HomeMy WebLinkAboutExhibitAttachnu.,w 8 — Forin Lease Agrecincrit
LEASE AGREEMENT'
THE CITY OF MIAMI
"m
FOR THE LEASE OF
LOCATED AT:
301 BISCAYNE BOULEVARD
MIAMI, FLORIDA 33132
Attachment 8 —.Forin Lease.Agreeinent
'TABLE OF CONTENTS
RECITALS
ARTICLE I INCORPORATION,EXHIBITS, & DEFINITIONS
Section 1.1 Incorporation by Reference
Section 1.2 Exhibits
Section 1.3 Definitions
Section 1.4 Priority of Documents
ARTICLE 11
LEASE OF' PREMISES
Section 2,1
Lease of Premises
Section 2.2
Purpose of Use and OCCLIpancy
Section 2.3
Suitability of Premises
Section 2.4
Limited Representations by Lessor
Section 2.5
Satisfaction of Liens
ARTICLE III
TERM
Section 3.1
Term of Lease
Section 3.2
Option to Renew
ARTICLE IV
RENT, SEC LJRITY' DEPOSIT, & FINANCIAL RECORDS
Section 4.1
Base Rent and Ticket Surcharge
Section 4.2
Security Deposit
Section 4.3
Lessee's Financial Records
Section 4.4
Reports by Lessee
Section 4.5
Right to Examine Financial Records
Section 4.6
Audit
Section 4.7
Lien for Rent & Other Charges
ARTICLE V
LEASEHOLD IMPROVEMENTS
Section 5.1
Lessee's Obligation to Provide and Fund Lcasebold Improvements
Section 5.2
Possession Date
Section 5.3
Payment and Performance Bond
Section 5.4
Contractor's Insurance
Section 5.5
Conveyance of Improvements
Section 5.6
Premises to Remain Free of Liens
Section 5,7
Lessor Approval
ARTICLE VI CONDUCT OF BUSINESS BY LESSEE
Section 6.1 Operation of Lessee's Business
Section 6.2 Signs
ARTICLE VII MAINTENANCE, REPAIR & ALTERATION OF PREMISES
Section 7.1 Lessee's Maintenance Obligations
Section 7.2 Lessee's Repair Obligation
Section 7.3 Changes/Alterations
2
Allachinent 8 - Forin Lease,4greeincnt
ARTICLE VIII
INSURANCE AND INDEMNITY
Section 8.1
Insurance on the Premises
Section 8.2
Delivery of Insurance Policies
Section 8.3
Adjustment of Loss
Section 8.4
Indemnification of Lessor
Section 8.5
Waiver of Subrogation
Section 8.6
Release of Lessor
ARTICLE IX
SERVICES AND UTILITIES
Section 9.1
Lessee to Provide and Pay for Utilities
Section 9.2
Lessor Not Liable for Failure of Utilities
ARTICLE X
SUBLEASES, ASSIGNMENTS AND TRANSFERS
Section 10,1
Subleases, Assignments and Transfers
Section 10.2
Procedure for'"Fransfer
Section 10.3
Additional Consideration Payable to Lessor
Section 10.4
Definitions
Section 10.5
Acceptable Transfers
Section 10.6
Notice of Transfer
Section 10.7
Information as to Shareholders, etc.
Section 10.8
Effectuation of Permitted Transfers
Section 10.9
Criteria for Consent fior Transfer
Section 10.10
Liability of Lessee
Section 10.11
Acceptance of Rent from Transferee
Section 10.12
Transfers of the Lessor's Interest
Section 10.13
Mortgages of Leasehold Interest
ARTICLE XI COMPLIANCE WITH LAWS
Section 11. 1 Compliance With Laws
ARTICLE XII
ENVIRONMENTAL LIABILITY
Section 12.1
Definition of Terms
Section 12.2
Lessee's Environmental Covenant
Section 12.3
Survival of Lessee's and Lessor's Obligations
ARTICLE XIII
Section 13,1
Section 13.2
Section 13.3
Section 13.4
Section 13.5
Section 13.6
Section 117
Section 13.8
DAMAGE OR DESTRUCTION OF PREMISES
Definitions
Duty to Repair, Restore or Replace the Premises after Damage
Perfori-nance of Restoration Work
No Additional Right to Terminate
Lessee's Right to Terminate
Payment for Construction of Restoration Work
Collection of Insurance Proceeds
Unused Insurance Proceeds and Deposits
3
Attachinent 8 — For Lease Agreeinent
ARTICLE XIV
EMINENT DOMAIN
Section 14.1
Total Condemnation
Section 14.2
Partial Condemnation
Section 14.3
Adjustment of Rent Upon Partial Taking
Section 14.4
Deposit of Condemnation Award with Escrow Agent
Section 14.5
Temporary Taking
ARTICLE XV
PAYMENT OF TAXES, ASSESSMENTS AND OTHER
Section 16.7
IMPOSITIONS
Section 15.1
Payment of Taxes and Impositions
Section 15.2
Installment Payments of Ad Valorem Taxes and Impositions
Section 15.3
Payment in Lieu of Taxes
Section 15.4
Proof of Payment
ARTICLE XVI
DEFAULT OF LESSEE
Section 16.1
Lessee Default
Section 16.2
Remedies of Lessor
Section 16.3
No Waiver by Lessor
Section 16.4
Late Payment Fee
Section 16.5
Additional Guarantees
Section 16.6
Remedies Cumulative
Section 16.7
Lessor Default
ARTICLE XVII ACCESS
Section 17.1 Right of Entry
Section 17.2 Access Agreements
ARTICLE XVIII DAMAGE TO LESSEE'S PROPERTY
Section 18.1 Loss and Damage
ARTICLE XIX HOLDING OVER & SUCCESSORS
Section 19.1 Holding Over
Section 19.2 Successors
ARTICLE XX EQUAL EMPLOYMENT OPPORTUNITIES
Section 20.1 Equal Employment Opportunities
Section 20.2 Community Small Business Enterprise
Section 20.3 Non -Discrimination
ARTICLE XXI
Section 2,1.1
Section 21.2
Section 213
Section 21 A
Section 21.5
Section 21.6
MISCELLANEOUS
Accord and Satisfaction
Public Records
Entire Agreement
Independent Parties
Notices
Captions and Section Numbers
F.
Attachinew 8 —.Forni Leasc Agreenicnt
Section 21.7
Partial Invalidity
Section 21.8
Estoppel Certificate
Section 21.9
Waiver
Section 2 1. 10
Time is of the Essence
Section 21.1 I
No Discrimination
Section 21.12
Governing Law, Venue, & Attorney's Fees
Section 21 , 1 ' )
Waiver Of Counterclaims
Section 21.14
Waiver of Jury Trial
Section 21.15
Quiet Enjoyment
Section 21.10
Surrender of Possession
Section 21.17
Joint and Several Liability
Section 21.18
Third Party Beneficiary
Section 21.19
Radon
Section 21.20
No Liability for Act of other Party
Section 21.21
Rights, Privileges and Immunities, Covenants
Section 21.22
Consents
I
Attachinent 8 - Forin Leose Agi-cment
LEASE AGREEMENT
THIS LEASE AGREEMENT ("Lease"), made this day of 20_ __, by and
between the CITY OF MIAMI , as municipal corporation of the State of Florida having its offices
at 3500 Pan American Drive, Miami, Florida 331.33 ("l-cssor" or "City") and
ahaving its
offices at ....... . .... ... .. ................ .. . . . . . . ............ ("Lessee"). The Lessor and
Lessce (together the "Parties") hereby recite:
RECITALS
Whereas, the City is the owner in fee simple of certain land located in the City of'Mian-ii,
Miami -Dade County, Florida referred to herein as the "Premises, " as specifically set fbrth in
Exhibit JV
Whereas, in response to the TOUT Boat Services Request for Proposals ft _ _
("UP"), I-essee submitted to Lessor as proposal, NA,111ch was approved by tile City Commission on
. . ..... .. .. .......
by Rcsolutiora No.
Whereas, this Lease was negotiated pursuant to the authority expressly conferred by the
City of` Miami Charter, general law, and the City Commission Resolution No. which
authorized the execution of this Lease.
NVhereas, it IS file InUtU31 desire of"the parties that the Premises be [eased and demised by
Lessor to Lessee flor the purposes set forth ill this I -ease, SUtjjeCt to and UP011 the express terms and
c(,,m(litioils contained herein. The Parties believe that this Lease is consistent in all material respects
with, the RFP,
Now therefore, in consideration of. the f6regoing and of the rent, covenants, and
agreements hereinafter set forth, the Parties do hereby covenant and agree as follows,:
A1111"ICLE I
INCORPORATION, EXHIBITS1 & ISE FINIT IONS
Any word contained in the text of this Lease shall be read as the singular or the PlUral and
as file 111,1SCUline, fcminine or neuter gender as nlay be applicable in the particular Context. More
specifically, however, for the purposes of this Lease, the following words shall have the meanings
attributed to therm herein in subsection 13.
1.1 Incorporation by Reference
"Fhe foregoing Recitals are hereby incorporated into this Lease by this reflerence as if set
trot ill Full in the body of this Lease.
1.2 Exhibits
6
Atlachincnt 8 — Foi-in Lease Agrccment
Attached hereto and forraing a part of this Lease are the following Exhibits:
Exhibit A Survey/Legal Description of Prerniscs
Exhibit B Annual Ticket Surcharge Statement
Exhibit C Annual Gross Revenue Report
Exhibit D
Monthly Gross Revenue Report
Exhibit E
Lessee's Leaschold Improvements
Exhibit F
Payment & Performance Bond
Exhibit G
Contractor Insurance Requirements
Exhibit H
Leasehold Insurance Requirements
Exhibit I
Miami International Boat Show Layout
Exhibit J
Mooring and Dockage Agreement
Exhibit K
Marina Facilities Rules and Regulations
1.3 Definitions
1.3.1 "Acceptable Operator" means an entity possessing (A) a minflnuil-t of five (5)
years of experience (1) directly managing and operating a similar establishments
during the last fifteen (15) years; or (ii) directly involved in the ownership and day-
to-day operation of a similar business during the last ten (10) years; and (iii) in the
management and operation for each use proposed-, and (B) the threshold criteria
outlined in the City of Miami Department of Real Estate and Asset Management
RFP # ; and C) a good reputation in the business community; and (D)
adequate financial resources and personnel necessary for the proper performance
of all of Lessee's obligations under this Lease in a manner consistent with the
quality, reputation and economic viability of the Lessee's business at the Premises,
including (without limitation) the obligation of payment of Rent payable by Lessee
under this Lease.
1.3.2 "Additional Rent" means any and all additional suri-is, charges, or an-iounts of
whatever nature to be paid by Lessee in accordance with the terms of this Lease,
whether or not such suri-is, charges or amounts are referred to as Additional Rent.
1.3.3 "A1jj2licable Law(s)" means all laws, Florida Statutes, Codes, City and Miami -
Dade County Ordinances, orders, judgments, decrees and injunctions from courts
having jurisdiction over the Premises, rules, and requirements of State and local
boards and agencies with Jurisdiction over the Premises, now existing or hereafter
enacted, adopted, foreseen and unforeseen, ordinary and extraordinary, which may
be applicable to the Premises or any part of it.
1.3.4 "Ansi gnmen " refers to the complete transfer of the rights and obligations of the
Lessee under the Lease to a third party, whereupon the third party assignee becon-les
the Lessee under the Lease and takes over all of' the Premises and the rent and other
obligations associated with the Lease, thereby assuming the prior tenant's rights
and obligations.
1.3.5 refers to the third -party entity assuming the rights and obligations of
the Lessee or assignor or owner of the leasehold estate,
Attachment 8 --- Form Lease Agreentent
L3.6 "Assigno " refers to the Lessee that is assigning its rights and obligations Linder
this Lease to a. third -party entity. Unless released frorn liability from the City
pursuant to Section 10.10 of this Lease, which decision shall be conditioned on the
payment of the consideration at the time of Assignment set forth in Section 10.3 of
this Lease, the Assignor shall remain secondarily liable as a guarantor for the
obligations under the Lease, if the new Lessee (Assignee) defaults under the Lease.
1.3.7 "Average Repair Costs" shall mean the average of the previous five (5) years'
"repair and maintenance" line -item costs, inclusive of any capital items. Average
Repair Costs shall be calculated in order to determine the annual amount due to the
CapEx Fund, as specified it) section 7.4 below.
1.3.8 "Base Rent" shall mean the annual. Base Rent due and payable by Lessee on a
monthly basis for the use of the subject Premises and shall have the sum ascribed
to it in Section 4.1.1.
1.3.9 "Business Dan" means Monday through Friday, excluding legal holidays in the
City of Miami, Florida.
1.3.10 "City Ntanager" shall mean the Chief Administrative Officer of the City. In day to
day matters all decisions attributed to the City in this Lease ri-tay be made by the
City manager, or his authorized designee, unless otherwise specified.
1.3.11 "City Commission" shall n-ican the local legislative body of the Executive Mayor
City Commission. Notwithstanding Section 1,3,9 above the City Commission will
be required to approve the Lease and any amendments to the Lease
1.3.12 "Date of akinzy" means the earlier of (1) the date on which actual possession of
all or less than all of the Premises, as the case may be, is acquired by any lawful
power or authority Pursuant to the provisions of any applicable law; or (ii) the date
on which title to all or less than all of the Premises, as the case may be, has vested
in any lawful power or authority pursuant to the provisions of any applicable law.
1.3.13 "Fair Market Value" has the meaning set forth in Section 4.1.6 of this Lease and
secondarily as supplemented by the applicable terms of the RFP. For purposes of
this Lease, "Fair Market Value" will have the same meaning as "Fair Market Rent."
1.3.14 "Force Mai cure"" means an event beyond human control, including but not limited
to acts of national security, national emergency acts of God, war, let or threats of
terrorism, Government regulation, strikes (other than strikes of Licensee's
employees), fire or other natural calamity, disorder, civil disobedience, curtailment
of transportation facilities or service, or any occurrence which makes it inadvisable,
illegal, or impossible for Li I I I
i Licensee to perform its obligations under this License,
Force Majeure shall not include events caused, directly or indirectly, by Lessee or'
individuals or entities under Lessee's control.
1.3.15 "Gross Condemnation Award", means the actual amount of the award paid in
connection with or arising from the acquisition or other taking of all or less than all
of the Premises, as the case may be.
1.3.16 "Gross Insurance Proceeds" means the actual amount of insurance proceeds paid
following an insured casualty to the Leasehold Improvements.
8
Attachinew 8 — For Lease Agreeinew
1.3.17 "Gross Revenues" shall mean the entire arnount of all revenues and percentages of
revenues actually collected and received by the Lessee and its Sub -lessees or its
assignees or transferees and derived from the following sales sources, including
without limitation:
a. all revenue from the commercial business and services conducted by Lessee and its
Sub -lessees and/or assignees on or from the Premises;
b. all revenues from sales of food, beverage, wine, beer, merchandise or services from
the Premises;
c. all revenue derived from advertising and sponsorships conducted on the Premises,
including, but not limited to, movies, television commercials, etc,;
d. all amounts received from any catering food operations based at the Premises;
c. all amounts received by Lessee from valet concession sales, parking valet services
or similarly authorized and pennittcd concessions on the Premises where tile
Lessee receives and retains any portion, percentage or fraction of the cost of such
sales or services in any rnanner from the Concessionaire, these sales are subject to
verification by a written concession agreement, and any audit or inspection
requested by the Lessor in accordance with the requirements of Section 18-99
through 18-102 of the City Code, which is decined incorporated by reference as if
fully set forth herein;
f. all amounts received by Lessee fi-orri, sales made or performed by means of
mechanical or other vending devices or machines on the Premises, including
without limitation, payphones, vending machines, and entertainment devices both
for cash and on credit, rendered in or upon the Premises;
g. all revenue received by Lessee in connection with the special events uses of the
Premises, any facility thereon, or any portion thereof for any period of time,
including banquets, parties, and receptions held on or initiated from the Premises;
h. amounts received by Lessee from internet or telephone food/beverage orders
received or filled at the Premises, or procured froin the Premises by house-to-house
or other canvassing, including discount, merchant and online savings incentives
including, without limitation, sources and programs such as Groupon, all deposits
not refunded to Purchasers, and orders taken, although said orders rnay be filled
elsewhere, including proceeds of all video games,
i. 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 unrestricted or are to be used for general operating expenses;
j. all donations and contributions received, the revenues of which are unrestricted or
are to be used for general operating expenses;
k. and all other receipts whatsoever derived fron-i commercial operations conducted
in or from the Premises by the Lessee and its Sub -lessees (if any).
Gross Revenues, whether for cash, credit, credit cards or otherwise, shall be
recognized in the period the service was provided or sale took place. Payments
received in advance are deferred and are recognized as revenue in the period the
service is rendered or sale takes place. Grants shall be recorded as income during
the period designated by the grants or when the Lessee has incurred expenditures
in compliance with the restrictions of the grantor. If a sale is by credit card, no
deduction shall be allowed for any commission associated with such sale.
9
A uachnic lit 8 — Fornt Leasc Agi-eeivent
A "sale" shall be deemed to have been consuniniated 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 (ii) Lessee or Sub-
lessee(s) receives all or any portion of the sales price; or (iii) the applicable goods
or set -vices are delivered to the customer and payment is made to Lessee or Sub-
lessec(s), whichever first occurs, Irrespective of whether payinent is made in
installments, the sale is Cir 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 ally other time.
1.3.18 "Impositions" means all assessments, impositions, levies, and governmental
charges, including, Without limitation, assessments imposed by the City and/or
County, franchise fees, fire -fees, excises, parking surcharges, license and perrilit
fees, levies, charges and taxes,, including ad valorem real estate taxes oil the
Premises and the Leasehold Irriproverricilts, general and special, ordinary and
extraordinary properly levied against the Premises and the Leasehold
linprovemeats, any personal property, and/or the Lessee's Leasehold Estate which
constitute as lien oil the Premises or the Leasehold Improvements,
1.3.19 "Lease" rncails, this Lease as Supplemented by the RFP, any addendums thereto,
and the Lessee's response to the RFP, all of which are hereby incorporated by
reference into this Leaseas additional documents providirtg SUppICI-nental terms and
conditions; provided, however, that in the event of away express conflicts between
this Lease and the other documents referenced in this subsection this Lease shall
govern,
1.3. f1 "Lease Date" means the (late that the Lease is fully executed and legally binding
upon the Parties after approval by the City ofMiami Commission. The Lease Date
shall also be the (late on which Rent commences to become due and payable as
ref'crenced in Articic W.
1.3.21 "Leasehold Estate" means all of Lessee's right all(] interest as Lessee in, to, and
under this Lease, the Premises, and the Leasehold Improvements, ifapplicah1c.
1.3.22 "Leasehold Improvements" means an), initial furnishings or equipillent
constituting fixtures to be installed on the Premises, and all other items and
itriproverrients constituting fixtures to be installed or constructed thereafter, from
time to time during the Lease I , errn that are hereafter located upon the Premises.
1.3,.23 "Leasehold Mortgaae" means a mortgage, deed cif trust, or tiny security interest
given in connection therewith, which together constitute an encumbrance or lien
upon the Lessee's Leasehold Estate or any part of it, or any related personal
property, and Lessee's interest in the Leasehold Improvements as security for any
loan. The I.,easchold Mortgage may never lien, pledge, hypothecate, or otherwise
encumber the fee simple interest ofthe Lessor.
1.3.24 "Lease Term" means the period of tinge fixed in Section 3. 1 ; however, at no time shall
7
said lease terill extend beyond the total duration (A'five (5) years.
H
Attachment 8 -- Form Lease Agreeinew
1.3.25 "Lease Year" means twelve (12) full consecutive months. The first Lease Year shall
gin on the Lease Date. If the Lease 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 on the anniversary date of the first Lease Year; however, at
no time shall said lease tcri-n extend beyond the total duration of five (5) years.
1.3.26 "Premises" means the space more particularly described in Section 2.1 herein and
Exhibit A attached herewith and incorporated herein by reference and having an
address of 301 Biscayne Boulevard, Miami, Florida.
1.3.27 "Proposal" means the document received by Lessor from Lessee in response to the
RFP.
1.3.28 "Rent" means Base Rent, Ticket Surcharge and any other rents, costs and expenses
denominated as Additional Rent.
1.3.29 "RFP- means the document entitled Request for Proposals
issued by the City on 20__, and any addendurns thereto.
1.3.30 "Sublease" means any lease (excluding this Lease), sublease, license, concession
or other agreement by which Lessee or any person or other entity claiming Linder
Lessee (including, without limitation, a SLlb-lessee or sub -licensee) demises, leases,
subleases, licenses or sublicenses to or permits the use or occupancy by another
person or entity of any part of the Premises and Leasehold Improvements.
1.3.31 "Sub -lessee" means any person, firm, corporation or other legal entity using or
Occupying or entitled to use or OCCUPY any part of the Premises or the Leasehold
Improvements under a Sublease.
1.3.32 "Ticket Surcharge- shall mean the Ticket Surcharge due and payable by Lessee
on a monthly basis based on the price of the tickets sold, per customer, and shall
have the SUM ascribed to it in Section 4.1.4.
1.4 Priority of Documents
The Tour Boat Services Request for Proposals # _ ("RFP") shall be incorporated
hereto by reference. Following the issuance of the RFP, Lessee submitted a Proposal ("Proposal"),
which was accepted by the City. The above -referenced documents shall be interpreted to avoid
conflicts, where possible. In the event of an express conflict between the above -referenced
docuinents and the terms of this Lease, the following order of priority shall govern:
1.4.1 The provisions of the Mooring and Dockage Agreement and Mal -ilia Facilities
Rules and Regulations shall govern over conflicting provisions in the Lease-,
1.4.2 This executed Lease and its exhibits shall govern over the RFP and the Proposal;
1.4.3 The RFP shall govern over the Proposal,
ARTICLE 11
LEASE OF PREMISES
Attachment 8 — F-orm Lease Agreeinent
2.1 Lease of Premises
The Lessor does hereby lease, let and demise to the Lessee, and the Lessee hereby leases
from the Lessor the Premises, subject to the following terms and conditions, to have and to hold
the said lands, tenements and hereditaments, with all of the rights, privileges and appurtenances,
thereunto belonging or pertaining unto Lessee for the Lease Tenn herein specified, unless this
Lease shall be sooner terminated in a manner hereinafter provided. The Premises is described
more particularly in Exhibit A attached hereto and incorporated herein by reference.
