Loading...
HomeMy WebLinkAboutBack-Up DocumentsPARRoT JUNGLE LEASE AND DEVELOPMENT AGREEMENT BETWEEN THE CITY OF MIAMI, FLORIDA AND PARROT JUNGLE AND GARDENS, INC. DATED ARTICLE I Section 1.1 Section 1.2 ARTICLE II Section 2,1 Section 2.2 Section 2.3 ARTICLE III Section 3.1 ARTICLE IV Section 4,1 Section 4.2 Section 4,3 Section 4.4 Section 4,5 Section 4.6 Section 4.7 Section 4.8 ARTICLE V Section 5.1 Section 5.2 Section 5.3 Section 5.4 Section 5.5 Section 5.6 Section 5.7 Section 5.8 ARTICLE VI Section 6.1 Section 6.2 TABLE OF CONTENTS EXHIBITS AND DEFINITIONS Exhibits Defined Terms; Singular, Plural and Gender THE DEMISE The Demise The Leasehold Improvements to Become the Property of Lessor Delivery of Title to Lessor TERM Lease Term 4 4 15 15 16 16 POSSESSION OF THE SUBJECT PROPERTY AND CONSTRUCTION OF LEASEHOLD IMPROVEMENTS AND INFRASTRUCTURE IMPROVEMENTS The Leasehold Improvements 17 Lessee's Financial Obligations 18 Delivery of Possession of Subject Property 19 ("Possession Date") Additional Security for Lessee's Construction Obligations 21 Time for Commencement and Completion of Construction 24 of the Phase I Leasehold Improvements Manner of Construction of Phase I & Phase II Leasehold Improvements 24 Temporary Use of Watson Island During Construction of Leasehold Improvements 27 Sanitary Sewer System 28 RENT Amount of Rent Rent Escalation Adjustment to Minimum Annual Rent in the Event of Extension Security Deposit Place of Payment Rent to be Without Deduction Payment of Rent in Event of Loss or Damage Alternative Rent Payment Schedule MORTGAGES AND MORTGAGEES Leasehold Mortgage No Waiver of Lessee's Obligations or City's Rights 28 34 31 33 34 34 34 35 35 40 ARTICLE VII Section 7.1 Section 7.2 Section 7.3 Section 7.4 Section 7.5 ARTICLE VIII Section 8.1 Section 8.2 Section 8.3 Section 8.4 Section 8.5 Section 8.6 Section 8.7 Section 8.8 Section 8.9 ARTICLE IX Section 9.1 Section 9.2 ARTICLE X Section 10.1 Section 10.2 Section 10.3 Section 10.4 Section 10.5 ARTICLE XI Section 11.1 Section 11.2 Section 11.3 Section 11.4 Section 11.5 Section 11.6 ARTICLE XII Section 12.1 Section 12.2 ADDITIONAL CONDITIONS OF LEASE AGREEMENT AND RESTRICTIONS UPON USE OF SUBJECT PROPERTY Certain Conditions of Leasing 41 Mitigation of Impact on Adjacent Residential Areas 41 Restriction Covenants 43 Additional Conditions and Restrictions Upon Use of Subject Property 44 Signage 46 RESTRICTIONS ON AND TRANSFERS OF LESSEE'S LEASEHOLD ESTATE Representations as to Development of Project 47 Definitions 47 Transfer 48 Notice of Transfer; Information as to Shareholders 49 Criteria for Consent for Assignments and/or Purchase of Subject Property 50 Effectuation of Certain Permitted Transfers 51 Transfers of the City's Interest 52 Acceptance of Rent from Transferee 52 Participation on Sale of Lessee's Business and/or Transfer 52 EASEMENTS Easements Confirmatory Instruments PAYMENT OF TAXES, ASSESSMENTS AND OTHER IMPOSITIONS Payment of Impositions Payment of Ad Valorem Real Property Taxes Lessee's Right to Contest Impositions Payment of Ad Valorem Taxes to the City of Miami Proof of Payment INSURANCE Insurance on the Leasehold Improvements Other Insurance to be Carried Delivery of Insurance Policies Adjustment of Loss Insurer to be Approved - Premium Receipts Waiver of Subrogation RECORDS AND AUDITING Records and Sales Audit 11 53 55 55 56 56 57 58 58 60 61 62 63 63 63 64 ARTICLE XIII Section 13.1 Section 13.2 Section 13.3 Section 13.4 Section 13,5 Section 13.6 Section 13.7 Section 13.8 Section 13.9 ARTICLE XIV Section 14.1 Section 14.2 ARTICLE XV Section 15.1 Section 15.2 Section 15.3 ARTICLE XVI Section 16.1 Section 16.2 Section 16.3 Section 16.4 Section 16.5 Section 16.6 Section 16.7 Section 16.8 ARTICLE XVII Section 17.1 Section 17.2 ARTICLE XVIII Section 18.1 ARTICLE XIX Section 19.1 Section 19.2 USE OF THE SUBJECT PROPERTY AND THE LEASEHOLD IMPROVEMENTS Limited Representations by Lessor Lessee's Representations The Leasehold Improvements to be Open to Public Compliance with Laws Right to Contest Compliance Use of the Subject Property Parking Future Parking Requirements Ichimura-Miami Japanese Garden REPAIRS, MAINTENANCE AND IMPROVEMENTS Repair of the Leasehold Improvements Alteration of Exterior Improvements LESSOR'S RIGHTS TO PERFORM LESSEE'S COVENANTS; REIMBURSEMENT OF LESSOR FOR AMOUNTS SO EXPENDED Performance of Lessee's Covenants to Pay Money Lessor's Right to Cure Lessee's Default Reimbursement of Lessor and Lessee DAMAGE OR DESTRUCTION Definitions Lessee's Duty to Repair, Restore or Replace the Leasehold Improvements After Damage Performance of Restoration Work No Right to Terminate Lessee's Right to Terminate in Last Five Years Payment for Construction of the Restoration Work Collection of Insurance Proceeds Unused Insurance Proceeds and Deposits ARBITRATION Arbitration Procedures MECHANICS LIENS Discharge of Mechanics Liens COVENANT AGAINST WASTE AND INSPECTION Waste Inspection of Subject Property 66 69 69 69 70 70 70 70 71 71 72 73 73 74 74 75 76 76 77 77 77 77 78 78 81 83 83 ARTICLE XX Section 20.1 Section 20.2 Section 20.3 Section 20.4 Section 20.5 Section 20.6 Section 20.7 Section 20.8 Section 20.9 Section 20.10 ARTICLE XXI Section 21.1 Section 21.2 ARTICLE XXII Section 22.1 ARTICLE XXIII Section 23.1 ARTICLE XXIV Section 24.1 ARTICLE XXV Section 25.1 Section 25.2 Section 25.3 Section 25.4 Section 25.5 Section 25.6 Section 25.7 ARTICLE XXVI Section 26.1 Section 26.2 Section 26.3 Section 26.4 Section 26.5 Section 26.6 ENVIRONMENTAL LIABILITY Definition of Terms Environmental Warranty of Lessee Investigation of Environmental Condition of the Subject Property Lessor's Representations and Warranties Allocation of Financial Responsibility for Cleanup of Existing Contamination Lessee's Liability for Contamination During Term of Agreement Lessor's Liability for Contamination During Lease Term Indemnity Phase I Environmental Assessment at End of Lease Term Survival of Lessee's Obligations PUBLIC UTILITY CHARGES Lessee to Provide and Pay for Utilities Lessor Not Liable for Failure of Utilities INDEMNIFICATION OF LESSOR General Indemnification of Lessor Without Limitation of Any Other Indemnity Given Hereunder LIEN FOR RENT AND OTHER CHARGES Lien for Rent ADDITIONAL BENEFITS TO THE CITY OF MIAMI Additional Benefits CONDEMNATION Definitions Entire Subject Property Taken by Condemnation Partial Taking of Subject Property by Condemnation Adjustment of Minimum Annual Rent Upon Partial Taking Deposit of Condemnation Award with Escrow Agent Rights of Leasehold Mortgagee Temporary Taking DEFAULT PROVISIONS Events of Default - Lessee Remedies in Event of Lessee's Default Waivers and Surrenders to be in Writing Rights of Leasehold Mortgagee Upon Lessee's Default Events of Default - Lessor Mitigation iv 83 84 85 86 86 87 87 87 88 89 89 90 90 91 92 93 93 94 95 96 96 96 97 99 99 100 100 101 ARTICLE XXVII Section 27.1 ARTICLE XXVIII Section 28.1 ARTICLE XXIX Section 29.1 Section 29.2 ARTICLE XXX Section 30.1 ARTICLE XXXI Section 31.1 ARTICLE XXXII Section 32.1 ARTICLE XXXIII Section 33.1 Section 33.2 ARTICLE XXXIV Section 34.1 Section 34.2 ARTICLE XXXV Section 35.1 Section 35.2 ARTICLE XXXVI Section 36.1 ARTICLE XXXVII Section 37,1 ARTICLE XXXVIII Section 38.1 ARTICLE XXXIX Section 39.1 INVALIDITY OF PARTICULAR PROVISIONS Invalidity of Provisions QUIET ENJOYMENT Quiet Enjoyment LESSOR'S TITLE AND LIEN Title to Leased Property Lessee Not to Encumber Lessor's Interest REIMBURSEMENT OF CITY EXPENSES Reimbursement of City Expenses LIMITATION OF LIABILITY Limitation on Liability of Lessee ESTOPPEL CERTIFICATES Estoppel Certificates REMEDIES CUMULATIVE Remedies Cumulative Waiver of Remedies Not to be Inferred SURRENDER AND HOLDING OVER Surrender at End of Term Rights Upon Holding Over SUBLEASES Subleasing Nondisturbance and Attornment FINANCIAL STATEMENTS Financial Statements MODIFICATION Modification CONVEYANCE BY LESSEE TO LESSOR Conveyance by Lessee to Lessor APPLICABLE LAW Applicable Law 101 102 102 104 104 104 105 106 106 106 107 107 108 108 109 109 109 ARTICLE XL Section 40.1 Section 40.2 Section 40.3 Section 40.4 ARTICLE XL' Section 41.1 Section 41.2 Section 41.3 Section 41.4 Section 41.5 ARTICLE XLII Section 42.1 Section 42.2 Section 42.3 ARTICLE XLIII Section 43.1 ARTICLE XLIV Section 44.1 Section 44.2 Section 44.3 ARTICLE XLV Section 45.1 Section 45.2 Section 45.3 Section 45.4 Section 45.5 Section 45.6 Section 45.7 Section 45.8 ARTICLE XLVI Section 46.1 Section 46.2 NOTICES Manner of Mailing Notices Notice to Leasehold Mortgagees Sufficiency of Service When Notice Deemed Given or Received MISCELLANEOUS PROVISIONS Captions Conditions and Covenants Entire Agreement Time of Essence as to Covenants of Lease Agreement Recording, Documentary Stamps MINORITY AND WOMEN'S BUSINESS AGREEMENT Minority and Women Participation Equal Employment Opportunities Affirmative Action 112 113 114 COVENANTS TO BIND AND BENEFIT RESPECTIVE PARTIES AND TO RUN WITH THE SUBJECT PROPERTY Covenants to Run with the Subject Property 114 UNAVOIDABLE DELAY Unavoidable Delay(s) Manner of Notice of Unavoidable Delay(s) and Conditions With Respect to Performance of Obligations Payment of Minimum Annual Rent and/or Percentage Rent in the Event of an Unavoidable Delay GENERAL PROVISIONS Conflict of Interest Brokerage Assignability and Binding Effects Duplicate Originals No Third Party Beneficiaries Authority Waiver of Jury Trial Attorney's Fees and Expenses LESSEE'S RIGHT OF SALE Lessee's Right of Sale Right of Appraisal 114 115 115 116 116 116 117 117 117 117 118 118 118 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 Restrictions EXHIBIT G - Possession Date Certificate EXHIBIT H - Survey of Ichimura Miami Japan Garden EXHIBIT I - Minority and Women Business Affairs and Procurement Program Ordinance and First Source Hiring Agreement vii LEASE AND DEVELOPMENT AGREEMENT This Lease and Development Agreement (the "Lease" or "Lease Agreement") made as of the , 1997, between the City of Miami, a municipal corporation of the State of Florida acting by and through the City Manager (the "City Manager"), and with the approval of the City Commission of Miami having its offices at 3500 Pan American Drive, Miami, Florida 33133 ("LESSOR" or "CITY"), and Parrot Jungle and Gardens, Inc., a Florida corporation whose principal office is located at 11000 Southwest 57th Avenue, Miami, Florida 33156, ("LESSEE"). STATEMENT OF BACKGROUND AND PURPOSE The City is owner, in fee simple, of all that certain land located in the City of Miami, Dade County, Florida, which is known as and referred to herein as "Watson Island". Watson Island is shown on the sketch attached hereto as Exhibit A. For the 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 Property"; B. The remainder of Watson Island as shown on Exhibit A (hereinafter "Watson Island"). Pursuant to the authority expressly conferred in the City of Miami Charter, and general law, the City Commission on May 25, 1995, adopted Resolution No. 95-415 which authorized the publication of a request for proposals for the development 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 Watson Island, Miami, Florida. Lessee submitted a proposal on August 29, 1995, which was approved by voter referendum by the electorate of the City of Miami on November 7, 1995, (the "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 are to be more particularly described in the Phase I and Phase II "Development Plans": 1 Attractions to include: Jungle Trails & Gardens Jungle River Semi -Formal Gardens Aviaries and Bird Exhibits Baby Bird Nursery & Hatchery Monkey Village Infant Ape Care Facility Flamingo Lake Everglades Lake Posing and Photography Area Terrarium and Education Center Reptile Exhibits South Florida Aquatic Exhibit Children's Adventure Park Beachfront Recreation Area Picnic Pavilions Brown House Boat Landings/Courtesy Dock 2. Banquet/Special Event Facility Meeting Rooms 3. Theaters including: Parrot Bowl Jungle Theater & Wildlife Showcase Terrarium Theater 4. Food Service Facilities, such as: Parrot Cafe Japanese Tea Room Terrarium Food Court Family Attraction Center Food Carts/Picnic Service 2 5. Retail Service Facilities such as: Parrot Jungle Emporium Terrarium Gift Shop 6. Service and Support building to include: Main Entrance and Entry Building Maintenance Facility Service Area Veterinary Hospital Plant Nursery Parking Areas Security Restrooms Educational Complex Living residence for animal keepers It is the mutual desire of the Parties that a portion of Watson Island be leased and demised by the Lessor to the Lessee for the purposes set forth in the Proposal 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 Date, with regard to development and construction of the Project and is not intended to limit the rights 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, as based on the Development Plans prepared by the Lessee and approved by the City Commission, 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: 3 ARTICLE I EXHIBITS AND DEFINITIONS 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 Restrictions Exhibit G -- Possession Date Certificate Exhibit H Survey of Ichimura Miami Japan Garden Exhibit I Minority and Women Business Affairs and Procurement Program Ordinance and First Source Hiring Agreement Section 1.2. Defined Terms; Singular, Plural And. Gender. Any word contained in the text of this Lease Agreement shall be read as the singular or the plural, and as the masculine, feminine or neuter gender as may be applicable in the particular context. More specifically, however, for the purposes of this Lease Agreement the following words shall have the meanings attributed to them in this Section: "Acceptable Operator" means an entity possessing the business experience, good reputation, financial resources, and adequate personnel necessary for the proper performance of all of Lessee's obligations under this Lease in a manner consonant with the quality, reputation and economic viability of the Project, including (without limitation) the obligation of Rent theretofore payable by Lessee under this Lease and possessing a minimum of Five (5) years experience in the successful operation and management of a destination visitor attraction, which is approved by the City Commission, which approval shall not be unreasonably withheld or delayed. 4 "Adjacent Property" means all of the public property located north of the MacArthur Causeway, which is depicted as "Public Open Space" on the sketch of Watson Island attached hereto and made a part hereof as Exhibit "A". "Business Days" means Monday through Friday excluding legal holidays. "Certificate of Occupancy" 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 Miami Ordinance No. 61.45. "City" 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, and who is authorized to execute this Lease and other documents including notices required hereunder. "Construction Documents" means the final working drawings and specifications including the following information: definitive architectural and landscape architectural drawings; definitive foundation and structural drawings; definitive electrical and mechanical drawings; and plans for all lighting facilities affecting the exterior appearance of the Leasehold Improvements. "Consumer Price Index" means the monthly indices for the applicable month published by the Bureau of Labor Statistics of the United States Department of Labor as "The Consumer Price Index for All Items, Miami -Ft. Lauderdale, (Base Year 1982- 84=100)", "Conceptual 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 Lessee, 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 contract. 5 "Development Plans" has the meaning ascribed to it in Section 4.6. "Development of Regional Impact" or "DRI" has the meaning ascribed to it in Chapter 380, Florida Statutes. "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 rent that a similar property being used as a family 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 Lessee 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 acting in what they consider their own best interests; (iii) A reasonable time is allowed for exposure in the open market; (iv) Payment is made in terms of cash in U.S. dollars or in terms of financial arrangements comparable thereto; and, (v) The rent represents the normal consideration for property leased unaffected by special or creative financing or concessions granted by anyone associated with the lease. "Gross 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. Gross Revenue shall include: a. Revenue derived from advertising conducted on the Subject Property; 6 b. Revenue derived from any and all trademarks, logos, Trade Names or other legally protected trademarks, logos or Trade Names owned and/or controlled by the Lessee which is used in identification of this specific Subject Property. Notwithstanding the forego the Parties acknowledge that Lessee may develop other properties and attractions; -outside of the Subject Property (including, without limitation, other properties and attractions located within Dade County, Florida) as well as products using the name or logo "Parrot Jungle" and/or variations thereof. Lessor expressly acknowledges and agrees that it shall only be entitled to revenue from the Lessee to the extent such revenue is directly derived by the Lessee from the uses of Lessee's "Trade Name" (as defined below). Any and all uses of the name or logo "Parrot Jungle" or variations thereof in conjunction with any other properties, attractions or products of the Lessee or any affiliate or related Person of Lessee shall remain the exclusive interest and property of the Lessee and/or Lessee's assigns, and Lessor shall have absolutely no rights or interests with respect thereto. c. Any parking revenue with regard to the Subject Property; d. Revenue from sales, rentals, and services, including the licensing and/or rentals of animals, 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 for the right to sell admission tickets, or entry rights to the Subject Property; 7 g. All revenue paid to Lessee or Lessee's Subtenants in connection with the use of the Subject Property, any facility thereon, or any portion thereof for any period of time, including without limitation, for: (i) special events, such as banquets, concerts, receptions and parties; and (ii) motion picture, commercial filming purposes or commercial photographic purposes. 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 Improvements. It is the intent of the Parties that such revenue shall be excluded from Gross Revenue only if Lessee utilizes such revenues for construction of the Phase I and Phase lI Leasehold Improvements, and any improvements constructed thereafter for purposes of enhancing or upgrading the Leasehold Improvements, and not for routine repair or replacement; 2. Gross 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 credit; c. Sale of trade fixtures or operating equipment after use thereof in the conduct of Lessee's business on the Subject Property; d. All sums and credits received in settlement of claims for loss or damage to merchandise and all credit company charges; 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 wholesale, or not retail; 8 €_ Amount of any sales or excise tax levied upon retail sales and services rendered and payable over to the appropriate governmental authority; g. Rent paid to Lessee by Subtenants; h. Any revenue collected with regard to the Subject Property which is not actually involved with the day to day business of the Subject Property such as the financing of the Lessee's interest in the Subject Property, sale or assignment of the Leasehold Estate, collection of insurance proceeds, collection of Eminent Domain proceeds, monies that are collected for events that are done for charities wherein the amounts collected are paid to the charitable sponsor or not -for -profit organizations, and such; t. All gratuities paid to employees. 3. Gross Revenue shall be reduced by the following items: a. Amounts of any refunds or allowances made on merchandise claimed to be defective or unsatisfactory, or discounts to customers, provided said amounts had been previously included as part of Gross Revenue, and that if such refunds, allowances or discounts are in the form of credits to customers, such credits shall be included in Gross Revenue when used. Gross Revenues will also be reduced by uncollected or uncollectible credit accounts (those accounts which are more than Ninety (90) days delinquent) provided said amounts are included in Gross Revenue upon payment, if made. "Impositions" means all governmental assessments, including assessments imposed by the City, franchise fees, excises, license and permit fees, levies, charges and taxes, including ad valorem real estate taxes on the land under the Subject Property and the Leasehold Improvements, general and special, ordinary and extraordinary properly levied against the Subject Property and the Leasehold Improvements and/or the Lessee's Leasehold Estate which constitute a lien on the Subject Property or the Leasehold Improvements. "Initial Term" has the meaning ascribed to it in Section 3.1(a). 9 "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. "Lease Date" means the date this Lease Agreement is last signed by the City Manager on behalf of the Lessor and Lessee, after approval by the City of Miami Commission. "Lease Term" means the Initial Term, and if the Lessee elects to extend the term, after Lessee exercises its option with respect thereto, all references in this Lease to the Lease Term shall be deemed to include the Extension Term as such terms are described and fixed in Section 3.1, and additional extensions created by Unavoidable and/or Permitted Delays, "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 described in the approved Phase I and Phase II Development Plans and Construction Documents, and any improvement constructed thereafter from time to time during the Lease Term that are hereafter located upon the Subject Property; as well as any apparatus and equipment incorporated into the Leasehold Improvements at any time, including all fittings, appliances, machinery, garage equipment, heating equipment, lighting equipment, cooling equipment, air conditioning and ventilating equipment, wiring, controls, communications equipment, plumbing, switchboards, antennae, elevators, escalators, floor coverings, refrigerating equipment, hot water heating and all other appliances and equipment; excepting only in each case articles of Personal Property and trade fixtures owned by Lessee, or others which can be removed without defacing or materially injuring the Leasehold Improvements. 10 "Leasehold Mortgage" means a mortgage, deed of trust, or other instrument which constitutes, or any security interest given in connection therewith, which together constitute an encumbrance or lien upon the Lessee's Leasehold Estate or any part of it, or any related personal property, and Lessee's interest in the Leasehold Improvements (including Lessee's interest as sublessor in any present or future subleases and any other interest of the Lessee in the Leasehold Improvements and Personal Property) as security for any loan, including the Lessee's construction loan. "Leasehold Mortgagee" means any holder of the Leasehold Mortgage or note or notes 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 foreclosure. "Legal Requirements or Applicable Law" means applicable laws, Florida Statutes, codes, City and Dade County ordinances, orders, judgments, decrees and injunctions from courts having jurisdiction over the Subject Property, rules, and requirements of State and local boards and agencies with jurisdiction over the Subject Property, now existing or hereafter enacted, adopted, foreseen and unforeseen, ordinary and extraordinary, which may be applicable to the Subject Property or any part of it. "Lessee" has the meaning ascribed 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 Lessee 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)(ii). "Major Use Special Permit" has the meaning ascribed to it in Article 17 of Ordinance 11000, as amended, the Zoning Ordinance of the City of Miami, Florida. 11 "Minimum Annual Rent" means that minimum rent to be paid as set forth in Section 5.1 (a). "Parties" means the Lessor and Lessee. "Percentage Rent" means that percentage of Gross Revenue set forth in Section 5.1(b). "Permitted Delay(s)" means a delay in the construction and completion of the Sanitary Sewer System beyond Six (6) months from the Lease Date or October 1st, 1997, whichever occurs earlier, or any delay resulting from a determination by the appropriate governmental authority that the development of the Subject Property must undergo a DRI review, 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, and 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 investment enterprise. "Personal Property" 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, subject to rights of any secured party or title retention agreement of a third party. "Possession Date" means the date described in Section 4,3. "Prime Interest Rate" means that rate of interest charged by First Union National Bank of Florida (or if this bank is not in existence or making loans at the Prime Interest Rate, then the Prime Interest Rate shall be that rate so charged by the bank located in Dade County having the largest net worth at the applicable time) from time to time on Ninety (90) day commercial loans to its most creditworthy corporate borrowers. "Project" means the Leasehold Improvements, constructed in accordance with the approved Phase I and Phase II Development Plans and Construction Documents, described in the Statement of Background and Purpose. 12 "Rent" shall be as set forth in Section 5.1 and shall include any additional rent occurring or which may occur pursuant to the provisions of this Lease. "Restoration Work" has the meaning ascribed to it in Section 16.2. "Sanitary Sewer System" means the City Department of Public Works Project No, B-5590 entitled "Watson Island Sanitary Sewer Project". "Schematic Design Documents" consist of drawings and other documents illustrating the scale and relationship of Leasehold Improvement components. "Section", "subsection", "paragraph", "subparagraph", "clause", or "subclause" followed by a number or letter means the section, subsection, paragraph, subparagraph, clause or subclause of this Lease Agreement so designated. "Southside Parki_Lot" has the meaning ascribed to it in Section 13.8. "Special Event" means an event that confers exclusive use of the Subject Property to a private entity or community organization for a specific period of time to the exclusion of regular public use programming. "Subject Property" means the real estate owned by the Lessor and comprising all of the land to be demised under the terms of this Lease Agreement, as reflected on the survey attached hereto as Exhibit B, and the legal description attached hereto as Exhibit C, together with all appurtenant rights belonging and all buildings and improvements now or hereafter located on or under such land including, without limitation, all of the Leasehold Improvements. "Sublease" means any lease (excluding this Lease), sublease, license,. concession or other agreement by which Lessee or any person or other entity claiming under Lessee (including, without limitation, a subtenant or sublicensee) demises, leases, subleases, licenses or sublicenses to or permits the use or occupancy by another person or entity of any part of the Subject Property and Leasehold Improvements (excluding a sublease considered a Transfer under the provisions of Article VIII). "Subtenant" means any person, firm, corporation or other legal entity using or occupying or entitled to use or occupy any part of the Subject Property or the Leasehold Improvements under a Sublease. 13 "Total Construction Costs" means all costs, including but not limited to all hard construction costs, costs of furnishings and fixtures, machinery and equipment, and also all so-called soft costs including, but not necessarily limited to, taxes during construction, interim interest expenses, cost of financing, financing fees, if any, development costs, architectural, engineering and design fees, survey, title insurance charges and premiums, permits and licenses, insurance premiums during construction, accounting, marketing costs, advertising, brokerage and all legal fees relating to the Project, leasing, and construction; utilities, tap -in connection fees, topographical and soil tests, if any; all payments made to contractors and subcontractors, and costs of similar items, and all other costs related to the cost of the construction of the Leasehold Improvements and the portion of the Infrastructure Improvements subject to the provisions of Section 4.2. "Trade Name" means "Parrot Jungle & Gardens of Watson Island." The Trade Name may be utilized by Lessee or any Subtenant of the Lessee during the Lease Term for the purposes of identifying andlor marketing the Subject Property, or any of the Leasehold Improvements located thereon. The Parties acknowledge and agree that the use of such Trade Narne is by virtue of a license only. If at any time during the Lease Term, the name utilized by the Lessee or any Subtenant of the Lessee to identify and/or market the Subject Property or any of the Leasehold Improvements located thereon, is amended or modified in any manner (including by way of illustration, and not limitation, by adding the words "of Miami"), the Parties shall enter into a letter agreement acknowledging that the Trade Name has been modified, setting forth the revised Trade Name, and clarifying any Gross Revenue received with respect to the Trade Name shall now mean the new Trade Name. The Parties expressly acknowledge and agree that notwithstanding any provision in this Lease to the contrary that upon the termination of this Lease (whether in due course or for any other reason) that the Lessor shall have absolutely no right or interest directly or indirectly in the name mark or logo "Parrot Jungle". "Transfer" has the meaning ascribed to it in Section 8.2. 14 "Unavoidable Delay(s)" means damage or destruction by fire or other casualty, whether similar or dissimilar, acts of the federal, state, county and/or city governments, including acts pertaining to strikes, embargoes, shortages of material or labor, labor troubles or labor disputes, force majeure, unusually adverse weather conditions, or other like or unlike events or conditions beyond the control of the Parties, including any court actions, and injunctions by third parties. "Watson Island" has the meaning ascribed to it in the Statement of Background and Purpose. "Work' means all construction to be performed by the Lessee, including any repairing, restoring, removing, or replacing of the Leasehold Improvements. ARTICLE II THE DEMISE Section 2.1. The Demise. The Lessor, for and in consideration of the Rent reserved and of the covenants and agreements made by the Lessee to be kept, observed and performed, does demise and lease to the Lessee, and the Lessee leases from the Lessor, the Subject Property, subject only to the permitted exceptions as may be excepted pursuant to Section 29.1 hereof. Section 2.2. The Leasehold Improvements to Become the Property of Lessor. So long as this Lease remains in force, the Leasehold Improvements constructed by the Lessee on the Subject Property shall be owned in fee simple by the Lessee but on termination of this Lease, whether by passage of time or otherwise, the Leasehold Improvements shall become the sole property of the Lessor in fee simple, and free and clear of all encumbrances 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); (ii) any installments of levies for public improvements not yet due and payable prior to the termination of this Lease (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); (iii) 15 the Lessor's rights and remedies in the event of the termination 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 expiration of the Lease Term, or any earlier termination of this Lease, Lessee agrees to execute, acknowledge and deliver to Lessor a proper instrument in writing, releasing and quitclaiming to Lessor all right, title, and interest of Lessee in and to the Leasehold Improvements. ARTICLE III TERM Section 3.1. Lease Term. (a) Initial Term. This Lease shall be for an initial term of Forty - Five (45) years, (the "Initial Term"), commencing on the Possession Date and ending on the date that is Forty -Five (45) years thereafter, unless terminated at an earlier date pursuant to the terms of this Lease. Within Thirty (30) days after the Possession Date, the City Manager and the Lessee, upon request of either party, shall execute one or more memoranda in such form as will enable them to be recorded among the Public Records of Dade County, setting forth the beginning and termination dates of the Initial Term as well as describing the right to the extension of this Lease, determined in accordance with this Lease. (b) The Extension Term. The Lessee is hereby granted the option of extending this Lease for a single Fifteen (15) year period, (the "Extension Term") provided the Lessee is not in default of any of the material provisions of this Lease on the date of the exercise of the option. The Lessee may exercise this option at any time after the Thirty -Ninth (39) Lease Year. Notwithstanding the aforementioned, the City Manager, at his sole discretion, may authorize the Lessee to exercise this option at any time during the Initial Term, provided that the City Manager finds that authorizing the Lessee to exercise the extension prior to the Fortieth (40) Lease Year is for the purpose of financing additional Leasehold Improvements. To exercise this 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 16 commitments for financing of the additional Leasehold Improvements, which approval shall not be unreasonably withheld or delayed. The Extension Term will be on all of the same terms and conditions as contained in this Lease Agreement except that the Rent will be adjusted as set forth in Section 5.3. ARTICLE IV POSSESSION OF THE SUBJECT PROPERTY AND CONSTRUCTION OF LEASEHOLD IMPROVEMENTS AND INFRASTRUCTURE IMPROVEMENTS Section 4.1 The Leasehold Improvements. The Parties agree that the development of the Project described in the Statement of Background and Purpose may be undertaken by the Lessee in Two (2) phases; Phase I, and Phase II. Accordingly, the Lessee, at the sole cost and expense of the Lessee, and pursuant to proper permits and substantially in the manner provided by this Section, and in accordance with the provisions of this Lease, and Applicable Law, shall design and construct on the Subject Property the Leasehold Improvements, The Lessee shall initially design and construct the Phase I Leasehold Improvements which are to be more particularly described in the Phase I Development Plans and the Construction Documents, The Phase I Leasehold Improvements shall, at minimum, include the following attraction amenities: Jungle Trails and Garden Jungle River Semi -Formal Gardens Aviaries and Bird Exhibits Baby Bird Nursery and Hatcheiy Monkey Village Everglades Lakes/Freshwater Wetland Posing and Photography Area Reptile Exhibits Ichimura Miami -Japan Garden Brown House Children's Adventure Park/Petting Zoo and Play Area Beachfront Recreation Area Picnic Pavilions Parrot Bowl and Jungle Theater/Wildlife Showcase Open Air Theaters Food Service Facilities 17 Retail Gift Shops Boat Landings/Courtesy Dock Service and Support Facilities including: Main Entrance and Entry Building Enclosed Maintenance Facility Service Area Veterinary Hospital Plant Nursery Parking Areas, as required Security Restrooms Lessee shall undertake and complete the design, development and construction of the Phase II Leasehold Improvements, within Ten (10) years of the Possession Date, subject to Unavoidable Delay and Permitted Delay, The Lessee may not substantially modify and/or amend the Phase II Development Plans without the prior written consent of the City Commission, 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 II 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 Banquet/Special Event Facility & Meeting Rooms Enclosed Terrarium Theater Food Service Facilities Family Attraction Restaurant Section 4.2 Lessee's Financial Obligations. It shall be the sole responsibility of the Lessee to secure sufficient capital to construct the Leasehold Improvements in such a manner as to meet its obligations under this Lease. Lessee hereby covenants that Lessee shall expend no less than Twelve Million Five Hundred Thousand Dollars ($12,500,000) for the Total Construction Costs of Phase I and the Infrastructure Improvements, and no less than Thirteen Million Eight Hundred Thousand Dollars ($13,800,000) for the Total Construction Costs of Phase II. Lessee agrees that in any 1g event, during the Lease Term, Lessee shall invest no less than Twenty Six Million Three Hundred Thousand Dollars ($26,300,000) for the Total Construction Costs of Phase I and Phase II and the Infrastructure Improvements. It is anticipated that an Entity other than the City ( "Entity" herein defined as the Federal Government, State of Florida, Dade County, or a non-profit organization) 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 agreement for the construction of the causeway access roads. 