HomeMy WebLinkAboutR-96-0671J-95-559
9/26/96
9 6 — 671
RESOLUTION NO.
A RESOLUTION AUTHORIZING THE CITY MANAGER TO
EXECUTE A LEASE AND DEVELOPMENT AGREEMENT, IP1
A FORM ACCEPTABLE TO THE CITY ATTORNEY, WITH
PARROT JUNGLE AND GARDENS, INC:. FOR THE
DEVELOPMENT AND OPERATION OF A BOTANICAL
GARDEN ATTRRCTTON ON APPROXIMATELY 18.6 ACRES
OF WATSON ISLAND FOR A PERIOD OF FORTY—FIVE
(45) YEARS WITH AN OPTION TO EXTEND 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 YEARS THREE AND FOUR OF LEASE
TERM;, AND $400,000 FOR EACH AND EVERY LEASE
"g
YEAR. THEREAFTER, OR NOT LESS THAN FIVE
PERCENT (5�) OF GROSS REVENUES OF REVENUES UP
TO $20 MILLION AND SIX PERCENT (6%) OF GROSS
REVERSES OF REVENUES IN EXCESS, OF $20
MILLION, WHICHEVER IS GREATER, INCLUDING A.
RENT ESCALATION PROVISION BEGINNING ON THE
FIRST DAY OF THE TENTH (10TH) LEASE YEAR AXIM
AT TEN (10) YEAR INTERVALS THEREAFTER TN
ACCORDANCE WITH SECTION 5.2 OF SAID LEASE AND
DEVELOPMENT AGREEMENT; SUBJEC'.P TO S§XJCH
ADDITIONAL CONDITIO14S AS ARE PROVIDED IN THE
AGREEMENT; AND SUBJECT TO THE EXECUTION OF A
E z 1r
�
PARTIAL MODIFICATION OF RESTRICTIONS .TO DEED"'�
NO..194.47 BETWEEN THE CITY OF MIAMI AND `I'IJE11.1n
.'
BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT
TRUST FUND OF THE STATE" OF FLORIDA.
WHEREAS, Pursuant to applicable Sections of the City
Charier'
and Code pertaining to Unified Development Projects,
Parrot
Jungle and Gardena, Inc. submitted a proposal to the
City cf
Miami 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 opti.ors. to extend for one additional
fifteen (15) year period; and
WHERE -AS, said proposal constituted an offer from said firm
to provide construction, planning, design, construction, leasing
anO./or management services for improvements to said City
property, as well as a commitment for a total capital investmeiat
of not less than $26,300,000 to be carried out in two phases of
development; and
WITEREA13, under the terms of the proposed lease and
development agreement, the City shall receive annual lease,
payments of not leas than $200, 000 for fears 1 and 2 of the terms,
$300,000 for Years 3 and 4 of the term, and. $400,.000 for each and
every lease year thereafter or five percent (5%-) of gross
revenues of revenues up to $20 million and six percent 6k) of
gross revenues for revenues in excess of $20 :pillion, whichever
is greater, including a sent escalation provision beginning %gin
the first day of the tenth (101h) lease year and at ten (10) ,year
intervals thereafter in accordance with Section 5.2 of said lease
and development agreement; and
WHEkEAS, said proposal was duly evaluated according to the
provisions of the Charter and Cade and accepted by the City,
subject to approval of the voters and other required conditions;
and
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WHEREAS, said proposed lease transaction was subsequently
approved by a majority of voters of the City of Miami 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
WHEREAS, the City Manager and the City Attorney have
negotiated a lease and development agreement which governs
detailed arrangements with Parrot Jungle and Gardena, 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 M'IAAMI, FLORIDA:
Section 1.. The recitals and findings contained in the
Preamble to this Resolution are incorporated herein as if fully,
set forth in this Section.
Section 2. The City Manager is hereby authorized!' to
execute a lease and development 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
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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96- 671
approximately 18.6 acres of Watson Island for a period of fatty -
five (45) years with an option to extend 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 of development; paying to the
City of Miami a minimum annual lease payment of not less than
$200,000 for Years I and 2 of lease term, $300,000 for Years 3
and 4 of lease term, and $400, 000 for each and every lease year
thereafter, or not less than five percent (5%-) of grass revenues
of revenues up to $20 million and six percent (6`s) of gross
revenues of revenues in excess of $20 million, whichever is
greater; including a rent escalation provision beginning on the
first day of the tenth (101h) lease year and at ten (10) year
intervals thereafter, throughout the rest of the lease term,
whereby the minimum annual rent shall be .increased as set forth
in Section 5.2 of said lease and development agreement by the
greater of: (i) :Increases in the. Consumer Price Index, as such
increase is calculated in Subsection 5.2(a) therein, provided,
however, that in no event shall such percentage increase ever
exceed thirty percent (30%) during any ten (10) year period; or
(ii) an amount in the sum of one hundred thousand dollars
($100,000); subject to such additional conditions as are provided
in said lease and development agreement; and subject to the
execution of an agreement with the State for a Partial
Modification of Restrictions to Heed No. 19447 between the Cite►
4f Miami and the Board of Trustees 'of the Internal Improvement
Trust Fund of the State of Florida.
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Section 3. This Resolution shall be^ome effective
immediately upon its adoption.
PASSED AND ADOPTED this ?bth day off Lektambe
r OLLO , MAYOR
ATTEST:
ALTL OEMAN
CITY CriERIC
PREPARED AND APPROVED BY:
A KELLY K2ARS N
ASSIS`rANS CITY ATTORNEY
APPROVED AS TO FORM AND CORRECTNESS:
A." i S . �. I
CITY ,AT , Y
L KjBSS/CSK/W1002
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CITY OF MIAW Flu^^RIBA
INTER -OFFICE MEMIORANOUM
f Honorable Mayor and Members
I
of the City Commission
.Approve Lease Agreement %ith
Parrot Jungle & Gardens
40 For Commission Meeting of
Herrett'Stierhoi
.tic=_tSeptember 12, 1996
City Manager �+
'Ci.0S UResolution; Proposed Lease
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 (16) year period. The lessee is required to make a total capital
investment in said property of not less than $26,300,000, to peky to the City minimum
annual lease payments of not less than. $200,000 f6r years I 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
,itt:ached agreement.
The Department of Comma= ity Planning and Revitalization has prepared the attached
documentation with the assistance of the Lane 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-ou med waterfront
Property on Watson Island. The proposal of Parrot Jungle and Gardens, Inc. was duly
evaluated according to the provisions of the Charter arid. 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, was considered and approved by the Goverinor and Cabinet of the
State of Florida sitting as the Board of Trustees for the Inte mal. 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 GonwWasion
rage fto
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 capitals investment of .not less
j 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 be ling year 4 or .not less than 5% of grass revenues up to revenues.
of $20 million and 5% of gross revenues of revenues in excess of $20 mnillion,
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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96" 671
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�•4`c�c1Ch (it Family 1111)
PARROT JUNGLE ON WATSON ISLAND
Additional Benefits to the Cill of Miami
1�
1. Major admission discounts to lPwTot Jungle for residents of the City of
Miami during four months of the year.
2. Free admission to Parrot Jungle for all city employees in those same four
months.
3. Free Training Scholarship at Parrot Jungle for six students a year. ibis six
week summer prom will feature
w Landing and Horticultum
-Food service
Tourism and Hospib ity
- Elaviromental, E&cation
4.' 20% Discount to the City for any functions held at Parrot Jungle, incliidmig
food (utilizing P.J. catering) and gifts. ( plus fi % paid to the city ?
S. Provide free area on Parrot Jungle on Watson Island leasehold for the city
to use as :dire Rescue or Police sub station.
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Wafter Fr�.,man
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CITY OF MIAMI, FLORIDA
INTER -OFFICE
MEMORANDUM
To :
Herrett R. Stierhei.m
DATE : September 20, 1I96 FILE
City Manager .
SUBJECT : Proposed Lease with Parrot Jungle
& Gardens, Inc.
Mom.
,Tack L. Luft
AEfEREMCE5 : Fox City Commission Meeting of
Director
September 26, 1996, Item >1
Dap«art&Aent of Community Planning
Revitalization
Executive Executive Summary, Draft Lease
Ruclosed herein is a. copy of the Executive Summary and the proposed Lease
Agreement between the City and Parrot
Jungle 6 Gardens, Inc., for the botanical
garden destination visitor attraction
on Matson Island. These materials
are. `being disttibuted in connection with the Resolution. scheduled on the
City Commission meeting agenda of September :26, 1996, as Item 11.
cc: Honorable Mayor and Members
r
of the City ol� mission
ty Clerk's Office
City Attorney's Office
Age da Clerk's Office
City Manager's Office
i
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.,.,_XI -
Executive Summary
Lease Terna with
Parrot Jungle and Gardens, Ina ,for
Botanical Garden Attraction on Watson Island
Luse Term:
Initial Tenn of 45 years and the option to extend for one 15 year term
Amount of Rent:
Minimum, annud rent in au amount of:
$200,000 for years 1 and 2' (during construction period)
e $300,000 for year 3 (first year of operation)
$400,000 beginning year 4
+ Thereafter, ,minimum annua► rent to be adjusted every 10 years
bans i on an appraisal of fair market rent
or
A► Perceiifte Reni in €ui amount equal to:
4 5% of gross re, venues up to gross sales of $20 million and
5°lo of gross revenues of gross sales in excess of $20 million
Rent tb commence At time Lessee takes possession of property; payment of rent
due during construction (maximum of 2 years) may be defenvd to years T, 8 and
9 of lease terra.
City Participation Profits on Sale or kssignm►ent of .ease;
City to participate in the sale of Lessee's business or assignment of lease by
receipt of 3% ref gross prods received by Lessee.
]mate of Possession:
Lessee to take of_ prsseession of property not later than 180 days bier date of
lease execution, subjectt to certain unavoidable delays specified in the
A► See
greenmtit, lion 4.3.. ;MOT to the date of possessiok- Lessee sww 3
r
6 prepare Phase l Development Plans for review and approval by die
City, in tubstantiai accordance with the Conceptual Site Plan
obtain financing commitment(s) for Phase 1 Improvements &
provide evidence to the City Manager that such f nancing has been
committed
provide an Enviroranental Condition Acceptance Notice to the City
prepare an application for submission to the State by the City and
rive a determination in the form of a binding letter of
interpretation, whether Rhm I Development must undergo
development of regional impact review
enter into on agreement with. the City for the construction of
inl<;tructure improvements, as may be required from Lessee
Development pro em;
ne botanical gardens attraction to be developed in two phases;
Phase I Developrncnt vwi[l include specified improvements valued at
a tnirrirtrurn of $12.5 million t4 establish the Parrot bungle &
Gardens as a quality South Florida attraction by its opening date.
Construction of Phase I will be completed not later than 24 months
fiorn Lessee's date of possession of property.
In the event that the `IVatson Island sanhazy sewer system i s n6t
completed by the time Phase I hook-up is required by Lessee, the
City will be responsible to provide an altemativc system. a
+► Phase 11 Development will include other planned improvements to
be constructer overt time (but not Later than 10 years) valued at
$13.8 million. Th-ese improvements will enhance and expand
servica and vifhor attraction opportunities at 'tithe garden and
jungle.
i
Wninmurn investmentof Phases I and 11 totals $26.3 million.
A. lPeafonnance and Payment Bond warning the City, as owner or a LeWr of
Credit shall he required from Lessee in an amount equal to 100% of the cost of
' constnwflon of the improvements plus professional design fees associated with
the project. ;.
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96- 671
Use of Subject Property:
Primary permitted uses are those required to operate and manage a
garden and family destination visitor attraction.
® Ancillary uses are those secondary permitted uses associated with
the botanical garden and jungle attraction such as retail and food &
beverage sales. Jet ski concessions shall be prohibiml.
paring:
Within leasehold, Lessee shall construct a 500-space garage.
If necessary, a surface parking lot of adequate sim to meet balance of zoning
requhements beyond the garage's 500-spaces will be provided on the south side
of the island and all costs will be paid by Lessee; lot may be operated by the
City Depatunent of Off -Street Parking.
Public open Vpace on north side of island shall not be permittedfor use as parking area(s)
Bus parking will. be of site (anticipated to be underneath the expressway bridge)
Constrrrctiorr of Road&:
Less= 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. Gardens, including any costs for, reconfiguring circulation
road's to the boat clubs R' nd boat ramp caused by the development of the project.
lehimura Mami-Japan Garden.,
Lessee shall be responsible for all costs associated with the possible relocation,
design and construction of the Ichimura Carden; 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
96- 671
Envirocamental Conditions:
Phase I environnmental assessment costs to be paid by idessec; should a Ph&w id
envimmn:ental Usessment be required and way subsequent remediation and/or
disposal be required, City and Lessee agwe to discuss a mutually fair and
equitable distribution of costs to be incurred to cwry out ivnicdiation activities.
j Pnrivt Jungle Property Located in Pincerest:
city to consider ro sais that may be brought to the. C i ' . s P !� Y � ty s atieraticrn
dated to the disposition of Parrot Jungle properly in Pinecrest.
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TABLE OF CONTENTS
ARTICLE I
EXHIBITS AND DEFINITIONS
Section 1.1
Exhibits
4
Section 1.2
Defined Terns, Singular, Plural and Gender
4
ARTICLE 11
THE DE MISE
Section 2.1
Tlic Demise
14
Section 2.2
The Leasehold Improvements to Become the Property
14
of Lessor
Section 2.3
Deliveq of Title to Lessor
14
ARTICLE M
TERM
Section 3.1
Lease TerYn
15
ARITCLE IV
Section 4.1
The Leasehold Improvement.-
16
Section 4.2
Lessee's Financial Obligations
17
Section 4.3
Delivery of Possession of Subject Property
18
("Possession Date")
Section 4.4
Additional Security for Lessee's Construction Obligations
20
Section 4.5
Time for Commencement and Completion of Construction
23
of the Phase I Leasehold Improvements
Section 4.6
Manner of Construction of Phase I & Phase 11 Leasehold
Improvements
23
Section 4.7
Temporary Use of Watson Island During Construction
of Leasehold Improvements
76
Section 4.8
Sanitary Sewer System
27
ARTICLE V
RENT
Section 5.1
Amount of Rent
28
Section 5.2
Rent Payment Deferral
29
Section 5.3
Rent Escalation
30
Section 5.4
Adjustment to Minimum An.,,,.W Rent in the Event of Extension
31
Section 5.5
Security Deposit
32
Section 5.6
Place of Payment
33
Section 5.7
Rent to be Without Deduction
34
Section 5.8
Payment of Rent in Event of Loss or Damage
34
Section 5.9
Alternative Rent Payment Schedule
34
ARTICLE V1
MORTGAGES AND MORTGAGEES
Section 6.1
Leasehold Mortgage
34
Section 6.2
No Waiver of Lessee's Obligations or City's Rights
39
96- 671
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ARTICLE VII
A1DDITIONAL CONDITIONS OF LEASE AGREEMENT
AND
RESTRICTIONS UPON USE OF SUBJECT PROPERTY
Section 7.1
Certain Conditions of Leasing
40
Section 7.2
Mitigation of Impact on Adjacent Residential Areas
40
Section 7.3
Restriction Covenants
42
Section 7.4
Additional Conditions and Restrictions Upon Use of Subject
Property
$.1
Section 7.5
Signage
44
ARTICLE VIII
RESTRICTIONS ON AND TRANSFERS OF LESSEE'S LEASEHOLD
ESTATE
Section 8.1
Representations as to Development of Project
45
:Section 8.2
Definitions
45
Section 8.3
Transfer
46
Section. 8.4
Notice of Transfer, Information .as to Shareholders
47
Section 8.5
Criteria for Consent for Assignments and/or Purchase of
Subject Property
48
Section 8.6
Effectuation of Certain Pennitted Transfers
49
Section 8.7
Transfers of the City's Interest
50
Section 8.8
Acceptance of Rent from Transferee
50
Section 8.9
Participation on Sale of Lessee's Business and/or Transfer
50
ARTICLE IX
EASEMENTS
Section 9.1
Easements
51
Section 9.2
Confirmatory Instruments
52
ARTICLE X
PA.'XMLNT OF TAXES, ASSESSMENTS AND OT"IIER
IMPOSITIONS
Section 10.1
Payment of Impositions
53
Section 10.2
Payment of Ad Valorem Read Property Taxes
53
Section 10.3
Lessee's Right to Contest Impositions
53
Section 10.4
P ayrnent of Ad Valorem Taxes to the City of Miami
55
Section 10.5
Proof of Payment
55
ARTICLE XI
INSURANCE
Section 11.1
Inswance, on the Leasehold Improvements-
55
Section 11.2
Other Insurance to be Carried
57
Section 11.3
Delivery of Insurance Policies
58
Section 11.4
Adjustment of Loss
59
Section 11.5
Insurer to be Approved - Premium Receipts
60
Section 11.6
Waiver of Subrogation
60
ARTICLE XII
RECORDS AND AUDITING
Section 12.1
Records and Sales
60
Section 12.2
Audit
61
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ARTICLE XIII USE OF THE SUBJECT PROPERTY AND THE
LEASEHOLD IMPROVEMENTS
Section 13.1
Limited Representations by Lessor
62
Section 13.2
Lessee's Representations
65
Section 13.3
The Leasehold Improvements to be Open to .Public
66
Section 13.4
Compliance with Laws
66
Section 13.5
Right to Contest Compliance
66
Section 13.6
Use of the Subject Property
67
Section 13.7
Parking
67
Section 13.8
Future Parking Requirements
67
Section 13.9
Ichimura-Miami Japanese Garden and Brown House
67
Section 13.10 Brown House
68
ARTICLE XIV
REPAIRS, MAINTENANCE AND IMPROVEMENTS
Section 14.1
Repair of the Leasehold Improvements
68
Section 14.2
Alteration of Exterior Improvements
69
ARTICLE X'
LESSOR'S RIGHTS TO PERFORM LESSEE'S
COVENANTS; REIMBURSEMENT OF LESSOR FOR
AMOUNTS SO EXPENDED
Section 15.1
Performance of Lessee's Covenants to Pay Money
70
Section 15.2
Lessor's Right to Cure Lessee's Default
70
Section 15.3
Reimbursement of Lessor and Lessee
71
ARTICLE XVI
DAMAGE OR DESTRUCTION
Section 16.1
Definitions
71,
Section 16.2
'Lessee's Duty to Repair, Restore or Replace the Leasehold
Improvements After Damage
71
Section 16.3
Performance of Restoration Work
73
Section 16.4
No Right to Terminate
73
Section 16.5
Lessee's Right to Termfi mte in Last Five Years
73
Section 16.6
Payment for Construction of the Restoration Work
73
Section 16.7
Collection of hismance Proceed.
74
Section 16.8
Unused Insurance Proceeds and Deposits
74
ARTICLE XNII ARBITRATION
Section 17.1 Arbitration 74
Section 17.2 Proced► ms 75
ARTICLE K VIIi MECHANICS LIENS
Section 18.1 Discharge of Mechanics Liens 77
ARTICLE XIX COVENANT AGAINST WASTE AND INSPECTION
Swoon 19.1 Waste 79
Soc
tion 19.2 Inspection of aub, oct Property I
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ARTICLE XX. ENVIRONMENTAL LIABILITY
Section 20.1
Definition of Tcrnts
79
Section 20.2
Environmental Warranty of Lessee
80
Section 20.3
Investigation of Environmental Condition of the
Subject Property
81
Section 20.4
Lessor's Representations, and Warranties
82
Section 20.5
.allocation of financial Responsibility for Cleanup of
Existing Contamination
82
Section 20.6
Lessee's Liability for Contamination During Term
of Agreement
82
Section 20.7
Lessor's Liability for Contamination During Lease Terni
83
Section 20.8
Indemnity
83
Section 20.9
Phase I Environmental Assessment at End of Lease Term
83
Section 20.10
Survival of Lessee's Obligations
84
ARTICLE XXI PUBLIC: I. rILITY CHARGES
Section 21.1 Lessee to Provide and Pay for Utilities 84
Section 21.2 Lessor Not Liable for Failure of Utilities 84
ARTICLE XXII INDEMNIFICATION OF LESSOR
Section 22.1 General Indemnification of Lessor Without Limitation of
Any Other Indemnity Given hereunder 85
ARTICLE X3aH
LIEN FOR RENT AND OTHER CHARGES
Section 23.1
Lien for Rent
86
ARTICLE XXIV
Intentionally left blank
86"I
ARTICLE XXV
CONIDEMNATION
Section 25.1
Entire Subject Property Taken by Condemnation
86
Section 25.2
Partial Taking of Subject Property by Condemnation
87
Section 25.3
Adjustment of Minimum Annual Rent Upon Partial Taking
88
Section 25.4
Deposit of Condemnation Award with ,Escrow Agent
89
Section 25.5
Rights of Leasehold Mortgagee
89
Section 25.6
Temporary Taking
89
ARTICLE XXVI DEFAULT PROVISIONS
Section 26.1
Events of Default- :fault; Lessee
90
Section 26.2
Remedies in Event of Lessee's Default
91
Section 26.3
Waivers and Surrenders to be in Writing
92
Section 26.4
Rights of Leasehold Mortgagee Upon Lessee's Default
93
Section 26.5
Events of Default - Lessor
93
ARTICLE XXVII '
INVALIDITY OF PARTICULAR PROVISIONS
Section 27.1
Invalidity of Piovisions
94
ARTICLE XXVIII QUIET ENJOYMENT
Section 28.1 Quiet Enjoyment 95
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AwriCLE XXIX LESSOR'S 'TITLE AND LIEN
Section 29.1 Title to Leased Property
Section 29,2 Lcssec Not to Encumber Lessor's Interest
ARTICLE XXX Intentionally left blank
ARTICLE XXXI LIMITATION OF LIABILITY
Section 31.1 Limitation on Liability of Lessee
ARTICLE XXXII
ESTOPPEL CERTIFICATES
Section 32.1
Estoppel Certificates
ARTICLE XXXIII
REMEDIES CUMULATIVE
Section 33.1
remedies Cumulative
Section 33.2
Waiver of Remedies Not to be Inferred
ARTICLE XXXI'V SURRENDER AND HOLDING OVER
Section 34.1
Surrender at End of 'Term
Section 34.2
Rights Upon Holding Over
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SI.tELEA.SES
Section 35.1
Subleming
Section 35.2
Nondisturbance and Attornrnent
ARTICLE XXXV I FINANCIAL STATEMENTS
Section 36.1 Financial Statements
.ARTICLE XXXVII
MODIFICATION
Section 37.1
Modification
ARTICLE XXXVIII CONVEYANCE BY LESSEE TO LESSOR
Section 38.1
C=veyance by Lessee to Lessor
ARTICLE XXXIX
APPLICABLE LAB'
Section 39.1
Applicable Law
ARTICLE XIa
NOTICES
Section 40.1
tamer of Mailing Notices
Section 40.2
Notice to Leasehold .Mortgagees
Section 40.3
Sufficiency of Service
Section 40.4
When Notice Deemed Given or Received
ARTICLE XLI MISCELLANEOUS PROVISIONS
Section 41.1 Captions
Section 41.2 Conditions and Covenants
Section 41.3 Entire Agreeeinent
Sections 41.4 Time of Essence as to Covenants of Lease Agreement
Section 4 1. 5 Recording, Documentary Stamps
95
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97
98
98
99
99
100
100
100
101
101
102
102
102
103
103
103
104
104
104
104
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ARTICLE XLII MINORITY AND WOMEN'S BUSINESS AGREEMENT
Section 42.1 Minority and Women Participation
105
Section 42.2 Equal Employment Opportunities
105
ARTICLE XLIII COVENANTS TO BIND AND BENE)F`IT RESPECTIVE
PARTIES AND TO RIJN WITH THE SUBJECT PROPERTY
Section 43.1 Covenants to Run with the Subject Property
106
ARTICLE XLIV UNAVOIDABLE DELAY
Section 44.1 Unavoidable Delay(s)
106
Section 44.2 Manner of Notice of Unavoidable Delay(s) and Conditions
With Respect to Performance of Obligations
107
Section 44.3 , Payment of Minimum Annual Rent and/or Percentage Rent.
in the Event of an Unavoidable DelAy
107
ARTICLE XLV GENERAL PROVISIONS
Section 45.1 Conflict of Interest
108
Section 45.2 Brokerage
108
Section 45.3 Assignability and Binding Effects
108
Section 45.4 Duplicate Originals
108
Section 45.5 Authority
109
Section 45.6 Waiver of Jury Trial.
109,
Section 45.7 Attorney's Pees and Expenses
109
EXKI.BIT A - Sketch of Watson Island
EXIIBIT B - Survey of Subject Property
EXHIBIT C - Legal Description of Subject Property
EXITII3I"T D - Conceptual Site Plan
EXHIBIT E -, Infrastructure Improvements
EX1MIT E - Deed and Partial Modification of Restrictions
EINMBIT G - Possession Date Certificate
EXHIBIT H - Survey of Inchimura Miami Japan'Garden
� ..' 671.
r;
LEASE AND DE4'EL0p'MENT AGREEIW.,NT
This Lease and Development Agreement (the "Lease" or "Lease Agreement")
made as of the �, 1996, between the City of Nlianu, a maunicipai
corporation of the State of Florida acting by and through the City Manager (the "City
Manager"), awl 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 I1000 Southwest 57th Avenue, Miami, Florida 33156, ("LESSEE").
S rATEMENiT OF RACKGItG€3NID AND PURPOSE
The City is owner, in fee simple, of all that certain land located in the City of
Miami, Dade County, Florida, which is known as and referred to herein as "Wamn
Island". 'Watson Island is shown on the sketch attached hereto as Exhibit A. For ft
purpose of this Lease, Watson Island consists of the following parcels:
A. A parcel of land shown on the ' survey attached as Exhibit B and legally
described in Exhibit C and shown and designated on Exhibit A and in
this Lease as the "Subject JP.rWerty
R. The remainder of Matson Island as shown on Exhibit A (hereinafter
"Watson Island").
Pursuant to the authority expressly conferred in the City of Miami Chaffer, and
general law, the City Commission on May 25, 1995, adoptW Resolution No.. 95-415"
which authorized Ike publication of a .request for proposals for the deveiopmeont of a
Botanical Garden Attraction, and related uses, on as much as 18.6134 acres, of City -
owned waterfront property and adjacent bay bottom located at Wacson bland, Miami,
Florida.
Lessee submitted a proposal on August 29, 1995, which was approved by voter
referendum by die electorate of the City of Miami on November 7, 1995, (the
96- 671
"Proposal"). The Proposal consists of development of a project to be known as
"Parrot Jungle & Gardens of Watson Island," which could from time to time include,
but not be limited to, the following amenities, as depicted in Exhibit ►D, (the
"Conceptual Site Plan") and which arm to be more particularly ,described in the Phase I
and Phase U ",Mftvelopment Plans":
I. .A,ttrmctions to include:
Jungle 'Trails & Gardens
Jungle Paver
Semi -Formal Gardens
Aviaries and Bird Exhibits
Baby Bird Nursery & Hatchery
Monkey Village
Fit Ape Care Facility
FlaaAingo Lake
Everglades Lake
Posing and Photography Area
Terrarium and Education Center
Reptale Exhibits
South Florida Aquatic Exhibit
Children's Aadv(-.mum Park
Beacbfront Recreatien Area
Picnic Pavilions
Brown (louse:
Boat Landings
2. paaartuetlSt>ecial Event Facility Meegag Rooms
3. Theater - in+cfuding:
Parrot Bowl
Jungle Theater & Wildlife Showcase
Terrarium Theater
4. Food Service Facilitiesd such as:
Parrot Cafe
Japanese Tea boom
Terrartam Food Court
Family Attraction Centex
Food Carts/Picnic Service
2 96- 671
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5. retail Service Facilities such as:
Parrot Jungle Emporium
Terrarium Gift Shop
fa. Service and SuR22rt builkIg to include:
Maba Entrance mg Entry Building
Mainteasance Facility
Service Area
Vewruary Hospital
Plant Nursery
Parking Areas
Security
Ftestrooms
Educational Complex
Living residence for animal beepers
It is the mutual desire of the Parties that a portion of Matson Island be leased
and demised by the lessor to the Lessee for the pxurposes set forth in the Proposal
subject to and upon the terms and conditions contained herein.
The Statement of Background and Purpose. is a description of the intent of the
Parties, on the Lease Rate, with regard to development and construction of the Pro,ect
and is not intended to limit the right, or the obligations of the Parties, during the Lease
Term, except to the extent that it contains definitions and terms which are used
elsewhere in this Lease. The descriptions of the amenities contained in this Statement
of Background and Purpose are for illustrative purposes only, and where in . conflict,
the Construction Documents prepared by the see, aaiA approved by the Lesser 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:
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ARTICLE I
EXHIBITS AND DEFI(WIONS
Section 1.1.
