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Home My WebLink AboutR-00-0264r� J-00-253 3/14/00 6a RESOLUTION NO.>O'' " A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S), RELATING TO THE PARROT JUNGLE PROJECT ON WATSON ISLAND, AUTHORIZING THE CITY MANAGER TO EXECUTE (i) A DEVELOPMENT AGREEMENT WITH MIAMI-DADE COUNTY AND PARROT JUNGLE AND GARDENS OF WATSON ISLAND, INC., IN SUBSTANTIALLY THE ATTACHED FORM, ESTABLISHING THE TERMS AND CONDITIONS OF A $25 MILLION SECTION 108 LOAN GUARANTEE FROM MIAMI-DADE COUNTY TO PARROT JUNGLE AND GARDENS OF WATSON ISLAND, INC. AND (ii) A MODIFICATION TO THE LEASE AND DEVELOPMENT AGREEMENT DATED SEPTEMBER 2, 1997, BETWEEN PARROT JUNGLE AND GARDENS OF WATSON ISLAND, INC. AND THE CITY, IN SUBSTANTIALLY THE ATTACHED FORM, INCORPORATING CERTAIN PROVISIONS RELATING TO THE FINANCING OF THE PROJECT BY AN INSTITUTIONAL LENDER; AND (iii) SUCH OTHER DOCUMENTS AS MAY BE REQUIRED TO ACCOMPLISH THE PURPOSE OF THE FOREGOING DOCUMENTS, ALL IN FORM AND SUBSTANCE ACCEPTABLE TO THE CITY ATTORNEY; FURTHER CONSENTING TO A PROPOSED SUBLEASE OF THE PROPERTY BY PARROT JUNGLE AND GARDENS OF WATSON ISLAND, INC. (THE "LESSEE") TO A LIMITED LIABILITY COMPANY TO BE FORMED FOR THIS PURPOSE, SUBJECT TO THE, FOLLOWING CONDITIONS: (I) THE LESSEE IS NOT RELEASED FROM ANY ,OBLIGATIONS UNDER THE LEASE, (II) THE OWNERSHIP AND CONTROL OF THE LESSEE AND THE PROPOSED SUBLESSEE ARE IDENTICAL, (III) THE LESSEE, THE PROPOSED SUBLESSEE AND THE SUBLEASE AGREEMENT COMPLY WITH ALL APPLICABLE PROVISIONS AND REQUIREMENTS OF ARTICLE 8 OF THE LEASE, AND (IV) LESSEE AND SUBLESSEE PROVIDE TO THE CITY SUCH DOCUMENTATION AS THE CITY MAY REQUIRE TO EVIDENCE FULL COMPLIANCE WITH THE CONDITIONS SET FORTH HEREIN, ALL IN FORM AND SUBSTANCE ACCEPTABLE TO THE CITY ATTORNEY; FURTHER AUTHORIZING THE CITY MANAGER TO EXECUTE SUCH DOCUMENTS AS MAY BE REQUIRED FOR THESE PURPOSES, IN A FORM ACCEPTABLE TO THE CITY ATTORNEY. � CITY COMMISSION MEETING OF MAR 2 3 2000 Resolution No. �0 X64 T WHEREAS, Miami -Dade County applied for a loan guarantee pursuant to the U.S. Housing and Urban Development ("HUD") Section 108 loan guarantee program to facilitate the development of the Parrot Jungle and Gardens of Watson Island project; and WHEREAS, the City of Miami ("City") and Miami -Dade County ("County") entered into a Joint Participation Agreement ("JPA") dated September 9, 1998, in which the City agreed to replace the County as the guarantor of 800 of said HUD loan, upon satisfaction of the following conditions: (a) the earlier of (i) the dissolution of the State of Florida Financial Oversight Board, or (ii) four years from the date of approval by HUD of the County loan application; (b) the City has a total Community Development Block Grant ("CDBG")* Section 108 loan capacity to substitute itself as guarantor; (c) the County loan is current and no event of default is in existence; and, (d) the endorsement of the loan documents by the County in favor of the City, without recourse, subject to the County's continuing interest as a guarantor of twenty percent (200) of the County loan; and WHEREAS, HUD approved County's Section 108 loan application on April 26, 1999, in the amount of $25 million, subject to certain conditions (the "Section 108 Loan"); and WHEREAS, the County, Parrot Jungle and Gardens of Watson Island, Inc. and the City wish to enter into a Development Agreement which establishes the terms and conditions of the Page 2 of 6 Section 108 Loan and the City's agreement to replace the County as guarantor of 80% of said Loan, including the City's agreement to "use its reasonable good faith efforts not to reduce its CDBG Section 108 loan capacity to allow it to substitute itself as a guarantor for eighty percent (80%) of the Section 108 loan"; and WHEREAS, it is further necessary to modify the Lease and Development Agreement dated September 2nd 1997, between Parrot Jungle and Gardens of Watson Island, Inc. and the City (the "Lease".) to incorporate certain provisions relating to the financing of the Project by a private lending institution, as contemplated in the Lease and the Development Agreement; and WHEREAS, the principals of Parrot Jungle and Gardens of Watson Island, Inc. have requested the City to consent to a sublease of the entire property to a limited liability company, to be formed for this purpose, and represent to the City that the sole reason and purpose for the proposed sublease are income tax and estate planning considerations, and that ownership and control of the new entity will be identical with that of Parrot Jungle and Gardens of Watson Island, Inc.; and WHEREAS, the Lease grants the City full discretion to consent, or withhold its consent, to any proposed transfer by Parrot Jungle and Gardens of Watson Island, Inc., including a sublease; Page 3 of 6 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 hereby adopted by reference thereto and incorporated herein as if fully set forth in this Section. Section 2. The City Manager is hereby authorized" to execute a Development Agreement with Miami -Dade County and Parrot Jungle and Gardens of Watson Island, Inc., in substantially the attached form, establishing the terms and conditions of a $25 million Section 108 loan guarantee from Miami -Dade County to Parrot Jungle and Gardens of Watson Island, Inc., together with such other documents as may be required to accomplish the purpose of said agreement, in form and substance acceptable to the City Attorney. Section 3. The City Manager is hereby further authorized" to execute a Modification to the Lease and Development Agreement dated September 2, 1997, between Parrot Jungle and Gardens of Watson Island, Inc. and the City, in substantially the attached form, incorporating certain provisions relating to the financing of the Project by an institutional �i 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. 0 - n` Page 4 of 6 40 N lender, together with such other documents as may be required to accomplish the purpose of said agreement, in form acceptable to the City Attorney. Section 4. The proposed sublease of the property by Parrot Jungle and Gardens of Watson Island, Inc. (the "Lessee") to a Limited Liability Company to be formed for this purpose is approved, subject to the following conditions: (i) the Lessee is not released from any obligations under the Lease, (ii) the ownership and control of the Lessee and the proposed Sublessee are identical, (iii) the Lessee, the proposed Sublessee, and the Sublease Agreement comply with all applicable provisions and requirements of Article 8 of the Lease, and (iv) Lessee. .and Sublessee provide to the City such documentation as the City may require to evidence full compliance with the conditions set forth herein, all in form and substance acceptable to the City Attorney. Section 5. Upon satisfaction of all of the conditions set forth in Section 4 above, the City Manager shall be authorized to execute such documents as may be required to consent to the sublease, in a form acceptable to the City Attorney. Page 5 of 6 r M Section 6. This Resolution shall become effective immediately upon its adoption and signature of the Mayor .2/ PASSED AND ADOPTED this 23rd day of March , 2000. JOE CAROLLO, MAYOR In accordance with Miami Code Sec. 2.36, since the Mayor did not indicate aparov�l of this legislation by signing it in the designated platprovided, said legisls `?icy• becomes effective with the elapse of ten (1 days ",om the74� omm;�s regarding same, without the Mayor exergi'sir�q eto. j ATTEST: 3 WALTERJ. FOEMAN CITY CLERK TNESS:Ctl-' 7J RO VI L. TTO�AR'NEY 4 46:ORS:RCL zi 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 6, of 6 DEVELOPMENT AGREEMENT between MIAMI-DADE COUNTY and PARROT JUNGLE AND GARDENS OF WATSON ISLAND, INC. and THE CITY OF MIAMI DEVELOPMENT AGREEMENT, made and entered into as of the day of 2000, by and between MIAMI -DADE COUNTY, a political subdivision of the State of Florida (the "County", which includes its successors and assigns), PARROT JUNGLE AND GARDENS OF WATSON ISLAND, INC., a Florida corporation ("Parrot 'Jungle", which term includes its successors and assigns), and the CITY OF MIAMI, a municipal corporation of the State of Florida (the "City", which term includes its successors and assigns), RECITALS: A. Parrot Jungle, subject to the terms and conditions of this Agreement, plans to develop a botanical garden attraction at Watson Island; and B. Parrot Jungle has entered into a lease agreement with the City of Miami, dated September 2, 1997 (hereinafter referred to as the `'Lease") pursuant to which Parrot Jungle has leased from the City of Miami a portion of Watson Island to develop said demised property as an attraction for the public, as set forth in said Lease (a copy of the Memorandum of Lease executed with respect to said Lease is attached hereto as Exhibit "G" and made apart hereof by reference); and C. Parrot Jungle has indicated that the total cost of the relocation and expansion project will be substantially as set forth in its sources and uses of funds for this project, a copy of which is attached hereto as Exhibit A; and D. Miami -Dade County has acted in reliance upon Parrot Jungle's representations regarding its other sources and amounts of financing for this project (See Exhibit " A", Sources & Uses of Funds); and 00- Z64 E. Community Development Block Grant(" CDBG") programs authorized under Title I of the Housing and Community Development Act of 1974, as amended (" HCDA" ), and as provided in the regulations thereunder, 24 CFR Part 570 (the "CDBG Regulations"), including the Section 108 Loan Guarantee Program provided under Subpart M, 24 CFR 570.700-570.710, of the CDBG Regulations (the "Section 108 Program"), have as their primary objective the development of viable urban communities by, among other things, providing expanding economic opportunities, principally for persons of low and moderate income; and F. HUD is authorized pursuant to the Section 