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HomeMy WebLinkAboutBack-Up DocumentsSIXTH MODIFICATION TO LEASE AND DEVELOPMENT AGREEMENT THIS SIXTH MODIFICATION TO LEASE AND DEVELOPMENT AGREEMENT (this "Modification") is made as of the day of , 2021 (the "Effective Date") by the CITY OF MIAMI, a municipal corporation of the State of Florida ("Lessor" or "City") and ESJ JI LEASEHOLD, LLC, a Florida limited liability company ("Lessee"). RECITALS: A. Parrot Jungle and Gardens of Watson Island, Inc., a Florida corporation flkla Parrot Jungle & Gardens, Inc., a Florida corporation ("Parrot Jungle") and the City entered into that certain Lease and Development Agreement demising to Parrot Jungle the Subject Property (as defined in the Lease). The Lease and Development Agreement is dated September 2, 1997 and has been modified by: (i) that certain Modification to Lease and Development Agreement, dated April 14, 2000, by and between Parrot Jungle and the City, (ii) that certain Modification to Lease and Development Agreement, dated August 13, 2002, by and between Parrot Jungle and the. City, (iii) that certain Third Modification to Lease and Development Agreement, dated October 29, 2008, by and between Parrot Jungle and the City, (iv) that certain Fourth Modification to Lease and Development Agreement dated, June 24, 2009, by and between Parrot Jungle and the City, (v) that certain Fifth Modification to Lease and Development Agreement dated March 6, 2019, by and between by and between the City and Lessee (collectively, the "Lease"). B. Pursuant to that certain Assignment and Assumption Agreement and Termination of Sublease, dated April 4, 2017, by and among Parrot Jungle, PJG Watson, L.L.C., a Florida limited liability company, Lessee and the City, recorded in Official Records Book 30486, Page 2539, Public Records of Miami -Dade County, Florida (the "Assignment and Assumption"): (i) Parrot Jungle assigned all of its right, title and interest in and to the Lease and the Subject Property to Lessee, (ii) Lessee assumed Parrot Jungle's obligations under the Lease (except as otherwise provided in the Assignment and Assumption) and (iii) Lessee succeeded Parrot Jungle as Lessee under the Lease, effective as of the Effective Date (as that term is defined in the Assignment and Assumption), all as more particularly set forth in the Assignment and Assumption. C. The City and Lessee have agreed to further modify the Lease to provide for a rent credit to assist with lost revenues as a result of the Covid-19 pandemic, in exchange for decreases to the breakpoints for the Hotel Annual Percentage Rent and the Percentage Rent as defined in the Lease, all subject to, and in accordance with, the terms and conditions set forth in this Modification. D. This execution of this Modification was authorized by City Commission Resolution No. 1 NOW, THEREFORE, in consideration of the mutual promises contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Lessor and Lessee hereby agree as follows: 1. Recitals; Definitions. The foregoing Recitals are true and correct and are incorporated herein by reference. All capitalized terms used in the foregoing Recitals and elsewhere in this Modification, but not defined herein, shall have the meanings ascribed to those terms in the Lease. 2. Section 5.1(b) — Percentage Rent. Section 5.1(b) of the Lease is hereby deleted and replaced with the following: (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 Eighteen Million Dollars ($18,000,000), and (ii) 6% of Gross Revenue in excess of Eighteen Million Dollars ($18,000,000). 3. Section 7 - Hotel Annual Rent. Section 7 of the Fifth Modification to Lease and Development Agreement Hotel Annual Rent is hereby amended and restated as follows: 7. Hotel Annual Rent. Commencing on the date that the Hotel opens for business to the general public and on the first (1st) day of every calendar month thereafter until the Hotel Stabilization Date, Lessee shall pay, in addition to Minimum Annual Rent and Percentage Rent (both of which are not related to the Hotel and do not include Gross Revenue generated by the Hotel), Hotel Annual Base Rent to Lessor in the amount of Two Hundred Fifty Thousand Dollars ($250,000.00) per year, payable in equal monthly installments of Twenty Thousand Eight Hundred Thirty -Three Dollars and Thirty -Four Cents ($20,833.34) ("Hotel Annual Base Rent"). Beginning on the Hotel Stabilization Date and on the first (1st) day of every calendar month thereafter, Lessee shall pay Hotel Annual Base Rent in the amount of One Million Two Hundred Twenty Thousand Dollars ($1,220,000.00) per year, payable in equal monthly installments of One Hundred One Thousand Six Hundred Sixty -Six Dollars and Sixty -Seven Cents ($101,666.67). Moreover, Lessee shall pay to Lessor, within sixty (60) days after each anniversary of the Hotel Stabilization Date, Hotel Annual Percentage Rent in the amount of Five Percent (5%) of Gross Revenue from the Hotel for the immediately preceding twelve (12) months that exceeds Twenty One Million Dollars ($21,000,000) ("Hotel Annual Percentage Rent"). For clarification, if the Gross Revenue from the Hotel does not surpass Twenty One Million Dollars ($21,000,000) in said 12 month period, Hotel Annual Percentage Rent is not owed for that time period. If the first payment of Hotel Annual Base Rent does not fail on the first day of the month, the first payment shall be prorated based on the number of days in such month. Notwithstanding anything to the contrary in this Modification or in the Lease, Gross Revenue generated by the Hotel shall not be 2 added to the amount of Gross Revenue used for calculation of Percentage Rent that Lessee is required to pay under the Lease. 4. Rent Credits. The parties acknowledge that the Covid-19 pandemic has significantly impacted Lessee's Gross Revenues from the Property. As such and in exchange for the preceding changes to the Percentage Rent and Hotel Percentage Rent breakpoints, Lessor shall provide Lessee with a credit towards Rent as defined in the Lease in the amount of Seven Hundred Fifty Thousand Dollars ($750,000.00) spread over a Three (3) year period in the amount of Two Hundred Fifty Thousand Dollars ($250,000.00) per year, beginning on the Effective Date of this Modification and finishing on the Third anniversary thereof. 5. Deferred Rent Payment. On or before the 60th day following the City of Miami City Commission approval of this Modification by Resolution, Lessee shall pay the remaining balance of Deferred Rent, as defined in Article V, Section 5.1(d) of the Lease, in the amount of Eight Hundred Thousand Dollars ($800,000), plus applicable sales/use taxes, if any. 6. Ratification. The Lease is hereby ratified and confirmed and remains in full force and effect, as modified by this Modification. In the event of any conflict between the terms of the Lease and the terms of this Modification, the terms of this Modification shall govern. 7. Counterparts. This Modification may be executed in counterparts, each of which shall constitute an original, but together one instrument. 6. Headings. All headings, titles, defined terms and similar language have been inserted only for convenience and shall not affect the meaning of any provision of this Modification. [Signatures Appear on Following Page] 3 IN WITNESS WHEREOF, the City has caused this Modification to be executed and delivered in its name and on its behalf by the City Manager of the City of Miami, Florida, and the City Clerk of the City of Miami, Florida as of the Effective Date, and Lessee has executed and delivered this Agreement, as of the Effective Date. ATTEST: CITY OF MIAMI, a municipal corporation of the State of Florida By: By: Name:Todd B. Hannon Name: Arthur Noriega V. Title: City Clerk Title: City Manager APPROVED AS TO FORM AND CORRECTNESS: By: Name: Victoria Mendez Title: City Attorney APPROVED AS TO INSURANCE REQUIREMENTS: By: Name: Ann -Marie Sharpe Title: Director of Risk Management STATE OF FLORIDA )SS COUNTY OF MIAMI-DADE BEFORE ME, an officer duly authorized by law to administer oaths and take acknowledgments, personally appeared , City Manager of CITY OF MIAMI, and acknowledged that he executed this Modification as City Manager of CITY OF MIAMI, who is personally known to me or has produced as identification. IN WITNESS WHEREOF, I have set my hand and seal in the State and County aforesaid this day of , 2021. My Commission Expires: NOTARY PUBLIC Print or Type Name 4 WITNESSES: ESJ JI LEASEHOLD, LLC, a Florida limited liability company Name: Name: By: Name: Title: STATE OF FLORIDA )SS COUNTY OF MIAMI-DADE ) BEFORE ME, an officer duly authorized by law to administer oaths and take acknowledgments, personally appeared , of ESJ JI LEASEHOLD, LLC, and acknowledged that he executed this Modification as of ESJ JI LEASEHOLD, LLC, who is personally known to me or has produced as identification. IN WITNESS WHEREOF, I have set my hand and seal in the State and County aforesaid this day of , 2021. My Commission Expires: NOTARY PUBLIC Print or Type Name 5 PARROT JUNGLE LEASE AND DEVELOPMENT AGREEMENT BETWEEN THE CITY OF MIAMI, FLORIDA AND PARROT JUNGLE AND GARDENS, INC. 7 97 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 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 1 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 30 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 Irnprovements 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 li 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 TILE 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 iII 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 Tenn 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 XLI 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 Section 45 Section 45 Section 45 Section 45 Section 45. Section 45. Section 45. ARTICLE XLVI Section 46, Section 46. .1 .2 .3 .4 .5 6 7 8 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 1 Lessee's Right of Sale 2 Right of Appraisal 114 115 115 116 116 116 117 117 117 117 118 118 118 EXHIBIT A EXHIBIT B EXHIBIT C EXHIBIT D EXHIBIT E EXHIBIT F EXHIBIT G EXHIBIT H EXHIBIT I Sketch of Watson Island Survey of Subject Property Legal Description of Subject Property Conceptual Site Plan Infrastructure Improvements Deed and Partial Modification of Restrictions Possession Date Certificate Survey of Ichimura Miami Japan Garden 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": I. 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 Terra, 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 ntinnnum 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 usesas 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 ort 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 ail 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 II 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 f. 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; i. 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). "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. I "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 lst, 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. "Proiect" 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 Parking 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 subticensee) 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 and/or marketing the Subject Property, or any of the Leasehold Improvements located thereon. The Parties acknowledge and agree that the use of such Trade Name 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 fireor 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. 15 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 riot 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 1 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 Hatchery 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 PIant 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 Corrnnission, 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 18 event, during the Lease Tenn, 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 SubLect 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 shalt 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 toundergo 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 (t5) 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 Fur 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 bond shall be reduced in amount as the Work proceeds as certified by Lessee's architect, and may be terminated at such time as the 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 shalt 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 Plans (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 PIans. 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 san4e 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 and 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 an 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 1 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 (f) In respect to the Lessee's use and occupancy of the Subject Property (and the subsurface of it) during the progress and period of construction, or by anyone acting under the Lessee, except for the negligence of the Lessor, its officers, agents, and employees, contractors or subcontractors or invitees, the Lessee covenants to indemnify, defend and hold harmless the Lessor and its agents and employees from and against all claims and demands whatsoever for loss or damage, including 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 II 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 I 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 Easements) (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 11 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 (25th) 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 (26th) month. If in the Thirty -Third (33`d) 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 (35t) 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 (S100,000). (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 dhh 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 Minimums 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 (106) 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 lawful money of the United States of America at a place the Lessor shall from time to time designate by notice to the Lessee, and in the absence of such designation at the office of the Lessor at City Hall. 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 proceedings 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 all 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 he 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 (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 1 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 1 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 IT. 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 any 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; and (b) any direct or indirect transfer of interest of Lessee's Leasehold Estate resulting in a change in the Person in Control of the Lessee, is for practical purposes a Transfer (as defined in Section 8.2 below) of the Lessee's Leasehold Estate; and (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, assigm rent 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) 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 stockand 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 Any Transfer by a stockholder of Lessee made for Estate Planning 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 Cull 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 less 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,OOO.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 attainment 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 nonexclusive 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 cornmon 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 fine, penalty or interest is added for nonpayment. If by law any Imposition is payable or may, in the case of taxes, at the option of the taxpayer be paid in installments (whether or not interest shall accrue on the unpaid balance of the Imposition), the 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 tunes 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 (1%) of the insured value. The Lessor and Lessee shall 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 shall 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. (f) 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 ITssee. 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) times 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 I2.2. 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 Iien 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 suet' 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 Iocated 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 wiil— 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 Iien, 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 Term, Lessee shall use the Subject Property for the uses permitted by this Lease, and develop, and continuously operate and manage, the Leasehold Improvements so as to provide a family 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 1 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 (tent) 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 hall 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, al! 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 come 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. 73 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 he 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 American Arbitration Association, who shall appoint such third Member within Ten (10) days of the request. f) A hearing shall be commenced within Thirty (30) days following the selection of the Arbitration Panel. 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 (1) of all expenses of the third Member of the Arbitration Panel, The decision of the Arbitration Panel will be final and note -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 X'V'III 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 51 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 ar disfigurement involved with repairs, renovations, upgrading or new construction, or to the construction of lakes, canals and other similar type of waterways or deposit of clean fill at the Subject Property or the removal of till 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 ar 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 CIean 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 is 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 Iiens filed against the Subject Property as a result of any Inspection performed by or on behalf of the Lessee, pursuant to this Article; (ii) immediately repair and restore the Subject Property to its condition existing immediately prior to the conduct of Lessee's Inspections 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 Term. 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 rernediation, 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 I 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 58 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 Tenn. 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 Indemzzity 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 indemnifynd 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, employees 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 Sectioa 24.1. Additional Benefits. Lessee hereby agrees to provide each Lease Year during the Lease Terns 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 XVII. In any event, the Lessor shall be entitled to receive its reversionary interest in the Subject Property and Leasehold improvements and Lessor's present value of rent due under the terms of the Lease Agreement and for the Lessee's estate in the Subject Property and the Leasehold Improvements which a buyer willing but not obligated to buy, would pay therefore in an arms 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 domain, or shall be conveyed by the City and Lessee acting jointly to avoid proceedings of such taking, and Lessee shall be of the good 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 rnade 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 shalt 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 45.8 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 not 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 XVIL 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 not 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, heredita;nents, 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 [02 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 title 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. f . 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 Term; 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 (iii) the Subtenant is paying such rentals under its Sublease as is comparable with rentals payable by other Subtenants in the Subject Property for comparable 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, 3`a 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. lIl Section 41,3. 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 1 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 Iabor 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 XLILI 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 Detay(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 litnited 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 45.1. 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 arty 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. 117 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) 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 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 (I0) 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 anti on i I behalf' by the City Manager of the City of Miami, Florida the City } Clerk -of the City 4f.'Miar ,Florida, and the Lessee has signed as of the date and year Li first' above wnttUti. LESSOR: CITY OF I, a mu cipal corporation of the S to of F rids By: Walter Foetnan City Clerk Edward Marqu City Manager APPROVED AS TO INSURANCE APPROVED AS TO FORM AND REQUIREMENTS: Frank Rollason, Chief Division of Risk Management ATTEST: LESSEE: PARROT JUNGLE & GARDEN. , INC., a Florida Corporation By: Mry . Levine Be Secretary President e 120 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 Restrictions EXHIBIT G Possession Date Certificate EXHIBIT II Survey of lchimura Miami Japan Garden EXHBIT I Minority and Women Business Affairs and Procurement Program Ordinance & First Source Hiring Agreement { 1 JNGLE TE EATER 'ILDLW SfiOVVCASE VERED WALKWAYS Weather pp-a„pi cted access to ma, facil.ities`s%i t!r resting areas/ views to a ibi t. I�fLir 1 ; ��rl '.AMI ,JPANES GARDEN SPECIAL E ENT PARKING a"OO CABS: • iNLAIN AV: L • . Valet/baihdieg; 0-64, .: Pcdestriaiiliiike Access B tN UET/SPECIA'L INVENT. FACILITY . . • Hh►iquei ▪ Majqgniriiiicefficketing • Food..Servec� • R ailk `Mniinistrr i1 oat' • Gucst Servicirs ttk, 4. 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 857.30 FEET; THENCE SOUTH 60°52'45" WEST, FOR 223.24 FEET TO ITS 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, 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°00100" 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; B THENCE ALONG SAID CURVE HAVING FOR ITS ELEMENTS A RADIUS OF 1090.64 FEET, A CENTRAL ANGLE OF 6°47'I8" FOR AN 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 1441.25 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: (I) 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 I31.22 FEET; (4) THENCE SOUTH 72°18'34" EAST FOR 87.21 FEET; (5) THENCE SOUTFI 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 1; 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) EXHIBIT F. Deed and Partial Modific ,,,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 Sy 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 usn 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'el 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 HOARD 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 years 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 y five and 00-/100 deIIarc ($13,1-'_--4 + 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. 1,48 0.64 percent of quarterly annual gross ticket sales at Parrot Jungle & Gardens; b. 0.45 0.23 percent of quarterly annual gross banquet/restaurant food revenues at Parrot Jungle & Gardens; c. 4,4 0.30 ofa:rtcrly 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. 194,0 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 taut any notice of any kind, terminate, cease to exist, and be null and void ab initio 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 Page 4 of 6 Partial Modification of Restrictions Deed No. 19447 BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND OF THE STATE OF FLORIDA By: (SEAL) Percy W. Mallison, Jr., Director, Division of State Lands, Department of . Environmental Protection ATTEST: CITY OF MIAMI, A MUNICIPAL CORPORATION OF THE STATE OF FLORIDA By: By; Waiter 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. Mallison, 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 E'und of the State of Florida. Re is personally known to me. Notary Public; State o 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 Deeci No. 19447 EXHIBIT A COMMENCE AT A POINT KNOWN AS P. T. STATION 25+50 OF THE OFFICIAL MAR OF LOCATION AND. SDRVEY OF A PORTToN OF SECTION 8 is 6, DESIGNATED i.. PART OE' STATE ROAD A-1-A IN DADE COUNTY, FLORIDA, AS RECORDED IN PLAT BOOK 54, AT WAGE 71, OF THE PUBLIC RECQRDS OF DADE COUNTY, FLORIDA, SAID POINT !BEING TEE POINT OP TANGENCY OF THE CENTER LXNE OF THE MOST _NORTHERLY CURVE OF GENERAL DOUGLAS MACARTHUR CAUSEWAY, RUNNING SOUTHEAST'WARDLY PROM THE NORTHWESTERLY CORNER OF WATSON ISLAND AND HAVING A RADIUS OF 1432.69 FEET AND A CENTRAL ANGLE OF 62°00'00"; THENCE RUN NORTE 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 OP BSt3INNING OF THE PARCEL TO BE DESCRIBED. (SAID POINT BEING ALSO THE POINT OF BEGINNING OF LEASE AREA 7. MIAMI YACHT CLUB); • THENCE SOUTH 09°52'53" EAST ALONG THE SOUTHWESTSRLY LINE OF SAID LEASE AREA 1 AND ITS' ,BOUT, IE STERLY EXTENSION, FOR 857,30 FEET; THENCE SOUTF! 60°52'45" WEST, FOR 233.24 FLET TO ITS INTERSECTION WITH A LINE PARALLEL AND 100 FEET NORTHEASTERLY —OP 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 (A) THENCE ALONG A TANGENT/AL 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 OP SAID MACARTHUR CAUSEWAY AND A CIRCULAR CURVE CONCAVE TO THE SOUTHWEST, SAID POINT BEARS SOUTH 41°51'52" WEST PROM ITS CENTER; (B) THENCE ALONG SAID CURVE HAVING FOR ITS ELEMENTS A RADIUS OF 1090.64 FEET, A CENTRAL ANGLE OF 06°47.'10" FOR AV 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 1441.25 FEET, A CENTRAL ANGLEOF 20027'49° FOR AN ARC DISTANCE OF 514.75 FEET! (D) THENCE NORTH 34°54'164 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 RIGHT COURSES; (1) SOUTH 98°21'37" EAST FOR 63.85 FEET; (2) THENCE SOUTH 86°09'34" EAST FOR 68.47 FEET; (3) THENCE SOUTH 02°33'21" EAST FOR 1.31.22 FEET' (4) THENCE SOUTH 72018'34" EAST FOR 87.21 PEET; (5) THENCE SOUTH 68°29'02" EAST FOR 102.34 FEET; (6) THENCE SOUTH 67°53'24K EAST,POR 02.52 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 SCUM 08°07'15" EAST ALONG SAID LINE FOR 288.12 PEST TO THE POINT OP BEGINNINGS AND THERE TERMINATING. CONTAINING 18.6134 ACRES MORE OR LESS (/NCT,UDES 2.5025 ACRES MORE LESS OF SUBMERGED LANDS) . Page 6 of F Partial. Modification of Restrictions 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, 1) 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 between Lessor and Lessee, Subject Property: As legally described in Exhibit C attached to depicted in that survey identified as Exhibit B attached to the Lease. , 1997 the Lease and 2) Confirmation of Possession 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 Clerk Print Name STATE OF FLORIDA ). ) COUNTY OF DADE ) CITY OF MIAMI, a municipal corporation of the State of Florida• By: City Manager Print Narne 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. C-1 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 1097, 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. R 711'S KM HOT A D.1tD SURItrY UF'US.tU LtUAL ULSLH I H I I Ulv run JAPA\ESE GAI9I\S SKETCH TO ACCOMPANY LEGAL DESCRIPTION br rf•AY 1tt #t mare .?`4 awa.arr qq. t'K GRAF It SCALE a sD 14O ferye r�appt xf Ldi I HEREBY CEAT]FY: THAT THE ATTACHED ECEICN TO ACCOIWANT LEGAL DESCRIPTION MEETS THE AIHIHUM TECHNICAL STANDARDS SET BY THE F1pRIDA STATE WARD OF SURYEtORS AND HAPPENS PURSUANT TO CHAPTER 172,027, FLORIDA STAlUTE9 AK? CHAPTER 61617 OF THE FLORIDA ADaliti DAME CODE. STG1E0: r-S Ii FEF& NDO 2. 6ATELL PLS C£RTIF1C11E H0, 2021 STATE OF FLOdIDA ITDT YALW DMLESS SEALED KITH S13ivEIOR'S EnROSSED SEAL JAPANESE SLIMS 1EDAL DESCRIPTION. EMINENCE AT A POINT ACV AS PT: STA. 5•5D OF SHE OFFICIAL NAP CF LOCATION AI@ eS1WYEY OF A PORTION OF S*cn 57O6, DESIGNATED 0,5 A PART OF STATE RO[O 11-1-4 111 DADE'CDLIT1 FLGR14L A9 FEGORSED MAP DOOR 56 AT PIGS 7t OF THE PLELLIC 1E ORD5 OF um count FLORIDA. SAID POINT 6EING THE POINT OF TANIEHEy OF TOE Man LINE OF THE HOST ORT11ERAT CRRYE OF SAL DOOD;AS MACARRAS1 CA SE**T *UROIM6 SODT1EASTHARDLY FROM TI1E NoultuOESTEPLY CORNFA OF FAISON 1511M0 ARD WINS A HAOIUS OF 1432.R FEET AATi A CENTRAL IIREZE OF 62'1UO'IA'- THENCE IRdITlI 6C52'47 EAST ALORG T11C NORTHEAo1EA1.y pwouI00 ADISTANCE *F tfiS09I FEET. TRUCE RUN ROAMTLIBE OF THE OWE NMo*0riE0 s EAST A NUANCE OF 221.5S rat 2E22 FEET TO THE ACTUAL Pp1Hior DEOINNIIz woe EAST A DISTANCE OF THENCE ALONG AN Ea1St1111 fp10E L"f1iC FOR T4i0 FOLLDk1116 12 COURSES: f:- Thence SI3•96'1i.0'E a /flatmate of 7E60 feet; �- Thence SSo•IIIF 39. VC a 0FAlian of 10E-03 feet; 3-- Treats 1114'1Y40 a trireme et 75.SS feet: 4,- Matte N34'2510.2'E a elstaaea of 77.55 feet: 5.- /knnee Mr 42'31.3'E a DFstaaet of 51,02 feet: 6.- Mince l00 11'p3.3'Y o alstanea of 73. 16 fes1; 7,- Thant* S79`45'365•a a'41staaea Sr 39.46 feet. IL- Manta Ia1'24.315•1I a alstaooe of 16.62 feet: 9.- Thant, 1176'22' AFL 1'.M s alstaaca of 541.70 feel: 10.- Theate $6t'13' 14.0'Y a distance of 55.17 fai: t1.- Them 51eO4'36.24 ..distance a1 51L07 feet. 12.- Thenta 5613•44•400•H a 41Sttoet of 68.31 feet;' la tha POINT CF DEitHHIRO a.0 thari tvnlea11a9. Coa1ataln9 In all _91 acres, sort of flss. FER ANDO Z. GATELL P. L. S. , INC. PROFESSIONAL SURVEYORS AND MAPPERS 1TOO S.N. 57TH AVENUE SUITE NO. 219 MIAMI. FLORIDA, 33155 EXHIBIT II — SURVEY OF ICHIMI1RA MIAMI JAPAN GARDEN oah 01/12/95 Scat. 1•-• 100' § 18-58 jest to the provisions of.law. (Ord. No. 9572, § i, 2-10-83) Secs. 1.8-59,--48-G6. Reserved. FINANCE ARTICLE V.J'URITYANU WOM N , BUSINESS WARS RSAND PROCUREMENT PROGRAM' • • Sec. 718-67. Short•title. . 'pins s.rt iele'sall he knovm'and maybe cited a. `he Minorjtyand Women Business Affairs and Procurement Pragrein Ordinance; of the City 'of 1Sfiami," ' (Ord. Na." 1OO62, § 1.,12-19.85) Sec. 8-88. Definitions. For the purpose of,thi.s article, .the following ', terms, phrases, words, aril their derivations shall :have thee following meanings: • . Afjirniative'action, plait"siiall.uiciudo the' pro - looted annual goals and the timetables which will be used to employ anator',,p~raoure�vitli women sand nthiozities szoridiscrimiaaatioii policy st ttenient and any ether actions, waleh will be used to ensure equity in employment and the utilization of -Minority And femal—e-Dined businesses Business enterprise atns' nycorporation, part- .- nership, individual, soiepropriatoxsiiip, joint's k • company, joint venture,, profossioual-association •or any other legal entitythat is properly licensed to 'do business with the city and/or: county and/or the 'state. • 'Contract. Means agreements for the procure- , merit of goods, services, or construction of facili- ties for the city. •Editor's notedid. I' o..10062, `¢ 8, adopted Lac. 19, 1985, repealed Ord. No: 9775, §§ 1-r8, edopted.J nL 19, 184, u,dincid as § 1842, concerning' the minority procuremeni program. At the discretion of the editor, §§ 1.--7 of Ord. No, 10062 have been codified as art. IV:5, §§.18-67-1B-74. City coda eross reference --Lease deity -owned property to require minority procurement clause, § 2.383. Cot wty code cross reference —Procedure to increase participation of Block vendors of commodities and services in county contracts, § 2-8.2, EXHIBIT Z 1 1 Facilities means all totally or partially public financed prgjects including, but without: li.mit� tion, unified developmentprcjects, municipal pul lla works. and municipal improvements to• tlr extent they. are tenanted With city rnone,y, l city property, or rcgufre city servSees.. God meads the 'percentages of the' annual' doliArvolumuofprocuroment.exsesadittrres deter- mined by this' article to be offered for minority 1 and women business pirtiapatiorl. • : 'Goods and services iticlude;.wifhout Jsrnitation, I Public Works,' improvements,-- facilities, profes- ,sional services;•comniorlities,'suprrlies, matanaIs 1 acid equipment. Joint venture shall mean an association of per- sons or legal entities with the intent to engage in and carry out a,singIo bbusinesa enterprise for profit. . ' - Minority attd uro ith owrceei business eta'terpnse means n business,_fsiprise in :tivhiah •at least -orte (61):percent of ixid"e femilo ' is: • fitly owned by Blacks, Hispanic or. o nen w o e nirnnage= naent and daily14slno4oporaition's are.controlled - by one (Z) or,more 1'ilacka, Hispanics ar.; woxneu. Procr4nrrpeiit ezpendztures shall_moan a pur- chase; payment, tiistritlution;'loan or'advance for the purpose; of ecgi lri ig or:provid g'gadds•'end •service. Set•ccsic%• is floe iexnii vsrlaicli` will he used to designate a given purchase Or coiitz'at. or/a par-- tzon of a given purchase. or' contract .award for Black, Hispanic and/or women -owned; businesses. Set -asides may only be .utilized whore i>; is.deter- alined, prior to the invitation ta•bid or request for proposals, that there are a auilicient number.of •-certified I,BIac'Hispariicand/er • 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. Na, 10062, § 2, 12-19-85; Ord. No. 10538, § 1, 1-12-89; Ord, No. 11272, § 2, 6- . -g .l § 1S-69 &HAAG CODE Sec: 18-69. Established; component;.. (a) A minority and women business affairs and • procurement program for the city is -hereby estab- • I1ehed. The city , mainagefs • office ,shall be •hellcf Ai:mountable for the full and I'orcefial implementa. Von v£•tha is uoriFy tit . womnen•business .affairs • and.procuremetit prograta by:providing approp-i-. • ate recora mendatiorxs=for..ac iokb #he•citp cord- ' • (b)—p`or-the purpose 'Q£.a eisting the city man- ager in the implementation of gaid,program.; a minorityand woinerthuai less emirsand.piocure- ' Merit eem itt ee.is hereby esttilslished, conusi ing Ad: atn.. appropriate .rgillibes --of,1511qilbc.114 tp .10 appointed by the city manager, witl}i.fuilrepresep.- tataorR of Hispanics, Black and • women to be responsible. for monitoring the inuplementatien of the program • and. rimking recwi mendations' for achieving the rc quirementsof=this •' title. 'be Committee shall he•'responsible f"dr .generating •yearly progress ::reports to the •city:;Corrimission •and.the commuuity,at'Iarge., , . • § 18.73 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. 16-71. AppIica1 flUy;• • Except.' where federal'®eatate; .a r;.regala-• • tons mandate lo' ilae-taip,`•ttiL.:prrovisioas of ' this article will•be .appli b"Ie.to all; ity;;pre4iid, 'bid, contract or other axneementanOtztiat.ed by the city. (Orel. No: 10062, § 6,' 12-19;85) • • 1Seo,•18-72,:Objectisres;.usear•set-tisides..,-•• (a), The'objective of the Ciiyis'to achieve a.gr�ai •of awarding a rninimumof.y'-ona (51) Percent of the total annual dollar volume of allprocuremeut expenditures :to., BIacks, flspanics tind'Nwoinen- owned small bgsines '> terpr sea ,rho !.be _apppr tionedas•failew .ae n r sve tn,���;�ierceni'�ay�3iae1�, $ev rjt en'(17) .p2 C2 t. A• $ l' �iI�,a,-,1 L'yen- -teen (17) percent :to !waLu"en;'sui'oal gall be applied to: all city bids';.an'd..:caritracts .: (b) To further .the goalof incr axing .the .total anneal volume ()fall pr'octirethent expenditures to minority and.wornen-owned business enterprises, titre ' duties; authorize and .implement ..-the....... authvrihy.for a minority rind -women, -owned busi- (c) The .city Manager shall; ritilii'sng o f itig resources, create an office ot'>siitiority end women • business affairs arnd.pro'ciiremsht; antribali pro- • vide the appropriate staff and resources neces- sary for the performance of all such aiministra- administ'rrative ,guidelines _and ..procedures re- quired; and ensure compliance with' the functions required to promote 'the achievement of the pro- -gram's goals and .objectives of increasing the ,'volume of city procuremeat,and 'contracts .with Black, Hispanic and women -owned busitiesees,5) (Ord. No. 10062, § 3, 12-19-8 Cross ret'eL'enee -Department ofgan©rat aeryices sdmia- titration to i i lain o ce of minority and woe lnsiness affairs and procurement, §`2-253. . Sea. 18.70. Duration of program. The minority and women bnsiness.'airs 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 Stipp. No. 5 L 1218 ness enterprise procurement/set aside hereby established for use bythe city niatitager as he or she may doom advisable.or n;eces'sary-iu:increase • the participation of Blac19,11.ispantc,ard women - owned businesses in'city,pracurement coufxaets. .- (Ord. No. 10062, § l24 .85,_Ord: No. 10538,'§ • 2, 1-12-89) Sec. 18-73. Regriireel statements for solicita- tions 'notices; required state,, merits on contracts_and awards. (A) It shall be mandatory.for all city salicite-.. •tions or helices• inviticrg'.bitts;.trfbp tials;'quotes, letters of interest and/or qualifications, to contain the approved requirements for i471WBE:participa- tion and to have these requirements incorporated by reference, along with the " inclusion of the appropriate compliance farms, 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 Supp. No. 51 1218.1 § 18.73 F'ENAUCE'. 1 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- terlprise.(rem consideration and participation in future city contracts, on the basis of hav- ing submitted deliberate and willful, false or misleading information es to his, her or its status as' a Black, Hispanic and/or women - owned business enterprise and/or the quan- tity and/or type ofminority and women -owned business participation. (3)` A requirement that each successful bidder or offeror agree io'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 suclr-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'maritalstatus. (4) A statement of the extent to which the busi- neas 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 bust- ness and/or women -owned enterprise. (4) ; A requirement that each bidder, proposer, or vendor submit alongwith-the bidor.proposal........ an affirmative action plan (AP). Any Signif- icant equity participants, joint venture par- ticipants, subcontractors, suppliers or other Stipp. 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 M/WBE affairs' and shall demonstrate a good faith .effort to ensure equal employ - merit opportunities for Blacks, Hispanics and women on each purchase or contract. Vendors and contractors shall document these efforts fully and shall provide re- ports as may be required by the city. (b) Vendors and contractors shall permit ac- cess to their books, records and accounts by the office of M/WBE affairs or her designee for the purpose of investigation to ascertain compliance with the forego- ing requirements. (c) In the event of vendors' 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, 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 irk all bid and pro- posal documents. (Ord. No. 10062, § 5, 12-19-85) 1219 §'I8.75 MIAMI CODE § I8-78 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 paeans any corporation, partnership, individual, sole proprietorship, joint stock company, joint .venture, professional ,association or anpotherlegal entity, (2) Construction contract meails.agreements for the erection, alteration, demolition, or repair of any public building or any other Kind of • public work or improvement. (8) lifirwrily and women -owned business enterprise means a business enterprise in which at least fifty one.(61) loomed of said enterprise is owned by Blacks, Hispanics or women whose man- agement and daily business operations aro 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 nonamendatary Ord. t'to, 14332, adopted Oct. 22,1887, have been codified as li 18.76 at the editor's discretion. Section 6 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 'tristi- tute payment procedures which will insure, in those instances in which the MJWBE bid or con- tract requirements result in contracts, subcontracts or joint ventures for MfVTDE , that compensation provided pursuant thereto shall be in the form of Supp, No. 32 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 MJWBE, under the terms and conditions of the city contract or pro- curement award document, compensation shall be withheld until such time ass the dispute is re- solved in accordance with the procedures set forth ' in this chapter for resolving such disputes. All administrative directors shall amend their e-xzst g policies sxld`proced.ures or to create such new ones as may be required to insure and report on compliance with all aspects of this article. (Ord. No.10588, § 4, 1-12-89) Sec. 18-77. Designation of director as respon- • sible official forbid requirements, guidelines, etc. v. Thedirector of the office of minority/woinera business affairs is designated as the official re- sponsible for establishing MIWBE bid, and con- tract/award requirements, creating and implement- ing compliance guidelines, monitoring compliance, resolving disputes, and reporting an all of the above to the city manager. (Ord. No. 10538, § 6, 1-12-89) ARTICLE V. SALE OF REALTY'' Sec, 18.78. Methods and procedures for eahe'e 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 proporty, 1 3(0; contracts for sales or lease of real property, § 1 29•A(d), 29-B. 1220 § 18-10 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 aball be provided to the city corn- - mission by a threeeraelnber.- nominating panel, consisting. of one (1) representative of each -of the fellowing'the 'cultural Exec= ratiyes ceorincil, Inc.; the South Florida chapter ►f the A ericsun Iin titu'te of Archi- tects; and the Dade County Council of ,Arts and Bciencea. (2) Per;9ons: -wishing. tc nominate others for membership on the. committee, or persons seel gto be nominated themselves as emu- mittWe inembers,'Yliay furnish their names directly to the nozm natingpanel, as well as to members of the city commission, who will forward said names to the nominating panel for a review sand analysis ofthe qualif"sca• tiaras: mf 4laose. personas. (3) Anyone whose name's received by the norn- • inatx i ^ gaffia1-01st agree to serve, if ap- p9inMd,.befoie.he or she is nemiaated by the panel...: (4) • The flve'(5) iiaitial committee Members shall be'selected from e list of ten.(10) nob inees provided by:the 'norninating_panel. If the city commission appoints less than five (5) conaniittee' anemubers from such list, the %p'araeI wviltaphraiit•:twa (2) additional names .... for eeoh 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 -}lave been filled. (5) Future -selections to fall vacancies created by expiring terms. shall be made by the city cemn fission from a list of nanaes 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 1: Three (3) members serving initial five-year terms. 6 18-11 Group IL• Two (2) Members serving initial three-year terms. (7) Upon the expiration of these initial terms, sur,'ceeding appointments shall be arcade for terms of five (5) yew. (8)' The committee ahaU meet .at. the,. direction • of the city manager, at a time and place • designated by the manager, and. sliall act hn advisory capacity. All such meetingE are be'open to the Public. '(Csde 1967, § 18-5.4; Ord. No. 8769, § 1, 2-28.78) Oaiunty cud° referenee—Metropal.ltaa Dada County Council of Arta and Selence 6 2-281 et seq. Sec. 18,11. - +'iast•souroe hiring agreements. (a) This commission approves implementation of the farsl-source hiring agreement policy and re- quires as a condition precedent to the execution of service contracts for facilities, services; and/or re- ceipt bfgrants and loans, for projects of a nature thatereate new.Jobs, the successful negotiation of irstiaovirce hiring agreements between.the orga- nizaonorindividual.receivingsaid contract and. the authort.zed representative unless such an agreement is .found infeasible by the` city man- ager Land such finding epprdved by the city came mission at a public hearing: (b) - For the purpose of this section, the following- tersns, phrases, words and their derivations shall have the following meanings: (1) .. Seriiicc contracts means contracts for the • , proeurernent of services by the city which •,:••• include professional services. (2) Facilities theme ail publicly financed projecte, including but without limitation, 'unified development projecte,;. rr unicipal public works, and municipal 'im'pi^pvernents to the extent .they are financed through public money services or the use of publicly owned property. (8) Services includes, without limitation,.p.ublic._ _ works improvements, facilities, professional— • " services, commodities, supplies, materials and equipment. (4). Grants and loansmeans, without limita- tion, urban development action grants (UD- Supp. No. 48 1195 (I-6) r ,L4341•cc>nE -ABC), .:coneroic tleveloprnent• ency con- struction loans, loans .from 2 is:aai Capital -Development, Tnrorpors eed,:uudell federal .land state igram'ts . altered by ih e City. (�) Authorized ,?representaltive One ihe. • 70de .1ndustry Oaapaeil •aaryf-gc► 4 Merida/ . uth i 0rnp10 i 't uund Wig . ions ; or'i is uoceasar oe re«p. - 446 of *d .I a d Win• VIraent.afs. ` . • , • • :(c) 'lie presen'ta ire fl •tom to sou i �arit. • (d} `he•p im rybeneSelariesortfigeirgt-source biringreementshalllie participantsalthetcity :trail'tjg id inp'Idy bnt: , aarotherys- idents ci•tite •pity '.,. • • - (Ort:. No. 10182, §§ 1-14, 9-I2;95) . Sea,, •18. 2.: hialgctpnd nances rovietvcosn- . a.ittee, - (a)' -lisiament 'There is bes`eythed it boiled tote known as:the '"EC itzbtl iami indget 'clad•PhianeesLevieWs ki #tee'ri'or: iae;pv ►se f(51 providing-zaai =iiidepeaildent :assessment •con- ce xigthe oity's litidget;rand #sriane0-end marling .recornmendatiorts'to the: cityymanager and the city commission on all issues related to the city's ;midget, cost-effectiveness, .productivity and effi- ciency. (b) Membership. Thp budget :aud finances re Flew, committee Shall eonsist of five(6) members. to be appointed by the -city commission., 'Co) Officers; -males,of procedure.'The cvtnmittee -shall :select a 'chairperson from among its mem- bers. vice -chairperson may also 'be selected by the.committee froth among its members to serve as cha rpersan at any .meting inthe .absence of .the.thairpersora. The coxnurittee:may establish its own.les of procedure for -thee conduct.of business. (d) Meetings, .Meetings shall be scheduled by .the corranittee at least once each month and if there is no btisiness pending before the committee, the meeting may be dispensed with. Special meet- ings may be called by the chairperson or by any three (a) members of the committee upon reason- able notice being given to all committee -mem- bers. § 18-22 CO Vacancies. Vacancaes•1nthe ^membership of the budget and finances review-coitu:aiittee shall be filled by the city commission and shall be only for the unexpired term of the member affected. {t)Cily liaison. The director of it mace or his/her designee shall serve,asthe city ac ,,in:stration'a liaison with the budget and:Cutances.reriew cortt. =Mee:" • - • •(g) Suap071, shallbethedtt ° er ij t-xa.n. agar to provide suppo o°tire coazl- rcittee, which shell fnclu4e the services •oFan an- lividaral to keep minutes of nee o , 'maintain taorrespoadcno, post ineetirsghotioes;451e reports •and•perfox u all other. necessary. vapport rune. miens. (Ord. No; j 18t}, § 1 , ,8.24.94) Sees. 18-18-18.20. served, ARTICLE u 130NDS* See. 18.21. Registration permitted!, All bonds of the city shall be i:egistrable as to principal alone and also as to both' principal .and interest, in accordance witlx the terns and dcndi- Lions pro vided in this article for endorsement upon such bonds, and the director of ,pinnace is hereby appointed and designated bond.registrar for that purpose. No charge shall be image to any bond- holder for the privilege of registration herein granted. (Code 1967, § 16-6) Sec. 18.22. Form of registration. There shall be printed upon the reverse of bonds. provided for in the precedingsectian the following provisions for registration: .` This bond may be registered as to principal in the Bond Register of the City Of l !'iarrii Uy the Director of li inanee of -said City -as Bond. Regis - tzar 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 bands, § 32• Supp. No. 48 1196 (r-7) J-96-547 7/25/96 RESOLUTION NO. 9 6- 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 OP 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. 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 waI erfront 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 .:su.bsequently approved by a majority of voters of the City at a referendum held November 7, 1995; and ATTACHMENT(S) CONTAINED II CITY COMMISSION MEETLtrc OF JIJL. z 5 Ma Resolution 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 /ease; 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 natter, 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 soul compensation has be ri agreed as: $26,250 (= 7.5%1 of $350,000, the minimum rent from said appraisal) or the cumulative total of the fallowing, whichever is greater 0.53% (= 7.5% of 7%) of gross revenues from ticket sales (admissions), O.23% (= 7.5W of 3%) of 'gross - 2 98 - 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 authorizedl/ 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 (7.51) of certain revenues as set forth in said agreement. 1/ 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 25th day of . July PREPARED AND APPROVED BY: LINDA KELLY N ASSISTANT CITY ATTO APPROVED AS TO FORM AND CORRECTNESS: W1001: BSS - 4 - , 1996. 96- 55 -a4-206i i,2;58 305 858 1610 P,03 CITYCLERKS OFFICE mot. � 1 MODIFICATION TO LEASE AND DEVELOPMENT AGREEMENT THIS MODIFICATION TO LEASE AND DEVELOPMENT AGREEMENT (the "Modification") is made as of the tywl day of 44 i , 2000, between the CITY OF M AMI, 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 Mir, havieg its offices at 3500 Pan American Drive, M1ami, 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 33134 ("Lessee"), RECITALS WHEREAS, Lessor and Lessee are parties to that certain Lease and Development Agreement, dated as September 2, 1%17 (the "Lease); and SAS, 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 coesideration, 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 ors if Lilly set forth herein. Unless otherwise indicated, 1 capitalized terms used in this Modification ehall have the respective meanings given them h the Lease. 2, The Lease is modified in the following respects: (a) The definition of "Acceptable Operator" is hereby amended to state as follows: "Acre table .p2" (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 ail of Lessee's obligations under this Lease in a manner consonant with the quality, reputation and econornio viability of the Project, inoludin, (without limitation) the obligation of Rent theretofore payable by Lessee under this Leese and possessing a minimum of Five (5) years experience in the suceessful operation and menagernent of a destination visitor attraction, which is approved by the City Commission, which approval shall not be unreasonably withheld or delayed, OCT-04-2001 12:59 CITY 1CLERKS OFFICE J 305 6S8 i610 P.04 (b) The definition of"Gross Revenue" is hereby amended to add the following at the end oft the sentence: (c) For purposes of this definition, the term Subtenant small 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 wader this Lease. Article VI is hereby amended as follows: (1) Nothing contained in 6.1,(a) shall be deemed to prohibit a Leasehold Mortgage (or its designee) then 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. I.(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 6.1.(b)(iv) is hereby amended to change the first reference to the word "and." in the first sentence to the word eole (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 Msna., er 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 euch termination, execute and deliver a new lease of the Leased Property to Leasehold Mortgagee for the reminder of the term of this Lease with the same coveraarrts, 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 tights granted Leasehold Mortgagee herein, The City's executicn arid delivery of such neve lease shall be made without representation or warranty of any kind or nature whatsoever, either express or implied, including without limitation, any representation or warranty regarding title to the Subject Property or any Improvements or the priority of such 2 O—04-2001 13 ; 00 CITY CLERKS OFFICE r I 305 858 1510 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 Lease and terminating on the date of such new lease), The City's delivery of any Innprovetnents 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" its their then current condition. Upon execution and delivery of such new lease, Leasehold Mortgagee shell be responsible for taking ouch action as may be necessary to remove Lessee named herein from the project, The City ogees 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 hawing 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 tharr-by Lessee. The Leasehold Mortgagee shall pay all expenses, including reasonable attorneys' fee: 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 new lease, the hoIder of the most senior Leasehold Mortgage, unless the holder of a more junior Leasehold lvtortgage, 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 Mortgage, 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 pricy 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)() shall elect to enter into a new lease but shall. l fail to do so or shall frail 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-04-2001 1 : 00 CITY CLERKS OFFICE 7,Ei5 e5a^ 1610 F. CE Section shall be prior to any mortgage or other lien, charge or encumbrance on the fee of the Subject Property and shall have the same relative priority in time and in right as this Lease and shall have the benefit of all of thhe right, title, powers and privileges of Lessee hereunder in and to the Project. During the Term of the Lease, the City shall not grant any mortgage cr other 'lien On its interest in the Subject Property unless such mortgage or lien, by its term, is subordir ate to this Lease, and any new lease ex tered into pursuant to this Sermon. (iv) Section 6,10) is hereby amended to add the following subsection (xi): ()d) For puaToses of this Article the term 44Ac eptable Operator" meads an entity possessing the business experience, good reputation, resources attd adequate personnel necessary for the proper performance of all of Lossee'.s obligations under this Lease in a mariner consonant withthe quality, reputation and economic viability of the Project and possessing a mi.rtimurn of Five (5) years expe.rience in the successful operation and management of a destination visitor attraction, which is approved by the City Commission which approval shall not be unrea&onably withheld or delayed. (d) Article VIII is hereby amended as follows: (i) Section S.3.(a) is hereby amended 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 12 of this Lease, or (ii) any national bank organized under the laws of the United States or any commercial bank, or any savings and loan association, savings bank, trust company or insurance company organized under the laws of tho United States or' any state of the United Sates, or any pension, retirement or welfare trust or Auld supervised by a governmental authority of arty state or the United States or any such trust or fund administered by art entity which is supervised by a governmental authority, or any wall 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, with an Acceptable Operator as defused in Section 6.1, for the continued operation of the Project during the Teen. 4 OC`C-04-2001 13 : 00 CITY CLERKS OFFICE 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 Thmr, 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 Terris with the same force and effect as if said option hadbeenduly and timely exercised by Lessee. (f) Notwithstanding anything in the Lease to the contrary, it is agreed that the Leasehold Improvements described in the Lease as Phase . I and 'hase 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 thari thirty (30) months from the Possession Date, Lessee hereby agrees to submit the Development Plans, the Construction Documents and a schedule describing the timetable for construction and completion of all Leasehold Improvements riot 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, and.sliall guaranty the payment and performance 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 fo] lows: "the non-exclusive right and easement,....'° (i) 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 andfor 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 et 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 DCT=04-2001 13;0i CITY CLERkS OFFICE 305 858 1610 P.08 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 ails 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 retrnain in till' force a:ad effect IN WITNESS WOOF, Lessor has causer! 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 Lesser as signed as of the date herein first above written, LESSOR: CITY ; . MIAMJ, a municipal corporation of the a By: hT:;! nald H. Warshaw City Manager APPRO'V. Co 6 ttorney RIVI AND OCT=-04-2O 1 13: ®1 Ai t'EST: CIT CLERKS OFFICE $ is 160 Ori4,A. V 4; SEAL n PARROT JUNGLE & G. EN$ OF ,�, W+ :A ' WATSON ISLAt D, INC., a Florida � 0 " - . , . • " 41k corporation, a PARROT JUNGLE & �'rrsoe+,cti �inn��v0.., GARDEN TC,, aFlorida corporation it By: ]Urine Bernard M. Levine Seer aty President 305 858 1510 P,09 COCT'-04-2001 13 ; 01 a 305 858 1610 CITY CLERKS OFF I CE P.10 RS R' i'Y1.C+ D COPY OF RESOLUTION OF BOARD OF DIRECVO F PARROT G OM MOONS OF W N LAND INC. WLevine Mary Levine, as President and S r t Y e by e c k` they, of Parrot Dr, �, ration duly organized and od. fung under Island, Inc.,a � of the Board of Directors of lawsaGardens State ofW,,"), do 'hereby minify' on e r of "the was d� called and held at the nff'ica� of said Corporation� the following said C 2000, et which meeting a quorum was present and was �� Inc.„aFloridacorporation, ar�ci raiiort, Mda Parrot Jungle it Gardens, r ida a as WHEREAS,Miami s Cam the City �� 1'rTiaa� { "City"), ate parties to that certain ��e and Development S tuber 2,1991(the "Lease"); and agreed enter into a WHEREAS, this Corporation has requested and the Cityhas modification of the fie; and Corporation have review. and sheztholders of the -WHEREAS, the ale Dinar and ��d Modification to Lease and Development Agreementaa , the forte �d substance of the proposed approvedResolution of the City Corr ssion (the "Modifacati0n"). approved-byyTry and Mary Levine, Pid� and }?e it resolved that I r. B. Iki r r ent be NOW, r velv, are hereby authorized a sd instructed ! to do why jointly b S Y of a Corporation, on of the Lease, dand lat said o� tkrs are s Corporation the r3� appropriate tin ester into the Modification or a u rally nu t and directed to + e the a ' WO effect this :Resolution. M�iatl d such other documents as may be necessary P Rlutiom w� at which the foregoing ratite and We further crr�y the meeting of the Boar�. of T1ire=ser and By -Laws of said Corporation adopted was early called and heed in accordance with or d+�tuatethe �ded as rite date hereof tl�.t said Resolution has not b�� modified, Dated at ,, f a Vlirta, this k "' day of ._________ ___, 2000. *140:11114 Parrot jungle and ,rdens of 'Watson Island,Irso , , ordcorporation CORPORATESEA `° er or 2'6444 � q' ��'�'d� SEAL :t tNa��►e,1) . �. • .1 V dr vi, vine Title: /,, resid t r 0*aF6,*,{�■ !4 Attest: '. - ,2,„ faFll■i1.F�i`�g9kti� PrirktN Vitae Title, / Seoretary T:ONGFASEYIPAPADrerg C nIZAW LEVMS dLUTICKdae TDTPL P.10 OFF. REC ex. 2O6O2PG3487 0 R 5 I ` 9 7 8 21)02 Atl+1 19 j.11:36 MODIFICATION TO LEASE AND DEVELOPMENT AGREEMENT THIS MODIFICATION TO LEASE AND DEVELOPMENT AGREEMENT (the "Modification") is made as of the rrk' day of 14 , 2002, 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 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 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 fellows: (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. OFE REG BK. 20602PC3488 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. S. 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 terixns, 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' .WHEREOF, Lessor has caused this Modification to be executed in its naive and on .ifs behalf -by the City Manager of the City of Miami, Florida, the City CIerk of.the.Cityof Miami, -Florida, and the Lessee as signed as of the date herein first above written.._., • ,_, LESSOR: CITY OF MIAMI, a municipal corporation of the State of F • i — �.,6 By: l 012 1.17:r ,,''` Ji City Manager APPROV CO dro V Attorney TO FORM AND '+FF AEC BK. 2O6O2PG3499 PARROT WATSON corporation, GARDENS, JUNGLE & GARDENS OF ISLAND, INC., a Florida f/Ida PARROT;? JUNGLE & INC., a Florida corporation By: Bernar ` M. Levin] President STATE OF FLORIDA COUNTY OF MIAMI-DADE OFF. REC BK. 2O6O2PG3490 ) SS: The foregoing instrument was acknowledged before me this /5714 day of , 2002, by Bernard M. Levine as President, and Mary Fl. Levine as Secretary, of Parrot.TJtt�gle and Gardens of Watson Island, Inc., a Florida corporation, f/k/a Parrot Jungle and Gardens, Inc,, on behalf of the corporation. He/she persony apeared bfo eremandis e, personally known to me or produced allas identification. Notary: Print Name: Notary Public, State ofFlorida My commission expires: SEYMOUR N. SINGER MY COMMISSION 7+CC•78?505 PXPIRfeS: 1J12/.?W2 l-N00.7•1YelTA l PIA Notary Scr icai 3 flouting Co OFF. AFC cif. O642P6349r 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 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 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 ofBeginning; 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 feel 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 arc 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 ofBeginnn ing. vrr. MIA BR. f .W 4 4ci f - ti. 7 rP VP AVIROM &ASSOCIATES. INC. SURVEYING & MAPPING 50 S.W. 2N0 AVENUE. SLATE 102 aOCA RATON. FLOREDA 33432 TEL. S5R1P 332-2594. FAX (5671 384-7725 �',.ar:nt "skl.'r.,rsm. �c�� o,wc+m,®t'°'"a sarre,.c warcrrr, iwy � a5 o U'O DESCRIPna. -.',..c. rows,,,.....9O6..r+.e'aa :• n.rR Us.* 5.:51••e••wraciF r, y [aff•rraDaneon.•-'ypATiM:iyrl Mtn. ova wv n L...... Y n Pa..ar °mu•IF. 'f+.rw.ax. re.c-Fce9..r Wr±l grrrt.. ea,' Flaw .J.a ,+,Ferryamn.lm.m}3...,. Vwrq. t*[ hm.,Co.. ,.,..' 11ws.i. Y!2'r'{.....e.F.a.. Mae.. vein Fe co........ co q�M: t..., c'a.C4F.: F a orwwmla+enTd-n,.F. M Arta. Ex. NM. rqt i &Coo �r got SCEs.... sr...... or Erwin a;no...r. leer M.y.. w I-.nr.* Ear b t paw Ell mr.oc. e.v..wrat:.' •WFa ar.,Pe... c9ofwc• can M"`at 444 .........1 r.,aai n BEGfµyt....-.enc. alye, hw.epere °aruw.c.e _ r^'e.�.. Ow. ra, wry arrq n a of as .a..a..w.s rt3+�wwra uss.atltara aM1 lea tT o1415.6. I4. ryRr. 11?1ar-r..n.Y, rrwe#,+..x.r ........A.5, dat+armc.. a wewrey amrr ow aaTr-faytp Cm, ra'. a imr•-ava+q 9a.t. ar9Ta51a9r rm.P '+,5u.dr[I ',e%&: rnr.c u dole art of a9,,... .vwPar WA. 0 tm o4re.Rnie.r,.a.s,t. s apy.'�'r. nte,la a...A a�.wre Tr yrsi5 jM �eri 'rrm �"'r.[final. fi'J .V et wlname • w.r a a.1 w11, •e°'r oen_ag� arm ra. ort.•r.nyr.r 1,1. law ue.... n - r.tr. m.,.COCO T °mow a ..F. c a+raaM. "°°�"e'rry aE a. c.oircew.f..y_ ^:W..tv Ab»r.mc P. CCvx.,-...F.,........,,, e'i._wl.r. .r. 2O6O2PG3492 9�nvrrn.r� • 4R'8 REPORT mu.aer..ra'wesw em9f law wR+ 9a.ewc CFO 6a,p,. tins.0 aw.ym Na Two Doenoo W.ce Ma seal aotmt Pam Ned Aatdl q c ward* .p Fury rvwnar *-Pp4py1•y yt 1,mwrwaa Mn�4wiar Macwayyar.lr•r4 S. I.. Rau aamok, yyyyymy Se.. won oco. B.a'N.?a-n Mnsm �vrM r_ coI.M.M WlYcs 4K enM.m le.N varmyo! ho • arnl.a44. A+5 a,4. 91f ' •-rl.r.G gam 0! 1• .o 6vm9ral ur`woo 1 Fos, /riJCL. 4em111klbc[! IIm M IF, %D.: clw.lnt _ Rlac �� OF a...,y %ei a Ca.l rs ew- c= Pay fe.ir y, aP^-,Iwi[.✓-rmw S.p +.. Ga i'^)'su R� CERTIFY-MA >E to nswuu90attpr So. ae. u'or Slaaan na.1or °"r'.rocerurtf�py.,wrr.ea 49 v... women Imlilr.Fs asI .er.b rnr merWwr FSO.FEZ b/rwCam.NCIT-y rayejmneM .r.rq mp..r b re mute0w 0 yn-rn>ab.aa.n v...rew.r rnywaeran caw Ivn RA lOy[I ns ` -. Rqr+mwwl.e Zaa. I . „ry so.. 2,0602PG3493 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-1-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 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 Iine 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. 94.07. PARROT JUNGLE & GARDENS DOUGLAS MAC AFTHljEp CAUSEWAY AVIROM & ASSOCIATES. INC. SURVEYING & MAPPING 50 S.W. 2N0AVENUE. SUITE 102 BOCA RATON. E`LORUDA 33432 TEL. 15511 3512-2584, FAX 15611 394-77215 w`"..rs is c,c.w.,[c o darns . ienwrze� 64 C h3ZU90Z ram. r I..m'D6..,..d..4Sutra aa sr ..... 4 av+.+va.....,.by ma Aeo zo T . .w.'�,a le..y I�ar....o..ra1I..Do.D.. DWI Rem n�. !or swc um,aew.a.oma riw.k.w.l mc...r. -em .....wr.4.w.a A.Aire•e 5'm+.a uTr.ti m, *moo-Ms.ueM Whgy..pr �-me Guey,emq•sf,4 De 6 Tee w,ml.am..w.; ass W+webs:....d • Ma ro.R9656 OM a mp T -c , . c.11. •"_ r e,21.1`.r.,.a ..mac ._' ..ctn .M-....y, N Wv�VleryF ppg uaamw peak Ala 11.1.cr 0 sacaatc nce oc. .461 W. 10.Mesm tl Oaq.?. 6s 11..tl 52 Tnm.p53 .as.... 4 Fax. casi assn., T.a,a1....>.. »'14lxeapp NON VNbaA nluu+D.f...ryaEeF'IaN is11 Idea,. al A. Cary row., .;as aa a...yppnM [M Swar u' ,. msg. saw..�_ .. ..as ran. W or ) .=tit b PnMSq -, ! 4.31iG. MI -ma. ..a15 7.0-w� 9,6? .4.72 rC. w.r.luc. s[a.es ,,arm n4 w. wv.a. a9a4Fs. c.. cams, G:..r-a.maso-a._. CENUICATTOM I,cer>�.IVr qe lntalm.. D>.•4. yr.r M W ran. vvw �`N%Mea.r mr.+ Went.r. .woe LkCl4sass[P•DPe..D...muraa. lay hk. eon. Rv.SS � . Prveaa..,Sme.s sRVsogm '�.a..10, Dv.a maw POW mppx�p. oTe.'o.Mpr Pia, �hc - Tt- K. THIRD MODIFICATION TO LEASE AND DEVELOPMENT AGREEMENT THIS MODIFICATION TO EASE AND DEVELOPMENT AGREEMENT (the "Modification") is made this, xglay of colvie✓ , 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, Vida 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 thethe 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 terns 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 J, 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:Docu»ent And 3 final 9-15-OS,doc CD include any .sublease of an "Additional improvement" and the term "Subtenant" sihaIl 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 Iegal 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 Revenge is amended to read as follows: "g. Rent paid to Lessee by Subtenants, and rent paid by sub -subtenants • to their sub -sublessors," C. Article IV is modified to require the Lessee to design and develop the Additional Improvements, in accordance with all applicable laws, at its sole cost and expense. Lessee acknowledges that, with respect to the Additional Improvements, the Lessor does not make any disclaimers or representations, and specifically disclaims any representations and warranties relating to the construction, use and operation of the Additional Improvements, compliance with zoning and land use regulations and physical condition of the Subject Property, including, but not limited to, compliance with environmental laws. Lessor and Lessee agree to negotiate an agreement for the development of the Additional Improvements that will include provisions similar to those contained in Article IV, relative to the development of the Leasehold Improvements, including the provisions relating to security for Lessee's Construction obligations (Section 4,4), time for commencement and completion, (Section 4.5), and manner of construction (Section 4.6) D. The following provision shall be added to Article V, Section 5.1(b): (iii) Percentage Rent for the Additional Improvements shall be an amount equal to l% of Gross Revenue received by the Subtenant or, if operated by other than e 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 Auld 3 final 9-I5-48,dac C) 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 .Iocated on the Subject Property, or realizes a Transfer, as specified in Subsection 8.3(c), or sells Lessee's stook (subject to the provisions of 8.9(b) below with respect to publicly traded stock), upon receipt by Lessee of the proceeds related to such Transfer or sale, Lessee shall pay Lessor an amount equal to Three (3%) percent of the total purchase price less the amount of outstanding debt secured by leasehold mortgages and less the return of Lessee's unamortized equity invested by, the owner of the interest being transferred. For purposes of this Lease, the unamortized equity shall be defined as the equity invested by the owner of the interest being transferred amortized on a straight-line basis over a 20. year period from the calendar year in which it was invested, with said unamortized equity investment accruing an annual rate of return of 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 Jess 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%." 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 Paynient 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:Docuinent Auld 3 final 9-]5.08,doc I. 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 - Ichiinura-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 corpoPa /0,29- By: Priscilla A.A. ThompSon, City Clerk Pedro G. Hen ez, City Manager AIVII, a municipal ors:Dacu lent And 3 rina14-15-08.doc ATTEST: • Print Name: Title: fl t6-e- Approved as to Form and Correctness Julie Bru pniA C Attorney''"- ors:Docurnent Aid 3 final 9-15-08.doc "LESSEE" PARROT JUNGLE AND GA WATSON ISLAND, I corporation By: ernard M.LLevine, Preside Title: Gle--f,e. !f Approved as to Insurai Requirement LeeAnn Brehm, irecto'r Risk Management -Department rNS OF a Florida 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. or5:Docuuttent Aind 3 final 9-15-08,doc FOURTH MODIFICATION TO LEASE AND DEVELOPMENT AGREEMENT • THIS MODIFICATION TO LEASE AND DEVELOPMENT AGREEMENT (the "Modification") is made thisxy''day of eT nt. , 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, flk/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, 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 (1) allow Lessee to retain a minimum of 400 existing full-time jobs, (2) secure the City's interest and obligation under the $25 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. Page 1 of 3 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, Cit!Clerk Approved as to Form and Correctness Julie'. Bru Cif Attorney \Ct ATTEST: Print Name: Title: • "CITY CITY OF corpora By: Pedro G. He rj z, City Manager , a municipal Approved as/to Insur.fice Requirements LeeArn Brehm, (RsFtMana9ern o i(ecto r 'nt Department "LESSEE" PARROT JUNGLE AND GARDENS OF WATSON ISLAND, INC., a Florida corporation Be nerd M. L-vine, President Title: 1D Page 3of3 CERTIFICATE OF CORPORATE RESOLUTIONS AND CORPORATE STATUS The undersigned, (Bernard Levine, as 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 Slate of Florida and is authorized to transact business In the Stale of Florida, 2, The President of the Corporation hereby adopts the following Resolulions RESOLVED, thel 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 Modifloalion 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 to execute and deliver and the Secretary of the Corporation is hereby authorized to (but is not required to) affix the seal of the Corporation Io 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 io the same or lo any of the same as such officer of the Corporation may deem advisable, al! 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 WHEREOE Ili undersigned has hereunto set his hand and a ixed the Corporation's corporate seal this ay of April, 2009. ard Levine, President STATE OF FLORIDA : SS COUNTY OF MIAMI-DADE ) ., �� The foregoing instrument was sworned to and subscribed and acknowledged before me this d L day of April, 2009 by Bernard Levine, as President of the Corporation, NOTARY PUBLIC, Stale of Florida at Large My Commission expires: Elda M. Davis �hPtiYfb���Z w,S( 7 p SiOSfRn IfEx1, 2J WWW,AMDNNOTARYaom FIFTH MODIFICATION TO LEASE AND DEVELOPMENT AGREEMENT THIS FIFTH MODIFICATION TO LEASE AND DEVELOPMENT AGREEMENT (this "Modification") is made as of theCC'hday off" , 2019 (the "Effective Date") by the CITY OF MIAMI, a municipal corporation of the State of Florida ("Lessor" or "C") and ESJ JI LEASEHOLD, LLC, a Florida limited liability company ("Lessee"). RECITALS: A. Parrot Jungle and Gardens of Watson Island, Inc., a Florida corporation f/k/a Parrot Jungle & Gardens, Inc., a Florida corporation ("Parrot Jungle") and the City entered into that certain Lease and Development Agreement demising to Parrot Jungle the Subject Property (as defined in the Lease). The Lease and Development Agreement is dated September 2, 1997 and has been modified by: (i) that certain Modification to Lease and Development Agreement, dated April 14, 2000, by and between Parrot Jungle and the City, (ii) that certain Modification to Lease and Development Agreement, dated August 13, 2002, by and between Parrot Jungle and the City, (lil) that certain Third Modification to Lease and Development Agreement, dated October 29, 2008, by and between Parrot Jungle and the City (the "Third Modification"), (iv) that certain Fourth Modification to Lease and Development Agreement dated, June 24, 2009, by and between Parrot Jungle and the City, and (v) that certain Lease Extension Agreement dated May 2017 by and between the City and Lessee (collectively, the "Lease"). B. Pursuant to that certain Assignment and Assumption Agreement and Termination of Sublease, dated April 4, 2017, by and among Parrot Jungle, PJG Watson, L.L.G., a Florida limited liability company, Lessee and the City, recorded in Official Records Book 30486, Page 2539, Public Records of Miami -Dade County, Florida (the. "Assignment and Assumption"): (i) Parrot Jungle assigned all of its right, title and interest in and to the Lease and the Subject Property to Lessee, (ii) Lessee assumed Parrot Jungle's obligations under the Lease (except as otherwise provided in the Assignment and Assumption) and (iil) Lessee succeeded Parrot Jungle as Lessee under the Lease, effective as of the Effective Date (as that term is defined in the Assignment and Assumption), all as more particularly set forth in the Assignment and Assumption. C. The Third Modification modified the Lease by adding a definition for "Additional Improvements" which included a themed hotel and related retail and entertainment, thereby providing Lessee with the opportunity to develop, construct and operate a hotel on the Subject Property, subject to a ballot referendum approving the same. D. The City and Lessee have agreed to further modify the Lease to provide for, in the event that Lessee proceeds with the construction of the Hotel (as defined below), (i) the terms and conditions for the development and construction of the Hotel on the Subject Property, and (ii) an extension of the Lease Term until September 30, MIADOCS 16113299 12 39988, 0031 1 2099, ail subject to, and in accordance with, the terms and conditions set forth in this Modification and, as stated above, subject to a ballot referendum approving the same. E. The City Attorney has opined that a 4/5's affirmative commission vote is required in order to include in the referendum a competitive bid waiver under City of Miami Charter Sections 3(f)(iii), 29-B and 29-C. The approval of the competitive bid waiver by referendum also would have the effect of waiving any applicable competitive bidding requirement in the City Code. F. On June 8, 2018, the City Commission approved the Modification and also approved by 4/5's affirmative vote the inclusion of the competitive bid waiver in the referendum. G, This execution of this Modification was authorized by City Commission Resolution No. R-18-0232. H. This Modification was approved by referendum on August 28, 2018 (the `Referendum"), by a majority of City of Miami voters as required by City of Miami Charter Sections 3(f)(iii), 29-B and 29-C. NOW, THEREFORE, in consideration of the mutual promises contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Lessor and Lessee hereby agree as follows: 1. Recitals; Definitions. The foregoing Recitals are true and correct and are incorporated herein by reference. All capitalized terms used in the foregoing Recitals and elsewhere in this Modification, but not defined herein, shall have the meanings ascribed to those terms in the Lease. 