5870 SW 70 ST_HOMETOWN STATION 1999 1AA1 � ILA
fC L M I A M I - D A D E
lei
Oty� �r�F.wl" Ila fa •
i 7w
tj
July 30, 1999
> iC--
Ms. Diana Morris
Assistant City Manager
City of South Miami
6130 Sunset Drive
South Miami, Florida 33143
Re: South Miami Station Negotiation Committee Meeting
Dear Ms. Morris:
Attached for your review is a copy of the first draft of the Lease Agreement between Hometown
Station, Ltd. and Miami-Dade County for the development of the South Miami Metrorail
Station. Please feel free to make any additional comments or revisions. Also, please be advised
that the next Negotiation Committee meeting has been scheduled for August 30, 1999, in the
Stephen P. Clark Center located at 111 N.W. 1S` Street, Suite 910. It will take place in the Large
Conference Room, beginning at 9:00am.
If you have any questions, please contact me at (305) 375-1507.
Sincerely,
Frank Talleda
Chief, Joint Development and Leasing
Office of Management Services
c: Alberto Parjus
Juan Cueto
Stephen P. Clark Center, l 11 Northwest First Street-.Suite 910, Miami, FL 33128-1999
LAW OFFICES
STEARNS WEAVER MILLER WEISSLER ALHADEFF&SITTERSON, P.A.
MUSEUM TOWER
150 WEST FLAGLER STREET
MIAMI,FLORIDA 33130 TAMPA OFFICE
SUITE 2200
MIAMI(305)789.3200•BROWARD(954)463-5440 SUNTRUST FINANCUIL CENTRE
FAX(305)789-3395 401 EAST JACKSON STREET
PATRICIA G.WELLES
TAMPA,FLORIDA 33602
DIRECT LINE(305)7893420 IS 13)223 8800
email:pwelles@swmwas.com
FT.LAUDERDALE OFFICE
SUITE 1900
200 EAST BROWARD BOULEVARD
FORT LAUDERDALE,FLORIDA 33301
July 21, 1999 (954)462-e500
Bruce Libhaber, Esq.
County Attorneys' Office
Miami-Dade County
91h Floor, 111 N.W. First St.
Miami, FL 33130
Re: Ground Lease for South Miami Metrorail
Dear Mr. Libhaber:
Enclosed are two copies of my mark up of your July 9, 1999, draft of the South
Miami Metrorail lease between Miami-Dade County and Hometown Station, Ltd. Also
enclosed are two copies of an initial memorandum containing inserts and comments for
the marked-up lease. Because I am providing the enclosures to this firm's client
concurrently with this delivery to you, we must reserve the right to make any additional
comments and changes which Hometown Station, Ltd., feels necessary or desirable.
I look forward to working with you on this matter and meeting with you on Friday,
July 23, at 10:00 in your offices.
Sincere)
Patricia G. Welles
PGW/ps
Enclosures
cc: Mr. Frank Gudorf
Raul Masvidal
G:1W-PGVW524110091aty-8tty.ftr D 7P/P 77,
.w
'JUL Z 2 1599
LEASING DIVISION
' r r
Inserts and Comments to 7/9/99 Draft of South Miami Metrorail Lease between
Miami-Dade County and Hometown Station Limited
1. [We will need to expand the definition of"air rights"and provide for a separate legal
description of the air rights. Other lease provisions will also be necessary to
appropriately document an air space lease.]
2. ... the Commencement Date (as defined herein) and ending on the date which is
ninety (90) years from the Commencement Date. The obligation to pay rent shall
begin on the date on which possession of the Land and the Parking Garage are
delivered to Tenant pursuant hereto.
3. [Improvements is not defined. Does "maintained" in its context mean physically
maintained?]
4.
5. (as defined herein) for the first year of the term hereof. . . .
6. the Parking Garage and . . . .
7. ... particular Phase of the Project on which construction is proposed to commence.
8. (i) Completion of Construction shall mean for any Phase, the date a Certificate of
Occupancy is issued for that Phase.
9. . . . for particular improvements. . . .
10. . . . and the activities conducted thereon.
11. . . . provided that the Purchaser, successor or transferee of Landlord's interest in
the Demised Premises assumes in writing. . . .
12. [We need to clarify what a "recognized" lending institution is, and we need to
expand the definition to include lenders like Lehman Brothers, who are not banks
or pension funds, etc.]
13. . . . tax credit syndication entity, . . . .
14. [Why is there a definition of Lender as well as a leasehold mortgagee?]
15. (aa)Parking Garage shall mean
(bb) Penalty Rent shall have the meaning ascribed to such term in Section 3.2 ,
herein. ;
r
16. [Is the definition of "Permit" limited to utilities, or does it also include general
construction, foundation, dredging, filling, landscape, etc. type of permits?]
17. [Does "joint" mean development with the County, or does it mean the
comprehensive development of all the Phases?]
18. . . . tax credit syndication entity', . . .
19. . . including but not limited to a grant by Tenant of the right to develop a specific
Phase of the Project.
20. [The definition of"System" seems to include the Parking Garage; is this intended?]
21. . . . on the date possession of the Demised Premises is delivered to Tenant . . . .
22. Phase I: refurbishment of the Parking Garage to improve the efficiency, aesthetics
and physical condition of the Parking Garage.
23. a minimum of ten (10) and a maximum of.
24. northern and western exterior walls.
25. Received a Certificate of Occupancy within twenty four (24) months after the
Commencement of Construction for that Phase (Scheduled Completion Date).
26. that Phase receives a Certificate of Occupancy.
27. that particular Phase.
28. as evidenced by receipt of a Certificate of Occupancy.
29. [I am not clear about the timing of the payment of participation rent; I think this
provision should state that the rent shall be paid to Landlord within one hundred
eighty (180) days after the end of the first lease year that Participation Rent
becomes due.]
29(a) [There is a 3-month timing issue here that needs to be clarified.]
30. actual gross income for the prior Lease Year,
31. provided, however, that this Section 3.5(a) shall not apply to any lease, license or
right to use any portion of the Demised Premises granted to any entity which
provides social, educational, or other similar services to the residential Space
Lessees of the Demised Premises.
-2-
32. telephone, cable television,
33. and any interest earned thereon;
34. as loan repayments or
35. (and, if applicable, to Sublessee)
36. and at its sole expense
37. (if Sublessee is responsible for the underpayment)
38. (or, if applicable, to Sublessee)
39. regarding the Demised Premises
40. in the event and to the extent
41. pertains to a portion of the
42.
43. Section 3.9. Notwithstanding the above, Landlord shall have no right to receive any
proceeds or other monies arriving out of or pertaining to (a)the transfer, assignment
or sale of any portion of Tenant's interest in the Lease or the Demised Premises to
any entity in which Tenant (or its affiliates, shareholders or partners) holds a
majority interest; (b) the proposed affordable housing development on the Demised
Premises; or (c) the transfer, assignment or sale of any portion of Tenant's interest
in the Lease or the Demised Premises to a limited partnership created to syndicate
affordable or low-income housing tax credits for purposes of financing the
construction of such affordable or low-income housing.
44. or for other or additional uses to which the parties have in good faith agreed, or
which are allowed under applicable zoning laws,
45. [What are comparable buildings and operations and what is the surrounding area?
Is it auto repair shops or Shops of Sunset?]
46. [We need to discuss the four major components of the Project: (i) operation and
rehab of the Parking Garage; (ii) office; (iii) livetwork; and (iv) affordable housing.
We must also describe tax credit limited partnership.]
47. (but not in regard to its status as Landlord and the performance of its contractual
duties hereunder),
48. the Demised Premises or the Project
49. [1 am not sure that this means.]
50. Tenant may request reconsideration of any comments made by MDTA.
51. or request reconsideration of such comments
52. Final Design Plans for each Phase
53. Final Design Plans for a Phase
54. A Schedule of Commencement of Construction at each Phase and the anticipated
Completion Date thereof is set for on Exhibit attached hereto and made a part
hereof
55. substantially similar to its pre-testing condition
56. [This language needs to be tightened up.]
57. extension necessary to perform,
58. The Project itself and
59. are incorporated into or
60. construction of the Project and its use and operation
61. development and construction of the Project and its use and operation of the
Demised Premises,
62. but only upon Landlord's reasonable determination that
63. Any such slowdown or stoppage shall be deemed an Unavoidable Delay and shall
entitle Tenant to appropriate extensions of time.
64. Tenant's obligations hereunder shall be subject to Landlord's express obligation
hereunder to disclose in writing (and accompanied by plats, surveys, legal
descriptions or sketches of surveys to the extent available) the location of all
recorded or unrecorded easements or licenses affecting the Demised Premises,
which disclosure shall be made no later than
65. of developing such plans
66.
-4-
NV
t � ,
67. prior to their becoming delinquent,
68. its fee interest in the Parking Garage or
69. the fee interest in the Parking Garage or
70. Landlord is a necessary party to such proceedings, in which event Landlord shall
participate in such proceedings
71. a condition substantially similar to
72. which are subject to similar uses and restrictions. [what are examples of similar
facilities?]
73. Section 8.3 needs to be discussed in detail; in the event there is an undisclosed
utility easement, Tenant should be entitled to reimbursement by Landlord for the
cost of repair and relocation.
74. operating in the Demised Premises or otherwise
75. at the sole cost and expense of Landlord.
76. [Tenant is responsible for all maintenance and security at the entire site, including
the Station. Tenant will be paid by Landlord for assuming responsibility of
maintenance and security. We need to propose a method or formula for computing
such payment over the long term. These payments can be deducted from rent or
be invoiced to Landlord. The purpose is to provide uniformity of maintenance and
security on the entire site.]
77. rebuilding, alteration, reconstruction or razing,
78. , prorated based on the proportion of the Demised Premises being rebuilt, altered,
reconstructed or razed;
79. [We need to distinguish mortgage loans from other obligations giving rise to liens.
We also need the same latitude regarding the context/dispute/withholding as
Landlord has in Section 12.2.]
80. , and such action does not subject Tenant to any expense or liability.
81. [This language would apply to any person parking in the Parking Garage. Tenant
cannot take the liability for monitoring the entire public. We need to limit Tenant's
obligation to Tenant, and require Tenant to have similar provisions in subleases,
space leases, and contracts, so that only those in privity with Tenant are covered
by this paragraph.]
-5-
82. [Failure to prevent or failure to take steps the County thinks are necessary to
terminate violations of this provision should not be a material breach which would
allow Landlord to terminate the Lease.]
83. [What is a bona fide security area?]
84. ; and (c) with respect to any residential Sublessee or Space Lessee shall comply
with all laws, rules and regulations governing or applicable to the Landlord of
residential premises.
85. [I don't understand Section 15.1 or Section 15.2.]
86. [The standard of"highest and best use" is too high.]
87. [Is this portion of the provision still subject to availability of insurance, so that if no
insurance proceeds are available, Tenant does not have to comply?]
88. [This language and the obligations are too nebulous. Landlord shall be obligated
to repair damage to the extent damage interferes with the operation of the Demised
Premises or jeopardizes the safety of Tenant, Subtenants, and Space Lessees. in
connection with the Lease of air space for the residential property, we need to
discuss substantial obligations on the part of the Landlord.]
89. which in the year of payment shall act to reduce Net Income by a like amount. [But
if rent is abated, how will this work?]
90. except to extent they are subject to Leasehold Mortgages.
91. which is not a result of Tenant's negligence
92. [The obligation to pay rent is abated, so how does this work?]
93. [This provision does not work because all Subleases will be entered into prior to any
construction occurring.]
94. of all or any part of Tenant's interest in the Lease and Demised Premises
95. of such rent or other sums in accordance with the terms and provisions of this
Lease.
96. from transferor and transferee stating the
97. So long as Tenant has been released from any rights and obligations under Lease
pertaining to the assigned portion of the Demised Premises,
-6- .
A*
0
98. , subject to the terms hereof. The amount of
99. without the consent of Landlord.
100. without the consent of Landlord,
101. , unless specifically agreed to in writing by Landlord.
102. with respect to the portion of the Demised Premises subject to such Leasehold
Mortgage(s) or Subleasehold Mortgage(s),
103. Landlord's fee simple interest in
104. the giving of such notice of
105. [I am not sure how this timing works.]
106. [How do sublessees and Subleasehold Mortgagees get notice of the existence of
Leasehold Mortgages?]
107. until the new lease(s) has been executed by all pertinent parties.
108. [Against whom does Landlord have the ability to enforce the lease obligations? I
thought the only way a mortgagee can become a new tenant is to pay/perform
tenant's obligations.]
109. provided, however, that Tenant, or any individual, corporation, general or limited
partnership or other entity holding an equity interest in Tenant, shall be permitted
to be a general partner in any tax credit limited partnership or joint venture relating
to a residential Phase of the Demised Premises, which limited partnership or joint
venture may be a Space Lessee or Sublessee without being deemed a "related
party.
110. subject to the Lease and as if vacant
111. Leasehold Mortgagees and Subleasehold Mortgagees shall be entitled to participate
in any proceedings in connection with a Taking, and to receive directly from the
taking authority any sums to which they are found to be entitled.
112. Upon such termination,
113. [We need to provide for the manner in which Landlord give notice of intent to
purchase the leasehold estate.]
_7.
t.
114. plus the value of Tenant's interest in the unexpired term of the leasehold estate
created pursuant this Lease,
115. [We need to discuss the concept of the County taking the property. If the County
condemns the land and takes possession of it, how can it be awarded any
compensation?]
116. (c) any and all penalties, taxes(including penalties and interest thereon), and other
monies payable to or on behalf of the tax credit limited partners of an affordable
housing Phase of the Demised Premises.
117. or any Sublessee's
118. which prohibited uses include, but are not limited to,
119. the remainder of the Demised
120. [The landlord should be able to terminate the lease only for material defaults and
performance, which need to be specified.]
121. so long as Landlord uses normal and customary commercial practices in attempting
to relet the Demised Premises or any part thereof, and in collecting rent due from
such reletting,
G:1WPG W1352411009Nnsoft
t.
-8-
f_
INDEX
ARTICLE 1 - Premises - Gen - ,s of Tease
Section 1 . 1 Lease of Land
Section 1 .2 Term of Lease
Section 1 . 3 Conditions precedent to Possession of
Land . . . . . . . . . . . . . . . . . . . . . -3-
ARTICLE 2 - Definition of Certain Terms ,
Section 2 . 1 Term Defined , . . . . .. _q_
ARTICLE 3 - Rent -1
m 4_
Section 3 . 1 Minimu R nt , , , , . . . . . . • _i4_
Section 3 .2 Penalty, , , , , . . . . . -15-
Section 3 . 3 Participation R nt . . . . . . . • • • -18-
Section- 3 . 4 Payment of Participation Rent . . . . . .
p -19-
Section 3 . 7 Gross Income , • , • • -20-
Section 3 . 10 Landlo_rd' s Right to Very and.AudLt �
Information Submitted , , , , , , , , , , , -22-
Section 3 . 11 Late Payments , ., , , , , , , . . . -24-
. . . . . . . . -24-
ARTICLE 4 - Development of Land and Constr»c-tion of
Bui l-dings . . . . . . . . . . . . . . . -25-
Section 4 . 1 Land Uses . . . . . , . -25-
Section 4 .2 Develoo_ment Rights and Constrnrti on
Phases . . . . . . . . . . . . . . -26-
Section 4 . 3 Conformity of Plans . . . . . . . _28_
Section 4 . 4 Concept Plan; Preliminary Plans . . -28-
Section 4 . 5 Desian Plans; MDTA Review and ARproval
process . . . . . . . . . . . . . . . -31-
Section 4 . 6 Construction P g . , . , . . , , . . . -33-
Section 4 . 7 Tenant Oblig inns , , . . . , , . . . . -33-
Section . 4 . 8 Facilities to b Constr,�r•ted , , • . -34-
Section 4 . 9 Phase Constr„rtinn , , , , , , , . . . .34-
Section 4 . 10 Progress of Construction , , , . . . . -34-
Section 4 . 11 Unavoidable D ays , , . , . , , . -35-.
Section 4 . 12 Ownership o Improvements . . . . . . . . -36-
Section 4 . 13 Mutual -Covenants of Non-Interference -36-
Section 4 . 14 Connection of Buildings to Utilities -37-
Section 4 . 15 Connection Ri hts , , , , , , , , , . -37-
Section 4 . 16 Off-site -Improvements , . , , , , , . -39-
Section 4 . 17 Art in Project . . . . . . . . . . . . .40-
Section 4 . 18 Signage and Landscaping of Entrances . . -40-
Section 4 . 19 Designation of Landlord' s Representative -40-
ARTICLE 5 - Payment of Taxes Assessment's , , , , -41
Section 5 . 1 Tenant ' s Obliaatinns for Impositions -41-
Section 5 .2 Contesting_Impositions , , , . , . . . . _43_
1
ARTICLE o - Surrend r _ _
Section 6 . 1 Surrender of• D•mised . p em; ses
Section 6. 2 Removal of Personal Property or Fox
Section 6. 3 Righ 5 tO Personal Y�
Prosy After
Terming ion or Su render , , , , , , . . -46-
Section 6 . 4 Survival , , , . . . . , . . . . . . -4,-
ARTICLE 7 - TnAura_nce . . . ,
. . . . . . . . . . . -47-
ARTICLE 8 - ODe_ ration -47-
Section 8 . 1 Control of D mised Premises • • • • • . -47-
Section 8 .2 Non-Interference , . . . • • • • • -48-
Section 8 . 3 Repair and Relocation of U ilities • - - - -49-
Section 8 . 4 Rights to Erect-Signs; Revenues Therefrnm -49-
Section 8 . 5 Landlord' s ia s Upon Demised Premises -51-
ARTICLE 9 - Repairs and Maintenance of he Premises -52-
Section 9 . 1 Tenant Repairs and Maintenance , , , . • -52-
Section 9 . 2, Landlord R 8sairs and Ma intenance -52-
ARTICLE 10 - Compliance with Laws and 0rdinances -53-
Section 10 . 1 Compliant, by Tenant . . . . . . . • .. . . .53-
Section 10. 2 Contest by Tenant . . . . . . -53-
Section 11 . 1 Tenant ' s Right . . . . . . , , . . . . -54-
Section 11 . 2 Landlord' s rnn. erarinn . . . , . . . . -57-
Section 12 . 1 Tenant ' s Duty . . -58-
Section 12 .2 Landlord' s Duty , . . . , , , , , , . . .58-
ARTICLE 13 - Use of p remise . , . , , . -59-
Section 13 . 1 Use cf Demised Pr miss by Tenant -59-
Section 13 .2 Danaercus L quids and Materials -60-
Section 13 . 3 Tenant ' s Duty and Landlord ' s Right of
Enforcement Aaainst Tenant and Si,ccessor and
Ass'-Snee . . . . . . . . . . . . . -61-
Section 13 . 4 Designation of Building a--hy Name . . . -62-
ARTICLE 14 - Entry on Premises- by Landlord . . , . , . . . .62-
Section 14 . 1 Inspection by Landlord of Demised
Premises . . . . . . . . . . . . . . . . .62-
Section 14 .2 Limitations on nspection , . . . . . . .62-
ARTICLE 15 - Liimitation of Liability . . . . . . . -63-
Section 15 . 1 Limitation of Liability, of andlnrd • -63-
Section 15.2 Limitation of Liability, of Tenant -63-
ARTICLE 16 - Damage and D structinn . . . . . . . , . .63-
Section 16. 1 Tenant ' s Duffy to Restore , . . . -63-
Section 16.2 Landlord' s Duty, to Repair and Rebuild
Station . . . . . . . . . -64-
Section 16.3 Interrelationship of Lease Sections -65-
Section 16. 4 Loss Payees of Tenant Maintained '
2
PrODertV TnsUrance
Section 16 . 5 R_ etiairs Affect4ina .St at, on J- ^e - ;
Premises -^6-
Section 16. 6 Abatement of Rent . . .
