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GROUND LEASE - DREW STREET FERRY DOCK ~.j. , , . 1.'!' I , GROUND LEASE THIS LEASE is made and entered into by and between CITY OF CLEARWATER, a municipal corporation of the State of Florida, referred to herein as "Lessor," and CLEARWATER FERRY SERVICE, INC., a Florida corporation of Pinellas County, Florida, doing business as Clearwater Ferry Service, referred to herein as "Lessee." ARTICLE 1. DEMISE OF LEASED LAND Leased Land 1.01. Lessor for and in consideration of the rents, covenants, and conditions herein contained to be kept, performed, and observed by Lessee, does lease and demise to Lessee, and Lessee does rent and accept from Lessor the real property (including submerged land) referred to as "Leased Land" legally described in Exhibit A, attached hereto and incorporated herein by reference. Lessor's Warranty of Title 1.02. Lessor hereby represents and warrants that Lessor is the owner in fee simple absolute of the Leased Land subject to covenants, conditions, restrictions, easements, and other matters of record. Lessor's Warranty of Quiet Enjoyment 1.03. Lessor covenants and agrees that Lessee, on paying the rent and other charges here i n prov i ded for and observ i ng and keep i ng the covenants, conditions and terms of this Lease on Lessee's part to be kept or performed, shall lawfully and quietly hold, occupy, and enjoy the Leased Land during the term of this Lease without hindrance or molestation of Lessor or any person claiming under Lessor except as may be provided in other terms of this Lease. 1 tlt1 ' c::::: L'L., {J L)t~.JljJ2~ fl...,...1 [-'.~/'.'..[,.... (:(.;rdiA- C~ f51q/~ ,) ! {I(" /. ., /' .. I'! I , ARTICLE 2. LEASE TERM Commencement After Construction Completed 2.01. The term of this Lease shall commence on the later of the following events: On August 1, 1989, or on the first day of the first calendar month following the month during which the improvements described in paragraph 5.03 (1) are constructed on the Leased Land and Lessee begins ferry service therefrom, provided; however, that in no event shall the Lease Term commence on a date later than December 31, 1990. The Lease Term shall end ten (10) years after the date of its commencement at 12:00 midnight. Right to Extend 2.02. Lessee may extend this Lease for one (1) further term of five (5) years by giving Lessor notice in writing of Lessee's intention to do so not earlier than twelve (12) months and not later than six (6) months prior to the expiration of the Lease Term, under all the same terms and conditions of this Lease except the amount of rent to be paid to Lessor. Holdover 2.03. If Lessee shall hold over after the expiration of the Lease Term, or any extension, such tenancy shall be from month to month on all the same terms, covenants, and conditions of this Lease except that the monthly rental shall be $1,000.00 per month due and payable on the first day of each month. ARTICLE 3. RENT, TAXES, AND UTILITIES Rent 3.01. (1) Lessee agrees to pay to Lessor annually for the Leased Land during the initial Lease Term rent in the sum of approximately Sixteen Thousand Five Hundred Dollars ($16,500.00), to be paid not in cash, but by an annual credit for those fixtures and improvements made by Lessee upon the leased 2 ,0 " I , premises in the total sum stated in Article 5.04(3) hereof amortized at the rate of ten (10) percent per year. (2) All payments of rent due Lessor pursuant to Article 3.01(1) hereof shall be forwarded to the City's Finance Director not later than fifteen (15) days after the beginning of each lease year. Rent Adjustment 3.02. (1) The rent is subject to an adjustment during the extension of this Lease as hereinafter provided. Determination of Rent Adjustment (2) A rent adjustment for an extension beyond the initial Lease Term shall be computed in the following manner: The total monthly charges for dock rent after the initial Lease Term shall be paid on the Drew Street Dock and the City Marina at the then current commercial party boat slip rental rate established at the City Marina, and this monthly rental shall be in lieu of any other rent under this Lease and shall be paid regardless of whether or not any boats are berthed at the Drew Street Dock. This rent calculation shall be computed, based on the number of boats that use this dock as their official full time base of operation times the slip rent. Lessee to Pay Taxes 3.03. (1) Lessee agrees to pay all real property taxes, special taxes, or assessments, including street improvement liens, if any, and all property taxes on personal property located on the Leased Land, levied or assessed upon or against the Leased Land during the Lease Term or any extension. 