2023 - Bid 23-06 Lease of Public Property Final Version.pdf

PROJECT MANUAL

For

Bid#23-06

LEASE OF REAL PROPERTY

AT 100 BEACH AVENUE a/k/a “THE BROADWAY PAVILLION”

City of Cape May

JANUARY 10, 2024 AT 11:00A.M.

MAYOR & COUNCIL

Mayor Zachary Mullock

Councilmember Lorraine Baldwin

Councilmember Shaine P. Meier

Councilmember Michael Yeager

Councilmember Maureen K. McDade

Erin C. Burke, RMC, City Clerk

Michael Voll, City Manager

Legal Notice

Notice is hereby given by the City of Cape May that a bid for lease of 100

Broadway a/k/a the Broadway Pavilion, in accordance with N.J.S.A. 40A:12-

4(a) will be received and read on zoom by the City on January 10, 2024 at

11:00A.M. and conducted in electronic platform in accord with N.J.A.C. 5:34-1

et. Seq., on BidNet Direct at www.bidnetdirect.com//capemaycity

AT 100 BEACH AVENUE a/k/a “THE BROADWAY PAVILLION”

NOTE: It is the bidder’s responsibility to ensure that the bid package is uploaded onto the e-procurement site by the bid opening date and time. Any bid document received after the deadline established by the Department of Purchasing will not be accepted, regardless of the method of delivery.

Bid proposals must be accompanied by a certified check, cashier’s check, or bid bond in the amount of ten per centum (10%) of the total amount of the bid

(10% of first year’s rent), but not in excess of twenty thousand ($20,000) dollars and made payable to the City of Cape May. If bids are to be submitted electronically in accord with this notice, then the bidder shall submit a copy of the bid guarantee with electronic submittal and mail PRIOR to bid opening the original to the Municipal Clerks office 643 Washington Street, Cape May, NJ

08204. The bid guarantee may also be provided in certified check and cashier’s check in accord with provisions within general requirements of this bid.

The minimum rent required for this bid shall be $30,000.00 year 1, the City reserves the right to reject all bids not meeting the minimum bid.

Bidders must comply with the requirements of N.J.S.A. 10:5-31 et seq., and

N.J.A.C. 17:27 et. Seq., This procurement has been advertised in accordance with the “Fair and Open

Basis” (N.J.S.A. 19:44A-20.5).

Date: December 11, 2023 Michael Voll City

Manager http://www.bidnetdirect.com/capemaycity

Administrative Documents

Applicable to Bid if marked “X”

DOCUMENTATION REQUIRED OR REVIEWED

Read, Signed

& Submitted

Bidder’s

Initial

Bid Guarantee (Bid Bond or Certified/Cashier’s Check) (with POA for full amount of Bid Bond)

Consent of Surety (Certificate from Surety company)

Performance Bond and Labor and Material Payment Bond (Required from the Awarded Contractor)

Maintenance Bond in the Amount of 100 % for a period indicated in

“General Conditions” Required from the Awarded Contractor Upon

Acceptance of Project

Acknowledgement of Receipt of Addenda (To be Completed if

Addenda are Issued) x Statement of Ownership Disclosure Form

Declaration of Sub Contractors (Due with bid if indicated)

Public Works Contractor Registration Certificate(s) for the Bidder and all

Sub Contractors (Prior to Award, but effective at time of bid) x Required Evidence EEO/Affirmative Action Regulations x Business Registration Certificate – Bidder and all Sub Contractors (Prior to Contract Award)

Non-Collusion Affidavit

Experience and Qualifications x Insurance and Indemnification Certificate x Disclosure of Investment Activities in Iran Form

Federal debarment Form

Prevailing Wage Certification (PL 2026, C301) x Equipment Certification x Americans With Disability Act of 1990 Language

This checklist is provided for bidder’s use in assuring compliance with required documentation; however, it does not include all specifications requirements and does not relieve the bidder of the need to read and comply with the specifications.

Administrative Documents

Bidder

Name:

Date:

Authorized

Representative:

Signature:

Print Name & Title:

CITY OF CAPE MAY

AT 100 BROADWAY

“BROADWAY PAVILLION”

BID FORM

Name of Bidder:

Federal I.D. #

Address:

Telephone No.: ( ) Fax No.: ( )

Contact Person:

E-Mail Address:

Website Address:

[Note: Bidders may attach additional sheets or documentation to this Bid Form in order to provide supplemental information or materials for consideration by the City, where necessary.]

I. Bid Amount. Enter annual bid amount for each listed space, for the first year of the lease term.

SPACE: Minimum Bid

(Per Year) Bid Amount (1st Year)*

100 BROADWAY / BROADWAY PAVILLION

30,000

*The bidder’s bid amount for the first year shall be subject to an annual increase during the

3-year term of the Lease Agreement in the amount of 3% per year. Payments will be one-fourth of total due on June 1, July 1, August 1 and September 1, of each lease year.

II. Goods/Services. The undersigned proposes to furnish and deliver the following goods/services pursuant to the bid specifications:

Signature of Bidder’s Authorized Representative Print Name of Authorized Representative

Title

Date

III. Prior experience and qualifications of the bidder in providing the same or similar goods/services, either in Cape May or elsewhere:

IV. Additional Information:

Please provide the following additional information:

1. Ownership (list parent company and/or bidder subsidiaries and affiliates; if sole prop.

or partnership, list name and home address of sole prop. or general partners):

Federal Tax Number: NJ Tax Number:

2. Total Company employees at current:

3. Total number of employees to be utilized in connection with the provision of the within goods/services:

4. How long has the bidder been in business?

5. For additional information or questions, the City should contact:

Name:

Title:

Telephone (Day):

Email:

The bidder hereby certifies to the truth of all information contained in the within bid (as may be supplemented with attachments). The bidder is aware that the bidder is subject to disqualification for any misrepresentations made in this bid.

