GROUND LEASE AGREEMENT

between

COUNTY OF VOLUSIA

and dated as of

26-P-45PW DRAFT GROUND LEASE AND RELATED EXHIBITS EXHIBIT A

GROUND LEASE AGREEMENT

THIS GROUND LEASE AGREEMENT ("Agreement" or "Lease") is effective as of the ____ day of ____________ ("Effective Date"), by and between the COUNTY OF VOLUSIA, a political subdivision of the State of Florida ("County") and _________________ ("Lessee" and, together with County, the "Parties" and each a "Party").

WITNESSETH

WHEREAS, the County and Lessee desire to enter into this Lease, upon the terms and conditions herein contained, concerning that certain real property described in Exhibit A attached hereto to be used for purposes described in this Lease upon which the Lessee will construct certain improvements and to be used as generally set forth in the Conceptual Plan shown as a part of Lessee’s Request for Proposal RFP, attached hereto as Exhibit B which exhibit is incorporated herein.

NOW THEREFORE, in consideration of the mutual covenants and premises contained herein, the parties enter into this Agreement and agree as follows:

1. RECITALS

The above recitals are true and correct and by this reference are incorporated herein.

2. DESCRIPTION OF PREMISES

The County leases to Lessee and Lessee rents from County, the real property located at 4845 State Road 44, New Smyrna Beach, FL, as described in Exhibit A attached hereto and made part hereof which consists of approximately 77 acres. As used in the Agreement, the term "Premises" refers to the real property described above and to any improvements located on the real property from time to time during the term of this Agreement.

3. USE OF PREMISES

The Premises shall be used by the Lessee solely for the operations as set forth in Exhibit B, the RFP, which may be revised from time to time by the Parties written consent, and as such, Lessee shall be entitled to perform the aforementioned on the Premises.

Lessee shall not use or permit the Premises, or any part thereof, to be used for any purpose other than the purposes for which the Premises are leased as provided for herein. Any use of the Premises, or any part thereof, other than the purposes for which the Premises are leased as provided herein may be deemed as a default of this Agreement by Lessee.

4. LEASE TERM/OPTION TO RENEW

The term of this Agreement (the “Lease Term”) shall be for a period of thirty (30) years commencing on the Effective Date, unless sooner terminated pursuant to the provisions of this

Agreement. The Lease Term may be extended upon mutual agreement by the Parties to include approval by the County Council and in conformance with all state laws and local requirements.

5. HOLDOVER

If Lessee retains all or any portion of the Premises after the termination of the Lease Term by lapse of time or otherwise, such holding over shall constitute the creation of a tenancy at will with respect to such retained portion, terminable by the County at any time upon thirty

(30) days prior written notice to Lessee. Under such tenancy at will, Lessee agrees to pay to the County double the Monthly Rent payment that would have been due during the period of time Lessee remains in possession of the Premises if this Agreement had not terminated. All provisions of this Agreement shall remain in full force and effect during such holdover period.

Lessee further agrees that upon the expiration of the Lease Term, the Premises will be delivered to the County in good, tenantable, usable condition, reasonable wear and tear and matters covered by insurance excepted.

6. RENT

In consideration for the use of the Premises herein granted, Lessee shall pay to the County the following rental amounts (the “Monthly Rent” or “Rent”).

a. Beginning eight (8) months from the Effective Date the Monthly Rent to be paid by Lessee to County shall be __________________________________________. The eight

(8) months from the Effective Date (the Abatement Period) may be extended by the County Manager, or his/her designee, based upon a request and good faith showing by the Lessee that circumstances occurred beyond the Lessee’s control that warrant an extension of the Abatement Period. Examples of circumstances beyond Lessee’s control may include, but are not limited to, attaining a permit or permission that was not the responsibility of Lessee, etc. The County Manager’s, or designee’s, decision to extend or not extend the Abatement Period shall be final.

b. Each subsequent Monthly Rent payment shall be due on the first day of each month thereafter throughout the Lease Term. The Monthly Rent shall be paid by Lessee to County without notice or demand and without abatement, deduction, or setoff. A late charge equal to ten percent (10%) of the Monthly Rent shall be assessed for each rent payment paid fifteen (15) or more days after its due date.

c. In addition, if applicable, Lessee shall pay to County each month a sum equal to any sales tax, tax on rentals, and any other charges or taxes now in existence or hereafter imposed, based upon the privilege of renting the Premises, or upon the amount of rent collected, therefore.

d. The Monthly Rent shall be adjusted as set forth in Section 7 herein.

7. RENT ADJUSTMENT

Beginning five (5) years from the Effective Date, the Monthly Rent during Lease Term and any holdover Lease Term shall be adjusted annually on the anniversary month of the Effective Date using the Consumer Price Index for All Urban Consumers (CPI-U); U.S. City Average: All Items, not seasonally adjusted, annual average, 1982-1984+100 base reference, as published by the U.S. Department of Labor, Bureau of Labor Statistics, or any successor or replacement thereof, hereinafter referred to as the “CPI”. In sum, the Monthly Rent shall be adjusted annually based on CPI. The County shall send Lessee an annual letter notifying Lessee of the annual CPI Monthly Rent adjustment.

