Lease Agreement
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LEASE AGREEMENT
THIS LEASE AGREEMENT (the "Lease") is made and entered into
as of the 22nd day of April ,2002, by and among TRG-SSDI,
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 B:
In consideration of the payments of rents and other charges
provided for in this Lease, the covenants and conditions
hereinafter set forth, and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, Landlord 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 hereinafter set forth, that certain City Unit (the
"City Unit"), consisting of one hundred eight (108) parking
spaces as the same may be adjusted pursuant to paragraph 4 below
(the "City Parking Spaces"), 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 "8" 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 wi thin 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 "Comp1etion Date") 'so long
as (a) the Parking Garage has been constructed in substantial
accordance with the "Plans and Specifications" set forth on
Exhibit "e" 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, notwithstanding 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.
Notwithstanding 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 I s deli very 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 Landlord, at the end of the
Term of this Lease and/or upon any cancellation or early
termination of this Lease, the City Unit in as good condition as
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
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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 Tenant's 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, that certain
Settlement Agreement dated April 15, 1998 by and between West
Side Partners, Ltd., a Florida limited partnership ("West Side")
and Tenant, as amended by letter agreement dated October 15,
1998 (the "Settlement Agreement"), and that certain Amended and
Restated Parking Agreement by and between West Side and Tenant,
dated as of May 24, 1999 and recorded in Official Records Book
18626, Page 4822 of the Public Records of Miami-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
time. Landlord shall, upon receipt of the list referred to in
subparagraph (i) hereof, commence to correct all such defects
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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 Pri.ce Component" in the amount of One
Million One Hundred Forty Seven Thousand Two Hundred Eighty Four
and No/100 Dollars ($1,147,284.00), together with any sales tax
due thereon (if any), payable simultaneously with the execution
hereof; and
(b) a single installment of Base Rent for the initial term
of this Lease equal to $101.00, plus any applicable sales tax
thereon (if any), due and payable 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
adjust the Purchase Price Component on the basis of (i) 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 108
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 storage areas and 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
with respect to parking spaces shall be made at the rate of
$10,000 per space, as adjusted by any increase in the Consumer
Price Index - U.S. City Average - All Urban Consumes (index) as
published by the United States Department of Labor's Bureau of
Labor Statistics, for the month of March, 1998, as compared with
the index for June, 2000, (added for each additional space built
and delivered in excess of 108 or subtracted for each space less
than 108 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.
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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 applicable,
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
April 24, 1999, 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
herein. Such covenant and agreement on the part of the City to
budget and appropriate such amounts of Non-Ad Valorem Funds
shall be curnulati ve 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 it 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
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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
received 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.
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
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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 shail be paid from the date due
(beyond all applicable notice and grace periods) until actually
received by Landlord.
5 . USE:
(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 wi th the
operation, management, maintenance or repair of the Marina (as
defined in that certain Agreement by and among inter alia, West
Side and Tenant, dated November 7, 1995, recorded on November 9,
1995, in Official Records Book 16987, at Page 1197, of the
Public Records of Miami-Dade County, Florida (the "Devel.opment
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 "Permi.tted Users"), and for no other
purpose; provided, however, that to the extent that there is
located wi thin 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
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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.
(d) Tenant acknowledges and agrees that except only as
specifically provided in this Lease (or otherwise as may be
agreed by written agreement between the parties) and as may be
necessary for vehicular and pedestrian access to and from the
City Unit, Tenant shall have no rights to use any portion of the
Property.
6. OPERATIONAL STANDARDS:
(a) Subject to subparagraph (b) below, the parties shall,
in accordance with the Standard (as hereinafter defined),
reasonably determine initial systems of ingress and egress, and
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
collecti vely 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 adj acent to the Parking Garage. Landlord shall
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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 wi thin the
forty-five (45) day period prior to Closing shall, pursuant to
paragraph 3 of the Settlement Agreement, be submitted for
resolution to the Circuit Court of the 11th Judicial Circuit,
Miami-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 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 with 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, if any, located within the City Unit, and shall
install appropriate security devices with respect to the City
Uni t, 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 Operating Standards and subject
to such Rules and Regulations (as defined in Paragraph 8
hereof) . In the event Landlord elects to institute security
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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 wi thin 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,
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
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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
limitation, 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
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
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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 3 of the Settlement Agreement be
submitted for resolution to the Circuit Court of the 11th
Judicial Circuit, Miami-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: In addition to the Base Rent, Tenant
shall, during each lease year, pay to Landlord as "Additional
Rent" , "Tenant's proportionate share" of "Operating Expenses",
"Taxes" and "Insurance". As used herein the term:
"Tenant'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 27.6%.
