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BUSINESS LEASE CONTRACTBUSINESS LEASE CONTRACT THIS LEASE CONTRACT, entered into this l�L�`' day of S zPi�g,�-�3��-- , 2011, ("Effective Date") between the CITY OF CLEARWATER, FtORIDA, a Florida municipal corporation, having its principa) place of business at 112 South Osceola Avenue, Clearwater, FL. 33756, as Lessor, and CLEARWATER MARINE AQUARIUM, INC, a Florida non-profit corporation, having its principal place of business at 249 Windward Passage, Clearwater, FL 33767, as Lessee (each individually referred to herein as "Part�' or collectively as the "Parties"). WITNESSETH: That Lessor does lease and Lessee agrees to lease the following premises, a portion of what is commonly known as the "Harborview Center" addressed at 320 Cleveland Street, Clearwater, Florida, all being more specifically described as follows: The entire second (or "middle") floor of the Harborview Center, containing 54,000 square feet, more or less, of interior floor area, measured to the unfinished interior surfaces of its perimeter walls, which is a portion of: EDWARD MILL'S SUBDIVISION, Lot 3 Less Stree#, and Lots 4 and 5, ROMPON'S & BASKINS CORRECTED MAP OF CAUSEWAY BUSINESS DISTRICT, as recorded in Plat Book 57, Pages 1 and 2 of the public records of Pinellas County, Florida, and part of SUNSET COURT, all described as beginning at the Northeast corner of Block 1 of aforesaid ROMPON'S & BASKIN'S CORRECTED MAP OF CAUSEWAY BUSINESS DISTRICT; thence South 224.38 feet; thence West 566.62 feet; thence along the arc of a curve to the right, 197.75 feet; radius 679.20 feet, cord bearing N82°W, 197.10 feet; thence NOS°W, 189.48 feet; thenceNO3°West, 171.34 feet; thence along the arc of a curve to the right, 84.23 feet, radius 743.35 feet, cord bearing NO3°E, 84.18 feet; thence East, 422.97 feet; thence along the arc of a curve to the right, 67.22 #eet, radius 163.84 feet, cord bearing N60°E, 66.75 feet; thence South100.31 feet; thence East 291.48 feet; thence South 183.27 feet to the point of beginning. Together with rights to use parking areas indentified in Exhibit A except as limited herein. Such property shall hereinafter be referred to as the "Leased Premises" or the "Demised Premises" or the "Leased Property" or "Premises". 1. LEASE TERM. The term of this lease shall be for twelve (12) months; which term will commence on the 1st day of Novembe�, 2011 (the "Commencement Date"� and shali continue until midnight on the 31st day of October, 2012 (herein called the "Initial Term"). The Lessee shall have the option to extend the term of this lease for one (1j successive period of twelve (12) months; and thereafter, one (1) successive period of six (6) months (each such period is included in the term "Extended Term"). No such renewal or extension shall be deemed a waiver by Lessor of any breach or default which may then exist. The Extended Term shall be upon the same conditions and terms, and the rent shall be determined and payable, as provided in this agreement, except that there shall be no privilege to extend the term beyond the expiration of the Extended Term period as hereinabove specified. The Lessee shall exercise the option for an Extended Term by notifying the Lessor in writing at least two (2) calendar months prior to the expiration of the then current term. Upon such exercise, this lease shall be deemed to be extended without the execution of any further lease or other instrument. Notwithstanding the above, the Parties shall enter into a License Agreement in substantially the form attached hereto as Exhibit B, to allow Lessee the right to access the Leased Premises prior to the Commencement Date, but not prior to completion by the Lessor of the Capital Expenditures required by Section 4 herein, for the purpose of making alterations and improvements and/or installing props and exhibits necessary for the use by Lessee as contemplated herein, including the storage of materials associated with such improvements ("Early Occupancy Date") provided Lessee supplies evidence of insurance to Lessor. In such event, the Lessor shall pay all utility charges incurred at the Leased Premises from the Early Occupancy Date through the Commencement Date, with said sum to be added to the Capital Expenditures and repaid as a part thereof as set forth in Sections 2 and 4 below. 2. RENT. The Lessee agrees to pay and the Lessor agrees to accept �s the Base Payment during the term of this lease the sum of ��1e`f�rous�( �lr�_S�,r�u��l �$19� payabte monthly, the first such installment being payable on the Commencement Date, with monthly installments being payable in advance at the beginning of each successive monthly period thereafter, except as iimited herein. The Base Payment shall be calculated by dividing the total Capital Expenditures provided in Section 4 as described in Exhibit "C" attached hereto by 30. In addition, following each three month period following the Commencement Date, the lessee agrees to pay and Lessor agrees to accept an amount equal to One (1) and 00/100 Dollar for each paid guest visiting the Leased Property during the prior three month period, less the Base Payments as described above paid during the same three month period ("Additional Payment"), said combined amounts constituting repayment of the Capital Expenditures described in Section 4 herein. The Additional Payment shall be payable not later than fifteen Page 2 of 13 (15) days after the final day of each three month period. All installments as herein above specified are for the purpose of reimbursing the Lessor for Capital Expenditures incurred by the Lessor as provided for under the provisions of Section 4 herein. Following the Lessor's recovery of such Capital Expenditures, Lessor agrees to accept as rent during the remainder of the Term and Extended Term of this lease, One and 00/100 Dollars ($1.00j per year i� further consideration af Lessor entering into this lease with Lessee, Lessee covenants with Lessor that Lessee shall unequivocally, timely and without reservatior� or exception, full comply with all the provisions hereof, and the obligations imposed herein. Lessee's failure to timely comply with any or all of the provisions hereof shalt be deemed a material default and subject to provisions of Section 18. DEFAULT; REMEDIES; TERMINATION BY LESSOR. 