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HomeMy WebLinkAboutR-00-0926J-00-944 10/26/00 RESOLUTION NO. 00- 926 A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S), AUTHORIZING THE CITY MANAGER TO EXECUTE A LEASE AGREEMENT (THE "AGREEMENT"), IN SUBSTANTIALLY THE ATTACHED FORM, WITH OVERTOWN YOUTH CENTER, INC., A NON-PROFIT CORPORATION, FOR THE LEASING OF APPROXIMATELY 57,316 SQUARE FEET OF PROPERTY LOCATED AT APPROXIMATELY 1360 NORTHWEST 3RD AVENUE, MIAMI, FLORIDA, FOR THE PURPOSE OF PROVIDING PUBLIC EDUCATIONAL AND RECREATIONAL OPPORTUNITIES, AT NO COST, TO INNER CITY YOUTH AND THEIR FAMILIES, WITH AN INITIAL TERM OF FIVE YEARS; PROVIDING FOR AN ANNUAL RENT OF $1.00; WITH TERMS AND CONDITIONS AS MORE PARTICULARLY SET FORTH IN THE AGREEMENT. WHEREAS, Mr. Marty Margulies has offered to construct and approximately 17,000 square foot youth center and agrees to form a non-profit corporation for the construction and operation of the building as a youth center; and WHEREAS, Section 29-B of the City Charter allows for the conveyance or disposition of City -owned property in connection with the implementation of projects authorized under the Florida Community Redevelopment Act of 1969, without being subject to competitive bidding requirements and fair market value return to the City; ATTACHMENy CIS; CONTAINED O C T 2 6 2000 ate. 00- 906 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 hereby authorized" to execute a Lease Agreement (the "Agreement"), in substantially the attached form, with Overtown Youth Center, Inc., a non-profit corporation, for the leasing of approximately 57,316 square feet of property located at approximately 1360 Northwest 3rd Avenue, Miami, Florida, for the purpose of providing public educational and recreational opportunities, at no cost, to inner-city youth and their families, with an initial term of five years; providing for an annual rent of $1.00; with terms and conditions as more particularly set forth in said agreement. Section 3. This Resolution shall become effective immediately upon Its adoption and signature of the Mayoral ii 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. 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 2 of 3 40 ` 9 04 6 • PASSED AND ADOPTED this ATTEST: U 26th . day of October , 2000. JOE CAROLLO, MAYOR In accordance with Miami Code Sec. 2-3.6, since the NAa r did not indicate approval of this legislation by signing it in the designate plac rovided, said legislati^r W1becomes effective with the elapse of ten (10 da s th too Commi K7 regarding same, without the Mayoorrcisi g j WALTER J. FOEMAN CITY CLERK APPROVED -,&rS TO ORNEY mvlil . AND CORRECTNESS r/ Page 3 of 3®" 926 C LEASE FROM THE CITY OF MIAMI TO OVERTOWN YOUTH CENTER FOR THE USE OF A PORTION OF GIBSON PARK 0 00- 926 TABLE OF CONTENTS ARTICLE I EXHIBITS AND DEFINITIONS 1.1 Exhibits 1 1.2 Defined Terms; Singular, Plural and Gender 1 ARTICLE II DESCRIPTION AND TERM 2.1 The Demise 4 2.2 Term of Use and Conditions Precedent 5 2.3 Option to Extend 5 ARTICLE III PURPOSE OF USE AND OCCUPANCY 3.1 Authority to Lease 5 3.2 Purpose of Use and Occupancy of Subject Property 6 3.3 Operations 6 3.4 Annual Plan 6 3.5 Continuous Duty to Operate 7 3.6 Overtown Advisory Board 7 3.7 Police` Protection 8 ARTICLE IV POSSESSION OF THE SUBJECT PROPERTY AND CONSTURCITON OF LEASEHOLD IMPROVEMENTS 4.1 The Leasehold Improvements 8 4.2 Lessee's Financial Obligations 8 4.3 Delivery of Possession of Subject Property 8 4.4 Additional Security for Lessee's Construction Obligations 11 4.5 Time for Commencement and completion of construction of the 13 Leasehold Improvements ARTICLE V CONSIDERATION 5.1 Annual Fee 15 5.2 Security Deposit 15 5.3 Additional Payments 16 5.4 Promotion of Lessor 16 5.5 Community Services 16 9 0 00- 926 ARTICLE VI RRECORDS AND AUDITING 6.1 Records 6.2 Audit ARTICLE VII LICENSES; COMPLIANCE WITH LAWS 7.1 Licenses and Permits 7.2 Compliance with Laws ARTICLE VIII MAINTENANCE AND REPAIRS 8.1 Maintenance and Repair of Subject Property 8.2 Preventative Maintenance and Services ARTICLE IX ALTERATIONS 9.1 Alterations 9.2 Payment, Performance Bonds and Letters of Credit 9.3 Mechanics' Lien 9.4 Personal Property ARTICLE X LESSOR'S INSPECTION AND RIGHT OF ENTRY 10.1 Inspection by the Lessor 10.2' The Lessor's Right of Entry ARTICLE XI UTILITY CHARGES 11.1 Lessee to Provide and Pay for Utilities 11.2 Lessor Not Liable for Failure of Utilities ARTICLE XII CONDITION OF SUBJECT PROPERTY 12.1 Condition of Subject Property 17 17 18 18 19 20 21 21 22 23 23 23 23 24' 24 ARTICLE XIII INDEMNIFICATION AND INSURANCE 13.1 Indemnification 13.2 Insurance 13.3 Damage or Loss to Lessee's Property ARTICLE XIV DAMAGE AND DESTRUCTION 14.1 Destruction of Subject Property ARTICLE XV COVENANT AGAINST WASTE AND INSPECTION 15.1 Waste 15.2 Inspection of Subject Property ARITICLE XVI PAYMENT OF IMPOSITIONS 16.1 Special Assessments and Taxes 16.2 Appealing Ad Valorem Taxes 16.3 Proof of Payment ARTICLE XVII EMINENT DOMAIN 17.1 Eminent Domain ARTICLE XVIII ASSIGNMENTS AND SUBLETTING 18.1 Assignment and Subletting of Subject Property 18.2 Event of Bankruptcy ARTICLE XIX OWNERSHIP OF IMPROVEMENTS 19.1 Ownership of Improvements ARTICLE XX SIGNAGE 20.1 Signs ARTICLE XXI ENVIRONMENTAL LIABILITY 21.1 Definition of Terms 21.2 Lessee Inspection 21.3 Lessee Environmental Covenant 21.4 Remediation iii 25 25 27 28 29 29 29 30 30 31 32 32 33 34 34 36 37 38 21.5 Closure 21.6 Environmental Liens 21.7 Environmental Indemnity 21.8 Environmental Assessment at End of Lease Term ARTICLE XXII DEFAULT PROVISIONS 22.1 Events of Default — Lessee 22.2 Remedies in Event of Lessee's Default 22.3 Repeated Defaults , 22.4 Automatic Termination of Lease ARTICLE XXIII NOTICES 23.1 Notices ARTICLE XXIV HOLDING OVER 24.1 Holding Over ARTICLE XXV UNAVOIDABLE DELAY 25.1 Unavoidable Delay(s) 25.2 Manner of Notice of Unavoidable Delay(s) and Conditions with Respect to Performance of Obligations ARTICLE XXVI MISCELLANEOUS PROVISIONS 26.1 Ingress and Egress 26.2 Successors and Assigns 26.3 Surrender of Subject Property 26.4 Amendments 26.5 Construction of Agreement 26.6 Court Costs and Attorneys' Fees 26.7 Waiver of Jury Trial 26.8 Severability 26.9 Waiver 26.10 Captions 26.11 Radon 26.12 No Recordation 26.13 Agreement Preparation 26.14 Conflict of Interest Nq 39 39 40 41 42. 43 44 44 45 45 46 46 47 47 47 47 47 48 48 48 48 49 49 49 49 49 00- 926 26.15 Award of Agreement 49 ARTICLE XXVII QUIET ENJOYMENT 27.1 Quiet Enjoyment 50 ARTICLE XXVIII AFFIRMATIVE ACTION 28.1 Affirmative Action 50 28.2 Nondiscrimination 50 ARTICLE XXIX MINORITY PROCUREMENT 29.1 Minority/Women Business Utilization 50 ARTICLE XXX ENTIRE AGREEMENT 30.1 Entire Agreement 51 ARTICLE XXXI APPROVAL BY OVERSIGHT BOARD 31.1 Approval by Oversight Board 51 EXHIBIT A Legal Description of Property EXHIBIT B Possession Certificate v = 00- 926 0 � . LEASE AGREEMENT This Lease Agreement. (the "Agreement" or "Lease Agreement"), is made and entered into this day of , 2000, by and between. the City of Miami, a municipal corporation of the State of Florida (hereinafter called the "Lessor") and the Overtown Youth Center, a non-profit corporation of the State of Florida (hereinafter called the "Lessee") WITNESSETH NOW, THEREFORE, in consideration of the premises and mutual covenants herein after contained to be observed and performed, the Parties hereto do hereby covenant and agree as follows: ARTICLE I EXHIBITS AND DEFINITIONS 1.1. Exhibits Attached hereto and forming a part of this Lease Agreement are the following Exhibits: Exhibit A -- Legal Description of Subject Property Exhibit B -- Possession Date Certificate 1.2. Defined Terms; Singular, Plural And Gender. Any word contained in the text of this Lease 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 Lease Agreement the following words shall have the meanings attributed to them in this Section: (a) "Annual Plan" has the meaning ascribed to it in Section 3.4. (b) "Certificate of Occupancy" means the certificate issued by the City of Miami Building Department as defined within the South Florida Building Code Section 307.1 and in accordance with City of Miami Ordinance No. 61-45. (c) "City" or the "Lessor" has the meaning ascribed to it in the opening paragraph of this Lease Agreement. Q®_ 9.26 (d) "City Manager" means the administrative head of the City's government who has been appointed by the City Commission of the City of Miami in accordance with the provisions of Section 15 of the Charter of the City of Miami, as amended, and who is authorized to execute this Lease Agreement and other documents including notices required hereunder. (e) "Construction Documents" means the. final working drawings and specifications including the following information: definitive architectural and landscape architectural drawings; definitive foundation and structural drawings; definitive electrical and mechanical drawings; and plans for all lighting facilities affecting the exterior appearance of the Leasehold Improvements. (f) "Design and Site Plan" has the meaning ascribed to it in Section 4.6. (g) "Director" means the department head in charge of Lessor's Department of Parks and Recreation. (h) "Environmental Condition Acceptance Notice" means written notification from Lessee to Lessor stating that Lessee completed its investigation and evaluation of the environmental conditions on the Subject Property, and that Lessee elects to proceed with the development of the Project. (i) "Event of Lessee's Default" has the meaning ascribed to it in Section 22. L (j) "Fiscal Year" means each consecutive twelve-month interval commencing on January lst and expiring December 31 St. (k) "Impositions" means all governmental assessments, including assessments imposed by the City, franchise fees, excises, license and permit fees, fire fees, parking surcharges, levies, charges and taxes, including ad valorem real estate taxes on the land under the Subject Property and the Leasehold Improvements, general and special, ordinary and extraordinary properly levied against the Subject Property and the Leasehold Improvements and/or the Lessee's Leasehold Estate which constitute a lien on the Subject Property or the Leasehold Improvements. (1) "Initial Term" has the"meaning ascribed to it in Section 2.2. (m) "Lease Date" means the date this Lease Agreement is last signed by the Lessee and City Manager on behalf of the Lessor, after approval by the City of Miami Commission. 2 00- 926 (n) "Lease Term" means the Initial Term, and if the Lessee elects to extend the term, after Lessee exercises its option with respect thereto, all references in this Lease Agreement to the Term shall be deemed to include the Additional Term(s) as such terms are described and fixed in Section 2.3, and additional extensions created by Unavoidable Delay. (o) "Lease Year" shall mean any period of time consisting of Twelve (12) consecutive calendar months commencing on the Possession Date and each anniversary thereafter during the Lease Term. (p) "Leasehold Improvements" means all the buildings, structures and improvements, including the improvements described in the approved Design and Site Plan and Construction Documents, and any improvement constructed thereafter from time to time during the Lease Term that are hereafter located upon the Subject Property; as well as any apparatus and equipment incorporated into the Leasehold Improvements at any time, including. all fittings, appliances, machinery, heating equipment, lighting equipment, cooling equipment, air conditioning and ventilating equipment, wiring, controls, communications equipment, plumbing, switchboards, antennae, elevators, escalators, floor coverings, refrigerating equipment, hot water heating and all other appliances and equipment; excepting only in each case articles of Personal Property and trade fixtures owned by Lessee, or others which can be removed without defacing or materially injuring the Leasehold Improvements. (q) "Legal Requirements or Applicable Law" means applicable laws, Florida Statutes, codes, City and Dade County ordinances, orders, judgments, decrees and injunctions from courts having jurisdiction over the Subject Property, rules, and requirements of State and local boards and agencies with jurisdiction over the Subject Property, now existing or hereafter, enacted, adopted, foreseen and unforeseen, ordinary and extraordinary, which may be applicable to the Subject Property or any part of it. (r) "Lessee" has the meaning ascribed to it in the opening paragraph of this Lease Agreement as well as Lessee's successors and/or assigns. (s) "Operating Budget" has the meaning ascribed to it in Section 3.4. (t) "Parties" means the Lessor and Lessee. (u) "Person" means any natural person, trust, firm, partnership, corporation, joint venture, association, or any other legal or business entity investment enterprise. 3 00- 926 M "Personal Property" means all property owned and used by the Lessee in connection with and located upon the Subject Property, subject to rights of any secured party or title retention agreement of a third party. (w) "Possession Date" means the date described in Section 4.3. (x) "Required Operating Hours" means the hours described in Section 3.5. (y) "Section", "subsection", "paragraph", "subparagraph", "clause", or "subclause followed by a number or letter means the section, subsection, paragraph, subparagraph, clause or subclause of this Lease Agreement so designated. (z) "Special Event" means an event that confers exclusive use of the Subject Property to a private entity or community organization for a specific period of time to the exclusion of regular public use programming. (aa) "Subject Property" means the land to be demised under the terms of this Lease Agreement, more particularly described in Exhibit A attached hereto and made a part hereof, together with all appurtenant rights belonging and all buildings and improvements now or hereafter located on or under such land including, without limitation, all of the Leasehold Improvements. (bb) "Unavoidable Delay(s)" means damage or destruction by fire or other casualty, whether similar or dissimilar, acts of the federal, state, county and/or city governments, including acts pertaining to strikes, embargoes, shortages of material or labor, labor troubles or labor disputes, force majeure, unusually adverse weather conditions, or other like or unlike events or conditions beyond the control of the Parties, including any court actions, and injunctions by third parties. (cc) "Work" means all construction to be performed by the Lessee, including any repairing, restoring, removing, or replacing of the Leasehold Improvements. ARTICLE II DESCRIPTION AND TERM 2.1 The Demise Upon and subject to the terms, covenants and conditions hereinafter set forth, Lessor hereby leases to Lessee and Lessee hereby leases from Lessor the Subject Property. 