Exhibits. Attached hereto and forming a part of this Lease
Agreement are the following Exhibits:
Exhibit A
-- Sketch of Watson Island
Exhibit B
Survey of Subject Property
Exhibit C
-- Legal Description of Subject Property
Exhibit D
Conceptual Site Plan
Exhibit E
— infrastructure Improvements
Exhibit F
-- Deed and Partial Modification of itestActions
Exhibit G
-- Possession Date Certificate
Exhibit H
-- Survey of Ichimura Miami Japan Garden
Section 1.2. Defined Perms; Singulp , 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 way be
applicable in the particular context. More specifically, however, for the purposes of
this Lase Agreement the following words shall have the meanings attributed to tbem in
this Section:
"Acceptable Operator" reams an entity possessing the business experience,
good reputation, financial reso=es, and adequate personnel necessary for the proper,
performance of all of Lessee's obligations under this Lease in a manner consonant with
the quality, refutation and econornic viability of the project, includirxg (without
limitation) the obligation of Rents theretofore payable by Lessee under this L mse and
possessing a minimum of Five (5) years experience in the successful operation Wd
management of a destination visitor attraction, which is approved by the City riisnager,
which approval shall not be unreasonably withheld or delayed,
4 96- 671
"Ad, iacent Property" means alt of the public property located north of the
MacArthur Causeway, wtdch is depicted as "Public Opera Space" on the sketch of
Watson Island attached hereto and trade a part hereof as Exhibit "A".
"Business 1?� means Monday through Friday excluding legal holidays.
"Certificate of Ob cupancy" means the certificate issued by the City of Miami
Building and Zoning Department as defined within the South Florida Building Code
Section 307.1 and in accordance with City of ML*%' Mi Ordinance No. 61.45.
"Cites" or the "Lessor" has the meaning ascribed to it in the opening paragraph
of this Lease Agreement.
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.
Construction Documents" means the final working drawings a ul specifications
including the following information:' definitive archi,ectural and landscape archctecWMI
drawings; definitive foundation and structural drawings; definitive electrical and
mechanical drawings; and plans for all lighting facilities affecting the exterior
appearance of the Leasehold Improvements.
"Consumer Price Index" means the monthly indices for the. applicable month
published by the Bureau of Labor Statistics of the united States Depsu-tment of Labor
as "The Consumer Price Index for All Item, Miami -Ft. I..auderdale, (Base ` mr 1982-
84=100)". '
y
"CogMwal Site Plan" means the site plan set forth in Exhibit "D►", and as
amended from time to time.
'Control" (including correlated meanings such as the terms controlling,'
controlled by, and under common control with) as used with respect to the I.4ssee, its
successors or assigns, means the possession or the power to direct the management
decisions and policies of Lessee, through the ownership of voting securities, beneficial
interests or by conntract.
"idea vel ment Place;* has the meaning ascribed to it in Section 4.6.
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"Environmental Condition Acceptance Notice" means written notification from
Lessee to Lessor stating that lessee completed its investigation and evaluation of the
environmental conditions on the Subject Property, and that Lessee elects to proceed
with the development of the Project.
"Event of Lessee's Default" has the meaning, ascribed to it in Section 26.1.
"Event of Lessor's Default" has the meaning ascribed to it in Section 26.5.
'Extension Term" has the meaning ascribed to it in Section 3.1(b).
"Fair Market Rent" means the most probable rent that a sitWlar property being;
used as a fkmily attraction, with such additional uses as may be located on the Subject
Property, should bring in a competitive and open market under all conditions requisite
to a fair lease, the Lessor and I..essee each acting prudently, knowledgeably, and
assuming the rent is not affected by undue stimulus. 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 actin 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 cash in U.S. dollars or in germs 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..
".,(nosy Revenue" means all revenue actually received by the Lessee and by
Lessee's Subtenants, derived directly from business located on the Subject Property'
conducted by Lessee and any of Lessee's Subtenants:
1. toss Revenue shill include:
a. Revenue derived from advertising conducted on the Subject Property;
b. Revenue derived from any atxi all trademarks, logos, or any other
legally protected trademark ovined and/or controlled by the Lessee
which is used in identification of this specific Subject Property.
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96 - 671,
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Notwithstanding the foregoing the Parties hereto acknowledge that
Lessee may develop properties, attractions and products using the :name
"Parrot Jungle" and/or variations of the name "YArrot Jungle".
Puthermore, the Lessor acknowledges that the "Parrot Jungle mW
Gardens of Watson Island" has only a license to use the nay "Parrot
Jungle and Gardens of Watson Island". It is not the intent of the Us or
to be entitled to revenue from the Lessee for use of the name "'Parrot
Jungle", or variations of the name unless it is the Lessee's iraden+ame.
All other uses of the name Parrot Jungle or variations thereof in
conjunction with other attmetiotrs, products, advertising, And any other
use shall remain the interest of and property of Lessee and /or Ussee's
assigns, iicenv= and such;
C.
Any parking revenue with regard to the Subject P'roperr/.;
d.
Revenue from sales, rentals, and services, including the hiceraing and/or
11
rentals of anima, both for cash and on credit, rendered in or upon the:
Subject Property by personnel and from other sources, such as pay
telephones, vending machines, and entertainment devices;
e.
All sales of admission tickets to the Subject Property whether or not
made or rendered in, upon, or from the Subject Property;
f.
All revenue received by Lessee from, without limitation, ticket
agencies, tour operators, hotels, travel agencies, bus, and boat
companies far the right to sell admission tickets, or entry right`s to the
,
Suubject Property;
g.
All revenue paid to Lessee or Lessee's Subtenants in connection with thy'
use of the Subject Property, any facility thereon, or any portion thereof
for any period of time, including without limitauaxi, for,
(1) special events, sLzh as banquets, concerts, receptions and
parties; and
(ii) notion picwre, commercial filming- pugsose.s or
commercial photographic puiTases.
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96 - 671
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h. Revenue received for the: naming of all or any portion of the Subject
Property, or the Leasehold Improvements except when such revenue has been received
and utilized by Lessee to pay for the costs of construction of the Leasehold
hnprovements. It is the intent of the Parties that such revenue shall the excluded from
Gross Revenue only if Lessee utilizes such revenues for construction of the phase I and
Phase 11 Leasehold Improvements, and any improvements ronst eted thereafter for
purposes of enhancing or upgrading the Leasehold Improvements, and not for, routine
repair or replacement;
2. Brass Revenue shall not Include the following items:
a. Exchanges of merchandise between different locations of Lessee or a
controlled party or Subtenants 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;
b. Returns to shippers and manufacturers for credits
C. Sale of trade fixwm yr operating equipment after use thereof in the
conduct of Lessee's busims on the Subject Property-
d. All suans and credits received in settlement of claims for Ioss or damage
to merchandise and all credit compmy ch?rges;
e. Sales made from the Subject Property of goods or items which are to be
shipped directly to the purchaser from another location that are
wholesahe, or not retail;
f. Amount of any sales or excise tax levied upon retail sales and payable
over to the appropriate govermZental authority;
g. Rents paid to Lessee by Subtenants.
h. Any revenue collected with regard to the Subject Property which is not
actuatlY involved with the day to day business of the S.Oject Property
such as the ftrianncing of the Lessee's interest in the Subject Property,
sale or assigtunent of the Leasehold kstaw, collection of insurance
Proceeds, collection of Eminent Domain proceeds, monies that are
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96- 671
wilected for evew that are dorw. for charities '.herein the amounts
collected are paid to the charitable sponsor or not -for -profit
organizations, and such.
3, Gross Revenue shall be reduced by the following Items:
a. Amounts of any refunds or allowances made on mer+charAise claimed to
be defective or unsatisfactory, or discounts to customers, provided said
amounts had been previously included as part of Goss Revenues, and
that if such refunds, allowances or discounts are in the form of credits to
customers, such credits shalt be included in Cross Revenues when used;
"Impositions" means all governmental assessments, including assessments
imposed by the City, franchise fees, excises, lice= and permit fees, levies, charges
and taxes, including ad valorem real estate taxes on the land urder the Subject Property
and the Leasehold Improvements, general and special, ordinary and extraordinary
properly levied against the Subject Property and the Leasehold Improvements 'or
the Lessee's Leasehold Estate which constitute a lien on the Subject Property or the
Lmsehohd Improvements.
"Initial Tenn" has the meanizig ascribed to it in Section 3.1(a).
"Infrastructure Improvements" means the causeway access roads (if not
constructed by an Entity as defined in Article 4), north side circulation roads, the
Miami 'Yacht Club entrance and driveway, and the Southside Parking Lot (if required),
and the appurtenances connected to such roads, as depicted in Exhibit E.
"%east Date" mum the date this Rase Agreement is last signml by the Lessor
and Lessee, sifter approval by the City of Miami Commission.
"Lease Term" means the Initial Tenn, and of the Lessee elects to extend thee'
term, after Lessee exercises its option with respect thereto, all references in this Lease
to the Lease Term shall be deemed to include the Extension Teruo as such terms are
described and £iced in Section 3.1, and additional extension created by Unavoidable
and/or Permitted Delays.
9
"Lease Year" ,shall mean any period of time consisting of Twelve (12)
consecutive calendar months commencing on the Possession Date and each anniversary
thereafter during the Lease Term .
"Leasehold Improvements" means all the buildings, structures and
improvements, including the improvements d ribed in the approved Phase t and
Phase Il Development Plans and Construction Documents, mttd any improvement
constructed thereafter from time to time during the Leaw 'ferns that are hereafter
located upon the Subject Property; as well as any apparatus and egtuptnent incotpomte d
into the Lemehold 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 equipnnent, 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 fixtLu-es
owners by Lessee, or others which can be removed without defacing or materially
k4uring the Leasehold Improvements.
"Leasehold Nome" nwa ns a mortgage, deed of tms't, or other itnstiument.
which constitutes, or any security interest given in connectionn therewith, which
together constitute an encumbrance or lien upon the I.kssee's Household Estate or arty
pact of it, or any related personal property, and b&ssee's interest in the IxAseholdi
Improvements (including Lessee's interest as sublessor in any p vsent or facture
subleases and any other interest of the Lessee in the Leasehold Improvements and
Personal Property) as security for any loan, imluding the Lessee's constriction loan.
"Leasehold Mogggee" means any holder of the Uasehold Mortgage or mote or
motes secured by it, or any Person to whom title to the Lessee's Leasehold Estate has
been transferred pursuant to foreclosure proceedings or any action in lieu of
fo=losure.
10
96- 671
"Le�eguirements or Applicable law" means applicable laws, Florida
Statutes, codes, City and Dade County ordinames, orders, judgments, decrees and
injunctions from coleus lowing¢ jurisdiction over the Subject Property, rules, and
requirements of State and local boards and agencies with jurisdiction over the Subject
Property, now existing or hereafter enacted, adopted, foreseen and unforeseen,
ordinary and extraordimry, which may be applicable to the Subject Property or any
part of it.
"Lessee" has the meaning &wribed to it in the opening paragraph of this Lease
Agreement as well as Lessee's successors and/or assigns.
"Lessee's Leasehold Estate" means all of Lessee's right, title and interest as
/fusee in, to and under this Lease, the Subject Property and the Leasehold
Improvements.
"Lessee Utility Easement" has the meaning ascribed to it in Subsection
9.1(b)(i).
"Lessee Vehicular Access Easement" has the meaning ascribed to it in
Subsection 9.1(b)(H).
"Minimum Annual Pent" means that minimum rent to it paid as set forth in
Section 5.1 (a).
"Parties" means the Lessor and Lessee.
"Percentage Rent" means that percentage of Gross Revenues, set forth in Section
5.1(b).
"Permitted Dela s " means a delay in the construction and completion of the
Sanitary Sewer System beyond Six (6) months from the Lease Late or Oc tober 1st,
1997, wtaichever occurs earlier, then the times for the, performance of the covenants,
provisions and agreement of this Lease which are expressly subject to this term,
including but not limited to the obligations of the Lessee with respect to, possession,
ar d beginning and/or completion of construction of the Leasehold Improvements, shall
be extended for the period of the delay(s).
"Person" means any natural person, trust, firm, partnership, corporation, joint
venture, association, or any other legal or business entity invesizr ent eriterprise.
11
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"Personal 1?ro2erJ" means all property owned and used by the Lessee or any
Subtenant or Transferee 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
panty.
'Possession Date" meam the elate described in Section 4.3.
"Pfim interest Rate" means that 'ate of interest charged by First Union
National lank of Florida (or if this bank is not in existence or mai ing loans at the
Prhm Interest hate, then the Prince Interest Rate shall be that rate so cluuged by the
bank located in Dade County having the largest net worth at the applicable time) from
time to time can Ninety (90) day contsnercial loans to its most creditworthy corporate
borrowers.
"EMiect" means the Leasehold Improvements, constructed in accordance with
the approved,, Phase I and Phase H Development Flans and Construction Documents,
described in the Statement of Background and Purpose.
"Feast" shalt be as sett forth in Section 5.1 and shalll include any additional rent
occurring or which may occur pursuant to the provisions of this Lease.
"Restoration Work" has the ine;.aning ascribed to it in Sxilon 116.2.
"SanitPst ► Sewer System." means the City Department of Public Works Project
No. B-559€I entitled "Watson Island Sanitary Sewer Project".
"Section", "subsection", "paragraph", "subparagraph", "clause", or "subclause"
followed by a, number or letter means the section, subsection, paragraph, subparagraph,
clause or sTubclause of this Lease Agrftment so designated.
"Southside Parkin I,iit" has the meaning ascribed to it in Section 13.5.
"S ect Property" means the real estate owned by the Lessor and comprising'
all psi' tie land to be demised under the terms of this Lease Agreement, as reflected on
the survey attached hereto as Exhibit B, and the legal description attached hereto as
Exhibit C.
"SubRease" , means any lease (excluding this 1,ease), sublease, license,
concession or other agreement by which Lessee or any person or other entity claiming
under Lessee (including, without limitation, a subtenant or sublicen!=) deudses, ,
12
96 671
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leases, subleases, licenses or subliccnscs to or pen nits the use or occupancy by wwther
person or entity of any part of the Subject Property and Leasehold Improvements
(excluding a sublease considered a 'transfer under tlae provisions of Article VII1).
"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 file
Leasehold Improvements under a Sublease.
"Told Construction Costs" moans all costs, including but not limited to all lid
construction costs, costs of furnishings and fixtures, machinery and equipment, and
also all soa,called soft costs including, but not necessarily limited to, taxes during
construction, interim interest expenses, cost of financing, fining ems, if any,
development costs, architectural, engineering and design fees, survey, title insurance
charges and premiums, permits and licenses, insurance premiums during-oxnstruction,
accounting, marketing costs, advertising, brokerage and all legal fees relating to the
Project, leasing, and construction; utilities, tap -in comiection fees, topograpbical and
soil tests, if any; all payments made to contractors and subcAntracto s, and costs of
similar items, and all other costs related to the Est of the construction of the Leschold
bMrovernents and the portion of the Infrastructure Improvements subject to the
provisions of Section 4.2.
"Trade Name" means "Parrot Jungle & Gardens of 'Watson Jasland' or any other
name which may, be utilized by Lessee or Subtenant during the ise Term for
purposes of identifying and/or maxketing the Subject Property, and any of the
Leasehold Improvements located t1wrein.
"Transfer" has the meaning ascribed to it in Section 8.2.
"Unavoidable Delay(s)" means damage or destruction by fire or other:
casualty, whether simHar or dissimilar, acts of the federal, state, county and/or cif
governments, including acts pertaining to strikes, embargoes, shortages of material or
labor, force majeure, unusually adverse weatihcr conditions, or other like or unlike
events or conditions beyond the control of the Parties, including any coon actions, and
injunctions by third parties.
13
96- 671.
"Watson Island" has the meaning ascribed to it in the Statement of Background
and Purpose.
"Work" paeans all construction to be performed by the Lessee, including any
repairing, restoring, removing, or replacing of the Leasehold Improvements.
TICLE It
THE DEMISE
Section 2.1. The Denise. The Lessor, for and in consideration of the Rents
reserved and of the covenants and agreements made by the Lesseeto be kgat, observed
,and pet1brmed, does demise and lease to the Lessee, and the Iris leases from the
Lessor, the Subject Property, subject only to the permitted exceptious as may be
+excepted pursuant to Section 29.1. hereof.
Section 2.2. The Leasehold vements to 1xxome the Property of
Lessox. So long as this Lease remains in force, ft Ix"s hold Improvements
c onstzucted by the Lessee on the Subject Property " 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 Dome the sole property of the Lessor in fee simple,
and free and clear of all encu ibmaces subject to 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); (H)
any insta.11ments of levies for public improvements not yet due and payable prior to the
termination of :his Lease (for which the Lessee shall remain obligated to pay to f i
extent that they are allocable to the period prior to the termination of this Lease); (iii)
the Lessor's rights and remedies in the event of the terraination of this Lease because of
Lessee's default, and (iv) the rights of any Leasehold ?Mortgagee under this Lease.
Section 2.3. Delivery of "Title to Lessor. Upon the expkation of the L
Tem, or any earlier termination of this Lease, Lessee agrees to execute, aclmoWledge '
acid deliver to Lessor a proper instrument in writing, releasing and quitclaiming to
Wsor all right, title, and interest of Lessee in and to the Leasehold :improvements.
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96-k 671
ARTICLE III
TERM
Section 3.1. Lease "Perm.
(a) Initial Term. This Lease shall be for an initial term of Forty -
Five (45) years, (the "Initial Term"), commeming on the Possession Date and ending
on the date that is Forty -Five (45) years thereafter, unless terminated at an earlier date
pursuant to the terms of this Lease. Witt& Thirty (30) days after the Possession Date,
the City Manager and the Lessee, upon request of either party, shall execute one or
more memoranda rn such forin 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 as well as describing the right to the extension of this Lease, determined in
accordance with this Lease.
(b) The Extension Tenn. The Lessee is hereby granted the option of
extending this Lease for a single Fifteen (15) year period, (the "Extension Terra")
provided the 'Lessee is not in default of any of the material provisions of tthis Lease on
the date of the exercise of the option. The Lessee nay exercise this option at any time
after the Thirty -Ninth (39)' Lease Year. Notwithstanding the aforementioned, the City
Manager, at his sole discretion, may authoiv= the Us-w. to exercise this option at any
time during the Initial Term, provided that the City Manager fin-ft that'authorizing the
Lessee to exercise the extension prior to the Fortieth (40) Lease Year is for the puzpose
of financing additional Leasehold Improvements. To exercise his option, the Lessee
must give the Lessor prior written notice and in the event of extension prior to the
Fortieth (40), Lease Year, the City Manager shall have received and approved the
commitments for fimincing of the additional Leaschold Improvements, which approval
shall not 'be unreasonably withheld or delayed. The Extension Term will be on all of
the sane terms and conditions as contahied in this Lease Agreement except that the
Rent will be adjusted as set forth in Section 5.4.
,s 96— 671
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ARTICLE IV
POSSESSION OF THE SUBJECT PROPERTY AND CONSTRUCTION
OF LEASEHOLD IMPROVEMENTS AND INFRASTRUCTURE
IMPROVEMENTS
Section 4.1 The li sehold Improvements. The Pailies ague that the
development of the .Project described in. the Statement of Background and Purpose utay
be Ktnderraken by the L=sm in Two (2) phases; Phase I, and Phase 11. Accordingly,
the Lessee, at the sole cost and expense of the Lessee, and p% rsuant to proper permits
and substantially in the manner provided by this Section, and in accordance with the
provisidnis of this Lease, law and local ordinance, shall design and construct on the
Subject Proporty the Itasehold Improvements. Th+e ,Lessor shall initially design and
construct the phase I Lemehold Improvements which are to be more particularly
described in the Phase I Develop cent Plate and the Consouction Documents. 1"he
Phase I Uasehold Improvements shall, at minimum, include the foillowiag attraction
amenities:
Jungle Trails and Carden
Jangle River
Semi- Fomtall +gardens
Aviaries and Bird Exhibits
Baby Bird Nursery and Hatchery
Monkey Village
Everglades Lakes/Freshwater Wetland
Posing and Photography Area
Reptile Exhibits
Iehimura Miami -Japan Garden
Brown house
C".hildren's Aduentu►e Park/petting zoo and Play Area
Beachfrout Recreation Area
Picnic Pavilions
Par mt Bowl and Jungle Theater/Wildlife Showcase Open Air Theaters
Food ,Service Facilities
Retail Gift Shops
,Service surd Support Facilities including:
Main Entrance and Entry Building
Enclosed Maintenance Facility
Service Am
Veterinary Hospital
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Plant Nursery
Parking Areas, as required
Security
Restrooms
Lessee shall undertake and complete the design, development and construction
of the Phase 11 Leasehold Improvements, within Ten (10) years of the Possession Date,
subject to Unavoidable Delay anti Permitted Delay. The Lessee may not maodify
and/or amend the Phase 11 Development Plans without the prior written consent of the
City Manager, which consent shall not be unreasonably withheld if such modifications
and/or amendments do not substantially or materially alter the character of the Project.
The Phase H Leasehold Improvements, which are to be more particularly described in
the Phase II Development Plans, shall, at minimum, include the following attraction
amenities:
Infant .Ape Care Facility
Flamingo Lake
Terrarium and Education Center
South Florida Aquatic Exhibit
BanqueWSpeciai Event Facility & Meeting Dooms
Enclosed Terrarium Theater
Food Service Facilities
Family Attraction Itestauraat
Section 4, 2 Lessee's Financial UbliaatioYts. It shall be the sale responsibility
of the Lessee 'to secure mMcient capital to construct the Lewehold Improvements m
such a manner as to meet its obligations tinder this Lease. Lessor; hereby covenants
that Lessee shall expend no less ti--an Twelve Million, Five Hundred Thousand. Dollars
($12,500,000) for the Total Construction Costs of Ply I and the Infrastrmture,
Improvements, and no less than Thirteen Million Eight Hundred Thousand ' Dollar's
($13,800,000) for the Total Construction Coasts of Phase II. Lessee aV= that ire, any
event, during the Lease 'berm, Lessee shall invest no less than Twenty Six Whop.,
Three Hundred Thousand Dollars ($26,300,000) for the Total Construction Costs of
Phase I and Phase H and the Infrastntcture Improvements.
671
It is anticipated that an Entity other than the City ( "Entity" herein defined as
the Federal Government, State of Florida, Dade County, a non-profit organization
and/or like) will pay for the construction of the causeway access roads, notwithstanding
the foregoing, the Parties agree that in the event that an Entity does not pay for the
construction of the causeway access roads, then the Lessee shall pay the costs of design
and construction of the causeway access roads, and. the Lessor and the Lessee shall
enter into an agreeimrit for the construction of the causeway access roads.
4.3. Delivery of Possession of Subject Prnpert5►_(the 'Possess Date"l.
(a.) The City shall deliver possession of Subject Property to Lessee,
and Lessee, subject to the provisions of Article XXIX, Unavoidable Delay and
Permitted Delay., shall take possession thereof within 'Thirty (30) days after the
following ,shall have oczurred:
(i)
The City
Manager
shall have
approved
the
Phase I
Developnge,A Plans, as
provided in
Section
4.6, which
approval
shall
not be
unreasonably withheld or delayed, unless the Phase I Development Plans are not in
substantial accordaLve with the Conceptual Site. Plan; and
(ii) The City Manager shall have received and approved,
which appAwal shall not be unreasonably withheld or delayed, the commWne;'nt or
commitments for the construction and/or permanent financing of the Phase I Leasehold
IWrovesments 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; and
(iii) The City has received the Environmental Condition '
Accepta ce Notice from the Lessee.
(iv) The Lessee shall have prepared, and the Lessor shall have
submitted as the applicant, a request (in such form and content as prescribed by the
state land planning agency) for a binding letter of interpretation with respect, to whether
the Phase I Leasehold Improvements must ruiergo development -of regional -impact
review and shall have received a detein-inetion in the form of''a bimli g letter of
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interpretation as such teams are used in Chapter 380 of the Florida Statutes, as
amended.
(v) The Parties shall have entered/ into an agreement for the
construction of the Infrastructure Improvements.
Ile date that the City delivers possession of the hcbpect Prcpperty to Lessee th
accordance with this Article, by notice in writing, is herein called the "Possession
Date'". Lessor and Lessee agree to execute a Possession Date Ce tificate, in the farm
of the certificate attached hereto as Exhibit G. In the event the Possession Date does
not fall on the first day of the month, the Possession Date stab[ be adjusted to be the
first day of the following month.
(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 with this Lease for .an izidefxidte period of time
during the period of satisfaction of the aforeesaaid 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 .Fifteen ('1.5) Business Days from
receipt by the City of such request. In the event that such review by the City requires
additional or remedial action by the Lessee, the Lessee sb2lt promptly undertake such
additional or remedhd action, but in. no eventt shall the period of time available to the
Lessee, for such .additional or remedial action eycmd MM, (30) Businers Days from
receipt of the City's request unless caused by an Unavoidable Delay; and
(ii) 'file Us= or the Lessor may terminate this Lease if all
of the aforesaid conditions precedent are not ,satisfied m waived on or before Six (6)
rnonum from the Lease Date. Notwithstanding the foregoing Lessee may extend the
time for performance of any of the conditions precedent and Lessee may postpone
taking possession of the Subject Property in the, event of. :
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M
(aa) An t_Jnavoidable Delay in connection with the
Lessee's investigation, evaluation, and/or Clean -Up (if required) of the environmental
condition of the Subject Property. and/or
(bb) Permitted Delay.
No waiver of any of the foregoing conditions precedent shall be intpfied by any
conduct of Lessor or Lessee, including (without limitation) any elmtion by Wskm to
pry with any development activity prior to the satisfaction of all of such conditions
precedent, it being agxeed that any waiver by Lessee of any such condition precedent
shall be effected only by Lessee's express written statement to that effort delivered to
ft City Manager and as to the Lessor by City Manager's express written( statement to
that effect delivered to the Lessee.
(c) Notwithstanding anything herein to the contrary, prior to the
Possession Date, the Lessee shall not be required to perform any o`l its obligations
hereunder except as provided for in Section 20.3 with respect to Lessee's entry upon
the subject Property for purposes of conducting or causing thz investigation and
evaluation of the environmental conditions at the Subject Propeny.
(d) Subject to Lessor's cooperation, the Lessee hereby undertakes
and assumes sole and exclusive responsibility to cause and obtain the pernutfing of all
the Leasehold Improvements in accordance with the Consttuctffon Documents. Lessor
agrees to cooperate fully and promptly in the perniining process ;including, but not
limited to, joining is any permit application, plats, opinion of titles, gap affidavits and
other applicable applications or affidavits if required to do so.
Section 4.4. Additional Security For Lessee's Construction d) li atious. fn
con=don with the commencement and completion of comstattc Lion of the Phase I arm
II Leasehold Improvements, the Lessee further agrees with the Lesser as follows:
(a) Payment and Performance Bond. or Letter of Ctvadiit. Prior to the
commencement of construction of the Phase I and Phase Il Leasehold hprovements,
respectively, the Lessee, at Lessee's sole cost and expense, sl`rall obtain a Payment and
Perform Bond or Letter of Credit.
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-IN
(b) The Payment and Performance Bond shall be issued by a
company authorized to do business in the State of Florida in an mount equal to One
Hundred Percent (100%) of the cost of the Leasehold Improvements plus professional
design fees related to the preparation of the Const. action Documents, for the respective
phan of Leasehold Improvements, naming the City as the owner and the Lessee as the
principal guaranteeing the payment and performance of Lessee's Leasehold
construction obligations hermorder, free of mechanic's or other liens. The conditions
of the payment and perfomume° bond OWI be to insure that the Lessee will:
(i) promptly make payment to allclainwas, as defied in
§.255.05 Florida Statutes, 1995, supplying the Lessee with latx7r, materials, or supplies,
used directly or indirectly by the Lessee in the prosecution of the Work provided for in
this I.caase Agreement; and
(ii) pay the L&ssor all losses, darnagcs, a )ensw, costs, and
attorneys fees, including appellate proceedings, that the LPessor rightfully sustains
because of' a default by the Lessee pursuant to claims made under Florida Statute
255.05; and
(iii) perform the guarantee of all Work aad materials furaaished
,under this Lease Agreement.
The payment andperfornueace brand shall be reduced in amount, as the
Work proceeds a& certified by Lessee's mhitect, and way be, terminated at such bane
as the reVective, Phase I, and Phase II Leasehold Improvements are completed as
evidenced by the issuance of a Cerrtiflicam of Occupancy 'for the respecctive; L=sehold
Improvements; and reasonably satisfactory evidence is provided by the I. s see to the
Cite Manager that the requirements of the payment and perforw&nce bond have been
satisfactorily cone:iuded. The form of the payment and gerfosti-maTrce bond shall be
approved by the City Manager, which approval shall not be unreasonably withheld.
(c) Should Lessee garish to utilize. a Letter of Credit instead of a
Payment and Performance Bond, then the Letter of Credit shall "-'4 in an amount ,equal
to One hundred (100%) percent of the cost of the Leav tcold bnprovernents plus
professional design fees related to the preparation of Elie Construction lDocumnts, for
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A
the respective phase of the (leasehold Improvements and issued by a state or federal
banking institution, if not a state or federal banking institution then an institution
approved by the Finance Director of the Lessor, which approval shall not be
unres- ibly withheld or delayed. The Letter of Credit shall insure the faithful
pert iance by the Lessee of all of its construction obligations, under the same terms
and conditions as the Payment and Performance Bond, as set forth in Section 4.4 (b)
for ft respective phi of the Leasehold Improvements, The L r of Credit small be
renewed annually and shall be maintained at the City's Department of Finance during
ft entire tenrn of construction and until a Certificate of Occupancy is issued for the
respective phase of the Leasehold Improvements. The provisions of this section may
be modified by letter agreement between the Lessee and City Manager.
