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HomeMy WebLinkAboutExhibit - Lease 02.12.15LEASE BETWEEN THE CITY OF MIAMI AND VIRGINIA KEY OUTDOOR CENTER, LLC FOR THE USE OF A CERTAIN PORTION OF CITY -OWNED PROPERTY FOR A RECREACTIONAL SUPPORT FACILITY LOCATED AT 3801 RICKENBACKER CAUSEWAY (ON ARTHUR LAMB JR. ROAD) MIAMI FL. 33149 0 .7: TABLE OF CONTENTS ARTICLE I DESCRIPTION AND TERM Section 1.1 Description of Area Section 1.2 City Improvements Section 1.3 Tenn of Use ARTICLE II PURPOSE Section 2.1 Purpose Section 2.2 Continuous Duty to Operate Section 2.3 Competition ARTICLE III CONSIDERATION Section 3.1 Rent Section 3.2 Additional Payments Section 3.3 Late Payments and Interest Fees Section 3.4 Returned Check Fee Section 3.5 Security Deposit Section 3.6 Rent Increase ARTICLE IV RECORDS AND AUDITING Section 4.1 Records Section 4.2 Audit ARTICLE V LICENSES, COMPLIANCE WITH LAWS Section 5.1 Licenses and Permits Section 5.2 Compliance with Laws ARTICLE VI HAZARDOUS MATERIALS Section 6.1 Hazardous Materials ARTICLE VII ALTERATIONS AND IMPROVEMENTS Section 7.1 Alterations Section 7.2 Capital Improvements Section 7.3 Liens Section 7.4 Personal Property Section 7.5 Changes and Additions to the Property ARTICLE VIII RIGHT OF ENTRY Section 8.1 Landlord's Right of Entry Section 8.2 Public Access to Waterways ARTICLE IX UTILITIES Section 9.1 Utilities Section 9.2 Landlord Not Liable for Failure of Utilities ARTICLE X NO REPRESENTATION BY THE LANDLORD Section 10.1 Condition of Property ARTICLE XI MAINTENANCE AND REPAIR OF PROPERTY Section 11.1 Tenant's Maintenance and Repair of Property ARTICLE XII INDEMNIFICATION AND INSURANCE Section 12.1 Indemnification Section 12.2 Insurance Section 12.3 Damage or Loss to the Property ARTICLE XIII DESTRUCTION OF PROPERTY Section 13.1 Destruction of Property Section 13.2 Option to Terminate Due to Casualty Section 13.3 No Liability ARTICLE XIV ASSIGNMENT Section 14.1 Assignment ARTICLE XV OWNERSHIP OF IMPROVEMENTS Section 15.1 Ownership of Improvements ARTCLE XVI SIGNAGE Section 16.1 Signs ARTICLE XVII SPECIAL ASSESTMENTS AND TAXES Section 17.1 Special Assessments and Taxes Section 17.2 Payment in Lieu of Taxes ARTICLE XVIII NOTICE Section 18.1 Notice ARTICLE XIX DEFAULT Section 19.1 Default Section 19.2 Landlord's Remedies in Event of Default Section 19.3 Repeated Defaults — Tenant Section 19.4 Events of Defaults — Landlord Section 19.5 Tenant's Remedies in the Event of Default Section 19.6 Repeated Defaults — Landlord Section 19.7 Surrender of the Area ARTICLE XX HOLDING OVER Section 20.1 Holding Over ARTICLE XXI NON-DISCRIMINATION & EQUAL OPPORTUNITY Section 21.1 Nondiscrimination Section 21.2 Equal Employment Opportunities ARTICLE XXII MISCELLANEOUS PROVISIONS Section 22.1 Ingress and Egress 4 Section 22.2 Landlord Approval Section 22.3 Safety Section 22.4 Successors and Assigns Section 22.5 Termination of Operations at the Property Section 22.6 Amendments Section 22.7 Construction of Lease Section 22.8 Waiver of Jury Trial Section 22.9 Severability Section 22.10 Waiver Section 22.11 Captions Section 22.12 Radon Section 22.13 Joint Preparation Section 22.14 Counterparts Section 22.15 Court Costs and Attorney(s) Fees Section 22.16 Conflict of Interest Section 22.17 Public Records Section 22.18 Third Party Beneficiary Section 22.19 No Partnership Section 22.20 Authority Section 22.21 Binding Effect Section 22.22 Entire Lease Section 22.23 Force Majeure LEASE This Recreational Support Facility Lease ("Lease") is made this day of , 2015 between the City of Miami, Florida, a municipal corporation of the State of Florida ("Landlord" or "City") and Virginia Key Outdoor Center, LLC ("Tenant"), together the Parties ("Parties"). RECITALS WHEREAS, the Landlord is the owner of the property located at 3801 Rickenbacker Causeway Virginia Key, Miami, Florida 33149 ("Property"); and WHEREAS, the City issued the Request for Letters of Interest ("RFLI") No. 12-13-068; (a copy of which is available at the City Clerk's Office, and any addendums issued to the RFLI) WHEREAS, the Tenant has expressed its interest to operate a recreational support facility on certain portion of the Property; and WHEREAS, the Landlord desires to construct, or cause to be constructed, a facility to be known as the Recreational Support Facility ("Facility") on a portion of the Property, currently vacant land (referred to herein as "Area") ; and WHEREAS, this Lease is subject to the audit and inspection rights set forth in Sections 18-100, 18-101 and 18-102 of the Code; and WHEREAS, the Landlord and Tenant (collectively "the Parties") desire to enter into a Lease; and WHEREAS, the Parties jointly and voluntarily stipulate as to the accuracy of these recitals; and NOW, THEREFORE, in order to carry out the intent as expressed herein and in consideration of the mutual agreements subsequently contained, the Landlord and Tenant agree as follows: 1.1 Description of Area ARTICLE I DESCRIPTION AND TERM 6 The Area shall refer to that certain portion of vacant land located within the Property which shall be designated for use by the Tenant, more particularly described in Exhibit "A". The Landlord has determined that the Area, Facility and the improvements ("Project" depicted as Exhibit "B"), which shall consist of a total square footage of approximately 2,056 square feet, (c is not needed at this time by any of the City's offices or departments. 1.2 City Improvements Landlord shall construct or caused to be constructed, at Landlord's expense a new Facility to support the bike trails, paddle sports, kayaking, outdoor recreation, environmental tours, education, and all other permitted recreational uses. Landlord shall design and construct, or cause to design and construct, a facility comprised of two pre-fab removable buildings joined by an elevated wood deck. One pre-fab building will have restrooms and the other will have a vendor space and an office equipped with air conditioning, The Project shall also include a bike rinse area, a gravel parking area with 19 regular spaces and 1 handicap space compliant with the American with Disabilities Act (ADA) standards. The parking area shall be paved with concrete, asphalt, or any other material commonly used to construct a commercial grade parking lot, and shall have an access ramp to the elevated deck and walkway. The parking area shall be used by the Tenant or its customers at no additional charge. Landlord shall provide Tenant with utilities, including electrical service, water and sewer hookups, and a septic system for waste. 1.3 Tern of Use The tern of this Lease shall be for a five (5) year period ("Tern") commencing on the earlier of; (i) thirty (30) days after the date that the landlord delivers possession of the Area and/or (ii) thirty (30) days after issuance of a temporary Certificate of Occupancy ("Commencement Date"). Landlord shall provide Tenant a newly constructed Facility, to be memorialized in the Possession Date Certificate attached herein as Exhibit "D". 1.4 Option to Extend None. ARTICLE II PURPOSE 7 2.1 Purpose The purpose of this Lease is to allow and assist Tenant to provide recreational activities, operations, and ancillary functions for the Facility ("Permitted Use") and in furtherance thereof authorizes the Tenant to occupy and use the Area and Property under the conditions hereinafter set forth. Activities and operations should include but are not limited to: bicycle, canoe, kayaking, paddle boarding, and their instruction, equipment rentals, guided tours, and running and fitness. Other activities may include various structured and unstructured nature based outdoor recreation such as photo safaris, photography workshops, bird watching, and educational workshops, and additional activities and services including but not limited to those proposed by the Tenant, listed on the attached Exhibit "F". Any ancillary uses may include support services, sales of related merchandise, and snacks, concession food, and non-alcoholic beverages. Permitted Use shall allow Tenant the use of the Property in accomplishing its intended purpose to provide recreational activities, operations, ancillary functions and services for the Facility. Any use of the Area and/or Property not authorized under the Permitted Use must receive the prior written consent of the City Manager, or his/her authorized designee. This consent may be withheld in the sole and absolute discretion of the City Manager, including, but not limited to additional financial consideration. Tenant may subcontract for services within the abovementioned Permitted Use subject to section 7.3 of this agreement In the event the Tenant ceases to use and operate the Area for the purposes provided herein, this Lease and all rights of the Tenant hereunder shall, at the option of the Landlord, cease and terminate, in accordance with the provisions and requirements of Article XIX of this Lease. 2.2 Continuous Duty to Operate Except where the Property and/or the Area is rendered unusable by Force Majeure, defined in 22.23, including, but not limited to: unsafe weather conditions, reason of fire, natural disaster, act of God, terrorism, or by material building repair, environmental or maintenance requirements or other similar events or casualty, the Tenant shall at all times during the Term hereof occupy, use and operate the Area for the purposes provided in Section 2.1. 8 2.3 Competition Unless otherwise provided herein, the Landlord shall not authorize any services in the Property that are in direct conflict with or in direct competition with the Tenant's services within the Property. Such services shall not include any special events or one-time events that the City may contract for, or operate during the Term of the Lease. ARTICLE III CONSIDERATION 3.1 Rent A. Minimum Monthly Rent In consideration for this Lease, Tenant agrees to pay to the Landlord for the exclusive use of Area the amount of Seven Hundred Fifty Dollars and 00/100 Dollars ($750.00) per month, plus State of Florida Use Tax, if applicable, which shall be paid in advance and in full on the first day of each month, commencing from the Commencement Date of the Lease. The rent shall be pro -rated if the commencement is not on the first day of the month. Thereafter rent is due on the first day of each calendar month, without notice or demand ("Minimum Monthly Rent"). For Lease Year two and thereafter, Tenant agrees to pay to the Landlord for the exclusive use of Area the amount stated in Section 3.6. B. Minimum Percentage Rent Commencing from the Commencement Date of the Lease and continuing throughout the term of the Lease, Tenant shall pay to the Landlord a percentage of Tenant's annual Gross Revenues made from or upon the Area and Property. Percentage Rent shall be computed on an annual basis ("Percentage Rent Period") beginning with the Commencement Date and continuing throughout the Term. The Percentage Rent shall be as follows: Tenant shall pay a Minimum Percentage Rent for Lease Year one (1) of five percent (5%) of Gross Revenues up to five hundred thousand dollars ($500,000.00) and ten percent (10%) of Gross Revenues in excess of Five Hundred Thousand dollars ($500,000.00). For Lease Year two (2) and thereafter, Tenant shall pay a Minimum Percentage Rent of ten percent (10% of Gross Revenues up to five hundred thousand dollars ($500,000.00) and Twelve percent (12%) of Gross Revenues in excess of five hundred thousand dollars ($500,000.00). 