of insurance proceeds, (viii) collection of eminent domain proceeds, (ix) monies collected tor events, to the extent any portion of such monies collected are paid or delivered to the sponsor, so long as sponsor is not affiliated with Lessee, 10 (x) all gratuities paid to employees, (xi) amounts received by Lessee as reimbursements of expenses and cost sharing (for example, reimbursement of taxes, maintenance, insurance or utility bills), (xti) any giants, subsidies, rebates, credits or similar benefits received by Lessee or Sub -lessee fiom any federal, state, regional or local body, agency, authority, department or organization, (xni) interest earned on Lessee's deposit accounts, earnings or profits on Lessee's investments, (xiv) interest Income from loans or credit facilities granted by Lessee and similar passive oi investment Income of Lessee related to Lessee's liquid assets, investments or loans/credit facilities granted by Lessee, (xv) rents or percentage rents and commissions paid to Lessee by any Sub -lessees where the Lessor is collecting rent based on a percentage of Sub -lessee's Gross Revenue', (xvi) Amounts received by a valet parking concessionaire when Lessee is renntttng the respective percentage due to Lessor as piovided pursuant to Section I 1 1(c) (xvii) Any restricted donations or contributions whose revenues are earmarked foi capital expenditures, as approved by the Lessor, to the Property (xv in) Interest and finance charges charged by Lessee If a sale is by credit card, no deduction shall be allowed for any commission associated with such sale A "sale" shall be deeined to have been consummated for the purpose of this Lease, and the entire amount of sales price collected by Lessee and Sub -lessees shall be included in Gross Revenues, at such time that (i) the transaction is initially reflected in the books or records of Lessee or Sub-lessee(s), or (n) Lessee or Sub-lessee(s) receives all oi any portion of the sales price, of (mr) the applicable goods or services are delivered to the customer and payment is made to Lessee or Sub-lessee(s), whichever first occurs, irrespective of whether payment is made m installments, the sale is for cash or for credit, or otherwise, or all or any portion of the sale price has actually been paid at the time of inclusion in Gross Revenues or at any othc r time No deduction shall be allowed for direct or indirect discounts, rebates, or other reductions on sales, unless generally offered to employees or the public on a uniform basis, within the applicable restaurant or retail establishment Gross Revenues, whether for cash, credit, credit cards or otherwise, shall be recognized at such time as piovided ni the foregoing paragraph 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 ineursed expenditures in compliance with the restrictions of the grantor Gross Revenues shall be reduced by the amount of any refund made upon any sale in or from the Property, piovided said amounts had been preciously included in "Gross Revenues," not to exceed the sum so previously included, where the merchandise sold is thereafter returned by the purchaser and accepted by the Lessee or Sub -Lessees, and if such refund is in the form of a credit to customer, such credit shall he minded in Gross Revenues when used Lessee shall be entitled to deduct from any amount ongmally included in Gross Revenues any portion thereof which is determined by Lessee to he uncollectible after ninety (90) days following the date such amount was originally due and payable to Lessee 4 1 5 Sales Tax The Lessee shall be liable for the prevailing State of Florida Use Tax Imposed on the amount of rent paid to Lessor under this Lease, in the absence of an exemption or other reduction by the State of Florida This Sales and Use Tax shall he payable to the Lessor when rent is due, and in turn, Lessor will remit the sane, less any authorized handling deductions, if any, to the State Said tax is applicable to the Minimum Base Rent payments, unless otherwise determined by the State of Florida 4 16 Manner of Payment Every 15th day of the calendar month, Lessee shall pay the Lessor the monthly Initial Minimum Base Rent or Minimum Base Rent and the difference between such amount and Percentage Rent, as applicable, and shall deliver such payment along with the conesponding Gross Revenue Report foi the preceding calendar month to the City of Main', Department of Finance at the address noted below City of Miami Department of Finance 11 Attention Treasury Management/Receipts 444 SW 2nd Avenue, 6th Floor Miami, Florida 33130 Lessee shall use a Gross Revenue Report, a sample of which is attached herewith and incorporated herein as Exhibit "G" to iteinize any and all reportable Gross Revenues as described in Section 4 14 herem For avoidance of doubt, the Percentage Rent due by Lessee to Lessor will be calculated on a Lease Year basis and, as such, the parties will reconcile the final amount of Rent due by Lessee for any applicable Lease Year by no later than ninety (90) days after the end of each Lease Year, and the Lessee shall pay to Lessor any underpayment in Rent (after determining that the amount of Percentage Rent due in such Lease Year exceeds the amount pad in Rent by the Lessee in such Lease Year) within thirty (30) days thereof or, if applicable, the Lessor shall pay to Lessee (either, at Lessor's option, by rent credit or in cash) any overpayment in Rent (atter determining that the amount of Rent paid by Lessee is such Lease Year exceeds the greater of the Minimum Base Rent or the Percentage Rent due in such Lease Year) Section 4 2 Security Deposit Simultaneously with the execution of this Lease on the Effective Date, Lessee shall initially deposit 's ith the Lessor, the sum of nine hundred thousand dollars (S900,000), which shall be equal to 50% of the annual Minnnum Base Rent ("Secunty Deposit") in the form of cash, which may be applied from the Good Faith Escrowed Funds, or in the torm of a letter of credit The Security Deposit shall be adjusted in the manner described in Section 4 3 1 herein The Security Deposit shall be maintained by Lessor in an interest -bearing money market account all interest accrued horn time to time thereon shall be paid to Lessee on an annual basis throughout the Lease Term, by no later then fifteen days following the end of each calendar year For so long as the Security Deposit has not been repaid by Lessor, it shall constitute an account payable by Lessor to Lessee within thirty (30) days following termination of this Lease to the extent, if any, that the Security Deposit has not been applied by Lessor as hereunder provided If Lessee shall default with respect to any covenant duty, or obligation of Lessee under this Lease, then the Security Deposit or any part thereof inay be applied by Lessor after the satisfaction of any relevant Cure Period (but Lessor shall not be obligated to do so) to the damages sustained by Lessor by reason of any such default or to indebtedness owing by reason of any failure of Lessee to make any required monetary payment under this Lease No such application shall he construed as an agreement to limn the amount of Lessor's claim or as a waiver of any damage or release of any indebtedness, and any claims of I essoi under this Lease not recoveied in full from the Security Deposit shall remain in full force and effect At any time or times when Lessor has made any such application of all or any part of the Secunty Deposit, I essoi shall have the right (hut not the obligation) at any time thereafter to request in wilting that Lessee pay to Lessor a sum or sums equal to the amounts so applied by Lessor so that Lessor will always be in possession of a sum e lual to 50% of the annual Minimum Base Rent Lessee shall snake each such requested remittance within fifteen (15) days following such request from Lessor and each such remittance received by Lessor shall thereupon constitute a part of the Security Deposit subject to the terms and provisions thereof Failure to make any such requested remittance within such ten (10) day period may be treated by Lessor as a failure by Lessee to make timely payment of rent and as a Lessee Default In the event of any conveyance or other transfer of the Property by the Lessor, Lessor's remittance of the Security Deposit or any remaining portion thereof to the purchaser of the Property shall release and relieve Lessor of any further obligation or liability to Lessee with respect to the Secunty Deposit Section 4 3 Adjustments to Rent The Security Deposit shall he adjusted from time -to -time, at such time as the Minimum Base Rent shall be adjusted , as otherwise provided herein, such that the Security Deposit shall at all tirrres he equal to fifty percent (50%) of then applicable yearly Minimum Base Rent hi the instance where the Lessor deducts any amount of the Security Deposit, the Security Deposit shall he replenished by the Lessee to the extent necessary to restore the Security Deposit to the adjusted amount of the Security Deposit within fifteen (15) days of the drawdown of the Security Deposit 4 3 2 Appraisal Rent Adiustment 4 3 2 1 Determination of Fair Market Rent The Minimum Base Rent shall be evaluated in accordance with the procedures set forth in this Section 4 3 2 (each, a "Scheduled Appraisal") to determine the current Fan Market Rent for Minimum Base Rent and the required adjustments to these values 12 4 1 2 2 Appraisers No later then three hundred and sixty-five (365) days prior to the end of each of Lease Years 10, 20 30 40 50 and 60, Lessor shall deliver to Lessee a determination of the Fan Market Rent, in accordance with the eineria set forth herein applicable to the determination of Fan Market Rent The determination of Fair Market Rent provided by Lessor shall be conducted by an independent commercial real estate appraiser who is a member of the American Institute ot Real Estate Appraisers and who has not less than ten (10) years experience in appraising properties comparable to the Property (a "Qualified Appraiser") Lessor shall pay for the appraisal Lessor shall select its Qualified Appraiser from the City's general appraisers' services list In no event shall an appraisal result in a reduction rn the minnnum rent due to the City The Qualified Appraiser shall be hired the year prior to the Lease Year (i e Lease Years 9 19, 29, 39, 49 and 59) that the newly appraised Minimum Base Rent shall commence to take effect (each, an "Adjustment Lease Year") In the event that Tenant shall dispute the determination of Fair Market Rent made by I essor's Qualified Appraiser, then, Lessee shall, within thirty (30) days following its receipt of the determination made by I essor's Qualified Appraiser, select its own real estate appraiser, who shall also be a Qualified Appraiser (though Lessee's Qualified Appraiser shall not be required to be on the City's general appraisers' service list) Lessee shall pay the costs of Lessee's Qualified Appraiser The Lessor's Qualified Appraiser and the Lessee's Qualified Appraiser shall then have a period of thirty (30) days following the selection of Lessee's Qualified Appraiser within which to attempt, m good faith, to reach agreement on the Fair Market Rent for the Pioperty If Lessor's Qualified Appraiser and Lessee's Qualified Appraiser are unable to agree upon the Fair Market Rent within such thirty (30) day period, then the Fan, Market Rent shall be determined in accordance with the methodology set forth below Within fifteen (15) days following the expiration of such thirty (30) day period, Lesson's Qualified Appraiser and Lessee's Qualified Appraiser shall endeavor to mutually agree upon an independent commercial real estate appraiser who shall be a Qualified Appraiser If the Lessee elects, the pool of Qualified Appraisers shall exclude any appraiser on the City's general appraisers service list If the Lessor's Qualified Appraiser and Lessee's Qualified Appraiser are unable to agree on such third Qualified Appraiser, I essoi and Lessee shall apply to the American Arbitration Association for designation of an appropriate third Qualified Appraiser the Qualified Appraiser so selected or designated by the Ainencan Arbitration Association is hereinafter referred to as the "Thad Appraiser Within ten (10) days following the selection of the Third Appraiser, Lessoi's Qualified Appraiser and Lessee's Qualified Appraiser shall each submit to the Third Appraiser their respective final determinations of the Fair Market Rent Within thirty (30) days thereafter, the Third Appraiser shall select, as the Fair Market Rent, either the determination submitted by Lessor's Qualified Appraiser or the determination submitted by Lessee's Qualified Appiaiser The Third Appraiser shall not select any amount as the Fair Market Rent, other than the amount submitted by either the Lessoi's Qualified Appraiser or the amount submitted by the Lessee's Qualified Appiaiser The Thud Appiaiser shall notify both Lessor and Lessee, m wilting, which of the two determinations the Thi d Appraiser has selected as the Fair Market Rent The selection of the Third Appraiser shall be final and binding on both Lessor and Lessee and the Fair Market Rent as selected by the Third Appraiser, shall be the Minimum Base Rent, which shall take effect commencing as of the beginning of the applicable Adjustment Lease Year 4 3 2 3 Method Bach Qualified Appraiser shall determine the Farr Market Rent based on the parameters set forth in the definition thereof set forth rn Section 1 1 13 Each Qualified Appraiser, in its discretion, may dispense with formal heanngs, it being agreed that his task will be solely that of appraisal 4 3 2 4 Effect of Appraisal The Fair Market Rent determined in accordance with the procedures set forth in this Section 4 3 2 shall be binding and conclusive on the Lessor and the Lessee, except that m no event shall the Fair Market Rent be adjusted below the then applicable Minimum Base Rent for such Lease Year 4 3 2 5 Appraisal Fee The Lessee shall be responsible for one hundred percent (100%) ot the costs associated with the hiring ot the Lessee's Qualified Appraiser and Lessor shall be responsible for one hundred percent (100%) of the costs associated with the hiring of the Lessor's Qualified Appiaiser In the event the Lessee disputes the first appraisal, the costs associated with the hiring of the Third Appraiser shall be paid by the party whose Qualified Appraiser's determination of Fan Market Rent is not selected by the Third Appiaiser, 13 piovided, however, if 1 essee elects to exclude from the pool of Qualified Appraisers any appraiser on the City's general appraisers service list, then Lessee shall pay the full cost of the Third Appraiser 4 3 2 6 Delayed Appraisal It pi tor to the commencement of the Adjustment Lease Year, the adjusted Minimum Base Rent has not been deteimuned by independent appraisal in accordance with the procedures set forth in this Section 4 3 2, the Lessee shall continue to pay all then applicable Rent(s), as may have been previously adjusted pursuant to the terms of this Lease Following the determination of the Rent by independent appraisal, in accordance with the procedures set forth in this Section 4 3 2, the Rent will be adjusted as provided retroactively to the comrnencement, as applicable, of the next following Adjustment Lease Year, and, if necessary, the Lessee shall pay to the Lessor with the next installment of Rent due, the amount, if any, by which the Rent, as adjusted, exceeds the Rent that has been paid by the Lessee for the retroactive period Section 4 4 Submerged Land Fees In addition to the rent described in Sections 4 1 1 to 4 1 2 herein, commencing upon the latei of the Effective Date of this Lease or the effective date of an agreement with the DEP for use of the Submerged Lands, Lessee shall be obligated to pay all Submerged Land Fees as deternuned by the DEP for the use of the Submerged Lands and pay foi all expenses incurred in obtaining the State's appioval and waiver The annual Submerged Lands Fee shall be paid to the City at the same location as the Minimum Base Rent and the City shall remit payment to DEP Lessee shall remit the annual Submerged Lands Fees to the City within five (5) thirty (10) Business Days of Lessee being billed by the City foi the same Lessee shall turthei be obligated to submit to the Lessoi tor remittance to DEP any and all documents required by DEP which may include, but is not limited to, disclosure of any income from wet slips for the Submerged Lands Except as otherwise provided, the annual Submerged Lands Fee shall be as provided in Florida Department of Environmental Protection, Administiative Rule 18-21 011(1)(b), as may be amended, and subject to yearly consumer puce index (CPI) increases by DEP Section 4 5 Lessee's Records To the extent Gross Revenues generated by Lessee or any Sub -lessee (an "Applicable Sub- lessee") are apphcable to the determination of any Percentage Rent hereunder (the "Applicable Gross Revenues"), Lessee shall prepai e and keep or shall use °onninei cially reasonable efforts to cause Applicable Sub -lessees to prepare and keep, full, complete and proper books and source documents in accordance with generally accepted accounting principles, of the Applicable Gross Revenues, whether for cash, credit or otherwise, of each separate depaitment at any tune operated in the Property The books and source documents to be kept by Lessee (and Applicable Sub -lessees) shall include, without limitation, true copies of all federal, state and local tax retuins and reports, recoids of inventories and receipts of merchandise, daily receipts from all sales and other pertinent original sales records and records of any other transactions conducted in or from the Property by Lessee Pertinent original sales records may include any of the following, (i) sales reports of back office systems fed from point of sale terminals, (it) cash register tapes, including tapes from temporary registers, if any, (in) serially pre -numbered sales slips, (iv) the ongrnal records of all mail, internet and telephone orders at and to the Property, if any, (v) settlement report sheets of transactions with any person conducting business in the Premise, if any, (vi) original records indicating that merchandise returned by customers was purchased at the Property by such customers, (vit) memorandum receipts or other records of merchandise taken out on approval, (viu) detailed original records of any exclusions or deductions from Gross Revenues, (ix) sales tax records, and (x) such other sales records, if any, which would normally he examined by an independent accountant pursuant to accepted auditing standards in performing an audit of L essee's sales Lessor and Lessee acknowledge and agree that, during the Lease Term, and in connection with certain Sub -leases, not all of the foregoing sales records may he maintained, however, Lessee hereby agrees to maintain (or to use commercially reasonable efforts to cause any Applicable Sub -lessee to maintain) all such sales records as shall, in accordance with commercially reasonable standards, be requned in connection with the deternnation of Applicable Gross Revenues, where applicable to the determination of any Percentage Rent hereunder Subject to the preceding paragraph, Lessee shall record (or use commercially reasonable efforts to cause any Applicable Sub -lessee to record), at the time of each sale or other transaction, in the presence of the customer, all receipts horn, such sale or other transaction, whether for cash, credit or otherwise, in a cash register or cash registers having a cumulative total which shall be sealed in a manner approved by 14 Lessor and which shall possess such other features as shall be reasonably requited by Lessoi Lessee shall be requited to install (and to use commercially reasonable efforts to cause Applicable Sub -lessees to install) point of sale terminals, pollable, point of sales cash register systems or such ()Chet point of sale equipment of a snake and model mutually agreed to by the Parties Section 4 6 Reports by Lessee Within ninety (90) days after the end of each Lease Year, Lessee shall also furnish to Lessor a certified financial report (i e a gross revenue audit) by an independent certified public accountant (the "Annual Report"), showing in all reasonable detail of the amount of such Applicable Gross Revenues made by Lessee and Applicable Sublessees from the Propeity during the preceding Lease Yea. Lessee shall in all events furnish to Lessor within fifteen (15) days aftei the end of each month of the Lease Tenn a written statement of Applicable Gross Revenues covering the preceding month, the statement to be in such form and style and contain suoh details and breakdown as Lessor may reasonably require Lessor acknowledges and agrees that, with respect to Applicable Gross Revenues generated by any Applicable Sub -lessee, Lessee shall rely on the reporting made by each such Applicable Sub -lessee with respect to its Applicable Gross Revenues and shall have no liability whatsoever for reporting errors made by any such Applicable Sub -lessee, provided, however, Lessee shall use commercially reasonable efforts to include in each sublease with any Applicable Sub -lessee repotting requirements with respect to Applicable Gross Revenues consistent with the reporting requirements applicable to the operations of Lessee hereunder Section 4 7 Right to Examine Books Notwithstanding the acceptance by Lessor of payments of Minimum Base Rent and Percentage Rent, Lessor shall have the right to all Rents and other charges actually due hereunder, and the right to examine, make extracts from and copy, at the Property at Lessee's maim accounting office, Lessee's books, sou' ce documents, accounts, records and sales and income tax reports filed with applicable government agencies by Lessee in order to verify the amount of Applicable Gross Revenues in and from the Property For a period of fi\ e (5) years after the expiration of each Lease Year, Lessee shall make (or use commercially reasonable efforts to cause any Applicable Sub -lessee to make) all such documents and records available at the Property or Lessee's main accounting office upon ten (10) days' prior written notice from Lessor The Le ,see will establish one or more bank accounts to deposit all Gross Revenues recognized from the operations on the Property, which bank account deposits will not he comingled with the revenue from any other operations of the Lessee or any other affiliated companies Section 4 8 Audit (a) At its option, Lessor may at any time, upon ten (10) days ' prior written notice to Lessee, arrange for an auditor selected by Lessor to conduct a complete audit (including a physical inventory) of the applicable records and operations of Lessee and each Applicable Sub -lessee included in Applicable Gross Revenues from the Property during the period covered by any statement issued by Lessee Lessee shall make available (ot use commercially reasonable efforts to cause any Applicable Sub -lessee to make asailable) to the Lessor's auditor at the Property or Lessee's main accounting office on the day set forth in Lessor's notice requiring such audit, all of the applicable books, source documents, accounts and records termed to in Section 4 6 hereof and any other materials which such auditor reasonably deems necessary or desirable for the purpose of making such audit Lessee shall promptly pay to Lessor the amount of any deficiency in Percentage Rent payments disclosed by any such audit If such audit shall disclose that Lessee's statement of Applicable Gross Revenues is understated to the extent of five percent (5%) or more, then, unless Lessee shall dispute the results of such audit, Lessor may bill to Lessee the cost of such audit, which shall be paid by Lessee within thirty (30) days aftet Lessee's receipt of Lessor's invoice If such audit shall disclose that Lessee's statement of Applicable Gross Revenues is understated to the extent of ten percent (10%) or more, then, unless Lessee shall dispute the results of such audit, Lessor, in addition to the foregoing remedy and other remedies available to Lessor, shall have the option, upon Lessee's failure to pay such additional sums within thirty (30) days after written notice to the Lessee, to declare Lessee to be in default hereunder, m which event, Lessoi shall be entitled to all ot the remedies set forth in Article XVI below In addition to the foregoing, and in addition to all other remedies available to Lessor, in the event Lessee's auditor and Lessor's auditor shall schedule a date for an audit of Lessee's records in accordance with this Section 4 8 and Lessee shall tail to be available or shall otherwise fail to comply with the requiiements for such audit, Lessee shall pay all costs and expenses associated with the canceled audit (b) In addition to all other remedies mailable to Lessor, in the event that any such audit shall disclose that Lessee's records and other documents as referred to in Section 4 4, 4 5 and 4 6 hereof and such othei materials provided by Lessee to Lessor's auditor are inadequate, in the opinion of an independent 15 auditot serving as Lessor's auditor, to disclose accurately Lessee's Gross Revenues, then Lessee shall have thirty (30) days to cure any deficiencies raised by Lessor's auditor and shall then notify Lessor so that Lessor's auditor can continue its audit Lessor's exercise of the foregoing remedy shall in no way limit or otherwise affect Lessor's ability to exercise other remedies available to it, nor shall Lessee's obligations pursuant to the terms, covenants and conditions of this Lease (including, without limitation, Lessee's obligation with respect to reporting Gross Revenues and payment of Percentage Rent) be in any manner reduced or diminished by the exercise of such remedy Notwithstanding anything herein to the contrary, to the extent that Lessee shall fail to provide to Lessor any required reporting of records with respect to Applicable Gross Revenues as a consequence of any Applicable Sub -lessee's failure to timely furnish to Lessee any required reporting or records with respect to the Applicable Gross Revenues generated by such Applicable Sub -lessee, then, provided that Lessee shall take all commercially reasonable measures pursuant to the terms of the applicable sublease to enforce the requirements of such sublease with respect to producing Such reports or records, Lessee shall have no habi.itty to Lessor to eotnnectton therewith, but shall promptly commence to take all commercially reasonable efforts to terminate such sublease, and, in connection there with, to recover all Applicable Percentage Rent due rn connection with the Applicable Gross Revenues genera ed by such Applicable Sub -lessee and to account to Lessor for same Section 4 9 Lien for Rent The whole amount of the Rent, Additional Rent, and each and every installment, and the amount of all taxes, assessments, watei rates, insurance pennon's and other charges and Impositions paid by the Lessee under the provisions of this Lease, and all costs, attorneys fees and othet expenses which may be mooned by the Lessor rn enforcing the provisions of this Lease, or on account of any delinquency of the Lessee in carrying out any of the provisions of this Lease, shall be and they are deemed to constitute a valid hen upon the Leasehold Improvements, and upon the Lessee's Leasehold Estate Lessor hereby agrees that m the event Lessee shall obtain financing in connection with the Project which may entail granting to any Leasehold Mortgagee or other lender providing such financing a Leasehold Mortgage or other encumbrance upon all or any portion of the Leasehold Improvements, the Lessee's Leasehold Estate, or any personal property belonging to Lessee, Lessor shall subordinate its lien over and upon the Leasehold Improvements, Lessee's Leasehold Estate and any such personal property belonging to Lessee, pursuant to such commercially reasonable form of a subordination agreement as such Leasehold Mortgagee or other lender shall request Section 4 10 Parking Trust Fund Contnbution The Lessee shall be required to contribute $10,000 per parking space required to meet the Lessee's parking iegntrement pursuant to the RFP Based on the development contemplated by the Proposal, the Lessee's total contribution to the Parking Garage Facilities shall be S4,970,000 for a total of 497 parking spaces, which amount may be adjusted as set forth below ("Parking Trust Fund Contribution") Lessee hereby elects the option of financing a portion of the Packing Trust Fund Contribution, therefore, as of the Effective Date of the Lease, the Lessee shall transfer $1,242,500 of the Good Faith Escrowed Funds to the Lessor with the remainder of the amount of the Parking Trust Fund Contribution (in the amount of $3,727,500 plus any additional bond issuance cost) to be financed by the MPA fully amortized over a twenty (20) year term at six percent (6%) interest and the corresponding payments to such financed amount constrtutmg Additional Rent The I essee shall pay each installment of debt service for the balance of the Parking Trust Fund Contnbution by cashier's cheek or money order and delivered to the Finance Director, 444 SW 2"`i Avenue, 7'i' Floor, Miami, Flonda 31130 If the MPA has not obtained building permits for, and commenced construction of, the Parking Facilities by January 1, 2015, then the Lessor shall return the Parking Trust Fund Contribution to the Lessee The Parties acknowledge that the final calculation of the Parking Trust Fund Contribution may fluctuate based on the actual gross leasable retail square footage constructed by the MPA as Parking Facilities Retail Area, therefore, the actual amount of the contribution will be adjusted (based on the formula set forth in the RFP) upon completion of the Parking Facilities Retail Aiea with the MPA financing the maximum percentage of such contribution as permitted m the RFP Section 5 I ARTICLE V PAYMENT OF TAXES, ASSESSMENTS AND OTHER IMPOSITIONS Payment of Taxes and Impositions I6 Lessee shall pay before any fine, penalty, lntetest or costs are added for non-payment, any and all Impositions levied against the Pioperty or against personal property of any kind, owned by or placed in, upon or about the Pioperty by Lessee Section 5 2 Installment Payments of Ad Valorem Taxes and Impositions Lessee agrees that to the extent the Pioperty of any interest thereon is subject to ad valorem taxation, Lessee, at its option, may enroll in the Miami -Dade County Ad Valorem Tax Payment Plan It by law, any taxes, assessments or othet Impositions ate payable or may, in the case of taxes, at the option of the taxpayet, be patd in installments (whethet or not interest shall accrue on the unpaid balance of the Imposition), the Lessee may pay the same (and any accreted interest on the unpaid balance of the Imposition), in installments before any fine, penalty, interest or cost is added for the nonpayment of any installment and interest Any Imposition relating to a fiscal period of the taxing authority, a part of which period is included before the Effective Date and part of which is included after the Effective Date shall be adjusted as between the Lessor and the Lessee as of the Effective Date of the Lease Term, so that the Lessee shall pay that portion of the Imposition attnbutable to that part of the fiscal period included in the Lease Term, and the Lessor shall pay the remainder, if applicable Any Imposition relating to a fiscal period of the taxing authority, a part of which period is included within the Lease Term and a part of which is included in a period of time after Lease Tenn shall be adjusted as between the Lessor and the Lessee as of the termination of the Lease Tenn, so that the Lessee shall pay that proportion of the Imposition attributable to that part of the fiscal period included in the term of this Lease, and the Lessor shall pay the temaindet, if applicable Section 5 3 Proof of Payment The Lessee shall furnish to Lessor, within thirty (30) days after the date whenevei any Imposition is payable by or in behalf of the Lessee, official receipts of the appropriate taxing authority, photocopies or other proof satisfactory to the Lessor, evidencing the payment Section 5 4 Lessee's Right to Contest Impositions Anything herein to the contrary notwithstanding, Lessee shall have and retain the right to appeal or contest by legal proceedings, or in such other manner as it may deem suitable, any Imposition, or any valuation in connection therewith, and to defer payment of any such contested item, without the consent of Lessor, even if the same ultimately results in the payment of any interest, costs or penalties In the event that Lessee contests any Imposition, Lessee shall immediately notify the City Manager or his/her authorized designee of its intention to appeal said Imposition If' at any time dunng the last three (3) years of the initial Lease Term or Renewal Tenn, Lessee shall contest an Imposition, Lessee may defer payment of a contested item upon the condition that, before instituting any such proceedings, Lessee shall furnish and keep in effect a surety bond, cash deposit of other security satisfactory to the City Manager or his/her designee in an amount sufficient to pay one hundred percent (100%) of the contested Itnpositton or assessment, with all interest on it and costs and expenses, including reasonable attorneys' fees to be incurred in connection with it The legal proceedings herein referred to shall include appropriate proceedings to review tax assessments and appeals from an cadet issued thei ern and appeals from any judgments, decrees or orders Any such contest shall delay the time periods set forth in Section 5 2 above Lessee agrees to pay such Impositions in a lump sum payment or on an installment basis Failure of the Lessee to pay such Impositions or assessments or any installment payment thereof shall constitute a default under this Lease In connection with any appeal or contest of Impositions instituted by Lessee, upon written request by Lessee to Lessor, Lessor shall cooperate with Lessee in connection with any such appeal or contest, including, but not limited to, executing such documents or affidavits when and as may be reasonably required in connection therewith, provided, however, Lessee shall pay the reasonable costs incurred by Lessor therefor ARTICLE VI LEASEHOLD IMPROVEMENTS Section 6 I Lessee's Obligation to Provide and Fund Leasehold Improvements Within one hundred eighty days (180) days of the Effective Date, Lessee, at its own cost and expense, shall subunit to Lessor its plans for the commencement and completion of the construction, and the acquisition and installation of the Leasehold Improvements The plans shall include a layout of the Property (excluding the Parking Facilities Retail Ana), a lighting plan, a depiction of all fixtures to be 17 added to Property, interior and exterior finishes and material samples, typical display technique, interior and exterior signage plan, landscaping plans, store front and any work or equipment to be done or installed by Lessee affecting any structural, mechanical or electrical part of the Property ("Plans") Within ten (10) Business Days of receipt of the Plans, the Lessor shall give Lessee written notice ot either, Lessor's approval or Lessoi's disappioval setting forth the seasons theiefoi The Lessor may only disappiove of the Plans upon a finding by the City Manages that the Plans contain material variations from the plans and specifications set forth in the Proposal In the event that Lessor disapproves the Plans, the Lessee shall within fifteen (15) Business Days of receipt ot the notice modify the Plans in accordance with the reasons set forth in Lessor's disapproval notice The modified Plans shall be resubmitted to Lessor tor Lessor's final review and approval, in accordance with the standards of review set forth above, Lessor shall have a period of ten (10) Business Days following receipt of such revised Plans within which to review same and furnish to Lessee written notice of Lessor's approval or disapproval If Lessor shall fail to furnish to Lessee written notice of Lesso''s approval or disapproval of the Plans or revised Plans submitted to Lessor, within the time frame set forth above, then the tune frames set forth herein to complete construction of the Leasehold Improvements shall be extended by the number of such additional days taken by Lessor to provide written notice of Lessor's approval of disappioval of the Plans or the revised Plans submitted to Lessor, as the case may be Notwithstanding the above, the Lessee shall cause the new dry tack storage slips to be installed as soon as reasonably possible following the removal by Licensee of the dry rack storage slips currently on the Property, and in any event, within one hundred and eighty days (180) following the Possession Date Lessee, at its sole cost and expense, shall complete constriction, acquisition and installation of the initial Leasehold Improvements as more fully described in Exhibit "A" attached hereto and made a part hereof, and acquire and install the funnshings, fixtures and equipment required for operation of the Property within three hundred and sixty five (365) days from the receipt of all required pernuts for construction of the approved Plans (except for the Dry Rack Storage Slips which shall be installed within one hundred and eighty (180) days following the Possession Date, as provided above) Lessee hereby covenants that Lessee shall expend no less than Seventeen Million Nine Hundred Seventy Thousand Dollars ($ 17,970,000 00) ("Minimum Level of Investment") in connection with the Project, which shall include, without limitation (i) all soft and hard costs and expenses incurred by Lessee to complete all capital Leasehold Improvements, including, without limitation, building, facilities, docks and equipment, (u) all envnonmental remedietion costs, paid by Lessee or on its behalf, (ui) the $1,000,000 Security Deposit and (iv) the Parking Trust Fund Contribution Upon completion of the construction, acquisition and installation of the Leasehold Impiovements and acquisition and installation ot the furnishings, fixtures and equipment, Lessee shall furnish to Lessor copies of receipts, releases and bill of sales in connection therewith as shall be iequfred to reasonably demonstrate Lessee's achievement ot the Minimum Level of Investment Section 6 2 Payment and Performance Bond Prior to the t,ommencement of any construction, the Lessee shall, at Lessee's sole cost and expense, cause Lessee's general contractor to furnish the Lessor with a Payment and Pertormannce Bond The Payment and Performance Bond shall be issued by a bonding company which shall be approved by Lessor, in an amount equal to one hundred percent (100%) of the hard costs to construct the Leasehold Improvements, naming the Lessor as the owner/obligee, and the Lessee or Lessee's general contractor, as the pnncipal guaranteeing the payment and pertbnnance of Lessee's obligations with respect to any and all construction work pertaining to the Leasehold Improvements, free of constriction or other Hens The conditions of the Payment and Performance Bond shall be to insure that the Lessee or Lessee's general contractor will (i) promptly make payment to all claimants, as defined in Section 255 05, Florida Statutes (2012), as amended, supplying the Lessee with labor, inatenals, or supplies, used directly or indirectly by the Lessee in the prosecution of the work related to the Leasehold Improvements under this Lease, and (si) to pay the Lessor all losses, damages, expenses, costs, and attorneys fees, including appellate proceedings, that the Lessor sustains because of the Lessee under this Lease pursuant to claims made under Section 255 05, Florida Statutes (2012), as amended, and (ui) peifomn the guarantee of all obligations of the Lessee's under this Lease with respect to the construction, and the acquisition and installation of the Leasehold Imp ovements 18 The Payment and Performance Bond may be ternunated at such time as the construction, and the acquisition and installation of the Leasehold Improvements are completed as evidenced by issuance of a certificate of occupancy and seasonably satisfactory evidence thereof is provided by the Lessee to the City Manager, including certification by the Lessee's architect that all requirements of the Payment and Pertormance Bond have been satisfactouly concluded The form of the Payment and Performance Bond, a sample of which is attached herewith by reference as Exhibit "T-1," shall be approved by the City Manager, which approval shall not be unreasonably withheld The Lessoi agrees that in the event the Lessee cannot obtain the above Payment and Performance Bond, the Payment and Peiforrnance Bond may be provided by the general contractor (s) (in an amount acceptable to the Lessor with respect to the work to he performed by the general contractor(s), m lieu of the Lessee providing the same as Pnncipal of the Project Said Payment and Performance Bond(s) Shall comply with all the equirements listed under in subsections (i) through (ni) above Section 6 3 Contractor's Insurance The I essee shall require every contractor performing any work pertaining to the Leasehold Improvements to furn'sh certificates of insurance including Builder's Risk Insurance, if applicable, satisfying the Lessor's eustomary and coimnereially reasonable requirements therefor, protecting the Lessor and its respective commissioners, officers, agents, and employees, against any claim for personal injuries, death and property damage that may be asserted because of the constriction, or the acquisition or installation of the Leasehold Improvements Section 6 4 Additional Consideration (a) The Lessor hereby, in consideration for the promises and covenants contained in this Lease to be kept and performed by the Lessee, shall simultaneously with the execution of this Lease on the Effective Date, grant and convey unto the Lessee all existing Improv ements (including nnprovements, furnishings, fixtures and equipment) listed in Exhibit "I", in its "as is" and "where is" condition (b) The Lessee hereby, m consideration of the granting of this Lease Shall upon termination or expiration of this Lease (i) grant and convey unto the Lessor, free and clear of all liens, title to all 1 easehoid Improvements of a permanent character (including, for avoidance of doubt, all dry racks, but excluding all trade fixtures, furnishings, equipment and movable personal property such as, without limitation refrigerators, stoves, freezers, hood systems, grills, and dishwashers), and (n) In addition to the Leasehold Improvements to be conveyed to Lessor as referenced above, Lessee shall further grant to the Lessor the right to purchase from the Lessee, all of Lessee's trade fixtures, furnishings, equipment and personal property added to or installed at the Property by the Lessee during the Lease Term, including all furnishings and equipment at then fair market value thereof, as determined by an appraisal, provided that the Lessor by notice in writing to the Lessee of at least forty five (45) days prior to the expiration, or earlier termination of the Lease Term, notifies the I essee of its election Section 6 5 Lessor's Property to Remain Free of Liens The Lessee shall make, or cause to be made, prompt payment of all money due and legally owing to all persons doing any work, including subcontractors, or providing supplies and equipment in connection with the construction, reconstruction or operation of the Property The Lessee shall have no power or right to and shall not in any way encumber the Lessor's fee simple interest in the Property If any lien shall at any time be filed against the Property, the Lessee shall promptly take and diligently pursue a cause of action to have the same discharged or to contest in good faith the amount or validity thereof and if unsuccessful in such contest, to have the same discharged ITpon the Lessee's failure to do so, within thirty (30) days following Lessee's receipt of notice thereof from Lessor, the Lessor, in addition to any other nght or remedy that it may have, may take such action as may be reasonably necessary to protect its interest, and the Lessee shall be responsible foi any and all reasonable costs incurred by the Lessoi in connection with such action, including all reasonable legal fees, costs and expenses Section 6 6 Lessor Approval All Plans famished under this Lease are expressly subject to Lessor's written approval, which the City Manager is hereby authorized to act on behalf of for purposes of such approval, and which approval he or she may not unreasonably withheld or delay and which approval shall be subject to the criteria foi approval set forth in Section 6 1, above 19 No approval by the City Manager of any Plans furnished under this Lease pursuant to this Section shall relieve Lessee of any obligation it may have at law to tile such Plans with any department of the City or any other governmental authonty having jurisdiction over the issues, or to obtain any building or other permit or approval requned by law Lessee acknowledges that any appioval given by the City Manager pursuant to this Section shall not constitute an opinion or agreement by the City that the Plans are structurally sufficient or in compliance with any laws, codes or other applicable regulations ARTICLE VII CONDUCT OF BUSINESS BY LESSEE Section 7 1 Use of Property The Lessee shall occupy the Property and commence operations on the Possession Date, subject to the operational limitations that will result from the contemplated construction of the Leasehold Improvements After the referendum with respect to this Lease concerning the Property is approved, then, within fifteen (15) days following the date as of which the Licensee vacates that portion of the Property occupied by Licensee, or abandons its operations, Lessee may take possession of and occupy such portion of the Property Following the Possession Date, Lessee shall occupy the Property as soon as reasonably possible, and covenants to continuously conduct its permitted business therein throughout the Lease Term, subject to the operational limitations that will result from the contemplated construction of the Leasehold Improvements, periodic tenant vacancies, periodic repair and refurbishment to the Leasehold Improvements, periods of time required for insurance adjustments and reconstruction following casualty or partial taking, and Force Majeure Lessee shall use the Property solely for the Permitted Uses Lessee shall not use, permit or suffer the use of the Property for any other business or purpose Lessee agrees to conduct its business upon the Property in accoi dance with the highest ethical and operating standards of the marina and restaurant industry of which L essee forms a part Section 7 2 Operation of Lessee's Business At all times dunng the Lease Tenn, Lessee shall manage the manna and restaurant operations at the Property with due diligence and efficiency, in Lessee's sole and absolute discretion, and in a manner prudent and in accord with the current business techniques within the locale for Lessee's business so as to maximize the amount of Applicable Gross Revenues, subject to Force Majeure Lessee shall carry (and shall use commercially reasonable efforts to cause each Applicable Sub -lessee to cany) at all times m the Property a stock of merchandise of such quantity, character and quality as shall be in accord with good and reputable business practices within the Coconut Grove business district which is the locale for Lessee's business Section 7 3 Signs In addition to the signage set forth in the Proposal, which is hereby deemed appeoved subject to obtaining any applicab'e permits, Lessee shall institute and enforce a uniform signage regime throughout the Property which will apply to all directional sidewalk and street signage and all exterior stoiefiont and canopy signage for the Parking Facilities Retail Area and the Pernutted Retail Area (the "Property Directional and Retail Signage Regime"), which Lessee may revise from time to time The Property Directional and Retail Signage Regime and periodic revisions to same shall be subject to Lessor's written approval and consent (which the City Manager is authorized to give), which may not be unreasonably withheld, delayed or conditioned All other signage on the Property (including, without limitation, restaurant signage and manna signage) shall be subject only to the requirements of applicable signage codes Lessee shall erect an exterior monument or pylon sign for the Property, of type, composition and design in conformance with the Miami 21 Zoning Code Lessee further agrees that it shall maintain (or shall use commercially reasonable efforts to cause any Sub -lessee to maintain) any extenor sign, awning, canopy, decoration, lettering, ad\ erasing matter or other thing in good condition and repair at all times, and, to the extent applicable, in accordance with Retail the Property Directional and Retail Signage Regime ARTICLE VIII MAINTENANCE, REPAIR AND ALTERATION OF PROPERTY Section 8 1 Lessee's Maintenance Obligations Lessee at its sole cost and expense, agrees to provide the necessary management and laboi to continuously maintain the Property, including all operating equipment, utility services, and connections on 20 the Property Lessee, at us sole cost and expense, agrees to provide, janitonal and custodian services, trash and garbage removal services, and any and all other related services necessary to have the Property, and the Leasehold Improvements remain in good, sate, sanitary condition and repan throughout the Lease Term Lessee shall be responsible for periodic repainting of all exterior surfaces of the Leasehold Improvements on the Property, maintaining all landscaping on the Pioperry, and maintaining its equipment, fixtures, furnishings, and other personal property in good condition and repair All maintenance shall be at the Lessee's sole cost and expense and will be subject to general inspection by the Lessor to insure a continuing quality of maintenance and appearance and physical condition of the Property commensurate with maintenance, health, and safety standards established by Applicable Law Section 8 2 Lessee's Repair Obligation Lessee, at Lessee's sole cost and expense, at all times during the Lease Term, shall make all rntenor, extenor, structural repairs, including repairs to the roof, wires, pipes, conduits and other equipment or facilities for supplying heat, light, power, hot and cold water services, all drainage and waste pipes or facilities leading from the Property, and to all heating, ventilating and air-conditioning equipment and any other repair or replacement to the Property and to the Leasehold Improvements Section 8 3 Preventative Maintenance and Services Lessee shall, at its sole cost and expense, provide the following preventive maintenance and services a Daily cleaning and Janitorial services for the exterioi common areas of the Property, h Grounds services including lawn, shrub and tree maintenance and removal of any rubbish or obstructions from the Property, c Exterior window cleaning to be performed as needed but no less than once every one hundred and twenty days, d Vernon control as necessary, but no less than once every thirty (30) days, e Periodic maintenance and cleaning of kitchen and exhaust equipment, and grease traps or grease inceptors, if applicable, hut no less than once every ninety (90) days, and f Painting of exterior of building including caulking of all windows and door frames no less than once every four (4) years In addition to the above, on the tenth and twentieth Lease Year of the Effective ]Date, and once every five years thereafter, the Lessee, at its sole cost and expense, shall have a qualified engineer perform a physical inspection of the Property including, but not limited to all structural components, plumbing, life satety, electrical, heating and an conditioning systems and mechanical equipment as well as any and all structural trade fixtures on the Property, as part of a preventive maintenance program The Lessee shall submit the engineer's report along with a proposed plan tor the funding and implementation of the recommendations contained in the engineer's report to the Lessor by the end of the Lease Year in which such report is due for the Lessor's ieview If the Lessee retuses, neglects or fails to provide the services required herein or does not provide adequate services within thirty (30) days after written demand from the Lessor, the Lessor may take corrective measures or cause the Property to he cleaned or repaired without waiving its right based upon any default of the Lessee and without releasing the Lessee from any obligations hereunder The Lessee shall pay the Lessor the full reasonable cost of such work withm thirty (30) days of receipt of an invoice indicated the cost of such corrective measures or cleanup Failure to pay such invoice shall constitute a default of this Lease Notwithstanding the above, the Lessee's failure to perform the corrective measures or clean-up to the Property as directed shall constitute a default of this Lease, subject to the applicable Cure Periods Nothing heiem shall imply that maintenance, repair, and inspections should be performed by the Lessee only at the suggested intervals The Lessee shall, at all tunes, he responsible for the condition of the Property and shall perform repairs required in a timely manner so as to prevent injury to persons and waste to Property Section 8 4 Changes/Alterations Except as consistent with the plans and specifications set forth in the Proposal, which are hereby deemed approved subject to obtaining applicable permits, Lessee shall not remove any buildings constituting a portion of the Leasehold Improvements of construct any additional buildings in and to the Property or any part thereof without the prior written consent of the Lessor, which consent shall be at the sole discretion of the City Commission Lessor's consent or approval shall not be required with respect to 21 any other alterations to the Leasehold Improvements so long as such alterations are generally consistent with the Proposal or necessary to comply with Applicable Law, and, without limiting the foregoing, Lessee shall not be iequired to obtain the consent of Lessor in connection with the repair or periodic maintenance or refurbishment of any Leasehold Improvements or the reconstruction of any Leasehold Improvements following any casualty or taking, of in connection with the installation of any tiade fixtures, furnishings or equipment exterioi signs (so long as same conform to the Property Directional and Retail Signage Regime), extel ion machinery, flooi covering, interior on exterior lighting, plumbmg fixtures, shades, awnings, interior build -out, including, without limitation, tenant improvements to the Parking Facilities Retail Area or the Others Permitted Retail Area No approval by the City Commission of any changes or alterations shall relieve Lessee of any obligation it may have at law to file the required documents with any department of the City or any other governmental authorit) having jurisdiction over the issues, or to obtain