108 Program and the CDBG Regulations to guarantee loans to the County for the provision of assistance, including grants to private for-profit business where necessary and appropriate to carry out economic development projects which meet the national objective of benefit to persons and families of low or moderate income, by creating or retaining jobs which are or will be held by or made available to persons of low or moderate income, and Parrot Jungle anticipates that relocating its existing facility to Watson Island will create and/or retain "full time equivalent" permanent jobs; and G. In Section 290.0411, Florida Statutes, the Florida Legislature declared that providing expanded economic opportunities, principally for persons of low or moderate income, is a state objective, and that community development activities to expand economic opportunities, providing direct benefit to persons of low or moderate income, are public purposes for which public money may be borrowed, expended, loaned and granted; and H. Section 125.045, Florida Statutes provides for the economic assistance to for-profit entities by the County, including grants to foster economic development in the County; and 1. Parrot Jungle has agreed to contribute to the Aviary at Metrozoo a total of $2,000,000 as set forth hereinbelow; and J. The Board of County Commissioners of Miami -Dade County (the "Board"), by Ordinance No. (the "Ordinance") authorized the County to enter into this Agreement and to apply to HUD for a loan guarantee pursuant to the Section 108 Program to help facilitate the development of the Parrot Jungle project. The County's application has been approved by HUD, subject to certain conditions. The County, based upon HUD's approval, has agreed to loan to Parrot Jungle Twenty Five Million Dollars ($25,000,000.00) (the "Loan") of the funds needed to develop the project.. The Loan is pursuant to HUD guidelines with regard to providing economic development assistance for the location, creation and retention of jobs; and K. The City of Miami and the County have entered into a Joint Participation Agreement dated 9`}' day of September 1998 (the " JPA" ), a copy of which is attached hereto as Exhibit" B" and made a part hereof by reference, in which the City of Miami has agreed, upon satisfaction of the conditions set forth therein and herein, to replace the County as the guarantor of 80% of the.Loan. NOW, THEREFORE, for and in consideration of the mutual covenants and agreements set forth herein, the parties hereby covenant and agree: 00- 264 ft SECTION 1. PARROT JUNGLE LOAN: 1. 1. LOAN TERMS; The proceeds of the HUD Guaranteed Loan ("HUD Loan") have been appropriated by the Ordinance when received and shall be loaned by the County to Parrot Jungle (the "Loan") upon the following terms and conditions, to wit: (1) Principal amount of Loan to Parrot Jungle: $25,000,000.00. (�}(2) Interest rate: The Loan shall bear interest at the "HUD Rate" charged to the County plus one half of one (.5%) percent. Parrot Jungle and/or the County, as required by HUD, will promptly apply for interim financing pending the timing of the HUD bond sale, pursuant to which bond sale HUD will ultimately obtain the funds for the permanent HUD Loan. The HUD Rate is the rate that HUD charges the County for the interim financing or on the Promissory Notes to be issued by the County to evidence the HUD Loan ( the "HUD Notes"), as applicable. The HUD Rate of interest shall be fixed upon or prior to the signing by Parrot Jungle of the documents evidencing the Loan by the County to Parrot Jungle (the "Loan Documents") and the Loan shall thereafter be a fixed rate loan (3) Maturity: The Loan shall mature 20 years from the date of execution of the Loan Documents by Parrot Jungle in favor of the County. (4) Repayment of the Loan: (a) Interest Payments: During the first three (3) year period of the Loan term commencing with the funding of the first draw of approximately Ten Million ($10,000,000.00) dollars, payments of interest only will be required on the principal as drawn and funded to Parrot Jungle. For the life of the Loan (20 years) interest payments shall be made quarterly starting 90 days from the date of the first draw by Parrot Jungle. (b) Principal Payments: Principal payments under the Loan shall be payable annually. The first payment of principal shall be due and payable One Thousand Ninety -Five (1,095) days from the date of the first Loan draw by Parrot Jungle (i.e., the beginning of the 4' year of the loan) or thirty (30) days before the County's first principal payment to HUD is due, whichever is later, and shall be payable in accordance with the schedule attached hereto as Exhibit " C" . (c) Parrot Jungle Loan Expenses: Parrot Jungle shall be required to pay the following expenses, costs and interest reserves out of the I — �6 0 L7 Loan proceeds at the time of the first draw of Ten Million Dollars ($10,000,000.00): (i) The actual and reasonable HUD costs relating to this Project. An estimate of those costs is attached hereto and made a part hereof as Exhibit "D"; and (ii) The estimated amount necessary to fund a debt service reserve for the Loan during the construction period. The debt service reserve shall be determined by taking into account the HUD interest rate plus the .5% interest premium to be charged by the County, in relation to the anticipated draw schedule. Interest earned on funds that are held by the County but are not drawn by Parrot Jungle shall accrue to Parrot Jungle's benefit, and shall include any and all investment earnings on the funds, collectively referred to herein as "Debt Service Reserve." The County shall, subject to any limitations set by HUD, invest the Debt Service Reserve in the highest yielding insured account available used by the County. The Debt Service Reserve will be used to make the interest payments due on the Loan for the first two years of the Loan term and the balance of the Debt Service Reserve left upon the completion of construction of the Project by Parrot Jungle shall be disbursed to Parrot Jungle; and (iii) The remaining balance of the Loan after deducting (i) & (ii) above shall be disbursed to Parrot Jungle pursuant to a draw schedule to be submitted by Parrot Jungle. The parties hereto have agreed that the first draw shall be in an amount of Ten .Million Dollars ($10,000.000.00). The first draw shall be paid within thirty (30) days of the signing of this Agreement or within ten (10) business days of disbursement of the funds by HUD to the County, whichever is later. The parties agree to cooperate with each other and utilize their good faith efforts to obtain interim funding from HUD and to process the HUD Loan to its completion as expeditiously as reasonably possible. In the event that funding under this Loan has not occurred by March 31, 2000, Parrot Jungle shall have the right o�ier-e seable exercisable by May 15, 2000, at its option, to terminate this Agreement by written notice to the County and City. The, Debt Service Reserve shall be held by the County in accordance with this Agreement; and 4 Its � (5) Other than as set forth in 1.1. (c) above and 1. 1.(6) below, the parties hereto have -.agreed that each of the parties hereto shall bear its own costs and expenses, including accounting, legal and consulting fees, in connection with the negotiation and preparation of this Agreement. The County shall not be required to reimburse any such costs or expenses of Parrot Jungle. The County shall bear its own costs and expenses, including accounting, legal and consulting fees, in connection with the negotiation, preparation and administration of this Agreement, the Ordinance, and the Section 108 Loan application. (6) At the time of its first draw of Ten Million Dollars ($10,000,000.00), Parrot Jungle shall also pay the costs of recording any and all documents granting Miami -Dade County a security interest in the project including the personal property. Parrot Jungle shall bear the costs of recording any and all leasehold mortgages, UCC -1 financing statements, and other collateral security instruments. 1.2. Attached hereto as "Exhibit E" is a form of Section 108 Loan application which embodies substantially the agreement of the parties (as amended by the amended pro -forma financial statements supplied to the County) with respect to the Section 108 Loan, which has been approved by the Board after hearings as required by the County's citizen participation plan. The parties acknowledge that this application may have to be amended or supplemented and the parties hereto agree to cooperate with each other and with HUD to produce a Section 108 Loan application, a HUD Loan and the Loan, which are mutually acceptable to all parties. 1.3. It is understood and agreed that Parrot Jungle is not and shall not be a party to the Section 108 Loan application. The foregoing sentence does not relieve Parrot Jungle of its job creation and/or retention obligations or its payment or financial assurance obligations as set forth in this Agreement, which obligations of Parrot Jungle are for the benefit of the County and HUD. Parrot Jungle's performance hereunder is subject to the performance of the County, the City and its various agencies of their obligations under the Lease Agreement and this Development Agreement. 1.4. The Loan from the County to Parrot Jungle shall be evidenced by a Promissory Note and shall be secured by a subordinated Leasehold Mortgage, as more fully set forth in Section 2 below. 