9 C. Manner of Payment The Percentage Rent, if any, shall be payable within sixty (60) days after the end of each Lease Year ("Lease Year" means twelve (12) full consecutive months; the first Lease Year shall begin on the Commencement Date. If the Commencement Date does not fall on the first day of the month, the first Lease Year will commence on the first day of the following month. Each succeeding Lease Year shall commence upon the anniversary date of the first Lease Year.) Tenant shall deliver to the Landlord a statement setting forth the Gross Revenues during the applicable Percentage Rent Period (the "Annual Percentage Rent Statement"), and Tenant shall pay to the Landlord the amount of Percentage Rent due and payable, if any, to the City pursuant to the teens of this Lease. Each Annual Percentage Rent Statement shall be signed and certified to be complete and correct by an officer of Tenant. Such statement shall show the annual Gross Revenues and an itemization of any exclusions or deductions for the current Lease Year. Tenant shall use a Gross Revenue Report, a sample of which is attached herewith and incorporated herein as Exhibit "G" to itemize any and all reportable Gross Revenues. Tenant shall (i) pay the Lessor (x) the Minimum Monthly Rent and (y) the Percentage Rent if applicable, and (ii) deliver the corresponding Gross Revenue Report for the preceding Lease Year to the City of Miami, at the address noted below or such other address as may be designated from time to time: City of Miami Department Of Real Estate and Asset Management Attention: Lease Manager 444 SW 2nd Avenue, 3rd Floor Miami, Florida 33130 3.2 Additional Payments None. 3.3 Late Payments and Interest Fees In the event City does not receive any installment of the Rent within five (5) days after the due date, Tenant shall pay to the City a late charge in an amount equal to ten percent (10%) of the amount due. Such late fee shall constitute additional fees due and payable to the City by Tenant upon the date of payment of the delinquent payment referenced above. Acceptance of such late charge by the City shall, in no event, constitute a waiver of Tenant's violations with 10 respect to such overdue amount, nor shall it prevent the City from the pursuit of any remedy to which the City may otherwise be entitled. 3.4 Returned Check Fee In the event any check is returned to the Landlord as uncollectible, the Tenant shall pay to Landlord a returned check fee ("Returned Check Fee") based on the following schedule: Returned Amount Returned Check Fee $00.01 - 50.00 $20.00 $50.01 - 300.00 $30.00 $300.01 - 800.00 $40.00 OVER $800 5% of the returned amount. Such returned check fee shall constitute additional fees due and payable to the Landlord by Tenant upon the date of payment of the delinquent payment referenced above. Acceptance of such returned check fee by Landlord shall, in no event, constitute a waiver of Tenant's violations with respect to such overdue amount nor prevent Landlord from the pursuit of any remedy to which Landlord may otherwise be entitled. 3.5 Security Deposit Tenant shall provide to the City a payment in the amount of Two Thousand Dollars, ($2,000.00) upon execution of the Lease, hereinafter referred to as the Security Deposit. The Security Deposit shall be transferred from the Earnest Money Deposit paid by Tenant at proposal submission in the amount of Two Thousand Five Hundred Dollars ($2,500.00) as required in the RFLI; the balance in the amount of Five Hundred Dollars ($500.00) shall be applied towards the first Minimum Monthly Rent. If the Tenant is in violation beyond any applicable notice or cure period, the City may use, apply or retain all or any part of the Security Deposit for the payment of (i) any fee or other sum of money which Tenant was obligated to pay but did not pay, (ii) any sum expended by City on Tenant's behalf in accordance with the provisions of this Lease, or (iii) any sum which City may expend or be required to expend as a result of Tenant's violation. Should the City use, apply or retain all or any part of the Security, Tenant shall reimburse the amount used, applied or retained within fifteen (15) days of the City's application of the Security Deposit. The use, application or retention of the Security Deposit, or any portion thereof by the City, shall not 11 prevent the City from exercising any other right or remedy provided for under this Lease or at law and shall not limit any recovery to which the City may be entitled otherwise. Provided Tenant is not in violation of this Lease, the Security Deposit, or balance thereof, as the case may be, shall be returned to Tenant after the expiration date or upon any later date after which Tenant has vacated the Area and Property in the same condition or better as existed on the Commencement Date, ordinary wear and tear accepted. Upon the return of the Security Deposit (or balance thereof) to the Tenant, the City shall be completely relieved of liability with respect to the Security Deposit. Tenant shall not be entitled to receive any interest on the Security Deposit. 3.6 Rent Increase The Minimum Monthly Rent for Lease Years two through five (2 — 5) of the tern shall be adjusted. At the beginning of Lease Year two (2), Tenant's Minimum Monthly Rent shall increase and Tenant shall remit to the City the amount of one thousand dollars ($1,000.00) per month, plus State of Florida Use Tax, if applicable, which shall be paid as stated in Section 3.1 (C) Manner of Payment, without notice or demand. Tenant agrees that the Minimum Monthly Rent shall be increased annually by three percent (3%) upon the connnencement of Lease Year three (3) and each year thereafter. ARTICLE IV RECORDS AND AUDITING 4.1 Records A. Monthly Gross Revenues Gross Revenues shall mean the entire amount of all revenues and percentages of revenues actually collected and received by the Tenant derived from the following sales sources, including without limitation: (i) all revenue from the commercial business and services conducted by Tenant on or from the Property or Area; (ii) all revenue received by Tenant in connection with the special events uses of the Area or Property, any facility thereon, or any portion thereof for any period of time; with the exception of 12 a. Special events held by third parties, separate and outside any control of Tenant, under a permit obtained in the same manner as any other member of the community, or business entity. b. Revenues generated by Tenant when separately leasing park space or facility or when granted a Special Event Permit for the use of any additional area within the Property. (iii) collected sales made or performed by means of mechanical or other vending sales, contracted by or under the control of the Tenant, and services devices or machines on the Property or Area, including without limitation, pay telephones, vending machines, and entertainment devices both for cash and on credit, rendered in or upon the Property or Area by a third party, separate and aside from the Tenant; (iv) all other receipts whatsoever derived from other commercial operations, unrelated to the Purpose, conducted in or from the Property or Area by the Tenant. Gross Revenues, whether for cash, credit, credit cards or otherwise, shall be recognized in the period the service was provided or sale took place. Payments received in advance are deferred and are recognized as revenue in the period the service is rendered or sale takes place. Gross Revenues shall not include the following: i) any sums collected and paid out by Tenant 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 Tenant, provided that the amount is added to the selling price therein and paid by the Tenant to such governmental authority; ii) proceeds from the sale of trade fixtures, operating equipment or similar assets after use thereof in the conduct of Tenant's on and inside the Area; iii) cash or credit refunds or rebates to customers to the extent previously included in Gross Revenues; iv) all gratuities paid to tenant or its employees; v) amounts received by Tenant as reimbursements of expenses and cost sharing (for example, reimbursement of taxes, insurance or utility bills); vi) any grants, loans, funding, subsidies, rebates, credits or similar benefits received by Tenant from any federal, state, regional or local body, agency, authority, department or organization; 13 vii) any grants, loans, funding, subsidies, rebates, credits or similar benefits received by Tenant from any private source, or organization; viii) interest earned on Tenant's deposit accounts, earnings or profits on Tenant's investments; B. Financials Notwithstanding the acceptance by Landlord of payments of Minimum Monthly Rent and Minimum Percentage Rent, Landlord 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 Area or at the Tenant's main accounting office, Tenant's financial records, source documents, bank statements, state sales and use tax returns/reports, and federal income tax returns filed by Tenant in order to verify the information contained in the annual Percentage Rent Statement in and from the Area. C. Records During the Tern of this Lease, the Tenant shall prepare and keep full, complete and proper books and source documents in accordance with generally accepted accounting principles, of lease payments, grants, donations, contributions at fundraising events, foundation support, special events income and/or other contributions and income received by Tenant in connection with the operation of the