4 00- 926 2.2 Term of Use and Conditions Precedent The term of this Lease Agreement shall be for a five (5) year period (the "Initial Term") commencing on the Possession Date and expiring five (5) years thereafter, unless sooner terminated as provided herein 2.3 Option to Extend The Lessee is hereby granted the option of extending this Lease Agreement for five (5) additional five (5) year periods (the "Additional Terms") provided that no Event of Default, as this term is defined in Section 22.1 herein, has occurred and is continuing, and provided Lessee can demonstrate to the City Manager that it can continue to perform all of its covenants, agreements and obligations under this Lease Agreement in a fiscally sound manner. If Lessee elects to exercise its option, Lessee must deliver written notice of its intent to the Lessor six (6) months in advance of expiration of the Initial Term or of the then Additional Term, but no earlier than twelve (12) months prior to the expiration of the Initial Term or the then Additional Term. In the event any option to extend the Initial Term or any Additional Term of this Lease Agreement is exercised, -the Lessor will retain the Security Deposit provided for in Section 5.2 hereof, for .the same purposes as described therein. ARTICLE III PURPOSE OF USE.AND OCCUPANCY 3.1 Authority for Lease Lessor and Lessee acknowledge that this Lease being executed pursuant to an exemption under Section 29-B of the City of Miami Charter that exempts from the competitive bidding requirements established therein a disposition "implementing [a] project[s]'authorized under the Florida Community Redevelopment Act of 1969. The non-profit status of Lessee, together with the authorized use of the Subject Property are the factors that qualify this Lease under the aforementioned exemption. Accordingly, in the event that the property ceases to be used for the purposes described in Section 3.2 below, or Lessee ceases to be a not-for-profit corporation, then this Lease Agreement and all rights of Lessee hereunder shall immediately and automatically terminate 5 00- 926 • •. 3.2 Purpose of Use and Occupancy of Subject Property Lessee represents and warrants to the Lessor that it shall use the Subject Property exclusively to provide public -educational and recreational opportunities, at no cost, to inner City youth and their families primarily residing in the Overtown area.. The Subject Property shall not be used for any other purpose, provided, however, that with the prior written consent of the City Manger, Lessee may expand the use of the Subject Property to add other uses to implement projects authorized under the Florida Community Redevelopment Act of 1969. 3.3 Operations The Lessee shall conduct its operations- in an orderly manner reasonably intended notto disturb or be offensive to customers, patrons or others in the immediate vicinity of such operations. 3.4 Annual Plan Prior to the commencement of program operation and on each October 1 st during the Lease Term hereof, the Lessee shall prepare and present, in a form reasonably acceptable to the Director, the following items for the upcoming Fiscal Year, for the Lessee's operations at the Subject Property, for the review and approval of the Director (hereinafter collectively referred to as the "Annual Plan"), which approval shall not be unreasonably withheld or delayed: (a) A description of programs and activities and their related policies, rules, procedures and objectives; (b) A description of staffing and supervision and responsibilities of each staff member; (c) A description of the Lessee's general marketing strategy, including target population; (d) A budget for the upcoming Fiscal Year ("Operating Budget") which' budget shall include a projected income and expense statement, a projected balance sheet and projected source and application of funds. More specifically, the proposed budget shall include, but not be limited to, the following detailed projections: (1) Revenues by categories from all revenue sources associated with operations in the Subject Property and any inkind services; (2) Operating expenses for the Lessee's services conducted at the Subject Property; (3) Administrative costs; 'e 6 00 926 (4) Utilities expense; (5) Repairs and maintenance expenses; (6) General Expenses; (7) Reserves for replacement and major repairs. In the event this Lease Agreement is extended beyond the Initial Term, prior to the commencement of Lease Year six (6) and on each October 1st thereafter, Lessee shall submit a budget of Lessee's recommended repairs, renewals, revisions, rebuilding, replacements, substitutions and improvements to the Subject Property, the furnishings and equipment which are of a capital nature, and a Schedule of. Sources and Applications of Funds (in reasonable detail) relating thereto (the "Capital Budget"). The Schedule of Sources and Applications of Funds shall be subject to the approval of the Lessor prior to the commencement of any such work in accordance with Section 9.1 of this Lease Agreement. The Capital Budget shall include a copy of the engineer's report prepared pursuant to Section 8.1 and an estimate for the cost of plans and specifications, material and labor; The Lessee agrees to use its best efforts to make such changes to its programs and operations, in a timely manner, as may be reasonably requested by the Director and/or the OAB from time to time. In the event of a dispute between the Parties regarding the approval of the Annual Plan, the Parties agree to mutually select a neutral third party to resolve the disagreement. 3.5 Continuous Duty To Operate Except where the Subject Property is rendered untenantable by reason of fire, act of God, or other casualty, the Lessee shall at all times during the Lease Term hereof (i) occupy the Subject Property; (ii) continuously conduct operations on the Subject Property in accordance with the terms of this Lease Agreement; (iii) at all times keep the Subject Property fully stocked. with materials, trade fixtures and furnishings necessary and proper to operate the Subject Property and (iv) keep the Subject Property open for operation during hours established from time to time and approved by the Director, which approval shall not be unreasonably withheld (hereinafter the "Required Operating Hours"). 3.6 Overtown Advisory Board Upon request of the Lessor, Lessee shall submit a copy of its Annual Plan to the Overtown Advisory Board ("OAB") for its review in order to obtain its feedback and recommendations. 00- 926 3.7 Police Protection As a specific obligation of the Lessor under this Lease Agreement, the Lessor agrees to provide appropriate police protection for the benefit of the Lessee in connection with the operation of the Subject Property in a manner consistent with police protection provided by the Lessor to those similar type facilities.that are owned and/or operated by the Lessor. ARTICLE IV POSSESSION OF THE SUBJECT PROPERTY AND CONSTRUCTION OF LEASEHOLD IMPROVEMENTS 4.1. The Leasehold Improvements The Parties agree that the development of the Leasehold Improvements as.defined herein shall be developed by Lessee, at its sole.cost and `expense, and pursuant to proper permits and substantially in the manner provided by this Section, and in accordance with the provisions of this Lease, and Applicable Law, shall design and construct on the Subject Property the Leasehold Improvements. The Lessee shall design and construct the Leasehold Improvements that are to be more particularly described in the Design and Site Plan and Construction Documents. The Leasehold Improvements include the construction of an approximately 17,000 square foot building plus site improvements. 4.2 Lessee's Financial Obligations It shall be the responsibility of the Lessee to secure sufficient funds to design, construct and lease the Leasehold Improvements in such a manner as to meet its obligations under this Lease. Lessee hereby covenants that Lessee shall initially invest or cause to be invested no less than two million five hundred thousand dollars ($2,500,000) for the total construction costs of the Leasehold Improvements. 4.3. Delivery of Possession of Subject Property (the "Possession Date") (a) The Lessor shall deliver possession of Subject Property to Lessee, and Lessee, subject to the provisions of Article XXV, Unavoidable Delay, shall take possession thereof within thirty (30) days after the following conditions precedent (`.`Conditions Precedent") to the Possession Date have been complied with by the respective Parties: 8 006 926 (1) The .Lessee shall have submitted to the Lessor proof satisfactory to the City Manager that funds are available to construct the Leasehold Improvements; (2) The Lessee shall have submitted to the City Manager for his approval a plan for funding the maintenance and operation of the Subject Property during the Lease Term. (3) The Lessor must own and/or control the use of the Subject Property. (4) The City Manager shall have approved the Design and Site Plan, as provided in Section 4.6, which approval shall not be unreasonably withheld or delayed; (5) The Lessor shall have received the Environmental Condition Acceptance Notice from the Lessee; (6) The Lessor shall make available to Lessee, on or before ninety (90) days after the Lease Date, for examination, a current, accurate and complete abstract of title or opinion of title for the Subject Property in order for the Lessee to determine and confirm whether the Lessor's fee simple title to the Subject Property is good, marketable and insurable. The Parties acknowledge the Lessor has requested the Community Redevelopment Agency to convey Lot 1, Block 2, Sost's Subdivision, as recorded in Plat Book B, Page 27 of the Public Records of Miami -Dade County, Florida, to Lessor for the purpose of entering into this Lease. It shall be the responsibility of the Lessor to diligently pursue the conveyance of this lot to Lessor. Lessee'shall be responsible for making itsown examination at its own expense which examination shall be complete within thirty (30) days of receipt, as to the state of the Lessor's title to the Subject Property. If title is found defective, Lessee shall notify Lessor in writing specifying defect(s). If said defect(s) render title unmarketable, the Lessor shall have one hundred twenty (120) days from receipt of notice within which to remove said defect(s). In the event the objection(s) are not cured to the reasonable satisfaction of the Lessee, (i) Lessee may accept this Lease Agreement with the existing title condition; (ii) Lessee may take necessary corrective title actions at no cost to Lessor; or (iii) at its option, the Lessee may terminate the Lease Agreement if the Lessee determines that the Lessor's title is defective, without either party being liable to the other therefor. If the Lessee 9 00- 926 elects to take .corrective title actions, the Lessor shall cooperate with and assist the Lessee in curing any title objections; (7) The Lessee, at its sole cost and expense, shall procure a current and accurate survey of the Subject Property, to be made by a surveyor licensed in the State of Florida. The survey shall be certified to the Lessor and Lessee. Lessee shall be responsible for making its own examination of the survey. In the event any encroachment is found, it shall be treated as an objection to title and shall be handled as provided in (5) above. The date that the Lessor delivers possession of the Subject Property to Lessee in accordance with this Article, by notice in writing, is herein called the "Possession Date". Lessor and Lessee agree to execute a Possession Date Certificate in the form of the certificate attached hereto as Exhibit B. In the event the Possession Date does not fall on the first day of the month, the Possession Date shall be adjusted to be the first day of the following month. (b) Lessee and the Lessor shall use good faith efforts to satisfy all of the aforesaid conditions precedent to Lessee's taking possession of the Subject Property. It is recognized by the Parties hereto that it is not the intention of either party to encumber the Subject Property with this Lease Agreement for an indefinite period of time during the period of satisfaction of the aforesaid conditions precedent and that therefore: (1) Any Lessor review and/or approval required above shall be promptly undertaken by the Lessor, but in no event shall the period of time available to the Lessor for such review and/or approval exceed fifteen (15) days from receipt by the Lessor of such request. In the event that such review by the Lessor requires additional or remedial action by the Lessee, the Lessee shall promptly undertake such additional or remedial action, but in no event shall the period of time available to the Lessee for such additional or remedial action exceed fifteen (15) days from receipt of the Lessor's request; provided, however, that if such additional or remedial action cannot reasonably be cured within such fifteen (15) day period, that Lessee shall be provided such additional. time as is necessary so long as Lessee shall commence the cure within said thirty (30) day period, and be 10 00- 926 diligently and continuously endeavoring to complete such additional or remedial action; and (2) The Lessee or the Lessor may terminate this Lease Agreement if all of the aforesaid Conditions Precedent are not satisfied on or before Six (6) months from the Lease Date, provided that, subject to the mutual consent of the Parties, the time for performance of any of the Conditions Precedent may be reasonably extended and Lessee may postpone taking possession of the Subject Property in the event of: (i) Any Unavoidable Delay; (ii) Delay in connection with review and approval by the City Commission and/or City Manager; and/or (iii) Delay in curing a title defect. (c) Notwithstanding anything herein to the contrary, prior to the Possession Date, the Lessee shall not be required to perform any of its obligations hereunder except as provided for in Article XXI with respect to Lessee's entry upon the Subject Property for purposes of conducting or causing the investigation and evaluation of the environmental conditions at the Subject Property. (d) Subject to Lessor's cooperation, the Lessee hereby undertakes and assumes sole and exclusive responsibility to cause and obtain the permitting of all the Leasehold _Improvements in accordance with 'the Construction Documents. Lessor agrees to cooperate frilly and promptly in the permitting process including, but not limited to, joining in any permit application, plats, opinion of titles, gap affidavits and other applicable applications or affidavits if required to do so. To the extent legally permissible, the Lessor shall waive building permit fees associated with construction of the initial Leasehold Improvements. 