"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
payor 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
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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 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 within 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
13
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. Wi thin 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. Wi thin thirty (30)
days after receipt by Tenant of said statement, Tenant shall
have the right in person to inspect Landlord's books and records
as pertains to said Operating Expenses, Taxes and Insurance, at
Landlord's office, during normal business hours, after
reasonable prior notice. The statement shaJ,.1 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 obj ection which
Tenant may raise with respect thereto and Landlord shall
immediately creditor 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.
14
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
limi ting 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.
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 4 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
15
operation, decoration, cleaning, maintenance, safety , security,
al teration 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, 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 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 4 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
16
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 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. QUIET 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
performed, 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 enjoyment of the City Unit during the Term hereby
demised.
14. GOVERNMENTAL AND OTHER REQUIREMENTS: 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
17
local environmental laws, statutes, regulations or ordinances
presently or hereinafter in effect, as amended.
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 utili ties 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
responsibili ty 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
Landlord in abiding by all reasonable regulations and
requirements which Landlord may prescribe for the proper
functioning and protection of all utilities 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 mechanical installations in the City Unit,
and Tenant agrees that there shall be no construction of
partitions or other obstructions 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, invitees,
licensees or contractors shall at any time tamper with, adjust
or otherwise in any manner affect Landlord's mechanical
installations.
18
16. MECHANICS LIENS: Tenant shall keep the City Unit and
all parts thereof at all times free of mechanic's liens and any
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 liens 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 suit in discharging the City 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 within 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 Miami-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.
19
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, invitees 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,
install,ations, 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
effective to prevent injury 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
modify at any time such communications or security systems or
20
procedures without liability to Tenant or anyone claiming by,
through or under Tenant.
(c) To the fullest extent permitted by applicable law,
Tenant agrees to indemnify, defend and save Landlord harmless of
and from all. loss, cost, liabili ty, 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.
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) subj ect Landlord to any liability for
21
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 subject 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 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
Aqreement") 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") .
22
(b) This Lease and all rights of Tenant under this Lease
shall be and remain subject 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 othe:!= 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
consti tute 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
Aqreement") .
(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 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
23
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 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
24
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
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
25
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 particularity and Landlord 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 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 (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
26
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 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
27
-'
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 and Tenant shall
execute and deliver to each other, at such time or times as
either party may request, a certificate in recordable form
stating:
(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
certificate, and specifying the nature of such
defaults, if any; and
(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
wri tten 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 ~ither 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
28
"
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
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
29
,.
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 without 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 j oint venturer, or 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
30
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 "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 one (1)
accessway and dropoff parking area (for at least five (5) cars)
within the general vicinity of the northerly terminus of the
Property, together with fifty (50) parking spaces upon the
Property in a location reasonably acceptable to Landlord.
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.
31
.'
(h) The terms "l.iabil.ity" or "l.iabl.e" 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. Notwi thstanding 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 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 thi~ 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:
32
~
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
With a copy to:
\
The City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
Attention: City Attorney
If to Landlord:
TRG-SSDI, LTD.
c/o The Related Group
2828 Coral Way
Miami, Florida 33126
Attention: Jorge Perez
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
33
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 the attention of such other
person as to the City, the Agency or Landlord may from time to
time designate by written notice to the others.
27. CAPTIONS: The captions of this Lease
convenience and reference only, and in no way define,
extend or limit the scope or intent hereof.
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 Settlement 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, Miami-Dade County, Florida (or any successor court, as
applicable) pursuant to paragraph 3 of the Settlement 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
therewi th. 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 beneficiary of this Lease, nor shall the same be
enforceable by any such third party.
34
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
PARAGRAPH IS PROVIDED FOR INFORMATIONAL PURPOSES PURSUANT TO
SECTION 404.056(8), FLORIDA STATUTES, (1988).]
36. LANDLORD'S REPRESENTATIONS:
warrants to Tenant the following: (i)
Landlord represents and
Landlord is the sole fee
35
simple owner of the Property subject to only those title
exceptions set forth in Exhibit "0" 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: Notwi thstanding 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 Miami-Dade County, Florida.
39. ENTIRE AGREEMENT: This Lease, together with the
referenced provisions of the Parking Agreement, Settlement
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 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.
36
IN WITNESS WHEREOF, this Lease has been executed by the
parties on the day and year first above it en.