any building or other permit or approval required by law Lessee acknowledges that any approval given by the City Commission pursuant to this Section shall not constitute an opinion or agreement by the C ity that the changes or alterations are in compliance with any laws, codes or other applicable regulations 8 5 Capital Infiastructure Account Lessee agrees to contribute 1% of gloss revenues to a Capital Infrastructure Escrow Account to fund on -going capital infrastructures costs Inn regards to sub- lessees Gross Revenues will apply to rents received by Lessee Lessee shall send notification of the escrow fund balance to Lessor on an annual basis The Parties shall enter into an escrow agreement to govern the use of these funds ARTICLE IX INSURANCE AND INDEMNITY Section 9 1 Insurance on the Property (a) 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, with respect to its operations on the Property the types and amounts of insurance coverage set forth in items I through VII of Exhibit "J" attached hereto and incorporated herein by reference, and with respect to all Leasehold Improvements (expressly excluding the Parking Facilities Retail Area) the types and amounts of insurance coverage set forth m item VIII of Exhibit "J" 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 mamtam or cause to be obtained and maintained throughout or during the tern of this Lease, as applicable, such types and amounts of payment, peitormance maintenance, or iestoration 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, which approval shall not be unreasonably withheld, delayed or conditioned The Lessor reserves the right to reasonably amend the herein insurance requirements by the issuance of a notice in writing to the Lessee, which amended insurance requrrennents shall be consistent with comnneicially reasonable requirements then applicable to comparable leasehold interests and subject to the reasonable approval by Lessee, which approval shall not be unreasonably withheld (b) Lessor shall obtain and maintain (or shall cause the MPA to obtain and maintain) in full force and effect throughout the Lease Term, with respect to the Parking Facilities (including, without limitation, the Gray Shell Improvements), the types and amounts of insurance coverage set forth in items I, II, III, IV, VI and VIII of Exhibit "J", as the criteria therein may be revised from time to tine as provided in the immediately piecedrng subparagraph a Lessor's insurance requirements may be met through a self- insurance program Section 9 2 Delivery of Insurance Policies All public hability, workers compensation and employer's liability policies shall he retained by the Lessee The policies ot insurance iequired to be furnished pursuant to item VIII ot Exhibit "J" shall be held by and be payable, and the proceeds thereof shall be distributed in accordance with the terms of this Lease Insurance company certificates evidencing the existence of all of these policies of insurance shall be delivered to the Lessor All policies ot insurance required to be provided and obtained by Lessee shall provide that they shall not be amended or canceled on less than thirty (10) days prior written notice to the Lessor The Policies required to be maintained by Lessoi and Lessee pursuant to item VIII of Exhibit "J" shall contain waivers ot subrogation rights endorsements, as requited below The Lessoi shall have no obligation to pay pi emiums or make contributions to the insuring company or any other person or satisfy 22 any deductible with respect to any policy required to be maintained by Lessee On or before the Effective Date and not less than thirty (30) days prior to the expiration date of any policy requited to be carried pursuant to this Section, the Lessee shall deliver to the Lesson insurance company certificates evidencing all policies of insurance and renewals required to be furnished, and, upon written request by Lessor, Lessee shall furnish to Lessor copies of the applicable respective policies Receipt of any documentation of insuzanee by the Lessor or by any of its representatives which indicates less coverage than requited does not constitute a waiver of the Lessee's obligation to fulfill the insurance requirements herein Section 9 3 Adjustment of Loss Any Net Insurance Proceeds recovered on account of any damage of destruction by any casualty shall be made available for the payment of the cost of the reconstruction, replacement or repairs All of the Net Insurance Proceeds plus the amount of any deductible applicable to said damage or destruction (the "Reconstruction Escrow Fund") shall he deposited by the insurance company or by the Lessee (m the case of the deductible) with an escrow agent acceptable to the City Manager (subject to approval by City Attorney) and L essee, 1 ursuant to an escrow agreement which shall be reasonably satisfactory to the City Manager and Lessee, with commercially customary provisions for such escrows, including, without hmitation, instructions to the escrow holder that the escrow holder shall disburse the hinds to the Lessee, with notice thereof to the Lessor, as the work of the reconstruction, replacement or repairs progresses, upon certificates of the Lessee's architect or engineer supervising the work that the disbursements then requested, plus all previous disbursements made from such Reconstruction Escrow Fund, do not exceed the cost of the work already completed and paid for, and that the balance in the Reconstruction Escrow Fund is sufficient to pay for the reasonably estnnated cost of completing the required work It the amount of the Net Insurance Proceeds is less than the cost of the required work, then Lessee shall pay the excess cost, and if the amount of the Net Insurance Proceeds is greater than the cost of the required work, then the excess shall be paid to and belong to the Lessee Section 9 4 Insurer to Be Approved -Premium Receipts All policies of insurance of the character described rn Exhibit "J" shall be written by companies of recognized responsibility reasonably acceptable to the Lessor On request by Lessor, Lessee shall provide photocopies of receipts showing the payment of premium for all insurance policies required to be maintained by this Lease Section 9 5 Indemnification of Lessor Lessee shall indemnify, defend and save Lessor harmless from and against any and all claims, actions, damages, liability and expense in connection with loss of life, personal injury and/or damage to or destruction of property arising from or out at any occurrence in, upon or at the Property, or the occupancy or use by Lessee of the Property, or any part thereof, or occasioned wholly or in part by any act of omission of Lessee, its agents, contractors, employees, servants, customers, invitees, Lessees, Sub -lessees or concessionaires hr case Lessor shall be made a party to any litigation commenced by or against Lessee covered by this indemnity provision, then Lessee shall protect and hold Lessor harmless and pay all costs and attorney's fees incurred by Lessor in connection with such litigation, and any appeals thereof Lessee shall also pay all costs, expenses and reasonable attorneys' fees that may he incurred or paid by Lessor rn enforcing the covenants and agreements in this Lease Section 9 6 Waiver of Subrogation Lessor and Lessee each hereby waives any and all right of recovery Lessor or Lessee, as the case may be may otherwise have against the other party hereto and such other party's respective sere ants, agents, contractors, customers and employees, for loss or damage to the Property or the Parking Facilities, as the case may be, to the extent such loss or damage is covered by the All -Risk policies maintained or required to be maintained, respectively by Lessor (or the MPA) or Lessee, as the case may be, pursuant to the terms hereof, notwithstanding that such loss or damage may result from the negligence or fault of the other party hereto, or its servants, agents, contractors, customers or employees Lessor and Lessee each hereby waives all rights to recover against the other party for any damages arising from any cause covered by any insurance required to be carried by Lessor or Lessee, , as the case may be, or any insurance actually coined by Lessor or Lessee, as a case may be Lessee shall cause and Lessor shall cause (or shall cause the MPA to cause) its respective insurez(s) to issue appropriate waivers of subrogation rights endorsements to all policies of All -Risk insurance policies carried in connection with the Property 111 the Parking Facilities and all commercial general liability policies maintained by Lessee and Lessor (and where applicable, the MPA) shall include contractual liability coverage with respect to the contractual obligations of Lessee and Lessor (and, where applicable, the MPA) hereunder 23 Section 9 7 Release of Lessor Except as expressly provided below, the Lessee for and in consideration of the leasing and the demise of the Pioperty to the Lessee hereby release, remise and dischaige the Lessoi, its officers and employees, of and from all claims, demands, actions, hether in law oi in equity which may be tiled or asserted by the Lessee i r its Assignees for or on account of improvements made and furniture, fixtures and equipment mstalled in the Property, and from any and all costs and expenses, of Lessee or its Assignees in connection with this Lease, including, but not limited to the development ot'the Property and acquisition of the Leasehold Improvements, which may result from a thud party challenging the salidity or legality of this transaction under the City Charter oi Code or the laws of the State of Florida, or arising out of the award of this Lease, or any subsequent Assignment of this Lease by the Lessee or its Assignees ("Claim") It is the intent of the Parties that, except as expressly provided below, this provision shall control over any other provision in this Lease and that notwithstanding any limited representations provided by Lessor under Section 2 5 of this Lease, except as expressly provided below, neither the Lessee, nor its Assignees shall seek to recover from the Lessor compensation for, or reimbursement of any costs, losses, fees or expenses incurred by the Lessee or its Assignees, including expenses incurred in connection with the acquisition of this Lease or the financing, and/or installation of the Leasehold Improvements, or otherwise, as a result of any adverse judgment which may be entered or relief granted in connection with the Claim The terms of this provision shall expressly be made a part of any future assignment or mortgage of the Leasehold Interest ARTICLE X SERVICES AND UTILITIES Section 10 1 Lessee to Provide and Pay for Utilities The Lessee shall pay, or cause to be paid, all proper charges for gas, electricity, light, heat, water and power, for telephone, protective and other communication services, and for all other public or private utility services, which shall be used, rendered or supplied upon or in connection with the Property and the Leasehold Improvements, or any part of it, at any time during the Lease Term, and the Lessee shall comply with all contracts relating to any such services and will do all other things required for the maintenance and continuance of all servi :es as are necessary for the proper maintenance and operation of the Property and the Leasehold Improvements The Lessee shall also at its sole expense procure any and all necessary peanuts, licenses or other authorization required for the lawful and proper installation and maintenance upon the Property of wires, pipes, conduits, tubes and other equipment and appliances tor use in supplying any such utilities, services or substitutes to the Property Section 10 2 Lessor Not Liable for Failure of Utilities The Lessor shall not be liable for any failure of water supply, sewer, gas or electric cuirent, or tor any injury or damage to any person or the Property caused by or resulting from water, gas or electricity which may leak or flow from the water or gas mains on to any part of the Property or the Leasehold Improvements The Lessor shall not be required to make any alteration to any service or utility system of the Property on behalf of Lessee, pros ided, however, following notice in writing from Lessee to Lessor of the interruption of any electric, water or sewer service to the Parking Facilities Retail Area, Lessor shall immediately commence, and diligently pursue, all cotiiinercially reasonable measures required in order to restore such service Lessor shall not be liable for temporary failure of services, and same shall not be deemed to constitute actual or constructive eviction, nor entitle Lessee to any abatement or duninution rn rent payable under this Lease ARTICLE XI TRANSFERS, SUBLETTING AND LEASEHOLD FINANCING, Section 11 1 Lessee shall hake the authority to enter into Sub -leases or assignments for portions of the Pioperty, without the consent of Lessor, so long as such Sub -leases oi assignments conform to the Permitted Uses Any Sub -leases or assignments not conforming to such uses shall be void and of no force or effect and shall not confer any interest or estate in the purported Sub -lessee or assignee, and if Lessee shall fail to terminate any such Sublease or assignment not conforming to the Permitted Uses, within sixty (60) days following demand therefor from Lessor, such failure shall constitute a default under this Lease and the Lessor, at its election, may termnate this Lease It is agreed that all applicable terms and conditions of this Lease shall extend to and be binding on all Sub -lessees and shall be for a period of time equal to or less than the Lease Term Lessee shall he 24 liable for acts and omissions by any Sub -lessee to the extent any such acts or omissions constitute a bleach of the terms of this Lease Lessor reserves the right to directly terminate the rights and interests of any Sub -lessee under any Sub -lease for any cause for which Lessee's Leasehold Interest may be terminated, follow rig the expiration of any applicable cure period following applicable notice To the extent Lessor's consent is required with respect to any Sublease or assignment, Lessee shall reimburse to Lessor, as Additional Rent all reasonable costs and expenses, including reasonable attorneys' fees, winch Lessor inc irs by reason of or in connection with its review and consideration of any such Sublease or assignment and all negotiations and actions with respect thereto, such Additional Rent to be due and payable within thirty (30) days of receipt ofa statement of such costs and expenses from Lessor (b) Procedure for Sub -lease or Assignment Should Lessee desire to enter into a Sublease or assign its interest in this Lease (in each case, to the extent Lessor's consent thereto is required as provided above), Lessee shall, in each instance, give written notice of its intention to do so to the City Manager at least fifteen (15) days, in the case of any such Sublease, and thirty (30) in the case of any such assignment, prior to the effective date of any such proposed Sublease or assrgmnnent, specifying in such notice the nature of such proposed Sublease or assignment and the proposed date thereof and specifically identifying the proposed Sub -lessee or Assignee Such notice shall be accompanied by a copy of the proposed Sublease, license, concession or permit agreement, or proposed assignment (c) Additional Consideration Payable to Lessor Except as provided below with respect to a valet concession and with respect to Subleases within the Parking Facilities Retail Area and the Other Permitted Retail Areas (other than a Marine Retail Store) Lessee shall in consideration therefore, include rn Lessee's Gross Revenues the amount of Sub -lessee's Gross Revenues which shall be listed separately on Lessee's monthly and annual reports of Gross Revenues Sub -lessee's records shall be kept rn accordance with Section 4 4 Additionally, Lessor reserves the right to examine such Sub -lessee's books and audit Sub -lessee's entire records in accordance with Sections 4 6 and 4 7 of this Lease Lessee shall collect a tee from all valet concessionaries allowed on the Property ("Valet Fees") t essee shall include in its calculation of Gross Revenue such Valet Fees as received by Lessee and Percentage Rent for such Valet Fees shall be calculated pursuant to Section 4 1 3(v) of this Lease The acceptance by Lessor of the payment of Rent following any Sub -lease prohibited by this Article shall not be deemed to he a consent by Lessor to any such Sub -lease nor shall the same be deemed to be a warner of any right or remedy of Lessor hereunder Section 11 2 Definitions As used in this Article the term (a) "Transfer" means (r) any total or partial sale, Assignment or gifting of Lessee's Leasehold Estate or any contract or agreement to do any of the same (ii) any transfer of the membership interests of Lessee if the transfer results in the beneficial ownership of Grove Bay Investment Group, LLC ("GBIG ") being less than 51% of the Lessee, or (ni) any merger or consolidation of Lessee with any other person, or the sale or lease of all or substantially all of the assets of the Lessee or of any Owner, other than an Owner whose shares are publicly traded (b) "Owner" means (i) any person firm, corporation or other entity which owns, directly or indirectly, legally or beneficially, more than fifteen percent (15%) of the stock or equity of the Lessee, but shall not include any equityholder of an Owner whose shares are publicly traded (c) "Owner whose shares are publicly traded" means an Owner (r) who has filed an effective registration statement with the Securities & Exchange Commission (or its successor) with respect to the shares of any class of its voting stock or of all classes of any other Form ofownership interest which includes voting rights, and (n) whose voting stock and other form of ownership interest described in clause (i) is listed for trading purposes on a securities exchange subject to the regulatory jurisdiction of the Securities & Exchange Commission (or its successor) or is publicly trader' over the counter 25 Section 11 3 Transfers The Lessee recognizes that the operational experience of the Lessee as set forth in the Proposal was given special consideration by the Lessor in the public selection process undertaken by the Lessor tor the award of this Lease Therefore, Lessee agrees that except as permitted pursuant to subparagraphs (a), (b) and (c) below, or as specifically appioved pursuant Section 11 7 below, no Transtei may be made, suffered of created by the Lessee, or any Owner without the prior written consent of the City Manager which consent shall not be unreasonably withheld al delayed The City Manager, in his sole discretion, may, but shall not be obligated to, present any request for Transtei to the City Corninissron for its final approval The following Transteis shall he permitted hereunder (a) Any Transfer directly resulting from the foreclosure of Lessee's Leasehold Estate, provided that such purchaser or grantee is an institutional investor or an agent, designee or nominee of an institutional investor which is wholly owned or controlled by an institutional investor, and that such purchaser or grantee within six (6) months after taking possession of the Property, shall have entered into an agreement for the management and operation of the Property with an acceptable operator or is itself an acceptable operator, (b) any Transfer to an acceptable operator consented to by the City Manager, whose consent shall not be unreasonably withheld or delayed or conditioned, (c) the issuance of stock/equity or stock/equity options to Lessee's directors, officers, or employees, provided the stock/Nutty or stock/equity options issued constitute, in the aggregate, less than fifteen percent (15%) of the issued and outstanding stock/equity of Lessee, The Parties hereby acknowledge and agiee that anything heienn to the contrary notwithstanding, the "going public" by Lessee, including, but not limited to, the filing of a registration statement with the Securities and Exchange Commission, the creation of one or more classes of stock and the offenng of shares of stock to the public for purchase, shall not constitute a Transfer hereunder and shall not require the consent of the Lessor Any consent to a Transfer shall not waive any of the Lessor's rights to consent to a subsequent Transfer Any Transfer made in violation of the terms hereof shall be null and void and of no force and effect Section 11 4 Notice of Transfer With respect to any Transfer which must be approved by the City Manager, the Lessee shall give or cause to be given to the Lessor written notice (including all infonnatro.n necessary for the Lessor to make an evaluation of the proposed acceptable operator according to the requirements of this Lease) of any Transfer of which Lessee, or its officers shall have knowledge, not less than sixty (60) days prior to any such proposed Transfer, and the Lessor shall within thirty (10) days of its receipt of such information, advise Lessee in writing it it shall consent to same If the Lessoi shall not consent to a Transfer, the City Manager shall state the reasons for such disapproval in his notice to Lessee If the Lessor is not required to consent to a Transtei pursuant to the terms hereof, the Lessee shall notify the Lessoi in writing of same within thirty (10) days her the date of Transtei In the event the City Manager elects to exercise his right under Section 11 3 to present any request for Transfer to the City Commission for its approval, the City Manager shall use due diligence to present the request for Transfer to the City Commission as soon as practicable and the time for performance by Lessor shall be reasonably extended to provide sufficient time for presentation to the City Conunrssion Section 11 5 Information as to Shareholders, etc Lessee shall from time to tune throughout the Lease Term, as the Lessor shall reasonably request, furnish the Lessor with a complete statement, subscribed and sworn to by the President or Vice -President and the Secretary or Assistant Secretary, or manager, as the case may be, of the Lessee, setting forth the full names and addresses ot holders of membership interests in Lessee, and the extent of their holdings, and in the event any other parties have a beneficial interest in such stock, their full names and addresses and the extent of such interest as determined or indicated by the records ot Lessee Notwithstanding the foregoing, the information required by this Section 11 5 shall not be requued to be furnished with respect to the shaieholders of any owner whose shares are publicly traded Section 11 6 Effectuation of Permitted Transfers No Transfer ot the natute described in Subsection 11 3(b) above shall be effective unless and until (a) all Rents, taxes, assessments, Impositions, insurance, permitting and other charges required to be paid by the Lessee under this Lease shall be paid by the Lessee up to the date of Transfer, 26 and all other covenants and agreements to be kept and performed by the Lessee shall be substantially complied with at the date of Transtei, and (b) the entity to which such Transfer is trade, by instrument in writing reasonably satisfactory to the City Manager and in a form recordable among the land records, shall, for itself and its successors and assigns, and especially tor the benefit of the Lessor expressly assume all of the obligations of Lessee under this Lease, and agiee to be subject to all conditions and restrictions to which Lessee is subject, provided, however, that any Transferee shall not be required to assume any personal liability under this Lease with respect to any matter arising prior oi subsequent to the period of such Tiansferee's actual ownership of the Leasehold Estate created by this Lease (it being understood, nevertheless, that the absence of any such liability for such matters shall not impair, impede or prejudice any other right or remedy available to the Lessor for default by Lessee) Nothing herein shall be construed to relive or release the Lessee from liability for the performance of all of the obligations of Lessee under this Lease, unless the Lessor in writing expressly provides for such a release, provided, however, notwithstanding the foregoing, the Lessee immediately prior to such Transfer shall have no liability whatsoever with respect to any matter ansing subsequent to the date of such Transfer Section 11 7 Criteria foi Consent for Transfer The Lessor may condition its consent to a peinntted Transfer upon satisfaction of all oi any of the following conditions (i) The net worth, determined in accordance with generally accepted accounting principles, of the Transferee immediately puoi to the Transfer shall not be less than the net worth of said Transferoi on the Effective Date adjusted for inflation (u) Such Transtei shall not adversely affect the quality and type of business operation which the Lessee has conducted theretofore, (ni) Stich Transferee, shall possess qualifications for the operation of Lessee's business as reasonably required of an acceptable operator a comparable project, or shall engage an acceptable operator having such qualifk.ations and shall have demonstrated recognized experience in successfully operating such a business, including, without limitation, experience in successfully operating a similar quality business, (iv) Such Transfeiee shall continue to operate the business conducted at the Property pursuant to all the provisions of this Lease, (\) Such Transferee shall assume in wnting, in a tonm acceptable to Lessor, all of Lessee's obligations hereunder, and Lessee shall provide Lessor with a copy of all documents pertaining to such Transfer, and (vi) Lessee shall pay to the Lessor any due, but unpaid Rent Section 11 8 Liability of Lessee If a Transferee does not meet all of the ciiteria set forth in Section 11 7, Lessor, at its sole option, by notice to Lessee prior to the consummation of such Tiansfer, may iequire Lessee transferring such interest to imam liable under this Lease for the performance of all terms, including, but not binned to, payment of Rent due undei this Lease Section 11 9 Payment ! Jpon Tiansfer or Sale of Lessee Business or Stock Lessee recognizes and agrees that (i) the expenence of Lessee was given special consideration by 1 esSor in the selection pi ocess which resulted in the award of this Lease, (n) the qualifications and identity of Lessee are of particular concern to the community and Lessor, and (ni) it is partially because of such qualifications and identity that Lessor is entering into this Lease Accordingly, at all times pnor to the date of Transfer (A) the Lessee's Equity Contribution shall be maintained or have been satisfied prior to the date of Transfer, and (B) GBIG Shall retain voting and operational control of Lessee Any waiver of the foregoing requirement shall require the City Manager's prior written consent, which may he granted or withheld in his or her sole and absolute discretion Lessee or Transferee shall pay to Lessor a fee (the "Transtei Fee"), in connection with any Transfer as follows during the initial five (5) years of the Term, the Tiansfer Fee for any sale or Transfer shall be 2% of the Gross Sale Amount, between Years 5 to 10 of the Term the Transfer Fee shall be 1 5% of the Gross Sale Amount, between Years 10 — 20 of the Term the Tiansfer Fee shall be 1 0% of the Gross Sale Amount, and after Year 20 of the Term, the Transfer Fee shall be 0 75% of the gross sale amount of such transaction The Lessee shall pay to the Lessor the Transfer Fee at the tune the Transfer becomes effective, or in the case of the sale of the Lessee's stock at the time the shares of stock aie sold Section 11 10 Acceptance of Rent from Transferee 27 The acceptance by Lessor of the payment of Rent following any Transfer prohibited by this Article shall not be deemed to be a consent by Lessor to any such, not shall the same be deemed to be a waiver of any right or remedy of Lessor hereunder Section 11 11 Transfers of the City's Interest At the Lessee's request, Lessor shall provide the Lessee copies of any and all agreements or contracts pertaining to the total of partial sale, Assignment, conveyance, mortgage, trust or power, or other transfer in any mode or form of or with respect to the Lessor's reversional)/ or fee interest in the Property, or any part thereof, or any interest therein, or any contract of agreement to do any of the same, to any puichaser Assignee, mortgagee, or trustee Lessor hereby agrees to incorporate the terms and conditions set forth in this I ease or in any agi eement or contract with such purchaser, Assignee, mortgagee, or trustee Section 11 ] 2 Mortgages and Mortgagees 11 12 1 Leasehold Mortgage (a) Notwithstanding anything herein to the contrary regarding any Transfers, hut subject to the provisions of this Section 11 12, and furthei provided that Lessor has not notified Lessee in writing that a Lessee Default has occurred that remains uncured, Lessee shall have the right during the Lease Term, to encumber the Leasehold Estate by Leasehold Mortgage, for the purpose of securing the financing tor the construction of the Leasehold Improvements and/or for the long-term financing or iefinancing of any such Leasehold Improvements, subject to review and approval by the City Manager of the mortgage documents, for the sole purpose of ensuring compliance thereof with the conditions for mortgaging as set forth m this Section 11 12, provided that such Leasehold Mortgage shall not encumbei Lessor's fee snnple title to the Property Lessee shall provide copies of all mortgage documents required for the City Manager's review Notwithstanding anything to the contrary in this Section or in this Lease, the Lessoi and Lessee expressly agree, and (by acceptance of the Leasehold Mortgage) any Leasehold Mortgagee, that the Lessee's right to place a Leasehold Mortgage against the Lessee's Leasehold Estate is subject to the following 1 At the time the Leasehold Mortgages is made, Lessee has not been notified of any Lessee Default under this Lease that remains uncured 2 No Leasehold Mortgagee or anyone claiming by, through or under the Leasehold Mortgagee, shall by virtue of such Leasehold Mortgage, acquire any greater rights in the Property than the Lessee has under this Lease 3 The Leasehold Mortgage shall be expressly subject and subordinate to all conditions and covenants of this Lease and to the rights and obligations of Lessor The Leasehold Mortgagee of any Leasehold Mortgage aid the owner of any indebtedness secured by the Leasehold Mortgage, upon acquit mg Lessee's Leasehold Estate shall take the same subject to the covenants of this Lease 4 The Leasehold Mortgage shall expressly provide that the Leasehold Moitgagee shall notify Lessor of default by Lessee under the Leasehold Mortgage prior to commencing foreclosure pi oceedings 5 That any right or remedy available to any Leasehold Mortgagee as piovided in this Section 11 12 shall be deemed to apply m all respects to any affiliated designee or nominee of such Leasehold Mortgagee 6 That the Lessor and any mortgagee of Lessor shall execute and deliver to any Leasehold Mortgagee a non-dishirbance agreement in form and snbsuince reasonably satisfactory to such Leasehold Mortgagee and Lessor 7 That except as expressly prohibited by the provisions of this Section 11 12, any Leasehold Mortgage may be upon such terms and conditions as the Lessee and Leasehold Mortgagee may agree In no event may the amount of such financing or refinancing exceed the greater of (a) eighty percent (80%) of the fair market value of the Leasehold Estate and all the Leasehold Improvements thereon, or (b) eighty percent (80%) of the Replacement Costs ("Replacement Costs" are defined as the total costs for replacing the Leasehold Improvements located on the Property) Lessee shall deliver to Lessor promptly after execution by Lessee a true and verified copy of any Leasehold Mortgage, and/or any amendment, modification or extension thereof, togethei with the name and address of the owner and holder thereof I essee may not encumbei the Leasehold Estate as security for any Indebtedness of Lessee with iespect to any whet seal or personal property now or hereinafter owned by Lessee (b) During the continuance of any Leasehold Mortgage until such time as the hen of any Leasehold Mortgage has been satisfied 28 (i) The Lessor shall not agree to any mutual termination not accept any surrender of this Lease (except upon the expiration of the Term) nor shall the Lessor consent to any material amendment or modification of this Lease, or waive any rights or consents it may be entitled to pursuant to the terms hereof, without the prior written consent of Leasehold Mortgagee, which consent shall not be unreasonably delayed or withheld (it) Notwithstanding any default by Lessee in the performance or observance of any covenant, condition of agreement of this Lease on the part of Lessee to be performed or observed, the Lessor shall have no right to terminate this Lease even though a Lessee Default shall have occurred and be continuing, unless and until the City Manager shall have given Leasehold Mortgagee written notice of such Lessee Default and Leasehold Mortgagee shall have failed to remedy such default or to acquire the Leasehold Estate created hereby or to commence foreclosure or other appropriate proeeedmgs in the nature thereof, all as set forth in, and within the time specified by, this Section 11 12 (in) Subject to the provisions of subparagraph (iv) immediately below, Leasehold Mortgagee shall have the right, but not the obligation, at any time prior to termination of this Lease, to pay all of the Rent due hereunder, to provide any insurance, to pay any taxes and make any other payments, to make any iepans and improvements, to continue to construct and complete the Leasehold Improvements, and do any other act or thing required of Lessee hereunder, and to do any act of thing which may be necessary and proper to be done in the performance and observance of the covenants, conditions and agreements heieof to prevent the termination of this Lease All payments so made and all things so done and performed by Leasehold Mortgagee shall be as effective to prevent a termination of this Lease as the same would have been if made, done and performed by Lessee instead of by Leasehold Mortgagee Any act of inaction by a Leasehold Mortgagee shall be at the reasonable discretion of the Leasehold Mortgagee (iv) Should any Lessee Default under this Lease occur, Leasehold Mortgagee shall have sixty (60) days, or such additional time as is reasonably necessary to diligently cure the Lessee Default, after receipt of notice from the City Manager setting forth the nature of such Lessee Default, to remedy same and, if the Lessee Default is such that possession of the Property may be reasonably necessary to remedy the Lessee Default, Leasehold Mortgagee shall, within such sixty (60) day period, commence and diligently prosecute a foreclosure action or such other proceeding as may he necessary to enable Leasehold Mortgagee to obtain, such possession, provided that (aa) Leasehold Mortgagee shall have fully cured any default in the payment of any monetary obligations of Lessee under this Lease within such sixty (60) day period and shall continue to pay currently such monetary obligations as and when the same are due, (bb) Leasehold Mortgagee shall within six (6) months of the date that it takes possession of the Subject Property employ an "Acceptable Operator" for the continued opeiation of the Project, which shall mean such operator of the facility as designated by the Leasehold Mortgagee and approved by the City A lanaget, which approval shall not be unreasonably withheld or delayed so long as such operatoi has the relevant experience and opeiating history coinpaiable to the Lessee, and (cc) Leasehold Moitgagee shall have acquired the Leasehold Estate created hereby or coniinenced foreclosuie or other appropi late proceedings in the nature thereof within such sixty (60) day period or prior thereto, and shall be diligently and continuously prosecuting any such proceedings to completion All rights of the City Manager to terminate this Lease as the result of the occurrence of any such Lessee Default shall be subject to and conditioned upon the City Manager having first giv en Leasehold Mortgagee written notice of such Lessee Default and Leasehold Mortgagee having failed to remedy such default or acquire Lessee's Leasehold Estate created hereby or commence foreclosure or other appropriate proceedings in the nature thereof as set forth in and within the time period specified by this subparagraph (iv) (v) A Lessee Default under this Lease which in the nature thereof cannot he iemedied by Leasehold Mortgagee shall be deemed to be remedied if (aa) within sixty (60) days after receiving written notice from the City Manager setting forth the nature of such Lessee Default, Leasehold Mortgagee shall have acquired Lessee's Leasehold Estate or commenced foreclosure or other appropriate proceedings in the natuie thereof, (bb) Leasehold Moitgagee shall diligently and continuously piosecute any such pioceedings to completion, (cc) Leasehold Mortgagee, within such sixty (60) day period, shall have fully cured any default that does not require possession of the Pioperty, including a default in the payment of any monetary obligations of Lessee under this Lease and shall thereafter continue to faithfully peiform all such obligations that do not require possession of the Property, and (dd) within six (6) months aftei Leasehold Mortgagee shall have gained possession of the Property, Leasehold Mortgagee shall have employed an Acceptable Operatoi and shall continue to employ an Acceptable Operator throughout the Lease Term 29 (vt) If the Leasehold Mortgagee is prohibited by any process, or injunction issued by any court, or by reason of any action by any court having jurisdiction of any bankruptcy, debtor rehabilitation or insolvency proceedings involving Lessee from cornmenctng, or prosecuting foreclosure or other appropriate proceedings in the nature thereof, the tunes specified in subparagraphs (iv) and (v) above for commencing or prosecuting such foreclosure or other pioceeding shall be extended for the period of such prohibition, provided that Leasehold Mortgagee shall have fully cured any default including a default m the payment of any monetary obligations of Lessee under this Lease, and shall continue to perform cunently such obligations as and when the same fall due, and provided that Leasehold Mortgagee shall diligently attempt to remove any such prohibition (ti. u) The City Manager shall marl to Leasehold Mortgagee a duplicate copy by certified mail of any and all notices which the Lessor may from time to time give to or serve upon Lessee pursuant to the provisions of this Lease, no notice by the City Manager to Lessee hereunder shall be deemed to hate been given unless and until a copy thereof has been mailed to the Leasehold Mortgagee (vim) Foreclosure of a Leasehold Mortgage or any sale thereunder, whether by judicial proceedings or by virtue of any power of sale contained in the Leasehold Mortgage, or any conveyance of the Leasehold Estate to Leasehold Mortgagee by virtue or in lieu of the foreclosure or other appropriate proceedings in the nature thereof, shall not require the Lessor's consent or constitute a breach of any provision of, or a default undet this Lease Upon such foreclosure, sale or conveyance, the Lessor shall recognize Leasehold Mortgagee, or any other foreclosure sale purchaser, as tenant hereunder, provided, that Leasehold Mortgagee or any such foreclosure sale purchaser shall qualify as or shall employ an Acceptable Operator within six (6) months of the date of such fot eclostue, sale or conveyance, and shall continue to qualify as or employ an Acceptable Operator throughout the Lease Tenn Further, provided, that in the event there are two or more Leasehold Mortgagees or foreclosure sale purchasers (whether the same or different Leasehold Mortgagees), the Lessor shall have no duty or obligation whatsoever to determine the relative, priorities of such Leasehold Mortgages or the rights of the different holders thereof and or foreclosure sale purchasers (ix) Subject to the restrictions and limitations imposed on the Lessor by the Charter of the City of Miami and the provisions of Section 1112, Lessor and Lessee shall cooperate in including in this Lease by Suitable amendment from time to time any provision which may be requested by any proposed Leasehold Mortgagee, or may otherwise be reasonably necessary, to implement the provisions of this Section 11 12, pro\ ided, however, that any such amendment shall not in any way affect the Lease Term (x) Notwithstanding that this Lease otherwise contemplates that Net Insurance Proceeds or Net Condemnation Proceeds shall be deposited with an escrow agent and disbursed pursuant to the terns of the escrow agreement with such escrow agent, whenever. the Leasehold Estate shall be encumbered by a Leasehold Mortgage during the Lease Term, all such Net Insurance Proceeds or Net Condemnation Proceeds shall be deposited with and disbursed by such Leasehold Mortgagee pursuant to its customary and commer rally reasonable procedures 11 12 2 No Waiver of Lessee's Obligations or Lessor's Rights Nothing contained herein or in any Leasehold Mortgage shall be deemed or construed to relieve Lessee from the full and faithful observance and performance of its covenants, conditions and agreements contained herein, or from any liability for the non -observance or non-performance thereof, or to require or provide for the subordination to the lien of such Leasehold Mortgage of any estate, right, title or interest of the City in or to the Project, the Property or this Lease Nothing in this Lease shall be deemed an agreement on the part of the Lessor to subordinate its fee simple interest in the Property to the lien of any Leasehold Mortgage placed on the Leasehold Estate ARTICLE XII COMPLIANCE WITH LAWS Section 12 1 Compliance with Laws Lessee shall, at Lessee's sole cost and expense, comply with all regulations of all Applicable Laws now In force, or which may hereafter be in force, pertaining to Lessee or its use of the Property, and shall faithfully observe in the use of the Property or in the performance of any alterations (including, without limitation, Lessee's work) all Applicable Laws now in force or which may hereafter be in force Lessee shall indemnity (and such indemnity will survive the termination or expiration of the Lease for a period of five (5) years), defend and save Lessor harmless fiom penalties, fines, costs, expenses, suits, claims, or damages resulting from Lessee's failure to perform its obligations in this Lease 30 ARTICLE XIII ENVIRONMENTAL LIABILITY Section 13 1 Definition of Terms For purposes of this Article XIII the following terms shall have the meaning attributed to them herein 13 1 I "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, compounds, pesticides, petroleum products including crude oil and 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 including, but not limited to, all Applicable Laws 13 1 2 "Environmental Laws" shall mclude, but shall not be limited to, the Comprehensive Envnonmental 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 collectively "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 §9601, et seq , the Hazardous Material Transportation Act, 49 tl S C §1801, et seq , the Clean Water Act, as amended, 33 U S C § 131 I, et seq , the Clean Air Act, as amended, 15 U S C §260I 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 ("EPGRTKA" of 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 Chapters 252,255,376,403,442, Florida Statutes, as amended, and the regulations promulgated thereunder, and any other local laws regulations, including, but not limited to Chapter 24, Environmental Protection, of the Code of Miami -Dade County, Florida, as all of the foregoing may be amended, modified, supplemented, superseded or replaced at any time during the Term, that govern or relate to (i) The existence, cleanup and/or remedy of contamination of the Property by Hazardous Materials, (n) The protection of the environment from spilled, deposited or otherwise emplaced contamination by Hazardous Matenals, (ni) The control of Hazardous Materials, or (iv) The use, generation, discharge, transportation, treatment, removal or recovery of Hazardous Materials 13 1 3 "Costs" shall mean all costs incurred in connection with correcting any violations of any Environmental Laws and/or in connection with the clean-up of contamination by Hazardous Materials on the Property 13 1 4"Clean Up" shall mean any remediation and/or disposal of Hazardous Materials at or from the Property, which is c•dered by any federal, state, or local environmental regulatory agency 13 1 5"Underground Storage Tanks" shall mean any fuel oil, petroleum or gas underground storage tanks which may be located on the Property ("LISTS") Section 13 2 Lessee's Environmental Covenants The 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 Property or any portion thereof by the Lessee, its agents, employees, contractors, Lessees, or invitees except as may be customarily used and iequired to conduct marina and restaurant operations and in connection with any other Permitted Uses Lessee shall not permit any activities on the Property that would violate Environmental Laws It Lessee should breach this covenant, Lessee shall take all actions necessary to comply with all Environmental Laws and shall, at Lessee's sole cost and expense, perform any Clean Up Lessee's obligation under this section shall survive the expiration or earlier termination of this Lease for a period of one (1) year 13 2 I Environmental Testing Obligations Lessee shall conduct a Phase Two Environmental Assessment and soil analysis of the Property before and after the Lease Term (or Renewal Term) to deternune tt` it has left any Hazardous Materials 31 contaminants on the Property If contamination by Hazardous Materials is found to be left on the Property, to the extent such contamination originated upon the Property arising horn or caused by the presence, in or about the Property, of any Hazardous Materials placed on or about the Property by Lessee, or its agents, employees or Assignees, or at Lessee's direction, or by Lessee's failure to comply with all applicable Environmental Laws (and not as a consequence, for example, of migration of contamination from nearby properties) during the Lease Teim, Lessee shall, at its sole cost and expense, pay to clean up the contamination of such Hazardous Materials, subject to the limitations within Section 13 4 herein Additionally, upon Lessor's iequest (but not more frequently than once during any five year period during the Lease Teim, unless the City has a ieasonable basis to believe that contamination by Hazardous Matenals in violation of applicable Environmental Laws, then exists), Lessee shall conduct such soil analysis tests the City may require from time to time during the Lease Term and Renewal Term, if any, Lessee shall be responsible for the cost of any such tests Section 13 3Representation by Lessor The Lessor represents and warrants that no lawsuits, claims, legal or administrative, have been brought against Lessor, rn connection with the environmental condition of the Property or the TJSTS as a result of the Lessor's or any pilot Lessee's use or occupancy of the Property, nor is Lessor aware of the existence of any Hazardous Materials thereon, except as may be present in connection with the USTs and/or the asbestos containing materials as expressly provided for herein Section 13 4 Lessee's Indemnification Lessee shall indemnify, protect, defend and hold Lessor free and harmless from and against any and all suits, actions, claims, regulatory actions, liabilities, penalties, losses, injuries, and expenses, including attorney's fees, resulting from the death or injury to any person, destruction or damage to property, ansing from or caused by the presence, in or about the Property, of any Hazardous Materials placed on or about the Property by Lessee, or its agents, employees or Assignees, or at Lessee's direction, or by Lessee's failure to comply with all applicable Environmental Laws Section 13 5 Asbestos The Lessee acknowledges that prior to the Effective Date, the Lessee has undertaken an environmental site assessment of the Property and accordingly, the Lessee knows that there may he asbestos containing materials ("ACM") in the form of ceiling tiles, plaster walls and roofing matenal The Lessee shall, at Lessee's sole cost and expense, Clean Tip any such ACM in the event that as a result of building renovations or modifications such ACM becomes friable Section 13 6 Survival of Lessee's and Lessor's Obligations The respective rights and obligations of Lessor and Lessee under this Article XIII shall survive the expiration or termination of this Lease foi a period of one (1) year Section 13 7 Cost of Environmental Reinediation The Parties hereto shall be responsible foi the cost ot any environmental remediation or nutigation within the Property and the Submerged Lands on the following basis (i) Lessee's initial liability to satisfy environmental permitting requirements, including any envnonmental 'mediation or mitigation required as a condition to such permit, or to Clean Up any pre-existing contamination by Hazardous Materials m accordance with Applicable Law, provided herein shall he One Million Dollars ($1,000,000), and (n) In the event the cost of remediation exceeds $ 1,000,000, the amount which exceeds $ 1,000,000 will he split on a 50/50 basis between the Lessor and the Lessee (provided that Lessor may elect to offset the 50% share of the L essor therefore against Rent thereafter coming due hereunder) One hundred percent (100%) of the remediation costs paid by Lessee's remediation will be counted towards the Equity Contribution and the Minimum Level of Investment The Lessee shall be required to submit reasonably acceptable documentation to the Lessor in order to facilitate the Lessor's verification of Lessee's expenditures for any su h remediation costs ARTICLE XIV DAMAGE OR DESTRUCTION OF PROPERTY Section 14 1 Definitions For the purposes of this Article XIV, the following woids shall have the meanings attributed to them m this Section 14 1 (a) "Completely Destroyed" means the destruction of the safe, leasable use or occupancy of a substantial portion ot the Property (excluding the Parking Facilities Retail Area), as determined by Lessee in its sole discretion, under this Lease which damage cannot 32 reasonably be repaired, restored or replaced within one hundred and eighty (180) calendar days from the date on which the damage occurred (b) "Partial Destruction" means any damage to the Property (excluding the Parking Facilities Retail Area) which damage can reasonably be repaired, restored or replaced within one hundred eighty (180) calendar days from the date on which the damage occurred Section 14 2 Lessee's Duty to Repair, Restore or Replace the Property After Damage In the event of damage by fire or otherwise of the Property (excluding the Parking Facilities Retail Area) including any machinery, fixtures or equipment which is a part of the Property, the Parties agree as fol lows (i) In the event of Partial Destruction, within sixty (60) calendar days of the damage (subject to reasonable delay and/or Force Majeure), the Lessee shall use the Net Insurance Proceeds available for that purpose, together with Lessee's own funds (if the Net Insurance Proceeds are insufficient) to commence and diligently pursue to completion within one hundred eighty (180) calendar days from the date the damage occurred (subject to reasonable extension and/or Force Majeure), the repair, restoration or replacement of the damaged or destroyed portion of the Property ("Restoration Work"), and this Lease shall remain in full force and effect, with no abatement in Rent (u) In the event the Property (excluding the Parking Facilities Retail Area) is Completely Destroyed at any time during the Lease Tenn, inclusive of any Renewal Term, the Lessee, in its sole discretion, shall have the option (a) at the Lessee's sole cost and expense (togethei with Net Insurance Proceeds available for that purpose), to commence and diligently pursue to completion the Restoration Work, in accordance with the provisions of Section 14'3 below, and Lessee shall complete the Restoration Work within twelve (12) months from the date the damage occurred (subject to reasonable delay and/or Force Majeure) and this Lease shall remain in full force and effect, with no abatement in Rent, or (b) to elect not to undertake the Restoration Work by providing written notice to Lessor and in which event this Lease shall terminate, and the Lessee shall, at the Lessee's sole cost and expense, (hut using along with the Lessee's own funds, Net Insurance Proceeds available for that purpose) deliver possession of the Property to Lessor free and clear of all debns and Lessor and Lessee shall each be released thereby from any further obligations hereunder accruing after the effective date of such termination, except that such release shall not apply (aa) to any Rent or Additional Rent or other sums accrued or due (bb) Lessee's obligations regarding surrender of the Property including the removal of debris, and (cc) environmental liability as provided for in Article XIII (in) In the event the Property (excluding the Parking Facilities Retail Area) is Completely Destroyed at any time during the last Lease Year of the Lease Term (inclusive of any Renewal Term), and Lessee has not timely exercised any applicable option to extend the Lease Term for the next succeeding Renewal Term, if any, then either Party, in its sole discretion, shall have the right to terminate this Lease by giving wt itten notice to the other Party within ninety (90) days from the date the damage occurred In the event this Lease is terminated as provided herein, the Lessee shall, at the Lessee's sole cost and expense, (but using along with the Lessee's own funds, Net Insurance Proceeds available for that purpose) deliver possession of the Property to Lessor free and clear of all debris and Lessor and Lessee shall each be released thereby from any further obligations hereunder accnung after the effective date of such termination, except that such release shall not apply (aa) to any Rent or Additional Rent or other sums accrued or due (bb) Lessee's obligations regarding surrender of the Property including the removal of debris, and (cc) environmental habilrty as provided for in Article XIII Section 14 3 Performance of Restoration Work In the event Lessee undertakes any Restoration Work in accordance with the provisions of this Article, such Restoration Wolk by Lessee shall be performed as substantially as reasonably possible to the condition that existed mmediately prior to the damage, and shall be performed in accordance with the provisions of Article VI applicable to the construction of the initial Leasehold Impro\ements, to the extent reasonably possible, and subject to changes in Applicable