3. MAINTENANCE AND PARKING EXPENSES. 1n addition to the Rent set forth above, the lessee shall pay to the Lessor beginning on the Commencement Date the total sum of $3,750 per month for reimbursement to the Lessor for expenses associated with obtaining alternative parking ($1,500) and for the cost of maintaining the common areas associated with the Leased Premises ($2,250), said payment to be made on the first of the month throughout the Term, as extended. This obligation shall terminate upon the termination of this lease by either party. 4. CAPITAL EXPENDITURES BY LESSOR. lessor agrees to make repairs and improvements to the Leased Property (herein called "Capital Expenditures") prior to Lessee's occupation of same. At the inception of this Lease, Lessor's Capital Expenditures are estimated to be One Hundred Twenty Three Thousand Six Hundred Nintey-Seven and 00/100 Dollars ($123,697) as more particularly provided for in Exhibit "C", (attached hereto and incorporated herein). The Parties acknowledging that the cost of the Capital Expenditures may vary from the preliminary estimate, the Parties hereby agree that the Lessor may unilaterally pursue repair of the Premises by incurring Capital Expenditu�es not to exceed Two Hundred Thousand and 00/100 Dollars {$200,000.00) without additional lessee approval. As a courtesy, as soon as reasonably possible, Lessor shall provide Lessee written notice of any Capital Expenditure in excess of One Hundred Seventy Two Thousand Five Hundred Eighty-Seven and OU/100 Dollars ($172,587.00), up to the maximum of Two Hundred Thousand and 00/100 ($200,00O.00j stated above. Lessee shall reimburse Lessor for said Capital Expenditures in their actual amount, as determined by the parties as of the Commencement Date, as described in Section 2 above, a Schedule detailing such Capital Expenditures attached hereto as Exhibit "C". S. USE OF PREMISES. Page 3 of 13 The Leased Premises are leased to Lessee solely for the following uses and no other use can be made of the Premises during the term without the written consent of the Lessor: The Leased Property shall be used to accommodate increased patronage resulting from the film "Dolphin Tale", consistent with Lessee's normal business practices related to the promotion of the Clearwater Marine Aquarium, tourism in Clearwater and increased traffic to the downtown Clearwater area. 6. UTILITIES. Effective as of the Commencement Date, water, sewer, electric and all other utilities of any kind servicing the Leased Premises shall be billed directly to Lessee and are or shall be individually metered for the subject Premises. All deposits for such utilities shall be the sole responsibility of Lessee. 7. MAINTENANCE AND TAXES. Lessee shall, at its own expense, maintain in good repair and in good and safe condition al) improvements on, about and within the Leased Premises, including, but without limiting the generality of the foregoing, all structural improveme�ts, including the doors, plate glass, windows and their respective hardware, all plumbing, heating, cooling and electrical fixtures within the Leased Premises only, and whether or not required by wear and tear, obsolescence, accidents or othervvise, except as set forth herein. Except as may be otherwise provided for in this lease, Lessor has no obligations to make repairs on, about or within the Leased Premises, or to paint, decorate or redecorate same. Lessee shall be responsible for all real and personal property taxes as may be assessed specifically applied against the Leased Premises during the lease term, and shall promptly pay same when due. Provided however that Lessee shall have no obligation to maintain, repair or replace any improvement, inctuding but not limited to structural improvements, the roof, doors, plate glass, windows, plumbing, heating and coo{ing systems and electrical fixtures should lessee elect to terminate the lease consistent with Section 19 of this lease, or should such maintenance, repair or replacement result from any other occupant of the Harborview Center or its invitees. lessee shall have no responsibility for real property taxes assessed against the Leased Premises attributable to any other occupant's presence in the Harborview Center, including but not timited to Pickles Plus Too. 8. OBSERVANCE OF LAWS AND ORDINANCES. Lessee agrees to observe, comply with and execute promptly at its expense during the term hereof, all laws, rules, requirements, orders, directives, codes, ordinances and regulations of governmental authorities and agencies and of insurance carriers which relate to its use or occupancy of the Oemised Premises. Page 4 of 13 9. ASSIGNMENT OR SUBLEASE. Lessee shall not, without first obtaining the written consent of Lessor, which consent may be withheld in lessor's sole discretion, assign, mortgage, pledge, or encumber this lease, in whole or in part, or sublet the premises or any part thereof. This covenant shall be binding on the legal representatives of Lessee, and on every person to whom Lessee's interest under this lease passes by operation of law, but it shall not apply to an assignment or subletting to the parent or subsidiary of a corporate lessee or to a transfer of the leasehold interest occasioned by a consolidation or merger involving such Lessee. If the Leased Premises are sublet or occupied by anyone other than Lessee, and Lessee is in default hereunder, or if this lease is assigned by Lessee, Lessor may collect rent from the assignee, subtenant, or occupant, and apply the net amount collected to the rent herein reserved. No such coNection shall be deemed a waiver of the covenant herein against assignment and subletting, or the acceptance of such assignee, subtenant, or occupant as Lessee, or a release of lessee from further performance of the covenants herein contained. 