Lessee shall have all rights, privileges, easements and appurtenances, if any, benefiting the
Premises in, over and upon adjoining and adjacent public and private land, highways, roads and
streets reasonably required for ingress or egress to or from the Premises by Lessee, its agents,
servants, employees, contractors, customers and invitees and all others related to Lessee's use and
occupancy of the Premises. Notwithstanding any language in this Lease to the contrary, Lessor is
the fee sin-ipte owner of the Premises, and this Lease shall in no way convey any title or other rights
to the Premises to Lessee unless otherwise specified herein; Lessee may not mortgage, pledge,
transfer, hypothecate, or otherwise encumber Lessor's fee simple ownership interest in the Premises
iri any way, or in any way pledge any rights held by the fee simple owner.
2.2 Purpose of Use and Occupancy
The Lessee will use and occupy the Premises, subject to compliance with all applicable
laws, rules,, regulations, permits, licenses, consents, and similar approvals, including the use
requirements and other conditions imposed by the RFP for the docking, maintaining, and operation
of a boat(s) for the purliose of providing sightseeing and other maritime tour opportunities in and
around the navigable waterways of the City of Miami and Miami -Dade County. Lessee is
permitted to improve, renovate, and/or repair the Premises so long as said improvements are
consistent with Lessee's proposal and Lessee has received prior written approval fi-orn the City in
accordance with the RFP instructions and/or the instructions contained herein. The Lessee may
require approval froin Bayside pursuant to location of proposed use and Occupancy of the
Premises. Lessee shall not use the Premises for any other purpose or use of any kind. Reasonably
related special events may be held on the Premises with the City's prior written consent-., the request
for such special event must be provided a irnnnnUln of thirty (30) days prior to the date of the
event.
Except as otherwise set forth in this Lease, the Lessee will operate the Premises a minimum
of hours per week, except in cases of Force Majeure or any reasonable period of remodeling,
repair.• or reconstruction of the Premises, which remodeling, repair or reconstruction may not,
without the City's prior written consent, exceed a continuous period of thirty (30) clays in any
calendar year, or more than a cumulative total period of forty five (45) days in any calendar year.
2.3 Suitability of Premises
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 Premises, or with respect
to the suitability or fitness of the Premises, for the conduct of Lessee's operations or for any other
purpose, except as set forth in this Lease or in the RFP. The execution of this Lease by Lessee
12
Attachment 8 — Form Lease AgrecinCHt
shall establish that the Lessee accepts the condition of the Premises "AS IS," subject to the
representations set forth in Section 2.4 herein, the RFP, or elsewhere in this Lease.
2.4 Limited Representations by Lessor
Lessor makes the following representations, covenants and warranties which shall survive
the execution of this Lease and the taking of possession of the Premises by the Lessee:
a) That Lessor has taken all requisite actions to make this Lease binding upon Lessor, and
Lessor has marketable, fee simple title to the Premises, and is the sole owner of and has good
right, title and authority to convey and transfer all rights and benefits which are the subject
matter of this Lease, free and clear of all known liens and encumbrances. Absent emergency
action, or other Municipal florric Rule Action required by the public health, safety and general
welfare, Lessor covenants with Lessee that it will not, during the Lease Term and any option
period hereof, conferred and validly exercised, knowingly permit the imposition upon the
Premises any liens, encumbrances, mortgages, casements or any other matters affecting title
which would preclude or otherwise materially affect Lessee's quiet enjoyment of tile Premises.
The obligation of the Lessor set forth in the preceding sentence is not intended to limit the
ability of the Lessor, acting in its governmental capacity, to exercise its police powers with
respect to the Premises and any activities within the Premises.
b) That no party, other than Lessee, shall oil the Lease Date be in or have any right to possession
of the Premises.
c) That the ten -ns of this Lease, including, Without limitation, the intended use of the Premises by
Lessee, are not in violation of or expressly inconsistent with any operative agreement or
covenant known to Lessor of any kind whatsoever which relates to the Premises.
2.5 Satisfaction of Liens
Lessor shall satisfy or cat -ice] of record all existing liens and encumbrances affecting the
Premises as of the Lease Date except as otherwise set for-th in this Lease.
ARTICLE III
TERM
3.1 Terni of Lease
The initial Lease Term is for a period of five (5) years, commencing on the Lease Date.
The Lease Term shall be extended to include any fraction of a calendar month between the Lease
Date and the first day of the first full calendar month thereof, however, at no time shall said lease
term extend beyond the total duration of five (5) years.
3.2 Option to Renew
No options to renew shall be available.
13
All.achinent 8 --- Forni. Lease Agreenicill
ARTICLE IV
RENT, SECURITY DEPOSIT, & FINANCIAL RECORDS
4.1 Base Rent and 'Ticket Surcharge
Commencing on the Lease Date and on the first (I") day of every calendar month thereafter
during the Lease Tenn, Lessee hereby agrees to pay to the Lessor the Base Rent. If the first
payment of Base Rent does not fall on the first day of the month, the first payment shall be prorated
based on the number of days in such month.
In addition to Base Rent, the Lessee hereby agrees to pay the 1..,essor Ticket Surcharge on
an annual basis as set forth in this Article. In the event that Lessee fails to provide payment of
Rent in the time required by the terms of this section, shall be subject to a Late Fee in addition to
payment then due, as more particularly described in Section 16.4 below.
4.1.1 Base Rent
The Base Rent shall be $33.00 per foot per month. The Base Rent shall be adjusted
and increased annually by the method described in Section 4.1.2 below upon the
cornmencernent of the second Lease Year.
4.1.2 Base Rent Increase
Lessee agrees that the Base Rent shall be increased annually commencing on the
first anniversary of the Effective Date of the Lease and on each anniversary thereafter
during the Term, the per annum Minimum Base Rent amount shall be adjusted to an
amount equal to the product of the Reference Year Minimum Base Rent multiplied by
a fraction, the numerator of which is the Consumer Price Index number as of three (3)
months prior to the beginning of the applicable adjustment date, and the denominator
of which the Consumer Price hidex number as of three (3) months prior to the Effective
Date.
In no event shall any such annual adjustment to the Minimum Base Rent result in
an increase which is less than One Percent (1%), or more than Five Percent (5%), of
the Minimum Base Rent amount immediately prior to the effective date of such
ad Listment.
4.1.3 Sales Tax
The Lessee shall be liable for the prevailing State of Florida Sales, Use or similar
tax imposed on the amount of Rent paid to Lessor Linder this Lease, in the absence of
an exemption or other reduction by the State of Florida. This Sales and Use Tax shall
be payable to the Lessor when Rent is due, and in turn, Lessor will remit the same, less
any authorized handling deductions, if any, to the State.
4.1.4 Ticket Surcharge
From the Lease Date and continuing throughout the term of the Lease, Lessee shall
pay to the City a monthly Ticket Surcharge which is a per customer surcharge based
on the price of tickets sold. The 'Ticket Surcharge shall be based upon the following
schedule:
14
Attachment 8 — Form Lease Agreement
Ticket Price
Surcharge
$1.00-$14.99$.75
..... .......
.. . . $15�00-$29.99
... ......... . . . ..... . .. ........ .................... . . ........ . ....... ... .
$1.00
$30.00 and up
$,2.00
4.1.5 Manner of Paymen.
The Base Rent andTicket Surcharge shall be payable no later than fifteen (15) days
after closing the previous month's financial statements. Lessee shall deliver to the
Lessor a statement setting forth the Gross Revenues, with the number of tickets and
Ticket Surcharge attributable to each tickets sold broken out of the Gross Revenue,
during the applicable Rent Period ("Monthly Rent Staternent"), and Lessee shall pay to
the City the amount of Base Rent and Ticket Surcharge due and payable, to the Lessor,
pursuant to the terms of this Lease. Each Monthly Rent Statement shall be signed and
certified to be complete and correct by an officer of Lessee. Such statement shall show
the monthly Base Rent, Ticket Surchage, and an itemization of any exclusions or
deductions for the current Lease Year, Lessee shall provide the Monthly Rent
Statement with a Monthly Gross Revenue Report in substantially the same form as
attached hereto as Exhibit B and Exhibit C.
Lessee shall pay the Lessor (x) the monthly Base Rent and (y) the morithly'l"'icket
Surcharge and, deliver the cot -responding Monthly Rent Statement and Gross Revenue
Report to the City of Miami, Department of Real Estate and Asset Management at the
address noted below:
City of Mian -ii
Department of Real Estate and Asset Management
Attention: Lease Manager
444 SW 2nd Avenue, 3rd Floor
Miami, Florida 33130
4.1.6 Fair Market Value
As required by applicable laws, the Lessor has detenriined that the Base Rent
constitutes Fair Market Value. The Lessor has made such determination based on an
appraisal of the proposed project as performed by two (2) State -certified general
appraisers hired by the Lessor.
4.2 Security Deposit
Simultaneously upon the execution of this Lease by Lessee, the Lessee shall pay to the
Lessor a security deposit equal to one hundred percent (1(10%) of the annual Base Rent as detailed
in section 4. 1. 1 above (the "Security Deposit"), to be held as security for performance by Lessee
of all obligations imposed under this Lease which Lessee is required to perform during the Lease
Tenn, and any extension thereof, The Security Deposit shall be in the form of cash or its equivalent
which funds may be commingled by Lessor with its other funds. No interest shall be paid on the
Security Deposit. 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
15
Attachinent 8 — F-orin Lease4greeni.ent
this Lease to the extent, if any, that the Security Deposit has not been applied by Lessor as
hereunder provided.
If an Event of Default shall occur 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, at
Lessor's sole discretion, to the damages sustained by Lessor by reason of any such Event of Default
or to indebtedness owing by reason of any failure of Lessee to make ally required monetary
payment under this Lease. No such application shall be construed as all agreement to limit the
arnount of Lessor's claim or as a waiver of any damage or release of any indebtedness, and ally
claims of Lessor under this Lease not recovered in full from the Security Deposit shall remain in
full force and effect. In no way shall the security deposit serve as liquidated damages for any event
of default; rather, Lessor may apply the security deposit an-iOUnt to damages sustained by Lessee's
default and continue to request any additional amount owed.
Further, 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 the amount of the Security
Deposit stated above., Lessee shall make each such requested remittance within thirty (30) 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 thirty (30) day period may be treated by Lessor
as a failure by Lessee to make timely payment of rent and as an Event of Default.
The Security Deposit shall be retained by the Lessor throughout the entire term of this
Lease and, if not utilized by Lessor, will be returned less interest, and less allowable deductions,
credits or setoffs by Lessor, within thirty (30) days following the surrender of the Leased Area at
the termination of this Lease, inclusive of any validly exercised option period, as applicable.
4.3 Lessee's Financial Records
Lessee will establish an operating entity that is unique to the operations of the Lessee in
the Premises, as well as one or more bank accounts through which deposits of Gross Revenues
generated from Such operations will be made. The bank in which such deposits are made shall be
based in the United States or shall have a large local presence. The said deposits of Gross
Revenues will not be comingled with those from any other operations of the Lessee outside ofthe
Premises or any other affiliated organizations. In addition and/or alternatively, Lessee will use an
accounting system that will separately provide for a detailed accounting of Gross Revenues. The
detailed accounting shall not be commingled with the Lessee's other operations-, and, should
comply with federal income tax returns and state sales and use tax returns. Accordingly, Lessee
shall prepare and keep full, complete and proper financial records and source documents in
accordance with generally accepted accounting principles, of the Gross Revenues, whether for
cash, credit or otherwise, of each separate department at any time operated in the Premises,
The financial records and source docurnents to be kept by Lessee shall include, but shall
not be limited to true copies of. (I ) records of inventories and receipts of merchandise; (2) profit
and loss statements; (3) variance reports; (4) arrearage reports; (5) balance sheets; (6) financial
journals and sales sun -nary records; (7) general ledgers; (8) daily dated cash register tapes; (9)
daily dated cash register summary tapes ("z" tapes); (10) pre -numbered sales slips, including those
16
Attachment 8 — Form Lease Agreeinent
for mail or telephone orders; (1 1) daily sales and/or point of sale (POS) reports; (12) financial
statements; (13) bank staternents; (14) records of daily bank deposits from transactions at or from.
the premises; (15) duplicate validated bank deposit slips-, (16) purchase invoices; (17) inventory
and receiving records; (1 8) pricing schedules or other materials showing price markups; (l q)
federal, state, and local income tax returns, (20) state and local sales tax reports; (21 ) settlement
statements of transactions with subtenants, concessionaires, and licensees; and any and all records
that may be examined or required by an independent accountant in performing an audit of Lessee's
Gross Sales or which may be requested by Lessor.
If Lessee subleases the Premises or, provides a license to a third party in accordance with
Article X herein, and Lessee's operations require its sub -lessees (or licensees) to pay a security
deposit and/or advance rent, Lessee shall deposit Such security deposit/advance rent monies into a
separate bank account and shall not commingle these monies with any other bank account used in
its operations as described herein.
Pertinent original sales records shall include, without limitation: (i) sales reports of back
office systems fed from point of sale terminals, (ii) cash register tapes, including tapes from
temporary registers, if any, (Ili) serially pre -numbered sales slips, (iv) the original records of all
mail, internet and telephone orders at and to the Premises, if any, (v) settlement report sheets of
transactions with any person conducting business on the Premises, if any, (vi) original records
indicating that merchandise returned by customers was purchased at the Premises 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, (lx) sales tax
records, and (x) such other sales records, if any, which would normally be examined by an
independent accountant pursuant to accepted auditing standards in performing all audit of Lessee's
sales.
4.4 Reports by Lessee
Within thirty (30) days following the last day of each month of each Lease Year, Lessee
shall furnish to Lessor a monthly statement of Gross Revenues generated in the preceding calendar
inonth ("Monthly Gross Revenue Report"). The Monthly Report shall be signed and certified to
be complete and correct by an officer of Lessee. Lessee shall use a Monthly Gross Revenue
Report, a sample of which is attached herewith and incorporated herein as Exhibit D to itemize
any and all reportable Gross Revenues, or any similar forni acceptable to Lessor.
Within sixty (60) clays after the end of each Lease Year, Lessee shall also furnish to Lessor
the Annual Rent Statement and Annual Gross Revenue Report specified in section X4.1.5 above,
showing in reasonable detail the amount of such Gross Revenues made by Lessee from the
Premises during the preceding Lease Year. Any intentional misstatement of Gross Revenues will
constitute a default under this Lease.
4.5 Right to Examine Financial Records
Lessor shall have the right to examine, make extracts from, and copy all of Lessee's
financial records, source documents, bank statements, state sales and use tax returns/reports, and
federal income tax returns filed by Lessee, and pertaining to the financial operations on the subject
Premises. Lessee shall make all such documents and records available for a period of seven (7)
17
Altachinent 8 — Form Lease l4gyrcenient
years after the expiration of each Lease Year. Lessee shall furnish such information at the Premises
or Lessee's iriain accounting office upon not less than thirty (30) days prior written notice frorn
Lessor,
4.6 Audit
At its option, Lessor may at any tirne, upon not less than thirty (30) days, prior written
notice to Lessee, arrange for an auditor selected by Lessor to conduct a complete audit (including
a physical inventory) of the entire records and operations of Lessee included in Gross Revenues
from the Premises during the period covered by any staternent issued by Lessee.Lessee shall
make available to the Lessor's auditor at the Premises or Lessee's main accounting office on the
day set forth in Lessor's notice, requiring such audit, all of the financial records, Source documents,
variance reports, general ledgers, management reports, arrearage reports, check registers, and any
other materials which Such auditor deems necessary or desirable for the purpose of performing
such audit.
Lessee shall promptly pity to Lessor the amount of any deficiency in Base Rent and/or
Ticket Surcharge payments disclosed by arty such audit. IF Such audit shall disclose that Lessee's
statement of Gross Revenues is at variance to the extent of five percent (5%) or more, Lessor may
bill to Lessee the cost of such audit, which Lessee shall pay within thirty (30) days after Lessee's
receipt of Lessor's invoice. If Such audit shall disclose an overpayment, Lessor shall credit such
overpayment toward the next payment of Rent due. 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, and Lessee shall fail to be available or shalt
otherwise fail to comply with the requirements fOr Such audit, Lessee shall pay all costs and
expenses associated with the canceled audit. Lessor and Lessee agree to attempt to resolve any
audit dispute not resolved in sixty (60) days following delivery of the final audit by submitting the
results of the disputed audit to a mutually acceptable third -party accounting firiri for its opinion,
the fees of which shall be paid by Lessee.
In addition to Lessor's available remedies, in the event an audit or other reliable
information reveals that Lessee's records are unavailable due to Lessee's failure to reasonably
maintain such records, Lessor shall be entitled to collect as Additional Rent from Lessee an amount
equal to the lesser of (i) fifty percent (50%) of the Base Rent (the "Audit Unavailability Penalty")
paid by Lessee in the preceding Lease Year prorated for the period in question (i.e., if the period
in question is equal to six (6) months, then the Additional Rent provided for herein will be equal
to 50% (1/2 of the year) of the Audit Unavailability Penalty) or (11) the difference between (x)
110% of the Base Rent that Lessee has calculated as payable in the year in question and (y) the
Base Rent paid in the preceding Lease Year. 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
Base Rent and Ticket Surcharge) be in any manner reduced or diminished by the exercise of such
remedy.
Lessor shall additionally have such audit rights as are set forth by Section IS- 102, City
Code, which is deemed as being incorporated by reference as if fully set forth herein. In addition
Lessor shall have the ability but not the duty to conduct inspections, as are set forth in Section 18-
18
Attachment 8 -- Forin Lease Agree nient
101, City Code, deemed as being incorporated by reference as if fully set forth herein, from time
to time, of the Premises as provided.
4.7 Lien for Rent & Other Charges
The whole amount of the Rent and each and every installment, and the amount of all taxes,
assessments, water rates, insurance prerniUn-1s and other charges and linpositions not paid by the
Lessee under the provisions of this Lease, and all costs, attorney's fees and other expenses which
inay 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
deenied to constitute a valid lien upon the Leaschold Improvements, and upon the Lessee's
leasehold estate.
ARTICLE V
LEASEHOLD IMPROVEMENTs
5.1 Lessee's Obligation to Provide and Fund Leasehold Improvements
Should Lessee construct and install improvements to the Premises or renovate and/or repair
existing irriprovements at the Premises ("Leasehold Inaprovernents"), Lessee shall, with no less
than thirty (30) days prior written notice and at Lessee's sole cost and expense, submit to Lessor
for Lessor's approval (not to be unreasonably withheld, delayed, or conditioned), its Plans (defined
below) for the commencement and completion of the construction of the Leasehold Improvements.
The plans shall include any work or e(JUipi-nent to be done or installed by Lessee affecting any
structural, mechanical or electrical part of the Promises ("Plans"). Within thirty (30) days of
receipt of the Plans, the Lessor shall give Lessee written notice of either Lessors approval or
disapproval setting forth the reasons therefore.
In the event that Lessor disapproves the Plans, Lessee shall within ten (10) business days
of receipt of the notice modify the Plans in accordance with the reasons set forth in Lessor's
disapproval notice, if applicable, The inodifiled Plans shall be resubmitted to Lessor for Lessor's
final review and approval.
5.2 Possession Date
Lessor shal I deliver possession of the portion of the Premises offered by Lessee in its RFP
proposal to effectuate its tour boat operations and Lessee shall take possession thereof on the Lease
Date, as defined in Section 1.3.20 above ("Phase I Possession"). Delivery of possession shall be
subject to Force Majeure delays,
By the Lease Date, the Lessee shall have provided the City Manager or his/her designee
evidence, as may be reasonably satisfactory to the Lessor, that Lessee has sufficient funding or
binding funding commitments to complete the Lcasehold tinprovements to be constructed at the
subject Premises.
5.3 Payment and Performance Bond
19
Atlachnieni 8 — h'orni Lease Agreeinent
Within ten (10) days after the Lessor approves the plans in writing and Lessee obtains
building pen -nits consistent with the Plans, but in any event prior to the commencement of any
construction, the Lessee shall, at Lessee's sole cost and expense, furnish the Lessor with a Payment
and Performance Bond in substantially the form prescribed by Section 255.05, Florida Statutes.
Plans, design and construction documents will comply with all applicable contract, legal, and
regulatory requirements illClUding, Without limitation, the Florida Building Code.
The Payment and Perlori-nance Bond shall be issued by a bonding con-tpany which shall be
approved by Lessor, in the reasonable exercise of its discretion, in an amount equal to one hundred
percent (100%) of the costs to construct the Leasehold Improvements described in Exhibit E
narriing, the Lessor as the owner/obligee, and the Lessee or Lessee'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:
1. Promptly make payrrient to all claimants, as defined in Section 255.05 Florida
Statutes, 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;
11'. Pay Lessor all losses, damages, expenses, costs, and attorney's fees, including
appellate proceedings, that Lessor sustains because of a default by Lessee under
this Lease pursuant to claims made under Section 255,05, Florida Statutes; and
iii. Perforni 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 as the construction,
and the acquisition and installation of the Leasehold Improvements are completed as evidenced by
issuance of a Cet-tificate of Occupancy and reasonably 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 Performance Bond have been satisfactorily concluded, and by
the issuance of a Certificate of Occupancy. The forth of the Payment and Performance Bond, a
sample of which is attached herewith by reference as Exhibit F, shall be approved by the City
Manager or the Risk Manager as his designee and by the City Attorney as to legal form, which
approval shall not be unreasonably withheld.