In no event shall the Monthly Rent ever be decreased.

8. RENT AS A SEPARATE COVENANT

Lessee shall not for any reason withhold or reduce Lessee’s required payments of Rent, it being expressly understood and agreed by the parties that the payment of Rent is a covenant by Lessee that is independent of other covenants of the parties hereunder.

9. PAYMENT

Lessee shall pay all Rent, fees, charges, and billings required to be paid to the County under this Agreement to the following address: County of Volusia, Att: Director, Parks and Recreation, 202 N. Florida Ave., DeLand, FL 32720, or such other place as the County shall specify in writing.

10. DELIVERY OF POSSESSION

If, for any reason whatsoever, the County cannot deliver possession of the Premises or a portion of the Premises to Lessee on the Effective Date, this Agreement shall not be void or voidable, County shall not be liable to Lessee for any loss or damage resulting from the inability to deliver possession, and Lessee shall not have the option to terminate this Agreement. In such an event, there shall be a proportionate reduction of rent covering the undelivered portion of the Premises for the period between the Effective Date and the time when the County can deliver full possession of the Premises.

11. “AS IS” CONDITION

Lessee’s taking possession of the Premises shall be conclusive evidence that the Premises and all structures and buildings as well as all component parts and fixtures, if any, were in satisfactory condition and accepted as of the date of possession. No promises from the County to alter the Premises and no representations respecting the condition of the Premises have been made by the County to Lessee other than as specifically set forth in this Agreement.

12. COMPLIANCE WITH ALL LAWS AND REGULATIONS

Lessee shall at all times comply all applicable federal, state and local laws, regulations, ordinances or rules affecting the Premises and the Minimum Performance Requirements contained in Exhibit C and made a material part of this Lease.

13. PERMITS AND LICENSES

Lessee shall be strictly liable, responsible and bear all costs of obtaining, maintaining current, and fully complying with, any and all permits, licenses, and other governmental authorizations in connection with the operation of its businesses on the Premises, however designated, as may be required at any time throughout the Lease Term by any federal, state, or local governmental entity or any court of law having jurisdiction over Lessee or Lessee’s operations. The County will cooperate with Lessee concerning any requests. Lessee shall furnish to County, within seven (7) days, upon request in writing, copies of any such permits, certificates and licenses.

In the event that Lessee receives notice from any governmental entity that Lessee lacks, or is in violation of, any required permit or license, Lessee shall provide the County with timely written notice of the same.

14. CONSTRUCTION AND ALTERATION OF IMPROVEMENTS

Lessee shall, at no cost or expense to the County, build, construct and complete the improvements on the Premises as generally set forth in the Conceptual Plan attached and included hereto as part of Exhibit B. However, Lessee has elected to use the County contribution contained in the RFP in the amount of XXXX towards construction and improvements. Prior to commencement of permitting and construction of said improvements, Lessee shall submit plans and specifications for the improvements to be approved in concept by the County Manager, or his/her designee, which approval shall not be unreasonably withheld.

Lessee shall commence construction of such improvements only after receiving all applicable permits and governmental approvals and diligently and continuously pursue construction until the improvements are completed.

Only those alterations and improvements approved as contemplated in Exhibit B, Lessee’s RFP, and made a part of this Lease shall be constructed on the Premises pursuant to the conditions contained herein. No additional alterations or improvements to the Premises shall be made by Lessee without receiving the written consent of the County, by and through the County Manger or his/her designee, approving of the alterations of improvements in concept. Once approved by the County, any such alteration or improvement shall be at the sole risk of Lessee and shall be in accordance with all applicable federal, state and local codes, laws and processes, and subject to inspection by the County. Lessee shall diligently and continuously pursue construction of any approved alteration/improvement until completion unless stated otherwise in the County’s written consent.

Prior to the commencement of any alteration or improvement that will exceed One Hundred Thousand Dollars ($100,000.00) in cost, including, but not limited to those improvements shown in Exhibit B, Lessee shall obtain payment and performance bonds or other security that meets the requirements of Section 255.05, Florida Statutes, in a sum equal to the full amount of the construction contracts for the alterations or improvements. Said bonds shall name County as an obligee thereunder and shall be drawn in a form and from such company acceptable to County and licensed to do business in the State of Florida; shall guarantee the faithful performance of necessary construction and completion of improvements and payment to all persons supplying contractor labor, materials and supplies, used directly or indirectly in the prosecution of the construction work provided; in accordance with approved final plans and detailed specifications; and shall protect County against any losses and liability, damages, expenses, claims, and judgments caused by or resulting from any failure to perform completely the work described.

Prior to the commencement of the construction of the improvements shown in Exhibit B or any other alterations or improvements by Lessee on the Premises, Lessee shall provide documentation to County demonstrating that Lessee’s contractors performing said work have agreed to indemnify County for any injury or damages related to the contractor’s conduct regarding said work on the Premises, and providing evidence of insurance satisfactory to the County (in at least the same amounts and form required for Lessee).