(d) During the course of construction, the Lessee shall provide the
Lessor (if Lessor requires by notice in writing), once each month, a Certificate of
Lessee's archhect (or copy thereof) certifying that these portions of the Leasehold
Improvemnts completed are in substantial accordance with the permitted Construction
Documents;
(e) During the course of construction, Lessor and any Mortgagee, its
architects, engineers, agents and employees way enter upor at reasonable times, and
inspect the Subject Property, and the construction of the Leasehold Improvements for
the purpose of seeing that the Work conforms with the agreements contained herein.
Lessee shall maintain copies of all Construction Documents and specifications relating
to the construction and the construction site, and Lessor and Mortgagee may examine
the same at all reasonable times; and if mquired by them, Lessee shall frirnish 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
defer, Lessee shall thereupon take such steps as are necessary to correct such
deficiency or omission; provided, however, if Lesser shall contend that Lessor is acting
unreasonably in making any such determination, the .dispute shall be submitted to
22 96— 671
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 Lessee': architect and submit the dispute to him for determination.
Section 4.5. Time for Commencement and Completion of Construction of the
Phase I Leasehold IpTrovements. The Lessee agrees for imelf, its permitted successors
aW assigns, and every permitted. successor in interest that, subject to Unavoidable
Delay and/or Permitted Delay, the Lessee, within One Hundred Eighty (180) days from
the Possession Date, Lessee shall promptly commence the construction of the Phase I
Leasehold Improvements. Within Sixty (60) days after the Possession bate, Lessee
shall provide a timetable for completion of the Phase I Leasehold hVrovernents which
shall include a scheduled completion date which, subject to Unavoidable Delay and
Permitted flay, roust be no later than Thirty (30) months from the Possession Late.
In the event of Unavoidable Delay and/or Perry -clued Delay, the date for commencement
and/or the scheduled completion date shall be correspondingly set back by the same
number of days involved in the period of Unavoidable Delay and/or Permitted Delay.
Seolon 4.6. Manner of Constructions of Phase i arm Phase 11 Leasehold
Improvernents. The City acknowledges that the l ssee shall be submi8ting
Development Plan (which maybe amended from time to time) in stages for approval
for the Phase 1 and H Leasehold Improvements. The City sha l not be required to issue
Permits or other formal governmental approvals to Lessee for a particular please until
the City Manager (subject to the provisions of this Lease Agreement) has approved the
Development Plans for the particular phase for which a permit or other foniW
governmental approval is requested. The Parties hereto agree that: the City Manager
may not unmasonably withhold or delay his approval.
;Y
(a) Development Plans. The Lessee shall submit to the City Manager at
the bores hereinafter set forth, Two (2) sets of Development Plans each for the
construction of the Phase I and Phase II Leasehold Irnprovewens for review to
determine compatibility with the Conceptual Site Plan. For the purpose of this Lam,
"Development Plans" shall consist of site plans and stntcture elevations and sufficient
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detail to show site planning, architectural design and layout, materials, building
construction, landscape design, access and roads.
Upon receipt of each set of Development Plans (Phase I and Phase II)
representing a certain stage of construction, the City Manager shall review the same
and shall promptly (but in any event within Fifteen (15) business 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 Development
Plans submitted shall be limited to matters depicted in the Development flans for the
Leasehold 1Wrovements which do not conform substantially to the Conceptual Site
Plan, and/or this Lease, or are new elements not presented in the Conceptual Site flan,
or matters which are violations of this Luse or of applicable governmental ordinate
or laws. If no response from the City is delivered to Lessee within Fifteen (15)
Business Days after the submission of such Development Plans, or any resubmission
thereof as hereinafter provided, they shall be deemed approved; except that no
violations of applicable gover nentsl ordinances, codes, laws, or of this Lease shall be
deemed waived thereby. In the evert of a disapproval, Lessee shall, within Thirty
(30) Business Days after the date Lessee rives the notice of such disapproval,
resubmit such Development Plans 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 orighW
subrni�sion, until the same shall be approved by the City Manager. The City aid
Lessee shall in good faith attempt to resolve any disputes cow=Lng the Development
Plans. In the event the Parties fail to resolve such dispute, the dispute shall be
submitted to arbitc°ation p1trsuant to Article XViI.
(b) Construction Documents. Not later than Ninety (90) days after of
approval of Development Plans for a particular stage of constryi"f o n, of the Phase I or
Phase ii Lxasehald kwovernents, Lessee shaU submit to the City Manager Two (2)
sets of Construction Documents for the same stage. Upon 1weipt thereof, the City
Manager shall review the same and shall promptly (but in 84y event wifldn Fifteen
(I5) Business Days :after such receipt), give Lessee notir4 of its approval or
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disapproval, scaing firth 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
approved Development flans or previously approved Construction Documents for other
stages; or are new elements not presented in the approved Development flans, or are
violations of this Lease or of governmental ordinances, rxxles, plans or re-rulations. If
no response front the City is delivered to Lessee widdn Fifteen (15) Business Days
after the submission of such Construction Documents, or any resubmission thereof as
hereinafter provided, they shall be deemed approved; except that no violations of
applicable laws, ordinances, codes, regulatioms or of this Lease shaU be deemed waived
thereby. In the event of a disapproval, Lessee shall, within Thirty (30) Business Days
after the date Lessee received the. notice of such disapproval., resubmit the Construction
Documents for that stage to the City Manager, altered to meet the grounds of
disapproval. Any resubmission shall be subject to review and approval by the City
!danger, in accordance with the procedure huereinabove provided for in original
submssion, until the same shadl be approved by the City Manager. The City and
Lessee strap in good faith attempt to resolve any dispat , regarding the Construction
Documents. In the event the Parties fail to resolve such dispute, the dispute shall be
submitted to arbitration pursuant to Article XVJJ.
(c) Phase I and Phase H Development Plans and Construction
Documncr, s and all Work by Lessee with respect to the Subject Property and the
construction of the Leasehold Improvemew thereon ,shall be performed in accordance
with this Lease, the Mianai Charter and Code, the South Florida Building Code and
with the provisions of all other applicaMe federall, state and local laws and ortiinanu es.
(d) No approval by the City Manager of any Developments "Ply or
Construction Documents, pursuant to dais Section shall relieve Lessee of any obligation
it may have at law to ftle such Construction Documents vgid.Da any departmcm of the
City or any other governmental authority having Jurisdiction over the issues; or to
obtain any btailding or other permit or approval rewired by law. Ussee acknowledges
that any approval given by the City M:umger puas-tiant to this ;Section, sha11 nos
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constitute an opinion or agreement by the City that the plans are structurally sufficient
or in compliance with any laws, codes or other applicable regulations.
(e) After the Possession Date; and during the construction of the
Phase I and Phase: H Leasehold Improvements, the Ussee shall permit representatives
(such as building inspectors, fire, police, zoning and like) of the L=sor access to the
Subject Property at all reasonable times, as the Lessor deems no=sary for purposes
of this Laase Agtoernent including, but not IMW to, inspection of all work being
pe rforined in connection with the construction of the Phase I and Phase II Uaschold
Improvements. Any such access and inspections shall not interfere with the Work
being performed by or on behalf of the Lessee.
(f) 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
invitm, the Lessee covenants to indemnify, defend and hold harmless the Lessor and
its agents and employees from ,anal against all claims and demands whatsoever for loss
oz damage, including property damage, personal injury and wrongful death which
occurs at the Subject ,Woperty arising out of construction and development of the
Subject Property including the Phase I and Phase TI Leasehold Improvements,, which
the L*. = is responsible for.
(g) Within Thirty (30) days ,after all of the foul ddtions for the Phase
I and Phase H Leasehold Improvements have been installed, the Lessee shzilt 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 Ninety
(90) days after completion of all of the Phase I and Phase II Leasehold Improvements,
the Lessee shall furnish the Lessor with a final survey showing all improvements
constructed by the Lessee, for itself, to be within the pe;rinwter lines of the Subject
Property.
Section 4.7 TeMp2rary Use Of Watson Island Daring Construction Of
Leasehold Improvements. From line to time, during construction of the Phase I
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A
Leasehold Improvements, and upon written mquest by I.,s:ssee 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) (the "E.ass:ments") 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 mid Easements on Watson Island.
Lessor further. agrees that, subject to availability and upon written request by
Lessee, the City Manager and Lessee shall eater into a Temporary Construction
Easement, wh6mby Lessor shall grant Lessee the right and privilege of an Easernent(s)
on Watson Island, outside of the Subject Propeity, with the might of ingYress 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
Easenront(s) on Watson Island.
Lessor reserves to itself, its agents, employees, representatives and t antra
ctolI,
and to any other governahental agency or instrurnewlity turd any public utility
company the right and privilege 'of a Temporary Construction Easement wit%in, under
or upon the Subject Property for use as a staging area for construction related to the,
" Infrastructure Improvements, The Temporary Construction Easement to be provided by
iz-Qsw at no Cost.
Section 4.8 Sanitary Sewer System. In the event the Sanitary Sewer System:
is not completed. by January 1, 1998, wbject to Unavoidable Delays, and the Ussee is
ready to "Kook Up" the Leasehold Improvements and utilim the Sanitary Sewer
System for the purpose of operating the Leasehold Improvements, then Lessor, at its.
sole cost, shall provide an alterative sewer system which will allow Les.see to obtain a„
tenVorary Certificate of Occupawy , and allow Lessee to operate the PP,,moject as
anticipated under the Lease.
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ARTICLE Y
RLl�1
Section 5.1 Amount of Rent. The Lessees covenants that it shall pay
to the Lessor as Rent for the Subject Property the greater of the Minimum Annual Rent
or Percentage Rent:
(a) Minimum Annual Rent. Conumnaing on die Possession Date
and continuing throughout the Luse Term, Minimum Annual pent for each Lease
Year during the Lease Term, payable in Twelve (12) egtud monthly instasllmenis, upon,
the fitst slay of each and every month, adjusted in accordance with Section 5.3 of this
Article, aria. Section 5.4, if applicable, as follows-
(i) $200,000 for Lease Years 1 and 2
(ii) $300,000 for Lease Years 3 and 4
(iii) "P a),000 for each and every Lease Year thereafter.
(b) PeMnta a Rent. The Percentage Rent s!ll be an amount equal to the
following peicentage of Gross
Revenues-(i) 5 % of Gross Revenues rip to Twenty Million Dollars
($20,000,000), and
(ii) 6% of Gross' Revenues in excess of Twenty Million Dollars
($20,00 OW).
(c) banner of Pa ent of Percentage Rent or Minimum. Annul ,Rent.
Commencing with the first day of the Twenty-kventh (27*) month and on the first day
of Each month and every month thereafter during the Leo -,Se Term (and after the
terruination or expiration thereof for such additional periods a' may be rteressary to
comply with this Article), Lessee shall provide Lessor a statement of its r'ross'
Revenues signed by an officer of Lessee for the month commencing approxinutely
!sixty (60) days prior and Shall pay to .Lessor the greater of. (i) one/twelftb, of the
Minirntun Annual Foment ftn in enact pummnt to Section 5.1(a) hereeinabove, or (in)
Five (5) percent of the Gross Revenues for the month ct�mmencing approxiuntely Sixp
(60) days prior. At such time as the cumuladve monthly Cross Revenues in any given
sc Ycar exceed Twenty Million Dollars ($20,000, 000), Lessee shall pay the greater
29 96 671
of: i) one/twelfth of the Minimum Annual Rent then in effect pursuant to Section
5.1(a) hereinabove, or (ii) Six (6) percent of the Gross Revenues for the month
commencing approximately Sixty (60) days prior.
For example, on: the first day of the 27' month. Lessee shall pay to Lessor orte-
twelfth of the Minimum Annual Rent or Five (5) percent of Gross Revenues of the
Twenty -Fifth (25') month. On the first day of the Twenty -Eighth (2e) month, Le,9see
shall pay one -twelfth of the Minimum Annual Rent or Five (5) pewent. of Gross
Revenues for the Twenty -Sixth (2e) month. If in the '1 lnifty-Third (33n4) month Gross
Revenues for the Uase Year (months Twenty -Five (25) through 'n&ty-Three (33) in
this example) exQeed Twenty Million Dollars ($20,000,000), on the f nt day of the
Thirty -Fifth (35*) month, Lessee shall pay Lessor the greater of one -twelfth of the
Minisnum Annual Rent or Six (6) percent of Gross Revenues of the Thitty-llflni (33`d)
month.
Commencing with the fourth Lease Year and each and every Lase Year
tivrreWier during tt Lease Term (and after the termination or expiration thereof for
such additional periods as may be necessary to comply with this Article), widli n Sixty
(60) days after the end of every Lease Year, Lessee shall deliver to Ussor a statement
of the Grass Revenues for the preceding Lease Year signed by a Certified Public
A,ccoimtant along with the additional amount of Percentage Rent, if any9 which is due
from Lessee to Lessor for that preceding Lease Year.
In the event that the statement of Gross RevenuE} for the preceding Lase Year
indicates that the estimated Percentage Rent paid by the lessee for the preceding Lease
Year is greater than the actual Percentage Rent due the Lessor, then, Lessor and Lessee
shall reconcile the estimated Percentage Resit paid and the actual Percentage Rent due,
in the form of a rent credi, to Lessee for the next subsequent, monthly installments of
Rent due hereunder.
Section 5.2. Rent Pafnegt Deferral. The Lessee. may defer the payment of
the font Twenty-four (24) installments of Minimum Annual Rent due to the Lessor
until the Seventh. (7th) Lrsse Year (the "Deferred Rent"). Lessee shall pay the
Deferred Rvat in Thirty�Si x (36) equal inytalln►ents cornmeming on the anniversary of
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the Possession Date on the Seventh (Th) Lease Year and on the first day of each and
every month thereafter until paid in full. 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 and Percentage; Rent
payment due to the Lessor.
Section 5.3. Ren 1atyon. On the first day of the Fifteenth (15T') Lease
Year, and at Ten (10) year intervals thereafter, throughout the rest of the Initial "tom
the lblinimum Annual Rent shall be increased as set forth in this Section 5.3 to reflect
inemases in the Consumer Price Index. The index numbers referred to in Subparagraph
(a), 'below, will be taken from the Consumer mice 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 by a fraction, the numerator of which is the
index number for the last month of the last Lease Year prior to the adjustment, and the
denominator of which is the index number for the first month of the first Lease Year of
the Lease Term. If the product of this multiplication is Grater than the Minimum
Annual Rent, Lessee shall pay this greater amount yearly as, the Minimum Annual Rent
until the time of the next ren1W adjustment; as called for in This paragraph. Provided,
however, that in no event shall the percentage increase ever exceed Thirty Percent
(30%) during any Ten (10) year period. If the product of this mWtiplication is less
than the Minimum Annual Rem, then mi effect, there shall be no adjustment in the
Minimum Annual Rent, at that trine, and Lessee shall pay the, Minimum A.anual Rent
then. in efi ct, until the time of the next rental adjustment as called for in this
paragraph. In no event shall any rental adjustment called for it: this paragrldph result in
a Minimum Annual Rent which is less than the Minimum A.nnuai Rent in effect ,at the
time of the adjustment.
(b) If the Consumer Price Index is discontinued during the Lem Terns, the
i
remaining rental adjustments called for in this paragraph shall be made using the
fonnula 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
30 671
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are most nearly comparable. if the Bureau of Labor Statistics of the United Stadett
Department of Labor ceases to exist or ceases to publish statistics concerning the
pulthasing power of the consumer dollar during the Lease Term, the remaining rental
adjustments called 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. Adiustnlent to Minimum & nuts. ReO i� lrvent of
Extensions. In the event Lesser elects to extend the Initial 'Term, then prior to the
expiration of the .Initial 'Term and some time daring the 44" I.&= Year, the Parties
shall cause to be made appraisals of the Fair Market React of the Subject lPropetty,
according to the provisions set forth below,, for the purpose of adjusting the Minimum
Annual Rent while maintaining the Percentage Rent payrments as provided in Section
5.1(b) herein:
(a) Appraisals shall be made by 'Three (3) rMA, estate appraisers, each of
wbich (i) shall be a mmtiber of the American institute of Real Estate Appraisers, and
(U) skWl have not less than 'Ten (10) years experience in managing and appraising heal,
estate. I One appraiser shall be selected and appointed by the Lessor (the "Lessor's
Appraiser"), said shall be paid by Lessor, one shall be selected and appointed by the
Lessee (the Lessee's Appraiser") and shall be paid by the I.&ssee; and. the third shall be
Y
selected and appointed by the fins, Two (2) appraisers so appointed (the '"Third
Appraiser"). The cost of the Third Appraiser shall be evenly split between Lessee and
Lessor. In the event of a failure of the Lessor's Appra wr, and the Lessee's Appraiser
to agree on the 'Third Appraiser within Fifteen (1.5) days after their appointment, the
Third Appraiser shall be appointed by the President of the American Institute; of Real
Estate Appraisers (or its successor) on the application of either appraiser appointed by
the Lessor or the Lessee on Tun (10) days notice to the other appraiser so appointed.
(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 nee the
appointment, then the appraiser appointed by the party not in dtfault 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 agrm ou such third
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appraiser within Fifteen (15) days after their appoint.nent, the Third Appraiser shall be
appointed in the same manner provided in Subsection 5.4(a).
(c) .After appointment, the three appraisers, alter having been duly sworn to
perform their duties with impartiality, shall proceed promptly to prepare ar► appraisal of
the Fair Market Rent of the Subiect Property. The Fair Market Rent determined by the
appraisers shall be binding aW conclusive on the Lessor and the Lessee. The
appraisers shall have the right, by majority vote among them, to determine the
procedure to tm adopted in arriving at the Fair Market Rent, and may, in their
discretion, dispense,, with formal hearings, it being agmw that their task will be solely
that of appraisal.
(d) If prior to the expiration of the Initial Terns the Fair Market Rent has not
been determined for any reason, the Lessee shall continue to pay Rent as calculated.
pursuant to Section 5.1(c) utilizing the Minimum Annual Rent in effect for the year
prior to the expiration date of the Initial Term. When the Fair Market Resat hu been
determined, the Minimum Annual Rent will be adjusted as provided retroactively to the
expiration date of the. initial Term, and the Rent payments sh,,dl be recalculated in
accordance ce with Section 5.1(c). In the event of an increase in the Minimum Annual
Rent results in Rent due Lessor, Lessee shall pay to Lessor with the next insitallment of
Rent, the amount of Rent due, if any. In the event the amount of the adjusted Rent is
decreased as a result of the appraisal, and the Lessee has overpaid It nt during the
months which have elapsed in the Extension Term, the Lessor shall credit the amount
overpaid, which credit shall be allocated to reduce the amount of Rent due from Lessee
for subsequent months.
Section 5.5. sewrmri- Deposit. In addition to the Rent as described in this:
Article, ' and simultaneously with the execution of this Lease Aireetnent., the :Lessee
shall deposit with the Lessor One. Hundred Thousand acid no!103 Dollms
($100,000.W) as a security deposit (the Security deposit). The Security Deposit shall
be placed by the Ls.:�ssor in an interest bearing account with all interest harried thereon
being retained by Lessor until suchtime as the react adjustments are calculated in
accordance with the provisions of Subsection 5.3 and 5 A, if applicable.
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96— 671
a..
Commencing with the rent adjustment occurring on the Fifteenth (15'h)
anniversary of the Possession Date, 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 ant ount
of Minimum Annual Rent payable, then the Lessor shall retain from the total amount of
interest eamed on the Security Deposit such amount as nmy be necessary to increase
ft Security Deposit so that the Secuuity Deposit will be an amount equal to Fifty
Pement (50%) of the Minimum Annual Rent in effect alter the adjustment.
(ii) any interest earned in excess over the amount needed to so increase the
Set,�urity Deposit shaft be paid to the Lessee.
(iii) in the event the amount of interest available under (i) alcove is
insufficient to adjust the amount of the Security Deposit as provided. herein, Lessee
shall pay such amount to Lessor within Thirty (aft) days of Lessor's written notice
requesting such payment.
The Security Deposit shall he considered as security for the payment of all of
Lzssees obligations, covenants and agreements under this Leap. Within Thirty (30)
days after either this Lease expires or upon the earlier, termination of this Lease
Agreement (wbichever 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 Lhat the Lessor shall have used to migke good any default of Lessee. In
the event of any such default by the Lessee, Lessor shall have the right, but sbAll 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
necessat), to restore the Security Deposit to the amount In effect prior to the deduction. ;
Section 5.6. Place Of hyrnrnt. The Lessee sell pay all Rent to Lessor m
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 absera of such designation at the
offiee 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 Priine Interest Rate
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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. 'Phis. L %se Agreement shall be
deemed and construed to be a triple net lease, and the We sor shall receive all Rent, and
all other payments to be made by the Les free from any charges, assessments,
Impositions, expenses or deductions of any nature with the exception of those items set
forth within this Lease Agreemeat. The Lessor shall hot be called upon to make any
expenditure for the niaintena;nce, repair or preservation of the Leasehold
Improvements. With the exception „of any, setoff' allowable under the terms of this
Lem-, in uo event stall there be any deduction of any natutel from Rent due the Lessor
awl no defease, setoff shall be made against R,-nt iu .any proceeding for the collection
of Rent.
motion 5.8. Paym nt of Rent in Event of Loss or PMpe. In the event of
loss or damage to all or any part of the Leasehold improvements or imerruption of the
Lessee's business, the Rent shall not be abated but, the payment thereof shall be subject
to Unvoidable Delay as provided in Article 45.2 hercaf.
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 Lessor's accepture of such
Alternative Rent is not expressly prohibited by any local, ;state, or' federal law or
regulation, this Article may be modified in accordance with ;said Alternative Rent.
ARTICLE VI
ORTGAGES, AND 11 ORTGACRES
&xv.tion 6.1. Leasehold Mortgage:.
(a) Notwithstanding the provisions set forth in Article VX1 hereof regarding
may Tmmfers (as def ry d in Section 8.20), but subject to the preivisions of this Article
V1, (Provided that Lessor has I riot notified l.essm in waiting that an Event. of Lessee
Default has occurred). Lessee shall have the ,aright during the Lea -se Term,, to
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encumber the Lessee's Leasehold Estate by Mortgage, for the role purpose of securing
the financing of the Total Construction Costs of the Leasehold Improvements and/or
for the long-term financing or refinancing of any such Improvements.
Notwithstanding anything to the contrary in this Section or in this Lease, it is
expressly agreed by and between the Lessor and the Ussee, and (by acceptance of the
Leasehold Mortgage) any Lemehold Mortgagee that the Lessee's right to place a
Leasehold Mortgage against the Lessee's Leasehold, Estate is subject to the following:
1. At the time the Leasehold Mortgage is made, the Lmsee has not
been notified of any Event of Lessee's Default under this Lease.
2. No Leasehold Mortgagee or anyone claiming by, through or
under the Leasehold Mortgage, chall , by virtue of it, acquire any
greater rights in the Subject ,Property than the Lesser has under
this Lease.
3. The Leasehold Mortgage. shall be expressly L subject and
subordinate to all conditions and covenants of this Lease and to
the rights of the Lessor. '111C Leaschold Mortgagee of any
Leasehold Mortgage arAi the csv er of any indebtedness secured
by the Leasehold Mortgage, upon acquiring Lessee's Leasehold
Estate shall take the same subject to the covejutnts of this Lease.
In no event may the amount of such finawing or refinancing exceed the greater
of: (a) Eighty (80%) of the Fair Meet„ Value of the Leasehold Estate and all the
Improvements thereon, or (b) the Total Construction Costs and/or Replacement Cosh
("Replacement Costs" are 'def x d to be Total Construction Costs in the future for
replacing and/or replacing and improving the Leasehold Improvements including the
attractions located on'the Subject Property) . Lessee shall deliver to City promptly
after execution by Lessee a true and verifioi copy of any Ieasehold Mortgage, and/or
and any amendment, modification or extension thereof.,, together with the name and
address of the owner and holder thereof. Lessee may pot encumber Lessee's Leasehold
Estate as ses:urity for any indebtedness of Lessee with .respect to any other property
now or hereinafter. owned by Lessee; except dw Lessee may so encumber some as
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encumber the Lessee's Leasehold Estate by Mortgage, for the role purpose of securing
the financing of the Total Construction Costs of the Leasehold Improvements and/or
for the long-term financing or refinancing of any such Improvements.
Notwithstanding anything to the contrary in this Section or in this Lease, it is
expressly agreed by and between the Lessor and the Ussee, and (by acceptance of the
Leasehold Mortgage) any Lemehold Mortgagee that the Lessee's right to place a
Leasehold Mortgage against the Lessee's Leasehold, Estate is subject to the following:
1. At the time the Leasehold Mortgage is made, the Lmsee has not
been notified of any Event of Lessee's Default under this Lease.
2. No Leasehold Mortgagee or anyone claiming by, through or
under the Leasehold Mortgage, chall , by virtue of it, acquire any
greater rights in the Subject ,Property than the Lesser has under
this Lease.
3. The Leasehold Mortgage. shall be expressly L subject and
subordinate to all conditions and covenants of this Lease and to
the rights of the Lessor. '111C Leaschold Mortgagee of any
Leasehold Mortgage arAi the csv er of any indebtedness secured
by the Leasehold Mortgage, upon acquiring Lessee's Leasehold
Estate shall take the same subject to the covejutnts of this Lease.
In no event may the amount of such finawing or refinancing exceed the greater
of: (a) Eighty (80%) of the Fair Meet„ Value of the Leasehold Estate and all the
Improvements thereon, or (b) the Total Construction Costs and/or Replacement Cosh
("Replacement Costs" are 'def x d to be Total Construction Costs in the future for
replacing and/or replacing and improving the Leasehold Improvements including the
attractions located on'the Subject Property) . Lessee shall deliver to City promptly
after execution by Lessee a true and verifioi copy of any Ieasehold Mortgage, and/or
and any amendment, modification or extension thereof.,, together with the name and
address of the owner and holder thereof. Lessee may pot encumber Lessee's Leasehold
Estate as ses:urity for any indebtedness of Lessee with .respect to any other property
now or hereinafter. owned by Lessee; except dw Lessee may so encumber some as
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additional security for a loan or loans granted to Lessee in connection with the
! Southside Parking Lot.
(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 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 not accept any
surrender of this Lease (except upon the expiration of the Term), nor shall the City
consent to any material amendment or modification of this L.e.,,Lse, or waive any rights
or consents it nay be entitled to pursuant to ,the terms hereof, without the prior written
consent of Leasehold Mortgagee, which consent shall not be unreasonably delayed or
withheld.
(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 perfoirned or observed, the City shall have no right to terminate this Lease even
though an Event of Lessee's Default under this Lease shall have occurred and be
continuing, unless and until the City Manager shall have given Leasehold mortgagee
written notice of such Event of Lessee's Defatai.t, :and lzasehold Mortgagee shall have
failed to remedy such default or to acquire Lessee's Leasehold Estate created hereby or
to commence foreclosure or other appropriate prc�dings in the nature thereof, all as
set forth in, and within the time specified by, this Article VL
(iii) Subject to the provisions of subparagraph (iv) immediately
below, Leasehold Mortgagee shall have the right, but not the obligation, at any time
prior to termination of this Lease, 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
Unprovements, to continue to c*nstruct and complete the Leasehold hmprovemum, and
do any other act or thing required of Lessee hereunder, and to, Rio any act or thing
which may be necessary and proper to be Fiore in the p'erforrnawe avid observance of
the coverwits, conditions and agreements herwf to prevent the texmir Lion of this
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Lease. All payments so made and all things so done and performed by Leasehold
Mortgagee shall be as effective to prevent a termination of this Lease; as the same
would have been if made, done and performed by Lesw. instead of by Leasehold
Mortgagee.
(iv) Should any Event of Lessee's Default under this Lease occur,
Leasehold Mortgagee shall have Sixty (Fiat) days after recent of notice from the City
Manager setting forth the nature of such Event of Lcsw.'.s Default, to remedy same
i and, if the default is such that possession of the Subject Property may be reasonably
necessary to remoJy the default, Leasehold Mortgagee shall, within such ;sixty (601) day
period, commence and diligently prosecute a foreclosure action or such other
proceeding as may be necessary to enable Leasehold Mortgagee to obtain such
possession provided that (aa) Leasehold Mortgagee shall hav6 hilly cured any default
in the payment of any monetary obligations of Lessee under this ,Lease within such
i Six (60) day period and shall continue to a currently such mono obligations as
h' Y Pe pay Y '� g
and when the same are due, (bb) Leasehold Mortgage shall within Six (6) months of
ttte date that it takes possession of the Subject Property employ an Acceptable Operator
for the continued operation of the Project, under the terms and conditions of this Lease,
and (cc) Leasehold Mortgagee shall have acquired Ltsse e's L=sehold 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 occumnce of any such went of
Lessee's Default shall be subject to and condidoncd upon the City Manager having fait
given Leasehold Mortgagee written notice of . ' suc h went of Yfssee's Default and
Leasehold Mortgagee having failed to remedy such default or acquire Lessee's
Leasehold Estate created hereby or commence foreclosure, or other appropriate
in the nature thereof as set forth, in and within the time period ,specified by
proceedings
this subparagraph (iv).
