94-21122 RESO Incomplete
RESOLUTION NO.
94-21122
A RESOLUTION OF THE MAYOR AND CITY COMMISSION
OF THE CITY OF MIAMI BEACH, FLORIDA, AUTHORIZING
THE MAYOR AND CITY CLERK TO EXECUTE A GROUND
LEASE AGREEMENT BETWEEN THE CITY OF MIAMI BEACH
AND THE MIAMI CITY BAllET, INC., A FLORIDA NOT FOR
PROFIT CORPORATION, FOR THE PROPOSED MIAMI CITY
BAllET HEADQUARTERS ON CONVENTION CENTER
DRIVE; AND FURTHER AUTHORIZING A WAIVER OF THE
ADVERTISED PUBLIC BIDDING PROCESS AND OF AN
INDEPENDENT APPRAISAL OF THE FAIR MARKET RENTAL
VALUE OF THE PROPERTY.
WHEREAS, the Mayor and City Commission has conceptually agreed to provide a
site on City owned property for the proposed Miami City Ballet headquarters on
Convention Center Drive; and
WHEREAS, the City Attorney's Office and the Administration have negotiated the
Ground Lease Agreement (the Agreement) with the Miami City Ballet, attached and
incorporated hereto as Exhibit "A"; and
WHEREAS, pursuant to Ordinance No. 92-2783, which establishes certain
procedures for the sale and/or lease of City property, a duly advertised public hearing was
held on April 13, 1994, in order to obtain citizen input into the proposed Agreement; and
WHEREAS, it is further requested that the Mayor and City Commission, waive, by a
S/7ths vote, the additional requirements under Ordinance No. 92-2783, requiring an
advertised public bidding process pursuant to the sale and/or lease of City property, and an
independent appraisal of the fair market or rental value of the property.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COMMISSION
AS FOllOWS:
1. Following a duly advertised public hearing held on April 13, 1994, to obtain
citizen input as to the proposed Ground Lease Agreement between the City
and Miami City Ballet, the Mayor and City Commission herein approve the
attached Agreement, and the Mayor and City Clerk are herein authorized to
execute same.
2. The Mayor and City Commission further waive, by a 5/7ths vote, the
requirements under Ordinance No. 92-2783 calling for an advertised public
bidding process prior to the proposed lease transaction, as well as an
independent appraisal of the fair market rental value of the proposed leased
property.
PASSED and ADOPTED this 13th
day oil April
f
i
ATTEST:
,1994.
(I
I.
~~cd
CITY CLERK
R]Adsk2\a:\CityBall.res(4-12-94)
Date
CITY OF
MIAMI BEACH
CITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH FLORIDA 33139
COMMISSION MEMORANDUM
TELEPHONE: (305) 673-7010
FAX: (305) 673.7782
NO. ';2..'11..-94 Af:Vl s~ D
OFFICE OF THE CITY MANAGER
FROM:
Mayor Seymour Gelber and
Members of the City Commission
Roger M. Carttnl. (\ A ~
City Manager ~
DATE:
April 13, 1994
TO:
SU~ECT: APPROVAL O~ GROUND LEASB AGRBBKBNT WITH THB MIAMI CITY
BALLBT, INC.
ADMINISTRATION RBCOMXBNDATION:
The Administration recommends the City Commission approve a Ground
Lease Agreement between the City of Miami Beach and Miami City
Ballet in order to allow the organization to submit a grant
application to the state of Florida by the April 13, 1994,
deadline.
BACKGROUND:
At the January 19, 1994, Commission meeting, the Miami City Ballet
presented the proposed Miami City Ballet building to be developed
in the City Center Plaza east, of City Hall. The commission
endorsed the designation of the site and recommended approval of
the project by the Tourist and Convention Center Expansion
Authority. On February 15, 1994, the Miami City Ballet made the
same presentation to the Tourist and Convention Center Expansion
Authority (TCCEA) for approval of TCCEA funds in the amount of $2.5
Million from the release of bond reserves, to be committed for the
construction of the building. The TCCEA committee conceptually
approved the project. Since that date, the Administration and the
City Attorney have been negotiating a Ground Lease Agreement with
the Miami City Ballet. The area to be leased is reflected in the
attached survey; however, the alignment of the rebuilt Convention
Center Drive will change slightly and the revised legal description
will be submitted to the City commission in the future.
The following are the main terms of the Ground Lease Agreement
between the Miami City Ballet and the City of Miami Beach:
.
Initial term of the lease is fifty-one (51) years with two (2)
24-year options. The initial 51 year term is required by the
State so that the Ballet is able to receive grant monies
applied toward construction. The Administration is in the
process of verifying this issue.
.
Miami City Ballet will lease the site at a nominal cost of
$100 per year.
The improvements are for the use of the Miami City Ballet as
a dance pavilion, school, and may also include auxiliary uses,
such as a dance museum, gift shop, and dormitories.
.
.
Within six (6) months of execution of the Ground Lease, the
Administration and Miami city Ballet will negotiate a
Construction Agreement. Such Construction Agreement will
specifically define the terms, conditions and timelines for
construction of the facility. The Construction Agreement will
be presented to the City Commission for approval.
AGENDA
ITEM
1
DATE
R-3~A
4 - r3-9Y
. Miami City Ballet will be responsible for all taxes, if any,
on the facility. Additionally, the Miami City Ballet will be
responsible for all utilities, special assessments,
operational costs and maintenance of the facility.
. At the end of the lease term, or in case of default, the City
of Miami Beach retains the building and all permanent
fixtures.
. The Lease specifies the building is to be used only by Miami
city Ballet. Any assignment or subletting of the Lease
requires prior approval by the City. In the event of
assignment to a for-profit entity, the Lease will be
renegotiated at fair market value.
. Miami City Ballet will be required to maintain insurance,
obtain permits, and apply for any variances necessary to
construct the facility.
. Miami City Ballet will hold at least twenty (20) of their Dade
County performances at the Jackie Gleason Theater of the
Performing Arts. Wi thin five (5) months from execution of the
Lease, 'the City and the Ballet will negotiate and execute a
Performance Agreement for the utilization of TOPA.
. Upon execution of the Lease, Miami City Ballet will submit a
letter stipulating the commencement and ending dates for
construction. Should the project commencement not occur
timely, the lease will terminate.
. The City of Miami Beach will maintain the exterior landscaping
and surrounding areas of the facility.
. The City agrees to build a City plaza and beautify the
surrounding area concurrent with the construction of the Miami
City Ballet building. This requirement is consistent with the
redevelopment plan for the City Center area.
. The City will fund up to $2.5 Million matching grant for the
development of the building. These funds will be provided by
the Tourist and Convention Center Expansion Authority bond
reserve fund proceeds.
. Miami City Ballet will hold the City of Miami Beach harmless
and indemnify the City upon taking possession of the land.
. All insurance proceeds, in the event of damage to the
building, will be applied towards restoring the building. The
City will be listed as a co-payee.
. The Miami City Ballet will designate a position on their Board
for a representative of the City appointed by the City
commission.
. If the Miami City Ballet loses or relinquishes their tax
exempt status, the Lease Agreement will be renegotiated.
· within sixty (60) days from execution of the Lease, the
parties will order an environmental report of the property.
The costs for such to be shared equally by the City and the
Ballet. In the event that an environmental study discloses
the existence of hazardous substances on the property, the
cost of clean-up shall be estimated. At that time, the Ballet
shall have the option to terminate the Lease. The City has
agreed only to fund any clean-up costs up to $2.5 Million; the
amount of the Tourist and Convention Center Expansion
Authority grant monies. In the event of a clean-up which is
less than the $2.5 Million grant amount, all funds applied
toward Clean-up shall be deducted from the funds advanced to
the Ballet for construction. In the event that the clean-up
costs exceed $2.5 Million, the City may terminate the Lease.
2
ANALYSIS:
The Administration and the City Attorney have worked diligently on
the Ground Lease Agreement with the Miami City Ballet because of
the benefits to be derived by this project. These benefits include
the beautification of the City Center Plaza, the additional
attraction provided to tourists and visitors to Miami Beach, and
the provision of quality performances at the Theater of the
Performing Arts.
CONCLUSION:
The Administration recommends that the City commission approve the
Ground Lease Agreement.
RMC:MOB:ah
a:\miamicty.bal.#lS
3
GROUND LEASE AGREEMENT
BETWEEN
CITY OF MIAMI BEACH,
a Florida municipal corporation
and
MIAMI CITY BALLET, INC.,
A FLORIDA NOT-FOR-PROFlT CORPORATION
5
AG~~~~--R_~_A_ t
DATE iJ3-~L(
TABLE OF CONTENTS
FOR
GROUND LEASE BETWEEN
CITY OF MIAMI BEACH, AS LANDLORD,
AND MIAMI CITY BALLET I INC., AS TENANT
ARTICLE 1. TERM
section 1. 01.
section 1. 02.
section 1. 03.
section 1.04.
..............
Page
1
1
1
1
2
Term . . . . . . . . . . . . . . . .
Commencement Date Defined . . .
Expiration Date Defined .
Memorandum
. . . . . .
ARTICLE 2. RENEWAL OPTIONS
Section 2.01. Renewal Options ·
. .
2
2
2
2
3
3
3
4
ARTICLE 3. CONSTRUCTION OF THE BUILDING
Section 3.01. Building Defined . . . .
Section 3.02. Responsibility for Construction
Building . . . .
Zoning . . . . . . . . .
Easements . . . . . . . .
Building Permit . . . . .
Delivery of possession of Land to
Tenant . . . . . . . . . . . . . .
Commencement of Construction
Construction Schedule . . . . . . .
Tenant's Obligations at substantial
Completion . . . . . . . . . . . . . . .
Section 3.10. Obligation to Negotiate Construction
Agreement in Good Faith .
ARTICLE 5. TAXES AND ASSESSMENTS. . . .
Section 5.01. Payment by Tenant. .
section 5.02. Receipts . . . .
Section 5.03. Taxes Defined. . . .
Section 5.04. Apportionment. . . .
Section 5.05. Contest by Tenant. .
Section 5.06. Joinder in contest by
section
Section
Section
Section
3.03.
3.04.
3.05.
3.06
Section 3.07.
Section 3.08.
Section 3.09.
ARTICLE 4. RENT
Section 4.01.
Section 4.02
. . . .
of
4
4
4
5
............
5
5
5
5
6
6
7
7
8
8
8
Rent . . . . .
Adjustments to Rent .
. . . . .
. . .
. . . . .
. . . . .
Landlord
ARTICLE S. TENANT RESPONSIBLE FOR UTILITIES .. . . . 9
Section 6.01. Tenant Responsible for Utilities . . .. 9
ARTICLE 7. TITLE TO THE LAND . . . . . . . . . . . . . . .. 9
Section 7.01. Title to the Land. . . . . . . . . 9
section 7.02. Title Opinion and permitted Exceptions 9
Section 7.03. Objections to Title. . . . . . . . . .. 9
i
6
ARTICLE 8. TITLE TO THE BUILDING. . . . . . . .
Section 8.01. Title to the Improvements.
. . . . .
ARTICLE 9. USE OF PROPERTY. . . . .
Section 9.01. Use of Property. . . .
ARTICLE 10. INSTALLATIONS BY TENANT
Section 10.01. Installations by Tenant. . .
ARTICLE 11.
section
Section
Section
ARTICLE 12.
Section
section
Section
Section
. . .
BOND REQUIREMENTS; RESPONSIBILITY TO
LIENS . . . . . . . . . . . .
11 . 01. Bond . . . . . . . . . . . .
11.02. Construction Liens
11.03. Discharge of Liens
DISCHARGE
. . . .
. . . .
ASSIGNMENT OR SUBLEASING . . . . . .
12.01. Conditions of Assignment
12.02. Transfers to Leasehold Mortgagees. .
12.03. Release of Tenant's Liability
12.04. Sublease Requirements. . . .
ARTICLE 13. LANDLORD'S AND TENANT'S MORTGAGES
Section 13.01. Landlord's Mortgage.
Section 13.02. Tenant's Mortgage. . .