3 " " -. r I I ", Lessee Not to Cause Tax Increase (2) Lessee shall not do any act which will cause the taxes and assessments, if any, on the Leased Premises to be increased. Lessee to Pay Utility Charges 3.04. Lessee shall payor cause to be paid all charges for water, heat, gas, electricity, sewers, and any and all other utilities used upon the Leased Land throughout the term of this Lease, including any connection fees. ARTICLE 4. USE OF PREMISES Use 4.01. Lessee shall have the right to use the Leased Land in connection with a ferry service to be operated in Clearwater Harbor from the leased premises, plus other related boat transportation services including trips outside of Clearwater Harbor. In this connection, and without detracting from the foregoing, it is understood and agreed that the main purpose for which the Leased Land has been leased is for the development and construction of a ferry dock with ticket booth to use in conjunction with Lessee's ferry service, but Lessor does not intend to restrict the use of said dock solely to Lessee's ferry service. Termination if Use Becomes Unlawful, Impossible, or Impractical 4.02. If it is or becomes unlawful for Lessee to conduct any particular operation or to erect or maintain any particular structure or equipment on the Leased Land, or if any part of the Leased Land or the approaches thereto are condemned or changed by public authority; or if any highway or street change is made diverting or rerouting traffic away from the Leased Land so that it becomes impossible or impracticable to use the Leased Land as it was being used at the time or such use is declared unlawful or such condemnation or change is effected, 4 ~. ," . i" . " I I then Lessee shall have the right at any time thereafter to terminate this Lease by giving Lessor thirty (30) days' notice in writing of such termination. Rent Abatement if Premises Are Temporarily Unusable 4.03. If, as a result of causes other than those hereinabove set out, such as fire, flood, strikes, riots, insurrection, or other similar or different causes beyond the control of Lessee, the Leased Land or the structures constructed thereon shall become unusable from a practical standpoint, for the sole purposes set forth in Article 4.01, above, for a period of ninety (90) consecutive days or longer, then Lessee may, by notice in writing from Lessee to Lessor, at any time prior to the date when this Lease would otherwise terminate, further extend this Lease, without the requirement of the payment of rent, for the period of time which the Leased Land was unusable from a practical standpoint for the sole purpose set forth in Article 4.01, above. Signs 4.04. Lessee shall have the right to erect and maintain upon the improvements to be constructed and on the Leased Land all signs that it deems appropriate to the conduct of its business so long as the same are in compliance with City Code and all other applicable laws and regulations. ARTICLE 5. CONSTRUCTION BY LESSEE 5.01. (1) Lessee's Right to Build-General Conditions Lessee shall have the right, with the written consent of Lessor, during the term of this Lease, to erect, maintain, alter, remodel, reconstruct, rebuild, replace, and remove docks, pilings, ticket booths and other improvements on the Leased Land, subject to the following conditions: (a) The cost of any such construction, necessary dredging, environmental studies, legal fees related to any of 5 ~ ," . r . '. I I these activities, reconstruction, demolition, or of any change, alteration, or improvements shall be borne and paid for by Lessee. (b) The Leased Land shall at all times be kept free of mechanics' and materialmen's liens except as hereinafter more specifically provided. (c) Lessor shall receive copies of construction drawings showing the appearance and dimensions of all improvements contemplated by Lessee and Lessor must approve the same in writing prior to any construction activity being undertaken by Lessee on the Leased Land. (d) Lessor shall be notified at the time of commencement of any work. (e) This Article shall not apply to any changes in improvements not requiring the issuance of a building permit. 5.01 (2) Additional Improvement Additional leasehold improvements evidenced by invoices and other documentation required by City, may be added to the original construction cost contained in Article 5.04 (3) with the written consent of the City Manager of City and depreciated in the same manner as provided in said Article. Easements, Dedications, Dredge and Fill Permits 5.02. (1) In order to provide for the more orderly development of the Leased Land, it may be necessary, desirable, or required that street, water, sewer, drainage, gas, power line, and other easements and dedications, dredge and fill permits and similar rights be granted, dedicated or obtained over or 6 ". r' . r , , . " I , within portions of said Leased Land. As one of the