pitts slip sublease agreement.pdf

7/27/2019 Pitts Slip Sublease Agreement.pdf

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DnV S Prepared by and Retum to:-l *6"'.Pu' DanielR Lozier4' LozrE& THAMES & FRAZIE& p.A.

oR BK 4E5 L PBO3 1_ 5-' ?fi E?Au-r,lEfi i"8Er?5A i6t o "Etmwmtw8l:One Pensacola Plaza125 West Romana Steet Suite 224Pensacola, Florida 32501STATE OF FLORIDACOI'NTY OF DSCAMBIA

PITT SLIP MARINA SUBI T'ASFIAGREEMENT

THIS PITT SLIP MARINA SUBLEASE AGREEMENT ("Sublease"), is made andentered into effective the Zo*duy of APa, | , 2000, by and between SEVILLEHARBOUR, NC., formerly known as South Florida Marine lnvestors, [nc. a Florida corporation,or its assigns, (hereinafter referred to as "Sublessoy'' or "Lessor"), and MERRILL LAND, LLC, aFlorida limited liability company or its assigns (hereinafter referred to as "Sublessee" or "Lessee").WITNESSETH:

WHEREAS, Sublessor is the holder of leasehold interests in that certain Pitt Slip MarinaLease Agreement between the City of Pensacola, Florida and Florida Sun Intemational, Inc. datedSeptember 18, 1985, and recorded in O.R. Book 3624 at Page 104 of the Public Records of EscambiaCounty, Florida and that certain Lease Agreement between the City of Pensacola, Florida and theBoard of Trustees ofthe lnternal Improvement Trust Fund ofthe State of Florida as recorded in O.R.Book 2249 at Page 850 of the Public Records of Escambia County, Florida ("Submerged LandLease'), and that certain warranty deed dated July 25, 1990 and recorded in O.R. Book 2888 at Page963 of the Public Records of Escambia County, Florida ("Warranty Deed"), and that certainMemorandrun of Lease between the City of Pensacola, Florida and Florida Sun Intemational, Inc.,dated June 27,1986, as recorded in O.R. Book2249 at Page 859 of the Public Records of EscambiaCounty, Florida, (which documents, as amended, are hereinafter collectively referred to as the"Marina Lease"), the legal description of which is attached hereto as Exhibit A, and herebyincorporated by reference; and

WHEREAS, the Historic Pensacola Preservation Board of Trustees, an agency of the Stateof Florida has by its Wananty Deed conveyed the property described in the Submerged Land Leaseto the City of Pensacola which deed has resulted in a merger of title by operation of law; andWHEREAS, Lessor desires to lease to Lessee and Lessee desires to lease from lrssor allproperty and improvements described in the Marina Lease and as described in Exhibit A attached

and incorporated by reference, LESS and EXCEPT a portion of the Marina Lease property andimprovements which portion includes the submerged lands and a portion of the uplands, as moreparticularly described in Exhibit B, attached hereto and hereby incorporated by reference and as


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Psri[+fr'=eil+*t pGoSe-ov. FlorioaO:-zegrogdepicted by that certain description and description drawing by Northwest Florida Engineering andSurveying,Inc., dated January 13,2000, and all buildings, improvements, fixtures, and equipmenttheron, including all docks, piers, pilings, boat slips, fuel tanks, equipment, fixtures, utility lines,facilities, and other assets and properties related to or situated on or in the property described inExhibit B which property and improvements are hereinafter collectively referred to as the"Submerged Properties"; and

WHEREAS, the parties hereto desire to set forth the tenns and conditions of said Sublease;NOW TIIEREFORE, in consideration ofthe foregoulg, and in consideration of their mutual

covenants, tertrts, and conditions hereinafter expressed, the parties hereto agree as follows:I. THE PROPERTY

A. Subject to the terms and conditions set forth herein:(1) The Lessor subleases to the Lessee, and the Lessee subleases fiom the Lessor,the property and improvements described in the Marina Lease and as described in Exhibit A,attached and incorporated by reference LESS and EXCEPT the Submerged Properties including theproperty described in Exhibit B, attached and incorporated by reference. The property andimprovements hereby subleased to Lessee are sometimes hereinafter referred to as the "UplandProperties".

B. Lessor hereby retains a perpetual non-exclusive easement over and on the propertydescribed in Exhibit A, atiached hereto and hereby incorporated by reference, for ingress, egress,parking, signage, utility lines (including but not limited to water, electrical, sewer, gas, telephone,cable TV, and fuel storage and delivery systems) as well as for maintenance, construction, andreconsfuction of the Submerged Properties, (including but not limited to dredging operations). lnno event shall parking provided to Lessor by Lessee be less than the number of spaces required bythe City of Pensacola building code requirements in existence on the date hereof.

II. LEAffE TERMSThe term of this Sublease shall be for the remaining term of the Marina Lease plus anyextensions or renewals thereof. The Lessor and the Lessee agree to cooperate with each other in

securing renewals of the Marina Lease which renewals shall automatically extend this Sublease.III. LEASE PAYMENTS

Lessee shall pay rent to the Lessor in the amounts and manner set forth herein.A. Commencing with the date of this Sublease, through the end of the existing temr ofthe Marina Lease as currently extended or renewed, (without taking into account extensions or

renewals thereof executed after the date hereof), Lessee shall pay rnt to Lessor on a monthly basisin advance at the annual rate often (10) cents per square foot ofthe property described in ExhibitA, including the Submerged Properties described in Exhibit B. Upon any extension or renewal ofthe existing term, Lessee shall pay to Lessor upon the same terms and in the same manner as


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oR BK_ +E5 a pEose,.' = ifr E?Afi,,,Eft f "661?5i i6i d "imposed upon Lessor by the Marina Lease or extension thereot that portion of any increase inLessor's rental obligations under the Marina Lease (other than percentage rent obligations based ona percentage of gross sales or similar business volumes), attributable to the property described inExhibit A, LESS and EXCEPT the property described in Exhibit B as determined by an appraisermuhr,ally acceptable to Lrssor and kssee. If Lessor and Lessee do not agre upon an appraiser, theappraiser who conducted the fee appraisal described in Section II(C) of the Marina Lease shall makesuch determination and such determination shall be final and binding on the parties.