4,3. Delivery of Possession of Subject Property (the "Possession Date"). (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 occurred: (i) The City Commission shall have approved the Phase I Development Plans, as provided in Section 4.6, which approval shall not be unreasonably withheld or delayed; and (ii) The City Manager shall have received and approved, which approval shall not be unreasonably withheld or delayed, the commitment or commitments for the construction and/or permanent financing of the Phase I Leasehold Improvements to be constructed at the Subject Property, or such other evidence as may be reasonably satisfactory to the City Manager that such financing has been committed or is available; and (iii) The City has received the Environmental Condition Acceptance 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 undergo development -of -regional -impact 19 review and shall have received a determination in the form of a binding letter of interpretation as such terms are used in. Chapter 380 of the Florida Statutes, as amended. If the Lessee is required to undergo a development -of -regional impact review, such event and all action required by Lessee as a consequence thereof shall constitute a Permitted Delay and Lessee's taking possession of the Subject Property shall be extended accordingly; and (v) The Parties shall have entered into an agreement for the construction of the Infrastructure Improvements. The date that the City delivers possession of the Subject Property to Lessee in accordance with this Article, by notice in writing, is herein called the "Possession Date". Lessor and Lessee agree to execute a Possession Date Certificate in the form of the certificate attached hereto as Exhibit G. In the event the Possession Date does not fall on the first day of the month, the Possession Date shall be adjusted to be the first day of the following month. (b) Lessee and the 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 indefinite period of time during the period of satisfaction of the aforesaid conditions precedent and that therefore: (i) With the exception of 4.3(i) above which shall be subject to the Major Use Special Permit process as provided in Section 4.6, 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 (15) 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 shall promptly undertake such additional or remedial action, but in no event shall the period of time available to the Lessee for such additional or remedial action exceed Thirty (30) Business Days from receipt of the City's request; provided, however, that if such additional or remedial action cannot reasonably be cured within 20 such 30-day period, that Lessee shall be provided such additional time as is necessary so long as Lessee shall be diligently and continuously endeavoring to complete such additional or remedial action; and (ii) The Lessee or the Lessor may terminate this Lease if all of the aforesaid conditions precedent are not satisfied on or before Six (6) months from the Lease Date. Provided, however, either Party may reasonably 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: (aa) Any Unavoidable Delay including, without limitation, an Unavoidable Delay in connection with the Lessee's investigation, evaluation, and/or "Clean -Up" (as defined in Section 20.1), if required, of the environmental condition of the Subject Property; (bb) Permitted Delay; and/or (cc) Delay in connection with review and approval by the City Commission and/or City Manager. (c) Notwithstanding anything herein to the contrary, prior to the Possession Date, the Lessee shall not be required to perform any of its obligations hereunder except as provided for in Section 20.3 with respect to Lessee's entry upon the Subject Property for purposes of conducting or causing the investigation and evaluation of the environmental conditions at the Subject Property. (d) Subject to Lessor's cooperation, the Lessee hereby undertakes and assumes sole and exclusive responsibility to cause and obtain the permitting of all the Leasehold Improvements in accordance with the Construction Documents. Lessor agrees to cooperate fully and promptly in the permitting process including, but not limited to, joining in any permit application, plats, opinion of titles, gap affidavits and other applicable applications or affidavits if required to do so. Section 4.4. Additional Security For Lessee's Construction Obligations. In connection with the commencement and completion of construction of the Phase I and II Leasehold Improvements, the Lessee further agrees with the Lessor as follows: 21 (a) Prior to the commencement of construction of the Phase I and Phase II Leasehold Improvements, respectively, the Lessee, at Lessee's sole cost and expense, shall obtain a Payment and Performance Bond or Letter of Credit. (b) The Payment and Performance Bond shall be issued by a company authorized to do business in the State of Florida in an amount equal to One Hundred Percent (100%) of the cost of the Leasehold Improvements plus professional design fees related to the preparation of the Construction Documents, for the respective phase of Leasehold Improvements, naming the City as the owner/obligee and the Lessee as the principal guaranteeing the payment and performance of Lessee's Leasehold construction obligations hereunder, free of mechanic's or other liens. The conditions of the payment and performance bond shall be to insure that the Lessee will: (i) promptly make payment to all claimants, as defined in §255.05 Florida Statutes, 1995, supplying the Lessee with labor, materials, or supplies, used directly or indirectly by the Lessee in the prosecution of the Work provided for in this Lease Agreement; and (ii) pay the Lessor all losses, damages, expenses, costs, and attorneys fees, including appellate proceedings, that the Lessor rightfully sustains because of a default by the Lessee pursuant to claims made under Florida Statute 255.05; and (iii) perform the guarantee of all Work and materials furnished under this Lease Agreement. The payment and performance bored shall be reduced in amount as the Work proceeds as certified by Lessee's architect, and may be terminated at such time as the respective Phase I, and Phase II Leasehold Improvements are completed as evidenced by the issuance of a Certificate of Occupancy for the respective Leasehold Improvements; and reasonably satisfactory evidence is provided by the Lessee to the City Manager that the requirements of the payment and performance bond have been satisfactorily concluded. The form of the payment and performance bond shall be approved by the City Manager, which approval shall not be unreasonably withheld. 22 (c) Should Lessee wish to utilize a Letter of Credit instead of a Payment and Performance Bond, then the Letter of Credit shall be in an amount equal to One Hundred (100%) percent of the cost of the Leasehold Improvements plus professional design fees related to the preparation of the Construction Documents, for 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 unreasonably withheld or delayed. The Letter of Credit shall insure the faithful performance by the Lessee of all of its construction obligations, under the same terms and conditions as the Payment and. Performance Bond, as set forth in Section 4.4 (b) for the respective phase of the Leasehold Improvements. The Letter of Credit shall be renewed annually and shall be maintained at the City's Department of Finance during the entire term of construction and until a Certificate of Occupancy is issued for the respective phase of the Leasehold Improvements. The letter of credit shall be reduced in amount as the Work proceeds as certified by Lessee's architect, and may be terminated at such time as the respective Phase I, and Phase II Leasehold Improvements are completed as evidenced by the issuance of a Certificate of Occupancy for the respective Leasehold Improvements; and reasonably satisfactory evidence is provided by the Lessee to the City Manager that the requirements of the letter of credit have been satisfactorily concluded. The form of the Letter of Credit shall be approved by the City Manager, which approval shall not be unreasonably withheld or delayed. (d) During the course of construction, the Lessee shall provide the Lessor (if Lessor requires by notice in writing), once each month, a Certificate of Lessee's architect (or copy thereof) certifying that those portions of the Leasehold Improvements completed are in substantial accordance with the permitted Construction Documents; (e) During the course of construction, Lessor and any Mortgagee, its architects, engineers, agents and employees may enter upon at reasonable times, and inspect the Subject Property, and the construction of the Leasehold Improvements for the purpose of seeing that the Work conforms with the agreements contained herein. 23 Lessee shall maintain copies of all Construction Documents and specifications relating to the construction and the construction site, and Lessor and Mortgagee may examine the same at all reasonable times; and if required by them, Lessee shall furnish them with copies thereof. If during construction, Lessor, or its architect or engineer shall reasonably determine that the construction is not proceeding in accordance with the provisions of this Lease or with the Construction Documents and specifications, and shall give written notice to Lessee specifying in detail the particular deficiency or defect, Lessee shall thereupon take such steps as are necessary to correct such deficiency or omission; provided, however, if Lessee shall contend that Lessor is acting unreasonably in making any such determination, the dispute shall be submitted to arbitration pursuant to Article XVII hereof unless Lessor and Lessee agree in writing within Fifteen (15) days from the arising of the dispute to be bound by the decision of the Lessee's architect and submit the dispute to him for determination. Section 4.5. Time for Commencement and Completion of Construction of the Phase I Leasehold Improvements. The Lessee agrees for itself, its permitted successors and assigns, and every permitted successor in interest that, subject to Unavoidable 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 Date, Lessee shall provide a timetable for completion of the Phase I Leasehold Improvements which shall include a scheduled completion date which, subject to Unavoidable Delay and Permitted Delay, must be no later than Thirty (30) months from the Possession Date. In the event of Unavoidable Delay and/or Permitted Delay, the date for commencement and/or the scheduled completion date shall be correspondingly extended by the same number of days involved in the period of Unavoidable Delay and/or Permitted Delay. Section 4.6. Manner of Construction of Phase I and Phase II Leasehold Improvements. The City acknowledges that the Lessee shall be submitting Development PIans (which may be amended from time to time) in stages for approval for the Phase I and II Leasehold Improvements. The City shall not be required to issue permits or other formal governmental approvals to Lessee for a particular phase until 24 the City Commission (subject to the provisions of this Lease Agreement) has approved the Development Plans through the Major Use Special Permit process for the particular phase for which a permit or other formal governmental approval is requested. The Parties hereto agree that the City Commission shall not unreasonably withhold or delay its approval. (a) Development Plans. Development Plans shall be subject to the submission of an application for a Major Use Special Permit. The City agrees to use due diligence in processing the application of the Major Use Special Permit. For the purpose of this Lease, "Development Plans" (commonly referred to as Schematic Design Documents) shall consist of all application materials required pursuant to a complete Major Use Special Permit application. (b) Construction Documents. Not later than Ninety (90) days after the City Commission's approval of the Major Use Special Permit application for a particular stage of construction of the Phase I or Phase II Leasehold Improvements, Lessee shall submit to the City Manager Two (2) sets of Construction Documents for the same stage. Upon receipt thereof, 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 Construction Documents submitted shall be limited to matters depicted in the Construction Documents which do not conform substantially to the Development Plans approved by the Major Use Special Permit or previously approved Construction Documents for other stages; or are new elements not presented in the approved Development Plans, or are violations of this Lease or of governmental ordinances, codes, plans or regulations. If no response from the City is delivered to Lessee within 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, regulations or of this Lease shall be deemed waived thereby. In the event of a disapproval, Lessee shall, subject to Unavoidable Delay, within Thirty (30) Business Days after the date Lessee received the notice of such disapproval, resubmit 25 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 Manager, in accordance with the procedure hereinabove provided for in original submission, until the same shall be approved by the City Manager. The City arid Lessee shall in good faith attempt to resolve any disputes regarding the Construction Documents. In the event the Parties fail to resolve such dispute, the dispute shall be submitted to arbitration pursuant to Article XVII. (c) Phase I and Phase II Development Plans and Construction Documents and all Work by Lessee with respect to the Subject Property and the construction of the Leasehold Improvements thereon shall be performed in accordance with this Lease, the Miami Charter and Code, the South Florida Building Code and with the provisions of all other applicable federal, state and local laws and ordinances. (d) No approval by the City Commission or the City Manager of any Development Plans or Construction Documents, respectively, pursuant to this Section shall relieve Lessee of any obligation it may have at law to file such Construction Documents with any department of the City or any other governmental authority having jurisdiction over the issues; or to obtain any building or other permit or approval required by law. Lessee acknowledges that any approval given by the City Commission or the City Manager pursuant to this Section shall not constitute an opinion or agreement by the 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 II Leasehold Improvements, the Lessee shall permit representatives (such as building inspectors, fire, police, zoning and like) of the Lessor access to the Subject Property at all reasonable times, as the Lessor deems necessary for purposes of this Lease Agreement including, but not limited to, inspection of all work being performed in connection with the construction of the Phase I and Phase II Leasehold Improvements. Any such access and inspections shall not interfere with the Work being performed by or on behalf of the Lessee. 26 (t) In respect to the Lessee's use and occupancy of the Subject Property (and the subsurface of it) during the progress and period of construction, or by anyone acting under the Lessee, except for the negligence of the Lessor, its officers, agents, and employees, contractors or subcontractors or invitees, the Lessee covenants to indemnify, defend and hold harmless the Lessor and its agents and employees from and against all claims and demands whatsoever for loss or damage, including property damage, personal injury and wrongful death which occurs at the Subject Property arising out of construction and development of the Subject Property including the Phase I and Phase II Leasehold Improvements, which the Lessee is responsible for. (g) Within Thirty (30) days after all of the foundations for the Phase I and Phase I! Leasehold Improvements have been installed, the Lessee shall furnish the Lessor with a survey by a registered land surveyor showing the foundations (including any caissons) to be within the perimeter lines of the Subject Property. Within 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 perimeter lines of the Subject Property. Section 4.7 Temporary Use Of Watson Island During Construction Of Leasehold Improvements. From time to time, during construction of the Phase 1 Leasehold Improvements, and upon written request by Lessee to Lessor, the Lessor 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 "Easements") on Watson Island outside of the Subject Property, with the right of ingress and egress thereto, for use as a staging area for construction related to the Phase I Leasehold Improvements. Lessor, at its sole discretion, shall designate the location of said Easements on Watson Island. Lessor further agrees that, subject to availability and upon written request by Lessee, the Lessor and Lessee shall enter into a Temporary Construction Easement, whereby Lessor shall grant Lessee the right and privilege of an Easement(s) on Watson Island, outside of the Subject Property, with the right of ingress and egress thereto, for 27 use as a staging area for construction related to the Phase II Leasehold Improvements. Lessor, at its sole discretion, shall designate the location of said Easement(s) on Watson Island. Lessor reserves to itself, its agents, employees, representatives and contractors, and to any other governmental agency or instrumentality and any public utility company the right and privilege of a Temporary Construction Easement within, under or upon the Subject Property for use as a staging area for construction related to the Infrastructure Improvements and Sanitary Sewer System. The Temporary Construction Easement to be provided by Lessee at no cost. Lessor agrees that during its occupancy of the Subject Property, it shall make a good faith effort and take all reasonable actions necessary to not disrupt the normal day-to-day use of the Subject Property. Section 4.8 Sanitary Sewer System. In the event the Sanitary Sewer System is not completed by March 1, 1998, subject to Unavoidable Delays, and the Lessee is ready to "Hook Up" the Leasehold Improvements and utilize the Sanitary Sewer System for the purpose of operating the Leasehold Improvements, then Lessor, at its sole cost, shall provide an alternative sewer system which will allow Lessee to obtain a temporary Certificate of Occupancy and allow Lessee to operate the Project as anticipated under the Lease. ARTICLE V RENT Section 5.1 Amount of Rent. The Lessee covenants that it shall pay to the Lessor as Rent for the Subject Property the greater of the Minimum Annual Rent or Percentage Rent: (a) Minimum Annual Rent. Commencing on the Possession Date and continuing throughout the Lease Term, Minimum Annual Rent for each Lease Year during the Lease Term, payable as set forth in Subsection (c) below and, adjusted in accordance with Section 5.2 of this Article, and Section 5.3, if applicable, as follows: 28 (i) $200,000 for Lease Years 1 and 2 (ii) $300,000 for Lease Years 3 and 4 (iii) $400,000 for each and every Lease Year thereafter. (b) Percentage Rent. The Percentage Rent shall be an amount equal to the following percentage of Gross Revenue: (i) 5% of Gross Revenue up to Twenty Million Dollars ($20,000,000), and (ii) 6% of Gross Revenue in excess of Twenty Million Dollars ($20,000,000). (c) Manner of Payment of Percentage Rent or Minimum Annual Rent. The Minimum Annual Rent due for Lease Years One (1) and Two (2) shall be paid, in full, on the last day of the respective Lease Year in which said Rent became due. Thereafter, commencing with the first day of the Twenty -Seventh (27) month and on the first day of each month and every month thereafter during the Lease Term (and after the termination or expiration thereof for such additional periods as may be necessary to comply with this Article), Lessee shall provide Lessor a statement of its Gross Revenue signed by an officer of Lessee for the month commencing approximately Sixty (60) days prior and shall pay to Lessor the greater of: (i) one/twelfth of the Minimum Annual Rent then in effect pursuant to Section 5.1(a) hereinabove, or (ii) Five (5) percent of the Gross Revenue for the month commencing approximately Sixty (60) days prior. At such time as the cumulative monthly Gross Revenue in any given Lease Year exceed Twenty Million Dollars ($20,000,000), Lessee shall pay the greater 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 Revenue for the month commencing approximately Sixty (60) days prior. For example, on the first day of the 27th month, Lessee shall pay to Lessor one - twelfth of the Minimum Annual Rent or Five (5) percent of Gross Revenue of the Twenty -Fifth (25") month. On the first day of the Twenty -Eighth (28th) month, Lessee 29 shall pay one -twelfth of the Minimum Annual Rent or Five (5) percent of Gross Revenue for the Twenty -Sixth (26') month. If in the Thirty -Third (33') month Gross Revenue for the Lease Year (months Twenty -Five (25) through Thirty -Three (33) in this example) exceed Twenty Million Dollars ($20,000,000), on the first day of the Thirty -Fifth (35") month, Lessee shall pay Lessor the greater of one -twelfth of the Minimum Annual Rent or Six (6) percent of Gross Revenue of the Thirty -Third (33') month. Commencing with the fourth Lease Year and each and every Lease Year thereafter during the Lease Term (and after the termination or expiration thereof for such additional periods as may be necessary to comply with this Article), within Sixty (60) days after the end of every Lease Year, Lessee shall deliver to Lessor a statement of the Gross Revenue for the preceding Lease Year signed by a Certified Public Accountant along with the additional amount of Percentage Rent, if any, which is due from Lessee to Lessor for that preceding Lease Year. In the event that the statement of Gross Revenue for the preceding Lease 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 Rent paid and the actual Percentage Rent due in the form of a rent credit to Lessee for the next subsequent monthly installments of Rent due hereunder. Section 5.2, Rent Escalation. On the first day of the Tenth (10`'') Lease Year, and at Ten (10) year intervals thereafter, throughout the rest of the Lease -Term, the Minimum Annual Rent shall be increased as set forth in this Section 5.2 by the greater of: (i) increases in the Consumer Price Index, as such increase is calculated in Subsection 5.2(a) herein, 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). The index numbers referred to in Subparagraph (a), below, will be taken from the Consumer Price Index, except as set forth in Subparagraph (b), below: 30 (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 greater than the Minimum Annual Rent, Lessee shall pay this greater amount yearly as the Minimum Annual Rent until the time of the next rental adjustment as called for in this paragraph. In no event shall any rental adjustment called for in this paragraph result in a Minimum Annual Rent which is less than the Minimum Annual Rent in effect at the time of the adjustment increased by One Hundred Thousand Dollars ($100,000). (b) If the Consumer Price Index is discontinued during the Lease Term, the remaining rental adjustments called for in this paragraph shall be made using the formula set forth in Subparagraph (a), above, but substituting the index numbers for the statistics of the Bureau of Labor Statistics of the United States Department of labor that are most nearly comparable. If the Bureau of Labor Statistics of the United States Department of Labor ceases to exist or ceases to publish statistics concerning the purchasing power of the consumer dollar during the Lease Term, the remaining rental adjustments called for in this paragraph shall be made using the most nearly comparable statistics published by a recognized financial authority selected by Lessor. Section 5.3. Minimum Annual Rent in the Event of Extension. In the event Lessee elects to extend the Initial Term, then prior to the expiration of the Initial Term and some time during the 44th Lease Year, the Parties shall cause to be made appraisals of the Fair Market Rent of the Subject Property according to the provisions set forth below, for the purpose of adjusting the Minimum Annual Rent while maintaining the Percentage Rent payments as provided in Section 5.1(b) herein: (a) Appraisals shall be made by Three (3) real estate appraisers, each of which (i) shall be a member of the American Institute of Real Estate Appraisers, and (ii) shall have not less than Ten (10) years experience in managing and appraising real estate. One appraiser shall be selected and appointed by the Lessor (the "Lessor's Appraiser"), and shall be paid by Lessor, one shall be selected and appointed by the 31 Lessee (the Lessee's Appraiser") and shall be paid by the Lessee; and the third shall be selected and appointed by the first 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 Appraiser and the Lessee's Appraiser to agree on the Third Appraiser within Fifteen (15) 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 Ten (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 make the appointment, then the appraiser appointed by the party not in default shall appoint the second appraiser, and the two appraisers so appointed shall appoint the Third Appraiser. If the first two appraisers so appointed shall fail to agree on such third appraiser within Fifteen (15) days after their appointment, the Third Appraiser shall be appointed in the same manner provided in Subsection 5.3(a). (c) After appointment, the three appraisers, after having been duly sworn to perform their duties with impartiality, shall proceed promptly to prepare an appraisal of the Fair Market Rent of the Subject Property. The Fair Market Rent determined by the appraisers shall be binding and conclusive on the Lessor and the Lessee. The appraisers shall have the right, by majority vote among them, to determine the procedure to be adopted in arriving at the Fair Market Rent, and may, in their discretion, dispense with formal hearings, it being agreed that their task will be solely that of appraisal. (d) If prior to the expiration of the Initial Term the Fair Market Rent has not been determined for any reason, the Lessee shall continue to pay 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 Rent has been determined, the Minimum Annual Rent will be increased as provided retroactively to the expiration date of the Initial Term, and the Rent payments shall be recalculated in accordance with Section 5.1(c). If the adjusted Minimum Annual Rent results in Rent 32 due Lessor, Lessee shall pay to Lessor with the next installment of Rent, the amount of Rent due, if any. In no event shall the adjusted Minimum Annual Rent result in a decrease in the Minimum Annual Rent in effect for the year prior to the expiration of the Initial Term. Section 5.4. Security Deposit. In addition to the Rent as described in this Article, and simultaneously with the execution of this Lease Agreement, the Lessee shall deposit with the Lessor One Hundred Thousand and no/100 Dollars ($100,000.00) as a security deposit (the Security Deposit). The Security Deposit shall be placed by the Lessor in an interest bearing account with all interest earned thereon being credited to Lessee, subject to a default by Lessee, with said interest earned remaining in said escrow account until such time as the rent adjustments are calculated in accordance with the provisions of Subsection 5.2 and 5.3, if applicable. The Security Deposit will be segregated in an interest bearing escrow account and not commingled with the Lessor's general funds. Commencing with the rent adjustment occurring on the Tenth (10th) anniversary of the Possession Date, and on every subsequent rent adjustment thereafter, the Security Deposit shall also be adjusted as follows: (i) At the time of increase in the amount of Minimum Annual Rent payable, then the Lessor shall retain from the total amount of interest earned on the Security Deposit such amount as may be necessary to increase the Security Deposit so that the Security Deposit will be an amount equal to Fifty Percent (50 %) of the Minimum Annual Rent in effect after the adjustment. (ii) any interest earned in excess over the amount needed to so increase the Security Deposit shall be paid to the Lessee. (iii) in the event the amount of interest available under (i) above is insufficient to adjust the amount of the Security Deposit as provided herein, Lessee shall pay such amount to Lessor within Thirty (30) days of Lessor's written notice requesting such payment. The Security Deposit shall be considered as security for the payment of all of Lessees obligations, covenants and agreements under this Lease. Within Thirty (30) 33 days after either this Lease expires or upon the earlier termination of this Lease Agreement (whichever applies), the Lessor shall (provided that the Lessee is not in material default under the terms of this Lease) return the Security Deposit to the Lessee less any portion that the Lessor shall have used to make good any default of Lessee. In the event of any such default by the Lessee, Lessor shall have the right, but shall not be obligated, to apply all or any portion of the Security Deposit to cure the default, in which event the Lessee shall be obligated to deposit with the Lessor the amount necessary to restore the Security Deposit to the amount in effect prior to the deduction. Section 5,5, Place Of Payment. The Lessee shall pay all Rent to Lessor in Iawful money of the United States of America at a place the Lessor shall from time to time designate by notice to the Lessee, and in the absence of such designation at the office of the Lessor at City Hall. Rent and all other sums payable to the Lessor under this Lease Agreement shall bear interest at the rate equal to the Prime Interest Rate from and after Thirty (30) days from the date when the Rent shall become due and payable and until paid. Section 5.6. Rent To Be Without Deduction. This Lease Agreement shall be deemed and construed to be a triple net lease, and the Lessor shall receive all Rent, and all other payments to be made by the Lessee free from any charges, assessments, Impositions, expenses or deductions of any nature with the exception of those items set forth within this Lease Agreement, The Lessor shall not be called upon to make any expenditure for the maintenance, repair or preservation of the Leasehold Improvements. With the exception of any setoff allowable under the terms of this Lease, in no event shall there be any deduction of any nature from Rent due the Lessor and no defense, setoff shall be made against Rent in any proceeding for the collection of Rent. Section 5.7. Payment of Rent In Event of Loss or Damage. In the event of loss or damage to all or any part of the Leasehold Improvements or interruption of the Lessee's business, the Rent shall not be abated but the payment thereof shall be subject to Unavoidable Delay as provided in Section 44.2 hereof, 34 Section 5.8. Alternative Rent Payment Schedule. Lessor agrees to evaluate the proposal proffered by Lessee in connection with the disposition of the Parrot Jungle property located in Pinecrest, Florida, pertaining to an alternative rent payment schedule ("Alternative Rent"). It is hereby agreed that if such Alternative Rent is not expressly prohibited by any local, state, or federal law or regulation and if Lessor, at Lessor's sole discretion, determines that such proposal is acceptable to the Lessor, this Article may be modified in accordance with said Alternative Rent. ARTICLE VI MORTGAGES AND MORTGAGEES Section 6.1. Leasehold Mortgage. (a) Notwithstanding the provisions set forth in Article VIII hereof regarding any Transfers (as defined in Section 8.20), but subject to the provisions of this Article VI, (provided that Lessor has not notified Lessee in writing that an Event of Lessee Default has occurred); Lessee shall have the right during the Lease Term, to encumber the Lessee's Leasehold Estate by Mortgage, for the sole 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 Lessee, and (by acceptance of the Leasehold Mortgage) any Leasehold 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 Lessee 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, shall , by virtue of it, acquire any greater rights in the Subject Property than the Lessee has under this Lease. 3, The Leasehold Mortgage shall be expressly subject and subordinate to all conditions and covenants of this Lease and to 35 the rights of the Lessor. The Leasehold Mortgagee of any Leasehold Mortgage and the owner of any indebtedness secured by the Leasehold Mortgage, upon acquiring Lessee's Leasehold Estate shall take the same subject to the covenants of this Lease. 4. The Leasehold Mortgage shall expressly provide that the Leasehold Mortgagee shall notify Lessor of default by Lessee under the Leasehold Mortgage prior to commencing foreclosure proceedings. 5. That any right or remedy available to any Leasehold Mortgagee as provided in Article VI shall be deemed to apply in all respects to any affiliated designee or nominee of such Leasehold Mortgagee. 6. That the Lessor and any mortgagee of Lessor shall execute and deliver to any Leasehold Mortgagee a non -disturbance agreement in form and substance reasonably satisfactory to such Leasehold Mortgagee and Lessor. 7. That as expressly prohibited by the provisions of this Article VI, any Leasehold Mortgage may be upon such terms and conditions as the Lessee and Leasehold Mortgagee may agree. In no event may the amount of such financing or refinancing exceed the greater of: (a) Eighty (80%) of the Fair Market Value of the Leasehold Estate and all the Improvements thereon, or (b) the Total Construction Costs and/or Replacement Costs ("Replacement Costs" are defined 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 verified copy of any Leasehold Mortgage, and/or any amendment, modification or extension thereof, together with the name and address of the owner and holder thereof. Lessee may not encumber Lessee's Leasehold Estate as security for any indebtedness of Lessee with respect to any other property now or hereinafter owned by Lessee; except that Lessee may so encumber same as additional 36 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 satisfied, 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 nor 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 Lease, or waive any rights or consents it may 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 performed 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 Default; and Leasehold Mortgagee shall have failed to remedy such default or to acquire Lessee's Leasehold Estate created hereby or to commence foreclosure or other appropriate proceedings in the nature thereof, all as ---set forth in, and within the time specified by, this Article VI. (iii) Subject to the provisions of subparagraph (iv) immediately below, Leasehold Mortgagee shall have the right, but not the obligation, at any time prior to termination of this Lease, to pay all of the Rent due hereunder, to provide any insurance, to pay any taxes and make any other payments, to make any repairs and improvements, to continue to construct and complete the Leasehold Improvements, and do any other act or thing required of Lessee hereunder, and to do any act or thing which may be necessary and proper to be done in the performance and observance of the covenants, conditions and agreements hereof to prevent the termination of this 37 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 Lessee instead of by Leasehold Mortgagee. Any act or inaction by a Leasehold Mortgagee shall be at the reasonable discretion of the Leasehold Mortgagee. (iv) Should any Event of Lessee's Default under this Lease occur, Leasehold Mortgagee shall have Sixty (60) days after receipt of notice from the City Manager setting forth the nature of such Event of Lessee's Default, to remedy same and, if the default is such that possession of the Subject Property may be reasonably necessary to remedy the default, Leasehold Mortgagee shall, within such. Sixty (60) 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 have fully cured any default in the payment of any monetary obligations of Lessee under this Lease within such Sixty (60) day period and shall continue to pay currently such monetary obligations as and when the same are due, (bb) Leasehold Mortgagee shall within Six (6) months of the 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 Lessee's Leasehold Estate created hereby or commenced foreclosure or other appropriate proceedings in the nature thereof within such Sixty (60) day period or prior thereto, and shall be diligently and continuously prosecuting any such pros tidings to completion. All rights of the City Manager to terminate this Lease as the result of the occurrence of any such Event of Lessee's Default shall be subject to and conditioned upon the City Manager having first given Leasehold Mortgagee written notice of such Event of Lessee'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 proceedings in the nature thereof as set forth in and within the time period specified by this subparagraph (iv). 