Section 16.7 Termination of L a fo •ertain
Destruction Oc erring During Last Five Years
of Lease Term
-0
. . . . . . . . . . . . . 7-
ARTICLE 17 - Mortgagors 'Transfers Subleases Transfer of
Tenant ' s Interest New Tease and Lease in
Reverse on -68-
Section 17 . 1 Right to Transfer•Leaseholrj -68-
Section 17 .2 Right to Mort_g,-ae Leaceh-oi d _74_
Section 17 .3 Notice to Landlord Of easehnld •MOrtgaae -76-
Section 17 . 4 Notices to ,eaSPhold and SubleacPhnld
Mo_rtaag ( ) and SllhlesseP /C1 , • . • -77-
Section 17 . 5 Right to Cure D fau t o Tenant -77-
Section 17 . 6 Leasehold in Reversion and Assignment in
Lieu Of ores osurP -83-
Section 17 . 7 Rights to Sublease and Non-Disturbance- to
to
Sublessees and/or Sga e L s een -84-
Section 17 . 8 EstoDD 1 certificates from Landlnrrl -86-
Section 17 . 9 Limited Waiver of Landlord Lien -86-
Section 17 . 10 No suborriination or Mortgaging of
Landlord' s Fee Tit-1p . . . . . . . . . . . . . . . -86-
ARTICLE 18 - Eminent Domain . . , , , . . _87_
Section 18 . 1 Taking-01-Entire Premises , , . . . -87_
Section 18 .2 Proceeds of Taking, . . . . . . .88-
Section 18 . 3 Partial Taking• Termination of Lease -89-
Section 18 . 4 Partial Taking: Contin]iatinn of Lease -90-
Section 18 . 5 Temporary Takin2 . . . , , , , , , , , . _91_
Section 18 . 6 Additional Taking , , , , , , _92_
Section 18 .7 Inverse Condemnation or Other Damages -93-
Section 18 . 8 Taking by Landlord , , , , , , , , . _93_
Section 18 . 9 Involuntary conversion , , , , , . . . . -95-
ARTICLE 19 - Default by Tenant or Landlord , ,
Section 19. 1 Events of Default of Tenant . . . , . , -96-
Section 19.2 Failure to Cure Default_ by Tenant -97-
Section 19.3 Rights of Leasehold Mortgagees.
Suble-ssees and Subjeasehold Mortgagees . • . . . -99-
Section 19. 4 Surrender of Demised premises , . . . . -103-
Section 19.5 Riahts of Landlord After Termination , . -103-
Section 19. 6 No Waiver by Landlord . , . , . . . . -103-
Section 19.7 Event of Default of Landlord , . , . . . -104-
Section 19. 8 Failure to Cure Default_ by Landlord . . -105-
Section 19. 9 No Waiver by Tenant . . . . . . . . . . -106-
.
ARTICLE 20 - Notices . , , , , , . , . -107-
Section 20 . 1 Addresses . . . . , . . -107-
Section 20.2 Method of Tranam tTfEci Notice -108- s
3
� 1 ,
ARTICLE 21 - Quiet Enjoyment , . . . . . . . . . .
Section 2171 Grant of Quiet Enjoyment , , , , , , , .
ARTICLE 22 Certificates by Landlord and Tenant , , . ,
Section 22 . 1 Tenant Certificates , , , , , -109-
Section 22 .2 Landlord Certificates , . . , , , . . . -110-
ARTICLE 23 - Constru .tion of Terms and Miscellaneous
Section 23 . 1 23 . 1 Severabilit , , , , , , , , , . . . • • .
. • -111-
Section 23 .2 Captions . . . . . -111-
•
Section 23 . 3 Relation hip of Parties -112-
Section 23 . 4 Rec _rdinQ . . , . . . . . . . . • • • . -112-
Section 23 . 5 Cons i on . . . . . . . . . . . . . . -112-
Section 23 . 6 Con_ents , , , , , , , , , , , , , • • . .113-
Section 23 . 7 Entire Aareem „t , , , , , , , , , • . • -113-
Section 23 . 8 Successo-r-s and Assians , , , . . , . . . -113-
Section 23 . 9 System Plans . , . . . . . . . . -114-
Section 23 . 10 Holidays • -114-
Section 23 . 11 Exhibits .. .
. . . . . . . . . . . . . -114-
Section 23 .12 Brokers . . . . . . . . . . . . -115-
Section 23 . 13 Protest Payment's , , . . , , . . . . . . -115-
ARTICLE 24 - Revresentations and Warranties , , . , , -117-
Section 24 . 1 Landlord' s Repres�entations and
Warranties . . -117-
Section 24 .2 Tenant ' s Representations and Warranties -119-
ARTICLE 25 - Fig uaL Opportunity , , , , , , , , , , , , , , -120-
ARTICLE 26 - Disadvantaged Business Enterprise ("DBE") . -121-
Section 26 . 1 Po_ lice , , , , , , , , , , , , , , , , , -121-
Section 26. 2 DBE 0 liga t ion , , , , , , , , , , , , , -121-
Section 26. 3 Tenant ' s Plan . . . . . . . . . . . . . _122_
Section 26 . 4 Remedies . . . . . . . . . . . . . . . . -122-
Section 26. 5 Reports , , , , , , , , , , , , , , , , -123-
Section 26. 6 Discrimination Prohibited ed , , , , , , . -123-
V�
4
DRAFT
SOUTH MIAMI METRORAIL LEASE
THIS AGREEMENT OF LEASE, dated as of the day of
199_, made by and between MIAMI-DADE COUNTY, a political
subdivision of the State. of Florida, through Miami-Dade Transit
Agency, having its principal office and place of business at Ninth
Floor, Metro-Miami-Dade Center, 111 N.W. 1st Street, attn:
Director, Metro-Miami-Dade Transit Agency, Miami, Florida 33128
(hereinafter called. "Landlord") , and Hometown Station Ltd. , a
Florida Limited partnership having an office and place of business
at 742 N.W. 12t' Avenue, Miami, Florida 33136 (hereinafter called
"Tenant" ) .
� ITNFIIFTli:
It is hereby mutually covenanted and agreed by and between the
parties hereto that this Lease (hereinafter defined) is made upon
the agreements, terms, covenants and conditions hereinafter set
forth.
ARTICLE 11
?remises - General Terms of Lease
Section 1 . 1 Lease of Land.
. In accordance with (a) Chapter 125, Florida Statutes; (b) the
powers granted to Landlord pursuant to authority properly
delegated by the Florida legislature; (c) the authority to
07/19/99, 9:37AM
10149121
1 `
lease real property belonging to Miami-Dade Coun_y;
the Metrorail Joint Use Policy contained in Resoiutio-:
R-1443A-81, adopted on September 28, 1981; and, for and in
consideration of the rents, covenants and agreements specified
herein, and the easements reserved unto Landlord; its
successors and assigns, Landlord agrees, pursuant to the terms
of this Lease, and shall be deemed, upon Tenant' s compliance
with the terms of Section 1 . 3 below, to have leased and
demised unto Tenant, its successors and assigns, and Tenant
does hereby take and hire, upon and subject 'to the conditions
and limitations herein expressed, the Land described in
Exhibit "A" hereto and defined in Section 2 . 1 (w) together with
"
the air rights, rights-of-way and appurtenances specified
herein and the Parking Garage described in Exhibit "B" hereto
and defined in Section X.X (x) . To have and to hold the same
unto Tenant, its successors and assigns for a term as
hereinafter described.
Section 1 .2 Term of Lease
(a) The term of this Lease shall be ninety (90) years,
commencing on t
Landlord and T.-Ilant
Dec^amher 21 , 2089 The ohl i Qati nn o Dad zA}3
07/19/99, 9: 37AM
10149121
-2- � _
(b) Commencing after the initial term of this lease, as '_ono
0 as the Buildings and Improvements are maintained, Tenant
may extend the original term of this Lease for two (2 )
consecutive additional periods of +iveni J-C)years each
as specified in Section.
Section 1 . 3 Conditions Precedent to Possession of Land
� Q�ern �SPs,
Landlord shall deliver possession of the�^1Si'
to Tenant upon
t .e commencementl ate, and Tenant shall take possession thereof
kt ithin thirty (30) days � all of the
following shall have occurred: Cr -`e- C°`*hfheAkej,neNf balk--
(a) Tenant shall have received written approval from Landlord
of the plans for development of the project as provided
in Section and }��1c�sL �. o4-
(b) Tenant shall have submitted to Landlord:
(i) a copy of a letter of intent that Tenant has
received from a recognized lending institution,
such as any federal, state or municipal
governmental agency or bureau, bank, savings and
loan, pension fund, insurance company, real estate
investment trust, or savings bank (whether local,
national or international) , to finance construction
of the f iMt: ptiase=:of. the `� R ec ; and
(ii) executed performance bonds to guarantee that all
07/20/99, 2 : 44PM
10149121
-3-
y e
Buildings and improvements in s�chphase,,w_:l be
completed within years of the date of
commencement of construction thereof. Performance
bonds for the remaining phases will come due as
they proceed and in accordance with the agreed upon
Phased development plan as described in section
X.X. The amount of such bonds shall be equal to
the construction costs of such Buildings and
improvements in each lase. Ea bond shall name
Landlord as beneficiary thereof and shall be issued
by a surety acceptable to the Landlord.
(c) Tenant shall have submitted to Landlord the payment of
Animum Xent pursuant to Section 3 . 1 (b) .
an
I I
d The date
upon which Landlord delivers possession of the Land to Tenant in
accordance with this Section 1 . 3, by notice in writing, is herein
called "Possession Date" .
ARTICLE 22
Definition of -Certain Terms
Section 2 . 1 Terms Defined
The terms set forth below, when used in this Lease, shall be
defined as follows :
07/19/99, 9: 37AM
10149121
-4- �. -
(a) &M shall mean the Americans with Disabilities Act, as
amended from time to time.
(b) Board shall mean Board of County Commissioners of Miam--
Dade County, Florida.
(c) BOMA standard shall mean the 1996 Standard Method of
Floor Measurement for Office Buildings as published by
the Building Owners and Managers Association
International (BOMA) which shall be used to compute
square footage of all office and retail space . A copy of
s�- 0�.kA
such is attached for ready reference as
Exhibit D.
(d) Building (s) shall mean the buildings or structures (as
the context indicates) together with the improvements
erected on, above or below the Land in accordance with
-��.a�►►+-Lee
Article 4 below, and equipmen and fixtures located
therein which are owned by Tenant (including any
replacements, additions and substitutes thereof) .
(e) Certificate of Occupancy shall mean the certificate
issued by the person or agency authorized to issue such
certificate of occupancy evidencing that the applicable
Building (s) is (are) ready for occupancy in accordance
with applicable Law or Ordinance.
(f) Code shall mean the Code of Miami-Dade County or the Code
07/19/99, 9:37AM
10149121
of the City of South Miami (as the context indicates ) .
(g) Commencement Date shall mean the date of execution by the
last party signing this Lease.
(h) Commencement of onStrt3ction and "commenced" when used in
connection with construction .shall mean the earlier of
the filing of the notice of commencement under Florida
Statutes Section 713 . 13 or the visible start of work on
the site, including on-site utility, excavation or soil
stabilization work. In order to meet the definition of
Commencement of Construction or commenced herein, such
filing of notice or visible start of work must occur
after Tenant has received a building permit for the
( .) Construction Phases shall mean the division , of the
_!Fita 49 the i3arrd 13y enan
into the phases specified in Section 4 . 2 for purposes of
development, construction, and mortgaging of each Phase.
(�'k) Construction Plans shall consist of Final Design Plans as
w'htc:h G�.R2.
approved by MDTA, drawings and sp R a ions in the
format with sufficient detail as required to obtain
building permits for such improvements and as further
describ4d in Section 4 .5.
1
(�C)
Demised—Premises shall mean collectively the Landr and
07/19/99, 9:37AM
10149121
Building (s) , air rights, easements, rights-of-way and all
appurtenances thereto leased to Tenant pursuant hereto.
(1) Develonmenr Rigs shall mean, for purposes of the
Demised Premises and this Lease, the rights granted to
Tenant pursuant to the terms of this Lease.
(m) Event (s) of Defall1t, shall have the meaning ascribed to
such term in Sections 19. 1 and 19.7 herein.
(n) Fair Market Value shall be that sum which, considering
all of the circumstances, would be arrived at by good
faith, fair arm' s length negotiations between an owner
willing to sell and an independent third party purchaser
willing to buy, neither being under any pressure.
(o) Foreclos3lre Purchaser shall have the meaning ascribed to
such term in Section 19. 3 (b) herein.
(p) Gross Income shall have the meaning ascribed to such term
in Section 3 . 7 .
(q) Impositions shall mean all ad valorem taxes, special
assessments, sales taxes and other governmental charges
and assessments levied or assessed with respect to the
l �
Demised Premises
(r) Landlord shall mean, on the Commencement Date, Miami-Dade
County, a political subdivision of the State of Florida,
through Miami-Dade Transit Agency. Thereafter, "Landlord"
07/19/99, 9:37AM
10149121
-7-
shall mean the owner at the time in quest; -.n of
Landlord' s interest in the Demised Premises, so that if
Miami-Dade County or any successor to its interest
hereunder ceases to have any interest in the Demised
Premises or if there is any sale or transfer of
Landlord' s interest in the Demised Premises, the seller
or transferor shall be entirely freed and relieved of
all agreements, covenants,- and obligations of Landlord
hereunder to be performed after the date of such sale or
transfers all such agreements,-
covenants "and- obligations of-Land-lo r 11.0 FULT1111
Nothing hereim. sha- be- construed to
relieve--=Landlord from- any liability-or.- damages arising
from: actions... or omissioccurring or agreements,
covenant&:.and�:�obligations :required:.to--be-performed prior
to the~=-data:.oZ an y suciy aesignment _ transfer. or sale of
Land ord eves -hereunder Notwithstanding the
f .� iami-Dade. County-sha1:1 for the
warranties-of Section 24.1.
(s) Law and Ordinance or Laws or Ordinances shall mean all
present and future applicable laws, ordinances, rules,
regulations, authorizations, orders and requirements of
07/19/99, 9:37AM + '
10149121
-8-
all federal, state, county and municipal governments, the
departments, bureaus or commissions thereof, authorities,
boards or officers, any national or local board of fire
underwriters, or any other body or bodies exercising
similar functions having or acquiring jurisdiction over
. all or any part of the Land or the Buildings thereon.
(t) Lease shall mean this Lease and all amendments,
supplements, addendafrenewals or any lease delivered
pursuant to Article 17 herein, and all amendments,
modifications, extensions, options and renewals thereof.
e
(u) Leasehold Mortgage shall mean a mortgage for mortgages or
other similar security agreementst given to any Leasehold
Mortgagee' of the leasehold interest of Tenant hereunder,
and shall be deemed to include any mortgage or trust
indenture under which this Lease shall have been
encumbered.
(v) Leasehold MortgA.g= shall mean any recognized lending
institution, such as any federal, state or municipal
governmental agency or bureau, bank, savings and loan,
pension fund, insurance company, real estate investment
trust, savings bank, whether local, national or
international, and the holder of any purchase money
mortgage given back to a transferor, that - is- ox becomes
07/19/99, 9: 37AM
10149121
-9- �
the holder, mortgagee or beneficiary under any Lease:^.o��
Mortgage and the successors or assigns of such holder,
mortgagee or beneficiary, and shall be deemed to include
the trustee under any such trust indenture and the
successors or assigns of such trustee .
(w) Lease Year shall mean each separate and consecutive
period of twelve (12) full calendar months beginning upon
the first day of the - first month following the
Commencement Date, and upon each anniversary of such date
thereafter until the expiration of the Lease .
14) (x) Lender shall mean any Leasehold or Subleaseholl
Mortgagee.
(y) Minimum Rent shall have the meaning ascribed to such term .
in Section 3 . 1. herein.
(z) Partici8ation Rent shall have the meaning ascribed to
such term in Section herein.
15 AOO '-4"_ (e6)
(ate) Permit shall mean any permit issued or to be issued by
the appropriate agency or person, including but not
limited to applicable permits for construction,
demolition, installation, alteration,— or repair of
sanitary plumbing, water supply, gas supply, electrical
wiring or equipment, elevator or hoist, HVAC, and the
like.
07/19/99, 9:37AM
10149121
-10- _
(bb) Possession Date shall have the meaning ascribed to such
term rn Section herein.
(cc) Preliminary p ans shall have the meaning ascribed to such
term in .Section
(dd) Project shall mean the overall joint development of Phase
1, 2, and 3 contemplated to be constructed pursuant to
the response by Tenant to the request for proposal for
joint development at the.-South Miami Metrorail Station,
as such development may_ be .amended and/or revised from
time to time.
(ee) Public Areas shall mean those areas of the Demised "
Premises, both enclosed and unenclosed, generally
available and open to the public during normal business
hours .
(ff) Space Lease shall mean a lease (other than this Lease or
a Sublease) , license or other agreement between Tenant
and a. third: party for the use or occupancy of space on or
within the Demised Premises . //
(gg) Space Lessee shall mean the/enant, lessee, or licensee,
its successors or assigns, under a Space Lease.
(hh) Station shall mean the South Miami Metrorail Station of
the System as defined and described in Exhibit "E"
hereto.
07/19/99, 9: 37AM ; .
10149121
(ii) Subleasehold Mortgage shall mean a mortgage or mortgages
or other similar security agreements given to any
Subleasehold Mortgagee encumbering the Subleasehold
interest of a Sublessee hereunder, and shall be deemed to
include any mortgage or trust indenture under which any
Sublease shall have been encumbered.
(jj ) Subleasehold Mortgagee shall mean any recognized lending
institution, such as a bank, federal, state or municipal
governmental agency or bureau, savings and loan, pension
fund, insurance company, savings bank, real estate
investment trust, whether local, national or
1 international, and the holder of any purchase money
mortgage given back to a transferor, under which lender
that is.. or becomes the holder,-mortgagee or beneficiary
under any Subleasehold Mortgage and the successors or
assigns of such holde-rt., mortgagee or beneficiary, and
shall be deemed to include the trustee under any such
trust indenture and the successors or assigns of such
trustee.
