Agreement
OFFICE OF THE CITY ATTORNEY
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MURRAY H. DUBBIN
City Attorney
Telephone:
Telecopy:
(305) 673-7470
(305) 673-7002
April 9, 1999
Ms. Cathy Colonnese
Porto fino Entities
404 Washington Avenue
Suite 120
Miami Beach, Florida 33139
Re: Lease Agreement for Garage at the Yacht Club at Portofino
Dear Cathy:
I am enclosing an executed original of the subject lease agreement for your records, and
by copy of this letter, I am also sending an original to Matt Gorson at Greenberg, Traurig.
With best regards, I am
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Enclosures
cc: Christina M. Cuervo
Assistant City Manager (w/enclosures)
Marla Dumas
Redevelopment Coordinator (w/enclosures)
Robert Parcher
City Clerk (w/original oflease)
f':\A~U:VL\POR1'Of1N\Y ACm'CL.B.COL
1700 Convention Center Drive - Fourth Floor - Miami Beach, Florida 33139
LEASE AGREEMENT
THIS LEASE AGREEMENT (the "Lease") is made and entered into
as of the 30th day of November, 1998, by and among YACHT CLUB AT
PORTOFINO, LTD., a Florida limited partnership ("Landlord"), the
CITY OF MIAMI BEACH, FLORIDA, a Florida municipal corporation
("City"), and the MIAMI BEACH REDEVELOPMENT AGENCY, a Florida
public agency organized and existing pursuant to the Community
Redevelopment Act of 1969 (Chapter 163, Part III, Florida
Statutes, as amended) ("Agency") [collectively, the City and
Agency are hereinafter referred to as "Tenant"]
WIT N E SSE T H:
In consideration of the payments of rents and other charges
provided for in this Lease, the covenants and conditions herein-
after set forth, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Land-
lord and Tenant hereby covenant and agree as follows:
1. CITY UNIT: Landlord hereby leases to Tenant and Tenant
hereby leases from Landlord, upon the terms and conditions here-
inafter set forth, that certain City Unit (the "City Unit"),
consisting of one hundred fifteen (115) parking spaces as the
same may be adjusted pursuant to paragraph 4(b) below (the "City
Parking Spaces") and permanent laundry, lavatory and shower
facilities, all as graphically depicted on Exhibit "A" attached
hereto contained within the overall parking structure (the
"Parking Garage") to be constructed upon the real property
described on Exhibit "B" attached hereto (the "Property"). For
purposes hereof, the balance of the Parking Garage other than the
City Unit, shall hereinafter be referred to as the "Private
Unit".
Tenant recognizes and agrees that the City Unit shall be
located within or as part of a larger structure; and, in that
regard, there shall be no air rights available to Tenant, all
such rights as well as all necessary easements for support below
and adjacent to the City Unit being reserved to Landlord.
2. TERM: This Lease shall be for a term (the "Term") of
one hundred one (101) years, unless sooner terminated or extended
as provided herein. The Term shall commence (the "Commencement
Date") upon the earlier of the Completion Date or the Possession
Date (as each of those dates are hereinafter defined). For all
purposes hereunder, the Parking Garage shall be deemed to have
been completed (the "Completion Date") so long as (a) the Parking
Garage has been constructed in substantial accordance with the
"Plans and Specifications" set forth on Exhibit "C" attached
hereto, (b) the City Unit is fully operational and ready to be
opened for business on a normal business basis in a manner
consistent with the Operational Standards (as hereinafter
defined), without undue danger to users, (c) Landlord has
received a certificate of occupancy from the City permitting the
operation of the City Unit and (d) the "punch list" items
referred to in paragraph 3 below have been substantially
completed. The construction of the City Unit described in the
Plans and Specifications shall be deemed to have been completed
in substantial accordance with the Plans and Specifications, not-
withstanding that minor adjustments may be required by Landlord
or minor errors or omissions of Landlord may require correction,
provided that, subject to section 3 below, such adjustments and
corrections are made within a reasonable amount of time after
discovery of same. For purposes hereof, the "Possession Date"
shall be deemed to be the first date that the Tenant or the
Marina Lessee (as defined in the Development Agreement, as
hereinafter defined) enter into possession of the City Unit, as
evidenced by the use of the City Unit by Tenant, the Marina
Lessee or the Licensees (as hereinafter defined). Upon the
request of Landlord, Tenant shall join in the execution of an
agreement stipulating the Commencement Date and the date upon
which this Lease terminates.
Notwi thstanding the foregoing, provided that Tenant is not
then in default under the terms of this Lease (and no act has
occurred which, with the passage of time would constitute a
default), Tenant shall have the option to renew the term of this
Lease for one (1) additional one hundred one (101) year period,
for a single installment of base rent equal to $101.00 plus any
applicable sales tax thereon (if any) due and payable when the
option is exercised, said option to be exercised by Tenant, if at
all, by Tenant's delivery of written notice to Landlord of its
election to renew not less than one hundred eighty (180) days
prior to the then expiration date of the Term (failing which
Tenant shall be deemed to have waived its option to renew) .
Tenant agrees to surrender to
Term of this Lease and/or upon
termination of this Lease, the City
Landlord, at the end of the
any cancellation or early
Unit in as good condition as
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the City Unit was at the beginning of the Term of this Lease,
ordinary wear and tear, and damage by fire or other casualty not
caused by Tenant I s negligence excepted. Tenant agrees that if
Tenant does not surrender the City Unit to Landlord at the end of
the Term of this Lease, then Tenant will pay to Landlord, to the
extent permitted by law, all damages that Landlord may suffer on
account of Tenant1s failure to so surrender to Landlord
possession of the City Unit, and will indemnify, to the extent
permitted by law, and save Landlord harmless from and against all
claims made by any succeeding tenant of the City Unit against
Landlord on account of delay of Landlord in delivering possession
of the City Unit to the succeeding tenant so far as such delay is
occasioned by failure of Tenant to so surrender the City Unit in
accordance herewith or otherwise. Tenant shall provide Landlord
with reasonable prior written notice of the date(s) scheduled by
Tenant to move out of the City Unit, and shall reasonably
coordinate the moving out process with Landlord. No receipt of
money by Landlord from Tenant after termination of this Lease or
the service of any notice of commencement of any suit or final
judgment for possession shall reinstate, continue or extend the
Term of this Lease or affect any such notice, demand, suit or
judgment.
3. ACCEPTANCE OF CITY UNIT: Entry into possession of the
City Unit by Tenant or the Marina Lessee, as evidenced by the use
of the City Unit by Tenant, the Marina Lessee or the Licensees
will constitute acknowledgment by Tenant that the City Unit is in
the condition in which Landlord was required to place the City
Unit under the terms of this Lease and that certain Parking
Agreement by and between West Side Partners, Ltd., a Florida
limited partnership, and Tenant, dated as of January 10, 1996 and
recorded in Official Records Book 17077, Page 1196 of the Public
Records of Dade County, Florida (the "Parking Agreement") and
that Landlord has performed all of its obligations relating to
construction of the City Unit, except for (i) those defects, if
any, in construction from the Plans and Specifications, other
than latent defects therein, set forth on a written list ("punch
list") to be delivered by Tenant to Landlord within thirty (30)
days after the date Landlord advises Tenant that the City Unit is
ready for possession, and (ii) those latent defects therein as to
which Tenant notifies Landlord, in writing, within twelve (12)
months of the Possession Date. With respect to the City Unit, at
the expiration of such 12-month period, Landlord shall assign to
the Tenant any warranty rights obtained from contractors,
subcontractors and suppliers which remain outstanding at such
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time. Landlord shall, upon receipt of the list referred to in
subparagraph (i) hereof, commence to correct all such defects
which require correction in order for the construction of the
City Unit to comply in substantial accordance with the Plans and
Specifications.
4.
Rent" in
following,
follows:
BASE RENT:
the amount
said Base
Tenant agrees to prepay to Landlord "Base
which is the aggregate of all of the
Rent to be payable in installments as
(a) a "Purchase Price Component" in the amount of One
Million Two Hundred Seventy Five Thousand and NO/100 Dollars
($1,275,000.00), together with any sales tax due thereon (if
any), payable as follows: (i) simultaneously with the execution
hereof, an amount equal to $79,687.50 for each month from and
including January, 1998 through and including the month of
execution [so, by way of example only, if execution occurs in
November, 1998, this sum would be $876,562.50 ($79,687.50 x 11
months)], together with any sales tax due thereon, and (ii) equal
monthly installments in the amount of $79,687.50, together with
any sales tax due thereon (if any), with the first such
installment due and payable on the first day of the month
following the date of execution hereof, and five (5) subsequent
payments due and payable on the first day of each month
thereafter until such time as the Purchase Price Component has
been paid in full. Anything to the contrary notwithstanding, the
percentage of the Purchase Price Component paid shall not exceed
the percentage of completion of the City Unit improvements as
certified to Tenant by Landlord's architect or engineer; and
(b)
of this
thereon
a single installment of
Lease equal to $101.00,
(if any), due and payable
Base Rent for the initial term
plus any applicable sales tax
on the Commencement Date;
all such payments to be made without any offset or deduction
whatsoever, in lawful money of the United States of America, at
Landlord's address specified in paragraph 26 below or elsewhere
as designated from time to time by Landlord's written notice to
Tenant. Notwithstanding the foregoing, the parties agree to
adj ust the Purchase Price Component on the basis of the actual
number of parking spaces shown on the final "as built" Plans and
Specifications for the City Unit delivered at the time of
completion of construction and delivery to the Tenant if and to
the extent such actual number of spaces varies from the 115
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currently shown in Exhibit "C" hereto; provided, however, that
any spaces which are lost as a result of any request by Tenant or
the Marina Lessee to construct alternative facilities shall,
anything to the contrary notwithstanding, remain counted as
spaces hereunder for purposes of computing Base Rent and
Additional Rent hereunder. Any such adjustment shall be made at
the rate of $10,000 per space (added for each additional space
built and delivered in excess of 115 or subtracted for each space
less than 115 built and delivered) such adjustment to be made
between the parties in full within 30 days following delivery of
the "as built" plans and specifications which shall be provided
by Landlord to Tenant as soon as practical following completion
and delivery of the City Unit.
All payments towards the Purchase Price Component shall be
made by cashier's check or wire transfer of cleared U.S. funds.
To secure and pay the obligations of the Tenant to pay the
Purchase Price Component, the City and Agency, as appl icable,
pledge, agree, and covenant as follows:
(i) the Agency pledges, agrees and covenants to utilize all
tax increment revenues available and necessary from the
Redevelopment Area (as defined in the Development Agreement)
pursuant to Section 163.387, Florida Statutes, as amended
(subject only to any prior pledge of these revenues made before
the January 10, 1997 and the pledge set forth in Section 6 of
that certain Agreement by and among, inter ~, Landlord and
Tenant, dated November 7, 1995, recorded on November 9, 1995, in
Official Records Book 16987, at Page 1197, of the Public Records
of Dade County, Florida (the "Development Agreement"), the pledge
hereunder being junior, inferior and subordinate in all respects
to the pledge in favor of bonds issued under the provisions of
Resolution No. 81-89, as amended, adopted by the Agency on June
21, 1989, as to lien on and source and security for payment and
in all other respects) to pay the monthly installments of the
Purchase Price Component as required herein (and provided that
the foregoing shall not be deemed to prohibit a subordinate
pledge); and
(ii) to the extent the tax increment revenues under
subparagraph (i) above are insufficient or for any other reason
are unavailable, the City agrees to appropriate in its annual
budget, by amendment, if necessary, from Non-Ad Valorem Funds (as
hereinafter defined) lawfully available in each fiscal year,
amounts sufficient to satisfy the monthly installments required
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herein. Such covenant and agreement on the part of the City to
budget and appropriate such amounts of Non-Ad Valorem Funds shall
be cumulative to the extent not paid, and shall continue until
such Non-Ad Valorem Funds or other legally available funds in
amounts sufficient to make all such required payments shall have
been budgeted, appropriated and actually paid. Notwithstanding
the foregoing covenant of the City, the City does not covenant to
maintain any services or programs, now provided or maintained by
the City, which generate Non-Ad Valorem Funds.