5.4 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, to the reasonable satisfaction of the Lessor in accordance to Exhibit G attached hereto,
Copies of such certificates shall be furnished to the City of Miami Risk Manager, 444 SW 2`1
Avenue 9t" Floor, Miami, FL 33130. The City will be named as an additional insured on Such
policies.
5.5 Conveyance of Improvements
20
,"Ittoehnient For Lea.se Agrcenient
'rhe Lessee hereby, in consideration of the granting of this [.,ease shall Lipon termination or
expiration of this Lease, convey unto L,cssor, free and clear of all liens, title to all Leasehold
hriprovernents ofa permanent character, including but not limited to refrigerators, sato es, freezers,
hood systems, grills, dishwashers, sinks, kitchen work stations and light fixtures,
In addition to the Lea.schold Improvements to be conveyed to Lessor as refcreneed above,
Lessee shall fbillicr grant to, the Lessor the right to purchase froin the Lessee, aII of Lessee's
personal property added tea or installed at the Premises by the Lessee during the Lease 'Term,
including all furnishings, and equipi-rient at actual cost less depreciation as determined by an
appraisal, provided that the I-essor by written notice to the Lessee at least lorty five (45) days prior
to the expiration or termination of the Lease'-['cri-n.
5.6 Premises to Remain Free of Liens
The Lessee shall make, Or cause to be made, pronipt payment of all money due and legally
owing to all persons doing any work, including subcontractors, Or providing supplies and
e(ILlipment in connection with the COIIARICti011, reconstruction or operation of the Premises. The
Lessee shall have no power or right to and shall not in any way encwnber the Lessor's fee simple
interest in the Premises. If any liens or encumbrances shall at any tirne be filed against the
Premises, the Lessee shall, Upon acquiring knowledge o IsLich lien or encumbrance, promptly take
and diligently PLH-Suc a CWSC of action to have the same discharged or to contest in good faith the
anIOUnt, or validity, thereof and 11' LUISUCCeSSfill In Such Contest, to have the same discharged, If.
Lessee fails to discharge the hen, the Lessor, in addition to any other right or rcriiedy that it may
have, may take Such action as May be reasonably necessary to, protect its interest, and the Lessee
shall be responsible far any and all reasonable costs incurred by the Lessor in COITRCCti011 With such
action, illClUdiflg all reasonable le -al fees, costs and expenses.
5.7 Lessor Approval
All Plans furnished under this Lease are expressly subject to Lcssor,c,, written approval,
which the City Manager is hereby authorized to act on behalf of for purposes Of Such approval,
and which approval lie or she may not unreasonably ably withhold or delay.
No approval by the City Manager Of any Plans ftirnished under this Lease pursuant to this
section shall relieve Lessee of any obligation it niay 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 peri -nit or approvd require(]. by applicable laws. Lessee
acknowledges that any approval 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 applicable laws.
AwrICLE V1
C"ONDUCT OF BUSINESS BY LESSEE
6.1 Operation of Lessee's Business
At all tinics during the Lease Term, Lessee shall manage the Premises with due diligence
and efficiency, in Lessee's sole discretion, Subject to the limitations set forth in this Lease, and in
21
Attachnient 8 --- Porm Lease AgreemenI
a manner prudent and in accord with the current first class and best business Practices and
tcchni(lUeS within the locale for Lessee's business in similar businesses located in the City of
Miami, Lessee shall offer services and/or carry at all times in the Premises a stock of merchandise
Of Such quantity, character and quality as shall be in accord with comparable businesses within the
locale of the Premises.
6.2 Signs
Lessee will not place or permit to be placed or maintained oil any exterior door, wall or
Nvindow ofthe Premises, (,,)r within the interior of the Premises, any signage or advertising matter
of any kind, without first obtaining Lessor's written approval and consent, which rilay not be
unreasonably withheld. Lessee shall erect an exterior sign of type, composition and design in
conforniance with the City ofMiarni Zoning Code, the Sigll Regulations ofMianii-Dade County,
and Bayside Marketplace's sign regulations, as applicable. Lessee further agrees that such signs,
awning, canopy, decoration, lettering, advertising matter or other thing as, may be approved shall
be rriaintained in good condition and repair at all, times.
ARTICLE VII
MAINTENANCE, REPAIR AND ALTERATION OF PREMISES
7.1 Lessee's Maintenance Obligations
Lessee, at its sole cost and expense, agrees to provide the necessarmanagement and labor
y
to continuously maintain the Leaschold Improvements in the Premises, including all operating
equipment, utility set -vices, and connections xvithin the Premises. 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 Premises, and the Leasehold
Improvements remain in good, safe, code compliant and sanitary condition and repair throughout
the Lease Term. Lessee shall be responsible for periodic painting of the interior and exterior of
the Premises arid decorating the interior oil' the PrLmises, maintaining its equipment, fixtures,
lbri-iishings, and other personal property in good condition and repair, All maintenance shall be at
the Lessee's sole cost and expense and will be sub ject to general inspection by the Lessor to insure
a continuing duality of maintenance and appearance and physical condition of the Premises
cornmens (irate with maintenance, liecilth, all([ safety standards established by the Lessor and
Applicable Law.
7.2 Lessee's Repair Obligation
Subject to the provisions of this Lease regarding Casualty damage and condemnation and
except as otherwise provided for in this Lease, Lessee, at Lessee's sole cost and expense, at all
times, during the Lease Term, shall make all repairs to all Leasehold Improvements, including,,
without limitation, all heating, ventilating and air-conditioning equipment and any other repair opr
replacCIT)Cllt to the Leasehold Improvements. Lessee will be responsible for maintenance and
repairs in the Leased Area throughout the term of this Lease. For avoidance of doubt, the Lessee's
repair obligations shall not include (i) any initial irlstallati(:)n or provision of City Improvements or
(ii) any repair, maintenance or replacement that includes areas Outside of the Premises, Or (ill) any
22
1111achtnent 8 -- Form Lease.11gi-eernent
repair, maintenance or replacement, which is the responsibility cat` Lessor, as provided in Section
7.3 below.
'7.3 Changes/Altei-ations
Lessee shall not install or cause to be installed any exterior signs, affixed exterior
machinery, shades, awnings in and to the Premises or any pail tll(,I-eOf VVithOUt the prior written
consent Of the Lessor, which consent the City Manager is hereby authorized to give, and may not
unreasonably withhold or delay.
I
No approval by the City Manager o,f any changes or alterations shall relieve Lessee oi'any
obligation it may have at law to file the required documents with any department cif 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 Manager pursuant to this section shall not constitute an opinion or agreement by, the City that
the changes or alterations are in compliance with any applicable laws,
ARTICLE V111
INSURANCE AND INDEMNITY
8.1 Insurance on the Premises
In connection herewith, Lessee shall obtain and maintain or caUSC to be obtained and
maintained in full force and effeCt throughout the period of this Lease, the insurance coverage set
f6ith in Exhibit FI. If required by state, county, or city laws frorn time to tirne for work conducted
011 Or use of municipal properties, Lessee shall obtain and maintain or cause to the obtained and
maintained throughout 01' (Wring the Lease Term, as applicable, such types and W11OUnts, of
Imyrnent, performance, maintenance, or restoration bond(s) as shall be require(] to be reviewed arid
approved by the City's Risk Management Department in coordination with Lessee's Risk
Manager,
The Lessor reserves the right to reasonably amend the herein insurance requirements as
may be applicable in connection with the scope contemplated under this agreement. Lessor further
reserves the right to request copies Of all applicable policies in connection with this agreement,
8.2 Dclivej-y of Insui-ance Policies
All liability, statutory workers compensation and property policies, it'applicable, shall be
retained by the Lessee. Except as otherwise specifically provided, all other policies of insurance
required to be furnished shall be held by and be payable jointly to the Lessor and the Lessee with
the proceeds to 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 by this Lease shall provide that they shall not be
amended or canceled on less than thirty (30) days prior written notice to the Lessor and all insured
beneficiaries, of the policies shall contain waiver Of SLIbrogation rights endorsements, as require(]
below, The Lessor shall have no obligation to pay premiums, n-iake contributions to the Insuring
23
.411aehment 8 --- Form Lease Agreenwiv
company or any other person, orto satisfy any deductible. On or before the [..,,ease Date and not
less than thirty (30) (lays prior to the expiration (late of any policy required to be carried pursuatit
to this section, the Lessee shall deliver to the Lessor the; applicable respective policies, or insurance:
company certificates evidencing all policies of insurance and renewals required to be furnished.
Receipt of any documentation Of iJISUrance by the Lessor or by any of its representatives that
indicates less coverage than required does not constitute a waiver of the Lessee's obligation to
fulfill the insurance requirements herein. The Lessor shall appear listed as an additional insured
on all applicable liability policies, and loss payee on any property policy, The insurance shall be
primary and non-contributory, and should irlClUdc all corresponding endorsements in connection
with the agreement, and as required by the City,
8.3 Adjustment of Loss
Any Gross Insurance Proceeds recovered on account of any damage or destruction by any
casualty ,;hall be made available for the paymcrit of the cost of the reconstruction, replacement or
repairs. All of the Gross Insurance Proceeds plus, the amount of any deductible applicable to said
damage or destruction shall be deposited by the insurance company or by the Lessee (in the case
of the deductible) with an escrow agent reasonably acceptable to the City Manager, with
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 architect or engineer SL1L�pCrViSit1" the work that the disbursements then
4--
requested, plus all previous disbursements made from such Gross insurance Proceeds,, PIUS the
amount ofany deductible, do not exceed the cost of the work already completed and paid to]-, and
that the balance in the escrow fund is sufficient to pay for the reasonably estimated cost Of
completing the required work. The escrow holder shall be any bank ITILItUally aL,,,rccable to Lessor
and Lessee. If the amount of the Gross insurance Proceeds is less than the cost ol"the required
work, then Lessee shall pay, the excess cost; and if the amount of the Gross Insurance Proceeds is
greater than the cost of the required work, then the excess shall be paid to and belong to the Lessee.
8.4 Indemnification of Lessor
Lessee shall indemnify, defend and hold Lessor harmless firorn and against any and all
claims actions, damages, liability and expense in connection vvith personal injury and/or damage
to or destruction of, Premises arising from or out, of any occurrence in, upon or at the Premises, or
arising I'T'0111 the Occupancy or use by Lessee of the Premises or any part thereof, or occasioned
wholly or in part by any act or ornission of Lessee, its agents, contractors, employees, servants,
customers, invitees, licensees, sub -lessees or concessionaires, excluding any claims arising from
the negligence or willful misconduct of the Lessor (or any other person acting on behalf of the
l-essor as its contractor, employees, agent or representative). Lessee shall Further indemnify
Lessor for any penalties, fines, costs, expenses, Suits, liabilities, claims, or damages resulting froin
Lessee's failure to perforin its obligations in this Lease and/or fin- Lessee's failure to comply with,
applicable laws. In case Lessor shall be made a party to any litigation commenced by or against
Lessee and covered by this indemnity provision, then Lessee shall protect and hold Lessor
harmless and pay all of Lessor's costs and attorney's Pecs incurred by Lessor in connection with
SUCh litigation, and any appeals thereof, Lessee shall also pay all of Lessor's third party costs,
expenses and reasonable attorneys' Ices ces that may be incurred or paid by Lessor in ent-breing the
24
.zltlachnient 8 -- F( r)n Lease,,1greenzent
covenants and, agreements in this Lease jr1CILlSive of administrative, litigation and appellate
proceedings. F"Urther, Lessee shall indemnify, defend and hold Lessor harmless frorn and against
any and all claims actions, damages, liability and expense arising frorn Or caused by the presence,
in or abOLlt the Premises, of any Hazardous Materials placed on or about the Premises by Lessee,
or its agents, employees or assignees, or at Lessee's direction, or by Lessee's filllUrc to comply
with all applicable Environmental Laws.
8.5 Waiver of Subrogation
Lessee waives all rights to recover against the Lessor for any damages arising from any
CaLISC, Covered by ally inStIrelrice required' to be carried by Lessee, or any insurance actually carried
by Lessee. The Lessee shall cause its inSUNI'(S) to issue appropriate waiver of subrogation rights
endorsements to all policies of insurance carried in connection with the Premises. or any part
thereof
8.6 Release of Lessor
The Lessee and its assigrices, for and in consideration o,f the leasing
and the dernise of the
premises to the Lessee, hereby release, rerinse and discharge the Lessor, its officers and employees,
of and from all clairris, demands, and actions, whether in law or in equity, which 11 -lay be filed or
asserted by the Lessee or its assignees for or oil account of improvements made and furniture,
fixtures and equipment installed in the Premises, nand 11-orn any and all costs and expenses of Lessee
or its assignecs, in connection with this Lease, including, but ]lot limited to those costs associated
with the development of the Premises and acqUiSiti011 of the Leaschold Improvements (the
"Clairn"). It is the intent of the Parties that this provision shall control over any other provision ill
this Lease and that notwithstanding any linlited representations provided by Lessor Under Section
2.4 of this Lease, neither the Lessee, nor its assignees shall seek to recover frorn the Lessor
compensation for, or reimbursement of, any costs, losses, fees or expenses irICUrred by the Lessee
or its assignees. The. terms of this provision shall expressly be unade as part of any future assigillriclit
or mortgage ol"the Leaseliold Interest.
AR'r1CLE IX
SERVICES AND UTILITIES
9.1 Lessee to Provide and Pay for Utilities
The Lessee shall pay, or CaLISC to be paid, all proper charges for gas, electricity, light, heat,
Wam- and Power, lor telephone, PrOtCCtiVe MAC] other C01111111,11lication services, and for all other
public or private utility services, which shall be Used, rendered Or SUPpIiCCI upon or in connection
with. the Premises and any Leasehold Improvements, if any, or any part of it, at ally time during
the Lease Tenn, and the Lessee shall comply with all contracts relating to any SUCII 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 Premises and the Leasellold
Improvements. The Lessee shall, at its sole expense, procure any and all necessary permits,
licenses or other authorization rCCILlired for the lawfill and proper installation and maintenance
25
Attachment (S) — For t'n Lease Agreeinent
upon the Premises of wires, pipes, conduits, tubes and other eqLlipnICnt and appliances for use in
Supplying any SLICII utilities, SCI -Vices or substitutes to the premises.
9.2 Lessor Not Liable for Failure of Utilities
Thc Lessor shall not be liable for any f1lilLII-C ofwater Supply, sewer, gas or electric current,
or for any ilIjUry or darriage to any person or to the Premises caused by or resulting frorn water,
Baas or electricity which niay leak Or flow from the water or gas mains on to any part of the Premises
or the Leasehold Improv'Lirients. The Lessor shall not be required to rriake any alteration to alry
service Or utility SySterll Of tile Premises on behalf of Lessee. Lessor shall not be liable fear
temporary failure of'services, and any such temporary failure shall not be dcerned to constitute
actual or constructive eviction, nor entitle I aessee to any abatement or diminution in rent payable
Under this, Lease.
Lessor shall not triake or allow to he made after the Lease Date any changes ill any utility
SCI-ViCe t0, through, Linder or above the Premises that Would result in as materially disruptive effect
on the use or operation. of the Premises by the Les See and its CUStOl'uCrS, including but ]lot limited
to fiber optics, telephone, electricity, water, storm and sanitary sewer, gas, heat, ventilation and air
conditioning, With0Ut the prior written consent of' Lessee, which shall not be unreasonably
Withheld, cond 1 tio tied or Berried; further, provided, that the written consent of the Lessee shall not
be required for i-i-linor, routine and customary, maintenance, repair, improvement and upgrades
made by the utility provider to the utilities it furrnslics,
A RTI CL E X
SUBLEASES, ASSIGNMINT S AND,rRANSFERS
10.1 Subleases, Assignments and Transfers
Lessee shall not, at any time during the Lease Ter -in, enter into (i) any Sublease, license,
concession, eascirient, or perrnit agreement with respect to the Premises or (ii) sublease, assign or
transfir this Lease to any third party or parties, which has the effect of granting exclusive
possession to the Premises and assigning the rent and other obligations set forth in this Lease to
carry third party orparties (collectively "I "rans6er"), without first procuring the prior written c ) s t
( li ell
of Lessor's City Manager (except as otherwise permitted Under this Article X). The provisloris, of
this Article constitute the sole incans by which Lessee may request Lessor's consent to a Transfer,
The consent of'Lessor shall not be Unreasonably withheld Or delayed,
Ili recognition of the fact that this Lease was awarded to Lessee following a competitive
procurement relying on Lessee's unique attributes, any'l-ransfer of this I -ease to any third party or.
parties (except as otherwise permitted under this Article X) shall require the prior written approval
of the City Manager, which may grant, deny, refuse or consent to such Transfer based on
reasonable corrimci-cial I 'actors includirm, the credit worthiness, solvency, reputation, ability and
experience Of Such proposed transferee, If' approved, any such transferee shall he required to sign
a wvritten agreement assuming all terms and conditions ofthe Lease, without exception in as F()rll,l
satisfactory to the Lessor. Any such attempted Transfer of the Lease, without the Lessor's prior
written consent, shall be void and Of no force or effect and shall not con6er any interest or estate
in the PUI-POI-ted Transfer and will additionally be a del'aUlt by Lessee ofthis Lease.
26
AtIm4unent 8 — Torin Lease A-reemew
11
It is agreed that all terms and conditions ofthis Lease shall extend to and be binding on all
transferees, assignees or Sub -lessees as may be approved by Lessor and shall be fbr a period of"
time equal to or less than the Lease Terril. Lessor reserves the right to directly terminate the rights
and interests of" any transferee or Sub -lessee under any Transfer for any cause for which I..,essee's
Leasehold Interest may be terminated. Lessee shall reimburse to I-essor, as Additional Rent, all
costs and expenses, Including third party attorneys' fees, which Lessor reasonably illCUrs by reason
of or ill connection with as Transfer, and all negotiations and actions with respect thereto, such
Additional Rent to be due and payable within flurly (3(I) days of receipt of as statement of such
costs and expenses from Lessor.
10.2 Procedure for Transfer
Subject to the provisions of Scc!t]011 10, 1, ShOUld Lessee desire to 1'ransfer the Lease,
Lessee shall, in each instance, give %vritlen notice, of its intention to do so to Lessor's City Manager
at least thirty (30) days prior to the effective date of any such proposed Transfer, specifying in,
Such notice the nature Of SUCII PrOpOsed Transfer and the proposed date thereof and specifically
identi [yulg the PrOPOSed Sub -lessee, Assignee or trallSt61-M. SUCII notice shall be accompanied by
a copy of the proposed Transfer agreement and any other dOCUITIClItS or financial information,
Lessor may reasonably require in order to determine the suitability of the Sub -lessee, Assignee or
transferee, If requested by Lessor, Lessee sharp provide to I-essor copies of all Transfer documents
and amendments thereto. Lcssor shall either (i) withhold consent to the'] .'ransfer, together with a
detailed explanation f0r Such denial, or (11) Consent to such Transfer UP011 the terms and subject to
the conditions provided for ill this Article, by mailing written notice to Lessee of its intent to do
so. Lessee acknowledges and agrees that the imposition of the conditions provided herein
requir-ing Lessor's consent is reasonable.
10.3 Additional Consideration Payable to 1,essor
If Lessor gives its consent to any 'Fransfer, Lessor shall be entitled to proceeds from ally
such Transfer, with the Lessor's participation al"1101,111ting to tell percent (10%) ofgross proceeds
from the sale ifthe Lease is assigned ow othcrwise transferred or sold within Lease Years one (I )
through three (3); and seven percent (7%) if transferred within Lease Year fOUr (4) and five (5)
("Transfer Fee") Lessee shall, in consideration of any Transfer, include in Lessee's Gross
Revenues the 811101.111t OfSl_lb-Lessee's, Assignees orTrallsferee's Gross Revenues which shall be
listed separately oil Lessee's Annual Report, Sub-Lessec's, Assignee's or "Transferee's records
shall be kept in accordance with Article IV. Additionally, Lessor reserves the right to examine
Sub -Lessee's, Assignee's orTranst"crec's booksand audit transferee's entire records in aaccordaance
with Article IV of this Lease.
The Transfer fee shall be perpetual and shall apply to ally successive"Transferprocured by
the terms of this Lease for as long as this Lease is active, including modifications and extensions,
if any. The acceptance by Lessor Of the payment of'rent folloNving any Transfer prohibited by this
Article shall not be deemed to be consent by Lessor to any such Assignment or Transfer, nor shall
the same be deemed as waiver of any right or remedy of Lessor 11CI-CUnder.
10.4 Definitions
NN
II michin(. nt 8 -- For in Leasc ,Igi-eeinenl
As used in this Article, the terra:
"Transfer— mcans:
I . any total or partial sale, or assignment of Lessee's business or Leasehold
Estate or any contract or agreement to do any ofthe saine, including by
entering into a sublease, assignment, transfer agreement, concession
agreement, etc,
2, array transfier of more than forty-nine perceiit (49%) ofthe stock of Lessee
or of the stock of any Owner, other than all Owner whose sharcs,, arc
PUN icly traded, if the transt"er results in a transfer of more than fiorty-nine
percent (491M)) of the beneficial ownership of Lessee;
3. any merger, consolidation or sale or lease of all or Substantially all ofthe
assets of the Lessee or of any Owner, other than all owner whose shares
are publicly traded.
"Owner" means:
any person, firm, corporation or other entity which owns,, directly or
indirectly, legally or beneficially, more than fifteen percent (1 `r%) oftlic
stock of the Lessee, but Shall not include any shareholder of all Owner
",]lose shares, are publiely traded,
"Owner whose shares a)[ licly_trad.e.d- rneans:
1. Kin Owner who has filed all effective registration statement with the
Securities & Exchange Commission (()r its successor) with respect to the
shares of any class of its voting stock or of arl.1 classes ofany other form
of ownership interest which includes voting rights-, and
I whose voting stock and other Iirrn of ownership interest described ill
clause (1) is listed for trading purposes on a SCCLII-itiCS CXChMIgC subject to
the regUlatOry.iurisdiction ofthe Securities & Exchange Commission (or
its Successor) or is publicly traded over the counter.