AT 100 BROADWAY “THE BROADWAY PAVILLION”

1.0 SCOPE

1.1 The Mayor and Council of the City of Cape May desire to solicit competitive bids through a publicly advertised bidding process for the renting of space located within certain City-owned real property known as the “BROADWAY PAVILLION”. Broadway Pavilion at the Beach, a/k/a 100 Beach Avenue, designated as an eating establishment and refreshment stand of approximately 630 square feet, but excluding the restrooms, storage area, and beach tag sales area, which shall also include the equipment set forth in the Equipment Schedule attached hereto.

Days and Hours of Operation

Tenant shall maintain the following hours of operation, as may be modified at the request of

Tenant subject to prior written approval of Landlord, in its sole and absolute discretion:

No less than May 16 through October 4:

10AM to 8PM – Every day except religious holidays, whether or not a nationally recognized holiday.

1.2 Award shall be made to the highest bidder by sealed bids, in accordance with N.J.S.A.

40A:12-14(a).

1.3 The within solicitation for competitive bids has previously been authorized by Resolution of the Cape May Mayor and Council.

2.0 LENGTH AND PURPOSE

2.1 In particular, the City intends to award a lease to one bidder for the use of certain City owned spaces for a three (3) year period with two one (1) year renewal terms subject to further authorization by City Council..

2.2 The rent for the second and third years of the proposed lease term, per space, shall escalate by a minimum of three (3%) percent per year thereafter.

AT “BROADWAY PAVILLION

Minimum Percent increase Minimum Bid

Year 1 0% $30,000.00

Year 2 3%

Year 3 3%

Year 4 (subject to approval by

City Council)

3%

Year 5 (subject to approval by

City Council)

3%

3.0 REQUIREMENTS

3.1 Bid for lease of property in accord with N.J.S.A. 40A:12-4(a) will be received and read on zoom by the City on January 10, 2024, at 11:00A.M. and conducted in electronic platform in accord with N.J.A.C. 5:34-1 et. Seq., on BIDNET Direct at www.bidnetdirect.com//capemaycity

3.2 For invitation and attendance at public bid opening on zoom, contact the Qualified

Purchasing Agent, Sean Canning at scanning@TheCanningGroup.org.

3.3 The annual rental price(s) offered by all bidders must be equal to or in excess of the minimum amount(s) referenced above, per year.

3.3.1 As per N.J.S.A 40A:12-14(a) the City of Cape May reserves the right to reject all bids not meeting the minimum rental as established.

3.4 The length of each lease shall be for a fixed term of a five (5) year period. All leases shall commence on or about January 1, and ending December 31 unless, following the award of the bid, the parties shall agree otherwise. The dates may change dependent on the calendar and season. All date changes shall be memorialized by Resolution of the governing body as an amendment to the lease agreement.

3.5 Bidders may only submit one sealed bid.

3.6 All bidders must be involved in a business which provides for the sale of goods and services to members of the public. The proposed business associated with each bid must be described as specifically as possible on the “Bid Form” to be included with each http://www.bidnetdirect.com/capemaycity bidder’s response package.

3.7 All spaces are offered in their “as is” condition. Successful lessee(s) shall assume all responsibility for expenses associated with any improvements which are necessary to adapt the space(s) to their intended use(s) and proposed operation(s) and shall be responsible for any and all necessary repairs and maintenance during the lease term.

3.8 All design specifications for improvements must be approved by the City prior to the commencement of any construction or prior to making application for necessary permits.

3.9 All work performed must be completed in a timely and professional manner in compliance with State and local building codes. Only licensed plumbing and electrical contractors shall be permitted to perform work on systems being adapted for the operation(s) of the lessee(s). Alterations to the individual spaces shall be compatible with the design of the building’s interior, construction and color. Exterior alterations are not permitted. All lessees shall obtain prior approval(s) from the City before any improvement work is performed to their individual spaces.

3.10 Any prospective bidders desiring to inspect the spaces should contact the City

Manager Mike Voll, at the telephone number and/or e-mail address set forth in Paragraph

16 below, in order to make appropriate arrangements. An on-site inspection is recommended prior to bid submission.

4.0 BID GUARANTEE

4.1 Bid proposals must be accompanied by a certified check, cashier’s check, or bid bond in the amount of ten per centum (10%) of the total amount of the bid, but not in excess of twenty thousand ($20,000) dollars and made payable to the City of Cape May.

4.2 Bidder shall submit a copy of the bid guarantee with electronic submittal and mail PRIOR to bid opening the original to the Municipal Clerks office 643 Washington Street, Cape May, NJ 08204.

4.3 The bid guarantee may also be provided in certified check and cashier’s check in accord with provisions within general requirements of this bid.

4.4 The bid security of all unsuccessful bidder(s) shall be returned immediately after the award of a lease(s). Once a contract is awarded, the successful bidder(s) shall deposit one month’s rent as a security deposit for the lease(s).

