MASTER PARKING SPACE LICENSE AGREEMENT
This Master Parking Space License Agreement (this “Agreement”) is made and entered into this 2™ day of October, 2019 by and between Phillip Ingraham, an organized and existing under the laws of the State of Florida (hereinaticr referred to as “Licensor’”), and Vessel FL Operations LLC a limited liability company organized and existing under the laws of the State of Delaware and its affiliates (hereinafter referred to as “Licensee”). Licensor and Licensee shall be referred to herein singularly as a “Party” and collectively as the “Parties.”
WHEREAS, Licensor is the owner, or the duly authorized agent of the owner, of those certain parking facilities or lots located at the addresses set forth on Exhibit “A” attached hereto (the “Premises”); and
WHEREAS, Licensee wishes to secure a license from the Licensor for the Licensee and affiliates to use a portion of the Premises (the “Licensed Area,” as further detailed on Exhibit “A” hereto) for the purpose of engaging in the following activities and services in the Licensed Area: commercial food production, delivery operations and services, installation and maintenance of Licensee’s REEF Kitchen kitchens, container kitchens and food trucks, and utilities, services and equipment to support these operations (the “REEF Kitchen Services”).
NOW, THEREFORE, in consideration of the mutual promises hereunder, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1.License. Licensor hereby grants Licensee and its affiliates an exclusive license to use the entirety of the Licensed Area under the terms and conditions set forth herein, as well as the rights of ingress and egress to the Premises to access the Licensed Area (“License”). The Parties may, upon mutual consent, add or revise the Licensed Areas to this Agreement by amending Exhibit “A” hereto in writing to reflect the necessary additional information with respect thereto.
2.Term. Licensee shall have the right to use the Licensed Area for the period beginning on the Commencement Date as set for in Exhibit “A” and ending on the Expiration Date as set forth in Exhibit “A” (the “Term”), unless earlier terminated or further extended as provided herein. If Licensee remains on the Licensed Area after the Expiration Date, this Agreement shall automatically renew on a month to month basis unless either Party notifies the other at least thirty (30) days prior to the expiration of the then-current Term that it wishes not to renew the Agreement.
2.1. Option. The Licensor hereby grants to Licensee the option to license up to fifteen (15) more spaces to include in the Licensed Area (“Option”) commencing as of the first day of the first month which is sixty (60) days after the Commencement Date. Licensee may exercise this Option by giving notice to the Licensor at any time prior to the Expiration Date and adding such spaces to the attached Exhibit A. Notice shall be deemed to have been given if in writing and made in accordance with Section 18 of this Agreement. In the event of exercise, Licensee shall license such spaces in accordance with the terms and conditions “ forth in this Agreement.
3.Termination. Each Party shall have the right to terminate this Agreement, (with respect to any Licensed Area), without cause and without penalty, upon not less than ninety (90) days prior written notice to the other Party of its intent to terminate. Each party shall also have the right to terminate this Agreement immediately in the event of default, as set forth in Section 4 below. In addition, in the event any governmental agency or other entity denies, delays, or removes Licensee’s permit to DocuSign Envelope ID: 4494A7BC-60C1-46D9-9C0A-1D76A10734A4 operate the REEF Kitchen Services in the Licensed Area, Licensee may immediately terminate this License as to such Licensed Area without any liability to Licensor for early termination.
4.Default. Without affecting any other right or remedy available to it, either Party may terminate this Agreement with immediate effect by giving written notice to the other Party if:
4.1. the other Party fails to pay any amount due under this Agreement on the due date and remains in default thirty (30) days after being notified in writing to make such payment;
4.2. the other Party commits a material breach of any term of this Agreement and fails to remedy that breach within a period of thirty (30) days after being notified in writing of such breach;
4.3. the other Party is 1) unable to pay its debts as they fall due, 2) enters into compulsory or voluntary liquidation (other than for the purpose of effecting a bona fide reconstruction or amalgamation), 3) compounds with or convenes a meeting of its creditors, 4) has a receiver, manager, administrator or administrative receiver appointed in respect of any of its assets, 4) any resolution is passed for its voluntary liquidation; or 5) if any petition is presented to any court of competent jurisdiction for its compulsory liquidation or administration or it ceases for any reason to carry on business or takes or suffers any similar action which in the opinion of the Party giving notice means that the other may be unable to pay its debts or anything analogous to the foregoing occurs in any jurisdiction
5.License Fee. For the License granted herein, Licensee agrees to pay to Licensor a license fee (“License Fee”) as set forth in Exhibit “A.” The License Fee shall be paid to Licensor on or before the fifth day of each month during the Term.
6.Operating Expenses; Utilities.
