HomeMy WebLinkAboutItem #25 - Discussion ItemCITY OF MIAMI, FLORIDA
INTER -OFFICE MEMORANDUM 12
Honorable Mayor and Members
TO of the City Commission DATE : ",?!�� 1 7.1996 FILE
Approve Lease Agreement with
SUBJECT : Parrot Jungle & Gardens
FROM : REFERENCES:
Ces io Resolution, Proposed Lease
City er ENCLOSURES:
RECOMMENDATION
It is respectfully recommended that the City Commission adopt the attached
Resolution authorizing the City Manager to execute a lease agreement, in a form
acceptable to the City Attorney, with Parrot Jungle and Gardens, Inc. for the
development and operation of a botanical garden attraction on approximately 18.6
acres of Watson Island for a period of forty-five (45) years with an option to renew for
one additional fifteen (15) year period. The Lessee is required to make a total capital
investment in said property of not less than $26,000,000, to pay to the City minimum
annual lease payments of not less than $200,000 for years 1 and 2; $300,000 for year
3 and $400,000 beginning year 4 or not less than 5% of gross revenues up to
revenues of $20 million and 6% of gross revenues of revenues in excess of $20
million, whichever is greater, and is subject to additional conditions stipulated in the
attached agreement.
BACKGROUND
The Department of Community Planning and Revitalization has prepared the attached
documentation with the assistance of the Law Department and the Office of Asset
Management.
Following the directives of the City Charter and Code, staff is completing the Unified
Development Project process begun last year for the development and operation of a
botanical garden attraction on approximately 18.6 acres of City -owned waterfront
property on Watson Island. The proposal of Parrot Jungle and Gardens, Inc. was duly
evaluated according to the provisions of the Charter and Code and accepted by the
City. The proposed lease transaction was subsequently approved by a majority of
Miami voters on November 7, 1995.
Furthermore, the proposed lease, as a conveyance of former State property subject to
a deed restriction, is being considered by the Governor and Cabinet of the State of
Florida sitting as the Board of Trustees for the Internal Improvement Trust on July
23, 1996. Execution of the attached lease is subject to execution of an agreement
with the State for a partial modification of said deed restriction.
The City administration has completed negotiations with Parrot Jungle and Gardens,
and the attached agreement, if approved, would govern the detailed arrangements for
the development, construction, leasing, management and operation of the botanical
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Honorable Mayor and
Members of the City Commission
Page Two
garden attraction, including the use of certain additional city -owned properties
located outside of the leasehold area.
Terms of the agreement include requirements for a total capital investment of not less
than $26,000,000 carried out in two phases of development and annual lease
payments to the City of not less than $200,000 for years 1 and 2; $300,000 for year 3
and $400,000 beginning year 4 or not less than 5% of gross revenues up to revenues
of $20 million and 6% of gross revenues of revenues in excess of $20 million,
whichever is greater. The lease is to run for a period of forty-five (45) years with an
option to renew for one additional fifteen (15) year period.
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J-96-559
7/18/96
RESOLUTION NO.
A RESOLUTION, WITH ATTACHMENT(S), AUTHORIZING
THE CITY MANAGER TO EXECUTE A LEASE
AGREEMENT, IN A FORM ACCEPTABLE TO THE CITY
ATTORNEY, WITH PARROT JUNGLE AND GARDENS,
INC. FOR THE DEVELOPMENT AND OPERATION OF A
BOTANICAL GARDEN ATTRACTION ON APPROXIMATELY
18.6 ACRES OF WATSON ISLAND FOR A PERIOD OF
FORTY-FIVE (45) YEARS WITH AN OPTION TO RENEW
FOR ONE ADDITIONAL FIFTEEN (15) YEAR PERIOD;
REQUIRING SAID LESSEE TO MAKE A TOTAL CAPITAL
INVESTMENT IN SAID PROPERTY OF NOT LESS THAN
$26,300,000 TO BE CARRIED OUT IN TWO (2)
PHASES: PAYING TO THE CITY OF MIAMI A MINIMUM
ANNUAL LEASE PAYMENT OF NOT LESS THAN
$200,000 FOR YEARS ONE AND TWO OF LEASE TERM,
$300,000 FOR YEAR THREE AND $400,000
BEGINNING YEAR FOUR, OR NOT LESS THAN FIVE
PERCENT (5%) OF GROSS REVENUES OF REVENUES UP
TO $20 MILLION AND SIX PERCENT (6%) OF GROSS
REVENUES OF REVENUES IN EXCESS OF $20
MILLION, WHICHEVER IS GREATER; SUBJECT TO
SUCH ADDITIONAL CONDITIONS AS ARE PROVIDED IN
SAID AGREEMENT; AND SUBJECT TO THE EXECUTION
OF A PARTIAL MODIFICATION OF RESTRICTIONS TO
DEED NO. 19447 BETWEEN THE CITY OF MIAMI AND
THE BOARD OF TRUSTEES OF THE INTERNAL
IMPROVEMENT TRUST FUND OF THE STATE OF
FLORIDA.
WHEREAS, pursuant to applicable Sections of the Charter and
Code of the City of Miami, Florida ("Charter and Code"), as
amended, pertaining to Unified Development Projects, Parrot
Jungle and Gardens, Inc. submitted a proposal to the City of
Miami ("City") for the development and operation of a botanical
garden attraction on approximately 18.6 acres of City -owned
waterfront property on Watson Island on a lease basis for a
period of forty-five (45) years with the option to renew for one .
additional fifteen (15) year period; and
WHEREAS, said proposal constituted an offer from said firm
to provide construction, planning, design, construction, leasing
and/or management services for improvements to said City
property, as well as a commitment for a total capital investment
of not less than $26,300,000 to be carried out in two phases of
development; and
WHEREAS, under the terms of the proposed lease, the City
shall receive annual lease payments of not less than $200,000 for
Years One and Two of the term, $300,000 for Year 3 and $400,000
beginning Year 4 of the term or not less than five percent (5%)
of gross revenues of revenues up to $23 million and six percent
(6%) of gross revenues for revenues in excess of $20 million; and
WHEREAS, said proposal was duly evaluated according to the
provisions of the Charter and Code and accepted by the City,
subject to approval of the voters and other required conditions;
and
WHEREAS, said proposed lease transaction was subsequently
approved by a majority of voters of the City at a referendum held
November 7, 1995; and
WHEREAS, said proposed lease transaction, as a conveyance of
former State of Florida property subject to a deed restriction,
was further considered by the Governor and Cabinet of the State
of Florida sitting as the Board of Trustees for the Internal
Improvement Trust on July 23, 1996; and
2
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WHEREAS, the City Manager and the City Attorney have
negotiated the attached lease agreement which governs detailed
arrangements with Parrot Jungle and Gardens, Inc. for the
development, construction, leasing, management and operation of
the botanical garden attraction, including the use of certain
additional City -owned properties located outside of the leasehold
area;
NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY
OF MIAMI, FLORIDA:
Section 1. The recitals and findings contained in the
Preamble to this Resolution are hereby adopted by reference
thereto and incorporated herein as if fully set forth in this
Section.
Section 2. The City Manager is hereby authorized!' to
execute a lease agreement, in a form acceptable to the City
Attorney, with Parrot Jungle and Gardens, Inc. for the
development and operation of a botanical garden attraction on
approximately 18.6 acres of Watson Island for a period -of forty-
five (45) years with an option to renew for one additional
fifteen (15) year period; requiring said lessee to make a total
capital investment in said property of not less than $26,300,000
to be carried out in two (2) phases: paying to the City of Miami
a minimum annual lease payment of not less than $200,000 for
Years One and Two of lease term, $300,000 for Year Three and
i� The herein authorization is further subject to compliance
with all requirements that may be imposed by the City
Attorney, including but not limited to those prescribed by
applicable City Charter and Code provisions.
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$400,000 beginning Year Four, or not less than five percent (5%)
of gross revenues of revenues up to $20 million and six percent
(6%) of gross revenues of revenues in excess of $20 million,
whichever is greater; subject to such additional conditions as
are provided in said agreement; and subject to the execution of a
Partial Modification of Restrictions to Deed No. 19447 between
the City of Miami and the Board of Trustees of the Internal
Improvement Trust Fund of the State of Florida.
Section . This Resolution shall become effective
immediately upon its adoption.
PASSED AND ADOPTED this day of 1996.
ATTEST:
WALTER J. FOEMAN
CITY CLERK
ZPREPARED AND AP ROVED BY:
iC---
LI KELLY N
ASSISTANT!' CITY ATTORNEY
APPROVED AS TO FORM AND CORRECTNESS:
6 - 4
Executive Summary
Proposed Lease Terms with
Parrot Jungle and Gardens, Inc. for
Botanical Garden Attraction on Watson Island
Lease Term:
Initial Term of 45 years and the option to extend for one 15 year term
Amount of Rent:
Minimum annual rent in an amount of:
♦ $200,000 for years 1 and 2 (during construction period)
♦ $300,000 for year 3 (first year of operation)
♦ $400,000 beginning year 4
♦ Thereafter, minimum annual rent to be adjusted every 10
years based on an appraisal of fair market rent
or
A Percentage Rent in an amount equal to:
♦ 5% of gross revenues up to gross sales of $20 million and
♦ 6% of gross revenues of gross sales in excess of $20 million
Rent commences at time Lessee takes possession of property; payment
of rent due during construction (maximum of 2 years) may be deferred to
years 7, 8 and 9 of lease term
Date of Possession:
Lessee's "Date of Possession" shall not be later than 180 days after
date of lease execution. Within this time period, Lessee may have
access to the site to conduct the following activities:
♦ obtain financing commitment(s) & provide documentation to
City for approval
♦ conduct environmental assessments, as may be required by
a lending institution
♦ prepare °Phase I Development" preliminary plans for review
and approval by the City
Development Program:
The Botanical Garden is proposed to be developed in two phases.
Phase I Development will include specified improvements valued at a
minimum of $12.5 million to be in place by opening date of attraction.
These improvements create the botanical garden and jungle at a level
and quality required to form an "attraction". Construction of Phase I will
be completed not later than 24 months from Lessee's date of possession
of property.
Phase II Development will include other planned improvements to be
constructed over time (but not later than 10 years) valued at $13.5
million. These improvements enhance and expand services and visitor
attraction opportunities at the garden.
Minimum investment of Phases I and II totals $26 million.
Use of Subject Property:
Primary permitted uses are those required to operate and manage a
garden and family entertainment attraction
Ancillary uses are those secondary permitted uses associated with the
primary use, i.e. retail, restaurant
Jet ski concessions shall be prohibited
Parking:
Within leasehold, Lessee shall construct a 500-space garage
On the south side of island, a surface parking lot of adequate size to
meet balance of zoning requirements beyond the garage's 500-spaces
will be provided and all costs will be paid by Lessee; lot may be operated
by City/DOSP
Bus parking will be off -site (anticipated to be underneath the expressway
bridge)
Public open space on north side of island shall not be permitted for use
as a parking area(s)
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Construction of Roads:
Lessee shall be responsible for all design and construction costs of circulation
roads on the north side of the island leading from the causeway access road to
the Parrot Jungle and Garden, including any costs for reconfiguring circulation
roads to the boat clubs and boat ramp caused by the development of the project.
Lessee Maintenance Responsibilities Outside Leased Area:
♦ Ichimura Miami -Japan Garden
♦ Park lands on north side of MacArthur Causeway
♦ Open space on north side of MacArthur Causeway
♦ Bay walk on north side of MacArthur Causeway
♦ Pedestrian paths on north side of MacArthur Causeway and under
bridge
City Maintenance Responsibilities:
♦ Public Boat Ramp
Ichimura Miami -Japan Garden:
Lessee shall be responsible for all costs associated with the possible
relocation, design and construction of the Ichimura Garden; site
selection on Watson Island, design and construction schedule is subject
to prior review and approval by the City Manager; construction
completion date and issuance of TCO or CO must coincide with the
opening of Lessee's garden attraction to the general public
Environmental Conditions:
Phase I environmental assessment costs paid by Lessee; should Phase
11 environmental assessment be required and any subsequent
remediation be required, City and Lessee agree to discuss a mutually
fair and equitable distribution of costs to be incurred to carry out
remediation activities or either party shall have the option to declare the
Lease null and void and the City shall reimburse Lessee for the cost of
Phase I.
Parrot Jungle Property Located in Pinecrest:
City agrees to consider proposals that may be brought to the City's
attention related to the disposition of Parrot Jungle property in Pinecrest.
- 55.1
LEASE AND DEVELOPMENT AGREEMENT
BETWEEN THE
CITY OF MIAMI, FLORIDA
F.."k )
PARROT JUNGLE AND GARDENS, INC.
DATED:
Wyr�d
TABLE OF CONTENTS
Page No.
STATEMENT OF BACKGROUND AND PURPOSE 1
ARTICLE I EXHIBITS AND DEFINITIONS 3
Section 1.1 Exhibits 3
Section 1.2 Defined Terms 3
ARTICLE II THE DEMISE 18
Section 2.1 The Demise 18
Section 2.2 The Leasehold Improvements To Become
Property Of Lessor 18
ARTICLE III -TERM
18
Section 3.1
Lease Term
18
ARTICLE IV -POSSESSION OF THE SUBJECT PROPERTY
AND CONSTRUCTION OF LEASEHOLD IMPROVEMENTS
19
Section 4.1
The Leasetiold'Impro-vements
19
Section 4.2
Lessee's Financial Obligations
19
Section 4.3
Delivery Of Possession Of Subject Property
(The Possession Date)
19
Section 4.4
Additional Security For Lessee's Construction Obligations
23
l Section 4.5
Time For Commencement And Completion Of
Construction Of The Phase I Leasehold Improvements
26
Section 4.6
Manner Of Construction Of Phase I Leasehold Improvements
26
Section 4.7
Manner Of Construction Of Leasehold Improvements
And/Or Capital Improvements After Completion Off Phase 1
30
Section 4.8
Rights Of Access To Property
30
Section 4.9
Temporary Use Of Watson Island During
Construction Of Leasehold Improvements
31
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ARTICLE V-RENT
31
Section 5.1
Amount Of Rent
31
Section 5.2
Rent Payment Deferral
33
Section 5.3
Rent Escalation
33
Section 5.4
Adjustment To Minimum Annual Rent
34
Section 5.5
Security Deposit
35
Section 5.6
Place Of Payment
37
Section 5.7
Rent To Be Without Deduction, Setoff Or Counterclaim
37
Section 5.8
Payment Of Rent In Event Of Loss Or Damage
37
Section 5.9
Alternative Rent Payment Schedule
37
ARTICLE VI -MORTGAGES AND MORTGAGEES
38
Section 6.1
Leasehold Mortgage
38
Section 6.2
No Waiver Of Lessee's Obligations Or City's Rights
45
ARTICLE VH-ADDITIONAL CONDITIONS OF LEASE
AGREEMENT AND RESTRICTIONS UPON USE OF
SUBJECT PROPERTY 46
Section 7.1
Certain Conditions Of Leasing
46
Section 7.2
Mitigation Of Impact On Adjacent Residential Areas
46
Section 7.3
Restrictive Covenants
48
Section 7.4
Signage
51
ARTICLE VIII-RESTRICTIONS ON ASSIGNMENTS
AND TRANSFERS OF SUBJECT PROPERTY
52
Section 8.1
Representations As To Development Of The Project
52
Section 8.2
Definitions
52
Section 8.3
Transfers
53
Section 8.4
Notice Of Transfer; Information As To Shareholders
55
Section 8.5
Effectuation Of Certain Permitted Transfers
56
Section 8.6
Subletting And Concessions
57
Section 8.7
Transfers Of The City's Interest
57
Section 8.8
Criteria For Consent For AssignmentsAnd/Or Purchasing
Subject Property
58
Section 8.9
Acceptance Of Rent From Transferee
60
ARTICLE IX -EASEMENTS
60
Section 9.1
Easements
60
Section 9.2 (a)
Existing Easements
60
Section 9.2 (b)
Easements Granted To Lessee
61
Section 9.2 (c)
Duration Of Easements
62
Section 9.2 (d)
Confirmatory Instruments
62
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ARTICLE X-PAYMENT OF TAXES, ASSESSMENTS AND OTHER
IMPOSITIONS
62
Section 10.1
Payment Of Ad Valorem
63
Section 10.2
Payment Of Impositions
63
Section 10.3
Proof Of Payment
63
Section 10.4
Lessee's Right To Contest Taxes
64
ARTICLE XI -]INSURANCE
65
Section 11.1
Insurance On The Improvements
65
Section 11.2
Other Insurance To Be Carried
66
Section 11.3
Delivery Of Insurance Policies
68
Section 11.4
Adjustment Of Loss
68
Section 11.5
Insurer To Be Approved;
Premium Receipts
69
Section 11.6
Waiver Of Subrogation
70
ARTICLE XII-TITLE
70
Section 12.1
Title Of Leased Property
70
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ARTICLE XIH
USE OF THE SUBJECT PROPERTY
AND THE LEASEHOLD IMPROVEMENTS
71
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Section 13.1
Limited Representations By Lessor
71
Section 13.2
The Improvements To Be Open To Public
72
Section 13.3
Compliance With Laws
72
Section 13.4
Right To Contest Compliance
72
Section 13.5
Use Of The Subject Project
73
Section 13.6
Parking
73
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Section 13.7 Future Parking Requirements 72
Section 13.8 Ichimura-Miami Japanese Garden And Brown House 73
ARTICLE XIV-REPAIRS, MAINTENANCE AND IMPROVEMENTS 74
Section 14.1 Repair Of The Leasehold Improvements 74
Section 14.2 Control Over Repairs 75
Section 14.3 Removal Of Dangerous Conditions 75
Section 14.4 Alteration Of Improvements 75
Section 14.5 Repairs To Watson Island 76
ARTICLE XV-LESSOR'S RIGHT TO PERFORM LESSEE'S
COVENANTS; REIMBURSEMENT OF LESSOR
FOR AMOUNTS SO EXPENDED
77
Section 15.1
Performance Of Lessee's Covenants To Pay Money
77
Section 15.2
Lessor's Right To Cure Lessee's Default
77
Section 15.3
Attorney's Fees And Expenses
78
Section 15.4
Reimbursement Of Lessor And Lessee
78
ARTICLE XVI -DAMAGE OR DESTRUCTION 78
Section 16.1 Repair And Replacement Of The Improvements And
Any Subsequent Improvements After Damage 78
Section 16.2 Payment For Construction. After Damage Or Destruction 79
Section 16.3 Collection Of Insurance Proceeds 80
Section 16.4 Unused Insurance Proceeds And Deposits 80
ARTICLE XVII-ARBITRATION 8o
Section 17.1 Arbitration 80
ARTICLE XVlffi-MECHANICS LIENS 82
Section 18.1 Discharge Of Mechanics Liens 83
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ARTICLE XIX-COVENANT AGAINST WASTE AND INSPECTION 84
Section 19.1 Waste 84
Section 19.2 Inspection Of Subject Property 84
ARTICLE XX ENVIRONMENTAL LIABILITY 84
Section 20.1
Definition Of Terms
84
Section 20.2
Environmental Warranty Of Leases
85
Section 20.3
Investigation Of Environmental Condition Of The
Subject Property
86
Section 20.4
Lessor's Representations And Warranties
87
Section 20.5
Allocation Of Financial Responsibility For Cleanup
Of Existing Contamination
87
Section 20.6
Lessee's Liability For Contamination During Term
Of Agreement
87
Section 20.7
Lessor's Liability For Contamination During Lease Term
88
Section 20.8
Indemnity
88
ARTICLE XXI
PUBLIC UTILITY CHARGES
89
Section 21.1
Lessee To Provide And Pay For Utilities
89
.Section 21.2
Lessor Not Liable For Failure Of Utilities
89
ARTICLE XXII-INDEMNIFICATION OF LESSOR $9
Section 22.1 General Indemnification Of Lessor Without Limitation
Of Any Other Indemnity Given Hereunder 89
ARTICLE XXIII-LIEN FOR RENT AND OTHER CHARGES 91
Section 23.1 Lien For Rent 91
ARTICLE XXIV (BLANK) 91
ARTICLE XXV-CONDEMNATION 91
Section 25.1 Entire Subject Property Taken By Condemnation 92
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Section 25.2 Partial Taking Of Subject Property By Condemnation 93
Section 25.3 Adjustment Of Rent Upon Partial Taking 94
Section 25.4 Deposit Of Condemnation Award With Escrow Agent 94
Section 25.5 Rights Of Leasehold Mortgagee 95
Section 25.6 Temporary Taking 95
ARTICLE XXVI-DEFAULT PROVISIONS 97
Section 26.1 Events Of Default; Lessee
97
Section 26.2 Remedies In Event Of Default
98
Section 26.3 Waivers And Surrenders To Be In Writing
101
Section 26.4 Rights Of Leasehold Mortgagee Upon Lessee's Default
101
Section 26.5 Events Of Default; City
102
Section 26.2 Unavoidable Delay
103
ARTICLE XXVIE INVALIDITY OF PARTICULAR PROVISIONS
104
Section 27.1 Invalidity Of Provisions
104
ARTICLE XXVIH-QUIET ENJOYMENT
104
Section 28.1 Quiet Enjoyment
104
ARTICLE XXIX LESSOR'S TITLE AND LIEN
104
Section 29.1 Title And Lien Paramount
104
Section 29.2 Lessee Not To Encumber Lessor's Interest
104
ARTICLE XXX (BLANK)
105
ARTICLE XXXI-LIMITATION OF LIABILITY
105
ARTICLE XXXII-ESTOPPEL CERTIFICATES
106
Section 32.1 Estoppel Certificates
106
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ARTICLE XXXIII-REMEDIES CUMULATIVE 107
Section 33.1 Remedies Cumulative 107
Section 33.2 Waiver Of Remedies Not To Be Inferred 107
ARTICLE XXXIV-SURRENDER AND HOLDING OVER 107
Section 34.1 Surrender At End Of Term 107
Section 34.2 Rights Upon Holding Over 108
ARTICLE XXXV-SUBLEASES 108
Section 35.1 Limitation On Subleases 109
Section 35.2 Sublease Term 110
Section 35.3 Assignment Of Lease Agreements To Lessor For Security 110
ARTICLE XXXVI-FINANCIAL STATEMENTS 112
Section 36.1 Financial Statement 112
ARTICLE XXXVII-MODIFICATION 112
Section 3T I Modification 112
ARTICLE XXXVIII-CONVEYANCE BY LESSEE TO LESSOR 112
Section 38.1 Conveyance By Lessee To Lessor 112
ARTICLE XXXIX-APPLICABLE LAW 112
Section 39.1 Applicable Law 113
ARTICLE XL -NOTICES 113
Section 40.1 Manner Of Mailing Notices 113
Section 40.2 Notice To Leasehold Mortgagee 113
Section 40.3 Sufficiency Of Service 114
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Section 40.4 When Notice Deemed Given Or Received 114
ARTICLE XLI-MISCELLANEOUS PROVISIONS 115
Section 41.1 Captions 115
Section 41.2 Conditions And Covenants 115
Section 41.3 Entire Agreement 115
Section 41.4 Time Of Essence As To Covenants Of Lease Agreement 115
Section 41.5 Recording. Documentary Stamps 115
ARTICLE XLII-MINORITY AND WOMEN'S BUSINESS
AGREEMENT 116
ARTICLE XLHI-COVENANTS TO BIND AND BENEFIT
RESPECTIVE PARTIES AND TO RUN WITH
THE SUBJECT PROPERTY 116
Section 43.1 Covenants To Run With The Subject Property 116
ARTICLE XLIV-WAIVER OF REDEMPTION 116
ARTICLE XLV-GENERAL PROVISIONS 116
Section 46.1
Conflict Of Interest
116
Section 46.2
Brokerage
117
Section 46.3
Assignability And Binding Effects
117
Section 46.4
Duplicate Originals
117
Section 46.5
Equal Employment Opportunities
117
Section 46.6
Declaration Of Termination
117
Section 46.7
Authority
117
Section 46.8
Waiver Of Jury Trial
117
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LEASE AND DEVELOPMENT AGREEMENT
This Lease and Development Agreement (the "Lease") is made as of the
1996, between the City of Miami, a municipal corporation of the State of
Florida acting by and through the City Manager (the "City Manager"), and with the approval of
the City Commission of Miami having its offices at 3500 Pan American Drive, Miami, Florida
33133 ("LESSOR" or "CITY"), and Parrot Jungle and Gardens, Inc., a Florida corporation
whose principal office is located at 11000 Southwest 57th Avenue, Miami, Florida 33156,
("LESSEE").
