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THIRD MODIFICATION TO LEASE AND DEVELOPMENT AGREEMENT
THIS MODIFICATION TO LEASE AND DEVELOPMENT AGREEMENT
(the "Modification") is made this_ day of , 2008, between the CITY OF
MIAMI, a municipal corporation in the State of Florida, acting by and through the City
Manager (the "City Manager"), and with the approval of the City Commission of
Miami, having its offices at 3500 Pan American Drive, Miami, Florida 33133 ("Lessor"
or "City") and PARROT JUNGLE AND GARDENS OF WATSON ISLAND, INC., a
Florida corporation, f/k/a PARROT JUNGLE & GARDENS, INC., a Florida corporation,
whose principal office is located at , Miami, Florida 33156
("Lessee").
RECITALS
WHEREAS, Lessor and Lessee are parties to that certain Lease and Development
Agreement, dated as September 2, 1997, which, as amended, is referred to, herein, as the
"Lease"; and
WHEREAS, Lessee anticipates to construct a theme hotel and related retail and
entertainment on the Subject Property (the "Additional Improvements") and has
requested the Lessor to modify certain terms of the Lease as they apply to the Additional
Improvements; and
WHEREAS, Lessor is willing to modify the terms of the Lease to permit the
construction of the Additional Improvements, subject to the approval of the Additional
Improvements by the Board of Trustees of the Internal Improvement Trust Fund of the
State of Florida ("State Approval"), and subject to the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the premises, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
Lessor and Lessee, agree to be legally bound, and hereby agree as follows:
1. The above recitals are true and correct and are hereby incorporated and referenced
as if fully set forth herein. Unless otherwise indicated, all capitalized terms used
in this Modification shall have the respective meanings given them in the Lease.
2. The Lease is modified in the following respects:
A. The following definitions shall be added to Article I, Section 1.2:
"Additional Improvements" means the Leasehold Improvements
consisting of a theme hotel and related retail and entertainment, as more
particularly described in Attachment 1 hereto, to be constructed
subsequent to the date of this Modification. Except as otherwise
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specifically mentioned in the Modification, the term "Sublease" shall
include any sublease of an "Additional Improvement" and the term
"Subtenant" shall include a Subtenant of an Additional Improvement.
B. The definition of "Gross Revenue" is amended to exclude the amount of
rent paid by any sub -subtenant to its sub -sublessor. For purposes of this
definition, the term "sub -subtenant" shall mean any person or legal entity
using or occupying any part of the Subject Property or the Leasehold
Improvements under any Sublease. Accordingly, Sub -section 2.g. of the
definition Gross Revenue is amended to read as follows:
"g.
Rent paid to Lessee by Subtenants, and rent paid by sub -subtenants
to their sub -sublessors."
C. Article IV is modified to require the Lessee to design and develop the
Additional Improvements, in accordance with all applicable laws, at its
sole cost and expense. Lessee acknowledges that, with respect to the
Additional Improvements, the Lessor does not make any disclaimers or
representations, and specifically disclaims any representations and
warranties relating to the construction, use and operation of the Additional
Improvements, compliance with zoning and land use regulations and
physical condition of the Subject Property, including, but not limited to,
compliance with environmental laws. Lessor and Lessee agree to negotiate
an agreement for the development of the Additional Improvements that
will include provisions similar to those contained in Article IV, relative to
the development of the Leasehold Improvements, including the provisions
relating to security for Lessee's Construction obligations (Section 4.4),
time for commencement and completion, (Section 4.5), and manner of
construction (Section 4.6)
D. The following provision shall be added to Article V, Section 5.1(b):
(iii) Percentage Rent for the Additional Improvements shall be an
amount equal to 1 % of Gross Revenue received by the Subtenant
or, if operated by other than a Subtenant, the operator of the
Additional Improvements."
E. The following sentence shall be added to the end of Article V, Section
5.1(c):
"Each Subtenant of an Additional Improvement shall furnish similar
statements to the Lessee, as provided above, along with the applicable
rental payment for submission to Lessor by the Lessee within the
timeframes set forth in this paragraph 5.1(c)."
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F. Article VIII, Section 8.9 shall be modified to read as follows:
"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
related to such Transfer or sale, Lessee shall pay Lessor an amount equal
to Three (3%) percent of the total purchase price less the amount of
outstanding debt secured by leasehold mortgages and less the return of
Lessee's unamortized equity invested by the owner of the interest being
transferred. For purposes of this Lease, the unamortized equity shall be
defined as the equity invested by the owner of the interest being
transferred amortized on a straight-line basis over a 20 year period from
the calendar year in which it was invested, with said unamortized equity
investment accruing an annual rate of return of S%.
(b) In the event Lessee "goes public" and Lessee's interest in the
Leasehold Estate is owned by the public corporation, the Lessee shall be
responsible to pay to Lessor an amount equal to Three (3%) percent of
total consideration attributable to the initial public offering less the amount
of outstanding debt secured by leasehold mortgages and less the return of
Lessee's unamortized equity invested. For purposes of this Lease, the
unamortized equity shall be defined as the equity invested by Lessee
amortized on a straight-line basis over a 20 year period from the calendar
year in which it was invested, with said unamortized equity investment
accruing an annual rate of return of 5%."
G. The following sentence shall be added to the end of Article X, Section
10.4:
"Notwithstanding the above, in the event Lessee is granted tax abatement
by the City pursuant to an approved tax abatement program offered by the
City, no Payment in Lieu of Tax shall be due for the period of time of the
tax abatement."
H. A new Section 12.3 is hereby added to Article XII to read as follows:
"12.3 The Lessee shall require each Subtenant of an Additional
Improvement to comply with the provisions of Section 12.1 herein and to
provide to Lessee audited statements relating to the Additional
Improvements in the same manner as required in Section 12.2 above.
Upon Lessee's receipt of such audited statements, Lessee shall promptly
furnish copies thereof to Lessor."
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Article XIII, Section 13.8 shall be modified to require the Lessee to
provide such additional parking as may be required in connection with the
Additional Improvements by applicable law, including, but not limited to,
zoning requirements.
J. This Lease is modified in the following respects:
K. Article XIII, Section 13.9 - Ichimura-Miami Japanese Garden - is hereby
deleted in its entirety.
L. Lessee acknowledges that the Subject Property is subject to certain
restrictions contained in Deed No. 19447 made by the Trustees of the
Internal Improvement Fund of the State of Florida ("Trustees") to the City
dated February 24, 1949, as modified by that Partial Modification of Deed
dated August 18, 1997 as it pertains to this Lease. This Third
Modification of Deed is hereby subject to the Trustees approval of the
Additional Improvements contemplated by this modification.
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IN WITNESS WHEREOF, Lessor has caused this Modification to be executed in its
name and on its behalf by the City Manager of the City of Miami, Florida, the City Clerk
of the City of Miami, Florida, and the Lessee as signed as of the date herein first above
written.
ATTEST:
"CITY"
CITY OF MIAMI, a municipal
corporation
By:
Priscilla Thompson, City Clerk Pedro G. Hernandez, City Manager
ATTEST:
Print Name:
Title:
"LESSEE"
PARROT JUNGLE AND GARDENS OF
WATSON ISLAND, INC., a Florida
corporation
By:
Bernard M. Levine, President
Title:
Approved as to Form and Approved as to Insurance
Correctness Requirements
Julie O. Bru
City Attorney
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LeeAnn Brehm, Director
Risk Management Department