4.4 Additional Security For Lessee's Construction Obligations. In connection with the commencement and completion of constriction of the Leasehold Improvements, the Lessee further agrees with the Lessor as follows: (a) Prior to the commencement of construction of the Leasehold Improvements, the Lessee, at Lessee's sole cost and expense, shall obtain a Payment and Performance Bond or Letter of Credit. (b) The Payment and Performance Bond shall be issued by a company authorized to do business in the State of Florida in an amount equal to one hundred percent (100%) of the cost of the 00- 926 Leasehold Improvements plus unpaid professional design fees related to the preparation of the Construction Documents, for the Leasehold Improvements, naming the Lessor as the owner/obligee and the Lessee as the principal guaranteeing the payment and performance of Lessee's Leasehold construction obligations hereunder, free of mechanic's or other liens. The conditions of the payment and perfonnance bond shall be to insure that the Lessee will: (1) promptly make payment to all claimants, as defined in §255.05 Florida Statutes, supplying the Lessee with labor, materials, or supplies, used directly or indirectly by the Lessee in the prosecution of the Work provided for in this Lease Agreement; and (2) pay the Lessor all losses, damages, expenses, costs, and attorneys fees, including appellate proceedings, that the Lessor rightfully sustains because of a default by the Lessee pursuant to claims made under §255.05, Florida Statutes, as amended; and (3) perform the guarantee of all Work and materials furnished under this Lease Agreement relating to the Leasehold Improvements. The payment and performance bond shall be reduced in amount as the Work proceeds as certified by Lessee's architect, and may be terminated at such time as the Leasehold Improvements are completed as evidenced by the issuance of a Certificate of Occupancy; and reasonably satisfactory evidence is provided by the Lessee to the City Manager that the requirements of the payment and performance bond have been satisfactorily concluded. The form of the payment and performance bond shall be approved by the City Manager, which approval shall not be unreasonably withheld. (c) Should Lessee wish to utilize a Letter of Credit instead of a Payment and Performance Bond, then the Letter of Credit shall be in an amount equal to one hundred (100%) percent of the cost of the Leasehold Improvements plus unpaid professional design fees related to the preparation of the Construction Documents, for the. Leasehold Improvements and issued by a state or federal banking institution, or, if not by a state or federal banking institution, then by an institution approved by .the Finance Director of the Lessor,. which approval shall not be unreasonably withheld or delayed. The Letter of Credit shall insure the faithful performance by the Lessee of all of its construction obligations, under the same terms and conditions as the Payment and Performance Bond, as set forth in Section 4.4 (b) for the Leasehold Improvements. The Letter of Credit shall be renewed annually and shall be maintained at the Lessor's Department of Finance during the entire term of construction and until a 12 00 926 Certificate of Occupancy is issued for the Leasehold Improvements. The letter 'of credit shall be reduced in amount as the Work proceeds as certified by Lessee's architect, and may be terminated at such time as the Leasehold Improvements are completed as evidenced by the issuance of a Certificate of Occupancy for the Leasehold Improvements; and reasonably satisfactory evidence is provided by the Lessee to the City Manager that the requirements of the letter of credit have been satisfactorily concluded. The form of the Letter of Credit shall be approved by the City Manager, which approval shall not be unreasonably withheld or delayed. (d) During the course of construction, the Lessee shall provide the Lessor (if Lessor requires by notice in writing), once each month, a certificate of Lessee's architect (or copy thereof) certifying that those portions of.the Leasehold Improvements completed are in substantial accordance with the permitted Construction Documents; (e) During the course of construction, Lessor, its architects, engineers, agents and employees may enter upon at reasonable times, and inspect the Subject Property, and the construction of the Leasehold Improvements for the purpose of seeing that the Work conforms with the agreements contained herein. Lessee shall maintain copies of all Construction Documents and specifications relating to the construction and the construction site, and Lessor may examine the same at all reasonable times; and if required by Lessor, Lessee shall furnish, them with copies thereof at no cost. If during construction, Lessor, or its architect or engineer shall reasonably determine that the construction is not proceeding in accordance with the provisions of this Lease Agreement or with the Construction Documents and specifications, Lessor shall give written notice to Lessee specifying in detail the particular deficiency or defect and Lessee shall thereupon take such steps as are necessary to correct such deficiency or omission. 4.5 Time for Commencement and Completion of Leasehold Improvements. (a) Design and Site Plan. Lessee, with the advice and reasonable consent of the Lessor, will prepare and submit to the City Manager for his approval a preliminary design and site plan for the Leasehold Improvements. (b) Construction Documents. Based upon the approved Design and Site Plan, Lessee shall cause the preparation of all drawings, plans, specifications and other documents necessary for application for a Major Use Special Permit (the "Construction Documents"). Lessee shall cause the final Construction Documents to be completed and submitted to the appropriate authorities within ninety (90) 13 - 00- 926 days of the Possession Date. Within thirty (30) days after the City Commission's approval of the Major Use Special Permit, Lessee shall apply for a building permit. Lessee agrees that, subject to Unavoidable Delays, it shall promptly commence and diligently prosecute to full completion the development of the Leasehold Improvements within thirty (30) days after the date of receipt of a building permit and shall complete construction within twelve (12) months thereafter, subject to Unavoidable Delays. In the event of Unavoidable Delay, the date for commencement and/or the scheduled completion date shall be correspondingly extended by the same number of days involved in the period of the Unavoidable Delay. (c) Design and Site Plan, and Construction Documents and all Work by Lessee with respect to the Subject Property and the construction of the Leasehold Improvements thereon shall be performed in accordance with this Lease, the Miami Charter and Code, the South Florida Building Code and with the provisions of all other applicable federal, state and local laws and ordinances. (d) No approval by the City Manager or the City Commission of any Design and Site Plan or Construction Documents, respectively, pursuant to this Section shall relieve Lessee of any obligation it may have at law to file such Construction Documents with any department of the Lessor or any other governmental authority having jurisdiction over the issues; or to obtain any building or other permit or approval required by law. Lessee acknowledges that any approval given by the City Commission or the City Manager pursuant to this Section. shall not constitute an opinion or agreement by the Lessor that the plans are structurally sufficient or in compliance with any laws, codes or other applicable regulations. (e) After the Possession Date and during the construction of the Leasehold Improvements and throughout the Term, the Lessee shall permit appropriate representatives (such as building, zoning and fire in of the Lessor access to the Subject Property at all reasonable times, as the Lessor deems necessary for proper purposes of this Lease Agreement including, but not limited to, inspection of all work being performed in connection with the construction of the Leasehold Improvements. Any such access and inspections shall not interfere with or delay the Work being performed by or on behalf of the Lessee. Additionally, upon being contacted by the Lessee, the Lessor agrees to expeditiously cooperate with and assist Lessee in obtaining such inspections. (f) In respect to the Lessee's use and occupancy of the Subject Property (and the subsurface of it) during the progress and period of construction, or by anyone acting under the Lessee, except for the negligence of the Lessor, its officers, agents, and employees, contractors or subcontractors or invitees, the Lessee covenants to indemnify, defend and hold harmless the Lessor and its agents and employees from and against all claims and demands whatsoever for loss or damage, including Subject Property damage, 14 00- .926 personal injury and wrongful death which occurs at the Subject Property arising out of construction and development of the Subject Property including the Leasehold Improvements, which the Lessee is responsible for and which results from the actions or omissions of Lessee or any of its agents, contractors, servants, employees, licensees or invitees. (g) Within ninety (90) days after completion of all of the Leasehold Improvements, the Lessee shall furnish the Lessor with a final survey prepared by a registered land surveyor showing all improvements constructed by the Lessee, for itself, to be within the perimeter lines of the Subject Property and a copy of as -built Construction Documents. , A DTTr'i V [T CONSIDERATION 5.1 Annual Fee The Lessee agrees to pay to the Lessor an annual rent of one dollar and 00/100 ($1.00), plus State of Florida Sales and Use Tax, if applicable, which shall be paid.in advance and in full on the first day of each Lease Year, without notice or demand (hereinafter the "Annual Fee"). Payments shall be made payable to "City of Miami" and shall be mailed to City of Miami, Department of Finance, Rental Collections, 444 SW 2nd Avenue, 6th. Floor, Miami, Florida 33130, or such other address as. may be designated from time to time. 5.2 Security Deposit Simultaneously with the execution of this Lease Agreement by Lessee, Lessee shall deposit with Lessor the sum of one thousand dollars and 00/100 ($1,000) as a security deposit (the "Security Deposit"). The Security Deposit shall be security for the payment and performance by Lessee of all of Lessee's obligations, covenants, conditions, and agreements under this Lease. Lessor shall have the right, but shall not be obligated, to apply all or any portion of the Security Deposit to make any such payment or perform any such act on Lessee's part without waiving its right based upon any default of Lessee and without releasing Lessee from any obligations hereunder. Lessee shall promptly deposit with Lessor the amount necessary to restore the Security. Deposit to its full amount. The Security Deposit shall not be deemed liquidated damages and application of the Security Deposit to reduce Lessor's damages, shall not preclude Lessor from recovering from Lessee all additional damages incurred by Lessor. The Security 15 ®®® 926 Deposit shall bear no interest. If legally permissible, Lessor shall be entitled to co -mingle the Security Deposit with Lessor's other funds If Lessee fully and faithfully complies with all of the terms, provisions and conditions of the Lease, the Security Deposit shall .be returned to Lessee without interest after both: (i) the expiration of the Lease Term, as may be extended pursuant to the provisions of this Lease, and (ii) Lessee's delivery to . Lessor of the entire Subject Property in the good condition, ordinary wear and tear excepted; have occurred. In the event of a sale or transfer of Lessor's interest in the Subject Property, Lessor shall have the right to transfer the Security Deposit to such transferee and thereafter Lessor shall be released from all liability relating to the return of the Security Deposit, and Lessee shall look to such transferee for the return of the Security Deposit. 5.3 Additional Payments In addition to the Annual Fee, all other payments or charges payable by the Lessee, however denoted, are called "Additional Payments". 5.4 Promotion of the Lessor The Lessee acknowledges the benefits afforded to it by the Lessor's providing the Subject Property for use for the Lessee's operations, and shall provide recognition of the City of Miami, in a manner reasonably satisfactory to the Lessor, in all its marketing, advertising and promotional materials including those materials used for Special Events. 5.5 Community Services In consideration of the granting of this Lease, the Lessee shall permit the Lessor to use the Property and the improvements, at no cost, in connection with an event held or sponsored by the Lessor, subject to said use not interfering with the scheduled programs being offered by the Lessee. Lessee shall use its best efforts to work with the Lessor regarding the scheduling of an event. 16 00- 926 ARTICLE VI RECORDS AND AUDITING 6.1 Records During the Lease Term of this Lease Agreement, the Lessee shall maintain and keep, or cause to be maintained and kept at the Subject Property or such other location as may be approved by the Director, a full, complete and accurate daily record and account of all revenues and expenses arising or accruing by virtue of its operations conducted at or related to the' Subject Property, including, but not limited to, any grants, donations, foundation support, tournaments, Special Events and/or other contributions to the Lessee. All records and accounts shall be available for inspection and/or audit by the Lessor and its duly authorized agents or representatives during the hours of 8:00 AM to 5:00 PM, Monday through Friday, and shall be maintained in accordance with generally accepted accounting principles. The Lessee shall keep and preserve, or cause to be kept and preserved, said records for not less than sixty (60) months after the expiration of this Lease Agreement. For the same period of time, the Lessee shall also retain copies of all sales and tax returns covering its operations at the Subject Property, and shall, upon demand, deliver photographic copies thereof to the Lessor at no cost. The Lessee will cooperate with the Lessor's internal auditors (or such other auditors designated by the Lessor) in order to facilitate the Lessor's examination of records and accounts. The Lessee agrees that all documents, records and reports maintained and generated pursuant to this Lease Agreement shall be subject to the provisions of the Public Records Law, Chapter 119, Florida Statutes. 6.2 Audit The Lessee shall deliver or cause to be delivered to the Director within sixty (60) days after the end of each Fiscal Year, a financial statement for the prior Fiscal Year for the Lessee's operations and services at the Subject Property, compiled by an independent certified public accountant (the "CPA"), at the Lessee's sole cost and expense. In the event the Possession Date falls between July 1st and December 31st, the Lessee shall not be required to file a financial statement for its first Fiscal Year of operation at the Subject Property until the end of the following Fiscal Year. If the Possession Date falls between January l st and June 30th, the Lessee shall be required to submit a financial statement for the Fiscal Year or portion thereof in accordance with the time frame set forth above. 17 00- 926 In the event Lessee is in default, upon request of Lessor, Lessee shall deliver to or cause to be delivered to the Director within sixty (60) days after receipt of the request from Lessor, a financial statement for each Fiscal Year specified in the request for the Lessee's operations and services at the Subject. Property, prepared and certified by an independent certified public accountant (the "CPA"), at the Lessee's sole cost and expense. Said CPA shall certify that he made a complete examination of the books, state sales tax returns, and federal income tax returns of the Lessee and that the financial statements are prepared in accordance with generally accepted accounting principles and practices and represents the revenues and expenses of the Lessee for the period indicated therein. Notwithstanding the above and during the sixty (60) month period described in the Section 6.1 of this Lease Agreement entitled "Records", at its option, the Lessor may cause, at its sole cost and expense, a complete audit to be made of the Lessee's business affairs in connection with the Lessee's operations on, from or related to the Subject Property for the period covered by any financial statement, report or record furnished by the Lessee to the Lessor. ARTICLE VII LICENSES; COMPLIANCE WITH LAWS 7.1 Licenses and Permits The Lessee shall, at Lessee's sole cost and expense, obtain any and all licenses and permits necessary and in connection with Lessee's use and occupancy of the Subject Property. To the extent permitted by law, the Lessor shall waive any and all license and permit fees. 7.2 Compliance with Laws Lessee accepts this Lease Agreement and hereby acknowledges that Lessee, at its sole cost and expense, shall comply with all Applicable Laws, as the same may be amended, replaced, supplemented or superseded from time to time, and any and all requirement of public liability, fire and other policies of insurance which may be applicable to its operations, activities, rights, and obligations under this Lease, and the Leasehold Improvements, is a condition of this Lease. 