STATEMENT OF BACKGROUND AND PURPOSE
The City is owner, in fee simple of all that certain land located between the City of Miami,
Dade County, Florida and the City of Miami Beach, Dade County, Florida which is known as and
referred to herein as "Watson Island". Watson Island is shown on the survey attached hereto as
Exhibit A. For the purpose of this Lease, Watson Island consists of the following parcels:
A. A parcel of land shown and designated on Exhibit A and in this Lease as the
"Subject Property";
B. The remainder of Watson Island as shown on Exhibit A (hereinafter "Watson
Island").
By authority of the City of Miami Charter, the City on May 25, 1995 adopted Resolution
No. 95-415 which authorized the publication of a request for proposals for the development of a
Y
Botanical Garden Attraction and related uses on as much as 19.6134 acres of City -owned
waterfront property and adjacent bay bottom located at Watson Island, Miami, Florida.
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Lessee submitted a proposal to develop a project to be known as "Parrot Jungle &
Gardens", which would from time to time include the following amenities, as more particularly
described in Exhibit K, "Development Plan (Phases I & II)":
1. Attractions to include:
Jungle Trails & Gardens;
Jungle River;
Semi -Formal Gardens;
Aviaries and Bird Exhibits;
Baby Bird Nursery & Hatchery;
Monkey Village;
Infant Ape Care Facility;
Flamingo Lake;
Everglades Lake;
Posing and Photography Area;
Terrarium and Education Center;
Reptile Exhibits;
South Florida Aquatic Exhibit;
Children's Adventure Park;
Beachfront Recreation Area;
Picnic Pavilions; and
Brown House
2. Banquet/Special Event Facility Meeting Rooms
3. Theaters including:
Parrot Bowl;
Jungle Theater & Wildlife Showcase; and
Terrarium Theater
4. Food Service Facilities, such as:
Parrot Cafe;
Japanese Tea Room;
Terrarium Food Court;
Family Attraction Center; and
Food Carts/Picnic Service
5. Retail Service Facilities such as:
Parrot Jungle Emporium; and
Terrarium Gift Shop
6. Service and Support building to include:
Main Entrance and Entry Building
01
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96--5-5-tm
Maintenance Facility;
Service Area;
Veterinary Hospital;
Plant Nursery,
Parking Areas;
Security;
Restrooms; and
Educational complex
It is the mutual desire of the parties that a portion of Watson Island be leased and demised
by the Lessor to the Lessee for the purposes set forth in the proposal submitted by Lessee and
accepted by Lessor, subject to and upon the terms and conditions contained herein.
The Statement of Background and Purpose is a description of the current intent of the
parties with regard to development and construction of the Project and is not intended to limit the
rights or the obligations of the parties except to the that it contains definitions and terms which
are used elsewhere in this Lease. The descriptions in this Statement of Background and Purpose
are for illustrative purposes only, and as to such matters the approved Construction Documents
prepared by the parties shall control. Certain terms defined in the Statement of Background and
Purpose are more particularly defined in Section 1.2, to which reference is hereby made.
In consideration of the foregoing and of the rent, covenants, and agreements hereinafter
set forth, the parties do hereby covenant and agree as follows:
ARTICLE I
EXHIBITS AND DEFINITIONS
Section 1.1. Exhibits. Attached hereto and forming a part of this Agreement are the
following Exhibits:
Exhibit A -- Survey
Exhibit B -- Conceptual Site Plan
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Exhibit C -- Legal Description of Subject Property
Exhibit D -- Phase I Development Construction Documents
Exhibit E -- Phase II Development Construction Documents
Exhibit F -- Permitted Encumbrances and Easements
Exhibit G -- Infra Structure Improvement Construction Documents
Exhibit H -- Development Schedule
Exhibit I -- List of Drawings showing all easements and utilities located at the Subject
Property known to the Director of Public Works of the City of Miami
Exhibit J -- Construction Responsibility Plan
Exhibit K -- Development Plan (Phases I & II)
Exhibit L -- Possession Date Certificate
Exhibit M -- Sublessee and Concessionaire Acknowledgment
Section 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:
"Acceptable Operator" means an entity possessing the business experience, good
reputation, financial resources and adequate personnel necessary for the proper performance of all
of Lessee's obligations under this Lease in a manner consonant with the quality, reputation and
economic viability of the Project, including (without limitation) the obligation of Annual Base
Rental theretofore payable by Lessee under this Lease.
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24
"Acceptable Operator Agreement" has the meaning ascribed to it in Subsection 8.3 (d).
"Acceptable Purchaser" has the meaning ascribed to it in Subsection 8.3(d).
"Adjacent Property" means all of the public property located north of the MacArthur
Causeway, which is depicted on the survey of Watson Island attached hereto and made a part
hereof as Exhibit A.
"Arbitration Panel" has the meaning ascribed to it in Section 17.1.
"Lessee's Leasehold Estate" means all of Lessee's right, title and interest as Lessee in, to
and under this Lease, the Subject Property and the Improvements.
"Possession Date" means the date described in Section 4.2.
"Rent Accrual Period" means that certain period of time commencing with the Possession
Date and terminating on the Initial Rent Payment Date.
"Annual Rent or Rent" shall be as set forth in Section 5.1 and shall include any additional
rent occurring or which may occur pursuant to the provisions of this Lease.
"Capital Investment" as used in the definition of Gross Revenue means any addition to the
Project or the construction of any portion of the Project or other construction, improvement or
addition in, upon or constituting part of the Subject Property, more or less, permanent in
character, and durable equipment of not Iess than five thousand dollars ($5,000.00).
"Capital Improvements" means any addition to the Project or the construction of any
additional portion of the Project or other construction in, upon or constituting part of the Subject
Property (i) occurring subsequent to the date on which the entire Project is "open for business",
(ii) the cost of which is reasonable and verifiable and may be capitalized and depreciated in
accordance with generally accepted accounting principles or which constitute a major renovation
-5-'�'
555.E
to an existing Leasehold Improvement and (iii) the cost of which is not included in the
construction and/or permanent financing of Development Costs.
The "City" or the "Lessor" has the meaning ascribed to it in the opening paragraph of this
Agreement.
The "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.
"Certificate of Occupancy" means the certificate issued by the Lessor which permits the
use of the Subject Property and the Leasehold Improvements(as defined below) in accordance
with the approved Construction Contract and which certifies compliance with the provisions of
law for the use and occupancy of the Leasehold Improvements and the Subject Property.
"Construction Contract or Construction Documents" means the contracts, Construction
Documents, and specifications for the construction of the Leasehold Improvements together with
any supplemental agreements.
"Lease Date" means the date this Lease Agreement is last signed by the Lessor and
Lessee, and approved by the City of Miami Commission.
"Initial Rent Payment Date" means the date that is (i) twenty-four (24) months from the
Possession Date.
"Lease Year" shall mean any period of time consisting of twelve (12) consecutive calendar
months during the Lease Term which begins on the first day of the month following the
Possession Date.
"Lender" means any commercial bank, savings bank or trust company, savings and loan
associations, pension or retirement fund or system; any insurance company; any federal, state or
1
municipal government or governmental agency; any government pension or retirement fund; or
any other type of institutional lender or private group or investment trust financing the
construction of the Leasehold Improvements (or any part of them), to be constructed by the
Lessee upon the Subject Property, or financing Lessee's Leasehold Estate.
"Consumer Price Index" means the monthly indices for the applicable month published by
the Bureau of Labor Statistics of the United States Department of Labor as The Consumer Price
Index for All Items.
"Control" (including correlated meanings such as the terms controlling, controlled by, and
under common control with), as used with respect to any entity, means the possession, directly or
indirectly or the power to direct or cause the direction of the management decisions and policies
of that entity, whether through the ownership of voting securities, beneficial interests or by
contract or otherwise.
"Development Costs" means an amount, provided in reasonable detail to the Lessor by an
executive officer of Lessee and acceptable to Lessee's Leasehold Mortgagees, equal to the
aggregate of all costs and expenses actually incurred by Lessee for the purpose of and properly
allocated to the initial development and construction of the Leasehold Improvements at the
Subject Property (together with any and all improvements made by Lessee on behalf of the Lessor
on the Subject Property and/or in areas adjacent to the Subject Property not paid for by the
Lessor), including items of Infrastructure Improvements, Parking Facilities and Public
.t
Improvements, and including (without limitation or duplication):
(1) Design, planning, architectural and engineering fees, costs and expenses;
and presentation costs and expenses;
►1
(2) The cost of labor, equipment, supplies, materials and services paid to
contractors and subcontractors;
(3) Fees and expenses paid to contractors and subcontractors;
(4) Legal and accounting costs, fees and expenses;
(5) Interest, commitment fees, points and other financing costs incurred in
arm's length transactions, and interest on money borrowed by Lessee from affiliated entities or
subsidiaries in connection with the development of the Parrot Jungle & Gardens at a cost not
greater than the borrowing cost incurred by such affiliate or subsidiary;
(6) The cost of property, liability, workmen's compensation, title and other
insurance;
(7) The cost of obtaining permits and licenses, and all Impositions;
(8) Utility relocation costs and expenses and tap -in fees or other fees for
connection to utility systems and utility services during construction;
(9) All costs and expenses incurred in connection with the negotiations and
execution of this Lease;
(10) Topographical, soil tests and all environmental studies and tests;
(11) The cost of initially furnishing and equipping management and promotion
offices in the Improvements;
(12) The cost of providing, furnishing, equipping and operating a field office at
or near the Leased Property to or during construction of the Leasehold Improvements, including
(without limitation) the costs of construction trailers or other temporary office structures, barges
and other vessels, automobiles, office furniture, equipment, supplies, telephone, stationery,
postage and duplication;
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99-5"'
(13) All taxes, the salaries, fringe benefits, payroll taxes, travel and moving
expenses, and other costs of employment at such field office of (i) managers and promotion
directors (but only to the extent incurred prior to the Opening Date), and (ii) tenant coordinators,
project accountants, secretaries, clerks and similar office personnel;
(14) The cost of subleasing a portion of the improvements for their initial
occupancy, including (without limitation) advertising costs and the fees, commissions and
expenses paid to leasing agents or brokers;
(15) The cost of pre -opening management, advertising and publicity and the
cost of any opening event or celebration including advertising and publicity of same;
(16) The central office overhead cost of Parrot Jungle & Gardens or any affiliate
related thereto with respect to the development of the Project; and
(17) Other reasonable costs and expenses which are of a type usually and
customarily incurred in connection with development of a botanical garden attraction.
"Environmental Condition Acceptance" means written notification from Lessee to Lessor
stating that Lessee has undertaken its investigation and evaluation of the environmental conditions
on the Subject Property and is willing to develop the Project.
"Event of Default" means the occurrence of any action specified in Section 26.1.
"Events of Lessor's Default" has the meaning ascribed to it in Section 2.6.5.
"Events of Lessee's Default" has the meaning ascribed to it in Section 2.6.1.
`L
"Fair Market Rent" means the most probable rent that a property should bring in a
competitive and open market under all conditions requisite to a fair lease, the lessor and lessee
each acting prudently, knowledgeably, and assuming the rent is not affected by undue stimulus.
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Implicit in this definition is consummation of a lease as of a specified date under conditions
whereby:
(i) Lessor and lessee are typically motivated;
(ii) Both parties are well-informed or well-advised and acting in what they
consider their own best interests;
(iii) A reasonable time is allowed for exposure in the open market;
(iv) Payment is made in terms of case in U.S. dollars or in terms of financial
arrangements comparable thereto; and,
(v) The rent represents the normal consideration for property leased unaffected
by special or creative financing or concessions granted by anyone associated with the lease.
"Financing Sublease" has the meaning ascribed to it in the definition of "Sale-Subleaseback
Transaction".
"Gross Revenue" means all revenue of any nature derived by the Lessee and any of
Lessee's subtenants, lessees, licensees or concessionaires directly from the business that the
Lessee and any of Lessee's subtenants, lessees, licensees or concessionaires conduct upon or from
the Subject Property, including, without limitation, revenue from: (i) advertising conducted on the
Subject Property, (ii) any and all trademarks, logos, or any other legally protected trademark
owned and/or controlled by the Lessee or which is used in connection with or in identification of
the Subject Property and the naming of all or any portion of the Subject Property or the
Leasehold Improvements; (iii) any parking revenue, (iv) from all sales, rentals, and services,
including the licensing and/or rentals of animals, both for cash and on credit, made or rendered in,
upon or from the Subject Property, by personnel and from other sources, such as pay telephones,
vending machines, and entertainment devices, and in cases of sales on credit whether or not
payment be actually made therefor, (v) all sales of admission tickets to the subject property
whether or not made or rendered in, upon or from the Subject Property, (vi) all monies received
by Lessee from, without limitation, ticket agencies, tour operators, hotels, travel agencies, bus
and boat companies for the right to sell admission tickets or any other form of entry rights to the
Subject Property, and (vii) all monies paid to Lessee or Lessee's subtenants, licensees, or
concessionaires in connection with the use of the Subject Property, any facility thereon or any
portion thereof for any period of time, including without limitation, for: (a) special events, such
as banquets, concerts, receptions and banquets and (b) motion picture, commercial filming
purposes or commercial photographic purposes; reduced by the following deductions: (i) revenue
received from the naming of all or any portion of the Subject Property or the Leasehold
Improvements if such revenue has been received and utilized by Lessee as a Capital Investment in
the Subject Property and/or the Leasehold Improvements, and (ii) amounts of any refunds or
allowances made on merchandise claimed to be defective or unsatisfactory or discounts to
customers, provided that if such refunds, allowances or discounts are in the form of credits to
customers, such credits shall be included in gross sales when used, (iii) exchanges of merchandise
between different locations of Lessee or a controlled party where such exchanges are made solely
for the operation of Lessee's business and not for the purpose of consummating a sale which has
been made at, in or on the Subject Property, (iv) returns to shippers and manufacturers for credit,
(v) sale of trade fixtures or operating equipment after use thereof in the conduct of Lessee's
business on the Subject Property, (vi) all sums and credits received in settlement of claims for loss
or damage to merchandise, (vii) all credit company charges, (viii) sales made from the Subject
Property of goods or items which are to be shipped directly to the purchaser from another
30
location, and (ix) amount of any sales or excise tax levied upon retail sales and payable over to the
appropriate governmental authority.
"Imposition" means all governmental assessments, franchise fees, excises, license and
permit fees, levies, charges and taxes, general and special, ordinary and extraordinary of every
kind and nature whatsoever levied against the Subject Property and/or the Lessees use thereof.
"Infrastructure Improvements" means water mains, sanitary and storm sewer mains,
sidewalks, curbs, roads, driveways and their appurtenances as contained upon the Infrastructure
Improvements Construction Documents attached hereto as Exhibit F.
"Legal Requirements or Applicable Law" means all laws, statutes, codes, acts, ordinances,
orders, judgments, decrees, injunctions, rules, requirements of any and all governments,
departments, commissions, boards, courts, authorities, agencies, officials and officers, now
existing or hereafter enacted, adopted, promulgated, entered or issued, foreseen and unforeseen,
ordinary and extraordinary, which now or at any time may be applicable to the Subject Property
or any part of it.
"Lessee" has the meaning ascribed to it in the opening paragraph of this Agreement.
"Lessee Maintenance Area" has the meaning ascribed to it in Section 14.1.
"Lessee Utility Easement" has the meaning ascribed to it in Subsection 9.2 (b)(i).
"Lessee Vehicular Access Easement" has the meaning ascribed to it in Subsection 9.2
(h)(ii).
"Minimum Annual Rent" means that minimum rent to be paid as set forth in Section
5.1 (a).
"Leasehold Improvements" means all the buildings, structures and improvements of any
nature, including the initial improvements described in the Phase I and Phase II Development
1 r
- 12 -
Construction Documents and any improvement constructed thereafter from time to time during
the Lease Term, (including parking facilities, garages, and all supports, foundations, landscaping,
fences, gardens, parks, planters, terrariums, bowls and amphitheaters, but excluding any
sidewalks, curbs, driveways, waterways, bridges, and other Infrastructure Improvements), 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, garage
equipment, 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 Improvements.
"Leasehold Mortgage" means a mortgage, deed of trust, or other instrument which
constitutes, or any security interest given in connection therewith, which together constitute an
encumbrance or lien upon the Lessee's Leasehold Estate or any part of it, or any related personal
property, and Lessee's interest in the Leasehold Improvements (including Lessee's interest as
sublessor in any present or future subleases and any other interest of the Lessee in the Leasehold
Improvements and Personal Property) as security for any loan, including the Lessee's construction
loan.
t
"Leasehold Mortgagee" means any holder of the Leasehold Mortgage or note or notes
secured by it or any Person to whom title to the leasehold estate has been transferred pursuant to
foreclosure proceedings or any action in lieu of foreclosure.
32
"Lease Term" means the total of the Initial Term, and the First Extension Term as such
terms are described and fixed in Subsection 3.1.
"Parking Facility" means the parking facilities to be located both on the Subject Property
and on the remainder of Watson Island which shall be constructed at any time during the Lease
Term.
"Percentage Rent" means that percentage of Gross Revenues set forth in Section 5.1(b).
"Permitted Delays" means
"Permitted Exceptions" means those items set forth on Exhibit E, attached hereto.
"Person" means any natural person, trust, firm, partnership, corporation, joint venture,
association, or any other legal or business entity investment enterprise.
"Personal Property" means all property owned and used by the Lessee or any Sublessee or
assignee of the Lessee, in connection with and located upon the Subject Property, not subject to
any security interests or title retention agreement of a third party.
"Prime Interest Rate" means that rate of interest charged by (or if this bank
is not in existence or making loans at the Prime Interest Rate, then the Prime Interest Rate shall be
that rate so charged by the bank located in the City of Miami having the largest net worth at the
applicable time) from time to time on 90 day commercial loans to its most creditworthy corporate
borrowers.
"Project" means the Leasehold Improvements described in the State of Background and
Purpose.
"Public Improvements" mean all of the public amenities, including but not limited to the
boat ramps,
constructed on Watson Island.
and that now exist or may hereafter be
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1/
"Relocation" means the removal by and at the sole cost of the Lessee of existing public
utilities lying within and upon the Subject Property which public utilities would (except for their
removal) otherwise interfere with the construction of the Leasehold Improvements by the Lessee.
"Rent Commencement Date" means the date that the Lessee's obligation to pay rent
commences and for purposes of this Lease such date shall be the same date as the "Possession
Date" as such term is defined in Section 4.1.
"Sale-Subleaseback Transaction" means Lessee's sale to a Lender of all or a substantial
portion of "Lessee's interest in this Lease, and the subsequent execution of a sublease ("Financing
Sublease") between Lender/Lessor and Lessee.
"Section", "subsection", "paragraph", "subparagraph", "clause", or "subclause" followed
by a number or letter means the section, subsection, paragraph, subparagraph, clause or subclause
of this Agreement so designated.
"Sublease" means any lease, sublease, license, concession or other agreement by which
Lessee or any person or other entity claiming under Lessee (including, without limitation, a
subtenant or sublicensee) demises, leases, subleases, licenses or sublicenses to or permits the use
or occupancy by another person or entity of any part of the Subject Property and Leasehold
Improvements.
"Subtenant" means any person, firm, corporation or other legal entity using or occupying
or entitled to use or occupy any part of the Subject Property or the Leasehold Improvements
under a Sublease.
"Southside Parking Lot" has the meaning ascribed to it in the Statement of Background
and Purpose.
34
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"Subject Property" means the real estate owned by the Lessor and comprising all of the
land to be demised under the terms of this Lease Agreement, (as reflected on the survey attached
hereto as Exhibit A) the legal description of which is attached to this Lease as Exhibit C.
"Substantial Completion" means that all of the Leasehold Improvements have been so
completed that they are finished and/or ready for the beneficial use and occupancy of the Lessee
or Sublessees under this Lease Agreement, and consequently, substantial completion need not
include any immaterial incomplete items or so-called minor punch -list items provided all of same
do not affect the reasonable habitation and use of the Leasehold Improvements and any
uncompleted items shall be fully completed within a reasonable time after the original completion
date, but not to exceed 90 days (subject to Unavoidable Delays). Substantial completion and final
completion also need not include any items which relate solely to the finish requirements of
tenants or sublessees of the Subject Property provided all of the tenants finish requirements are
completed within the time provided by any construction lender or permanent lender and as the
leasing progresses with respect to the applicable portions of the Subject Property.
"Total Construction Costs" shall include all hard construction costs, costs of furnishings
and fixtures, machinery and equipment and also all so-called soft costs including, but not
necessarily limited to, taxes during construction, interim interest expenses, financing fees, if any,
architectural, engineering and design fees, survey, title insurance charges and premiums, permits
and licenses, insurance premiums during construction, accounting, marketing costs, advertising
'i
and brokerage and legal fees relating to the acquisition of the leasehold estate, leasing, and
construction, utilities, tap -in connection fees, topographical and soil tests, if any, and costs of
similar items, and all other otherwise costs related to the cost of the construction of the Leasehold
Improvements.
•' 1
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"Transfer" has the meaning ascribed to it in Section
"Watson Island" has the meaning ascribed to it in the Statement of Background and
Purpose.
"Work" means all construction to be performed by the Lessee, including any repairing,
restoring, removing, or replacing of the Leasehold Improvements.
"Unavoidable Delays" means (with respect to Lessee's obligation regarding either
demolition or construction, on -site or off -site improvements, construction or the Possession Date,
any delay caused by: damage or destruction by fire or other casualty, whether similar or dissimilar,
acts of the federal, local, or state governments, or strikes, embargoes, shortages of material,
unusually adverse weather conditions, or other like or unlike events or conditions beyond the
control of the Lessee and without its fault or negligence including any court action.
I
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36
ARTICLE H
THE DEMISE
Section 2.1. The Demise. The Lessor, for and in consideration of the Rents reserved
and of the covenants and agreements made by the Lessee to be kept, observed and performed,
does demise and lease to the Lessee, and the Lessee leases from the Lessor, the Subject Property
subject only to the Permitted Exceptions.
Section 2.2. The Leasehold Improvements To Become The Property Of Lessor. So
long as this Lease or any lease given in substitution of this Lease, pursuant to Section 6.3, remains
in force, the Leasehold Improvements constructed by the Lessee on the Subject Property
(specifically excluding the Infrastructure Improvements constructed by the Lessee, which shall
become the property of the Lessor upon completion and acceptance) shall be owned in fee simple
by the Lessee but on termination of this Lease, whether by passage of time or otherwise, the
Leasehold Improvements shall become the sole property of the Lessor in fee simple and free and
clear of all encumbrances excepting only (i) the lien of taxes assessed but not yet due and payable
(for which the Lessee shall remain obligated to pay to the extent that they are allocable to the
period prior to the termination of this Lease and, (ii) subject to any installments of levies for
Public Improvements not yet due and payable prior to the termination of this and, (iii) subject to
the Lessor's rights and remedies in the event of the termination of this Lease because of Lessee's
default, and (iv) subject to the rights of any Leasehold Mortgagee under Section 6.3 of this Lease.
Section 3.1. Lease Term.
.1
ARTICLE III
TERM
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37
(a) Initial Term. This Lease shall be for an initial term of forty five years (45) (the
"Initial Term"), commencing on the Possession Date and ending on the date that is forty-five (45)
years thereafter, unless terminated at an earlier date for any reason set forth in this Lease. Within
thirty (30) days after the Possession Date, the City Manager and the Lessee, upon request of
either party, shall execute one or more memoranda in such form as will enable them to be
recorded among the Public Records of Dade County setting forth the beginning and termination
dates of the Initial Term, determined in accordance with this Lease.
(b) The Extension Term. The Lessee is hereby granted the option of extending this
Lease for a single fifteen (15 ) year period (the "Extension Term") provided the Lessee is not in
default of any of the material provisions of this Lease on the date of the exercise of the option.
To exercise this option, the Lessee must give the Lessor written notice no later than one hundred
and eighty (180) days before the expiration of the Initial Term, and no earlier than one (1) year
before the expiration of the Initial Term, unless such requirement of notification no earlier than
one (1) year before the expiration of the Initial Term is waived by the City Manager. The
Extension Term will be on all of the same terms and conditions as contained in this Lease
Agreement except that the rent will be adjusted as set forth in Section 5.4.