ARTICLE 14.
Section
Section
Section
Section
Section
. . . .
. . . .
CONDEMNATION . . . . . . . . .
14.01. Apportionment of Award
14.02. Lease to Terminate if Total Taking
14.03. Lease to Remain in Effect if Partial
Taking . . . .. ....
14.04. Disputes . . . .
14.05. Temporary Taking
. . . .
Page
10
10
10
10
10
10
11
11
11
11
11
11
12
12
13
13
13
14
15
15
16
16
17
18
ARTICLE 15. INSURANCE AND INDEMNITY . . . . 18
Section 15.01. Construction of Building . . . . 18
Section 15.02. Insurance After Substantial Completion of
Building . . . . . . . . . 19
section 15.03. Indemnification of Landlord. 20
section 15.04. Indemnification of Tenant. . . . 20
ARTICLE 16.
Section
Section
Section
Section
Section
Section
DAMAGES TO BUILDING . . . . . . . . . . . .
16.01. Building Usable. . . .
16.02. Building Unusable. . . . . . . . . .
16.03. Expenditures by Tenant
16.04. Failure of Tenant to Repair or Restore
16.05. Disputes . . . . . . . . . . . .
16.06. Governmental Prohibitions. . . . . . . .
. . .
ii
21
21
21
21
22
22
22
7
ARTICLE 11. MAINTENANCE . . . . . . .
Section 17.01. Maintenance by Tenant. . .
Section 17.02. Maintenance by Landlord. . . .
. . . . .
. . . . .
ARTICLE 18. ALTERATIONS . . . . . . . . . . .
section 18.01. Right of Tenant. . .
Section 18.02. substantial Defined.
. . . .
. . . .
ARTICLE 19. DEVELOPMENT OF CITY PLAZA AND REALIGNMENT
OF CONVENTION CENTER DRIVE . . . . 23
section 19.01. Development of City Plaza. . . . . . .. 23
ARTICLE 20. SURRENDER OF PROPERTY
Section 20.01. Surrender of Property. . . . .
. . . . .
ARTICLE 21.
Section
Section
Section
Section
EVENT OF DEFAULT BY TENANT .
21.01. Monetary . .
21.02. Abandonment. . . . .
21.03. Non-Monetary
21.04. Bankruptcy . . . .
LANDLORD'S REMEDIES . . . .
22.01. Remedies for Tenant's Default. . . . . .
22.02. Limitation on Landlord's Remedies.
23.01. Events of Default. . . . . . . . .
. .
ARTICLE 22.
Section
Section
section
ARTICLE 24. LANDLORD'S AND TENANT'S AGREEMENT TO RECOUP COST
OF IMPROVEMENTS IN THE EVENT OF DEFAULT . . . . 27
Section 24.01. Landlord's and Tenant's Agreement. . . . 27
Section 24.02. Landlord to Proceed to Exercise
Remedies. . . . . . . . . . . . . . 27
Section 24.03 The Qualified Replacement Tenent. . . . . 27
Section 24.04 Dispute. . . . . . . . . 28
ARTICLE 25. QUIET ENJOYMENT
Section 25.01. Quiet Enjoyment . .
ARTICLE 26. ARBITRATION
Section 26.01. Arbitration. .
. . . . .
. . . . .
. . . . .
. . .
Paqe
23
23
23
23
23
23
24
24
24
24
25
25
25
25
25
26
26
28
28
28
28
27.01.
27.02.
27.03.
27.04.
27.05.
28
City Funding . . .. ........ 28
Parking . . . . . . . . . 29
Hazardous Waste . . . . . . . . 29
Environmental Report . . . . . . . . . . . 29
Peformance at the Theatre of the
Peformlng Arts ... . . . . . . . . . .
ARTICLE 21.
Section
Section
Section
Section
Section
MISCELLANEOUS
. . . .
. . . . .
. . . . .
lil
30
8
Paqe
Section 27.06. city participation . . . . . . . 30
Section 27.07. Brokers . . . 31
Section 27.08. Notices . . . . . . . . . . 31
Section 27.09. No Waiver . . . . . . 31
Section 27.10. Memorandum of Lease 32
Section 27.11- Landlord's Right of Entry . 32
Section 27.12. Estoppel Certificate 32
Section 27.13. Covenants Run with Land 32
Section 27.14. Attorney's Fees . . . . 32
Section 27.15. Plural . . . . . . . . 32
Section 27.16. Compliance with Laws 32
Section 27.17. Divisibility 33
Section 27.18. Landlord and Tenant Not in Business
Together . . . . 33
Section 27.19. Radon Disclosure . . . . . 33
Section 27.20. Governing Law . . . . . . . 33
Iv
9
GROUND LEASE
THIS LEASE, is made as of the ____ day of , 1994 by and
between the CITY OF MIAMI BEACH, a Florida municipal corporation
("Landlord") and MIAMI CITY BALLET, INC., a Florida not-for-profit
corporation ("Tenant").
WIT N E SSE T H:
Landlord, in order to create a significant educational and
cultural facility for the use and enjoyment of the general public
and for and in consideration of the covenants hereinafter made by
Tenant, and the covenants and agreements hereinafter contained to
be kept and performed by Tenant, does hereby demise, lease and let
unto Tenant for the term and upon the conditions hereinafter
stated, that certain real property described on Exhibit "A"
attached hereto and made a part hereof which consists of
approximately square feet of land, currently improved
with a surface parking lot, located in the City of Miami Beach,
Dade County, Florida, together with all appurtenances to such land,
including, without limitation, all vegetation, air rights,
easements, rights-of-way or appurtenances owned by Landlord and
held in connection with such land, and all rights of Landlord in
and to any streets, sidewalks, alleys and land lying in the bed of
existing or proposed streets adjacent to such land (collectively,
the "Land"), for the Term (as defined in Section 2.01) subject to
the covenants, agreements, terms and conditions hereinafter set
forth, to each and all of which Landlord and Tenant mutually agree.
ARTICLE 1. TERM.
Section 1. 01. !!E!. The initial term (the "Initial Term") of
this Lease shall be for fifty-one (51) Lease Years (as defined in
Section 4.01) plus any partial month if the Commencement Date does
not occur on the first day of a calendar month, beginning on the
Commencement Date and expiring on the Expiration Date, or until
sooner terminated or extended as hereinafter provided.
Section 1.02. Commencement Date Defined. "Commencement Date"
shall mean the earlier of: (a) the date which is fifteen (15) days
after the Building (as defined in Section 3.01) shall be
substantially Completed (as such term is defined in the
Construction Agreement), or (b) the date Tenant, or anyone claiming
under or through Tenant, first opens the conduct of any business in
the Building, or (c) the date which i8 twenty four (24) months
after the Lease Execution Date.
Section 1.03. Expiration Date Defined. "Expiration Date"
shall mean the date which 1s the last day of the Fifty-first Lease
Year or the last day of any Renewal Term, if applicable.
10
Section 1.04. Memorandum. Upon the request of either party,
Landlord and Tenant shall join in the execution of an agreement
stipulating the Commencement Date, the Expiration Date and the
possession Date (as defined in Section 3.06), once such dates are
ascertained.
Section 1.05. Lease Execution Date Defined. "Lease Execution
Date" shall mean the date that this Lease is approved by the Mayor
and the City Commission of the City of Miami Beach. The terms of
this Lease shall be effective commencing on the Lease Execution
Date except for those terms that this Lease expressly states shall
commence on another date.
Section 1. 06. Property Defined. "Property" shall
collectively mean the Land and the Building (as defined in Section
3.01).
ARTICLE 2. RENEWAL OPTIONS.
Section 2.01. Renewal Options. Provided that on the date of
exercise, and on the date upon which the subject renewal term is
scheduled to commence, there exists no uncured Event of Default,
Tenant shall have the right to renew this Lease for two (2)
additional twenty-four (24) year terms under the same terms and
conditions of this Lease as the Initial Term, provided that Tenant
gives Landlord written notice of its intent to exercise: (a) the
first twenty-four (24) year renewal term (the "First Renewal Term")
no later than the last day of the ninth (9th) month of the fifty-
first (51st) Lease Year, (b) the second twenty-four (24) year
renewal term (the "Second Renewal Term") no later than the last day
of the ninth (9th) month of the seventy-fifth (75th) Lease Year;
and further provided, that Tenant shall have no right to exercise
the option for the Second Renewal Term unl.ss Tenant shall have
exercised the option for the First Renewal Term. (The Initial Term,
together with the First Renewal Term, if exercised and the Second
Renewal Term, if exercised is sometimes hereinafter referred to
collectively as the "Term").
ARTICLE 3. CONSTRUCTION OF THE BUILDING.
SectIon 3.01. Building Defined. "Building" shall mean an
approximately Eighty Thousand (80,000) square foot building,
complete wIth utility equipment for space and water heating,
plumbing and electrical systems, air conditioning, interior and
exterior lighting fixtures, finished carpentry and mill work, yard
work, entrances and exits, sewage disposal, water lines,
electrical, power and gas lines and connections, soil compaction,
grading, site improvements, curbing, paving for parking areas and
walkways, landscaping, exterior lighting for the Building, exterior
and interior finishes and such other items relating to such
2
11
building as shall be specified in the working Drawings. "Working
Drawings" shall mean detailed architectural working drawings and
material specifications for the conltruction of the Building
prepared by Tenant' I architect at Tenant' I lole COlt, to be
prepared and sealed in luch a manner al may be required for the
issuance of the Building Permit (as defined in Section 3.05). The
Building shall be designed and constructed by Tenant for the use of
the Miami City Ballet as a Dance Pavilion, Museum and School (the
"Facility") pursuant to the terms of this Lease and the
Construction Agreement to be entered into between the parties
within five (5) months of the Lease Execution Date (the
"Construction Agreement").
Section 3.02. Responsibility for Construction of Building.
Tenant shall, at Tenant's sole cost and expense, construct the
Building substantially in accordance with the Working Drawings and
the Construction Agreement. Tenant shall be responsible for all
license and permit fees, impact fees and all other fees, costs and
charges associated with, connected with or related to the construc-
tion of the Building, including, without limitation, utility costs
incurred during construction, except Impositions (as defined in
Section 5.01) which shall be apportioned between Landlord and
Tenant in accordance with Section 5.04. Landlord shall not be
liable for any claims, losses or damages suffered by third parties
arising from Tenant's construction of the Building, unless such
claims, losses or damages are caused by the intentional acts or
negligence of Landlord, its employees, agents, invitees or
licensees.
Section 3.03. Zoninq. The parties acknowledge that, as a
condition precedent to the construction of the Building, Landlord
shall secure all final non-appealable zoning approvals and actions
required by the City of Miami Beach in order (a) to build the
Building in accordance with that certain site plan entitled Miami
City Ballet, prepared by ARQUITECTONICA, dated , 1994 and
dated last revised 1994 (the "Site Plan"), and (b) to
utilize the Facility for its intended purpose. If such zoning
approvals and actions are appealed, then each party shall be
responsible for the payment of its own attorneys' fees and costs.
Section 3.04. Easements. The parties acknowledge that, in
order to construct the Building in accordance with the Site Plan
and the Working Drawings, certain easements and rights-of-way may
be required by Tenant, on behalf of itself or third parties (which
third parties specifically include all utility companies).
Landlord agrees to promptly execute such easements or right-of-way
documents as may reasonably be required to facilitate construction
of the Building. In the event of a dispute between the parties as
to whether any such easement or right-of-way requested by Tenant is
reasonably required, said controversy shall be resolved by
arbitration as provided in Article 26.