18 pq® 926 ARTICLE VIII MAINTENANCE AND REPAIRS 8.1 1 Maintenance and Repair of Subject Property The Lessee shall, at its sole cost and expense, at all times during the Lease Term, provide all maintenance, including preventive maintenance, repairs, substitutions and replacements, as necessary, to the Subject Property including, without limitation, the equipment, pavement, driveways, lighting, interior walls, fixtures, floor coverings, elevator (if applicable), ceilings, plumbing, mechanical, heating, air conditioning, electrical and life safety systems and structural portions including exterior walls, windows, underflooring and roof. All maintenance, repairs and replacements shall be.performed in a manner and level of service satisfactory to the Director as. compared to similar type facilities. The Lessee shall not commit or suffer to be committed, any waste in or upon the Subject Property or do anything in or on the Subject Property which, in the Lessor's sole opinion, detracts from the appearance of the Subject Property. All repairs or replacements shall be performed to the satisfaction of the Director. In addition to the above, in the event this Lease Agreement is extended beyond the Initial Term, commencing in the sixth, Fiscal Year, and biennially thereafter, the Lessee, at its sole cost and expense, shall have a qualified engineer perform a physical inspection. of the Subject Property including, but not limited to, all structural components, plumbing, life safety and mechanical equipment as part of a preventive maintenance program and shall submit the engineer's report to Director with the proposed Capital Budget. Upon the expiration or earlier termination of this Lease Agreement as provided herein, all revenues held in reserve for the purpose of repairing, replacing or modifying those items specified in the Capital Budget provided for above, shall be deposited with the Lessor within sixty (60) days following the expiration or earlier termination of this Lease Agreement. Nothing herein shall imply that the Lessee should perform maintenance, repair and inspections only as required hereunder. The Lessee shall, at all times, be responsible for the condition ofthe Subject Property and shall perform repairs required in a timely manner so as to prevent injury to persons and waste to the Subject Property 19 QO- 926 8.2 Preventative Maintenance and Services Lessee shall, at its sole cost and expense, provide the following preventive maintenance and services: (a) Cleaning and janitorial services for the Subject Property; (b) Grounds services including lawn, shrub and tree maintenance and removal of any rubbish or obstructions from the Subject Property; (c) Interior and exterior window cleaning to be performed as needed but no less than once every one hundred and twenty (120) days; (d) Vermin control as necessary, but no less than once every sixty (60) days; (e) Periodic maintenance and cleaning of kitchen and exhaust equipment, and grease trapsor grease inceptors, if applicable. (f) Painting of interior and exterior of buildings including caulking of all window and door frames, painting of signs, if applicable, and restriping of parking lot on Subject Property as necessary, but no less than once every four years; If Lessee refuses, neglects or fails to provide the above services or does not provide adequate services within thirty (30) days after written demand from Lessor, Lessor may take corrective measures or cause the Subject Property to be cleaned or repaired without waiving its right based upon any default of Lessee and without releasing Lessee from any obligations hereunder. Lessee shall pay Lessor, as Additional Payments, the full cost of such work within thirty (30) days of receipt of an invoice indicating the cost of such corrective measures or cleanup. Failure to pay such invoice shall constitute a default of this Lease Agreement as provided in Section 22.1 below. Notwithstanding the above, Lessee's failure to perform the corrective measures or. cleanup to the Subject Property as directed without the necessity of Lessor repairing the Subject Property shall constitute a default of this Lease Agreement as provided in Section 22.1 below. Nothing herein shall imply that maintenance, repair and inspections should be performed by Lessee only at the suggested intervals. Lessee shall, at all times, be responsible for the condition of the Subject Property and shall perform repairs required in a timely manner so as to prevent injury to persons and waste to property. 20 Q0� 996 ARTICLE IX ALTERATIONS 9.1 Alterations Lessor's consent shall not be required as to any non-structural improvement, repair, alteration, repair, addition, deletion, partition or change (hereinafter collectively called "Alterations") to the Subject Property involving a cost less than twenty-five thousand dollars ($25,000). Prior to construction of any structural Alteration or any non-stuctural Alteration involving a cost in excess of twenty-five thousand dollars ($25,000), the Lessee shall submit for prior approval by the Director detailed plans and specifications of the proposed Alterations, and proof of funding and/or its financing plans. The Lessee shall be solely responsible for applying and acquiring all necessary building, zoning and other permits. The Lessee shall be responsible for any and all costs associated with any Alterations including, but not limited to, design, construction, installation and permitting costs. All Alterations to the Subject Property, whether or not by or at the expense of the Lessee, shall, unless otherwise provided by written agreement of the Parties hereto, immediately upon their completion become the property of the Lessor and shall remain and be surrendered with the Subject Property. All Alterations must be in compliance with all statutes, laws, ordinances and regulations of the State of Florida, Miami -Dade County, City of Miami and any other agency that may have jurisdiction over the Subject Property as they presently exist and as they may be amended hereafter. All equipment and personal property used by the Lessee at the Subject Property shall be of good quality and suitable for its purpose. The Lessee .agrees that the Director shall make the final decision, using his or her reasonable discretion, as to the age, condition, design and acceptability of Alterations and equipment, furnished for installation and use. 9.2 Payment Performance Bonds And Letters Of Credit No construction shall commence on the Subject Property until the Lessee has written approval from the Director which approval shall not be unreasonably withheld or delayed. The Lessor, at its sole discretion, may mandate that the requested construction be secured by means of a performance bond or letter of credit (hereinafter "L.C.") in the amount of one hundred percent (100%) of the total construction cost, or in such other amounts as may be designated by the Director. The Lessee shall be responsible for 21 pp- 926 maintaining or causing to be maintained said bonds or L.C. in frill force and effect throughout the construction period. Any bond or L.C. provided to the Lessor hereunder shall be issued by insurance and surety companies or banks acceptable to the Lessor and duly qualified to transact such business in the State of Florida and shall be, subject to form and substance approval by the Director. 9.3 Mechanics' Liens The Lessee shall not permit any mechanics' liens to be filed against the Subject Property, against the Lessee's interest in the property, or against any Alteration by reason of work, labor, services or materials supplied to the Lessee or anyone having a right to use the Subject Property. Nothing in this Lease Agreement shall be construed as constituting the consent or request of the Lessor, 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 Subject Property nor as giving the Lessee 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 the Lessor's interest in the Subject Property. If any mechanics' lien shall at any time be filed against the Subject Property, the Lessee shall cause it to be discharged of record within fifteen (15) days after the date the Lessee has knowledge of its filing. If the Lessee shall fail to discharge a mechanics' lien within that period, then in addition to any other right or remedy, the Lessor 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 of bonding, or in the event the Lessor 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 by the Lessor shall constitute Additional Payments due and payable under this Lease Agreement and shall be repaid to the Lessor by the Lessee immediately upon rendition of an invoice or bill by the Lessor. Notwithstanding the aforementioned, the Lessee shall not be required to pay or discharge any mechanics' lien, and will not be considered to have committed an Event of Default, as hereinafter defined, so long as: (i) the Lessee shall in good faith proceed to contest -the lien by appropriate proceedings, (ii) the Lessee shall have given notice in writing to the Lessor of its intention to contest the validity of the lien, and (iii) the Lessee shall furnish and keep in effect a surety bond of a responsible and substantial surety company reasonably acceptable to Lessor or other security reasonably satisfactory to Lessor in an amount sufficient to pay one hundred ten percent of the amount of the 22®� contested lien claim with interest costs and expenses, including reasonable attorneys' fees, to be incurred in connection therewith. 9.4 Personal Property The Lessee shall have the right to remove any movable personal property that it places in or on the Subject Property. If any part of the Subject Property is damaged by the removal of suchitems, said damage shall be repaired by the Lessee at its sole cost and expense. The Lessee's failure to repair any damage caused to the Subject Property within fifteen (15) days after receipt of written notice from the Lessor directing the required repairs, shall constitute an Event of Default. The Lessor may, however, elect to cause the Subject Property to be repaired at the sole cost and expense of the Lessee. The Lessee shall pay the Lessor the full cost of such repairs within fifteen (15) days of receipt of an invoice . indicating the cost of such required repairs. ARTTC LF. X LESSOR'S INSPECTION AND RIGHT OF ENTRY 10.1 Inspection by the Lessor The Lessor shall have the authority to make periodic inspections of the Subject Property and improvements thereof, during normal working hours. The Lessee, at its sole cost and expense, shall be required to make any modifications in cleaning or maintenance methods reasonably required by the Lessor. 10.2 The Lessor's Right Of Entry The Lessee agrees to permit the Lessor to enter upon the Subject Property at all reasonable times, for any purpose the Lessor deems necessary to, incident to, or connected with the performance of the Lessor's duties and obligations hereunder or in the exercise of its municipal functions. ARTICLE XI UTILITY CHARGES 11.1 Lessee to Provide and Pay for Utilities. The Lessee shall pay, or cause to be paid, all proper charges, including connection and tapping fees, for the use of gas, electricity, light, heat, water, sewer, storm sewer and power, fire lines, telephone, 23 . 00- 926 trash and garbage removal, protective services and other communication services, and for all other public or private utility services, which shall be used, rendered or supplied upon or in connection with the Subject Property and the Leasehold Improvements or any part of it, at any time during the Lease Term. The Lessee shall comply with all contracts relating to any services and will do all other things required for the maintenance and continuance of all services as are necessary for the proper maintenance and operation'of the Subject Property and the Leasehold Improvements. The Lessee will also, at its sole cost and expense, procure any and all necessary permits, licenses or other authorization required for the lawful and proper installation and maintenance upon the Subject Property of wires, pipes, conduits, tubes and other equipment and appliances for use in supplying any such utilities, services or substitutes to the Subject Property and the Lessor will cooperate with and assist the Lessee in such endeavor. 11.2 Lessor Not Liable for Failure of Utilities Lessor shall not be liable (other than for its own or any of its agents, servants and employees gross negligence) 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 water, sewer, gas or electricity which may leak or flow from the water, sewer or gas mains on to. any part of the Leasehold Improvements or the Subject Property. ARTICLE XII CONDITION OF SUBJECT PROPERTY 12.1 Condition of Subject Property The Lessee takes the Subject Property in its present "as is condition and state of repair and without any representation by or on behalf of the Lessor, and agrees that the Lessor shall not be liable for any latent, patent or other defects on or in the -Subject Property. At the expiration or earlier termination of the Lease Term of this Lease Agreement, the Lessee shall surrender the Subject Property "broom clean" and in good order and condition, ordinary wear and tear. 24 0®— 926 ARTICLE XIII INDEMNIFICATION AND INSURANCE 13.1 Indemnification The Lessee shall indemnify, protect, defend and hold harmless the Lessor, its officials, agents and employees, 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 Subject Property or the surrounding areas, whether such claim shall be made by the Lessee, or an employee, agent, contractor, invitee or guest of the Lessee, an employee, agent or official of the Lessor 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 Lessor or its employees, agents or officials were negligent. The Lessee 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 all costs, attorneys' fees, expenses and liabilities incurred in and about the defense of any such claims and the investigation thereof. The Lessee shall also indemnify, defend, protect and hold the Lessor harmless from and against any and all claims arising from any breach or default in performance of any obligation of the Lessee's part to be performed under the terms of this Lease Agreement, or arising from any act, neglect, fault or omission of the Lessee, its employees, agents, contractors, invitees and guests, and from and against all costs, attorneys' fees, expenses and liability incurred in connection with any such claim or any action or proceeding brought thereon. In case any action or proceeding shall be brought against the Lessor.by reason of any claim, upon notice from the Lessor the Lessee shall defend the same at the Lessee's expense by counsel approved in writing by the Lessor. The Lessor reserves the right to defend itself. The Lessee shall immediately notify the Lessor, in writing, of any claim or action filed, of whatever nature, arising out of the use or operation of the Subject Property by the Lessee, its employees, agents, contractors, invitees and guests. The Lessee shall also immediately notify the Lessor if the Lessee 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 Subject Property by the Lessee, its employees, agents, contractors, invitees and guests. 