2. Lease Term. The Lease Term currently expires on September 30, 2060. Notwithstanding anything to the contrary in the Lease, in the event that the Master Permit (as defined below) for construction of the Hotel is issued, the Lease Term shall be extended to September 30th, 2099. Lessor and Lessee will, prior to commencement of such extension term, order and receive appraisals of the Subject Property, in accordance with Section 5.3 of the Lease, for purposes of calculating Rent for such extension term. 3. Additional Extension Term. Assuming the Lease Term has already been extended to September 30, 2099, the Lessee is hereby granted the option of further extending the Lease Term for a single fifteen (15) year period (the "Additional Extension Term") provided the Lessee is not in default of any of the material provisions of the Lease or this Modification on the date of the exercise of the option. The Lessee may exercise this option at any time after December 31, 2076. To exercise this option, the Lessee must give the Lessor prior written notice at least six (6) months prior to the expiration of the Lease Term. The Additional Extension Term will be on all of the same terms and conditions as contained in the Lease and this Modification. Lessor and Lessee will, prior to commencement of the Additional Extension Term, order and MIADOCS 1611329g 12 39988. 0031 2 receive appraisals of the Subject Property, in accordance with Section 5.3 of the Lease, for purposes of calculating Rent for the Additional Extension Term. 4, Section 1.2 — Defined Terms. Section 1.2 of the Lease is hereby amended to delete the defined term "Additional Improvements" and replace it with the following defined term: "Hotel" means a theme based hotel on the Subject Property, with ancillary retail and/or restaurant space not to exceed ten thousand (10,000) square feet and meeting space not to exceed thirty thousand (30,000) square feet. The Hotel shall be subject to all applicable planning, zoning and building requirements and other applicable governmental approvals, Further, the Hotel shall have a maximum height of One Hundred Thirty feet (130') (as height is defined in the zoning code), and contain no more than Three Hundred (300) rooms, with the parking required under the zoning code, which may be located on the Subject Property or within 1,000 feet of the Subject Property. The Hotel will be built in the general vicinity of the existing garage. For the avoidance of doubt, any mention anywhere in the Lease of the term "Additional Improvements" shall now be replaced with "Hotel". In addition, the defined term "Leasehold Improvements" set forth in Section 1.2 of the Lease is hereby amended to include the Hotel, once constructed, as part of the Leasehold Improvements. 5. Development and Construction of Hotel. The Lease is hereby amended to add the following provisions regarding the development and construction of the Hotel: (a) Lessee's Right to Construct & Maintain Hotel The Lessee shall have the right, but not the obligation, at its own cost and expense, to design, develop, construct, install, equip, operate, manage, sublease, rent and maintain the Hotel on the Subject Property in accordance with the terms and conditions set forth below. If Lessee elects to proceed with the development of the Hotel, Lessee shall be required to comply with all of the requirements imposed herein as well as in the Lease. (b) Architectural Plans Lessee shall, at Lessee's sole cost and expense and within sixty (60) days of the Effective Date, submit to 'Lessor for Lessor's approval (not to be unreasonably withheld, delayed, or conditioned) its Architectural Plans (defined below) for the development and construction of the Hotel. The approval of the Architecture! Plans under this Modification will be deemed to be made only in Lessor's capacity as landlord, The "Architectural Plans" shall be defined to include, but not be limited to, the MIADOCS 16113299 12 39988. 0031 3 design and location of the Hotel and open space, the estimated commencement and completion dates for construction, estimated times and manner of delivery of equipment and materials, and the proposed location of on -site utility systems and all connections to utility supply lines at the perimeter of the Subject Property, all necessary roadways, ramps, pedestrian circulation and parking areas, required landscaping (including the landscaping of open space) and fences, In the event that Lessor disapproves Lessee's Architectural Plans, Lessor must do so in writing delivered to Lessee within ninety (90) days of Lessor's receipt of such plans. Lessor's notice shall include a reasonable explanation of the reason(s) for Lessor's objection(s). Lessee shall, within thirty (30) days of receipt of such notice, or such longer period of time as the parties shall determine is reasonable in light of the requested modifications, modify the Architectural Plans in accordance with the reasons set forth in Lessor's disapproval notice. Lessor shall be required to approve or disapprove by written notice to Lessee any resubmitted Architectural Plans within ninety (90) days of its receipt of same (so long as any disapproval notice contains the detail as required above). In the event that the Lessor fails to provide written notice of disapproval within ninety (90) days of Lessee's submittal or resubmittal of the Architectural Plans to. Lessor, then such Architectural Plans shall be deemed approved by Lessor in its capacity as a landlord. The Parties shall reasonably cooperate to resolve any differences regarding the Architectural Plans, and until the Lessor has approved the Architectural Plans or failed to timely deliver a disapproval notice to Lessee, the Lessee shall continue to resubmit revised Architectural Plans or additional information as required by the Lessor, (c) Construction Plans (i) Submission. Lessee shall, at Lessee's sole cost and expense, submit to Lessor for Lessor's approval (not to be unreasonably withheld, delayed, or conditioned) its Construction Plans (defined below) for the commencement and completion of the construction of the Hotel, The plans submitted shall include final and complete plans and specifications, drawings, calculations and data setting forth the construction work (the "Construction Work"), with the same detail as would be submitted in an application for a building permit, along with a detailed critical path timeline for performing the same (collectively, the "Construction Plans"). Additionally, Lessee's architect or engineer shall include in this submittal a certification that these Construction Plans are in conformance and consistent with the previously approved Architectural Plans. The Construction Plans shall bear the seal of Lessee's architect or engineer. The Lessee shall submit such additional data, detail and/or information as the Lessor may reasonably request in order to properly MIADOCS 16113299 12 39988. 0031 4 review the Lessee's Construction Plans, Notwithstanding anything to the contrary herein, the Architectural Plans and the Construction Plans, whether or not submitted to the Lessor, shall be retained by, and remain the property of, the Lessee, subject to Florida's public records law. In the event that Lessor disapproves Lessee's Construction Plans, Lessor must do so in writing delivered to Lessee within ninety (90) days of Lessor's receipt of such plans. Lessor's notice shall include a reasonable explanation of the reason(s) for Lessors objection(s). Lessee shall, within thirty (30) days of receipt of such notice, or such longer period of time as the parties shall determine is reasonable in light of the requested modifications, modify the Construction Plans in accordance with the reasons set forth in Lessor's disapproval notice. Lessor shall be required to approve or disapprove by written notice to Lessee any resubmitted Construction Plans within ninety (90) days of its receipt of same (so long as any disapproval notice contains the detail as required above). In the eventthat the Lessor fails to provide written notice of disapproval within ninety (90) days of Lessee's submittal or resubmittal of Construction Plans to Lessor, then such Construction Plans shall be deemed approved by Lessor in its capacity as a landlord. The Parties shall reasonably cooperate to resolve any differences regarding the Construction Plans, and until the Lessor has approved the Construction Plans or failed to timely deliver a disapproval notice to Lessee, the Lessee shall continue to resubmit revised Construction Plans or additional information as required by the Lessor. Notwithstanding anything to the contrary in this Modification, Lessor shall not have the right, in its landlord capacity, to disapprove any items approved as part of the Architectural Plans. The Lessor may refuse to grant approval if, in its reasonable opinion, any of the proposed Construction Work as set forth in the Construction Plans: a. is unsafe, unsound, hazardous or improper for the use and occupancy for which it is designed; or b. is designed for use for purposes other than those authorized under this Modification; or c. is inconsistent with the approved Architectural Plans; or d. does not comply with any other provisions and terms of the Referendum or this Modification, or e. does not comply with Florida law, the City Charter, the City Code, Miami 21, or any other applicable laws or regulations. (ii) Lessee Solely Responsible. The Lessee agrees to be solely responsible for any plans and specifications used by it and for any loss or MIADQCS 16113299 12 39998. 0031 5 damages resulting from the use thereof, notwithstanding that the same have been approved by the Lessor and notwithstanding the incorporation therein of Lessor recommendations or requirements. In no event shall approval by the Lessor, in its capacity as Landlord, of any plans, whether the Architectural Plans, Construction Plans, or otherwise, impose any liability on the Lessor to the Lessee or any other person for any errors or defects contained in such plans or for the failure of the Hotel or work related to such plans to comply with any requirements, any such liability to be that of the Lessee and/or the professionals who prepared such plans. (d) Lessee's Financial Obligations; Proof of Funds All costs, whether "hard" and/or "soft" costs, for the development and construction of the Hotel ("Hotel Construction Costs") shall be borne, and paid by Lessee, which Hotel Construction Costs may be financed through a third -party lender, provided that at no time shall the total financing for such Hotel Construction Costs be greater than seventy five percent (75.00%) of the overall fair market value of the Hotel as determined by the lender. The total Hotel construction costs shall be no less than fifty million dollars ($50,000,000.00). Lessee shall deliver, prior to any commencement of any construction, to the City Manager or his/her designee, evidence, as may be reasonably satisfactory to the Lessor, that Lessee has sufficient funding or binding funding commitments to construct the Hotel. In the event that Lessee obtains financing for the construction of the Hotel and in connection therewith encumbers Lessee's leasehold estate with a mortgage, the provisions of Article VI (Mortgages and Mortgagees) of the Lease shall apply to such leasehold mortgage, (e) Development Schedule In the event Lessee proceeds with the construction of the Hotel, Lessee will be required to (i) obtain a Master Building Permit ("Master Permit") for the Hotel from the City within four (4) years of the Effective Date of this Modification, and (ii) receive a temporary certificate of occupancy ("TCO") for the Hotel within six (6) years of obtaining the Master Permit. Notwithstanding anything to the contrary herein, the foregoing time periods for obtaining the Master Permit and receiving the TCO shall be extended by delay caused by force majeure, or third party litigation that questions the validity of a referendum vote or the City Commission action to place a question for referendum. In the event of delay as specified in the preceding sentence, the deadlines to obtain a Master Permit and TCO shall be extended by the length of the delay. Ail development will comply with the building permit provisions of Section 29- B of the City Charter, as amended. If Lessee does not obtain the Master Permit and TCO within the time frames stated in this Section 5(e), then Lessee shall lose its right to develop the Hotel and the lease term M ADOCS 16113299 12 39988, 0031 6 extensions referenced in Sections 2 and 3 of this Modification shall not be effective. (f) Review Lessor shall have the right, through its duly designated representatives, to inspect the Construction Work and the plans and specifications thereof, at reasonable times during working hours and after giving Lessee advance written notice of said site inspection, during the progress thereof and from time to time, in its discretion. (g) Contractor's Insurance The Lessee shall require every contractor performing any work pertaining to the Hotel to furnish certificates of ,insurance, including Builder's Risk insurance, if applicable, in the amounts listed on Exhibit A attached hereto. Copies of such certificates shall be furnished to the City of Miami Risk Manager, 444 SW 2nd Avenue 9th Floor, Miami, FL 33130. The City will be named as an additional insured on such policies. (h) Conveyance of Improvements The Lessee; in consideration of the granting of this Modification, shall upon termination or expiration of the Lease, convey unto Lessor, free and clear of all liens, title to the Hotel and fixtures that cannot be removed without causing significant damage to the improvements. Notwithstanding anything to the contrary, the FF&E and personal property of Lessee and its subtenants, licensees and concessionaries shall not be conveyed to Lessor at the end of the Lease Term. In addition to the Hotel to be conveyed to Lessor as referenced above, Lessee shall further grant to the Lessor the right to purchase from the Lessee, all of Lessee's furniture, fixtures and equipment ("FF&E") and personal property and equipment added to or installed at the Hotel by the Lessee during the Lease Term, including all furnishings and equipment at fair market value for used items, determined by an appraiser, whose fees shall be shared equally by Lessor and Lessee, provided that the Lessor provides written notice to the Lessee at least forty five (45) days prior to the expiration or termination of the Lease Term of the items it desires to purchase. Payment for these personal property and FF&E shall be paid in full by Lessor on or before the date of termination or expiration of the Lease. If Lessor does not elect to exercise its right to purchase all of the FF&E and personal property and equipment, then Lessee shall have all of this property removed on or before the expiration or termination of the Lease Term, Any of these items left on the Property after the expiration will be deemed abandoned and the Lessor has the option to keep said MIADOCS 16113299 12 39988. 0031 7 items or have them removed from the Property and discarded at the Lessee's expense. (i) Subject Property to Remain Free of Liens The Lessee shall make, or cause to be made, prompt payment of all money due and legally owing to all persons doing any work, including subcontractors, or providing supplies and equipment in connection with the construction, reconstruction or operation of the Hotel. The Lessee shall have no power or right to and shall not in any way encumber the Lessor's fee simple interest in the Subject Property. Other than those caused by Lessor, if any liens or encumbrances shall at any time be filed against the Subject Property during the Lease Term, then Lessee shall, upon acquiring knowledge of such lien or encumbrance, promptly take and diligently pursue a cause of action to have the same discharged or to contest in good faith the amount or validity thereof and if unsuccessful in such contest, to have the same discharged or transferred to bond. If Lessee fails to discharge, contest or bond the lien within one hundred eighty (180) days from the date the TCO for the Hotel is obtained, then Lessor, in addition to any other right or remedy that it may have, may take such action as may be reasonably necessary to protect its interest, and the Lessee shall be responsible for any and all reasonable verifiable costs incurred by the Lessor in connection with such action, including all reasonable legal fees, costs and expenses, (1) Lessor's Approval All Construction Plans furnished under this Modification are expressly subject to Lessor's written approval, which the City Manager is hereby authorized to act on behalf of for purposes of such approval, and which approval he or she may not unreasonably withhold, condition or delay, and which approval is subject to the criteria specified in Section 5(c)(i) of this Modification, No approval by the City Manager of any Construction Plans furnished under this Modification pursuant to this section shall relieve Lessee of any obligation it may have at law to file such Construction Plans with any different governmental authority having jurisdiction over the issues and obtain approval from said different governmental authority. Notwithstanding anything in this Modification to the contrary, the approval by the City, in its capacity as landlord, of the Architectural Plans and Construction Plans under this Section 5 shall have no effect on the City's regulatory authority to review such Architectural Plans and Construction Plans. This includes but is not limited to all planning, zoning, and building requirements and other City approvals. Such regulatory powers are not waived nor is the City's regulatory power deemed estoppel because the MiADOCS 16113299 12 39988, 9031 8 City, in its landlord capacity, has approved the Architectural Plans and Construction Plans. 6. Hotel Stabilization Date. "Hotel Stabilization Date" means the date that is the earlier of (a) the first day of the thirty-seventh (37th) month after the date the Hotel opens to the public for business, or (b) the date the Hotel's Gross Revenue reaches Twenty -Three Million Dollars ($23,000,000.00) in a year. Lessee and Lessor shall execute a written document confirming the Hotel Stabilization Date which shall be added to the Leaser 7. Hotel Annual Rent. Commencing on the date that the Hotel opens for business to the general public and on the first (1st) day of every calendar month thereafter until the Hotel Stabilization Date, Lessee shall pay, in addition to Minimum Annual Rent and Percentage Rent (both of which are not related to the Hotel and do not include Gross Revenue generated by the Hotel), Hotel Annual Base Rent to Lessor in the amount of Two Hundred Fifty Thousand Dollars ($250,000.00) per year, payable in equal monthly installments of Twenty Thousand Eight Hundred Thirty -Three Dollars and Thirty -Four Cents ($20,833.34) ("Hotel Annual Base Rent"). Beginning on the Hotel Stabilization Date and on the first (18t) day of every calendar month thereafter, Lessee shall pay Hotel Annual Base Rent in the amount of One Million Two Hundred Twenty Thousand Dollars ($1,220,000.00) per year, payable in equal monthly installments of One Hundred One Thousand Six Hundred Sixty -Six Dollars and Sixty - Seven Cents ($101,666.67). Moreover, Lessee shall pay to Lessor, within sixty (60) days after each anniversary of the Hotel Stabilization Date, Hotel Annual Percentage Rent in the amount, if any, by which the sum of Five Percent (5%) of Gross Revenue from the Hotel for the immediately preceding twelve (12) months exceeds the Hotel Annual Base Rent ("Hotel Annual Percentage Rent"). If the first payment of Hotel Annual Base Rent does not fall on the first day of the month, the first payment shall be prorated based on the number of days in such month. Notwithstanding anything to the contrary in this Modification or in the Lease, Gross Revenue generated by the Hotel shall not be added to the amount of Gross Revenue used for calculation of Percentage Rent that Lessee is required to pay under the Lease. 8. Hotel Annual Base Rent increase; Credit for Seawall Repairs. a. Every five (5) years following the first day of the month following the Hotel Stabilization Date, the Hotel Annual Base Rent will increase by the increase in the cumulative total of the Consumer Price index ("CPI") over that prior five (5) year period, or Four Percent (4%), whichever is lower. b. The parties acknowledge that the seawall and perimeter fence of the Subject Property suffered damage and the beach at the Subject Property suffered erosion due to hurricanes in 2017. Accordingly, it is necessary to perform repairs to stabilize the "rip -rap" portion of the seawall, install a new perimeter fence after seawall stabilization is complete, engage in beach renourishment, and perform related repairs and improvements (collectively, the "Seawall Work"). To the extent that Lessee expends funds on hard or soft costs MIA000S 16113299 12 39988. 0031 9 for Seawall Work (collectively, "Seawall Costs"), Lessee shall be entitled to a dollar for dollar credit against rent due (against Hotel rent and/or non -Hotel rent, at Lessee's option) under the Lease in the following manner: The maximum amount of the credit for Seawall Work shall be $500,000. The credit shall be applied in the following amounts: $150,000 credit will be applied to rent due during the first twelve (12) months after the Effective Date; another $150,000 credit will be applied to rent due during the second twelve (12) months after the Effective Date; and $200,000 credit will be applied to rent due during the third twelve (12) months after the Effective Date. To the extent Seawall Costs do not reach the annual credit amounts per year as stated above, the amount of the excess may be used as a credit the following lease year, even if that results in such credit being applied to rent beyond a period of three (3) years. Lessee agrees to provide Lessor with appropriate receipts and other reasonable documentation evidencing Lessee's expenditures for Seawall Work. The amount of Seawall Costs credited against rent shall not be considered as Annual Repair Costs (as defined below) but any Seawall Costs not credited against rent shall be considered as Annual Repair Costs. The credit referenced above shall not create an obligation on the part of Lessor to provide any future similar credits for Seawall Work, Lessee agrees that it is its responsibility to perform any necessary Seawall Work on the Subject Property, provided that Seawall Work shall consist of repairs to existing improvements and not the construction of new improvements: g. Ichimura-Miami Japanese Gardens. If and only if the Master Permit for the 1-lotel is issued and Lessee commences construction of the Hotel, Lessee agrees to provide $700,000,00 for the Japanese Gardens in the following manner: Within 30 days after a Master Permit is issued by the City for the Hotel (which Master Permit will include the construction of a connector from the Hotel to the Japanese Gardens), Lessee will notify the City of the amount of hard and soft costs (collectively, "Connector Construction Costs") attributable to the development of the connector. Lessee will proceed to build the connector as provided in this Modification. Lessee will also provide annual repairs and maintenance to the Japanese Gardens for a period of ten (10) years starting with the date of issuance of the Master Permit referenced above. The aggregate cost of the repairs and maintenance each year by Lessee shall be equal to 1110 of the difference between $700,000,00 and the Connector Construction Costs. 10. Energy Educational Facility. If and only if the Master Permit for the Hotel is issued and Lessor executes and delivers the documents required for Lessee to obtain funding from PACE or a similar green energy program, then, Lessee shall develop a green energy educational facility focusing on wind and solar energy at Jungle Island. 11, Affordable Housing and Liberty City Revitalization Trust. a. Upon approval of the Referendum, Lessee shall pay one hundred thousand dollars ($100,000.00) to the City for affordable housing, and contribute MiAOOCS 16113299 12 39988. 0031 10 annually to the City the sum of thirty-five thousand dollars ($35,000.00) per year commencing January 1, 2021 to the Liberty City Community Revitalization Trust for the duration of the Lease Term. b. Upon issuance of any building permit far the Hotel, Lessee shall pay an additional three hundred thousand dollars ($300,000.00) to the City for affordable housing. c. Upon issuance of a TCO for the Hotel, Lessee shall pay an additional three hundred fifty thousand dollars ($350,000.00) to the City for affordable housing. 12. Trolley. Upon approval of the Referendum, Lessee shall pay up to two hundred fifty thousand dollars ($250,000.00) to the City for the purchase of a trolley an or before January 1, 2020, provided that the trolley has a scheduled stop at Jungle Island and the City provides Lessee with the right to paint or wrap the trolley with advertising displays (interior and exterior) for marketing of Jungle Island. 13. Capital Improvements. Beginning on the first anniversary of the Hotel Stabilization Date and each anniversary thereafter Lessee will begin accruing funds into a reserve account (the "Capital Improvements Reserve Fund") in an amount equal to the Annual Repair Costs (as defined below) for the corresponding year. Upon the 25th anniversary of the Hotel Stabilization Date (the "1st Deposit Deadline") all accrued funds shall be deposited into the Capital Improvements Reserve Fund. (As a matter of clarification, Lessee shall not be required to adhere to any annual schedule of deposits and can comply with the preceding sentence by making a lump sum deposit shortly before the 1st Deposit Deadline.). "Annual Repair Costs" shall be $200,000.00 on the first anniversary of the Hotel Stabilization Date which shall be increased annually by 2% as shown on Exhibit B. The Capital Improvements Reserve Funds shall be used by Lessee to complete major capital improvements and property improvements throughout the Subject Property including, but not limited to, the Hotel, that exceed the scope of routine repairs and maintenance as more specifically described in Section 14.1 of the Lease. No later than the 30th anniversary of the Hotel Stabilization Date but no sooner than the 1st Deposit Deadline, the Capital Improvements Reserve Funds due by the 1st Deposit Deadline shall be applied toward major repairs and improvements to both the Subject Property and Leasehold Improvements, including but not limited to substantial mechanical and structural repairs, structural improvements, purchases, upgrades, and commercially standard general improvements, and/or repairs throughout the Subject Property, including but not limited to, the Hotel. The Capital Improvements Reserve Funds shall not be applied to minor repairs due to regular wear and tear. To the extent that capital improvements are made by vendors or sub -lessees of Lessee, including but not limited to the zip -line operator, during a twenty-five (25) year period commencing on the date that Lessee assumed the Lease (i.e,, April 4, 2017), a credit for the total cost of such improvements shall be given toward the Annual Repair Costs. MIADOCS 16113299 12 39988, 0031 11 On the 50th anniversary of the Hotel Stabilization Date (the "2nd Deposit Deadline") Lessee shall have deposited Capital Improvements Reserve Funds equivalent to the amount shown for the 50th anniversary date of the Hotel Stabilization Date on the attached Exhibit B. No later than the 55t anniversary of the Hotel Stabilization Date but no sooner than the 2nd Deposit Deadline, the Capital Improvements Reserve Funds shall be applied toward major repairs and improvements to both the Subject Property and Leasehold Improvements under the same terms and conditions set forth above, On the 75th anniversary of the Hotel Stabilization Date (the "3rd Deposit Deadline") Lessee shall have deposited Capital Improvements Reserve Funds equivalent to the amount shown for the 75th anniversary date of the Hotel Stabilization Date on the attached Exhibit B. No later than the 80th anniversary of Hotel Stabilization Date or the expiration of the Lease, whichever comes sooner, but no sooner than the 3rd Deposit Deadline, the Capital Improvements Reserve Funds shall be applied toward major repairs and improvements to both the Subject Property and Leasehold Improvements under the same terms and conditions as set forth above. Notwithstanding the foregoing, payments and/or accruals into the Capital Improvements Reserve Fund shall no longer be due after the 3rd Deposit Deadline. As the Lease is on municipal property, all work that is paid for with Capital Improvements Reserve Funds shall be bonded if required by section 255.05, Florida Statutes and the City Code, as amended. The City shall be named an additional obligee on all such bonds which shall always be maintained on file and be subject to the review and approval of the City Risk Management Director and City Attorney as to legal form. Lessee shall maintain financial accounting records together with any corresponding documentation of Capital Improvements Reserve Funds funding and use. Said records shall be submitted to the City upon completion of the corresponding capital improvements. Lessee shall maintain the Subject Property in a "best -in -class" condition and to consider capital improvements to the Subject Property on a regular basis, but no less often than as specified above. 14. Transfer Fee. Upon the Hotel Stabilization Date, Section 8.9(a) of the Lease shall be deemed amended to read as follows: "In the event that Lessee realizes a Transfer under the provisions of Subsection 8.3(c) (and subject to Section 8.9(b)), upon receipt by Lessee of the gross sale proceeds related to such Transfer, Lessee shall pay Lessor an amount equal to Three Percent (3%) of the gross sale proceeds actually received by Lessee after the following deductions are made to the gross sale proceeds amount: (i) any outstanding first debt as well as any other outstanding loans from unaffiliated governmental, institutional, or REIT lenders owed by Lessee and relating to the Subject Property, and less (ii) all actual, third -party out-of-pocket transaction costs directly related to such Transfer, including, without limitation, reasonable outside legal counsel's and accounting fees and costs, outside, unrelated MIADOCS 13113299 12 39988. 0031 12 brokerage fees, documentary stamp taxes, and any other verifiable governmental taxes and fees (not including income taxes). The City will have access to reasonable documentation to confirm that the amount of the Transfer Fee paid is accurate. 15. Refinancing Fee. Beginning on the Hotel Stabilization Date and any time thereafter Lessee consummates any refinancing transaction with any unaffiliated third party lender (the "Lender") that leads to a mortgage being held by such party encumbering Lessee's interest in the Subject Property, then the City shall receive a sum equal to one percent (1.00%) of the refinancing loan proceeds after the following deductions are made to the refinancing loan proceeds amount: (i) all third party costs and expenses incurred by Lessee in connection with the refinancing transaction, including without limitation, Lender's fees, costs and expenses, rating agencies fees, costs and expenses, title and survey costs, escrow fees, broker fees, appraisal costs, consultant costs and attorneys' fees and costs, (ii) all amounts required to fully repay the debt being refinanced, and (iii) all refinancing proceeds not disbursed to Lessee's investors, including without limitation if such proceeds are invested back into Subject Property for operating or capital needs. The City will have access to reasonable documentation to confirm that the amount of the refinancing fee paid is accurate. 16, Ratification. The Lease is hereby ratified and confirmed and remains in full force and effect, as modified by this Modification. In the event of any conflict between the terms of the Lease and the terms of this Modification, the terms of this Modification shall govern. 17. Counterparts. This Modification may be executed in counterparts, each of which shall constitute an original, but together one instrument. 16. Headings. All headings, titles, defined terms and similar language have been inserted only for convenience and shall not affect the meaning of any provision of this Modification, [Signatures Appear on Following Page] MIAIOCS 16113299 12 39988. 0031 13 IN WITNESS WHEREOF, the City has caused this Modification to be executed and delivered in its name and on its behalf by the City Manager of the City of Miami, Florida, and the City Clerk of the City of Miami, Florida as of the Effective Date, and Lessee has executed and delivered this Agreement, as of the Effective Date. ATTEST: Name:Todd BIann.© Title: City Clerk CITY OF M$I II, a municipal corporation of the State of FI rid may: Name: Emilio T. Gonzalez, Title: City Manager [SEAL] APPROVI .DAS TO'iFORM AND CORRECTNESS: By: Na Victoria M= • . - , , / Titl=Cit Attk / APPRC)1VED A,: v / By: Name: Anh-Marie Title: Director of Ri.k Ma a•ement TO IN1:, ANCCE REQUIREMENTS: MIADOCS 16113299 12 39988. 0031 14 STATE OF FLORIDA )SS COUNTY OF MIAMI-DADE ) BEFORE ME, an officer duly authorized by 193m to administer oaths and take acknowledgments, personally appeared 1, C0,12c((7, City Manager of CITY OF MIAMI, and acknowledged that he executed this Modification as City Manager of CITY OF MIAMI, who is personally known to me or has produced as identification. IN WITNESS WHEREOF, I have set my hand and seal in the State and County aforesaid this day of J Prtiiary, 2019. NOTARY PUBLIC Print or Type Name My Commission Expires: OFELIA E. PEREZ :4 nil YCOMMISBfON#PF9006D9 11F S" Bona EXPIRES: GilaUnac r1 9 Thrruins MIADOCS 16113299 12 39988. 0031 15 WITNESSES: STATE OF FLORIDA )SS COUNTY OF MIAMI-DADE ) ESJ JI LEASEHOLD, LLC, a Florida limited liability company By: Name: Title: BEFORE ME, an officer duly aut orized by law to administer oaths and take acknowledgments, personally appeared no..uel 5(-Flo° , Mar&( v' of ESJ JI LEASEHOLD, LLC, and acknowledged that he- e ittd°--his-.. Modification as Mara/a- of ESJ JI LEASEHOLD, LLC, who i ersonally k /a me or has produced as identification, IN WITiq�SS WHEREOF, I have set my hand and seal in the State and County aforesaid this day of January, 2019. My Commission Expires: iN9F;i'°. RACHAEL PETERS MY COMMISSION # GO 20284S EXPIRES:August 2, 2022 rROF ?' Bonded Wu Netavy Pubic undermiters NOTARY PUBLIC Print or Type Name "—ROLOrtoc‘ CiLdvr-s M1AD0C5 16113299 12 39988. 0031 16 EXHIBIT A Contractors Insurance INSURANCE REQUIREMENTS FOR A CERTIFICATE OF INSURANCG- CONSTRUCTION COMPONENT MOTEL AT JUNGLE ISLAND I. Commercial General Liability A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence $1,000,000 General Aggregate Limit $ 2,000,000 Products/Completed Operations $ 1,000,000 Personal and Advertising Injury $1,000,000 B. Endorsements Required City of Miami listed as an additional insured Contingent and Contractual Liability Premises and Operations Liability Primary Insurance Clause Endorsement Explosion, Collapse and Underground Hazards Completed Operations 11. Business Automobile Liability A. Limits of Liability Bodily Injury and Property Damage Liability Combined Single Limit Any Auto Including Hired, Borrowed or Non -Owned Autos Any One Accident $ 1,000,000 B. Endorsements Required City of Miami, included as an Additional Insured III. Worker's Compensation Limits of Liability Statutory -State of Florida Waiver of subrogation Employer's Liability A. Limits of Liability MIADOCS 16113299 12 39988. 0031 17 $1,000,000 for bodily injury caused by an accident, each accident. $1,000,000 for bodily injury caused by disease, each employee $1,000,000 for bodily injury caused by disease, policy limit IV. Umbrella Policy/Excess Liability for the Prime General Contractor A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence $ 20,000,000 Aggregate $ 20,000,000 City of Miami listed as an additional insured Coverage is excess over all applicable liability policies contained herein. V. Umbrella Liability/Professional Liability for Engineers, Architects, Consultants, Sub -Contractors, Others Each occurrence $5,000,000 Aggregate $5,000,000 Retro Date Coverage City is listed as an additional insured on the excess liability VI. Umbrella Liability/ Excess Liability for Demolition Contractor Each occurrence/Policy Aggregate $10,000,000 City of Miami listed as additional insured VI I. Pollution Liability Each Occurrence $1,000,000 Policy Aggregate $5,000,000 City of Miami is listed as an additional insured VIL Payment and Performance Bond (Full Lirnit/Project Value) City of Miami listed as an Obligee VIII. Owners and Interest Liability A. Limits of Liability Each Occurrence $5,000,000 Policy Aggregate $5,000,000 City of Miami listed as a named insured A minimum of 5 years coverage on completed operations MIAD005 16113299 12 39988, 0031 18 IX. Builder's Risk Causes of Loss: All Risk of Direct Physical Damage or Loss Valuation: Replacement Cost Deductibles: 5% Wind, Hail, $100,000 AOP Coverage Extensions Included City of Miami listed as an additional insured and loss payee X. Flood insurance, FEMA I NFIP Building $500,000 Contents $250,000 Deductible $50,000 The above policies shall provide the City of Miami with written notice of cancellation or material change from the insurer not less than (30) days prior to any such cancellation or material change, or in accordance to policy provisions. Companies authorized to do business in the State of Florida, with the following qualifications, shall issue all insurance policies required above: The company must be rated no less than "A-" as to management, and no less than "Class V" as to Financial Strength, by the latest edition of Best's Insurance Guide, published by A.M. Best Company, Oldwick, New Jersey, or its equivalent. All policies and /or certificates of insurance are subject to review and verification by Risk Management prior to insurance approval. M1A100516113299 12 39988, 0031 19 EXHIBIT B CAPITAL IMPROVEMENT RESERVE FUND CALENDAR Anniversary Date of Hotel Stabilization Date Accrual Amount Due Amount 1st $200,000.00 2nd $204,000.00 3rd $208,080.00 4th $212,241.60 5th $216,486.43 6th $220,816.16 7th $225,232.48 8th $229,737.13 9th $234,331.88 1 pth $239,018.51 11 th $243,798.88 12th $248,674.86 13th $253,648,36 14th $258,721.33 15th $263,895..74 16th $269,17367 17th $274,557.14 18th $280,048.28 19th $285,649.25 20th $291,362.23 21 st $297,189.48 22nd $303,133.27 23rd $309,195,93 24th $315,379.85 25th $321,687,45 $6,406,059.94 26th $328,121.20 27th $334,683.62 28.th 341,377.30 29th $348,204,84 30th ,355,168.94 31st $362,272.32 32nd $369,517.76 33rd $376,908.12 34th $384,446,28 35th $392,135,21 36th $399,977.91 37th $407,977.47 MIADOCS 16113299 12 39988. 0031 20 38th $416,137.02 39th $424,459.76 40th $432,948.95 41st $441,607.93 42nd $450,440,09 43rd $459,448.89 44th $468,637.87 45th $478,010.63 46th $487,570.84 47th $497,322.,26 48th $507,268.70 49th $5171414.08 50th $527,762.36 $10,609,820,35 51st $538,317.61 52nd $549,083.96 53rd $560,066.64 54th $571,266.95 55th $582,692.29 66th $594,346.13 57th $666,233.06 58th $618t357.72 59th $630,724.87 60th $643,339.37 61 st $656,206.16 62nd $666,33.0,28 63rd $682,716.89 64th $696,371.22 65th $710,298.65 66th $724,504.62 67th $738,994.71 68th $753,774,61 69th $768,850.10 70th $784,227.10 71 st $799,911.64 72nd $815,909,88 73rd $832,228.08 74th $848,872.64 75th $866,850.09 $17,242,474.26 MIADOCS 16113299 12 39988. 