Law, including, without lunitation, building codes Lessor hereby acknowledges and agrees that Lessee's obligations hereunder and the time periods set forth above are subject to Force Majeure, and reasonable extensions, including, without limitation, based on the severity of the damage, time required for adjustment of insurance proceeds, preparation of 33 construction drawings obtaining building permits, and the bidding out of the construction work and engagement of a general contiactoi Section 14 4 No Right to Terminate Except foi the Lessee's right to terminate this Lease in accordance with the provisions of Subsections 14 2(11)(b) and (ui), Lessee waives the provisions of any statute, code of judicial decision which grants Lessee the right to terminate this Lease in the event of damage or destruction of the Property Section 14 5 Lessee's Right to Terminate If Lessee or Lessor elects to exercise the option given under Subsections 14 2(u) or (in), iespectively, to terminate this Lease, then any and all Net Insurance Proceeds paid for damage or destruction of the Property shall be applied as follows (i) First toward debris removal, and (u) Second, the balance of the proceeds, if any, after payment of any Rent and/or Additional Rent due through the effective date of termination, shall be paid as follows (i) to Lessee to the extent such Net Insurance Proceeds are atti ibutable to damage to the Leasehold Improvements and to any trade fixtures, furnishings, equipment or other personal property of Lessee, and (u) to Lessoi to the extent such Insurance Proceeds ate attributable to damage to any buildings or structures on the Property constructed pnoi to the Possession Date (exclusive of damage to any Leasehold Impioveinents which Lessee shall have made to any such existing buildings or structures) Section 14 6 Payment for Construction of the Restoration Work To the extent this Lease is not terminated pursuant to the terms of Section 14 2, above, then Net Insurance Proceeds shall be applied by the Parties to the payment of the cost of the Restoration Work (pursuant to this Article and Section 9 3) to restore the Property (excluding the Parking Facilities Retail Area) The Net Insurance Proceeds shall be paid out, the Restoration Work shall be performed, and the Lessee shall make additional deposits with an escrow agent, if any are required, all in accordance with Section 9 3, as may be applicable Section 14 7 Collection of Insurance Proceeds The Lessor shall rn no event be responsible for the non -collection of any insurance proceeds under this Lease but only for insui ance money that shall come into its hands Section 14 8 Unused Insurance Proceeds and Deposits In the event that following the substantial completion of any Restoration Work, any Net Insurance Proceeds or sums deposited with an escrow agent or Lessoi in connection with the Restoration Work shall remain in the hands of an escrow agent or the Lessor, if the Parties have agreed to allow the Lessoi to hold the insurance proceeds until completion of the Restoration Work, and if the Lessee shall not then be in default under this Lease rn respect of any matter or thing of which notice of default has been served on the Lessee, following the expiration of any applicable cure penod following notice, then the remaining funds shall he applied first towards any unpaid Rent, and the balance paid to the Lessee, within thirty (30) days following the substantial completion of any such Restoration Work ARTICLE XV EMINENT DOMAIN Section 15 1 Total Condemnation In the event that all of the Property (or such portion thereof as shall, in the reasonable discretion of Lessor or Lessee, render it economically unfeasible to maintain m effect this Lease for its intended purpose) shall be taken foi any public purpose by the right of condemnation, the exercise of the power of eminent domain or shall be conveyed by the Lessoi and Lessee acting jointly to avoid proceedings of such taking, the Rent and money to be treated as Additional Rent pursuant to this Lease shall he prorated and paid by the Lessee to the Date of Taking or conveyance in lieu thereof, and this Lease shall terminate and become null and void as of the Date of Taking or such conveyance, and the amount of damages resulting to Lessor and Lessee, respectively, and to their respective interests in and to the Property, the Leasehold Impro\einents, and this Lease, taking into account the Agreed Allocation Principles (as such terra is defined below) shall be separately determined and computed by the court having jurisdiction and separate 34 awards and judgments with respect to damages to Lessor and Lessee, respectively, and to each of their respective interests, shall be made and entered , In the event that a court shall make a single Net Condemnation Award without separately determining the respective inteiests of Lessor and Lessee, and if Lessor and Lessee shall not agiee m writing as to then respective portions of an awaid within twenty (20) days after the date ot the final determination by the count of the amount of it, Lessor and Lessee agiee to submit the matter to the court on stipulation for the purpose of a judgment determinative of their respective shares, in accordance with the Agreed Allocation Principles In the event tor any reason the trial judge retuses to permit a determination by judgment, then the respective Intel ests of Lessor and Lessee shall be determined by arbitration under the pro\isions set forth in Section 16 6 of this Lease, on the basis of the following premises (the "Agreed Allocation Principles") the Lessor shall be entitled to receive the then value of its fee interest in the Property, assuming that such fee Interest shall be subject to this Lease (and all of the terms and conditions thereof), which a buyer willing but not obligated to buy, would pay therefore in an anus length transaction Lessee shall be entitled to the then value of its Leasehold Estate and the Leasehold Improvements, which a buyer willing but not obligated to buy, would pay therefore in an arin's length transaction In no event shall Lessee be entitled to compensation for any fee simple ownership interest in the Pioperty at the time of condemnation Section 15 2 Partial Condemnation (a) In the event less than all ot the Property shall be taken foi any public use or purpose by the right oi the exercise ot the power of eminent domain, or shall be conveyed by the Lessor and Lessee acting Jointly to avoid proceedings of such taking, and Lessee shall determine in its seasonable discietton that it is economically feasible to maintain in effect this Lease, then this Lease and all the covenants, conditions and pro\ isions hereunder shall be and remain in full force and effect as to all of the Property not so taken oi conveyed (except as provided in Section 15 5) Lessee shall to the extent the proceeds of the Net Condemnation Award are made available to it, pursuant to the terms hereof, remodel, repair and restore the Leasehold Improvements on the Property so that they shall be reasonably comparable to Leasehold Improvements on the Property pnor to the condemnation, taking into consideration the fact of the condemnation, provided, however, that in so doing, Lessee shall not be required to expend more than the amount of any Net Condemnation Award actually received by Lessee (b) The Net Condemnation Award allowed to Lessor and Lessee shall be paid to and received by the Parties ,s follows (I) There shall he paid to the Lessor the then value of the portion of the Property so taken, assuming that such portion at the Property shall be subject to this Lease (and all of the terms and conditions thereof), which a buyer willing but not obligated to buy, would pay theretore in en arms length transaction (II) 'There shall be paid to the Lessee the then value of the portion of the Leasehold Estate and the Leasehold Improvements so taken, which a buyer willing but not obligated to buy, would pay therefore in an arrn's length transaction, On) There shall be paid to the Lessee the amount required to complete the remodeling and repairs to the Property and the Leasehold Improvements thereon, required as a result of such taking, (iv) The Lessor and Lessee shall he paid portions of the balance of the Net Condemnation Award or awards, if any, which are allocable to and represented by the value of their iespective interest in the Property (consistent with the agreed allocation pnnciples set forth in subparts (i) through (ni), above), as found by the court in its condennation award In the event that a court shall make a single Net Condemnation Award without separately determining the respectne interests of Lessor and Lessee, and if Lessor and Lessee shall not agree in writing as to their respective portions of such award within twenty (20) days after the date of the final determination by the court of the amount of it, Lessor and Lessee agree to submit the matter to the court on stipulation for the purpose of a judgment determinative of then respective shares, in accordance with the premises set forth in subparts (i) through (tu), above In the event for any season the trial judge refuses to permit a determination by judgment, then the respective interests of Lessor and Lessee shall be determined by the arbitration provisions set forth under Section 16 6 of this Lease Section 15 3 Adjustment of Rent Upon Partial Taking In the event a part of the Property shall be taken for any public use or purpose by the exercise of 35 the power of eminent domain, or shall be conveyed by Lessor and Lessee acting tointly to avoid proceedings of such taking, then Rent, and money to be tieated as Additional Rent pursuant to this Lease shall be paid by Lessee to the Date of Taking or conveyance in lieu thereof, and after such date the Minimum Base Rent for the tennaindet ot the Property shall be reduced in the same proportion as the 'eduction in the Fair Market Rent as a consequenee of such taking, as determined in accordance with an appraisal conducted put ,uant to the procedures set forth in Section 4 3 2, above Section 15 4 Deposit of Condemnation Award with Escrow Agent Unless the effect of a condemnation proceeding shall be to terminate this Lease by operation of law of as piovided in Section 14 2 above, any Net Condemnation Awaid made in tespect to the Property in a condemnation pioceeding shall he deposited with an escrow agent selected by the Lessor and Lessee escrow agent) to he disbursed for the cost of restoring the Property and for other related purposes Section 15 5 Teniporary Taking In the event that all or any portion of the Property shall be taken by the right of condemnation or the exercise of the power of eminent domain for governmental use or occupancy for a temporary period, this Lease shall not terminate and Lessee shall continue to perform and observe all of its obligations (including the obligation to pay Rent as provided throughout this Lease) as though the temporary taking had not occurred except only to the extent that it may be prevented from so doing by the terms of the order of the authority which make the temporary taking of by die conditions resulting from the taking, including the loss of its possession of all or any part of the Pioperty In the event the taking foi governmental occupancy is for a period entuely within the teen of this Lease, then Lessee shall be entitled to receive the entire amount of any Net Condemnation Award made tor the taking, whether paid by way of damages, Rent of otherwise If the period of governmental occupancy extends beyond the termination of the Lease Term, the Lessor shall only be entitled to receive that portion of the Net Condemnation Award allocable to the period beyond the termination of the Lease Term The amount of any Net Condemnation Award payable to Lessee, on account of a tempoi any taking of all or any part of the Leasehold Improvements, shall be deemed a part of the Lessee's Leasehold Estate for all purposes in this Lease If the Net Condemnation Award does not separately determine the amount applicable to the taking of the interest of the Lessor in this Lease and to the Leasehold Improvements and if Lessor and Lessee shall not agree in writing as to the proportion of the award so applicable to the respective Parties, then Lessor and Lessee shall submit the matter to the court on stipulation for the purpose of a judgment determinative of the interest of the Parties in accordance with the terms of this Section 15 5 In the event for any reason the trial judge refuses to permit a determination by judgment, then the respective interests of Lessor and Lessee shall be determined by the arbitration ptovisrons set forth under Section 16 6 of this Lease ARTICLE XVI LESSEE DEFAULTS & LESSOR REMEDIES FOR DEFAULT Section 16 1 Lessee Default The occurrence of any one or more of the following events is deemed a "Lessee Default " (a) If the Lessee defaults in the due and punctual payment of any installment of Minimum Base Rent, Percentage Rent or any other sums requited to be paid hereunder as Additional Rent, as and when due and payable in accordance with this Lease, and such default continues for more than (10) ten days following receipt of written notice from Lessor, (b) Except with respect to an event of Force Majeure, periodic tenant vacancies, periodic repair and refurbishment to the Leasehold Improvements, periods of time required for insurance adjustments and reconstruction following casualty or partial taking, in the event Lessee shall cease to operate its business, unless pernutted by Lessor in connection with alterations or renovations, for a penod of thirty (30) consecutive days, (c) In the event a petition in bankruptcy uncle' any present or futuie bankruptcy laws (including but not limited to reorganization proceedings or voluntary insolvency tiling) be filed by or against Lessee and such petition is not dismissed within ninety (90) days from the filing thereof, or in the event Lessee is adjudged a bankrupt, (d) In the el. ent an Assignment for the benefit of creditors is made by Lessee, except as piovided in Section 11 3(a), (e) In the event of an appointment by any court ot a 1 eceivei or other court officer of Lessee's Property and such receivership is not dismissed within ninety (90) days from the date of such appointment, 36 (f) In the event Lessee removes, attempts to remove, or permits to be removed from the Property, except in the usual course of trade, the Leasehold Improvements (or any furnishings, fixtures, and equipment) installed or placed upon the Property by the Lessee during the Lease Term, (g) In the event Lessee, before the expiration of the terra of this Lease, and without the written consent of Lessor, vacates the Property or abandons the possession thereof (except with respect to an event of Force Majeure, and excluding periodic tenant vacancies, periodic repair and refurbishment to the Leasehold Improvements, periods of time required for insurance adjustments and reconstruction following casualty or partial taking), or uses the same for purposes other than the purposes for which the same are hereby leased, or ceases to use the Property for the purposes herein contained, (h) In the event Lessee does not accept the adjusted Minimum Base Rent determined by the independent appraiser established for the Renewal Term after the conclusion of any dispute resolution process related thereto (t) Subject to the nghts of a Leasehold Mortgagee, pursuant to Section 11 12, above, in the event an execution or other legal process is levied upon a material portion of the goods, furniture, effects or other personal property of Lessee brought on the Property, or upon the interest of Lessee in this Lease, and the same is not satisfied, dismissed or bonded within sixty (60) days from such levy, or (j) In the event Lessee defaults in the due performance or observance of any material covenant, condition or provision of this Lease and such default continues for more than sixty (60) days after written notice of the default from the Lessor to the Lessee, unless such default be one which cannot reasonably be cured within sixty (60) days and the Lessee within such sixty (60) day period shall have commenced and thereafter shall continue to diligently prosecute all actions necessary to cure such defaults, such failure shall constitute a Lessee Default Section 16 2 Remedies of Lessor (a) If any Lessee Default occurs, Lessor shall have the right after the expiration of the applicable cure periods set firth nr subsections (a) through (j) (each, a "Cure Period"), at the option of Lessor and subject to the rights of the Leasehold Mortgagee, to terminate this Lease upon providing fifteen (15) days written notice if the default has not been cured by the expiration of such fifteen (15) day period A I essee Default shall he deemed to have occurred if the default has not been cured by the expiration of such fifteen (15) day period Additionally, if any Lessee Default occurs, Lessor may, at its option, from time to time, without terminating this Lease, re-enter and re -let the Property, or any part thereof, as the agent and for the account of Lessee upon such terms and conditions as Lessor may deem advisable or satisfactory, in which r vent the rents received on such re -letting shall be applied first to the expenses of such re -letting and collection including but not binned to, necessary renovation and alterations of the Property, reasonable attorneys fees, any teal estate commissions paid, and thereafter toward payment of all sums due or to become due to Lessor hereunder, and if a sufficient sum shall not be thus realized or secured to pay such sums and other charges, at Lessor's option, Lessee shall pay Lessor any deficiency immediately upon demand therefore, notwithstanding that Lessor may have received periodic rental in excess of the penodie rental stipulated in this Lease in previous or subsequent rental periods, and Lessor may bring an action therefore as such deficiency shall arise Nothing herein, however, shall be construed to require Lessor to re-enter and re -let the Property in any event Lessor shall not, in any event, be required to pay Lessee any surplus of any sums received by Lessor on a re -letting of said Property in excess of the Rent provided in this Lease (b) If a Lessee Default occurs, Lessor shall have the right to obtain injunctive and declaratory relief, temporary and/or permanent, against Lessee or any acts, conduct of omissions of Lessee, and to further obtain specific performance of any term, covenant or condition of this Lease (e) If a Lessee Default occurs, I essor shall have the right, at its option, to declare the present value of the sum of all Rent (or any portion thereof) for the entire rernarmng Lease Tenn, and other indebtedness owing by Lessee to Lessor, if any (less the present value of the Fair Market Rent foi the Property, determined as provided in Section 41 2, above, for the remaining Lease Term) immediately due and payable without regard to whether possession of the Property shall have been surrendered to or taken by Lessor, and niay commence action immediately thereupon and recover judgment therefore (d) If Lessee Default occurs, Lessor, in addition to other rights and remedies it may have, shall have the right to remove all or any part of Lessee's personal property from the Property and any personal property removed may be stored in any public warehouse or elsewhere at the cost of, and for the account of L essee, and Lessor shall not be responsible for the car e or safekeeping thereof whether in 37 transport, storage or otherwise, and Lessee hereby waives any and all claim against Lessor for loss, destruction and/or damage or injury which may be occasioned by any of the aforesaid acts (e) No such re-entry or taking possession of the Property by Lessor shall be construed as an election on Lessor's part to terminate this Lease unless a written notice of such intention is given to Lessee Notwithstanding any such ie-letting without termination, Lessor may at all times thereafter elect to terminate this Lease for such pievious Lessee Default Any such re-entry shall be allowed by Lessee without hrndiance, and Lessor shall not be liable in damages for any such re-entry, oi guilty of trespass or forcible entry (1) Any Rent which may be due Lessor, whether by acceleration or otherwise as herein prof ided in this Article, shall include Minimum Base Rent, Percentage Rent and any other rents, costs and expenses denominated as Additional Rent in this Lease (g) It is expressly agreed that the forbearance on the part of Lessor in the institution of any suit or entry of judgment for any part of the Rent herein reserved to Lessor, shall not serve as a defense against nor prejudice a subsequent action for such Rent Lessee hereby expressly waives Lessee's right to claim a merger or waiver of such subsequent action in any previous suit or rn the judgement entered therein Furthermore, it is expressly agreed that claims for liquidated Minimum Base Rent and/or Percentage Rent may be regarded by Lessor, if it so elects, as separate and independent clauns capable of being separately assigned (11) Any and all rights, remedies and options given in this Lease to Lessor shall be cumulative and in addition to and without waiver of, or in derogation of, any right or remedy given to it under any laws now or hereafter in effect Section 16 3 No Waiver by Lessor The wan er (either expressed or implied by law) by Lessor of any default of any term, condition or covenant herein contained shall not he a waiver of any subsequent default of the same or any other term, condition or covenant herein contained The consent or approval by Lessor to or of any act by Lessee requiring Lessor's consent or approval shall not be deemed to waive or render unnecessary Lessor's consent to or approval of any subsequent similar act by Lessee No re-entry hereunder shall bar the recovery of rents or damages for the default or delay on the part of Lessor to enfbree any right hereunder and shall not be deemed a waiver of any preceding default by Lessee of any term, covenant or condition of this Lease, or a waiver of the right of Lessor to annul this Lease or to re-enter the Property or to re -let same Section 16 4 Late Payments In the event any payment due Lessor under this Lease shall not be paid on the due date, Lessee agrees to pay, in addition to the payment then due, one-half (0 5%) percent of the amount due or the sum of One Hundied Dollars (S100), whichever is greater, for each day that the payment is late, ("Late Fee"), and in the event that any check, bank draft, order for payment of negotiable instrument given to Lessor for any payment under Lease shall be dishonored for any reason whatsoever not attributable to Lessor, Lessor, in addition to the Late Fee, shall he entitled to make an administrative charge to Lessee of One Hundied and 0 100 Dollars ($100 00), or the actual charge, to Lessor by Lessor's bank for dealing with such dishonored tender, whichever is greater In the event that it shall be necessary for Lessor to give mote than one (1) written notice to Lessee of any violation of this Lease, during the term hereof, Lessor shall be entitled to make an administrative charge to Lessee of One Hundred and 0/100 Dollars ($100 00) for each such subsequent notice after the first notice Lessee recognizes and agrees that the charges which Lessor is entitled to make upon the conditions stated in this section represent, at the time this Lease is made, a fair and reasonable estimate and liquidation of the costs of Lessor in the administration of the Property resulting from the events described which costs are not contemplated or included in any Rent, or other charges provided to be paid by Lessee to Lessor rn this Lease Any charges becoming due under this Section of this Lease shall he added to and become due with the late payment for which the charge was assessed and shall be collectible as a part t iereof Section 16 5 Remedies Curnulative No remedy conferrer{ upon or reserved to the Lessor oi the Lessee shall be considered exclusive of any other remedy, but shall be cumulative and shall be in addition to every other remedy given under this Lease of existing at law or in equity or by statute, and every power and remedy given by this Lease to the Lessor or the Lessee may be exercised from time to time and as often as occasion may anse or as may be deemed expedient by the Lessor or the Lessee No delay or omission of Lessor or Lessee to exercise any right or power arising from any default shall impair any right or power, nor shall it be construed to be a waiver of any default or any acquiescence m it 38 Section 16 6 Aibitration (a) Request to Arbitrate The Parties hereby agree that, subject to the consent of the City Manager and the Lessee which consent may be withheld by either party for any reason, any dispute, disagreement or controversy at Bing under this Lease, or with respect to the interpretation or enforcement of this Lease inay he settled by arbitration Either Party may request to arbitrate by providing written notice to the other Party setting forth the nature of the request to arbitrate Within fifteen (15) days of receipt of such request to aibitrate, the other Party shall respond as to its agreement or disagieement to arbitrate Failure of the other Party to iespond shall be deemed denial of a request to arbitrate (b) Procedures In the event arbitration is agreed to, the following procedures will govern any arbitration according to this Lease (1) Within ten (10) days of the Parties agreeing to arbitrate, each party Shall designate an arbitrator (n) Within ten (10) days after the appointment of the two arbitrators, the two arbitrators shall meet and appoint a third arbitrator which shall constitute the Arbitration Panel (ni) Every member of the Arbitration Panel must be a member of the American Arbitiation Association ("Member") In addition to the foregoing criteiton, each Member shall satisfy the following conditions (i) no Member shall be a person who is or has been an employee of eithei the Lessor oi Lessee during the five (5) year period immediately preceding his or her appointment, (n) each Member shall be neutral and independent at the Parties to this Lease, (iu) no Member shall be affiliated with either Parties' auditors, and (iv) no Member shall ha e a conflict of interest with (including, without limitation, any bias towards oi against) a Party hereto (iv) If either patty shall fail to designate a Member within ten (10) days after receipt of the written notice from the other party, then such other party may request the President of the Florida Chapter of the American Arbitration Association to designate a Member, who, when so designated, shall act in the same manner as if he had been the Member designated by the party so failing to designate an arbitrator (v) If the two Members appointed by the Parties are unable to agree upon the third Member within ten (10) days from the last date of designation, then upon the request of either of the two (2) Members, of either Party, such third Member shall be designated by the President of the Florida Chapter of the American Arbitration Association, who shall appoint such third Member within ten (10) days of the request (vi) A hearing shall be commenced within thirty (30) days following the selection of the Arbitration Panel The Parties shall each snake a good faith effort to cooperate with each other in all respects in connection with the exchange of docuinents relevant to the subject dispute A court reportei shall make a transcript of the hearing The Parties and the Arbitration Panel shall use their best efforts to conclude the hearing within ten (10) days The Parties shall be entitled to such pre-trial discovery as they may agree, or as determined by the Arbitration Panel The Arbitration Panel shall have the right to question witnesses at the hearing, but not to call witnesses The Arbitration Panel may grant continuances only by the agreement of both Parties The Arbitration Panel may render a decision at the close of the hearing, or may request briefs on any or all issues Any and all such briefs, including reply briefs, shall be filed with the terms and on the schedule set by the Arbitration Panel, but in any event no later than forty- five (45) days following the commencement of the hearing The Arbitration Panel shall render a determination within thirty (30) days from the conclusion of the heanng, and in the event briefs are submitted, within thirty (30) days after receipt of said brief\ If no determination is rendered within such time, unless the Parties agree otherwise, a new Arbitration Panel shall be selected as described above, but the new Arbitiation Panel shall render a determination solely upon review of the record of the hearing w ithout a further hearing (vii) All actions, hearings and decisions of the Arbitration Panel shall be conducted, based upon and in accordance with the Commercial Arbitration Rules of the American Arbitiation Association In deterin ning any matter before them, the Arbitration Panel shall apply the terms of this Lease, and shall not have the power to vary, modify or reform any terms or provisions of the Lease in any respect No Arbitrator is authorized to make an awaid of punitive or exemplary damages The Arbitration Panel shall afford a hearing to the Lessoi and to the Lessee who shall each have the fight to be reptesented by counsel at such hearing and to call witnesses, and the right to submit evidence with the privilege of cross-examination on the question at issue All arbitration hearings shall be held at a place designated by the Arbitration Panel in Miami -Dade County, Florida 39 (viii) The Arbitration Panel selected hereunder shall agree to observe the Code of Ethics for Arbitrators in Commercial Disputes promulgated by the American Arbitration Association and the American Bar Association, or any successor code The decision of a majority with respect to any matter iefened to it under this Lease shall be final, binding and conclusive on the Lessor and Lessee and enforceable in any court of competent jurisdiction Togethet with the determination, the Arbitration Panel shall provide a mitten explanation of the basis for the determination Each party shall pay the fees and expenses of the Member of the Arbitration Panel designated by such party, such party's counsel and witness fees, and one-half ('/) of all expenses of the third Member of the Arbitration Panel The decision of the Arbitration Panel will be final, and may be enforced according to the laws of the State of Florida and judgment upon the award rendered by the Arbitration Panel shall be entered in any Court having jurisdiction thereof ARTICLE XVII ACCESS BY LESSOR Section 17 1 Right of Entry Lessor and Lessor's agents shall have the sight to enter the Property at all reasonable nines upon not less than twenty-four hours piior notice to the Lessee (except in the case of an emergency when no notice is requited), to examine the same Lessee shall have the tight to designate a representative of Lessee to accompany Lessor during any such entry upon the Property It Lessee shall not be personally present to open and permit entry into the Property at any tune when in the event of an emergency, an entry therein shall be necessary, Lessor or Lessor's agents may enter the same without in any manner affecting the obligations and covenants of this Lease Nothing herein contained, however, shall be deemed or construed to impose upon Lessor any obligation, responsibility or liability whatsoever, for the care, maintenance or repair of the Property oi any part thereof, except as otherwise herein specifically provided ARTICLE XVIII DAMAGE TO LESSEE'S PROPERTY Section 18 1 Loss and Damage Lessor shall not be responsible for any damage to any property of Lessee (including without limitation appliances, equipment, machinery, stock, inventory, fixtures, furniture, improvements, displays, decorations, carpeting and painting), or of others located on the Property, nor for the loss of or damage to any property of Lessee, or of others by theft or otherwise, except as resulting from the actions of Lessor or I essor's agents, employees, or representatives Lessor shall not be liable for any injury or damage to persons or property resulting tiom fire, smoke, explosion, falling plaster, steam, gas, electricity, water, ram, or leaks from any part of the Property or from the pipes, appliances or plumbing works or from the toof, street or subsurface or from any other place by dampness of by any other cause of whatsoever nature Lessor shall not be liable for any latent defect in the Property All property of Lessee kept or stored on the Property shall be so kept oi stored at the risk of Lessee only and Lessee shall hold Lessor harmless from any and all claims arising out of damage to same, including subrogation claims by Lessee's insurance carriers, except as resulting from the actions of Lessor or Lessor's agents, employees, or representatives ARTICLE XIX HOLDING OVER, SUCCESSORS Section 19 1 Holding Over In the event Lessee remains in possession of the Property after the expiration of the Lease Term, Lessee, at the option of Lessor, shall be deemed to be occupying the Property as a Lessee at sufferance at a monthly rental equal to two (2) times the Minimum Base Rent and the Percentage Rent, payable during the last month of the Lease Tenn hereof In addition, Lessee agrees to pay monthly (a) one -twelfth (1/12) of the ad valorem taxes f r the Property based upon the total ad valorem taxes payable for the Lease Year immediately prior to the Lease Year in which the expiration occurs, (b) the monthly premium cost of insurance for which Lessee would have been responsible if this Lease had been renewed on the same terms contained herein, (c) all sales taxes assessed against such increased rent, and (d) any and all Additional Rent otherwise payable by Lessee hereunder attributable to the period of such holdover Such tenancy shall be subject to all the other conditions, provisions and obligations of this Lease Lessee's obligation to pay any tents or sums provided in this Lease shall survive the expiration or earlier termination of this Lease Section 19 2 Successors All rights and liabilities herein given to, or rnmposed upon, the respective Parties hereto shall 40 extend to and bind the several respective heirs, executors, administrators, successors, and the assigns of the said Parties, and if there shall be mote than one Lessee, they shall be bound jointly and severally by the terms, covenants and agreements herein Nothing contained in this Lease shall in any manner restrict Lessor's right to assign or encumber this Lease and, in the event Lessor sells its interest in the Property and the purchaser assumes Lessor's obligations and covenants, Lessoi shall thereupon be relieved of all further obligations hereunder ARTICLE XX EQUAL OPPORTUNITY & NON-DISCRIMINATION Section 20 1 Equal Employment Opportunities The Lessee agrees that during the Lease Term, (a) it will not discriminate against any employee or applicant for employment because of race, creed, color, place of birth, religion, national origin, sex, age, marital status, veteran and disability status and will take affirmative action to assure that applicants are employed and that employees are treated during employment without regard to race, creed, color, place of birth, religion, national origin, sex, age, marital status, veteran and disability status, (b) post in conspicuous places, available to employees and applicants tor employment, notices, the form of which is to be provided by the Lessor, setting forth provisions for this nondiscrimination clause, (c) in all solicitations of advertisements for employees placed by or on behalf of the Lessee shall state that all qualified applicants will receive consideration for employment without regard to race, creed color or national origin, and (d) if applicable, to send to each labor union or representative of workers with which the construction contractor has a collective bargaining agreement or other contract or understanding a notice, the forth of which is to be provided by the Lessor, advising the union or representative of the Lessee's commitment and posting copies ot'the notice in a conspicuous places mailable to employees and applicants for employment Section 20 2 Non -Discrimination Lessee represe its and warrants to the Lessor that it will comply with Sections 18-188 through 18- 190 of the Code of the City of Miami Code, as amended, and incorporated herein by reference ("Code") Lessee hereby represents and warrants that it does not and will not engage in discriminatory practices and shall not discrnnnnate in connection with Lessee's use of the Property on account of race, national origin, ancestry, color, sex, religion, age, handicap, familial status, marital status or sexual orientation Furthermore, should the Lessee have existing or introduce membership Hiles for patrons at the Property that it will comply with the non-diserimination provisions incorporated within the Code ARTICLE XXI MISCELLANEOUS Section 21 1 Accord and Satisfaction No payment by Lessee or receipt by Lessor of a lesser amount than the Rent herein stipulated to be paid shall be deemed to be other than on account of the earliest stipulated Rent, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as rent be deemed an accord and satisfaction, and Lessoi may accept such check or payment without prejudice to Lessor's right to recover the balance of such Rent of pursue any other remedy provided herein or by law Section 21 2 Entire Agreement, Amendments, Resolution of Conflicts (a) This Lease, the REP, the Proposal, and the Exhibits attached hereto and funning a part thereof as if fully set forth herein constitute all of the covenants, prornrses, agreements, conditions and understandings between Lessor and Lessee concerning the Property and there are no covenants, promises, conditions or understandings, either oral or written, between them other than as are herein set forth Neither Lessor nor Lessor's agents have made nor shall be bound to any representations with respect to the Property except as herein expressly set forth, and all representations, either oral or written, shall be deemed to be merged into this Lease No course of prior or future dealings between the Parties or their officers, employees, agents or affiliates shall be relevant or admissible to supplement, explain or vary any ot the terms of this Lease Acceptance of, or acquiescence in, a course of performance rendered under this or any prior agreement between the Parties or their affiliates shall not be relevant or admissible to determine the meaning ot any of the terms of this Lease This Lease has been negotiated "at arm's length" by and between Lessor and Lessee, each having the opportunity to be represented by legal counsel of its choice and to negotiate the form and substance of this Lease, and therefore in construing the provisions ot this Lease neither party will be deemed disproportionately responsible for draftsmanship (b) Except as herein otherwise provided, the Parties may only amend, alter, change, or 41 modify this Lease by execution of written instrument signed by the Parties (c) If a conflict, error, ambiguity, or discrepancy atises between the provisions of this Lease, the Proposal and the RFP then the in resolving any matter between the provisions thereof (except where such an interpretation would result in a violation of Applicable Law) the provisions of this Lease shall take precedence over either the Proposal or RFP and the provisions of the RFP shall take precedence over the Pr oposal Section 21 3 Independent Parties It is understood and agreed by the Parties hereto that this Lease does not create a fiduciary or other relationship between Lessor and Lessee, other than Lessor and Lessee or contracting parties, as applicable Lessor and Lessee are and shall be independent contracting parties and nothing in this Lease are intended to snake either Party a general or special agent, Joint venturer, partner or employee of the other for any purpose Section 21 4 Notices Any notice by the Parties required to be given must he served by certified mail return receipt requested, or by hand delivery, addressed to Lessor or Lessee at If to Lessor at: City Manager City of Miann 444 SW 2nd Avenue, 10a Floor Miami, Floridr 33130 With a copy to C ity Attorney Office of City Attorney 444 SW 2nd Avenue, 9th Floor Miami, Florida 33130 City of Miami Dept of Public Facilities Asset Management Division 444 SW 2nd Avenue, Suite 125 Miami, Florida 33130 If to Lessee at: Grove Bay Investment Group, LLC 2950 SW 27 Avenue Miami, Florida 33133 With a copy to Holland & Knight LLP Attn Richard A Perez 701 Brnckell Avenue, Suite 3000 Miami, Florida 31131 All notices given hereunder shall be effective and deemed to have been given upon receipt by the party to which notice is being given, said receipt being deemed to have occurred upon hand delivery or posting, or upon such date as the postal authorities shall show the notice to have been delivered, rehtsed, or undeliverable, is evidenced by the return receipt or proof of deliver Notwithstanding any other provision hereof, Lessor shall also have the right to give notice to Lessee in any other manner provided by law If theie shall be more than one I essee, any notice requited or permitted by the terms of this Lease may he given by or to any one thereof, and shall have the sane force and effect as if given to all thereof Section 21 5 Captions and Section Numbers The captions ection numbers, and article numbers appearing in this Lease are inserted only as a matter of convenience and in no way define, limit, construe, or describe the scope or intent of such sections or articles of this I ease nor in any way affect this Lease Section 21 6 Partial Invalidity It any term, covenant or condition of this Lease or the application theteof to any person or circumstances shall, to any extent, be invalid or unenforceable the remainder of this Lease, the application of such term, covenant or condition to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby and each term, covenant or condition of this Lease shall be valid and enforceable to the fullest extent petinitted by law Section 21 7 Estoppel Certificate Lessee agrees that it will, at any time and from time to time, within ten (10) Business days 42 following written notice by Lessor specifying that it is given putsuant to this Section, execute, acknowledge and deliver to Lessor a statement In writing certifying that this Lease is unmodified and in full force and effect (or if there have been modifications, that the same is in full force and effect and stating the modifications), and the date to which the Minimum Base Rent, Percentage Rent and any other payments due hereunder horn Lessee have been paid in advance, if any, and stating whether or not there are defenses or offsets claimed by Lessee and whether or not to the best knowledge of Lessee, Lessor is in default in performance of any, covenant, agreement or condition contained in this Lease, and if so, specifying each such default of which Lessee may have knowledge The failure of Lessee to execute, acknowledge and deliver to Lessoi a statement in accordance with the provisions of this Section within said ten (10) Business day period shall constitute Lessee Default hereunder and shall also constitute an acknowledgment by I essee, which may be relied on by any person holding or proposing to acquire an interest m the Property or any part thereof or this I ease from or through the other party, that this I ease is unmodified and in full force and effect and that such rents have been duly and hilly paid to and including the respective due dates immediately preceding the date of such notice and shall constitute, as to any person entitled as aforesaid to rely upon such statement, a waiver of any defaults which may exist prior to the date of such notice It is agreed that nothing contained in the provisions of this Section shall constitute waiver by Lessor of any default in payment of Rent of other charges existing as of the date ot such notice and, unless expressly consented to in writing by Lessor and, Lessee shall still remain liable for the same Lessor agrees that it will, at any time and from time to time, within fifteen (15) Business days following written notice by Lessee specifying that it is given pursuant to this Section, execute, acknowledge and deliver to Lessee or any lender providing financing to Lessee, a statement in writing certifying that this Lease is unmodified and in full force and effect (or if there have been modifications, that the same is in full force and effect and stating the modifications), and the date to which the Minimum Base Rent, Percentage Rent and any other payments due hereunder from Lessee have been paid in advance, if any, and stating whether or not there are defenses or offsets claimed by Lessor and whether or not to the best knowledge of Lessor, Lessee is in default in performance of any, covenant, agreement or condition contained in this Lease, and if so, specifying each such default of which Lessor may have knowledge The failure of Lessor to execute, acknowledge and deliver to Lessoi a statement in accordance with the provisions of this Section within said thirty (30) Business Day period shall constitute an acknowledgment by Lessor, which may be relied on by any person holding or proposing to acquire an interest in the Property, including, without limitation, any leasehold mortgage upon the Leasehold Estate, or any part thereof or this Lease from or through the other party, that this Lease is unmodified and in full force and effect and that such tents have been duly and fully paid to and including the respective due dates immediately preceding the date of such notice and shall constitute, as to any person entitled as aforesaid to rely upon such statement, a waiver of any defaults which may exist prior to the date of such notice Section 2I 9 Waiver Failure on the part of either Party to complain of any action or non -action on the part of the other, no matter how long the same may continue, shall never be deemed to be a waiver by such party of any ot its rights hereunder Further, it is covenanted and agreed that no waiver at any tune of any of the pro\ isions hereof by either party shall be construed as a waiver of any of the other provisions hereof, and that a waiver at any tune of any of the provisions hereof shall not be construed as a waiver at any subsequent tune of the same provisions The consent or approval to or of any action by either party requinng such consent or approval shall not be deemed to waive or render unnecessary such consent or approval to or of any subsequent similar act by such party Section 21 10 Time is of the Essence Time is of the essence with respect to the perthnnance of every provision of this Lease in which tune of performance is a factor Section 21 11 Governing Law It is the intent of the Parties hereto that all questions with respect to the construction of the Lease and the rights and the liabilities of the Parties hereto shall be determined in accordance with the laws of Florida and that all disputes arising hereunder shall be heard and decided in Miami -Dade County, Florida Section 21 12 Waiver of Counterclaims Lessee shall not impose any counterclaim or counterclaims for damages (except for compulsory counterclaims) in a summary proceeding or other action based on ternunation or holdover, it being the intent of the Parties hereto that Lessee is strictly limited in such instances to bringing a separate action in the court of appropriate jurisdiction The foregoing waiver is a material inducement to Lessor making, 43 executing and deli~ enng this Lease and Lessee's watvet of its tight to counterclaim (except for compulsory counteie1aims) m any summaiy proceeding or other action based on termination or holdover is done so knowingly, intelligently and voluntarily Section 21 11 Waiver of Jury Tual Lessor and Lessee hereby waive trial by jury in any action, proceeding or counteiclaun brought by either of the Parties hereto against the other on, oi in respect of, any matter whatsoever arising out of or in any way connected with this Lease, the relationship of Lessor and Lessee hereunder, Lessee's use or occupancy of the Lease Property and/or any claim of injury or damage Section 21 14 Quiet Enjoyment Upon the observance by the Lessee hereunder of all the teens, provisions, covenants and conditions unposed upon the Lessee, the Lessor covenants to the Lessee that the Lessee shall peaceably and quietly hold, occupy and enioy the Property for the Lease Term without any interruption, disturbance or hindrance by the Lessor, its successors and assigns, or by persons claiming by, through or under the Lessor for the Property leased herein, or by persons with title superior to the Lessor, its successors and assigns Section 21 15 Surrender of Possession Upon the expiration or earlier termination of the Lease pursuant to the provisions hereof, the Lessee shall deliver to the Lessoi possession of the Property in good repair and condition, reasonable wear and tear excepted Section 21 16 Joint and Several Liability If two or more individuals, corporations, partnerships oi other business associations (or any combination of two or more thereof) shall sign this Lease as Lessee, or by virtue of a Transfer assume the rights and obligations of the Lessee hereunder, the liability of each such individuals, corporations, partnerships or other business associations (or any combination of two or more thereof) to pay Rent and perform all other obligations hereunder shall be deemed to be joint and several, and all notices, payments and agreements given or made by, with or to any one of such individuals, corporations, partnerships or other business associations (or any combination of two or more thereof) shall be deemed to have been given or made by, with or all of them Section 21 17 Third Party Beneficiary Nothing contained in this Lease shall be construed so as to confer upon any other party the nghts of the d party beneficiary Section 21 18 Radon 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 tnforination regarding Radon and Radon testing may be obtained from your county public health unit Section 21 19 No Liability for Act of other Party Lessee shall not sign any contract, application for any license or permit or do anything that may result in liability to the Lessor for any indebtedness or obligation of Lessee, unless expressly provided herein or approved in writing by the Lessor Except as expressly authonzed in writing, neither Lessor nor Lessee shall make any express or implied agreement, warranties, guarantees or representations or incur any debt, or represent that their relationship is other than Lessor and Lessee, unless otherwise agreed to herein for the management and operation of the Property and neither Lessor nor Lessee shall he obligated by or have any liability under any agreements or representations made by the other that are not expressly authorized as aforesaid Lessor reserves the right, at its sole option, to refuse an agreement for any Federal, State or local grants and loans when the acceptance of same by either Lessor or Lessee may impose a hardship upon Lessor or include obligations which extend beyond the Lease Term Section 21 20 Rights, Privileges and Immunities Covenants The Lessee shall have, and the Lessoi shall fully cooperate in providing to the Lessee, for its use and enjoyment, all rights, privileges and immunities as shall from time to time be granted or afforded by Federal, State of local law to restaurant operators or proprietors and operators and proprietors of uses comparable to those included among the Permitted Uses The Patties agree that each of the tennis, covenants and conditions hereof agreed to be observed or performed by each party shall constitute concurrent conditions of exchange Section 21 21 City of Miami Hiring Lessee agrees that a minimum of fifteen percent (15%) of the contract value for the construction of the Leasehold Improvements will be performed by an entity then certified by Miami -Dade County as a 44 Community Small Business Enterprise. Lessee anticipates that the marina and restaurant operations at the Property will generate approximately 200 full time equivalent jobs upon stabilization. Lessee agrees to work with South Florida Work Force and the City's Economic Initiatives and Access Programs to advertise all of the Lessee's entry level positions. Commencing as of the date that the Leasehold Improvements are completed, Lessee agrees to use good faith efforts to ensure that at least sixty percent (60%) of its employees are City of Miami residents. The calculation of employees will be based on the total payroll of the Lessee, including operational and administrative staff. After the third anniversary of the completion of the Leasehold Improvements, the commitment set forth above will be reduced to forty (40) percent. The foregoing requirements shall not apply to Sublessees. Section 21.22 Charitable Contribution Lessee shall make an annual charitable contribution of thirty thousand dollars ($30,000) every year of the Lease Term to help fund a charitable hospitality -related organization selected by Lessee in consultation with the City Manager. [signature page follows] 45 IN WITNESS WHEREOF, Lessor and Lessee have executed this Lease, or have caused the same to be executed, as of the date and year first above written. LESSOR: CITY OF MIAMI, a municipal corporation of the State of Florida By: ATTEST; By: Todd Hannon City Clerk Johnny Martinez City Manager APPROVED AS TO INSURANCE APPROVED AS TO FORM AND REQUIREMENTS: CORRECTNESS: By: By: Calvin Ellis, Director Risk Management Department GROUP, company ATTES ame L S fi ✓ nt t-- (%F,r ((a 41,40Ae.lQa, Title VAL. F4e,61Pin-R, rte ;.'w Compan arne— - i Name f 6JCi-I6C' Title Hee'Vel, Gt,•era en? Company Name 46 Julie O. Bru City Attorney LESSEE: By: GROVE BAY INVESTMENT LLC, aRiTalimited liab' By: _ r:•; _ �R Print Nam 72J (2')0: 0 Title CORPORATE SEAL EXHIBIT "A" SCHEDULE OF LEASEHOLD IMPROVEMENTS* Minimum Marina Renovations • Complete interior/exterior restoration of the two (2) hangar buildings to afford best utilization of available space for dry rack storage and other uses • Constnietion/returbishment of visually appealing concrete pavement design and construction of marina/boatyard to meet appropnate vehicles and loads to result from proposed marina use • Complete dock/bulkhead restoration or replacement alongside marina in a manner homogeneous in appearance with the restoration of the adjoining bulkhead for the casual and formal restaurant portions of the Property Minimum Casual Restaurant Renovations • Installation of outdoor covering to facilitate patio use • Installation of air conditioning within the enclosed areas • Complete renovation of restaurant according to federal, state and local regulations and code requirements • Complete dock/bulkhead restoration of replacement alongside casual restaurant in a manner homogeneous m appearance with the restoration of the adjoining bulkhead for the marina and formal restaurant portions of the Property • All applicable ADA requnements and improvements Minimum Formal