3
12
Section 3.05. Buildinq Permit. Tenant agrees to use its good
faith efforts to obtain, at its sole cost and expense (including,
without limitation, the payment by Tenant of any impact fees) a
building permit and any other authorization required by applicable
qovernmental authorities (other than the zoning approvals and any
parking studies required by governmental authorities, the cost of
which shall be paid by Landlord), required to commence construction
of the Building (the "Building permit") no later than that date
defined in the Construction Agreement as the "Building Permit
Date." Notwithstanding any contrary provision contained herein,
Tenant makes no representations or warranties whatsoever regarding
Tenant's ability to obtain the Building Permit. In the event
Tenant fails to obtain the Building Permit by the Building Permit
Date after good faith effort, Tenant may terminate this Lease upon
written notice to Landlord within the ten (10) business day period
following the Building Permit Date. Tenant's failure to obtain the
Building Permit by the Building Permit Date, after good faith
effort, shall not be deemed an Event of Default and Tenant shall
have the right to continue to attempt to secure the Building Permit
until that date specified in the Construction Agreement as the
"Building Permit Termination Date", unless Tenant shall have
exercised the aforementioned termination right. Failure to give
such written notice within the aforesaid ten (10) business day
period shall constitute a waiver of such termination right, in
which event this Lease shall remain in full force and effect.
Tenant shall give notice to Landlord of Tenant's receipt of the
Building Permit no later than five (5) days following issuance of
same ("Tenant's Building Permit Notice").
Section 3.06. Delivery of possession of Land to Tenant. No
later than five (5) days after Tenant's Building Permit Notice,
Landlord shall deliver possession of the Land to Tenant in writing
(the "possession Date"). On or before the possession Date, Tenant
shall provide evidence to Landlord of the insurance required by
Article 15 below. Prior to the possession Date, Landlord, its
employees, agents, invitees and licensees, may park their vehicles
on the Land, provided that, Landlord shall insure this use of the
Land at Landlord's expense.
Section 3.07. Commencement of Construction. Within six (6)
months of the possession Date, Tenant shall commence construction
of the Building; notwithstanding the foregoing, in no event shall
Tenant commence construction of the Building later than thirty (30)
months after execution of the Construction Agreement by both
Landlord and Tenant. Thereafter, Tenant shall diligently prosecute
and complete construction of the Building no later than eighteen
(18) months after commencement of such construction subject to
Unavoidable Delays, as such term is defined in the Construction
Agreement.
Section 3.08. Construction Schedule. Construction of the
Building shall proceed in accordance with the construction schedule
4
13
approved by the parties pursuant to the Construction Agreement.
Section 3.09. Tenant' s Obliqations at Substantial Completion.
Upon the substantial Completion of the Building, as defined in the
Construction Agreement, Tenant, at its sole cost and expense, shall
furnish to Landlord: (a) a certificate from Tenants' architect
certifying that the Building has been completed substantially in
accordance with the Working Drawings, (b) a true copy of the
permanent certificate of occupancy issued by the City of Miami
Beach Building Department, (c) a true copy of all other permits and
certificates issued by governmental authorities for the operation
of the Building for its intended use, and (d) a true copy of the
"as built" plans for the Building.
Section 3.10. Obliqation to Neqotiate Construction Aqreement
in Good Faith. Landlord and Tenant shall each use their good faith
efforts to negotiate and execute the Construction Agreement within
the required five (5) month period. If for any reason, notwith-
standing the good faith efforts of both parties, Landlord and
Tenant are unable to agree upon the terms of the Construction
Agreement during such five (5) month period, all open and disputed
issues shall be submitted to arbitration in accordance with the
provisions of Section 26.01. The decision reached in the arbitra-
tion shall be final and the parties will execute the Construction
Agreement recommended by the arbitrator.
ARTICLE 4. RENT.
Section 4.01. Rent. For the Term of the Lease, Tenant shall
pay Landlord a nominal annual rent for the Land of One Hundred
Dollars ($100.00) (the "Base Rent") which shall be payable in
advance without demand, commencing on the Commencement Date and
there after on the first day of each Lease Year. "Lease Year"
shall mean each consecutive twelve (12) calendar month period of
the Initial Term, and of the First Renewal Term and Second Renewal
Term, if applicable, commencing on the Commencement Date. If the
Commencement Da~e occurs on a day other than the first day of a
calendar month, the first Lease Vear shall include the partial
month on which the CommenceMent Date occurs and the following
twelve (12) calendar months; and the Base Rent for the portion of
the month frOM the Commencement Date to the first day of the first
Lease Year shall be prorated and paid with the payment of Base Rent
due. The Base Rent shall be paid to Landlord in legal tender of
the United States of America at the office of Landlord designated
in Section 27.06, or at such other place that Landlord shall from
time to time designate by notice in writing. In addition, Tenant
shall pay all applicable sales and/or use taxes on the Base Rent.
Section 4.02. Adjustments to Rent. In the event that Tenant
loses its tax exempt status, Landlord and Tenant shall renegotiate
the amount of Base Rent to be paid by Tenant under this Lease to be
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equal to the fair market rental for the Land. If Landlord and
Tenant cannot agree on the new amount of Bas. Rent within sixty
(60) days after Tenant's loss of its tax exempt status, then Tenant
may (a) terminate this Lease by written notice of termination
delivered to Landlord, or (b) request that the issue of fair market
rental be submitted to arbitration in accordance with the proce-
dures outlined in Article 26.
ARTICLE 5. TAXES AND ASSESSMENTS.
Section 5.01. Payment by Tenant. Commencing on the
Possession Date, Tenant covenants and agrees to pay all of the
following items applicable to the Land and Building (the
"Impositions"):
(a)
excise taxes,
Occupancy, Base Rent all sales and use taxes or
(b) Water, water meter, and sewer rents, rates and
charges,
(c) Excises,
(d) Levies,
(e) License and permit tees,
(f) Service charges or assessments, including, but not
limited to, police protection, fire protection, street and highway
construction, maintenance, lighting and/or landscaping, sanitation
and water supply, if any,
(g) Fines, penalties, late charges and other similar
governmental charges applicable to the foregoing and any interest
or costs with respect thereto,
(h) Certified special assessment liens, and
(i) Any and all other governmental levies, fees, rents
and charges, and any interest or costs with respect thereto, which,
at any time after the Possession Date and during the Term, are:
1. Levied, confirmed, imposed upon, or become due
and payable out of or in respect of, or would be charged wi th
respect to:
thereof, or
(i) The Land, the Building, or any part
(ii) The use and occupancy of the Land, the
Building, or any part thereof by Tenant, or
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(iii) This Lease, and
2. Would be encumbrances or liens on:
(i) The Land, or any part thereof, or
(ii) The sidewalks, streets or roadways in
front of or adjoining the Land, or
(iii) Any personal property, equipment or other
facility used in the operation of the Facility, or
(iv) The Base Rent (or any portion thereof)
payable by Tenant hereunder.
Each such Imposition, or installment thereof, after the possession
Date and during the Term, will be paid by Tenant not later than the
date on which any fine, penalty, interest or cost may be added
thereto or imposed by law for the non-payment thereof; provided,
however, that if, by law, any Imposition may at the option of the
taxpayer be paid in installments (whether or not interest will
accrue on the unpaid balance of such Imposition), Tenant may, with
Landlord's prior written consent, which consent shall not be
unreasonably withheld, exercise the option to pay the same in such
installments, provided that all such installment payments relating
to periods prior to the Expiration Date are required to be made
prior to the Expiration Date. Notwithstanding the foregoing
provisions of this Section 5.01 or any contrary provision of this
Lease, Tenant shall not be responsible for the payment of the Taxes
(as defined in Section 5.03) assessed against the Property prior to
the Commencement Date of this Lease: it is the intent of the
parties that Landlord shall pay the Taxes against the Property, if
any should be assessed, prior to the Commencement Date because
prior to Substantial Completion, the Building will not be subject
to taxation. After the Commencement Date and during the Term,
Tenant shall be responsible for the payment of all Taxes against
the Property.
Section 5.02. Receipts. Tenant, from time to time upon the
request of Landlord, will furnish to Landlord, within thirty (30)
days after the date when an Imposition is due and payable under
this Lease, official receipts of the appropriate authority or other
evidence reasonably satisfactory to Landlord, evidencing the
payment thereof.
Section 5.03. Taxes Defined. "Taxes" means all real or
personal property taxes levied against the Land or the Building.
Nothing herein, however, shall require Tenant to pay municipal,
state or federal income, inheritance, estate, succession, transfer
or gift taxes imposed upon Landlord, or any corporate franchise tax
imposed upon Landlord. It is understood that the Land is not
presently subject to the payment of real property Taxes. Landlord
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shall join with Tenant in submitting and pursuing any application,
petition or request required or permissible in order to preserve
the Tax exempt status for the Property. Landlord's cooperation
shall include joinder with Tenant in any appeal of a denial of Tax
exempt status for the Property, within the context of an appropri-
ate administrative proceeding or in a court of competent jurisdic-
tion. Tenant shall pay any and all costs and expenses in
connection with any efforts to obtain or maintain Tax exempt status
for the Property.
Section 5.04. Apportionment. Any Imposition relating to the
fiscal period of the governmental agency imposing the same, a part
of which period is included within the Term and a part of which is
included in a period of time either before the Possession Date or
after the Expiration Date (whether or not such Imposition is
levied, confirmed, imposed upon or becomes a lien upon the Land, or
becomes payable, during the Initial Term or a Renewal Term) shall
be apportioned between Landlord and Tenant as of the Possession
Date and as of the Expiration Date, respectively, so that Tenant
will pay that portion of such Imposition which that part of the
fiscal period included in the period of time after the Possession
Date and before the Expiration Date, respectively, bears to the
entire fiscal period for such Imposition, and Landlord shall pay
the remainder thereof; except that those Impositions which are
exclusively attributable to, and arise directly from, construction
of the Building shall not be apportioned between Landlord and
Tenant, but rather, Tenant shall pay the total of such Impositions.
Notwi thstanding the foregoing provisions of this Section 5.04,
Taxes shall be apportioned between Landlord and Tenant as of the
Commencement Date and not as of the Possession Date.
Section 5.05. Contest by Tenant. Tenant will have the right
at its own expense to contest the amount or validity, in whole or
in part, of any Imposition by appropriate proceedings diligently
conducted in good faith; however, Tenant shall not be obligated to
do so.
Section 5.06. Joinder in Contest by Landlord. With the
exception of Landlord's obligation. under Section 5.03, Landlord
will not be required to join in any proceedings referred to in this
Article 5 hereof unless the provisions of any law, rule or
regulation at the time in effect requires that such proceedings be
brought by and/or in the name of Landlord, in which event, Landlord
will join and cooperate in such proceedings or permit the same to
be brought in Landlord's name, but Landlord will not be liable for
the payment of any costs or expenses in connection with any such
proceedings and Tenant will reimburse Landlord for any and all
costs or expenses, including Landlord's attorneys' fees and
disbursements at the trial level and on appeal, which Landlord may
sustain or incur in connection therewith.
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ARTICLE 6. TENANT RESPONSIBLE FOR UTILITIES.
Section 6.01. Tenant Responsible tor Utilities. Tenant is
solely responsible for any and all charqes tor water, qas,
electricity, or any other utility used or consumed on the Property,
including, without limitation, all hook-up fees or impact fees, and
Tenant will promptly pay all sewer service charges, electric
servicing and electric currents, and other services, utilities or
commodities, including water, gas and telephone in or about the
Property when due. In addition to other rights and remedies
hereinafter reserved to the Landlord, upon the failure of the
Tenant to pay for such services or commodities, the Landlord may
pay the same, and the Tenant agrees to reimburse the Landlord
therefor or the Landlord may treat such action by Tenant as a
default under the terms of this Lease and take action in accordance
with the default provisions set forth in this Lease. In no event
shall Landlord be liable for an interruption or failure in the
supply of any such utilities to the Property, unless interruption
or failure shall be the result of the intentional act or gross
negligence of Landlord or its employees, contractors or other
persons acting at the request or direction of Landlord.
ARTICLE 7. TITLE TO THE LAND.
Section 7.01. Title to the Land. Landlord represents that
Landlord is the fee owner of the Land, which ownership is
unencumbered by any lien or security interest and also represents
that there are no covenants, conditions, restrictions, rights-of-
way and/or easements or other matters relating to or encumbering
the Land which would interfere with the construction obligations of
Tenant under Section 3.02 or the utilization of the Facility by
Tenant as contemplated in this Lease.
Section 7.02. Title Opinion and Permitted Exceptions.