Upon completion of approved construction and within one hundred twenty (120) days of Lessee’s receipt of a certificate of occupancy, Lessee shall submit to County a complete set of as-built drawings in a media type and format acceptable for the permanent record of the County.

14A. TIME FOR SUBSTANTIAL COMPLETION

A. Substantial Completion Requirement. The Contractor/Developer shall achieve Substantial Completion of all construction work and improvements required under this Agreement within twenty-four (24) months from the date of [issuance of the Notice to Proceed /execution of this Agreement/receipt of all required permits], whichever occurs later (the "Completion Deadline").

B. Extension of Time. The County Manager, or designee, in his or her sole discretion, may grant one or more extensions of the Completion Deadline upon written request by the Contractor/Developer demonstrating good cause for such extension. Good cause may include, but is not limited to:

1. Force majeure events, including natural disasters, acts of God, or declared emergencies;

2. Delays caused by governmental agencies in the issuance of required permits or approvals;

3. Unforeseen site conditions that materially impact the construction schedule;

4. Supply chain disruptions beyond the reasonable control of the Contractor/Developer; or

5. Other circumstances deemed acceptable by the County Manager.

C. Waiver. The County Manager, or designee, may waive the Completion Deadline requirements, in whole or in part, upon a written determination that such waiver is in the best interest of the County. Any such waiver shall be documented in writing and shall not constitute a waiver of any other provision of this Agreement. Extensions or waivers granted pursuant to this Section shall not require approval by the County Council and are hereby delegated to the County Manager, or his designee, as an administrative function.

15. SIGNS

Lessee shall not erect nor allow to be erected by its sub-lessees or others any outdoor advertising, signs, posters, or any other advertising device of whatever kind or nature without prior written approval of County, which written approval shall not be unreasonably withheld, provided the business to be advertised is the businesses of Lessee or sub-lessees situated on the Premises and said sign does not violate the rules or regulations of the County, and is compatible in appearance with the adjacent facilities and improvements. Notwithstanding the foregoing, it shall be the responsibility of Lessee to obtain all necessary permits and governmental approvals for such signs.

Upon the end of the Term of this Agreement, the Lessee shall remove, obliterate, or paint out, as the County may direct at its sole discretion, any and all signs and advertising on the Premises and, in connection therewith, shall restore the portion of the Premises affected by such signs or advertising to the same condition as existed prior to the placement of such signs or advertising. In the event of failure on the part of the Lessee to remove, obliterate, or paint out each and every sign or advertising and to restore the Premises to County’s satisfaction, County may perform the necessary work and Lessee shall be obligated to reimburse County for any costs incurred by County in performing said work.

16. MAINTENANCE AND REPAIRS

a. Responsibility for Maintenance and Repairs. Throughout the Lease Term, Lessee shall assume the entire responsibility, and shall relieve County from all responsibility, for all repair and maintenance whatsoever on the Premises (which includes, without limitation, all buildings and improvements thereon), whether the repair or maintenance is ordinary or extraordinary, structural or otherwise. Lessee shall ensure maintenance and repairs are completed in a manner and class to preserve the Premises in good order and condition.

Lessee’s Obligation to Maintain Buildings and Improvements. Lessee shall keep all buildings and other improvements in good, tenantable, useable condition and without visible signs of deterioration throughout the Lease Term, and which repair and maintenance shall include, but not be limited to, all doors, windows, pavements, fencing, equipment, lighting, HVAC, furnishings, fixtures, roof, exterior walls, paved areas, utilities, landscaping and all structural support systems. The Minimum Performance Requirements, Exhibit C, contains further obligations.

b. Except for emergency and public safety items that must be immediately addressed, within thirty (30) days of written notice by County, Lessee must perform reasonable maintenance or repairs as directed by County. If the maintenance or repairs cannot reasonably be completed within thirty (30) days, Lessee shall commence the repairs within such period of thirty (30) days and provide a reasonable schedule to County for the anticipated completion of said maintenance or repairs.

c. If Lessee fails in any material respect to: (i) timely commence to maintain, clean, repair, replace, rebuild or paint within the period of time required under this Agreement, or as may be requested by the County and after written notice from the County to do so; or (ii) fails in any material respect to diligently continue to complete the maintenance, repair, replacement, rebuilding or painting of the Premises as required under the provisions of this Agreement, then the County may, at its option, and in addition to all other remedies that may be available, have the right, but shall not be obligated to, enter on to the Premises and refurbish, maintain, repair, replace, rebuild or paint all or any part of the Premises and Lessee shall pay the cost thereof, plus an additional fifteen percent (15%) administrative charge, upon demand.

17. NO UNAUTHORIZED USE

Lessee and Lessee’s associates shall use the Premises only for purposes that are expressly authorized by this Lease and shall not engage in any unauthorized use of the same.