Restaurant Renovations • Complete remodeling of the interior to reflect the appearance of modern restaurants • Complete ri novation of restaurant in compliance with all applicable federal, state and local regulations • Structural modifications to windows so as to provide full height windows to improve waterfront visibility • Repair of entire dock/bulkhead alongside formal restaurant in a manner homogeneous in appearance with the restoration of the adjoining bulkhead for the manna/casual restaurant portions of the Property • All applicable ADA improvements Dock Renovations • Constriction of a fixed dock in front of formal restaurant portion of Property, • Renovation of finger pier at casual restaurant Garage Retail • Build -out of Parking Facilities Retail Area to be provided by City *The Leasehold Impioveinents set forth in the Proposal, to the extent inconsistent with the description set forth herein, shall supersede the descriptions set forth in this Exhibit A 47 EXHIBIT "B" GRAY SHELL STANDARDS 1 Continuous smooth, clean, level completed concrete floor, ready to receive finishes 2 Demising walls Ni ill be toll height metal stud, 3 5/8" 20 ge 24" oc 3 Storefront will have eight (8) aluminum frame glass entrance doors, evenly spaced, located as Lessee shall specify, with hardware installed, and stoiefront shall have laminated safety glass window fronts 4 Lrteiioi of exterior walls and interior of demising walls will be finished with code compliant drywall, sanded, and ready foi paint 5 No interior walls are provided 6 Eight (8) Rear service door, evenly spaced, located as Lessee shall specify, with hardware installed Plumbing a Water and sewer stubbed to meter room location to be agreed upon by lessor and lessee during the design process , with water meter Lessee shall be responsible for distribution b Fire sprinkler system installed throughout, including risers, but without drops 9 Electrical a 200 amp, 3-Phase electrical, stubbed to panel in rnetei room location specified by Lessee and lessor during the design phase, with electrical meter b One (1) exit/emeigeney light fixture or as shown on plan c Conduit and box for exterior tenant signage or as shown on plan 48 COMPOSITE EXHIBIT "CI" PROPERTY LEGAL DESCRIPTION (PARCEL 1) (MARINABOATYARD UPLANDS) A portion of Tract A of Dinner Key, aceordmg to the plat thereof as recorded in plat book 34, at page 2, of the Public Records of Miami Dade County, Florida and a portion of Section 22, Township 54 South, Range 41 East, Miami -Dade County, Florida, mote particularly described as follows Commence at the Southwest corner, of the Northwest '/a, of said Section 22, Thence South 02°24'44" East, along the Southerly extension of the West line of the NW 1/4 of said Section 22, for 436 51 feet, Thence North 86°27'43" East for 75 86 feet to a point labeled HL-78-C said point being a point of intersection with the U S Pier -Head Bulkhead line of 1939 as recorded in Plat Book 74, at Page 3, of the Public Records of Miami -Dade County, Florida, said line also being the Northwesterly line of T II F Deed No 19448 to City of Miami, recorded in Deed Book 3130, at Page 260, of the Public Records of Miami -Dade County, Florida, Thence along said TT 5 Pier -Head Bulkhead line, for the following described four (4) courses, 1) Thence South 77°01' 17" East, for 669 48 feet to a point Labeled HL-78-B, 2) Thence North 74°08' 10" East for 526 25 feet to a point labeled HL-78-A, 3) Thence North 43°08'20" East for 250 00 feet, 4) Thence North 12°08' 10" East for 88 25 feet, Thence North 45°44'46" West, departing the previously described line, for 3 75 feet to a point on the outside face of an existing Seawall, Thence along the outside face of said seawall for the following described twelve (12 ) courses, 1) Thence continue North 45°44'46" West for 12 58 feet, 2) Thence North 46°50'16" West for 262 72 feet to the Point of Beginning of the hereinafter described parcel, 3) Thence North 47'06'49" West for 73 59 feet, 4) Thence North 02°02'56" East for 0 70 feet, 5) Thence North 47°07'52" West tor 59 52 feet, 6) Thence North 43°12'49" East foi 100 72 feet, 7) Thence South 46°47'08" East for 61 00 feet, 8) Thence North 88°45'00" East for 0 64 feet, 9) Thence South 47° 14'37" East tor 41 99 feet, 10) Thence North 61 °42'01" East for 21 07 feet, 11) Thence South 30° 14'35" East for 2 75 feet, 12) Thence North 62°06'03" East for 5 43 feet to a point of intersection with the Southerly extension of an existing chain link fence, Thence along said chain link fence and its southerly extension for the following described three (3) courses, 1) Thence North 49°34'23" West for 26 67 feet, 2) Thence South 49°46'1 l" West for 14 07 feet, 3) Thence North 46°34'27" West for 48 90 feet to a point of intersection with the Southeasterly extension of the edge of an existing concrete slab, Thence along the previously described edge of concrete and its Southwesterly and Northerly extensions for the following descried the (5) courses, I) Thence North 41°51'16" East for 19 89 feet, 2) Thence North 45°40'17" West foi 20 02 feet, 3) Thence North 41°51'16" East tier 10 30 feet, 4) Thence North 48°08'44" West for 26 07 feet, 5)Thence North 43°17'10" East for 63 60 feet to a point of intersection with the Boundary line of the tract of'land described under Exhibit A m that certain Lease Agreement recorded to Official Records Book 9916, at Page 1110, of the Public Records of Miami Dade County, Flonde Thence along the previously described Boundary line, and its Northerly extension, for the following described two (2) courses, 1) Thence North 76°17'34" West tor 63 38 feet, 2) Thence North 12°55'28" East for 138 99 feet to a point of intersection with the back of an existing concrete sidewalk, Thence along the back of said concrete sidewalk, for the following descnbed twenty one (21) courses, 1) Thence North 47°44'58" West for 12 22 feet to a point of curvat ire of a circular curve concave to the Northeast, 2) Thence Northwesterly, along the arc of said curve to the right, having a radius of 98 00 feet and a central angle of 16°31'40" for a distance of 28 27 feet to the point of tangency, 3) Thence North 3 1 ° 13' 18" West foi 14 48 feet to a point of curvature of a circular curve concave to the Southwest, 4) Thence Northwesterly, along the arc of said curve to the left, having a radius of 100 00 feet and a central angle of 11°38'35" for a distance of 20 32 feet to a point of tangency, 5) Thence North 42°51'53" West for 5 10 feet to a point of curvature of a circular curve concave to the Southwest, 6) Thence Northwesterly, along the arc of said curve to the left, having a radius of 33 00 feet and a central angle of 33°27'08" for a distance of 19 27 feet to the point of tangency, 7) Thence North 76°19'O1" West for 64 42 feet, 8) Thence South 13°57'56" West for 1 47 feet, 9) Thence North 75°50'29" West for 25 93 feet, 10) Thence North 45°02'S 1" West for 18 31 feet to a point of curvature of a circular cure concave to the Southwest, 11) Thence Northwesterly, along the arc of said curve to the left, having a radius of 64 79 feet and a central angle of 11 °21'21" for a distance of 12 84 feet to the point of tangency, 12) Thence North 56°24'12" West for 5 41 feet to a point of curvature of a circular curve concave to the Northeast, 13) Thence Northwesterly, along the ate of said cuive to the right, having a radius of 23 50 feet 49 and a central angle of 30°58'59" for a distance of 12 71 feet to the point of tangency, 14) Thence North 25°25'13" West for 6 96 feet to a point of curvature of a cneular curve concave to the South, 15) Thence Northwesterly, along the arc of said curve to the left, having a radius of 3 00 feet and a central angle of 51 °39' 10" foi a distance of 2 70 feet to the point of tangency, 16) Thence North 77°04'23" West for 125 67 feet to a point of curvature of a circular curve concave to the South, 17) Thence Northwesterly, Westerly and Southwesterly along the ate of said curve to the left, having a radius of 10 15 feet and a central angle of 14°26'49" for a distance of 2 56 feet to the point of tangency, 18) Thence South 88'28'48" West for 17 55 feet, 19) Thence North 76°52' 13" West for 28 42 feet, 20) Thence South 76°07'58" West foi 40 18 feet to a point of curvature of a circular curve concave to the Northwest, 21) Thence Southwesteily, along the arc of said curve to the nght, having a radius of 43 33 feet and a central angle of 09°48'56" for a distance of 7 42 feet to a point of intersection with a line parallel with and 95 00 feet Northwesterly of, as measured at right angles, the Northwesterly outside face of an existing building, Thence South 13° 01'32" West, along the previously descnbed line, for 135 78 feet, Thence South 12 46'52" West, departing the previously described line, for 37 38 feet to a point of intersection with a line parallel with and 95 00 feet Northwesterly of, as measured at right angles, the Northwesterly outside face of an existing building, Thence South 13 07'29" West, along the pie\rously described line and its southerly extension, for 148 75 feet, Thence South 07°43'57" West for 9 81 feet, Thence South 49°47'35" West for 4 49 feet, Thence South 43°01'12" East foi 77 73 feet, Thence South 43°33'00" East for 54 15 feet, Thence South 43'26'13" East for 4 55 feet, Thence South 48°06'57" East foi 20 77 feet to a point of curvature of a circular curve concave to the northeast, Thence Southeasterly, along the arc of said curve to the left, having a radius of 374 00 feet and a central angle of 09°28'16" for a distance of 61 82 feet to the point of tangency, Thence South 57°35'13" East for 23 28 feet, Thence South 80°19'31" East for 172 00 feet, Thence South 79°19' 1S" East for 13 23 feet to a point of intersection with the hack of an existing concrete sidewalk running along the north side of Pan American Drive, Thence along the hack of said existing sidewalk and Its northeasterly extension, for the following descnbed five (5) courses, 1) Thence South 74°54'37" East for 28 80 feet, 2) Thence South 77°42'57" East for 5 71 feet to a point of curvature of a circular curve concave to the Southwest, 3) Thence Southeasterly, along the arc of said curve to the nght, having a radius of 222 00 feet and a central angle of 21°55'13" for a distance of 84 93 feet to a point on said curve, 4) Thence North 87°54'54" East for 5 28 feet, 5) Thence North 42°23' 11" East for 11 27 feet to the Point of Beginning Containing 195,848 sq ft of 4 50 acres more or less 50 LEGAL DESCRIPTION (PARCEL 2) (FORMAL RESTAURANT & RESTAURANT PARKING) A portion of Tract A of Dtnnet Key, according to the plat thereof as recorded in plat book 34, at page 2, of the Public Records of Miami Dade County, Florida and a portion of Section 22, Township 54 South Range 41 East, Miami -Dade C ninty, Florida, more particularly described as follows Commence at the Southwest cornet, of the Northwest''/, of said Section 22, Thence South 02°24'44" East, along the Southerly extension of the West line of the NW 1/4, of said Section 22, for 436 51 feet, Thence North 86°27'43" East for 75 86 feet to a point of intersection with the U S Pier -Head Bulkhead line of 1939 as recorded in Plat Book 74, at Page 3, of the Public Records of Miami -Dade County, Florida, said point labeled HL-78-C and said line also being the Northwesterly line of T I I F Deed No 19448 to City of Miann recorded in Deed Book 3130, at Page 260, of the Public Records of Miami -Dade County, Florida, Thence along said TT S Pier -Head Bulkhead line, for the following described four (4) courses, I) Thence South 77°01'17" East, foi 66948 feet to a point labeled HL-78-B on the pieviously named plat, 2) Thence North 74°08' 10" Fast tot 526 25 feet to a point labeled HL-78-A on the pieviously named plat, 3) Thence North 43'08'20" East tor 250 00 feet to a point labeled HL-76 on the previously named plat, 4) Thence North 12°08'10" East tor 88 25 feet Thence North 45°44'46" West, departing the previously described line for 3 75 feet to a point on the outside face of an existing Seawall, Thence along the outside face of said seawall tor the following described fifteen (15 ) courses l) Thence continue North 45°44'46" West foi 12 58 feet, 2) Thence North 46°50'16" West foi 262 72 feet, 3) Thence North 47°06'49" West for 71 59 feet, 4) Thence North 02°02'56" East for 0 70 feet, 5) Thence North 47°07'52" West for 59 52 feet, 6) Thence North 43°12'49" East for 100 72 feet, 7) Thence South 46°47'08" East for 61 00 feet, 8) Thence North 88°45'00" East for 0 64 feet, 9) Thence South 47°14'37" East for 41 99 feet, 10) Thence North 61°42'01" East for 21 07 feet, 11) Thence South 30°14'35" East for 2 75 feet, 12) Thence North 62°06'03" Fast for 87 88 feet to the Point of Beginning of the hereinafter described parcel, 13) Thence continue North 62°06'01" East for 114 64 feet to a point of curvature of a circular curve concave to the West, 14) Thence Northeasterly Northerly and Northwesterly, along the arc of said curve to the left, having a radius of 75 00 feet and a central angle of 80°48'49" for a distance of 105 78 feet to the point of tangency, 15) Thence North 18°42'46" West for 101 13 feet to a point on the northerly right-of-way line ot Chart House Drive as shown on the sketch of survey dated January 14, 1985 referred file No Huse. 61-139 rev and prepared by Schwebke & Shiskrn and Associates and as shown on that Specific Purpose Survey at Dinner Key Marna, prepared by Biscayne Engineering , Thence North 76°03'06" West, along the pieviously described line foi 226 11 feet Thence South 39°08'26" West, departing the pieviously described northeily right-ot-way line, for 12 87 feet to a point on the northerly edge of pavement of Chart House Drive said point being on a circular curve concave to the Northeast and said point bears South 45°04'04" West from the center of said curve Thence along the northerly edge of pavement of said Chart House Drive for the following described three (3) courses, 1) Thence Southeasterly along the arc of said curve to the left, having a radius of 273 78 feet and a central angle of 04°52'06" for a distance of 23 26 feet to a point, 2) Thence South 29°13'50" West for 21 82 feet to a point on a circular curve concave to the Northeast and said point bears South 38°44'40" West from the center of said curve, 3) Thence Northwesterly along the arc of said curve to the Right ha\ mg a radius of 348 97 feet and a central angle of 04°24'23" for a distance of 26 84 feet to a point of intersection with the Boundary line of the tract of land described under Exhibit A in that certain Lease Agreement recorded in Ofticial Records Book 9916 at Page 1110, of the Public Records of Miami Dade County, Florda, Thence along the previously described Boundary line, and its Northerly extension, for the following described two (2) courses, 1) Thence South 12°55'28" West for 152 77 feet, 2) Thence South 76°17'34" East for 63 38 feet, Thence North 43°17'l0" East, departing the previously described boundary line, for 5 77 feet, Thence South 74°27' 18" East for 11 19 feet to a point of curvature of a circular curve concave to the Southeast, Thence Southeasterly, along the arc of said curve to the nght having a radius of 31 50 feet and a central angle ot 33°37'09" East tor a distance of 18 48 feet to the point of tangency, Thence South 40°50'09" East tor 37 58 feet to a point on the northerly end of an existing C B 5 wall, Thence South 49°09'51" West along the northerly end of said existing C B S wall for 0 43 feet to a point on the southerly face ot said existing C B S wall, Thence South'38°59'48" East, along the southerly face of said existing C B S wall and its southerly extension, for 84 41 feet to the Point of Beginning Containing 58,242 sq f or 1 34 acres more or less 51 LEGAL DESCRIPTION (PARCEL 3) (CASUAL RESTAURANT UPLANDS) A portion of Section 22, Township 54 South, Range 41 East, Miami -Dade County, Florida, more particulaily described as follows Commence at the Southwest coinei, of the Northwest'/a, of said Section 22, Thence South 02°24'44" East, along the Southeily extension of the West line of the NW '/a of said Section 22, for 436 51 feet, Thence North 86°27'43" bast, departing the previously described line, for 75 86 feet to a point labeled HL-78-C said point being a point of intersection with the U S Pier -Head Bulkhead line of 1939 as recorded in Plat Book 74, at Page 3, of the Public Records of Miami -Dade County, Florida, said line also being the Northwesterly line of T I I F Deed No 19448 to City of Miami, recorded in Deed Book 3130, at Page 260, of the Public Records of Miami -Dade County, Florida, Thence along said U S Pter-Head Bulkhead line, for the following described four (4) courses, 1) Thence South 77°01'17" East, for 66948 feet to a point labeled HL-78-B, 2) Thence North 74°08'10" East for 526 25 feet to a point labeled HL-78-A, 3) Thence North 43°08'20" East fat 250 00 feet to a point labeled HL-76, 4) Thence North 12°08'10" East foi 88 25 feet to a point ot intersection with the southerly extension of the outside face of an existing Seawall, Thence along the outside face of said seawall and its southerly extension for the following described twelve (12) courses, 1) Thence North 45°44'46" West for 16 33 feet, 2) Thence North 46°50'16" West for 262 72 feet, Thence North 47°06'49" West for 73 59 feet, 3) Thence North 02°02'56" East for 0 70 feet, 4) Thence North 47°07'52" West tor 59 52 feet, 5) Thence North 43° 12'49" East for 100 72 feet, 6) Thence South 46°47'08" East for 61 00 feet, 7) Thence North 88°45'00" East for 0 64 feet, 8) Thence South 47°14'37" East for 41 99 feet, 9) Thence North 61°42'01" East foi 21 07 feet, 10) Thence South 30°14'15" East for 2 75 feet, 11) Thence North 62°06'03" East for 5 43 feet to the Point of Beginning of the hereinafter descnbed parcel, 12) Thence continue North 62°06'03" East for 82 45 feet, Thence North 38°59'48" West, departing the previously descnbed face of the seawall and running along the Southerly face of an existing C 13 S wall and its southerly extension, for 84 41 feet, Thence North 49°09'51" East along the northerly end of said C 13 S wall for 0 43 feet to a point on the Edge of an existing Asphalt Pavement, Thence along the Edge of said Asphalt Pavement and its Northwesterly extension, for the following described three (3) courses, 1) Thence North 40°50'09" West for 37 58 feet to a point of curvature of a circular curve concave to the Southwest, 2) Thence Northwesteily, along the arc of said curve to the left, having a radius of 31 50 feet and a central angle of 33°17'09" for a distance of 18 48 feet to the point of tangency, 3) Thence North 74°27'18" West for 13 19 feet to a point on the Northeasterly extension of the edge of an existing concrete, Thence along the previously described edge ot said concrete and its Northeasterly and Southwesterly extensions tar the following descried five (5) courses, 1) Thence South 43°17'10" West for 69 37 feet, 2) Thence South 48°08'44" East for 26 07 feet, 3) Thence South 41°51'16" West tor 10 30 feet, 4) Thence South 45°40' 17" East for 20 02 feet, 5) Thence South 41 °51' 16" West for 19 89 feet to a point of intersection with an existing chain link fence, Thence along said chain link fence and its southerly extension for the following described three (3) courses, 1) Thence South 46°34'27" East for 48 90 feet, 2) Thence North 49°46'11" East for 14 07 feet, 3) Thence South 49°34'23" East for 26 67 feet to the Point of Beginning Containing 12,356 sq ft or 0 284 acres more or less 52 LEGAL DESCRIPTION (PARCEL 6A) (MARINA SUBMERGED LANDS) A portion of Tract A of Dinnei Key, according to the plat thereof' as recorded in plat book 34, at page 2, of the Public Records of Miami Dade County, Florida and a portion of Section 22, Township 54 South, Range 41 East, Miami -Dade County, Florida, snore particularly described as follows Commence at the Southwest coiner, of the Northwest''/, of said Section 22, Thence South 02°24'44" East, along the Southerly extension of the West line of the NW '/ of said Section 22, for 436 51 feet, Thence North 86°27'43" East for 75 86 feet to a point of intersection with the U S Pier -Head Bulkhead line of 1939 as recorded in Plat Book 74, at Page 3, of the Public Records of Miami -Dade County, Florida, said point labeled HL-78-C and said line also being the Northwesterly line of T I I F Deed No 19448 to City of Miami, recorded in Deed Book 3130, at Page 260, of the Public Records of Miami -Dade County, Florida, Thence along said It S Pier -Head Bulkhead tine, for the following described six (6 ) courses, 1) Thence South 77°01' 17" East, hi 669 48 feet to a point labeled HL-78-B on the previously named plat, 2) Thence North 74°08'10" East fot 526 25 feet to a point labeled HL-78-A on the previously named plat, 3) Thence North 43°08'20" East for 250 00 feet to a point labeled HL-76 on the previously named plat, 4) Thence North 12°08'10" East for 88 25 feet, Thence along the outside face of an existing seawall and its Southerly extension for the following described twelve (12) courses, 1) Thence North 45°44'46" West fot 16 33 feet, 2) Thence North 46°50'1G" West for 262 72 feet to the Point of Beginning of the hereinafter described parcel; 3) Thence North 47°06'49" West for 73 59 feet; 4) Thence North 02°02'56" East fot 0 70 feet, 5) Thence North 47°07'52" West for 59 52 feet, 6) Thence North 43° 12'49" East for 100 72 feet, 7) Thence South 46°47'08" East for 61 00 feet, 8) Thence North 88°45'00" East for 0 64 feet, 9) Thence South 47°14'37" East for 41 99 feet, 10) Thence North 61°42'0l" East for 21 07 feet, 11) Thence South 30°14'35" East for 2 75 feet, 12) Thence North 62°06'03" East for 87 88 feet, Thence South 27°53'57" East, departing the previously described existing seawall, for 60 00 feet, Thence South 62°06'03" West for 118 88 feet, Thence North 47°14'37" West for 26 50 feet, Thence South 42°45'23" West for 71 49 feet to the Point of Beginning Containing 20,317 sq ft or 0 47 acres more or less 53 LEGAL DESCRIPTION (PARCEL 6B) (SUBMERGED LANDS ABUTTING FORMAL RESTAURANT) A portion of Tract A of Dinner Key, accoidtng to the plat thereof as recorded in plat book 34, at page 2, of the Public Records of Miatni Dade County, Florida and a portion of Section 22, Township 54 South, Range 41 East, Miami -Dade County, Flonda, more particularly described as follows Commence at the Southwest cornet, of the Northwest'/a, of said Section 22, Thence South 02°24'44" East, along the Southerly extension of the West line of the NW '/ of said Section 22, for 436 51 feet, Thence North 86°27'43" East for 75 86 feet to a point of intersection with the Ll S Pier -Head Bulkhead line of 1939 as recorded in Plat Book 74, at Page 3, of the Public Records of Miami -Dade County, Florida, said point labeled HL-78-C and said line also being the Northwesterly line ofT 11 F Deed No 19448 to City of Miami, recorded in Deed Book 3130, at Page 260, of the Public Records of Miami -Dade County, Florida, Thence along said L1 S Pier -Head Bulkhead line, for the following described four (4 ) courses, 1) Thence South 77°01'17" East, tot 669 48 feet to a point labeled HE-78-B on the previously named plat, 2) Thence North 74°08' 10" East foi 526 25 feet to a point labeled HL-78-A on the previously named plat, 3) Thence North 43°08'20" East for 250 00 feet to a point labeled HL-76 on the previously named plat, 4) Thence North 12°08' 10" East tor 88 25 feet, Thence along the outside face of an existing seawall and its Southerly extension for the following described two (2) courses, I) Thence North 45°44'46" West for 16 33 feet, 2) Thence North 46°50'16" West for 262 72 feet, Thence North 42°45'23" East, departing the previously described existing seawall foi 71 49 feet, Thence South 47° 14'37" East foi 26 50 feet, Thence North 62°06'03" East for 118 88 feet to the Point of Beginning of the hereinaftei described parcel, Thence continue North 62°06'03" East for 175 75 feet to the point of intersection with the previously described U S Pier -Head Bulkhead line of 1939, Thence North 21°08'57' East, along the previously described line, for 146 73 feet, Thence North 76°03'06" West for 119 88 feet to a point of intersection with the outside face of an existing seawall, Thence along the outside face of said existing seawall for the following described three (3) courses, 1) Thence South 18°42'46" East for 53 81 feet to the point of curvature of a circular curve concave to the Northwest, 2) Thence southeasterly, southerly and southwesterly, along the arc of said curve to the right, having a radius of 75 00 feet and a central angle of 80°48'49" for a distance of 105 78 feet to the point of tangency, 3) Thence South 62°06'03" West for 114 64 feet to the Point of Beginning Containing 20,579 sq ft or 0 47 acres more or less 54 EXHIBIT "D" STATE DEP AGREEMENTS 55 EXHIBIT "E" EXISTING DRY SLIP USE AGREEMENTS JTO BE INCLUDED UPON RECEIPT FROM LICENSEE" 56 EXHIBIT "F" EXISTING PARKING FACILITIES 57 EXHIBIT "G" GROSS REVENUE REPORT 58 EXHIBIT "H°" PAYMENT AND PERFORMANCE BOND 59 PERFORMANCE AND PAYMENT BOND BY THIS BOND, We , as Principal, hereinafter called CONTRACTOR, and , as Surety, are bound to the City of Mann, Florida, hereinafter called CITY, hereinafter referred to as OBLIGEE, in the amount of Dollars ($ for the payment whereof, CONTRACTOR and Surety bind themselves, their hens, executots, administrators, successors and assigns, jomtly and severally WHEREAS, CONTRACTOR has by written agreement entered into a Contract, Bid/Contract No , awarded this day of 20_ with which Contract Documents are by reference incorporated herein and made a part hereof, and specifically include provision for liquidated damages, and other damages identified and for the purposes of this Bond are hereafter referred to as the "Contract " THE CONDITION OF THIS BOND is that if CONTRACTOR 1 Performs the Contract between CONTRACTOR and for construction of , the Conttact being made a part of this Bond by reference, at the times and in the manner prescribed in the Contract, and 2 Pays CITY all losses, liquidated damages, expenses, costs and attorney's fees, including appellate proceedings, that CITY sustains as a result of default by CONTRACTOR under the Contract, and 3 Promptly makes payments to all claimants, as defined by Florida Statutes 255 05(1) for all labor, materials and supplies used directly or indtrectty by CONTRACTOR in the performance of the Contract, THEN CONTRACTOR'S OBLIGATION SHALL BE VOID, OTHERWISE, IT SHALL REMAIN IN FULL FORCE AND EFFECT SUBJECT, HOWEVER, TO THE FOLLOWING CONDITIONS 3 1 A claimant except a laborer, who is not in privity with CONTRACTOR, and who has not received payment for its labor, materials or supplies, shall, within forty-five (45) days after beginning to furnish labor, materials or supplies for the prosecution of the work, furnish to CONTRACTOR, a notice that he intends to look to the bond for protection 3 2 A claimant who is not in privity with CONTRACTOR and who has not received payment for its labor, materials or supplies, shall, within ninety (90) days after performance of the labor or after complete delivery of the materials or supplies, deliver to CONTRACTOR and to the Surety, written notice of the performance of the labor or delivery of the materials or supplies and of the nonpayment 3 3 No action for the labor, matenals or supplies may be instituted against CONTRACTOR or the Surety unless the notices stated under the preceding conditions (2 1) and (2 2) have been given 3 4 Any action under this Bond must be instituted in accordance with the longer of the applicable Notice and Time Limitations provisions prescribed in Section 255 05(2) or Section 95 11, Florida Statutes 60 4 Performs the guarantee of all work and materials furnished under the Contract for the time specified in the Contract, then THIS BOND IS VOID OTHERWISE IT REMAINS IN FULL FORCE AND EFFECT Whenever, CONTRACTOR shall be, and is declared by CITY to be, in default under the Contract, having performed CITY obligations there under, the Surety may promptly remedy the default or shall promptly 4 1 Complete the Project in accordance with the teiins and conditions of the Contact Documents, or 4 2 Obtain a bid or bids for completing the Pioject in accordance with the terms and conditions of the Contact Documents, and upon determination by Surety of the lowest responsible Bidder, or if elects, upon determination by • and Surety, jointly of the lowest responsible Bidder, arrange for a contract between such Bidder and and make available as work progresses (even though there should be a default or a succession of defaults under the Contact or Contracts of completion arranged under this paragraph) sufficient funds to pay the cost of completion less the balance of the Contract Price, but not exceeding, including other costs and damages for which the Surety may be liable hereunder, the amount set forth in the first paragraph hereof The term "balance of the Contract Price" as used in this paragraph, shall mean the total amount payable by CITY to CONTRACTOR under the Contract and any amendments thereto, less the amount properly paid by to CONTRACTOR No right of action shall accrue on this bond to or for the use of any person or corporation other than C ITY named herein The Surety hereby waives notice of and agiees that any changes in or under the Contract Documents and compliance or noncompliance with any formalities connected with the Contract or the changes does not affect Surety's obligation under this Bond Signed and sealed this day of , 20 WITNESSES/ATTEST: CONTRACTOR: Contractor) 61 (Name of {CORPORATE SEAL) IN THE PRESENCE OF: INSURANCE COMPANY Fact) (Street) By: (Agent and Attorney -in - Address: (City/State/Zip Code) Telephone No.: 62 EXHIBIT "1" EXISTING IMPROVEMENTS 63 EXHIBIT "J" INSURANCE REQUIREMENTS I essee, at its sole cost, shall obtain and maintain in full foiee and effect at all times throughout the period of this Lease, the following insurance coverage Commercial General Liability Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence $1,000,000 General Aggregate Limit $2,000,000 Products and Completed Operations $1,000,000 Personal and Ad‘ erasing Injury S1,000,000 Damage to rented premises $100,000 Fndorsements Required City of Miami listed as an Additional Insured Additional insured endorsement required Contingent Liability & Contractual Liability Premises/Operations Liability IL Business Automobile Liability Limits of Liability Bodily hijuty and Property Damage Liability Combined Single Lunit Any Auto/Owned/Scheduled Including Hired, Borrowed or Non -Owned Autos Any One Accident Endorsements Required City of Miami listed as an Additional Insured III. Worker's Compensation Limits of Liability Statutory -State of Florida Waiver of subrogation $500,000 IV. Employer's Liability Limits of Liability Bodily nilury caused by an accident, each accident $500,000 Bodily injury caused by disease, each employee $500,000 Bodily injury caused by disease, policy liinit $500,000 V. Liquor Liability A Limits of Liability Each Occurrence $1,000,000 VI. Excess Liability/Umbrella Policy A. Limits of Liability Bodily Injury and Property Damage Liability 64 Each Occurrence $3,000,000 Aggregate S3,000,000 City of Miami listed as an additional insured Umbrella should include liquor liability VII. Marine Operators Legal Liability A. Limits of Liability Each Occurrence $1,000,000 VIII. "All Risk" Causes of Loss: Special t mi coverage, including theft, windstorm and flood coverage, and equipment breakdown coverage Valuation: 100% replacement cost on building and Lessee's business personal property, including improvements, all its equipment, fixtuies and furniture The Lessee must furnish a Certificate of Insurance for affording coverage cot the building or premises business Income and Extra Expense should be included preferably issued on an Actual Loss Sustained Basis The City's Department of Risk Management, reserves the right to reasonably amend the insurance requirements by the issuance of a notice in writing to Lessee. The Lessee shall provide any other insurance or security reasonably required by the City. The policy or policies of insurance required shall provide for notice of cancellation or material changes in accordance to policy provisions Said notice should be delivered to the City of Miami, Department of Risk Management, 444 SW 2 Avenue, 9ii' Floor, Miami, Florida 33130, with copy to City of Miami, Department of Public Facilities, 444 SW 2 Avenue, 3"i Floor, Miami, Flonda 33130, or such other address that may be designated fiom time to time A current evidence and policy of insurance evidencing the aforesaid required insurance coverage shall be supplied to Department of Public Facilities of the City at the commencement of this Lease and a new evidence and policy shall be supplied at least twenty (20) days prior to the expiration of each such policy Insurance policies required above shall be issued by companies authorized to do business under the laws of the State, with the following qualifications as to management and financial strength the company or companies should be rated "A-" as to management, and no less than class "V" as to financial strength, in accoidance with the latest edition of Best's Key Rating Guide, or the company of companies holds a valid Honda Certificate of Authority issued by the State of Florida, Department of Insurance, and is a member of the Florida Guarantee Fund Receipt of any documentation of insurance by the City or by any of its representatives, which indicates less coverage than required, does not constitute a waiver of Lessee's obligation to fulfill the insurance requirements herein In the event Lessee shall fail to proem e and place such insurance, the City may, but shall not be obligated to, procure and place same, in which event the amount of the premium paid shall be paid by Lessee to the City as an additional fee upon demand and shall in each instance he collectible on the first day of the month or any subsequent mon'h following the date of payment by the City Lessee's failure to procure insurance shall in no way release Lessee from its obligations and responsibilities as provided herein 65 INSURANCE REQUIREMENTS CONSTRUCTION PORTION MARINA/RESTAURANTS I. Commercial General Liability Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence $1,000,000 General Aggregate Limit S2,000,000 Products/Completed Operations $1,000,000 Personal and Advertising Injury $1,000,000 Endo' serpents Required City of Miami listed as an Additional Insured Employees included as insured Independent C ontractors C overage Contractual Liability Premises/Operations Explosion, Collapse and Underground Hazard Loading and Unloading II. Business Automobile Liability ',units of Liability Bodily Inituy and Property Damage Liability Combined Single Lunn Any Auto/Owned/Scheduled Including Hired, Borrowed or Non -Owned Autos Any One Accident Endorsements Required City of Miami listed as an Additional Insured Worker's Compensation Limits of Liability Statutory -State of Florida Garver of subrogation USL&H if Applicable S 1,000,000 IV. Employer's Liability, A Limns of Liability $1,000,000 for bodily injuiy 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 Owner's & Contractor's Protective A Limits of Liability Each Occuirence $1,000,000 $1,000,000 Policy Aggregate City of Miami listed as named insured VI. Excess Liability/Umbrella Policy A Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence 66 Aggregate S5,000,000 City of Miami listed as an additional insured VII. Payment and Performance Bond, TBD VIII. City of Miami Listed as Obligee Builder's Risk Causes of Loss: Special /A11 Risk Valuation: Replacement Cost Deductible: 5% wind and hail City listed as loss payee IX. Protection and Indemnity (If applicable) $1,000,000 Jones Act included. 67 r LEASE BETWEEN THE CITY OF MIAML' AND GROVE BAY INVEST -ENT GROUP, LLC FOR TI-Ik USE OF A CERTAIN PORTION OF THE CITY-OWNEp PROPERTY LOCATED AT 3385 Pan Am rican Drive, Miami, Florida 3349 Pan A erican Drive, Miami, Florida & 3351 & 3377. Charthouse Drive, Miami, Florida LEASE AGREEMENT This LEASE AGREEMENT ("Lease") is made as of the day of , 2013, by and between the CITY OF MIAMI, FLORIDA ("Lessor"), a municipal corporation of the State of Florida having its offices at 3500 Pan American Drive, Miami, Florida, 33133 and GROVE BAY INVESTMENT GROUP, LLC, a Florida limited liability company, having its offices at 2950 SW 27 Avenue, Miami, Florida, 33133 ("Lessee"). • The Lessor and Lessee, together the "Parties," agree as follows: ARTICLE I DEFINITIONS • Section 1.1 Definitions. Any word contained in the text of this Lease shall be read as the singular or the plural and as th 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 themj' n this Section: / 1.1.1 "Additional Rent" means all additional sums, charges, or amounts of whatever natufe to be paid by Lessee, not defined as Minimum Base Rent or monthly Percentage Rent, in accordance wih the provisions of this Lease, whether or not such sums, charges or amounts are referred to as additional r9iit. 1.1.2 "Applicable Law" means all laws of the United States, Florida Statutes, City of;Miami' and Miami -Dade County ordinances, codes, rules, regulations, resolutions, orders, judgments, de (ees and injunctions from courts having jurisdiction over the Property, rules, and requirements of State :find local boards and agencies with jurisdiction' over the Property, now existing or hereafter enacte , adopted, foreseen and unforeseen, ordinary and extraordinary, which may be applicable to the Property or any part of it. 1.1.3 "Assignment" means the complete transfer of the rights and obligations/of the Lessee under the Lease to a third party, whereupon the third party Assignee becomes the Lessee under the Lease and takes over all of the Property and the rent and other obligations associated with the/ Lease, thereby assuming the prior tenant's rights and obligations. 1.1.4 "Assignee" means the third -party entity taking over the rights and/obligations of the Lessee or assignor or owner of the Leasehold Estate. 1..1.6 "Business Days" means Monday through Friday excluding legal ho1,idays. 1.1.7 "Casual Restaurant" means the restaurant operating at the 1oc� Pion indicated for the casual restaurant in.the Proposal characterized by a casual atmosphere and general y at a price point lower than that of the Formal Restaurant. . 1.1.8 "City" means the City of Miami, a municipal Corporation of thr/State of Florida. 1.1.9 "City Manager" means the administrative head of the )ty's government who is authorized to execute this Lease and other documents included notices hereund. 1.1.10 "Date of Taking" means the earlier of (i) the date on which atual possession of all or less Than all of the Property, as the case may be, is acquired by any lawful powe¢/ or authority pursuant to the t provisions of Applicable Law; or (ii) the date on which title to all or less 'an all of the Property, as the case may be, has vested in any lawful'power or authority pursuant to the provyisions of Applicable Law. 1.1.11 "DEP" means the State of Florida Department of Environnliental Protection. 1.1.12 "Effective Date" means the date this Lease is fully executed and legally binding upon the Parties, only after final approval by the City and a public referendum. ' 1.1.13. "Equity Contribution" means the equity in the Project provided by Lessee personally or through one or more Persons, which are wholly owned by the Lessee andiover which Lessee retains voting control, shall equal not less than $17,900,000, inclusive of the Lessee's contribution to the Parking Facilities. The foregoing sum shall include all demonstrable hard costs and soft costs, including, but not limited to, architectural, consulting, and legal fees, reasonably related to the Project expended or reimbursed by the foregoing parties prior to or after the date hereof. The Lessee has deposited funds in escrow in the amount of $ 7,000.000 (the "Good Faith Escrowed Funds"), which funds shall be available to Lessee in order to ensure that Leasehold Improvements required by the terms of this Lease are paid and for other hard costs and soft costs reasonably related to the Project. The Good Faith Escrowed Funds shall be deemed to constitute a portion of the Equity Contribution. Page 2 of 68 1.1.14 "Fair Market Rent" means the rent that a similar property with the entitlements currently applicable to the Property, without consideration of the Leasehold Improvements constructed by the Lessee, would bring in a competitive and open market under all conditions requisite to an arm's length transaction, the parties each acting prudently, knowledgeably, and assuming the rent is not affected by undue stimulus. implicit in this definition are the following assumptions: (i) Both parties are typically motivated; (ii) Both parties are well informed or well-advised and acting in what they consider their own best interest; (iii) A reasonable time is allowed for exposure in the open market; (iv) Payment is made in terms of cash in U.S. dollarsin terms of financial arrangements comparable thereto; and (v) The rent represents the normal consideration for property leased, under the current market conditions (as of any date as of which Fair Market Rent is ,, determined) unaffected by special or creative financing or concessions grantegl by anyone associated with the Lease. 1 1.1.15 "Formal Restaurant" means the restaurant operating at the location(s) indicated for ;file formal restaurant in the Proposal characterized by a price point generally higher than that of the Casua( or a semi -casual Restaurant. 1.1.16 "Force Majeure" means any period of delay which arises from or through acts 9'f God; strikes, lockouts; , riot, or civil commotion; act of war; fire or other casualty; legal requirement.; delays caused by the other party; and causes beyond the reasonable control of a party. •( 1.1.17 "Gross Revenues" shall have the meaning described in Section 4.1.3 of the Leuie. 1.1.18 "Impositions" means all governmental assessments, including assessments/mpbsed by the City and the State of Florida, franchise fees, fire fees, excises, license and permit fees, submerged land fees, levies, charges, and taxes, including ad valorem real estate taxes on the Property and the Leasehold Estate„ general and special, ordinary and extraordinary properly levied against the Poperty and the Leasehold Improvements and/or the Lessee's Leasehold Estate which constitute a lien o the Property or the Leasehold Improvements, due as a result of the Lessees use of the leasehold and/or ue to the Lessee's operation of a commercial business on the Property. 4 1.1,19 "Leasehold Estate" means all of Lessee's right, title and interest as I., ssee in, to and under this Lease, the Property and the Leasehold Improvements. 1.1.20 "Leasehold Improvements" means a description of remodelin renovation work to be done to the physical plant as described in Exhibit "A" entitled "Schedule of Leas old Improvements" and all furnishings, fixtures, or equipment to be installed in accordance with Section .1, and all other items and improvements installed or constructedthereafter, from .time to time durinig Lease Term that are hereafter located upon the Property. 1.1.21 "Leasehold Mortgage" means a mortgage or other instrument which constitutes an encumbrance or lien upon the Leasehold Estate or any part thereof, or any related personal property, and Lessee's interest in the Leasehold Improvements (including Lessee's interest as sublessor in any present or future Subleases and any other interest of the Lessee in the Leasehold Improvements), as security for any loan, including any construction loan; provided, however, that no Leasehold Mortgage shall encumber Lessor's fee simple interest in the Property. 1.1. 22 "Leasehold Mortgagee" means any holder of a Leasehold Mortgage or any note or notes secured thereby. 1, 1.23 "Lease Term" means the period of time fixed in Section 3.1 and shall be deemed to include each Renewal Term fixed in Section 3,2 if Lessee exercises the applicable Renewal Option for Lessee's right to renew the Lease. 1,1.24 "Lease Year" means twelve (12) consecutive months commencing on the Effective Date. The first Lease Year shall begin on the Effective Date. Each succeeding Lease Year shall commence upon the anniversary date of the Effective Date. 1.1.25 "Lessee" has the meaning ascribed to it in the opening paragraph of this Lease as well as Lessee's successors and assigns. 1.1.26 "Licensee" means Grove Key Marina, Inc., the current operator of the marina and casual restaurant located on the Property. Page 3 of 68 • 1,1.27 "MPA" means the Department of Off -Street Parking of the City of Miami, d/b/a Miami Parking Authority. In relation to the parking obligations in this Lease, the term Lessor and MPA shall be used interchangeably. 1,1.28 "Minimum Base Rent" means the annual Minimum Base Rent due and payable by the Lessee on a monthly basis for the use of the subject Property in the amount set forth in Section 4.1.1. 1.1.29 "Marine Retail Store" means an establishment in which 50% or more of the floor area is stocked with supplies and equipment designed primarily or exclusively for use in commercial fishing or recreational boating. Examples of such supplies and equipment include navigational instruments, marine hardware and paints, nautical publications, nautical clothing (e.g., foul -weather gear), fishing supplies and marine engines. 1.1.30 "Net Condemnation Award" means the actual amount of the award paid in connection with or arising from the taking of all or less than all of the Property, as the case may be, less all reasonable out-of-pocket expenses incurred by Lessor or Lessee in connection with obtaining such award, including, without limitation, all reasonable attorneys' fees and disbursements incurred in connection therewith. 1.1.31 "Net Insurance Proceeds" means the actual amount of insurance proceeds paid following an insured casualty to the Leasehold Improvements less all costs and expenses including reasonable attorneys' fees incurred by the Lessee with respect to the collection thereof. 1.1.32 "Net Sale Proceeds" shall mean the net proceeds to Lessee, or owner transferring such interest, (pursuant to Article XI herein), remaining after payment of (i) any other debt relating to the Property as prorated proportionately to the interest being transferred; and (ii) all reasonable costs and expenses of the sale or Transfer, including commissions, fees, and closing costs. 1.1.33 "Parking Facilities Conditions" mean the satisfaction of following conditions precedent: (a) the completion of construction of the Parking Facilities, including, without limitation, the Guaranteed Parking Spaces, as evidenced by a permanent Certificate of Occupancy or Certificate of Completion, as applicable, (b) the completion of construction of the Parking Facilities. Retail Area, materially t accordance with the "Gray Shell Standards" described on Exhibit "B"attached hereto, and the issuance oa permanent Certificate of Occupancy therefor, and (c) Lessor, Lessee and the MPA shall have entered into an agreement pursuant to which (1) the MPA shall make available to Lessee, for use by Lessee and Sub- lessees, and their respective employees, patrons and customers, suppliers and contractors ("QuOified Parkers"), of approximately 497 parking spaces (as may be adjusted based upon final gross leasable retail square footage of Parking Facilities Retail Area constructed' by the MPA), on a nonexclusive b;is (the "Guaranteed Parking Spaces"), on a twenty-four hour per day, three hundred sixty-five day per yer basis, throughout the Lease Term, at hourly and daily parking rates which shall not exceed the parking rates in effect from time to time for comparable parking facilities in Coconut Grove; provided that fo°r the first Lease Year, there shall be no charge for the first hour of parking for each Qualified Parker, and/that for the second Lease Year thereafter, the charge for the first hour of parking for each Qualified Parkerfshall be one half of the charge for each successive hour, (2) the MPA shall make available to employees of Lessee or of any Sub -lessee (as identified to Lessor (or the MPA) from time to time) a set parking rate ate discount to Qualified Parkers, (3) the MPA sets forth a validation program for Lessee's patrons consistent with the commitments set forth in the RFP, (4) MPA agrees to maintain and repair the Parking FPAcilities, (5) the MPA agrees following any casualty to immediately commence and diligently purse any required restoration to the Parking Facilities, including the Parking Facilities Retail Area, and (d) the City agrees, upon any casualty to the Parking Facilities, and until completion of the restoration of theParking Facilities, to use its best efforts to make available to Lessee a number of parking spaces equa to the Guaranteed Parking Spaces within close proximity to the Property on the same basis and teri s applicable to the Guaranteed Parking Spaces. 1,1.34 "Parking Facilities" means the structure the Miami Parking Authq ity (the "MPA") will construct to provide parking to service the Property, which will include the Guaranteed Parking Spaces and the Parking Facilities Retail Area.• MPA shall construct the Parking Facilities Retail Area as part of the Property. 1,1.35 "Parking Facilities Retail Area" means the ground floor retail la to be constructed as part of the Parking Facilities,. 1.1.36 "Percentage Rent" means those amounts described in Section 4.1.3, below,. 1.1.37 "Possession Date" means the first day following the latter to occur of the following: (i) approval of this Lease by referendum as contemplated in the RFP, (ii) execution of this Lease by all parties, and (iii) the Licensee vacates the Property and the Lessor delivers to Lessee possession of the entirety of Page 4 of 68 the Property. 1.1,38 "Project" means the planning, designing, renovating or redeveloping, leasing, managing and operating of a mixed -use waterfront facility as contemplated by the Proposal. l .1 ,39 "Property" mean the land, buildings, improvements and authorized submerged lands located at 3385 & 3349 Pan American Drive, 3351 & 3377 Chart House Drive, Miami, Florida, as more particularly described in Composite Exhibit "Cl" attached herewith and incorporated herein by reference. Specifically, Property shall include all of the retail spaces located within the Parking Facilities, but not the parking spaces or land upon which the Parking Facilities will be constructed. Upon issuance of a Certificate of Occupancy for the Parking Facilities, the 'final description of the Property, including the Parking Facilities Retail Area, shall be annexed to this Lease as Exhibit "C2". . 1.1.40 "Proposal" means the document received by the Lessor dated May 10, 2013 in response to the RFP, a copy of which is available at the City Clerk's Office and incorporated herein by' this reference. 1.1,41 "Rent" means Minimum Base Rent or Percentage Rent, as such amounts are described and fixed in Section 4.1,1 and4.1.3, and adjusted'pursuant to the terms of Section 4.1.2 herein. 1.1.42 "RFP" means the document entitled "Request for Proposals ("RFP") No. 12-13-001 Lease of City -owned Waterfront Property for Marina/Restaurant/Garage Retail Uses" located at 3385 Pan American Drive and 51 Chart House Drive, Miami Florida, issued by the City of Miami on January 11, 2013, and the addenda thereto, a copy of which is available at the City Clerk's Office and incorporated herein by this reference. 1.1.43 "Sublease" means any lease (excluding this Lease), sublease, license, concession, permit agreement, or other agreement by which Lessee or any person or other entity claiming under Lessee; demises, leases, subleases, licenses or sublicenses to or permits the use or occupancy by another person or entity of any part of the Property and Leasehold Improvements, 1.1.44 "Subleasehold Estate Transfer" means any direct or indirect, voluntary or involuntary, sale, transfer, or assignment of any right, title or interest in and to any Sublease or any Subleasehold Estate, 1.1.45 "Sub -lessee" means any person, firm, corporation or other legal entity using or occupying or entitled to use or occupy any part of the Property or the Leasehold Improvements• under a Sublease. 