13.2 Insurance The Lessee, at its sole cost and expense, shall obtain and maintain in full force and effect at all times throughout the Lease Term of this Lease Agreement and through any periods of extensions, and 25 00- 926 shall require any contractor performing work on the Subject Property prior to the commencement of the work, the following insurance: (a) Commercial General Liability insurance on a comprehensive general liability coverage form,.or its equivalent, including contractual liability, products and completed operations, personal injury and premises and operations coverages against all claims, demands or actions, bodily injury, personal injury, death or property damage occurring in the Subject Property with such limits as may be reasonably requested by the Lessor from time to time but not less than $1,000,000 per occurrence combined single limit for bodily injury and property damage. The Lessor shall be named as Additional Insured on the policy or policies of insurance. (b) "All Risk" property insurance against loss or damage by fire, windstorm, flood with such endorsement for extended coverage, vandalism, malicious mischief and special coverage, insuring 100% of the replacement cost of the Subject Property (exclusive of excavations, foundations and footings), including but not limited to, alterations, improvements, fixtures, equipment, furniture and all other personal property in and about the Subject Property. Such policy may have a deductible not to exceed three percent (3%) of insured value. The Lessor shall. be named as a Loss Payee. (c) Automobile liability insurance covering all owned, non -owned and hired vehicles used in conjunction with operations covered by this agreement. The policy or policies of insurance shall contain such limits as may be reasonably requested by the Lessor from time to time but not less than $500,000 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 business. (d) Worker's Compensation in the form and amounts required by Florida law. (e) The Lessor reserves the right to amend the insurance requirements by the issuance of a notice in writing to the Lessee. The Lessee shall provide any other insurance or security reasonably required by the Lessor. (f) 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 the Lessor. Said notice should be delivered to the City of Miami, Department of Risk Management, 444 SW 2 Avenue, 9th Floor, Miami, FL 33130 with copy to City of Miami, Office of Asset Management, 444 SW 2 Avenue, 3rd Floor, Miami, FL 33130. (g) A current Evidence of Insurance .and Policy of Insurance evidencing the aforesaid required insurance coverage shall be supplied to the Office of Asset Management of the Lessor at the 26, 00- 926 commencement of the term of this Lease Agreement and a new Evidence and Policy shall be supplied at least twenty (20) days prior to the expiration of each such policy. Insurance policies required herein 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 the Lessor or by any of its representatives, which indicates less coverage than required, does note onstitute a waiver of the Lessee's obligation to fulfill the insurance requirements herein. In the event the Lessee shall fail to procure and place such insurance, the Lessor may, but shall not be obligated to, procure and place same, in which event the amount of the premium paid shall be paid by the Lessee to the Lessor as Additional Payments 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 the Lessor. Failure to pay such amount within the time frame provided shall constitute an Event of Default. The Lessee's failure to procure insurance shall in no way release the Lessee from its obligations and responsibilities as provided herein. 13.3 Damage Or Loss To Lessee's Property The Lessor shall not be liable for injury or damage which may be sustained to the Subject .Property or sustained by a person, goods, wares, merchandise or other property .of the Lessee, or the Lessee's employees, agents, contractors, invitees, and guests or of any other person in or about the Subject Property caused.by or resulting from any peril whatsoever which may affect the Subject Property, including, without limitation, fire, steam, electricity, gas,water, rain or theft which may leak or flow from or into any part of the Subject Property, or from the breakage, leakage, obstruction or other defects of the pipes, sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures of the Subject Property, or from hurricane or any act of God or any act of negligence of any user of the facilities or occupants of the Subject Property or any person whomsoever, including the Lessor, its officers, employees or agents, whether such damage or injury results from conditions arising upon the Subject Property or upon other portions of the Subject Property or from other sources. 27 ®0- 926 ARTICLE XIV DAMAGE AND DESTRUCTION 14.1 Destruction of Subject Property If.during the Lease Term or any extension hereof, the Subject Property shall be damaged by fire or other casualty, Lessee shall be responsible for filing the necessary claim with the insurance company. Upon receipt of the insurance proceeds, Lessee shall endorse such payment and furnish same to the Lessor for deposit in Lessor's Deposit Refundable Account. Lessee shall within ninety (90) days of receipt of such insurance proceeds, commence and continue to repair or replace the Subject Property to substantially the same condition or better that existed prior to such fire or other casualty. It shall be the responsibility of the Lessee to ensure sufficient proceeds are received to cover the cost of such repair or replacement.. The Lessee shall further be responsible for payment of any deductible, co -payment and/or any difference .in the cost of the repair or replacement and insurance proceeds received. In the event insurance proceeds, co -payment and deductible are inadequate to complete the repairs or replacement, Lessee shall within ninety (90) days after the date of. such damage provide written notice to Lessor of its option to either repair or replace at Lessee's sole cost and expense, in which case this Lease Agreement shall remain in full force and effect, or not repair or replace, in which event the Lease Agreement shall terminate as of the date of such notice to Lessor. If Lessee terminates this Lease, all insurance proceeds payable shall thereupon be paid directly to, and retained solely by Lessor. In the event the repairs or replacement are performed at a cost which is less than the insurance proceeds available, the Lessee shall deposit said funds in its account to be used as reserves for replacement. Lessor shall not be liable for any inconvenience or annoyance to Lessee or injury to Lessee's operations resulting in any way from such casualty damage or repair thereof. Upon any termination of this Lease Agreement under any of the provisions of this Article XIV, Lessee and Lessor shall each be released thereby from any further obligations hereunder accruing after the effective date of such termination, except that such release shall not apply to.any sums then accrued or due, or to Lessee's obligations regarding Surrender of the Subject Property and Hazardous Materials; and at such time the remaining balance of the Security Deposit, less any sums Lessor is entitled to deduct, shall be returned to Lessee. Lessee understands that Lessor will not carry insurance of any kind on the Subject Property or improvements thereon, or on Lessee's furniture, furnishing or on any fixtures or equipment, inventory 28 00-. 926 or other personal items under the provisions of this Lease, that Lessor shall not be obligated to repair any damage thereto or replace the same and that Lessee shall not be entitled to any compensation from Lessor for loss of the same or for loss of the use of the whole or any part of the Subject Property, or any inconvenience, interruption or annoyance occasioned to Lessee or its operations by such damage, repair or replacement. ARTICLE XV COVENANT AGAINST WASTE AND INSPECTION 15.1. Waste Except as otherwise permitted by this Lease Agreement, the Lessee covenants not to do or suffer any demolition, waste or damage, disfigurement or injury to the Subject Property or the Leasehold Improvements or any part of it. The provisions of this Section 19.1 shall not apply to any demolition or disfigurement involved with repairs, renovations, upgrading or new construction at the Subject Property. 15.2 Inspection of Subject Property Lessor, its agents, employees and authorized representatives may enter the Subject Property at any time in response to an emergency, and at reasonable times as Lessor deems necessary to, incident to, or connected with the performance of Lessor's duties and obligations hereunder or in the exercise of its rights and functions. ARTICLE XVI PAYMENT OF IMPOSITIONS 16.1 Special Assessments And Taxes The Lessee is performing a public service that could properly be performed by the Lessor and therefore the Subject Property should be exempt from ad valorem taxes. The Parties acknowledge that the common objective of the Parties to provide community recreational and educational programs and activities may be best achieved through this joint and concerted action of the Parties. Notwithstanding the above, in the event any Imposition is imposed,the Lessee agrees to pay or cause to be paid, all Impositions before any fine, penalty or interest is added for nonpayment. If by law any Imposition is payable or may, in the case of taxes, at the option of the taxpayer be paid in installments (whether or not interest shall accrue on the unpaid balance of the Imposition), the 29 00- 926 Lessee may pay the same (and any accrued interest on the unpaid balance of the Imposition), in installments before any fine, penalty, interest or cost is added for the nonpayment of any installment and interest. Any Imposition relating to a fiscal period of the taxing authority, a part of which period is included before the Possession Date and part of which is included after the Possession Date shall be adjusted as between the Lessor and the Lessee as of the commencement of the Lease Term, so that the Lessee shall pay that portion of the Imposition attributable to that part of the fiscal period included in the Lease Term, and the Lessor shall pay the remainder, if applicable. Any Imposition relating to a fiscal period of the taxing authority, a part of which period is included within the Lease Term and a part of which is included in a period of time after Lease Term shall be adjusted as between the Lessor and the Lessee as of the termination of the Lease Term, so that the Lessee shall pay that proportion of the Imposition attributable to that part of the fiscal period included in the term of this Lease, and the Lessor shall pay the remainder, if applicable. The Lessee, at its sole cost and expense, may apply for a total or partial tax exemption if eligible. 16.2 Appealing Ad Valorem Taxes In the event the Provider appeals an ad valorem tax or the assessment value, the Provider shall immediately notify the City of its intention to appeal said tax and, if requested by City, shall furnish and keep in effect a surety bond of a responsible and substantial surety company reasonably acceptable to the City, or other security reasonably satisfactory to the City, in an amount sufficient to pay.one hundred percent of the contested tax with all interest on it and costs and expenses, including reasonable attorneys' fees, to be incurred in connection therewith. The Provider shall provide such surety bond or other form of security as may be satisfactory to the City in the event the Provider appeals any such tax for the purpose of obtaining exempt status. 16.3 Proof of Payment Within thirty (30) days after the date whenever any Imposition is paid by Lessee, upon request by Lessor, the Lessee shall furnish to Lessor official receipts of the appropriate taxing authority, photocopies or other proof satisfactory to the Lessor, evidencing the payment. 30 00— 926 ARTICLE XVII EMINENT DOMAIN 11.1 Eminent Domain (a) Permanent Taking *x If the whole or portion of the Subject Property is taken under power of eminent domain or sold, transferred or conveyed in lieu thereof, and such taking, affects the primary purpose of this Lease Agreement as outlined in Section 3.2 hereof, either Lessor or Lessee shall have.the right to terminate this Lease Agreement as of the earlier of the date of vesting of title or the date possession is taken by the condemning authority; such right shall be exercised by the giving of written notice to the other party on or before said date. Lessor shall receive the entire award which may be made in such taking or condemnation and Lessee hereby assigns to Lessor. any and all rights of Lessee now or hereafter arising in or to the same whether or not attributable to the value of the unexplored portion of.this Lease. Lessor agrees to place the award proceeds received for the building in escrow which fimds will be used to build a similar building at a location in the City of Miami with priority given to locationsin the Overtown area. Proceeds received for the land shall be used in the manner Lessor, at its sole discretion, deems fit. The Lessor shall consult with the Lessee regarding the location of the new building. The Lessor shall not be required to expend funds in excess of the amount of the award. In this regard, the Lessor's construction of a new building may not result in a building the same as the one being replaced. To the extent legally permissible, if this Lease Agreement is terminated as a result of condemnation, the Parties shall enter into a new lease agreement for the new building to provide for continued operation of Lessee's programs at the new building site under the same terms and conditions contained in this Lease Agreement, as may be modified by the mutual consent of the Parties. In' the event the award is insufficient to build a new building, Lessor shall consult with the Lessee to identify a parks and recreation project that the funds can be used for. It is the intent of the parties that the proceeds received from the building be used for the purpose of benefiting the same persons intended to benefit under this Lease Agreement. The Lessee agrees that the Lessor shall make the final decision as to any new building location or identification of a parks and recreation project as provided for above. In the event this Lease Agreement is not terminated by Lessor or Lessee as provided above, or if such taking, or sale, transfer or conveyance in.lieu thereof, does not affect the primary purpose of this Lease, then this Lease Agreement shall automatically terminate as to the portion of the Subject Property so taken as of the earlier of.the date of vesting of title' 31 00- 900 or the date possession is taken by the commencing authority. If any part of the Subject Property is taken and if such part affects Lessor or Lessee's ability to perform any covenant contained in this Lease, then the respective party shall upon such taking be relieved of such covenant. Lessee hereby waives any and all rights it might otherwise have to terminate this Lease Agreement or to any condemnation proceedings under any statutes, laws, or ordinances in the State of Florida. Lessor shall restore the remaining portion of the Subject Property, to the extent practical, to render it reasonably suitable for the primary purpose of this Lease. Lessor shall not be obligated to expend any amount greater than the award for the restoration. (b) Temporary Taking In the event of temporary taking of all or any portion of the Subject Property for a period of thirty (30) days or less, then this Lease Agreement shall not terminate. Lessor shall be entitled to receive the entire award made in connection with any such temporary taking. ARTICLE XVIII ASSIGNMENTS AND SUBLETTING 18.1 Assignment and Subletting of Subject Property This Lease is not assignable. Further, the Lessee shall not, at any time during the Lease Term of this Lease Agreement, mortgage, pledge or otherwise encumber this Lease Agreement, the term, or any interest hereunder; without the prior written approval of the City Manager, which approval may conditioned or withheld, for any or no reason whatsoever, at his sole discretion. 