moving considerations to Lessee for the execution of this Lease, Lessor shall execute and deliver or upon request of Lessee, join with Lessee in executing and delivering such documents, from time to time, and throughout the term of this Lease, as may be appropriate, necessary, or required by the governments, governmental agencies and public utilities, and companies for the purpose of granting such easements, dedications, and dredge and fill permits. Zoning (2) In the event that Lessee deems it necessary or appropriate to obtain use, zoning, or plan approval and permits of the Leased Land, or any part thereof, Lessor agrees, from time to time upon request of Lessee, to execute such documents, petitions, applications, and authorizations as may be appropriate or required to submit the Leased Land, or any part thereof, for the purposes of obtaining conditional use permits, zoning and rezoning, tentative and final plat approval. Expenses (3) In each of the foregoing instances, Lessor shall be without expense therefor, the cost and expense thereof to be borne solely by Lessee. Lessee will provide to City within thirty (30) days of completion of all construction, a cost breakdown showing the total cost of the improvements to include: the cost of dredging, the cost of dock construction and the cost of the ticket office. This figure will be the figure used in 5.04(3). 7 , r I I .' " Commencement of Construction 5.03. (1) Lessee expects to commence construction of a ferry dock with a ticket office as more fully described on Exhibit B attached hereto and made a part hereof within ten (10) days after possession is delivered to Lessee or after issuance of all necessary permits and other authorizations, whichever is later. Termination if Construction Is Prevented or Delayed (2) Lessee may terminate this Lease by giving Lessor thirty (30) days' written notice if construction shall be prevented or delayed because: (a) Lessee is, in Lessee's opinion, unable to obtain the permits and authorizations required for construction, or such permits and authorizations are available only upon terms and conditions which are unsatisfactory to Lessee; or (b) Lessee shall, in Lessee's opinion, be prevented or unreasonably hindered in commencing construction within ninety (90) days after execution of this Lease, or thereafter in completing construction, by reason of: (i) act of God or the elements; (ii) shortage or unavailability of necessary materials, supplies, or labor; (iii) shortage of or interruption in transportation facilities; (iv) applicable governmental regulations or restrictions; 8 1 I or (v) any other cause beyond Lessee's control; (c) Lessee shall be unable to obtain construction and permanent financing within thirty (30) days after execution of this Lease. Lessee's Ownership of Improvements and Fixtures Until the End of Initial Lease Term 5.04. (1) It is expressly understood and agreed that any and all pilings, docks, ticket office and improvements and fixtures of whatsoever nature at any time constructed, placed, or maintained upon any part of the Leased Land shall be and remain the property of Lessee until the expiration of the initial lease term of ten (10) years at which time all such pilings, docks, ticket offices, improvements and fixtures automatically become the property of Lessor without the necessity of a written conveyance between Lessee and Lessor. Lessee's Right to Remove Boats and Boating Equipment Signs and Insignia (2) Lessee shall have the right at any time during Lessee's occupancy of the Leased Land, or within a reasonable time thereafter, to remove any and all boats and boating equipment, signs and other insignia of Lessee owned or placed by Lessee, in under, or upon the Leased Land. Purchase of Permanent Improvements by Lessor (3) In the event this Lease is terminated or cancelled for any reason, (except a cancellation caused by beginning or terminating ferry service at the City Marina or allowing customers to use the ferry service from the City Marina or any other breach of contract by Lessee), before the end of the initial Lease Term, Lessor will be obligated to pay to Lessee the then in place origina 1 9 I " construction cost not to exceed $165,000.00 or a lesser amount substantiated by paid invoices, less depreciation at the rate of ten (10) percent per year from the date of completion, of all Lessee-owned permanent, nonmovable improvements located on the Leased Land, and at such time as payment is made therefor to Lessee all such improvements shall become the property of Lessor without the necessity for a written conveyance between Lessee and Lessor. ARTICLE 6. ENCUMBRANCE OF LEASEHOLD ESTATE Lessee Not to Encumber Without Lessor's Consent 6.01 Lessee may not, during the term of this Lease, encumber by mortgage or other security instrument, by way of