1.1.46 "Submerged Lands" means any Submerged Lands adjacent to the Property which have been authorized' for marina or marine -related uses by the Lessor and/or the Lessee by the State of Florida Board of Trustees for Internal Improvement Trust Fund or by its administrative arm, the DEP. 1,1.47 "Submerged Land Fees" means all fees, waivers, rentals and taxes as determined by DEP and any and all government agencies for the use of the Submerged Lands area: 1.1.48 "Transferee" means the receiving entity of a transfer in accordancewith Article XI herein. / 1,1.49 "Transfer of Control" means any interest assignment which results/in a change in voting and operational control of Lessee, 1.1.50 "Transferor" means the owner who is transferring in accordance,Gvith Article XI herein, ARTICLE 11 ,/ LEASE OF PROPERTY Section 2,1 Lease of Property. The Lessor does hereby lease, let and demise to the Lessee, and t'e Lessee hereby leases from the Lessor the Property, subject to the terms and conditions in this Lease, to &ve and to hold the Property, with all of the rights, privileges and appurtenances, thereunto belonging r pertaining, for the term herein specified, unless this Lease shall be sooner terminated in a manner here�fnafter provided. • Section 2.2 Purpose of Use and Occupancy. /" The Lessee will use and occupy the Property as a full-servcce, dry storage marina, with ancillary minor boat repair functions, other ancillary marine -related services/fuel sales, other related food services, one or more casual restaurants, one or more formal restaurant`s, retail uses and such other uses as contemplated in the Proposal (the "Permitted Uses") and for no otl/er purpose or use of any kind. The marina shall provide for dry storage racks or compgrable storage equipment, accommodating the storage of a minimum of 400 boats. Vessels stored at the /arina shall be 28 feet or lesser in length. The retail uses shall be located in the Parking Facilities Retail 'Area on the ground floor of the Parking Facilities. In addition, retail uses shall be permitted in such area designated for retail uses in the Proposal (the "Other Permitted Retail Areas"). Lessee agrees that the Pa king Facilities Retail Area and the Other Page 5 of 68 Permitted Retail Areas shall not allow tenants operating adult novelty shops, gun shops and pawn shops. The parking garage portion of Parking Facility will be managed, operated and the parking spaces leased out by the MPA, The Lessee agrees to use its best efforts to obtain permits necessary to construct the pier set forth in the Proposal. If the Lessee obtains such approvals, then upon completion of the pier, the pier shall be open for public use, subject to such reasonable access and use restrictions as established from time -to -time by Lessee and approved by the Director of Public Facilities. In addition to the foregoing, the Lessee agrees to use best efforts to construct two additional boat launches at the location described in the Proposal. The Lessor acknowledges that its consent may be required to construct such additional boat launches and, to the extent such approval is necessary, Lessor hereby agrees not to unreasonably condition, delay and withhold approval thereof. For avoidance of doubt, the cost of such additional boat launches and any improvements necessary to the baywalk associated thereto shall count towards the Equity Contribution as set forth in the Proposal. Lessee agrees that should the additional boat launches located at Grove Harbour not be available for use, that the Lessee shall construct the on -site boat launch as depicted in the Proposal. Section 2.3 Use of Submersed Lands. The use of any submerged land owned by the State of Florida, adjacent to the Property, shall be subject to approval by the DEP and may contain restrictions set forth by DEP for the use of said submerged lands, as more particularly described in Exhibit "D" attached hereto to be incorporated and made a part hereof.. Section 2.4 Suitability. of Property. Lessee acknowledges that neither the Lessor nor any of Lessor's officers, representatives, or employees has made any representation or warranty with respect to the Property or with respect to the, suitability or fitness of the Property for the conduct of Lessee's marina and/or restaurant operations or for any other purpose, except as set forth in this Lease or in the RFP. The execution of this Lease by Lessee shall establish that the Lessee accepts the condition of the Property "AS IS". Section 2.5 Limited Representations by Lessor. Lessor makes the following representations, covenants and warranties, which shall survive the execution of this Lease and Lessee's taking of possession of the Property: (a) That Lessor has taken all requisite actions to make this Lease binding upon the Lessor, and the Lessor is indefeasibly seized of marketable, fee simple title to the Property, and is the sole owner of and has good right, title and authority to convey and transfer all property, rights and benefits which are the subject matter of this Lease. (b) That, as of the Effective Date and throughout the Lease Term/no party except Lessee and parties in possession by through or under Lessee shall be in or,liave any right to possession of the Property.,except certain dryy slip users pursuant to the lease agreements described on Exhibit "E," which will be disclosed to the Lessee and included in this/Lease as Exhibit "E," upon receipt from Licensee, (c) That there is on the Effective Date and shall be throug'out the Lease Term, legal and physical ingress and egress to the Property from a paved public sttbet for vehicular traffic and perpetual legal and physical ingress and egress for pedestrian traffic. / (d) The Property may be used and operated only forhe Permitted Uses; and as of the Effective Date and throughout the Lease Term, there shallno Applicable Laws, private restrictions or other conditions which restrict or prevent the Propej y from being used and operated for the Permitted Uses. tf� (e) All of the representations and warranties of L ssor contained in this Lease shall continue to be true as of the Effective Date and throug out the Lease Term, and said representations and warranties shall be deemed to be restated 1 nd affirmed by Lessor as of the Effective Date without the necessity of Lessor's execution of a y document with regard thereto, and the Lessor's liability (except with respect to the environment I condition of the Property which. is expressly addressed in Article XII of this Lease) therefore, hall survive the signing of this Lease. Should any of the representations and warranties prove to e incorrect, it shall be Lessor's obligation to cure those warranties and representations, which are set forth herein forthwith at Lessor's expense. Section 2.6 Lease Execution. This Lease remains subject to final approval by the City Commission and approval by public referendum as provided pursuant to Section 3(f)(iii) of the Charter of the City of Miami. Prior to Page 6 of 68 consideration by the City Commission, Lessee shall deliver two (2) fully executed copies of this Lease to the City Manager, which copies shall be held in escrow by the City Manager until approval of the Lease by public referendum and, thereupon, the Lease shall become binding and effective as to both the Lessee and Lessor. If the Lease has not been approved by the City Commission and public referendum by November 15, 2013, then Lessee shall have the right at any time thereafter, to terminate this Lease by written notice thereof to Lessor. ARTICLE III TERM Section 3.1 Term of Lease. The initial term of this Lease is for a period of fifty (50) years ("Term"), commencing on thy''' Effective Date. �. Section 3.2 Option to Renew. The Lessee has two options (each, a "Renewal Option") of extending this Lease for two (2) fifteen -year (15) periods ("Renewal Term(s)"). Lessee may not exercise either Renewal Option tVextend if the Lessee then has uncured defaults on the terms and conditions of this Lease. To exorcise the applicable Renewal Option, the Lessee must not be in default under the terms and conditions ofthis Lease beyond any applicable cure period following applicable notice, and Lessee must give Lessor written notice by the latter of (x) the date which is three hundred and sixty five (365) days before the expiration date of the current Lease Term or (y) the date thirty (30) days following written notice from Lessor advising Lessee that Lessee has failed to furnish notice of its exercise the applicable Renewal Option by the date three hundred sixty-five (365) day before the expiration of the current Lease Term, which notice shall state in bold capitalized large font letters that such notice constitutes final notice to Lessee o'its right to exercise the applicable Renewal Option, Each Renewal Term will be on the same terms and conditions as the Leasee¢ except that the Rent will be adjusted as set forth in Article IV below. Section 3,3 Parking Facilities. Prior tp the issuance of a Certificate of Occupancy for the Parking Facilities, Lessor shahi• make its best effort, or shall cause the MPA to, make its best effort to make available to Lessee such parking spaces as necessary to operate the Permitted Uses open to the public prior to the/completion:of the Parking Facilities, on the same basis as the Guaranteed Parking Spaces, in the existing parking garages and parking lots owned or controlled by Lessor identified on Exhibit "F" attached ,hereto (the "Existing Parking Facilities"). However, Lessor's or MPA's failure to make such parking spaces available shall not be deemed a default of this Lease if Lessor and MPA have undertaken best efforts to make available to Lessee such parking spaces and, under such circumstances, the parties hereby agree to work cooperatively to find solutions that would permit Lessee to meet the parking requirements pursuant.to Miami 21. ARTICLE IV RENT, FEES AND PAYMENTS Section 4.1 Amount of Rent. The Lessee covenants that, it shall pay to the Lessor asRent for the Property, the Initial Minimum Base Rent in accordance to Sections 4, 1 ,1 herein from the Possession Date of the Lease until six (6) months following receipt of a Certificate of Occupancy for the Parkitig Facilities, including the Parking Facilities Retail Area ("Operation Date"). From and after the Operation Date forward continuously for the duration of the Lease Term, the Lessee agrees to pay an amount equal to the greater of the Minimum Base Rent (as defined in Section 4.1.1) or Percentage Rent to the Lessor. The Parties shall memorialize the Operation Date through the execution of an appropriate document establishing the exact date, 4.1.1 Minimum Base Rent. From and after the Possession Date the Lessee shall pay to the Lessor, Minimum Base Rent payable in advance on the first day of each month in equal monthly installments. The Minimum Base Rent shall initially be $1.4, million per annum (the "Initial' Minimum Base Rent") and shall increase to $1.8 million per annum upon the Operation Date; provided however, that upon satisfaction of the Parking Facilities Conditions, the Minimum Base Rent shall increase to $1.9 million per annum for the twenty four (24) month period after satisfaction of the Parking Facility Conditions and $2.0 million per annum thereafter. Notwithstanding the'foregoing, if the Parking Facilities Conditions are satisfied but only after June 1, 2016, then the amount of the Minimum Base Rent shall remain at $1.9 million and will not increase Page 7 of 68 • to $2.0 million as set forth above and if the Parking Facilities Conditions are satisfied but only after January I, 2017, then the amount the Minimum Base Rent shall remain at $1.8 million for the duration of the Lease (each subject to adjustment as set forth in following sentence). Following each of Lease Years 15, 30, 50 and 65, the Minimum Base Rent shall be adjusted to equal the then applicable Fair Market Rent, as determined pursuant to Section 4.3.2. Notwithstanding the foregoing, the parties acknowledge that the calculation of Minimum Base Rent set forth above is based on the assumption that the Parking Facilities Retail Area will contain 40,000 square feet of gross leasable retail space and, as such, the Lessee will pay $400,000 of Minimum Base Rent or $10 per square foot per annum of gross leasable retail space. As such, the amount of Minimum Base Rent set forth above shall be adjusted such that the Minimum Base Rent shall equal $10 per square foot per annum of gross leasable retail space actually• constructed by the MPA. The Parties acknowledge that the Parking Facilities Retail Area may contain as much as 60,000 square feet of gross leasable retail space. ' 4.1,2 Consumer Price Index (CPI) Escalation, Lessee agrees that, except for the Lease Years as of which Minimum Base Rent shall be adjusted as provided in 4.1.1 above, the Minimum Base Rent shall be increased every five years each, a "CPI; Escalation Year") from the Lease Effective Date by an amount equal to the percentage increase during the prior year in the consumer price index ("Index"), which is the monthly index published by the Bureau of Labor Statistics of the United States Department of Labor as the Consumer Price Index for All Items, Miami -Ft. Lauderdale, Florida, Base Year 1982-84=100, The CPI adjustment to Minimum Base Rq t shall . be hereinafter referred to as the "CPI Escalation". The amount of the CPI Escalation to Mininylm Base Rent shall be capped at five percent (5%) each time the CPI Escalation is made (the "Maxifnum CPI Percentage"). The first CPI Escalation shall be at Lease Year 5. a� The CPI Escalation of the Minimum Base Rent shall be equal to the Minimum Base4.ent in effect for the immediately preceding Lease Year multiplied by the "CPI Percentage" (as definej!rbelow) not to exceed the Maximum CPI Percentage. The CPI Percentage shall equal.the fraction (i) ,hose numerator equals the monthly Index published immediately prior to the new Lease Year (or tilts nearest reported previous month), and (ii) whose denominator is the same monthly Index published immediately prior to the immediately preceding Lease Year (or the nearest reported previous month). If the,1 dex is discontinued with no successor Index, Lessor shall select a commercially reasonable comparable iti'dex. Lessor shall compute the CPI Escalations and send a notice, with calculp'fions, to Lessee setting forth the adjusted Minimum Base Rent within sixty (60) days of the commencemeyirt of each CPI Escalation Year or as soon as such Index is available. In the event the Minimum Base Rent jncreases, Lessee shall pay to Lessor within thirty (30) days of receiving such notice, the Additional Re (owed for the months that have elapsed in the current Lease Year. 4.1.3 . Percentage Rent, Commencing on the Possession Date and continuing throughout the Lease Term, the Percentage Rent shall be due and payable to the Lessor. The Percentage Rent shall betan amount equal to the sum of (x) the cumulative total of the following percentages of Gross Revenue d 'scribed in items (i) through (v), below, and (y) the other amounts described in item (vi) due hereunder: !' 1) 5% percent of the Gross Revenues, from the Formal DiOng Restaurants; ii) 10.3% percent of the Gross Revenues from the Casual kestaurants; iii) 15% percent of the Gross Revenues from marina ope htions (non -fuel); iv) 15% percent of marina gross fuel profits (gross fu, I profits defined as gross fuel sale price per gallon minus cost of delivered fuel per gall' n); v) 5% percent of the Gross Revenue from any Marine Retail Store (excluding any Marine Retail Store within the Parking Facilities Retail rea, which shall pay rent pursuant to ' (vi) below) and any ancillary sales from any othe source within the Property, excluding those sources identified in subparts (i), (ii), (iii), (v) or (vi); and vi) $10 pet square foot per annum for all occupied r vacant retail spaces within the Parking Facilities Retail Area and within the Other Permitted Retail Areas and (other than those uses described in items (i) through (v), above within such area, such that the Percentage Rent payable for such retail uses shall be without duplication between categories) (the "4.1.3 Rent"). Commencing with each of the Lease Years following Lease Years 15, 30, 50 and 65 (each, an "Adjustment Lease Year"), the 4,1.3 Rent shall be adjusted as follows: (1) as of the commencement of the first Adjustment Lease Year, the 4.1.3 Rent shall be increased to $11.50 per square foot per annum; and (2) as of the commencement Page 8 of 68 of each subsequent Adjustment Lease Year, the 4.1.3 Rent shall be adjusted to equal the product of (x) the 4.1.3 Rent in effect immediately preceding such Adjustment Lease Year, times (y) 50% of the percentage increase in Minimum Base Rent, as determined pursuant to Section 4.3.2, that will take effect as of the commencement of each applicable Adjustment Lease Year. The percentages used to determine the Percentage Rent described in items (i) through (y, above shall not be subject to adjustment. The parties recognize that the characterization of a portion of the Property, e.g, as Marine Retail Store, or Non -Marine Retail,/may change from time -to -time. , For example, a portion of the Property characterized. for purposes of Percentage Rent as non -Marine Retail may subsequently be occupieyi for a Marine Retail use or a pbrtion of the Property used initially for a marine operatns use may, upon completion of the Improvements, be used for Marine Retail. For avo Hance of doubt, the characterization of the use for purposes of determining Percentage Rent shall be adjusted as of the date the Lessee or its Sub -Lessee obtains a new certificate'of use (or its equivalent) for such new use. If there is any underpayment of Percentage Rent, Lessee shall pay the Lessor themount of the deficiency within thirty (30) days of the Lessor's'receipt of the Percentage Rent payment. If/he Percentage Rent is not paid after thirty (30) days, Lessee shall be charged a late payment fee in accordance with Section 16,4 until the amount of underpayment is paid in full. / 4.1.4 Gross Revenues. Gross Revenues shall include the entire amount of all revenues and percentages of revenues actually collected and received by the Lessee and its Sub -lessees or its Assignees (excluding such revenues derived from the Parking Facilities Retail Area or any non -Marine Retail within the Other Permitted Retail Areas) and derived from the following sales sources, including without limitation: (i) all revenue from the commercial business and services Lessee and its Sub- lessees and/or Assignees) conduct on or from the Property (except as otherwise provided under this Lease); (ii) all revenue from sale of food, beverage, wine, beer, merchandise or services from the Property, excluding revenue derived froth the rental for any event or revenue earned by third party caterer otherwise paying rental to Lessee in connection with any event, which rental will be included in Gross Revenues, pursuant to subpart (viii), below; . (iii) all revenue derived from advertising andsponsorships conducted on the Property, including but not limited to, movie', television commercials, etc.; (iv) all amounts received from any catering fod'd operations in any way conducted at or from the Property, excluding reverie earned by any .third party caterer otherwise paying rental to Lessee in connection with such special event, which rental will be included in Gross Revenues, pursuant to subpart (viii), below; (v) all amounts received by Lessee frorn valet concession sales or parking valet services and calculated pursuant togection I l.1(c); (vi) delivery charges; (vii) sales made or performed by means of mechanical or other vending sales and services devices or machines on the Property, including without limitation, pay telephones, vending machines;; and entertainment devices both for cash and on credit, rendered in or upon ,the Property, excluding revenue derived from the rental of any portion of the,:'Property for any event or revenue earned by third party caterer otherwise paying rental to Lessee in connection with any event, which rental will be included in Gross Revenues, pursuant to subpart (viii), below, (viii) all revenue received by. Lessee in connection with events at any facility within the Property, or any portion thereof for any period of time, including without . limitation, banquets, parties, receptions held on or initiated from the Property, which Percentage Rent will be calculated pursuant to Section 4.1.3(v); Page 9 of 68 (ix) internet or telephone food/beverage orders received or filled at the Property, or procured from the Property by house -to -house or other canvassing, all deposits not refunded to purchasers, and orders taken, although said orders may be filled elsewhere, including proceeds of all video games; (x) all grants, subsidies, rebates, credits or similar benefits received from any federal, state, regional or local body, agency, authority, department or organization which revenues are actually received by Lessee and pursuant to the terms thereof, constitute unrestricted funds that may be used for general operating expenses; provided, however, sales tax and federal income tax credits for which Lessee may qualify shall be excluded from the foregoing; (xi) all donations and contributions received, the revenues of whichare actually received by Lessee and pursuant to the terms thereof constitute unrestricted funds that may be used for general operating expenses; and (xii) all other receipts whatsoever derived from other commercial operations conducted in or from the Property by the Lessee and its Sub -lessees (if any). Gross Revenues shall not include the following: (i) any sums collected and paid out by Lessee for any sales, use or. excise tax imposed by any federal, state or governmental authority directly on sales and collected from customers and accounted for by Lessee and/or Sub -lessees, provided that the amount is added to the selling price therein and paid by th Lessee to such governmental authority; (ii) the exchange of merchandise between the stores of Lessee, a party controlled)* Lessee, or Sub -lessees, if any, where such exchange of goods or merchandise is made solely for the convenient operation of the business of Lessee and not for the purpose of consummating a sale which has theretofore been made in or/from the Property and/or for the purpose of depriving Lessor of the benefit ova sale which otherwise would be made in or from the Property; (iii) the amount of returns to shippers or manufacturers; (iv) proceeds from the sale of trade fixtures, operating equipment or similar assets after use thereof in the conduct of Lessee's and Sub -lessees' business on the Property; (v) all sums and credits received in settlement of claims for loss 9t damage to merchandise; (vi) funds collected with regard to the Property which are not actually related to the day-to-day business.of the. Property such as, but nat limited to;tihe financing of the Lessee's interest in the Property; / (vii) collection of insurance proceeds; / (viii) collection of eminent domain proceeds; i (ix) monies collected for events, to the extent any portion of stlih monies collected are paid or delivered to the sponsor; (x) all gratuities paid to employees; (xi) amounts received by Lessee as reimbursements of expenses and cost sharing (for example, reimbursement of taxes, maintenance, insurance or utility bills); (xii)• any grants, subsidies, rebates, credits or similar benefits received by Lessee or Sub -lessee from any federal, state, regional or Iocalf`body, agency, authority, department or organization; (xiii) interest earned on Lessee's deposit accounts, earnings or .profits on Lessee's investments; j (xiv) interest income from loans or credit facilities granted by Lessee and similar passive or investment income of Lessee related to Lessee's liquid assets, investments or loans/credit facilities granted by Lessee; (xv) rents or percentage rents and commissions paid,`to Lessee by any Sub -lessees where the Lessor is collecting rent based on a percentage of Sub -lessee's Gross Revenues. (xvi) Amounts received by a valet parking concessionaire when Lessee is remitting the respective percentage due to Lessor as provided pursuant to Section 11.1(c). Page 10 of 68 (xvii) Any restricted donations or contributions whose revenues are earmarked for capital expenditures, as approved by the Lessor, to the Property. (xviii) Interest and finance charges charged by Lessee. If a sale is by credit card no deduction shall be allowed for any commission associated with such sale. A "sale" shall be deemed to have been consummated for the purpose of this Lease, and the entire amount of sales price collected by Lessee and Sub -lessees, shall be included in Gross Revenues, at such time that (i) the transaction is initially reflected in the books or records of Lessee or Sub-Iessee(s); or (ii) Lessee or Sub-lessee(s) receives all or any portion of the sales price; or (iii) the applicable goods or services are delivered to the customer and payment is made to Lessee or Sub-lessee(s), whichever first occurs, irrespective of whether payment is made in installments, the sale is for cash or for credit, or otherwise, or all or any portion of the sale price has actually been paid. at the time of inclusion in Gross Revenues or at any other time. No deduction shall be allowed for direct or indirect discounts, rebates, or other reductions on sales, unless generally offered to employees or the public on a uniform basis, within the applicable restaurant or retail establishment, Gross Revenues, whether for cash, credit, credit cards or otherwise, shall be recognized at such time as provided in the foregoing paragraph. 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. Gross Revenues shall be reduced by the amount of any refund made upon any sale in or from the Property, provided said amounts had been previously included in "Gross Revenues," not to exceed the sum so previously included, where the merchandise sold is thereafter returned by the purchaser and accepted by the Lessee or Sub -lessees, and if such refund is in the form of a credit to customer, such credit shall be included in Gross Revenues when used. Lessee shall be entitled to deduct from any amount originally included in Gross Revenues any portion thereof which is determined by Lessee to be uncollectible after ninety days following the date such amoun was originally due and payable to Lessee. 4.1.5 Sales Tax. The Lesseeshall be liable for the prevailing State of Florida Use Tax imposed on the amoun of rent paid to Lessor under this Lease, in the absence of an exemption or other reduction by the Stat of Florida. This Sales and Use Tax shall be payable to the Lessor when rent is due, and in turn, Lesso will remit the same, less any authorized handling deductions, if any, to the State. Said tax is applicable, o the Minimum Base Rent payments, unless otherwise determined by the State of Florida. 4.1.6 Manner of Payment. Every. 15th day .of the calendar month, Lessee shall pay the Lessor the monthly Minimum Base Rent and the difference between the Minimum Base Rent' and Percentage Rent, as applicable,/and shall deliver such payment along with the corresponding Gross Revenue Report for the precediq� calendar month to the City of Miami, Department of Finance 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 Report, a sample of which is attached herew0 and incorporated herein as Exhibit "G" to itemize any and all reportable Gross Revenues as described in Section. 4.1.4 herein.. Section 4.2 Security Deposit. Simultaneously with the execution of this Lease on the Effective Date, 1,essee shall initially deposit with the Lessor, the sum of nine hundred thousand dollars ($900,000), which/shall be equal to 50% of the annual Minimum Base Rent ("Security Deposit") in the form of cash, which may be applied from the Good Faith Escrowed Funds, or in the form of a letter of credit. The Security Deposit shall be adjusted in the manner described in Section 4.3.1 herein. The Security Deposit shall be maintained by Lessor in an interest -bearing money market account; all interest accrued from time to time thereon shall be paid to Lessee on an annual basis throughout the Lease Term, by no later then fifteen days following the end of each calendar year. For so long as the Security Deposit has not been repaid by Lessor, it shall constitute an Page 11of68 account payable by Lessor to Lessee within thirty (30) days following termination of this Lease to the extent, if any, that the Security Deposit has not been applied by Lessor as hereunder provided. If Lessee shall default with respect to any covenant duty, or obligation of Lessee under this Lease, then the Security Deposit or any part thereof may be applied by Lessor after the satisfaction of any relevant Cure Period (but Lessor shall not be obligated to do so) to the damages sustained by Lessor by reason of any such default or to indebtedness owing by reason of any failure of Lessee to make any required monetary payment under this Lease. No such application shall be construed as an agreement to limit the amount of Lessor's claim or as a waiver of any damage or release of any indebtedness, and any claims of Lessor under this Lease not recovered in full from the Security Deposit shall remain in full force and effect. At any time or times when Lessor has made any such application of all or any part of the Security Deposit, Lessor shall have the right (but not the obligation) at any time thereafter to request in writing that Lessee pay to Lessor a sum or sums equal to the amounts so applied by Lessor so that Lessor will always be in possession of a sum equal to 50% of the annual Minimum Base Rent. Lessee shall make each such requested remittance within fifteen (15) days following such request from Lessor and each such remittance received by Lessor shall thereupon constitute a part of the Security Deposit subject to the terms and provisions thereof. Failure to make any such requested remittance within such ten (10) day period may be treated by Lessor as a failure by Lessee to make timely payment of rent and as a Lessee Default, In th event of any conveyance or other transfer of the Property by the Lessor, Lessor's remittance of the Securj' Deposit or any remaining portion thereof to the purchaser of the Property shall release and relieve Less° of any further obligation or liability to Lessee with respect to the Security Deposit. - Section 4.3 Adjustments to Rent. • 1' The Security Deposit shall be adjusted from time -to -time, at such time as the Minimum Bob Rent shall be adjusted , as otherwise provided herein, such that the Security Deposit shall at all times be6qual to fifty percent (50%) of then applicable yearly Minimum Base Rent. In the instance where the Lessor deducts any amount of the Security Deposit, the Security Deposit shall be replenished by the Lessee to The extent necessary to restore the Security Deposit to the adjusted amount of the Security Deposit, within fifteen (15) days of the drawdown of the Security Deposit 4.3.2 Appraisal Rent Adjustment. 4.3.2.1 Determination of Fair Market Rent. • The Minimum Base Rent shall be evaluated in accordance with the procedures set forth in this Section 4.3.2 (each, a "Scheduled Appraisal") to determine the current Fair Market Rent for Minimum Base Rent and the required adjustments to these values. 4.3.2.2 Appraisers. No later then three hundred and sixty-five (365) days prior to the end of each of Lease Years 15, 30, 50 and 65, Lessor shall deliver to Lessee a determination ,pf the Fair Market .Rent, in accordance with .the criteria set forth herein applicable to the determination o Fair Market Rent. The determination of Fair Market Rent provided by Lessor shall be conducted by an independent commercial real estate appraiser who is a member of the American Institute of Real I~state Appraisers and who has not less than ten (10) years experience in appraising properties comparat'le to the Property (a "Qualified Appraiser"). Lessor shall pay for the appraisal. Lessor shall select its Qualified Appraiser from the City's general appraisers' services list. In no event shall an appraisal result in a reduction in the minimum rent due to the City. The Qualified Appraiser shall be hired the year prier to the Lease Year (i.e. Lease Years 16, 31, 51 and 66) that the newly appraised Minimum Base Rent(shall commence to take effect (each, an "Adjustment Lease Year"). In the event that Tenant shall disputei1the determination of Fair Market Rent made by Lessor's Qualified Appraiser, then, Lessee shall, within thirty (30) days following its receipt of the determination made by Lessor's Qualified Appraiser, select its owq real estate appraiser, who shall also be a Qualified Appraiser (though Lessee's Qualified Appraiser shall r1'bt be required to be on the City's general appraisers' service list). Lessee shall pay the costs of Lessee' Qualified Appraiser. The Lessor's Qualified Appraiser and the Lessee's Qualified Appraiser shall then have a period of thirty (30) days following the.selection of Lessee's Qualified Appraiser within which to attempt, in good faith, to reach agreement on the Fair Market Rent for the Property. If Lessor's Qualified Appi?aiser and Lessee's Qualified Appraiser are unable to agree upon the Fair Market Rent within such thirty (30) day period, then the Fair Market Rent shall be determined in accordance with the methodology set forth!below: Within fifteen (15) days following the expiration of such thirty (30) day period, Lessor's Qualified Appraiser and Lessee's Qualified Appraiser shall endeavor to mutually agree upon an independent Page 12 of 68 commercial real estate appraiser who shall be a Qualified Appraiser. If the Lessee elects, the pool of Qualified Appraisers shall exclude any appraiser on the City's general appraisers service list. If the Lessor's Qualified Appraiser and Lessee's Qualified Appraiser are unable to agree on such third Qualified Appraiser, Lessor and Lessee shall apply to the American Arbitration Association for designation of an appropriate third Qualified Appraiser. The Qualified Appraiser so selected or designated by the American Arbitration Association is hereinafter referred to as the "Third Appraiser." Within ten (10) days following the selection of the Third Appraiser, Lessor's Qualified Appraiser and Lessee's Qualified Appraiser shall each submit to the Third Appraiser their respective final determinations of the Fair Market Rent. Within thirty (30) days thereafter, the Third Appraiser shall select, as the Fair Market Rent, either the determination submitted by Lessor's Qualified Appraiser or the determination submitted by Lessee's Qualified Appraiser. The Third Appraiser shall not select any amount as the Fair Market Rent, other than the amount submitted by either the Lessor's Qualified Appraiser or the amount submitted by the Lessee's Qualified Appraiser. The Third Appraiser shall notify both Lessor and Lessee, in writing, which of the two determinations the Third Appraiser has selected as the Fair Market Rent. The selection of the Third Appraiser shall be final and binding on both Lessor and Lessee and the Fair Market Rent, as selected by the Third Appraiser, shall be the Minimum Base Rent, which shall take effect commencing as of the beginning oldie applicable Adjustment Lease Year. 4.3.2.3 Method. Each Qualified Appraiser shall determine the Fair Market Rent based on the parameters set forth in the definition thereof set forth in Section 1.1.13. Each Qualified Appraiser, in its discretion, may dispense with formal hearings, it being agreed that his task will be solely that of appraisal 4.3.2.4 Effect of Appraisal. The Fair Market Rent.determined in accordance with the procedures set forth in this Section 4.3.2 shall be binding and conclusive on the Lessor and the Lessee, except that in no event shall the Fair Market Rent be adjusted below the Minimum Base Rent and from the current Lease Year. 4,3,2.5 Appraisal Fee. The Lessee shall be responsible for one hundred percent (100%) of the costs associated with the hiring of the Lessee's Qualified Appraiser; and Lessor shall be responsible for one hundred percent (100%) of the costs associated with the hiring of the Lessor's Qualified Appraiser. In the event the Lessee disputes the first appraisal, the costs associated with the hiring of the Third Appraiser shall, be paid by the party whose Qualified Appraiser's determination of Fair Market Rent is not selected by the Third Appraiser; provided, however, if Lessee elects to exclude from the pool of Qualified Appraisers any appraiser on the City's general appraisers service list, then Lessee shall pay the full cost of the Third Appraiser. 4.3.2.6 Delayed Appraisal. If prior to the commencement of the Adjustment Lease Year, the adjusted Minimum Base Rent has not been determined by independent appraisal, in accordance with the procedures set forth in this Section 4.3.2, the Lessee shall continue to pay all Rent(s) and their respective increase(s), subject to the CPI Escalation as provided in Section 4.1.2 above. Following the determination of the Rent by independent appraisal, in accordance with the procedures set forth in this Section 4.3.2, the Rent will be adjusted as provided retroactively to the commencement, as applicable, of the next following Adjustmejft Lease Year, and, if necessary, the Lessee shall pay to the Lessor with the next installment of Rent due, •the amount, if any, by which the Rent, as adjusted, exceeds the Rent that has been paid by the Lessee for the retroactive period. Section 4.4 Submerged Land Fees. In addition to the rent described in Sections 4.1:1 to 4.1.2 herein, commencing upon the later of the Effective Date of this Lease or the effective date of an agreement with the DEP for use of the Submerged Lands, Lessee shall be obligated to pay al1' Submerged Land Fees as determined by the DEP for the use of the Submerged Lands and pay for all expenses incurred in obtaining the State's approval and waiver. The annual Submerged Lands Fee shall be paid to the City at the same location as the Minimum Base Rent and the City shall remit payment to DEP. Lessee shall remit the annual Submerged Lands Fees to the City, within five (5) thirty (30) Business Days of Lessee being billed by the City for the same, Lessee shall further be obligated to submit to the Lessor for remittance to DEP any and all documents required by Page 13 of 68 DEP which may include, but is not limited to, disclosure of any income from wet slips for the Submerged Lands. Except as otherwise provided, the annual Submerged Lands Fee shall be as provided in Florida Department of Environmental Protection, Administrative Rule 18-21.011(1)(b), as may be amended, and subject to yearly consumer price index (CPI) increases by DEP. Section 4.5 Lessee's Records. To the extent Gross Revenues generated by Lessee or any Sub -lessee (an "Applicable Sub- lessee") are applicable to the determination of any Percentage Rent hereunder (the "Applicable Gross Revenues"), Lessee shall prepare and keep or shall use commercially reasonable efforts to cause Applicable Sub -lessees to prepare and keep, full, complete and proper books and source documents in accordance with generally accepted accounting principles, of the Applicable Gross Revenues, whether for cash, credit or . otherwise, of each separate department at any time operated in the Property. The books and source documents to be kept by Lessee (and Applicable Sub -lessees) shall include, without limitation, true copies of all federal, state and local tax returns and reports, records of inventories and receipts of merchandise, daily receipts from all sales and other pertinent original sales records and records of any other transactions.! conducted in or from the Property by Lessee. / Pertinent original sales records may include any of the following,: (i) sales reports of back offic, systems fed from point of sale terminals, (ii) cash.register tapes, including tapes from temporary register's, if any, (iii) serially pre -numbered sales slips, (iv) the original records of all mail, internet and telephg'ne orders at and to the Property, if any, (v) settlement report sheets of transactions with any person conducting business in the Premise, if any, (vi) original records indicating that merchandise returned by customer 'was purchased at the Property by such customers, (vii) memorandum receipts or other records of merchandise taken out on approval, (viii) detailed original records of any exclusions or deductions from/"Gross Revenues, (ix) sales tax records, and (x) such other sales records, if any, which would no 'ally be examined by an independent accountant pursuant to accepted auditing standards in performing aaudit of Lessee's sales, Lessor and Lessee acknowledge and agree that, during the Lease Term, and in cnnection with certain Sub -leases, not all of the foregoing sales records may be maintained; however, Le - ee hereby agrees to maintain (or to use commercially reasonable efforts to cause any Applicable Sb-lessee to maintain) all such sales records as shall, in accordance with.commercially reasonable standard$ be required in connection with the determination of Applicable Gross Revenues, where applicable to theletermination .of any Percentage Rent hereunder. Subject to the preceding paragraph, Lessee shall record (or use commercially reasonable efforts to cause any Applicable Sub -lessee to record), at the time of each sale or other transaction, if the presence of the customer, all receipts from, such sale or other transaction, whether for cash, creditr otherwise, in a cash register or cash registers having.a cumulative total which shall be .sealed in a ginner approved by Lessor and which shall possess such other features as shall be reasonably required by Lessor, Lessee shall be required to install (and to use commercially reasonable efforts to cause Applicable by/Lessor, to install) point of 'sale terminals, pollable, point of sales cash register systems or such other hint of sale equipment of a make and model mutually agreed to by the Parties. Section 4.6 Reports by Lessee, Within ninety (90) days after the end of each Lease Year, Lessee shalt also furnish to Lessor a financial report (i.e. a gross revenue audit) by an independent certified publ''� accountant (the "Annual Report"), showing in all reasonable detail of the amount of such Applicabl Gross Revenues made by Lessee and Applicable Sublessees from the Property during the preceding L se Year, Lessee shall in all events furnish to Lessor within fifteen (15) days after the end of each mont of the Lease Term a written statement of Applicable Gross Revenues covering the preceding month, th ' statement to be in such form and style and contain such details and breakdown as Lessor may reasonabtrequire. Lessor acknowledges and agrees that, with respect to Applicable Gross Revenues generated/by any Applicable Sub -lessee, Lessee shall rely on the reporting made by each such Applicable Sub-les ee with respect to.its Applicable Gross Revenues and shall have no liability whatsoever for reporting err/ors made by any such Applicable Sub -lessee; provided, however, Lessee shall use commercially reasonable efforts to include in each sublease with any Applicable Sub -lessee reporting requirements with respect to Applicable Gross Revenues consistent with the reporting requirements applicable to the operations of Lessee hereunder. Section 4.7 Right to Examine Books. Notwithstanding the acceptance by Lessor of payments of Minimum Base Rent and Percentage Rent, Lessor shall have the right to all Rents and other charges actually due hereunder, and the right to Page 14 of 68 examine, make extracts from and copy, at the Property or Lessee's main accounting office, Lessee's books, source documents, accounts, records and sales tax reports filed with applicable government agencies by Lessee in order to verify the amount of Applicable Gross Revenues in and from the Property. For a period of' three (3) years after the expiration of each Lease Year, Lessee shall make (or use commercially reasonable efforts to cause any Applicable Sub -lessee to make) all such documents and records available at the Property or Lessee's main accounting office upon ten (10) days' prior written notice from Lessor. Section 4.8 Audit. (a) At its option, Lessor may at any time, upon ten (10) days ' prior written notice to Lessee, arrange for an auditor selected by Lessor to conduct a complete audit (including a physical inventory) of '. the applicable records and operations of Lessee and each Applicable Sub -lessee included in Applicable Gross Revenues from.the Property during the period covered by any statement issued by Lessee. Lessee shall make available (or use commercially reasonable efforts to cause any Applicable Sub -lessee to make available) to the Lessor's auditor at the Property or Lessee's main accounting office on the day set forth in Lessor's notice, requiring such audit, all of the applicable books, source documents, accounts and record referred to in Section 4.6 hereof and any other materials which such auditor' reasonably deems necessary ppi r desirable for the purpose of making such audit. Lessee shall promptly pay to Lessor the amount of fiy deficiency in Percentage Rent payments disclosed by any such audit. If such audit shall disclose that Lessee's statement of Applicable Gross Revenues is understated to the extent of five percent (5%) or rr(ore, then, unless Lessee shall dispute the results of such audit, Lessor may bill to Lessee the cost of such,'audit, which shall be paid by Lessee within thirty (30) days after Lessee's receipt of Lessor's invoice. /Iff such audit shall disclose that Lessee's statement of Applicable Gross Revenues is understated to the extent of ten percent (10%) or more, then, unless Lessee shall dispute the results of such audit, Lessor, in addi jon to the foregoing remedy and other remedies available to Lessor, shall have the option, upon Lessee': failure to pay such additional sums within thirty (30) days after written notice to the Lessee, to declare , essee to be in default hereunder, in which event, Lessor shall be entitled to all of the remedies set forth in' Article XVI below. In addition to the foregoing, and in addition to all other remedies available to Lessor, in the event Lessee's auditor and Lessor's auditor shall schedule .a date for an audit of Lessee's record in accordance with this Section 4.8, and Lessee shall fail to be available or shall otherwise fail to comply with the requirements for such audit, Lessee shall pay all costs and expenses associated with the canceled audit. (b) In addition to all other remedies available to Lessor, in the event that any such audit shall disclose that Lessee's records and other documents as referred to in Section 4.4, 4.5 andf4,6 hereof and such other materials provided ,by Lessee to Lessor's auditor are inadequate, in the opinion of an independent auditor serving as Lessor's auditor, to disclose accurately Lessee's Gross Revenues, then Lessee shall have thirty (30) days to cure any deficiencies raised by Lessor's auditor and shall then notify Lessor so that Lessor's auditorcan continue.its.audit. Lessor's exercise of the foregoing remedy' shall in no way limit or otherwise affect Lessor's ability to exercise other remedies available to it, nor shall Lessee's obligations pursuant to the terms, covenants and conditions of this Lease (including, without limitation, Lessee's obligation with respect to reporting Gross Revenues and payment of Percentage Rent) be in any manner reduced or diminished by the exercise of such remedy. Notwithstanding anythfng herein to the contrary, to the extent that Lessee shall fail to provide to Lessor any required reporting or records with respect to Applicable Gross Revenues as a consequence of any Applicable Sub -lessee's failure to timely. furnish 'to Lessee any required reporting or records with respect to the Applicable Gross Revenues generated by such Applicable Sub -lessee, then, provided that ' Lessee shall take all commercially reasonable measures pursuant to the terms of the applicable sublease to enforce the requirements of such sublease with respect to producing such reports or records, Lessee shall have no liability to Lessor in connection therewith, but shall promptly commence to take all commercially reasonable efforts to terminate such sublease, and, in connection there with, to recover all Applicable Percentage Rent due in connection with the Applicable Gross Revenues generated by such Applicable Sub -lessee and to account to Lessorfor same. Section 4.9 Lien for Rent. . The whole amount of the Rent, Additional Rent, and each and every'installment, and the amount of all taxes, assessments, water rates, insurance premiums and other charges and Impositions paid by the Lessee under the provisions of this Lease, and all costs, attorneys fees and other expenses which may be incurred by the Lessor in enforcing the provisions of this Lease, or on account of any delinquency of the Lessee in carrying out any of the provisions of this Lease, shall be and they are deemed to constitute a valid lien upon the Leasehold Improvements, and upon the Lessee's Leasehold Estate, Lessor hereby agrees that in the event Lessee shall obtain financing in connection with the Project which may entail granting to any Page 15 of 68 Leasehold Mortgagee or other lender. providing such financing a Leasehold Mortgage or other encumbrance upon all or any portion of the Leasehold Improvements, the Lessee's Leasehold Estate, or any personal property belonging to Lessee, Lessor shall subordinate its lien over and upon the Leasehold Improvements, Lessee's Leasehold Estate and any such personal property belonging to Lessee, pursuant to such commercially reasonable form of a subordination agreement as such Leasehold Mortgagee or other lender shall request. Section 4,10 Parking Trust Fund Contribution. The Lessee shall be required to contribute $10,000 per parking space required to meet the Lessee's parking requirement pursuant to the RFP. Based on the development contemplated by the Proposal, th Lessee's total contribution to the Parking Garage Facilities shall be $4,970,000 for a total of 497 parki g spaces, which amount may be adjusted as set forth below ("Parking Trust Fund Contribution"). Le Oee hereby elects the option of financing a portion of the Parking Trust Fund Contribution; therefore, as of the Effective Date of the Lease, the Lessee shall transfer $1,242,500 of the Good Faith Escrowed Fundsafo the Lessor with the remainder of the amount of the Parking Trust Fund Contribution (in the amount of $3,727,500 plus any additional bond issuance cost) to be financed by the MPA fully amortized over a twenty (20) year term at six percent (6%) interest and the corresponding payments to such financed amount constituting Additional Rent. The Lessee shall pay each installment of debt service for the Wince of the Parking Trust Fund Contribution by cashier's check or money order and delivered to the Finance Director, 444 SW 21'd Avenue, 7'1' Floor, Miami, Florida 33130. if the MPA has not obtained building' permits for, and commenced construction of, the Parking Facilities by January 1, 2015, then the Lessor Shall return the Parking Trust Fund Contribution to the Lessee. The Parties acknowledge that the final calculation of the Parking Trust Fund Contribution may fluctuate based on the actual gross leasable retail square footage constructed by the MPA as Parking Facilities Retail Area; therefore, the'actual amount,of the contribution will be adjusted (based on the formula set forth in the RFP) upon completion of the Parking Facilities Retail Area with the MPA financing the maximum percentage of such contribution as permitted in the RFP. ARTICLE V PAYMENT OF TAXES, ASSESSMENTS AND OTHER IMPOSITIONS Section 5.1 Payment of Taxes and Impositions Lessee shall pay before any fine, penalty, interest or costs are added for non-payment, any and all Impositions levied against the Property or against personal property, of any./kind, owned by or placed in, upon or about the Property by Lessee. Section 5,2 Installment Payments of Ad Valorem Taxes and/Impositions . Lessee. agrees.that to the extent. the Property .or any interest. Chereon is subject to ad valorem taxation, Lessee, at its option, may enroll in the Miami -Dade County Ad;Valorem Tax Payment Plan, If by law, any taxes, assessments or other Impositions are payable or may, in the case .of taxes, at the option of the taxpayer, be ,paid in installments (whether or no interest shall accrue on the unpaid balance of the Imposition), the Lessee may pay the same (and any accrued interest on the unpaid balance of the Imposition), in installments before any fine, penalty, interest orpost is added for the nonpayment of any installment and interest. Any Imposition relating to a fiscal period of the taxing authority, a part of which period is included before the Effective Date and part of which is'included after the Effective Date shall be adjusted as between the Lessor and the Lessee as of the Effective Date of the Lease Term, so that the Lessee shall pay that portion of the Imposition attributable to that part of the fiscal period included in the Lease Term, and the Lessor shall pay the remainder, if applicable. Any Imposition relating to a fiscal period of the taxing authority, a part of which period is included within the Lease Term and a part of which is included in a period of time after Lease Term.shall be adjusted as between the Lessor and the Lessee as of the termination of the Lease Term, so that the Lessee shall pay that proportion of the Imposition attributable to that part of the fiscal period included in theterm of this Lease, and the Lessor shall pay the remainder, if applicable. Section 5.3 Proof of Payment. The Lessee shall furnish to Lessor, within thirty (30) days after the date whenever any Imposition is payable by or in behalf of the Lessee, official.receipts of the appropriate.taxing authority, photocopies or other proof satisfactory to the Lessor, evidencing the payment. Section 5.4 Lessee's Right to Contest Impositions. Page 16 of 68 Anything herein to the contrary notwithstanding, Lessee shall have and retain the right to appeal or contest by legal proceedings, or in such other manner as it may deem suitable, any Imposition, or any valuation in connection therewith, and to defer payment of any such contested item, without the consent of Lessor, even if the same ultimately results in the payment of any interest, costs or penalties. In the event / that Lessee contests any Imposition, Lessee shall immediately notify the City Manager or his/her / authorized designee of its intention to'appeal said imposition. If at any time during the last three (3) years of the initial Lease Term or Renewal Term, Lessee shall contest an Imposition, Lessee may defer payment of a contested item upon the condition that, befo/e instituting any such proceedings, Lessee shall furnish and keep in effect a surety bond, cash deposit or other security satisfactory to the City Manager or his/her designee in an amount sufficient to pay one hundred percent (100%) of the contested Imposition or assessment, with all interest on it and costs and expenses, including reasonable attorneys' fees to be incurred in connection with it. The legal proceedings/herein referred to shall include appropriate proceedings to review tax assessments and appeals from 1n order issued therein and appeals from any judgments, decrees or orders. Any such contest shall dela/ the time periods set forth in Section 5,2 above, Lessee agrees to pay such Impositions in a lump sum payment or on an installment basis. Failure of the Lessee to pay such Impositions or assessments or any installment payment thereof shall constitute a default under this Lease. In connection with any appeal or contest of Impositions instituted by Lessee, upon written request by Lessee to Lessor, Lessor shall cooperate with Lessee in connection with any such appeal or contest, including, but not limited to, executing such documents or affidavits when and as 'may be reasonably required in connection therewith; provided, however, Lessee shall pay the reasonable costs incurred by Lessor therefor. ARTICLE VI LEASEHOLD IMPROVEMENTS • /° Section 6.1 Lessee's Obligation to Provide and Fund Leasehold Improvements. Within one hundred eighty days (180) days of the Effective Date, Lessee, at its own cost and expense, shall submit to Lessor its plans for the commencement and completion of the construction, and the acquisition and installation of the Leasehold Improvements. The plans shall include: a layout of the Property (excluding the Parking Facilities Retail Area), a lighting plan, a/depiction of all fixtures to be added to Property, interior and exterior finishes and material samples, typical display technique, interior and exterior signage plan, landscaping plans, store front and any work or equipment to be done or installed by Lessee affecting any structural, mechanical or electrical part of the Property ("Plans"). Within ten (10) Business Days of receipt of the Plans, the Lessor shall give Lessee'written notice of. either, Lessor's approval or Lessor's disapproval setting forth the reasons therefor, Th`Lessor may only disapprove of the Plans upon a finding by the City Manager that the Plans contain m,aterial variations from the plans and specifications set forth in the Proposal. In the event that Lessor disapproves the Plans, the Lessee shall . within fifteen (15) Business Days of receipt of the notice modify the Plans in accordance with the reasons set forth in Lessor's disapproval notice. The modified Plans sha)il be resubmitted to Lessor for Lessor's final review and approval, in accordance with the standards of review set forth above; Lessor shall have a period of ten (10) Business Days following receipt of such revised Plans within which to review same and furnish to Lessee written notice of Lessor's approval or disapproval. If Lessor shall fail to furnish to Lessee written notice of Lessor's approval or disapproval of the Plans or revised Plans submitted to Lessor, within the time frame set forth above, then the time frames set forth herein to complete construction