9031 21 Effective Date of Amendment: U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT FIRST AMENDMENT TO THE ASSUMPTION OF LOAN GUARANTEE TEE ASSISTANCE LIABILITY AND PLEDGE AGREEMENT UNDER SECTION 108 OF HOUSING AND COMMUNITY DEVELOPMENT ACT OF 1937, AS AMENDED, 42 U.S.C. 95308. NOV 171011 THIS FIRST AMENDMENT TO THE ASSUMPTION OF LOAN GUARANTEE ASSISTANCE LIABILITY AND PLEDGE AGREEMENT (the 'Amendment") is entered into effective as of the Effective Date written above, by MIAMI-DADE COUNTY, FLORIDA, as Borrower ("Borrower"), the CITY OF MIAMI, FLORIDA as Assurnptor ("Assumptor"), and the SECRETARY OF HOUSING AND URBAN DEVELOPMENT as guarantor ("Guarantor") (hereinafter the three parties together shall be referred to as the "Parties") for the Guarantee made pursuant to Section 108 of title 1 of the Housing and Community Development Act of 1974, as amended, and 24 CFR Part 570, Subpart M, of the promissory note issued on June 14, 2000, and numbered B-98-UC-12-0006 in the original principal amount of $25,000,000.00 (the "Old Note") and for the new promissory note that shall be issued following defeasance of the Old Note and in substitution for the Old Note and shall have the same note number as the Old Note, the same maturity date as the Old Note, but in the new principal amount of $15,560,000 (the "New Note", a copy of which is attached hereto as Exhibit A and incorporated hereby). 1. RECITALS. (a) On June 14, 2000, Borrower and Guarantor entered into a Contract for Loan Guarantee Assistance Under Section 108 of the Housing and Community Development Act of 1974, as Annended, 42 U.S.C. § 5308 for Series HUD 2000-A Certificates (the "Old Contract"). The Old Contract incorporated the Old Note. (b) The Parties subsequently entered into the Assumption of Loan Guarantee Assistance Liability and Pledge Agreement Under Section 108 of Housing and Community Development Act of 1937, as amended, 42 U.S.C. 95308 (the "Assumption Agreement") (attached as Exhibit B hereto and incorporated hereby) dated May 13, 2008. That Assumption Agreement set forth the liabilities, obligations, benefits, and duties on the part of the Parties as to the Old Note and any amended note or note that may be issued in substitution for such note and having the same note number. (c) The Parties have an opportunity to defease the Old Note, which has a remaining principal balance of $15,560,000.00, and to substitute for the Old Note a New Note in the amount of $1.5,560,000.00. The Parties shall each benefit from the defeasance of the Old Note and the substitution with the New Note as interest rates have declined thus creating an opportunity for considerable financial savings by the Parties. (d) In order to facilitate the defeasance of the Old Note and the substitution • with the New Note, Borrower and Guarantor shall enter into a new Contract for Loan Guarantee 1 Assistance Under Section. 108 of the Mousing and Community Development Act of 1974, as Amended, 42 U.S.C. § 5308 for Series HUD 2011-A Certificates (the "New Contract"), which shall replace the Old Contract. (e) The parties desire to carry forward all the liabilities, obligations, benefits, and duties set forth in the Assumption Agreement as to the Old Note and the Old Contract and to apply them and ratify them in an identical manner to the New Note and New Contract, with the following amendments set forth below. NOW, THEREFORE, in consideration of the premises, and of the mutual covenants and agreerents set forth below, the Parties agree as follows: 1. All the liabilities, obligations, benefits, and duties of the Parties set fbrth in the Assumption Agreement as to the Old Note and the Old Contract shall now apply in an identical manner to the New Note and New Contract, 2. Section 12 Remedial Actions of the Assumption Agreement shall be amended to add at the end thereof a new Subsection (g) to read as follows: "(g) Notwithstanding any of the foregoing provisions related to Section 11 Defaults above, the Secretary may, in the Secretary's sole discretion, (1) waive in writing a Default regarding any failure to punctually and properly perform, observe, and comply with any covenant, agreement, or condition applicable to the Borrower or applicable to the Assumptor under this Agreement, and/or (2) provide a reasonable time for a cure period related to such Default under the applicable circumstances. Any such waiver and/or cure by the Secretary shall be in writing and shall be effective only to the extent specifically set forth in such writing. Any such Default so waived shall be deemed to be cured and not continuing, if cured within the stated reasonable time for a cure period under the applicable circumstances, but no such waiver shall extend to any other or subsequent Default or impair any right(s) consequent thereto." 3.. The Parties further agree that the costs of the refinancing in connection with the New Note shall be paid to the Guarantor's Trustee in the following pro-rata manner {a) twenty percent (20%) by the 1orrower, and (b) eighty percent (80%) by the Assumptor, with both the Borrower and the Assumptor having respective rig its to reimbursement of such refinancing costs, if applicable, from any third -party (whether under the Participation Agreement referenced in the original Assumption Agreement or otherwise) which ultimately benefits from the reduction of costs under such refinancing. 4. The Parties agree to execute any future agreements, amendments or estoppels necessary to fulfill the purposes of this Amendment. 5. Other than the amendments set forth above and the substitution of the Old Note and Old Contract with the New Note and New Contract, no other changes are made by this Amendment to the Assumption Agreement, and the Parties agree that the Assumption Agreement is in full force and effect and that the Parties shall continue to abide by the terms of the Assumption Agreement. IN WITNESS WHEREOF, the undersigned, as respective authorized officials on behalf of the Guarantor, the Borrower and the Assuinptor, have caused this Amendment to be executed as of the Effective Date first above written. APPROVED AS TO FORM AND LEG 14U/F IENCY: Nam Title: Date: ATTES By: Priscilla A. Thompson, City Clerk Date: Appry ec/ Insements: By: Calvin Ellis, isk �anageinent Director Date: /%�/ll MTAMI DADE COUNTY, FLORIDA BORR BY: Name: Title: Date: CITY OF MIAMI, A municipal corporation of the State of Florida rt Zy ► arttine . -ty. Manager Date: jO — +� Approved as to Form and Correctness: Julie O. Biru., City Attorney Date: r - 41 By: SECRETARY OF HOUSING AND URB• i ELOP. E By: Nai Yolanda Chavez Tit e: Deputy Assistant Secretor for Grant Programs Date: NOV 17 2011 EXHIBIT «A" COPY OF NEW NOTE B-98-UC-12-0006 IN THE PRINCIPAL AMOUNT OF $15,560,000 EFFECTIVE DATE: 4 Fixed Rate Note 2Q11-A 2031 DEFEASrNG $-16-11 U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT Fixed Rate Note for Series 2011-A Certificates BORROWER; The Miami -Dade County, FL NOTE NO. B-98-UC-12-0006 REGISTERED HOLDER: DATE: THE BANK OF NEW YORK MELLON AGGREGATE PRINCIPAL AMOUNT: $15,560,000 For value received, the undersigned, the Miarni-Dade County (the "Borrower," which term includes any successors or assigns), a public entity or agency organized and existing under the laws of the State (or Commonwealth, if applicable) of Florida, promises to pay to the order of THE DANK OF NEW YORK MELLON, as Registered Holder (tile "Holder," which term includes any successors or assigns), the Principal Amounts set forth on the attached Schedule P&1 as of each applicable Principal Due Date set forth therein, together with interest on such unpaid Principal Amounts at the rates applicable thereto as specified on such attached Schedule P&L Interest shall be calculated and payments shall be made in the manner set forth below. The Holder is acting hereunder on behalf ofa trust (the "Trust") created pursuant to a Trust Agreement by and, between the Secretary of Housing and Urban Development (the "Secretary") and Chemical Bank (now known as The Bank of New York Mellon), as trustee (the "Trustee"), dated as of January 1, 1995, as amended (the "Trust Agreement"), as supplemented by the applicable Supplement to the Trust Agreement, by and.between the Secretary and the Trustee, A. Principal and Interest Interest on a Principal Amount of this Note that is due as of a given date specified on the Schedule P&I attached hereto (such date, the "Principal Due Date" for such Principal Amount) shall accrue at the per annum rate specified on such Schedule P&I from (and including) the date hereof to (but excluding) such Principal Due Date or, if applicable, to the applicable Interest Due Date on which an Optional Redemption (as defined below) occurs. Tlie aggregate of the interest amounts accrued on the entire unpaid Principal Amount of this Note shall be due semiannually as of February 1 and August 1 of each year (each, an "Interest Due Date"), commencing on February 1, 2012, until the Aggregate Principal Amount listed on the Schedule P&I attached to this Note is paid in full. Interest shall be calculated on the basis of a 3 60-day year consisting of twelve 30-day months. B. Optional Redemption Certain Principal Amounts indicated as being eligible for Optional Redemption on the Schedule P&I hereto may be paid, in whole or in part, at the option of the Borrower as of any Interest Due Date on or after the date specified in such Schedule (an "Optional Redemption"). In order to elect an Optional Redemption of a redeemable Principal Amount, the Borrower shall give notice of its intention to redeem a Principal Amount to the Trustee and the Secretary not less than. 60 days nor more than 90 days prior to the Interest Due Date as of which the Borrower intends to redeem. the Principal Amount. The Trustee shall apply any payments received in respect of Optional Redemptions in accordance with written instructions of the Borrower, as approved by the Secretary, Principal Amounts that are not indicated as being eligible for Optional Redemption on such Schedule may not be prepaid. C. Additional Definitions For purposes of this Note, the following terms shall be defined as follows: "Business Day" shall mean a day on which banking institutions in New York, New York, are not required or authorized to remain closed and on which the Federal Reserve Bank and the New York Stock Exchange are not closed. If any payment (including a payment by the Secretary) is required to be made on a day that is not a Business Day, then payment shall be made on the next Business Day. "Contract" shall mean the Contract for Loan Guarantee Assistance, and any amendments thereto, between the Secretary and the .Borrower, the designated public entity named therein (if applicable), or the State named therein (if applicable), which refers to and incorporates this Note by the number hereof. D. Borrower's Timely Payment to Trustee Notwithstanding anything contained in this Note, the Borrower, in accordance with the Contract, shall be required to make all payments of interest and principal, including any Optional Redemption payments, directly to the Trustee on the seventh Business Day prior to the appropriate Interest Due Date, Principal Due Date or date of Optional Redemption, as applicable. E. Interest an Late Payments If a payment of principal or interest herein provided for has not been duly received by the Holder from either the Borrower or. the Secretary by the close of business on the applicable Interest Due Date or Principal Due Date, interest shall accrue on the amount of such payment at the applicable interest rate or rates payable on this Note, from the relevant due date until the date such payment is made. Nothing in the immediately preceding sentence shall be construed as permitting or implying that the Borrower may, without the written consent of the Folder and the Secretary, modify, extend, alter or affect in any manner whatsoever the right of the Holder timely to receive any and all payments of principal and interest specified in this Note. 2 F. Applicability of Fiscal Agency Agreement and Trust Agreement This Note and payments made hereunder shall be administered pursuant to the terms of the Trust Agreement and are subject to such agreement. The ternis and provisions of the Trust Agreement, insofar as they affect the rights, duties and obligations of the Holder and/or the Borrower, are hereby incorporated herein and form a part of this Note. Capitalized terms not defined in, this Note shall have the meanings ascribed to them in Trust Agreement. The Amended and Restated Master Fiscal Agency Agreement dated as of May 17, 2000, between the Secretary and The Chase Manhattan Bank (now known as The Bank of New York Mellon), as Fiscal Agent (the "Fiscal Agency Agreement") provides for JPMorgan Chase Bank, acting as Fiscal Agent to perform certain duties, including the duties of registrar for this Note until this Note is canceled or a new registrar appointed in accordance with the Fiscal Agency Agreement. The -Trust Agreement provides for the Trustee to perform certain duties, including the duties of paying agent and collection agent for this Note until a new Trustee is appointed in accordance with the Trust Agreement. This Note may be surrendered to the Fiscal Agent for registration of transfer or exchange, as provided in the Fiscal Agency Agreement. The Fiscal Agent and the Trustee shall permit reasonable inspection to be made of a copy of the Fiscal Agency Agreement or Trust Agreement kept on file at its corporate trust office. Neither the Fiscal Agency Agreement nor the Trust Agreement shall change the Borrower's payment obligations under this Note. G. Applicabilit pf Contract and Secretary's Guarantee This Note evidences indebtedness incurred pursuant to and in accordance with the Contract and pursuant to Section 108 of Title I of the Housing and Community Development Act of 1974, as amended (42 U.S.C. § 5308) (the "HCD Act"), This Note is subject to the teens and provisions of the Contract, to which Contract reference is hereby made for a statement of said terms and provisions and. for a description of the collateral security for this Note. The payment of principal on the applicable Principal Due Dates and of interest on the applicable Interest Due Dates under this Note is unconditionally guaranteed. bythe Secretary to the Holder through a guarantee (the "Guarantee"). Execution of the Secretary's Guarantee is required before this Note is effective, and such Guarantee shall be issued pursuant to and in accordance with the term of the Contract and Section 108 of the HCD Act. H. Default A default under this Note shall occur upon failure by the Borrower to pay principal or interest on this Note when due to the Trustee hereunder. On any Interest Due Date on or after the first permissible Optional Redemption Date, if either (i) a Borrower defaults on the payment of any interest or Principal Amount when due or (ii) the Secretary gives notice of a final decision to declare the Borrower in default pursuant to the following paragraph, then the Secretary may, but is not obligated to, make an acceleration payment to the Trustee equal to the Aggregate Principal Amount of the Note, together with accrued and unpaid interest thereon to such Interest Due Date. The Secretary shall give notice of such payment on the fourteenth Business Day preceding such Interest Due Date and shall make such payment on the seventh Business Day preceding such Interest Due Date. In the event that any such acceleration payment is made from sources other 3 than funds pledged by the Borrower as security under the Contract (or other Borrower funds), the amounts paid on behalf of the Borrower shall be deemed to be immediately due and payable to the Secretary. Nothing in this paragraph shall be construed as permitting or implying that the Borrower may, without the written consent of the Holder and the Secretary, modify, extend, alter or affect in any manner whatsoever the right of the Holder timely to receive any and all payments of principal and interest specified in this Note. In addition, the Secretary may declare the Borrower in default under this Note if the Secretary makes a final decision in accordance with the provisions of 24 CFR § 570.913 (or any successor regulation thereof), including requirements for reasonable notice and opportunity for hearing, that the Bor ower has failed to comply substantially with Title I of the HCD Act. Following the giving of such reasonable notice, the Secretary may take the remedial actions specified as available in the relevant provisions of the Contract pending the Secretary's final decision. I. Holder's Reliance on Guarantee Following a default by the Borrower under the terms of this Note, the Holder agrees to rely wholly and exclusively for repayment of this Note upon the Guarantee. The enforcement of any instruments or agreements securing or otherwise related to this Note shall be the sole responsibility of the Secretary, and the Holder shall not be responsible far the preparation, contents or adrninistration of such instruments and agreements, or for any actions taken in connection with such instruments and agreement. The Holder, to the extent it is legally able to do so, shall bind or cause to be bound its successors and assigns to all limitations imposed upon the Holder by this Note. J. Amendment This Note may only be amended with the prior written consent of the Secretary and the Borrower. No such amendment shall reduce, without the prior written consent of the Holder of this Note, in any manner the amount of, or delay the timing of, payments required to be received on this Note by the Holder or Trustee, including Guarantee Payments. K. Waivers The Borrower hereby waives any requirement for presentment, protest or other demand or notice with respect to this Note, The Borrower hereby waives notice of default and opportunity for hearing for any failure to rnake a payment when due. L. Delivery and Effective Date This Note is deemed issued, executed, and delivered on behalf of the Borrower by its authorized official as an obligation guaranteed by the Secretary pursuant to Section 108 of the HCD Act, effective as of the date of the Secretary's Guarantee. 4 M. Borrower Specific Provisions Proceeds of this Note shall be used solely for the purpose of refinancing through defeasance funds advanced under previous Note(s) having the same Note number. [Remainder of Page Intentionally Left Blank] 5 THE UNDERSIGNED, as an authorized official of the Borrower, has executed and delivered this Note. Miami -Dade County, FL BY: 6 EORR WER /0/4A/41) (S " n tu: Edward Marquez (Name) Deputy Mayor (Title) SCHEDULE P&I Note No. B-98-11C- 12-0006 Principal Amount Principal Interest Rate Optional Redemption Available Due Date YES NO $ 1,945,000 August 1, 2012 X $ 1,945,000 August 1, 2013 X $ 1,945,000 August 1, 2014 X $ I,945,000 August 1, 2015 X $ 1,945,000 August 1, 2016 X $ 1,945,000 August I, 2017 X $ 1,945,000 August 1, 2018 X $ 1,045,000 August 1, 2019 X $ August 1, 2020 X $ August 1, 2021 X $ August 1, 2022 X $ August I, 2023 X $ August I, 2024 X $ August 1, 2025 X $ August 1, 2026 X $ August 1, 2027 X $ August 1, 2028 X $ August I, 2029 X $ August 1, 2030 X $ August I, 2031 X $15,560,000 = Aggregate Principal Amount Principal Amounts due on or after August 1, 2022, for which Optional Redemption is available may be redeemed, subject to the terms contained herein and in the Trust Agreement, on any Interest Due Date on or after August 1, 2021, EXHIBIT "B" ASSUMPTION OF LOAN GUARANTEE ASSISTANCE LIABILITY AND PLEDGE AGREEMENT UNDER SECTION 108 OF HOUSING AND COMMUNITY DEVELOPMENT ACT OF 1937, AS AMENDED, 42 U.S.C. 95308 Dated May 13, 2008 5 Attachment 2 . Page 1 of 14 U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT ASSUMPTION OF LOAN GUARANTEE ASSISTANCE LIABILITY AND PLEDGE AGREEMENT UNDER SECTION 108 OF THE HOUSING AND COMMUNITY DEVELOPMENT ACT OF 1974, AS AMENDED, 42 U.S.C. 95308 Date of Agreement: MAY j32008 This Assumption of Loan Guarantee Assistance Liability and Pledge Agreerinent ("Agreement") is entered into by Miami -Dade County, Florida, as Borrower (the "Borrower"), the City of Miami, Florida, as assumptor (the "Assumptor"), and the Secretary of Housing and Urban Development ("Secretary"), as guarantor for the Guarantee made pursuant to section 108 ("Section 108") cf title 1 of the Housing and Community Development Act of 1974, as amended (the "Act") and 24 CFR Part 570, Subpart M, of the promissory note issued on June 14, 2000, and numbered B-98-UC-12- 0006, in the original Aggregate Principal Amount of $25,000.000, and any amended note or note that may be issued in substitution for such note and having the same note number (the "Note"). Such Aggregate Principal Amount was paid or credited to the account of the Borrower as of June 14, .200E (the "Public Offering Date"), and all amounts so paid or credited are collectively referred to herein as the "Guaranteed Loan Funds." The Note includes the Fiscal Agency Agreement and the Trust Agreement as defined in the Note. Terms used in this Agreement with initial capital letters and not otherwise defined in the text hereof shall ;gar,. the respecti re ,neanings given thereto in the Note. The Fiscal Agency Agreement and the Trust .Agreement are sometimes collectively referred to herein as the "Fiscal Agency/Trust Agreements," and the Fiscal Agent and the Trustee respectively are sometimes collectively referred to as the "Fiscal Agent/Trustee." RECITALS A. The Note. On the Public Offering Date, trust certificates backed by the Note and similar notes issued by other Section 108 borrowers, denominated "Section 108 Government Guaranteed Participation Certificates Series HUD 2000-A" (the "Certificates"), were purchased far a purchase price of the full aggregate principal amounts thereof at interest rates determined by the Secretary and the. initial purchasers, which purchasers were underwriters selected by the Secretary (the "Underwriters"). The Note is payable to the Trustee as Registered Holder on behalf of the Beneficial Owners of the Certificates. The interest rate at which the trust certificate of a specified maturity was sold to the Underwriters was the interest rate inserted on the Public Offering Date in Schedule P&I of the Note for the Principal Amount of corresponding maturity. After the Public Offering Date, the Borrower has agreed and the Assumptor hereby acknowledges that the Trustee pursuant to the Trust Agreement will maintain the books and records of all payments on the Note and all -Principal Amounts and interest rates on such Principal Amounts. The Note and the Secretary's Note Guarantee as held by the Trustee and the Secretary's Certificate Guarantees arc not amended and are not affected by this Agreement. Atiactmient 2 Page 2 of 14 B. The Contract. Effective as of the Public Offering Date, the Borrower and the Secretary entered into a Contract for Loan Guarantee Assistance (the "Contract") with respect to the temporary deposit and the use of the Guaranteed Loan Funds for eligible activities, the terms ofthe Secretary's Guarantee, the security far the Secretary's Guarantee, the establishment of a Loan Guarantee Repayment Account and any other matter covered by the Contract. C. The Participation Agreement. Contemporaneously herewith, the Borrower and the Assurnptor have entered into a Participation Agreement with respect to the "Loan" as defined therein, which is the same loan described in paragraph I 5(b) of the Contract. Such loan was made with Guaranteed Loan Funds to the "Obligor," is evidenced by the "Obligor Loan Agreement" and the "Obligor Note," and is secured by the "Collateral", each as also described in paragraph 15 of the Contract. Such loan shall be referred to herein as the "Obligor Loan." Pursuant to the Participation Agreement, the Assurnptor purchased eighty percent (80%) of the Borrower's interest in the Obligor Loan and the Collateral therefore, and the Borrower retained a twenty percent (20%) interest in the Obligor Loan and the Collateral therefore. AGREEMENT The Assumptor hereby agrees to assume eighty percent (S0%) (the "Assumptor's Pro Rata Share") of the Borrower's liability under the Contract for repayment of the principal and inter est of the Note, the Borrower agrees to remain liable to repay twenty percent (20%) (i:,e. 73orrower's F,o Rata Share") of the principal and interest on the Note, and the parties hereby agree to the rnore specific understandings, undertakings, and amendments to the Contract set forth below. The paragraph numbers in this Agreement correspond to the paragraph numbers in the Contract. This Agreement amends and supersedes the corresponding provisions of the Contract, except as otherwise provided in this Agreement. 1. Receipt, Deposit and Use of Guaranteed Loan Funds. The Borrower has received and disbursed the entire proceeds of the Note to the Obligor for the Obligor Loan and has submittal all reports to FIUD as required under paragraph I of the Contract. No funds remain in the Guaranteed Loan Funds or the Guaranteed Loan Funds lnvestrent Accounts, and these Accounts have been closed. 2. Payments .Due on Note. Using any available funds in the Loan Repayment Account under paragraph 6 of this Agreement, the Borrower shall continue to pay to the Fiscal Agent/Trustee, as collection agent for the Note, all amounts due pursuant to the terms of the Note. In accordance with the Note and the Fiscal Agency/Trust Agreements, payment shall be made by 3:00 P.M. {Near York City time) on the seventh Business Day (the "Note Payment Date") preceding the relevant Interest Due Date or Principal Due Date (each as defined in the Note). if any Note Payment Date falls on a day that is not a Business Day, then the required payment shall be made on the next Business Day. Payments to the Fiscal Agcnt/Frustee may he made by check or wire transfer. In the event of a shortage in Attachment 2 Page 3 of 14 funds available in the Loan Repayment Account when payment is due to the Fiscal Agerit,Trustee under the Contract, the Borrower and the Assumptor hereby agree to pay the Bon on cr.s Fro Rata Share and Assuiiiptor's Pro Rata Share, respectively, of zhe, shortage needed to make the payment. In such event, the Borrower will promptly notify the Assumptor of the Assumptor's Pro Rata Share of the payment due, and the Assumptor hereby agrees promptly to pay such amount to the Borrower by wire transfer to the Loan Repayment Account maintained by the I'3ttrrower under paragraph 6 of the Contract and this Agreernent. 3. Selection of New Fiscal Agent or Trustee. The Secretary shall select a new Fiscal Agent or Trustee if the Fiscal Agent or Trustee resigns or is removed by the Secretary. The Borrower and the Assumptor hereby consent in advance to any such selection and to any changes in the Fiscal Agency/Trust Agreements agreed to by any Fiscal Agent or Trustee and the Secretary, subject to paragraph 4(c) of this Agreement. 4. Payments Due Fiscal Agent or Trustee; Documents to the Secretary. (a) The Borrower agrees to pay the Borrower's Pro Rata Share and the Assumptor agrees to pay the Assurnptor's Pro Rata Share of the cost of reimbursement and/or compensation of the Trustee pursuant to the Trust Agreement, including Sections 3.11 and 7.01 thereof, to the extent the Borrower is notified of any such costs after the date of this Agreement, If the Borrower is so notified, the Borrower agrees to promptly notify the Assumptor of tlae Assumptor's Pro Rata Share. (b) The Assumptor shall submit to the Secretary, concurrently with execution and delivery of this Agreement, an opinion acceptable to the Secretary from the Assumptor's counsel to the effect that: (i) the governing body of the Assumptor has authorized by resolution or ordinance, in accordance with applicable State and local law, the execution of this Agreement; (ii) this Agreement is a valid, binding, and enforceable obligation of the Borrower; (iii) the pledge of funds pursuant to 24 CFR §570.705(b)(2) and paragraph 5(a) of this Agreement is valid and binding; and (iv) there is no outstanding Iitigation that will affect the validity of this Agreement. (c) The undertakings in paragraphs 3 and 4 of this Agreement are expressly subject to the requirement that the Fiscal Agency/Mist Agreements shall in no event require payment of fees or charges, reimbursement of expenses, or any indemnification by the Borrower or the Assumptor from any source other thanfunds pledged pursuant to paragraphs 5 or 15 of this Agreement. 5. Security. The Borrower and the Assumptor hereby pledge as security for repayment of their respective pro rata share of the Note and such other charges as may be authorized in the Contract or this Agreement, in their respective pro rata shares hereunder, the following: (a) All allocations or grants which have been made or for which the Borrower or the Assumptor, as applicable, may become eligible under Section 106 of the Act., as well as any grants which are or may become available to the Borrower or the Assumptor, as applicable, pursuant to Section. 1C3(q). A[i{ chmenl page 4of14 (h) Program income, as defined at 24 CFR 570.500(a)(or any successor regulation), directly generated from the use of the Guaranteed Loan Funds. (c) Other security as described in paragraph 15, _et seq., of the Contract or this Agreement. (d) All proceeds (including insurance and condemnation proceeds) from any of the foregoing, (e) All funds or investments in the accounts established pursuant to paragraphs 1 and 6 of this Agreement, d. Loan Repayment Account, (a) All amounts pledged pursuant to paragraphs 5(b), 5(c), and 5(d) of this Agreement, and all amounts required to be paid by the Borrower and the Assumptor under Section 2 hereof, shall be deposited immediately upon receipt in a separate identifiable custodial account maintained by the Borrower (the "Loan Repayment Account") with a financial institution whose deposits or accounts are 'Federally insured. The Loan Repayment Account has been established and designated the form document entitled "Letter Agreement for Section 108 Loan Guarantee Program Custodial Account" (Attachment 1 to the Contract), and such account shall be continuously maintained for deposit of all such pledged funds. Borrower shall make withdrawals from said account only for the purpose of paying interest and principal due on the Note (including the purchase of Government Obligations for defeasance in accordance with paragraph 10 hereof), fur payment of any other obligation of the Borrower and the Assumptor under this Agreement or the Fiscal Agency,Trust Agree,uearts, in their respective pro rata shares hereunder, or for the temporary investment of funds pursuant to this paragraph, until final payment and discharge of the indebtedness evidenced by the Note, unless otherwise expressly authorized by the Secretary in writing. Such temporary investment of funds shall be required within three Business bays after the balance of deposited funds exceeds the amount of the Federal deposit insurance on the Loan Repayment Account_ At that time, any balance of funds in the Loan Repayment Account exceeding such insurance coverage shall be fully (100%) and continuously invested in Government obligations, as defined in paragraph 1 0 hereof. All temporary investments, whether or not required as above:, shall be limited to Government Obligations having maturities that are consistent with cash requirements for payment of principal and interest as required under the Note. In no event shall the maturities of such investments exceed one year. Ail such investments shall be held in trust for the benefit of the Secretary by the above financial institution in an account (the "Loan Repayment investment. Account") that has been established and designated pursuant the form document entitled "Letter Agreement for Section 108 Loan Guarantee Program Custodial Investment Account" (Attachment 2 to the Contract), which account shall be maintained for all Government Obligations purchased with funds from the Loan Repayment Account. All proceeds and income derived from such investments shall be returned to the Loan Repayment Account. As of the date of this Agreement, the Borrower and the Assumptor shall be deemed to share ownership of the Loan Repayment Account and the Loan Repayment Investment Account, in accordance with their respective pro rata shares hereunder, although the Auachmeni 2 Page 5 of 14 Borrower shall continue to maintain such accounts in accordance with this Agreement and with Borrower's obligations to Assumptor under the Participation Agreement.. (b) Borrower shall by the fifteenth day of each month, provide the Secretary and the Assumptor with a written statement showing the balance of funds in the Loan Repayment Account and the deposits and withdrawals of all funds in such account during the preceding calendar month and a statement identifying the obligations and their assignments in the Loan Repayment Investment Account. (c) Upon the Secretary giving notice that the Borrower or thc Assumptor, or bath of them if applicable, is in Default under this Agreement or the Note, all right, title, and interest of the Borrower or the Assu.tnptor, or both of them, as applicable, in and to the Loan Repayment and Loan Repayment Investment Accounts shall immediately vest in the Secretary for use in making payment on the Note, purchase of Government obligations in accordance with paragraph 10, or payment of any other obligation of the Borrower under this Agreement or the Fiscal Agency/Trust Agreements. 7, Use of CDBG Funds for Repayment. Any funds available to the Borrower or the Assumptor under Section 1 Ub of the Act (including program income derived therefrom) are authorized to be used by the Borrower or the Assumptor, in accordance with their respective pro rata shares under this Agreement, for payments due on the Not; Optional Redernption (as defined in the Note), payment of any other obligation of the Borrower under this Agreeil-,c..t or the Fiscal Agency/Trust Agreements, or the purchase of Government obix6a::1ns in accordance with paragraph 10. Unless otherwise specifically provided herein or unless otherwise expressly authorized by the Secretary in writing, the Borrower shall substantially disburse funds available in the Loan Repayment or the Loan Repayment Investment Accounts before funds from grants under Section 106 of the Act are withdrawn from the U.S. Treasury for such purposes by either the Borrower or the Assumptor. B.Secretary's Right to Restrict Use of CDBG Funds . to Repayment Upon a determination by the Secretary that payments required by paragraph 2 and/or paragraph 4 of this Agreement are unlikely to be made as required in accordance with their respective pro rata shares hereunder by either the Borrower or the Assumptor, or both, the Secretary may give the Borrower and/or the Assumptor, as applicable, notice that the availability to the Borrower and/or the Assumptor, as specified in such notice, of funds pledged under paragraph 5(a) of' this Agreement for purposes other than satisfaction of the pledge is being restricted. This restriction shall be in an amount estimated by the Secretary to be sufficient to ensure that thc payments referred to in paragraph 2 and/or paragraph 4 hereof are made when due by the Borrower and/or the Assumptor, as applicable. With respect to the Borrower and/or the Assumptor as applicable, this restriction may be given effect by conditioning the restricted amounts to prohibit disbursement for purposes other than satisfaction of the pledge at the time such restricted funds are approved as grants, by limiting the restricted party's ability to draw down or expend the restricted funds for other purposes, and by disapproving payment requests submitted with respect to such grants far purposes other than satisfaction of.The pledge. 3� Attachment Page hof14 9.Secretary's Right to Use Pledged Funds for Repayment. The Secretary may use funds pledged under paragraph 5(a) of this Agreement or funds restricted under grants'pursuant to paragraph 8 of this Agreement to make any payment required of the 'Borrower or the Assumptor under paragraph 2 and/or paragraph 4, if such payment has not been timely made by the Borrower or the Assumptor, as applicable. IODefeasance. For purposes of this Agreement, the Note shall be deemed to have been paid (defeased) to the extent that there shall have been deposited with the Trustee either moneys or Government Obligations (defined below), which in the sole determination of the Secretary, mature and bear interest at times and in amounts sufficient, together with any other moneys on deposit with the Trustee for such purpose, to pay when due the principal and interest to become due on the Note. The Aggregate Principal Amount of the Note or any unpaid Principal Amount may be so defeased, in whole or in part, as of any Interest Due Date, or any other Business Day acceptable to HUD, the Borrower, and the Assumptor. In accordance with the Note and the Trust Agreement, the Borrower shall give timely notice and written. instructions to the Secretary and the Trustee concerning any principal amounts proposed to be defeased, including any Optional Redemptions proposed, which instructions shall be approved by the Secretary. If the unpaid Aggregate Principal Amount of the Note ,guaranteed pursuant to this Contract shall be defeased and deemed to have been paid in full, then the Borrower and the Assumptor shall be released from all agreements, covenants, and further obligations under the Note. "Government Obligation" means a direct obligation of, or any obligation for which the full and timely payment of principal and interest is guaranteed by, the United States of America, including Lof not limitta i to, United States Treasury Certificates of Indebtedness, Notes and Bonds - State and Local Goverranent Series or certificates of ownership of the principal of or interest on direct obligations of, or obligations unconditionally guaranteed by, the United States of America, which obligations are held in trust by a commercial bank which is a raaemher of the Federal Reserve System and has capital and surplus (exclusive of undivided profits) its excess of $100,000,000. 