38 (v) An Event of Lessee's Default under this Lease which in the nature thereof cannot be remedied by Leasehold Mortgagee shall be deemed to be 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 Leasehold Estate or commenced foreclosure or other appropriate proceedings in the nature thereof; (bb) Leasehold Mortgagee shall diligently and continuously prosecute any such proceedings to completion; (cc) Leasehold Mortgagee, within such Sixty (60) day period, shall have fully cured any default which does not require possession of the Subject Property, including a default in the payment of any monetary obligations of Lessee under this Lease and shall thereafter continue to faithfully perform all such obligations which do not require possession of the Subject Property; and (dd) within six (6) months 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 Leasehold Mortgagee is 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 times specified 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 Lease, 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 any such prohibition. (vii) The City Manager shall mail to Leasehold Mortgagee a duplicate copy by certified mail of any and ail notices which the City may from time to time give to or serve upon Lessee pursuant to the provisions of this Lease; No notice by the City 39 Manager to Lessee hereunder shall be deemed to have been given unless and until a copy thereof has been mailed to the Leasehold Mortgagee. (viii) Foreclosure of a Leasehold Mortgage or any sale thereunder, whether by judicial proceedings or by virtue of any power of sale contained in the Leasehold Mortgage, or any conveyance of the Leasehold Estate 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 Leasehold Mortgagee, or any other foreclosure sale purchaser, as tenant hereunder; provided, that Leasehold Mortgagee or any such foreclosure sale purchaser shall employ an Acceptable Operator within Six (6) months of the date of such foreclosure, sale or conveyance, and shall continue to employ an Acceptable Operator throughout the Lease Term. Further, provided, that in the event there are two or more Leasehold Mortgages or foreclosure sale purchasers (whether the same or different Leasehold Mortgages), the City shall have no duty or obligation whatsoever to determine the relative priorities of such Leasehold Mortgages or the rights of the different holders thereof and/or foreclosure sale purchasers. (ix) Subject to the restrictions and limitations imposed on the Lessor by the Charter of the City of Miami and the provisions of Section 6.2, Lessor and Lessee shall cooperate in including in this Lease by suitable amendment from time to time any provision which may be requested by any proposed Leasehold Mortgagee, or may otherwise be reasonably necessary, to implement the provisions of this Article VI; provided, however, that any such amendment shall not in any way affect the Lease Term. Section 6.2. No Waiver of Lessee's Obligations or City's Rights. Nothing contained herein or in any Leasehold Mortgage shall be deemed or construed to relieve Lessee from the full and faithful observance and performance of its covenants, conditions and agreements contained herein, or from any liability for the non- observance or non-performance thereof; or to require or provide for the subordination to the lien of such Leasehold Mortgage of any estate, right, title or interest of the City 40 in or to the Project or this Lease. Nothing in this Lease Agreement shall be deemed an agreement on the part of the Lessor to subordinate its fee simple interest in the Subject Property to the lien of any Leasehold Mortgage placed on the Lessee's Leasehold Estate. ARTICLE VII ADDITIONAL CONDITIONS OF LEASE AGREEMENT AND RESTRICTIONS UPON USE OF SUBJECT PROPERTY Section 7.1. Certain Conditions Of Leasing. For the Lessee itself and every other Person who is a beneficiary of the Lessee or a permitted successor in interest in or to any part of the Subject Property, and who is able to control the use or leasing of the Subject Property, and Subtenants, shall be subject to the following covenants and agreements which shall run with the Subject Property: (a) Devote the Subject Property only to those uses specified in this Lease Agreement and ancillary and related uses allowed by Applicable Law; and (b) Not discriminate in violation of any Applicable Laws upon the basis of race, color, religion, sex, or national origin in the sale, lease or rental, or in the use or occupancy of the Subject Property, or the Leasehold Improvements erected or to be erected on it or on any part of it. Section 7.2. Mitigation of Impact on Adjacent Residential Areas. (a) Lessee shall retain the services of an acoustical consultant and a lighting consultant to provide technical design input related to the site and facilities construction plans for the Leasehold Improvements to assist in mitigating the off -site impact of amplified sound and light on existing adjacent residential neighborhoods. Based on the recommendations of said consultants, the 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: (i) Design and evaluate all site lighting to avoid significant adverse off -site impacts to the north of the Subject Property; and 41 (ii) Electronically amplified sound emanating from spectator bowls and amphitheaters and/or paging systems shall be directed so that, except as permitted in accordance with subsection (j) 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 pm and Sixty (60) dba between the hours of 10:00 pm to 7:00 am, as measured from the adjacent residential neighborhood boundary; and (iii) All spectator bowls and amphitheaters shall be designed and oriented to minimize sound impact on adjacent residential neighborhoods; and . (iv) Limit the frequency of special events wherein the entire Subject Property is closed to the general public during normal hours of operation ("Special Events") to Four (4) per calendar month. Lessee may obtain permission to conduct Ten (10) additional Special Events in accordance with the requirements of a Class l Special Permit, as provided for in the Code of the City of Miami. Special Events held during the week (Monday, Tuesday, Wednesday and Thursday), will not be subject to any restrictions pertaining to electronically amplified sound until 12:00 AM. After 12:00 AM, electronically amplified sound emanating from spectator bowls and amphitheaters and/or paging systems shall be directed so that amplification of such sound emanating from within these bowls and amphitheaters shall not exceed Sixty (60) dba as measured from the adjacent residential neighborhood boundary. Special Events held during the weekend (Friday, Saturday and Sunday) and holidays will not be subject to any restrictions pertaining to electronically amplified sound until 1:00 AM. After 1:00 AM, electronically amplified sound emanating from spectator bowls and amphitheaters and/or paging systems shall be directed so that amplification of such sound emanating from within these bowls and amphitheater shall not exceed Sixty (60) dba as measured from the adjacent residential neighborhood boundary. Notwithstanding anything herein to the contrary or the foregoing, in addition to the Four (4) Special Events permitted hereunder per calendar month and the Ten (10) permitted pursuant to a Class I Special Permit, Lessee is permitted to have Six (6) additional Special Events per year wherein none of the restrictions stated herein including the limitations set forth in Subsection 7.2(a)(ii) above shall apply; provided, 42 however, that one such Special Event shall be held on the Fourth of July and another shall be on New Year's Eve. (v) Public parking on the Subject Property shall be screened to minimize impact of head lights from automobiles on adjacent residential property; and (b) Additionally, 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: (i) Except for trees or other vegetation and Two (2) icons and Two (2) non -habitable towers (subject to the City Manager's review), the Leasehold Improvements constructed at the Subject Property shall not exceed a height of Fifty - Five (55) feet above flood criteria; and (ii) At least Sixty -Six and Two/Thirds (66-2/3) percent of the Subject Property is to be landscaped as open gardens, water, trails, exhibits, posing areas, parks and walkways; and (iii) Mechanical equipment and major utility structures are to be screened from views from upper level apartments in high rise structures located in residential areas proximate to the Subject Property; and (iv) Additional landscaping and earth berms may be added to the north shoreline and east boundaries of the Subject Property in the event it becomes necessary to help buffer the Leasehold Improvements from the residential areas proximate to the Subject Property; and (v) Project related commercial signage directed towards off -site locations shall not be oriented towards adjacent residential neighborhoods to the north of the Subject Property. Section 7.3. Restrictive Covenants. 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 run with the Subject Property and the Adjacent Property (as the case may be) throughout the Lease Term. The Parties recognize, however, that the development and operation of the Subject Property and the Leasehold Improvements in a manner which is in the best interest of both Parties may 43 from time to time require the confirmation, clarification, amplification, or elaboration of this Lease in order to deal adequately with circumstances which may not now be foreseen or anticipated by the Parties. The Lessee and the City Manager reserve unto themselves the right to enter into such interpretive, implementing or confirmatory agreements from time to time as they may deem necessary or desirable for any such purpose without obtaining the consent or approval of any Person or entity not a party to this Lease, except as may be expressly otherwise provided in this Lease or by law. Section 7.4 Additional Conditions and Restrictions Upon Use of Subject Property. (a) Lessee hereby agrees that the Subject Property shall not be used for the following: 1. the rental, operation and/or sale of jet skis and/or any similar motorized personal watercraft vessels; and/or 2. any unlawful or illegal business, nor shall "adult video" and/or "adult" bookstores be allowed to operate upon the Subject Property. 3. Lessee agrees that if casino gambling shall in the future become legal in the City of Miami, the Subject Property hereby demised shall not be used for casino gambling, or games of chance or reward, unless: (i) Lessee obtains the prior consent of the Lessor, which consent may be withheld at the sole discretion of the City Commission; and (ii) if the Lessor consents, the parties shall in good faith negotiate an appropriate modification or amendment to this Lease, permitting such use and providing for the payment by the Lessee to the Lessor, as additional rent, of an amount to be negotiated by the parties. (b) Permitted Uses Upon Subject Property. The uses permitted on the Subject Property are: a destination visitor attraction, botanical garden attraction providing for flora and fauna, open spaces, pathways, special exhibit areas, related theme shows, interactive and educational environments, animal habitats, related uses, 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 44 and/or entertainment facilities similar to the Project), banquet facilities and related services; amphitheaters, 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 food or beverages, merchandise, and services ancillary to attractions and/or entertainment facilities similar to the Project. (c) Alterations, Modification to Leasehold Improvements After Completion of Phase II. Notwithstanding the provisions of Section 7.4(b) above, the Lessee hereby agrees that the character and type of amenities, attractions or facilities shall at all times during the Lease Term constitute primarily a botanical garden and shall conform to the Development Plans, as such plans are approved by the City Commission through the Major Use Special Permit process, and arty additions or modifications to the Leasehold Improvements after completion of Phase II which substantially alters the botanical garden character of the amenities, attractions or facilities shall be subject to City Commission review and approval. (d) Conditions Pertaining to the Use of the Subject Property and the Adjacent Property. The Parties acknowledge and agree that the Adjacent Property is at the time of execution of this Lease devoted to non-commercial use, and that, consequently, the manner in which the Adjacent Property is or may be used from time to time will have a direct and material effect on the use and value of the Subject Property and the Leasehold Improvements. In consideration of the foregoing and of the rentals reserved by it under this Lease, the City, as the owner of the Adjacent Property, for itself, its successors and assigns, covenants and agrees with Lessee, its successors and assigns that: (i) The City will not permit any permanent use upon the Adjacent Property which would detract from the use of the Subject Property, or which would materially obstruct the northern view of Biscayne Bay from the Subject Property; and (ii) The City will not, without first obtaining the written consent of the Lessee, which consent shall not be unreasonably delayed or withheld, (1) construct any fence or barrier between the Adjacent Property and the Subject Property, (2) make 45 or permit substantial permanent alteration in the Adjacent Property or permit any permanent structure on the Adjacent Property which will substantially adversely affect the access to and from the Subject Property; and (iii) 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 Lessee so that the making of improvements to and the use of the Adjacent Property will not materially adversely impact the Lessee's and any Subtenant's use and enjoyment of the Subject Property. (e) Enforceability. It is intended and agreed hereby that the restrictive covenants contained in this Section 7.4 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 benefit and in favor of, and enforceable by, either the City and/or Lessee; provided however, that such covenants shall be binding on Lessee, and the City, and their respective successors in interest and assigns, only for such period as each shall have (i) fee title to the Subject Property and the Adjacent Property or any part of either, as to the City, and (ii) the Lessee's Leasehold Estate herein demised to Lessee, as to Lessee. Section 7.5. Signage. 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) Directional and/or informational signs pertaining to the Project throughout Watson Island in accordance with an adopted, uniform directional signage program established for the island; and (ii) One icon offsite, on the south side of Watson Island; and (iii) Directional and/or informational sign(s) in the State right-of-way, subject to the approval of the State of Florida; and The exact form of all signage shall be subject to and in compliance with the requirements for a Major Use Special Permit. 46 ARTICLE VIII RESTRICTIONS ON TRANSFERS OF LESSEE'S LEASEHOLD ESTATE Section 8.1. Representations as to Development of the Project. The Lessee represents and agrees for itself, and its permitted 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 Lease Date to "Parrot Jungle and Gardens 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 which resulted in the award of this Lease; arid (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 (c) the qualifications and identity of the Lessee and its present stockholders are of particular concern to the 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 Lease 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" (as hereinafter defined) whereby Control of the Corporation is changed other than an Owner whose shares are publicly traded; or (iii) any merger, consolidation or sale or lease of all or substantially all of the assets of Lessee or of any Owner, other than an Owner whose shares are publicly traded; or 47 (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, more than Fifty percent (50%) of the stock of the Lessee, but shall not include an Owner whose shares are publicly traded. (c) "Owner whose shares are publicly traded" means an Owner: (i) who has filed an effective registration statement with the Securities & Exchange Commission (or its successor) with respect to the shares of any class of its voting stock or of all classes of any other form of ownership interest which includes voting rights; and (ii) whose voting stock and other form of ownership interest described in clause (i) is listed for trading purposes on a securities exchange subject to the regulatory jurisdiction of the Securities & Exchange Commission (or its successor) or is publicly traded over the counter. Section 8.3. Transfers. Except as permitted pursuant to subparagraphs (a) through (e) hereof, and subject to the provision of Section 8.5, no Transfer may be made, suffered or created by Lessee or any Owner. The following Transfers shall be permitted hereunder (a) Any Transfer by Leasehold Mortgage to an investor. (b) Any Transfer directly resulting from the foreclosure of a Leasehold Mortgage or any Transfer made by the purchaser at foreclosure of a Leasehold Mortgage, provided that such purchaser within Six (6) months after taking possession of the Subject Property, 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 unreasonably withheld or delayed, provided that in connection with such Transfer, the Project shall be directly managed by an Acceptable Operator. 48 (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 Planning purposes. The parties hereby acknowledge and agree that anything herein to the contrary notwithstanding, the "going public" by Lessee, including, but not limited to, the filing of a registration statement with the Securities & Exchange Commission, the creation of one or more classes of stock and the offering of shares of stock to the public for purchase, shall not constitute a Transfer hereunder and shall not require the consent of the City so long as at all times during the Lease 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 Lease, (ii) Lessor 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 from assigning or selling its right, title and interest under this Lease with respect to a portion of the Subject Property without 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 terms 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 cause to be given to the Lessor written notice (including all information necessary for the City Manager to make an evaluation and recommendation to the City Commission as to the proposed Acceptable Operator 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 49 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 same. If the Lessor shall not consent to a Transfer, the Lessor shall state the reasons 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 same within Thirty (30) days after the date of Transfer. (b) Lessee shall from time to time throughout the Lease Term of this Lease, as the Lessor shall reasonably request, furnish 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 indicated by the records of Lessee; or copies of Lessee's annual corporate returns. Notwithstanding the foregoing, the information required by this subparagraph (b) shall not be required to be furnished with respect to the shareholders of any Owner whose shares are publicly traded. Section 8.5 Criteria for Consent for Assignments and/or Purchase of Subject Property. It is expressly understood and agreed that the City Commission may reasonably withhold its consent to any Transfer using the following criteria: (i) The net assets of the Transferee immediately prior to the Transfer shall not be Tess than the greater of: the net assets of Lessee immediately prior to the Transfer, or the net assets of Lessee on the Lease Date adjusted for inflation; (ii) Such Transfer shall not adversely affect the quality and type of business operation which Lessee has conducted theretofore; (iii) Such Transferee shall possess qualifications for the Lessee's business substantially equivalent to those of Lessee and shall have demonstrated recognized experience in successfully operating such a business, including, without limitation, experience in successfully operating a similar quality business; 50 (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 shall be effective unless and until: (a) all Rent, 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 covenants 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 assigns, and especially for the benefit of the City, expressly assume all of the obligations of Lessee under this Lease and agree to be subject to all conditions and restrictions to which Lessee is subject; provided, however, that any Leasehold Mortgagee, or any affiliated designee or nominee thereof, shall not be required to assume any personal liability under this Lease with respect to any matter arising prior or subsequent to the period of such Transferee's actual ownership of the Leasehold Estate, (it being understood, nevertheless, that the absence of any such liability for such matters shall not impair, impede or prejudice any other right or remedy available to the City for default by Lessee). 51 Section 8.7 Transfers of the City's Interest. At the Lessee's request, Lessor shall provide the Lessee copies of any and all agreements or contracts pertaining to the total or partial sale, assignment, conveyance, mortgage, trust or power, or other transfer in any mode or form of or with respect to the City's reversionary or fee interest in the Subject Property or any part thereof, or any interest therein, or any contract or agreement to do any of the same, to any purchaser, assignee, mortgagee, trustee or any other transferee. Lessor hereby agrees to incorporate the terms and conditions set forth in this Lease Agreement, 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 assume 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. Lessee shall attorn to any transferee of the City's reversionary or fee interest in the Subject Property or any part thereof, or any interest therein, (whether such transferee acquires such interest by way of a total or partial sale, assignment, conveyance, mortgage, trust or power, or any other transfer in any mode or form) provided that prior to such transfer by the City, the City shall cause to be executed in favor of and delivered to Lessee by such transferee a non -disturbance agreement reasonably satisfactory to Lessee. Section 8.8 Acceptance of Rent from Transferee. The acceptance by Lessor of the payment of Rent following any Transfer 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 52 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. (b) In the event Lessee "goes public" and 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 %) percent of total consideration attributable to the initial public offering. ARTICLE IX EASEMENTS Section 9.1. Easements. (a) Easements Reserved by Lessor. 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 power lines, telephone lines, storm and sanitary sewers and other utility lines and facilities, in 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 Lessee from time to time during the Lease Term. Within a reasonable time after the Lease Date, Lessor shall provide Lessee the necessary survey and other information so as to fix the location(s) of any easements required for the operation of the Subject Property and/or Watson Island. (b) Easements Granted to Lessee. The City grants unto Lessee, its successors and assigns the following: (i) the non-exclusive right and easement (the "Lessee Utility Easement") to install, operate, maintain, repair, relocate, replace and remove utility 53 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 Lessee and approved by the Lessor from time to time during the Lease Term; (ii) the non-exclusive right for unobstructed vehicular access to and from the Subject Property to MacArthur Causeway going west under the MacArthur Causeway to MacArthur Causeway going East as may be approved by the City Manager from time to time; (iii) the non-exclusive right to use portions of Watson Island in common with the public, subject to the City's right to restrict 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 not limited to, the baywalks, sidewalks and other open spaces; (iv) the reasonable right and easement to enter onto those portions of the Watson Island for the purpose of performing maintenance and repairs to the Leasehold Improvements, such maintenance and repairs to be performed in a manner which will minimize disruption to others; and (v) the non-exclusive rights and easements for installation, maintenance, repair and replacement of utility facilities and for pedestrian and vehicular access to and from the Adjacent Property to the Subject Property at such locations as may be approved by the Lessor from time to time. It is the intent of the Parties to this Lease Agreement that the Leasehold Improvements be confined to the limits of the Subject Property. 54 (c) Duration of Easements. Unless a shorter term 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 Party covenants and agrees that from time to time at the request of the other party, it shall execute and deliver such additional documents or instruments confirming the rights and easements granted and reserved in this Article, or more precisely fixing their location as such requesting party shall deem to be necessary or desirable. ARTICLE X PAYMENT OF IMPOSITIONS Section 10.1. Payment of Impositions. The Lessee agrees to pay or cause to be paid, all Impositions before any tine, penalty or interest is added for nonpayment. If by law any Imposition is payable or may, in the case of taxes, at the option of the taxpayer be paid in installments (whether or not interest shall accrue on the unpaid balance of the Imposition), the Lessee may pay the same (and any accrued interest on the unpaid balance of the Imposition), in installments before any fine, penalty, interest or cost is added for the nonpayment of any installment and interest. Any Imposition relating to a fiscal period of the taxing authority, a part of which period is included before the Possession Date and part of which is included after the Possession Date shall be adjusted as between the Lessor and the Lessee as of the commencement of the Lease Term, so -that the Lessee shall pay that proportion of the Imposition attributable to that part of the fiscal period included in the Lease Term, and the Lessor shall pay the remainder, if applicable. Any Imposition relating to a fiscal period of the taxing authority, a part of which period is included within the Lease Term and a part of which is included in a period of time after Lease Term shall be adjusted as between the Lessor and the Lessee as of the termination of the Lease Term, so that the Lessee shall pay that proportion of the Imposition attributable to that part of the fiscal period included in the term of this Lease, and the Lessor shall pay the remainder, if applicable. 55 Section 10,2 Payment of Ad Valorem Real Property Taxes. Notwithstanding the above, Lessee agrees that in the event the Subject Property, Lessee's Leasehold Estate or the Leasehold Improvements, becomes subject to ad valorem taxation, Lessee, at the option of the City Manager, shall enroll in the Dade County Ad Valorem Tax Payment Plan (the "Tax Plan"). Then after demand by the City Manager to enroll in the Tax Plan, failure to enroll in said plan or to make payments in accordance with the provisions of the Tax Plan shall constitute an Event of Lessee's Default under this Lease. In the event the Tax Plan is discontinued, the City Manager and Lessee shall develop a payment method to insure the monthly or quarterly payment of such taxes in advance of the due date. Section 10.3. Lessee's Right to Contest Impositions. (a) Lessee's Right to Contest Impositions (Excluding Ad Valorem Taxes). Anything herein to the contrary notwithstanding, Lessee shall have and retain the right to contest by legal 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, without the consent of Lessor, even if the same ultimately results in the payment of any interest, costs or penalties. Notwithstanding the above, if at any time during the last Ten (10) years of the Lease Term Lessee shall contest an Imposition (excluding ad valorem tax on the Subject Property and the 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 contested item 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. 56 (b) Lessee's Right to Contest Ad Valorem Real Property Taxes. 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 in a bank mutually acceptable to the Parties, only the 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 Term, 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 greater of: (i) Eighty Percent (80%) of the total amount shown as owed in the Combined Tax Notice from Metropolitan Dade County; or (ii) the amount of taxes Lessee believes in its good faith opinion is rightfully due, In the event Lessee is contesting the taxability of the Subject Property and/or the Leasehold Improvements, notwithstanding any provision in general law which authorizes the taxpayer to withhold payment of the tax pending resolution of the appeal, the Lessee shall pay to Dade County the greater of the amounts as set forth above, Section 10.4 Payment of Ad Valorem Taxes to the City of Miami. For the purposes of this Section 10.4, "City" shall mean the City of Miami acting in its capacity as a municipal corporation of the State of Florida providing municipal services to the Subject Property and not as "Lessor". Should the Lessee be successful in obtaining a tax exemption for either the Subject Property and/or the Leasehold Improvements, the Lessee shall, in accordance with Section 29A(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 ad valorem real property taxes would be if the Subject Property and/or the Leasehold Improvements 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 the City in accordance with the deadlines established for payment of Dade County ad valorem real property taxes. So long as the 57 City remains the Lessor, 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 XVII. In the event the City continues to provide said services but is no longer the Lessor, the City and Lessee agree that any disputes concerning the amount of City Payment in Lieu of Tax shall be submitted to the court on stipulation for the purpose of a determinative judgment. Should the City, acting in its capacity as a public agency, no longer provide municipal services to the property, including but not limited to, fire and police services, then the requirement to pay the City Payment in Lieu of Tax shall be null and void. Section 10.5 Proof of Payment. Within Thirty (30) days after the date whenever any Imposition is paid 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 XI INSURANCE Section 11.1. Insurance on the Leasehold Improvements. Beginning on the Possession Date and at all times during the Lease Term, Lessee shall, at the Lessee's sole cost and expense but for the benefit of the Lessor and the Lessee as their interests may appear, maintain the following insurance: (a) "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 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 expense of the removal of debris as a result of damage by an insured peril (collectively "Insured Property") on the Subject Property, with a maximum 58 deductible of One percent (I%) of the insured value, The Lessor and Lessee shalt be named as Loss Payees and insureds. 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 Lessee shall obtain the Lessor's approval (which approval shall not be unreasonably withheld) of the appraiser before commencement 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 resolve 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. Immediately upon receipt of the appraiser's report, the Lessee shall procure and deliver to the Lessor written confirmation from the insurer(s) evidencing the increase in insurance which may be required to comply with the provisions above. During the construction of the Leasehold Improvements, Lessee shall carry or cause to be carried Worker's Compensation Insurance and any such other insurance as may be required by law to be carried by Lessor and Lessee or either of them in connection with the construction. (b) Business Interruption insurance in the limits of which insurance, if available, shall not be less than the Minimum Annual Rent and the debt service payment for the Leasehold Improvements. Only the Lessee shall be named as a loss payee and insured. (c) Boiler and machinery insurance covering repair and replacement of all boilers and machinery serving or benefiting the Leasehold Improvements, the policies of insurance to be endorsed so as to provide use and occupancy coverage for 59 the Leasehold Improvements in such amount as may be reasonably acceptable to Lessor. The Lessor and Lessee shall be named as Loss Payees and insureds. Section 11.2. Other Insurance To Be Carried. The Lessee shall also, at the Lessee's sole cost and expense but for the mutual benefit of the Lessor and the Lessee (with Leasehold Mortgage clauses for the benefit of any Leasehold Mortgagee, which clauses shall be subject to and not inconsistent with the terms of this Lease Agreement), maintain the following insurance: (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 claims, demands or actions, 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 ($2,000,000) per occurrence combined 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 consent shall not be unreasonably withheld. Lessee 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 shalt be adjusted at the beginning of the fourth Lease Year and every three years thereafter by any increase and/or 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 Possession Date to the- anniversary date in which the adjustment is to be made. In addition to the Lessee, the Lessor shall be named as Additional Insured on the policy or policies of insurance. (b) During periods of excavation and/or construction or during periods of alteration or during periods of restoration in the event of damage or destruction or condemnation or during periods of razing or demolition at, in or on the Subject Property, the Leasehold Improvements or any part of it, All Risk Builders Risk insurance in an amount to be determined at such time. The Lessor and Lessee shall be named as insureds. 60 (c) Automobile liability insurance covering all owned, non -owned and hired vehicles used in conjunction with operations covered by this agreement. The policy or policies of insurance shall contain such limits as may be reasonably requested by the Lessor from time to time but not less than Five Hundred Thousand ($500,000) for bodily injury 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 adjustment is to be made. Only the Lessee shall be named as an insured. (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 the 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 Lessor as Additional Insured. (e) Workers Compensation Insurance in the amounts and types required by State law. Only the Lessee shall be named as an insured. (t) The Lessor reserves the right to reasonably amend the herein insurance requirements by the issuance of a notice in writing to Lessee. Section 11.3. Delivery of Insurance Policies. All public liability, Workers Compensation and employers liability policies shall be retained by the Lessee. Except as otherwise specifically provided, all other policies of insurance required to be furnished shall be held by and be payable jointly to the Lessor and the Lessee with the proceeds to be distributed in accordance with the terms of this Lease. Insurance company certificates evidencing the existence of all of these policies of insurance shall be delivered to the Lessor. • All policies of insurance required to be provided and obtained shall provide that they shall not be amended or canceled on less than Thirty (30) days prior written notice to the Lessor and all insured and beneficiaries of the policies and shall contain waiver of subrogation rights 61 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 Date and then not less than 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 insurance by the Lessor or by any of its representatives which indicates less coverage than required does not constitute a waiver of the Lessee's obligation to fulfill the insurance requirements herein. The Parties acknowledge and agree that coastal properties are often precluded from being insured by private insurers and that any casualty and windstorm insurance may have to be written through the Florida Joint Underwriters Association and/or other governmental insurance pool which may include certain prohibitions such as no replacement cost. Section 11.4. Adjustment of Loss. Subject to the requirements of any Leasehold Mortgagee, all Net Insurance Proceeds (as defined in Section 16.1) recovered on account of any damage or destruction by any casualty shall be made available for the payment of the cost of the repairs and restoration. All of the Net 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 case of the deductible) in escrow with instructions to the escrow holder that the escrow holder shall disburse the funds to the Lessee, with notice thereof to the Lessor, as the work of repair and restoration progresses upon certificates of the architect or engineer supervising the repair and restoration work that the disbursements then requested, plus all previous disbursements made from such Net Insurance Proceeds, plus the amount of any deductible, do not exceed the cost of the repairs or restoration work already completed and paid for, and that the balance in the escrow fund is sufficient to pay for the reasonably estimated cost of completing the required work of repair and restoration. 