assignment, or otherwise, Lessee's interest under this Lease and the leasehold estate hereby created for any purpose, without the consent of Lessor and any effort to do so by Lessee shall cause an immediate and automatic forfeiture of any interest in this Lease. ARTICLE 7. REPAIRS AND RESTORATION Lessee's Duty to Repair 7.01. Lessee, at Lessee's own cost and expense at all times during the term of th i s Lease, agrees to keep and ma i nta in, or cause to be kept and maintained, all pilings, docks, ticket offices and improvements which may be erected upon the Leased Land in a good state of appearance and repair, reasonable wear and tear excepted. Damage or Destruction 7.02. If, by fire, flood, explosion, public enemy, riot, civil commotion, or act of God the leasehold improvements, during the term, shall be: Destruction-Termination (1) Destroyed, this Lease shall terminate at the option of the Lessee. If Lessee deems it practical and advisable to rebuild what has been destroyed, Lessee may do so. If Lessee deems it impractical and unadvisable to rebuild 10 1 I what has been destroyed, this Lease shall cease and terminate upon thirty (30) days' cancellation notice to City. The term "destroyed" shall be construed to mean the destruction of the safe, tenantable use or occupancy of the entire dock facility and improvements occupied by Lessee. Forty Percent Damage-Termination Option (2) Damaged in excess of forty (40) percent, this Lease, at the option of Lessee, to be exercised by notice to Lessor in writing, shall cease and terminate upon thirty (30) days' written notice to City. The term "damaged in excess of forty (40) percent" shall be construed to mean such damage to the dock facilities and improvements occupied by Lessee (excluding damage caused solely by water used in extinguishing fire) as will require an expenditure in excess of forty (40) percent of the market value (prior to the damage) of the dock facility and improvements, in order to make repairs. Damage Less than Forty Percent-Repairs (3) Damaged to an extent less than forty (40) percent (or in excess of forty (40) percent and Lessee shall not exercise his option to terminate this Lease), Lessee shall repair (with Lessee's funds and insurance funds) the leasehold improvements with due diligence, and this Lease shall continue in full force and effect. Application of Any Insurance Proceeds (4) Any insurance proceeds paid in connection with a total or partial destruction of the leasehold improvements shall be dispersed between Lessor and Lessee in the following manner: a) If such loss occurs during the initial lease term and Lessee chooses to rebuild what has been destroyed, and continue the ferry service provided in the License Agreement between the part ies of even date, then all insurance 11 , I proceeds shall be applied toward the costs associated with rebuilding of the leasehold improvements and Lessee shall pay any additional costs of rebuilding. b) If such loss occurs during the initial lease term and Lessee chooses not to rebuild what has been destroyed and to discontinue the ferry service, then the insurance proceeds shall be dispersed to Lessor subject to the interest of Lessee to be reimbursed for the costs of the improvements as provided for in paragraph 5.04(3) hereof. c) If such loss occurs during an extension of the initial Lease Term all insurance proceeds shall be paid to City, but if the Extended Lease Term and ferry service are to continue, City must rebuild the improvement at its expense. (5) Lessee Shall at all times during the initial Lease Term keep the improvements constructed pursuant to the terms of this Lease insured for their replacement value with both Lessor and Lessee being shown as insured parties in said contract of insurance. ARTICLE 8. MECHANICS' LIENS Prohibition of Liens on Fee or Leasehold Interest 8.01. Lessee shall not suffer or permit any mechanics' liens or other liens to be filed against the fee of the Leased Land nor against Lessee's leasehold interest in the land nor any piling, dock, ticket booth, restroom or improvements on the Leased Land by reason of any work, labor, services, or materials supplied or claimed to have been supplied to Lessee. Removal of Liens by Lessee 8.02. If any such mechanics' liens or materialmen's lien shall be recorded against the Leased Land, or any improvements thereof, Lessee shall cause the same to be removed or, and in the alternative, if Lessee in good faith desires 12 I I to contest the same, Lessee shall be privileged to do so, but in such case Lessee hereby agrees to comply with the terms of Section 8.03 hereof and indemnify and save Lessor harmless from all liability for damages occasioned thereby and shall, in the event of a judgment of foreclosure upon said mechanic's lien, cause the same to be discharged and removed