1.5. The County agrees that it shall act, upon request of Parrot Jungle, with reasonable diligence, to inquiries and reasonable requests for clarifications, furnishing. of documents and instruments, i.e., estoppel letters, etc., necessary to accommodate the first mortgage holder and various Corporate Sponsors of Parrot Jungle, subject to the provisions of Section 5 below. Further, it is understood that any default or breach by the County under its agreements with HUD shall have no effect on this Agreement or the rights and obligations of the parties hereunder, except to the 5 0- %b4 extent, if any, of the impact of such default or breach with respect to the City's obligations under the JPA. 1.6. The County shall, to the extent required by HUD, pledge to HUD the following: (a) payments by Parrot Jungle to the County as required in this Agreement, (b) the Debt Service Reserve, (c) the County's interest in the Performance Bond, (d) the County's rights under the Leasehold Mortgage, (e) the County's rights under the UCC Lien (defined below), (f) other security, if any, as may be required by HUD pursuant to the HCDA and the CDBG Regulations and as may be legally available for such purpose and approved by the Board, (g) program income as defined in Section 570.500(a) of the CDBG Regulations, (h) the County's future CDBG entitlement funds and other revenues as required by applicable provisions of the HCDA and CDBG Regulations, and (i) all proceeds from any of the foregoing. 1.7. Parrot Jungle shall make timely payment of all principal and interest and other sums becoming due pursuant to the Loan Documents and this Agreement, when and as the same become due, and in accordance with the terms of this Agreement,'subject to applicable grace, cure or notice periods, so as to avoid the occurrence of any default (or any occurrence or event or circumstance which, with notice or lapse of time would become a default) or would result in or permit the exercise of remedies or the imposition or accrual of any default interest, penalties, fees or other charges as a result of such default. All of the foregoing default provisions within this paragraph shall be subject to the applicable grace, notice provisions and cure periods set forth in the Loan Documents, this Agreement, and the Lease. 1.8. Acceleration: If Parrot Jungle shall fail to make any payment as set forth in the attached Exhibit C, or in the event of a material default in the performance of any of the covenants contained herein or in the Loan Documents, then after notice of default and after the expiration of any applicable grace or cure period, the whole outstanding principal sum of the Loan with interest accrued thereon shall, at the option of the County, become due and payable without further notice or demand, time being of the essence. Said principal sum shall bear interest from such time until paid, at the Post Default Rate. No omission on the part of the County to exercise such option when entitled to do so shall be considered as a waiver of such right. It is agreed between the parties hereto that wherever a notice provision and/or cure period in one document conflicts with a notice provision and/or cure period in another document, then the most liberal provision applied to Parrot Jungle shall govern. With regard to monetary payments under the Loan Documents the parties agree that Parrot Jungle shall have a grace period of 30 days after notice to cure any monetary defaults. Parrot Jungle shall be entitled to 90 days notice and opportunity to cure any non -monetary defaults. All notices with regard to defaults shall be specific as to the nature of the default and/or the specific monetary amount due and owing. Failure to exercise this option shall not constitute a waiver of the right to exercise the same in the event of any subsequent default. 1.9. Defeasance and/or Prepayment of Loan. At any time after closing and funding of the entire Loan or a portion of the Loan, Parrot Jungle shall have the right, at its option, to pay an amount to the County sufficient, to allow the County to defease all of the Section 108 Notes then 6 v _ 264 outstanding related to this Agreement, in accordance with the Master Fiscal Agency Agreement and any Supplemental Fiscal Agency Agreement governing issues and servicing of said Section 108 Notes vis-a-vis the capital markets and the holders of said Section 108 Notes. Upon such prepayment this Agreement shall terminate, and the County shall furnish to Parrot Jungle, simultaneously with the receipt of the payment, a recordable full satisfaction of the Mortgage and all Loan Documents, together with the original executed Promissory Note marked paid. Thereafter the County and Parrot Jungle shall have no further obligation hereunder to each other. SECTION 2. SECURITY FOR PARROT JUNGLE' S OBLIGATIONS. 2.1. As security for its obligations under this Agreement, Parrot Jungle shall provide the following collateral satisfactory in form and substance to the City and to the County: (1) A Subordinated Leasehold Mortgage on its leasehold interest under the Lease (the "Leasehold Mortgage"). Subject to reasonable review and approval by the County, and subject to such terms and conditions as are reasonably acceptable to the County, and further subject to the provisions of Section 5 below, the County and City agree that they shall execute the necessary documentation to subordinate the Loan to ,Parrot Jungle's institutional financing (which shall constitute a first leasehold mortgage) and shall execute and furnish forthwith as required to the institutions financing the first leasehold mortgage, attornment agreements required by the institution, subordination agreements, estoppel documents, opinions of counsel and other similar documents that the institutions may require. (2) A second perfected security lien (the "UCC Lien") on all Parrot Jungle's personal property, fixtures, equipment and leasehold improvements. (3) A Payment and Performance Bond in the amount of the hard costs of the project. (4) A Personal Guarantee from the owners of Parrot Jungle And Gardens of Watson Island, Inc., subject to potential revision by and at the sole discretion of the County. The foregoing documents are included within the definition of the "Loan Documents" as set forth in Section 1.1(a) above. SECTION 3. USE OF LOAN PROCEEDS. 00-A404 3. 1. Application of Loan Proceeds: Parrot Jungle shall utilize the Loan proceeds pursuant to the amended pro -forma sources and use statement, attached hereto as Exhibit "A", which was provided to the County and City, which use shall include but not be limited to the support of economic development activities (see 24 CFR 570.203(b)) involving construction, to achieve the national objective, as set forth under CDBG regulations applicable to the HUD Section 108 Loan Guarantee Program, which are of benefit to persons and families of low or moderate income by creating and/or retaining the HUD 108 Jobs, of which at least 80% percent will be held by or made available to persons of low or moderate income. However, Parrot Jungle's failure to meet this 80% requirement shall not constitute a default under this agreement, so long as at least 51 % of the jobs created andand/or retained are held by or made available to persons of low or moderate income. Specific applications of Loan proceeds may include, but will not be limited to, construction, working capital including payroll, training, equipment purchase, inventory financing, operating expenses and other systems. Parrot Jungle agrees to furnish to the County reasonable evidence of its compliance with this Section 3.1. SECTION 4. JOB CREATION/RETENTION ACTIVITIES. 4.1. Creation/Retention of Jobs. Parrot Jungle shall relocate its facility to Watson Island, Miami, Florida. Parrot Jungle will create and/or retain 240 full time equivalent permanent jobs during its first full year of operation. By the end of its third year of operation, Parrot Jungle anticipates that it shall have created and/or retained 326 full time equivalent permanent jobs. By the end of the tenth year of operation, Parrot Jungle anticipates that it shall have created and/or retained 603 full time equivalent permanent jobs. At least 80% of these jobs. shall be held by or made available to persons of low income or moderate income. However, Parrot Jungle's failure to meet this 80% requirement shall not constitute a default under this agreement, so long as at least 51 % of the jobs created and orand/or retained are held by or made available to persons of low or moderate income. 4.2. Permanent Job. For the purposes of the principal national objective of the CDBG Regulations and this Agreement, "permanent job" means any full time and/or full-time equivalent permanent job position (as that term is defined by U.S. HUD), located in the County, reasonably expected to exist for a period of more than one (1) year from the later of the date of this Agreement or the date such position is created/retained and first becomes available to a prospective employee (as distinguished from a job position of a known, short-term duration, such as a construction job, expected to exist only for one year or less), and "employee" means any person employed by Parrot Jungle, its affiliates or subsidiaries (in relation to the project or to any enterprise related 'to the project, whether on-site or off-site). 00- 264 4. 