6.1. Licensee shall be responsible for the payment of the ordinary and routine operating expenses incurred in operating the REEF Kitchen Services in the Licensed Area, which are Licensee’s labor, Licensee’s insurance applicable to its REEF Kitchen Services, Licensee’s supplies and other expenses incurred in connection with its operations.
6.2. Licensor shall provide Licensee with access to water, drainage, and electricity at the Licensed Area (“Utilities”) to allow Licensee to use the same for its REEF Kitchen Services. Licensee shall pay for the Utilities used by Licensee, which usage shall be monitored through separate meters, Licensor represents and warrants that prior to the Commencement Date, separate meters for the Utilities to be used by Licensee shall be installed in the Licensed Area at Licensee’s expense.
6.3. Licensor understands the provision of Utilities is a material term of this Agreement and without access to the Utilities, the purpose of this Agreement shall be frustrated and in addition to any other rights and remedies available at law or in equity, Licensee shall have the right to terminate this agreement without incurring additional liability to Licensor.
7.Licensee’s Covenants. The Licensee covenants with the Licensor:
7.1. to pay the Fees as required hereunder;
7.2. to maintain the Licensed Area in accordance with Licensor’s standard maintenance schedule and not permit garbage to accumulate; ,
7.3. to permit the Licensor and its agents to enter upon the Premises at all reasonable times to review the condition thereof and, within 30 days after receipt of written notice, to repair or commence repairs for which Licensee is responsible under this License in accordance with the notice; and
7.4. at the expiration or sooner termination of the Term, to leave the Premises for Licensor in a state and condition consistent with the due performance of the covenants contained in this License.
8.Licensor’s Representations and Warranties. The Licensor represents and warrants to Licensee:
8.1. the Licensor is the owner of the Premises (or the duly authorized agent of the registered owner with the authority to enter into this License);
8.2. the Licensor has full right, power and authority to execute and deliver this Agreement and perform its obligations under this License and to grant the license hereby; and
8.3. If at any time during the Term any of the foregoing representations becomes untrue, the Licensor will provide the Licensee with as much advance notice of the changed circumstances as possible, and, promptly upon receipt of any request therefor, will provide the Licensee with as much additional information associated with any such change in circumstances as the Licensee may reasonably request.
9.Licensor’s Covenants. The Licensor covenants with Licensee:
9.1. upon the Licensee paying the Fees and performing the other obligations of the Licensee under this License, to allow the Licensee to peaceably and quietly have, hold and enjoy the Premises during the Term, free from interference by the Licensor and any persons claiming by, through or on behalf of the Licensor;
9.2. to pay all real property, school, local improvement, business and all other taxes, rates, charges, duties, assessments and impositions, both general and special, that may be levied, rated, charged or assessed by any governmental authority with respect to the Premises and its use, including all improvements in existence upon the Premises as of the commencement of the Term, as well as all improvements constructed;
9.3. to perform all acts including required alterations, maintenance of permits and governmental authorizations applicable to Licensor, and pay all expenses, costs and charges necessary to maintain the Premises in compliance with all applicable laws, rules regulations and all requirements of any governmental authority at all times during the Term;
9.4. to continuously provide during the Term, waste removal (in respect of waste collected on the Premises by the Licensee and deposited in the Licensor's waste receptacle), electricity, water and other utility services customarily provided for the Premises and to maintain all such services in good working order and condition;
10.Licensee’s Insurance. At all times during the Term, Licensee shall, at its sole cost and expense, maintain the following insurance through companies rated no less than A-VII under Best's most recent rating guide:
10.1. Liability Insurance. Commercial General Liability Insurance covering Licensee's operations as set forth in this Agreement with a combined single limit of $1,000,000 for bodily injury and property damage per occurrence and $2,000,000 aggregate.
10.2. Worker’s Compensation/Employer’s Liability. Statutory Workers’ Compensation Insurance and Employers Liability, to the extent required by applicable law, of not less than one million dollars ($1,000,000) each accident, one million dollars ($1,000,000) disease policy limit, and one million dollars ($1,000,000) disease per employee.
10.3. Umbrella Liability Insurance. Umbrella liability insurance in the amount of not less than two million dollars ($2,000,000.00).
11.The Licensee will provide a certificate of insurance to the Licensor (within five (5) days following written request) confirming such coverage and the certificate will confirm that the insurer shall endeavor to provide thirty (30) days’ notice to the certificate holder in the event of cancellation, but that any failure to do so shall impose no obligation on the Licensee or the insurer.
12.Licensor’s Insurance. Prior to the commencement of this Agreement and at all times during the Term hereof, Licensor shall, at its sole cost and expense, maintain the following insurance through companies rated no less than A-VIII under Best's most recent rating guide:
12.1. liability Insurance. Commercial General Liability Insurance covering Licensor's operations with a combined single limit of $1,000,000 for bodily injury and property damage per occurrence and $2,000,000 aggregate, naming Licensee, its officers, directors, employees and affiliates as additional insureds.