(kk) Sublease shall mean any:-instrument, . excluding a Space
�_"_ t`=tort wick alb or any - portion of the
Demised Premises =is[:subleased
Olq
(11) Sublessee shall mean the lessee, its successors or
07/19/99, 9 :37AM ;
10149121
it
�.
-12- - .
assigns under any such Sublease .
(mm) System shall mean the Miami-Dade County Rapid Transit
System including, without limitation, all trains, buses,
fixed guideways, stations, parking lots and parking
�V structures, dropoff/pickup areas, bus stops and shelters,
bus bays, streets and sidewalks, maintenance facilities,
structures and all .associated facilities required in the
operation of the System.
(nn) Taking shall mean the exercise of the power of eminent
domain as described in Article 18 .
(oo) Tenant shall mean, on the Commencement Date, Hometown
Station, Ltd. ("HS") a Florida limited partnership.
. —Thereafter, "Tenant" shall mean the owner
at the time in question of the Tenant 's interest under
this Lease — so that i feHometown Station, Ltd. or any
successor to its interest hereunder ceases to have any
interest in the leasehold estate hereby created, whether
by reason. of assignment, transfer or sale of Tenant ' s
oQ se-I le-Q
interest hereunder, the assigno J er trans eror s all,
subject to the provisions of Section 17 . 1, be released
from and relieved of all agreements, covenants and
obligations of Tenant hereunder to be performed after the
date of such assignment, transfer or sale. Nothing
07/19/99, 9 : 37AM
10149121 ;
-13- `�'•
herein shall be construed to relieve Tenant
liability or damages arising from actions or cmiss.-cns
occurring or agreements, covenants and obligations
required to. be performed prior to the date of any such
assignment, transfer or sale of Tenant ' s interest
hereunder. Notwithstanding the foregoing, Hometown
Station, Ltd. shall remain liable for the representations
and warranties of Section 24 . 2 .
(pp) Unavoidable Delays shall have the meaning ascribed to
such term in Section 4 . 11 herein.
y. - -- sac-11 ,
` .:
4 Q al
(rr) Work of Art shall have the meaning ascribed to such term
in Section herein.
ARTICLE 3
�. 1 Minimum Rent
During the term of this Lease, Tenant shall pay Minimum Rent
of one hundred eighty thousand dollars ($180, 000) per annum.
Said sum shall be payable in �� h `b��
p y payments as set forth in
he Le-It a nk ,rte � o- lie.e -F.A
There shall be due upon le a total
prepayment of Minimum Rent in the a7nt e hu ndred
eighty thousand dollars (5180, 000) .
07/19/99, 9: 37AM
10149121 '
-14- =� .
Section 3. 2 Penalty Rent .
(a) Tenant has proposed a phased construction approach
Gap ]a t�.i--�6 1 A t o gi - p e r- -t-4e s i t e—--a-yo u t inc'
Phase Development of a Commercial/Office building
comprising approximately 60, 000 square
feet or more, depending upon feasibility.
Phase Development of 2 twenty (20) live/work
loft-type combined residential and office
units to be located along the of •
the parking Vrrage, subject to
feasibility analysis .
Phase Development of approximately one hundred
(100) residential apartment units in a
building to be constructed on top of the
existing parking garage rising three
stories from the roof-top grade level,
subject to feasibility analysis and
financing.
Each of the above described phases is hereinafter referred to
as a "Phase." 'If Tenant has not
07/19/99, 9: 37AM
10149121
14eTSFUT, subject to Unavitittable Delays and duly requested ana;
approved changes to the construction schedule, Tenant shall
pay to Landlord as Cenalty �ent the amount of Participation.
��R``ent projected to be paid by Tenant to Landlord — from the
.scheduled completion hate for such Phase untilT
Notwithstanding any of the above, the Tenant is obligated to
fully complete its development of the Project within gi• ;J
years of the Commencement Date.
Landlord may in its sole discretion, collect or waive Tenant 's
obligation to pay fenalty kent, Tenant shall pay penalty rent
pro rata by the fifth day of the month after the Landlord '
ON
notifies Tenant that ienalty 4nt is du and each month
thereafter, until such time as the construction of ? '
is completed according to the construction schedule set forth
'in the Lease Penalty Rent shall be paid in addition to any
other Rent due.
. 3 Participation Rent.
In addition to 4- nimum ent and other rents owed, Tenant
07/19/99, 9 : 37AM
10149121
c
shall pay the Landlord Participation Rent as follo s :
of gross income generated from all commercial retail,
residential, and any other '.J_U e'_5 AR of the Pie .
Tenant has provided Landdlord a schedule of projected
FParticipation =Rent which is attached hereto as Exhibit
makp --,
but failure of Tenant to such levels of Participation
Rent shall not, other than as expressly provided for in
Section 3.21 above, subject. -Tenant to Penalty kent, nor, in
any instance, cause- .Tenant to- be in .default of this Lease.
Section 2 . 4 Payment of Participation Rent
2 . 4 Payment of Participation Rent.
Tenant shall prepare and submit to Landlord a separate
statement of Gross Income for a or each Lease Year,
certified as being accurate by a reputable, independent
gmt - i,ti.h t certified public accountant selected by Tent. ayment of
Participation Rent shall be made to Landlord within ninety
9 (90) days after the end of the first applicable rental period
r Lease Year that Participation Rent is due. Thereafter, the
Participation Rent required hereunder shall be paid on an
estimated basis as follows :
Eppali 00
(i) One-twelfth (1/12) of the=Part o Q tion .Rent or the
i _.: ae sha11 be paid on the
.� .... ..
07/20/99, 2 : 44PM
10149121
-17- 4!1
5th day of each month beginning with the first month of
the applicable Lease Year on account of Participation
Rent ; and
(ii) Ninety (90) days after the end of the then current
Lease Year, there will be an adjustment to the amounts
paid, based on & n calculation of the
and the a
p yment of the difference
shall either be made by the Tenant (if the estimated
payments of Participation-,Rent were less than the
ac,}ua L I ► hat
Participation ent d e) or e a credit to
Tenant deductible against the next ensuing payment^of
Minimum Rent and/or Participating.Rent due under this
Lease ---fn the event the estimated payments of
Participation. Rerrt< were in excess of the
Participation Rent actually du).
Section 3 .7 Gross Income3 .7 Gross Incom ..
"Gross Income" shall mean all monies) paid for the occupancy of
space within the Demised Premises (whether paid to Tenant, to
a Sublessee of Tenant or to a lessor under a Space Lease) , and
shall include but not be limited to:
(a) the fair rental value (determined by comparison with
rent paid by other Tenants for comparable space within
Building) for space within the Building (including
07/20/99, 2 : 44PM
10149121
any parking space) occupied by Tenant, or by any
person, firm or corporation affiliated with Tenant, or
any of its partners that exceeds 5 percent of the
rentable space in tAr Buildings and with respect to
miz
which no rent or less than fair Ael value rent is
otherwise paid to Tenant or any Sublesse
(b) any rents or fees received by virtue of the rights
described in Section 8 . 4 below-;;
(c) any monies_ realized in.lieu, o€&:rents pursuant to .claims
asserted under-any business interruption insurance or
excess property insurance as described in Section —
• and —
(d) any compensation derived for connection rights .
Gross Income shall not include: 2 1
W the cost of sewer, water, electricity,.) any other
charge foil utilities,.:coa.ppa.-area maintenance charges-,
Tenant's.:assac n)rr.'due ,: ;-Usurance-contributions or
othes � rnsiti�o �uppiiW Sublesseeii or Space
Lessees to an4 utility company, _governtiental
-al niarageme company or ..Tenant,_. provided
such charge
• _ -_�a��;•,expense�:: for- the
ands n"a- er_�"ra�_+a o T"
3 rwa r emb u r si 'e n a n t
07/20/99, 2 :44PM
10149121 + '
-19-
for such expenses incurred by it;
any tax, excise or other charge levied by any
governmental authority which is collected either
directly by such authority or by Tenant from a
Sublessee or Space Lessee, and remitted to such
3
authority either directly or by Tenant;
(iii) security deposits
(iv) payments made to Tenant by an insurer or by a Space
Lessee or Sublessee for Cat by::_=losses: or damages
sustainers to the Demised Premises (to the extent such
payments are used by Tenant to repair 'or restore the
premises) ;
(v) any monies received by Tenant which it is under a good
faith, legal or contractual obligation to return or pale
� ff — _
7 to a th = as ¢ ideiect forgo goods
T a
suppiiectce�:.;tbF�c: and which is not in lieu of
rent .
vi) _
Space-: Zessees as a
a`tom costs of the
;btcupted-by
any.:.Sls � a�ce� S .
07/19/99, 9: 37AM
10149121
-20- _
(vii) any monies received by Tenant for the sale, assignment
or transfer of its rights hereunder.
Section 3 . 10 Landlord ' s Right verify and Audit info -matio
Submitted.
3 . 10 Landlord' s Right to Verify and Audit Information Submitted .
Landlord may, during normal business hours and upon ten
�5 (10) days written notice T
to enant inspect, take
extracts from and make copies of Tenant ' s (or, if
applicable, Sublessees) books and records pertaining
to the Demised Premises for the purpose of verifying
any statement submitted to Landlord 03 � s required by this
Lease. Landlord may, at its option conduct or cause
to be conducted an audit to verify the Gross Income
received by Tenant (or any Sublessee) from the
operation of the Demised Premises for any _-
Lease Year or to verify any payments or rents under
this Lease. If Landlord's audit shall disclose that an
amount is due to Landlord in excess of the amount
Tenant (or any Sublessee) had previously or should have
paid to Landlord for such Lease Year, then such amount,
together with any late charge required by sSection
07/20/99, 2 :44PM
10149121
-21- �t�
3 . 11, shall be paid by Tenant (or Sublesse within ten
37
(10) days after receipt by Tenant (or Sublessee of a
written notice from Landlord setting forth the amount
due and the calculations used in making the
determination. If the amount due Landlord under the
i
preceding sentence (excluding any late charge) exceeds
the amount Tenant (or Sublessee) had previously or
should have paid to Landlord for such Lease Year byt=
or more percent, they cost of such audit shall be at
Tenant ' s (or Sublessees) expense. If Landlord' s audit
shall disclose that Landlord has been overpaid for such
emiend r Lease Year, Landlord shall credit such
overpayment to the next payment or payments required to
o be paid by Tenant under the terms of this Lease.
, Tenant ' s books and records shall be maintained in
Miami-Dade County, Florida. All of Sublessees ' books
and records pertaining to income received from the
Demised Premises shall be maintained in Miami-Dade
County, Florida, unless Landlord in its sole discretion
consents in writing to a change. Landlord' s right to
audit shall continue for a period of three (3) years
after submittal of any statement or report by Tenant
(or Sublessee) .
07/19/99, 9:37AM
t .
10149121
-22- �.
7
3 ..1-1 ?ate Payments . In the event that any payment of Minimum
Rent, Penalty Rent, Participation Rent, or payments under Sections
or due Landlord shall remain —unpaid for a period of
twenty (20) days beyond their due date, a late charge of five
percent (5%) of the amount of such payment shall be added to such
delinquent payment. In addition to the rights and remedies provided
for herein, Landlord shall also have all rights and remedies
afforded by law for enforcement and collection of rent and any late
charges which are not inconsistent with the limitations or remedies
contained in this Lease. All rent and other payments due Landlord
under this Lease shall be paid to Landlord at the address specified
herein for notice to Landlord..
07/19/99, 9:37AM
10149121
-23- it _
Section 3 . ill Payment Where Tenant Sells . Ass ans or j'ransfe:s
Ownership-Section 3 . 12 Payment Where Tenant Sells , Assigns cr
Transfers of Own �sh; 2. ��� - �0C C c1�. : II
S
In the event Tenant sells, assigns or transfer owne hip,
r
Tenant shall pay Landlord�`-cn— percent of wh tever _
v , Tenant receives� fier such sale, assignment or transfer of
�emised remises
^ t
transfer is of an undeveloped pr mise, Tenan
hall pay La fifty cent of wh tever Moin s
tra
Tenant shall pay Landlord' s share of any
5""Wev within thirty (30) days of Tenant ' s receipt of same.
The payments -to Landlord under this section shall be in
addition to and with no offsets for any other rents or
payments to which Landlord is entitled under any other
provisions of this Lease.
ARTICLE 44
Develo8ment of Land and Construction of Buildings
Section 4 . 1 Land Uses4 . 1 Land Uses .
(a) Tenant and Landlord agree, for themselves and their
successors and assigns, to devote the Demised Premises
to the uses specified in this Leas nd to be bound by
07/20/99, 2 : 44PM
10149121 .
-24-
and comply with all of the provisions and condit_ons of
this Lease.
(b) The parties recognize and acknowledge that the manner
in which the Demised Premises and Buildings are
developed, used and operated are matters of critical-
importance to Landlord and to the general welfare of
the community. Tenant agrees that at all times during
the term of this Lease, Tenant will use efforts to
a development on the
Demised Premises which^enhances ,the ridership and usage
Ij
of the System creates strong access links between the
►r Is e�� -fRe mtseS n �u:)
�aee�ect and the System and which creates a mixed use
A
retail/residential center with a quality of character
and operation consistent with that of comparable
T� buildings and operations in the surrounding area.
(c) Tenant shall establish such reasonable rules and
regulations governing the use and operation by Space
Lessees of their premises as Tenant shall deem
necessary or desirable in order to assure the level or
7°kem,srs
quality and character of operation of they .use
.required herein; and Tenant will use reasonable efforts
to enforce such rules and regulations .
Section 4 .2 Development Rights and Construction Phases
07/19/99, 9 : 37AM
10149121
-25- a. .
4 .2 Develo;ment Rightg and Construction phases .
Tenant shall have the right to develop the Land (and to
construct the Buildings required in connection. with such
development) subject to the terms and conditions of this Lease
O-A
A to the densities and uses described in subsections (a) or (b)
below:
(a) Development R ' �of Land.
(nee to be added)
(b) Miami-Dade--County' s r ah G as sovereian.
It is expressly understood that notwithstanding any
provision of this Lease and Miami-Dade County' s status
as Landlord thereunder:
(i) Miami-Dade County retains all of its sovereign
OLF erogatives and rights as a county under
lor laws and shall in no way be estopped
from withholding or refusing to, issue any
approvals of applications for building zoning
(�
�rAe_ �Gl Sr A� t�anning or regulatory duties and authority -to_
4 MN 9L WP4development under present or future Laws and
of whatever nature applicable to the
design, construction and development of the
07/19/99, 9: 37AM
10149121
-26-
and improvements provided for in this
Lease; and
Miami-Dade County shall not by virtue of this
Lease be obligated to grant Tenant any approvals '
of applications for building, zoning, planning
or development under present or future Laws and
Ordinances of whatever nature applicable to the
design, construction and development of the
T. �ce
and improvements provided for in this
Lease.
Section 4 . 3 Conformity of 1AnS4 . 3 Conformity of Plans .
Preliminary Plans and Construction Plans and all work by
.Tenant with respect to the Demised Premises and to Tenant ' s
construction of Buildings thereon shall be in conformity with
this Lease, applicable building codes, and all other
applicable federal, state, county and local laws and
regulations, including applicable provisions of the Fire Life
Safety Criteria found in the Metrorail Compendium of Design
Criteria, Volume 1, Chapter 9.
Sec- ok4 1. E)v h,e Q rs 1P '. .3
Section 4 . 5 Design Plans ' MDTA Review and Agg oval Pro
4 . 5 Design Plans ; MDTA Review- and Approval Process
07/19/99, 9 :37AM
10149121 ? '
-27-
n,
(a) Tenant shall submit design and constru_ction dozuents
to MDTA for review, coordination and approval ' a-���_
n
of the eroj e ct . For each submittal,
Tenant .shall submit eight sets of prints with the date
noted on each print.
(b) At 15% of the overall design completion of the Project,
or any Phase thereof, Tenant shall submit conceptual
G� site layouts and plans, sections, and elevations to
MDTA for review. At this stage, Tenant shall have
(based the conceptual layouts in conformity with
applicable building codes, federal, state, county and
local laws and regulations, including applicable
provisions of the Metrora; l ComAendium of Design
Criteria ,
(c) At 85% design completion of the project, or any Phase
thereof, Tenant shall submit drawings and pertinent
documentation to MDTA for review. conceptual site
layouts and plans, sections, and elevations to MDTA for
review.
(d) At 100% design completion of the Project, or any Phase
thereof, Tenant shall submit to MDTA the Final Design
Plans . MDTA shall review these plans to ensure that
07/19/99, 9 : 37AM
10149121
-28- �,!'
• t i
r
all previous MDTA comments have been incorporated
5� therein.
(e) Upon receipt of each of the above-mentioned submittals,
MDTA shall review same and shall, within thirty (30)
business days after receipt thereof, advise Tenant in
writing of its approval or disapproval, setting forth
in detail its reasons for any disapproval . In the
event of a disapproval, Tenant shall, within thirty
(30) days after the date Tenant receives such
disapproval, make those changes necessary to meet MDTA
5�
stated grounds for disapproval and shall resubmit such
altered plans to MDTA. Any resubmission shall be
subject- to review and approval by MDTA, in accordance
with the procedure hereinabove provided for an original
submission, until the same shall receive final approval
by MDTA. MDTA and Tenant shall. in good faith attempt
to resolve any disputes concerning the Plans .
f) Upon the approval of the 100 comp�l,eted design, such
design shall be the construe .ion'p ns�� In the event
any change occurs after approval of the i88% e
53 Tenant must resubmit plans for MDTA' s
approval.
Section 4 . 6 Constr uc-t on P anG4 . 6 Constr"ation Plans .
07/19/99, 9: 37AM
10149121 ;
-29- '�.
e-ac� has
TenanFsh l give Landlord f- al site and eleva-_:n plans
prior mittal for the building permits All Construct-,
Plans e in conformity with the^Design Plans approved by
MDTA and the Lease.
Section 4 . 7 Tenant Obl ; ga ions
4 . 7 Tenant Obliaat; onnq
MDTA approval of any concept plans, pursuant to this Article
4 shall not relieve Tenant of its obligations under law to
file such plans with any department of the County or any other
governmental authority having jurisdiction over the issuance
of building or other Permits and to take such steps as are
necessary to obtain issuance of such Permits . Landlord agrees
to cooperate with Tenant in connection with the obtaining of
such approvals and Permits. Tenant acknowledges that any
LuNd 1 oQ c I
approval given by MDTA pursuant to this Article 4 shall not
constitute an opinion or agreement by MDTA that the plans are
structurally sufficient or in compliance with any Laws,— or
Ordinances, codes or other applicable regulations, and no such
approval shall impose any liability upon MDTA. Tenant shall
include a provision in each Leasehold Mortgage (or
Subleasehold Mortgage) which + , d vest MDTA with all right,
title and interest in the Construction Plans and
07/19/99, 9 : 37AM
10149121
-30- 1%Ai -
specifications for the--''4���-tt Phase financed thereby,
should an Event of Default occur, and the affected Lease:-o13
Mortgagee (or Subleasehold Mortgagee.) does not elect to
construct and complete the Buildings of such Phase.