of the Leasehold Improvements shall be extended by the number, of such additional days taken by Lessor to provide written notice of Lessor's approval or disapproval of the Plans or'the revised Plans submitted to Lessor, as the case may be. Notwithstanding the above, the Lessee shall cause the new dry rack storage slips to be installed as soon as reasonably possible following the removal by Licensee of the dry rack storage slips currently on the Property, and in any event, within one hundred and eighty days (180) following the Possession Date. Lessee, at its sole cost and expense, shall complete construction, acquisition and installation of the initial Leasehold Improvements as more fully described in Exhibit "A" attached hereto and made a part hereof, and acquire and install the furnishings, fixtures and equipment required for operation of the Property within three hundred and sixty five (365) days from the receipt of all required permits for construction of the approved Plans (except for the Dry Rack Storage Slips which shall be installed within. Page 17 of 68 one hundred and eighty (180) days following the Possession Date, as provided above). Lessee hereby covenants that Lessee shall expend no less than Seventeen Million Nine Hundred Seventy Thousand Dollars ($ 17,970,000.00) ("Minimum Level of Investment") in connection with the Project, which shall include, without limitation: (i) all soft and hard costs and expenses incurred by Lessee to complete al capital Leasehold Improvements, including, without limitation, building, facilities, docks and equipme , (ii) all environmental remediation costs, paid by Lessee or on its behalf, (iii) the $1,000,000 Secur'ty Deposit and (iv) the Parking Trust Fund Contribution. Upon completion of the construction, acquisit on and installation of the Leasehold Improvements, and acquisition and installation of the furnishings, fixt res and equipment, Lessee shall furnish to Lessor copies of receipts, releases and bill of sales in conne Lion therewith as shall be required to reasonably demonstrate Lessee's achievement of the Minimum Leel of Investment. / Section 6.2 Payment and Performance Bond. Prior to the commencement of any construction, the Lessee shall, at Lessee's sole cost and expense, cause Lessee's general contractor to furnish the Lessor with a Payment and Performance Bond. The Payment and Performance Bond shall be issued by a bonding company which, shall be approved by Lessor, in an amount equal to one hundred percent (100%) of the hard costs to construct the Leasehold Improvements, naming the Lessor as the owner/obligee, and the Lessee or Lesse's general contractor, as the principal guaranteeing the payment and performance of Lessee's obligations With respect to any and all construction work pertaining to the Leasehold Improvements, free of construction or other liens. The conditions of the Payment and Performance Bond shall be to insure that the / Lessee or Lessee's general contractor will: , (i) promptly make payment to all claimants, as defined in Section,255.05, Florida Statutes (2012), as amended, supplying the Lessee with labor, materials, or supplies, used directly or indirectly by the Lessee in the prosecution of the work related to the Leasehold Improvements under this Lease; and i (ii) to pay the Lessor all losses, damages, expenses, costs, /and attorneys fees, including appellate proceedings, that the Lessor sustains because of the Les'see under this Lease pursuant to claims made under Section 255.05, Florida Statutes (2012), as amended; and (iii) perform the guarantee of all obligations of the Lessee's' under this Lease with respect to the construction, and the acquisition and installation of the Leasehold Improvements. The Payment and Performance Bond may be terminated at such time ah the construction, and the acquisition and installation of the Leasehold Improvements are completed as ,bvidepeed by issuance of a certificate of occupancy and reasonably satisfactory evidence thereof is'provid`ed by the Lessee to the City Manager, including certification by .the Lessee's architect, that all requirements of the Payment and Performance Bond have been satisfactorily concluded. The form of the Pay,,tnent and Performance Bond, a sample of which is attached herewith by reference as Exhibit "H," shall be/approved by the City Manager, which approval shall not be unreasonably withheld. i The Lessor agrees that in the event the Lessee cannot obtain the above Payment and Performance Bond, the Payment and Performance Bond may be provided by the general contractor (s) (in an amount acceptable to the Lessor with respect to the work to be performed by:the general contractor(s), in lieu of the Lessee providing the same as Principal of the Project. Said Paytnent and Performance Bond(s) shall comply with all the requirements listed under in subsections (i) through (iii) above. Section 6.3 Contractor's insurance, The Lessee shall require every contractor performing ;any work pertaining to the Leasehold Improvements to furnish certificates of insurance including Builder's Risk insurance, if applicable, satisfying the Lessor's customary and commercially reasonable requirements therefor, protecting the Lessor and its respective commissioners, officers, agents, and employees, against any claim for personal injuries, death and property damage that may be asserted because.: of the construction, or the acquisition or installation of the Leasehold Improvements. Section 6.4 Additional Consideration. (a) The Lessor hereby, in consideration for the promises and covenants contained in this Lease to be kept and performed by the Lessee, shall simultaneously with the execution of this Lease on the Effective Date, grant and convey unto the Lessee all existing Improvements (including improvements, furnishings, fixtures and equipment) listed in Exhibit "I", in its "as is" and "where is" condition. Page 18 of 68 (b) The Lessee hereby, in consideration of the granting of this Lease shall upon termination or expiration of this Lease: (i) grant and convey unto the Lessor, free and clear of all liens, title to all Leasehold Improvements of a permanent character (including, for avoidance of doubt, all dry racks, but excluding all trade fixtures, furnishings, equipment and movable personal property such as, without limitation refrigerators, stoves, freezers, hood systems, grills, and dishwashers), and (ii) In addition to the Leasehold Improvements to be conveyed to Lessor as referenced above, Lessee shall further grant to the Lessor the right to purchase from the Lessee, all of Lessee's trade fixtures, furnishings, equipment and personal property added to or installed at the Property by the Lessee during the Lease Term, including all furnishings and equipment at then fair market value thereof, as determined by an j appraisal, provided that the Lessor by notice in writing to the Lessee of at least forty five / (45) days prior to the expiration, or earlier termination of the Lease Term, notifies the J% Lessee of its election. Section 6.5 Lessor's Property to Remain Free of Liens. i The Lessee shall make, or cause to be made, prompt payment of all money due and legally owing to all persons doing any work, including subcontractors, or providing supplies and equipment in connection with the construction, reconstruction or operation of the Property. The Lessee shall have no power or right to and shall not in any way encumber the Lessor's fee simple interest in the Property. if any lien shall at any time be filed against the Property, the Lessee shall promptly take and diligently pursue a cause of action to have the same discharged or to contest in good faith the amount or validity thereof,,nd if unsuccessful in such contest, to have the same discharged. Upon the Lessee's failure to do so, within thirty (30) days following Lessee's receipt of notice thereof from Lessor, the Lessor, in addition to any other right or remedy that it may have, may take such action as may be reasonably necessary to protect its interest, and the Lessee shall be responsible for any and all reasonable costs incurred by the Lessor in connection with such action, including all reasonable legal fees, costs and expenses. Section 6.6 Lessor Approval. j All Plans furnished under this Lease are expressly subject to Lessor's written approval, which the City Manager is hereby authorized to act on behalf of for purposes of such approval, and which approval he or she may not unreasonably withheld or delay and which approval shall be subject t4 the criteria for approval set forth in Section 6.1, above. No approval by the City Manager of any Plans furnished under this Lease purse ant to this Section shall relieve Lessee of any.obligation it may have at law to file such Plans with any department of the City or any other governmental authority having jurisdiction over the issues; or to obtain any building or other permit or approval required by law. Lessee acknowledges that any approval givenrrby the City Manager pursuant to this Section shall not constitute an opinion or agreement by the City that the Plans are structurally sufficient or in compliance with any laws, codes or other applicable reg4iations. ARTICLE VII j CONDUCT OF BUSINESS BY LESSEE Section 7.1 Use of Property. The Lessee shall occupy the Property and commence operations on the Possession Date, subject to the operational limitations that will result from the contemplated construction of the Leasehold Improvements. After the referendum with respect to this Lease concerning the Property is approved, then, within fifteen (15) days following the date as of which the Licensee vacates that portion of the Property occupied by Licensee, or abandons its operations, Lessee may take possession of and occupy such portion of the Property. Following the Possession Date, Lessee shall occupy the Property as soon as reasonably possible, and covenants to continuously conduct its permitted business therein throughout the Lease Term, subject to the operational limitations that will result from the contemplated construction of the Leasehold Improvements, periodic tenant vacancies, periodic repair and refurbishment to the Leasehold Improvements, periods of time required for insurance adjustments and reconstruction following casualty or partial taking, and Force Majeure. Lessee shall use the Property solely for the Permitted Uses. Lessee shall not use, permit or suffer the use of the Property for any other business or purpose. Lessee agrees to conduct its business upon the Property in accordance with the highest ethical and operating standards of the Page 19 of 68 marina and restaurant industry of which Lessee forms a part. Section 7.2 Operation of Lessee's Business. At all times during the Lease Term, Lessee shall manage the marina and restaurant operations at the'Property with due diligence and efficiency, in Lessee's sole and absolute discretion, and in a manner prudent and in accord with the current business techniques within the locale for Lessee's business so as to maximize the amount of Applicable Gross Revenues, subject to Force Majeure. Lessee shall carry (and shall use commercially reasonable efforts to cause each Applicable Sub -lessee to carry) at all times in the Property a stock of merchandise of such quantity, character and quality as shall be in accord with good and reputable business practices within the Coconut Grove business district which is the locale for Lessee's business. Section 7.3 Signs. In addition to the signage set forth in the Proposal, which is hereby deemed approved subject to obtaining any applicable permits, Lessee shall institute and enforce a uniform signage regime throughout the Property, which will apply to all directional sidewalk and street 'signage, and all exterior storefront and canopy signage for the Parking Facilities Retail Area and the Permitted Retail Area (the "Property Directional and Retail Signage Regime"), which Lessee may revise from time to time, The Property Directional and Retail Signage Regime and periodic revisions to same shall be subject to Lessor's written approval and consent (which the City Manager is authorized to give), which may not be unreasonably withheld, delayed or conditioned. All other signage on the Property (including, without limitation, restaurant signage and marina signage) shall be subject only to the requirements • of applicable signage codes. Lessee shall erect an exterior monument or pylon sign for•the Property, of type, composition and .design in conformance with the Miami 21 Zoning Code. Lessee further agrees that it shall maintain (or shall use commercially reasonable efforts to cause any Sub -lessee to maintain) any exterior sign, awning,. canopy, decoration, lettering, advertising matter or other thing in good condition and repair at all times, and, to the extent applicable, in accordance with Retail the Property Directional and Retail Signage Regime.. .1. ARTICLE VIII MAINTENANCE, REPAIR AND ALTERATION OF PROPERTY Section 8.1 Lessee's Maintenance Obligations. '' Lessee, at its sole cost and expense, agrees to provide the necessary management and labor/to continuously maintain the Property, including all operating equipment', utility services, and connection/son the Property. Lessee, at its sole cost and expense, agrees to provide, janitorial and custodian services,,trash and garbage removal services, and any and all other related services necessary to have the Property, and the Leasehold Improvements remain in good, safe, sanitary condition and repair throughout the LeasTerm. Lessee shall be responsible for periodic repainting of all exterior surfaces of the Leasehold Improvements on the Property, maintaining all landscaping on the Property, and maintaining its equipment fixtures, furnishings, and other personal property in good condition and repair. All maintenance shall. be at the Lessee's sole cost and expense and will be subject to general inspection by the Lessor/to insure a 'continuing quality of maintenance and appearance and physical condition of the Property commensurate with maintenance, health, and safety standards established by Applicable Law. , Section 8.2 Lessees Repair Obligation. 1`. Lessee, at Lessee's sole cost and expense, at all times during the Lease Term; shall make all interior, exterior, structural repairs, including repairs to the roof, wires, pipes, conduits and other equipment or facilities for supplying heat, light, power, hot and cold water services, all drainag7'and waste pipes or facilities leading from the Property, and to all heating, ventilating and air-conditioning equipment and any . other repair or replacement to the Property and to the Leasehold Improvements. J� . Section 8.3 Preventative Maintenance and Services. Lessee shall, at its sole cost and expense, provide the following preventive maintenance and services: .• a. Daily cleaning and janitorial services for the exterior commp(i areas of the Property; b. Grounds services including lawn, shrub and tree maintenance and removal of any rubbish or obstructions from the Property; - • i''' . c. Exterior window cleaning to be performed as needed;jut no less than once every one hundred and twenty days; . d. Vermin control as necessary, but no less than once every thirty (30) days; Page 20 of 68 e. Periodic maintenance and cleaning of kitchen and exhaust equipment, and grease traps or grease inceptors, if applicable, but no less than once every ninety (90) days; and f. Painting of exterior of building including caulking of all windows and door frames no less than once every four (4) years. In addition to the above, on the tenth and twentieth Lease Year of the Effective Date, and once every five years thereafter, the Lessee, at its sole cost and expense, shall have a qualified engineer perform a physical inspection of the Property including, but not limited to all structural components, plumbing, life safety, electrical, heating and air conditioning systems and mechanical equipment as well as any and all structural trade fixtures on the Property, as part of a preventive maintenance program. The Lessee shall submit the engineer's report along with a proposed plan for the funding and implementation of the recommendations contained in the engineer's report to the Lessor by the end of the Lease Year in which , such report is due for the Lessor's review. If the Lessee refuses, neglects or fails to provide the services required herein or does not provide adequate services within thirty (30) days after written demand from the Lessor, the Lessor may take corrective measures or cause the Property to be cleaned or repaired without waiving its right based upon any default of the Lessee and without releasing the Lessee from any obligations hereunder, The Lessee shall pay the Lessor the full reasonable cost of such work within thirty (30) days, of receipt of an invoice indicated the cost of such corrective measures or cleanup. Failure to pay such invoice shall constitute a default of this Lease. Notwithstanding the above, the Lessee's failure to perform the corrective measures or clean-up to the Property as directed shall constitute a default of this Lease, subject to the applicable Cure Periods. Nothing herein shall.imply that maintenance, repair, and inspections should be perfofined by the Lessee only at the suggested intervals. The Lessee shall, at all times, be responsible for the condition of the Property and shall perform repairs required in a timely manner so as to prevent injury to persons and waste to Property. Section 8.4 Changes/Alterations. ;< Except as consistent with the plans and specifications set forth in the Proposal, which are hereby deemed approved subject to obtaining applicable permits, Lessee shall not remove any buildings constituting a portion of the Leasehold Improvements or construct any additional buildings in and, to the Property or any part thereof, without the prior written consent of the Lessor, which consent shall be at the sole discretion of the City Commission. Lessor's consent or approval shall not/be required with respect to any other alterations to the Leasehold Improvements so long as such alterations are generally consistent with the Proposal or necessary to comply with Applicable Law, and, without limiting the foregoing, Lessee shall not be required.to obtain theconsent of Lessor in connection with the repair or periodic maintenance or refurbishment of any Leasehold Improvements or the reconstruction of any Leasehold Improvements following any casualty or taking, or in connection with the installation/of any trade fixtures, furnishings or equipment, exterior signs (so long as same conform to the, Property Directional and Retail Signage Regime) , exterior machinery, floor covering, interior or exterior lighting, plumbing fixtures, shades, awnings, interior build -out, including, without limitation, tenant improvements to the Parking Facilities Retail Area or the Other Permitted Retail Area . No approval by the City Commission of any changes or alterations shall relieve Lessee of any obligation it may have at law to file the required documents"with any department of the City or any other governmental authority having jurisdiction over the issues;; or to obtain any building or other permit or approval required by law. Lessee acknowledges that any/approval given by the City Commissionpursuant to this Section shall not constitute an opinion or agreement by the City that the changes or alterations are in compliance with any laws, codes or other applicable regulations. 8.5 Capital Infrastructure Account. Lessee agrees to contribute 1% of gross revenues to a Capital Infrastructure Escrow Account to fund on' -going capital infrastructures costs. In regards to sub- lessees, Gross revenues will apply to rents received by Lessee. Lessee shall send notification of the escrow fund balance to Lessor on an annual basis. The Parties shall enter into an escrow agreement to govern the use of these funds. ARTICLE IX Page 2I of 68 INSURANCE AND INDEMNITY Section 9.1 Insurance on the Property. (a) 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, -with respect to its operations on the Property the types and amounts of insurance 'coverage set forth in items I through VII of Exhibit "J_" attached hereto and incorporated herein by reference; and with respect to all Leasehold Improvements (expressly excluding the Parking Facilities Retail Area) the types and amounts of insurance coverage set forth in item VIII of Exhibit "J". 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 be 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, which approval shall not be unreasonably withheld, delayed or conditioned. The Lessor reserves the right to reasonably amend the herein insurance requirements by the issuance of a notice in writing to the Lessee, which' amended insurance requirements shall be consistent with commercially reasonable requirements then applicable to comparable leasehold interests and,subject to the reasonable approval by Lessee, which approval shall not be unreasonably withheld, (b) Lessor shall obtain and maintain (or shall cause the MPA to obtain and maintain) in full force and effect throughout the Lease Term, with respect to the Parking Facilities (including, without limitation, the Gray Shell Improvements), the types and amounts of insurance coverage setforth in items I, II, III, IV, VI and VIII of Exhibit "J", as the criteria therein may be revised from time to 011ie as provided in the immediately preceding subparagraph a. Lessor's insurance requirements may be,t`net through a self- insurance program, Section 9,2 Delivery of Insurance Policies.' All public liability, workers compensation and employer's liability policies shall be retained by the Lessee. The policies of insurance required to be furnished pursuant to item.VII1 of Exhibit "J" shall be held by and be payable, and the proceeds thereof shall be distributed in accordance with the terms of this Lease, Insurance company certificates evidencing the existence of all of these policies of insurance shall be delivered to the Lessor. All policies of insurance required to be provided and obtained by Lessee shall provide that they shall not be amended or canceled on less than thirty (30) days prior written notice to the Lessor. The Policies required to be maintained by Lessor and Lessee` pursuant to item VIII of Exhibit "J" shall contain waivers of subrogation rights endorsements, as required below. The Lessor shall have no obligation to pay premiums or' make contributions to the insuring'company or any other person or satisfy any deductible with respect to 'any policy required to be maintained by Lessee. On or before the Effective Date and. not less than thirty (30) days .prior to .the ,expiration date of any policy required to be carried pursuant. to this Section, the Lessee shall deliver to the Lessor insurance company certificates evidencing all policies of insurance and renewals required to be furnished, and, upon written request by Lessor, Lessee shall furnish to Lessor copies of the applicable respective policies. Receipt of any documentation of insurance by the Lessor or by any of its representative's which indicates less coverage than required does not constitute a waiver of the Lessee's obligation' to fulfill the insurance requirements herein. Section 9.3 Adjustment of Loss. Any Net Insurance Proceeds recovered on account of any damage or destruction by any casualty shall be made available for the payment of the cost of the reconstruction, replacement or repairs. All of the Net Insurance Proceeds plus the amount of any deductible applicable to said damage or destruction (the "Reconstruction Escrow Fund") shall be deposited by the insurance company or by the Lessee (in the case of the deductible) with an escrow agent acceptable to the City Manager (subject to approval by City Attorney) and Lessee, pursuant to an escrow agreement which shall be reasonably satisfactory to the City Manager and Lessee, with commercially customary provisions for such escrows, including, without limitation, instructions to the escrow holder that the escrow holder shall disburse the funds to the Lessee, with notice thereof to the Lessor, as the work of the reconstruction, replacement or repairs progresses, upon certificates of the Lessee's architect or engineer supervising the work that the disbursements then requested, plus all previous disbursements made from such Reconstruction Escrow Fund, do not exceed the cost of the work already completed and paid for, and that the balance in the Reconstruction Escrow Fund is sufficient to pay for the reasonably estimated cost of completing the required work. If the amount of the Net Insurance Proceeds is less than the cost of the required work, then Lessee shall pay the excess cost; and if the amount of the Net Insurance Proceeds is greater than the cost of the required work, then the excess Page 22 of 68 shall be paid to and belong to the Lessee. Section 9.4 Insurer to Be Approved -Premium Receipts. All policies of insurance of the character described in Exhibit "J" shall be written by companies of recognized responsibility reasonably acceptable to the Lessor. On request by Lessor, Lessee shall provide • photocopies of receipts showing the payment of premium for all insurance policies required to be maintained by this Lease. Section 9.5 Indemnification of Lessor.. Lessee shall indemnify, defend and save Lessor harmless from and against any and all claims, actions, damages, liability and expense in connection with Toss of life, personal injury and/or damage to or destruction of property arising from or out of any occurrence in, upon or at the Property, or the occupancy / or use by Lessee of the Property, or any part thereof', or occasioned wholly or in part by any act of omission of Lessee, its agents, contractors, employees, servants, customers, invitees, Lessees, Sub -lessees on` concessionaires. In case Lessor shall be made a party to any litigation commenced by or against Lessee covered by this indemnity provision, then Lessee shall protect and hold Lessor.harmless and pay all costs and attorney's fees incurred by Lessor in connection 'with such litigation, and any appeals thereof. Lessee shall also pay all costs, expenses and reasonable attorneys' fees that may be incurred or paid by Lessor in enforcing the covenants and agreements in this Lease. Section 9.6 Waiver of Subrogation. ' Lessor and Lessee each hereby waives any and all right of recovery Lessor or Lessee, as;the case may be may otherwise have against the other party hereto and such other parry's respective servants, agents, contractors, customers and employees, for Toss or damage to the Property or the Parking Facilities, as the case may be, to the extent such loss or damage is covered by the All -Risk policies maintained or required to be maintained, respectively by Lessor (or the MPA) or Lessee, as the case may be, pursuant'to the terms hereof, notwithstanding that such loss or damage may result from the negligence or fault of the other party hereto, or its servants, 'agents, contractors, customers or employees. Lessor and Lessee eaclafhereby waives all rights to recover against the other party for any damages arising from any causercovered by any • insurance required to be carried by Lessor or Lessee, , as the case may be, or any insurance actually carried by Lessor or Lessee, as a case may be. Lessee shall cause and Lessor shall cause (or shall cause the MPA to cause) its respective insurer(s) to issue appropriate waivers of subrogation rights „endorsements to all policies of All -Risk insurance policies carried in connection with the Property in the }larking Facilities and all commercial general liability policies maintained by Lessee and Lessor (and wheilapplicable, the MPA) shall include contractual liability coverage with respect to the contractual obligations of Lessee and Lessor (and, where applicable, the MPA) hereunder. 1 Section 9.7 Release of Lessor. . , Except as expressly provided. below,. the. Lessee. for and. in consideration of the leasing and the demise of the Property to the Lessee hereby release, remise and discharge tiie Lessor, its officers and employees, of and from all claims, demands, actions, whether in law'or in equity which may be filed or asserted by the Lessee or its Assignees for or on account of improvements made and furniture, fixtures and equipment installed in the Property, and from any and all costs and expenses"of Lessee or its Assignees in connection with this Lease, including, but not limited to the development ofihe Property and acquisition of the Leasehold Improvements, which may result from a third party challenging the validity or legality of this transaction under the City Charter or Code or the laws of the State of Florida, or arising out of the award of this Lease, or any subsequent Assignment of this Lease by the Lessee or fis Assignees ("Claim"). It is the intent of the Parties that, except as expressly provided below, this provision shall control over any other provision in this Lease and that notwithstanding any limited representations provided by Lessor under Section 2.5 of this Lease, except as expressly provided below, neither the Lessee, nor its Assignees shall seek to recover from the Lessor compensation for, or reimbursement of any costs, losses, fees or expenses • incurred by the Lessee or its Assignees, including expenses incurred in connection with the•acquisition of this Lease or the financing, and/or installation of the Leasehold Improvements, or otherwise, as a result of any adverse judgment which may be entered or relief granted in connection with the Claim. The terms of this provision shall expressly be made a part of any future assignment or mortgage of the Leasehold Interest. ARTICLE X SERVICES AND UTILITIES Section .10. 1 Lessee to Provide and Pay for Utilities. Page 23 of 68 The Lessee shall pay, or cause to be paid, all proper charges for gas, electricity, light, heat, water and power, for telephone, protective and other communication services, and for all other public or private utility services, which shall be used, rendered or supplied upon or in connection with the Property and the Leasehold Improvements, or any part of it, at any time during the Lease Term; and the Lessee shall comply with all contracts relating to any such services and will do all other things required for the maintenance and continuance of all services as are necessary for the proper maintenance and operation of the Property and; the Leasehold Improvements. The Lessee shall also at its sole. expense procure any and all necessary' permits, licenses or other authorization required for the lawful and proper installation and maintenance upon the Property of wires, pipes, conduits, tubes and other equipment and appliances for use in supplying any such utilities, services or substitutes to the Property. Section 10.2 Lessor Not Liable for Failure of Utilities. The Lessor shall not be liable for any failure of water supply, sewer, gas or electric current, or for any injury or damage to any person or the Property caused by or resulting from water, gas or electricity which may leak or flow from the water or gas mains on to any part of the Property or the Leasehold Improvements. The Lessor shall not be required to make any alteration to any service or utility system of the Property on behalf of Lessee; provided, however, following notice in writing from Lessee to Lessor of the interruption of any electric, water or sewer service to the Parking Facilities Retail Area, Lessor shall immediately commence, and diligently pursue, all commercially reasonable measures required in order to restore such service. Lessor shall not be liable for temporary failure of services, and -same shall not be deemed to constitute actual or constructive eviction, nor entitle .Lessee to any abatement or diminution in rent payable under this Lease. ARTICLE XI TRANSFERS, SUBLETTING AND LEASEHOLD FINANCING. Section 11.1 Lessee shall have the authority to enter into Sub -leases or assignments for portions of the Property, without the consent of Lessor, so long as such Sub -leases or assignments conform to the Permitted Uses. Any Sub -leases or assignments not conforming to such uses shall be void and of no force or effect and shall not confer any interest or estate in the purported Sub -lessee or assignee, and if Lessee shall fail to terminate any such Sublease or assignment not conforming to the Permitted Uses, within sixty (60) days following demand therefor from Lessor, such failure shall constitute a default under this Lease and the Lessor, at its election, may terminate this Lease, It is agreed that all terms and conditions of this Lease shall etend to and be binding on all Sub- lessees and shall be for a period of time equal to or less than the Lease Ferm. Lessee shall beliable for acts and omissions by any Sub -lessee to the extent any such acts or omissions constitute a breach of the terms of this Lease. Lessor reserves the right to directly terminatethe rights and interests of any Sub -lessee under any sub -lease for any cause for which Lessee's Leasehold Inter5st may be terminated, following the expiration of any applicable cure period, following applicable notice:. To the extent Lessor's consent is required with respect to any Sublease or assignment, Lessee shall reimburse to Lessor, as Additional Rent, all reasonable costs and expenses, including reasonable attorneys' fees, which Lessor incurs by reason of or in connection with its review and consideration of any such Sublease or assignment, and all negotiations and actions with respect thereto, such Additional Rent to be due and payable within thirty (30) days of receipt of a statementrof such costs and expenses from Lessor. (b) Procedure for Sub -lease or Assignment. j Should Lessee desire to enter into a Sublease or assign its interest in this Lease (in each case, to the extent Lessor's consent thereto is required as provided 'above), Lessee shall, in each instance, give written notice of its intention to do so to the City Manager at Feast fifteen (15) days, in the case of any such Sublease, and thirty (30) in the case of any such assignri'tent, prior to the effective date of any such proposed Sublease or assignment, specifying in such notice the nature of such proposed Sublease or assignment and the proposed date thereof and specifically identifying the proposed Sub -lessee or Assignee. Such notice shall be accompanied by a copy of the proposed Sublease, license, concession or permit agreement, or proposed assignment. (c) Additional Consideration Payable to Lessor. Except as provided below with respect to a valet concession and with respect to Subleases within the Parking Facilities Retail Area and the Other Permitted Retail Areas (other than a Marine Retail Store), Lessee shall, in consideration therefore, include in Lessee's Gross Revenues the amount of Sub -lessee's Gross Revenues which shall be listed separately on Lessee's monthly and annual reports of Gross Page 24 of 68 r Revenues. Sub -lessee's records shall be kept in accordance with Section 4.4. Additionally, Lessor reserves the right to examine such Sub -lessee's books and audit Sub -lessee's entire records in accordance with Sections 4.6 and 4,7 of this Lease. Lessee shall collect a fee from all valet concessionaires allowed on the Property ( "Valet Fees"). Lessee shall pay to Lessor, as Percentage Rent the amounts set forth in Section 4.1.3(v). The acceptance by Lessor of the payment of Rent following any Sub -lease prohibited by this Article shall not be deemed to be a consent by Lessor to any such Sub -lease nor shall the same be deemed to be a waiver of any right or remedy of Lessor hereunder. Section 11.2 Definitions. As used in this Article the term: (a) "Transfer" means: (i) any total or partial sale, Assignment or gifting of Lessee's Leasehold Estate or any. contract or agreement to do any of the same; f (ii) any transfer of the membership interests of Lessee if the transfer results in the beneficial ownership of Grove Bay Investment Group, LLC ('.'GBIG") being;l`ess than 51 % of the Lessee; any merger or consolidation of Lessee with any other person, or the sale or lease of`all or substantially all of the assets of the Lessee or of any Owner, other than an Owner whose shares are. publicly traded. (b) "Owner" means: (i) any person, firm, corporation or other entity which owns, directly or indirectly, legally or beneficially, more than fifteen percent (15%) of the stock or equity of the Lessee, but shall not include any equityholder of an Owner whose shares are publicly traded. (c) "Owner whose shares are publicly traded" means an Owner: (i) who has filed an effective registration statement with the Securities & Exchange Commission (or its successor) with respect to the shares of any class of itsYYoting stock or of all classes of any other form of ownership interest which includes voting rights; and (ii) whose voting stock and other form of ownership interest descrihed in clause (i) is listed for trading purposes on a securities exchange subject to the regulatory jurisdiction of the Securities & Exchange Commission (or its succesor) or is publicly traded over the counter. Section 11.3 Transfers. ,}.' The Lessee recognizes that the operational experience of the Lessee as set forth in the Proposal was given special consideration by the Lessor in the public selection process undertaken by the Lessor for the award of this Lease. Therefore, Lessee agrees that except as permitted pursuan 'f to subparagraphs (a), (b) and (c) below, or as specifically approved pursuant Section 11.7 below, no ^ransfer may be made, suffered or created by the Lessee, or any Owner without the prior written conseint of the City Manager which consent shall not be unreasonably withheld or delayed. The City Manager, in his sole discretion, may, but shall not be obligated to, present any request for Transfer to the CityJCommission for its final approval. The following Transfers shall be permitted hereunder: (a) Any Transfer directly resulting from the foreclosure of [lessee's Leasehold Estate, provided that such purchaser or grantee is an institutional investor or an agenttdesignee or nominee of an institutional investor which is wholly owned or controlled by an institutional investor, and that such purchaser or grantee within six (6) months after taking possession of the Property, shall have entered into an agreement for the management and operation of the Property with an acceptable operator or is itself an acceptable operator; (b) any Transfer to an acceptable operator consented to by the City Manager, whose consent shall not be unreasonably withheld or delayed or conditioned; (c) the issuance of stock/equity or stock/equity options to Lessee's directors, officers, or employees, provided the stock/equity or stock/equity options issued constitute, in the aggregate, less than fifteen percent (15%) of the issued and outstanding stock/equity of Lessee; The Parties hereby acknowledge and agree that anything herein to the contrary notwithstanding, the "going public" by Lessee, including, but not limited to, the filing of a registration statement with the .Securities and Exchange Commission, the creation of one or more classes of stock and the offering of Page 25 of 68 shares of stock to the public for purchase, shall not constitute a Transfer hereunder and shall not require the consent of the Lessor. Any consent to a Transfer shall not waive any of the Lessor's rights to consent to a subsequent Transfer. Any Transfer made in violation of the terms hereof shall be null and void and of no force and effect. Section 11,4 Notice of Transfer. With respect to any Transfer which must be approved by the City Manager, the Lessee shall give or cause to be given to the Lessor, written notice (including all information necessary for the Lessor to,'lake an evaluation of the proposed acceptable operator according to the requirements of this Leas9) f any Transfer of which Lessee, or its officers shall have knowledge, not Iess than sixty (60) days gfior to any such proposed Transfer, and the Lessor shall within thirty (30) days of its receipt of such 1lnformation, advise Lessee in writing if it shall consent to same. If the Lessor shall not consent to a Transfer, the City Manager shall state the reasons for such disapproval in his notice to Lessee. If the Lessor is not required to consent to a Transfer pursuant to the terms hereof, the Lessee shall notify the Lessor in writing of same within thirty (30) days after the date of Transfer. In the event the City Manager elects to exercise his right under Section 11.3 to present any request for Transfer to the City Commission for its approval, the City,: Manager shall use due diligence to present the request for Transfer to the City Commission as soon as practicable and the time for performance by Lessor shall be reasonably extended to provide sufficient time for presentation to the City Commission. Section 11.5 Information as to Shareholders, etc. Lessee shall from time to time throughout the Lease Term, as the Lessor shall reasonably request, furnish the Lessor with a complete statement, subscribed and sworn to by the President or Vice -President and the Secretary or Assistant Secretary, or manager, as the case may be, of the Lessee, setting forth' full names and addresses of holders of membership interests in Lessee, and the extent of their holdings, and in the event any other parties have a beneficial interest in such stock, their full names and addresses and the extent of such interest as determined or indicated by the records of Lessee, Notwithstanding the foregoing, the information required by this Section 11.5 shall not be required to be furnished with respect to the shareholders of any owner whose• shares are publicly traded. Section 11.6 Effectuation of Permitted Transfers. No Transfer of the nature described in Subsection 11.3(b) above shall be effective: unless and until: (a) all Rents, taxes, assessments, Impositions, insurance, permitting and other charges required to be paid by the Lessee under this Lease shall be paid by the Lessee up to the date of Transfer, • and all other covenants and agreements to be kept and performed by the Lessee siI7tall be substantially complied with at the date of Transfer; and • (b) the entity • to which such Transfer is • made, by instrument jh writing reasonably satisfactory to the City Manager and in a form recordable among the land recordsshall, for itself and its successors and assigns, and especially for the benefit of the Lessor expressly asspfne all of the obligations of Lessee under this Lease, and agree to be subject to all conditions and restrictions to which Lessee is subject; provided, however, that any Transferee shall not be required to assume5hny personal liability under this Lease with respect to any matter arising prior or subsequent to the period of such Transferee's actual ownership of the Leasehold Estate created by this Lease (it being understood,/nevertheless, that the absence of any such liability for such matters shall not impair, impede or prejuc {ce any other right or remedy available to the Lessor for default by Lessee). Nothing herein shall be construed to relive or release the Lessee from liability for the performance of all of the obligations of Lessee under this Lease, unless the Lessor in writing expressly provides for such a release; provided, however, notwithstanding the foregoing, the Lessee immediately prior to such Transfer shall have no liability wlftatsoever with respect to any matter arising subsequent to the date of such Transfer. '' Section 11.7 Criteria for Consent for Transfer. The Lessor may condition its consent to a permitted Transfer upon satisfaction of all or any of the following conditions: (i) The net worth, determined in accordance with generally accepted•accounting principles, of the Transferee immediately prior to the Transfer shall not be less than the net w6rth of said Transferor on • the Effective Date adjusted for inflation. (ii) Such Transfer shall not adversely affect the quality and type of business operation which the Lessee has conducted theretofore; Page 26 of 68 • (iii) Such Transferee, shall possess qualifications for the operation of Lessee's business as reasonably required of an acceptable operator a comparable project, or shall engage an acceptable operator having such qualifications and shall have demonstrated recognized experience in successfully operating such a business, including, without limitation, experience in successfully operating a similar quality business; 0 (iv) Such Transferee shall continue to operate the business conducted at the Property pursuant/ to all the provisions of this Lease; (v) Such Transferee shall assume in writing, in a form acceptable to Lessor, all of Lessee`;s obligations hereunder, and Lessee shall provide Lessor with a copy of all documents pertaining to Gch Transfer; and (vi) Lessee shall pay to the Lessor any due, but unpaid Rent. 6` Section 11.8 Liability of Lessee. , If a Transferee does not meet all of the criteria set forth in Section 11.7, Lessor, at its sole option, by notice to Lessee prior to the consummation of such Transfer, may require Lessee transfet`ring such interest to remain liable under this Lease for the performance of all terms, including, but no/limited to, payment of Rent due under this Lease. ' Section 11.9 Payment Upon Transfer or Sale of Lessee Business or Stock. f Lessee recognizes and agrees that: (i) the experience of Lessee was given special cinsideration by Lessor in the selection process which resulted in the award of this Lease; (ii) the qualificatjans and identity of Lessee are of particular concern to the community and Lessor; and (iii) it is partiallyrbecause of such qualifications and identity that Lessor is entering into this Lease. Accordingly, at all tirnis prior to the date of Transfer: (A) the Lessee's Equity Contribution shall be maintained or have been s''atisfied prior to the date of Transfer; and (B) GBIG shall retain voting and operational control of Lessee` Any waiver of the foregoing requirement shall require the City Manager's prior written consent, whi,h may be granted or withheld in his or her sole and absolute discretion. Lessee or Transferee shall p'y to Lessor a fee (the "Transfer Fee"), in connection with any Transfer as follows: during the initial five (5) years of the Term, the Transfer Fee for any sale or Transfer shall be 2% of the Gross Sale Amount/between Years 5 to 10 of the Term the Transfer Fee shall be 1.5% of the Gross Sale Amount; between Years 10 — 20 of the Term the Transfer Fee shall be 1.0% of the Gross Sale Amount; and after Year 20 of the ITerm, the Transfer Fee shall be 0.75% of the gross sale amount of such transaction. The Lessee shall pay P the Lessor the Transfer Fee at the time the Transfer becomes effective, or in the case of the sale of theLessee's stock at the time .the shares of stock are sold. Section 11,10 Acceptance of Rent from Transferee. J' The acceptance by Lessor of the payment of Rent following//4ny Transfer prohibited by this Article shall not be deemed to be a consent by. Lessor, to any such, nor„shall the same be deemed to be a waiver of any right or remedy of Lessor hereunder. J . Section 11.11 Transfers of the City's Interest. y'f' At the Lessee's request, Lessor shall provide the Lessee cj pies of any and all agreements or contracts pertaining to the total or partial sale, Assignment, conveyance, mortgage, trust or power, or other transfer in any mode or form of or with respect to the Lessor's revergionary or fee interest in the Property, or any part thereof, or any interest therein, or any contract or agreement to do any of the same, to any purchaser, Assignee, mortgagee, or trustee, Lessor hereby agrees4o incorporate the terms and conditions set forth in this Lease or in any agreement or contract with such purchaser, Assignee, mortgagee, or trustee, Section 11.12 Mortgages and Mortgagees: 11.12.1 Leasehold Mortgage. (a) Notwithstanding anything herein to the contrary regarding any Transfers, but subject to the provisions of this Section 11.12, and further provided t17'at Lessor has not notified Lessee in writing that a Lessee Default has occurred that remains uncured, Lessee shall have the right during the Lease Term, to encumber the Leasehold Estate by Leasehold Mortgage, for the purpose of securing the financing for the construction of the Leasehold Improvements and/or for the Yong -term financing or refinancing of any such Leasehold Improvements, subject to review and approval by the City Manager of the mortgage documents, for the sole purpose of ensuring compliance thereof with the conditions for mortgaging as set forth .in this Section 11.12, provided that such Leasehold Mortgage shall not encumber Lessor's fee simple title to the Property. Lessee shall provide copies of all mortgage documents required for the City Manager's review. Notwithstanding anything to the contrary in this Section or in this Lease, the Lessor and Lessee expressly agree, and (by acceptance of the Leasehold Mortgage) any Leasehold Mortgagee, that the Page27of68 Lessee's right to place a Leasehold Mortgage against the Lessee's Leasehold Estate is subject to the following: • 1. At the time the Leasehold Mortgages is made, Lessee has not been notified of any Lessee Default under this Lease that remains uncured. 2. No Leasehold Mortgagee or anyone claiming by, through or under the Leasehold Mortgagee, shall by virtue of such Leasehold Mortgage, acquire any greater rights in the Property than the Lessee has under this Lease. 3. The Leasehold Mortgage shall be expressly subject and subordinate to all conditions and covenants of this Lease and to the rights and obligations of Lessor. The Leasehold Mortgagee of;;any Leasehold Mortgage and the owner of any indebtedness secured by the Leasehold Mortgage, ,.upon acquiring Lessee's Leasehold Estate shall take the same subject to the covenants of this Lease. •,/ 4. The Leasehold Mortgage shall expressly provide that the Leasehold Mortgagee shall notify Lessor of default by Lessee under the Leasehold Mortgage prior to commencing foreclosure proceedings. • 5. That any right or remedy available to any Leasehold Mortgagee as provided in this Section 11.12 shall be deemed to apply in all respects to any affiliated 'designee or nominee of such Leasehold Mortgagee. ? 6. That the Lessor and any mortgagee of Lessor shall execute and ,deliver to any Leasehold Mortgagee a non -disturbance agreement in form and substance reasonably satisfactory to such Leasehold Mortgagee and Lessor. 