HomeMy WebLinkAboutO-2004-031-Harbour Towne LeaseORDINANCE NO. 2004-031
AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DANIA
BEACH, FLORIDA, APPROVING EXECUTION OF A LEASE AGREEMENT
AND RELATED DOCUMENTS BETWEEN THE CITY AND HARBOUR
TOWNE ASSOCIATES, A CALIFORNIA GENERAL PARTNERSHIP
PERTAINING TO PROPERTY OWNED BY THE CITY AND COMMONLY
KNOWN AS THE HARBOUR TOWNE MARINA PROPERTY;
AUTHORIZING AND DIRECTING THE EXECUTION OF THE LEASE BY
THE APPROPRIATE CITY OFFICIALS; PROVIDING FOR CONFLICTS;
PROVIDING FOR SEVERABILITY; FURTHER, PROVIDING FOR AN
EFFECTIVE DATE.
BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF DANIA
BEACH, FLORIDA:
Section 1. That that certain Lease Agreement and related documents between the
City of Dania Beach, as Landlord, and Harbour Towne Associates, a California general
partnership, as the Tenant, pertaining to a property owned by the City and commonly known as
the Harbour Towne Marina Property, unexecuted copies of which Lease and documents are
attached and made a part of this ordinance as Exhibit "A", is approved.
Section 2. That the proper City Officials are authorized and directed to execute the
Lease Agreement and related documents.
Section 3. That the City Manager and City Attorney are authorized to make minor
revisions to such Lease Agreement and related documents as are deemed necessary and proper
for the best interests of the City. Such Lease Agreement and related documents shall not be
deemed accepted by the City unless and until the City has completed its execution of them.
Section 4. If any section, clause, sentence or phrase of this ordinance is for any
reason held invalid or unconstitutional by a court of competent jurisdiction, the holding shall not
affect the validity of the remaining portions of this ordinance.
Section 5. All ordinances or parts of ordinances in conflict with the provisions of this
ordinance are repealed.
0 ORDINANCE NO. 2004-031
Section 6. This ordinance shall take effect immediately at the time of its passage.
PASSED AND ADOPTED on first reading on September 14, 2004.
PASSED AND ADOPTED on second reading on October 12, 2004.
-ATTEST:
ISE STILSON
-LOU
�_CITY CLERK
C.K. WtLYW
MAYOR — COMMISSIONER
ROLL CALL:
COMMISSIONER ANTON - YES
COMMISSIONER CHUNN - YES
COMMISSIONER FLURY - YES
VICE -MAYOR MIKES - YES
MAYOR MCELYEA - YES
APPROVED AS TO FORM AND CORRECTNESS:
BY:
TH6M4 jJAMBRO
CITY,?�TTORNEY
2 ORDINANCE NO. 2004-031
CITY OF DANIA BEACH a,
TO: Mayor and Commissioners
Ivan Pato, City Manager
Patty Varney, Finance Director
FROM: Thomas J. Ansbro, City Attorneyo
DATE: October 5, 2004
RE: Final Version of Proposed Harbour Towne Lease and Related Documents
As a result of the comments made by the City Commission at the September 28, 2004
City Commission meeting, provisions of the proposed new lease have been revised. The two
primary provisions pertained to City control of the two boatslips (adjacent to the I.T. Parker
Center on the west side, slips F-01 and F-02; see Section 9(b), page 20) and clarification of the
City's sole discretion to approve any construction (except maintenance, repairs or replacements
to "Existing Improvements" and any restoration of such improvements (see Section 6 (a),
pages 14 and 15). Copies of the applicable pages, showing the new text as revised, are
attached.
Also attached is a full set of the latest version of the Lease, as revised, and a full set of
its exhibits. Documents related to the Lease are also attached:
1) Assignment
2) "Mortgage Modification and Spreader Agreement"; and
3) a Wachovia Bank lender "comment letter"
As to the "Spreader Agreement", attached is a memorandum from Elaine Cohen of the
Weiss, Serota firm which explains its use.
As directed, this matter is being brought back to the City Commission for consideration
at the October 12, 2004 City Commission meeting.
566.028
TJA:slw
e 'ps� - 6 e�&B P A�
onis e',�
To: Thomas J. Ansbro, Esq.
From: Elaine M. Cohen, Esq.
Date: September 22, 2004
Re: I City of Dania Beach/Harbour Towne
Please be advised that the 9/22/04 revised draft of the Amended and
Restated Lease does not contain the changes regarding the following open issues as those
matters still need to be resolved:
I . Use of Boatslips. The City has requested that the use of the
Boatslips F-01 and F-02 be reserved for the exclusive use of the City, but the Tenant can
request their use if the City does not anticipate needing those Boatslips. The City would
have control of the scheduling of the use of those, Boatslips. The Tenant instead is
requesting that the City notify the Tenant in advance when the City is having an event
and Wants the Boatslips to be available to the City. The Tenant's position is that the
Boatslips might remain empty most of the time and could not be used to generate
revenue. Additionally, the Tenant does not want to reconfigure those Boatslips to
accommodate smaller boats as that would essentially remove those Boatslips from use by
Harbour Towne as Harbour Towne keeps the smaller boats in the boat barn.
2. Construction of New Improvements. The City's position is that it
wants to be able to withhold its consent in its sole discretion as to any new improvements
to be constructed at the Premises. The Tenant would agree that the City can withhold its
consent as to any new construction in the area in front of the Civic Center in its sole
discretion, but the City should not be able to unreasonably withhold its consent as to any
new improvements to be constructed elsewhere at the Premises.
3. Any New Improvements to be Constructed at the Tenant's
Expense. Is the City requesting that the Tenant construct any new improvements be
constructed at the Premises at Tenant's expense, other than the installation of security
fencing to restrict access to the Boatslips?
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4. Civic Center Parking Spaces. Must confirm if a provision in the
Lease providing that the non-exclusive and exclusive parking spaces in the area of the
Civic Center are not ever used or devoted to storage or any other use other than
temporary parking is acceptable or does the City want such provision to apply to all of
the parking at the site?
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NOTICE OF HEARING BEFORE CITY COMMISSION
CITY OF DANIA BEACH, FLORIDA, REGARDING
ADOPTION OF THE FOLLOWING PROPOSED ORDINANCES:
NOTICE IS HEREBY GIVEN that the City Commission of the City of Dania Beach,
Florida, on September 28, 2004, at 7:00 p.m. or as soon thereafter as the matter may be
heard, will conduct a public hearing in the City Commission Chambers of the Dania
Beach City Hall, 100 West Dania Beach Boulevard, Dania Beach, Florida to consider the
proposed adoption of the following Ordinances entitled:
AN ORDINANCE OF THE CITY OF DANIA BEACH, FLORIDA,
RELATING TO STORMWATER MANAGEMENT; PROVIDING
REVISIONS TO ARTICLE VIII (ENTITLED "STORMWATER
MANAGEMENT") TO UPDATE CODE PROVISIONS APPLICABLE TO
THE MANAGEMENT OF STORMWATER AND TO STORMWATER
ASSESSMENTS; CREATING A NEW DEFINITION AND PROVIDING
FOR CLARIFICATION OF CODE PROVISIONS; PROVIDING FOR
SEVERANCE; PROVIDING FOR CONFLICTS; FURTHER, PROVIDING
FOR AN EFFECTIVE DATE.
AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DANIA
BEACH, FLORIDA, APPROVING EXECUTION OF A LEASE
AGREEMENT AND RELATED DOCUMENTS BETWEEN THE CITY
AND HARBOUR TOWNE ASSOCIATES, A CALIFORNIA GENERAL
PARTNERSHIP PERTAINING TO PROPERTY OWNED BY THE CITY
AND COMMONLY KNOWN AS THE HARBOUR TOWNE MARINA
PROPERTY; AUTHORIZING AND DIRECTING THE EXECUTION OF
THE LEASE BY THE APPROPRIATE CITY OFFICIALS; PROVIDING
FOR CONFLICTS; PROVIDING FOR SEVERABILITY; FURTHER,
PROVIDING FOR AN EFFECTIVE DATE.
Copies of the proposed Ordinances are on file in the Office of the City Clerk, City Hall,
100 West Dania Beach Boulevard, Dania Beach, Florida, and may be inspected by the
public during normal working hours.
Interested parties may appear at the aforesaid meeting and be heard with respect to the
proposed. Any person who decides to appeal any decision made by the City
Commission with respect to any matter considered at this hearing will need a record of
the proceedings and for such purpose may need to ensure that a verbatim record of the
proceedings is made, which record includes the testimony and evidence upon which the
appeal is to be based.
In accordance with the American with Disabilities Act, persons needing assistance to
participate in any of the proceedings should contact Louise Stilson, City Clerk, 100 West
Dania Beach Boulevard, Dania Beach, Florida 33004, (954) 924-3622 at least 48 hours
prior to the meeting.
Run in Sun Sentinel: September 17, 2004
/s/ Louise Stilson
City Clerk
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j"Ej,et,'.".LUGER, PERETZ 9KAPLAN&BERLINP.L. Imm
an
October 21, 2004
VIA FedEx
Tom Ansbro, City Attorney
City of Dania Beach City Attorney
100 West Dania Beach Boulevard
Dania Beach, Florida 33004
Re: Harbour Towne Marina Lease
Dear Tom:
Enclosed please find a counterpart original of the Amended and Restated Lease Agreement, with
original signatures of Landlord and Tenant.
We also enclosed this firm's Trust Account checks (1) payable to the order of the City of Dania
Beach in the amount of $125,000.00 (representing the additional base rent payment due upon the effective
date) and (ii) $15,000.00 (being the agreed upon payment to reimburse the City for some of its fees and
costs incurred in the negotiation of the Lease).
It has been a pleasure working with you in connection with this transaction. If you have any
questions or comments concerning the foregoing, or the enclosures, please do not hesitate to call.
JC/mm
Enclosures
cc: Elaine Cohen, Esq. (via telecopy)
Jeffrey K. Ellis (via telecopy)
Gary Groenewold (via telecopy)
Michael Sachs (via telecopy)
199021
Very truly yours,
KLUGER, PERETZ, KAPLAN
Jon!C ssen
ss
& BERLIN, P.L.
Miami Center * Seventeenth Floor e 201 So. Biscayne Blvd.eMiami, Florida 33131 - Tel: 305.379.9000 * Fax: 305.379.3428
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THIS AMENDED AND RESTATED LEASE AGREEMENT (this "Amended and
Restated Lease Agreement") dated as of October 7-1, 2004 made by and between the CITY
OF DANIA BEACH, a Florida municipal corporation, having an address at 100 West Dania
Beach Boulevard, Dania Beach, Florida 33004 ("Landlord"), and HARBOUR TOWNE
ASSOCIATES, a California general partnership, having offices at 801 N.E. Third Street, Dania
Beach, Florida 33004 ("Tenant").
RECITALS
I . Landlord owns certain real property located in Broward County, Florida as
more particularly described on Exhibit A attached hereto and by this reference made a part
hereof (the "Parcel").
2. Landlord entered into that certain Lease Agreement dated May 28, 1980 by and
between Landlord, as Landlord therein, and Marine Conversions, Inc., a Florida corporation
("Marine"), as Lessee therein, which Lease Agreement was amended by that certain
Modification of Lease Agreement dated January 14, 1985 entered into between Landlord and
Marine, as further amended by that certain Second Modification of Lease Agreement dated
September 1, 1986 entered into between Landlord and Marine, as further amended by
Modification of Lease Agreement dated November 28, 1988 entered into among Landlord,
Marine and Southeast Bank, N.A., as Trustee ("Southeast") (collectively, the "Original
Lease").
3. Pursuant to that certain Assignment of Lease Agreement dated July 1, 1986
entered into between Marine and Southeast, the Lessee's interest under the Original Lease was
assigned to Southeast.
4. Pursuant to that certain Sublease Agreement dated December 31, 1988, entered
into between Southeast and Tenant, Southeast subleased the Premises (hereinafter defined) to the
Tenant (the "Sublease").
5. Pursuant to that certain Assignment of Lease and Assumption of Obligations
effective as of March _, 2000 entered into between Southeast and Harbour Towne Associates,
Inc., a Florida corporation, the Lessee's interest under the Original Lease was assigned to
Harbour Towne Associates, Inc.
6. Pursuant to that certain Assignment and Assumption of Lease and Termination of
Sublease dated as of October 5 , 2004 entered into between Harbour Towne Associates, Inc., a
Florida corporation, and Tenant, the Lessee's interest under the Original Lease was assigned to
Tenant and the Sublease was terminated and is no longer in effect.
7. On October 12, 2004, the City Commission of the City of Dania Beach passed
Ordinance No. 2004-031 approving the assignment of the Lessee's interest under the Original
Lease to Tenant and the execution and delivery of this Amended and Restated Lease Agreement.
0 8. Landlord and Tenant desire to amend and restate the Original Lease in its entirety.
NOW, THEREFORE, in consideration of the Premises and the mutual covenants
contained herein, and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, Landlord and Tenant agree that the Original Lease is hereby
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amended and restated in its entirety to read as follows:
SECTION 1. DEFINITIONS.
The following terms set forth below, when used in this Lease, shall be defined as
follows:
(a) "Additional Base Rent" shall be the following amounts due on the following
dates:
Additional
Rental Amount
$125,000
$62,500
$62,500
Lease Year Due Date
The Effective Date
October 1, 2005
October 1, 2006
(b) "Additional Rent" shall mean all monetary obligations of Tenant to Landlord
(other than Additional Base Rent, Minimum Rent and Percentage Rent) payable pursuant to
this Lease.
(c) "Affiliate " shall mean a Person who (i) is directly or indirectly controlled by,
or under common control with, the Tenant, or (ii) owns directly or indirectly fifty-one percent
(51 %) or more of equity securities of the Tenant; or (iii) is a general partner, officer, director,
non -financial institution trustee or fiduciary of the Tenant or of any Person described in (1) or
(ii), preceding; or (iv) is a son, daughter, spouse, parent, sibling or in-law of the specified
Person.
(d) "Applicable Approvals" shall mean all Governmental Approvals (with all
appeal periods having expired) required by Tenant for the construction of improvements at the
Premises, including, but not limited to building permits.
(e) "Approved Conceptual Plans" shall have the meaning ascribed to such term in
subsection 6(a) of this Lease.
(0 "Bankruptcy Code" shall mean Title I I of the United States Code, as the same
may be amended from time to time.
(g) "LLLY " shall mean the City of Dania Beach, Flonida, a Flonida municipal
corporation.
(h) "Civic Center" shall mean that portion of the Premises identified on a portion of
the survey of the Premises attached hereto as Exhibit B, including the improvements located
thereon.
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(i) "CO " and the date(s) that any improvements are deemed to be completely
constructed, shall mean: (1) with respect to buildings to be constructed on the Premises, the
date(s) upon which a shell certificate of occupancy (or similar permit) shall be issued by the
appropriate Governmental Authority; or (2) with respect to other improvements to be
constructed on the Premises, the date upon which the improvements may first be legally put
into service for the intended use thereof (regardless of whether such is the actual first date of
usage).
0) "Default Rate" shall mean a per annum rate equal to the greater on a daily
basis of (i) twelve percent (12%) per annum or (ii) five percent (5%) above the "Prime Rate"
as announced from time to time and published by the Wall Street Journal; provided, however,
in no event shall the Default Rate exceed the highest non -usurious rate permitted by law.
(k) "Depository " shall mean an Institutional Lender who is designated by Landlord
to serve as Depository pursuant to this Lease.
(1) "Effective Date" shall mean the date upon which the last of Landlord and
Tenant has executed this Lease Agreement, and the City has approved same by appropriate
governmental action.
(in) "Existing Improvements" shall mean all Improvements existing on the
Effective Date, including the following: a west two-story masonry facility housing office and
service shop, a service yard.with marine way, yacht basin, seawalls, boat docks, high and dry
boat storage building, wet slip marina and site improvements (including, without limitation,
dredging). The approximate location of the Existing Improvements is shown on the survey of
the Premises dated 10/27/98, prepared by Paramount Engineering Group, Project Number
2254, attached hereto as Exhibit "E. "
(n) "Force Mgjeure" shall mean any event which results in the prevention or delay
of performance by a party of its obligations under this Lease and which is beyond the
reasonable control of such party including, but is not limited to fire, earthquakes, hurricanes,
tornadoes, storms, lightning, epidemic, war, riot, civil disturbance, sabotage, and
governmental actions (provided that Landlord's actions cannot delay Landlord' s compliance
hereunder).
(o) "Governmental Approvals" shall mean all governmental and quasi -
governmental approvals from applicable city, county and other agencies and authorities
required to develop the Premises, including, but not limited to, development of regional impact
approvals, site plan approvals, comprehensive land use plan approvals, plat approvals and
recordation, public dedications, environmental approvals, zoning approvals, building permits
and all other governmental approvals required in connection with the development of any
is Improvements at the Premises (and the expiration of all appeal periods with respect thereto),
modification or vacation of easements or both, and other matters pertaining to the Premises.
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(p) "Governmental Authorities" means the United States of America, the State of
Florida, Broward County, the City, and any agency, department, conunission, board, bureau,
instrumentality or political subdivision of any of the foregoing, now existing or hereafter
created, having jurisdiction over the Premises or any portion thereof.