ARTICLE IV
POSSESSION OF THE SUBJECT PROPERTY AND CONSTRUCTION OF
LEASEHOLD IMPROVEMENTS
L
Section 4.1. The Leasehold Improvements. The Parties agree that the development of
the Project described in the Statement of Background and Purpose may be undertaken by the
Lessee in two (2) phases. Accordingly, the Lessee, at the sole cost and expense of the Lessee,
and pursuant to proper permits and substantially in the manner provided by this Section and in
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I
accordance with the provisions of this Lease, law and local ordinance, the Lessee shall initially
design and construct on the Subject Property the Phase I Leasehold Improvements described in
the Phase I Development Construction Documents. Lessee agrees to undertake and complete the
development and construction of the Phase II Leasehold Improvements within ten (10) years of
the Possession Date. The Lessee may not modify and/or amend the Phase II Development
Construction Documents without the prior written consent of the City, which consent shall not be
unreasonably withheld if such modifications and/or amendments do not substantially or materially
alter the character of the Project.
Section 4.2. Lessee's Financial Obligations. It shall be the sole responsibility of the
Lessee to secure sufficient capital to construct the Leasehold Improvements in such a manner as
to meet its obligations under this Lease. Lessee hereby covenants that Lessee shall expend no less
than Five Hundred Thousand Dollars ($500,000) for the Total Construction Costs of the Phase I
Leasehold Improvements, no less than Thirteen Million Eight Hundred Thousand Dollars
($13,800,000) for the Total Construction Costs of the Phase II Leasehold Improvements. Lessee
agrees that in any event, during the Lease Term, Lessee shall invest no less than Twenty Six
Million Three Hundred Thousand Dollars ($26,300,000) for the Total Construction Costs of the
Leasehold Improvements.
Section 4.3. Delivery Of Possession Of Subject Property (the "Possession Date").
(a) The City shall deliver possession of Subject Property to Lessee, and Lessee shall
take possession thereof within thirty (30) days after the following shall have occurred:
(i) The City Manager shall have approved the Preliminary Construction
Documents for the Phase I Leasehold Improvements and Final Substructure Construction
Documents for the Leasehold Improvements to be constructed on the Subject Property; and
--�-�-�••`5 5 5.1
(ii) The City Manager shall have received and approved the commitment or
commitments for the construction and/or permanent financing of the Phase I Leasehold
Improvements to be constructed at the Subject Property, or such other evidence as may be
reasonably satisfactory to the City Manager that such financing has been committed or is available
which approval shall not be unreasonably withheld. The City Manager must approve such
financing if same is on terms prevailing in the then current market place in the United States.
(iii) The City has received the Environmental Condition Acceptance notification
from the Lessee.
The date that the City delivers possession of the Subject Property to Lessee in
accordance with this Section 4.1, by notice in writing, is herein called "Possession Date". Lessor
and Lessee agree to sign a Possession Date Certificate in the form of the certificate attached
hereto as Exhibit L.
(b) Lessee and the City 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 Mth
this Lease for an indefinite period of time during the period of satisfaction of the aforesaid
conditions precedent and that therefore:
(i) Any City review and/or approval required above shall be promptly
undertaken by the City, but in no event shall the period of time available to the City for such
review and/or approval exceed (..) days from receipt of the City of such request. In the event that
such review by the City 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
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available to the Lessee for such additional or remedial action exceed (..) days from receipt of the
City's request; and
(ii) Subject to unavoidable delay in connection with the Lessee's investigation
and evaluation of the existent and potential environmental liabilities at the Subject Property, either
party shall have the right to terminate this Lease if all of the aforesaid conditions precedent are not
satisfied or waived on or before six (6) months from the date of the execution of this Lease.
No waiver of any of the foregoing conditions precedent shall be implied by any conduct of
Lessor or Lessee, including (without limitation) any election by Lessee to proceed with any
development activity prior to the satisfaction of all of such conditions precedent, it being agreed
that any waiver by Lessee of any such condition precedent shall be effected only by Lessee's
express written statement to that effect delivered to the City or the City Manager and as to the
Lessor by Lessor's express written statement to that effect delivered to the Lessee.
(c) Lessee's Obligations Prior to Possession. 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 Section 20 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 Constraction Documents. Lessor agrees to cooperate fully and promptly
in the permitting process including, but not limited to, joining in any permit application if required
to do so.
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Section 4.4. Additional Security For Lessee's Construction Obligations. In connection
with the commencement and completion of construction of the Phase I Leasehold Improvements,
the Lessee further agrees with the Lessor as follows:
(a) Payment and Performance Bond or Letter of Credit. Prior to the commencement
of construction of the Phase I Leasehold Improvements, the Lessee, at Lessee's sole cost and
expense, shall obtain a Payment and Performance Bond or Letter of Credit.
i
(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 the total construction cost for the Phase
I Leasehold Improvements, naming the City as the owner and the Lessee as the principal
guaranteeing the payment and performance of Lessee's construction obligations hereunder, free of
mechanic's or other liens. The conditions of the payment and performance bond shall be to insure
that the Lessee will:
(i) promptly make payment to all claimants, as defined in §255.05 Florida
Statutes, 1995, 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
(ii) to pay the Lessor all losses, damages, expenses, costs, and attorneys fees,
including appellate proceedings, that the Lessor sustains because of a default by the Lessee under
the Lease Agreement; and
(iii) perform the guarantee of all Work and materials furnished under this Lease
.t
Agreement.
The payment and performance bond may be terminated at such time as the Phase I
Leasehold Improvements are completed as evidenced by the issuance of a Certificate of
Occupancy for the Phase I Leasehold Improvements and satisfactory evidence is provided by the
42 - 23 -ISG�
Lessee to the City Manager that all 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.
(c) The Letter of Credit in an amount equal to the total construction cost for the Phase
I Leasehold Improvements, must be issued by state or federal banking institution having its
principal office in the State of Florida and having capital and surplus of at least and
shall be in the form and content as approved by the City Attorney and the Finance Director of the
Lessor. The Letter of Credit shall insure the faithful performance by the Lessee of all its Phase I
construction obligations and compliance with all orders, permits and directions of any department,
division or office of the Lessor having jurisdiction over Lessee's acts in the construction of the
Phase I Leasehold Improvements. The Letter of Credit shall be renewed annually and shall be
maintained at the City's department of Finance during the entire term of construction and until a
Certificate of Occupancy is issued for the Phase I Leasehold Improvements.
(d) Deposit and Disbursement of Funds. The Lessee, from time to time, shall deposit
with its Construction Lender funds or securities reasonably satisfactory to the Lessor and the
Lender, which, with the remaining funds committed by the construction Lender, will be sufficient
to pay for the total construction costs of the Phase I Leasehold Improvements.
(e) The Lessee shall provide the Lessor once each month the following documents (or
a copy of same to Lessor; if the Construction Lender requires such documentation):
(i) Certificate of the Lessee's architect that those portions of the
Improvements completed are in substantial accordance with the Construction Documents
approved by the Lessor;
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t
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(ii) A certificate of the architect and the contractor that the funds and securities
deposited by the Lessee with the Construction Lender along with the remaining funds committed
by the construction Lender and available for the purpose will be sufficient upon the completion of
the Phase I Leasehold Improvements to pay for it in full and to obtain releases or waivers of the
contractor, subcontractors and any other persons furnishing work and materials discharging all
liens and claims for all work and materials furnished and similar releases from the architect or
other recipient in the case of payments out of the funds to the architect or other recipient.
(f) If the certificates of the architect shall at any time show that the sum of the funds
and securities on deposit with the construction Lender, after the making of any payment or
payments requested by the Lessee, plus the unpaid balance of the committed funds (as stated by
the construction Lender), shall not be equal to the estimated cost of completing the Phase I
Leasehold Improvements, the Lessee shall promptly deposit with the construction Lender
additional sums of money or securities reasonably satisfactory to the Lessor sufficient so that the
architect can certify that the balance of funds and securities so deposited along with the balance of
the funds required to be so advanced pursuant to the commitment of the construction Lender and
available for the purpose will be sufficient to complete the Phase I Leasehold Improvements and
pay for it in full.
(g) During the course of construction, Lessor and any Mortgagee, its architects,
engineers, agents and employees may enter upon at reasonable times and inspect the Subject
Property and the construction of the Phase I 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 and Mortgagee may examine the same at all reasonable times, and if required by them,
-25-IC"'A 15"`'
44
Lessee shall furnish them with copies thereof. 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 or with the Construction Documents and specifications and shall give
written notice to Lessee specifying in detail the particular deficiency or defect, Lessee shall
thereupon take such steps as are necessary to correct such deficiency or omission; provided,
however, if Lessee shall contend that Lessor is acting unreasonably in making any such
determination, the dispute shall be submitted to arbitration pursuant to Article XVII hereof unless
Lessor and Lessee agree in writing within fifteen (15) days from the arising of the dispute to be
bound by the decision of the Mortgagee's architect and submit the dispute to him for
determination.
Section 4.5. Time For Commencement And Completion Of Construction Of The
Phase I Leasehold Improvements. The Lessee agrees for itself, its permitted successors and
assigns, and every permitted successor in interest that, subject to Unavoidable Delays, the Lessee,
within one hundred eighty (180) days of the Possession Date shall promptly commence the
construction of the Phase I Leasehold Improvements. Within sixty (60) days after the Possession
Date, Lessee shall provide a timetable for completion of the Phase I Leasehold Improvements
which shall include a scheduled completion date which, subject to Unavoidable Delays and the
Permitted Delays must be no later than thirty (30) months from the Possession Date. In the event
of Unavoidable Delays, the date for commencement and/or the Scheduled Completion Date shall
-t
be correspondingly set back by the same number of days involved in the period of Unavoidable
Delays.
Section 4.6. Manner of Construction of Phase I Leasehold Improvements. The final
Construction Documents shall be submitted to the City Manager, for review to determine
compatibility with the Phase I Development Construction Documents. The City acknowledges
that, in order to meet the schedule for construction, the Lessee may be submitting Construction
Documents and other Construction Documents in stages for approval. Upon receipt of each
submission, the City Manager shall review the same and shall promptly (but in any event within
fifteen (15) days after such receipt), give Lessee notice of its approval or disapproval setting forth
in detail its reasons for any disapproval. The City Manager's right to disapprove the Construction
Documents submitted shall be limited to matters depicted in the Construction Documents which
do not conform substantially to the Phase I Development Construction Documents or previously
approve Construction Documents, or are new elements not presented in the Phase I Development
Construction Documents, or matters which are violations of this Lease or of applicable
governmental ordinances, codes, Construction Documents, laws or regulations.
If no response from the City is delivered to Lessee within thirty (30) days after the
submission, or any resubmission thereof as hereinafter provided, they shall be deemed approved,
except that no violations of applicable governmental ordinances, codes, Construction Documents,
laws, regulations or of this Lease shall be deemed waived thereby. In the event of a disapproval,
Lessee shall, within sixty (60) days after the date Lessee receives the notice of such disapproval,
resubmit such Construction Documents to the City Manager, altered to meet the grounds of
disapproval. Any resubmission shall be subject to review and approval by the City Manager, in
accordance with the procedure hereinabove provided for an original submission, until the same
shall be approved by the City Manager, provided that in any event Lessee shall submit all
Construction Documents for the construction of Phase I Leasehold Improvements which meet all
l
of the grounds for disapproval of which the City Manager has given notice not later than the first
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(1 st) anniversary of the date of this Lease. City and Lessee shall in good faith attempt to resolve
any disputes concerning the Construction Documents:
(1) The construction of the Infrastructure Improvements and the Public Amenities on
the Subject Property shall be in accordance with the Construction Documents approved by the
Director of Community Planning and Revitalization of the Lessor and this Lease.
(2) The construction of the Phase I Leasehold Improvements shall be performed in
accordance with the provisions of all applicable federal, state. and local laws, ordinances, rules,
regulations, and other legal requirements.
(3) The Construction Contract and all subcontracts for the construction of the Phase I
Leasehold Improvements shall provide, and the Lessee shall require, that before all interim and
final payments are made, all contractors and subcontractors execute and furnish waivers or
releases of lien and lien rights from all persons who have performed work and labor, furnished
services, or supplied equipment, materials or supplies in connection with the construction of the
Phase I Leasehold Improvements. The Lessee covenants and agrees that upon completion the
Phase I Leasehold Improvements shall be free of all mechanics and materialmen's liens and claims
and accordingly, the Lessee shall require and obtain any other form necessary to assure an
effective waiver or release of mechanics and materialmens liens and claims in compliance with the
laws of the State of Florida.
(4) In all events, the Lessee will pay and discharge all costs, expenses and liabilities
•R
whatsoever arising out of the construction of the Phase I Leasehold Improvements and will keep
the Lessor's interest in the Subject Property free and clear of any and all liens and claims in any
way arising out of the construction of the Phase I Leasehold Improvements on the Subject
Property.
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(5) After the Possession Date and during the construction of the Phase I Leasehold
Improvements the Lessee shall permit representatives of the Lessor access to the Subject Property
at all reasonable times as the Lessor deems necessary for purposes of this Lease Agreement
including, but not limited to, inspection of all work being performed in connection with the
construction of the Phase I Leasehold Improvements. Any such access and inspections shall not
interfere with the work being perform by or on behalf of the Lessee.
(6) In respect to the Lessee's use and occupation of the Subject Property (and the
subsurface of it) during the progress and period of construction, or by anyone acting under the
Lessee for all acts other than 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 property damage, personal injury and wrongful
death arising out of entry or construction and development of the Subject Property and the
Phase I Leasehold Improvements or in the performance of this Lease by the Lessee, its agents,
employees, contractors, subcontractors or invitees or as a result of any incident, fire or other
casualty in respect of the Subject Property, or any failure by the Lessee to keep the Subject
Property, or any improvements on it, in a safe condition, and furnish the Lessor with the form of
comprehensive general public liability insurance policy and fire and casualty policy for the
amounts and subject to the provisions described in Article XI below.
(7) Within 30 days after all of the foundations for the Phase I Leasehold
Improvements have been installed, the Lessee shall furnish the Lessor with a survey by a
registered land surveyor showing the foundations (including any caissons) to be within the
perimeter lines of the Subject Property. Within 90 days after completion of all of the Phase I
P
EAR
Leasehold Improvements, the Lessee shall furnish the Lessor with a final survey showing all
improvements constructed by the Lessee, for itself, to be withih the perimeter lines of the Subject
Property.
(8) The Lessee shall utilize its best efforts to provide that minority and female
contractors and subcontractors have the maximum practicable opportunity to compete for
contracts and work and shall utilize its best efforts to hire qualified construction firms and worker
from within the City of Miami.
Section 4.7. Manner Of Construction Of Leasehold Improvements And/Or Capital
Improvements After Completion Of Phase I. The construction of the Phase II Leasehold
Improvements and/or Capital Improvements undertaken by Lessee after the completion of the
Phase I Leasehold Improvements shall be performed in the manner described and in accordance
with and subject to the requirements set forth in Subsections 4.4, and 4.6 of this Article.
Section 4.8. Rights Of Access To Property. The Lessor reserves for itself and any
public utility company, as may be appropriate, the right of ingress to and egress from the Subject
Property at all reasonable times for the purposes of reconstructing, maintaining or servicing the
public utilities, if any, located within the boundary lines of the Subject Property provided,
however, that any entry shall, at all times, be conducted in a reasonable manner and without any
undue interruption or interference with the business and activities of the Lessee and any
Sublessees.
The Lessee shall not construct any permanent improvements over or within the boundary
lines of any recorded easement for public utilities unless permitted by the recorded easement or
agreement or unless previously approved by the provider of the applicable utility; the Lessor
agrees to cooperate with the Lessee in an attempt to obtain permission from any public or private
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1
agency or company to construct any permanent improvements over easements if and to the extent
required by the Lessee and necessary for better implementation of this Lease Agreement.
Section 4.9. Temporary Use Of Watson Island During Construction Of Leasehold
Improvements. From time to time, during construction of the Phase I Leasehold Improvements,
and upon written request by Lessee to Lessor, the City Manager and Lessee shall enter into a
Temporary Construction Easement whereby Lessor shall grant to Lessee, at no additional cost to
Lessee, the right and privilege of a Temporary Construction Easement(s) (hereinafter the
"Easements") on Watson Island outside of the Subject Property, with the right of ingress and
egress thereto, for use as a staging area for construction related to the Phase I Leasehold
Improvements. Lessor, at its sole discretion, shall designate the location of said Easements on
Watson Island.
Lessor further agrees that, subject to availability and upon written request by Lessee, the
City Manager and Lessee shall enter into a Temporary Construction Easement, whereby Lessor
shall grant Lessee the right and privilege of said Easement(s) on Watson Island, outside of the
Subject Property, with the right of ingress and egress thereto, for use as a staging area for
construction related to the Phase II Leasehold Improvements. Lessor, at its sole discretion, shall
designate the location of said Easement(s) on Watson Island.
ARTICLE d
RENT
' •i
Section 5.1 Amount Of Rent. The Lessee covenants that it shall pay to the Lessor as
Rent for the Subject Property the greater of
(a) Minimum Annual Rent for each calendar year during the Initial Term of forty-five
(45) years and the option to extend for one fifteen (15) year term an annual amount payable in
0
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twelve (12) equal installments, in advance, upon the first day of each and every month,
commencing on the Possession Date and continuing through out the Lease Term, with
adjustments to the Minimum Annual Rent to be made every 10 years as calculated from the end of
month forty-eight (48) of the Lease Term. In the event that the Possession Date does not fall on
the first day of the month, the rent due for that month will be prorated on a per diem basis for
each day of the first calendar month; as follows:
(i) $200,000 beginning month 1 through 24 from Date of Possession;
(ii) $300,000 beginning month 25 through 36 from Date of Possession;
(iii) $400,00 beginning month 37 and thereafter from Date of Possession; or
(b) the Percentage Rent in an amount equal to the following percentage of Gross
Revenues:
(i) 5% of gross revenues up to Twenty Million Dollars ($20,000,000), and
(ii) 6% of gross revenues in excess of Twenty Million Dollars ($20,000,000).
Within sixty (60) days after the end of the first calendar year of the Initial Term, Lessee shall
deliver to Lessor a statement of the Gross Revenues for the period of time commencing on the
Possession Date and ending on December 31 of the first calendar year of the Lease Term, signed
by a Certified Public Accountant along with the Percentage Rent, if any is due. Thereafter, within
sixty (60) days after the end of the every calendar year during the Initial Term, and the Extension
Term (if Lessee exercises its option to extend the Initial Term), Lessee shall deliver to Lessor a
statement of the Gross Revenues for the preceding calendar year, signed by a Certified Public
Accountant along with payment of the Percentage Rent, if any, which is due from Lessee to
Lessor for that preceding calendar year.
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Section 5.2. Rent Payment Deferral. The Lessee may defer the payment of the first
twenty four (24) installments of Minimum Annual Rent due tb the Lessor until the seventh (7th)
Lease Year (the "Deferred Rent"). Lessee shall pay the Deferred Rent in thirty six (36) equal
installments in years seven (7), eight (8) and nine (9) of the Lease Term.. The deferral of payment
of the Minimum Annual Rent or the payment by the Lessee of the Deferred Rent shall not affect
the payment or due date of any subsequent Minimum Annual Rent payment due to the Lessor.
Section 5.3. Rent Escalation. At the end of the first ten (10) years of the Initial Term,
and at ten (10) years intervals thereafter, throughout the rest of the Initial Term, and the
Extension Term (if Lessee exercises its option to extend the Initial Term), the Minimum Annual
Rent shall be increased as set forth in this Section 5.3 to reflect increases in the Consumer Price
Index. The index numbers referred to in Subparagraph (a), below, will be taken from this
consumer price index, except as set forth in Subparagraph (b), below:
(a) The adjustment to the Minimum Annual Rent shall be determined by multiplying
the Minimum Annual Rent in effect at the time of the adjustment by a fraction. The fraction will
have as a numerator the monthly index published immediately prior to the beginning of the
adjustment period. If the product of this multiplication is greater than the Minimum Annual Rent,
Lessee shall pay this greater amount yearly as the Minimum Annual Rent until the time of the next
rental adjustment as called for in this paragraph. Provided, however, that in no event shall the
increase ever exceed twenty percent 20% during an ten 10 year period. If the
percentage tYP ( ) g Y ( )Y
. Y
product of this multiplication is less than the Minimum Annual Rent, then in effect, there shall be
no adjustment in the Minimum Annual Rent, at that time, and Lessee shall pay the Minimum
Annual Rent then in effect, until the time of the next rental adjustment as called for in this
paragraph. In no event shall any rental adjustment called for in this paragraph result in a
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Minimum Annual Rent which is less than the Minimum Annual Rent in effect at the time of the
adjustment.
(b) If the CPI is discontinued during the Lease Term, the remaining rental adjustments
called for in this paragraph shall be made using the formula set forth in Subparagraph (a), above,
but substituting the index numbers for the statistics of the Bureau of Labor Statistics of the United
States Department of labor that are most nearly comparable. If the Bureau of Labor Statistics of
the United States Department of Labor ceases to exist or ceases to publish statistics concerning
the purchasing power of the consumer dollar during the Lease Term, the remaining rental
adjustments call for in this paragraph shall be made using the most nearly comparable statistics
published by a recognized financial authority selected by Lessor.
Section 5.4. Adjustment To Minimum Annual Rent In The Event of Extension. In the
event Lessee elects to extend the Initial Term, prior to the expiration of the Initial Term, the
parties shall cause to be made appraisals of the Fair Market Rent of the Subject Property
according to the following provisions:
(a) Appraisals shall be made at the Lessee's sole cost and expense by three real estate
appraisers, each of which (i) shall be a member of the American Institute of Real Estate
Appraisers and (ii) shall have not less than ten years experience in managing and appraising real
estate. One appraiser shall be appointed by the Lessor, one shall be appointed by the Lessee, and
the third shall be appointed by the first two appraisers so appointed, or, in the event of a failure of
the first two appraisers to agree on the third appraiser within fifteen (15) days after their
appointment, the third appraiser shall be appointed by the President of the Real Estate Board (or
its successor) on the application of either appraiser appointed by the Lessor or the Lessee on ten
(10) days notice to the other appraiser so appointed.
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(b) In the event either the Lessor or the Lessee shall fail to appoint an appraiser within
fifteen (15) days after demand from the other to make the appointment, then the appraiser
appointed by the party not in default shall appoint the second appraiser, and the two appraisers so
appointed shall appoint the third appraiser. If the first two appraisers so appointed shall fail to
agree on such third appraiser within fifteen (15) days after their appointment, the third appraiser
shall be appointed in the same manner provided in Subsection 5.4(a).
(c) After appointment, the three appraisers, after having been duly sworn to perform
their duties with impartiality, shall proceed promptly to prepare an appraisal of the Fair Market
Rent of the Subject Property. The Fair Market Rent determined by the appraisers shall be binding
and conclusive on the Lessor and the Lessee. The appraisers shall have the right, by majority vote
among them, to determine the procedure to be adopted in arriving at the Fair Market Rent, and
may, in their discretion, dispense with formal hearings, it being agreed that their task will be solely
that of appraisal.
(d) The cost of all appraisals made pursuant to this Article V shall be paid by Lessee.
(e) If prior to the expiration of the Initial Term the Fair Market Rent has not been
determined for any reason, the Lessee shall continue to pay Minimum Annual Rent at the rate in
effect for the year prior to the expiration date of the Initial Term. When the Fair Market Rent has
been determined, the Minimum Annual Rent will be adjusted as provided retroactively to
expiration date, and Lessee shall pay to Lessor with the next installment of Minimum Annual Rent
due the amount, if any, by which Minimum Annual Rent for the Extension Term, as adjusted,
exceeds Minimum Annual Rent that has been paid by Lessee for the retroactive period.
