Loading...
HomeMy WebLinkAboutR-03-0206J-03-030 2/27/03 RESOLUTION NO. �J - 2 0 C) A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S), AUTHORIZING THE CITY MANAGER TO EXECUTE AN AMENDED AND RESTATED INTERLOCAL AGREEMENT, IN SUBSTANTIALLY THE ATTACHED FORM, WITH THE MIAMI SPORTS AND EXHIBITION AUTHORITY FOR THE DEVELOPMENT, CONSTRUCTION AND MANAGEMENT OF A VISITORS AND AVIATION CENTER ON APPROXIMATELY 5.6 ACRES ON WATSON ISLAND FOR INITIAL TERM TO EXPIRE AUGUST 13, 2042 OR FOR 30 YEARS COMMENCING ON THE COMMENCEMENT DATE, WHICHEVER EXPIRES LATER, WITH THE CITY'S EXCLUSIVE OPTION TO EXTEND THE TERM FOR TWO SUCCESSIVE TERMS OF TEN (10) YEARS EACH; CONSENTING TO THE TERMS OF THE AMENDED AND RESTATED SUBLEASE AND OPERATING AGREEMENT BETWEEN THE MIAMI SPORTS AND EXHIBITION AUTHORITY AND THE GREATER MIAMI CONVENTION AND VISITORS BUREAU, IN SUBSTANTIALLY THE ATTACHED FORM; FURTHER AUTHORIZING THE CITY MANAGER TO EXECUTE AN AMENDED AND RESTATED FUNDING AND DEVELOPMENT AGREEMENT BY AND AMONG THE CITY OF MIAMI, MIAMI SPORTS AND EXHIBITION AUTHORITY AND GREATER MIAMI CONVENTION AND VISITORS BUREAU, IN SUBSTANTIALLY THE ATTACHED FORM; AND AUTHORIZING THE CITY MANAGER TO EXECUTE SUCH OTHER DOCUMENTS AS MAY BE NECESSARY OR DESIRABLE TO IMPLEMENT THE TERMS OF THE AMENDED AND RESTATED INTERLOCAL AGREEMENT AND THE AMENDED AND RESTATED FUNDING AND DEVELOPMENT AGREEMENT, OR AS MAY OTHERWISE BE PROVIDED IN SAID AGREEMENTS, ALL IN FORM AND SUBSTANCE ACCEPTABLE TO THE CITY ATTORNEY. WHEREAS, the City of Miami, the Miami Sports and Exhibition Authority ("MSEA") and the Greater Miami Convention and Visitors CITY COMMISSION MEETING OF FEE 2 7 2003 Resolution No. �- 206 Bureau ("Bureau") have agreed to develop and operate an air transportation facility in Watson Island ("Project") pursuant to (a) the Interlocal Agreement dated August 14, 1997 ("Interlocal Agreement") by and between the City and MSEA, (b) the Sublease and Operating Agreement dated November 3, 1997 between MSEA and the Bureau, and, (c) the Funding Agreement dated November 3, 1997 between MESA, the City and the Bureau (collectively, the "Existing Agreements"); and WHEREAS, the Existing Agreements contemplate that the City will be responsible for the construction of the Project; and WHEREAS, the City and the Bureau have agreed that the Bureau shall be responsible for overseeing the construction of the Project, including, without limitation, the construction management, and the bidding and the award of the construction contracts; and WHEREAS, construction of the Project will be funded by the Bureau (directly and through grant monies) and by the Florida Department of Transportation ("FDOT") through Joint Participation Agreements with the City, as supplemented over time to provide additional funds for the Project ("JPA"); and WHEREAS, the City, MSEA and the Bureau have renegotiated the Existing Agreements to provide for, among other things, the shift in responsibility in the development of the Project to the Bureau; Page 2 of 5 NJ3- 206 NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The recitals and findings contained in the Preamble to this Resolution are adopted by reference and incorporated as if fully set forth in this Section. Section 2. The City Manager is authorized' to execute an Amended and Restated Interlocal Agreement, in substantially the attached form, with the Miami Sports and Exhibition Authority for the development, construction and management of a visitors and aviation center on approximately 5.6 acres on Watson Island with an initial term to expire August 13, 2042 or for 30 years commencing on the Commencement Date, whichever expires later, with the City's exclusive option to extend the term for two successive terms of ten (10) years each. Section 3. The City Commission consents to the terms of the Amended and Restated Sublease and Operating Agreement between the Miami Sports and Exhibition Authority and the Greater Miami Convention and Visitors Bureau, in substantially the attached form. 1 The herein authorization is further subject to compliance with all requirements that may be imposed by the City Attorney, including but not limited to those prescribed by applicable City Charter and Code provisions. Page 3 of 5 o)3— 206 Section 4. The City Manager is authorized to execute an Amended and Restated Funding and Development Agreement by and among the City of Miami, Miami Sports and Exhibition Authority and Greater Miami Convention and Visitors Bureau, in substantially the attached form. Section 5. The City Manager is authorized to execute such other documents as may be necessary or desirable to implement the terms of the Amended and Restated Interlocal Agreement and the Amended and Restated Funding and Development Agreement, or as may otherwise be provided in said agreements, all in form and substance acceptable to the City Attorney. Section 6. This Resolution shall become effective immediately upon its adoption and signature of the Mayor.2 z If the Mayor does not sign this Resolution, it shall become effective at the end of ten calendar days from the date it was passed and adopted. If the Mayor vetoes this Resolution, it shall become effective immediately upon override of the veto by the City Commission. Page 4 of 5 #)a- 206 PASSED AND ADOPTED this 27th day of February 2003. All& MArL A. DIA , MAYOR ATTEST: PRISCILLA A. THOMPSON CITY CLERK APPROV,E'D AV T010RM AND CORRECTNESS :)�/ LO TTORNEY 11:tr:AS:BSS Page 5 of 5 ry �'..Y 206 AMENDED AND RESTATED INTERLOCAL AGREEMENT BY AND BETWEEN THE CITY OF MIAMI AND THE MIAMI SPORTS AND EXHIBITION AUTHORITY dated , 2003 M1851456;13', J 2 O G 1 ".. V THIS AMENDED AND RESTATED INTERLOCAL AGREEMENT (the "Interlocal Agreement") is made this day of 2003, by and between the CITY OF MIAMI, a municipal corporation of the State of Florida (the "CITY"), and the MIAMI SPORTS AND EXHIBITION AUTHORITY, an independent and autonomous agency and instrumentality of the CITY (the "AUTHORITY"). The CITY and the AUTHORITY are sometimes referred to herein, collectively, as the "Parties." STATEMENT OF BACKGROUND AND PURPOSE A. Pursuant to the findings reported by Thompson Consultants International in the Master Plan prepared in March of 1995 that there is a demand for air transportation services in the Greater Miami downtown area, the CITY completed a Master Plan Study (the "Master Plan Study") for the development of an Air Transportation Facility on the property owned by the CITY and known as "Watson Island;" and B. Under the authority of §211.057, F.S., [now repealed; See §212.0305, F.S.] the Miami City Commission (the "City Commission"), by Ordinance No. 9662, established the AUTHORITY as an independent and autonomous agency and instrumentality of the CITY with the power to acquire in its own name, real property, and to lease, sell, and license real property, all in accordance with its stated purpose; and C. On April 25, 1996, the City Commission passed and adopted Resolution No. 96- 281 authorizing and directing the City Manager of the City of Miami (the "City Manager") to negotiate an agreement between the CITY and the AUTHORITY, and designated the AUTHORITY as the entity to coordinate the development of the Project (as defined below), which includes the Air Transportation Facility and a Regional Visitors Center (each such term as defined below) on a portion of the Property (as defined below). The agreement was negotiated, (M1851456;13) 03- 206 and on November 3, 1997, the CITY and the AUTHORITY executed an Interlocal Agreement (the "Original Interlocal Agreement"), which is hereby being amended and restated in its totality; D. The Original Interlocal Agreement contemplated the active participation of the Greater Miami Convention & Visitors Bureau (the "Bureau") in the Project and required its commitment to sublease from the AUTHORITY a portion of the Property for the purposes of developing and operating a Regional Visitors Center and administrative offices as part of the Project. The Bureau and the AUTHORITY entered into a Sublease and Operating Agreement, dated November 3, 1997, which is being amended and restated simultaneously herewith (as so amended and restated, the "Bureau Sublease"); and E. The Bureau is the officially designated marketing and sales organization for the visitors and convention industry in Miami -Dade County (the "County") and its mission is to attract visitors, who in turn contribute substantially to the growth of the aviation industry and therefore are a vital component of the aviation industry in the County; and F. Pursuant to the Original Interlocal Agreement, the CITY requested and obtained the assistance of the State of Florida Department of Transportation ("FDOT") to fund a portion of the Master Plan Study and the construction of the Project, as evidenced by the JPAs (as hereinafter defined), as the same may be increased from time to time. The balance of the cost of the Project will be funded by the Bureau, as contemplated in the Amended and Restated Funding and Development Agreement, dated of even date herewith (the "Development Agreement"), among the Bureau, the AUTHORITY and the CITY, which amends and restates that certain Funding Agreement, dated November 3, 1997, among the Bureau, the AUTHORITY and the CITY; and (M1851456;13) 2 iJ3- 206 G. On March 6, 2002, the AUTHORITY, with the consent of the CITY, entered into an Air Terminal Facility Sublease with Flying Boat, Inc., d/b/a Chalks Ocean Airways ("Chalks") (the "Chalks Sublease"), and a Food and Beverage Facility Sublease with Bimini Landing, Inc. ('Bimini Landing") (the "Bimini Sublease"), both for the use of portions of the Air Transportation Facility; and H. The Project contemplates the operation of a heliport and it is anticipated that the AUTHORITY will enter into an agreement with a helicopter operator, or operators, for the use of terminal space in the Building, and the operation of a heliport on a portion of the Airside Area; and I. In connection herewith, the CITY and the AUTHORITY have entered into that certain Sublease Agreement, dated , 2003 (the "Press Center Sublease"), pursuant to which the CITY has agreed to sublease from the AUTHORITY a portion of the Building to be used by the CITY as an international press center and a VIP conference center; and J. Since the execution of the Original Interlocal Agreement, there have been significant changes to the Project, and the CITY, the AUTHORITY and the Bureau have reached additional agreements that the Parties wish to reflect by amending and restating the Original Interlocal Agreement as provided herein. NOW THEREFORE, in consideration of the foregoing and the benefits that will accrue to the Parties by virtue of this Interlocal Agreement and the terms and conditions contained herein, the Parties hereto agree as follows: ARTICLE I EXHIBITS AND DEFINITIONS Section 1.1 Exhibits. Attached are the following Exhibits which form an integral part of this Interlocal Agreement. {M18514*13} 3 iJ3- 206 Exhibit A Survey Exhibit B Conceptual Site Plan Exhibit C Legal Description of the Property Exhibit D Form of Memorandum of Amended and Restated Interlocal Agreement Section 1.2 Defined Terms: Singular, Plural And Gender. Any word contained in the text of this Interlocal Agreement shall be read as the singular, or the plural and as the masculine, feminine or neuter gender, as may be applicable in the particular context. More specifically, however, for the purposes of this Interlocal Agreement the following words shall have the meanings attributed to them in this Section: (a) "Airport Revenue" or "Airport Revenues" shall mean those revenues derived by the CITY and the AUTHORITY directly from the Air Transportation Facility, including but not limited to rentals, tolls, fees and charges. (b) "Air Transportation Facility" shall mean all the facilities which are to be developed, operated and managed at the Property, as provided for in this Interlocal Agreement, including, but not limited to, the Airside Area, the Building and the parking area depicted in the Conceptual Site Plan. (c) "Airside Area" shall mean approximately 3.75 acres located in the Property to be utilized to provide seaplane and helicopter services and containing seaplane ramp(s), helipad(s), taxiways, runways, navigational aids, lighting facilities, public aprons and such other facilities as may be incidental to the operation of an airport/heliport. (d) "Applicable Laws" shall mean any law (including without limitation, any Environmental Law), enactment, statute, code, ordinance, administrative order, charter, tariff, resolution, order, rule, regulation, guideline, judgment, decree, writ, injunction, franchise, (M1851456;13) 4 03 206 permit, certificate, license, authorization, or other direction or requirement of any governmental authority, political subdivision, or any division or department thereof now existing or hereafter enacted, adopted, promulgated, entered, or issued, and shall include, without limitation, the JPAs. (e) "Building" shall mean the structure to be constructed on the Property to house the Regional Visitors Center, the Aviation Museum, the Bureau's offices, food services, the CITY's Press Center, the Terminal Facilities and the government services required in the operation of an international airport such as U.S. customs, immigration and naturalization services and agriculture services (such services, the "Federal Inspection Services") (f) "Commencement Date" shall mean the date on which a temporary certificate of occupancy ("TCO") (or certificate of occupancy, if no TCO is required) for the Air Transportation Facility is issued; provided, however, that, if the Air Transportation Facility is not constructed, then "Commencement Date" shall mean the date on which a TCO (or certificate of occupancy, if no TCO is required) for the "Tenant's Facility" (as defined in the Chalks Sublease) is issued. (g) "Conceptual Site Plan" shall mean the Conceptual Site Plan attached hereto as Exhibit "B". (h) "Construction Documents" shall consist of final working drawings and specifications with respect to the Air Transportation Facility including, without limitation, the following: definitive architectural drawings; definitive foundation and structural drawings; definitive electrical and mechanical drawings; final specifications; landscaping; and graphics. { M1851456;13 } 5 03- 206 (i) "CPI" shall mean the Consumer Price Index, U.S. City Average for All Items for All Urban Consumers (1982-1984 = 100) published in the Monthly Labor Review of the Bureau of Labor Statistics of the United States Department of Labor 0) "Deed Restrictions" shall mean those certain restrictions contained in Deed No. 19447 made by the Trustees of the Internal Improvement Fund of the State of Florida to the CITY dated February 24, 1949 and recorded in Deed Book 3130, Page 2157 of the Public Records of Miami -Dade County, Florida. (k) "Design Development Plans" shall mean the Design Development Plans and specifications for the Air Transportation Facility prepared by the firm of Spillis, Candela & Partners, Inc. and/or those other consultants and design professionals engaged by such firm, dated February 4, 2002, as amended on 2003, which have been approved by the Parties and are on file with the City of Miami Department of Economic Development. (1) "Entry Road" shall mean the main entry road providing legal access from MacArthur Causeway to the Property. (m) "Environmental Laws" shall mean all applicable requirements of federal, state and local, environmental, public health, and safety laws, regulations, orders, permits, licenses, approvals, ordinances and directives, including but not limited to, all applicable requirements of: the Clean Air Act; the Clean Water Act; the Resource Conservation and Recovery Act, as amended by the Hazardous and Solid Waste Amendments of 1984; the Safe Drinking Water Act; the Comprehensive Environmental Response, Compensation and Liability Act, as amended by the Superf ind Amendments and Reauthorization Act of 1986; the Occupational Health and Safety Act; the Toxic Substances Control Act; the Pollutant Discharge Prevention and Control Act; the Water Resources Restoration and Preservation Act; the Florida { MI851456;13 } 6 �j3- 206 Air and Water Pollution Control Act; the Florida Safe Drinking Water Act; and the Florida Environmental Reorganization Act of 1975. Sublease. (n) "Existing Subleases" shall mean the Chalks Sublease and the Bimini (o) 'Expense Year" shall mean each twelve (12) consecutive month period commencing on the Commencement Date, provided that the AUTHORITY, upon notice to the CITY, may change the Expense Year from time to time from and after the third anniversary of the Commencement Date to any other twelve (12) consecutive month period. For purposes of this Interlocal Agreement, the parties agree that if the Commencement Date falls on a day other than the first day of a calendar month, then (i) the first Expense Year shall include such partial month plus the succeeding twelve (12) consecutive month period, (ii) each succeeding Expense Year shall be the twelve (12) consecutive month period immediately following the expiration of the immediately preceding Expense Year and (iii) the last Expense Year shall be a partial Expense Year ending on the last day of the Term, as same may be extended. (p) 'Expense Year Anniversary" shall mean the first day of the second Expense Year and of each Expense Year thereafter. (q) "Impositions" shall mean all governmental assessments, including assessments imposed by the CITY in a uniform manner on all affected properties or taxpayers, franchise fees, excises, license and permit fees, municipal service fees, fire service fees, levies, charges and taxes, including ad valorem real estate taxes and any other tax or assessment, general and special, ordinary and extraordinary, foreseen or unforeseen, or of any kind and nature whatsoever, and which shall or may, during the Term, be assessed, levied, charged, confirmed, or imposed upon, or become due and payable out of, or become a lien on the Air (M1851456;13) 7 ij3- 20E Transportation Facility, the Property and/or improvements thereon, or appurtenances or facilities used in connection therewith, and/or any leasehold estate. (r) "Improvements" shall have the meaning specified in Section 10.3. (s) "Insurance Trust Account" shall mean a trust account to be administered by an independent trustee appointed by the CITY and the AUTHORITY who will manage and disburse funds in accordance with Articles XIV and XV. (t) "Interlocal Agreement Date" shall mean November 3, 1997. (u) "JPAs" shall mean, collectively, as the same may hereinafter be increased from time to time, (a) the Joint Participation Agreement between the CITY and FDOT for the Master Plan Study dated June 4, 1993, as supplemented by Supplemental Joint Participation Agreements dated October 14, 1994 and April 8, 1996, in the total sum of $362,500, and (b) the Joint Participation Agreement between the CITY and FDOT for construction of the Project dated January 12, 1999, as supplemented by Supplemental Joint Participation Agreement dated May 17, 2002, in the total sum of $4,700,419. (v) "Occupancy Agreements" shall mean any and all subleases, licenses, concessions or other agreements, whether now existing or to be entered into in the future, for the occupancy or use of any portion of the Property, including, but not limited to, the Subleases. (w) "PILOT Net Proceeds" shall mean the balance of the PILOT due by the AUTHORITY to the CITY after payment of Press Center Rent. (x) "Press Center" shall mean the CITY's international press center consisting of approximately 1,198 square feet located on the first floor of the Building to be leased by the CITY from the AUTHORITY pursuant to the Press Center Sublease, and used and operated by the CITY, as more particularly depicted in the Design Development Plans. (M1851456;13) 8 03- 206 (y) "Press Center Rent" shall have the meaning specified in Section 7.3. (z) "Public Agency" shall mean a political subdivision, agency, or officer of the State of Florida or of any State of the United States, including, but not limited to, state government, county, city, school district, single and multipurpose special district, single and multipurpose public authority, metropolitan or consolidated government, an independently elected county officer, any agency of the United States Government, and any similar entity of any other State of the United States. (aa) "Project" shall mean the development, construction, management and operation of the Air Transportation Facility, and any other related facilities and improvements on the Property which must be ancillary to the operations of the Air Transportation Facility, and parking facilities. (bb) "Property" shall mean that certain area located on Watson Island, which is legally described in Exhibit "C", and shall include, without limitation, the Project. (cc) "Regional Visitors Center" shall mean the portion of the first floor of the Building to be occupied by the Bureau as a Visitors Information Center and an Aviation Museum, as provided in the Bureau Sublease. (dd) 'Rentable Square Feet" shall mean, with respect to the Building, approximately 36,901.8 square feet, which is the estimated total square footage available for lease within the Building and excludes the total square footage in the Building occupied by the Federal Inspection Services. { M1851456;13 } (ee) "Shortfall Reserve" shall have the meaning set forth in Section 2.2(b). 0 03-- 206 (ff) "Subtenants" shall mean all parties using or occupying any portion of the Property under an Occupancy Agreement including, but not limited to, the Bureau, Chalks, Bimini Landing and the CITY. (gg) "Subleases" shall mean the Bureau Sublease, the Press Center Sublease and the Existing Subleases. (hh) "Terminal Facilities" shall mean the terminal facilities to be located on the first floor of the Building. (ii) "TSA" shall mean the Transportation Security Administration (formerly known as the Federal Aviation Administration) and any successor thereto. 6j) "VIP Conference Center" shall mean the CITY's VIP conference center consisting of approximately 478 square feet located on the first floor of the Building, as more particularly depicted in the Design Development Plans, to be leased by the CITY from the AUTHORITY pursuant to the Press Center Sublease, and used by the CITY, provided that the Bureau and the AUTHORITY shall have the right to use the VIP Conference Center when not in use by the CITY as provided in the Bureau Sublease. ARTICLE II PURPOSE OF INTERLOCAL AGREEMENT Section 2.1 Purpose of Interlocal Agreement. Pursuant to the provisions of the Florida Interlocal Cooperation Act of 1969, the CITY and the AUTHORITY hereby enter into this Interlocal Agreement for purposes of developing, operating and managing the Project. Section 2.2 Obli>?ations of CITY and the AUTHORITY. (a) The CITY shall undertake all reasonable efforts to apply for grants, or other funds which may be available from Public Agencies or third parties for purposes of {M1851456-113) 10 03— 206 funding the development, construction, operation, or maintenance of the Project. The parties acknowledge that the CITY has been awarded grants in the aggregate amount of $5,062,919 (the "FDOT Funds") which are subject to the terms and conditions set forth in the JPAs. As the recipient of the FDOT Funds and the sponsor of the Project (identified as Job No: 87098-3810), the CITY is responsible for compliance with all conditions of the JPAs, including specifically, the reporting requirements set forth therein. As the manager of the Project, once construction thereof has been completed, the AUTHORITY shall be responsible for compliance with any requirements of the JPAs that survive construction of the Project, including, specifically, the expenditure of Airport Revenue. Except to the extent expressly provided herein, in the Development Agreement or in any Occupancy Agreement, neither the CITY nor the AUTHORITY shall have any financial responsibility with respect to the development, construction, management or operation of the Project. The CITY shall establish a Project Account, as required under the JPAs, in which the CITY shall deposit all FDOT funds pertaining to the Project. The AUTHORITY, subject to the provisions of this Interlocal Agreement, upon the completion of construction of the Project, shall assume responsibility for the day-to-day management and subleasing of the Project. The Parties agree and acknowledge that none of the duties of the AUTHORITY shall be construed to impose financial obligations or liabilities of any kind upon the AUTHORITY, except with respect to the expenditure of Airport Revenue actually in its possession derived from the management and operation of the Project, as provided in Section 2.4, and the expenditure of PILOT Net Proceeds to fund the Shortfall Reserve and to satisfy Shortfalls (each term as hereinafter defined), as provided in Sections 2.2(b) and (c) below. (b) Promptly following the receipt of monthly payments from Subtenants on account of the PILOT, the AUTHORITY shall deposit PILOT Net Proceeds into a separate (M1851456;13) 11 03- 206 account within the Airport Revenue Fund (as hereinafter defined) (the "Shortfall Reserve") until the balance in the Shortfall Reserve reaches $425,000. When the balance in the Shortfall Reserve has reached $425,000, the AUTHORITY shall deposit PILOT Net Proceeds in a separate account within the Airport Revenue Fund and shall remit the same to the CITY annually in accordance with Section 7.3. If at any time the Shortfall Reserve falls below $425,000, the AUTHORITY shall deposit the next payment(s) of PILOT Net Proceeds due to the CITY into the Shortfall Reserve until the balance thereof is restored to $425,000. The Shortfall Reserve may be used at any time by the AUTHORITY to satisfy any Shortfalls, subject to the terms of Section 2.2(c) below. (c) If at any time during any Expense Year Airport Revenues in the Airport Revenue Fund (without taking into consideration amounts then on deposit in the Shortfall Reserve) are insufficient to fund any costs, expenses or other liabilities incurred by the AUTHORITY in connection with the operation, management, maintenance or repair of the Project for such Expense Year (the excess of such costs, expenses or other liabilities over such Airport Revenues being referred to herein as a "Shortfall"), the AUTHORITY shall, to the extent permitted under the various Occupancy Agreements, increase the operations and maintenance components of rent payable by the Subtenants to the AUTHORITY under the Occupancy Agreements ("O&M Expenses") to satisfy such Shortfall. If such Airport Revenues are insufficient to satisfy such Shortfall after giving effect to the increase in the O&M Expenses contemplated by the immediately preceding sentence, the CITY hereby authorizes the AUTHORITY to apply funds in the Shortfall Reserve to satisfy such Shortfall; provided, however, that, (i) prior to applying funds in the Shortfall Reserve to satisfy any Shortfall, the AUTHORITY shall have, for the fifteen (15) days prior to the proposed date of such application, { M1851456;13 ) 12 x;03- 206 used its diligent efforts to collect all Airport Revenues then due and owing from any Subtenant which is then in default under the terms of its Occupancy Agreement (a "Defaulting Subtenant") and to re -let any vacant premises in the Building and (ii) the AUTHORITY shall not be entitled to use the Shortfall Reserve to satisfy any Shortfall to the extent such Shortfall resulted from the AUTHORITY's gross negligence or willful misconduct, which Shortfall shall be satisfied from the AUTHORITY's own funds or from other funds procured by the AUTHORITY. Following any such application of funds in the Shortfall Reserve, the AUTHORITY shall continue to use its diligent efforts to collect such Airport Revenues from the Subtenants and to re -let any vacant premises in the Air Transportation Facility, such efforts to include, if the AUTHORITY deems it appropriate under the circumstances, the commencement of legal proceedings against any Defaulting Subtenant and the exercise of other remedies against such Subtenant, all as provided in the relevant Occupancy Agreement and Applicable Laws. To the extent that funds in the Shortfall Reserve are then insufficient to satisfy any Shortfall, then the CITY shall promptly discharge such Shortfall on behalf of the AUTHORITY; provided, however, that the CITY shall not be required to discharge any Shortfall to the extent such Shortfall resulted from the AUTHORITY's gross negligence or willful misconduct, which Shortfall shall be satisfied from the AUTHORITY's own funds or from other funds procured by the AUTHORITY. The AUTHORITY shall have no obligation to reimburse the CITY for any funds withdrawn from the Shortfall Reserve to fund any Shortfall as provided above or for any other funds expended by the CITY to fund any Shortfall unless and to the extent the AUTHORITY subsequently collects amounts due and owing from a Defaulting Subtenant, provided, however, that the AUTHORITY will use its diligent efforts to collect such amounts from Defaulting Subtenants in accordance with the Occupancy Agreements and Applicable Laws. { M1851456;13 } 13 03- 206 (d) At the expiration of the Term, the AUTHORITY shall promptly pay over to the CITY any balance remaining in the Shortfall Reserve. Section 2.3 Goals and Responsibilities of the Parties Pertaining to the Air Transportation Facility. The CITY shall be responsible for establishing and approving policies for the operation and maintenance of the Air Transportation Facility. The AUTHORITY shall be responsible for the day-to-day management, operation and subleasing of the Airport Transportation Facility, which responsibilities shall be performed by a qualified airport manager or operator reasonably satisfactory to the Bureau and the City Manager. Except as provided in Sections 2.2(b) and (c) and as may otherwise be expressly provided herein or in any Occupancy Agreement, it is further agreed that neither the CITY nor the AUTHORITY shall be required to expend funds other than Airport Revenues for the operation, management, maintenance and repair of the Air Transportation Facility. The Parties hereby agree that it is the goal of this Interlocal Agreement to accomplish the following objectives: (a) To create a synergy between the Air Transportation Facility, the various convention and exhibition centers which are operated by the CITY and the AUTHORITY, and the goals and undertakings of the Regional Visitors Center which will create economic benefits for the convention and exhibition business of the CITY; (b) To operate, manage, and maintain the Air Transportation Facility solely out of Airport Revenues (subject to Sections 2.2(b) and (c)); and (c) To establish policies and practices to minimize any negative impact upon the users of the area surrounding the Property which may be a direct result of the development and operation of the Air Transportation Facility. { M1851456;13 1 14 03_ 206 Section 2.4 Creation of Fund. For the purpose of accurately and adequately recording and accounting for the operations and funds pertaining to the Air Transportation Facility, and for the purpose of providing the AUTHORITY with funds for the necessary expenditures in carrying out the duties and functions set forth in Section 2.3 of this Article, the AUTHORITY shall establish, designate and maintain such separate account(s) and sub-account(s) as it shall consider proper in the sound management of Airport Revenue and as required under the terms of the JPAs. All Airport Revenue shall be deposited to the credit of such separate account(s) and sub-account(s) (collectively, the "Airport Revenue Fund"). Expenditures from the Airport Revenue Fund may be made by the AUTHORITY for purposes deemed by the AUTHORITY, in its sole discretion, to be related to the operation, management, maintenance and repair of the Air Transportation Facility, as authorized by law, and for no other purpose. Section 2.5 Lease of Property to the AUTHORITY. For and in consideration of the rents herein reserved by the AUTHORITY and of the covenants and agreements herein contained on the part of the AUTHORITY to be performed, the CITY hereby leases to the AUTHORITY, and the AUTHORITY hereby accepts from the CITY, the Property. Section 2.6 Title. The CITY covenants and agrees that (a) as of the Interlocal Agreement Date and as of the date hereof, it is well seized of the Property, and has good title to it, free and clear of liens and encumbrances having priority over this Interlocal Agreement, subject only to the Deed Restrictions, recorded easements and other items recorded in the public records of Miami -Dade (M1851456;13) 15 03- 206 County, Florida and (b) the CITY has full right and authority to enter into this Interlocal Agreement. Section 2.7 Additional Property for Airside Area. The CITY shall use its reasonable efforts to obtain as soon as possible the required authorization by the State of Florida, under the Deed Restrictions, to add approximately one-half acre of land, adjacent to the Airside Area on its east side along Government Cut, to the Airside Area (the "Additional Property"). If the CITY is successful in obtaining the required approvals, then the Additional Property shall be added to the description of the Property, and shall be made part of this Interlocal Agreement by amendment. Section 2.8 Parking. (a) The CITY hereby further leases to the AUTHORITY and grants to the AUTHORITY the exclusive right to use, without charge, at all times after the Commencement Date through the end of the Term (i) five (5) parking spaces adjacent to the Building (depicted as "Area A" in the Conceptual Site Plan), to the extent legally permissible and (ii) thirty-four (34) parking spaces located within the boundaries of the Property (depicted as "Area B" in the Conceptual Site Plan), to the extent legally permissible, in each case for use by the AUTHORITY, the Subtenants and their respective employees, guests, customers and other Invitees. (b) In addition, the CITY agrees to provide, or to cause to be provided, on or adjacent to the Property (depicted as "Area C" in the Conceptual Site Plan), surface parking and, when parking volume requires it, in the CITY's sole opinion, a parking garage facility, in each case with sufficient capacity to serve the needs of the Subtenants and their employees, guests, customers and other invitees. The additional parking area or garage contemplated under this i M1851456;13 } 16 03- 206 provision shall contain no less than the greater of (a) one hundred forty-one (141) parking spaces or (b) the number of parking spaces required by law as of the Commencement Date and shall be available to the Subtenants of the Air Transportation Facility from and after the Commencement Date through the end of the Term, provided, however, that the foregoing provision shall not apply if the Air Transportation Facility, as contemplated in the Development Agreement, is not constructed. The Subtenants shall be responsible for the payment of rates for the use of parking spaces on an "as -used" basis. Rates for the parking spaces shall not exceed the lesser of (i) the then prevailing municipal rates for parking spaces or (ii) such rates as the AUTHORITY or the Bureau may negotiate with the CITY or the parking facility operator, as applicable. ARTICLE III THE TERM Section 3.1 Initial Term. The initial term of this Interlocal Agreement shall be until August 13, 2042 commencing on the Interlocal Agreement Date or for thirty (30) years commencing on the Commencement Date, whichever expires later (as the same may be extended pursuant to Section 3.2, the "Term"). Section 3.2 Renewal Term(s). The CITY, at its sole and exclusive option, upon request of the AUTHORITY, may extend the Term for two successive extension terms of ten (10) years each (collectively, the "Extension Terms"). The terms and conditions of this Interlocal Agreement shall continue in effect during the Extension Terms. ARTICLE IV RENT Section 4.1 Rent. The intent of this Interlocal Agreement is to establish an Air Transportation Facility in the City of Miami, for the benefit of the public, and to promote tourism (M1851456;13) 17 �;��-- 206 and improve the economy in the Greater Miami area. The Parties hereby agree that the consideration to be paid to the CITY by the AUTHORITY for the AUTHORITY's rights under this Interlocal Agreement is the operation, management and maintenance of the Air Transportation Facility and the performance of a public service. The AUTHORITY agrees that the rent to be charged to Subtenants shall be established in accordance with the requirements of FDOT, and, if applicable, the requirements of the TSA. The AUTHORITY agrees to deposit all rents received from Subtenants in the Airport Revenue Fund. ARTICLE V EASEMENTS Section 5.1 Easements Granted to the AUTHORITY. Unless otherwise being provided by the CITY, and subject to Section 5.2 below, the CITY hereby agrees to grant such easements in, over, upon, through and under Watson Island, as may be needed and requested by the AUTHORITY or any of its Subtenants for the purpose of facilitating the following: (a) Utility Easements. Installing, maintaining, repairing and replacing utility facilities such as water, gas, electric, and telephone lines, and storm and sanitary sewers within the Property, each such utility easement to be in form and substance reasonably acceptable to the AUTHORITY (each such utility easement, a "Utility Easement"); and (b) Access Easements. Providing access for pedestrians and motor vehicles (including automobiles, service and emergency vehicles) and construction vehicles to and from the Property, each such access easement to be in form and substance reasonably acceptable to the AUTHORITY (each such easement, an "Access Easement"). Without limiting the generality of the foregoing, on or prior to the Commencement Date, the CITY shall grant to the { MI851456; l3 } 18 03- 206 AUTHORITY, the Subtenants and their respective employees, guests, customers and other invitees an Access Easement over the Entry Road. Section 5.2 Limitations on Easement Rights. The CITY shall grant such easements as provided for in Section 5.1 above; provided, however, that the location of the easement is approved by the City Manager, the grant is specifically authorized by a duly adopted resolution of the City Commission and such easements shall be granted upon the express condition that: (a) The grantee of such easement shall carry on any construction, maintenance or repair activity with diligence and dispatch, and shall use its diligent efforts to complete the same in the shortest time possible under the circumstances (Unavoidable Delay excepted), and shall not carry on any construction, maintenance or repair activity in the easement area in such manner as to cause unreasonable interference with the public's use and enjoyment of Watson Island or the Subtenants' use and enjoyment of the Property; (b) Except in the event of emergency, the grantee of such easement shall not undertake any construction, replacement, maintenance or repair activity in such easement area unless prior notification is provided to the CITY and the AUTHORITY and such activity is approved by the City Manager; (c) The grantee of such easement shall promptly upon the completion of any such construction, replacement, maintenance or repair activity, at no cost to the CITY or the AUTHORITY, restore the surface of the easement area as nearly as possible to its former condition and appearance; (d) The grantee of such easement shall agree to indemnify the CITY and the AUTHORITY from all claims and actions in law and in equity which may arise out of, or as a { MI851456;13 } 19 aJ3— 206 consequence of the negligence of the grantee, or its authorized agents, servants or employees, in maintaining, repairing and utilizing the easement area; and (e) The grantee of such easement shall obtain such commercial general liability insurance as may be reasonably required by the CITY's Risk Management Department. Section 5.3 Easement for Development of Other Areas of Watson Island. (a) Provided that there is no material interference with the Project, the CITY reserves the right to erect, use, maintain and repair water, sanitary sewer and storm water utilities, mechanical and electrical conduits, pipes, and cables in, to, under and through the Property as often and to the extent that the CITY may now or hereafter deem to be necessary or appropriate for the development of other areas of Watson Island. The AUTHORITY acknowledges that the leasehold interest conveyed under this Interlocal Agreement is subordinate to the CITY's right to convey, from time to time, such easements as may be necessary for right-of-way, vehicular and pedestrian traffic across or along any or all parts of the Property; provided, however, that: (i) such easements shall not (A) be located on any areas where any structures or other improvements (other than landscaping, roads or other non -vertical improvements, which the CITY shall, at its expense, restore, or cause the beneficiary of such easement to restore, to their condition immediately prior to the grant of such easement, to the extent reasonably feasible taking into consideration the nature of the easement granted, such as, by way of example, a roadway over a previously landscaped area) are located; provided that the foregoing requirement shall not apply to any Utility Easement or (B) unreasonably interfere in any manner with the operations of, or use and enjoyment of the Property by, the AUTHORITY or any Subtenant; (ii) the CITY shall be responsible for the construction of any entrances, gates or fences required for the use of such easements; (iii) the beneficiaries of such easements will be (M1851456:13) PIC 03- 206 obligated to provide such insurance or other indemnity as the AUTHORITY may reasonably require or as may otherwise be customary and to pay such portion of the costs of maintenance and repair of the easement property as the AUTHORITY may require; (iv) such easements shall be otherwise reasonably satisfactory in form and substance to the AUTHORITY and its counsel; and (v) the beneficiaries of such easements will reimburse the AUTHORITY for all costs and expenses it incurs (including, but not limited to, attorneys' fees and expenses) in connection with the review and negotiation of such easements. (b) The AUTHORITY shall require all Subtenants to acknowledge the foregoing reservation and the CITY's intention to undertake (or cause to be undertaken) further development on Watson Island, all of which may cause some noise and other interference with the Project. The CITY agrees to use best efforts to minimize the interference and disruption by such development on the Project, and in no event shall any work related to such development unreasonably interfere with the Project. Section 5.4 Connection of the Air Transportation Facility to Utilities. The Parties acknowledge that the nature of the Project requires the relocation of the utilities underground. The relocation work shall be performed in accordance with the Development Agreement. The utilities servicing the Air Transportation Facility will be connected from the property line to the Building in accordance with the Development Agreement. ARTICLE VI USES Section 6.1 Use of the Property; Access. The Parties to this Interlocal Agreement agree that the Property shall be used for the purpose or purposes set forth in Section 6.2. No use shall be made or permitted to be made of (M1851456;13) 21 03— 206 the Air Transportation Facility, or the Property, or acts done, which are in violation of the Deed Restrictions, any Applicable Law, or the JPAs, the breach of which might result in penalties to the CITY, or forfeiture of the CITY'S title to the Property. The AUTHORITY shall not commit, or permit any Subtenant to commit any waste with respect to the Air Transportation Facility or any other improvement, building and appurtenance at any time located on the Property. The Property shall not be used for purposes of conducting any gambling activities thereon, or from there, of any nature whatsoever, without the prior approval of the City Commission, which approval may be unreasonably withheld, or conditioned upon, the payment of additional Rent. The AUTHORITY shall have access to the Air Transportation Facility twenty-four (24) hours per day, seven (7) days per week. Section 6.2 Uses Permitted at the Air Transportation Facility. The Airport Transportation Facility is to be utilized for commercial and non-commercial aviation activities, specifically to provide seaplane and helicopter services, and all activities in connection therewith, or incidental to the operation of an airport or heliport, including, but not limited to, the construction, maintenance and operation of approach areas, runways, taxiways, public aprons, parking areas, hangars, automobile parking areas, navigational aids, lighting facilities, public terminals, food service areas, offices related to the air transportation services, the Press Center, the VIP Conference Center, the Regional Visitors Center and administrative offices related thereto, offices for Federal Inspection Services, and public facilities appurtenant to the airport, heliport and the Regional Visitors Center, and for associated facilities beneficial to the airport, heliport and Regional Visitors Center. The Air Transportation Facility shall be operated for the use and benefit of the public, and all airport facilities and services shall be made available to the public on fair and reasonable terms and without discrimination. The CITY { MI851456; 13 } 22 03' 206 acknowledges and agrees that each Subtenant under the Subleases may use the Property for the purposes set forth in its respective Sublease. Section 6.3 The Parties' Obligations Pertaining to the Issuance of a Request for Qualifications or Invitation for Bids. The Parties shall comply with all legal requirements, including, specifically, those of FDOT, pertaining to the solicitation and selection of individuals, corporations, or other legal entities qualified to: Facility; (a) occupy facilities and furnish concessions at the Air Transportation (b) provide professional services in connection with the planning, design and construction of the Air Transportation Facility; and (c) provide professional services for the management, maintenance and operation of the Air Transportation Facility. The Parties acknowledge that the Bureau has been authorized to issue a Request for Qualifications to procure a construction manager for the Project by resolution of the City Commission adopted on August 22, 2002. Section 6.4 Reservation of Rights of CITY. The CITY reserves the right, subject to the AUTHORITY'S consent, which consent shall not be unreasonably withheld or delayed, to subordinate this Interlocal Agreement to the provisions of any future agreement entered into between the CITY and the United States, the County, the State of Florida, or any agency thereof to obtain funding aid for the improvement, operation, or maintenance of the Air Transportation Facility. (M1851456;13) 23 03- 206 Section 6.5 Naming Rights. Subject to Section 13.1 of the Bureau Sublease, the AUTHORITY shall have the exclusive right to sell, license or otherwise grant the naming rights to the Air Transportation Facility, and any other portion of the Property, or any other facility constructed on the Property, for a period not to exceed the Term; provided, however, that: (a) the City Manager approves of the name, which approval shall not be unreasonably withheld, conditioned or delayed, and (b) the AUTHORITY shall pay to the CITY ninety percent (90%) of any and all moneys received by the AUTHORITY in connection with the selling, licensing or granting of such naming rights. For so long as the Bureau occupies more than fifty percent (50%) of the total Rentable Square Feet of the Building, (i) the Building shall be known as the "Greater Miami Visitors and Aviation Center" and (ii) provided no Event of Bureau's Default (as defined in the Bureau Sublease) has occurred and is then continuing, any naming rights sold, licensed or granted by the AUTHORITY hereunder shall include the name "Greater Miami Visitors and Aviation Center" and shall be subject to the prior written approval of Bureau, which approval shall not be unreasonably withheld and shall be granted or denied within fifteen (15) days after the AUTHORITY's request therefor. ARTICLE VII IMPOSITIONS, PAYMENT FOR MUNICIPAL SERVICES ("PILOT") Section 7.1 Impositions. The AUTHORITY shall include in all Occupancy Agreements an affirmative obligation on the part of the respective Subtenant to pay and discharge, as they become due, any and all Impositions, before any fine, penalty, interest or cost may be assessed for non-payment. The affected party, at its sole cost and expense, may apply for a total or partial tax exemption, if (M1851456;13 } 24 ai3— 206 eligible; provided that any such application for an exemption shall not relieve such party from its obligation to discharge all Impositions as and when due. Section 7.2 Payment for Services. The AUTHORITY and the CITY acknowledge that as of the Interlocal Agreement Date the definition of "governmental, municipal, or public purpose" as set forth in Section 196.012 of the Florida Statutes provides that: a governmental, municipal, or public purpose or function shall be deemed to be served or performed when the lessee under any leasehold interest created in property of any governmental unit is demonstrated to perform a function or serve a governmental purpose which could properly be performed or served by an appropriate governmental unit, or which is demonstrated to perform a function or serve a purpose which would otherwise be a valid subject for the allocation of public funds; and that an activity undertaken by a lessee which is permitted under the terms of its lease agreement of real property designated as an "aviation area" on an airport layout plan which has been approved by the TSA, and which real property is used for the administration, operation, business offices and activities related specifically thereto in connection with the conduct of an aircraft full service fixed base operation which provides goods and services to the general aviation public in the promotion of air commerce shall be deemed an activity which serves a governmental, municipal, or public purpose or function. Additionally, the use by a lessee, licensee, or management company of real property or a portion thereof as a convention center or visitors center, is deemed a use that serves a governmental, municipal, or public purpose or function when access to the property is open to the general public with or without a charge for admission. Therefore, in the event that the Property, or any of the Improvements is exempt from ad valorem taxation, the Parties agree that in recognition of the municipal services provided to the Property by the CITY, and in support of these municipal tM1851456;13 25 03- 206 services, the CITY shall receive a Payment In Lieu of Taxes ("PILOT") in an initial amount equal to $2.98 per Rentable Square Foot of the Building per annum (the "Initial PILOT Amount") from the Commencement Date through the end of the first Expense Year. The PILOT shall increase on each Expense Year Anniversary by multiplying the PILOT amount (determined on a per -square -foot basis) for the immediately preceding Expense Year (which, in the case of the first Expense Year Anniversary, is the Initial Budgeted PILOT Amount) by (i) a fraction, the numerator of which is the CPI for the date which is two (2) months prior to the beginning of the Expense Year for which such adjustment is to be made and the denominator of which is the CPI for the date which is two (2) months prior to beginning of the immediately preceding Expense Year, or (ii) 103%, whichever is less. The AUTHORITY hereby covenants that all Occupancy Agreements shall obligate the Subtenants to pay to the AUTHORITY, for remittance to the CITY (less (A) any amounts applied by the AUTHORITY to satisfy Shortfalls pursuant to Section 2.2 hereof and (B) any amounts credited against the Press Center Rent pursuant to Section 7.3 hereof), their corresponding pro rata share of the PILOT, provided, however, that (i) the PILOT required to be paid pursuant to the Existing Subleases shall be subject to the limitations set forth therein and (ii) the AUTHORITY shall have no liability to the CITY for the payment of any PILOT unless (and to the extent) the AUTHORITY shall have received from the applicable Subtenant its pro rata share thereof, it being understood that the foregoing shall not relieve the AUTHORITY of its obligation to collect the PILOT in accordance with the terms of the Occupancy Agreements or to enforce its rights and remedies (whether contractual or otherwise) against any Subtenant which defaults in the payment of the PILOT. {MI851456;13} 26 93- 206 Section 7.3 Manner of Payment. The PILOT shall be payable by the AUTHORITY to the CITY in annual installments, with payments due on the first Expense Year Anniversary and on each Expense Year Anniversary thereafter. The CITY hereby authorizes the AUTHORITY to deduct from the PILOT due to the CITY pursuant to Section 7.2 hereof (a) an amount equal to the monthly rent payable by the CITY to the AUTHORITY pursuant to Section 7 of the Press Center Sublease as and when such rent shall become due (the "Press Center Rent") (it being understood, for the avoidance of doubt, that no amounts shall be deducted from the PILOT to fund the Bureau's rent obligations with respect to the Press Center under the Bureau Sublease), and (b) amounts required to fund the Shortfall Reserve to the extent provided in Section 2.2(b) hereof. ARTICLE VIII CITY'S RIGHT OF ENTRY Section 8.1 CITY's Right of Entry. The AUTHORITY shall permit the CITY and its agents, representatives, employees, and/or designees to enter into the Air Transportation Facility, and to all other areas of the Property, at all reasonable times for any reasonable purpose; provided, however, that the CITY'S rights under this Section shall not unreasonably interfere with the operation of the Air Transportation Facility, or the performance of the AUTHORITY'S obligations under this Interlocal Agreement or any Occupancy Agreement. {MI851456;13} 27 03 M ARTICLE IX PARTICIPATION OF ADDITIONAL PUBLIC AGENCIES, ASSIGNMENTS, SALE, AND SUBLEASE AGREEMENTS Section 9.1 Participation of Additional Public Agencies, Assignments and Sale of Property. The Parties hereby agree and understand that this Interlocal Agreement is entered into to facilitate the delivery of certain public services, and to manage, operate and maintain related commercial facilities in connection therewith. Therefore, at any time during the Term, if the Parties determine that to make the most efficient use of their powers it would be necessary and advantageous to cooperate with other Public Agencies, or that the services and function of the AUTHORITY under this Interlocal Agreement would be more efficiently served by another Public Agency, the Parties may amend this Interlocal Agreement to include the participation of another Public Agency, or the AUTHORITY, subject to the prior written approval of the City Commission, may assign its rights and obligations under this Interlocal Agreement to another Public Agency, subject, in all cases, to the terms of the Occupancy Agreements. The CITY reserves the right to sell, or mortgage the Property, and to transfer or delegate any of its duties or obligations under this