(q) "Gross Revenue" means all revenues (whether cash, credit or barter),
including operational income and rental income paid to Tenant and any Sublessee which is an
Affiliate of Tenant (and any party that succeeds [e.g., assignee or transfer by foreclosure] to
the interest of Tenant and any Sublessee Affiliate of Tenant) derived from the ownership and
operation of the Premises by Tenant and any Sublessee which is an Affiliate of Tenant (and
any party that succeeds [e.g., assignee or transfer by foreclosure] to the interest of Tenant and
any Sublessee Affiliate of Tenant), exclusive of (i) proceeds from sales or refinancing; (ii)
deposits unless and until same are forfeited by the Person making the deposit; (iii) advance
rentals until such time that they are earned; (iv) insurance loss proceeds; (v) any award or
payment made by a governmental authority in connection with the exercise of any right of
eminent domain, condemnation, or similar right or power; and (vi) any sales tax or other
Impositions collected by Tenant. Tenant will not offer any discount to any Sublessee of the
"Fee Parcel" (being the portion of the manna adjacent to the Parcel and owned by Tenant in fee
simple) for an Occupancy Agreement or service with respect to the leased Premises which is
greater than any discount available to a Sublessee of the leased Premises for a similar Occupancy
0 Agreement or service.
(r) "Impositions " means the following imposed by a Governmental Authority:
(1) Real property taxes;
(ii) Tangible personal property taxes;
(iii) Intangible personal property taxes;
(iv) Ad valorem taxes;
(v) Sales, use or excise taxes;
(vi) General and special assessments
(vii) Levies;
(viii) License and permit fees;
(ix) Any other governmental levies of general application fees, rents,
assessments or taxes and charges, general and special, ordinary and
extraordinary, foreseen and unforeseen, now or hereafter enacted of any
kind whatsoever;
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(x) Service charges of general application with respect to police and fire
protection, street and highway maintenance, lighting, sanitation and
water supply; and
(xi) Any fines, penalties and other similar governmental charges applicable to
the foregoing, together with any interest or costs with respect to the
foregoing.
(s) "Improvements " shall mean any and all buildings, pavements, fixtures,
permanently affixed equipment, signs, landscaping, facilities, utilities (both above ground and
below ground), basins, marina improvements and all other structures or improvements now or
hereafter constructed on or offsite in connection with the Premises and the marina facility
operated thereat and all additions, alterations, modifications, renovations, and replacements
thereto, but expressly excluding the Civic Center and Restroom Building. All Improvements
shall remain the property of Tenant, unless and until the Termination Date.
(0 "Institutional Lender" shall mean a commercial bank, savings bank, savings
and loan association, trust company, or insurance company.
(u) "Lease" or "A2reement" shall mean this Amended and Restated Lease
Agreement, including any supplements, modifications or amendments thereof
(v) "Lease Year" shall mean the full calendar months between January I through
and including December 3 1, provided, however, if the Effective Date is on a date other than
January 1, or if the Termination Date is other than December 3 1, the first and last Lease Year
will be deemed to mean the period from the Effective Date up to and including December 31
next succeeding and the period from January I next preceding the Termination Date to the
Termination Date, respectively.
(w) "Memorandum" shall mean a memorandum of this Lease in the form of
Exhibit "C" to be recorded in the Public Records of Broward County, Florida.
"Minimum Ren t" shall mean the following:
For the period from the Effective Date through and including December 31, 2005,
the Minimum Rent shall be $141,775.00 per annum. The Minimum Rent shall be adjusted on
January 1, 2006 and on the beginning of each succeeding 5 1h Lease Year during the Tenn of this
Lease by multiplying the Minimum Rent then being paid by a fraction, the numerator of which
shall be the Consumer Price Index - U.S. City average for urban wage earners and clerical
workers all items (1982-84 equals 100) ("CPI") for the first month of the Lease Year in which
the adjustment is being made, and the denominator of which shall be the CPI for the first month
of the 5 1h Lease Year preceding the Lease Year for which the adjustment is being made.
Anything herein to the contrary notwithstanding, in no event shall Minimum Rent in any year be
less than the Minimum Rent paid for the immediately prior year. Should the CPI become
unavailable, a reasonable substitute prepared by the U.S. Department of Labor or other source, as
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designated by Landlord, shall be used. Failure of Landlord to timely notify Tenant of the new
annual Minimum Rent amount shall not be deerned a waiver by Landlord of the increased rental;
the new annual amount shall be payable, retroactive to the commencement of the new adjustment
date, upon notification by Landlord to Tenant of the new annual Minimum Rent amount.
(y) "New Additional Improvements" shall mean any new additional Improvements
to the Premises constructed by Tenant after the Effective Date which are of a different character
and type than the Existing Improvements, other than (1) any repairs, replacements, renewals, or
alterations to the Existing Improvements as required pursuant to the provisions of Section 12 of
this Lease, (11) any Restoration (hereinafter defined), (iii) any additional dredging, (iv) security
fencing which restricts access to Slips F-01 and F-02, and (v) any other improvements, repairs,
replacements, alterations or additions to the Premises which are required to be made by Tenant
pursuant to the provisions of this Lease.
(z) "Occupancy Agreement" shall mean a sublease, sub -sublease, license,
sub -license, concession agreement or sub -concession agreement for space located at the
Premises or for docks, individual slips or berths in the marina facility located at the Premises,
which are entered into in the ordinary course of business by Tenant or any Sublessee which is
an Affiliate of Tenant.
(aa) "Perce ntage Rent" shall mean the following percentages of the amount of the
Gross Revenue derived from the Premises by Tenant or any Sublessee which is an Affiliate of
Tenant (or any party who succeeds to the interest of Tenant or any Sublessee Affiliate of
Tenant) for the following periods of time during the Lease Term:
Time Period
Percentage
Effective Date through and including December 31, 2004
5.5%
Calendar Year 2005
6%
Calendar Year 2006
6.25%
Calendar Year 2007
6.5%
Calendar Year 2008
6.75%
Calendar Year 2009
7%
Calendar Year 2010 through and including Calendar.Year 2039
8%
January 1, 2040 through and -including August 31, 2040
8%
(bb) "Permitted Change" shall mean (i) a change which is required to be made to
comply with applicable governmental requirements, (11) a change which involves only
substituting materials of comparable or better quality, (iii) changes to interior improvements,
or (iv) immaterial changes made in the field to conform to field conditions.
(cc) "Perraitted Uses" shall mean the permitted uses which may be made of the
Premises pursuant to Section 5 of this Lease.
(dd) "Person " shall mean any individual, firm, trust, estate, partnership, joint
venture, company, corporation, association, or any other legal entity or business enterprise.
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The reference in this Lease to any one of the foregoing types of persons, shall be deemed a
reference to all other types of persons.
(ee) "Premises " shall mean the Parcel together with all Improvements thereon, the
equipment permanently affixed therein, such as electrical, plumbing, sprinkler, fire protection
and fire alarm, heating, steam, sewage, drainage, refrigerating, communications, gas and other
systems and their pipes, wires, mains, lines, tubes, conduits, equipment and fixtures together
with all appurtenances, rights, privileges, permits and easements benefiting, belonging or
pertaining thereto.
(ff) "Rent " shall mean the Additional Base Rent, Minimum Rent, Percentage Rent
and any Additional Rent.
(gg) "Resident " shall mean any citizen who is either registered to vote in the City or
who owns real property in the City.
(hh) "�tate " shall mean the State of Florida.
(ii) "Sublease " shall mean any sublease (including any sub -sublease or any other
further level of subletting) of all or any portion of the Premises.
40 0j) "Sublessee " shall mean any party granted rights by Tenant under a Sublease or
by any other Sublessee (immediate or remote) under a Sublease.
(kk) "Surviving Obligations" shall mean upon the termination, the obligations of
Tenant (1) to pay Rent which is due and unpaid through the effective date of such termination
(prorated through the date of such termination) to the extent due, (ii) with respect to any claim
for any brokerage commission made by any broker or firider claiming by or through the
Tenant, (Iii) the provisions of Section 16 (Indemnity) for matters arising prior to the date of
termination of this Lease, (iv) Section 27 (Environmental Compliance); and (v) any other
obligations that expressly survive termination of this Lease.
(11) "Tenant " shall mean Harbour Towne Associates, a California general
partnership, having offices at 801 N.E. Third Street, Dania Beach, Florida 33004, and its
successors and assigns as permitted by this Lease.
(mm) "Title Company" shall mean the title company selected by Tenant to issue any
leasehold and/or leasehold mortgagee title insurance policy, which Tenant may elect to obtain
insuring its rights or its lender's under this Lease.
(nn) "Termination Date " shall mean the date as set forth in Section 3 of this Lease.
0 (oo) "Term or Term or this Lease" or words of similar import shall mean the term
set forth in Section 3 hereof.
7
0
SECTION 2. LETTING.
(a) Let. The Landlord hereby lets to Tenant and Tenant hereby hires and takes
from the Landlord the Premises.
(b) Uses. Tenant agrees to operate the Premises only for the uses permitted
pursuant to this Lease.
(c) As Is. Except as may. be otherwise provided in this Lease the:
(i) Tenant accepts that the Premises in the existing (i.e., "as is") condition
and state of repair as of the Effective Date and Tenant agrees that no representations,
warranties, express or implied, have been made by or on behalf of Landlord in respect of the
Premises or the status of title thereto. Without limitation of the foregoing (i) Landlord makes
no representations or warranties whatsoever as to: (a) the condition of the Premises, or (b)
whether the Premises, or any part thereof, is in compliance with applicable federal, state, and
locat laws, ordinances, rules, or regulations; or (c) the permitted or available uses of the
Premises under any applicable federal, state, or local laws, ordinances, rules, or regulations;
(1i) Landlord makes no representations or warranties whatsoever as to the
legality, permissibility or availability of any use of the Premises that may be contemplated by
the Tenant; and
(iii) Landlord makes no representations or warranties concerning
habitability or fitness for any particular purpose.
The Tenant hereby ASSUMES ALL RISK of non-compliance of the Premises, or any
part thereof, with any federal, state, or local laws, ordinances, rules, or regulations. Upon
receipt of notice of any noncompliance with any such laws, ordinances, rules, or regulations,
the Tenant hereby agrees to make any and all repairs, alterations, and additions to the Premises
and to take all corrective measures as may be necessary to bring the Premises into compliance
with all laws, ordinances, rules and regulations. Furthermore, as of the Effective Date, the
Tenant releases the Landlord of and from any and all claims and liabilities whatsoever on
account of the condition of the Premises or any failure of any of the component parts to be in
working order or because of any necessity of Tenant to repair or take corrective actions with
respect to any part thereof, or the necessity for obtaining any development approvals from any
goverrimental. body, including without limitation Landlord agencies.
(d) Quiet EnjoyMent. Tenant, upon paying the Rent herein reserved and perforining
and observing all of the other ternis, covenants and conditions of this Lease on the Tenant's part
to be performed and observed, shall peacefully and quietly have, hold and enjoy the Premises
during the Term, subject to the rights of the Landlord to enter upon and use the Premises
pursuant to the terms and conditions of this Lease specifically including, but not limited to,
W
Landlord's rights under this Lease with respect to the Civic Center and (should it be constructed
by Landlord) Restroom Building.
SECTION 3. TERM.
The term of this Lease shall commence on the Effective Date and shall terminate on the
31" day of August, 2040 ("Termination Date"), unless sooner terminated as provided herein.
0XIKI 11101r1m 191 ph"I 0 lie IN
(a) Additional Base Rent. Tenant shall pay to Landlord the Additional Base Rent,
which Additional Base Rent shall be paid on the dates set forth in Section I(a) hereof.
(b) Minimum Rent and Percentage Rent. In addition to the Additional Base Rent,
the Tenant shall pay to Landlord an amount equal to the greater of the Minimum Rent or
Percentage Rent for each Lease Year. The Percentage Rent in respect to any Lease Year shall
be paid in monthly installments within fifteen (15) days following the end of each calendar
month (or part thereof) during the Lease Year with respect to the Gross Revenue received by
Tenant or any Sublessee (including, without limitation, Subtenant) which is an Affiliate of
Tenant (and any party that succeeds to the interest of Tenant or any Sublessee Affiliate of
Tenant) during such preceding calendar month. If, based upon Tenant's Percentage Rent
Statement (hereinafter defined), the Percentage Rent paid for any Lease Year is less than the
Minimum Rent for that Lease Year, then, Tenant shall pay the difference, if any, to Landlord
within thirty (30) days following the end of such Lease Year. If Tenant's Audited Percentage
Rent Statement (hereinafter defined) discloses an understatement of the Percentage Rent due to
Landlord, then Tenant shall pay to Landlord, within ninety (90) days following the end of such
Lease Year, the amount due with respect to such understatement.
Tenant shall furnish to Landlord a written statement from Tenant of the Percentage
Rent within thirty (30) days after the close of each Lease Year during the Term ("Tenant's
Percentage Rent Statement"). Tenant's Percentage Rent Statement shall be certified by
Tenant as a true and correct determination of Percentage Rent based on the Gross Revenue for
the applicable Lease Year. Within ninety (90) days after the close of the applicable Lease
Year, Tenant shall also furnish to Landlord an audited statement of the Percentage Rent for the
applicable Lease Year ("Tenant's Audited Percentage Rent Statement") prepared by a
certi ied public accounting firm selected by Tenant and reasonably acceptable to Landlord
("Tenant's CPA Firm") in accordance with Governmental Auditing Standards issued by the
Comptroller General of the United States. Tenant's CPA firm shall also certify to Landlord
that the calculation of Percentage Rent as set forth in Tenant's Audited Percentage Rent
Statement was calculated in accordance with the terms of this Lease. At all times during the
Term of this Lease and for any purpose whatsoever, the Landlord shall have the right at any
time during business hours, and upon two (2) business days prior notice to Tenant, to inspect
and audit, or cause to be inspected and audited by a certified public accounting firm selected
by Landlord ("Landlord's CPA Firm"), the business records, bookkeeping and accounting
records, sales and income tax records and returns and other records of Tenant with respect to
I
the Premises including the books and records of Tenant and any Sublessee Affiliate of Tenant.
Tenant shall fully cooperate with Landlord and Landlord's CPA Firm. If any inspection or
audit discloses an understatement of the Percentage Rent due to Landlord, then Tenant shall
pay to the Landlord, within ten (10) days after receipt of the inspection or audit report, the
amount due with respect to such understatement, plus interest (at the Default Rate) from the
date originally due until the date of payment. Further, if such inspection or audit is made
necessary by Tenant's or the Tenant's Sublessee Affiliate's failure to furnish reports or
supporting records as herein required, or to furnish such reports, records or information on a
timely basis, or if an under reporting of Percentage Rent for the period of any audit is
determined by any such audit or inspection to be greater than three percent (3%), then Tenant
shall reimburse the Landlord for the cost of such audit or inspection, including, without
limitation, the actual reasonable costs and expenses of the Landlord' s CPA Firm, attorneys
and compensation of the Landlord's employees. The foregoing remedies shall be in addition to
the Landlord's other remedies and rights under this Lease, applicable law or both. Nothing
contained herein shall preclude Tenant from filing an action to challenge the findings of
Landlord' s CPA Firm.
(c) Expenses. It is understood and agreed by and between the parties hereto
throughout the Term all costs, expenses, taxes (except income taxes and the like, if any owed
by Landlord), special assessment and impositions of each and every kind and nature
whatsoever incurred or imposed hereunder or against the Premises including, without
limitation, the Improvements thereon as well as all of the specific obligations or expenses
herein defined, shall be made by Tenant in accordance with the terms and provisions hereof
and, in no case, later than when such payment is due and payable to the payee.
(d) Payment of Impositions. Tenant shall pay, on or before their respective due
dates, to the appropriate collecting authority, all Impositions, which are now or may hereafter
be levied, assessed, confirmed, and imposed upon or charged to Owner or Tenant with respect
to (i) the Premises, (ii) the Landlord's interest in the Premises, (iii) Tenant's leasehold estate
granted hereby, (iv) any document to which Tenant is a party creating or transferring an
interest or estate in the Premises of, by, or to Tenant, (v) the use and occupancy of the
Premises, (vi) any personal property, furniture, fixture or equipment or other facility used in
connection with the operation of the Premises, or (vil) any Rent or other sums payable
hereunder. To the extent permitted by law the Tenant shall be permitted to pay any
assessments in annual installments and to the extent such assessments may be payable in
installments then Tenant shall only be required to pay those installments which shall become
due and payable during the Term. Notwithstanding anything to the contrary contained herein,
Tenant shall not be responsible to pay for Impositions with respect to the Civic Center and
Restroom Building or Landlord's interest therein. In connection therewith, Tenant agrees to
cooperate with Landlord in obtaining (1) separate tax bills for the Civic Center and Restroom
Building and (ii) an exemption from the payment of Impositions with respect to the Civic
Center and Restroorn Building. Tenant's obligation to so cooperate with Landlord shall
include, but not be limited to, executing any applications with Governmental Authorities in
connection therewith and/or subleasing back the Civic Center and Restroom. Building to the
10
City for one ($1.00) dollar per year. In the event that the City is not exempted from the
payment of Impositions with respect to the Civic Center and Restroom Building or Landlord' s
interest therein and a separate tax bill is not issued for the Civic Center and/or Restroom.
Building which is subject to Impositions, then the Landlord shall be responsible to pay its
prorata share of the Impositions based upon the gross square footage of the Civic Center
and/or Restroom Building which is subject to Impositions divided by the total gross square
footage of the Premises.
(e) Contest of Impositions. Tenant will have the right at its own expense to contest
the amount of validity, in whole or in part, of any Imposition by appropriate proceedings
diligently conducted in good faith, but only after payment of such Imposition, unless such
payment would operate as a bar to such contest or interfere materially with the prosecution
thereof, in which event, payment of such Imposition may be postponed if, and only as long as:
(i) neither the Premises nor any part thereof, by reason of such
postponement or deferment, in the reasonable judgment of Landlord, would be in danger of
being forfeited or lost; and
(11) Tenant will have deposited with the applicable Governmental Authority
or Landlord cash or other security approved by Landlord in the amount so contested and
unpaid, together with all interest and penalties in connection therewith and all charges that may
or might be assessed against or become a charge on the Premises or any part thereof or to
Landlord in connection with such proceedings. Upon the termination of such proceedings, it
will be the obligation of Tenant to pay the amount of such Imposition or part thereof as finally
determined in such proceedings, the payment of which may have been deferred during the
prosecution of such proceedings, together with any costs, fees (including attorneys, fees and
disbursements at the trial level and on appeal), interest, penalties or other liabilities in
connection therewith. Upon such payment, Landlord will return any amount deposited with it
with respect to such Imposition in question, provided, however, that Landlord, if requested by
Tenant, will disburse said monies on deposit with it directly to the Governmental Authority to
whom such Imposition is payable. If, at any time during the continuance of such proceedings,
Landlord reasonably deems the amount deposited as aforesaid to be insufficient, Tenant, upon
Landlord's demand, will make an additional deposit of such additional sums or other
acceptable security as Landlord reasonably may request, and upon failure of Tenant to do so,
the amount theretofore deposited may be applied by Landlord to the payment, removal and
discharge of such Imposition and the interest and penalties in connection therewith and any
costs, fees, (including attorneys' fees and disbursements at the trial level and on appeal) or
any other liability accruing in any such proceedings and the balance, if any, will be returned to
Tenant or the deficiency, if any, will be paid by Tenant to Landlord on demand.