Landlord shall deliver to Tenant, within thirty (30) days of the
Lease Execution Date, an opinion of title, (the "Title Opinion")
prepared by counsel for Landlord, together with copies of all
exceptions to title. The Title Opinion shall confirm that Landlord
is the fee owner of the Land and shall further confirm that the
Land is subject only to those exceptions enumerated in the Title
Opinion (the "Permitted Exceptions").
Section 7.03. Objections to Title. In the event the Title
Opinion discloses a defect (s) in the title to the Land which
renders it unsuitable for the purposes herein provided, Tenant
shall notify Landlord of the defect within thirty (30) days of
receipt of the Title Opinion. Landlord shall use its best efforts
to cure the defect, including prosecuting the appropriate action in
a court of competent jurisdiction. In the event Landlord is unable
to cure the defect within one hundred twenty (120) days of Tenant's
notice, Tenant shall have the option of accepting title in its
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present condition, or terminating this Lease, whereby both parties
shall be released from any and all further obligations hereunder.
ARTICLE 8. TITLE TO THE BUILDING.
Section 8.01. Title to the Improvements. Title to the
Building constructed by Tenant on the Land shall vest in Tenant as
of the possession Date and shall remain in Tenant until the
expiration of the Term, unless this Lease shall be sooner
terminated as herein provided; provided, however, that upon the
expiration or earlier termination of this Lease, title to the
Building shall automatically pass to, vest in and belong to
Landlord without further action on the part of either party and
without cost or charge to the Landlord, free and clear of all
encumbrances, except the lien of any taxes assessed but not yet due
and payable, applicable building and zoning ordinances, the
Permitted Exceptions, and any easement or encumbrance of record to
which Landlord may have specifically consented to.
ARTICLE 9. USE OF PROPERTY.
Section 9.01. Use of Property. Tenant agrees to use the
Property for the operation of a Dance Pavilion, Museum and School,
which may include, at Tenant's option, a restaurant, 9ift shop,
dormitories, cafeteria, practice rooms, performance halls, museum,
administrative offices and any other use which Tenant, in its
reasonable discretion, decides is in the best interest of the Miami
city Ballet, as long as such use furthers the purpose of the Miami
Ci ty Ballet pursuant to its Articles of Incorporation or its
charter documents.
ARTICLE 10. INSTALLATIONS BY TENANT.
Section 10.01. Installations by Tenant. All alterations,
decorations, additions and improvements made by Tenant to the Land,
including, but not limited to the Building, and any carpeting, wall
covering, paneling, built-in cabinet work, movable furniture and
trade fixtures located in the Building, shall be and shall remain
the property of Tenant for the Initial Term, and any Renewal Term.
Upon the expiration or termination of this Lease, the Building and
all such alterations, additions and improvements shall become the
property of Landlord, except any of Tenant's personal property
which is not permanently affixed to the Building or is otherwise
removable without substantial damage to the Building, including,
but not limited to, furniture, trade fixtures, art work, signs and
"inside" plants. If Tenant's removal of its personal property
damages the Building, then Tenant shall repair such damage. If
Tenant fails to remove such personal property within ten (10) days
after the expiration of this Lease, all such personal property
shall become the property of Landlord.
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ARTICLE 11. BOND REQUIREMENTS; RESPONSIBILITY TO DISCHARGE
LIENS.
Section 11.01. Bond. Tenant shall furnish to Landlord, prior
to commencement of construction of the Building, an unconditional
payment and performance bond (the "Performance Bond") issued by a
licensed surety transacting business in Florida reasonably
acceptable to Landlord assuring performance of the completion of
the Building pursuant to the Working Drawings and payment of all
bills for labor and materials.related thereto, naming Landlord and
Tenant as co-obligees. Such bond shall be approved by Landlord and
shall be in an amount equal to the cost of completion of the
Building as estimated by Tenant's contractor.
Section 11.02. Construction Liens. Notwithstanding anything
contained in this Lease to the contrary, nor the right of Tenant to
construct improvements on the Land, the interest of the Landlord in
the Land, or otherwise, shall not be subject to liens for improve-
ments made by or for the Tenant, whether or not same shall be made
or done in accordance with any agreement between Landlord and
Tenant, and it is specifically understood and agreed that in no
event shall Landlord, or the interest of Landlord in the Land, or
otherwise, be liable for or subject to any construction, mechan-
ic's, materialmen's, or laborers' liens for improvements made by
Tenant, or for which Tenant is responsible for payment under the
terms of this Lease. Tenant shall notify its contractors of the
provisions of this Section 11.02.
Section 11.03. Discharqe of Liens. In the event any notice or
claim of lien shall be asserted against the interest of Landlord in
the Land, or on account of or arising from any improvement or work
done by or for Tenant, or any person claiming, by, through or under
Tenant or for improvements or work, the cost of which is the
responsibility of Tenant, Tenant agree. to have such notice or
claim of lien canceled and discharged (either by payment or bond as
permitted by law) within thirty (30) days after notice to Tenant by
Landlord and, in the event Tenant shall fail to do so, then it may
be declared by Landlord to be an Event of Default under this Lease.
Tenant shall have the right to contest, in good faith, any lien so
long as Tenant posts a bond as required under the construction lien
laws of the State of Florida (Chapter 713, Florida statutes).
ARTICLE 12. ASSIGNMENT OR SUBLEASING.
Section 12.01. Conditions of Assiqnment. At any time after
the Building has been erected free and clear of all mechanics's or
materialmen's liens and claims and the Facility has been operating
for a period of at least five (5) years, Tenant may assign its
interest in the Property with the prior, written consent of
Landlord, provided that:
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(a) The character, integrity, experience, reputation and
financial responsibility of the assignee are reasonably
satisfactory to the Landlord;
(b) There is not then existing an Event of Default or an
event which, with the passage of time or giving of notice or both
would constitute an Event of Default;
(c) The assignment shall be evidenced by an instrument,
approved by Landlord, in writing, duly executed and acknowledged by
Tenant and the assignee and recorded in the Public Records of Dade
County, Florida, wherein and whereby the assignee shall expressly
accept and assume all the terms and covenants in this Lease to be
kept and performed by Tenant arid shall expressly covenant and agree
to comply with and be bound by them; and
(d) A true and complete copy of the recorded documents
evidencing such assignment shall be delivered to Landlord within
ten (10) days after such recording, together with the business
address of such assignee.
(e) If Tenant assigns to an entity that is not a non-
profit organization, then any rental received by Tenant from such
assignee that exceeds the Base Rent provided for in this Lease
shall be split equally between Tenant and Landlord. Tenant shall
remi t Landlord's portion of such payments to Landlord wi thin
fifteen (15) days of Tenant's receipt thereof.
Section 12.02. Transfers to Leasehold Mortgagees. The
provisions of Section 12.01 shall not prohibit the transfer to the
holder of the Leasehold Mortgage (as defined in Section 13.02), in
lieu of foreclosure or pursuant to enforcement of the remedies
under the Leasehold Mortgage, provided that the holder of the
Leasehold Mortgage (the "Leasehold Mortgagee") and Tenant have
first complied with the provisions of Section 13.02. A Leasehold
Mortgagee having acquired title to the leasehold estate of Tenant
by foreclosure of the Leasehold Mortgage or transfer in lieu of
foreclosure shall have the right, for a one (1) year period after
its acquisition of the leasehold estate, to assign Tenant's
interest under this Lease to an assignee experienced in management
and operations of first-class facilities of this type, provided
that the Leasehold Mortgagee obtains Landlord's prior, written
consent to such assignment, such consent not to be unreasonably
withheld or delayed. In the event that the Leasehold Mortgagee
assigns this Lease to an entity that is not a non-profit
organization, Landlord reserves the right to renegotiate the amount
of Base Rent to be paid by such assignee under this Lease.
Section 12.03. Release of Tenant's Liability. If an
assignment shall be made, after complying with the conditions and
in the manner set forth in Section 12.01, the assignee shall be
subject to the same terms and conditions as to future assignments,
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and to all the covenants, agreements, provisions and conditions
contained in this Lease, and Tenant herein so assigning shall
thereafter be forever released and discharged from the agreements,
covenants, obligations and liabilities in this Lease contained
accruing after the date of the assignment; provided that said
assignment shall have been made to carry into effect an absolute
and bona fide sale of Tenant's interest in this Lease; and provided
further that Tenant shall indemnify and hold Landlord harmless
against any claims asserted by third parties which arise from
Tenant's occupancy of the Property under this Lease.
Section 12.04. Sublease Requirements. Tenant shall have the
right to make individual subleases, having a term of one (1) year
or less, without Landlord's consent; provided that each sublease
shall be for the utilization of the Property, or the provision of
those services enumerated in Article 9, and further provided that
each sublease shall specify (a) that such sublease is subject and
subordinate to this Lease, and (b) that in the event of
cancellation or termination of this Lease in accordance with its
terms or by the surrender thereof, whether voluntary, involuntary
or by operation of law, such sublease shall thereby be
automatically terminated. If Tenant desires to enter into a
sublease that has a term of greater than one (1) year, Tenant must
first obtain Landlord's prior, written consent, which consent shall
not be unreasonably withheld or delayed.
ARTICLE 13. LANDLORD'S AND TENANT'S MORTGAGES.
Section 13.01. Landlord's Mortgage. This Lease shall, without
the necessity of execution of any further instrument, be deemed to
be subordinate to all mortgages and liens placed now or in the
future by Landlord on the Land (any such mortgage or lien being
hereinafter referred to as the "Permanent Mortgage"), and to all
renewals, modifications, consolidations, replacements and
extensions thereof, and Tenant agrees to promptly, at Tenant's
cost, execute and deliver to the holder of the Permanent Mortgage
(te "Permanent Mortgagee") any instrument of subordination
reasonably requested by such mortgagee; provided, however, that the
subordination of this Lease to the Permanent Mortgage 1s
conditioned upon the following provisions against the disturbance
of the possession by Tenant of the Property:
(a) So long as Tenant continues to pay the rent required
under the terms of this Lease and otherwise complies with the terms
and conditions of this Lease, the right of possession by Tenant of
the Property shall not be affected or disturbed by the Permanent
Mortgagee in the exercise of any of its rights under the Permanent
Mortgage, or as otherwise provided by law;
(b) In the event that the Permanent Mortgagee comes in
possession of or ownership of title to the Land by foreclosure of
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the Permanent Mortgage, or deed in lieu thereof, or otherwise, this
Lease shall not be terminated by such acquisition of title, and the
Permanent Mortgagee shall not have the right to terminate this
Lease unless there shall then exist an uncured Event of Default
hereunder;
(c) In the event that the Land is sold or otherwise
disposed of pursuant to any right or any power contained in the
Permanent Mortgage, or as a result of proceedings thereon, or as
otherwise authorized by law, the purchaser of the Land at such
sale, or any other person acquiring title through or by virtue of
said sale, shall take title subject to this Lease: and
(d) The above provisions shall be binding upon and inure
to the benefit of the Permanent Mortgagee, Landlord and Tenant, and
their respective successors and assigns.