10. ALTERATIONS AND IMPROVEMENTS. Other than as expressly provided for herein, the Lessee shall not make any structural alterations or modifications or improvements which are part of the Leased Property without the written consent of the Lessor, and any such modifications or additions to said property shall become the property of the Lessor upon the termination of this lease or, at Lessee's option, the Lessee shall restore the Leased Property at Lessee's expense to its original condition. The restrictions of this paragraph shall not apply to maintenance of the Leased Property, but shall apply to any change which changes the architecture or purpose of the property or which changes any of the interior walls of the improvements or which annexes a fixture to any part of the Leased Property which cannot be removed without damage thereto. In the event Lessee desires to make any alterations or modifications, written notice shall be given to the Lessor. Unless the Lessor objects to such proposals by notice to Lessee within twenty (20) days after written notice from Lessee, the proposal shall be deemed approved. Lessee shall have no power or authority to permit mechanics' or materialmen's liens to be placed upon the Leased Property in connection with maintenance, alterations or modifications. lessee shall, within fifteen (15) days after notice from Lessor, discharge any mechanic's liens for materials or labor claimed to have been furnished to the Leased Premises on Lessee's behalf. Not later than the last day of the term Lessee shall, at Lessee's expense, remove all of Lessee's personal property and those improvements made by Lessee which have not become the property of Lessor, including trade fixtures and the like. All property remaining on the leased Premises after the last day of the term of this lease shall be conclusively deemed abandoned and may be removed by Lessor, and Lessee shall reimburse Page 5 of 13 Lessor for the cost of such removal. The Parties hereto acknowledge and agree that it is the Lessee's intent to apply immediate improvements to the leased Premises to render the Demised Premises useable for lessee's purposes. lessee shall provide a detailed schedule of said improvements together with the cost associated with same, which are in addition to lessor's Capital Expenditures, and seek Lessor's approval as provided for in this paragraph, prior to proceeding to install same, with such schedule attached hereto as Exhibit D. In no event shall Lessor be liable to reimburse Lessee for such improvements except as set forth in Section 18(d) herein. 11. RISK OF LOSS. All personal property placed or moved in the premises shall be at the risk of the Lessee or owner thereof. The Lessor shall not be responsible or liable to the lessee for any loss or damage that may be occasioned by or through the acts or omissions of persons occupying adjoining premises or any part of the premises adjacent to or connected with the Leased Premises hereby leased or any part of the building which the Leased Premises are a part of for any loss or damage resulting to the Lessee or its property from bursting, stopped up or leaking water, gas, sewer or steam pipes. 12. RIGHT Of ENTRY. The lessor, or any of its agents, shall have the right to enter said Leased Premises during all reasonable hours, to examine the same, to make such repairs, additions or alterations as may be deemed necessary for the safety, comfort, or preservation thereof. Should Lessee default in any of its maintenance responsibilities as heretofore provided, all costs and charges for which Lessor shall invoice to Lessee for reimbursement shall be paid within 15 days following receipt. The right of entry shalt likewise exist for the purpose of removing placards, signs, fixtures, alterations or additions, which do not conform to this agreement. 13. RESTORING PREMISES TO ORIGINAL CONDITION. In addition to the Capital Expenditures contemplated in Exhibit "C", Lessee acknowledges and represents that the Premises are in need of certain improvements for which Lessee shall submit written notice in accordance with Paragraph 10 herein, seeking approvai of Lessor to conduct and install such improvements. lessee's acceptance or occupancy of the Leased Premises shall constitute recognition of such condition. Lessee hereby accepts the premises in the "AS IS CONDITION" they are at the Commencement Date and agrees to maintain said premises in the same condition, order and repair as they are at the Commencement Date, and to return the Leased Premises to their original condition at the Page 6 of 13 expiration of the term, excepting only reasonable wear and tear arising from the use thereof under this agreement. 