Section 4 . 8 Facilir; es t0 be Conet-ucted
4 . 8 Facilities to b onstructed
Landlord shall not be responsible for any costs or expenses of
construction of the
Section 4 . 9 Phase Constructing
4 .
Section 4 . 10 PrOC7ress of onstructinn4 . 10 Progress of
Construction.
[Note: Provision allowing due diligence may need to be
added. ] Subsequent to the �elXivery of Poss�`ession of the Demised
Premises to Tenant, Tenant shall submit monthly reports to MDTA of
the progress of Tenant with respect to .etl development and
cons ruc ion Tenant, by executing this Agreement, represents it
has visited the site, is familiar with local conditions under which
the construction and ae%jo i-Awf"
is to be performed, will perform all
test borings and subsurface engineering generally required at the
site under sound and prudent engineering practices, and will
07/19/99, 9:37AM
10149121
-31- N.
correlate the results of the test borings and subsurface
engineering and other available studies and its observations wit,
(r rKeA
the requirements of the construction and cYr vie ,
of the
Buildings . Tenant shall restore the site to i-e--T w
-�a-�rr�nconditior. S•5
after all testing, and shall provide the Landlord with a copy of
all ^results . The Landlord makes no warranty as to soil and
subsurface conditions . Tenant shall not be entitled to any
adjustment of rental payments or of any applicable time frame or
deadline under this Lease in the event of any abnormal subsurface
Oconditions unless the subsurface conditions are so unusual that
they could not have reasonably been anticipated, and in such eventf
time periods and the commencement .of',•penalty rent shall be extended
by the reasonable . time necessary to accommodate redesign and
lengthened construction schedules resulting from that event.
Section 4 . 11 Unavoidable D 1av�
4 . 11 Unavoidable D lays,
"Unavoidable Delays" are delays beyond the control of a party
required to perform, such as (but not limited to) delays due
to strikes; acts of God; floods; fires; any act, neglect or
�6aI�'0 failure to perform of or by the other party; enemy action;
civil disturbance; sabotage; restraint by court or public
authority; litigation or administrative challenges by third
parties to the execution of this Lease or the procedures
07/19/99, 9:37AM ,
10149121
-32-
I
leading to its execution; or Mmoratoriums . The o iiga*_ed
party shall be entitled to an extension of time
inability to .meet a time frame or deadline specified in this
Lease where such inability is caused by an Unavoidable Delay,
provided that such party shall, within fifteen (15) days after
it has become aware of such Unavoidable Delay, give notice to .
44 A other party in writing of the causes thereof and~the�rti e��
7� thell kTIO Neither party shall be liable for
loss or damage or deemed to be in default hereof due to any
such Unavoidable Delay (s) , provided that party has notified
the other as specified in the preceding sentence and further
provided that such Unavoidable Delay did not result from the
fault, negligence or failure to act of the party claiming the
delay.
Section 4 . 12 Own--�hl Cf ImDrovemcnts
. 12 Ownership—of m rcvemont
8 �
^ 11 improvements and all mate ial an equipment provided by
Tenant or on its behalf which become part of the Project
(excepting all of the System facilities) shall, upon being
added thereto or incorporated therein,
be and remain the property of Tenant, but subject to the same
(not including personal property of Tenant, SublesseeS,,,,or Space
Lessees) becoming the property of Landlord at the expiration
07/19/99, 9 : 37AM
10149121
-33- ti•
or termination of this Lease .
Section 4 . 13 Mutual venan 5 of *Ion Interference
4 . 13 T
Tenant ' s development and
shahDemised Premises x�r
"of-'
A materially and adversely interfere with Landlord' s
constructio or operation of the System, unless prior
arrangements have been made in writing between Landlord and
Tenant. Conversely, Landlord' s use of the Station area al
not materially and adversely interfere with Tenant ' s
-a7li L d1 n'JC AnA 4;;a ,,,,
.,,.=er....ants y.�... eal �_ eree, unless
prior arrangements have been made in writing between Landlord
and Tenant. Landlord may at any time during the term of this
i
Lease, stop or slow down construction by Tenant, when the
a�
safety of the System, or^the users of the System or of any
employees, agents, licensees and permittees of Landlord is
jeopardized. 9
Section 4 . 14 Connection of B 1i d macs to Utilities
4 . 14 Connection of Buildings to ilitiPS .
Tenant, at its sole cost and expense, will install or cause to
be installed all necessary connections between the Buildings
constructed or erected by it on the Land and the water,
sanitary and storm drain mains and mechanical and electrical
07/19/99, 9 : 37AM
10149121 r
-34-
conduits and other utilities, whether or not c wed �y
Landlord. Tenant shall pay for the additional cost, if any,
l of('locati g and installing new facilities for sewer, water,
electrical, and of utilities as needed to service the
Demised Premises .
Section 4 . 15 Connection Ri hts4 . 15 Connection Rigs.
Landlord hereby grants to Tenant, for a period — 4?0 years
from the Commencement Date, - the non-exclusive right to
construct^connections above grade to the Station and Demised
Premises subject to the right only of Landlord to construct
above or below grade connections between the Station and an#
land or facilities, excluding the Project, owned or operateM
by Landlord or another governmental agency or entity.
Section 4 . 16 Off-s; Imprnvemcntc I e
4 . 16 Off-site TmD v mPnta , OR CDA)�
Any off-site improvement required to be paid or contribu e
as a result of the devel pment of the System shall be paid by
Landlord. Any off-site improvements required to be paid or
contributed as a result f Tenant ' s •development of the Demised
Premises shall be paid by Tenant .
Section 4 . 17 Art in Project
4 . 17 Art in Project ,
07/19/99, 9 : 37AM
10149121
-35- �
Tenant shall at its sole cost expend one and one-half. De=cent
(1 . 5%) of the cumulative construction cost for acquisition:
Works of Art for and placement of same in the Public Areas of
the Demised Premises . The term "Works of Art" as utilized in
the preceding sentence shall mean landscaping, plazas,
walkways, fountains, tile, courtyards, terraces, walkways,
roof gardens, passive and active recreational areas, murals,
special graphic presentations, amphitheaters, entertainment
areas, gazebos, water features, improvements to the canal
frontage, other similar decorative features and facilities,
and works of art.
Section 4 . 18 Signage and Landscaping of Entrances
4 . 18 Si_ i g,nnage and anriscapina of Entrances .
Landlord agrees to cooperate with Tenant in the development of
plans regarding entrances to the Demised Premises in order to
/ achieve an aesthetic blend of landscaping and signage. All
(p costs shall be paid by Tenant.
Section 4 . 19 Designation of LandinrHis Representative
4 . 19 Designation of .andlord ' s R grecentativ-e
The County Manager or his designee shall have the power,
authority and right, on behalf of the Landlord, in its
capacity as Landlord hereunder, and without any further
resolution or action of the County Commission, to:
07/20/99, 2 : 4APM
10149121
-36-
(a) review and approve documents, plans, appli---atic;;s,
lease assignments and requests required or allcwed -y
Tenant to be submitted to Landlord pursuant to this
Article and this Lease; e-nd
(b) consent to actions, events, and undertakings by Tenant
for which consent is required by Landlord;
(c) make appointments of individuals or entities required
to be appointed or designated by Landlord in this
Lease;
(d) execute non-disturbance .agreements and issue estoppel
statements as provided elsewhere in this Lease; •-
(e) execute any and all documents on behalf of Landlord
necessary or convenient to the foregoing approvals,
consents, and appointments; and
(f) execute on behalf of Miami-Dade County any and all
consents, agreements, easements, applications or other
documents, needed to comply with applicable regulatory
procedures and secure permits or other approvals needed
to accomplish the construction of any and all
improvements in the Demised Premises.
ARTICLE 5
Payment of Taxes, A cASSmenta
Section 5 . 1 Tenant Obligations fnr Tmpositinnc
07/19/99, 9 :37AM
10149121
5 . 1 Tenant ' s Oht ; r,n*; ,.. for T
P'1p0S; tjnnc 7�
Tenant shall pay or cause to be aid '
all impositions,
including, but not limited to, special assessment taxes, ad
valorem taxes, and sales taxes, assessed on the Lease,
Buildings, improvements, and Land which at any time during the
term of this Lease have been, or which may become a lien on,
the Demised Premises or any part thereof, or any appurtenance
thereto, provided, however, that :
(a) If, by law, any Imposition (for which Tenant is liable
hereunder) may, at the option of Landlord or Tenant be
paid in installments (whether or not interest shall
accrue on the unpaid balance of such Imposition) ,
Tenant may exercise the option to pay the same,
including any accrued interest on the unpaid balance of
such Imposition, in installments and, in such event,
shall pay such installments as may become due during
the term of this Lease; (and providm* further, that
those installments which are to become due and payable
after the expiration of the term of this Lease, but
relating to a fiscal period 0--fully included in the
term of this Lease, shall be paid in full by Tenant) ;
and
07/19/99, 9 : 37AM
.10149121
-38-
(b) Any Imposition for which Tenant is liable hereunder
relating to a fiscal period, a part of which period is
included within the term of this Lease and a part of
which is included in a period of time after the
expiration of the term of this Lease, shall be adjusted
between Landlord and Tenant as of the expiration of the
term of this Lease so that Tenant shall pay only that
portion of such Imposition which is applicable to the
period of time prior to expiration of the term of this
Lease, and Landlord, if so obligated, shall pay the
remainder thereof
(c) Any Imposition relating to the period prior to the
Commencement Date shall be the sole responsibility and
obligation of Landlord and "4 va/oRem I
F(d) if Landlord transfers the Land, and by v rtue of such
transfer t he]LXna becomM-Tubject to taxes, or if
\ prior to such..transferthe_.Land_ had become subject to
ad valorem-taxes-p, -.them from and. after such-transfer the
nes, o�ariof. the:.:Laad-t*.and' not-:Tenant, shall be liable
� .sia1:I pay. such taxes-:
Section 5 .2 Contesting Impositinns
5 .2 Contesting Tmpngitions .
(a) Tenant, shall have the right to contest the amount or
07/19/99, 9 :37AM
10149121
Jk
-39- ��
validity, in whole or in part, of any I:nposit_on, f:,-=
which Tenant is or is claimed to be liable, by
appropriate proceedings diligently conducted in good
faith but only after payment of such Imposition, unless
such payment or payment thereof under protest would:
(i) Operate as a bar to such contest; or,
(ii) Interfere materially with the prosecution
thereof, in which event, notwithstanding the
provisions of Sections 5 . 1 and 5 .2 herein,
Tenant may postpone or defer payment of such
Imposition if:
(trA) Neither the Demised Premises nor any part
thereof would by reason of such ,
postponement or deferment be in danger of
being forfeited or lost; trr
(b-H) enant shall have deposited, with
reco ized financial ins ' ution,
security the amount s contested and
10 unpaid, toget w' all interest and
penalties in nnec n therewith and all
charge that may or mi t be assessed
a inst or become a charge on a Demised
Premises or any part thereof in such
07/19/99, 9 : 37AM
10149121
-40- .
F
,- •.•tarsi_. ____ ,c. —.
(C) Upon the termination of any such
proceedings, Tenant shall pay the amount
Of such Imposition or part thereof, if
any, as finally determined in such
Proceedings, together with any costs,
fees, including counsel fees, interest,
penalties and any other liability in
connection therewith.
(b) Landlord shall not be required to join in any
Proceedings referred to in this Section 5 .2 unless the
Provisions of any law, rule or regulation at the time
in effect shall
require that
at Tenant' s cost.
ARTICLE 6
Surrender
Section 6. 1 Surrender of Demi ed r-emiseg
6 . 1 Surrender of nemiged em; ae-A
Tenant, on the last day of the term hereof, subject to
Tenant,i' = gt .to extend such term; or upon any earlier
termination of this Leasejshall surrender and deliver up the
Demised Premises to the possession and use of Landlord with
07/19/99, 9 :37AM
10149121
-41-
delay and, subject to the provisions of Article 16 herein,
good condition and repair, reasonable wear and tear, acts of
God, and casualties excepted.
Section 6 .2 Removal—of Perannal Property or Fix >>rac
6. 2 Removal of Perannal Prnnerty cr Fixtures .
Where furnished by or at the expense of Tenant, Sublessee, or
any Space Lessee, or secured by a lien held by either the
owner or a lender financing same, signs, furniture, ••
furnishings, movable trade fixtures, business equipment and
alterations and/or other similar items may be removed by
Tenant, or, if approved by Tenant, by such Sublessee, Space
Lessee or lien holder at, or prior to, the termination or
expiration of this Lease; provided however, that . if the
removal thereof will damage the Building or necessitate
changes in or repairs to the Building, Tenant shall repair or
restore (or cause to be repaired or restored) the Building to
f its condition immediately preceding the removal of such
furniture, furnishings, movable trade fixtures and business
equipment, or pay or cause to be paid to Landlord the cost of
repairing any damage arising from such removal.
ReasoM CL6 !e_
07/19/99, 9: 37AM
10149121
-42- 'tip
Section 6. 3 Riahts to P r4nnal Prn — After *+
Surren.der6. 3 Rights to P rannal Ornp€:jY f ar T
A t e ,n .
Surrender .
Any personal property of Tenant, Sublessee, or any Space
. Lessee which shall remain in the Building after the fifteenth
(15th) day following aft the termination or expiration of
this Lease (or if later any Sublease or Space Lease)) and the
removal of Tenant, Sublessee or any Space Lessee, as the case
may be, from the Building, may, at the option of Landlord, be
deemed to have been abandoned by Tenant, Sublessee or any
Space Lessee, and, unless any interest therein is claimed by
a Leasehold Mortgagee or Subleasehold Mortgagee, said personal
property may be retained by Landlord as its property or be
disposed of, without accountability, in such manner as
Landlord may see fit.
Section 6 . 4 Surviv_A6. 4
The provisions of this Article -6 shall survive any termination
or expiration of this Lease.
ARTICLE 77
Insuran P
Landlord and Tenant hereby agree that the terms and provisions
governing the insurance required pursuant to this Lease are
contained in Exhibit "H" hereto, which is incorporated
07/19/99, 9:37AM
10149121 ;
-43-
herein by reference .
ARTICLE 88
Oiler_ a_tion
Section 8 . 1 Control of D mised Premiq aa
8 . 1 Control
of D m; sPd pr miSPc
Landlord hereby agrees that, subject to any limitations
imposed by the terms of this Lease, Tenant_ shall be free to
perform and exercise its rights under this Lease and shall
have exclusive control and authority to direct, operate, lease
and manage the Demised Premises . Tenant is hereby granted the
S
exclusive right to enter int a n 'e Space Lease, license or
similar grant for any part or all of the Demised Premises .
Tenant covenants and agrees to continuously operate the
Demised Premises consistent with prudent business practices
that the Cremes Income generated by the Demised
Premises mss- compar le to that generated in similar
facilities
Section 8 .2 Mon- ntarfpranro
88 .2 Ion-In erferenne
Landlord and Tenant hereby mutually agree not to interfere
with the free flow of pedestrian or vehicular traffic to and
from the Buildings and to and from the Station. They further
07/19/99, 9:37AM
10149121
-44- :��.
agree that, except for those structures reasonably necessary
for security and safety purposes, no fence, or any other
structure of any kind (except as may be specifically permitted
or maintained under the provisions of this Lease, indicated on
approved Construction Plans or otherwise mutually agreed upon
in writing) shall be placed, kept, permitted or maintained in
such fashion as to materially or adversely interfere with
pedestrian or vehicular traffic to and from the tsed andJ
to and from the Station. The foregoing shall not prohibit
Tenant from closing the Buildings and denying access to the
public at such times and in such manner as deemed necessary by
Tenant during the development or construction of any portion
of the Buildings, the repair and maintenance of the Demised
Premises or during the operation of the Demised Premises,
provided such closing does not materially and adversely
.interfere with +A P c,S RG1l,S0Na.61�
(i) access to the Station, or
Clma Qy (ii) Landlord' s stem unless operation of the S
JJ Y
Tenant obtains Landlord's prior written consent.
Section 8 .3 Repair and Relocation of Utilit iPC8 , 3 Repair and
Relocation Of 1t i 1 i t•i ea
n Landlord and Tenant hereby agree to maintain and repair, and
' , 1 each party is given the right to replace, relocate, and
07/19/99, 9 :37AM
10149121
-45- �. -
remove, as necessary, utility facilities within =he :and
required for the operation of the Buildings or of the System,
provided:
(a) Such activity does not materially or adversely interfere
with the other party' s operations;
. (b) All costs of such activities are promptly paid by the
party causing such activity to be undertaken;
(c) Each utility facilities and the . Demised Premises are
thereafter restored to their former state; and
(c) Each complies with the provisions of all Permits and
licenses which have been issued and are affected by
such repair and relocation.
Section 8 . 4 Rights to Erect Signs : Reven>>es Therefrom
8 . 4 Rights to Erect Signs : Revenues Therefrom.
(a) Landlord hereby agrees that Tenant, to the extent
permitted by law and FS—ubject to Landlord' s prior
Zapproval (which shall not be unreasonably withheld or
delayedk shall have the exclusive right, during the
term of this Lease, to place, erect, maintain and
operate, or cause, allow and control the placement,
erection, maintenance and operation of any signs or
advertisements in accordance with subparagraph (b)
below, in or on the Demised Premises. Tenant shall be
07/19/99, 9 : 37AM .
10149121 ;
-46-
responsible for obtaining any and all Permits and
licenses which may be required from time to time by any
governmental authority for such signs and
advertisements, and Landlord agrees to execute any
consents reasonably necessary or required by any
governmental authority as part of Tenant ' s application
for such Permits or licenses .
(b) The following types of signs and advertising shall be
allowed in the area described in subparagraph (a)
above:
(i) Signs or advertisements identifying the Buildings
and improvements to the Demised Premises and in
particular office, hotel, residential, , retail,
and commercial uses therein;
(ii) Signs or advertisements offering all or any
portion of the Demised Premises for sale or
rent; and
(iii) Signs or advertisements advertising or
RL(
identifying 11 lI an y product, com p an y O
rvice,
related to the Demised Premises .
(c) Tenant shall have the right to remove any signs which,
from time to time, may have become obsolete, unfit for
use or which are no longer useful, necessary or
07/19/99, 9: 37AM
10149121
-47- AV
Profitable in the conduct of Tenant ' s business, or
the occupancy and enjoyment of the Demised Premises by
Tenant, or any Sublessees or Space Lessees .
(d) As used in this Lease, "sign (s) " shall be deemed to
include any display of . characters, letters,
illustrations, logos or any ornamentation designed or
used as an advertisement or to indicate direction,
irrespective of whether the same be temporary or
Permanent, electrical, illuminated, stationary or
otherwise . ( b�f- N p f- P,ea -Qe 1
J
(e) Tenant shall be entitled to rent or collect a fee for ..
the display or erection of signs and advertisements,
provided, however that such rent or fees, if any, shall
be a part of Gee&e Income for purposes of this Lease.