Section 5.5. Security Deposit. In addition to the Rent as described in this Section and
simultaneously with the execution of this Lease Agreement, the Lessee shall deposit with the
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54
Lessor One Hundred Thousand and no/100 Dollars ($100,000.00) as a security deposit (the
Security Deposit). The Security Deposit shall be placed by the Lessor in an interest bearing
account with all interest earned thereon being retained by Lessor until such time as the rent
adjustments are calculated in accordance with the provisions of Subsection 5.2. Commencing
with the rent adjustment occurring on the tenth (loth) anniversary from Date of Possession, and
on every subsequent rent adjustment thereafter, the Security Deposit shall also be adjusted as
follows:
(i) In the event that the rent adjustment results in an increase in the amount of
Minimum Annual Rent payable, then the Lessor shall retain from the total amount of interest
earned on the Security Deposit such amount as may be necessary to increase the Security Deposit
so that the Security Deposit will be an amount equal to fifty percent (50%) of the Minimum
Annual Rent in effect after the adjustment.
(ii) any excess over the amount needed to so increase the Security Deposit
shall be paid to the Lessee.
The Security Deposit shall be considered as security for the payment of all of Lessees
obligations, covenants and agreements under this Lease. Within thirty (30) days after either this
Lease expires or upon the earlier termination of this Lease Agreement (whichever applies), the
Lessor shall (provided that the Lessee is not in material default under the terms of this Lease)
return the Security Deposit to the Lessee less any portion that the Lessor shall have used to make
good any default of Lessee. In the event of any such default by the Lessee, Lessor shall have the
right, but shall not be obligated, to apply all or any portion of the Security Deposit to cure the
default, in which event the Lessee shall be obligated to deposit with the Lessor the amount
necessary to restore the Security Deposit to the amount in effect prior to the deduction.
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Section 5.6. Place Of Payment. The Lessee shall pay all Rent to Lessor in lawful money
of the United States of America at a place the Lessor shall from time to time designate by notice
to the Lessee, and in the absence of such designation at the office of the Lessor at City Hall.
Rents and all other sums payable to the Lessor under this Lease Agreement shall bear interest at
the rate equal to the Prime Interest Rate from and after thirty (30) days from the date when the
Rent shall become due and payable and until paid.
Section 5.7 Rent To Be Without Deduction Setoff Or Counterclaim. This Lease
Agreement shall be deemed and construed to be a triple net lease and the Lessor shall receive all
Rent and all other payments to be made by the Lessee free from any charges, assessments,
Impositions, expenses or deductions of any nature. The Lessor shall not be called upon to make
any expenditure for the maintenance, repair or preservation of the Leasehold Improvements.
With the exception of any setoff allowable under the terms of this Lease, in no event shall there be
any deduction of any nature from Rent due the Lessor and no defense, setoff or counterclaim shall
be made against Rent in any proceeding for the collection of Rent, or otherwise for the
enforcement of this Lease Agreement.
Section 5.8. Payment Of Rent In Event Of Loss Or Damage. In the event of loss or
damage to all or any part of the Leasehold Improvements or interruption of the Lessee's business
from any cause, the Lessee shall continue to pay the Rent required in Section 5.1.
Section 5.9. Alternative Rent Payment Schedule. Lessor agrees to evaluate the
proposal proffered by Lessee in connection with the disposition of the Parrot Jungle property
located in Pinecrest Florida, pertaining to an alternative rent payment schedule ("Alternative
Rent"). It is hereby agreed that if such Alternative Rent is not violative of any local, state, or
federal law or regulation, this Article may be modified in accordance with said Alternative Rent.
56
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ARTICLE VI
MORTGAGES AND MORTGAGEES
Section 6.1. Leasehold Mortgae.
(a) Notwithstanding the provisions set forth in Article VIII hereof regarding any
Assignment of this Lease, but subject to the provisions of this Article VI, provided that an Event
of Default has not occurred and is not continuing, Lessee shall have the right to any time and from
time to time to encumber the Lessee's Leasehold Estate created by this Lease and any
improvements by Mortgage, Sale-Subleaseback transaction, deed of trust or other security
instrument, including, without limitation, an assignment of the rents, issues and profits from the
Project to secure repayment of a loan or loans (and associated obligations) made to Lessee by a
Lender for the sole purpose of securing the financing of the construction of any Lessee
Improvements made pursuant to the terms of this Lease or for the long-term financing or
refinancing of any such improvements. In no event may the amount of such financing or
refinancing exceed the Total Construction Costs, or the Development Costs and Capital
Improvements made after the Phase I Leasehold Improvements. Lessee shall deliver to City
promptly after execution by Lessee a true and verified copy of any Leasehold Mortgage, or any
Financing Sublease and any amendment, modification or extension thereof, together with the
name and address of the owner and holder thereof. Lessee may not encumber the leasehold estate
created by this Lease as security for any indebtedness of Lessee with respect to any other property
now or hereinafter owned by Lessee except that Lessee may so encumber same as additional
security for a loan or loans granted to Lessee in connection with the Parking Improvements.
(b) During the continuance of any Leasehold Mortgage until such time as the lien of
any Leasehold Mortgage has been extinguished, and if a true and verified copy of such Leasehold
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Mortgage shall have been delivered to the City Manager together with a written notice of the
name and address of the owner and holder thereof as provided in Section 6.1(a) above:
(i) The City shall not agree to any mutual termination nor accept any
surrender of this Lease (except upon the expiration of the full term of this Lease) nor shall the
City consent to any material amendment or modification of this Lease or waive any rights or
consents it may be entitled to pursuant to the terms hereof, without the prior written consent of
Lender.
(ii) Notwithstanding any default by Lessee in the performance or observance of
any covenant, condition or agreement of this Lease on the part of Lessee to be performed or
observed, the City shall have no right to terminate this Lease even though an Event of Default
under this Lease shall have occurred and be continuing, unless and until the City Manager shall
have given Lender written notice of such Event of Default and Lender shall have failed to remedy
such default or to acquire Lessee's leasehold estate created hereby or to commence foreclosure or
other appropriate proceedings in the nature thereof, all as set forth in, and within the time
specified by, this Article VI.
(iii) Subject to the provisions of subparagraph (iv) immediately below, Lender
shall have the right, but not the obligation, at any time prior to termination of this Lease and
without payment of any penalty, to pay all of the rents due hereunder, to provide any insurance, to
pay any taxes and make any other payments, to make any repairs and improvements, to continue
•t
to construct and complete the Leasehold Improvements, and do any other act or thing required of
Lessee hereunder, and to do any act or thing which may be necessary and proper to be done in the
performance and observance of the covenants, conditions and agreements hereof to prevent the
termination of this Lease. All payments so made and all things so done and performed by Lender
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shall be as effective to prevent a termination of this Lease as the same would have been if made,
done and performed by Lessee instead of by Lender.
(iv) Should any Event of Default under this Lease occur, Lender shall have
sixty (60) days after receipt of notice from the City Manager setting forth the nature of such
Event of Default, to remedy same and, if the default is such that possession of the Project may be
reasonably necessary to remedy the default, Lender shall, within such sixty (60) day period,
commence and diligently prosecute a foreclosure action or such other proceeding as may be
necessary to enable Lender to obtain such possession, provided that (a) Lender shall have fully
cured any default in the payment of any monetary obligations of Lessee under this Lease within
such sixty (60) day or longer period and shall continue to pay currently such monetary obligations
as and when the same are due, (b) Lender shall within six (6) months of the date that it takes
possession of the Subject Property enter into an agreement on terms and conditions reasonably
acceptable to the City with an Acceptable Operator for the continued operation of the Project
(hereinafter called "Acceptable Operator's Agreement"), and (c) Lender shall have acquired
Lessee's leasehold estate created hereby or commenced foreclosure or other appropriate
proceedings in the nature thereof within such sixty (60) day period or prior thereto, and shall be
diligently and continuously prosecuting any such proceedings to completion. All rights of the City
Manager to terminate this Lease as the result of the occurrence of any such Event of Default shall
be subject to and conditioned upon the City Manager having first given Lender written notice of
such Event of Default and Lender having failed to remedy such default or acquire Lessee's
leasehold estate created hereby or commence foreclosure or other appropriate proceedings in the
nature thereof as set forth in and within the time period specified by this subparagraph (iv).
We
(v) An Event of Default under this Lease which in the nature thereof cannot be
remedied by Lender shall be deemed to be remedied if (a) within sixty (60) days after receiving
written notice from the City Manager setting forth the nature of such Event of Default, Lender
shall have acquired Lessee's leasehold estate created hereby or commenced foreclosure or other
appropriate proceedings in the nature thereof, (b) Lender shall diligently and continuously
prosecute any such proceedings to completion, (c) Lender shall have fully cured any default in the
payment of any monetary obligations of Developer under this Lease which do not require
possession of the Project within such sixty (60) days period and shall thereafter continue to
faithfully perform all such monetary obligations which do not require possession of the Project,
and (d) within six (6) months after Lender shall have gained possession of the Project, Lender
shall have entered into an Acceptable Operator's Agreement. Upon the taking of possession of the
Project by Lender, Lender shall perform all of the obligations of the Lessee hereunder as and
when the same are due except that a Lender shall not be bound by the provisions of Section
hereof. Notwithstanding the foregoing, the City agrees that Lender shall not be obligated to
complete construction of the Leasehold Improvements if Lender shall succeed to Lessee's estate
under this Lease. Any assignee or successor in interest to a Lender that has taken possession of
the Subject Property must, however, assume all of Lessee's obligations hereunder (except as set
forth in Section hereof), including, but not limited to, the construction obligation.
(vi) If the Lender is prohibited by any process or injunction issued by any court
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or by reason of any action by any court having jurisdiction of any bankruptcy, debtor
rehabilitation or insolvency proceedings involving Lessee from commencing or prosecuting
foreclosure or other appropriate proceedings in the nature thereof, the times specified in
subparagraphs (iv) and (v) above for commencing or prosecuting such foreclosure or other
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proceeding shall be extended for the period of such prohibition; provided that Lender shall have
fully cured any default in the payment of any monetary obligations of Lessee under this Lease and
shall continue to pay currently such monetary obligations as and when the same fall due, and
provided that Lender shall diligently attempt to remove any such prohibition.
(vii) The City Manager shall mail to Lender a duplicate copy by certified mail of
any and all notices which the City may from time to time give to or serve upon Lessee pursuant to
the provisions of this Lease;. and no notice by the City Manager to Lessee hereunder shall be
deemed to have been given unless and until a copy thereof has been mailed to Lender.
(viii) Foreclosure of a Leasehold Mortgage or any sale thereunder, whether by
judicial proceedings or by virtue of any power of sale contained in the Leasehold Mortgage, or
any conveyance of the leasehold estate created hereby from Lessee to Lender by virtue or in lieu
of the foreclosure or other appropriate proceedings in the nature thereof, shall not require the
consent of the City or constitute a breach of any provision of or a default under this Lease. Upon
such foreclosure, sale or conveyance, the City shall recognize Lender, or any other foreclosure
sale purchaser, as tenant hereunder except that all obligations on Lessee herein contained shall be
binding on the Lender only from and after the date that it shall take title to the Lessee's leasehold
estate unless otherwise in this Article VI provided; provided, that Lender or any such foreclosure
sale purchaser must enter into an Acceptable Operator's Agreement, within six (6) months of the
date of such foreclosure, sale or conveyance, and further, provided, that in the event there are two
or more Leasehold Mortgages or foreclosure sale purchasers (whether the same or different
Leasehold Mortgages), the City shall have no duty or obligation whatsoever to determine the
relative priorities of such Leasehold Mortgages or the rights of the different holders thereof
and/or foreclosure sale purchasers. In the event Lender subsequently assigns or transfers its
Sd-
interest under this Lease after acquiring the same by foreclosure or by an acceptance of a deed in
lieu of foreclosure or subsequently assigns or transfers its interest under any such new lease, and
in connection with any such assignment or transfer Lender takes back a mortgage or deed of trust
encumbering such leasehold interest to secure a portion of the purchase price given Leasehold
Mortgage as contemplated under this Section 6.1, Lender shall be entitled to receive the benefit of
this Article VI and any other provisions of this Lease intended for the benefit of the holder of a
Leasehold Mortgage. Any person or entity to whom this Lease or any such new lease is assigned
must either enter into or assume Lender's obligations under an Acceptable Operator's Agreement.
(ix) Should the City terminate this Lease by reason of any default by Lessee
hereunder, the City Manager shall give notice thereof to all Leasehold Mortgagees and the City
Manager shall, upon written request by Lender to the City Manager received within sixty (60)
days after such termination, execute and deliver a new lease of the Project to Lender for the
remainder of the term of this Lease with the same covenants, conditions and agreements (except
for any requirements which have been satisfied by Lessee prior to termination) as are contained
herein, provided, however, that the City's execution and delivery of such new lease of the Project
shall be made without representation or warranty of any kind or nature whatsoever, either express
or implied, including without limitation, any representation or warranty regarding title to the
Project or any Leasehold Improvements or the priority of such new lease (except as to actions
taken by the City during the period commencing on the date of termination of this Lease and
terminating on the date of such new lease). The City's delivery of any Leasehold Improvements to
Lender pursuant to such new lease shall be made without representation or warranty of any kind
or nature whatsoever, either express or implied; and Lender shall take any Leasehold
Improvements "as -is" in their then current condition (except as to any actions taken or
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r
improvements made by the City during such time as the Subject Property were not the subject of a
Lease). Upon execution and delivery of such new lease, Lender at its sole cost and expense, shall
be responsible for taking such action as shall be necessary to cancel and discharge this Lease and
to remove Lessee named herein and any other occupant (other than as allowed by the City) from
the Project. The City's obligation to enter into such new lease of the Subject Property with the
Lender shall be conditioned upon Lender having remedied and cured all monetary defaults
hereunder and having remedied and cured or has commenced and is diligently completing the cure
of all non -monetary defaults of Lessee susceptible to cure by any party other than by Lessee. If
the City receives written requests in accordance with the provisions of this Section 6.1 (ix) from
more than one Leasehold Mortgagee, the City shall only be required to deliver the new lease to
the Leasehold Mortgagee who is, among those Leasehold Mortgagees requesting a new lease, the
holder of the most junior Leasehold Mortgage, provided that such Leasehold Mortgagee shall, not
later than the execution of such new lease, either (x) pay in full the sums secured by any or all
Leasehold Mortgages which are prior in lien to the Leasehold Mortgage held by such Leasehold
Mortgagee, or (xx) agree to reinstate the liens of any or all Leasehold Mortgages which are prior
in lien to the Leasehold Mortgage held by such Leasehold Mortgagee with the same relative
priority as existed prior to the termination of this Lease. If any Leasehold Mortgage having the
right to a new lease pursuant to this Section 6.1, (ix) shall elect to enter into a new lease but shall
fail to do so or shall fail to take the action required above, the City shall so notify all other
Leasehold Mortgagees (if any) and shall afford such other Leasehold Mortgagee a period of sixty
(60) days from such notice within which to elect to obtain a new lease in accordance with the
provisions of this Section. Except for any liens reinstated pursuant to this Section, any new lease
entered into pursuant to this section shall be prior to any mortgage or other lien, charge or
encumbrance on the fee of the Leased Property or the improvements and shall have the same
relative priority in time and in right as this Lease and shall have the benefit of all of the right, title,
powers and privileges of Lessee hereunder in and to the Subject Property and the Leasehold
Improvements. At Lessee's request, the City will enter into an agreement with any Leasehold
Mortgagee granting to the Leasehold Mortgagee the rights set forth in this Article. If such new
lease is entered into pursuant hereto, the Lender shall be entitled to offset from the previous
rentals due the City under this Lease, the net operating profit, if any, made by the City during the
period that the City shall have operated the Project.
(x) City and Lessee shall cooperate in including in this Lease by suitable
amendment from time to time any provision which may be requested by any proposed Lender, or
may otherwise be reasonably necessary, to implement the provisions of this Article VI; provided,
however, that any such amendment shall not in any way affect the term hereby demised nor affect
adversely in any material respect any rights the City under this Lease.
(xi) All rights and benefits afforded to a Leasehold Mortgagee hereunder shall
also be afforded to a party providing financing to Lessee pursuant to a Financing Sublease.
Section 6.2. No Waiver Of Lessee's Obligations Or City's Rights. Nothing contained
herein or in any Leasehold Mortgage shall be deemed or construed to relieve Lessee from the full
and faithful observance and performance of its covenants, conditions and agreements contained
herein, or from any liability for the non -observance or non-performance thereof, or to require or
provide for the subordination to the lien of such Leasehold Mortgage of any estate, right, title or
interest of the City in or to the Project or this Lease. Nothing in this Lease Agreement shall be
deemed an agreement on the part of the Lessor to subordinate its fee simple interest in the Subject
Property to the lien of any permitted Leasehold Mortgage placed on the leasehold estate of the
Lessee in the Subject Property.
ARTICLE VII
ADDITIONAL CONDITIONS OF LEASE AGREEMENT
AND RESTRICTIONS UPON USE OF SUBJECT PROPERTY
Section 7.1. Certain Conditions Of Leasing. For the Lessee itself and every other
person who is a beneficiary of the Lessee or a permitted successor in interest in or to any part of
the Subject Property and who is able to control the use or leasing or sales of the Subject Property
this Lease Agreement, in addition to all other Permitted Exceptions, conditions and restrictions
described in this Lease Agreement or in any Exhibit to it, shall be subject to the following
covenants and agreements which shall run with the Subject Property:
(a) Devote the Subject Property only to those uses specified in this Lease Agreement
and allowed by applicable laws and ordinances; and
(b) Not discriminate in violation of any applicable federal, state or local laws,
ordinances or regulations upon the basis of race, color, religion, sex, or national origin in the sale,
lease or rental, or in the use or occupancy of the Subject Property, or any Improvements erected
or to be erected on it or on any part of it.
Section 7.2. Mitigation Of Impact On Adjacent Residential Areas. Lessee agrees to
comply with all applicable laws and ordinances in the operation of the business conducted by it
L
under this Lease which concern the control of disturbance to other residents from residential areas
proximate to the Subject Property. Lessee agrees to use its good faith efforts to include in its
Construction Documents, and in the operation of the Subject Property the following measures:
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(a) Design and evaluate all site lighting carefully to assure that light shields, cut-off
lens and internal aiming of fixtures is utilized to avoid off -site impacts;
(b) Except for trees or other vegetation and two (2) icons or towers, the Leasehold
Improvements constructed at the Subject Property should not exceed above a height of 55 feet
above flood criteria;
(c) At least 66-2/3 percent of the Subject Property is to be landscaped as open
gardens water, trails, exhibits, posing areas, parks and walkways;
(d) Mechanical equipment and major utility structures are to be screened from views
from upper level apartments in high rise structures located in residential areas proximate to the
Subject Property;
(e) Spectator bowls and other show locations are to be designed so that the
amplification of will be minimized to avoid offsite impact;
(f) Acoustical analysis of proposed roof structures or enclosing walls adjacent or a
part of such amplified sound venues are to be employed to further mitigate the projection of
sound impacts beyond the island;
(g) Confine the level of amplification to that which is adequate to conduct routine
shows for spectators that are part of the daily program of Parrot Jungle activities and below a
i
level that would project consistently beyond the Subject Property;
(h) Lessee agrees to retain the services of a sound engineer in conjunction with the
construction of the Phase I Leasehold Improvements to assist in the minimizing of the offsite
impact of sound;
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66 �5
(i) Additional landscaping and earth berms may be added to the north shoreline and
east boundaries of the Subject Property in the event it becomes necessary to help buffer the
Improvements from the residential areas proximate to the Subject Property;
0) Limit the frequency and timing of outdoor entertainment concerts or other events,
to eight per calendar month, which would attract a Iarge attendance and result in off -site noise
impacts.
Section 7.3. Restrictive Covenants. The restrictive covenants contained in paragraphs
(a) through (d) of this Section 7.3 are intended and designed to bind the Lessee and the City and
their respective successors and assigns and bind upon and run with the Subject Property and the
Adjacent Property (as the case may be) throughout the entire term of this Lease, including the
Extended Term and any new lease executed pursuant to the provisions of Sections 6.1 and 6.2.
The parties recognize, however, that the development and operation of the Subject Property and
the Leasehold Improvements in a manner which is in the best interest of both parties may from
time to time require the confirmation, clarification, amplification, or elaboration of this Lease in
order to deal adequately with circumstances which may not now be foreseen or anticipated by the
parties. The parties reserve unto themselves the right to enter into such interpretive,
implementing or confirmatory agreements from time to time as they may deem necessary or
desirable for any such purpose without obtaining the consent or approval of any person or entity
not a party to this Lease, except as may be expressly otherwise provided in this Lease or by law.
(a) Use Prohibitions With Respect to Casino Gambling.
Lessee agrees that if casino gambling shall in the future become legal in the City of
Miami, the Subject Property hereby demised shall not be used for casino gambling, or games of
chance or reward, unless:
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(i) lessee obtains the prior consent of the Lessor, which consent may be
withheld at the sole discretion of the Lessor;
(ii) if the Lessor consents, the parties shall in good faith negotiate an
appropriate modification or amendment to this Lease, permitting such use and providing for the
payment of by the Lessee to the Lessor, as additional rent, of an amount to be negotiated by the
parties.
(b) Other Prohibited Uses. Lessee hereby agrees that the Subject Property shall not be
used for the following activities: (i) jet skis concessions, (ii)
(c) Permitted Uses for Subject Property. The uses permitted on the Subject Property
are a botanical garden attraction providing for flora and fauna, open spaces, pathways, special
exhibit areas, related theme shows, interactive and educational environments, animal habitats,
related uses, retail, recreation, parking and office (provided that such office uses shall be limited
to management offices and other office uses commonly found in retail centers), banquet facilities
and related services, amphitheaters, special event facilities, boat landing and prepared food
concessions and related services. For the purpose of this Lease "retail" shall mean sale of any and
all commodities or services to the consumer, including (without limitation) restaurants, facilities
for the sale of food or beverages, merchandise, and services ancillary to attractions and/or
entertainment facilities similar to the Project.
(d) Use Pertaining to the Use of the Subject Property and the Adjacent Prop. The
parties acknowledge and agree that the Adjacent Property which is at the time of execution of this
Lease is devoted to non-commercial use and that, consequently, the manner in which such
Adjacent Property is or may be used from time to time will have a direct and material effect on the
use and value of the Subject Property and the Leasehold Improvements. In consideration of the
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foregoing and of the rentals reserved by it under this Lease, the City, as the owner of the Adjacent
Property, for itself, its successors and assigns, covenants and agrees with Lessee, its successors
and assigns that:
(i) The City will not permit any permanent use of the Adjacent Property which
would detract from the use of the Subject Property or which would materially obstruct the
northern view of Biscayne Bay from the subject Property.
(ii) The City will not, without first obtaining the written consent of the Lessee,
which consent shall not be unreasonably delayed or withheld, (1) construct any fence or barrier
between the Adjacent Property and the Subject Property, (2) make or permit substantial
permanent alteration in the Adjacent Property or permit any permanent structure on the Adjacent
Property which will substantially adversely affect the access to and from the Subject Property;
(iii) The City will coordinate its ongoing planning and implementation efforts
relating to the construction of improvements to and the use of Adjacent Property with Lessee so
that the making of improvements to and the use of such area will not materially adversely effect
the Lessee's and Subtenant's use and enjoyment of the Subject Property.
(e) Enforceability. It is intended and agreed hereby that the restrictive covenants
contained in this Section 7.3 shall be binding upon the City and the Lessee, their successors and
assigns, and any covenants running with the Land and successors in interest, as the case may be,
and shall be for the benefit and in favor of, and enforceable by, the City and Lessee respectively,
as the case may be; provided however, that such covenants shall be binding on Lessee, and the
City, and their respective successors in interest and assigns, only for such period as each shall
have (i) fee title to the Subject Property and the Adjacent Property or any part of either, as to the
City, and (ii) the leasehold estate herein demised to Lessee, as to Lessee.
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(�r'_ J�iB•l
Section 7.4. Shmaae. Lessee shall be permitted to install signage on Watson Island as
follows:
(i) Internal Signs pertaining to the Subject Property throughout Watson
Island;
(ii) One icon offsite, immediately adjacent to Subject Property, and
(iii) Directional signs in the right-of-way, subject to the approval of the State of
Florida.
The exact form of all signage shall be subject and in compliance with the requirements for
a Major Use Special Permit.