(f) Landlord' s Joinder In Contest. Landlord will not be required to join in any
proceedings referred to in Section 4(e) hereof unless the provisions of any law, rule or
regulation at the time in effect requires that such proceedings be brought by and/or in the name
of Landlord, in which event, Landlord will join and cooperate in such proceedings or permit
11
the same to be brought in Landlord's name, but Landlord will not be liable for the payment of
any costs or expenses in connection with any such proceedings and Tenant will reimburse
Landlord for any and all costs or expenses, including Landlord's attorney's fees and
disbursements at the trial level and on appeal, which Landlord may sustain or incur in
connection therewith. Landlord will not be required to join in any such proceeding wherein
Landlord is the taxing authority unless Landlord is satisfied that the mere joining in by
Landlord to enable Tenant to bring such proceeding will not be detrimental to Landlord's
position as the taxing authority in connection with same.
(g) Reliance on Certificate by Landlord. Landlord shall be entitled to rely upon any
certificate, advice or bill of the appropriate official designated by law to make or issue the
same or to receive payment of any Imposition, asserting non-payment of such Imposition, as
evidence that such Imposition is due and unpaid at the time of the making or issuance of such
certificate, advice or bill, at the time or date stated therein.
(h) Licenses and Permits. Tenant shall maintain in current status all federal, state,
county and local licenses and permits, now or hereafter, required for the operation of the
business conducted by Tenant.
(1) Proration. Taxes, assessments and other expenses in connection with the
Premises shall be prorated as of the last day of the Term with Tenant being responsible for its
40 obligations pursuant to this Lease for the entire Term.
0) Utilities. During the Term, Tenant shall pay when due all water, wastewater,
electric, telephone, solid waste, recycling, and all other utility and other expenses of any and
all types whatsoever which are now or hereafter charged or assessed with respect to operations
at the Premises, except for the Civic Center and Restroom Building. Tenant shall pay all fees
or charges, relative to the foregoing promptly prior to delinquency.
(k) Additional Rent. If the Landlord is required or elects to pay any sum or sums
or incur any obligations or expense by reason of the failure, neglect or refusal of Tenant to
perform or fulfill any one or more of the conditions, covenants or agreements contained in this
Lease which breach is not cured by Tenant within the applicable cure period, Tenant agrees to
pay the sums so paid or the expense so incurred, including all interest, costs, damages and
penalties, and reasonable attorneys' fees and costs, and each and every part of the same shall
be and become Additional Rent payable within ten (10) calendar days after written demand
therefor.
(1) Late Payments - Interest. Landlord shall be entitled to collect interest at the
Default Rate from the date any sum is due to Landlord until the date paid on any amounts that
are not paid within five (5) days of their due date under this Lease. The right of Landlord to
require payment of such interest and the obligation of the Tenant to pay same shall be in
addition to and not in lieu of the right of the Landlord to enforce other provisions herein and to
pursue other remedies provided by law.
12
(m) Place of Payments. All payments of Rent required to be made by the Tenant to
Landlord under this Lease shall be made payable to "City of Dania Beach," and shall be paid
to the Landlord at 100 West Dania Beach Boulevard, Dania Beach, Florida 33004, or to such
other office or address as may be substituted therefor. All Rent (together with all applicable
sales tax thereon) shall be payable without demand, offset or deduction, other than as set forth
in this Lease.
SECTION 5. RIGHTS AND USES OF THE TENANT.
(a) Permitted Uses. Tenant shall be permitted to utilize the Premises only as a
marina facility, which includes the following permitted uses ("Permitted Uses"), to wit:
(1) Dock rental.
(ii) Marina.
(iii) For sale for consumption by the public of any and all types of food and
dairy products, novelties, sundries, souvenirs, toys, suntan lotions, bathing caps, bathing suits,
towels, magazines, soft drinks, patent medicines, any and all types of tobacco products, beach
equipment, postal cards and any and all types of related products which may be reasonably
required by the general public in their utilization of the facilities at the Premises.
(iv) Sale of liquor, beer and wine only for so long as it is lawful for liquor,
beer and wine to be sold in the City under the conditions of those existing on the Premises;
provided, however, the foregoing shall not be construed to relieve Tenant from making proper
application and meeting all requirements imposed by all governmental authorities having
jurisdiction over the sale of liquor, beer and wine on the Premises.
(v) Office, boatyard and related operations, marine service operations, dry
storage, sales of marine and marine related equipment, and other sales, services and operations
related to marine and marina uses.
(vi) Such other compatible uses as permitted under applicable law for which
the Landlord has given its prior written consent.
(vii) The Civic Center may be used by Landlord for such uses as Landlord
shall determine.
(b) Prohibited
Premises for the following
Uses
Tenant shall be expressly prohibited from utilizing the
(1) Adult arcade, adult bookstore/adult video store, adult booth, adult
dancing establishment, adult entertaim-nent establishment, adult motel, or adult theater, as such
13
terms are defined in the City ordinances of the City of Dania Beach or any successor
legislation thereto.
(ii) Any use that requires the storing of hazardous substances, hazardous
materials or both at the Premises in violation of applicable law.
(111) Any use of the Premises for residential purposes or living quarters of any
kind whatsoever.
(iv) Any use which is not a Permitted Use as set forth in Section 5(a) above.
(v) Any use prohibited by law.
(vi) Sale of petroleum.
(vii) Storage of petroleum in either above ground or underground tanks.
(c) No ondominiurn Conversion. Tenant shall not be permitted to submit or
convert any portion of the Premises, including, without limitation the boat docks, to a
condominium regime or condominium use.
(d) Intent. It is the intent of Landlord and Tenant that the general nature of the
40 Premises and Tenant's historic use of them remain as a marina facility, together with the
Permitted Uses, throughout the Term of this Lease.
SECTION 6. CONSTRUCTION BY TENANT.
(a) Construction Plans. Prior to commencement of construction of any
Improvements by Tenant (including, without limitation, any Restoration (hereinafter defined),
the Tenant shall submit to the Landlord for review and approval, a preliminary site plan and
conceptual preliminary plans with respect to all Improvements prepared by an architect or
engineer licensed to practice in Florida (other than interior improvements) ("Conceptual
Plans") for Landlord's written approval (" Conceptual Approval"), which Conceptual
Approval may be granted or withheld by Landlord in its sole and absolute discretion; provided,
however, that with respect to (1) any maintenance, repairs or replacements to the Existing
Improvements at the same location at the Premises and (ii) any Restoration of the Existing
Improvements at the same location at the Premises, Conceptual Approval shall not be
unreasonably withheld or delayed by Landlord. The Landlord shall provide its written
Conceptual Approval or disapproval (specifying the basis for disapproval, comments or both)
to any such Conceptual Plans within thirty (30) calendar days of receipt of request for same, it
being understood that Landlord's review and approval of the Conceptual Plans are from the
perspective of a land owner, not a governmental entity, and need not be based upon, or limited
to, governmental requirements. Disapproval may be based on the Tenant's failure to
provide sufficient information on the Conceptual Plans. Landlord' s determination as to
whether to approve or disapprove the Conceptual Plans shall be made by the City Commission
14
after the City's staff has reviewed the Conceptual Plans and made an advisory
recommendation to the City Commission; provided, however, Tenant acknowledges and agrees
that Conceptual Approval by Landlord of the Conceptual Plans by the City Commission after
review of same by the City's staff shall in no event be deemed approval by the City of those
Conceptual Plans in its governmental capacity. Once any Conceptual Plans receive Conceptual
Approval (following a meeting and public hearing of the Dania Beach City Commission), such
Conceptual Plans shall be deemed "Approved Conceptual Plans."
The approval by the Landlord of any Conceptual Plans or other plans, specifications,
site plans, designs or other documents submitted to Landlord pursuant to the terms and
conditions of this Lease from the perspective of a land owner, not a governmental entity, shall
not (a) confer any rights upon Tenant to have any such plans approved by the City in its
governmental capacity, (b) constitute a representation or warranty that such comply with all
applicable laws, ordinances, rules, regulations and procedures of all applicable Governmental
Authorities or that such will be approved by the City in its capacity as a Governmental
Authority, it being expressly understood that the responsibility therefor shall at all times
remain with Tenant, and (c) constitute the approval of the City in its capacity as a
Governmental Authority. Tenant acknowledges and agrees that Tenant is subject to all
applicable ordinances, rules, regulations and procedures of the City and that Tenant shall have
the responsibility, at its sole cost and expense, to submit all required applications, materials
and documentation to the City and all other Governmental Authorities, and to obtain all
10 Governmental Approvals applicable to the development of the Premises and construction of the
Improvements shown on the Approval Conceptual Plans.
Only minor changes (as the term "minor changes" is interpreted by Landlord) and
Permitted Changes may be made to the Approved Conceptual Plans without the prior written
approval of the Landlord.
(b) Deemed Approval. In the event that the Landlord shall fail to approve or
disapprove (and specify the basis for such disapproval) any Conceptual Plans submitted to
Landlord as a land owner which requires its approval within thirty (30) calendar days of being
submitted to Landlord, then said Conceptual Plans shall be deemed "Approved Conceptual
Plans. "
(c) Standards of Construction. Any and all construction of Improvements shall be
performed in such a manner as to provide that the Improvements shall:
0) Be structurally sound and safe for its intended use, and free from any
unusual hazards;
hereof;
0
(ii) Be designed for use for only those purposes permitted under Section 5
15
(ill) Be fire resistant to the extent required by the provisions of the local
applicable building codes and shall not be used for the manufacture or storage of flammable,
explosive or hazardous materials in violation of applicable law;
(iv) Comply with the Approved Conceptual Plans;
(v) Comply with the terms and provisions of this Lease; and
(vi) Comply with all applicable laws, ordinances, rules, regulations and
procedures of all applicable Governmental Authorities.
The Landlord may reflise to grant approval if, in its opinion, the proposed
facilities as shown on such plans and specifications will fail to meet the criteria set forth above.
(d) Costs. It is understood and agreed that in the course of any construction
undertaken by Tenant during the term of this Lease, the Tenant shall be responsible for all
costs associated with any removal, replacement, relocation and protection of all utilities,
whether such utilities are located at the Premises or on adjacent property, including but not
limited to water, sewer, telephone, or electric.
(e) Comply with Applicable Law. All Improvements constructed or installed by the
Tenant, its agents, or contractors, shall conform to all applicable state, federal, county, and
local statutes, ordinances, building codes, fire codes, and rules and regulations, as amended.
(f) Consultation. If requested by the Landlord, the Tenant and its
architect/engineer and contractor shall meet with the Landlord in periodically scheduled
meetings to assess the current status of completion.
(g) Tenant Property. Unless otherwise set forth herein, all Improvements (except
for the Civic Center, Restroom Building and any dredging improvements made by Landlord
pursuant to the provisions of subsection 17(g) hereof) and all fixtures, structures, facilities,
pavements and other leasehold improvements and any additions and alterations made to the
Premises (including those that are nailed, bolted, stapled, or otherwise affixed to the Premises)
by Tenant, or at Tenant's direction, shall be and remain Tenant's property until the expiration
or termination of this Lease, at which time, all such leasehold improvements shall become
Landlord's property and shall be surrendered with and remain on the Premises. Any addition,
fixture or other improvement that is nailed, bolted, stapled, or otherwise affixed to the
Premises is a leasehold improvement. The Civic Center, Restroom Building (hereinafter
defined), if constructed, and any dredging improvements made by Landlord pursuant to the
provisions of subsection 17(g) hereof, are and shall remain Landlord's property throughout
and upon expiration of the Term.
(h) Encumbrances. Tenant hereby represents, warrants and covenants to the
Landlord that the fee simple title to the Premises shall be at all times free and clear of all liens,
claims and encumbrances created by or through Tenant; provided, however, that the Tenant
16
shall be entitled to encumber the leasehold estate or the Tenant's interest in the
Improvements. If any lien or notice of lien shall be filed against the fee simple title of the
Premises created by or through Tenant (other than those created or consented to by Landlord),
the Tenant shall, within thirty (30) calendar days after notice of the filing thereof, cause the
same to be discharged of record by payment, deposit, bond, or order of a court of competent
jurisdiction. Tenant shall not be deemed to be Landlord' s agent so as to confer upon any
contractor or subcontractor providing labor or services that are material to the Premises
(whether in connection with Tenant's Improvements or otherwise) a construction lien,
mechanic's lien or both against Landlord' s estate under the provisions of Chapters 255 and
713, Florida Statutes, as amended from time to time. The foregoing shall be contained in a
notice or memorandum to be recorded in the Public Records of Broward County in accordance
with Chapters 255 and 713, Florida Statutes.
(i) As Builts. Within one hundred twenty (120) days after the date a CO is issued
for Improvements constructed by Tenant during the term of this Lease, the Tenant shall at its
expense, provide the Landlord with a complete set of "as built" plans and specifications,
including mylar reproducible "record" drawings, and, if available, one set of machine readable
disks containing electronic data in an AUTOCAD format that meets the Landlord's graphic
standards of the "as -co nstructed" or "record" plans for such Improvements. The "as built"
plans submitted by Tenant must show the square footage of each Improvement depicted in such
plans.
0) Required Governmental Permits and Approvals. Tenant, at its sole cost and
expense, shall obtain all required permits and approvals from all Governmental Authorities for
any Improvements constructed or to be constructed by Tenant, including but not limited to
departments, divisions or offices of the State of Florida, Broward County, the City and the
federal government. Tenant shall also pay all impact and concurrency fees (if any) associated
with its development of the Premises.
(k) ADA.
(i) All Improvements (excluding the Civic Center and Restroom Building)
shall be in compliance with the Americans with Disability Act of 1990, as same may be
amended from time to time (the "ADA") to the extent required by law and with Section
553.501 et seq. of the Florida Statutes, as same may be amended from time to time.
(ii) Tenant further warrants that the Premises shall be in compliance with the
accessibility standards for government programs contained in the ADA and all requirements of
Section 553.501 ct seq. and Section 255.21 of the Florida Statutes.
SECTION 7. CONSTRUCTION CONTRACTS, BONDS, INDEMNIFICATION, AND
INSURANCE REQUIREMENTS FOR CONTRACTORS.
(a) Payment and Performance Bond, The Tenant agrees that before commencing
any work or construction with a cost in excess of $100,000, the Tenant shall maintain, at all
17
times, -a valid payment and performance bond, which shall be in (1) an amount not less than
the amount covering the full amount of the work then being performed, and (2) a form and
substance reasonably acceptable to Landlord.
(b) Contractor Indemnity. The Tenant will use its best efforts to include in any
contract for construction of improvements with a cost in excess of $100,000 a provision that
general contractor shall indemnify and hold Landlord harmless for any and all loss, damage,
cost, or expense, including, but not limited to, attorneys' fees and court costs through all trial
and appellate levels with respect to personal injury, property damage or both caused by the
general contractor, its subcontractors, agents and employees in connection with performing
such work or any other of its obligations under the applicable contract.
(c) Comprehensive General Liability Insurance. The general contractor performing
any improvements with a cost in excess of $100,000 shall provide, pay for and maintain in
force, during the time such work is being performed, comprehensive general liability insurance
for bodily injury liability and property damage liability with limits of (i) with respect to work
costing more than $100,000 and not exceeding $2,000,000, $2,000,000 per occurrence,
combined single limit, and $4,000,000 in the aggregate and (ii) with respect to work costing
more than $2,000,000, $3,000,000 per occurrence, combined single limit, and $6,000,000 in
the aggregate.
0 (d) Insurance Requirements for Construction Contracts.
(i) Tenant agrees to include the following insurance language in any
agreement it enters into with any contractor(s) performing work with a cost in excess of
$100,000 for Tenant and Tenant further agrees to provide to Landlord, prior to commencement
of the improvements with respect to such contract, certificates of insurance evidencing the
contractor's compliance with the requirements of this section:
(1) Without limiting any of the other obligations or liabilities of
contractor, with respect to work with a cost in excess of $100,000, contractor or Tenant shall
provide, pay for, and maintain in force until all of its work to be performed has been
completed, the insurance coverages set forth herein.
A. Workers' Compensation insurance to apply for all
employees in compliance with the "Workers' Compensation Law" of the State of Florida and
all applicable federal laws.
B. Comprehensive General Liability as provided in
Section 7(c) above.
C. Business Automobile Liability with minimum limits of
Five Hundred Thousand Dollars ($500,000.00) per occurrence combined single limit for
Bodily Injury Liability and Property Damage Liability.
M
0
D. Landlord is to be expressly included as an "Additional
Insured" as its interest may appear.
E. Builder's Risk Insurance for the construction of above
ground buildings or structures or both. The coverage shall be "All Risk" form for one hundred
percent (100%) percent of the completed value, including Landlord as a named insured, with a
deductible of not more than Twenty Five Thousand Dollars ($25,000) for each claim.
(2) If the initial insurance required pursuant to the provisions of this
Section 7 expires prior to the completion of the work, renewal certificates of insurance shall be
furnished to the Landlord thirty (30) calendar days prior to the previous certification's
expiration.
(3) The policy(les) must be endorsed to provide Landlord with thirty
(30) calendar days prior written notice of modification, cancellation or restriction.
(e) Landlord and Tenant shall be expressly included as "Additional Insureds" for
all insurance coverages required of the general contractor required pursuant to the provisions
of this Section 7.
(f) With respect to the insurance to be obtained, the Tenant shall provide to
Landlord not less than ten (10) calendar days prior to commencement of the Improvements at
the Premises, certificates of such applicable insurance evidencing the insurance coverage as
specified above. The required certificates of insurance shall not only name the types of
coverage provided, but also shall refer specifically to this Lease with the type of insurance
which is being furnished, and shall state that such insurance is as required by such sections of
this Lease. If the initial insurance expires prior to the completion of the improvements,
renewal certificates of insurance shall be furnished thirty (30) calendar days prior to the date of
their expiration. Insurance shall not be canceled, modified, or restricted, without thirty (30)
calendar days prior written notice to Landlord, and must be endorsed to provide the same.