3. Low- and Moderate -Income Jobs. It is acknowledged and agreed that at least 80 percent of the jobs to be created and/or retained during the first year of the term of the Loan after construction is completed and the Parrot Jungle has opened to the public for business, will be held by or made available to "low- or moderate -income persons", within the meaning of the CDBG Regulations. However, Parrot Jungle's failure to meet this 80% requirement shall not constitute a default under this agreement, so long as at least 51% of the jobs created and erand/or retained are held by or made available to persons of low or moderate income. For the purposes of this Agreement, if the level of income considered to be "low" or "moderate" increases after the date hereof, the classification of persons of low or moderate income shall be determined by reference to such increased level as of the date of hire. 4.4. Actions to Ensure First Consideration. Parrot Jungle agrees to take or cause to be taken appropriate actions to ensure that persons of low or moderate income (including but not limited to participants in State of Florida WAGES program and residents of Miami -Dade County CDBG Eligible Areas) receive "first consideration" (within the meaning of CDBG Regulations) for filling the low- and moderate -income j obs created and/or retained, and will seriously consider or cause to be considered a sufficient number of j ob applicants of low or moderate income to meet the intent of the CDBG Regulations. Parrot Jungle further agrees to post, and require all of its major contractors and their major subcontractors to post, notice of job opportunities resulting from the construction and operation of the Project with Miami -Dade County's job clearinghouse. Parrot Jungle will maintain or cause to be maintained in the County adequate documentation available to show the number and type of jobs created and/or retained, the hiring process used, including the process used for affording first consideration to persons of low or moderate income, the persons of low or moderate income interviewed and considered for such jobs, and which of those persons were hired; and will allow access to such documentation for review and inspection at the place maintained by or on behalf of Parrot Jungle at reasonable times and on reasonable notice during normal business hours by appropriate personnel or representatives of HUD and/or the County. Parrot Jungle will use its best efforts toward providing training and to ensure that employment opportunities will be given to persons of low or moderate income residing in the County. Parrot Jungle will use its best efforts to award contracts for work in connection with the facility to eligible business concerns which are located in or owned in substantial part by persons residing in the County, in each case as and to the extent required by HUD pursuant to Section 3 of the Housing and Urban Development Act of 1968, as amended, 12 U.S.C. 1701u. The County shall have the right, but not the obligation, to retain the services of an Independent Private Sector Inspector General (hereinafter" IP SIG" ), whenever the County deems it appropriate to do so. Upon at least fourteen (14) days advance written notice from the County, Parrot Jungle shall make available to the IPSIG retained by the County, all requested records and E 0U_ z64 documentation pertaining to this Agreement for inspection and reproduction. The County shall be responsible for the payment of these IPSIG services. The terms of this provision apply to Parrot Jungle, its officers, agents, employees, subcontractors and assignees. Nothing contained in this provision shall impair any independent right of the County to conduct an audit or investigate the operations, activities, and performance of Parrot Jungle in connection with this Agreement. The terms of this paragraph shall not impose any liability on the County by Parrot Jungle or any third party. 4.5. Periodic Reports. Parrot Jungle shall provide to the County reports with respect to the facility, regarding all activities affecting the implementation of the Loan, in accordance with this Agreement, including a narrative summary of progress on compliance with its obligations related to the Loan, on report forms approved by the County, on a quarterly basis, until Defeasance or payment in full of the Loan. 4.6. Job Training. The County may cooperate with Parrot Jungle in Parrot Jungle's efforts to obtain job or employee training assistance, including without limitation training programs, grants and tax credits, as may be available from federal, state and local authorities. 4.7. Failure to Create/Retain Jobs in Years 1 through 11. During years one (1) through eleven (11) of the Loan, should Parrot Jungle fail to meet the criteria set forth herein to create and/or retain the jobs required herein by certain specific dates, then upon ninety (90) days written notice to Parrot Jungle that it has failed to hire the individuals or to create or retain the jobs necessary to meet the criteria herein for filling, creating or retaining the jobs required to be filled, retained or created pursuant to this Agreement, and upon Parrot Jungle's failure to cure this default within ninety (90) days after such written notice, Parrot Jungle shall pay a principal reduction under the Loan by an amount wherein the numerator is the principal balance of the Loan at the time of the default (after the running of the cure period) and the denominator is 603, times the shortfall in the number of jobs required at the time of default. Such prepayment shall be without penalty and shall reduce the principal balance of the Loan. Notwithstanding the foregoing, Parrot Jungle shall not be required to pay more than $250,000.00 in any ninety (90) day period. Subsequent to any such ninety (90) day period after Parrot, Jungle makes such a principal reduction payment, any subsequent calculation shall be performed by adding the number of jobs for which Parrot Jungle has previously paid a principal reduction, to the number of jobs required hereunder, to arrive at a new denominator for the purpose of the next period. Notwithstanding the foregoing, Parrot Jungle shall never be required to pay twice for a shortfall in jobs previously paid for. The parties hereto acknowledge that employment maybe seasonal. Therefore in order to determine if the job criteria herein is met by Parrot Jungle, the County will allow for the annual average employment during a calendar year to be the determining factor in meeting the required criteria (subject to force majeure, acts of God, strikes, and like items). 4.8. Failure to Create/Retain Jobs by Year 12. If at the end of year twelve (12) of the Loan Parrot Jungle has not created and/or retained at least 603 jobs and does not have at least fifty - 10 00- 264 one percent (51%) of 603 jobs held by or have been made available to persons of low or moderate income as provided in this Agreement then Parrot Jungle shall prepay to the County an amount of the Loan as set forth hereinafter. Such prepayment shall be without penalty and shall reduce the principal balance of the Loan and shall be made within ninety (90) days of receipt of written notice that Parrot Jungle has failed to meet the criteria set forth herein. The parties hereto acknowledge that employment maybe seasonal. Therefore in order to determine if the job criteria herein is met by Parrot Jungle, the County will allow for the annual average employment during a calendar year to be the determining factor in meeting the required criteria (subject to force majeure, acts of God, strikes, and like items). The payment shall be determined as follows: (1) The amount determined by USHUD to bring the project into compliance with federal regulations and guidelines related to the maximum amount of assistance per job created and/or retained and the number of jobs held by or made available to persons of low or moderate income. (2) Notwithstanding the foregoing, if Parrot Jungle has reduced the principal balance of the Loan by making payments in accordance with Section 4.7 above, then the amount of the payment set forth in subsection (1) above shall be reduced by the amount for which Parrot Jungle has previously paid a prepayment as set forth in Section 4.7 above. 4.9. No Duplicate Payment. Notwithstanding the foregoing provisions of Sections 4.7 and 4.8 hereof or any other sections of this Agreement, Parrot Jungle shall never be required to reduce the principal balance of the Loan by paying twice with respect to any shortfall in creation and/or retention of jobs, including a low- or moderate -income job or any other type of job. 4.10. Payments made pursuant to, and within the times set forth in Sections 4.7 and 4.8 hereof, shall serve to cure any default related to the failure to meet the job creation/retention criteria set forth therein and in Sections 4.1. and 4.3. SECTION 5. PROVISIONS WITH REGARD TO THE CITY OF MIAMI. 5.1. Pursuant to the terms of the JPA, and subject to the conditions set forth therein, the City has agreed to substitute itself as a guarantor for eighty per cent (80%) of the Loan (the "Guarantee Replacement"). Accordingly, and in anticipation of the City assuming the position of the County under the Loan, the parties hereto agree as follows: (1) All Loan Documents, and all amendments to the Loan Documents, including such documents as may be required to evidence or effectuate the II 00- L64 subordination of the Loan to Parrot Jungle's institutional financing, shall be subject to the approval of the City in form and substance. (2) A material breach by the County of any of the provisions of this section shall relieve the City of its obligations under the JPA. (3) Parrot Jungle agrees to execute such other documents as may be reasonably required by the City in connection with the Guarantee Replacement and to pay reasonable costs and expenses charged by HUD and/or the City in connection therewith. Parrot Jungle also agrees to be responsible for recording costs of any new note and mortgage if required, but the Parties hereto agree to use a substitute Note and assignment of the existing mortgage and other Loan Documents so as to avoid any additional recording costs and documentary stamps, intangible or other taxes, if and to the greatest extent possible. (4) Notwithstanding the foregoing, the parties hereto agree that, in lieu of the Guarantee Replacement, the City shall have the option to apply for a new Section 108 Loan from HUD, in an amount to be guaranteed by the City under the JPA, whereupon all obligations of the City and the County under the JPA shall be deemed satisfied. In such event, the Parrot Jungle shall execute such documents as may be reasonably required by the City and/or HUD to evidence and secure Parrot Jungle's indebtedness to the City in the amount of the new Loan, and to pay all costs in connection therewith, provided that the terms of such loan documents shall be not less favorable than the terms of this Loan. 5.2 The City of Miami will use its reasonable good faith efforts not to reduce its CDBG Section 108 Loan capacity to allow it to substitute itself as a guarantor for eighty percent of the Section 108 loan as set forth in the JPA. SECTION 6. REPRESENTATIONS. 