14. INSURANCE. Lessee agrees to provide at its sole cost and expense the following policy or policies of insurance through firms authorized to provide such insurance within the State of Florida: Lessee shall procure and maintain for the life of the lease, General liability Insurance. This coverage shall be on an "Occurrence" basis. The policy shall provide coverage for death, bodily injury, personal injury or property damage that could arise directly or indirectly from the performance and operation of this Lease. The minimum limits of coverage shall be $1,000,000 Per Occurrence Combined Single Limit for Bodily Injury Liability and Property Damage. The lessor shall be included and identified as an Additional Insured under the policy and on the Certificate of Insurance. The insurance coverages and conditions afforded by these policies shall not be suspended, voided, cancelled or modified except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City's Risk Management Office. All insurance policies required within this provision shall provide for commercially reasonable deductibles Certificates of Insurance meeting the specific required insurance provisions specified in this Lease shall be forwarded to the City's Risk Management Office and approved prior to the Commencement Date. After review, the Certificate will be filed as part of the official Lease file. 15. RADON GAS NOTIFICATION. Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in sufficient quantities, may present health risks to persons who are exposed to it over time. Levels of radon that exceed federal and state guidelines have been found in buildings in Florida. Additional information regarding radon and radon testing may be obtained from your county health unit. 16. DESTRUCTION OF PREMISES. Page 7 of 13 In the event that the building should be partialfy or totally destroyed by fire, earthquake, hurricane or other natural cause, neither Lessor nor Lessee shall have any obli�ation whatsoever to repair or rebuild the Leased Premises. Lessee may either terminate the lease or undertake to rebuild or repair at Lessee's expense, in Lessee's sole discretion. Lessee may terminate the lease from the date of occurrence of such event through the remainder of the term. If Lessee elects to continue in occupancy and pursue repair and rebuild of the Premises, Lessee shall restore the Premises to a condition as near as practicable to the condition prior to the event. In no event shall the destruction of the Premises relieve the Lessee of its obligation to reimburse Lessor for Capital Expenditures which have already been made. 17. RESERVATION BY 1E550R. Throughout the term hereof, Lessor reserves unto itself during and throughout certain scheduled public events, including but not limited to those set forth below, held within Coachman Park and its environs, the right and privilege to reserve for its exclusive use all parking within the parking lots adjoining the Demised Premises, with the exception of those spaces assigned to the use of Pickles Plus Too, (Pickles") together with ingress and egress thereto: • Superboat Offshore National Championship — September 29th through October 2nd • Hispanic Heritage Festival — October 10tn • Clearwater Jazz Holiday — October 14th through October 17tn • Christmas Under The Oaks — November 13"' and November 14tn � Sea Blues Festival — February 18ih and 19tn • Clearwater Celebrates America — July 4cn Otherwise, Lessee shall have the non-exclusive use of the public parking lots to the North and West of the Leased Premises, without charge, on a first-come, first-served basis. In addition, Lessee's parking rights shall be subject to the parking rights of Pickles as set out in that certain Lease between the Lessor and Pickles, dated August 15,1995, as amended. 18. OEFAULT; REMEDIES; TERMINATION BY LESSOR. (a) Lessee further covenants that if the lessee shall violate or default upon any of the covenants, provisions, terms, conditions and obligations imposed on Lessee upon entering into this lease, and shall fail to correct such violation or default within fifteen (15) days after a written request by the Lessor to do so, or if such default cannot be cured within fifteen (15) days and Lessee fails to exercise good faith efforts to cure such default, then the Lessor may, Page 8 of 13 at its option, deem this lease terminated, and lessee shall become a tenant at sufferance, and the Lessor shall be entitled to obtain possession of the premises as provided by law. (b) In case the Leased Property shall be abandoned, as such term is defined by Florida Statutes, the Lessor, after written notice as provided by Florida Statutes to the lessee, Lessor may (i) re-enter the premises as the agent of the Lessee consistent with Fiorida law and may relet the Leased Property as the agent of the Lessee and receive the rent therefore and apply the same to the payment of such expenses as Lessor may have incurred in connection with the recovery of possession. Thereafter, it shall be applied to the payment of damages in amounts equal to the rent hereunder and to the cost and expenses of performance of the other covenants of Lessee as provided herein; or (ii) the Lessor may, at its option, terminate this lease by giving the Lessee fifteen (15) days written notice of such intention served upon the lessee or left upon the leased property, and the term hereof shall absolutely expire and terminate immediately upon the expiration of said fifteen (15) day period, but the lessee shall nevertheless and thereafter be liable to the lessor for any deficiency between the rent paid as of such date and the unreimbursed Capital Expenditures. (c) Lessor, at its option, may terminate this lease as for a default upon the occurrence of any or all of the following events: an assignment by lessee for the benefit of creditors; or the filing of a voluntary or involuntary petition by or against Lessee under any law for the purpose of adjudicating Lessee bankrupt; or for reorganization, dissolution, or arrangement on account of or to prevent bankruptcy or insolvency; or the appointment of a receiver of the assets