BEACH
Witnessed by:
David
Title: Mayor
Attest:Jil.w.d p(JA~
Name: Robert Parcher
Title: City Clerk
By.
Na e.
Title: Chairman
Attest:~ p~
Name: Robert Parcher
Title: Secretary
TRG-SSDI, LTD., a Florida
limited partnership
By:
TRG-SSDI, INC., a Florida
corporation, General
Partner
/)p~l?:P>~
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By: .
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37
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10
10
II
-
EXHIBIT ItBIt
Legal Description
PARCEL I:
Lots 1 through 7, inclusive and Southeasterly 30.00 feet of Lot 8, the
Northwesterly line of said 30.00 feet being parallel to the common line between
Lots 7 and 8, in Block 111, of OCEAN BEACH FLORIDA ADDITION NO.3,
according to the Plat thereof recorded in Plat Book 2, Page 81, Public Records of
Miami-Dade County, Florida, together with the accretions thereto,
ALSO:
PARCEL II:
That part of Biscayne Street (also known as Biscayne Avenue) as shown on said
Plat of OCEAN BEACH FLORIDA ADDITION NO.3, lying Westerly of the
Southerly projection of the West right of way line of Jefferson Avenue as shown
on said Plat and being bound on the West by Biscayne Bay, together with the
accretions thereto.
ALSO:
PARCEL III:
All that part of the North 132,0 feet of Section 10, Township 54 South, Range 42
East, described as:
Beginning at a point on the Northern boundary of said Section 10, which is
intersected by the Easterly boundary of Jefferson Avenue extended Southerly
across Biscayne Street as a point or place of beginning; thence Southerly
continuing the Easterly boundary of Jefferson Avenue extended for a distance of
132,0 feet to a point; thence Westerly 208.1 feet more or less along a line parallel
to and 132.0 feet Southerly from the Northern line of said Section 10 to Biscayne
Bay; thence Northwesterly meandering the Bay to the intersection of the
Northern line of Section 10; thence Easterly along the Northern line of Section
10, 285,0 feet more or less to the point or place of beginning (the Northerly
boundary of said Section 10 being common with the Southerly boundary of
Biscayne Street); also described as: All of that part of the North 132,0 feet of
Section 10, Township 54 South, Range 42 East, known as Tract A or the Smith
Company Bay Front Tract, more particularly described as follows, to wit:
Bounded on the North by the Northern line of said Section 10; bounded on the
East by the East line of Jefferson Avenue extended; bounded on the South by a
line parallel to and distant 132.0 feet South of the Northern line of said Section
10, and bounded on the West by Biscayne Bay, together with the accretions
thereto.
\\MIA-SRV01 \GOLDMANJ\ 1318588v02\S9FG011. DOC\6/18/01
EXHIBIT "C"
.,.
WAMI BEAaI MAlINA SlGNAGE
~ EMERGENCY VEHICLE ONLY BFtONO THIS PONT
[!J MIAMI BEACH MARINA PARKN3 11X24X2' DIREC1'ICtW.. 4X41'OST
@],MARINA SERVICE i DROP OFF PARKING 1IlCMtr
@] MIAMI BEACH MARINA MALlON RD. 3lIl4lX2' ~ 4X4PCSr
[!] DOCKMASTER DIREC'TIOfW. ZUK_,4X41'05tS1tEADER
(!] TO BA'tWAlK 1D{12(Z'
@] lAUNDRY - MENIWOMEN RESTROOM DIRECT10NAL 1:l'X14lC2'
[ffi DOCkS A-GfJ.M 1llRECTlOtW.1X12X2',<<4 POST
lIJ DOCKS A-lM IlIRI1ClICNAL 1X12X2'. 4lC4 POST
o MIAMI BEACH MARNA PARKWG 11X24X2' IlI'lECIDIN.
NOTES FOR ... BEACH IlAAWAPARKING GARAGE f'IM" 1EfELCN.Y)
1. ALL PARKING GARAGE SmlPES TO BE 4' PAINTED BI..ACK. EXCEPT
HANDICAPPED SPACES
2. EXTERIOR PARKING STRIPES TO BE 4' YELlOW PAINTED
3, ALL PARKING SPACES WHEa STOPS TO BE MARINA BLUE ca.OR
AND TO BE PINNED TO ntESLAB
4. ALL BOlLARD TO BE SAFETYY8.LOW
5. ALL HORIZONTAL PIPES AND DUCTS TO BE WHITE. EXCEPT ARE
SPRINKLER PIPES,1O BE RED
8, VERTICAL RISERS TO BE BlACK; CRASH ~ESAROUND TIfEM TO
BE SAFETY YELlOW
7. ALL INTERIOR WALLS AND UNDERSIDE OF SlAB 10 BE WHITE
PAINTED
MIAMI BEACH MARINA UGHTING
81 HOlOPHANE (UNIQUE SOlUTION DMSION) GRANVILLE SERIES
(GV-175MPH-48-F-B-X-J\..C.lAMP) (NO Rss, BANDS AND FIW.).