18.2 Event of Bankruptcy If this Lease Agreement is assigned to any person or entity pursuant to the provision of the United States Bankruptcy Code, as the same may be amended from time to time (hereinafter 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 the Lessor, shall be and remain the exclusive property of the Lessor, and shall not constitute the property of the Lessee or the estate of the Lessee within the meaning of the Bankruptcy Code. -Any and all monies or other considerations constituting the Lessor's property under this Section not paid or delivered to the Lessor shall be held in trust for the benefit of the Lessor and shall be promptly paid or delivered to the Lessor. Any person or entity to which this Lease Agreement is assigned pursuant to the provisions of the Bankruptcy Code shall 32 00- 926 be deemed without further act or deed to have assumed all of the obligations arising under this Lease Agreement on and after the date of such assignment. ARTICLE XIX OWNERSHIP OF IMPROVEMENTS 19.1 Ownership of Improvements As of the Possession Date and throughout the Lease Term, title to the Subject Property, all buildings and improvements thereon shall be vested in Lessor. Furthermore, title to all Leasehold Improvements and Alterations made in or to the Subject Property during the Lease Term, whether or not by or at the expense of Lessee, shall, unless otherwise provided by written agreement, immediately upon their completion become the property of Lessor and shall remain and be surrendered with the Subject Property. Any furniture, furnishing, equipment or other articles of movable Personal Property owned by the Lessee and, located in the Subject Property, shall be and shall remain the property of the Lessee and may be removed by it at any time during the Lease Term so long as the Lessee is not in default of any of its obligations under this Lease Agreement and the same have not become a fixture, and so long as such does not materially affect the Lessee's ability to use the Subject Property and conduct its operations as provided herein. However, if any of the Lessee's property is removed and such removal causes damage to the Subject Property, the Lessee shall repair such damage at its sole cost and expense in accordance with the provisions of the Section of this Lease Agreement entitled "Personal Property". Any property belonging to the Lessee and not removed by the Lessee at the expiration or earlier termination of the Lease Agreement, shall be deemed to be abandoned by the Lessee, and the Lessor may keep or dispose of such property at the Lessee's sole cost and expense. The Lessee will reimburse the Lessor for any costs associated with such abandoned property within fifteen (15) days of after receipt of written notice. At the expiration ofthe Lease Term hereof, the Lessee shall deliver to the Lessor the keys and combination to all safes, cabinets, vaults, doors and other locks left by the Lessee on the Subject Property. 33 ®�- 926 0 01 ARTICLE XX SIGNAGE 20.1 Si ns Lessee shall be permitted to install signage similar to that located at similar type facilities subject to Lessee obtaining the prior written approval of the Director, which approval shall not be unreasonably withheld or delayed. Lessee must further obtain approval from all governmental authorities having jurisdiction, and must comply with all applicable requirements set forth in the City of Miami Code and Zoning Ordinance. Upon the expiration or earlier termination of this Lease, for any reason, Lessee shall, at its sole cost and expense, remove and dispose of all signs located on the Subject Property. ARTICLE XXI ENVIRONMENTAL LIABILITY 21.1. Definition of Terms. For purposes of this Article XXI, the following terms shall have the meaning attributed to them in this Section 20.1: (a) "Hazardous Materials" means any toxic or hazardous substance, material, or waste, and any other contaminant, pollutant or constituent thereof, whether liquid, solid, semi-solid, sludge and/or gaseous, including without limitation, chemicals, compounds, pesticides, petroleum products including crude oil and any fraction thereof, asbestos containing materials or other similar substances or materials which are regulated or controlled by, under or pursuant to any federal, state or local statutes, laws, ordinances, codes, rules, regulations, orders or decrees, not limited to, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended by the Superfund Amendment and Reauthorization Act of 1986 ("SARA"), 42 U.S.C. §9601, et seq. (hereinafter collectively "CERCLA"); the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976 ("RCRA") and subsequent Hazardous and Solid Waste Amendments of 1984, also known as the 1984 "RCRA" amendments, 42 U.S.C. §6901 et seq.; the Hazardous Material Transportation Act, 49 U.S.C. §1801, et seq.; the Clean Water Act, as amended, 3.3 U.S.C. §1311, et seq.; the Clean Air Act, as amended, 42 U.S.C. §7401-7642; Toxic Substance Control Act, as amended, 15 U.S.C. §2601 et seq.; the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"), as amended, 7 U.S.C. §136-136y; the Emergency Planning and Community Right -to -Know Act of 1986 ("EPCRTKA" or "EPCRA"), as. 34 0®e 9ZG amended, 42 U.S.C. §11001, et seq. (Title III of SARA); the Occupational Safety and Health Act of 1970 ("OSHA"), as amended, 29 U.S.C. §651, et seq.; any similar state statute, including without limitation, and by way of example, Chapters 252, 255, 376, 403 or 442, Florida Statutes, as amended; or in the regulations implementing such statutes, or which has been or shall be determined at .any time by any agency or the court to be a hazardous or toxic substance regulated under any other Environmental Laws; or any substance or material that is or becomes regulated by any federal, state, or local governmental authority. (b) "Environmental Laws" shall include, but shall not be limited to, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended by the Superfund Amendment and Reauthorization Act of 1986 ("SARA"), 42 U.S.C. §9601, et seq. (hereinafter collectively "CERCLA"); the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976 ("RCRA") and subsequent Hazardous and Solid Waste Amendments of 1984, also known as the 1984 "RCRA" amendments, 42 U.S.C. §6901 et seq.;, the Hazardous Material Transportation Act, 49 U.S.C. §1801, et seq.; the Clean Water Act, as amended, 33 U.S.C. §1311, et seq.; the Clean Air Act, as amended, 15 U.S.C. §2601 et seq.; the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"), as amended, 7 U.S.C. §136-136y; the Emergency Planning and Community Right -to -Know Act of 1986 ("EPCRTKA" or "EPCRA"), as amended, 42 U.S.C. §11001, et seq. (Title III of SARA); the Occupational Safety and Health Act of 1970 ("OSHA"), as amended, 29 U.S.C. §651, et seq.; any similar state statute, including without limitation Chapters 252, 255, 376, 403, and 442, Florida Statutes, as amended; and the regulations promulgated thereunder, and any other local laws or regulations, including, but not limited to Chapter 24, Environmental Protection, of the Code of Metropolitan Dade County, Florida, as all of the foregoing may be amended, modified, supplemented, superseded or replaced at any time during the Lease Term, that governor relate to: (1) The existence, cleanup and/or remedy of contamination of Subject Property; (2) The protection of the environment from spilled, deposited or otherwise emplaced contamination; (3) The control of hazardous or toxic substances or wastes; or (4) The use, generation, discharge, transportation, treatment, removal or recovery of Hazardous Materials. 35 0p 926 (c) "Environmental Activity" shall mean any activity on the Subject Property which involves the handling, use, or disposal of Hazardous Materials or which is subject to regulation under any Environmental Law. (d) "Environmental Record" shall mean any document, correspondence, report, assessment, analytical result, governmental approval, or other record concerning any Hazardous Materials, in compliance with Environmental Laws, Environmental Activity or any other environmental matter pertaining to the Subject Property in Lessor's possession. 21.2 Lessee Inspection. (a) Lessee, at its sole cost and expense, shall.have the right to conduct an environmental inspection of the Subject Property (the "Audit"). If the Audit reveals (i) any* violations of any. Environmental Laws with respect to any Hazardous Material present or any Environmental Activity conducted or permitted at the Subject Property; (ii) any present or contingent liability which may attach or be attributed to a prior owner, lessee, sublessee or operator of the Lessor of the Subject Property; or (iii) any significant risk to the health or safety of occupants of the Subject Property arising from any Hazardous Materials present or Environmental Activity conducted or permitted at the Subject Property (the foregoing conditions are hereinafter referred to as "Environmental Conditions"), then Lessee shall deliver to Lessor a notice (the "Audit Notice") of each Environmental Condition affecting the Subject Property, together with a copy of the Audit Report and an estimate of the cost and time period necessary to remedy any such Environmental Condition. The Lessee and Lessor shall have fifteen (15) days from the date the Lessor receives the Audit Notice to negotiate a mutually agreeable remediation protocol. In the event the Lessee and Lessor are unable to reach agreement with respect thereto within the fifteen (15) day period provided herein, either party shall have the right to cancel this Lease Agreement by written notice to the other party whereupon (i) all property data and all studies, analysis, reports and plans respecting the Subject Property delivered by Lessor to Lessee or prepared by or on behalf of the Lessee shall be delivered by Lessee to the Lessor; and then (ii) except as otherwise hereafter provided in this Section, the Parties shall thereupon be relieved of any and all further responsibility hereunder and neither party shall have any further obligation on behalf of the other. 36 06- 926 (1) In the event Lessee'senvironmental inspections of the Subject Property are acceptable to Lessee, in Lessee's sole judgment, then Lessee shall deliver to Lessor the Environmental Condition Acceptance Notice. (2) Upon Lessee performing the Audit of the Subject Property and either (i) accepting the environmental status of the Subject Property, or (ii) remediating any Environmental Condition(s) at the Subject, Property as may be mutually agreed to as provided. above, Lessee shall provide Lessor with notice pursuant to this Article XXI, thereby agreeing to take the+Subject Property "AS IS" without any further representations from Lessor as to the condition or suitability of the Subject Property for the purpose of this Lease Agreement as set forth in Section .3.2 of this Lease. (b) Release. Lessee, on behalf of itself and its heirs, successors and assigns, hereby waives, releases, acquits and forever discharges Lessor, officials and employees, agents, representatives and any other person acting on behalf of Lessor, and the successors and assigns of any of the preceding, of and from any and all claims, actions, causes of action, demands, rights, damages, costs, expenses or compensation whatsoever, direct or indirect, known or unknown, foreseen or unforeseen, which Lessee or any of its heirs, successors or assigns now has or which may arise in the future on account of or in any way related to or in connection with Hazardous Materials or Environmental Condition(s), in, at, on, under or related to the Subject Property, or any violation or potential violation of any Environmental Law applicable thereto. 21.3 . Lessee Environmental Covenant. (a) Throughout the Lease Term of this Lease Agreement, Lessee shall not undertake or, permit any Environmental Activity other than (i) in compliance with all Environmental Laws and (ii) in such manner as not to present a significant present or potential health risk to Lessor, its agents, employees and guests. If Lessee shall breach the covenant in this Section, then in addition to any other rights and remedies which may be available to Lessor under this Lease Agreement or otherwise at law or in equity, Lessor may require Lessee to take all actions, or to reimburse Lessor for the costs of any and all actions taken by Lessor, as are necessary to comply with all Environmental Laws and' to abate any significant present or potential health risk with respect to any Environmental Activity conducted or permitted or any 37 00— 926 0 , 0 Hazardous Material present or potential health risk with respect to any Environmental Activity conducted or permitted or any Hazardous Material present at the Subject Property. Lessee's obligation under this Section shall survive the expiration or earlier termination of this Lease Agreement for a period of one (1) year or such other time frame established pursuant to Section 21.8. (b) Permitted Hazardous Materials. Lessee shall not cause, permit or suffer any Hazardous Materials to be brought upon, treated, stored, disposed of, discharged, released, produced, manufactured, generated, refined or used upon, about or beneath the Subject Property or any portion thereof by Lessee, its agents, employees, contractors or invitees other than those Hazardous Materials incidental to and customarily present at educational and recreational facilities in the State of Florida (the "Permitted Hazardous Materials"). The Permitted Hazardous Materials may only be brought upon, kept and used in or about the Subject Property by such parties in strict compliance with all Environmental Laws and applicable handling, storage, use and disposal procedures (the "Approved Handling Procedures"). 21.4. Remediation In the event Lessor discovers any breaches under this Lease Agreement or any violations of Environmental Laws pursuant to the foregoing, without limitation: (i) any contamination of the Subject Property from Hazardous Materials caused or permitted to be on the Subject Property by Lessee, its agents, employees, contractors, licensees or invitees (such parties being collectively referred to as "Lessee" for purposes of this Section 21.4); (ii) a violation of any Environmental Laws, or the non- compliance with any Approved Handling Procedures, with respect to any Hazardous Materials or any Environmental Activity conducted or permitted by Lessee at the Subject Property; or.(iii) a breach by Lessee of its covenants and obligations under this Lease Agreement, then Lessee shall immediately cease all operations on the Subject Property involving the use of Hazardous Materials found not to be in compliance with Environmental Laws or Approved Handling Procedures until such operations are brought into compliance therewith. To the extent of any Hazardous Material contamination of the Subject Property or other properties caused or permitted by Lessee, Lessee shall promptly commence and pursue to completion, at Lessee's sole cost and expense, a remediation program with respect to such Hazardous Materials; provided, however, Lessor may at its option (but in no event shall be obligated to) elect to conduct the remediation program at Lessee's sole cost and expense, the design and scope of 38 which shall be determined solely by Lessor and Lessor's environmental consultants and any pertinent governmental agencies. 