(v) An Event of Lessee's Default under Mis Lease which in the
nature thereof cannot be retuedied by L,easehold Mortgagee shall be deemed to be
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remedied if: (aa) within Sixty (60) days after receiving written notice from the City
Manager setting forth the nature of such Event of Lessee's Default, Leasehold
Mortgagee shall have acquired Lessee's Xftsehold Estate or commenced foreclosure or
other appropriate proceedings in the nature themof; (bb) Leasehold Mortgagee ;shall
diligently and continuously prosecute any such proceedings to completion; (cc)
Uasehold Mortgagee, within such Sixty (60) clay period, shall have fully cured arty
default which do no inquire possession of the Subject Property, including a default in
the payment of any monetary obligations of Lessee cinder this Uase and shall thereafter
continue to faithfully perform all such obligations which does not require possession of
the Subject Property; and (rid) within six (6) zni.,mthh after Leasehold Mortgagee shall
have gained possession of the Subject property, Leasehold Mortgagee shall have
employed an Acceptable Operator and shall Continue to employ an Acceptable Operator
throughout the Lease Term.
(vi) If the Umhoid Mortgagee s prohibited, by any process, or
injunction issued by any court, 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 timesspecified in subparagraphs (iv) and (v)
above for commencing or prosecuting such foreclosure or other proceeding shall be
extended for the period of such prohibition; provided, that Leasehold Mortgagee shall
have fully cured any default including a default in the payment of any monetary
obligations of Lessee under this I,,ease, and shall continue to perform currently such
obligations as and when the same fall due, and provided that Leasehold Mortgagee
shall diligently attempt to remove achy such prohibition.
(vii) The City Manager shall ma ,l to Leasehold Mortgagee a duplicate
copy by certified mail of any and all notices, which the City tnay from time to time give
to or serve upon Lessee ptmuant to the provisions of this Lase; No notice by the City
Manager to Lessee heretuthder shall be deemed to have been given taxless and until a
copy thereof has been mailed to the Litsehold Mortgagee.
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(viii) Foreclosure of a Leasehold Mortgage or any sale thereunder,
whether by judicial proceedings or by virtue of any power of sable contained in the
Leasehold Mortgage, or any conveyance of the L4whold estate to Leasehold
Mortgagee 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 Lxasehold Mortgagee, or any other foreclosure
sale purchaser, as tenant hereunder; providedl, that Leasehold Mortgagee or any sack
foreclosure sale purchaser shall employ an Acceptable Operator within Six. (h) months
of the date of such foreclosure, sale or convey nee, and shall continue to employ an
Acceptable Operator throughout the Lease Term. Further, provided, d at 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 deteranine the relative priorities of such I..easehold Mortgages or the
rights of the different holders thereof and/or foreclosure sale purchasers.
(ix) Subject to the restrictions and limitations imposed on the Lessor
by the Charter of the City of Miami, Lessor and. Lessee shall cooperate in including in
this Lease by suitable amendment from time to time any provision which rstay be
requested by any proposed Leasehold Mortgagee, or may otherwise be reasonably
necessary, to implement the provisions of this Article NT, provided, however, that any
such amendment shall not in any way affect the Txase Term.
Section 6.2. No Waiver of Lessee's CLblig�ati ns or�City'sRig. 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 ft.- Project. or this Lr•.� . bathing in this Lzm Agreement shall be deemed an
agreement on the pant of the Lessor to subordinate its fee simple interest in the Subject
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Property to the lien of any leasehold Mortgage placed on the 1-cssce's Ixasehold
Estate.
ARTICLE V11
ADDITIONAL CONDITIONS OF 'LEASE AGREEMENT
AND RESTRICTIONS UPON USE OF SUBJECT PROPERTY
Section 7.1. Certain Conditions Of IAHing. 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 of
i
I the Subject Property, and. Subtenants, shall be subject., to the following covenants and
i
agreements which shall run with the Subject Property:
(a) Devote the Subject Property only to those uses specified in this Lease
Agreement and ancillary and related uses allowed by Applicable Law; and.
j (b) Not discriminate in violation Of any Applicable .Laws upon the basis of
race, color, religion, sec, or national origin in the sale, lease or rental, or in the use or,
o= anc of the Sub ect Property, or the Leasehold Improvements erected or to be
A � y 1`P'
erected on it or on any part of it.
Section 7.2. lvliggation of Impact on. Adjacent Residential Areas„ Lessee
agrees to use its good faith efforts to include in its Development Plans and Construction
Documents, and in the operation of the Subject Property the following measures:
(a) Design and evaluate all site lighting to avoid significant adverse off -site
impacts to, the north of the Subject Property; ate'
(b) Except for trees or other vegetation ;rid Two (2) icons and Two (2) non -
habitable towers (subject to the City Manager's aee'view), , the Leasehold Improvements
constructed at the Subject Property shall not exceed a height of Fifty -Five (55) feet
agave flood criteria; and
(c) At least 66-2{3 percent of the Subject Property is to be landscaped as
open gardens, water, trams, exhibit, posit; areRs, parks and walkways; and
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96- 6,71
(d) Mechanical equipment and major utility structures are to be screened
from views Broth upper level apartments in high rise structures located in r-t:sidential
areas proximate to the Subject Property; e
(e) Electronically amplified sound emarsting front spectator bowls and
amphitheaters and/or paging systems shall he diwaed so that, except as permined ift
accordance with subsection 0) herein, amplification of such sound emanating from
within these bowls, and amphitheaters shall not exceed Sixty -Five (65) dba between
the hours of 7.00 am -10:00 pra and Sixty (60) dba ut;tween the hours of 10:00 pm tO
7:00 am, as measured from the adjacent resider itll neighborhood boundary; and
(f) All spectator bowls and amphitheaters shall be do,. -signed aW oriented to
minimize sound`impact ort adjacent residential. neighborhoods; and .
(g) Retain the services of an acoustical consultant and a lighting cow ltant
to provide technical design input related. to the site and: facilhies constructions plans for
the 11-.eas'ehold improvements to assist ip rn'itigating the off site impact of amOlified
sound and light on existing adjacent residential neighborhoods; and
(h) Additional landscaping and earth berms may be added to the north
shoreline and east boundaries of. the 5ubject Property ,in the event it becon'es necessary
to help buffer the Leasehold Improvements from the residential areas proximate, to the
Subject Property; and
(i) Limit the: frequency of special events wherein the entire Subject Property,
is closed to the gener4l public during normal hours of. operation ("Special Events*) to
Four (4) per calendar month. The provisions of subsection (e) above do not apply to
Special ]Events. Lessee may obtain permission to conduct aciiditional. Special Events in
acxordance with the requirements of a Class I ;special Peimits,,, as provided for its the
Code of the City of Miami; and
Ej) Public parking on the Subject ProPeTty shall be scteened to miWhuize
impact of head lights from automobiles on adjacent residential property; and
(k) Project related commercial signage d rated towards offsite locations
shall not be oriented towards adjacent residientiRa neighborhoods to the north of the
Subject Property.
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Section 7.3. Restrictive Covenants. `Y"the 'restrictive covenants contained in
Section 7.4 below are intended and designed to bind the Lessee and the City and their
respective successors and assigns and bind upon and mv. with the Subject Property and
the Adjacent Property (as the case may be) throughout the Lease Terin. The Parties
recognize, however, that the development and operation of the Subject. }property and the
Leasehold Improvements in a manner which is in the hest interest of NA Parties may
from time to time require the confirmation, clarification, ampliiickion, or elaboration
of this Lease in order tb deal adequately with circumstances which may not now be'
foreseen or anticipated by the Parties. The Lessee and the City Manager reserve unto
themselves the right to enter into such interpretive, implementing or confirmatory
agvxrnents 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.
Section 7.4 Additional Conditions and Restrictions Ulion._Use of Subject
(a) Lessee hereby agrees t,°:sat the Subject Property shall not be used for the
following:
1., the rental, operation and/or sale of jest skis and/or any similar
motorized personal watercraft vessels; and/or
2. any unlam�,M or illegal business, nor shall ".adult video" and/or
'adult" bookstores 'Ere allowed to operate upon the Subject Property.
3. Lessee agTees that if casino gambling shall in the future became
legal in the City of Miat d, the Subjea t Property hereby demised shall not be used for
casino gambling, or games of chance: or reward, unless;
(i) Lessee obtains the prior consent of the Lessor, which
consent may be widtheld at the sole discretion of the City Commission; and
(ii) if the Lessor oonsents, the parties shall in good faith
negotiate an appropriate modification or amendn-tent to this Lem, permitting such use
attd providing for the payment by the Usism to the Lessor, as additional tent, of an
amount to be negotiated by the parties,
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(b) Permitted Uses, _ Uon Subject property. The uses permitted on the
Subject Property are: a destination viesitor attraction, botanical garden attraction
providing for flora and fauna, open spaces, pathways, special exhibit areas, related
tl*mc shows, interactive and educational environments, animal Habitats, related uses,
including, retail, recreation, parking and office (provided that such office uses shall
be limited to management offices and other office uses commonly found in attractions
and/car entertainment facilifes similar to the Project), banquet facilities and related
services; amphithuters, special event facilities; boat landing, 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 foam or beverages, inemhandise, and
services ancillary to attractions :and/or entertainment facilities similar to the Project.
(c) Conditions Pertaining to the Use of the Subiect Proverty and the
Adjacent property. The Parties acknowledge and agree that the Adjacent Property its at
the time'of execution of this Lease devoted to non-commercial use, and uiat,
consequently, the manner in which the Adjacent Property is or may be used from time
to trans will have a direct and material effect on the use and value of the Subject
Property and the I..easehold Improvemernts. In consideration of the foregoing and of
the rentals reserved by it under this Lease, the City, as the owner of the Adjacent
Property, for itself, i . successors and assigns, covenants and agrees with Lessee, its
successors and assigns that.
(i) 'The City will not permit any permanent use upon the Adjacent
Property whieb would detract from the use of the Subject Property, or which would
nuterially obstruct the northern view of Biscayne Bay from the Subject Aropexy; aW
(ii) The City will not, withocit fora obtaining the written consent of
the Lessee, which consent shall not beumeasonably delayed or withheld, (1) construct
any fence or barrier between the ' Adjacent Property VA the Subject Property, (2) make
or permit substantial pPrma emt alteration in the ,Adjacent Property or permit any
pen nanent stricture on the Adjacent Property which will sWostantiMly adversely affect
the access to and ;from the Subject Property; ark:
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(iis) The City will coordinate its ongoing planning and implementation
efforts relating to the construction of improvements to and the use upon the Adjacent
Property with Wsee so that the making of improvements to and the use of the
Adjacent Property 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 ghat the restrictive
covenants contained in this Section 7.4 shall be binding upon the City and the Lessee,
their successors and assigns, as covenants running with the land and successors in
interest, as the case may, be, and shall be for the ivttefi t and in favor of, and
enforceable by, either the City and/or Lessee; provided however, that .such covenants
shall be bindiikq on Lessee, and the City; and their respective successors in interest and
assigns, only for such period as cacti shall have (i) fec: title to the Subject Property and
the Adjacent Property or any part of either, as to the City, and (ii) the Lessee's
I.,,easehold Estate herein demised to Lessee, as to Lessee.
Section 7.5., S a e. Lessee, at its sole cost and expense, shall be permitted
to install signage on Watson Island, subject to approval of the City Manager as to
design, location, size; and materials, as follows.
(i) Direcdoral and/or inforniational signs pertaining to the Project
throughout Matson Island in accordance with an adopted, uniform directional signage
program established for the island; atnd
(ii) One icon offsite, on the south side of Watson Island; and
(iii) Directional and/o* informational sign(s) in the State right-of-way,
subject to the approval of the State of Florida; and
The exact; farm of ail signage stall 'be subject to and in'compliance with the
requirements for a Major Use Special Permit.
96- 6171.
AkTICLE VIII
RESTRICTIONS ON TRANSFERS OF
LESSEE'S LEASEHOLD ESTATE
Section 8.1. Representations as to Develo ent of the nroj ct. The Lessee
r+eptesents and agrees for itself, and its pennitted successors and assigns, that the
Subject Property will be used, solely for the uses generally described in the Statement
of Background and Purpose, and this Lease. The Parties acknowledge that the
corporate. name of the Lessee will be changed subsequent to the Y.&ase Date to "Parrot
Jungle and. Garden of Watson Island, Inc." The Lessee further recognizes that:
(a) the operational experience of the Lessee was given special consideration
by the Lessor in the selection process wb,ich resulted in the award of this Lease; and
(b) any direct or ,indirect transfer of interest of Lessee's Leasehold Estate
resulting in a change in the Person in Control of the Lessee, is for practical purposes a
Transfer (as defined in Section. 8.2 below) of the Lessee's Leasehold Estate; and
(6) the qualifications and identity of the Lessee and its present stockholders
am of particular concern to th community and the Lessor; and
�d) it is 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 sale, assignment or conveyance (other than by a
Leasehold Mortgage) of this Leap or of the Lessee's Leasehold Estate; or
(ii) any transfer of more than. Fifty (50%) percent of the stock of
Lessee or of any majority Owner whereby Can"I of the. CoMoration is changed other
than .an Owner whose shares are publicly traded; or
(W) any merger, consolidation or sale or lease of all or substantially
all of the assets of Lessee or of any Owty r, other Haan an owner whose; shares are
publicly trawled; or
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f
(iv) any Sublease of the entire Subject Property to a single Subtenant
or Subtenants who are related in their ownership.
(b) "Owner" means:
(i) any person, firm, corporation or other entity which owns,
directly or indirectly, legally or beneficially, niore 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 do Exchange Commission (or its su(xxssor) 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 E0 subparagraph:, (a.)
S 5 T f be
through (e) hereof, and sublets to the provision of Secr.�on . , nuJ raps er may
made, suffered or created by Lessee or any Owner. The following Transfers shall be
permitted hereunder:
(a) Any Transfer by Leasehold Mortgagee to an investor.
(b) Any Transfer directly resul,ti��g . from the foreclosure of a Leasehold
Mortgage or any Transfer made by the, polchaser at foreclosure of a Leasehold.
Mortgage, provided that such purchaser within Six (6) inonths after taking possession
of the Subject Propeay, shall have employed and continue to employ throughout the
Lease Term an Acceptable Operator.,
(c) From and after the date that the Project has been in operation for Five
(5) years after the opening date, any Transfer to an assignee or purchaser! approved by
the City Commission, which approval shall. not be unceasanably withheld or delayed,
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provided that in connection with such Transfer, the Project shall be directly managed
by an Acceptable Operator.
(d) Any Transfer resulting from the death or dissolution of an Owner
provided that same does not result in the dissolution or termination of lessee.
(e) Any Transfer by a stockholder of Lessee made for Estate I 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 regisuation 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 so long as at all times during the Leasc Term, then Lessee or an Acceptable
Operator operates the Project,
It is,the intent of the parties that at all times during' the Lease Term, that (i) the
use and occupancy of the Subject Property shall be subject to this Lean:, (H) Lesson
shall be in privity of contract and of estate .with only the Lessee, and (iii) the Subject.
Property and Lessee's Leasehold Estate shall be under the Control of a single Person.
Therefore, notwithstanding anything to the contrary in this Article, the Lessee is
expressly prohibited f om L alssignivag or selling its right, title and interest under thhis
Lease with respect to a portion of tho Subject Property wirthout the prior written
consent of the City Commission which consent may be withheld for any or no reason
whatsoever.
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 teams of this Article
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 City
Commission, Lessee shall give or caul., m be given to the. Lessor written notice
(inclskiing all inforimation nm; ,nary for the City Manager to make an evaluation ,and
recommendation to the City Cotrcnti€sioial as to the proposed Acceptable Operator
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according to the requirements of this Lease Agreement) of any Transfer of which
Lessee or its officers shall have knowledge, not less 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 writing if it shall consent to saute. If the Lessor
shall not consent to a Transfer, the Lessor shall state the Masons for such disapproval
in his notice to lessee withholding its consent. If the City Commission is not required
to consent to a Transfer pursuant to the terms hereof, Lessee shall notify the Lessor in
writing of saute within Thirty (30) days after die date of TTransfer.
Lessee shall from time to time throughout the Lease "Term of this Lease, as the
Lessor shall reasonably request, fiurish the; Lessor 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
Person has a beneficial interest in such stock, their full names and addresses and the
extent of such interest as determined or h.-Wicawl by the records of Lessee; or copies of
Lessee's —annual corporate returns. Notivithstan d'Mg 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 Criteria .for Consent for Assignments and/or Purchase of
Subiect Property. It is expressly understood and agreed that the City Commission may
reasonabiy,withhold its consent to any Transfer using the following criteria:
W The net assets of the Transferee immediately prior to the Transfer
shall not be less than the greater of. the net asset✓ of Lessee immediately prior to the
Transfer, or the net assets of Lessee on the Lease Date;
(ii) Such Transfer shall not adversely affect the quality and type of
business operation which Lessee has conducted theretofore;
(W) Such Transferee shall possess qualifications foi, the 1&ssee's
business substantially equivalent to those of Lessee aW shall have demonstrated
recognkted experience in stt =sfully 6perafng such a business, including, without
limitation, experience in successfully operating u similar quality business;
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(iv) Such Transferee 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 all documents pertaining to the Transfer;
(v) Lessee shall pay to Lessor a Transfer fee of One Thousand
Dollars ($1,000.00) prior to the effective date of the Transfer in order to reimburse
Lessor for all of its internal costs and expenses incurred with respect to the Transfer;
including, without limitation, reasonable costs, incurred in connection with the review
of financial materials, meetings with. representatives of Transferee or the Acceptable
Operator and preparation, review, approval and execution of the required assignment
documents, and, in addition, Lessee shall reimburse Lessor for any reasonable out-of-
pocket costs and expenses incurred with respect to such Transfer, including reasonable
attorney's fees.
Section 8.6 Effectuation of Certain. Permitted Transfers. No Transfer of the
nature described in subsection (c) of Section 8.3 sball be effective unless and until:
(a) all Rents, Impositions, insurance, permitting and other charges due and
owing as of the date of Transfer and 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
coveriants' and agreements to be kept and performed by the Lessee shall be substantially
complied with at the date of the Transfer; and
(b) the entity to which such 'Transfer is made, by instrument in writing
reasonably satisfactory to the City, Attorney, and in form recordable among the land
records, shall, for itself and its successors and a.-ssigns, 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 Leasehold Mortgagee shah not be required to assume any personal
liability under this Lease with respect to any mptter :wising prior or subsequent to the
period of such Transferee's actual ownership of the Leasehold Estate, (it being
understood, nevertheless, that the absence of any such inability for such matters shall
not hupair, impede or prejudice any other rr ght or remedy available to the City for
default by Lessee),
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Section 8.7 Transfers of the C:ity'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 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. The entity to which the City assigns, conveys, or mortgages the
Subject Property, by instrument in writing reasonably satisfactory to the Lessee, which
approval shall not 'be unreasonably withheld or delayed, and in a form recordable
among the land records, shall, for itself and its successors and assigns, and especially
for the benefit of the Lessee, expressly anume all of the obligations of Lessor under
this Lease and agree to be subject to all conditions and restrictions to which Lessor is
subject. Any mortgagee shall sign an attornment and non -disturbance agreement
reasonably satisfactory to the Lessee.
Section 8.8 Acceptance of Rent from Transferee. The acceptance by Lessor
of the payment of Rent following, ally °I'.tansfer prohibited by this Article shall not be
deemed to be a consent by Lessor to any such Transfer, nor shall the same be deemed
to be a waiver of any right or remedy of Lessor hereunder.
Section 8.9 Participation on Sale of Lessee's Business and/or Transfer.
(a) in the event that Lessee shall sell its business located on the Subject
Property, or realizes a Transfer, as specified in Subsection 8.3(c), or sells Lessee's
stock (subject to the provisions of 8.9(b) below with respect to publicly traded stock),
upon receipt by Lessee of the proceeds relatOl to such Transfer or sale, Lessee; shall
Pay Lessor an amount equal to Three (3 %) percent of the total purchase price.
(b) In the event Lessee "goes public" wW Lessee's interest in the Leasehold
Estate is owned by the public corporation, then Lessee shall be responsible to pay an
amount equal to Three {3 `.l?) percent of total consideration attributable to the Wtial
public offering.
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ARTICLE IX
EASEMENTS
Section 9.1. 'easements.
(a) Basements Deserved by4 s, . The. Lessee agrees to grant to Lessor
and/or any public utility company the following permanent and perpetual easements, in,
to, over, under and across the Subject Property, including reasonable rights of ingress
and egress to and from said areas:
(i) a non-exclusive right and easement for the installation, operation,
maintenance, repair, replacement, relocation, and removal of utility facilities such as
water lines, fire lines, gas mains, electrical Mower tines, telephone lines, storm and
sanitary sewers and other utility lines and fneiiities, fti the location(s) to be 'shown on
the approved Construction Documents or in such other locations as may be requested
by the Lessor and approved by lzssee from time to time during the Lease Term.
Within a reasonable time after the I, mse Date, Lessor shall provide Lessee the
necessary survey and other information so as to fix the location(s) of any easements
required for the operefion of the Subject Property and/or. Watson Island.
(b) Easements Grimted to Lessee. The City grants unto Lessee, its
successors and assigns the following:
0) the non-exclusive ',right and, easement (the "Lessee Utility
Easement") to install, maintain, repair and re place utility facilities such as water, gas,
electric, telephone lines, and storm and sanitary sewers underground within portions of
Watson Island which is not a dedicated street, in such location(s) therefore shown on
the approved Construction Documents'Or in such other locations as may be requested
by the I,zssee and approved by the Cite Manager from One to tinne during the Lem
Term;
(ii) the :non-exclusive right. for unobstructed =,tss by service and
enaergency vehicles to and frcotn the , tklaject Property to MacAraTur Causeway going
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96— 671
we,5t under the MacArthur Causeway to MacAra ur Causeway going East 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, suhject to fhe City's right to restrict portions of 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
employees, agents, customers and invitees to all of the public areas of Watson Island as
may now exist or as may be available to the: public in the future, including, but riot
limited to, the baywalks, sidewalks and other open spaces;
(iv) the reasonable right and easement to eater onto those portions of
the Watson Island fer the purpose of perforrMing maintenance and repairs to the
Leasehold Improvements', such maintenance and repairs to' be perfor ned in a manner
which will minimize disruption to others; and
(v) the noii-exclusive ' rights and easements for installation,
maintenance, repair and replacement of ul.ility facilities and for pedestrian and
vehicular access to and from the Adjacent Property to the Subject Property at such
locations as may be approved bbr the City Manager from time: to time.
It is the intent of the parties to this rase Agreement that the Leasehold
Improvements be confined to the limits of the Sut*ct Property.
(c) Ili ration of lE:asernents. Unles a shorter ternn is provided, each of the
rights and easements granted or reserved, in this Article shall be,for the Lease 'Term.
Section 9.2 Confirmatory Instruments. Each pare► covenants ands agrees that
from time to time at the request of the other party, h ,shall execute and deliver such
additional documents or instruments confinzl&i ; the rights and easements granted and
reserved in this Article, or more precisely, f x.ivg their location as such requesting party
shall deem to be necessary or desirables. The City Momger is hereby authorized and
C2
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i
empowered on behalf of the Lessor to execute and deliver, from time to time, any such
confirmatory documents or instruments.
ARTICLE X
PAYMENT ENT OF IMPOSITIONS
Section 10.1. moment of lm, ,sitip2j, The Lessee agrees to pay or cause to be
paid, all Impositions when due, and before any fine, penalty or interest is added for,
nonpayment.
If by law any Imposition is payable or may, in the me of taxes, at the option of
the taxpayer be paid in installments (whether or not interest shall accrue on the unpaid
balance of the Imposition), the Lessee may pay the same (and any accrued interest on
the unpaid balance of the Imiposition), in installments as tholy respectively become due
and before any fine, penalty, interest or cost is added for the nonpayment of any
imstallment and interest. Any Imposition relating to a fiscal period of the taxing
authority, a part of which period is included within the Lease Terns and a part of which
is included in a period of time after Lease Tenn shall be adjusted as between the Ussor
and. the ]Lessee as of the termination of the Lease Terns, so that the 'Lessee shall pay
that proportion, of the Imposition attributable to that Fart of the fiscal period included'in
the germ of this Lease,, and the Lessor shall pay the remainder, if applicable,'
Section 10.2 Payment of Ad Valorem heal PropertyTaxes. Lessee agrees that
in the event the Subject Property, Lessee's Leasehold Estate or the Leasehold
Improvements, becomes subject to ad valorem taxation, Lersee, at the option of Lie -
City Manager, shall enroll in the Dade County Ad Valorem Tax: Payment flan (the
"Tax Plan"). Then after demand by the City Manager to enroll in the Tax flan, failure
to enroll in said plan or to mane payments in accordance with the provisions of the Tax
Plan shall constitute an Event of Lessee's Default under this Luse. In the event the
Tax Plan is discontinued, the City Manager and Lessee shall develop a payment method
to insure the monthly or quarterly payanent of such taxes in advance of the due date.
Section 10.3. Lessee's Ri , lit to Contest Impositions. Anything,, herein to the
contrary notwithstanding., Lessee shall have and retain the right to contest by legal
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E
proceedings, or in such other manner as it may deem suitable, any Imposition,
(excluding ad valorem tax on the Subject Property and the Leasehold Improvements),
or any valuation in connection therewith. wilthout, die consent of Lessor, even if the
same ultimately results in the payment of any interest, costs or penalties.
hlowithstanding the above, if at any time during the last Ten (10) years of the Tease
Tem Lessee shall contest. an Imposition (excluding ad valorem tax on the Subject
.Property and ft Leasehold Improvements), Lessee may defer payment of a contested
Item upon the condition that, before instituting any such proceedings, Lessee shall
furnish to Lessor, or to any mortgagee Lessor may designate, a surety company bond,
a cash deposit, or other security satisfactory to Lessor and such mortgagee, sufficient
to cover the amount of the contented items or items, securing payment of such Contested
items.
The legal proceedings herein referred to shall include appropriate proceedings
to review tax assessments and appeals from order therein and appeals from any
judgments, decrees or orders. Any such contest shall delay the time periods set forth
in Section 10.1 above.
In the event Lessee contests the imposition of ad valorem real property tax to
the Subject Property and/or the Leasehold Improvements during the first Three (3)
Lease Years, Lessee shall immediately notify Lessor of its intention to appeal ;said tax
and shall deposit in escrow m a bank muttialiy acceptable to the Parties, only tl,e
amount shown on the Combined Tax Notice from Metropolitan Dade County as due for
municipal (Miami) services.
Commencing on Lease Year Four and during the Lease Terre, in the event
Lessee appeals the ad valorem real property tax on the Subject Property and/or the
Leasehold Improvements or the assessment value thereof, Lessee shall immediately
notify ,Lessor of its intention to appeal said tax and shall pay, under protest to
�. Metropolitan Dade County, the greawr of: (1), Eighty Percent (80 ) of the total amount
i
shown as owed in the C:ombived Tax Notice: front Metropolitan Lade County; or (ii)
the amount of takes Lessee believes in its good faith opinion is rightfully due. In the
°event: Lesser is contesting taxability of the Subjmt Property and/or the Leasehold
i
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96 - 671
Improvements, notwithstanding any provision in general lays which authorizes the
taxpayer to withhold payment of the tax pending resolution of the appeal, the LA-.ssee
shall pay to Dade County the greater of the amounts as set forth above.
zSfxtion 10,4 P. Merit. of Ad Valorem T :s to the I of Karni. Should
the Lessee be successfxal in obtalni g a tags Miaption for either the Subject Property
and/or. the Leasehold Improvements, the Lessee shall, in accordance wsith &-ction
29 A.(e)(2) of the Charter of the City of Miami, Florida, as amended, pay an amount
equal to what the City's ' portion of the advalorem real property taxes would be if the
Subject Property and/or the Lemehold Inmproveinents were privately owned and used
for a profit -making purpose (the "City Payment in Lieu of Tax"). Lessee shall pay the.
City Payment in ,Lieu of Tax to Lessor in accordance with the deadUms established for
payment of Dade County ad vaioiremu realproperty taxes. Any disputes concerning the
amount of the City Payment 'in Lieu of Tax, or the assessed 'value of the Subject
Property and/or the Leasehold improvements shall be subject to Arbitration in
accordance with Article XVR
Section 10.5 Proof of i'aMgnt. Within Thirty (30) days after, the date
whenever any Imposition is due and payable by or on behalf of the Lessee, the Lessee
shall furnish to Lessor official receipts of the appropriate taxing authority, photocopies
or other proof satisfactory to the Lessor, evidencing the payment.
ARTICLE X1
INSURANCE
Section 11.1. Lrrsuxance on the Leasehold Improvements. llegi,ining on the
Possession Date and at all tunes dtuing the Lease Term, Lessee shill, 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) "All Risk" property insurance coverage against loss or damage by
fire, windstorm, flood with such endorsement for extended coverage, vandalism.,
malicious mischief, sprinkler leakage and special coverage, including flammable
materials used for cooking, insuring One Hundred. Percent (100%) of the replacement
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96- 671
cost of the Leasehold Improvements (exclusive of foundation and excavation costs),
Lessee's alterations, improvements, fixtures, equipment, furniture, trade fixtures and floor
coverings, including the ex.penve of the removal of debris as a result of damage by an
insured peril (collectively "Insured property"') on the Subject Property, with a maximum
deductible of One percent (1%) of the insured value., 'The Lessor shall be named as Loss
Payee.