section 13.02. Tenant's Mortqaqe. Landlord agrees to execute,
and shall cause the Permanent Mortgagee to execute, a non-
disturbance agreement (containing lanquage reasonably acceptable to
Landlord) for the benefit of Tenant and the holder of any leasehold
mortgage (the "Leasehold Mortgage") and to cooperate with Tenant's
efforts to obtain financing, including the execution of any
necessary documents, so long as such documents are subject to the
reasonable approval of counsel for Landlord. Such nondisturbance
agreement shall contain those provisions set forth in Section 13.01
above. No Leasehold Mortgage shall be valid or of any force or
effect unless and until Landlord has consented thereto in writing
(which consent shall be conditioned upon Tenant's compliance with
this Section 13.02) and a true copy of the original of each
instrument creating and effecting such mortgage, certified by
Tenant to be a true copy of such instrument, together with written
notice containing the name and post office address of the Leasehold
Mortgagee, has been delivered to Landlord. Further, the Leasehold
Mortgage shall specifically provide:
(a) That the Leasehold Mortgage is subject to all of the
terms, covenants and conditions of this Lease;
(b) That the Leasehold Mortgage encumbers only the
Tenant's interest created by this Lease in the Land and the
Building;
(c) That the rights of Landlord pursuant to this Lease
will not be affected by the terms of the Leasehold Mortgage;
(d) That the holder of the Leasehold Mortgage shall
waive all right and option to obtain and apply proceeds of any
insurance or the proceeds of any condemnation award toward payment
of the sums secured by the Leasehold Mortgage to the extent such
proceeds are required by the terms of this Lease for the demoli-
tion, repair or restoration of the Property;
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(e) That the holder of the Leasehold Mortgage shall
agree to send to Landlord copies of all notices to Tenant in which
such mortgagee claims that there exists one (1) or more uncured
defaults under the terms and provisions of the Leasehold Mortgage,
such notices to be sent simultaneously to Landlord and Tenant;
(f) That the Leasehold Mortgage is a leasehold mortgage
only and that such mortgagee has obtained no interest whatsoever in
the underlying fee of the Land as a result of the execution of the
Leasehold Mortgage by Tenant;
(g) That any person or entity who by purchase at a
foreclosure sale and/or by transfer in lieu of foreclosure acquires
any right, title or interest in or to this Lease, by acceptance of
a deed or other instrument of conveyance thereof, will conclusively
be deemed to have accepted such right, title or interest subject to
all of the terms, covenants and conditions of this Lease; it being
the specific intent of Tenant and the Leasehold Mortgagee that the
Leasehold Mortgage encumber only Tenant's leasehold interest
created by this Lease in the Property, and that except as specifi-
cally set forth in this Lease, the rights of Landlord shall not be
affected by the terms of the Leasehold Mortgage; and
(h) That the Leasehold Mortgage and all rights thereun-
der shall be subject and subordinate to the lien of any,Permanent
Mortgage (subject to nondisturbance to be granted pursuant to this
Section 13.02). The Leasehold Mortgagee shall upon demand, at any
time, execute, acknowledge and deliver to Landlord, without expense
to Landlord, any instrument that may be necessary or proper to
confirm the subordination of the Leasehold Mortgage to the
Permanent Mortgage and any renewal, modification, consolidation,
replacement or extension of the Permanent Mortgage.
ARTICLE 14. CONDEMNATION.
Section 14.01. Apportionment of Award. In the event of the
taking or condemnation by a competent authority for any public or
quasi-public use or purpose of the whole or materially all of the
Property at any time during the Initial Term, or any Renewal Term,
the rights of Landlord and Tenant to share in the net proceeds of
any award for land, buildings, improvements and damages upon any
such taking, shall be as follows and in the following order of
priority:
(a) Landlord, at all times, regardless of when the
taking occurs, shall be entitled to receive, with interest thereon,
that portion of the award that represents compensation tor the
value of the Land, considered as vacant and unimproved land, such
value being hereinafter referred to as the "Land Value". Landlord
shall also be entitled to costs awarded in the condemnation
proceeding proportionately attributable to such Land Value;
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(b) During the Initial Term, or any Renewal Term, Tenant
shall be entitled to the difference between the entire amount of
such condemnation award for the Property and the Land Value, which
remaining balance is hereinafter referred to as the "Award
Balance", together with a proportionate share of costs attributable
to the Award Balance that is awarded;
(c) If the values of the respective interests of
Landlord and Tenant shall be determined according to the provisions
of subparagraphs 14.01(a) and (b) of this Section pursuant to which
the Property shall have been ~aken or condemned, the values so
determined shall be conclusive upon Landlord and Tenant. If such
values shall not have been thus separately determined, such values
shall be fixed by agreement between Landlord and Tenant or if they
are unable to agree, then the controversy shall be resolved by
arbitration under the procedure as set forth in Article 26 hereof;
and
(d) In the event of the taking in condemnation of less
than the whole of the Property but materially all thereof and the
part of the Property that remains includes a part of the Building
that was taken, then as to the untaken remainder of the Building
only, but not any remaining Land, the parties shall endeavor to
agree on the then fair market value of such remainder of the
Building, and if they fail to agree then the controversy shall be
resolved in accordance with Article 26. The value so agreed upon
as the then fair market value of such remainder of the Building as
determined in accordance with subparagraph (c) of this Section, but
diminished by the Award Balance, shall be paid by Landlord to
Tenant, and until paid shall be a charge on the share of the award
for Land Value to which Landlord shall be entitled in the
condemnation proceeding.
Section 14.02. Lease to Terminate if Total Taking. If title
to the whole or materially all of the Property shall be taken or
condemned, this Lease shall cease and terminate and all rental,
additional rent and other charges hereunder shall be apportioned as
of the date of vesting of title in such taking or condemnation
proceedings. For the purposes of this Article 14, a taking or
condemnation of materially all of the Property, as distinguished
from a taking or condemnation of the whole of the Property, means
a taking of such scope that the untaken portion of the Property is
insufficient to: (i) permit the restoration of the then existing
improvements to substantially the same interior and exterior design
and permit the maintenance of a building area of at least
ninety-five percent (95') as existed prior to such taking.
Section 14.03. Lease to Remain in Effect if Partial Taking.
In the event of a partial taking or condemnation, i.e., a taking or
condemnation of less than materially all of the Property, this
Lease (except as hereinafter provided) shall, nevertheless
continue, but the annual net rental to be paid by Tenant shall
thereafter be reduced in the ratio that the rental value of the
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portion of the Property taken or condemned bears to the rental
value of the entire property at the time of the taking or
condemnation, and Tenant shall promptly restore the Building, as
provided below and subject to the conditions detailed below. The
award for the said taking or condemnation in respect to the Land
shall belong to Landlord, and the Award Balance shall be used and
paid as follows and in the following priority:
(a) So much of the Award Balance as shall be necessary
to repair and restore the Building to make the same a complete
architectural unit as nearly as reasonably possible to the
condition existing prior to the taking or condemnation shall be
deposited with Landlord, to be used by Tenant for such purpose.
Tenant shall undertake its work of repair and restoration as soon
as reasonably practicable. In the event the Award Balance is less
than the full amount required to restore the Building as provided
herein, but is equal to or exceeds ninety five percent (95') of the
full amount required to restore the Building, Tenant shall make
such repairs and restoration. If the Award Balance is less than
the ninety five percent (95') required to restore the Building,
Landlord shall have the option of contributing a portion of the
proceeds of the Land Value to the restoration of the Building in
order to reach the ninety five percent (95') requirement. In the
event Landlord does not exercise its option to make the contribu-
tion, Tenant may restore the Building at its own additional cost or
terminate this Lease. If Tenant elects to terminate this Lease
pursuant to the foregoing sentence, then Tenant must give Landlord
written notice of termination within one hundred eighty (180) days
after the vesting of title in the condemning authority. In the
event of a termination of this Lease pursuant to this provision,
Tenant shall retain the Award Balance (together with a proportion-
ate share of costs awarded, but less those costs incurred by
Landlord to secure the Building), Landlord shall retain the Land
Value (together with a proportionate share of costs awarded), and
both parties shall be released from any and all further liability
hereunder.
(b) Should such partial taking or condemnation result in
rendering the part of the Property remaining unsuitable for the
purposes for which the Facility was designed, then Tenant upon
thirty (30) days prior written notice to Landlord, given at any
time within sixty (60) days after the vesting of title in the
condemnor, may cancel and terminate this Lease. The net rental and
other charges hereunder shall then be apportioned as of the date of
termination, and Tenant shall be discharged from responsibility to
restore the Property. In the circumstance of such termination, the
entire Award Balance (together with a proportionate share of costs
awarded) shall be retained by Tenant as set forth in Section
14.03(a) above.
Section 14.04. Disputes. In the event that there shall be any
controversy as to whether the remainder ot the Property is suitable
17
26
for the purposes for which the Facility was designed or if there
shall be any controversy under this Article as to whether there has
been a taking of materially all of the Property, the controversy
shall be relolved by arbitration al provided in Article 26.
Section 14.05. Temporary Taking. If the whole or any part of
the Property or of Tenant's interest under this Lease be taken or
condemned by any competent authority for its or their temporary use
or occupancy, this Lease shall not terminate by reason thereof and
Tenant shall continue to pay, in the manner and at the times herein
specified, the full amounts of the annual rent and all additional
rent and other charges payable by Tenant hereunder, and, except
only to the extent that Tenant may be prevented from so doing
pursuant to the terms of the order of the condemning authority, to
perform and observe all of the other terms, covenants, conditions
and obligations hereof upon the part of Tenant to be performed and
observed, as though such taking or condemnation had not occurred.
In the event of any such temporary taking or condemnation, Tenant
shall be entitled to receive the entire amount of any award made
for such taking, whether paid by way of damages, rent or otherwise.
Tenant covenants that, upon the termination of any such period of
temporary use or occupancy, it will, at its sole cost and expense,
restore the Property, as nearly as may be reasonably possible, to
the condition in which the same was immediately prior to such
temporary taking.
ARTICLE 15. INSURANCE AND INDEMNITY.
Section 15.01. Construction of Building.
(a) Tenant, on or prior to the Possession Date, shall
provide or cause to be provided, and thereafter will keep in full
force and effect, or cause to be kept in full force and effect,
until Substantial Completion of the Building, the following
insurance at no cost to Landlord:
(i) Comprehensive general liability insurance,
naming Tenant as insured, and Landlord and Landlord's mortgagee, if
any, as additional insureds, such insurance to insure against
liability for bodily injury and death and for property damage in an
amount not less than One Million Dollars ($1,000,000.00), combined
single limit, such insurance to include broad form contractual
liability (designating the indemnity provisions of the construction
agreements), such policy to have a maximum deductible of Fifty
Thousand Dollars ($50,000.00);
(ii) Builder's all-risk insurance written on a
completed value (non-reporting) basis with limits as provided in
Section 15.02 below, naming Tenant as named insured, and naming as
additional insureds Landlord and any general contractor engaged by
Tenant. In addition, such insurance will contain an acknowledgment
18
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by the insurance company that its rights of subrogation have been
waived with respect to all of the insureds named in the policy and
an endorsement stating that "permission is granted to complete and
occupy," and if any off-site storage location is used, will cover,
for full insurable value, all materials and equipment on or about
any such off-site storage location intended for use with respect to
the Building, such policy to have a maximum deductible of Fifty
Thousand Dollars ($50,000.00);
(iii) Tenant shall require its general contractor to
carry worker I S compensation insurance in at least the minimum
amounts required by law and shall provide to Landlord a certificate
evidencing such coverage.
(b) No construction of the Building shall be
until Tenant has delivered to Landlord the original
memoranda, or certificates thereof evidencing the
required by this Article 15.
(c) Any proceeds received pursuant to the insurance
coverage required hereunder will be distributed in accordance with
Article 16 hereof.
commenced
policies,
insurance
Section 15.02. Insurance After Substantial Completion of
Building.
(a) Tenant, at its sole cost and expense, covenants and
agrees at all times during the Initial Term and any Renewal Term,
to carry or cause to be carried, in addition to the insurance
required during construction as provided in Section 15.01 above,
insurance coverage of the type and in the minimum limits as
follows:
(i) Insurance on the Property will be carried under
a special form, including contingent exposure from building
ordinances, damage by water, flood, subsidence, tornado, hurricane
and earthquake. Such insurance will be carried in an amount equal
to the full replacement value of the Building, less foundations and
excavations. The insurance will be reviewed annually and modified,
if necessary, as reasonably requested by Landlord.
(ii) Comprehensive public liability insurance will
be carried on the Property and the operation of the Facility
against any liability for bodily injury, death and property damage.
Such comprehensive liability insurance will be on an occurrence
basis, and will have combined single limit liability coverage of
not less than One Million Dollars ($1,000,000.00).
(iii) Excess liability coverage with limits of not
less than Two Million Dollars ($2,000,000.00).
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(b) All insurance provided by or on behalf of Tenant
will also be carried in the names of Landlord and Landlord's
mortgagee, if any, as their respective interests may appear, as
"Additional Insureds."