62 The escrow holder may be the lender holding the Lease Mortgage if such lender accepts said escrow; otherwise the escrow holder shall be any bank mutually agreeable to Lessor and Lessee. If the amount of the Net Insurance Proceeds is less than the cost of the required repairs or restoration work, then Lessee shall pay the excess cost; and if the amount of the Net Insurance Proceeds is greater than the cost of the required repairs and restoration work, then the excess shall be paid to and belong to the Lessee. Section 11.5. Insurer To Be Approved -Premium Receipts. All policies of insurance of the character described in Sections 11.1 and 11.2 shall be written by companies of recognized responsibility reasonably acceptable to the Lessor. On request by the Lessor, the Lessee shall provide photocopies of receipts showing the payment of premium for all insurance policies required to be maintained by this Lease Agreement. Section 11.6. Waiver of Subrogation. Lessee waives all rights to recover against the Lessor for any damage arising from any cause covered by any insurance required to be carried by Lessee, or any insurance actually carried by Lessee. The Lessee shall cause its insurer(s) to issue appropriate waiver of subrogation 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. ARTICLE 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 Gross Revenue arising or accruing by virtue of the operations conducted at or from the Subject Property, for each day of the Lease Term. At all times during the Lease Term, upon providing Two (2) business days prior written notice to Lessee or such additional time as may be reasonably necessary, all records and accounts and all other supporting records, shall be available for 63 inspection and audit by the Lessor and its duly authorized agents or representatives during the hours of 8:00 AM to 5;00 PM, Monday through Friday, and shall be in accordance with generally accepted accounting procedures. Said inspection and audit of such records and accounts shall not occur more than Four (4) tunes in any given Lease Year. Lessee must provide point of sale machines or such other cash registers or accounting control equipment deemed reasonably necessary for proper control of cash 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 tax returns covering its operations at the Subject Property, and any other governmental tax or other returns which show Lessee's sales therein, and shall, upon demand, deliver photographic copies or computer disks thereof to the Lessor. The Lessee will cooperate with the Lessor's internal auditors (or such other auditors designated by Lessor) in order to facilitate the Lessor's examination of records and accounts. Section 12.2. Audit, Upon Lessor's request which shall occur no more than once in any given Lease Year, Lessee shall deliver or cause to be delivered within Ninety (90) days of such request, to Lessor's Office of Asset 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, prepared and certified by an auditor employed at Lessee's sole cost and expense. Said Auditor shall certify that he made a complete examination of -the books, state sales tax returns, and federal income tax returns of Lessee and that such statement is prepared in accordance with generally accepted accounting principles and practices and represents the Gross Revenue of the Lessee and its Subtenants for the period indicated therein. Within Thirty (30) days of the delivery of each financial statement, Lessee shall pay to Lessor any unpaid balance of the Rent or underpayment of Percentage Rent, if any, and Lessor shall credit any overpayments, if any, towards the next payment of Rent due. In the event the Lessee fails to prepare or deliver the required Audited Financial Statement to the Lessor within the time set 64 forth above, the Lessor, upon Fifteen (15) days written notice to Lessee may elect to exercise either or both of the following remedies: a) To treat, as a default of this Lease, any such omission continuing after Thirty (30) days written notice to Lessee; and/or b) To cause an audit and/or accounting, pursuant to the provisions of this Lease to be made at the sole cost and expense of Lessee. Lessee shall pay the full 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 furnished by Lessee, and upon providing Fifteen (15) days written notice to Lessee, a complete audit to be made of Lessee and its Subtenants' accounting records in connection with the sales on, from or related to the Subject Property for the period covered by any such statement furnished by Lessee. If such audit shall disclose an underpayment of Rent, Lessee shall pay Lessor any unpaid balance within Thirty (30) days of receipt of notice from 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 the 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 Revenue and inventories of merchandise on the Lease Property in order to verify the amount of annual Gross Revenue made by Lessee in and from the Subject Property. Lessor shall not re-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 the receipt of Percentage Rent. 65 ARTICLE XIII USE OF THE SUBJECT PROPERTY AND LEASEHOLD IMPROVEMENTS AND PAYMENT TO STATE Section 13.1. Limited Representations by Lessor. (a) Lessor makes the following representations, covenants and warranties which shall survive the execution of this Lease and the taking of possession of the Subject Property by the Lessee: (i) The Lessor does not know of any latent or hidden defects affecting the Subject Property or the uses contemplated by this Lease; (ii) The Lessor does not know of any surface, ground or underground environmental waste or contamination or storage thereof nor any violation of any 'Environmental Laws" (as such term is defined in Section 20.1(b) of this Lease); (iii) That Lessor has taken all requisite actions to make this Agreement binding upon the Lessor, and the Lessor is indefeasibly seized of marketable, fee simple title to the Subject Property, and is the sole owner of and has good right, title and authority to convey and transfer all property, rights and benefits which are the subject matter of this Agreement, free and clear of all liens and encumbrances; and there are no other liens or claims on or affecting the Subject Property; (iv) There is no condemnation, environmental, zoning or other land -use regulation proceedings, which would detrimentally affect the use and operation of the Subject Property 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 other proceeding, (including, without limitation, any of the foregoing relating to violations of any Applicable Law, of any governmental authority 66 having jurisdiction of the Subject 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 Lessor's ability to perform its obligations under this Lease 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 the Lease Date, the Subject Property has been exempt from all ad valorem real property taxes and therefore no tax is due for the year 1996 and all prior years; (viii) That there is, and during the Lease Term, Lessor shall provide perpetual legal and physical ingress and egress to the Subject Property from a paved public street for vehicular traffic and perpetual legal and physical ingress and egress for pedestrian traffic. (ix) That there are no existing or pending special assessments or fees affecting the Subject Property; (x) That the Subject Property may be used and operated as set forth in this Lease, without any further City, County and State approvals with regard to Platting and Zoning (except for the Major Use Special Permit process and Concurrency determination). Furthermore, 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 representations and warranties of Lessor contained in this Lease Agreement shall 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 without the 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 signing of this Lease Agreement. Lessee shall have no duty to investigate or inquire (except with respect to the environmental condition of 67 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 Lessee 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 and make all payments promptly to the State and/or the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida (the "Trustees"), pursuant to the terms of the "Partial Modification of Restrictions" which was executed in connection with this Lease which modified Restrictions set -forth within Deed No. 19447. A copy of the Partial Modification of Restrictions and the Deed are attached hereto as Exhibit F. Lessor shall provide Lessee with adequate proof that the payment is being made to the Trustees in accordance with the Partial Modification of Restrictions. Should Lessor not make the payments when due as required pursuant to the Partial Modification of Restrictions, then Lessee may make the payment and set off the amount of said payment against the next accruing Rent payments due after providing Lessor such written notice as is required pursuant to the terms of this Lease, and providing the Lessor 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 notify the Lessee Thirty (30) days prior to when the payment is due. Should the Lessee make —the payment to the Trustees then, 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 submitting proof of such payment to the reasonable satisfaction of the Lessor, (c) Prior to the Possession Date, Lessee, at its sole cost and expense but with Lessor's cooperation, shall have the right, but not the obligation, to cause a Phase I environmental audit, and if warranted by the Phase I findings, a Phase II environmental audit of the Subject Property. If any environmental waste, 68 contamination or violations of any Environmental Laws are revealed by the Phase I and/or Phase II environmental audits, the parties shall proceed as provided for in Article 20 of this Lease. Section 13.2 Lessee's Representations. The Lessee acknowledges that it has examined the Subject Property (except for hidden or latent defects and environmental matters) and knows the physical condition of it, and subject to the provisions of Sections 13.1(a), (b) and (c) above will accept the Subject Property in its present condition and without any additional representations or warranties of any kind or nature whatsoever by the Lessor as to its physical condition. 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, 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 The Leasehold Improvements to be Open to Public. Lessee covenants that the Leasehold Improvements which are not restricted to operational, environmental or during Special Events, shall be open to admission to the general public without discrimination upon payment of such admission charge as may be charged by Lessee in it sole discretion. Lessee shall at all times during the Lease Term continuously operate Lessee's business on the Subject Property in a fiscally sound manner so as to maximize the Gross Revenue produced by the Project. Lessee will — carry on its business diligently at the Subject Property through the Lease Term and will keep the Subject Property open for business on a continual basis during the usual days and hours for such business as are customary for this type of use. Section 13.4 Compliance with Laws. The Lessee shall throughout the Lease Term, at the Lessee's sole expense, promptly comply with all Applicable Laws. The Lessee shall likewise observe and comply with the requirements of all policies of public liability, fire and all other policies of insurance in force with respect to the Leasehold Improvements. 69 Section 13.5 Right to Contest Compliance. The Lessee shall have the right to contest by appropriate legal proceeding, without cost or expense to the Lessor, the validity of any Applicable Law of the nature referred to, and if by the terms of any Applicable Law compliance may legally be held in abeyance without the incidence of any lien, charge or liability of any kind against the title to the Subject Property, the Lessee's Leasehold Estate and without subjecting the Lessee or the Lessor to any liability of whatsoever nature for failure so to comply, the Lessee may postpone compliance until the final determination of any proceedings, provided that all proceedings shall be prosecuted with all due diligence and dispatch. Section 13.6 Use of the Subject Property. During the Lease Terns, 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 entertainment attraction that promotes wholesome family fun and appreciation of nature; contributes to the economic prosperity of the community; promotes the unique culture and history of Miami and South Florida to visitors from around the world and offers an outstanding recreational facility to local residents. Section 13.7 Parkin . As a part of Phase I Leasehold Improvements, the Lessee is to construct, operate and maintain, at Lessee's sole cost and expense, a parking deck to be located on the Subject Property, adjacent to the main entrance of sufficient capacity to accommodate Five Hundred (500) cars (the 'Parking Deck"), and in addition secondary or overflow parking as indicated below. Section 13.8 Future Parking Requirements. In the event the Parking Deck is not sufficient to comply with zoning requirements, then the Lessor shall provide a site on the Southside of Watson Island of sufficient capacity to provide the additional parking required by the zoning regulations (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-Rata Costs incurred by Lessor in connection with the construction, operation and maintenance of the Southside Parking Lot. "Pro-Rata Costs" shall be defined to mean those reasonable construction costs which have been approved by the Lessee, which approval shall not be unreasonably withheld or delayed, 70 divided by the total number of spaces to be accommodated 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 for the payments, required to be made, within Thirty (30) days of receipt of an acceptable invoice from Lessor. Section 13.9 Ichimura-Miami Japanese Garden, The Lessee shall be required to maintain the Ichimura-Miami Japan Garden, the "Japanese Garden," located within the parcel within the Subject Property, as legally described and shown on Exhibit H, to a standard of quality that will, ensure its preservation as a unique and special cultural - resource for use and enjoyment by all residents of an visitors to the City. The 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 Commission of the proposed location, amenities, layout, design and construction schedule, In the event the Japanese Garden is relocated to the Adjacent Property, the Lessee shall be responsible for the maintenance and repair of the relocated Japanese Garden throughout the Lease Term to ensure the existence of the Ichimura Miami -Japan Garden. Construction associated with the relocation and/or alteration of the Japanese Garden by the Lessee shall be completed in a time period not later than the opening of Phase I Leasehold Improvements to the general public. In the event the Japanese Garden is relocated to the Adjacent Property, the Lessor agrees to grant Lessee a non-exclusive right and easement for access, ingress and egress, and the installation, operation, maintenance and repair of the relocated Japanese Garden. ARTICLE XIV REPAIRS, MAINTENANCE AND IMPROVEMENTS Section 14.1. Repair of The Leasehold Improvements, The Lessee shall throughout the Lease Term, at the Lessee's sole cost and expense, maintain in good, clean and orderly condition and repair the Subject Property and the Leasehold Improvements. The Lessee shall, at Lessee's sole cost and expense, promptly make to the Leasehold Improvements all necessary repairs, renewals and replacements, interior and exterior, structural and nonstructural, whether made necessary or caused by fire or 71 other casualty, or by ordinary wear and tear. All repairs, renewals and replacements shall be of good quality sufficient for the proper maintenance and operation of the Leasehold Improvements and shall be constructed and installed in compliance with all legal requirements of all governmental authorities having jurisdiction. The Lessee shall not permit the accumulation of waste or refuse matter, nor permit anything to be done upon the Subject Property or the Leasehold Improvements which would invalidate or prevent the procurement of all insurance policies which may at any time be required pursuant to the provisions of Article XI. All proceeds of insurance on account of any loss or damage shall, to the extent required, be applied on the cost of any repairs, renewals and replacements as provided for in this Article XIV. Nothing contained in this Lease shall impose on the Lessor the obligation to make any repairs or expend any monies for the maintenance of the Subject Property, or the renewal, replacement or repair of the Leasehold Improvements. Section 14.2. Alteration of Exterior Improvements. The following provision only applies to exterior improvements. Lessor's consent shall not be required as to any non-structural alteration, addition or change in the Leasehold exterior improvements nor to any structural alteration, addition or change involving a cost of less than One Hundred Thousand Dollars ($100,000.00) [to be adjusted every Three (3) years, commencing on the first day of the Fourth Lease Year, based upon increases or decreases (which decrease shall not result in an amount less than One Hundred Thousand Dollars ($100,000.00) ) in the Consumer Price Index, calculated from the Possession Date to the anniversary of the Possession Date on the year in which the adjustment is calculated], unless such non-structural alteration, addition, or change in the Leasehold Improvements will substantially affect the character and/or the aesthetic appearance of the Project. The Lessee shall not make or permit to be made any structural alteration of, addition to, or change in, the Leasehold Improvements, involving a cost in excess of One Hundred Thousand ($100,000.00) [to be adjusted every Three (3) years, commencing on the first day of the Fourth Lease Year, based upon increases or decreases (which decrease shall not result in an amount less than One Hundred Thousand Dollars ($100,000.00)) in the Consumer Price Index, calculated 72 from the Possession Date to the anniversary of the Possession Date on the year in which the adjustment is calculated}, without the prior written consent of the Lessor, which consent shall not be unreasonably withheld or delayed. Regardless of the cost, Lessee shall not make or permit any demolition of the structural Leasehold 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 specifications of the proposed work, an explanation of the needs and reasons for it, and a plan of full payment of the costs of it and the Lessor shall notify the Lessee of its approval or objections, as the case may be, as promptly as possible after receiving the information, but not exceeding Thirty (30) days from receipt by Lessor of such information. Failure of the Lessor to deliver written objection to Lessee within such Thirty (30) day period shall conclusively constitute Lessor's consent to the proposed work. ARTICLE XV LESSOR'S RIGHT TO PERFORM LESSEE'S COVENANTS; REIMBURSEMENT OF LESSOR FOR AMOUNTS SO EXPENDED Section 15.1 Performance of Lessee's Covenants to Pay Money. The Lessee covenants that if it shall at any time default in the payment of any Impositions pursuant to the provisions of Article X, or shall fail to make any other payment (other than Rent) due and the failure shall continue for Twenty (20) business days after written notice by Lessor to the Lessee, ("Notice of Non -Payment of Imposition") then the Lessor may, but shall not be obligated so to do, and without further notice to or demand upon the Lessee and without waiving or releasing the Lessee from any obligations of the Lessee in this Lease contained, pay any Imposition, effect any insurance coverage and pay premiums for it, or make any other payment which Lessee has improperly failed to pay as set forth in the Notice of Non -Payment of Imposition. Section 15.2. Lessor's Right to Cure Lessee's Default. Notwithstanding anything herein to the contrary as set forth in Article XVII or under this Lease, if there shall be an Event of Lessee's Default involving the failure of the Lessee to keep the 73 Leasehold Improvements in good condition and repair in accordance with the provisions of this Lease, to make any necessary 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 and welfare of the public and/or the environment, then the Lessor may proceed with any permissible action in a Court of Law having jurisdiction, but Lessor shall not have the right, to make good any such alleged 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 necessary and incidental costs, expenses and attorneys fees in connection with the performance of any acts, together with interest at the Prime Interest Rate per annum from the date of the making of advancements, shall be deemed additional Rent, and shall be promptly payable by the Lessee, in the respective amounts so advanced, to the Lessor. This reimbursement shall be made on demand, or, at the option of the Lessor, may be added to any Rent then due or becoming due under this Lease, and the Lessee covenants to pay the sum or sums with interest. ARTICLE XVI DAMAGE OR DESTRUCTION Section 16.1 Definitions. For the purposes of this Article XVI, the following words shall have the meanings attributed to them in this Section 16.1: (a) "Completely Destroyed" means the destruction of the safe, tenantable use or occupancy of a substantial portion of the — Leasehold Improvements under this Lease which damage cannot reasonably be repaired, restored or replaced within One Hundred and Eighty (180) calendar days from the date in which the damage occurred. (b) "Partial Destruction" means any damage to the Leasehold Improvements which damage can reasonably be repaired, 74 restored or replaced within One Hundred and Eighty (180) calendar days from the date in which the damage occurred. (c) "Net Insurance Proceeds" means the actual amount of insurance proceeds paid following an insured casualty to the Leasehold Improvements less all costs and expenses including reasonable attorneys' fees incurred by the Lessee and/or Lessor with respect to the collection thereof. Section 16,2, Lessee's Duty to Repair, Restore or Replace the Leasehold Improvements After Damage. In the event of damage by fire or otherwise of the Leasehold Improvements including any machinery, fixtures or equipment which are a part of the Leasehold Improvements located on the Subject Property, the Parties agree as follows: (i) In the event of Partial Destruction, within Sixty (60) calendar days of the damage (subject to reasonable and/or Unavoidable Delay), the Lessee shall use the Net Insurance Proceeds available for that purpose, together with Lessee's own funds (if the Net Insurance Proceeds are insufficient) to commence and diligently pursue to completion within One Hundred and Eighty (180) calendar days from the date the damage occurred (subject to reasonable and/or Unavoidable Delay), the repair, restoration or replacement of the damaged or destroyed Leasehold Improvements (the "Restoration Work"), and this Lease shall remain in full force and effect, with no abatement in Rent, (ii) In the event the Leasehold Improvements are Completely Destroyed, within Sixty (60) days of the damage, the Lessee shall, using both its own funds and Net Insurance Proceeds 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 Eighteen (18) months from the date the damage occurred and this Lease shall remain in full force and effect, with no abatement in Rent. (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 75 damage, the Lessee shall have the option (a) at the Lessee's sole cost and expense, (but using along with the Lessee's own funds and Net Insurance Proceeds available for that purpose), to commence and diligently pursue to completion the Restoration Work, in accordance with the provisions of Section 16.3 below, and Lessee shall complete the Restoration Work within Eighteen (18) months and this Lease shall remain in full force and effect, with no abatement in Rent or (b) to elect not to undertake the Restoration Work by providing 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 funds, Net Insurance Proceeds available for that purpose) deliver possession of the Subject Property to Lessor free 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 termination, except that such release shall not apply (aa) to any sums accrued or due (bb) Lessee's obligations regarding surrender of the Subject Property including the removal of debris, and (cc) environmental liability as provided for in Article XX. Section 16.3. 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 existed immediately 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 acknowledges and agrees that Lessee's obligations hereunder and the One Hundred and Eighty (180) day and Eighteen (18) month time periods set forth above are subject to Unavoidable Delay, and reasonable extensions based on the severity of the damage. Section 16.4. No Right to Terminate. Except for the Lessee's right to terminate during the last Five (5) years of the Lease Term in accordance with the provisions of Section 16.2(iii) and Section 16.5, Lessee waives the provisions of any statute, code or judicial decision which grants Lessee the right to terminate this Lease in the event of damage or destruction of the Subject Property. 76 Section 16.5. Lessee's Right to Terminate in Last Five Years. If Lessee elects to exercise the option given under Section 16.2(ii) to terminate this Lease, then any and all Net Insurance Proceeds paid for damage or destruction of the Leasehold Improvements shall be applied as follows: (i) First toward the reduction of the unpaid principal balance of any and all obligations secured by a Leasehold Mortgage; (ii) Second toward cost for debris removal; and (ii) The balance of the proceeds, if any, shall be paid to the parties as their respective interests may then appear. Section 16.6. Payment for Construction of the Restoration Work. Subject to any requirements of a Leasehold Mortgagee, all Net Insurance Proceeds shall be applied by the Parties to the payment of the cost of the Restoration Work (pursuant to this Article and Section 11.4) to restore the Leasehold Improvements. The Net Insurance Proceeds shall be paid out, the Restoration Work shall be performed, and the Lessee shall make additional deposits with an escrow agent, if any are required, all in accordance with Section 11.4, as may be applicable. 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 only for insurance money that shall corne into its hands. Section 16.8. Unused Insurance Proceeds and Deposits. In the event any Net Insurance Proceeds or sums deposited with an escrow agent or Lessor in connection with the Restoration Work shall remain in the hands of an escrow agent or the Lessor, if the Parties have agreed to allow the Lessor to hold the insurance proceeds until completion of the Restoration Work, and if the Lessee shall not then be in default under this Lease Agreement in respect of any matter or thing of which notice of default has been served on the Lessee, then the remaining funds shall be applied first towards any unpaid Rent, and the balance paid to the Lessee. 77 ARTICLE XVII ARBITRATION Section 17.1 Arbitration. A panel of arbitrators ("Arbitration Panel") shall be established to resolve any controversy, dispute or breach, arising out of or relating to this Lease, ( excluding any controversy, dispute, breach or Event of Lessee's Default with respect to the payment of Minimum Annual Rent or Percentage Rent), including but not limited to: a) Non -monetary 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 approval is required which "shall not be unreasonably withheld or delayed". d) Monetary disputes other than the payment of Minimum Annual Rent or Percentage Rent. e) Disputes concerning: (i) whether or not a default as described in Section 26.1(b) has occurred (ii) whether or not a default as described in Section 26.1(b) can or cannot be cured within Thirty (30) days, and/or (iii) whether or not the Lessee or any person holding by, through or under the Lessee, (in the event of a default which can not be cured within Thirty (30) days) has in. good faith and promptly commenced 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 an Event of Lessee's Default pertaining to the payment of Minimum Annual Rent and/or Percentage Rent, 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. 78 a) Arbitration will be commenced by: (i) a written demand made by the City Manager on behalf of the Lessor or a written demand made by the Lessee containing a statement of the question to be arbitrated and the name and address of its arbitrator; (ii) a written demand made by the City Manager on behalf of the Lessor at any time after an alleged Event of Lessee's Default (as described in Section 26.1(b)) specifying the default and the name and address of its arbitrator or a written demand made by the Lessee specifying the default and the name and address of its arbitrator at any time after an alleged Event of Lessor's Default (as described in Section 26.5(a)). b) Within Ten (10) days after 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 the two arbitrators, the two arbitrators shall meet and appoint a third arbitrator which shall constitute the Arbitration Panel. c) Every member of the Arbitration Panel must be a member of the American Arbitration Association (hereinafter referred to as a "Member"). In addition to the foregoing criterion, each Member shall satisfy the following conditions: (i) no Member shall be a person who is or has been an employee of either the Lessor or Lessee during the Five (5) year period immediately preceding his or her appointment; (ii) each Member shall be neutral and independent of the Parties to this Lease; (iii) no Member shall be affiliated with either Parties' auditors; and (iv) no Member shall have a conflict of interest with (including, without limitation, any bias towards or against) a Party hereto. d) If either party shall fail to designate a Member within Ten (10) days after receipt of the written 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, shall act in the same manner as if he had been the Member designated by the party so failing to designate an arbitrator. 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 the Two (2) Members, or either Party, such third Member shall be 79 designated by the President of the Florida Chapter of the Arnerican Arbitration Association, who shall appoint such third Member within Ten (10) days of the request. t) A hearing shall be commenced within Thirty (30) days following the selection of the Arbitration Panel. The Parties shall each make a good faith effort to cooperate with each other in all respects in connection with the exchange of documents relevant to the subject dispute. A court reporter shall make a transcript of the hearing. The Parties and the Arbitration Panel shall use their best efforts to conclude the hearing within Ten (10) days. The Parties shall be entitled to such pre-trial discovery as they may agree, or as determined by the Arbitration Panel. The Arbitration Panel shall have the right to question witnesses at the hearing, but not to call witnesses. The Arbitration Panel may grant continuances only by the agreement of both Parties. The Arbitration Panel may render a decision at the close of the hearing, or may request briefs on any or all issues. Any and all such briefs, including reply briefs, shall be filed with the terms and on the schedule set by the Arbitration Panel, but in any event no later than Forty --Five (45) days following the commencement of the hearing. The Arbitration Panel shall render a determination within Thirty (30) days from the conclusion of the hearing, and in the event briefs are submitted, within Thirty (30) days after receipt of said briefs. If no determination is rendered within such time, unless the parties agree otherwise, a new Arbitration Panel shall be selected as described above, but the new Arbitration Panel shall render a determination solely upon review of the record of the hearing without a further hearing. g) All actions, hearings and decisions of the Arbitration Panel shall be conducted, based upon and in accordance with the Commercial Arbitration Rules of the American Arbitration Association, In all controversies, disputes or claims with respect to the 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 conducted in accordance with the Real Estate Valuation Rules of the American Arbitration Association. In determining any matter before them, the Arbitration Panel shall apply the terms of this Lease Agreement, and shall not have the power to vary, modify or reform any terms or provisions of the Lease Agreement in 80 any respect. No Arbitrator is authorized to make an award of punitive or exemplary damages. The Arbitration Panel shall afford a hearing to the Lessor and to the Lessee who shall each have the right to be represented by counsel at such hearing and to call witnesses, and the right to submit evidence with the privilege of cross-examination on the question at issue. All arbitration hearings shall be held at a place designated by the Arbitration Panel in Dade County, Florida. h) The Arbitration Panel selected hereunder shall agree to observe the Code of Ethics for Arbitrators in Commercial Disputes promulgated by the American Arbitration Association and the American Bar Association, or any successor code, The decision of a majority with respect to any matter referred to it under this Lease shall be final, binding and conclusive on the City and Lessee and enforceable in any court of competent jurisdiction. Together with the determination, the Arbitration Panel shall provide a written explanation of the basis for the determination. Each party shall pay the fees and expenses of the Member of the Arbitration Panel designated by such party, such party's counsel and witness fees, and one-half (') of all expenses of the third Member of the Arbitration Panel. 