6.1. County. The County represents to Parrot Jungle and the City that it has duly, validly and lawfully authorized and entered into this Agreement and that this Agreement constitutes the valid, binding and lawful obligation of the County. 6.2. Parrot Jungle. Parrot Jungle represents to the County and City that it has duly, validly and lawfully entered into this Agreement and that this Agreement constitutes the valid, binding and lawful obligation of Parrot Jungle. 12 00" 264 0 .0 6.3. City. The City represents to Parrot Jungle and the County that it has duly, validly and lawfully authorized and entered into this Agreement and that this Agreement constitutes the valid, binding and lawful obligation of the City. SECTION 7. GENERAL REQUIREMENTS. 7.1. Parrot Jungle shall comply in all material respects, in the acquisition, development, construction and operation of the facility, with all applicable federal, state and local laws and regulations, to the extent applicable to this type of project, which is not a housing project but is a commercial project for profit. 7.2 The parties acknowledge and agree that the facility is not designed to generate program income as defined in 24 CFR 570.500(a).7.3Parrot Jungle shall either: (1) Meet one of the national objectives in 24 CFR 570.208, as and to the extent required by.applicable HUD regulations; or (2) Not meet one of the national objectives, as aforesaid, in which event Parrot Jungle, subject to the applicable grace periods and notice, shall pay, repay, redeem or defease the remaining principal balance and accrued interest due and unpaid under the documents and agreements evidencing the Loan. SECTION 8. REMEDIES; TERMINATION; FURTHER RIGHTS. 8.1 General. (1) Subject to any mutually agreed upon extensions of time, nonperformance or delay in the performance by any party of any of its obligations under this Agreement, which is continuing after notice in writing and the expiration of any grace period provided for herein, shall constitute a default entitling the other party to exercise its rights and remedies for such default. (2) Any failure or delay by either party in asserting any of its rights and remedies as to any non-performance or delay in performance by the other party shall not operate as a waiver of any such non-performance or delay in performance or of any rights or remedies. (3) Except as expressly provided otherwise in this Agreement, each right or remedy provided herein is cumulative to other rights or remedies, and the exercise by any party to this Agreement of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, 13 0'_ Z�`� of any other rights or remedies for the same or any other nonperformance or delay in performance by any other party to this Agreement. (4) Each party covenants and agrees that any and all legal actions arising out of or connected with this Agreement shall be instituted in the Circuit Court of the Eleventh Judicial Circuit, in and for Miami -Dade County, Florida, or in the United States District Court for the Southern District of Florida, as the exclusive forums and venues for any such action, and each party further covenants and agrees that it will not institute any action in any other forum or venue and hereby consents to immediate dismissal or transfer of any such action instituted in any other forum or venue. In the event of any dispute, claim or legal action of any kind or nature, each party shall be responsible for and shall bear its own attorney's fees and costs. (5) This Agreement shall be construed and interpreted as nearly as practicable in accordance with the expressed intent of the parties, so as to uphold the validity of all the provisions hereof. Nevertheless, the provisions of this Agreement are severable, and if any provision is determined to be invalid, unlawful or contrary to public policy, such provision shall be disregarded and the same shall have no effect upon any other provisions hereof, which other provisions shall continue in full force and effect. (6) This Agreement is entered into within, and with reference to the laws of the State of Florida, and shall be governed, construed and applied in accordance with the laws of the State of Florida. (7) If the facility is sold or transferred by Parrot Jungle, Parrot Jungle shall not be released from its obligation hereunder unless the County consents, which consent shall not be unreasonably withheld or delayed. In the event of such consent, Parrot Jungle shall require the transferee to assume its obligations hereunder in writing. (8) In the event Parrot Jungle has defaulted in any material provision of .this Agreement, other than a monetary default for which remedies are set forth elsewhere in this Agreement, the County shall give written notice thereof to Parrot Jungle, specifying the nature of the non -monetary default and the basis on which to cure said default. Thereafter, if any such material default is not cured prior to expiration of the applicable cure period and the County files an action with a court of competent jurisdiction and that court determines that Parrot Jungle has materially defaulted pursuant to this Agreement and solely as a consequence of that default the County is required to prepay any part of the HUD Notes relating to this Project prior to the maturity date thereof, or 14 the County is required to refund any CDBG funds received which the County would otherwise have been entitled to retain, or any future CDBG funds shall be withheld which the County would have otherwise been entitled to receive, or the County is required to pay a fine or penalty to HUD, and all of the above are without any fault of the County and have not been caused by any action taker' by or not taken by the County, then Parrot Jungle shall pay to the County the amount of the Loan so required to be prepaid by the County, which amount may be equal to the CDBG funds so required to be refunded by the County or the present value of any future CDBG funds so withheld from the County, or the amount of such fine or penalty assessed plus any reasonable out-of-pocket costs for outside professional fees imposed or required by HUD. Notwithstanding the forgoing the County must attempt to mitigate any damages or payments or refunds of CDBG funds, or the withholding of any future CDBG funds, or any penalties plus out-of-pocket costs for outside professional fees imposed or required by HUD (all of the foregoing hereinafter being referred to as "Mitigatable Damages") due to a default by Parrot Jungle. The County must provide to Parrot Jungle, forthwith upon receipt, copies of all notices from HUD with regard to any of the above Mitigatable Damages, so as to allow Parrot Jungle to participate in an effort to mitigate the damages. (9) The County shall have no obligation to fund the Loan to Parrot Jungle until such time as Parrot Jungle submits a construction budget to the County which contains a construction cost overrun contingency line item in an amount sufficient to cover possible construction cost overruns. The sufficiency of the amount allocated shall be determined by the County in its reasonable discretion. SECTION 9. AVIARY PAYMENTS. 9.1. Metro Zoo Obligation. Parrot Jungle has agreed to pay to Miami -Dade County for the use of the Aviary at the Metro Zoo on S.W. 152 nd Street only, $150,000.00 per year beginning in year five of the Loan and continuing through year twelve. In years thirteen through twenty Parrot Jungle shall pay $100,000.00 per year to the Aviary. Parrot Jungle's obligation to make such payments to the Aviary (the "Metro Zoo Obligation") shall not be affected by any repayment or transfer of the Loan. The Metro Zoo Obligation shall be used solely for the Aviary of the Metro Zoo. 9.2. Failure to Make AviaKy Payment. If a default occurs in the payment of any Aviary payments as set forth above, then interest shall be charged on the remaining balance of payments due to the Aviary, at the same rate of interest as is charged on the Loan to Parrot Jungle. Upon default of such a payment and after notice and expiration of the applicable cure period, if the County 15 00— X64 at its option wishes to accelerate the total amount remaining to be paid to the Aviary, it shall have the right to do so and thereafter the entire amount and all accrued interest from the date of the default shall be due. Failure to exercise this option shall not constitute a waiver of the right to exercise the same in the event of any subsequent default. SECTION 10. MISCELLANEOUS PROVISIONS. 10.1. Recitals. The recitals set forth above shall be incorporated into the terms of this Agreement. 10.2. Notices: Demands and Communications Between the Parties. Notices, demands and communications between the parties shall be given by hand -delivery with a signed receipt or by certified mail, return receipt requested, addressed as follows: Notices, demands and communications to the County: Miami -Dade County, Florida Office of the County Manager Stephen P. Clark Building 111 N.W. First Street, 29th Floor Miami, Florida 33128 Attention: Mayor of Miami -Dade County With copies to: Robert A. Ginsburg The County Attorney Miami -Dade County, Florida Stephen P. Clark Building 111 N. W. First Street, Suite 2810. Miami, Florida 33128 Notices, demands and communications to Parrot Jungle: Parrot Jungle and Gardens of Watson Island, Inc. 11000 S.W. 57 Avenue Miami, Florida 33156 Attention: Dr. Bern Levine With copies to: Krongold and Todd, P.A. 16 0U` X64 201 Alhambra Circle, 8th Floor Coral Gables, Florida 33134 Attention: M. Ronald Krongold and Randi Krongold Notices, demands and communications to the City of Miami: The City of Miami Office of the City Manager 444 SW 2nd Avenue. 