of Lessee; or the bankruptcy of the lessee. Each of the fo�egoing events shall constitute a material default by Lessee and breach of this lease. (d) Lessor, at its option, may terminate this lease in the event the City Council votes at a duly constituted City Council meeting that the Lease Premises are needed for other municipal purposes and serves lessee with one hundred twenty (120) days notice of such intended use. In such event, Lessee shall be relieved of any obligation to pay Rent, Utilities and or Capital Expenditures effective as of the date of termination of the lease, and further, Lessor sha11 reimburse Lessee in an amount equal to the total sum of the cost of Lessee's improvements, renovations and expenditures to improve the leased Property for its intended use as set forth in Exhibit "D", multiplied by a fraction, with the numerator being the number of months remaining in the term as extended as of the date of termination by the City Counsel and the denominator being 30. (e) Both the Lessor and lessee shall be entitled to all remedies as provided by law. 19. TERMINATION BY LESSEE Page 9 of 13 Lessee may terminate this lease anytime during the Initial Term or Extended Term of this lease upon thirty (30) days written notice to lessor. !f Lessee terminates this lease prior to April 30, 2013, or if Lessee chooses not to extend this lease through April 30, 2013 as provided in Paragraph 1 above, Lessee shall reimburse Lessor for one hundred percent (100%) of the Lessor's then unrecovered Capital Expenditures, as specified in Paragraph 4 above, without interest. Recognizing Lessee's cost to vacate the Leased Property; Lessee may defer such reimbursement for three (3) months foHowi�g Lessee's vacation of the Leased Property. Following the three (3) month deferral period, monthly payments will resume until Lessor has fully recovered its Capital Expenditures. Such monthly payments will be calculated to establish equal monthly installments, but not less than the Base Payment provided in section 2, to be paid from Lessee to Lessor such that Lessor's unrecovered Capital Expenditures are fully recovered no later than April 30, 2013. 20. MISCELLANEOUS. (a) Lessor shall have the unrestricted right of assigning this lease at any time, and in the event of such assignment, the Lessor shall be relieved of all liabilities hereunder, provided that the successor Lessor shall become responsible for all of Lessor's obligations. (b) This contract shall bind the Lessor and its assigns or successors, and the Lessee and assigns and successors of the Lessee. (c) It is understood and agreed between the parties hereto that time is of the essence of this contract and #his applies to all terms and conditions contained herein. (d) It is understood and agreed between the parties hereto that written notice sent by certified or registered mail, overnight/express carrier with signature required, or hand delivered to the premises leased hereunder, shall constitute sufficient notice to the lessee, and written notice sent by certified or registered mail, overnight/express carrier with signature required, or hand delivered to the office of the Lessor shall constitute sufficient notice to the Lessor, ta comply with the terms of this contract. (e) The rights of the Lessor under the foregoing shail be cumulative, and failure on the part of the Lessor to exercise promptly any rights given hereunder shall not operate to forfeit any of the said rights. (f) It is hereby understood and agreed that Lessee shall use no signs in connection with the premises hereunder, except as same shall comply with provisions of Article 3, Division 18 of the City of Clearwater Land Development Regulations, as may be amended from time to Page 10 of 13 time, and other applicable law, and such signs as Lessee may place inside the building, which signs shall be subject to the prior approval of the Lessor. (g) It is understood that no representations or promises shall be binding on the parties hereto except those representations and promises contained herein or in some future writing signed by the party making such representations or promises. 21. INDEMNIFICATION. The lessee shall indemnify the Lessor against all liabilities, expenses and losses incurred by the Lessor arising out of or related to its use or occupancy of the Leased Premises, to include but not being timited to: (a) failure by the Lessee, or its agents, to perform any provision, term, covenant or agreement required to be performed by the Lessee under this agreement; (b) any occurrence, injury or personal or property damage which shall happen in or about the Leased Property or appurtenances resulting from Lessee's operation and maintenance therein ;(c) failure to comply with any requirements of any governmental authority or insurance company insuring the Leased Property or its contents; (dj any security agreement, conditional bill of sale or chattel mortgage or mechanic's lien connected with Lessee, its obligations or operations, filed against the Leased Property, fixtures, equipment or personalty therein; and (e) any construction, work, alterations or improvements by Lessee on the Leased Property. Such indemnification shall include reasonable attorney's fees for all proceedings, trials and appeals and shall survive termination of this Lease. 22. "AS IS" CONDITION. Lessee accepts the Leased Premises on an "AS IS" basis, subject to the Capital Expenditures contemplated in Exhibit "C", and lessor shall have no obligation to improve or remodel the Leased Premises other than as specified in Section 4 above. 