21.5 Closure If any Environmental Laws or any permits, variances, licenses or similar entitlements, authorizations or approvals involve or contain closure or post -closure requirements or conditions, Lessee shall comply with and satisfy all such requirements and conditions prior to the expiration or earlier termination of this Lease Agreement, and in no event later than Lessee's vacating the Subject Property. Lessee shall, upon Lessor's request, provide Lessor with security acceptable to the Lessor to secure Lessee's obligations to comply with and satisfy such closure and post -closure requirements and conditions. If Lessor determines that Lessee will not or will be unable to comply with and satisfy such requirements and conditions prior to the expiration or earlier termination of this Lease Agreement, or prior to Lessee's vacating the Subject Property, Lessor may, -but shall not be obligated to, comply with or satisfy such requirements and conditions on Lessee's behalf and may apply the security provided by Lessee for such purposes. Any such action by Lessor shall not be deemed a waiver or excuse of any default by Lessee in the performance of its obligations under this Article XXI, but shall be in addition to and not in lieu of any other rights or remedies available to Lessor at law or in equity with respect to Lessee's default in such obligations. 21.6 Environmental Liens. Lessee shall promptly notify Lessor as to any liens threatened or attached against the Subject Property pursuant to any Environmental Law. In the event that such a lien is filed against the Subject Property, then Lessee shall, within thirty (30) days from the date that the lien is filed against the Subject Property, and at any rate prior to the date any governmental agency or other party commences proceedings to foreclose on such lien, either: (a) pay the claim and remove the lien from the Subject Property; or (b) furnish either (i) a bond satisfactory to Lessor in the amount of the claim out of which the lien arises, (ii) a cash deposit,in the amount of the claim out of which the lien arises, or (iii) other security satisfactory to the Lessor in an amount sufficient to discharge the claim out of which the lien arises. 39 OO- 926 21.7 Environmental Indemnity. (a) Indemnity. With respect to the presence of any Hazardous Materials in, at, on, under or about the Subject Property or the threatened releases of any Hazardous Materials in, at, on, under or about the Subject Property, or any Environmental Activity conducted or permitted by Lessee or any other party on the Subject Property during the Lease Term of this Lease Agreement or holdover period, or any violation of any Environmental Laws pertaining to the condition of the Subject Property or any i Environmental Activity thereon to the extent caused by Lessee at any time or caused bylessee's officers, i employees, agents, subcontractors, licensees or invitees during the Lease Term of the Lease Agreement, or the breach of any warranty or covenantor the inaccuracy of any representation of Lessee contained in this Lease Agreement, and subject to other defenses allowed by law, Lessee hereby indemnifies, defends and holds harmless Lessor from and against any suits, actions, legal or administrative proceedings, demands, claims, liabilities, fines, penalties, losses, injuries, damages, penalties, expenses or costs, including interest and reasonable attorneys' fees for attorneys of Lessor's choice, costs ,of defense (direct and on appeal), settlement or judgment, of any and every kind whatsoever paid, incurred or suffered by, claimed or. assessed against Lessor under any Environmental Law, without limitation;, and any and all statutes, laws, ordinances, codes, rules, regulations, orders or decrees, or regulation with respect to or imposing liability including strict liability, or other standards of conduct concerning any Hazardous Materials or Environmental Activity, by any person or entity or governmental department or agency for, with respect to, or as direct or indirect result of the presence in or under, or the transportation, handling, management, storage, spill, escape seepage, leakage, spillage, discharge, emission, or release to/from the Subject Property of any Hazardous Material, which is in any way connected with any i eath or injury to any person, destruction or damage to any property, potential or actual impacts, contamination or adverse effects on the environment, violation of Environmental Law, or any loss to the Lessor occasioned in any way by Hazardous Materials or any Environmental Activity on the Subject Property caused by (i) Lessee's breach of any term or provision of this Lease Agreement; or (ii) the negligent or intentional activities of the Lessee before, during or after Lessee's occupancy of the Subject Property. (b) Lessee's Direct Obligation. This indemnity specifically includes the direct obligation of Lessee to perform, at its sole cost and expense, any remedial or other activities required, ordered, recommended or requested.by any agency or government official or otherwise necessary to avoid or minimize injury or liability to any person, or to prevent the spread of pollution, however it came to be 40 00 9�6 located thereon (hereinafter, the "Remedial Work"). Lessee shall perform all such Remedial Work in its own name in accordance with Environmental Laws. (c) Lessor's Option. Without waiving its rights hereunder, Lessor may, at its option, perform such remediation as described herein and thereafter seek reimbursement for the costs thereof from Lessee. Lessee shall permit Lessor access to the Subject Property to perform such remedial activities. (d) Reimbursement. Whenever Lessor has incurred costs described in this Section, Lessee shall, within thirty (30) days of receipt of notice thereof, reimburse Lessor for all such expenses together with interest from the date of expenditure at prime rate. (e) Survival of Indemnity Provisions. Lessee's obligations hereunder shall survive the expiration or earlier termination of the Lease Term of the Lease Agreement, the discharge of all other obligations owed by the Parties to each other, and any transfer of title to the Subject Property (whether by sale, foreclosure, deed in lieu of foreclosure or otherwise) for a period of no more than one (1) year or such other time frame established pursuant to Section 21.8. (f) Successors and Assigns. Subject to Article VIII pertaining to the transfer rights of the Parties, this Article XX shall be binding upon and inure to the benefit of the Parties hereto and their respective executors, administrators, legal representatives, heirs, successors and assigns. 21.8 Environmental Assessment at End of Lease Term. (a) At any time within the six (6) month period prior to the expiration of the Lease Term of the Lease Agreement, or upon earlier termination of the Lease Agreement, Lessee, upon written request by Lessor, shall cause to be prepared at it sole cost and expense an environmental audit (the "End -Term Audit") of the Subject Property and the Leasehold Improvements to determine the environmental condition of the Subject Property and the Leasehold Improvements. The End -Term Audit shall be completed by an environmental consultant of Lessee's choice with the approval of the City Manager, which approval shall not be unreasonably withheld. If the End -Term Audit indicates the presence of Hazardous Materials or any Environmental Condition not present or indicated in the Audit, then Lessee and Lessor shall together determine whether the presence of such Hazardous Materials or Environmental Condition was caused by Lessee or some other third party. If the contaminator is the Lessee, including its agents, officials, employees, contractors, 41 00"' 926 subcontractors, licenses, or.invitees, the Lessee shall pay or cause to be paid all costs associated with the required remediation and clean-up. (b) In the event that it is determined that the Lessee, including its agents, officials, employees, contractors, subcontractors, licensees or invitees, is the contaminator, but that the presence of such new Hazardous Materials was caused by the acts or negligence -of a third party, the Lessor and Lessee shall fully cooperate with each other in all matters relating to the identification and clean-up responsibilities of such third party contaminator and its clean-up responsibilities. ARTICLE XXII DEFAULT PROVISIONS 22.1 Events of Default - Lessee. Each of following events is defined as an Event of Default: (a) The failure of the Lessee to pay any Annual Fee or Additional Payments, when due and the continuance of the failure for a period of thirty (30) days after notice in writing from the Lessor to the Lessee; (b) The failure of the Lessee to perform any of the other covenants, conditions and agreements of this Lease Agreement on the part of the Lessee 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 the Lessor contends that the Lessee has failed to perform any of the covenants, conditions and agreements) from the Lessor to the Lessee, unless with respect to any default which cannot be cured within thirty (30) days, the Lessee, or any person holding by, through or under the Lessee, in good faith, promptly after receipt of written notice, shall have commenced and continued diligently to reasonably prosecute all action necessary to cure the default; (c) The failure to maintain tax-exempt status under section 501 (c) (3) of the Internal Revenue Code of 1986, as amended; (d) The Property ceases to be used for the'purposes described in Section 3.2 above. (e) The filing of an application by the Lessee: (i) for a consent to the appointment of a receiver, trustee or liquidator of itself or all 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 42 00926 allegations of, or its consenting to, or defaulting in answering, a petition filed against it in any bankruptcy proceeding; or (f) The .entry of an order, judgment or decree by any court of competent jurisdiction, adjudicating the Lessee 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 sixty (60) consecutive days, or if this Lease Agreement is taken under a writ of execution. In the event this Lease Agreement is assumed by or assigned to a trustee pursuant to the provisions of the US Bankruptcy Code, as the same may be amended from time to time, the trustee shall cure any default under this Lease Agreement and shall provide the Lessor with adequate assurance _of future performance of all of the terms and conditions of this Lease Agreement. If the trustee does not cure such default and provide such adequate assurance within the applicable time periods provided by the Bankruptcy Code, then this Lease Agreement shall be deemed rejected automatically and the Lessor shall have the right immediately to possession of the Subject Property and shall be entitled to all remedies provided by the Bankruptcy Code for damages for breach or termination of this Lease Agreement. 22.2 Remedies in Event of Lessee's Default The Lessor may treat any one or more of the Event(s) of Default as a breach of this Lease Agreement, and thereupon at its option, without further notice or demand of any kind to the Lessee or any other person, the Lessor shall have, in addition to every other right or remedy existing at law or in equity, do any one or more of the following: (a) _ Elect to cancel and terminate this Lease Agreement and dispossess the Lessee by giving a three (3) day notice of such election to the Lessee, and reenter the Subject Property, without the necessity of legal proceedings. In the event of such termination, the Lessor shall have the right to seek any damages sustained by it by reason of the Lessee's actions or inactions and the resulting termination of this Lease Agreement. Upon termination of this Lease Agreement, the Lessee shall immediately cease all operations at the Subject Property and surrender the Subject Property in accordance with the provisions contained herein. (b) Perform, on behalf of and at the expense of the Lessee, any obligation of the Lessee under this Lease Agreement which the Lessee has failed to perform, the cost of which performance by the Lessor, together with interest thereon at the rate of twelve percent (12%) from the date of such expenditure, shall be deemed Additional Payments and shall be payable by the Lessee, to the Lessor upon 43 00- 926 demand. The Lessee agrees that the Lessor shall not be liable to the Lessee for any damage resulting to the Lessee as a result of such action. (c) Exercise any other legal or equitable right or remedy, which it may have under this Lease Agreement, at law or in equity. Notwithstanding the provisions of clause (b) above and regardless of whether an Event of Default shall have occurred, the Lessor may exercise the remedy described in clause (b) without any notice to the Lessee if the Lessor, in the exercise of its good faith judgment, believes it would be injured by failure to take rapid action or if the unperformed obligation of the Lessee constitutes an emergency. All of the remedies of the Lessor shall be cumulative and enforcing one or more of the remedies herein provided upon an Event of Default shall not be deemed or construed to constitute a waiver of such default, or an election of remedies. Any costs and expenses incurred by the Lessor in enforcing any of its rights or remedies under this Lease Agreement shall be deemed to be an Additional Payment and shall be repaid to the Lessor by the Lessee upon demand. 22.3 Repeated Defaults If more than twice during any twelve (12) month period during the Lease Term hereof, the Lessee fails to satisfy or comply with the same or substantially the same requirements or provisions under this Lease Agreement, (except where such repeated default arises from acts of God or results from causes or conditions not attributable, directly or indirectly, to the Lessee, its guests, employees, agents or others within the Lessee's control), then at the Lessor's election, the Lessee shall not have any right to cure such repeated default. In the event of the Lessor's election not to allow a cure of a repeated failure to satisfy or comply, the Lessor shall have all of the rights and remedies provided in this Lease Agreement relative to an Event of Default. 22.4 Automatic Termination of Lease: This Lease shall terminate automatically in the event that the Subject Property ceases to be used for the purposes described in Section 3.2 of this Lease, and such improper use is not discontinued within fifteen (15) days after receipt of written notice from the Lessor to Lessee, unless with respect to any cessation of use which cannot be corrected within fifteen (15) days, the Lessee, or any person holding by, through or under the Lessee, in good faith, promptly after receipt of written notice, shall have 44 00- 926 commenced and continued diligently to reasonably prosecute all action necessary to correct any improper use. ARTICLE XXIII NOTICES 23.1 Notice All notices or other communications which shall or may be given pursuant to this Lease Agreement 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. NOTICE TO LESSOR: City of Miami City Manager 444 S W 2 Avenue, 10th 'Floor Miami, Florida 33130 WITH COPY TO: City of Miami Office of Asset Management 444 SW 2 Avenue, 3rd Floor Miami, FL 33130 City of Miami City Attorney 444 SW 2 Avenue, 9th Floor Miami, FL 33130 NOTICE TO LESSEE: Overtown Youth Center ARTICLE XXIV HOLDING OVER 24.1 Holding Over The Lessee shall vacate the Subject Property upon the expiration or earlier termination of this Lease Agreement. The Lessee shall reimburse the Lessor for and indemnify the Lessor against all damages. incurred by the Lessor from any delay by the Lessee in vacating the Subject Property. If the 45 QO 926 Lessee remains in possession of all or any part of the Subject Property after the expiration of the Lease Term hereof, with or without the express or implied consent of the Lessor, such occupancy shall be from month-to-month only and not a renewal hereof or an extension for any. further term, subject to all conditions, provisions and obligations of this Lease Agreement in effect on the last day of the last Lease Term hereof, except that the month-to-month tenancy will be terminable on fifteen (15) days notice given. at any time by either party. ARTICLE XXV , UNAVOIDABLE DELAY 25.1 Unavoidable Delay(s) For the purpose of any of the provisions of this Lease, neither the Lessor nor the Lessee, as the case may be, nor any successor in interest, shall be considered in breach of or in default of any obligations under this Lease, including but not limited to the preparation of the Subject Property for development, the performance of the conditions precedent to Lessee taking possession of the Subject Property, the commencement and completion of construction of the Leasehold Improvements, or progress in respect thereto in the event of an Unavoidable Delay(s), in accordance with the provisions of Section 25.2 below. 