7. That except as expressly prohibited by the provisions of this ection 11.12, any Leasehold Mortgage may be upon such terms and conditions as the Lessee and LeaseF1o1d Mortgagee may agree. In no event may the amount of such financing or refinancing exceed th`greater of: (a) eighty percent (80%) of the fair market value of the Leasehold Estate and all the Lasehold improvements thereon, or (b) eighty percent (80%) o.f the Replacement Costs ("Replacement hosts" are defined as the total costs for replacing the Leasehold Improvements located on the Property/4. Lessee shall deliver to Lessor promptly after execution by Lessee a true and verified copy of any Leasehold Mortgage, and/or any amendment, modification or extension thereof, together with the name and address of the owner and holder thereof. Lessee may not encumber the Leasehold Estate as security for any/indebtedness of Lessee with respect to any other real or personal property now or hereinafter owned by L,ssee. (b) During the continuance of any Leasehold Mortgage until such time as the lien of any Leasehold Mortgage has been satisfied: /t (i) The Lessor shall not agree to any //mutual termination nor accept any surrenderof this Lease (except upon the. expiration of .the Term), .r.br shall the Lessor consent to any material amendment or modification of this Lease, or waive any rigjtts or consents it may, be entitled to pursuant to the terms hereof, without the prior written consent of/Leasehold Mortgagee, which consent shall not be unreasonably delayed or withheld. (ii) Notwithstanding any defatflt by Lessee in the performance or observance of any covenant, condition or agreement of this Lease/on the part of Lessee to be performed or observed, the Lessor shall have no right to terminate this Leas even though a Lessee Default shall have occurred and be continuing, unless and until the City Manar shall have given Leasehold Mortgagee written notice of such Lessee Default and Leasehold Mortgagee shall have failed to remedy such default or to acquire the Leasehold Estate created hereby or to commence foreclosure or other appropriate proceedings in the nature thereof, all as set forth in, and withii the time specified by, this Section 11,12. (iii) Subject to the provisions of subparagraph (iv) immediately below, 'Leasehold Mortgagee shall have the right, but not the obligation, at any time prior to termination of this Lease, to pay all of the Reiit due hereunder, to provide any insurance, to pay any taxes and make any other payments, to make any repairs and improvements, to continue to construct and complete the Leasehold Improvements, and do any other act or thing required of Lessee hereunder, and to do any act or thing which • may be necessary and proper to be done in the performance and observance of the covenants, conditions and agreements hereof to prevent the termination• of this Lease. All payments so made and all things so done and performed by Leasehold Mortgagee shall be as effective to prevent a termination of this Lease as the same would have been if made, done and performed by Lessee instead of by Leasehold Mortgagee. Any act or inaction by a Leasehold Mortgagee shall be at the reasonable discretion of the Leasehold Mortgagee. Page 28 of 68 (iv) Should any Lessee Default under this Lease occur, Leasehold Mortgagee shall have sixty (60) days, or such additional time as is reasonably necessary to diligently cure the Lessee Default, after receipt of notice from the City Manager setting forth the nature of such Lessee Default, to remedy same and, if the Lessee Default is such that possession of the Property may be reasonably necessary to remedy the Lessee Default, Leasehold Mortgagee shall, within such sixty (60) day period, commence and diligently prosecute a foreclosure action or such other proceeding as may be necessary to enable Leasehold Mortgagee to obtain, such possession; provided that (aa) Leasehold Mortgagee shall have fully, cured any default in the payment of any monetary obligations of Lessee under this Lease within such sixty (60) day period and shall continue to pay currently such monetary obligations as and when the same are due, (bb) Leasehold Mortgagee shall within six (6) months of the date that it takes possession of the Subject Property employ an "Acceptable Operator" for the continued operation of the Project, which shall mean such operator of the facility as designated by the Leasehold Mortgagee and approved by the City Manager, which approval shall not be unreasonably withheld or delayed so long as such operator has ,the relevant experience and operating history comparable to the Lessee, and (cc) Leasehold Mortgagee shall have acquired the Leasehold Estate created hereby or commenced foreclosure or other appropriate proceedings in the nature thereof within such sixty (60) day period or prior thereto, and shall be diligently and continuously prosecuting any such proceedings to completion. All rights of the City Manager to terminate this Lease as the result of the occurrence of any such Lessee Default shall be subject to and conditioned upon the City Manager having first given Leasehold Mortgagee written notice of/such Lessee Default and Leasehold Mortgagee having failed to remedy such default or acquire Lessee's Leasehold Estate created hereby or commence foreclosure or other appropriate proceedings in the nature thereof as set forth in and within the time period specified by this subparagraph (iv). (v) A Lessee Default under this Lease which in the nature thereof cannot be remedied by Leasehold Mortgagee shall be deemed to be remedied if: (aa) within sixty (60) days after receiving written notice from the City Manager setting forth the nature of such Lessee Default, Leasehold Mortgagee shall have acquired Lessee's Leasehold Estate or commenced foreclosure or other appropriate proceedings in the nature thereof; (bb) Leasehold Mortgagee shall diligently and continuously prosecute any such proceedings to completion; (cc) Leasehold Mortgagee, within such sixty (60) day period, shall have fully cured any default that does not require possession of the Property, including a default in the payment of any monetary obligations of Lessee under this Lease and shall thereafter cghtinue to faithfully perform all such obligations that do not require possession of the Property; and (dd) y%ithin six (6) months after Leasehold Mortgagee shall have gained possession of the Property, Leasehold ;Mortgagee shall have employed an Acceptable Operator and shall continue to employ an Acceptable O erator throughout the Lease Term. (vi) If. the Leasehold Mortgagee. is .prohibi 'ed. by any process, or injunction issued by any court, or by reason of any action by any court having jurisdiction of any bankruptcy, debtor rehabilitation or insolvency proceedings involving Lessee from commencing, or prosecuting foreclosure or other appropriate proceedings in the nature thet'eof, the times specified in subparagraphs (iv) and (v) above for commencing or prosecuting such foreclo.;ure or other proceeding shall be extended for the period of such prohibition; provided that Leasehold Moitgagee shall have fully cured any default including a default in. the payment of any monetary obligations Of Lessee under this Lease, and shall continue to perform currently such obligations as and when the sane fall due, and provided that Leasehold Mortgagee shall diligently attempt to remove any such prohibition. (vii) The City Manager shall mail to leasehold Mortgagee a duplicate copy by certified mail of any and all notices which the Lessor may from lime to time give to or serve upon Lessee pursuant to the provisions of this,Lease; no notice by the City Manager to Lessee hereunder shall be deemed to have been given unless and until a copy thereof has been mailed to the Leasehold Mortgagee. (viii) Foreclosure of a Leasehold Mortgage or any sale thereunder, , whether by judicial proceedings or by virtue of any power of sale contained in the Leasehold Mortgage, or any conveyance of the Leasehold Estate to Leasehold Mortgagee by virtue or in lieu of the foreclosure or other appropriate proceedings in the nature thereof, shall not require the Lessor's consent or constitute a breach of any provision of, or a default under this Lease. Upon such foreclosure, sale or conveyance, the Lessor shall recognize Leasehold Mortgagee, or any other foreclosure sale purchaser, as tenant hereunder; provided, that Leasehold Mortgagee or any such foreclosure sale purchaser shall qualify as or shall employ an Acceptable Operator within six (6) months of the date of such foreclosure, sale or conveyance, and shall continue to qualify as or employ an Acceptable Operator throughout the Lease Term. Further, provided, Page 29 of 68 1 that in the event there are two or more Leasehold Mortgagees or foreclosure sale purchasers (whether the same or different Leasehold Mortgagees), the Lessor shall have no duty or obligation whatsoever to determine the relative, priorities of such Leasehold Mortgages or the rights of the different holders thereof and/or foreclosure sale purchasers. (ix) Subject to the restrictions and limitations imposed on the Lessor by the Charter of the City of Miami and the provisions of Section 11.12, Lessor and Lessee shall cooperate in including in this Lease by suitable amendment from time to time any provision which may be requested by any proposed Leasehold Mortgagee, or may otherwise be reasonably necessary; to implement the provisions of this Section 11.12; provided, however, that any such amendment shall not in any way affect the Lease Term. (x) Notwithstanding that this Lease otherwise contemplates that4 et Insurance Proceeds or Net Condemnation Proceeds shall be deposited with an escrow agent and ,tiS`bursed pursuant to the terms of the escrow agreement with such escrow agent, whenever the Leasehold, Estate shall be encumbered by a Leasehold Mortgage during the Lease Term, all such Net Insurance Pyoeeeds or Net Condemnation Proceeds shall be'deposited With and disbursed by such Leasehold Mortgage pursuant to its customary and commercially reasonable procedures. 11,12.2. No Waiver of Lessee's Obligations or Lessor's Rights. Nothing contained herein or in any Leasehold Mortgage shall be deemed/Or construed to relieve Lessee from the full and faithful observance and performance of its covenants, cdd'nditions and agreements contained herein, or from any liability for the non -observance or non-performance thereof; or to require or provide for the subordination to the lien of such Leasehold Mortgage of any estate, right, title or interest of the City in or to the Project, the Property or this Lease. Nothing in this Lease/hall be deemed an agreement on the part of the Lessor to subordinate its fee simple interest in the Propef'ty to the lien of any Leasehold Mortgage placed on the Leasehold Estate. ARTICLE XII ` COMPLIANCE WITH LAWSr/ Section 12.1 . Compliance with Laws. Lessee shall, at Lessee's sole cost and expense, comply with all regulations of all Applicable Laws now in force, or which may hereafter be in force, pertaining to Lessee or its use of the Property, and shall faithfully observe in the use of the Property or in the performative of any alterations (including, without limitation, Lessee's work) all Applicable Laws now in force op'which may hereafter be in force. Lessee shall indemnify (and such indemnity will survive the terminatytin or expiration of the Lease for a period of ' five (5) years), defend and save Lessor harmless from penalties, fines, costs, expenses, suits, claims, or damages resulting from Lessee's failure to perform its obligations in this Lease. ARTICLE XIII ENVIRONMENTAL LIABILITY Section 13.1 .Definition of Terms. For purposes of this Article XIII the following terms shall have the meaning attributed to them herein: '' . 13.1.1 "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,/compounds, pesticides, petroleum products including crude oil and any fraction thereof, asbestos containing materials or other similar substances or materials which are regulated or controlled by, under orl' pursuant to any federal, state or local statutes, laws, ordinances, codes, rules, regulations, orders or degrees including, but not limited to, all Applicable Laws. 13.1.2 "Environmental Laws" shall it{clude, but shall not be limited to, the Comprehensive Environmental Response, Compensation and/Liability Act of 1980, as amended by the Superfund Amendment and Reauthorization Act of 1986J("Sara"), 42 U.S.C. §9601, et seq. (hereinafter collectively "CERCLA"); the Solid Waste Disposal Act, ai amended by the Resource Conservation and Recovery Act of 1976 ("RCRA") and subsequent Hazardouh and Solid Waste Amendments of 1984, also known as the 1984 "RCRA" amendments, 42 U.S.C. §9661, 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, 15 U.S.C. §2601 et seq.; the Feder 1 Insecticide, Fungicide, and Rodenticide Act ("FIFRA"), as amended, 7 U.S.C. §I36-136y; the Emerge c,.Planning and Community Right -to -Know Act of 1986 ("EPCRTKA" or EPCRA"), as amended, 42 U.S.C. §11001,,et seq. (Title II1 of Sara); the Occupational Page 30 of68 Safety and Health Act of 1970 ("OSHA"), as amended, 29 U.S.C. §651, et seq.; any similar state statute, including without limitation Chapters 252,255,376,403,442, Florida Statutes, as amended; and the regulations promulgated thereunder, and any other local laws regulations, including,but not limited to Chapter 24, Environmental Protection, of the Code of Miami -Dade County, Florida, as all of the foregoing„ may be amended, modified, supplemented, superseded or replaced at any time during the Term, that govern' or relate to: (i) The existence, cleanup and/or remedy of contamination of the Property by Hazardous Materials; (ii) The protection of the environment from spilled, deposited or otherwise emplaced contamination by Hazardous Materials; (iii) The control of Hazardous Materials; or (iv) The use, generation, discharge, transportation, treatment, removal or recovery of Hazardous Materials. 13.1.3 "Costs" shall mean all costs incurred in connection with correcting any violations of any Environmental Laws and/or in connection with the clean -tip of contamination by Hazardous Materials on the Property. • • 13.1.4"Clean Up" shall mean any remediation and/or disposal of Hazardous Materials at or from the Property, which is ordered by any federal, state, or local environmental regulatory agency. 13.1.5"Underground Storage Tanks" shall mean any fuel oil, petroleum or as underground storage tanks which may be located on the Property ("USTs"). / Section 13.2 Lessee's Environmental Covenants. / The Lessee shall not cause or permit any Hazardous Materials to be brought upon, treated, stored, disposed of, discharged, released, produced, manufactured, generated, refine or used upon, about or beneath the Property or any portion thereof by the Lessee, its agents, employees,ontractors, Lessees, or invitees except as may be customarily used and required to conduct marina and rest urant operations and in connection with any other Permitted Uses. . Lessee shall not permit any activities on the Property that would violate Environmental Laws. If Lessee should breach this covenant, 'Lessee shall take all actions nee tsary to comply with all Environmental Laws and shall, at Lessee's sole cost and expense, perfo any Clean Up. Lessee's obligation under this section shall survive the expiration or earlier terminatio 'of this Lease for a period of one (1) year. 13.2.1 Environmental Testing Obligations Lessee shall conduct a Phase Two Environmental Assessment 4hd soil analysis of the Property before and after the Lease Term (or Renewal Term) to determine if if as left any Hazardous Materials contaminants on the.Property. If contamination by Hazardous Materials found to be left on the Property, to the extent such contamination originated upon the Property arising from or caused by the presence, in or about the Property, of any Hazardous Materials placed on or about thtVProperty by Lessee, or its agents, employees or Assignees, or at Lessee's direction, or by Lessee's failure to comply with all applicable Environmental Laws (and not as a consequence, for example, of migration of contamination from nearby properties) during the Lease Term, Lessee shall, at its sole cost/and expense, pay to clean up the contamination of such Hazardous Materials, subject to the limitations within Section 13.4 herein. Additionally, upon Lessor's request (but not more frequently than once during any five year period during the Lease Term, unless the City has a reasonable basis to believe that contamination by Hazardous Materials in violation of applicable Environmental Laws, then exists), Lessee shall conduct such soil analysis tests the City may require from time to time during the Lease "Perm and Renewal Term, if any; Lessee shall be responsible for the cost of any such tests Section 13.3 Representation by Lessor. The Lessor represents and warrants that no lawsuits, claims, legal or administrative, have been brought against Lessor, in connection with the environmental condition of the Property or the USTs as a result of the Lessor's or any prior Lessee's use or occupancy of the Property, nor is Lessor aware of the existence of any Hazardous Materials thereon, except as may be present in connection with the USTs and/or the asbestos containing materials as expressly provided for herein. Section 13.4 Lessee's Indemnification. Lessee shall indemnify, protect, defend and hold Lessor free and harmless from and against any and all suits, actions, claims, regulatory actions, liabilities, penalties, losses, injuries, and expenses, including attorney's fees, resulting from the death or injury to any person, destruction or damage to Page 31 of 68 property, arising from or caused by the presence, in or about the Property, of any Hazardous Materials placed on or about the Property by Lessee, or its agents, employees or Assignees, or at Lessee's direction, or by Lessee's failure to comply with all applicable Environmental Laws. Section 13,5 Asbestos. The Lessee acknowledges that prior to the Effective Date, the Lessee 'has undertakenan environmental site assessment of the Property and accordingly, the Lessee knows that there may be asbestos containing materials ("ACM") in the form of ceiling tiles, plaster walls and roofing material. The Lessee shall, at Lessee's sole cost and expense, Clean Up any such ACM in the event that as a result of building renovations or modifications such ACM becomes friable. Section 13.6 Survival of Lessee's and Lessor's Obligations. The respective rights and obligations of Lessor and Lessee under this Article XIII shall survive the expiration or termination of this Lease for a period of one (1) year. Section 13.7 Cost of Environmental Remediation, The Parties hereto shall be responsible for the cost of any environmental remediation or` mitigation within the Property and the Submerged Lands on the following basis: (i) Lessee's initial liability to satisfy environmental permitting requirements, including any environmental remediation or mitigation required as a condition to such permit, or to Clean Up any pre-existing contamination by Hazardous Materials in accordance with Applicable Law, provided herein shall be One Million Dollars ($1,000,000), and (ii) In the event the cost of remediation exceeds S1,000,000, the amount which exceeds $1,000,00 will be split on a 50/50 basis between the Lessor and the Lessee (provided that Lessor may elect to offset the 50% share of the Lessor therefore against Rent thereafter coming due hereunder). One hundred/percent (100%) of the remediation costs paid by Lessee's remediation will be counted towards the Equity Contribution and the Minimum Level of Investment. The Lessee shall be required to submit reasonably acceptable documentation to the Lessor in order to facilitate the Lessor's verification Of Lessee's expenditures for any such remediation costs. ARTICLE XIV DAMAGE OR DESTRUCTION OF PROPERTY t/ Section 14.1 Definitions. For the purposes of this Article XIV, the following/words shall have the meanings attributed to them in this Section 14.1: (a) "Completely Destroyed" means the destruction of the safe, leasable use or occupancy of a substantial portion of the Property (excluding the Parking Facilities Retail Area), as determined by Lessee in its sole discretion, under this Lease Which damage cannot reasonably be repaired, restored or replaced within one hundred and eighty (180) calendar days from the date on whichthe damage. occurred. /. (b) "Partial Destruction" means any damage to the Property (excluding the Parking Facilities Retail Area) which damage can reasonably be repaired, restp(red or replaced within one hundred eighty (180) calendar days from the date on which the damage occurred, Section 14.2 Lessee's Duty to Repair, Restore or Replace the Prope/tv After Damage. In the event of damage by fire or otherwise of the Property (excluding the Parking Facilities Retail Area) including any machinery, fixtures or equipment which is a part of,t e Property, the Parties agree as follows: / (i) In the event of Partial Destruction, within sixty/(60) calendar days of the damage (subject to reasonable delay and/or Force Majeure), the Lessee shall use the Net Insurance Proceeds available for that purpose, together with Lessees own funds (if the Net Insurance Proceeds are insufficient) to commence and diligently pursue to completion within one hundred eighty (180) calendar days from the date the damage occurred (subject to reasonable extension and/or Force Majeure), the repair, restoration or replacement of the damaged or destroyed portion of the Property ("Restoration Work"), and this Lease shall remain in full force and effect, with no abatement in Rent, i (ii) In •the event the Property (excluding/ the Parking Facilities Retail Area) is Completely Destroyed at any time during the Lease Term, inclusive of any Renewal Term, the Lessee,. in its sole discretion, shall have the option (a) at the Lessee's sole cost and expense (together with Net Insurance Proceeds available for that purpose), to commence and diligently pursue to completion the Restoration Work, in accordance with the provisions of Section 14.3 below, and Lessee shall complete the Restoration Work within twelve (12) months from the date Page 32 of 68 the damage occurred (subject to reasonable delay and/or Force Majeure) and this Lease shall remain in full force and effect, with no abatement in Rent, or (b) to elect not to undertake the Restoration Work by providing written notice to Lessor and in which event this Lease shall terminate, and the Lessee shall, at the Lessee's sole cost and expense, (but using along with the Lessee's own funds, Net Insurance Proceeds available for that purpose) deliver possession of the Property to Lessor free and clear of all debris and Lessor and Lessee shall each be released thereby from any further obligations hereunder accruing after the effective date of such ; termination, except that such release shall not apply (aa) to any Rent or Additional Rent or other/ sums accrued or due (bb) Lessee's obligations regarding surrender of the Property including the removal of debris, and (cc) environmental liability as provided for in Article XIII. (iii) In the event the Property (excluding the Parking Facilities Retail Area) is Completely Destroyed at any time during the last Lease Year of the Lease Term (inclusive of any Renewal Term), and Lessee has not timely exercised any applicable option to extend the Lease Term for the next succeeding Renewal Term, if any, then.either Party, in its sole discretion, shall have the right to terminate this Lease by giving written notice.to the other Party within ninety (90) days from the date the damage occurred. In the event this Lease is terminated as provided herein, the Lessee shall, at the Lessee's sole cost and expense, (but using along•with the Lessee's own funds, Net Insurance Proceeds available for that purpose) deliver possession of the Property to Lessor free and clear of all debris and Lessor and Lessee shall each be released thereby from any further obligations hereunder accruing after the effective date of such termination, except that such release shall not apply (aa) to any Rent or Additional Rent. or other sums accrued or due (bb) Lessee's obligations regarding surrender. of the Property including the removal of 'debris, and (cc) environmental liability as provided for in Article XIII. Section 14.3 Performance of Restoration Work. In the event Lessee undertakes any Restoration Work in accordance with the provisions of this Article, such Restoration Work by Lessee shall be performed as substantially as reasonably possible to the condition that existed immediately prior to the damage, and shall be performedin accordance with the provisions of Article VI applicable to the construction of the initial Leasehold hriprovements, to the extent reasonably possible, and subject to changes in Applicable Law, including, without limitation, building codes. Lessor hereby acknowledges and agrees that Lessee's obligations hereufider and the time periods set forth above are subject to Force Majeure, and reasonable extensions, including, without limitation, based on the severity of the damage, time required for adjustment of insurance proceeds, preparation of construction drawings, obtaining building permits, and the bidding out' of the construction work and engagement of a general contractor. Section. 14.4 No.Right to Terminate. Except for the Lessee's right to terminate this Lease inccordance with the provisions of Subsections 14.2(ii)(b) and (iii), Lessee waives the provisions of ,any statute, code or judicial decision which grants Lessee the right to terminate this Lease in the event of,.ljamage or destruction of the Property. Section 14'.S Lessee's Riuht to Terminate. If Lessee or Lessor elects to exercise the option isven under Subsections 14.2 ii or(iii), respectively, to terminate this Lease, then •any and all Net/Insurance Proceeds paid for damage or destruction of.the Property shall be applied as follows: (i) First toward debris removal; and (ii) Second, the balance of the proceeds; if any, after payment of any Rent and/or Additional Rent due through the effective date of terrination, shall be paid as follows: (i) to Lessee to the extent such Net Insurance Proceeds are attributable to damage to the Leasehold Improvements and to any trade fixtures, furnishings, equipment/or other personal property of Lessee; and (ii) to Lessor to the extent such Insurance Proceeds are attributable to damage to any buildings or structures on the Property constructed prior to the Possession Date (exclusive of damage to any Leasehold Improvements which Lessee shall have made to any such existing buildings or structures). . Section 14.6 Payment for Construction of the Restoration Work, To the extent this Lease is not terminated pursuant to the terms of Section 14.2, above, then Net Insurance Proceeds shall be applied by the Parties to the payment of the cost of the Restoration Work (pursuant to this Article and Section 9.3) to restore the Property (excluding the Parking Facilities Retail Page 33 of 68 Area). The Net Insurance Proceeds shall be paid out, the Restoration Work shall be performed, and the Lessee shall make additional deposits with an escrow agent, if any are required, all in accordance with Section 9.3, as may be applicable Section 14.7 Collection of Insurance Proceeds, The Lessor shall in no event be responsible for the non -collection of any insurance proceeds under this Lease but only for insurance money that shall come into its hands. Section 14.8 Unused Insurance Proceeds and Deposits. . In the event that following the substantial completion of any Restoration Work, any Net Insurance/ Proceeds or sums deposited with an escrow agent or Lessor' in connection with the Restoration Work shall / remain in the hands of an escrow agent or the Lessor, if the Parties have agreed to allow the Lessor to hold the insurance proceeds until completion of the Restoration Work, and if the Lessee shall not then be in default under this Lease in respect of any matter or thing of which notice of default has been served on•,'the Lessee, following the expiration of any applicable cure period following notice, then the remaining funds shall be applied first towards any unpaid Rent, and the balance paid to the Lessee, within thirty (30) days following the substantial completion of any such Restoration Work. • ARTICLE XV EMINENT DOMAIN Section 15.1 Total Condemnation. In the event that all of the Property (or such portion thereof as shall, in the reasonaln/le discretion of Lessor or Lessee, render it economically unfeasible to maintain in effect this Lease/for its intended purpose) shall be taken for any public purpose by the right of condemnation, the exerci0 of the power of, eminent domain or shall be conveyed by the Lessor and Lessee acting jointly to avoid proceedings of such taking, the Rent and money to be treated as Additional Rent pursuant to this Lease shall be prorated and paid by the Lessee to the Date of Taking or conveyance in lieu thereof, and this Lease shall terminate and become null and void as of the Date of Taking or such conveyance; and the amount of damages resulting to Lessor and Lessee, respectively, and to their respective interests in and to the Property, the Leasehold Improvements, and this Lease, taking into account the Agreed Allocation Principles (as such term is defined below) shall be separately determined and computed by the court having%jurisdiction and separate awards and judgments with respect to damages to Lessor and Lessee, respectively, and to each of their .respective interests, shall be made and entered , /r In the event that a .court shall make a single. Net Condemnation" Award without separately determining the' respective interests of Lessor and Lessee, and if Lessor aria Lessee shall not agree in writing as to their respective portions of an award within twenty (20) days after the date of the final determination by the court of the amount of it, Lessor and Lessee. agree to sy; mit the matter to the court on • stipulation for the purpose of a judgment determinative of their respective��shares, ,in accordance with the Agreed Allocation Principles. In the event for any reason the trial judge refuses to permit a determination by judgment, then the respective interests of Lessor and Lessee shall be de,(ermined by arbitration under the provisions set forth in Section 16.6 of this Lease, on the basis of the following premises (the "Agreed Allocation Principles"): the Lessor shall be entitled to receive the then value of its fee interest in the Property, assuming that such fee interest shall be subject to this Lease {,land all of the terms and conditions thereof), which a buyer willing but not obligated to buy, would pay therefore in an arms length transaction.. Lessee shall be entitled to the then value of its Leasehold Estate and the Leasehold Improvements, which a buyer willing but not obligated to buy, would pay therefore in an arin's length transaction. In no event shall Lessee be entitled to compensation for any fee simple ownership; interest in the Property at the time of condemnation. Section 15.2 Partial Condemnation. (a) In the event less than all of the Property shall 'be taken for any public use or purpose by the right or the exercise of the power of eminent domain, or shall' be conveyed by the Lessor and Lessee acting jointly to avoid proceedings of such taking, and Lessee shall determine in its reasonable discretion that it is economically feasible to maintain in effect this Lease, 'then this Lease and all the covenants, conditions and provisions hereunder shall.be and remain in full force and effect as to all of the Property not so taken or conveyed (except as provided in Section 15.5). Lessee shall to the extent the proceeds of the Page 34 of 68 Net Condemnation Award are made available to it, pursuant to the terms hereof, remodel, repair and restore the Leasehold Improvements on the Property so that they shall be reasonably comparable to Leasehold Improvements on the Property prior to the condemnation, taking into consideration the fact of the condemnation; provided, however, that in so doing, Lessee shall not be required to expend more than the amount of any Net Condemnation Award actually received by Lessee. (b) The Net Condemnation Award allowed to Lessor and Lessee shall be paid to and received by the Parties as follows: (i) There shall be paid to the Lessor the then value of the portion of the Property so taken, assuming that such portion of the Property shall be subject to this Lease (and all of the terms and conditions thereof), which a buyer willing but not obligated to buy, would pay therefore in an arms length transaction. (ii) There shall be paid to the Lessee the then value of the portion of the Leasehold Estate and the Leasehold Improvements so taken, which a buyer willing but not•obligated to buy, would pay therefore in an arm's length transaction; • (iii) . There shall be paid to the Lessee the amount required to complete the remodeling and repairs to the Property and the Leasehold Improvements thereon, required as a result of such taking; • (iv) The Lessor and Lessee shall be paid portions of the • balance of the Net Condemnation Award or awards, if any, which are allocable to and represented by the value of their respective interest in the Property (consistent with the agreed allocation principles set forth in subparts (i) through (iii), above), as found by the court in its condemnation award. In the event that a court shall make a single Net Condemnation Award without separately determining the respective interests of Lessor and Lessee, and if Lessor and Lessee shall not agree in writing as to their respective portions of such award within twenty (20) days after the:. date of the final determination by the court of the amount of it, Lessor and Lessee agree to submit the matter to the court on stipulation for the purpose of a judgment determinative of their/respective shares, in accordance with the premises set forth in subparts (i) through (iii), above, In the event for any reason the trial judge refuses to permit a determination by judgment, then the respective interests of Lessor and Lessee shall be determined by the arbitration provisions set forth under Section 16.6 of this Lease. . Section 15.3. Adjustment of Rent Upon Partial Taking. In the event a part of the Property shall be, taken for any public use or purpose by the exercise of the power of eminent domain, or shall be conveyed by Lessor and acting jointly to avoid proceedings of such taking, then Rent, and money to be treated as Additional Rent pursuant to this Lease shall bepaid. by Lessee to .the Date of. Taking.or conveyance. in.lieu�thereof, and after such date the Minimum Base Rent for the remainder of the Property shall be reduced in the same proportion as the reduction in the Fair Market Rent as a consequence of such taking/as determined in accordance with an appraisal conducted pursuant to the procedures set forth in Section q'3.2, above. Section 15.4. Deposit of Condemnation Award with Escrc'w Agent. Unless the effect of a condemnation proceeding shallrbe to terminate this Lease by operation of law or as provided in Section 14.2 above, any Net Condemnation Award made in respect to the Property in a condemnation proceeding shall be deposited with an escrgq{v•agent selected by the Lessor and Lessee escrow agent) to be disbursed for the cost of restoring the ProlSerty and for other related purposes. Section 15.5. Temporary Taking. In the event that all or any portion of the Property shall be taken by the right of condemnation or the exercise of the power ,of eminent domain for governmental use or occupancy for a temporary period, this Lease shall not terminate and Lessee shall continue to perform and observe all of its obligations (including the obligation to pay Rent as provided throughout this Lease) as though the temporary taking had not occurred except only to the extent that it may be prevented from so doing by the terms of the order of the authority which make the temporary taking or by the conditions resulting from the taking, including the loss of its possession of all or any part of the Property. In the event the taking for governmental occupancy is for a period entirely within the term of this Lease, then Lessee shall be entitled to receive the entire amount of any Net Condemnation Award made for the taking, whether paid by way of damages, Rent or otherwise. If the period of governmental occupancy extends beyond the termination of the Lease Term, the Lessor shall only be entitled to receive that portion of the Net Condemnation Award allocable to the period beyond the termination of the Lease Term. The amount of any Net Condemnation Award Page 35 of 68 payable to Lessee, on account of a temporary taking of all or any part of the Leasehold Improvements, shall be deemed a part of the Lessee's Leasehold Estate for all purposes in this Lease. If the Net Condemnation Award does not separately determine the amount applicable to, the taking of the interest of the Lessor in this Lease and in the Leasehold Improvements and if Lessor and Lessee shall not agree in writing as to the proportion of the award so applicable to the respective Parties, then Lessor and Lessee shall submit the matter to the court on stipulation for the purpose of a judgment determinative of the interest of the Parties in accordance with the terms of this Section 15.5. In the event for any reason the trial judge refuses to permit a determination by judgment, then the respective interests of Lessor and Lessee shall be determined by the arbitration provisions set forth. under Section 16,6 of this Lease. ARTICLE XVI LESSEE DEFAULTS & LESSOR REMEDIES FOR DEFAULT Section 16.1 Lessee Default. The occurrence of any one or more of the following events is deemed a "Lessee Default:" (a) If the Lessee defaults in the due and punctual payment of any installment of Minimum Base Rent, Percentage Rent or any other sums required to be paid hereunder as Additional Rent, as and when due and payable in accordance with this Lease, and such default continues for more than (10) ten days following receipt of written notice from Lessor; (b) Except with respect to an event of Force Majeure, periodic tenant vacancies, periodic repair and refurbishment to the Leasehold Improvements, periods of time required for insurance adjustments and reconstruction following casualty or partial taking, in the event Lessee shall cease to operate its business, unless permitted by Lessor in connection with alterations or renovations, for a period of thirty (30) consecutive days; (c) In the event a petition in bankruptcy under any present or future bankruptcy laws (including ,but not limited to reorganization proceedings or voluntary insolvency filing) be filed by or against Lessee and such petition is not dismissed within ninety (90) days from the filing thereof, or in the event Lessee is adjudged a bankrupt; (d) In the event an Assignment for the benefit of creditors is Made by Lessee, except as provided in Section 11.3(a); (e) In the event of an appointment by any court of a receiver or other court officer of Lessee's Property and such receivership is not dismissed within ninety (90) days froin the date of such appointment; (f) In the event Lessee removes, attempts to remove, or ;permits to be removed from the Property, except in the usual course of trade, the Leasehold Improvements (or any furnishings, fixtures, and equipment).installed or placed upon the Property by the Lessee during the Lease Term; (g) In the event Lessee, before the expiration of the term of this Lease, and without the written consent of Lessor, vacates the Property or abandons the possession thereof (except with respect to an event of Force Majeure, and excluding periodic tenant vacancies, periodic repair and refurbishment to the Leasehold Improvements, periods of time required for insurance adjustments and reconstruction following casualty or partial taking), or uses the same for purposes other than the purposes for which the same are hereby leased, or ceases to use the Property for the purposes herein contained; (h) In the event Lessee does not accept the adjusted Minimum Base Rent and Percentage Rent rates determined by the independent appraiser established for the Renewal Term after the conclusion of any dispute resolution process related thereto, (i) Subject to the rights of a Leasehold Mortgagee, pursuant to Section 11.12, above, in the event an execution or other legal process is levied upon a material portion of the goods, furniture, effects or other personal property of Lessee brought on the Property, or upon the interest of Lessee in this Lease, and the same is not satisfied, dismissed or bonded within sixty (60) days from such levy; or (j) In the event Lessee defaults in the due performance or observance of any material covenant, condition or provision of this Lease and suchdefault continues for more than sixty (60) days after written notice of the default from the Lessor to the Lessee, unless such default be one which cannot reasonably be cured within sixty (60) days and the Lessee within such sixty (60) day period shall have commenced and thereafter shall continue to diligently prosecute all actions necessary to cure such defaults, such failure shall constitute a Lessee Default." l/ Section 16.2 Page 36 of 68 Remedies of Lessor. (a) If any Lessee Default occurs, Lessor shall have the right after the expiration of the applicable cure periods. set forth in subsections (a) through (j) (each, a "Cure Period"), at the option of Lessor, to terminate this Lease upon providing fifteen (15) days written notice if the default has not been • cured by the expiration of such fifteen (15) day period. A Lessee Default shall be deemed to have occurred if the default has not been cured by the expiration of such fifteen (15) day period. Additionally, if any Lessee Default occurs, Lessor may, at its option, from time to time, without terminating this Lease, re-enter and re -let the Property, or any part thereof, as the agent and for the account of Lessee upon such terms and conditions as Lessor may deem advisable or satisfactory, in which event the rents received on such re letting shall be applied first to the expenses of such re -letting and collection including but not limited to, necessary renovation and alterations of the Property, reasonable attorneys fees, any real estate commissions paid, and thereafter toward payment of all sums due or to become due to Lessor hereunder, and if a sufficient sum shall not be thus realized or secured to pay such sums and other charges, at Lessor's option, Lessee shall pay Lessor any deficiency immediately upon demand therefore, notwithstanding that Lessor may have received periodic rental in excess of the periodic rental stipulated in this Lease in previous or subsequent rental periods, and Lessor may bring an'action therefore as such deficiency shall arise. Nothing herein, however, shall be construed to require Lessor to re-enter and re -let the Property in any event. Lessor shall not, in any event, be required to pay Lessee any surplus of any sums received by Lessor on a re -letting of said Property in excess of the Rent provided in this Lease. (b) If a Lessee Default occurs, Lessor shall have the right to obtain injunctive and declaratory relief, temporary and/or permanent, against Lessee or any acts, conduct or omissions! of Lessee, and to further obtain specific performance of any term, covenant or condition of this Lease, .' (c) l.f a Lessee Default occurs, Lessor shall have the right, at its option,,to declare the present value of the sum of all Rent (or any portion thereof) for the entire remaining Lease Term, and other indebtedness owing by Lessee to Lessor, if any (less the present value of the Fair Market Rent for the Property, determined as provided in Section 4.3.2, above, for the remaining Lease Term) immediately due and payable without regard to whether possession of the Property shall have bedn surrendered to or taken by Lessor, and may commence action immediately thereupon and recover judgment therefore. (d) If Lessee Default occurs, Lessor, in addition to other rights/and remedies it may have, shall have the right to remove all or any part of Lessee's personal property from the Property and any personal property removed may be stored in any public warehouse or else here at the cost of, and for the account of Lessee, and Lessor shall not be responsible for the care or safekeeping thereof whether in transport, storage or otherwise, and Lessee hereby waives any and a11' claim against Lessor for loss, destruction and/or damage or injury which may be occasioned by any of the aforesaid acts. (e) No such re-entry or taking possession of the Property/by Lessor shall be construed as an . election on, Lessor's part to terminate this Lease.unless, a.written notice' of.such intention is given to Lessee. Notwithstanding any such re -letting without termination, Lessor /i'nay at all times thereafter elect to terminate this Lease for such previous Lessee Default. Any sue re-entry shall be allowed by Lessee without hindrance, and Lessor shall not be liable in damages for a;ty such re-entry, or guilty of trespass or forcible entry. (f) Any Rent which may be due Lessor, whether by acceleration or otherwise as ,herein provided in this Article, shall include Minimum Base Rent, Percentage Rent and any other rents, costs and expenses denominated as Additional Rent in this Lease. I., . (g) It is expressly agreed that the forbearance on the part of Lessor in the institution of any suit or entry of judgment for any part of the Rent herein reserved to Lessor, shall not serve as a defense against nor prejudice a subsequent action for such Rent. .Lessee hereby expressly waives Lessee's right to claim a merger or waiver of such subsequent action in any previous suit or in the judgment entered therein. Furthermore, it is expressly agreed that claims for liquidated Minimum Base Rent and/or Percentage Rent may be regarded by Lessor, if it so elects, as separate/and independent claims capable of being separately assigned. 1. (h) . Any and all rights, remedies and o tions given in this Lease to Lessor shall be cumulative and in addition to and without waiver of, or in dero ation of, any right or remedy given to it under any laws now or hereafter in effect. Section 16.3 No Waiver by Lessor, i' The waiver (either expressed or implied by law) by Lessor of anydefault of any term, condition or covenant herein contained shall not be a waiver of any subsequent default of the same or any other term, condition or covenant herein contained. The consent or approval by Lessor to or of any act by Lessee Page37of68 requiring Lessor's consent or approval shall not be deemed to waive or render unnecessary Lessor's consent to or approval of any subsequent similar act by Lessee. No re-entry hereunder shall bar the recovery of rents or damages for the default or delay on the part of Lessor to enforce any right hereunder and shall not be deemed a waiver of any preceding default by Lessee of any term, covenant or condition of this Lease, or a waiver of the right of Lessor to annul this Lease or to re-enter the Property or to re -let same. Section 16.4 Late Payments. In the event any payment due Lessor under this Lease shall not be paid on the due date, Lessee agrees to pay, in addition to the payment then due, one-half (0.5%) percent of the amount due or the sum of One Hundred Dollars ($100), whichever is greater, for each day that the payment is late, ("Late Fee"), and in the event that any check, bank draft, order for payment or negotiable instrument given to Lessor for any payment under Lease shall be dishonored for any reason whatsoever not attributable to Lessor, Lessor, in addition to the Late Fee, shall be entitled to make an administrative charge to Lessee of One Hundred and 0/100 Dollars ($100.00), or the actual charge, to Lessor by Lessor's bank for dealing with such dishonored tender, whichever is greater. In the event that it shall be necessary for Lessor to give more than one (1) written notice to Lessee of any violation of this Lease, during the term hereof, Lessor shall be entitled to make an administrative charge to Lessee of One Hundred and 0/100. Dollars ($100.00) for each such subsequent notice after the first notice. Lessee recognizes and agrees that the charges which Lessor is• entitled to make upon the conditions stated in this section represent, at the time this Lease is made, a fair and reasonable estimate and liquidation of the costs of Lessor in the administration of the Property resulting from the events described which costs are not contemplated or included in any Rent, or other charges provided to be paid by Lessee to Lessor in this Lease. Any charges becoming due under this Section of this Lease shall be added to and become due with the late payment for which the charge was assessed and shall be collectible as a part thereof, Section 16.5 Remedies Cumulative. No remedy conferred upon or reserved to the Lessor or the Lessee shall be considered exclusive of any other remedy, but shall be cumulative and shall be in addition to every other remedy given under this Lease or existing at law or in equity or by statute; and every power and remedy given by this Lease to the Lessor or the Lessee may be exercised from time to time and as often as occasion may arise or as may be deemed expedient by the Lessor or the Lessee. No delay or omission of Lessor or Lessee to exercise any right or power arising from any default shall impair any right or power, norshall it be construed to be a waiver of any default or any acquiescence in it. Section 16.6 Arbitration. (a) Request to Arbitrate. The Parties hereby agree that, subject to the consent of the City Manager and the Lessee, which consent may be withheld by 'either party for any reason, any dispute, disagreement or controversy arising under this Lease, or with.respect to the interpretation or. enforcement of this Lease may be settled by arbitration. Either Party may request to arbitrate by providing written notice to the other Party setting forth the nature of the request to arbitrate. Within fifteen (15) days of receipt of such request to arbitrate, the other Party shall respond as to its agregtnent or disagreement to arbitrate. Failure of the other Party to respond shall be deemed denial of a requestto arbitrate. (b) Procedures. In the event arbitration isagreed to, the following procedures will govern any arbitration according to this Lease. • (i) Within ten (10) days of the Parties agreeing to arbitrate, each party shall designate an arbitrator. (ii) Within ten (10) days after the appointment of the two arbitrators, the two arbitrators shall meet and appoint a third arbitrator which. shall constitute the Arbitration Panel. (iii) Every member of the Arbitration Panel must be a member of the American Arbitration Association ("Member"). In addition to the foregoing criterion, each Member shall satisfy the following conditions: (i) no Member shall be a person' who is or has been an employee of either the Lessor or Lessee during the five (5) year period immediately preceding his or her appointment; (ii) each Member shall be neutral and independent of the Parties to this Lease; (iii) no Member shall be affiliated with either Parties' auditors; and (iv) no Member shall have a ;conflict of interest with (including, without limitation, any bias towards or against) a Party hereto. (iv) If either party shall fail to designate a Member within ten (10) days after receipt of the written notice from the other party, then such other party may request the President of the Florida Chapter of the American Arbitration Association to designate a Member, who, when so designated, shall Page 38 of 68 act in the same manner as if he had been the Member designated by the party so failing.to designate an arbitrator. (v) If the two Members appointed by the Parties are unable to agree upon the third Member within ten (10) days from the last date of designation, then upon the request of either of the two (2) Members, or either Party, such third Member shall be designated by the President of the Florida Chapter of the American Arbitration Association, who shall appoint such third Member within ten (10) days of the request. , (vi) A hearing.shall be commenced within thirty (30) days following the selection of the Arbitration Panel. The Parties shall each make a good faith effort to cooperate with each other in all respects in connection with the exchange of documents relevant to the subject dispute. A court:•reporter shall make a transcript of the hearing. The Parties and the Arbitration Panel shall use their best efforts to conclude the hearing within ten (10) days. The Parties shall be.entitled to such pre-trial discovery as they may agree, or as determined by the Arbitration Panel. The Arbitration Panel shall have;the right to question witnesses at the hearing, but not to call witnesses. The Arbitration Panel may grant,continuances only by the agreement of both Parties. The Arbitration Panel may render a decision at the close of the hearing, or may request briefs on any or all issues. Any and all such briefs, including replybriefs, shall be filed with the terms and on the schedule set by the Arbitration Panel, but in any event no later than forty- five (45) days following the commencement of the hearing, The Arbitration Panel shall render a determination within thirty (30) days from the conclusion of the hearing, and in the event briefs are submitted, within thirty (30) days after receipt of said briefs. If no determination is rendered within such time, unless the Parties agree otherwise, a new Arbitration Panel shall be selected as' described above, but the new Arbitration Panel shall render a determination solely upon review of the record of the hearing without a further hearing. (vii) All actions, hearings and decisions of the Arbitration Panel shall be conducted, based upon and in accordance with the Commercial Arbitration Rules of the American Arbitration Association. In determining any matter before them, the Arbitration Panel siiall apply the terms of this Lease, and shall not have the power to vary, modify or reform any terms or provisions of the Lease in any respect, No Arbitrator is authorized to make an award of punitive or exemplary damages. The Arbitration Panel shall afford a hearing to the Lessor and to the Lessee who shall each,,liave the right to be represented by counsel at such hearing and to call witnesses, and the right to submit evidence with the privilege of cross-examination on the question at issue. All arbitration hearings shall be held at a place designated by the Arbitration Panel in Miami -Dade County, Florida. rr (viii) The Arbitration Panel selected hereunder ',call agree to observe the Code of Ethics for Arbitrators in Commercial Disputes promulgated by the Aitnerican Arbitration Association and .. the American. Bar Association,. or any successor code... The .decision of a majority with respect to any matter referred to it under this Lease shall be final, binding and co,clusive on the Lessor and Lessee and enforceable in any court of competent jurisdiction. Together with`he determination, the Arbitration Panel shall provide a written explanation of the basis for the determintion. Each party shall pay the fees and expenses of the Member of the Arbitration Panel designated by stir h party, such parry's counsel and witness fees, and one-half (%) of all expenses of the third Member of t e Arbitration Panel. The decision of the Arbitration Panel will be final, and may be enforced accordi'g to the laws of the State of Florida and judgment upon the award rendered by the Arbitration Pael shall. be entered in any Court having jurisdiction thereof. ARTICLE XV/ ACCESS BY LEgSOR Section 17.1 Right of Entry. Lessor and Lessor's agents shall have the right tq enter the Property at all reasonable times upon not less than twenty-four hours prior notice to the Lesst?'e (except in the case of an emergency when no• notice is required), to examine the same. Lessee shall have the right to designate a representative of Lessee to accompany Lessor during any such entry upon the Property. If Lessee shall not be personally present to open and permit entry into the Property at any time when in the event of an emergency, an entry therein shall be necessary, Lessor or Lessor's agents may enter the same without in any manner affecting the obligations and covenants of this Lease. Nothing herein contained, however, shall be deemed or construed to impose upon Lessor any obligation, responsibility or liability whatsoever, for the care, maintenance or repair of the Property or any part thereof, except as otherwise herein specifically provided. Page 39 of 68 ARTICLE XVIII DAMAGE TO LESSEE'S PROPERTY Section 18.1 Loss and Damage. Lessor shall not be responsible for any damage to any property of Lessee (including without limitation appliances, equipment, machinery, stock, inventory, fixtures, furniture, improvements, displays, decorations, carpeting and painting), or of others located on the Property, nor for the loss of or damage to any property of Lessee, or of others by theft or otherwise, except as resulting from the actions of Lessor or Lessor's agents, employees, or representatives. Lessor shall not be liable for any injury or damage to persons or property resulting from fire, smoke, explosion, falling plaster, steam, gas, electricity, water, rain, or leaks from any part of the Property or from the pipes, appliances or plumbing works or from the roof, street or subsurface or from any other place by dampness or by any other cause of whatsoever nature. Lessor shall not be liable for any latent defect in the Property. All property of Lessee kept or stored on the Property shall be so kept or stored at the risk of Lessee only and Lessee shall hold Lessor harmlessfrom any and all claims arising out of damage to same, including subrogation claims by Lessee's insurance carriers, except as resulting from the actions of Lessor or Lessor's agents, employees, or representatives ARTICLE XIX HOLDING OVER, SUCCESSORS Section 19.1 Holding Over. ' In the event Lessee remains in possession of the Property after the expiration of the Lease Term, Lessee, at the option of Lessor, shall be deemed to be occupying the Property as a Less* at sufferance at a monthly rental equal to two (2) times the Minimum Base Rent and the Percentage Rept, payable during the last month of the Lease Term hereof. In addition, Lessee agrees to pay monthly: (a) one -twelfth (1/12) of the ad valorem taxes for the Property based upon the total ad valorem taxes payable for the Lease Year immediately prior to the Lease Year in which the expiration occurs; (b) the Monthly premium cost of insurance for which Lessee would have been responsible if this Lease had been renewed on the same terms contained herein; (c) all sales taxes assessed against such increased rent, arl (d) any and all Additional Rent otherwise payable by Lessee hereunder attributable to the period of sucl'holdover. Such tenancy shall be subject to all the other conditions, provisions and obligations of this Lease. Lessee's obligation to pay any rents or sums provided in this Lease shall survive the expiration or eaplier termination of this Lease. Section 19.2 Successors. i✓ All rights and liabilities herein given to, or imposed uponi/the respective Parties hereto shall extend to and bind the several respective heirs, executors, administrat4Srs, successors, and the assigns of the said Parties; and if there shall be more than one Lessee, they shale be bound jointly and severally by the terms, covenants and agreements herein. Nothing contained in.i/this Lease shall in any manner restrict Lessor's right to assign or encumber this Lease and, in the event 1 essor sells its interest in the Property and the purchaser assumes Lessor's obligations and covenants, Lessor shall thereupon be relieved of all further obligations hereunder. ARTICLE XX° EQUAL OPPORTUNITY & NON DISCRIMINATION Section 20.1 Equal Employment Opportunities. The Lessee agrees that during the Lease Terms(a) it will not discriminate against any employee or applicant for employment because of race, creed, colo, ', place of birth, religion, national origin, sex, age, marital status, veteran and disability status and will take affirmative action to assure that applicants are employed and that employees are treated during employment without regard to race, creed, color, place of birth, religion, national origin, sex, age, marital status/veteran and disability status; (b) post in conspicuous places, available to employees and applicants for employment, notices, the form of which is to be provided by the Lessor, setting forth provisions for this nondiscrimination clause; (c) in all solicitations or advertisements for employees placed by or on behalf of the Lessee shall state that all qualified applicants will receive consideration for employment withoutregard to race, creed color or national origin; and (d) if applicable, to send to each labor union or representative of workers with which the construction contractor has a collective bargaining agreement or other contract or understanding a notice, the form of which is to be provided by the Lessor, advising the union or representative of the Lessee's commitment and posting copies of the notice in a conspicuous places available to employees and applicants for employment. Section 20.2 Non -Discrimination. Page 40 of 68 Lessee represents and warrants to the Lessor that it will comply with Sections 18-188 through 18- 190 of the Code of the City of Miami Code, as amended, and incorporated herein by reference ("Code"), Lessee hereby represents and warrants that it does not and will not engage in discriminatory practices and shall not discriminate in connection with Lessee's use of the Property on'account of race, national origin, ancestry, color, sex, religion, age, handicap, familial status, marital status or sexual orientation. Furthermore, should the Lessee have existing or introduce membership rules for patrons at the Property that it will comply with the non-discrimination provisions incorporated within the Code, ARTICLE XXI MISCELLANEOUS Section 21. IAccord and Satisfaction. ' No payment by Lessee or receipt by Lessor of a lesser amount than the Rent herein stipulated to be paid shall be deemed to be other than on account of the earliest stipulated Rent, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as rent be deemed an 'accord •and satisfaction, and Lessor may accept such check or payment without prejudice to Lessor's` right to recover the balance of such Rent or pursue any other remedy provided herein or by law, ' Section 21.2 Entire Agreement; Amendments; Resolution of Conflicts. (a) This Lease, the RFP, the Proposal, and the Exhibits attached hereto and,forming a part thereof as if fully set forth herein constitute all of the covenants, promises, agreements,;' conditions and understandings between Lessor and Lessee concerning the Property and there are no coyenants, promises, conditions or understandings, either oral or written, between them other than as are herein set forth. Neither Lessor nor Lessor's agents have made nor shall be bound to any representations with respect to the Property except as herein expressly set forth, and all representations, either oral or written, shall be deemed to be merged into this Lease, No course of prior or future dealings between the parties or their officers, employees, agents or affiliates shall be relevant or admissible to supplement, explain or. vary any of the terms of this Lease. Acceptance of, or acquiescence in, a course of performance rendered under this or any • prior agreement between the Parties or their affiliates shall not be relevant or admissible to determine the meaning of any of the terms of this Lease. This Lease has been negotiate4 "at arm's length" by and between Lessor and Lessee, each having the opportunity to be represented by legal counsel of its choice and to negotiate the form and substance of this Lease, and therefore in co$struing the provisions of this Lease neither party will be deemed disproportionately responsible for draftOrnanship. 