11. Defaults. (a) A Default under the Note and this Agreement shall occur upon the Borrower's failure to; (i) pay when due an installment of principal or interest on the Note; or (ii) punctually and properly perform, observe, and comply with any covenant, agreement, or condition of the Borrower contained in: (A) this Agreement, (B) any security agreement, deed of trust, mortgage, assignment, Guarantee, or other Agee -talent securing payment of indebtedness evidenced by the Note, or (C) any future amendments, modifications, restatements, renewals, or extensions of any such documents. (b) The Borrower and the Assumptor each waive notice of Default and opportunity tilt hearing with respect to a Default under paragraph 11(a). (c) In addition to Defaults under paragraph I I (a), the Secretary may declare the Note in Default if -the Secretary makes a final decision in accordance with the provisions of section 111 of the Act and 24 CIF 070.913 (or any successor provisions), including Attachment 2 Page 7oft4 requirements for reasonable notice and opportunity for hearing, that either the Borrower or the Assumptor, or both have failed to comply substantially with title I of the Act. Notwithstanding any other provision, following the giving of such reasonable notice to either such party, or both, the Secretary niay withhold the making of eorrunitments to guarantee or the guarantee of any or all obligations not yet guaranteed in accordance with outstanding commitments on behalf of the Borrower or the Assumptor, or both, as applicable. In addition, in the event that t.utice of Defnuit has been given to the Borrower under ads paragraph 1 1(c), the Secretary may, in the Secretary's sole discretion pending the Secretary's final decision, direct the Borrower's financial institution to: refuse to honor any instruments drawn upon, or withdrawals from, the Loan Repayment Account initiated by the Borrower, and/or refuse to release obligations and assignments by the Borrower from the Loan Repayment Investment Account. (d) A Default by the Borrower under paragraph 11(a) shall be deemed a default by the Assumptor as well under this Agreement. Such Default shall entitle the Secretary to exercise remedial actions in accordance with their respective pro rata shares of liability hereunder against funds respectively pledged by the Borrower and the Assumptor under this Agreement. (e) A Default limited to the Assumptor under this Agreement shall occur upon failure by the Assumptor to: (i) pay when due any amount owing under paragraph 2 or 4 of this Agreement; or (ii) punctually and properly perform, observe, and comply with any covenant, agreement, or condition applicable to the Assumptor in this Agreement. A Default limited to the Assumptor under- this paragraph 11(e) shall entitle the Secretary to exercise remedial actions only against funds pledged by the Asssumptor under this Agreement. 1?, Remedial Actions, Upon a Default or declaration of Default under this Agreement, the Secretary may, in the Secretary's sole discretion, take any or all of the following remedial actions: (a) With any funds or security pledged under this Agreement, the Secretary may (i) continue to make payments due on the Note, (ii) make an acceleration payment with respect to the principal amount of the Note subject to Optional Redemption as provided in Section 13 of the Note, (iii) purchase Government Obligations in accordance with paragraph 10 of this Agreement, (iv) pay any interest due for late payment as provided in the Note, this Agreement, or the Fiscal Agency/Trust Agreements, (v) pay any other obligation of the Borrower and/or the Assumptor, as applicable, under this Agreement or the Fiscal Agency/Trust Agreements, and/or (vi) pay any reasonable expenses ' incurred by the Secretary or the Fiscal Agent/Trustee as result of the Default. (b) The Secretary may withhold the guarantee of any or all obligations not yet guaranteed or grants not yet disbursed under outstanding guarantee commitments or grant approvals for the Borrower and/or the Assumptor, under Section 108 and/or Section 106 of the Act. (c) The Secretary may direct the Borrower's financial institution to: refuse to honor any instruments drawn upon, or withdrawals from, the Guaranteed Loan Funds Account or Attachment 2 Page S of,14 the Loan Repayment Account by the Borrower, and/or refuse to release obligations and assignments by the Borrower from the Guaranteed Loan Funds Investment Account or the Loan Repayment Investment Account; and/or direct the Borrower arrd)or the Borrower's financial institution to transfer remaining balances from the Guaranteed Loan Funds Account to the Loan Repayment Account. (d) With respect to amounts subject to Optional Redemption, the Secretary may accelerate the Note. (e) The Secretary may exercise any other appropriate remedies or sanctions available by law or regulation applicable to the assistance provided under this Agreement, or may institute any other action available under law to recover Guaranteed Loan Funds or to reimburse the Secretary for any payment under the Secretary's Guarantee or any reasonable expenses incurred by the Secretary as a result of the Default. 0) All notices and submissions provided for hereunder shall be in writing (including by telex, telecopier or any other formr of telecommunication; and mailed or sent or delivered, as to each party hereto, at its address set forth below or at such other address as shall be designated by such party in a written notice to the other party hereto. All such notices and other communications shall be effective when received as follows: (i) if sent by hand delivery, upon delivery; (ii) if sent by mail, upon the earlier of the date of receipt or five Business Days after deposit in the mail, postage prepaid; (iii) if sent by telex, upon receipt by the sx,zider of an answer back; and (iv) if sent by telecopier, upon receipt. The Secretary: U.S. Dept. of Housing and Urban Development Attention: Paul Webster Director Financial Management Division 451 7th Street. SW. Room 7180 Washington. D.C. 20410 Borrower; Miatni-Dade County 11.1 NW 13' Street, 29'h Floor Miami, Florida 33128 Attention: County Manager With Copies to; Miami -Dade County Office of Community and Economic Development Attention: Director 140 W. l:'laalet' Miami. Florida 33130 Assurptor: Attachment Page 9 of 14 City of Miami 444 SW 2nd Avenue, Miami, Florida 33130 With Copies to: City of Miami, Office of the City Attorney, 444 SW 2nd Avenue, 9th Fi., Miami, Florida 33130 13. Limited Liability. Notwithstanding any other provision of this Agreement, the Fiscal AgencyfTrust Agreements or the Note, any recovery against the Borrower or Asstunptor for any liability for amounts due pursuant to this Agreement under the Note, the Fiscal Agency/Trust Agreements and this Agreement shall be limited to the sources of security pledged in paragraphs C., 5, or any Special conditions of this Agreement. Neither the general credit nor the taxing power of the Borrower, the Assurptor or of the State in which the Borrower and the Assuniptor are located, is pledged for any payment due under the Note, the Agreement, or the Fiscal Agency/Trust Agreements. 14. Incorporated Grant Agreement. The Agreement and the Note are hereby incorporated in and made a part of the Grant Agreement authorized by the Secretary on December 31, 1998, under the Funding Approval for grant number B-98-UC-12-O006 to the Borrower. In carrying out activities with the Guaranteed Loan Funds hereunder, the Borrower and the Assumptor agrees to comply with the Act and 24 CPR Part 570, as provided in Subpart M thcreof. 15. Special Conditions and Modifications: (a) RESERVED (b) Guaranteed Loan Funds were used by the Borrower to make a loan to Parrot Jungle & Gardens, Inc, (the "Obligor"), which loan was evidenced by a promissory note .(the "Obligor Note") and a loan agreement (the "Obligor Loan Ageeznent"), which Obligor Note and Obligor Loart Agreement were in a form acceptable to the Secretary. The amounts of principal and/or interest payable under the Obligor Note during the twelve month period beginning July 1 of each year and ending on June 30 of the next succeeding year are equal to or greater than the amounts of principal and/or interest payable under the Notes for the corresponding period. (i) In order to secure the payment and performance of the secured obligations of the Obligor to the l3on-ower, the Borrower obtained the fallovving collateral (collectively, the "Collateral"): • (A) A lien on the Obligor's leasehold interest in the property described in Attachment 3 hereof (the "Property"), established through an appropriate and properly recorded leasehold mortgage (the "Obligor Leasehold Mortgage"). Obligor's leasehold interests that are the subject of that leasehold mortgage are those interests identified in a Lease Agreement entered into between the Obligor and the City of Miami, Florida. The Obligor Leasehold Mortgage contained such provisions as the Secretary deemed necessary. (3) Any and all rights, titles, arid interests of the Obligor in and to any leases covering the Property. Such rights, titles, and interests of the Obligor are the subject Auahment 2 Page 10 of 14 of a collateral assignment of leases and rents (the "Collateral Assil,irnent of Leases and Rents"). The Collateral Assignment of Leases and Rents is in a form, acceptable to the Secretary. (C) Any and all rights, titles, and interests of the Obligor in and to any licenses, penults, and other agreements covering, the Property. Such rights, titles, and interests are the subject of a collateral assignment of interest in licenses, permits, and other agreements (the "Collateral Assignment of Interest in Licenses, Permits, and.Agreentents"). The Collateral Assignment of Interest in Licenses, Permits, and Agreements is in a form acceptable to the Secretary. (ri!) The Borrower selected a financial institution acceptable to the Secretary (the "Custodian") to .act as custodian for the documents specified in (iii) below (hereinafter referred to as the "Security Documents"). The Borrower and the Custodian entered into a written agreement .containing such provisions as the Secretary deemed necessary. A fully executed copy of such a,greernent, with original signatures, was forwarded to the Secretary contemporaneously with the delivery of documents pursuant to (iii) below. (iii) Not later than five business days after the initial disbursement of the Guaranteed Loan Funds to the Obligor, the Borrower delivered to the Custodian the following: (A) The original Obligor Note, endorsed in blank and without recourse. (B) The original Obligor Loan Agreement and an assignment thereof to the Secretary, which assignment was in a form acceptable to the Secretary. (C) The origi al recorded Obligor Leasehold, Mortgage signed by the Obligor and an assignment thereof to the Secretary, in a recordable form but unrecorded, which assignment was in a form acceptable to the Secretary. • (D) •The original recorded Collateral Assignment of Leases and Rents and an assignment thereof to the Secretary, in a recordable fi.nn but unrecorded, which assignment was in a form acceptable to the Secretary. (E) The original Collateral Assignment of Interest in Licenses, Permits, and Agreements and an assignment thereof to the Secretary, which assignment was in a form acceptable to the Secretary. (F) An opinion of the Borrower's counsel, addressed to the Secretary and on its letterhead, that (as of the date of such opinion): (X) the Obligor is a corporation duly organized, validly existing, and in good standing under the laws of the State of Florida; (2) the Obligor Note has been duly executed and delivered by a party authorized by the Obligor to take such action and is a valid and binding obligation of the Obligor, enforceable in accordance with its terms, except as limited by bankruptcy and similar laws affecting creditors generally; and (3) the security instruments specified in (B) through (E) above are valid and legally binding obligations, enforceable in accordance with their respective terms. Attachment 2 Page 1 t of 14 (G) A mnertgagee title policy, issued by a company and in a form acceptable to the Secretary, elan -Ling the Borrower as the insured party. The policy either included in the definition of the "insured" ca± successor in ownership of the indebtedness secured by tlae Obligor Leasehold Mortgage or was accompanied by an endorsement .if the policy LO the Secretary. (H) A certified survey with a legal description conforming to the title policy and the Obligor Leasehold Mortgage. (r) An appraisal of the O.Obiigor 9 Leasehold interest ii1 the Property specifying au estimate cf fair market value of not less than $31.250.000. The appraisal was completed by an appraiser who was certified by the state and hasa professional designation (such as "SRA" or "MAT"), and the appraisal conformed to the standards of the Financial Institutions Reform, Recovery and Enforcement Act of 1989 ("F112.REA") when issued, (iv) Concurrently with the execution of this Agreement, Borrower and Assumptor executed a Participation Agreement pursuant to which Assumptor assumed eighty percent (80%) of Borrower's interest in the Obligor Loan and the Collateral therefor. (c) Paragraph 12 is amended by adding at the end thereof the following language: "(g) The Secretary may complete the endorsement of the Obligor Note and record the assignments referred to in paragraph 15(b)(iii) and thereby effectuate the transfer of the documents referenced and underlying indebtedness frotn the Borrower to the Secretary or the Secretary's assignee. The Assumptor hereby grants irrevocable consent to any such action by the Secretary. "(h) The Secretary may exercise or enforce any and all other rights or remedies (including any and all rights and remedies available to a secured party under the Uniform Commercial Code) available by law or agreement (including any of the Security Documents, as defined in paragraph 15(h) against the Collateral, against the Borrower, against the Obligor, ar against any other person or property. The Assumptor hereby grants irrevocable consent to any such action by the Secretary." (d) The Borrower agrees that it shall promptly notify the Secretary and the Assumptor in writing upon the occurrence of any event which constitutes a default (an "Event of Default") under (and as defined in) any of the Security Documents, as defined in paragraph I5(b), Notification of an Event of Default shall be delivered to the Secretary, at 451 Seventh Street, SW, Washington, DC 20410, Attention: Director, Financial Management Division,, Office of the Assistant Secretary for Community Planning and Development. Upon the occurrence of an Event of Default, the Secretary may (without prior notice ar hearing, which Borrower hereby expressly waives), in addition to (and not in lieu of) exercising any and all remedies. that may be available under the Security Documents, declare the Notes in Default and exercise any and all remedies available under paragraph 12. This paragraph 15(d) shall not affect the right of the Secretary to declare the Notes in Default pursuant to paragraph 11 and to exercise in connection therewith any and all remedies available under paragraph 12. (e) (i) The Borrower acknowledges and agrees that the Secretary's guarantee of the Note and subsequent execution of this Agreement were made in reliance upon the availability of grants pledged pursuant to paragraph 5(a) (individually, a "Fledged Grant" and, collectively, the "PIedged Grants") in any Federal fiscal year subsequent to the Federal fiscal year ending September 30, 2005, to: (A) pay when due the payments to become due on the Note, or (1) defease (or, if permitted, prepay) the full amount outstanding on the Note, each to the extent of the Borrower's Pro Rata Slrare, The Borrower further acknowledges and agrees that if the Secretary (in the Secretary's sole discretion) determines that Pledged Grants are unlikely to be available for either of such purposes, such detemaination shall he a permissible basis for aay of the actions specified in paragraphs (ii) and (iii) below (without notice or Attachment 2 Page 12 of 14 hearing, which the Borrower expressly waives). (ii) Upon written notice from the Secretary to the Borrower at the address specified in a amay.h ap12(f) above that the Secretary (in the Secretary's sole discretion) has determined that t?... . Pledged Grants are unlikely to be available for either of the purposes specified in (A) and (5) car paragraph (I) above (such notice being hereinafter referred to as the "Notice of Impaired Security"), the Secretary may limit the availability of Pledged Grants by withholding amounts at the time a Pledged. Grant is approved or by disapproving payment requests (4.1rawdowns) submitted with respect to Pledged Grants. (iii) If after 60 days from the Notice of Impaired Security the Secretary (in the Secretary's sole discretion) determines that Pledged Grants are still unlikely to be available for either of the purposes specified in (A) and (B) of paragraph (i) above, the Secretary may declare the Note in Default and exercise any and all remedies available under paragraph 12. This paragraph (iii) shall not affect the right of the Secretary to declare the Note and/or this Contract in Default pursuant to paragraph 11 and to exercise in connection therewith any and all remedies available under paragraph 12. (iv) All notices and submissions provided for hereunder shall be submitted as directed in paragraph 12(f) above. (fj (i) The Assumptor acknowledges and agrees that the Secretary's Guarantee of the Note and subsequent execution of this Agreement were made in reliance upon the availability of grants pledged pursuant to paragraph 5(a) (individually, a "Pledged Grant" and, collectively, the "Pledged Grants") in any Federal fiscal year subsequent to the Federal fiscal year ending September 30, 2005, to: (A) pay when due the payments to become due on the Note, or (B) defease (or, if permitted, prepay) the full amount outstanding on the Note, each to the extent of the Assumptor's Pro Rata Share. The Assumptor further acknowledges and agrees that if the Secretary (in the Secretary's sole discretion) determines that Pledged Grants are unlikely to be available for either of such purposes, such determination shall be a permissible basis for any of the actions specified in paragraphs (ii) and (iii) below (without notice or hearing, which the Assumptor expressly waives). (ii) Upon written notice from the Secretary to the Assumptor at the address specified in paragraph 12(f) above that the Secretary (in the Secretary's sole discretion) has detemaned that Pledged Grants are unlikely to be available for either of the purposes specified in (A) and (B) of paragraph (i) above (such notice being hereinafter referred to as the "Notice of Impaired Security")the Secretary may limit the availability of Pledged Grants by withholding amounts at the time a Pledged Grant is approved or by disapproving payment requests (drawdowns) submitted with respect to Pledged Grams, (iii) If after 60 days from the Notice of Impaired Security the Secretary (in the Secretary's sole discretion) determines that Pledged Grants are still unlikely to be available for either of the purposes specified in (A) and (t3) of paragraph (i) above, the Secretary may declare the Note in Default and exercise any and all remedies available under paragraph 12, This paragraph (iii) shall not affect the right of the Secretary to declare the Note and/or this Contract in Default pursuant to paragraph 11 and to exercise in connection therewith any and all remedies available under paragraph 12. (iv) All notices and submi sions provided for hereunder shall be submitted as directed in paragraph 12(f). (g) As of the effective date of this Agreement, the Secretary shall treat the Borrower's Pro.Rata Share and the Assumptor's Pro Rata Share, respectively, of the outstanding principal balance due on the Note as the as the amounts, respectively, of the Borrower's and. the Assumptor's unpaid obligations under the Note for purposes of 24 CFR 570.705(a)(2)([). Attachment 2 Page 13 of 14 IN WITNESS WHEREOF, the undersigned, as authorized officials on behalf of the Borrower, the Assumptor or the Secretary, have executed this Agreement, which shall be effective and shall be dated as of the date of execution by the Secretary, after execution on behalf of the Borrower and the Assumptor, APPROVED AS TO LEGAL FORM AND CORRECTNESS: JORGE L . FERNANDEZ.,I CITY ATTORNEY v MIAMI-DADE COUNTY FLORIDA BORROWER / 14,E (N,me) C� 1'#tr.�.1. 4,.'�'j (Title) � �?t, 14,i4 1-1 (Signature) (Date) ?AA)7 BY;, CITY OF MIA I FLORIDA ASSUMP BY: (Name) Pedro G. Hernandez (Title) City Manager (Signature) (Date) SECRETARY OF HOUSING AND URBAN DEVELOPMENT BY: (Name) Nelson 12. Bregatl (TitUe) General Deputy Assistant Secretary (signature) for Community Planning and (mate) Developrent MAY 13 - Attachment 2 Page 14 of 14 ATTACHMENT 3 Description of Real Property The Borrower has inserted the legal description of the Property as defined in paragraph l5(b)(i)(A) in Attachment 3 to the Contract. That legal description has not changed. [Rest of this page intentionally left blank/ City of Miami Certified Copy File Number: 11-00983 City Hall 3500 Pain American Drive Miami, FL 33133 www.miamigov,com Enactment Number: R-I1-0442 A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S), AUTHORIZING THE CITY MANAGER TO NEGOTIATE AND TO EXECUTE AMENDMENTS TO THE PARTICIPATION AGREEMENT (INCLUDING ALL THE ATTACHMENTS THERETO, DATED AS OF AUGUST 8, 2007 ("PARTICIPATION AGREEMENT'), AND THE ASSUMPTION OF LOAN GUARANTEE ASSISTANCE AND LIABILITY AND PLEDGE AGREEMENT, INCLUDING ALL ATTACHMENTS THERETO, ("ASSUMPTION"), AFTER CONSULTATION WITH THE CITY ATTORNEY, PROVIDING FOR THE REFINANCING OF THE CITY OF MIAMI'S ("CITY") ASSUMPTION OF NOT TO EXCEED EIGHTY PERCENT (80%) OF MIAMI-DADE COUNTY'S ("COUNTY") LIABILITY UNDER THE UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT'S SECTION 108 LOAN ("SECTION 108 LOAN") USED BY THE COUNTY, IN CONNECTION WITH THE MODIFICATION OF SECTION 108 LOAN WHICH WAS IN THE ORIGINAL PRINCIPAL LOAN AMOUNT OF $25,000,000, FOR PARROT JUNGLE AND GARDENS OF WATSON ISLAND, INC. ("PARROT JUNGLE"), AND ALL OTHER DOCUMENTS AS MAY BE REQUIRED IN CONNECTION TO AMENDING SUCH PARTICIPATION AGREEMENT AND ASSUMPTION TO PROVIDE COSTS SAVINGS TO THE CITY AND THE COUNTY, SUBJECT TO CITY ATTORNEY APPROVAL; FURTHER CONSENTING TO AND AUTHORIZING THE CITY MANAGER TO NEGOTIATE AND TO EXECUTE, AFTER CONSULTATION WITH THE CITY ATTORNEY, ANY OTHER RELATED MODIFICATIONS, AMENDMENTS, SUPPLEMENTS, AND OTHER DOCUMENTS AS NECESSARY, TO ACCOMPLISH SUCH COST SAVINGS TO THE CITY. WHEREAS, on January 9, 2001, Miami -Dade County ("County") made a loan to Parrot Jungle and Gardens of Watson Island ("Parrot Jungle"), in the original principal amount of Twenty -Five Million Dollars ($25,000,000) to facilitate the financing of the development of the Parrot Jungle and Gardens of Watson Island Project (the "Parrot Jungle Loan"); and WHEREAS, the County funded the Parrot Jungle Loan by virtue of a $25,000,000, loan guaranteed by the United States Department of Housing and Urban Development ("HUD") which was advanced to the County pursuant to the Section 108 Loan Guarantee Program (the "Section 108 Loan"); and WHEREAS, the City of Miami ("City") and the County entered into a Joint Participation Agreement dated September 9, 1998 ("JPA"), in which the City agreed to replace the County as the guarantor of 80% of the Section 108 Loan, upon satisfaction of certain conditions set forth therein, including the conditions that the Parrot Jungle Loan be current and no event of default wa in existence and that the County assign to the City all of the documents securing the Loan (the "Loan Documents"); and WHEREAS, the County was not able to assign the Loan Documents to the City pursuant to the provisions of the documents evidencing or securing the Section 108 Loan; and WHEREAS, Parrot Jungle then cured, and/or the County then agreed to waive and not enforce, certain events of non-performance by Parrot Jungle under the Loan Documents; and CidyofMiami Page 1 of 3 I2-IJ-0442 Fife Number: 1I-00983 Enactment Number: R-11-0442 WHEREAS, to assist Parrot Jungle to cure its failure to make payments under the Parrot Jungle Loan, the County agreed, subject to the City's approval, to modify Parrot Jungle's obligations under the Loan Documents to (I) provide that Parrot Jungle shall not be obligated to make any payments under the Parrot Jungle Loan from August, 2006, through and including the payment due in August, 2011 (the "Deferral Period"), and (I1) required that all amounts that Parrot Jungle would have been required to pay during the Deferral Period, totaling $17,277,403 (the "Deferred Amount"), plus interest at the rate of 5% shall be payable in 10 equal annual installments commencing in 2019, provided that the Parrot Jungle Loan has been fully paid; and WHEREAS, it was determined to be in the best interest of the City to consent to the modification of the Parrot Jungle Loan to defer payment of the Deferred Amount, as set forth therein, and for the City to assume 80% of the County's obligations under the Section 108 Loan; and WHEREAS, on July 10, 2007, pursuant to Resolution No, 07-0405, the City Commission authorized the City Manager to execute a new Participation Agreement, including all attachments thereto, with the County which was dated as of August 3, 2007, (the "Participation Agreement") and an Assumption of Loan Guarantee Assistance and Liability and Pledge Agreement, including all attachments thereto, with the County and HUD (the "Assumption") and all other necessary documents in connection with such loan modification and assumption and related modifications of the modifications of the terms of the Parrot Jungle Loan from the County to Parrot Jungle; and WHEREAS, the original Section 108 Loan amount has been paid down to $15,560,000; and WHEREAS, recently the County and HUD have advised the City of the opportunity to further modify the Section 108 Loan for additional savings by reducing the interest rate without extending the maturity of the Section 108 Loan and it is in the best interests of the City to amend the Participation Agreement and the Assumption and afl other necessary documents to obtain such savings without extending the maturity of the original Section 108 Loan; NOW, THEREFORE, BE, IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The recitals and findings contained in the Preamble to this Resolution are adopted by reference and incorporated as if fully set forth in this Section. Section 2. The City Manager is authorized{1} to negotiate and to execute amendments to the Participation Agreement, including all attachments thereto, dated as of August 3, 2007 ("Participation Agreement"), and the Assumption of Loan Guarantee Assistance Liability and Pledge Agreement, including all attachments thereto, ("Assumption"), after consultation with the City Attorney, and such other documents as may be required, subject to the City Attorneys approval, providing for the refinancing of the City of Miami's ("City") assumption of not to exceed eighty percent (80%) of Miami -Dade County's ("County") liability under the United States Department of Housing and Urban Development's Section 108 Loan ("Section 108 Loan") which was in the original principal amount of $25,000,000, for Parrot Jungle and Gardens of Watson island, Inc. ("Parrot Jungle"), and all other documents as may be required in connection to amending such Participation Agreement and Assumption to provide cost savings to the City and the County, subject to City Attorney approval. Section 3. The City Commission further consents to and authorizes the City Manager to negotiate and to execute, after consultation with the City Attorney, any other related modifications, amendments, supplements and other documents as necessary to accomplish such cost savings to the City. City of Miami Page 2 of 3 R-11-0442 File Number: 11-00983 Enactment Number: R-11-0442 Section 4. This Resolution shall become effective immediately upon its adoption and signature of the Mayor.(2} Date: OCTOBER 27, 2011 Mover: COMMISSIONER SUAREZ Seconder: COMMISSIONER SARNOFF Vote: AYES: 5 - COMMISSIONER(S) GORT, SARNOFF, CAROLLO, SUAREZ AND SPENCE-JONES Action: ADOPTED Date: OCTOBER 27, 2011 Action: SIGNED BY THE MAYOR I, Priscilla A. Thompson, City Clerk of the City of Miami, Florida, and keeper of the records thereof, do hereby certify that this constitutes a true and correct copy of Resolution No. R-11-0442, with attachments, passed by the City Commission on 10/2712011. October 27, 2011 City Clerk, Deputy Clerk (for P. A. .mpson, Date Certified City Clerk) {1} If the Mayor does not sign this Resolution, it shall become effective at the end of ten calendar days from the date it was passed and adopted. If the Mayor vetoes this Resolution, it shall become effective immediately upon override of the veto by the City Commission, (2} 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. Gr j, of Miami Pam 3 of 3 R-11-0442 City of Miami Legislation Resocuf4on: R-07-0405 File Number: 47-00895 City Hall 3500 Pan American Drive Miami, FL 33133 www,miamigov,com Final_ Action date; 7/14/2007 A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S), AUTHORIZING THE CITY MANAGER TO EXECUTE A PARTICIPATION AGREEMENT AND AN ASSUMPTION OF LOAN GUARANTEE ASSISTANCE AND LIABILITY AND PLEDGE AGREEMENT, IN SUBSTANTIALLY THE ATTACHED FORM(S), PROVIDING FOR THE CITY OF MIAMI'S ("CITY") ASSUMPTION OF EIGHTY PERCENT (80%) OF MIAMI-DADE COUNTY'S ("COUNTY") LIABILITY UNDER THE SECTION :108 LOAN USED BY THE COUNTY, TO FUND A $25,000,000, LOAN TO PARROT JUNGLE AND GARDENS OF WATSON ISLAND, JNC. ("PARROT JUNGLE"), AND ALL OTHER DOCUMENTS AS MAY BE REQUIRED 1N CONNECTION TO SUCH ASSUMPTION, SUBJECT TO CITY ATTORNEY APPROVAL; WAIVING SATISFACTION OF THE CONDITIONS PRECEDENT TO SUCH ASSUMPTION SET FORTH IN THE JOINT . PARTICIPATION AGREEMENT DATED SEPTEMBER 9, 1998, BETWEEN THE CITY AND THE COUNTY; FURTHER CONSENTING TO THE MODIFICATION OF THE TERMS OF THE LOAN FROM THE COUNTY TO PARROT JUNGLE, AS MORE, SPECIFICALLY DESCRIBED HEREIN. WHEREAS, on January 9, 2001, Miami -Dade County ("County") made a loan to Parrot Jungle and Gardens of Watson Island ("Parrot Jungle"), in the original principal amount of,Twenty-Five Million Dollars ($25,000,000) to facilitate the financing of the development of the Parrot Jungle and Gardens of Watson Island Project (the "Parrot Jungle Loan"); and • WHEREAS; the County funded the Parrot Jungle Loan byvirtue of a $25,000,000, loan guaranteed by the United States Department of Housing and Urban Development ("HUD") which was advanced to the County pursuant to the Section 108 Loan Guarantee Program (the "Section 1 C8 Lean"); and WHEREAS, the City of Miami ("City") and the County entered into.a Joint Participation Agreement dated September 9, 1998 ("JPA"), in which the City agreed to replace the County as the guarantor of 80% of the Section 108 Loan, upon satisfaction of certain conditions set forth therein, including the conditions that the Parrot Jungle Loan must be current and no event of default is in existence and that the County assign to the City all of the documents securing the Loan (the "Loan Documents"); and WHEREAS, the County is not able to assign the Loan Documents to the City pursuant to the provisions of the documents evidencing or securing the Section 1 08 Loan; and WHEREAS, Parrot Jungle has cured, and/or the County has agreed to waive and not enforce, certain events of non-performance by Parrot Jungle under the Loan Documents; and WHEREAS, to assist Parrot Jungle to cure its failure to make payments under the Parrot Jungle Loan, the County has agreed, subject to the City's approval, to modify Parrot Jungle's obligations underthe Loan Docum.ents to (I) provide that Parrot Jungle shall not be obligated to make any City of Mialnt Page t of 2 • File Id: 07 iW 95 (Version: 2) .Printed On: 10/13/2 a21 File: Number; 07-00895 Enactment Number; R-07-0405 payments under the Parrot Jungle Loan from August, 2006, through and including the payment due in August, 2011 (the "Deferral"), and (if) require that all amounts that Parrot Jungle would have been required to pay during the Deferral, totaling $17,277,000 (the "Deferred Amount"), plus interest at the rate of F% shall be payable in 10 equal annual installments commencing in 2020, provided that the Parrot Jungle Loan• has been fully paid; and WHEREAS, it is in the best interest of the City to consent to the modification of the Parrot Jungle Loan to defer payment of the Deferred Amount, as set forth herein, and to assume 80% of the County's obligations under the Section 108 Loan; NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY O1= MIAMI, FLORIDA: Section 1, The recitals and findings contained in the Preamble to this -Resolution are adopted by reference and Incorporated as if fully set forth in this Section. Section 2, The City Commission waives satisfaction of all the conditions precedent to the City's assumption of the County's obligations under the Section 108 Loan described in the JPA. Section 3, The City Manager is authorized{1) to execute the Participation Agreement and the Assumption of Loan Guarantee Assistance Liability and Pledge Agreement, substantially in the attached forms, and such other documents as may be required, subject to the City Attorney's approval, to assume eighty percent (80%) of the County's obligations under the Section 108 Loan. Section 4. The modification of the Parrot Jungle Lean to defer payment of the Deferral Amount until and including the payment of August, 2011, is approved and the City Manager is authorized(1) to execute such documents as may be required to evidence this approval, subject to City Attorney approval. Section 5. 'This Resolution shall become effective immediately upon its adoption and signature of the Mayor.(2} 4atfDtms: {1} If the Mayor does not sign this Resolution, if shaft become effective at the end of ten calendar days from the date it was passed and adopted, if the Mayor vetoes this Resolution, it shall become effective immediately upon override of the veto by the City Commission. {2} 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. City of Miami Page 2 of 2 File Id. 0740 '95 (Version: 2) Printed On: 10/13/2011 Attachment 1 Pace ] of 21. PARTICIPATION AGREEMENT THIS PARTICIPATION AGREEMENT (the "Agreement") is 'made as of this '3sc( day of 2007, by and between MIAMI-DUDE COUNTY (the " County"), and CITY OF MIAMI (the "City") RECITALS 1. The County has made a loan to Parrot Jungle and Gardens of Watson Island, Inc., a Florida corporation (the "Borrower"), in the original principal amount of Twenty-five Million and No/100 Dollars ($25,000,000.00) (the "Loan"). The Loan is evidenced by a promissory note dated as cf January 9, 2001, in the face amount of $25,000,000.00 (the "Note"), 2. The purpose of the Loan was to finance the development of a botanical garden attractioi7located at Watson Island (the "Property"). 3. ' The County funded the Loan to Borrower by virtue of a S25,000,000,00 loan guaranteed by the United States Department of Housing and Urban Development ("USI~lUD") . which was advanced to the County pursuant to the Section 108 Loan Guarantee Program on June 14, 2000 (the "Section 108 Loan"). 4, As secl:+ ity for the Section 108 Loan, the County pledged its present and future Cor z unity Development Block Grant ("CDB G'') allocations as a guarantee of repayment of the principal and interest on. the Section. 108 Loan. 5. ' The County and the City entered into a Joint Participation Agreement ("IPA") dated September 9, 1998, wherein; the City agreed to assume eighty percent (80%) of the outstanding principal balance and future interest on the Section 108 Loan upon satisfaction of certain conditions, all of which have been satisfied or waived by the parties hereto,. 6. In accordance with the intent of the JPA, and subject to the terms and conditions set forth herein, the City agrees .to assume from the County, and • County agrees to assign and transfer to the City,,an undivided eighty percent (80%) interest in all of the benefits and. obligations of the County, as Lender of the Loan and under the Loan Documents. • NOW, THEREFORE, in consideration of Ten Dollars ($10,00) and other good and valuable consideration, the mutual receipt and legal sufficiency cf which are hereby acknowledged, the parties hereto do hereby agree as follows: ARTICLE I DEFINITIONS Section 1. 1 Definitions As used herein, the following terms have the respective meaning ascribed thereto below, which meanings shallbe.applicable equally to the singular and plural forms of the terms defined: g-71- (i axis Attachtnent Page 2 of 21 "Agreement" shall mean this Agreement, together with all exhibits and schedules hereto, as the same may be modified; amended or restated from time to time. "Assumption and Fledge Agreement" shall mean an Assumption of Loan Guarantee Assistance Liability and Pledge Agreerent under Section 108 of the Housing and Community Development Act of 1974, as amended, 42 U.S.C. §5308, in the fdrrn attached hereto as Attachment j "2", to be entered into by the County, USHi.1D, and the City. "Authority" shall mean any goverrrmental or quasi -governmental authority, including, without limitation, any federal, state, county, municipal or other governmental or quasi -governmental agency, board, branch, bureau, commission, court department or other instrumentality or political subdivision, whether domestic or foreign. "Business Day" shall mean any day other. than a Saturday., Sunday or a day on which banking institutions in the State of Florida are authorized or obligated by law or executive order to be closed. "City's Pro Rata Share" shall mean an amount equal .to 80% of the outstanding principal balance on the Section 108 Loan, as of the date Effective Date, plus accrued but unpaid interest as of such date and future interest until the Section 108 Loan is paid in full, "Collateral" shall mean all of the property pledged, mortgaged, hypothecated or assigned to, or deposited with Lenders finial time to time, pursuant to, or as security for, the Loan or any of the indebtedness evidence(' by the Loan Doramments. . 'Contract for Loan Guarantee Assistance" means the Contract for Loan Guarantee Assistance dated as of .tune 14, 2000, between the County and US.IR D with respect to the Section 108 Loan, as amended by the Assumption and Pledge Agreement, . "Commitment Fee" shall mean the commitment fee paid by Borrower to the County in connection with the making of the Loan by the County. 'Confirmation of Lenders' Shares" shall paean the form attached hereto as Exhibit "A" and as referenced in Section 2.3 hereof. "County's Pro Rata Share" shall mean an amount equal to 20% of the outstanding principal balance on the Section 108 Loan as of the Effective Date plus accrued but unpaid interest as of such date and future interest until the Section l08 Loan is paid in full, "Deferred Amount" shall mean an amount equal to all payments due by Bon-ower under the Note commencing on August 1, 2006 through and including the payment due on August 1, 2011, • "Effective Date" shall mean the date as of which this Agreement and the Assumption and Pledge Agreement shall have been approved and executed by City and County, Attachment 1 Page 3 of 21 "Event of Default" shall mean any default under any of the Loan Documents which is not cured within the applicable grace period, if any. "Guarantors" shall mean Bern and Mary Levine, "Herein" "hereof, "hereto" Lhereundcr and other words of tike import shall refer to any and every section and provision of this Agreement. "Lenders" shall mean County and City. "Loan" shall have the meaning assigned to it in the Recitals. "Loan Documents" shall mean the documents and instruments executed and delivered by Borrower anchor Guarantors in favor of the County in connection with the Loan, which are identified in Attachment "1" hereto, as they may be amended with the consent of the Lenders from time to time. 