B. In addition to the rental payments provided for in paragnph trI (A), in the event thatl.essor is required to pay additional rent to the City of Pensacola in the form of a percentage of grosssales and gloss rentals as described in Section III (B) of the Marina Lrcase, then in such event, andsubject to Section III (BX3) below, the Lessee shall pay to the Lessor:

(1) Five percent (5o/o) of "Gross Sales," as hereinafter defined, from businessenterprises operated by the lrssee on the Upland Properties; except that the percentage attributableto marina fuel shall be fourtenths of one percent (0.4%) of sales up to one hundred fifty thousand(150,000)gallons, andone-half of onepercent Q.s%)of salesexceedingonehundredfiftythousand(150,000) gallons; and

(2) Five percent (5%) of "Gross Rentals," as hereinafter defined, received fromLssee's sublessee's, except that the percentage attributable to office rent, if any, shall be two andone-hal f pe r cent (2. 5o/o).

Commencing with the first anniversary date of this Sublease, the Lessee shall pay to theLessor the amounts required under both paragraphs III. A. above and this paragraph III. B. for theprevious year, however, any amount paid by the Lessee under paraglaph III. A. above shall beapplied to and shall reduce any amounts due under this paragaph III. B. (Example: If the Lesseeowed the Lessor the sum of $12,000.00 under paragraph III. A. above, during any given year, andthe application of III. B. above would require during that year the payment of $15,000.00 from theLessee to the Lessor, then the total amount paid to the Lessor by the kssee under both paragraphsIII. A. and III. B. for such year would be the sum of $15,000.00.)

In order to define, calculate, and verifr the amounts due the Lessor under this paragraph III.B., the following definitions and procedures shall apply:

(a) Defirftions of Gross.Rentals and fiross Sales:(i) As used hereiru the term "Gross Rentals" shall mean all rentsor other monies actually received by the Lessee from all business enterprises(sublessees or tenants - including any business enterprises operated by the Lessee)within the Upland Properties, including origination or renewal bonuses, butexcluding deposits for damages or performance and excluding any sums collected

and paid out for any sales, excise, or other taxes and excluding any sums collectedor received bv Lessee's sublessees or tenants.


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oR BK 455 t pc{13fl.3Esciiuia CountY, -ElPfida- rNSTRUf'IENT OO:7e8lO9gross sales as defined herein and shall h accompanied by payment. The Lessorreserves the right to require audited statements if, in the Lessor's opinion, the taxstatements and other financial data are insufficient for purposes of verification andaccounting for results of operations from the Upland Properties. In the event theLessor requests an audited statement and the results indicate that the percentagepayments made to Lessor are equal to or greater than ninety-seven percent (97%) otthe amount due, Lessor shall be required to bear the cost of the audit.

Such information as lrssee deems confidential to its operations shall be keptconfidential by Lessor; provided, however, that the Lessor may make publicdisclosure of such information using gross arnounts surnmarizing operations underthe entire Marina Lease and not disclosing results of operations of lrssee.3) Nonvithstanding Sections m @Xl) and (2) above, in such event that l,essor

is required to pay additional rent to the City of Pensacola in the form of a percentage of gloss salesand goss rentals as described in Section III (B) of the Marina Lease, Lessor and Lessee agree toequitably allocate said additional rent obligations between lrssor and Lessee herein in the proportionthat each party's gross sales and gross rentals giving rise to said additional rent obligation (ifany)bears to the total of all gross sales aod gross rentals giving rise to said additional rent obligation andif the parties are unable to reach agreement on said allocation, the dispute shall be resolved bybinding arbihation in accordance with the Florida Arbifation Code, as amended, Florida StatutesChapter 682 (1999), but in no event shall the additional rent obligation imposed upon Lessor relatingto sales of marina fuel exceed the limitations of Section nI (BXl) herein, nor sball the additional rentobligation imposed upon Lessee relating to office rent exceed the limitations of Section III(B)(2)herein. (C) The Lessee shall pay Lessor interest from the date when due on all rentpayments that are made by Lessee to Lessor more than fifteen (15) days after the date the rentpayments become due and payable. The interest to be paid by Lessee shall be the announcedcommercial prime rate of interest charged by Chemical Bank of New York, or its successor, as thatrate may change from day to day.

IV. AUTHORITY TQ LEASE PROPERTY[Intentionally left blank]

Y. USE OF LEASED PRQPERTYThe Submerged Properties shall be used by Lessor as a marina complex of approximatelyninety-four (9a) slips including a harbor master facility, ships' store, fuel facilities, compatible

marina uses, and other uses incidental thereto. Lessor shall at all times tluoughout the term hereofkeep and operate said marina complex.


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oR BK. 4E= 1_ pGO3e4==?iB?ifi'Eftt"86rr5liElo.VI. CONSTRUCTION OF IMPROVEMENTS

[Intentionally left Blank]VII. TITLN TO IMPROVEMENTS

[Intentionally left Blank]VIII. A.CCESS TO PROPERTY

During the term of this Sublease, and any renewal or extension hereof, Lessee shall permitthe representatives of the City of Pensacola and the Lessor access to the Upland Properties at allreasonable times deemed necessary for the purpose of the Marina Lease.

rK covENANTS AND RESTRICTTONSLessee acknowledges that this Sublease and the Submerged Properties are at dl times subjectto the terms, conditions, and restrictions of the Marina Lease.

x. TNpEMNIFICATION Arrp HqI/p HARIILESS AGREEMENTA. The kssee shall defend and indemnifu the kssor and the City of Pensacola and savethem harmless from any and all claims, suits, actions, damages, liability, and expense in connectionwith loss of life, bodily or personal injury, or property damage arising from or out of any occunncein, upon, at, or about the Upland Properties or any part thereof, or occasioned wholly or in part byany act or omission of the Lessee, its agents, contractors, employees, servants, invitees, licensees,or concessionaires.