Unauthorized uses include, but are not limited to, restricting access on any road or other area that Lessee does not lease; placing waste materials on County property or disposing of such materials in violation of any laws and regulations; and any use that would be prohibited by or would impair coverage under either party’s insurance policies or would cause an increase in the existing rate of insurance upon the Premises.

18. PREMISES IMPROVEMENTS UPON END OF AGREEMENT

Subject to County’s approval as hereinabove described, Lessee may, at its own expense, make alterations and improvements to the Premises as necessary. Lessee specifically agrees that any and all improvements, except personal property, furnishings and installed trade fixtures located upon the Premises shall become the property of the County upon termination of this Agreement. Title to all personal property, furnishings and trade fixtures shall be and remain with Lessee, subject to a Landlord’s lien hereby imposed on same or otherwise imposed by Florida law, and may be removed from the Premises at any time, provided Lessee is not then in default hereunder. If Lessee shall fail or refuse to remove any such property from the Premises upon expiration or termination of this Agreement, Lessee shall be conclusively presumed to have abandoned the same, and title thereto shall thereupon pass to County without any cost either by set-off, credit, allowance or otherwise, and shall be disposed of by County in accordance with the law without incurring liability to Lessee or any other person or entity. Lessee further agrees that upon the expiration of the Lease Term, the Premises will be delivered to the County in good, tenantable, usable condition, reasonable wear and tear and matters covered by insurance excepted.

19. UTILITIES

Lessee is solely responsible for and shall fully and promptly pay for all water, sewer, gas, electricity, telephone service, internet and other public utilities of every kind furnished to the Premises throughout the Lease Term, and all other costs and expenses of every kind whatsoever of or in connection with the use, operation, and maintenance of the Premises and all activities conducted on the Premises. The County shall have no responsibility of any kind for any of such costs and expenses. At the conclusion of the Lease, Lessee shall be responsible for removing any water meters installed by Lessee if requested by the County.

20. ADDITIONAL OBLIGATIONS OF THE LESSEE

The Lessee shall:

a. Conduct its operation hereunder in an orderly and proper manner, considering the nature of such operation so as not to unreasonably annoy, disturb, endanger or be offensive to others around the Premises.

b. Control, within reason, the conduct, demeanor and appearance of its employees, invitees, and of those doing business with it and, upon objection from the County concerning the conduct, demeanor and appearance of any such persons, shall immediately take all reasonable steps necessary to remove the cause of objection.

c. Remove from the Premises or otherwise dispose of in a manner approved by County all garbage, debris and other waste materials (whether solid or liquid) arising out of its occupancy of the Premises or out of its operations in a timely manner. Any such debris or waste, which is temporarily stored on the Premises, shall be kept in suitable garbage and waste receptacles, made of metal and equipped with tight-fitting covers and designed to safely and properly contain whatever material, may be placed therein. All such receptacles and containers shall be in such manner as is acceptable to, and approved by, County. Lessee shall use extreme care when effecting removal of all waste and debris. Piling of such waste or debris in an unsightly or unsafe manner on or about the Premises is prohibited.

d. Not commit any nuisance, waste, or damage to the Premises and shall not do or permit to be done anything which may result in the creation or commission or maintenance of such nuisance, waste or damage to the Premises, commit or suffer to be committed any waste on the Premises, or any nuisance.

e. Not do or permit to be done anything, which may interfere with effectiveness or accessibility of the drainage and sewage system, fire protection system, sprinkler system, alarm system, fire hydrants and hoses, if any, installed or located on the Premises.

f. Not create nor permit to be caused or created upon the Premises any obnoxious odor, smoke or noxious gases or vapors. The creation of exhaust fumes by the operation of a restaurant or internal-combustion engines or engines of other types, so long as such engines are maintained and are being operated in a proper manner, shall not be a violation of this Agreement.

g. Not keep or store flammable liquids within any covered and enclosed portion of the Premises in excess of the Lessee’s working requirements. Any such liquids having a flash point of less than 110 degrees Fahrenheit shall be kept and stored in safety containers of a type approved by the Underwriters Laboratories.

21. ENVIRONMENTAL REGULATIONS

Lessee agrees to comply with all applicable federal, state and local laws, regulations and ordinances protecting the environmental and natural resources and all rules and regulations promulgated or as amended from time to time and accepts full responsibility and liability for such compliance. Lessee shall at all times maintain an accurate inventory list, including quantities, of all such hazardous, and other contaminated or polluted materials, whether stored, disposed of or recycled, available at all times for inspection at any time on the Premises by County. Lessee agrees that it will neither handle nor store any toxic waste materials on the Premises.