prior to the execution of such judgment. Security Against Lien Foreclosure 8.03. If any mechanics' lien or materialmen's lien shall be recorded aga inst the Leased Land and Lessee des ires to contest the same rather than immediately discharge said lien, Lessee shall give security against a judgment of foreclosure upon any such mechanics' lien on Lessor's said property by delivering to Lessor an irrevocable Letter of Credit issued by a bank acceptable to Lessor doing business in Pinellas County, Florida, wherein the bank in said Letter of Credit agrees to pay 100 percent of the sum necessary to discharge any judgment of foreclosure of any mechanics lien filed against said leased property prior to the execution on any such judgment. ARTICLE g. CONDEMNATION Interests of Parties on Condemnation 9.01. In the event the Leased Land or any part thereof shall be taken for pub 1 i c purposes by condemnat i on as a resu 1t of any act i on or proceed i ng in eminent domain, or shall be transferred in lieu of condemnation to any authority entitled to exercise the power of eminent domain, the interests of Lessor and Lessee in the award or consideration for such transfer and the effect of the taking or transfer upon this Lease shall be as provided by this Article. 13 . 1 I I Total Taking-Termination 9.02. In the event the entire Leased Land is taken or so transferred, this Lease and all of the right, title, and interest thereunder shall cease on the date title to such Land so taken or transferred vests in the condemning authority, and the proceeds of such condemnation shall be divided in an equitable manner based on the interests of the parties as stated in paragraph 5.04(3) hereof. Partial Taking-Termination 9.03. In the event of the taking or transfer of only a part of the Leased Land leaving the remainder of the premises in such location, or in such form, shape, or reduced size as to be not effectively and practicably usable in the opinion of Lessee for the purpose of operation thereon of Lessee's business, this Lease and all right, title, and interest thereunder shall cease on the date title to the Land or the portion thereof so taken or transferred vests in the condemning authority, and the proceeds of such condemnation shall be divided in an equitable manner based on the interests of the parties as stated in paragraph 5.04(3) hereof. Partial Taking-Continuation With Rent Abatement 9.04. In the event of such taking or transfer of only a part of the Leased Land leaving the remainder of the premises in such location and in such form, shape, or size as to be used effectively and practicably in the opinion of the Lessee for the purpose of operation thereon of Lessee's business this Lease shall terminate and end as to the portion of the premises so taken or transferred as of the date title to such portion vests in the condemning authority, but shall continue in full force and effect as to the portion of the leased Land not so taken or transferred. From and after such date, the rental 14 . i I I required to be paid by Lessee to Lessor shall be reduced in the proportion to which the area so taken or transferred bears to the total area of the Leased Land. Voluntary Conveyance 9.05. A voluntary conveyance by Lessor to a public utility, agency, or authority under threat of a taking under the power of eminent domain in lieu of formal proceedings shall be deemed a taking within the meaning of this Article. ARTICLE 10. ASSIGNMENT AND SUBLEASE 10.01. No Right of Lessee to Assign (1) Lessee shall have no right to assign, convey, or transfer Lessee's interest in this Lease and the leasehold estate created hereby, for the purposes of security, or otherwise without the written consent of Lessor. Assignment to Cause Forfeiture (2) Any purported assignment of Lessee's interest under this Lease in violation of Article 10.01 hereof shall cause an immediate and automatic forfeiture of Lessee's interests under this Lease. 10.02. No Right of Lessee to Sublease Lessee shall have no right to sublease all or any portion of the Leased Land and any purported attempt to sublease Lessee's interest in the said Leased Land shall cause an immediate and automatic forfeiture of Lessee's interest under this Lease. ARTICLE 11. DEFAULT AND REMEDIES 11.01. Time for Curing Default No failure to perform any condition or covenant of this Lease shall entitle Lessor to terminate this Lease unless: (1) such failure shall have 15 I , continued for thirty (30) days after notice in writing requiring the performance of such condition or covenant shall have been given to Lessee; and (2) if such default is of such a nature that it cannot be remedied within this time, then, unless Lessee shall fail to cure such default within such additional time as is reasonably necessary to cure the default, provided that Lessee