(c) All insurance required pursuant to the terms of this
Lease shall be carried with responsible insurance carriers legally
doing business in Florida and reasonably acceptable to Landlord.
(d) Landlord shall not have the right to require Tenant
to carry or cause to be carried business interruption insurance or
rent loss insurance. Such insurance coverage, if desired by
Landlord, shall be secured by Landlord at Landlord's sole cost and
expense.
(e) In the event that Tenant's insurance coverage is
cancelled, Landlord may elect to obtain such insurance and Tenant
shall be responsible for the payment of premiums therefor.
Section 15.03. Indemnification of Landlord. Tenant shall
indemnify and save Landlord harmless against all liabilities,
expenses and losses incurred by Landlord as,a result of (a) failure
by Tenant to perform any covenant required to be performed by
Tenant hereunder; or (b) any accident, injury or damage which shall
happen in or about the Property or appurtenances, or res~lting from
the condition, maintenance or operation of the Property; or (c)
failure of Tenant to comply with any requirements of any
governmental authority.
If any claim, action or proceeding is made or brought
against Landlord by reason of any event hereunder, then, upon
demand by Landlord, Tenant, at its sole cost and expense, will
resist or defend such claim, action or proceeding in Landlord's
name, if necessary~ by the attorneys for Tenant's insurance carrier
(if such claim, action or proceeding is covered by insurance), and
otherwise by such attorneys as Landlord shall approve, which
approval shall not be unreasonably withheld.
The provisions of this Section 15.03 shall not extend to
or include any acts, thing, injury, loss, damage, violation,
liability or suit to the extent the same results from or arises out
of the negligence or willful or wanton misconduct of Landlord, its
agents, servants or employees.
Section 15.04. Indemnification of Tenant. Landlord shall, to
the fullest extent allowed by law" indemnify and save Tenant
harmless against all liabilities, expenses and losses incurred by
Tenant as a result of (a) failure by Landlord to perform any
covenant required to be performed by Landlord hereunder; or (b) any
accident, injury or damage which shall happen in or about the
Property or appurtenances caused by or resulting from any
20
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condition, maintenance or operation for which Landlord was
responsible on the Property.
If any claim, action or proceeding is made or brought
against Tenant by reason of any event hereunder, then, upon demand
by Tenant, Landlord, at its sole cost and expense, will resist or
defend such claim, action or proceeding in Tenant's name, if
necessary, by the attorneys for Landlord's insurance carrier (if
such claim, action or proceeding 1s covered by insurance), and
otherwise by such attorneys as Tenant shall approve, which approval
shall not be unreasonably withheld.
ARTICLE 16. DAMAGES TO BUILDING.
Section 16.01. Buildinq Usable. In the event the Building
should be damaged by fire, explosion or any other casualty or
occurrence, and such damage does not render the Building
untenantable, there shall be no abatement of rent, and Tenant shall
repair such damage with due diligence. Landlord hereby assigns to
Tenant any right, title or interest in and to any proceeds of
casualty insurance to which Landlord may be entitled with respect
to such casualty. Such insurance proceeds shall be paid directly
to Tenant by the insurance carrier as long as (a) Tenant utilizes
the insurance proceeds to restore the Building, and (b) there are
no outstanding, uncured, material Events of Default under this
Lease.
Section 16.02. Buildinq Unusable. In the event the Building
should be damaged by fire, explosion or any other casualty or
occurrence, and such damage renders the Building untenantable, the
rent hereunder shall be abated from the date of such casualty until
such time as Tenant may reopen for business after restoration or
repair of such casualty. Tenant shall be obligated to restore the
Building, provided the proceeds of the insurance policy are
sufficient to pay no less than ninety-five percent (95t) of the
total cost of such repair or restoration. If the proceeds of the
insurance policy are less than ninety five percent (95t) of the
amount required to restore the Building, Landlord shall have the
option of contributing a portion of the cost of the restoration of
the Building in order to reach the ninety five percent (95t)
requirement. In the event Landlord does not exercise its option to
make the contribution, Tenant may restore the Building at its own
additional cost or terminate this Lease. If Tenant terminates this
Lease pursuant to the foregoing sentence, then Landlord shall be
entitled to receive the insurance proceeds from the insurance
carrier, or if Tenant has already received such proceeds from the
insurance carrier, then Tenant shall assign such proceeds over to
Landlord.
Section 16.03. Expenditures by Tenant. With respect to Section
16.02, when Tenant repairs and/or rebuilds the Building as therein
21
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provided, Tenant shall be obligated, with reasonable promptness, to
repair or restore the Building to substantially its same condition
as it existed immediately prior to such occurrence, meaning the
same interior and exterior design, and containing a building area
of at least ninety-five percent (95') of its original size, and
shall do so even though the proceeds of any insurance policies
covering the loss shall be insufficient to pay such costs in full,
subject to the ninety five percent (95') requirement detailed in
Section 16.02. However, if such proceeds of insurance exceed the
cost of such rebuilding, Tenant shall be entitled to retain such
surplus, and Landlord shall not be entitled to any portion of such
insurance proceeds.
Section 16.04. Failure of Tenant to Repair or Restore. If
Tenant fails or neglects to repair or restore the Building or the
portion thereof so damaged with reasonable diligence pursuant to
the terms of this Article 16, Landlord may complete such repairs
and restoration with the insurance proceeds paid to Tenant by the
insurance carrier, and Tenant shall assign such proceeds over to
Landlord for such purpose.
Section 16.05. Disputes. In the event that there is any
controversy as to whether the Building is rendered untenantable or
if there be any controversy under this Article 16 in connection
with ascertaining the cost of repair or restoration, the
controversy shall be resolved by arbitration as provided in Article
26.
Section 16.06. Governmental Prohibitions. If Tenant is
prohibited from repairing or restoring the Building in accordance
with Section 16.02 due to statutes, laws, ordinances, rules or
regulations of the appropriate governmental authorities which
prohibit same, Tenant shall have the right, to be exercised by
written notice to Landlord within sixty (60) days of the date
Tenant receives notice from such governmental authorities that
Tenant's proposed repairs or restoration are prohibited, to
terminate this Lease. Such notice from Tenant to Landlord shall
operate to terminate all obligations and liabilities of Tenant
under this Lease from and after the date of such notice, except
those obligations and liabilities which specifically survive
termination of this Lease and except as set forth in this Section
16.06. In the event of termination of this Lease pursuant to this
provision, all proceeds of casualty insurance shall be retained by
Tenant; except, that Tenant shall remove from the Land those
improvements to the Land constructed by Tenant and restore the Land
to a level grade but the foregoing shall not be construed to
obligate Tenant to remove any underground improvements such as
utility lines or to add any fill to the Property.
22
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ARTICLE 17. MAINTENANCI.
Section 17.01. Maintenance by Tenant. Tenant shall at all
times keep the property, including exterior walls and entrances,
roof, all glass and all glass and show windows, moldings, all
partitions, doors, fixtures, equipment and appurtenances thereof,
including exterior or interior lighting, heating and plumbing
fixtures, electrical equipment and air conditioning system, and
the parking areas in good order, condition and repair (including
reasonable periodic painting), damage by unavoidable casualty and
reasonable wear and tear excepted.
section 17.02. Maintenance by Landlord. Landlord shall, at
its own cost and expense, maintain the landscaping on the Property.
In addition, as an inducement to Tenant to enter into this Lease,
Landlord shall maintain the City Plaza (as defined in Article 19)
in good condition and repair, including the maintenance of all
landscaping and other amenities (including the Plaza Amenities) in
the City Plaza.
ARTICLE 18. ALTERATIONS.
section 18.01. Riqht of Tenant. After substantial completion
of the Building, Tenant shall not make or cause to be made any
substantial alterations or additions to the Property without the
prior express written consent of Landlord, which consent shall not
be unreasonably withheld or delayed. Tenant shall furnish to
Landlord the plans and specifications for all substantial
alterations or additions which Tenant desires to make, not less
than thirty (30) days prior to commencement of any work upon the
Property. Tenant shall be responsible to obtain all governmental
approvals and permits prior to constructing any approved
alterations or additions and shall provide a bond for all
substantial alterations or additions in accordance with Article 11.
Section 18.02. Substantial Defined. For purposes of Section
18.01, any alteration or addition which Tenant proposes to make to
the Property costing in excess of $100,000.00 shall constitute a
"substantial" alteration or addition.
ARTICLE 19. DEVELOPMENT OF CITY PLAZA AND REALIGNMENT
OF CONVENTION CENTER DRIVE.
Section 19.01. Development of City Plaza. As an inducement
to Tenant to construct the Building on the Land and develop and
operate the Facility, Landlord shall use its best efforts to
develop and maintain certain improvements on that certain parcel of
land contiguous to the Property and legally described in Exhibit
"B" attached hereto and incorporated herein by reference (the "City
Plaza") . The City Plaza shall contain those improvements and
23
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amenities, including landscaping, depicted on the Site Plan
attached hereto as Exhibit "c" (the "Plaza Amenities"). Landlord
shall construct and continuously maintain the City Plaza and the
Plaza Amenities for the Term of this Lease. In addition to the
development of the City Plaza, Landlord shall use its best efforts
to provide additional access to the Property, at Landlord's sole
cost and expense, by the realignment of Convention Center Drive in
accordance with the Realignment Plan attached hereto as Exhibit
"0". Landlord shall complete the City Plaza and the realignment of
Convention center Drive within three (3) years after the Possession
Date.
ARTICLE 20. SURRENDER OF PROPERTY.
Section 20.01. Surrender of Property. At the expiration of
this Lease, or earlier termination in accordance with the terms of
this Lease, Tenant shall surrender the Property in the same
condition as the Property was in upon Substantial Completion of the
Building, in "broom clean" condition, reasonable wear and tear
excepted and damage by casualty excepted where specifically
provided in this Lease, and shall surrender all keys for the
Property to Landlord at the place then fixed for the payment of
rent. Tenant shall remove all its personal property which is not
permanently affixed to the Building or which is otherwise removable
without substantial damage t,o the Building, including, but not
limited'to trade fixtures, furniture, art work, signs and "inside"
plants, before surrendering the Property, and shall repair any
damage to the Property caused thereby. Tenant's obligation to
observe or perform this covenant shall survive the expiration or
other termination of this Lease. Tenant shall not remove any
ducts, air conditioning compressors, pumps, electrical wiring, or
plumbing pipes or fixtures. Upon surrender of the Property, or
upon expiration of this Lease or earlier termination in accordance
with the terms of this Lease, whichever first occurs, title to the
Building shall thereupon, and without further act of either party,
vest in Landlord, provided, that upon request of Landlord, Tenant
will promptly execute and deliver to Landlord such deed thereto as
Landlord may reasonably request.
ARTICLE 21. EVENT OF DEFAULT BY TENANT.
Each of the following events shall constitute an "Event of
Default" by Tenant under this Lease, and shall entitle Landlord to
exercise any and all remedies set forth in Article 22:
Section 21.01. Monetary. Any failure of Tenant to pay any
rental, additional payments or other sums payable hereunder after
the same shall be due, provided, that such failure shall have
continued for a period of thirty (30) days after: (i) written
notice is given by Landlord to Tenant of Tenant's failure to make
24
33
any such payment on its due date as to the first such default in
any Lease Year or (ii) the due date of any such payment as to the
second and subsequent such defaults in any Lease Year.
Section 21. 02. Abandonment. I f Tenant shall abandon the
Property or suffer this Lease to be taken under any writ of
execution.
Section 21.03. Non-Monetary. Any failure of Tenant to perform
any other terms, conditions, or covenants of this Lease to be
observed or performed by Tenant for more than sixty (60) days after
written notice of such default shall have been given to Tenant by
Landlord; provided, that if such default is not susceptible of cure
within such sixty (60) day period, such period shall be extended
for a reasonable time provided that Tenant has commenced a cure
within such sixty (60) day period and is diligently prosecuting
same.