If Lessee receives a notice of violation or similar enforcement action or notice of noncompliance, Lessee shall provide a copy of same to the County within twenty-four (24) hours of receipt by Lessee. Any environmental violation of the provisions of this Agreement shall be deemed to be a default under this Agreement if not cured within ninety days (90) days of receipt of notice from the County or any governmental regulatory agency or such time permitted to bring the Premises into compliance by the regulatory agency with jurisdiction over the subject violation, whichever is shorter, shall be grounds for termination of this Agreement, and shall also provide the County grounds for taking whatever other action it may have in addition to termination based upon default as provided for under this Agreement. If County receives a notice from any governmental entity asserting a violation by Lessee of Lessee’s covenants and agreements contained herein, or if County otherwise has reasonable grounds upon which to believe that such a violation has occurred, County shall have the right, but not the obligation, to enter the Premises and perform environmental site assessments for the purpose of determining whether there exists any environmental condition that could result in any liability, cost or expense to County. Lessee agrees to cooperate with any investigation, audit, inquiry by County or any governmental agency regarding possible violation of any environmental law, regulation or in response to any spill, leak or other emergency situation involving hazardous, toxic, flammable or other pollutants or contaminated materials.

With regard to any contamination caused by Lessee or arising by reason of Lessee’s use or occupancy of the Premises, Lessee shall immediately report same to County and take such action as is necessary to clean up and remediate the Premises at its own expense in accordance with applicable federal, state, and local law. The remediation must continue until the applicable governmental authorities have determined that no further action is necessary. If County is unable to lease the Premises during the period of cleanup and remediation due to the environmental condition or cleanup work being performed, in addition to any other damages, Lessee shall be responsible for payment of lost rent or lost use to County.

22. ENVIRONMENTAL INSPECTIONS

County shall have the right, but not the obligation, to have an environmental assessment of the Premises prepared within the first one hundred eighty (180) days of this Agreement, and to provide a copy of such report to Lessee to establish a base line indicating the current condition of the Premises. Within the last one hundred eighty (180) days of the Lease Term, County shall have the right, but not the obligation, to have an environmental assessment performed to determine whether any hazardous substances or contamination have been generated, released, stored or deposited over, or presently exist beneath or on the Premises from any source.

23. COUNTY’S RIGHT OF ENTRY

Lessee shall permit County and the agents and employees of County to enter the Premises at all reasonable times for the purpose of inspecting them, or for the purpose of posting notices of non-responsibility for alterations, additions, or repairs, without any rebate of rent and without any liability to Lessee for any loss of occupation or quiet enjoyment of the Premises. County shall provide reasonable notice to Lessee prior to any such entry of the Premises unless impractical to do so as a matter of public health, safety, or welfare. In addition, Lessee shall permit County, within the last one hundred eighty (180) days prior to the expiration of any Lease Term, to place on the Premises any usual or ordinary “for lease” signs and to exhibit the Premises to prospective Lessees at reasonable hours.

24. ABANDONMENT OF PREMISES

Lessee shall not vacate or abandon the Premises at any time during the Lease Term.

25. INDEMNIFICATION

Lessee agrees to indemnify, defend, and hold harmless the County, a body corporate and politic and a subdivision of the State of Florida, including its districts, authorities, separate units of government established by law, ordinance or resolution, partners, elected and non-elected officials, employees, agents, and volunteers from and against any and all liability, claims, demands, damage, expense, fees, fines, penalties, suits, proceedings, actions and causes of actions of any and every kind and nature arising or growing out of or in any way connected with the use and occupation of the Premises or any operation therefrom, or arising out of or in any way connected with any act or omission of the Lessee, and sub-tenants and their respective successors and assigns, or anyone claiming by, through or under them, or resulting from any breach, violation or non-performance of any covenants, condition or agreement herein contained on the part of the Lessee to be kept and performed, resulting in injury to the person or persons or property damage or loss of life or property of any kind or nature whatsoever sustained during the Lease Term hereof, except to the extent that such bodily injury or property damage or loss results from the sole negligence of County, its agents, employees or sub-contractors. Lessee shall, if required by County, defend, at its own expense, any and all such actions, suits, and proceedings, which may be brought against the County or in which the County may be impleaded or joined with others in any such actions or proceedings and shall satisfy, pay, and discharge any and all judgments, orders and decrees that may be recovered against the County in any such action or proceeding. In addition, as set forth in Section 25 herein, Lessee shall provide documentation to County demonstrating that Lessee’s contractors performing any construction, alteration, repair, or maintenance on the Premises have agreed to indemnify County for any injury or damages related to the contractor’s conduct regarding said work on the Premises. Notwithstanding the above, Lessee shall be relieved of all obligations and responsibilities described herein for any and all actions, suits and proceedings which results from the sole negligence of County, its agents, employees or sub-contractors. Compliance with the insurance requirements as provided in this Section shall not relieve Lessee of its liability or obligation to indemnify the County as set forth herein.

26. INSURANCE

Lessee shall procure and maintain at its sole cost, during the Lease Term, insurance including but not limited to, all terms, conditions, coverage types, coverage forms, and limits required in Exhibit D to this Lease. No changes are to be made to these specifications without prior written specific approval by the County.

Each insurance policy required by this Agreement shall apply separately to each insured against whom claim is made and suit is brought, except with respect to limits of the insurer’s liability.

All policies required by this Agreement shall be endorsed to state that coverage shall not be suspended, voided or canceled by either party, reduced in coverage or in limits except after thirty (30) days prior written notice to County by certified mail, return receipt requested.