(g) Requirements During the Term. The foregoing requirements set forth in this
Section 7 shall be applicable during the Term of this Lease.
(h) Indemnity with Respect to Construction Contracts. Tenant hereby agrees to
indemnify and hold Landlord harmless for any and all loss, damage, cost, or expense, including,
but not limited to, attorneys' fees and court costs through all trial and appellate levels with
respect to personal injury, property damage or both caused by any general contractor, its
subcontractors, agents and employees anising out of, related to or in connection with perforining
any work at the Premises, including, without limitation, with respect to any work with a cost of
less than $100,000. The provisions of this subsection 7(h) shall survive the expiration or
earlier termination of this Lease.
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SECTION 8. OPERATIONAL REQUIREMENTS.
(a) Operating Schedule. During the Term, Tenant shall continuously operate the
marina business conducted on the Premises and keep the business open on a seven day a week
basis between the hours of 8:00 a.m. and 6:00 p.m., except for any State, federal and religious
holidays observed by Tenant.
(b) Quality of Services. Tenant shall conduct its operations in a first class,
business -like manner and in accordance with the terms and conditions of this Lease. Tenant
shall control the conduct, demeanor, performance and appearance of its officers, members,
employees, agents, volunteers, independent contractors, representatives, guests, and invitees
consistent with the operation of a first class business and otherwise in accordance with
applicable law.
SECTION 9. USE OF PREMISES BY LANDLORD.
(a) Civic Center. Landlord shall have the exclusive use of the Civic Center at all
times during the Term for use by Landlord, the Residents, its guests, employees, contractors,
agents and any other persons permitted by Landlord. Notwithstanding anything to the contrary
contained in this Lease, Tenant shall have no obligation to maintain or operate the Civic Center.
(b) Slips F-01 and F-02. Throughout the Term, the City shall have use of Slips F-01
and F-02 (together the " Boatstips") located on the F-dock for special events, tournaments,
marine related or other public safety uses at no cost to Landlord. Landlord shall not, however,
lease or license or otherwise utilize the Boatslips for fees charged to third parties. Landlord may,
at Landlord' s sole cost and expense, reconfigure the Boatslips by the use of temporary floating
docks. When the City is not using the Boatslips (or either of them), Tenant may use either or
both for dockage. Should City not be using the Boatslips and should Tenant desire to use the
Boatslips for dockage, Tenant shall provide City with at least two (2) business days' notice of
such desire, and shall be permitted to utilize the Boatslips pursuant to such notice unless City
advises Tenant within such two (2) business day period that the Boatslips are not available. In the
event that Tenant does utilize the Boatslips in accordance with this subsection 9(b), Landlord can
require Tenant to cease such use and cause the Boatslips to be vacated on at least two (2) business
days' notice.
(c) Boat Launching Rates: The rates charged to Residents of the City for boat
launching for trailered boats shall be subject to the prior written approval of the City Manager.
(d) City Revenues. Landlord shall be entitled to all revenues generated from the Civic
Center and any other City program, service and clients conducted at the Premises.
(e) Restrooms. Landlord, at Landlord's option, shall have the night (but not the
obligation) at any time during the Lease Term to construct a stand alone building at the Premises
is containing approximately 600 square feet for use as public restrooms (the "Restroorn
Building"). The location of the Restroom Building at the Premises shall be reasonably
20
acceptable to Landlord and Tenant. If Landlord elects to construct the Restroom Building, (1) the
Restroom Building shall be constructed in accordance with all applicable requirements of
Governmental Authorities and at Landlord's sole cost and expense and (11) the Restroorn
Building shall be excluded from the definitions of Improvements and Premises in this Lease.
Notwithstanding anything to the contrary contained in this Lease, Tenant shall have no obligation
to maintain or operate the Restroom Building.
SECTION 10. OBLIGATIONS OF THE TENANT.
(a) Garbage. Tenant shall remove from the Premises or otherwise dispose of all
garbage, debris and other waste materials (whether solid or liquid) arising out of the occupancy
of the Premises or out of any operations conducted thereon in accordance with applicable law.
Any of such as may be temporarily stored in the open, shall be kept in suitable garbage and
waste receptacles. When effecting removal of all such waste, Tenant shall comply with all
laws, ordinances, rules, regulations and procedures of all applicable governmental authorities.
The Landlord recognizes that during construction reasonable deviations from this Paragraph
will be required consistent with similar construction practices in Broward County, Florida.
(b) Waste. Tenant shall commit no legal nuisance, waste or injury on the Premises
and shall not do or permit to be done anything which may result in the creation or commission
or maintenance of such material nuisance, waste or legal injury on the Premises.
(c) Odor. Tenant shall not create nor permit to be caused or created upon the
Premises any obnoxious odors or smokes or noxious gases or vapors which would constitute a
real nuisance; provided, however, that fumes resulting from the normal maintenance
operations of vessels and vehicles or normal business operation shall be excepted from this
provision, unless same constitutes a legal nuisance or otherwise is prohibited by applicable
law.
(d) Security Fencing. Tenant agrees to install security fencing which restricts
access to the Boatslips.
SECTION 11. COMPLIANCE WITH GOVERNMENTAL PROCEDURES.
(a) Comply with Governmental Requirements. Tenant shall comply with all
applicable federal, state, county, and municipal laws, ordinances, resolutions and
governmental rules, regulations and orders including the Americans with Disability Act as may
be in effect now or at any time during the Term of this Lease, all as may be amended, which
are applicable to Tenant, the Premises, or the operations conducted at the Premises (excluding
the Civic Center and Restroom Building).
The obligation of the Tenant to comply with governmental requirements is
provided herein for the purpose of assuring proper safeguards for the protection of persons and
property on the Premises. Such provision is not to be construed as a submission by the
Landlord to the application to itself of such requirements or any of them.
21
E
(b) Entry. The Tenant agrees to the extent required by applicable law, to permit
reasonable entry, inspection, and testing, upon reasonable advance notice during business
hours (unless an emergency exists), by inspectors of any federal, state, county and municipal
agency having jurisdiction under any law, rule, regulation, or order, applicable to the Premises
or the operations at the Premises. This right of entry, inspection and testing shall impose no
duty on the Landlord to take any such action and shall impart no liability on the Landlord
should it not take any such action.
SECTION 12. MAINTENANCE AND REPAIR.
(a) Tenant shall throughout the Term assume the entire responsibility and shall
relieve the Landlord from all responsibility for all repair, maintenance, replacements and
capital improvements whatsoever on the Premises. Notwithstanding anything contained herein
to the contrary, Tenant shall have no responsibility to repair, replace or maintain the Civic
Center or the Restroorn Building. Tenant, at its sole cost and expense, throughout the Term,
will take good care of the Premises, and will put, keep and maintain the Premises and the
contents therein or thereon in good and safe order and condition as a first class marina facility,
ordinary wear and tear excepted, and make all repairs and maintenance therein and thereon,
interior and exterior, structural and nonstructural, ordinary and extraordinary, foreseen and
unforeseen, necessary to keep the same in good and safe order and condition, howsoever the
necessity or desirability therefor may occur, and whether or not necessitated by obsolescence
or defects, latent or otherwise; provided, however, that the foregoing exception for ordinary
wear and tear shall in no event excuse Tenant's obligat ion to make all " repairs" and maintain
the Premises as a first class marina facility throughout the Term. Tenant will not commit or
suffer, and will use all reasonable precautions to prevent waste, damage or injury to the
Premises. When used in this Section 12, the term "repairs" includes all necessary
replacements, renewals, alterations and additions. All repairs made by Tenant will be made in
compliance with all applicable laws, regulations and rules of the City, Broward County,
Florida and all other Governmental Authorities.
(b) Without limitation of any of Tenant's obligation to maintain, repair and replace
the. Premises pursuant to the provision of this Lease, throughout the Term, Tenant shall be
responsible to maintain, repair and replace the four (4) boat ramps (the "Boat Ramps") located
at the Premises in good and safe order and condition and in accordance with the requirements of
all applicable Governmental Authorities and the standards established by the Florida Boating
Improvement Program and the Broward Boating Improvement Program. Promptly upon the
execution and delivery by Landlord and Tenant of this Amended and Restated Lease Agreement,
Tenant agrees to commence and thereafter diligently, continuously and expeditiously proceed to
complete the repairs currently required to be made to Boat Ramps so as to bring the Boat Ramps
in compliance with the provisions of this subsection 12(b). No Boat Ramp shall be closed by
Tenant for repairs for a period exceeding thirty (30) consecutive calendar days. Tenant shall
promptly provide Landlord with copies of all maintenance records and information regarding the
maintenance, repair and replacement of the Boat Ramps. Without limitation of Landlord's
access and inspection rights as contained in subsection 17(a) of this Lease, Landlord may, at its
22
option, cause or permit the City's Marine Division, State of Florida officials and/or Broward
County officials to conduct underwater and/or visual inspections of the Boat Ramps at all
reasonable times and upon reasonable advance notice to Tenant in order to confirm that the Boat
Ramps are in good and safe order and condition and in compliance with the requirements of all
applicable Goven-tmental Authorities and the standards established by the Florida Boating
Improvement Program and the Broward Boating Improvement Program. Furthermore, Landlord
may, at its option, at intervals of not less than five (5) years, require Tenant to provide Landlord,
at Tenant's sole cost and expense, with an inspection report regarding the condition of the Boat
Ramps, which report shall be prepared by a certified professional engineer or other party selected
by Landlord which is qualified to inspect boat ramps.
(c) Tenant, at its sole cost and expense, also will keep clean and free from dirt,
accumulations of standing water, rubbish, obstructions and encumbrances, the sidewalks,
grounds, parking facilities, yacht basin, areas, chutes, alleys and curbs comprising, in front of
or adjacent to, the Premises.
(d) Landlord will have no duty or obligation to make any alteration, change,
improvement, replacement, restoration or repair to or on, or to demolish, any Improvement.
Tenant assumes the full and sole responsibility for the condition, operation, repair, alteration,
improvement, replacement, maintenance and management of the Premises.
0 SECTION 13. INSURANCE REQUIREMENTS FOR TENANT.
(a) Property Insurance. Tenant shall, during the Term of this Lease, insure and
keep insured to the extent of not less than 100% of the insurable replacement value thereof, all
buildings, structures, fixtures and attached equipment on the Premises. Notwithstanding
anything to the contrary contained in this Lease, Tenant shall have no obligation to maintain
casualty insurance for the Civic Center or Restroom. Building.
(b) Comprehensive General Liability Insurance. Tenant shall, during the Term of
this Lease, maintain comprehensive general liability insurance to protect against bodily injury
liability and property damage in an aggregate amount of not less than Five Million Dollars
($5,000,000) per occurrence combined single limit. Coverage must be afforded on a form no
more restrictive than the latest edition of the Comprehensive General Liability Policy.
(c) Excess Liability Insurance. Tenant shall, during the Term of this Lease,
maintain excess liability coverage with limits of not less than Ten Million and No/100 Dollars
($10,000,000.00).
(d) Business Automobile Liability Insurance. Tenant shall, during the Term of this
Lease, maintain business automobile liability insurance in an amount not less than One Million
Dollars ($1,000,000) per occurrence combined single limit, for bodily injury and property
damage liability. Coverage must be afforded on a form no more restrictive than the latest
edition of the Business Automobile Liability policy, without restrictive endorsements, as filed
by the Insurance Services Office, and must include: Owned, Non -owned and Hired vehicles.
23
(e) Environmental Liability Insurance. Tenant shall, during the Term of this Lease,
maintain environmental liability insurance in the amount of One Million Dollars ($1,000,000)
per claim, with respect to environmental contamination occurring ("sudden and accidental")
from and after the Effective Date (i.e., excludes known and unknown preexisting conditions as
of the Effective Date). Such policy shall include a One Million Dollar ($1,000,000) annual
policy aggregate naming Landlord as an additional named insured as its interest may appear.
(0 Workers' Compensation and Employer's Liability Insurance. Tenant shall,
during the Term of this Lease, maintain workers' compensation and employer's liability
insurance to apply for all employees in compliance with the "Workers' Compensation Law" of
the State of Florida and all applicable federal laws. In addition, the policy(ies) must include:
Employers' Liability with a limit of Five Hundred Thousand Dollars ($500,000) each accident.
(g) Rental Loss (Business Interruption) Insurance. Tenant shall, during the Term of
this Lease, maintain rent loss (business interruption) insurance in an amount equal to twelve
(12) months of not less than ninety percent (90%) of the then applicable Rent payable by
Tenant. Such insurance will be carried in favor of Landlord and Tenant, as their respective
interests appear, and the proceeds thereof will be applied to Rent payable by Tenant hereunder.
If the proceeds of such rental -loss insurance are in excess of $250,000.00, then the proceeds
thereof shall be paid to the First Leasehold Mortgagee, or if there is no First Leasehold
Mortgage, to Depository, to be applied to Rent payable by Tenant hereunder.
(h) Certificates. Tenant shall furnish to the Landlord, certificates of insurance or
endorsements evidencing the insurance coverages specified by this Section 13 on or prior to
the Effective Date of this Lease. The required certificates of insurance shall name the types of
policies provided, refer specifically to this Lease, and state that such insurance is as required
by this Lease. All policies of such insurance and renewals thereof shall insure the Landlord
and Tenant as their interests may appear, and shall provide that the loss, if any, shall be
adjusted with and payable to the Tenant and Landlord (as their interests may appear), except as
otherwise provided in Section 14 hereof. All insurance required pursuant to the terms of this
Lease shall be carried with responsible insurance carriers legally doing business in Florida and
reasonably acceptable to Landlord. Each such company must maintain a rating of not less than
A-X in the then most current annual "Best's Key Rating Guide."
(i) Depositor . The loss under all insurance policies required by any provision of
this Lease insuring against damage to the Premises by fire or other casualty will be payable to
(i) the First Leasehold Mortgagee (hereinafter defined) to be used for the Restoration
(hereinafter defined) of the Premises in accordance with the provisions of this Lease, or (ii) if
there is no First Leasehold Mortgage, then to Depository, unless such loss is less than
$250,000.00, and Tenant is not then in default of this Lease, in which event, subject to the
terms of any first mortgage encumbering Tenant's leasehold interest in the Premises (a "First
Leasehold Mortgage"), the loss will be payable directly to Tenant to be used in accordance
with the provisions of Section 14 hereof.
24
0) Cancellation. Coverage is not to cease and is to remain in force throughout the
Term of this Lease and until all performance required hereunder is completed. Tenant shall
provide Landlord with copies of all renewal certificates prior to the expiration date of any such
insurance policies being renewed. If any of the insurance coverages will expire prior to the
termination of this Lease, copies of renewal policies shall be furnished prior to the date of their
expiration.
(k) Deficiencies. When such policies or certificates have been delivered by Tenant
or Landlord as aforesaid and at anytime thereafter, Landlord may notify Tenant in writing that,
in the reasonable opinion of Landlord the insurance represented thereby does not conform with
the requirements of this Section either because the amount or because the insurance company
or for any other reason does not comply, and the Tenant shall have thirty (30) calendar days to
cure such defect to the extent required pursuant to this Lease.
(1) Review of Coverage. The aforesaid minimum limits of insurance shall be
reviewed from time to time by Landlord (but no more frequently than every five (5) Lease
Years) and may be adjusted if Landlord reasonably determines that such adjustments are
necessary to protect Landlord's interest, provided such coverages shall not exceed the amount
of coverage required at the time of said review by similar quality projects in Broward County,
Florida.
(in) Service of Process. The insurance shall be written by companies authorized to
do business in the State of Florida and having agents upon whom service of process may be
made in the State of Florida.
(n) Continued Obligations. Compliance with the foregoing requirements shall not
relieve the Tenant of its liability and obligations under any other provision of this Lease.
SECTION 14. DAMAGE TO OR DESTRUCTION OF PREMISES.
(a) Removal of Debris. If the Improvements or any part thereof shall be damaged
by fire, the elements, or other casualty, Tenant shall promptly remove, or cause to be
promptly removed, all debris resulting from such damage from the Premises, and Tenant shall
promptly take such actions and cause such repairs to be made to the Premises as will place the
Premises in a neat and orderly condition and as are necessary for the safety of persons entering
upon the Premises. To the extent, if any, that the removal of debris under such circumstances
is covered by Tenant' s, insurance, the proceeds thereof shall be paid to Tenant for such
purpose.
(b) Damage or Destruction to the Premises. If all or any part of any of the
Improvements are destroyed or damaged in whole or in part by fire or other casualty (including
any casualty for which insurance was not obtained or obtainable) of any kind of nature, ordinary
or extraordinary, foreseen or unforeseen, Tenant will give to Landlord prompt notice thereof, and
Tenant, whether or not each and every mortgagee holding a mortgage encumbering Tenant's
leasehold interest in the Premises permits insurance proceeds to be used for such repairs,
25
alterations, restorations, replacements and rebuilding (collectively, "Restoration"), as promptly
as is reasonable under the circumstances will repair, alter, restore, replace and rebuild
(collectively "Restore") a similar marina facility in accordance with the Approved Conceptual
Plans, at least to the extent of the value and as nearly as possible to the character of the
Improvements existing immediately prior to such occurrence. Landlord, in no event, will be
called upon to Restore any Improvements now or hereafter existing or any portion thereof or to
pay any of the costs or expenses thereof.
(c) Depository.
(1) Subject to the provisions of subsection 14(e) hereof, the holder of the
First Leasehold Mortgage (the "First Leaschold Mortgagee"), or, if there is no First Leasehold
Mortgage, Depository, will pay over to Tenant from time to time, upon the following terms, any
monies which are received or made available by the First Leasehold Mortgagee or Depository, as
applicable, from insurance provided by Tenant (other than Rental Loss (Business Interruption)
Insurance) or cash and the proceeds of any security deposited with the First Leasehold
Mortgagee or Depository, as applicable, pursuant to subsection 14(e) hereof (collectively, the
"Restoration Funds") but, in no event, to any extent or in any sum exceeding the amount
actually collected by the First Leasehold Mortgagee or Depository, as applicable, upon the loss;
provided, however, that the First Leasehold Mortgagee or Depository, as applicable, before
paying such monies over to the Tenant, will be entitled to reimburse itself to the extent, if any, of
the necessary and proper expenses paid or incur -red by the First Leasehold Mortgagee or
Depository, as applicable, in the collection of such monies. The First Leasehold Mortgagee or
Depository, as applicable, will pay to Tenant, as hereinafter provided, the Restoration Funds, for
the purpose of the Restoration to be made by Tenant to Restore the Improvements in accordance
with the Approved Conceptual Plans as nearly as possible at least to the extent of the value and
to the character of the Improvements existing immediately prior to such fire or other casualty.