'Note" shall have the meaning assigned to it in the Recitals, as the same may be modified, amended, restated or renewed from time to time. "Amendment to Development Agreement" shall mean the agreement to be entered into by Borrower and Lenders to provide for the payment ofthe Deferred Amount on the maturity date, or, at Borrower's request, ovn r period of ^ .; ears commencing on the maturity date ,. in the form of Attachment "5" hereto. VL "Person" shall include, without limitation, any manner of association, authority, business trust, company, corporation, estate, joint venture, natural person, partnership, crust or other entity. "Pro Rata Share" shall mean the respective undivided participation interest in the Loan ofthe County and the City set forth on Exhibit "A.". • Section 1.2 Catiitalized Terms. Capitalized terms used herein and not defined herein shall have the meanings given such terms in the Loan Agreement, ARTICLE II TERMS OF CITY'S PARTICIPATION IN SECTION 108 LOAN Section 2.1 RESERVED Section 2.2 Concurrent Obligations. Concurrently with the execution of this Agreement and the Assumption and Pledge Agreement by the City and the County: 2,2.1 Borrower shall have satisfied or cured, or the County shall have waived, all Events of Default under the Loan Documents, including specifically, but without limitation, Attachment ] Page 4 of21 Borrower's obligation to make the contribution to the Aviary, as provided in • the. Development Agreement, • 22.2 .The County shall have executed and delivered to the City an estoppel certificate, substantially in the form of Attachment 3, certifying, among other things, that the Loan and the Section 108 Loan are current, that no event of default exists or remains uncured, and that there is no occurrence ex event or circumstance which, with notice or lapse of time would become a default under any one of the Loan Documents or the Section 108 Loan. • 2.2,3 The County shall have executed and delivered to the City an estoppel certificate; substantially in the farm of Attachment 4, certifying, among other things, the outstanding amorints and terms of payment of all outstanding loans from the County to Borrower (the "County Outstanding Loans") and further certifying that al] such loans • are current, that no event of default exists or remains uncured with respect thereto, and that there is no occurrence or event or circumstance which with notice or lapse of time would become a default under any such County Outstanding Loans . 2.2,4 The County shall have delivered to the City copies of all documents, including County . Commission .resolutions and supporting documents, relating to the County Outstanding Loans. 2.2.5 Borrower s}r ill deliver to the County arid the City a life insurance policy in the •amount of 52,000,OOO.00, for the term of the Loan, insuring the life of Bern Levine', in favor of the city and the County in proportion to the Lenders' respective Pro Rata Shares. 2.2.6 The Guarantors shall execute Guarantee in favor of the City and the County, securing the parties' respective Pro Rata Shares. 2.2.7 The County shall certify to the City the amount of money received by the County as of . the date of this Agreement representing the County's administrative fee relating to the Loan, The County farther agrees that all payments by the City of the City's Pro.Rata shall exclude 80% of the administrative fee, 2.2, 8 The County shall have delivered to the City copies of all Loan Documents, Related Loan Documents (as defined in Section 3.1) and all other documents or instruments relating to the County Outstanding Leans, certified by the County Manager to represent complete, true and correct copies of all such documents. 2.2.9 The Borrower, the County and the City will have executed the Amendment to Development Agreement The City shall have the right to cause any or all of the above mentioned documents to be • recorded'in the public records of Miami -Dade County, Florida, Execution of this Agreement by the City shall constitute evidence of compliance with the foregoing Concurrent Obligations, unless otherwise specifically stated herein.or in a separate document. • Attachment 1 Page 5of2 Section 2,3. Purchase of Participation The City shall evidence its participation in the Section 108 Loan, by executing the Assumption and Pledge Agreement, pursuant to which the City will pledge to USHUD its future years' CDBG allocations, as security for the repayment of the City's Pro Rata Share , as provided in the Contract for Loan Guarantee County and City hereby agree to use their best efforts to- cause USHUD` to execute the Assumption and fledge Agreement, Concurrently with the execution of the Assumption and Pledge Agreement by all parties, USHUD shall prcvide to the City and the County the Confirmation of Lenders' Shares. Upon USHUD's execution of the Assumption and Pledge Agreement, both City and County's liability for repayment of the Section 108 Loan shall be limited to the sources provided for in the Contract for Loan Guarantee Assistance. It is understood and agreed that upon full execution of the Assumption and Pledge Agreement the County shall have no recourse against the City for the City's failure to pay its Pro Rata Share, it being understood and agreed that the City's liability for non payment of it's Pro Rata Share under this Agreement and the Assumption and Pledge Ageement is limited to the sources provided for in the Contract for Loan Guarantee Assistance, as if the City had been a party to such contract as of the date such Contract was first executed by the County and USHUD ARTICLE III DUTIES AND REPRESENTATIONS OF COUNTY Section 3.1 Representation and Possession of Loan Documents The County represents and warrants to the City, with full knowledge that the City is relying on such warranties and representations in executing; this Agreement, that it has delivered to the City all of the Loan Documents, and all othaa documents or i netruments delivered to or obtained by the County pursuant to or in connection with the Loan, the Section 108 Loan, or the transactions contemplated thereby, including, without limitation, resolutions, correspondence, schedules, credit information; appraisals , and such other instruments and documents pertaining to the transactions contemplated hereby (the "Related Loan Documents"), which Loan Documents and Related Loan Documents are listed in Attachment 1 hereto, and that (1) The Loan Documents are all of the documents evidencing or securing the Loan, (2) to the best of the County's knowledge, after due investigation, the Related Loan Documents are all of the documents delivered to, or obtained by, the County relating to the Loan, the Section 108 Loan and the transactions contemplated herein, (3) Borrower and/or Guarantor's obligations under the Loan Documents are current and in good standing, or performance of such obligations has been properly waived or, forgiven by the County and (4) there is no unwaived occurrence or event or circumstance which, with notice or lapse of time, would become a default under any one of the Loan Documents, or would result in, or permit the exercise of remedies or the imposition or accrual daily default interest, penalties fees or charges as a result of such default. The County further represents and warrants to the City that it shall hold in its possession, for the benefit of both Lenders in accordance with the terms of this Agreement, the originals (or original counterparts) cf each of the Loan Documents and Related Loan Documents., The County shall also keep in its files, for the benefit of both Lenders, all of the foregoing documents and such other documents as the County may deem advisable. The City shall have the right to examine and photocopy all documents described herein or relating to the transactions contemplated hereby contained in County's files during normal business hours at the office of County, or at such other place as County may designate from time to time, upon City's delivery of reasonable prior notice to County. Attachment 1 Page 6of21 Section 3,2 Eunnishine of Information to City In itnediately upon receipt of notice thereof; the County shall furnish to the City notice of the following: (i) any change in the perfection or priority of any lien securing the Loan, (ii) the occurrence of any Event of Default, (iii) any written 1 request by Borrower or any other obligor on the Loan to modify the terms of the Loan or substitute or release any Collateral or any obligor' on the Loan, and (iv). any loss, damage, destruction, condemnation or other governmental taking of all or any material portion of the Collateral Section 3.3 Payments to City The County will comply with the Contract for Loan Guarantee Assistance between County and USHUD, as amended by the Assumption and Pledge A eement as lore .as anybalance re �' � g mains outstanding an the Section 108 Loan. Thereafter, whenever the County collects or receives immediately available funds representing payments of principal, interest, Iate charges, commitment fees, extension fees and other fees, recoverable expenses or any other amounts payable to or for the benefit of one or both Lenders pursuant to any of the Loan Documents or otherwise in connection with the Loan, including, 'without limitation, as a result of the enforcement of any mortgage lien on or security interest in any Collateral (collectively, "Payments'), but excluding proceeds of insurance or condemnation awards to be held pending restoration, as provided in the Loan Documents, the County shall receive, hold and disburse the same as fellows: (i) shall retain for the account and the benefit of both Lenders expenses reimbursed by Borrower pursuant to the terns of the Loan Documents 'and reimbursable to one or both Lenders pursuant hereto and disburse to the City the eighty percent (SO%) of such payment to the extent the City made payments toward the payment of the expense; and (ii) disburse to the City eighty percent (80%) of any Payment: and retain for its own account the remaining portion thereof. County agrees to disburse all sums db; to the City her .order by wire transfer not later than one (I) Business Day after the funds have been collected by the County's financial institution , except as otherwise provided by this Agreement; The County and the City shall each continue to receive their respective Pro Rata Share of all Payments made by Borrower in connection with the Loan, except as otherwise provided by this Agreement, until the Loan has been paid in full. Section 3.4 Collateral The County shall hold in its name, for the benefit of itself and the City, the Collateral and such other collateral pledged, mortgaged, hypothecated or assigned to, or deposited with Lenders from time to time pursuant to or as security for the Loan or any of the indebtedness evidenced by the Loan Documents. Section 3.5 Loan Administration A. The interest of the County and the City in the Loan shall be of equal priority. Except as otherwise provided in the Contract for Loan Guarantee Assistance with respect to the rights of USHUD, as long as any balance remains outstanding on the Section 103 Loan, the County shall have the rights and duties with respect to the collection and administration of the Loan and the security therefore described in this Section 3.5. City agrees that the County shall administer the Loan, make. payments to USHUD, if any, as required under the Section 108 Loan, and enforce the Loan Documents and collect and administer the Collateral, with the same degree of care, skill, caution and prudence the County ordinarily exercises in its administration of Ibans which it holds entirely for its own account (the "County Standard of Care"). Subject to the other provisions of this Agreement and consistent with the foregoing standard, the County shall administer the Collateral so as to preserve its value in the manner in which the County administers collateral under other loans. Notwithstanding the foregoing, the County agrees that, at the City's request, upon the occurrence of an Event of Attachment 1 Page 7 of 21 Default, or if the City feels itself insecure with respect to, the Collateral or the Loan, it will, or will authorize the City to, diligently and in good faith pursue such actions and remedies as may be reasonably required to enforce the Loan Documents and/or collect or administer the Collateral in accordance with the provisions of Section 6.1 hereof. Further, the County agrees that it shall not have the power to gz'ant releases, satisfactions; consents, joinders,'assh,giinents and reassigrnrnents with respect to the Collateral without the consent of City, which the City agrees to grant to the extent required by the terms of the Loan Documents. The County will maintain accurate books and records with respect to the Loan and the costs and expenses related thereto in the same manner as the County customarily maintains books and records for similar loans in which it acts exclusively for its own account, and shall make such books and records available for inspection by a designated representative of the City at such reasonable times as the City may request. In no event shall the County , without the written consent, and the approval of the governing body of the City: (i) change the principal amount of the Loan; (ii) postpone the due date of any scheduled payment of principal or interest or waive any such payment or any other claim against Borrower; (iii) reduce the interest rate under the Note from the rate specified therein; (iv) release any Guarantor from his obligations under his guarantee of the Loan; (v) release, substitute or exchange the Collateral or any part thereof from any Loan Document; or (vi) pledge, assign, transfer or extend any of the Loan Docu_merlts. B. The County agrees that, upon its receipt of any written notice from Borrower claiming or asserting that County has breached its obligations to Borrower pursuant to any of the Loan Documents or that County is in default of the observance or performance of any of its obligations under any of the Loan Documents, it will promptly give the City notice thereof. The County agrees to consult with the Cityregarding any alleged breach of the Loan Documents by the County and to incorpoi•are r'-1.e City's comments or suggestions in any response or action to be talcen by County as a result thereof. Section 3.6 Consultation with City The County shall seek and obtain the City's approval with respect to any actions or approvals which, by the terms of this Agreement or the Loan Documents, the County is per witted or required to take or to grant, Subject to .the provision of Section 7.1_ hereof, City's failure to grant or deny a requested approval within 30 days after the County's request shall be deemed to be approval of such action by the City, except as may be. otherwise provided in the Contract far Loan Guarantee Assistance with respect to the rights of USTUD, • Section 3.7 No Partnership Neither the execution of this Agreement, nor the sharing in the Loan or in any of the proceeds of the Collateral, nor any agreement to share in profits or losses arising as a result of this transaction is intended to be, nor shall it be construed to be, the formation of a partnership or joint.venture between or among the parties hereto, and no party shall be liable to any other Person for the liability of any other party hereto arising in connection with the Loan or any transaction connected therewith. ARTICLE IV REPRESENTATIONS AND WARRANTIES Section 4.1 Representations and Warranties of City The City, as a material inducement to County to enter into this Ageerrient and to consummate all of the transactions contemplated hereby; represents and warrants to County as follows: Attachment 1 Page 8of2: A City is a municipal corporation of the State of Florida and has the legal power and authority to enter into and perform its obligations under this Agreement and to consummate the transactions coraternplated hereby, B. • The execution, delivery and performance of this Agreement, and the consummation of the transactions contemplated .hereby, have been duly authorized by all necessary action on the part of City, do riot and will not contravene its articles of incorporation or association or bylaws or any agreement, law, governmental rule, regulation or order binding on City (including, without limitation, legal lending limits applicable to it), and do not require the consent or approval of the giving of notice to, the registration with, or the taking of any other action with respect to, any Authority. C. This Agreement constitutes the legal, valid and binding obligation of City, and is enforceable in accordance with its terms, D. Neither City nor any Person that City has authorized to act on its behalf has directly or indirectly offered any interest or participation in this Agreement to any other Person. 1✓'• City has rnade and, will continue to make such independent evaluation of such financial information and other data relating to Borrower, Guarantars and the Collateral as it deems • necessary and prudent.„ Section 4,2 Representations and Warranties ofCounty The County, as a material inducement to the City to enter into this Agreement and to consummate all of the transactions contemplated hereby, represennts and warrants to City, in addition to the matters set forth in Article IfI hereof and elsewhere in this Agreement, as follows: A. County is a political subdivision of the State of Florida and has the/legal power and authorty to enter into and perfoun its obligations under this Agreement and to consummate the transactions contemplated hereby. B. The execution, delivery and performance of this Agreement, and the consummation of the transactions contemplated hereby, have been duly authorized by all necessary action on the part of County, do not and will not contravene its charter, code, or any agreement, law, governmental rule, regulation or order binding on Lender (including, without limitation, legal lending limits applicable to it), and do•not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action with respect to, any Authority, C. This Agreement constitutes the legal, valid and binding obligation ofCounty, and is enforceable in accordance with its terms, D. Neither County nor any directly or indirectly offered any interest D. The representations and •Section 3.1 hereof, are true and correct. Person that County has authorized to act on its behalf has or participation in this Agreement to any other Person. warranties of County under this Agreerent, specifically, Artachrner t Page 9 of 21 Section 4.3. Survival of Representations. The representations contained herein shall survive the performance.of this Agreement and execution ofthe Assignment and Pledge Agreement. , " ' ARTICLE V COVENANTS OF LENDERS • Section 5,1 Other Payments, If Borrower fails to pay taxes, assessments, insurance preiniurns or .any other charges or sums required by the Loan Document's to be paid, as -the same become due and payable and County deems it necessary to, and in fact does, pay any such amounts, the City will reimburse to the County the City's Pro Rata Share of same promptly upon demand of County. Any such amounts, to the extent provided in the Loan Documents, shall be .secured by the Loan Documents and the Collateral. Additionally, City agrees to pay to County, to the extent County is not reimbursed by Borrower, it Pro-Rata Share of any reasonable out-of-pocket expenses and liabilities hereafter incurred by County in connection with the administration ofthe Loan provided, however, that nothing contained herein shall diminish the County's obligation to use County Standard of Care in the enforcement of the Loan Documents and the administration and collection of the Collateral, Section 5.2 Enforcement of County Outstanding - Loans.. The County covenants that, without the prior written consent of the City, it will not enforce Borrower's obligation to make any monetary payments to the County under the County Outstanding Loans or the Development Agreement until the ',DULL lea.; been paid in full. Section 5.3 Declaration of Invalidation. City agrees that, to the extent any amounts received in repayment of the Loan from, Borrower or otherwise, whether by payment, realization of Collateral or otherwise, are, through no fault of the County, subsequently invalidated , declared to be fraudulent or preferential, set aside or required by any Authority to be repaid to a trustee, receiver or any other Person under any applicable law, order or judgment, including the Bankruptcy Code or any similar state law or any other cause of action, and the County repays such amount to the Borrower, a trustee, receiver, or other Person , then the City shall repay to the County, within 30 (Business Days after request by County, its Pro Rata Share of any such amount (with interest to the extent' required), so that County and City will be affected by any such invalidation, declaration, set aside or repayment in accordance with its Pro Rata Share thereof Section 5,4 Excess Payment to City or County Should either City or County receive or retain any payment in excess of its Pro Rata Share of all or any portion of the Loan in any form or in any manner whatsoever, the receiving party shall forthwith pay over such excess payment to the other party as to result in a proportional participation by both Lenders in such amount; Section 5,5 Indemnification A. County hereby agrees to indemnify and hold harmless the City.(including its officers, directors, attorneys, agents and employees) from, all liabilities, obligations, damages, penalties, claims, costs, charges and expenses including, without limitation, attorneys' fees and disbursements at the trial and appellate levels (collectively, "Losses") which may be incurred by the City or which may be imposed upon the City by Borrower or any third party, arising out of or resulting frorn, by Artachment ; Page 10of2I • reason of, or in connection with, any act or failure to act on the part of the County in accordance with the terms of the Loan Documents or this Agreement, or any breach of representations contained herein. D. City hereby agrees to indemnify and hold harmless the County (including its officers, directors, attorneys, agents and employees) from all Losses which may be incurred by the County or which may be imposed upon the 'County by Borrower or any third party, arising out of or resulting from, by reason of, or in connection with any act or failure to act on the part of the City in accordance with the terms of the Loam Documents or this Ageernent, or any breach of representations contained herein, Notwithstanding the foregoing, upon USHUD's execution of,the Assignment and .pledge Agreement, the County shall have no recourse against the City for the City's failure to pay its Pro Rata Share, it being understood and ageed that the City's liability for non payment of it's Pro Rata Share under this Agreement and the Assumption and PIedge Agreement is limited to the sources provided for in the Contract for Loan Guarantee Assistance, as if the City had been a party to such contract as of the date such Contract was first executed by the County and•USHUD, ARTICLE VI DEFAULT Section 6, ] Default by Borrower Upon County or City acquiring knowledge of any Event of Default under any of the Loan Documents or any event which with the passage of time or giving of notice or both would constitute an Event of Default, or of any matter which in,its judgment, materially affects the..res:tective interests of the parties hereunder, then the party having such 'knowledge shall with reasuutable promptness notify the other party in writing of such Event of Default or matter. In the event of any Event of Default, the .County shall within five (5) Business Days thereafter notify the City of such Event of Default and of County's. intended action. The County shall act (or forebear from, acting) .as a result of such Event of Default as it shall be directed by the City, which may request the County, in writing, to do everything necessary to protect the lenders' interest in the Loan, including to institute and pursue legal action against the Borrower and/or against the varanfors and/or commence foreclosure (ar seek a relief from bankruptcy stay if such then exists followed by the commencement and pursuit of foreclosure) (collectively, the "Default Remedies"). The County shall commence and thereafter diligently pursue the Default Remedy or Default Remedies specified by the City within ten (10) days of the date of the City's written notice. If the County elects not to pursue the Default Remedies, as requested by the City, it must irrin-iediately notify the City whereupon the City shall have the right to pursue the Default Remedies and, at the City's request, the County shall take all action reasonably necessary to assist the City in the pursuit of such remedies, consistent with the County Standard of Care, including, but not limited to, assigning to the City all of the County's tights to enforce the Loan Documents and /or the Collateral. Section 6.2 Default by County or City In the event that County does not commence the requested Default Remedy or Default Remedies within the aforementioned ten (10) day period and thereafter diligently pursue same, or fails to notify the City of its election not to pursue the Default Remedies, or fails to assist the City as contemplated in Section 6.1 above, then the County shall be deemed in default. In such event, the City may, in addition to all other remedies available to it by law or in equity, seek injunctive relief against the County and the County hereby waives its right Attachment 1 Page 11 of 21 to assert that the City has an adequate remedy at law. In the event the City undertakes to enforce the Default Remedies, and thereafter fails to diligently pursue same, then'the City shall•be in default and the County may, in addition to all other remedies available to it by law or in equity, seek injunctive relief against the City and the City hereby waives its right to assent that the County has an adequate remedy at law Section 6.3 Foreclosure Subject to the rights of the USH [1D pursuant to the Contract for Loan Guarantee Assistance, the County shall hold the Loan Docurnents (together with any and all other documents executed and delivered in connection therewith) and title to any of the Collateral acquired by County after an Event of.Default in its name as agent for both City and County (to the extent of County's and City's Prc Rata Shares thereof). Accordingly, in the event of a foreclosure and foreclosure sale of any Collateral, or anyjudicial sale of any of the collateral, the County shall bid at such sale for the benef t of both Lenders and if such bid is succesful, County shall, to the extent permitted by law, cause all title instruments relating to such Collateral to be issued in the name of each Lender in accordance with each Lenders' Pro Rata Share. If a successful bid is entered by a third party, and is acceptable to the City, then, to the extent that the proceeds of the foreclosure sale are, pursuant to law, the property cf the holder of the, Loan Documents, such proceeds shall be received by Lender and shall thereupon be divided among Lenders in proportion to their respective Pro Rata Shares. Section 6.4 Default Administration. Subject to the rights of the USHUD pursuant to the Contract for Loan .Guarantee Assistance, upon the determination by County of a course of action taken after an Event cf Default in accordance with' Section 6.1 hereof, and after consultation with City, the County shall have the right to maintain, manage and operate the Collateral and sell all or any part thereof in a manner consistent with such course of action or as County determines to be prudent, respectively, and may employ' an independent management company, sales agent or others to maintain, manage, operate and sell the Collateral, all of which activity shall be part of County's right to service and administer the Loan. if County determines, in its discretion, that a management agreement is necessary, such management a,greenaent will be negotiated in good faith by County, subject to City's approval, . In the event of the appointment of a receiver for any of the Collateral during the pendency of a foreclosure proceeding or otherwise, Lenders shall share in the profits and expenses of the receivership in proportion to their respective Pro • Rata Shares. Notwithstanding the foregoing, any sale of the Collateral by County shall require the approval of the City, In such case County shall promptly notify City of each written offer to purchase the Collateral received by County, (the "Offer") advising City as to whether or not County wishes to accept the Offer, The City Manager shall notify County, in writing, within five (5) business days after City's receipt of the Offer, whether or not it wants to accept the Offer, which. decision shall be subject to City Commission approval. If one party wishes to accept the Offer, but the City Manager of the other party does not, the parties shall immediately consult. If, after such consultation, the parties still do not agree, then the party not wanting to accept the Offer (the "Purchasing Party") shall submit to its • board of commissioners the Offer and the board shall then be obligated to either accept the offer to sell, or shall purchase from the other party (the "Selling Party") the Selling Party's Pro Rata Share of the Collateral at a price equal to the amount which the Selling Party would have received from a sale pursuant to the Offer (including, without limitation, the payment of any expenses to be reimbursed to the -Selling Party under the terms of this Agreement), The purchase and sale of the Selling Party's Pro Rata Share of the.. Collateral pursuant to this paragraph shall be without recourse, warranties or Attachment 1 Pane 12 of 21 representations, except as to the ownership of the PTO Rata Share being sold and shall occur as promptly as possible, but no Later than fifteen (15) business days after the action is approved by the party's governing board. The parties shall cooperate with each other and execute such documents as are reasonably necessary to accomplish such sale as prozxhptly as possible. . Section 6:5 Enforcement Costs. To the extent Borrower does not reimburse Lenders, each party shall contribute its Pro Rata Share of the costs and expenses of enforcing the Default Remedies, Section 6.6 Application ofDefault Sums All amounts received by Lenders or with respect to the Loan Documents following any Event of Default whether paid by Borrower, realized • from the Collateral or otherwise, shall be applied by Lenders as follows:. (i) first, to the payment of any and all reasonable costs and expenses, including, without limitation, all amounts outstanding on the Section 108 Loan, reasonable t ia.1 and appellate attorneys' fees, costs and disbursements, incurred by either Lender in connection with or incidental to its collection of any amount due and payable to either Lender under the. Loan Documents, the preparation for sale of the Collateral or any portion thereof and the sale, transfer and delivery of the Collateral or any -portion thereof, (ii) second, to the satisfaction of all amounts, including principal, interest, fees and other amounts, due and payable to Lenders pursuant to the Loan Documents (iii) third, to the payment of any other amounts required by applicable law; and (iv) last, to the extent of the surplus, if any, of such proceeds, to Borrower (or such other entity as may be entitled thereto). Section 6.7 .Lasses. All Iosses incurred by Lenders as a result of any failure on the part of Borrower to repay th,G Loan and any other sums due pursuant to the Loan Documents shall be borne by Lenders in accordance with their respective Pro Rata Shares. ARTICLE VII MISCELLANEOUS Section 7 1 Approval by Governing Board of Parties Whenever this document requires a party to take action which is in the opinion of the party's counsel subject to the approval of the party's governing body, then performance by such party shall be automatically extended by a period of time equal to the number of days normally required for an item to be presented to, and considered by, such governing body, but in no event a period greater than 60 days from the date notice requesting approval is submitted, Section. 7.2 Notice Except as otherwise indicated herein, any notice, request, demand or other communication permitted or required to be given hereunder (collectively, a „Notice") shall be in writing, shall be signed by the party giving it, and shall be deemed to have been properly delivered if delivered by hand (with receipt acknowledged) to the party to whose attention it is directed or if mailed by United States registered or certified mail, retard receipt requested or if sent by express courier service (with receipt acknowledged) addressed to the following addresses: ArEachment 1 Page 13 of 21 If to County: MIAMI-DADE COUNTY 111 N. W, 15` Street 29 rn Floor Miami, Florida 3 312 8- Attention: County Manager. With Copies to: IMIIAIvIIWDADE COUNTY 111 N.W. 1S1Street Suite 2810 Miami, Florida 33128 Attention: County Attorney If to City: CITY OF IMIIAMI 444 SW 2"d Avenue Miami, Florida 33130 Attention: City Manager , With Copies to: City of Miami Office of the CityAttorney 444 SW 2"6 Avenue,. 9Lh Floor Miami, Florida 33130 or to such other address as the party to be served with. Notice may furnish•in accordance with the tents of this Section to the party seeping or desiring to serve Notice as a place for the service of Notice. Notices shall be deemed effective (a) when delivered if delivered by hand, (b) two (2) Business Days after mailing, and (c) the next Business Day after delivery to any express courier service. Section 7.3 Entire Aareernent This Agreement, together with its. Exhibits and Attachments, contains the entire agreement of the parties and supersedes all other representations, warranties, agreements and understandings, oral or otherwise, between the parties with respect to the matters contained herein. Section 7,4 Waiver of.Tury. The parties hereto hereby severally, voluntarily, lmtowingly and intentionally waive any and all .rights to trial by jury in any legal action or proceeding arising under or in connection with this Agreement, regardless of whether such action or proceeding concerns any contractual or tortious or other claim. The panties hereto acknowledge that this waiver of jury trial is a material inducement to the parties hereto in entering into this .Agreement, that the parties hereto would not have.entered into this. Agreement without this jury trial waiver, and that each Attachttaent 1 Page 14 of 21 • of them has been represented by an attorney or has had an opportunity to consult with an attorney regarding this Agreement and understands the legal effect of this jury trial waiver. Section 7.5 Survival, etc, Notwithstanding the applicable' statute of limitations, any other law Or any investigation made at any time by '.or an behalf of any party hereto, all representations, warranties, •covenants and other agreements (collectively, "Obligations") made by any party herein shall survive the execution and delivery of this Agreement, and shall remain and continue in full force and effect until both Lenders shall have fully performed and discharged all of their respective Obligations hereunder, without regard to any modification, extension, renewal, amendment or waiver of any provision ofany Note or any of the other Loan Documents. ' Section 7.15 Governing Law and Venue This Agreement shall be deemed negotiated and entered into in Miami -Dade County, Florida, and shall be governed by and construed in accordance with the laws of the State of Florida as an agreement entered into and to be performed wholly within the State of Florida. The parties agree that venue for any lawsuit in connection with this Agreement shall be in Miami -Dade County, Florida, unless an action to which any party hereto is made a defendant or third party defendant is filed in a different jurisdiction by a plaintiff not a party hereto. Section 7.7 Benefit This Agreement shall inure to the benefit of and be binding upon each party hereto and their permitted successors and assigns, subject to the provisions of Section 5.5 hereof All•respective Obligations of Lenders shall inure to the benefit of the other and its permitted successors and assi ems, subject to the -provisions of Section 5.5 hereof. Nothing in this Agreement or in any transaction contemplated hereby, either expressed or implied, is intended to confer upon any Person other than the parties hereto any rights, remedies, obligations, or liabilities under or by reason of this Agreement. Section 7.8 Counterparts This Agreement may be executed in one or more counterparts, each of which may be executed by one or more of the parties hereto, but all of which, when taken together, shall constitute but one ageement, Section 7,9 No Waiver by Action Any waiver or consent respecting any Obligation or other provision of this Agreement shall be effective only in the specific instance and for the specific purpose for which given and shall not be deemed, regardless of the frequency given, to be a further or continuing waiver or' consent, The failure or delay of a party at any time or times to require performance of, or to exercise its rights with respect to, any Obligation or other provision of this Agreement, including any investigation by or on behalf of any party, in no manner shall affect such party's right at a later time to enforce any such provision. All remedies, rights, powers and privileges of the Lenders hereunder are cumulative and are .in addition to and shall not limit any other remedy, right, power or privilege of the Lenders hereunder or under applicable law. Section 7./0. Modification Each and" every modification and amendment of this Agreement shall be in writing and signed by all of the parties hereto, and each and every waiver of, or consent to any departure from, any Obligation or other provision of this Agreement, shall be in writing and signed by the party hereto against which such waiver or consent is sought to be enforced, The County Manager, on behalf of the County, and the City Manager, on behalf of the City, shall have -the right to' amend this Agreement unless in the • Attachment 1 'age 15 of 21 opinion of counsel for the party seeking to amend the Agreement, approval by the governing body is required. Section 7.11 • Captions The sections, captions and other headings contained in this Agreement are for convenient _reference purposesonly and shall .not affect the meaning or interpretation, or define, describe, extend or limit the scope or intent, of this Agreement or any provision hereof. • IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written. Attest: Pzis lla A. Thomson, City Clerk Approved as to For-1 and Correctness: e L. Fernandez, City Attorney : ,.r COUNTY: MIAMI-DADE COUNTY CITY: CITY OF MIAMI City Manager Approved a; to Insurance Requirements: Auk,,,, ihelt4" tt ON USHUD'S LETTERHEAD] EXHIBIT "4" CONFIRMATION OF PARTICIPANT'S SHARES MIAMI-DADE COUNTY 111 N. W, 1 S` Street Miami, Florida 33128 CITY OF MIAMI . 