5.0 REJECTION OF BIDS

5.1 The City reserves the right to reject any or all bids, at the City’s sole discretion, following the receipt and opening of the bids in accord with N.J.S.A 40A:12-14.

5.2 If for any reason the City rejects any or all bids, or if the City is restricted from entering into a Lease Agreement for any reason, the City’s liability shall be limited to the return of the guarantee submitted by the bidder(s). The City shall not be responsible for any additional expenses incurred by potential lessee(s), directly or indirectly, as a result of submitting a bid(s) and/or engaging in negotiations with the City.

6.0 OBLIGATIONS OF SUCCESSFUL BIDDER

6.1 All successful bidders shall be required to execute a Lease Agreement with the City within ten (10) days of the notice to award the bid(s).

6.2 A sample copy of such Lease Agreement is contained within the Specifications package.

6.3 Any bid deposit paid to the City may be retained as liquidated damages in the event that a potential lessee fails to execute said Lease Agreement.

6.4 The Lease Agreement contains terms and conditions which will govern the landlord-tenant relationship between the City and the successful bidder(s).

6.5 Insurance

6.5.1 All successful bidders must provide insurance coverage(s) in amount(s) as specified in the Specifications and shall abide by all other insurance requirements as specified in the Specifications.

6.5.2 The successful bidder(s) shall also be required to indemnify and hold the City, its officials, employees and agents harmless from and against any and all injuries sustained by any members of the public relating to the operation of the lease.

6.5.3 The particulars regarding insurance coverage amount(s), hold harmless/indemnification provisions, and all other requirements, are as set forth in the Specifications and the same shall be incorporated into the written

Lease Agreement between the parties.

6.5.4 Bidder shall indemnify and hold harmless the City from any and all claims, suits or actions, and damages or costs for every name and description to which the City may be subjected or put by reason of injury to the person or property of another, or the property of the City, resulting from negligent acts or omissions on the part of the bidder, the bidder’s agents, servants or subcontractors in the delivery of goods and services, or in the performance of the work associated with this bid process or under the proposed Lease

Agreement to be entered into by the City and the bidder.

7.0 QUESTIONS

7.1 Any questions regarding the requirements associated with submission of a proposal may be directed during regular business hours to the City Clerk, Erin Berk, at City Hall, prior to the bid opening. The City Clerk may be reached at Phone: (609) 884-9536, Email:

eburke@capemaycity.com

8.0 TRUTH IN CONTRACTING LAWS

8.1 Bidder should be aware of the following statutes that represent “Truth in Contracting” laws:

• N.J.S.A. 2C:21-34, et seq. governs false claims and representations by bidders. It is a serious crime for the bidder to knowingly submit a false claim and/or knowingly make material misrepresentation.

• N.J.S.A. 2C:27-10 provides that a person commits a crime if said person offers a benefit to a public servant for an official act performed or to be performed by a public servant, which is a violation of official duty.

• N.J.S.A. 2C:27-11 provides that a bidder commits a crime if said person, directly or indirectly, confers or agrees to confer any benefit not allowed by law to a public servant.

• Bidder should consult the statutes or legal counsel for further information.

9.0 CRITERIA FOR SELECTION.

9.1 The City intends to evaluate the bids received based upon the criteria set forth below:

9.1.1 Payments proposed to be made to the City of Ten percent (10%) on or before

January 1;

9.1.2 (2) Thirty percent (30%) on or before July 1

9.1.3 (3) Thirty percent (30%) on or before August 1

9.1.4 (4) Thirty percent (30%) on or before September 1

9.1.5 Of each respective lease year; and

9.1.6 Compliance with all requirements of the City’s Bid Specifications; including

State and County laws, rules, regulations, Executive Orders, or other directives.

10.0 OTHER CONDITIONS APPLICABLE TO THESE BID SPECIFICATIONS.

10.1 All costs incurred by bidder(s) to these Bid Specifications shall be borne solely by the bidder(s). Only those bidders that supply complete information and comply with all requirements set forth in these Bid Specifications will be considered. No incomplete bids will be considered.

10.2 By submitting a bid, a bidder agrees that it will not make any claims for or have any right to damages because of any misinterpretation or lack of information relating to these

Bid Specifications.

10.3 All materials, bids and contents submitted during the review process will become the property of the City and will become public information after the lease(s) has/have been awarded. The City reserves the right to supplement, amend or otherwise modify these

Specifications through issuance of addenda to all prospective respondents who have received a copy of these Bid Specifications, and who have provided their contact information to the City.

10.4 All successful bidders shall be required to submit a copy of their N.J. Business

Registration Certificate (see Sample 1 attached) and Certificate of Employee Information

Report (see Sample 2 attached) prior to execution of Lease Agreements.

11.0 INTERPRETATION AN ADDENDA.

11.1 The bidder understands and agrees that its bid is submitted on the basis of the Bid

Specifications prepared by the City. The bidder accepts the obligation to become familiar with these Bid Specifications.

11.2 Bidders are expected to examine the Bid Specifications and related documents with care and observe all their requirements. Ambiguities, errors or omissions noted by bidders should be promptly reported in writing to the appropriate official. Any prospective bidder who wishes to challenge a Bid Specification shall file such challenges in writing with the contracting agent no less than three (3) business days prior to the opening of the bids. Challenges filed after that time shall be considered as void and having no impact on the City of Cape May or the award of a Lease Agreement pursuant to N.J.S.A. 40A:12-14(a). In the event the bidder fails to notify the City of such ambiguities, errors or omissions, the bidder shall be bound by the requirements of the

Bid Specifications and the bidder’s submitted bid.