B. The l,essor shall defend and indemnif, the Lessee and save it harmless from any andall claims, suits, actions, damages, liability, and expense in connection with loss of life, bodily orpersonal injury, or property damage arising from or out of any occulTenc in, upon, at, or about theSubmerged Properties, or any part thereof, or occasioned wholly or in part by any act or omissionof the Lessor, its agents, conhactors, employees, servants, invitees, licensees, tenants, orconcessionaires and shall further defend and indemnify the Lessee and save Lessee harmless fromand against any and all claims, suits, actions, damages, liability and expense arising from or out ofany environmental hazards, contamination, clean up expense, or other environmental matters directlyrelated to Lessor's marina fuel storage tanks, distribution lines, dispensing systems and waste oilcollection facilities.

XI. INSURANCE REQUIREDLessee shall maintain insurance and provide Lessor with certificates of insurance in

accordance with Exhibit C, attached hereto, during the life of this Sublease or if Exhibit C is notattached, in accordance with Lessor's insurance obligations under the Marina Lease. The Lessor


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E:#+fi]efl+*rull$FrF=shall have the right to make reasonable increases to the minimum required limits of liability inExhibit C dr.ring the life of this Sublease, but only if and only to the extent that said increases havebeen imposed upon Lessor by the City of Pensacola under the Marina Lease. Lessor shall, uponLessee's request, provide Lessee with proof of Lessot's compliance with insurance requirementsimposed upon Lessor by the Marina Lease.

XII. SPECIAL PROVISIONSA. The l,essee may assign its interest in this Sublease, provided that the Lessee obtains

the prior written consent of the Lessor to such assignments, which consent shall not be unreasonablywittrheld. The lrssor may assign its interest in the Marina Lease, provided that the Lessor obtainsthe prior written consent of the Lessee to such assignments, which consent shall not be unreasonablywithheld provided Lessor obtains written consent from the City of Pensacola. The Lessee and theLessor may assign their respective interests in this Sublease and the Marina Lease, respectivelywithout the prior written consent of the other pafiy, to a limited partnership or other form of businessassociation, provided that the party making such assignment remains liable for its monetaryobligations hereunder and provided that the other party is notified of such assignment in writing priorthereto.

B. The Lessee and the Lessor shall have the right to mortgage their respective interestsin the Upland Properties and inthe Marinakase property, respectively, provided, however, that allrights acquired under the mortgage shall be subject to all of the terms of this Sublease and the MarinaLease. There shall be no subordination of this Sublease nor ofthe Marina Lease. The parties agree,in case of a parly's default hereunder, to allow the defaulting party's mortgagor or its successors orassigns to operate the defaulting partyrs properties subject to the approval of the other party, whichapproval shall not be unreasonably withheld.

C. The Lessee shall pay any and all ad valorem real property taxes or other taxes thatmay be levied against the Upland Properties during the term of this Sublease. In the event that at anytime dwing the period of this Sublease, the laws of Florida or the interpretation of the laws of Floridaby an appropriate appellate court is altered so that no ad valorem real property taxes .ue required tobe paid on the Upland Properties and no ta:r or other levy is imposed in lieu of such ad valoremtaxation, then, and in that event, the Lessee shall pay to the Lessor on an annual basis, an amountequivalent to what the ad valorem real property taxes on the Upland Properties would have been hadthe Lessee been required to pay same. Provided, further, that in the event that the Upland Propertiesare at anytime during the lease term or any extension or renewal thereof, taxed as intangible personalproperty or any method other than ad valorem property taxation, then, and in that event, the Lesseeshall pay to the Lessor on an annual basis an amount equivalent to what the ad valorem real propertyta,res on the Upland Properties would have been had the Lessee been required to pay same, less anamount equal to the amount of intangible personal property ta,xes paid on the Upland Properties."Ad Valorem Taxes" shall mean city, county, and school taxes. If the aforesaid taxes are notseparately determined by the taxing authorities for the Upland Properties and the SubmergedPrtperties, then in such event such taxes shall be allocated to the parties in the proportion that thevalue of each party's proprty (Upland Properties or Submerged Properties) bears to the total valueof all property(Upland Properties and Submerged Properties) and if the parties are unable to reachagreementon said allocation, the dispute shall be resolved by binding arbitration in accordance withthe Florida Arbitration Code, as amended, Florida Statutes Chapter 682 (1999).


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OR BK 455 L PGOSAIEsearbia County. FloridaINSTRUilENT OO:7AgtO9D.' The Lessee shall be firlly responsible for the construction, maintenance, and

improvement of all improvements on the Upland Properties at the Lessee's sole cost and expense.E. To the extent that Lessor is required to post or cause to be posted a constnrction bond

by the Marina Lease for any construction in, oq or about the Upland Properties, the Lessee shall postor cause such bond to be posted.

F. fintentionally left Blank.]G. Lessee agrees that it will not discriminate upon the basis of race, creed, color, nationalorigin, age, sex, or religion in the construction, subleasing, use, occupancy, or operation of the

Upland Properties or in the improvements erected thereon.

Equal Opportunity Provision:l. In the constmction and operation of the improvements, neither thekssee nor any contactor or manager employed by Lessee shall discriminate againstany employee or applicant for employment because of race, color, religion, age, sex,or national origia and they shall take affinnative action to ensure that applicants areemployed, and that employees are teated during employment without regard to race,color, religion, age, sex, or national origin. Such action shall include, but not belimited to the following: employment, upgrading, demotion, or hansfer; recruitnent,or recruitment advertising; layoff or termination; rates of pay or other forms ofcompensation; and selection for training, including apprenticeship. The Lesseeagrees to post in conspicuous places, available to employees and applicants foremployment, notices to be provided by Lessee setting forth the provisions of thisEqual Opportunity Clause, and to cause any conEactor, subcontractor, or manager todo likewise.