444 SW 2ND Ave Miami, Fl, 33130 Attachment 1 Page 16 of 21 THIS IS TO CERTIFY THAT, pursuant to the PARTICIPATION AGREEMENT (the "A-eement") dated as of , 2006 executed by MIAMI-DADE COUNTY (the "County") and CITY OF MIAMI (the "City") relating to a S25,000,000.001oan from Lender, the County and the City are liable to the USHUD in accordance with each party's pro rata share, as follows: T Dated: • SCHEDULE"A" LENDERS' PRO RATA SHARES 'Principal Amount Pro RRata Amount of Loan LENDER: MIAMI-•DADS•. OTiNTY: • S5,000,000,00 20% PARTICIPANT: CITY OF MIAMI: 320,000,000.00 1 80% TOTAL OUTSTANDING: S25,000,000,00 .100% Attachment •1 Page 17 of 2 i ATTACHMENT "I" LOAN DOCUMENTS 11IAM R-DADS. Ac A Cuordinaticrt Agende Coordination Animal Servicee Art in Pubic Places soda and Management Services Aute[in❑ adding Budding Code Compliance ItuSinoss r7¢vciopmeni C.pildl tn,prolpnirnIs Greens" ir.rle:pendent Tro nspona Jinn Trust Commission on Eihres and Pr,hlic Trust COmmllMcai oni Community Achim Neneg Community & Etonomie DuvclopRrenf Community Relefions Consumer Ser.,Cert Coreeitons & Rehabliitation Cultural Ahairs Elections EmefgenR' Management Employee Relations Lmpu wermeni Trust inIerprrse Technology SeNices .Ewironmenia! Peso roes Management Fair Employment Pretlietes finance Fire Rescue Cenanrl Setiices Administration Kook Pso;orvalipn Homeless Trust Hnuslrg hgenc.y Housing Finance Authority Human SB rvices Indepenennt Review Pane! • inlematrnnolTrade Consortium juvenile Services Medical Examiner Meoo=Miami Action plan MiIrnpnhten Plannmy i']rganizanon Park and Reereadnn Pienning and ,Zgniny, Police Pro: firemen! Management Arupeny Appraisal Public Library System Public Works 5aie Neighborhood Parks Seaport Solid waste Mards:mom Sualegic Business naanagerneat Team Melrs7 ifunufct f July'25, 2007 Olga Ramirez-Seijas Assistant City Attorney City of Miami 444 S.W. 2nd Avenue Miami, Florida 33130 Community & Economic Development 140 Wes( Nagler Street * Sui1e 1000 Miami, FiCrida 33130 T 305.375-3422 F 305-375-3428. miamidade.gov Re: Parrot Jungle and Garderss Document Dear Ms. Ramirez-Seljas: • We are hereby submitting the following Parrot Jungle and Gardens of Watson Island, Inc, documents per your request: $25 •Million Section 108 Loan • U.S. Department of Housing and Urban Development Contract • Modification of Mortgage • Assignment of Florida Leasehold Mortgage; Assignl-rient of Leases and Rents and Security Agreement • Florida Leasehold Mortgage, Assignment of Leases and Rents and Security Agreement • Joint Participation Agreement between Miami -Dade and City of Miami for the Parrot Jungle and Gardens of Watson, Island, Inc. Section 1O6 Loan Guarantee App€ication • • Mortgage Subordination Agreement U.S. HUD Fixed Rate Note for Series 2000-A Certificates • Promissory Note • „ Continuing Guaranty for Bern and Mary Levine ▪ Amendatory Agreement Development Agreement between Miami -Dade County and Parrot Jungle and Gardens of Watson lsiand, Ind and the City of Miami • $1.5 Million Forgivable Loan • Loan Agreement • Promissory Note $1 Million Loan • • • Loan Agreement • Promissory Note • Continuing Guaranty for Bern and Mary Levine ' Transit The Estopp'el•Cortificate and the•modificetior'of the Note are -currently in process Task Force on Urban Economic Revitalleatlon and will be provided in the next few days, Vizcaya Museum And Cdene Water 4 Sewer _ ,. . z i' w _: •...r F..• Page 2 Parrot Jungle and Gardens Document July 25, 2007 Pease note that the $4.7 million documents are in process. After execution, they will be forwarded to you under separate cover letter, Please contact Tangle White -Jackson at (305) 375-3434 should you have any questions. Sincerely Jose Cintron Director JC:Ic Enclosures .c: Larry Spring, CFO, City of Miami Shannon Summerset, Assistant County Attorney— No Attachments Mario F. Morlote, Assistant to the County Manager— No Attachments Tangle White Jackson, Director — EDD Attachment 1 Pape IS of 21 ATTACHMENT "2" Assumption of Loan Guarantee Assistance Liability and Pledge Agreement e t /'Y? r • Attachment 2 Page } of )4 U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT ASSUMPTION OF LOAN GUARANTEE ASSISTANCE LIABILITY AND PLEDGE AGREEMENT UNDER SECTION 108 OF THE HOUSING AND - COMMUNITY DEVELOPMENT ACT OF 1974. AS AMENDED. 42 U.S.C. 95308 Date of Agreement; This Assumption of Loan Guarantee Assistance Liability and Pledge Agreement ("Agreement") is entered into by Miami -Dade County. Florida, as Borrower (the "Borrower"), the City of Miami. Florida, as assumptor (the "Assumptor"); and the Secretary of Housing and Urban Development ("Secretary"), as guarantor for the Guarantee made pursuant to. section 108 ("Section 108") of .title I of the Housing and Community Development Act of 1974; as amended (the 'Act") and 24 CFR Part 570, Subpart M, of the promissory note issued on June 14, 2000, and numbered D 98-UC•]2� 0006, in the orig;na] Aggregate Principal. Amount of $25,000,000, and any amended note or note that may be issued in substitution for such note and having the sarnenote number (the "Note").' Such Aggregate Principal Amount was paid or credited to the account of the Borrower as of June 14, 2000 (the "Public Offering Date"), and all amounts so paid or credited are collectively referred to herein as the "Guaranteed Loan Funds." The Note includes the Fiscal Agency Agreement and the Trust Agreement as defined in the Note. Terms used in tnis.A eernent with initial capital letters and not otherwise defined in the text hereof shall Iia`', the respecti Y'e meanings given thereto in the Note, The Fiscal Agency Agreement and the Trust Agreement are sometimes collectively referred to herein as the "Fiscal Agency/Trust Agreements," and the Fiscal Agent and the Trustee respectively are sometimes collectiveiyreferred to as the ".Fiscal Agent/Trustee." RECITALS A. The Note. On the Public Offering Date, trust certificates backed by the Note and similar notes issued by other Section T08 borrowers, denominated "Section 108 Government Guaranteed Participation Certificates Series HUD 2000-A" (the "Certificates"), were purchased for a purchase price cf the full aggregate principal amounts thereof at interest rates determined by the Secretary and the initial purchasers, which purchasers were underwriters selected by the Secretary (the "Underwriters"). The Note is payable to the Trustee as Registered Holder on behalf of the Beneficial Owners of the Certificates. The interest rate at which the trust certificate of a specified maturity was sold to the Underwriters was the interest rate inserted on the Public Offering Date in Schedule. P&1 of the Note for the Principal Amount of corresponding maturity. After the Public Qfferi.ng Date, the Borrower has agreed and the Assurnptor hereby acknowledges that the Trustee pursuant to the Trust Agreement will maintain the books and records of all payments on the Note and all Principal Amounts and interest rates on such Principal Amounts, The Note and the Secretary's Note Guarantee as held by the Trustee and the Secretarys Certificate Guarantees are not amended and are not affected by this Agreement. Attachment 2 Page 2of]4 13. The Contract. Effective as of the Public Offering Date, the Borrower and the Secretary entered into a Contract for Loan Guarantee Assistance (the "Contract") with respect to the temporary deposit and the use of the Guaranteed Loan Funds for eligible activities, the terms of the Secretary's Guarantee, .the security for the Secretary's Guarantee, the establishment of a Loan Guarantee Repayment Account and' any other matter covered by the Contract. C. The Participation Agreement. Contemporaneously herewith, the Borrower and the Assumptor have entered into a Participation Agreerent with respect to. the "Loan" as defined therein, which is the same loan described in paragraph 15(b) of the Contract. Such loan was made with Guaranteed Loan Funds to the "Obligor," is evidenced by the "Obligor Loan Agreement" and the "Obligor Note," and is secured by the "Collateral", each as also described in paragraph 15 of the Contract. Such loan shall be referred to herein as the "Obligor Loan," Pursuant to the Participation Agreement, the Assumptor purchased eighty percent ($D%) of the Borrower's interest in the Obligor Loan and •the Collateral therefore, and the Borrower retained a twenty percent (20%) interest in the Obligor Loan and the Collateral therefore. • ' AGREEMENT The Assumptor hereby agrees to assume eighty percent (80%) (the "Assumptor's Pro Rata Share") of the Borrower's liability under the Contract. for repayment of the principal and intctcst of the Note, the Borrower agrees to remain liable to repay twenty percent (20%) (d; "borrower's I".o Rata Share") of the principal and interest on the Note, and the parties hereby agree to the more specific understandings, undertakings, and amendments to the Contract set forth below. The paragraph numbers in this Agreement correspond to the paragraph numbers in the Contract. 'This Agreement amends and supersedes the corresponding provisions of the Contract, except as otherwise provided in this Agreement. I. Receipt, Deposit and Use of Guaranteed Loan Funds, The Borrower has received and disbursed the entire proceeds of the Note to the Obligor for the Obligor Loan and has submitted all reports to HUD as required under pararaph 1 of the Contract, No funds remain in the Guaranteed Loan Funds or the Guaranteed Loan Funds Investment Accounts, and these Accounts have been closed, 2. Payments Due on Note. Using any available funds in the Loan Repayment Account under paragraph d of this Agreement, the Borrower shall continue to pay to the Fiscal Agent/Trustee, as collection agent for the Note, all amounts due pursuant to the terms of the Note. In accordance with the Note and the Fiscal Agency/Trust Agreements, payment shall be made by 3:00 P.M. (Near York City time) an the seventh Business Day (the "Note Payment Date") preceding the relevant Interest Due Date or Principal Due Date (each as defined in the Note), If any Note Payment Date falls on a day that is not a Business Day, then the required payment shall be made on the next Business Day. Payments to the Fiscal Agent/Trustee may be made by check or wire'transfer, in the event of a shortage in Attachment 2 Page 3 of 14 funds available in the Loan Repayment Account when payment is due to the Fiscal Agent/Trustee under the Contract, the Borrower and the Assumptor hereby agree to pay the Borrower's Pro Rata Share and Assunzptor's.Pro Rata Share, respectively, of the, shortage • needed to. make ,the..paynrent, In such -event,. the Borrower will promptly notify the Assumptor of the Assumptor's Pro Rata Share of the payment due, and the Assumptor hereby agrees promptly to pay such amount to the Borrower. by wire transfer to the Loan Repayment Account maintained by the Borrower under paragraph 6 of the Contract and this Agreement. 3. Selection of New Fiscal Agent or Trustee. The Secretary shall select a new Fiscal Agent or Trustee if ,the Fiscal Agent. or Trustee resigns or is removed by the Secretary. The Borrower and the Assumptor hereby consent in advance to any such selection and to any changes in the Fiscal Agency/Trust Agreements agreed to by any Fiscal Agent or Trustee and the Secretary, subject to paragraph 4(d) cf this Agreement, 4. Payments Due Fiscal Agent or Trustee; Documents to the Secretary. (a) The Borrower agrees to pay the Borrower's Fro Rata Share and the Assumptor agrees to pay the Assurnptor's Pro Rota Share of the cost of reimbursement and/or compensation of the Trustee pursuant to the Trust Agreement, including Sections 3,1 1 and 7.0I thereof, to the extent the Borrower is notified of any such costs after the date of this Agreement. If the Borrower is so notified, the .Borrower agrees to promptly notify the Assumptor of the Assurn,ptor's Pro Rata Share. (b) The AssuA:,ptor shall submit to the Secretary, concurrently with execration and delivery of this Agreement, an opinion acceptable to the Secretary from the Assumptcr's counsel to the effect that: (i) the governing body of the Assumptor has authorized by resolution or ordinance, in accordance with applicable State and local law, the execration of this Agreement; (ii) this Agreement is a.valid, binding, and enforceable obligation of the Borrower; (iii) the pledge of funds pursuant to 24 CFR §570,705(b)(2) and paragraph 5(a) of this Agreement is valid and binding; and (iv) there is no outstanding litigation that will affect the validity of this Agreement. (c) The undertakings in paragraphs 3 and 4 of this Agreement are expressly subject to the requirement that the Fiscal Agency/Trust Ageements shall ill no event require payment of fees' or charges, reimbursement of expenses, or any indemnification by the Borrower cr the Assumptor from any source other than funds pledged pursuant to • paragraphs 5 or IS of this Agreement, 5. Security. The Borrower and the- Assumptor hereby pledge as security for repayment of their respective pro rata share of the Note and such other charges as may be authorized in the Contract or this Agreement, in their respective pro rata shares hereunder, the following: (a) All allocations or grants which have been made or for which the Borrower or the Assumptor, as applicable, may became eligible under. Section l06 of the Act. Attachment 2 Page 4 of 14 (b) Program income, as defined at 24 CFR 570.500(a)(or any successor regulation), directly generated from the use of the Guaranteed Loan Funds. (c) Other security as described in paragraph 15, _et s�ce .,_of the Contract or this Agreement. (d) Alf proceeds (including insurance and condemnation proceeds) from any of the foregoing. (a) All funds or investments in the accounts established pursuant to paragraphs I. and 6 of this Agreement. 6. Loan Repayment Account, (r) All amounts pledged pursuant to paragraphs S(b), 5(c), and S(d) of this Agreement, and all amounts required to be paid by the Borrower and the Assumptor under Section 2 hereof, shall. be deposited .irarnediately, upon receipt in a separate identifiable custodial account maintained by the Borrower (the "Loan Repayment Account.") with a financial institution whose deposits or accounts are Federally insured. The Loan Repayment Account has been established and designated the • form document entitled "Letter Agreement for Section lOS Loan Guarantee Program Custodial Account' (Attachment 1 to the Contract), and such account shall be continuously maintained for • deposit of all such pledged funds, Borrower shall make withdrawals from said account only for the purpose of paying interest and principal due on the Note (including the purchase of Government Obligations for defeasance in accordance with paragraph IO hereof), for . payment of any otitet obligation of the Borrower and the Assumptor under this Agreement or the Fiscal Agene) -Trust A2reerii .nts, in their respective pro rata shares hereunder, or foi' the temporary investment of funds pursuant to this paragraph, until final payment and • discharge of the indebtedness evidenced by the Not; unless otherwise expressly authorized by the Secretary in writing. Such temporary investment of funds shalt be required within three Business Days after the balance of deposited funds exceeds the amount of the Federal deposit insurance on the Loan Repayment Account. At that time, any balance of funds in the Loan Repayment Account exceeding such insurance coverage shall be fully (100%) and continuously invested in Government obligations, as defined in paragraph I hereof Ail temporary investments, whether or not required as above, shall be limited to Government Obligations having maturities that are consistent with cash requirements for payment of principal and interest as required under the Note. In no .even, shall the matuddes of such investments exceed one year, All such investments shall be held in trust for the benefit of the Secretary by the above financial institution in an account (the "Loan • Repayment Investment Account") that has been established and designated pursuant the form document entitled "Letter Agreement for Section 108 Loan Guarantee Program Custodial investment Account" (Attechr ent 2 to the Contract), which account shall be . maintained for all Government Obligations purchased with funds from the Loan Repayment Account, Al? proceeds and income derived from such investments shall be returned to the Loan Repayment Account. As of the date of this Agreement, the Borrower and the Assumptor shall be deemed to share ownership of the Loan Repayment Account and the Loan Repayment Investment Account, in accordance with their respective pro rata shares hereunder, although the Attachment 2 Page 5 of 34 Borrower shall continue to maintain such accounts in accordance with this Agreement and with Borrower's obligations to Assumptor under the Participation Agreement.. (b) Borrower shall, by the Bfteenth day ofeach.month, provide the Secretary and the Assumptor with a written statement showing the balance of funds in the Loan Repayment Account and the deposits and withdrawals of all funds in such account during the preceding calendar month and a statement identifying the obligations and their assignments in the Loan Repayment Investment Account. (c) Upon the Secretary giving notice that the Borrower or the Assumptor, or bath of them if applicable, is in Default under this Agreerrtent or the. Note, all right, title, and interest of the Borrower -or the Assurnptor, or both of them, as applicable, in and to the Loan. Repayment aria Loan Repayment Investment Accounts shall immediately vest in the Secretary for use in making .payment on the Note, purchase of Government obligations in accordance with paragraph 10, or payment of any other obligation of the Borrower under this Agreement cr the Fiscal Agency/Trust Agreements. 7. Use of CDBG Funds far Repayment. Any funds available to the Borrower or the Assumptor under Section 106 of the Act (including program income derived therefrom) are authorized to be used by the Borrower or the Assumptor, in accordance with their respective pro rata shares under this Agreement, for payments due on the Note, Optional Redemption as defined in the Note), payment of any other obligation of the Borrower under this Agrueinc4it or the Fiscal Agency/Trust Agreements, or the purchase of Government oKtgett:nns in accordance.with paragraph ]0. Unless otherwise specifically provided herein or unless otherwise expressly authorized by the Secretary in writing, the Borrower shall substantially disburse funds available in the Loan Repayment or the Loan Repayment Investment Accounts before funds from grants under Section 106 of the Act are withdrawn from the U.S. Treasury for such purposes by either the Borrower or the Assurnptor. $.Secretary's Right to Restrict Use of CIM3G Funds to Repaymi~nt. Upon a determination by the Secretary that payments required by paragraph 2 and/or paragraph 4 • of this Agreement are unlikely to be made as required in accordance with their respective pro rata shares hereunder by either the Borrower or the .Assumptor, or both, the Secretary may give the Borrower and/or the Assumptor, as applicable, notice that the availability to the Borrower and/or the Assurnptor, as specified in such notice, of funds pledged under paragraph 5(a) of this Agreement for purposes ocher than satisfaction of the pledge is'being restricted. This restriction shall be in an amount estimated by the Secretary to be sufficient to ensure that the payments referred to in paragraph 2 and/or paragraph 4 hereof are made when due by the Borrower and/or the Assurnptor, as applicable, With respect to the Borrower and/or the Assumptor as applicable, this restriction may' be given effect by conditioning the restricted amounts to prohibit disbursement far purposes other than satisfaction of the pledge at the time such restricted funds are approved. as grants, by limiting the restricted party's ability to draw down or expend the restricted funds for other purposes, and by disapproving payment requests submitted with respect to such grants far purposes other than satisfaction of the pledge. • Attachment Page 6 of 1a 9.Secretary's Right to Use'Pledged Funds far Repayment. The Secretary may use funds • pledged under paragraph 5(a) of this Agreement or funds restricted under grants pursuant to paragraph 8 of this Agreement to make any payment; required of the Borrower or the Assumptor under paragraph 2 and/or•paragraph 4, if such payment has not been timely made by the Borrower or the Assumptor, as applicable. 10Defeasance, For purposes of this Agreement, the Note shall be deemed to have been paid (defeased) to the extent that there shall have been deposited with the Trustee either moneys or Govetrunent Obligations (defined below), which in the sole determination of the Secretary, mature and bear interest at times .and in amounts sufficient, together with any other moneys on deposit with the Trustee for such purpose, to pay when due the principal and interest to become due on the Note. The Aggregate Principal Amount of the Note or any unpaid Principal Amount may be so defeased, in whole or in part, as of any Interest Due Date, or any other Business Day acceptable to HUD, the Borrower, and the Assumptor. In accordance with the Note and 'the Trust Agreement, the Borrower shad give timely notice and written. instructions to the Secretary and the Trustee concerning any principal amounts proposed to be defeased, including any Optional Redemptions proposed, which instructions shall be approved by the Secretary. If the unpaid Aggregate Principal Amount of the Note guaranteed pursuant to this Contract shall be defeased and deemed to have been paid in full, then the Borrower and the Assumptor shall be released from all agreements, covenants, and further obligations under the Note. , "Government Obligation" means a direct obligation of,•or.any obligation for which the full and timely payment of principal and interest is guaranteed by; the United States of America,•includi,; l.ur• not lirniteZ to, United States Treasury Certificates of Indebtedness, Notes and Bonds .State and focal Government Series or certificates .of ownership of the principal of or interest on direct obligations of, or obligations unconditionally guaranteed by. the United States of America, which obligations are held in trust by a commercial bank which is a member of the Federal Reserve Systern and has capital and surplus (exclusive of undivided profits) in excess of S100,000,000. zl. Defaults. (a) A Default under the Note and this Agreement shall occur upon the Borrower's failure to: (i) pay when due an installment of principal or interest on the Note; or (ii) punctually and properly perform, observe, and comply with any covenant, agreement, or condition of the Borrower contained in; (A) this Agreement, (B) any security ag-eement, deed of trust, mortgage, assigr-iment, Guarantee, or other Agreement securing payment of indebtedness evidenced by the Note, or (C) any future amendments, modifications, restatements, renewals, or extensions of any such documents (b) The Borrower and the Assumptor each waive notice of Default arid opporrunity for hearing with respect to a Default under paragraph 11(a). (c) In addition to• Defaults under paragraph ] 1(a), the Secretary may declare the Note in Default if the Secretary makes a final decision in accordance with the provisions of section 111 of the Act and 24 CFR §570.913 (or any successor provisions), including . Attachment 2 Page 7of14 requirements for reasonable notice and opportunity for hearing, that either the Borrower or the Assumptor; or both- have failed to comply substantially with title I of the Act. Notwithstanding any -other provision, following the giving of such reasonable notice to either such party, or both; the Secretary•.may withhold .the making of. commitments to guarantee or the guarantee of any or all obligations not yet guaranteed in accordance with outstanding commitments on behalf of the Borrower or the Assumptor, or both as applicable, In addition, in the event that notice of Default has been given to the Borrower under this paragraph 11(c), the Secretary may, in the Secretary's sole discretion pending the Secretary's final decision, direct the Borrower's financial institution to: refuse to honor any instruments drawn upon, or withdrawals from, the Loan Repayment Account initiated by the Borrower, and/or refuse to release obligations and assignments by the Borrower from the Loan Repayment Investment Account. (d) A Default •by the Borrower under paragraph l 1(a) shall be deerned a default by the Assumptor only if Assumptor, has failed to pay when, due any amount owing under paragraph 2 or 4 of this Agreement or to punctually and properly perform, observe, and comply with any covenant, agreement, or condition applicable to the Assumptor in this Agreement, In such event, the Secretary shall be entitled to exercise remedial actions in accordance with the 'respective pro rata shares of liability of Borrower and Assumptor hereunder against funds respectively pledged by the Borrower and the Assumptor under this Agreement. (e) A Default limited to the Assumptor or to the Borrower under this Agreement shall entitle. the Z;:c:etary to exe_ciee remedial actions only against funds pledged by the Assumptor or the Borrower, as applicable, under this Agreement, I2.Remedial Actions. Upon a'Default or declaration of Default under This Agreement, the Secretary rnay, in the Secretary's sole discretion, take any or all of the following remedial actions: (a) With any funds or security pledged under this Agreement, the Secretary may (i) continue to -ma.ke payments due on the Note, (ii) make an acceleration payment with respect to the principal amount of the Note subject to Optional Redemption as provided in Section B of the Note, (iii) purchase Government Obligations in accordance with paragraph 10 of this Agreement, (iv) pay any interest due for late payment as provided in the Note, this Agreement, or the•Fiscal Agency/Trust Agreements, (v) pay any other obligation of the Borrower and/or the Assumptor, as applicable, under this Agreement or the Fiscal Agency/Trust Agreements, anchor (vi) pay any reasonable expenses incurred by the Secretary or the .Fiscal Agent/Trustee as result of the Default. (b) The Secretary may withhold the guarantee of any or al] obligations not yet guaranteed or grants not yet disbursed under outstanding ,guarantee commitments or grant approvals for the Borrower and/or the Assumptor, under Section 108 and/or Section 106 of the Act. (c) The Secretary may direct the Borrower's financial institution to: refuse to honor any instruments drawn upon, or withdrawals from, the Guaranteed Loan Funds Account or- Attachment 2 Page S of €4 the Loan Repayment Account by the Borrower, and/or refuse to release obligations and assignments by the Borrower from the Guaranteed Loan Funds Investment Account or the , Loan Repayment Investment Account; and/or direct the Borrower and/or the Borrower's financial institution to transfer, remaining balances from -the Guaranteed Loan Funds Account to the Loan Repayment Acoount. (d) With respect to amounts subject to Optional Redemption, the Secretary may accelerate the Note. (a) The Secretary may exercise any other appropriate remedies or 'sanctions available by law or regulation applicable to the assistance provided under this Agreement, or may institute any other action available under law to recover Guaranteed Loan Funds or to reimburse the Secretary for any payment under the Secretary's Guarantee or any reasonable expenses incurred by the Secretary as a result ofthe Default. () All notices and submissions provided for hereunder shall be in writing (including by telex, telecopier or any other forrr of telecommunication) and mailed or sent or delivered, as to each party hereto, at its address set forth below or at such other address as shall. be designated by such party in a written notice to the other party hereto, All such notices and other communications shall be effective when received as follows: (i) if sent by hand delivery, upon delivery; (ii) if sent by snail, upon the earlier of the date of receipt or five Business Days after deposit in the mail, postage prepaid; (iii) if sent by telex, upon receipt by the seeder of an answer back; and (iv) if sent by.telecopier, upon receipt. ' The Secretary: U.S. Dept. ofHousin2 and Urban Development Attention: Paul Webster Director Financial Management Division 451 7th Street, SW. Room 7180 Washington', D.C. 20410 Borrower: Miami -Dade County 1 ] 1 NW 151 Street, 29'6 FIoor Miami. Florida 33128 Attention: County Manager With Copies to: Miami -Dade County Office of Community and Economic Development Attention: Director 140 W. Flae1er Miami. Florida 33130 ,Assumptor: Attachment 2 Page 9 of ] l City of Miami With Copies to: 13. Limited Liability. Notwithstanding any other provision of this Agreement, the Fiscal Agency/Trust Agreements or the Note, any recovery against the Borrower or Assumptor for any liability for amounts due pursuant to this Agreement under the Note, the Fiscal Agency/Trust Agreements and this Agreement shall be limited to the sources of security pledged in paragraphs C., 5, or any Special conditions of this Agreement. Neither the general credit nor the taxing power of the Borrower, the Assumptor or of the State in which the Borrower and the Assumptor are located, is pledged for any payment due under the Note, the Agreement, or the Fiscal Agency/Trust Agreements, 14. Incorporated Grant Agreement. The Agreement and the Note are hereby incorporated in and made a part of the Grant Agreement authorized by the Secretary on December 31. 1998. under the Funding Approval for grant number B-9S-UC-12-0O06 to the Borrower. In carrying out activities with the Guaranteed Loan Funds hereunder, the Borrower and the Assumptor a-ces to comply with the Act and 24 CPR Pant 570, as provided in Subpart M thereof. 25. Special Conditions and Modifications: (a) RESERVED , (b) Guaranteed Loan Funds were used by the Borrower to make a loan to Parrot Jungle & Gardens, Inc. (the 'Obligor"), which loan was evidenced by a promissory note (the 'Obligor Note") and a Ioan agreement (the "Obligor Loan Agreement"), which Obligor Note and Obligor Loan Agreement were in a form acceptable to the Secretary. The amounts of principal and/or interest payable under the Obl=gor Note, during .the twelve month period beginning July 1 of each year and ending on June 30 of the next succeeding year are equal to or greater than the amounts of principal and/or interest payable under the Notes for the corresponding period. (1) In order' to secure the payrrtent and performance of .the secured obligations of the Obligor to the Borrower, the Borrower obtained the following collateral (collectively, the "Collateral"): (A) A lien on the Obligor's leasehold interest in the property described in Attachment 3 hereof (the "Property"), established through art appropriate and properly recorded leasehold 'mortgage (the "Obligor Leasehold Mortgage"), , Obligor's leasehold interests that are the subject of that leasehold mortgage are those interests identified in a Lease Agreement'entered into between the Obligor and the City of Miami, Florida. The Obligor Leasehold Mortgage contained such provisions as the Secretary deemed necessary. ' (B) Any and all rights, titles, and interests of the Obligor in and to any leases covering the Property. Such rights, titles, and interests of the Obligor are the subject A.ttathment 2 Page 10 of 14 . of•a collateral assignment of leases and rents (the "Collateral Assigrunent of Leases and Rents"). The Collateral Assignment of Leases and Rents is in a form, acceptable to the Secretary, • '(C) Any and.all rights, titles, and interests of. the .Obligor in and to any licenses, permits, and other agreements' covering the Property. Such rights, titles, and .interests are the subject of a collateral assignment Of interest in licenses, permits, and other agreements (the "Collateral Assignment of Interest in Licenses, Permits, and Agreements"), The Collateral Assignment of Interest in Licenses, Permits, and Agreements is in a forgo acceptable to the Secretary. • (ii) The Borrower selected a 1-inancial institution acceptable to the Secretary (the "Custodian") to act as custodian for the documents specified in (iii) below (hereinafter referred to as the "Security Documents"). The Borrower and the Custodian entered into a • written ageement containing such .provisions. as .the Secretary deemed necessary. A fully executed copy of such agreement, with original signatures, was forwarded to the Secretary contemporaneously with the delivery of documents pursuant to (iii) below. (iii) Not later than Eve business days .after the initial' disbursement of the Guaranteed' Loan •Funds to the Obligor, the Borrower delivered to the Custodian the following . (A) The original Obligor Note, endorsed in blank and without recourse. (B) The original Obligor Loan Agreement and an 'assignment thereof -to the Secretary, whichassig tnent was in a fora: acceptable to the Secretary, (C) The recorded Obligor Leasehold Mortgage signed by the Obligor and an assignment thereof to the Secretary, in a recordable form but unrecorded, which assignment was in a form acceptable to the Secretary, - (D) The original recorded Collateral Assignment cf Leases and Rents and an assignment thereof to the Secretary, in a recordable form but unrecorded, which assignment was in a form acceptable to the Secretary. - (E) -`2"he• original Collateral Assignment. of Interest in Licenses, Permits, and Agreements and an assignment thereof to the Secretary, which assignment was in a form acceptable to the Secretary. • (F) An opinion of the Borrower's counsel, addressed to the Secretary' and on its letterhead, that (as of the date of such opinion): (I) the Obligor is a corporation duly organized, validly existing, and in good standing under the laws of the State of Florida; • (1) the Obligor Note has been duly executed and delivered by a party authorized by the Obligor to take such action and is a valid and binding obligation of the Obligor, enforceable in accordance with its terms, except as limited by •bankruptcy and similar laws affecting creditors generally; and (3) the security instruments specified in (B) through (E) above are valid and legally binding obligations, enforceable in accordance with their respective tenant. Attaahmenr 2 Page II of 14 (G) A mortgagee title policy, issued by a company and in a form acceptable to the Secretary, naming the Borrower as the insured party. The policy either included in the definition of the "insured" each successor in ownership of the indebtedness secured'by the Obligor, Leasehold Mortgage -or was.accornpanied by an endorsement of the policy to the Secretary. - (H) A certified survey with a legal description conforming to the title policy and the Obligor Leasehold Mortgage. (I) An appraisal of the Obligor's Leasehold interest in the Property specifying an estimate of fair market value of not less than S31-250.000, The appraisal was completed by an appraiser who was certified by the state and has a professional designation (such as "SRA." or "MAI"), and the appraisal conformed to the standards of the Financial Institutions Reform, Recovery and Enforcement Act of 1989 ("FIRREA") when issued., ('v) Concurrently with the execution ofthis Agreement, Borrower and Assumptor executed a Participation Agreement pursuant to which Assumptor assumed eighty percent (80%) of Borrower's interest in the Obligor Loan and the Collateral therefore. (c) Paragraph 12 is amended by adding at the end thereof the following language; "(f) The Secretary may con-iplete the endorsement of the Obligor Note and record the assign&nts referred to in paragraph 15(b)(iii) and thereby effectuate the transfer- al. the documents referenced and underlying indebtedness from the Borrower to the Secretary or the Secretary's assignee. The Assumptor hereby grants irrevocable consent to any such action by the Secretary. . "(g) The Secretary may exerdise or enforce any and all other rights or remedies (including any and all rights and remedies available to a secured pany under the Uniform Commercial Code) available by law or agreement (including any of the Security Documents, as defined ,in paragraph 15(b)) against the Collateral, against .the Borrower, against the Obligor, or against any other person or property. The Assumptor hereby grants irrevocable consent to any such action by 'the Secretary." (d) The Borrower agrees that it shall promptly notify the Secretary and the Assumptor in writing upon the occurrence of any event which constitutes a default (an "Event of Default") under (and as defined in) any of the Security Documents, as defined in paragraph 15(b). Notification of an Event of Default shall be delivered to the Secretary, at 451 Seventh Street, SW, Washington, DC 204]0, Attention: 'Director, Financial Management Division, Office of the Assistant Secretary for Community Planning and Development. LTpon the occurrence of an Event of Default, the Secretary may (without prior notice or hearing, which Borrower hereby expressly waives), in addition to (and not in lieu of) exercising any and all remedies that may be available under the Security Documents, declare the Notes in Default and exercise any and all remedies available under pararaph 12, subject to the provisions of paragraph 11 (e). This paragraph 15(d) shall not affect the right of the Secretary to declare the Notes in Default pursuant to paragraph 11 and to exercise in cor..nection therewith any and all remedies available under paragraph 12. (e) As of the effective date ofthis Agreement, the Secretary shall treat the Borrower's tiO Attach rent 2 Page 32of14 Pro Rata Share and the Assumptor's Pro Rata Share, respectively, of the outstanding principal balance due an the Note as the arnpunts, respectively, of the Borrower's and the Assumptor's unpaid obligations under the Note for purposes of 24 CFR 570.705(a)(2)(i). • [Rest of this page intentionally left blank) • Attachment ? Page 13 off I1'T WITNESS WREREOF, the undersigned, as authorized officials on behalf of the Borrower, the Assumptor or -the, Secretary, .have executed this Agreement, which shall be effective and shall be dated as of the date of execution by the Secretary, after execution on behalf of the Borrower and the Assumptor, MIAMI-DADE COUNTY FLORIDA BORROWER C �( ( me) Cyrr-l-h ic1. v)• Curry (Title) 4 $1.1au. - , (Signature) (Date) �3/b 7 CITY OF MIAMI FLORIDA ASSUlvIPTOR 3Y: (Name) (Title) (Signature) (Date) SECRETARY OF HOUSING AND URBAN DEVELOPMENT BY: (Name) (Title) (Signature) (Date) • Attachment 2 Page 14 cf 14 ATTACHMENT 3 Description of Real Property The Borrower has inserted the legal description of the Property as defined in paragraph 15(b)(1)(A) in Attachment 3 to the Contract. That legal description has not changed. [Rest of this page intentionally left blank] Attachment l Page 19 of 21 ATTACHMENT "3" Estoppel Certificate Regarding the parrot JunIe Loan and the Section 108 Loan ESTOPPEL CERTIFICATE !Section 108 and Parrot Jungle Loans) THIS ESTOPPEL CERTIFICATE (this "Certificate") is made as of the . day of 2007 by Miami -Dade County (the "County") in favor of the City of Miami (the "City '), pursuant to the. P•articipation-Agreernent between- the County and the City dated , 2007 (the Participation Agreement"). RECITALS 1. On January 9, 2001, the County made a loan to Parrot Jungle and Gardens of Watson Island, Inc., ("Parrot Jungle"), in the original principal amount of Twenty-five Million and No/100 Dollars (525,000,000,00) (the "Parrot Jungle Loan") to finance the development of a botanical garden attraction located at Watson Island. 