Area and Property. The books and source documents to be kept by Tenant shall include, without limitation, true copies of all bank statements, federal, state sales and use tax returns and sales records of each Subtenant paying minimum and/or percentage rent (if applicable) to Tenant and records of any other transactions conducted in or from the Area and/or Property by Tenant. Tenant will establish (if not currently established) a single purpose, bankruptcy remote operating entity that is unique and distinct to the operations of Tenant at the Area and Property, as well as one or more bank accounts through which deposits of Gross Revenues generated from such operations will be made. These particular deposits of Gross Revenues will not be commingled with those from any other operations of Tenant or any other affiliated organizations, and shall be reconcilable with federal income tax returns and state sales and use tax returns. Landlord acknowledges and agrees that Virginia Key Outdoor Center, LLC, is an independent operating entity for purposes of this provision. All applicable records and accounts shall be available for inspection and or audit by the Landlord and its duly authorized agents or 14 representatives during the hours of 9:00 AM to 6:00 PM, Monday through Friday. The Tenant shall keep and preserve, or cause to be kept and preserved, said records for not less than sixty (60) months after the expiration of this Lease. The Tenant will cooperate with the Landlord's internal auditors (or such other auditors designated by the Landlord) in order to facilitate the Landlord's examination of records and accounts. The Tenant agrees that all documents, records' and reports maintained and generated pursuant to this Lease shall be subject to the provisions of the Public Records Law, Chapter 119, Florida Statutes. 4.2 Audit Tenant shall deliver or cause to be delivered to the Director within ninety (90) days after the end of each Fiscal Year, an audited financial report which report must be prepared in accordance with Generally Accepted Accounting Principles ("GAAP") in the United States, be complete and include all notes to the statements and any auditor's reports associated with the audited financial statements; and include, if associated with the audited financial statement, an auditor's opinion covering the operation the Property for the prior Fiscal Year. The Fiscal Year shall mean each twelve-month interval commencing on October 1st and expiring September 30111. The Landlord may also, at its option and upon reasonable prior notice, cause, at its sole cost and expense, a complete audit to be made of the Tenant's business affairs, records, files, and sales slips in connection with the Tenant's operations on, from or related to the Area and Property for the period covered by any audited financial statement, report or record furnished by the Tenant to the Landlord. The Tenant shall allow the Landlord or the auditors of the Landlord, upon reasonable prior notice, to inspect all or any part of the compilation procedures for the aforesaid reports. Records shall be available at the Area, or such other location in Miami approved by the Tenant, Monday through Friday, between the hours of 9:00 AM and 6:00 PM. The Tenant shall ensure that third parties using the facility follow the Landlord's required procedures. ARTICLE V LICENSES, COMPLIANCE WITH LAWS 5.1 Licenses and Permits The Tenant shall, at the Tenant's sole cost and expense, obtain any and all licenses and permits necessary and in connection with the Tenant's use and occupancy of the Area. 15 5.2 Compliance with Laws Each party to this Lease shall comply with all applicable laws, ordinances, and codes of federal, state, and local governments, now or hereinafter enacted. ARTICLE VI HAZARDOUS MATERIALS 6.1 Hazardous Materials The Tenant shall, at its sole cost and expense, at all times and in all respects comply with all federal, state and local laws, statutes, ordinances and regulations, rules, rulings, policies, orders and administrative actions and orders regarding hazardous materials under the control of Tenant or its agents ("Hazardous Materials Laws"), including, without limitation, any Hazardous Materials Laws relating to industrial hygiene, enviromnental protection or the use, storage, disposal or transportation of any flammable explosives, toxic substances or other hazardous, contaminated or polluting materials, substances or wastes, including, without limitation, any "Hazardous Substances", "Hazardous Wastes", "Hazardous Materials" or "Toxic Substances", under any such laws, ordinances or regulations (collectively "Hazardous Materials"). The Tenant shall, at its sole cost and expense, procure, maintain in effect and comply with all conditions of any and all pennits, licenses and other governmental and regulatory approvals relating to the presence of Hazardous Materials within, on, under or about the Area and/or Property required for the Tenant's use of any Hazardous Materials in or about the Area and/or Property in conformity with all applicable Hazardous Materials Laws and prudent industry practices regarding management of such Hazardous Materials. The Landlord recognizes and agrees that the Tenant may use such materials in quantities appropriate for its use of the Area and/or Property, for the purposes stated herein and that such use by the Tenant shall not be deemed a violation of this section so long as the levels of use of such materials are not in violation of any Hazardous Materials Laws. Upon termination or expiration of this Lease, the Tenant shall, at its sole cost and expense, cause all Hazardous Materials, including their storage devices, placed in or about the Area and/or Property by the Tenant or at the Tenant's direction, to be removed from the Area and/or Property and transported for use, storage or disposal in accordance and compliance with all applicable Hazardous Materials Laws. The Landlord acknowledges that it is not the intent of this Article VII to prohibit the Tenant from operating the 16 Area and/or Property for the uses described in Section 2.1 of this Lease entitled "Purpose". The Tenant may operate according to the custom of the industry so long as the use or presence of Hazardous Materials is strictly and properly monitored according to, and in compliance with, all applicable govermnental requirements. The requirements of this section shall survive the expiration or termination of this Lease. The Landlord represents that: (i) To the best of its knowledge there are no environmental violations, whether under federal, state, or local laws, affecting the Area and/or Property; (ii) To the best of its knowledge there are no Hazardous Materials presently affecting the Area and/or Property. ARTICLE VII ALTERATIONS AND IMPROVEMENTS 7.1 Alterations Except in the event of an emergency, Tenant shall not make any repair or alteration required or permitted to be performed by Tenant without first receiving the written approval of the Director of the Department of Real Estate and Asset Management (hereinafter referred to as "Director"), whose approval may be conditioned or withheld without any or no reason whatsoever, , including a condition to pay additional fees if such alteration will affect the cost of services being provided by the Landlord. If Director and/or Landlord approve such request, no repair or alteration shall be commenced until plans and specifications thereof shall have been submitted to and approved by the City Manager, and all necessary governmental requirements, permits, and or permissions. Tenant acknowledges that any approval given by the City Manager, Director, or entities above pursuant to this Article shall not constitute an opinion, approval, or agreement by the Landlord that the plans and specifications are structurally sufficient or in compliance with any laws, codes or other applicable regulations. In the event of an emergency, Tenant shall reasonably proceed to perform such repair work and shall immediately notify the Landlord of such work. 7.2 Capital hnproveinents Within thirty (30) days of the Commencement Date, Tenant, at its own cost and expense, shall submit to Landlord for Landlord's approval (not to be unreasonably withheld, delayed, or 17 conditioned) its Plans (defined below) for the commencement and completion of the Tenant's improvements. Upon acceptance, approval and, as needed, permitting, the capital improvements provided by the Tenant to the Area shall include, but are not limited to the following: (i) Removable/Replaceable Canopy for Deck Area (ii) Landscaping (Native Vegetation) (iii) Two (2) Storage Containers with Solar Lighting (iv) Security Surveillance System (v) Ventilation System and Misters for Deck Area (vi) Water Recovery System at Bike Wash, Deck, Rooftop Area (vii) Storage Reservoirs for Landscape Irrigation (viii) Pump and Filtration System for Reclaimed Water (Irrigation) (ix) Install Reclaimed Wood Deck for Bike Wash (x) Portable Repair Shack and Air -Fill Station for Cycles (xi) Under Deck Secured Storage (Fencing) Tenant, may, if funding is available, elect to provide the following Capital Improvements: (i) Minimum 33-Panel Grid -Tied Photovoltaic System (ii) Additional Solar Powered Lighting and Fixtures wherever possible 7.3 Liens Tenant shall not permit a lien or claim to attach to the Area and shall if filed, promptly cause the lien or claim to be released. If Tenant contests the lien or claim, Tenant shall indemnify Landlord and, if requested, deposit with Landlord a cash or surety bond in a form and with a company satisfactory to Landlord in an amount equal to twice the amount of the contested lien or claim. If Tenant shall fail to cause a lien to be discharged or bonded, within thirty (30) days after being notified of the filing of the lien, in addition to any other right or remedy, Landlord may upon written notice to Tenant discharge the lien by paying the amount claimed to be due. The amount paid by Landlord, together with interest at the Interest Rate and all costs and expenses, including reasonable attorneys' fees incurred by Landlord, shall be due and payable by Tenant to Landlord as additional rental on the 1st day of the next following month. Tenant shall immediately give Landlord written notice of the recording of a lien against the Area. Tenant, at its expense and with due diligence and dispatch, shall secure the cancellation or discharge of or bond off same in the manner permitted by law, all