10.5 Acceptable Ti -a nsfers
The lessee recognizes that the operational experience of the Lessee as set forth in the
proposal was given special consideration by the LCSS0r in the J)Ublic selection process undertaken
by the Lessor for the award of this Lease, Therel"ore, lessee agrees that except as permitted
pursuant to this Article X of this Lease, no Transfer may be made, Suffered or created by the
Lessee, or any Owner without the prior written consent of the City
'ity Manager, which consent shall
not be unreasonably withheld or delayed. The famving 'rrallsfers shall be permitted hereunder
WithOLIt the Written approval of the City Manager:
(a) Any 'Transfer directly resulting frorn the foreclosure of Lessee's Leasehold Estate,
provided that such purchaser Or grantee is all institutional investor a bank or
othcr similar financial institution) or all agent, designee or norninee of an institutional
investor which is wholly owned or controlled by all institutional investor, and that SLICII
PLIT-Chaser or grantee �vltlnn six (6) months after taking possession ofthe Preinises, shall
have entered into all agreement -fior the management and operation ofthe Premises with
all Acceptable Operator or is itself an Acceptable Operator;
28
,411achniml 8 --- Forni
(b) the iSSLUA11CC of' stock or stock options tea Lessee's directors, Officers, or employees,
provided the stock or stock Options issued constitute, in the aggregate, less than fifteen
percent ( 15%) of the issued and outstanding stock of Lessee;
The parties hereby acknowledge and agree that anything herein to the coritnary
notwithstanding, tile "going public" by Lessee, including, but not limited to, the filing of' a
registration statement with the Securities and Exchange Commission and/or the creation of'one or
more classes of stock and the offerina of' shares of stock to the public liar purchase, sliall not
COnStitUte a Transfer hereunder and shall not require the consent of the Lessor.
Any consent to as Transfer shall not waive or abridge any of time Lessor's rights to consent
Z7
to as subsequent Transfer. Any Transfer made in violation of the terms hereof shall be null and
void and of no force and effect. Any transt"cree rnust be an institutional investor (as provided
above) or an Acceptable Operator in each such instance,
10.6 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 iril'bri-nation necessary fior
the Lessor to make an evalUatl0n, of, the, proposed Acceptable Operator according to the
rquirements of this Lease) of"any Transfer ofwhich Lessee, or its officers shall have knowledge,
not less than thirty (30�) days prior to any such proposed Transfer, and the I-essor shall within thirty
(30) clays of its receipt Of SUCII information, advise Lessee in writing if it shall consent to sartic. If
the Lessor shall not consent to a Transfer, the City Manager shall state the reasons for such
disapproval in his notice to Lessee, Ifthe Lessor is not i-cquirecl to consent to aTransfer 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 that City Commission approval is required by this I -ease,
the City Managershall useclue diligence to present the request for Transfer to the City Commission
as soon as practicable and the this: fior performance by Lessor shall be reasonably extended to
provide sufficient tirne f6r presentation to the City Commission.
10.7 lifformation as to Shareholders, etc.
If applicable, Lessee shall from time to time throughout the LeaseTerin, 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
I of the Lessee, setting I"cWh (to
the extent known) the full names and addresses of material holders Of stock interests in Lessee,
and the extent of their holdings, and in the event any other parties have a niaterial beneficial interest
in Such stock, their full names and addresses and the extent Of such interest as determined Or
indicated by the records of' 1...essce. Notwithstanding the foregoing, the infomiation required by
this Section shall not be required to be furnished with respect to the shareholders of" any Owner
whose shares are pUblicly traded. As used in this section, the term "material" shall mean ownership
of not less than a ten (I M4j) percent interest in Lessee.
111.8 Effectuation of Permitted Transfers
No Transfer shall be effective unless and until:
Attachment 8 — Torin. Lease Agreenient
(1) all Rents, taxes, assessillents, inipo'sitions, insurance, permitting and other charges
required to be paid by the Lessee under this Lease shall be paid by the Lessee Lip to the date of
transfer, and all other covenants and agreements to be kept and perfornied by the Lessee shall be
Substantially complied with at the date of the Transfer; and
(2) the entity to which such Transfer is niade, by instrurnent in writing reasonably
satisfactory to the City Manager (Sub' raI as to legal form by the City Attorney) and in
(subject to apprm
a fiorm recordable among the land records, shall, for itself and its successors and assigns, and
especially for the benefitt of" the Lessor, expressly assurne all of the obligations of Lessee Under
this Lease, agree to be subject to all conditions and restrictions to which Lessee is subject,
including the additional guarantees required under SCCOOLI 16,5 of this pease; provided, however,
that any transteree shall not be required to assume any personal liability Linder this Lease with
respect to any matter arising
, prior Or Subsequent to the period of such transferee's actual
ownership, partial or whole, of the Leasel-iold Estate created by this Lease (it being understood,
nevct-theless, that the absence of any SUCII liability ft)l- Such matters shall not impair, impede or
prcj Lidice any other right or remedy available to the Lessor fear ClefilUlt by Lessee). Nothing hereill
shall be construed to relive or rclease the Lessee from liability for the perfiormance o['all of the
obligations of Lessee under this Lease.
if Criteria for Consent for Transfer
The Lessor may, at its sole discretion, condition its consent to a permitted Assigimicilt,
Sublease or Transfer upon satisfaction of all or any of the following conditions:
(1) The proposed entity to which the Leasehold is being assigned, transferred, or subleased
("Transferee"), shall be an Acceptable Operator;
(2) Transferee shall satisfy the qualification requirements imposed Upon Lessee and set out in
the original RFP;
(3) Transferee shall have no open pernlitS, hells, fines, UnSaf`e Stl-LICtUrCS, or atiy open lawsuits;
(4) The net assets of the Transferee immediately prior to the Transfer shall not be less than:
(a) the net assets of the Transferor whose interest is being transferred immediately prior to
the Transfer; (b) the net assets of said Transferor on the Leaise Date adjusted fior inflatioilry
or (c) an arnount reasonably necessary to discharge Lessee's rei-naining obligations
hereunder;
(5) Such Transfer shall not adversely aft"co the quality and type of business operation which
the Lessee has conducted theretoR.)re;
(6) Such Transferee,, shall possess qualifications for the Lessee's bUSi1lCSS substantially
equivalent to Lessee or an Acceptable Operator, or shall engage an Acceptable Operator
and shall have derrionstrated recognized experience in successfully operating Such a
business, including, without limitation. experience in successfully operating a similar
quality business,
(7) Such Transferee shall agree to continue to operate a business similar to the use conducted
at the Premises pursuant to this Lease;
10
Itlachincnt 8 — Form Letise,,Igreenwwt
(8,) SUCII Transtcrec shall aSSUrne in writing, in a oral acceptable to Lessor, all of Lessee's
obligations hereunder, and Lessee shall provide Lessor with a copy of all CiOCUMents
pertaining to such Transfer;
(9) Transferee shall submit to a crc(lit check and other background checks as Lessor sees fit.
Failure or refusal to SUbrnit to said credit and background checks shall be an automatic
disqualification of the potential transferee;
(10) Transferee shall Be required to pay, as minimum of' fair market Value for the assignment,
sublease or transfer,
I I ) Lessee shall pay to the Lessor any (I Lie, but u ripaid Rent,
10.10 Liability of Lessee
If a Transferee does not meet all of the criteria set forth in this Article, Lessor, at its sole
option, may require Lessee or Owner transferring such interest to remain liable undcr this Exase
for the perlbri-riance of all terms, including, but not limited to, payment of Rent due Under this
Lease. If a Transferee does meet the criteria set forth in this Article, Lessee shall be released from
any and all remaining liability and/or obligations set forth in this Lease fron-1 the effective date of.
such Assignmeut or Transfer, I)U1 shall, remain liable and responsible as provided by this
Agreement and applicable laws for performance of duties including, without litintation, payment
of'rent prior to the effective date of'such transfer.
10.11 Acceptance of Rent from Transferee
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 'rransfer, nor shall the same
lie deen-ied to be a waiver of my right or remedy of I...,essor hereunder.
10.12 Transfers of the Lessor's Interest
At the Lessee's rcClUeSl, Lessor shall provide the Lessee copies ofany and all agreements
Oar contracts pertaining to the total or partial, sale, assignment, conveyance, rriortgage, trust or
Bower, or other transfer in any mode or Conn of or with respect to the Lessor's reversionary or fee
interest in the Premises, 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 agrees to
incorporate the terms and conditions set forth in this Lease or in any agwenient or contract with
Such purchaser, assignee, mortgagee, or trustee.
10.13 Mortgages of Learrschold Interest
10-13.1 Right to Mortgage, All rights of` Lessee pursuant to this Lease are mortgageable,
pledgeable, assigna,ble or transferable, in accordance with, the terms of this Lease.
Any SUCCCSSOr to, or assignee of', the rights of Lessee hereunder (whether as the
result of voluntary assionnient, foreclosure, assignment in lieu of foreclosure or
otherwise) shall hold or be critilled to exercise the rights of Lessee hereunder as
Fully as if named as such party herein. No party exercising rights as Lessee
ff
Amu,hnient 8 — Ftvni Lease Agreemew
hereunder shall have or iflCUr any liability for the acts of any other party which
previously exercised or subsequently shall exercise such rights. In no way shall
Lessee have any authority to mortgage the ownership interest belonging to Lessor.
18.1 .2 Requirements for Mortgag , In addition to the rcquircinents specified throughout
this Lease, Le,"ce inay only pledge, hypothecate, or otherwise mortgage the
Leaschold Estate 1A,lth the written permission ofthe City Manager, the permission
for which shall not be unreasonably withheld.
10.13.3 No�tice, In the event Lessor gives as notice of detiiult under this Lease to Lessee,
Lessor shall also send a copy ot'such notice to any li,oldcrof a Leaschold Mortgage,
provided SUCII 1101dCr Or its mortgagor shall liave sent Lessor a notice infivriling it
of the existence Of SUCh LCaSChOld Mortgage and the name of the person. or officer
and the address, to which copics of` tyre notices of defaults are to be sent (each a
"Mortgagec,"). Such Mortgagee shall have all additional thirty (30) days to CUre,
any default that is capable of being cured with the payment of money, and an
additional thirty (30) days for all other defaults (and suctiadditional time, as to non -
monetary defaults, as the Mortgagee in good faith and with reasonable diligence
either attempts to cure such default or cornniences ,and thereafter prosecutes with
reasoriable diligence, it' not enjoined or stayed, appropriate proceedings for
601-cclosurc Or other erijbi-ceirient of the liens securing its financing). Initiation of
foreclosure proceedings against Lessee shall constitute'"diligence"" by a Mortgagee
herCUnder so long as such foreclosure proceedings are C011tirll.,K)usly pursued and all
rent and additional rent is being paid to Lessor by Lessee or Mortgagee during the
pendency ofany foreclosure proceeding. The forcgoing requirements to give notice
of deftlUlt to a Mortgagee and all0W such klortgagee yin opportunity to care such
defLIUlt Shall not delay the exercise of self-help remedies by Lessor in the event of
an emergency.
10. 13A Once Lessor has received as notice as specified in the
preceding section, then, fi-orn and after receipt Ot'SLIC11 110tiCC:
I No voluntary termination by Lessee of this Lease shall be CffeCtlVe Unless
consented to in writing by such Mortgagee; and any material amendment or
matetial modification of this, Lease or the exercise by Lessee of' any option to
terminate this [,,case without the written consent of such Mortgagee shall be
voidable as against such Mortgagee at its option, If any Mortgagee shall fall to
respond to any written consent under this section within thirty (30) days after the
receipt by such Mortgagee of such written request (which written request shall
triake specific reference to this section), the Mortgagee shall be deemed to have
denied its consent to such request, No notice required to, be given to Lessee by
Lessor shall be effective as to such Mortgagee 1.1111CSS and until as copy thereof has
been glVC11 to SUCII Mortgagee.
(2) Lessor shall accept perforriiance of any and all of Lessee's obligations hereunder,
including the obligations to pay rent, 6-011-1 early SLICII Mortgagee and the performance
of such obligation by such Mortgagee shall be deemed to have been a CLUT effected
by Lessee. Lessor hereby consents to the entry onto the Premises by any such
32
,411ach17jent8 Foi-iiil,(,(zselilcri-e,c"i-iieiiI
Mortgagee t'(,)r the pUrp()Se of effecting the cure, of a.rny default by Lessee. Ill the
event of a default by Lessee hereunder, any Mortgagee may affect the Cure of such.
CICEIRIlt by foreclosing its Mortgage, obtaining possession of the Premises and
performing, all of Lessec's obligations hereunder.
(3) 1f it shal I be necessary for any such Morgagee to obtain possession ofthe Premises
to CffCCt any SUCIA CUrC of a defiltlft by Lessee under this t. -ease, then Lessor shall
not commence any proceeding or action to teril-unate the Lease Tcrrn it' (a) such
Mortgagee shall have informed Lessor within the grace period applicable to such
Mortgagee that such Mortgagee has taken steps to t6reclose its Leasehold
Mortgage, to obtain possession of the Premises, (b) the rent and all monetary
obligations of Lessee shall be paid an(] all other provisions and reqUo-CITIC[ItS of this
Lease which are capable of' being (:)])served and, perfornacd without obtaining
possession of the Premises are so observed and performed white any such
foreclosure, other action or other remedy is being prosecuted by any such
Mortgagee and for so long thereafter as SUCII Mortgagee shall have obtained
possession of tile Prerniscs, and (c) Such Mortgagee shall be diligently prosecuting
Such foreclosure or cancellation and attempting to effect a cure Of the default.
Nothing herein contained shall be deemed to require the Mortgagee to continue
with ally foreclosure or other proceedings, or, in tile e%,,'Cllt Such Moilgagee shall
otherwise acquire: possession of the Premises, to Continue Such possession, if the
def'ault in respect to which Lessor shall have given the notice shall be remedied.
(4) I-cssor agrees that in the event of the termination of' this Lease by reason of any
&J'aUlt by Lessee or rejection of this Lease in a bankruptcy proceeding effecting
Lessee, and if Lessor has prior to such termination been given written notice ofthe
narne and address of such Mortgagee, Lessor will enter into a new agreement for
the Pren-rises with any Mortgagee or a wholly owned Subsidiary of' Mortgagee for
the remainder of the Lease Term, efactive as of` the (late Of'SUCh termination, at the
rent and Upon the tcrilis, options, provisions, covenants and agreements as herein
contained, provided:
i. Such Mortgagee shall make written request upon Lessor for such new
agreement prior to or within ten (10) clays after the (late Of such termination
and SUCII written rCCILICSt is accompanied by payment to Lessor of all SUMS
then due to Lessor hereunder;
ii. Such Mortgagee or its nominee shall pay to Lessor at tile tirne of tile
execution and delivery of said new lease any and ',Ill Sums which would at
that time be due hereunder but fOr Such termination; and
ill. That in the event there exists more than one Mortgagee, the first Mortgagee
shall have the First option to become lessee Under the provisions of this
section, with priority over the second Mortgagee.
(5) No Mortgagee shall become liable under the agrecnients, terms, covenants or
conditions of this Lease unless and until it becomes the owner of tile estate held by
Lessee.
All of the provisions contained in this, Lease with respect to Leasehold Mortgage and the
In
"1111achment 8 - Form Lease Agrcenzenl
rights of Mortgagees shall survive the termination of this Lease for such period offinle as shall be
necessary to effectuate the rights granted to all Mortgagees by the provisions of this Lease.
Nothing herein contained shall reqUire any Mort gaigee or its nominee to cure any default
by Lessee hereunder, unless Moriggagee accepts assignment and aSSU111pti0n; however this shall
not preclude the City from seeking ajUdicial remedy for any such losses or breaches of the 1 -case
in a manner consistent with the tcrins ofthis Lease.
ARTICLE XI
COM PLIA NCE WITH LAWS
11.1 Compliance with Laws
Lessee shall, at Lessee's sole cost and expense, comply with all applicable Federal, State,
and local laA,,s, and all applicable permitting and regulatory requirements, rules, regulations, codes,
ordinances, and written policies now in force, or which may hereafter be in force, pertaining to
Lessee or its Use Of the Premises, and shall faithfully observe in the use Of the Premises or in the
perforniance of any alterations (including, WithOUt limitation, the C01IStrUCtiOn of any Leasehold
Improvements) all applicable laws now in force or which may hereafter be in force.
A RTI CL E ,XII
ENVIRONMENTAL LIABILITY
12.1 Definition of Terms
For purposes of this Article X11 the following terms shall have [lie meaning attributed to
them herein:
L -Hazardous Materials" moans any toxic or hazardous substance, material, or waste, and
any other contaminant, Pollutant or constituent thereof, whether liquid, solid, serni-
solid, Skidge and/or gascous, inclUding without limitation, cheinicals, compounds,
Pesticides, petroleurn products including crude oil and any fraction thereof, asbestos
containing materials or other similar SUbstances or materials \VhiCh are regulated or
controlled by, under, or pursuant to any federal, state or local statutes, laws, ordimances,
CO&S., rules, 1-Cg-Ul,`1tiO1'1S', orders or decrees including. but not limited to, all applicable
laws.
2. "Environmental Laws- shall include all applicable laws, rules and ordinances, existing
now or in the future during tyre Tenn, as amended, modified, supplemented, superseded
or replaced at any time during the Term, that govern or relate to: the existence, cleanup
and/or remedy o' contamination of property; the protection of the environment fi-orn
spilled, deposited or otherwise eniplaced contamination; the control ofliazardOLIS or
toxic Substances or wastes; the use, generation, discharge, transportation, treatment,
removal or recovery of FlazardOLIS Materials; Or otherwise regulating the impact of
h11111,111 activities 011 the environment.
34
Aitachinent 8._ Forni Lease 4gi-ccinent
3. "Costs" shall mean all costs incurred in connection with correcting any violations of
any Environmental Laws and/or in connection with file clean -UP of contamination oil
the Premises,
4 -C el.n U " shall mean any remediation and/or disposal of Hazardous Materials at or
froill the Premises Which is ordered by any federal, state, or local environmental
regulatory agency,
12.2 Lessee's Environmental Covenant
Tlie Lessee shall 1104 cause or permit any Hazardous Materials to be brmlgllt upon, treated,
stored, disposed of', discharged, released, produced, ruaI'lUf`aCtLIrCd, generated, refined, Oa- used
upon, about or beneath the Premises or any portion thercol"by the Lessee, its agents, employees,
Coll tractors, licensees, or invitees except as may be custoillarilyr Used and required to Conduct
Lessee's business or as may be used in compliance with Environmental Laws. Lessee shall not
f)ermit any activities oil the Prernises, that would violate Environmental Laws. If Lessee should
breach this covenant, Lessee shall take all actions necessary to comply with all Environmental
Laws all(] shall, at Lessees sole cost and expense, perf'orrn any and all Clean Ula. Lessee's
obligati011 Under this Section shall survive the expiration or earlier termination of this Lease f'()i- a
period oftNvo (2) years,.
12.3 Survival of Lessee's and Lessor's Obligations
The respective rights and obligations of Lessor and Lessee under this Article XII shall
SUINiVC file expiration or termination ofthis Lease for a period of one (I ) year.
AR.'rI.CI.,E XIII
DAINIAGE OR DEs,rRUCTION OF PREMISES
13.1, Definitions
For the 1)url)oses of this Article X111, the following words shall have the meanings
{attributed to them in this Section 1:3.1:
(a) "CL)IRILI gM�-,J!e�;Lrqygd " means the dCStI-UCtj0Il Of the sale, leasable use Or Occupancy
of a substantial llortion of the Pret-nises under this Lease which damage cannot
reasonably be repaired, restored or replaced Nvithin 011C hundred eighty ( 180) calendar
days from the (late on which the damage occurred.
(b) "Partial Destruction" means any damage to the Premises which darnage can reasonably
be repaired, restored or replaced within one hundred eighty ( 180) calendar days from
the date on which the damage Occurred,
13.2 Duty to Repair, Restore or Replace Premises after Damage
In the event of damage by fire or Otherwise of the Premises including any machinery,
fixtures or equipment winch are a part of the Premises, the Parties agree as Hallows:
35
Attachment 8 For LeaseAgreetnent
In the event of Partial Destruction of the Premises, within sixty ((i0) calendar days of the
damage (SUbjCCt to reasonable delay and/or Force Ma�jeUrc), (i) the Lessee shall use the Gross
Insurance Proceeds available, together with Lessee's mvn funds (if the Gh-oss Insurance Proceeds
are inSUffiCiCIIt) to commence and diligently PUrSUCt0 COMPICtiOn Within One hundred eighty (1 fdtl)
calendar (lays fi-orn the (late the damage occurred (SUbJect to reasonable extension due to Force
N4,jjCUre or delays by Lessor in the repair, restoration, or replacement of tyre damaged or destroyed
portion of the Premises as reqUircd in order for the Lessee to cornincrice the restoration of the
Leasehold Improvements), the repair, restoration or replacement of the damaged or destroyed
portion of the Leasehold Improvements ("Restoration Work"), and this Lease shall remain in full
tbrce and effect, with no abatement in Rent,
In the event tile Premises arc Completely Destroyedat any tirrie during I ease Term, Lessee,
in its sole discretion, shall have the option to select wliether to terniinate this Lease within sixty
(60) days of the damage. In the event the Lessee shall determine not to terminate this [.ease, then
at the Lessee's sole cost and expense, (together with Gross Insurance, Procceds a,,,aikable for that
ptuj-)ose), I-essee sliall commence and diligently PUrSUC to completion the Restoration Work, ill
accordance with the: provisions of'`vection 13.3 below, and Lessee shall complete the Restoration.