Such covenant to budget and appropriate does not create
any lien upon or pledge of such Non-Ad Valorem Funds, nor does it
preclude the City from pledging in the future its Non-Ad Valorem
Funds, nor does it require the City to levy and collect any
particular Non-Ad Valorem Funds, nor does i t give Landlord a
prior claim on the Non-Ad Valorem Funds as opposed to claims of
general creditors of the City. Such covenant to appropriate Non-
Ad Valorem Funds is subj ect in all respects to the payment of
obligations secured by a pledge of such Non-Ad Valorem Funds
heretofore or hereinafter entered into (including the payment of
debt service on bonds and other debt instruments). However, the
covenant to budget and appropriate in its general annual budget
for the purposes and in the manner stated herein shall have the
effect of making available in the manner described herein Non-Ad
Valorem Funds and placing on the City a positive duty to
appropriate and budget, by amendment, if necessary, amounts
sufficient to meet its obligations hereunder; subject, however,
in all respects to the restrictions of Section 166.241(3),
Florida Statutes, which provides, in part, that the governing
body of each municipality make appropriations for each fiscal
year which, in anyone year, shall not exceed the amount to be
recei ved from taxation or other revenue sources; and subj ect
further, to the payment of services and programs which are for
essential public purposes affecting the health, welfare and
safety of the inhabitants of the City or which are legally
mandated by applicable law.
The term "Non-Ad Valorem Funds" shall mean all revenues of
the City derived from any source other than ad valorem taxation
on real or personal property, which are legally available to make
the payments required herein, but only after provision has been
made by the City for the payment of all essential or legally
mandated services.
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The term "Rent" or "rent" as used in this Lease shall mean
Base Rent, Additional Rent (as hereinafter defined) and all other
charges and costs due by Tenant to Landlord under this Lease.
The term "lease year" as used in this Lease shall mean a twelve
(12) consecutive month period, the first lease year commencing on
the Completion Date and subsequent lease years commencing each
anniversary thereafter.
In addition to Base Rent, Tenant shall and hereby agrees to
pay to Landlord each month a sum equal to any sales tax, tax on
rentals, and any other charges, taxes and/or impositions now In
existence or hereafter imposed based upon the privilege of
renting the space leased hereunder or upon the amount of Rent and
any other charges collected therefor; provided, however, to the
extent that Tenant is exempt under applicable law from the
obligation to pay sales tax, Tenant shall provide Landlord with
Tenant's tax exempt identification number or other appropriate
evidence of such exemption, whereupon Tenant shall not be
obligated to pay any such sales tax. Nothing herein shall,
however, be taken to require Tenant to pay any part of any
federal or state taxes on income imposed upon Landlord.
Tenant shall be required to pay Landlord interest on any
Rent due that remains unpaid for five (5) days after its due
date. Said interest will be computed from the due date at a rate
which is three (3) percentage points in excess of the "base" rate
or "prime rate" quoted from time to time by Citibank, N.A., New
York, New York or if Citibank, N.A. shall no longer provide a
publicly quoted "base" rate or "prime" rate, then the "prime
rate" published in the Wall Street Journal for money center banks
and to the extent no such rates are quoted by Citibank, N.A., or
the Wall Street Journal, then 15% per annum) provided, however,
that such interest rate shall not exceed the lawful rate, and
such interest shall be paid from the date due (beyond all
applicable notice and grace periods) until actually received by
Landlord.
5 . 1.!S.E :
(a) Tenant will use the City Unit solely for the purpose of
providing parking for automobiles (including vans and so-called
"utility vehicles" but excluding trucks and oversized vehicles
that do not fit within standard vehicular parking spaces) of
(i) persons employed in connection with the operation,
management, maintenance or repair of the Marina (as defined in
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the Development Agreement) and the Marina Lessee, (ii) occupants
or users of the Marina, including their guests or invitees and
exhibitors in and visitors to any boat shows that may be held at
the Marina from time to time, (iii) the public generally (all
such users being herein referred to as "Permitted Users"), and
for no other purpose; provided, however, that to the extent that
there is located within the City Unit lavatory, shower and
laundry room facilities, the use of such facilities solely by
occupants or users of the Marina shall be a permitted use
hereunder and the users of such facilities shall be included
within the definition of Permitted Users. Tenant will be
entitled to sublease the City Parking Spaces to the Permitted
Users at such rates as are set by Tenant in its sole discretion,
and on other terms and conditions established by Tenant in its
sole discretion, provided that such terms and conditions are not
inconsistent with the terms of this Lease (the Permitted Users
subleasing from or otherwise granted a right to use such City
Parking Spaces by Tenant are herein collectively referred to as
the "Licensees").
(b) Tenant will not use or permit the use of the City Unit
for any purpose other than as set forth in Paragraph 5(a) hereof.
Tenant shall not use or occupy or suffer or permit the use or
occupancy of any part of the City Unit in any manner which would
adversely affect (i) the use and enj oyment of any part of the
Parking Garage by any other user thereof or (ii) the appearance,
character or reputation of the Parking Garage as part of a first-
class development.
(c) Tenant shall assist and cooperate with Landlord with
respect to the use by the Licensees of the Parking Garage.
Tenant agrees to cooperate with Landlord and to take, and to
cause the Licensees to take, such actions as may from time to
time be reasonably required by Landlord to permit or assist
Landlord in so controlling the use and/or manner of use of the
Parking Garage, or the City Unit and identifying the Licensees,
including, without being limited to, the installation and
monitoring of such control and security systems or mechanisms as
Landlord shall reasonably specify from time to time.
6. OPERATIONAL STANDARDS:
(a) Subj ect to
in accordance with
reasonably determine
subparagraph (b) below, the parties shall,
the Standard (as hereinafter defined),
initial systems of ingress and egress, and
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minimum standards for security (but which in any event shall
require 24 hour security), traffic movement within the Parking
Garage, maintenance and repair of the City Unit (but which in any
event shall require that the City Unit be maintained and repaired
in a first class, clean manner) and similar operational,
maintenance and repair matters (which operational, maintenance
and repair matters are herein individually and collectively
referred to as "Operational Standards"); provided, however, that
the Operational Standards shall at all times be at least
comparable to those in other indoor parking garages located in
the area known as the South Shore of Miami Beach comparable to
the Parking Garage or then represent customary standards of
operation of comparable garages or parking lots, as applicable
(the "Standard"). As of the date hereof, the parties have not
determined the specific Operational Standards for the Parking
Garage. The parties acknowledge and agree that the City Unit is
intended to and shall be operated, maintained and repaired in a
first class manner and otherwise consistent with the standard of
development on the property of Landlord immediately adjacent to
the Parking Garage. Landlord shall propose initial Operating
Standards at least forty-five (45) days prior to the Commencement
Date. Any such Operating Standards shall take into account the
reasonable needs of the Marina (as defined in the Development
Agreement) and otherwise be consistent with the requirements of
the Parking Agreement. Landlord shall deliver the initial
proposed Operational Standards to Tenant. Tenant shall have
thirty (30) days to reasonably review and approve the proposed
Operating Standards in writing. In the event Tenant disapproves
the proposed Operating Standards, Tenant shall provide Landlord
with specific written reasons therefor within said thirty (30)
day period. In the event Tenant fails to respond to Landlord in
writing within said thirty (30) day period, the proposed
Operating Standards shall be deemed approved. Any dispute as to
Operational Standards which the parties are unable to resolve
within the forty-five (45) day period prior to Closing shall,
pursuant to paragraph 9.7 of the Development Agreement, be
submitted for resolution to the Circuit Court of the 11th
Judicial Circuit, Dade County, Florida.
(b) Landlord shall not have any affirmative obligation to
provide any security at the Parking Garage. It is acknowledged
and agreed, however, that if Landlord elects to provide or
attempts to provide security to the Parking Garage or the
buildings in which the City Unit is located in general, Landlord
cannot and does not hereby or thereby guarantee the safety of any
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person, including, without limitation, licensees or invitees of
Tenant, the Marina Lessee, the Licensees or any other user of the
City Unit or the Parking Garage, or the protection of automobiles
parked in the Parking Garage (or other property left in such
automobiles), and that Landlord shall, notwithstanding anything
to the contrary set forth herein, have no liability or obligation
wi th respect thereto. Tenant shall provide 24 hour per day,
every day security, including, without being limited to, measures
to insure the security of lavatories, showers and laundry rooms
located within the City Unit, and shall install appropriate
security devices with respect to the City Unit, adopt measures or
install devices to control the use, manner of use, access,
traffic movement or assignment of parking spaces with respect to
the portion of the Parking Garage within which the City Unit is
located and erect barriers to the extent necessary to physically
separate the City Unit from the parking spaces in the remainder
of the Parking Garage. All of the foregoing shall be installed,
monitored, operated and maintained in a manner consistent with
the Standard and subject to such Rules and Regulations (as
defined in Paragraph 8 hereof). In the event Landlord elects to
institute security measures for the overall Parking Garage or the
building in which the Parking Garage is located in general, then
Tenant shall cooperate fully with Landlord in instituting and
maintaining such security measures and coordinating such measures
with the security Tenant is obligated to provide within the City
Unit pursuant hereto. Tenant shall pay its proportionate share
of the costs and expenses incurred in connection with such
security measures to the extent such measures instituted by
Landlord benefit the City Unit; provided, however, that to the
extent that the nature and use of the City Unit reasonably
require security measures in excess of those provided in other
areas of the Parking Garage and Landlord incurs additional costs
and expenses in respect thereof, Tenant shall pay the total cost
of such additional security measures to Landlord within ten (10)
days after demand therefor.
7. PARKING PRIVILEGES:
(a) The Licensees parking in the City Unit shall have so-
called self -park "in-and-out " privileges, meaning that, subj ect
to Excusable Delays (as defined in Paragraph 20(a) hereof),
Tenant, the Marina Lessee and the Licensees shall have unlimited
rights of ingress and egress to and from the City Unit for
parking automobiles and for use of the lavatories, showers and
laundry rooms contained within the City Unit 24 hours a day,
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seven days a week, from the entrance to the Parking Garage
designated by Landlord for such purpose, without any charge or
fee being due or payable by such parties to the Landlord, other
than the Maintenance Costs (as defined in Paragraph 10 hereof).
Landlord shall provide and maintain (or cause to be provided and
maintained) personnel and related facilities suitable in
Landlord's reasonable judgment for the proper care and management
of the Parking Garage (excluding the City Unit), and Landlord
shall have no responsibility to Tenant to provide personnel to
park any automobiles, it being acknowledged and agreed that
Tenant and the Licensees shall park their own automobiles. Entry
to the Parking Garage by Tenant and the Licensees shall be in
accordance with the Rules and Regulations. Landlord shall have
no liability or responsibility to Tenant in the event the City
Unit is used by parties other than Tenant or the Licensees at any
time and from time to time and Tenant shall have no liability or
responsibility to Landlord in the event the Private Parking
Spaces are used by parties other than Landlord. To the extent
feasible, the City Unit shall have its own separate entrance
which shall be under the control of the Tenant and Tenant shall
be entitled (at Tenant's expense) to install appropriate signage
(consistent with the design of the improvements on the Property
and aesthetically approved by the Landlord) .
(b) Tenant shall take all steps necessary to insure that
the City Unit is maintained in a manner consistent with that of a
first-class parking garage, including, without being limited to,
providing cleaning, repair and other maintenance services for the
City Unit and any lavatory, shower or laundry room facilities
located therein.
(c) Landlord shall have the right to take whatever measures
it may deem necessary to maintain the Parking Garage as two
separate, physically distinct parcels, including, without lim-
itation, adoption of security measures or installation of
security devices, installation of devices to control the use,
manner of use, access, traffic movement or assignment of parking
spaces, installation of barriers and establishment of separate
means of ingress and egress, all for the benefit of users of the
Private Unit. The exercise of such right shall not be deemed a
violation of Landlord's obligations to Tenant hereunder.
8. RULES AND REGULATIONS: Tenant shall establish and
publish reasonable rules and regulations for the day-to-day
operation and function of the City Unit that are consistent with
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the Operational Standards (the "Rules and Regulations"), and the
Tenant shall at all times during the term of this Lease, cause
the Licensees to comply with the Rules and Regulations.
9. MAINTENANCE AND REPAIR COSTS:
(a) At Landlord's option, but in any event within no more
than one (1) year following the Completion Date of the City Unit,
Landlord shall turn over all maintenance and repair obligations
for the City Unit to Tenant, which shall be maintained and
repaired in a first class manner and consistent with Landlord's
maintenance of the Private Unit and the Operational Standards, by
the Tenant at the Tenant's expense. Prior to turn over, Tenant
shall reimburse Landlord from time to time on a monthly basis all
out -of -pocket expenses incurred by Landlord in maintaining or
repairing the City Unit (other than the expense of correcting the
punch list items and any latent defects in construction) .