notices of violations arising 18 from or otherwise in connection with Tenant's improvements or operations in the Area which shall be issued by any public authority having or asserting jurisdiction. Tenant shall promptly pay its contractors and materials men for all work and labor done at Tenant's request. Should any such lien be asserted or filed, Tenant shall bond against or discharge the same within thirty (30) calendar days of Tenant's receipt of notice of the filing of said encumbrance. In the event Tenant fails to remove or bond against said lien, Tenant shall pay the Landlord upon demand any amount paid out by Landlord, including Landlord's costs, expenses and reasonable attorneys' fees. Tenant further agrees to hold Landlord harmless from and to indemnify the Landlord against any and all claims, demands and expenses, including reasonable attorney's fees, by reason of any claims of any contractor, subcontractor, material man, laborer or any other third person with whom Tenant has contracted or otherwise is found liable to, in respect to the Area. Nothing contained in this Lease shall be deemed, construed or interpreted to imply any consent or agreement on the part of Landlord to subject the Landlord's interest or estate to any liability under any mechanic's or other lien asserted by any contractor, subcontractor, material man or supplier thereof against any part of the Area or any of the improvements thereon and each such contract shall provide that the contractor must insert a statement in any subcontract or purchase order that the contractor's contract so provides for waiver of lien and that the subcontractor, material man and supplier agree to be bound by such provision. 7.4 Personal Property The Tenant shall have the right to remove any personal property that it places in or on the Area and/or Property. The Tenant may provide additional equipment and personal property necessary for its operation at the Area and/or Property. All equipment and personal property provided or used by the Tenant at the Area and/or Property shall be of good quality and suitable for its purpose. Any such equipment and/or personal property valued over five hundred dollars ($500.00) will be tagged and inventoried. Notwithstanding the above, personal property shall not include any outdoor equipment, bikes, kayaks, or any sports equipment. 7.5 Changes and Additions to the Property The Landlord reserves the right at any time to reasonably: (i) make or permit changes or revisions on the Area and/or Property, including additions to, rearrangements of, alterations of, modifications of or supplements to the building areas, walkways, parking areas, or driveways, 19 and (ii) construct improvements on the Area and/or Property and to make alterations thereof or additions thereto, subject to the condition that the Landlord will endeavor to minimize any interruption to the Tenant's use and operation of the Property and Area under the Lease and Landlord shall provide notice as soon as practicable but no less than sixty (60) days advance notice of any alterations or modifications that will substantially impact the Tenant's use of the Area and Property. ARTICLE YHI RIGHT OF ENTRY 8.1 Landlord's Right of Entry The Landlord reserves the right to enter upon the Property at all reasonable times, for any purpose the Landlord deems necessary to, incident to, or connected with the performance of the Landlord's duties and obligations hereunder or in the exercise of its proprietary and municipal functions. Landlord and its authorized representative(s) shall have at all times access to the Area. Landlord will maintain a complete set of keys to the Area. Tenant, at its sole cost and expense, may duplicate or change key locks but not until first receiving written approval from the Director of Public Facilities ("Director") for such work. In the event Tenant changes key locks as approved by the Director, Tenant, at its sole cost and expense, must also provide a copy of said keys to the Landlord. The Landlord shall have access to and entry into the Area at any time to (a) inspect the Area, (b) to perform any obligations of Tenant hereunder which Tenant has failed to perform after written notice thereof to Tenant, Tenant not having cured such matter within ten (10) days of such notice, (c) to assure Tenant's compliance with the terms and provisions of this Lease and all applicable laws, ordinances, rules and regulations and (d) for other purposes as may be deemed necessary by the City Manager in the furtherance of the Landlord's corporate purpose; provided, however, that Landlord shall make a diligent effort to provide at least twenty four (24) hours advance notice and Tenant shall have the right to have one or more of its representatives or employees present during the time of any such entry. The City, its officers, directors, employees, representatives and agents, shall not be liable for any loss, cost, or damage to the Tenant by reason of the exercise by the City of the right of entry described herein for the purposes listed above. The making of periodic inspection or the failure to do so shall not operate to impose upon 20 Landlord any liability of any kind whatsoever nor relieve the Tenant of any responsibility, obligations or liability assumed under this Lease. 8.2 Public Access to Waterways The Tenant recognizes that members of the public have a right to boat upon and otherwise lawfully enjoy the navigable waters of the Property and have a right to access these waters from the Property, so long as they create no obstruction to access for the Tenant or lawful visitors to the Property. Tenant agrees to take no action which hinders, impedes or interferes with access by lawful Property visitors to waterways and use of public beaches, shores, or ramps and such rights. Landlord recognizes that at times, unlawful access to the Property may occur. In the event unauthorized access occurs the Landlord will take immediate action and institute reasonable measures designed to protect the Area, Property and visitors to the Property. ARTICLE IX UTILITIES 9.1 Utilities The Landlord shall install and provide access to utilities and, where practical, install meters to monitor the utilities as part of the initial construction of the Facility. Landlord shall provide electrical installation inside the Facility and hook up to the electrical service, with outlets. Tenant shall, at its sole cost and expense, maintain electric current inside the Facility and arrange for a dumpster for regular commercial debris. Tenant must abide by the rules, regulations, schedules, and practices of the Landlord in the administration of these services. The Landlord reserves the right to interrupt, curtail or suspend the provision of any utility service, including but , not limited to, heating, ventilating and air conditioning systems and equipment serving the Area, to which Tenant may be entitled hereunder, when necessary by reason of accident or emergency, or for repairs, alterations or improvements in the judgment of Landlord desirable or necessary to be made or due to difficulty in obtaining supplies or labor or for any other cause beyond the reasonable control of the Landlord. The work of such repairs, alterations, or improvements shall be prosecuted with reasonable diligence. The Landlord shall in no respect be liable for any failure of the utility companies or governmental authorities to 21 supply utility service to Tenant or for any limitation of supply resulting from governmental orders or directives. Tenant shall not claim any damages by reason of the Landlord's or other individual's interruption, curtailment or suspension of a utility service, nor shall the Lease or any of Tenant's obligations hereunder be affected or reduced thereby. Tenant, at its sole cost and expense, shall provide cleaning services for the Area. Tenant shall pay for all telephone services or other utility service Tenant may require, including, if necessary, the cost of installing phone lines or purchasing any other such equipment. Tenant, at its sole cost and expense, shall ensure that the Area will at all tunes be in a clean and sanitary condition and free from vermin, including by hiring a pest control company, as needed. In the event Tenant requires any additional services or utilities not mentioned herein, Tenant shall obtain the same at its sole cost and expense. Tenant shall provide any additional security it deems necessary to protect its operations and equipment. Tenant shall insure that all appropriate equipment and lights have been turned off and appropriate doors locked at the close of operations within the Area each day. Tenant shall be responsible to take prudent preventive maintenance measures to safeguard the Area from storms and other "Acts of God" as that term is defined by Florida law. 9.2 Landlord not Liable for Failure of Utilities The Landlord shall not be liable for any loss of performance income to Tenant due to any failure of water supply, sewer, gas or electric current. ARTICLE X NO REPRESENTATION BY THE LANDLORD 10.1 Condition of Property A. Tenant accepts the Area "As Is", in its present condition as of the Commencement Date of the Lease and state of repair without any representation by or on behalf of Landlord, and agrees that Landlord shall, under no circumstances, be liable for any latent, patent or other defects in the Area. Tenant, at its sole cost and expense, shall maintain the Area in good order and repair at all tunes and in an attractive, clean, safe and sanitary condition an shall suffer no waste or injury thereto. B. Tenant shall be responsible for all repairs to the Area required or caused by Tenant's use of any part thereof without limiting the generality of the foregoing. Tenant is specifically 22 required to replace all light bulbs and ballasts as needed, and make repairs (a) to the portion of any pipes, lines, ducts, wires or conduits contained within or serving the Area; (b) to windows, plate glass, doors and any fixtures or appurtenances composed of glass; (c) to Tenant's sign, if applicable; and (d) to the Area or the Property when repairs to same are necessitated by any act or omission of Tenant or the failure of Tenant to perform its obligations under this Lease. C. The Tenant agrees to maintain the Facility and Area at the Tenant's sole cost and expense in order to comply with all City, County and State building code requirements for Tenant's occupancy thereof. D. If Tenant installs any