Interlocal Agreement, as may be permitted by law, subject to the AUTHORITY'S consent, which consent may not be withheld or unreasonably delayed, and further subject to the terms of the Occupancy Agreements. Section 9.2 Sublease Agreements. (a) The AUTHORITY may grant a license, or permit a concession, or sublet all or any portion of the Property; provided that (i) the identity and business character of the licensee, concessionaire, or subtenant are incidental to the operation of the Air Transportation Facility; (ii) the use of the Airside Area shall be in common with the public with respect to the provision of air transportation services, for public purposes with respect to the operation of { M1851456;13 } 28 03- 206 Regional Visitors Center, and shall not violate the Deed Restrictions or Applicable Laws; and (iii) the AUTHORITY obtains the prior written consent of the City Commission. Any amendment to any substantive provision of any Occupancy Agreement shall be subject to the prior written consent of the City Manager, unless the City Attorney of the City of Miami, in his or her sole discretion, determines that the prior consent of the City Commission is required. (b) The CITY hereby agrees to perform all of the duties and obligations, if any, required to be performed by it in its capacity as prime landlord under each Occupancy Agreement. To the fullest extent permitted by Applicable Laws, and expressly subject to the provisions of Section 786.28, Florida Statutes, as amended from time to time, the CITY agrees to indemnify and hold harmless each of the AUTHORITY and its directors, officers, employees, legal counsel and agents (all of the foregoing, collectively, the "Indemnified Parties"), from and against any and all losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses (including, to the extent permitted by Applicable Laws, attorneys' and paralegal fees and expenses) and disbursements and any and all actions, suits, proceedings and investigations in respect thereof, directly or indirectly, caused by, relating to, based upon, arising out of or in connection with the CITY's own negligent failure to perform any of the duties or obligations required to be performed by it in its capacity as prime landlord under any Occupancy Agreement; provided, however, that such indemnity shall not apply to any act or omission of any third party or to any portion of any such loss, claim, damage, obligation, penalty, judgment, award, liability, cost, expense or disbursement to the extent it is found to have resulted directly or indirectly, in whole or in part, from the gross negligence or willful misconduct of any third party or of any of the Indemnified Parties. In granting this indemnity, the CITY expressly reserves its sovereign immunity as a Florida municipal corporation. (M1851456;13) 29 03- 206 (c) The CITY hereby consents to, accepts and approves all of the provisions of each of the Bureau Sublease (including, but not limited to, Articles VI, XI and XII and Sections 2.2, 13.1, 17.4, 19.1, and 26.1 thereof) and the Press Center Sublease. ARTICLE X POSSESSION AND CONSTRUCTION OF FACILITIES Section 10.1 Delivery of Possession of the Property. The CITY delivered possession of the Property to the AUTHORITY on March 6, 2002. Section 10.2 Cooperation. The AUTHORITY and the CITY recognize that there may be additional parties with which either the CITY or the AUTHORITY may be dealing for purposes of obtaining funds to undertake the construction of the Improvements described in this Article. Accordingly, the Parties shall use good faith to assist and cooperate with each other in their respective efforts to secure the financing for this Project, including, without limitation, executing and/or consenting to, as applicable, the documents and actions required in connection therewith. Section 10.3 The Improvements. At such time as adequate financing has been secured for the cost of development and construction of the Project, and subject to the terms and conditions of the JPAs, the Subleases and the Development Agreement, and in the manner provided by law, including but not limited to the provisions of Section 287.055 of the Florida Statutes, the Parties shall cause the Improvements (as defined below) to be constructed. All improvements constructed upon or installed at the Property including approach areas, runways, taxiways, public aprons, parking areas, automobile parking areas, navigational and navigational aids, lighting facilities, public terminals, offices related to the air transportation services, the Press Center, the Regional Visitors Center and administrative offices related thereto, offices for the Federal Inspection Services, and (M1851456;13) 30 03- 206 public facilities appurtenant to the airport and the Regional Visitors Center, shall be referred to in this Interlocal Agreement as the "Improvements." Section 10.4 Manner of Construction of Improvements. The Improvements shall be constructed in accordance with the Development Agreement, the Subleases, all Applicable Laws, and the JPAs and with the plans, specifications and other Construction Documents therefor, all of which shall be approved in the manner set forth in the Development Agreement. Section 10.5 Design, Concept Plans and Preliminary Drawings. All Improvements for the Property shall be designed so as to achieve an integrated site development incorporating the Air Transportation Facility and Regional Visitor Center in a manner which maximizes the flow of visitors through the Air Transportation Facility and the adjacent areas in Watson Island. The Parties have approved the Design Development Plans. Section 10.6 Review and Approval of Construction Documents. Review and approval of Construction Documents shall be as set forth in the Development Agreement. Section 10.7 Performance and Payment Bonds. The Parties shall cause the contractor or contractors undertaking any part of the construction and equipping of the Improvements, to provide performance and payment bonds in connection with each of the contracts, waivers of all liens or rights of lien for labor and materials furnished in the construction and equipping of the Improvements as provided in the Development Agreement. (M1851456;13) 31 03- 206 Section 10.8 Insurance. The Parties shall require every such contractor to furnish insurance protecting the CITY, the AUTHORITY and their respective commissioners, officers, agents, and employees, as their interests may appear, against any claim for personal injuries, death claims, and property damage that may be asserted because of the construction and equipping of the Project. The insurance required herein is to be of the types and in those amounts as may be determined by the City Manager. Section 10.9 Title to the Improvements. Except as provided in Section 1.21 of the Chalks Sublease with respect to title to improvements constructed by Chalks during Phase III (as such term is defined in the Chalks Sublease), at all times during the Term, title to all Improvements located upon the Property shall vest in the CITY, unless otherwise authorized by the City Commission. Section 10.10 CITY Property to Remain Free of Liens. The AUTHORITY shall have no power, or right to, and shall not in any way encumber the CITY's fee simple interest in the Property. If any mechanics' liens shall at any time be filed against the Property, as a result of the actions of the AUTHORITY, or any of the Subtenants, licensees, or concessionaires, the AUTHORITY shall (or shall cause the Subtenant responsible for the imposition of such lien to) promptly take and diligently pursue a cause of action to have the same discharged or to contest in good faith the amount or validity thereof, and if unsuccessful in such contest, to have the same discharged. Section 10.11 Prompt Payment of Materialmen and Suppliers. The Parties shall cause to be made prompt payment of all money due and legally owing to all persons doing any work, including contractors and subcontractors, or providing supplies (M1851456;13) 32 03- 206 and equipment in connection with the development, construction, reconstruction, or operation of the Improvements. Nothing in this Section shall limit the right of the Parties to contest, in good faith, by legal proceedings or otherwise, whether any amount claimed, or alleged to be due and owing to any such person is legally due and owing, and the Parties may withhold payment of such amounts pending resolution of such dispute. Section 10.12 Permits and Authorizations. The CITY shall assist the AUTHORITY and its Subtenants in obtaining all other permits, certificates and authorizations needed for the construction of the Air Transportation Facility. Any permits, authorizations or other formal government approvals, when requested by the AUTHORITY from the CITY, will not be unreasonably withheld, delayed, or conditioned by the CITY. ARTICLE XI NOTICES Section 11.1 Method and Addresses. All notices, demands, or other writings required or allowed in this Interlocal Agreement must be in writing and shall be delivered or sent, with copies indicated, by personal delivery, certified mail, telex or overnight delivery service to the Parties as follows (or at such other address as a Party shall specify by notice given pursuant to this Section): TO THE CITY: CITY OF MIAMI Attn: City Manager 3500 Pan American Drive Miami, Florida 33133 Fax: WITH COPIES TO: CITY ATTORNEY City of Miami Miami Riverside Building, 9th Floor 444 S.W. 2nd Avenue Miami, Florida 33130 Fax: (305) 416-1801 (M1851456;13) 33 ,J3- 206 DEPARTMENT OF ECONOMIC DEVELOPMENT City of Miami Miami Riverside Building, 3rd Floor 444 S.W. 2nd Avenue Miami, Florida 33130 Fax: (305) 416-2156 TO THE AUTHORITY: MIAMI SPORTS AND EXHIBITION AUTHORITY Attn: Executive Director 701 Arena Boulevard Miami, Florida 33136 Fax: (305) 350-7867 ARTICLE XII MAINTENANCE, REPAIR AND ALTERATIONS Section 12.1 Alterations, Improvements, and Changes Permitted. The AUTHORITY shall have the right (a) to effect, or permit its Subtenant(s) to effect, all alterations, repairs, improvements and/or changes ("Alterations") that are necessary for the health, safety and welfare of the Subtenants, licensees and patrons using the Property or to preserve the structural integrity of the Air Transportation Facility, and (b) to effectuate all Alterations that must be made to comply with, or are permitted by, the provisions of this Interlocal Agreement, the JPAs, the Development Agreement, the Subleases or Applicable Laws. Notwithstanding the foregoing, any structural Alterations or Alterations to the exterior of the Building shall require the City Manager's prior written approval, which approval may be denied or conditioned in the City Manager's sole discretion. Section 12.2 Maintenance and Repairs. The AUTHORITY shall maintain and repair, or require its Subtenants to maintain and repair, at no cost to the CITY, all the Property demised under any Occupancy Agreement, and the Improvements to be constructed thereon, in a presentable condition consistent with good business practice, and in a safe, neat, clean and good physical condition. (M1851456;13) 34 03- 206 Section 12.3 CITY's Reservation of Rights. The CITY reserves the right to take any action it considers necessary to protect the aerial approaches of the airport against obstruction, together with the right to prevent the AUTHORITY or the Bureau or any other Subtenant from erecting, or permitting to be erected, any building or other structures on the Property which in the reasonable opinion of the CITY would limit the usefulness of the Air Transportation Facility or constitute a hazard to aircraft; provided, however, that the CITY shall not take any action to challenge the buildings, structures and improvements described or depicted in the Design Development Plans. ARTICLE XIII COMPLIANCE WITH APPLICABLE LAWS Section 13.1 Legal Requirements. During the Term, the Parties shall comply with all Applicable Laws and the Deed Restrictions. The AUTHORITY (a) shall require all Subtenants to comply with (i) all Applicable Laws and (ii) the Deed Restrictions, and (b) shall require all Subtenants to obtain and maintain, at no cost or expense to the CITY, all necessary permits and licenses that are required in connection with their operation and use of the Property, provided, however, that the CITY acknowledges that the Existing Subleases do not explicitly require Chalks and Bimini Landing to comply with the Deed Restrictions or the JPAs. ARTICLE XIV INSURANCE Section 14.1 CITY's Insurance Requirements. During the term of the Development Agreement, the CITY shall obtain, or cause to be obtained and maintained, the insurance coverage required by the Development Agreement. (M1851456;13) 35 033 206 Section 14.2 AUTHORITY's Insurance Requirements. Commencing with the Completion Date (as defined in the Development Agreement), the AUTHORITY shall obtain and maintain at all times during the Term hereof, such insurance coverage as may be reasonably required by the CITY, which shall include the following: (a) Property. "All Risk" property insurance against loss or damage to the Improvements resulting from fire, windstorm, hail, lightning, vandalism, malicious mischief and such other perils ordinarily included in special causes of loss property forms, including coverage for flood, insuring one hundred percent (100%) of the replacement cost of the Improvements including any costs which may be required to comply with Applicable Laws. The CITY shall be named as a loss payee under such insurance policies. (b) Liability. Commercial general liability insurance on a comprehensive general liability coverage form, or its equivalent, including contractual liability, products (including petroleum products and environmental contamination coverage for events arising out of a Subtenant's operations) and complete operations, liquor liability insurance, personal injury and premises and operations coverage against all claims, demands or actions, against the CITY or the AUTHORITY for bodily injury (including death) and property damage resulting directly or indirectly from any act, omission or activities of the CITY or the AUTHORITY or any of their respective employees, agents, subtenants, licensees, concessionaires, invitees, patrons, or contractors, in such amounts as may be required by the CITY's Risk Management Department, naming the CITY and the AUTHORITY as an additional insured. Additionally, the AUTHORITY shall cause the users of the Airside Area, such as the operators of the seaplane or (M1851456;13) 36 03- 206 helicopter facilities, to provide such additional coverage as are usual and customary for policies insuring such activities, with such limits as may be reasonably requested by the CITY. (c) Workers' Compensation. Workers' Compensation insurance complying with the statutory limits of the State of Florida, including employer's liability with limits in such amounts as may be required by the CITY'S Risk Management Department, to insure all persons or entities employed by the AUTHORITY or any of its subtenants, licensees, or concessionaires in connection with the Air Transportation Facility and the Property. The AUTHORITY shall collect the insurance premiums from all of the Subtenants as an operations and maintenance expense. Notwithstanding anything in this Article XIV to the contrary, the insurance required to be maintained by the AUTHORITY pursuant to this Section may be provided by the Subtenants so long as the amount of insurance available to pay losses is at least the minimum required by this Article. Section 14.3 Subtenants' Insurance Requirements. (a) Prior to entering into any Occupancy Agreement, the AUTHORITY shall submit a copy of such proposed Occupancy Agreement to the City Manager for purposes of allowing the City Manager to review and, if deemed necessary and reasonable by the City Manager, to revise the insurance requirements set forth therein, which revisions shall then be included in the proposed Occupancy Agreement. The insurance to be required by the AUTHORITY under the Occupancy Agreements shall include, with respect to each Subtenant's demised premises, floor coverings and personal property, fixtures, equipment, furniture, and trade fixtures therein, the same types of coverage required to be provided by the AUTHORITY (M1851456;13) 37 03- 206 under Section 14.2 above with respect to such Subtenant's property and use of the premises. Additionally, the Subtenants shall be required to carry business interruption coverage; provided that the CITY acknowledges that Chalks shall not be required to carry such coverage during "Phase I" and "Phase III" (each term as defined in the Chalks Sublease). (b) The CITY and the AUTHORITY shall be named as additional insureds and loss payees (to the extent of their interest in any fixtures or equipment provided by either of them and used by the applicable Subtenant) under the policies. (c) The CITY agrees that the insurance provisions of the Existing Subleases, as in effect on the date hereof, shall be deemed to be in compliance with the requirements of this Article XIV. Section 14.4 Builder's Risk. During construction of the Improvements, in addition to the other insurance coverages required under this Article, the AUTHORITY shall ensure that the responsible party obtains and maintains builder's risk insurance, as may be required by the CITY. Section 14.5 Additional Coverage. The CITY retains the right, from time to time, to require such additional insurance coverage as may be consistent with commercially reasonable practices and standards in the industry. Section 14.6 Provisions. (a) All policies of insurance referred to in this Article shall be in form and substance satisfactory to the CITY and the AUTHORITY and issued by insurance companies satisfactory to the CITY and the AUTHORITY. The review and approval of the City Manager {M1851456;13) M 03-- 206 with respect to the insurance coverage required hereunder shall not be unreasonably delayed, conditioned or withheld. (b) The AUTHORITY shall ensure that all of the insurance policies premiums are paid, and that such policies, or certificates thereof evidencing compliance with the insurance coverage required under this Article, are delivered to the CITY prior to the completion of construction, as defined in the Development Agreement, or occupancy of the Property, as the case may be, and at least thirty (30) days prior to the expiration of any such policy, a certificate of insurance of the renewal policy shall be provided to the CITY. In the event the AUTHORITY fails to enforce the requirements of insurance herein called for or any of the Subtenants fails to pay the premiums therefor, or to deliver such policies, or certificates thereof, to the CITY, the CITY shall be entitled, but shall have no obligation, to cause such insurance to be issued and pay the premiums therefor, which premiums shall be collected as additional rent payable to the AUTHORITY by the Subtenant and after receipt of such payment the AUTHORITY shall reimburse the CITY. (c) Each insurer shall by endorsement on its policy or by independent instrument furnished to the CITY provide that the CITY be given thirty (30) days' prior written notice before any policy shall be materially altered or canceled. Any modification to the insurance requirements of this Interlocal Agreement shall require the prior written approval of the City Manager. (d) All required insurance shall be evidenced by valid and enforceable policies issued by financially sound insurance companies, rated not less than "A" as to management, and no less than class "X" as to financial strength, in Best's Rating Guide (most current edition) or other insurance companies agreed to by the CITY. tM1851456;13) 39 03- 206 (e) The proceeds payable under all the insurance required hereunder shall be made available to the Parties to be utilized as provided for under Article XV below. ARTICLE XV DAMAGE OR DESTRUCTION Section 15.1 Adequately Insured Damage or Destruction. If the Improvements are damaged or otherwise destroyed, and such damage or destruction was caused by a casualty covered by and proceeds are paid under an insurance policy, such insurance proceeds (the "Insurance Proceeds") shall be deposited into the Insurance Trust Account, and concurrently with such deposit the Parties shall deposit the applicable deductible into the Insurance Trust Account, with disbursements to be (a) made directly to the Parties in order to repair such damage or destruction as soon as reasonably possible or (b) made to the Subtenants to repair such damage or destruction as soon as reasonably possible in accordance with the terms of the Occupancy Agreements. In each case, this Interlocal Agreement shall continue in full force and effect. Subject to the occurrence of circumstances permitting the AUTHORITY not to restore pursuant to the terms of any Occupancy Agreement, the CITY shall commence the restoration as soon as reasonably possible following the damage or destruction, and shall use good faith efforts to diligently and continuously prosecute the restoration to completion. Such restoration shall be in accordance with and in compliance with all Applicable Laws. All such restoration shall be performed by the CITY in accordance with the requirements set forth in this Article and in a manner consistent with the Occupancy Agreements. Section 15.2 Underinsured Damage or Destruction. If the Improvements are damaged or otherwise destroyed, and such damage or destruction was caused by a casualty not covered under the insurance required by Article XIV of this Interlocal Agreement, or if so covered the Insurance Proceeds are insufficient to pay for the tM1851456,13 } Rol �j3- 206 entire costs of restoration, the Parties shall cooperate with each other in locating and securing additional funds which may be available from other Public Agencies. In any event, the AUTHORITY shall within one hundred eighty (180) days from such damage or destruction provide the CITY with written notice of the AUTHORITY'S election either to utilize the Insurance Proceeds along with other funds to pay the cost of restoration, or to terminate this Interlocal Agreement. In the event that the AUTHORITY elects to terminate this Interlocal Agreement, any Insurance Proceeds shall be disbursed as provided in the last sentence of Section 15.3. In the event that the AUTHORITY elects to utilize Insurance Proceeds and other funds to restore the Improvements, concurrently with such election, the AUTHORITY shall: (a) deposit the applicable deductible amount into the Insurance Trust Account, and (b) commit in writing to deposit the amount of any deficiency into the Insurance Trust Account and provide the CITY with evidence that the AUTHORITY has secured sufficient funds to cover the deficiency. The CITY shall commence the restoration as soon as reasonably possible following the damage or destruction, and shall use good faith efforts to diligently and continuously prosecute the restoration to completion. Such restoration shall be in accordance with and in compliance with all Applicable Laws. All such restoration shall be performed by the CITY in accordance with the requirements set forth in this Article and in a manner consistent with the Occupancy Agreements. Section 15.3 AUTHORITY's Election Not to Restore. Notwithstanding any provision in this Article XV to the contrary, but subject to the provisions of any Occupancy Agreement, if (i) damage or destruction of the Air Transportation Facility, or any of the other Improvements, occurs during the last three (3) years of the Term of this Interlocal Agreement, (ii) the damage or destruction is such that the cost of restoration is {M1851456;13) 41 ;3 3— 206 more than 50% of the full replacement cost of the Air Transportation Facility, or (iii) as a result of the Casualty, the Air Transportation Facility is rendered wholly untenantable, then, the AUTHORITY may elect not to restore and rebuild the Air Transportation Facility and to terminate this Interlocal Agreement by written notice to the CITY within one hundred eighty (180) days after the occurrence of such damage or destruction. In the event the AUTHORITY elects to terminate this Interlocal Agreement, the Insurance Proceeds payable to the AUTHORITY or the CITY with respect to the Air Transportation Facility (excluding insurance proceeds payable to any Subtenant pursuant to its respective Occupancy Agreement) shall be disbursed as follows: (a) First, to the CITY to raze the Building and other improvements on the Property and clear the site; and (b) Next, to Bureau and FDOT in proportion to the unamortized portion of their respective construction contributions (or the portion thereof required to be reimbursed under the JPAs, as applicable), assuming amortization of each such contribution on a straight- line basis over thirty (30) years (e.g., if Bureau's Construction Contribution (as defined in the Bureau Sublease) is $7,000,000, amortized over thirty (30) years, the annual depreciation is $233,333. In the event of a casualty in year twenty (20) and the Building is not reconstructed, Bureau would receive $2,333,330 ($233,333 x 10 years) to the extent insurance proceeds are sufficient; provided, however, that if (i) FDOT requires reimbursement and the insurance proceeds are not sufficient to reimburse both parties, FDOT shall be reimbursed prior to Bureau, and (ii) FDOT does not require reimbursement of any of its construction contribution, subject to clause (a) above, Bureau shall be reimbursed prior to any other party; and (M1851456;13) (c) The balance, if any, to the CITY. 42 o33— 206 Section 15.4 Restoration. Unless otherwise agreed by the Parties, provided funding is available as provided in this Interlocal Agreement and the Occupancy Agreements, all restoration, repairs and reconstruction ("Restoration") of the Air Transportation Facility and other improvements under this Article shall be performed by the CITY in compliance with the terms and conditions of the Occupancy Agreements governing repairs and alterations and the terms and conditions of this Article, including, but not limited to, Sections 15.1 and 15.2 hereof. All Restorations shall be performed by contractor(s), subcontractors and materialmen procured and engaged by the CITY in accordance with Applicable Laws. All plans and specifications required in connection with a Restoration shall be reviewed by and be subject to the approval of a qualified architect selected by the CITY. If the plans and specifications are materially different from those used originally to construct the Air Transportation Facility, the plans and specifications must also be approved by the City Manager. All costs and expenses in connection with a Restoration shall be paid from Insurance Proceeds and, in the event such Insurance Proceeds are insufficient, from other sources of funds (if any) committed by the CITY, the AUTHORITY, any other governmental agency or any Subtenant under any Occupancy Agreement, it being understood that neither the CITY nor the AUTHORITY shall in any event be liable for any such costs or expenses. ARTICLE XVI UTILITIES Section 16.1 Payment of Utilities. The AUTHORITY shall cause to be paid all charges for consumption of water, gas, heat, light, power, telephone service, and other public utilities of every kind furnished to the Property throughout the Term, and all other costs and expenses of every kind whatsoever in connection with the installation, use, operation and maintenance of utilities at the Property. (M1851456;13) 43 03-- 206 ARTICLE XVII GOVERNMENTAL PURPOSE AND FINANCIAL SUPPORT Section 17.1 Governmental Purpose and Financial Support. The conveyance of the leasehold interest in the Property pursuant to this Interlocal Agreement, and the Parties' activities pertaining to the planning, establishment, development, construction, improvement, maintenance and operation of the Air Transportation Facility and Regional Visitors Center, are public and governmental functions exercised for a public purpose. The CITY shall cooperate with and assist the AUTHORITY in all matters respecting the development and construction of the Project. Upon completion of the Project, the AUTHORITY shall be responsible for the subleasing, management and operation of the Project; provided, however, that any liability incurred by the AUTHORITY in the leasing, management or operation of the Project shall not be binding on the CITY unless the CITY has in writing, prior to the AUTHORITY incurring such liability, approved funding by the CITY for the payment thereof. The AUTHORITY acknowledges that (i) the Deed Restrictions prohibit the use of the Property by private persons and entities for private use or purpose, and require that the Property be used solely for public purposes, and (ii) a violation of the Deed Restrictions will result in the forfeiture of title to the Property to the State of Florida. Accordingly, the AUTHORITY covenants and agrees to comply with the Deed Restrictions and to include a similar covenant to comply with the Deed Restrictions in the Occupancy Agreements, provided, however, that the CITY acknowledges that the Existing Subleases do not explicitly require Chalks and Bimini Landing to comply with the Deed Restrictions. { MI851456;13 } 44 o)3— 206 ARTICLE XVIII ABSENCE OF THIRD PARTY BENEFICIARIES Section 18.1 No Third Party Beneficiaries. Nothing in this Interlocal Agreement, express or implied, is intended to (a) confer upon any entity or person other than the Parties any rights or remedies under or by reason of this Interlocal Agreement as a third -party beneficiary, or otherwise; or (b) authorize anyone not a party to this Interlocal Agreement to maintain an action pursuant to or based upon this Interlocal Agreement. ARTICLE XIX DEFAULT AND REMEDIES Section 19.1 Events of Default. The occurrence of any one or more of the following events is deemed an "Event of Default": (a) If the AUTHORITY defaults in the due and punctual payment of any installment of any Rent when due and payable in accordance with this Interlocal Agreement, and such default continues for more than thirty (30) days after the sum is due; (b) If the CITY defaults in the due and punctual payment of any funds when due and payable to the AUTHORITY in accordance with this Interlocal Agreement, and such default continues for more than thirty (30) days after the sum is due; (c) If either Party defaults in the due performance or observance of any material covenant or condition or provision under this Interlocal Agreement, other than the payment of Rent, and such default continues for more than thirty (30) days after written notice of the default from the non -defaulting Party; provided that if such default is curable but cannot be cured within thirty (30) days, the defaulting Party shall have a reasonable period of time (not to { M1851456; l3 ) 45 03- 206 exceed one hundred eighty (180) days) to cure such default so long as the defaulting Party commences the cure within thirty (30) days and diligently prosecutes same to completion. Section 19.2 Remedies. If any Event of Default occurs, the Party not at fault shall have the right to terminate this Interlocal Agreement upon thirty (30) days written notice to the defaulting Party. Section 19.3 No Waiver. Any waiver (either expressed or implied by law) by either Party of any default of any term, condition or covenant herein contained shall not be a waiver of any subsequent default of the same or any other term, condition or covenant herein contained. Section 19.4 Remedies Cumulative. No remedy conferred upon or reserved to the CITY, or the AUTHORITY shall be considered exclusive of any other remedy, but shall be cumulative and shall be in addition to every other remedy given under this Interlocal Agreement or existing at law or in equity or by statute; and every power and remedy given by this Interlocal Agreement to the CITY or the AUTHORITY may be exercised from time to time and as often as occasion may arise or as may be deemed expedient by the CITY or the AUTHORITY. No delay or omission of CITY or AUTHORITY in exercising any right or power arising from any default shall impair any right or power, nor shall it be construed to be a waiver of any default or any acquiescence in it. Section 19.5 Unavoidable Delay. Notwithstanding anything to the contrary contained in this Interlocal Agreement, neither the CITY (including the City Manager) nor the AUTHORITY, as the case may be, shall be considered in breach of or in default in any of its obligations under this Interlocal Agreement, except for a default in the payment of money, in the event of delay in the performance of any (M1851456;13) 46 � 3. 206 such obligations due, in whole or in party, to any strike, lockout, acts of God, inability to obtain labor or materials due to governmental restrictions, enemy action, civil commotion, fire, unavoidable casualty (each, an "Unavoidable Delay") (not including such party's insolvency of financial condition), it being the purpose and intent of this paragraph that in the event of the occurrence of any such Unavoidable Delays the time or times for the performance of the covenants, and provisions of this Interlocal Agreement shall be extended for a period of time equal to the period of Unavoidable Delay; provided, however, that the Party seeking the benefit of the provisions of this Section shall, within thirty (30) days after such Party shall have become aware of such Unavoidable Delay, give notice to the other Party thereof, in writing of the cause or causes thereof, and the time of the anticipated delay. ARTICLE XX LEGAL COUNSEL Section 20.1 Legal Counsel. The City Attorney shall be the legal advisor of and attorney and counsel for the CITY, and for all matters related to the purpose of this Interlocal Agreement. The AUTHORITY may utilize such other counsel as deemed appropriate subject to approval by a four-fifths (4/5) vote of the City Commission. ARTICLE XXI ATTORNMENT BY SUBTENANT AND NON -DISTURBANCE BY CITY Section 21.1 Cancellation or Termination of Interlocal Agreement or Occupancy Agreements. Neither the cancellation or termination of this Interlocal Agreement by the Parties hereto nor the cancellation or termination of any Occupancy Agreement through no action or fault of the corresponding Subtenant shall interfere with any rights of any Subtenant under its respective Occupancy Agreement or its occupancy of the Property; provided that: (i) the corresponding { M1851456;13 } M 1iA. 206 Occupancy Agreement has been approved by the City Commission; (ii) the Subtenant is not then in default under the corresponding Occupancy Agreement beyond any applicable notice or curative period; and (iii) such Subtenant enters into an agreement with the CITY whereby such Subtenant attorns to the CITY. In such event, the CITY shall recognize and not disturb the Subtenant under the terms of the Occupancy Agreement. This non -disturbance provision shall be self -operative and no further agreement between the CITY and any Subtenant shall be necessary to effect the same. The foregoing non -disturbance provision shall not apply in the event this Interlocal Agreement or the corresponding Occupancy Agreement is terminated as a result of a violation of the Deed Restrictions, whereupon all Occupancy Agreements shall terminate. ARTICLE XXII MORTGAGE FINANCING AND ISSUANCE OF BONDS Section 22.1 Leasehold Mortgage. Provided that an Event of Default has not occurred and is not then continuing, the AUTHORITY shall have the right, subject to the City Commission's approval, at any time and from time to time to encumber the leasehold estate created by this Interlocal Agreement and any Improvements by mortgage or other security instrument, subject to the terms hereof and the terms of the Occupancy Agreements. ARTICLE XXIII ENVIRONMENTAL Section 23.1 Environmental Warranty of AUTHORITY. The AUTHORITY shall include in all subleases, licenses, concession agreements and management agreements, provisions whereby such third parties shall warrant and represent that: (M1851456;13) 03— 206 (a) they will not unlawfully use or employ the Property, or any of the facilities thereon to handle, transport, store, treat, or dispose of any hazardous wastes or substances on the Property; (b) they will not knowingly conduct any activity on the Property in violation of any applicable Environmental Laws; and (c) they will conduct any activity on, or relating to the Property, and the operations of the Air Transportation Facilities in full compliance with all Environmental Laws and all terms, conditions and requirements of any and all permits, licenses, consents, approvals, and authorizations of any federal, state, or local regulatory agencies or authorities. Nothing set forth herein above is intended to prohibit the AUTHORITY from authorizing Subtenants, licensees, or concessionaires to (i) undertake all activities in connection with the receipt, distribution, storage, handling, purchase, sale, and dispensing of aviation fuel and other similar products for airport purposes in accordance with Environmental Laws or (ii) use materials in normal quantities that are applicable to the use of the Property for the purposes stated in the applicable Occupancy Agreement, so long as the levels are not in violation of any applicable Environmental Laws. The provisions of this Article shall survive the termination of this Interlocal Agreement and of the documents in which they are contained. ARTICLE XXIV SIGNAGE; WATSON ISLAND ASSOCIATION Section 24.1 Sip -name. The AUTHORITY understands that the CITY desires to provide a neat and consistent look to all directional signs placed on the rights-of-way adjacent to Watson Island and on Watson Island through an island -wide signage system. Accordingly, the CITY will, at the { M1851456;13 } iJ3- 206 CITY's expense, through a graphic design firm selected by the CITY, develop a pathfinder/directional-type signage system (the "Signage"), directing visitors to the various sites on Watson Island. The cost of fabrication and installation of the Signage for Watson Island shall be shared by all of the parties benefiting from the Signage based on the number of users thereof. The AUTHORITY agrees to require all Subtenants to pay their prorata shares of the cost of the Signage and to include this provision in all Occupancy Agreements. Subject to any municipal requirements and the City Manager's prior approval (not to be unreasonably withheld), the AUTHORITY reserves the right to erect and maintain, and to permit any Subtenants to erect and maintain in accordance with the Occupancy Agreements, such signs on the Property as the AUTHORITY deems appropriate. Section 24.2 Watson Island Association. The AUTHORITY acknowledges, and shall disclose to all Subtenants, the CITY's intent to form an association (the "Association") that will have, as its primary purpose, the promotion and marketing of Watson Island, the maintenance and administration of common areas, and the enforcement of all existing and future rules and regulations affecting Watson Island, including, by way of example, landscaping and directional signage guidelines. The AUTHORITY shall require all Subtenants to participate in, and contribute financially to the establishment and operation of, the Association, so long as the Association assessments are reasonable and do not impose an unreasonable financial burden on the applicable Subtenant. The costs passed through to the Subtenants through the Association shall not include the cost of installation of infrastructure (i.e., roadways, utilities and the like) on Watson Island under any circumstances. The amount of the Subtenants' contribution, and that of all other occupants or tenants in Watson Island, shall be established by the CITY in an equitable, non-discriminatory and reasonable (M1851456;13 } 50 03- 206 manner. The Parties acknowledge that some of the existing tenants of Watson Island and the Air Transportation Facility are not currently obligated to participate in the Association. In no event shall any Subtenant's contribution include (i) costs and expenses associated with or relating solely to the tenants of portions of Watson Island not participating in the Association, or (ii) assessments that would have been made against such non -participating tenants if they had agreed to participate in the Association. The CITY or the AUTHORITY, as applicable, shall disclose to each Subtenant in writing the manner in which it has established such Subtenant's contribution and the basis therefor. Each Subtenant shall have the right to review the invoices, paid receipts and other supporting documentation for the costs and expenses for which it is being assessed by the Association for a period of ninety (90) days following the date such Subtenant is notified of such Subtenant's contribution; provided that said ninety (90) day period shall extend one day for each day during which the CITY or the AUTHORITY (as applicable) fails to provide or denies access to the supporting documentation required hereunder. Each Subtenant shall also be entitled to obtain full disclosure of the sources of funding and their anticipated disposition each year prior to the establishment of an assessment or contribution amount which will affect such Subtenant. ARTICLE XXV MISCELLANEOUS Section 25.1 Section Captions. The captions appearing in this Interlocal Agreement are for convenience only and shall in no way define, amplify, limit or describe the scope or intent of this Interlocal Agreement or any part thereof. {M1851456;13} 51 03- 206 Section 25.2 Other Documents. The CITY and the AUTHORITY shall take all such actions and execute all such documents which may be reasonably necessary to carry out the purposes of this Interlocal Agreement, whether or not specifically provided for in this Interlocal Agreement. Section 25.3 Counterparts. This Interlocal Agreement may be executed and delivered in two counterparts, each of which shall be deemed to be an original and both of which, taken together, shall be deemed to be one Interlocal Agreement. Section 25.4 Entire Aareement. This Interlocal Agreement, and the documents which are Exhibits to this Interlocal Agreement contain the sole and entire agreements entered into by the Parties with respect to their subject matter, and supersede any and all other prior written, or oral agreements between them with respect to such subject matter. Section 25.5 Severabilitv. If any term, or provision of this Interlocal Agreement, or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Interlocal Agreement or the application of such term or provision to the persons or circumstance other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Interlocal Agreement shall be valid and be enforced to the fullest extent permitted by law. Section 25.6 Recording, Documentary Stamps. The Parties hereby agree to execute the Memorandum of Amended and Restated Interlocal Agreement attached hereto as Exhibit "D", and have it properly acknowledged for the (M1851456;13) 52 03 206 purpose of recording in the Public Records of Miami -Dade County, Florida. Such memorandum shall have included therein such of the provisions hereof as may be requested by either of the Parties. The cost of any such recordation, cost of any State of Florida documentary stamps which legally must be attached to any or all of said papers, and the cost of the applicable Miami - Dade County and State transfer tax shall be paid in full by the AUTHORITY. Section 25.7 Approvals and Consents. Wherever in this Interlocal Agreement the approval or consent of any party is required, it is understood and agreed that such approval or consent will not be unreasonably withheld, delayed or conditioned, unless the context specifically indicates otherwise. Section 25.8 Governing Law. This Interlocal Agreement shall be governed by the laws of the State of Florida. This Interlocal Agreement is subject to and shall be interpreted to effectuate its compliance with the Charter of the City of Miami. Section 25.9 Amendments. No amendment may be made to this Interlocal Agreement unless authorized by the City Manager and the AUTHORITY. Any amendment to any substantive provision of this Interlocal Agreement shall be subject to the prior approval of the City Commission if the City Attorney of the City of Miami determines, in his or her sole discretion, that such prior approval is required. Section 25.10 Waiver of Jury Trial. THE PARTIES HEREBY WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST THE OTHER ON, OR IN RESPECT OF, ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS INTERLOCAL W1851456J3► 53 03-- 206 AGREEMENT, THE RELATIONSHIP OF LANDLORD AND TENANT HEREUNDER, THE AUTHORITY'S USE OR OCCUPANCY OF THE PROPERTY AND/OR ANY CLAIM OF INJURY OR DAMAGE. Section 25.11 (Quiet Enjoyment. If the AUTHORITY pays the rents (if any) and other amounts due under this Interlocal Agreement, observes and performs all the terms, covenants and conditions hereof, the AUTHORITY shall peaceably and quietly hold and enjoy the Property for the Term, without interruption by the CITY, subject to the terms and conditions of this Interlocal Agreement. Section 25.12 Surrender of Possession. Upon the expiration or earlier termination of the Interlocal Agreement pursuant to the provisions hereof, the AUTHORITY shall deliver to the CITY possession of the Property in good repair and condition, reasonable wear and tear excepted. Section 25.13 Attorneys' Fees. In the event that legal action is taken by either Party to enforce any of the provisions of this Interlocal Agreement, the prevailing Party shall be entitled to reasonable attorneys' fees in connection with any such action. Section 25.14 Brokerage. Each Party (a) warrants to the other Party that it has had no dealings with any broker or agent in connection with this Interlocal Agreement, and (b) covenants to pay, hold harmless and indemnify the other party from and against any and all costs (including reasonable attorneys' fees), expense or liability for any compensation, commissions and charges claimed by any broker or agent with respect to this Interlocal Agreement or the negotiation thereof on behalf or on account of such indemnifying party; provided, however, that the Parties' indemnification (M1851456;13) 54 03- 206 obligations hereunder are limited as provided in Section 786.28, Florida Statutes, as amended from time to time, and the provisions of Section 9.2(b) hereof. Section 25.15 Affirmative Action. The AUTHORITY shall have in place an Affirmative Action/Equal Employment Opportunity Policy and shall institute a plan for its achievement which will require that the AUTHORITY comply with applicable law in providing equal opportunity in hiring and promoting of women, minorities, individuals with disabilities, and veterans. Such plan will include a set of positive measures which will be taken to insure nondiscrimination in the work place as it relates to hiring, firing, training and promotion. In lieu of such a plan, the AUTHORITY shall submit a Statement of Assurance indicating that its business is in compliance with all relevant civil rights laws and regulations. Section 25.16 Nondiscrimination. The AUTHORITY agrees that it will comply with all federal, state and local laws with respect to discrimination against any person based upon race, religion, color, sex, ancestry, age, national origin, marital status, or mental or physical handicap, in the use of the Property. Section 25.17 Radon. As required by Florida Statutes, Section 404.056(8), the following notice is given to the AUTHORITY: Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in sufficient quantities, may present health risks to persons who are exposed to it over time. Levels of radon that exceed federal and state guidelines have been found in buildings in Florida. Additional information regarding radon and radon testing may be obtained from your County Public Health Unit. { MI851456;13 } 55 03- 206 ARTICLE XXVI NO PERSONAL LIABILITY Section 26.1 Protection From Personal Liability. No obligation or liability of any kind or nature whatsoever incurred by or asserted against the AUTHORITY or the CITY in connection with this Interlocal Agreement, or arising out of the Parties' actions in connection therewith, shall in any manner whatsoever be a personal obligation or liability of any member of the board or employee of the AUTHORITY or any elected or appointed official or employee of the CITY. [Signatures on next page] { MI851456;13 } 56 a- 206 IN WITNESS WHEREOF, the parties have executed this Interlocal Agreement in Miami, Florida on the day and year first above written. ATTEST: By: City Clerk ATTEST: By: APPROVED AS TO INSURANCE REQUIREMENTS: Risk Management Department (M1851456;13) CITY OF MIAMI, a municipal corporation of the State of Florida City Manager MIAMI SPORTS AND EXHIBITION AUTHORITY IM APPROVED AS TO FORM AND CORRECTNESS: 57 City Attorney 03- 206 AMENDED AND RESTATED SUBLEASE AND OPERATING AGREEMENT BETWEEN THE MIAMI SPORTS AND EXHIBITION AUTHORITY GREATER MIAMI CONVENTION AND VISITORS BUREAU DATED: 92003 03- 206 TABLE OF CONTENTS ARTICLE I. EXHIBITS AND DEFINITIONS................................................................2 Section 1.1 Defined Terms; Singular, Plural And Gender............................................2 Section 1.2 Incorporation of Exhibits.........................................................................11 ARTICLE II. DESCRIPTION AND TERM..................................................................11 Section 2.1 Description of Subleased Premises..........................................................1 l Section2.2 Parking.....................................................................................................12 Section2.3 Common Areas........................................................................................13 Section2.4 Term of Sublease.....................................................................................13 Section 2.5 Extension of Sublease Term....................................................................13 Section 2.6 Easements; Roadways..............................................................................15 Section 2.7 Easement for Development of Other Areas of Watson Island.................15 Section 2.8 Use of Observation Deck......................................................................... 16 Section 2.9 Aviation -Related Equipment...................................................................18 Section 2.10 VIP Conference Center..........................................................................18 ARTICLE III. PURPOSE OF USE AND OCCUPANCY.............................................18 Section3.1 Use of Building........................................................................................18 Section 3.2 Continuous Duty to Operate....................................................................19 ARTICLE IV. BUILDING SERVICES.........................................................................19 Section 4.1 Authority's Building Services..................................................................19 Section 4.2 Authority's Building Repairs...................................................................20 Section 4.3 Cost for Building Services and Repairs...................................................21 Section 4.4 Subtenants' Services................................................................................21 Section 4.5 City and Authority Not Liable for Failure of Utilities .............................22 ARTICLE V. AIR TRANSPORTATION FACILITY SERVICES...............................22 Section 5.1 Maintenance Obligations.........................................................................22 Section 5.2 Authority's Management Obligations......................................................23 ARTICLE VI. CONSIDERATION................................................................................23 Section 6.1 Base Monthly Rent; Press Center Rent....................................................23 Section 6.2 Bureau's Share of Direct Airport O&M Expenses..................................25 Section 6.3 Security Deposit.......................................................................................29 Section 6.4 Additional Rent........................................................................................29 Section 6.5 Interest on Late Payments........................................................................29 Section 6.6 Place of Payment......................................................................................29 Section 6.7 Impositions or Payments in Lieu of Taxes..............................................29 Section 6.8 Shortfall Reserve......................................................................................30 Section 6.9 Airport Revenue Fund..............................................................................31 Section 6.10 Payments by Other Subtenants..............................................................31 Section 6.11 No Double Charge.................................................................................31 ARTICLE VII. HAZARDOUS MATERIALS...............................................................32 iJ3- 206 Section 7.1 Handling of Hazardous Materials............................................................32 Section 7.2 Indemnification........................................................................................33 Section 7.3 Disclosure, Warning and Notice Obligations..........................................33 Section 7.4 Environmental Tests and Audits..............................................................34 Section 7.5 Survival of Bureau's Obligations.............................................................34 ARTICLE VIII. LICENSES; COMPLIANCE WITH LAWS.......................................34 Section 8.1 Licenses and Permits................................................................................34 Section 8.2 Compliance with Laws............................................................................34 ARTICLE IX. ALTERATION OF PREMISES.............................................................34 Section 9.1 Change/Alterations..................................................................................34 Section 9.2 Manner of Construction...........................................................................35 Section 9.3 Mechanics' Liens.....................................................................................35 Section 9.4 Changes and Additions to Air Transportation Facility ............................37 ARTICLE X. AUTHORITY'S INSPECTION AND RIGHT OF ENTRY ...................38 Section 10.1 Inspection by Authority.........................................................................38 Section 10.2 Authority's Right of Entry.....................................................................38 ARTICLE XI. INDEMNIFICATION AND INSURANCE...........................................38 Section 11.1 Indemnification......................................................................................38 Section 11.2 Bureau's Insurance.................................................................................39 Section 11.3 Authority's Insurance.............................................................................41 Section 11.4 Waiver of Subrogation...........................................................................42 Section 11.5 No Liability of Authority or City...........................................................43 ARTICLE XII. DAMAGE AND DESTRUCTION.......................................................43 Section 12.1 Destruction of Subleased