70,
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ARTICLE VIII
RESTRICTIONS ON
AND TRANSFERS OF SUBJECT PROPERTY
Section 8.1. Representations as to Development of the Project. The Lessee represents
and agrees for itself, and its permitted successors and assigns, that its leasing of the Subject
Property, and its other undertakings pursuant to this Lease Agreement are, and will be used,
solely for the uses generally described in the Statement of Background and Purpose, and this
Lease. The Lessee further recognizes that:
(a) the operational experience of the Lessee was given special consideration by the
Lessor in the selection process; and
(b) any direct or indirect transfer of interest in the Lessee or any other act or
transaction resulting in a change in the parties in control of the Lessee, is for practical purposes a
Transfer (as defined in Section 8.2 below) of the Lessee's Leasehold Interest; and
(c) the qualifications and identity of the Lessee and its present stockholders are of
particular concern to the community and the Lessor; and
(d) partially because of such qualifications and identity that the Lessor is entering into
this Lease.
Section 8.2. Definitions. As used herein, the term:
(a) "Transfer" means:
(i) any total or partial sale, assignment or conveyance (other than by a
Leasehold Mortgage or Financing Sublease) or any trust or power, or any transfer in any other
mode or form of or with respect to this Lease or of the Lessee's Leasehold Estate or any part
thereof or any interest therein, or any contract or agreement to do any of the same;
any transfer of more than fifty percent (50%) of the stock of Lessee or of
any Owner whereby control of the Corporation is changed other than an Owner whose shares are
publicly traded;
(iii) any merger, consolidation or sale or lease of all or substantially all of the
assets of Lessee or of any Owner, other than an owner whose shares are publicly traded; or.
(iv) any Sublease of the entire Subject Property to a single Subtenant or
Subtenants who are related in, their ownership, except for a Financing Sublease.
(b) "Owner" means:
(i) any person, firm, corporation or other entity which owns, directly or
indirectly, legally or beneficially, more than fifty percent (50%) of the stock of the Lessee, but
shall not include any shareholder of an Owner whose shares are publicly traded.
(c) "Owner whose shares are publicly traded" means an Owner:
(i) who has filed an effective registration statement with the Securities &
Exchange Commission (or its successor) with respect to the shares of any class of its voting stock
or of all classes of any other form of ownership interest which includes voting rights; and
(ii) whose voting stock and other form of ownership interest described in
clause (i) is listed for trading purposes on a securities exchange subject to the regulatory
jurisdiction of the Securities & Exchange Commission (or its successor) or is publicly traded over
the counter.
Section 8.3. Transfers. Except as permitted pursuant to subparagraphs (a) through (h)
hereof, no Transfer may be made, suffered or created by Lessee or any Owner. The following
Transfers shall be permitted hereunder:
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(a) Any Transfer by Leasehold Mortgage to an Institutional Investor or to an agent,
designee or nominee of an Institutional Investor which is wholly owned or controlled by an
Institutional Investor or pursuant to a Financing Sublease, pursuant to Article VI.
(b) Any Transfer directly resulting from the foreclosure of a Leasehold Mortgage or
the granting of a deed in lieu of foreclosure of a Leasehold Mortgage or any Transfer made by the
purchaser at foreclosure of a Leasehold Mortgage or by the grantee of a deed in lieu of
foreclosure of a Leasehold Mortgage, provided that such purchaser or grantee is an Institutional
Investor or an agent, designee or nominee of an Institutional Investor which is wholly owned or
controlled by an Institutional Investor, and that such purchaser or grantee within six (6) months
after taking possession of the Project, shall have entered into an Acceptable Operator's Agreement
as described in Subsection 8.3 (d) of this Agreement.
(c) Any Transfer directly resulting from a conveyance to a Lender/Lessor of the
Lessee's interest provided that such Transferee, within thirty (30) days after taking possession of
the Project, shall have entered into an Acceptable Operator's Agreement as described in
Subsection 8.3 (d) of this Agreement.
(d) From and after the date that the Project has been in operation for five (5) years
after the Opening Date, any Transfer to (i) an Acceptable Operator consented to by the City
Manager and City Commission or (ii) a purchaser having a good reputation and financial
resources in the reasonable opinion of the City Manager and the City Commission to own the
Project (an "Acceptable Purchaser") that shall have entered into an Acceptable Operators
Agreement with an Acceptable Operator.
(e) Any Transfer to a joint venture, general or limited partnership, joint stock
association or Massachusetts business trust, a substantial interest in which is held by Lessee and
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74
the other interests in which are held by an Institutional Investor or by such other persons, firms,
corporations, or other entities as to which the City Manager shall have given his approval in his
reasonable discretion, provided that, within thirty (30) days after gaining possession of the
Project, the Transferee shall have entered into an Acceptable Operator's Agreement as described
in Subsection 8.3 (d) of this Agreement.
(f) Any Transfer to an entity which is not an Owner, all of the stock or other form of
ownership interest of which is owned by an Owner.
(g) Any Transfer resulting from the death or dissolution of an Owner provided that
same does not result in the dissolution or termination of Lessee.
(h) Any Transfer by a stockholder of Lessee made for Estate Planning purposes.
The parties hereby acknowledge and agree that anything herein to the contrary
notwithstanding, the "going public" by Lessee, including, but not limited to, the filing of a
registration statement with the Securities & Exchange Commission, the creation of one or more
classes of stock and the offering of shares of stock to the public for purchase, shall not constitute
a Transfer hereunder and shall not require the consent of the City.
Any consent to a Transfer shall not waive any of the City's rights to consent to a
subsequent Transfer. Any Transfer made in violation of the terms hereof shall be null and void
and of no force and effect.
Section 8.4. Notice of Transfer, Information as to Shareholders.
(a) With respect to any Transfer which must be approved by the Lessor, Lessee shall
give or cause to be given to the Lessor written notice (including all information necessary for the
Lessor to make an evaluation of the proposed Acceptable Operator according to the requirements
of this Agreement) of any Transfer of which Lessee or its officers shall have knowledge, not less
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5 5.1
than sixty (60) days prior to any such proposed Transfer and the Lessor shall within thirty (30)
days of its receipt of such information, advise Lessee in writirig if it shall consent to same. If the
Lessor shall not consent to a Transfer, the City Manager shall state the reasons for such
disapproval in his notice to Lessee withholding his consent. If the City is not required to consent
to a Transfer pursuant to the terms hereof, Lessee shall notify the City in writing of same within
thirty (30) days after the date of Transfer.
(b) The Lessee shall reimburse Lessor's reasonable attorney's and other costs incurred
in review of the Transfer whether or not the Lessor consents.
(c) Lessee shall from time to time throughout the term of this Lease as the City shall
reasonably request, furnish the City with a complete statement, subscribed and sworn to by the
President or vice-president and the Secretary or Assistant Secretary of the Lessee, setting forth
the full names and addresses of holders of stock interests in Lessee and the extent of their
holdings, and in the event any other parties have a beneficial interest in such stock, their full
names and addresses and the extent of such interest as determined or indicated by the records of
Lessee. Notwithstanding the foregoing, the information required by this subparagraph (b) shall
not be required to be furnished with respect to the shareholders of any Owner whose shares are
publicly traded.
Section 8.5. Effectuation of Certain Permitted Transfers. No Transfer of the nature
described in subsections (d) and (e) of Section 8.3 shall be effective unless and until:
(a) all Rents, taxes, Impositions, insurance, permitting and other charges required to
be paid by the Lessee under this Lease Agreement shall be paid by the Lessee up to the date of
transfer and all other covenants and agreements to be kept and performed by the Lessee shall be
substantially complied with at the date of the transfer; and
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(b) the entity to which such Transfer is made, by instrument in writing reasonably
satisfactory to the City Manager and in form recordable among the land records, shall, for itself
and its successors and assigns, and especially for the benefit of the City, expressly assume all of
the obligations of Lessee under this Lease and agree to be subject to all conditions and restrictions
to which Lessee is subject; provided, however, that any Lender, Leasehold Mortgagee,
Lender/Lessor transferee shall not be required to assume any personal liability under this Lease
with respect to any matter arising prior or subsequent to the period of such transferee's actual
ownership of the leasehold estate created by this Lease (it being understood, nevertheless, that the
absence of any such liability for such matters shall not impair, impede or prejudice any other right
or remedy available to the City for default by Lessee).
Section 8.6. Subletting and Concessions. At the City's request, Lessee shall provide to
the City copies of all Subleases and Concession Agreements for the Project. Lessee shall have the
right to enter into Subleases and Concession Agreements of any part of the Subject Property or
Leasehold Improvements at any time and from time to time during the Initial Term of this Lease
and any Extended Term with such Subtenants Concessionaires and upon such terms and
conditions as Lessee shall, in its sole discretion, deem fit and proper. Lessee hereby agrees to
require its Sublessee and concessionaires to execute a statement in substantially the form attached
hereto as Exhibit M, acknowledging that they are familiar with the terms and conditions of this
Lease Agreement, and that they will abide by those terms and conditions.
.1
Section 8.7 Transfers of the City's Interest. At the Lessee's request, Lessor shall
provide the Lessee copies of any and all agreements or contracts pertaining to the total or partial
sale, assignment, conveyance, mortgage, trust or power, or other transfer in any mode or form of
or with respect to the City's reversionary or fee interest in the Subject Property or any part
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thereof or any interest therein or any contract or agreement to do any of the same, to any
purchaser, assignee, mortgagee, or trustee. Lessor hereby agrees to incorporate the terms and
conditions set forth in this Lease Agreement, or in any agreement or contract with such purchaser,
assignee, mortgagee, or trustee.
Section 8.8 Criteria for Consent for Assignments and/or Purchase of Subject Property.
Subject to the provisions of Section 8.4 respecting assignment or sale of the Subject Property, it is
expressly understood and agreed that Lessor may, in its sole and absolute discretion, withhold its
consent to any such assignment or sale or of all or any part of the Subject Property. Accordingly,
and without limiting the generality of the foregoing, Lessor may condition its consent to any
assignment or sale upon satisfaction of all or any of the following conditions:
(i) The net assets of the Assignee or Acceptable Purchaser immediately prior
to the assignment or sale shall not be less than the greater of the net assets of Lessee immediately
prior to the assignment or sale or the net assets of Lessee at the time of the signing of this Lease;
(ii) Such assignment or sale shall not adversely affect the quality and type of
business operation which Lessee has conducted theretofore;
(iii) Such Assignee or Acceptable Purchaser shall possess qualifications for the
Lessee's business substantially equivalent to those of Lessee and shall have demonstrated
recognized experience in successfully operating such a business, including, without limitation,
experience in successfully operating a similar quality business;
(iv) Such Assignee or Acceptable Purchaser shall continue to operate the
business conducted in the Subject Property under the same Lessee Trade Name, in the same
manner as Lessee and pursuant to all the provisions of this Lease;
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(v) Such Assignee or Acceptable Purchaser shall assume in writing, in a form .
acceptable to Lessor, all of Lessee's obligations hereunder and Lessee shall provide Lessor with a
copy of such assignment or sale;
(vi) Lessee shall pay to Lessor an assignment or sale fee of One Thousand
Dollars ($1,000.00) prior to the effective date of the assignment or sale in order to reimburse
Lessor for all of its internal costs and expenses incurred with respect to the assignment or sale,
including, without limitation, .costs incurred in connection with the review of financial materials,
meetings with representatives of Assignee or Acceptable Purchaser and preparation, review,
approval and execution of the required assignment documents, and, in addition, Lessee shall
reimburse Lessor for any out-of-pocket costs and expenses incurred with respect to such
assignment or sale;
(vii) With respect to an assignment, Lessee to which the Subject Property was
initially leased, shall continue to remain liable under this Lease for the performance of all terms,
including, but not limited to, payment of Rent due under this Lease;
(viii) With respect to an assignment, Lessee's guarantor, if any, shall continue to
remain liable under the terms of the guaranty of this Lease and, if Lessor deems it necessary, such
guarantor shall execute such documents necessary to insure the continuation of its guaranty;
(x) Lessor shall receive upon execution of its consent any due, but unpaid
Rental, and an amount equal to six percent (6%) of any and all consideration paid or agreed to be
paid, directly or indirectly, to Lessee for such assignment or for the sale of Lessee's business in
connection with which any such assignment or sale is made; and
(xi) Each of Lessee's Mortgagees shall have consented in writing to such
assignment or sale.
M
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Section 8.9. Acceptance of Rent from Transferee. The acceptance by Lessor of the
payment of Rent following any assignment or other transfer prohibited by this Article shall not be
deemed to be a consent by Lessor to any such assignment or other transfer, nor shall the same be
deemed to be a waiver of any right or remedy of Lessor hereunder.
ARTICLE IX
EASEMENTS
Section 9.1. Easements. The Lessor reserves to itself and to any public utility company
the following permanent and perpetual rights in and to the Subject Property and the Public
Improvements: For the respective interests of the Lessor and any public utility company in, to,
over, under and across the Subject Property, as applicable, reasonable rights of ingress and egress
to and from interests and areas necessary for the installation, operation, maintenance, repair,
replacement, relocation, and removal of water lines, sanitary and storm sewers, gas mains,
electrical power lines, telephone lines and other utility lines and facilities, provided that the
exercise of any entry and other rights under this reciprocal easement grant shall not unreasonably
interfere with the use and enjoyment by any party of interests, sites or areas or by anyone claiming
by, through or under this party. At the time of execution, the Lessor has no knowledge of the
existence of any private easements upon the Subject Property not of public record.
Section 9.2 (a) Existing Easements. The following easements presently exist:
(i) the easement for
and designated as the "
(ii) the
Exhibit F;
It
on Exhibit F hereto;
designated as the
more particularly shown
on
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.E
(iii) such other easements as are described on Exhibit E,
(b) Easements Granted to Lessee. The City grants unto Lessee, its successors and
assigns the following:
(i) the non-exclusive right and easement (the "Lessee Utility Easement") to
install, maintain, repair and replace utility facilities such as water, gas, electric, and telephone lines
and storm and sanitary sewers underground witlun portions of Watson Island which is not a
dedicated street, in the location shown therefore on the approved Construction Construction
Documents or in such other locations as may be approved by the City Manager from time to time;
(ii) the non-exclusive right and easement (the "Lessee Vehicular Access
Easement") for the unobstructed access by service and emergency vehicles to and from the
Subject Property to MacArthur Causeway going west under the MacArthur Causeway to
MacArthur Causeway going East and in the locations shown therefor on Exhibit F or such other
locations as may be approved by the City Manager from time to time;
(iii) the non-exclusive right to use portions of Watson Island in common with
the public, subject to the City's right to restrict area in the Watson Island for reasonable periods
during special events, for the unobstructed pedestrian access to and from the Subject Property by
Lessee and the Subtenants and their respective concessionaires, licensees, officers, employees,
agents, customers and invitees to all of the Watson Island now and hereafter existing including,
but not limited to the baywalks, sidewalks and other open spaces;
(iv) the right and easement to install and maintain such footings and
underground supports along the boundaries of the Subject Property extending not more than six
(6) inches under and into the Watson Island, as shall be necessary in connection with the
0
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.I
construction of the Leasehold Improvements and as shall be shown on the approved Construction
Documents;
(v) the right and easement to enter onto those portions of the Watson Island
for the purpose of performing maintenance and repairs to the Improvements; and
(vi) non-exclusive rights and easements for installation, maintenance, repair and
replacement of utility facilities and for pedestrian and vehicular access to and from the Adjacent
Property to the Subject Property at such locations as may be approved by the City Manager from
time to time.
It is the intent of this Agreement that the Leasehold Improvements be confined to
the limits of the Subject Property.
(c) Duration of Easements. Unless a shorter term is provided, each of the rights and
easements granted or reserved in paragraphs (a) and (b) of this Section 7.4 shall be for the Initial
Term of this Lease, for each Extended Term, and for the term of any new lease made pursuant to
the provisions of Sections 6.1 and 6.2.
(d) Confirmatory Instruments. Each party covenants and agrees that from time to
time at the request of the other party, it shall execute and deliver such additional documents or
instruments confirming the rights and easements granted and reserved in this Section 7.4 or more
precisely fixing their location as such requesting party shall deem to be necessary or desirable.
The City Manager is hereby authorized and empowered on behalf of the City to execute and
deliver, from time to time, any such confirmatory documents or instruments.
ARTICLE X
PAYMENT OF TAXES, ASSESSMENTS AND OTHER IMPOSITIONS
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Section 10.1. Payment of Ad Valorem Taxes. Lessee agrees that in the event the
Property or any interest thereon becomes subject to ad valorerii taxation, Lessee shall enroll in the
Dade County Ad Valorem Tax Payment Plan. Failure to enroll in said plan or to make payments
in accordance with said Plan shall be a default of this Lease. In the event such Plan is
discontinued, the City Manager and Lessee shall develop a method to insure the monthly or
quarterly payment of such taxes.
Section 10.2. Payment of Impositions. The Lessee agrees to pay or cause to be paid as
additional Rent, before any fine, penalty or interest is added for nonpayment, all real estate taxes
or other ad valorem taxes on tangible property, assessments, water rates and charges and other
governmental charges, general and special, ordinary and extraordinary, unforeseen as well as
foreseen, of any kind and nature whatsoever, including but not limited to assessments for public
improvements or benefits, which are assessed, levied, confirmed, imposed or become a lien upon
the Subject Property and all of the Leasehold Improvements (expressly excluding the
Infrastructure and Public Improvements) and any or all of them during the term of this
Agreement, except as otherwise provided for in this Section 10.2.
If by law any Imposition is payable or may at the option of the taxpayer be paid in
installments (whether or not interest shall accrue on the unpaid balance of the Imposition), the
Lessee may pay the same (and any accrued interest on the unpaid balance of the Imposition), in
installments as they respectively become due and 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 within the terms of this Lease Agreement
and a part of which is included in a period of time after the termination of the term of this Lease
Agreement shall be adjusted as between the Lessor and the Lessee as of the termination of the
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term of this Lease Agreement, 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.
With respect to any Imposition for Public Improvements or benefits which by law is
payable either in total, or at the option of the taxpayer may be paid in installments, the Lessor
shall pay the installments which become due and payable subsequent to the termination of the
Lease Term and the Lessee shall pay those installments which become due and payable during the
Lease Term (with the parties prorating any installment covering a portion of the Lease Term and a
period of time after the expiration of the Lease Term).
Section 10.3. Proof of Payment. The Lessee shall furnish to Lessor, within 30 days after
the date whenever any Imposition is payable by or in behalf of the Lessee, official receipts of the
appropriate taxing authority, photocopies or other proof satisfactory to the Lessor, evidencing the
payment. If the Lessor shall have paid any Imposition, it shall promptly provide the Lessee with a
photocopy of each receipt and shall lend and permit the Lessee to retain the original receipt until
its retention shall no longer be required by the Lessee.
Section 10.4. Lessee's Right to Contest Taxes. Anything herein to the contrary
notwithstanding, Lessee shall have and retain the right to contest any real estate tax or other ad
valorem tax on tangible property, assessments, water rates and charges and other governmental
charges, general and special, ordinary and extraordinary, including but not limited to assessments
L
for public improvements or benefits which are assessed, levied, confirmed, imposed or become a
lien upon the Subject Property and/or the Leasehold Improvements, or any valuation in
connection therewith, without the consent of Lessor, and even if the same ultimately results in the
payment of any interest, costs or penalties. Any such contest shall delay the time periods set forth
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Catt S �' 83
in Sections 10.1 and 10.2 above. In the event Lessee appeals an ad valorem tax or the assessment
value, Lessee shall immediately notify Lessor of its intention to appeal said tax and shall pay,
under protest, the full amount of taxes alleged to be owed by Dade County.
ARTICLE XI
INSURANCE
Section 11.1. Insurance on the Leasehold Improvements. The Lessee shall, at the
Lessee's sole cost and expense but for the benefit of the Lessor and the Lessee as their interests
may appear maintain the following insurance:
(a) Fire and extended coverage insurance on the Leasehold in an amount which shall
be sufficient to prevent the Lessor or the Lessee from becoming coinsurers (determined in
accordance with the provisions of any insurance policy then in effect) of any loss (but in no event
in an amount less than one Hundred (100%) percent of the replacement cost of the Leasehold
Improvements exclusive of foundation and excavation costs with a maximum deductible at the
commencement of the Lease Agreement of Fifty Thousand Dollars ($50,000.00) (subject to
annual increases based upon increases in the Consumer Price Index, from the commencement of
the Initial Term to each anniversary), protecting against loss or damage by: (i) fire and lightning;
(ii) the risks commonly included within the term extended coverage (including but not limited to
windstorm, hail, explosion, riot, riot attending a strike, civil commotion, aircraft, vehicles and
smoke); and (iii) vandalism and malicious mischief, all as these terms are used in insurance policies
.t
from time to time issued by insurance companies licensed to do business by the State of Florida.
The replacement cost of the Leasehold Improvements exclusive of foundation and
excavation costs shall be adjusted every five (5) years during the Lease Term by application of the
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01
Consumer Price Index from the Commencement of the Term to each fifth (5th) year anniversary
date thereof.
In lieu of the above insurance coverage, the Lessee may obtain All Risk coverage,
provided only that this coverage is at least as large in amount and as broad in coverage as the
foregoing and that the form of the coverage is first approved in writing by the Lessor.
During the construction of the Leasehold Improvements, Lessee shall carry or cause to be
carried Worker's Compensation Insurance and any such other insurance as may be required by law
to be carried by Lessor and Lessee or either of them in connection with the construction.
(b) Boiler and machinery insurance covering repair and replacement of all boilers and
machinery serving or benefiting the Leasehold Improvements, the policies of insurance to be
endorsed so as to provide use and occupancy coverage for the Leasehold Improvements in the
same amount of insurance required to be carried under Section
(c) Business Interruption insurance in the limits of which insurance shall not be less
than the annual rental payment to Lessor and the debt service payment for the Lease or
Improvements.
Section 11.2. Other Insurance To Be Carried. The Lessee shall also, at the Lessee's sole
cost and expense but for the mutual benefit of the Lessor and the Lessee (with Leasehold
Mortgage clauses for the benefit of any Leasehold Mortgagee, which clauses shall be subject to
and not inconsistent with the terms of this Lease Agreement), maintain the following insurance:
.t
(a) Comprehensive general public liability and property damage insurance, including
but not limited to elevator (if elevator is located in any of the Leasehold Improvements and, host
liquor and products liability coverage, protecting and indemnifying the Lessor, the Lessee against
any and all claims for bodily injury, sickness, disease or death or for damage or injury to or
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W.
destruction of property (including loss of use) arising out of ownership, maintenance or use of the
Leasehold Improvements on the Subject Property, the limits of which insurance shall be not less
than One Million ($1,000,000) (subject to annual increases based upon increases in the Consumer
Price Index, from the commencement date to each anniversary) in respect of bodily injury,
sickness, disease or death of any one person resulting from any occurrence, Five Hundred
Thousand Dollars ($500,000) (subject to annual increases based upon increases in the Consumer
Price Index, from the commencement date to each anniversary) in respect of damage or injury to
or destruction of property from any one occurrence, and an excess umbrella policy (providing
insurance in respect of the risks above described for liability in excess of the limits specified above
for these risks). The limits of the excess umbrella policy required shall not be less than a
combined single limit of Five Million Dollars ($5,000,000) (subject to annual increases based
upon increases in the Consumer Price Index from the commencement date to each anniversary).
(b) During periods of excavation and/or construction or during periods of alteration or
during periods of restoration in the event of damage or destruction or condemnation or during
periods of razing or demolition at, in or on the Subject Property, the Improvements or any part of
it, All Risk Builders Risk insurance in an to be determined at such time.
(c) In the event that any other type of legislation may be enacted imposing special
liability upon the owner of property by virtue of its use for any special purposes, before the Lessee
shall so use the Leasehold Improvements or any part of it, the Lessee shall provide insurance in
form and substance and with insurers and limits reasonably satisfactory to the Lessor and meeting
commercial standards insuring the interests of the Lessor and the Lessee.
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L919-1-�'
The excess umbrella policy designated in Subsection (a) of this Section 11.2 shall be so
endorsed (to the extent this insurance is available in normal channels) to provide coverage for
losses in excess of the limits set forth in Subsection (d) of this Section 11.2.
(d) The Lessor reserves the right to amend the herein insurance requirements by the
issuance of a notice in writing to Lessee, to include, but not limited to any other insurance or
security as deemed reasonable for the class and types of operation.
Section 11.3. Delivery of Insurance Policies. All public liability, Workers compensation
and employers liability policies shall be retained by the Lessee.