Section 8 . 5 Landlord igns non Demised remises
8 . 5 Landlord' -Rirtns non D mised Premises -
System-wide informational graphics shall be allowed to be
placed within the Demised Premises at locations and in sizes
mutually agreed upon by Landlord and Tenant 55
ARTICLE 99
Repairs and Maintenance of th-e- Premisps
Section 9. 1 Tenant Repairs and MaintenancP9. 1 Tenant Repairs and
07/19/99, 9:37AM
10149121
-48- #4
Maintenan
Throughout the term of this Lease, Tenant, at its sole cosy
and expense, shall keep the Demised Premises in good order and
condition, and make all necessary repairs thereto. The term
"repairs shall include all replacements, renewals,.
alterations, additions and betterments deemed necessary by
Tenant. All repai s made by Tenant shall be at least
ity and class to the original work, ordinary
wear and tear and loss by fire or other casualty excepted.
Tenant shall keep and maintain all portions of the Demised
Premises and all connections created by Tenant under Section
4 . 15 above in a clean and orderly condition, Afree Hof dirt,
A
rubbish, graffiti, and unlawful obstructions . Landlord, at
its option, and after thirty (30) days written notice to
Tenant, may perform any maintenance or repairs required of
Tenant hereunder which have not been performed by Tenant
following the notice described above, and may seek reasonable
cost and expenses thereof from Tenant.
Sectio
9.2 Landlord R Dairs and MaintPnanro
! b
9.
Landlord shall keep and maintain in good condition and repair
the Station, (and its site and any other improvement
07/19/99, 9:37AM
10149121
-49- _
. constructed thereon) , and sh 11 maintain said premises jLn a
clean and orderly condition, free of dirt, rubbish, graf:it:
and unlawful obstructions . The term "repairs" shall include
all replacements, alterations, additions and betterments
deemed necessary by Landlord. All repairs made by Landlord
Su-bSfcNfiu( Iy
shall be similar /ate—zgea(in quality and class to the
original work, ordinary wear and tear and loss by fire or
other casualty excepted. Landlord, except as otherwise
provided in this Lease, shall have no obligation with respect
to the maintenance and repair of the Demised Premises .
ARTICLE 10
Comj ianc with—Laws and Ordinances
Section 10 . 1 ComIZl-iance by T nantlO . 1 Compliance by Tenant .
Throughout the term of this Lease, Tenant, at Tenant ' s sole
cost and expense, shall promptly comply with all applicable
Laws and Ordinances . To the extent that Tenant ' s compliance
shall. require the cooperation and participation of Landlord,
Landlord agrees , to use its best efforts to cooperate and
participate in accordance with the Joint Use Policy for Joint
Development Projects, as set forth in County Commission
Resolution R-1443A-81, adopted September 28, 1981 .
Section 10 .2 Contest by Tena^t10 .2 Contest by Tenant .
Tenant shall have the right, after prior written notice to
07/19/99, 9 :37AM
10149121 ;
-50-
Landlord, to contest the validity or application of any Law cr
Ordinance by appropriate legal proceedings diligently
conducted in good faith, in the name of Tenant without cost or
expense to Landlord, except as may be required in Landlord' s
capacity as a party adverse to Tenant in such contest. If
counsel is required, the same shall be selected and paid by
Tenant . Landlord hereby agrees to execute and deliver any
necessary papers, affidavits, forms or other such documents
ConriQM OR, '
necessary for Tenant to acquire status to contest the validity
or, application of any Law or Ordinance, which instrument shall
LReal o,u
be subject to pproval of allei b7 counsel for
Landlord, which approval shall not be unreasonably withheld or
delayed. Landlord shall not be required to join in any such
r
contest .
ARTICLE 11
Chances and Alterati „ns to Bui din s by Tenant
. Section 11. 1 Tenant ' s Rightll. l Tenant ' s Right.
Tenant, with Landlord's approval, shall have the right at any
time and from time to time during the term of this Lease, at
its sole cost and expense, to expand, rebuild, alter and/or
reconstruct the Buildings and to raze the Buildings provided
any such razing shall be preliminary to and in connection with
the rebuilding of a new Building or Buildings and provided
07/19/99, 9:37AM
10149121
-51-
further that :
(a)---Tthe method, schedule, plans and specifications T^r
such razing and rebuilding of a new Building or
Buildings are submitted to Landlord for its reasonable
approval at least one hundred twenty (120) days prior
to the commencement of any razing;
(b)----Ifthe rebuilding, alteration, reconstruction or razing
does not violate any other provisions of this Lease;
(c)--Tthe rebuilding, alteration, reconstruction or razing
does not at any time change or adversely affect the
Station entrance, or any access thereto except as may
be required by Laws and Ordinances or agreed to by
Landlord; acrd
(d) The rebuilding, alteration, reconstruction or razing
will produce, based on reasonable projections, an
amount of rent to Landlord over the initial ten (10)
N
years after the rebuilding, alteration,—reconstruction,
Sc�SS /0
or razing which is at least 4442-t+ percent (�O%) more
than the rent received by Landlord during the ten (10)
year period prior to the redevelopment of the Demised
Premises .
(e) Notwithstanding any other provision of this Lease, in
the case of any rebuilding, alteration, reconstruction
07/19/99, 9: 37AM
1014 9121
-52- h
or razing not arising out of Tenant ' s duty -o res::re'
under Article 16, Tenant shall pay Landlord for each
em-TrdaT—Lease Year during the period of such 7 7
which period shall not exceed two (2) years, . the
average annual Participation Rents payable to Landlord
under this Lease during the five (5) Lease Years
immediately preceding commencement of such
(f) Tenant obtains all approvals, Permits and
authorizations required under applicable Ordinances and
Laws-; and
(g) If any portion of the Land has reverted to Landlord
under Section �of this Lease, then , the total
square footage of the modified, remodeled, rebuilt,
altered or reconstructed Building or Buildings shall
not exceed the square footage of the old Building or
Buildings, and no expansion will be permitted, unless
the terms of this Lease are renegotiated to provide a
greater return to Landlord. Landlord agrees that its
approval of the method, schedules, plans and
specifications will not be arbitrarily or unreasonably
withheld, conditioned or delayed. Landlord accepts no
liability and waives no rights by reason of its
approval of the method, schedule, plans and
07/19/99, 9: 37AM
10149121
-53- �''
specifications for any such rebuilding of a new
Building. None of the foregoing provisions are
intended to subject to Landlord' s approval-:
(i) any modifications, construction, replacements,
or repair in the nature of "Tenant work, as
such term is customarily used,,—; or
any normal and periodic maintenance, operation,
and repair of the Buildings .
ARTICLE 12
Discharge of obl ; cati r,n�
Section 12 . 1 Tenant ' s D ,ry
12 . 1 Tenant ' s Dory, During the term of this Lease, Tenant will
discharge any and all obligations incurred by Tenant which give
rise to any li s on the Demised Premises .
`7 9
07/19/99, 9: 37AM
10149121
r '
-54-
Section 12 .2 Landlord ' s Di y12 . 2 Landlord ' D ,rv.
During the term of this Lease, Landlord will discharge any and
all obligations incurred by Landlord which give rise to any
liens on the Station or the Demised Premises, it being
understood and agreed that Landlord shall have the right to
withhold any payment so long as it is in good faith disputing
liability therefor or the amount thereof, provided such
contest of liability or amount operates as a stay of all sale,
entry, foreclosure, or other collection proceedings in regard
to such obligations
ARTICLE 1313 ••
Use Of Premi Ce
Section 13 . 1 Use of Demised Premises by Tenan 13 . 1 Use of D mired
Premi-g-es by Tenant.
X) The Demised Premises shall not be used for the
following:
any unlawful or illegal business, use or
purpose, or for any business, use or purpose
which is immoral, disreputable, extra-hazardous,
or constitutes a nuisance of any kind (public or
private) ; or
( ) any purpose which violates the r-Certificates of
cdccupancy (or other similar approvals of
07/19/99, . 9 :37AM ,
10149121 ,
-55-
applicable governmental authorities ) .
1 - 1 No covenant, agreement, lease
Sublease, Space Lease, Leasehold Mortgage, Subleasehold
Mortgage, conveyance or other instrument shall be
effected or executed by Tenant, or any of its
successors or assigns, whereby the Demised Premises or
any portion thereof is restricted by Tenant, or any
successor in interest, upon the basis of race, color,
religion, sex or national origin in the sale, lease,
use or occupancy thereof. Tenant shall comply with all
applicable state and local laws, in effect from time to
time, prohibiting discrimination or segregation by
reason of race, color, religion, sex, or national
origin in the sale, lease or occupancy of the Demised
Premises .
Except as otherwise specified, Tenant may use the
Demised Premises for any lawful purpose or use
authorized by this Lease and allowed under the
Ordinance establishing the zoning for the Demised
Premises (provided Tenant otherwise complies with the
terms and conditions hereof) . Tenant shall not
knowingly suffer any act to be done or any condition to
exist in or on the Demised Premises or any part thereof
07/19/99, 9 : 37AM
10149121
-56- * .
or any article to be brought thereon, ic^ May be
dangerous, unless safeguarded as required by lava, cr
which may make void or voidable any insurance then in
force with respect thereto.
Section 13 .2 Danaernus TiQ�idS and Ma aria7c
13 . 2 Dang menu
LiQuids and Ma arials
Tenant shall not knowingly permit any vehic J o carry
tell flammable or combustible liquids into or onto
the Demised
Premises during or following completion of construction and
V, shall prohibit the storage or manufacture of an
y flammable or
combustible liquid or dangerous or explosive materials in or
on the Demised Premises; provided that this restriction shall
not apply to prevent the entry and parking of motor vehicles
carrying flammable or combustible liquids solely for the
purpose of their own propulsion.
Section 13 . 3 Tenant ' s Duty and T milord
s Right of Fnf nrcement
Against Tenant and Successor
and Assignee
13 . 3 Tenant ' s Duty and
Landlord ' s Right nf En fnrcement Against Tenant and S and
Successor
Assignee .
94 this Eeas , Tenant)
e—thee thme---
, �
Promptly upon learning of any such.' violation thereof. znd to
07/19/99, 9:37AM
10149121
-57- �. -
1
take immediate steps to terminate same, including the br_nginy
of a suit in Circuit Court, but not the taking or defending of
any appeal therefrom. In the event Tenant does not
promptly take steps to terminate a prohibited
action, Landlord or Miami-Dade County may seek appropriate
injunctive relief against the party or parties actually
engaged in the prohibited action in the Circuit Court of
Miami-Dade County without being required to prove or establish
that Landlord or Miami-Dade County do not have an adequate
remedy at law. The provisions of this sSection shall be
deemed automatically included in all Subleases, Leasehold
Mortgages, Subleasehold Mortgages and Space Leases, and any
other conveyances, transfers and assignments under this Lease,
and any Transferee who accepts such Sublease, Leasehold
Mortgage, Subleasehold Mortgage, Space Lease or any other
conveyance, transfer or assignment hereunder shall be deemed
by such acceptance to adopt, ratify, confirm and consent to
the provisions , of Sections 13 .1, 13 .2 and 13.3 and to
Landlord' s and Miami-Dade County' s rights to obtain the
injunctive relief specified therein.
SectiorO13149 B ,iTriiieme by""? X13.4 - Designation
of Bui 1 dir g E=F4C-'Na
Tenant qff designating
.g
07/19/99, 9: 37AM ;
10149121 .
-58- �� "
5
name (s)-.-by, which the Buildings, the Project or a Phase thereof
shall be known.
ARTICLE 1414
Entry on-- Premises by Landlord
Section 14 . 1 InsDeC ion by Landlnrd of D mieed PrPm; SPC14 . 1
Insmection by T andlord of p mi .;ed
Pre m; SAC ,
Landlord and its authorized representatives, upon reasonable
notice and in the presence of a representative of Tenant,
shall have the right to enter the Demi-sed Premises at
reasonable times during normal business hours for the purpose
of inspecting the same to insure itself of compliance with the
provisions of this Lease.
Section 14 .2 Limitations on InsDent; nn14 . 2 Limitations on
T_ns2ection.
Landlord, in its exercise of the right of entry granted to it
in Section 14 . 1 herein, shall (a) whenever reasonably
O practical, avoid entering bona fide "security areas" of the
Demised Premises; a(!d (b) shall not unreasonably disturb the
occupanSSyVOA Ccllftct by—Tenant, Sublessees and z Space Lessees
nor... cf—their business activities•
J
ARTICLE 1515
limitation of Liability
Section 15 . 1 Limitation of r ; ab; l ; ty of Landlordl5 . 1 Limitation
07/19/99., 9 :37AM
10149121
-59- '
ti
of Liability pf T aii�l pT i .
Q Landlord shall not be liable to Tenant for any incidental or
(� consequential loss or
damage whatsoever arising from the
rights of Tenant hereunder.
Section 15.2 Limitation of iahil ; r
y of Tenant15.2 i.i n'?i to i on o
Liabi1iry of Te ant
Tenant shall not be liable to Landlord for any incidental or
consequential loss or damage whatsoever arising from rights of
Landlord hereunder.
ARTICLE 1616
Damage and Destruction
Section 16. 1 Tenant ' s Duty to R ctnrej6 , 1 Tenant ' ,; Duty to
Re G t o
If, at any time during the term of this Lease, the Demised
Premises or any part thereof shall be damaged or destroyed by
fire or other casualty covered within the insurance
designation of fire and extended coverage as same is
customarily written in the State of. Florida, Tenant, at its
sole cost and expense, if so requested by Landlord or- elected
by-,'Tenant
" nsur.ance ceeds _related to
s uat 'ttIPAT e n a n t for uss-
conneci' i:tiew shall repair, alter, restore, replace or
rebuild the same as nearly as reasonably possible to its
07/19/99, 9:37AM
10149121 '
-60- '`4
value, conditions and character which existed i1'mediately
prior to such damage or destruction, subject to' such changes
or alterations as Tenant may elect to make in conformity with
the ' provisions 01 f this Lease and modern construction
techniques and methods . Provided Tenant otherwise complies
with the terms of this Lease and obtains Landlord' s approval,
which approval shall not be unreasonably withheld or delayed,
\ it may construct Buildings and improvements which are larger,
aller or different in use and represent the highest and best
u
use of the Demised Premises to the extent such construction
and improvement are allowed by Article 4 of this Lease and by
applicable Law5•and Ordinanc6, Such repairs, alterations,
restoration, replacements or . rebuilding, including such
changes and alterations as aforementioned and including
temporary repairs for the protection of other property pending
the completion of any thereof, are sometimes referred to in
this Article 16 as the "Work. " Tenant agrees that it will no
allow the Demised Premises or any part thereof to remai Q.n
damaged such that it interferes with the operation of the �7 I
Station or the System, or t access thereto, without
Landlord' s written consent.
Section 16.2 Landl_o_rd' c Duty to Renair and Rebuild S ation16.2
Landlord' s Duty tc Reipai r and Rebuild Sta i on.
07/19/99, 9 : 37AM
10149121 + '
L
If, at any time during the term of this Lease, the Station Cr
any part thereof) shall be damaged or destroyed by fire c_
other casualty covered within the insurance , designation of
fire and extended coverage as same is customarily written in
the State of Florida, Landlord, at its sole cost and expense,
if requested by Tenant, shall repair or rebuild some type of
station of a design, size and capacity as is required by
Landlord' s transit needs at the time of such repair or
rebuilding. Such repairs or rebuilding, including such
changes and alterations as aforementioned and including
temporary repairs for the protection of other property pending
the completion thereof, are sometimes referred to in this
Article 16 as the "Work. "
Section 16. 3 Interr la ionshin of ease 4ectinne
16. 3
Interr lmticnch; 8 Of Lease Sertinns
Except as otherwise provided in this Article 16, the
conditions under which any Work is to be performed and the
method of proceeding with and performing the same shall be
governed by all the provisions of Article 4 and Article 11
herein.
Section 16. 4 Lnss Payees of Tenant Maintained rn rtr
Insuran e16. 4 Loss Payees of Tenant
- _ _ Mai ntai nerl Property
Ins ur n e ,
07/19/99, 9: 37AM
10149121 }
-62- '�•
With respect to all policies of property insurance required rc
be maintained by Tenant in accordance with Exhibit H attached
(i) Landlord shall be named as an additional insured as its
interest may appear, and (ii) the loss thereunder shall be
payable to Tenant? Landlord and to any Leasehold Mortgagee
under a standard mortgage endorsement. Neither Landlord nor
any Mortgagee shall unreasonably withhold its consent to a
release of the proceeds of any fire or other casualty
• insurance for any loss which shall occur during the term of
this Lease for repair or rebuilding. Any proceeds remaining
after completion of rebuilding or repair under this Article,
shall be paid to Tenan 'd--Q}Aa}l i9e ee,rs- yff E._
Section If the insurance proceeds
received by Tenant or Leasehold Mortgagee are insufficient to
pay the entire cost of the U W.Qrk, Tenant shall supply the
amount of such deficiency, I
Section 16'. 5 Repairs Affecting Station or Demised Prem' ses16. 5
ReRairs- Affectina Station or Demised
Premises .
Before beginning any repairs or rebuilding, or letting any
contracts in connection therewith, required by:
(a) any damage to or destruction of the Demised Premises
which adversely affects the Station entrance,
(b) any damage to or destruction of the Station which
07/19/99, 9: 37AM
10149121
-63- A* .
adversely affects the entrance to the Cemised Premises,
Tenant or Landlord, as the case may be, shall submi_
for the other ' s approval (which approval shall not be
unreasonably or arbitrarily withheld, conditioned or
delayed) , Construction Plans for such repairs or
rebuilding. Any such repairs and rebuilding shall be
completed free and clear of liens subject to the
provisions of Article 12 herein (�
Section 16 . 6 Aba ment o Rent v
16 . 6 Abatement of Rent .
Tenant shall not be entitled to abatement, allowance,
reduction or suspension of any rent or other payments due to
Landlord under this Lease unless caused by casualty loss
or by the negligence of Landlord, in
either of which events Minimum Rent attributable to such
partially or totally destroyed portions of the Demised
Premises shall be abated for the period necessary to
reconstruct the Demised Premises rendered unjenantable, or a
period of two (2) years, whichever comes sooner. Except as
otherwise provided in the Lease, no such damage or destruction
shall release Tenant of or from any other obligation imposed
upon Tenant under this Lease.
07/19/99, 9 : 37AM ;
10149121
-64- �
1 y '
Section 16.7- Termination of Lease
-for Certain Dectrurti nn p rnrri nn
During Last Fives Xearg of L asp T rm 16.7 Termination o -ease fnr
Certain DestrLntion 0 urrinq During Last Five Years nf L aces T l=
Notwithstanding anything to the contrary contained herein, in
the event that the Demised Premises or any part thereof shall
be damaged or destroyed by fire or other casualty during the
last five (5) years: of the term of-:...this Lease and the
estimated- cost- 'f= repair And..restor-atiatr_.exceeds an amount
equal to One Million:.:Dbllalrs.-(4LrQooy('og ,01 the* Tenant shall
have the right to terminate.--.this- Lase and its- obligAgions
hereunder .by giving-wrfttEit`.aotice:to L'and1ord- within-
months after such< daiaageE__.'cttzco ,k- 5izd&:even ;fh~
Lease shall terming# s ��, = day-s�_f!Gllcwi=% thw*recefpt of
such.-notice:-_ They
a�oa�.ef+.�Tenant ta�pa�,rent' under this
9 Lease shall be. rora
,P rod.:..ta,�th�d�t�.efvtarziination.. In such
event,.. the, __L=oPer��iitsurarnr�,�:p�oc�eeds
f=._the: damaged
Buildings shall ber
Pia Lanck�;or. and:Leaseholct.Mortgagee as
their reaps ,e? al, , gg;,, e ,.psovfsions�.roE
Sect
ARTICLE 1717
Mortgages Transfers Subleacec Transfer of Tenant ' s Interest
New Lease and Lease in Reversion
Section 17 . 1 Right to Transfer L asehnIH17 . 1 Right to Transfer
Leasehold.