Premises........................................................43 Section 12.2 Authority's Option to Terminate Lease.................................................44 Section 12.3 Demolition of Building..........................................................................45 Section 12.4 Insurance Proceeds.................................................................................45 ARTICLE XIII. BUILDING NAME..............................................................................46 Section 13.1 Name of Building...................................................................................46 ARTICLE XIV. EMINENT DOMAIN..........................................................................47 Section 14.1 Eminent Domain....................................................................................47 Section 14.2 Condemnation Awards...........................................................................48 ARTICLE XV. ASSIGNMENTS AND SUBLETTING................................................48 Section 15.1 Assignment and Subletting....................................................................48 Section 15.2 Procedure for Transfer...........................................................................49 Section 15.3 Acceptance of Rent from Transferee.....................................................50 Section 15.4 Adjustment to Rents as a Result of a Transfer.......................................50 Section 15.5 No Release of Bureau............................................................................51 Section 15.6 Event of Bankruptcy..............................................................................51 ii 03- 206 ARTICLE XVI. OWNERSHIP OF IMPROVEMENTS................................................51 Section 16.1 Ownership of Improvements..................................................................51 ARTICLEXVII. SIGNAGE...........................................................................................52 Section17.1 Signs.......................................................................................................52 Section 17.2 Watson Island Signage System..............................................................53 Section 17.3 Pre -Commencement Date Signage........................................................54 Section 17.4 Watson Island Association.....................................................................54 ARTICLE XVIII. RIGHT TO TERMINATE................................................................55 Section 18.1 Right to Terminate.................................................................................55 ARTICLE XIX. DEFAULT PROVISIONS...................................................................55 Section 19.1 Events of Default - Bureau....................................................................55 Section 19.2 Events of Default - Authority................................................................59 Section19.3 Mitigation...............................................................................................61 ARTICLEXX. NOTICES..............................................................................................61 Section20.1 Notice.....................................................................................................61 ARTICLEXXI...................................................................................................................63 QUIETENJOYMENT.......................................................................................................63 Section 21.1 Quiet Enjoyment....................................................................................63 ARTICLE XXII. ESTOPPEL CERTIFICATES............................................................63 Section 22.1 Estoppel Certificates..............................................................................63 ARTICLE XXIII. REMEDIES CUMULATIVE...........................................................63 Section 23.1 Remedies Cumulative............................................................................63 Section 23.2 Waiver of Remedies Not To Be Inferred...............................................64 ARTICLE XXIV. SURRENDER AND HOLDING OVER..........................................64 Section 24.1 Surrender at End of Term......................................................................64 Section 24.2 Rights Upon Holding Over....................................................................64 ARTICLE XXV. MISCELLANEOUS PROVISIONS..................................................65 Section 25.1 Ingress and Egress..................................................................................65 Section 25.2 Successors and Assigns..........................................................................65 Section 25.3 Assignability and Binding Effects.........................................................65 Section25.4 Amendments..........................................................................................65 Section 25.5 Award of Agreement..............................................................................65 Section25.6 Brokerage...............................................................................................66 Section 25.7 Interlocal Agreement.............................................................................66 Section 25.8 Construction of Agreement....................................................................66 Section 25.9 Attorney's Fees and Expenses...............................................................66 Section 25.10 Waiver of Jury Trial.............................................................................67 Section25.11 Jurisdiction...........................................................................................67 iii �J3- 206 Section25.12 Severability..........................................................................................67 Section 25.13 Time of Essence as to Covenants of Sublease.....................................67 Section25.14 Captions...............................................................................................67 Section 25.15 Conditions and Covenants...................................................................67 Section 25.16 Bureau Obligations Survive Termination............................................68 Section25.17 Radon...................................................................................................68 Section 25.18 Recording; Documentary Stamps........................................................68 Section 25.19 Duplicate Originals..............................................................................68 Section 25.20 Third Party Beneficiaries.....................................................................68 Section 25.21 Non -disturbance and Attornment/City.................................................68 Section 25.22 Provisions not Merged with Deed........................................................69 Section 25.23 Approvals and Consents......................................................................69 Section25.24 Exculpation..........................................................................................69 Section 25.25 Entire Agreement.................................................................................69 ARTICLE XXVI. RIGHT OF FIRST OFFER...............................................................70 Section 26.1 Right of First Offer................................................................................70 ARTICLE XXVII. AFFIRMATIVE ACTION..............................................................71 Section 27.1 Affirmative Action.................................................................................71 Section 27.2 Nondiscrimination..................................................................................71 EXHIBITS Exhibit A Legal Description of the Property Exhibit B Airport O&M Expense Rent Budget Exhibit C Memorandum of Amended and Restated Sublease and Operating Agreement Exhibit D City's Occupancy Agreement for the Press Center and VIP Conference Center 1V iJ3- 206 AMENDED AND RESTATED SUBLEASE AND OPERATING AGREEMENT This Amended and Restated Sublease and Operating Agreement (the "Sublease" or "Sublease Agreement"), is made and entered into this _ day of , 2003, by and between THE MIAMI SPORTS AND EXHIBITION AUTHORITY, an independent and autonomous agency and instrumentality of the City of Miami ("Authority'), and THE GREATER MIAMI CONVENTION AND VISITORS BUREAU, a Florida not-for-profit corporation ("Bureau'). STATEMENT OF BACKGROUND AND PURPOSE 1) The City of Miami (the "City") and Authority entered into that certain Interlocal Agreement dated as of the 14'h day of August, 1997 (the "Original Interlocal Agreement"), whereby the City leased to Authority a portion of Watson Island for the development, construction, management and operation of an Air Transportation Facility (the "Air Transportation Facility'), including a regional visitors center, aviation museum, exhibition halls, parking areas and other related facilities and improvements ancillary to the operation of the Air Transportation Facility (collectively, the "Project"); 2) The Original Interlocal Agreement contemplated the active participation of Bureau in the Project and was contingent upon Authority and Bureau entering into a mutually acceptable sublease agreement, which Sublease and Operating Agreement was executed by the parties on November 3, 1997 (the "Original Sublease Agreement"); 3) Pursuant to the Original Interlocal Agreement and the Original Sublease Agreement, the City, Authority and Bureau entered into a Funding Agreement dated November 3, 1997 (the "Original Funding Agreement"), which established, inter alfa, the obligations of the parties with respect to the construction, development and funding of the Project; 4) Since the execution of the Original Interlocal Agreement, the Original Sublease Agreement and the Original Funding Agreement, there have been significant changes to the Project and the City, Authority and Bureau have reached additional agreements that are reflected in the Amended and Restated Interlocal Agreement sJ3— 206 of even date herewith (the "Interlocal Agreement'), the Amended and Restated Funding and Development Agreement of even date herewith (the "Development Agreement"), and this Sublease; 5) The parties have agreed that it is in the best interest of the Project for Bureau to construct the Project pursuant to the terms of and as provided in the Development Agreement, and Bureau has committed (i) to contribute Seven Million Dollars ($7,000,000.00) for the construction of the Project (if needed pursuant to the terms of the Development Agreement), of which Three Million Eight Hundred Thousand ($3,800,000.00) will be funded through a Convention Development Tax Grant issued by Miami -Dade County, Florida, a political subdivision of the State of Florida, and (ii) to assume the associated liability for cost overruns, as more particularly described in the Development Agreement; and 6) Bureau desires to lease from Authority a portion of the Building for the operation of a regional visitor's center and Bureau's administrative offices, and Authority desires to sublease to Bureau a portion of the Building for such purposes. NOW, THEREFORE, in consideration of the foregoing and of the rent, covenants, and agreements hereinafter set forth, the parties do hereby covenant and agree that the Original Sublease Agreement is in full force and effect, and is amended and restated in its entirety as follows: ARTICLE I. EXHIBITS AND DEFINITIONS Section 1.1 Defined Terms; Singular, Plural And Gender. (a) Terms which have initial capital letters and are not otherwise defined in this Sublease shall have the meaning set forth in the Interlocal Agreement. (b) Any word contained in the text of this Sublease shall be read as the singular or the plural, and as the masculine, feminine or neuter gender as may be applicable in the particular context. More specifically, however, for the purposes of this Sublease the following words shall have the meanings attributed to them in this Section: "Adequate Assurances" shall have the meaning ascribed to it in Section 19.1. "Additional Rent" shall have the meaning ascribed to it in Section 6.4. "Airport O&M Expense Rent" has the meaning ascribed to it in Section 6.2. 2 il3- 206 "Airport O&M Expense Statement" has the meaning ascribed to it in Section 6.2. "Airport Revenue" or "Airport Revenues" has the meaning specified in the Interlocal Agreement. "Air Transportation Facility" means all the facilities which are to be developed, operated and managed at the Property as more particularly described in the Interlocal Agreement, including but not limited to the Airside Area, the Building and the parking area depicted in the Conceptual Site Plan. "Airside Area" means approximately 3.75 acres located within the Property to be utilized to provide seaplane and helicopter services and containing seaplane ramp(s), helipad(s), taxiways, runways, navigational aids, lighting facilities, public aprons and such other facilities as may be incidental to the operation of an airport/heliport. "All Direct O&M Expenses" shall mean Building O&M Expenses and Direct Airport O&M Expenses, collectively. "Alterations" means any alterations to the Subleased Premises performed by Bureau pursuant to Section 9.1 of this Sublease and includes Major Alterations. "Association" has the meaning ascribed to it in Section 17.4. "Authority" has the meaning ascribed to it in the opening paragraph of this Sublease as well as Authority's successors and/or assigns. "Aviation Museum" means the aviation museum located on the first floor of the Building within the Visitors Center. "Base Monthly Rent" means the minimum rent to be paid as set forth in Section 6.1. "Bankruptcy" means the United States Bankruptcy Code, 11 U.S.C. §§101 et seq, and any modifications thereof and successors thereto. "Building" shall mean the structure containing approximately forty-five thousand (45,000) square feet to be constructed upon the Property which will house the Visitors Center, the Aviation Museum, the Offices, food service areas, the City's Press Center, the VIP Conference Center, the terminal facilities and the Federal Inspection Services areas. "Building O&M Expenses" shall mean any and all costs and expenses paid or incurred by Authority, its representative or designee, in connection with the operation, maintenance, management and repair of the Building and the Common Areas of the Building as outlined in Sections 4.1 and 4.2. By way of illustration but not limitation, Building O&M Expenses shall 3 03- 206 include costs and expenses for electricity, water, air conditioning, pest control, trash removal, maintenance, repairs and supplies (except as specifically excluded in Section 4.4 herein), elevator maintenance and janitorial services for the Federal Inspection Services areas. "Bureau" has the meaning ascribed to it in the opening paragraph of this Sublease as well as the Bureau's successors and/or assigns. "Bureau's Construction Contribution" means Seven Million Dollars ($7,000,000.00) (if needed pursuant to the terms of the Development Agreement), of which Three Million Eight Hundred Thousand Dollars ($3,800,000.00) will be funded through a Convention Development Tax Grant issued by Miami -Dade County, Florida, a political subdivision of the State of Florida, plus any other sums funded by the Bureau for Project costs pursuant to the Development Agreement to cover cost overruns or otherwise. Bureau's Construction Contribution shall be funded as provided in the Development Agreement. "Bureau's Percentage Share" shall be equal to a percentage which shall be determined by a fraction, the numerator of which is the square footage of the Subleased Premises, and the denominator of which is the total Rentable Square Feet of the Building. Bureau's exact percentage share shall be determined by the Project architect after completion of construction of the Building in accordance with Section 2.1. "Business Days" means Monday through Friday excluding legal holidays. "Business Hours" shall mean, for the Offices, 8:30 AM to 5:30 PM on Business Days, and for the Visitors Center and Aviation Museum, 8:30 AM to 5:00 PM Monday through Sunday (or other customary hours of operation for similar facilities). Bureau may modify the Business Hours for the Subleased Premises upon written notice to Authority. "Casualty" shall have the meaning given to it in Section 12.1. "City" means the City of Miami, a municipal corporation of the State of Florida. "Commencement Date" means (a) the date on which Bureau takes possession or commences use of the Subleased Premises, or (b) the date that the final certificate of occupancy for the Subleased Premises is issued, whichever occurs first. "Common Areas" means the total of all areas which now or at any time hereafter, based on Authority's sole but reasonable discretion, are within or part of the Air Transportation Facility and made available for the general nonexclusive use, convenience or benefit of Authority, Bureau and all other Subtenants of the Air Transportation Facility and their respective employees 4 93- 206 and invitees, including, without limitation, all lobbies, entrances, stairs, elevators, escalators, hallways, passageways and other interior public portions of the Air Transportation Facility which are not specifically occupied by Bureau or by any other Subtenant of the Air Transportation Facility, and all exterior walkways, landscaped areas, driveways, open space areas, rooftop, Observation Deck (subject to the terms of Section 2.8), landing and takeoff areas, taxiway areas for aircraft, ramp areas, aircraft parking areas and facilities, parking lots and parking facilities within the Property. Common Areas shall not include any areas outside the boundaries of the Property. "Conceptual Site Plan" means the Conceptual Site Plan attached to the Development Agreement as Exhibit B. "CPI" means the Consumer Price Index, U.S. City Average for All Items for All Urban Consumers (1982-1984 = 100) published in the Monthly Labor Review of Bureau of Labor Statistics of the United States Department of Labor. "Deed Restrictions" shall mean those certain restrictions contained in Deed No. 19447 made by the Trustees of the Internal Improvement Fund of the State of Florida to the City dated February 24, 1949 and recorded in Deed Book 3130, Page 2157 of the Public Records of Miami - Dade County, Florida. "Direct Airport O&M Expenses" shall mean any and all costs and expenses paid or incurred by Authority, its representative or designee, in connection with the operation, maintenance, management and repair of the Air Transportation Facility. By way of illustration but not limitation, Direct Airport O&M Expenses shall include the following: insurance premiums paid by Authority for the insurance policies required to be maintained by Authority under the Interlocal Agreement and (to the extent paid or required to be paid) deductibles; water, sewer and all other utility charges (other than with respect to utilities separately metered and paid directly by Bureau or other Subtenants); janitorial and all other cleaning services (except to the extent such janitorial and cleaning services is provided by a Subtenant of the Property); Impositions; refurbishing and repainting; air conditioning, heating and elevator service; pest control; resurfacing; lighting systems, fire detection and security services; landscape maintenance (except to the extent such landscape maintenance is provided by a Subtenant of the Property); airport management (fees and/or personnel costs) and maintenance staff, road, sidewalk, apron, helipad(s), ramp(s) and driveway maintenance; annual reserves for capital 5 03- 206 replacement based on the estimated cost and remaining useful life of such capital items, as reasonably determined by Authority's competent third party consultant; the amortized costs over the expected useful life (as reasonably determined by Authority's competent third party consultant) to repair, maintain, replace and install capital improvements as Authority may in the future install to comply with governmental regulations and rules or undertaken in good faith with a reasonable expectation of reducing operating costs; fees for required licenses and permits, fees, charges and other costs necessary for the management, administration and operation of the Air Transportation Facility; and costs of legal services (except those incurred directly relating to a particular occupant of the Air Transportation Facility), accounting services, labor, supplies, materials and tools. The third party consultant selected by the Authority to determine the annual reserves for capital replacement shall be subject to the prior approval of Bureau, which shall not be unreasonably withheld. All Direct Airport O&M Expenses shall not include: Authority's income tax or general corporate overhead; capital improvements or replacement of any equipment or component which would be considered a capital expense, except as specifically provided above; depreciation on the building(s) or equipment therein; loan payments; real estate broker's commissions; training costs; tenant improvements; exterior grounds maintenance (to the extent such grounds maintenance is provided by a Subtenant of the Property); management fees or administrative costs (other than management and maintenance personnel costs as provided above); or charges for utilities of any kind (including without limitation water, sewer and electricity) provided to the Airside Area. "Entry Road' shall mean the main Entry Road providing legal access from MacArthur Causeway to the Property in the location depicted on the Conceptual Site Plan. "Event of Authority's Default" has the meaning ascribed to it in Section 19.2. "Event of Bureau's Default" has the meaning ascribed to it in Section 19.1. "Existing Subleases" means the Air Terminal Facility Sublease dated March 6, 2002 by and between Authority and Flying Boat, Inc. (d/b/a Chalks Ocean Airways) ("Chalks'), and the Food and Beverage Facility Sublease dated March 6, 2002 by and between Authority and Bimini Landing, Inc. ("Bimini Landing'), both for use of portions of the Air Trasportation Facility. "Expense Year" means each twelve (12) consecutive month period commencing on the Commencement Date, provided that Authority, upon notice to Bureau, may change the Expense Year from time to time from and after the third anniversary of the Commencement Date to any 6 03- 206 other twelve (12) consecutive month period, and, in the event of any such change, the Airport O&M Expense Rent and Bureau's cap on such expenses shall be equitably adjusted for any Expense Year involved in any such change. For purposes of this Sublease, the Parties agree that, if Commencement Date falls on a day other than the first day of a calendar month, then (i) the first Expense Year shall include such partial month plus the succeeding twelve (12) consecutive month period, (ii) each succeeding Expense Year shall be a twelve (12) consecutive month period immediately following the expiration of the immediately preceding Expense Year, and (iii) the last Expense Year shall be a partial Expense Year ending on the last day of the Term, as same may be extended. "Expense Year Anniversary" is the first day of the second Expense Year and of each Expense Year thereafter. "Extension Terms" has the meaning ascribed to it in Section 2.5. "Fair Market Rent" means the amount that shall be used to determine the Base Monthly Rent as calculated by an independent MAI appraiser. "FDOT" means State of Florida Department of Transportation, an agency of the State of Florida. "Federal Inspection Services" means the services provided by United States departments of Customs, Immigration and Naturalization Services, and Agriculture to the Airside Area. "First Extension Term" has the meaning ascribed to it in Section 2.5. "Hazardous Materials" has the meaning ascribed to it in Section 7.1. "Hazardous Materials Laws" has the meaning ascribed to it in Section 7.1. "Impositions" means all governmental assessments, including assessments imposed by the City in a uniform manner on all affected properties or taxpayers, franchise fees, excises, municipal service fees, fire service fees, levies, charges and taxes, including ad valorem real estate taxes and any other tax or assessment, general and special, ordinary and extraordinary, foreseen or unforeseen, or of any kind and nature whatsoever, and which shall or may, during the Term, be assessed, levied, charged, confirmed, or imposed upon, or become due and payable out of, or become a lien on the Air Transportation Facility, the Property and/or improvements thereon, or appurtenances or facilities used in connection therewith, and/or Bureau's leasehold estate. 7 iJ3- 206 Impositions shall specifically exclude any rent tax, gross receipts tax, sales or transactions tax, profits tax, income tax, franchise tax, excise tax, gift tax, transfer tax, any late payment charge or penalty, any impact fees or any tax against the Air Transportation Facility that is paid by Bureau as a separate charge pursuant to this Sublease. Notwithstanding the foregoing exclusions, if at any time during the Term the present method of taxation or assessment shall be changed so that the whole or any part of taxes, assessments, excises, levies or other charges now assessed, levied, charged, confirmed or imposed upon the Subleased Premises, the Air Transportation Facility, the Property, or appurtenances or facilities thereto shall be discontinued or reduced and as substitute therefor or in lieu thereof, a tax, assessment excise, levy or other charge shall be assessed, levied, charged, confirmed or imposed, whether wholly or partially as a special assessment or otherwise on rents, income, profits, sales or gross received derived from the Air Transportation Facility, then the substitute tax, assessment, excise, levy or other charge shall be deemed included within the term "Impositions" to the extent that such substitute tax would be payable if the Subleased Premises were the only property of Authority subject to such tax. "Indirect O&M Expenses" shall mean the payment of Impositions and PILOT pursuant to the terms hereof. "Initial Budgeted PILOT Amount" shall have the meaning given to it in Section 6.2. "JPAs" mean, collectively, the two (2) Joint Participation Agreements between FDOT and the City; one for the Master Plan Study dated June 4, 1993, as supplemented by Supplemental Joint Participation Agreements dated October 14, 1994 and April 8, 1996, and one for the construction of the Project dated January 12, 1999, as supplemented by Supplemental Joint Participation Agreement dated May 17, 2002. "Lep,al Requirements" or "Applicable Law" means applicable laws, Florida Statutes, codes, City and Miami -Dade County ordinances, orders, judgments, decrees and injunctions from courts having jurisdiction over the Air Transportation Facility, rules, and requirements of State and local boards and agencies with jurisdiction over the Air Transportation Facility, now existing or hereafter enacted, adopted, foreseen and unforeseen, ordinary and extraordinary, which may be applicable to the Air Transportation Facility or any part of it, the Deed Restrictions and the requirements and restrictions relating to the use of the Air Transportation Facility imposed by the JPAs. 8 si3— 206 "Maior Alterations" has the meaning ascribed to it in Section 9.1. "Observation Deck" has the meaning ascribed to it in Section 2.8. "Occupancy Agreements" means all subleases, licenses, concessions or other agreements by which Authority demises, leases, subleases, licenses or sublicenses to or permits the use or occupancy by another person or entity of any part of the Property, including this Sublease and the Existing Subleases. "Offices" shall mean the approximately 27,586.7 square feet of office space used exclusively by Bureau. The actual square footage of the Offices shall be calculated after completion of construction by the Project architect in accordance with Section 2.1. The Offices shall include all lobby space, hallways, restrooms, vertical penetrations for mechanical equipment, and areas occupied by utilities, stairs and elevators on those floor(s) where the Offices are the only use. "Parties" means Authority and Bureau. "Person" means any natural person, trust, firm, partnership, corporation, joint venture, association, or any other legal or business entity investment enterprise. "Personal Property" means all property owned and used by Bureau or any Sub -subtenant or transferee of Bureau, in connection with and located upon the Subleased Premises, subject to rights of any secured party or title retention agreement of a third party. "PILOT" shall have the meaning given to it in Section 6.7. "PILOT Net Proceeds" means the balance of the PILOT due by the Authority to the City after payment of Press Center Rent. "Possession Date" means the date in which Bureau takes possession of the Air Transportation Facility for construction under the Development Agreement. "Press Center" shall mean the City's international press center consisting of approximately 1198 square feet located on the first floor of the Building to be leased by the City from Authority, and used and operated exclusively by the City, as more particularly depicted in the Design Development Plans. "Press Center Rent" has the meaning ascribed to it in Section 6.1. "Press Center Sublease" has the meaning ascribed to it in Section 6.1. "Prime Interest Rate" means that per annum rate of interest charged by Wachovia Bank, National Association (or if this bank is not in existence or making loans at the Prime Interest 9 03- 206 Rate, then the Prime Interest Rate shall be that rate so charged by the bank located in Miami - Dade County having the largest net worth at the applicable time) from time to time on ninety (90) day commercial loans to its most creditworthy corporate borrowers. "Property" means the approximately 5.6 acre parcel of real property located within Watson Island in the City of Miami, Florida, on which the Air Transportation Facility will be constructed, which is legally described in Exhibit A to this Sublease. "Rent" shall mean the Base Monthly Rent, Airport O&M Expense Rent, Press Center Rent, Additional Rent and any other amounts Bureau is required to pay under this Sublease. "Rentable Square Feet" means, with respect to the Building, approximately 36,901.8 square feet, which is the estimated total square footage available for lease within the Building and excludes the total square footage in the Building occupied by the Federal Inspection Services. "Right of First Offer" has the meaning ascribed to it in Section 26.1. "Right of First Offer Space" has the meaning ascribed to it in Section 26.1. "Second Extension Term" has the meaning ascribed to it in Section 2.5. "Section", "subsection", "paragraph", "subparagraph", "clause", or "subclause" followed by a number or letter means the section, subsection, paragraph, subparagraph, clause or subclause of this Sublease Agreement so designated, unless otherwise indicated. "Shortfall" has the meaning ascribed to it in the Interlocal Agreement. "Shortfall Reserve" has the meaning ascribed to it in Section 6.8. "Sublease Date" means November 3, 1997, the date of the Original Sublease Agreement, which is being amended and restated in its entirety herein. "Subleased Premises" shall mean the Visitors Center, Aviation Museum and Offices within the Building occupied exclusively by Bureau, together with the associated parking area(s) described in Section 2.2. "Sublease Year" shall mean any period of time consisting of twelve (12) consecutive calendar months commencing on the Commencement Date and each anniversary thereafter during the Term. "Sub -sublease" means any sublease (excluding this Sublease), sub -sublease, license, concession or other agreement by which Bureau or any person or other entity claiming under Bureau (including, without limitation, a Sub -subtenant or sublicensee) demises, leases, 10 93- 206 subleases, licenses or sublicenses to or permits the use or occupancy by another person or entity of any part of the Subleased Premises. "Sub -subtenant" means any person, firm, corporation or other legal entity using or occupying or entitled to use or occupy any part of the Subleased Premises under a Sub -sublease. "Subtenant" means all parties using or occupying any portion of the Property under an Occupancy Agreement. "Term" has the meaning ascribed to it in Section 2.4 and shall include any duly exercised Extension Term(s) as the context requires. "Third Party Users" has the meaning ascribed to it in Section 2.8(c). "Transfer" has the meaning ascribed to it in Section 15.1. "Transferee" has the meaning ascribed to it in Section 15.1. "VIP Conference Center" means the City's VIP Conference Center consisting of approximately 478 square feet located on the first floor of the Building to be leased by the City from Authority under the lease for the Press Center, and used by the City, provided that when the VIP Conference Center is not in use by the City, Bureau shall have the right to use same as more particularly described herein. "Visitors Center" means Bureau's visitors' information center consisting of approximately square feet located within the first floor of the Building, which includes the Aviation Museum. Section 1.2 Incorporation of Exhibits. All exhibits referenced in or attached to this Sublease are incorporated herein as if fully set forth in this Sublease. ARTICLE II. DESCRIPTION AND TERM Section 2.1 Description of Subleased Premises. Authority hereby subleases to Bureau, and Bureau hereby subleases from Authority, the Subleased Premises. Authority shall allow Bureau to enter and occupy the Property, subject to the rights of other Subtenants on the Possession Date for the purpose of constructing the Air Transportation Facility in accordance with the Development Agreement. Authority shall transfer possession of the Subleased Premises to Bureau on the Commencement Date. 03-- 206 Upon completion of construction of the Building, Bureau shall direct the Project architect to determine the square footage of the Subleased Premises (including the Offices and Visitors Center), the Press Center and the VIP Conference Center, in each case as actually constructed and certify as to same to the City, Authority and Bureau. If the square footage of the Subleased Premises, Press Center and VIP Conference Center, as determined by the Project architect is greater or less than the approximate amounts specified in the definitions of such areas specified in this Sublease, then such square footage and Rentable Square Feet shall be adjusted to equal the amount as so determined, and the Bureau's Percentage Share and any other amounts specified in this Sublease as a function of square footage of the Subleased Premises or Press Center or VIP Conference Area (including without limitation Rent relating to such areas), shall be adjusted proportionately. If the Rentable Square Feet of the Building as determined by the Project architect is greater or less than the amount specified in the definition of Rentable Square Feet, then the Rentable Square Feet of the Building shall be adjusted to equal the amount as so determined, and the Bureau's Percentage Share and any other amounts specified in this Sublease as a function of Rentable Square Feet of the Building shall be adjusted proportionately. Section 2.2 Parking. Authority further subleases to Bureau and agrees to make available to Bureau at all times after the Commencement Date through the end of the Term for Bureau's exclusive use, (i) five (5) reserved parking spaces adjacent to the Building (depicted as "Area A" in the Conceptual Site Plan), to the extent legally permissible, and (ii) twenty-two (22) reserved parking spaces located within the boundaries of the Property (depicted as "Area B" in the Conceptual Site Plan), to the extent legally permissible. In addition to the foregoing, Authority agrees to provide, or to cause the City to provide, on or adjacent to the Property, surface parking and, when parking volume requires it, in the City's sole opinion, a parking garage facility, in each case with sufficient capacity to serve the needs of the Subtenants, their employees, guests, customers and other invitees. The additional parking area or garage contemplated under this provision shall contain no less than the greater of (a) one hundred forty-one (141) parking spaces, or (b) the number of parking spaces required by law as of the Commencement Date, and shall be available to Bureau and other Subtenants of the Air Transportation Facility from and after the Commencement Date through the end of the Term. The Subtenants shall be responsible for the payment of rates for the use of parking spaces on an "as -used" basis to the City or the parking 12 °J3- 206 facility operator. Rates for the parking spaces shall not exceed the lesser of (i) the then prevailing municipal rates for parking spaces, or (ii) such rates as may be negotiated by Bureau with the City or the parking facility operator, as applicable. Section 2.3 Common Areas. Bureau shall have the nonexclusive right (in common with other Subtenants of the Air Transportation Facility) to use the Common Areas within the Air Transportation Facility for the purposes intended, subject to such reasonable rules and regulations as Authority may establish from time to time, and further subject to the other provisions of this Sublease. Section 2.4 Term of Sublease. This Sublease shall be for a term of thirty (30) years (the "Term"), commencing on the Commencement Date and ending on the date that is thirty (30) years thereafter, subject to extension as provided in Section 2.5 below and to termination at an earlier date pursuant to the terms of this Sublease. As used herein, the term "Term" shall include any Extension Term(s) exercised in accordance with the terms of this Sublease. Within thirty (30) days after the Commencement Date, Authority and Bureau, upon request of either party, shall execute one or more memoranda in such form as will enable them to be recorded among the Public Records of Miami -Dade County, setting forth the beginning and termination dates of the Term. Section 2.5 Extension of Sublease Term. To the extent permitted by law at the time of such action, and provided that (i) there are no material defaults by Bureau hereunder which remain uncured after any required notice and the expiration of any applicable cure period and (ii) during any of the three (3) Sublease Years preceding the Sublease Year when such right is exercised, there have not been more than two (2) material defaults by Bureau hereunder which remained uncured after any required notice and the expiration of any applicable cure period (even if subsequently cured prior to Bureau's exercise of its right to extend), and (iii) the term of the Interlocal Agreement has been extended accordingly, Bureau shall have the right to extend the Term for two successive extension terms of ten (10) years each (the "First Extension Term" and the "Second Extension Term", respectively, and collectively, the "Extension Terms"). Bureau acknowledges that the Interlocal Agreement expires on August 13, 2042, although it may be extended for up to an additional twenty (20) years from such expiration at City's sole and exclusive option upon Authority's request. Accordingly, the Extension Terms may be limited to fewer than ten (10) years unless the City 13 and Authority agree to extend the term of the Interlocal Agreement. If such extension does occur, the First Extension Term or, if applicable, the Second Extension Term shall be the lesser of (a) ten (10) years or (b) the sum of (i) the years remaining in the original term of the Interlocal Agreement after the expiration of the First Extension Term of this Sublease plus (ii) the number of years for which the Interlocal Agreement is extended. In order to exercise its option to extend the Term, Bureau shall give written notice to Authority, with respect to the First Extension Term, no earlier than nine (9) months nor later than six (6) months prior to the expiration of the original Term, or, with respect to the Second Extension Term, no earlier than nine (9) months nor later than six (6) months prior to the expiration of the First Extension Term. The terms and conditions of this Sublease shall continue in effect during the Extension Terms, provided that the Rent payable by Bureau during the first Sublease Year of the First Extension Term shall be an amount equal to the fair market rent for the Subleased Premises without regard to the waterfront location of the Subleased Premises. In no event shall the Rent for any Sublease Year of either Extension Term be less than Bureau's Percentage Share of the annual sum of All Direct O&M Expenses and Indirect O&M Expenses. In no event shall the rent for the Extension Terms be determined by the "highest and best use" of the Property within which the Subleased Premises are located; any alternative or competing use, including, without limitation, seaport facilities, tourist attractions or amusement parks, intensive office development or residential use shall be excluded from consideration when establishing the Rent for the Extension Terms. The Rent established for the first year of the First Extension Term shall be increased annually on the Sublease Year anniversary by the CPI, and shall be calculated by multiplying such Rent by a fraction, the numerator of which is the CPI for the date which is two (2) months prior to the beginning of the Sublease Year for which such adjustment is to be made and the denominator of which is the CPI for the date which is two (2) months prior to the first year of the First Extension Term. Rent for the Second Extension Term, if such extension is elected by Bureau, shall be determined by continuing the foregoing annual CPI adjustments using the first year of the First Extension Term as the base year in the denominator of the fraction. No annual adjustment shall have the effect of increasing annual Rent by less than three (3%) percent or more than five (5%) percent. Fair market rent for the Subleased Premises shall be determined by three (3) MAI real property appraisers, one chosen by Authority, one chosen by Bureau and the third chosen by the first two appraisers. If all three appraisers cannot agree on the fair market rental value of the Subleased 14 0)3- 206 Premises, the average of their three determinations of the fair market rental value shall be accepted for purposes of determining Rent for the Subleased Premises during the first year of the first Extension Term. Each party shall be responsible for its own appraiser's costs and expenses. In the event a third appraiser is needed, the cost of said third appraiser shall be shared equally by Authority and Bureau. Section 2.6 Easements; Roadways. Effective on the Commencement Date, Authority shall be deemed to have granted to Bureau the easements granted by the City to Authority under Article 5 of the Interlocal Agreement and all of Authority's right, title and interest therein, including without limitation an access easement over the Entry Road. With respect to the portion of the roadway shown on the Conceptual Site Plan which intersects the Property and divides the Airside Area and Building from the on-site parking area, Bureau agrees that the City may relocate said roadway from its current location to a mutually acceptable location along the northerly boundary of the on-site parking area with the prior written approval of Bureau, which approval shall not be unreasonably withheld. Section 2.7 Easement for Development of Other Areas of Watson Island. Bureau acknowledges that the City has reserved the right under the Interlocal Agreement to erect, use, maintain and repair water, sanitary sewer and storm water utilities, mechanical and electrical conduits, pipes, and cables in, to, under and through the Property to the extent that the City may now or hereafter deem to be necessary or appropriate for the development of other areas of Watson Island, provided that there is no material interference with the Project or the use and enjoyment of the Property by Authority or Bureau, and the other conditions of Section 5.3 of the Interlocal Agreement are met. Bureau further acknowledges that the City has reserved the right under the Interlocal Agreement to convey, from time to time, such easements as may be necessary for right-of-way, vehicular and pedestrian traffic across or along any or all parts of the Property for the development of other portions of Watson Island, provided that (i) such easements are not located on any areas where any structures or other improvements (other than landscaping, roads or other non -vertical improvements, which the City is obligated, at its expense, to restore, or cause the beneficiary of such easement to restore, to their condition existing immediately prior to the grant of such easement to the extent reasonably feasible taking into consideration the nature of the easement granted, such as, by way of example, a roadway 15 03- 206 over a previously landscaped area) are located; (ii) such easements do not unreasonably interfere in any manner with the operations of, or use and enjoyment of the Property by Authority or Bureau, and (iii) the other conditions of Section 5.3 of the Interlocal Agreement are met. Authority agrees that it shall consult with and obtain the consent of Bureau prior to agreeing with the City as to the location of any such utilities and equipment, the location of any such right-of- way areas and easements, and the form and substance of any easements, which consent shall not be unreasonably withheld or delayed. The City shall use reasonable efforts to cause the beneficiary of the easement to reimburse the Bureau for all costs and expenses it incurs (including, but not limited to, reasonable attorneys' fees and expenses) in connection with the review and negotiation of such easements. Bureau further acknowledges that the City intends to undertake (or cause to be undertaken) further development on Watson Island, all of which may cause some noise and other interference with the Project. By its execution hereof, the City agrees with Bureau that the City shall use best efforts to (and to cause best efforts to be used by other parties undertaking such work to) minimize the interference and disruption by such development on the Project and any operations in the Air Transportation Facility. Section 2.8 Use of Observation Deck. (a) Use by Bureau. Authority hereby grants to Bureau the right and license to use, and to control access to and use of, the observation deck on the rooftop of the Building (the "Observation Deck") for business and social events and functions, meetings and other gatherings, press conferences, exhibitions and other appropriate purposes. Bureau's right to use the Observation Deck shall not be limited to Business Hours, and shall include evening hours and weekends to accommodate any events, functions and other gatherings held by Bureau or any party acting by, through or under Bureau. Although the rooftop and Observation Deck are included in Common Areas, Authority acknowledges that control and use of, and access to, such areas are limited by the terms hereof. All ordinary costs and expenses associated with the maintenance, management and repair of the Observation Deck are included in Building O&M Expenses, provided that any extraordinary expenses of the Observation Deck incurred by reason of Bureau's use thereof hereunder, including without limitation additional security, catering costs, liquor liability insurance (if applicable and on an event basis only) and janitorial clean-up costs (collectively, "Observation Deck Extraordinary Costs"), shall be borne by Bureau. Bureau agrees to leave the Observation Deck in the same condition it was in prior to its use of same. In 16 iJ3-- 206 addition, Bureau shall be responsible for all ordinary janitorial services (including minor plumbing repairs) for the Observation Deck, including any restrooms located thereon. (b) Use by Authority and Subtenants. Bureau agrees that the Observation Deck may be used by the City and Authority (and by others by, through or under either of them), and by other Subtenants of the Property, for events, functions and gatherings, without regard to Business Hours, provided that (i) the use of the Observation Deck by all such parties shall be scheduled with Bureau to avoid conflicts with events and activities scheduled by the Bureau, and (ii) to the extent reasonably feasible, Bureau shall be given five (5) days prior written notice of the proposed date and time for such use of the Observation Deck by such other parties. Each of the City, Authority and the Subtenants shall (i) be responsible for all Observation Deck Extraordinary Costs associated with its use of the Observation Deck (and, with respect to the City and Authority, the use by others by, through or under any of them), (ii) leave the Observation Deck in the same condition it was in prior to such parties' use of same, and (iii) except for the City, carry adequate liability and property insurance coverage naming the City, Authority and Bureau as additional insureds. (c) Third Party Users. Although the City, Authority and Bureau (and any clients, groups, customers, invitees, guests and other parties related to or engaged by any of them), and other Subtenants, shall use the Observation Deck free of charge, Authority shall establish the fees to be charged to any other third party using the Observation Deck (each a "Third Party User"), which fees shall cover such Third Party User's use of the Observation Deck. The Parties agree that all Third Party Users shall be required to execute a license agreement at the time the reservation is made, which shall provide, inter alfa, that the Third Party User shall (i) pay fifty percent (50%) of the fee for such usage at the time the reservation is made, (ii) pay a cash security deposit to provide security for such Third Party User's use of the Observation Deck, including any damage occasioned thereby, and compliance with the terms of the license agreement, (iii) carry adequate liability and property insurance coverage naming the City, Authority and Bureau as additional insureds, and (iv) leave the Observation Deck in the same condition it was in prior to such Third Party User's use of same. The license agreement shall include such other terms and conditions as the Parties may mutually agree. Any fees charged to Third Party Users shall be applied first to the costs and expenses associated with such parties' use of the Observation Deck, including any damage occasioned thereby, with any excess being 17 iJ3- 206 deposited in the Airport Revenue Fund. Bureau agrees to be responsible for enforcement of the terms of the license agreement against a Third Party User. Section 2.9 Aviation -Related Equipment. Bureau acknowledges that Authority has or may grant to other Subtenants the right to install and maintain aviation -related equipment (such as antennas and navigational aids) on the rooftop of the Building, together with the right to access same, provided that Authority shall use commercially reasonable efforts, in light of the use of the Property as an aviation facility, to minimize any interference by such equipment (and access to same) with Bureau's use of the Observation Deck and the rights granted Bureau hereunder, and the impact of such equipment on the aesthetic appearance of the Observation Deck and Building. Authority agrees to enforce the provisions of the Existing Subleases and any other Occupancy Agreements as they relate to aviation -related equipment on the rooftop of the Building. Section 2.10 VIP Conference Center. In consideration of the agreements of Bureau under Section 6.1(b), Bureau shall have the right to use the VIP Conference Center, subject to the terms of the Press Center Sublease, at any time such area is not being used by the City, provided that Bureau coordinates such use with the Building manager to avoid scheduling conflicts with the City. Except for the rent agreed to be paid by Bureau under Section 6.1(b), Bureau shall not be required to pay any rent or other charges for its use of the VIP Conference Center hereunder. Bureau agrees to leave the VIP Conference Center in the same condition it was in prior to its use of same. Because the VIP Conference Center is accessible only through the Visitor's Center, Bureau acknowledges and agrees that the City and Authority and their respective guests and other invitees shall have the right to access the VIP Conference Center through the Visitor's Center. In the event that the VIP Conference Center becomes part of the Subleased Premises pursuant to Section 6.1(b), Bureau shall have the right to exclusive use of same. ARTICLE III. PURPOSE OF USE AND OCCUPANCY Section 3.1 Use of Building. Bureau shall use and operate the Subleased Premises for a Visitors Center, Aviation Museum and Offices, and for all related and ancillary uses in connection therewith, and for any other uses permitted under the Deed Restrictions and the JPAs, subject to the terms of this 18 AJ3- 206 Sublease. The Subleased Premises shall not be used for any other purpose without the prior written consent of Authority, which consent may be withheld in Authority's sole discretion. This Sublease and all rights of Bureau hereunder shall, at the option of Authority, cease and terminate upon discontinuance of the stated use and operation of the Subleased Premises, after having first been given written notice by Authority of the violation and/or default as provided in Section 19.1 and after having first been given the opportunity to cure said violation within the time frame set forth in said Section 19.1. Notwithstanding the foregoing, Bureau agrees that a violation of the Deed Restrictions by Bureau hereunder will result in an automatic termination of this Sublease without the need for notice by Authority or the opportunity to cure. Authority agrees that it shall take no action with regard to the Property that would constitute a violation of the Deed Restrictions. Section 3.2 Continuous Duty to Operate. Except where the Subleased Premises is rendered untenantable by reason of fire or other casualty, Bureau shall (i) occupy the Subleased Premises upon the Commencement Date; (ii) thereafter conduct operations in the Subleased Premises in accordance with the terms of this Sublease and Bureau's customary practices, and (iii) keep the Subleased Premises open for operation during Business Hours in accordance with Bureau's customary practices. Bureau shall have access to the Subleased Premises twenty-four (24) hours per day, seven (7) days per week. ARTICLE IV. BUILDING SERVICES Section 4.1 Authority's Building Services. Authority shall make available, at its sole cost and expense, the following services to the Building (excluding only those services which overlap with and/or are being provided directly by Subtenants under the Occupancy Agreements, including this Sublease and the Existing Subleases), including without limitation Common Areas, consistent with comparable Class A buildings and terminal facilities: (a) heating, ventilation and air conditioning during normal Business Hours; (b) water and sewage facilities; (c) pest control; (d) interior and exterior landscaping; (e) exterior grounds maintenance and cleanup; 19 s)3— 206 (f) security as is required for similar terminal facilities; (g) electric current for normal use and light; (h) janitorial services, including handyman services which shall be able to perform minor plumbing repairs, as are normal and usual in comparable buildings and terminal facilities; (i) elevator service; 0) all standard incandescent and florescent bulb replacement, including ballast replacement, in the Building; and (k) garbage removal. The above types and level of services may be modified by Authority exercising reasonable business judgment based on the actual demands of the Air Transportation Facility. Authority shall obtain Bureau's approval (not to be unreasonably withheld, conditioned or delayed) prior to modifying the types and levels of Building services. Authority shall provide services to the Subleased Premises during hours other than normal Business Hours upon written request of Bureau to Authority (or its designee or agent) given not less than twenty-four (24) hours prior to the date and time Bureau requires such service. Section 4.2 Authority's Buildiny, Repairs. Authority shall, at its sole cost and expense, provide all maintenance, including preventive maintenance, repairs and replacements, as necessary, to the Building and Common Areas (excluding only those items of maintenance and repairs which are required of Subtenants under the Occupancy Agreements, including this Sublease and the Existing Subleases), including, but not limited to, the pavement, driveways, parking areas, lighting, Building interior walls, ceilings, plumbing, heating, air conditioning, electrical and life safety systems, and also including all utility (including water and sewer service) and cable, fiber optic or other communications conduits and lines outside the Subleased Premises. All maintenance, repairs and replacements shall be performed in a manner and at a level consistent with comparable Class A buildings and terminal facilities. In addition to the foregoing, Authority shall also be responsible for and provide the maintenance obligations to the Air Transportation Facility set forth in Section 5.1 of this Sublease. 