11.3 No oral interpretation and/or clarification of the meaning of the specifications for any goods and services will be made to any bidder. Such request shall be in writing, addressed to the City’s representative stipulated in the Bid Specifications. In order to be given consideration, a written request must be received at least seven (7) business days prior to the date fixed for the opening of the bid.

11.4 All interpretations, clarifications and any supplemental instructions will be in the form of written addenda to the Bid Specifications and will be distributed to all prospective bidders. All addenda so issued shall become part of the Bid Specifications and shall be acknowledged by the bidder in its bid. The City’s interpretations or corrections thereof shall be final.

11.5 When issuing addenda, the City shall provide required notice prior to the official receipt of bids to any person who has submitted a bid or who has received a bid package pursuant to applicable law.

12.0 PRE-BID CONFERENCE

12.1 Pre-Bid Conference: None

13.0 TERMINATION OF CONTRACT.

13.1 If, through any cause, the contractor shall fail to fulfill in a timely and proper manner obligations under the contract, or if the contract shall violate any of the requirements of the contract, the City shall thereupon have the right to terminate the contract by giving written notice to the bidder of such termination and specifying the effective date of termination.

13.2 Such termination shall relieve the City of any obligations set forth in the contract.

13.3 Notwithstanding the above, the bidder shall not be relieved of liability to the City for damages sustained by the City by virtue of any breach of the contract by the bidder.

13.4 The bidder agrees to indemnify and hold the City harmless from any liability to subcontractors/suppliers concerning payment for work performed or goods supplied arising out of the lawful termination of the contract by the City under this provision.

13.5 Acquisition, merger, sale and/or transfer of business, etc.:

13.6 It is understood by all parties that, if during the life of the contract, the bidder disposes of his/her business concern by acquisition, merger, sale and/or transfer or by any means conveys his/her interest(s) to another party, all obligations are transferred to that new party, subject to the written approval of the City. In this event, the new contractor(s) will be required to submit all documentation/legal instruments that were required in the original bid/contract. Any and all change(s) to the original contract and/or guarantees posted must be approved in writing by the City.

13.7 The contractor will not assign any interest in the contract and shall not transfer any interest in the same without the prior written consent of the City.

13.8 The City may terminate the contract for convenience by providing sixty (60) calendar days advanced notice to the contractor.

EXHIBIT "A"

LEASE

LEASE AGREEMENT

THIS AGREEMENT OF LEASE, made and entered into this ______day of ________ , 2023, by and between the City of Cape May, a municipal corporation of the State of New Jersey, with offices located at 643 Washington Street, Cape May, New Jersey 08204 ("Landlord") and

_________________________, a New Jersey ___________________, with offices located at ______________________________ ("Tenant").

WITNESSETH:

WHEREAS, Landlord is the owner of certain real property in the City of Cape May known as the Broadway Pavilion, located at the intersection of Broadway Avenue at the Beach, a/k/a 100 Beach

Avenue, designated as a refreshment stand and eating establishment of approximately 630 square feet, but excluding the restrooms, storage area, and beach tag sales area, which shall also include the equipment set forth in the Equipment

Schedule attached hereto and incorporated herein as if set forth at length (the "Property"); and

WHEREAS, Tenant has submitted the highest responsible bid for the lease of the Property at a public bid conducted by Landlord on January 10,2024 at 11:00A.M., in accordance with N.J.S.A. 40A:12-1 et seq., and other applicable statutes, and

WHEREAS, Tenant desires to lease the Property and Landlord desires to let same to

Tenant, upon the terms and conditions hereinafter set forth:

NOW, THEREFORE, in consideration of the mutual covenants and agreements herein, and for other good and valuable consideration, the receipt and sufficiency of which is acknowledged, the parties hereto, intending to be legally bound hereby, covenant and agree as follows:

1. LEASE OF PROPERTY

Landlord, for and in consideration of the rents, covenants and agreements hereinafter reserved and contained on the part of Tenant to be paid, kept, observed and performed, has leased, rented, let and demised the Property, and by these presents does lease, rent, let and demise unto Tenant the Property, and Tenant does hereby take and hire the Property, upon and subject to the conditions and limitations hereinafter expressed.

2. TERM

The initial term (the "Term") of this Lease shall commence upon (i) the adoption of this

Lease by a Resolution of Landlord; (ii) the payment to Landlord by Tenant of ten percent (10%) of the Year One Rent, as hereafter defined, and (iii) Tenant's tender of the Security Deposit as herein provided (which payment of 10% of the Year One Rent and Security Deposit are acknowledged by Landlord to have been received along with Tenant's bid for lease of the

Property) ("Lease Commencement Date"), and shall continue until 12 o'clock midnight on

December 31, 2026, unless sooner terminated as hereinafter provided.

City Council, in their sole discretion, may extend this lease for two additional one (1) year terms if authorized by further

Resolution. For City Council to consider any extension, Tenant shall provide a written request for consideration of extension to the City Clerk no less than sixty (60) days prior to the expiration of the initial term. Upon receipt of the request, City Council will review and provide a response as soon as practicable thereafter. City Council may in their sole discretion either (a) authorize by extension of the lease pursuant to the terms herein by Resolution for term ending no later than December 31 of the following year or (b) determine that the property should be returned to City possession for such purposes as they may deem necessary or proper, in which case the term shall expire.