2. The [,essee, its sublessees, and any contractor or manager shall in allsolicitations or advertisements for employees placed by them or on their behali statethat all qualified applicants will receive consideration for employment without regardto race, color, religion, age, sex, or national origin. They shall send to each laborunion or representative of workers with which they, or any of them, have a collectivebargaining agreement or other contract or understanding, a notice to be provided byLessee advising the labor union or workers' representative of their commitnentsunder this Equal Opportunity Clause, and shall post copies of the notice inconspicuous places available to employees and applicants for employment. Anysublessee, conhactor, or subcontractor shall comply witlt all provisions of ExecutiveOrder No. 11246 of September 24,1965, and of the rules, regulations, and relevantorders ofthe Secretary of Labor and shall fumish all information and reports requiredby Executive OrderNo. 11246 of September24,l965,and by the rules, regulations,and orders of the Secretary of Labor, or pursuant thereto, and will permit access toits books, records, and accounts by Lessee and the Secretary oflabor for purposesof investigation to ascertain compliance with such rules, regulations, and orders'


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E:#+f'n]efl1{ul?flFf' rLessee certifies that it does not and will not maintain or provide for its employees anysegregated facilities at any of its establishments and that it does not and will not permit its employees

to perform their services at any location under its control where segregated facilities are maintained.As used in this certification, the term "segegated facilities" means any waiting rooms, work areas,restrooms and washrooms, restaurants and other eating areas, time clocks, locker rooms and otherstorage or dressing areas, parking lots, drinking fountains, recreation or entertainment areas,transportation and housing facilities provided for employees which are segregated by explicitdirective or are in fact segregated on the basis ofrace, color, religion, or national origin, because ofhabit,local custom, or otherwise.H. If requested by kssor, the Lessee agrces to provide the Lessor wittr annual attendancereports. Said attendance reports shall be submitted to Lessor as requested by Lessor, during thernonth ofJuly ofeach year and shall provide occupancy data for a one (1) year period beginning on

July I and ending on June 30 ofthe previous year, such period constituting one (l) fiscal year.I. The Lessor shall have the right to close down the public marina located on theSubmerged Properties for reasonable periods of time for necessary maintenance and dredging.Lessee shall cooperate with kssor and the City of Pensacola in all maintenance dredging operationsby the City of Pensacola and/or Lessor.

J. [Intentionally left Blank.]K. The kssee, its transferees, grantees, successors, and assigns, shall irrevocably releasethe City of Pensacola, and the Lessor, and their agents or assigns, from any and all claims fordamages of whatever nature resulting from any dredging by the lBssor or the City of Pensacola"includingthe incidental depositing ofdredged materials resulting from dredging, bulkheading, and/orrip wrapping, and other incidental damage resulting from any dredgrng operations and the like whichmight occur. The parties, and their successors and assigns, agree to cooperate with each other inconnection with the securing of periodic dredgrng of the marina located in the Submerged Properties

and in this connection, agree to execul,e such applications, releases, and other documents necessaryor incidental to the approval of the U,S. Army Corps of Engineers or other public agency, toundertake and execute such dredging. The parties, their successors and assigns, further release eachother from any and all claims for damage occasioned or arising from any disturbance of the Baybottom, which results as a natural consequence, from normal periodic maintenance, bulkheading,rip wrapping, or dredging by either party, or by the City of Pensacola" either in the maintenance andrepair of the marina and Submerged Properties, or the use, maintenance, and ernployment of therights of the marina waterways.

It shall be the Lessor's responsibility to provide maintenance dredging within the leasedboundaries of the marina located in the Submerged Properties as L,essor in its discretion deemsnecessary for the operation of the public marina. The Lessor shall dredge solely to depths permittedby the DER and ACE Permits. Lessee shall cooperate with Lessor and the City of Pensacola to


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oR BK 4=-= \ P6{l3P' rerE I t ili+ i'tEn +ilb E.'EAI 68o "enable the City of Pensacola to meet its responsibility to provide maintenance dredging of the Bayapproach to the leased boundaries of the marina and Submerged Properties in accordance withmaintenance schedules of the Port of Pensacol4 or as otherwise deemed necessary by Irssor in itsdiscretionto maintain navigable access to the marina facility. Following any of Irssor's dredgingactivities, Lessor shall at its expense restore any Upland Properties damaged by said dredgingoperations to substantially the same condition as existed immediately prior to the commencementof said activities.

L. The Lessee shall be responsible for the installation and maintenance of allundergroturd Wilities, including elecfiical, gas, sewer, and water systems, at its sole cost and expense,for all,properties described in ttre Marina l.ease except those that are the responsibility of the Lessoras imposed by the next sentence. However, the Lessor shall, in turn, be responsible for theinstallation and maintenance of all undergound utilities, including electrical, gas' sewer, and watersystems, at its sole cost and expense, within the boundaries of the Submerged Properties. The kssorshall fumish the Lessee with adequate gas and garbage collection services at the Lessee's expenseand shall cause the City of Pensacola to meet its obligation to fumish said services under the MarinaLease.

M. [Intentionally left Blank.]N. [Intentionally left Blank.]O. [Intentionally left Blank.]P. [IntentionallY left Blank.]a. [Intentionally left Blank.]R. The parties agree to assist one another and the Lessor agees to cause the City of

Pensacola to assist the Lessor and the Lessee in any application for any planned or futuremodification of existing Department of Army or DER Permits.S. [intentionallY left blank.]T. To the extent the Lessor has any right of first refusal on any additional portions of

properties adjacent to or in the immediate vicinity of the properties described in the Marina Lease*ni"ft may be used for expansion Lessor agrees to cooperate in good faith with Lrssee and Lesseeagrees to cooprate in good faith with Lessor in the determination of whether said right of firstrJfusat will be exercised and if so, whether said additional properties shall be obtained forthe benefitoflessor, for the benefit oflessee, or for the benefit ofboth.