07/19/99, 9:37AM
10149121 '
-65- tv
a
Yu:tJ
4
During the term of this Lease, Tenant shall have the right and
privilege from time to time to sell, assign r otherwise
transfer all or any portion of its rights under t is Lease (if
the portion sold, assigned or transferred is les than all of
the Demised Premises, such instrument is a "S�b.lea sell) , to
such other persons, firms, corporations, ^partnerships,
unincorporated associations, joint ventures, estates, trusts,
any Federal, State or Municipal government bureau, department
or agency thereof, or any other entities as Tenant shall
select; subject, however, to the following:
(a) Tenant shall not be in default under this Lease at the
time of such assignment.(b)Tenant shall obtain prior
written consent of Landlord bo h as to the roposed
bud' eN( t�
transfer and the proposed transferee if i is es to be
released from liability as Tenant under this Lease.
(C-)Any request to Landlord for suc s a e i
writing and shall be accompanied by copies of all
proposed sale, assignment or transfer documents,
together with the latest audited financial statement of
the proposed transferee and a summary of the proposed
transferee's prior experience in managing and operating
real estate developments . Landlord shall not
unreasonably withhold or delay such consen where the
07999, 9:37AM �C� r
10141491121
-66- �.
proposed transferee has been demonstrated to ave
financial worth at least equal to the original Tenant,
a sound business reputation and a demonstrated
managerial and operational capacity. for real estate.
developmenrand the transferee complies with all
applicable local, State, and Federal 6t t `l � ,�,� tic r"
s, and other
requirements . If Landlord consents to such transferee,
the original Tenant or then applicable assignor shall
be released of all obligations under this Lease
accruing after the effective date of such transfer, but
only as to the portion: of- the . Demised Premises so
transferred. Notwithstanding the oregoing provisions
�S c N 12R�S�' 'Al
of Section 17 . 1 (a) , if Tenant transfers the Lease prior-
X13
to the completion of construction the Tenant (or
assigl) - who is the transferor shall remain liable under
all the terms and provisions of this Lease until the
same is substantially completed, (as evidenced by the
issuance of a cCertificate of cCompletion or
edertificate of '00ccupancy . K T►�a-T � �
(b) �N sale, assignment or transfer shall be made
expressly subject to the terms, covenants and
conditions of this Lease, and uc assignee or
07/19/99, 9 : 37AM 7
10149121
-67- ��
transferee shall expressly assume all of
.e
obligations of Tenant under this Lease and agree to be
subject to all conditions and restrictions to which
Tenant is subject tonly for matters accruing while
J
such assignee or transferee holds, and only related to,
the sold, assigned, or transferred interest. However,
nothing in this subsection or elsewhere in this Lease
cub RO Q h� R1 hf" fv rr�•n�-
shall Landlord' s o a 1 rent and
other amounts due Landlord which accrued prior to the
effective date of such transfer, and Landlord shall
always have the right to enforce collection
ina e q5
(c) There shall be delivered to Landlord all documents
required by subsection 17 . 1 (a) , and a certificate
.L___ing4
- consideration for the
transfer. There shall also be delivered to Landlord a
notice which shall designate the name and address of
the transferee and the post office address of the. place
to which all notices required by this Lease shall be
sent. Landlord shall have the right to audit and
verify the sales price or consideration in accordance
with Section
(d) Such transferee of Tenant (and all succeeding and
07/19/99, 9: 37AM
10149121 ;
-68- .4z
successor transferees) shall succeed to all rights and
obligations of Tenant under this Lease with respect to
the portion of the Demised Premises so transferred, and
subject to the terms of the document of assignment or
transfer, including the right to mortgage, encumber and
otherwise assign and sublease subject, however, to all
duties and obligations of Tenant, and subject to the
terms of the document of assignment or transfer, in and
pertaining to the then term of this Lease. As between
10a enant and the_.;trans*ee ,,t --assignment (or- other
P-� document~.of:.�irs "' .s
- a i an r^othe
payments~.un -,-t transferee.
p hgr=tfie
(e) Once an -assig.nment.:4asr �R„ dam_yth;•_respect` to any
{ portion, of-., the..Demssed -
_s,: the.:transferee and
Landlorr ._ma:y�* hereatatte'nd?.os.. chge the
-p,o #flnr--ok€ the Demised
`s?il�J:e '-' ferovfsions:- of the
. aiicsI 'abiogat the-..rights
=Tenant o ,
- ugfpTenant) as to:anj
not such
any
07/19/99, 9 : 37AM
10149121
-69-
other part of the Demised Premises a� the Lease
thereof.
(f) Except as may otherwise be specifically provided in
Section& 17. 1, upon Landlord' s consent to
a transfer by any assignee, such transferor shall be
released and discharged from all of its duties and
obligations hereunder which pertain to the portion of
the Demised Premises. transferred for the then unexpired
L term of Lease, including the payment of Minimum and
Rent; and Impositions which are not then
due and payable; it being the intention of this Lease
that the Tenant then in possession shall be liable for
aymen o said Minimum Rent, and
Impositions becoming due and payable during the term of
its possession of the Demised Premises, and that there
shall be. no obligation on the part of such Tenant (or
any transferor) for the payment of any such Minimum
Addi 1 Rent, or other Impositions which shall
become due and payable with: respect-.tn_the portion. of
: Dem sECt Premises= transferred"-subsequent to the
termination of their possession of any--portion- of the
Demised Premises under the terms of this Lease.
(g) Any act required to be performed by Tenant pursuant to
07/19/99, 9 : 37AM
10149121
-70-
the terms of this Lease may be performed by any
transferee or Sublessee of Tenant and the performance
Of such act shall be deemed to be performed by Tenant
and shall be acceptable as Tenant ' s act by Landlord,
Provided such act is otherwise performed in accordance
with the terms of this Lease.
(h) For purposes of this Article, the words sale,
assignment or transfer shall be deemed to have similar
meanings unless the context indicates otherwise. If
Tenant is corporation, unincorporated association,
partnership, or joint venture, the transfer,
�1,jre_Acj-� assignment, or hypothecation of any stock or interest
� in such R h corporation, association,^partnership, or point
venture, in the aggregate in excess of thirty-five
percent (35%) shall be deemed an assignment within the
meaning and provisions of this Section. "In the
aggregate", means the sum of all stock transferred over
the entire period of this lease. Stock transferred
among the original principals and .oz:-thei families is
excluded. 6a 6 '� �'� -�-s+5
Section 17 .2 Right tn Mo ,iaQe LeasehZLIdJ7 .2 fight to Mortgage
Leasehold.
Tenant and its Sublessees shall have the right from time to
07/19/99, 9:37AM
10149121
time, and without prior consent of Landlord, to mortgage and
otherwise encumber their rights under this Lease, a Sublease
thereof, and the leasehold estate, in whole or in part, by a
Leasehold or Subleasehold Mortgage or Mortgages to any
Leasehold Mortgagee or Subleasehold Mortgagee. , provided it is
a recognized lending institution, such as a bank, savings and
f�lloan, bank i
pension fund, insurance company, savings g real
5 cl�«fipN estate investment trust, other real estate investment entity,
Y)
federal, state or municipal governmental agency or bureau,
whether such be local, national or international, or the
mortgage is a purchase money mortgage given back to the
transferor.—Such mortgag or encumbran4 shall be expressly
subject to the terms, covenants and conditions of this Lease,
and at all times shall be inferior and subject to the prior
right, title and interest of Landlord herein as security for
the performance of the terms and conditions of this Lease.
Tenants the Sublessee Gr shall provide Landlord
with a copy of all such Leasehold Mortgages and Subleasehold
Mortgages. The granting of a Leasehold or Subleasehold
Mortgage or Mortgages against the leasehold estate in the
Demised Premises shall not operate to make the Leasehold or
Subleasehold Mortgagee (s) there der liable for performance of
any of the covenants or obliga ions of Tenant or Sublessee
07/19/99, 9 : 37AM rail , AR P&Rp of
10149121
-72- '
under this Lease or a Sublease, except in the case Of 3
Leasehold or Subleasehold Mortgagee which owns or is in
possession of all or a portion of the Demised Premises, and
then only for its period of ownership or possession, but
Landlord shall always have the right to enforce the Lease
obligations fo+ tile ra= ta against such portion of
the Demised Premises, including such obligations accruing
Prior to such period of ownership or possession
Qny such lJ
9'
Leasehold or Subleasehold Mortgage may be increased whether by
an additional mortgage and agreement consolidating the liens
of such Leasehold or Subleasehold Mortgages or by amendment of
the existing Leasehold. or Subleasehold Mortgage, and may be
permanent or temporary, replaced, extended, increased,
a refinanced, consolidated or renewed on any or all Phases,— or
1 portion of the Demised Premises Such Leasehold or
Subleasehold Mortgage (s) may contain a provision for an
assignment of any rents, revenues, Moinesmonies or other
payments due to Tenant or Sublessee as a landlord (but not
T� t r"
from Tenant or Sublessee to Landlord) rom a Sublessee to the
Leasehold or Subleasehold Mortgagee (s) , and a provision
therein that the Leasehold or Subleasehold Mortgagee (s) in any
action to foreclose the same shall be entitled to the
appointment of a receiver. In addition to the mortgages and
07/19/99, 9 : 37AM
10149121
-73-
mortgagees described above, Tenant, Space Lessees and
Sub P SSe-�
shall have the right to mortgage their respective
/ interests to other lender 5f but such other lenders will not
< e �
have any of the benefits accorded to Leasehold Mortgagees,
Subleasehold Mortgagees, or Sublessees under the following
sections of this Article 17
Section 17 .3 NO ; o andsord of PaSPhnld wort
gage17 . 3 Notice
to Landlord of LPa5Phn1 r� Morf-Qg,
A notice of each Leasehold Mortgage and Subleasehold Mortgage
shall be delivered to Landlord specifying the name and address
of such Leasehold and Subleasehold Mortgagee to which notices
shall be sent. Landlord shall be furnished a copy of each
such recorded mortgage. For the benefit of any such Leasehold
or Subleasehold Mortgagee who shall have become entitled to
notice as hereinafter provided in this Article 17, Landlord
agrees, subject to all the terms of this Lease, not to accept
a voluntary surrender, termination or modification of this
Lease at any time while such Leasehold or Subleasehold
Mortgage (s) shall remain a lien on Tenant ' s or Sublessee ' s
leasehold estate. Any such Leasehold or Subleasehold
Mortgagee (s) will not be bound by any modification of this
�a- Lease unless such modification is made with the prior written
consent of such Leasehold or Subleasehold Mortgagee, and no
07/19/99, 9 :37AM
10149121
-74- �, .
sale or transfer of the Land or any portion thereof
..an
shall terminate this Lease by merger or otherwise so long as
the lien of the Leasehold or Subleasehold Mortgage remains
undischarged. The foregoing is not meant to prohibit a sale
of the fee to Tenant .
Section 17 . 4 No ; ces- tn L asehnld and Subleasehold Mort
and Sublessee (s) 17 . 4 Notices to sehnlr^I LPa
-- _ _-_ znd Subleasehold
Mortgagee (s) -and Si;hl eq-ee (S )
No notice of default under Section 19. 1 or notice of failure
to cure a default under Section 19. 2 (a) shall be deemed to
have been given by Landlord to Tenant unless and until a copy
has been given to each Leasehold Mortgagee, Subleasehold
Mortgagee and Sublessee who shall have notified Landlord
pursuant to Sections 17 . 1 (c) , 17 .3 or 17 . 7 of its name,
address and its interest in the Demised Premises prior to
Landlord' s issuance of such notice. Landlord agrees to accept
performance and compliance by any such Leasehold Mortgagee,
Subleasehold Mortgagee or Sublessee of and with any of the
terms of this Lease with the same force and effect as though
kept, observed or performed by Tenant, provided such act or
performance is timely under Sections 17 . 5 or 19.3 . Nothing
contained herein shall be construed as imposing any obligation
upon any such Leasehold Mortgagee, Subleasehold Mortgagee or
07/19/99, 9: 37AM
10149121
-75- *
Sublessee to so perform or comply on behalf of Tenant .
Section 17 . 5 Right tn Cure D f" r of Tenant17 . 5 Right to Carp
Default of Tenant.
(a) In addition to any rights the Leasehold or Subleasehold
Mortgagee or Sublessee may ha ,e by virtue of Article 19
herein if, A;I Ve 0�
within ) days after the mailing of
a►j V
notice of termination or such later date as is
thirty (30) days following the expiration of the cure
period, if any, afforded ;Tenant (the "Mortgagee Cure
Period") , such Leasehold Mortgagee or a Sublessee or
Subleasehold Mortgagee shall pay, or arrange to the
satisfaction of Landlord for the payment of, a sum of
money equal to any and all rents or other payments due
and payable by Tenant hereunder with respect to the
portion of the Demised Premises to which such Leasehold
or Subleasehold Mortgagee or Sublessee claims an
l �� interest as of the date of &we#s termination, in
addition to their pro rata share of any and all
expenses, costs and fees, including reasonable
attorneys ' fees, incurred by Landlord in terminating
this Lease and in acquiring possession of the Demised
Premises, then, upon the written requ st of such
Leasehold Mortgagee, Sublessee or Subleasehold
07/19/99, 9 :37AM �ke CO-K ,iw
10149121
-76- # _
Mortgagee made any time rior
to the expiration of the Mortgagee Cure pPeriod,
Landlord and the party making such request shall
mutually execute prior to the end of such
d—d Mortgagee Cure pPeriod a new Lease of the Demised
Premises (or such portion thereof as they have an
interest in or mortgage on) for the remainder of the
term of , this Lease and on the same terms and
conditions, and with the same priority over any
encumbrances created at any time by Landlord, its
successors and assigns which Tenant has or had by
virtue of this Lease; provided, however, that in
addition to the above payments such Leasehold
Mortgagee, Sublessee or Subleasehold Mortgagee shall
have paid to Landlord a sum of money equal to the rents
and other payments for such portion of the Demised
Premises accruing from the date of such termination to
the date of the commencement of the term of such new
Lease, together with their pro rata share of all
expenses, including reasonable attorneys ' fees,
incident to the preparation, printing, execution,
delivery and recording of such new lease . Such
priority shall exist by virtue of the notice created by
07/19/99, 9: 37AM
Y .
10149121
-77- 4 -
this Lease to any transferee of Landlord or person
receiving an encumbrance from Landlord, and the
priority shall be self-operative and shall not require
any future act by Landlord. Such new Lease (s) shall
contain the same clauses subject to which this demise
is made, and shall be at the rents and other payments
for such portion of the Demises Premises due Landlord
and upon the terms as are herein contained. Tenant (s)
under any such new Lease (s) shall have the same right,
title and interest in and to and all obligations
accruing thereafter under this Lease with respect to
the applicable portion of the Demised Premises as
Tenant has under this Lease.
(b) If, within the Mortgagee Cure Period, more than one (1)
request for a new lease shall have been received by
Landlord for the same portion of the Demised Premises,
priority shall be given (regardless of the order in
which such requests shall be made or received) to the
Leasehold Mortgagee, Sublessee or Subleasehold
Mortgagee making such a request in order of their
priority of interest in said portion of the Demised
Premises. It shall be a condition of the effectiveness
of any request for a new lease that a copy of such
07/19/99, 9 : 37AM
10149121 .
-78-
request be sent (with receipt for delivery) by the
Sublessee or Subleasehold Mortgagee, as the case may
be, to the Leasehold Mortgagee.
(c) Simultaneously with the making of such new lease (s) ,
the party obtaining such new lease and all other
parties junior in priority of interest in the Demised
Premises shall execute, acknowledge and deliver such
new instruments, including new mortgages and a new
Sublease, as the case may be, and shall make such
payments and adjustments among themselves, as shall be
necessary and proper for the purpose of restoring to
each of such parties as nearly as reasonably possible,
the respective interest and status with respect to the
Demised Premises which was possessed by the respective
parties to the termination of this Lease as aforesaid.
(d) Nothing herein contained shall be deemed to impose any
obligation on the part of Landlord to deliver physical
possession of the Demised Premises to such Leasehold
Mortgagee, Sublessee or Subleasehold Mortgagee or to
their respective nominee Landlord agrees, however,
that Landlord will, at the cost and expense of such
Leasehold Mortgagee, Sublessee or Subleasehold
Mortgagee or respective nominee, cooperate in the
07/19/99, 9:37AM
10149121
-79- � _
prosecution of judicial proceedings to evict the then
defaulting Tenant or any other occupants of the Demised
Premises .
(e) If such Leasehold Mortgagee, Sublessee or Subleasehold
Mortgagee or respective nominee shall acquire a new
-;lease pursuant to this Article 17 and if, upon scei,the
termination of this. Lease, Tenant, but for such
termination, would have been entitled to receive any
amount pursuant to the provisions of this Lease, then
Landlord agrees that the same shall be paid to the new
Tenant, in the same manner and to the same extent as it.
would have been paid or the same to or for the
benefit- of Tenant as if this Lease had not terminated;
subject however to Landlord' s right to offset any
damages accrued as a result of said termination.
(f) Upon the execution and delivery of a new -blease (s)
pursuant to this Article 17, all Space Leases and any
Sublease which theretofore may have been assigned to
Landlord or have reverted to Landlord upon termination
of this Lease shall be assigned and transferred,
without recourse against Landlord, by Landlord to the
/enant under any such new trlease (s) . Between the date
of termination of this Lease and the date of execution
07/19/99, 9 : 37AM , .
10149121 ,
-80- ��
and delivery of the new t-lease (s) , if the Leasehold
Mortgagee, Subleasehold Mortgagee, or Sublessee shall
have requested such new trlease (s) as provided .for in
this Section 17 .5, Landlord will not cancel any Space
Lease or Sublease or accept any cancellation,
termination or surrender thereof (unless such
termination shall be effective as a matter of law on
the termination of this Lease) without the consent of
the Leasehold or Subleasehold Mortgagee or Sublessee, ,
except :
(i) for default as permitted in such Sublease or
Space Lease, and
(ii) for the purpose of permitting Landlord to enter
into a Space Lease or Sublease with another
Space Lessee or Sublessee who will occupy not
less than the same amount of space demised by
the canceled Space Lease or Sublease at a rental
rate per square foot and for terms not less than
the rental rates per square foot, and for at
least the remainder of the unexpired terms,
respectively, of the canceled Space Lease or
Sublease.