2. The County funded the Parrot Jungle Loan by virtue of a S25,000,000,00 loan waran.teed by the United States Department of Housing and Urban Development ("USHUD') which was advanced to the County pursuant to the Section 108 Loan Guarantee Program on June 14, 2000 (the "Section 108 Loan''). ' 3. In accordance with the intent of a Joint Participation Agreement between the City and the County dated September 9, 1998, and as authorized by Resolution No. 07- . adopted by the City Commission on July 10, 2007 and Resolution No. 07" , adopted by the Board of County Commissioners on July 24, 2007, the City and the County entered into the Participation Agreement pursuant to which the City will assume eighty percent (80°%) of the outstanding principal bah-ince and future interest on the Section 108 Loan upon satisfaction of certain conditions contained therein, which include the Caunty's execution of this Certificate. •4. One of the conditions set forth in the Participation Agreement is the execution of this Certificate by the County. NOW, THEREFORE, in consideration of the foregoing, and knowing that the City will rely upon the•accuracy'of the information herein contained, the County hereby confirms to the City the following: I. . The Section 108 .Loan: 1. Attached hereto, as Exhibit "A'', are carnplete, true and correct copies of the documents and instruments executed and delivered by the County to HUD in connection with the Section 108 Loan (the "Section 108 Loan Documents"). 2, The Section 108 Loan 'Documents have not been modified, altered or amended, except as provided in the Participation Agreement and the Assumption and Pledge Agreement, as defined in the Participation Agreement. 3. As of the date hereof, there are no: (i) existing or uncured defaults, or (ii) notice of the occurrence of an event of default, or (iii)- occurrence or event or circumstance which, with notice or lapse of time would become a default, under the Section 108 Loan or any of the Section 108 Loam Documents. A.tNrroo TI S-5!E-SaE hi, :L t 4M/E0/8a IL. the rror1un.ie Loan: 1. Attached hereto, ,as Exhibit "B", are cornplete, true and correct copies of the . . documents and instruments executed and delivered by Parrot Jungle andlar Guarantors in favor of the County (the "Parrot Jungle Loan Documents"). 2. The Parrot Jungle Loan Documents have not been modified, altered or amendid, except as provided in the Participation Agreement and the Note Modification Agreement described therein. 3. As of the date hereof, and subject to the provisions of ,Section 4 below, there are no; (i) existing or uncured defaults, or (ii) notice of the occurrence of an event of default, or (ii) occurrence or event or circumstance which, with notice or lapse of time -would become a default, under the Parrot Jungle Loan or any of the Parrot Jangle Loan Documents, 4 The County agrees that it will not, without the City's prior written consent, enforce any terms of the Parrot Jungle Loan Documents with which Parrot Jangle is, as of the elate hereof, not in compliance. The foregoing statement, includes but is not limited to, Parrot Jungle's obligation to make a contribution to the Aviary, as contemplated in the Development Agreement, a copy of which is enclosed as part of Exhibit "B " IN WITNESS WHEREOF, the Counry has caused this Agreement to be executed as of The date ser forth above. Attest MIAMI DADE COUNTY By: Clerk, Board of County Commissioners Approved as to form and legal sufficiency: By Shannon D. Summerset .2- By: t eorge M. Igess County Manager ATTACH 3 -'Estoppel on PJ and Seaton 108 Loans S0/6EE �7d Lela ii'v A NFIQD T'i5-SLE-Sn ' LT Len/ED/80 STATE OF FLORIDA ) SS: COUNTY OF MIAMI-DADE ) Th foregoing instrument was acknowledged before me this —S day of 2007 as Ablif,Ff Miami -Dade Cowl y, cin behalf of the county. IN WITNESS WHEREOF, I have hereunto set my hand and seal in the County and State fortsaid. 11f2.14 /71.87,4,,, Type, Print or &ram? Name Juccrri AMDE MY C.OMMIZIOH CO 3$3a64 EAPRES: timrenbor12, 2"443 evrom rmv PleXY kliChlwinietam ATTACH 3 - Estoppel on PJ and Seccon 108 Loans 9a/t7e 35.md laN8011V AINMO TI.?-se:e7Pac: PZ:Li Lop:./Ee/ao EXHIBIT A SECTION. 108 LOAN DOCUMENTS ATTACH 3 - Estoppel on PJ and Sectors 108 Loans niso 39va A21:4?:ioliv ?Imo: TT3S-SLE-;BC 1/Z1, :47 40n/E@/80 EX nBrT "8" PARROT SEJNCLE LOAN DOCUMENTS ATTACH 3 - Essoppel on P3 and 5ecton i GB Loans /.314eE0LL/ A!Nricri TI9S--5LE-20E t78 =LT L.13 Z•/E0/90 CERTIFICATION FROM COUNTY MANAGER ON THE LOAN DOCUMENTS BEING DELIVERED TO THE CITY OF MIAMI Pursuant to Section 3.1 of the Participation Agreement between Miami Dade County and the City of Miami, dated 5, 3, Lai , I hereby..certify that the loan document as set forth below being delivered to the City represent complete, true and correct copies of a]i such. documents. $25,000,000 Section 108 Loan • US Departrn.ent of Housing and Urban Development Contract • Modification of Mortgage • Assignment of Florida Leasehold Mortgage, Assignment of Leases and Rents and Security Agreement • Florida Leasehold Mortgage, Assignment of Leases and Rents and Security Agreement • Joint Participation Agreement between Miami -Dade County and City of Miami for the Parrot Jungle and Gardens of Watson Island, Inc Section 108 Loan Guarantee Application • Mortgage Subordination Agreement • US HUD Fixed Rate Note for Series 2000-A Certificates • Promissory Note • Continuing Guaranty for Bern and Mary Levine • Amendatory Ao eernent • Development Agreement between Miami -Dade County and Parrot Jungle and Gardens of Watson Island, Inc and the City of Miami • S1,500,000 Forgivable Loan • Loan Agreement • Promissory Note S1,000,000 Loan • Loan Agreement • Promissory Note • Amendment to Promissory Note • Continuing Guaranty for Bern and Mary Levine $4,701,782 Loan • Loan Agreement • Promissory Note • Continuing.Guaranty for Bern and Mary Levine Dated this'4fa Day of Attest y: ler hoar aunty ornmis„ •- s i /_, ` `-p 4..,MIAMI-DADE COUNTY S 0 111 r CO iit Approved as,to forrn.and legal sufficiency: • B S 9annon D. Sur unerset :�• , Burgess ount Manager' Aaachment Page 20 of 21 ATTACHMENT "4" Estoppel Certificate R.eaarding the Other Loans ESTOPPEL CERTIFICATE (County Outstanding Loans) THIS ESTOPPEL CERTIFICATE (this "Certificate") is made as of the 3 day of , 2007 by M•iarni-Lade •County'(the "County") in favor of the City of Miami {the "City"), pursuant to the Participation Agreement between the County and the City dated , 2007 (the Participation Agreement"), RECITALS 1. On January 9, 2001, the County made a Joan to Parrot Jungle and Gardens of Watson Island, Inc., ("Parrot Jungle"), in the original principal amount of Twenty-five Million and Na/100 Dollars ($25,000,000.00) (the "Parrot Jungle Loan") to finance the development of a botanical garden attraction located at Watson island. 2. The County funded the Parrot Jungle Loan by virtue of a $25,000,000.00 loan guaranteed by the United States Department of Housing and Urban Development ("UST -IUD") which was advanced to the County pursuant to the Section 108 Loan Guarantee Program on June 14, 2000 (the "Section 108 Loan"). 3. In accordance with the intent of a Joint Participation Agreement between the City and the County dated Septernber 9, I998, and as authorized by Resolution No• 07- , adopted by the City Commission on July 10, 2007 and Resolution No. 07 , adopted by the Board of County Commissioners on July 24, 2007, the City and the County entered into the Participation Agreement pursuant to which the City will assume eighty percent (80%) of the outstanding principal balance and future interest on the Section 108 Loan upon satisfaction of certain conditions contained therein, which include the County's execution of this Certificate, 4. One of the conditions set forth in the Participation Agreement is the execution of this Certificate by the County. ' NOW; THEREFORE, in consideration of the foregoing, and knowing that the City will rely upon the accuracy of the information herein contained, the County hereby confirms to the City the following: The Loans: As of the date hereof there are three (3) outstanding loans made by the County to Parrot Jungle, excluding the Parrot Jungle Loan (the "County Outstanding Loans"), as follows; (a) $1.5 Million Forgivable Loan (b) $1 Million Loan (c) $4.7 Million Loan II. The S1.5 Million Forgivable Loan: I. Attached hereto, as Exhibit "A", are complete, true and correct copies of the documents and instruments executed and/or delivered by the Parrot Jungle to the County in connection with the S1.5 Million Forgivable Loan (the "$1.5 Million Forgivable Loan Documents"), 2, The S1.5 Million Forgivable.Loan Documents have not been modified, altered or amended, except as follows: (a) Pursuant to the Participation Agreement the County agrees not to enforce any payment obligation of Parrot Jungle thereunder without the prior written consent of the City. 3. As of the date hereof, the outstanding bal-ande of the $1.5 Million Forgivable Loan is: S1,050,000.00, consisting of S1,050,000 of principal and $0 interest from through the date hereof. Payment of the S1,5 Million Forgivable Loan is made at $I50,000.00 per year starting with Sept. 3, 2004 through September 3, 2013 by the County so long as Parrot Jungle is not in default in any of its obligations per the Developrnent•Agreement, The County agrees not to enforce any payment obligation of Parrot Jungle without the prior consent ,of the City, as provided in the Participation Agreement, 4. As .of the date hereof,'there are no unwaived: (i) existing or uncured defaults, or (ii) notice of the occurrence of an event of default, or (iii) occurrence or event or circumstance which, with notice or lapse of time would become a default, under the $1.5 Million Forgivable Loan, or any of the loan documents evidencing or securing said loan.. III, The S1 Million Loan: 1. Attached hereto, as Exhibit " E are complete, true and correct copies of the documents and instruments executed and/or delivered by the Parrot Jungle to the County in connection with the ,$1 Million Loan (the "S1 Million Loan Documents"). 2. The Si Million Loan Documents have not been modified, altered or amended, except for the County's agreement not to enforceany payment' obligation. of Parrot Jungle thereunder without•the prior consent of the City,. as provided in The Participation Agreement. 3. As of the date hereof, the outstanding balance of the SI Million Loan is: S981,940,04, consisting of S945,041.49 of principal and $36,898.56.interest from Sept 2005 through July 2007, Payment is deferred until September 3, 2013, when a•balloon payment in the total outstanding amount, including all outstanding principal and accrued interest, shall be due. The County agrees not to enforce any payment obligation of Parrot Jungle 'without the prior consent of the City, as provided in the Participation Agreement. 4, As of the date hereof, .there are no unwaived; (i) existing or uncured defaults, or (ii), notice of the occurrence of an event of default, or (iii) occurrence or event or circumstance which, with notice or lapse of time would become a default, under the $1 Million Loan or any of the loan documents evidencing or securing said loan. '-2- PJ ATTACH 4 - Estoppel on County Loans 822007 Attest IV. The $4.7 Million Loan I. Attached hereto, as Exhibit "C", are complete, true and correct copies of the documents and instruments executed and/or delivered by the Parrot jungle to the County in connection with the $4:7 Million Loan (the'"$4.7 Million Loan•Documents")• 2. The $4.7 Million Loan Documents have not been modified, altered or amended. 3. As of the date hereof, the outstanding balance of the $4.7 Million Loan is: $4,701,782.00, consisting of $ 4,701,782.00 of principal and $0 interest from July 2006 through July 1, 2014. Payment of the $4.7 Minion Loan is to commence in July 1, 2014 for $804,000 For 7 payments through July 2020. The County agrees not to enforce any payment obligation of Parrot Jungle without the prior consent of the City,. as provided in the Participation Agreement • 4, As •of the date hereof, there are no-unwaived:.(i) existing or uncured defaults, or (ii) notice of the occurrence of an event of default, or (iii) occurrence•or event or circumstance which, with notice or lapse of time would become a default, under the $4.7 Million Loan or any of the loan documents evidencing or securing said loan., IN WITNESS WHEREOF, the County has caused this Agreement to be executed as of the date set forth 1.1? uey,•n... , a °u COA1i.R,,7• c"'UNrY art g ar ��f" ^ _. ,.. rnel MLA.MI DADE COUNTY B CC ..0 . G.�'r B y: Clerk ' carp of °unty ; - George . urgers • one rs Count Manager Approved as to form and legal sufficiency: By: Shannon D Surrimerset STATE OF FLORIDA ) SS: COUNTY-OFMIAMI-DARE ) -3- P3 ATTACH 4 - Estappek on County 'Loans 822007 The foregoing in.stqlmenit -was acknowledged before me this 3 day of , 2007 by f tek,.- 1r ayws , as„ ri)v-z._ . of Miami -Dade Coun�€y, on behalf of the county. J IN WITNESS WHEREOF, I have hereunto -set my hand and seal in the County and State aforesaid. (<1;;/" -- No ar-yublicg 1 del ' Type, Print or Stamp Name -4- JUDITH MCBt 1DE MY COMMISSION k DO 363BM E Edi,yehxx NotitY .PJ ATIAC-I 4 - Estoppel on County. Loans $77D.0.7. EXHIBIT A. THE S1.5 MILLION FORGIVABLE LOAN DOCUMENTS PJ.AT-I-ACI-1 4.—Es toppe).on County Loans 822007 .. EXHIBIT "B" THE $I MILLION LOAN DOCUMENTS ATTACH 4 - .Estoppel on County Loans 822007 • EXHIBIT C THE S4.7 MILLION LOAN DOCUMENTS PJ ATTACH 4 - Estoppel an County Loans 822007 Attachment 1 Page 21 of 21 ATTACHMENT "5" Amendment to Development Agreement AMENDMENT TO DEVELOPMENT AGREEMENT THIS AMENDMENT TO DEVELOPMENT AGREEMI NNT (this "Agreement") is entered into as of the 3 day of August , 2007, by and between PARROT JUNGLE AND GARDENS OF WATSON ISLAND, INC., a Florida corporation and PJG WATSON, L.L.C., a Florida limited liability company (referred to jointly as "Maker"), MIAMI-DADE COUNTY, FLORIDA, a political subdivision of the State, of Florida (the "County'), and the CITY' OF MIAMI, a municipal corporation of the State of Florida (the "City") to modify the terms of repayment of the Parrot Jungle Loan and payment of the Aviary contribution as setforth herein; RECITALS; 1, On January 2, 2001, the County made a loan to Maker, in the original principal amount of Twenty-five Million and No/100 Dollars (S25,000,000,00) (the "Parrot Jungle Loan") to finance the development of a botanical garden attraction located at Watson Island. 2, The County funded the Parrot Jungle Loan.by virtue of a S25,000,000,00 loan guaranteed by the United States Department of Housing and Urban Development ("USHUD") which was advanced to the County pursuant to the Section 108 Loan Guarantee Program. on June 14, 2000 (the "Section 108 Loan"). 3. The Parrot Jungle Loan was evidenced by a Promissory Note (the "Note") dated January 9, 2001 and executed by Maker. 4, Pursuant to the terms of the Note; repayment terms of the Parrot Jungle Loan were set forth in a Development Agreement among Parrot Jungle and Gardens of Watson Island, Inc., the County, and the City dated April 20, 2000, and amended by the Amendatory Agreement dated August 25, 2003 (the "Development Agreement"). 5. .At the request of Maker, the County has agreed to modify the repayment terms of the Parrot Jungle Loan as set forth in the Development Agreement, 6. • The Maker has requested that Maker's obligation to make payments on the Parrot Jungle Loan from August 1, 2006, through an including the payment due on August 1, 2011 be deferred through February 1, 2012 (the " Leferral Period"). 7. In order for the County and City to grant the Maker's request to defer payments on the Parrot Jungle Loan, the County and City must make payments to USHUD on the Section 108 Loan, as they become due, during the Deferral Period. 8. Pursuant to the terms of a Participation Agreement entered into between the County and the City and dated on even date herewith, the County and the City have made and plan to make, according to their respective pro rata shares, the payments due cn the Section 108 Loan c©mrnencing.with the payment due to USH'UD on August 1, 2006 and continuing through and including the payment due on August 1, 2011. 9. _ . Tt_is estimated that,,if the .County and the City make all of the scheduled payments due on the Section 108 Loan during the Deferral Period, the County and City will have made payments an Maker's behalf totaling 517,277,403 (the "Deferred Amount"). 10, Under the terms of the Development Agreement Maker promised to rnake payments totaling $2 million to the Aviary at Metro Zoo .beginning in year five of the Parrot Jungle Loan and continuing through year twelve (the "Aviary Payments"), 11. Maker has not made the required Aviary Payments and has requested the County to defer this payment until the date that al! of Maker's obligations hereunder became due and payable. 12. in accordance with the terms ofthe Development Agreement, which require the City to consent to any changes in the Development 'Agreement, the City hereby consents to the modification of the repayment terms of the Parrot Jungle Loan as set forth in the Development Agreement and is joining in the execution of this Agreement as evidence of its consent, • 13, The Continuing Guaranty given by Bernard M. Levine and Mary Levine in connection with the .Parrot Jungle Loan shall continue throughout the terra of the Parrot Jungle Loan but, shall extend to the Deferred Amount on,y as to Bernard M. Levine and not as to Mary Levine. NOW, THEREFORE, for and in consideration cif the foregoing and the mutual • covenants and agreements set forth herein, the parties hereby covenant and agree: I, Section 1.1 of the Development Agreement setting forth the tears of the repayment of the Note, is amended as follows: (a) Notwithstanding anything in the Development Agreement to the contrary, Maker's obligation to make payments of principal and interest cn the Parrot Jungle Loan from (and including the payment due on) August 1, 2006 through the payment due an August .1, 2011 (the Deferral Period") is hereby deferred until August 1, 2019, All amounts due during the Deferral Period, in the approximate sure of S17,277,403 (the "Deferred ,Amount"), shall be payable as provided in subsection (c) below. (b) Commencing on February 1, 2012, Maker shall begin making payments on the Parrot Jungle Loan in the amounts, and -on the dates, set forth in the amortization schedule attached hereto as Exhibit "A" and made a part of this Agreement (the "$25 Million Loan Amortization Schedule"). (c) The Deferred Amount, shall become due and payable an August I, 2019, but Maker shall have the option to extend the payment of the Deferred Amount over a period of 10 years; by giving written notice to the County of its election to do so, by not 2 later than February 1, 2019. If Maker elects to extend the payment of the Deferred Amount in accordance with this section, then commencing an August 1, 2019 the unpaid balance of the Deferred Amount will bear interest at the rate of 5% per annum, and shall be payable as follows: (i) The first payment of principal and interest shall be due and payable on January 1, 2020, in the total sum of $352,957.97. (ii) Commencing on February 1, 2020, and on the first day of each month thereafter, through and including January 1, 2030, Maker shall make, equal monthly payments of principal and accrued interest in the amount of S153,233,6 7. (iii) The remaining unpaid principal balance, if any, together with all accrued and unpaid interest shall be due and payable in full on January 1, 2030 Section 9.1 of the Development Agreement, providing for the Aviary Payments, is hereby amended to (i) defer Maker's obligation to make the required Aviary Payments until the date that all of Maker's obligations under this Agreement become due and payable, including payment of the Deferred Amount over a 10 year period, if Maker so elects, and (ii) require that the Aviary Payments, in the total sum of S2 million, be made in a lump surn not later than August 1, 2020. County covenants that it will not seek to enforce Maker's obligations under this section, by legal action, until Maker has paid all sums due under the Note, including the Deferred Amount, as modified in this Agreement. 2" Except as expressly modified by this Agreement, the Note, the Development Agreement (as previously modified by the Amendatory Agreement) and the other Loan Documents shall remain in, full force and effect in accordance with their terms. In the .case of any inconsistencies or conflict between the provisions of this Agreement and those agreements, the terms of this Amendment to Development Agreement shall prevail. • 3, This Agreement shall bind and inure to the benefit of the heirs, executors, administrators, successors and assigns of the parties to this Agreement, 4. This Agreement being modified is to be construed and enforced in accordance with the laws of the State of Florida and the law and regulations of the United States of Arnerica. In the event of conflict between Florida law and the lativ and regulations of the United States of America, the law and regulations of the United States of America shall govern. THE PARTIES, JOINTLY AND SEVERALLY, HEREBY KNOWINGLY, "VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EACH MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON THIS AGREEMENT, OR ARISING OUT OF, UNDER OR fN CONNECTION WITH THIS AGREEMENT AND ANY AGREEMENT • ,CONTEMPLATED• TO BE EXECUTED IN CONJUNCTION WITH THIS AGREEMENT, OR ANY, COURSE OF CONDUCT, COURSE OF DEALING, 3 . STATEMENTS, WHETHER VERBAL OR WRITTEN; OR ACTIONS OF EITHER PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES TO ENTER INTO THIS AGREEMENT. IN WITNESS WHEREOF, the parties have execited .this Agreement the day and year first above written. PARROT JUNGLE AND GARDENS OF WATSON ISLAND, INC., a Florida corporation By: Name: Berd M. Levine Title: President [Corporate Seal] PJG WATSON, L.L.C., a Florida limited liability company .Sy:. Name: Bernard M. Line Title: Manager [Corporate Seal] Approved as to forin and substance: Print Nye: Title: Approved as to fox and substance: Print Name: Title: MIAMI-DADE COUNTY CITY, OF MIAMI By: City Manager 5 ammeter= con meat BOAR try COW/70:WITs xa Aat/01-11ADZ GOvTM:C ;lF RIDA Date: July 7, 2011 M[AMFdAt� Memorandum u y To: Honorable Chairman Joe A. Martinez and Members, Board of aunty Commissioners From: Aline T. Hudak County Manager .f Resolution No. R-531- �.. `� �� Subject: Resolution Authorizing Refinance of the US HUD Section 108 Promissory Notes for Loan Guarantee Assistance r Agenda Item No. 8 (K) (a.) (A) Recommendation It is recommended that the Board of County Commissioners (Board) adopt the attached resolution authorizing the County. Mayor or the County Mayor's designee to refinance the Section 108 Loans between Miami -Dade County (County) and US Department of Housing and Urban Development (US HUD) whenever US HUD offers refinancing opportunities provided that the refinancing generates net present value savings of five percent or more (inclusive of issuance and other costs to refinance) and the final maturity of the refinancing is not longer than the current maturity. US HUD periodically offers a Section 108 borrower, like the County, an opportunity to refinance outstanding debt; however, time is of the essence as the timeframes to take advantage of these offers are typically very short. This resolution authorizes the County Mayor or County Mayor's designee to refinance these loans provided it is in the best interest of the County and that there is a net economic benefit to the County, and to report to the Board when such transactions occur. Refinancing the existing Section 108 US HUD debt Certificates will result in significant Interest savings to the following loan portfolios: 1. Parrot Jungle Gardens and Watson island (Series HUD 2000-A) 2, Targeted Urban Areas (TUA) Revolving Loan Fund (Series HUD 2001-A, Series HUD 2004-A, and Series HUD 2006-A), and 3. Brownfield Revolving Loan Fund (Series HUD 2001-A), Staff will provide the Board with a report with the details of the transactions when any of these loan portfolios are refinanced. Scope The scope of this Item is countywide. Miami -Dade County's Section 108 loan portfolio comprises commercial loans made to businesses located throughout Miami -Dade County. Fiscal Impact/Funding Source The current Section 108 portfolio includes three separate loan portfolios within Miami -Dade County's Section 108 Loan Guarantee Program with an initial principal value of $54 million of which $37 million in principal is outstanding, Miami -Dade County entered into loan agreements with US HUD for Section 108 funds to support comrercial growth activities countywide and is required to make the debt service payments to US HUD. The attached Table 1 summarizes the three Section 108 loan portfolios. The principal and interest on the new notes said shall be payable from the repayments of the outstanding Section 108 loans. If the County refinances these loans in accordance with the net present value savings required under this resolution, the County will realize significant savings in interest payments on these loans. From time to time, US HUD offers the opportunity for Section 108 borrowers to refinance their Section 108 loans. Background The Section 108 Loan Guarantee Program is authorized under the Housing and Community Development Act of 1974 as part of the Community Development Block Grant (CDBG) Program and Honorable Chairman Joe A. Martinez and Members, Board of County Commissioners Page 2 offers local governments a source of financing for economic development, large-scale public facility projects, and public infrastructure. US HUD sells bonds on the private market and use the proceeds to fund Section 108 loans through state and local governments. The local government may loan the funds, which must be repaid to US HUD, to third parties to undertake eligible CDBG activities (typically economic development). US HUD uses future CDBG allocations to jurisdictions as secondary security (loan guarantee) for the loan to the local government. From time to time, US HUD offers recipient jurisdictions an opportunity to refinance outstanding debt,_.but the timeframe to take advantage of these offers are typically very short. Given the time required for legislative approval and negotiations between the parties, this item will authorize staff to refinance these loans provided that there is a net economic benefit to the County with net present value savings of five percent or more as required under this resolution and Resolution R-1313-09. It is important to note that in the case of the Parrot Jungle Gardens and Watson Island (Series HUD 2000-A) loan, the refinancing will also require the prior input and negotiations with the City of Miami, Staff will report with the details of the transactions to the Board, including the net present value savings of the refinancing and the final maturity, The following is a background on the three loan portfolios. Parrot Jungle Gardens and Watson Island In the fall of 1997, Miami -Dade County was approached by Parrot Jungle Gardens and Watson Island (PJG), now known as Jungle island, for the purpose of seeking financial assistance through the US HUD Section 108 Loan Program. The assistance was being requested to facilitate the relocation of the PJG attraction from its long-time home in South Dade to a new location on Watson isfand in the City of Miami. Miami -Dade County obtained a $25 million US HUD Section 108 Loan to make a loan to PJG for the relocation and expansion of the attraction. in addition to its collateral for the loan to PJG, the County has, as required by US HUD, pledged its current and future CDBG funds as the ultimate source of repayment for this obligation. However, the BCC directed that no CDBG funds can be used to address the none payment from PJG to the County for the Section 108 loan. As the BCC is aware, the County and PJG have entered into agreements for the repayment of funds the County has advanced on behalf of PJG. In addition, the County, City and PJG signed a Joint Participation Agreement agreeing that the County and City would repay this loan to US HUD on a 20 percent to 80 percent proration, respectively through August 2011. As such, the refinancing of this loan portfolio will require that the County amend or execute agreements with US HUD and the City. TUA Revolving Loan Fund Through the adoption of Resolution R-1318-97, $40 million of Miami Dada County's Section 108 Loan program was reserved for the exclusive use and purpose of implementing the Task Force on Urban Economic Revitalization's (UERTF) Urban Economic Revitalization Plan that would generate and benefit urban economic development within the County's designated TUAs. Subsequent to the adoption of the Resolution and the preparation of the UERTF's initial Urban Economic Revitalization Plan, the Board adopted Ordinance 99-94 which authorized the submission of an application to USHUD for a Section '108 Loan in the amount of $40 million for the sole purpose of creating a revolving loan fund. Based on the pledge of the County's CDBG allocation, the eligibility requirements for projects to be funded through the TUA revolving loan fund were designed to limit the County's participation under the program to the most appropriate and viable projects in need of "gap" financing. Eligible uses of the funds Included the purchase of machinery and equipment, real estate or Tong -term working capital. The maximum loan amount per project could range up to an amount not to exceed 20 percent of total project costs or $5 million. Loans were limited to businesses operating within or planning to operate within the TUAs. Honorable Chairman Joe A. Martinez and Members, Board of County Commissioners Page 3 Due to initial expressions of interest in obtaining funding through the RLF from the community, the County requested an initial draw down on August 10, 2001 for $10 million. The County drew down an additional $6.3 million and $10.303 million for a total of $16,603 million, from the US HUD Section 103 Program, While these notes are not currently available to be refinanced, it is recommended that the BCC authorize the County Mayor or the County Mayor's designee to initiate and undertake the refinancing process of the Section 108 Loans between the County and US HUD to retire existing debt for Series 2004-A and 2006-A Certificates as the opportunity becomes available. As mentioned above, the County will take the opportunity to refinance the Section 108 loan portfolio only if the County can generate net present value savings of five percent or more, inclusive of issuance and other costs to refinance. Brownfield Revolving Loan Fund On July 27,1999, Ordinance No. 99-95 authorized the County Manager to apply to the US Department of Housing and Urban Development for a Section 108 Loan Guarantee to provide affordable fixed rate financing to qualified eligible borrowers for site clean-up, rehabilitation and redevelopment of Brownfield sites. The County was awarded a $5,000,000 loan, with a grant of $1,750.,000. On August 9, 2001, the County drew down $2,500,000 as well as $1,100,000 in grant funds, to be used as an interest reserve for the Loan Fund. Additional Information The following conditions apply if the BCC chooses to participate in the US HUD upcoming debenture offering: • The new promissory note will not be pre -payable for the remaining period of the loans, but they can be defeased at any time. • The County will have to pay issuance costs on the new Loans, which Mil probably be in the range of 0.5 of one percent of the loan amounts; the County can use CDBG funds to pay these costs. • Fundamental terms of the new promissory notes must be exactly the same as the existing promissory notes (for example, the principal payment schedules will remain the same and the security provisions of the existing notes will apply tc the new notes). • If these Section 108 Notes were issued to third -party borrowers, the County should discuss the refinancing option with the third -party entities and see if the option will work for all parties, • n enable the refinancing, the County may need to defease the existing note by depositing cash is with the Section 108 Trustee sufficient to pay all amounts due. Assistant Cou onager 3 Section 108 Lean Portfolio Parrot Jungle Gardens and Watson Island (Series HUD 2000-A) TUA Revolving Loan Fund (Series HIJD 2001-A) Brownfield Revolving Lean Fund (Series HUD 2001•A) TUA Revolving Loan Fund (Series HUD 2004-A) Original Principal Original Interest2 Tatal Original Pal L Retraining Principal Remalninp Interest2 Remaining P&I $25,000,000 25,046,602 $50,046,602 $15,560,000 5,513,842 $21,073,842 $10,O00,000 6,738,514 $16,738,514 $6,274,000 1,791,378 $7,665,378 $2,5OO,000 1,896,475 $4,196,475 $1,327,CO0 456,619 $1,783,619 TLIA Revolving Loan Fund (Series HUD 2006-A) Total $6,300,ao0 5,102,565 $11,402,565 $1O,303,000 $54,103,000 7,665,338 46,249,494 $17,958,338 $100,352,494 $5,600,0O0 2,511,530 $8,111,530 $9,853,009 4,940,751 $37,614,000 15,214,120 $14,793,751 1— The $6.3 million in Series HUD 2004-A will 6e eligible for refinancing in 2014 and $1 Q 3Q3 million in Series HUD 2006-A will be eligible in 2016. 2— Remaining principal and interest payments assume all payments beginning February 1, 2012. $52,828,120 MEMORANDUM ('tevised) TO: Honorable Chairman Joe A. Martinez DATE; and Members, Board of County Commissioners FROM: R. A. Cuevas, Jr. County Attorney Please note any items checked. July 7, 2011 SUBJECT; Agenda Item No. 8 (K) (1) (xs ) "3-Day Rule" for committees applicable if raised 6 weeks required between first reading and public hearing 4 weeks notification to municipal officials required prior to public hearing Decreases revenues or increases expenditures without balancing budget Budget required Statement of fiscal impact required Ordinance creating a new board requires detailed County Manager's report for public hearing No committee review Applicable legislation requires more than a majority vote (Le., 2/3's 3/5's , , unanimous ) to approve Current information regarding funding source, index code and available balance, and available capacity (if debt is contemplated) required Approved Mavor Agenda Item No. 8(K) i1) (A) Veto Override RESOLUTION NO. R-531-11 RESOLUTION AUTHORIZING THE COUNTY MAYOR OR COUNTY MAYOR'S DESIGNEE TO INITIATE AND UNDERTAKE THE REFINANCING PROCESS FOR THE EXISTING SECTION 108 LOANS BETWEEN MIAMI-DADE COUNTY AND THE UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT AS THE OPPORTUNITY BECOMES AVAILABLE GIVEN THE REFINANCING GENERATES NET PRESENT VALUE SAVINGS OF FIVE PERCENT OR MORE AND FINAL PROPOSED MATURITY IS NOT LONGER THAN CURRENT MATURITY; AUTHORIZING THE COUNTY MAYOR OR COUNTY MAYOR'S DESIGNEE TO EXECUTE ANY NECESSARY AGREEMENTS WITH US HUD, CITY OF MIAMI, AND OTHER PARTIES WHEREAS, it is in the best interest of the County to refinance the existing Section 108 loans accompanying the Contracts for Loan Guarantee Assistance with the US Department of Housing and Urban Development (US HUD); and WHEREAS, this Board desires to accomplish the purposes outlined in the accompanying memorandum, a copy of which is incorporated herein by reference, NOW, THEREFORE, BE IT RESOLVER BY THE BOARD OF COUNTY COMMISSIONERS OF MIAMI-DADE COUNTY, FLORIDA, that this Board authorizes the County Mayor or the County Mayor's designee to initiate and undertake the refinancing of the Section 108 loans, accompanying the Contracts for Loan Guarantee Assistance between Miami -Dade County and US HUD as the opportunity becomes available provided the refinancing generates net present value savings of five percent or more, inclusive of issuance and other costs to refinance, and the final maturity of the refinancing is not longer than the current maturity; authorizes the County Mayor or County Mayor's designee to execute any necessary agreements with US HUD, the City of Miami, and other parties; authorizes the County Mayor or (4, Agenda Item No. 8(K) (1)(A) Page No. 2 County Mayor's designee to pay issuance or other costs to refinance using the County's Community Development Block Grant (CDBG) fiords, CDBG program income, or funds from other parties with an interest in the respective Section 108 loans. The foregoing resolution was offered by Commissioner Barbara J. Jordan who moved its adoption. The motion was seconded by Commissioner jue ,iviartinez and upon being put to a vote, the vote was as follows: Joe A. Martinez, Chairman M. Edmonson, Vice Chairwoman Audrey Bruno A. Barreiro Esteban L. Bovo, Jr. Sally A. Heyman Jean Monestime Rebeea Sosa Xavier L. Suarez aye aye absent aye aye absent Lynda Bell Jose "Pepe" Diaz Barbara J. Jordan Dennis C. Moss Sen, Javier D. Souto aye aye aye aye aye aye aye The Chairperson thereupon declared the resolution duly passed and adopted this 7th day of July, 2011. This resolution shall become effective ten (10) days after the date of its adoption unless vetoed by the Mayor, and if vetoed, shall become effective only upon an override by this Board. Approved by County Attorney as to fotiit and legal sufficiency. Brenda Kuhns Neuman 0 HARVEY RUVIN, CLERK eal MIAMI-DADS COUNTY, FLORIDA BY ITS BOARD OF COUNTY COMMISSIONERS By: Christopher Agrippa Deputy Clerk