(11) Prior to the making of any Restoration, Tenant will furnish Landlord with
an estimate of the cost of such Restoration, prepared by a duly licensed architect, approved by
Landlord, which approval will not be unreasonably withheld. Landlord, at its election, may
engage a licensed professional engineer or registered architect to prepare its own estimate of the
cost of such Restoration.
(111) The Restoration Funds will be paid to Tenant fi-om time to time thereafter
in installments as the Restoration progresses, upon requisitions to be submitted by Tenant to the
First Leasehold Mortgagee, or, if there is no First Leasehold Mortgage, to Depository, and
Landlord showing the cost of labor and material incorporated in the Restoration, or incorporated
therein since the last previous requisition, and paid for by Tenant, and the Tenant's estimate of
the cost of labor and material required to complete the Restoration. If any vendor's, mechanic's,
laborer's, construction or materialman's lien is filed against the Premises or any part thereof,
Tenant will not be entitled to receive any further installment until such lien is satisfied or
otherwise discharged.
(iv) The amount of any installment to be paid to Tenant will be such
proportion of the total Restoration Funds received by the First Leasehold Mortgagee or, if there
is no First Leasehold Mortgage, Depository, as the cost of labor and materials theretofore
W,
incorporated by Tenant in the Restoration bears to the total estimated cost of the Restoration by
Tenant, less (1) all payments theretofore made to Tenant out of the Restoration Funds and (11)
10% of the amount so determined.
(v) Upon completion of and payment for the Restoration by Tenant, the
balance of any and all insurance proceeds will be paid over to Tenant subject to the rights of the
First Leasehold Mortgagee.
(d) Payment of Restoration Fund.
The following will be conditions precedent to each payment of the Restoration
Funds made to Tenant as provided in subsection 14(c) above:
(1) There will be submitted to the First Leasehold Mortgagee or, if there is no
First Leasehold Mortgage, Depository, and Landlord the certificate of the aforesaid architect
stating that (1) the sum then requested to be withdrawn either has been paid by Tenant or is Justly
due to contractors, subcontractors, materialmen, engineers, architects or other persons (whose
names and addresses will be stated) who have rendered or furnished certain services or materials
for the work and giving a briief description of such services and materials and the principal
subdivisions or categories thereof and the several amounts so paid or due to each of said persons
in respect thereof, and stating in reasonable detail the progress of the work up to the date of said
certificate; (2) no part of such expenditures has been or is being made the basis, in any previous
or then pending requisition, for the withdrawal of Restoration Funds or has been made out of the
is Restoration Funds received by Tenant; (3) the sum then requested does not exceed the value of
the services and materials described in the certificate; and (4) the balance of the Restoration
funds held by the First Leaschold Mortgagee or, if there is no First Leasehold Mortgage,
Depository, will be sufficient upon completion of the Restoration to pay for the same in full, and
stating in reasonable detail the estimate of the cost of such completion;
(11) There will be furnished to Landlord a certificate of a duly licensed title
insurance company reasonably satisfactory to Landlord, or other evidence reasonably
satisfactory to Landlord, showing that there has not been filed any vendor's, mechanic's,
laborer's, construction or matenialman's statutory or other similar lien affecting the Premises or
any part thereof, which has not been discharged of record, except such as will be fully discharged
upon payment of the amount then requested to be withdrawn; and
Lease.
(111) At the time of making such payment, Tenant will not be default of this
(e) Insufficient Net Insurance Proceeds.
If the estimated cost of any Restoration exceeds the net insurance proceeds
available to Tenant, then, prior to the commencement of any Restoration, Tenant will deposit
with the First Leasehold Mortgagee or, if there is no First Leasehold Mortgage, Depository, a
letter of credit, bond, cash or other security satisfactory to Landlord in an amount equal to the
deficiency, to be held and applied by the First Leasehold Mortgagee or, if there is no First
Leasehold Mortgage, Depository, in accordance with the provisions of subsection 14(c) hereof,
27
as security for the completion of the Restoration, free of vendors', mechanics', laborers',
construction or materialmen's statutory or other similar liens.
(0 No Rent Abatement.
This Lease will not tenninate or be forfeited or be affected in any manner, and
there will be no reduction or abatement of the Rent payable hereunder, by reason of damage to or
total, substantial or partial destruction of any of the Improvements or any part thereof and
Tenant, notwithstanding any present or future law or statute, waives any and all rights to quit or
surrender the Premises or any part thereof Tenant expressly agrees that its obligations
hereunder, including the payment of Rent, will continue as though the Improvements had not
been damaged or destroyed and without abatement, suspension, diminution or reduction of any
kind.
(g) Civic Center and Restroom Buildin .
Notwithstanding anything to the contrary contained in this Section 14, Tenant
shall have no obligation to restore the Civic Center or Restroom Building if either or both of the
Civic Center or Restroom Building are damaged in whole or in part by fire or other casualty.
SECTION 15. CONDEMNATION/TRANSFER OF PROPERTY FOR OTHER PUBLIC
PURPOSES.
(a) General. There may come a time when the Landlord or another governmental
or quasi -governmental authority desires to utilize or acquire all or part of the Premises for a
public purpose, either permanently or temporarily. In that event, Landlord reserves the right
to determine that such public purpose is appropriate, to determine the area of such Premises
which is appropriate (including the estate in such Premises), and to transfer the use or title to
such authority, subject to (and nothing herein shall prohibit) the Tenant's right to contest any
such taking and the appropriateness of any such taking. To that end, the following provisions
are designed to give the Landlord this discretion, but at the same time, reserve to the Tenant
the ability to obtain fair compensation for the impact of the transfer upon the Tenant's
interests, and reserve the Tenant's right to contest any such taking and the appropriateness of
any such taking.
(b) Rights and Obligations Related to Transfer of Property for Other Public
Purposes. Landlord shall not be obligated to raise any defense to any proposed acquisition or
use of the Premises by any governmental or quasi -governmental authority. Landlord's only
obligation with respect to such acquisition shall be to reserve the Tenant's rights to obtain
compensation. In the event that the Tenant and the governmental or quasi -govern -mental
authority cannot come to agreement as to compensation, an eminent domain suit shall be filed
with respect to the Tenant's interest by the governmental or quasi -governmental authority so as
to provide a forum for the resolution of the compensation issues in accordance with the ensuing
terms.
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(c) Total - Permanent. If at any time during the Term of this Lease, the entire
Premises or, as determined among the, parties, such a substantial portion thereof, as would
render the balance of the Premises not suitable for the intended public and private uses
enumerated in this Lease shall be taken by transfer or exercise of eminent domain power by
any competent authority, the Lease shall terminate upon the date that possession is surrendered
to the condemning authority, at which time Rent and other charges shall be apportioned, except
that this provision shall not release the parties from any liability or claims arising prior to the
date of such termination nor other obligation in this Lease that expressly survives termination
of this Lease. The Tenant shall first receive the Tenant's interest in the value of its leasehold
interest and the value of the Improvements, subject to the rights of any leasehold mortgagee, or
any other valid claims allowable by law, but in no event shall such amount exceed the
compensation award from the condemning authority. Thereafter, the Landlord shall be entitled
to the balance of the condermiation award (i.e. the interest in the fee and the reversionary
interest in the Improvements).
(d) Partial - Permanent. In the event of a partial permanent taking by transfer or
exercise of eminent domain power that does not result in a termination of this Lease, then
Tenant shall receive an equitable reduction in Minimum Rent based upon the impact of such
taking. Tenant and Landlord shall be entitled to such compensation from the condemning
authority as may be allowed under applicable law.
(e) Total - Temporary. If the whole of the Premises, or such portion thereof as
would render the balance of the Premises not suitable for the intended public and private uses
enumerated in this Lease, shall be taken by transfer or exercise of eminent domain for a period
of one (1) year or more, then, at the option of Tenant, upon written notice to Landlord, this
Lease shall terminate upon the date possession is surrendered to the condemning authority.
Landlord shall be entitled to such compensation from the condemning authority as may be
allowable in accordance with applicable law. After first paying such amounts as may be due
any leasehold mortgagee, or for any other valid claims, Tenant shall be entitled to such
compensation from the condemning authority as may be allowable in accordance with
applicable law. If Tenant does not elect to terminate this Lease, or if the whole or a substantial
portion of the Premises is taken for less than one (1) year, the Rent shall be tolled during the
period of such taking, providing the Tenant is receiving no revenue from the Premises during
this period. If Tenant does receive revenue from the Premises during this period, then
Minimum Rent will be equitably abated. Landlord and Tenant shall be entitled to such
compensation from the condemning authority as may be allowed under applicable law.
(f) Partial - Temporary. If a portion of the Premises that is less than such portion
thereof as would render the balance of the Premises not suitable for the intended public and
private uses enumerated in this Lease as aforesaid is taken by transfer or exercise of eminent
domain for a period of one (1) year or more, then Tenant, at its election, shall be entitled to an
equitable abatement of Minimum Rent based upon the impact of such taking, during said
period. At such time as the right to possession is restored to Tenant, the Tenant shall
thereafter pay one hundred percent (100%) of the scheduled Rent. Landlord and Tenant shall
WE
be entitled to such compensation from the condemning authority as may be allowed under
applicable law, subject to the rights of any leasehold mortgagee.
(g) Condemnation Dispute Resolution. Should Landlord and Tenant be unable to
agree as to the division of any singular award or amount of any reduction of Rent or other
charges, such dispute shall be submitted for resolution to the court exercising jurisdiction of
the condemnation proceeds, each party bearing its respective attorneys' fees and costs for such
determination. For purposes of this Section 15, property conveyed in lieu of any taking or
condemnation shall be deemed taken by the governmental entity pursuant to a condemnation.
SECTION 16. INDEMNITY.
Tenant shall, subject to the terms of this Lease, at all times hereafter indemnify, hold
harmless and defend Landlord and its respective administrators, officers, officials, directors,
agents, and employees against any and all claims, losses, liabilities, and expenditures of any
kind, including reasonable attorneys' fees and costs at both the trial and appellate levels, court
costs, and expenses, caused by negligent act or omission of Tenant, its employees, occupants,
marina users, contractors, subcontractors, consultants, agents, servants, or officers, or
accruing, resulting from, or related to Tenant's use of the Premises, occupancy of the
Premises or both or breach of Tenant's obligations under this Lease including, without
limitation, any and all claims, demands, or causes of action of any nature whatsoever resulting
from injuries or damages sustained by any person or property.
Tenant further agrees to pay all fees, costs and expenses in defending against any
claims made against Landlord with counsel reasonably acceptable to Landlord in connection
with this Lease, recognizing that such counsel must be competent and not have a conflict of
interest in connection with the matter as reasonably determined by Landlord. Landlord agrees
that the law firm of Kluger, Peretz, Kaplan & Berlin, P.L. is acceptable. In connection with
any defense by Tenant, Landlord shall have the right to consent to any settlement of same;
provided that such consent shall not be unreasonably withheld. Tenant and Landlord shall give
prompt and timely notice of any claim made or suit instituted which, in any way, directly or
indirectly, contingently or otherwise, affects or might affect either party.
The provisions of this Section shall survive the expiration or earlier termination of this
Lease.
SECTION 17. RIGHTS OF ENTRY RESERVED.
(a) Access. The Landlord, by its officers, employees, agents, representatives and
contractors shall have the right at all reasonable times and upon reasonable advance notice to
enter upon the Premises for the purpose of inspecting the same, for observing the performance
by the Tenant of its obligations under this Lease and for the doing of any act or thing which
the Landlord may be obligated or have the right to do under this Lease or otherwise, subject to
30
the provisions of this Lease, provided in connection with such access, such party shall use
reasonable efforts to minimize disruption to the operations being conducted upon the Premises.
During the last Lease Year period preceding the termination of this Lease, the
Landlord may place and maintain on the Premises (in locations reasonably acceptable to
Landlord and Tenant) " To Let" signs, which signs the Tenant shall permit to remain without
molestation.
(b) Access to Civic Center. At all times during the Term, Landlord and its
Residents, licensees, invitees, agents, contractors and employees shall have non-exclusive
access through the Premises for ingress and egress to and from the Civic Center, Restroom
Building and Boatslips through, over and across the Premises. During the Term, Landlord and
its Residents, licensees, invitees, agents, contractors and employees, shall also have the right
to use the following parking spaces located at the Premises in connection with their use of the
Civic Center and Boatslips: (1) at least fifty (50) parking spaces located south of the Civic
Center and north of the enclosed boat storage building, on a non-exclusive basis (the "Non -
Exclusive Civic Center Parking Spaces") and (ii) nine (9) parking spaces located on the south
side of the Civic Center (and shown on Exhibit "B") on an exclusive basis (the "Exclusive
Civic Center Parking Spaces"). Landlord, at Landlord's option, shall be entitled to (i)
designate any of the Exclusive Civic Center Parking Spaces for disabled use and (ii) to mark or
post the Exclusive Civic Center Parking Spaces with signs indicating that such spaces are only
for the use of the City and/or its Residents, licensees, invitees, agents, contractors and
employees. Tenant shall use its best efforts to ensure that the use of the Non -Exclusive Civic
Center Parking Spaces by the City and its Residents, licensees, invitees, agents, contractors
and employees is available upon 24 hours advance notice to Tenant. Tenant shall not use the
Non -Exclusive Civic Center Parking Spaces for storage of boats or trailers. Tenant agrees that
it will reasonably cooperate with Landlord and its Residents, licensees, invitees, agents,
contractors and employees, with respect to their parking needs in connection with any use of
the Civic Center, as close to the Civic Center as possible, as has been done in the past.
(c) Maintenance. Without limiting the generality of the foregoing, the Landlord, by
its officers, employees, agents, representatives, contractors and furnishers of utilities and other
services, shall have the right upon reasonable advance notice (except in case of emergency, in
which case no notice is necessary), at its own cost and expense, for its own benefit or for the
benefit of others than the Tenant, to maintain existing utility systems and to enter upon the
Premises at all reasonable times to make such repairs, replacements or alterations thereto as
may, in the reasonable opinion of the Landlord, be deemed necessary or advisable and from
time to time to maintain such systems or parts thereof and in connection with such
maintenance.
(d) Minimum Disrqpji�on. Landlord agrees and shall take such action as reasonably
necessary to minimize any disruption caused in connection with Landlord's activities upon the
Premises and in the exercise of such rights of access, repair, alteration or construction, the
31
Landlord shall not unreasonably interfere with the actual use and occupancy of the Premises by
the Tenant.
(e) No Eviction. The reasonable exercise of any or all of the foregoing rights by
the Landlord or others to the extent permitted by this Lease shall not be or be construed to be
an eviction of the Tenant nor be made the grounds for any abatement of Rent nor any claim or
demand for damages, consequential or otherwise, unless Landlord breaches its covenants with
respect to such access as provided in this Lease.
(f) Police Powers. Nothing herein contained shall be deemed to in any way limit
the Landlord in the exercise of its police and regulatory powers or its powers of eminent
domain.
(g) Canal Dredgin . Landlord, at Landlord's option, and Tenant, at Tenant's option,
shall have the right (but not the obligation) at any time during the Lease Tenn to dredge the
finger canals and the cut-off canal at the Premises in the approximate locations shown on
Exhibit "D" attached hereto. Such dredging shall be perforined by Landlord or Tenant, at
Landlord's or Tenant's (as appropriate) sole cost and expense, and in accordance with the
requirements of all applicable Govemmental Authorities. Any such dredging shall not be
included in the definition of New Additional Improvements in this Lease.
0 SECTION 18. ASSIGNMENT; SUBLETTING AND MORTGAGING.
(a) Assignment. Provided Tenant is not otherwise in default under this Lease at the
time of such Assignment, Tenant may sell, convey, transfer or assign (all of the foregoing
being deemed as an "Assignment") all of its interest in the Premises and the Improvements,
with the prior written consent of Landlord (which shall not be unreasonably withheld or
delayed), provided that no such Assignment shall be deemed valid or binding upon Landlord,
and the assigning Tenant shall not be released from its obligations hereunder, until Landlord
has consented to such Assignment, there shall have been delivered to Landlord a true copy of
the instrument in a form and substance reasonably acceptable to Landlord in all respects
effecting such Assignment, together with the address of each assignee therein named, and an
original counterpart of an agreement in which each such assignee assumes and agrees to
perform all the terms, covenants and conditions of this Lease on Tenant's part to be
performed. After the aforesaid instrument has been delivered to Landlord and Landlord has
consented to such Assignment, then upon such assignee assuming the obligations of this Lease
for all obligations arising from and after the date of such assumption, the assigning party shall
be released of all further obligations under this Lease for the period from and after the date of
such assumption. For purposes of this Section, an "Assignment" will include: (i) any transfer
of the Lease by merger, consolidation or liquidation, or by operation of law, or (ii) if Tenant is
a corporation, any change (other than to Affiliates of existing shareholders or partners of
Tenant) in ownership or power to vote a majority of the outstanding voting stock thereof from
those controlling the power to vote such stock on the date of the Lease, or (Ili) if Tenant is a
limited or a general partnership or joint venture, or a limited liability company, any transfer of
an interest in the partnership or joint venture (other than to an existing partner or any Affiliates
32
of existing partners) of greater than a majority of such partnership or joint venture interest
from the interest of such partnership or joint venture on the date of the Lease.
The factors upon which Landlord may base its decision on whether to grant
consent under this Section will include, but not be limited to: (i) whether the proposed
assignee meets standards of creditworthiness and financial resources and responsibility as
originally expected of the prior Tenant, (ii) whether the proposed assignee has the ability to
perform the obligations as originally anticipated, (iii) whether the proposed assignee has prior
related business experience for operating or owning property (or both) with uses similar to
those contemplated for the Premises, and (iv) whether the Premises will be used only for the
purposes permitted by this Lease. This Section shall apply to each subsequent Assignment of
Tenant's interest.