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ssrR[+#Fft=f *erl]flef#3Notwithstanding the foregoing provisions of this paragraph, if Lessee should defautt under

the terms of this Sublease, and Lessor should declare this Sublease forfeited, Lessor shall not disttnbany sublessee's possession of any subleased premises of the Upland Properties if such sublessee paysrentto Lessor in accordance with and otherwise complies with the terms of the sublease agreementbetween Lessee and said sublesee. Upon Lessot's entering into a lease agreement with a substitutelessee for the Upland Properties, said sublease shall be assigned to the substitute lessee and thesublessee shall become a sublessee ofthe substitute lessee and shall pay rsnt directly to the substitutelessee.

The failure of either party to insist in any one or more instances on a strict performance ofany of the terms and conditions of this Sublease, or to exercise any option set forth in this Sublease,shall not be construed as a future waiver or a relinquishment of the provision or option but it shallcontinue and remain in full force and effect. The receipt by either party of rent or any other benefithereunder from the other party, with knowledge of the breach of any term or condition hereoi shallnot be deemed a waiver of the breach and no waiver by either party of any provision hereof shall bedeemed to have been made unless expressed in writing and signed by the waiving party.

B. Lessor shall be in default hereunder if l,essor shall fail to perform any of the termsor conditions of this Sublease which kssor is to perform provided that Lessor has failed to cure orotherwise remedy such failure within ninety (90) days from the date of Lessee's notice to Lessor ofsuch failure, or if Lessor shall be in material default under the Marina Lease. Upon any such default,including but not limited to Lessor's material default under the Marina Lease, Lessee shall have theright but not the obligation to cure such default on Lessols behalfand for the account oflessor andany costs or expenses incurred by Lessee in curing such default, including but not limited toreasonable attomeys'fees, shall be due and payable from kssor to kssee, plus interest thereon fromthe date or dates expended until paid in full at the rate specified in Section III.B.(3) herein. IfLessor's default under the Marina Lease results in the City of Pensacola declaring a forfeiture of theMarina Lease, Lessee shall have the right but not the obligation to negotiate with and enter into anagreement directly with the City of Pensacola under which the properly described in the MarinaLease and the Submerged Properties are leased directly to Lessee upon such terms as the kssee andthe City of Pensacola may agree but such action by Lessee shall not constitute a waiver by Lesseeof any of its rights or remedies against Lessor hereunder.

XIV. ATTORNEYS'FEESIf default be made by either party in the performance of the terms, covenants, agreements,

and conditions set forth in this Sublease so that it becomes necessary to place the enforcement of thisSublease or any part hereof or the collection of any rent due or to become due hereunder or therecovery or possession of the Upland Properties in the hands of an attorney or to file suit upon thisSublease, the prevailing party shall be entitled to recover all of the costs inculred in such action,including reasonable attomeys' fees.

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oR BK 455 t trGll3=lE; tii+ aa'E[t" 8tt'5ai 6i"XY. NOTICES

All notices provided in this Sublease shall be suffrcient when sent by U.S. Certified Mail,Return Receipt Requested, postage pre-pard to the following addresses:

City of Pensacola: City of Pensacolac/o City ManagerCity HallPensacola, Florida 325A1Menill Land,LLCP. O. Box 710Pensacola, Florida 32593

with a copy to:Charles L. Hoffinan, Jr.Shell, Fleming, Davis & Menge226PalafoxPlarePensacola, Florida 32501Seville Harbour,lnc.c/o Ray RussenbergerNetwork Telephone Corporation815 S. Palafox Place, 3rd FloorPensacol4 Florida 325A1

Lessee:

with a copy to:Daniel R. LozierLozier, Thames & F mziel P.A.125 W. Romana Street, Suite 224Pensacola, Florida 32501

xyL PR0vrsIoNs BINDTNGThe terms and provisions of this Sublease shall be binding upon and shall enure to the benefit

of the panies hereto and their permitted successors and assigns, respectively.XVII. AMENDMF'NT

This Sublease may not be altered, changed, or amended except by an instument in writingsigned by the parties hereto.

Lessor:

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oR BK 455 L P6r=34Escarbia County. FloridaINSTRUIIIENT OO:7EB1O9xuII. SEVSRARTLITY

If any provision of this Sublease shall be declared in contavention of law or void as againstpublic policy, such provision shall be considered severable and the remaining provisions of thisSublease shall continue in full force and effect.XIX. HEADINGS

The paragraph headings in this Sublease are intended for convenience only and shall not betaken into consideration in any construction or inteqpretation of this Sublease or any of its provisions.XX. ENTIRE AGRqFMENT

This Sublease constitutes the entire agreement between the parties hereto on the subject ofthis Sublease and all prior or contemporaneous oral or written agreements or representations of anynature with reference to the subject matter of this Sublease are canceled and superseded by theprovisions of this Sublease.XXI. WAIVER

Failure on the part of any party to complain of any action or non-action on the part of theother party, no matter how long it may continue, shall never be deemed to be a waiver by either partyof any of its rights under this Sublease. Further, it is covenanted and agreed that no waiver at anytime of any of the provisions hereof shall be construed as a waiver at any subsequent time of thesame provisions. The consent or approval by either party to or of any action requiring consent orapproval from the other party shall not be deemed to be a waiver or render unnecessary consent orapproval to or of any subsequent similar act by said party.