20 03- 206 Section 4.3 Cost for Building Services and Repairs. Notwithstanding the above provision of services, maintenance and repairs by Authority, at its sole cost, all Subtenants utilizing the Building, including Bureau, Chalks, Bimini Landing and the City, but expressly exempting the providers of Federal Inspection Services, shall pay a proportionate share of the Building O&M Expenses to cover the actual costs of the services and repairs referred to in Sections 4.1 and 4.2 hereof. Such proportionate share shall be equal to a percentage which shall be calculated on the basis of each Subtenant's actual square feet in the Building divided by the Rentable Square Feet of the Building and, in the case of Bureau, shall be equal to Bureau's Percentage Share. In the event any injury or damage to the Building or other improvements is caused by the negligence or intentional acts of Bureau or any other Subtenant, their employees, agents, contractors, licensees or invitees, the party so responsible for such injury or damage shall, at its sole cost, pay for such repair and/or replacement required. The manner of reimbursement to Authority of those costs of providing the services outlined in Sections 4.1 and 4.2 beyond Bureau's Percentage Share shall be as more particularly set forth in the agreements between Authority and the respective Subtenant, and shall not be the responsibility of Bureau. Section 4.4 Subtenants' Services. Each Subtenant, including Bureau, shall be required to furnish and pay, at such Subtenant's sole expense, all other utilities (including, but not limited to, electric, telephone and cable television service, if available and hook-up and connection charges) and other services which such Subtenant requires with respect to its use of the Building. Each Subtenant, including Bureau, shall be required, at its sole cost and expense, to keep and maintain in good order, condition and repair at all times the Building area it utilizes, including, without limitation, nonstructural, interior portions, systems and equipment, floor coverings, decoration (e.g., carpeting, painting, wall coverings, drapes and other window treatments, refinishing, etc.), fixtures and equipment therein, excluding the maintenance and repair obligations of Authority under Section 4.2. Bureau shall be responsible for cleaning and providing janitorial services to the Subleased Premises, the Press Center and the VIP Conference Center, including cleaning, sanitizing, stocking with supplies and providing minor plumbing repairs to the bathrooms within all such areas. Bureau shall maintain the Subleased Premises, and all improvements to be 21 03- 206 constructed thereon, in a presentable condition consistent with comparable Class A buildings, and in a safe, neat and clean condition. Section 4.5 City and Authority Not Liable for Failure of Utilities. The City and Authority shall not be liable (other than for their own or any of their agents, servants and employees gross negligence or willful misconduct) for any failure of water supply, sewer, gas or electric current, or for any injury or damage to any Person or property caused by or resulting from any water, sewer, gas or electricity which may leak or flow from the water, sewer or gas mains on to any part of the Subleased Premises or the Building. ARTICLE V. AIR TRANSPORTATION FACILITY SERVICES Section 5.1 Maintenance Obli atg ions. In addition to the requirements of Article IV of this Sublease (and without limiting same), Authority, directly or indirectly, shall repair and maintain the Common Areas, the public areas, and any structural portions of any buildings owned by the City in the Air Transportation Facility, including the exterior walls, underflooring and roof, the cost of which shall be included in the All Direct O&M Expenses, unless such maintenance and repair becomes necessary in whole or in part due to: (i) the misuse, act or fault of Bureau, its employees, agents, customers, licensees, or invitees in or about the Air Transportation Facility; (ii) any damage occasioned by the failure of Bureau to perform or comply with any terms, conditions, or covenants of this Sublease; or (iii) any structural alterations or improvements required by Bureau's particular use and occupancy of the Subleased Premises, in which case Bureau shall pay to Authority the entire cost of such maintenance, repair or alteration. Rent shall not be reduced and Authority shall not be liable under any circumstances for a loss of, or injury to, property, loss of profits, or for injury to or interference with Bureau's business arising from or in connection with the making of or Authority's failure to make any repairs, maintenance, alterations or improvements in or to any portion of the Air Transportation Facility or in or to fixtures, appurtenances and equipment therein, unless occasioned by the gross negligence or willful misconduct of Authority, its employees, agents, invitees or contractors. All repairs to be made by Authority shall be made with dispatch and in such a manner and at such time as to cause the least possible inconvenience to Bureau in the conduct of its business. 22 "33- 206 Section 5.2 Authority's Management Obligations. Authority shall be the manager of the Air Transportation Facility with all of the rights, obligations and responsibilities described in this Article and Article IV, and agrees to employ a qualified manager or retain the services of a qualified management company to perform its maintenance, repair and management services under this Sublease. Authority shall obtain Bureau's prior written approval (not to be unreasonably withheld, conditioned or delayed) of any manager or management company engaged by Authority to manage the Air Transportation Facility. In addition, the management agreement, and any modifications, amendments, renewals and replacements thereof which could reasonably be expected to materially adversely affect Bureau's rights or obligations hereunder or the management of the Air Transportation Facility, shall be subject to the prior written approval of Bureau, which shall not be unreasonably withheld, conditioned or delayed. ARTICLE VI. CONSIDERATION Section 6.1 Base Monthly Rent; Press Center Rent (a) Base Monthly Rent. From and after the Commencement Date, Bureau shall pay to Authority, in advance, on the first day of each and every calendar month during the Term, base monthly rent (the "Base Monthly Rent") equal to $0.00 per square foot of the Subleased Premises per annum. The Base Monthly Rent for the Subleased Premises has been calculated on the basis of the Fair Market Rent for the Subleased Premises taking into account the projected costs of operating the Project and the value of Bureau's Construction Contribution, a portion of which has been amortized over the Term of this Sublease and used as a credit against or a reduction in the Fair Market Rent (i.e., in the amount of $5.76 per square foot of the Subleased Premises per annum for the initial Term). Base Monthly Rent shall be fixed for the initial Term of this Sublease. (b) Press Center Rent. Bureau shall also pay to Authority, in advance, on the first day of each and every calendar month during the Term, fifty percent (50%) of the monthly rent due for the Press Center and VIP Conference Center (the "Press Center Rent") under the City's Occupancy Agreement for such space, a true, complete and correct copy of which is attached hereto as Exhibit D (the "Press Center Sublease"). For purposes of this Sublease, the Parties agree that the annual Press Center Rent is equal to (i) the aggregate of All Direct O&M Expenses 23 i)3- 206 and Indirect O&M Expenses for such space, which expenses are calculated and increased (or decreased) in the same manner as such expenses are calculated and increased (or decreased) under this Sublease, provided that any increases in Indirect O&M Expenses shall be subject to the three percent (3%) cap set forth in Sections 6.7 hereof, (ii) base rent in the amount of $5.76 per square foot of the Press Center and VIP Conference Center, and (iii) if the City pays for separately metered utilities under the Press Center Sublease, any payments made by the City for such separately metered utility charges. Base rent under clause (ii) hereof shall be fixed for the initial Term of this Sublease. The monthly Press Center Rent shall be equal to one -twelfth of the annual Press Center Rent described above. Bureau's responsibility for fifty percent (50%) of Press Center Rent shall continue during any Extension Term if the City has extended the term of the Press Center Sublease, provided that the Press Center Rent shall be the rent due and payable for the extension terms under paragraph 27 of the Press Center Sublease. Bureau's responsibility for fifty percent (50%) of the Press Center Rent will be determined based on the factors specifically set forth in the immediately preceding sentence throughout the Term of this Sublease, anything in the Press Center Sublease to the contrary notwithstanding. Authority agrees that Bureau shall not be responsible for any increases in Press Center Rent resulting from amendments or modifications to the Press Center Sublease; provided, however, that any reductions in the Press Center Rent under the Press Center Sublease resulting from amendments, modifications or otherwise shall reduce the Bureau's obligation for Press Center Rent hereunder proportionately. Bureau shall not be required to pay any Press Center Rent prior to the date the Press Center is functional for its intended purposes (i.e. for use as an international press center) under any circumstances. Furthermore, in the event that the use of the Press Center is changed from an international press center to any other use, or the Press Center Sublease is terminated for any reason other than (1) Bureau's failure to pay fifty percent (50%) of Press Center Rent as required herein, or (2) a breach of the Press Center Sublease caused by Bureau's use thereof, Bureau shall be obligated to pay Press Center Rent through the date of such change in use or termination only, and shall thereafter have no obligation for Press Center Rent for the remainder of the Term. In such event, however, the VIP Conference Center shall be and become part of the Visitors Center and Subleased Premises under this Sublease subject to the exclusive use of the Bureau, and the Bureau's Percentage Share and any other amounts specified in this Sublease as a function of square footage of the Subleased Premises shall be adjusted accordingly. 24 03- 206 (c) Sales Tax. Bureau shall pay to Authority the amount of any sales or similar tax imposed by the State of Florida, if applicable, or any subdivision thereof on the Rent and other charges payable by Bureau under this Sublease, including any sales or similar tax which may be due on the amounts received by Bureau as a credit for Bureau's Construction Contribution. Such payments on account of sales or similar taxes shall be paid together with the corresponding amounts due under this Sublease and the obligation to pay same shall survive the expiration or earlier termination of this Sublease. Section 6.2 Bureau's Share of Direct Airport O&M Expenses (a) Bureau's Share. In addition to the payment of Base Monthly Rent, from and after the Commencement Date, Bureau shall also pay to Authority Bureau's Percentage Share of the annual All Direct O&M Expenses and Indirect O&M Expenses ("Airport O&M Expense Rent"). All Airport O&M Expense Rent calculations for any partial Expense Year shall be equitably prorated based upon a 365 -day year. Building O&M Expenses are initially estimated to be $4.80 per square foot per annum (or $177,207 based on a total of 36,901.8 Rentable Square Feet); Direct Airport O&M Expenses are initially estimated to be $8.54 per square foot per annum (or $314,975 based on a total of 36,901.8 Rentable Square Reet); and, provided that the Air Transportation Facility is exempt from ad valorem real estate taxes, PILOT is fixed from the Commencement Date through the end of the first full 12 -month Expense Year at $2.98 per square foot per annum (or $109,944 based on a total of 36,901.8 Rentable Square Feet) (the "Initial Budgeted PILOT Amount"). The budget on which the initial estimated Airport O&M Expense Rent is based is attached hereto as Exhibit B. All Direct O&M Expenses shall be adjusted each Expense Year, as set forth below, based on the actual cost to Authority, or its representative, of operation of the Air Transportation Facility, subject to the annual cap on increases of three percent (3%) after the first two (2) Expense Years as provided in Section 6.2(f) below. Provided that the Air Transportation Facility is exempt from ad valorem real estate taxes, Indirect O&M Expenses shall increase annually on each Expense Year Anniversary as provided in Section 6.7 below, and Bureau shall pay Bureau's Percentage Share of such increase. (b) Utilities. To the extent that (i) electric service to the various portions of the Building leased by Authority to Subtenants (including Bureau) for their respective exclusive use 25 a)3— 206 is separately metered, and (ii) all Subtenants pay for such electric service so separately metered either to Authority or the utility providing such service, All Direct O&M Expenses shall exclude charges for electricity to such areas of the Building that are separately metered. It is anticipated that there will be three (3) water meters for the Air Transportation Facility: one for the Airside Area, one for all space within the Building Site (as defined in the Development Agreement) and Building other than the area leased to Bimini Landing, and one for the area leased to Bimini Landing. To the extent that Bimini Landing pays for its separately metered water charges, All Direct O&M Expenses shall exclude charges for water service to such area. Additionally, All Direct O&M Expenses shall exclude charges for all utilities, including without limitation electric and water service, to the Airside Area, which shall be paid separately by Chalks. The Press Center Sublease and all future Occupancy Agreements shall include a provision which requires the Subtenant thereunder to pay for utilities provided to their respective premises to the extent they are separately metered. Authority shall use good faith and commercially reasonable efforts to cause all Subtenants to pay for all utilities provided to and consumed at their respective premises so that All Direct O&M Expenses do not include charges for utilities consumed by a particular Subtenant within its premises. If any Subtenant refuses to pay for any utilities separately metered to its premises for any reason (other than as a result of a default or event of default by such Subtenant under its Occupancy Agreement), then none of the Subtenants of the Building (including Bureau) shall be required to pay for utilities separately metered to their respective premises and the cost of such utilities shall be included in All Direct O&M Expenses. (c) Statement of Estimated Direct Airport O&M Expenses. Within thirty (30) days prior to the commencement of each Expense Year, Authority shall give Bureau an estimated yearly expense statement (the "Airport O&M Expense Estimate") which shall set forth Authority's reasonable estimate of the total All Direct O&M Expenses and Indirect O&M Expenses (if applicable) for such Expense Year and Bureau's Percentage Share thereof. Each Airport O&M Expense Estimate shall be divided into twelve (12) equal monthly installments. Bureau shall pay to Authority such monthly installment of Airport O&M Expense Rent with each monthly payment of Base Monthly Rent for the Subleased Premises. If at any time during any Expense Year it shall appear that Authority has underestimated Bureau's Percentage Share of the annual All Direct O&M Expenses for such Expense Year, Authority may re -estimate Bureau's Percentage Share of All Direct O&M Expenses and may bill Bureau for any deficiency In 03- 206 which may have accrued during said Expense Year and thereafter the monthly installment payable by Bureau shall be adjusted to reflect the re -estimated amount of Airport O&M Expense Rent due. In the event the estimated amount of Airport O&M Expense Rent has not yet been determined for any Expense Year, Bureau shall pay the monthly installment in the estimated amount determined for the preceding Expense Year until the estimate for the current Expense Year has been provided to Bureau. At such time as the estimate for the current Expense Year is received, Bureau shall then pay any shortfall for the preceding months of the Expense Year and shall, thereafter, make the monthly installment payment in accordance with the current estimate. In the event the sums of estimated Airport O&M Expense Rent actually paid for the preceding months of the Expense Year exceeds the estimated amount of Airport O&M Expense Rent due, the difference shall be applied as a credit to future Airport O&M Expense Rent payments due to Authority. Any delay by Authority in delivering the Airport O&M Expense Estimate shall not be deemed a waiver of the right of Authority to collect the Airport O&M Expense Rent. (d) Actual Airport O&M Expenses. As soon as reasonably possible following the end of each Expense Year, Authority shall determine and provide to Bureau a statement ("Airport O&M Expense Statement") setting forth the amount of All Direct O&M Expenses and Indirect O&M Expenses (if applicable) actually incurred and the amount of Airport O&M Expense Rent actually payable by Bureau with respect to such Expense Year. In the event the amount of such Airport O&M Expense Rent exceeds the sum of all the monthly installments actually paid by Bureau for such Expense Year, Bureau shall pay to Authority, within thirty (30) days following receipt of the actual Airport O&M Expense Statement, the difference, subject to the annual cap on increases of three percent (3%) after the first two (2) Expense Years of the Term as provided in Section 6.2(f) below. In the event the sum of such installments exceeds the amount of Airport O&M Expense Rent actually due and owing, the difference shall be applied as a credit to future Airport O&M Expense Rent payable by Bureau (except for overpayments during the first two (2) Expense Years, which shall be deposited in the Shortfall Reserve pursuant to Section 6.8). If the Term has expired and Bureau has vacated the Subleased Premises, when the final determination is made and if amounts are owed to Authority, Bureau shall, within thirty (30) days after receipt of notice from Authority, pay such excess to Authority and if Bureau has overpaid, Authority will, within thirty (30) days after such determination, 27 ;J3- 206 refund such excess to Bureau, provided Bureau's vacation of the Subleased Premises was not as a result of an Event of Bureau's Default. The provisions of this paragraph shall survive the expiration or earlier termination of the Term. (e) Audit Rights. In the event Bureau disputes Authority's determinations set forth in the Airport O&M Expense Statement and delivers written notice of such dispute within sixty (60) days of receipt of the Airport O&M Expense Statement, Bureau shall have the right, at its sole cost and expense, to conduct an audit by a certified public accountant acceptable to Authority (in its reasonable discretion) of Authority's records relating to the Airport O&M Expense Statement disputed. Such audit shall be conducted at a time and place acceptable to Authority and shall be limited in scope to the Expense Year referenced in the Airport O&M Expense Statement disputed. All records shall remain in the possession of Authority. Bureau may purchase copies of said records at such cost as is reasonable to cover the cost of said reproduction. In the event such audit has been performed by a certified public accountant acceptable to Authority and shows a discrepancy in the amounts charged to Bureau under the Airport O&M Expense Statement, Bureau shall, in the event of overpayment, receive a credit against the next installment(s) of Airport O&M Expense Rent payable by Bureau to Authority, or in the event of underpayment, Bureau shall pay the difference to Authority within thirty (30) days following receipt of the audit report. (f) O&M Expense Cap. Notwithstanding anything in this Section 6.2 or elsewhere in this Sublease to the contrary, during the first two (2) Expense Years of the Term, Bureau shall pay Bureau's Percentage Share of estimated and actual All Direct O&M Expenses, including without limitation any shortfalls during such two-year period in the event Bureau's Percentage Share of actual All Direct O&M Expenses exceeds the amount estimated by the Authority. Commencing with the third (3`d) Expense Year of the Term and each Expense Year (or a portion thereof) thereafter, the Bureau's Percentage Share of estimated and actual All Direct O&M Expenses for any Expense Year shall not exceed one hundred three percent (103%) of the actual amount of Bureau's Percentage Share of All Direct O&M Expenses for the immediately preceding Expense Year; it being the intention of the Parties that increases in Bureau's estimated and actual Percentage Share of All Direct O&M Expenses for the Subleased Premises (but not Press Center Rent) shall be capped from one Expense Year to the next (after the second (2nd) 28 rA - 206 Expense Year) at three percent (3%) per year. All Direct O&M Expenses in excess of the three percent (3%) cap may be paid from the Shortfall Reserve. Section 6.3 Security Deposit. In light of Bureau's Construction Contribution and commitment to the Project, Bureau shall not be required to make or post a security deposit under this Sublease. Section 6.4 Additional Rent. In addition to the Base Monthly Rent, Press Center Rent and Airport O&M Expense Rent under Sections 6.1 and 6.2, all other payments or charges payable by Bureau under the provisions of this Sublease, however denoted, are called "Additional Rent". Unless this Sublease provides otherwise, all Additional Rent shall be paid with the next installment of the Base Monthly Rent. Section 6.5 Interest on Late Payments. Any payment made by Bureau for any rental, fee or charge as required to be paid under the provisions of this Sublease, which is not received by Authority within ten (10) days after same shall become due, shall be subject to interest at the Prime Interest Rate, or such other rate as specified as the general interest rate on obligations in Florida by Chapter 687, Florida Statutes, whichever is higher, from the date such payment is due until such time as the payment is actually received by Authority. Section 6.6 Place of Payment. Payment of the Base Monthly Rent, Press Center Rent, Airport O&M Expense Rent, Additional Rent and all other charges deemed to be Rent under this Sublease shall be without prior notice, deduction, offset or demand, shall be in lawful money of the United States of America and shall be made at the address set forth for Authority or such other party or such other address as may be designated by Authority from time to time. If Authority shall at any time or times accept Rent after it shall become due and payable, such acceptance shall not excuse delay upon subsequent occasions, or constitute or be construed as a waiver of any or all of Authority's rights hereunder. Section 6.7 Impositions or Payments in Lieu of Taxes. Bureau shall be responsible for the payment of all Impositions applicable to the Subleased Premises before any fine, penalty or interest is assessed for non-payment. To the extent such Impositions are applicable to the Air Transportation Facility or the Building, 29 #)3- 206 Authority shall be responsible for remitting payment to the appropriate authority and Bureau shall pay Bureau's Percentage Share of the Impositions in the form of Indirect O&M Expense component of Rent, calculated in the manner provided in Section 6.2(a) above. In the event that the Air Transportation Facility is exempt from ad valorem real estate taxes, Bureau shall pay to Authority, for payment to the City, a Payment In Lieu of Taxes ("PILOT") in the amount of the Initial Budgeted PILOT Amount as shown in the Airport O&M Expense Rent budget for the period from the Commencement Date through the end of the first Expense Year, and Bureau shall pay Bureau's Percentage Share thereof in lieu of payment of ad valorem taxes in equal monthly installments. The Indirect O&M Expense component of Rent shall increase on each Expense Year Anniversary by multiplying the PILOT amount (determined on a per -square -foot basis) for the immediately preceding Expense Year (which, in the case of the first Expense Year Anniversary, is the Initial Budgeted PILOT Amount) by (i) a fraction, the numerator of which is the CPI for the date which is two (2) months prior to the beginning of the Expense Year for which such adjustment is to be made and the denominator of which is the CPI for the date which is two (2) months prior to the beginning of the immediately preceding Expense Year, or (ii) one hundred three percent (103%), whichever is less, and Bureau shall be responsible for Bureau's Percentage Share of such increase. If the Air Transportation Facility is assessed real property taxes, there will be no PILOT, and the Initial Budgeted PILOT Amount will be applied by Authority to pay or contribute to the payment of any such tax liability, with Bureau to be responsible for Bureau's Percentage Share of such real property taxes in excess of the Initial Budgeted PILOT Amount. Bureau shall be solely responsible for the payment of any intangible personal property taxes assessed on its leasehold interest pursuant to Title XIV, Chapter 199 of the Florida Statutes or any successor thereto. Section 6.8 Shortfall Reserve. Notwithstanding anything herein to the contrary, Authority shall deposit promptly following the receipt of monthly payments from Subtenants on account of the PILOT, PILOT Net Proceeds into a separate account for the Air Transportation Facility (the "Shortfall Reserve") until the balance in the Shortfall Reserve reaches $425,000. In addition, to the extent that the actual All Direct O&M Expenses for the first two (2) Expense Years are less than the estimated amount of All Direct O&M Expenses set forth in Section 6.2(a) hereof, Bureau shall nevertheless pay Bureau's Percentage Share of the initially estimated All Direct O&M Expenses under said 30 x;03- 206 Section 6.2(a) for each such Expense Year and any unused funds shall be deposited in the Shortfall Reserve to cover future Shortfalls. After the first two (2) Expense Years of the Term, All Direct O&M Expenses shall be based on estimated and actual expenses (subject to Bureau's three percent (3%) cap) in accordance with the terms of Section 6.2 of this Sublease even if the actual expenses are less than those estimated in Section 6.2(a). At any time that the Shortfall Reserve falls below $425,000, Authority shall deposit the next payment(s) of PILOT Net Proceeds due to the City into the Shortfall Reserve until the balance is restored to $425,000. Subject to the terms of Section 2.2 of the Interlocal Agreement, the Shortfall Reserve may be used by Authority to pay all Shortfalls, including without limitation All Direct O&M Expenses in excess of the three percent (3%) cap. Section 6.9 Airport Revenue Fund. All other Airport Revenue shall be deposited in the Airport Revenue Fund (as defined in the Interlocal Agreement) and disbursed for the operation, management, maintenance and repair of the Air Transportation Facility, as more particularly described in the Interlocal Agreement. Section 6.10 Payments by Other Subtenants. In the event any Subtenant fails to pay Airport Revenue due from such Subtenant under its Occupancy Agreement, the Authority agrees to enforce the terms, conditions and provisions of such Occupancy Agreement against such Subtenant to maximize (to the fullest extent possible) the Airport Revenue available to pay for the services, management, maintenance and operating expenses of the Air Transportation Facility. The Authority agrees that it shall not modify any existing Occupancy Agreements to reduce the contribution to any item of Airport O&M Expense Rent by the Subtenants thereunder and to include in any new Occupancy Agreement entered into after the date hereof contributions to Airport O&M Expense Rent by the Subtenants thereunder consistent with the definition of Airport O&M Expense Rent (including All Direct O&M Expense and Indirect O&M Expense) under this Sublease. Section 6.11 No Double Charge. Authority agrees that Bureau shall not be double -charged for any expenses passed through to Bureau under this Sublease. Accordingly, Bureau shall pay for each such expense in accordance with the terms hereof one time only, notwithstanding that one or more sections of this Sublease may address the same item of expense. 31 d)3— 206 ARTICLE VII. HAZARDOUS MATERIALS Section 7.1 Handling of Hazardous Materials. At all times during the Term, Bureau shall, at its sole cost and expense, at all times and in all respects comply with all federal, state and local laws, statutes, ordinances and regulations, rules, rulings, policies, orders and administrative actions and orders ("Hazardous Materials Laws"), including, without limitation, any Hazardous Materials Laws relating to industrial hygiene, environmental protection or the use, analysis, generation, storage, disposal or transportation of any fuel, oils, flammable explosives, asbestos, urea formaldehyde, radioactive materials or waste, infectious waste, or other hazardous, toxic, contaminated or polluting materials, substances or wastes, including, without limitation, any "Hazardous Substances", "Hazardous Wastes", "Hazardous Materials" or "Toxic Substances", under any such laws, ordinances or regulations (collectively "Hazardous Materials"). Bureau shall, at its sole cost and expense, procure, maintain in effect and comply with all conditions of any and all permits, licenses, consents and other governmental and regulatory authorizations and approvals relating to the presence of Hazardous Materials within, on, under or about the Subleased Premises required for Bureau's use of any Hazardous Materials in or about the Subleased Premises in conformity with all applicable Hazardous Materials Laws and prudent industry practices regarding management of such Hazardous Materials. Authority recognizes and agrees that Bureau may use materials in normal quantities that are applicable to the use of the Subleased Premises for the purposes stated herein and that such use by Bureau shall not be deemed a violation of this Section, so long as the levels are not in violation of any Hazardous Materials Laws. Bureau shall, at its sole cost and expense, be responsible for performing any removal, remediation, cleanup or restoration required as a result of a release of Hazardous Materials in or about the Subleased Premises, caused by the placement of Hazardous Materials in or about the Subleased Premises, or used by Bureau or at Bureau's direction or by Bureau's failure to comply with any Hazardous Materials Laws. Upon termination or expiration of the Sublease, Bureau shall, at its sole cost and expense, cause all Hazardous Materials, including their storage devices, placed in or about the Subleased Premises by Bureau or its employees, members, agents or guests or at Bureau's direction to be removed from the Subleased Premises and transported for use, storage or disposal in accordance 32 03- 206 and compliance with all applicable Hazardous Materials Laws. Authority acknowledges that it is not the intent of this Article VII to prohibit Bureau from operating the Subleased Premises for the use described in Section 3.1. Bureau may operate according to the custom of the industry so long as the use or presence of Hazardous Materials is strictly and properly monitored according to all applicable governmental requirements and Bureau is not in violation of any Hazardous Materials Laws. Section 7.2 Indemnification. Bureau shall indemnify, protect, defend and hold City and Authority free and harmless from and against any and all claims, liabilities, penalties, forfeitures, losses and expenses (including attorneys' fees) or death of or injury to any person or damage to any property whatsoever, arising from or caused in whole or in part, directly or indirectly, by or in connection with (i) the presence in or about the Subleased Premises of any Hazardous Materials placed in or about the Subleased Premises or used by Bureau or its employees, officers, agents, contractors or customers or at any such person's direction, (ii) Bureau's failure to comply with any Hazardous Materials Law, and (iii) any removal, remediation, cleanup or restoration of Hazardous Materials placed on or deposited on or about the Subleased Premises by Bureau, or at Bureau's discretion, required hereunder to comply with applicable laws or to return the Subleased Premises and any other property of whatever nature within the Subleased Premises to their condition existing prior to the appearance of such Hazardous Materials. Section 7.3 Disclosure, Warning and Notice Obligations. Bureau shall comply with all laws, ordinances and regulations in the State of Florida regarding the disclosure of the presence or danger of Hazardous Materials. Bureau acknowledges and agrees that all reporting and warning obligations required under the Hazardous Materials Laws are the sole responsibility of Bureau, whether or not such Hazardous Materials Laws permit or require Authority to provide such reporting or warning, and Bureau shall be solely responsible for complying with Hazardous Materials Laws regarding the disclosure of, the presence or danger of Hazardous Materials. Bureau shall immediately notify Authority, in writing, of any complaints, notices, warning, reports or asserted violations of which Bureau becomes aware relating to Hazardous Materials on or about the Subleased Premises. Bureau shall also immediately notify Authority if Bureau knows or has reason to believe a complaint, notice, warning, report or asserted violation will be released on or about the Subleased Premises. 33 03- 206 Section 7.4 Environmental Tests and Audits. Bureau shall not perform or cause to be performed, any Hazardous Materials surveys, studies, reports or inspections, relating to the Subleased Premises without obtaining Authority's advance written consent, which consent will not be unreasonably denied. At any time during the Term, Authority shall have the right to enter upon the Subleased Premises in order to conduct appropriate tests to establish whether the Subleased Premises is in compliance with all applicable Hazardous Materials Laws. Section 7.5 Survival of Bureau's Obligations._ The respective tights and obligations of Authority and Bureau under this Article VII shall survive the expiration or termination of this Sublease. ARTICLE VIII. LICENSES; COMPLIANCE WITH LAWS Section 8.1 Licenses and Permits. Bureau shall, at Bureau's sole cost and expense, obtain, and comply with the terms of, any and all licenses and permits necessary and in connection with Bureau's use, occupancy and maintenance of the Subleased Premises. Section 8.2 Compliance with Laws. Bureau accepts this Sublease and hereby acknowledges that Bureau's compliance with the Deed Restrictions, the JPAs and all Applicable Laws, ordinances and codes of federal, state and local governments, as they may apply to this Sublease, including but not limited to building codes and zoning restrictions, is a condition of this Sublease and Bureau shall comply therewith as the same presently exist and as they may be amended hereafter. ARTICLE IX. ALTERATION OF PREMISES Section 9.1 Change/Alterations. Except during the initial construction of the Project, which shall be handled in accordance with the terms and conditions of the Development Agreement, and for purposes of providing services and repairs as outlined in Article IV, Bureau shall not make any structural alterations, alterations to the exterior of the Building, or alterations which will result in an increase in Building O&M Expenses (collectively, "Major Alterations"), without the prior written consent of 34 r)3- 206 the Authority and the City Manager, which consent may be withheld within the sole discretion of the Authority or City Manager (as applicable) and shall be granted or denied within thirty (30) days after written request by Bureau. Bureau shall have the right to make all other alterations to the Subleased Premises, including, without limitation, all interior, non-structural alterations, without the consent of Authority or the City. Any Alterations undertaken in or to the Subleased Premises shall be performed in accordance with this Article and the other obligations of this Sublease. Section 9.2 Manner of Construction. Authority may impose, as a condition of its consent to all Major Alterations or repairs on or about the Subleased Premises, such requirements as Authority, in its sole but reasonable discretion, may deem desirable, including, but not limited to, the requirement that Bureau obtain bonds and Builder's Risk Insurance. Bureau shall construct such Alterations or repairs in conformance with any and all Applicable Laws and pursuant to a valid building permit, issued by the local jurisdiction in which the Subleased Premises is located, if the Alteration cannot be performed without a building permit under Applicable Laws. In any event, a licensed contractor shall perform all mechanical, electrical, plumbing, air conditioning, permanent partition and ceiling tile work, and such work shall be performed at Bureau's sole cost. All work, with respect to any Alterations or repairs by Bureau, must be done in a good and workmanlike manner and diligently prosecuted to completion. Upon completion of any Major Alterations, Bureau agrees to deliver to Authority a copy of the "as built" drawings of the Major Alterations, if the Major Alterations would customarily generate "as builts" and record any necessary notices to evidence completion as would be customary in the State of Florida. In performing the work of any Alterations, Bureau shall have the work performed in such manner as not to obstruct the access to the Common Areas and Air Transportation Facility by Authority or any Subtenant, invitee or licensee of the Air Transportation Facility. Section 9.3 Mechanics' Liens. Bureau shall not suffer or permit any mechanics' liens to be filed against the title to the Subleased Premises, the Building, or the Air Transportation Facility, nor against Authority's interest in the Property, nor against Bureau's interest in the Property, nor against any Alteration by reason of work, labor, services or materials supplied to Bureau or anyone having a right to possession of the Subleased Premises, the Building, or the Air Transportation Facility as a result 35 sJ3— 206 of an agreement with or the consent of Bureau. Nothing in this Sublease shall be construed as constituting the consent or request of Authority, expressed or implied, by inference or otherwise, to any contractor, subcontractor, laborer or materialman for the performance of any labor or the furnishing of any materials for any specific Alteration, or repair of or to the Subleased Premises, the Building or the Air Transportation Facility nor as giving Bureau the right, power or authority to contract for or permit the rendering of any services of the furnishing of any materials that would give rise to the filing of any mechanics liens against Authority's interest in the Subleased Premises, the Building, or the Air Transportation Facility. If any mechanics' lien shall at any time be filed against the Subleased Premises, the Building, or the Air Transportation Facility, Bureau shall cause it to be discharged of record within thirty (30) days after the date Bureau has knowledge of its filing. If Bureau shall fail to discharge a mechanics' lien within that period, then in addition to any other right or remedy, Authority may, but shall not be obligated to, at Bureau's sole cost and expense (including, without limitation, the payment of Authority's reasonable attorneys' fees and expenses) discharge the lien either by paying the amount claimed to be due or by procuring the discharge of the lien by deposit in court of bonding, or in the event Authority shall be entitled, if it so elects, to compel the prosecution of any action for the foreclosure of the mechanics' lien by the lienor and to pay the amount of the judgment, if any, in favor of the lienor with interest, costs and allowances with the understanding that all amounts paid or incurred by Authority, including without limitation reasonable attorneys' fees and expenses, shall constitute Additional Rent due and payable under this Sublease and shall be repaid to Authority by Bureau immediately upon rendition of any invoice or bill by Authority. Bureau shall not be required to pay or discharge any mechanics' lien so long as Bureau shall in good faith proceed to contest the lien by appropriate proceedings and if Bureau shall have given notice in writing to Authority of its intention to contest the validity of the lien and shall furnish and keep in effect a surety bond of a responsible and substantial surety company reasonably acceptable to Authority or other security reasonably satisfactory to Authority in an amount sufficient to pay one hundred ten percent (110%) of the amount of the contested lien claim with all interest on it and costs and expenses, including reasonable attorneys' fees to be incurred in connection with it. If Bureau is unsuccessful in such contest, Bureau shall promptly discharge the lien in accordance with the provisions of this Section. 36 o)3— 206 Section 9.4 Changes and Additions to Air Transportation Facility_ Authority reserves the right at any time and from time to time, and at its sole cost and expense, (a) to make or permit changes or revisions in its plan for the Air Transportation Facility including additions to, subtractions from, rearrangements of, alterations of, modifications of or supplements to the building areas, walkways, parking areas, driveways or other Common Areas, (b) to construct other buildings or improvements in the Air Transportation Facility or the Property and to make alterations thereof or additions thereto and to build additional stories on any such building or buildings adjoining same, (c) to make or permit changes or revisions in the Air Transportation Facility, including additions thereto, and to convey all or portions of the Air Transportation Facility to others for the purpose of constructing thereon other buildings or improvements, including additions thereto and alterations thereof, and (d) to change location, size, content and design of any signage for the Air Transportation Facility and no such change shall entitle Bureau to any abatement of Rent. Notwithstanding the rights of Authority above, in the event the change or addition (i) affects the exterior appearance or functionality of the Building, or (ii) materially and adversely affects the Bureau's use or occupancy of the Subleased Premises, Bureau's prior written consent to such change or addition shall be required, which consent may be granted or withheld in Bureau's sole discretion. Furthermore, in the event the change or addition materially increases All Direct O&M Expenses, Bureau's prior written consent to such change or addition shall be required, which consent shall not be unreasonably withheld. Any increased costs of operation and maintenance of the Building, or Airport Transportation Facility, respectively, as such facilities may be modified pursuant to this Section (including, without limitation, all charges for janitorial services, water, sewer, electricity, telephone and the repair costs for the changes) shall not be a part of the Building O&M Expenses or Direct Airport O&M Expenses, as appropriate, unless Authority has obtained Bureau's prior written consent to such modifications (to the extent such consent is expressly required hereunder). Notwithstanding anything herein to the contrary, the terms and provisions of the Development Agreement shall govern and control with respect to the initial construction and development of the Project in accordance with the Conceptual Site Plan. 37 �J3- 206 ARTICLE X. AUTHORITY'S INSPECTION AND RIGHT OF ENTRY Section 10.1 Inspection by Authority. Authority shall have the right to make periodic reasonable inspections of all the Subleased Premises and improvements thereof, during normal Business Hours to determine if such are being maintained in a neat and orderly condition. Such periodic inspections may also be made at Authority's discretion to determine whether Bureau is operating in compliance with the terms and provisions of this Sublease. Section 10.2 Authority's Right of Entry. Bureau agrees to permit Authority to enter upon the Subleased Premises at all reasonable times, for any purpose Authority deems necessary to, incident to, or connected with the performance of Authority's duties and obligations hereunder or in the exercise of its rights and functions. Authority and its authorized representative shall at all times have access to the Subleased Premises. Authority will maintain a complete set of keys to the Subleased Premises. Notwithstanding the foregoing, Authority will enter the Subleased Premises during Business Hours only and accompanied by a representative of Bureau except in the case of an entry necessitated by an emergency. ARTICLE XI. INDEMNIFICATION AND INSURANCE Section 11.1 Indemnification. Bureau shall indemnify, protect, defend and hold harmless Authority and the City, their officials, employees and agents from and against any and all claims, suits, actions, damages or causes of action of whatever nature arising out of the use or operation of the Subleased Premises by Bureau or any of its officers, employees, directors, representatives or agents, whether such claim shall be made by an employee or member of Bureau, an employee of Authority, an employee of the City, or by any third party, and whether it relates to injury to persons (including death) or damage to property and whether it is alleged that Authority or the City, or their employees, officials or agents were negligent; provided, however, that this indemnity shall not extend to or cover any claims, suits, actions, damages or causes of action arising out of the gross 38 P33- 206 negligence or willful misconduct of the City or Authority, or anyone acting by, through or under either of them. Bureau shall, at its own cost and expense, pay and satisfy all costs related to any orders, judgments or decrees which may be entered as to any claim subject to indemnification hereunder, and from and against all reasonable costs, attorneys' fees, expenses and liabilities incurred in and about the defense of any such claims and the investigation thereof. Bureau shall further indemnify, defend, protect and hold Authority and City harmless from and against any and all claims arising from any breach or default in performance of any obligation on Bureau's part to be performed under the terms of this Sublease, or arising from any act, neglect, fault or omission of Bureau, its members, agents, contractors, employees and servants and from and against all reasonable costs, attorneys' fees, expenses and liability incurred in connection with such claim or any action or proceeding brought thereon. In case any action or proceeding shall be brought against Authority and/or City by reason of any claim subject to indemnification hereunder, Bureau upon notice from Authority or City shall defend the same at Bureau's expense by counsel approved in writing by Authority and City (such approval not to be unreasonably withheld). Authority and City reserve the right to defend themselves, using joint counsel or each using separate counsel reasonably acceptable to Bureau. Bureau shall promptly notify Authority and City, in writing, of any claim or action filed, of whatever nature, arising out of the use or operation of the Subleased Premises by Bureau, its members, agents, contractors, employees or servants, which claim or action is reasonably expected to result in liability for the City or Authority. Bureau shall also promptly notify Authority and City if Bureau knows or has reason to believe a claim or action will be filed, of whatever nature, arising out of the use or operation of the Subleased Premises by Bureau, its members, agents, contractors, employees or servants, which claim or action could result in liability for the City or Authority. Section 11.2 Bureau's Insurance. During the period from the Possession Date through the Commencement Date, Bureau shall maintain the insurance coverage required of the Bureau under the Development Agreement. Bureau, at its sole cost and expense, shall obtain and maintain in full force and effect at all times from and after the Commencement Date and throughout the remaining Term of this Sublease and through any periods of extensions, the following insurance: 39 03- 206 (a) Commercial General Liability insurance on a comprehensive general liability coverage form, or its equivalent, including contractual liability, products and completed operations, liquor liability insurance (if applicable and on an event basis only as provided in Section 2.8), personal injury, and premises and operations coverage against all claims, demands or actions, bodily injury, personal injury, death or property damage occurring in, on or about the Subleased Premises or associated with Bureau's use of the Observation Deck and VIP Conference Center, with such limits as may be reasonably requested by Authority from time to time but not less than $2,000,000 per occurrence combined single limit for bodily injury and property damage. Authority and City shall be named as Additional Insured on the policy or policies of insurance. (b) "All Risk" property insurance coverage against loss or damage by fire, windstorm, flood with such endorsement for extended coverage, vandalism, hail, lightning, malicious mischief, water damage to contents, sprinkler leakage and special coverage, insuring one hundred percent (100%) of the replacement cost (including any costs which may be required to comply with applicable law) of Bureau's alterations, leasehold improvements, fixtures, equipment, furniture, personal property, trade fixtures and floor coverings in and about the Subleased Premises. The City and Authority shall be named as Loss Payees to the extent of their interest in any fixtures or equipment provided by either of them and used by Bureau. (c) Automobile liability insurance covering all owned, non -owned and hired vehicles used in conjunction with operations covered by this Sublease. The policy or policies of insurance shall contain such limits as may be reasonably requested by Authority from time to time, but not less than $300,000 for bodily injury and property damage. The requirements of this provision may be waived upon submission of a written statement that no automobiles are used to conduct Bureau's business. (d) Worker's Compensation in the form and amounts required by State law and/or the City's Risk Management Department. (e) Business income insurance in an amount not less than $2,000,000. (f) Authority reserves the right to amend the insurance requirements by the issuance of a notice in writing to Bureau, so long as such new or additional requirements are consistent with the requirements of landlords of buildings similar to the Building in the Greater Miami area. Bureau shall provide any other insurance reasonably required by Authority. 