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 judgment upon the award rendered by the Arbitration Panel shall be entered in any Court having jurisdiction thereof. ARTICLE XVIII MECHANICS LIENS Section 18.1. Discharge of Mechanics Liens. The Lessee shall not suffer or permit any mechanics liens to be filed against the title to the Subject Property, nor against the Lessee's Leasehold Estate, nor against the Leasehold Improvements or by reason of the Work, labor, services or materials supplied or claimed to have been supplied to the Lessee or any Subtenant, Lessee shall obtain releases or waivers of the contractor, subcontractors and any other persons furnishing work and materials discharging all liens and claims for all Work and materials furnished and similar 81 releases from the architect or other recipient in the case of payments out of the funds to the architect or other recipient. Nothing in this Lease Agreement shall be construed as constituting the consent or request of the Lessor, expressed or implied, by inference or otherwise, to any contractor, subcontractor, laborer or materialman for the performance of any labor or the furnishing of any materials for any specific improvement, alteration or repair of or to the Subject Property or the Leasehold Improvements. If any mechanics lien shall at any time be filed against the Subject Property including the Leasehold Improvements, the Lessee shall cause it to be discharged of record or transferred to bond within Thirty (30) days after the date the Lessee has knowledge of its filing. If the Lessee shall fail to discharge or transfer to bond a mechanics lien within that period, then in addition to any other right or remedy, the Lessor may, but shall not be obligated to, discharge the lien either by paying the amount claimed to be due or by procuring the discharge of the lien by deposit in court or bonding, or in the event the Lessor shall be entitled, if it so elects, to compel the prosecution of any action for the foreclosure of the mechanics lien by the Lienor and to pay the amount of the judgment, if any, in favor of the lienor with interest, costs and allowances with the understanding that all amounts paid by the Lessor shall constitute additional Rent due and payable under this Lease Agreement and shall be repaid to the Lessor by the Lessee immediately upon rendition of an invoice or bill by the Lessor. The Lessee shall not be required to pay or discharge any mechanics lien so long as the Lessee shall in good faith proceed to contest the lien by appropriate proceedings and if the Lessee shall have given notice in writing to the Lessor of its intention to contest the validity of the lien and upon request of Lessor, shall furnish and keep in effect a surety bond of a responsible and substantial surety company reasonably acceptable to Lessor or other security reasonably satisfactory to Lessor in an amount sufficient to pay one hundred ten percent of the amount of the contested lien claim with all interest on it and costs and expenses, including reasonable attorneys fees, to be incurred in connection with it. 82 ARTICLE XIX COVENANT AGAINST WASTE AND INSPECTION Section 19.1. Waste. Except as otherwise permitted by this Lease Agreement, the Lessee covenants not to do or suffer any demolition, waste or damage, disfigurement or injury to the Subject Property or the Leasehold Improvements or any part of it. The provisions of this Section 19.1 shall not apply to any demolition or disfigurement involved with repairs, renovations, upgrading or new construction, or to the construction of Iakes, canals and other similar type of waterways or deposit of clean fill at the Subject Property or the removal of fill from the Subject Property for such purposes. Section 19.2 Inspection of Subject Property. Lessor, its agents, employees and authorized representatives may enter the Subject Property at any time in response to an emergency, and at reasonable times as Lessor deems necessary to, incident to, or connected with the performance of Lessor's duties and obligations hereunder or in the exercise of its rights and functions. ARTICLE XX ENVIRONMENTAL LIABILITY Section 20.1. Definition of Terms. For purposes of this Article XX the following terms shall have the meaning attributed to them in this Section 20.1: (a) "Hazardous Materials" shall mean (i) petroleum and its constituents; (ii) radon gas, asbestos in any form which is or could become friable, urea formaldehyde, foam insulation, transformers or other equipment which contain dielectric fluid containing levels of polychlorinated biphenyls in excess of federal, state or local safety guidelines, whichever are more stringent; (iii) any substance, gas, material or chemical which is or may hereafter be defined as or included in the definition of "hazardous substances", "hazardous materials", "hazardous wastes", "pollutants or contaminants", "solid wastes" or words of similar import under any Environmental Law; and (iv) any other chemical, material, gas or substance, the exposure to or release of which is 83 regulated by any governmental or quasi -governmental entity having jurisdiction over the Subject Property or the operations thereon. (b) "Environmental Laws" shall mean all applicable requirements of federal, state and local, environmental, public health, and safety laws, regulations, orders, permits, licenses, approvals, ordinances and directives, including but not limited to, all applicable requirements of: the Clean Air Act; the Clean Water Act; the Resource Conservation and Recovery Act, as amended by the Hazardous and Solid Waste Amendments of 1984; the Safe Drinking Water Act; the Comprehensive Environmental Response, Compensation and Liability Act, as amended by the Superfund Amendments and Reauthorization Act of 1986; the Occupational Health and Safety Act; the Toxic Substances Control Act; the Pollutant Discharge Prevention and Control Act; the Water Resources Restoration and Preservation Act; the Florida Air and Water Pollution Control Act; the Florida Safe Drinking Water Act; Florida Environmental Reorganization Act of 1975. (c) "Costs" shall mean all costs incurred in connection with correcting any violations of any Environmental Laws and/or the Clean Up of Existing Contamination including the Phase I and Phase II audits. (d) "Existing Contamination" shall mean any Hazardous Materials revealed by the Phase I and/or Phase II audits of the environmental condition of the Subject Property which is undertaken as provided for in Section 13.1(c) and 20.3 hereof. (e) "Clean Up" shall mean any remediation and/or disposal of Hazardous Materials at or from the Subject Property which is ordered by any federal, state, or local environmental regulatory agency, if necessary, to avoid injury to persons or property in connection with the Existing Contamination. Section 20.2. Environmental Warranty of Lessee. The Lessee warrants and represents that it will not unlawfully use or employ the Subject Property, or any of the Leasehold Improvements thereon to handle, transport, store, treat, or dispose of any Hazardous Materials on the Subject Property. The Lessee warrants and represents that it will not knowingly conduct any activity on the Subject Property in violation of any 84 applicable Environmental Laws and that any activity on the Subject Property will be conducted in compliance with applicable Environmental Laws. Upon termination or expiration of the Lease, Lessee shall, at its sole cost and expense, cause all Hazardous Materials, including their storage devices, placed in or about the Subject Property by Lessee or its Subtenants, including their its employees, agents, contractors or subcontractors, or at their direction to be removed from the Subject Property and transported for use, storage or disposal in accordance and compliance with all applicable Environmental Laws. Section 20.3. Investigation of Environmental Condition of the Subject Property. (a) The Lessor hereby grants to the Lessee, its agents and other representatives full and continuing access to the Subject Property and all parts thereof, at all times after the Lease Date, for the purpose of the Lessee, at Lessee's sole cost and expense, performing environmental investigation and testing on the Subject Property. The Parties agree that subsequent to the execution of this Lease Agreement, the Lessee, at its sole cost and expense, may perform a Phase I environmental audit of the Subject Property, and if warranted by the Phase I findings, the Lessee, at its sole cost, shall cause a Phase II audit to be performed to determine whether the Subject Property is in compliance with all applicable Environmental Laws. The Phase II audit will evaluate the extent, if any, to which Hazardous Materials have been or are being released, discharged, emitted, or otherwise disposed of into the environment in violation of Environmental Laws (the "Inspections"). In the event that the Phase II audit is performed and it is determined that the Subject Property is not in compliance with the applicable Environmental Laws and a Clean Up is required, the Parties shall proceed as follows: (i) In the event the Costs are estimated to exceed Four Hundred Thousand Dollars and 00/100 ($400,000), either Party may elect to cancel this Lease within the time period set forth within paragraph 4.3(b)(ii); provided, however, that if the Parties mutually agree to allocate such excess Costs between them, or if the Lessee 85 agrees to be solely responsible for such excess Costs, then this Lease shall remain in full force and effect. (ii) Provided the Lease is not canceled pursuant to (i) above, Lessee shall serve the Environmental Condition Acceptance Notice upon the Lessor (within the time period set forth within paragraph 4.3(b)(ii)), and the Parties shall allocate amongst the Lessor and the Lessee the financial 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 shall (i) immediately pay or cause to be removed any liens filed against the Subject Property as a result of any Inspection perforated by or on behalf of the Lessee, pursuant to this Article; (ii) immediately repair and restore the Subject Property to its condition existing immediately prior to the conduct of Lessee's Inspections should 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 property, personal injury, or death to anyone on the Subject Property as a result of the acts or omissions of the Lessee or any of its agents or employees arising out of Lessee's Inspection of the Subject Property. Section 20.4. Lessor's Representations and Warranties. The Lessor represents and warrants that no lawsuits, claims, legal or administrative claims have been brought resulting from the Lessor's use or occupancy of the Subject Property, nor is Lessor aware of the existence of any hazardous substances thereon including during the Lessor's use, occupancy and/or ownership of the Subject Property. Section 20.5. Allocation of Financial Responsibility for Cleanup of Existing Contamination. In the event it is determined that there is Existing Contamination on the Subject Property requiring Clean-up and the Parties agree that this Lease (subject to Section 20.3) should remain in full force and effect, the Parties hereby agree that Lessee shall pay the first One Hundred Thousand Dollars ($100,000) of the Costs. Lessor shall pay the next One Hundred Thousand Dollars ($100,000) of the Costs. The Parties further agree to share Fifty/Fifty (50/50) of the next Two Hundred Thousand Dollars ($200,000) of the Costs for a cumulative expenditure by both Parties 86 of Four Hundred Thousand Dollars ($400,000). The Parties hereto agree that the time allocated to such Clean Up shall be considered to be an Unavoidable Delay for purposes of Lessee taking Possession of the Subject Property. Furthermore, in the event that Lessee takes Possession of the Subject Property prior to completion of the Clean -Up, the time period that it takes to perform the Clean Up shall extend the Lease Term by an equal number of days (excluding such time periods after the actual remediation and/or 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 During Lease Term. The Lessee agrees to undertake at the Lessee's sole cost and expense, any necessary action, including any remediation and/or disposal required as a result of a release of a Contaminant occurring on or from the Subject Property in connection with any activity or acts of the Lessee or Lessee's Subtenants, including their agents, employees, officials, contractors and subcontractors, during the Lease Term. Section 20, 7. Lessor's Liability for Contamination During Lease Terrn. The City agrees to undertake at the Lessor's sole cost and expense, any necessary action, including any remediation and/or 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 omissions of the Lessor or the Lessor's employees or agents. Section 20.8. Indemnity. If the Lessee's or the Lessor's warranties and representations contained in this Article are false or breached, or if the Lessee fails to fully comply with its undertakings pursuant to Section 20.6 hereof, or if the Lessor fails to fully comply with its undertakings pursuant to Section 20.7 hereof, the Lessee or the Lessor, as the case may be, agrees to defend, indemnify, and hold harmless the other party and its agents, officials, and employees, to the fullest extent permitted by law, from and against all expenses of remediation, disposal or other similar type of clean up or action necessary for compliance with the Environmental Laws, and any and all claims, causes of action, or demands, in law or in equity, including but not limited to, all lien claims, administrative claims, claims for injunctive relief, claims of property 87 damage, natural resources damages, environmental response and clean up costs, fines, penalties, and expenses (including without limitation, counsel fees, consultant fees and expert fees, costs and expenses incurred in investigation and defending against the assertion of such liabilities), which may be sustained, suffered or incurred by the said non -breaching party, its agents, officials or employees in connection with the foregoing. The parties acknowledge and agree that the indemnification of each other as provided above in this Section 20.8 is conditioned upon the respective warranties and representations of the Parties in this Article XX being false or breached or the failure of the Lessee or Lessor to fully comply with Sections 20.6 and 20.7, respectively, and that such indemnification does not cover any Costs of clean-up required by the presence of any Hazardous Materials on the Subject Property or other portions of Watson Island resulting solely from the acts or negligence of a third party. Section 20.9. Phase I Environmental Assessment at End of Lease Term. (a) At any time within the Twelve (12) months before the expiration or earlier termination of the Lease Term, Lessee, upon written request by the City, Lessee, at Lessee's sole cost and expense, shall cause a Phase 1 environmental audit (the "End -Term Audit) of the Subject Property and the Leasehold Improvements to be completed by a professional environmental consultant approved by the City Manager. If the End -Term Audit indicates the presence of Hazardous Materials which were either (i) not present as indicated in either the original Phase I or Phase II environmental audits or (ii) if present as indicated in either or both of such prior audits, were previously subject to and satisfied by all Clean -Up requirements, it shall first be determined whether the presence of such contamination is due to the acts or negligence of the Lessee, the Lessor, or a third party. If the contaminator is the Lessee and/or its Subtenants, including their agents, officials, employees, contractors or subcontractors, the Lessee shall pay or cause to be paid all Costs associated with the required remediation and clean-up. (b) In the event that it is determined that neither the Lessor, nor the Lessee and/or its Subtenants, including their agents, officials, employees, contractors or subcontractors, is the contaminator, but that the presence of such new Hazardous 88 Materials was caused by the acts or negligence of a third party, the Lessor and Lessee shall fully cooperate with each other in all matters relating to the identification and clean-up responsibilities of such third party contaminator and its Clean -Up responsibilities. (c) Any dispute between the Parties arising in connection with a determination of (i) the source of any new Hazardous Materials, (ii) the Person or Persons responsible for such new Hazardous Materials, (iii) the allocation costs of Clean -Up of any new Hazardous Materials if more than one Person is responsible, or (iv) any related matter, shall be submitted to arbitration in accordance with the provisions of Article XVII of this Lease. Section 20.10 Survival of Lessee's Obligations. The respective rights and obligations of Lessor and Lessee under this Article XX shall survive the expiration or termination of this Lease. ARTICLE XXI PUBLIC UTILITY CHARGES Section 21.1. Lessee to Provide and Pay for Utilities. The Lessee shall pay, or cause to be paid, all proper charges, including connection and tapping fees, for the use of gas, electricity, light, heat, water, sewer, storm sewer and power, fire lines, telephone, protective services and other communication services, and for all other public or private utility services, which shall be used, rendered or supplied upon or in connection with the Subject Property and the Leasehold Improvements or any part of it, at any time during the Lease Term. The Lessee shall comply with all contracts relating to any services and will do all other things required for the maintenance and continuance of all services as are necessary for the proper maintenance and operation of the Subject Property and the Leasehold Improvements, The Lessee will also, at its sole cost and expense, procure any and all necessary permits, licenses or other authorization required for the lawful and proper installation and maintenance upon the Subject Property of wires, pipes, conduits, tubes and other equipment and appliances for use in supplying any such utilities, services or substitutes to the Subject Property and the Lessor will cooperate with and assist the Lessee in such endeavor. 89 Section 21.2. Lessor Not Liable for Failure of Utilities. Lessor shall not be liable (other than for their own or any of their agents, servants and employees gross negligence) for any failure of water supply, sewer, gas or electric current, or for any injury or damage to any Person or property caused by or resulting water, sewer, gas or electricity which may leak or flow from the water, sewer or gas mains on to any part of the Leasehold Improvements or the Subject Property. ARTICLE 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 corporation, arising, (other than due to the Lessor's gross or wanton negligence upon the Subject Property) from any Work in or about the Subject Property and the Leasehold Improvements. The Lessee also agrees to indemnify, defend and save the Lessor harmless against and from claims and damages arising (other than due to the Lessor's gross or wanton negligence), during the Lease Term from a hazardous condition of the Leasehold Improvements 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 the Lessee to be performed, pursuant to the terms of this Lease Agreement, or arising from any act or negligence of the Lessee or any of its agents, contractors, servants, empl gees or licensees, or arising, (other than due to the Lessor's gross or wanton negligence) from any accident, injury or damage caused to any Person occurring during the Lease Term in or on the Subject Property, and from and against all costs, counsel and legal fees, expenses and liabilities incurred in any claim or action or proceeding brought thereon. In case any action or proceeding be brought against the Lessor by reason of a claim, the Lessee, upon notice from the Lessor, shall, at its expense, resist or defend the action or proceeding by counsel reasonably satisfactory to the Lessor. If the Lessee be required to defend any action or proceeding pursuant to this Article XXII to which action or proceeding the Lessor is made a party, the Lessor 90 shall also be entitled to appear, defend, or otherwise take part in the matter involved, at its election, and at the sole expense of the Lessee (except the Lessee shall not be obligated to pay counsel fees when an insurance carrier is obligated to and does defend the Lessor), by counsel located within Dade County of its own choosing, provided this action by the Lessor does not limit or make void any liability of any insurer of the Lessor or the Lessee in respect to the claim or matter in question and provided that the legal fees and costs are reasonable. The foregoing agreements of indemnity are in addition to and not by way of limitation of any other covenants in this Lease Agreement to indemnify the Lessor. The foregoing agreements of indemnity by the Lessee do not apply to any claims of damages arising out of the failure of the Lessor to perform acts or render services in its municipal capacity. ARTICLE XXIII LIEN FOR RENT AND OTHER CHARGES Section 23.1. Lien for Rent. The whole amount of the Rent, and each and every installment, and the amount of all taxes, assessments, water rates, insurance premiums and other charges and Impositions paid by the Lessor under the provisions of this Lease Agreement, and all costs 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 Mortgagee and to the lien given by Lessee in the purchase of any equipment, machinery, furniture, fixtures or other personalty utilized on or in the Subject Property, and may be enforced by all remedies at law and in equity. 91 ARTICLE XXIV ADDITIONAL, BENEFITS TO THE CITY OF MIAMI Section 24.i. Additional Benefits. Lessee hereby agrees to provide each Lease Year during the Lease Term the following additional benefits to the City of Miami: (a) Not less than Twenty percent (20%) admission discounts to Parrot Jungle and Gardens of Watson Island for residents of the City of Miami for Four (4) months during each Lease Year. Lessee shall be permitted to establish reasonable standards for proof of residency. (b) Free admission to Parrot Jungle and Gardens of Watson Island for all City employees during those same Four (4) months upon presentation of a City employee identification. (c) Free training scholarship at Parrot Jungle and Gardens of Watson Island for Six (6) students per Lease Year. Lessor and Lessee shall mutually agree as to the procedure for selecting the Six (6) students. The Six (6) week summer program will feature: (i) Landscaping and Horticulture (ii) Food Service (iii) Tourism and Hospitality (iv) Environmental Education (d) Twenty percent (20%) discount to the Lessor for any functions held at Parrot Jungle and Gardens of Watson Island, including food (utilizing Parrot Jungle catering) and gifts. The amount paid by the Lessor to Lessee for the function and/or gifts shall be included as a part of Gross Revenue. (e) Provide area within Subject Property for use by Lessor as Fire Rescue or Police substation. (f) Provide a Fifty Percent (50%) discount to the Lessor for Four (4) days per Lease Year for functions held at Parrot Jungle and Gardens at Watson Island, and Two (2) days per Lease Year at cost. These events shall not be subject to the provisions of Section 7.2(a). 92 ARTICLE XXV CONDEMNATION Section 25.1. Definitions. For purposes of this Article XXV, the following words shall have the meanings attributed to them in Section 25.1: (a) "Date of Taking" means the earlier of (i) the date on which actual possession of all or less than all of the Subject Property and Leasehold Improvements, as the case may be, is acquired by any lawful power or authority pursuant to the provisions of Applicable Law or (ii) the date on which title to all of less than all of the Subject Property and Leasehold Improvements, as the case may be, has vested in any lawful power or authority pursuant to the provisions of Applicable Law. (b) "Net Condemnation Award" means the actual amount of the award paid in connection with or arising from the acquisition or other taking of all or less than all of the Subject Property and Leasehold Improvements, as the case may be, less all reasonable out-of-pocket expenses incurred by Lessor, Lessee or any Leasehold Mortgagee in connection with obtaining such award, including, without limitation, all reasonable attorneys' fees and disbursements incurred in connection therewith. Section 25.2. Entire Subject Property Taken by Condemnation. In the event that all of the Subject Property and the Leasehold Improvements (or such portion thereof as shall, in the good faith opinion of Lessee, render it economically unfeasible to effect restoration thereof for its intended purpose) shall be taken for any public purpose by the right of condemnation or the exercise of the power of eminent domain or shall be conveyed by the City and Lessee acting jointly to avoid proceedings of such taking, the Rent and money to be treated as Additional Rent pursuant to this Lease shall be prorated and paid by the Lessee to the Date of Taking or conveyance in lieu thereof, and this Lease shall terminate and become null and void as of the Date of Taking or such conveyance; and the amount of damages resulting to Lessor and Lessee, respectively, and to their respective interests in and to the Subject Property, the 93 Leasehold Improvements, and in connection with this Lease, shall be separately determined and computed by the court having jurisdiction and separate awards and judgments with respect to damages to Lessor and Lessee, respectively, and to each of their respective interests, shall be made and entered. In the event that a court shall make a single Net Condemnation Award without separately determining the respective interests of Lessor and Lessee, and if Lessor and Lessee shall not agree in writing as to their respective portions of an award 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 the event for any reason the trial judge refuses to permit a determination by judgment, then the respective interests of Lessor and Lessee shall be determined by arbitration under Article XVH. In any event, the Lessor shall be entitled to receive its reversionary interest in the Subject Property and Leasehold Improvements and Lessor's present value of rent due under the terms of the Lease Agreement and for the Lessee's estate in the Subject Property and the Leasehold Improvements which a buyer willing but not obligated to buy, would pay therefore in an awns length transaction. In no event shall Lessee be entitled to compensation for any ownership interest in the Subject Property at the time of condemnation. Section 25.3. Partial Taking of Subject Property by Condemnation. (a) In the event less than all of the Subject Property and/or Leasehold Improvements shall be taken for any public use or purpose by the right or the exercise of the power of eminent doiinain, or shall be conveyed by the City and Lessee acting jointly to avoid proceedings of such taking, and Lessee shall be of the good faith opinion that it is economically feasible to effect restoration thereof, then this Lease and all the covenants, conditions and provisions hereunder shall be and remain in full force and effect as to all of the Subject Property not so taken or conveyed (except as provided in subsection 25.4). Lessee shall to the extent Net Condemnation Award are made available to it, pursuant to the terms hereof, remodel, repair and restore the Leasehold Improvements so that they will be comparable to the Leasehold 94 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 Net Condemnation Award actually received by Lessee. (b) The Net Condemnation Award allowed to City and Lessee shall be paid to and received by the Parties as follows: (i) There shall be paid to the City the value of the portion of the land so taken, which land shall be valued as if unimproved and unencumbered; (ii) There shall be paid to the Lessee any amount by which Lessee's profits and value of Lessee's interest in the Lease Agreement have been reduced by the taking; (iii) There shall be paid to the Lessee the amount required to complete the remodeling and repairs to the Leasehold Improvements pursuant to (a) above; (iv) The City and Lessee shall be paid portions of the balance of the Net Condemnation Award or awards, if any, which are allocable to and represented by the value of their respective interest in the Subject Property as found by the court in its condemnation award. In the event that a court shall make a single Net Condemnation Award without separately determining the respective interests of Lessor and Lessee, and if Lessor and Lessee shall not agree in writing as to their respective portions of such award 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 the event for any reason the trial judge refuses to permit a determination by judgment, then the respective interests of Lessor and Lessee shall be determined by arbitration under Article XVII. Section 25.4. Adjustment of Minimum Annual Rent Upon Partial Taking. In the event a part of the Subject Property and the Leasehold Improvements thereon, if any, shall be taken for any public use or purpose by the exercise of the power of eminent domain, or shall be conveyed by City and Lessee acting jointly to avoid proceedings of such taking, then Rent, and money to be treated as Additional Rent 95 pursuant to this Lease Agreement shall be paid by Lessee to the Date of Taking or conveyance in lieu thereof, and after such date the Minimum Annual Rent for the remainder of the Subject Property shall be reduced by an amount equal to the Minimum Annual Rent then in effect multiplied by the percent by which Gross Revenue is affected by such taking. Section 25.5. Deposit of Condemnation Award with Escrow Agent. Unless the effect of a condemnation proceeding shall be to terminate this Lease Agreement by operation of law or as provided in Section 25.2 above, and except as may be provided in any Leasehold Mortgage to, or agreement with, any Leasehold Mortgagee described in Section 6.8 above, any Net Condemnation Award made in respect of the Leasehold Improvements in a condemnation proceeding shall be deposited with the Leasehold Mortgagee as escrow agent (unless Leasehold Mortgagee refuses to act as such, in which case the City and Lessee shall select a bank to serve as escrow agent) to be disbursed for the cost of restoring the Leasehold Improvements and accomplishing the Work and for other related purposes. Section 25.6. Rights of Leasehold Mortgagee. Lessor and Lessee shall riot settle or compromise the amount or division of any Net Condemnation Award in any condemnation proceeding without any Leasehold Mortgagee's reasonable consent. Any Leasehold Mortgagee of Lessee shall be entitled to appear in any condemnation proceedings and make claim for the share of any award to which Lessee is entitled by the terms of this Article. Section 25.7. Temporary Taking. In the event that all or any portion of the Leasehold Improvements or the Subject Property shall be taken by the right of condemnation or the exercise of the power of eminent domain for governmental use or occupancy for a temporary period, this Lease Agreement shall not terminate and Lessee shall continue to perform and observe all of its obligations (including the obligation to pay Rent as provided throughout this Lease Agreement) as though the temporary taking had not occurred except only to the extent that it may be prevented from so doing by the terms of the order of the authority which make the temporary taking or by the conditions resulting from the taking, including the loss of its possession of all or any 96 part of the Leasehold Improvements or the Subject Property. In the event the taking for governmental occupancy is for a period entirely within the term of this Lease Agreement, then Lessee shall be entitled to receive the entire amount of any Net Condemnation Award made for the taking, whether paid by way of damages, Rent or otherwise. If the period of governmental occupancy extends beyond the termination of the Lease Term, the Lessor shall only be entitled to receive that portion of the Net Condemnation Award allocable to the period beyond the termination of the Lease Term. The amount of any Net Condemnation Award payable to Lessee, on account of a temporary taking of all or any part of the Leasehold Improvements, shall be deemed a part of the Lessee's Leasehold Estate for all purposes in this Lease Agreement. If the Net Condemnation Award does not separately determine the amount applicable to the taking of the interest of the 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 respective Parties, then Lessor and Lessee shall submit the matter 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 respective interests of Lessor and Lessee shall be determined by arbitration under Article XVII. ARTICLE XXVI DEFAULT PROVISIONS Section 26.1. Events of Default by 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 Rent, 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 97 that the Lessee has failed to perform any of the covenants, conditions and agreements) from the Lessor to the Lessee, unless with respect to any default which cannot be cured within Thirty (30) days, the Lessee, or any person holding by, through or under the Lessee, in good faith, promptly after receipt of written notice, shall have commenced and continued diligently to reasonably prosecute all action necessary to cure the default; (c) The filing of an application by the Lessee: (i) for a consent to the appointment of a receiver, trustee or liquidator of itself or all its assets; (ii) of a voluntary petition in bankruptcy or the filing of a pleading in any court of record admitting in writing its inability to pay its debts as they come due; (iii) of a general assignment for the benefit of creditors; (iv) of an answer admitting the material allegations of, or its consenting to, or defaulting in answering, a petition filed against it in any bankruptcy proceeding; 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. In the event this Lease Agreement is assumed by or assigned to a trustee pursuant to the provisions of the Bankruptcy Reform Act of 1978 (referred to as Bankruptcy Code) (11 USC 1 et seq.), and the trustee shall cure any default under this Lease Agreement and shall provide adequate assurances of future performance of this Lease Agreement as are required by the Bankruptcy Code (including, but not limited to, the requirement of Section 365(b)(1)) (referred to as Adequate Assurances), and if the trustee does not cure such default and provide such Adequate Assurances under the Bankruptcy Code within the applicable time periods provided by the Bankruptcy Code, then this Lease Agreement shall be deemed rejected automatically and the Lessor shall have the right immediately to possession of the Subject Property and shall be entitled to all remedies provided by the Bankruptcy Code for damages for breach or termination of this Lease Agreement. 98 Section 26.2. Remedies in Event of Lessee's Default. The Lessor may treat any one or more of the Event(s) of Lessee's Default as a breach of this Lease Agreement, and thereupon at its option, by serving written notice on the Lessee and its Leasehold Mortgagee of the Event of Default, the Lessor shall have, in addition to 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 terminate Lessee's right of possession under this Lease and to collect any other sum of money and damages due under the terms of this Lease after Thirty (30) days from the date of service of notice of Lessor's election to bring suit (which Thirty (30) day period shall be in addition to all other cure periods provided under this Lease, including but riot limited to the Sixty (60) day time period provided in Section 26.1(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 Lessee pays to the Lessor, in addition to the full amount of Minimum 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 Lessor shall have the right, but not the obligation, to carry out or complete the Work on behalf of the Lessee without terminating this Lease Agreement, utilizing the proceeds of the payment and performance bonds. Section 26.3. Waivers and Surrenders to Be in Writing. The receipt of Rent by the Lessor, with knowledge of any breach of this Lease Agreement by the Lessee or of 99 any default on the part of the Lessee in the observance or performance of any of the conditions, agreements or covenants of this Lease Agreement, shall not be deemed to be a waiver of any provision of this Lease Agreement. Notwithstanding the foregoing, Lessor must advise Lessee forthwith in writing of any breach of this Lease Agreement 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 under it by the Lessor, unless in writing, shall discharge or invalidate such covenant or provision or affect the right of the Lessor to enforce it in the event of any subsequent breach or default. No covenant or condition of this Lease Agreement shall be deemed to have been waived by the Lessor unless the waiver be in writing, signed by the City Manager or the Lessor's agent duly authorized in writing. Consent of the Lessor to any act or matter must be in writing and shall apply only with respect to the particular act or matter to which the consent is given and shall not relieve the Lessee from the obligation, wherever required under this Lease Agreement, to obtain the consent of the Lessor to any other act or matter. The receipt by the Lessor of any Rent or any other sum of money or any other consideration paid by the Lessee after the entry of a judgment granting possession of the Subject Property to the Lessor, shall not reinstate or continue the Lease Term demised unless so agreed to in writing and signed by the City Manager and Lessee. Section 26.4. Rights of Leasehold Mortgagee Upon Lessee's Default, All of Lessor's rights and remedies upon Lessee's default are subject and subordinate to the provisions of Article VI of this Lease concerning the rights and remedies of Leasehold Mortgagees. Section 26.5. Events of Default - Lessor. (a) Events of Lessor's Default. The failure of the Lessor to perform any of the covenants, conditions and agreements of this Lease which are to be performed by the Lessor and the continuance of such failure for a period of Sixty (60) days after notice thereof in writing from Lessee to the Lessor (which notice shall specify the respects in which Lessee contends that the Lessor has failed to perform any of such covenants, conditions and agreements), and unless such default be one which cannot be 100 cured within Sixty (60) days and the Lessor within such Sixty (60) day period shall have commenced and thereafter shall continue diligently to prosecute all actions necessary to cure such defaults, such failure shall constitute an "Event of the Lessor's Default". (b) Lessee's Remedies in Event of Lessor'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 Lessor, the Lessee shall have, in addition to every other right or remedy existing at law or equity (but subject to compliance with all Applicable Laws, the grace periods and cure periods set forth within this Lease, and the requirements pertaining to arbitration as set forth in Article XVII of this Lease), one or more of the following remedies: (i) the right and option to terminate this Lease and all of its obligations hereunder; (ii) the right to a writ of mandamus, specific performance, injunction or other similar relief, available to it under Applicable law against the Lessor (including any or all of the members of its governing body, and its officers, agents or representatives) provided, however, that in no event shall any member of such governing body or any of its officers, agents or representatives be personally liable for any of the City's obligations to Lessee hereunder; (iii) the right to obtain damages resulting from such default. Section 26.6 Mitigation. Lessor and Lessee hereby expressly acknowledge and agree that each shall have an affirmative obligation to mitigate their respective damages as a consequence of a default by the other. ARTICLE XXVII INVALIDITY OF PARTICULAR PROVISIONS Section 27.1. Invalidity of Provisions. If any provision of this Lease or the application of it to any Person or circumstances shall to any extent be invalid or unenforceable, the remainder of this Lease Agreement, or the application of such 101 provision to Persons or circumstances other than those as to which it is invalid or unenforceable, shall not be affected, and each provision of this Lease Agreement shall be valid and be enforced to the fullest extent permitted by law. ARTICLE XXVIII QUIET ENJOYMENT Section 28.1. Quiet Enjoyment. The Lessor represents, warrants and covenants that the Lessee, upon paying the Rent and all Impositions and other charges, and performing all the covenants and conditions of this Lease Agreement, shall lawfully and quietly hold, occupy and enjoy the Subject Property during the term of this Lease Agreement without hindrance or molestation by Lessor or any Persons claiming under the Lessor. ARTICLE XXIX LESSOR'S TITLE AND LIEN Section 29.1. Title 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 conditions pertaining to any waivers thereof which restrictions and conditions are set forth in Exhibit "F", 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 firm 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 may be customary in Dade County. Lessor shall demise and lease to Lessee good and marketable title in the Subject Property in accordance with Title Standards adopted from time to time by the Florida Bar, together with all of the singular tenements, hereditaments, easements, privileges, riparian, littoral and other rights benefiting and belonging to the Subject Property, including, without limitation, water and canal rights or other rights (hereinafter collectively referred to as appurtenant rights) which may 102 have been acquired by Lessor in and to any of the foregoing in the period commencing and including the respective dates Lessor acquired such rights, and extending to and including the Lease Date, subject only to liens, encumbrances, exceptions or qualifications (which existing liens, encumbrances, exceptions and qualifications are not reimposed by this Lease) as may be approved by Lessee. Lessee shall have Forty - Five (45) calendar 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 unmarketable, the 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 within said time, Lessee shall have the option of either (1) accepting the title as it then is, or (2) demanding 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 unmarketable, use diligent efforts to correct the defect(s) in title within the time provided therefor, including the bringing of necessary suits. Lessee may at its option extend the time for clearing defects for a reasonable period of time. From and after the Lease Date, Lessor shall take no action which would impair or otherwise 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. 