shall commence to cure the default within this period and thereafter shall diligently continue the curing of the default. ARTICLE 12. TERMINATION AND SURRENDER Lessor's Right of Termination on Notice 12.01. Any provision of this Lease to the contrary notwithstanding, Lessor may terminate this Lease at any time during the Lease Term, or any extension, for any reason or no reason by giving Lessee sixty (60) days' prior written notice of Lessor's intention to do so. Automatic Termination 12.02. Any provision of this Lease to the contrary notwithstanding, this Lease shall automatically terminate without any notice or action on the part of Lessor or Lessee upon the happening of any of the following events: 1) The termination and cancellation for any reason of the License and Agreement of even date between Lessor and Lessee; 2) The filing by or against Lessee pursuant to any statute of the United States or of any state, of a petition in bankruptcy or insolvency or for reorganization or arrangement of indebtedness, or for the appointment of a trustee or receiver for all or any portion of Lessee's property, or if an assignment by Lessee is made for the benefit of its creditors or if an execution seizure, levy, or attachment is made on any of its property. 3) Lessee vacates or abandons the leased premises. 16 " I I Surrender of Possession 12.03. Unless otherwise mutually agreed by the parties, within ten (10) days after termination of the Lease Term, Lessee agrees to redel iver possession of the Leased Land to Lessor in substantially the same condition that existed immediately prior to Lessee's entry on the Leased Land, reasonable wear and tear, damage by the elements, acts of god, war and any act of war, excepted, together with all structures and improvements placed thereon by Lessee, provided, however, Lessee shall be entitled to compensation for said improvements in the manner provided in paragraph 5.04(3) hereof if termination of this Lease occurs during the initial Lease Term. ARTICLE 13. GENERAL PROVISIONS Conditions and Covenants 13.01. All of the provisions of this Lease shall be deemed as running with the land, and construed to be "conditions" as well as "covenants" as though the words specifically expressing or imparting covenants and conditions were used in each separate provision. No Waiver of Breach 13.02. No failure by either Lessor or Lessee to insist upon the strict performance by the other of any covenant, agreement, term, or condition of th i s Lease or to exerc i se any right or remedy consequent upon a breach thereof sha 11 const i tute a wa i ver of any such breach or of such covenant, agreement, term, or condition. No waiver of any breach shall affect or alter this Lease, but each and every covenant, condition, agreement, and term of this Lease shall continue in full force and effect with respect to any other than existing or subsequent breach. 17 " ~ I I Time of Essence 13.03. Time is of the essence of this Lease, and of each provision. Computation of Time 13.04. The time in which any act provided by this Lease is to be done is computed by excluding the first day and including the last, unless the last day is a Saturday, Sunday, or legal holiday, and then it is also excluded. Unavoidable Delay-Force Majeure 13.05. If either party shall be delayed or prevented from the performance of any act required by this Lease by reason of acts of God, strikes, lockouts, labor troubles, inability to procure materials, restrictive governmental laws, or regulations or other cause, without fault and beyond the reasonab 1 e contro 1 of the party ob 1 i gated (f i nanc i a 1 i nab il i ty excepted), performance of such act shall be excused for the period of the delay; and the period for the performance of any such act shall be extended for a period equivalent to the period of such delay, provided, however, nothing in this section shall excuse Lessee from the prompt payment of any rental or other charge required of Lessee except as may be expressly provided elsewhere in this Lease. Successors in Interest 13.06. Each and all of the covenants, conditions, and restrictions in this Lease shall inure to the benefit of and shall be binding upon the successors in interest of Lessor and Lessee. Entire Agreement 13.07. This Lease contains the entire agreement of the parties with respect to the matters covered by this Lease, and no other agreement, statement, or promise made by any party, or to any employee, officer, or agent of any 18 " I I party, which is not contained in this Lease shall be binding or valid. However, this Lease is a part and parcel of two documents respecting the creation and opera t i on of a ferry serv i ce by Les see and th i s document mu s t be read and considered together with a document of the same date between the parties hereto entitled LICENSE