Section 21. 04. Bankruptcy. Any failure of Tenant to cure,
within sixty (60) days of the occurrence of any of the following,
(a) Tenant shall become bankrupt, or shall tile any debtor
proceedings, (b) Tenant shall take or have taken against it in any
court pursuant to any statute either ot the United States or of any
state, a petition in bankruptcy or for the appointment of a
receiver for all or a portion of Tenant's property, or. ec) Tenant
makes an assignment for the benefit of creditors.
ARTICLE 22. LANDLORD'S REMEDIES.
Section 22.01. Remedies for Tenant's Default. If any of the
Events of Default shall occur, the Landlord may, at its option,
institute such proceedings as in its opinion are necessary to cure
such defaults and to compensate Landlord for damages resulting from
such defaults, including but not limited to the right to give to
Tenant a notice of termination of this Lease. Subject to Article
24 below, if such notice is given, the tera of this Lease shall
terminate upon the date specified in such notice from Landlord to
Tenant, as fully and completely a. if that date were the date
herein originally fixed for the expiration of the Term of this
Lease. On the date so specified, Tenant shall then quit and
surrender the Property to the Landlord pursuant to the provisions
of Article 20. Upon the termination of this Lease, subject to
Article 24 below, all rights and interest of Tenant in and to the
Property and every part thereof shall cease and terminate and
Landlord may, in addition to any other rights and remedies it may
have, retain all sums paid to it by Tenant under this Lease. In
addition to the rights set forth above, Landlord shall have the
right to pursue any or all of the following:
(a) the right to injunction or other similar relief
available to it under Florida law against Tenant; and/or
25
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(b) the right to maintain any and all actions at law or
suits in equity or other proper proceedings to obtain damages
resulting from Tenant's default.
Section 22.02. Limitation on Landlord's Remedies.
Notwithstanding any contrary provision of this Lease, upon the
occurrence of an Event of Default prior to the Substantial
completion of the Building by Tenant, and so long as Tenant has not
allowed the continuance of any lien on the Land contrary to the
provisions of this Lease, Landlord's sole remedies for an Event of
Defaul t hereunder shall be (a). the right to enforce the Performance
Bond, and (b) the granting by Tenant of title to any improvements
on the Land to Landlord, as agreed upon and liquidated damages.
The parties agree that damages suffered by Landlord as the result
of an Event of Default prior to the Substantial Completion of the
Building cannot be estimated with any degree of certainty and that
the right to enforce the Performance Bond and the granting by
Tenant of title to any improvements to Landlord is a reasonable
estimate by the parties of compensation for damages suffered by
Landlord in the foregoing circumstances.
ARTICLE 23. EVENTS OF DEFAULT BY LANDLORD
AND TENANT'S REMEDIES
Section 23.01. Events of Default. The failure of Landlord to
perform any of the covenants, conditions and agreements of this
Lease which are to be performed by Landlord and the continuance of
such failure for a period of sixty (60) days after notice thereof
in writing from Tenant to Landlord (which notice shall specify the
respects in which Tenant contends that Landlord failed to perform
any such covenant, conditions and agreements) shall constitute and
"Event of Landlord's Default," unless such default is one which
cannot be cured within sixty (60) days and Landlord within such
sixty (60) day period shall have commenced and thereafter shall
continue diligently to prosecute all actions necessary to cure such
defaults.
Section 23.02. Remedies for Landlord's Default. If an Event
of Landlord's Default shall occur, Tenant, to the fullest extent
permitted by law, shall have the right to pursue any or all of the
following remedies:
(a) the right and option to terminate this Lease
and all of its obligations hereunder by giving notice of such
election to Landlord, whereupon this Lease shall terminate as of
the date of such notice; and/or
(b) the right to a writ of mandamus, injunction or
other similar relief, available to it under Florida law against
Landlord; and/or
26
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(c) the right to maintain any and all actions at law
or suits in equity or other proper proceedings to obtain damages
resulting from Landlord's default.
ARTICLE 24. LANDLORD'S AND TENAN'l" S AGREEMENT TO RECOUP COST
OF IMPROVEMENTS IN THE EVENT OF DEFAULT.
Section 24.01. Landlord's and Tenant's Aqreement. Both
parties recognize that each of the parties has entered into this
Lease in order to provide an educational and cultural benefit to
the community. Tenant recognizes Landlord's desire that the Land
continue to be utilized for the public purpose for which this Lease
was granted and Tenant shall use its best efforts to continue to
utilize the Property in accordance with the intent of this Lease.
Landlord recognizes Tenant's commitment to developing the Facility
and further recognizes the financial cost to Tenant in constructing
the Building on Landlord's Land. However, both parties recognize
that, notwithstanding the best efforts of Tenant, there is a
possibility that an Event of Default could occur under this Lease.
Section 24.02. Landlord to Proceed to Exercise Remedies. If
an Event of Default should occur by reason of Tenant's failure to
continue utilizing the Property for the conduct of its business,
the parties agree to use their best faith efforts to recoup the
cost of the Building by complying with the provisions of Section
24.03 below. Upon the happening of an Event of Default under
Sections 21.02 or 21.04, and the expiration of the applicable cure
period, Landlord shall be permitted to proceed with any and all of
the remedies provided for under this Lease.
Section 24.03. The Qualified Replacement Tenant. Notwith-
standing anything to the contrary contained in this Lease, in
exercising its remedies upon an Event of Default under Sections
21.02 and 21.04, Landlord may begin searching for an appropriate
entity to lease and utilize the Property (the "Qualified Replace-
ment Tenant"). Landlo):'d shall, however, not enter into any
agreement with a Qualified Replacement Tenant or in any other
manner encumber the improvements, the leasehold estate or enter
into a substitute lease agreement for a period of nine (9) months
after the occurrence of the Event of Default (the "Search Period") .
During the Search Period, Tenant shall be permitted to solicit
offers fro. Qualified Replacement Tenants. Each of Landlord and
Tenant shall negotiate with prospective Qualified Replacement
Tenants during the Search Period in order to produce the best offer
for a new lease with Landlord (the "Best Offer"). Any and all
offers shall consist of a list of the qualifications of the
Qualified Replacement Tenant to utilize the Property in a manner
that would benefit the public and otherwise meet the qualifications
of Landlord. In addition, the offer shall include the amount such
Qualified Replacement Tenant would agree to pay for the Building.
It is understood and agreed that, in the event any offer made by a
27
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Qualified Replacement Tenant to purchase the Building is accepted
by both Landlord and Tenant as being the Best Offer, the first Two
Million Five Hundred Thousand Dollars ($2,500,000.00) of any
payment made by such Qualified Replacement Tenant for the Building
will be payable to Landlord as a reimbursement for the Grant (as
defined in Section 27.01 below). Thereafter, Tenant shall be
compensated up to the total cost and expense to Tenant of the
Building. Thereafter, the remaining balance of all payments made
by the oualified Replacement Tenant to purchase the Building shall
be payable to Landlord.
Section 24.04. Dispute. In the event Landlord and Tenant are
unable to agree upon which offer is the Best Offer, such dispute
shall be handled by arbitration in the manner provided in Section
26.01 below.
ARTICLE 25. QUIET ENJOYMENT.
Section 25.01. Quiet Enjoyment. Tenant, on paying the rent
and performing the covenants and conditions hereof, shall and may
peaceably and quietly have, hold and enjoy the Property for the
Term hereof, and Landlord agrees to defend Tenant's rights
hereunder against all adverse claims except those persons claiming
by, under or through Tenant. Notwithstanding the foregoing,
Landlord shall be permitted to enter the Building in the event of
an emergency.
ARTICLE 26. ARBITRATION.
Section 26.01. Arbitration. Whenever any provision of this
Lease provides that a matter shall or may be determined by
arbitration in accordance with this Section 26.01 and either party
requests in writing from the other that such matter be so
determined, then it shall be settled by arbitration in accordance
with the Commercial Arbitration Rules of the American Arbitration
Association, and the arbitration decision or award shall be final
and binding upon the parties hereto and subject to no appeal, and
shall deal with the question of the cost of arbitration in all
matters related thereto. In that regard, the parties shall
mutually select one arbitrator, but in the event that the parties
cannot agree upon the arbitrator, then the American Arbitration
Association shall appoint one. Judgment upon the award or decision
rendered may be entered into any court having jurisdiction, or
application may be made to such court for an order of enforcement.
ARTICLE 27. MISCELLANEOUS.
Section 27.01. city Funding. Landlord agrees to provide
funds in the amount of up to TWO MILLION FIVE HUNDRED THOUSAND AND
28
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NO/100 DOLLARS AND NO/100 (U.S.$2,500,000.00) in the form of a
grant from the Tourist and Convention Center Expansion Authority
("TCCEA") to pay the cost of developing the Land and constructing
the Building (the "Grant"). The entire Grant shall be available on
or before the Possession Date and shall be disbursed in accordance
with the terms of the Construction Agreement. The Construction
Agreement shall provide for the payment of the actual cost of
construction on a pari passu basis one-half from Tenant's funds and
one-half from the Grant, until the total amount of the Grant has
been expended. Prior to disbursement of the Grant, Tenant must
provide Landlord with evidence that Tenant has $2,500,000.00
available to it for funding of Tenant's portion of the construction
costs.
Section 27.02. Parking. Landlord shall provide, at a
discounted rate that is less than the fair market rental rate, one
hundred (100) parking spaces for utilization by the officers,
directors and employees of Tenant. The parking spaces shall be
made available through the issuance of a monthly parking pass and
shall be located on property owned by the City of Miami Beach in
any garage or other parking facility located within one thousand
(1,000) feet from the perimeter of the Land.
Section 27.03. Hazardous Waste. Notwithstanding any contrary
provisions of this Lease: (a) Landlord shall be liable to all
third parties and to Tenant for, and shall indemnify and hold
Tenant harmless from, any loss, damage, cost, or expense, including
without limitation, reasonable attorneys' fees at trial and
appellate levels, incurred, arising from, or connected with the
existence, as of the Possession Date, on, under, in or upon the
Land of any "hazardous waste" or "hazardous substance", as those
terms are defined by applicable federal or state statute or by
rules or regulations promulgated pursuant thereto, as amended from
time to time, and (b) Tenant, after the Possession Date, shall be
liable to all third parties and to Landlord, and shall indemnity
and hold Landlord harmless from, any loss, damage, cost, or
expense, including, without limitation, reasonable attorneys' fees
at trial and appellate levels, incurred, arising from, or connected
with the placement by Tenant, after the Possession Date, of any
"hazardous waste" or "hazardous substance" on, under, in or upon
the Land, as those terms are defined by applicable federal or state
statute or any rules or regulations promulgated pursuant thereto,
as amended from time to time. The provisions of this Section 27.03
shall survive the indemnity and termination or earlier expiration
of this Lease.
Section 27.04. Environmental Report. Within sixty (60) days
of the Lease Execution Date, Tenant shall order an environmental
report of the Land to be prepared by an environmental engineering
firm reasonably acceptable to Landlord (the "Environmental
Report"). The environmental engineer will be required to complete
the Environmental Report within one hundred twenty (120) days of
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the Lea.e Execution Date and the co.t of the Invironmental Report
.hall be .hared equally by the partie.. In the event the
Environment.al Report di.clo.e. the exi.tence of "h.zardoul wa.te"
or a "h.zardou. .ubltance" on the Land, the partie. .hall In.truct
the environment.l engineer to e,timete the co.t of remediat1on.
Within thirty (30) day. of T.nant'. receipt of the Environmental
Report (together with the e.timat.d co.t of remediation), Ten.nt
Ihall have the option to terminate thl. Leal. by providing notic.
to Landlord pur.u.nt to the t.rm. of thi. Lea.e. In the .vent
Tenant doe, not .x.rci.. it. option. to terminate the Lea.e,
Landlord .hall have an additional twenty (20) day., after the
expiration of Tenant'. thirty (30) day option period, to further
review the Environmental Report and e.timated co.t. In the event
the estimated cost of remediation exceed. TWO MILLION FIVI HUNDRED
THOUSAND ~ND NO/100 DOLLARS ('2,500,000.00), Landlord may terminate
thl' L.... by providing notic. to T.nant in accordance with the
provi.ion. of the I......