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 for that there are encroachments onto the Subject Property, then in the event of the foregoing, said survey report shall be treated in the same manner as a representation and tide exception. 103 Section 29.2. Lessee Not to Encumber Lessor's Interest. The Lessee shall have no right or power to, and shall not in any way encumber the title of the Lessor in and to the Subject Property, or the title of the Lessor's remainder or residual interest in the Leasehold Improvements, other than by this Lease Agreement. The fee simple estate of the Lessor in the Subject Property and the residual interest of the Lessor in the Leasehold Improvements shall not be in any way subject to any claim by way of lien or otherwise, whether claimed by operation of law or by virtue or any express or implied lease or contract or other instrument made by the Lessee and any claim to the lien or otherwise upon the Subject Property or in the Leasehold Improvements arising from any act or omission of the Lessee shall accrue only against the Lessee's Leasehold Estate and the Lessee's interest in the Leasehold Improvements. ARTICLE XXX REIMBURSEMENT OF CITY EXPENSES Section 30.1 Reimbursement of City Expenses. Upon execution of this Lease Agreement by the Lessee, Lessee shall reimburse Lessor the amount of Twenty Nine Thousand, Nine Hundred and Twenty -Seven dollars and 17/100 ($29,927.17) representing the Lessor's actual cost for survey, appraising, certified public accounting, and advertising services in connection with the request for proposals issued May 30, 1995 for development of a Botanical Garden, less the Lessee's non-refundable cashier's check in the amount of Two Thousand Dollars ($2,000.00) submitted with Lessee's proposal. ARTICLE XXXI LIMITATION OF LIABILITY Section 31.1 Limitation of Liability 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, covenants, undertakings and agreements of the Lessee are nevertheless, each and every 104 one of them, 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 Stockholders personally; but are made and intended for the purpose of binding the Leasehold Estate. No personal liability or personal responsibility is assumed by nor shall at any time be asserted or enforceable against the Stockholders, Officers, and 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. Estoppel Certificates. The Lessor and the Lessee each agree at any time and from time to time, so long as this Lease shall remain in effect, upon not less than Ten (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 Lease is unmodified and in full force and effect (or if there have been modifications, that it is in full force and effect as modified, stating the modifications) and the dates to which the Rent and other charges have been paid in advance, if any, and stating whether any default under the terms of this Lease is known by, or any notice of default has been served by, the Party giving the certificate, it being intended that any statement delivered pursuant to this Article may be relied upon by any prospective purchaser of the Lessor's fee simple interest in the Subject Property or of the Lessor's remainder interest in the Leasehold Improvements or 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 part of the Leasehold Improvements or the Subject Property, as the case may be. 105 ARTICLE XXXIII REMEDIES CUMULATIVE Section 33.1. Remedies Cumulative. No remedy conferred upon or reserved to the Lessor or the Lessee shall be considered exclusive of any other remedy, but shall be cumulative and shall be in addition to every other remedy given under this Lease Agreement or existing at law or in equity or by statute; and every power and remedy given by this Lease Agreement to the Lessor or the Lessee may be exercised from time to time and as often as occasion may arise, or as may be deemed expedient by the Lessor or the Lessee. No delay or omission of Lessor or Lessee to exercise any right or power arising from any default shall impair any right or power, nor shall it be construed to be a waiver of any default or any acquiescence in it. The rights of the Lessor under this Lease shall be cumulative and the failure on the part of the Lessor to exercise properly any rights given hereunder shall not operate to forfeit any of the said rights. Section 33.2. Waiver of Remedies Not To Be Inferred. No waiver of any breach of any of the covenants or conditions of this Lease Agreement shall be construed to be a waiver of any other breach or to be a waiver of, acquiescence in, or consent to any further or succeeding breach of the same or similar covenant or condition. ARTICLE XXXIV SURRENDER AND HOLDING OVER Section 34.1. Surrender at End of Term. On the last day of the Lease Term the Lessee shall peaceably and quietly leave, surrender and deliver the entire Subject 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, machinery, equipment or other personal property of any kind or nature, which the Lessee may have installed or affixed to the Subject Property or the Leasehold Improvements for use 106 in connection with the operation and maintenance of the Subject Property and the Leasehold Improvements (whether or not the property is deemed to be fixtures), in their "as is" condition, free and clear of any and all Leasehold Mortgages, liens, encumbrances and claims. At the time of the surrender, the Lessee shall also surrender any and all security deposits and rent advances of Subtenant's made pursuant to Article XXXV. If the Subject Property and the Leasehold Improvements are not so surrendered, the Lessee shall repay the Lessor for all expenses which the Lessor shall incur by reason of it, and in addition the Lessee shall indemnify, defend and hold harmless the Lessor from and against all claims made by any succeeding Lessee against the Lessor, founded upon delay occasioned by the failure of the Lessee to surrender the Subject Property and the Leasehold Improvements. Section 34.2. Rights Upon Holding Over. At the termination of this Lease Agreement by lapse of time or otherwise, the Lessee shall yield up immediate possession of the Subject Property and the Leasehold Improvements to the Lessor and, failing so to do, agrees, at the option of the Lessor, to pay to the Lessor for the whole time such possession is withheld a sum per day equal to Two Hundred (200) percent times 1/365th of the aggregate of the Rent paid or payable to Lessor for the prior Lease Year as set forth in Article V. The provisions of this Article shall not be held to be a waiver by the Lessor of any right of entry or reentry as set forth in this Lease Agreement, nor shall the receipt of a sum, or any other act in apparent affirmance of the tenancy, operate as a waiver of the right to terminate this Lease Agreement and the term granted for the period still unexpired for any breach of the Lessee under this Lease Agreement. ARTICLE XXXV SUBLEASES Section 35.1. Subleasing. Lessee shall at any time during the Lease Term have the right, 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; ii) the term of the Sublease shall be for a period of time less than the Lease Terra; and iii) at the commencement of 107 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 Subleases and amendments thereto. Section 35.2 Nondisturbance and Attornment. On Lessee's request, Lessor shall enter into appropriate agreements with Lessee's Subtenants granting assurances that such Subtenants will not be evicted by Lessor on termination of this Lease for Lessee's default, provided: (i) the Subtenant is not in default under its Sublease from Lessee; and (ii) the Subtenant has not paid Lessee more than Three (3) months Rent in advance of the then current month; and (hi) the Subtenant is paying such rentals under its Sublease as is comparable with rentals payable by other Subtenants in the Subject Property for comparable space or by Lessees of comparable facilities; and (iv) the Lessor's acceptance of such tenancy shall not impose any obligations on the Lessor 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 Lessee's 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; (vi) 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 submit to the Lessor a copy of an unaudited financial statement of Lessee as prepared by a Certified Public Accountant. 108 ARTICLE XXXVII MODIFICATION Section 37,1. Modification. None of the covenants, terms or conditions of this Lease Agreement to be kept and performed by either party to this Lease Agreement shall in any manner be waived, modified, changed or abandoned except by a written instrument duly signed, acknowledged and delivered by both Lessor and Lessee. ARTICLE XXXVIII CONVEYANCE BY LESSEE TO LESSOR Section 38.1. Conveyance by Lessee to Lessor. Effective upon the termination of this Lease Agreement, whether by passage of time or otherwise, the Lessee, in consideration of the granting of this Lease Agreement by the Lessor to the Lessee, grants and conveys unto the Lessor and Lessor's legal representatives and assigns forever all of Lessee's right, title and interest in the Leasehold Improvements. In the event that the Lessee is contesting a termination of this Lease, the automatic conveyance conferred by this Section shall be ineffective to convey to the Lessor any of Lessee's right, title and interest in the Leasehold Improvements, subject to the Lessee continuing to pay Rent and abide by the terms and conditions of this Lease, until the final resolution of such dispute. ARTICLE XXXIX APPLICABLE LAW Section 39.1. Applicable Law. This Lease Agreement shall be construed and enforced in accordance with the laws of the State of Florida. 109 ARTICLE XL NOTICES Section 40.1. Manner of Mailing Notices. In every case where under any of the provisions of this Lease Agreement or otherwise it shall or may become necessary or desirable to make or give any declaration or notice of any kind to the Lessor or the Lessee, such notice shall be in writing and shall be sent by United States certified or registered mail, postage prepaid, return receipt requested, addressed: if to Lessor at: with a copy to: City Manager City of Miami, Florida 3500 Pan American Drive Miami, FL 33133 City of Miami Department of Community Planning and Revitalization Asset Management Division 444 SW 2 Avenue, Suite 325 Miami, FL 33130 Additionally, during the time of construction of the Leasehold Improvements, Lessee shall send a copy to: and if to Lessee, at: with a copy to: City of Miami Department of Community Planning and Revitalization Development Division 444 SW 2 Avenue, 3rd floor Miami, FL 33130 Dr. Bern Levine Parrot Jungle & Gardens, Inc. 11000 S.W. 57th Avenue Miami, FL 33156 M. Ronald Krongold, Esq. 201 Alhambra Circle, 8th Floor Coral Gables, FL 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. 110 Section 40.2. Notice to Leasehold Mortgagees. All notices, demands or requests 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, return receipt requested, postage prepaid, addressed to the Leasehold Mortgagee at a place as the Leasehold Mortgagee may from time to time designate in a written notice to the Lessor and Lessee. Copies of all notices shall simultaneously be sent to the other of the Lessor or the Lessee, as the case may be. Section 40.3. Sufficiency of Service. Service of any demand or notice as in this Article provided shall be sufficient for all purposes. Section 40.4 When Notice Deemed Given or Received. Whenever a notice is required by this Lease Agreement to be given by any Party to the other Party or by any Party to a Leasehold Mortgagee, the notice shall be considered as having been given when a registered or certified notice is placed in the U.S. Post Office mail as provided by this Article and shall be deemed received on the third business day thereafter and for all purposes under this Lease Agreement of starting any time period after notice, the time period shall be conclusively deemed to have commenced three business days after the giving of notice and whether or not it is provided that a time period commences after notice is given or after notice is received. ARTICLE XLI MISCELLANEOUS PROVISIONS Section 41.1. Captions. The captions of this Lease Agreement and the index preceding it are for convenience and reference only and in no way define, limit or describe the scope or intent of this Lease Agreement, nor in any way affect this Lease Agreement. Section 41.2. Conditions and Covenants. All the provisions of this Lease Agreement shall be deemed and construed to be conditions as well as covenants, as though the words specifically expressing or importing covenants and conditions were used in each separate provision. III Section 4 1 , 3, Entire Agreement. This Lease Agreement (together with all of the Exhibits and other attachments (if any) hereto, all easement agreements between the Parties and the agreement between the Parties for the construction of the Infrastructure Improvements) contains the entire agreement between the Parties concerning the Subject Property and the related leasing transaction between the Parties and shall not be modified in any manner except by an instrument in writing executed by the Parties or their respective successors or assigns in interest. This Lease Agreement shall supersede any and all prior agreements and negotiations between the Parties, whether oral or in writing (which are hereby expressly merged into this Lease), including, without limitation, the Request for Unified Development Proposals for the Watson Island Botanical Garden Attraction issued by the City on May 30, 1995 and the Proposal to the City of Miami Watson Island Botanical Garden Attraction submitted by the Lessee on August 29, 1995, Section 41.4 Time of Essence as to Covenants of Lease Agreement. Subject to any extensions expressly provided with respect thereto, time is of the essence as to the performance of the provisions of this Lease by the Lessee and Lessor. Section 41.5. Recording, Documentary Stamps. The parties hereto shall, at the request of either party, execute a short -form lease and have it properly acknowledged for the purpose of recording in the Public Records of Dade County, Florida. Such short -form lease shall have included therein such of the provisions hereof as may be requested by either of the parties. The cost of any such recordation, cost of any State of Florida documentary stamps which legally must be attached to any or all of said papers, and the cost of the applicable Dade County and State transfer tax shall be paid in full by Lessee. ARTICLE XLII MINORITY AND WOMEN PARTICIPATION AND EQUAL EMPLOYMENT OPPORTUNITIES Section 42.1 Minority and Women Participation. The Lessee shall comply with the provisions set forth in The Minority and Women Business Affairs and 112 Procurement Program Ordinance of the City of Miami and the First Source Hiring Agreement, as they currently exist and as they may be amended hereafter, both of which are attached hereto as Exhibit I and incorporated herein. In compliance therewith, 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, recruitment advertising 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 during construction of the Leasehold Improvements: (a) it will not discriminate against any employee or applicant for employment because of race, creed, color or national origin and will take affirmative action to assure that applicants are employed and that employees are treated during employment without regard to race, creed, color or national origin; (b) post in conspicuous places, available to employees and applicants for, employment, notices the form of which is to be provided by the Lessor setting forth provisions of this nondiscrimination clause; (c) in all solicitations or advertisements for employees placed by or on behalf of the Lessee state that all qualified applicants will receive consideration for employment without regard to race, creed, color or national origin; and (d) to send to each labor union or representative of workers with which the construction contractor has a collective bargaining agreement or other contract or understanding a notice, the form of which is to be provided by the Lessor, advising the union or representative of the Lessee's commitments and posting 113 copies of the notice conspicuous places available to employees and applicants for employment. Section 42.3. Affirmative Action. Lessee shall have in place an Affirmative Action/Equal Employment Opportunity Policy and shall institute a plan for its achievement which will require that action be taken to provide equal opportunity in hiring and promoting for women, minorities, the disabled and veterans. Such plan will include a set of positive measures which will be taken to insure nondiscrimination in the work place as it relates to hiring, firing, training and promotion. In lieu of such a policy/plan, Lessee shall submit a Statement of Assurance indicating that their operation is in compliance with all relevant Civil Rights laws and regulations. ARTICLE XLIII COVENANTS TO BIND AND BENEFIT RESPECTIVE PARTIES AND TO RUN WITH THE SUBJECT PROPERTY Section 43.1, Covenants to Run with the Subject Property. All covenants, agreements conditions and undertakings in this Lease Agreement shall extend and inure to the benefit of and be binding upon the successors and assigns of each of the Parties, the same as if they were in every case named and expressed, and they shall be construed as covenants running with the Subject Property and the Leasehold Improvements. Wherever in this Lease Agreement reference is made to any of the Parties, it shall (unless expressly provided to the contrary in such reference) be held to include and apply to, wherever applicable, also the officers, directors, successors and assigns of each Party, the same as if in each and every case so expressed. ARTICLE XLIV UNAVOIDABLE DELAY Section 44.1 Unavoidable Delay(s). For the purpose of any of the provisions of this Lease (except the payment of Minimum Annual Rent or Percentage Rent), neither the Lessor nor the Lessee, as the case may be, nor any successor in interest, shall be considered in breach of or in default of any obligations under this Lease, 114 including but not limited to the preparation of the Subject Property for development, the performance of the conditions precedent to Lessee taking Possession of the Subject Property, the commencement and completion of construction of the Leasehold Improvements, or progress in respect thereto in the event of an Unavoidable Delay(s), in accordance with the provisions of Section 44.2 below. Section 44.2 Manner of Notice of Unavoidable Delay(s) and Conditions With Respect to Performance of Obligations. In the event of Unavoidable Delay(s), the time for performance of obligations, covenants, and/or agreements which are affected by the Unavoidable Delay(s) shall be extended for the period of time of the Unavoidable Delay(s) or for such period of time as may be necessary under the circumstances, provided that the Party seeking the benefit of the provisions of this Section shall: (a) As soon as reasonably possible, but no later than Thirty (30) days after such Party shall have become aware of the Unavoidable Delay(s), give notice, in writing, to the other Party of the Unavoidable Delay(s), which notice shall specify which of the obligations, covenants, and/or agreements of this Lease 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; (b) As soon as reasonably possible, the Party claiming such Unavoidable Delay(s) shall commence and shall continue diligently the performance of such obligations, covenants, and/or agreements so delayed. Section 44.3 Payment 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 defer the payment of Minimum Annual Rent and/or Percentage Rent (provided all sums so delayed shall be paid by Lessee within Twenty -Four (24) months of the date that the business is reopened) due to an Unavoidable Delay, but only if such Unavoidable Delay results in Lessee's business at the Subject Property being closed to the public for more than Seven (7) days. In the event that there are business 115 interruption insurance proceeds paid to the Lessee in connection with the Unavoidable Delay with respect to the Minimum Annual Rent and/or Percentage Rent, and if such proceeds are less than the total Minimum Annual Rent and/or Percentage Rent due, then the difference may be deferred as provided above. ARTICLE XLV GENERAL PROVISIONS Section 451 l . Conflict of Interest. Lessee agrees to comply with the conflict of interest provisions of the Miami City Code, Dade County Code and the State of Florida. No member, official, or employee of the Lessor shall have any personal interest, direct or indirect, in this Lease Agreement, nor shall any member, official, or employee participate in any decision relating to this Lease Agreement which affects his or her personal interests or the interests of any other entity or Person in which he or she is, directly or indirectly, interested. No member, official, or employee of the Lessor shall be personally liable to the Lessee, its successors and assigns, or anyone claiming by, through or under the Lessee or any successor in interest to the Subject Property, in the event of any default or breach by the Lessor or for any amount which may become due to the Lessee, its successors and assigns, or any successor in interest to the Subject Property, or on any obligation under the terms of this Lease Agreement. Section 45,2. Brokerage. The Lessee and the Lessor each represent and warrant to the other that neither has dealt with any broker or finder in connection with the transactions contemplated and each agrees to indemnify, defend and hold the other harmless of and from any and all manner of claims, including, but not limited to, reasonable attorneys fees and expenses, incurred by the other party and arising out of any claim by any broker or finder if it is ultimately determined that either party has dealt in contravention of its representation and warranty. Section 45.3. Assignability and Binding Effects. Subject to all provisions respecting the rights of assignment or Subleasing, this Lease Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto. 116 Section 45.4. Duplicate Originals. This Lease Agreement may be executed in any number of copies, each of which shall constitute an original of this Lease Agreement. Section 45.5. No Third Party Beneficiaries. Nothing in this Lease shall confer upon any person, other than the Parties hereto and their respective successors and permitted assigns, any rights or remedies under or by reason of this Lease; provided, however, that a Leasehold Mortgagee or its affiliated designee or nominee shall be a third party beneficiary hereunder to the extent such Leasehold Mortgagee or such designee or nominee is granted rights hereunder. Section 45.6 Authority. (a) The Lessor and Lessee represent to each other as follows: (i) That each has, and has exercised, the applicable Legal Requirements necessary to adopt, execute and deliver this Lease Agreement and perform its obligations; and (ii) That this Lease Agreement has been duly executed and delivered by each and constitutes a valid and binding obligation of each enforceable in accordance with its terms, conditions, and provisions; and (b) Lessor specifically represents that the execution and delivery of this Lease Agreement has been duly authorized and is in accordance with and pursuant to all Applicable Laws (including without limitation those of the Lessor) and the Constitution of the State of Florida. Section 45.7 Waiver of Jury Trial. The Parties hereby knowingly, irrevocable, voluntarily and intentionally waive any right either may have to a trial by jury in respect of any action, proceeding or counterclaim based on this lease, or arising out of, under or in connection with this Lease or any amendment or modification of this Lease, or any other agreement executed by and between the parties in connection with this Lease, or any course of conduct, course of dealing, statements (whether verbal or written) or actions of any Party hereto.. This waiver of jury trial provision is a material inducement for the Lessor and Lessee entering into the subject transaction. li7 Section 45.8 Attorney's Fees and Expenses. In the event of any litigation between the parties, all expenses, including reasonable attorneys fees and court costs, at both the trial and appellate levels incurred the prevailing party, shall be paid by the non prevailing party. ARTICLE XLVI LESSEE'S RIGHT OF SALE Section 46.1. Lessee's Right of Sale. In the event Lessor voluntarily elects to sell the Subject Property to a third party, other than a governmental entity, during the Lease Term, Lessor hereby agrees to include in the solicitation for prospective purchasers of the Subject Property as a condition of the sale, that Lessee shall have a period of thirty (30) days from the date the City Commission accepts the offer to purchase within which to notify Lessor of its option to either (a) attorn to the successful purchaser in accordance with Section 8.7, or (b) terminate this Lease subject to having the proposed purchaser purchase its Leasehold Interest based upon the Appraised Value as defined in Section 46.2 below. In the event Lessee exercises option (b), the Lessee shall receive the Appraised Value at the time the City and the successful purchaser close on the Subject Property. Section 46.2. Right of Appraisal. Should the Lessor determine that it will sell the Subject Property as provided in Section 46.1 above, Lessor shall notify Lessee of its intent to sell and within Thirty (30) days of said notice, the Parties shall cause to be made appraisals of the Leasehold Estate according to the provisions set forth below, for the purpose of establishing the fair market value of the Leasehold Estate (hereinafter the "Appraised Value"). The Appraised Value herein shall mean the estimate of value of the Lessee's Leasehold Estate in the subject Lease based upon pertinent facts and the experience and judgment of the appraisers. The appraisers shall utilize all three approaches to value, ie. income approach, cost approach and market data approach, in determining the Appraised Value and shall reconcile the respective values in arriving at the Appraised Value of the Leasehold Estate. 118 a) Appraisals shall be made by Three (3) real estate appraisers, each of which (i) shall be a member of the American Institute of Real Estate Appraisers, and (ii) shalI have not less than Ten (10) years experience in managing and appraising real estate. One appraiser shall be selected and appointed by the Lessor (the "Lessor's Appraiser"), and shall be paid by Lessor; one shall be selected and appointed by the Lessee (the Lessee's Appraiser") and shall be paid by the Lessee; and the third shall be selected and appointed by the first 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 Appraiser and the Lessee's Appraiser to agree on the Third Appraiser within Fifteen (15) 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 Ten (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 make the appointment, then the appraiser appointed by the party not in default shall appoint the second appraiser, and the two appraisers so appointed shall appoint the Third Appraiser. If the first two appraisers so appointed shall fail to agree on such third appraiser within Fifteen (15) days after their appointment, the Third Appraiser shall be appointed in the same manner provided in Subsection 46.2(a). (c) After appointment, the three appraisers, after having been duly sworn to perform their duties with impartiality, shall proceed promptly to prepare an appraisal of the Appraised Value of the Leasehold Estate of the Subject Property. The Appraised Value of the Leasehold Estate as determined by the appraisers shall be binding and conclusive on the Lessor and the Lessee and shall be included in the solicitation to purchase the Subject Property as being binding upon the successful purchaser. The appraisers may, in their discretion, dispense with formal hearings, it being agreed that their task will be solely that of appraisal. 119 In witness, the Lessor has caused this Lease Agreement to be executed in its name and on ittsl behalf' by the City Manager of the City of Miami, Florida the City Clerk- of the 'City of Mier., `Florida, and the Lessee has signed as of the date and year first' above writttr!: LESSOR: CITY OF I, a gnu cipal corporation of the S to of fi ride By: Walter Foernan City Clerk Edward Marqu City Manager APPROVED AS TO INSURANCE APPROVED AS TO FORM AND REQUIREMENTS: Frank Rollason, Chief Division of Risk Management ATTEST: CORRECTNESS: LESSEE: PARROT JUNGLE & GARDE,f•, INC.,. a Florida Corporation By; M.ry Levine Be Secretary President 120 v. e • EXHIBIT A EXHIBIT B EXHIBIT C EXHIBIT D EXHIBIT E EXHIBIT F EXHIBIT G EXHIBIT II EXHBIT I EXHIBITS Sketch of Watson Island Survey of Subject Property Legal Description of Subject Property Conceptual Site Plan Infrastructure Improvements Deed and Partial Modification Restrictions Possession Date Certificate Survey of Ichirura Miami Japan Garden Minority and Women Business Affairs and Procurement Program Ordinance & First Source Hiring Agreement .7:71 ♦ EVIEItaADES LAKE • P 14R(3T 3QTiYL • loco seat covered Performance theatre n JNGLE 'I -EATER & 'ILDI:IF , SHOWCASE DVEkEI]_ WALKWAYS Weather Prfitected access to major facilitiesw tilt resting areas/ views to e=ik:}-libits HL4 UR- . -1iI r n PANESE GARDEN YACHT CL[JB, JUNGLE TRAILS AND GARDENS - 061forest vegetation SPECIAL EVENT PARKIYi G 500 CARS NIALN ARRIVAL • yal0Thii-14164 Bus 'droj oOE . . Fcdestrian/Bike Access 111 BANQQOET/SPECCAL. EVENT FACILITY • Bancjyet Facility _-: • . Alain Enirancc/Tic! eting • Food Sery cd Adrri nisf ation • Guest Services :: EXI1 [LET D. rprriiAv_t • Wr� .-";pry. .-.,t't. •- Sr_ VIRFLO �.- ENtytmiculpT RAMPS ATE`-' MA C ARTHWI CAUSEWAY 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-1-A IN DADE COUNTY, FLORIDA AS RECORDED IN PLAT BOOK 56 AT PAGE 71 OF THE PUBLIC RECORDS OF DADE COUNTY, FLORIDA, SAID POINT BEING THE POINT OF TANGENCY OF THE CENTERLINE OF THE MOST NORTHERLY CURVE OF GENERAL DOUGLAS MACARTHUR CAUSEWAY, RUNNING SOUTHEASTWARDLY FROM THE NORTHWESTERLY CORNER OF WATSON ISLAND AND HAVING A RADIUS OF 1432.69 FEET AND A CENTRAL ANGLE OF 62°00'00"; THENCE RUN NORTH 60°52'45" EAST, ALONG THE NORTHEASTERLY PROLONGATION OF THE RADIAL LINE OF THE ABOVE MENTIONED CURVE FOR. A DISTANCE OF 670.74 FEET TO THE POINT OF BEGINNING OF THE 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 1 AND ITS SOUTHEASTERLY EXTENSION, FOR 85730 FEET•, THENCE SOUTH 60°52'45" WEST, FOR 223.24 FEET TO ITS INTERSECTION WITFI A LINE PARALLEL AND 100 FEET NORTHEAS t ERLY OF THE MOST NORTHERLY RIGHT OF WAY LINE OF SAID MACARTHUR CAUSEWAY; THENCE NORTH 29°07' 15" WEST, PARALLEL TO SAID RIGHT OF WAY FOR 1100.97 FEET TO A POINT OF TANGENCY; A THENCE ALONG A TANGENTIAL CURVE CONCAVE TO THE SOUTHWEST HAVING A RADIUS OF 800.00 FEET, A CENTRAL ANGLE 25°16'16" FOR AN ARC DISTANCE OF 352.85 FEET; THENCE SOUTH 90°00'00" WEST FOR 94.95 FEET TO ITS IN FERSECTION WITH THE NORTHERLY RIGHT OF WAY LINE OF SAID MACARTHUR CAUSEWAY AND A CIRCULAR CURVE CONCAVE TO THE SOUTHWEST, SAID POINT BEARS SOUTH 41°51'52" WEST FROM ITS CENTER; B THENCE ALONG SAID CURVE HAVING FOR ITS ELEMENTS A RADIUS OF 1090.64 FEET, A CENTRAL ANGLE OF 6°47'18" FOR AN ARC DISTANCE OF I29.22 FEET TO A POINT OF COMPOUND CURVATURE; C THENCE ALONG A COMPOUND CURVE CONCAVE TO THE SOUTHWEST HAVING FOR ITS ELEMENTS A RADIUS OF 1441.25 FEET, A CENTRAL ANGLE OF 20'27'49" FOR AN ARC DISTANCE OF 514.75 FEET; D THENCE NORTH 34°54'16" EAST FOR 338.29 FEET; THENCE SOUTH 55°05'44" EAST, FOR 726.47 FEET TO ITS INTERSECTION WITH THE APPROXIMATE SHORELINE OF BISCAYNE BAY; THENCE CONTINUE ALONG SAID SHORELINE FOR THE FOLLOWING EIGHT COURSES: (1) SOUTH 88°21'37" EAST FOR 63.38 FEET; (2) THENCE SOUTH 86°09'34" EAST FOR 68.47 FEET; (3) THENCE SOUTH 82°33'21" EAST FOR 131.22 FEET; (4) THENCE SOUTH 72°18'34" EAST FOR 87.21 FEET; (5) THENCE SOUTH 69°29'02" EAST FOR 102.34 FEET; (6) THENCE SOUTH 67°53'24" EAST FOR 82.52 FEET; (7) THENCE SOUTH 69'05'26" EAST FOR 94.62 FEET; (8) THENCE NORTH 80°40'44" EAST FOR 46.77 FEET TO ITS INTERSECTION WITH THE SOUTHWESTERLY LINE OF SAID LEASE AREA I; THENCE SOUTH 08°07'15" EAST ALONG SAID LINE FOR 288.12 FEET TO THE POINT OF BEGINNING AND THERE TERMINATING. CONTAINING 18.6134 ACRES MORE OR LESS (INCLUDES 2.5025 ACRES MORE OR LESS OF SUBMERGED LANDS) EXHInIT F. Deed and Partial Modifici,.ion of Restrictions BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND OF THE STATE OF FLORIDA PARTIAL MODIFICATION OF RESTRICTIONS DEED NO. 19447 KNOW ALL MEN BY THESE PRESENTS: That WHEREAS, the BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND OF THE STATE OF FLORIDA, ("BOARD OF TRUSTEES"), is by Section 253.03, Florida Statues, authorized and empowered to modify restricted uses for certain lands under the terms and conditions set forth herein; and, WHEREAS, the said BOARD OF TRUSTEES conveyed to the City of Miami ("CITY") certain lands more particularly described in Deed No. 19447, recorded in Deed Book 3130, Page 257, Public Records of Dade County, Florida; and WHEREAS, said Deed No. 19447 contains the following restrictions ("Original Restrictions"): PROVIDED, HOWEVER, anything herein to the contrary notwithstanding, this deed is given and granted upon the express condition subsequent that the Grantee herein or its successors and assigns shall never sell or convey or lease the above described land or any part thereof to any private person, firm or corporation for any private use or purpose, it being the intention of this restriction that the said lands shall be used solely for public purposes, including municipal purposes and not otherwise. PROVIDED, FURTHER, anything herein to the contrary notwithstanding, this deed is given and granted upon the further express condition subsequent that the Grantee herein or its successors or assigns shall not give or grant any -license or permit to any private person, firm or corporation to construct or make by any means, any islands, fills, embankments, structures, buildings or other similar things within or upon the above described lands or any part thereof for any private use or purpose, as distinguished from any public or municipal use or purpose. It is covenanted and agreed that the above conditions subsequent shall run with the land and any violation thereof shall render this deed null and'void-and the above -described -- lands shall, in such event, revert to the Grantors or their successors. F--1 WHEREAS, the CITY is desirous of leasing that portion of the lands conveyed to the CITY by Deed No. 19447 which is described in Exhibit A attached hereto and made a part hereof to Parrot Jungle & Gardens, Inc., a Florida corporation, to allow for the relocation and development of a botanical garden and aviary attraction known as Parrot Jungle & Gardens, on Watson Island and in order to accomplish the same, it is .necessary that the Original Restrictions be modified by the BOARD OF TRUSTEES; and WHEREAS, said BOARD OF TRUSTEES did approve this partial Modification of Restrictions on the day of 1996. NOW THEREFORE, IT IS HEREBY COVENANTED AND AGREED: THAT the Original Restrictions pertaining to the lands described in Exhibit A are hereby modified by the BOARD OF TRUSTEES to allow the CITY to lease the lands described in Exhibit A to Parrot Jungle & Gardens, Inc., a Florida corporation for the relocation and development of a botanical garden and aviary attraction known as Parrot Jungle & Gardens, on Watson Island on the lands described in Exhibit A, subject to the following conditions ("Special Conditions"): 1. The CITY will insure and guarantee that the Parrot Jungle & Gardens, Inc. shall obtain all permits required by law for the proposed development. 2. The CITY shall submit annual financial audit reports to the BOARD OF TRUSTEES which have been completed by an independent certified public accounting firm in accordance with generally accepted accounting standards and practices which certify the accuracy of the quarterly rental payments required by paragraph four (4) of this agreement 'as described below. Page 2 of 6 Partial Modification of Restrictions Deed No. 19447 3. Development of the lands described in Exhibit A as a botanical garden and aviary attraction known as Parrot Jungle & Gardens shall be completed within five years of the execution of the Partial Modification of Restrictions which shall be verified by the CITY in annual reports to the BOARD OF TRUSTEES until the proposed development is completed. 