12.2. “all risks” property insurance on the Premises and equipment contained therein in an amount at least equal to replacement value
13.Release and Waiver of Subrogation. Licensor and Licensee hereby waive and release each other of and from any and ail rights of recovery, claim, action or cause of action against each other, their agents, officers, directors, partners and employees, for any loss or damage that may occur to the Premises or any other improvements in the Building, or personal property, including building contents, within the Premises and/or the Building, by reason of fire or the elements of nature or other events to the extent recoverable under the extended all risk property damage insurance coverage, maintained by the Party suffering such loss regardless of cause or origin including negligence of Licensor or Licensee and their agents, officers, directors, partners and employees.
14.Indemnification,
14.1. Licensee shall, at its own cost and expense, defend, indemnify and hold the Licensor harmless from and against any and all claims, actions, damages, losses, costs, expenses and any other liabilities, including reasonable legal fees and costs (individually and collectively, “Claims”) arising from personal property damage, bodily injury, or death to the extent such property damage, injury or death is attributable to the negligence or willful misconduct of Licensee.
14.2. Licensor shall, at its own cost and expense, defend, indemnify and hold Licensee harmless from and against any and all Claims sustained by Licensee and arising out of or relating to any structural faults of the Premises, any failure of the Licensor to maintain the Premises including the Licensed Area, any failure of Licensor to provide sufficient warnings, guards, or protection of persons and their property in or about the Premises from known or reasonably foreseeable dangers, and any personal property damage, bodily injury, or death attributable to the negligence or willful misconduct of the Licensor, its agents, or its employees.
14.3. The Licensor shall, at its own cost and expense, defend, indemnify and hold Licensee harmless from and against any and all Claims against Licensee arising in connection with the existence of Hazardous Substances in, about, or under the Premises (whether or not such materials or substances were Hazardous Substances at the time they were brought upon the Premises). For the purposes of this Agreement, "Hazardous Substances" includes any substance considered hazardous or toxic under any law, rule, or regulation now or hereafter brought into force by any governmental authority having jurisdiction over the Licensor, Licensee or the Premises.
15.Limitation of Liability. Licensee’s total liability arising under or in connection with any Claims, shall be limited to the aggregate fees paid hereunder for the twelve (12) month period preceding the date on which the Claims arose. Notwithstanding anything to the contrary in this Agreement, in no event will Licensee or its shareholders, members, officers, directors, employees or personnel be liable for any Claim for punitive, special, exemplary, liquidated, indirect, or consequential damages or for loss of profits or business, or for Claims arising from or related to any circumstance beyond Licensee’s reasonable control including, without limitation, any act of God or other event of Force Majeure (as defined below). “Force Majeure” shall mean any acts or circumstances beyond the reasonable control of a party including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage
16.Rules and Compliance. Each Party shall at all times comply with all applicable ordinances, rules, regulations, codes, statutes, laws, and requirements of all Federal, State, County, and Municipal governmental bodies or subdivisions (“Law”) with regard to use of the Premises and the Licensed Area. Licensee shall have the right to install and display signage in the Licensed Area in compliance with Law during the Term.
17.Surrender. At the expiration or earlier termination of this Agreement, Licensee shall vacate and surrender possession of the Licensed Area in the condition existing prior to the Term, ordinary wear and tear excepted, and shall remove all personal property from the Premises.
18.Notices. Notices shall be sent by nationally recognized overnight delivery service or by U.S. registered or certified mail, return receipt requested, and shall be deemed effective upon posting in the U.S. mail depository with sufficient postage attached thereto. Notices shall be sent to the following addresses:
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19.Casualty. In the event the Premises or the Licensed Area are rendered unfit for Licensee’s use or business, or in the event there is a material adverse impact on Licensee’s business as reasonably determined by Licensee (collectively “Casualty”), Licensee shall have the right to terminate this DocuSign Envelope ID: 4494A7BC-60C1-46D9-9C0A-1D76A10734A4 Agreement on three (3) business days’ notice and as of the date of termination the Licensee shall not be liable for any fees to be paid hereunder. If this Agreement is not terminated as permitted above, the license fee shall be abated in proportion to the Licensee’s reasonable determination of its ability to use the Licensed Area until the Premises or Licensed Area are again rendered fit for Licensee’s use.