3. RENTAL

(a) In consideration of this Lease, Tenant covenants and agrees to pay to

Landlord, without demand, rent for each calendar year of the Term of this Lease in the sum of

$___________ (the "Annual Rent."). The Annual Rent shall be increased each subsequent lease year based upon the twelve (12) month increase in the CPI Index measured as of the next to the last month of each preceding lease year;

provided, however, that the annual increase shall not be less than three (3%) percent (the "Annual Increase"). For these purposes, the CPI Index shall mean the Consumer Price Index for All Urban Consumer For Philadelphia-Wilmington-

Atlantic City (1982-84=100), as published by the U.S. Department of Labor, or, if such index is discontinued, the most comparable index published by any other Governmental Agency. The Annual Increases shall be based on the Annual

Rent for the immediately preceding Lease year.

The Annual Rent shall be payable in the following manner:

(i) Rent from the Lease Commencement Date through December 31, 2024 shall be $_____________ ("Year

One Rent"), payable as follows:

(1) Ten percent (10%) with Tenant's bid for lease of Property in accordance with Paragraph 2 above;

(2) Thirty percent (30%) on or before July 1, 2024;

(3) Thirty percent (30%) on or before August 1, 2024;

(4) Thirty percent (30%) on or before September 1, 2024.

(ii) Rent from January 1, 2025 through December 31, 2025 shall be $__________("Year Two Rent"), payable as follows:

(1) Ten percent (10%) on or before January 1, 2025;

(2) Thirty percent (30%) on or before July 1, 2025;

(3) Thirty percent (30%) on or before August 1, 2025;

(4) Thirty percent (30%) on or before September 1, 2025.

(iii) Rent from January 1, 2026 through December 31, 2026 shall be $__________ ("Year Three Rent"), payable as follows:

(1) Ten percent (10%) on or before January 1, 2026;

(2) Thirty percent (30%) on or before July 1, 2026;

(3) Thirty percent (30%) on or before August 1, 2026;

(4) Thirty percent (30%) on or before September 1, 2026.

(iv) If the first additional one year term is authorized by Resolution of City Council, Rent from January 1, 2027 through December 31, 2027 shall be $___________ (''Year Four Rent''), payable as follows:

(1) Ten percent (10%) on or before January 1, 2027;

(2) Thirty percent (30%) on or before July 1, 2027;

(3) Thirty percent (30%) on or before August 1, 2027;

(4) Thirty percent (30%) on or before September 1, 2027.

(v) If the second additional one year term is authorized by Resolution of City Council, Rent from January 1, 2028 through December 31, 2028 shall be $________

("Year Five Rent"), payable as follows:

(1) Ten percent (10%) on or before January 1, 2028;

(2) Thirty percent (30%) on or before July 1, 2028;

(3) Thirty percent (30%) on or before August 1, 2028;

(4) Thirty percent (30%) on or before September 1, 2028.

All rent shall be payable without prior notice or demand, at Landlord's address as set forth above or at such other place, or to such other person, as Landlord may from time to time direct. The total rent for any calendar year of the Term may be referred to as "Annual Rent."

(b) Annual Rent shall be allocated as follows:

(i) 10% of the Annual Rent shall represent payment for Tenant's use and occupancy of the Property from January 1 through the Friday immediately prior to Memorial

Day weekend;

(ii) 80% of the Annual Rent shall represent payment for Tenant's use and occupancy of the Property from the Saturday of Memorial Day weekend through Labor Day;

(iii) 10% of the Annual Rent shall represent payment for Tenant's use and occupancy of the Property from the day after Labor Day through December 31.

(c) If any payment required by Tenant under any of the terms hereof shall not be paid within five (5) days from the date it is due, Tenant shall, without demand, pay a late charge to Landlord equal to five (5%) percent of the rent so due and such late charge shall be deemed additional rent for purposes of this Lease.

d) No payment by Tenant or receipt by Landlord of a lesser amount than any payment of rent or additional rent or assessment herein stipulated shall be deemed to be other than on account of the earliest stipulated rent or additional rent then due and payable, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such rent or pursue any other remedy provided in this Lease, at law or in equity.

( e) All payments of sums deemed to be additional rent or assessment under this Lease shall be payable at the time said additional rent accrues.

(f) Notwithstanding anything herein to the contrary, there shall be no abatement, apportionment or suspension of the rent payable hereunder, except as is set forth in

Paragraph 15 below.

4. SECURITY DEPOSIT

(a) Upon the execution of this Lease, Landlord shall deposit on Tenant's account, the sum of $_____________, said payment equaling ten (10%)percent of the Year One Rent and having been submitted by Tenant along with its bid for lease of the Property, and which sum shall be held by Landlord as security for the faithful performance of all the terms and conditions of this Lease ("Security Deposit"). Should Tenant fail to comply with the terms and conditions of this Lease, Landlord shall have the right, at any time and from time to time, to apply the Security Deposit or any part thereof, to cure any such default or for the purpose of reimbursing Landlord for any damage or costs, including reasonable attorney fees and costs, occasioned by such default. The right of Landlord to apply the Security Deposit shall not affect any other remedies available to Landlord under this Lease or under applicable law. If the Security

Deposit or any part thereof, is so applied by Landlord, Tenant shall, within three (3) days after demand, deposit additional funds with Landlord to restore the Security Deposit to its original or increased amount, as the case may be, and failure to do so shall constitute an event of default under this Lease.