Work within twelve (12) months from the date the damage OCCU171-Cd (SLII-)jCCt to reasonable
extension due to Force MLIjCUI-C Or delays by Lessor in the repair, restoration, or replacement of
the damaged or destroyed portion of the Premises as required in order for the Lessee to commence
the restoration of the Leasehold Improvements), and this Lease shall remain in full -force and effect,
with no abatement in Rcnt, Alternatively, the Lessee may elect not. to undertake the Restoration
\Vork by providing written notice to Lessor and in wvliich event this Lease shall terminate, and the
Lessee shall, at the Lessee's sole cost and expense, (but using along with the Lcssee's own funds,
Gross InSUrance Proceeds av4a.ilable for that purpose) deliver possession of the Prunises to Lessor-
free
essorfree and clear ofall debris and Lessor cuid Lcssee shall each be released thereby ftom any further
Obligations hereunder accruing after the effective date of such termination, except that such release
shall not apply to any Rent or other sLIMS aCCI-UCd or (ILIC, Lessee's obligations regarding surrender
of the Premises including the removal of debris, and environmental liability as provided f6r in
Article MI.
13.3 Performance of ftestoration Work
In the event Lessee Undertakes any Restoration Work in accordance with the provisions of
this Article, such Restoration Work by Lessee shall be substantially the saine as possible to tile
condition that existed immediately prior to the clarnage, mid shall he performed in accordance with
the provisions Of Article V applicable to the construction. ofany Leasehold Improvcnients. Lessor-
hereby
essorhereby acknow1c(Iges and agrees that Lessee's obligations hereunder and the time periods set forth
above arc SLIIIjCCt to Force MaJCLIre, and reasonable extensions based on the severity of the darriage,
13.4 No Additional Right to Terminate
Except for the Lessee's right to terminate this Lease in accordance with the provisions of'
Article XIII set forth herein, Lessee waives the provisions of any statute, code or judicial decision
which grants Lessee the right to terminate this Lease in the event of"daniage Or -destruction Of tile
Premises.
36
Allachniem'8 - F?,wai Leasc Agreemcnt
13.5 Lessee's Right to Ter ininate
If" Lessee elects to exercise the option given Under Subsection 13.2, to terminate this Lease,
then any and all Gross Insurance proceeds paid for damage or deStRIC0011 of the Prernis'es shall be
applied as follows:
First toward debris removal; and
Second, toward the balance ofthe proceeds, if arlyl, after pay1nenI Ofafly Rent clue, shall be
paid to the Flartics as the respective Rent shall be prorated based on the useful life of the
premises prior to tile Casualty event as compared to the remaining term of" the Lease and
any option periods WithOLIt C011sideration ofthe termination of the Lease as provided in this
Section.
13.6 Payment for Construction of Restoration \Vork
Except as otherwise provided for in this Article XJ It, all Gross Insurance Proceeds shall be
applied by the Parties to the payment of Che cost of the Restoration Work to restore the premises,
and the Gross Insurance Proceeds shall be paid OLIt, the Restoration Work shall be performed, and
the Lessee shall make additional deposits with an escro\v agent, if any are required, as n -my be
applicable.
13.7 Collection of insurance Proceeds
The Lessor shall in no event be responsible For the rion-collection of any insurance
proceeds Under this Lease rout Only for insurance money that shall c(.)rne into its harids,
13.8 Unused Insurance Proceeds and Deposits
In the event any Gross Insurance Proceeds Or SUIns deposited with an escrow agent or
Lessor in connection with the [�estoration 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 L.intil
completion of the Restoration Work,, and if the Lessee shall not then tic in defill-Ift Under this Lease
in respect of any matter or thing ofwhich notice of default has been served on the Lessee, then the
remaining funds shall be applied first towards any Unpaid lent, and the remaining balance paid to
the Lessee.
ARTICTE XIV
EMINENT DONIAIN
14.1 Total Condemnation
In the event that all of the premises (or such portion thereof as shall, in the good faith.
opinion of Lessor or Lessee, render it economically unfeasible for its intended purpose) shall be
taken fOr any public purpose by the right of condemnation, the exercise of the power ofernfilent
dornain or shall be conveyed by the Lessor and Lessee acting jointly to avoid proceedings of'such
taking, the Rent pursuant to this Lease shall be prorated and paid by the Lessee to the Date of
37
Atlachinent 8 — Form LeaseAgreement
Taking or conveyance in IiCU thereof, and this Lease shall terminate and become null an(] void as
of the Date of' Taking Or Such Conveyance. Any damages resulting to, Lessor and Lessee,
�respectively, and to their respective interests in and to the Ilrernises, the Leasehold Improvements,
and in connection xvith this Lease (which arnOUnt of" Barna es sliall be calculated based oil the
remaining term of the Lease and any option periods without consideration of the tenninati('Al of
the Lease as provided in this Section), shall be separately detern-nned and COMPUIC(I by the Court
having jurisdiction and separate awards and"WhIll-nefItS With respect to darnages to Lessor and
j _-,
Lessee, respectively, and to each oftheir respective interests, shall be made an([ entered,
14.2 Partial Condemnation
fn the event less than all of the Prerniscs shall be taken for any public use or pull-)ose by
the right or the exercise of the power ofeminent domain, or shall be conveyed by the Lessor and
Lessee acting )I
I zn j(- infly to avoid proceedings of such taking, and Lessee shall be of the good raith
opinion th"'It it is economically ficasible to effect restoration thereof, then this Lease and all the
covenants, conditions and provisions hercunder shall be arid remain in full force and cfl'ect as to
the Premises not so taken or conveyed. Lessee shall to the extent the proceeds of the Gross
Condemnation Award are made available to It, pursuant to the terms hereof, remodel, rel-mir and
restore the renfaining portion of the Premises so that it shall be comparable to the Prefinses prior
to the con(Jenination; provided, however, that in so doing, Lessee shall not be reCjUirCd to expend
more than the aniOUnt Ofany Gross Condemnation Award actually received by Lessee.
The Gross Condernnation Award alloNored to Lessor and Lessee shall be paid to and
received by the Parties as foll()ws:
(a) There shall be paid to the Lessor the value of the portion of the land so taken and
Lessor's reversionary interest in the improvements so taken, which land and
reversionary improvements shall be valued as it' uncricurnbered. Lessor shall ftirther
be paid an anl0UIA by which the Refit has been I-CCIL.Iced by the taking-,
(b) There shall be paid to the Lessee any amount by which Lessee's profits, and VaILIC Of.
Lessee's interest in the Lease and the premises have been reduced by the taking after
any payinent required by the Lease,
(c) There shall be paid to the Lessee the amount required to complete file remodeling and
repairs to the Premises pursuant to (a) above,,
(d) The l-essor and Lessee shall be paid portions of the balance of the Gross C I ondemnation
Award or awards, if any, which are allocable to and represented by the value oftheir
respcctive interest in the Pren-iices as ('01.1nd by the Court ill its conderrination award,
14.3 Adjustment of Rent Upon Partial Taking
Ill the event a part of the premises 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 1-csseeicting,jointly
to avoid proceedings Of Such taking, then Refit pursuant to this Lease shall be paid by Lessee to
the Date of' Taking or conveyance in lieu thereof., and after such date the Base Refit fim- the
remainder of the Lease Term shall be reduced on ,,in equitable basis and Ticket SUNI'large shall
continue at the same rate.
38
"Ittoehinent 8 — Form Lease Agreeincill
14.4 Deposit of ("ondenination Award with Escrow Agent
Unless the effect of a condenination proceeding shall be to terminate this Lease, by
operation of law or as providcd in Scction 14.2 above, any Gross Condemnation Award made ill
respect to the Premises in as condemnation proceeding shall be deposited with all escrow 'agent
selected by the Lessor to be disbursed for the cost of restoring the Premises.
14.5 Temporary Taking
In the event that call or alily portion of the Premises shall be taken by the right of'
condemnation or the exercise of the power of eminent domain 1'()r governmental use or occupancy
I'm a temporary period, this Lease shall not terminate and Lessee shall C011tilll,le to perform and
observe all of its obligations (Including the obligation to pay Rent as provided throughout this
I -ease) as though the temporary taking had not occurred except only to the extent that it may be
prevented from so doing by, the terins 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 Lill or
any part ofthe Premises, If the period of governmental occupancy extends beyond the termination
of'the Lease Tenn, the [,essor shall be entitled to receive that portion of the Gross Condemnation
Award allocable to the period beyond the termination ofthe Lcase Tel -111. The a11.110rrnt ofany Gross
Condemnation Award Payable to Lessee, oil account of a temporary taking of all or ally part ofthe
Leasehold Improvements, shall be deemed as part ofthe Lessee's Leasehold Estate Im all purposes
ill this Lease. If the Gross Condemnation Award (toes not separately determine the ainount
applicable to the taking of the interest of the Lessor in this Lease and in the Lcaschold
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 tile court
oil stipulation for the purpose of as judgment deter'lilinative of the interest of the Parties in
accordance with the terms ofthis sub-scetion,
ARTICLE XV
PAYMENT OFTAXES, ASSESSMENTS AND OTHER UNIPOSITIONS
15.1 Payment of Taxes and Impositions
From and after the Lease Date, Lessee shall pay all ad Valorell'i and similar taxes,
surcharged, levies, charges, assessments, and impositions levied against the Preiniscs before any
fine, penalty, interest or costs are added for non-payment. All such ad valorem and similar taxes,
governmental levies, charges, im ositions and assessments shall be payable by Lessee directly to the
Z:� P
taxing authority prior to delinquency (WithOUt penalty) Of Such taxes, provicicol that Lessor has
advised Lessee ol"Its share Of Such taxes and assessments in as written notice, including a copy ofthe
tax bill prior to delinquency.
15.2 Installment Pay'nients of Ad vaioren, Taxes and Impositions
Lessee agrees that the Premises or any Interest thereon is subject to ad valorem taxation.
I-essee, at its option, may enroll in the Miami- dada; County Ad Valorem Tax Payment Plan,
39
.41tochnient 8 - h'onn Lease Agreemew
If by law, any ad valorem taxes or other Impositions are payable or may, at the option of
the taxpayer, be paid in installments (whether or not interest shall accrue on the unpaid balance of
the Imposition), the Lessee may pay the sanie (and any accrued interest on the unpaid balance of'
the Imposition), ininstallments before any fine, penalty, interest or cost is amdded 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 Lease Date and part turf which is in.ClUde(.1
after the Lease Date shall be adjusted as between the Lessor and the Lessee as of the
coniniencernent 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 LeaseTerm, an(] the Lessor shall pay
the renuunder, 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 tirric after Lease Term shall be ad , justed as between time Lessor and the I-essee as of the
termination of the Lease Term, so that the Lessee shall pay that proportion of the Imposition
attributable to that pail of the fiscal period included in the Lease Term, and the Lessor shall pay
the remainder, il"applicable.
15.3 Paynient in Lieu of Taxes
The Lessee shall be responsible fi-A- the aillowing payments or for payrrients in lieu of taxes
("PILOT-) during time Use period in the event the property is deemed exempt fon n ad valorein real
estate taxes, in which case,, Lessee will pay the (171ty an antl1lal PILOT in an arnount initially equal
to sixty cents (S.60) per foot, per boat slip. The PILo,r will increase on each anniversary of the
Lease Date at a rate equal to three percent (3%)). If Lessee is required to pay ad valorcin taxes oil
the Property, it shall not be mjUired to pay the PILOT,
15.4 Proof of Payment
The Lessee shall furnish to Lessor,, within thirty (30) days after the date whenever any
Imposition is payable by or ori behalf of the Lessee, official receipts of the appropriate taxing
authority, photocopies or other proof satisfactory to the Lessor, evidencing the payrnent.
AM I ICLE XVI
DEFAULT OF LESSEE
16.1 Lessee Default
The OCCLUTC11ce of any, one or niore ofthe following events is deemed a "Lessee Default":
a. Iftlic Lessee defaults in time Clue and punctual payment of any installment turf Rent,
as and When due and payable in accordance with this Lease, and such deflault
continues for more than ten. (10) days after the sum is (fuel
b. Except with respect to an event of Force Majeure, in the event Lessee shall cease
to operate its bUSiTICSS, unless Ili connection with alterations or renovations, for a
period turf fifteen (l 5) consecutive days;
e. In the event a petition in bankruptcy under any present 01.- fUtUre bankruptcy laws
(including but not linlitCd to reorganization proceedings or VOILIntary insolvency
401
,41mch)),ic;?1 8 - Form Leiise Agreernent
fifing) be filed by or against Lessee and such petition is not dismisscd or contested
in good faith within sixty (60) days from the filing thereof, or in the event Lessee
is adjudged as bankrupt;
d. In the event an assignment for the benefit ofci,-cdit(:)rs is made by Lessee,
e. In the event of an appointment by any court of receiver or other court officer of'
I-essee's Premises and such receivership is not dismissecl or contested in good finth
within sixty (60) days fi-oin the (late Of such appointment,
f; In the event Lessee rernOVes, attempts to remove, or permits to be reinoved trona
the Prel-niSCS, except in tile usual course of trade, a substantial portion of the
Leasehold In-iprovcments (furnishings, fixtures, and C(ILlipment) installed or placed
Upon the Pren-ilses, by the Lessee during the Lease 'rerml.
g. In the event I-essec, before the, expiration of' the Lease Term, and Without the
written consent of' Lessor, abandons the possession of the Premises, or uses the
same for purposes other than the purposes for which the same are hereby leased or
as otherwise permitted by Lessor, and such deffiLilt continues for more than thirty
(30) days after written notice of the, clef"Cault from the Lessor to the Lessee;
la. In the event an CXCCUtiO11 Or other legal process is levied upon the goods, ftlrnikire,
effects or other personal property of Lessee brought can the Premises, or upon the
interest of Lessee in this Lease, and the same is, not satisfied, dismissed or contested
in good faith within sixty (60) clays from such levy,;
In the event Lessee dCfaUltS in the due Im-formancc or observance of any Lease
term. covenant, condition or provision, other than the payment of Rent, Including
Without limitation Cailure to maintain insurance coverage in effect, ftlih.lre to obtain
Im-inits or approvals required by law, or failure to timely pay taxes, fees,
si.,ircharges, or Other Hripositions when required by law, and such dctault ContioLICS
for more than thirty (3( fit)) clays of written notice of the defilUlt f'rom the Lessor to
the Lessee, Or SUCh longer licriod as is reasonably necessary to diligently cure SUCII
default," or
J Il records under the en-CUrastances set 6orth
Inability of Lessee to produce financlai,
in Article IV of this Lease,
16.2 Remedies of Lessor
If any, Lessee Default occurs, I-essor shall have the right after the expiration of the
applicable cure period, and at the sole discretion of Lessor, to terminate this Lease Upon providing
five (5) days written notice. An Event of'Default shall be deemed to have occurred at the expiration
ol'such five (5) day period if the defluilt has not been cured by the expiration of such five (5) day
period. Lessor may terminate the Lease irrespective of any suit or action IM-OUght by I..,essee and
the time period required for termination of this Lcase shall not be tolled by the filing of a suit or
action.
Additionally, if any Event of'Default OCCUrs, Lessor may, at its option, t1ron-i time to time,
without terminating this Lease, re-enter nand re-Ict the Premises, or any part thereof, as the agent
and f"or the account of Lessee upon such terins and conditions as Lessor may deen-i advisable Or
41
'A Hach afell t 8 -- FormLeo,.S°e Agi-cenlei'll
satisfactory, in which event the rents received on such re -letting shall [)e applied first to the
expenses of such re -letting and collection including but not limited to, necessary renovation and
alterations of the Prerinses, reasonable attorney's fees, any real estate commissions paid, and
thereafter toward payment ofall sums due or to become due to Lessor hereunder, and if a sufficient
SUITI -shall not he thus realized or secure([ to pay such SUMS and other charges, at Lessor's option,
Lessee shall pay Lessor any deficiency immediately Upon demand there Core, notwithstanding that
Lessor may have received periodic rental in excess ofthe 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 Prcmises in any event. l,ess(-,)r shall not, in any event, be required to pay Lessee any
SUrpILIS of' any surris receive(:[ by I-cssor on a re -letting of said Premises in excess of the rent
provided in this Lease.
If any Event of Default occurs, Lessor shall have the right to obtain injunctive and
declaratory relief, temporary arid/or permanent, against Lessee for any acts, COMIUCt or omissions
of Lessee, and to Further obtain specific; performance of tiny term, covenant or condition of this
Lease, including bat not limited to the appointment ofa receiver to operate Lessee's business at
the Premises.
If any Event of Default occurs, I-essor shall have the right, at its option, tai declare all Rent
(or any portion thereof-,) for the entire rernaining Lease Terin, and Other indebtedness owing by
Lcssee to Lessor, if any, immediately ClUe, and playable without regard to whether possession ol'the
Preniises shall have been surrendered to or taken by Lessor, and may commence action
iinniediately thereupon and r(:,covcr.judgrnCnt therefore,
If any EN/crit cif Default OCCUI-S, Lessor, in addition to other rights and remedies it may have,
shall have the right to reinove all or any part ol"Lessee's personal property from the Premises and
any personal property removed may be stored in any public warchouse or elsewhere at the cost of;
and for the account of Lessee, and Lessor shall not be responsible for the care or safiekeeping
thereof whether in transport, storage or otherwise, and Lessee hereby waives, any and all claim
against Lessor for loss, dCStrUCtiOn and/or darnage or injury which inay be occasioned by ally of
the aforesaid acts.
No such re-entry or taking possession of. the Premises by Lessor shall be construed as ail
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 may at all times
thereafter elect to terminate this Lease for such PIVViOUS dCF,1Ult. Any such re-entry shall be
allowed by Lessee without hindrance, and Lessor shall not be liable in damages for any SUCII re-
entry, or guilty of trespass or lorcible entry.
It is expressly agreed that the forbearance on the part of Lessor in the 11IStItUtiOn OfUny suit
or entry of"Judgnient for any part ofthe Rent herein reserved to Lessor, shall not serve as a defense
against rior pre.judice a SUbsequcirt action for such Rent. Lessee hereby expressly waives Lessee's
right to claim a merger or waiver of'such SUI)SC(lUent action in any prevIOLIS cult Or 11) 01CjUdgginerit
entered therein, l'urtherniore, it is expressly agreed that claims for liquidated Base Rcrit and/or
Tickct Surcharge may be regarded by Lessor, if it so elects, as, separate and independent claims
capable ol"being separately assigned.
42
Atmehmenl 8 --- 1"orm Letise Agreemew
Any and all rights, remedies and options given in this Lease to Lessor shall be CUn1UIatk'e
and in addition to Lind ),vithOUt Waiver of, or in derogation of, any right or remedy given to it under
any laws now or- hereafter in effect.
16.3 No Waiver by Lessor
The Waiver (either expressed or implied by law) by Lessor of any default Of any tel -111,
condition or- covenant herein contained shall not be a waiver Ofany subsequent (ICI`aUlt of the sarne
term or any other term, condition or covenant herein contained. The consent or approval bN
Y y Lessor,
to or of any, act by Lessee requiring Lessor's consent or- approval shall not be deerned to waive or
render unneccssary Lessor's consent to Or approval Of any SUbs'eqLW11t similar act by Lessee. No
re-entry hereunder shall bar- the recovery of rents or damages for the default or delay on the part
ot'Lessor to errforce any right hereunder and shall not be deemed as waiver ofany preceding default
by Lessee of any term, covenant or condition of this Lease, or as waiver of the right of Lessor to
annul this Lease or to re-enter the Premises or to re -let same.
16.4 Late Payment Fee
Any installment ofcrtt not received within five (5) days after the clue date shall be subject
to a late payment fee. Lessee shall pay, in addition to the payment then due, five percent (51%) of'
the amount due ("Lqtq.j�c "), and in the event that any check, bank draft, order for payinent, or
negotiable instrument given to Lessor for any INlyrnCrIt Under I -ease shall be dishonored Cor any
reason whatsoever not attribUtable to Lessor, Lessor, in addition to the live (5%) percent Late Fee,
shall be entitled to make an administrative charge to Lessee of One Hundred and 0/100 Dollars
(S 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 fim- Lessor to give more than
one ( I ) 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 ofTwenty-five and 0/100 Dollars (525.00)
for each such SLlbse(ILIC11t notice after the first notice. Lessee recognizes and agrees that the charges
Lessor is entitled to make LIPOII the conditions stated in this section represent, at the time this 1 -case
is made, as fair an(] reasonable estimate ot"thc costs of-' Lessor in the achirnnistrati oil, Of the Premises
resulting from the events described herein, which costs are not contemplatcd (M- il:ICILICICCI in any
Rent or other charges provided to he paid by Lessee to Lessor in this Lease. Any, charges becoming
clue Under thiS Section Of this Lease shall be added to auacl become due with the late payment for -
which the charge was asscsscd, and shall be collectible its a part thereof.
16.5 Additional Guarantees
In the event that Lessee defaults in accordance with the terms of this Article, or- otherwise
fails to perforni any obligation required by this Lease, which directly or indirectly causes Lessor
to suffer damages, and thereafter Lessee fails to cure or remedy, the respective default in
accordance to the terms of this Lease, Lessee's parent company, if any, and Lessee's President
shall assume responsibility as a per:S011aI gWll-antor-S (COIICCtiVely "("Juarantor"), and shall pay, the
anIOU11ts dare Or perform the obligation required, as applicable. Guarantor may, at Lessor's option,
be joined in anyaction or proceeding commenced by Lessor against Lessee in connection with and
based Upon the failure of Lessee to perform.
43
�41taehincnt 8 --- 11 Orin Lease 4greement
16.6 Remedies Cumulative
No remedy conferred upon or reserved to the Lessor or the Lessee shall he considere(.1
exclusive of any other remedy, but shall be cumulative and shall be in addition to every other
remedy giVCI'l under this [..case or existing at law or in equity or by statute; and every poNA,er and
remedy given by this I -ease to the Lessor or the Lessee may be exercised from time to time and as
often as occasion nr,,iy arise or as inay be deenied expedient by the Lessor or the Lessee, No delay
or ornission of Lessor or Lessee to exercise any, right or power arising frorn any default shall impair
any right or power, nor shall it be construed to be a w�aiver ol'any dCfiIUlt or any acquiescence III
it.