23. CONSTRUCTIVE EVICTION. lessee shall not be entitled to claim a constructive eviction from the premises unless lessee shall have first notified lessor in writing of the condition or conditions giving rise thereto and, if the complaints be justified, unless lessor shall have failed within a reasonable time after receipt of such notice to remedy such conditions. 24. JANITORIAL EXPENSES. Lessee shall either obtain or perform janitorial services for the Leased Premises at its expense. Page 11 of 13 25. SEVERANCE. The invalidity or unenforceability of any portion of this lease shall in nowise affect the remaining provisions and portions hereof. 26. CAPTIONS. The paragraph captions used throughout this lease are for the purpose of reference only and are not to be considered in the construction of this lease or in the interpretation of the rights or obligations of the parties hereto. 27. NO HAZARDOUS MATERIALS. The Lessee herewith covenants and agrees that no hazardous materials, hazardous waste, or other hazardous substances will be used, handled, stored or otherwise placed upon the property or, in the alternative, that such materials, wastes or substances may be located on the property, only upon the prior written consent of the Lessor hereunder, and only in strict accord and compliance with any and all applicable state and federal laws and ordinances. In the event such materials are utilized, handled, stored or otherwise placed upon the property, Lessee expressly herewith agrees to indemnify and hold Lessor harmless from any and all costs incurred by Lessor or damages as may be assessed against Lessor in connection with or otherwise relating to said hazardous materials, wastes or substances at anytime, without regard to the term of this lease. This provision shall survive the termination of this Agreement. The Lessor warrants that to the best of its knowledge the Leased Premises are free of hazardous materials, waste or substances as of the Commitment Date, 28. CONFORMANCE WITH LAWS. Lessee agrees to comply with all applicable federal, state and local laws during the term of this lease. Lessor shall ensure that the Premises is fully compliant with applicable ADA regulations as of the delivery of possession of the Premises to Lessee pursuant to the License Agreement. 29. ATTORNEY'S FEES. In the event that either party seeks to enforce any provision of this lease through attorneys at law, then the parties agree that each party shall bear its own attorney fees and costs. Page 12 of 13 30. GOVERNING LAW. The laws of the State of Florida shall govern this Lease; any action brought by either party shall lie in Pinellas County, Florida. 31. CAPITAL EXPENDITURES AND LESSEE IMPROVEMENTS fINAUZATIQN. The Parties hereto acknowledge and agree that the estimated costs of the Capital Expenditures by Lessor (Exhibit "C") and the leasehold improvements made by Lessee (Exhibit "D") shall be finalized by the Parties on or before November 10, 2011 with Exhibits "C" and "D" amended as necessary to reflect such final costs and with the Base Payment described in Section 2 modified, as necessary. IN WITNESS WHEREOF, the parties hereto have executed this Contract as of the date set forth above. AS TO LESSEE: AS TO LESSOR: Countersigned: ,�_ti,ar.� !/ � Frank V. Hibbard, Mayor Approvect as to form: Attest: � Pamela Akin, City Attorney Cl.EARWATER MARINE AQUARIUM, INC. By: � David P. Yates, CEO CITY OF CLEARWATER, FLORIDA By; ` � r �� I�\i'arY 1l-c�� William B. Horne II, City Manager Rosemarie Call, City Clerk Page 13 of 13 9�F ��y . .r N�� ,._,, - � � /� .� � �` f' g � 4 � �, _�:��;� .. r �� V i t „� � � ?r ; � �` < ` � �� i �,� '�•�,� Ji ! i � ��4 � � t ' �� F , �,� r,� � '� . ' �� Y�.: � � � � �� i � , � � _��`.� , � ' " � � �. � � �!' M � � � # � ; �� - �,,,,,,f� � � : ,- . �i.,� � � , � � %�� ' � �i1'�� . t�. � � ' � � . � �'.. . � � � �•� �� ,,�_�� _ ,�; .:� � ��' , �� _;�,� �� , �� ; � • � � Y 1 . . ` �- L,Ill,j� � 16;Uif ll!131if; ii.�!r�' �i � I ( i I I .,'.'.i �. � ^d �� ._ . �*:, � g r. `��`' *�:, i , . � � t � �= " : , ' ��+ - �� , �► � �a �a �� s a i� N �E . s 0 50 100 Feet 1 inch = 100 Feet ^ Prepared by: NIa Gen B CD Reviewed B TM Date: 08/31/2 EngineeringDeparhnent P Y� Y� earwater �eO9�PhcTechnologyDivsion � ParkingArea � 100 S.Myrtle Ave, Ckarwater, FL17756 � �,: �n��ssz��so, Fa.: pn�szs��ss G�id #: 286B ' S-T-R: 16-29-15 wwwMyC� rw tercom Map Document: (V:\GIS\_Staf�Chns_DWlahony�ExhfbltA.mx toixiols r r NON-EXCLUSIVE'REVOCABLE LICENSE AGREEMENT TO ACCESS RENOVATE AND OCCCUPY HARBORVIEW CENTER This LICENSE AGREEMENT TO ACCESS, MAKE IMPROVEMENTS,AND OCCUPY HARBORVIEW CENTER('License'), is made and entered into this I 2l day of September 2011, ("Effective Date') by and between the CITY OF CLEARWATER, FLORIDA, a Florida municipal corporation ("Licensor'), and the CLEARWATER MARINE AQUARIUM, INC, a Florida non-profit corporation, having its principal place of business at 249 Windward Passage, Clearwater, FL 33767("Licensee's(each individually"Part'or collectively"Parties"). WITNESSETH: 1. License Premises: In consideration of Licensee timely and fully complying with the covenants and conditions herein contained, Licensor does hereby grant to Licensee and Licensee hereby accepts from Licensor, a non-exclusive License to utilize the following described premises owned by Licensor: The entire second(or"middle's floor of the Harborview Center,containing 54,000 square feet, more or less,of interior floor area,measured to the unfinished interior surfaces of its perimeter walls(°Licensed Premises"or"Premises')which is a portion of EDWARD MILL'S SUBDIVISION, Lot 3 Less Street, and Lots 4 and 5, ROMPON'S & BASKINS CORRECTED MAP OF CAUSEWAY BUSINESS DISTRICT, as recorded in Plat Book 57, Pages 1 and 2 of the public records of Pinellas County,Florida, and part of SUNSET COURT, all described as beginning at the Northeast comer of Block 1 of aforesaid ROMPON'S 8 BASKIN'S CORRECTED MAP OF CAUSEWAY BUSINESS DISTRICT;thence South 224.38 feet;thence West 566.62 feet;thence along the arc of a curve to the right, 197.75 feet; radius 679.20 feet, cord bearing N82M, 197.10 feet; thence N05°W, 189.48 feet; thenceNO3°West, 171.34 feet;thence along the arc of a curve to the right, 84.23 feet, radius 743.35 feet,cord bearing NO3"E, 84.18 feet;thence East,422.97 feet;thence along the arc of a curve to the right,67.22 feet, radius 163.84 feet, cord bearing N60 0E,66.75 feet;thence South100.31 feet;thence East 291.48 feet; thence South 183.27 feet to the point of beginning. Together with non-exclusive rights to use the parking area to the west of the Harborview building and common areas appurtenant to the Licensed Premises as necessary to utilize the Premises as described herein. 