AND AGREEMENT. Partial Invalidity 13.08. If any term, covenant, condition, or provision of this Lease is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the provisions shall remain in full force and effect and shall in no way be affected, impaired, or invalidated. Relationship of Parties 13.09. Nothing contained in this Lease shall be deemed or construed by the parties or by any third person to create the relationship of principal and agent or of partnership or of joint venture or of any association between Lessor and Lessee, and neither the method of computation of rent nor any other provisions contained in this Lease nor any acts of the parties shall be deemed to create any relationship between Lessor and Lessee, other than the relationship of Lessor and Lessee. Interpretation and Definitions 13.10. (1) The language in all parts of this Lease shall in all cases be simply construed according to its fair meaning and not strictly for or against Lessor or Lessee. Unless otherwise provided in this Lease, or unless the context otherwise requires, the following definitions and rules of construction shall apply to this lease. 19 I I Number and Gender (2) In this Lease the neuter gender includes the feminine and masculine, and the singular number includes the plural, and the word "person" includes a corporation, partnership, firm, or association wherever the context so requires. Mandatory and Permissive (3) "Shall," "will," and "agrees" are mandatory; "mai' is permissive. Captions (4) Captions of the articles, sections, and paragraphs of this Lease are for convenience and reference only, and the words contained therein shall in no way be held to explain, modify, amplify, or aid in the interpretation, construction, or meaning of the provisions of this Lease. Term Includes Extensions (5) All references to the term of this Lease or the Lease Term shall include any extensions of such Term, but initial term shall include only the first ten (10) years. Land and Premises (6) Leased Land, Land, Leased Premises, and Premises shall include the improvements to the Land. Parties (7) Parties shall include the Lessor and Lessee named in this Lease. Subleasee (8) As used herein, the word "sublessee" shall mean and include in addition to a sublessee and subtenant, a licensee, concessionaire, or other occupant or user of any portion of the leased premises or improvements thereon. 20 I I Attorney's Fees 13.11. In the event either Lessor or Lessee shall bring any action or proceeding for damages for an alleged breach of any provision of this Lease, to recover rents, or to enforce, protect, or establish any right or remedy of either party, the prevailing party shall be entitled to recover as a part of such action or proceedings reasonable attorney's fees and court costs. Interest 13.12. Any sum accruing to Lessor or Lessee under the provisions of this Lease which shall not be paid when due shall bear interest at the rate of twelve (12) percent per annum from the date written notice specifying such nonpayment is served on the defaulting party, until paid. Modification 13.13. This Lease is not subject to modification except in writing. Brokers' Commissions 13.14. Each of the parties represents and warrants that there are no claims for brokers' commissions or finders' fees in connection with the execution of this Lease, except as listed below, and each of the parties agrees to indemnify the other against all liabilities arising from any such claim. Delivery of Rent and Notices-Method and Time 13.15. (1) All rents or other sums, notices, demands, or requests from one party to another may be personally delivered or sent by mail, certified or registered, postage prepaid, to the addresses stated in this section, and shall be deemed to have been given at the time of actual delivery thereof. 21 I I Notices to Lessor (1) All notices, demands, or requests from Lessee to Lessor shall be given to Lessor at the Office of the City Manager, P.O. Box 4748, Clearwater, Florida 34618. Notices to Lessee (2) All notices, demands, or requests from Lessor to Lessee shall be given to Lessee at P.O. Box 3335, Clearwater, Florida, 34630. Change of Address (3) Each party shall have the right, from time to time, to designate a different address by notice given in conformity with this article. Radon Gas Notice (4) 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 guideline have been found in buildings in Florida. Additional information regarding radon and radon testing may be obtained from Pinellas County Health Department. ARTICLE 14. EXECUTION, RECORDING, AND INCORPORATING BY REFERENCE Offer and Acceptance 14.01. Execution of this Lease by Lessee constitutes an offer which shall not be deemed accepted by Lessor until Lessor has executed this Lease and delivered a duplicate original to Lessee. This