16.7 Lessor Defatill
In the event that Lessor shall at any time be in default OfthC terms OfthiS Lease and any such
default shall continue for a period of'sixty (60) days after written notice to Lessor, and Lessor shall
not thereafter cure or corrinience to cure the default, Lessee shall have the rigght at any time thereafier
(but III no event shall be obligated) to CUI-C, such deftlUlt fior the account of I....cssor, and Lessor shall
reimburse Lessee for any aniount paid and any expense or contractual liability so incurred U)")O11
UIVOICe.
ARTICLE XV11
ACCESS
17.1 Right of Entry
Lessor and Lessors agents ,hall have the light to enter the Premises at all reasonable finics
upon reasonable prior written notice to the, Lessee (except in [lie case of an emergency when no
notice is required) to examine the same. If Lessee shall not be personally present to open and
permit entry into the Premises at any time, when for any reason an. entry therein shall be necessary
or permissible, Lessor or Lessor's agents inay enter the sarne without in any manner affccting the
obligations and covenant of this Lease. Nothing herein contained, however, shIll be decined or
COnStrUed W in1pOSe Upon Lessor any obligation, responsibility or liability whatsoever, four the care,
maintenance or repair of the Prernises or any part thereof, except as othermise herein specifically
provided.
17.2 Access Agreements
At Lessor's request, Lessee shall enter into an agreement to provide access ("Access
Agreement") to in(lividuals or entities ("Users-) I-oi- events including, but not limited to, the
National Marina MaFlUfilCtUrCr's Association ("NMMA-) International Boat Show, and any other
event permitted by Lessor and approved by the City of Miarni Corninission. Such Access
Agreements shall provide access to and use of portion of tine Premises in the areas indicated III
Exl,iibit I as "A5" and -AW'. Buildings, structures and any other permanent Leasehold
M
�411achmcnt 8 — Form Lcose,,Igrecment
Improvements will not interfere with Structures A5 or A6. Notwithstanding the above, temporary
structures shall be allowed so long as they do not intert'cre with the Boat Show,
ARTICLE XV111
DAMAGE TO LESSEE'S PROPERTY
18.1 t,oss and Da rnage
Unless caused by a negligent act or onfission of Lessor or Lessor's officers, employees, or
agefits, the Lessor shall not be responsible for ,my damage to any property of Lessee (including
without limitation appliances, CClUipulCrit, inachiflery, Stock, inventory, fixtures, funuture,
irnprovernents, displays, decorations, carpeting and pain ting), or of other's located oil file Premises,
nor 1'or the loss of or damage to any property of Lessee, of- of others by theft or otherwise. Lessor
shall not be liable for aany injury or damage to persons or Premises IVS1.1hing ftonf fire, smoke,
explosion, falling plaster, steam, gas, electricity, water, rain, or leaks from any part of the Premises
of- froin the pipes, appliances or plurribirig works or from the roof, street or subsurface or from any
other place by dampness of- by any other cause ot'whatsoevcr mature. Lessor shall not be liable for
any patent or latent defect in the Premises. All property ot'Lessee kept or stored on the Premises
shall be so kept or stored at the risk of Lessee only and Lessee shall hold Lessor harmless from
array and all claims ariSin�, Out of darnage to same, including SUbrogation claims by Lessee's
insurance carriers.
ARTICLE XFX
HOLDING OVER & SUCCESSORS
19.1 Holding Over
L�
In the event I-essec remains in possession of the Premises after the expiration ot'the Lease
Tern, Lessee, at the option of Lessor, shall be deemed to be OCCUI)Ying the Premises as a Lessee
at SLItTerarICC at as monthly rental equal to two (2) times, the Base Refit and the Ticket SL11-Ch,,11-11C 01"
the preceding Lease )"car, payable during the last month of the LeaseTerm hereof, In addition,
Lessee agrees to pay monthly: (a) one -twelfth (PI 2) of` the taxes for the Premises based upon the
total taxes payable l'or the I -ease Year inimediately prior to the Lease Year in which the expiration
OCCUrS, (b) cost of insurance for which Lessee Would have been responsible if this Lease had been
renewed on the sairic terms contained herein; (c) all sales taxes assessed against SUCII increased
rent, and (d) any and all Additional Refit otherwise payable by LCSSCC hereunder. SUCh tenancy
shall be subject to all the other conditions,, provisions au(I obligations of this [.,ease. Lessee's
obligation to pay any rents Or SUMS provided in this Lease shall survive the expiration or earlier
teriniriation of this Lease.
19.2, Successors
All rights and liabilities herein given to, or Imposed upon, the respective Parties hereto
shall extend to and bind the several respective heirs, executors, administrators, successors, and the
assigns of the said Pailics; and if there shall be more than one Lessee, they shall be bound jointly'
and severally by the terms, covenants and agreements herein, Nothing contained in this Lease
45
,41tachnicia 8 — Forrn Lea,sc,11grcentent
steal I in any manner restrict Lessor's right to assign Or C11CUmber this I -ease and, in the event Lessor
sells its the Premise$ and thC purchaser �ISSL,Hrres Lessors obligations and covenants,
s , I I
Lessor shall thereupon be relieved of all further obligations hcreunder.
ARTICLE XX
EQUAI., EN111,OY1"vIEN'r OPPORTUNITIES
20.1 Equal Employment Opportunities
"File Lessee agrees that during the Lease Term; (a) it will not discriminate against any
employee or- applicant for employment bCClUSC Of I-aCC, creed, color, place of birth, religion,
national origin, sex, age, marital status, veteran and disability status cAnd Will take deffintive action
to assure that applicants are employed ,ind that cinployees are treated during employr-rient without
re-ard to race, creed, color, place of birth, religion, national origin, sex, age, marital status, veteran
and disability SUMUS; (b) Post fil COnSpiCUOUS place,,, available to employees and applicants for
employment, notices, the forin ot'which is to be provided by the Lessor, setting Forth provisions
for this nondiscrimination clause- (c) in all solicitations or adveil.isements for employees placed
by or oil behalf of the Lessce shall state that all qualified applicants will receive consideration for
eiriployment without regard to race, creed color or- national origin; and (d) if applicable, to send to
each labor Lifli011 or representative of workers with which the COnStFUCtiO1l contractor, has a
collective bargaining agreement or other* contract or- understanding a notice, the form ol'wllicl'i is
to be provided by the Lessor, advising the union or representative ofthe Lessee's Commitment and
posting copies of the notice in a COnSpiCUOUS places available to ernployees and applicants for -
employment,
20.2 Community Small Business Enterprise
Lessee shall work towards achieving Community Sinall Business Enterprise ("( I SBE")
goals, employing the requirements of the COMMUnity Small Business [Enterpt -iscs set forth ill the
City ofMiami Procurement Ordinance, codified in Chapter 18, Article 111, City Code, as a model;
and shall try to attain, but 110t Marldate, a plan For its achievement, which will strive to provide
equal OPPOI-tUnity ill hiring and promoting flor Miami -Dade County certified CSBE comparrics, the
disabled and veterans. Such plan shall include a set of positive measLircs taken to insure Utilization
of CSBE companies when practicable and nondiscrimination in tile work place as it relates to
hiring, firing, training and pronlotiOu,
20.3 Non -Discrimination
Lessee represents and warrants to the I-essor that it will comply with § 18-188, § 18-189 and
§ 18-190 of the City of Miami Code incorporated herein. Lessee hereby represents and warrants
that it shall not engage in discrirninatory practices and shall not discriminate in connection with
Lessee's use OftlIC Prell-lises on account ofrace, national origin, ancestry, Color, sex, religion, 'agc,
handicap, familial status, marital status or sexual orientation. Further, should the Lessee introduce
or have existing membership RdeS for patrons at the Preirriscs, that it will comply with the non-
discrimination provisions incorporated within § 18-1 8, § 18-189, § 18-190, and §,1 -191 of the City
of Miami Code as incorporated herein by reference.
46
,Mac hnient 8 - 11'evin Lt.,ase '1g1-e071C1'11
ARTICLE XXI
MISCELLANEOUS
21.1 Accord and Satisfaction
No payrricni by Lessee or receipt by Lessor of a lesser amount than the Rent or other
7, Ction of-
amOLInt das
glue specified herein sliall be din SItjSf
ecmed 111y such amounts owed, nor
shall any endorsement or statement on any check remitting partial payment or any letter
accompanying any partU paynIctit be deemed an accord and satisfaction of Lessee's debt. Lessor
may as eclat SUCh check or Payment without prejLIdiCC to Lessor's right to recover the balance of
such Rent or PUNLIC any other remedy provided herein or by haw,
21.2 Public Records
Lessee shall coniplv with Section 119.0701, Florida StatUtCS, including WithOLIt linlitatiOn:
(I ) keep and maintain public records that ordinarily and necessarily would be required by the City
to perform this service; (2) pro Vide the public with access to Public records on the same terms
and conditi(mis as the City WOUld at the cost provided by Chapter 119, Florida StalUte'S. Or (is
otherwise provided by, late; (3) ensure that Public records that are exempt or confidential and
eXCIIII)t trOIII diSCIOSUI-e are not disclosed except as authorized by law; (4) erect all requirements
for retaining public records and transt1cr, at no cost, to the City all public records in its possession
upon tcr-riiination of this Agreement and destroy any duplicate public records that are exempt or
confidenti,,il and exempt frorn, disclosure requirements; and, (5) pro6de all electronically stored
Public records to the City in a format compatible with the City's infimnation technology systems.
In addition to other contract rquircrricrits provided by law, each public agency contract for
services entered into or amended on or aftcr July 1, 2016, MUSt include:
The following statement, In Substantially the following form, identifying the contact
information of the public agency's custodian ofpul-flic records III at least I4 -point boldfaced type:
IF THE CONTRACTOR HAS O1. ES1 I IONS REGARDING THE APPLICATION OF'
CHAPTFIR 119, FLORIDA STATUTES, TO TLIF (ONTRA(.TOR'S DUTY TO PROVIDE
PUBLIC RECORDS, RELATING TO TI --IIS CONTRACT, CONTACT THE C tjs,rODIAN OF
PUBLIC RECORDS A`F_ --(telephone
LlUrriber, e-mail address, and mailing address).
213 Entire Agreement
This Lease and the Exhibits attached hereto and Corming a part thereof as if Fully set f'orth
herein constitute all Of' the COVC11arItS, PrOmises, agreements, conditions and understandings
between Lessor and Lessce concerning the Premises and there are no covenants, promises,
conditions or Lind erstand 1 n gs, either oral or written, between theme other than those set t-oi-tl,i herein.
All representations, either oral or written, made between the Parties shall be deen-Icd to be rrierged
into this Lease. No course of prior dealings between the Parties or their ol"ficer's employees, agents
Im
Allachrnen,l 8 -, Form LeaseAgrecrrient
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 ofpcHbrmance rendered under this or any
prior agreetnent between the Parties or their affiliates sliall not be relevant or admissible to
determine the meaning ofany of the terms of this Lease. Except as herein otlict-wise provided, no
subsequent alteration, change or addition to this Lease shall be binding Upon Lessor or Lessee
UnlCSS reduced to writing and signed by the Parties. Arty aniendments to this Lease 11111st be
approved with the same formalities as were Used in its execution; providing, however, that the City
Manager may administratively execute non -material (i.e. non -substantial) amendments of the
Lease in the exercise of his professional discretion, '"]"his Lease has, been net "at arril'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 provision,,; of this Lease neither party Nvill he deemed disproportionately responsible
I'm draftsmanship.
21.4 Independent Parties
It is understood an(] agreed by the Parties, hereto that this Lease does not create a fiduciary
or other relaticnsliip between the parties, other than as Lessor and Lessee or contracting, parties,
as applicable. Lessor and Lessee are and shall be independent contracting pat -ties and nothing in
this [.,ease is inteiided to make either Party a general or special agent, joint venturer, partner or
employee of the other I*or any PLII-POSC.
21.5 Notices,
Any notice by the Pat -ties required to be given must be served by certified mail retUrn
receipt requested, or by hand delivery, addressed to Lessor or Lessee at:
If to Lessor at: If to Lessee at:
City Manager
City ol'Mlami
444 SW 2nd Avenue, 10th Floor
Miami, Florida 33 130 Attm
With copies to: With a Copy to:
C ity of Miarni City Attorney
Office of City Attorney
444 SW 2nd avenue, 9th Floor
Miami, Florida 33 130 Attn:
City 0 t, Miami
Director, Department of Real l�state and
Asset Management
444 SW 2nd Avenue, 3rd Floor
Miami, Florida 3313M
48
Attachinent 8 — h-orin Lease Agrecivent
All notices given hereunder shall be effcctive and deemed to have been given ul-,)on 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 III 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 ii'my be given by or to any one thereof; and shall
have the sane force and effect as if given to all thereof
21.6 Captions and Secti(m Nnnibers
'I"Ilc captions, section numbers, and article numbers appearing in this Lease are inserted
only Ilor convenience wind III no way define, limit, Construe, or describe the scope or intent of such
sections czar articles of this Lease nor in any way affect this Lease.
21.7 Partial Invalidity
If any term, covenant or condition ofthis Lease or the application thereof"to any person or
circuinstancesshall, to any extent, be deerried invalid or unenforceable by a COUrt with jurisdiction,
tile remainder of` this Lcase shall not be affected thereby and each term, covenant or condition of
this Lease shall be valid arid enforceable to the fullest extent permitted by law.
21.8 Estoppel Certificate
Fach party agrees that it will, at any tinge and ftom tune to time, within tell (l d) bUSi1icSS
days f'ollowing writteti notice by the requesting party specifying that it is given pursuant to, this
section, execute, acknowledge and deliver to the requesting party as statement in writing certifying
that this Lease is unmodified and in full force, and effect (or iftherc have been modifications, that
the same is in full force arid effect and stating the modifications), and the (late to which the Base
Rent, Ticket SUrcIlarge and any other payments chic 11CIVIAnder froal, Lessee have been paid in
advance, if any, and statin_g, whether or not there are defenses or off -'sets claimed by tile certifying
party arid whether or not to the best knowledge ofccrtifying party, the requesting party is ill default
in performance of any, covenant, agrecincilt or condit4-m contained in this Lease, and if so,
specifying each such dCfilUlt 01"WhiCh certifying party may have knowledge.
The failure of the certifying party to execute, acknowle(lge arid deliver to (lie requesting
party a statement in accordance with the provisions of this Section within said ten (10) business
day period, shall constitute an acknowledgment by the certifying party, which may be relied oil by
any person holding or proposing to acquire an interest in the Premises or any party thereof, that,
this Lease is unrilod] Pied and In Full force arid effectnandthat all Rent and clues have bean fully paid
to and including tile respective due dates immediately preceding the (late ol'such notice, and shall
COIlStitUtc, as to any person entitled as aforesaid, to rely LIP011 such statement, a waiver of any
defaults which may exist prior to tile date of such notice. It is agreed that nothing contalned in the
provisions ofthis Section shall constitute waiver by requesting party of any default in payment of
rent or other charges existing as, of the date of such notice and, uiilc,,,s expressly consented to In
writing by reCIL.ICStillg party and, certifying party shall still remain liable for the same. 'I'liere will
49
,41tachnient8 -11*orm Lease.Agrcemew
be a two hundred fifty dollar ($250.00) regulatory fee per Section 1,66.22 1, Florida Statutes for
each request made of Lessor for each Estoppel Certificate Requested, payment in full shall be
made at the time of the request. No certificate shall be issued without payment of the fee.
2L9 Waiver
Failure oil the part of either party to complain of any action or nein-action on the part ofthe
other, no matter how long the sarne may continue, shall never be deenled to be as waiver by Such
party of any edits rights hereLluder. Further, it is covenanted and agreed that no waiver at ally time
of any oaf, the provisions hereol'by either party shall be construed as as waiver of any of the other
provisions hereof', incl that a waiver at any tine of any of the provisions hereof shall not be
COuStI'Lled as it waiver at any subsequent tin Of the sane provisions. The consent or approval to
or ofany action by either party requiring such consent or approval shall not be dcerned to waive
or render Linnecessary such consent or approval to or ofany subsequent similar act by Such Party.
21.10 Tirne is of the Essence
Tine is of the essence with respect to the performance of eN,cry pro%,ision cif this [.case In
NA/hich time of perforrilancc is a factor,
21,11 No Discrimination
It is intended that the Premises shall. be operated in as manner whereby all CUStOMUS,
erriployees, licensees and invitees oaf the Lessee shall have the opportunity to obtain all the goods,
services, acconli-nodations, advantages, tacilities and privileges of the Premises without
discrimination because of race, creed, color, sex, age, nati(..)nal oris -in,, ancestry, handicap or
disability of any kind. J'o that end, Lessee shall not discriminate in the conduct and operation of
its business in the Premises against any person or group of persons because Of the race, creed,
color, sex., age, national origin, ancestry, handicap or disability of Such person Or &q'OLIP of persons.
21.12 C'overning Law, Venue, & Attorney's Fees
It is the intent of the Parties hereto that all questions with, respect to the COuStrUCtion Ofthe
Lease and the rights and the liabilities of the Pat -ties hereto shall be determined in accordance with
the laws of Florida, Additionally, all disputes civil action or legal proceeding arising Out Of Or
relating to this Lease shall be brought ill the COUrts of record in Miami -Dade COUnty. Each party
shall bear their own attorney's fees it,) civil actions betm,,cen them arising out of this Lease except
the prevailing party may be awarded by the court in action for rertioval of the Lessee as provided
by Florida St,,ItLIte .231, as amended or modified.
21.13 Nk'aiverof` Counterclainis
Lessee shall not inipose any permissive counterclairri(s) Im- darnages in as SLIFIlmary
proceeding car other action based oil termination orholcl(.)ver, it being the intent ofthe Partieshereto
that Lessee be strictly limited in such instances tea bringing a separate action ill the Court 01'
appropriate jurisdiction. The foregoing waiver is a material indUCC111CM to Lessor making,
50
"'Itlachnicnt 8 — 1,'elan Lease Agreetnent
executing an(] delivering this Lease and Lessee's waiver of its right to COLInterclaim in any
surni-nary proceeding g or other action bascd oil tern-fination or holdover is done so knowingly',
intelligently and voluntarily.
21.14 Waiver of Jury Trial
Lessor and Lessee hereby waive trial by Pry in atly 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 [-,ease, the relationship of Lessor and Lessee
hereunder, and/or Lessee's use or occupancy of the Prcinises.
21.15 Quiet Enjoyment
Subject to the terms of this Lease, upon the observance by (lie Lessee hereunder ol-'all the
terms, n t fl,
, provisions, covenants and conditions imposed upon the Lessee, the Lessor cove ,na � s to t c
Lessee that Lessee shall peaceably and quietly hold, occupy .and enjoy the Premises 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 Premises ]eased herein, or by
persons with title superior to the Lessor, its SUCCCSsors and assigns,
2 1.16 Surrender of Possession
Upon the expiration or earlier termination cal" the Lease pursuant to the provisions hereof,
the Lessee shall deliver to the Lessor possession of the Premises in good repair and condition,
reasonable wcar and tear excepted.
21.17 Joint and Several Liability,
If two or more individuals, corporations, partnerships or other bUsincss associations (or
any combination of two or more thereof) shall sign this Lease as Lessee, or by virtue of a"I'l-ansfer
assume the rights and obligations offlic Lessee hereunder, the liability of each such Individuals,
corporations, partnerships or other business associations (or any conibination of two or more
thereof) to pay Rent and licr-form all other obligations hereunder shall be deemed to be joint and
several, an(] all notices, payments and agreenicnts given or made by, with, or to any one of such
individuals, corl-,)ora t i oils, partnerships or other business associations shall be deemed as having
been given to all of thein,
21.18 Third Party Beneficiary
Nothing contained in this Lease shall be construed so as to confer upon any other party the
lie
rights of third party beneficiary.
mmnEMFRMMj
Radom IS d naturally OCCUITIng radioactive gas that, when it has ICCI.Inullatod in a building
itistilTicieiitquantities, play pi-esciittic,iltiii!°iskstopersons wiioarc exposed toitoven- tiii,ie. Levels
51
Atlachnient 8 -- Forni Leasco Agrcenimt
of Radon that exceed Federal and State guidelines have becil found in buildings in Florida.
Additional itil'ortriation regarding Radon and Radon testing may be obtaincd from your county
public health unit.
21.20 No lAability for Act of other Party
l-essee shall not sign any contract or application -for any license or permit or do anything
that inay 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 Lis expressly authorized in
writing or agreed to herein, neither Lessor nor Lessee sliall make any express or in-iplicd
agreement, warranties, guarantees 01' representations or incur any debt, or represent that their
relationship is other- than Lessor and Lessee, far the management and operation of the Prerinses"
neither I-essor nor Lessec shall be obligated by or have any liability under any agreernents or
representation's made by the other that are not expressly autliorized in writing, Lessor reserves the
right, at itis sole option, to reffise am agreement for any federal, State or local grants and loans
when the acceptance of sarne by either Lessor or Lessee may impose a hardship upon Lessor or
include obligations which extend beyond the Lease Tern'.
21.21. Riglits, Privileges, and Immunities; Covenants
'T'he Lessee shall have, and the Lessor shall tally cooperate in providing to the Lessee, for
its Use and en ' joyrrient, all rights, privileges and iminuni ties as shall fl-orn tit -tic, to tunic be granted
or afforded by Federal, State or local law to restaurant operators or proprietors.
21.22 Consents
Wherever in this Lease the consent of one party is require(] fear at) act of the other party,
unless otherwise specified, such consent shall not be unreasonably withheld, delayed or conditioned,
The Parties agree that each of the terms, covenants and conditions hereof a,,reed to be
zn
ot)scr\,,,e(.'l or performed by each party shall Constitute C011CUrrent conditions of exchange.