(b) Tenant shall pay to the appropriate taxing authorities
any and all taxes, assessments and charges of every description
levied upon Tenant and/or the Licensees' occupation of the City
Unit or Tenant's payment of Maintenance Costs (as hereinafter
defined) pursuant to this Lease; provided, however, to the extent
that Tenant is exempt under applicable law from the obligation to
pay sales tax, Tenant shall provide Landlord with Tenant's tax
exempt identification number or other appropriate evidence of
such exemption, whereupon Tenant shall not be obligated to pay
any such sales tax.
(c) Any repairs or replacements of a structural nature or
otherwise impacting portions of the Parking Garage (or building
in which the Parking Garage is situated) other than just the City
Unit, shall be undertaken by Landlord, and the costs thereof
equitably apportioned based upon the nature and scope of the
repair work. Any dispute as to the apportionment of such repair
work that cannot be resolved within thirty (30) days shall
pursuant to paragraph 9.7 of the Development Agreement be
submitted for resolution to the Circuit Court of the 11th
Judicial Circuit, Dade County, Florida. Landlord shall also be
entitled to make any emergency repairs (not being undertaken by
Tenant) as necessary and be equitably reimbursed for same
pursuant to the foregoing.
10. ADDITIONAL RENT:
shall, during each lease
In addition to the Base Rent, Tenant
year, pay to Landlord as "Additional
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Rent", "Tenant I s proportionate share" of "Operating Expenses",
"Taxes" and "Insurance". As used herein the term:
"Tenant I S proportionate share" shall mean the percentage
which the Rentable Area leased by the Tenant in the Parking
Garage bears to the total Rentable Area contained in the Parking
Garage, which share is hereby agreed to be 19.368%.
"Rentable Area" means all interior floor area exclusive of
columns and shafts.
"Operating Expenses" shall mean all expenses, costs and
disbursements, of every kind and nature, which Landlord shall pay
or become obligated to pay in connection with the maintenance,
repair, replacement, management, operation, regulation and
insuring of the common areas of or relating to the Parking Garage
(including any associated landscaped areas), including, without
limitation, any sums incurred by Landlord for maintenance,
alterations, additions and/or repairs pursuant to paragraph 9
above or paragraph 11 below, all fees, assessments and expenses
incurred in connection therewith, as well as all costs associated
with the maintenance and repair of the drop-off areas, all
computed on the accrual basis, but shall not include "Taxes" (as
hereinafter defined), the cost of mortgage financing, individual
tenant improvements, commissions, fees paid in connection with
Landlord's leasing activities or services or other benefits
provided to the users of the Parking Garage which are not
provided to the users of the City Unit. By way of explanation
and clarification, but not by way of limitation, Operating
Expenses will include the following: wages, salaries and benefits
of all employees engaged in the operation and maintenance of the
Parking Garage; cost of all supplies and materials used in the
operation and management of the Parking Garage; cost of all
utilities used by the Parking Garage and not charged directly to
another tenant; and cost of Parking Garage management, janitorial
services, accounting and legal services, trash and garbage
removal and servicing and maintenance of all Parking Garage
systems and equipment. Operating Expenses are intended to be
"net" charges only, and for that purpose shall be deemed reduced
by the amounts of any insurance reimbursement, other
reimbursement, payment, discount, credit, reduction, allowance or
the like, received by Landlord in connection with such Operating
Expenses and if and to the extent the Tenant is self-maintaining,
repairing and operating the City Unit, and directly paying the
costs for same, then Tenant shall not be charged a proportionate
13
share of those expenses being self-performed and directly paid
for by the Tenant.
"Taxes" shall mean all impositions, taxes, assessments
(special or otherwise), and other governmental liens or charges
of any and every kind, nature and sort whatsoever, ordinary and
extraordinary, foreseen and unforeseen, and substitutes therefor
(except only income taxes) attributable in any manner to the
Parking Garage, associated parking areas and/or the land on which
the same are located or any part thereof, or any use thereof, or
any equipment, fixtures or other facility located therein or
thereon or used in conjunction therewith provided that, if and to
the extent the City Unit is not taxed, then Tenant shall not be
charged a proportionate share of the Taxes.
"Insurance" shall mean the cost to Landlord of all casualty
(including all extended coverages), liability, flood hazard, and
other insurance maintained by Landlord (in Landlord's sole
discretion) and applicable to the Parking Garage, associated
parking areas, the land adjacent and/or upon which the same are
located and/or Landlord's personal property used in connection
therewith.
Landlord shall notify Tenant within a reasonable time after
the date hereof and wi thin a reasonable time after the end of
each calendar year hereafter ensuing during the Term hereof, of
the amount which Landlord estimates (as evidenced by budgets
prepared by or on behalf of Landlord) will be the amount of
Tenant's proportionate share of Operating Expenses, Taxes and
Insurance for the then current calendar year and Tenant shall pay
such sum in advance to Landlord in equal monthly installments,
during the balance of said calendar year, on the first day of
each remaining month in said calendar year commencing on the
first day of the first month following Tenant's receipt of such
notification. Within sixty (60) days following the end of each
calendar year during the Term, Landlord shall submit to Tenant a
statement showing the actual amount which should have been paid
by Tenant with respect to Operating Expenses, Taxes and Insurance
for the past calendar year, the amount thereof actually paid
during that year by Tenant and the amount of the resulting
balance due thereon, or overpayment thereof, as the case may be.
Within thirty (30) days after receipt by Tenant of said
statement, Tenant shall have the right in person to inspect Land-
lord's books and records as pertains to said Operating Expenses,
Taxes and Insurance, at Landlord's office, during normal business
14
hours, after reasonable prior notice. The statement shall become
final and conclusive between the parties unless Landlord receives
written detailed objections with respect thereto within said
thirty (30) day period. Any balance shown to be due pursuant to
said statement shall be paid by Tenant to Landlord within thirty
(30) days following Tenant's receipt thereof and any overpayment
shall be immediately credited against Tenant's obligation to pay
expected Additional Rent in connection with anticipated Operating
Expenses, Taxes and Insurance for the next year, or, if by reason
of any termination of this Lease no such future obligation
exists, refunded to Tenant. Anything herein to the contrary
notwithstanding, Tenant shall not delay or withhold payment of
any balance shown to be due pursuant to a statement rendered by
Landlord to Tenant because of any objection which Tenant may
raise with respect thereto and Landlord shall immediately credit
or refund any overpayment found to be owing to Tenant as
aforesaid upon the resolution of said objection.
Addi tional Rent due by reason of this paragraph for the
final months of this Lease is due and payable even though it may
not be calculated until subsequent to the termination date of the
Lease; and shall be prorated according to that portion of said
calendar year that this Lease was actually in effect.
Additionally, Tenant shall be responsible for and shall pay
before delinquency all municipal, county or state taxes assessed
during the Term of this Lease against any occupancy interest or
personal property of any kind, owned by or placed in, upon or
about the City Unit by the Tenant.
All amounts payable by Tenant pursuant to this Paragraph 10,
and any other sums payable by Tenant pursuant to this Lease,
shall be deemed maintenance costs (the !'Maintenance Costs"), and,
if not paid when due, shall, to the extent lawful, be deemed
liens upon the City Unit prior in all respects to all other liens
then or thereafter placed thereon and, without limiting any other
rights or remedies available to Landlord in respect thereof, may
be foreclosed by Landlord in the same manner as mortgage liens
may be foreclosed thereon.
15
11. CHANGE IN FACILITIES:
(a) Landlord reserves the right, at any time, without
incurring any liability to Tenant therefor, to make such changes
in or to the City Unit, the Parking Garage (including, without
being limited to, reducing the size of the Parking Garage) and
any structures appurtenant thereto, as well as in the entrances,
doors, corridors, elevators, stairs, landings, if any, and other
public parts of same, as Landlord may deem necessary or
desirable, provided any such change to the City Unit or the
Parking Garage (but not of any structures appurtenant to the
Parking Garage exclusive of the Parking Garage) (i) does not
deprive Tenant of access to the City Unit, (ii) does not
interfere with the use of any portions of the City Unit for an
unreasonable length of time under the circumstances then
prevailing, (iii) does not reduce the number of City Parking
Spaces in the City Unit, and (iv) meets all of the other criteria
for design, review and approval otherwise required for a change
in the Plans and Specifications as set forth in paragraph 6 of
the Parking Agreement.
(b) Tenant shall permit Landlord
maintain pipes, ducts, wires and conduits
City Unit, or through the walls, columns
the floors therein, provided that the
performed at such times and by such
unreasonably interfere with Tenant's use
City Unit or damage the appearance thereof.
to install, use and
within or through the
and ceilings or under
installation work is
methods as will not
and occupancy of the
(c) All parts of all walls, doors or barriers bounding the
City Unit, all stairs, landings and roofs adjacent to the City
Unit, all space in or adjacent to the City Unit used for shafts,
stacks, stairways, conduits, air conditioning rooms, fan rooms,
heating, ventilating, air conditioning, plumbing, electrical and
other mechanical facilities, service closets and other equipment
serving the Parking Garage or other parts of the building in
which the Parking Garage is located, and the use thereof, as well
as access thereto through the City Unit for the purposes of
operation, decoration, cleaning, maintenance, safety, security,
alteration and repair, are hereby reserved to Landlord. Landlord
reserves the right, at any time, to make such changes in or to
the Parking Garage and the equipment, including the entrances,
doors, corridors, elevators, stairs I landings and other public
parts of the equipment serving the Parking Garage, as it may deem
necessary or desirable, provided any such change (i) shall not
16
deprive Tenant of access to the City Unit, (ii) shall not
materially interfere with the use of any portions of the City
Unit for an unreasonable length of time, and (iii) shall be made
in the manner as necessary to meet all of the criteria for
design, review and approval otherwise required for a change in
the Plans and Specifications as set forth in paragraph 6 of the
Parking Agreement. Tenant shall make no material alterations to
the City Unit without the consent of the Landlord. All
additions, fixtures, carpet or improvements, except only office
furniture and fixtures which shall be readily removable without
injury to the City Unit, shall be and remain a part of the City
Unit at the expiration of this Lease.
(d) Landlord shall have the right to enter the City Unit at
all reasonable times upon reasonable notice to Tenant (except in
an emergency in which case no notice shall be required) for any
of the purposes specified in this Paragraph 11 and (i) to examine
the City Unit or to perform any obligation of Landlord or to
exercise any right reserved to Landlord in this Lease; (ii) to
inspect any improvements in the City Unit or the making thereof;
(iii) to exhibit the City Unit to others; (iv) to make repairs,
including repairs of damage resulting from fire or other casualty
or eminent domain, or improvements, or to perform such
maintenance, including the maintenance of equipment serving the
Parking Garage, as Landlord may deem necessary or desirable; and
(v) to take into and store upon portions of the City Unit any
materials that may be reasonably required for repairs,
improvements or maintenance to the City Unit. Any holder of a
mortgage or any ground lessor under any ground or underlying
lease to which this Lease is subject and subordinate shall have
the right to enter the City Unit at all reasonable times to
examine the City Unit or exercise any right reserved to Landlord
under this Paragraph 11.
(e) Landlord or Landlord's agents shall have the right to
permit access to the City Unit at any time, whether or not Tenant
shall be present, to any receiver, trustee, marshal or other
person entitled to, or reasonably purporting to be entitled to,
such access for the purpose of taking possession of or removing
any of Tenant's property or property of any other occupant of the
City Unit, or for any other lawful purpose, or by any
representative of the fire, police, building, sanitation or other
department or instrumentality of the borough, city, state or
federal governments. Nothing contained in, and no action taken
by Landlord under, this Paragraph 11 shall be deemed to
17
constitute recognition by Landlord that any person other than
Tenant has any right or interest in this Lease or the City Unit.
(f) The exercise of any right reserved to Landlord in this
Paragraph 11 shall be without liability of Landlord to Tenant.
12. PARKING GARAGE NAME: The Parking Garage may be
designated and known by any name or address Landlord may choose
and such designated name or address may be changed from time to
time in Landlord's sole discretion provided that, to the extent
feasible, the City Unit shall have its own separate entrance
which shall be under the control of the Tenant and Tenant shall
be entitled (at Tenant's expense) to install appropriate signage
(consistent with the design of the improvements on the Property
and aesthetically approved by the Landlord). Tenant agrees not
to refer to the Parking Garage by any name or address other than
as designated by Landlord.