Except as otherwise specifically provided, all other policies of insurance required to be
furnished shall be held by and be payable jointly to the Lessor and the Lessee with the proceeds to
be distributed in accordance with the terms of this Lease. Insurance company certificates
evidencing the existence of all of these policies of insurance shall be delivered to the Lessor. All
policies of insurance required to be provided and obtained shall provide that they shall not be
amended or canceled on less than 30 days prior written notice to the Lessor and all insured and
beneficiaries of the policies. The Lessor shall have no obligation to pay premiums or make
contributions to the insuring company or any other person.
Upon the execution and delivery of this Lease and then not less than 30 days prior to the
expiration date of any policy required to be carried pursuant to this Article, the Lessee shall
deliver to the Lessor and the holder of any Leasehold Mortgage the applicable respective policies
or insurance company certificates evidencing all policies of insurance and renewals required to be
furnished.
Section 11.4. Adjustment of Loss. Subject to the requirements of any Leasehold
Mortgagee, all insurance proceeds recovered on account of any damage or destruction by any
M.
casualty shall be made available for the payment of the cost of the repairs and restoration. If the
amount of the insurance proceeds plus the amount of any deductible applicable to said damage or
destruction is less than One Million Dollars ($1,000,000.00) subject to annual increases based
upon increases in the Consumer Price Index from the commencement of the Term to each
anniversary date, the insurance proceeds may be paid over to the Lessee to be applied to such
repairs and restoration work. If the amount of the insurance proceeds plus the amount of any such
deductible is greater than One Million Dollars ($1,000,000.00) subject to annual increases based
upon increases in the Consumer Price Index from the commencement date of the Term to each
anniversary date, the insurance proceeds shall be deposited in escrow with instructions to the
escrow holder that the escrow holder shall disburse the funds to the Lessee as the work of repair
and restoration progresses upon certificates of the architect or engineer supervising the repair and
restoration work that the disbursements then requested, plus all previous disbursements made
from such insurance proceeds, plus the amount of any deductible, do not exceed the cost of the
repairs or restoration work already completed and paid for, and that the balance in the escrow
fund is sufficient to pay for the reasonably estimated cost of completing the required work of
repair and restoration. The escrow holder may be the lender holding the Lease Mortgage if such
lender accepts said escrow; otherwise the escrow holder shall be any bank mutually agreeable to
Lessor and Lessee. If the amount of the insurance proceeds is less than the cost of the required
repairs or restoration work, then Lessee shall pay the excess cost; and if the amount of the
L
insurance proceeds is greater than the cost of the required repairs and restoration work, then the
excess shall be paid to and belong to the Lessee.
Section 11.5. Insurer To Be Approved -Premium Receipts. All policies of insurance of
the character described in Sections 11.1 and 11.2 shall be written in companies of recognized
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responsibility reasonably acceptable to the Lessor . On request by the Lessor, the Lessee shall
provide photocopies of receipts showing the payment of premium for all insurance policies
required to be maintained by this Lease Agreement,
Section 11.6. Waiver of Subrogation. Whenever: (i) any loss, cost, damage or expense
resulting from fire, explosion or any other casualty or occurrence is incurred by either of the
parties to this Lease Agreement, or anyone claiming under it in connection with the Subject
Property, and (ii) the party is then covered in whole or in part by insurance with respect to loss,
cost, damage or expense, then the party so insured (or so required) releases the other party from
any liability the other party may have on account of the loss, cost, damage or expense to the
extent of any amount recovered by reason of and waives any right of subrogation which might
otherwise exist in or accrue to any person on account of it, provided that the release of liability
and waiver of the right of subrogation shall not be operative in any case where the effect thereof
is to invalidate such insurance coverage or increase the cost thereof (provided that in the case of
increased cost, the other party shall have the right, within 30 days following written notice, to pay
the increased cost keeping the release and waiver in full force and effect).
ARTICLE XII
TITLE
Section 12.1. Title of Leased Property. The City represents, covenants and warrants that
it has good and merchantable fee simple title to the Subject Property and all of the improvements
.ti
thereon, which title is free and clear from all covenants, easements, liens, clouds of title or other
restrictions except for those listed in Exhibit E.
ARTICLE XM
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USE OF THE SUBJECT PROPERTY AND THE LEASEHOLD IMPROVEMENTS
Section 13.1. Limited Representations by Lessor.
(a) Lessor makes the following representations, covenants and warranties which shall
survive the execution of this Lease and the taking of possession of the Subject Property by the
Lessee:
(i) The Lessor does not know of any latent or hidden defects affecting the
Subject Property or the uses contemplated by this Lease; and
(ii) The Lessor does not know of any surface, ground or underground
environmental waste or contamination or storage thereof nor any violation of any "Environmental
Laws" (as such term is defined in Section 20.1(a) of this Lease).
(b) Prior to the Possession Date, Lessee, at its sole cost and expense but with Lessor's
cooperation, shall have the right, but not the obligation, to cause a Phase I environmental audit,
and if warranted by the Phase I findings, a Phase II environmental audit of the Subject Property.
If any environmental waste, contamination or violations of any Environmental Laws are revealed
by the Phase I and/or Phase II environmental audits, the parties shall proceed as provided for in
Article 20 of this Lease.
(c) The Lessee acknowledges that it has examined the Subject Property (except for
hidden or latent defects and environmental matters) and knows the condition of them and, subject
to the provisions of paragraph (a) and (b) above will accept them in their present condition and
_
without any additional representations or warranties of any kind or nature whatsoever by the
Lessor as to their condition or as to the use or occupancy which may be made of them. The
Lessee assumes the sole responsibility for the condition and demolition of the present
improvements and other structures located on the Subject Property in order that Lessee may
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a
construct, operate, maintain and manage the Leasehold Improvements upon the Subject Property
and the Lessor shall not be required at any time to furnish any facilities or services to the Subject
Property or, except as provided for in subparagraph 13.1(b) above, to make any repairs,
replacements, changes (structural or otherwise), additions or alterations to the Subject Property,
the Leasehold Improvements and, or any other property of any kind demised by this Lease.
Section 13.2. The Improvements to be Open to Public. The Lessee covenants that the
Improvements which are not. restricted to operational, environmental or other like purpose, shall
be open to admission to the general public without discrimination, at such times and hours as shall
be prescribed by the Lessee in its sole discretion upon payment of such admission charge as may
be charged by Lessee in its sole discretion.
Section 13.3. Compliance with Laws. The Lessee shall throughout the Lease Term, at
the Lessee's sole expense, promptly comply with all the laws and ordinances and the orders, rules,
regulations and requirements of all federal, state and municipal governments and appropriate
departments, commissions, boards and officers (whether or not the same require structural repairs
or alterations) and all other legal requirements, which may be applicable from time to time to the
use of the Subject Property or the Leasehold Improvements. The Lessee shall likewise observe
and comply with the requirements of all policies of public liability, fire and all other policies of
insurance at any time in force with respect to the Improvements.
Section 13.4. Right to Contest Compliance. The Lessee shall have the right to contest by
appropriate legal proceeding, without cost or expense to the Lessor, the validity of any Legal
Requirement of the nature referred to, and if by the terms of any legal requirement compliance
may legally be held in abeyance without the incidence of any lien, charge or liability of any kind
against the title to the Subject Property, the Lessee's leasehold estate and without subjecting the
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Lessee or the Lessor to any liability of whatsoever nature for failure so to comply, the Lessee may
postpone compliance until the final determination of any proceedings, provided that all
proceedings shall be prosecuted with all due diligence and dispatch..
Section 13.5. Use of the Subject Property. The Lessee shall use the Subject Property for
the uses permitted by this Lease., and develop, and continuously operate and manage, during the
Lease Term and the Extension Term (if Lessee exercises the option), the Leasehold
Improvements so as to provide a family entertainment attraction that promotes wholesome family
fun and appreciation of nature; contributes to the economic prosperity of the community;
promotes the unique culture and history of Miami and South Florida to visitors from around the
world and offers an outstanding recreational facility to local residents.
Section 13.6. Parking. The Lessee is to construct, operate and maintain, at Lessee's sole
cost and expense, a parking deck to be located on the Subject Property, adjacent to the main
entrance for 500 cars (the "Parking Deck") and in addition secondary or overflow parking as
indicated below.
Section 13.7. Future Parking Requirements. In the event that the parking provided at the
Parking Deck is not sufficient to comply with zoning requirements, then the Lessor shall provide a
site on the Southside of Watson Island of sufficient capacity to provide the additional parking
required by the zoning regulations ("Lessee's Mite Parking Requirements"). The Lessee shall
pay all costs incurred by Lessor in connection with the construction, operation and maintenance
of Lessee's Mite Parking Requirements.
Section 13.8. Ichimura-Miami Japanese Garden and Brown House. The Lessee shall be
responsible for making the following improvements:
a
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92
(a) Ichimura-Miami Japanese Garden. Lessee shall be responsible for all costs
associated with the relocation, design and construction of the Ichimura-Miami Japanese Garden
site on Watson Island; however, the relocation site, design and construction schedule are subject
to prior review and approval by the City Manager. It is hereby agreed that the issuance of the
Certificate of Occupancy for the Japanese Gardens shall coincide with the issuance of the
Certificate of Occupancy for phase I of the Leasehold Improvements.
(b) Brown House.
ARTICLE XIV
REPAIRS, MAINTENANCE AND IMPROVEMENTS
Section 14.1. Repair of The Leasehold Improvements. The Lessee shall throughout the
term of this Lease, at the Lessee's sole expense, maintain in good, clean and orderly condition and
repair the Leasehold Improvements on the Subject Property. The Lessee shall promptly, at the
Lessee's own expense, make to the Leasehold Improvements all necessary repairs, renewals and
replacements, interior and exterior, structural and nonstructural, whether made necessary or
caused by fire or other casualty or by ordinary wear and tear. All repairs, renewals and
replacements shall be of good quality sufficient for the proper maintenance and operation of the
Leasehold Improvements and shall be constructed and installed in compliance with all legal
requirements of all governmental authorities having jurisdiction. The Lessee, further, shall not
permit the accumulation of waste or refuse matter, nor permit anything to be done upon the
Subject Property or the Leasehold Improvements which would invalidate or prevent the
procurement of all insurance policies which may at any time be required pursuant to the
provisions of Article M. All proceeds of insurance on account of any loss or damage shall, to the
extent required, be applied on the cost of any repairs, renewals and replacements as provided for
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in this Article XIV. Nothing contained in this Lease shall impose on the Lessor the obligation to
make any repairs or expend any monies for the maintenance of the Subject Property or the
renewal, replacement or repair of the Leasehold Improvements.
Section 14.2. Control Over Repairs. No consent of Lessor shall be required as to any
repairs, except that permits shall be obtained as required in Article IV.
Section 14.3. Removal of Dangerous Conditions. The Lessee shall during the term of
this Lease, at the Lessee's sole expense, do all things necessary to remove any dangerous
condition from time to time existing on the Subject Property including (without limiting the
generality of the foregoing) promptly taking appropriate measures to prevent or repair any
erosion, collapse or other unstable condition of the Subject Property. The Lessor shall during the
term of this Lease at the Lessor's sole expense, do all things necessary to remove any dangerous
conditions from time to time existing on the remainder of Watson Island including (without
limiting the generality of the foregoing) promptly taking appropriate measures to prevent or repair
any erosion, collapse or other unstable conditions of the remainder of Watson Island.
Section 14.4. Alteration of Improvements. Lessor's consent shall not be required as to
any non-structural alteration, addition or change in the Leasehold Improvements nor to any
structural alteration, addition or change involving a cost of less than
(subject to annual increases based- upon increases in the Consumer Price Index from the
commencement date to each anniversary date), unless such non-structural alteration, addition or
change in the Leasehold Improvements will substantially affect the character and/or the aesthetic
appearance of the Project. The Lessee shall not make or permit to be made any structural
alteration of, addition to, or change in, the Leasehold Improvements, nor demolish all or any part
of the Leasehold Improvements, involving a cost in excess of $1,000,000.00 (subject to annual
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increases based upon increases in the Consumer Price Index from the commencement date to each
anniversary) without the prior written consent of the Lessor, which consent shall not be
unreasonably withheld. The Lessee shall submit to the Lessor detailed Construction Documents
and specifications of the proposed work, an explanation of the needs and reasons for it, and a plan
of full payment of the costs of it and the Lessor shall notify the Lessee of its approval or
objections, as the case may be, as promptly as possible after receiving the information, but not
exceeding 30 days. Failure of the Lessor to deliver written objection to Lessee within such thirty
(30) day period shall conclusively constitute Lessor's consent to the proposed work. The
provision of this Section 14.4 shall not apply to items which are strictly the Lessee's obligation to
finish, unless required by law or ordinance.
Section 14.5. Repairs and Maintenance of Watson Island. The Lessor acknowledges and
agrees that the Lessee is under no obligation to maintain or to make any repairs whatsoever to
Watson Island or to any of the improvements thereon. The Lessor, however, has requested that
the Lessee agree, from time to time, at the discretion of the Lessee, to make repairs to and
maintain the following improvements on Watson Island, all at the cost and expense of the Lessee:
(a) Ichimura Miami -Japanese Garden
(b) Public park lands on northside of MacArthur Causeway
(c) Open space on northside of MacArthur Causeway
(d) Baywalk on northside of MacArthur Causeway
(e) Pedestrian paths on northside of MacArthur Causeway and under bridge.
Lessee shall have the option from time to time to make any or all of such repairs and/or
maintenance.
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Lessor at its sole cost and expense shall be responsible for the repairs and maintenance of
the public boat ramps located outside of the Subject Property. '
Section 14.6. Construction of Roads. Additionally, Lessee shall be responsible for all
costs of design and construction of access roads and north side circulation roads on Watson
Island Funds that may become available to the City shall be utilized to relieve Lessee of funding
responsibility for the access roads.
ARTICLE XV
LESSOR'S RIGHT TO PERFORM LESSEE'S COVENANTS;
REIMBURSEMENT OF LESSOR FOR AMOUNTS SO EXPENDED
Section 15.1. Performance of Lessee's Covenants to Pay Money. The Lessee's
covenants that if it shall at any time default in the payment of any Impositions pursuant to the
provisions of Article X, or shall fail to make any other payment (other than Rent) due and the
failure shall continue for twenty (20) business days after written notice to the Lessee, ("Notice of
Non -Payment of Imposition") then the Lessor may, but shall not be obligated so to do, and
without further notice to or demand upon the Lessee and without waiving or releasing the Lessee
from any obligations of the Lessee in this Lease contained, pay any Imposition, effect any
insurance coverage and pay premiums for it, or make any other which Lessee has improperly
failed to pay as set forth in the Notice of Non -Payment of Imposition.
Section 15.2. Lessor's Right to Cure Lessee's Default. If there shall be an event of
default as defined in Article XXVI of this Lease Agreement involving the failure of the Lessee to
keep the Leasehold Improvements in good condition and repair in accordance with the provision-s
of this Lease, to make any necessary renewals or replacements or to remove any dangerous
condition in accordance with the requirements of this Lease or to take any other action require,
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by the terms of this Lease, then the Lessor may proceed with any permissible action in a Court of
Law having jurisdiction, but Lessor shall not have the right, to make good any such alleged
default of the Lessee.
Section 15.3. Attorney's Fees and Expenses. In the event of any litigation between the
parties, all expenses, including reasonable attorneys fees and court costs, at both the trial and
appellate levels incurred the prevailing party, shall be paid by the non prevailing party.
Section 15.4. Reimbursement of Lessor and Lessee. All sums advanced by the Lessor
pursuant to the provisions of Sections 15.1 and all necessary and incidental costs, expenses and
attorneys fees in connection with the performance of any acts, together with interest at the Prime
Interest Rate per annum from the date of the making of advancements, shall be deemed additional
Rent and shall be promptly payable by the Lessee, in the respective amounts so advanced, to the
Lessor. This reimbursement shall be made on demand, or, at the option of the Lessee, may be
added to any Rent then due or becoming due under this Lease Agreement and the Lessee
covenants to pay the sum or sums with interest, and the Lessor shall have (in addition to any other
right or remedy) the same rights and remedies in the event of the nonpayment by the Lessor as in
the case of default by the Lessee in the payment of any installment of Rent as provided in
Article XXVI.
ARTICLE XVI
DAMAGE OR DESTRUCTION
Section 16.1. Repair and Replacement of The Improvements and Any Subsequent
Improvements After Damage. In the event of damage by fire or otherwise to the nonstructural
elements of the Leasehold Improvements including any machinery, fixtures or equipment which
are a part of the Leasehold Improvements located on the Subject Property, the Lessee shall,
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within six months after the settlement of any applicable insurance claim and Lessee's receipt of the
insurance proceeds, at the Lessee's sole expense (but using along with the Lessee's own funds
insurance proceeds available for that purpose), either repair or replace the machinery, fixtures or
equipment. In the event of damage by fire or otherwise to the structural elements of the
Improvements, the Lessee shall, within eighteen months after the settlement of all applicable
insurance claims and the receipt by Lessee of the insurance proceeds, at the Lessee's sole expense
(but using along with the Lessee's own funds insurance proceeds available for that purpose),
repair and restore the Leasehold Improvements as completely as possible to the condition it was
in immediately prior to the damage or, if the Lessee so elects, replace, within twenty-four months
after the receipt of all of such insurance proceeds (but using along with the Lessee's own funds
insurance proceeds available for that purpose), the Leasehold Improvements (including all
machinery, fixtures and equipment situated there) with new Leasehold Improvements of the same
general size and character as the damaged Leasehold Improvements. In either event the repairing,
restoring or replacement shall be done in conformity with and subject to the provisions of Article
IV applicable to the construction of the initial Leasehold Improvements Lessor hereby
acknowledges and agrees that Lessee's obligations hereunder and the six month, eighteen month
and twenty-four month time periods set forth above are subject to delays and extensions based on
force majeure or the severity of the damage.
Section 16.2. Payment for Construction After Damage or Destruction. Subject to any
requirements of a Leasehold Mortgagee, all insurance proceeds recovered by any party on
account of damage or destruction to the Leasehold Improvements, less the actual costs, if any, to
the applicable party relating to recovery shall be applied by the parties to the payment of the cost
of the Work (pursuant to this Article and Section 11.4) to restore the Leasehold Improvements.
The insurance proceeds shall be paid out, the Work shall be performed, and the Lessee shall make
additional deposits with the Escrow Agent, if any are required, all in accordance with Section
11.4, as may be applicable.
Section 16.3. Collection of Insurance Proceeds. The Lessor shall in no event be
responsible for the non -collection of any insurance proceeds under this Lease Agreement but only
for insurance money that shall come into its hands .
Section 16.4 Unused Insurance Proceeds and Deposits. In the event any proceeds of
insurance or sums deposited with the Lessor in connection with any restoration of the Leasehold
Improvements shall remain in the hands of the Lessor until completion of restoration of the
Leasehold Improvements, and if the Lessee shall not be in default under this Lease Agreement in
respect of any matter or thing of which notice of default has been served on the Lessee, then the
remaining funds shall be paid, first, on any unpaid Rent, and, second, to the Lessee.
ARTICLE XVH
ARBITRATION
Section 17.1. Arbitration. A panel of arbitrators ("Arbitration Panel") shall be
established when required by this Agreement.
(a) The appointments to the panel shall be made in the following manner:
(i) The City shall name one member;
(ii) Lessee shall name one member; and
(iii) The aforesaid members shall promptly name a third member.
(b) Every member of the Arbitration Panel must be a member of the American
Institute of Real Estate Appraisers.
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99
(c) If either party shall fail to designate a member within fifteen (15) days after a
written request so to do by the other party, then such other party may request the President of the
Florida Chapter of the American Arbitration Association to designate a member, who when so
designated shall act in the same manner as if he had been the member designated by the party so
failing to designate an arbitrator. If the two members are unable to agree upon a third member
within ten (10) days from the last date of designation, such third member within ten (10) days
from the last date of designation, such third member shall be designated by the President of the
Florida Chapter of the American Arbitration Association, upon the request of either of the two
members.
(d) All actions, hearings and decisions of the Arbitration Penal shall be conducted,
based upon and in accordance with the Commercial Arbitration Rules of the American Arbitration
Association. In all controversies, disputes or claims with respect to the evaluation of real estate
referred to Arbitration under the provisions of this Agreement, the Arbitration shall be conducted
in accordance with the Real Estate Valuation Rules of the American Arbitration Association. In
determining any matter before them, the Arbitration Panel shall apply the terms of this Agreement,
and shall not have the power to vary, modify or reform any terms or provisions of the Agreement
in any respect. The Arbitration Panel shall afford a hearing to the City and to the Lessee and the
right to submit evidence with the privilege of cross- examination on the question at issue. All
arbitration hearings shall be held at a place designated by the Arbitration Panel in Dade County,
Florida.
(e) A hearing shall be commenced within thirty (30) days following the selection of the
last of the three arbitrators. A court reporter shall make a transcript of the hearing. The parties
and the Arbitration Panel shall use their best efforts to conclude the hearing within ten days. The
100
parties shall be entitled to such pre-trial discovery as they may agree, or as determined by the
Arbitration Panel. The Arbitration Panel shall have the right to question witnesses at the hearing,
but not to call witnesses. The Arbitration Panel may grant continuances for good cause or with
the agreement of both parties. The Arbitration Panel may render a decision at the close of the
hearing, or may request briefs on any or all issues. Any and all such briefs, including reply briefs,
shall be filed with the terms and on the schedule set by the Arbitration Panel, but in any event no
later than forty-five (45) days following the commencement of the hearing. The Arbitration Panel
shall render a determination within sixty (60) days from the conclusion of the hearing. If no
determination is rendered within such time, unless the parties agree otherwise, a new Arbitration
Panel shall be selected as described above, but the new Arbitration Panel shall render a
determination solely upon review of the record of the hearing without a further hearing.
(f) The Arbitration Panel selected hereunder shall agree to observe the Code of Ethics
for Arbitrators in Commercial Disputes promulgated by the American Arbitration Association and
the American Bar Association, or any successor code. The decision of a majority with respect to
any matter referred to it under this Lease shall be final, binding and conclusive on the City and
Lessee and enforceable in any court of competent jurisdiction. Together with the determination,
the Arbitration Panel shall provide a written explanation of the basis for the determination. Each
party shall pay the fees and expenses of the member of the Arbitration Panel designated by such
party, such party's counsel and witness fees, and one-half (1/2) of all expenses of the third member
of the Arbitration Panel.
ARTICLE XVM
MECHANICS LIENS
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Section 18.1. Discharge of Mechanics Liens. The Lessee shall not suffer or permit any
mechanics liens to be filed against the title to the Subject Property, nor against the Lessee's
interest in the property, nor against the Leasehold Improvements or by reason of the Work, labor,
services or materials supplied or claimed to have been supplied to the Lessee or anyone having a
right to possession of the Subject Property or the Leasehold Improvements as a result of an
agreement with or the assent of the Lessee. Nothing in this 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 Improvement, alteration or repair of or to the Subject
Property of the Leasehold Improvements. If any mechanics lien shall at any time be filed against
the Subject Property including the Leasehold Improvements, the Lessee shall cause it to be
discharged of record or transferred to bond within thirty (30) days after the date the Lessee has
knowledge of its filing. If the Lessee shall fail to discharge or transfer to bond 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 or 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
..t
additional Rent 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. The Lessee shall not be
required to pay or discharge any mechanics lien so long as the Lessee shall in good faith proceed
102 - 83 -
to contest the lien by appropriate proceedings and if the Lessee shall have given notice in writing
to the Lessor of its intention to contest the validity of the lien and shall furnish and keep in effect a
surety bond of a responsible and substantial surety company reasonably acceptable to Lessor or
other security reasonably satisfactory to Lessor in an amount sufficient to pay one hundred ten
percent of the amount of the contested lien claim with all interest on it and costs and expenses,
including reasonable attorneys fees, to be incurred in connection with it.
ARTICLE XIX
COVENANT AGAINST WASTE AND INSPECTION
Section 19.1. 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 Improvements or any part of it, or permit or suffer any overloading of
its structural members or floors. The provisions of this Section 19.1 shall not apply to any
demolition or disfigurement involved with repairs, renovations, upgrading or new construction.
Section 19.2. Inspection of Subject Property. The Lessee shall permit the authorized
representatives of Lessor to enter the Subject Property or any part of it during mutually agreeable
times during usual business hours after a minimum of ten (10) business days written for the
purpose of making reasonable inspections. Except for emergency situations, Lessor shall give
Lessee a written inspection request at least ten (10) business days prior to the requested
inspection setting forth the purpose for the inspection, the areas desired to be inspected and the
anticipated duration of the requested inspection.