(b) If the Tenant shall have faithfully complied with all the terms and conditions of this Lease, the Security

Deposit (without interest) shall be refunded to Tenant after the expiration or earlier termination of this Lease; provided, however, that Tenant first shall have vacated the Property and shall have surrendered possession thereof to the Landlord by delivery of keys, in accordance with the Lease provisions, and shall have returned the Property to Landlord in good order and repair, and otherwise as provided in this Lease.

(c) Nothing herein contained shall require Landlord to hold the sums so deposited in escrow or as a trust fund, nor establish any relationship other than that of debtor and creditor with respect to said funds so deposited.

5. USE OF PROPERTY

(a) Tenant represents that it intends to use the Property as an eating establishment and refreshment stand only. Tenant shall maintain the following hours of operation, as may be modified at the request of Tenant subject to prior written approval of Landlord, in its sole and absolute discretion: No less than May 16 through October 4; 10AM to 8PM – Every day except religious holidays, whether or not a nationally recognized holiday.

(b) Commencing on the Lease Commencement Date and thereafter for the balance of the Term, Tenant shall continuously occupy and use the Property and will not use, permit or suffer the use of the Property except as specifically permitted herein.

(c) Tenant covenants and agrees that Tenant, at its own cost and expense:

(1) Will keep all exterior and interior surfaces of the Property clean and will maintain the Property, all corridors immediately adjoining the Property, all storage area sand all loading areas, in a clean, orderly and sanitary condition, free of trash, garbage, insects, rodents, vermin and other pests, or any other debris arising from or occasioned by Tenant's use and occupancy of the Property;

(2) Will not permit accumulations of any refuse, and will remove all trash and other dry refuse or cause all such trash and other dry refuse to be removed from the Property. All garbage, food or other wet refuse shall be kept in odor-proof, rat-proof containers, shielded from the view of the general public until removed, and Tenant will not burn any refuse what so ever;

(3) Will not use or permit the use of any apparatus, or sound reproduction or transmission, or any musical instrument, in such manner that the sound so reproduced, transmitted or produced shall be audible beyond the confines of the Property, and will not use any advertising medium which may be heard or experienced outside of the Property, including without limitation flashing lights, or search lights;

(4) Will keep all mechanical apparatus free of vibration and noise which may be transmitted beyond the confines of the Property;

(5) Will not cause or permit objectionable odors to emanate or be dispelled from the Property.

(d) Landlord reserves the right from time to time to adopt and promulgate reasonable rules and regulations applicable to the Property, including, without limitation, Tenant's hours and manner of operation, and to amend and supplement such rules and regulations. Notice of such rules and regulations and any amendment and supplement thereto shall be given to Tenant and Tenant agrees thereupon to comply with and observe all such rules and regulations.

Landlord's rights and remedies in the event Tenant shall fail to comply with and to observe such rules and regulations shall be the same as though such rules and regulations were set forth in this Lease, and a violation by Tenant shall constitute an event of default. Subject to Tenant’s compliance with the other terms and provisions of this Lease, such rules and regulations shall not unreasonably restrict Tenant's daily hours of operation.

6. NEGATIVE COVENANTS OF TENANT

Tenant's business will be conducted in a first-class manner, and shall not, without limitation:

(a) Damage the Property, or any part of the Property;

(b) Bring into or permit to be kept in the Property any dangerous, explosive or obnoxious substances;

(c) Conduct itself or permit it or its agents, servants, employees or invitees to conduct themselves in a manner that in Landlord's reasonable judgment is improper or unsafe;

(d) Remove, attempt to remove or manifest any intention to remove Tenant's goods or property from the Property other than in the ordinary course of business, and except for necessary repairs or replacement thereof;

(e) Vacate or abandon the Property, or permit the Property to be empty or un-occupied during normal business hours between the beginning of Memorial Day weekend through Labor Day, weather permitting;

(f) Do or suffer to be done, any act, matter or thing objectionable to the fire insurance companies or Board of Underwriters whereby the fire insurance or any other insurance now in force or hereafter to be placed on the Property shall become void or suspended, or whereby the same shall be rated as a more hazardous risk than at the Lease Commencement

Date. Tenant shall pay to Landlord as additional rent any and all increases in premium or insurance carried by Landlord on the Property caused in any way by the occupancy of Tenant, upon delivery to Tenant of notice of such increase and a statement by such insurance carrier or agent that such increase is in part or whole attributable to Tenant's use or occupancy;

(g) Obstruct the streets, sidewalks, entrances, halls, passages, elevators, stairways or other common areas of the Property, or make use thereof for any other purpose than for ingress and egress;

(h) Use the toilet rooms, water-closets and other water apparatus for any purposes other than those for which they were constructed;

(i) Keep animals or birds on the Property;

(j) Allow any sign, advertisement or notice to be fixed to the outside of the Property or be otherwise placed on the Property so as to be visible from its exterior, except as shall be specifically approved in writing by Landlord;

(k) Make or suffer any improper noises or disturbances of any kind so as to disturb others;

(1) Mark or defile any part of the Property;

(m) Place anything on the outside of the Property, including roof setbacks, window ledges and other projections, or drop anything from the windows, stairways or parapets, or place trash or other matter on the Property, except in enclosed containers;