13. OUIET ENJOYMENT: Upon payment by Tenant of the Rents
herein provided, and upon the observance and performance of all
terms and provisions on Tenant's part to be observed and per-
formed, neither Landlord nor anyone claiming by, through or under
Landlord shall interfere, subject to all of the terms and
provisions of this Lease and Acts of God, with Tenant's peaceful
and quiet enj oyment of the City Unit during the Term hereby
demised.
14. GOVERNMENTAL AND OTHER REOUIREMENTS: Tenant shall
faithfully observe in the use of the City Unit all municipal and
county ordinances and codes and all state and federal laws,
statutes, rules and regulations now in force or which may
hereafter be in force. Without limiting the generality of the
foregoing, Tenant covenants and represents to Landlord that
Tenant will not use, generate, manufacture, produce, store,
release, discharge or dispose of, on, under or about the City
Unit or transport to or from the City Unit any "Hazardous
Materials" (as hereinafter defined). For purposes of this Lease,
the term "Hazardous Materials" shall mean any hazardous and/or
toxic substances or related materials, including petroleum
products, and any other substances or materials or waste which
are designated as hazardous by any federal, state or local
environmental laws, statutes, regulations or ordinances presently
or hereinafter in effect, as amended.
18
15. SERVICES: Landlord agrees that, to the extent
possible, all utilities serving the City Unit shall be provided
through systems which are separate from the remainder of the
Parking Garage and any structures appurtenant thereto. To the
extent such utilities are separately metered, Tenant shall pay
the cost of all such utilities directly to the authority or
utility providing the same. The cost of repair and maintenance
of all utility systems serving the City Unit shall be the sole
responsibility of Tenant. Tenant shall be solely responsible for
payment, and shall promptly pay, all charges for telephone and
other utilities or services with respect to the City Unit.
No electric current shall be used in the City Unit except
that furnished or approved by Landlord, nor shall electric cable
or wire be brought into the City Unit except upon the written
consent and approval of the Landlord. Tenant shall use only
office machines and equipment that operate on the Parking
Garage's standard electric circuits, but which in no event shall
overload the Parking Garage's standard electric circuits from
which the Tenant obtains electric current. If not separately
metered and paid by Tenant, any consumption of electric current
by Tenant in excess of that considered by Landlord to be usual,
normal and customary by all tenants shall be paid for by Tenant
as Additional Rent in an amount to be determined by Landlord
based upon Landlord's estimated cost of such excess electric
current consumption or based upon the actual cost thereof if such
consumption is separately metered.
Tenant agrees to cooperate fully, at all times, with Land-
lord in abiding by all reasonable regulations and requirements
which Landlord may prescribe for the proper functioning and pro-
tection of all utili ties and services reasonably necessary for
the operation of the Parking Garage and the City Unit. Landlord,
throughout the Term, shall have free access to any and all mech-
anical installations in the City Unit, and Tenant agrees that
there shall be no construction of partitions or other obstruc-
tions which might interfere with the moving of the servicing
equipment of Landlord to or from the enclosures containing such
installations. Tenant further agrees that neither Tenant nor its
employees, agents, invi tees, licensees or contractors shall at
any time tamper with, adjust or otherwise in any manner affect
Landlord's mechanical installations.
16. MECHANICS LIENS: Tenant shall keep the City Unit and
all parts thereof at all times free of mechanic's liens and any
19
other lien for labor, services, supplies, equipment or material
purchased or procured, directly or indirectly, by or for
Tenant. Tenant further agrees that Tenant will, within thirty
(30) days of receipt of written notice of any lien caused or
created by Tenant, pay and satisfy or transfer to bond pursuant
to Florida Statutes all 1 iens of contractors, subcontractors,
mechanics, laborers, materialmen and other items of like
character and will indemnify Landlord against all expenses, costs
and charges including bond premiums, release of liens and
attorneys fees and costs reasonably incurred in connection with
the defense of any sui t in discharging the Ci ty Unit, or the
Parking Garage, or any part thereof from any liens, judgments,
encumbrances caused or created by Tenant. In the event any such
lien shall be made or filed, Tenant shall bond against or
discharge the same wi thin thirty (30) days after the same has
been made or filed. It is understood and agreed between the
parties hereto that the expenses, costs and charges above
referred to shall be considered as rent due and shall be included
in any lien for rent.
Tenant shall not have any authority to create any liens for
labor or material on the Landlord's interest in the City Unit and
all persons contracting with the Tenant for the construction or
removal of any facilities or other improvements on or about the
City Unit, and all materialmen, contractors, mechanics, and
laborers are hereby charged with notice that they must look only
to the Tenant and to the Tenant's interests in the City Unit to
secure the payment of any bill for work done or material
furnished at the request or instruction of Tenant.
Tenant shall notify any contractor making any improvement to
the City Unit of this provision in the Lease. In accordance with
Florida Statutes ~ 713.10, Landlord shall have the right to post
on the City Unit and to file and/or record in the Public Records
of Dade County, Florida or court registry, as applicable, a
notice stating that the interest of Landlord shall not be subject
to liens for improvements made by the Tenant at the City Unit and
such other notices as Landlord may reasonably deem proper for the
protection of Landlord's interest in the City Unit.
20
17. LIABILITY AND INDEMNITY:
(a) Neither Landlord nor Landlord's agents, officers,
directors, shareholders, partners or principals (disclosed or
undisclosed) shall be liable to Tenant, or anyone claiming by,
through or under Tenant, including, without being limited to, the
Licensees, or their respective agents, employees, contractors,
invi tees or licensees, for any loss, cost, liability, claim,
damage, expense, penalty or fine incurred in connection with or
arising from any injury or death of any person or for any damage
to, or loss (by theft or otherwise) of, any of the property of
any person, irrespective of the cause of such injury, damage or
loss (including the acts or negligence of any other user of or
person present at the Parking Garage or of any owners or
occupants of adjacent or neighboring property or caused by
operations in construction of any private, public or quasi-public
work) unless due to the negligence or misconduct of Landlord or
Landlord's agents, servants or employees.
(b) Neither any (i) performance by Landlord or others of
any repairs, improvements, alterations, additions, installations,
substitutions, betterments or decorations in or to the Parking
Garage or the Property, (ii) failure of Landlord or others to
make any such repairs, improvements, alterations, additions,
installations, substitutions, betterments or decorations,
(iii) damage to the Parking Garage or the Property, (iv) injury
to any persons, caused by other users of or persons at the
Parking Garage or the Property, or by operations in the
construction of any private, public or quasi-public work, or by
any other cause, (v) latent defects in the Parking Garage, nor
(vi) inconvenience or annoyance to Tenant or anyone claiming by,
through or under Tenant or inj ury to or interruption of the
business of any of the foregoing by reason of any of the events
or occurrences referred to in the foregoing subdivisions (i)
through (vi), shall impose any liability on Landlord, other than
such liability as may be imposed upon Landlord by law for
Landlord's negligence or the negligence of Landlord's agents,
servants or employees or for the breach by Landlord of any
express covenant of this Lease on Landlord's part to be
performed. No representation, guaranty or warranty is made or
assurance given that any communications or security systems,
devices or procedures of the Parking Garage, if any, will be
effecti ve to prevent inj ury to Tenant or any other person or
damage to, or loss (by theft or otherwise) of, the property of
any person, and Landlord reserves the right to discontinue or
21
modify at
procedures
through or
any time such communications
without liability to Tenant
under Tenant.
or
or
securi ty systems or
anyone claiming by,
(c) To the fullest extent permitted by applicable law,
Tenant agrees to indemnify, defend and save Landlord harmless of
and from all loss, cost, liability, damage and expense including,
without being limited to, reasonable attorneys' fees and court
costs, penalties and fines incurred in connection with or arising
from (i) any default by Tenant or anyone claiming by, through or
under Tenant, including, without being limited to, the Licensees,
in the observance or performance of any of the terms, covenants
or conditions of this Lease on Tenant's or the Licensees' part to
be observed or performed, or (ii) the manner of use or occupancy
(as opposed to mere use or occupancy) of the Parking Garage by
Tenant or any person claiming by, through or under Tenant,
including, without being limited to, the Licensees, or (iii) any
acts, omissions or negligence of Tenant or any such person, or
the contractors, agents, servants, employees, visitors or
licensees of Tenant or any such person, in or about the Property
or the Parking Garage; provided, however, that in no event shall
Tenant be obligated under clause (ii) and/or (iii) above in
respect of third party claims for amounts in excess of the
greater of (1) the insurance coverage carried by Tenant covering
such matters or (2) those limits to waiver of sovereign immunity
provided for under Florida Statute ~ 768.28 (or any successor
statute thereto). If any action or proceeding shall be brought
against Landlord or Landlord's agents, servants or employees
based upon any such claim and if Tenant, upon notice from
Landlord, shall cause such action or proceeding to be defended at
Tenant's expense by counsel acting for Tenant's insurance
carriers in connection with such defense or by other counsel
reasonably satisfactory to Landlord, without any disclaimer of
liability by Tenant in connection with such claim, Tenant shall
not be required to indemnify Landlord or Landlord's agents,
servants or employees for counsel fees in connection with such
action or proceeding.
(d) If Tenant shall default in the observance or
performance of any term, covenant or condition of this Lease on
Tenant's part to be observed or performed beyond any applicable
grace period set forth herein, Landlord shall have all rights
permitted hereunder and at law or equity.
22
18. INSURANCE:
(a) Tenant shall not do or suffer or permit anything to be
done in or in connection with the City Unit or the Parking Garage
which would (i) subject Landlord to any liability for injury to
any person or property by reason of any such activity being
conducted in or in connection with the City Unit or by Tenant or
those claiming by, through or under Tenant, (ii) cause any
increase in the rates for the fire and other types of insurance
applicable to the Parking Garage or any structure appurtenant
thereto, or (iii) result in the cancellation or the assertion of
any defense by the insurer to any claim under any policy of
insurance maintained by or for the benefit of Landlord with
respect to the Parking Garage or any structures appurtenant
thereto.
(b) Tenant shall be responsible to pay as part of
Additional Rent, its proportionate share (equitably allocated) of
any fire, windstorm, flood and extended casualty policies if
insurance is maintained for the benefit of the building as a
whole.
(c) Tenant shall give notice to Landlord, promptly after
Tenant learns thereof, of any accident, emergency or occurrence
for which Landlord might be liable, fire or other casualty and
all damages to or defects in the City Unit, the Parking Garage or
any structures appurtenant thereto. Such notice shall be given
by facsimile or personal delivery to the address of Landlord then
in effect for notices.
19. SUBORDINATION AND NON-DISTURBANCE:
(a) This Lease and all rights of Tenant under this Lease
shall be and remain subj ect and subordinate in all respects to
all mortgages which may, from time to time, hereafter affect the
Property, the Parking Garage or any structures appurtenant
thereto, and to all advances to be made under such Landlord's
mortgages, and to all renewals, modifications, consolidations,
correlations, replacements and extensions of, and substitutions
for, any such mortgages provided that (i) the applicable
mortgagee shall execute and deliver an agreement to Tenant
substantially to the effect that, in the event of any foreclosure
of such mortgage, such holder or holders will not make Tenant a
party defendant to such foreclosure unless required to do so by
law in order to make such proceeding effective, nor, whether or
23
not so joined, disturb its possession under this Lease so long as
there shall be no default by Tenant of its obligations hereunder
(any such agreement or any agreement of similar import is
referred to as a "Non-Disturbance Agreement") or (ii) such
Landlord's mortgage shall contain provisions substantially to the
same effect as those contained in a Non-Disturbance Agreement
(any such provisions are referred to in this Lease as
"Non-Disturbance Provisions")
(b) This Lease and all rights of Tenant under this Lease
shall be and remain subj ect and subordinate in all respects to
all future ground or underlying leases of the Property, the
Parking Garage or any structure appurtenant thereto and to all
renewals, modifications, replacements and extensions of, and
substitutions for, such ground or underlying leases, provided
that (i) the applicable ground or underlying lease shall contain
provisions or (ii) the lessor under any such ground or underlying
lease shall execute and deliver to Tenant an agreement, in either
case substantially to the effect that, in the event of the
termination of such ground or underlying lease by reason of the
default or insolvency of the lessee thereunder (or by reason of
any other cause, provided such other cause would not result in
the termination of this Lease absent such ground or underlying
lease), such lessor will permit Tenant to attorn to such lessor
and will not disturb its possession under this Lease so long as
there shall be no default by Tenant of its obligations hereunder,
with the effect that this Lease shall constitute a direct
agreement between such lessor and Tenant (any such provisions or
agreement, or any provisions or agreement of similar import are
referred to in this Lease as "Tenant Recognition Provisions" or
as a "Tenant Recognition Agreement") .