03- 206 (g) The policy or policies of insurance required shall be so written that the policy or policies may not be canceled or materially changed without thirty (30) days advance written notice to Authority. Said notice should be delivered to the address indicated herein for Authority or to such other address as may be designated by Authority from time to time. (h) A current Evidence of Insurance and Policy of Insurance evidencing the aforesaid required insurance coverage shall be supplied to Authority on or before the Commencement Date and a new Evidence and Policy shall be supplied to Authority at least thirty (30) days prior to the expiration, of each such policy. Insurance policies required above shall be issued by companies authorized to do business under the laws of the State of Florida, with the following qualifications as to management and financial strength: the company should be rated "A" as to management, and no less than class "X" as to financial strength, in accordance with the latest edition of Best's Key Rating Guide, or the company holds a valid Florida Certificate of Authority and is a member of the Florida Guarantee Fund. Receipt of any documentation of insurance by Authority or by any of its representatives which indicates less coverage than required does not constitute a waiver of Bureau's obligation to fulfill the insurance requirements herein. In the event Bureau shall fail to procure and place such insurance, Authority may, but shall not be obligated to, procure and place same, in which event the amount of the premium paid shall be paid by Bureau to Authority as Additional Rent upon demand and shall in each instance be collectible on the first day of the month or any subsequent month following the date of payment by Authority. Failure to pay such amount within the time frame provided shall constitute a default of this Sublease as provided in Section 19.1 below. Bureau's failure to procure insurance shall in no way release Bureau from its obligations and responsibilities as provided herein. (i) Prior to the Possession Date, Bureau shall deliver to the City and Authority such insurance policies as are required under the Development Agreement. Section 11.3 Authority's Insurance. Authority, at its sole cost and expense, shall obtain and maintain in full force and effect at all times from and after the Commencement Date and throughout the remaining Term of this Sublease and through any periods of extensions, the insurance required under Article XIV of the Interlocal Agreement, including without limitation "all risk" property insurance insuring one 41 03- 206 hundred percent (100%) of the replacement cost of the Building and other improvements comprising the Air Transportation Facility. Authority's "all risk" property insurance policy shall contain a deductible of no more than $25,000.00. Authority shall provide Bureau with insurance policies or other satisfactory evidence of the aforesaid required insurance coverage on or before the Commencement Date and at least thirty (30) days prior to the expiration of each such policy. Bureau shall be named as a "Loss Payee" on Authority's "All Risk" property insurance to the extent of Bureau's Construction Contribution. Such policy shall further provide that it may not be cancelled or materially changed without thirty (30) days advance written notice to Bureau. In the event Authority shall fail to procure and place any insurance required hereunder, Bureau may, but shall not be obligated to, procure and place same, in which event the amount of the premium paid shall be reimbursed by Authority to Bureau upon demand or credited against the next ensuing Rent payment(s) due hereunder. Failure to procure insurance as provided herein shall constitute a default of this Sublease as provided in Section 19.2 below. Authority's failure to procure insurance shall in no way release Authority from its obligations and responsibilities as provided herein. Section 11.4 Waiver of Subrogation. Bureau waives all rights to recover against Authority and City or their officers, employees, agents and representatives, for any damage arising from any cause covered by any insurance required to be carried by Bureau, or any insurance actually carried by Bureau, except in the case of a loss resulting from the gross negligence or willful misconduct of the City, Authority or anyone acting by, through or under either of them. Bureau shall cause its insurer(s) to issue appropriate waiver of subrogation rights endorsements to all policies of insurance carried in connection with the Subleased Premises, the Observation Deck and VIP Conference Center. Authority waives all rights to recover against Bureau and the City or their officers, employees, agents and representatives, for any damage arising from any cause covered by any insurance required to be carried by Authority under the Interlocal Agreement, except in the case of a loss resulting from the gross negligence or willful misconduct of the City, Bureau or anyone acting by, through or under either of them. Authority shall cause its insurer(s) to issue appropriate waiver of subrogation rights endorsements to all policies of insurance carried in connection with the Air Transportation Facility. 42 03- 206 Section 11.5 No Liability of Authority or City. Except to the extent caused by the gross negligence or willful misconduct of the City or the Authority, or anyone acting by, through or under either of them, and then only to the extent allowed by Applicable Law and subject to the provisions of Section 768.28 of the Florida Statutes (if applicable), Authority and City shall not be liable for injury or damage which may be sustained by any person, goods, wares, merchandise or other property of Bureau, or Bureau's employees, invitees, officers, agents, contractors and customers, or by any other person in or about the Subleased Premises or by reason of Bureau's use of the Observation Deck and VIP Conference Center caused by or resulting from any peril which may affect the Subleased Premises or such other areas, including, without limitation, fire, steam, electricity, gas, water or rain, which may leak or flow from or into any part of the Subleased Premises, the Observation Deck or VIP Conference Center, or from the breakage, leakage, obstruction or other defects of the pipes, sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures of the Subleased Premises, the Observation Deck or VIP Conference Center whether such damage or injury results from conditions arising upon the Subleased Premises, Observation Deck or VIP Conference Center, or upon other portions of the Air Transportation Facility, or from other sources. Authority and City shall not be liable for any damages arising from any act or neglect of: (a) any other Subtenant of the Air Transportation Facility; or (b) any officer, employee, agents, representative, customer, visitor or invitee of any such Subtenant. ARTICLE XII. DAMAGE AND DESTRUCTION Section 12.1 Destruction of Subleased Premises. If during the Term or any extension thereof, the Building shall be damaged by fire or other casualty (the "Casualty"), but the Subleased Premises shall not be thereby rendered wholly or partially untenantable, Authority shall, or shall cause the City, to repair such damage to substantially the condition that existed prior to the Casualty, subject to collection of sufficient insurance proceeds, and there shall be no abatement of Rent. If, as the result of Casualty, the Subleased Premises shall be rendered wholly or partially untenantable, then subject to the provisions of Section 12.2, Authority shall, or shall cause the City, to repair such damage to substantially the condition that existed prior to the Casualty and, provided such damage is not caused by the negligence of Bureau, its members, agents, concessionaires, officers, employees, 43 03- 206 contractors, licensees or invitees, all Rent (other than any Additional Rent due Authority by reason of Bureau's failure to perform any of its obligations hereunder) shall be abated proportionately as to the portion of the Subleased Premises rendered untenantable during the period of such untenantability. All such repairs shall be made by Authority (or the City, as applicable), to the extent insurance proceeds are available, subject to Bureau's responsibilities as set forth herein. Neither Authority nor the City shall be liable for interruption to Bureau's business or for damage to or replacement or repair of Bureau's personal property (including, without limitation, inventory, trade fixtures, floor coverings, furniture and other property removable by Bureau under the provisions of this Sublease) or to any leasehold improvements installed in the Subleased Premises, all of which damage, replacement or repair shall be promptly undertaken and completed by Bureau. Section 12.2 Authority's Option to Terminate Lease. If, as a result of Casualty, the (a) Subleased Premises are (i) damaged as a result of any cause which is not covered by Authority's insurance, unless (A) Authority or the City locate and secure additional funds which may be available from other Public Agencies, which Authority and the City agree to pursue in accordance with the terms of the Interlocal Agreement, or (B) Bureau secures sufficient funds to restore same (without imposing the obligation to do so), or (ii) damaged or destroyed in whole or in part during the last three (3) years of the Term, and the Building is also damaged to the extent that 50% or more of Building gross floor area is affected, or (b) if insurance proceeds received are insufficient to complete the repairs (unless (A) Authority or the City locate and secure additional funds as hereinabove provided, or (B) Bureau secures sufficient funds to cover the shortfall, which it may but shall not be obligated to do), then, in any of such events, Authority may elect to terminate this Sublease by giving to Bureau notice of such election within eighty (80) days after the occurrence of such event. If such notice is given, the rights and obligations of the parties shall cease as of the date of such notice, and Rent (other than any Additional Rent due Authority by reason of Bureau's failure to perform any of its obligations hereunder) shall be adjusted as of the date of such termination. Notwithstanding the foregoing, Authority shall advise Bureau within forty (40) days following the Casualty whether sufficient insurance proceeds are available to cover the cost of restoration and, if not, the Parties shall use good faith reasonable efforts to secure additional funds within eighty-five (85) 44 03- 206 days after the Casualty to allow for the restoration of the Building to substantially the condition that existed prior to the Casualty. Section 12.3 Demolition of Building. If the Building shall be so substantially damaged that it is reasonably necessary in Authority's sole judgment to demolish such Building for the purpose of reconstruction, Authority may (or may cause the City to) demolish the same in which event the Rent shall be abated to the same extent as if the Subleased Premises were rendered untenantable by a Casualty. All restoration, repairs and reconstruction of the Building and other improvements under this Article shall be performed by Authority or the City (as applicable) substantially in compliance with the original plans, specifications and drawings of the Building (modified as necessary to cause same to comply with any changes in Applicable Laws), the terms and conditions of this Sublease governing repairs and Alterations, and Article XV of the Interlocal Agreement. Section 12.4 Insurance Proceeds. Unless Authority elects not to restore and rebuild the Air Transportation Facility following a Casualty and terminates this Sublease pursuant to Section 12.2, Authority shall disburse and apply any insurance proceeds received by Authority to the restoration and rebuilding of the Air Transportation Facility in accordance with Section 12.1 hereof. If Authority elects not to restore and rebuild the Air Transportation Facility following a casualty pursuant to Section 12.2, the insurance proceeds payable to Authority or the City with respect to the Air Transportation Facility (excluding proceeds payable to Bureau pursuant to Section 11.2) shall be payable as follows: (i) First, to the City to raze the Building and other improvements on the Property and clear the site; and (ii) Next, to Bureau and FDOT in proportion to the unamortized portion of their respective construction contributions (or the portion thereof required to be reimbursed under the JPAs, as applicable), assuming amortization of each such contribution on a straight-line basis over thirty (30) years (e.g., if Bureau's Construction Contribution is $7,000,000, amortized over thirty (30) 45 03- 206 years, the annual depreciation is $233,333. In the event of a casualty in year 20 and the Building is not reconstructed, Bureau would receive $2,333,330 [$233,333 x 10 years] to the extent insurance proceeds are sufficient); provided, however, that if (a) FDOT requires reimbursement and the insurance proceeds are not sufficient to reimburse both parties, FDOT shall be reimbursed prior to Bureau, and (b) FDOT does not require reimbursement of any of its construction contribution, Bureau shall be reimbursed prior to any other party, subject to clause (i) above; and (iii) The balance, if any, to the City. ARTICLE XIII. BUILDING NAME Section 13.1 Name of Building. It is of material importance to Bureau due to its reputation and standing in the community that the Building maintain a professional and reputable name. For so long as Bureau occupies more than fifty percent (50%) of the total Rentable Square Feet of the Building, (i) the Building shall be known as "Greater Miami Visitors and Aviation Center", and (ii) provided that no Event of Bureau's Default has occurred and is then continuing, any so called "naming rights" sold, licensed or granted by Authority under Section 6.5 of the Interlocal Agreement shall include the name "Greater Miami Visitors and Aviation Center" and shall be subject to the prior written approval of Bureau, which approval shall not be unreasonably withheld and shall be granted or denied within fifteen (15) days of the Authority's request therefor. Should the Bureau occupy less than fifty percent (50%) of the total Rentable Square Feet of the Building, Authority shall have the right to rename the Building without the consent of the Bureau. 46 �J3- 206 ARTICLE XIV. EMINENT DOMAIN Section 14.1 Eminent Domain. (a) Permanent Taking If the whole or a substantial portion of the Air Transportation Facility is taken under power of eminent domain or sold, transferred or conveyed in lieu thereof, this Sublease shall terminate as to the part so taken on the date Bureau is required to yield possession thereof to the condemning authority. If this Sublease is not terminated under the preceding provision, Authority shall, subject to collection of awards made to Authority, make such repairs and alterations as may be necessary in order to restore the part not taken to useful condition and all Rent (other than Additional Rent due to Authority by reason of Bureau's failure to perform any of its obligations hereunder) shall be reduced in the same proportion as the floor area of the Subleased Premises so taken bears to the total floor area of the Subleased Premises. If the aforementioned taking affects the primary purpose of this Sublease as outlined in Section 3.1 hereof, either party may terminate this Sublease as of the date when Bureau is required to yield possession by giving notice to that effect within thirty (30) days after such date. If twenty-five (25%) or more of the Air Transportation Facility is taken or sold, transferred or conveyed in lieu thereof, and Authority does not, in the good faith opinion of Authority, render it economically feasible to effect restoration thereof for its intended purpose, Authority may terminate this Sublease as of the date on which possession thereof is required to be yielded to the condemning authority, by giving notice of such election within thirty (30) days after such date. If any such notice of termination is given pursuant to this Section, this Sublease and the rights and obligations of the parties hereunder shall cease as of the date of such notice and Rent (other than any Additional Rent due Authority by reason of Bureau's failure to perform any of its obligations hereunder) shall be adjusted as of the date of such termination. (b) Temporary Taking In the event of temporary taking of all or any portion of the Subleased Premises for a period of thirty (30) days or less, then this Sublease shall not terminate but the Base Monthly Rent and Airport O&M Expense Rent shall be abated for the period of such taking in proportion to the ratio of the floor area of the Subleased Premises so taken to that of the remaining floor 47 03- 206 area of the Subleased Premises. Authority shall be entitled to receive the entire award made in connection with any such temporary taking. Section 14.2 Condemnation Awards. All compensation awarded for any taking of the Subleased Premises or the Air Transportation Facility, shall be payable in the same manner as insurance proceeds under the last sentence of Section 12.4. Nothing contained herein shall prevent Bureau from applying for reimbursement from the condemning authority (if permitted by law) for moving expenses, or Bureau's loss of business, or loss of Bureau's good will, or injury to Bureau's improvements, or on account of any cost or loss Bureau may sustain in the removal of Bureau's trade fixtures, equipment and furnishings, or as a result of any alterations, modifications or repairs that may be reasonably required by Bureau in order to place the remaining portion of the Subleased Premises not taken in a suitable condition for the continuance of Bureau's occupancy, or for Bureau's leasehold interest, but if and only if such action shall not reduce the amount of the award or other compensation otherwise recoverable from the condemning authority by City as the owner of the fee simple estate in the Air Transportation Facility. ARTICLE XV. ASSIGNMENTS AND SUBLETTING Section 15.1 Assignment and Subletting. Bureau shall not, at any time during the Term of this Sublease, transfer, assign, sublet, mortgage, pledge or otherwise encumber this Sublease, the term or estate hereby granted, or any interest hereunder, nor enter into any license or concession agreements with respect thereto, nor permit any third party or parties other than Bureau, its authorized agents, employees, invitees and visitors to occupy the Subleased Premises or any portion thereof (hereinafter individually and collectively referred to as a "Transfer"), without first procuring the written consent of the City and Authority, which consent shall not be unreasonably withheld, conditioned or delayed. Any such attempted or purported Transfer, without the City's and Authority's prior written reasonable consent, shall be void and of no force or effect, shall not confer any interest or estate in the purported transferee ("Transferee"), shall constitute an automatic default under this Sublease for which there shall be no prior notice or cure period, and permit Authority, at its election, to terminate this Sublease. Bureau agrees that the use by any assignee or subtenant of the Subleased Premises must comply with the Deed Restrictions and the JPAs. Authority and the City agree to 48 03- 206 cooperate with and assist Bureau in obtaining confirmation from the State of Florida and FDOT that a proposed use by a Transferee complies with the Deed Restrictions and JPAs, respectively, provided that Bureau shall be solely responsible for all costs and expenses associated therewith. Notwithstanding the foregoing, Bureau may, without the consent of the City or Authority, assign this Sublease to, or sublet all or a portion of the Subleased Premises to (i) any entity resulting from a merger or consolidation of Bureau or its operations with another entity, or (ii) any entity resulting from a reorganization or restructuring of Bureau. Such assignment or subletting is subject to the Property continuing to be used for the purpose authorized under this Sublease. Although the City's and Authority's consent is not required for Transfers under this paragraph, Bureau shall provide written notice to the City and Authority of such Transfer not less than thirty (30) days prior to the effective date of such Transfer, which notice shall be accompanied by documentation reflecting that the proposed Transfer falls within the parameters of a permitted Transfer under this paragraph. The provisions of Section 15.2 constitute the sole means by which the City's and Authority's consent may be requested for any Transfer not expressly permitted under the terms of this Sublease. It is agreed that all terms and conditions of this Sublease shall extend to and be binding on all Transferees. Bureau shall be liable for acts and omissions by any Transferee affecting this Sublease. Authority reserves the right to directly terminate any Transferee for any cause for which Bureau may be terminated. Bureau shall reimburse to Authority, as Additional Rent, all costs and expenses, including reasonable attorneys' fees, which Authority incurs by reason of or in connection with a Transfer, and all negotiations and actions with respect thereto; such Additional Rent to be due and payable within thirty (30) days of receipt of a statement of such costs and expenses from Authority. Section 15.2 Procedure for Transfer. Should Bureau desire to make a Transfer not expressly permitted under Section 15.1, Bureau shall, in each instance, give written notice of its intention to do so to the City and Authority at least forty-five (45) days prior to the commencement date of any such proposed Transfer, specifying in such notice the nature of such proposed Transfer and the proposed date thereof and specifically identifying the proposed Transferee. Such notice shall be accompanied, in the case of a Sub -sublease, license, concession or permit agreement, by a copy of the proposed 49 iJ3- 206 Sub -sublease, license, concession or permit agreement and any other documents or financial information (including, if available, three years audited financial statements or certified financial statements) and such covenants and representations of proposed use of the Subleased Premises, as the City and Authority may reasonably require in order to make a determination as to the suitability of the Transferee and the compliance of the proposed use with the Deed Restrictions, the JPAs and Legal Requirements. The City and Authority shall, within thirty (30) days after its receipt of such notice of a proposed Transfer from Bureau, by mailing written notice to Bureau of its intent to do so, either (i) withhold consent to the Transfer, accompanied by an explanation of the reasons for denial, which reasons may include the failure to obtain confirmation from the State of Florida and FDOT that a proposed use by a Transferee complies with the Deed Restrictions and JPAs, respectively, or (ii) consent to such Transfer upon the terms and subject to the conditions provided for in this Article, or (iii) recapture the space which is the subject of such Transfer, whereupon this Sublease shall terminate with respect to such space as of the proposed date of such Transfer and the Subleased Premises shall be deemed modified automatically to exclude such space. Bureau acknowledges and agrees that the imposition of the conditions described in this Article XV as a condition of the City's and Authority's consent is reasonable. Section 15.3 Acceptance of Rent from Transferee. The acceptance by Authority of the payment of Rent following any Transfer prohibited by this Article shall not be deemed to be consent by Authority to any such Transfer, nor shall the same be deemed to be a waiver of any right or remedy of Authority hereunder. Section 15.4 Adjustment to Rents as a Result of a Transfer. No sublease of any portion of the Subleased Premises or assignment of this Sublease or any interest hereunder shall deprive Authority of any Rent to which it is otherwise entitled hereunder. In the event of a Transfer, Authority shall receive a fee equal to fifty percent (50%) of the Bureau's profit from such Transfer, after payment of all expenses associated with the Transfer (including without limitation the cost of alterations required to accommodate multi - tenant occupancy of the Subleased Premises). For purposes hereof, the Bureau's profit from any Transfer shall not include any amount paid by the Transferee as reimbursement of the Bureau's Construction Contribution, whether through an increased rental rate, lump sum payment, installment payment or other method of payment. Reimbursement of Bureau's Construction Contribution shall be measured based upon the unamortized portion of Bureau's capital 50 03- 206 investment at the time of Transfer, assuming amortization on a straight-line basis over a period of thirty (30) years. Section 15.5 No Release of Bureau. No Transfer permitted by this Article XV shall release Bureau or change Bureau's primary liability to pay the Base Monthly Rent, Airport O&M Expense Rent, Additional Rent and to perform all other obligations of Bureau under this Sublease. Authority's acceptance of rent from any other person is not a waiver of any provision of this Article XV. Consent to one transfer is not consent to any subsequent transfer. If Bureau's Transferee (other than the City or Authority or any of their respective agencies or departments if it is the Transferee) defaults under this Sublease, Authority may proceed directly against Bureau without pursuing remedies against the Transferee, or against the Transferee and then also proceed directly against Bureau under this Sublease. Any action by Authority against Bureau shall not release the Transferee. Authority may consent to subsequent Transfers or modifications of this Sublease by Bureau's Transferee, without notifying Bureau or obtaining its consent. Such action shall not relieve Bureau's liability under this Sublease or the liability of the Transferee. Section 15.6 Event of Bankruptcy. If this Sublease is assigned to any person or entity pursuant to the provisions of the Bankruptcy Code, any and all monies or other consideration payable or otherwise to be delivered in connection with such assignment shall be paid or delivered to Authority, shall be and remain the exclusive property of Authority, and shall not constitute the property of Bureau or of the estate of Bureau within the meaning of the Bankruptcy Code. Any and all monies or other considerations constituting Authority's property under this Section not paid or delivered to Authority shall be held in trust for the benefit of Authority and shall be promptly paid or delivered to Authority. Any person or entity to which this Sublease is assigned pursuant to the provision of the Bankruptcy Code shall be deemed without further act or deed to have assumed all of the obligations arising under this Sublease on and after the date of such assignment. ARTICLE XVI. OWNERSHIP OF IMPROVEMENTS Section 16.1 Ownership of Improvements. As of the Possession Date and throughout the Term, title to the Air Transportation Facility, the Building, the Subleased Premises, and all buildings and improvements on the 51 03- 206 Property shall be vested in City. Furthermore, title to all permanent Alterations made in or affixed to the Subleased Premises during the Term, whether or not by or at the expense of Bureau, shall, unless otherwise provided by written agreement, immediately upon their completion become the property of City and shall remain and be surrendered with the Subleased Premises. Any furniture, furnishing, equipment or other articles of movable personal property owned by Bureau and located in the Subleased Premises, shall be and shall remain the property of Bureau and may be removed by it at any time during the term of this Sublease so long as Bureau is not in default of any of its obligations under this Sublease and the same have not become a part of the freehold, and so long as such removal does not materially affect Bureau's ability to use said premises and conduct its operations as provided herein. However, if any of Bureau's property is removed and such removal causes damage to the Subleased Premises, Bureau shall repair such damage at its sole cost and expense. Should Bureau fail to repair any damage caused to the Subleased Premises within thirty (30) days after receipt of written notice from Authority directing the required repairs, Authority shall cause the Subleased Premises to be repaired at the sole cost and expense of Bureau. Bureau shall pay Authority the full cost of such repairs within thirty (30) days of receipt of an invoice indicating the cost of such required repairs. Failure to pay such invoice shall constitute a default of this Sublease as provided in Section 19.1 below. Any property belonging to Bureau and not removed by Bureau at the expiration or earlier termination of the Sublease, shall, at the election of Authority, be deemed to be abandoned by Bureau, and Authority may keep or dispose of such property and restore the premises to good order within ten (10) days after billing therefor. At the expiration of the Term of this Sublease, Bureau shall deliver to Authority the keys and combination to all safes, cabinets, vaults, doors and other locks left by Bureau on the Subleased Premises. ARTICLE XVII. SIGNAGE Section 17.1 Signs. Subject to the City's and Authority's prior written approval, in their reasonable discretion, and provided all signs are in keeping with the quality, design and style of the Air Transportation Facility, Bureau, at its sole cost and expense, may install identification signage 52 go- 906 anywhere in the Offices including in the elevator lobby of the Offices, provided that such signs are not visible from the exterior of the Building. Bureau must further obtain approval from all governmental authorities having jurisdiction, and must comply with all Applicable Laws and requirements including those requirements set forth in the City of Miami Code and Zoning Ordinance. Upon the expiration or earlier termination of this Sublease, for any reason, Bureau shall, at its sole cost and expense, remove and dispose of all signs located on the Subleased Premises. Signage for the Visitors Center and Aviation Museum and exterior signage for Bureau shall be included in the scope of work during construction of the Building and shall be approved by the City under the Development Agreement. Section 17.2 Watson Island Signage System. Bureau understands that the City desires to provide a neat and consistent look to all directional signs placed on the rights-of-way adjacent to Watson Island and on Watson Island through an island -wide signage system. Accordingly, the City will, at the City's expense, develop a pathfinder/directional-type signage system, directing visitors to the various sites on Watson Island, by a graphic design firm selected by the City. The cost of fabrication and installation of the City's pathfinder/directional-type signage system for Watson Island shall be shared by all of the parties benefiting from the signage based on the number of users thereof, and Bureau agrees to pay its pro rata share thereof. Bureau's obligations hereunder are purely monetary, and Bureau shall have no responsibility whatsoever for the design, fabrication, installation or approval of the directional signage system. Notwithstanding the foregoing, until such time as a uniform directional signage plan is developed, subject to approval of the City Manager of the City of Miami (which shall not be unreasonably withheld or delayed) as to design, location, size and materials, Bureau, at its sole cost and expense, shall be permitted to install two directional signs (one on the south side and one on the north side of Watson Island) which signs may be located on the roadway entrance from MacArthur Causeway to the Property, so long as such signage is outside state road rights- of-way and other areas leased or to be leased to a third party. Bureau shall, at its sole cost and expense, be required to maintain such signage in good condition and repair at all times. Upon the adoption of a uniform directional signage program, Bureau shall, at its sole cost and expense, remove and dispose of all existing signs and shall repair any damage caused by such removal. 53 93- 206 Section 17.3 Pre -Commencement Date Signage. From and after the Possession Date Bureau, at its sole cost, shall have the right and license to keep and maintain a sign on the Property which publicizes the Property as "The Future Home of the Greater Miami Visitors and Aviation Center". Said sign shall be installed in a location mutually acceptable to the parties and the City, and shall be installed and maintained by Bureau, at its sole cost, under valid permits and in compliance with all Legal Requirements. Bureau shall indemnify and hold the City and Authority harmless from any claims, causes of action, fines, penalties or levies made against either of them by reason of Bureau's installation of the sign on the Property. The sign shall be subject to the City's approval, which shall not be unreasonably withheld, conditioned or delayed. Section 17.4 Watson Island Association. Bureau acknowledges that Authority or the City may organize an association (the "Association") for the promotion and marketing of Watson Island, maintenance and administration of common areas in Watson Island and enforcement of existing and future rules and regulations affecting the island, including but not limited to, landscaping and directional signage guidelines. Bureau agrees to participate in, and contribute financially to the establishment and operation of, the Association, so long as the association assessments are reasonable and do not impose an unreasonable financial burden on Bureau. The costs passed through to Bureau through the Association shall not include the cost of installation of infrastructure (i.e., roadways, utilities and the like) on Watson Island under any circumstances. The amount of Bureau's contribution, and that of all other occupants or tenants in Watson Island, shall be established by the City in an equitable, non-discriminatory and reasonable manner. The Parties acknowledge that some of the existing tenants of Watson Island are not currently obligated to participate in the Association. In no event shall Bureau's contribution include (i) costs and expenses associated with or relating solely to the tenants of portions of Watson Island not participating in the Association, or (ii) assessments that would have been made against such non -participating tenants if they had agreed to participate in the Association. Furthermore, the Parties agree that Bureau's share of Association assessments and charges shall not exceed the pro rata share that would have been passed through to the Bureau assuming that all tenants of Watson Island had participated in the Association. The City or Authority (as applicable) shall disclose to Bureau in writing the manner in which it has established Bureau's contribution and 54 03— 246 the basis therefor. Bureau shall have the right to review the invoices, paid receipts and other supporting documentation for the costs and expenses for which it is being assessed by the Association for a period of ninety (90) days following the date Bureau is notified of Bureau's contribution, provided that said 90 -day period shall extend one day for each day which the City or Authority (as applicable) fails to provide or denies access to the supporting documentation required hereunder. Bureau shall also be entitled to obtain full disclosure of the sources of funding and their anticipated disposition each year prior to the establishment of an assessment or contribution amount which will affect Bureau. ARTICLE XVIII. RIGHT TO TERMINATE Section 18.1 Right to Terminate. Either Party has the unconditional right to cancel this Sublease in the event that the Development Agreement is terminated, by giving the other party ten (10) Business Days prior notice of its intent to cancel this Sublease. ARTICLE XIX. DEFAULT PROVISIONS Section 19.1 Events of Default - Bureau (a) Events of Bureau's Default. Each of following events is defined as an Event of Bureau's Default: (i) The failure of Bureau to pay any installment of Rent or Additional Rent, when due and the continuance of the failure for a period of ten (10) days after notice in writing from Authority to Bureau; (ii) The failure of Bureau to perform any of the other covenants, conditions and agreements of this Sublease on the part of Bureau to be performed, and the continuance of the failure for a period of thirty (30) days after notice in writing (which notice shall specify the respects in which Authority contends that Bureau has failed to perform any of 55 ,33- 206 the covenants, conditions and agreements) from Authority to Bureau, unless with respect to any default which cannot be cured within thirty (30) days, Bureau, or any person holding by, through or under Bureau, in good faith, within thirty (30) days after receipt of written notice, (x) shall have commenced and continued diligently to reasonably prosecute all action necessary to cure the default and (y) diligently continues thereafter its efforts to cure the default; (iii) The filing of an application by Bureau: (A) for a consent to the appointment of a receiver, trustee or liquidator of itself or all its assets; (B) of a voluntary petition in bankruptcy or the filing of a pleading in any court of record admitting in writing its inability to pay its debts as they come due; (C) of a general assignment for the benefit of creditors; or (D) of an answer admitting the material allegations of, or its consenting to, or defaulting in answering, a petition filed against it in any bankruptcy proceeding; or (iv) The entry of an order, judgment or decree by any court of competent jurisdiction, adjudicating Bureau as bankrupt, or appointing a receiver, trustee or liquidator of it or of its assets, and this order, judgment or decree continuing unstayed and in effect for any period of ninety (90) consecutive days, or if this Sublease is taken under a writ of execution, or if Bureau shall admit in writing its inability to pay its debts as they become due; or (v) The Subleased Premises are levied on by any revenue officer or similar officer and such levy is not released or bonded within thirty (30) days of its filing; or 56 03- 206 (vi) Bureau shall default in securing or renewing the insurance required by this Sublease within the time periods provided in and otherwise in conformity with Article XI of this Sublease. In the event this Sublease is assumed by or assigned to a trustee pursuant to the provisions of the Bankruptcy Code, and the trustee shall cure any default under this Sublease and shall provide adequate assurances of future performance of this Sublease as are required by the Bankruptcy Code (including, but not limited to, the requirement of Section 365(b)(1)) [referred to as "Adequate Assurances"]), and if the trustee does not cure such default and provide such Adequate Assurances under the Bankruptcy Code within the applicable time periods provided by the Bankruptcy Code, then this Sublease shall be deemed rejected automatically and Authority shall have the right immediately to possession of the Subleased Premises and shall be entitled to all remedies provided by the Bankruptcy Code for damages for breach or termination of this Sublease. (b) Authority's Remedies in Event of Bureau's Default. Authority may treat any one or more of the Event(s) of Bureau's Default as a breach of this Sublease, and thereupon at its option, without further notice or demand of any kind to Bureau or any other person, Authority shall have, in addition to every other right or remedy existing at law or equity, do any one or more of the following: (i) Notwithstanding Bureau's Construction Contribution, and any credit of same against Fair Market Rent, Authority may bring an action in court to terminate Bureau's right of possession under this Sublease and to collect any other sum of money and damages due under the terms of this Sublease. In such event, Bureau shall not be entitled to reimbursement for the unamortized portion of Bureau's Construction Contribution which has not been reimbursed. Notwithstanding the foregoing, the Parties agree that Bureau shall have the right to cure any Event of Bureau's Default with respect to the payment of Rent, provided that 57 03- 206 Bureau pays to Authority, in addition to the full amount of Rent due, interest at the rate of fifteen percent (15%) on such amount due for the period commencing on the date of the Event of Default through the date of such payment (in lieu of the Prime Interest Rate under Section 6.5), and all reasonable court costs and attorneys' fees. (ii) Perform, on behalf of and at the expense of Bureau, any obligation of Bureau under this Sublease which Bureau has failed to perform the cost of which performance by Authority, together with interest thereon at the rate of fifteen percent (15%) from the date of such expenditure, shall be deemed Additional Rent and shall be payable by Bureau to Authority upon demand. Bureau agrees that Authority shall not be liable to Bureau for any damage resulting to Bureau as a result of such action. (iii) Terminate Bureau's rights under this Sublease if, within thirty (30) days after giving written notice of termination, Bureau fails to cure the Event of Bureau's Default; provided, however, that such rights and obligations as are expressly intended to survive the termination of this Sublease shall survive any termination under this Section, and provided, further, that the parties hereto shall remain liable for the performance of their respective obligations under this Sublease to the extent incurred prior to the date of such termination. (c) Waivers and Surrenders to Be in Writing. The receipt of Rent by Authority, with knowledge of any breach of this Sublease by Bureau or of any default on the part of Bureau in the observance or performance of any of the conditions, agreements or covenants of this Sublease, shall not be deemed to be a waiver of any provision of this Sublease. Notwithstanding the foregoing, Authority shall use reasonable efforts to notify Bureau forthwith in writing of any 58 tli3- 206 breach of this Sublease which Authority has knowledge of, provided that no failure on the part of Authority to provide such notice shall affect Authority's right to enforce its remedies hereunder with respect to such breach, subject to the specific notice and cure periods for such breach expressly stated herein. No failure on the part of Authority to enforce any covenant or provision contained in this Sublease, or any waiver of any right under it by Authority, unless in writing, shall discharge or invalidate such covenant or provision or affect the right of Authority to enforce it in the event of any subsequent breach or default. No covenant or condition of this Sublease shall be deemed to have been waived by Authority unless the waiver is in writing. Consent of Authority to any act or matter must be in writing and shall apply only with respect to the particular act or matter to which the consent is given and shall not relieve Bureau from the obligation, wherever required under this Sublease, to obtain the consent of Authority to any other act or matter. The receipt by Authority of any Rent or any other sum of money or any other consideration paid by Bureau after the entry of a judgment granting possession of the Subleased Premises to Authority, shall not reinstate or continue the Term demised unless so agreed to in writing. (d) Repeated Defaults. Notwithstanding any provision hereof to the contrary, if more than twice during any twelve (12) month period during the term of this Sublease, Bureau fails to satisfy or comply with the same or substantially the same requirements or provisions under this Sublease, including the nonpayment when due of Rent of any kind or nature, then at Authority's election, Bureau shall not have any right to cure such repeated failure to satisfy or comply, the terms and conditions of the section of this Sublease entitled, "EVENTS OF DEFAULT - BUREAU", unless such repeated default (other than a default in the payment of Rent when due) arises from acts of God or results from causes or conditions not attributable, directly or indirectly, to Bureau, its members, employees, agents or others within Bureau's control. In the event of Authority's election not to allow a cure of a repeated failure to satisfy or comply, Authority shall have all of the rights for an uncured default provided for in the section of this Sublease entitled "EVENTS OF DEFAULT - BUREAU". Section 19.2 Events of Default - Authority (a) Events of Authority's Default. The failure of Authority to perform any of the covenants, conditions and agreements of this Sublease which are to be performed by Authority and the continuance of such failure for a period of thirty (30) days after notice thereof in writing 59 ;J3-- 206 from Bureau to Authority (which notice shall specify the respects in which Bureau contends that Authority has failed to perform any of such covenants, conditions and agreements), and unless such default be one which cannot be cured within thirty (30) days and Authority within such thirty (30) day period shall have commenced and thereafter shall continue diligently to prosecute all actions necessary to cure such defaults, such failure shall constitute an "Event of Authority's Default". (b) Bureau's Remedies in Event of Authority's Default. If an Event of Authority's Default shall occur, Bureau, may treat any one or more of the Event(s) of Authority's Default as a breach of this Sublease, and thereupon at its option, by serving written notice on Authority, Bureau shall have, in addition to every other right or remedy existing at law or equity (but subject to compliance with all Applicable Laws, and the grace periods and cure periods set forth within this Sublease), one or more of the following remedies: (i) The right to a writ of mandamus, specific performance, injunction or other similar relief, available to it under applicable law against Authority (including any or all of the members of its governing body, and its officers, agents or representatives); provided, however, that in no event shall any member of such governing body or any of its officers, agents or representatives be personally liable for any of Authority's obligations to Bureau hereunder. (ii) The right to obtain actual damages resulting from such default (but not consequential or special damages). (iii) The right to remedy or attempt to remedy the default and deduct the reasonable cost thereof from the Rent next coming due hereunder. Notwithstanding anything in this Article XIX to the contrary, Bureau shall have the right to remedy any default by the Authority under this Sublease that, in Bureau's good faith and reasonable judgment, creates a hazardous or emergency situation at the Building 03- 206 or within the Subleased Premises, without advance notice to the Authority or the expiration of any cure period, provided that Bureau shall notify Authority in writing of any action taken by it hereunder as soon as reasonably practicable. (iv) The right to terminate this Sublease and all of Bureau's obligations hereunder; provided, however, that such rights and obligations as are expressly intended to survive the termination of this Sublease shall survive any termination under this Section, and provided, further, that the parties hereto shall remain liable for the performance of their respective obligations under this Sublease to the extent incurred prior to the date of such termination. Section 19.3 Mitigation. Authority and Bureau hereby expressly acknowledge and agree that each shall have an affirmative obligation to mitigate their respective damages as a consequence of a default by the other. ARTICLE XX. NOTICES Section 20.1 Notice. All notices or other communications which shall or may be given pursuant to this Sublease shall be in writing and shall be delivered by personal service or by certified mail addressed to the Parties at their respective addresses indicated below or as the same may be changed in writing from time to time. Such notice shall be deemed given on the day on which personally served, or if by certified mail, on the fifth day after being posted or the date of actual receipt, whichever is earlier. 61 il3- 206 NOTICE TO AUTHORITY: Miami Sports & Exhibition Authority 701 Arena Boulevard Miami, Florida 33136 Attn: Executive Director WITH COPIES TO: City of Miami 3500 Pan American Drive Miami, Florida 33133 Attn: City Manager City of Miami Department of Economic Development Miami Riverside Building, 3rd Floor 444 S.W. 2"d Avenue Miami, Florida 33130 Attn: Director City of Miami Miami Riverside Building, 9`" Floor 444 S.W. 2"d Avenue Miami, Florida 33130 Attn: City Attorney Akerman Senterfitt One Southeast Third Avenue 28`h Floor Miami, Florida 33131 Attn: Ronald Kriss, Esq. NOTICE TO BUREAU: Greater Miami Convention & Visitors Bureau 701 Brickell Avenue, Suite 2700 Miami, Florida 33131 Attn: President and CEO WITH COPY TO: Greenberg Traurig, P.A. 1221 Brickell Avenue Miami, Florida 33131 Attn: Lucia A. Dougherty, Esq. Nancy B. Lash, Esq. Each Party agrees promptly to deliver a copy of each notice, demand, request, consent or approval by such Party to the City under the Interlocal Agreement or this Sublease, and promptly to deliver to the other Party a copy of any notice, demand, request, consent or approval received from the City pursuant to the Interlocal Agreement. Such copies shall be delivered in the same manner as notices under this Section 20.1. 62 ^J3- 206 ARTICLE XXI. QUIET ENJOYMENT Section 21.1 Quiet Enjoyment. Authority represents, warrants and covenants that Bureau, upon paying the Rent and all other charges, and performing all the covenants and conditions of this Sublease, shall lawfully and quietly hold, occupy and enjoy the Subleased Premises during the Term without hindrance or molestation by Authority or any Persons claiming under Authority, subject to the terms and conditions of this Sublease. ARTICLE XXII. ESTOPPEL CERTIFICATES Section 22.1 Estoppel Certificates. Authority and Bureau each agree at any time and from time to time, so long as this Sublease shall remain in effect, upon not less than ten (10) days prior written request by the other Party, to execute, acknowledge and deliver to the other Party a statement in writing certifying that this Sublease is unmodified and in full force and effect (or if there have been modifications, that it is in full force and effect as modified, stating the modifications) and the dates to which the Rent and other charges have been paid in advance, if any, and stating whether any default under the terms of this Sublease is known by, or any notice of default has been served by, the Party giving the certificate. ARTICLE XXIII. REMEDIES CUMULATIVE Section 23.1 Remedies Cumulative. No remedy conferred upon or reserved to Authority or Bureau shall be considered exclusive of any other remedy, but shall be cumulative and shall be in addition to every other remedy given under this Sublease Agreement or existing at law or in equity or by statute; and every power and remedy given by this Sublease Agreement to Authority or Bureau may be exercised from time to time and as often as occasion may arise, or as may be deemed expedient by Authority or Bureau. No delay or omission of Authority or Bureau to exercise any right or power arising from any default shall impair any right or power, nor shall it be construed to be a 63 03" 20+; waiver of any default or any acquiescence in it. The rights of Authority under this Sublease shall be cumulative and the failure on the part of Authority to exercise properly any rights given hereunder shall not operate to forfeit any of the said rights. Section 23.2 Waiver of Remedies Not To Be Inferred. No waiver of any breach of any of the covenants or conditions of this Sublease Agreement shall be construed to be a waiver of any other breach or to be a waiver of, acquiescence in, or consent to any further or succeeding breach of the same or similar covenant or condition. ARTICLE XXIV. SURRENDER AND HOLDING OVER Section 24.1 Surrender at End of Term. On the last day of the Term, Bureau shall peaceably and quietly leave, surrender and deliver the entire Subleased Premises to Authority, together with any and all alterations, changes, additions and other improvements made upon the Subleased Premises, and together with any and all improvements, furniture, trade fixtures, machinery, equipment or other personal property of any kind or nature (except for those improvements and property which Bureau is entitled to remove under this Sublease), which Bureau may have installed or affixed to the Subleased Premises for use in connection with the operation and maintenance of the Subleased Premises (whether or not the property is deemed to be fixtures), in their "as is" condition, free and clear of any and all subleasehold mortgages, liens, encumbrances and claims. If the Subleased Premises are not so surrendered, Bureau shall repay Authority and the City for all expenses which Authority or the City may incur by reason of it, and in addition Bureau shall indemnify, defend and hold harmless Authority and the City from and against all claims made by any succeeding tenant against Authority, founded upon delay occasioned by the failure of the Bureau to surrender the Subleased Premises. Section 24.2 Rights Upon Holding Over. At the termination of this Sublease Agreement by lapse of time or otherwise, Bureau shall yield up immediate possession of the Subleased Premises to Authority and, failing so to do, agrees, at the option of Authority, to pay to Authority for the whole time such possession is withheld a sum per day equal to two hundred percent (200%) times 1/365`h of the aggregate of the Rent paid or payable to Authority for the prior Sublease Year as set forth in Article VI. 64 i� = ?z The provisions of this Article shall not be held to be a waiver by Authority of any right of entry or reentry as set forth in this Sublease Agreement, nor shall the receipt of a sum, or any other act in apparent affirmance of the tenancy, operate as a waiver of the right to terminate this Sublease Agreement and the term granted for the period still unexpired for any breach of Bureau under this Sublease Agreement. ARTICLE XXV. MISCELLANEOUS PROVISIONS Section 25.1 Ingress and Egress. Subject to rules and regulations, statutes and ordinances and terms of this Sublease governing the use of the facility, Bureau, its agents, representatives, members, visitors and invitees shall have ingress and egress to and from the Subleased Premises. Section 25.2 Successors and Assi ns. This Sublease shall be binding upon the parties herein, their heirs, executors, legal representatives, successors and assigns. Section 25.3 Assignability and Binding Effects. Subject to all provisions respecting the rights of assignment or subleasing, this Sublease Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto. Section 25.4 Amendments. Authority and Bureau by mutual agreement shall have the right but not the obligation to amend this Sublease. Such amendments shall be effective only when signed by Authority and Bureau and shall be incorporated as a part of this Sublease. Any amendment to any substantive provision of this Sublease shall be subject to the prior written consent of the City Manager of the City of Miami, unless the City Attorney determines, in his or her sole discretion, that the prior consent of the City Commission of the City of Miami is required. Section 25.5 Award of Agreement. Bureau warrants that it has not employed or retained any person employed by Authority to solicit or secure this Sublease and that it has not offered to pay, paid, or agreed to pay any person employed by Authority any fee, commission, percentage, brokerage fee, or gift of any kind contingent upon or resulting from the award of this Sublease. 65 s)3— 206 Section 25.6 Brokerage. Each Party (a) warrants to the other that it has had no dealings with any broker or agent in connection with this Sublease, and (b) covenants to pay, hold harmless and indemnify the other Party from and against any and all costs (including reasonable attorneys' fees), expenses and liabilities for any compensation, commissions and charges claimed by any broker or agent with respect to this Sublease or the negotiation thereof on behalf or on account of such indemnifying party; provided, however, that Authority's indemnification obligations under this Section 25.6 are limited as provided in Section 786.62, Florida Statutes, as amended from time to time. Section 25.7 Interlocal Agreement. This Sublease and all rights of the Parties hereunder are subject and subordinate to the Interlocal Agreement. Authority shall not agree to any amendment to the Interlocal Agreement which might have an adverse effect on Bureau's occupancy of the Subleased Premises for their intended purposes, unless Authority shall first obtain Bureau's prior written approval thereof. Bureau shall have a period of fifteen (15) days after the receipt of a proposed amendment to the Interlocal Agreement to advise Authority, in writing, of its approval or disapproval of same. If no written disapproval is received by Authority within said 15 -day period, then the amendment in question shall automatically be deemed approved by Bureau. Authority grants to Bureau the right to receive all of the services and benefits with respect to the Subleased Premises which are to be provided by the City under the Interlocal Agreement. The Parties contemplate that the City shall, in fact, perform its obligations under the Interlocal Agreement and in the event of any default or failure of performance by the City under the Interlocal Agreement that adversely impacts Bureau's operations, Authority agrees that it will, upon notice from Bureau, make demand upon the City to perform its obligations under the Interlocal Agreement and enforce the Interlocal Agreement. Section 25.8 Construction of Agreement. This Sublease shall be governed by, and construed and enforced according to, the laws of the State of Florida. Section 25.9 Attorney's Fees and Expenses. In the event of any litigation between the Parties, all expenses, including reasonable attorneys' fees and court costs, at both the trial and appellate levels incurred by the prevailing Party, shall be paid by the non -prevailing Party. 