Unless expressly waived in writing by the City Manager„ the replacement cost
of the insured Property shall be determined every, Three (3) years during the Lease
Term. by an insurance appraiser, selected and paid for by the Lessee, provided that the
Ussee shall obtain the xssor's approval (which, approval shalt not be unreasonably
withheld) of the appraiser before conunencernent of the .appraisal. The appraiser
selected by the Lessee shall submit a written report. of the appraised replacement cost to
the Lessor and the Lessee. If the Lessor or the Lessee is not, satisfied with this report,
the dissatisfied party shall serve upon the other a notice of dissatisfaction within Thirty
(30) days after receipt of the report and Parties shall in good faith attempt to residue
any disputes concerning the appraised replacement cost. During this period of the
dispute, the Lessee shall continue to maintain insurance in an amount equal to the
greater of: the amount determined by the „appraiser or that maintained before: , the
dispute arose.
Innrmediately upon receipt of the appraiser's report, the Lessee shall procure and
deliver to the Lessor written confirmation from the insurers ► evidencing the increase in
insurance which may be required to comply with n'ie provisions above.
During the construction of the Leasehold Improvements, Lessee shall carry or
cause to be carried Workers Compensation .IrLsur�cance and any, such ether insurance as
may be required by law to' be canied by Lessor and Lessee or either of them in
connection with the construction.
(b) Business Interruption iasurarnce in the limits of which insurance, if
available, shall not be Iwss than the Minimum Annual Rent and the debt service
payment for the Leasehold Improvements.
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P
(c) Boiler and machinery insurance covering repair and replacement of all
boilers and machinery serving or benefiting the leasehold Improvements, the policies
of insumnee to be endorsed so .as to provide use and occupancy coverage for 'the
Leasehold! Improvements in such atuount as may be reasonably acceptable to Lessor.
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 ail), Leasehold Mortgagee, which
clauses shalt be subject to and not inconsistent with the terms of this Lease
Agreement), maintain the following insurance:
(a) Commercial general Liability insurance on a comprehensive general
liability coverage form, or its equivalent, including contractual liability, products and
completed operations, personal injury, liquor legal Liability, garage keepers liability,
and premises and operations coverages against all clauns, demands or actiums, bodily
injury, personal injury, death or property damage occurring in the Subject Property,
the limits of which shall not be less than Two Million Dollars ($2,000,00) Per
occurrence combired single limit for bodily injury and property damage. No
deductible will be carried under this coverage without the prior written consent of the
City Manager, which cone: nt shall not be unreasonably withheld. Lesser: shall further
maintain an excess umbrella policy which limits shall not be less than a combined
single limit of Five Million .Dollars ($5,000,000). Said insured amounts as provided
above shall be adjusted at the beginning of the fou-ith I -ease Year and every three years
thereafter, by any increase andlor decrease (which decrease shall not result in an amount
less than the amounts initially required as set forth above) in the Consumer Price Index
from the Possessiote Date to the anniversary date in which the adjustment is to be
made. The Lessor shall be named as Additional Insurr.4 on the policy or policies of
insurance.
(b) During periods of excavation anti/or construction or during periods of
alteivion , or during periods of restoration in the event of damage or destruction or
condemnation or during periods of rasing or demolition at, in or on the Subject
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Property, the Leasehold Improvements or any part of it, All Risk Builders Risk
insurance in an amount to be determined at such time.
(c) Automobile liability insurance covering all owned, non -owned and hived
vehicles used in conjunction with operations covered by this agreement. The policy or
policies of insurance shall contain 'such. limits as may be reasonably requested by the
Lessor from t.irne to time but not less than Five Hundred Thousand ($500,000) for
bodily bliury and property damage. Said insured amount as provided above shall be
increased at the beginning of the fourth Lease Year and every three years thereafter by
any increase in the Consumer Price Index from the Possession Date to the anniversary
date in which the adjustracnt is to be made.
(d) In the event that any other type of legislation may be enacted imposing
special liability upon the Lessor or the Lessee by virtue of its use for any special
purposes, before the Lessee shall so use d)e Subject Property and/or 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 and
naming the Ussor as Additional Insured.
(e) Workers Compensation Insurance in the amounts and types required by
State law.
(f) The Lessor reserves the right to reasonably amend the herein insurance
requirements by the issuance of a notice in writing to Lessee.
&ction.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 insurancx
required to "be furnished shah 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 existeire of all of thew. policies of
insurance shall be delivered to the Ussor. All policies of insurance required to be
provided and obtained shall provide that thoy shall not be .amended or canceled on less
than 'Thirty (30) days prior written notice to the Lessor and all insured and
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beneficiaries of the policies and shall contain waiver of subrogation rights
endorsements, as required below. The Lessor shall have no obligation to pay
premiums or make contributions to the insuring company or any other Person or satisfy
any deductible.
On or before the Possession .Bats: and then not less €.Iran 'Thirty (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 and insurance company certificates evidencing all
policies of insurance and renewals required to be furnished. Receipt of any
documentation of insurancz by the Lessor or by any of its representatives which
indicates less coverage than r.-Auired does not constitute a waiver of the Lessee's
obligation to fulfill the insurance regtiirements herein.
Section 11.4. Adiustment of Liss. Subject to the requirements of any
Leasehold Mortgagee, all insurance pr(w;eeds recovered on account of any damage or
destruction by any casualty shall be twideavailable for the payment of the c st of the
repairs and reAtoration. All of the insurance proceeds plus the amount of any deductible
applicable to said damage or destruction shall be deposited by the insurance company
or by the Lessee (in the cane of, the d.Wuctible) 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 ,aW restoration work that the disbursements then requested, plus
all previous disbursements made from such insurance proceeds, plug 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 Eland is sufficient to pay for Litre
reasonably estirnated cost of completing the required work of repair and restoration.
The escrow holder may be the tender 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 r-storation work, then lessee shall pay the excess cost; and if
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the amount of the insurance pro =ds is greater t13an 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 B Apr ved-Premium Receipts. All policies of
insurance of the character described in Sections 11.1 and 11.2 shall be written by
companies of recognized responsibility teasonably ,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 S€�br gation. Ussee waives all rights to recover
against the Lessor for any damage arising ftom any cause covered by any insurance
required to be carried by Lessee, or any insurance actually carried by Lessee. The
Lessee shall cause Wo, insurer(s) to issue appropriate waiver of st brogation ;rights
endorsements to all policies of insurance carried in connection with the Subject
Property. Lessee will cause all Subtenants to execute and deliver to Lessor a "waiver of
claims similar to the waiver in this paragraph and to obtain such waiver of subrogation
rights endorsements.
o
AKI71CLE XII
RECORDS AND AUDITING
Section 12.1 Records of Sales. During the Lease Term, Lessee shall maintain
and keep, or cause to be maintained and kept at the Subject ; Property, a full, complete
and accurate record and account of all Cross Revenues arising or accruing by virtue of
the operations conducted at or from. the Subject Property, for each day of the Lease
Term. All records and arr..ounts and al;,; other supporthig records, shall be available
fo;; inspectiqn and audit by the Lessor and its duly authorized agents or representatives
during the hours, of 8:00 A1dI to 5:00 PM, Monday through Friday, and shall be in
accordance with generally accepted accounting procedures. Said inslx°ction and audit.
of such records and accounts shall'not occur more than 'Four (4) times in any given
Lease Year. Lessee must provide point of sale, machines or uch oilier cash registers or
accountir4 control equipment deemed tuasonably necessary for proper control of cash,
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and payments whether such transaction is a cash or credit transaction. Lessee shall
keep and preserve, or cause to be kept and preserved, said records for not less than
Sixty (60) months after the payment of the Percentage Rent due under the terms hereof.
For the same period of time, Lessee shall also retain copies of all sales and to : returns
covering its operations at t'ie Subject Property, and any other goverriniental tax or
other returns which show Lessee's sales themin, and shall, upon demand, deliver
photographic copies or computer disks thereof to the Lessor, The Lessee will
cooperate with the Lessor's intemal auditors (or such other auditors designated by
Ussor) in order to facilitate the Lessor's examination of records and accounts.
Section 12.2. audit. UponLessor's request which shall occur no more than
cane in any given Lease Year, Lessee shall deliver or cause to be delivered within
Nmilety (90) days of such request, to Lessor's, Office of jUset Management, located at
444 SW 2 Avenue, Suite 325, Miami, FL 33130, a financial statement for the Lease
Years so ,specified in Lessor's request, prepavad and cei tified by an auditor employed
at Lessee's stele cost and expense. Said Auditor shall certify that he made a complete
examination of the books, staff sales tax returns, and federal income tax returns of
Lessee and that such state€raent is prepared in accordance with generally accepted
accounting_ principles and practices, and represents the Gross Revenues of the 'lessee
and its Subtenants for the period indicated therein. Within Thirty (30) days of the
delivery of each fauncial statement, Ussee shall pay to Lessor any unpaid balance of
the Rent or underpayment of Percentage rent, if any, and I.,essor shall credit any
overpayments, if any, towards the next payanent of Resit due. In the event the Lessee
fails to prepare or deliver the rrsduired Audited Financial Statement to the Lessor within
the time set forth above, the Lessor, upon Fifteen (15) days 'written notice to Lessee
may elect to exercise either or t► )th of the following remedies:
a) To treat, as a default of this Lease, any such omission continuing after
Thi-y (30) days written. notice to Lessee; and/or
b) To camw an audit arWor accounting, pursuant to the provisions of this
L eay. to be -made at the sole cost and expense of Lessee. Lessee shall pay the hall
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reasonable cost of such audit within Thirty (30) days of receipt. of an invoice indicating
the cost of such audit.
Notwithstanding the above, at its option, Lessor may cause, at its sole cost and
expense, at any time within Sixty (60) months of receipt of any Percentage Rent
statement furnishedi by Leassee, a complete audit_ to be made of Lessee and its
Subtenants' accounting girds in connection with the sales on, from or related to the
Subject Property for the periodcovered by any such statement furnished by Lessee. If
such audit shall disclose an underpayment of Bent, Lessee shall pay Lessor any unpaid
balance within Thirty (30) days of receipt of notice froini Lessor that such balance is
due. If such audit shall disclose an overpayment, Lessor shall credit such overpayment
towards the next payment of Rent due.
Lessee shall allow the Lessor or the auditors of the Lessor to inspect all or any
part of the compilation procedures _for the aforesaid monthly reports. Said inspection
shall be reasonable and is at diz sole discretion of the Lessor.
The acceptance by Lessor of payments of Percentage Rent shall be without
prejudice to Lessor's right to conduct an examination of Lessee's books and records of
its Gross Revenues and inventories of merchandise on the Lease Property in order to
verify the amount of annual Gross Revenues made by Lessee in and from the Subject
Property. Lessor shall not it -examine an accounting period which has previously been
audited, unless it has reasonable cause, and may not go back further than Sixty (60)
months from, tine receipt of Percentage Rent,.
ART.IC L E MH
USE CAP THE SUBJECT PROPF.WrY AND LEMEHOLD I1V1rPROVEM[ENTS
-rVTO STATE
Section 13 L ' Limited Re_,resentation5by Ixssor.
(a) Lessor des the folio -vying representations, covenants and warranties
which shallsurvive the executiop of this L,easm &nd the: taking of possession of the
Subject PropeM, liy the Lessee:
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(i) The Lessor does not know of any latent or hidden defects
affecting the Subject Property or the uses contemplated by this Lease;
(ii) The, Lessor does not know of any surface, ground or
underground environxmentai waste or contamination or storage thereof nor any violation
of any "Environmcntal Laws" (as such terra is defused in Section 20.1(a) of this
Lease);
(iai) That Lessor is indelibly seized of ymarkeftble, fee simple title
to the Subject Property, and is the: sole owrier of and has good right, title and authority
to convey and transfer all property, rights annd benefits which are the subject matter of
this Agreement, free and clear of a.11 liens and encumbraitces; and there are no other
liens or claims on or affecting they Subject Property;
(iv) ' re is no condemnation, environmental, zoning or other
land -use regulation proceedings, Which rawotdd detrimentally affect the use and
operation of tlse Subject "Rmperty as contemplated by this Lease ,Agreement and the
Proposal;
(v) That no party except Lessee shall, on the Lease Date, be in or
have any right to possession of the Subject property;.
(vi) That there is no suit, action, claim, audit, arbitration, or legal,
administrative, judicial ,or othar proceeding, (including, without limitation, any of, thp,
foregoing relating to v�,Dlat ons of any Applicable Law, of any governmental authority
having jurisdiction of the SOject Property), litigation, investigation or proceeding
pending, or, to the knowledge or belief of Lessor, threatened, which relates to, affects,,
or involves the, Subject property, or which would impair or otherwise adversely ,affect
Lesson's abili y to perform i o'bligations under this T ease Agreement, which would
have a material adverse effect on the Subject Property; or which is or could become a.
lien upon the Property;
(vii) That as of tb: Lease Date, the Subject Property has, been exempt
from all ad valoinem real proiwrty taxes and therefore no tax is due for the year 1995
and all prior years;
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(viii) That there is perpetual legal and physical ingress and egress to
the Subject Propeny from a paved public: street;,
(ix) That there are no existing or pe.uling special assessments or fees
affecting the Subject Property;
(x) That the Subject Property may be used and operated as set forth
in this Lease and the Proposal, without any f other City, County and State approvals
with regard to Platting and Zoning (except for the Major Use Special Permit proms
aril Concurrency determinatdou). l;urthe-more, the Subject Property is either exempt
from: zoning and platting and/or meets all zoning and platting requirements of all
applicable government agencies except as provided above, so that the ,Subject Property
may be used and operated as set Forth in this Lease and the Proposal; and
(xi) All of the r:s resentations and warranties of Lessor contained in
this Lease Agreement shad continue to be true as of the Possession Date and said
representations and warranties shall be deemed to be restated and affirmed by Lessor as
of the Possession Date withou 't tlw necessity of Lessor's execution of any document
with regard thereto, and the ,Lessor's liability (except with respect to the environmental
condition of the Subject Property which is expressly addressed in Article XX of this
Lease) therefor shall survive the sigrtting of this Lease Agreement. Lessee shall have
no duty to investigate or inquire (except with respect to the environmental condition of
the Subject Property which is expressly addressed, in Article XX of this Lease)
regarding the accuracy or veracity of any representation or warranty of Lessor, and it
shall be deemed reasonable for Wsee to fully rely upon same. Should any of the
representations and warranties prove to be incorrect, it shall be Lessor's obligation to
cure those warranties and representations which are set forth herein forthwith at
Lessor's expense.
(b) The Lessor shall comply with all the terms of :nod make all payTnents
promptly tek the State and/or the roared of Trustees of the Internal Tmprovoment Twist
Pund of dae State of Florida (the "Tm tees"), pil.rsuant to the terms of the "Parthil
Modification of Restrictions" which was executed in connection with this Lease which
modified Restrictions, set -foot within Deed No. 19447. A copy of the Partial
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Modification of Restrictions and the need axe attWhcd herdO ,1.& Inhibit F. LessOr
shall provide Lessee with adequate proof that the payment is being made to the
Trustees in accordance with &.e Partial Modification of Restrictions. Should Lessor not
make the payments when due as mgaired pursuant to the Martial Modification of
Restrictions, then. Lzmee. may, make the pgmew and set off the amount of said
payment against the next accruing Tuns payments clue after providing Lessor such
written notice as is required, pursuant to the terse, of this Lase, and providing the
Ussor an opportunity to make such payment within a reasonable period of time.
The Parties hereto agree that should Lessor anticipate not making the payment
to the 'Trustees when due, that it shall mztify the Lessee 'Thirty (30) days prior to when
the payment is clue. Should the Lessee make the payment to the Trusts fliten, at
Lessee"S option and upon providing advance written notice to .Lessor, it may continue
to make the annual payments to the Trustee and deduct the amount of the payments
made to the Trustees from the next accruing Rent payments upon subinitting proof of
such payment to the reason mble satisfaction of the Lessor.
(r) Prior to the Possession Date, Lessee, at its sole cost and expense but
with Lessor's cooperation, shali have: the right, but not the obligation, to cause a Phase
I environmental. audit, andif warranted by the Phase I findings, a Phase II
environmental audit of the Subject property. If any environmental waste,
contaminations 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 2U of this Lease.
Section 1.3.2 Lessee's R6preseritations. The Lessee aclmowledges that it has
examined the Subject Property (except for hiddlen or latent defects and environmental
matters) and knows the physical condition of it, and subject to the provisions of
paragraphs (a), (b) arid -(c) above will accept the Subject Property in its pment
condition and without arty additional representations or warranties of any kind or nature
whatsoever by the Lessor as to its physical conditions. 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 construct, operate,
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maintain and manage the Leasehold Improvements upon the Subject Property; and the
Lessor shall not be required at any time 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 13.3 Tim Uaseholcl +mvernents to be is to Public.. Lessee
covenants that the Lmehold Improvements which are not restricted to crperaticonal,
enviromnental or duriAl Special Events. and other pike purpose, shaH be open to
adtuission to the general pubfic without discrimination upon patyment of such adrcission
charge as may be charged icy,+ Ussee in it sole diwr►etion. Lessee shall at all times
diming the Lease 'rerun comim „isly operate Les" 's business on the Subject Property
in a fiscally sound manner so as to nnaximiae the Gross Revenues produced by the
Project. Lessee will carry on its bushess diligently at the Subject Property through
the Lease Term and will keep tho ubj;zt Property of n for business on ,a continual
basis during the usdal days and flours for such Lousiness as are custonnary for this type
of use.
Section 13.4 C l 4n with Laws. The Lessee shall throughout the Lease
'perm, at the Lessee's sole expense, promptly comply wide all Applicable Laws. The.
I..essee shall likewise obyjlerve, and comply with the requirements of all policies of public
liability, fire and all other policies df in.surancre in force With respect to the Leasehold
xrnprovements.
&action 13.5 lbiig at to, Conctest„g2pi li The, lessee shall have the night to
contest by appropriate legal proceeding, without cost or expense to the Lessor, the
validity of any Applicable Law of the Mute referred to, and if by the terms (.A any
ApplicableLaw compliance may legally be held in abeyance without the iirncidence or ,
any lien, charge or liability of any kind against the title to the Subject Property, thy,
Lessees L=sehold Estate and without subjecting the T,xssee or the Lessor to any
livability of whatsmver nature for ffa'ilure so to comply, the Lessee nzy postpone
corripliame until, the final. deterru: udon of ,any proceedings, provided that all
prowdings shall be prosecuted with. all due. diligence and dispatch.
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Section 13.6 Use of the Subject Property. During the Lease Term, Lessee
shall use the Subject Property for the uses permitted by this Lease, and develop, and
continuously operate and manage, the leasehold Improvements so as to provide a
family entrrtaimnent attraction that. proinates wholesome family fun and appreciation of
nature; contributes to the monomic prosperity of the community; promotes the, unique
culture and history of Miami. and South F►orida to visitors from around the world and
offers an outstanding recreational � facility to twat ue-si'dents.
Sevion 1.3.7 FgEn . As a part of Pbase I I=ehold Improvetne-nu, the
Lessor is to construct, opperaw :and maintain, at Lessee's sole cost and expense, a
parking deck to be located on the Subject Property, adjacent to the main entrance of
sufficient capacity to accommodate Five Hundred (5G�iD) cars (the "Parking Deck"), and
in addition secondary or overflow parking as indicated below.
Section 13.8 Future Parking Lte uct iremieiq. In the event thti Parking Deck is
not sufficient to comply with zoning requ.itements, 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 (the "Southside Parking Lot"'). The Parties
agree that Lessee in conjunction with the Lessor shall develop the Southside Parking
Lot. The Lessee shall pay 'the Pro-.lata Costs incurred. by Ixssor in connection with the
construction, operation and maintenance of the Southside Parking Lot. "Pro -Bata
Costs" shall be defined to rnean those reasonable construction costs 'which have been
approved by the Lessee, which approval shall not be unreasonable withheld or delayed,
divided by the total number of spaces v) be accomnzodated in the Southside Parking
Lot" and then the product multiplied by those spaces allocated for the use of the Subject
Property. Lessee shall be responsible fbr the payments, required to be made, within/
Thirty (30) days of ieceipt of an acccptable. invoice from Lessor.
Section 13.9 Ichimura-Miami Za ne: Garden. The Lessee shall be required
to maintain the Ichimura-Miami Japan Garden, the "Japanese. Garden,' located within
the parcel within the Subject Property, ac legaily described and shown on Exhibit H,
to a standard of quality that will enure its preservation as a unique and special cultural .
resource for use and enjoyment by all :residents of an visitors to the City. TU
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Japanese Garden may be relocated to a comparable site within the Adjacent Property
and/or altered at the sole cost and expense of the Lessee, subject to the. review and
approval by the City 'Manager of the proposed loccation, amenities, layout, design and
construction schedule. In the event the Japanese Gatden is relocated to the Adjacent
Property, the Lessee stall be responsible for ft., i► atintemnce and repair of the
relocated Japanese Garden thro 4hhout the rase 'Term to ensnare, the existence of the
Ichimi,im Miaumi-Japan Garden. Comtruction associated with the relocation arAlor
alteration of the Japanese Gutlen by the Y.A%sm shall be completed in a time period not
later than the opening of Phase I Leasehold Improvements to the general public„
Section 13.10 The Brown House. The Lessee, at its sole cost and expense,
sill use a good faith effort to lzaorporate the historic coral rock house (the "gown
House"), or a, Po Lion ' thereof, located within the Subject Property into the Project.
The xessre, at its sole cost and expense, shall be requinx! to conduct a structu►al
assessment addressing the feasibility of the restoration and/or reconstruction of the
Brown House as a kart. of Phase I Leasehold Improvements &W provide a copy of such
asseswi6nt to the 'City Manager prior to a fwal. detarn, ination of a, potential reuse
program which shall be subject to approval by the Cite Manager.
REPAIRS, NfL E-ZMNANCE AND Zff,,RUVEMENTS
,Section 14.1. -air of�k'he Ixaschold Izprovemntss. The Lessee shall
ftoughout the Lease Term' at the Lessee's sole cost and expense, maintain in good,
ciean md orderly c:c,ndid on and repair the Subject Property and the Leasehold
Improvements. The lessee shall, ar,. Lessee's sale cost and expense, promptly snake ta,•
the Leasehold hWrovernents all necessary repairs, renewals and replacements, interior
and exterior, structurl and pot!st ruetuml, whether made necessary or caused by fire or
other �&=Jty, or by ord am y year and tear. All repairs, renewals and replacemenus
sha11. be of good quality sufficient for Ole proper maintenance. and operation of the
Usseholdl, Improvements and shall be constructed and installed in compliance with all
legal requirements of all gaverumental authorities having jurisdiction. 'Tine Lessee shall
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not permit the accumulation of waste or refuse matter, nor permit anything to be done
upon the Subject Property or the Leasehold finprovernen s, which would invalidate or
prevent the procurement of ali insuruncer policies which may at any time be required
pursuant to the provisions of article X1. All proceeds of insurances or account of any
loss or damage shall, to tb.e extent mluired, be applied on the cost of arty repairs,
renewals and replacements as provided for in this Article XIV. Nothing contained in
this l ease shall impose on the U%sor the r bligation to make any repairs or expend any
monies for the maintettqtrs of the Subject property, or the renewal, remplacernent or
repair of the Uasehold lmp;rovements.
Section 1.4.2. Altetation of Exterior 1,Mp yements. The following provision
only aappHes to! exterior iMproverne nts. Lessons consent shall not be required a.y to any
non-structural alteration, addition or change in the Leasehold exterior improvements
nor to any structural alten, ('doh, .addition or clonge involving, a. cost of less than One
Hundred Thousand I?olla'rs ($100,000.00) [to be adjuster every Tluee (3) years,
col ring on they f ina clay of the Fourth Lease Year, bated upon increase.s or
de ciwm (which, de civa.re shall not result in an amount less than One Hundred
Thomsand MR= ($100,000.!00) ) in the Consumer Price Index, calculated from the
Possession. Hate to the jinniversary of the, Possession Date on the year M' which the
adjustment is calculated'!, unless such non-stra ctm-al alteration, addition, or change in
the; Leasehold hupruvernents will substantially affect the character and/or the aesthetic
appearance of the Project. The Lessee shall not make or f&rnrit to be made any
stmctmru alteration of, addition to, or changer in, the Leasehold Improvements,
involving a cost in excess of One Hundred Thousand ($100,000.00) [to be ,adjusted
every Tilt (3) years, commencing on the first day of the Fourth Lease Year, baserd;:
upon increases or decreases (which decrease shall not result in an amount less than Drli
Hi red Thousand Dollars ($100,000.00)) in the Connuner Price Index, calculated
from the Possession Date to, the anniversary of the Possession Date on dte year in
which the adjustment is calculated), without the prior written consent of the Lessor,
which c*Lu nt shall not be u rerasonibly withheld or delayed. Regardless of the cost,
Less shall not unake or permit any demolition of the structural Leasehold
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Improvements without the prior written consent of the Lessor, which consent shall not
be unreasonably withheld or delayed. The Lessee shall submit to the Lessor detailed
Construction Documents and sp6cif cations of the proposed work, an explanation of the
weds 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
passible after rmeiving the information, but not exceeding Thirty (30) days from
receipt by Lessor of such information. Failure of the Lessor to deliver written
objection to Ixssee within' such Thirty (30) day period shall conclusively Constitute
Lessor's consent to the props work,
ARTICLE MT ,
LESSOR'S RIGHT TO PERFORM )USSEE'S CC3'i�Ea� ANTS;
Section 15.1 Perfonuance of Ussee. s Covenants to Pay Money. The Lessee
covenants that if it shall at wzy time default in the payauent of any hq*sitions pursuant
to the provisions of Article X, or shall !fail to make any other payment (other tlm
Rent) due and the Failure shall continue for Twenty (20) business slays after writt►ra
notice by Lessor to the Lesse'ey, ('Notice of Non -Payment of Imposition") then the
Lessor rnay, but shall not be obligated so to do, and without ftuiher notice to o
demand upon the Lessee and viiithout waiving or releasing the Lessee from any
obligations of the Ussee in this Lease 'contained, pay any Imposition, effect any
inLsurance coverage and pay premimns for it, o: make any other payment which Lessee
has improperly failed to pay as set forth in the Notice of Non -Payment of Imposition.
Section 15.2., Lessor's &ht to C'm Usseee's Default. ,Notwithstanding.
anything herein to the contrary as set forth in Article X'Vli or under this Lease, if there
shall be. an Event of lessee's Default involving the failure of the Lessee to keep the
Utaseholdi Improvements ir, good condition and repair in accordance with the
provisions of this Lease, to make any, neecssary renewals or replacements, or to
remove any dangerous condition in accordance with the requirements of this Lease
which would constitute an immediate threat to the Health, safety mW welfam of the
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public and/or the envirownent , then the larssor tuay proceed with any permissible
action in a Court of iAw having jurisdiction, but Lessor shall not have the right, to
make good any such alleged Event of Lessee's Default.
Section 15.3 Reimbursement of Lessor and Lessee, All sums advanced by the
Lessor pursuant to the provisions of Section 15.1, and all necemary and incidental
costs, expenses and attorneys fees in connection with the performance of any acts,
togeftr with interns€ at the Prime, Interest Rate per annum from khe date of the making
of adv rwnts, shall be drone additional Rent, and shall be promptly pa;/able by
tine L�:ssee, in the Mvectave amounts so advanced, to the Lessor. 1.1is reimbursement
shall be made on dewnd, or, at the option of the Lessor, may be added to any Rent
then due or becoming due under this Lease, and the Le.S:':CIW covenants to pay the sum or
sums with interest.
ARTICLE '�I
Section 16.1 Definitions. The phase ."'Completely Destroyed" shall be
construed to mean the destn-iction of the safe, tenantable use or occupancy of a
substantial portion of the Leasehuld Improveinents under this Lease. The phrase
"Partial Destnicticn" shall be construed to mean any damage to the Leasehold
improvements, but not to such an extent that the requh-ed repairs, restoration, or
replawwnl cannot reasonably be completed witiein Ong Hundred and Fifty (150)
calendar days.
Section 16.2, )'-&ssee's Dub to Reprir� Restore or gVlace the Leasehold
hpprovements After DaL=Lee. Irn ,the event of damage by fire or ot1;emise of the;
Leasehold Improvements inchidbig any machinery, fixtures or equipment which area
pant of the Leasehold Improvernews located on the Subject Property, the Parties agree
as follows:
(1) In the event of Panaal Destruction, within Sixty (60) calendar days of the
damage (subject to reasonable and/or Unavoidable Delay):, the Lessee shall using both
Les-see's farads and insurance pnx=eds available for that purpose, commence and
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diligently pursue to completion within One Hundred and Fifty (150) calendar days from
the date the damage occurred (subject to reasonable and/or Unavoidable Delay), the
repair, restoration or mplacement off' the damage or destroyed Leasehold
Improvements (the '"Restoration Work"), and this Lease shall remain in full force and
effect, with no' abatement in :Rent.
(h) In the eves,( ft Leanhold Improvemrft am Completely Dairoyedl,
within Sixty (60) days of the damage, the.� 1shall, using NA its own fuwds aml
insumtce proomds available for that purpose (subject to reasonable and/or Unavoidable
Delay), (commence and diligently pursue to completion the Restoration Work, in
Accordance with the provisions of Section 16.3 below, and shall complete the
Restoration Work within Figbteen (lit) months from the date the damage occurred and
this Lease shall remain in full force and effect, with no abatement in Jll eht.