(c) If, at any time prior to the expiration of the term of
this Lease, any ground or underlying lease under which Landlord
shall then be the lessee shall expire or be terminated for any
reason, Tenant agrees at the election and upon demand of any
owner of the Property, the Parking Garage or any structures
appurtenant thereto, or if the holder of mortgages in possession
of the same, or of any lessee under any other ground or
underlying lease covering premises which include the City Unit,
to attorn, from time to time, to any such owner, holder or lessee
upon the then executory term and conditions of this Lease, for
the remainder of the term of this Lease, provided that such
owner, holder or lessee, as the case may be, shall then be
entitled to receive Maintenance Costs (as defined herein). The
24
foregoing provisions of this Paragraph 19(c) shall inure to the
benefit of any such owner, holder or lessee, shall apply
notwithstanding that as a matter of law, this Lease may terminate
upon the expiration or termination of any such ground or
underlying lease, shall be self-operative upon any such demand,
and no further instrument shall be required to give effect to
said provisions. Tenant, however, upon demand of any such owner,
holder or lessee, agrees to execute from time to time,
instruments in confirmation of the foregoing provisions of this
Paragraph 19(c), satisfactory to any such owner, holder or
lessee acknowledging such attornment and setting forth the terms
and conditions of its use and occupancy of the City Unit.
Nothing contained in this Paragraph 19(c) shall be construed
to impair any right otherwise exercisable by any such owner,
holder or lessee.
(d) The subordination provisions of this Paragraph 19
shall be self-operative and no further instrument of
subordination shall be required. In confirmation of such
subordination, Tenant shall execute and deliver promptly any
certificate or other instrument evidencing such subordination
which Landlord, or any lessor under any ground or underlying
lease, or any holder of any mortgage to which this Lease is
subordinate, may reasonably request.
(e) Nothing contained in this Paragraph 19 or in any
Non-Disturbance Provision, Non-Disturbance Agreement, Tenant
Recognition provision or Tenant Recognition Agreement shall,
however, affect the prior rights of the holder of any existing or
future mortgage or of the lessor under any future ground or
underlying lease with respect to the proceeds of any award in
condemnation or of any insurance policies affecting the Property,
Parking Garage or any structure appurtenant thereto, or impose
upon any such holder or lessor any liability (i) in the event of
damage or destruction to the Parking Garage or the City Unit for
any repairs, replacements, rebuilding or restoration except as
can reasonably be accomplished from the net proceeds of insurance
actually received by or made available to, such holder or lessor
in respect of such damage or destruction to the extent any such
existing or future mortgage or ground or underlying lease
provides that such net proceeds are to be made available for such
repairs, replacements, rebuilding or restoration, or (ii) for any
default by Landlord under this Lease occurring prior to any date
upon which such holder or lessor shall become Tenant's landlord
or (iii) for any credits, offsets or claims against Maintenance
25
Costs under this Lease as the result of any acts of any prior
Landlord, and any such provision or Agreement may so state. Any
such Provision or Agreement may also be conditioned upon the
existence of anyone or more of the following circumstances at
the time of the commencement of any foreclosure of any such
mortgage or at the time of the termination of any such ground or
underlying lease, as the case may be:
(1) This Lease shall be in full force and effect;
(2) Tenant shall not be in default in the observance or
performance of any of the covenants of this Lease on
the part of Tenant to be observed or performed beyond
any applicable grace period provided in this Lease for
the curing of any default;
(3) Tenant shall have agreed that, notwithstanding that
Tenant may have paid for Maintenance Costs in advance
beyond the then current payment period, Tenant shall
not be entitled to any credit for such payment against
the holder of any such mortgage after foreclosure or
against the lessor under such ground or underlying
lease after termination, as the case may be and no such
Maintenance Costs payment shall be binding upon such
holder or lessor;
(4 )
There shall be no offsets then accrued against
Maintenance Costs chargeable against the holder
such mortgage after foreclosure or against the
under any such ground or underlying lease
termination, as the case may be; and
future
of any
lessor
after
(5) Tenant shall have furnished to the then holder of any
such mortgage or the then lessor under any such ground
or underlying lease, as the case may be, a statement,
in writing, as to the status of this Lease with respect
to the above circumstances (1), (2), (3) and (4) or any
circumstances substantially similar to (2), (3) or (4),
within ten (10) days after such holder or lessor shall
have made written demand for such statement by
registered or certified mail addressed to Tenant.
(f) At the request of Landlord, Tenant shall promptly
execute and deliver any instrument or instruments requested by
Landlord for the benefit of the holder of any mortgage to which
26
this Lease shall then be subordinate or for the benefit of the
lessor under any ground or underlying lease to which this Lease
shall then be subordinate, in which Tenant shall covenant and
agree with such holder or lessor that (i) Tenant will not enter
into any agreement to cancel or modify this Lease without the
written approval of such holder or lessor and (ii) Tenant will
not take any action or institute any proceeding against Landlord
to cancel or modify this Lease by reason of the default of
Landlord without giving to such holder or lessor at least thirty
(30) days' prior written notice of such action or proceeding and
a reasonable opportunity for such holder or lessor to cure or
cause to be cured, such default by Landlord (including such
reasonable period of time as shall be required for such lessor or
holder to obtain possession of the Parking Garage if possession
of the same shall be needed to cure such default), except that
the provisions of any such instrument shall not apply to any
modifications of this Lease contemplated in any of the provisions
of this Lease or to any right or option to cancel or modify this
Lease expressly reserved or granted to Tenant pursuant to any of
the provisions of this Lease not involving the default of
Landlord.
(g) If required by the holder of any such mortgage or by
the lessor under any such ground or underlying lease, Tenant
shall promptly join in any Non-Disturbance Agreement or Tenant
Recognition Agreement to indicate its concurrence with the
provisions thereof provided such agreement shall comply with the
provisions of this Paragraph 19.
20. DEFAULT:
(a) Landlord's Default. In the event of any default by
Landlord hereunder not caused by Excusable Delays (as hereinafter
defined), Tenant shall give Landlord and each of Landlord's
mortgagees written notice specifying such default with particu-
larity and Landlord agrees to promptly commence the curing of
such default and to cure such default wi thin thirty (30) days
after receipt of the aforesaid notice; provided, however, that if
such default cannot reasonably be cured within said thirty (30)
day period, then Landlord shall cure any such default diligently
and as quickly as reasonably practicable under the circumstances
and shall have a reasonable period of time within which to cure
such default so long as Landlord is so proceeding. If Landlord
fails to cure any default during the applicable curative period,
Tenant, at any time after the expiration of such curative period
27
(as long as such default remains uncured), shall have the right,
subject to Paragraph 24(a) hereof, to seek damages against
Landlord and/or to exercise any other remedy provided in this
Lease or available to Tenant at law or in equity. As used
herein, the term "Excusable Delay" shall mean Landlord's failure
to complete construction of the Parking Garage or to perform any
other obligation of Landlord hereunder, as applicable, by reason
of one or more of the following causes, to-wit, governmental
restrictions, regulations or ordinances, strikes, shortages of
labor or essential materials, lockouts, acts of God, war, riots
or civil commotion, fire or other casualty, negligence or the
willful misconduct of Tenant or any Licensee, failure of the
parties hereto to approve amendments of or changes to the Plans
and Specifications, or any other cause, similar or dissimilar to
the foregoing and whether or not now in the contemplation of the
parties hereto, beyond the reasonable control of Landlord, other
than the financial inability of Landlord to perform, provided
that Landlord takes reasonable steps to so minimize the effect of
any such circumstance, but such steps shall not include the
acquiescence in the demands of the other side in any labor
dispute or the payment of money or the employment of labor at
overtime or premium rates, in which event the date upon which
Landlord is so required to complete construction of the Parking
Garage (or the required time period for Landlord's performance of
any other obligation hereunder, as applicable) shall be extended
for a period equal to the length of the delay caused by such
Excusable Delays. Landlord agrees to make a good faith effort to
notify Tenant of any Excusable Delays affecting the performance
by Landlord of its obligations under this Lease and the estimated
delay to result therefrom, but the failure to give such notice
shall not affect Landlord's rights under this Paragraph 20(a).
(b) Tenant's Default. In the event of any default by
Tenant hereunder, not caused by Tenant Excusable Delays (as
hereinafter defined), Landlord shall give Tenant written notice
specifying such default and Tenant agrees to promptly commence
the curing of such default and to cure such default within thirty
(30) days after receipt of the aforesaid notice; provided,
however, that if such default cannot reasonably be cured within
said thirty (30) day period, then Tenant shall cure any such
default diligently and as quickly as reasonably practicable under
the circumstances and shall have a reasonable period of time
within which to cure such default so long as Tenant is so
proceeding. If Tenant fails to cure any default during the
applicable curative period, Landlord, at any time after the
28
expiration of such curative period, shall have the right to seek
damages against Tenant and/or to exercise any other remedy
provided in this Lease or available to Landlord at law or in
equity. As used herein, the term "Tenant Excusable Delays" shall
mean Tenant's failure to perform any obligation of Tenant
hereunder by reason of one or more of the following causes, to-
wit, governmental restrictions, regulations or ordinances (other
than those restrictions, regulations or ordinances over which
Tenant, as a governmental entity, exercises control), strikes,
lockouts, acts of God, war, riots, gross negligence or the
willful misconduct of Landlord, or any other cause, similar or
dissimilar to the foregoing and whether or not now in the
contemplation of the parties hereto, beyond the reasonable
control of Tenant, other than the financial inability of Tenant,
provided that Tenant takes reasonable steps to so minimize the
effect of any such circumstance, in which event the required
period for Tenant's performance for any obligation hereunder
shall be extended for a period equal to the length of the delay
caused by such Tenant Excusable Delays. Tenant agrees to make a
good faith effort to notify Landlord of any Tenant Excusable
Delays affecting the performance by Tenant of its obligations
under this Lease and the estimated delay to result therefrom.
Notwithstanding the foregoing, any failure of Tenant to timely
pay the Purchase Price Component, shall if the same continues
more than sixty (60) days after written notice to Tenant and the
Marina Lessee (and without releasing the Tenant for all damages
caused thereby), fully excuse and release Landlord from any
obligation to deliver the City Unit hereunder (provided in such
event Landlord shall remain obligated to provide the two (2)
drive-in dropoffs together with the remaining temporary non-
parking facilities described in the Parking Agreement) .
21. ESTOPPEL CERTIFICATES: Landlord
execute and deliver to each other, at such
either party may request, a certificate in
stating:
and Tenant shall
time or times as
recordable form
(a) Whether or not this Lease is in full force or effect;
(b) Whether or not this Lease has been modified or amended
in any respect, and submit copies of such modifications
or amendments, if any.
(c) Whether or not there are any existing defaults under
this Lease to the knowledge of the party executing the
29
certificate, and specifying
defaults, if any; and
the
nature
of
such
(d) Such other information as may be reasonably requested
by such other party.
The aforesaid certificate(s) shall be delivered to Tenant or
Landlord, as the case may be, promptly upon receipt of the
written request therefor, but in no event more than ten (10) days
following receipt of such request.
22. NON-WAIVER: The failure by either party hereto to
complain of any action, non-action or default of the other party
hereto shall not constitute a waiver of any of such party's
rights hereunder. Waiver by either party hereto of any right or
any default of the other party hereto shall not constitute a
waiver of any right for either a prior or subsequent default of
the same obligation or for any prior or subsequent default of any
other obligation. No right or remedy of either party hereunder
or covenant, duty or obligation of either party hereunder shall
be deemed waived by the other party hereto unless such waiver be
in writing, signed by the other party or such other party's agent
duly authorized in writing.
23. LIEN FOR PAYMENT OF RENT: To the extent permitted by
law, Tenant hereby pledges and assigns to Landlord as security
for the payment of any and all Rent to other sums or amounts
provided for herein, all of the furniture, fixtures, equipment,
goods and chattels of Tenant which shall or may be brought or put
on or into the City Unit, and Tenant agrees that said lien may be
enforced by distress, foreclosure or otherwise, at the election
of the Landlord. Tenant hereby expressly waives and renounces
for itself and its successors and permitted assigns any and all
homestead and exemption rights it may now or hereafter acquire
under or by virtue of the constitution and laws of the State of
Florida or of any other state, or of the United States, as
against the payment of said Rent or any other obligation or
damage that may accrue under the terms of this Lease.
