Okaloosa County BOCC — August 2, 2016 — 2016-08-02 Assignment FINAL — reading text

ASSIGNMENT, ASSUMPTION AND FIRST AMENDMENT OF LEASE THIS ASSIGNMENT, ASSUMPTION AND FIRST AMENDMENT OF LEASE ("Agreement") is entered into to be effective as of the _____day of August 2016 by and between GULF COAST MARINE LIFE CENTER, INC., a Florida not-for-profit corporation f/k/a Aquagreen, Inc., a Florida not-for-profit corporation whose address is 155 Crystal Beach Drive, Ste. 101, Destin, FL 32548 ("hereinafter referred to as "Gulf Coast”) and DB ENTERTAINMENT PRODUCTIONS, LLC, a Florida limited liability company whose address is 1306 Miracle Strip Parkway, SE Fort Walton Beach, Florida 32548 (hereinafter referred to as "DB") and Okaloosa County, a political subdivision of the State of Florida whose address is 1759 Ferdon Blvd. Crestview, FL 32539 (hereinafter referred to as “Lessor”). WITNESSETH: WHEREAS, GULF COAST entered into that certain Lease Agreement with Lessor effective as of August 21, 2012, (the "Lease") for the vacant real property (the “Premises”) located at 105 Santa Rosa Blvd., Fort Walton Beach, Florida 32548, and more particularly described and depicted on Exhibit “ A”, attached hereto; and WHEREAS, GULF COAST d e s i r e s t o a s s i g n t h e L e a s e f o r t he Premises to DB, such that DB will become successor in interest to the leasehold interest of GULF COAST; and WHEREAS, DB has agreed to assume the Lease to therefore reflect DB as Lessee, as particularly hereinafter set forth herein; and WHEREAS, Lessor and DB desire to amend certain provisions of the Lease subsequent to its assignment. NOW, THEREFORE, for and in consideration of the sum of Ten and No/100 Dollars ($10.00), and the premises, and other good and valuable consideration, the receipt, adequacy and sufficiency of which are hereby acknowledged by the parties hereto, the parties hereto covenant and agree as follows: 1. Defined Terms. Whenever defined terms and words of art are used herein, as indicated by the initial capitalization thereof, such defined words and terms of art, if not defined herein, shall have the same meanings ascribed thereto in the Lease. 1  2. Assignment and Assumption of Lease. Gulf Coast does hereby assign and transfer all of GULF COAST's interest in the Lease to DB and DB does hereby assume GULF COAST’s obligations under the Lease effective on and after the date first set forth above. 3. Acknowledgement and Consent to Transfer and Attornment. Lessor hereby acknowledges and consents to the transfer of the Premises and the Lease from Gulf Coast to DB. The parties agree that DB under the Lease shall hereinafter be the successor lessee and Gulf Coast agrees to attorn to DB under the Lease. 4. Representative. The authorized representative for DB shall be: Paul A. Barcus, President DB ENTERTAINMENT PRODUCTIONS, LLC 1306 Miracle Strip Parkway SE Fort Walton Beach, Florida 32548 paulbarcus@gmail.com (404) 323-9876 5. Lease Amendments: Lessor and DB do hereby amend the Lease as follows: A) Section 3 of the Lease entitled “Rent” shall be replaced in its entirety with the following provision: RENT: Lessee covenants and agrees to pay as rent for leasing the Premises, the greater of: a) $78,650.00, which was the base rent, as previously adjusted according to the terms of the Lease for C.P.I., paid by Lessee for the 2015 lease year, per annum in advance annually, which rent shall be adjusted annually, beginning with the 2016 lease year, to reflect the increase in the Consumer Price Index. The rent shall be adjusted annually on its anniversary date to reflect the cost of living adjustment. All Urban Consumers for all items U.S. City Average, published by the Bureau of Labor Statistics, U.S. Department of Labor, 1982-84 = 1 – (C”CPI-U”). In the event the U.S. Department of Labor, Bureau of Labor Statistics ceases to publish the C.P.I., parties hereby agree to substitute another equally authoritative measure to change in the purchasing power of the U.S. dollar as may be then available. The annual adjustment shall be effective on each anniversary date of the Lease Term and shall be based upon the percentage difference between the C.P.I. for the previous twelve (12) month period ending December 31 and the C.P.I. for the twelve (12) month period ending December 31 of that year of the lease term multiplied by the current year’s lease fee (“Base Rent”). OR b) Three percent (3%) of annual gross receipts from all income sources under the Lease. Within sixty (60) days after the end of each lease year, the Lessee shall provide to the Lessor a report prepared by a certified public accountant certifying the Lessee’s gross receipts from the prior year’s operations under the Lease. If Three percent (3%) of the certified gross receipts exceeds Base Rent, then the Lessee shall remit the excess amount to Lessor within thirty (30) 2  days of delivery of the certified report. c) As additional rent or consideration, Lessee covenants and agrees to pay Lessor any State sales tax due on the rent paid to Lessor or upon any other requirement of this Lease, including and interest and penalties that may be assessed on that amount, plus any ad valorem, intangible, or other tax or assessment on the property, or improvements imposed by State, Federal, or County law, or Ordinance. The term “gross receipts” as used herein shall mean all receipts from sales of merchandise and charges for services at, in or supplied or ordered from the Premises whether for cash or