52
'Ithichment 8 — P'orm Letise 4greenicni
IN WITNESS WHEREOF, Lessorand L.essce have CXeCLIted 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
APPROVEDAS TO INSU RANCE
REQUIREMENTS:
m
Ann-Maric Sharpe, Director
Risk Management Department
w
LESSOR:
CITY OF MIAMI, a municipal corporation
of the State of Florida
m
Daniel J. All-onso
City Magager-
AT T ES'T :
ager
APPROVED ASTO L,EGAL FORAJ &
CORRECTNESS:
By:
Victoria M61idez
City Attorney
ATT E ST E D B Y:
By:
Name
Title
Coinpany Name
By:
Name
Title
Company Name
ATTESTED BY:
By:
Name
Title
Company Name
54
,41tachinew 8 -- f-evin lxasc Agreement
LESSEE:
IINSER'I 'LESSEE'S NAME
Narne of ALIthorized Agent
"Fitle
CORPORATE SEAL
GUARANTOR:
By: L11AIZE, NJCOMPAN YJ
Name of Authorized Agent
Title
CORPORATE SEAL,
BY: H)RES ID NT OF USSF, F
Name
President
Altachmew 8 - ForIn Lease 14greemcnt
EXHIBIT A
SIJRVEY/LEGAL, DESCRIPTION OF PREMISES
[lo be insertcdprior to exectilion]
55
litachniew 8 - Form Lease Agreement
EXHIBITB,
ANNUAL,rICKETSURCHARGE STArEMENT.
[/(,,) be inner led to ("Vecillioll]
56
"Ittachment 8 --- Foon Lease Agi-cement
EXIIIBITC,
ANNUAL GROSS REVENUE REPORT
[(o bc, inserieelprior to (�Yccution]
m
Autiehmeni 8'-- Form LcascAgrecinew
EX"IBIT 1)
MONTHLY GROSS -REVENUE REPORT
[i:o be instwiedprior Io cxt"'Culion]
w
,,Ilta,ehment 8 - - For Leose Agreeincrit
EXIIJBITE
LESSEE'S LEASEHOLD IMPROVEMENTS
[lo be insertedpriorto exccution]
59
11MIChIM'171 8 -, Form Lecisc 4greement
EXHIBIT F
PAYMENT & PERFORNIAN.C.E BOND
[to be inscar iedprior to twecution]
ZE
Aitachmew 8 -- Forai LeaseAgi-cetnew
EXHIBITG
CONTRACTOR INSURANCE REQUIREMENTS
[to be inscriedprior to c.vecution]
61
Attachment 8 -- Foral. Lease Agreement
EXHIBIT H
LEASEHOLD INSURANCE REQUIREMENT'S
[to be insertcellw-ior 10 en"cu'll, - oil]
62
Atlachinent 8 ,,Forrn Lease lgrecinenl
EXHIBIT I
NIIANII INTERNATIONAL BOATSHOW LAYOUT
... . .... . ....
[lo be ince all.n-ior toc-.,.Yecu1.ion]
63
""IlMehinert' 8 -- Forin Lease 4greeinew
EXHIBIT J
IN400RING AND DOC KAGEAGRE ENIENT
This Agreement, n-iade and entered into this _day of, 20 --, at Miami, Mianii-Dade COL111ty,
Florida, by and howcen the CITY OF MIAMI, a Florida mUrliCipal corporation (hereinafter
referred to as the "CITY"), and the Vessel Owner (hereinafter rcferred to as either the "VESSEL
OWNER" or the "LESSEE")�, for the use of either (lockage facilities at the marina, pier and slip
specified below, or mooring facilities at the buoy specified below, shall be governed by the
ft)llowing covemints and conditions binding upon the parties:
Vessel Owner's Name:
Vessel Owners Mailing Address:
City: State: Zip:
Vessel Owner's Physical Address-
C"ity: -.-----.-- State: zip:
k'orkTelephone: mme'releplione:
Marina Facility: Pier: Slip:
Nlooring Flacility; Buoy Noor
Vessel Name: Home Port:
State Reg. No. or Fed. Doc No.:
LOA: Bearn: Draft-:
Type: P: —.-- S: MS: Gas: Diesel:
Marine Ins. Co.: Policy
Use of Vessel (eircle one):
Pleasure Commercial 1"ishing Sight-seeing SightveeiiW aSailing Water Taxi
Dockage Fee (not including tax): $
64
Atlachinen[,S— Forni Lease Agreenlent
1. THE VESSEL: The PREMISES as defined herein are for the exclusive use ofthe LESSEE's
vessel identified above (hereinafter the "VI"."SSEL"), No other vessel may Use the assigned slip
clUrilIg the teri-ri of this Agreement, except as specifically provided for herein. The VESSEL
utilizing said slip niust be inroad and seaworthy condition, and be capable ofsafe inaneuvering
and navigation, and of'sclf-propulsion, (self -Propulsion does not include paddle or makeshift sail).
Mica houseboats Or hOUsebarges are permitted at any CITY Marina facility.
2. PURPOSE/PERNUSSIBLE USE: LI SSEI--' shall use the PREMISES defined herein for the
sole purpose o f iiiooring or clacking the V ESS E L. This AgTeernent shall not convey to the Lessee
any right of possession, or any interest in the land, other than a LEASEHOLD interest in the
designated slip location, as identified above. The relationship between the parties shall, at no time
be construed as creating a bailment or COI1StrLICtIVC bailment. Because the dockage fee rate is based
UJ)Ou the type Of use the VESSEL will be engaged in, during the term of the Agreement, the
VESSEL shall only be INC(] In the manner disclosed above.
3. PREINIISES/STORAGE SPA ;E ADJACENT'ro SIAP: The PREMISES Identified by this
Agreement are for either dockage space at the slip identified above and no other, or tor mooring
at the buoy identitied above and no Cather (hereinafter tlic "PREMISES"). The PREMISES do not
include, and the LESSEE shall have no right to titilize any pier, dock, seawall, gangway, ramp,
marina, facility, or any part thereof. Flowever, at the discretion of the Marinas Manager. at rnaritia
facilities only, the LESSEE iniy be granted a revocable -at -will, license to Utilize One dock box,
provided by the CITY, adjacent to the assigned slip, which shall at no time obstruct pedestrian
traffic. IN license for a clock hox is granted,, the LESSEE agrees that: (a) the size and location of
the dock box will be determined by the Marinas Manager; (b) the clock box is being provided by
the CITY gratuitously itud Without consideration, and can be removed by the CITY at any time;
(c) the LESSEE has no right of privacy to the interior space of the dock box, NNvhich n -ay be opened
and inspected at any time, fur any reason, by the Marinas Manager, or his designee, without notice,
4. 'ERIE This Agreement is effective for a period cornn-userate Section 3.1 of the Lease,
commencing on the date of this, Agreement (specified above), unless sooner terminated by the
Z-1
crry or the I..,ESS.EE as provided for liereill,
S. TE RINI INATIO N: 11 -its Agreement pray be terminated by either Party pui-SWIDA to Article XVI
of the I -ease. Upon termination ofthis Agreement, whether caused by lapse of7finic or otherwise,
LESSI,.,.,,E shall at once vacate the PRI."IMISES and remove the VESSEL frorn the assigned I"acility.
Should the LESSEE flail to vacate the premises upon termination, the CITY may utilize any and
all reinedies provided by law, and as Provided herein, to remove the LESSEE and/or the VESSEL
from the PREMISES, illClUdiflg, but not limited to Chapter 82, Florida Statutes, Chapter 83, Part
1, I'loricla Statutes, and the general maritime law,
6. S E CU R 111 1Y DE' SIT: Pursuant to Section 4,2 oftlic Lease, the LESSEE agrees that a non-
interest bearing security deposit equal shall be paid to, and retained by, the CITY during the term
of this Agreement as Security lbr the faithful perforniance by the I..,ESSEE of all the terms and
conditions of this Agreement, and, except as provided for in this Agreement, shall be returned to
the LESSEE at such time as the LESSEE peacefully vacates the PREMISES in accordance with
the terms of this Agreement. Whether or not prior notice has been given to the LESSEE coticcraing
65
."Ittachment 8 - Fw,-in Lc5lti.sc,,,Igi,et..,iiielit
any default oil the part of the LESSEE, the CITY may utilize the security deposit for the
satisfaction, or partial satisfaction, of-, (a) clock ape fees which have become delinquent and/or
delinquent charges atany time after any dockage fees are inore than for-ty-five (45) (lays overdue;
(b) the cost of repairs required as as result of` any darnage or loss of ( I ITY property caUsed by the
LESSEE, the vessel, its crew, or its gLIC'sts or passengers-, (c) the cost of removing tiny personal
property left at any facility after LESSEE vacates the PREMISES; (d) the cost of removing any
CqUipment or 1%XtU1-eS installed by the LESSEE which is not renioved, by the LESSEE prior to
vacation of the PRE.MISES, and restoring the facility to its condition prior to the LESSEE's use of
the PREMISES; and (c) any other reason provided for in this Agreenient. After utilization of all,
or any portion of the security deposit, the CITY may give notice to the LESSEE, who shall have
ten (10) (lays in which to fully replenish the security deposit. Failure of replenish the security
deposit within the time reqUired herein shall cause this Agreement to automatically termillate, in,
no c\,ciit shall the CITY be rC(JUji-ed or obligated to return the security deposit, or any portion.
thereof if the CITN,r institutes legal proceeofings to evict the LESSEE froin the PREMISES.
7. LIQUIDATED DAMAGES: Should LESSEE choose to terminate this Agreement, as provided
lot, herein, prior to the expiration of the 1"crin of Lease, the CITY shall retain the security deposit
as liquidated dan-iages. However, the LESSEE may terminate this Agreement, and be entitled to
a refund of the security deposit, Under any one of the following circurnstances*
(a) by having satisfied the (lockage fees dUC 101- the (fall terra Of the 1-casc,
(b) by presentation to the Marinas Manager of a copy of the original U.S. Government
Department of Defense issued orders transferring or reassigning the LESSEE out ofDadc,
Broward, Monroe ,in(] Palm Beach Counties, and who is also cLin-ently serving as as
uniformed rnernber of a branch of the U,S. Armed l'orces in an active military service',
(c) by a bona fide sale of the VESSEL identified in this A reernei t;
g I
(d) by presentation of a Certificate ot'Death in the case of the LESSEE's demise;
(e) by giving fifteen ( 15) (lays' notice in writing to file Marinas Manager not later than
sixty (60) days Poll awing the effective date of an increase in dockage fees.
8. DOCKAGE FEE/DELINQUENCY CHARGE: L,ESSEE agrees to pay the CITY a 1710111111y
Base Rent and Ticket SUrchargc, PUI-Sliant to Article IN" of the Lease, based upon a thirty (30J) (lay
month, PLUS LIX, payable at the tinic this Agreement is executed, and thereaftcr payable monthly
in advance of the` first day of each month. The LESSEE ftirther agrees that the Base Rent and
Ticket Surcharge shall be considered (UhICIUCIlt if they are not paid in ["Lill on or before tile tenth
10'") of the month. Base Rent and Ticket SUrCharge amounts which are delinquent shall be subject
to a Late Nayinent Fee, PLUSUant to Section 1 6 A of the Lease, which will accrue and be
automatically posted to the LESSEE's account on the eleventh (I It") day of (lie month. Thel3ase
Rent C01IStitUtCS Ian' market valLIC, PLU-SUant to Section 4.1,6 of the I -ease. The Ticket Surcharge
has been established, pursuant to City Code s, 53,-1, During the term of this Agreement, the Base
Rent shall be increased annually, pursuant to Section 4A.2 Of the Lease, Payments shall be illadc
to the CITY pursuant to the instructions set Barth in Section 4.1.5 of the Lease.
9. MARITIME LIEN: The parties agrrec that the mooring or (lockage provided fim- herein is
"'necessary" within the meaning of the Federal Maritime Lien Act', 46 US.C, �S971 975 and that
the CITY, inadditton to relying Up(A1 the credit of the LESSEE, shall retain as maritime lien against
the VESSEL, its appurtenances and contents,,, for all unpaid (lockage fees, delinquency charges,
66
Attachment 8 — Form Lease Agrceinclit
and for any damage caused to any dock, piling or any other property of the CITY. FOR
UNDOCUMENTED VESSELS, PURSUANT TO SECTION 328.17, FLORIDA
STATUTES, IN THE EVENT OF NONPAYMENT OF STORAGE FOR A PERIOD OF
SIX (6) MONTHS, MARINA IS AUTHORIZED TO SELL OWNER'S VESSEL AT A
NONJUDICAL SALE.
10. RENEWAL PROHIBITED 'FRANS IFNI' DOCKAGE FEE: This Agreement may not be
renewed or extended beyond the term specified herein. However, after the expiration of this
Agreement, with the prior consent of the CITY, which consent may be withheld for any reason
deemed to be in the best interest of the CITY, the LESSEE may enter into a new Lease under
whatever terms and conditions are being offered by the CITY at that time. After the expiration of
this Agreement, if a new Lease is not entered into for any reason, and the LESSEE nevertheless
continues to use the PREMISES with or without the consent of the CITY, the VESSEL shall be
placed on a transient dockage fee schedule, which is the highest dockage fee charged by the CITY,
or shall be charged Base Rent -- the amount which was incurred during the last year the Lease was
in effect, plus a Base Rent Increase (See Section 4.1.2) — whichever is higher.
IL NO WARRANTIES: LESSEE fully understands and agrees that the CITY does not Warrant
the condition of the slips, docks, piers, gangways, ramps, buoys, mooring gear or any other parts
of the marina facilities or mooring facilities to be safe for docking, berthing or mooring vessels,
411�
or for accepting and discharging passengers, and assumes no responsibility as a wharfinger.
12. INSURANCE, INDEMNIFICATION AND RELEASE:
(a) RELEASE: LESSEE shall use the PREMISES at its sole risk and in a manner so as
not to endanger any person or property, and the CITY shall not be liable for the care,
protection or security of the VESSEL, its appurtenances, tackle, gear or contents, or for
any loss or dan-iage of any kind or nature due to fire, theft, vandalism, collision, equipment
fildUre, windstorni, hurricane, rains, or other casualty or calamity, EVEN IFSUCII LOSS
OR DAMAGE IS C4[TVED BY NEGLIGENCE OF THE CITY, ITS AGENTS,
SERVANTS, EMPLOYEES OR INDEPENDENT CONTRACTOR, , and the CITY is
hereby expressly released from all such liability.
(b) INDEMNIFICATION: LESSEE further agrees to protect, indemnify, hold harmless
and defend the CITY frorn any and all liability, claims or expense, by reason of any damage
to property, or injury or death to any person (INCLUDING TIIAT CAUSED BY OR
RESULTING" FROM TIIE NEGLIGENCE OF T11E CITY, ITSAGENTS, SER VANTS
EMPLOYEES, OR INDEPENDENT CONTRA CTOR.'V), transpiring or occurring in or
about the PREMISES ]eased by the CITY to the LESSEE herein, or any liability sustained
during the operation of the VESSEL or LESSEE's business, if any.
(c) INSURANCE:
(1) The LESSEE shall Secure at its own expense, and furnish to the CITY, prior to
the commencement of the term of this Agreement, marine and other insurance
policies providing hull coverage (up to the full value of the VESSEL), protection
and indemnity coverage (in an amount not less than $1,000,000.00, which shall
include, but not be limited to, liability or property damage, loss of life, bodily injury
or illness of any crew or volunteer crew or third party, collision towers liability,
property damage to docks, wharves, piers, buoys, bridges, cables, and other fixed
67
Altachmeril 8 — fw,rn Lease z4grecivent
or movable property and loss or dainage to other vessels not caused by collision),
and, in the case of commercial, sight-seeing, sailing sight-seeing, or water taxi
vessels, cornnicrcial liability (with Iii-i'lits of not less than $1,000,000.00 per
occurrence, combined single limit, for bodily injury, personal in ' jury, and property
darnage liability NvIth a general agg egate of not less than S2,000,000.(1C)).
,r
(2) The required insurance coverages shall be issued by companies rated A:X or
better per AM Bests' Key Rating Guide (latest edition), whom are duly authorized
to transact insurance business in the State Of Florida.
(3) Said policies shall be in full force and effect during all periods offirrie during
which the VESSEL is using the assigned slip or mooring bU0y.
(4) The policies shall provide that no cancellation, termination, arriendinein or
modification reducing the extent ofinsurance provided under the policy, once the
policies have been filed with the CITY, shall be effective if such arriendirierit,
rt-todif cation. or cancellation will leave the LESSEE or the VESSEL \VithOUt
insurance of the type and amount required under this Agreement,
(5) All polices shall specifically designate "the CITY OF MIAMI, its officers,
agents, servants and employees," as additional insureds.
(6) The LESSEE shall furnish the CITY with original certificates of insurance
evidencing the required coverages to be in f6rce on the date of this Agreement, and
renewal certificates of insurance, or such similar evidence, if the covet -age has an
expiration or renewal (late occurring LlUliflg the M-111 of this Agreement.
(7) The insurance shall provide for sixty (60) days prior written notice to be given
to the CITY in the event coverage is substantially changed, canceled, or is not
renewed.
(5) The insurance shall provide that the 111SUrersliall waive its rights 0("SUbrogation
against "the CITY OF MIAMI, its officers, agents, servants and employees."
(9) "I'lie Ll..,,SSEE expressly understands in(] agrees that any insurance tnaintained
by the CITY ITY shall apply in excess of, and not contribute with, insurance provided
by [lie LESSEE under this AgI-Cernent,
(10) The LESSEE, expressly understands and agrees that, to the extent ()f any
deductible assumed by the LESSEE under any policy of insurance required herein
(which shall not exceed the amount Of S1,00U0 Per OCCUITCFICC), the LESSEE is
self-insured, and, as such, the LESSEE aSSLjJjrjeS all of the responsibilities and
obligations to "the CITY 01 MIA its officers, agents, servants, and employees"
which the insurer would otherwise bear under the terms of this, Agreement had the
LESSEE elected no deductible.
( I I) The LESSEE shall not use the PREMISES leased Linder this Agreement Until
all required insurances are in full force and effect and proof thereof satisfactory to
the CITY has been submitted to the CITY, Should the insurance required of the
LESSEE lapse during the tel -111 Of this Agreement, the LESSEE shall inirric(liately
remove the VESSEL, fi-orri, and vacate the PREMISES,
( 12) The LESSEE's indemnity obligation to the CIT)," as, described if] this
Agreement is Unlimited and shall not be restricted by, or to, the coverages provided
Ery the insurances require(] to be furnished by the LESSEE to the CITY herein.
68
,41tachnient 8 .-- 17orin lxeise Agreemera
13. DUTYTC) UP -DATE INFORMATION:The L..ESSEE shall firrrncdi�ately notify the Marinas
Manager in writing of any change in the information furnished by L.,ESSEE in this Agreement,
including infori-riation which WOUld trigger as termination of this Agreement, including but not
limited to a change in the ownership of the VESSEL -
14. COMPLIANCE WITH LAWS: LESSEE agrees that in its USC Of the PREMISES, it shall
comply with call Federal and State laws and County and City Ordinances pertaining to Waterways,
Marinas, Vessels and Boating,
15. CONIPLIANCE WITH MARINA FACILITIES RULES, AND REGULATIONS:
LESSEE agrees that in its use Of the PREMISES, it shall comply kvith all CITY promulgated
Marina I"acilities Rules and RCgUlations (which are specifically made a part hereof by reference).
The CITY reserves the right to make such otlicrand further reasonable rLdc-s, and regulations as in
its judgment may I`roiri time to time be needed Lor the sat'ety and care of the PREMISES, and any,
such other rUICS and regulations shall be binding upon the LESSf-T with the same force and effect
as if they had been inserted here at the time of execution,
16. FU BLICADDRESS AND SOUND SYSTEMS: While within the waters ofa marina L'acility
or marina basin, I,,ESSET, and catch pci-sons in the employ of or a guest of the LESSEE, is
expressly forbidden to use public address systems Or other mechanical or hand -operated voice or
powcr operated megaphones in solicitation of'business or for ctitertainn-tent purposes, including
music reprOdUCtiOnS Or Other I-epl-OCILICtiCHIS. LESSEE shall u(')( use Or CIIII)IOY persons to "bark"
orsollelt business either on the dock area or from aboard the VESSEL or fron-1 any area or I ocati011
in the vicinity of the marina or while Underway on the VESSEL while it is within the niarma or its
basin.
17. FAILURE OF UTILITIES: Although water and electric utilities are.. provided at no cost to
sorne slips at CITY i-narina facilities, LESSEE acknowledges that it has no Vested rights under this
Agreement for the future or continued provision of water and electric utility Serviccs.
Consequently, the parties agree that the CITY will not be liable for any interruption, termination
Or fililUre of utility scrvi ce,s on the PREMISES,
18. QUIET ENJOYINIENT OF OTHER LESSEES AND/OR LICENSEES: The LESSEF
agrees to peacefully use the dockage space assigned herein and at all times not interfere with the
quite enjoyment of"other marina lessees and/or licensees.
19. PROHIBITED ACTS: J'he I..ESSI,',-E shall not suffer, nor allow to be suflered, either
individually Or in conjunction with other persons, or as part ofan organization of persons:
(a) any unlawful act;
(b) any act which may have the, effect, in the sole judgment of the CITY, as disturbing the
peace, disturbing, inconveniencing or subjecting to physical jeopardy the PREMISES, Or
other vessels docked or moored at the marina facility or mooring facility; or,
(c) any act which will impede, disrupt or injure the orderly operation of the marina l"acility
or mooring facility or any portion of it, including but not limited to marina management or
marina revenues.