10th Floor Miami. Florida 33130 With copies to: The City of Miami City Attorney 444 SW 2 n Avenue, 9d' Floor Miami, Florida 33130 The City of Miami Department of Real Estate and Economic Development 444 SW 2nd Avenue, .3 Floor Miami, Florida 33130 Notices given as provided above shall be deemed given and shall be effective when delivered to the addressee at the address set forth above, or when received via certified mail. Either party may change its address to which notices, demands and communications shall be sent by giving written notice thereof to the other parry. 10.3. No Taxing Power. Nothing in this Agreement shall constitute or require, or be deemed to constitute or require, a pledge of the full faith and credit or taxing power of the County, the State of Florida or any of its political subdivisions, within the meaning of any constitutional or statutory limitation, and no person shall have any right, directly or indirectly, to compel the exercise of the ad valorem taxing power of the County, the State of Florida or any of its political subdivisions for any such payments. 10.4. Certain Definitions. The following terms used in this Agreement shall have the meanings given to them in or pursuant to the CDBG Regulations and related administrative requirements: "held by or made available to"; "create/retain" or "retain" jobs. 10.5. No Liability of Officials, Officers or Employees. No official, officer or employee of the County, the City or Parrot Jungle shall be personally liable for any non-performance or delay in 17 00- 264 performance by the County, the City or Parrot Jungle, respectively, or for any amount which may become due under any provisions of this Agreement, unless otherwise expressly set forth herein. 10.6. Approvals. Approvals required of the County, the City, or Parrot Jungle shall not be unreasonably withheld or delayed. Unless otherwise required by this Agreement and except to the extent in conflict with general law; all approvals or disapprovals shall be provided within thirty (30) days of submission of any documents requiring approval. If no approval or disapproval is given within the time required by this Section, and no extension has been mutually agreed in writing, the approval shall be deemed given and conclusively established. SECTION 11 ENTIRE AGREEMENT, WAIVERS AND AMENDMENTS. 11.1. This Agreement may be executed in two or more counterparts, each of which is considered and shall be deemed to be an original. 11.2. This Agreement, along with the Loan Documents, constitutes the entire understanding and agreement of the parties as to the subject matter hereof, and supersedes all negotiations or previous agreements between the parties with respect to all or any part of the subject matter. Section and paragraph headings included in this Agreement are for convenience only and shall have no effect upon the meaning or construction of this Agreement. 11.3. No waiver or consent to any departure from any term, condition or provision of this Agreement shall be effective or binding upon any party hereto unless such waiver or consent is in writing, signed by an authorized officer of the party giving the same, and delivered to the other party. 11.4. No amendment or modification of this Agreement shall be effective or binding upon any party hereto unless such amendment or modification is in writing, signed by an authorized officer of the party claimed to be bound and delivered to the other party. 11.5. Prohibition Against Contingent Fees. Parrot Jungle has employed and retained bona fide employees working for Parrot Jungle and attorneys and consultants, to solicit or secure this Agreement. Parrot Jungle warrants that it has not paid or agreed to pay any person, company, corporation, individual or firm, other than a bona fide employee working for Parrot Jungle, any fee, commission, percentage, gift, or any other consideration, contingent upon or resulting from the award or making of this Agreement. 11.6. Independent Developer. In performing this Agreement, planning, developing, equipping and operating the projects referred to herein, or carrying out any of the activities to be carried out by Parrot Jungle, Parrot Jungle will be acting independently, and not as a joint venturer, partner, associate, employee, agent or representative of the County. Parrot Jungle and/or its agents, consultants, contractors and/or employees, for any such project, as the case maybe, shall be solely responsible for the means, methods, techniques, sequences and procedures utilized. 18 11.7. Non -Discrimination. Parrot Jungle covenants and agrees that it will not discriminate against or segregate, any person, or group of persons, on account of race, color, religion or creed, sex, or national origin in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the facility, and Parrot Jungle shall not establish or consent to any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of any management or operating company or lessees or sub -lessees, tenants or subtenants of the facility. 11.8. Successors and Assigns. This Agreement is binding upon and inures to the benefit of the County and Parrot Jungle, and their respective successors and assigns. No assignment or other transfer by Parrot Jungle may be made, suffered, or created by Parrot Jungle without the express written consent and approval of the Board of County Commissioners of Miami -Dade County and the City Commission of the City of Miami. Parrot Jungle shall give or cause to be given to Miami -Dade County written notice of any assignment or transfer of which Parrot Jungle or its officers shall have knowledge, not less than sixty (60) days prior to any such proposed assignment or transfer. The required consent or approval of Miami -Dade County and the City of Miami shall not be unreasonably withheld. Any assignment or transfer made in violation of the terms of this paragraph shall be null and void and of no force and effect. 11.9. Force Maieure. Neither party shall be responsible for delays in performing any of their respective obligations hereunder when said delay or failure is due to acts of providence, military authority, insurrection, riots, civil commotions, strikes, shortages or delays in obtaining materials during the construction period, intentional and malicious acts of third parties, -labor disputes, enemies of the government, explosions, flood, windstorm, fire, failure of utility company to provide power source or service, or any other cause beyond the reasonable control of such party. 11.10. Term of Agreement. The term of this Agreement shall commence as of the date first written above and shall expire upon completion of all payments of the Loan by the County and/or the City and all payments: due from Parrot Jungle, unless sooner terminated as provided herein. IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement, and caused their respective seals to be hereunto affixed, as of the date first written above. MIAMI-DADE COUNTY Approved as to form and substance: By: Print Name: Title: IK County Manager 00- 264 Approved as to form and substance: Print Name: Title: ATTEST: By: Print Name: Title: [CORPORATE SEAL] AttnrlhmPntc • CITY OF MIAMI City Manager PARROT JUNGLE AND GARDENS OF WATSON ISLAND, INC. By: Print Name: Title: Exhibit A -- Sources and Uses of Funds Exhibit B -- Joint Participation Agreement Exhibit C -- Principal Repayment Schedule of the Loan Exhibit D -- Estimate of HUD Costs Exhibit E -- Section 108 Loan Application Exhibit F -- Job Creation/Retention Requirements Exhibit G — Memorandum of Lease 20 0 CITY OF MIAMI, FLORIDA 1* .13 INTER -OFFICE MEMORANDUM TO: The Honorable Mayor and DATE MAR 1 3 2000 FILE: Members of the City Commission SUBJECT: Parrot Jungle Development Agreement; Modification to Lease Agreement; Sublease FROM: ( REFERENCES: Consent Donald H. Warshaw For City Commission City Manager ENCLOSURES: Meeting of 3/23/00 RECOMMENDATION It is respectfully recommended that the City Commission adopt the attached Resolution authorizing the City Manager to execute (i) a Development Agreement with Miami -Dade County and Parrot Jungle and Gardens of Watson Island, Inc., establishing the terms and conditions of a $25 million U.S. HUD Section 108 loan guarantee from Miami -Dade County to Parrot Jungle, (ii) a Modification to the Lease and Development Agreement dated September 2°d, 1997, between Parrot Jungle and the City, incorporating certain provisions relating to the financing of the project by an institutional lender, and (iii) other documents as may be required to accomplish the purpose of the foregoing documents; and, further consenting to a proposed sublease of the property by Parrot Jungle to a limited liability company to be formed for this purpose for income tax and estate planning considerations, subject to conditions, including the condition that the ownership and control of the new entity be identical with that of Parrot Jungle and Gardens of Watson Island, Inc. BACKGROUND Miami -Dade County applied for a loan guarantee pursuant to the U.S. HUD Section 108 loan guarantee program to facilitate the development of the Parrot Jungle and Gardens of Watson Island project, pending certain conditions to be met by the City. On September 9'', 1998, the City and County entered into a Joint Participation Agreement in which the City agreed, upon satisfaction of the conditions set forth therein, to replace the County as the guarantor of 80% of said HUD loan. The County subsequently submitted the application, which received HUD approval on April 26th, 1999, in the amount of $25 million. Since April 1999, representatives from the City of Miami Department of Real Estate and Economic Development, City Attorney's Office, Miami -Dade County Office of Community and Economic Development, and Parrot Jungle and Gardens of Watson 00—a The Honorable Mayor and Members of the City Commission Page Two Island, Inc. have been negotiating a Development Agreement that defines the terms