credit, including all sales and services of any licensees or concessionaries of Lessee operating on the Premises, but gross receipts shall include only the amount actually received by Lessee from sales and services or any cigarettes, photography, vending machines or coin operated concession or any concessions or licenses for other incidental services or facilities at the Premises. All sales originally made at the Premises, and all services originally contracted for at the Premises, shall be considered as made and completed therein, even though payment may be transferred to some other place for collection, and even though delivery of merchandise or services be made from or at a place other than the Premises. Gross receipts shall not include: a. Sums received as an agent or collecting medium for any unaffiliated or unrelated entity or any governmental authority including, but not limited to, (i) sales, excise and similar taxes paid by patrons, and (ii) music or entertainment charges which are remitted by Lessee, as an agent or collecting medium, to bands or entertainers or agencies for bands or entertainers. Actual receipts in payment of bills for sales or services on credit, the charge for which is included in the foregoing definition of gross receipts. b. Refunds or credits to patrons for returned merchandise. c. Cash register “over-rings”, i.e., mistakes. d. Transfers of merchandise from the Premises, and not representing sales from the Premises, to their locations at which any parent, subsidiary or affiliate of Lessee conducts business. e. Net charges paid by Lessee to credit card companies (such as American Express Company) on credit card sales. f. Sales of any Lessee’s chattels, fixtures or equipment. B) Section 4 of the Lease entitled “Use of Premises” shall be replaced in its entirety with the following provision: 3  4. Use of Premises: DB shall use the premises for the expansion of the adjacent Wild Willy’s Adventure Zone park purposes as outlined in that tenant’s original response to the Lessor’s RFP# BCC 09-12 onto the Premises, and will not use or permit the use of the Premises for any other purpose not specifically stated without first obtaining the consent in writing of Lessor. C) Section 26 of the Lease entitled “Construction” shall be amended to require DB to have Phase One of its project completed and operational within one (1) year of the execution of this Agreement by Lessor with the remaining phase(s) of the project completed and operational within two (2) years of the said Agreement execution date. D) A new section 34 is created and added to the Lease. It shall read as follows: 34. Maintenance and Examination of Lessee’s Records: Lessee shall maintain separate accounting records for: (i) gross revenue derived directly from the use of the Premises, (ii) the gross revenue derived indirectly from the use of the Premises, and (iii) all other gross revenue derived from the Lessee’s operations on the Premises. Lessee shall secure, maintain and keep all records for the entire term of this Lease plus three (3) additional years. Lessor shall have the right from time to time, at its sole expense, to audit the compliance by the Lessee with the terms and conditions of this Lease and such right shall extend for three (3) years after termination or expiration of this Lease. Under no circumstances shall the Lessee withhold or otherwise fail to provide to the Lessor or the Lessor’s designee, any requested records relating to the revenues derived directly or indirectly from the use and operations of the Premises regardless if the information is deemed by the Lessee to be proprietary or otherwise confidential. E) A new section 35 is created and added to the Lease. It shall read as follows: 35. Compliance with Public Records Law: It is acknowledged that the Lease is for the use of public property. The Lessee shall comply with all applicable federal, state and local laws, including the provisions of Chapter 119, Florida Statutes relating to public records. Lessee shall allow public access to all documents, records and other materials, subject to the provisions of Chapter 119, F.S., prepared or received by DB in conjunction with this Lease. 6. Ratification. Except as herein specifically modified, the Lease is hereby ratified and confirmed and shall remain in full force and effect. 7. Counterparts: Facsimile or . pdf Signature. This Agreement may be executed in multiple counterparts, each of which shall constitute an original, but all of which taken together shall constitute one and the same agreement. For purposes of this Agreement, signatures to this Agreement transmitted by .pdf, electronic mail or other electronic means shall be treated as originals in all respects for purposes of this Agreement. 4  IN WITNESS WHEREOF, Gulf Coast Marine Life Center, Inc. and DB Entertainment Productions, LLC have caused this Agreement to be executed and sealed to be effective as of the day, month and year first above written. Witnesses: Original Lessee: ____________________________________ GULF COAST MARINE LIFE CENTER, INC., a Florida not-for-profit corporation Print Name:__________________________ By:_____________________________________ ____________________________________ Patrick J. Barcus, CEO Print Name:__________________________ Successor Lessee: DB ENTERTAINMENT PRODUCTIONS, LLC, _____________________________________ a Florida limited liability company Print Name:___________________________ By:_____________________________________