electrical equipment that overloads the lines in the Area or the Property, Landlord may require Tenant to make whatever changes to the lines as may be necessary to render same in good order and repair, and in compliance with all applicable legal requirements. E. If, in an emergency, tenant cannot be reached, after all reasonable efforts have been exhausted and it shall become necessary to make prompt emergency repairs to the Area, Landlord may enter the Area and proceed forthwith to have repairs or replacements made and pay the cost thereof. Within thirty (30) days after Landlord renders a bill, therefore, Tenant shall reimburse the Landlord for the cost of making the repairs G. Landlord shall be responsible for all structural repairs to the Area. ARTICLE XI MAINTENANCE AND REPAIR OF PROPERTY 11.1 Tenant's Maintenance and Repair of the Property The Tenant shall, at its sole cost and expense, at all times during the Tenn hereof, provide routine maintenance. The Tenant shall perform at least daily removal of litter within fifty (50) feet of all facilities and space occupied by the Tenant. Tenant shall keep the Area in good order and repair, clean. Tenant's repairs, replacements and maintenance obligations shall include, but not be limited to, its heating and cooling equipment; tenant's installed equipment; fixtures; improvements; floor covering; the exterior and interior portions of all doors, door locks, interior walls and ceilings. Tenant shall be responsible for maintenance and repair costs related to the Area. Landlord shall not impede Tenant from pursuing any third party warranties that may exist with the manufacturer of the facility. 23 ARTICLE XII INDEMNIFICATION AND INSURANCE 12.1 Indemnification To the extent authorized pursuant to §768.28, Fla. Stat., the Tenant shall indemnify, hold harmless and defend the City from and against any and all claims, suits, actions, damages or causes of action of whatever nature, for any personal injury, loss of life or damage to property sustained in or on the Area, by reason of or as a result of Tenant's use or operations thereon, and from and against any orders, judgments or decrees which may be entered thereon, and from and against all costs, attorney's fees, expenses and liabilities incurred in and about the defense of any such claims and the investigation thereof; even if the claims, costs, liabilities, suits, actions, damages or causes of action arise from the negligence or alleged negligence of the City, including any of its employees, agents or officials. 12.2 Insurance Tenant is required to obtain and maintain or cause to be obtained and maintained throughout the Tenn of this Lease, the types and amounts of insurance coverage set forth in Exhibit "C", incorporated herein and made a part of this Lease. The City reserves the right to reasonably amend the herein insurance requirements by the issuance of a notice in writing to the Tenant, which amended insurance requirements shall be subject to the reasonable approval by Tenant, which approval shall not be unreasonably withheld. 12.3 Damage or Loss to the Property Neither party shall be liable for injury or damage which may be sustained by the Property or sustained by goods, wares, merchandise or other property of the Tenant, or the Tenant's employees, agents, contractors, invitees, and guests or of any other person in or about the Property caused by or resulting from any peril whatsoever which may affect the Property, including, without limitation, fire, steam, electricity, gas, water, or rain which may leak or flow from or into any part of the Property, or from the breakage, leakage, obstruction or other defects of the pipes, sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures of the Property, or from hurricane or any act of God or any act of negligence of any user of the 24 facilities or occupants of the Property unless caused by the negligence of the Landlord or the Tenant, their officers, employees, agents or representatives. ARTICLE XIII DESTRUCTION OF PROPERTY 13.1 Destruction of Property If the Area shall be damaged by fire, the elements, accident or other casualty (any of such causes being referred to herein as a "Casualty"), but the Area shall not be rendered wholly or partially unusable, the Landlord shall promptly cause such damage to be repaired, subject to collection of sufficient insurance proceeds. If, as a result of Casualty, the Area shall be rendered partially unusable, then, the Landlord shall cause such damage to be repaired. In such event, such repairs shall be made at the expense of the Landlord, subject to the Tenant's responsibilities set forth herein. The Landlord shall not be liable for interruption to the Tenant's business or for damage to or replacement or repair of Tenant's personal property (including, without limitation, inventory, trade fixtures, floor coverings, furniture and other property removable by the Tenant under the provisions of this Lease) or for damage to or replacement or repair of any improvements installed by Tenant at the Area. If, as a result of Casualty, the Area and/or operations are substantially rendered unuseable, rent is not due and lease term is stayed until such time as occupancy and operations may be reestablished. Tenant may at its expense install a temporary structure from which to operate, subject to Landlords approval. The Landlord shall not be obligated to spend more for the cost of repair than net insurance proceeds recovered with respect to such loss. In this regard, to the extent funds are not available to fully restore the Area to its pre -Casualty condition, the Landlord's repair of the Area may not result in the Area being restored to its condition prior to any such Casualty. In the event the cost to repair the Area is less than the net insurance proceeds received by the Landlord, all excess insurance proceeds shall inure to' the benefit of the Landlord. 13.2 Option to Terininate Due to Casualty If the Area is (a) rendered wholly unusable, or (b) damaged as a result of any cause which is not covered by the insurance, or (c) insurance proceeds are insufficient to restore the Area to a 25 condition reasonably necessary to carry out the purposes described in this Lease, or (d) damaged or destroyed in whole or in part during the Term or (e) if the Area is damaged to the extent that it cannot be used for Tenant's intended purpose for a period of ninety (90) or more consecutive days, then, the Tenant may elect to terminate this Lease by giving to the Landlord notice of such election within one -hundred and twenty (120) days after the occurrence of such event. If Tenant elects to terminate the Lease, the rights and obligations of the Parties shall cease as of the date specified in such notice. Upon termination of this Lease pursuant to this section, the Tenant and the Landlord shall be released from any further obligations hereunder. Alternatively, the Tenant may elect, at its expense, to install a temporary facility from which to operate, subject to Landlord's consent in writing, until such time as the Facility and Area are repaired to a mutually acceptable tenantable condition. During said time of temporary occupancy, Minimum Monthly Rent shall abate and the lease period will be tolled and no Minimum Monthly Rent due until necessary repairs are completed. Tenant will continue to pay the Percentage Rent of Gross Revenues as set forth in Section 3.1(B) and (C). In the event the Area is rendered unusable in the entirety, Tenant may elect to toll the Lease and operations shall be suspended until such time as the Facility and Area are restored for use. Upon reestablishing occupancy, the tolling period shall end and the lease shall continence from the date of election to toll the lease period. 13.3 No Liability In no event shall the Landlord be liable or responsible for damage to the personal property, improvements, fixtures and/or equipment belonging to or rented by Tenant, its officers, agents, employees, invitees or patrons, including without limitation, damages resulting from fire, steam, electricity, gas, water, rain, vandalism or theft which may leak or flow from or into any part of the Area, or from the breakage, leakage, obstruction or other defects of the pipes, sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures of the Area, or from hurricane or any act of God or any act of negligence of Tenant, its officers, employees, agents, invitees, or patrons or any person whomsoever whether such damage or injury results from conditions arising at or about the Area or upon other portions of the Property or from other sources. 26 ARTICLE XIV ASSIGNMENT 14.1 Assignment Tenant shall not, at any time during the tern of this Lease, sublease, assign, mortgage, pledge or otherwise encumber this Lease or any interest hereunder. ARTICLE XV OWNERSHIP OF IMPROVEMENTS 15.1 Ownership of Improvements As of the Commencement Date and throughout the Term, title to all buildings and improvements thereon shall be vested in Landlord. Furthermore, title to all alterations made in or to the Property and/or the Area, whether or not by or at the expense of Tenant, shall, unless otherwise provided by written agreement, immediately upon their completion become the property of the Landlord and shall remain and be surrendered with the Area. This does not include Tenant's personal property, retail fixtures, signs, fitness equipment, any leased appliances, displays, storage racks, or other removable fixtures of the tenant. ARTICLE XVI SIGNAGE 16.1 Signs The Tenant shall be permitted, subject to obtaining approval from the City of Miami Planning and Zoning Department, to place signs or posters, as related to the Tenant's operations on the areas designated, including signs or banners from event sponsors, on the exterior and interior of the Area and on the Property as described in the Signage Plan attached herewith and incorporated herein as Exhibit "H". Tenant further agrees that such signs, awning, canopy, decoration, lettering, advertising matter or other thing as may be approved shall be maintained in good condition and repair at all times. The Tenant shall not permit any signs, advertising materials or other objects to be placed or hung on any portion of the Area or allow any change or modification to the exterior or interior of the Area, except as provided for in the City of Miami Code and approved by the Director of Real Estate and Asset Management. The Tenant must also obtain approval from all governmental