1 ' (b) Except as herein otherwise provided, the Parties m9 only amend, alter, change, or modify this Lease by execution of written instrument signed by the Part (c) If a conflict, error, ambiguity, or discrepancy arises bi tween the provisions of this Lease, the Proposal and the RFP, then the in resolving any matter between1`he provisions thereof (except where such an interpretation would result in a violation of Applicable Law)4t e provisions of this Lease shall take precedence over either the Proposal or RFP and the provisions of the RFP shall take precedence over the Proposal. Section 21.3 Independent Parties t`t It is understood and agreed by the Parties hereto that thisLease does not create a fiduciary or other relationship between Lessor and Lessee, other than Lessor and l,,essee or contracting parties, as applicable. Lessor and Lessee are and shall be independent contracting part, es and nothing in this Lease are intended to make either Party a general or special agent, joint venturer/;partner or employee of the other for any purpose. Section 21.4 Notices. Any notice by the Parties required to be given m1st be served by certified mail return receipt requested, or by hand. delivery, addressed to Lessor or LesseO at: If to Lessor at: City Manager City of Miami 444 SW 2nd Avenue, 10'h Floor Miami, Florida 33130 Page 41 of 68 If to Lessee at: With a copy to: City Attorney Office of City Attorney 444 SW 2nd Avenue, 96 Floor Miami, Florida 33130 City of Miami Dept, of Public Facilities Asset Management Division 444 SW 2nd Avenue, Suite 325 Miami, Florida 33130 With a copy to: All notices given hereunder shall be effective and deemed to have been given upoi receipt by the party to which notice is being given, said receipt being deemed to have occurred upon hand delivery or posting, or upon such date as the postal authorities shall show the notice to have been delivered, refused, or undeliverable, is evidenced by the return receipt or proof of deliver. Notwithstanding any other provision hereof, Lessor shall also have the right to give notice to Lessee in any other manner provided by law, If there shall be more than one Lessee, any notice required or permitted by the terms of this Lease may be given by or to any one thereof, and shall have the same force and effect as if given to all thereof. Section 21.5 Captions and Section Numbers. The captions, section numbers, and article numbers appearing in this Lease are inserted only as a matter of convenience and in no way define, limit, construe, or describe the scopeor intent of such sections or articles of this Lease nor in any way affect this Lease. Section 21.6 Partial Invalidity. // If any term, covenant or condition of this Lease or the application thereof to any person or circumstances shall, to any extent, be invalid or unenforceable, the remainde /of this Lease, the application of such term, covenant or condition to persons or circumstances other th•n those as to which it is held invalid or unenforceable, shall, not be affected thereby and each term, co. enant or condition of this Lease „` shall be valid and enforceable to the fullest extent permitted by law. � Section 21.7 Estoppel Certificate. Lessee agrees that it will, at any time and from time to t4" e, within ten (10) Business days following written notice by Lessor specifying that it is given pursuant o this Section, execute, acknowledge and deliver .to. Lessor a statement in writing certifying. that this. Lea ' is unmodified and in full force and effect (or if there have been modifications, that the same is in/full force and effect and stating the modifications), and the date to which the Minimum Base Rent, P'rcentage Rent and any other payments due hereunder from Lessee have been paid in advance, if any, and - tating whether or not there are defenses or offsets claimed by Lessee and whether or not to the best knowledge of Lessee, Lessor is in default in performance of any, covenant, agreement or condition container in this Lease, and if so, specifying each such default of which Lessee may have knowledge. The failu e of Lessee to execute, acknowledge and deliver to Lessor a statement in accordance with the provisions, if this Section within said ten (10) Business day period shall constitute Lessee Default hereunder and stall also constitute an acknowledgment by Lessee, which may be relied on by any person holding or prop' sing to acquire an interest in the Propertyor any part thereof or this Lease from or through the other party,/ hat this Lease is unmodified and in full force and effect and that such rents have been duly and fully p, id to and including the respective due dates immediately preceding the date of such notice and shall co titute, as to any person entitled as aforesaid to rely upon such statement, a waiver of any defaults which `iay exist prior to the date of such notice. It is agreed that nothing contained in the provisions of this Section shall constitute waiver by Lessor of any default in payment of Rent or other charges existing as Of the date of such notice and, unless expressly consented to in writing by Lessor and, Lessee shall still retain liable for the same. Lessor agrees that it will, at any time and from time to time, within fifteen (15) Business days following written notice by Lessee specifying that /it is given pursuant to this Section, execute, acknowledge and deliver to Lessee or any lender providing financing to Lessee, a statement in writing certifying that this Lease is unmodified and in full force(and effect (or if there have been modifications, that the same is in full force and effect and stating the modiillications), and the date to which the Minimum Base y Page 42 of 68 Rent, Percentage Rent and any other payments due hereunder from Lessee have been paid in advance, if any, and stating whether or not there are defenses or offsets claimed by Lessor and whether or not to the best knowledge of Lessor, Lessee is in default in performance of any, covenant, agreement or condition contained in this Lease, and if so, specifying each such default of which Lessor may have knowledge. The / ;failure of Lessor to execute, acknowledge and deliver to Lessor a statement in accordance with the J provisions of this Section within said thirty (30) Business day period shall constitute an acknowledgment' by Lessor, which may be relied on by any person holding or proposing to acquire an interest in dye Property, including, without limitation, any leasehold mortgage upon the Leasehold Estate, or any part thereof or this Lease from or through the other party, that this Lease is unmodified and in full force/and effect and that such rents have been duly and fully paid to and including the respective due dates immediately preceding the date of such notice and shall constitute, as to any person entitled as aforesaid to rely upon such statement, a waiver of any defaults which may exist prior to the date of such notice. Section 21.9 Waiver. Failure on the part of either Party to complain of any action or non -action on the part of She other, no matter how long the same may continue, shall never be deemed to be a waiver by such party 'of any of its rights hereunder. Further, it is covenanted and agreed that no waiver at any time of ,any of the provisions hereof by either party shall be construed as a waiver of any of the other provisions,' hereof, and that a waiver at any time of any of the provisions hereof shall not be construed as a waiver at any subsequent time of the same provisions. The consent or approval to or of any action by either party requiring such consent or approval shall not be deemed to waive or render unnecessary sµch consent or approval to or of any subsequent similar act by such party. Section 21.10 Time is of the Essence. Time is of the essence with respect to the performance of every provision of this Lease in which time of performance is a factor. Section 21.11 Governing Law. It is the intent of the Parties hereto that all questions with respect to the consifu'ction of the Lease and the rights and the liabilities of the Parties hereto shall be determined in accordree with the laws of Florida and that all disputes arising hereunder shall be heard and decided in Miami -Dade County, Florida. Section 21.12 Waiver of Counterclaims. Lessee shall not impose any counterclaim or counterclaims for damage '(except for compulsory counterclaims) in a summary proceeding or other action based on termination .or holdover, it being the intent of the Parties hereto that Lessee is strictly limited in such instances to bringing a separate action in the court of appropriate jurisdiction. The foregoing waiver is a material incGcement to Lessor making, executing and delivering this Lease and Lessee's waiver of its right to counterclaim (except for compulsory counterclaims) in .any summary proceeding or other.action based on termi jation or. holdover is done so knowingly, intelligently and voluntarily. •/ g Section 21.13 Waiver of Jury Trial. Lessor and Lessee hereby waive trial by jury in any action, proceeding or counterclaim brought by either of the Parties hereto against the other on, or in respect of, any matter whatsoever arising out of or in •any way connected with this Lease, the relationship of Lessor and Lessee hereunder, Lessee's use or occupancy of the Lease Property and/or any claim of injury or damage./ Section 21.14 Quiet Enjoyment. Upon the observance by the Lessee hereunder of all th'e terms, provisions, covenants and conditions imposed upon the Lessee, the Lessor covenants to the Lessee that the Lessee shall peaceably and quietly hold, occupy and enjoy the Property for the Lease Term vithout any interruption, disturbance or hindrance by the Lessor, its successors and assigns, or by persons q'laiming by, through or under the Lessor for the Property leased herein, or by persons with title superior to the Lessor, its successors and assigns. Section 21.15 Surrender of Possession. Upon the expiration or earlier termination of the Lease pursuant to the provisions hereof, the Lessee shall deliver to the Lessor possession of the Property in Food repair and condition, reasonable wear and tear excepted, 1 Section 21.16 Joint and Several Liability. If two or mare individuals, corporations, partnerships or other business associations (or any cotnbination of two or more thereof) shall sign this Lease as Lessee, or by virtue of a Transfer assume the rights and obligations of the Lessee hereunder, the liability of each such individuals, corporations, partnerships or other business associations (or any combination of two or more thereof) to pay Rent and Page 43 of 68 perform all other obligations hereunder shall be deemed to be joint and several, and all notices, payments and agreements given or made by, with or to any one of such individuals, corporations, partnerships or other business associations (or any combination of two or more thereof) shall be deemed to have been given or made by, with or all of them. Section 21.1.7 Third Party Beneficiary. Nothing contained in this Lease shall be construed so as to confer upon any other party the rights of third party beneficiary. Section 21.18 Radon. 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 informatig regarding Radon and Radon testing may be obtained from your county public health unit. Section 21.19 No Liability for Act of other Party Lessee shall not sign any contract, application for any license or permit or do anythin /tiat may fesult'in liability to the Lessor for any indebtedness or obligation of Lessee, unless express0 provided herein or approved in writing by the Lessor. Except as expressly authorized in writing, nett & Lessor nor Lessee shall make any express or implied agreement, warranties, guarantees or representati s or incur any ' debt, or represent that their relationship is other than Lessor and Lessee, unless otherwis agreed to herein for the management and operation of the Property and neither Lessor nor Lessee shall e obligated by or have any liability under any agreements or representations made by the other that are not expressly authorized as aforesaid. Lessor reserves the right, at its sole option, to refuse an agr ement for any Federal, State or local grants and loans when the acceptance of same by either Lessor/ r Lessee may impose a hardship upon Lessor or include obligations which extend beyond the Lease Te/fi. Section 21.20 Rights, Privileges and Immunities: Covenants. /� The Lessee shall have, and the Lessor shall fully cooperate in pro'iding to the Lessee, for its use and enjoyment, all rights, privileges and immunities as shall from time to time be granted'or afforded by Federal, State or local law to restaurant operators or proprietors and/operators and proprietors of uses comparable to those included among the Permitted Uses. The Parties agree that each of the terms, covenants and conditions hereof agreed to be observed or performed by each party shall constitute concurrent conditions of ekchange. Section 21,21 City of Miami Hiring Lessee agrees to hire (i) at least sixty percent (6,0%) of its initial operating staff from City residents, during the period commencing as of the date 'Leasehold Improvements have been completed and continuing through third 'anniversary of the Effective Date; and (ii) thereafter, forty percent (40%) of its . operating staff from City residents. The foregoingrequirements shall not apply to Sub -lessees. Lessee also agrees to make good faith efforts to work in coordination with local employment services providers such as the South Florida Work Force and the City's Economic Initiatives and Access Miami programs to fill its entry level positions. / Section 21.22 Charitable Contribution Lessee shall make an annual charitable contribution of thirty thousand dollars ($30,000) every year of the Lease Term to help fund a c aaritable hospitality -related organization selected by Lessee in consultation with the City Manager. // Jsignature page follows] Page 44 of 68 , IN WITNESS WHEREOF, Lessor and Lessee 'have executed this Lease, or have caused the same to be executed, as of the date and year first above written. LESSOR: CITY OF MIAMI, a municipal corporation of the State of Florida By: Johnny Martinez City Manager ATTEST: By: Todd Hannon City Clerk APPROVED AS TO INSURANCE APPROVED AS TO FORM AND REQUIREMENTS: CORRECTNESS: By: By: Calvin Ellis, Director Risk Management Department Julie O. Bru City Attorney LESSEE: J By: GROVE BAY INVESTMENT GROUP, LLC, a Florida limited/lability company ATTESTED BY: By: Name Title Company Name By: Name Title Company Name Page 45 of 68 By: ! , Print Name Title CORPOR FE SEAL EXHIBIT "A" SCHEDULE OF LEASEHOLD IMPROVEMENTS Minimum Marina Renovations • Complete interior/exterior restoration of the two (2) hangar buildings to afford best utilization of available space for dry rack storage and other uses. • Construction/refurbishment of visually appealing concrete pavement design and construction`of marina/boatyard to meet appropriate vehicles and loads to result from proposed marina use. �/ • Complete dock/bulkhead restoration or replacement alongside marina in a manner homogeneous in appearance with the restoration of the adjoining bulkhead for the casual and formal restaurant portions of the Property. Minimum Casual Restaurant Renovations • Installation of outdoor covering to facilitate patio use. • Installation of air conditioning within the enclosed areas. • Complete renovation of restaurant according to federal, state and local regulations and code requirements. • • Complete dock/bulkhead restoration or replacement alongside casual restaurant in a manner homogeneous in appearance with the restoration of the adjoining bulkhead for the marina and formal restaurant portions of the Property. • All applicable ADA requirements and improvements. Minimum Formal Restaurant Renovations • Complete remodeling of the interior to reflect the appearance of modern restaurants. • Complete renovation of restaurant in compliance with all applicable federal, state and local regulations. • Structural modifications to windows so as to provide full height 'indows to improve waterfront visibility. • Repair of entire dock/bulkhead alongside formal restaurant in atmanner homogeneous in appearance with the restoration of the adjoining bulkhead for the`marina/casual restaurant portions of the Property. ' • All applicable ADA improvements. r' Dock Renovations ' • Construction of a fixed dock in front of formal restaurant portion of Property; • Renovation offmger pier at casual restaurant. Garage Retail • Build -out Parking Facilities Retail Area Page 46 of 68 EXHIBIT "B" GRAY SHELL STANDARDS ITO BE INCLUDED PRIOR TO EXECUTION{ Page 47 of 68 COMPOSITE EXHIBIT "CI" PROPERTY LEGAL DESCRIPTION (PARCEL 1) (MARINA/BOATYARD UPLANDS) A portion of Tract A of Dinner Key, according to the plat thereof as recorded in plat book 34, at page 2, of the Public Records of Miami Dade County, Florida and a portion of Section 22, Township 54 South, Range 41 East, Miami -Dade County, Florida, more particularly described as follows; Commence at the Southwest corner, of the Northwest %, of said Section 22; Thence South 02°24'44" East, along the Southerly extension of the West line of the NW 1/4 of said Section 22, for 436.51 feet; Thence North 86°27'43" East for 75.86 feet to a point labeled HL-78-C said point being a point of intersection with the U.S. Pier -Head Bulkhead line of 1939 as recorded in Plat Book 74, at Page 3, of the Public Records of Miami -Dade County, Florida, said line also being the Northwesterly line of T.I.1.F. Deed No. 19448 to City of Miami, recorded in Deed Book 3130, at Page 260,'ofthe Public Records of Miami -Dade County, Florida; Thence along said U.S. Pier-Head.Bulkhead line, for the following described four (4) courses; 1) Thence South 77°01'17" East, for 669.48 feet to a point labeled HL-78-B; 2) Thence North 74°08'10" East for 526,25 feet to a point labeled HL-78-A; 3) Thence North 43°08'20" East for 250.00 feet; 4) Thence North 12°08' 10" East for 88.25 feet; Thence North 45°44'46" West, departing the previously described line, for 3.75 feet to a point on the outside face of an existing Seawall; Thence along the outside face of said seawall for the following described twelve (12 ) courses; 1) Thence continue North 45°44'46" ;West for 12.58 feet; 2) Thence North 46°50'16" West for 262.72 feet to the Point of Beginning of the Hereinafter described parcel; 3) Thence North 47°06'49" West for 73.59 feet; 4) Thence North 02°02'56" East for 0.70 feet; 5) Thence North 47°07'52" West for 59.52 feet; 6) Thence North 43°12'49" East for 100.72 feet; 7) Thence South 46°47'08" East for 61,00 feet; 8) Thence North 88°45'00" East for 0.64 feet; 9)/Thence South. 47°14'37" East for 41.99 feet; 10) Thence North 61 °42'01" East for 21.07 feet; 11) Thence ;south 30°14'35" East for 2,75 feet; 12) Thence North 62°06'03" East for 5.43 feet to a point of intersection with the Southerly extension of an existing chain link fence; Thence along said chain Zink fence` and its southerly extension for the following described three (3) courses; I) Thence North 49°34'23" West for 26.67 feet; 2) Thence South 49°46'11" West for 14.07 feet; 3) Thence North 46°34'27" West for 48/90 feet to a point of intersection with the Southeasterly extension of the edge of an existing concrete slab; Thence along the previously described edge of concrete and its Southwesterly and Northerly extensions for the following descried five (5) courses; 1) Thence North 41°51'16" East for 19.89 feet; 2) Thene North 45°40'17" West for 20.02 feet; 3) Thence North 41°51'16" East for 10,30 feet; 4) Thence North/48°08'44" West for 26.07 feet; 5)Thence North .43°.1.7' 10" East for 63.60 feet to a.point of intersection w4h the Boundary line of the tract of land described under Exhibit A in that certain Lease Agreement recorded in Official Records Book 9916, at Page 1110, of the Public Records of Miami Dade County, Florida/Thence along the previously described Boundary line, and its Northerly extension, for the following described two (2) courses; 1) Thence North 76° 17'34" West for 63,38 feet; 2) Thence North 12°55'28" East for 138,99 feet to a point of intersection with the back of an existing concrete sidewalk; Thence Tong the back of said concrete sidewalk, for the following described twenty one (21) courses; 1) Thence North 47°44'58" West for 12,22 feet to a point of curvature of a circular curve concave to the Northeast;) Thence Northwesterly, along the arc of said curve to the right, having a radius of 98,00 feet and a central` angle of 16°31'40" for a distance of 28,27 feet to the point of tangency; 3) Thence North 31°13'18" West'for 14.48 feet to a point of curvature of a circular curve concave to the Southwest; 4) Thence Northwesterly, along the arc of said curve to the left, having a radius of 100.00 feet and a central angle of 11 °38'35",tor a distance of 20.32 feet to a point of tangency; 5) Thence North 42°51'53" West for 5.10 feet to a point,/of curvature of a circular curve concave to the Southwest; 6) Thence Northwesterly, along the arc of said curve to the left, having a radius of 33.00 feet and a central angle of 33°27'08" for a distance of 19.27 feet/to the point of tangency; 7) Thence North 76°19'O1" West for 64,42 feet; 8) Thence South 13°57'56" West for 1.47 feet; 9) Thence North 75'50'29" West for 25.93 feet; 10) Thence North 45°02'51" West for 18.i31 feet to a point of curvature of a circular curve concave to the' Southwest; 11) Thence Northwesterly, along the arc of said curve to the left, having a radius of 64.79 feet and a central angle of 11°21'21" for a distance of 12.84 feet to the point of tangency; 12) Thence North 56°24'12" West for 5.41 feet to a point of curvature of a circular curve concave to the Northeast; 13) Thence Northwesterly, along the arc of said curve to the right, having a radius of 23,50 feet and a central angle of 30°58'59" for a distance of 12.71 feet to the point of tangency; 14) Thence North Page 48 of 68 25°25'13" West for 6.96 feet to a point of curvature of a circular curve concave to the South; 15) Thence; Northwesterly, along the arc of said curve to the left, having a radius of 3.00 feet and a central angle of 51 °39' 10" for a distance of 2.70 feet to the point of tangency;'16) Thence North 77°04'23" West for 125.67 feet to a point of curvature of a circular curve concave to the South; 17) Thence Northwesterly, Westef•ly and Southwesterly along the arc of said curve to the left, having a radius of 10.15 feet and a central angI'e of 14°26'49" fora distance of 2.56 feet to the point of tangency; 18) Thence South 88°28'48" West for:17.55 feet; 19) Thence North 76°52'13" West for 28.42 feet; 20) Thence South 76°07'58" West for 40.18 feet to a point of curvature of a circular curve concave to the Northwest; 21) Thence Southwesterly,along the arc of said curve to the right, having a radius of 43.33 feet and a central angle of 09°48'56" for a distance of 7.42 feet to a point of intersection with a line parallel with and 95.00 feet Northwesterly of, as measured at right angles, the Northwesterly outside face of an existing building; Thence South 13° 01'32" West, along the j previously described line, for 135.78 feet; Thence South 12 46'52" West, departing the previously / described line, for 37.38 feet to a point of intersection with a line parallel with and 95.00 feet'Northwesterly ; of, as measured at right angles, the Northwesterly outside face of an existing building; Thence South 13 07'29" West, along the previously described line and its southerly extension, for 148.75 feet; Thence South 07°43'57" West for 9.81 feet; Thence South 49°47'35" West for 4.49 feet; Thence South 43°01' 12" East for 77.73 feet; Thence South 43°33'00" East for 54.15 feet; Thence South 43°26' 13" East far 4.55 feet; Thence South 48°06'57" East for 20.77 feet to a point of curvature of a circular curve concave to the northeast; Thence Southeasterly, along the arc of said curve to the left, having a radius of 374100 feet and a central angle of 09°28' 16" for a distance of 61.82 feet to the point of tangency; Thence South 57°35' 13" East for 23,28 feet; Thence South 80° 19'31 East for 172.00 feet; Thence South 79° 19' 15" ;East for 13.23 feet to a point of intersection with the back of an existing concrete sidewalk running along the north side of Pan American Drive; Thence along the back of said existing sidewalk and its northeasterly extension, for the following described five (5) courses; 1) Thence South 74°54'37" East for 28;,80 feet; 2) Thence South 77°42'57" East for 5.71 feet to a point of curvature of' a circular curve concave to` the Southwest; 3) Thence Southeasterly, along the arc of said curve to the right, having a radius of 222.00 feet and a central angle of 21°55'13" for a distance of 84.93 feet to a point on said curve; 4) Thence North 87°54'54" East for 5.28 feet; 5) Thence North 42°23' 11" East for 11.27 feet to the Point of Beginning. Containing 195,848 sq. ft. or 4.50 acres more or less. Page 49 of 68 LEGAL DESCRIPTION (PARCEL 2) (FORMAL RESTAURANT & RESTAURANT PARKING) A portion of Tract A of Dinner Key, according to the plat thereof as recorded in plat book 34, at page 2, of the Public Records of Miami Dade County, Florida and a portion of Section 22, Township 54 South, Range 41 East, Miami -Dade County, Florida, more particularly described as follows: Commence at the Southwest comer, of the Northwest 'A, of said Section 22; Thence South 02°24'44"!East, along the Southerly extension of the West line of the NW 'A, of said Section 22, for 436.51 feet; Thence North 86°27'43" East for 75,86 feet to a point of intersection with the U.S.•Pier-Head Bulkhead' line of 1939 as recorded in Plat Book 74, at Page 3, of the Public Records of Miami -Dade County, Florida, said point labeled HL-78-C and said line also being the Northwesterly line of T.I.1.F. Deed No. 19448`to City of Miami, recorded in Deed Book 3130, at Page 260, of the Public Records of Miami -Dade County, Florida; Thence along said U.S; Pier -Head Bulkhead line, for the following described four (4) courses; 1) Thence South 77°01'17" East, for 669.48 feet to a point labeled HL-78-B on the previously named plat; 2) Thence North 74°08'10" East for 526.25 feet to a point labeled HL-78-A on the previously named' plat; 3) Thence North 43°08'20" East for 250.00 feet to a point labeled HL-76 on the previously named plat; 4) Thence North 12°08' l0" East for 88.25 feet; Thence North 45°44'46" West, departing the previously described line, • for 3.75 feet to a point on the outside face of an existing Seawall; Thence along the;'outside face of said seawall for the following described fifteen (15 ) courses; 1) Thence continue North 45°44'46" West for 12,58 feet; 2) Thence North 46°50' 16" West for 262.72 feet; 3) Thence North 47°06'49" West for 73.59 feet; 4) Thence North 02°02'56" East for 0,70 feet; 5) Thence North 47°07'52" West for 59.52 feet; 6) Thence North 43°12'49" East for 100.72 feet; 7) Thence South 46°47'08" East for 61,00 feet; 8) Thence North 88°45'00" East for 0.64 feet; 9) Thence South 47°14'37" East for 41,99 feet; 10) Thence North 61°42'01" East for 21.07 feet; 11) Thence South 30°14'35" East for 2.75 feet;;12) Thence North 62°06'03" East for 87.88 feet to the Point of Beginning of the hereinafter described parcel; 13) Thence continue North 62°06'03" East for 114.64 feet to a point of curvature of a circular curve concave to the West; 14) Thence Northeasterly, Northerly and Northwesterly, along the arc of said curve to file left, having a radius of 75.00 feet and a central angle of 80°48'49" for a distance of 105.78 feet to th'e point of tangency; 15)7hence North 18°42'46" West for 101.33 feet to a point on the northerly right-of-way line of Chart House Drive as shown on the sketch of survey dated January 14, 1985 referred file No misc. 61-139 rev. and prepared by Schwebke & Shiskin and Associates and as shown on that Specific Ptfrpose Survey at Dinner Key Marina, prepared by Biscayne Engineering ; Thence North 76'03'06" West, long the previously described line, for 226.3.1 feet; Thence. South 39°08'26" West, departing the previous!, .described northerly right-of-way line, for 12.87 feet to a point on the northerly edge of pavement of Chart House Drive said point being on a circular curve concave to the Northeast and said point bears Soup 45°04'04" West from the center of said curve; Thence along the northerly edge of pavement of said Chart House Drive for the following described three (3) courses; 1) Thence Southeasterly along the arc of sai !curve to the left, having a radius of 273,78 feet and a central angle of 04°52'06" for a distance of 23.26/feet to a point; 2) Thence South 29°13'50" West for 21.82 feet to a point on a circular curve concavetfo the Northeast and said point bears South 38°44'40" West. from the center of said curve; 3) Thence Northwesterly along the arc of said curve to the Right, having a radius of 348.97 feet and a central angle of Q4°24'23" for a distance of 26.84 feet to a point of intersection with the Boundary line of the tract of land ,described under Exhibit A in that certain Lease Agreement recorded in Official Records Book 9916, at Page 1110, of the Public Records of Miami Dade County, Florida; Thence along the previously described Boundary line, and its. Northerly extension, for the following described two (2) courses; 1) Thence South f12°55'28" West for 152.77 feet; 2) Thence South 76°17'34" East for 63.38 feet; Thence North 43°17'I0" /rEast, departing the previously described boundary line, for 5.77 feet; Thence South 74°27'18" East for 13.19 feet to a point of curvature of a circular curve concave to the Southeast; Thence Southeasterly, along -the arc of said curve to the right, having a radius of 31.50 feet and a central angle of 33°37'09" East for a distance of 18.48 feet to the point of tangency; Thence South 40°50'09" East for 37.58 feet to a point on the northerly end of an existing C.B.S. wall; Thence South 49°09'51" West, along the northerly end of said existing C.B.S. wall for 0.43 feet to a point on the southerly face of said existing C,B,S, wall; Thence South 38°59'48" East, along the southerly face of said existing C.B.S. wall and its southerly extension, for 84.41 feet to the Point of Beginning. Containing 58,242 sq. ft, or 1.34 acres more or less. Page 50of68 LEGAL DESCRIPTION (PARCEL 3) (CASUAL RESTAURANT UPLANDS) A portion of Section 22, Township 54 South, Range 41 East, Miami -Dade County, Florida, more particularly described as follows: Commence at the Southwest corner, of the Northwest 'A, of said Section 22; Thence South 02°24'44' East, along the Southerly extension of the West line of the NW ''A of said Section 22, for 436.51 feet; Thence North 86°27'43" East, departing the previously described line, for 75.86 feet to a point labeled H4-78-C said point being a point of intersection with the U.S. Pier -Head Bulkhead line of 1939 as recorded;in Plat Book 74, at Page 3, of the Public Records of Miami -Dade County, Florida, said line also being the. Northwesterly line of T.I.I•F. Deed No. 19448 to City of Miami, recorded in Deed Book 3130, at Page 260, of the Public Records of Miami -Dade County,. Florida; Thence along said U.S. Pier -Head Bulkhead line, for the following described four (4) courses; 1) Thence South 77°01'17" East, for 669.48 feet tb a point labeled HL-78-B; 2) Thence North 74°08'10" East for 526.25 feet to a point labeled HL-78-A; 3) Thence North 43°08'20" East for 250.00 feet to a point labeled HL-76; 4) Thence North 12°08'10" East for 88.25 feet to a point of intersection with the southerly extension of the outside face of an existing Seawall; Thence along the outside face of said seawall and its southerly extension for the following described twelve (12) courses; 1) Thence North 45°44'46" West for 16,33 feet; 2) Thence North 46°50'16" West for 262.72 feet; Thence North 47°06'49" West for 73.59 feet; 3) Thence North 02°02'56" East for 0.70 feet; 4) Thence North 47°07'52" West for 59.52 feet; 5) Thence North 43°12'49" East for 100,72 feet; 6) Thence South 46°47'08" East for 61.00 feet; 7) Thence North 88°45'00" East for 0.64 feet; 8) Thence South 47°14'37" East for 41.99 feet; 9) Thence North 61°42'01" East for 21.07 feet; 10) Thence South 30°14'35" East for, 2,75 feet; 11) Thence North 62°06'03" East for 5.43 feet to the Point of Beginning%of the hereinafter described parcel; 12) Thence continue North 62°06'03" East for 82.45 feet; Thence North 38°59'48" West, departing the previously described face of the seawall and running along the southerly face of an existing C.B.S. wall and its southerly extension, for 84.41 feet; Thence North 49°09'5I" East along the northerly end of said C.B.S. wall for 0.43 feet to a point on the Edge of an existing Asphalt Pavement; Thence along the Edge of said Asphalt Pavement and its Northwesterly extension, for the following described three (3) courses; 1) Thence North 40°50'09" West for 37.58 feet to a point of curvature of a circular curve concave to the Southwest; 2) Thence Northwesterly, along the arc of said curve to the left, having a radius of 31,50 feet and a central angle of 33°37'09" for a distance of 18.48 feet to the point of tangency; 3) Thence North 74°27' 18" West for 13.19 feet to a point on the Northeasterly extension of the edge of an existing concrete; Thencealong, the previously described edge. of. said . concrete .and its Northeasterly and Southwesterly extensions for the following descried five (5) courses; 1) Thence South 43°17'10" West for 69.37.feet; 2) Thence South 48°08'44" East for 26.07 feet; 3) Thence South 41°51'16" West for 10.30 feet; 4) Thence South 45°40'I7" East for 20.02 feet; 5) Thence South 41°51'16" West for 19.89 feet to a point of intersection with an existing chain link fence; Thence along said chain link fence and its southerly extension for the following described three (3) courses; 1) Thence South'46°34'27" East for 48.90 feet; 2) Thence North 49°46' 1 1 " East for 14.07 feet; 3) Thence South 49°34'23" East for 26.67 feet to the Point of Beginning. Containing 12,356 sq, ft, or 0.284 acres more or less. Page 51 of 68 LEGAL DESCRIPTION (PARCEL 6A) (MARINA SUBMERGED LANDS) A portion of Tract A of Dinner Key, according to the plat thereof as recorded in plat book 34, at page 2, of the Public Records of Miami Dade County, Florida and a portion of Section 22, Township 54 South, Range 41 East, Miami -Dade County, Florida, more particularly described as follows: Commence at the Southwest corner, of the Northwest 'A, of said Section 22; Thence South 02°24'44" East,/ along the Southerly extension of the West line of the NW '/4 of said Section 22, for 436.51 feet; Thence North 86°27'43" East for 75.86 feet to a point of intersection with the U.S. Pier -Head Bulkhead line of 1939 as recorded in Plat Book 74, at Page 3, of the Public Records of Miami -Dade County, Florida, said point labeled HL-78-C and said line also being the Northwesterly line of T.LI.F, Deed No. 19448 to City of Miami, recorded in Deed Book 3130, at Page 260, of the Public Records of Miami -Dade County, Florida; Thence along said U.S. Pier -Head Bulkhead line, for the following described six (6 ) courses; 1) Thence South 77°01'17" East,'for 669.48 feet to a point labeled HL-78-B on the previously named plat; 2) Thence North 74°08'10" East for 526.25 feet to a point labeled HL-78-A on the previously named plat; 3) Thence North 43°08'20" East for 250.00 feet to a point labeled HL-76 on the previously named plat; 4) Thence North 12°08' 10" East for 88.25 feet; Thence along the outside face of an existing seawall and; its Southerly extension for the following described twelve (12 ) courses; 1) Thence North 45°44'46" West: for 16.33 feet; 2) Thence North 46°50'16" West for 262.72 feet to the Point of Beginning of the hereinafter described parcel; 3) Thence North 47°06'49" West for 73.59 feet; 4) Thence North 02°02'56" East for 0.70 feet; 5) Thence North 47°07'52" West for 59.52 feet; 6) Thence North 43°12'49" East for 100.72 feet; 7) Thence South 46°47'08" East for 61.00 feet; 8) Thence North 88°45'00" East for 0.64 feet; 9) Thence South 47°14'37" East for 41.99 feet; 10) Thence North 61°42'01" East for 21.07 feet; 11) Thence South 30°14'35" East for 2.75 feet; 12) Thence North 62°06'03" East for 87.88 feet; Thence South 27°53'57" East, departing the previously described existing seawall, for 60.00 feet; Thence South 62°06'0r' West for 118.88 feet; Thence North 47°14'37" West for 26.50 feet; Thence South 42°45'23" West for 7,1.49 feet to the Point of Beginning. Containing 20,317 sq. ft. or 0.47 acres more or less. Page 52 of 68 LEGAL DESCRIPTION (PARCEL 6B) (SUBMERGED LANDS ABUTTING FORMAL RESTAURANT) A portion of Tract A of Dinner Key, according, to the plat thereof as recorded in plat book 34, at page 2, of the Public Records of Miami Dade County, Florida and a portion of Section 22, Township 54 South, Range 41 East, Miami -Dade County, Florida, more particularly described as follows: Commence at the Southwest corner, of the Northwest IA, of said Section 22; Thence South 02°24'44" East, along the Southerly extension of the West line of the NW '/4 of said Section 22, for 436.51 feet; Thence North 86°27'43" East for 75.86 feet to a point of intersection with the U,S. Pier -Head Bulkhead line of 1939 as recorded in Plat Book 74, at Page 3, of the Public Records of Miami -Dade County, Florida, said point labeled HL-78-C and said line also being the Northwesterly line of T.I.I.F. Deed No. 19448 to City/of Miami, recorded in Deed Book 3130, at Page 260, of the Public Records of Miami -Dade County, Florida; Thence 'along said U.S.' Pier -Head Bulkhead line, for the following described four (4 ) courses; I) Thence South 77°01'17" East, for 669.48 feet to a point labeled HL-78-B on the previously named plat; 2) Thence North 74°08'10" East for 526.25 feet to a point labeled HL-78-A on the previously named plat; 3)Thence North 43°08'20" East for 250.00 feet to a point labeled HL-76on the previously named plat; 4) Thence North 12°08'10" East for 88.25 feet; Thence along the outside face of an existing seawall and its Southerly extension for the following described two (2) courses; 1) Thence North 45°44'46" West for 16.33 feet; 2) Thence North 46°50'16" West for 262.72 feet; Thence North 42°45'23" East, departing the previously described existing seawall for 71.49 feet; Thence South 47°14'37" East for 26.50 feet; Thence North 62°06'03" East for 118.88 feet to the Point of Beginning of the hereinafter described parcel; Thence continue North 62°06'03" East for 175.75 feet to the point of intersection with the previously described U.S. Pier -Head Bulkhead line of 1939; Thence North 21°08'57' East, along the previously described line, for 146.73 feet; Thence North 76°03'06" West for 119.88 feet to a point of intersection with the outside face of an existing seawall; Thence along the outside face of said existing seawall for the following described three (3) courses; I) Thence South 18°42'46" East for 53.81 feet to the point of curvature of a circular curve concave to the Northwest; 2) Thence southeasterly, southerly and southwesterly, along the arc of said curve to the right, having a radius of 75.00 feet and a central angle of 80°48'49" for a distance of 105.78 feet to the point of tangency; 3) Thence South 62°06'03" West for 11,4.64 feet to the Point of Beginning. Containing 20,579 sq. ft. or 0.47 acres more or less. Page 53 of 68 LEGAL DESCRIPTION PARKING GARAGE PARCEL [TO BE INSERTED PRIOR TO LEASE EXECUTION] Page 54 of 68 EXHIBIT C2 LEGAL DESCRIPTION PARKING FACILITIES RETAIL AREA [TO BE INSERTED UPON FINAL CONSTRUCTION] 411 // Page 55 of 68 2 EXHIBIT "D" STATE DEP AGREEMENTS ITO BE INSERTED UPON THEIR EXECUTION! Page 56 of 68 EXHIBIT "E" EXISTING DRY SLIP USE AGREEMENTS ITO BE INSERTED UPON RECEIPT] Page 57 of 68 EXHIBIT "F" EXISTING PARKING FACILITIES [TO BE INSERTED PRIOR TO LEASE EXECUTION] Page 58 of 68 EXHIBIT "G" GROSS REVENUE REPORT [TO BE INSERTED PRIOR TO EXECUTION] Page 59 of 68 EXHIBIT "H" PAYMENT AND PERFORMANCE BOND ITO BE APPROVED BY THE RISK MANAGEMENT AND OFFICE OF THE CITY ATTORNEY AND INSERTED PRIOR TO EXECUTION] . Page 60 of 68 PERFORMANCE AND PAYMENT BOND BY THIS BOND, We , as Principal, hereinafter called CONTRACTOR, and , as Surety, are bound to the City of Miami, Florida, hereinafter called CITY, hereinafter referred to as OBLIGEE, in the amount of Dollars ($ for the payment whereof, CONTRACTOR and Surety bind themselves, their heirs, executors, administrators, successors and assigns, jointly and severally. WHEREAS, CONTRACTOR has by written agreement entered into a Contract, Bid/Contract No.: , awarded this day of 20_ with which Contract Documents are by reference incorporated herein and made a part hereof, and specifically include provision for liquidated damages, and other damages identified and for the purposes of this Bond are hereafter referred to as the "Contract." THE CONDITION OF THIS BOND is that if CONTRACTOR: 1, Performs the Contract between CONTRACTOR and for construction of , the Contract being made a part of this Bond by reference, at the times and in the manner prescribed in the Contract; and 2. Pays CITY all losses, liquidated damages, expenses, costs and attorney's fees, including appellate proceedings, that CITY sustains as a result of defaultby CONTRACTOR under the Contract; and Promptly makes payments to all claimants, as defined by Florida Statutes 255.05(1) for all labor, materials and supplies used directly or indirectly by CONTRACTOR in the performance of the Contract; THEN CONTRACTOR'S OBLIGATION SHALL BE VOID; OTHERWISE, IT SHALL REMAIN IN FULL FORCE AND EFFECT SUBJECT, HOWEVER, TO THE FOLLOWING CONDITIONS: 3.1 A claimant except a laborer, who is not in privity with CONTRACTOR, and who has not received payment for its labor, materials orsupplies, shall, within forty-five (45) days after beginning to furnish labor, materials or supplies for the prosecution of the work, furnish to CONTRACTOR, a notice that he intends to look to the bond for protection. , 3.2 A claimant who is not in privity with ;CONTRACTOR and who has not received payment for its labor, materials or supplies, shall; within ninety (90) days after performance of the labor or after complete delivery of the materials or supplies, deliver to CONTRACTOR and to the Surety, written notice of the performance of the labor or delivery of the materials or supplies and of the nonpayment. 3.3 No action for the labor, materials or supplies may be instituted against CONTRACTOR or the Surety unless the notices stated under the preceding conditions (2.1) and (2.2) have been given. 3.4 Any action•under this Bond must be instituted in accordance with the longer of the applicable Notice and Time Limitations provisions prescribed in Section 255.05(2) or Section 95.11, Florida Statutes. Page 61 of 68 4 Performs the guarantee of all work and materials furnished under the Contract for the time specified in the Contract; then THIS BOND IS VOID. OTHERWISE IT REMAINS IN FULL FORCE AND EFFECT. Whenever, CONTRACTOR shall be, and is declared by CITY to be, in default under the Contract, having performed CITY obligations there under, the Surety may promptly remedy the default or shall promptly: 4,1 Complete the Project in accordance with the terms and conditions of the Contract Documents; or 4.2 Obtain a bid or bids for completing the Project in accordance with the terms and conditions of the Contract Documents, and upon determination by Surety of the lowest responsible Bidder, or if elects, upon determination by and Surety, jointly of the lowest responsible Bidder, arrange'foi a contract between such Bidder and and make available as work progresses (even though there should be a default or a succession of defaults under the Contract or Contracts of completion arranged under this paragraph) sufficient funds to pay the cost of completion less the balance of the Contract Price; but not exceeding, including other costs and damages for which the Surety may be liable hereunder, the amount set forth in the first paragraph hereof. The term "balance of the Contract Price" as used in this paragraph, shall mean the total amount payable by CITY to CONTRACTOR under the Contract and any amendments thereto, less the amount properly paid by to CONTRACTOR. No right of action shall accrue on this bond to or for the' use of any person or corporation other than CITY named herein. The Surety hereby waives notice of and agrees that any changes in or under the Contract Documents and compliance or noncompliance with any fprmalities connected with the Contract or the changes does not affect Surety's obligation under this Bond. Signed and sealed this day of WITNESSES/ATTEST: Contractor) Page 62of68 CONTRACTOR: (Name of (CORPORATE SEAL) IN THE PRESENCE OF: INSURANCE COMPANY Fact) (Street) • By: (Agent and Attomey-in- , Address: Page 63 of 68 (City/State/Zip Code) Telephone No,: EXHIBIT "I" EXISTING IMPROVEMENTS ITO BE INCLUDED PRIOR TO EXECUTION] Page 64 of 68 . EXHIBIT "J" INSURANCE REQUIREMENTS Lessee, at .its sole cost, shall obtain and maintain in full force and effect at all times throughout the period of this Lease, the following insurance coverage: Commercial General Liability Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence $1,000,000 General Aggregate Limit $2,000,000 Products and Completed Operations $1',000,000 Personal and Advertising Injury $1,000,000 Damage to rented premises $100,000 Endorsements Required City of Miami listed as an Additional Insured Additional insured endorsement required Contingent Liability & Contractual Liability Premises/Operations Liability II. Business Automobile Liability Limits of Liability Bodily Injury and Property Damage Liability Combined Single Limit Any Auto/Owned/Scheduled Including Hired, Borrowed or Non -Owned Autos Any One Accident . Endorsements Required City of Miami listed as an Additional Insured 111. Worker's Compensation Limits of Liability Statutory -State of Florida Waiver'of subrogation IV. Employer's Liability Limits of Liability Bodily injury caused by an accident, each accident $500,000 Bodily injury caused by disease, each employee $500,000 Bodily injury caused by disease, policy limit $500,000 $500,000 V. Liquor Liability A. Limits of Liability Each Occurrence VI. Excess Liability/Umbrella Policy A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence Page 65 of 68 $1,000,000 $3,000,000 Aggregate $3,000,000 Cityof Miami listed as an additional insured, Umbrella should include liquor liability VII. Marine Operators Legal Liability A. Limits of Liability Each Occurrence $1,000,000 VIII. "All Risk" Causes of Loss: special form coverage, including theft, windstorm and flood coverage, and equipment breakdown coverage. Valuation: 100% replacement cost on building and Lessee's business personal property, including improvements, all its equipment, fixtures and furniture% The Lessee must furnish a Certificate of Insurance for affordingcoverage for the blinding or premises Business Income and Extra Expense should be included preferably issued on•an�4ctual Loss Sustained Basis. The City's Department of Risk Management, reserves the right to reasonably amend the insurance requirements by the issuance of a notice in writing to Lessee. The Lessee shall provide any other insurance or security reasonably required by the City. The policy or policies of insurance required shall provide for notice of cancellation or material changes in accordance to policy provisions. Said notice should be delivered,'to the City of Miami, Department of Risk Management, 444 SW 2 Avenue, 9'h Floor, Miami, Florida 331,30, with copy to City of Miami, Department of Public Facilities, 444 SW 2 Avenue, 3rd Floor, Miami, Florida 33130, or such other address that may be designated from time to time. A current evidence and policy of insurance evidencing theaforesaid required insurance coverage shall be supplied to Department of Public Facilities of the City At the commencement of this Lease and a new evidence and policy shall be supplied at least twenty (20) days prior to the expiration of each such policy. Insurance policies required above shall be issued by coni 5anies authorized to do business under the laws of the State, with the following qualifications as to management and financial strength: the company or companies should be rated "A-" as to management, an'i no less than class "V" as to financial strength, in accordance with the latest edition of Best's Key Ratin'Guide, or the company or companies holds a valid Florida Certificate of Authority issued by the State of/Florida, Department of Insurance, and is a member of the Florida Guarantee Fund. Receipt of any docutientation of insurance by the City or by any of its representatives, which indicates less coverage that' required, does not constitute a waiver of Lessee's obligation to fulfill the insurance requirements hereii. In the event Lessee shall fail to procure and place uch insurance, the City may, but shall not be obligated to, procure and place same, in which event the a unt of the premium paid shall be paid by Lessee to the City as an additional fee upon demand and shall i /each instance be collectible on the first day of the month or any subsequent month following the date of p.'ment by the City. Lessee's failure to procure insurance shall in no way release Lessee from its obligation °and responsibilities as provided herein. Page 66 of 68 INSURANCE REQUIREMENTS CONSTRUCTION PORTION MARINA/RESTAURANTS I. 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 listed as an Additional Insured Employees included as insured Independent Contractors Coverage Contractual Liability Prem ises/Operations Explosion, Collapse and Underground Hazard Loading and Unloading Business Automobile Liability Limits of Liability Bodily Injury and Property Damage Liability Combined Single Limit Any Auto/Owned/Scheduled Including Hired, Borrowed or Non -Owned Autos Any One Accident Endorsements Required City of Miami listed as an Additional Insured .'' Worker's Compensation Limits of Liability Statutory -State of Florida Waiver of subrogation USL&H if.Applicable IV, Employer's Liability A, Limits of Liability ¢?; $1,000,000 for bodily Injury, caused by an accident, each accident. $1,000,000 for bodily injur$ caused by disease, each employee $1,000,000 for bodily injury caused by disease, policy limit V. Owner's & Contractor's Protec }ve A. Limits of Liability Each Occurrence Policy Aggregate City of Miami listed as named insured $1,000,000 VI. Excess Liability/Umbrella Policy A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence Page 67 of 68 $1,000,000 $1,000,000 Aggregate City of Miami listed as an additional insured VII. Payment and Performance Bond City of Miami Listed as Obligee VIII. Builder's Risk Causes of Loss: Special /All Risk Valuation: Replacement Cost Deductible: 5% wind and hail City listed as loss payee IX. Protection and Indemnity (If applicable) Jones Act included. Page 68 of 68 $5,000,000