(n) Cover or obstruct any window, skylight, door or transom that admits light;

(o) Interfere with the heating or cooling apparatus;

(p) Leave the Property without locking doors;

(q) Use business machines and mechanical equipment which cause vibration or noise which may be transmitted to any space outside the Property. Vibrating machines and equipment shall be placed and maintained by Tenant, at its sole cost and expense, in settings of cork, rubber; or spring type vibration eliminators sufficient to absorb and prevent such vibration or noise;

(r) Deface or injure the Property or any part thereof, or permit anything to be done which would tend to create a nuisance or unlawfully disturb the visitors, tenants and occupants of adjoining property and the general public, or create any safety hazard which would be dangerous to the Property or any visitors, tenants or occupants thereof, or which would cause or tend to cause any increase in premium for any insurance which Landlord may have in effect with respect to the Property;

(s) Violate any rules or regulations of Landlord now or hereafter in effect; or

(t) Violate any applicable laws, rules, regulations, or ordinances now or hereafter in effect.

7. MAINTENANCE AND REPAIRS

(a) Tenant acknowledges that it has examined the Property and agrees to accept the Property in its current "as is" condition, and enters into this Lease without any representation on the part of the Landlord as to the Property’s condition. Tenant shall be solely responsible for the maintenance of the Property and shall keep it in a state of good condition and repair, and at the expiration of the Term hereof, or termination of this Lease, shall deliver up the Property in good order and condition, wear and tear from reasonable use thereof excepted, and in broom clean condition. Tenant shall maintain the Property in a clean and sanitary condition; free from trash, flammable or hazardous material and other objectionable matter, and shall not encumber or obstruct the sidewalks, parking areas, yards, entrances, hallways or stairs or other common areas of which the Property is a part, or of any other portion thereof. Tenant shall make, at its sole cost and expense, all repairs necessary to maintain the Property and shall keep the Property and the fixtures therein in neat and orderly condition. If the Tenant refuses or neglects to make such repairs, or fails to diligently prosecute the same to completion, after written notice from Landlord of the need therefor, Landlord may, without any obligation to do so, make such repairs at the expense of Tenant and such expense shall be collectible as additional rent.

Any such repairs and any labor performed or materials furnished in, on or about the Property shall be performed and furnished by Tenant in strict compliance with all applicable laws, regulations, ordinances and requirements of all duly constituted authorities or governmental bodies having jurisdiction over the Property, there acquirements of any board of underwriters having jurisdiction thereof, as well as any reasonable regulations imposed by Landlord pertaining thereto.

(b) Landlord shall not be liable by reason of any injury to, or interference with, Tenant's business arising from the making of any necessary repairs, alterations, additions or improvements in or to the Property or to any appurtenances or equipment therein.

(c) Tenant shall maintain and clean the range hood to a standard acceptable in the industry, which shall be free of a grease and debris on a yearly basis and submit proof thereof to the Clerk of the City of Cape May.

(d) Tenant shall be responsible for all ordinary maintenance and repair for the interior portions of the lease premises, including ordinary maintenance of those items on the equipment list. Landlord will be responsible for maintaining the exterior portions of the premises including the roof, siding, decking and structural members of the property. Notwithstanding the above, if Tenant by their act or neglect cause damage to the property, the Tenant shall be liable for such damages notwithstanding any of Landlord’s responsibilities set forth herein.

8. ALTERATIONS AND IMPROVEMENTS

No alterations, additions or improvements shall be made to the Property, and no climate regulating, air conditioning, cooling, heating or sprinkling systems, television or radio antennas, heavy equipment, apparatus or fixtures shall be installed in or attached to the Property without the prior written consent of Landlord, which may be withheld in Landlord's sole discretion. Any such alterations, improvements or additions made by Tenant shall remain upon the Property at the expiration or sooner termination of this Lease and shall become the property of Landlord, unless Landlord shall, prior to such termination, have given written notice to Tenant to remove the same, in which case, Tenant shall do so and restore the Property to the same good order and condition in which they were at the Lease Commencement Date.

9. UTILITIES

Tenant shall be solely responsible for the obtaining of all utilities for use of the Property, including charges for hook-up, installation, and usage. Landlord shall not be liable in damages or otherwise for temporary delay or failure in furnishing any utility services or facilities, whether provided through Landlord or Tenant. In no event shall such delay or failure, regardless of cause, constitute an eviction, disturbance of Tenant's use and possession of the Property, render

Landlord liable to Tenant, authorize abatement of rent, relieve Tenant from performance of its obligations under this Lease, or result in a termination of this Lease. If the Tenant refuses or neglects to make payment for any utilities furnished to the Property, Landlord may, without any obligation to do so, make such payments at the expense of Tenant and such expense shall be collectible as additional rent.

10. COMPLIANCE WITH LAWS

Tenant shall promptly comply, at its expense, with all laws, ordinances, rules, regulations, requirements and directives of federal, state and municipal governments or public authorities and all departments thereof applicable to and affecting the Property, and shall promptly comply with all orders, regulations, requirements and directives of the Board of Fire

Underwriters or similar authority and of any insurance carriers which have issued or are about to issue policies of insurance covering the Property and their contents, for the prevention of fire or other casualty, damage or injury, at Tenant's sole cost and expense.