(g) Nothing contained in this Lease shall require any
07/19/99, 9: 37AM .
10149121 .
-81- „4
Leasehold or Subleasehold Mortgagee or its ncTinee as
a condition to its exercise of its right to enter into
a new Elease to cure any default of Tenant or Sublessee
not reasonably susceptible of being cured by such
Leasehold or Subleasehold Mortgagee or its nominees, in
order to comply with the provisions of this Section
17 .5 .
(h) The provisions of this Section 17 . 5 shall survive any
termination of this Lease.
07/19/99, 9:37AM ,
10149121
-82- it
Section 17 . 6 Leasehold in Reversion and Assignment in ieu o -
Foreclosurel7 . 6 Leasehold in Reversion and Assignment in L • ejj c -
Foreclosure.
Tenant ' s or, Sublessee ' s right to mortgage and otherwise
encumber this Lease and the leasehold estate in whole or in
part shall include the right to require a lease in reversion
which lease in reversion shall become effective upon the
termination of this Lease, and shall have the same terms and
provisions, including expiration date, as this Lease. The
Leasehold or Subleasehold Mortgagee shall have the
' unrestricted right to take this Lease by lease in reversion or
by assignment in lieu of foreclosure and to sell it either
after foreclosure or after taking the assignment or becoming
Tenant under the lease in reversion all without the consent of
Landlord. The Leasehold or Subleasehold Mortgagee shall not
be liable for Tenant ' s obligations hereunder until such a time
as it becomes the new Tenant, either by lease in reversion,
foreclosure or assignment and then only for the period of its
ownership or possession of the leasehold estate, but Landlord
O�j shall always have the right to enforce the Lease obligations
0 for the particular Phaseportiom. of_ the. Demised Premises
against such portion of the Demised Premises, including such
obligations accruing prior to such period of ownership or
07/19/99, 9: 37AM
10149121
-83-
possession, provided the same are curable by the Mor-gagee .
Section 17 .7 Rights to Sublease and Non Dist„rhanne to Sublessees
and/or Space es_sees 17 ,7 Rights to Sublease and Non-Disturbance
to Sublessees and/or space TPQQeee
Tenant shall have the right to enter a aSublease or Space
Lease without any approval or consent of Landlord; however,
notwithstanding any other provisions of this Lease, no
Sublease or Space Lease shall relieve Tenant of any
obligations under the terms of this Lease urrlessf with. regard
to a Sublease, a release is granted in accordance with Section
17. 1 (a) above. Tenant must give written notice . to Landlord
com me
specifying the name and address of any Sublessee or Spa
Lessee to which all notices required by this Lease shall be
Cb M M e 1 .
sent, and a copy of the Sublease. or pace.;Zease. - Tenant
co n1 m e 2c-t�.�
shall provide Landlord... with, copiea.. of a _ pace- eases or
Subleases entered,_into. during'eachr:-quarte :t ,Landlord agrees
evrnrnepe,al
to grant:. Non_-Disturbanc >Agar e a s e- Lessees or
Sublessees->wfire _;g ovrde :K; ij _ tk ;,evd#g �:a~;.;termination- of
this h Demised
euk
Pr ; uc ess` �.; Shaless-ees - Space
m me2r i� _
Lea �.._.e<sseoz$uErF47-44 will not be
dis '' :aoredpcefii3:L iri
r y��
possess"i'riu ed_ that
07/19/99, 9:37AM
10149121
-84-
the following conditions are met:
Comm ! i
:�L
a. the pace Lease or Sublease is an arms length
transaction on market terms;
b. the Space Lessee or Sublessee is not a "related
party" to either- Tenant or any. Sublesse j Gq
c the Space-, Lessee or Sublessee shal-1 be in compliance
with the- termv: and--conditicna% Of.:its- Space Lease or
Sublease; and
d. the Space Lessee- or.Sublessee' sh&II agree to-. attorn
to Landlorck;:.
Landlord furher agrees that
Space Lessees-. or -Sublet -eesr---,sd;•IZA4;acg fi e -rcomFliance
with the .terms of'their-°gpec6 Leasew-;or -:Subleases-; and provided
further that any such- Space -Leases -v�--Suble-asjW-• dog .Trot• extend
beyond the expiration_of--the "of a i s: a�sls
Section 17 . 8 Estoppel Certificates from Landlo d17 . 8 Estoppel
Certificates from Landlord.
Upon request of Tenant or any Leasehold Mortgagee,
Subleasehold Mortgagee or Sublessee, Landlord agrees, within
t�ri�t (ee") business days after such request to give
such requesting party an estoppel certificate stating therein
that Tenant to the best of Landlord' s knowledge is not in
07/19/99, 9:37AM r '
10149121
-85- '� _
defaul , that the Lease is in full force and effect, and that
all conditions for effectiveness of the Lease are satisfied
and that the Lease has not been modified, or otherwise to
specify which of the foregoing is not correct and to what
extent.
Section 17 . 9 Limited Waiver of Land ord Tien_ Section 17 . 9 Limiters
Waiver of Landlord n _
In order to enable Tenant and its Sublesse$ to secure
financing for the purchase of fixtures, equipment, and other
personalty to be located on or in the Demised Premises,
whether by security agreement and financing statement,
mortgage or other form of security instrument, Landlord wild
from time to. time, upon request, execute and deliver an ,
acknowledgment that it has waived its "landlord's" or other
statutory or common law liens.. securing payment of rent or
performance of Tenant's other covenants under this Lease as to
such fixtures, equipment or other personalty.
Section 17 . 10 No Subordination or Mortgaging of Landlord ' s Fee
Title .-17 . 10 No Subordination or Mortgaging of Landlord' s Fee
Title .
There shall be no subordination of Landlord' s fee simple
interest in the Land to the lien of any Leasehold Mortgage or
Subleasehold Mortgage financing nor shall Landlord be required
07/19/99, 9: 37AM
10149121
-86- .
to join in such mortgage financing. No Leasehold Mortgagee or
Subleasehold Mortgagee may impose any lien upon the Landlord' s
fee simple interest in the Land.
ARTICLE 1818
Eminent Domain
Section 18 . 1 Taking of Entire-Premises
18 . 1 Taking of Entire Premise-s.
If at any time during the term of this Lease the power of
eminent domain shall be exercised by any federal or state
sovereign or their proper delegates, by condemnation
proceeding (a "Taking") , to acquire the entire Demised
Premises, such Taking shall be deemed to have caused this
Lease to terminate and expire on the date of such Taking.
Tenant' s right to recover a portion of the award for a Taking,
as hereinafter provided, is limited to the fair market value
of the Buildings and other improvements, the value of
Tenant ' s interest in the unexpired term of the leasehold
estate created pursuant to this Lease and in no event shall
Tenant be entitled to compensation for anyiinterest in the
Land.- Notwithstanding anything herein contained to the
contrary, Landlord shall be entitled to receive from the
condemning authority (and to the extent
07/19/99, 9:37AM
10149121
-87- _
r-ti
f� L
`
that if the award s insufficient) not less than the
value of the Land�at the time of-Taking. For the purpose o-
this Article 18, the date of Taking shall be deemed to be
either the date on which actual possession of the Demised
Premises or a portion thereof, as the case may be, is acquired
by any lawful power or authority pursuant to the Taking or the
date on which title vests therein, whichever is earlier. All
rents and other payments required to be paid by Tenant under
this Lease shall be paid up to the date of such Taking .
1-u,tv'dv j Tenant shall, in all other respects, keep, observe and p erform
all the terms of this Lease up to the date of such Taking.
Section 18 .2 proceeds of Taking
18 .2 Proceeds of Tak' a,
In the event following any such Taking as aforesaid, this
Lease is terminated, or in the event following a Taking of
less than the whole of the Demised Premises this Lease is
terminated as provided for in Section 18.3 herein, the
proceeds. of any such Taking (whole or partial) shall be
distributed--as described in Section 18.1. If the value of the
respecter•: interests of Landlord and Tenant shall be
determined according to the. foregoing provisions of this
Section 18 in the proceeding pursuant to which Demised
1
07/19/99, 9: 37AM
10149121
-88- � _
Premises shall have been taken, the values so determined shall
be conclusive upon Landlord and Tenant . If such values shall
not have been separately determined in such proceeding, such
values shall be fixed by agreement between Landlord and
Tenant, or if they are unable to agree, by an apportionment
hearing within the condemnation proceeding so that the
allocation between the parties is fair and equitable. t► I,,
Section 18 . 3 Partial-Taking: T rminatic of L2A 18 . 3 Partial
Taking: Termination p T ase.
If, in the event of a Taking of less than the entire Demised
Premises, the remaining portion of the Demised Premises not so
taken cannot be adequately restored, repaired or reconstructed
so as to constitute a complete architectural unit of
substantially the same usefulness, design, construction, and
commercial feasibility, as immediately before such Taking,
then Tenant shall have the right, to be exercised by written
notice to Landlord within one hundred twenty (120) days after
the date of Taking, to terminate this Lease on a date to be
specified in said. notice, which date shall not be earlier than
the date of such Taking, in which case Tenant shall pay and
shall satisfy all rents, revenues and other payments due and
accrued hereunder up to suchthe date of such termination and
shall perform all of the obligations of Tenant hereunder to
07/19/99, 9:37AM
10149121
-89- �
such date
,)and thereupon this Lease and the term herein demised
shall cease and terminati the Tenant ' s interest
under this Lease in the remainder of the Demised Premises not
taken shall be sold in accordance with applicable Law
Jand the
proceeds of the sale shall be combined with. the award given
for the partial Taking with the entire amount then being
distributed as if a total Taking had occurred. Landlord shall
have the option to purchase Tenant ' s interest under this Lease
in the remainder of the Demised Premises at its fair market
value for a period of sixty (60) days after the determination
li3 of fair market value, which value shall be determined by a
mutually acceptable appraiser (or if no. one appraiser is
agreed upon by the parties, by an appraisor, chosen by two
appraisers, one of which will be appointed by each party,
within one hundred and fifty (150) days from the date the
Lease was terminated. The fair market value specified in the
preceding sentence shall be limited to the fair market value
of the Buildings and improvements and in no event shal /1
e
such value include any^in erest in the Land. All appraisal
costs:^ l, be.:split equally between the Landlord and Tenant.
LI f Landlord fails to purchase, the remainder may be sold.
Section 18 . 4 Partial Taking: Continuation of Lease18 . 4 Partial
Taking: Continuation of Lease.
07/19/99, 9:37AM
10149121
-90- � -
If following a partial Taking this ti-re Lease is not term—,—aced
as hereinabove provided then, this Lease shall terminate as t:�
the portion of the Demised Premises taken in such condemnation
proceedings; and, as to that portion of the Demised Premises
not taken Tenant shall proceed at its own cost and expense
either to make an adequate restoration, repair or
reconstruction or to rebuild a new Building upon the part of
the Demised Premises not taken. In such event, Tenant ' s share
of the award, as determined in accordance with Section 18 . 1
herein, shall be used by Tenant for its reconstruction,
repair or rebuilding. If the part of the award so paid to
Tenant is insufficient to pay for such restoration, repair or
reconstruction, Tenant shall pay the remaining cost thereof,
and shall fully pay for all such restoration, repair and
reconstruction, and complete the same to the reasonable
satisfaction of Landlord free from mechanics ' or materialmen ' s
liens and shall at all times save Landlord free and harmless
from any and all such liens .
Section 18 . 5 Temporary Takingl8 . 5. Temporary Taking.
If the whole or any part of the Demised Premises or of
Tenant ' s interest under this Lease be taken or condemned by
any competent authority for its or their temporary use or
occupancy not exceeding one year, this Lease shall not
07/19/99, 9: 37AM
10149121
-91-
�Srlwl
terminate by reason thereof, and —Tenant continue to pay, in
the manner and at the times herein specified, the full
amounts of the rents, revenues and all other charges payable
by Tenant hereunder and, except only to the extent that Tenant
may be prevented from so doing pursuant to the terms of the
order of the condemning authority, to perform and observe all
of the other terms, covenants, conditions and all obligations
hereof upon the part of Tenant to be performed and observed,
as though such Taking had not occurred. In the event of any
such temporary Taking, Tenant shall be entitled to receive the
entire amount of any award made for such temporary Taking
(attributable to the period within the term of the Lease) ,
5 other than the portion of Minimum Rent which was abated
pursuant to this Section, which amount Landlord shall be
entitled to claim from the Taking Authority, whether paid by
way of damages, rent or otherwise. All such proceeds paid to
Tenant pursuant to this Section shall be considered as Gross
Income as defined in Section 3.7 . Tenant covenants that, upon
the termination of any such period of temporary Taking, prior
to the expiration of the term of this Lease, it will, at its
sole cost and expense, restore the Demised Premises, as nearly
I s may be reasonably possible, to the condition in which the
same were immediately prior to such Taking.
07/19/99, 9: 37AM
10149121 Jit
-92-
Section 18 . 6 Additional Takinas18 . 6 Additional Takings .
In case of a second, or any additional partial Taki^g
Takings from time to time, the provisions herei.^.abcve
contained shall apply to each such partial Taking. In the
event any federal or state sovereign or their proper delegates
with the power of eminent domain appropriates or condemns al_
or a portion of the Demised Premises, and Landlord is a
beneficiary of such Taking, the award shall be divided in
accordance with the provisions of Section In that
event, in accordance with the provisions hereof, Tenant shall
restore, repair, or reconstruct any portion of the Demised
Premises not taken; provided that if the award so paid to
Tenant shall be insufficient to fully pay for such
restoration, repair or reconstruction, Tenant shall have the
option of:
(a) Repairing at its expense, in which event the provisions
of Section H .4 herein shall control, or
(b) Terminating the Lease in which event the provisions of
Section 18 . 9• herein shall control .
Section 18 .7 Inverse condemnation or Other Damaaes18 .7 Inverse
Condemnation or Other Damages .
In the event of damage to the value of the Demised Premises by
reason of change of grade, access rights, street alignments or
07/19/99, 9: 37AM
10149121
-93- _
any other governmental or quasi-governmental a=t
involving Landlord) which constitutes an inverse condemnatic-
of any portion of the Demised Premises creating a right to
full compensation therefor, then Landlord and Tenant shall
each be entitled to claim and receive from the net payment or .
award made on account thereof, the compensation for their
respective estates and interests as set forth in Section 18 . 1 .
Section 18 . 8 Taking 'by Landlcrd18 . 8 Taking by Landlord.
Should Landlord condemn the Demised Premises or any portion
�=►F+ee�' C 15J
thereof within the first 44a..4�) . years of the term of this
A
Lease, it is expressly agreed by Landlord that full
compensation to Tenant shall be:
(a) Those factors set forth in Section 18 . 1 above; and
(b) The pro rata costs expended by Tenant in the
development of the condemned portion of the Demised
Premises other the hard costs to construct any
Buildings located thereon, aA!C ,
07/19/99, 9 : 37AM
10149121
-94- �
The provisions of this Section regarding t'enant ' s compensaticn
shal=l not be applicable to any proceeding other than a
Taking by the Landlord -within the first
�� years ars of
n
the term of this Lease. The costs referred to in clause
(b) above include but are not limited to legal . fees;
architectural, engineering, surveying, planning, and
other consulting fees; accounting fees; brokerage fees in
connection with leasing and financing; other financing
costs; costs of infrastructure such as water, sewer,
other utilities and road, drainage and other land
improvements; a reasonable and fairly allocable share of
Tenant' s overhead costs related to the portion of the
Demised Premises that is taken; and interest from the
date such costs were expended to the date of compensation
at the prime rate from time to time in effect of
N,N� a' t�rc Bank or its successor. Landlord agrees
���i��
that Landlord shall not condemn the Demised Premises or
any portion thereof except (i) in good faith, (ii) when
no other property is reasonably suitable for the public
use=°=:the Landlord needs, and (iii) for a purpose other
that eithez..leasing or selling the condemned property to
C ..._
another person or entity engaging in Tenant's business of
leasing office, commercial or residential space (or a
1/ 7
07/19/99, 9: 37AM '
10149121
-95- A* _. .
combination of such uses) . If there is a taking cy
Landlord of a portion of the Demised Premises, Land_ora;
shall not use the property it so acquires for any use
detrimental to Tenant ' s remaining property
trash transfer station, Metromover turning or switching
yard, train repair or storage, bus storage or repair,
warehouse having a truck parking area or loading dock
visible from the road, jail or other use with the clear
likelihood of diminishing Tenant ' s use and enjoyment of
' remises . Landlord shall consult with and coordinate
design of any improvements upon the land referred to in
this paragraph with Tenant, so as to maintain
architectural compatibility with the balance of the
Buildings located on the Demised Premises, and so as to
coordinate traffic.
Section 18 . 9 Involuntary Conversion18 . 9 Involuntary Conversion.
In the event any Taking or other like proceeding or threat or
imminence thereof shall occur as provided for hereinabove or
otherwise, Landlord and Tenant agree to cooperate with each
other (especially in the event of a Taking under Section 18 . 8)
in order to provide proper evidence of communication of the
proceeding or threat or imminence thereof (including evidence
of like Takings under Section 18 .7) to the Internal Revenue
07/19/99, 9 : 37AM
10149121
-96- _
Service for purposes of determining whether property ;as �e�r
voluntarily converted within the meaning of the -r:tern-= '
Revenue Code.
ARTICLE 1919
DefaLlt by Tenant or Landlord
Section 19. 1 Events of Default of T nant19 . 1 Events 'of Def a„11 of
Tenant .
The following provisions shall apply if any one or more of the
following "Event (s) of Default of Tenant” shall happen:
(a) Tenant purposeful f disregard5ti�accuratet M'calculat
C ^+articipation kent .
(b). Default is made in the due and punctual payment of any
rents, revenues, or other ft±nesnonies payable to
Landlord under this Lease when and as the same shall
become due and payable and such default shall continue
for a period of thirty (30) days after written notice
thereof from Landlord to Tenant with copies thereof to
each Leasehold Mortgagee, Sublessee, et'^Subleasehold
Mortgagee who shall have notified Landlord of its name,
address and interest prior to such notice; or
(c) Default is made by Tenant in keeping, observing or
performing any of the terms contained in this Lease,
excepting the obligation to pay rents, revenues or
07/19/99, 9 : 37AM
10149121
;`�
Mcr���s
other Uo4a=z due Landlord, and such default siaii
continue for a period of thirty (30) days after
written notice thereof from Landlord to Tenant setting
forth with reasonable specificity the nature of the
alleged breach, with copies thereof to each Leasehold
C N4,(
Mortgagee, Sublessee, x Subleasehold Mortgagee who
shall have notified Landlord of its name, address and
interest prior to such notice; or in the case of such
default or contingency which cannot with due diligence
and in good faith be cured within thirty (30) days,
Tenant fails within said thirty (30) day period to
proceed promptly and with due diligence and in good
faith to pursue curing said default .
Section 19 .2 Failure to Cure Default by Tenant19.2 Failure to
Cure Default by Tenant .