S.ction 27.05. Performance. at the eatre of t.he Performin
Arts. From and after t e Commencem.nt Date, .nant,. cau.e it.
Ballet Company to perform the majority' of it. Dade County
performance. at the Theatr. of the Performing Art. ("'!'OPA") located
in the City of Miami Beach. In no event .hall there be le.. than
twenty (20) performance. by the Ballet Company at 'l'OPA in a
calendar year, .ubject to TaPA'. availability. Landlord and Tenant
.hall each u.. their good falth .ffort. to negoti.te .nd execute ·
performance agreement for T.nant" utill%ation of TOPA, which
.hall, among oth.r thing., incorporate the provi'ion. of thl.
S.ct.ion 27.05 (th. "P.rformance Agreement"), within five (5) month.
from the L.... ExecutIon Date. If for any r...on, notwith.t.nding
the good f.ith .ffort. of both partie., Landlord .nd Ten.nt ar.
un.ble to .gre. upon the t.rms of the Performance Agreement during
such five (5) month period, all op.n and di.puted i..u.. Ih.ll be
submitted to .rbitration in accordance with the provision. of
paragrAph 25.01. Th. d.ci.ion reach.d 1n the arbitration .hall be
final and the partie. will execut. the Performance Agreement
recommended by the arbitrator.
S.ction 27.06. City Participation. T.nant .gr..s that it
shall appoint a d..ignated repre..ntative of the City of Miami
Beach to it. Board of Tru.t.e. for each and every year of the Term
of thi. Lea... At the pre.ent time, the .tandard term for a m.mber
of the Miami City Ballet Board of Tru.t.e. 1. for a period of three
(3) years. The C1ty CommiSSion of the City of Miami Beach .hall
upon recommendation of the City Manager, at le..t three (3) month.
pr10r to the beginning of .ach new thr.e-year term, ..lect a
repre.entative to .it on the Board of Tru.te.. and .h.ll .0 notify
Tenant in accordanc. with the notice provi.ion. of thi. L.....
,action 21.07. Broker.. Landlord and Ten.nt repre.ent to e.ch
other that no broker or re.l e.tate .ale.man ha. b.en involved 1n
the proeurin9 of th1. I..... or the negoti.tion of thi. Lea... If
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:.t9
any claim for brokerage commi..ion 1. made .. a re.ult of thi.
transaction, Landlord .nd Tenant .hall each indemnify and hold
harmle.. the oth.r plrty for Iny 10", damage, eOlt or .xpen.e,
including r.alonable attorneYI' fll' It trial and .ppellate lIVIII,
which .hall b. lu.ta1nld by the othlr party, .. a re.ult of . claim
for brokerage commi..ion mad. through Landlord or T.nant, a. the
cas. may be. The provision. of th1. S.ction 27.05 .hall lurviv.
termination or .arlier expiration of th1. Leas..
S.ction 27.08. Notice.. All notice. requir.d or option.
.xerci..d under thi. Lea.e .hallb. given in writing and .hall be
deemed to be properly served if ..nt by regi.tered or certified
mail with return receipt reque.ted to Landlord or to Tenant where
r.quired under thi. Lea.., at the address.. ..t forth b.low or to
.uch oth.r .ddre.... a. . party may reque.t in wr1t1ng. The dati
such written notic. or option .hall b. d.e.ed to have been given
ahall be three (3) day. aft.r the date upon which the .ame i.
depo.ited in the United State. mail.
To Landlord:
City of Miami Beach
1700 Convention Center Driv.
Miami leach, Florida 33139
Attention: City Manager
City of Miami B.ach
1700 Convention C.nter Driv.
Miami B.ach, rlorida 33139
Att.ntion: City Attorn.y
Miami City Ballet, Inc.
905 Lincoln Road
Miami B.ach, Florida 33139-2601
Attention: Dir.ctor of Administration
With a copy to:
To Tenant:
Shuttl , Bow.n
1500 Miami Cent.r
201 South Bilclyne Boul.vard
Miami, Florida 33131
Attn.: Judith A. Burke, E.q.
Section 27.09. No Waiver. No waiver of any covenant or
condition of thi. tease by either party .hall be de.med to imply or
constItute a waiv.r in the future of the .ame covenant or condition
or of any other covenant or condition of thil Le.ae.
With a copy tOI
I
Section 27.10. Memorandum of L..... Landlord and Tenant
.gre. that neither will r.cord this L.... and agree th.t each party
will execute and record a memorandum of thI. L.... at any time if
the other party .0 reque.t..
Section 27.11. Landlord', Rlqht of Entry. At any time upon
r.a.on.ble prior notice to Tenant, Landlord may have rea.onable
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ace... to In.pect the Property, and for ninety (90) day. prior to
the Ixp1rat1on Date, Landlord .hlll hive rea.onable Ieee.. to the
Property tor exhibiting the lame to prolpective tenant..
Section 27.~. E.toppel Certificat.. Within t.n (10) day.
after requ..t by:Llndlord or Tenant, or in the .vent that upon any
..le, .ssignment or hypothecation of the Property by Landlord, an
estoppel certificate .hall be requir.d from the non-r.qu..ting
p.rty. Tenant and Landlord agr.. to d.liv.r in recordable form a
certificate to any propo.ed mortgagee or purcha.er, or to Landlord
or Tenant, certifying (if .uch be the ca.e) that this Lea.. i. in
full force and .ffect and that th.re ar. no d.t.n... or off.et.
ther.to, or .tating tho.. claimed by T.nant or Landlord.
Section 27.13. Covenant. RQn with Land. All right. and
li.biliti.1 herein given or impo.ed on either of the parti..
h.reto, Ih.1l inure to the ben.fit of and be blndinq upon the
heir., .xecutor., admini.trator., lucc...or. .nd a..1gnl of the
partie. hereto, except I. otherwise .xpre..1y ..t forth in this
Le....
Section 27.14. Attorne~" F.... If it become. neces.ary for
Landlord or Ten.nt to .nforce their r..p.ctive rightl und.r this
L.... or .ny part hereof through litigation or arbitration, T.nant
and Landlord agr.e that the pr.vailing party .hall be entitled to
recov.r trom the oth.r party III co.t. and .xpen.e. ot luch
litigation or arbitration, including a re..onable .ttorn.y'. fee
and co.t., for all trial and app.llate proce.ding..
Section 27.15. Plural. Th. word. Landlord .nd Tenant when
u..d herein .hall r.spectively ref.r to .nd includ. the .ingular,
plural, f.minine, masculin., or neut.r, a. the ca.e may b..
Section 27.16. Compli.nce with Law.. Tenant .h.ll, at ita
own co.t and .xpen.., promptly ob.erv. and comply with all pre.ent .
and future law., ordinance., requirementl, order., directi v..,
rule. .nd regulation. of III gov.rnmental .uthoritie. .ffecting the
Property or any part thereof wheth.r the .ame ar. 1n force on the
Le..e Execution Dat. or may be in the future p....d, enacted or
dIr.c~ed, an4 Tenant .hall pay all co.t., expense., l1ab11iti..,
1088e8, damaq..~ tin.., penaltie., cl.im. and demand., includlnq
reasonable attorney'. fe.., that may in any manner ari.. out of or
be impo.ed becaus. of the tailure of T.nant to comply with thi.
Section 27.1'. Nothing 1n this Section 27.1', however, Ih.ll be
construed a. imposing any financial lIability on Ten.nt prior to 'I
the Commencement D.te not otherwi.e .pacifically impoled by thi.
L.....
Stetion 27.17. Divi.ibility. If .ny on., or more, of the
term., covenant. and agreement. contained in thi. L.... .hall be
.et a.id. or found to b. un.nforceabl. by a court of competent
jurisdiction, then neverthel... and notwith.tanding, all remaining
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;
term., covenant. and agreement. herein .hall remain 1n full force
and effect.
Section 27.18. andlord and Tenant Not in Busine.. To ether.
It i. under.tood and agre. that neit er Landlor nor Tenant .ha 1
in any event be con.trued or held to be a partner or a..oeiate of
the other party in the conduct of their re.pectiv. bu.in....., nor
.hall either party be liable for any debt. incurred by the other
party in the conduct of their re.pective bu.ine...., but it 1.
understood and agreed that the relation.hip i. and at all time.
.hall remain that of Landlord and Tenant.
Section 27.l!. Radon Di.clo.ure. Radon Ga.: Radon 1. a
naturally occurring radio active ga., that, when it ha. accumulated
in a building in .ufficient quant1t1e. may pre.ent health ri.k. to
per.on. who are expo.ed to it over time. Level. of radon that
exce.d rederal and State Guideline. have been found in buildings 1n
Florida. Additional information regarding radon and radon te.t1ng
may be obtained from your County public h.alth unit. (Note: This
paraqraph 1. provided for informational purpo.e. pursuant to
Sectlon 404.056 Sub.ection 8, Florida Statute., 1988.]
Section 27.20. Governinq Law. Thi. Lea.. .hall be con.trued
and enforced in accordance with the lawI of the State of rlorida.
IN WITNESS WHEREOF, Landlord and Tenant have caused these
present. to be execut.d the day and year fir.t above written.
WITNESSES:
LANDLORD:
CITY or MIAMI BEACH, a Florida
municipal corporation
ATTEST:
City Clerk
BY'
Seymour Gelber, Mayor
,
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WITNESSES:
Name:
Name:
M'M125170U. L'"
FORM APPROVED
LEGAL DEPT.
-
By jc..:)
Date ~ - \ l--~ '-\
TENANT:
MIAMI CITY BALLET, INC., . Flor1da
not-for-profit corporat1on
BYI
,
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EXHIBIT "A"
LEGAL DESCRIYnON OF PARCEL A
A pan of SectiOD 34, Township S3 South, Ran,e 42 East, beina more particularly described
as follows:
Commence at the intersection of the center lines of Meridian Avenue aDd 17th Street, IS
shown in the Amended Plat of Golf Coune Subdivision of the Alton Beach Realty
Company, recorded in Ptat Book 6 at Pa,e 26, Public Records of Dade County, F1orida;
thence run South 89. S9' OS. East, alon, the center line of 17th Street for a distance of
768.S2 feet to a point; thence run Nonh o. 00' S8. West for a distance of 173.38 feet to the
POINT OF BEGINNING; thence continue alon, the last described bearin, for a distance
of 33.12 feet to a point; thence run Nonh 89. S9' S2" East for a distance of 99.34 feet to
a point; thence run Nonh O. 06' S3- West, for a distance of 144.02 feet to a point; thence
run Nonh 89. S6' 3,. West, for a distance of J95.00 feet to a point of tanaeocy; thence run
alo", the arc of a circular curve concave to the Southeut havina a central aoaJe of SO. 06'
23. and a radius of 40.00 feet for a distance of 34.98 feet to a point of intersection with a
circular curve which radius bean Nonh 70. 28' 44. East from said point of intenection;
thence run alon, the arc of said a.rve, which is concave to the Nonheast, bavina a central
anile of JO. 40' 19"' and a radius of lSS.OO feet for a distance of 82.98 feet to a point;
thence run South .... 26' SS. East for a distance of SI.26 feet to a point located on a
circular curve whiduadius bean South 4S. 33' OS. West from said point; thence run alona
the arc of a circular curve, concave to the Southwest havin, a central anale of J6. 12' S8"
and a radius of 260.29 feet for a distance of 73.67 (eet to the POINT OF BEGINNING.
~OTE: This legal description is subject to future modification
by mutual agreement of the parties.
44
Please note that section 27.05. Performances at the Theatre of the
Performina Arts is still under discussion. The Tourist and
Convention Center Expansion Authority (TCCEA) and Administration
seek that the Miami City Ballet hold a minimum of fifty percent
(50%) of their performances but not less than twenty (20) annually
at the Jackie Gleason Theater of the Performing Arts (TOPA). Miami
City Ballet is willing to agree to this until such time as the
Performing Arts Center opens. After the opening they have offered
a minimum of fifty percent (50%) of the performances which would be
less than twenty (20) (approximately fourteen (14) performances).
A verbal report regarding this issue will be made at the April 13,
1994 Special City commission Meeting.
45