11. INSURANCE

(a) Tenant shall obtain and keep in full force and effect at all times during the term of this Lease, at its own cost and expense, for the mutual benefit of Landlord and Tenant:

(i) Comprehensive general liability insurance, with limit coverage to afford protection in an amount not less than $1,000,000 per occurrence/$3,000,000 aggregate for injury or death to anyone or more persons, or such greater amount in each case as Landlord shall reasonably request from time to time, protecting Landlord as an additional insured against any and all claims for personal injury, death or property damage occurring in, upon, adjacent to or in any way connected with the Property or any part thereof; and

(ii) Worker's compensation insurance as required by law. No such policy or policies shall have a deductible greater than Two Thousand Five Hundred ($2,500.00) Dollars.

(b) Landlord shall maintain, at the expense of the Tenant, all risk insurance on the Property against damages or loss by fire or other casualty. The Tenant shall promptly pay when due all premiums for such insurance. Landlord shall determine the terms and extent of such insurance coverage at its sole and absolute discretion. Insurance premiums shall be due within thirty (30) days of Landlord's written demand for same and shall be collectible as additional rent. Insurance premiums which are not paid by Tenant in a timely fashion shall be subject to all penalties and interest as are applicable to unpaid rent.

(c) All such insurance shall be written by a good and solvent insurance company or companies of recognized standing, admitted to do business in the State of New Jersey and acceptable to Landlord. All policies procured by

Tenant shall be issued in the names and for the benefit of Landlord and Tenant, as their respective interests may appear.

Tenant shall procure, maintain, and place such insurance and pay all premiums and charges therefor and upon failure to do so as herein provided, Landlord may, but shall not be obligated to, procure, maintain and place such insurance and pay all premiums and charges thereof, and in such event Tenant agrees to pay the amount therefor to Landlord on demand and such sum shall be in each instance collectible as additional rent within five (5) days of Landlord's demand therefor. Tenant shall provide to Landlord, upon request, copies of certificates of insurance evidencing the coverage required hereunder. Tenant shall cause to be included in all such insurance policies a provision to the effect that the same will be non-cancelable except upon not less than thirty (30) days' prior written notice to Landlord, and that there will be no right of subrogation against Landlord. The originals of all such insurance policies shall have been delivered to Landlord not later than five

(5) Days prior to the Lease Commencement Date.

(d) Tenant covenants and agrees that it shall, without notice or demand, and at its own cost and expense, indemnify and save harmless Landlord against and from, and Landlord shall not be liable to Tenant for, any and all claims by or on behalf of any person arising in any manner whatsoever from, out of or in connection with:

(1) The use and occupancy of the Property by Tenant, its agents, employees and invitees;

(2) Any failure by Tenant to perform any of the terms or conditions of this Lease required to be performed by Tenant;

(3) Any failure by Tenant to comply with any statutes, regulations, ordinances or orders of any governmental authority;

(4) Any accident, death, injury, or damage, loss or theft of property in or about the Property (whether involving property belonging to Tenant or any other person) resulting from any cause whatsoever, unless such accident, death, injury, damage, loss or theft is caused by the sole negligence of the Landlord;

(5) Any and all costs, attorney fees, expenses and liabilities incurred in or as a result of any such claim or action or proceeding brought against Landlord by reason of any such claim. Tenant, upon notice from Landlord, covenants to indemnify or defend such action or proceeding by legal counsel reasonably satisfactory to Landlord.

12. ASSIGNMENT, MORTGAGING, SUBLETTING

Tenant shall not assign, create a security interest in, pledge or encumber this Lease, in whole or in part, or sublet the whole or any part of the Property, or permit the use of the whole or any part thereof by any licensee or concessionaire without the prior written consent of Landlord, which shall not be unreasonably withheld; provided, however, that as a condition of such assignment, Tenant shall guarantee the performance by such assignee in form and content satisfactory to Landlord; and provided, further, that such assignment shall not relieve the undersigned Tenant from full and complete performance of, and liability under, this Lease. For purposes of this Paragraph, if Tenant is a corporation, partnership, or limited liability company, a transfer on any one or more occasions aggregating fifty (50%) percent or more of any class of stock or other interest in Tenant shall constitute an assignment of this Lease.

13. FIRE AND OTHER CASUALTY

If at any time during the Term of this Lease the Property be so damaged by fire, the elements or other casualty such that the Landlord or any governmental agency in the execution of its lawful authority shall deem the Property uninhabitable, the rent shall be paid up to the time of said destruction or damage. Landlord shall thereafter have the option to repair or rebuild, and if Landlord elects to repair or rebuild, it shall have the option to continue this Lease in full force and effect with all rental payments to be made by Tenant from the date the Property is restored by Landlord and ready for occupancy by Tenant, provided that the same can be accomplished within thirty (30) days of the date of the casualty. If the Property is not ready for occupancy within said thirty (30) day period, Tenant shall have the option to terminate this Lease, and neither party shall thereafter have any obligation to the other. If, in Landlord’s opinion, the Property shall be totally destroyed or so extensively damaged as to require practically the rebuilding thereof, then the rent shall be paid up to the time of such destruction and then this Lease shall terminate. In no event, however, shall the provisions of this paragraph be effective or applicable if the fire or other casualty or damage shall result from the carelessness, negligence or improper conduct of the Tenant or Tenant's agents, employees, invitees or licensees. In such case, Tenant's liability for the payment of rent and the performance of all covenants, conditions and terms hereof on the Tenant's part to be performed shall continue and Tenant shall be liable to Landlord for the damage and loss suffered by the Landlord.