MOUNTED ON MAIN STREET LIGHTING - WADSWORTH
SERIES CAST ALUMNJM POST; STREET UGHTSAS PERCI1YOF MIMI
BEAafGtMlEl.lES.
.2 BOlLARD KIot l.IGtt'TNG VBS1100W MH 120V BlACK
183 WALl LIGHT FROM BEACON PRODUCTS INC. -lASER lO9024REF
175 W MH WHITE ON DAVIT WALL BRACKETW361 WHITE
-=-==- 8"-0" WRAP AROUND R.UORESCNT STRIP RAPI) STARTS'(
LITHONIA UGHTING DMIDMW AS '
NOTE:
- CELING HEIGHT IS 8"-8" A.F.F. TO UNDERSIDE OFTHE SlAB
- USABlE HEIGHT IS T-4- A.F.F. TO BOTTOM OF ~ SPRN<LER
PIPES
- NUMBER OF PARKING SPACES IS 108 (NClUDING 4 tIC)
~ .,,~_. ~...,... """"~PM'" "niMkWt~"""1d ........
""
EXHIBIT "0"
Title
1. Taxes and assessments for the year 2002 and subsequent years, which
are not yet due and payable.
2. Any claim that any portion of said lands are sovereign lands of the State of
Florida, including submerged, filled or artificially exposed lands and lands
accreted to such lands.
3. Rights and easements of the United States Government for commerce,
navigation, recreation and fisheries in and to any portion of said lands
which have been created by artificial means or accreted to any portions so
created and riparian rights, if any.
4. Utility easement over the vacated right-of-way reserved unto the City of
Miami Beach and contained in that Resolution No. 83-17427 filed August
23,1983, in Official Records Book 11885, at Page 1331.
5. SSDI Development Agreement between the City of Miami Beach, Florida,
Miami Beach Redevelopment Agency and South Shore Developers, Inc.,
dated April 17, 1986, filed in Official Records Book 12873, at Page 2612,
as assigned to West Side Partners, Ltd., by that certain instrument filed
April 7, 1994, in Official Records Book 16313, at Page 1077.
6. Agreement dated November 7, 1995 by and among the City of Miami
Beach, Florida, a Florida municipal corporation, the Miami Beach
Redevelopment Agency, a Florida public agency, and the Portofino
Entities listed therein filed November 9, 1995, in Official Records Book
16987, at Page 1197, as affected by Termination Agreement by and
among the City of Miami Beach. Florida, a Florida municipal corporation,
the Miami Beach Redevelopment Agency, a Florida public agency, and
West Side Partners, Ltd., a Florida limited partnership, dated May 24,
1999 and recorded May 27, 1999 in Official Records Book 18626, page
4372, as affected by Settlement Agreement by and among the City of
Miami Beach, Florida, a Florida municipal corporation, 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), and West Side Partners, Ltd., a
Florida limited partnership, dated April 5, 1998, as amended by
Amendment to Settlement Agreement dated May 20, 1998, Second
Amendment to Settlement Agreement dated July 13, 1998, Third
Agreement to Settlement Agreement dated September 23, 1998, and that
certain letter agreement dated October 15, 1998,
7. Amended and Restated Parking Agreement by and among the City of
Miami Beach, Florida, the Miami Beach Redevelopment Agency, and
West Side Partners, Ltd" dated May 24, 1999 and recorded May 27, 1999
in Official Records Book 18626, Page 4822.
I
\
Which amends, replaces, and supersedes that certain Parking Agreement
Official Records Book 12873, Page 2731, as amended by that certain
letter agreement dated April 7, 1994 in Official Records Book 16313, Page
1077, of the Public Records of Miami-Dade County, Florida, with respect
to the remaining property subject to said Parking Agreement.