authorities having jurisdiction, and must comply with all 27 applicable requirements set forth in the City of Miami Code and Zoning Ordinance, the Sign Regulations of Miami -Dade County or governmental authorities having jurisdiction over the location of the sign or poster, as applicable. Upon the expiration or earlier termination of this Lease, for any reason, the Tenant shall, at its sole cost and expense, remove and dispose of all signs, advertising materials or other objects of Tenant located on the areas designated on the exterior and interior of the Area. ARTICLE XVII SPECIAL ASSESSMENTS AND TAXES 17.1 Special Assessments and Taxes In the event the Property is subject to real estate taxation, charges or assessments and the Tenant does not pay same, within thirty (30) days the Landlord shall have the right to terminate this Lease upon providing fifteen (15) days written notice to the Tenant and the Tenant shall be liable for the taxes. Tenant shall pay before any fine, penalty, interest or costs is added for nonpayment, any and all charges, fees, taxes, imposition, levy or assessments levied against the Area and/or against any occupancy interest or personal property of any kind, owned by or placed in, upon or about the Area by Tenant, including, but not limited to, ad valorem taxes, fire fees and parking surcharges. In the event Tenant appeals a tax or fee, Tenant shall immediately notify Landlord of its intention to appeal said tax or fee and shall furnish and keep in effect a surety bond of a responsible and substantial surety company reasonably acceptable to Landlord or other security reasonably satisfactory to Landlord in an amount sufficient to pay one hundred percent of the contested tax or fee with all interest on it and costs and expenses, including reasonable attorneys' fees, to be incurred in connection with it. 17.2 Payment in Lieu of Taxes As stated in the RFLI, the Tenant shall be responsible for the following payments or for payments in lieu of taxes ("PILOT") during the use period in the event the Area is deemed exempt from ad valorem real estate taxes, in which case, Tenant will pay the Landlord an annual PILOT in equal monthly installments, commencing at Seventy Dollars ($70.00) in the first Lease Year. The PILOT will increase on each anniversary of the Commencement Date at a rate equal 28 to three percent (3%). If Tenant is required to pay ad valorem taxes on the Area, it shall not be required to pay the PILOT° ARTICLE XVIII NOTICE 18.1 Notice All notices or other communications which may be given pursuant to this Lease shall be in writing and shall be deemed properly served if delivered by personal service or by certified mail addressed to Landlord and Tenant at the addresses indicated herein or as the same may be changed from time to. time, or for purposes of canceling this Lease, the Landlord may serve notice by posting it at the Area. Such notice shall be deemed given on the day it is posted at the Area; on which personally served; or if by certified mail, on the fifth day after being mailed or the date of actual receipt, whichever is earlier. The notices addresses of the Parties are: CITY OF MIAMI City of Miami City Manager 3500 Pan American Drive Miami, FL 33133 COPY TO: City of Miami Attn: Director Department of Real Estate and Asset Management 444 SW 2" `1 Avenue, 3'd Floor Miami, FL 33130 City of Miami City Attorney 444 SW 2nd Avenue, Suite 945 Miami, FL 33130 TENANT Virginia Key Outdoor Center, LLC Esther Alonso-Luft, Owner/Manager 2753 SW 27th Avenue, Miami, FL 33133 COPY TO: ARTICLE XIX DEFAULT 29 19.1 Default Each of the following events is defined as an Event of Default: (a) The failure of the Tenant to perform any of the covenants, conditions and agreements of this Lease on the part of the Tenant to be performed and the continuance of the failure for a period of fifteen (15) days after written notice (which notice shall specify the nature of the default) from the Landlord to the Tenant, unless with respect to any default which cannot be cured within fifteen (15) days, the Tenant, in good faith, promptly after receipt of written notice, shall have commenced and continued diligently to reasonably prosecute all action necessary to cure the default and shall have so notified the Landlord in writing; (b) Failure of the Tenant to continuously operate within the Permitted Uses, as required by Sections 2.1 and 2.2 of this Lease. 19.2 Landlord's Remedies in Event of Default The Landlord may treat anyone or more of the Event(s) of Default as a breach of this Lease, and thereupon at its option, the Landlord shall have, in addition to every other right or remedy existing at law or in equity, the right to do anyone or more of the following: (a) Elect to cancel and terminate this Lease and dispossess the Tenant by giving a ten (10) day notice of such election to the Tenant; and reenter the Property and/or Area. In the event of such termination, the Landlord shall have the right to seek any damages sustained by it by reason of the Tenant's actions or inactions and the resulting termination of this Lease. Upon termination of this Lease, the Tenant shall immediately cease all operations at the Area and Property and surrender the Area in accordance with the provisions contained herein. (b) Perform on behalf of and at the expense of the Tenant, any obligation of the Tenant under this Lease which the Tenant has failed to perform, the cost of which performance by the Landlord, together with interest thereon at the rate of ten percent (10%) from the date of such expenditure, shall be deemed additional payments and shall be payable by the Tenant to the Landlord upon demand. (c) Exercise any other legal or equitable right or remedy, which it may have under this Lease, at law or in equity. Notwithstanding the provisions of clause (b) above and 30 regardless of whether an Event of Default shall have occurred, the Landlord may exercise the remedy described in clause (b) without any notice to the Tenant if the Landlord, in the exercise of its good faith judgment, believes it would be injured by failure to take rapid action or if the unperformed obligation of the Tenant constitutes an emergency. All of the remedies of the Landlord shall be cumulative, and enforcing one or more of the remedies herein provided upon an Event of Default and shall not be deemed or construed to constitute a waiver of such default, or an election of remedies. 19.3 Repeated Defaults - Tenant If more than twice during any twelve (12) month period the Tenant fails to satisfy or comply with the same or substantially the same material requirements or provisions of this Lease (except where such repeated default arises from acts of God or results from causes or conditions not attributable, directly or indirectly, to the Tenant, its guests, employees, agents or others within the Tenant's control), then at the Landlord's election, the Tenant shall not have any right to cure such repeated default. In the event of the Landlord's election not to allow the cure of a repeated failure to satisfy or comply, the Landlord shall have all of the rights and remedies provided in this Lease relative to an Event of Default immediately upon the occurrence of such repeated failure to satisfy or comply. 19.4 Events of Default - Landlord Each of the following events is defined as an Event of Default: (a) The failure of the Landlord to perform any of the material covenants, conditions and terms of this Lease on the part of the Landlord to be performed and the continuance of the failure for a period of thirty (30) days after written notice (which notice shall specify the nature of the default) from the Tenant to the Landlord, unless with respect to any default which cannot be cured within thirty (30) days, the Landlord, in good faith, promptly after receipt of written notice, shall have commenced and continued diligently to reasonably prosecute all action necessary to cure the default and shall have so notified the Tenant in writing; (b) The filing of a bankruptcy petition pursuant to Chapter 9, Title 11 of the United States Bankruptcy Code Chapter (11 USC CHAPTER 9 - ADJUSTMENT OF DEBTS OF A MUNICIP ALITY). 31 19.5 Tenant's Remedies in Event of Default The Tenant may treat anyone or more of the Event(s) of Default as a breach of this Lease, and thereupon at its option, the Tenant shall have, in addition to every other right or remedy existing at law or in equity, the right to do anyone or more of the following: (a) Elect to cancel and terminate this Lease by giving a ten (10) day notice of such election to the Landlord. Upon termination of this Lease, the Tenant shall immediately cease all operations at the Area and Property and surrender the Area in accordance with the provisions contained herein. (b) Exercise any other legal or equitable right or remedy, which it may have under this Lease, at law or in equity. All of the remedies of the Tenant shall be cumulative, and enforcing one or more of the remedies herein provided upon an Event of Default and shall not be deemed or construed to constitute a waiver of such default, or an election of remedies. 19.6 Repeated Defaults - Landlord If more than twice during any twelve (12) month period the Landlord fails to satisfy or comply with the same or substantially the same material requirements or provisions of this Lease (except where such repeated default arises from acts of God or results from causes or conditions not attributable, directly or indirectly, to the Landlord, its guests, employees, agents or others within the Landlord's control), then at the Tenant's election, the Landlord shall not have any right to cure such repeated default. In the event of the Tenant's election not to allow the cure of a repeated failure to satisfy or comply, the Tenant shall have all of the rights and remedies provided in this Lease relative to an Event of Default immediately upon the occurrence of such repeated failure to satisfy or comply. 