The procuring of required policies of insurance shall not be construed to limit Lessee’s liability, or to fulfill the indemnification provisions and requirements of this Agreement.

The Lessee shall, at its sole cost, comply with all requirements, pertaining to the Premises, of any insurance organization or company, necessary for the maintenance of insurance, as provided in this Agreement, covering any building and appurtenances at any time located on the Premises.

Notwithstanding said insurance policies, Lessee shall be obligated for the full and total amount of any damages, injury, or loss caused by the negligence, recklessness, or intentional wrongful conduct of Lessee and persons employed or utilized by Lessee in connection with this Agreement.

Lessee shall immediately provide copies of all lawsuits where County is directly named in the suit. When providing copies of lawsuits to County, Lessee shall notify County of any of the following conditions applicable to injuries alleged by plaintiff: amputation of a major extremity; brain Injury; class action lawsuits; death; paraplegia and quadriplegia; sensory loss (sight, hearing, smell, etc.);serious burns, defined as 2nd or 3rd degree burns involving twenty-five (25%) or more of the body; severe internal injuries affective body organs; sexual abuse or molestation; sexual harassment; significant psychological or neurological involvement; spinal Injury; and lawsuit value exceeds Two Hundred and Fifty Thousand Dollars ($250,000.00).

27. NOTICES

All notices required or authorized under this Agreement shall be given in writing and shall be served by mail on the parties at the respective address shown below:

COUNTY: County of Volusia 123 W. Indiana Avenue, 301 DeLand, Florida 32720

Attention: County Manager

LESSEE:

28. FORCE MAJEURE

An “Event of Force Majeure” shall mean any event which results in the prevention of, or delay of performance by a party of its obligations under this Agreement and which is beyond the reasonable control of the nonperforming party. It includes, but is not limited to, fire, flood, earthquake, storm, lightning, epidemic, war, riot, civil disturbance, sabotage and governmental actions. In the Event of Force Majeure, the Lessee shall continue to pay rent and rent shall be equitably abated. Equitable abatement requires that the Lessee shall: 1) carry business interruption insurance within the required property insurance policy requirements contained In Exhibit D of this Lease, including naming the County as an additional named insured and Loss Payee under the property and business interruption insurance, such business interruption coverage to be in an amount to cover the loss of income up to six (6) months, breaking down the amount of rent verses other expenses recovered, insuring for all perils to include flood, wind, hail, and name storms within a 72 hour waiting period (deductible); 2) arrange with the insurer to have approved business interruption claims broken out to show rent versus other expenses and to provide the Additional Named Insured & Loss Payee, upon the County’s request, documentation after each fire, windstorm or other casualty of the status, breakdown, and amount of the business interruption claim recovery; 3) arrange for an independent CPA to certify the veracity of the amount of rent for each closure period that corresponds to the part or part of the premises that is damaged versus the total amount rent due for each applicable month;

and 4) establish herein that the following formula applies to equitable abatement: Pro-rata rent:

a)minus the business interruption proceeds = the amount of rent that may be equitably abated under the Lease. Within five (5) days after the occurrence of an Event of Force Majeure, Lessee shall deliver written notice to the County describing the event in reasonably sufficient detail and how the event has precluded the Lessee from performing its obligations hereunder and informing the County of Lessee’s intent to have the rent equitably abated during this period per the terms described in this Lease section.

29. PROPERTY RIGHTS RESERVED

This Agreement and all provisions hereof are subject to and subordinate to the terms and conditions of the instruments and documents under which the County acquired the subject property and shall be given only such effect as will not conflict or be inconsistent with the terms and conditions contained in the Agreement of said lands from the County, and any existing or subsequent amendments thereto, and are subject to any ordinances, rules or regulations which have been, or may hereafter be adopted by the County.

30. TAXES

All taxes, including any real and personal property taxes, general and special assessments and other charges of every description on lands or improvements and obligations upon the Premises whether belonging to or chargeable against Lessor or Lessee shall be promptly paid by the Lessee when due including, without limitation, intangible personal property tax upon the leasehold created hereunder. The Lessee shall have the right to contest or protest or review by legal proceedings any such other manner as may be provided by law. Such taxes or assessments imposed by governmental authorities and to institute such proceedings in the name of itself as well as the County as it may deem necessary; provided, however, that any expense incurred by reasons thereof shall be borne by the Lessee and such proceedings shall be conducted free of any expense to the County. Under such circumstances, Lessee shall fully indemnify and save the County from all loss, cost, damage and expense incurred or to be incurred or suffered by the County. In addition, Lessee shall furnish to County for its inspection upon request in writing, official receipts of the appropriate taxing County or other proof satisfactory to the County evidencing payment by Lessee.