ARTICLE XX
ENVIRONMENTAL LIABILITY
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96 55- '
Section 20.1. Definition of Terms. For purposes of this Section the following terms shall
have the meaning attributed to them in this subsection:
(a) Environmental Laws shall mean all applicable requirements of federal, state and
local, environmental, public health, and safety laws, regulations, orders, permits, licenses,
approvals, ordinances and directives, including but not limited to, all applicable requirements of:
the Clean Air Act; the Clean Water Act; the Resource Conservation and Recovery Act, as
amended by the Hazardous and Solid Waste Amendments of 1984; the Safe Drinking Water Act;
the Comprehensive Environmental Response, Compensation and Liability Act, as amended by the
Superfund Amendments and Reauthorization Act of 1986; the Occupational Health and Safety
Act; the Toxic Substances Control Act; the Pollutant Discharge Prevention and Control Act; the
Water Resources Restoration and Preservation Act; the Florida Air and Water Pollution Control
Act; the Florida Safe Drinking Water Act; Florida Environmental Reorganization Act of 1975.
(b) Costs shall mean the costs of curing any violations of any Environmental laws
and/or cleaning up and eradicating any existing Contamination.
(c) Existing Contamination shall mean any hazardous waste or contamination revealed
by the Phase I and/or Phase II audits (see Section 13.1 hereof).
(d) Clean Up shall mean any necessary remediation resulting from a release of
hazardous materials at the Subject Property which is ordered by any federal, state, or local
environmental regulatory agency, if necessary to avoid injury to persons or property.
Section 20.2. Environmental Warranty of Lessee. The Lessee warrants and represents
that it will not unlawfully use or employ the Subject Property, or any of the Leasehold
Improvements thereon to handle, transport, store, treat, or dispose of any hazardous wastes or
substances, on the Subject Property. The Lessee warrants and represents that it will not
104
knowingly conduct any activity on the Subject Property in violation of any applicable
Environmental Laws and that any activity on or relating to the Subject Property will be conducted
in full compliance with all Environmental Laws and all terms, conditions and requirements of any
and all permits, licenses, consents, approvals, and authorizations of any federal, state, or local
regulatory agencies or authorities.
Section 20.3. Investigation of Environmental Condition of the Subject Property.
(a) The Lessor hereby grants to the Lessee, its agents and other representatives full
and continuing access to the Subject Property and all parts thereof for the purpose of the Lessee,
at Lessee's sole cost and expense, performing environmental investigation and testing on the
Subject Property. The Parties agree that prior to the execution of this Lease, the Lessee will
perform a Phase I environmental audit of the Subject Property, and if warranted by the Phase I
findings, the Lessor and Lessee will mutually agree as to whether and whom will cause said Phase
II audit to be performed to determine whether the Subject Property is in compliance with all
applicable Environmental Laws and will evaluate the extent, if any, to which hazardous or toxic
substances, pollutants or contaminants have been or are being released, discharged, emitted, or
otherwise disposed of into the environment in violation of federal, state, or local laws, regulations,
ordinances or other requirements (the "Inspections"). In the event that the Phase II audit is
performed and it is determined that the Subject Property is not in compliance with the applicable
Environmental Laws or that contaminants have been or are being released, discharged, emitted or
- •z
otherwise disposed of into the environment (the "Existing Contamination"):
(i) either party may elect to cancel this Lease in which case Lessor shall
reimburse Lessee for the cost of the Phase I audit; or
or
(ii) Lessor shall serve the Lessee with the Environmental Acceptance Notice;
(iii) the financial responsibility for cleanup of the Existing Contamination shall
be determined as set forth in Section 20.5 below.
(b) Inspection Indemnity. Notwithstanding anything contained in this Lease, Lessee
shall (i) immediately pay or cause to be removed any liens filed against the Subject Property as a
result of any Inspection performed by or on behalf of the Lessee, pursuant to this Article; (ii)
immediately repair and restore the Subject Property to its condition existing immediately prior to
the conduct of Lessee's Inspections; and (iii) indemnify, defend and hold the Lessor harmless from
and agents all claims to recover damages for injury or loss of property, personal injury, or death
to anyone on the Subject Property as a result of the acts or omissions of the Lessee or any of its
agents or employees.
Section 20.4. Lessor's Representations and Warranties. The Lessor represents and
warrants that no lawsuits, claims, legal or administrative claims have been brought resulting from
the Lessors use or occupancy of the Subject Property, or the existence of any hazardous
substances thereon during the Lessors use or occupancy.
Section 20.5. Allocation of Financial Responsibility for Cleanup of Existing
Contamination. In the event it is determined that there are environmental conditions on the
Subject Property requiring remediation and it is further determined that this Lease should remain
'i
in full force and effect. The Parties hereby agree that they will discuss and agree to a mutually fair
and equitable distribution of costs to be incurred to carry out the remediation activities required.
Section 20.6. Lessee's Liability for Contamination During Term of Agreement. The
Lessee agrees to undertake at the Lessees sole cost and expense, any necessary remediation
106
resulting from a release of hazardous materials, hazardous waste or hazardous substances
occurring on or from the Subject Property in connection with any activity or acts of the Lessee or
the Lessees agents, sublessees, concessionaires, or licensees during the Lease Term.
Section 20.7. Lessor's Liabilitv for Contamination During Lease Term. The City agrees
to undertake at the Lessor's sole cost and expense, any necessary remediation resulting (i) from a
release of hazardous materials, hazardous wastes or hazardous substances occurring on or from
the Subject Property in connection with any activity or acts of the Lessor or the Lessor's agents,
lessees, concessionaires or licensees during the Lease Term, and (ii) from any release of
hazardous materials, hazardous wastes or hazardous substances on or from the Watson Island
which carries on to, over or under, or in any way affects, the Subject Property.
Section 20.8. Indemnity. If the Lessee's or the Lessor's warranties and representations
contained in this Article are false or breached, or if the Lessee fails to fully comply with its
undertakings pursuant to Section 20.6 hereof, or if the Lessor fails to fully comply with its
undertakings pursuant to Section 20.7 hereof, the Lessee or the Lessor, as the case may be,
agrees to defend, indemnify, and hold harmless the other party and its agents, officials, and
employees, to the fullest extent permitted by law, from and against all expenses of clean up and
any and all claims, causes of action, or demands, in law or in equity, including but not limited to,
all lien claims, administrative claims, claims for injunctive relief, claims of property damage,
natural resources damages, environmental response and clean up costs, fines, penalties, and
expenses (including without limitation, counsel fees, consultant fees and expert fees, costs and
expenses incurred in investigation and defending against the assertion of such liabilities), which
may be sustained, suffered or incurred by the said non breaching party, its agents, officials or
employees and that arise out of or related in any way to the Subject Property.
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ARTICLE XXI
PUBLIC UTILITY CHARGES
Section 21.1. Lessee to Provide and Pay for Utilities. The Lessee will pay, or cause to be
paid, all proper charges for gas, electricity, light, heat, water and power, for telephone, protective
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 and the Lessee will 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 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.
Section 21.2. Lessor Not Liable for Failure of Utilities. Unless it is the supplier of the
same, the Lessor shall not be liable 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, gas or
electricity which may leak or flow from the water or gas mains on to any part of the Leasehold
Improvements or the Subject Property.
ARTICLE XXII
INDEMNIFICATION OF LESSOR
I.
Section 22.1. General Indemnification of Lessor Without Limitation of Any Other
Indemnity Given Hereunder. The Lessee agrees to indemnify, defend and save harmless the
W.
Lessor against and from any and all claims by or on behalf of any person, firm or corporation,
arising, other than due to the Lessors gross or wanton negligence, from the conduct or
management of or from any Work or thing whatsoever done in or about the Subject Property and
the Improvements. The Lessee also agrees to indemnify, defend and save the Lessor harmless
against and from any and all claims and damages arising, other than due to the Lessors gross or
wanton negligence, during the term of this Lease Agreement from any condition of the
Improvements and Subject Property, or arising, other than due to the Lessors gross or wanton
negligence, from any breach or default on the part of the Lessee to be performed, pursuant to the
terms of this Lease Agreement, or arising from any act or negligence of the Lessee or any of its
agents, contractors, servants, employees or licensees, or arising, other than due to the Lessors
gross or wanton negligence, from any accident, injury or damage whatsoever caused to any
Person occurring during the Lease Term in or on the Subject Property, and from and against all
costs, counsel and legal fees, expenses and liabilities incurred in any claim or action or proceeding
brought thereon, and in case any action or proceeding be brought against the Lessor by reason of
a claim, the Lessee upon notice from the Lessor shall at its expense resist or defend the action or
proceeding by counsel reasonably satisfactory to the Lessor. If the Lessee be required to defend
any action or proceeding pursuant to this Article =I to which action or proceeding the Lessor
is made a party, the Lessor shall also be entitled to appear, defend, or otherwise take part in the
matter involved, at its election, and at the sole expense of the Lessee (except the Lessee shall not
L
be obligated to pay counsel fees when an insurance carrier is obligated to and does defend the
Lessor), by counsel of its own choosing, provided this action by the Lessor does not limit or make
void any liability of any insurer of the Lessor or the Lessee in respect to the claim or matter in
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110
question. The foregoing agreements of indemnity are in addition to and not by way of limitation
of any other covenants in this Lease Agreement to indemnify the Lessor. The foregoing
agreements of indemnity by the Lessee do not apply to any claims of damages arising out of the
failure of the Lessor to perform acts or render services in its municipal capacity.
ARTICLE XXIII
LIEN FOR RENT AND OTHER CHARGES
Section 23.1. Lien for Rent. The whole amount of the Rent, and each and every
installment, and the amount of all taxes, assessments, water rates, insurance premiums and other
charges and Impositions paid by the Lessor under the provisions of this Lease Agreement, and all
costs, attorneys fees and other expenses which may be incurred by the Lessor in enforcing the
provisions of this Agreement or on account of any delinquency of the Lessee in carrying out any
of the provisions of this Lease Agreement, shall be and they are deemed to constitute a valid lien
upon the Leasehold Improvements, including the Improvements, and upon the Lessees leasehold
estate, subject and subordinate, however, to any Leasehold Mortgage and to the rights of any
Leasehold Mortgagee and to the lien given by Lessee in the purchase of any equipment,
machinery, furniture, fixtures or other personalty utilized on or in the Subject Property and the
Leasehold Improvements, and may be enforced by all remedies at law and in equity.
ARTICLE XXIV
[intentionally left blank]
ARTICLE XXV
CONDEMNATION
e
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Section 25.1. Entire Subject Property Taken By Condemnation. In the event that all of
the Subject Property and the Leasehold Improvements, (or such portion thereof as shall, in the
good faith opinion of Lessee, render it economically unfeasible to effect restoration thereof) shall
be taken for any public purpose by the exercise of the power of eminent domain or shall be
conveyed by the City and Lessee acting jointly to avoid proceedings of such taking, the Rent and
money to be treated as Additional Rent pursuant to this Lease shall be prorated and paid by the
Lessee to the date of such taking or conveyance and this Lease shall terminate and become null
and void as of the date of such taking or conveyance; and the amount of damages resulting to
Lessor and Lessee, respectively, and to their respective interests in and to the Subject Property,
the Leasehold Improvements, and in connection with this Lease, shall be separately determined
and computed by the court having jurisdiction and separate awards and judgments with respect to
damages to Lessor and Lessee, respectively, and to each of their respective interests, shall be
made and entered. In the event that a court shall make a single award without separately
determining the respective interests of Lessor and Lessee, and if Lessor and Lessee's Leasehold
Mortgagee shall not agree in writing as to their respective portions of an award within 20 days
after the date of the final determination by the court of the amount of it, Lessor and Lessee agree
to submit the matter to the court on stipulation for the purpose of a judgment determinative of
their respective shares.
In any event, the Lessor shall be entitled to receive its reversionary interest in the Subject
Property and Leasehold Improvements and Lessor's present value of rent due under the terms of
the Lease Agreement and for the Lessee's estate in the Subject Property and the Leasehold
Improvements which a buyer willing but not obligated to buy, would pay therefore in an arms
112.
(iii) There shall be paid to the Lessee the amount required to complete the
remodeling and repairs to the Leasehold Improvements pursuant to (a) above;
(iv) City and Lessee shall be paid portions of the balance of said award or
awards, if any, which are allocable to and represented by the value of their respective interest in
the Subject Property as found by the court or jury in its condemnation award.
Section 25.3. Adjustment of Rent Upon Partial Taking. In the event a part of the Subject
Property and the Improvements thereon, if any, shall be taken for any public use or purpose by the
exercise of the power of eminent domain, or shall be conveyed by City and Lessee acting jointly
to avoid proceedings of such taking, then Rent, and money to be treated as Additional Rent
pursuant to this Agreement shall be paid by Lessee to the date of such taking or conveyance, and
after such date the Rent for the remainder of the Subject Property shall be reduced by such an
amount as may be agreed upon in writing by the parties hereto, provided, however, if City and
Lessee shall be unable to agree upon the amount of such reduction within thirty (30) days of the
date of such taking, then, and in such event, the amount of such reduction shall be determined by
a court of competent jurisdiction.
Section 25.4. Deposit of Condemnation Award with Escrow Agent. Unless the effect of
a condemnation proceeding shall be to terminate this Lease Agreement by operation of law or as
provided in Section 25. 1 above, and except as may be provided in any Leasehold Mortgage to, or
agreement with, any Leasehold Mortgagee described in Section 6.8 above, any award made in
respect of the Leasehold Improvements in a condemnation proceeding shall be deposited with the
Leasehold Mortgagee as Escrow Agent (unless Leasehold Mortgagee refuses to act as such, in
which case the City and Lessee shall select a bank to serve as Escrow Agent) to be paid out for
the cost of restoring the Leasehold Improvements and accomplishing the Work and for other
- 94 - I SGu.5SAIn
related purposes. Lessee shall make additional deposits with the Escrow Agent, if any are
required by this Lease, all in accordance with the terms of this Lease.
Section 25.5. Rights of Leasehold Mortgagee. Lessor and Lessee shall not settle or
compromise the amount or division of any award in any condemnation proceeding without any
Leasehold Mortgagee's consent. Any Leasehold Mortgagee of Lessee shall be entitled to appear
in any condemnation proceedings and make claim for the share of any award to which Lessee is
entitled by the terms of this Article.
Section 25.6 Temporary Taking. In the event that all or any portion of the
Improvements or the Subject Property shall be taken by the exercise of the right of eminent
domain for governmental use or occupancy for a temporary period, this Lease Agreement shall
not terminate and Lessee shall continue to perform and observe all of its obligations (including the
obligation to pay rent as provided throughout this Lease Agreement) as though the temporary
taking had not occurred except only to the extent that it may be prevented from so doing by the
terns of the order of the authority which make the taking or by the conditions resulting from the
taking, including the loss of its possession of all or any part of the Improvements or the Subject
Property. In the event the taking for governmental occupancy is for a period entirely within the
term of this Lease Agreement, then Lessee shall be entitled to receive the entire amount of any
award made for the taking, whether paid by way of damages, rent or otherwise. If the period of
governmental occupancy extends beyond the termination of the term of this Agreement, the
amount of the award, after payment to Lessor of the estimated cost of restoration of the
Improvements, shall be apportioned between Lessor and Lessee as of the date of the termination.
The amount of any award payable to Lessee in either case, on account of the taking of all or any
part of the Improvements, shall be apportioned on an annual basis during the period within the
- 95 - �)�',�1�� 113
9 G -�.Y5a5;1�
term of this Agreement to which the award is applicable and shall be deemed a part of Lessee's
for all purposes in this Lease Agreement. In the event of any award without separately
determining the amount of the award applicable to the taking of the interest of Lessor in this
Lease Agreement and in the Improvements and if or and Lessor and Lessee shall not agree in
writing as to the proportion of the award so applicable to Lessor, then Lessor and Lessee shall
submit the matter to the court on stipulation for the purpose of a judgment determinative of the
interest of Lessor. In the event for any reason the trial judge refuses to permit a determination by
judgment, then the interest of Lessor shall be determined by arbitration under Article XVII.
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114�SC=
ARTICLE XXVI
DEFAULT PROVISIONS
Section 26.1. Events of Default, Lessee, Each of following events is defined as an Event
of Default:
(a) The failure of the Lessee to pay any installment of Rent, or any other payments or
deposits of money, or furnish receipts for deposits as required, when due and the continuance of
the failure for a period of 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 60 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 60 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 shall continue diligently to reasonably prosecute all action necessary to cure the default;
(c) The filing of an application by the Lessee (the term, for this purpose, to include
any approved transferee other than a Sublessee of the Lessees interest in this Lease Agreement):
(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 allegations of, or its consenting to, or
defaulting in answering, a petition filed against it in any bankruptcy proceeding; or
- 97 - 15"-G- r�
115
J•
(d) The entry of an order, judgment or decree by any court of competent jurisdiction,
adjudicating the Lessee a 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 60
consecutive days, or if this Lease Agreement is taken under a writ of execution.
Note: In the event this Lease Agreement is assumed by or assigned to a trustee pursuant to the
provisions of the Bankruptcy Reform Act of 1978 (referred to as Bankruptcy Code) (I I USC 1
et seq.), and the trustee shall cure any default under this Agreement and shall provide adequate
assurances of future performance of this Lease Agreement as are required by the Bankruptcy
Code (including, but not limited to, the requirement of Section 365(b)(1)) (referred to as
Adequate Assurances), and if the trustee does not cure such default and provide such Adequate
Assurances under the Bankruptcy Code within the applicable time periods provided by the
Bankruptcy Code, then this Lease Agreement shall be deemed rejected automatically and the
Lessor shall have the right immediately to possession of the Subject Property immediately and
shall be entitled to all remedies provided by the Bankruptcy Code for damages for breach or
termination of this Lease Agreement.
Section 26.2. Remedies in Event of Default. The Lessor may treat any one or more of
the Events of Default as a breach of this Lease Agreement and thereupon at its option, by serving
written notice on the Lessee and its Leasehold Mortgagee of the Event of Default of which the
Lessee shall have received notice in writing, the Lessor shall have, subject to the provisions of
L
Article VI and subject to compliance with all applicable laws, in addition to other remedies
provided by law, one or more of the following remedies:
(a) The Lessor may terminate this Lease Agreement and the term created, in which
event the Lessor may repossess the entire Subject Property and the Leasehold Improvements, and
116 - 98 -
be entitled to recover as damages a sum of money equal to the value as of the date of termination
of this Lease Agreement of the Rent provided to be paid by the Lessee for the balance of the
Lease Term (the Rent to be computed on the basis of the total average Rent payable under
Section 5.1 for the three years prior to the Lessee's default) less the fair rent as of the date of
termination of this Lease Agreement of the fee interest in the Subject Property and the
Improvements for the period, and any other sum of money and damages due under the terms of
this Lease Agreement to the Lessor and the Lessee.
(b) The Lessor may terminate the Lessee's right of possession and may repossess the
entire Subject Property and the Leasehold Improvements by forcible entry and detainer suit or
otherwise, without demand or notice of any kind to the Lessee (except as above expressly
provided for) and without terminating this Lease, in which event the Lessor shall attempt to
mitigate and minimize the damages it suffers and may, but shall be under no obligation so to do,
relet all or any part of the Subject Property for Rent and upon terms as shall be satisfactory -in the
judgment reasonably exercised by the Lessor (including the right to relet the Subject Property and
the Leasehold Improvements for a term lesser than that remaining under the stated term of this
Agreement). For the purpose of reletting, the Lessor may make any repairs, changes, alterations
or additions in or to the Subject Property and the Leasehold Improvements that may be
reasonably necessary or convenient in the Lessor's judgment reasonably exercised; and if the
Lessor shall be unable after a reasonable effort to do so to relet the Subject Property, or if the
. -t
Subject Property and the Leasehold Improvements are relet and a sufficient sum shall not be
realized from reletting after paying all of the costs and expenses of repairs, changes, alterations
and additions and the expense of reletting and the collection of the Rent accruing from it, to
satisfy the Rent above provided to be paid, then the Lessee shall pay to the Lessor as damages a
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1 ��15 117
118
sum equal to the amount of the Rent reserved in this Lease Agreement for the period or periods
as and when payable pursuant to Article V, or, if the Subject Property or any part of it has been
relet, the Lessee shall satisfy and pay any deficiency upon demand from time to time; and the
Lessee acknowledges that the Lessor may file suit to recover any sums falling due under the terms
of this Subsection (b) from time to time and that any suit or recovery of any portion due the
Lessee shall be no defense to any subsequent action brought for any amount not reduced to
judgment in favor of the Lessor.
(c) In the event of any breach by the Lessee of any of the terms, covenants,
agreements, provisions or conditions in this Lease Agreement, the Lessor shall have the right to
invoke any right and remedy allowed at law or in equity or by statute or otherwise as though
reentry, summary proceedings, and other remedies not provided for in this Lease Agreement.
(d) In the event the Lessee shall fail to make any payment required to be made
provided for in this Lease Agreement or shall default in the performance of any other covenant or
agreement which the Lessee is required to perform under this Lease Agreement during the period
when Work provided for in this Lease Agreement shall be in process or shall be required by the
terms of this Lease Agreement to commence, the Lessor may treat the default as a breach of this
Lease Agreement and, in addition to the rights and remedies provided in this Article XXV, but
subject to the requirements of service of notice pursuant to this Lease Agreement, the Lessor shall
have the right to carry out or complete the Work on behalf of the Lessee without terminating this
Lease Agreement, in which event the Construction Lender shall, on request, make disbursements
as required by Section 4.6 of any funds available for the purpose pursuant to the commitment or
otherwise in its hands (which in each case shall also refer to any sums received by the
Construction Lender under the surety bonds described in the contract documents) without the
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�j Gl.�S�r44
,�� 55_,I
necessity of any request by the Lessee and any sum expended by the Lessor under the provisions
of this Article XXVI shall be and become additional Rent under this Lease Agreement and be due
and payable by the Lessee immediately upon demand.
Section 26.3. Waivers and Surrenders to Be in Writing. The receipt of Rent 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 failure on the part of the Lessor to enforce any covenant or provision
contained in this Lease Agreement, or any waiver of any right under it by the Lessor, unless in
writing, shall discharge or invalidate such covenant or provision or affect the right of the Lessor
to enforce it in the event of any subsequent breach or default. No covenant or condition of this
Lease Agreement shall be deemed to have been waived by the Lessor unless the waiver be in
writing, signed by the Lessor or the Lessor's agent duly authorized in writing. Consent of the
Lessor to any act or matter must be in writing and shall apply only with respect to the particular
act or matter to which the consent is given and shall not relieve the Lessee from the obligation,
wherever required under this Lease Agreement, to obtain the consent of the Lessor to any other
act or matter. The receipt by the Lessor of any Rent or any other sum of money or any other
consideration paid by the Lessee after the termination, in any manner, of the term demised, shall
not reinstate, continue or extend the term demised unless so agreed to in writing and signed by
. `
the Lessor and Lessee.
Section 26.4. Rights of Leasehold Mortgagee Upon Lessee's Default. All of Lessor's
rights and remedies upon Lessee's default are subject and subordinate to the provisions.of Article
VI of this Lease concerning the rights and remedies of Leasehold Mortgagees.
-101-��GuS''
120
Section 26.5. Events of Default - City.
(a) Events of Default. The failure of the City to perform any of the covenants,
conditions and agreements of this Lease which are to be performed by the City and the
continuance of such failure for a period of sixty (60) days after notice thereof in writing from
Lessee to the City (which notice shall specify the respects in which Lessee contends that the City
has failed to perform any of such covenants, conditions and agreements) and unless such default
be one which cannot be cured within sixty (60) days and the City within such sixty (60) day
period shall have commenced and thereafter shall continue diligently to prosecute all actions
necessary to cure such defaults, such failure shall constitute an "Event of the City's Default".
(b) Remedies for City's Default. If an Event of the City's Default shall occur, Lessee,
to the fullest extent permitted by law, shall have the right to pursue any or all of the following
remedies:
(i) the right and option to terminate this Lease and all of its obligations hereunder
by giving notice of such election to the City, whereupon this Lease shall terminate as of the date
of such notice;
(ii) the right to a writ of mandamus, injunction or other similar relief, available to
it under Florida law against the City (including any or all of the members of its governing body,
and its officers, agents or representative) provided, however, that in no event shall any member of
such governing body or any of its officers, agents or representatives be personally liable for any of
1.
the City's obligations to Lessee hereunder;
(iii) the right to maintain any and all actions at law or suits in equity or other
proper proceedings to obtain damages resulting from such default.