2. Use of License Premises and funding of Renovations: Licensee shall have the right and privilege to access and utilize the Licensed Premises only for the general purpose Exhibit B of preparing said premises for the operations of its typical business. More specifically, Licensee shall have access for purposes of cleaning, renovating, and making modifications and improvements (°Licensee Renovations") and for storing materials related to its business. This License is not coupled with an interest 3. License Term: This License is granted to Licensee as of the Effective Date and shall extend until midnight on October 31, 2011 unless terminated as otherwise provided for herein. It is the intention that the Parties will enter into a Lease Agreement on November 1, 2011, which shall provide for the terms and conditions of the Licensee's long term occupation of the premises. Notwithstanding the October 31,2011 expiration date of the License, this License shall terminate or expire upon the occurrence of any one,or more,of the following,whichever shall occur first: a. Licensee changes the use of the property, or abandons its use of the License Premises for a period of sixty(30)days;or, b. Material default by Licensee in the performance of any of the terms, covenants or conditions of this License, and in the failure of Licensee to remedy, or undertake to remedy, to Licensor's reasonable satisfaction such default for a period of thirty (30) days after receipt of Notice from Licensor to remedy same;or, 4. At such time as any of the aforementioned events occur, all rights granted herein in favor of the Licensee shall automatically extinguish and the License Premises shall revert fully to the Licensor as if this License had never been granted. 5. Liability / Indemnification: Licensee, its partners, officers, directors, employees, representatives, attomeys, agents, successors and assigns Cindemnitors'7, shall save and hold harmless the Licensor, its successors and/or assigns,from any and all liability arising from injury to person or property during the term hereof, and do hereby release and forever discharge Licensor for and from any and all Claims which lndemnitors ever had, now have, or hereafter can, shall or may have against Licensor for, upon or by reason of any matter, cause or thing, whatsoever, arising out of or related to the Licensee's use of the Licensed Premises _(each- a "Released Claim"), said indemnification limited by Licensee's applicable insurance coverages. lndemnitors hereby covenant and agree to forever forbear from alleging, asserting, bringing, commencing, instituting, maintaining, prosecuting or otherwise pursuing against Licensor any Released Claim. Indemnitors further agree that this release may be pleaded by the Licensor as a full and complete defense to any Released Claim that may be alleged, asserted, brought, commenced, instituted, maintained, prosecuted or otherwise pursued against Licensor. "Claims„ means any and all actions, adjudications, awards, causes of action, claims, costs, damages (including, without limitation, consequential damages), demands, 2 expenses (including, without limitation, attorneys', consultants' and experts' fees and disbursements actually incurred in investigating, defending, settling or prosecuting any daim, litigation or proceeding), fees, fines, forfeitures, injuries, judgments, liabilities, liens, losses, obligations, orders, proceedings, penalties, stop notices and suits of any kind or of any nature whatsoever. Licensor will not accept and explicitly renounces any liability of any nature for use of the License Premises by the Licensee, its partners, officers, directors, employees, representatives, attorneys, agents, successors and assigns. The Licensee acknowledges and makes assurances, upon which the Licensor relies in granting this License,that the Licensee will not open the Licensed Premises to any parties other than those necessary to fulfill the express purposes of this License. Under no circumstances shall the Licensed Premises be open to,or accessed by,the general public. Nothing contained herein shall be construed to waive or modify the provisions of Florida Statute 768.28 or the doctrine of sovereign immunity as to Licensor. In addition, nothing contained herein shall be construed as creating third party beneficiaries or as consent by the Licensor to be sued by third parties in any manner arising from this grant of License. 6. Insurance: During the term of this License, Licensee shall procure and maintain, at its sole cost and expense, the following policy or policies of insurance through firms authorized to provide such insurance within the State of Florida: a. Insurance: 1. Comprehensive General Liability Insurance on an"occurrence*basis in an amount not less than $1,000,000 combined single-limit Bodily Injury Liability and Property Damage Liability, with explosion exclusion removed. 