24. Miscellaneous.
(a) Subj ect to the other provisions of this Paragraph 24,
Landlord and Tenant may each restrain or enj oin any breach or
threatened breach of any covenant, duty or obligation of the
other party (as applicable) herein contained without the
30
necessity of proving the inadequacy of any legal remedy or
irreparable harm. Subject to the other provisions of this
Paragraph 24, the remedies of Landlord and Tenant shall be deemed
cumulative and no remedy of Landlord or Tenant whether exercised
by Tenant or Landlord or not exercised by such party shall be
deemed to be in exclusion of any other remedy unless otherwise
expressly so stated in this Lease.
(b) The term "Landlord" shall mean only the owner at the
time in question of the present Landlord's interest in the
Parking Garage (and any building of which it is a part) and in
the event of a sale or transfer of the same (by operation of law
or otherwise), or in the event of the making of a lease of all or
substantially all of the same, or in the event of a sale or
transfer (by operation of law or otherwise) of the leasehold
estate under any such lease, the grantors, transferor or lessors,
as the case may be, shall be and hereby is (to the extent of the
interest or portion of the Parking Garage or leasehold estate
sold, transferred or leased) automatically and entirely released
and discharged, from and after the date of such sale, transfer or
leasing, of all liability in respect of the performance of any of
the terms, covenants or conditions of this Lease on the part of
Landlord thereafter to be performed; provided that the purchaser,
transferee or lessee (collectively, "Transferee") shall be deemed
to have assumed and agreed to perform, subject to the limitations
of this Paragraph 24(b) and Paragraphs 24(c) and 24(d) below (and
wi thout further agreement between the then parties hereto, or
among such parties and Transferee) and only during and in respect
of Transferee's period of ownership of Landlord's interest, under
this Lease, all of the terms of this Lease on the part of
Landlord to be performed during such period of ownership, which
terms, covenants or conditions shall be deemed to "run with the
land", it being intended that Landlord's obligations hereunder
shall, as limited by this Paragraph 24 (b) and Paragraphs 24 (c)
and 24(d) below, be binding on Landlord, its successors and
assigns, only during and in respect of their respective
successive periods of ownership.
(c) No recourse shall be had on any of Landlord's
obligations hereunder or for any claim based thereon or otherwise
in respect thereof against any incorporator, subscriber to the
capital stock, shareholder, officer of director, past, present or
future, of any corporation or any partner or joint venturer which
shall be Landlord or included in the term "Landlord" or of any
successor of any such corporation, partner or joint venturer, or
31
against any principal, disclosed or undisclosed, or any affiliate
of any party which shall be Landlord or included in the term
"Landlord", whether directly or through Landlord or through any
receiver, assignee, trustee in bankruptcy or through any other
person, firm or corporation, whether by virtue of any
constitution, statute or rule of law or by enforcement of any
assessment or penalty or otherwise, all such liability being
expressly waived and released by Tenant.
(d) Tenant shall look solely to Landlord's estate and
interest in the Parking Garage (and the building of which it is a
part, if any) and the proceeds thereof for the satisfaction of
any right of Tenant for the collection of a judgment or other
judicial process or arbitration award requiring the payment of
money by Landlord and no other property or assets of Landlord,
Landlord's agents, incorporators, shareholders, officers,
directors, partners, venturers, principals (disclosed or
undisclosed) or affiliates, shall be subject to levy, lien,
execution, attachment or other enforcement procedure for the
satisfaction of Tenant's rights and remedies under or with
respect to this Lease, the relationship of Landlord and Tenant
hereunder or under law, or Tenant's use and occupancy of the City
Unit or any other liability of Landlord to Tenant.
(e) In any circumstances where Landlord is permitted to
enter upon the City Unit during the term hereof, whether for the
purpose of curing any default of Tenant or repairing damage
resulting from fire or other casualty or eminent domain or as
otherwise permitted hereunder or by law, no such entry shall
constitute an eviction or disturbance of Tenant's use and
possession of the City Unit or breach by Landlord of any of its
obligations hereunder or render Landlord liable for damages or
entitle Tenant to be relieved from any of its obligations
hereunder or grant Tenant any right of recoupment or other
remedy; and in connection with any such entry incident to
performance of repairs, replacements, maintenance or
construction, all of the aforesaid provisions shall be applicable
notwithstanding that Landlord may elect to take building
materials in, to or upon the City Unit that may be required to be
utilized in connection with such entry by Landlord.
(f) The Maintenance Costs shall bear interest at a rate
which is three (3) percentage points in excess of the "base" rate
quoted from time to time by Citibank, N.A. in New York, New York
(not, however, to exceed the maximum lawful rate) or, if no such
32
"base" rate is quoted, 15% per annum from the date due (beyond
all applicable notice and grace periods) until actually received
by Landlord.
(g) In the event that the Parking Garage shall be destroyed
by any cause whatsoever, or if the Parking Garage shall be taken
for any public or quasi-public use or improvement by virtue of
the power of eminent domain, Landlord shall have no obligation to
rebuild the Parking Garage or damaged portion thereof, but to the
extent the Landlord reconstructs the remaining portions of the
Parking Garage and the City provides the Landlord with sufficient
funds for the rebuilding of the City Unit (whether by insurance
proceeds, condemnation awards, or otherwise) then the Landlord
shall rebuild the City Unit at the same time. If the City Unit
is not rebuilt, then Landlord shall be obligated to provide to
the Marina Lessee the two (2) drive-in dropoffs together with the
other temporary non-parking facilities required by paragraph 2 of
the Parking Agreement. Nothing set forth herein is intended to
prohibit the City from its right to seek a condemnation award for
its interest in the City Unit in the event of a taking of the
City Unit.
(h) The terms "liability" or "liable" as used herein shall
include, without being limited to, any loss, cost, claim, damage,
fine, penalty or expense.
25. ASSIGNABILITY:
(a) Except as otherwise herein expressly provided in this
Lease, neither Tenant nor its successors-in-interest by operation
of law or otherwise shall sell, convey, transfer or assign this
Lease or sublease the City Unit or any part thereof, or permit
the same to be used or occupied by anyone, or mortgage, pledge or
hypothecate its estate or grant any concession or license within
the Parking Garage and any attempt to do any of the foregoing
shall be void and of no force or effect. Notwithstanding the
foregoing, Tenant shall be permitted to mortgage or pledge or
otherwise hypothecate its interest in the City Unit, to the
extent permitted by law, for the purpose of obtaining the funds
necessary to pay the Purchase Price Component. In the event
Tenant shall propose to sell, convey, transfer or assign its
interests in this Lease or sublease the City Unit, Landlord shall
have a "right of first refusal" in respect of such transaction.
With Landlord's prior reasonable approval, Tenant shall have the
right to grant a concession or management agreement to a
33
concessionaire or managing agent with experience in operating
parking garages for the purpose of operating of the City Unit on
behalf of Tenant; provided, however, that any such concessionaire
or managing agent approved by Landlord shall be bound by the
terms and conditions of this Lease and any failure by such
concessionaire or managing agent to perform strictly in
accordance with the terms hereof shall be deemed to be a default
by Tenant hereunder.
(b) The parties hereto acknowledge that the Landlord will
require financing to obtain the funds necessary for the
construction of the Parking Garage. In the event any such lender
shall require modifications of this Lease as a condition
precedent to such funding, Tenant agrees to reasonably consent to
same provided the requested modifications will not increase the
obligations of Tenant nor diminish the rights of Tenant
hereunder.
26. NOTICES AND DEMANDS: All notices, demands,
correspondence and communications between the City, the Agency
and Landlord shall be deemed sufficiently given under the terms
of this Lease if dispatched by registered or certified mail,
postage prepaid, return receipt requested, addressed as follows:
If to the Agency:
Miami Beach Redevelopment Agency
1700 Convention Center Drive
Miami Beach, Florida 33139
Attention: Executive Director
with a copy to:
Miami Beach Redevelopment Agency
1700 Convention Center Drive
Miami Beach, Florida 33139
Attention: General Counsel
If to the City:
The City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
Attention: City Manager
34
With a copy to:
The City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
Attention: City Attorney
If to Landlord:
Yacht Club at Portofino, Ltd.
c/o The Related Group
2828 Coral Way
Miami, Florida 33126
Attention: Roberto Rocha
With a copy to:
Portofino Yacht Club, Inc.
404 Washington Avenue
Miami Beach, Florida 33139
Attention: Margaret Nee
With a copy to:
Stearns Weaver Miller Weissler
Alhadeff & Sitterson, P.A.
150 West Flagler Street
Suite 2200
Miami Florida 33130
Attention: E. Richard Alhadeff, Esq.
With a copy to:
Greenberg, Traurig, P.A.
1221 Brickell Avenue
Miami Florida 33131
Attention: Matthew B. Gorson, Esq.
If to Marina Lessee:
Miami Beach Marina Associates, Ltd.
300 Alton Road, Suite 303
Miami, Florida 33139
Attn. Robert W. Christoph, President
35
With a copy to:
Bilzin, Sumberg, Dunn & Axelrod, L.L.P
2500 First Union Financial Center
Miami, Florida 33131
Attention: Carter McDowell, Esq.
or to such other address and to
person as to the City, the Agency
time designate by written notice to
the attention of such other
or Landlord may from time to
the others.
27. CAPTIONS: The captions of
convenience and reference only, and in no
extend or limit the scope or intent hereof.
this Lease
way define,
are for
describe,
28. GOVERNING LAW - VENUE: This Lease shall be governed in
its enforcement, construction and interpretation by the laws of
the State of Florida, without regard to principles of conflicts
of laws. This Lease is being executed and delivered pursuant to
the Parking Agreement and in furtherance of the Development
Agreement and the resolution of any disputes hereunder shall be
under the continuing jurisdiction and authority of, and shall be
submitted for resolution to, the Circuit Court of the 11th
Judicial Circuit, Dade County, Florida (or any successor court,
as applicable) pursuant to paragraph 9.7 of the Development
Agreement. The parties hereto waive a trial by jury of any and
all issues arising in any action or proceeding between them or
their successors or assigns under or in connection with this
Lease or any of its provisions or any negotiations in connection
therewith. This Lease shall not be more strictly construed
against either party, both parties having participated in the
negotiation and preparation hereof and both parties have been
represented by legal counsel. In the event of any litigation
between the parties under this Lease for a breach hereof, the
prevailing party shall be entitled to reasonable attorneys' fees
and court costs at trial and all appellate levels.
29. RELATIONSHIP OF PARTIES: It is specifically understood
and agreed by and between the parties hereto that: (1) the
subject garage is located within a private development; and
(2) the relationship of the parties is contractual in nature, and
neither the City nor the Agency is a joint venturer, partner or
agent of Landlord. No third party, other than the Marina Lessee
as specifically provided herein, shall be deemed a third party
36
beneficiary of this Lease, nor shall the same be enforceable by
any such third party.
30. TIME IS OF THE ESSENCE: The parties specifically agree
that time is of the essence regarding this Lease.
31. PARTIES BOUND: The City and the Agency shall be
jointly and severally liable and bound under this Lease, and the
Landlord shall be bound by this Lease, subject to the limitations
set forth in Paragraph 24 above.
32. SEVERABILITY: If any term or provision of this Lease
or the application thereof to any persons or circumstances shall,
to any extent, be invalid or unenforceable, the remainder of this
Lease, or the application of such term or provision to persons or
circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected and the same shall be
enforced to the fullest extent permitted by applicable law.
33. FURTHER ASSURANCES: The parties hereto shall forthwith
execute and deliver all other appropriate supplemental agreements
or other instruments or documents and take any other action
required to accomplish the purposes described herein.
34. BROKERAGE: Landlord and Tenant each represents and
warrants to the other that they have dealt with no broker,
salesman, agent or other person in connection with this
transaction, and that no broker, salesman, agent or other person
brought about this transaction. In the event of any claim for a
broker's, agent's or finder's fee or commission in connection
with the negotiation, execution or consummation of this
transaction by any person, the party upon whose alleged
statement, representation or agreement which results in such
claim or liability shall indemnify and hold the other party
harmless from and against any such claim and liability. The
provisions of this paragraph shall survive the termination of
this Lease.