offer is not valid unless accepted before August 1, 1989. The submission of an unexecuted copy of this Lease for examination does not constitute an offer, reservation, or option for the Leased Land. 22 . .. (, I I 14.02. Recording The parties may, but are not required to record this Lease or a Memorandum thereof in the public records of Pinellas County, Florida. Counterparts 14.03. This Lease, consisting of 25 pages, plus one Exhibit (A), has been executed by the parties in two counterparts, each of which shall be deemed to be an original copy. Exhibits 14.04. Exhibit A is attached and made a part of this Lease. Execution 14.05. This Lease has been executed by Lessor on ~~ , 1989, , 1989, at Clearwater, Pinellas County, and by Lessee on Florida. ~~~ ARTICLE 15. HOLD HARMLESS AND INSURANCE Lessee to Hold Lessor Harmless 15.01. (1) Lessee shall indemnify and hold Lessor harmless from any and all damages, loss or liability which occurs upon the leased premises and the premises used at the end of Bay Esplanade more fully described in the License and Agreement between the parties hereto by reason of any injury to person or property occasioned by any act or omission, neglect or wrongdoing of the Lessee or any of its officers, agents, representatives, guests, employees, invitees, or persons 'contracting with the Lessee and will, at its own cost and expense, defend and protect the Lessor against any and all such claims or demands which may be claimed to have arisen as a result of or in connection with the use and occupancy of the leased premises by Lessee. 23 " I I (2) Lessee shall evidence this section of this Lease with a Certificate of Insurance Form attached to and made a part of this Lease and shall provide liability insurance coverage with limits of at least $1,000,000.00, per each occurrence for bodily injury; $1,000,000.00 each occurrence for property damage with a combined single catastrophe limit of $1,000,000.00 for bodily injury and property damage combined, such insurance to name the Lessor as an additional insured. Dated this 2nd day of August, 1989. ita Garvey Mayor-Commissioner CITY OF CLEARWATER, FLORIDA a -;t. ~- Ron H. Rabun City Manager By: Approved as to form and correctness: Attest: ~ STATE OF FLORIDA ) COUNTY OF PINELLAS ) BEFORE ME personally appeared Rita Garvey, Ron H. Rabun, M. A. Galbraith, Jr., and Mary Kathryn Diana, to me well known, and known to be the individuals described in and who executed the !oregoing instrument as Mayor-Commissioner, City Manager, City Attorney, and Cft~YClerk, respectively, of the above-named City and that the seal affixed to the foregoing instrument is the City seal of said City and the said instrument is the free act and deed of said City. WITNESS August my hand and , 19~. official seal this 2nd day of ~ ' ,hl/~ Nota y P 1 C ~ Notary Publit, State cf Florida My Conllnis~ion Exp:resApril 20. 17'93 Bondud Thru 1 roY Fam - UlSUI,jIlC(:; .ne. 24 . . ~, \. . \ I I ATTEST: CLEARWATER FERRY SERVICE, INC. ByM#~~~ Its President By xftu a < 0~ Secretary ACKNOWLEDGMENT STATE OF FLORIDA ) COUNTY OF nil/If, LLIfS ) On this :If day of -7tI L ,1989, bef re me, a Notary Public in and for sai co tv appeared Ie.. , - O~115e1 and ~ , ~ ~ 0 , who by me first being sworn did say that they are the President and Secre ary respectively of Clearwater Ferry Service, Inc., and that the seal affixed to said instrument is the corporate seal of said corporation, and that said instrument was signed and sealed in behalf of said corporation by authority of its board of directors and said President and Secretary acknowledged said instrument to be the free and voluntary act and deed of said corporation. 1~ TESTIMONY WHEREOF I have hereunto aff~i11Y name and official seal at _,~L~',~~.:.,. h-T1~/L , Florida, this 2'lf d!~. 'TU.L--'-I , 1989. :-:-(S,eajJ '.2:. ///flYf'1/'-r:JCc. - ::::: ... Notary Public NuI"I<lYl"uDLII..::;~AII:UHLUHIDA :: . --= - . MY Ccn1ISSIOI'. [XP,JAN22.1993 - My Comm. Exp 1 res: RCWNn THall {.;rNrQAI IN~ IINO. 1 j j 25 , - . ," '~ I , EXHIBIT A TO GROUND LEASE BETWEEN CITY OF CLEARWATER AND CLEARWATER FERRY SERVICE, INC. DREW STREET FERRY DOCK LEGAL DESCRIPTION From the Southeast corner of Section 9 Township 29 South, Range 15 East, Run thence N. 89 degrees 341 42" W., 2445.54 feet along the South line of said Section 9 to a point on the seawall in Clearwater Harbor and the Point of Beginning; thence run S. 21 degrees 321 0811 W., along said seawall 83.02 feet, thence run S. 89 degrees 34' 42" W., 143.16 feet, thence run N. 00 degrees 251 18" W., 102.00 feet to the westerly extension of North Right of Way line of Drew Street, thence run N. 89 degrees 34' 42" E., along said westerly extension 184.28 feet to a point on aforementioned seawall, thence run S. 21 degrees 32' 0811 W., along said seawall 26.95 feet to the P.D.B.