XXII. TIME OF'THE ESSENCETime is of the essence in each and every provision, covenant, and condition of this Sublease

on the part of the parties hereto to be done and performed.)OilII. GOVERNING LAW

This Sublease is subject to and shall be governed by the laws of the State of Florida.xxrv. ArlprrroNAl sPECrALPRovIsIoNs

A. lrssor covenants and agrees to perform each of its obligations under and to otherwisecomply with the terms, conditions, restrictions, and provisions of the Marina Lease in a timelyfashion and further covenants and agrees to promptly provide to Lessee copies of any and all notices,claims, communications, or other conespondence of any kind directly or indirectly related to theUpland Properties and received by Lessor from the City of Pensacola or any other governmentalagency or body or any other third party. Lessor covenants and agrees to exert good faith best efforts

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oR BK 455 L PGO333E;ina?in'8fiY"88.'58 i6i o'to cause the City of Pensacolato perform each of its obligations under and to othenryise comply withthe terms, conditions, restrictions, and limitations imposed upon the City of Pensacola in the MarinaLease.

B. lessor covenants and agrees to indemni$ and hold Lessee harmless from and againstany and all claims, liabilities, calrses of action, damages, expenses, costs, including attorneys' fees,including those incurred in enforcing this indemnification obligation, which Lessee may suffer orincur as a direct result of Lessoy's material default under the Marina Lease.

C. It is the parties' intention that except as othenrise specified herein all rights, interests,liabilities, and obligations set forth in the Marina Lease and pertaining to the Submerged Propertiesbe and hereby are retained by Lessor for the purpose of permitting Lessor to continue owning andoperating the marina facilities located on the Submerged Properties in substantially the same manneras has been previously conducted under the Marina Lease.

D. In connection wittr the operation of ttre marina on the Submerged Properties, Lesseehereby subleases to the l.essor laundry, shower, and resfroom facilities existing on the improvementsconstucted on the Upland Properties and covenants and agrees to reasonably maintain said facilities.

E. Lessee shall not do nor cause to be done nor permit to be done anything on or inconnection with the real property described in the Marina Lease (other than the SubmergedProperties), which substantially and materially interferes with Lessols ability to occupy and operatethe marina located in and on the Submerged Properties.

F. This Sublease is at all times subiect to the terrns, conditions, and restrictions of theMarina Lease.IN WITNESS WIIEREOF, the parties hereto have executed this agreement effective thefirst date written above,

LESSOR:

STATE OF FLORIDACOUNTY OF ESCAMBIAThe foregoing instmment was acknowledged bcfore ^" An tduy of A4t.i ,2000, by Ray D.Russenbelger, as Presided of Seville Harbour, Inc., and who is personally

license as identification and haslhas not taken an oath.me or who has produced a driver's

NOTARYCommission No.

l5My Commission Expires: )/at/ - r


16/20

PrintName

Elr"ni+iaEFiul?flf,#fLESSEE:MERRILL LAND, LLCa Florida limited liability companyBy its sole member:

Witness

y'lar/u L llftPt 't'WitnessPrint Name4s { AtlWitnessPrintName:

WitnessPrint Name:

WitnessPrintName:

WitnessPrintName:

WitnessPrint Name:

WitrnessPrint Name:STATE OF FLORIDACOTINTY OF ESCAMBIA

The foregoing instument was acknowledged before m "u, tauy o1 - A ?l' t ,2000,by Burney H. Menill, as President of Menill Land Company the sole member of Menill Land, LLC,and who (r,fis personally known to me or who ( ) hasand has/has not taken an oath. ivels license as identification

NOTARY PUBLICCommissionNo.

MERRILL LAND COMPANY

By:

WILL6 C. MERRILL, IIL

t6My Commission Expires:


17/20

P:#+ft'=eF*eSTATE O['F'LORIDAcouNTY oF ESCAMBTA

_ LThe foregoing instnment was acknowledged before me this .4 day of 4 P,u.'l ,2000,by Burney H. Menill, who (-fs penonally known to me or who ( ) has^produced a drivet's licenseas identification and has/has not taken an oath. ,/1t'* r:irffil 2L

PEo33.5El?FeAiEio"

The foregoing inslrdnent was acknowledged before ^"An" ,auy of kru( , 2000,by J.C. Menill, who (1 is personally known to me or who ( ) has produced a drivels license asSTATE'OF'ruORIDACOUNTY O['ESCAMBIA

identification and has/has not taken an oath.

NOTARY PUBLICCbmmissionNo.My Commission Expires' ny'a/. r

NOTARY PUBLICCommissionNo.My Commission Expires: zJ */' t

NOTARY PUCommissionNo.My Commission Expires: 4zfla t

The foregoing instrument wagacknowledged before me tfris|laay sf df,a, I . 2696,by Willis C. ft{enif[ IlI, who ( ftpersonally known to me or *tt" t -l ttas ptoaucea u arive/s

i.=:;i -;=*:lf rtr i;;;fr 1X;556: n. .,,:' , , ,',i', ': :lti 'il ..ir" : t"i:1" '-t 11 ;,7 i" | : .

:1":'r'"; :"i';1:' ii.. i n ,:,.i;,.-,i.:.; l, ",',, t.. ;r"' : it'- - '.. :' ' ': 'i " ' :.;:"+-'' fSTATE OF T'I,ORIDA.: -.;COI]NTY OF ESCAMBIA

i u;-',t'11"e. ;';-; firi*l' '"r-jl-r .;,,tV ,it j. ...j..:.1...:_i

license as identification and has/has not taken an oath.

t7


18/20

oR BK 455 t pBO3:36Escarbia County. FloridaINSTRUFIENT OO_7ESTOgEXHIBIT *A'