2. Workers'Compensation Insurance applicable to its employees for statutory coverage limits,and Employers'Liability which meets all applicable state and federal laws. b. Additional insured The City is to be specifically included as an additional insured on all liability coverage shown in section 1 described above. c. Notice of Cancellation or Restriction All policies of insurance must be endorsed to provide the City with thirty (30)days' notice of cancellation or restriction. 3 d. Certificates of Insurance/Certified Copies of Policies Prior to commencement of this License, the Licensee shall provide the Licensor with a certificate or certificates of insurance showing the existence of the coverage as required by this License. The Licensee will maintain this coverage with a current certificate or certificates of insurance throughout the term stated in the License.When specifically requested by the Licensor in writing, the Licensee will provide the Licensor with certified copies of all policies of insurance as required above. New certificates and new certified copies of policies (if certified copies of policies are requested) shall be provided to the Licensor whenever any policy is renewed, revised, or obtained from other insurers. e. The certificates and/or certified policies shall be sent or delivered to the Risk Manager and addressed to: The address where such certificates and certified policies shall be sent or delivered as follows: City of Clearwater P.O. Box 4748 Clearwater, FL 33758-4748 7. Other Provisions: Integral to the rights and privileges herein granted,the parties further agree as follows: a. Licensee shall at all times maintain the License Premises in compliance with all applicable City of Clearwater codes. b. Licensee shall be responsible for direct costs associated with its occupation and activities under this License, including but not limited to, all expenses for utilities required for the operation and maintenance of the License Premises. K is the intent of the Parties that the Licensor shall maintain its utilities accounts which service the Licensed Premises, with the Licensee reimbursing the Licensor for the total cost of such utility expenses as a portion of its reimbursement of the Capital Expenditures as defined in that certain Business Lease Contract to be entered into by the Parties on or before November 1, 2011. c. Licensee, at its sole expense, shall comply with all applicable Federal, State and Local environmental laws, and shall not allow the storage, ece, disposal, or discharge by itself or others, of any contaminants or hazardous materials as defined in State, Federal or Local environmental laws on or about the License Premises. d. If this License, or its operation, shall create any ad valorem or other tax obligations, it shall be incumbent solely upon Licensee to timely discharge same. 4 8. Notice: Any notice given by one party to the other in connection with this License shall be sent by certified mail, return receipt, with postage and fees prepaid, addressed as follows: If to Licensor. Rod Irwin,Assistant City Manager City of Clearwater P. O. Box 4748 Clearwater, Florida 337584748 If to Licensee: R. Nathan Hightower, Esquire .P.O. Box 4376 Clearwater, Florida 33758 9. (Quiet EniaMant Upon observing and performing the covenants, terms and conditions required by this License, the Licensee shall peaceably and quietly hold and enjoy the License Premises for the indeterminate term as stipulated herein,without hindrance or interruption by Licensor. It is expressly understood and agreed that all rights of ownership of the License premises not inconsistent with the license rights herein conveyed to Licensee are reserved to Licensor. 10. Entire Agreement: This License contains all of the terms, conditions and covenants binding the parties hereto. There are no other terms, conditions, covenants or understandings, either written or oral, binding upon the parts unless expressed herein in writing, or subsequently addended hereto by mutual agreement of the parties. IN WITNESS WHEREOF, the undersigned parties have hereunto affixed their hands and seals the day and year first above written. Signed,sealed and delivered Clearwater Marine Aquarium,Inc. In the o#: By: X 46� 1 Witness signature Print Name :DA z P.I vk?-" L. Title P nt itness name r/ Wkiess signature V,40, V.6w (9 Print Witnes namb 5 Countersigned: CITY OF CLEARWATER,FLORIDA 11/ . By: Frank V. Hibbard, Mayor Wi iam B. Home, 11,City Manager Approved as to form: Attest: S Olt Pamela Akin, City Attomey Rosemarie Call, City C a 6 I. Capital Renovation Costs A. Building Repairs/Renovations BUDGtT Ceiling Tiles&Interior walls $4,597 Completed A/C Cleaning and Repair $ 10,000 Start this week Fresh Air System Cleaning and Code Update $ 25,000 Start this week Wall Demolition,Partitions and Emergency Exit $ 10,000 80%Complete Install Double Doors—West Wall Exit $ 51000 60%Complete Inspect Fire Alarm System and Install Voice Evacuation System $ 20,000 20%Complete Inspect and Repair Sprinkler System $ 10,000 40%Complete Install Fencing,Concrete Ramp,Parking Deck $ 81000 Start this week Roof Repairs S800 100%Complete Subtotal: $93,397 B. Parking Improvements $ 6,150 C. landscaping and Grounds $ 7.500 Subtotal: $107,047 It. EstiMMW Interim OoeMUnt Costs A. City of Clearwater Utilities $ 900 B. Progress Energy $ 15.750 Subtotal $ 16,650 TOTAL: $123,697 EXHIBIT C ESTIMATED Non Recurring Expenses(Bulldina°Modifications at Exhibit sulid out) _ ) As of 8/31/11 lorralne's Home/Garage $80,000 Grand Hail Touch Tank 2,000 Gift Shop Dlspiays 5,000 Check out counters 2,000 POS Terminals 10,000 Computers 1,200 Exhibit Signage 20,000 Sound System/PA 51000 Office furniture 2.500 Total Non-recurring Expenses $127,700 Exhibit D