19.7 Surrender of the Area In the Event of Default or expiration of this Lease, Tenant shall peacefully surrender the Area by the time specified broom clean and in good condition and repair together with all alterations, fixtures, installation, additions and improvements which may have been made in or attached on or to the Area. Upon surrender, Tenant shall promptly remove all its personal property and Tenant shall repair any damage to the Area caused thereby. Should Tenant fail to 32 repair any damage caused to the Area within ten (10) days after receipt of written notice from Landlord directing the required repairs, Landlord shall cause the Area to be repaired at the sole cost and expense of Tenant. Tenant shall pay Landlord the fullcost of such repairs within ten (10) days of receipt of an invoice indicating the cost of such required repairs. Landlord may require Tenant to restore the Area so that the Area shall be as it was on the Commencement Date. In the event Tenant fails to remove its personal property from the Area within the time limit set by the notice, said personal property shall be deemed abandoned and thereupon shall become the sole personal property of the Landlord. The Landlord, at its sole discretion and without liability, may remove and/or dispose of same as Landlord sees fit, all at Tenant's sole cost and expense. The requirements of this section shall survive the expiration or termination of this Lease. ARTICLE XX HOLDING OVER 20.1 Holding Over If Tenant remains in possession of the Area after the expiration of the Term without a new lease, Tenant shall be deemed to be occupying the Area on a month to month basis, subject to the covenants, conditions and agreements set forth on this Lease. Rent shall continue to be paid as described on Section 3.1 of this Lease. If Tenant fails to surrender the Area and/or Property on the termination of this Lease, Tenant shall, in addition to other liabilities to Landlord, indemnify, defend and hold Landlord harmless from loss and liability resulting from that failure including, but not limited to, claims made by a succeeding tenant. The exercise of Landlord's rights shall not be interpreted to allow Tenant to continue in possession, nor shall it be deemed an election to extend the Term beyond a month -to -month basis. If Landlord, in its sole discretion, determines to permit Tenant to remain in the Area on a month -to -month basis, the month -to -month tenancy shall be terminated on 30 days prior written notice given by either party to the other party. Tenant shall be provided ten (10) days from the termination of month -to -month tenancy to wind down operations and remove personal property, equipment, merchandise, and other property. In the event Tenant fails to remove its personal property from the Area within the time limit set by the notice, said personal property shall be deemed abandoned and thereupon shall 33 become the sole personal property of the Landlord. The Landlord, at its sole discretion and without liability, may remove and/or dispose of same as Landlord sees fit, all at Tenant's sole cost and expense. ARTICLE XXI NON-DISCRIMINATION & EQUAL OPPORTUNITY 21.1 Nondiscrimination In the performance of this Lease or any extension thereof, Tenant and/or its authorized agents shall not discriminate in connection with its occupancy and use of the Area and improvements thereon, or against any employee or applicant for employment because of sex, age, race, color, religion, ancestry or national origin. Tenant will use reasonable efforts so that minority applicants are employed and that employees are fairly treated during employment without regard to their sex, age, race, color, religion, ancestry, marital status, or national origin. Such action may include, but not be limited to, the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination. 21.2 Equal Employment Opportunities The Tenant agrees that during the Lease Tenn; (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 for employment, notices, the form of which is to be provided by the Landlord, setting forth provisions for this nondiscrimination clause; (c) in all solicitations or advertisements for employees placed by or on behalf of the Tenant 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 form of which is to be provided by the Landlord, advising the union or representative of the Tenant's commitment and posting copies of the notice in a conspicuous places available to employees and applicants for employment. 34 ARTICLE XXII MISCELLANEOUS PROVISIONS 22.1 Ingress and Egress The Tenant shall have the right of complete ingress/egress to the Property. 22.2 Landlord Approval Whenever prior approvals must be given hereunder by the City Manager, or his/her authorized designee, shall approve or disapprove any such item in its reasonable discretion unless a different standard is expressly provided in this Lease with respect to such item. 22.3 Safety Tenant will allow Landlord inspectors, agents or representatives the ability to monitor its compliance with safety precautions as required by federal, state or local laws, rules, regulations and ordinances. By performing these inspections the Landlord, its agents, or representatives are not assuming any liability by virtue of these laws, rules, regulations and ordinances. Tenant shall have no recourse against the Landlord, its agents or representatives from the occurrence, non- occurrence or result of such inspection(s). Upon occupancy of the Area, Tenant shall contact the Landlord's Risk Management Department to schedule the inspection(s). 22.4 Successors and Assigns This Lease shall be binding upon the Parties hereto, their heirs, executors, legal representatives, successors and assigns. 22.5 Termination of Operations at Property Upon the expiration or earlier termination of this Lease by lapse of time or otherwise, the Tenant shall promptly and peacefully tenninate its operations at the Area and Property with the Landlord in accordance with the covenants herein contained. 35 22.6 Amendments No amendments or modifications to this Lease shall be binding on either party unless in writing, approved as to form and correctness by the City Attorney, and signed by both parties. The City Manager is authorized to amend or modify this Lease as needed. 22.7 Construction of Lease This Lease shall be construed and enforced according to the laws of the State of Florida and venue for any litigation shall be in Miami -Dade County, Florida. 22.8 Waiver of Jury Trial The parties hereby knowingly, irrevocably, voluntarily and intentionally waive any right either may have to a trial by jury in respect of any action, proceeding or counterclaim based on this Lease, or arising out of, under, or in connection with this Lease or any amendment or modification of this Lease, or any other agreement executed by and between the parties in connection with this Lease, or any course of conduct, course of dealing, statements (whether verbal or written) or actions of any party hereto. This waiver of jury trial provision is a material inducement for the Landlord and Tenant entering into the subject transaction. 22.9 Severability Should any provisions, paragraphs, sentences, words or phrases contained in this Lease be determined by a court of competent jurisdiction to be invalid, illegal or otherwise unlawful under the laws of the State of Florida or the City, such provisions, paragraphs, sentences, words or phrases shall be deemed modified to the extent necessary in order to conform with such laws, and the same may be deemed severable by the Landlord, and in such event, the remaining terms and conditions of this Lease shall remain unmodified and in full force and effect. 22.10 Waiver No failure on the part of either party to enforce or insist upon performance of any of the terns of this Lease, nor any waiver of any right hereunder by the Landlord, unless in writing, shall be construed as a waiver of any other tern or as a waiver of any future right to enforce or insist upon the performance of the same tern. 36 22.11 Captions The captions contained in this Lease are inserted only as a matter of convenience and for reference and do not define, limit or prescribe the scope of this Lease or the intent of any provisions thereof. 22.12 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 information regarding radon and radon testing may be obtained from your county public health unit. Tenant may, have an appropriately licensed person test the Area for radon. If the radon level exceeds acceptable EPA standards, the Landlord may choose to reduce the radon level to an acceptable EPA level, failing which either party may cancel this Lease. 22.13 Joint Preparation This Lease is the result of negotiations between the Parties and has been typed/printed by one party for the convenience of both Parties. Should the provisions of this Lease require judicial or arbitral interpretation, it is agreed that the judicial or arbitral body interpreting or construing same shall not apply the assumption that the terms hereof shall be more strictly construed against one party by reason of the rule of construction that an instrument is to be construed more strictly against the party which itself or through its agents prepared same, it being agreed that the agents of both Parties have equally participated in the preparation of this Lease. 22.14 Counterparts This Lease may be executed in two or more counterparts, each of which shall constitute an original but all of which, when taken together, shall constitute one and the same agreement. 22.15 Court Costs and Attorney(s) Fees In the event it becomes necessary for the Landlord to institute legal proceedings to enforce or interpret the provisions of this Lease, Tenant shall pay the Landlord's court costs and attorney's fees as provided by Florida Statutes Section 57.105 through all trial and appellate levels. Tenant acknowledges that Florida law provides for mutuality of attorney's fees as a 37 remedy in contract cases and specifically and irrevocable waives its right to collect attorney's fees from the Landlord under applicable laws, including specifically, but not limited to Section 57.105, Florida Statutes. It is the express intent of the parties hereto that in no event will the Landlord be required to pay Tenant's attorney's fees and court costs for any action arising out of this Lease. In the event that Tenant's waiver under this section is found to be invalid then Tenant agrees that the Landlord's liability for Tenant's attorney's fees and court costs shall not exceed the sum of $100.00. In the event that the waiver and limitations contained herein are found to be invalid, or are otherwise not upheld, then the provisions of this Section shall become null and void and each party shall be responsible for its own attorney's fees and costs. 