(iii) In the event the Leasehold Improvements are completely destroyed at
any time during the last Five (5) ,years of the Lease Term, within Sixty (60) days of the
damage, the Lessee shall have the option (a) at the Lessee's sole cost and expense, (but
using along with the Lessee's own fiends iwurararw proweds available for that purpose),
to 'commence and diligently pursue to completion the Restoration Work., in accordance
with the provision.- of &-ction 16.3 below, and Lessee shall complete the Restoration
Work within Eighteen (18) months and this Leap shall remain in full force and effect,
with no abatement in Rent or (b) to elect not to undertake the Restoration Work by
pnuvidirig ,written notice to Lessor and in which event this Lease ,shall terminate, and
the Lessee shall at the Lessee's sole cost and expense, (but using along with the
Lessee's own fwxia insuranze proceeds available f6r that Purpose) deliver pos=ision of
the Subject Property to Lessor fee and. clear of all debris and Lessor and Lessee shall,
each be released thereby from, any further obligations hereunder accruing after the
effective date of such termiwation, excgpt that such release shall not apply (aa) to any
sums accrued or due (bb) Lessee's obligations regarduig surrender of the Subject
Property Wading the removal of debris, and (cc) environmental l oility as provided
for in Section XK.
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Section 161. Performance of Restoration Work. In the event Lessee
undertakes any Restoration Work in accordance with the provisions of this Article,
such Restoration Work by Lessee shall be substantially as possible to the condition that
e,tiswd irnn;iediately prior to the damage, and shall be performed in accordance with the
provisions of Article IV applicable to the construction of the initial Leasehold
Improvements. Lessor hereby acknawledges and agrees that Lessee's obiigadons
hemuxler and the btinety (90) clay and Eighteen (18) month time. periods set forth
above.are subject to Unavoidable Delay, aW reasonable extensions based on the
severity of the dosage.
Section 16A. No Wat to Terminate. Lessee waives the provisions of. any
.statute.., code or judicial decision which grants Lessee the right to terminate this lime
in the'event of damage ac destruction of the Subject Property.
Section 16.5. Lessee's RiRht to�I'eminate in Last Five Years. if Lessee
elects to axercise the option given under Section 1.6.2(ii) to terminate this Lew., then
any and all instmwe proceeds paid for damage or destruction of the Leasehold
Improvements shall be applied as follows:
(i) Pi-ocwAs shall be applied lust toward the reduction of the unpaid
principal balance of any and all obligations secured by a Leasehold Mortgage.
(ii) Tha balance of the proceeds, if any, shall be paid to the parties as
their resctive interests may then appear -
Section 16.49). Payment for Construction of the Restoration Work. Subject to
any regairements of" it Leasehold Mortgagee, all insurance proceeds recovered by any
party on account of damage or destruction to the Leasehold Improvements, less the
achlal cysts, if any, to the applicable party relating to recovery shall be applied by the..
Parties to the payment of the cost of the Restoration `Work (pursuantto this Article and
Section 11.4) to restore the Lip-schoid Improvements. The. insurance prccec&shall be
paid out, the Restomtiofi Work shall be performed, and the Lessee shall make
additional deposits with the Escrow Agent, if any are requimd, vJ1 in accordaauce with
Section 11.4, as may Ike aapplwaa!ble.
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Section 16.7. 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 ently for insurance money that shall come into its hands.
Section 16.8. Unused Insurance Proceeds and "Deposits. In the event any
proceeds of insurance or sums deposited with the Lessor in connection with the
Restoration Work shall remain in the hands of the escrow agent or the Lessor, if the
1paaies have agreed to allow the Lessor to hold the insurance prods until compledom
of die Restoration Work, and if the Ussee shed not be in default under this "Lea
Agne,:rnent in respect of any mutter or thing of which notice of default has been served
on the Lessee, then the remaining funds shall Le paid, first, on any unpaid Rent, and,
second, to the izsse e..
AIRTICLE Ali
,A►RIIrFRATI(, N
Sections 17.1. Arbitration. A panel of arbitrators ("Arbitrations panel") shall be
established to'resolvis ,uiy controversy, dispute or breach, arising out of or relating to
"this I ase, ( excluding any controversy, dispute, Weach or Event of Less(w's, Default
with respect to the pa anent of Minimum Annual Rent or percentage Rent), including
but not limited to:
a) lion tmozwtary disputes including alleged defaults of Lessor or Lessee.
b) Whenever, the term "reasonable" applies to Lessor or Lessee`s actions either
to be taken or taken.
c) Wherever under the Lease an appmval is required which "shall not to
unmasonably withheld or delayed".
d) McmIetaa), disputes ottaer than the payment of Minimum A.mua.i Rent or
1'erce�+tag�� Pint.
+e) Disputcs concersaing: (i) whetter or not a default as described in Article
2 .1(b) his(curred (ii) wl:Lthe;r or, not a default as described in Article
: 6.1(tt, can or ant be cured within'rhirty (30) days, and/or (iii) whether
or not the I ,essee or any person holding by, through or under the Lessee, (in
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the event of a default which can not be cured within Thirty (30) days) has in
good faith and promptly conmenced and continued to diligently and
reasonably prosecute all action necessary to cure the default.
The Parties agree that in the event that Lessor has commenced an action in court
with respect to Pin went of Lessee's Default pertaining to the payment of Minimiun
Annual Rent aW/or Percentage Dent, notwithstanding anything herein to the contrary.,
the Lessee may counterclaim and/or litigate any matter in court which Is related to or
arising out of Lessor's action.
Section 17.2 Procedures. These procedures will govern any arbitration
according to this Lease.
a) Arbitration will be wrtunewd by: (i) a written demand nude by the City
Manager on behalf of the I..rssor or a written demand made by the Levw, containing a
statement of the question to be arbitrated aDd the name and address of its :arbitrator; (ii)
a written demand nude by the City Manager on behalf of the Lessor at any time after
an Event of Lessees Default (as described in Article 2.6. I(b)) spceifyir j the default and
tbe. name and address of its arbi .tor or ' a written demand made by the Lessee
sTecifying the default and the name and address of its arbitrator at any time after an
E'Vent of Lessor's Default.
b) Within Teri (10) days rafter its receipt of the written demand the other Party
will give the demandant written notice of the name and address of its arbitrator. Within
Ten (10) days after the appointment of 'tire tvo arbitrators, the two arbitrators shall
meet and appoiW a third arbituator which shall constitute the Arbitration Panel.
c) Every meml.vx of the: Arbitration Panel must be a member of the American
Arbitration Association.
d) If either party shall fail to designate a member within Ten (10) days after
receipt of the writt a demand. 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, „ shu-01 act in the, same mminer as if he. had been. the: =mber
designated by the par, �y so failing to designate an arbitrator.
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e) if the two members appointed by the Parties are unable to agree upon the
third member within Ten (10) days from the last date of designation, then upon the
request of either of tine Two (2) members, or either Party, such third member shall be
designated by the President of the Florida Chapter of the American Arbitration
Association, who shall appoint such third member within Ten (10) days of the request.
f) A hearing shall be commenced, within Thirty (30) days following the
selection of the Arbitration Panel. A court reporter shall nuke a transcript of the
hearing. The Pa. -ties and tine Arbitration Panel shall use their best efforts to conclude
the heating within►. Ten (10) days. The pwies shall be entitled to such pre-trial
discovosry as trey may ag , or as determined by the Arbitration Panel. The
Arbitration Panel shale have the right to question witnesses at the hearing, but not to
call witnesses. The Arbitratil on Panel may grant continuan is only by the agreement of
both Parties. The Arbitration Panel may render a decision at the close of the nearing,
or may request briefs on any or ell issues. Any and all such briefs, including reply
briefs, shg1I be tiled with the terms and on the schedule ,set by the Arbitration Panel,
Nit in any event no later than Forty -Five (45) days. following the commencement of the
hearing. The Arbitration Panel shall render a determination within Thirty (30) days
from the conclusion of the hearing. If no determination is rendered within such time,
unless the panties agree otherwise, a utew Arbitration Panel shall be selected as
described above, but the new Arbitration Panel sIMU rv; tier a determination solely upon
review of the record of tine hearibg without a finer hearing.
g) .All actions, trAyings and decisions of the Arbitration Panel shall be
conducted, based upon and in accordant a with the Commercial Asbitration Rules of the
Ameracan Arbitration Association. In all controversies, disputes or claim, with rest;.
to the value of the real property for purposes of establishing the City Payment in Lieu
of Taxes referred to Arbitration under the provisions of this Lease Agreement, the
Arbitration shall be comiuctW in acwitylame with the Peal Estate Valuation Rules of
the American Arbitration Association. In determining any ranter before them, the
Arbitration Panel :shall apply tlu: terms of this Lease Agreement, and shall not have the
power to vary, modi6, or refbrm, any terms or provisions of the Tease Agreement in
any respect,. No Arbitnter is atathorized to make an award of punitive or exemplary
damages. The Arbitration Panel shall afford a hearing to the Lessor 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 Pares in Dade County, Florida.
h) The Arbitmtion .Panel selected hereunder shall agree to observe the Code of
Ethics for Arbitrators in Corrrmmial Disputes promulgated by the American
Arbitration Association and the American FW Association, or any successor code. Tim
decision of a majority with respect to any matter referred to it under this Lc•me shalt be
fend, 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 explaatation of the, basis for the determination. Each party shall pay
the fees and expenss of the member of the Arbitration Panel designated by such party,
such party's counsel mad witness fms, and one-half (I/z) of all expenses of the third
member of the Arbitration P`Ml. The decision of the Arbitration Panel will be final
and' non -•appealable, and may be enforced according to the laws of the State of Florida.
and jogment upon the awan'd rendered 'by the Ar!bit Ation Panel shall be entered in any
Court having jurisdiction, thereof.
ARTICLE XI%Mj
CH[ANICS LE ENS
Section 1 .1. Duce Psi l
tm.eecha nits Liens., The Lessee shall not suffer or
permit any mechanics liens to be filed hgainIA the titEe to the Subject Property, nor
against the Lessee's Uwr told Estate, nor against the Leasehold ImprovemenIS or by,.
-reasorx of the Work, labor, service's or rnvaterials supplied or claimed to have been
supplied to the Lessee or any Subtenant. Lessee shall obtain releases or waivers of tle
contractor, subcontmetors and any other persons varnishing work and materials
discharging all liars and claims for all Work and materials furnished and similar
rr.lems from ft architect or other recipient in she ease of payments out of the funds to
the anvbjtert or other recipient.
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Nothing, in this lease Agreement shall be construed as constituting the consent
or request of the Lessor, expressed or implied, by inference or otherwise, to any
contractor, wbcontrac:tor, laborer or materialman for the performance of any tabor or
the furnishin of an materials for an specific improvement, alteration or repair of or
i � y � l� p Is
;
to the Subject Property or the Leasehold Improvements. If any numhataics lien shalt at
I any time be filed against the Subjw Property including the Leaschold huprovemen s,
s
the Lessee shall cause it to be disch&rged of record or transferred to bond within Thirty
(30) days air ft date the Lessee hz9 knowledge of its filing. if the Lessee shah 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 aanotma claimed to be due or by procuring the discharge of the
lien by deposit in. court or bonding, or in the evert 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 Lienar 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 arnounts paid
by the Lessor shall constitute additional Rent dose 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 mechcs lien so long as the Lessee shall in good faith proceed to
contest the lien by appropriate proceedings and if the Lessee shall have given notice in
writing to the Lessor of i m intention to contest tl-ae validity of the lien and upon requ g
of Lessor, shall Aarnish :and keep in effect a surety band of a xespon�ible and subrst l
surety compaurty reasonably acceptable to Lessor, or other security reasonably
sansfactory to Lessor in an amount su,f icient to page one hundred ten percent of tdie,
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.
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ARTICLE XiX
QON',EN�AINS' WASTE ANC IPIS�*EC�'IQaly
Section 19.1. Waste. Except as otherwise permitted by this Lease Agreenunt,
the Lessee covenaaits not, to do or suffer any demolition, waste or damage,
disfigurement or injury to the Subject Property or the L-schold luiprovemerits or any
part of it. The provisiors of this Section 19.1 shall not apply to any demolition or
disfigurement involvtd with regain, mrwvadons, upgr"ng or new construction, or to
the. construction of takes, canals raid other similar vype of waterways or depositof clean
fill at the Subject Property or the removal of fill from the, Subject Property for such
purposes.
Section 19.2 of S'uHect Property. Lessor, its agents,
employees and authored repmsentatives may enter the ,Subject Property at any time in
response, to an emergency,, and atreasonable times as Lessor deems necessary to,
incident to, ° or coturcted with the performance of Lessor's duties and obligattioas
hereunder or in the exercise of its rights and functions.
ARTICLE XX
ENVHtOiltMENMI, LIABIE iX
Section 20.1. Definition of Terms. For purposes of this Section the following
terms shall have the meaning aWributed to them in this subsection;
` EaVironnmentndl Laws" small mean all applicable requirements of federal,
,vute and local, envitomaier41, public health; and safety laws, regulations, orders,
13erndts, licenses, approvals, ordinances and directives, including but not limited to, all,,
applicable req?, irements of: the Clem Air Act; the Clean Water Act; the Resource
CIbnservadon and Recovery Act, as amended by the H.-mardous and Solid Waste
Atnendmnts, of 1994; the Safe Drinking Water .Act; the Compreheasive EnvironmenW
Respow, Compensmion and Liability Act, as amended by the Superb Amendments
and Reaut►hortzation Act of 1986; the Occupational Healih and Safety Act; the Toxic .
Substa.wes Control Act; the Pollutant Discharge Prevention and Control Act; the Water
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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 int art all costs incurred in connection with correcting any
violations of any Environmental Laws arKVor the Clean Up of Existing Contamination.
(c) "Existing Contamination" shall mean any hazardous waste, materials or
substan►. es revved by the Phase I and/or Phase U audits of the environmental
condition of the Sui.?ject Property which is undertaken as provided for in Section
13.1(c) and 20.3 hereof.
(d) "Clemi. Tap" shall mean any remediation and/or disposal of hazardous
materials, water, ,ImVor substances at or from the Subject Property which is oniered
by any federal, stale, or local environmental regulatory agency, if necessary, to avoid
injury to persons or propierty in connection with the Existing Contamination.
Section. A.2. .Envirorameatal_ 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 haWle, transport, store, rry.,at, or dispose of any
hazardous wastes, materials or substances (the "Conrasninants"), on the Subject
Property. The U-ssee warrants "rand represents that it will not knowingly conduct any
activity on the 111"I",fx l Property in violation of any applicable Enviromnental Laws and
that any activit f on, the Subject Property will be cDnducted in compliance with
applicable E'nvi?��. rmiental Laws;.
upon .enniaaation or expiration of the Lease, should it be determined through an
environrne'ntal audit that the Properly, , has Contaminants on it, then, Lessee shall, at its
sole cost and expene, cause all'Contaminants, including their storage devices, placed;
in. or about the Subjrxt Property by Lessee, its employees, agent`, or, Subtenams, or at
Lessee's direction 20 be removed from the Subject Property and transported for use,
storage or disposal :in accordaoce and compliance with all applicable E;nvironmemud
Laws.
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Section 20.3. Invegilation .of %environmental Condition of the Subject
Pro rt
(a) The Lessor hereby grunts to the lessee, its agents and other
representatives full and continuing access to the Subject Property and all parts thereof,
at all times 6.fter the Lease Late., 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 Ubat subsNt cent to the execution of this Lease Agreement,
the Lessee may 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 lI audit to be performed to deters whether
the Subject Property is in compliance with all applicable Environmental Laws. The.
iPhase lI audit will evaluate the; extent, if any, to which Contaminants have been or are
being released, discharged, emitted, or otherwise disposed of into the environment in
vioiat;ion of P-nvirommental maws (the "Inspections"). In the event that the Phase II
audit is per:ormed and it is determined that the Subject Property is not in compliance
with the applicable Environmental Laws and a Clean up is required, the Parties shall
proceed as f(yllows:
(i) Lessee may elect to cancel this Lease within the time period set
forth within paragraph 4.3(b)(ii) in which case the Lessor shall reimburse the Lessee
for reasonable costs expended by Lessee in connection with the Phase I and/or Phase II
audit;
(R) Lessee shall serve the Environmental Condition Acceptance
Notice upon the Lessor (within the time period set forth within paragraph 4.3(b)(H)),
f and the Pardes shall agree to allocate amongst the Lessor and the Lessee the financi.
responsibility. for the Costs of the Clean Up in accordance with Section 20.5 below;
(b) Inspection Indemnity. Notwithstanding, anything contained in this Lease,
Lessee sl l (i) fi m ediately pay or cause to be removed any liens filed against the
S►abject Property as a result of any tnsp cDO performed by or on behalf of the Lessee,
pursuant to this Article; (ii) immediately repair and restore the Subject Property to its
r4ndition existing itnrnMiately prior to the conduct of Lessee's Inspections should
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Lessee or its agents damage the Subject Property; and (iii) indemnify, defend and hold
the Lessor harmless from and agents all claims to recover damages for injury or loss of
i
1 property, irersonad 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 cmployees.
{ Section 20.4. Lessor's Representations and Warranties. The Lssor represents
and warrants that no lawsuits, claim, legal or administrative claims have been brought
l moulting front the Lemor's use or occupancy of the Subject Property;, nor is Lessor
i
i aware of the existetm of any hazardous substan�,s thereon including during the
i
I Lessor's use, occupancy an&or ownership of the Subject Property.
Section 20.5. allocation of Financial, R nsib li for Cleartu of Existiz%
Contamination. In the event it is determined that there is Existing Contamination on
the Subject Property rewiring Clean-up and the Parties agt+et that this Least (subject to
Section 20.3) should. remain in full force and effect, the Parties hereby agree that they
will discuss and in good faith agree to a mutually fair and equitable distribution of the
Costs to be incurred in connection with the Clean-up of the Existing Contamination.
The Parties hereto agree that the time allocated to such Clean Up AW1 be Oonsidered
to be an Unavoidable Delay for purposes of Lessee talking Possession of the Subject
Property. Furthermore, in the event that Lessee takes Possession of the Subject
Property prior to, cornpletion of the Clean -Up, the time period that it takes to perform
the Clean Up OW1 extend the .Lease Term by an equal number of days (excluding such
time periods after the actual remediation andlor disposal is completed but the
regulatory agency imposes monitoring requirements at the Subject Property in
connection with such Clean -Up).
Section 20.6. Lessee's Liability► for Contamination Diving Lease Terra. Ibe,
Lessee agrees to undertake at the Lessee's sole cast and expense, any necessary action,
including any rernediation mWor disposal mquired as a result of a release of a
Contaminant occutxirig can or from the: Subject Property in connection with any activity
i
or acts of the Lessee or the Less agents, or the Subtenants during the Lease Terra.
i((:1
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Section 20.7. Lessor's Liability for Contamination During Lease Term. The
City agrees to undertake at the Lessor's sole cost and expense, any necessary action,
including any remediationn and/car disposal required as a result of any release of a
Contaminant occurring on or from Watson Island which carries on to, over or under,
or in any way affects, the Subject Property, which is caused as a direct result of any
acts or omissiors of the Lessor or the Lessor's employees or agents.
Section 20.8. Tndega!t . If the Lessee's or the Lessor's warranties and
representations ctantained in N.% Article are false or brew.:hed, or if the Lessee fails to
fully, comply with its va idertakings p2rmuant to Section 20.6 'he"r f, or if the Leswr
fails to fully comply with its undertakings pursuant to Section 20.7 hereof, the Lessee
or the Lessor, as the cm may be, agrees to defend, indemnify, and hold harmless the
other party and its agents, officials, and employees, to the fizllest extent permitted by
law, froth , and against all expenses of remediation, disposal or other similar Vpe of
cleann up or action necersary for compliance with the Environmental Laws, and any and
aR claim, causes of action, or demands, ;in law or in eqaity, including but not limited
to, all lien claims, administrative clamms, claims for injunctive relief, claims of property
damage, natural resouri:.ms damages, environmental response and clean up costs, fines,
penalties, and expenses (including without limitation, counsel fees, consultant fees and
expert fees, coats and expenses incurred in investigation and defending against: the
assertion of such liabilities), which may be sustained, suffered or incurred by the said
pots breaching party, its agents, officials or employees and that arise out of or related in
any gray to the Subject Property and Leasehold Improvements.
Section 20.9. Phase I Envirommental Assessment at End of Lease Ter i. ,fit aoy
time within the Twelve (12) months before the expiration or earlier termination of the ..
Lase Tenn. Lessee, upon written request by, the City, Lessee, at Lessec s sole cosi
and exptme, shall cause a: Phase I envirom rental assessment of the Subject Property
vW the J[=whold Improvements to be completed by a professional envirornental
comultud approved by the City Manager. If the results of said environmental
ttawisttneaat indicate that the. Sul?iect Property and the Leasehold Improvements are not
in compliance with Environmental Laws, then, Lessee, at its sole cost and expense,
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"1
shall undertake any required action and/or rennediation and/or disposal necessary to
effect compliance with Finviromental Laws.
Section 20.10 Survival of Lessees Obligations. The respective rights and
obligations of Lessor and Ussee under this Article XX shall survive the expiration or
termination of this Lease.
ARTICLE XXI
MLIC UTILITY CHMGES
Section 21,1. Lessee to Provide and Pav for Utilities. The Lessee shall pay,, or
cause to be paid, all proper charges, including connection and tapping fcers, for the use
of gas, electricity, light, heat, water, sewer, storm sewer and power, fm- lims,
telephone, protective services and other communication services, and for all other
public or private utility services, which shall be used, rendered or supplied upon or in
connection with the Subject Property and the Leasehold improvements or any part of it,
at any time during the Lease Term. The Lessee shall comply with all contracts relating
to any services and will do, all other things rewired for the maintenance and
continuance of all services as are necessary for the proper rnainmenance and operation
of the.; Subject Propel aWl. the leasehold Improvements. 'The Lessee will also, at its
sole cost and "expense,,, procure any and all necessary permits, licenses or other
authorization required for the lawful and proper installation and maintenance upon the
Subject property of wires, pipes, conduits, tubes and other erluipmem artd appliances
for use m supplying any such utilities, servicese or substitutes to the Subject Propcerty
and the L. ,&%r will cooperate with and assist the Lesser in such endeavor.
Section 21.2. Le.ssor Not Liable for Failure of Utilities. Lessor shall not be
Halle (other than for their own or any of their agents,, servants and entploye,:s gross
negligence) for any failure of water supply, sewer, gas or electric. current, or for any
injury or damage to any Person or property caused by or resulting water, sewer, gas or
electricity which may leak- or flow from the water, sewer or gas mains on to any part of
the Leasehold %pnovvrnents or the Subject Property.
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ARTICLE; XXII
INDEMNIFICATION OF LESSOR
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 Lessor against and from any and all claims by or on behalf of any person,
firm'or corporatiort, arising, (other than due to the Lessor's gross or wanton
Mgfigewe upon, the Subject property) from any Work in or, about the Subject Property
and ft Leasehold 1cnproverrient<s, The Lessee also agrees to indemnify, defend and
raft the Lessor harmless against and from clainis and damages arising (other than due
to the Lessor's moss or wanton negligence), during the Lease Term from a hazardous
condition of the L rAsehold Emprovernents and Subject Property, or arising, other than
due to the Lessor's gross or wanton negligence, from any breach or default on the part
of Ili Lessee to be performed, pursuant to the tentns of this Lease Agreement, or
sussing front sky act or negligence of the Lessee or any of its agents, contractors,
seriants,,, employees or licemees, or arising, (other than due to the Lessor's gross or
wanton negligen=) from any accident, injury .or damage caused to any Person
occurring during the Lease Tenn 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. In case any action or proceeding be broughtagainst 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 .Lets be rerguired to defend any action or proceeding pursuant to
this Auricle, XXII to wWch action or proceeding the, Lessor is made a painy, the Lessor
slutll also be enfltle�l to appear, defend, or otherwise take part in the (natter involved, at .
its `election, .Acted at the sole, expense of the Lessee (except the Lessee shall not b6
obligated to pey ,coupse,l fees when an insurance carrier is obligated to and does defend
the Usaor), by cmmsel located within Dade County of its oven choosing, provided this
action by, the %ssor does not limit or make void any liability of any insurer of the
Lessor or the Ussee in respect to the claim, or matter in question and provided that tb_-
legal fees and costs are reasonable. The foregoing agreements of indemnity are, in
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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 XMII
LIEN FOR RENT AND OTHER CHARGES
Section 23.1. Lien for Recut. 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 and attorneys fees which may be incurred by the
Lessor in enforcing the provisions of this Lease Agreement 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, and upon the Lessee's Leasehold Estate,
subject and subordinate, however, to any Leasehold Mortgage and to. the rights, of any
Leasehold MoIrtgagee and to the lien given by Lessee in the purchase of any equipment,
machinery, furniture, fixtures' or other peisonalty utilized on or in the Subject
Property, and may be enforced by all remedies at law and in equity.
ARTICLE XXIV
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ART'IC%„E XXV i
CONDEMNATION
Section 25.1. Entire Subect Property Waken ley Condemnation, In the event
that all of the Subject Property and the Leasehold, hnpmvements, (or such portion
thereof as shall, in the goad faith opinion of Lessee, render it economically unfeasible
to e5ect restoration thereeaf) shall b ti ,en for any public purpose by the exemise of th.e
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
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t
pursuant to this Le2.se 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 Lessew, respectively, anri 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 Less=, and if Lessor and Lessee's Leasehold Mortgagee shall trot agree in writing
as to their respective portions of an avard within Twenty (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 Prol,�erty and Izaschold Improvements and Lemor'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 length transaction. In no
event shall Lessee be entitled to compensation for any ownership inwrest in the Subject
Property at the time of condemnation.
Section 25.2. partial Taking of Subiect Property by Condemnation.
(a) lu the event that less than all of the Subject Property or Leasehold
Improverne= shall be taken for any public use or purpose b the exercise of the: power
Y
of eminent domain, or shall be conveyed by the City and Lessee acting jointly to avoid
' proceedings of such taking, and Lessee shall be of the good faithh opinion that it is
economically feasible to effect restoration thereof, then this Lease
and all the
covenauts, a"on, iitionns and provisions hereunder shall be aid remain in full foie mxi
effect as to all of the Subject Property not so taken or as I conveyed (except provided in
subsection 25.3). Desse e. shall to the extent condemnation proceeds are made availplAe
to 'it pursUWt to the terms hereof, remodel, repair and restore the Leasehold
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Improvements so that they will be comparable to the Leasehold Improvements prior to
the condemnation, taking into consideration the fact of the condemnation; provided,
however, that in so doing, Lessee shall not be required to expend more than the amount
of any sucli award actually received by Lessee, less all costs and expenses (including
reasonable attorneys' fees) incutTed in the collection of same.
(b) 11re award or awards of damages allowed to City and Lessee shall be
paid to and receive-.J by the parties as follows:
(i) 'There shall be paid all expenses, if any, including any reasonable
attorneys' fees, incurred by City and Lessee ia. such oondemnation suit or conveyance;
(H) 'There shall be paid to the City the value of the portion of the land
so taken, which Jand shalt be valued as if unimproved and unencumbered;
(iii) There shall be paid to the Lessee any amount by which that
Lessee profits and value of Lessee !interest in the Lease Agreement have been reduced
by the taking;
(iv) There shall be paid to the Lessee the amount requh-ed to complete
the remode1mg and repaiis to the Leasehold Improvements pursuant to (a) above;
(v) City an1 Lessee shall be paid portions of the balance of said
aw:vd 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 in its condemnation
award,
Section 25.3. Ad tine of Mi�i� Arngaai Rent U000n Partial 'T4d In
the evev a part of the Subject Property and thne Leasehold Improvements, dwreoin, if
any, .shall be take.^. 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 Resit
pursuant to this Lease Agreement shall be paid by Lessee to the date of such taking or
conveyance, and after such date the Minimum Annual I`i ent for the. remainder of the
subject Amperry shall &- reduced by ,an amount equal to the 1Mininu rim AYmual Rent
then in effect multiplied by the percent by which Gross Revenues are affected by such .
taking.
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Section 25.4. £posit 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 Le sehold Mortgagee described
in Section 6,8 above:, any awardd made in respect of the Leasehold Improvements in a
conderrnnatioa pmw-c'+e 1iRg shall be deposited with the Leasehold Mortgagee as Escrow
Agent(unless 1`zmahold Mortgagee refuses to act as such, in which case the City and
Wsee 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
related purposes. Lessee shall make additional deposits with the Escrow Agent, if any
are requRed by this Lease, all in accordance with the terms of this Lease.
Section 25.5. Ri___ghts of .Le ,seholdwMortga�. Lessor and L essee shall not
_._
settle or compromise the amount or division of any award in any condemnation
l priding without amy LeaseWd Mortgagee's consent. Any L,easehoId Mortgagee of
f Lessee shall be entitled to appear in any condemnation proceedings and. make claim for
the share of any sward to which Lessee is entitled by the terms of this Article.