No partial Assignments of this Lease shall be permitted.
(b) Subletting. Except as hereinafter provided with respect to Occupancy
Agreements, Tenant shall not Sublease portions or the whole of the Premises and the
Improvements, without the prior written consent of Landlord, which consent in any and all
circumstances may be withheld in the sole and absolute discretion of Landlord.
Tenant shall be permitted to enter into Occupancy Agreements which shall
contain a self -operative provision that such Occupancy Agreement is subject and subordinate to
this Lease, the rights of Landlord under this Lease, and any modifications and extensions of
this Lease.
No Sublease or Occupancy Agreement shall relieve Tenant from liability for any
of its obligations hereunder, and in the event of any such Sublease, Tenant shall continue to
remain primarily liable for and continue to make payments for the payments required to be
made pursuant to this Lease and for the performance and observance of the other agreements
on its part herein contained.
(c) Leasehold Mortgag . Provided Tenant is not otherwise in default of this Lease
at such time, Tenant shall have the right to mortgage its interest in this Lease ("Leasehold
Mor tgage") provided that any such mortgage shall be subject to the provisions of this Lease.
If Tenant shall have executed and delivered a Leasehold Mortgage and the holder thereof
("Leasehold Mortgagee") shall have notified Landlord to such effect giving its name and
address:
(1) Landlord shall, in the manner provided for herein for the giving of
notices, give notice to such Leasehold Mortgagee of each notice of
default given to Tenant under this Lease.
40 (2) Such Leasehold Mortgagee shall have the right, for a period of thirty
(30) days more than is given to Tenant, to remedy or cause to be
33
remedied any default which is the basis of a notice and Landlord shall
accept performance by such Leasehold Mortgagee as performance by
Tenant.
(3) In case of default by Tenant under this Lease, other than a default in the
payment of money or a default susceptible of being cured by the payment
of a sum of money, Landlord shall take no action to effect a termination
of this Lease by service of a notice or otherwise, without first giving to
such Leasehold Mortgagee prior written notice and such time as the
Leasehold Mortgagee reasonably requires to cure such default, not to
exceed one (1) year, within which either:
to obtain possession of the Premises and the Improvements
(including possession by a receiver) and to cure such default
when such Leasehold Mortgagee has either obtained possession of
the Premises and the Improvements or has the right and ability to
cure same (acting reasonably); or
(ii) to institute and complete foreclosure proceedings or otherwise
acquire Tenant's leasehold estate under this Lease and cure upon
obtaining possession.
The provisions of this subdivision 3 are conditioned on the following:
(A) The Leasehold Mortgagee shall not be an Affiliate of
Tenant.
(B) If the Leasehold Mortgagee is an Institutional Lender and
within the thirty (30) day period referred to in subdivision
2, it shall: (i) notify Landlord of its election to proceed
with due diligence promptly to acquire possession of the
Premises and the Improvements or to foreclose the
Leasehold Mortgage or otherwise to extinguish Tenant's
interest in this Lease; and (ii) deliver to Landlord an
instrument in writing duly executed and acknowledged
wherein the holder of the Leasehold Mortgage agrees that
(x) during the period that such holder shall be in
possession of the Premises and the Improvements and/or
during the pendency of any such foreclosure or other
proceedings (which shall be prosecuted diligently) and
until the interest of Tenant in this Lease shall terminate, as
the case may be, it will pay or cause to be paid to
Landlord all Rent and other sums then due (including past
due) and from time to time becoming due under this
Lease; and (y) if delivery of possession of the Premises
34
and the Improvements shall be made to such Leasehold
Mortgagee (or to its nominee), whether voluntarily or
pursuant to any foreclosure or other proceedings or
otherwise, such holder shall, promptly following such
delivery of possession, perform or cause such nominee to
perform, as the case may be, all the covenants and
agreements herein contained on Tenant's part to be
performed to the extent that Tenant shall have failed to
perform the same to the date of delivery of possession, as
aforesaid. Furthermore, if the Leasehold Mortgagee is
not an Institutional Lender having assets in excess of One
Hundred Million Dollars ($100,000,000) (or its nominee)
and it elects to exercise the rights granted under this
subdivision 3, such Leasehold Mortgagee shall deliver to
Landlord within such thirty (30) day period referred to in
subdivision (2), security sufficient, in Landlord's
reasonable opinion, to assure curing of such defaults.
Upon such extinguishment of Tenant's interest in this
Lease and such performance by such holder or such
nominee, or by any purchaser of this Lease pursuant to
any foreclosure proceeding, Landlord's right to serve a
notice of election to end the term of this Lease based upon
any default which is not within the power of such holder
or its nominee or such purchaser to perform shall be
deemed to be and shall be waived as to such Leasehold
Mortgagee (its successors or assigns), but Landlord
reserves its rights against the original Tenant. Nothing
herein contained shall affect the right of Landlord, upon
the subsequent occurrence of any default by Tenant, to
exercise any right or remedy herein reserved to Landlord,
subject to the rights of the Leasehold Mortgagee under
this Section with respect to such default.
(4) Landlord, without prior written consent of the Leasehold Mortgagee,
shall not (a) consent to or accept any voluntary cancellation, termination
or surrender of this Lease, whereby Landlord shall have the right to
accept any such cancellation, termination or surrender of this Lease, or
(b) amend this Section 18 or otherwise materially amend or modify this
Lease. Additionally, in the event that the Lease is terminated by result
of any action (including rejection of the Lease in any bankruptcy
proceeding) other than as provided for herein, and if Leasehold
Mortgagee shall not have been provided with the opportunity to cure a
default and acquire the Tenant's leasehold interest in accordance with
subdivisions (2) or (3) above, then in that event Landlord shall give
Leasehold Mortgagee notice of such event and Leasehold Mortgagee
35
shall have thirty (30) days from its receipt of such notice in which to
enter in to a new lease with the Landlord on the same terms and
conditions of this Lease, for a term which is co -terminus with the Term
of this Lease.
(d) Estoppel Information. Landlord shall, from time to time, upon reasonable
written request, provide a Leasehold Mortgagee with estoppel information as to the status of
this Lease. Tenant and all Leasehold Mortgagees acknowledge and agree that any assignment
of its interest as Tenant to,any Leasehold Mortgagee does not give the Leasehold Mortgagee or
its assignee any lien or encumbrance upon the fee simple ownership and interest in the
Premises which is vested in Landlord.
(e) Confirmation. Any mortgage on Tenant's leasehold or any Sublessee's
subleasehold interest shall be subject to the foregoing provisions and shall not encumber the fee
simple title of the Landlord.
SECTION 19. DEFAULT, TERMINATION.
(a) Default. If any one or more of the following events shall occur, same shall be
an event of default under this Lease (an " Event of Default"):
(i) Tenant shall voluntarily abandon the Premises or discontinue its marina
business operations on the Premises for a period of thirty (30) consecutive calendar days, other
than as a result of casualty, condemnation or acts of force majeure; or
(11) Any lien, claim or other encumbrance which is filed against the
Landlord' s fee simple title to the Premises (other than that created by or through Landlord) is
not removed, within thirty (30) calendar days after the Tenant has received notice thereof, or
(iii) The Tenant shall fail to pay the Rent when due to the Landlord and
Tenant shall continue in its failure to make any such payments for a period of ten (10) calendar
days after written notice is given to make such payments; or
(iv) The Tenant shall fail to make any other payment required hereunder
when due to the Landlord and shall continue in its failure to make any such other payments
required hereunder for a period of ten (10) calendar days after written notice is given to make
such payments; or
(v) The Tenant shall fall to keep, perform and observe each and every non -
monetary promise, covenant and term set forth in this Lease on its part to be kept, performed
or observed within thirty (30) calendar days after receipt of written notice of default
thereunder, provided that if such default cannot reasonably be cured within thirty (30) calendar
is day period and Tenant shall have commenced to cure such default within such thirty (30)
calendar day period and thereafter diligently, continuously and expeditiously proceeds to cure
36
same, such thirty (30) calendar day period shall be extended for so long as it shall require
Tenant in the exercise of due diligence to cure such default; or
(vi) To the extent permitted by law, if Tenant makes an assignment for the
benefit of creditors; or
(vii) To the extent permitted by law, if Tenant files a voluntary petition under
Title I I of the United States Code (the "Bankru ptcy Code") or if such petition is filed against
Tenant and an order for relief is entered and not dismissed within sixty (60) days or if Tenant
files any petition or answer seeking, consenting to or acquiescing in any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar relief under the
Bankruptcy Code or any other present or future applicable federal, state or other statute or
law; or
(viii) To the extent permitted by law, if within sixty (60) days after the
commencement of any proceeding against Tenant seeking to have an order for relief entered
against its as debtor or to adjudicate it a bankrupt or insolvent, or seeking any reorganization,
arrangement, composition, readjustment or adjustment, winding -up, liquidation, dissolution or
similar relief under the Bankruptcy Code or any other present or future applicable federal,
state or other statute or law of any jurisdiction, domestic or foreign, such proceeding is not
dismissed; or if, within sixty (60) days after the appointment, without the consent or
acquiescence of Tenant, of any trustee, receiver, custodian, assignee, sequestrator or
liquidator of Tenant, or of all of any of the Premises or any 'interest of Tenant therein, such
appointment is not vacated or stayed on appeal or otherwise, or if, within thirty (30) days after
the expiration of any such stay, such appointment if not vacated; or
(ix) If Tenant intentionally or fraudulently misstates Gross Revenue for
purposes of calculation of the Percentage Rent.
(b) Remedies. Upon the occurrence of any Event of Default by Tenant, Landlord
shall have the option to pursue any one or more of the following remedies without any notice
(except for that expressly required by the terms of this Lease) or demand for possession
whatsoever (and without limiting the generality of the foregoing, Tenant hereby specifically
waives notice and demand for payment of rent or other obligations due and waives any and all
other notices or demand requirements imposed by applicable law):
(1) Terminate this Lease by giving written notice to Tenant thereof, which
termination shall be effective upon the date specified in such notice as if such date were the date
therein definitely fixed for the expiration of the Term. Amything contained herein to the contrary
notwithstanding, if such tcn-nination is stayed by order of any court having Jurisdiction over any
proceeding described in subsections 19(a)(vii) or (viii) hereof, or by federal or state statute, then
following the expiration of any such stay, or if the trustee appointed in any such proceeding,
Tenant or Tenant as debtor -in -possession fails to assume Tenant's obligations under this Lease
within the period prescribed therefor by law or within thirty (30) days after entry of the order for
relief or as may be allowed by the court, Landlord, to the extent permitted by law or by leave of
the court having jurisdiction over such proceeding, will have the right, at its election, to
37
terminate this Lease on five days notice to Tenant, Tenant as debtor-in-pos session or said trustee
and upon the expiration of said five day period this Lease will expire and terminate, and Tenant,
Tenant as debtor -in -possession, said trustee or any of them will immediately quit and surrender
the Premises as aforesaid. In the event of such ten-nination, Tenant shall (1) have no further
rights under this Lease, (2) immediately quit and surrender the Premises, (3) cease forthwith
all operations upon the Premises, and (4) shall pay in full all Rent and other charges as set
forth in this Lease, then due and owing, through the date of such termination and Tenant shall
be liable for all damages incurred by Landlord in connection with Tenant's default or the
termination of this Lease upon such a default, including, without limitation, all direct, indirect,
consequential and all other damages whatsoever; provided, Landlord shall not be entitled to
punitive damages. In no event, shall Tenant be entitled to receive any credit or payment with
respect to the value of the Premises, title to which shall automatically vest in Landlord upon
such termination;
(11) Terminate Tenant's right to occupy the Premises and re-enter and take
possession of the Premises (without tenrunating this Lease). In the event Landlord elects to re-
enter or take possession of the Premises after Tenant's default, Tenant hereby waives notice of
such re-entry or repossession;
(Iii) Enter upon the Premises and do whatever Tenant is obligated to do under
the terms of this Lease, and Tenant agrees to reimburse Landlord on demand for any expense
which Landlord may reasonably *incur in effecting compliance with Tenant's obligations under
this Lease, and Tenant further agrees that Landlord shall not be liable for any damages resulting
to the Tenant from such action-, and
(Iv) Exercise all other remedies available to Landlord at law or in equity,
including, without limitation, injunctive relief of all varieties.
Landlord may, without prejudice to any other remedy which it may have for possession
or arrearages in rent, expel or remove Tenant and any other person who may be occupying said
Premises or any part thereof In addition, the provisions of subsection 30(m) hereof shall apply
with respect to the period from and after the giving of notice of such termination to Tenant.
The rights of termination described in this Section 19 shall be in addition to any other
rights provided in this Lease and in addition to any rights and remedies that the parties would
have at law or in equity consequent upon any breach of this Lease (not cured within the
applicable cure period) and the exercise of any right of termination shall be without prejudice
to any other rights and remedies, subject to any limitations on such remedies otherwise set
forth in this Lease.
(c) Habitual Default. Notwithstanding the foregoing, in the event that the Tenant
has defaulted in the performance of or breached the same material obligation two or more
times in a twelve (12) month period, and regardless of whether the Tenant has cured each
individual condition of breach or default, the Tenant may be determined by the Landlord to be
a "habitual violator. " For the purposes hereof, a default by Tenant of any monetary obligation
W.,
0
contained in this Lease shall be deemed to be a default of Tenant of a material obligation. At
the time that such determination is made, the Landlord shall issue to the Tenant a written
notice advising of such determination and citing the circumstances therefor. Such notice shall
also advise Tenant that there shall be no further notice or grace periods to correct any
subsequent breaches or defaults of that particular material obligation for the balance of such
twelve month period and that any subsequent breaches or defaults of that particular material
obligation for the balance of such twelve month period, taken with all previous breaches and
defaults, shall be considered cumulative and collectively, shall constitute a condition of
noncurable default and grounds for immediate termination of this Agreement. In the event of
any such subsequent breach or default of that particular material obligation for the balance of
such twelve month period, for which the Tenant has been deemed to be a habitual violator,
Landlord may terminate this Agreement upon the giving of written notice of termination to the
Tenant, such termination to be effective upon delivery of the notice to the Tenant.
Notwithstanding whether Tenant is determined to be a "habitual violator", the Leasehold
Mortgagee will nonetheless retain all notice and cure rights it has (and would have), as if
Tenant had not been determined to be a "habitua I violator".
(d) No Waiver. No acceptance by the Landlord of Rent, fees, charges or other
payments in whole or in part for any period or periods after a default of any of the terms,
covenants and conditions hereof to be performed, kept or observed by the Tenant shall be
deemed a waiver of any right on the part of the Landlord to terminate this Lease, or to exercise
any other available remedies.
Failure by Landlord or Tenant to enforce any provision of this Lease shall not
be deemed a waiver of such provision or modification of this Lease. A waiver of any breach of
a provision of this Lease shall not be deemed a waiver of any subsequent breach and shall not
be construed to be a modification of the terms of this Lease.
SECTION 20. REMEDIES TO BE NON-EXCLUSIVE.
(a) Cumulative Remedies. All rights and remedies of the parties hereunder or at
law or in equity are cumulative, and the exercise of any right or remedy shall not be taken to
exclude or waive the right to the exercise of any other, subject to the express limitations set
forth in this Lease, if any. No waiver by either party of any failure to perform any of the
terms, covenants, and conditions hereunder shall operate as a waiver of any other prior or
subsequent failure to perform any of the terms, covenants, or conditions herein contained.
Forbearance by Landlord to enforce one or more of the remedies herein provided upon an Event
of Default shall not be deemed or construed to constitute a waiver of such default.
(b) Survival. Upon termination or expiration of this Lease, the Tenant shall remain
liable for all obligations and liabilities that have accrued prior to the date of termination or
expiration.
39
SECTION 21. SURRENDER.
(a) The Tenant covenants and agrees to yield and deliver peaceably and promptly to
the Landlord, possession of the Premises, on the Termination Date or earlier termination of
this Lease, free and clear of all Subleases, liens and encumbrances. Tenant hereby waives any
notice now or hereafter required by law or statue with respect to vacating the Premises on the
Termination Date or earlier termination of this Lease. Other than with respect to any New
Additional Improvements as provided in subsection 21(c) below, upon surrender, or upon the
expiration or sooner termination of the Term of this Lease, whichever occurs first, title to the
Improvements will automatically vest in Landlord without any payment or allowance
whatsoever by Landlord, and without the necessity for the execution and delivery by Tenant of
any instrument transferring title. Notwithstanding the foregoing, Tenant shall execute and
deliver all documentation reasonably requested by Landlord to confirm the transfer of
Tenant's interest in the Improvements and all permits and approvals, relating to the
ownership, use and operation of the Premises to the Landlord. The Tenant shall surrender the
Premises in the condition required pursuant to this Lease. All maintenance and repairs shall be
completed prior to surrender. The Tenant shall deliver to the Landlord all keys to the Premises
upon surrender. At least three (3) but not more than six (6) months prior to the Termination
Date (or as soon as practicable if this Lease is earlier terminated), Tenant shall provide
Landlord with a Phase I environmental assessment (or equivalent type report available at the
time of termination) certified to Landlord, which assessment or report identifies the existence
of any hazardous substances or other Materials. Based upon the recommendations in such
assessment or report, the Tenant shall at its expense obtain such additional assessments and
reports as required to fully assess the nature and extent of the hazardous substances, other
Materials or both and take all actions required by federal, state, and municipal laws,
administrative code provisions, ordinances, rules, and regulations, as amended, to remove
from the Premises any hazardous substances, other Materials or both in violation of applicable
law or the terms and provisions of this Lease or both, whether stored in drums, or found in
vats, containers, distribution pipe lines, or the like or discharged into the ground other than
that created by or through Landlord. All such substances shall be removed by the Tenant in a
manner that complies with all applicable federal, state, county, municipal laws, administrative
code provisions, ordinances, rules and regulations, as amended.
(b) On the Termination Date or earlier termination of this Lease, Tenant shall
deliver the following to Landlord: all Occupancy Agreements then in effect, any service and
maintenance contracts then affecting the Premises, true and complete maintenance records for
the Premises, all original licenses, permits, approvals and certificates of occupancy or their
equivalent then pertaining to the Premises, and, all warranties and guarantees then in effect
with respect to the Premises and any and all other documents of every kind and nature
whatsoever relating to the operation of the Premises and the condition of the Improvements.