31. DEFAULT AND TERMINATION

The happening of any one or more of the following events (hereinafter referred to as an event of default) including the failure to comply with the Minimum Performance Requirements in Exhibit C to the Lease shall constitute a breach of this Agreement on the part of the Lessee:

a. The failure of Lessee to pay any rent or other amounts or charges due under this Agreement and the continued failure to pay same for a period of thirty (30) days after the due date.

b. The failure of Lessee to fully and promptly perform any act required of it in the performance of this Agreement or to otherwise comply with all of the terms and conditions hereof.

c. The levy of execution or attachment of the leasehold interest of Lessee by process of law or otherwise in satisfaction or partial satisfaction of any judgment, debt or claim;

provided Lessee shall have the right to contest any such action against it, and during the period of contest no breach shall occur as a result of any such action.

d. Lessee’s vacating or abandoning the Premises.

e. Lessee’s non-compliance with Section 287.133, Florida Statutes, concerning

Criminal Activity on Contracts with Public Entities.

f. Material breach by Lessee of any term, provision, obligation or condition of this

Agreement.

Lessee shall not be deemed in default under the Agreement in the payment of Rent or the payment of any other monies required in this Agreement, or in the furnishing of any bond or insurance policy when required unless County shall first give to Lessee written notice of the default and Lessee fails to cure the default within ten (10) days. Said written notice shall not be given by County to Lessee until any grace period provided for in this Agreement has expired.

Except as to the provisions or events set forth in the preceding paragraphs of this Section, Lessee shall not be deemed in default under the Agreement unless County first gives to Lessee written notice of default, and Lessee fails to cure the default within thirty (30) days unless in the County’s discretion, a shorter time for compliance is required due to potential concerns related to the public health, safety or welfare.

In the event that Lessee by failing or neglecting to do or perform any activity provided for in this Agreement, defaults under this Agreement and the failure continues beyond the time provided for Lessee to cure after written notice of default from County specifying the nature of the act or thing to be done or performed, then County may, but shall not be obligated to, do or perform or cause to be done or performed such act or thing, entering on the Premises for such purpose, if County shall so elect. County shall not be held liable or in any way responsible for any loss, inconvenience, annoyance, or damage resulting to Lessee on account of any such activity. Lessee shall repay to County on demand any expenses, including compensation to the agents and employees of County. Any activity done by County pursuant to the provisions of this Section shall not be construed as County’s waiver of any such default by Lessee, or as a waiver of any covenant, term, or condition contained in this Agreement or the performance of it, or of any other right or remedy of County. All amounts payable by Lessee to County under any of the provisions of this Agreement, if not paid when the amounts become due as in this Agreement provided, shall bear interest from the date they become due until paid at the rate of ten percent (10%) per year, compounded annually.

In addition, in the event that Lessee by failing or neglecting to do or perform any activity provided for in this Agreement, defaults under this Agreement and the failure continues beyond the time provided for Lessee to cure after written notice of default from County specifying the nature of the act or thing to be done or performed, then County, at its election, may declare this Agreement to be terminated, ended and null and void, and re-enter upon and take possession of the Premises whereupon all right, title and interest of Lessee in the Premises shall end. Any such action by County shall not be deemed to preclude the exercise of any other remedy available to County as provided by statute or general law at the same time or in subsequent times or actions.

32. WAIVER OF DEFAULT

No waiver of any breach of any of the terms, provision, obligation or condition hereof shall be taken or construed to be a waiver of any other or succeeding breach of the same or any term, provision, obligation or condition hereof.

33. ACCELERATION OF RENT

If any of the events referred to in Section 31 occur then, in addition to all other rights available to the County, the full amount of the current Monthly Rent and any other payments required to be made monthly by the Lessee, and the next ensuing six (6) months’ worth of Monthly Rent will immediately become due and payable as Accelerated Rent.

34. RELATIONSHIP OF THE PARTIES

The execution of this Agreement or the performance of any of the terms, covenants, and conditions hereof shall not be deemed or construed to have the effect of creating between County and Lessee the relationship of principal and agent, or of a partnership or of a joint venture and the relationship between the parties hereto shall be and always remain that of County and Lessee. Lessee is and shall be deemed to be an independent contractor and operator responsible to all parties for its respective acts or omissions, and County shall in no way be responsible for the duties and obligations of Lessee.

35. SUBLETTING AND ASSIGNMENT OF LEASE

Lessee shall not assign this Agreement, or any interest in this Agreement, or sublet the Premises, or any part of the Premises, or any right or privilege appurtenant to it, or allow any person other than Lessee and Lessee’s agents and employees to occupy or use the Premises or any part of them, without first obtaining County’s written consent, which consent shall not be unreasonably withheld.

County’s consent to one assignment, sublease, or use shall not be a consent to any other subsequent assignment, sublease, or use. Any unauthorized assignment or sublease shall be void and shall terminate this Agreement at the County’s option. Lessee’s interest in this Agreement is not assignable by operation of law without County’s written consent.

If the Lessee makes any assignment, sublease, license, or grant of a concession with respect to the Agreement, the Lessee will nevertheless remain unconditionally liable for the performance and financial obligations of all the terms, coTndy ipt ieontes ,xtahned recovenants of this Agreement unless said liabilities and obligations are transferred, in writing, to the assignee, subtenant, licensee, or grantee. Any such transfer shall be subject to the express approval of County, which shall not be unreasonably withheld.