25.2 Manner of Notice of Unavoidable Delay(s) and Conditions With Respect to Performance of Obligations In the event of Unavoidable Delay(s), the time for performance of obligations, covenants, and/or agreements which are affected by the Unavoidable Delay(s) shall be extended for the period of time of the Unavoidable Delay(s) or for such period of time as may be necessary under the circumstances, provided that the Party seeking the benefit of the provisions of this Section shall: (a) As soon as reasonably possible, but no later than thirty (30) days after such Party shall have become aware of the Unavoidable Delay(s), give notice, in writing, to the other Party of the Unavoidable Delay(s), which notice shall specify which of the obligations, covenants, and/or agreements of this Lease Agreement the notifying Party is unable to perform at the time of such notice and how the Unavoidable Delay(s) has affected the Party's performance of such obligations, covenants, and/or agreements; dor g26 46 (b) As soon as reasonably possible, the Party claiming such Unavoidable Delay(s) shall commence and shall continue diligently the performance of such obligations, covenants, and/or agreements so delayed. ARTICLE XXVI MISCELLANEOUS PROVISIONS 26.1 Ingress And Egress Subject to rules and regulations, statutes and ordinances and terms of this Lease Agreement governing the use of the Subject Property, the Lessee, its employees, agents, contractors, invitees and guests shall have ingress and egress to and from the Subject Property. 26.2 Successors And Assigns This Lease Agreement shall be binding upon the Parties hereto, their heirs, executors, legal representatives, successors and assigns. 26.3 Surrender Of Subject Property Upon the expiration or earlier termination of this Lease Agreement by lapse of time or otherwise, the Lessee shall promptly and peacefully surrender and deliver possession of the Subject Property to the Lessor in accordance with the covenants herein contained. 26.4 Amendments The City Manager and the Lessee, by mutual agreement, shall have the right but not the obligation to amend this Lease Agreement. Such amendments shall be effective only when signed by the City Manager and the Lessee and shall be incorporated as a part of this Lease Agreement. The City Manager is authorized to amend or modify this Lease Agreement as needed. 26.5 Construction Of Lease Agreement This Lease Agreement shall be construed and enforced according to the laws of the State of Florida. 47 + 00- 926 26.6 Court Costs And Attorneys' Fees 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. 26.7 Waiver Of Jury Trial The Parties hereby knowingly, irrevocable, voluntarily and intentionally waive any right either may have to a trial by jury in respect of any action, proceeding, claim or counterclaim based on this Lease Agreement, or arising out of, under or in connection with this Lease Agreement or any amendment or modification of this Lease Agreement, or any other agreement executed by and between the Parties in connection with this Lease Agreement, 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 the Lessor and the Lessee entering into the subject transaction. 26.8 Severability If any provision of the Lease Agreement, or any paragraph, sentence, clause, phrase, or word, or the application thereof,. is held invalid, the remainder of the Lease .Agreement shall be construed as if such invalid part were never included herein and the Lease Agreement shall be and remain valid and enforceable to the fullest extent permitted by law. 26.9 . Waiver The acceptance of the Annual Fee or Additional Payments by the Lessor, with knowledge of any breach of this Lease Agreement by the Lessee or of any default on the part of the Lessee in the observance or performance of .any of the conditions, agreements or covenants of this Lease Agreement, shall not be deemed to be a waiver of any provision of this Lease Agreement. No waiver of any provision hereof shall be deemed to have been made unless such waiver is in writing and signed by the City Manager or the Lessee. The failure of either party to insist upon the strict performance of any of the provisions or conditions of this Lease Agreement shall not be construed as waiving or relinquishing in the future any such covenants or conditions but the same shall continue and remain in full force and effect. 48 00" aJP6 26.10 Captions The -captions contained in this Lease Agreement are inserted only as a matter of convenience and for reference and do not define, limit or prescribe the scope of this Lease Agreement or the intent of any provisions thereof. 26.11 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. 26.12 No Recordation The Lessee shall not record this Lease Agreement without the prior written consent of the Lessor. However, the City Manager may require that this Lease Agreement be recorded or a ".Short Form" memorandum of this Lease Agreement be executed by both Parties and recorded. 26.13 Agreement Preparation This Lease Agreement is the result of negotiations between the Parties and has been typed/printed by one party for the convenience of both Parties. The Parties agree that this Lease Agreement shall not be construed in favor of or against either of the Parties. 26.14 Conflict of Interest Lessee is aware of the conflict of interest laws of the City of Miami as set forth in Article 5, Conflicts of Interest, of Chapter 2 of the Code of the City of Miami, Florida, as amended, and agrees that it will fully comply in all respects with the terms thereof. 26.15 Award of Agreement Lessee warrants that it has not employed or retained any person employed by Lessor to solicit or secure this Lease Agreement and that it has not offered to pay, paid, or agreed to pay any person employed by Lessor any fee, commission, percentage, brokerage fee or gift of any kind contingent upon or resulting from the award of this Lease. 49 00— 9#� 0 0: ARTICLE XXVII QUIET ENJOYMENT 27.1 Quiet Enjoyment , Lessor covenants and agrees that so long as no default exists in the performance of Lessee's covenants and agreements contained herein, Lessee may peaceably and quietly hold and enjoy the Subject Property and all part thereof for that portion of the Lease Term, free from eviction or disturbance by Lessor or any person claiming under, by or through Lessor. ARTICLE XXVIII AFFIRMATIVE ACTION 28.1 Affirmative Action Lessee 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, Lessee shall submit a Statement of Assurance indicating that their business is in compliance with all relevant Civil Rights laws and regulations. 28.2 Nondiscrimination Lessee agrees that there will be no disc rim ination'against any person based upon race, religion, color, sex, ancestry, age, national origin, mental or physical handicap, in the use of the Subject Property and improvements thereof. It is expressly understood that upon a determination by a court of competent jurisdiction that discrimination has occurred, Lessor shall have the right to terminate this Lease. ARTICLE XXIX MINORITY PROCUREMENT 29.1 Minority/Women Business Utilization Lessee shall make every good faith effort to purchase/contract fifty-one (51%) of its annual goods and services requirements from Hispanic, Black and Women businesses/professionals 50 00- 026 registered/certified with the City of Miami's Office of Minority/Women Business Affairs. Such lists will be made available to Lessee at the time of the signing of the lease with the City of Miami and updates will be routinely provided by the Lessor's Office of Minority/Women Business Affairs. ARTICLE XXX ENTIRE AGREEMENT 30.1 Entire Agreement This Lease Agreement represents the total agreement between the Parties. All other prior agreements between the Parties, either verbal or written, are superseded by this Lease Agreement and are therefore no longer valid. ARTICLE XXXI APPROVAL BY OVERSIGHT BOARD. 31.1 Approval By Oversight Board The State of Florida has appointed an Emergency Financial Oversight Board (hereinafter the "Oversight Board") which is empowered to review and approve all pending City of Miami contracts. As a result, contracts shall not be binding on the Lessor until such time as they have been approved_ by the Oversight Board. Attestation of this Lease Agreement by the City Clerk shall constitute evidence of approval by the Oversight Board. 51®+ 9.26. I IN WITNESS WHEREOF, the Parties hereto have individually, through their proper officials, executed this Lease Agreement the day and year first herein above written. ATTEST: By: Walter J. Foeman Clerk STATE OF FLORIDA ) COUNTY OF DADE ) THE CITY OF MIAMI, a municipal corporation of the State of Florida By: Carlos A. Gimenez City Manage; The foregoing instrument was acknowledged before me this day of 2000, by Carlos A. Gimenez, as City Manager of the City of Miami, a municipal corporation of the State of Florida, on behalf of the corporation. He/she is personally known to me or has produced as identification and who did (did not) take an oath. Notary Public Signature Print Name of Notary Commission No. 52 0® 926 D ATTEST By: Print Name & Title WITNESSES: Witness Signature Print Name Witness Signature Print Name OVERTOWN YOUTH CENTER By: Print Name & Title STATE OF FLORIDA ) COUNTY OF DADE ) The foregoing instrument was acknowledged before me this day of , 2000, by of the Overtown Youth Center, a non- profit corporation of the State of Florida, on behalf of the corporation. He/she is personally known to me or has produced as identification and who did (did not) take an oath. Notary Public Signature Print Name of Notary Commission No. APPROVED AS TO FORM APPROVED AS TO INSURANCE AND CORRECTNESS REQUIREMENTS Bv: Alejandro Vilarello Mario Soldevilla Lessor's Attorney Risk Management 53 66_ 926 EXHIBIT A ]LEGAL DESCIPTION OF SUBJECT PROPERTY Lots 1, 2, 3, 4 and 5 and the East 25.' of Lot 6 Block 2 Sort's Subdivision (PB:B-27) Containing approximately 57,316 SF 00- 926 • POSSESSION DATE CERTIFICATE r� This Possession Date Certificate is entered into by Lessor and Lessee pursuant to Section 4.3 of the Lease. I) Definitions. In this certificate the following terms have the meanings given to them: Lessor: City of Miami Lessee: Overtown Youth Center, Inc. Lease: Lease Agreement dated 2000 between Lessor and Lessee. Subject Property: As legally described in Exhibit A attached to the Lease. 2) Confirmation of Possession Date: Lessor and Lessee confirm that the Possession Date of the Lease is 20_ and the expiration date of the Initial Tenn is 3) Acceptance of the Subject Property. Lessee accepted the Subject Property on Lessor and Lessee have executed this Possession Date Certificate as of the dates set forth below: ATTEST: BY: Walter J. Foeman Clerk STATE OF FLORIDA ) COUNTY OF DADE ) THE CITY OF MIAMI, a municipal corporation of the State of Florida By: Carlos A. Gimenez City Manager The foregoing instrument was acknowledged before me this day of , 20_, by Carlos A. Gimenez, as City Manager of the City of Miami, a municipal corporation of the State of Florida, on behalf of the corporation. He/she is personally known to me or has produced as identification and who did (did not) take an oath. Notary Public Signature Print Name of Notary Commission No. 0®- 996 11 TO FROM 1' CITY OF MIAMI, FLORIDA INTER -OFFICE MEMORANDUM The Honorable Mayor and Members DATE: FILE: of the City Commission OCT 10 ?000 SUBJECT: Lease Agreement between the City of Miami and Overtown Youth Center C REFERENCES: City M4anager ENCLOSURES: RECOMMENDATION: The administration recommends that the Miami City Commission adopt the attached Resolution authorizing the City Manager to execute a lease agreement (the "Agreement") with Overtown Youth Center, a non-profit corporation (the "Lessee"), for the leasing of approximately 31,263 sf of property located at approximately 1360 NW 3 Avenue (the "Property") for the purpose of providing public educational and recreational opportunities to inner city youth and their families. BACKGROUND Mr. Marty Margulies has offered to design and construct an approximate 17,000 sf youth center at the Property. He has further agreed to form a non-profit corporation to be named the Overtown Youth Center that will operate the* youth center at no cost to the City. Section 29-B of the City Charter allows for the conveyance or disposition of City -owned property in connection with the implementation of projects authorized under the Florida community Redevelopment Act of 1969 without being subject to competitive bidding requirements and fair market value return to the City. Highli>;hts of the Agreement: Use: Lessee shall use the Property to provide public educational and recreational opportunities, at no cost, to inner City youth and their families, primarily residing in the Overtown area. Honorable Mayor and Members Of the City Commission Page t Conditions Precedent: The Agreement contains several conditions precedent. Of particular note are the following: Initial Term Options: (1) The City shall have received proof that funds are available to construct the Leasehold Improvements; (2) The Lessee shall have submitted to the City Manager for his approval a plan for funding the maintenance and operation of the Subject Property; (3) The Lessor must own and/or control the use of the Subject Property. The CRA presently owns Lot 1, Block 2; SOST'S SUBDIVISION (PB B-27), which lot must be reconveyed to the City in order for this lease to proceed. (4) The. City Manager shall have approved the Design and Site Plan. Five (5) years Five additional five year periods provided Lessee can demonstrate to the City Manager that it can continue to perform all of its covenants, agreements and obligations under the Agreement in a fiscally sound manner. Lessee, at its sole cost and expense, will design and construct an approximately 17,000 sf building plus site improvements. The estimated cost of this building is $2.5 million. Prior to the commencement of each fiscal year, the Lessee shall submit for the review and approval of the Parks Director, anannual plan which shall include, but not be limited to; a description of the programs and activities, description of staffing and its budget for the upcoming fiscal year. $1 /year Lessee, at its sole cost, shall provide liability, "all risk" property insurance, worker's compensation and automobile insurance. Lessee shall pay for all utilities, including but not limited to, water, sewer, storm sewer, fire lines, electricity, gas, telephone, trash and garbage removal, and other utilities serving the premises. Initial Improvements: Annual Plan: Rent: Insurance: Utilities„ . �26 0 Honorable Mayor and Members Of the City Commission Page 3 Maintenance Responsibilities Lessee, at its sole cost and expense, shall provide all maintenance, including preventative maintenance, repairs, substitutions and replacement to the Property. I Ips i n CAGhB :mCC Lease OYC