- 102 -
Section 26.6. Unavoidable Delay. For the purpose of any of the provisions of this
Agreement, neither the City (including the City Manager) nor Lessee, as the case may be, nor any
successor in interest, shall be considered in breach of or in default in any of its obligations,
including but not limited to the preparation of the Subject Property for development, or the
beginning and completion of construction of the Leasehold Improvements or progress in respect
thereto, in the event of unavoidable delay in the performance of such obligations due to strikes,
lockouts, acts of God, inability to obtain labor or materials due to governmental restrictions,
enemy action, civil commotion, fire, unavoidable casualty or other similar causes beyond the
reasonable control of a party (not including such parry's insolvency of financial condition), it being
the purpose and intent of this paragraph that in the event of the occurrence of any such
unavoidable delays the time or times for the performance of the covenants, provisions and
agreements of this Lease, including but not limited to the obligations of the City and the City
Manager with respect to the preparation of the Subject Property for development and completion
of the improvements to be undertaken by the City or of Lessee with respect to construction of
Leasehold Improvements, shall be extended for the period of unavoidable delay; provided,
however, that the party seeking the benefit of the provisions of this Section shall, within thirty
(30) days after such party shall have become aware of such unavoidable delay, give notice to the
other party thereof in writing of the cause or causes thereof and the time delayed. The parties
hereto agree if any event shall not occur at the time required for same as a result of an event of
'i
Unavoidable Delay, the Rent Commencement Date shall be postponed to a date extended by the
period of such delay.
ARTICLE XXVH
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y f� 12
INVALIDITY OF PARTICULAR PROVISIONS
Section 27.1. Invalidity of Provisions. If any provision of this Lease or the application of
it to any Person or circumstances shall to any extent be invalid or unenforceable, the remainder of
this Lease Agreement, or the application of such provision to Persons or circumstances other than
those as to which it is invalid or unenforceable, shall not be affected, and each provision of this
Lease Agreement shall be valid and be enforced to the fullest extent permitted by law.
ARTICLE XXVIII
QUIET ENJOYMENT
Section 28.1. Quiet Enjoyment. The Lessor represents, warrants and covenants that the
Lessee, upon paying the Rent and all Impositions and other charges, and performing all the
covenants and conditions of this Lease Agreement, shall lawfully and quietly hold, occupy and
enjoy the Subject Property during the term of this Lease Agreement without hindrance or
molestation by Lessor or any persons claiming under the Lessor.
ARTICLE XXIX
LESSOR'S TITLE AND LIEN
Section 29.1 Title and Lien Paramount. The Lessor represents, warrants and covenants
that it now has and shall at all times during the Term of this Lease (including any Extended Term)
have 100% ownership of the fee simple title to the Subject Property. The Lessor's lien for Rent
and other charges shall be and remain subject to the rights of any Leasehold Mortgagee under
Article VI and to any party selling personal property to Lessee for use in or on the Subject
Property or the Leasehold Improvements and shall be paramount to all other liens on the Subject
Property and the Leasehold Improvements.
122
J J��
Section 29.2. Lessee Not to Encumber Lessor's Interest. The Lessee shall have no right
or power to and shall not in any way encumber the title of the Lessor in and to the Subject
Property, or the title of the Lessor's remainder or residual interest in the Leasehold Improvements
and/or the other Leasehold Improvements. The fee simple estate of the Lessor in the Subject
Property and the residual interest of the Lessor in the Leasehold Improvements shall not be in any
way subject to any claim by way of lien or otherwise, (except as set forth above) whether claimed
by operation of law or by virtue or any express or implied lease or contract or other instrument
made by the Lessee and any claim to the lien or otherwise upon the Subject Property or in the
Leasehold Improvements arising from any act or omission of the Lessee shall accrue only against
the leasehold estate of the Lessee in the Subject Property and the Lessee's interest in the
Leasehold Improvements
ARTICLE XXX
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ARTICLE XXXI
LIMITATION OF LIABILITY
[intentionally left blank]
- 105 - �I�J'CLIs�►„
ARTICLE XXXII
ESTOPPEL CERTIFICATES
Section 32.1. Estoppel Certificates. The Lessor and the Lessee each agree at any time
and from time to time, so long as this Lease shall remain in effect, upon not less than ten days
prior written request by the other party, to execute, acknowledge and deliver to the other party a
statement in writing certifying that this Lease is unmodified and in full force and effect (or if there
have been modifications, that it is in full force and effect as modified, stating the modifications)
and the dates to which the Rent and other charges have been paid in advance, if any, and stating
whether any default under the terms of this Lease is known by, or any notice of default has been
served by, the party giving the certificate, it being intended that any statement delivered pursuant
to this Article may be relied upon by any prospective purchaser of the Lessor's fee simple interest
in the Subject Property or of the Lessor's remainder interest in the Leasehold Improvements or
may be relied upon by any Leasehold Mortgagee or assignee of any Leasehold Mortgage upon the
fee of the Subject Property or upon the Lessor's remainder interest in the Improvements or by any
permitted assignee or Leasehold Mortgagee of the Lessee's leasehold estate or the Lessee's
interest in the Leasehold Improvements or by any permitted assignee or Leasehold Mortgagee of
the Lessee's leasehold estate or the Lessee's interest in the Leasehold Improvements or by a
Sublessee of all or any part of the Leasehold Improvements or the Subject Property, as the case
may be.
124
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l `'
ARTICLE XXXHI
REMEDIES CUMULATIVE
Section 33.1. Remedies Cumulative. No remedy conferred upon or reserved to the
Lessor or the Lessee shall be considered exclusive of any other remedy, but shall be cumulative
and shall be in addition to every other remedy given under this Lease Agreement or existing at law
or in equity or by statute; and every power and remedy given by this Lease Agreement to the
Lessor or the Lessee may be exercised from time to time and as often as occasion may arise or as
may be deemed expedient by the Lessor or the Lessee. No delay or omission of Lessor or Lessee
to exercise any right or power arising from any default shall impair any right or power, nor shall it
be construed to be a waiver of any default or any acquiescence in it.
Section 33.2. Waiver of Remedies Not To Be Inferred. No waiver of any breach of any
of the covenants or conditions of this Lease Agreement shall be construed to be a waiver of any
other breach or to be a waiver of, acquiescence in, or consent to any further or succeeding breach
of the same or similar covenant or condition.
ARTICLE XXXIV
SURRENDER AND .HOLDING OVER
Section 34.1. Surrender at End of Term. On the last day of the Lease Year of the last
term of the Lease, i.e. the Initial Term or the Extended Term as the case may be, or on the earlier
termination of the term, the Lessee shall peaceably and quietly leave, surrender and deliver the
entire Subject Property to the Lessor, together with the Improvements and all alterations,
changes, additions and other Improvements made upon the Subject Property, and together with
any and all Improvements, furniture, trade fixtures, machinery, equipment or other personal
property of any kind or nature, which the Lessee may have installed or affixed to the Subject
Y
- 107-
Property or the Leasehold Improvements for use in connection with the operation and
maintenance of the Subject Property and the Leasehold Improvements (whether or not the
property is deemed to be fixtures), in their "as is" condition, free and clear of any and all
Leasehold Mortgages, liens, encumbrances and claims. At the time of the surrender, the Lessee
shall also surrender any and all security deposits and rent advances of Sublessee's made pursuant
to Article XXXV. If the Subject Property and the Leasehold Improvements are not so
surrendered, the Lessee shall repay the Lessor for all expenses which the Lessor shall incur by
reason of it, and in addition the Lessee shall indemnify, defend and hold harmless the Lessor from
and against all claims made by any succeeding Lessee against the Lessor, founded upon delay
occasioned by the failure of the Lessee to surrender the Subject Property and the Improvements.
Section 34.2. Rights Upon Holding Over. At the termination of this Lease Agreement by
lapse of time or otherwise, the Lessee shall yield up immediate possession of the Subject Property
and the Leasehold Improvements to the Lessor and, failing so to do, agrees, at the option of the
Lessor, to pay to the Lessor for the whole time such possession is withheld a sum per day equal
to two hundred percent times 1/365th of the aggregate of the Rent paid or payable to Lessor for
the current Agreement Year as set forth in Article V.
The provisions of this Article shall not be held to be a waiver by the Lessor of any right of
entry or reentry as set forth in this Lease Agreement, nor shall the receipt of a sum, or any other
act in apparent affirmance of the tenancy, operate as a waiver of the right to terminate this Lease
Agreement and the term granted for the period still unexpired for any breach of the Lessee under
this Lease Agreement.
126
ARTICLE XXXV
r
- 108 - scq
gas 0 ,
SUBLEASES
Section 35.1. Limitations on Subleases. All Subleases entered into demising all or any
part of the Improvements or the Subject Property shall be expressly subject and subordinate to
this Lease Agreement and shall contain covenants on the part of the Sublessee that (a) neither the
termination of this Lease Agreement nor the institution of any suit, action or proceeding (other
than that of eminent domain) by Lessor to recover possession of the Subject Property and the
Leasehold Improvements or to realize possession of Lessee's leasehold estate shall, by operation
of law or otherwise, result in the cancellation or termination of the Sublease, or of the obligations
of the Sublessee, and (b) if Lessor terminates this Lease by judicial action any prior assignment of
Lessee's interest in the Sublease or the rents due under the Sublease shall automatically terminate
and Lessor shall be Sublessor under the Sublease and the Sublessee will be deemed to have
attorned to Lessor (subject to the rights of any Leasehold Mortgagee under Section 6.8) for the
balance of the term of the Sublease. If any Sublessee is not in default of its Sublease, Lessor shall
not have the right to disturb its possession or terminate the Sublease other than by action in
eminent domain. If requested to do so by Lessee or any Sublessee, Lessor will deliver a written
certificate reciting the terms contained in the last sentence.
No Sublease entered into by Lessee demising any part of the Subject Property or the
Leasehold Improvements shall permit or require the payment of rent in advance for a period
longer than one year (not including the last month's rent or any security deposit) or the application
S.
of any security deposit in payment of rent in advance, nor shall any Sublease (including all
agreements made in connection therewith) contain any provision permitting the Sublessee to set
off against the rent due under the Lease Agreement any claims against Lessee. Lessee agrees not
to accept or receipt for any advance payment of rent which is not permitted as provided.
- 109 - —D16W SSA.C)--. 127
9 �'
128
Lessor acknowledges that neither the termination of this Lease nor the institution of any
suit, action or proceeding (other than that of eminent domain) by Lessor to recover possession of
the Subject Property and the Leasehold Improvements or to realize possession of Lessee's
leasehold estate shall, by operation of law or otherwise, result in the cancellation or termination of
the Sublease, or of the obligations of the Sublessee. Upon Lessor's succeeding to the interest of
Lessee under any Sublease, unless Lessor shall have actually received from Lessee any security
deposit or advance rental of a Sublessee, Lessor shall not be liable for the refund or application of
any such security deposit or advance rental.
Section 35.2. Sublease Term. No Sublease shall be made for a term extending beyond
the last day of the term of this Lease.
During each Lease Year, Lessee shall deliver to Lessor a current list of all sublessees and
concessionaires.
Section 35.3. Assignment of Lease Agreements to Lessor for Security. Subject to the
rights of any Leasehold Mortgagee described in Section 6 .8, Lessee assigns to the Lessor all
Subleases, subtenancies and/or license and concession agreements to be made on the Subject
Property and any part of the Leasehold Improvements, as well as all rents or other sums of money
which may become due and payable to the Lessee, and all security at any time deposited for the
payment of rent and the performance of any other terms of Subleases, subtenancies and/or license
and concession agreements, but the effective date of assignment shall be the date of a judicial
determination of the happening of an Event of Default under the provisions of this Lease. From
and after any such judicial determination of an Event of Default and until it is cured, any
Subleases or subtenancies and license and concession agreements may not be canceled or
modified by the Lessee without the written consent of the Lessor, and any cancellation or
- 110 -
modification, by the Lessee shall be of no force or effect. Upon the curing of any Event of
Default, the assignment shall no longer be effective unless and until the happening of another
judicial determination of an Event of Default. Notwithstanding anything to the contrary contained
in this Section the assignment by Lessee to Lessor shall be junior to any similar assignments of
Subleases and other agreements and rentals or other monies to any Leasehold Mortgagee of
Lessee Mortgagee.
After a judicial determination that Lessee has defaulted hereunder, and prior to the cure of
said Event of Default:
(a) No collection or attempted collection of the rent by the Lessor from any
assignee, subtenant or other occupant shall be deemed a release of Lessee from the further
performance of its obligations under this Lease.
(b) Lessor is authorized and directed, after first deducting any and all costs and
expenses of collection, to apply all rents that it may collect under the assignment towards the
maintenance and operation of the Leasehold Improvements and Subject Property, the
performance of Lessee's covenants, and the payment to Lessor of any and all sums that may be
due under any provisions.
(c) In the event that an assignment becomes effective and operative as above
provided, Lessee authorizes Lessor, in the name of Lessee, or otherwise as Lessor may elect, to
take all necessary steps and legal proceedings (by judicial proceedings, ejectment or other legal or
equitable suit or proceedings) to collect the rent and enforce the performance of the terms,
covenants and conditions of the Subleases and subtenancies and/or license and concession
agreements, or to restrain their breach, or in the event of a breach, to secure the removal of any
Sublessees, subtenants, licensees or concessionaires from the Subject Property and/or all or any
P
29
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part of the Leasehold Improvements; and for this purpose Lessee consents to the use of its name
by Lessor.
ARTICLE XXXVI
FINANCIAL STATEMENTS
Section 36.1. Financial Statements. Within 120 days after the end of each calendar year,
the Lessee shall throughout the Lease Term submit to the Lessor a copy of an unaudited financial
statement of Lessee as prepared by Lessee and certified to by an officer of Lessee.
ARTICLE XXXVH
MODIFICATION
Section 37.1. Modification. None of the covenants, terms or conditions of this Lease
Agreement to be kept and performed by either party to this Agreement shall in any manner be
waived, modified, changed or abandoned except by a written instrument duly signed,
acknowledged and delivered by both Lessor and Lessee.
ARTICLE XXXVIH
CONVEYANCE BY LESSEE TO LESSOR
Section 38.1. Conveyance by Lessee to Lessor. Effective upon the termination of this
Lease Agreement, whether by passage of time or otherwise, the Lessee, in consideration of the
granting of this Lease Agreement by the Lessor to the Lessee, grants and conveys unto the
Lessor and Lessors legal representatives and assigns forever all of Lessee's right, title and interest
r
in the Leasehold Improvements.
ARTICLE XXXIX
APPLICABLE LAW
Ism
130 - 112 - 9�-r�
sent in writing, by United States registered or certified mail, postage prepaid, addressed to the
Leasehold Mortgagee at a place as the Leasehold Mortgagee may from time to time designate in a
written notice to the Lessor and Lessee. Copies of all notices shall simultaneously be sent to the
other of the Lessor or the Lessee, as the case may be.
Section 40.3. Sufficiency of Service. Service of any demand or notice as in this Article
provided shall be sufficient for all purposes.
Section 40.4 When Notice Deemed Given or Received. Whenever a notice is required
by this Lease Agreement to be given by any party to the other party or by any party to a
Leasehold Mortgagee, the notice shall be considered as having been given when a registered or
certified notice is placed in the U.S. Post Office mail as provided by this Article and shall be
deemed received on the third business day thereafter and for all purposes under this Lease
Agreement of starting any time period after notice, the time period shall be conclusively deemed
to have commenced three business days after the giving of notice and whether or not it is
provided that a time period commences after notice is given or after notice is received.
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9 5,1
ARTICLE XLI
MISCELLANEOUS PROVISIONS
Section 41.1. Captions. The captions of this Lease Agreement and the index preceding it
are for convenience and reference only and in no way define, limit or describe the scope or intent
of this Lease Agreement, nor in any way affect this Lease Agreement.
Section 41.2. Conditions and Covenants. All the provisions of this Lease Agreement
shall be deemed and construed to be conditions as well as covenants, as though the words
specifically expressing or importing covenants and conditions were used in each separate
provision.
Section 41.3. Entire Agreement. This Lease Agreement contains the entire agreement
between the parties and shall not be modified in any manner except by an instrument in writing
executed by the parties or their respective successors or assigns in interest.
Section 41.4 Time of Essence as to Covenants of Lease Agreement. Time is of the
essence as to the covenants in this Lease.
Section 41.5. Recording, Documentary Stamps. This Agreement, or a memorandum
hereof in form mutually satisfactory to the parties, shall be recorded among the Public Records of
Dade County, State of Florida, and either party may cause any modification or addition to this
Lease or any ancillary document relevant to this transaction to be so recorded, and the cost of any
such recordation, cost of any State of Florida documentary stamps which legally must be attached
.L
to any or all of said papers, and the cost of the applicable Dade County and State transfer tax shall
be paid in full by Lessee.
132 - 115 -
ARTICLE XLH
MINORITY AND WOMEN'S BUSINESS AGREEMENT
[intentionally left blank]
ARTICLE XLIH
COVENANTS TO BIND AND BENEFIT RESPECTIVE
PARTIES AND TO RUN WITH THE SUBJECT PROPERTY
Section 43.1. Covenants to Run with the Subject Property. All covenants, agreements
conditions and undertakings in this Agreement shall extend and inure to the benefit of and be
binding upon the successors and assigns of each of the parties, the same as if they were in every
case named and expressed, and they shall be construed as covenants running with the Subject
Property and the Improvements. Wherever in this Lease Agreement reference is made to any of
the parties, it shall be held to include and apply to, wherever applicable, also the officers,
directors, successors and assigns of each party, the same as if in each and every case so expressed.
ARTICLE XLIV
[Intentionally left blank]
ARTICLE XLV
GENERAL PROVISIONS
Section 46.1. Conflict of Interest. No member, official, or employee of the Lessor shall
have any personal interest, direct or indirect, in this Lease Agreement, nor shall any member,
official, or employee participate in any decision relating to this Lease Agreement which affects his
or her personal interests or the interests of any other entity or Person in which he or she is,
I i
- 116 - J�7 GC.I s-�' 13 3
directly or indirectly, interested. No member, official, or employee of the Lessor shall be
personally liable to the Lessee, its successors and assigns, or anyone claiming by, through or
under the Lessee or any successor in interest to the Subject Property, in the event of any default
or breach by the Lessor or for any amount which may become due to the Lessee, its successors
and assigns, or any successor in interest to the Subject Property, or on any obligation under the
terms of this Lease Agreement.
Section 46.2. Brokerage. The Lessee and the Lessor each represent and warrant to the
other that neither has dealt with any broker or finder in connection with the transactions
contemplated and each agrees to indemnify, defend and hold the other harmless of and from any
and all manner of claims, including, but not limited to, reasonable attorneys fees and expenses,
incurred by the other party and arising out of any claim by any broker or finder if it is ultimately
determined that either party has dealt in contravention of its representation and warranty.
Section 46.3. Assignability and Binding Effects. Subject to all provisions respecting the
rights of assignment or Subleasing, this Lease Agreement shall be binding upon and inure to the
benefit of the respective successors and assigns of the parties hereto.
Section 46.4. Duplicate Originals. This Lease Agreement may be executed in any number
of copies, each of which shall constitute an original of this Lease Agreement. The warranties,
representations, agreements and undertakings shall not be deemed to have been made for the
benefit of any Person or entity, other than the Parties .
Section 46.5. Equal Employment Opportunities. The Lessee agrees that during
construction of the Leasehold Improvements: (a) it will not discriminate against any employee or
applicant for employment because of race, creed, color or national origin and will take affirmative
action to assure that applicants are employed and that employees are treated during employment
c
134
-117- ►)
without regard to race, creed, color or national origin; (b) post in conspicuous places, available to
employees and applicants for, employment, notices the form of which is to be provided by the
Lessor setting forth provisions of this nondiscrimination clause; (c) in all solicitations or
advertisements for employees placed by or on behalf of the Lessee state that all qualified
applicants will receive consideration for employment without regard to race, creed, color or
national origin; and (d) to send to each labor union or representative of workers with which the
construction contractor has a collective bargaining agreement or other contract or understanding
a notice, the form of which is to be provided by the Lessor, advising the -union or representative
of the Lessees commitments and posting copies of the notice conspicuous places available to
employees and applicants for employment.
Section 46.6. Declaration of Termination. With respect Lessors rights to obtain
possession of the Subject Property and the Improvements or to revest title in itself with respect to
the leasehold estate of the Lessee in the Subject Property and improvements, the Lessor shall have
the right to institute such actions or proceedings as it may deem desirable to effectuate rights
including, without limitation, the right to execute and record or file in the Public Records of Dade
County, Florida, a written declaration of the termination of all rights and title of Lessee in the
Subject Property and the Improvements and the revesting of any title in the Lessor as specifically
provided in this Lease Agreement.
Section 46.7. Authority.
(a) The Lessor and Lessee represent to each other as follows:
(i) That each has, and has exercised, the applicable Legal Requirements
necessary to adopt, execute and deliver this Lease Agreement and perform its obligations;
(ii) That this Lease Agreement has been duly executed and delivered by each
and constitutes a valid and binding obligation of each enforceable in accordance with its terms,
conditions, and provisions; and
(b) Lessor specifically represents that the execution and delivery of this Lease
Agreement has been duly authorized and is in accordance with and pursuant to all applicable laws
and ordinances (including without limitation those of the Lessor) and the Constitution of the State
of Florida.
Section 46.8. Waiver of Jury Trial. The Parties hereto agree to waive any and all rights
to a jury trial for the resolution of any disputed matters which may arise in connection with this
Lease.
In witness, the Lessor has caused this Lease Agreement to be executed in its name and on
its behalf by the City Manager of the City of Miami, Florida the City Clerk of the City of Miami,
Florida, and the Lessee has signed as of the date and year first above written.
ATTEST:
WALTER J. FOEMAN
City Clerk
136 - 119 -
CITY OF MIAMI, a municipal corporation of
the State of Florida
CESAR H. ODIO
City Manager
ATTEST:
APPROVED AS TO INSURANCE
REQUIREMENTS:
Risk Management Department
LKK/pb/W 124
07/ 18/96 1:08 PM
PARROT JUNGLE & GARDENS, INC.,
a Florida Corporation
APPROVED AS TO FORM AND
CORRECTNESS:
LIM
A. QUINN JONES, III
City Attorney
-120-
STATE OF FLORIDA)
)SS:
COUNTY OF DADE )
I, an officer authorized to take acknowledgements, hereby certify that on this day of
1996, personally appeared before me Dr. Bernard M. Levine known to me to be
the President of Parrot Jungle & Gardens, Inc., a Florida corporation, and known to me to be the
person who executed the foregoing instrument, and he acknowledged the execution thereof as the
free and formal act of the said corporation. Dr. Bernard M. Levine is personally known to me or
produced
as identification.
WITNESS my hand and official seal in said County and State the day and year last
aforesaid.
PRINTED, STAMPED OR TYPED
NAME OF NOTARY PUBLIC
Did Take An Oath
Did Not Take An Oath
Personally Known
Produced I.D.
Type of I.D. Produced:
My Commission Expires:
SIGNATURE OF NOTARY PUBLIC
STATE OF FLORIDA
.L
- 121 -ss��!
�° 51
STATE OF FLORIDA)
)SS:
COUNTY OF DADE )
I, an officer authorized to take acknowledgements, hereby certify that on this day of
1996, personally appeared before me Cesar H. Odio and Walter J. Foeman,
respectively, known to me to be the City Manager and the City Clerk, respectively, of the City of
Miami, a municipal corporation in and under the laws of the State of Florida, and known to me to
be the persons who executed the foregoing instrument, and they severally acknowledged the
execution thereof as the free and formal act of the said municipal corporation. Said persons are
personally known to me or produced as identification.
WITNESS my hand and official seal in said County and State the day and year last
aforesaid.
PRINTED, STAMPED OR TYPED
NAME OF NOTARY PUBLIC
Did Take An Oath
Did Not Take An Oath
Personally Known
Produced I.D.
Type of I.D. Produced:
My Commission Expires:
SIGNATURE OF NOTARY PUBLIC
STATE OF FLORIDA
- 122 - 64-� �