PARCEL I:BEGIN AT THE SOUTHWEST CORNER OF BLOCK 8, WATERFRONT GRANT,ACCORDING TO MAP OF CITY OF PENSACOLA BY THOMAS C. WATSON,COPYRIGHTED IN 1906, SAID POTNT ALSO BEING THE INTERSECTION OF THEEASTERLY RIGHT-OF-WAY LINE OF BARRACKS STREET (60' R/W) AND THENORTHERLY RIGHT-OF-WAY LINE OF MAGNOLIA STREET (60'R/W) ; THENCE GONORTH 79 DEGREES 25 MINUTES 49 SECONDS EAST ALONG THE AFORESAIDNORTHERLY RIGHT-OF-WAY LINE A DISTANCE OF 175.00 FEET; THENCE GO NORTHl0 DEGREES 34 MINUTES 1l SECONDS WEST A DISTANCE OF 280.00 FEET; THENCE GONORTH 79 DEGREES 25 MINUTES 49 SECONDS EAST A DISTANCE OF I35.OO FEET;THENCE GO NORTH IO DEGREES 34 MINUTES 11 SECONDS WEST A DISTA}.ICE OF 3O.OOFEET; THENCE GO NORTH 79 DEGREES 25 MINUTES 49 SECONDS EAST A DISTANCEOF 827.08 FEET; THENCE GO SOUTH 10 DECREES 34 MINUTES 1 I SECONDS EAST ADISTANCE OF 310.00 FEET; TIIENCE GO SOUTH 59 DEGREES 34 MINUTES 30 SECONDSWEST A DISTANCE OF 191.38 FEET; THENCE GO SOUTH 79 DEGREES 25 MINUTES 49SECONDS WEST A DISTANCE OF 347.08 FEET; THENCE GO SOUTH l0 DEGREES 34MINUTES l1 SECONDS EAST A DISTANCE OF 95.00 FEET; THENCE GO SOUTH 79DEGREES 2s MINUTES 49 SECONDS WEST A DISTANCE OF 123.00 FEET; THENCE GONORTH 10 DEGREES 34 MINUTES II SECONDS WEST A DTSTANCE OF TOO.OO FEET;THENCE GO SOUTH 79 DEGREES 25 MINUTES 49 SECONDS WEST A DISTANCE OF487,A0 FEET TO THE NORTHWEST CORNER OF BLOCK 17, WATERFRONT GRANT,ACCORDTNG TO THE AFORESAID MAP OF THE CITY OF PENSACOLA, SAID POINTALSO BETNG THE INTERSECTION OF THE SOUTHERLY RIGHT.OF-WAY LINE OFMAGNOLIA STREET (60'WW) AND THE AFORESAID EASTERLY RIGHT-OF-WAY LINEOF BARRACKS STREET; THENCE GO NORTH IO DEGREES 34 MINUTES 1I SECONDSWEST ALONG THE AFORESAID EASTERLY RIGHT-OF-WAY LINE A DISTA}ICE OF 60.00FEET TO THE POINT OF BEGINNING, THE ABOVE DESCRIBED PARCEL OF LAND ISSITUATED IN SECTION 46, TOWNSHIP 2 SOUTH, RANGE 30 WEST, ESCAMBIA COUNTY,FLORIDA AND CONTAINS 8.529 ACRES, LESS AND EXCEPT THAT PORTION OF ADEPARTMENT OF TRANSPORTATION DRAINAGE EASEMENT IN A PORTION OF CEDARAND ALCANIZ STREET: AND

18


19/20

oR BK +55 1 PCqS=-7Elearbia EountY, Elqf-ida- - rr^rsTn[HENT O0:7eBlO9PARCEL I-A:ALL OF LOTS 1.I0,21 AND 22, AND THE WEST 20 FEET OF LOTS II.2O, BLOCK 8,WATERFRONT GRAl.lT, ACCORDING TO MAP OF CITY OF PENSACOLA BY THOI\4ASC. WATSON, COPYRIGHTED IN 1906, MORE PARTICULARLY DESCRIBED AS FOLLOWS:BEGIN AT THE NORTHWEST CORNER OF BLOCK 8, WATERFRONT GRANTACCORDING TO MAP OF CITY OF PENSACOLA BY THOMAS C, WATSONCOPYRIGHTED IN 1906, SAID POINT ALSO BEING THE INTERSECTION OF THEEASTERLY RIGHT-OF-WAY LINE OF BARRACKS STREET (60'R/W) AND TIIE SOUTHRIGHT-OF-WAY LINE OF CEDAR STREET (60'R/W); THENCE cO NORTH 79 DEGREES25 MINUTES 49 SECONDS EAST ALONG THE NORTH LTNE OF THE AFOFJSAID BLOCKI A DISTANCE OF 175.00 FEET; TI{ENCE GO SOUTH l0 DEGREES 34 MINUTES 1lSECONDS EAST A DISTA}ICE OF 25O.OO FEET TO A POINT ON THE SOUTH LINE OF THEAFORESAID BLOCK 8; THENCE Go SOUTH 79 DEGREES 25 MINUTES 49 SECONDSWEST ALONG TIIE AFORESAID SOUTH LINE A DISTANCE OF 175.00 FEET TO A POINTON THE AFORESAID EASTERLY RIGHT-OF-WAY LINE OF BARRACKS STREET; THENCEGO NORTH IO DEGREES 34 MTNUTES 11 SECONDS WEST ALONG THE AFORESAIDEASTERLY RIGHT.OF-WAY LINE A DISTANCE OF 25O.OO FEET TO THE POINT OFBEGINNING. THE ABOVE DESCRIBED PARCEL IS SITUATED IN SECTTON 46,TOWNSHIP 2 SOUTH, RANGE 30 WEST, ESCAMBI.A COUNTY, FLORIDA A}ID CONTAINS1.004 ACRES; ANDPARCEL III:ALL OF LOTS 14, II-|4AND A PORTION OF LOT 21, BLOCK 17, ALLOF LOTS I.4 ANDA PORTION OF LOTS 11-14, BLOCK 18, AND A PORTION OF ADAMS STREET,WATERFRONT GRANT, ACCORDING TO MAP OF CITY OF PENSACOLA BY THOMASC. WATSON, COPYRTGHTED IN 1906, MORE PARTICULARLY DESCzuBED AS FOLLOWS:BEGIN AT THE NORTHWEST CORNER OF BLOCK 17, WATERFRONT GRANT,ACCORDING TO MAP OF CITY OF PENSACOLA BY THOMAS C. WATSON,COPYRIGHTED IN 1906, SAID POINT ALSO BEING THE INTERSECTION OF THEEASTERLY RIGHT OF WAY LrNE OF BARRACKS STREET (60' R/W) AND THESOUTHERLY RIGHT-OF-WAY LINE OF MAGNOLIA STREET (60' R/W); THENCE GONORTH 79 DEGREES 25 MINUTES 49 SECONDS EAST ALONG THE AFORESAIDsourHERLY RIGHT-OF-WAY LrNE OF MAGNOLTA STREET (60',R/W) A DTSTANCE OF487.00 FEET; THENCE GO SOUTH 10 DEGREES 34 MINUTES 1l SECONDS EAST ADISTA].TCE OF IOO.OO FEET; THENCE GO SOUTH 79 DEGREES 25 MINUTES 49 SECONDSWEST A DISTANCE OF 487.00 FEET TO A POINT ON THE AFORESA]D EASTERLY zuOHT.OF-WAY OF BARRACKS STREET (60' R/W); THENCE GO NORTH l0 DEGREES 34MINUTES 11 SECONDS WEST ALONG THE AFORESAID EASTERLY zuGHT-OF-WAYLINE OF BARRACKS STREET (60'R/W) A DTSTANCE OF 100.00 FEET TO THE POINT OFBEGINNING. THE ABOVE DESCRIBED PARCEL OF LAND IS SITUATED IN SECTION 46,TOWNSHIP 2 SOUTH, RANGE 30 WEST, ESCAMBTA COTJNTY, FLOzuDA A].ID CONTAINS1.118 ACRES.