66 iJ3-- 206 Section 25. 10 Waiver of Jury. The Parties hereby knowingly, irrevocably, voluntarily and intentionally waive any right either may have to a trial by jury in respect of any action, proceeding or counterclaim based on this Sublease, or arising out of, under or in connection with this Sublease or any amendment or modification of this Sublease, or any other agreement executed by and between the parties in connection with this Sublease, or any course of conduct, course of dealing, statements (whether verbal or written) or actions of any Party hereto. This waiver of jury trial provision is a material inducement for Authority and Bureau entering into the subject transaction. Section 25.11 Jurisdiction. The Parties submit to the jurisdiction of the state and federal courts in the State of Florida for purposes of any action or proceeding arising under this Sublease, agree that the venue of any such action or proceeding shall be laid in Miami -Dade County, Florida, and waive any claim that the same is an inconvenient forum. Section 25.12 Severability. If any provision of the Sublease, or any paragraph, sentence, clause, phrase, or word, or the application thereof, is held invalid, the remainder of the Sublease shall be construed as if such invalid part were never included herein and the Sublease shall be and remain valid and enforceable to the fullest extent permitted by law. Section 25.13 Time of Essence as to Covenants of Sublease. Subject to any extensions expressly provided with respect thereto, time is of the essence as to the performance of the provisions of this Sublease by Bureau and Authority. Section 25.14 Captions. The captions contained in this Sublease are inserted only as a matter of convenience and for reference and in no way define, limit or prescribe the scope of this Sublease or the intent of any provisions thereof. Section 25.15 Conditions and Covenants. All the provisions of this Sublease Agreement shall be deemed and construed to be conditions as well as covenants, as though the words specifically expressing or importing covenants and conditions were used in each separate provision. 67 d)3— 206 Section 25.16 Bureau Obligations Survive Termination. All obligations of Bureau hereunder not fully performed as of the expiration or earlier termination of the Term of this Sublease shall survive the expiration or earlier termination of the Term hereof, including, without limitation, all payment obligations and all obligations concerning the condition of the Subleased Premises. Section 25.17 Radon. Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in sufficient quantities, may present health risks to persons who are exposed to it over time. Levels of Radon that exceed Federal and State guidelines have been found in buildings in Florida. Additional information regarding Radon and Radon testing may be obtained from your county public health unit. Section 25.18 Recording; Documentary Stamps. The Parties hereto agree to execute the short -form lease attached hereto as Exhibit C, and have it properly acknowledged for the purpose of recording in the Public Records of Miami - Dade County, Florida. Such short -form lease shall have included therein such of the provisions hereof as may be requested by either of the Parties. The cost of any such recordation, cost of any State of Florida documentary stamps which legally must be attached to any or all of said papers, and the cost of the applicable Miami -Dade County and State transfer tax shall be paid in full by Bureau. Section 25.19 Duplicate Originals. This Sublease may be executed in any number of counterparts, each of which shall constitute an original of this Sublease. Section 25.20 Third Party Beneficiaries. The City is a third party beneficiary of this Sublease and has the right to sue to enforce performance of any of Bureau's obligations under this Sublease. Section 25.21 Non -disturbance and Attornment/City. The cancellation of the Interlocal Agreement by the parties thereto shall not interfere with the rights of Bureau under this Sublease as provided in and subject to the terms of Article 22 of the Interlocal Agreement. Nevertheless, the Authority covenants and agrees to deliver to Bureau, within thirty (30) days after Bureau's request therefor, a non -disturbance agreement from the City, providing that in the event of a termination of the Interlocal Agreement the possession of 68 03- 206 Bureau (and, likewise, that of its Sub -subtenants) shall not be disturbed so long as Bureau shall not be in default under this Sublease beyond any applicable notice and curative period, and containing such other provisions as may be reasonably requested by Bureau. In the event of a termination of the Interlocal Agreement, Bureau shall attorn to the City and, upon such attornment, the City shall assume all of the rights and obligations of Authority under this Sublease from and after the date of such termination. If the City fails to consent to this Sublease within thirty (30) days after the execution and delivery of this Sublease, either party shall have the right to terminate this Sublease by giving written notice thereof to the other at any time thereafter, but before the City shall have granted such consent. Section 25.22 Provisions not Merged with Deed. None of the provisions of this Sublease, nor the separate estates of Bureau and the Authority, are intended to or shall, in any event, be merged, including by reason of any transfer, whether by operation or law or otherwise, (i) transferring Bureau's leasehold estate in the Subleased Premises or its interest in the Project or any part thereof from Bureau to the Authority, or (ii) transferring title to the Subleased Premises or any part thereof from the Authority or the City to Bureau, and any such transfer shall not be deemed to affect or impair the provisions and covenants of this Sublease. No such merger of estates shall occur unless and until all parties having any interest in this Sublease, the leasehold estate created hereby or the Project, shall join in the execution of a written instrument effecting such merger. Section 25.23 Approvals and Consents. Wherever in this Sublease the approval or consent of any party is required, it is understood and agreed that unless specifically stated to the contrary, such approval or consent will not be unreasonably withheld, conditioned or delayed. Section 25.24 Exculpation. It is the intent and agreement of the Parties hereto that only the Parties as entities shall be responsible in any way for their respective obligations hereunder. In that regard, no officer, director, partner, investor, official, representative, employee, agent, or attorney of any of the parties to this Sublease shall be personally liable for the performance of any obligation hereunder or for any other claim made hereunder or in any way in connection with this Sublease, or any other matters contemplated herein. Section 25.25 Entire Agreement. 69 03- 206 This Sublease represents the total agreement between the parties. All other prior agreements between the parties, either verbal or written, are superseded by this Sublease and are therefore no longer valid. ARTICLE XXVI. RIGHT OF FIRST OFFER Section 26.1 Right of First Offer. Bureau shall have an ongoing right of first offer (the "Right of First Offer") following the date of this Sublease through the end of the Term, or any renewal terms, to sublease the "Food and Beverage Space", "Exclusive Seating Areas" and "Non -Exclusive Seating Area", as such terms are defined in the Existing Subleases (collectively, the "Right of First Offer Space"), subject to the terms hereof. In the event the Existing Sublease with Bimini Landing expires or is terminated, then, in such event, Bureau shall have the continuing right of first offer to sublease the Right of First Offer Space. Such right of first offer is exercisable by Bureau as follows: Authority shall notify Bureau that the Right of First Offer Space is available for sublease. By written notice delivered to Authority within fifteen (15) Business Days after receipt of such notice, Bureau may elect to sublease the Right of First Offer Space on the same terms and conditions as the Existing Sublease with Bimini Landing, including without limitation the rental rate charged thereunder. If Bureau fails to notify Authority within such fifteen (15) Business Day period, then the Right of First Offer shall be deemed to be waived and of no further force or effect until such time as a third party sublease entered into by Authority for such space expires. If Bureau elects to sublease such space, then Bureau and Authority shall, within thirty (30) Business Days after Bureau's notice to Authority, enter into a sublease of such space on substantially the same terms and conditions as the Existing Sublease with Bimini Landing, but omitting any provisions which cross -default the Existing Subleases or otherwise link or condition one Existing Sublease on the other. Notwithstanding anything contained herein to the contrary, Bureau shall not be permitted to exercise the right of first offer while in default of this Sublease. 70 03-- 206 ARTICLE XXVII. AFFIRMATIVE ACTION Section 27.1 Affirmative Action. Bureau shall have in place an Affirmative Action Equal Employment Opportunity Policy and shall institute a plan for its achievement which will require that action be taken to provide equal opportunity in hiring and promoting for women, minorities, individuals with disabilities, and veterans. Such plan will include a set of positive measures which will be taken to insure nondiscrimination in the work place as it relates to hiring, firing, training and promotion. In lieu of such a policy/plan, Bureau shall submit a Statement of Assurance indicating that their business is in compliance with all relevant Civil Rights laws and regulations. Section 27.2 Nondiscrimination. Bureau agrees that there will be no discrimination against any person based upon race, religion, color, sex, ancestry, age, national origin, mental or physical handicap, or marital status in the use of the Premises and improvements thereof. It is expressly understood that upon a determination by a court of competent jurisdiction that discrimination has occurred, Authority shall have the right to terminate this Sublease. IN WITNESS WHEREOF, the parties hereto have individually, through their proper officials, executed this Sublease the day and year first herein above written. Signed, sealed and delivered in the presence of. MIAMI SPORTS AND EXHIBITION AUTHORITY By: Print Name: Print Name and Title: Print Name: APPROVED AS TO FORM AND CORRECTNESS By: Print Name: 71 03- 206 GREATER MIAMI CONVENTION AND VISITORS BUREAU Rv- Print Name: William D. Talbert, III President and CEO Print Name: 72 "33" 206 CONSENT OF CITY OF MIAMI The undersigned hereby consents to and approves all of the terms and conditions of the foregoing Sublease as of this day of , 2003, and agrees to be bound by the terms thereof applicable to the City. ATTEST: 51 Priscilla A. Thompson, City Clerk THE CITY OF MIAMI, a municipal corporation of the State of Florida Its: APPROVED AS TO FORM AND APPROVED AS TO INSURANCE CORRECTNESS REQUIREMENTS Alejandro Vilarello City Attorney Administrator Risk Management Division 73 03- 206 EXHIBIT A Leizal Description of the Property M�3 � !G►V EXHIBIT B Airport O&M Expense Rent Budeet 03- 206 EXHIBIT C This instrument prepared by or under the supervision of: Name: Nancy B. Lash, Esq. Address: Greenberg Traurig, P.A. 1221 Brickell Avenue Miami, Florida 33131-3261 (Space reserved for Clerk of Court) MEMORANDUM OF AMENDED AND RESTATED SUBLEASE AND OPERATING AGREEMENT (Greater Miami Visitors and Aviation Center) THIS MEMORANDUM OF AMENDED AND RESTATED SUBLEASE AND OPERATING AGREEMENT is made as of this day of , 2003, by and between MIAMI SPORTS AND EXHIBITION AUTHORITY, an independent and autonomous agency and instrumentality of the City of Miami (the "Authority"), whose address is 701 Arena Boulevard, Miami, Florida 33136, Attn: Executive Director, and GREATER MIAMI CONVENTION AND VISITORS BUREAU, a Florida not-for-profit corporation (the "Bureau"), whose address is 701 Brickell Avenue, Miami, Florida 33131, Attn: President and CEO. WITNESSETH: For and in consideration of Ten and NO/100 Dollars ($10.00) and other valuable consideration paid, the Authority does demise and let unto the Bureau, and the Bureau does lease and take from the Authority, upon the terms and conditions and subject to the limitations more particularly set forth in that certain Amended and Restated Sublease and Operating Agreement between the Authority and the Bureau dated as of , 2003 (the "Sublease"), certain premises (including offices, a visitors center, aviation museum and parking areas) within the building located on the south side of Watson Island (the "Subleased Premises"), which iJ3- 206 building is part of the "Air Transportation Facility" to be constructed on land legally described on Exhibit A hereto and by this reference made a part hereof (the "Property"), consisting of airside and landside facilities, a terminal, aviation and support areas, parking facilities and the like. Fee title to the Subleased Premises is owned by the City of Miami. The Authority leases the Subleased Premises from the City of Miami pursuant to that certain unrecorded Amended and Restated Interlocal Agreement dated , 2003 by and between the City of Miami and the Authority. The Authority, in consideration of the rents and covenants set forth in the Sublease, hereby demises and leases to the Bureau, and the Bureau hereby takes and hires from the Authority, the Subleased Premises, TO HAVE AND TO HOLD the Subleased Premises for the term commencing on the earlier of (i) the date in which the Bureau takes possession or commences use of the Subleased Premises, or (ii) the date that the certificate of occupancy for the Subleased Premises is issued, and ending thirty (30) years thereafter (the "Term"), subject to extension or earlier termination as provided in the Sublease. The Sublease, among other things, provides the following notice: Pursuant to Florida Statutes, Section 713.10, all persons dealing with the Bureau are hereby given notice that the Authority shall not be liable for any work performed or to be performed on the Subleased Premises at the request of the Bureau, or for any materials furnished or to be furnished at the Subleased Premises for the Bureau, and that the Bureau has no authority whatsoever to subject the Authority's interest in the Subleased Premises to any liens for labor, service or materials provided to the Bureau. All materialmen, contractors, mechanics and laborers and any other persons contracting with the Bureau for the demolition, construction, installation, alteration or repair of any improvements on, within or about the Subleased Premises, are hereby further charged with notice that they must look only to the Bureau and to the Bureau's interest in the Subleased Premises to secure payment for any work done or material furnished at the request or instruction of the Bureau. The Sublease also provides that the Bureau will have available to it, without additional charge, for the Bureau's exclusive use (i) five (5) reserved parking spaces adjacent to the building, and (ii) twenty-two (22) reserved parking spaces located within the boundaries of the Property, in each case to the extent legally permissible. In addition to the foregoing, the 2 03- 206 Authority has agreed to provide, or to cause the City to provide, on or adjacent to the Property, surface parking and, when parking volume requires it, in the City's sole opinion, a parking garage facility, in each case with sufficient capacity to serve the needs of subtenants of the Property, their employees, guests, customers and other invitees. The additional parking area or garage contemplated hereunder shall contain no less than the greater of (a) one hundred forty-one (141) parking spaces, or (b) the number of parking spaces required by law as of the Commencement Date, and shall be available to subtenants of the Property from and after the Commencement Date through the end of the Term. Rates for the parking spaces shall not exceed the lesser of (i) the then prevailing municipal rates charged for parking spaces, or (ii) such rates as may be negotiated by the Bureau with the City or the parking facility operator, as applicable. This instrument is executed and is to be recorded for the purpose of giving notice of the Sublease, but shall not be deemed or construed to change the terms of the Sublease, which shall govern in the case of a conflict. This instrument shall also give notice of that certain Amended and Restated Funding and Development Agreement dated as of , 2003, pursuant to which the Bureau has agreed with the City of Miami and the Authority to construct the Air Transportation Facility as more particularly described therein and subject to the terms thereof. Notwithstanding that the Term has not commenced under the Sublease, the Authority will deliver possession of the Property to the Bureau for purposes of construction of the Air Transportation Facility on the Possession Date described in said development agreement. IN WITNESS WHEREOF, the parties have executed this instrument as of the year and date hereinabove provided. Signed, sealed and delivered in the presence of: MIAMI SPORTS AND EXHIBITION AUTHORITY, an independent and autonomous agency and instrumentality of the City of Miami By: _ Print Name: Name: Title: Print Name: 9 a,3— 206 APPROVED AS TO FORM AND CORRECTNESS: By: _ Name: Title: Print Name: Print Name: STATE OF FLORIDA ) )SS: COUNTY OF MIAMI-DADE ) GREATER MIAMI CONVENTION AND VISITORS BUREAU, a Florida not-for- profit corporation By: Name: William D. Talbert, III Title: President and CEO The foregoing instrument was acknowledged before me this day of , 2003 by , as of MIAMI SPORTS AND EXHIBITION AUTHORITY, an independent and autonomous agency and instrumentality of the City of Miami, on behalf of the agency. He/she personally appeared before me, and is personally known to me or produced as identification. Notary: [NOTARIAL SEAL] Print Name: My Commission expires: 2 x:13- 206 STATE OF FLORIDA ) )SS: COUNTY OF MIAMI-DADE ) The foregoing instrument was acknowledged before me this day of , 2003 by William D. Talbert, III, as President and CEO of GREATER MIAMI CONVENTION AND VISITORS BUREAU, INC., a Florida not-for-profit corporation, on behalf of the corporation. He personally appeared before me, and is personally known to me or produced as identification. [NOTARIAL SEAL] Notary: Print Name: My Commission expires: 5 R33- 2O6 EXHIBIT A LEGAL DESCRIPTION OF LAND 03- 206 AMENDED AND RESTATED FUNDING AND DEVELOPMENT AGREEMENT BY AND AMONG THE CITY OF MIAMI, MIAMI SPORTS AND EXHIBITION AUTHORITY AND GREATER MIAMI CONVENTION AND VISITORS BUREAU FOR THE CONSTRUCTION OF IMPROVEMENTS AT THE REGIONAL AIR TRANSPORTATION FACILITY AND VISITORS CENTER ON WATSON ISLAND, MIAMI, FLORIDA DATED: , 2003 03- 206 AMENDED AND RESTATED FUNDING AND DEVELOPMENT AGREEMENT (Regional Air Transportation Facility and Visitors Center) This Amended and Restated Funding and Development Agreement (Regional Air Transportation Facility and Visitors Center) (the "Agreement"), is made and entered into this day of , 2003, by and between the City of Miami, a municipal corporation of the State of Florida (the "City"), Miami Sports and Exhibition Authority, an independent and autonomous agency and instrumentality of the City of Miami ("Authority"), and the Greater Miami Convention and Visitors Bureau, a Florida not-for-profit corporation ("Bureau"), to establish the terms and conditions for the development of a Regional Air Transportation Facility and Visitors Center to be located at Watson Island in the City of Miami, Miami -Dade County, Florida. RECITALS A. The City and the Authority entered into that certain Interlocal Agreement dated as of August 14, 1997 (the "Original Interlocal Agreement"), whereby the City leased to the Authority a portion of Watson Island in the City of Miami, Miami - Dade County, Florida, as more particularly described in Exhibit A attached hereto (the "Property") for the purpose of establishing a Regional Air Transportation Facility and Visitors Center, including an aviation museum, exhibition spaces, press center, parking areas and other related facilities and improvements ancillary to the operation of a Regional Air Transportation Facility and Visitors Center (collectively, the "Project"); and B. The Original Interlocal Agreement contemplated the active participation of the Bureau in the Project and was contingent upon the Authority and the Bureau entering into a mutually acceptable sublease. Accordingly, the Authority and Bureau entered into that certain Sublease and Operating Agreement on November 3, 1997 (the "Original Sublease Agreement"); and C. Pursuant to the Original Interlocal Agreement and the Original Sublease Agreement, the City, Authority and Bureau entered into a Funding Agreement dated November 3, 1997 (the "Original Funding Agreement"), which established, inter alfa, the obligations of the Parties with respect to the construction, development and funding of the Project; and D. Pursuant to the Original Interlocal Agreement and the Original Funding Agreement, the City requested and obtained a commitment from the State of Florida Department of Transportation ("FDOT") to fund, in part, the costs of construction of the Project in accordance with the provisions of that certain (a) Joint Participation Agreement between the City and FDOT dated June 4, 1993, under Contract Number AA226, as supplemented by Supplemental Joint Participation Agreements dated October 14, 1994 and April 8, 1996, in the total sum of $363,000; and (b) Joint Participation Agreement between the City and 03- 206 FDOT dated January 12, 1999, under Contract Number AG101, as supplemented by Supplemental Joint Participation Agreement dated May 17, 2002, in the total sum of $4,700,419 (collectively, together with any amendments, modifications, supplements, extensions and renewals thereof, the "JPAs"); and E. Since the execution of the Original Interlocal Agreement, the Original Sublease and the Original Funding Agreement, there have been significant changes to the Project and the City, Authority and Bureau have reached additional agreements that are reflected in the Amended and Restated Interlocal Agreement of even date herewith (as so amended and restated, the "Interlocal Agreement"), the Amended and Restated Sublease and Operating Agreement of even date herewith (as so amended and restated, the "Sublease") and this Agreement; and F. Notwithstanding the funding limitations set forth in the Original Funding Agreement, the Bureau has committed to contribute Seven Million Dollars ($7,000,000) for the construction of the Project (if needed), of which Three Million Eight Hundred Thousand Dollars ($3,800,000) will be funded through a Convention Development Tax Grant issued by Miami -Dade County, Florida, a political subdivision of the State of Florida; and G. The Parties have determined that it is in the best interest of the Project (i) to transfer to the Bureau the responsibility for the construction of the Regional Air Transportation Facility and Visitors Center, subject to the terms and conditions set forth in this Agreement, (ii) to set forth the Parties' funding obligations (including cost overruns), and (iii) to amend and restate in its entirety the Original Funding Agreement on the terms and conditions hereinafter set forth. NOW, THEREFORE, in consideration of the foregoing and of the covenants, and agreements hereinafter set forth, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties do hereby covenant and agree that the Original Funding Agreement is in full force and effect, and is amended and restated in its entirety as follows: ARTICLE I DEFINITIONS AND GENERAL PROVISIONS Section 1.1 Definitions. For purposes of this Agreement, the following words shall have the meanings attributed to them in this Section: "Additional Parking Area" means the additional parking area more particularly depicted in the Conceptual Site Plan as "Area C", which will be constructed, or caused to be constructed, by the City as a surface parking area or, if parking volume dictates, a parking garage facility, and operated as a municipal parking facility by the City, the Department of Off -Street Parking or another designee of the City. "Agreement" means this Amended and Restated Funding and Development Agreement. 2 iJ3- 206 "Airside Area" means approximately 3.75 acres of land located within the Property to be utilized to provide seaplane and helicopter services and containing seaplane ramp(s), helipad(s), taxiways, runways, navigational aids, lighting facilities, public aprons and such other facilities as may be incidental to the operation of an airport/heliport. The Airside Area shall include all portions of the Air Transportation Facility, excepting the Building and the Building Site. Construction of the Airside Area will constitute the second phase of the Project. "Airside Area Operator" means Chalks and any other user of the Airside Area pursuant to a written agreement with the Authority. "Air Transportation Facility" means all the facilities which are to be developed, operated and managed at the Property, as more particularly described in the Interlocal Agreement, including, but not limited to the Airside Area, the Building and the parking area depicted in the Conceptual Site Plan, and which constitute a Regional Air Transportation Facility and Visitors Center. "Approvals" means all governmental approvals and permits, including the building permit(s) and approvals from the City and the State of Florida, and approvals required under any Legal Requirements for the commencement of construction of the Project. "Architect" means, collectively, the firm of Spillis, Candela & Partners, Inc. and/or those other consultants and design professionals engaged by such firm pursuant to the Architectural Agreement. "Architectural Agreement" means the Professional Services Agreement between the City and the Architect dated November 3, 1997 for the provision of the Architectural Services for the Project, as heretofore and hereafter amended or supplemented from time to time. "Architectural Services" means the aviation planning and operations, architectural, and engineering services to be provided by the Architect pursuant to the Architectural Agreement. "Authority" means Miami Sports and Exhibition Authority, an independent and autonomous agency and instrumentality of the City. "Aviation Museum" means the aviation museum located on the first floor of the Building within the Visitors Center, as more particularly depicted in the Design Development Plans. "B/T Shop" means the bait and tackle shop and marina operated by Bette & Bert Bayfront 66 Marina, Inc., which is currently located within the boundaries of the Property. "Building" means the approximately forty-five thousand (45,000) square foot structure to be constructed on the Property to house the Visitors Center, the Aviation Museum, exhibition spaces, the Bureau's offices, food service areas, the City's Press Center, VIP Conference Center, the terminal facilities and the Federal Inspection Services areas. The actual square footage of the Building and of each office or space housed therein shall be calculated by the Architect upon completion of construction. 3 iJ3 206 "Building Site" means approximately 1.85 acres of land located within the Property which contains the Building and the surrounding parking area, as more particularly depicted in the Conceptual Site Plan. Construction of the Building and the Building Site will constitute the first phase of construction of the Project. "Bureau" means the Greater Miami Convention and Visitors' Bureau, a Florida not-for- profit corporation. hereof. "Bureau's Construction Contribution" shall have the meaning set forth in Section 4.4(a) "Business Days" means Monday through Friday excluding legal holidays. "Chalks" means Flying Boat, Inc. (d/b/a Chalk's Ocean Airways). "Chalks Agreements" means the Air Terminal Facility Sublease dated March 6, 2002 by and between Authority and the Food and Beverage Facility Sublease dated March 6, 2002 by and between Authority and Bimini Landing, Inc., for use of portions of the Air Transportation Facility. "Chansze Orders" shall have the meaning given to it in Section 6.9. "City" means the City of Miami, a municipal corporation of the State of Florida. "City Delay" shall have the meaning set forth in Section 6.6 hereof. "City's Construction Contribution" shall have the meaning set forth in Section 4.4(b) hereof. "Commencement Date" means the date of the final signature and/or initialing of this Agreement by the Parties. "Completion Date" means the date that the Project has achieved Substantial Completion (as hereinafter defined) in accordance with the Construction Documents and all "punch list" items have been corrected. "Conceptual Site Plan" means the Conceptual Site Plan attached hereto as Exhibit B. "Construction Contract" shall have the meaning given to it in Section 6.1. "Construction Documents" means the final working drawings and specifications for the Air Transportation Facility, which shall include, without limitation: (a) definitive architectural drawings, (b) definitive foundation and structural drawings, (c) definitive electrical and mechanical drawings, including but not limited to, plans for all exterior lighting facilities of the Project, and (d) final specifications, landscaping and graphics, including drawings and E a93— 206 specifications relating to interior improvements of the Public Areas and Non -Public Areas. The Construction Documents shall also include a projected progress schedule for completion of the Project. "Construction Manager" means the entity selected by the Bureau and the City, and engaged by the Bureau, pursuant to the RFQ. The Construction Manager will be the general contractor for the Project and will provide construction management services for a negotiated fee under a guaranteed maximum price contract for the Project, which services will include, at a minimum, value engineering, design review, constructability analyses, bidding and supervision of all construction activities, cost control to insure that the Project is completed at or below the guaranteed maximum price, and all tasks normally associated with construction management services. "Cost Estimate" means the cost estimate prepared by the Architect for the Project, including the cost estimate for the construction of the Building and Airside Area, which estimate shall be updated with each set of Plans submitted by the Architect to the City and the Bureau. "Demolition Work" means the demolition and removal of the B/T Shop pursuant to Section 3.2. "Design Development Plans" means the Design Development Plans and specifications for the Air Transportation Facility prepared by the Architect, dated February 4, 2002, as amended on , 2003, which have been approved by the Parties and are on file with the City of Miami Department of Economic Development. "Disbursement Agreement" means the Construction Disbursement Agreement governing the disbursement of funds for the construction of the Project, which shall be executed by the City, the Bureau and Chicago Title Insurance Company prior to the commencement of construction of the Project. "Entry Road" means the main Entry Road providing legal access from MacArthur Causeway to the Property in the location depicted on the Conceptual Site Plan. "Environmental Conditions" shall have the meaning set forth in Section 3.3 hereof. "Environmental Consultant" means Camp Dresser & McKee, Inc. and any other environmental consultant(s) and/or contractor(s) engaged by the City to assess and/or remediate the Environmental Conditions pursuant to Article II1. "Environmental Law" includes without limitation the Resource Conservation and Recovery Act, the Comprehensive Environmental Response Compensation and Liability Act and other federal laws governing the environment as in effect on the Commencement Date, together with their implementing regulations, guidelines, rules or orders as of the Commencement Date, and all state, regional, county, municipal and other local laws, regulations, ordinances, rules or orders that are equivalent or similar to the federal laws recited above or that purport to regulate Hazardous Materials. i)3- 206 "Environmental Remediation Work" shall have the meaning set forth in Section 3.4. "Event of Default" shall have the meaning set forth in Section 11.1 hereof. "FDOT" means the State of Florida Department of Transportation, an agency of the State of Florida. "FDOT Requirements" means all requirements which are imposed by FDOT under the JPAs exclusively with respect to the construction of the Project as a condition to FDOT's reimbursement of the City's Construction Contribution (but not the actual requests for reimbursement under the JPAs to be submitted by the City to FDOT for reimbursement of any Project costs paid by the City or any other requirements under the JPAs, which the City has expressly agreed to comply with under this Agreement). "Federal Inspection Services" means the services provided by the United States departments of Customs, Immigration and Naturalization Services and Agriculture to the Air Transportation Facility. "Hazardous Material" means any substance or material defined or designated as a hazardous or toxic waste material or substance, or other similar term by any Environmental Law. "Insurance Trustee" means Chicago Title Insurance Company, the escrow agent selected by the Bureau and approved by the City and the Authority to hold insurance proceeds if they become available pursuant to Article VIII hereof. "Interlocal Agreement" shall have the meaning set forth in the recitals. "JPAs" shall have the meaning set forth in the recitals. "Legal Requirements" means applicable laws, statutes, codes, city and county ordinances, orders, judgments, decrees and injunctions from courts having jurisdiction over the construction and operation of the Air Transportation Facility, including specifically, rules and requirements of state and local boards and agencies with jurisdiction over the construction of the Project, now existing or hereafter enacted, adopted, foreseen and unforeseen, ordinary and extraordinary, which may be applicable to the Project or any part thereof. "Material Change" means any change to the Construction Documents which would individually increase the cost of construction by more than $100,000, or impact the structural integrity of the Building., or substantially impact the architectural appearance of the Project, or increase the operating costs of the Air Transportation Facility by more than five percent (5%) over the budgeted amount "Non -Public Areas" means the areas within the Building and Building Site that are under the exclusive use of a Subtenant pursuant to an Occupancy Agreement. 0 iJ3- 206 "Occupancy Agreement" means a sublease, license, concession or other agreement, whether now existing or to be entered into in the future, for the occupancy or use of any portion of the Air Transportation Facility, including the Sublease. "Other Agreements" means the Interlocal Agreement and the Sublease. "Outstanding Basic Service" shall have the meaning set forth in Section 4.2. "Parties" means the City, the Authority and the Bureau. "Phase II Audit" has the meaning given to it in Section 3.3 hereof. "Plans" mean the Design Development Plans, together with all other plans to be developed by the Architect as amended from time to time, and submitted by the Bureau to the City for its review and approval in accordance with the terms set forth herein. "Preliminary Cost Estimate" means the cost estimate dated 2002 prepared by the Architect, which reflects aggregate Project costs of $11,700,000 "Press Center" shall mean the City's international press center consisting of approximately 1198 square feet located on the first floor of the Building to be leased by the City from Authority, and used and operated exclusively by the City, as more particularly depicted in the Design Development Plans. "Project" has the meaning given to it in the recitals and means the Building, the Building Site, the Airside Area, the City's Press Center and any other improvements required to be constructed for completion of the Air Transportation Facility, all as more particularly described in the Design Development Plans. "Proiect Inspector" means any architect or engineer engaged by the City, at the City's expense, to inspect the progress of the Project for the benefit of the City and the Authority. "Property" shall have the meaning set forth in the recitals. "Public Areas" means the total of the Airside and all areas which are within or part of the Building and the Building Site, excepting the Non -Public Areas. "Rent" shall have the meaning given to it in the Sublease. "Review Period" means the period commencing on the Commencement Date and ending on June 30, 2003. "RFQ" means the Request for Qualifications for a Construction Manager at Risk to oversee and manage the construction of the Air Transportation Facility, which the City has authorized the Bureau to issue pursuant to this Agreement. . "Security Deposit" shall have the meaning set forth in Section 4.10. 7 s)3— 206 "Specifically Allocated Costs" shall have the meaning set forth in Section 4.8. "Sublease" shall have the meaning set forth in the recitals. "Substantial Completion" shall have the meaning set forth in Section 6.6. "Subtenant" means any person, firm, corporation or other legal entity using or occupying or entitled to use or occupy any part of the Air Transportation Facility under an Occupancy Agreement. "Surviving Obli atg ions" means those obligations which by their terms expressly survive the termination of this Agreement or the Sublease, as the case may be. "Tenant Improvements" shall have the meaning set forth in Section 6.7. "Term" shall have the meaning set forth in Section 2.2. "TSA" means the Transportation Security Administration (formerly known as the Federal Aviation Administration or "FAA"). "Unavoidable Delay" means strikes, lockouts, acts of God, inability to obtain labor or materials or settle insurance claims due to governmental restrictions, acts of war, enemy action, civil commotion, fire, hurricane, flood, casualty, failure or unjustified delay of a governmental entity, Subtenant or other third party to approve of any actions or documents requiring such party's approval, or other similar causes beyond the reasonable control of a party (not including such party's insolvency or financial condition). "USTs" means the four (4) known underground storage tanks servicing the B/T Shop. "VIP Conference Center" means the City's space consisting of approximately 478 square feet located on the first floor of the Building, as more particularly depicted in the Design Development Plans, to be leased by the City from Authority under the sublease for the Press Center. "Visitors Center" means Bureau's visitors' information center consisting of approximately square feet located within the first floor of the Building, as more particularly depicted in the Design Development Plans, which space includes the Aviation Museum. Section 1.2 Controlling Provisions. In the event of a conflict between the provisions of this Agreement and the provisions of the Sublease, the provisions of this Agreement shall control and shall operate to supersede or amend the conflicting provision or provisions of the Sublease. In the event of any conflict between any of the provisions in this Agreement, the following order of precedence shall control: (1) amendments to this Agreement, with those of a later date controlling over those of an earlier date; (2) this Agreement, with the more stringent requirements controlling over the less stringent requirements; (3) the Plans, with the final 03- 206 Construction Documents controlling over the previous Plans; and (4) the other exhibits to this Agreement. Section 1.3 Exhibits. The exhibits attached hereto are incorporated herein by this reference. Section 1.4 Recitals. The recitals are true and correct and are hereby incorporated into and made a part of this Agreement. ARTICLE II PURPOSE, TERM AND AUTHORITY Section 2.1 Purpose. The purpose of this Agreement is to establish the Parties' obligations with respect to the development and construction of the Air Transportation Facility and the financial contribution of each Party with respect thereto. Section 2.2 Term. The term of this Agreement commenced on the effective date of the Original Funding Agreement and, except as otherwise specifically provided in this Agreement, unless earlier terminated in accordance with the terms hereof, shall end upon the Completion Date (the "Term"). Section 2.3 Authority. Each of the City and the Authority represents, covenants and warrants to the Bureau that it has a valid right and authority to enter into the Interlocal Agreement, this Agreement and the Sublease (as applicable). The Bureau represents, covenants and warrants to the City and the Authority that it has a valid right and authority to enter into this Agreement and the Sublease. ARTICLE III EVICTION, DEMOLITION AND ENVIRONMENTAL ASSESSMENT Section 3.1 Eviction Action. The City has advised the Bureau that the B/T Shop currently occupies a portion of the Property on a month-to-month basis. The City has further advised the Bureau, that prior to the date hereof, the City filed and served an action to evict the B/T Shop owner from the Property, which eviction action is being challenged by the B/T Shop owner. The City agrees to take any and all reasonable actions necessary to segregate the B/T Shop owner's counterclaims and/or crossclaims from the City's eviction action and to diligently pursue to the eviction of the B/T Shop to conclusion. The City shall keep the Bureau apprised of the status of the eviction action and shall provide the Bureau with copies of all notices, statements, actions and proceedings filed or pursued against or by the B/T Shop in connection therewith. Section 3.2 Demolition Work. The Parties agree that the City shall be solely responsible for the Demolition Work, which shall be performed by contractor(s) procured and engaged by the City. The City shall commence, or cause the commencement of, the Demolition Work as soon as reasonably possible, but in no event later than fifteen (15) days, following the City's obtaining possession of the B/T Shop. Prior to commencing the Demolition Work, the City shall obtain an asbestos survey and assessment of the B/T Shop. The Demolition Work shall be performed in strict compliance with the recommendations and conclusions in the asbestos 9 03- 206 survey, all Environmental Laws and all other Legal Requirements. The Demolition Work shall be completed within thirty (30) days following the City's obtaining possession of the B/T Shop. The cost of the Demolition Work, including without limitation the asbestos survey, shall not be included in Project costs and shall be paid for solely by the City. Section 3.3 Phase II Audit of B/T Shop Site. Prior to the Commencement Date, the City engaged an Environmental Consultant to conduct a Phase II environmental assessment of the B/T Shop site, and provided to the Bureau a copy of the Environmental Consultant's preliminary report dated September 28, 2001 (the "Phase II Audit") setting forth the results of the initial groundwater sampling at the B/T Shop site. The City agrees to provide to the Bureau a copy of each supplemental written report provided to the City by any Environmental Consultant with regard to the environmental condition of the B/T Shop site and/or any neighboring property which could have an adverse impact on the B/T Shop site, including without limitation any supplemental or final Phase II Audit and any other written reports setting forth the results of testing and recommendations, within five (5) Business Days after the City's receipt of same. The Phase II Audit reflects levels of hazardous materials in the groundwater at or around the USTs at the B/T Shop site, which potentially violate Environmental Laws. The adverse environmental conditions reflected in the Phase II Audit, together with any further adverse environmental conditions reflected in any additional or supplemental environmental report(s) with respect to the B/T Shop site are referred to herein collectively as the "Environmental Conditions". Section 3.4 Recommendations and Remediation of B/T Shop Site. Subject to the provisions of Section 3.5, the City agrees to comply with all recommendations of the Environmental Consultant set forth in the Phase II Audit and any additional or supplemental reports, and to provide satisfactory evidence of such compliance to the Bureau. If any of the Environmental Conditions violates any Environmental Law, the City shall remove, or cause the removal of, the Hazardous Material(s) giving rise to the Environmental Condition and/or remediate same to the extent required by applicable Environmental Laws and in strict compliance with all such laws. Without limiting the generality of the foregoing, the City agrees to (i) comply with all requirements of the Department of Environmental Resource Management (DERM) and all other applicable Legal Requirements with respect to the Environmental Conditions, and (ii) cause the removal and proper disposal of the USTs and the remediation of all contaminated soil and groundwater (if any) affecting the B/T Shop site in strict compliance with Environmental Laws. The City shall comply with, or cause compliance with, any ongoing monitoring requirements of any environmental enforcement agencies having jurisdiction over the Environmental Conditions. In addition, upon the removal and/or remediation of the Environmental Conditions, the City shall obtain (a) a so-called "no further action" letter from any applicable environmental enforcement agencies with respect to such Environmental Conditions, or (b) in circumstances where such letter is not generally available, a written opinion of the Environmental Consultant to the effect that no further removal or remediation of such Hazardous Materials is required under Environmental Laws. All of the City's obligations hereunder shall be referred to herein collectively as the "Environmental Remediation Work", and shall be performed by the City or contractor(s) procured and engaged by the City. Section 3.5 Funding. Upon removal of the USTs, but prior to commencing any further Environmental Remediation Work, the City shall submit to the Bureau a budget reflecting all hard and soft costs for such work, including the cost of removal of the USTs. If such budget 10 dJ3— 206 indicates that the cost of the Environmental Remediation Work will exceed $300,000 in the aggregate, then the City and the Bureau shall have the right to terminate this Agreement by giving to the other Parties written notice of its intent to terminate within seven (7) days after receipt of the budget, whereupon this Agreement and the Sublease shall be of no further force and effect and the Parties shall be released from all further responsibilities hereunder and under the Sublease, except for the Surviving Obligations; provided, however, that the City shall not have the right to terminate this Agreement (or if previously terminated, such termination shall be nullified) if the Bureau, within the aforementioned 7 days period, agrees to absorb and fund all costs in excess of $300,000. The Parties agree that the costs of the Environmental Remediation Work, including the cost of removal of the USTs, shall be funded (i) first, by the Bureau up to an aggregate of $60,000, (ii) next, by the City up to an aggregate of $140,000 (not including the Bureau's funds), (iii) next, by the Bureau and the City on a 50-50 basis up to an aggregate additional $100,000, and (iv) if the Bureau assumes responsibility for costs in excess of $300,000, by the Bureau in the amount of such additional costs. In the event that the Bureau does not terminate this Agreement pursuant to this Section or Section 3.6, then any unused funds under this Section shall be applied to the cost of remediating the Additional Environmental Conditions, as defined in Section 3.6. The City and the Bureau shall each use good faith efforts to pursue funding for Environmental Remediation Work from appropriate sources, including without limitation local, county, state and federal funds and superfunds, and any funds available from parties responsible for the Environmental Conditions under applicable Environmental Laws, provided that the failure to obtain such funding shall not impact the obligation of the Parties to fund the cost of the Environmental Remediation Work hereunder. In the event that the City is awarded monetary damages in an action filed against the operator of the B/T Shop under applicable Legal Requirements, then the City agrees to apply such monetary award, after payment of all costs, fees and expenses incurred by the City in connection with such action, to reimburse the Bureau and the City for their respective share of the cost of the Environmental Remediation Work. Nothing contained herein shall be construed to impose upon the City any obligation to pursue legal action against the operator of the B/T Shop; however, the City will consider such action if it deems it appropriate, in its reasonable business judgment, under the circumstances. Section 3.6 Assessment and Remediation of Additional Environmental Conditions. Prior to the Commencement Date, the City has engaged an environmental consultant to conduct an environmental assessment of the Property, excluding the B/T Shop site, to determine the existence of adverse environmental conditions, including underground storage tanks, on the Property (excluding the B/T Shop site) (the "Additional Environmental Conditions"). The City agrees to obtain such further and additional reports as may be recommended in any environmental assessments of the Property hereunder. The cost of the environmental assessment and additional reports performed under this Section shall be part of the Project cost. The City agrees to provide to the Bureau copies of all reports given to the City reflecting Additional Environmental Conditions within five (5) days of the City's receipt of same. If the cost of remediation of the Additional Environmental Condition, together with the cost of the Environmental Remediation Work, exceeds $300,000, the Bureau shall have the right to terminate this Agreement by giving the other Parties written notice of its intent to terminate within thirty (30) days after receipt of the budget showing the cost of remediation of the Additional Environmental Conditions, whereupon this Agreement and the Sublease shall 11 03- 206 terminate and the Parties shall be released from all further responsibilities hereunder and under the Sublease, except for the Surviving Obligations. The Bureau shall not have the right to terminate this Agreement (or, if previously terminated, such termination shall be nullified) if construction of the Project has commenced or if the City or the Authority agrees to fund or identify funding for the remediation of the Additional Environmental Conditions within said thirty (30) day period. If the Bureau does not terminate this Agreement as herein provided, then the remediation of the Additional Environmental Conditions shall be part of the scope of work for the Project to be performed under the Agreement, provided that any unused funds under Section 3.5 shall be applied to the cost of remediating the Additional Environmental Conditions prior to the use of any other Project funds. Section 3.7 Participation. The Bureau shall have the right to attend and, at its sole option, participate in all meetings between the City and the Department of Environmental Resource Management (DERM), the Department of Environmental Protection (DEP) or any other environmental enforcement agencies having jurisdiction over any of the Environmental Conditions, and all legal or other governmental proceedings relating to the Environmental Conditions. The City agrees to provide the Bureau with not less than five (5) Business Days' notice of any such meetings or proceedings to enable attendance and participation by the Bureau. Section 3.8 Entry Road. The City shall, at its sole cost and expense, design and construct and complete the Entry Road prior to Substantial Completion of the Building. Section 3.9 Additional Parkin. The City shall be responsible for the design and construction of the Additional Parking Area, at no cost to the Authority, the Bureau or other Subtenants, prior to Substantial Completion of the Building. Section 3.10 Utilities. The Parties acknowledge that the nature of the Project requires the relocation of the utilities servicing the Project underground. If the cost of relocation does not exceed $400,000, then the relocation work will be performed by, or at the direction of the City, at no cost to the Bureau. If the cost of relocation exceeds $400,000, then the City shall have until June 1, 2003 in which notify the Parties of its intent to terminate this Agreement if additional funds to complete the cost of relocation are not secured by September 1, 2003. Upon receipt of the City's notice of its intent to terminate, the Parties shall use good faith efforts to secure funding to complete the cost of the relocation work. In the event that additional funds are not secured by September 1, 2003, then the City may terminate this Agreement by giving the other Parties written notice of its intent to terminate not later than September 7, 2003, whereupon this Agreement and the Sublease shall terminate and the Parties shall be released from all further responsibilities hereunder and under the Sublease, except for the Surviving Obligations. The Bureau shall be responsible for the design, construction and connection of the Project to existing utilities at the boundaries of the Property, including without limitation water, sanitary sewer and storm water drainage, electrical and telephone. Section 3.11 Demolition of Chalks Structures. The demolition of the Chalks' structures shall take place in the second phase of the Project by or under the direction of the Bureau, as part of the Project. 