35. RADON GAS: RADON IS A NATURALLY OCCURRING RADIOACTIVE
GAS THAT, WHEN IT HAS ACCUMULATED IN A PARKING GARAGE IN
SUFFICIENT QUANTITIES, MAY PRESENT HEALTH RISKS TO PERSONS WHO
ARE EXPOSED TO IT OVER TIME. LEVELS OF RADON THAT EXCEED FEDERAL
AND STATE GUIDELINES HAVE BEEN FOUND IN PARKING GARAGES IN
FLORIDA. ADDITIONAL INFORMATION REGARDING RADON TESTING MAY BE
OBTAINED FROM YOUR COUNTY PUBLIC HEALTH UNIT. [NOTE: THIS
37
PARAGRAPH IS PROVIDED FOR INFORMATIONAL PURPOSES PURSUANT TO
SECTION 404.056 (8), FLORIDA STATUTES, (1988).]
36. LANDLORD'S REPRESENTATIONS: Landlord represents and
warrants to Tenant the following: (i) Landlord is the sole fee
simple owner of the Property subject to only those title
exceptions set forth in Exhibit "D" attached hereto and made a
part hereof (the "Title Exceptions"); (ii) Tenant shall have
access to the City Unit on a seven-day a week basis; and (iii)
this Lease has been duly authorized, executed and delivered by
and on behalf of Landlord and constitutes the valid and binding
agreement of Landlord enforceable in accordance with the terms
hereof.
37. WAIVER OF SUBROGATION: Notwithstanding anything in the
Lease to the contrary, Landlord and Tenant hereby waive and
release each other (to the extent permitted by applicable
insurance) of and from any and all rights of recovery, claim or
cause of action, whether by subrogation or otherwise, against
each other, their agents, officers and employees, for any loss or
damage which may occur to the Property or the Parking Garage or
to any equipment, machinery, goods or supplies (regardless of
cause or origin, including negligence of Landlord or Tenant and
their agents, officers and employees), which loss or damage is
insured by any policy of insurance carried by the other party but
only to the extent the insurance is paid on account thereof.
Each party to this Lease agrees to immediately give to each
insurance company written notice of the terms of the mutual
waivers of subrogation contained in this Paragraph and to have
the insurance policies properly endorsed, if necessary, to
prevent the invalidation of the insurance coverage by reason
thereof and each party shall reasonably seek to obtain consent
from the insurer of this waiver.
38. RECORDATION: Simultaneous with the execution of this
Lease, Landlord and Tenant shall execute a memorandum of this
Lease in recordable form and in a form reasonably acceptable to
the Landlord and Tenant, and Tenant shall record said memorandum
of lease in the Public Records of Dade County, Florida.
39. ENTIRE AGREEMENT: This Lease, together with the
referenced provisions of the Parking Agreement and Development
Agreement, contain the entire agreement between the parties
hereto and all previous negotiations leading thereto, and this
Lease may be modified only by an agreement in writing signed and
38
sealed by Landlord and Tenant. No surrender of the City Unit, or
of the remainder of the Term of this Lease, shall be valid unless
accepted by Landlord in writing. Tenant acknowledges and agrees
that Tenant has not relied upon any statement, representation,
prior written or prior or contemporaneous oral promises,
agreements or warranties except such as are expressed herein.
IN WITNESS WHEREOF, this Lease has been executed by the
parties on the day and year first above written.
Witnessed by:
CITY OF MIAMI BEACH
~5lc:.te-tJ HlAlvvi-12
By:
Name:
Title:
<; ...-J. TrujIllo
Attest:
Name:
Title:
Approved:
, City Attorney
J!/J7~ /LNJ,c!
fr1 ~ DIC-
MIAMI BEACH REDEVELOPMENT
AGENCY
,5k~ H L,(' ~ t
By:
Name:
Title:
~I'\d; Tr~.J/o
Attest:
Name:
Title:
At'PROVED AS TO
fORM & LANGUAGE
& FOR EXECUnON
1!e- S~1J
, , .. ,,.,~ Counsel
39
1J/J!
K !~~N .J:tVJ '"
MA1V,<L j?~i/'MA,.J
A~~.
APPROVED AS TO
fORM & LANGUAGE
& FOR EXECUTION
!v1f ~ ~
,/'":;;w<:-----'''
I;; " l
"r ',', . I
, :;(1(J~~ J
-~~' J' J
.-..' c..
LY"h cJ~
oJ) J~C ~
6
MIAMI/SAULG/861433/$Q 006' .DOC/12/03/98/15039. 033703
YACHT CLUB AT PORTOFINO, LTD.,
a Florida limited partnership
By: TRG-YCP, LTD., a Florida
limited partnership, General
Partner
By: TRG-YCP, INC., a Florida
corporation, G neral
Partner :3
/ ~/&C:1
By: vdr
Name: ROBERTO S ROC"'''
Tit 1 e : EXECUTIVE VICE PRESIDENT
40
EXHIBIT "A"
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NEW RENr.ALAPARiMENTBUWNG: -----
YACHT CLUB AT PORTOFINO COHEN' FREEDMAN · ENCINOSA
MIAMI BEACH. R..ORlDA Architects PA
1603 So. Dixie H\Jbway. Salle 205 Mlam~ F1or!4.a 33143 305 669 93t3
EXHIBIT "B"
Property Description
Lots 9 through 14 inclusive, and the Northwesterly 20 feet
of Lot 8, the Southeasterly line of said 20 feet being
parallel to the common line between Lots 8 and 9, in Block
111, of "OCEAN BEACH ADDITION NO.3," according to the
Plat thereof as recorded in Plat Book 2, at Page 81, in the
Public Records of Dade County, Florida, together with the
accretions thereto.
EXHIBIT "c"
Plans and Specifications
CAAWlHa
NO.
IlL
.-.,
YAcHT CLUB AT F'ORTOFINQ
IDENTIFICATloN OF DRAWIN9S & SP~CIFICATIONS
... ACDeNDA TO ~~EC:IFIC:ATIQNS
EXHIBIT 1
CAAWlHQ TtTLI
LATEsT WIUION
RSV. R&V .
NO. CAT!
RIDUT
ReV. CA TI~
G.C. CHASE CONSTRUCTION CO.
ARCHITliCT . cot-llN Ffl,EECMAlIIllfllcIHSOA . AACHlTECTa "A
LN/O&CUE MCH1TECT . FUJrER DUIGN ASSOCIATES, P.A.
CML EHClINEERlNQ . cONSUL. TlNCI ENGINEERlNO & SCliNCli, INC.
STRUCTURAL ENOI$EAlNO . THE RAUl. pUla GROUP, P.A. "CONSUL TlND ENOINURI
'l..EC;T'RleAL ENGINe!RlNG . HLJfliEY, NICOLAlCliI. GlMCIA. IUA!UiZ C~Ul.T1Na Ii!HOlHlrlU
MECHAHlCAL. ENOlNiERlNQ ,I<4UPIEY, NlCOLAlDEI. GARCIA, IUARZZ COHIULTlHO lNOINEIiRII
PLUMBIHO IHOIHEEAlNG "HUFlEY, N1CQI.AlDi., QA,RclA, IUAIliZ COfllsULl1NG EHOIMEERa
FIR! PROTECTION liNIllIH;!I'.INO "HUFSE'l', NIC~a, QNlC~ IUAAEZ CONSULTING .NOINIEERS
QEOTECt4NICAL.IiNOINEER . ~!fIl.ASIiK & BARRlUAO CONSUL TAHTI, INC.
ARCHIT~CTURAL DRAWINGS
IrO
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to"'"
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SECOND FL.ClOA PlAN 1/18" lCALf
THIRD FLOOR Pl.NI1/1r SCAlE
f'Ol,JR~ F1.OOR PUN V18' 5c,JL.i
FIFTH 1"UXlR"~ 1/18' GCIU
SIX F1..CCfl PU\N 1/1~ a~
FiRST fl,.CX)R PL.AH 1/11. GCo'U:
SEeoHD FLOOR PLAN 111~ 8~
THIRC F\,,(lClA, Pl..YI118" &CAI..E
FQlJRTH I'1.QQR PLNoI ~ RFTH lE.'v1OL PUN t IS" ;~
SIXTH ~L F'LNJ 111" SCALE
6ECTlOf\II ~OUGH PCCt.. SP,," GAZEace NIID POet. I'AVlUCN
T~ES ~D MARINA FIRST L.E'oIE~ 'fI" GCAlZ
T~Ea AND HIAl. TH Ol.UB saCOND lE'JE1. 'fI'lCAL!
TCWNHCUGEIi ANCl HEAL. TH CLUB THIRD L.EIJEL 1.' 6Co1U
T0WNHaJ8~ I"OUR'Il'l LEWL. 1/1" ae,W!
N'NCTMENT'I f\F'nol L.EVEL 118" sc.ALZ
LOWER APAAn.tE~ LEVti!LI 7"'. & UPPeR N'ARTMENT'I ~l..S 1 we 118" BeALl
L.OIo'IERANO r.41OOlE PENTHOUsE I.!WlS t~' SCN..!
IJPF'liA PSN'n-lOUsE LaVeL 118" BCALE
ROOf' l"'J.N 111' SCALa
LOWER I..EVEL F\.OORG M4 1'oC' Ic.u
UflPliR U.VEL F\.CORS 1 ~ 1/.. SCALE
LOWER PENTHOUSE 3151' ,-eva. (NORTH) 1/4' SCAU!
LoWE" PENTHOUSE! S18T LEVEL (SOUTH) 1/.' 6CAU!.
Jo!IQOLS PEMrIOUSE 32NQ l1WL <NORTH)1/4'" SCALE
MICOt.E f'EJ'(fHQUSIt JZND LEVEL (S0lJ'M0!) 1/''' tcIU
UPP!R ~SE ~RC LEVEL. (liCRTli) 1/~ SCALI
UPPIiR pgm.j(lUSE 33RD L.!WL (SCIJT1-l) 1/4" SCAU
TCl'oYPf1OUSIi ,tIlD aAAAlNA. PI..AN FlRST LtvEL 1/.. 5C.AL!
l'CINNHOUGE SEccNlJ I.E't'l;L N4D HEAL. ~ ClUB I'UN 1W sc.au:
TCWNHOUaE. ~ LEVEL ~ HEAl. TH CL.lJB ~ ".' sCAL.E
l'C'fYMiCUaU fQIJf\'TH LEVEL 1/'" sCAl..l
t.u.Rl~ ~AItTJofENI'. t'V'TH LSIE\. 1/4" SC#oL.E
IlL. TCfHI.OAC TOYr'NHOU8& PLAN. 'ST FlOOR. ".' 8c.t.L.E
IlL. T~ RCID T(MINHOUSE Pl.AN. 4!Nb It\.~. 114" SCAL.Ii
UNtTa 'Q' . "r PLAN. '/4' ~
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A4S
A-SI
YACHT CLUB AT pO~TQFJNQ
IDE~TIFICATION OF DRAWINCi9 & i~eCtFJCATIONS
& AOCENOA TO SPECIFICATIONS
EXHIBIT 1
bRAWlNG TtTU
WEST ELEV"T1ON 1/18" SCAl.E
NORTH EL!VATICN 1/'" Cc.tU
ltOVTH ELiVATICN ",., 1e.AU!
P~TW. ELiV^,IlQN 1/''- tCALE
PARTIAl. !I..EVATlCN 1,.. BeAU!
PAMTW. EL.EVATtON 1,.- 8CA1..!.
1"'I'PlC.'l. ~U!'i"T1CN8 OETNUl
sUlLtllNO .aCTlON M 1/11"
BUILDING &EQ~ 841/15"
BUlLDlNO 8~TICN Co4; 1111'
slJl.t)lNQ IECTlON ~ 11,r
OAANOi 81CTlCN E~. r:~ 1/111'
IITM'" U~P~
ST~,IIU:U. '" Pl..-N
nAlR" 1t'2 IfCTICIN ac,.U 1/04'
$T~R a&... 81!CTJQN 1/''' SeAL.!