Section 2.5.6 Tern rare Taking. In the event that all or an portion o
___..�� .._,�._ n Y Po o f the
Leasehold hnprovements or the Subject Property shall be taken by the exercise of the
right of emiruent 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 it-, 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 terms of the
order of the authority which make, the ternporary taking or by the, conditions resulting
from the taking, including the loss of its possession of all or any part of the Uaschold
Irnprovemenm or tthe Subject Property. In the event the taking for goverrtrmntal
occupancy is`for a period entirely within the tenn of this Lease Agreement, then Lessee
shall be entitled to mce ve the entire amount of any award made for the taking, whether
p9d by way of darr ages, rent or otherwise. If the period of governmental occupancy
extends beyond the termination of the Lease Tenn, the amount of the award,. after
payment to Lessor of the estimated cost of restoration of the Leasehold 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 Leasehold Improvements, shall be apportioned on an annual basis
during the period within the term of this Lease Agreement to which the award is
applicable and shall be deemed a part of Lessee's Leasehold Estate for all purposes in
this Lease Agreement. In the event of any award without separately determining the
amount of the awW applicable to the taking of the interest of Lessor in this Lease
Agreement and in the Leasehold Improvements and if Lessor and Lessee shall not
agree in writing as to the proportion of the .award so applicable to the parties, then
Lessor and Lessee shall submit the natter to the court on stipulation for the purpose of
a judgment determinative of the interest of the parties. 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 XVU.
ARTICLE XXVI
DEFAULT PROVISIONS
Section 26.1. Events of Default;Lessee. Each of following events is defined
as an Event of Lessee's Default:
(a) The failure of the Lessee to pay any installment of Minimum Annual
Rent or Percentage Dent, when due and the continuance of the failure for a period of
Sixty (60) days .after notice in writing from the Lessor to the Lessee;
(b) The failure of the Lessee to perform any of the other covenants,
conditions and agreements of this Lease Agreement on the part of the Lessee to be
Performed, and, the continuance of the failure for a period of Thirty (30) days after
notice in writing (which notice shall specify the respects in which the Lessor contends
that the Lessee has-, faded to perform any of the covenants, conditions and agreements)
from the Lessor to the Lessee unless, with respect to any default which cannot be cured
within Thirty (30) days, the Lessee, or any person holding by, through or under the
Lessee, in goad !Faith, promptly after receipt of written notice, shall have commenced
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and continued diligently to reasonably prosecute all action necessary to cure the
default;
(c) The ding of an application by the Lessee: (i) for a consent to the
appointment of a receiver, trustee or liquidator of itself or all its assets; (ii) of a
voluntary petition in bankruptcy or the filing of a pleading in any court of record
admitting in 'writing. its inability to pay its debts as they come due; (iii) of a general
assigninent 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 procee-ding; or
(d) The entry of an order, judgment or decree by any court of competent
jurisdiction, adjudicating the Lessee as bankrupt, or appointing a receiver, trustee or
liquidator of it or of its assets, and this order, judgment or decree continuing unstayed
and in effect for any period of Sixty (60) consecutive days, or if this Lease Agreement
is taken under a writ of execution.
Note: In the event this Lease Agreement is assumed by or assigned to a trustee
pursuant to the provisions of the Bankruptcy Deform Act of 1978 (referred to as
Bankruptcy Code) (11 USC it et seq.), and the trustee shall cure any default under this
Lease Agment 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 Assmutwaces), and if
the trustee does not cure such default and provide such Adequate Assurances under the
Bankmptcy 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 inunediately to possession of the Subject JPropeity 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 Lessim-'s Default. The Lessor may treat
any one or more of the Event(s) of Lessee's Default as a breach of tads Lease
Agreerne4t, and thereupon at its option, by serving written notice on the Lessee and its
1-=-sehuld mortgagee of the Event of Default, the Lessor shall have, in addition to
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every other right or remedy existing at law or equity, subject to: (i) the provisions of
Article VI; (ii) compliance with all applicable laws; (iii) the grace periods and cure
periods set forth within this Lease, and (iv) with respect to Event(s) of Lessee's Default
described in Section 26.1 (b) above, subject to the requirements pertaining to
arbitration as set forth in Article 17 of this Lease, one or more of the following
remedies:
(a) Bring an action in court to terngnate Lessee's right of possession under
this .Lease and to collect any other suns of money and damages due tinder the terms of
[leis Lease after 'Thirty (30) days from the date of service of notice of Ussor''s election
to bring suit (which Thirty (30) day period shalt be in addition to all other cuts periods
provided under this Lease, hicluding but not limited to the Sixty (60) day time period
provided in Section 2b.I(a) above) however, notwithstanding the foregoing, the Parties
agree that the Lessee shall have the right to cure any Event of Lessee's Default with
respect to the payment of Minimum annual Rent or Percentage Rent at any time prior
to the issuance of a final judgment granting the Lessor possession of the. Subject
Property, provided that Ussee pays to the Lessor, in addition to the full amount of
Mui imu'm Annual Rent or Percentage Rent due, interest at the rate of Eighteen Percent
(18%) on such amount due for the period commencing on the date of the Event of
Default through the date of such payment, and all reasonable court costs and attorney's
fees.
(b) During the development or construction of the Leasehold Improvements,
the Leszor shall have the right, but not the obligation, to carry out or complete the
Work oil behalf of the Lessee without terminating this Lease Agreement, utilizing the
plrocexls of the payment and perforrnanc:e bonds. ,
S.ectit n 2F.3. Waivers and Surrenders to Be in nV ins;. The receipt of Rent by
the lIlAssor, siith. knowledge of any breach of this Uase Agreement by the Lessee or of
any default on the part of the i essree in the observance or performance of any of the
conditions, agree!nents or covenants of this Lease Agreement, shall not be deemed to
be Paz wrdv,.r of aray provision of this Lease Agreement. Notwithstanding the foregoing,
Lessor must advise Lessee forthwith in writing of any breach of this Lease Agreement
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which Lessor has knowledge of. 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
ender it by the Lessor, tmless in writing, shall discharge or invalidate such covenant or
prevision or affect the right of the Lessor to enforce it in the event of any subsequent
breach or default. No covenant or candition of this Lease Agreement shall be deemed
to have boen waived, by the Wsor unless the waiver be in writing, signed by the City
tdanaraagrx or the Ussor'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 utter to which the consent is given and shall not relieve the Lessee from the
obligation, wherr.ver mquired under, this Lease Agreement, to obtainthe consent of the
Lessor to aq other act or matter. The receipt by the Lessor of any Kent or any other
swa of money or any ,other consideration paid by the ;Lessee after the entry of a
judgment gmntinr;g possession of the Subject P'rcpperty to the Lessor, shall not reinstate,
cone or extend the Lease Term demised unless so agreed to in writing and signed
by the City hIa nager.and Lessee.
. Section 26.4,, (tights of Leasehold Mort�Upoan Lessee's Default. All of
Wsor'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
Mortgageas.
Iotn 26.5. Events of Default - Lessor.
(a) Events of Lessor's Default. The failure of the Lessor to perform any of
the codaPAMZ, conditions acid agreements of this Lease which are to be performed by
th - a.em r and the contiaustnee of such failure for a period of Sixty (60) days Rfter
notice themof in writing from Lessee to the City (whdclr notice shall specify the,
inspects in which Ussee contends that the City has failed to perform any of such
covenaws, c4 nditions and agreements), and unless such default be one which cannot be
cure,: wichit>1 Sixty (60) days and. the Lessor within such Sixty (60) day period shall
have comnwco,�d- tend thereafter shall continue diligently to prosecute all actions
rmemy to; cuz~e such defaults, such failure shall constitute an "Event of the Lessor's
Defaults'.
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(b) Remedies for City's Default. If an Event of the Lessor's Default shall
occur, Lessee, may treat any one or more of the Event(s) of Lessor's Default as a
breach of this Lease .Agreement, and thereupon at its option, by serving written notice
on the I.,essor, the Lessor shall have, in addition to every other right or remedy existing
at law or equity, subject to: (i) compliance with all applicable laws; (ii) the grace
periods and carts periods set forth within this Lease, and (iii) subject to the
requiremcnts pertaining to arbitration as set forth in Article 17 of this Lease, one or
more of the following comedies:
(i) the right and option to terminate this Lease and all of its obligations
bereund, er;
(H) 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 it91, 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 r4pmneatatives be personally liable for any of the City's obligations to Lessee
(iii) the right to obtain damages resulting from such default.
ARTICLE
LWALIYaI' Y OF PARTICULAR PROVISIONS
,motion 27,1., Invalidity- of Provisions. If any provision of this La�a�ase or the
application of it to any Person or circumstances shall to any extentbe invalid or
unertfan;eable, 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
unnfarc41e, shall not be affected, and each provision of this Lease Agreement shall
be valid and be enforced to the fullest extent permitted by law.
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ARTICLE XXVIII
QUIET ENJOYMENT
Saction 28.1. Quiet Enn oyinent. 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 tinier the Lessor.
ARTICLE X=
LFUSSOR'S TITLE AND LIEN
Section 29.1. Title of Leased Property. The Lessor covenants and warrants
that, subject to the restrictions set forth in the Deed from the State of Florida and any
condiddns pertaining to any waivers thereof which restrictions and conditions are set
forth in Exhibit 66F", Lessor has full right and authority to enter into this Lease for the
Lease Term. Lessor shall deliver to counsel for Lessee within Thirty (30) days of the
Lease Date. an Abstract of Title prepared or brought current by a reputable abstract
Pam purporting to be an accurate synopsis of the instruments affecting the title to
Subject Property recorded in the public records of Dade County through the Lease
Date;, An abstract shall commence with the earliest public records, or such later date
as way be customary in Dade County. Lessor shall demise and lease to Lessee a good
and marketable title in accordance with Title Standards adopted from time to time by :
the Florida Bar, subject only to liens, encumbrances, exceptions or quaiificatiams as;
may be, approved by Lessee. Lessee shall have Thirty (30) days from date of
receiving evidence of title to examine same. If title is found defective, Lessee shall
notify Lessor in writing specifying defect(s). If said defect(s) render title
uwnarkiw,table, Lessor shall have One Hundred Twenty (120) days from receipt of
notice within which to remove said defect(s), and if Lessor is unsuccessful in removing
them vfvithin said time, Lessee shall have the option of either (1) accepting the title as it
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then is, or. (2) derrtanding a refund of all costs of preparing and submitting the Proposal
which shall forthwith be paid to Lessee, and thereupon Lessee and Lessor shall be
released as to one another, of all further obligations under this Lease; however, Lessor
agrees that it will, if title is found to be tin,-narketable, use diligent. efforts to correct the
defect(s) in title; within the tame provided therefor, including the bringing of necessary
suits. Lasser. may at its option extend the time for clearing defects for a reasonable
period of time, -
From and atft r the '%ease Date, Lessor shall take no action which would impair
or otherw?Lse affect, title to any portion of the Subject Property, and shall record no
documents in the Public records which would affect title to the Subject Property,
without the prior written consent of Lessee.
The Lessor agrees it shall demise and lease to the Lessee at the time of
execution of this Lease Agreement the Subject property with good marketable,
merchantable and insurable title, and with all of the singtdar tenements, hereditaments,
easemev�i, privileges, riparian or littoral rights benefiting the Subject Property, and
tppurtenam--s thereupto belonging, including, without limitation, water and canal
rights or . other rights (hereinafter collectively referred to as rights) which may have
been dequired by Lessor in and to any of the foregoing in the period commencing and
includi�sv the respective dates Lessor acquired such rights and extending to and
including .the 1,ease Date. Notwithstanding the provisions of the previous sentence.,
should any title defects) rendering title unmarketable not be removed as set forth
hereinafter, then the time pefiod set for Possession by Lessee shall be ended until
such time as the defect(s) are cured. The Lessee at its option may have the property
surveyed by a certified licensed surveyor at its expense, which survey shall be dated
subsequent to this Lease. In the event that the survey reflects that any of the
representations and warranties set forth in this Lease are not true and correct and /or
that there are encroachments onto the Subject Property, then in the event of the
foregoing, said survey report shall be treated in the same planner as a representation
and title exception.
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Sxtion 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 Improvemients, and./or the Leasehold Improvements other then by this
Um Agreement. The fee simple estate of the Lessor in the Subject Property and the
residual interest of the Lessor its the Leasehold Improvements shall not be in any way
subject to any claim by way of lien or othemL%e, whether clairned by operation of law
or by virtue or any express or implied lease or contract or other instrument made by
the Less and any claim to the lien or otherwise upon the Subjea Propetty or in the
Leasehold Inaprovemicnts arising from any act or omission of the Lessee shall acerae
only against the Lessee's Leas hold Estate and the Lessee's interest in the Leasehold
Improve rents.
ARTICLE
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ARTICLE XI I
LI ITTATION OF LIAREMY
Section 31.1 LimiWdon of Lbility of Lessee. It is expressly understood and
agreed by and between the Parties, anything herein to the contrary notwithstanding,
that each and all. of the representations, covenants, undertakings and agreements herein
made on the part of the Lessee while in form purporting to be the representations,
covenams, YxWertalcirngs and agreements of the Lessee are nevertheless, each and every
one of that, made and intended not as personal representations, covenants, ;
undertakings and agreements by the Officers, Directors and Stockholders of the Lessee`,
or for the purpose or with the intention of binding the Lessee's Officers, Directors and
Stc-kholders personally; but are made and intended for the purpose of binding the
Leasehold g ate. No personal liability or personal responsibility is assumed by nor
shall at any time be asserted or enforceable against the Stockholder, Officers, and
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Directors of Lessee on account of this Lease or on account of any representation,
covenant, undertaking or agreement of the Lessee in this Lease.
ARTICLE XXXII
ESTOPPEL, CERTIFICATES
Section 32.1. Estop,I�eI Certificates. The Lessor and the Lessee each agree at
any 6me and from time to time, so long as this Lease shall remain in effect, upon not
less tta Ten (10) days prior written request by the other party, to execute,
acknowledge and deliver to the other party a statement in ,writing certifying that this
Leme 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 Ream and other charges have been paid an advance, if any. and stating
whether any default under the teens of this Lease is known by, or any notice of default
Ms 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 Lmsor's fee shriple interest in the Subject Property or of the L.emsor's remainder
intermt in the Leasehold Improvements 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 Estate or by a Subtenant of
all or any ,pant of the Leasehold Improvement,. or the Subject Property, as the case may
If ARTICLE XX=
REMEDIES CUMULATIVE
Section 33.1. Rerrtedies 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 additionto every other remedy givenunder this Lease
Ag=ment or existing at law or in equity or by statute; and every power and remedy
given by this Lease Agreementto the Lessor or the Lessee may be exercised from tune
to time and as often as occasion may arise, or as may be deemed expedient by the
LeAsoar or the Lessee. No delay or omission of Lessor or Lessee to exercise any right
�� 96— 671
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. The rights of the
i
i Lessor under this Lase shall be cumulative and the failure on the part of the Lessor to
exm..ise properly any rights given hereunder shall not operate to forfeit any of the said
t rights.
Section 33.2. Waiver of Remedies Not To Be inferred. No waiver of any
breach of any of they 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
cousent to any further or succeeding breach of the same or similar covenant or
condition.
ARTICLE 1V
SURRENDER AND HOLDING OVER
Section 34.1. Surrender at End of Term. On the last day of the Lease Term
the Lessee shall peaceably and quietly leave, surrender and deliver'the entire Subject
a Property to the Lessor, together with the Leasehold Improvements and all alterations,
changes, additions and other improvements made upon the; Subject Property, and
together with any and all improvements, furniture, trade fixtures, machimry,
a equipment or other personal property of any kind or mature, which the Lessee may
have installed or affixed to the Subject 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 f'ixturcs), in
their "as is" condition, free and clear of any and a.11 Leasehold Mortgages, liens,
encumbrances and claims. At the time of the surrender, the Lessee shall also surrender,.
arty and all sex unity deposits and rent advances of Sublessm's made pursuant to Article
XXXV. L` the Subject Property and the Leasehold Improvements are not so
surrendered' the, Lessec shall repay the Lessor for all expenses vehich the Lessor studl
j 11WAer by r�mn of it, and in addition the Lessee shall indemnify, defend wA hold
ltarmle*s the lessor frown and against all claims inade by any sooting Lessee against
i
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96- 671
the Lessor, founded upon delay occasioned by the failure of the Lessee to surrender the
Subject Property and the Leasehold Improvements.
Section 34.2. Rijahts 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 aW,
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 swn per day equal to Two Hundred (1, 00) percent.
tkfts 11365th of tine aggregate of the Rent paid or payable to Lessor for the prior Lease
Year as set 'forth in Article V.
'Me pirvisions 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, sutra, or any rather act in apparent affirmance of the tenancy, operate as a waiver of
the right; to terminate this Lease Agreement and the terra granted for the period still
unexpired for any breach of the Lessee under this Lease Agreement.
ARTICLE
SUBLEASES
,Wtion 35.1, Subleasing. Lessee shall have the right, from time to time
during the Lease Term, to enter into a Sublease(s), subject to: i) the terms and
conditions of the Sublease shall be subject to and subordinate to this Lease; i►) the tern
of the Sublease sW1 be for a _period of time less than the Lease Term; and iii) at the
commencement of each Lease Year, Lessee shall deliver to Lessor a current list of all
Subtenants. If requested by Lessor, Lessee shall provide to Lessor copies of all
Siab'leases and ,amendments thereto.
Section 35.2 Noondistufbance and Attornment. On Lessee's request, Lessor
shall enter into appropriate agreement: with Lessee's Subtenants granting assurances
that sw;la Subtenants will not be evicted by Lessor on termination of this Lease for
Lemssee's default, provided:
(i) the Subtenant is not in default under its Sublease from Lessee; and
100
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96- 671
(ii) the Subtenant has not paid Lessee more than Three (3) months Dent in
advance of the then current month; and
(iii) the Subtenant is paying such rentals under its Sublease as is comparable
with rentals payable by other Subtenants in the Subject Property for
comparable spare 'r by lessees of comparable facilities; and
(iv) Lite Ussoor's aweptance. of such tenancy shall not impose any obligations
on the Lesser which are more onerous than those imposed upon it under the
provisions of the Lease, or deprive the Lessor of any of its rights under the
provisions of the Lease; and
(v) the terms of the Sublease shall not effect any reduction in Lessees'
obligations (with respect to the portion of the Subject Property demised to
the Subtenant under the Sublease) with respect to the payment of Rent,
impositions, insurance, repairs, and restoration of damage;
(v) the Subtenant agrees that in the event the Lease is terminated, Subtenant
shall attorn to the Lessor.
ARTICLE XXXVI
FINANCIAL STATEMENTS
Section 36.1. financial Statements. Within One Hundred and Twenty (120)
days after the end of each calendar year, the Lessee shall throughout the Lease Term
subtuit to, the Lessor a copy of an unaudited financial statement of Lessee as prepared
by a Cerdfied. Public Accountant. ,
ARTICLE, XJCMI
iVfld DEDICATION
Section 37.1.. Modification. None of the covenant;, terms or conditions of this
Lease in,.gmement to Ix. kept and performed by either party to this Lease Agreement
s110, in any manner be waived, modified, changed or abandoned except by a written
iastrament duly signed, acknowledged ,and delivered by both Lessor and Lessee.
101
96- 671
W
I
ARTICLE XXXVIII
CONVEYANCE BY LESSEE TO LESSOR
motion 38.1. Conveyance by U,,ssee to Lessor. Effective upon the, termination
of Ws Lean Agreement, whether by passage of time or otherwise, the 1.4sssee, in
consideration of ft granting of this Lease Agreement by the Lessor to the Wsee,
grits ad conveys unto the Lessor and Lessors legal representatives and assigns
forever all of Lessee's right, title and interest in the beasehold Improvements.
ARTICLE X3=
APPLICkBLE LAW
Section 39.1. pticable Law. This Lease Agreemej,a shall be construed and
egorced in accordance with the laws of the State of Florida
ARTICLE XL
NOTICES
,xtiqn 40.1. Manner of Mailing Notices. In every case where under any of
the provisions of this Lease Agreement or otherwise it shall or rwy become'necessary
or desirable to make or give any declaration or notice of any kind to the Lessor or the
Lessee, it shall be sufficient if a COPY of any declaration or notice is sent by United
States certified or registered mail, postage prepaid, return receipt requested,
addressed:
if to Wsor at: City Manager
City of Miami, Florida
3500 Pan American Drive
Miami, FL 33133
Frith a copy to: City of Miami
Officc of Asset Management
444 SW 2 Avenue, Suite 325
Miami, FL 33130
96- 671,
A
Additionally, during the time of construction of the leasehold Improvements, Lessee
small send a copy to:
City of Miami
Community Planning and Revitalization
444 SW 2 Avenue, and floor
Miami, FL 33130
and if to Lessee, at: Dr. Bern Levine
Parrot Jungle & Gardens, Inc.
11000 S.W. 57th Avenue
Mimxti, FL 33136
with a copy to: M. Ronald Krongold, Esq.
201 Alhambra Circle, gth Floor
Coral Gables, Fi,- 33134
Each party from time to time may change its address for purposes of receiving
declarations or notices by giving notice of the changed address, to become effective ten
days following the giving of notice.
Section 40.2. Notice to Leasehold Mortgagees. All notices, demands or
rcgkwsts which may be required to be given by the Lessor or the Lessee to any
Leasehold Mortgagee shall be sent in writing, by United States registered or certified
mail, postage prepaid, addressed to the Leasehold Mortgagee at a place as the
Leaseha�ld Mortgagee may from time to time designate in a written notice to the
Lessor and Lessee. Copies of all notices shall sinultaneousjy be sent to the other of
the. €.pessor or the .Lessee, as the case may be.
Scec:tion 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
,Pi1w,n mgistered or certified notice is placed in the U.S. Post Off►c a nail as provided
by this Article and shall be deemed received. on the Wrd business day thereafter and
for all purposes u Jer this Lease Agreement of starting any time period after notice,
the time period shall be conclusively deemed to have commenced three business days
103
�'�' 671
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.
ARTICLE %LI
MISCELLANEOUS )PROVISIONS
Section 41.1. gaptions. The captions of this ''W,- se Agreement and the index
pitotding it are for convenience and reference only and in no way defcne, limit or
dmribc 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
ag=ment between the Parties and shall not be modified in any manner except by an
imstrument in waiting executed by the Parties or their respective successors or assigns
in interest.
Section 41.4 Time�of Essence as to Covenants of Lease Aggement.Time is
of the essence as to the covenants in this Lease.
Section 41.5. recording, Docurnenta, 4ztamps. This Lease Agreement, or a
memorandum hereof in form mutually satisfactory to the parties, shall be recorded
arma% 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 Hof Florida documentary stamps which legally must be attache4 to any or all o�
said papers, and the cost of the applicable Dade County and State transfer tax shall be
paid in full by Lessee.
104
:-- 671
r;
ARTICLE XLII
MINORITY AND 'WOMEN PARTICIPATION AND,
DUAL EMPLOYMENT OPPORTUNIMS
Sections 42.1 Minority and Women Partici ation. The Lessee agrees during
construction and operation of the Leasehold Improvements; (a) it will take reasonable
affirmative action in the recruitment and recruitment advertising to attract and retain
qualified minority and female contractors and subcontractors.; (b) provide a reasonable
opportunity in the recruitment, revr'.�itn:�t auiiczliai[cg and hiring for contractors and
subcontractors residing within the City of Miami; (c) will take reasonable affirmative
action to retain employees regardless of race, color, place or birth, religion, national
origin, :sex, age, marital status, veteran and disability status; (d) maintain equitable
principles'' in the recruitment, recruitment advertising, hiring, upgrading transfer,
layoff, termination, compensation and all other terms, conditions and privileges of
employment; and (e) monitor and review personnel practices to guarantee that equal
opportunities are being provided to all employees, regardless of race, color, place of
birth, religion, national origin, sex, age, marital status, veteran and disability status.
Section 42.2 Equal Employment Opportunities. The Lessee agrees that
,duting construction of the Leasehold Improvements: (a) it will not discriminate against
any en4iloyee 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 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 tar
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,
cr°, 1, 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
105
96- 671
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.
ARTICLE 7!tL111
COVENANTS TO BIND AND BENEFIT RESPECTIVE
PARTWS AND TO RUN WITH TIFF SLWECT PROPERTY
Section 43.1. Covenants to Run with the Subect arty. All covenants,
agreements conditions and undertal ings in this Lease Agreement shall extend and inure
to the benefit of and, be Minding upon the successors and assigns of each of the, Parties,
its: 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.
NNFherever hi this Lease Agreement reference is made to any of the Parties, it shall be
held toil include and apply to, wherever applicable, .also the officers, directors,
s% ,sors and assigns of each party, the same as if in each and every case so
expressed.
ARTICLE XL1rV
UNAVOIDABLE DELAY
Section 44.1 Unavoidable Delayer For the purpose of any of the provisions
of this Lme (except the payment of Minimum Annual Rent or Percentage Rent),
neetiter the Lessor (including the City Manager) nor the Lessee, as the case may be, nor
any successor w interest, shall be considered in breach of or in default of any
obiigations under this Lease, including but not limited w the preparation of the Subject
Property for development, the performmnee of the conditions precedent to Lessee tatting
Possmsion of the Subject Property, the commencement and completion of construction
of, the Leasehold hnprovemerts, or progress in respect thereto in the event of an
UmvQi+deble, Delay(s), in accordance with the provision, of Section. 45.2 below.
106
g6-- 67
Section 4 4.2 Manner of _Notice of Unavoidable Bela s and Conditions With
1, t to Performance oir Qbl ations. In the event of an Unavoidable Delay(s), the
tin for performance of obligations, coveiunts, and/or agreements which are affected
by the Unavoidable Delay(s) shall be extended for the period of time of the
Unavoidable Delay(s) or for such period of time as may be nm&ssary under the
cireamtances, provided that the Party seeking the bentfet of the provisions of this
Section shall:
(i) As soon as reasonably possible, but no later than Thirty (30) days after such
Party shall have become aware of the Unavoidable Delay(s), give notice, in
writing, to the other .Party of the Unavoidable Dielay(s), which no fice shalt
specify which of the obligations, covenants, and/or agreements of this Lease
the notifying Party is unable to perform at the time of such notice and how
the Unavoidable Delay(s) has affected. the Party's performance of such
obligations, covenants, and/or agreements;
(ii) As soon as reasonably possible, the Party claiming such Unavoidable
Delay(s) shall commence and shall continue diligently the performance of
such obligations, covenants, and/or agreemcntc so delayed.
Section 44.3 Patent of Minimum Annual Rent and/or Percentage Rent in the
Event of, an Unavoidable Delay. Notwithstanding the foregoing, the Parties agree that
Lessee's obligations with respect to the payment of Minimum Annual Rent and/or
Percentage Rent shall in no .event be abated, however the Lessee may, at Lessee's
option dekr the payment of Minimum Annual Rent and/or Percentage Rent (provided
ail stints so delayed shall be paid by Lessee within Twenty -Four (24) months of the
dry that the business is reopened) due to an Unavoidable Belay, but only if such
Unavoidable Delay insults in Lessee's business at the Subject Property being closed to
the public for more than Seven (7) days. In the event that there is insurance proceeds
paid in connection with the Unavoidable Belay with respect to the Minimum Annual
Rent and/or Percentage Rent, and if such proceeds are less than the total Minimum
107 96— 671
I
Animat Rent and/or Pettentage Tent due, then the difference may be deferred as
provided above.
ARTICLE XLV
GENERAL PROVISION,
Section 45.1. Conflict of Interest, No member, official, or employee of the
W-sor shall have any pei—sonal interest, direct or indirect, in this Lease Agroement, nor
shall any member, offici3.,.1, or ployee participate in any decision relating to this
Lease Agreement which affects his or her personal i aere ,ts or the interests of any
other entity or Person in which he or she is, directly or indimctiy, interested. No
member, ,official, or employee of the Lessor shad be personally liable to the Lessee, its
sumessors and assigns, or anyaae claiming by, through or under the Lessee or any
sussor 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
dc terms of this Lease.Agreement.
Section 45.2. grokerrne. The Lessee and the Ussor each ru�re::ent and
w,wrdnt to the other that neither has dealt with any broker or finder in connection with
" the trww, ctions 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,
neasoatable awrmys fees and expenses, incurred by the other party and arising out of
an)clabn by any broker orfinder if it is ultimately determined that eid-wr party has
dealt in contravention of its representation and warranty.
Section 45.3. Assi ifitv and, Bindui _Mete. Subject to all provisions,
re�;pecjing the rights of assignment or Subleasing, this Lease Agreement shall be
I,
binding upon and inure to the benefit of the respective successors and assigns of the
patties' hereto.
Section 45.4. Duplicate, Originals. This Lease Agreement may be executed in
any nvmNrr of copies, each of which shall constitute an original of this Lease
Agreewwht. 'l'h p warranties, representations, agreements and undertakings shall .not be
108
96 - 671
deerned to have been made for the benefit of any Person or entity, other than the
r"'W ties .
Section 45.5 Authoriity.
(a) 'Me Lessor and Lessee represent to each other as follows:
(i) That each has, and has exercised, the applicable Legal
Requimments ssary to adopt, execute and deliver this Lease Agreement and
pmform its obligations; and
(ii) That this Lease Agreement has been duly executed and delivered
by each and comtitutes a valid and minding obligation of each enforceable in
accordance with its teams, conditions, and provisions; and
(b) Lessor specifically represents that the execution and delivery of this
Uase Agreement has been duly authorized and is in accordance with and pursuant to
all Applicable Laws (including without limitation those of the Lessor) and the
Omstitution of the State of Florida.