12 s33— 206 Section 3.12 Permits For City's Work. The City shall be responsible for securing all Approvals when required for the Demolition Work and the Environmental Remediation Work. The City shall waive, all fees and charges for required permits and Approvals for the Demolition Work and Environmental Remediation Work, and no such fees or charges shall be included in Project costs under this Agreement. Section 3.13 Liens Caused by City. The City shall not knowingly suffer or permit any mechanics' liens to be filed against the title to the Property or the Project, nor against any Party's interest in the Property by reason of work, labor, services or materials supplied to the City. If any mechanics' lien shall at any time be filed against the Property or the Project as a result of the City's work under this Article III, the City shall cause it to be discharged of record within thirty (30) days after the date the City has knowledge of its filing, unless the City is contesting the lien in good faith and pursuant to appropriate proceedings. If the City shall fail to discharge a mechanics' lien within that period, then, unless such lien is being so contested, in addition to any other right or remedy, the Bureau or the Authority may, but shall not be obligated to, discharge the lien either by paying the amount claimed to be due or by procuring the discharge of the lien by deposit in court or bonding, whereupon any amounts paid by the Bureau or the Authority, as the case may be, shall be repaid by the City to the Bureau or the Authority, as the case may be, immediately upon rendition of any invoice or bill. Section 3.14 Replat. The City agrees to record a replat of the Property prior to Substantial Completion of the Project. The City agrees that the replat shall have no adverse impact on the rights and obligations of the Bureau under this Agreement, or the Sublease. ARTICLE IV ARCHITECTURAL AGREEMENT AND CONSTRUCTION EXPENSES Section 4.1 Assignment of Architectural Agreement. The City represents to the Bureau that the Architectural Agreement is in full force and effect and there are no defaults by either party thereunder. Within five (5) days after the expiration of the Review Period, or on such earlier date as may be agreed upon by the City and the Bureau, the City shall assign to the Bureau, and the Bureau shall accept, all of the City's rights and obligations under the Architectural Agreement, accruing after the date of the assignment.. The assignment of the Architectural Agreement shall be in a form reasonable acceptable to the City and the Bureau, shall provide for the Bureau's releases of the City from further obligations thereunder, except with regard to the payment obligations accruing as of the date of the assignment and as otherwise set forth in this Article IV, and shall provide that the Parties responsible for the initial construction and/or any subsequent reconstruction of the Project (after a casualty or otherwise) shall have full and unconditional right to use the Plans prepared by or under the direction of the Architect for the Project. The Architect shall acknowledge the assignment of the Architectural Agreement to the Bureau, including without limitation all rights of the City thereunder, by consent to the instrument of assignment. The Architect shall also provide the Bureau with satisfactory evidence that the Bureau is an additional insured on all insurance maintained by the Architect with respect to the Project, including without limitation the insurance maintained by the Architect under Section 12.1 of the Architectural Agreement. 13 03- 206 Section 4.2 Architectural Expenses. The City and the Bureau acknowledge that the Architectural expenses under the Architectural Agreement are paid fifty percent (50%) by the City (through and subject to FDOT funding) up to the maximum sum of $363,000 authorized by the JPA having Contract Number AA226, and fifty percent (50%) by the Bureau. The Parties agree that the Architect's .fee for "Basic Services" (as defined in the Architectural Agreement) under the Architectural Agreement will be increased to $747,520, which sum includes $100,000 of additional compensation which the City and Bureau agree to pay to the Architect as consideration for unanticipated delays in the Project, subject to reduction of $16,000 in the event FDOT does not allocate additional funds in the amount of $16,000 for the design of the Project (the 116,000 Reduction"). The Parties acknowledge and agree that $361,366.00 of the $747,520 Basic Services fee has been paid through July 23, 2002. The balance, subject to the $16,000 Reduction, is referred to herein as the "Outstanding Basic Services Fee"). Upon amendment of the Architectural Agreement, the Architect shall be entitled to the Outstanding Basic Services Fee in installments as the Architect's work progresses and as each phase of such work is completed. The Parties agree that the Outstanding Basic Services Fee shall be paid fifty percent (50%) by the City, subject to FDOT's funding and up to the maximum amount of $363,000 authorized under the JPAs, and the Bureau shall be responsible for the balance. Each of the City and Bureau shall fund its share of each installment payment as and when due to the Architect under the Architectural Agreement on a 50-50 basis until the City, through FDOT has funded $363,000, whereupon the Bureau shall fund the remainder. Notwithstanding the foregoing allocation of responsibility for the Outstanding Basic Services Fee, it is the intention of the Parties that the total fees to the Architect under the Architectural Agreement be paid fifty percent (50%) by the City (through FDOT funding) and fifty percent (50%) by the Bureau. Accordingly, the City agrees to use good faith efforts to seek additional funds from FDOT to maintain the allocation of costs under the Architectural Agreement on a 50-50 basis. Section 4.3 Press Center. The City has also requested the Architect to provide Additional Services to revise the existing Design Development Plans to incorporate the .Press Center as part of the Project. The City shall be solely responsible for payment of any increase in the fees of the Architect associated with the design and specifications of the interior improvements to the Press Center, and any increase in the construction costs and engineering fees, which are caused exclusively by the intended use of the Press Center as an international press center. The City shall be responsible for payment of all tenant improvements and furniture, fixtures and equipment required to construct or fixture the Press Center under all circumstances. The City shall designate a representative to handle any and all construction and technical questions relating to the Press Center, who shall be available during normal business hours and shall be responsive to the Architect and the Bureau. To the extent that the work relating to the Press Center can be performed by the City after Substantial Completion of the Building without materially increasing the cost thereof, such work shall be performed by the City after Substantial Completion or in the same manner as Tenant Improvements under Section 6.7. hereof (and subject to the terms of said Section), and the Bureau shall not be responsible for same. Notwithstanding anything herein to the contrary, if the City does not provide the Architect with design and technical information and specifications sufficient to revise the Design Development Plans to incorporate the Press Center by June 30, 2003, then the Architect and the Bureau shall nevertheless proceed with the design and construction of the Project without taking into consideration any specifics relating to the design of or requirements for the Press Center. In such event, the Bureau's sole responsibility with respect to the Press Center shall be to deliver a 14 ij3- 206 "shell" to the City and the City will perform all work required to conform the Press Center to the City's specifications after Substantial Completion of the Building or in the same manner as Tenant Improvements under Section 6.7. hereof (and subject to the terms of said Section). Section 4.4 Construction Expenses. All costs incurred in the construction of the Air Transportation Facility, excluding Specifically Allocated Costs, shall be paid as follows: (a) By the Bureau: The "Bureau's Construction Contribution" which amount shall be equal to the sum of: (1) fifty-three percent (53%) of the cost of constructing the Non -Public Areas and (2) fifty percent (50%) of the cost of constructing the Public Areas; provided, however, that, subject to the terms of this Agreement, the Bureau shall be solely responsible for all construction costs of the Project, after the City has contributed the Maximum Amount. (b) By the City: The "City's Construction Contribution," is the amount to be funded by FDOT under the JPAs, which amount shall be equal to the sum of (1) 47% of the cost to construct the Non -Public Areas; (2) 50% of the cost to construct the Public Areas. In no event shall the City's Construction Contribution exceed $4,700,419 (the "Maximum Amount"), subject to the terms of Section 4.9. (c) The construction cost for the Project shall be divided as follows: Non -Public Areas Public Areas City Not to exceed 47% Not to exceed 50% Bureau Remainder Remainder The parties agree that the Authority shall have no liability whatsoever for any costs or expenses incurred in the design or construction of the Project. Section 4.5 Method of Payment for Construction Expenses. The Bureau shall fund the Bureau's Construction Contribution and, subject to the provisions of Section 4.6 and Section 4.9, the City shall fund the City's Construction Contribution to Chicago Title Insurance Company, for further disbursement in payment of Project costs, in accordance with the terms of the Disbursement Agreement. The Construction Manager's requisitions for payment (AIA Document #G702 attached to the Disbursement Agreement as Exhibit D), or a separate certification prepared by the Architect, shall detail the portion or percentage of the work for Non - Public Areas and Public Areas covered by such requisitions, in order to allocate the payment obligations in the manner contemplated in this Agreement and the Disbursement Agreement. The 15 03- 206 City and the Bureau shall work together to ensure that each requisition for payment shall comply with all requirements imposed by FDOT under the JPAs in connection with funding and shall include generally: total Project cost, the schedule of values contained within the construction budget, change orders to date, the amount of the payment request, allocation of work to Public Areas and Non -Public Areas and Project balance (see Disbursement Agreement for specifics). The requisition for payment shall be accompanied by the lien waivers, releases, affidavits, certifications and other documentation required by the Disbursement Agreement. All requisitions for payment must be approved by the Bureau and the City, which approval shall not be unreasonably withheld, conditioned or delayed. The City and the Bureau shall approve or reject each requisition for payment within seven (7) days following receipt of same. If the City or- the Bureau rejects any requisition for payment, it shall provide sufficient detail, in writing, setting forth the reasons for rejecting same. Failure to approve or reject a requisition for payment within such seven (7) day period shall be deemed to be approval of same. Section 4.6 FDOT Funding. The Parties acknowledge that a portion of the City's share of the Outstanding Basic Services Fee and the City's Construction Contribution shall be reimbursed by FDOT pursuant to the JPAs. The City shall be solely responsible for making any applications and requests for reimbursement for Project costs from FDOT under the JPAs; provided, however, that the City and the Bureau shall cooperate with each other and work in good faith to ensure that the requisitions for payment comply with the requirements of the JPAs, and the Bureau shall provide to the City any back-up or supporting information with regard to the Project costs which may be required to obtain such reimbursement. The City shall fund the City's share of the Outstanding Basic Services Fee that is reimbursable by FDOT and the City's Construction Contribution as and when required to do so under this Agreement and the Disbursement Agreement, respectively; provided, however, that if FDOT shall fail or refuse to reimburse any sums which are reimbursable under the JPAs for any reason (other than failure by the City, or any party acting by, through or under the City, to comply with the terms of the JPAs, which is not caused, in whole or in part, by any act or omission of the Bureau or anyone acting by, through or under the Bureau, or by any third party) for a period exceeding fifty-five (55) days from the submittal of the request for reimbursement, then the City's obligation to fund the City's share of the Outstanding Basic Services Fee reimbursable by FDOT and the City's Construction Contribution shall cease until FDOT shall recommence reimbursements under the JPAs, whereupon the City's funding obligations shall likewise automatically recommence. The City shall not be entitled to cease funding if FDOT refuses to fund under the JPAs due to failure by the City, or any party acting by, through or under the City, to comply with the terms of the JPAs which is not caused, in whole or in part, by any act or omission of the Bureau or anyone acting by, through or under the Bureau or by any third party. The City shall apply for on a timely basis and diligently pursue extensions of any JPAs, which are scheduled to expire prior to Substantial Completion of the Project. If, at any time, the City ceases funding the City's Construction Contribution under this Agreement for any reason (unless caused by any act or omission of the Bureau or anyone acting by, through or under the Bureau or by any third party), the Bureau shall have the right to cease funding the Bureau's Construction Contribution and construction of the Project. If funding is discontinued for a period of more than one (1) month, then the City and the Bureau agree to use good faith efforts to pursue funding from other available sources. If, despite the parties' efforts, funding has not recommenced under the JPAs or no other funding sources have been procured, then the City and the Bureau shall have the right to terminate this Agreement by giving written notice to the Parties of its intent to terminate at any time after nine 16 iJ3- 206 (9) month from the date that funding ceased, whereupon this Agreement and the Sublease shall be of no further force and effect and the Parties shall be released of all further responsibilities hereunder and under the Sublease, except for the Surviving Obligations. Notwithstanding the foregoing, the City and the Bureau shall not have the right to terminate this Agreement (or if previously terminated, such termination shall be nullified) if any of the Parties assumes the obligation to fund the balance of the City's Construction Contribution during said nine (9) month period, whereupon the Bureau shall resume its funding obligations under this Agreement. Upon termination of this Agreement under this Section, the City shall have the right to apply the Security Deposit to raze any improvements on the Property and clear the site, in its sole discretion. Section 4.7 Chalks' Contribution. If the actual cost of the Airside Area improvements exceeds $1,600,000, the City and the Authority will cause Chalks to contribute Chalks' proportionate share of such excess pursuant to Paragraph 11 of the Chalks Agreement relating to the Air Terminal Facility. Section 4.8 Specifically Allocated Costs. All costs associated with the eviction of the B/T Shop, the demolition of the of the B/T Shop, the Environmental Remediation Work, the Outstanding Basic Services Fee and any other costs and expenses expressly allocated to the Bureau or the City, or between them, under the provisions of this Agreement (collectively, the "Specifically Allocated Costs"), shall be excluded from the contributions of the Parties for Project construction costs under Section 4.4. The Bureau and City agree that all Specifically Allocated Costs shall be paid by the Party responsible for same under this Agreement at the times and in the manner required by the terms of the contracts or agreements relating to such costs. If a Specifically Allocated Cost is billed to or incurred by one Party, but is the responsibility of the other Party or both Parties, then the non -billed or non-paying Party (as applicable) shall pay or reimburse the Party who was billed within ten (10) days of written demand therefor. Section 4.9 Additional Funding. Because of the limited funding currently available to the City from FDOT and other sources, the Parties have agreed initially to limit the City's Construction Contribution to the Maximum Amount. However, the City has advised the Bureau that FDOT has indicated that additional funds may become available during the course of construction of the Project for a variety of reasons, including without limitation the failure of other projects for which funds were originally designated and approval of additional funds for the Project. Accordingly, the City covenants and agrees that it shall use good faith efforts throughout the Term of this Agreement to attempt to obtain additional funding for the Project from FDOT and any other adequate available sources, including without limitation making application for such funds on a timely basis and complying with any applicable procedures. If the City obtains such additional funds, the City shall immediately notify the Bureau, the Authority and Chicago Title Insurance Company of same, and, unless the use of the additional funds is restricted by the funding source, this Agreement and the Disbursement Agreement shall be deemed automatically amended to increase the Maximum Amount by the amount of such additional funds and to reduce the Bureau's Construction Contribution by a corresponding amount on a dollar -for -dollar basis. Likewise, the Bureau and the City shall replace the Payment Disbursement Schedule attached to the Disbursement Agreement as Exhibit B with a new schedule reflecting the revised construction contributions of the Bureau and the City. 17 03- 206 Section 4. 10 Security Deposit. On the Commencement Date the Bureau shall deposit One Hundred Thousand Dollars ($100,000) (the "Security Deposit") with the City. The Security Deposit shall be placed by the City in an interest-bearing account with all interest earned thereon being credited to Bureau, subject to an Event of Default by the Bureau, with said interest earned remaining in said escrow account until such time as the Security Deposit is returned to Bureau as outlined below. The Security Deposit will be segregated in an interest bearing escrow account and not commingled with the City's general funds. The Security Deposit shall secure the payment and performance of all of Bureau's obligations, covenants and agreements under this Agreement from the Commencement Date through the date that a certificate of occupancy is issued for the Project, including, without limitation, the Bureau's obligation to raze the improvements and clear the site, if requested by the City, in the event this Agreement is terminated under Sections 4.6 and 11.4. Within fifteen (15) days after the earlier of (i) the issuance of a certificate of occupancy for the Project, or (ii) satisfaction of all of the Bureau's obligations hereunder, if any (if the Agreement is terminated prior to completion of construction of the improvements), the City shall (provided that no Event of Default by the Bureau exists) return the entire Security Deposit to the Bureau. If an Event of Default by the Bureau occurs prior to the issuance of a certificate of occupancy, the City shall have the right, but shall not the obligation, to apply all or any portion of the Security Deposit plus accrued interest to cure such default, in which event the Bureau shall be obligated to deposit with the City the amount necessary to restore the Security Deposit to the amount in effect prior to the deduction. The Security Deposit shall not be deemed liquidated damages and application of the Security Deposit to reduce City's damages, shall not preclude City from recovering from Bureau all additional damages incurred by City to the extent permitted under this Agreement. ARTICLE V PLANS AND CONSTRUCTION DOCUMENTS Section 5.1 Design Development Plans and Preliminary Cost Estimate. The Parties hereby approve the Design Development Plans for the Air Transportation Facility and the Preliminary Cost Estimate attached hereto as Exhibit C and Exhibit E, respectively. The City represents that the Design Development Plans have been approved by all applicable governmental authorities (i.e., that all Approvals required for the Design Development Plans have been obtained), and by any other parties with approval rights, including without limitation, the Chalks, FDOT and the Federal Inspection Services. The Design Development Plans shall form the basis for the Construction Documents. The City further represents that the Preliminary Cost Estimate has been approved by FDOT. Section 5.2 Plans and Cost Estimate. The Bureau shall cause the Architect to submit Plans to the Bureau, the City, the Authority and Federal Inspection Services at the 30% complete, 60% complete and 90% complete stages of the design of the Project. The City and the Bureau shall coordinate and work together in good faith to obtain approvals of all subsequent Plans from FDOT, the Federal Inspection Services and any other party whose approval is required for the City to receive funding for the Project or under the terms of any Occupancy Agreement. Upon receipt of each set of revised Plans hereunder, the City and the Bureau agree to coordinate a Project meeting among the City, the Authority, the Bureau, the Architect, Chalks, 18 03- 206 the Federal Inspection Services, any other prospective occupant of the Project under an Occupancy Agreement and to the extent required under the JPAs, FDOT, to review the Plans with the Architect and discuss any issues or concerns of any such parties relating to the Plans. Such meetings are intended only to facilitate the Plan approval process and shall not create or enlarge any rights that any such parties may have under their respective agreements relating to the Project. With each set of Plans, the Bureau shall also cause the Architect to submit to the City a revised Cost Estimate for the Project. If the revised Cost Estimate exceeds the most recent Cost Estimate for the Project, then, unless the Bureau has agreed to assume full responsibility for payment of all additional costs, the revised Cost Estimate shall be subject to reasonable approval by the City, FDOT and the Bureau within thirty (30) days from the date such Cost Estimate is received by all such parties. The City and the Bureau shall work together and use best efforts to obtain FDOT's approval of the revised Cost Estimate hereunder. In the event that FDOT fails to approve the revised Cost Estimate within thirty (30) days after its receipt, the Bureau shall, at its sole option, within ten (10) days thereafter, either (i) assume full responsibility for payment of all additional costs, or (ii) terminate this Agreement. If the Bureau fails to assume full responsibility for payment of additional costs, in writing, within said 10 day period, then this Agreement shall be deemed terminated. Section 5.3 Plan Approval Process. The City shall have the right to review and approve all Plans for the Project, which approval shall not be unreasonably withheld or conditioned, and provided that once a set of Plans are approved, the City shall have no right to raise as an objection or reason for disapproval in any subsequent Plans any matters which substantially conform to previously approved Plans. The City shall have a period of ten (10) days after the receipt of the applicable Plans to advise the Bureau, in writing, of its approval or disapproval of same. If no written disapproval is received by the Bureau within said 10 -day period, then the Plans in question shall automatically be deemed approved by the City. In the event the City disapproves of part or all of the Plans submitted by the Bureau, the City shall include in its written notification the specific reasons for disapproval. In the event of a proper disapproval of which the Bureau is timely notified, the Bureau shall resubmit the Plans (as applicable) to the City revised to cure the ground of the disapproval. Any resubmission shall be subject to review by the City pursuant to the foregoing plan approval process (except that the City shall have five (5) days, rather than ten (10) days, to review same) until the same shall be finally approved by the City. The City and the Bureau shall attempt to resolve any disputes concerning the Plans in good faith and shall not unreasonably withhold or condition their consent to any such requested approval. The Bureau acknowledges that any Plan approval given by the City shall not constitute an opinion by the City that the Plans are structurally sufficient or in compliance with any Legal Requirements. The Plans as finally approved by the City shall be included in the Construction Documents, shall be initialed by the City and the Bureau and shall be and are incorporated into this Agreement by this reference. The Bureau shall not be required to obtain the approval of the Authority with respect to any Plans (other than the Design Development Plans, which have been previously approved by all Parties) for the Project. 19 #33- 206 Section 5.4 Project Inspector. The City may, by written notice to the Bureau, designate a Project Inspector to review the Plans for the Project, the progress of construction and requisitions for payment on behalf of the City and the Authority, at the City's expense, in lieu of the City under Articles IV, V and VI of this Agreement. Upon receipt of such notice, the Bureau shall coordinate the approval of the Plans, construction matters and requisitions with the Project Inspector unless otherwise directed in writing by the City. If the City does not designate a Project Inspector, then the City shall designate in writing a representative at the City who, at a minimum, shall be available to the Bureau during normal business hours to respond to design development, construction and funding issues. The individual designated by the City under this provision shall not be compensated as a Project cost, and may (but is not required to) be the same person designated to handle Press Center issues under this Agreement. Section 5.5 Conformity with Legal and Other Requirements. The Bureau shall ensure that the Plans and the Construction Documents and all work performed by the Bureau with respect to the Project and the construction thereof, shall be in conformity with this Agreement, all applicable Legal Requirements, the FDOT Requirements and Exhibit C to each of the Chalks Agreements. The City hereby acknowledges and agrees that the JPAs and the Chalks Agreements shall not be amended in any manner which would have a materially adverse effect on the Bureau's rights and obligations under this Agreement without the prior written consent of the Bureau. By way of example and not limitation, a change that increases the Project cost, delays the projected dated of Substantial Completion of the Building by more than 3 days, alters the square footage of the Subleased Premises under the Sublease or materially affects the integrity of the Building shall be considered an amendment requiring the Bureau's consent. The Bureau shall ensure that any work not performed in compliance with the Plans and Construction Documents shall be promptly corrected, replaced, or brought into compliance at no expense to the City. Notwithstanding any failure by City to object to any such defective work, the City shall have no responsibility therefor. Section 5.6 Permits and Approvals. The Bureau shall be responsible for securing all Approvals when required for the construction and completion of the Project (other than the approvals of the Plans from FDOT and the Federal Inspection Services, which the City and Bureau shall obtain jointly hereunder); provided, however, the Bureau shall not be responsible for any delay or failure of any applicable governmental authority or any other third party to provide any Approval. The cost of obtaining the required permits and Approvals shall be part of the construction costs and shall be paid for in accordance with Section 4.4 of this Agreement; provided, however, that the City agrees to waive all fees and charges of the City of Miami for any permits and Approvals for the Project and, to the extent legally permissible, all impact fees. Upon the Bureau's request, the City shall cooperate with the Bureau and provide all assistance in connection with the Bureau's efforts to obtain the necessary Approvals for the Project. Section 5.7 Easements. The City and the Authority hereby grant the Bureau such easements in, over, upon, through and under Watson Island as may be needed to facilitate construction of the Project. Section 5.8 No Additional Obligations; Third PartyAgreements. The Parties agree that the Bureau's construction and funding obligations with respect to the Project are limited to the express provisions of this Agreement and the Construction Documents, and that no additional 20 03- 206 or further obligations are to be implied or imputed by the terms hereof. Without limiting the foregoing, the Bureau shall not be responsible for: (i) any additional covenants or agreements which the City or the Authority may enter into with any existing or new Airside Area Operators after the date hereof unless Bureau consents thereto in writing, in its sole discretion, (ii) any new or additional improvements, or modifications of any previously constructed improvements (including without limitation the relocation of the blast wall separating the operations of the Airside Area Operators), required under the Chalks Agreement by reason of the City's acquisition of the Additional Property (as defined in the Interlocal Agreement), or (iii) any Tenant Improvements, except as specifically provided in Section 6.7 below; to the extent that any such covenant, agreement or improvement may result in an increase in the cost of the Project (unless such increase is paid by a party other than the Bureau) or in any delay to the projected date of Substantial Completion of the Building. In addition, to facilitate the plan approval process and construction of the Project, the Authority and the City agree to enforce the terms, conditions and provisions of the Occupancy Agreements and any other third party agreements relating to the approval of plans and specifications, approval of change orders, obligations to contribute financially to the Project, and any other matter which may hinder, delay or otherwise impact construction of the Project. ARTICLE VI CONSTRUCTION OF IMPROVEMENTS Section 6.1 Procurement of Construction Services. The City hereby authorizes the Bureau to issue a Request for Qualifications ("RFQ"), for the procurement of construction management services, and to select the Construction Manager in the manner provided in the RFQ, and negotiate and execute a contract for a construction manager with a guaranteed maximum price (the "Construction Contract"), which RFQ and the Construction Contract shall be subject to FDOT's approval, and in a form reasonably acceptable to the City Attorney and FDOT. If required by the JPAs or FDOT, the City shall also execute the Construction Contract. The procurement of construction management services hereunder, and the contracts resulting therefrom shall be in compliance with all Legal Requirements and the FDOT Requirements. The solicitations for bids and the Construction Contract shall incorporate the necessary provisions to establish a satisfactory mechanism for payment of the construction costs consistent with the Disbursement Agreement. Section 6.2 Construction of the Proiect. The Bureau shall be entitled to commence construction of the Project once the Construction Documents have been initialed by the City and approved by FDOT, and the Bureau has obtained the Approvals required for the applicable stage of construction. The Bureau shall be responsible for the construction of the Air Transportation Facility in accordance with the JPAs, and the approved Construction Documents, as they may be amended from time to time in accordance with the provisions of this Agreement. During the construction of the Project, the work of the Bureau shall be available for inspection at reasonable times by the City, provided that the Bureau is given reasonable advance written notice thereof and such inspection does not interfere with the progress of the Construction Manager's construction work. Notwithstanding anything herein to the contrary, the City shall have the right to terminate this Agreement if construction of the Project has not commenced by January 1, 2007, or if funding under the JPAs has expired, notwithstanding City's diligent efforts to extend 21 03- 206 same, prior to commencement of construction of the Project, whereupon the Sublease shall be deemed terminated. Section 6.3 Phased Construction. The City and Authority acknowledge that the Bureau must relocate from its current offices on Brickell Avenue in Miami, Florida, to the Subleased Premises by no later than June 1, 2004. The Bureau acknowledges that the Chalks Agreements require that the Air Transportation Facility be constructed in phases in order to minimize interference with the ongoing operations of Chalks. Accordingly, the Parties acknowledge and agree that the Project will be constructed in phases, with the first phase consisting of the construction of the Building and Building Site, and the second phase commencing upon Substantial Completion of the Building and Building Site, and consisting of the demolition of Chalks' existing structures and subsequent construction of the tarmac and other Airside Area facilities contemplated in the Plans. The City and the Authority agree to take all reasonable steps to ensure that Chalks' occupancy of the Property shall not interfere with the construction of the Project. The Bureau agrees to use, and cause to be used, all reasonable efforts to minimize any inconvenience to Chalks resulting from construction of the Project. Bureau acknowledges, and agrees to comply with the Authority's representations to Chalks that the Project will be constructed in such a manner so as to not interrupt Chalk's scheduled operations as provided in Section 5.4 of the Chalks Agreement for the Air Terminal Facility, provided that the City agrees to temporarily relocate Chalk's operations within the Property, if necessary to avoid interruption of its operations in accordance with Section 5.4 of the Chalk's Agreement. The Authority and City further agree that the Bureau shall have the right to phase construction of the Building and Building Site after the completion of the Building shell, to enable the completion of all construction work and Tenant Improvements within the office portion of the Subleased Premises located on the second floor of the Building before completion of any other improvements within the Building or Building Site. Such phased construction is contemplated by the RFQ and will be carried out by the Construction Manager. Section 6.4 Progress Reports and Construction Meetings. During the construction of the Project, the Bureau shall provide to the City, at the time of each requisition for construction costs, (i) a certificate from the Architect certifying that those portions of the Project completed, for which requisitions for payment have been issued, are in substantial accordance with the Construction Documents, and (ii) progress reports detailing the progress of the construction of the Project. The Bureau and the City or the Project Inspector shall consult on a regular basis (but no more frequently than monthly unless the Parties otherwise agree) to address any issues pertaining to the conformance of the work to the Construction Documents, proposed or potential change orders, concerns (if any) raised by Chalks or any other Subtenants, and other matters pertaining to the construction, occupancy and operation of the Air Transportation Facility. Section 6.5 Completion of Project. Upon Substantial Completion (as defined below) of each phase of the Project, the City and Bureau, with the assistance of the Project Inspector (if designated), shall provide a "punch list" identifying the corrective work of the type commonly found on an architectural punch list with respect to such phase of the Project. Within thirty (30) days after delivery of each punch list, the Bureau shall cause the Construction Manager to commence correction of punch list items and diligently pursue such work to completion. The aforementioned punch list procedure for the Building phase shall in no way limit the Bureau's obligation to occupy the Subleased Premises under the Sublease, unless such punch list items 22 03- 206 preclude the Bureau from obtaining a temporary certificate of occupancy for the Subleased Premises. Section 6.6 Substantial Completion. The Bureau shall exercise commercially reasonable efforts to cause the Construction Manager to Substantially Complete the entire Project, within twenty-four (24) months from the commencement of construction of the improvements, subject to Unavoidable Delays or City Delays (as hereinafter defined) or delays caused by any Subtenant. "Substantial Completion" or "Substantially Completed" as used herein shall mean, with respect to each phase of construction, the Architect's certification and notice to the Bureau and the City of the completion of construction of such phase of the Project in accordance with the approved Construction Documents such that the applicable portion of the Project is suitable for its intended use, with the exception of minor details of construction installation, decoration, or mechanical adjustments and punch list items. Substantial Completion shall be deemed to have occurred, notwithstanding the requirement to complete "punch list" items or similar corrective work. Upon the Bureau's submittal of a certificate of Substantial Completion for the entire Project, the City and the Bureau shall each pay their respective share of the final payment due in accordance with the terms hereof and this Agreement shall automatically terminate. For the purposes of this Agreement, a "City Delay" shall mean a delay in the construction of the Project which is solely caused by (a) any changes in the Construction Documents requested by the City after the City and the Bureau's final approval thereof, (b) the City's failure to furnish any documents under its control as required herein or a failure to timely approve any item as required herein, or (c) the City's failure to timely perform any act or obligation imposed on the City under this Agreement or the Other Agreements. Section 6.7 Tenant Improvements and Office Furnishings for Non -Public Areas. It is expressly understood that the provisions of this Agreement pertaining to construction and funding obligations are limited to the Project as defined and as specifically set forth in the Construction Documents. The design, layout, provision, delivery, construction of tenant improvements and installation of any furniture, furnishings, equipment and any other personal property for use by the Bureau, Chalks, the City or any other Subtenant exclusively (the "Tenant Improvements"), shall be paid exclusively by the Bureau, Chalks, the City and/or such Subtenant, as applicable. The City's responsibility under the foregoing sentence shall include not only the Press Center but also the VIP Conference Center. The Bureau shall have no obligation to construct any of the Tenant Improvements whatsoever pursuant to this Agreement, except (i) as expressly provided in Section 4.3 with respect to the Press Center, and (ii) for the work described in Exhibit C to each of the Chalks Agreements; to the extent such work constitutes Tenant Improvements. The City shall provide to the Bureau copies of any plans and specifications for the Tenant Improvements, including those performed by or on behalf of Chalks, upon written request of the Bureau. The Bureau's review of such plans shall not constitute an opinion by the Bureau that the plans are sufficient or in compliance with any Legal Requirements and no review by the Bureau shall impose any liability on the Bureau with respect to the Tenant Improvements. Each Subtenant shall be permitted to enter the Property to arrange for the performance of their respective Tenant Improvements with the prior written approval of the Bureau, provided that (i) such Subtenant's contractors constructing Tenant Improvements shall do so in such a manner as to maintain harmonious labor relations so as not to interfere with or delay the construction of the Project, (ii) such Subtenant indemnifies and holds harmless the Bureau, the City, the Authority and their respective agents, employees and contractors, from and 23 iJ3-- 206 against, and covenants that it is responsible for, any and all costs, expenses, damage, loss, or liability, including, but not limited to, reasonable attorneys' fees and costs, which arise out of, is occasioned by, or is in any way attributable to the work being performed by such Subtenant's contractors, and (iii) such Subtenant provides to the Bureau, the City and the Authority certificates of insurance evidencing that such Subtenant has the required comprehensive general liability insurance required of it under its sublease, as well as certificates of insurance in forms and in amounts satisfactory to the Bureau and the Authority evidencing that such Subtenant's contractor has in effect (and shall maintain at all times during the course of the work hereunder) workers' compensation insurance to cover full liability under workers' compensation laws of the State of Florida with employers' liability coverage and comprehensive general liability and builder's risk insurance for the hazards of operations, independent contractors, products and completed operations. The Bureau, the City and the Authority shall not be liable in any way for any injury, loss, damage, or delay which may be caused by or arise from such entry by Subtenants, their respective employees, agents or contractors. Section 6.8 Ownership of Proiect. The ownership of the Project shall be governed by the terms of the Other Agreements. Section 6.9 Change Orders. All Material Changes in the construction of the Project shall be subject to the approval of the Authority, the Bureau and the City, which approval shall not be unreasonably withheld, conditioned or delayed. Prior to commencing any Material Change in the work, the Bureau will cause the Construction Manager to prepare a change order (the "Change Order") setting forth the total costs of such change. If the Authority, the Bureau and the City do not approve such Change Order, the Bureau will not proceed to cause the requested change to be performed. The cost of any Change Order authorized pursuant to this Section or required by the Federal Inspection Services shall be paid in the manner provided in Section 4.4 of this Agreement for the payment of construction costs of the Project; provided, however, that the City shall be solely responsible for the entire cost of change orders requested by the City, or change orders requested by an Airside Area Operator or a party to an Occupancy Agreement (but not the Bureau) which has been previously approved, in writing, by the City, unless such change order is necessitated by the Bureau's failure to construct (or cause construction of) the Project substantially in accordance with the Plans. Except for Material Changes, or other changes that affect other users of the Project under Occupancy Agreements, no other changes in the work or change orders shall require the Authority's approval and all such changes and change orders shall be included in the costs of the Project. Section 6.10 Liens. The Bureau shall not suffer or permit any mechanics' liens to be filed against the title to the Property or the Project, nor against the Bureau's or the Authority's interest in the Property by reason of work, labor, services or materials supplied to the Bureau or anyone having a right to possession of the Property or the Project as a result of an agreement with the Bureau. Nothing in this Agreement shall be construed as constituting the consent or request of the City and the Authority, expressed or implied, by inference or otherwise, to any contractor, subcontractor, laborer or materialman for the performance of any labor or the furnishing of any materials, for any specific work on the Property or the Project nor as giving the Bureau the right, power or authority to contract for or permit the rendering of any services or the furnishing of any materials that would give rise to the filing of any mechanics' liens against the Authority's or the City's interest in the Property or the Project. If any mechanics' lien shall at 24 o3- 206 any time be filed against the Property or the Project, the Bureau, at its sole cost and expense, shall cause it to be discharged of record within thirty (30) days after the date the Bureau has knowledge of its filing. If the Bureau shall fail to discharge a mechanics' lien within that period, then in addition to any other right or remedy, the City and/or the Authority may, but shall not be obligated to, at the Bureau's sole cost and expense (including without limitation, payment of the City's and/or the Authority's reasonable attorneys' fees and expenses), discharge the lien either by paying the amount claimed to be due or by procuring the discharge of the lien by deposit in court or bonding. The City and/or the Authority shall be entitled, if either of them so elects, to compel the prosecution of any action for the foreclosure of the mechanics' lien by the lienor and to pay the amount of the judgment, if any, in favor of the lienor with interest, costs and allowances with the understanding that all amounts and expenses incurred paid by the City and/or the Authority (including without limitation reasonable attorneys' fees and expenses) shall be repaid to the City and/or the Authority by the Bureau immediately upon rendition of any invoice or bill. The Bureau shall not be required to pay or discharge any mechanics' lien so long as the Bureau shall in good faith proceed to contest the lien by appropriate proceedings and if the Bureau shall have given notice in writing to the City and/or the Authority of its intention to contest the validity of the lien and shall furnish reasonably satisfactory evidence that funds are or will be available to pay the amount of the contested lien claim with all interest on it and costs and expenses, including reasonable attorneys' fees to be incurred in connection with it. Neither the City nor the Authority shall be entitled to pay the lien or compel the prosecution of any action with respect thereto during any time that the Bureau is contesting such lien. If the Bureau is unsuccessful in such contest, the Bureau shall immediately cause the lien to be discharged of record in accordance with this Section 6.10. ARTICLE VII INSURANCE AND BOND Section 7.1 Insurance. Prior to the commencement of any construction work on the Property, the Bureau agrees to obtain, or require the Construction Manager and/or the Architect to obtain and maintain at all times during the Term, such insurance coverage, as may be required by the City, in the City's reasonable discretion, and FDOT, if required under the FDOT Requirements. Copies of the certificate(s) of insurance shall be provided to the City within ten (10) days after the City's written request therefor. Without limiting the City's and/or FDOT's right to review and amend its insurance requirements hereunder in a manner consistent with other comparable construction projects, the Bureau agrees to maintain or cause to be maintained with respect to each phase of construction of the Project (and only with respect to the portion of the Project under construction during such phase until such phase has been Substantially Completed): (a) Property Insurance. Builder's Risk Insurance against all risks of physical loss or damage to the Project. The insurance shall be written on a full replacement cost basis. (b) Liability Insurance. Commercial general liability, including contractual liability, or an equivalent policy form providing liability insurance against claims for personal injury or death or property damage, occurring on or about the Project or any equipment used for the construction of the Project. Such 25 03-- 206 insurance shall afford protection to at least a combined single limit for bodily injury and property damage liability of $ per occurrence. Professional liability insurance covering errors and omissions arising out of all professional services rendered in connection with the design and engineering of the Project with coverage in an amount no less than $ (c) Worker's Compensation. Worker's Compensation and Employer's Liability Insurance in compliance with Florida Statutes F.S. 440. (d) Copies. On or before the commencement of construction of the Project, the Bureau shall furnish evidence and policies of insurance to the City and the Authority which shall clearly indicate that the Bureau has obtained insurance in the type, amount and classifications required by this Agreement. Evidence of insurance for renewal policies replacing any policies expiring during the term of this Agreement shall be delivered at least twenty (20) days prior to the date of expiration of any policy together with proof that all premiums have been paid. Insurance policies required above shall be issued by companies authorized to do business under the laws of the State of Florida, having, at a minimum, the following qualifications: The insurance required by this Section may be provided by the Construction Manager, Architect or other professional performing the work in question so long as the amount of insurance available to pay losses is at least the minimum required by this Article. Section 7.2 Named Insured. All policies of insurance required by this Article shall indicate as named or additional insureds the Bureau, the City, and the Authority, and, if required under the FDOT Requirements, FDOT or such other entity as may be required thereunder. Notwithstanding any such inclusion, the Parties agree that any losses under such policies shall be payable, and all insurance proceeds recovered thereunder shall be applied and disbursed, in accordance with the provisions of this Article. All insurance policies shall provide that no material change, cancellation or termination shall be effective until at least thirty (30) days after written notice to each additional and named insured. All insurance policies hereunder shall be subject to the review and approval of the City, which approval shall not be unreasonably withheld or delayed. Section 7.3 Insurance Does Not Waive Bureau's Obligations. No acceptance or approval of any insurance hereunder shall relieve or release the Bureau from any liability, duty or obligation under this Agreement or the Sublease. Section 7.4 Proof of Loss. Whenever any part of the Project shall have been damaged or destroyed by fire or other casualty, the Bureau shall promptly make proof of loss in accordance with the terms of the applicable insurance policies and shall promptly prosecute all valid claims which may have arisen against insurers or others based upon any such damage or destruction. The Bureau shall promptly give the City and the Authority written notice of any damage or destruction the Project. Section 7.5 Property Insurance Proceeds. FM o)3— 206 (a) Authorized Payment. All sums payable for loss and damage arising out of the casualties covered by the property insurance policies shall be payable to the Insurance Trustee, to be disbursed to the Bureau pursuant to Subsection 7.5(b). (b) Disposition of Insurance Proceeds for Reconstructing. Subject to the FDOT Requirements (if any), all insurance proceeds shall be used, to the extent required, for the reconstruction, repair or replacement of the Project, so that the Project shall be restored to a condition comparable to the condition prior to the loss or damage (hereinafter referred to as the "Reconstruction Work"). Insurance proceeds shall be disbursed in accordance with the Disbursement Agreement. Section 7.6 Covenants for Commencement and Completion of Reconstruction. Subject to the provisions of this Section, the Bureau covenants and agrees to promptly submit any claim for damage to the insurer and to commence the Reconstruction Work as soon as practicable (but in any event within ninety (90) days after the insurance proceeds have been received by the Insurance Trustee, subject to Unavoidable Delay), and to fully complete such Reconstruction Work as expeditiously as reasonably possible. Section 7.7 Bureau's Option to Terminate. If (a) the insurance proceeds received are insufficient to complete the repairs, or (b) the Bureau is unable to obtain all of the governmental approvals required under Legal Requirements for the reconstruction of the Building, then, in any of such events, the Bureau may elect to terminate this Agreement and the Sublease by giving to the City and the Authority notice of such election within ninety (90) days after the occurrence of the casualty. If such notice is given, the rights and obligations of the Parties under this Agreement and the Sublease shall cease as of the date of such notice, except for the Surviving Obligations. In such event, the insurance proceeds from such casualty shall be payable as follows: (a) First, to the Bureau to raze any improvements on the Property and clear the site; (b) Next, to the Bureau and FDOT in proportion to their respective construction contributions (or, with respect to FDOT, the portion thereof required to be reimbursed under the JPAs); provided, however, that if FDOT does not require reimbursement of any of its construction contribution, to the Bureau to reimburse the Bureau's Construction Contribution until paid in full; and (c) The balance, if any, to the City. Section 7.8 Waiver of Subrogation Rights. Anything in this Agreement to the contrary notwithstanding, the City, the Authority and the Bureau each hereby waive any and all rights of recovery, claim, action, or causes of action against the other, its agents, officers, directors, partners, investors, or employees, for any liability, loss or damage that may occur in, on, about or to the Property and/or any improvements from time to time existing thereon, or to any portion or portions thereof, or to any personal property brought thereon, by reason of fire, the elements or any other cause(s) which are insured against under the terms of valid and 27 „J3- 206 collectible insurance policies carried for the benefit of the party entitled to make such claim, regardless of cause or origin, including negligence of another party hereto, its agents, officers, directors, partners, investors, or employees; provided that such waiver does not limit in any way any party's right to recovery under such insurance policies, and provided further that the insurer pays such claims. The City, the Authority and the Bureau shall each obtain an endorsement to all insurance policies to effect the provisions of this Section, provided that such endorsements are available at no additional cost. Section 7.9 Payment and Performance Bonds. Prior to the commencement of any construction work on the Property, the Bureau agrees to require and cause the Construction Manager to provide payment and performance bonds in compliance with Section 255.05 Florida Statutes (modified, if possible, to