4. The CITY shall make quarterly payments to the BOARD OF TRUSTEES - for fifty consecutive year or as long as Parrot Jungle & Gardens is located on the land described in Exhibit A, whichever is a longer period of time, beginning no later than thirty (30) days after the date on which the City will receive rental revenue from Parrot Jungle & Gardens in the amount of thirteen thousand one hundred twenty- five ari-d-0G/184 edolia-rs- ($13,125.0Q) twenty-six thousand two hundred and fifty and 00/100 dollars ($26,250.00) annually or the cumulative total of the following, whichever is greater: a. 1.28 0.64 percent of gee-t_e*4-y annual gross ticket sales at Parrot Jungle & Gardens; b. 4-44- 0.23 percent of quarterly annual gross banquet/restaurant food revenues at Parrot Jungle & Gardens; c. 0.30 of qua-rte l-y annual gross retail gift/concessions sales at Parrot Jungle & Gardens. The above payment will be paid by the CITY on an annual basis for the first two (2) years it is due. Thereafter, for the remaining forty- eight (48) years, the CITY will calculate the portion of the above annual amount due to the BOARD OF TRUSTEES each month. This Partial Modification of Restrictions applies only to the, lands described in Exhibit A and shall _not affect or modify the restrictions imposed upon the other lands described in Deed No. 19447 which have not previously been waived by the BOARD OF TRUSTEES. Page 3 of 6 Partial Modification of Restrictions Deed No. 19447 If the CITY refuses or otherwise fails to comply with all of the Special Conditions in a timely manner to the satisfaction of the BOARD OF TRUSTEES, this Partial Modification of Restrictions shall , terminate, cease to exist, and be null and void ab initia and the Original Restrictions contained in Deed No. 19447, except for those which have been previously waived by the BOARD OF TRUSTEES, shall be re -imposed on the lands described in Exhibit A. This Partial Modification of Restrictions is clarified but not substantially altered by the Memorandum of Agreement entered into between the Division and the CITY on March , 1997. This Partial Modification of Restrictions shall become effective upon execution by the parties. IN WITNESS WHEREOF, the parties have caused this Partial Modification of Restrictions to be executed on this day of , 1997. Witness Print/Type Witness Name Witness Print/Type Witness Name BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND OF THE STATE OF FLORIDA By: Page 4 of 6 Partial Modification of Restrictions Deed No. 19447 {SEAL) Percy W. Mallison, Jr., Director, Division of State Lands, Department of . Environmental Protection F- 4 ATTEST: CITY OF MIAMI, A MUNICIPAL CORPORATION OF THE STATE OF FLORIDA Sy: By: Walter J. Foeman Edward Marquez City Clerk City Manager APPROVED AS TO FORM AND CORRECTNESS: By: A. Quinn Jones, III City Attorney STATE OF FLORIDA COUNTY OF LEON The foregoing instrument was acknowledged before me this day of , 19 , by Percy W. Mailisan, Jr., as Director, Division of State Lands, Department of Environmental Protection, acting as agent for and on behalf of the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida. Re is personally known to me. Notary Public, State of Florida Printed/Typed/Stamped Name Commission Number: Commission Expires: Approved as to Form and Legality DEP Attorney Page 5 of 6 Partial Modification of Restrictions Deed No. 19447 F-5 EXHIBIT A COMMENCE AT A POINT KNOWN AS P. T. STATION 25+50 OF THE OFFICIAL MAP OF LOCATION AND. BOTLVEY OF A PORTION OF SECTION 8706, DESIGNATED A P.M-T OF STATE ROAD A-1-A IN DADE COUNTY, FLORIDA, AS RECORDED IN PLAT BOOK 56, AT PAGE 71, OF THE PUBLIC RECORDS OF DADE COUNTY, FLORIDA, SAID POINT BEING THE POINT OF TANGENCY OF THE CENTER LINE OF THE MOST -NORTHERLY CURVE OP GENERAL DOUGLAS MACARTHUR CAUSEWAY, RUNNING SOUTHEASTWARDLY FROM THE NORTHWESTERLY CORNER OF WATSON ISLAND AND RAVING A RADIUS OF 1.432.69 FEET AND A CENTRAL ANGLE OF 52°00'00"; THENCE RUN NORTH 60°52'45" EAST, ALONG THE'NORTHEASTERLY PROLONGATION OF THE RADIAL LINE OF THE ABOVE MENTIONED CCi1tVE FOR A DISTANCE OP670.74.FEET TO THE POINT OF BEGINNING OF THE PARCEL TO BE DESCRIBED. (SAID POINT BEING ALSO THE POINT OF BEGINNING O1? LEASE AREA 1 MIAMI YACHT CLUB), THENCE SOUTH 09°52'53" EAST ALONG THE SOUTHWESTERLY LINE OF SAID LEASE AREA 1 AND ITS.SOCRSTERLY EXTENSION, FOR 857.30 FEET; THENCE SOUTH 60°52'45" WEST, FOR 233.24 FEET TO IT$ INTERSECTION WITH A LINE PARALLEL AND 100 FEET NORTHEASTERLY --OF THE MOST NORTHERLY RIGHT OF WAY LINE OF SAID MACARTHUR CAUSEWAY; THENCE NORTH 29°07'15" WEST, TO SAID PARALLEL THE RIGHT OF WAY FOR 1100.97 FEET TO A POINT OF TANGENCY; (Al THENCE ALONG A TANGENTIAL CURVE CONCAVE TO THE SOUTHWEST HAVING A RADIUS OF 800.00 FEET, A CENTRAL ANGLE OF 25°16`16" FOR AN ARC DISTANCE OF 352.85 FEET; THENCE SOUTH 90°00' 00" WEST FOR 94.95 FEET TO ITS INTERSECTION WITH THE NORTHERLY RIGHT OF WAY LINE OF SAID MACARTHUR CAUSEWAY AND A CIRCULAR CURVE CONCAVE TO THE SOUTHWEST, SAID POINT BEARS SOUTH 41°51'52" WEST FROM ITS CENTER; (S) THENCE ALONG SAID CURVE HAVING FOR ITS ELEMENTS A RADIUS OF 1090.64 FEET, A CENTRAL ANGLE OF 06°47.' 18" FORM ARC DISTANCE OF 129.22 FEET TO A POINT OF COMPOUND CURVATURE: (C) THENCE ALONG A COMPOUND CURVE CONCAVE TO THE SOUTHWEST HAVING FOR ITS ELEMENTS A RADIUS OF 1441.2E FEET, A CENTRAL ANGLE OF 26°27'49" FOR AN ARC DISTANCE OF 514.7E FEET; (D) THENCE NORTH 34°54'16" EAST FOR 338.29 FEET; THENCE SOUTH 55°OS'44" EAST, FOR 726.47 FEET TO ITS INTERSECTION WITH THE APPROXIMATE SHORELINE OF BISCAYNE BAY; THENCE CONTINUE ALONG SAID SHORELINE FOR THE FOLLOWING EIGHT COURSES: (1) SOU'ni 88°21'37" EAST FOR 63.88 FEET; (2) THENCE SOUTH 86°09'34" EAST FOR 68.47 FEET; (3) THENCE' SOUTH 82°31'21" EAST FOR 131.22 FEET; (4) THENCE SOUTH 72°18'34° EAST FOR 87,21 PEET; (5) THENCE SOUTH 69°29'02* EAST FOR 102.34 FEET; (6) THENCE SOUTH 67°53'24" E'AST.FOR 82.52 FEET; (7) THENCE SOUTH 69°05'26" EAST FOR 94.62 FEET; (8) THENCE NORTH 80040'44" EAST FOR 46.77 FEET TO ITS INTERSECTION WITH THE SOUTHWESTERLY LINE OF SAID LEASE AREA 1; THENCE SOUTH 08°07'15* EAST ALONG SAID LINE FOR 288.12 FEET TO THE POINT OP BEGINNING AND THERE TERMINATING. CONTAINING 18.6134 ACRES MORE OR LESS (INCLUDES 2.5025 ACRES MORE LESS OF SUBMERGED LANDS). Page 6 of 6 Partial Modification of Reetriction8 Deed No. 19447 EXHIBIT G POSSESSION DATE CERTIFICATE This Possession Date Certificate is entered into by Lessor and Lessee pursuant to Section 4.3 of the Lease. t) Definitions. In this certificate the following terms have the meanings given to them: Lessor: City of Miami Lessee: Parrot Jungle and Gardens, Inc. Lease: Lease and Development Agreement dated , 1997 between Lessor and Lessee. Subject Property: As legally described in Exhibit C attached to the Lease and depicted in that survey identified as Exhibit B attached to the Lease. 2) Confirmation ofPossession Date: Lessor and Lessee confirm that the Possession Date of the Lease is , 19 and the expiration date of the Initial Term is 3) Acceptance of the Subject Property. Lessee accepted the Subject Property on Lessor and Lessee have executed this Possession Date Certificate as of the dates set forth below: ATTEST: CITY OF MIAMI, a municipal corporation of the State of Florida By: City Clerk City Manager Print Name Print Name STATE OF FLORIDA) - COUNTY OF DADE ) The foregoing instrument was acknowledged before me this day' of , 1997, by who is personally known to me or who has produced (type of identification) as identification and who did (did not) take an oath. Signature of Notary Public Print Name Commission No. G- APPROVED AS TO FORM AND CORRECTNESS: City Attorney PARROT JUNGLE & GARDENS, INC., ATTEST: a Florida Corporation By: By: Print Name & Title Print Name & Title Date STATE OF FLORIDA ) ) COUNTY OF DADE ) The foregoing instrument was acknowledged before me this day of , 1997, by , who is personally known to me or who has produced (type of identification) as identification and who did (did not) take an oath. Signature of Notary Public Print Name Commission No. G-2 LNUStU LtWNL JtSLFi I N I I Ulv r um. JAPANESE GADENS SKETCH TO ACCOMPANY LEGAL DESCRIPTION ,.rul9'r pt1W 91l ■ S JAPANESE GOODS ARE; • O 9117 ACRES y a P. 0. C. e5o� R 7I1•6 NOTE 1 NOT A W9D SURVEY 0RAF1C SCALE 1 MEIM;9r CERTIFY' THAT THE ATTACHED SSETCN 77 iCtCRIPANT LEGAL DEW !PI ICO LETS Tit MINIMUM 1ECILSICAI 57414049D5 SET 67 DE FLOP IDA STATE 001R0 OF SURYE10P5 A10 MAPPERS PURSUANT TO CHAPTER 172.027, FLORID; 5147U3E5 470 CHAPTER 61G17 OF TIe FLORIDA ADMIRI RATIrE C90E. S IGMED. G'-:: `�{ FERNANDO 2. 6A7ELL KS + f CERTIFICATE 140. 2621 511TE OF FL0RI05 NOT VALID UNLESS SEALED 11 TN SURVEYOR'S EMBD56ED SEAL .14P411E5E GARDE/6 LEGAL Di551IPT10N CLN0IENCE AT A F01111 61D101 A3 P. T. STA. 25.50 OF DIE OFFICIAL UP OF LOCATION AND SUDTET OF II PORTION OF SECTION 6706. DESIGNATED AS A PART OF STATE RMA0 A-1-4 IN DAZE MITT. FLQUA. AS RECOROEO IS MAP BOOM 56 AT PACE 71 OF DE PLELIC RECo7gS OF DADE MIAMI, r1OR IDA. SAID POINT BE INT, TE7 POW/ ff TIYGEAC► OF TIE CEPS LIIE CF THE CST N0RTHERLY CUM OF SEIER& p017GLA9 NACaRINUO C41.1SEMlr argosies SOUTIIEJ15TMtSgLY FROM THE 41011111ME51f$Y CORNER OF BA150M ISLAMD ARTS Wain A RADIOS OF 6432-ES' FEET LOD A CENTRAL AMLE OF 62•0IEO0': rMENrE wan 60'S2'*5 EAST ALONG DIE 10171EA51£R.Y PRD illina 1oM DF THE RADIAL LIME OF TIE A60YE MEM71074FO CAW F01 4 775157474E OF 165.00 FEET. 1HENNTE RUM NUM ZrOr 11• EAST L 0157A155 OF 211.55 FEET: IIIEII 5 ACA1111 61' 09'04- EASY A 0131AICE OF 26.22 FEET TO 1HE ACTUAL PDIMT ff BEL114IIMz THEW{ 41.4745 AM £M1511ARa FORE CIAE FOR TIE EDO-1411I. I2 COURSES: I.- Thome 543•Sr41.t•E 1 q!Tanee er 74,60 foot: Thanes 55290.30.67E a lIi744e1 of 102,83 FAIL: 3.- TMAO, 11/9.19.46. of • Inatome* If 76.98 i*et: 4. Thane M3e25•411.. 2'E 1 Shims 4r 77,55 Tilt: 5.- Throes Kr ir31.3•E 1 d191mea If 51.02 feet; 6.- Noel M28'11'23.3•1' a distance of 73,16 rat. 7.- Theme 979.1516. 5•M 4.'1191a44o of 39.46 fort: B.- Tanner U61.25'33,5.1 • dlsi*nce of 16.62 feet; 9,- THdnto M76.2r 10. 1'M 1 di slimes 1f 50,70 Ito l: 10. • Theses 501.43' 19.0.1 a 0111/991 Of 55. S7 foot: It. Tne•ti 54111.36,2'1 1 d191anes of Se.ST feet:. 12. - %tort 50744'411.0•1 • 01914ne• 1T 18.34 rest: ' to 1h. POINT OF 6E0EI641fG and MMrt t.rllnslln0. CsollIsInl 1n 411 .91 atrta. sofa 1e 1151. FERNANDO Z. GATELL P. L. S. , INC. PROFESSIONAL SURVEYORS AND MAPPERS 1700 S.H. 57TH AVENUE SUITE NO. 219 MIAMI, FLORIDA, 33155 EXHIBIT H - SURVEY OF ICHIMURA MIAMI JAPAN GARDEN p•-•-(7;....f-ALPSY•fee lege 0.,. 06/12/95 5.1.4. t•- 300• 0r...n A.R. ,016 002,15 § 18-58 ject to the provisions of Iaw. (Ord. No. 9572, § 1, 2-10-83) Secs. 18.69--18-66. Reserved. FINANCE ARTICLE 1V.5. MlNORrrYAND •WOMEN BUSINESS AFFM:RSAND PROCUREMENT PROGRAM* • Sec. 18-67. Short title. This article shall be known and may be cited as `the Minority and Womenn Business Affairs and Procurement Program Orrtinance: of the City of (Ord. No. 10062, § 1, 12-19-85) See. 18.68. Definitions. For the purpose of. this article, .the following terms, phrases, words,, acid their derivations shall have the following meanings: .Ailirmativeactionplanlliall include the pro- jected annual goals and the timetables which will be used to employ and/or pitacure with women and minorities a nondiscrimination policy statement and any other actions, which will be used to ensure equity in employment and the utilization of 'minority and fema%vned businessesr - Business enterprise rnea135 any corporation, part- nership, individual, sole proprietorship, joint stock company, joint venture; professional association or any other legal entity that is properly licensed to do business with the city and/or county and/or the state. . Contract means agreements for the procure- ment of goods, services, or construction of facili- ties for the city. •Editor's note=orii. Na..14062, 4 8. adopted Dec. 19, 1985, repealed Ord. No: 9775, §§ 1-8, adopted Jan. i9, 1984, codified as § 18-72, concerning the minority procurement program. At the discretion of the editor, §§ 1-7 of Ord. No. 10082 have beea codified as art. IV.5, §§ I8-67--18.74, City code cross reference ---Lease of city-owoed property to require minority procurement clause, § 2-363. County code cross reference --Procedure to increase participation of Flack vendors of commodities and services in county contracts, § 2-8.7. E)II1BZT 1 *If Facilities means all totally or partially public financed projects including, but without lfniitj tion, unified development projects, municipal pul tic works • and municipal improvements to tit extent they are financed with city money, ut;Jfr city property, or require city services. Goat means the percentages of the annual dollar volume of procurement, expenditures deter- mined by this article to be offered for minority 1 and women business participation. • Goods and services include; without limitation, Public works,' improvements; facilities, profes- sional services;-conmiodities,'Supplies, materials I and equipment. ° Joint venture shall mean an association of per- sons or legal entities with the intent to engage in and carry out a .single business enterprise for profit. . Minority and tlromett%owned business enterprise • means n business -_:enterprise in::which at Ieast lefty -one (51):percent'ofsaid`enterpz se :owned by Blacka, F.spai ca; ar. woolen' *hose 'manage- ment and 'daily biiiiness operations are controlled by one (1) or more Blacks, Hispanics or: women. Procurement expenditures shall . mean a pur- chase, payment, distribution, loan or advance for the purpose o£ aoquirii g:or;providing goods 'and services. . Set -aside is the jerti which' will be ust d to designate a given purchase tir contract or/a por- tion of a given purchase or contract award for Black, Hispanic and/or women -owned ,businesses. Set -asides may only be utilized whore"it is deter- mined, prior to the invitation to bid or request for proposals, that there are a sufficient number of certified • Black, Hispanic and/or women -owned businesses to afford effective competition for the purchase. Vendor means any business entity providing goods, services or equipment to the city through a purchase, field or blanket order or contract. (Ord. No. 10062, § 2, 12-19-85; Ord. No. 10538, § 1, 1- I2-89; Ord. No, 11272, § 2, 6- I -q t Sun,, hi^ § 18-69 M[AMI CODE § 18-73 Sec: 18.69. Established; components. (a) A minority and women business affairs and procurement program for the city is•hereby estab-' • lished.. The city manager's • office shall be -head •accountable for the full and tarceftl,implenienta- tion of•the minority axid.wornenbusinens affairs arnd procurement program . bylrroviding appropri-. ate recopsmendataoiis=for.: action• by;the, city. corgi- naission. • (b)-For the purpose "cif assisting the city man- ager in the impleznentataan of 'said:prograrm; a minority and women business affairs aind.procure- znent committeeis hereby established, consisting of : an.. appropriate ;auinber• -of—members, -#A ..be appointed•by the city manager, with fulirepresen- tation of Hispanics, Blacks and • women to be responsible for monitoring the implementation of the program and making recommendations' for achieving 'the requirements ,of'this :article. • 'lxe Committee shall be responsible tor generating -Yearly progress :reports to the •city•`comm_ission and -the concmvuity.at Iarge, . •. (c) The city manager shall;itiliziixg a isting resources, create an, office of minority and women business affairs and procurement; and shall pro- vide the appropriate staff and resources neces- sexy for the .performance of all such administra- tive duties; authorize and .implement ..-the..._ administrative guidelines _andprocedures re- quired; and ensure compliance withthe functions required to promote the achievement -of the pro- •gram's goals and objectives of increasing the ,'volume of city procnrom.ent_and contracts With Black, Hispanic and women -owned businesses. (Ord. No. 10062, § 3, 1249-85) Cross reference —Department of general services admin- idtretioa to rxsntain office of nvMerity and women business affairs and procurement § 2-263. Sec. 18-70. Duration of program. The minority and women business affairs and procurement program established herein shall be in effect only until such time as the effects of prior unwarranted discrimination against Blacks,. His- panics and women have been compensated for, at which time the goals and set -asides provided for herein shall no longer be observed. Such need &pp. No. St 1218 shall be reviewed every two (2) years by the city commission, upon the recommendation of the city manager. (Ord. No. 10062, § 7, 12-19-85) . Sec. 18-71. Applicability_ Except.' where federal 'gtate,l v :ar::regula lions mandate to the-tentrabslhkinlakisiona of ' this article will be •applicshle to alI eity:p iiid; bid, contract or other agreements:negotiated by the city. (Ord. No. 10002, § 6; 12-1985) Sec.:It3-72.:Objectives: lase or Fat-.si.5ides.• (a) The objective of the cityis to achie-ve a goal of awarding a minimum-offifty-fiftypercent of the total annual dollar volume afall;procurement expenditures to Blacks, ;11ispanica and':women- owned sman business enterprises to 4.be appor- tioned as follows seventeenOntie,rcei�t a'Blsolcs, seventeen ''(17)-peraent qto sea dcp'ai 'seven- crrrcent to :veorineia,=il'Cix oaI s all be applied to'all citybids;and'contracts':• .::; (b) To fur her the goal: of. incre$sing..the ,tota! annual volume of all procurement expenditures to minority and women -owned business enterprises, authorityfor a minority and women -owned busi- ness enterprise procurement et aside is hereby established for use by the city Manager as he or she may deem advisableor.necessary to increase the participation of Blacl£;-Hispenic, and women - owned businesses in city..procurement contracts. (Ord. No. 10062, § 4A,12-19-85;.Ord:.No.10538,.§ 2, 1-12-89) Sec. I8-73..Required statements for solicita- tions or notices;. required state" ments on contracts.and awards. (A) It shall be mandatory.for all city solicita-_. tions or notices inviting -.bids . propasais, quotes, • letters of interest and/or qualifications, to contain the approved requirements for M/WBE participa- tion and to have these requirements incorporated by reference, along with the inclusion of the appropriate compliance forms, into the resulting contracts and/or bid award documents. The city § 18-73 FINANCE office of minority/women business affairs is to be consulted prior to the issuance of any such adver- tisements or solicitations for the purpose of deter- mining the recommended goals or set -asides to be included, • and again prior . to the signing of § 18-73 Stipp No, 51 1218.1 4 18-73 FINANCE 4 18-74 resulting contracts/bid awards for the purpose of verifying compliance thereto. - (B) It shall be mandatory for all city contracts and/or procurement award documents to contain the following (1) A specific reference to the applicability of the minority and women business affairs and pro- curement program established by this article. (2) A provision stating the right of the city to terminate and cancel any contract or contrac- tual agreement entered into, including elim- ination of the individual and/or business en- terprise froze consideration and participation in future city contracts, on the basis of hav- ing submitted deliberate and willful, false or misleading information as to his, her or its status as a Black, Hispanic andlor women - owned business enterprise and/or the quan- tity and/or type of minority and women -owned business participation. (3)' A requirement that each successful bidder or offeror agree to provide a sworn statement of compliance with the provisions of this article and its specific applicability to the purchase or contract award under consideration; such statement shall certify that the bidder or of- feror, during the course of time involved in the performance of the contract sought by suck bidder or offeror, shall not discriminate against any business, employee or applicant for employment because of age, ethnicity, race, creed, color, religion, sex, national origin, handi- cap or marital status. (4) A statement of the extent to which the busi- ness enterprise has as one (1) or more of its partners or principals persons who are Black, Hispanic or women, or is a joint venture com- prised of a nonminority and minority busi- ness and/or women -owned enterprise. (5) A requirement that each bidder, proposer, or vendor submit along with the bid or proposal an affirmative action plan /AAP). Any signif- - icant equity participants, joint venture par- ticipants, subcontractors, suppliers or other Su pp, No.32 parties to the bid or proposal shall also be required to submit such plans, The objective of the city is to require that bidders, propos- ers, and vendors doing business with the city take certain actions designed to assure equi- table participation of Blacks, Hispanics and women in their hiring and promotion activi- ties, In view of this objective: (a) All city vendors and contractors shall im- plement specific affirmative action plans as approved by the director of the office MAYBE affairs and shall demonstrate a good faith effort to ensure equal employ- ment opportunities for Blacka, Hispanics and women on each purchase or contract, Vendors and contractors shall document these 'efforts fully and shall provide re- ports as may he required by the city. (b) Vendors and contractors shall permit ac- cess to their books, records and accounts by the office of MfV BE affairs or her designee for the purpose of investigation to ascertain compliance with the forego- ing requirements. (c) In the event of venders' or contractors' noncompliance with the affirmative ac- tion requirements of this section, the city manager may suspend in whole or part, cancel or terminate the bid or contract award and/or impose other sanctions as may be determined to be appropriate. (6) A provision Specifying the requirements for continued bidder or offeror eligibility includ- ing minority and female involvement. (Ord. No. 10062, § 4B, 12.19-85; Ord. No. 10538, § 3, 1-12-89) Cross reference —Affirmative action division, 4 2-236,1. Sec. 18-74. Good -faith effort required. Bidders or offerors shall be required to demon- strate a reasonable and good faith effort to solicit and obtain the participatiOn of qualified minority and women -owned businesses in all bid and pro- posal documents. (Ord. No. 10062, § 5, 12 19-85) 1219 (1-4) 4.18.75 MIAMI CODE 4 18-78 Sec. 18-75. Contractor's certificate of compe- tency. (a) For the purpose of this section, the follow- ing terms, phrases, words, and their derivations shall have the following meanings: (1.) Business enterprise means any corporation, partnership, individual, solo proprietorship, joint stock company, joint .venture, professional association or any other Iegal entity. (2) Construction contract means agreements for the erection, alteration, demolition, or repair of any public building or any other kind of public work or improvement. (3) Minority and uy)men-owned business enterprise means a business enterprise in which at least fifty-one.(b1) percent of said enterprise is owned by Blacks, Hispanics or women whose man- agement and daily business operations arc controlled by one (1) or more Blacks, Hispan- ics or women. (b) The owners of minority or woolen business enterprises submitting bids for construction con- tracts to be let by the city must be certified in the field for which the contract is to be let pursuant to chapter 489, Florida Statutes or Chapter 10, Code of Metropolitan Dade County in order to qualify for the minority or women preference on such contract. (Ord. No. 10332, §§ 1, 2, 10-22-87) Editor's note —Sections 1 and 2 of non amen datory Ord. No. 10332, adopted Oct. 22, 1937, have been codified as 118.76 at the editor's discretion. Section 8 of the ordinance provides an effective date of January 1, 1989. Sec. 18-76. Administrative procedures. The departments of finance, public works and general services administration are authorized to establish the required administrative procedures to insure compliance with the provisions as set forth herein. The finance department is mandated to insti- tute payment procedures which will insure, in those instances in which the M/WBE bid or con- tract requirements result in contracts, subcontracts or joint ventures for M/WBEs, that compensation provided pursuant thereto shall be in the form of Supp, No. 32 1220 a check made payable to the primary contractor, bidder or proposer, and (if appropriated jointly) to the minority/women business enterprise subcon- tractor or joint venture partner in an amount not to exceed the subcontracted or joint venture amount, based upon approved invoices submitted by the prime contractor, proposer or joint venture, to the city. In the event a dispute should arise as to the performance or payment of the primary contrac- tor or bidder/proposer or the MfWBE, under the terms and conditions of the city contract or pro- curement award document, compensation shall be withheld until such time as the dispute is re- solved in accordance with the procedures set forth in this chapter for resolving such disputes. All adzni..nistrative directors shall amend their eii ting policies and procedures or to create such new ones as may be required to insure and report on compliance with all aspects of this article. (Ord. No. 10538, § 4, 1.12-89) Sec. 18-77. Designation of director as respon- sible official for bid requirements, guidelines, etc. The director of the office of minority/women business affairs is designated as the official re- sponsible for establishing M/WBE bid and con- tract/award requirements, creating and implement- ing compliance guidelines, monitoring compliance, resolving disputes, and reporting on all of the above to the city manager. (Ord. No. 10538, § 5, 1-12-89) ARTICLE V. SALE OF REALTY' Sec, 18-78. Methods and procedures for sales and leases. Any sale, conveyance or disposition of any in- terest, including any Leasehold in real property, owned by the city, the off-street parking depart- ment, or the downtown development authority shall be made in the manner set forth in this *Note —See the editor's note for Art. IV of this chapter. City charter references —Powers with respect to acquir ing and disposing of property, 4 3(0 contracts for sates or lease of real property, § § 29-A(d), 29-11, (1"-5) § I8-10 FINANCE evaluation of sculpture, painting, artistic struc- tural design, and/or other appropriate art media for display or integration in public places, (1) All nominations- for membership on this committee shall be provided to the city corn- • mission. by a three -member. -nominating panel, consisting -of one (1) . representative of each•of the following. the cultural V.=r- utiyes Council, Inc.; the South Florida chapierof the American Institute of Archi- tects; and the bade County Council of Arts and ficiences. (2) PerSons:.wishing. to nominate others for membership on the committee, or persons seeking to be nominated themselves as cord- mittee Members,. may furnish their names directky to the nominatingpanel, as well as to members of the city commission, who will forward said names to the nozninatingpanel for a review and nnnlysis pf the qual ca- tiens ofthose.,persons. (3) Anyone whose name is received by the nom- inating parishmust- agree to serve, if ap- pein; before he or she is .nominated by tits p};cd,anel.... (4) The five (6) initial committee members shall • be'selecied from a list of ten (10) nominees provided by -the nominating.panel. If the city ebriunissian appoints less than five (5) coinniittee members from such List, the ;paine`I ivill;siibrait-two (2) additional names for each membership vacancy remaining. In the event membership vacancies still re- main, the panel will again submit two (2) additional names for each membership va- cancy., This process Shall continue until all vacancies -have been felled. (5) Future selections to fill vacancies created by expiring terms shall be made by the city commission from a list of names provided by the nominating panel consisting of two (2) nominees for each vacant membership position. . -.. - (6) Initial membership terms of office shall be as follows: Group I; Three (3) members serving initial five-year terms. Sup). No, 48 1195 § 18.11 Group II:: Two (2) members serving initial three-year terms. (7) - Upon the expiration of these initial terms, succeeding appointments shall be made for terms of five (1) years. (8)' The committee shall meet atthe, direction Of the city manager, at a time and place - designated by the manager, and shall act in an advisory capacity. All such meetings are to•be•open to the public. '(Code 1967, § 16.5.4; Ord. No. 8759, § 1, 2-23-78) County code reference --Metropolitan Dada County Council of Arta and 8eiencea, 2-291 et seq. Sec. 18.11..First•source hiring agreements. (a) This commission approves implementation of the first -source hiring agreement policy and re- quires as a condition precedent to the execution of service contracts for facilities, services; and/or re- ceipt of grants and loans, for projects of a nature thatcreate new -jobs, the successful negotiation of trat source hiring agreements between the orga. tthatiori.o`r individual receiving said contract and the authorized representative unless such an agreement is found infeasible by thecity man- .agergaud Such finding approved by the city com- mission at a public hearing. (b) For the purpose of this section, the following - terms, phrases, words and their derivations shall have the following meanings: • (1) Service contracte means contracts for the procurement of services by the city which include professional services. (2) Facilities rneuna all publicly financed projects, including but without limitation, unified development projects, ninnicipal public works, and municipal imp'rpvements to the extent they are financed through public Money services or the use of publicly owned property. (3) Services includes, without Iimitation,.p.ublic__ works improvements, facilities, professional - ".. services, commodities, supplies, materials and equipment. (4) Grants and loans means, without limita- tion, urban development action grants (UD- (I-6) § 18.11 M.IAMI•CODE § 18.22 •A3), -economic ideveeopmetit`agency .con- struction loans, loans .from Miami Capital Development, incorporated,.°and.all federal aiid state ,grants administered by the city. (6) Authorized representative aneanns the.Pri- yate .Tredustry Thutiaii.aOf Setith Florida/ South..,Morida pn a oymen't .and. T ainirtg •Ponsertitun;orlits anoceseorius la* recip- - omit a1'reciera .irit3 ittLat 4 ff r.ii ig nd m.- Viayrnent fiords. . . ' • :(c) irhe authorized repi ntatrve• ashnii a o- t ate+eatxttirst-aoaree1uring gr em nt (d) The. prunzuybeneric ialiescfthe first -source hiring agreement slia,B be. participants•afthetity #zaini fgaaiideinpR nt pzogra ns,i nd otherres- ideiits of the titY. .(Ord. I'7o. I1)O32, §§ 1-14, 9-12-85) Sec. 18.12.. Budget arid finances review com- taii ttee. (n) Estcrblishmment. There is bereby.established board to be down as the "Cityb'1Vif iniBudget ;aid Pirieneesd2evieW Oommi.flee"-fur ice,purwse Trf iirovidin, an .independent :assessment con- cerning the city's budgeto. and finances and making recommendations to the city manager and the city commission on all issues related to the city's budget, cost-effectiveness, productivity and effi- ciency. (b) Membership. The budget :and `finances re- view committee shall consist of rive (5) members to be appointed by the city commission. (c) Officers; rules ,of procedure. 'The committee shall select a ,chairperson front among its mem- bers..A vice -chairperson may also be selected by ;the committee from among its members to serve as chairperson at any meeting in the absence of the.chairperson. The committee may establish its own rules of procedure for the conduct of business. (d) Meetings.. Meetings shall be scheduled by the committee at least once each month and if there is no business pending before the committee, the meeting may be dispensed with. Special meet- ings may be ra#led by the chairperson or by any three (3) members of the committee upon reason• able notice being given to all committee mem bers. Supp. No. 48 1i96 {e} Vacancies. Vacancies in the !membership of the budget and finances review committee shall be filled by the city commrgcion and shall be only for the unexpired term of the member affected. (f) City liaison. The director ofhiance or his/her designee shall serve as the tty administration's liaison with the budget and fiinences.review com- mittee:. _ • (g) Support. It shailbe the dut ti'f tiretity-inan- ager to provide admii istrative support toile com- mittee, which shad include the sarvicea of an.in- dividuai to keep minutes of meetings, maintain correspondence, post nneetingnotioes;-file reports and perform all other. necessary zsupport funs- tions. (Ord. No: 1I13Q, § 11, 3,24.94) Secs. 18.13-I8.20. -Reserved. ARTICLE TI. BONDS" Sec. 18-21. Registration permitted All bonds of the city shall be registrable as to principal alone and also as to both principal and interest, in accordance with the terms and condi- tions provided in this article for endorsement upon such bonds, and the director of finance is hereby appointed and designated bond registrar for that purpose. No charge shalt be made to any bond- holder for the privilege of registration herein granted. (Code 1967, § 18-6) Sec. 18-22. Form of registration. There shall be printed upon the reverse of bonds provided for in the preceding section the following provisions for registration: ,` This bond may be registered as to principal in the Bond Register of the City Of Miami by the Director of Finance of said City as Bond- Regis- trar or by such other Bond Registrar as may be legally appointed by the governing body of said City, notation of such registry to be made hereon by such Bond Registrar, and .this bond may 'City charter references —Temporary bonds, § 31; gen- eral bonds, § 32. (1-7) J-96-547 7/25/96 ��l f • • CY`k, tl RESOLUTION NO. 96- 5 " 57 A2� ?fl A RESOLUTION, WITH ATTACHMENT(S), AUTHORIZING THE CITY MANAGER TO EXECUTE A NEGOTIATED AGREEMENT, IN SUBSTANTIALLY THE ATTACHED FORM, WITH THE STATE OF FLORIDA, BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST, FOR A PARTIAL MODIFICATION OF THE DEED RESTRICTIONS ON WATSON ISLAND NECESSARY TO ALLOW THE PROPOSED DEVELOPMENT OF A BOTANICAL GARDEN ATTRACTION UNDER A PROPOSED LEASE TO PARROT JUNGLE AND GARDENS, INC., PROVIDING FOR COMPENSATION TO THE STATE OF NOT MORE THAN SEVEN AND ONE HALF PERCENT (7.5%) OF CERTAIN REVENUES AS SET FORTH IN SAID AGREEMENT. 3.10 WHEREAS, pursuant to applicable Sections of the Charter and Code of the City of Miami, Florida (''Charter and Code"), as amended, pertaining to Unified Development Projects, Parrot Jungle and Gardens, Inc. submitted a proposal to the City of Miami ("City") for the development and operation of a botanical garden attraction on approximately 18.6 acres of City -owned waterfront property on Watson Island on a lease basis for a period of forty-five (45) years with the option to renew for one additional fifteen (15) year period; and WHEREAS, said proposal was duly evaluated and accepted by the City and the proposed lease transaction as "subsequently approved by a majority of voters of the City at a referendum held November 7, 1995; and ATTACHMENT (5) CONTAINED CITY COM?'rISSIQN MEETING OF JUL 2 5 1996 Aesolution No. 96- 555 WHEREAS, the subject City -owned property, along with the balance of Watson Island and other lands, were given to the City by the State of Florida ("State") under Deed No. 19477 which stipulated that said lands be used solely for public purposes, including municipal purposes, thereby requiring approval from the State for any lease to a private entity; and WHEREAS, pursuant to Resolution No. 95-868, adopted December 7, 1995, the City requested the Governor and Cabinet of the State of Florida, sitting as the Board of Trustees of the Internal Improvement Trust (the "Board"), to grant either a determination of consistency or a waiver of the deed restrictions as it pertains to the proposed development and lease; and WHEREAS, the City Manager and staff of the Department of Community Planning and Revitalization have worked diligently with the Florida Department of Environmental Protection ("DEP") to reach an agreement regarding said matter, which is to be heard by the Board at its July 23, 1996 meeting; and WHEREAS, the City Manager and staff have recommended, and the State has agreed to accept a form of compensation in consideration of a partial modification to said deed restrictions, said compensation being based on a recent appraisal of the proposed project, and to be paid annually by the City; and WHEREAS, 'the calculation of said compensation has been agreed as: $26,250 (= 7.5% of $350,000, the minimum rent from said appraisal) or the cumulative total of the following, whichever is greater: 0.53% (= 7.5% of 7%) of gross revenues from ticket sales (admissions), 0.23% (= 7.5% of 3%) of gross - 2 - 96-- 555 revenues from banquet and restaurant food sales, and 0.3% (= 7.5% of 4%) of gross revenues from retail, gift and concession sales; and WHEREAS, the attached agreement provides complete and detailed terms and conditions for the partial waiver of said deed restrictions; NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The recitals and findings contained in the Preamble to this Resolution are hereby adopted by reference thereto and incorporated herein as if fully set forth in this Section. Section 2. The City Manager is hereby authorized to execute a negotiated agreement, in substantially the attached form, with the State of Florida, Board of Trustees of the Internal Improvement Trust, for a partial modification of the Deed Restrictions on Watson Island necessary to allow the proposed development of a botanical garden attraction under a proposed lease to Parrot Jungle and Gardens, Inc., and providing for compensation to the State of Florida of not more than seven and one half percent (7.5%) of certain revenues as set forth in said agreement. l/ 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. - 3 - 96-- 555 Section 3. This Resolution shall become effective immediately upon its adoption. PASSED AND ADOPTED this 25Ch day of . July , 1996. ATTEST; WALTER J CITY CLE PREPARED AND APPROVED BY: APPROVED AS TO FORM AND CORRECTNESS: 4 Wit: /S4�-�bLLO, MAYOR 96- 55 305 858 t 6 ].8 P . ©3 D '-04-2001 12:59 CITY CLERKS OFFICE ODXF 'CATION TO LEASE AND DEVELOPMENT AGREEMENT THIS MODIFICATION TO LEASE AND DEVELOPMENT AGREEMENT (the "Modification") is made as of the /4/» day of 4 / , 2000, between the CITY OF MIAMI, a municipal corporation in the State of Florida, acting by and through the City Manager (the "City Manager"), and with the approval of the City Commission of Miami, having its offices at 3500 Pan American Drive, Nhami, Florida 33133 ("Lessor" or "City") and PARROT JUNGLE AND GARDENS OF WATSON ISLAND, INC,, a Florida corporation, flk/a PARROT JUNGLE & GARDENS, INC,, a Florida corporation, whose principal office is located at 11000 Southwest 57 Avenue, Miami, Florida 33156 ("Lessee"). RECITALS WHEREAS, Lessor and Lessee are parties to that certain Lease and Development Agreement, dated as September 2, 1997 (the "Lease"); and WHEREAS, Lessor and Lessee desire to modify the Lease as hereinafter set forth. NOW, THEREFORE, in consideration of the premises, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Lessor and Lessee, agree to be legally bound, and hereby agree as follows: 1. The above recitals are true and correct and are hereby incorporated and referenced as if fully set forth herein, Unless otherwise indicated, all capitalized terms used in this Modification shah have the respective meanings given them in the Lease. 