(c) If Tenant intends to construct any New Additional Improvements, then, upon
40 surrender, or the expiration or sooner tennination of the Tenn, Landlord shall only be obligated
to pay for such New Additional Improvements as hereinafter as provided in this subsection
21(c). At least thirty (30) days prior to the commencement of construction of any New
Rol
Additional Improvements by Tenant (and only after the City, in its governmental capacity, has
approved the detailed construction plans and specifications therefor through all phases of design
and construction (e.g. schematic, design and construction) which are to be submitted to the City
during the permitting process for construction of such New Additional Improvements (the
"Approved Final Plans")), Tenant shall provide written notice to Landlord containing the
following information (the "Improvement Notice"): (1) a copy of the Approved Final Plans; (11)
a statement detailing the construction cost of the New Additional Improvement; and (111) a
straight line depreciation schedule of the proposed New Additional Improvement in accordance
with IRS regulations. Within twenty (20) days of Landlord's receipt of the Improvement Notice,
Landlord shall notify Tenant of whether or not it elects (which election shall be in the City's sole
and absolute discretion) to pay the depreciated value (based upon the depreciation schedule set
forth in the Improvement Notice) of the proposed New Additional Improvement upon surrender,
or the expiration or sooner tennination of the Term. If the City does not elect to pay for the
depreciated value of the proposed New Additional Improvement and the Tenant still elects to
proceed with the construction of the New Additional Improvement, then, upon surrender, or the
expiration or sooner termination of the Term, whichever occurs first, Tenant shall be entitled to
remove said New Additional Improvement, so long as it substantially returns the Land under the
new Additional Improvement to its condition prior to the construction of the New Additional
Improvement; provided, however, that if Tenant does not remove said New Additional
Improvement prior to the expiration or sooner termination of the Tenn, title to such Additional
New Improvement will automatically vest in Landlord without any payment or allowance
whatsoever by Landlord, and without the necessity for the execution and delivery by Tenant of
any instrument transferring title. If the City does elect to pay for the depreciated value of the
proposed New Additional Improvement and the Tenant constructs the New Additional
Improvement, then, upon surrender, or the expiration or sooner termination of the Tenn,
whichever occurs first, title to such Additional New Improvement will vest in Landlord upon
payment to the Tenant of the depreciated value of the New Additional Improvement (based
upon the depreciation schedule set forth in the Improvement Notice) on the date of such
surrender, or the expiration or sooner termination of the Term, and without the necessity for
the execution and delivery by Tenant of any instrument transferring title. Notwithstanding the
foregoing, Tenant shall execute and deliver all documentation reasonably requested by
Landlord to confirm the transfer of Tenant's interest in the New Additional Improvements.
The provisions of this subsection 21(c) are in addition to the Tenant's o bligations with respect
to the construction of any Improvements by Tenant during the Term as provided in Section 6
of this Lease.
(d) The provisions of this Section 21 will survive the Termination Date or earlier
termination of this Lease.
SECTION 22. REMOVAL OF PROPERTY.
(a) Removal. The Tenant shall have the right at any time during the Term to
remove its trade fixtures and other personal property from the Premises. Tenant shall promptly
repair any damage to the structure or exterior of the Premises caused by its removal of any
personal property or trade fixtures. If the Tenant shall fail to remove its inventories, trade
41
0
fixtures, and personal property by the date which is fourteen (14) days after the date of the
termination or expiration of this Lease, then, at the Landlord's option: (i) title to same shall
vest in the Landlord, at no cost to the Landlord; or (ii) Landlord may remove such property to
a public warehouse for deposit; or (Ili) Landlord may retain the same in its own possession and
sell the same at public auction, the proceeds of which shall be applied first to the expenses of
removal, storage and sale, second, to any sums owed by the Tenant to the Landlord, with any
balance remaining to be paid to the Tenant; or Landlord may dispose of such property in any
manner permitted by law. If the expenses of such removal, storage and sale shall exceed the
proceeds of sale, the Tenant shall pay such excess to the Landlord upon demand.
(b) Survival. The provisions of this Section 22 shall survive the expiration or
termination of this Lease.
SECTION 23. NOTICES.
Whenever either party desires to give notice to the other, such notice must be in
writing, sent by (i) certified United States Mail, postage prepaid, return receipt requested, (11)
hand delivery with a request for a written receipt of acknowledgment of delivery, addressed to
the party for whom it is intended at the place last specified, or (iii) by recognized overnight
courier service. The place for giving notice shall remain the same as set forth herein until
changed in writing in the manner provided in this section. For the present, the parties designate
the following:
FOR LANDLORD:
City of Dania Beach
100 West Dania Beach Boulevard
Dania Beach, Florida 33004
Attention: City Manager
with a copy to:
City of Dania Beach
100 West Dania Beach Boulevard
Dania Beach, Florida 33004
Attn: Thomas J. Ansbro, Esq.
City Attorney
42
0 FOR TENANT:
0
Harbour Towne Associates
c/o Westrec Marinas
16633 Ventura Boulevard
6thFloor
Encino, California 91436
Attn: Jeffrey K. Ellis
with a copy to:
Kluger, Peretz, Kaplan & Berlin, P.L.
17th Floor
201 South Biscayne Boulevard
Miami, FL 33131
Attention: Jon Chassen, Esq.
All notices, approvals and consents required hereunder must be in writing to be
effective.
SECTION 24. NON -LIABILITY OF INDIVIDUALS
No limited partner, director, officer, administrator, official, agent or employee of the
Landlord or Tenant shall be charged personally or held contractually liable under any term or
provisions of this Lease or of any supplement, modification or amendment to this Lease or
because of any breach thereof, or because of its or their execution or attempted execution.
SECTION 25. UTILITIES.
Tenant shall pay for all water, wastewater, electric, telephone, solid waste, recycling, and
all other utility and other expenses of any and all types whatsoever which arc now or hereafter
charged or assessed with respect to operations at the Premises (excluding the Civic Center and
Restroom Building) during the Tenn. No failure, delay or interruption in supplying any
services for any reason whatsoever (whether or not a separate charge is made therefor) shall be
or be construed to be an eviction of the Tenant or grounds for any diminution or abatement of
rental or shall be grounds for any claim by the Tenant under this Lease for damages,
consequential or otherwise unless caused by Landlord's wron gful act or gross neglect.
43
0 SECTION 26. ABATEMENT.
0
If, at any time, the Tenant shall become entitled to an abatement of Rent by the
provisions of this Lease or otherwise, the abatement of Rent shall be made on an equitable
basis taking into consideration the amount and character of the space, the use of which is
denied the Tenant as compared with the entire Premises, and the period of time for which such
use is denied to Tenant.
SECTION 27. ENVIRONMENTAL COMPLIANCE; ENVIRONMENTAL
CONTAINMENT AND REMOVAL.
(a) No Warranty by Landlord. Landlord makes no representations or warranties
whatsoever as to the existence of any pollutants, or hydrocarbons contamination, hazardous
materials, or other contaminants or regulated materials (collectively, "Materials") on or in the
Premises or the Improvements whether or not in violation of any federal, state, county or
municipal law, administrative code provision, ordinance, rule or regulation, as amended, or in
violation of any order or directive of any federal, state or local court or entity with jurisdiction
of such matter. It shall be the sole responsibility of Tenant to make sufficient inspection of the
Premises to satisfy itself as to the presence or absence of any Materials.
(b) Complianc . Tenant agrees to comply with all existing and future federal, state,
county, and municipal environmental laws, administrative code provisions, ordinances, rules
and regulations, and the requirements of any development order covering the Premises issued
pursuant to Chapter 380, Florida Statutes, all as may be amended, including without limitation
those addressing the following:
(1) Proper use, storage, treatment and disposal of Materials, including
contracting with a licensed hazardous waste transporter, treatment and disposal facility or both
to assure proper transport and disposal of hazardous waste and other regulated Materials;
(2) Proper use, disposal and treatment of storm water runoff, including the
construction and installation of adequate pre-treatment devices or mechanisms on the Premises,
if applicable;
(3) Adequate inspection, licensing, insurance, and registration of existing
and ftiture storage tanks, Storage systems, and ancillary facilities to meet all federal, state, as
amended, and municipal standards, including the installation and operation of adequate
monitoring devices and leak detection systems; and
(4) Adequate facilities on the Premises for management and, as necessary,
pretreatment of industrial waste, industrial wastewater, and regulated Materials and the proper
disposal thereof.
Im
0 (5) Compliance with reporting requirements of Title III of the Superfund
Amendment, as applicable and as such laws may be amended from time to time.
(c) Clean Up. The release of any Materials on the Premises, or as a result of any
operations at the Premises that is in an amount that is in violation of any federal, state, county,
municipal law, administrative code provision, ordinance, rule or regulation, as amended, or in
violation of an order or directive of any Governmental Authority, shall be, at the Tenant's
expense, and upon demand of Landlord or any local, state, or federal regulatory agency or
other Governmental Authority, immediately contained or removed to meet the requirements of
applicable environmental laws, rules and regulations. If Tenant does not take action promptly
to have such Materials contained, removed and abated to the extent required by law, the
Landlord may upon reasonable notice to Tenant (which notice shall be written unless an
emergency condition exists) undertake the removal of the Materials; however, any such action
by the Landlord or any of its agencies shall not relieve the Tenant of its obligations under this
or any other provision of this Lease or as imposed by law. No action taken by either the
Tenant or the Landlord to contain or remove Materials, or to abate a release, whether such
action is taken voluntarily or not, shall be construed as an admission of liability as to the
source of or the person who caused the pollution or its release.
(d) Notice of Release. Tenant shall provide the Landlord with notice of releases of
Materials occurring at the Premises or on account of the operations at the Premises. Tenant
shall maintain a log of all such notices to the Landlord and shall also maintain all records
required by federal, state and local laws, rules and regulations and also such records as are
reasonably necessary to adequately assess environmental compliance in accordance with
applicable laws, rules and regulations.
As required by law, Tenant shall provide the federal, state and local regulatory
agencies with notice of spills, releases, leaks or discharges (collectively, "release") of
Materials on the Premises which exceeds an amount required to be reported to any local, state
or federal regulatory agency under applicable environmental laws, rules and regulations, which
notice shall be in accordance with applicable environmental laws, rules and regulations. Tenant
shall further provide the Landlord and the Broward County Department of Natural Resource
Protection (or successor agency) with written notice of not less than one (1) business day
following commencement of same, of the curative measures, remediation efforts and/or
monitoring activities to be effected on the Premises. Tenant shall have an updated contingency
plan in effect relating to such releases which provide minimum standards and procedures for
storage of regulated Materials and other Materials, prevention and containment of spills and
releases, and transfer and disposal of regulated Materials and other Materials. The contingency
plan shall describe design features, response actions, and procedures to be followed in case of
releases or other accidents involving hazardous Materials, bio-hazardous Materials or
petroleum products or other Materials.
0 (e) Documents and Inspection. The Landlord, upon reasonable written notice to
Tenant, shall have the right to inspect all documents relating to the environmental condition of
Wi
the Premises which are in Tenant's possession or control, including without limitation, the
release of Materials at the Premises, or any curative, remediation, or monitoring efforts, and
any documents required to be maintained under applicable environmental laws, rules and
regulations or any development order issued to the Landlord pertaining to the Premises,
pursuant to Chapter 380, Florida Statutes, including, but not limited to, manifests evidencing
proper transportation and disposal of Materials, environmental site assessments, and sampling
and test results. Tenant agrees to allow reasonable inspection of the Premises by appropriate
federal, state, county and municipal agency personnel in accordance with applicable
environmental laws, rules and regulations and as required by any development order issued to
the Landlord pertaining to the Premises, pursuant to Chapter 380, Florida Statutes.
(f) Cure. If Tenant is in default of its obligation to remove the Materials in
violation of applicable law and such breach is not cured within the applicable cure period, and
the Landlord arranges for the removal of any Materials on the Premises that were caused by
the Tenant or the officers, employees, contractors, subcontractors, invitees, or agents of
Tenant, the costs of such removal incurred by the Landlord shall be paid by Tenant to the
Landlord within ten (10) calendar days of Landlord's written demand, with interest at the
Default Rate.
(g) Liability. The Landlord shall cooperate with the Tenant with respect to
Tenant's obligations pursuant to these provisions, including making public records available to
Tenant in accordance with Florida law; provided, however, nothing herein shall be deemed to
relieve Tenant of its obligations hereunder or to create any affirmative duty of Landlord to
abrogate its sovereign right to exercise its police powers and governmental powers by
approving or disapproving or taking any other action in accordance with Landlord codes,
ordinances, rules and regulations, federal laws and regulations, state and local laws and
regulations, development orders and grant agreements. The Landlord and its employees,
contractors, and agents, upon reasonable written notice to Tenant, and the federal, state, local
and other agencies, and their employees, contractors, and agents, at times in accordance with
applicable laws, rules and regulations, shall have the right to enter the Premises for the
purposes of the foregoing activities and conducting such environmental assessments (testing or
sampling), inspections and audits as it deems appropriate.
(h) Survival. The provisions of this Section shall survive the expiration or other
termination.
SECTION 28. NON-DISCRIMINATION.
Tenant shall not engage in or commit any discriminatory practice in violation of
applicable laws, statutes, ordinances, rules and regulations.
He,
0 SECTION 29. NO SUBORDINATION.
Landlord's interest in the Premises and in this Lease, as the same may be modified,
amended or renewed, will not at any time be subject or subordinate to (a) any mortgage now or
hereafter placed upon Tenant's interest in this Lease, (b) any other liens or encumbrances
hereafter affecting Tenant's interest in this Lease and the leasehold estate created hereby or (c)
any Sublease or any Mortgages, liens or encumbrances now or hereafter placed on any
Subtenant's interest in the Premises.
SECTION 30. MISCELLANEOUS.
(a) Headings. The section and paragraph headings in this Lease are inserted only as
a matter of convenience and for reference, and in no way define, limit or describe the scope or
intent of any provision hereof.
(b) Jurisdiction. This Lease shall be interpreted and construed in accordance with
and governed by the laws of the State of Florida. Venue for litigation concerning this Lease
shall be in Broward County, Florida.
(c) Severability. This Lease is intended to be performed in accordance with and
only to the extent permitted by applicable law. If any provisions of this Lease or the
application thereof to any Person or circumstance shall, for any reason and to any extent, be
invalid or unenforceable, but the extent of the invalidity or unenforceability does not destroy
the basis of the bargain between the parties as contained herein, the remainder of this Lease
and the application of such provision to other Persons or circumstances shall not be affected
thereby, but rather shall be enforced to the greatest extent permitted by law.
(d) Independent Contractor/Relationship of Parties. The relationship of Landlord
and Tenant hereunder is the relationship of landlord and tenant. The parties expressly
acknowledge that it is not their intent to create any rights or obligations in any third Person or
entity under this Lease. Nothing contained herein shall be deemed or construed as creating the
relationship of principal and agent, partners, joint venturers, or any other similar such
relationship between the parties hereto.
(e) Third Party Beneficiaries. Neither Tenant nor Landlord intend to directly or
substantially benefit a third party by this Lease. Therefore, the parties agree that there are no
third party beneficiaries to this Lease and that no third party shall be entitled to assert a claim
against either of them based upon this Lease. Nothing herein shall operate to diminish any of
the rights of a Leasehold Mortgagee provided for in this Lease.
(f) Force Majeure. Notwithstanding anything contained in this Lease to the
contrary, neither Landlord nor Tenant (nor Leasehold Mortgagee, if applicable) shall be
considered to be in default of this Lease if delays in or failure of performance shall be due to
Force Majeure, the effect of which, by the exercise of reasonable diligence, the non-
47
performing party could not avoid wherein the time for performance shall be extended by the
period of such Force Majeure event(s).
(g) Negotiated Lease. Both parties have substantially contributed to the drafting
and negotiation of this Lease and this Lease shall not, solely as a matter of judicial
construction, be construed more severely against one of the parties than any other. The parties
hereto acknowledge that they have thoroughly read this Lease, including all exhibits and
attachments hereto, and have sought and received whatever competent advice and counsel was
necessary for them to form a full and complete understanding of all rights and obligations
herein.
(h) IncoMoration by Reference. The truth and accuracy of each "Recital" clause
set forth above is acknowledged by the parties. The attached Exhibits to this Lease are
incorporated into and made a part of this Lease and all exhibits subsequently attached to this
Lease pursuant to the terms hereof shall be deemed incorporated into and made a part of this
Lease.
G) Estoppel Statement. The parties agree that from time to time, upon not less than
fifteen (15) days prior request by a party hereto, the other party will deliver a statement in
writing certifying: (a) that this Lease is unmodified and in full force and effect (or, if there
have been modifications, that the Lease as modified is in full force and effect and stating the
modifications); (b) the dates to which the Rent and other charges have been paid; (c) that, to
such party's knowledge, neither party is in default under any provisions of this Lease, or, if
in default, the nature thereof in detail; and (d) such other information pertaining to this Lease
as either party may reasonably request.
0) Amendments. No modification, amendment, or alteration in the terms or
conditions contained herein shall be effective unless contained in a written document prepared
with the same or similar formality as this Lease and executed by the Landlord and Tenant.
(k) Prior Agreements. This document incorporates and includes all prior
negotiations, correspondence, conversations, agreements, and understandings applicable to the
matters contained herein and the parties agree that there are no commitments, agreements or
understandings concerning the subject matter of this Lease that are not contained in this
document. Accordingly, the parties agree that no deviation from the terms hereof shall be
predicated upon any prior representations or agreements, whether oral or written. It is further
agreed that no modification, amendment or alteration in the terms or conditions contained
herein shall be effective unless contained in a written document in accordance with
subparagraph 0),above.
(1) References. All personal pronouns used in this Lease shall include the other
gender, and the singular shall include the plural, and vice versa, unless the context otherwise
I
requires. Terms such as "herein," "hereof, " "hereunder, " and hereinafter" refer to this
Lease as a whole and not to any particular sentence, paragraph, or section where they appear,
F11H,
unless the context otherwise requires. Whenever reference is made to a Section of this Lease,
such reference is to the Section as a whole, including all of the subsections and subparagraphs
of such Section, unless the reference is made to a particular subsection or subparagraph of such
Section.