protect the Bureau's leasehold interest under the Sublease in addition to the City's and Authority's interests in the Property), issued by Florida licensed surety companies and subject to the City's approval. Said Bonds shall remain in force and effect throughout the entirety of the construction of the Project and will identify the City and the Authority as dual obligees. Copies of the payment and performance bonds will be provided to the City and the Authority prior to the commencement of construction. ARTICLE VIII CONDITIONS PRECEDENT Section 8.1 Review Period Conditions. The Bureau's obligations under this Agreement shall be subject to the satisfaction of the following conditions within the Review Period, or such shorter period of time as may be specified herein: (a) The Bureau shall have obtained satisfactory evidence that utility services sufficient to satisfy the requirements of applicable regulatory authorities for the development of the Project are available at the Property (or will be available at the time of Substantial Completion), with sufficient capacity to service the Air Transportation Facility. Such evidence must be in writing and may consist of letters from the applicable utilities confirming availability and capacity. (b) The Bureau shall have received a current commitment for title insurance, from a recognized commercial title insurance company authorized to issue title insurance in the State of Florida agreeing to insure the Bureau's leasehold estate under the Sublease, free of exceptions that would, in the reasonable opinion of the Bureau, prevent the Bureau from constructing the Project in accordance with the Plans. The title commitment shall reflect that the portions of the road commonly known as former AIA which transverse the Property have been conveyed by FDOT to the City. (c) The Bureau shall have confirmed, based upon the survey previously provided to the Bureau by the City or any updates thereto or any additional surveys or surveyor's affidavits obtained by the Bureau, that the Property is free of encroachments or conditions that would prevent the Bureau from constructing the Project in accordance with the Plans. The r: KJ 3 - 209 survey, if updated, shall be certified to the Bureau, the Authority, the City, FDOT and the Bureau's title insurer. (d) Within thirty (30) days after the Commencement Date, (i) the Bureau shall submit to the City evidence that it has the funds necessary to pay the Bureau's Construction Contribution, and (ii) the City shall submit to the Bureau evidence that it has funds available to pay a construction draw prior to reimbursement from FDOT. (e) At the time of the assignment of the Architectural Agreement to the Bureau, the Architect shall have provided an Architect's certificate to the Bureau certifying, inter alfa, that (i) the Architectural Agreement is in full force and effect, (ii) there is no default by Architect, or to Architect's knowledge, by the City, under the Architectural Agreement, (iii) the Architect's total fee for Basic Services under the Architectural Agreement is $747,520 (subject to the $16,000 Reduction as provided in Section 4.2) with $361,366.66 of such Basic Services fee having been paid to date, and $386,153.34 remaining due under the Architectural Agreement, (iv) the Plans comply with all applicable Legal Requirements, and (v) such other matters as the Bureau may reasonable request. (f) FDOT shall have approved in writing (i) this Agreement, (ii) the Interlocal Agreement, (iii) the Sublease, (iv) the Preliminary Cost Estimate for the Project, (v) the Disbursement Agreement, including the Project Disbursement Schedule and all other Exhibits attached thereto, and (vi) such other agreements as may require FDOT approval. In addition, FDOT shall confirm in writing that any subsequent Cost Estimates for the Project provided by the Architect under Section 5.2 hereof which reflect increased Project costs over any prior Cost Estimate, shall not require further FDOT approval if the Bureau assumes responsibility for such increased costs, anything contained in the JPAs to the contrary notwithstanding. However, nothing contained herein shall limit or restrict the ability of the City and/or the Bureau to seek additional funding from FDOT for Project costs. (g) The TSA shall have approved in writing the airport layout plan. (h) The City shall have provided satisfactory evidence to the Bureau and the Authority of its plan for the funding and construction of the Entry Road, the Additional Parking Area and the relocation of utilities underground, which plan shall reflect a completion date prior to Substantial Completion of the Building. (j) The Bureau shall have received evidence that the date by which construction is required to commence under the Convention Development Tax Grant issued by Miami -Dade County, Florida to fund Three Million Eight Hundred Thousand Dollars ($3,800,000) of the Bureau's 29 03- 206 Construction Contribution has been extended to January 31, 2004, or another date acceptable to the Parties. The Bureau agrees to deliver to the City and the Authority copies of all reports of all inspections conducted or obtained by the Bureau under this Section. Section 8.2 Failure of Review Period Conditions. In the event that one or more of the conditions set forth in this Article VIII are not satisfied by the end of the Review Period (or, if an earlier date is specified in Section 8.1 for satisfaction of such condition, then by such earlier date), then, subject to the provisions of Section 8.3 below, then the Bureau shall have the right to terminate this Agreement by giving to the other Parties written notice of its intent to terminate not later than 5:00 p.m. of the next business day following the expiration of the Review Period, in which event this Agreement and the Sublease shall be of no further force and effect and the Parties shall be released from all further obligations with respect thereto, except for the Surviving Obligations. Section 8.3 Title Defects. In the event that the title report or survey reveals any defects in title that prevent the construction of the Project in accordance with the Design Development Plans, then the Bureau shall provide the City written notice detailing the nature of the defect(s), on or before 5:00 p.m. on the date upon which the Review Period expires. If the Bureau fails to object, in writing, to any particular condition of title or matter of survey prior to 5:00 p.m. on such date, then the Bureau shall be deemed to have waived such condition of title. In the event that the Bureau timely objects to any conditions of title or matter of survey, the City shall be under no obligation to cure any such title or survey defect(s). If the City elects, in its sole discretion, to attempt to cure such defect(s), it shall not be obligated to bring any action or proceeding to eliminate such title objection or expend any money to eliminate any title objection. In the event that a properly noted title or survey defect is not cured within ninety (90) days after the City's receipt of the Bureau's notice thereof (the "Cure Period"), then the Bureau may, at its option, (i) cancel this Agreement, in which event this Agreement and the Sublease shall be of no further force and effect and the Parties shall be released from all further obligations with respect thereto, except for the Surviving Obligations; or (ii) accept the condition of title or survey for all purposes under this and the Sublease. If the Bureau elects to cancel this Agreement in accordance with this provision, then it shall give the other Parties written notice of its intent to terminate not later than 5:00 p.m. of the tenth (10`h) Business Day following the expiration of the Cure Period. Notwithstanding the foregoing, the Bureau acknowledges Chalks' occupancy of a portion of the Property under the Chalks Agreements, and that Chalks will continue to occupy such portion of the Property during the construction of the Project, subject to the terms of Section 6.3. The Bureau agrees that Chalks' presence on the Property shall not constitute a title defect under this Section. Section 8.4 Memorandum of Agreements. Provided that this Agreement is not terminated during the Review Period, the Parties agree to fully execute and record the Memorandum of Amended and Restated Interlocal Agreement attached as an exhibit to the Interlocal Agreement, and the Memorandum of Amended and Restated Sublease and Operating Agreement attached as an exhibit to the Sublease, in the Public Records of Miami -Dade County, Florida to enable the issuance of title insurance in favor the Bureau. The City further agrees to provide the title company insuring the Bureau's subleasehold estate under the Sublease with such 30 o)3— 206 evidence of the City's and the Authority's authorization to enter into this Agreement and the Sublease as such title insurer may reasonably request, including without limitation a copy of the resolution of the City Commission approving this transaction and a letter from the City Attorney confirming compliance with the City's Charter. ARTICLE IX OTHER TERMINATION RIGHTS Section 9.1 Rifzht to Terminate. The Bureau shall have the right to terminate this Agreement upon the occurrence of any of the following events: (a) within ten (10) Business Days after receipt of each Cost Estimate, if the Cost Estimate for the Project, including the Building, Building Site and Airside Area, as updated with each set of Plans, exceeds the sum of $11,700,000; or (b) within ten (10) Business Days after receipt of sealed bids, if the actual construction cost of the Project, as determined by the Construction Manager after receipt of competitive bids, exceeds the Cost Estimate; or (c) the City fails to obtain possession of the B/T Shop site by June 30, 2003 notwithstanding its diligent efforts to evict, provided that the Bureau, at its sole option, may extend the deadline for the City obtaining possession of the B/T Shop site to December 30, 2003 in which case failure to obtain possession by December 30, 2003 shall constitute an event that triggers the right to terminate. Section 9.2 Notice of Termination. In order to exercise the right to terminate under this Article, the Bureau shall give written notice to the other Parties of its intent to terminate within five (5) Business Days following the receipt of notice or obtaining knowledge of the occurrence of the event that triggers the right to terminate. Section 9.3 Effect of Termination. Upon termination of this Agreement pursuant to this Article, this Agreement and the Sublease shall be of no further force and effect and the Parties shall be released from all further responsibilities hereunder and under the Sublease, except for the Surviving Obligations. ARTICLE X INDEMNIFICATION The Bureau shall indemnify, protect, defend and hold harmless the Authority, FDOT and the City, their officials, employees, representatives, agents, board members (if applicable) and counsel, from and against any and all claims, suits, actions, damages or causes of action of whatever nature arising from any breach or default in performance of any obligation of the Bureau, or anyone acting by, through or under the Bureau, under this Agreement, including specifically, without limiting the generality of the foregoing, compliance by the Project, and the construction thereof, with Legal Requirements, or arising from any act, fault or omission of the Bureau, its members, agents, contractors, employees and servants, whether such claim shall be made by an employee or member of the Bureau, an employee, board member or other 31 representative of the Authority, of FDOT or of the City, or by any third party, and whether it relates to injury to persons (including death) or damage to property and whether it is alleged that the Authority, FDOT or the City, or their officials, employees, representatives, agents, board members (if applicable) and counsel were negligent; provided, however, the Bureau shall not be responsible for any claims, suits, actions, damages, or causes of action arising out of the gross negligence or willful misconduct of the City, the Authority, or FDOT or anyone acting by, through or under any of them. The Bureau shall, at its own cost and expense, pay and satisfy all costs related to any orders, judgments or decrees which may be entered thereon, and shall indemnify the Authority and City from and against all costs, reasonable attorneys' fees, expenses and liabilities incurred in and about the defense of any such claims and the investigation thereof. In case any action or proceeding shall be brought against the Authority and/or the City by reason of any such claim, the Bureau upon notice from the Authority or the City shall defend the same at the Bureau's expense by counsel approved in writing by the Authority and the City, which approval shall not be unreasonably withheld. The Authority and the City reserve the right to defend themselves, using joint counsel or each using separate counsel reasonably acceptable to the Bureau. The Bureau shall promptly notify the Authority and the City, in writing, of any claim or action filed, of whatever nature, arising out of the use of the Property under this Agreement by the Bureau, its agents, contractors or employees, which claim or action could result in liability for the City or the Authority. ARTICLE XI DEFAULT Section 11.1 Events of Default. Each of the following events is defined as an "Event of Default": (a) The failure of a Party to pay any amount due under this Agreement when due, and the continuance of that failure for a period of ten (10) consecutive days after written notice in writing from a non -defaulting Party; (b) The failure of a Party to comply with any of the covenants, conditions and obligations under this Agreement and the continuance of that failure for a period of thirty (30) consecutive days after written notice from a non - defaulting Party specifying the failure; unless with respect to any default which cannot be cured within such thirty (30) day period, the defaulting party, in good faith, promptly after receipt of written notice, shall have commenced and continued diligently to reasonably prosecute all actions necessary to cure the default; (c) The filing of an application by the Bureau: (i) for a consent to the appointment of a receiver, trustee or liquidator of itself or all of its assets; (ii) of a voluntary petition in bankruptcy or the filing of a pleading in any court of record admitting in writing its inability to pay its debts as they come due; (iii) of a general assignment for the benefit of creditors; (iv) of an answer admitting the material allegations of, or its consenting to, or defaulting in answering, a petition filed against it in any bankruptcy proceeding; or 32 iJ3- 206 (d) The entry of an order, judgment or decree by any court of competent jurisdiction, adjudicating the Bureau as bankrupt, or appointing a receiver, trustee or liquidator of it or of its assets, and this order, judgment or decree continuing unstayed and in effect for any period of one hundred twenty (120) consecutive days. Section 11.2 Remedies in Event of Default by the Bureau. Provided that the City is not in default under this Agreement, upon the occurrence of an Event of Default by the Bureau, the City shall have all rights and remedies existing at law or equity, including the right to specifically enforce the City's rights hereunder. Additionally, in the Event of Default by the Bureau, the City and the Authority shall have the right to, notwithstanding the Bureau's Construction Contribution and any credit of same against Rent under the Sublease, (i) immediately terminate this Agreement and the Sublease and, at the City's option, take immediate possession of the Property and do all things necessary to fully complete the construction of the Project. Without restricting the generality of the foregoing, and for purposes aforesaid, upon the occurrence of an Event of Default, the Bureau hereby appoints and constitutes the City its lawful attorney-in-fact with full power of substitution in the premises to complete construction of the Project in the name of the Bureau; to take action and require such performance as it deems necessary under the Construction Contract and performance bond, if any, and to make compromises with the surety or sureties thereunder, it being understood and agreed that this power of attorney shall be a power coupled with an interest and cannot be revoked; or (ii) unless otherwise provided herein, perform, on behalf of and at the expense of the Bureau, any obligation of the Bureau under this Agreement which the Bureau has failed to perform, the cost of which, together with interest thereon at the rate of twelve percent (12%) from the date of such expenditure, shall be deemed additional rent under the Sublease and shall be payable by the Bureau to the City upon receipt of written notice from the City. Upon written request of the City made at any time during the Term, but subject to the rights of any of Bureau's lenders providing funds for the construction of the Project, the Bureau shall collaterally assign to the City all of the Bureau's right, title and interest in and to the Construction Contract and the Architectural Agreement as security for the Bureau's performance of its obligations under this Agreement pursuant to a form of collateral assignment customarily used in a commercial construction loan and otherwise mutually satisfactory to the City and the Bureau. Section 11.3 Remedies in Event of Default by the City and/or the Authority. In the Event of Default by the City and/or the Authority, the Bureau, to the fullest extent permitted by law, shall have the right to pursue any and all remedies available at law or in equity, including the right to immediately terminate this Agreement and the Sublease, sue for and collect damages and to specifically enforce the Bureau's rights, and to enjoin the City and/or the Authority, as applicable. Section 11.4 Unavoidable Delay. The time for any Party's performance of the covenants, conditions or obligations of this Agreement (other than obligations to pay money) shall be extended for the period of any Unavoidable Delay; provided, however that any Party seeking the benefit of Unavoidable Delay shall, within fifteen (15) days after such Party shall have become aware of such Unavoidable Delay, give written notice to the other Parties of the Unavoidable Delay and its reasonably estimated duration. Notwithstanding the foregoing, in the event that the duration of the Unavoidable Delay is reasonably estimated to exceed one (1) year, 33 03- 206 or if the duration of the Unavoidable Delay actually exceeds one (1) year, the Bureau may terminate this Agreement by giving written notice to the other Parties prior to the elimination of the circumstance giving rise to the Unavoidable Delay, in which event this Agreement and the Sublease shall be of no further force and effect and the Parties shall be released from all further obligations with respect thereto, except for the Surviving Obligations. In the event termination occurs prior to achieving 60% completion of construction of the Project, the Bureau shall pay all costs necessary to raze any improvements on the Property and clear the site, if the City elects to do so. The City is authorized to apply the Security Deposit to the payment of the Bureau's obligation hereunder. The Bureau's obligations hereunder shall constitute a Surviving Obligation. Section 11.5 Obligations. Rights and Remedies Cumulative. The rights and remedies of the Parties, whether provided at law, in equity or under this Agreement, shall be cumulative. The exercise by any Party of any one or more of such remedies shall not preclude the exercise by it, at the same or different times, of any other such remedies for the same default or for any other default or breach by any other Party. No waiver made by any Party with respect to performance, manner or time of any obligation of any other Party or any condition to its own obligation under this Agreement shall be considered a waiver of any rights of said Party with respect to the particular obligations of any other Party or condition to its own obligation, or a waiver in any respect in regard to any other rights of said Party. No waiver of any breach of any of the covenants or conditions of this Agreement shall be construed to be a waiver of any other breach or to be a waiver of, acquiescence in, or consent to any further or succeeding breach of the same or similar covenant or condition. Consent of the City or the Authority to any act or matter must be in writing and shall apply only with respect to the particular act or matter to which the consent is given and shall not relieve the Bureau from the obligation, wherever required under this Agreement, to obtain the consent of the City or the Authority to any other act or matter. Section 11.6 Mitigation. The Parties hereby expressly acknowledge and agree that each shall have an affirmative obligation to mitigate their respective damages as a consequence of a default by the other. ARTICLE XII NOTICES Section 12.1 Notice. Any notice or communication under this Agreement shall be in writing and shall be deemed sufficiently given if hand delivered or dispatched by United States certified mail, postage prepaid, return receipt requested, or by nationally recognized overnight delivery service, to the appropriate party or entity at the address specified below or at such other address of which the other party shall be duly notified in writing: 34 03- 206 (a) In the case of a notice or communication to the Bureau, to: Greater Miami Convention & Visitors Bureau 701 Brickell Avenue Suite 2700 Miami, FL 33131 Attention: William D. Talbert, III President & CEO With a copy to: Greenberg Traurig, P.A. 1221 Brickell Avenue Miami, Florida 33131 Attention: Lucia A. Dougherty, Esq. Nancy B. Lash, Esq. (b) In the case of a notice or communication to the Authority, to: Miami Sports and Exhibition Authority 701 Arena Boulevard Miami, Florida 33136 Attention: Executive Director Akerman, Senterfitt & Eidson, P.A. One Southeast Third Avenue 28`h Floor Miami, Florida 33131-1714 Attention: Ronald Kriss, Esq. (c) A duplicate copy of each notice given by any party to this Agreement to the other shall also be delivered to the City at the following addresses: City of Miami 3500 Pan American Drive Miami, Florida 33131 Attention: City Manager City Attorney City of Miami Miami Riverside Building, 9`h Floor 444 S.W. 2"d Avenue Miami, Florida 33130 Department of Economic Development City of Miami Miami Riverside Building, 3rd Floor 35 03- 206 444 S.W. 2"d Avenue Miami, Florida 33130 Attn.: Director All notices shall be deemed received when actually delivered if delivered by hand or by a nationally recognized overnight delivery service and shall be deemed delivered five (5) days following mailing in the event mailed as provided above. All notices of approval, disapproval or default to be given under this Agreement must be in writing and must be given as provided in this Section. ARTICLE XIII MISCELLANEOUS PROVISIONS Section 13.1 Non -Assignable. This Agreement may not be assigned by any of the Parties hereto without the written consent of all of the other Parties, which consent may be withheld in the Parties' discretion. Section 13.2 Successors and Assigns. All of the covenants, conditions and obligations contained in this Agreement shall be binding upon and inure to the benefit of the Parties and their respective permitted successors and assigns. Section 13.3 Amendments. No amendment to this Agreement shall be effective unless it is in writing, signed by the City, the Authority and the Bureau. Section 13.4 Governing Law. This Agreement shall be construed and enforced according to the laws of the State of Florida. Section 13.5 Attorney's Fees and Expenses. In the event of any litigation between the Parties hereto, all expenses, including reasonable attorneys' fees, paralegal fees and court costs, at both the trial and appellate levels incurred the prevailing party, shall be paid by the non - prevailing party. Section 13.6 Waiver of Jury Trial. The Parties hereby knowingly, irrevocable, voluntarily and intentionally waive any right they may have to a trial by jury in respect of any action, proceeding or counterclaim based on this Agreement, or arising out of, under or in connection with this Agreement or any amendment or modification hereof. This waiver of jury trial provision is a material inducement for the Parties hereto entering into the transaction contemplated in this Agreement. Section 13.7 Jurisdiction. The Parties submit to the jurisdiction of the state and federal courts in the State of Florida for purposes of any action or proceeding arising under this Agreement, agree that the venue of any such action or proceeding shall be laid in Miami -Dade County, Florida, and waive any claim that the same is an inconvenient forum. Section 13.8 Severability. If any provision of this Agreement, or any paragraph, sentence, clause, phrase, or word, or the application thereof, is held invalid, the remainder of the Agreement shall be construed as if such invalid part were never included herein. The Agreement shall be and remain valid and enforceable to the fullest extent permitted by law. 36 g 3 206 Section 13.9 Time of Essence. Subject to any extensions expressly provided with respect thereto, time is of the essence as to the performance of the provisions of this Agreement. Section 13.10 Captions. The captions contained in this Agreement are inserted only as a matter of convenience and for reference and in no way define, limit or prescribe the scope of this Agreement or the intent of any provisions thereof. Section 13.11 Obligations Survive Termination. All obligations of either party hereunder not fully performed as of the expiration or earlier termination of the term of this Agreement shall survive the expiration or earlier termination of the term hereof, including, without limitation, all payment obligations. Section 13.12 Duplicate Originals. This Agreement may be executed in any number of counterparts, each of which shall constitute an original, but all of which shall constitute one and the same instrument. Section 13.13 Approvals, Consents and Representatives. Wherever in this Agreement the approval or consent of any party is required, it is understood and agreed that unless specifically stated to the contrary, such approval or consent will not be unreasonably withheld, conditioned or delayed. All inquiries, requests, instructions, authorizations and other communications with respect to matters covered by this Agreement from the Bureau to the Authority or the City will be made to the Director of the Department of Economic Development, or such other person as may be designated by the City Manager, and if the inquiry relates to a construction matter, to the Project Inspector (if one is designated) or the individual designated in Section 5.4 if no Project Inspector has been designated. All inquiries, requests, instructions, authorizations and other communications with respect to matters covered by this Agreement from the Authority or the City to the Bureau will be made to one of the representative of the Bureau set forth in this paragraph. Section 13.14 Entire Agreement. This Agreement, and all exhibits attached hereto, represents the total agreement between the Parties with respect to the subject matter hereof. 37 03- 206 IN WITNESS WHEREOF, the Parties hereto have individually, through their proper officials, executed this Sublease the day and year first herein above written. ATTEST: By: Priscilla A. Thompson, City Clerk ATTEST: By: Print Name: Title: ATTEST: By: Print Name: Title: CITY OF MIAMI, a municipal corporation of the State of Florida By: Carlos A. Gimenez, City Manager MIAMI SPORTS AND EXHIBITION AUTHORITY By: Print Name: Title: GREATER MIAMI CONVENTION AND VISITORS BUREAU By: Print Name: Title: APPROVED AS TO FORM AND APPROVED AS TO INSURANCE CORRECTNESS REQUIREMENTS Alejandro Vilarello City Attorney Risk Management Division 38 Administrator 03- 206 f i CITY OF MIAMI, FLORIDA INTER -OFFICE MEMORANDUM TO: he Honora a r and hers DATE: FEB 2 0 2003 FILE O the Ci Commission SUBJECT: Aviation and Visitors Center FROM: .Io Arflola REFERENCES: C' Administrator/ City Manager ENCLOSURES: RECOMMENDATION The administration recommends the City Commission adopt the attached Resolution which: (1) authorizes the City Manager to execute an Amended and Restated Interlocal Agreement with the Miami Sports and Exhibition Authority (MSEA) for the development, construction and management of a visitors and aviation center on approximately 5.6 acres on Watson Island for an initial term to expire August 13, 2042 or for 30 years commencing on the Commencement Date, whichever expires later, with the City's exclusive option to extend the term for two successive terms of ten (10) years each; (2) consents to the terms of the Amended and Restated Sublease and Operating Agreement between the MSEA and the Greater Miami Convention and Visitors Bureau ("Bureau"); (3) authorizes the City Manager to execute an Amended and Restated Funding and Development Agreement by and among the City, MSEA and the Bureau; and (4) authorizes the City Manager to execute such other documents as may be necessary or desirable to implement the terms of the Amended and Restated Interlocal Agreement and the Amended and Restated Funding and Development Agreement, or as may otherwise be provided in said agreements. BACKGROUND The City, the Miami Sports and Exhibition Authority ("MSEA") and the Greater Miami Convention and Visitors Bureau (the "Bureau") (collectively the "Parties") have agreed to develop and operate an air transportation facility in Watson Island (the "Project") pursuant to agreements that were negotiated and executed in 1997. The existing agreements contemplated that the City would be responsible for the construction of the Project. The Project was originally to be funded by FDOT and the Bureau on a 50%/50% basis and the cost of construction was approximately $6 million. The cost of the Project has subsequently increased to approximately $11.7 million and is being funded by FDOT and the Bureau on a 401/o/60% basis. This increase is primarily due to the passage of time (the Project was delayed while the City was considering an agreement for seaport operations and negotiated a settlement and sublease with Chalks). The City requested the Bureau to amend the agreements to provide for the Bureau to be responsible for overseeing the construction of the Project, including, without limitation, the construction management, the bidding and the award of the construction contracts, and responsibility for cost overruns. Attached hereto for reference is a summary of the significant changes to the business points of the existing agreemenji, and an executive summary for each of the agreements. JA:&H M:m Amd Interlocal A r g 03- 206 1 WATSON ISLAND AVIATION AND VISITOR'S CENTER SIGNIFICANT BUSINESS POINTS ORIGINAL AGREEMENTS 1. City responsible for construction of the facility. Bureau's sole obligation was to fund. 2. Bureau responsible for $3.2 Million (approximately 50%) of the project costs. 3. Bureau's funding obligation was subject to a $3.2 Million cap. All sums paid by Bureau (at its election) in excess of the cap were to be reimbursed to Bureau through the net operating income of the facility until paid in full. 4. City to contribute $3.2 Million (approximately 50%) of project costs through a grant from FDOT. Agreements silent as to City's responsibility for cost overruns. 5. The aggregate rent paid by Bureau is $23.33 SF, which includes a credit of $10.32 SF as reimbursement of Bureau's $3.2 mil construction contribution. 6. The Operating and Maintenance (O&M) component of rent is a direct pass through and the Bureau pays its proportionate share of these costs. NEW AGREEMENTS 1. Bureau assumes responsibility for overseeing construction of the entire air 2. Bureau responsible for $7 Million (approximately 60%) of the project costs, $3.8 Million of which will be funded through a CDT Grant. 3. Bureau responsible for all cost overruns without reimbursement. 4. FDOT grant to City increased to $4.7 Million (approximately 40% of project costs). City to use diligent effort to obtain additional funding from FDOT and other sources. City has no responsibility for cost overruns. 5. The aggregate rent to be paid by Bureau shall remain $23.33 which includes a credit of the base rent in the amount of $5.76 SF as a partial credit of the Bureau's Construction Contribution. 6. During expense years 1 and 2, the Bureau shall pay 100% of its proportionate share of the O&M expenses. In the event the actual O&M in years 1 & 2 are less than that paid by the Bureau, the funds received in excess shall be deposited in the shortfall reserve account. Commencing in year 3 and each year thereafter, the Bureau's proportionate share shall not increase by more than 3% per year. 03- 206 ORIGINAL AGREEMENTS 7. City to receive PILOT from airport. Interlocal was silent as to what happened in the event of a shortfall. 8. Location of project did not require demolition of any structures nor removal of fuel tanks and was silent as to environmental remediation, if any was required. 9. City responsible for the architect's services under the Professional Services Agreement. 10. City responsible for construction of Project including procurement of all construction services. 11. Bureau responsible for maintaining, repairing and providing operating services to the building with reimbursement for costs beyond Bureau's pro rata share from other building tenants/subtenants. NEW AGREEMENTS 7. City has agreed that MSEA shall use the PILOT proceeds to first, pay the City's portion of the press center rent; then to fund a shortfall reserve account. The net PILOT proceeds shall be deposited in a shortfall reserve account until such time as the account achieves a balance of $425,000. At any time the shortfall reserve account is used to fund shortfalls, then the next PILOT payment due to the City shall be deposited in the shortfall reserve account until such time as the account again reaches a balance of $425,000. 8. Shift of location of project by City requires demolition of Bait & Tackle Shop and removal of Underground Storage Tanks (UST). The City to cause building to be demolished at its sole cost. City to cause tanks to be removed and perform environmental remediation of the Bait and Tackle Shop area. The cost of the tank removal and environmental remediation shall be paid as follows: (i) Bureau shall pay the first $60,000; (ii) City shall pay next $140,000; (iii) City and Bureau to split the next $100,000 on a 50/50 basis. Either party may cancel if cost of remediation exceeds $300,000. 9. City to assign Bureau Professional Services Agreement with the architect. 10. Bureau to issue RFQ for Construction Manager and party to all construction contracts. 11. Bureau to provide janitorial services for its area and the press center and VIP conference center. MSEA to provide all other building services with reimbursement from tenants on a pro -rata basis. 03 206 ORIGINAL AGREEMENTS NEW AGREEMENTS 12. Agreements are silent as to relocation of 12. Utilities must be placed underground. utilities outside of airport boundaries. Bureau will pay only for the cost of utilities to connect to the building. If the cost of relocation does not exceed $400,000, then the relocation work will be performed by, or at the direction of the City, at no cost to Bureau. If the cost exceeds $400,000, then the City shall have until June 1, 2003 to notify the parties of its intent to terminate if additional funds cannot be secured by Sept 1, 2003. In the event the additional funds are not secured by Sept 1, 2003, then the City may terminate the agreements. 13. Agreements are silent as to construction of 13. City to fund construction of simple entry access road to aviation center. road to aviation facility. 14. MSEA to receive rents from Chalks during 14. Rent from Chalks during pre -construction Phase I re-constructionphase) shall be paid to City. 15. No press center 15. Bureau has agreed to pay 50% of the rent due for the press center which contains approximately 1,088.7 SF and VIP conference center which contains approximately 550 SF. The City will pay the balance of the rent in the form of a reduction of the PILOT. 16. No right -of -first refusal to food service area 16. Bureau will have a right -of -first refusal to rent the food service area in the event the sublease agreement with Bimini Landing expires or is terminated under the same terms and conditions as the sublease agreement with Bimini Landing. 17. Sublease with Bureau provided that they 17. MSEA must be reasonable in the granting could sublease only with the prior written or denial of its consent to a sublease or consent of MSEA. assignment. Notwithstanding same, MSEA has the right to recapture the space. 18. Silent as to use of rooftop and observation 18. Bureau shall control the use of the deck. Observation Deck by scheduling its use. The City, MSEA and subtenants of the building shall be entitled to use said space at no cost except the payment of direct expenses associated with such use such as security. The Bureau shall provide all janitorial services required for the rooftop area including the restrooms located on the roof. MSEA shall set the fees for any other party's use of the rooftop area. 03- 206 ORIGINAL AGREEMENTS NEW AGREEMENTS 19. In the event the building is not rebuilt 19. In the event the building is not rebuilt following a casualty, insurance proceeds are to following a casualty, insurance proceeds shall be paid to the City, subject to the rights of any be paid as follows: lender and any other existing contractual a) 1S` to City to raze the Building and other obligation. improvements on the Property and clear the site; b) next to Bureau and FDOT in proportion to unamortized portion of their respective construction contributions (or the portion thereof required to be reimbursed under the JPAs, as applicable), assuming amortization of each such contribution on a straight-line basis over 30 years; c) balance to the Cit Executive Summary Amended and Restated Interlocal Agreement between the City of Miami (City) And Miami Sports and Exhibition Authority (Authority) Property Approximately 5.6 acres on Watson Island as legally described in Exhibit A of the Interlocal Agreement Additional Property The City will use reasonable efforts to obtain authorization from the State of Florida, under the deed restrictions, to add approximately % acre of land adjacent to the airside to be used in connection with the airside area. Use The property shall be used solely for development, construction, management and operation of an air transportation facility and related facilities and improvements. Initial Term The initial term shall be until August 13, 2042 or for 30 years commencing on the Commencement Date, whichever expires later. The Commencement Date shall mean (a) the date on which the Authority takes possession or commences use of the Air Transportation Facility, or (b) the date on which the certificate of occupancy for the Air Transportation Facility is issued, whichever occurs first. Option Rent The City, at its sole and exclusive option, upon request of the Authority, may extend the term for two successive extension terms of 10 years each. The consideration to be paid to the City by the Authority is the operation, management and maintenance of the Air Transportation Facility and the performance of a public service. The Authority agrees that the rent to be charged to subtenants shall be established in accordance with the requirements of the Florida Department of Transportation (FDOT), and if applicable, the requirements of the Federal Aviation Administration (FAA). All rents received from Subtenants shall be deposited in a separate account entitled Airport Revenue Fund. It should be noted that all rents from the Air Transportation Facility must be used exclusively for the operation, management and maintenance of the Facility. 1 increase in the O&M as contemplated by the preceding sentence, the Authority shall have the right to apply funds in the Shortfall Reserve to fund such shortfall, provided, however, that (i) prior to applying the funds, the Authority shall have for 15 days used diligent efforts to collect all Airport Revenues due and owing; and (ii) the Authority shall not be entitled to use the Shortfall Reserve to fund any shortfall to the extent such shortfall resulted from the Authority's gross negligence or willful misconduct, which Shortfall shall be satisfied from the Authority's own funds or from other funds procured by the Authority. Insurance Authority shall obtain and maintain during the term all risk property insurance, liability and worker's compensation. 03- 2063 Executive Summary Amended and Restated Sublease and Operating Agreement between the Miami Sports and Exhibition Authority (Authority) And Greater Miami Convention and Visitors Bureau (Bureau) Subleased Premises Subleased Premises shall mean the Visitors Center which shall consist of 2,996.2 SF on the first floor of the building including the Aviation Museum, and the Offices which shall consists of 27,615.4 SF located on the second floor of the building, together with associated parking. Use The Subleased Premises shall be used for a Visitors Center, Aviation Museum and Offices and for related and ancillary uses in connection therewith. Initial Term The initial term shall be for a period of 30 years commencing on the Commencement Date and ending 30 years thereafter. The Commencement Date shall mean (a) the date on which the Bureau takes possession or commences use of the Subleased Premises; or (b) the date on which the certificate of occupancy for the Subleased Premises is issued, whichever occurs first. Option Rent Bureau may extend the term for two successive extension terms of 10 years each. These extensions are subject to the extension of the Interlocal Agreement between the City and MSEA, which Interlocal Agreement may be extended in the City's sole discretion for up to an additional 20 years. $4.80 sf Building O&M $8.54 sf Direct Airport O&M $2.98 sf Indirect Airport O&M (PILOT) $0.00 sf Base Rent (no Base Rent due in consideration of Bureau's Construction Contribution) During the first 2 expense years, Bureau shall pay its percentage share of estimated and actual All Direct O&M Expenses, including any shortfalls during such 2 year period. Commencing with the 3`d expense year and each expense year thereof, the Bureau's percentage share of estimated and actual All Direct O&M shall not exceed 103% of the actual amount of Bureau's percentage share of All Direct O&M for the immediately 1 02- 206 preceding Expense Year; it being the intention of the parties that increases in Bureau's estimated and actual Percentage Share of All Direct O&M Expenses for the Subleased Premises (but not Press Center Rent) shall be capped from one Expense Year to the next (after the 2"d Expense Year) at 3% per year. All Direct O&M Expenses in excess of the 3% cap may be paid from the Shortfall Reserve account. Indirect Airport O&M shall be increased each year by the lesser of (i) increases in the CPI; or (ii) 103%. Press Center Rent The Bureau shall pay to Authority 50% of the monthly rent due for the Press Center and VIP Conference Center under the City's Occupancy Agreement for such space. Parking To the extent legally permissible, Authority shall sublease to Bureau 5 reserved parking spaces adjacent to the Building and 22 reserved parking spaced within the airport boundaries. In addition, the Authority shall provide, or cause the City to provide, adjacent to the Air Transportation Facility the greater of (a) 141 parking spaces; or (b) the number of spaces required by law as of the Commencement Date. The Bureau shall be responsible for payment of rates for use of the parking spaces on an "as -used" basis. The rates for the parking spaces shall not exceed the lesser of (i) the then prevailing municipal rates for parking or (ii) such rates as may be negotiated by Bureau. Impositions Authority shall include in all sublease agreements an affirmative obligation on the part of the respective subtenant to pay any and all Impositions, including but not limited to, ad valorem taxes. In the event the Property of any of the improvements is exempt from ad valorem taxation, the City shall receive a Payment in Lieu of Tax (PILOT) in an initial amount of $2.98 per rentable square foot per annum of the building from the Commencement Date through the end of the first full 12 -month Expense Year. The PILOT shall increase on each Expense Year Anniversary by CPI or 103%, whichever is less. The Authority shall deposit the net proceeds of the PILOT in a separate fund ("Shortfall Reserves") until the balance of said account reaches $425,000. "PILOT Net Proceeds" shall mean the balance of the PILOT due to the City after payment of rents due from the City to Authority for the press center. At any time the Shortfall Reserves account balance falls below $425,000, Authority shall deposit the next payment(s) of PILOT Net Proceeds due to the City in said account until the balance returns to $425,000. Shortfalls If at any time during any Expense Year the Airport Revenues are insufficient to satisfy any costs and expenses associated with the operation, management, maintenance or repair of the Project (a "Shortfall"), the Authority shall increase the operating and maintenance 2 03- 206 (O&M) component of rent as provided in the respective sublease to fund such Shortfall. If such Airport Revenues are insufficient to fund such Shortfall after giving effect to the increase in the O&M as contemplated by the preceding sentence, the Authority shall have the right to apply funds in the Shortfall Reserve to fund such shortfall, provided, however, that (i) prior to applying the funds, the Authority shall have for 15 days used diligent efforts to collect all Airport Revenues due and owing; and (ii) the Authority shall not be entitled to use the Shortfall Reserve to fund any shortfall to the extent such shortfall resulted from the Authority's gross negligence or willful misconduct, which Shortfall shall be satisfied from the Authority's own funds or from other funds procured by the Authority. Notwithstanding the above, to the extent that actual All Direct O&M Expenses for the first 2 Expense Years are less than the estimated amount of All Direct O&M Expenses, Bureau shall nevertheless pay Bureau's Percentage Share of the estimated All Direct O&M Expenses and any unused funds shall be deposited in the Shortfall Reserve to cover future Shortfalls. Insurance Bureau shall obtain and maintain during the term commercial general liability, all risk property insurance for Bureau's improvements and personal property, automobile liability, worker's compensation and business income insurance. Authority shall obtain and maintain during the term all risk property insurance for the Building and other improvements comprising the Air Transportation Facility. 3 03- 206 Executive Summary Amended and Restated Funding and Development Agreement between the City of Miami (City), Miami Sports and Exhibition Authority (Authority) and Greater Miami Convention and Visitors Bureau (Bureau) Property Approximately 5.6 acres on Watson Island as legally described in Exhibit A of the Agreement Project The design and construction of a Regional Air Transportation Facility and Visitors Center, including an aviation museum, exhibition spaces, press center, parking areas and other related facilities and improvements ancillary to the operation of a Regional Air Transportation Facility and Visitors Center. Term The term of this Agreement shall commence on the effective date of the Original Funding Agreement and shall terminate on the Completion Date. The Completion Date shall be the date that the Project has achieved substantial completion and all "punch list" items have been corrected. Project Cost Estimated Project Cost is $11,700,000 Construction Expenses Construction expenses shall be paid as follows: 1) The Bureau has agreed to contribute $7,000,000 for construction of the Project, of which $3,800,000 will be funded through a Convention Development Tax Grant issued by Miami -Dade County. Bureau's Construction Contribution shall be equal to 53% of the cost of constructing Non -Public Areas and 50% of the cost of constructing the Public Areas. The Bureau shall be responsible for payment of all cost overruns. 2) The City's Construction Contribution is the amount to be funded by the Florida Department of Transportation (FDOT) under the Joint Participation Agreements (JPAs) in an amount not to exceed $4,700,419. Funds to cover the cost of demolition of the B/T Shop site and Environmental Remediation Work as described below are excluded from the above referenced contributions and shall not be part of the Project costs. Demolition and Environmental The City, at its sole cost, shall demolish the bait and tackle shop (`B/T Shop site") The City has procured a Phase II report for the B/T Shop site. The City shall cause the removal and proper disposal of the underground storage tanks (USTs) located at the B/T Shop site and the remediation of all contaminated soil and groundwater (if any) affecting the B/T Shop site in compliance with environmental laws ("Environmental Remediation Work"). Upon the removal and/or remediation of the environmental conditions, the City shall obtain a "no further action" letter or its equivalent from applicable environmental enforcement agencies. Upon removal of the USTs, but prior to commencing any further remediation work, the City shall submit to Bureau a budget reflecting all costs for such work. If the budget indicates that the cost of Environmental Remediation Work will exceed $300,000, then the City and the Bureau shall have the right to terminate this Agreement; provided however, that the City may not terminate the Agreement if the Bureau agrees to fund all costs in excess of $300,000. The parties agree that the costs for the Environmental Remediation Work, including the cost of removal of the USTs, shall be funded (i) first, by the Bureau up to $60,000, (ii) next, by the City up to $140,000, (iii) next, by the Bureau and City on a 50-50 basis up to an additional $100,000, and (iv) if Bureau assumes responsibility for costs in excess of $300,000, by the Bureau in the amount of such additional costs. The City shall engage an environmental consultant to conduct an environmental assessment of the Property, excluding the B/T Shop site, to determine the existence of any additional adverse environmental conditions ("Additional Environmental Conditions"). The cost of this report shall be part of the Project cost. If the cost of remediation of the Additional Environmental Conditions, together with the Environmental Remediation Work, exceeds $300,000, the Bureau shall have the right to terminate this Agreement. If the Bureau does not terminate the Agreement, then the remediation of the Additional Environmental Conditions shall be part of the scope of work for the Project and any funds that remain unused from the Environmental Remediation Work shall be applied to cost of remediation of the Additional Environmental Conditions prior to utilizing Project funds. Entry Road City, at its sole cost, shall design and construct an entry road providing access to the Project. 03- 206 2 Utilities Utilities at the Property must be placed underground. Bureau will pay only for the cost of utilities to connect to the building. If the cost of relocation does not exceed $400,000, then the relocation work will be performed by, or at the direction of the City, at no cost to Bureau. If the cost exceeds $400,000, then the City shall have until June 1, 2003 to notify the parties of its intent to terminate if additional funds cannot be secured by September 1, 2003. In the event the additional funds are not secured by September 1, 2003, then the City may terminate the Agreement. Replat City shall record a replat of the Property prior to substantial completion of the Project. Assignment of Architectural Agreement City shall assign to Bureau the City's rights and obligations under the architectural agreement with Spillis, Candela and Partners, Inc., dated November 3, 1997, as amended. Press Center The City shall be solely responsible for payment of all tenant improvements and furniture, fixtures and equipment required to construct or fixture the Press Center. Change Orders The Bureau shall be responsible for the cost of change orders that it requires or for change orders necessitated by the Bureau's failure to construct the Project substantially in accordance with the plans. City shall be responsible for the cost of change orders requested by the City or change orders requested by a party to an Occupancy Agreement, which change order has been approved by the City. Conditions Precedent The Bureau's obligations under this Agreement shall be subject to satisfaction of the following conditions by June 30, 2003 or such other date as may be specified below: (a) Bureau shall have obtained satisfactory evidence that utility services are of sufficient capacity and availability; (b) Bureau shall have received a current commitment for title insurance; (c) Bureau shall have confirmed that the Property is free of encroachments or conditions that would prevent the Project from being constructed; (d) Within 30 days after the Commencement Date (the date this Agreement is signed) the Bureau shall submit to the City evidence that it has funds necessary to pay Bureau's construction Contribution and City shall submit to Bureau evidence that it has funds available to pay a construction draw prior to reimbursement from FDOT; (e) Within 30 days after the Commencement Date, the architect shall certify that (i) the architectural agreement is in full force and effect, (ii) there is no default, and (iii) architect's total fees paid to -date and amounts remaining due; 3 v°3- 206 (f) FDOT shall have approved (i) this Agreement, (ii) the Amended and Restated Interlocal Agreement, (iii) the Amended and Restated Sublease Agreement, (iv) the preliminary cost estimate for the Project, and (v) the disbursement agreement; (g) The Transportation Security Administration (TSA), formerly the Federal Aviation Administration (FAA), shall have approved the airport layout plan; (h) The City shall have provided satisfactory evidence of its plan to fund construction of the entry road, the additional parking area and relocation of utilities; (i) The Bureau shall have received evidence that the date by which construction is required to commence under the Convention Development Tax Grant issued by Miami -Dade County to fund $3.8 million of the Bureau's Construction Contribution has been extended. In the event one or more of the above conditions is not satisfied by June 30, 2003, then the Bureau shall have the right to terminate this Agreement. Other Termination Rights Bureau shall have the right to terminate this Agreement upon the occurrence of any of the following events: (a) within 10 business days after receipt of each cost estimate, if the cost estimate for the Project exceeds the sum of $11,700,000 (b) within 10 business days after receipt of sealed bids, if the actual construction cost of the Project exceeds the cost estimate (c) the City fails to obtain possession of the B/T Shop site by June 30, 2003. The Bureau shall have the right to extend the deadline for the City obtaining possession of the B/T Shop site to December 30, 2003 4 03- 206