and conditions, acceptable to U.S. HUD, upon which the County loan shall be made to Parrot Jungle. The Development Agreement defines the loan terms, stipulates the collateral to secure Parrot Jungle's obligations, sets forth the use of the loan proceeds, specifies the job creation/retention activities required of Parrot Jungle, and establishes other provisions required by Miami -Dade County. The Development Agreement also requires the City to use its reasonable efforts not to reduce its CDBG loan capacity in order 'to,, enable it to replace the County with respect to 80% of the Loan. It further grants the City the option of applying for its own Section 108 loan instead of assuming the County's position with respect to the existing loan. Specifically, as it applies to the City, the Development Agreement provides that: • All loan documents shall be subject to the approval of the City. • A breach by the County of its obligations shall relieve the City of its obligations. • Parrot Jungle agrees to pay reasonable costs -incurred by the City in connection with the guarantee replacement. • The City shall have the option to apply for �a new Section 108 loan from HUD, in lieu of the guarantee replacement. In such event, Parrot Jungle shall be required to secure the indebtedness in the amount of a new loan and to pay all costs in connection therewith. • The City will use its reasonable good faith efforts not to reduce its CDBG Section 108 loan capacity to allow it to substitute itself as a guarantee for 80% of the loan, as set forth in the Joint Participation Agreement. The City and Parrot Jungle have also negotiated the provisions of a Modification to the Lease and Development Agreement. The Modification to the Lease- and Development Agreement incorporates the lender's requirements in connection with the private financing, including the City's agreement to enter into a new lease with the lender, for the remainder of the term and on the same terms and conditions as the lease between the City and Parrot Jungle and Gardens of Watson Island, Inc., in the event the City terminates the lease with Parrot Jungle. Further, the Modification requires Parrot Jungle to build the project in one phase, in light of the new financing arrangements that enables Parrot Jungle to accomplish the substantial development of the project in one phase. The Honorable Mayor and Members of the City Commission Page Three Dr. Bern Levine and Mary Levine, the principals of Parrot Jungle and Gardens of Watson Island, Inc., have requested the City consent to a sublease of the entire property to a limited liability company, to be formed for this purpose, and represent to the City that the sole reason and purpose for the proposed sublease are income tax and estate planning considerations, and that ownership and control of the new entity will be identical with that of Parrot Jungle and Gardens of Watson Island, Inc. The Lease grants the City full discretion to consent, or withhold its consent to any proposed transfer by Parrot Jungle and Gardens of Watson Island, Inc., including a sublease. The attached Resolution provides the following conditions upon which a consent to this sublease is hereby recommended: • Parrot Jungle is not released from any obligations under the Lease. • The ownership and control of Parrot Jungle and Gardens of Watson Island, Inc. and the proposed limited liability company, the sublessee, are identical. • Parrot Jungle, the proposed new entity, and the sublease agreement comply with all applicable provisions and requirements of Article 8 of the Lease. • Parrot Jungle and the sublessee provide to the City such documentation as the City may require to evidence full compliance with the conditions set forth. It is respectfully requested that the attached Resolution be adopted authorizing the execution of a Development Agreement, a Modification to the Lease and Development Agreement, and other such documents as may be required to accomplish these purposes. It is further recommended that the attached Resolution be adopted consenting to a proposed sublease of the property by Parrot Jungle and Gardens of Watson Island, Inc. to a limited liability company to be formed for this purpose, subject to all conditions stipulated therein. DHW/JFL E /AW 0 MODIFICATION TO LEASE AND DEVELOPMENT AGREEMENT THIS MODIFICATION TO LEASE AND DEVELOPMENT AGREEMENT (the "Modification") is made as of the day of , 2000, between the CITY OF MIAMI, a municipal corporation in the State of Florida, acting by and through the City Manager (the "City Manager"), and with the approval of the City Commission of Miami, having its offices at 3500 Pan American Drive, Miami, Florida 33133 ("Lessor" or "City") and PARROT JUNGLE AND GARDENS OF WATSON ISLAND, INC., a Florida corporation, f/k/a PARROT JUNGLE & GARDENS, INC., a Florida corporation, whose principal office is located at 11000 Southwest 57 Avenue, Miami, Florida 33156 ("Lessee"). RECITALS WHEREAS, Lessor and Lessee are parties to that certain Lease and Development Agreement, dated as September 2, 1997 (the "Lease"); and WHEREAS, Lessor and Lessee desire to modify the Lease as hereinafter set forth. NOW, THEREFORE, in consideration of the premises, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Lessor and Lessee, agree to be legally bound, and hereby agree as follows: 1. The above recitals are true and correct and are hereby incorporated and referenced as if fully set forth herein. Unless otherwise indicated, all capitalized terms used in this Modification shall have the respective meanings given them in the Lease. 2. The Lease is modified in the following respects:' (a) The definition of "Acceptable Operator" is hereby amended to state as follows: "Acceptable Operator" (except as provided under Section 6.1. (b)(xi) hereof) means an entity possessing the business experience, good reputation, financial resources and adequate personnel necessary for the proper performance of all of Lessee's obligations under this Lease in a manner consonant with the quality, reputation and economic viability of the Project, including (without limitation) the obligation of Rent theretofore payable by Lessee under this Lease and possessing a minimum of Five (5) years experience in the successful operation and management of a destination visitor attraction, which is approved by the City Commission, which approval shall not be unreasonably withheld or delayed. 0,0-- 264 (b) The definition of "Gross Revenue" is hereby amended to add the following at the end of the sentence: For purposes of this definition, the term Subtenant shall be deemed to include an "Acceptable Operator" as the term is defined in Section 6.1(b)(xi) hereof, operating the Project pursuant to an agreement authorized under this Lease. (c) Article VI is hereby amended as follows: (i) Nothing contained in 6. L(a) shall be deemed to prohibit a Leasehold Mortgagee (or its designee) from taking back a purchase money mortgage in connection with its sale of the Leasehold in the event it succeeds to the interest of the Lessee under this Lease. (ii) The following is hereby added to the end of Section 6.1.(b)(i): Provided, however, that Leasehold Mortgagee's consent may be given or withheld in its sole discretion in the event of any proposed mutual termination or surrender of the Lease (except upon expiration of the Term). (iii) Section 6.1.(b)(iv) is hereby amended to change the first reference to the word "and" in the first sentence to the word "or". (iv) Section 6. L(b) is hereby amended to add the following subsection (x): (x) Should this Lease terminate by reason of any default by Lessee hereunder, the City Manager shall give notice thereof to Leasehold Mortgagee and the City Manager shall; upon written request by Leasehold Mortgagee to the City Manager received within sixty (60) days after such termination, execute and deliver a new lease of the Leased Property to Leasehold Mortgagee for the remainder of the term of this Lease with the same covenants, conditions and agreements (except for any which have been satisfied by or on behalf of Lessee prior to termination) as are contained herein. No such termination of this Lease shall effect a termination of this subparagraph (x) and the rights granted Leasehold Mortgagee herein. The City's execution and delivery of such new lease shall be made without representation or warranty of any kind or nature whatsoever, either express or implied, including without limitation, any representation or warranty regarding title to the Subject Property or any Improvements or the priority of such K 40 M new lease (except for representations or warranties regarding title with respect to actions taken by the City during the period commencing on the date of termination of this Lease and terminating on the date of such new lease). The City's delivery of any Improvements to Leasehold Mortgagee pursuant to such new lease shall be made without representation or warranty of any kind or nature whatsoever, either express or implied; and Leasehold Mortgagee shall take any Improvements "as -is" in their then current condition. Upon execution and delivery of such new lease, Leasehold Mortgagee shall be responsible for taking such action as may be necessary to remove Lessee named herein from the Project. The City agrees to cooperate with Leasehold Mortgagee in connection with the foregoing. The City's obligation to enter into such new lease of the Subject Property with the Leasehold Mortgagee shall be conditioned upon Leasehold Mortgagee having remedied and cured all monetary defaults hereunder and having remedied or having commenced and diligently prosecuting the cure of all non -monetary defaults of Lessee susceptible to cure by any party other than by Lessee. The Leasehold Mortgagee shall pay all expenses, including reasonable attorneys' fees of outside counsel, if any, incident to the preparation, execution and delivery of such new lease. If the City receives written requests