Section 45.6 Waiver of Jury 'Trial. The Parties hereto agree to waive: any and
all rights vo a. Imy trial for the resolution of any disputed matters which may arise in
correcdon with this Lease.
Section 45.7 Attornev'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 in owed the prevailing party, shall be paid by the -
non jprtvailing party.
u .
1
109
96~ 671
1
In witness, the Lessor has caused this Lease Agreement to be executed in its
natne and on its behalf by the City Manager of the City of Miami, Florida the City
Clerk of die City of Miami, Florida, and the Lessee has signed as of the slate and year
First above written.
ATTEST:
CITY OF ham, a municipal corporation
of the State of Florida
By.
Katy Clerk � City Manager
Print Nam' Print Name
STATE OF FLORIDA )
COUNTY OF DADE )
i The foregoing instrument was acknowledged before me this day of
1996, by of the City oMiami, a
*I ipal corporaation of the State of lorida, on lialf of corporation. He/she is
personally known to me or has produced as
identification and who did (did not) take an oath.
i
NoyPUER Stgnataure
flat y
C MMiss off.
API'RO VI D AS TO INSURANCE APPROVED AS TO FOIlvI AND
REQUIREMENTS: CORRECTNESS:
By: ,
City Attorney
Paint Nam Prink Name
i
110
96— 67
PARROT JUNGLE & GARDENS, INC.,
ATTEST: a Florida Corporation
By: By:
Print Nam Print Name
STATE OF FLORIDA
COUNTY OF DADS
The foregoing,; instrument was acknowledged before me this day of
1996- by President o Parrot
17 and Gkilens, Inc., a corpoi0lon of the State of Florida, on behalf of the
corporation. lie/she is personally known to me or has produced
as identification and who did (did not) take an oath.
NOLTY PWIC
Nme of otary
commiss
671
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„ CITY OF MIAMI WATS!.AND
FOR
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FLORIDA. 33155
96—
MIBIT B — SURVEY OF SUBJECT PROPERTY
EXHIBIT C LEGAL DESCRIPTION OF SUBJECT PROPERTY
Botanical Gardens
COMMENCE AT A POINT KNOWN AS P. T. STATION 25+50 OF THE OFFICIAL. MAP OF
LOCATION AND SURVEY OF A PORTION OF SECTION 8706, DESIGNATED AS A PART OF
STATE ROAD A -I -A IN DA'DE COUNTY, FLORIDA AS RECORDED IN PLAT BOOK 56 AT
PAGE 71 OF THE PUBLIC RECORDS OF DADE COUNTY, RL C9R.IDA, SAID POINT BEING THE
POINT OF TANGENCY OF THE CM4TERLINE OF THE MOST NORnlERL'.' CURVE OF
GENERAL DOUGLAS MACARTHUR CAUSEWAY, RUNNING SOUTIIEASTWARDLY FROM
THE NORTHWESTERLY CORNER OF WATSON ISLAND AND HAVING A RADIUS OF 1432.69
FEET' AND A CENT3tAL ANGLE OF 62" W'00"; THENCE RUN NORTH 60'52'45" EAST, .ALONG
THE NORTHEASTERLY PROLONGATION OF THE :RADIAL LINE OF THE ABOVE
MISt TIONED CURVE FOR A DISTANCE OF 670.74 FEET TO THE POWF OF BEGINNING OF
711E PARCEL TO BE DESCRIBED, (SAID POINT BEING ALSO THE POINT OF BEGINNING OF
LEASE AREA 1 MIAMI YACHT CLUB; THENCE SOUTH. 09°52'53" EAST, ALONG THE
SOUTHWESTERLY' LINE OF SAID LEASE AREA. I AND ITS SOUTHEASTERLY EXTIENSiON,
FOR 857.30 FEET; THENCE SOUTH W52'45" WEST, FOR 223.24 FEET TO ITS INTERSECTION
Wff, I A LINE PARALLEL AND 100 FEET NORTHEASTERLY OF TILE MOST NORTHERLY
RIGHT OF WAY LINE OF SAID MACARTHUR CAUSEWAY'"; THENCE NMRTH 29*07' 15" WEST,
PARALLEL TO SAID RIGHT OF WAY FOR 1100.97 FEET TO A POINT OF TANGENCY;' A
niENCE ALONG A TANGENTIAL CURVE CONCAVE TO THE SOUTHWEST HAVING A
RADIUS OF 800.00 FEET, A CENTRAL ANGLE 25016'16" FOR AN ARC DISTANCE OF 352.85
FEET; THENCE SOUTH 90000'00'° WEST FOR 94.95 FEET TO ITS INTERSECTION WrM THE
NORTHERLY RIGHT OF WAY LINE OF SAID MACARTHUR CAUSEWAY AND A CIRCUI AR
CURVE CONCAVE TO THE SOUTHWEST, SAID POINT BEARS SOUTH 41051152" WEST FROM
M CENTER; B THENCE ALONG SAID CURVE HAVING FOR ITS ELEMENTS A RADIUS OF
1090.64 FEET, A CENTRAL ANGLE OF 6047'18" FOR AN ARC DISTANCE OF 129.22 FEET TO A
K,WIT OF COMPOUND CURVATURE; C THENCE ALONG A. COMPOUND CURVE CONCAVE
TO TIM SOUTHWEST HAVING FOR ITS EI..EMENTi A RADIUS OF 1441.25 FEET, A CENTRAL
ANGLE OF 20P27"49" FOR AN ARC DISTANCE OF 514.75 FEET; D THENCE NORTH 34°54'16"
EAST 'FOR 333.29 FEET; THENCE SOUTH 55105'44" EAST, FOR 726.47 FEET TO ITS
INTMECTIO14 WTTH T'HE APPROXIMATE SHORELINE OF BISCAY'NE BAY; THENCE
CONTINM ALONG SAID SHORELINE FOR THE FOLLOWDIG EIG)iTI' COURSES: (1) SOLTITI
8n1'37" EAST FOR 63.38 FEET; (2) THENCE SOUTH 86009134" EAST FOR 68.47 FEET; (3) `
TI-04CE SOUTH 82033121" EAST FOR 131.22 FEET; (4) HENCE SOUTH 72°18'34" EAST FOR
87.21 FEET; (5) THENCE SOUTH 69029102" EAST FOR 102.34 FEET; (6) THENCE SOUTH
6ri?24" EAST FOR 82.52 FEET; (7) THENCE SOUTH 69°05'26" EAST FOR 94.62 FEET; (8)
THIENCE NORTH 80040"44" EAST FOR 46.77 FEET TO ITS IN F.%SECTION WITH THE
SOUTHWESTEIRLY LINE OF SAID LEASE AREA 1; THENCE SOUTH 08*07'15" EAST ALONG
SAID LINE FOR 299.12 FEET TO THE POINT OF BEGINNING AND THERE TERMINAT NG.
CONTAINING 18.6134 ACRES MORE OR LESS (INCLUDES 2.5025 ACRES MORE OR LESS OF
SUBINAFd,RO13D LANDS)
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eOOKJ:CjU (AG[45 C '
h INTZRNAL IMPROVE IFNIT FUND STATE: OF F AIDA
Drm N0.-
q KNOW- ALL MEN BY THs8SH PRESENTS s That the undersigned, the
•'Ti ataes of the Internal Improvement Pond ,of the state. 'of Florida,
under and vir. tue ..or the authority or Section 253e1t, Florida
sffia u4:e�e,': 04ij and'aocordinS to the jprevi;sioas prorLded• for in `
seotia�ta 253.3u3, Pioridi Statutes, •1 1, sui11 .for and in obnside�ri-
tiou' of ..the sum of: Teri and. 00/"100 �Dollkrs' and oUier good and '.
i xaluable. +consideratldnes to thew in hand pni.d by A 'OP MiAH1, .
Dade Coutae.�r,' P'].orida, 'resoe�pt 'or which is hereby acknowledged,
have ,granted, barga nod, sold and conveyed to the sii.d CITY OP
tiIALtZ and Its successors and assigns forever, the followinS de- `
e soribed land*, to -wit- - !
Beg1pni" at the !point of intersection of the
ftifterly production, of the Caner Line 'of Riohmers
Street .(now known-%s K. B. 13th Street) as shown on
the -Amended Plat of "1RIOMMS ADDITION" an recorded
in Plat Hook 3, Page 28 with the U. S..Barbor Lime
on the Rest wide of Biscayne . Edri thence mn North -
Bray etlong sald.U. S. Vat or Line to a point on .a
line tour hundred and fifty foot North of and parallel
to the Basterly rodaction of the sold tenter Line of
Rimkmors Street (now known as it. R. V50
th Street)
thence run Easterly along said line feet Xor6
Of Land parallel to the Basterlg produation of the
Center Line of said Rickmars Street (now known as
X, Be .13th Street) -to- the point of terseotion with
that course described in Deed Rook Wrl Paagge 3538 as
follows: "Thence in a Southeasterly d6eetion to
the Southeast corner of the southwest QA"ter of
the Southwest Quarter (SWjof aril-)` or S.e-otion 32,
wn Toship 53 Saath, Range Bastes •Thencb Sout�i-
easterly Along th8 said last described course to
the said •11cwtheast corner of the SWJ of 8VJ of
Section 32, Township 53 South, Range 42 $anti Thence ;
run South along then West lice Of the RE}. of NR} of
Section 5, Township 54 South, Ranga 42 East to. a
point oighty Peet northerly from and measured at
right angles to the Center Line of the Mind Buht-
oipal Channel; Thence run Southeasterly follow
that course *described in Deed Book �, 7,?., page 7
,as follow as NCcxsseneing at 'the intersection o he
West Line of theNS* or Np;. of section 5 Twm*hip• .
4 South, Range 42 East, and a litie ;iarUlsl to
and eighty feet Northerly 6-om, and measured at
right angles to the Center Dine of the Miami bbmi-
01i al Channel ", -to the East boundary of the West
�tA of said Saodon 51 Then$ reran South along the
Bast boundary of the !lest 3/4 of said Section 5
and -Section S, Township 54 South, Range' p East,
Ut th6 Northerly Line of the FRO Railway Company
Channel as described in aforesaid Deed Hook ih"
Page 14e4; Thence run Vaster!y along the saiQ
Northerly line of the FBC R�Llway Copan�y Channel
to the Bast line -of the VW of Saotion 8", Town-
ship q1 South, Range 42 Bast; Thence. ran Westerly
96—
3
671
7
vzow .JU ?AGfZb8
along that line described in. Chapter 13666 (No.:102)
Lags . of Plorida - •1929 as follows! "Thence westerly
!� 'to. the Inteirseotion •of the P. & O, S.3. .+Channel, nrid
the Channel extmnding from -the mouth of .the Mimi.
River- In a Southeasterly ditection" "to the ast
line of .Sectiola 7e Township 5Bout , i�a�ipie }2 Beat;'
' Thanoe • r kn -South' along -the scald Rast .lime or •8eat� an
7e 'rownahip 51} Afiuth Range ! 3 Vast- to a point 2000.
Poet -North of the South A a Wf Section 7,- �F6wnahi , .
South Ra #.42 Rast, being thmt 00int it' tho
tet�suLhation 'o the line destr bed in- Deed Boole 19000
Page 355 iParoel.'°B" as followOt "Thlonae Korlh along
the East Lino 'of said 800tions 7 hr a' distana . of''.
2000 fget,to a'pointe -Thence along the obur a do�
noribed in -Deed,Nook 900, . Page 355, as _follawar
Thence Sodt'lmrbst 2026 Pest .to a point an •'the'South ,
boun"ir of said: Seotion 700, •to a point 2000 feet
West of the Southeast -corner of said Sootion 7;
Thenop run West •iaong the Sodtli Bale of said Section.
7 and the South line -- of said Section 7 produo.ed Wist,
to the point of intbrsoation with the U. Be Harbor
Line on the West side of Biscayne Bay; thence run
Northerly -along the said U. S. harbor Line to the
point of bdgimirag.
Except therefrom the fol.lawing described BAY BOTTOM
t"D ARFA FOR DREDOXNG IN CONNECTION WITH PROPOSED
65 ACRE BURL moos. Mom.
Beginning at the point of intersection of the South-
easterly production of the Northerly side of S. It.
th Street, the elms being this Southerly line of
ghle an's Subdivision as recorded in Flat Boole �1,,
P�ge l of the•Publio Records of Dude County„ Florida#
with the U. �. .Harbor Line on the Westerly side at
W.acayne Bay; thence N,prtherly along the said U. Be
Harbor Line and the Northerly extension thereof 3800
feet$ more or less, to the point of intersection
sit% the Southerly line of Miami River Channelo as
shown and established on Sheet No. 2 of plan pro -
pared by U, (3. Engineer Office, Uoksonville, Florida,
Nov -amber 1934, showing Miami River, Fllorida, condi-
tions on 6w*'Ilatioa of Dr,odging of Chasnnel, Project;
thence NorthoaaterlT along the said Southerly pine
of Nisml River Channel and the Northadaterly pro-
duation thereof 2$00 feet to,a paint; thence Southerly
5300 .,"set, more or less, along a lime parallel to the
Southerly rodaction or the dividing line between
Township 53 South, Range 41 Bast and Township 53 ou h,
Range 14 East to tine paint of interaection with 111a
aforesaid Southeasterly production of the Northaxly
side or s. 5..3�th Street; thence Northwoaterly
2,900 feet, chore or lace, along the said South"ateriy
Production or:the Northerly side of Be E. Street
to the U, Si, Harbor Line, the point of be
to the ce
t .thereProua all land title to
ing
L r r asx p.
*hich.is in private partiea.
TO HAVE AND TO BOLD the said above moutioned and described
land and promises, and' all • the title and interest of the Trustees
therein as granted to them by Section 253,12, Florida Statutes,
1941s unto the said CITY OP' MIAMI and its successors and assigns
forever. ,
i
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BOOK31 JO PAG1 a59
is
i
i• SAVINO AND RESERVINd unto the 'Trustees of the Internal" Improve
went Fund of Florida, and their suooessors, an.: undivided three-
;rourthe interest in and title in and to .an undivided threo-fourtht
nterest.in all the phosphate, minerals and metals that -are or gay .
1:6in, oh or under t e said above describedlands •and an undivided I�halr interest in and title in and to in undivided gone -half in -
*rest in all the petroleum that is or d.ay be An or under the said
Itbbavo dosoribo4 ianQ, with the privilege to mind and dovsXop the
rtee,•
' PROVIDSO' HOWXM# sn *thi , herein to • the dOntr627 nbtwith-
tan iYi�r " t�deed"imt dived."ah 0kftted• u�Omc• ths� a safe gondition
0,tioquent t'tuit the" Grentoe herein or •>ibs intSA&i sors and assigns
hsal ,no er-sell er eotivey or leads the above-do."r1bgd-'kwA-or'
.. part thereof.4o aura -private * Vson; fiat or corjporation for,
privato use or gu ase, it being the initantioaa- oar -this ro.
ioti9p �t the sail 4ands •ahall. bu used "so1e1y- for dub ih
rpokes, inolud t.6 mutaicipal , 0ses nisi!' i dt of erwisse
PROVIDED, FU3RTIMR, anything herein to the oontrat7 notwith-
tandiM, this deed It given and granted upon the further express
owlition subsequent that the Grantee•here$z'cr its successors or
1,0318M shall not give or grant any license or permit to any pri-
"Vate,person, firm or corporation to construct or make by a" msana,
.kny islands, fills, embankments, atruoturces, buildings or other
piwilar things within or upon the above described lands or any _
Ltdaffixed
hereof for any private use or purpose, as diatinguiahed from
lic or municipal use or purpose.
It is covenanted and agreed that the above conditions subae- i
hall rum with the land and any. violation thereof ahal'1
this deed nill and void and the above described lands shall,
avant, . revort to the Grantors OA- tftim successors*
WIT 3 t OF', the Trustees of. the Internal rAproveme nt
the State of Florida kiave hereunto ambsarlbod their n, es
their teals, and have caused the seal of the „DEPART- AGRIC[lLTURE OF THE STATE OF FLOMM", to be herevaato
, at the Capitol-, in the City of Tallahassee, on this the
day of February , A. De Riateteen Hundred and
a-vJ—aaaaays
�. . • :. t '� 00 nor
•
Covtrolier /
..�•a surer
dId $EAL)
44ac.�
- . A Y brnep'
' Camr ner cr w1c; rd .
State of ROrhls, oxfity of Dade.
This instromon: vas filed for natard.tht-..,f,1LAIY of ' •
!gag �� 'lj ►4 and duly rMW
Baok..3,1.a?J....an Paet'•,iit No. Y.:w,r� .C:a
g• p• �.EATNi{tiA1A.f1
park Ciri. u Court
L
671
.. 4;•afry
i
zoA" OF TSMST119'OF THU llCMRNAjo' jMtijtC)VVUNT
TiVST rtM.OF-'*HC'9TATi-OP'r 26A,
:�A!im�Z�L ;ftdkftOp-.QV -REST I,
lk
-..(lA*6kjW 6jp
F I
ar.
IM
max' iii:iiwa, usti -46zi 'v -Ili L ;041t. %
It I
%f6rbli he iro i
WiiiAS# -sftieBOAm.O?-T&O8m0 eke N9k
cstta -agre'
- pkr: Y44xrlr offfo• rp"a % 064d - 4TO; -*ll 9 441
f
racord*d in raced BOO)C.:3130, '.Page 25T;'
and FIOL i
PAOVft� Ate, HoxtvrA, -.emything barein to the •co=rary
notwithstandinjr; tilis. dped if
eVreqz b0fiditiou tho vgantet6 :6 or
cuoCessove a ills4lai Vildl.--never 8*11 or 6*w.,iy bri*mme the
above described 1prA or,apy part, thereof to. MW private
I im'opcorporatiOn fdr bhy 'pVlvr:t6' dici blr'iKirsk;id, It,
lieftS the intention c;g thia restieLadialk "6e t.hi. dsaa: x1ands
• xha2l be. Used .061ely - f *T:jub*Y_io P, unoxer., lmcqiudiv� iufti'dipav
VUVPDsei apd ;not 'otk"rwica..' 1.PlOVIDUDt I. M7Hk!kt.'4kvythic q heroin to the vontmry
' uotvithctApdingr thts deed in glv6n and .940ed- %W"ft' the
Urther. express A=dition subseq"At that thd
6r, fts* zu6c:eiiori,;6r "ifsir'a WWI not' jivv'oi *jir"i,jhj
31come.or, Noma .to, azW private WooN fitm or =76ratl6it
to cMsirutlor- mike by any means# any -
lwlszAu.� fillgi
abb"ntO,..'stftecures, b'Aldlikp 7or
imB, . * : otheit..
rofthli% 'oe"'t04 ihlk ",te. desOCIbOd AMMAV or. fw-poi6t:thpptof
9"m: bray- - ?my irlTvp
public or.wuni;6ij. I
d: and a*g!.. •'tit, riiq'*iAh the .190. and, my - bldt-Lok� .. ibreoic
"+h&2:1. - tfille deia vW11. &d vUd Aft%Uor
96 671
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s �Sbi :'A'�aCtsch ,liQje to :}a�tttnteae-0-,Paatt 'fieir�eb �,at s roc: XA
'' 'Ge da: �;r ZiiC:.•'.et YOi Yde� i k •an 1w
r- •.• .i. 'vt .i!*': :'t'.. •y !r_,'•!;'7•,t;C�•��r"�'�l,i";�r�{�+
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•t• .•'MP,7<, laba+i}14;4%sYn.�iy^�t:as:+ate:�a•:RtRM1t,Gc,atilU•,,`.s7T'l�a•�l•AN'; •+�M+�+l!.i':tjft
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o$a' UL vx
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' ",Y ,+ ip.tt•ttt• ''�,' a •t'•::; r ' �:� �� R• ra a}�,rM}t`.i
Y s: ti: I+.�.I i3TtiJ., j.Li 9,•�t• ►tt,a••r vt�`IA}t•�t1�t ` i :t;
•a _ •rt^ •.�':r•:.••;�•}•'t•r; L f•t�i:•;.•,• �.ti'• .�lt; •yr; !� � Z.�°•it= t �i,4g (.
4iA dad 'cue ' _ ,Cott• • 9 t I t as •? e'• 't
r" it a�rT'`i ilr 19i: 1* U.0. y�•t1' � �:=13.:•�t':et
.. �A2 �tita,�•s1et�• 4i��tt�i�ti�aide ��•#
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tb }�',e'od�¢ ;T$��'x'1�:i0.
a�•tA
+ . �•Y cm leasee`• Csiiti �.�':sdtt• d�ec' in. B,cA�tbi a 1 ; r:6F}t�� t'siat• t}a Ali
rr fir, 'Aa.''"���':: :. .: :: • .`» - riCt'1 t ,.•}l��} rt rt;•tr'�:•; "�
'CiitdCi1si YriC:: bi" bxi 'Carporat3Ait for � bC 2i2 ►t i +`m`• • :..; :' f;
dOV+at7 eptttesft .ASE :a 'i�ot• ai aa3 �eb'd¢i1, and �t'j►i,eLrY 4tt _F04 Kin, 400 . • ,
3+1�►rXt?*.' t79i9ltj7� e $ tr's il'd�ri6r t3I ,Watson Island 01h
Chat lam •�tiC7C�b!!d �zl�
• , •,. ,, S' •f ,t4•.4 e•�t.
` fthibit,:A,'.Sttbj v : to th* -f qilqiriuq cc ilitiSoiusy t ri�at cci icits'a;.
�.. 7A9 CM..insure aud' "Azat. •tbAirICheCv4%p—f16
,�t��a'a� i
eiaas ' �a� . ; , li dYitiai a�- a3 . eaarn�to : requiisc� x?Y Tail, Ni El ea
.:.
,. :2 Th@t'{� ±` Eth � •33U�gt�C at lt�i� ��Y}ttYlir�.a 3ti1� , .Ts� ��r�. t?.,-
t11g:
"• `&�iARD Ole' TRti$'�'a8�' `�vfi cb' hava 'bey cmVleted by an iiit e�►aitdexit . :
Greif sd�eooi sq ;'i.; in:
:3 . , , : � , .C�•;:;•u�: Y' •t s • � +'' :'•+the:.
'ti,ttia,whicti'caxti�! i:i�e•giet:-lX P r
annual xat► a . j y is s :r� u ;• W, paxagraph .fair
.. ry t• ..••r•• S•, • 4..'••t'..r'' ' � � `r •r. •: f`.1, t •t A•
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Dotari�laY gasaetr3?Si '�+r►z�►,.:d��exsctian kzi" a9• 'S�rrec t+earigls
96- 671
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,i• l�j<CyfSA2 Sxt>,ibit 1\'Ct•'Lr'�i'9�O$�,ti • ,�
• 'L« t,' F i::i. • ':.'•:'', r,.rSw•. � �, Fri;{�'t'�t�r;�; t�t:a,; .
rporatiozi for tie eilb
c 6v,6lOp Brit of a ';�ptauical' gat!!�t#� , and nr►'it atttadt3t'?4 IKP� Af • ;,
pAxzot 3uisgie St �6$ ens; o ;t�e�tsoa Ze7 and on •t>ae indta , ew d • lit%
to hiblt.:A;'.`subjdei: to' •xi2 •toxlerrting' co::iditSun® ('�SVAeDlja1 Coliditl�oii$F i
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• 1: The CxTK- 4111-t-insure and' gUauranted that' , the; .*IS4 & .4060.4 �
q4 ronr ,'' U6 . ; ,.1ho" .iil permits' requiied 2yy' j;a�a' dr the
+ pX;!S�t®Q,deV31,�►`^•'�'ii�•.� .t � .r. •. ... : .:•. : .•'♦. ..r: :i�••.a. ;j �•. t•i a.
"rY~Ai rali+i%*14'
"OF T1tV8TS ii-'vAi;WfiqL%'been coW.19ted by anit j atidtr:it �}.
icCiti'ad >x $;b�ot}i�a fiaia ;ire; �Qcobd}�n�it: �#t;>i esilss,��r`prci�i id
wa,oaouut g'*an.*4dA;;3'aisegaee�s,ahicta'carti g ihe
, .•} x.ff, ♦ a;,t ♦ i.♦ y t•, .,, , T , "ram i�4 �t� • +i
.annual 'acewta�l �a�Y�atra :ire�xTe�. Jay �axayrgpb ,fans; (��j -rat; this; ,
";' agrea:mlua�• ays,• �4ea�ter•31�e� �b�ltoar•:' •,. r : , , .: s.. ; y �•; . .:
t l.} r•; •t•:.t•r .i: �; .T t• ,i 'fi. t�' .'. i.j
,1"de'described in'.2kh%bit;A:'rta ,ar'
batoeta c l' 'garden y ,ACtraC0.0n knownis, 'parrot Jungle-• e;•
96- 671
Garoons rivVItted within fiv" yat"I C-C -j.ICU q1tojuUMOtn' 'I'i
PdttL*l MOdItIcAtLon of Aftstrict.Aofts, which shall. be'verified by . h6,
.,CITY in anhuil riPoitt to the BOAV -00 Tomas until the
Ali -wake annual IPAYW "ts� to the Bomb UP "'T9(j8jj=
tor., y4pa Lr O.or as long as ,Parrot 1006b" -op tt+*Jai d docrlbid''in .xxhlb�t A*..' whiCh M.C.Lak.at
p�Bsgori of time aung"6A •the
or. - trw
-
*.*V9 pe"ant, of anwaI gross ticket sole
Paikot'41myle-& Gardens: .
b. Des percent of &nnuat 9")r"bSe ba*petvfj:jst&ur&nt' fQpd.
ftv"UQW at - Pa=Ot Aftftle & Qbiodansj and
d. *rf Oarmt of annual groon
xclow at Pa=Ldt qunile au-d*rw.
This Part1,41*,40#fiCitiOn of Restriations t97. tijo
applies
land* devaribed iv,lrlibit A and rhall not affect or niodity,t4
restriepions iuposed upon the other liwds deo'bribed in Dbea uo. 'zqc47-
which have not ireviOU82Y.' boom waived by the BOAkV Or TRvSTz#-
Zf the CITY *.refuses -or oihetvive tails to CovqI:Y with -ail . df tuv.,
Special conditions in a tmely manner *to the satisfaction of toe:
OF TRUSTRES, this Partial loodification of Restrictions shall
automatically, and without any notice of any kind, t6rminatq, age to
exist"and be null and void ab initio And the Originalieatr.46
contained in Deed lio. 2.9-447, except for those •Mhich have head
•
'iav"ily waived"by the pduvor TRusTims, swat *bs re.jvoosed on -lice
lands ilescribed in-Xghibit
This.Par.tial -modification -09. Restrictions shj(]�j booms
effective upon execution by the. parties.
96- 671.
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DNR D.IV STATE LANDS TEL :904-'922-4250 Jun 14.96 15:55 Nn .004 P'.O=
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EXHIBIT G
POSSESSION DATE CERTIFICATE
71ais Possession Dade Certificate is entered into by Lessor and Lessee pursuant to
Section 4.3 of the Lease,
1) Deftnitlons. In this certificate the following terms have the meanings given to them:
Lattscrr: City of Miami
Lesrsm: Parrot Jungle &qd Gardens, Inc.
Lem: Lease aced Development Agreement dated . 1"6
between Lessor and Lessee.
Subject Proper: As legally described in Exhibit C adtached to the Luse and
depicted in that survey identified as Exhibit D attached to the Lem.
2) Coozn don offtomion Date: Lessor and Lessee confirm that the Possession
Date of the IAA w is , Ig and the expiration date of the Initial Term is
3) Ac cepmce of the Subject Property. Lessee accepted the Subject Property on
Lessor and I.*sm have executed this Possession Date Certificate as of the dates set forth
below:
ATIT,ST. CITY OF PVIIAM, a municipal corporation of
City Clerk
ATTEST:
the State of Florida
By:
City Manager
Date
PARROT JUNGLE & GARDENS, INC.,
a Florida Corporation
By:
Print Name & Title
Date
9'6- ' 671
PAJPOSEQ LEGAL DESCI?IFTI�N FDR
JAPANE'SE GARDENS
+"
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SKETCH TO ACCOMPANY LEGAL DESCRIPTION
srnrrarofr•a ifveicr
TOP It ta9s A anfV taaeaftz
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OWN aA1x715
no• �efi? BLIF,4 b�
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no NwMs.
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1 IE
1 Cie11fr
flNT t!E oTTrtIIED � Ti: tle1L 6ElGI7R�It!!aT tEEtt Tle;
$19111011
IWlleNtf 4i L1af�4Eu�:'T7�.�IA f1g11W 7KT01Y1Ef
I10 atArlQ He17 OF 11E FigetOi IOtlet IItE
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lieu.2/pf �0i:teutt>a ��
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SIT zxlo MM seAM 111111 etnrEMo EeftkpEt >tE,a.
Inns
K -� SLTMVEY OF ICBIMUR�, I'�T�.AIviI JAPA% G�
TIIdICE PtE•E M EF1Sttsf; ri1eE t!•E r0! THE ralart•c i2 taatts
!. - sara'tar: , nsta•t. of
7& se rat;
Q Z. GATELL i". i... S. , INC.
.PROFESSIONAL SURVEYORS AND RAPPERS
i700 S,K, 57TH AVENUE SUITE N0. 219
fglANi, FLORIDA. 33155
EN
EXHIBIT