20.Confidentiality. Licensor and Licensee agree that any and all verbal or written information which is disclosed or made available by one Party to the other Party in respect of the exchange of information related to the Parties or this Agreement, including, without limitation, know-how, trade secrets, business plans, financial information, technical information and processes, information relating to products, finances and contractual arrangements which by its nature is, or could reasonably be expected to be regarded as confidential (collectively, the “Confidential Information”) shall be kept in confidence between Licensor and Licensee and is not to be disclosed to any other party or entity. Notwithstanding the above, Licensor and Licensee shall each have the right to make disclosures (i) to the extent required by law, (ii) to the extent reasonably required to enforce such Party's rights hereunder, (iii) to the extent reasonably necessary in connection with such Party's financing, selling, leasing, or otherwise transferring or capitalizing its assets or its business; provided, that all recipients of any such disclosures have been advised of the confidentiality provisions contained herein, and (iv) to such Party’s representatives, including its brokers, accountants, employees, attorneys and other professional representatives in each case for a purpose that conforms with clauses (i) through (iii) above and provided that such representatives have agreed to be bound by the confidentiality provisions contained herein. The obligations set out in this clause shall not apply to Confidential Information which the receiving Party can demonstrate: (i) is or has become publicly known other than through breach of this Section 19; (ii) was in possession of the receiving Party prior to disclosure by the other Party; (iii) was received by the receiving Party from an independent third Party who has full right of disclosure; (iv) was independently developed by the receiving Party; or (v) was required to be disclosed by governmental authority, provided that, where lawfully permitted, the Party subject to such requirement to disclose gives the other Party prompt written notice of the requirement. All documents and other records (in whatever form) containing Confidential Information supplied to or acquired by a Party from the other Party shall be returned promptly to the disclosing Party on the expiration or early termination of this Agreement, and no copies shall be kept.
21.General Provisions.
21.1. Authority to Sign. Each individual signing this Agreement directly and expressly warrants that he/she has been given and has received and accepted authority to sign and execute the documents on behalf of the Party for whom it is indicated he/she has signed, and further has been expressly given and received the authority to enter into a binding agreement on behalf of such Party with respect to the matters concerned herein and as stated herein.
21.2. Governing Law. The laws of the state of Delaware and rules and regulations issued pursuant thereto shall be applied in the interpretation, execution and enforcement of this Agreement.
22.Assignment. Either party may assign this Agreement to its affiliate or in connection with the sale of all or substantially all of its assets. Either party may engage, at its sole expense, its affiliates or third party subcontractors to perform certain of its obligations or rights under this Agreement. Any affiliate or third party subcontractor to be engaged by a Party to perform such Party’s obligations set forth in this Agreement shall meet the qualifications typically required by such Party for the performance of work similar in scope and complexity to the subcontracted activity. The activities of any such affiliates or third party subcontractors shall be considered activities of such Party under this Agreement. Such Party shall be responsible for ensuring compliance by any such affiliates or third party subcontractors with the terms of this Agreement.
22.1. Severability. If any provision hereof is held to be invalid by a court of competent jurisdiction, such invalidity shall not affect any other provision hereof, provided such invalidity does not materially prejudice either Party in its rights and obligations contained in the valid provisions of this Agreement.
22.2. Successors and Assigns. Each and all of the covenants, terms, provisions and agreements herein contained shall be binding upon and inure to the benefit of the parties hereto and, to the extent permitted by this Agreement, their respective heirs, legal representatives, successors, and assigns.
22.3. Attorney’s Fees. In the event of a dispute, the prevailing Party (as determined by the trier of fact) shall have the right to collect from the non-prevailing Party its reasonable costs, necessary disbursements, and attorney’s fees incurred in enforcing this Agreement.
22.4. Public Announcements. Unless otherwise required by applicable law or stock exchange requirements (based upon the reasonable advice of counsel), neither Party shall make any public announcements in respect of this Agreement or the transactions contemplated hereby or otherwise communicate with any news media without the prior written consent of the other Party, which consent shall not be unreasonably withheld, conditioned, or delayed, and the Parties shall cooperate as to the timing and contents of any such announcement.
22.5. Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT OR UNDER ANY RELATED TRANSACTION DOCUMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES. THEREFORE, EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO (J) THIS AGREEMENT OR ANY RELATED TRANSACTION DOCUMENT OR (I) THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY ALSO CERTIFIES AND ACKNOWLEDGES THAT (A) IT HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (B) IT MAKES THIS WAIVER VOLUNTARILY, (C) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 20(4), AND (D) TO THE BEST OF ITS KNOWLEDGE, NO PARTY TO A RELATED TRANSACTION HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH PARTY WOULD NOT SEEK TO ENFORCE THIS WAIVER OF JURY TRIAL IN THE EVENT OF A LEGAL ACTION.
22.6. Entire Agreement. This Agreement is the entire agreement of the parties and shall replace and supersede all prior arrangements, either oral or written, as to the subject matter hereof. This Agreement cannot be modified or cancelled except by written instrument signed by both parties.
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