in accordance with the provisions of this Section 6.1(b) from more than one Leasehold Mortgagee, the City shall deliver the new lease to the Leasehold Mortgagee who is, among those Leasehold Mortgagees requesting a new lease, the holder of the most senior Leasehold Mortgage, unless the holder of a more junior Leasehold Mortgage, not later than the date of execution of such new lease and as a condition thereof, (i) either (x) pays in full the sums secured by any or all Leasehold Mortgages which are prior in lien to the Leasehold Mortgage held by such Leasehold Mortgagee, or (y) agrees to reinstate the liens of any or all Leasehold Mortgages which are prior in lien to the Leasehold Mortgage held by such Leasehold Mortgagee with the same relative priority as existed prior to the termination of this Lease, and (ii) delivers to the City such documents as may reasonably be required by the City to evidence satisfaction of the aforementioned requirements. If any Leasehold Mortgagee having the right to a new lease pursuant to this Section 6.1(b)(x) shall elect to enter into a new lease but shall fail to do so or shall fail to take the action required above, the City shall so notify all other Leasehold Mortgagees (if any) and shall afford such other Leasehold Mortgagees a period of sixty (60) days from such notice within which to elect to obtain a new lease in accordance with the provisions of this Section. Except for any liens reinstated pursuant to this Section, any new lease entered into pursuant to this -0.- 964 3 go M Section shall be prior to any mortgage or other lien, charge or encumbrance on the fee of the Subject Property and shall have the same relative priority in time and in right as this Lease and shall have the benefit of all of the right, title, powers and privileges of Lessee hereunder in and to the Project. During the Term of the Lease, the City shall not grant any mortgage or other lien on its interest in the Subject Property unless such mortgage or lien, by its terms, is subordinate to this Lease, and any new lease entered into pursuant to this Section. (iv) Section 6.1.(b) is hereby amended to add the following subsection (xi): (xi) For purposes of this Article VI, the term "Acceptable Operator" means an entity possessing the business experience, good reputation, resources and adequate personnel necessary for the proper performance of all of Lessee's obligations under this Lease in a manner consonant with the quality, reputation and economic viability of the Project and possessing a minimum of Five (5) years experience in the successful operation and management of a destination visitor attraction, which is approved by the City Commission, which approval shall not be unreasonably withheld or delayed. (d) Article VIII is hereby amended as follows: (i) Section 8.3.(a) is hereby amended in its entirety to state as follows: (a) Any Transfer by a Leasehold Mortgagee to an Investor, which shall mean (i) an "Acceptable Operator," as the term is defined in Section 1.2 of this Lease, or (ii) any national bank organized under the laws of the United States or any commercial bank, or any savings and loan association, savings bank, trust company or insurance company organized under the laws of the United States or any state of the United States, or any pension, retirement or welfare trust or fund supervised by a governmental authority of any state or the United States or any such trust or fund administered by an entity which is supervised by a governmental authority, or any wall street investment firm (and shall include any agent, designee or nominee of an Investor which is wholly owned or controlled by such Investor) that has entered into an agreement, in form and substance acceptable to the City, with an Acceptable Operator as defined in Section 6.1, for the continued operation of the Project during the Term. 40 0 264 M (ii) Section 8.3.(b) is hereby amended to add the following at the end of the sentence after the words "Operator": "as defined in Section 6.1, under an agreement in form and substance acceptable to the City." (e) In the event the Lessee fails to exercise the option of extending the Lease for the Extension Term, as set forth in Section 3.1.(b) of the Lease, prior to the date which is 120 days prior to the date that Lessee's right to exercise this option terminates, the City shall so notify Leasehold Mortgagee and Leasehold Mortgagee shall have the same right as Lessee to exercise such option on behalf of Lessee and if the City Manager receives notice from a Leasehold Mortgagee that the Lessee is exercising the aforedescribed option, the Lease shall be deemed extended for the Extension Term with the same force and effect as if said option had been duly and timely exercised by Lessee. (f) Notwithstanding anything in the Lease to the contrary, it is agreed that the Leasehold Improvements described in the Lease as Phase I and Phase II Improvements shall not be constructed in phases but as one project, all of such improvements to be substantially completed, subject to Unavoidable Delay and Permitted Delay, not later than thirty (30) months from the Possession Date. Lessee hereby agrees to submit the Development Plans, the Construction Documents and a schedule describing the timetable for construction and completion of all Leasehold Improvements not later than sixty (60) days after the Possession Date. (g) Section 4.4 is hereby amended to clarify that the Payment and Performance Bond or Letter of Credit described therein shall be obtained by the Lessee or the General Contractor of the Project, and shall guaranty the payment and performance of the General Contractor's construction obligations. (h) The first sentence of Section 9.1(b) is hereby amended to state as follows: "The City grants unto Lessee, its successors and assigns, for the benefit of the Subject Property, the following:" (i) The first sentence of Section 9.1(b)(ii) is hereby amended to begin as follows: "the non-exclusive right and easement....." 0) It is further clarified that the easements granted by Lessor to Lessee as described in Section 9.1(b) and elsewhere in this Lease shall be situated on, in, upon, under, over and/or across the applicable portions of Watson Island owned by the Lessor (the legal description of which is set forth on Exhibit "A" attached hereto, less those portions previously conveyed by Lessor to the Florida Department of Transportation), and which are not a part of the Subject Property. 3. All references in the Lease to the "Lease" or the "Lease Agreement" shall hereafter refer to the Lease, as modified by this Modification. 5 4. So long as a Leasehold Mortgage is in existence, unless a Leasehold Mortgagee consents in writing thereto, fee title to the Subject Property and Lessee's interest in this Lease shall not merge, notwithstanding the acquisition of fee title and the Leasehold by Lessor or Lessee. 5. Lessor and Lessee represent to each other as follows: (a) That each has, and has exercised, the applicable Legal Requirements necessary to adopt, execute and deliver this Modification; and (b) This Modification has been duly executed and delivered by each and constitutes a valid and binding obligation of each enforceable in accordance with its terms, conditions and provisions; and (c) Lessor specifically represents that the execution and delivery of this Modification has been duly authorized and is in accordance with and pursuant to all Applicable Laws (including without limitation those of the Lessor) and the Constitution of the State of Florida. (d) Except as modified herein, all of the terms and provisions of the Lease are ratified and reaffirmed and shall remain in full force and effect. IN WITNESS WHEREOF, Lessor has caused this Modification to be executed in its name and on its behalf by the City Manager of the City of Miami, Florida, the City Clerk of the City of Miami, Florida, and the Lessee as signed as of the date herein first above written. LESSOR: ATTEST: CITY OF MIAMI, a municipal corporation of the State of Florida Name: Walter J. Foeman City Clerk By: - Name: Donald H. Warshaw City Manager APPROVED AS TO FORM AND CORRECTNESS: Alejandro Vilarello, City Attorney Cel 00— 264 0 so ATTEST: PARROT JUNGLE & GARDENS OF WATSON ISLAND, INC., a Florida corporation, f/k/a PARROT JUNGLE & GARDENS, INC., a Florida corporation By: Mary H. Levine Bernard M. Levine Secretary President Modification 7 .6 0 DRAFT 4-011 0 DEVELOPMENT AGREEMENT BETWEEN MIAMI-DADE COUNTY AND PARROT JUNGLE AND GARDENS OF WATSON ISLAND, INC. AND THE CITY OF MIAMI o- 264 INDEX Section 1. Parrot Jungle Loan .........................................................................................................I Section 2. Security for Parrot Jungle's Obligations.......................................................................6 Section 3. Use of Loan Proceeds...................................................................................................7 Section 4. Job Creation/Retention Activities.................................................................................7 Section 5. Provisions with Regard to the City of Miami.............................................................10 Section 6. Representations and Warranties..................................................................................1 l Section 7. General Requirements.................................................................................................1 l Section 8. Remedies; Termination; Further Rights.....................................................................12 Section9. Aviary Payments.........................................................................................................14 Section 10. Miscellaneous Provisions............................................................................................14 Section 11. Entire Agreement, Waivers and Amendments............................................................16 ' 0® 264