8. Grant of Baywalk Easement executed by West Side Partners, Ltd., a
Florida limited partnership and Yacht Club At Portofino, Ltd., a Florida
limited partnership, in favor of the City of Miami Beach, Florida, a Florida
municipal corporation, dated January 10, 1996, filed January 29, 1996, in
Official Records Book 17077, at Page 1232, and amended and restated
by Amended and Restated Grant of Baywalk Easement by and among
West Side Partners, Ltd., a Florida limited partnership, Yacht Club at
Portofino, Ltd., a Florida limited partnership, and the City of Miami Beach,
Florida, a Florida municipal, corporation, dated May 24, 1999 and
recorded July 27, 1999 in Official Records Book 18713, Page 133; as
assigned by Assignment of Easements recorded April 13, 2000 in Official
Records Book 19073 at Page 2258 of the Public Records of Miami-Dade
County, Florida.
9. Waiver of Riparian Rights and Appointment of Qualified Entity by and
among West Side Partners, Ltd., a Florida limited partnership, Yacht Club
at Portofino, Ltd., a Florida limited partnership, the City of Miami Beach,
Florida, a Florida municipal corporation and the Miami Beach
Redevelopment Agency, a Florida public agency, filed January 29, 1996,
in Official Records Book 17077, at Page 1268, and amended and restated
in its entirety by that certain Amended and Restated Waiver of Riparian
Rights (SSDI South) by and among West Side Partners, Ltd" a Florida
limited partnership, Yacht Club at Portofino, Ltd., a Florida limited
partnership, the City of Miami Beach, Florida, a Florida municipal
corporation, and the Miami Beach Redevelopment Agency, a Florida
public agency, dated May 24, 1999 and recorded May 27, 1999 in Official
Records Book 18626, Page 4844, and re-recorded July 29, 1999 in
Official Records Book 18718, Page 1633.
10, Notice of Adoption of a Development Order for the Alternative Portofino
DRI in the City of Miami-Beach, Miami-Dade County, Florida, recorded
March 30, 1999 in Official Records Book 18541, Page 3641.
11. Grant of Easements for SSDI South Drop-Off Parking and Access
Easement Agreement given by West Side Partners, Ltd., a Florida limited
partnership, in favor of the City of Miami Beach, Florida, a Florida
municipal corporation, dated May 24, 1999 and recorded May 24, 1999 in
Official Records Book 18626, Page 4514; as assigned by Assignment of
Easements recorded April 13, 2000 in Official Records Book 19073 at
Page 2258 of the Public Records of Miami-Dade County, Florida.
12, Covenants, restrictions, reservations, prohibitions and requirements set
forth in Special Warranty Deed given by West Side Partners, Ltd., a
..
.
.
..
Florida limited partnership, in favor of TRG-SSDI, a Florida limited
partnership, dated July 28, 1999 and recorded July 29, 1999 in Official
Records Book 18718, Page 1645.
13. Allocation Agreement Regarding Alternative Portofino DRI Development
Order by and among West Side Partners, Ltd., a Florida limited
partnership, Yacht Club at Portofino, Ltd., a Florida limited partnership,
Sun & Fun,lnc., a Florida corporation, Beachwalk Development
Corporation, a Florida corporation, Azure Coast Development, Ltd., a
Florida limited partnership, East Coastline Development, Ltd., a Florida
limited partnership, and Sandpoint Financial, Ltd., a Florida limited
partnership, dated July 28, 1999 recorded in Official Records Book 18792,
Page 1530, as modified by that Certain Modification of Allocation
Agreement Regarding Alternative Portofino DRI Development Order dated
as of June 4, 2001 recorded under Clerk's File No. 01 R287425.
14, Easement Agreement by and between TRG-SSDI, Ltd., and Yacht Club at
Portofino, Ltd., a Florida limited partnership, dated July 28, 1999 and
recorded July 29, 1999 in Official Records Book 18716, Page 1649.
15, Terms and provisions of Portofino Holdings Agreement with The
Department of Community Affairs recorded in O.R. Book 16788, Page
3089, as affected by Notice of Adoption of a Development Order for the
Alternative Portofino DRI in the City of Miami Beach, Miami-Dade County,
Florida, recorded in Official Records Book 18541, Page 3641, as affected
by Declaration of Allocation of Development Limitations recorded in
Official Records Book 19306, Page 1348, by Second Declaration of
Allocation of Development Limitations recorded in Official Records Book
19306, Page 1354, by Third Declaration of Allocation of Development
Limitations recorded under Clerk's File No. 01 R287431 and by
Supplemental Declaration of Allocation of Development Limitations
recorded under Clerk's File No, 01 R287432.
NOTE:
All of the recording information contained herein refers to the Public
Records of Miami-Dade County, Florida, unless otherwise
indicated.
_, - ''1'-'- '
,Ii