Neither this Agreement nor the leasehold estate of Lessee nor any interest of Lessee under the Agreement in the Premises or in any building or improvements on the Premises shall be subject to involuntary assignment, transfer, or sale, or to assignment, transfer, or sale by operation of law in any manner whatsoever, except through statutory merger, consolidation, devise, or intestate succession. Any such attempt at involuntary assignment, transfer, or sale shall be void and of no effect.

36. BANKRUPTCY OR INSOLVENCY OF LESSEE

In the event the Lessee at any time during the term of this Agreement should suffer or permit an involuntary or voluntary petition in bankruptcy to be filed against it or make any assignment for the benefit of its creditors, or should a receiver or trustee be appointed for the Lessee’s property and such or petition is not vacated within sixty (60) days thereafter, same shall constitute a default hereunder and in addition to all other rights of County in the event of default, County shall have the right, at its option, and without notice, to consider the same a termination of this Agreement.

37. MORTGAGE RIGHTS OF LESSEE

The Lessee shall have the right to mortgage its leasehold interest under this Agreement, together with Lessee’s right and interest in any buildings or improvements placed upon the Premises by the Lessee, for the purpose of securing a loan, provided that such mortgage will be subject to and inferior to the prior right, title and interest of the County in the Premises, and provided also that Lessee and County enter into an addendum to this Agreement setting forth specific terms and conditions, as well as the respective rights of Lessee and County, regarding any such mortgage, prior to the existence of any such mortgage.

38. CONDEMNATION

a. In the event of the taking of part or all of the Premises or improvements located thereon in any proceedings for condemnation or eminent domain (or any conveyance by County to avoid legal proceedings, of which Lessee shall be immediately notified), all parties hereto, including any mortgagee, shall be entitled to such rights as provided to each of them by Florida law including, but not limited to, making any claim against the condemning County with regard to the Premises. If only a portion of the premises shall be so taken, then this Agreement shall continue in full force and effect; provided, however, if the remainder of the Premises is not suitable for the use then being made of the Premises by Lessee, or if the remainder of the Premises is not one undivided parcel of property then the Lessee, at its option, may give the County thirty (30) days’ notice of termination of this Agreement.

b. If Lessee exercises its option to terminate as provided for under this Section, Lessee shall be released from payment of any rents, taxes or other obligations under the Agreement and from any further liability for the payment of any rent or the performance of any conditions thereunder upon the date of termination.

c. If the Lessee does not exercise its option to terminate as provided for under this Section, then all of the terms and conditions of the Agreement shall continue in full force and effect, except that Lessee shall be entitled to a rent adjustment throughout the remaining term of the Agreement and any extension thereof; said rent adjustment to accurately reflect the decreased value of the leasehold interest for which Lessee has not been fully compensated. Said rent adjustment shall be calculated upon a reappraisal of the property value of the remaining real property of the Premises, with said reappraisal performed at County’s expense. Upon the occurrence of a taking of part of the Premises or improvements located thereon as contemplated above in this Section, if Lessee does not exercise its option to terminate, then this Agreement shall be amended to remove such taken real property from the Premises.

d. In the event of the taking part or all of the Premises or improvements thereon by inverse condemnation or a regulatory taking, Lessee shall be afforded all rights provided under this Section.

39. SURRENDER OF LEASE

The voluntary or other surrender of this Agreement by Lessee, or a mutual cancellation of this Agreement, shall not work as a merger, and shall, at the option of County, terminate all or any existing subleases or sub-tenancies, or may, at the option of County, operate as an assignment to it of any or all such subleases or sub-tenancies.

40. DISCLAIMER OF THIRD-PARTY BENEFICIARIES

This Agreement is solely for the benefit of the Parties to this Agreement and their successors and permitted assigns.

41. SEVERABILITY

If any part of this Agreement is found invalid or unenforceable by any court, such invalidity or unenforceability shall not affect the other parts of this Agreement if the rights and obligations of the parties contained therein are not materially prejudiced and if the intentions of the parties can continue to be affected. To that end, this Agreement is declared severable.

42. LAND USE APPROVALS

This Agreement shall not be construed as a basis for (i) granting or assuring or indicating; or (ii) denying, refusing to grant or preventing any future grant of land use and/or zoning approvals, permissions, variances, special exceptions, or rights with respect to the Premises.

43. REDELIVERY OF PREMISES

Lessee will surrender and deliver the Premises, including the land and any leasehold improvements, at the end of this Agreement, or any extension hereof, to County in good order and condition, reasonable wear and tear excepted.

44. BINDING UPON SUCCESSORS

This Agreement shall be binding upon and shall inure to the benefit of the successors or assigns of the parties hereto. The terms and obligations of this Agreement shall run with the land referenced in Exhibit A to the Agreement, which is attached hereto.

45. APPLICABLE LAW AND VENUE

This Agreement and the provisions contained herein shall be construed, controlled, and interpreted according to the laws of the State of Florida.