69
,Vtachinenl 8 — Forin Lease Agi-cenient
20. NO ASSIGNMENTS OR SUB -LEASES: LESSEE shall not assign, sub -lease, transfer,
mortgage, or otherwise dispose of or encumber this lease or any rights granted herein except as
permitted in Article X of this Lease,
21. RESIDENCY: The VESSEL shall not be rented to anyone for the purpose Of Using it as a
residence. Residency privileges shall be granted or withheld in writing in the sole discretion of
the Marinas Manager. Residency privileges shall be restricted to the LESSEE and his/her
immediate family, paid crew, and temporary bona fide guests. A bona fide guest is a person whose
temporary residency aboard the VESSEL does not exceed fifteen (15) days, and who provides no
consideration to the LESSEE for his/her temporary residence aboard the VESSEL.
22. NO WAIVER. Any waiver of any breach of covenants or conditions contained herein to be
kept and performed by LESSEE, shall not be deemed or considered as a continuing waiver and
shall not operate to bar or prevent the CITY frorn proceeding under the provisions of this
Agreement as a result of a subsequent breach. Unless the CITY was provided prior notice in
writing of a breach of covenant or condition the CITY shall not be deemed to have waived any
breach of covenant or condition of the Agreement.
23. BREACH/CURE PERIOD/AUTOMATIC TERMINATION: Upon the breach of any
covenant or condition contained herein, the CITY may give written notice to the LESSEE of the
breach. If notified, LESSEE agrees that it will remedy the breach within ten (10) (lays after notice.
If the breach of any covenant or condition is not cured within the ten (10) day period, this
Agreement shall automatically terminate and the LESSEE agrees to immediately vacate the
PREMISES. Any security deposit or unused portion of dockage fees shall be retained by the CITY
as liquidated damages. In the event legal action is commenced by the CITY to enforce the
covenants of this Agreement, to the extent allowed by law, LESSEE waives its right to jury trial
or to assert pern-iissive counterclaims,
24. ENFORCEMENT COSTS/ATTORNEYS FEES: LESSEE shall pay and discharge all
costs, expenses, and attorney's fees which may be incurred by the CITY in enforcing the covenants
of this Agreement.
25. REMEDIES CUMULATIVE: The remedies herein created are cumulative, and the use of
one remedy shall not be taken to exclude or waive the right to use any other remedy.
26. JOINT AND SEVERAL OBLIGATION: In the event that this lease is granted to more than
one individual or other legal entity (or to any combination), then and in that event, each and every
obligation or undertaking to be performed by LESSEE under this Agreement shall be the joint and
Z-�
several obligation of each such individual or other legal entity.
27. RIGHT TO MOVE VESSEL: In addition to all other powers and authority retained by the
CITY and granted bythe LESSEE, the CITY may at any time in its absolute discretion, and without
notice, require the LESSEE to move the VESSEL, from its assigned mooring or slip to another
mooring or slip within the same facility or a different facility, and, if the LESSEE falls to comply,
the CITY shall have the right to move the VESSEL itself.
70
Attachnwnt 8 — Forin Lease Agreement.
28. PROOF OF OWNERSHIP: Prior to signing this Agreement, or upon the CITY's demand at
any later tirrie, the LESSEE shall furnish the Marinas Manager for review, proof of ownership of
the VESSEL, '"Phis proof shall consist of a certified copy of either a State -Registered Title to the
VESSEL or documentation by the U.S. Coast Guard or Foreign Power Registration as the case
may be.
29. ACCESS TO SLIPS: The CITY, its representatives and employees, shall at all times have
free access to the PREMISES for purposes necessary, incidental to, or connected with, the
perforniance of its obligations hereunder, or in the exercise of the CITY's governmental functions.
30. EXAMINATION OF PREMISES: LESSEE agrees that it has examined and inspected the
PREMISES to its satisfaction prior to the execution of this Agi-cernent and is satisfied with the
physical condition of the PREMISES and further agrees that the PREMISES are in a safe condition
and in good repair.
31. ALTERATION OR NIODIFICATION OF PREMISES: Except subject to Articled V of
the Lease, LESSEE shall not remove, relocate, alter or modify any existing portion of the
PREMISE, nor attach, affix, or permit to be attached or affixed, upon the PREMISES or if so
attached or affixed, relocate, replace, alter or modify, , without the prior written consent of the
CITY, any flags, placards, signs, poles, wires, aerial antennae, ladders, stairs, ramps, vending
machines, ticket or concession booths, or any other structures, improvements or fixtures.
32. DAMAGE OR DESTRUCTION TO PREMISES: In the event that the PREMISES, or any
portion thereof, shall be destroyed or damaged by fire, wind, water or other casualty so as to
prevent the use of the PREMISES for the purposes and during the periods specified herein, or the
PREMISES cannot be used because of strikes, acts of God, or other causes beyond the control of
the CITY, then Article XIII shall control, and the LESSEE waives any claim against the CITY for
damages. The CITY shall not be obligated to repair or rebuild the PREMISES, but may elect in
its sole discretion to do so.
33. DUTY TO MAINTAIN PREMISES IN GOOD REPAIR: The I..,ESSEE, at its own expense,
shall keep the PREMISES in good repair and agrees to vacate the PREMISES at the end of the
term of this Agreement in the same condition as at the beginning of the term, ordinary wear and
use being excepted, and LESSEE shall pay for all damages occasioned by its use.
34. NO PARTNERSHIP OR JOINT VENTURE WITH CITY: The LESSEE and the CITY
agree that nothing contained in this Agreement is intended, or shall be construed as creating or
establishing a partnership orjoint venture between the parties herein or as designating the LESSEE
t)
as the agent or representative of the CITY for any purpose whatsoever.
35. LESSEE'S DUTY TO NOTIFY CITY OF VESSEL'S ABSENCFjci,rY'S RIGITI I TO
RE -LEASE UNOCCUPIED SLIPS,: The LESSEE hereby agrees that if the VESSEL is absent
from the PREMISES for a period of seventy-two (72) hours or more, the LESSEE shall notify the
Docki-naster's Office in advance of the dates of departure and return and shall confirm the return
date forty-eight (48) hours prior to return. The LESSEE acknowledges the CITY's right, as part
of the consideration to the CITY under this Agreement, to re -use said slip on a temporary basis to
71
Attachinew 8 — 1"orin Leeiso-., A(;,reeirient
transient vessels for compensation when the VESSEL is to be absent for sev,enty-t'w'o (72) hours
or more. LESSEE farther recognizes that it has no right to any set-offor credit for the dockage
J:'ees, due the CITY Under this Agreement when the LESSEE's, slip or mooring is teniporarily re-
used to dock transient vessels during the absence of the VESSEL as provided liar hercirl.
3,6. SUBORDINATION TO GOVERNMENT AGREEMENTS: LESSEE acknowledges and
agrees that this Agreement is sul. jest to and SUbOr(finate to any existing or future agreements of
any kind between the CITY and any other public agency of the United States Government, state,
any county, authority, or any official, board, corninission or other body politic of the state or federal
government, now or hereafter created, whether specifically mentioned here or not, pertaining to
the development, construction, Olicnition or maintenance of the Miami River, Biscayne Bay.,
marina basins, or their- adjoining seawalls and dock areas. The CITY reserves the right to further
develop, improve, maintain, modify and repair the seawalls and dockareas, the rocidways and
connected walkways, at an), tirric regardless ofthe w1eNvs of the LESSEE and without interference
or hindrance by the LESSEE.
37. GOVERNING LAW: This Agreement shall be deemed to have becri made in and shall be
construed in accordance with the law of the State of Florida,
38. INTEGRATION CLAUSE. This Agreerrien( constitutes the sole, coniplctc and only
Agreement between the parties hercto. Any prior agreements, oral understandings, promises,
negotiations. or representations, not expressly set forth in this Agreement, shall ],)Live no force or
Z7 Z:�
effect, This Agreement shall not be SL1b.jCCt to Parole evidence.
39. SEVERABILITY CLAUSE: The Unent"orecability, invalidity or illegality of` any provision
of this Agreement shall not render the Other provisions Unenforceable, invalid or illegal.
40, CHANGES TO THIS PRINTED FORNI- Any typed or hand-written changes to this printed
f'orni Mooring and Dockage Agreement, which are not initialed by the Marinas Manager, shall be
void and of no force or effect,
41. NOTICES: All notices to the CITY by the LESSEE Under this Agrecryient shall be sent by
certified mall, return receipt requested, to the CITY OF MIAMI, Attn.: Marinas Manager, Difirler
Key Marina, 3400 Pan American Drive, Miami, Florida 33133, in addition to the instructions set
fbi-th in Section 21.5 of the Lease. Notices to the CITY shall be decined effective upon, actual
receipt, the return receipt constituting evidence thereof, All notices to the LESSEE by the CITY
Under this Agreement shall be sent by certified mail, return receipt requested, to the LESSEE's
mailing ,id(fressproviclecibythe l,ESSEE ,�ibo%,,e, Notice to the LESSEE shall bedcenicd effective
upon posting whether or not the LESSEE signs the return receipt, or delivery is otherwise
incomplete; the postmark on the sender's receipt for certified mail shall WnStittr[C C011CILISive
cvidencc of posting/receipt by LESSEE,
42. AUTHORITY TO EXECUTE THIS AGREEMENT: The only representative oftlic CITY
authorized to execute this Agreement is the City Manager. The person signing below on behalf of
the LESSEE does hereby certify that the description of the VESSEL is correct and that he/she/it is
72
Attachment 8—Form Lease Agreeinent
the lawful owner of the VESSEL and that he/she/it is authorized to subject the VESSEL to the
Provisions of this Agreement.
43. LESSEE'S, RESPONSIBILITIES IN THE EVENT OF A TROPICAL STORM OR
HURRICANE: CITY marinas are not safe locations for vessels during tropical storms or
hurricanes, and the CITY believes significant damage to vessels and to the marinas will likely
occur in a iril-1-jor storm if a vesselremains at the marina. LESSEE agrees that it is the LESSEE's
sole responsibility to be aware of the threat or approach of a tropical storm or hurricane. In the
event of an impending tropical storm or the issuance of a hurricane watch or warning, the LESSEE
may choose to leave LESSEE's VESSEL in the marina slip provided for under this Agreernent.
LESSEE agrees, however, to follow all reasonable directions of the Marinas Manager or the
Marinas Manager's designee as to the kind of cleats, ropes, Fenders and other measures that must
be used on vessels as a condition. of use of the marina as provided under Section 327.59, Florida
Statutes. LESSEE specifically and knowingly assumes the risk and agrees to be solely liable and
responsible for any damages caused to LESSEE's VESSEL, to the marina slips, docks, and piers,
to other vessels, and to any other property damaged by the LESSEE's VESSEL, or as a result Of
the VESSEL's presence, including any damages caused by, or as a result of, actions taken by the
CITY to protect the marina, during a tropical storm or hurricane. LESSEE further agrees not to
demand froni, nor to sue, the CITY for any damages whatsoever as a result of any vessel being
allowed to berth at the marina, including the LESSEE's VESSEL, during Such storms.
73
0
Todd B. Hannon
City Clerk
APPROVED AS 'I INSURANCE
REQUIREMENTS:
m
Ann -Marie Sharpe, Director
[Zisk Managernent Department
74
'4tlachment 8 — For Lease Agreeiuel7t
CITY OF MIAMI, a 111LInicipal corporation
of the State of Florida
m
Daniel J. Alfonso
City Manager
APPROVED AS 'T LEGAL FORM &
CORRECTNESS:
By:
Victoria M6ndez
City Attorney
.1111a.ehinent 8 .-- Forin Lease Agrecincnt
LESSEE:
[INSERT LESSEE'S NAME]
Name of Authorized Agent
Title
L74 0 0 IRIN 3 UI Ity
By: CORPORATESEAL
N arne
Title
Coiripany Name
By:
Name
'Title
Company Name
GUARANTOR:
By: LPARENT COMPANYJ
ATTESTED BY:
By-.
Name
Title
Company Name
By: PRESIDENT OF LESSEEI
75
Name of Authorized Agent
Title
CORPORATE SEAL
Nan -ie
President
Altachnicni 8 - h7(, rni Lease,Ig�I.eclrl cni!
EXHIBIT K
MARINA FACILITIES RUI.,ES AND REGULATIONS
1I`he following RULES AND, REGULATION are established by the City Mau<.IgCr under the
authority of'Scction 50-222 of the (111TYCode and shall be strictly observed and complied with by
all LESSEES of'VESSELS at CITY Mannas:
1. SLIP ASSIGNMENTS: Dockage, anchorage or mooring assignments will be made by the
Dockmaster. No changes in assign gent will be made without the Dockniaster's prior permission
and onlyatler a new Mooring and Dockage Agreement is executed by the LESSEE and the CITY.
2. 0R.D4..`R[.1NESS OF PIERS: It shall be the responsibility of LESSEE to keef) the pier areas
adjacent to then- VESSELS in an orderly, clean, and safe condition. Piers will be kept clear of all
gear, including dinghies and skiffs. Private stowage facilities inay not be used on walkways,
P111-SUal"It tri City Code Section 50; -236,
3. S"I"OWAGE OF SMALL CRAFT: Miter registration and approval by the t)ookmaster, a single
:small craft owned by the LESSEE and normally st(..)\vcd aboard the VESSEL may, on no more
than an occasional basis, be tied in the same slip without charge. Said siriall craft niay never
Protrude beyond the limits ofthe slip,
4. MOTORIZED VEHICLES: No inotorized vehicles of any kind shall be ridden, driven, stored,
or otherwise permitted on a CITY pier, as per City ('.'ode Section 50-227.
5. DOCK BOXES: Dock boxes, it"provided by the CITY, are to be emptied and left unlocked upon
iSSUMICC of hurricane warnings by the National Hurricane Center, or upon tennination of the
Mooring and Dockage Agreement. Other private storage facilities shall not be used on (1.TFY piers.
6, VESSE',LS J'O BE MAINTAINED IN STATE OF READINESS: All LESSEl"'S must maintain.
their VESSELS in a state of constant readiness for niovernent in case ofenici-gencies, such as a
fire. LESSEES of VESSELS, whose propulsion machinery is inoperative fior a period in excess
of forty-eight (48) hours, must notify the Dockmaster immediately and inf'onri the same of' the
action being taken to place the VESSEL's inachincry in operation as soon as possible. Tile
Dockmaster array temporarily reassign or relocate these VESSELS.
7, UNSIGHTLY VESSELS: It shall be the responsibility of LESSEES to keep their VESSEL in
such condition that they do not become unsightly, dilapidated, or reflect unfavorably on the
appearance and standards of CITY marina facilities or mooring facilities. The clocks of VESSELS
docked at CITY facilities shall be kept free rind clear of debris, bottles, paper, trash, or other
unsightly material at all times, as per City Code Section 50-235.
S. REPAIRING, FITTING -OUT, ET( OF VESSELS: Major repairs, Outfitting or refitting of
VESSELS at ITY marina facilities is prohibited. Minor repairs, mechanical ad!JUStrnentS,
electrical work, and touch Lip painting are permitted only for VESSELS regularly docked at the
marina facility. Disk sanding and spray painting are prohibited. The Dockmaster rriu.st be
consulted prior to commencing any work. No work may be undertaken which nay result in
76
,4michinew 8 1"orm. Le eisc 11grecrncni
darnage, scarring, or staining the surface of the, piers, docks, boxes, or which niay otherwise
obstruct the flow or passage oftionrial vehicular and pedestrian traffic, as per City Code Section
50-240.
9. FLAME -PRODUCING EQUIPMENT: The use ol"charcoal burners, gas torches, bUrIling OF
welding equipment, or any open flarne-producing equipment, except within an enclosed VESSEL
nd at the LESSEE's own risk (i.e., cook stoves, lamps, lanterns), is prohibited, as per City ('odc
Section 50-239.
10. REFUELINU Refueling within thernarina, except at designated and approved frielingstations
is prol-ribitccl. L`ucl shall be stored only in tanks integral to the VESSEL. There shall be no storage
of any flarninable SUbSt,111CLs on or near the piers or bulkhead, as per City Code Section 50-24 1, ,
11, NOISE. LESSEES Shall USC discretion in the use ()fTV sets, musical instruments, loud hailers,
radios, and any other sound equipment so as riot tea create a nuisance or to disturb (lic quict
enjoynicin ol'other LESSEES, licensees, or users of the marinas, and their guests. Rigging shall
be secured it) such a manner as to prevent noise.
12, GARBAGE, TRASH, REI-JJSE AND WASTE. OIL, No refuse - solid or Ii(IU1d - Shall Ile
discharged overboard. All garbage and trash shall be placed in receptacles provided. No effluent
Irom toilets or heads, nor oil fironi bilges, shall be discharged overboard. SUMPS are located
throughout: 1110 Marina for the disposal of waste oil, Only Coast Guard a1')pr0VCd sanitation devices
Will be acceptable. Sc e City Code Sections 50-237 & 50-238.
1 1, SIMMMING, DIVING AND 1�,'ISHINGSwimming and diving for recreation or pleaSUre, and
fishing in marina water, is prohibited, as per City Code Section 50-228.
14. RESTRI( , "HON ON PETS: Dorricstic pets arc permitted, provide(] they are kept ]cashed when
not confined aboard, do not disturb other LESSEES, USCI -S of the Marina, or their guests, and do
riot otherwise create a nuisance. LESSEE, whose facts are not controlled iii accordance with these
restrictions, shall be required to remove their VESSEL, from the Cl-l"i" marina. See City Code
Section 50-234.
15. LAUNDRY : Laundry of any type, or any item of` personal property ot'an unsightly nature,
shall riot be hurig-out or spread -out to dry or an- in public view on any VESSELS or pier. Sce City
Code Section 50-235.
16, ADVEIZ11SING AND SOI-JCITING: No advertising or soliciting will be permitted on any
VESSEL berthed at non-commercial piers. However, any VESSEL., may display a sinall (not to
exceed I S(lU,'AJ-C foot,), "For SaIc" sign. The CITY f1acility address shall not be used f6r business
purposes. .See City Code Sections 50-226 & 50-235,
17. WATER AND ELECTRIC' USAGE: Water siphons will not be used except in case of all
emergency. Fresh water shall not be Used as as coolant ('or air conditioning or other machinery.
Air conditioners shall be turned off on an unattended VESSEL. Water-SUpply hoses ofunatterided
VESSELS shall be disconnected at the dock and stored aboard. It is UnIaWfill for either the
0
Altachnient 8 - horni Lease Alrllreenienf
LESSEE or any other person to use either the electrical power or fresh water for any pUrPOSC other
than to supply power and water to the VESSEL officially assigned to that berth by the Mooring
and Dockage Agreement and the Lease oil file at the Dockmaster's office. No addition, alteration,
or modification shall be macle to the electrical or water supply or any other Utility service that may
be furnished by the CITY. See City Code Section 50-230.
18, VESSEL CHECK-OUT PROCEDURE: I_ESSEES checking Out Of the rnarinas shalf report to
the Dockinaster's Officer and pay their accounts in Full prior to removing their VESSEL from the
marina, Check-out tin -ie shall be 3:00 pane, A VESSEI.., occupying a berth after 3:00 p,rn, shall be
charged dockage for another day. `ice City Code Section 5-230.
19, RFMOVAL OF VESSELS WITH DEI,INOUENT CHARGES P[WHIBITED: It is prohibited
for the LESSEE: I to remove the Vf:ISSEL froin the CITY facility without first making payment of
all dockage fees and accrued delimluent charges. Sh'l-'City Code Section 5(1-341
20, BIL("iE PUMPS: All VESSFLS must have adequate, permanently installed, electrical or
inechanical bilge PLIMPS in constant state cal` readiness. Switches Should be labeled and installed
in readily discernible locations.
?1. QUIET ENJOYMENT OF OTI IERS: There shall be no disorder, depredations, or disorderly
COF)dUct by a LESSEE, LESSEE's crew or guests that might Injure a person, cause damage to
property, disrupt the order of the marina facility or mooring facility, or otherwise interfiere with
the quiet enjoyment of other I...,ESSEES and/or LISCrS of the Marina.
22. ACCESS TO FACILITIES: For security rand safety reasons, the use of or access to piers, docks,
or berthfiiv areas is restricted to LESSEES, LESSEE's crew, and guests. Access by any othci�
Z7
perS011 I-OClUires the approval of the Dockmaster.
23. DISCONNECTION TION OF UTILITY SERVICES: The LESSEE hereby understands and agrees
that the (., , IT),' may cancel and shutoff water and electric utility services, or odiclivise diSCOntiriLle
the provision ofsaid services for any reason whatsoever, including if the I..,ESSEE is, delinqUICIlt in
LESSEE's payinents due to the CITY or is otherwise in default Under any provisioti ofthe Mooring
and Dockage Agreement and/or lease, provided, however, that fifteen ( 15) (lays prior ti,otice of
such (lisconticction shall be given to the LESSEE.
I ACWNOWL EDGE THAT I HAVE REA[) AND UNDERS,rOOD THE FOREGOING
RLJI,ES AND REGULATIONS AND AGREE TO COMPLY WI` 11 SAME AS A
CONDI'TION OF USING TILE, MARINA FACILITIES OR MOORING FACILITIES.
78
ATTEST:
B,y:
"I"odd B. Hannon
City Clerk
APPROVED AS]"O.INSURANCE
REQUIREMENTS:
Ann-Marle Sharpe, Utrector
Risk Mailagenient Departnient
79
Attachme),71 8 lonn l,ease Agreeniew
LESSOR:
CITY OF MIAMI, a nninicipal coiporation
of the State cel' lorlda
By:
Daniel J, Alfonso
City Manager
APPROVED AS TO LEGAL FORM &
CORRECTNESS:
0
Victoria M611(icz
City Attorney
ATTESTED BY:
By:
Name
Title
Cornpa.ny Name
WE
Name
Title
Company Name
By: [LIARENT C QMPAN�Yj
ATTESTED BY:
By:
N arne
. . . ......... —
Title
Cryo napany Maw
By: . PRESIDENT OF LESSEF]
80
Autichoient 8 - For Lease,4grecineni
LESSEE:
LLNI-' f.,'RT 1, E S S E E.S N A M El
Name of Authorized Agent
Title
CORPORATE SEAL
GUARANTOR:
Name of Authorized Agent
Title
CORPORATE SEAL
Name
President