2, The Lease is modified in the following respects: (a) The definition of "Acceptable Operator" is hereby amended to state as follows: "Acceptable Qperator" (except as provided under Section 6,1, (b)(xi) hereof) means an entity possessing the business experience, good reputation, financial resources and adequate personnel necessary for the proper performance of all of Lessee's obligations under this Lease in a manner consonant with the quality, reputation and economic viability of the Project, including (without limitation) the obligation of Rent theretofore payable by Lessee under this Lease and possessing a minimum of Five (5) years experience in the successful operation and management of a destination visitor attraction, which is approved by the City Commission, which approval shall not be unreasonably withheld or delayed. O T-[84-2001 12:59 CITY CLERKS OFFICE } 305 858 1610 P.04 (b) The definition of "Gross Revenue" is hereby amended to add the following at the end of the sentence: For purposes of this definition, the term Subtenant shell be deemed to include an "Acceptable Operator" as the term is defined in Section 6.1(b)(xi) hereof, operating the Project pursuant to an agreement authorized under this Lease. (c) Article VI is hereby amended as follows: (1) (h) Nothing contained in 6.1.(a) shall be derned to prohibit a Leasehold Mortgagee (or its designee) from taking back a purchase money mortgage in connection with its sale of the Leasehold in the event it succeeds to the interest of the Lessee under this Lease. The following is hereby added to the end of Section 6.1. (b)(i), Provided, however, that Leasehold Mortgagee's consent may be given or withheld in its sole discretion in the event of any proposed mutual termination or surrender of the Lease (except upon expiration of the Term). (iii) Section 6. I.(bXiv) is hereby amended to change the first reference to the word "and." in the first sentence to the word (iv) Section, 6.1.(b) is hereby amended to add the following subsection (x): (x) Should this Lease terminate by reason of any default by Lessee hereunder, the City Manager shall give notice thereof to Leasehold Mortgagee and the City Manager shall, upon written request by Leasehold Mortgagee to the City Manager received within sixty (60) days after such termination, execute and deliver a new lease of the Leased Property to Leasehold Mortgagee for the remainder of the tern of this Lease with the same covenants, conditions and agreements (except for any which have been satisfied by or on behalf of Lessee prior to termination) as are contained herein. No such termination of this Lease shall effect a termination of this subparagraph (x) and the sights granted Leasehold Mortgagee herein. The City's execution and delivery of such new lease shall be made without representatioe or warranty of any kind or nature whatsoever, either express or implied, including without limitation, any representation or warranty regarding title to the Subject Property or any Improvements or the priority of such 2 QCT--04--2001 13 : 00 CITY CLERKS OFFICE 305 056 1610 F.05 new lease (except for representations or warranties regarding title with respect to actions taken by the City during the period commencing on the date of termination of this Ltxtse and terminating on the date of such new lease). The City's delivery of any Improvements to Leasehold Mortgagee pursuant to such new lease shall be made without representation or warranty of any kind or nature whatsoever, either express or implied; and Leasehold Mortgagee shall take any Improvements "as -is" in their then eurrent condition. Upon execution and delivery of such new lease, Leasehold Mortgagee shall be responsible for taking such action as may be necessary to remove Lessee named herein from the Project. The City agrees to cooperate with Leasehold Mortgagee in connection with the foregoing. The City's obligation to enter into such new lease of the Subject Property with the Leasehold Mortgagee shall be conditioned upon Leasehold Mortgagee having remedied and cured. all monetary defaults hereunder and having remedied or having commenced and diligently prosecuting the cure of all non -monetary defaults of Lessee susceptible to cure by any party other than by Lessee. The Leasehold Mortgagee shall pay all expenses, including reasonable attorneys` fees of outside counsel, if any, Incident to the preparation., execution and delivery of such new lease. If the City receives written requests in accordance with the provisions of this Section 6.1(b) from more than one Leasehold Mortgagee, the City shall deliver the new lease to the Leasehold Mortgagee who is, among those Leasehold Mortgagees requesting a raew lease, the holder of the most senior Leasehold Mortgage, unless the holder of a more junior Leasehold Mortgage, not later than the date of execution of such new lease and as a condition thereof, (i) either (x) pays in full the sums secured by any or all Leasehold Mortgages which are prior in lien to the Leasehold Mortgage held by such Leasehold Mortgagee, or (y) agrees to reinstate the liens of any or all Leasehold Mortgages which are prior in lien to the Leasehold Mortgage held by such Leasehold Mortgagee with the same relative priority as existed prior to the termination of this Lease, and (ii) delivers to the City such documents as may reasonably be required by the City to evidence satisfaction of the aforementioned requirements. If any Leasehold Mortgagee having the right to a new lease pursuant to this Section 6.1(b)(x) shall elect to enter into a new lease but shall fail to do so or shall fail to take the action required above, the City shall so notify all other Leasehold Mortgagees (if any) and shall afford such other Leasehold Mortgagees a period of sixty (60) days from such notice within which to elect to obtain a new lease in accordance with the provisions of this Section. Except for any liens reinstated pursuant to this Section, any new lease entered into pursuant to this 3 OCT- 4-2001 13:30 CITY CLERKS OFFICE r 35 B58 1610 F. Section shall be prior to any mortgage or other lien, charge or encumbrance on the fee of the Subject Property and shall have the sane relative priority in time and in right as this Lease and shall have the benefit of all of the right, title, powers and privileges of Lessee hereunder in aid to the Project. During the Term of the Lease, the City shall not grant any mortgage or other lien on its interest in the Subject Property unless such mortgage or lien, by its tezxras, is subordinate to this Lease, and any new lease entered into pursuant to this Section. (iv) Section 6.10) is hereby amended to add the following subsection (xi): (xi) For purposes of this Article VI, the term "Acceptable Operator" means an entity possessing the business experience, good reputation, resources aid adequate personnel necessary for the proper performance of all of ]Lessee's obligations under this Lease in a manner Consonant with the quality, reputation and economic viability of the Project and possessing a minimum of Five (5) years experience in the successful operation and management of a destination visitor attraction, which is approved by the City Commission, which approval shall not be unreasonably withheld or delayed. (d) Article VIII is hereby amended as follows: (i) Section S.3.(a) is hereby emended in its entirety to state as follows; (a) Any Transfer by a Leasehold Mortgagee to an Investor, which shall mean (i) an "Acceptable Operator," as the term is defined in Section 1,2 of this Lease, or (ii) any national bank organized under the laws of the United States or any commercial bank, or any swings and loan association, savings bank, trust company or insurance company organized under the laws of the United States of any state of the United States, or any pension, retirement or welfare trust or find supervised by a governmental authority of aray state or the United States or any such trust or fund administered by an entity which is supervised by a governmental authority, or any 'wail street investment firm (and shall include any agent., designee or nominee of an Investor which is wholly owned or controlled by such Investor) that has entered into an agreement, in form and substance acceptable to the City, wth an Acceptable Operator as defined in Section 6.1, for the continued operation of the Project during the Term. 4 DC I-a4- 2001 13 : ❑0 ITY CLERKS OFF ICE f 305 858 1610 F.07 (ii) Section 8.3.(b) is hereby amended to add the following at the end of the sentence after the words "Operator": "as defined in Section 6.1, under an agreement in form and substance acceptable to the City." (e) In. the event the Lessee fails to exercise the option of extending the Lease for the Extension Terns, as set forth in Section 3.1.(b) of the Lease, prior to the date which is 120 days prior to the date that Lessee's right to exercise this option terrninates, the City shall so notify Leasehold Mortgagee and Leasehold Mortgagee shall have the same right as Lessee to exercise such option on behalf of Lessee and if the City Manager receives notice from a Leasehold Mortgagee that the Lessee is exercising the aforedescribed option, the Lease shall be deemed extended for the Extension Term with the same force and effect as if said option had been duly and timely exercised by Lessee. (f) Notwitbstanding anything in the Lease to the contrary, it is agreed that the Leasehold Improvements described in the Lease as Phase .1 and Phase II Improvements shall not be constructed in phases but as one project, all of such improvements to be substantially completed, subject to Unavoidable Delay and Permitted Delay, not later than thirty (30) months from the Possession Date. Lessee hereby agrees to submit the Developmeet Plans, the Construction Documents and a schedule describing the timetable for construction and completion of all Leasehold Improvements not later than sixty (60) days after the Possession Date. (g) Section 4.4 is hereby amended to clarify that the Payment and Performance Bond or Letter of Credit described therein shall be obtained by the Lessee or the General Contractor of the Project, aod.shall guaranty the payment and perfomean.ce of the General Contractor's construction obligations. (h) The first sentence of Section 9.1(b) is hereby amended to state as follows: "The City grants unto Lessee, its successors and assigns, for the benefit of the Subject Property, the following:" (i) The first sentence of Section 9.1(b)(ii) is hereby amended to begin as follows: "the non-exclusive right and easement....." {j) It is further clarified that the easements granted by Lessor to Lessee as described in Section 9.1(b) and elsewhere in this Lease shall be situated on, in, upon, under, over and/or across the applicable portions of Watson Island owned by the Lessor (a pictorial description of which is set forth on Exhibit "A" attached hereto, less those portions previously conveyed by Lessor to the Florida Department of Transportation), and which are not a part of the Subject Property. 3. All references in the Lease to the "Lease" or the "Lease Agreement" shall hereafter refer to the Lease, as modified by this Modification. 5 ❑CT-04-2001 13;01 CITY CLERKS ❑FFICE 305 858 1610 P.08 �. So long as a Leasehold Mortgage is in existence, unless a Leasehold Mortgagee consents in writing thereto, fee title to the Subject Property and Lessee's interest in this Lease shall not merge, notwithstanding the acquisition of fee title and the Leasehold by Lessor Or Lessee, 5. Lessor and Lessee represent to each other as follows - (a) That each has, and has exercised, the applicable Legal Requirements necessary to adopt, execute and deliver this Modification; and (b) This Modification has been duly executed and delivered by each and constitutes a valid and binding obligation of each enforceable in accordance with its terms, conditions and provisions; and. (c) Lessor specifically represents that the execution and delivery of this Modification has been duly authorized and is in accordance with and pursuant to all Applicable Laws (including without limitation those of the Lessor) and the Constitution of the State of Florida, (d) Except as modified herein, all of the terms and provisions of the Lease are ratified and reaffirmed and shall remain in hill force and effect. IN WITLESS 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 ofMiami, Florida, and the Lessee as signed as of the date herein first above written, 1� 1'!'E LESSOR: CITY 1 MIAMI, a municipal corporation of the ' :2: • 1►.•a Air :.r► By: Name: W ter J an >�I City Clerk City Manager 6 OCf=04-2001 13:01 CIiY CLERKS OFFICE %0 r fly j��/�1,f ATTEST: E. t• SEAL ,' ••..• • \� Levine Seer an/ PJ Mndirk * i 7 305 850 1610 P.@S PARROT JUNGLE & GARDENS OF WATSON ISLAND, INC., a Florida corporation, f?kla PARROT MINGLE & GARDENS,.I C., a Florida corporation By: Bernard M. Levine President 0CT'--04-2001 13; 01 C I TY CLERKS OFF I CE 305 858 161a P.10 CER11FYED COPY OF RESOLUTION OF BOARD OF DIRECTORS OF PARROT JUNGLE AND GARDENS OF WATSON ISLAND, INC. We Dr. B,M. wine and Mary Levine, as President and Secretary, respectively, of Parrot Jungle and Gardens of Watson Island, Inc., a corporation duly organized and exi.sting under and by virtue of the laws of the State of Florida (the `' Corpor a"), do hereby certify that a me cy of the Board of Directors of said Corporation was duty called and held at the offices of said CorNration on the CVO' day of Qh+ ►1 2000, at which meeting a quorum was present and voted, and the following Resolution wasadopted: WHEREAS, this Corporation, £'lcla Parrot Jungle & Gardens, fro., a Florida corporation, and the City of Miami (the "City"), are parties to that certain Lease and Development Agreement, dated as September 2, 1997 (the "Lease"); and WHEREAS, this Corporation has requested and the City has agreed to enter innto a modification of the .ease; and WHEREAS, the sole Director and the shareholders of the Corporation have revieweed and approved the form and substance of the proposed Modification to Lease and Developrerit Agreement, as approved by Resolution of the City Commission (the "Modification"). NOW, THEREFORI, be it resolved that Dr. B. M .Levi and Mary Levine, President and Secretary of this Corporation, respectively, are ;hereby authorized avid instructed to do whatever may be necessary and appropriate to enter into the Modification of the Lase, and that sand officers are hereby jointly or sully mithorized and directed to execute in the name arid on behalf of this Corporation the Modification and such other documents as may be necessary or proper to carer into effect this Resolution We further certify that the meeting of the Board_ of Directors at which the foregoing Resolution was adopted was regularly called and held in accordance with the Charter and By Laws of said Corporation and that said Resolution has not been modified, rescinded or countermanded as of the date hereof. Dated at rota 64.466 , A>1 , this VOA' day of Vilsr►1 , 2000. � conininfill�oe�p CORPORATE HEAL +� A► T:4SWGFR_SEYIP.jRRQ1iCfl7OF MIAM'J IZAZ RESOLUTJQN.gioc Parrot Jungle and Gardens of Watson Island, Inc., a Florida corpwatwn By: Pit Name: Dr, Levine Title: President TOTAL P.10 OFF. REC W(. 20602PG3487 0 2 R 5 I 7 2002 AUG 19 10136 MODIFICATION TO LEASE AND DEVELOPMENT AGREEMENT THIS MODIFICATION TO LEASE AND DEVELOPMENT AGREEMENT (the "Modification") is made as of the /3 { h- day of f-1 ,,< < , , 2002, between the CITY OF MIAMI, a municipal corporation in the Sta`tt' 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/kia PARROT JUNGLE & GARDENS, INC,, a Florida corporation, whose principal office is located at 11000 Southwest 57 Avenue, Miami, Florida 33156 ("Lessee"). RECITALS WHEREAS, Lessor and Lessee are parties to that certain Lease and Development Agreement, dated as September 2, 1997 (the "Lease"); and WHEREAS, Lessor and Lessee desire to modify the Lease as hereinafter set forth. NOW, THEREFORE, in consideration of the premises, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Lessor and Lessee, agree to be legally bound, and hereby agree as follows: 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) Article I is hereby amended as follows: (1) the Subject Property is amended to exclude the area as legally described and depicted in Exhibit "A". (2) the Subject Property is amended to include the area legally described and depicted in Exhibit "13". Lessor hereby leases and demises to Lessee, and Lessee hereby leases and demises from Lessor, the area legally described and depicted in Exhibit "B". 3. All references in the Lease to the "Lease" or the "Lease Agreement" shall hereafter refer to the Lease, as modified by this Modification. t�� OFF. REC BK. 206O2PG3 88 4, So long as a Leasehold Mortgage is in existence, unless a Leasehold Mortgagee consents in writing thereto, fee title to the Subject Property and Lessee's interest in this Lease shall not merge, notwithstanding the acquisition of fee title and the Leasehold by Lessor or Lessee. 5. Lessor and Lessee represent to each other as follows: (a) That each has, and has exercised, the applicable Legal Requirements necessary to adopt, execute and deliver this Modification; and (b) This Modification has been duly executed and delivered by each and constitutes a valid and binding obligation of each enforceable in accordance with its terms, conditions and provisions; and (c) Lessor specifically represents that the execution and delivery of this Modification has been duly authorized and is in accordance with and pursuant to all Applicable Laws (including without limitation those of the Lessor) and the Constitution of the State of Florida. + (d) Except as modified herein, all of the terms and provisions of the Lease are ratified and reaffirmed and shall remain in full force and effect. IN WITNESS,WHERE.OF, 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, A`I EST:'`t., a.f`h6rnoson By _ � .: ► l�'�'''''" en LESSOR: CITY OF MIAMI, a municipal corporation of the State of F City Manager APPROV COR dro V Attorney TO FORM AND "'FF. REC BK. 2O6O2PG3489 PARROT WATSON corporation, GARDENS, By: Bernar+ hli. Levin? President JUNGLE & GARDENS OF ISLAND, INC., a Florida f/kla PARROT 7 JUNGLE & INC., a Horida corporation � f OFF. REC BK. 2O6O2PG349O STATE OF FLORIDA COUNTY OF MIAMI-DADE The SS: i foregoing instrument was acknowledged before me this %5 day of , 2002, by Bernard M. Levine as President, and Mary H. Levine as Secretary, of Parrot Ingle and Gardens of Watson Island, Inc., a Florida corporation, f/k/a Parrot Jungle and Gardens, Inc., on behalf of the corporation. He/she personally appeared before rne, and is personally known to me or produced as identification. Notary: Print Name: Notary Public, State of Florida My commission expires: SEYMOUR N. SINGER v COAf.`,fl5SlO! # 1e2505 1`X153VMS:11,12 (iO I -A 0-3.41JTfl fl FIk NCxary SCr aces & Bonding Co OFF. REC BK. 40602PG3491 EXHIBIT "A" That portion of WATSON ISLAND lying and being in Sections 31 and 32, Township 53 South, Range 42 East described as follows: 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-1-A in Miami -Dade County, Florida as recorded in Plat Book 56 at Page 71 of the Public Records of Dade County, Florida, said point being the point of tangency of the centerline of the most northerly curve of General Douglas MacArthur Causeway, running southeasterly from the northwesterly comer of Watson Island and having a radius of 1432.69 feet and a central angle of 62 degrees 00 minutes 00 seconds; thence North 60 degrees 52 minutes 45 seconds East, along the northeasterly prolongation of the radial line of the above mentioned curve for a distance of 130.00 feet to a point on the easterly right-of-way line of said MacArthur Causeway as recorded in Official Records Book 18018, at Page 1171 and Official Records Book 18699, at Page 1236 of the Public Records of Dade County, Florida; thence North 29 degrees 07 minutes 15 seconds West, along said right-of- way line, 256.28 feet to a point of curvature of a curve concave to the southwest; thence northwesterly along the arc of said curve, having a radius of 926.00 feet and a central angle of 25 degrees 46 minutes 26 seconds, a distance of 416.55 feet; thence North 54 degrees 53 minutes 41 seconds West, 3.51 feet to the Point of Beginning; thence continue North 54 degrees 53 minutes 41 seconds West, 157.45 feet to a point of curvature of a curve concave to the southwest; thence northwesterly along the arc of said curve, having a radius of 1454.25 feet and a central angle of 16 degrees 22 minutes 32 seconds, a distance of 415.64 feet; thence North 18 degrees 43 minutes 47 seconds East, radially to the last and next described curves, a distance of 4.77 feet to a point on a non -tangent curve, concave to the southwest; thence northwesterly along the arc of said curve, having a radius of 1459.02 feet and a central angle of 03 degrees 50 minutes 38 seconds, a distance of 97.89 feet (the preceding six courses and distance being coincident with the easterly and northeasterly right-of-way line of said MacArthur Causeway as recorded in Official Records Book 18018, at Page 1171 and Official Records Book 18699, at Page 1236 of the Public Records of Dade County); thence South 34 degrees 54 minutes 16 seconds West, 18.80 feet to a point of curvature of a non -tangent curve concave to the southwest (a radial line to said point bears North 14 degrees 36 minutes 45 seconds East); thence southeasterly along the are of said curve, having a radius of 1441.25 and a central angle of 20 degrees 27 minutes 49 seconds, a distance of 514.75 feet to a point of compound curvature of a curve concave to the southwest; thence southeasterly along the arc of said curve, having a radius of 1090.64 feet and a central angle of 06 degrees 47 minutes 18 seconds, a distance of 129.22 feet; thence North 90 degrees 00 minutes 00 seconds East, 35.33 feet to the Point of Beginning. W r. IW.IJ DI\. 20602PG3492 ✓/ I 1 i rr 3��es wy � LAM DeiGSCP1,a err re.. 11...aw..1 ra r•••- v.on ..a 5.1. -<rw a: wr, ••a.. r«r. a .a.•-..,n.-•.a:kw:a•1n. br a..w•I.41.4 w•...III •rr•,,, i'.nnaL eer@+.rt. • •.r I..ry 4.,u.• , NW Care. I..• « •.w«..,+m 0.54 • ep .•, ,•.r..rrear. ar?i Cron 'raw ago*.•...••r•1 M•+•>.w Vaw. ww��1••Wa .•Lit erc.c nr•w.ci&T .. MLY.ty:Y..r.e*+ near-•.m•••..• W•r.r.. e'•.••••-.•'a++�.•w.. ..Y c@ .. re yr-b-r..• . .,•••v.r••••I!r•.Ar re Yev.r.+aMYY 4WtreP; :`t•rr nr..r..a.en sr 4.• ere, new. ••ei r,..•«w.a :t n .a. e• • 'e•••...b i.rsnw al owl .ter. +..• t'M Kb+. K err. ,. o.,......r mess M... Una ••.+. ar .•v V, r.w .•r • 1,7 Owl 0k..'Ori 4 Va.... b w. r(• '•A -.. • .. b.@ ••'.•••Y @M�wzr .m.•r W..•n , an.•v Fr of, r0. v V•ar•e.e.....••4 • �.Ny srsr"c�c�r••..rl n15 •bn.• •.•r.•1ao. a•q.•wya . Ii al a.lHraM'.,e* .o�vw..•SC a.:. wwr+@!.Nw r+cw..m.41 r• cwt., _r•...r... �e..r•• rr•ur. PM:VW% SWUM • •....e:Pr• mw•.r.a« .r. or ...Art 4•.••o.••• r.. •4.4 a WIra .0 Orr Jo c4. F• 1.Clr.' Wnr:r lw M•n WO.4.1 u ere Kui as sr. y ,yW n.•r r...A ••• M......r •. Vert, •••• r.. @....uw. r.nm.. My.rt• 6-14 a.•.. ....W. • .••sw. IM. cw. •••• k :kern 8• or.. r.q� ilw.-Cuow.OJ. 44.�1••.•ri4 •.4.6-IrA•.••••L.• vs• et• tia.•.. M'. Y.• P4..',u.kws4 br.. •. - .or,K • rum •LS , r R.A •ry,L.T•' Yn w . L.wo• • M V 1vC.'s r..• nr aRTIFICI IR•b .r.•o..010 , ..k r ...•..r••e•.w an• ••V ••....r•.w +1rw••44Cmow r•su.s. I,u.1KA 7..P••by M. •••••v.'m..+... w 0 M«oarcr •awew 4 non a. .• } tl -Y nay* YwT. •... . v .•.�• •y.r.'• •••••..•••.m rag.. ///pkkkw• rm.•.l�/_ 1. ai - !{1. .. F•6•k AC its I0 LAW WF AVIROM &ASSOcIATE8. INC. SURVEYING & MAPPING 80 SW ZNAD AVENUE. SUITE 102 BOCA RATON. FLORIDA 33432 TEL. (5611 302-2604, FAX I SBi1 304-7126 *CALM r - AA - DATA 6,T/OA PREVISIONS aATR�ev'tK FCEv161ON8 DATE SY CK ev DACE. M$.A_ F Y.S13 r•Qe3 JOO MO. 0e70-12A BOUNDARY Y A 4.020CN OF: SECTIONS 31 & 32. TOWNSKU5 53 SOUTH, RANGE 42 E sT LYING ON WATSON t$ A?I WAMI DACE COURT •LO113F SHEET 1 OF 1 w 1. w.W w... 20602PG3 93 EXHIBIT "B" That portion of WATSON ISLAND lying and being in Sections 31, and 32, Township 53 South, Range 42 East, described as follows: 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 Dade County, Florida as recorded in Plat Book 56, Page 71 of the Public Records of Miami -Dade County, Florida, said point being the point of tangency of the centerline of the most northerly curve of General Douglas MacArthur Causeway, running southeasterly from the northwesterly corner of Watson Island and having a radius of 1432.69 feet and a central angle of 62 degrees 00 minutes 00 seconds; thence North 60 degrees 52 minutes 45 seconds East, along the northeasterly prolongation of the radial line of the above mentioned curve for a distance of 670.74 feet; thence South 09 degrees 52 minutes 53 seconds East, 387.30 feet to the Point of Beginning; thence continue South 09 degrees 52 minutes 53 seconds East, 470.00 feet; thence North 60 degrees 52 minutes 45 seconds East, 30.75 feet; thence North 08 degrees 45 minutes 06 seconds West, 49.29 feet; thence North 09 degrees 52 minutes 53 seconds West, 180.24 feet; thence North 13 degrees 41 minutes 45 seconds West, 134.32 feet; thence North 13 degrees 41 minutes 15 seconds West, 94.07 feet; thence South 89 degrees 32 minutes 37 seconds West, 15.03 feet to the Point of Beginning. Ic1M1'1510 54.07" xgsar/r* r 1- Aa... �~• /- I s,-+r 1 PARROT JUNGLE & GARDENS 1 1DOUGLAS MAC ART)W CAUSEWAY �O r T r` 'AMOR" WORT! ...raw....+. IM Mb... v .d.-w., ..Biwa.+ w .. .... .w...-+-...R ..w.ImeM OP 11.41. i. S6 4r`: +nr�wr MM.. Mn MM. II • MM. n...r. ww oW.Lw. ...+. w .....r .o•.. w9 ru.....y..•1 awl. P ..5.w. w..w rs n 1rN• loan. c r. ..a....r, r... Tr..i fa •, .h--w....., Dom oa . aia i. wryaecau sw «w•-•c CA - 4..n..n. . T...e. s.+. Para r.dl.au a.• . . clawara by." Cam-+.. N ~ri..wrr.� f • re. Tw}... .....nr.,00.,,,..c arc.+. v. 3....•. award. Gs M I rime aMM. MCP • ,"oa x.. ..t _. P....,.1 ..i: u b a 300,. o.o h.gr.....W.. a.u•wwPP. • fa SI .•tR rw..a 11 ,.a.+ti.+/11 o. man take ▪ ♦ ...w.w.. Piv.TqO7. 4M. N1....O lam .a.q..w..rwO«9...S..Imp M+ / �.. w MAw+.r«. of 6..• nYi�..ww ..0 r.�... u.r w...Arr..•y.•ra .. Win' .. w.i"XGG, •-.+ram +3L R•. Y w.9a..-4 a. pr n. vim. w 09.4 y... M ....CRTH S A9rnL +Tam ti....w. yvsloa. nTs r«0 -.0. rY -YOL'....il p )`x g]1No nO a*CiNditb NY. ...c. xi Sm.. 5'hr. /..OT•wa.-c. 5691,T y...r ..y wry r +e.-..wa0r.aw•• /r. a.. sow*, 0.Y MP. Ma. • y.. a. W War 0.e ..e..r.s+w.•.w..aw«. w.w•r.«•.......l • v ......• s........w.. • •... oa...«w.-..r . 5.-.._ aim. ram+.•.... 52v1,155 .fyn.. 1,5. n..rw pr. Prow., r w.... w.P.L .11YJ. R'. lti .a. IYA A V!ROM & A$8QCIAYIcSs INC. SURVEYING & MAPPING 50 S.W. 2N[) AVENUE. SUITE 1,02 SOCA RATON. FLORIDA 33432 TEL 15E11 322-2804. PAX Welt 30a-2125 EP."bEL:. •.:9a nw`....I...'w.. 111$�" w .n..`w�ro1o•.. .w •AVLS 1• . .0 R�YL${iQIVl9 pATEi by 6.. A v1al0 .{a 0 ?L by GK p/.1 �.y RY SURVEY A T NCf, CEY 5ECT IO S 31 & 32. TOWNSHIP 53 sours . RANGE 42 EAST LYING ON WATSCN MAN) KAM 6ADE GOVtf7 ` r.a9la. SHEET OF ,I 11 Assoc, owl! aria$ J]y ry. iY M.' cK•a .D.A. " "" .a. wa sa ea - --- --"------�^^- ate_ n.E ao� NO. e.io-m 3314 THIRD MODIFICATION TO LEASE AND DEVELOPMENT AGREEMENT THIS MODIFICATION TO LEASE AND DEVELOPMENT AGREEMENT (the "Modification") is made this ay of 2o1Jbe( , 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 1111 Parrot Jungle Trail, Miami, Florida 33132 ("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 as hereinafter set forth, 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 specifically mentioned in the Modification, the term "Sublease" shall ors:Document Amd 3 final 9.15-O8.doc 4 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: 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 liinited 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)." ors:Document Amd 3 final 9-15-08.doc 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 unainortized 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 5%. (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." ors'Documeni Amd 1 final9-l5-08.doc 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. 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. "CITY" CITY OF corpo /0-,29-0 By: Priscilla A. Thompson, City Clerk Pedro G. Henez, City Manager AMI, a municipal ors:Document Aind 3 final 9-15-08.doc ATTEST: Approved as to Form and Correctness "LESSEE" PARROT JUNGLE AND GA S OF WATSON ISLAND, I , ,//a Florida corporation By: ernard M.tLevine, President" Title: Approved as to Insura Requireme rrits Julie Bru kit') LeeAnn Brehm, Lyirector 9. Attorney Fr' I Risk ManagemenrDepartrnent I. ors:nocumen Arad 3 final 9-15-08.doc ATTACHMENT 1 Theme Hotel means a hotel that is ancillary, but not exclusively, for the use by patrons of the park, provided the size, type, structure, is of such a scope, as determined in the reasonable discretion of the City, to be ancillary to the destination visitor attraction. Related Retail and Entertainment means additional uses that shall be permitted as ancillary to the visitor attraction, including family attraction restaurants and other attractions and facilities customarily found in family attractions including but not Limited to, restaurants which permit shows. The Theme Hotel and Related Retail and Entertainment shall be used not only to accommodate patrons of the park but will enhance the use of the Banquet Facilities, and retail, provided the size, type, structure and marketing, among other things, is of such a scope, as determined in the reasonable discretion of the City, to be ancillary to the destination visitor attraction. ors:DocumenetAuld 3 final 9-15-08,doc FOURTH MODIFICATION TO LEASE AND DEVELOPMENT AGREEMENT THIS MODIFICATION TO LEASE AND DEVELOPMENT AGREEMENT (the "Modification") is made this v day of du't . , 2009, 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, flkla PARROT JUNGLE & GARDENS, INC., a Florida corporation, whose principal office is located at 1111 Parrot Jungle Trail, Miami, Florida 33132 ("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, due to unforeseen circumstances relating to the Subject Property and surrounding area, Lessee has requested the City to grant it a deferment of four (4) years of Minimum Annual Rent and Percentage Rent obligation contained in the Lease in order to (I) allow Lessee to retain a minimum of 400 existing full-time jobs, (2) secure the City's interest and obligation under the S25 million Department of Housing and Urban Development Section 108 loan that Miami -Dade County made to Lessee, and (3) protect the City's interest in the Community Development Block Grant ("CDBG") funding; and WHEREAS, the parties have agreed that it is in the best interest of the City to allow such deferral of aforesaid Minimum Annual Rent and Percentage Rent subject to certain conditions as hereinafter provided; and WHEREAS, the parties have agreed to modify the terms of the Lease as hereinafter set forth, 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. Pagel of 2. Article V, Section 5.1 of the Lease is hereby amended to include a new Subsection 5.1 (d), as follows: (d) Deferral of Minimum Annual Rent and Percentage Rent. Notwithstanding anything in the Lease to the contrary, Lessee is hereby granted a forty-eight (48) month deferral of Minimum Annual Rent and Percentage Rent (collectively, the "Deferred Rent') due and payable retroactive from April 1, 2009 to March 31, 2013 (the 'Deferral Period"). Lessor shall not require Lessee to pay Minimum Annual Rent in the amount of Four Hundred Thousand and No/100 Dollars ($400,000.00) annually for an aggregate amount of One Million Six Hundred Thousand and No/100 Dollars ($1,600,000.00) or any Percentage Rent during the Deferral Period. Nothing contained herein shall affect the payment of any Impositions, use tax, or any other amounts due under the Lease during the Deferral Period. (i) The payment of the Deferred Rent, inclusive of Minimum Annual Rent, Percentage Rent and taxes or other fees due to the City, is due on or before December 31, 2020. (ii) Notwithstanding the above, if Lessee pays the Department of Housing and Urban Development ("HUD") Section 108 loan on or before August 1, 2020, the Deferred Rent (for the Deferral Period) minus $800,000 and any taxes or other fees due to the City, shall convert to and become a permanent abatement. Lessee shall remain liable for any Florida sales and use tax, if due. 3. Article XXIV, Section 24.1 of the Lease is hereby amended to include a new Subsection 24.1(g), as follows: (g) In addition to the benefits listed in Subsections 24.1(a) through 24.1(f), above, Lessee agrees that all City sponsored events held at Parrot Jungle and Gardens of Watson Island during any Lease Year shall be at "at cost" for a ten (10) year period from the date of this Modification. Any such City sponsored events shall be approved by the City Manager and the City's Chief Financial Officer, and shall not be eligible for a guaranteed booking until sixty (60) days prior to the event date. 4. 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. Lessee shall remain responsible for any and all payment of state fees and shall continue to pay such state imposed fees during the Deferral Period, as such fees are due and payable to the Trustees under the Lease and this Modification. Page 2 of 3 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: Priscilla A. Thompson, CitiClerk Approved as to Form and Correctness JuIlie/O. Bru City Attorney ATTEST: Print Name: Title: "CITY" CITY OF 1 '' I, a municipal corpora By: Pedro G. Hz, City' Manager Approved as/to lnsurafice Requirements LeeArin Brehm,i(ector Risk'Managemd'nt Department "LESSEE" PARROT JUNGLE AND GARDENS OF WATSON ISLAND, INC Florida corporation �-r Be hard M. Levine, President Title: fc,b1/d Page 3 of 3 CERTIFICATE OF CORPORATE RESOLUTIONS AND CORPORATE STATUS The undersigned, Bernard Levine, es the President of Parrot Jungle and Gardens of Watson Island, Inc., a Florida corporation (the "CORPORATION") hereby certifies: 1. The Corporation is a duly formed, validly existing Corporation in good standing under the laws of the Stale of Florida and is authorized to transact business in the Slate of Florida. 2. The President of the Corporation hereby adopts the following Resolutions: RESOLVED, that the Corporation on its behalf hereby authorized the Fourth Modification to Lease and Development Agreement between the City of Miami ("City") and Corporation (the "Fourth Modification") in accordance with the terms and conditions of the Fourth Modification dated April 27, 2009; FURTHER RESOLVED, that the Corporation approves the Fourth Modification to Lease and Development Agreement between City of Miami and Corporation (the "Fourth Modification"); FURTHER RESOLVED, that the President, Bernard Levine, be and hereby is authorized 10 execute and deliver and the Secretary of the Corporation is hereby authorized to (but is not required la) affix the seal of the Corporation to and attest the same upon the documents with such modifications and additional provisions as such officer of the Corporation executing the same may deem advisable, and any and all other documents and instruments required in connection with the Fourth Modification and all supplements and amendments to the same or to any of the same as such officer of the Corporation may deem advisable, all of which documents and instruments executed and delivered as aforesaid to be and constitute the acts and obligations of the Corporation on its own behalf, the Corporation hereby ratifying and confirming the acts of its officer executing and delivering all of such documents and instruments, the respective of whether such acts were performed before or subsequent to the date of the adoption hereof, and directing the officers and employees of the Corporation to perform all of the Corporation's obligations and undertakings under each and all such documents and instruments; and FURTHER RESOLVED, that these Resolutions shall continue in full force and effect and may be relied upon by the City until receipt of written notice of any change therein. IN WITNESS Wi-HEREOE th undersigned has hereunto set his hand and nixed the Corporation's corporate seal this STATE OF FLORIDA ) SS COUNTY OF MIAMI-DALE ) y of April, 2009. and Levine, President ,. r2 The foregoing instrument was sworned to and subscribed and acknowledged before me this day of April, 2009 by Bernard Levine, as President of the Corporation. NOTARY PUBLIC, Stale of Florida at Large My Commission expires: <pp.YP .4:Lb4� Elda M. Davis fi { ? COhMhtISSIDN#DD668035 VPIAE3i SEP, 11, 2011 "rinie"� V WW,AARDNNOt'ARYcom