(m) Holdover. It is agreed and understood that any holding over of Tenant after the
termination of this Lease shall not renew and extend same, but shall operate and be construed
as a license from month to month. At the option of Landlord, upon written notice to Tenant,
Tenant shall be required to pay to the Landlord during any holdover period, monthly license
fees which shall be equal to double the amount of the monthly installment of Rent that was due
and payable for the month immediately preceding the termination date of this Lease. In
addition, Tenant shall be required to pay to Landlord any other charges required to be paid
hereunder during any such holdover period. Tenant shall be liable to the Landlord for all loss
or damage on account of any such holding over against the Landlord's will after the
termination of this Lease, whether such loss or damage may be contemplated at the execution
of this Lease or not. It is expressly agreed that acceptance of the foregoing payments by the
Landlord in the event that Tenant fails or refuses to surrender possession shall not operate or
give Tenant any right to remain in possession nor shall it constitute a waiver by the Landlord
of its right to immediate possession of the premises.
(n) Agent for Service of Process. It is expressly understood and agreed that if the
Tenant is not a resident of the State of Florida, or is an association, corporation or partnership
without a registered agent for service of process in the State of Florida, then in any such event
the Tenant does designate the Secretary of State, State of Florida, its agent for the purpose of
service of process in any court action between it and the Landlord arising out of or based upon
this Lease, and the service shall be made as provided by the laws of the State for service upon
a non-resident, who has designated the Secretary of State as agent for service. The Tenant
shall designate an agent for service process in Florida. It is further expressly agreed,
covenanted, and stipulated that, if for any reason, service of such process is not possible, and
as an alternative method of service of process, Tenant may be personally served with such
process out of this State by certified mailing to the Tenant at the address set forth herein. Any
such service out of this State shall constitute valid service upon the Tenant as of the date of
mailing. It is further expressly agreed that the Tenant is amenable to and hereby agrees to the
process so served, submits to the jurisdiction, and waives any and all objections and protest
thereto.
(o) Waiver of Claims. Landlord shall not be liable for any loss, damage or injury
of any kind or character to any person or property (i) arising from any use of the Premises or
any part thereof; (ii) caused by any defect in any building, structure, or other Improvements
thereon or in any equipment or other facility located therein; (iii) caused by or arising from
any act or omission of Tenant, or of any of its agents, employees, commercial tenants,
licensees or invitees; (iv) arising from any accident on the Premises or any fire or other
casualty thereon; (v) occasioned by Tenant's failure to maintain the Premises in a safe
condition; or (vi) arising from any other cause; unless, in any of such events, caused by the
IM,
neglect or willful act or omission of Landlord. The Tenant agrees that Landlord shall not be
liable for injury to Tenant's business for any loss of income therefrom or from loss or damage
for merchandise or property of Tenant or its employees, invitees, customers, commercial
tenants or other persons in or about the Premises, nor shall Landlord be liable for injuries to
any persons on or about the Premises whether such damage is caused by or as a result of tbeft,
fire, electricity, water, rain or from breakage, leakage, obstruction or other defect of pipes,
sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures or for any other
condition arising upon the Premises, or from any new construction or repair, alteration or
improvement on the part of Tenant's improvements or the equipment, fixtures or
appurtenance thereof, other than as a result of Landlord's default of its obligations under this
Lease. The Landlord does not waive any rights of sovereign immunity that it has under
app licable law. Notwithstanding anything contained in this Lease to the contrary, in no event
shall Landlord be liable for any consequential, punitive damages or both in connection with
this Lease.
(p) Public Entity Crimes Act. Tenant represents that the execution of this Lease
will not violate the Public Entity Crimes Act (Section 287.133, Florida Statutes). In addition
to the foregoing, Tenant further represents that there has been no determination that it
committed an act defined by Section 287.133, Florida Statutes, as a "public entity crime" and
that it has not been formally charged with committing an act defined as a " public entity
crime" regardless of the amount of money involved or whether Tenant has been placed on the
convicted vendor list.
(q) Successors and Assigns Bound. This Lease shall be binding upon and inure to
the benefit of the successors and assigns of the parties hereto where permitted by this Lease.
(r) Time of Essence. Time is expressed to be of the essence of this Lease.
(s) Written Approvals. All approvals and consents required to be obtained
hereunder must be in writing to be effective. Unless otherwise specifically provided to the
contrary, any consent or approval required by a party to this Agreement shall not be
unreasonably withheld, conditioned or delayed. In the event that the Tenant shall request
Landlord to consent in connection with this transaction then the Landlord shall either approve
or disapprove and specify with reasonable detail the basis for such disapproval within thirty
(30) days of such request or it shall be deemed that the Landlord has approved such request.
(t) No Personal Liability of Commission Members, Administrative Officials or
Representatives of Landlord. Tenant acknowledges that this Lease is entered into by a municipal
corporation as Landlord and Tenant agrees no individual Commission member, administrative
official or representative of Landlord (acting in his or her official capacity) shall have any
personal liability under this Lease or any document executed in coluiection. with the transactions
contemplated by this Lease.
(u) No Personal Liability of Officers or D.1rectors of Tenant. Landlord acknowledges
that this Lease is entered into by a general partnership as Tenant and Landlord agrees that no
50
ndividual general partner, officer, director or representative of Tenant (acting in his or her
capacity as a general partner, officer, director or representative of Tenant) shall have any
personal liability under this Lease or any document executed in connection with the transactions
contemplated by this Lease.
(v) Authority of Tenant. Tenant hereby represents and warrants to Landlord that the
individuals executing this Lease on behalf of Tenant have full authority to execute this Lease in a
representative capacity on behalf of Tenant.
(w) Recordation of Memorandum of Lease. Landlord and Tenant hereby consent to
Landlord or Tenant recording the Memorandum of this Lease in the Public Records of
Broward County, Florida in substantially the form of Exhibit "C" attached hereto. The
Tenant agrees that upon any termination of the Lease that it will execute a document in form
reasonably requested by Landlord terminating the memorandum of record.
(x) No Set Off. The Tenant acknowledges that, as of the Effective Date hereof, it
has no claims against Landlord with respect to any or the matters covered by this Lease and as
of the Effective Date it has no claim of set off or counterclaims against any of the amounts
payable by Tenant to Landlord under this Lease. The Tenant is not entitled to setoff against
the amounts payable by Tenant to Landlord payable pursuant to this Lease.
(y) Police/Regulatory Powers. Landlord cannot, and hereby specifically does not,
waive or relinquish any of its regulatory approval or enforcement rights and obligations as it
may relate to regulations of general applicability which may govern the Premises, any
improvements thereon, or any operations at the Premises. Nothing in this Lease shall be
deemed to create an affirmative duty of Landlord to abrogate its sovereign right to exercise its
police powers and governmental powers by approving or disapproving or taking any other
action in accordance with its zoning and land use codes, administrative codes, ordinances,
rules and regulations, federal laws and regulations, state laws and regulations, and grant
agreements. In addition, nothing herein shall be considered zoning by contract.
(z) Radon Gas. Radon is a naturally occurring radioactive gas that, when it has
accumulated in a building in sufficient quantities, may present health risks to persons who are
exposed to it over time. Levels of radon that exceed federal and state guidelines have been
found in buildings in Florida. Additional information regarding radon and radon testing may be
obtained from your local public health unit.
(aa) Broker. Each party represents to the other that it has not dealt with any broker
or finder in connection with the execution of this Lease.
(bb) Counterparts. This Lease may be executed in counterparts, each of which shall
be deemed to be an original.
10 (cc) Joint and Several Liability. Notwithstanding anything to the contrary contained
herein, if Tenant is a general partnership or joint venture, any general partner or venturer of
51
Tenant shall be jointly and severally liable and obligated with Tenant for the full performance
of all of the terms, covenants, obligations and conditions of this Agreement.
(dd) Waiver of Trial by kry. Landlord and Tenant irrevocably and unconditionally
waive any and all rights to trail by jury in any action, suit or counterclaim arising in
connection with, out of or otherwise relating to this Lease and any other document or
instrument now or hereafter executed and delivered in connection therewith.
(ee) Prevailing Party Attorneys' Fees. In the event of any controversy, claim or
dispute between the parties arising from or relating to this Agreement (including, but not
limited to, the enforcement of any indemnity provisions), the prevailing party shall be entitled
to recover reasonable costs, expenses and attorneys' fees including, but not limited to, court
costs and other expenses through all appellate levels.
IN WITNESS WHEREOF, the parties hereto have made and executed this Lease on
the respective dates under each signature.
WITNESSES: LANDLORD:
Print Name:
Pfint Nafne:
ATTEST:
Louise Stilson, City Clerk
Approved as to form and correctness:
By:
Th6mas J. An'sbr'o, City Attorney
0
CITY OF DANIA BEACH, through its
City Commission
By:
Mayor
Date of execution: Octoberc-)L 2004
52
0 WITNESSES:
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TENANT:
HARBOUR TOWNE ASSOCIATES,
a California general partnership
By: PS Marinas 3, a California limited partnership,
general partner
By: Westrec Investors, Inc., its general partner
By:
Name:
Title:
Date of execution: October,�A_, 2004
By: PS Marinas 4, a California limited partnership,
general partner
By: Westrec Investors, Inc., its general partner
By:
Name:
Title:
I -
Date of execution
October �L, 2004
53
0. EXHD31T "A"
All of Harbour Towne Marina, according to the Plat thereof, as recorded in Plat Book 118,
Page 34, in the Public Records of Broward County, Florida.
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EXHIBIT "B"
Sketch of Civic Center
And
Nine (9) Parking Spaces Reserved for
Exclusive Use of the Civic Center
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This instrument was prepared by
and record and return to:
Elaine M. Cohen, Esq.
Weiss Serota Helfinan
Pastoriza Guedes Cole & Boniske, P.A.
2665 South Bayshore Drive
Suite 420
Miami, Fl, 33133
INSTR # 104427811
OR BK 38401 Pages 730 - 784
RECORDED 10/21/04 10:19:22
BROWARD COUNTY COMMIsSION
DEPUTY CLERK 1008
#2, 5 Pages
MEMORANDUM OF AMENDED AND RESTATED LEASE AGREEMENT
.9
THIS MEMORANDUM OF AMENDED AND RESTATED LEASE AGREEMENT
("Memorandum") is made and entered into as of the 2,1 day of October, 2004, made by and
between the CITY OF DANIA BEACH, a Florida municipal corporation, having an address at 100
West Dania Beach Boulevard, Dania Beach, Florida 33004 ("Landlord"), HARBOUR TOWNE
ASSOCIATES, a California general partnership, having offices at 801 N.E. Third Street, Dania
Beach, Florida 33004 ("Tenant").
WITNESSETH:
WHEREAS, Landlord is the owner in fee simple of the property located in Broward
County, Florida legally described as follows:
All of Harbour Towne Marina, according to the Plat thereof, as recorded in Plat
Book 118, Page 34, 'in the Public Records of Broward County, Florida.
("Premises");
WHEREAS, Landlord entered into that certain Lease Agreement dated May 28, 1980 by
and between Landlord, as Landlord therein, and Marine Conversions, Inc., a Florida corporation
("Marine"), as Lessee therein, which Lease Agreement was amended by that certain
Modification of Lease Agreement dated January 14, 1985 entered into between Landlord and
Marine, as further amended by that certain Second Modification of Lease Agreement dated
September 1, 1986 entered into between Landlord and Marine, as further amended by
Modification of Lease Agreement dated November 28, 1988 entered into among Landlord,
Marine and Southeast Bank, N.A., as Trustee ("Southeast") (collectively, the "Original
Lease");
WHEREAS, pursuant to that certain Assignment of Lease Agreement dated July 1, 1986
entered into between Marine and Southeast, the Lessee's interest under the Original Lease was
assig
gned to Southeast;
fWATransact\2025\0002/M0196260 v.2; 10/5/2004 01:34 PM) Page I of 6"
et-31)
WHEREAS, pursuant to that certain Sublease Agreement dated December 31, 1988,
entered into between Southeast and Tenant, Southeast subleased the Premises to the Tenant (the
"Sublease");
WHEREAS, pursuant to that certain Assignment of Lease and Assumption of Obligations
effective as of March _, 2000 entered into between Southeast and Harbour Towne Associates,
Inc., a Florida corporation, the Lessee's interest under the Original Lease was assigned to
Harbour Towne Associates, Inc.;
WHEREAS, pursuant to that certain Assignment and Assumption of Lease and
Termination of Sublease dated as of October 5, 2004 entered into between Harbour Towne
Associates, Inc., a Florida corporation, and Tenant, the Lessee's interest under the Original Lease
was assigned to Tenant and the Sublease will be terminated and of no further force or effect;
WHEREAS, Landlord and Tenant have entered into an Amended and Restated Lease
Agreement dated as of October Z I , 2004 ("Lease") with respect to the leasing of the Premises,
which Lease amends and restates the Original Lease in its entirety; and
WHEREAS, Landlord and Tenant desire to place all persons to whom these presents may
come upon notice of the existence of the Lease.
NOW, THEREFORE, in consideration of Ten Dollars ($10.00) and other good and
valuable consideration, the receipt, adequacy and sufficiency of which is hereby acknowledged,
the parties intending to be legally bound, hereby agrees as follows:
I . The recitations heretofore set forth are true and correct and are incorporated
herein by this reference.
2. All persons are hereby placed on notice of the execution and existence of the
Lease by and between the Landlord and the Tenant.
3. The term of the Lease expires on August 31, 2040, unless sooner terminated as
provided in the Lease.
4. The Tenant has no authority to create any mechanics' liens for labor or material
against the Premises and all persons contracting with the Tenant are hereby charged with notice
that they must look solely to the Tenant for payment.
Pursuant to Florida Statutes Chapter 255 and 713, Section 6(h) of the Lease specifically
provides:
"Encumbrances. Tenant hereby represents, warrants and covenants to
the Landlord that the fee simple title to the Premises shall be at all times free
and clear of all liens, claims and encumbrances created by or through Tenant;
provided, however, that the Tenant shall be entitled to encumber the leasehold
estate or the Tenant's interest in the Improvements. If any lien or notice of lien
shall be filed against the fee simple title of the Premises created by or through
(WATransact\2025\0002/M0 196260 v.2; 10/5/2004 01:34 PM) Page 2 of
Tenant (other than those created or consented to by Landlord), the Tenant shall,
within thirty (30) calendar days after notice of the filing thereof, cause the same
to be discharged of record by payment, deposit, bond, or order of a court of
competent jurisdiction. Tenant shall not be deemed to be Landlord's agent so as
to confer upon any contractor or subcontractor providing labor or services that
are material to the Premises (whether in connection with Tenant's Improvements
or otherwise) a construction lien, mechanic's lien or both against Landlord's
estate under the provisions of Chapters 255 and 713, Florida Statutes, as
amended from time to time. The foregoing shall be contained in a notice or
memorandum to be recorded in the Public Records of Broward County in
accordance with Chapters 255 and 713, Florida Statutes."
5. The Tenant (its successors and assigns) agrees that upon any termination of the
Lease, it shall, upon request of Landlord, execute a termination of this Memorandum.
6. The terms of this Memorandum may only be modified or amended by an
instrument in writing fully executed by Landlord and Tenant.
IN WITNESS WHEREOF, the parties hereto have made and executed this Lease on the
respective dates under each signature.
WITNESSES: LANDLORD:
CITY OF DANIA BEACH, through its
Print Name: City Commission
\0-141�( A C-C-Q- By: 2.
1-17 Mayor
ATTEST:
Date of execution: October 2004
touise Stilson, City Clerk
Approved as to form and correctness:
By:
T�omas Arsbro','bty Attorney
(WATransact\2025\0002/M0 196260 v.2; 10/5/2004 01:34 PM) Page 3 of
is
WITNESSES: TENANT:
HARBOUR TOWNE ASSOCIATES,
a California general partnership
K F, I By: PS Marinas 3, a California limited partnership,
general partner
By: Westrec Investors, Inc., its general partner
-f�l �1 —
—Az� By:
Print NameT��ajj !�JA Name: VT-'!�N
Title:
Date of execution: October 2004
Print )(ai&� k) By: PS Marinas 4, a California limited partnership,
general partner
By: Westrec Investors, Inc., its general partner
By:
Print Warne: i?2oA-�n ATDI 6 Y� Name: im U - SA Lh�2
Title: V&
/'�/j I
Date of execution: October 7 , 2004
(WATransactQ025\0002/M0 196260 v.2; 10/5/2004 01:34 PM Page 4 of
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of Vs Aii ss.
1�ew, V
iAVj AJG-ta- 'N I
On ncte tvy- —7 before me,' o u, 0 V't
Date Name and Title of Officer (e.g., "Jane Qje�Notary Public")
personally appeared r� J�As
Name(s) of Sig' arts)
C!!!-�personally known to me
[�,pioved to __-vi the-beeis-�tisfactory
-lavideme,fr,
EBBIE KENWORTKe
Commission # 1314375
NotEry Public - California
Los Angeles County
My Comm. Expires Aug 19, 20'U5v fli
to be the person(sl whose name(s) is(a—ref'
subscribed to the within instrument and
acknowledged to me thatFioelhey executed
the same in &hi !�ev%e�r authorized
capacity(ies), and that by ZEii�,ierflth6ir
signature(s) on the instrument the person(s), or
the entity upon behalf of which the personks)
acted, executed the instrument.
WITASTSmy hand and official seal.
Sjgnatu4of Notary Public
I OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent
fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document:
Document Date:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer
Signer's Name: 150_c"�
L-5
Number of Pages: -S
�, - 7k �
0 Individual Top of thumb here
Ek<-o-rporate Officer — Title(s): OjP SireL,�) -1�rl (Al �,Y�/ JY7 c — —
El Partner — 11 Limited El General fosm�
El Attorney-i n- Fact
El Trustee
El Guardian or Conservator
El Other:
Signer Is Representing:
0 1999 National Notary Association - 9350 De Solo Ave., P.O. Box 2402 - Chatsworth, CA 91313-2402 - www.nationalnotary.org Prod. No. 5907 Reorder: Call Toll -Free 1-800-876-6827
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