22.16. Conflict of Interests Tenant is aware of the conflict of interest laws of the City of Miami (Miami City Code Chapter 2, Article V), Dade County, Florida (Dade County Code, Section 2-11.1 et. seq.) and of the State of Florida as set forth in the Florida Statutes, and agrees that it will fully comply in all respects with the terns of said laws and any future amendments thereto. Tenant covenants that no person or entity under its employ, presently exercising any functions or responsibilities in connection with this Lease, has any personal financial interests, direct or indirect, with the Landlord. Tenant further covenants that, in the performance of this Lease, no person or entity having such conflicting interest shall be utilized in respect to services provided hereunder. Any such conflict of interest(s) on the part of Tenant, its employees or associated persons, or entities must be disclosed in writing to the Landlord. 22.17 Public Records Tenant understands that the public shall have access, at all reasonable times, to Landlord contracts, subject to the provisions of Chapter 119, Florida Statutes, and agrees to allow access by the Landlord and the public to all documents subject to disclosure under applicable law. 22.18 Third Party Beneficiary This Lease is solely for the benefit of the Parties hereto and no third party shall be entitled to claim or enforce any rights hereunder. 38 22.19 No Partnership Nothing contained herein shall make, or be construed to make any party a principal, agent, partner or joint venture of the other. 22.20 Authority Each of the parties hereto acknowledges it is duly authorized to enter into this Lease and that the signatories below are duly authorized to execute this Lease in their respective behalf. 22.21 Binding Effect This Lease shall not be binding on the Tenant until such time as the City Commission approves this Lease. 22.22 Entire Lease This instrument and its attachments constitute the sole and only agreement of the parties hereto and correctly set forth the rights, duties and obligations of each to the other as of its date. Any prior agreements, promises, negotiations, or representations not expressly set forth in this Lease are of no force or effect. This Lease is the result of negotiations between the parties and has been typed/printed by one party for the convenience of both parties, and the parties covenant that this Lease shall not be construed in favor of or against either of the parties. 22.23 Force Majeure If either party is delayed, hindered or prevented from the performance of an obligation because of strikes, lockouts, labor troubles, the inability to procure materials, power failure, restrictive governmental laws or regulations, riots, insurrection, war or another reason not the fault of the party delayed, but not including financial inability, the performance shall be excused for the period of delay. The period for the performance shall also be extended for a period equal to the period of delay. Tenant shall not be excused from the prompt payment of rental, additional rental or other payments. It shall be a condition of Tenant's right to claim an extension that Tenant notify Landlord, in writing, within 10 days after the occurrence of the cause, specifying the nature of the cause and the period of time necessary for performance. 39 IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease, or have caused the same to be executed, as of the date and year first above written. ATTEST: By: Todd B. Hannon City Clerk APPROVED AS TO INSURANCE REQUIREMENTS: LANDLORD: CITY OF MIAMI, a municipal corporation of the State of Florida By: Daniel J. Alfonso City Manager APPROVED AS TO LEGAL FORM AND CORRECTNESS: By: By: Ann -Marie Sharpe, Director Risk Management Department Victoria Mendez City Attorney 40 TENANT: By: Virginia Key Outdoor Center, LLC Esther Alonso-Luft 1 Manager ATTESTED BY: By: CORPORATE SEAL Name Title Company Name By: Name Title Company Name 1 Submit to the Real Estate and Asset Management Director Virginia Key Outdoor Center, LLC Resolution authorizing Manager to bind the LLC prior to Execution of this lease. 41 EXHIBIT "A" Area Location RICKENBACKER CAUSEWAY (on Arthur Lamb Jr. Road) At Virginia Key MIAMI, FLORIDA 42 EXHIBIT "B" The Project FWAECT 9 - was 7FE CITY OF pyPNl Ahie Key Pre -Fab! b� 8uFacility 43 EXHIBIT "C" INSURANCE REQUIREMENTS I. Commercial General Liability A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence $1,000,000 General Aggregate Limit $ 2,000,000 Personal and Adv. Injury $ 1,000,000 Products/Completed Operations $ 1,000,000 B. Endorsements Required City of Miami included as an Additional Insured Virginia Key Beach Park Trust/Historic Virginia Beach listed as additional insured Employees included as insured Contingent and Contractual Liability Primary and Non Contributory II. Business Automobile Liability A. Limits of Liability Bodily Injury and Property Damage Liability Combined Single Limit Owned/Scheduled Autos Including Hired, Borrowed or Non -Owned Autos Any One Accident $ 1,000,000 B. Endorsements Required City of Miami included as an Additional Insured Virginia Beach Park Trust/Historic Virginia Beach listed as additional insured III. Worker's Compensation Limits of Liability Statutory -State of Florida Waiver of Subrogation IV. Employer's Liability A. Limits of Liability $100,000 for bodily injury caused by an accident, each accident 44 $100,000 for bodily injury caused by disease, each employee $500,000 for bodily injury caused by disease, policy limit V. Professional Liability/Errors and Omissions Coverage Combined Single Limit Each Claim $1,000,000 General Aggregate Limit $1,000,000 Deductible- not to exceed 10% VI. Umbrella (Excess Form, Liability Form) $1,000,000 A. Endorsements Required City of Miami included as an Additional Insured Virginia Key Beach Park Trust/Historic Virginia Beach listed as additional insured VII. Payment and Performance Bond, TBD (If Applicable) The above policies shall provide the City of Miami with written notice of cancellation or material change from the insurer not less than (30) days prior to any such cancellation or material change. Companies authorized to do business in the State of Florida, with the following qualifications, shall issue all insurance policies required above: The company must be rated no less than "A" as to management, and no less than "Class V" as to Financial Strength, by the latest edition of Best's Insurance Guide, published by A.M. Best Company, Oldwick, New Jersey, or its equivalent. All policies and /or certificates of insurance are subject to review and verification by Risk Management prior to insurance approval. 45 EXHIBIT "D" POSSESSION DATE CERTIFICATE This Possession Date Certificate is entered into by Landlord and Tenant pursuant to Section 1.3 of the Lease (as hereinafter defined). Capitalized terms not defined herein shall have the meanings provided in the Lease. 1) Definitions. In this certificate the following terms have the meanings given below: Landlord: City of Miami Tenant: Lease: Lease dated as of between City and Tenant. Subject Property: As described and identified in Exhibit "B" attached to the Lease. 2) Confirmation of Possession Date: Landlord and Tenant confine that the Possession Date of the Lease is and the expiration date of the Initial Term is 3) Acceptance of the Subject Property: Tenant accepted the Subject Property on , 20 with the rent and any other fees due under the Lease, including but not limited to the fees described in Section , commencing on the same date. Landlord and Tenant have executed this Possession Date Certificate as of the dates set forth below: 46 ATTEST: By: Todd B. Hannon City Clerk APPROVED AS TO FORM AND CORRECTNESS: Victoria Mendez City Attorney STATE OF FLORIDA COUNTY OF DADE The foregoing instrument was acknowledge 20 , by produced not) take an oath. (type of Signature of Notary Public Print Name Commission No. LANDLORD: CITY OF MIAMI, a municipal corporation of the State of Florida By: Daniel J. Alfonso City Manager before me this day of , who is personally known to me or who has identification) as identification and who did (did 47 TENANT: a Florida corporation ATTESTED BY: By: By: Name Name Title Title Company Naive Company Name STATE OF FLORIDA COUNTY OF DADE ) The foregoing instrument was acknowledged before me this day of 20 , by , who is personally known to me or who has produced (type of identification) as identification and who did (did not) take an oath. Signature of Notary Public Print Naive Commission No. 48 EXHIBIT "F" ADDITIONAL ACTIVITIES AND SERVICES [TO BE INSERTED PRIOR TO EXECUTION] 49 EXHIBIT "G" GROSS REVENUE EXHIBIT 'En GROSS REVENUE REP DRT TEttiad,[T VIRGIN LA KEY' OUTDOOR GENTER. ELG Doer a Fiat(t P MI Resit Paid Percentage Rant Groaa iReyertueSo rce Soles !WOMB Menet TSB Annus& trasa. Remarries Itentzetion or or DedrJction° ExcluelormlBerructites Amount Total Exftunranantrlu dlcnra Melva Grose IReveres° Ammer PerCEIrbgo PRA Stare Melo, Total Annul Percentage Rent T€ TAL.'RENT DUE tRurgeinctadreiBut a.x Pait o Supplantent Pao A 0.Udn umflers 'dear 1 S% a GMEGs Revenues up to $503;i1JC e 10%e!f Grass s ay. o ,COD.L Year 2 3trd Thereafter 111% Err Gras Re.eutesarro Ya 12%orGross r.v,rer s rlExcess arS NIO,GX1OE t Moll certify to the accuracy Dila wrt,.wad acknowiadgeteat { parrpaid all appl] s PAIRb Stela Maa arrd use tan.e Which .nre ring:and payable, whetlicidlreetlr,a lndliraatry, undo( FL St to T12le hi Stab( all 9ninda Departnesot car Rena nus *_ The City al'IrliarN can rely on MEI MIN®rlrartthty (apart:tb':t(etrrla ara eccuraieea :submitted %Mall:RE DATE REMARKS ThrePercallegei?er° rally Ereil to pay ti%itlrtn t* (66) days after the end area€3r LeLe Year. Tenarttslall delver le that:mated a stateanent setthtj feat bbe Grass IReventres °IAN then cif le Paw:dew Raft PFrbd(tie 'Ahr7111.3l Percentage Rent: Staten E"j. acid Tenant t snail pay rare fly Use a(nounl:af blare Rent due and pasta le,. IT any, to the Land oirt pursuant to de terms Erf tie Lease. Each Annual Percentage Rent Z tenant shall be erg/tiler-Id 0ErIlikl] U7 becurrideend correct byarr censer of Tens A. Mich statement (Grass Re+FEr u Regan) shall aric , She Dual Gross P evenue° .and;3n Itersizatirt ar ame exclusions or deanINISfartirw current Leas Year. Male check payable tire Ctty or ralarre and return H r l togalbere lh the peter rerr fl3rke lot:: CITY CfFMAMI DEPART (F OF REAL ESTATE AND ASSET M+MA EME fi .ATTENTION: LFASfE MANAGER 44dSW2tDAVENUE, 3Fd KOCH U M41, FL 3313n `GTuesRevenue IRepxatEs edtoorangearlelr skin. 50 EXHIBIT "H" SIGNAGE PLAN [TO BE INSERTED PRIOR TO EXECUTION] 51