'MWiH ctfVT'2 SECTION 1/4" MISC. CETAlLS
SECTION THROUCIH ELEVATORS 1/04'
WlI\llXlW TYPE8. GTCREFRCNT ceTAlLS
ROOM F1NIliH SCHEOUut .. WALl. TTf'ES
OOOR aaiEOULE It C&.TAlLI
tlTERtoft nEVA'nONS
T'l'PlCAI.. ~ClCAPPED DETAIl-'
~ HNIOIC:N'PEt) CET,AIU
T"rJ"ICAL ~ beT""
~ 1'ClWNHQUSI! SECTlON8
MM1NA'TCttNNHCCJS8 SECT10HS .. CET AILS
T'/'PIQI,J. 1/~ BaC1'lOHS
R~TmCEu.a PLAN LOeSY~L 1ft('
RUL!CTSQ QI!ll.,IG ~ LEVEL. TWO 118"
IUFl&CTED CUJNQ PU.N LEVI.LS 34 ANe L.EVEL.1I 118"
REFl.ECTED CEIUNQ FUN LEVEU 1.104 NolO 1&.30
AEfUcnp C!.lIJNO PUN LOWE~, &AIOOU AHa UADER ~NTH0U8E L.E\IILS
IW'\.ECTED ClU<<) PUH LEvEL8 {I, 2 (ll'ARl~
FlEJ'UC'tm CEIlH3 ~ Jrd.~, ~ I.JMOL5 ~Itu-)
LANDSCAPE & lRRlGATION DAAWINGS (N.I.e.)
1.-1 ClRQUNO FLOOflIJ.NClQN'lNl3 ~ . a~ct
L.:z REidUiATlON /".E'VliL lANOSCAPE P'.N<II spe:ca
L-J REC. LML PUNTER I.A'rWl' .. ENTRY f"I....l.ZA
1-1 IAAIOATlON (OROU~ LEVEL.) LAYCU'T'
1-2 IRRJ(MTIOH ~CAEAncN ~L) LA'(QtJT'
~ IRRIGAT10H SPECS ANCl DETAILS
CML. CRAWlNQS
c.1 LAYOUT PUHANC NO~I
e.z PAVINg, OAADING. ~E. FV.N
C..3 alTl Cl!T M.I
Za"d
PIIge2
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~o. DATI
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121298
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NO.
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VACHT CLUB AT PORTOFINO
JP!:NTIFICATION OF D~WINt3S & speCIFICATIONS
& AO~ENDA TO SPECIFICATION!
~XHIBrT 1
CRAWlNO nn..e
alt:3a&T
REV. CAlS
LATEST'V1;RSIClN
REV. REV .
HO. CAn;
JIb,.
c.4
C..lS
C4
Cf\l,lNAOECETNLA
WATER llSEWER pt,AN
WATER 6 seWER DETI'IUI
STRUCTURAL DRAWINGS
"""
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f'Ol,JNeJ. DETAILS. PILE c:AP1i .. GEN1iJW. NOTES
PILE eN' DIii AU
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FCUNOATJCN secTIONS
1ST IJ1.\liL PAATlAl.. PLAN -A"
1ST L!V!L PART1AI.. PLAN "iii'"
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:SRI) LEVEl. PARTW.. PI..AH"Ii:
:lRC U!V!L pMTW" I"\N<I "B.
.tTH U!VEI.. PARTW.I"V.N .,.-
4n41..EWL PNtTW.. PI.AN "..
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5 n-II..E\I'EL. PARTIAL. PLAN "B" (I'l'V,MING . REINFCRClNG)
1111 Ui'VII. PAAT1AI. p~ ",." (PIWAINo) .
6TH I.E\r'EI. PAATW. P\.N4 "A" (RE1NFOR~)
fTH LEVEL PAA'ML. PLAN "aw lFI'WollNO)
rrw I..E\IiL PAR'T1AL P\.AN '" (R~INfORCIHG)
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l.Jf'PER PENTHOUSE
LOWER RCOF
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GHEAR w.au.a
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CCUJMH ICHEOUI..Ji
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Page 3
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IDeNTlFIC~TION OF ORAWSNGS & SpeC1FICATIONlS
& A~DENOA TO 8PI!Clr:ICATlONO
l!XHIBIT 1
OAAWlNQ ClRAWlNa Tm.!
NO.
Blel8ET
REV.OAn:
LolTI!&T VERlloH
REV. fIUlV .
NO. DATE
21:2..7
212"-'81
212tU87
311M?
143 ClARAGE , TOWNHClUSe BECTlON5
8.$4 STAIR BICTlQNS
a~ ~ I~C'l'lON MlO TRUSS DETAIUi
1.41 ROOF"~
~1M17 '
~LECTRJCAL DRAWINGS
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EL!~T, P\,AH LaW!. THREE 1118" IlCAL.E
ELECT. ~ UM:l.. "OVR 1/18" ~
&LEer. ~ LEVEL ~ 111.. ~
EUCT. p~ LEVEL 8IX ;11fl" I~
eLECT. PLAN LEVEL. ONE 1/1" SCALE
ELECT. Pl.AN L4'J1L TWO 1/s. sCAUi
El.ECT. p~ l..El:W1. THA2! III" GCAU!
E1.ECT. p~ LE.VEL FOUR, I'TYE IIl1" &e.tU
EU>CT. PLN<I LEVEL sIX 118" 8c.AU
ELECT. PLAH L.EWL Of\IE . TWO 1/1" 1c::AUl
ELlCT. P"..Nf LIVlL THREE n-lROUCH FIVE ,JI"SCAl.i
ELECT. PLAN L.elNER 6, UI"I"Ift L!WI. ,,,. ae.AL.I
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EI.SCT'. PUoN Uf'P,R PENTHOIJSi 1/1" a~
EI.!CT. KJN LClWER .. UPPER RCXJF ,.... SCALE
l.JQH1'NlNq PAOTECTlON CY8T. Pl..\N 111" SCALI
I.JGHtNlHO PROTECTION aVlT. HOTtI &. OI!T,f,/1.I
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et.e.CiR~ RISEI' OlAGMMG
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IDENTIf'ICATION OF DRAWI~G8 & SPECIFICATIONS
& ADDE:NDA TO speCIFICATIONS
,EXHU,IT 1
SPECIFICATION TITLE
SECTION
-
DIVISION ONE (1) - GENERAL REQUIREMENTS
01Q06 SUMMARY. ALTERNATes, ALLOWANCES & NIC ITEMS
01040 TYPICAL CONSTRUCTION REQUIREMENTS
DIVISION TWO (2) - SITEWORK
02130 CL.EAFUNG ANC GRUeelNG
02200 EXCAVATION FILLING AND COMPACTION
02250 SOIL POISONING
023e2 INTRUSION MORTAR CAST~IN-PLACe PILING
02810 PAVING
DIVIIION THRee (3) - CONCRETE
03100
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CONCRETE REINFORCEMENT
CAST~IN.Pl..ACE CONCRETE
HIGH STRENGTH CONCRETE
.. POST-TENSIONED CONCRETE
,
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DIvlSlQN FOUR (~) .. MASONRY
0.4200 UNIT MASONRY
04230 REINFORCED UNIT MASONRY
DIVISION FIVE (5) .. METALS
05120 STRUOTURAL STEEL
05300 METAL. CEC)(ING
05400 LIGHTGAGE METAl. FRAMING
05500 MISCEL.LANEOUS METAlS
05720 AAILlNC'aS AND HANDRAILS
DfVlSION SIX (6) . CARPENTRY
~100 ROUGH CARPENTRY
08200 FINISH CARPENTRY
PAGE SEVEN
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EIHIBIT 1
SPECIFICATION TITLE
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-
DIVISION sEVEN (1) .. THERMAL AND MOISTURE PROTECTION
07112 MEMBRANE WATERPROOFING
07120 FLUID APPLIED WATERPROOFING
07200 ROOF JNSULA TION
07320 CEMENT TIU: ROOFING
7510 ROOFING AND SHEET MCTAL
01820 METAL ROOF FLASHING AND TRIM
07&00 SEALANTS
DIVISION EIGHT (I) .. DOORS AND WINDOWS
08100
08210
01311
0&100
08520
08800
HOLLOW METAL COORS AND FRAMES
WOOO DOORS
GLASS SUDING OOORS
ENTRANces AND STOREFRONTS
METAL WINDOWS
GLASS .AND GLAZING
DIVISION NINE (9) .. FINISHES
09210 STUCCO ANO CEMENT PLASTER
01250 GYPSUM ORVWAU. .
00300 TILE AND MARSL.E
oe510 ACOUSTICAL. CEILINGS
01900 PAINTING
DlV1410N TEN (10) . SPECIALTIES
10110 TOILET PARTITIONS
10200 LOUVERS AND VENTS
10250 FIRE FIGHTING DEVICES
103QO SHOWER EN'CL.OSURES
105S0 TRASH CHUTE:
10810 AcceSSORIES
10820 L.OCKERS
DIVI810N ELEVEN (11). EQUIPMENT
NJA
PAGE 'EtGHT
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YACHT CLUB AT PORTOFINO
JDEN'(IFICATION OF DRAWINGS & !lPI';CIFICATIONS
& ADDENDA TO 8PECIFICA TIONS
:~XHIBIT 1
SPECIFICATION TITle
SECTION
DIVISION lWELVE (12) - FURNISHINGS
NJA
DIVISION THIRTEEN (13) -SPECIAL CONSTRUCTION
13052 SAUNA ROOMS
13100 SWIMMING POOL & SPA
DIVIsION FOURTEEN (14) . CONVEYING SYSTEMS
1~210 iRACTION E1.EVATORS
14212 HYORAUllC ELEVATORS
DIV'810N fiFtEEN (11) - MECHANICAL
1$010
15023
15a..t7
15051
15080
15Cl80
15100
15140
15181
15180
15250
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GENERAL PROVISIONS
CODES,. STANDARDS
IDENTIFICATION
MECHANICAL SU~PORT oeVICES
. PIPE AND PIPE FI'Ti'INGS
PIPING SPECIALTIES
VALVES
PUMPS
VIBRATION ISOLATION
MECHANICAL SYSTEM INSULATION
WATER TREATMENT
WATER SUPPLY PIPING SYSTEM
DOMESTIC HOT WATER SYSTEM
SOIL & WAStE PIPING
ROOF DRAINAGE SYSTEM
GAS PIPING SYSTEM
PLUMSING FIXTURES ANO TR.IM
AUTOMATIC FIRE SPRINKL.ER SYSTEM
STANDPIPE ANO FIRE Hose STATIONS
FUEL. HANDLING SYSTEM
COOLING TOWER (FIBeRGLASS)
CONOENSER WATER PIPING SYSTEM
REFRIGERANT PIPING SYSTEM
PACKAGED WATER COOLEO AIR CONDITIONING UNITS
DUCT HEAreRS. ELECTRICAL.
FANS
PAGE NINE
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VAcHT CLUB AT flORTOlIlNO
IDENTIFICATION or: DRAWlNQA & SPECifiCATIONS
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EXHIBIT 1
"
I
SPECIFICATION nTLE
8ECnON
-
158.2 DUC1WORK
15$101 HVAC CONTROL
15901 TeSTING ANO BAlANCING
DIVISION SIXTEEN (11). ELECTRIcAL
18010 BASIC ELECTRICAl. OENERAL REQUIREMENTS
1fSC~3 coDes.. STANDARDS
1810' RACeWAYS AND CONCUIT
18106 oUTLET. PULL & JUNCTION BOxeS
1e120 WIRE AND CABL.E
181040 WIRING DEVices
18150 MOTOR POWER AND CONTROl. WIRING
16426 SWITCt:lBOAAD
16440 OISCONNECT SWITCHES
18452 GROUNDING
1~O ORV..TYPE TRANSFORMERS
11-470 PANEL BOARDS .
1lS472 METER ceNTERS
18475 OVERCURRENT PROTECTIVE DEVICES
164;5 AUTOMATIC TRANSFER SWITCH
18515 UGHTINO FlXTURES AND LAMPS
18525 EXTERIOR LIGHTING
16820 sTANDBY EMERQENCY GENERATOR
1eeno L.IGHTNING PROTECTION SYSTEM
11721 LIFE SAFElYlFlRE AlARMNOICE SYSTEM
UI7'-O TELEPHONE RAceWAY SYSTEMS "
1S141 TeLEPHONE RACEWAY &YSTEMS (SIMPLE)
18781 SPECIAL SYSTEMS
"CDENCA ,
AODENDUM #. 1 DATED JAN. 22.1997 CONSISTING OF 33 PAGES
ADOENDUM # 2 OATEO FEB. 19, 1907 CONSISTING OF 1 PAGE
ADDENDUM,. 3 OATED FEB. 28.1897 CONSISTING OF 1 PAGE
9EOTEC"~ICAL SOILS REPORT
KADERABEK" BARRIERO CONSULTANTS, INC. REPORTS TO THe RELATED GiROUP
OF FLORIDA, INC. OA TED OECEMBER 23. 1 laee AND APRIL. a. 1997.
6
PAGE TEN
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