t9


20/20

a.r.!t e.u YYraa llrlf,tl{r ..

FltclTFlIT frBr{rlR BK 45= L trEo.s:=sEscarbia Eountv' FloridaINSTRUFIENT OO:7881O9

RCD Apr 26, aOOO 12:51 trrEscaibia Eounty, FloriilaErnie Lee tfaqahaof the Circ-uit Eourt

lrvr 9V\,, lv\rr;19'tr- f r Ll

clRUI|ENT OO-7e8109NA?THT''6T FLffiN'A EN6'NEMN6 AilO SURUNNG NGcanuENCE Ar fHE N&THWEST CffiNEn tr SLAA( 8, WATERF1ONT ffiAHT,ACC&OftNG rO.UAp tr fTtE Afy F pgryslcd.A 8y THWAS A WAT^QN,-COPYEIGHIM N EO6, &4N POIN| SENC fHE NTERSECNOil OF NE EAS1ERLYRlqtT-OF VAy LnVE F EARRAXS sntrr (AO',nlq AN| HE SOUnUERLI Rqdtrtr wAy LNE ff CAA? SnEET (60'Ry't)i THAnCE @ N&nt n oemees ziUNUTES 1,'SECAV'S EAST ALN6 rUE NMrA UTIE OF S/IID ELM( 8 A AETANCEOF I6ZOO FEET TO nHE PdNr 6 AEANMNq SilD PuTIT LYTNC fi FEET LANO'{ARDoF lH ,EAN HI6u vArER LNE oF Pe'tsAc0LA EAy; rH&,t68 coNnNUE NffifH zgD,Effiff,S 25 IINU\S ,g SCOTIDS EASr ALONE HE NEN UNE AF BLOCI( 8 A _asrAMc oF du) FEET; II1ENCE DEPARIIN? sAtD NRfiH thri tr gLoa( a,@ryqrH ,o oEffiEES J4 HNATES tt SECOTOS twsr A asrAilc F JAOO iEr;WENE @ NOqH 79 0E6RES 25 ttNUfES 19 g:64n0s EAsr A nRrANci oi

E-Sno F$T; flltrvcE ffi NORIH ,o ocRE$ Jl ttNUTEs il SEcWOs ,yEsT AOISTANCE ff JtOO FEET; \HENCE GO NOR\H 79 DEeEEs z,-uNUIEs 19 sicq,IosEASI A DtSrAilC F 827.08 FEET; fHEilE eO swTH to ncREEs gl itui-Ei iisEcaNDs EAsf A asrANcE oF Jra0o fEEf; rH&'tcE 60 sdJrH sg DEeEEs-i4 :uNufEs JO gcavos ,tET A DLSTANCE ff ,st.J8 TEEr;-ruiUCe CO aOUH ie0E6REE 25 UNUTES & fiCON^S WES| A UsrAilCE br sz.u FEEr;--rudct eotlqrH n DE&EE' J1 tn'ttfiEs fi SECA{OS t+ESr } Asftfib? oF tloo its io tdNr Lywc 80rH sww 66 oEffiEES 22 UNUTE| .to icovbs'asi-i'otsiaik'rgJ5.58 FEEf.FROil fHE pqNf oF AcNttNe ANo to-FtEi-ieNoi,,qno-iF iuiUAN HTG'I WATER L]NE Of PENSACOTA AAY; MAVCT ITANOffi TIESffiIY-AN,"-NORIHERLY ALAilC A LTNE nEW.E rc FEET LANDdAN, AiO'fuNNUA Or SNN-U1NUIIT6I] IYATER LNE rO \HE PAINT OF EEilI,TNNC.I?q A?OW OffiCRIEED PARCL OF LAND TS ilTUATED IN SECNAV 46, TOWNSTITP4 ^s9.u_r4 EANa Jo wEst; EsCAuaL4 couNry rtmn) iio'Carutts zACRES MORE AR LESS-

O$CflPNOil AS PfrNARED EY:

A SUR|I|ErTNG, NNC.FT.ORIDA, ffiSURWYDR & TIAPPER

CORPORATU NUIdBER 4882FT,ORIDA

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pitts slip sublease agreement.pdf

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