(a) If an Event of Default of Tenant shall occur, Landlord,
at any time after the periods set forth in Section
b G
19. 1, or yd) and provided. Tenant has failed. to cure
such BYeut of Default within such applicable period,
shall give written notice to Tenant and to any
Leasehold Mortgagee, Sublessee or Subleasehold
Mortgagee who has notified Landlord in accordance with
Sections 17 . 1 (c) , 17 .3, or 17 . 7, specifying such
07/19/99, 9: 37AM
10149121
-98- Al.
Event (s) of Default of Tenant and stating
Lease and the term hereby demised shall expire ani
terminate on the date specified in such notice, which
shall be at least thirty (30) days after the giving of
such notice, during which time Tenant and/or the
�
Leasehold J� iubleasehold Mortgagee (s)
,,,a4 Sublessee s)
shall have the right to cure such default, and upon the
date specified in such notice if the Event of Default
has not been cured, then, subject, however, to the
provisions of Sections 17 .5 and 19. 3 herein, this Lease
and the term hereby demised and all rights of Tenant
under this Lease, shall expire and terminate .
(b) If an Event of Default of Tenant shall occur and the
rights of Leasehold Mortgagees, Sublessees, and
Subleasehold Mortgagees shall not have been exercised
as provided within this Lease, then Landlord at any
time after the periods for exercise of rights as set
forth under Sections 17 . 5, 19. 1 and 19. 3 herein shall
have the following rights and remedies which are
cumulative:
W`-min addition to any and all other remedies in
law or in equity that Landlord may have against
Tenant, Landlord shall be entitled to sue Tenant
07/19/99, 9 : 37AM
10149121
-99-
for all damages (as limited by Section 15 . 2 ) ,
costs and expenses arising from Tenant ' s
committing an Event of Default hereunder and to
recover all such damages, costs and expenses,
including reasonable attorneys ' fees at both
trial and appellate levels-;
Tto restrain, by injunction, the commission of
or attempt or threatened commission of an Event
of Default and to obtain a decree specifically
compelling performance of any such term or
provision of the Lease-; and
(iii)—l'to terminate any and all obligations that
Landlord may have under this Lease, in which
event Landlord shall be released and relieved
from any and all liability under this Lease.
Section 19 . 3 Rights of L asehc1d Mortca2ees . Sublessees and
Subleasehold Mcrtaaaeesl9. 3 Rights of Leasehold Mortgagees.
Sublessees and Subleasehold Mortgagees .
(a) If Landlord shall have given notice to any Leasehold
Mortgagee, Sublessee or Subleasehold Mortgagee, as
required by Sections 17 . 4 and 19.2 (a) herein, such
Leasehold Mortgagee, Sublessee or Subleasehold
Mortgagee shall, have, and be subrogated to, any and
07/19/99, 9: 37AM
10149121
-100- `�
all rights of Tenant with respect to the curing a^�
such Event of Default but shall also have the right
extend the period of time for curing of any such Evert
of Default for an additional period ofth±- tpsixty
(-3$60) days from the date contained in the notice
given pursuant to Sections 17 . 4 and 19 . 2 herein, or in
the case of an Event of Default which cannot be cured
within said thi= tysixty (-3-fr60) day period, for such
additional period as, with all due diligence and in
good faith, is necessary to cure the Event of Default .
07/19/99, 9: 37AM + .
10149121 ,
(b) Irrespective of any other right a Leasehold Mop:-a-ee
(or Subleasehold Mortgagee) may have to maintain _his
Lease free from default and in the meantime to
foreclose its Leasehold Mortgage (or Subleasehold
Mortgage) , such Leasehold Mortgagee (or Subleasehold
Mortgagee) , as to any Event of Default of Tenant that
may not be cured by the payment of money and which is
not susceptible to curing by entry upon the Demised
Premises or otherwise, shall have the right to further
extend the period of time within which to cure such
Event of Default of Tenant for such additional period
J
as, with all due diligence and in good faith will
enable such Leasehold or Subleasehold Mortgagee to
institute foreclosure proceedings, apply for the
appointment of a receiver for the purpose, among other
things, of curing such Event of Default, if such is
susceptible to curing, and to acquire by foreclosure
Tenant ' s or Sublessee ' s interest in this Lease, to
effect a removal of Tenant or Sublessee from the
Demised Premises and, in the meantime and at the
earliest opportunity, to cure such Event of Default if
such is susceptible to curing. In the event the
leasehold estate created by this Lease or by a Sublease
07/19/99, 9 : 37AM +:
10149121
-102- �•
I ' I
hereunder shall have been duly acquired by suc:-
Leasehold Mortgagee (or .Subleasehold Mortgagee) or any-
purchaser at a foreclosure sale (hereinafter referred
to as "Foreclosure Purchaser") and such Event of
Default of Tenant shall have been duly cured, then the
notice of termination of this Lease based upon Tenant ' s
or Sublessee's failure to timely cure t±neiy-such Event
of Default of Tenant shall be deemed withdrawn,
terminated and of no further force or effect . In the
event, however, that such Leasehold Mortgagee (or
Subleasehold Mortgagee) or any Foreclosure Purchaser
fails to cure such Event of Default of Tenant within
the time periods set forth in this Section 19. 3,
Landlord reserves the right to (and must do so to
effect a termination) give such Leasehold Mortgagee (or
Subleasehold Mortgagee) or any Foreclosure Purchaser,
by registered or certified mail, return receipt
requested, thirty (30) days ' written notice of
termination of this Lease due to such failure by the
Leasehold Mortgagee (or Subleasehold Mortgagee) or any
Foreclosure Purchaser to cure such prior Event of
Default bytTenant. After the giving of such notice of
termination to such Leasehold Mortgagee (or
07/19/99, 9: 37AM
10149121
-103- 4
Subleasehold Mortgagee) or any Foreclosure Pu:c~:ase:
and upon the expiration of said thirty ( 30) days,
during which time such Leasehold Mortgagee (or
Subleasehold Mortgagee) , or Foreclosure Purchaser shall-
have failed to cure such default, this Lease and the
term thereof shall end and expire as fully and
completely as if the date of expiration of such thirty
(30) day period were the day herein definitely fixed
for the end and expiration of this Lease or Sublease
and the term thereof. If Tenant, Sublessee, such
Leasehold Mortgagee (or Subleasehold Mortgagee) , or any
Foreclosure Purchaser is in possession either
personally or by a receiver, Tenant, Sublessee, such
Leasehold Mortgagee (or Subleasehold Mortgagee) or any
Foreclosure Purchaser or such receiver as the case may
be, shall then quit and peacefully surrender the
Demised Premises to Landlord. Notwithstanding anything
contained herein to the contrary, such Leasehold
Mortgagee (or Subleasehold Mortgagee) shall not be
required to institute foreclosure proceedings if it is
able to acquire and does acquire Tenant ' s or
Sublessee' s interest in the leasehold estate by any
other means so long as such Leasehold or Subleasehold
07/19/99, 9 : 37AM
10149121
-104- ```W
Mortgagee fulfills a.11 other requirements =_
Article 19 and of Section 17 . 5 .
Section 19. 4 Surrender of Demised Premisesl9 . 4
Surrender of
r_, _
Demised premises .
Upon any expiration or termination in accordance with the
terms and conditions of this Lease, Tenant and all Sublessees
and Space Lessees shall quit and peacefully surrender the
Demised Premises to Landlord, except as provided under any
non-disturbance agreement provided by Landlord to any
Sublessee or Space Lessees .
Section 19 . 5 Riahts of Landlord After Terminationl9 . 5 Rights of
Landlord After Termination .
At any time or from time to time after such termination,
Landlord may relet the Demised Premises or any part thereof,
for such term or terms (which may be greater or less than the
period which would otherwise have constituted the balance of
the term of this Lease) and on such conditions (which may
include concessions or free rent) as Landlord, in its
discretion, may determine and may collect and
receive the rents therefojan Landlord shall in no way be
responsible or liable for failure to relet the Demised
Premises or any part therer for any failure to collect
any rent due for any such ting.
07/19/99, 9 : 37AM
10149121
-105- ��
Section 19. 6 No Waiver by Landlord19 . 6 No Waiver by Land ors ,.
No failure by Landlord to insist upon the `strict
performance of any of the terms of this Lease or to exercise
any right or remedy consequent upon a breach thereof, and no
acceptance by Landlord of full or partial rent during the
continuance of any such breach, shall constitute a waiver of
any such breach or of any of the terms 'of this Lease . None o`
the terms of this Lease to be kept, observed or performed by
Tenant, and no breach thereof, shall be waived, altered or
modified except by a written instrument executed by Landlord.
No waiver of any breach shall affect or alter this Lease, but
each of the terms of this Lease shall continue in full force
and effect with respect to any other then existing or
subsequent breach thereof. No waiver of any default of Tenant
hereunder shall be implied from any omission by Landlord to
take any action on account of such default, and no express
waiver shall affect any default other than the default
specified in the express waiver and then only for the time and
to the extent therein stated. One or more waivers by Landlord
shall not be construed as a waiver of a subsequent breach of
the same covenant, term or conditions .
Section 19.7 Event of Default of Landlord19.7 Event of Default of
Landlord.
07/19/99, 9: 37AM
10149121
-106- _. .
The provisions of Section 19 . 8 shall apply.._X.jto
following "Event of Default of Landlord" shall happen:
If default shall be made by Landlord in keeping,
observing or performing any of the duties imposed upon
Landlord pursuant to the terms of this Lease and such
default shall continue for a period of thirty (30)
days after written notice thereof from Tenant to
Landlord setting forth with reasonable specificity the
nature of the alleged breach; or, in the case of any
such default or contingency which cannot, with due
diligence and in good faith, be cured within thirty
(30) days, Landlord fails within said thirty (30) day
period to proceed promptly after such notice—and with
due diligence and in good faith to cure said Event of
Default.
Section 19 . 8 Failure to Cure Default by Landlordl9 . 8 Failure to
Cure Default by Landlord.
If an Event of Default of Landlord shall occur, Tenant, at any
time after the period set forth in Section 19.7 shall have the
following rights and remedies which are cumulative:
(a) In addition to any and all other remedies, in law or in
equity, that Tenant may have against Landlord, Tenant
shall be entitled to sue Landlord for all damages (as
07/19/99, 9 :37AM
10149121
-107- _. .
limited by Section 15 . 1 above
• I.. costs and excesses
arising from Landlord' s committing an Event of Default
hereunder and to recover all such damages, costs and
expenses, including reasonable attorneys ' fees at both
trial and appellate levels .
(b) To restrain, by injunction, the commission of or
attempt or threatened commission of an Event of Default
of Landlord and to obtain a decree specifically
compelling performance of any such term or provision of
the Lease.
(c) To terminate any and all obligations that Tenant may have
under this Lease, in which event Tenant shall be
released and relieved from any and all liability under
this Lease and shall surrender possession of the
Demised Premises to Landlord.
Section 19. 9 No Waiver by Tenant
19 . 9 No Waiver by Tenant.
Failure by Tenant to insist upon the d±.Le*_-t-strict
07/19/99, 9:37AM
10149121
-108- `�.
performance of any of the terms of this Lease or .o
exercise any right or remedy upon a breach thereof,
shall constitute a waiver of any such breach or of any
of the terms of this Lease. None of the terms of this
Lease to be kept, observed or performed by Landlord,
and no breach thereof, shall be waived, altered or
modified except by written instrument executed by
Tenant. No waiver of any default of Landlord hereunder
shall be implied from any omission by Tenant to take
any action on account of such default if such default
persists or is repeated, and no express waiver shall
affect any default other than the default specified in
the express waiver and then only for the time and to
the extent therein stated. One or more waivers by
Tenant shall not be construed as a waiver of a
subsequent breach of the same covenant, term or
condition.
ARTICLE 2020
Notices
Section 20.1 Addresses . 20. 1 Addresses .
All notices, demands or requests by Landlord to Tenant shall
be deemed to have been properly served or given, if addressed
to Tenant at
07/19/99, 9: 37AM
10149121
it
-109-
and to such other address and to the attention of such other
party as Tenant may, from time to time, designate by written
notice to Landlord. If Tenant at any time during the tern:
hereof changes its office address as herein stated, Tenant
will promptly give notice of same in writing to Landlord. The
Leasehold Mortgagee, Sublessee or Subleasehold Mortgagee shall
be deemed to have been properly served or given notice if
addressed to such party at the address furnished pursuant to
. the provisions of Sections 17 . 1 (c) and 17 . 3 above . All
notices, demands or requests by Tenant or by a Leasehold
Mortgagee, Sublessee or Subleasehold Mortgagee to Landlord
shall be deemed to have been properly served or given if
addressed to the Miami-Dade Transit Agency, Director, or , his
designee, Suite 910, 111 N.W. 1st Street, 9th Floor, Miami,
Florida, 33128, and
to such other addresses and to the attention of such other
parties as Landlord may, from time to time, designate by
written notice to Tenant. If Landlord at any time during the
ternt�?f' of . changes its office address as herein stated,
Landlord will promptly give notice of same in writing to
Tenant.
07/19/99, 9:37AM t '
10149121 it
-110- A*
Section 20 .2 Method of –Transmitting Notice
20 .2 -
I �
All such notices,`; demands or r quests (a "Notice") shall be –sent
by: (i) United St�tes re ' stere or certified mail, return receipt
requested,—(ii) hand elive (iii) nationally recognized
overnight courie or (ivi) provided the transmitting
electr nically� confirms receipt of the transmission by
the receiving nd the original of the Notice is sent by
one of the foregoing meang of transmitting Notice within 24 hours
of the transmission by All postage or other charges
incurred for transmitting of Notices shall be-paid by the party
sending same. Such Notices shall be deemed served or given on (i)
the date received, (ii) the date delivery of such Notice was
refused or unclaimed, or (iii) the date noted on the return receipt
or delivery receipt as the date delivery thereof was determined
impossible to accomplish because of an unnoticed change of address.
ARTICLE 2121
Quiet Enjoyment
Section 21 . 1 Grant of Quiet Enjoyment21 . 1 Grant of Quiet
Enjoyment.
Tenant, upon paying all rents, revenues and other M ±nmonies
herein provided for and performing in accordance with the
07/19/99, 9: 37AM `
10149121
-111- ``� -•
terms, agreements, and provisions of -This Lease, s` �«
peaceably and quietly have hold and a
4 Y ..r.�oy the
. Premises during the term of this Lease without interrupticn,
disturbance, hindrance or molestation by Landlord or by anyone
claiming by, through or under Landlord.
ARTICLE 22
Certificates by Landlord and Tenant
Section 22 . 1 Tenant Certificates22 . 1 Tenant Certificates .
Tenant agrees at any time and from time to time upon not less
than twenty (20) days ' prior written notice by Landlord, to
execute, acknowledge and deliver to Landlord a statement in
writing setting forth the rents, payments and other
monies then payable under the Lease, if then known;
certifying that this Lease is unmodified and in full force and
effect (or if there have been modifications, that the Lease is
in full force and effect as modified and stating the
modification) , and the dates to which the rents, payments and
other Mc,±nesmonies have been paid, and stating (to the best of
Tenant' s knowledge) whether or not Landlord is in default in
keeping, observing or performing any of the terms of this
Lease; and, if in default, specifying each such default
(limited to those defaults to which Tenant has knowledge) . It
is intended that any such statement delivered pursuant to this
07/19/99, 9:37AM
10149121 .
`4
-112-
Section 22 . 1 may be relied upon by Landlord or any prospect-- •:e
assignee, transferee or purchaser of the fee, but reliance
such certificate shall not extend to any default of Landlord
as to which Tenant shall have no actual knowledge .
Section 22 .2 Landlord Certifi r�22 , 2 Landlord Certificates .
:Landlord agrees at any time and from time to time upon not
:less than twenty (20) days ' prior written notice by Tenant or
5
by a Leasehold Mortgagee, Sublessee or Subleasehold Mortgagee
11Lt 2'to furnish a statement in writing setting forth the rents,
payments and other monies then payable under the Lease,
if then known; certifying that this Lease is unmodified and in
full force and effect (or if there shall have been
modifications that the Lease is in full force and effect as
modified and stating the modifications) and the dates to which
rents, payments and other Mc***e.-rmonies have been paid, and
stating whether or not to the best of Landlord' s knowledge,
Tenant is in default in keeping, observing and performing any
of the terms of this Lease; and, if Tenant shall be in
default, specifying each such default of which Landlord may
have knowledge. It is intended that any such statement
delivered pursuant to this Section 22 .2 may be relied upon by
any prospective assignee, transferee or purchaser of Tenant ' s
interest in this Lease, any prospective Sublessee or any
07/19/99, 9: 37AM
10149121
-113- _
Leasehold Mortgagee or Subleasehold Mortgagee or any assignee
of any such Leasehold or Subleasehold Mortgagee, but reliance
on such certificate may not extend to any default of Tenant as
to which Landlord shall have had no actual knowledge .
ARTICLE 23
Construction of Terms and Miscellaneous
Section 23 . 1 Severability
23 . 1 Severabili "V.
If any provisions of this Lease or the application thereof to
any person or situation shall, to any extent, be held invalid
or unenforceable, the remainder of this Lease, and the
application of such provisions to persons or situations other
than those as to which it shall have been held invalid or
unenforceable, shall not be affected thereby, and shall
continue valid and be enforced to the fullest extent permitted
by law.
Section 23 .2 Cantions23 .2 Cautions .
The Article headings and captions of this Lease and the Table
of Contents preceding this Lease are for convenience and.
reference only and in no way define, limit or describe the
scope or intent of this Lease nor in any way affect this
Lease.
07/19/99, 9: 37AM
10149121 « '
-114- '
Section 23 . 3 Relationship of Parties
23 . 3 Relationship of Parties .
This Lease does not create the relationship of principal and
agent or of mortgagee and mortgagor or of partnership or of
joint venture or of any association between Landlord and
Tenant, the . sole relationship between Landlord and Tenant
being than of Landlord and Tenant or lessor and lessee .
Section 23 . 4 Recording
23 . 4 Recording.
A Memorandum of —this Lease, or at Tenant ' s behest, a full
copy hereof, shall be recorded among the .Public Records of
Miami-Dade County, Florida, at the sole cost of Tenant .
Section 23 . 5 Construction
23 . 5 Construction.
All pronouns and any variations thereof shall be deemed to
refer to the masculine, feminine or neuter, singular or
plural, as the identity of the party or parties may require.
The parties hereby acknowledge and agree that each was
properly represented by counsel and this Lease was negotiated
and drafted at arms length so that the judicial rule of
07/19/99, 9 : 37AM
10149121
-115- ��
construction to the effect that a legal document _hail �e
construed against the draftsman shall be inapplicable _o t:,_;
Lease which has been drafted by counsel for both Landlord and
Tenant .
Section 23 . 6 consents
6
Consents--.
Whenever in this Lease the consent or approval of Landlord or
Tenant is required, such consent or approval :
(a) shall not be unreasonably or arbitrarily withheld,
conditioned, or delayed unless specifically provided to
the contrary, and shall not require a fee from the
party requesting same;
(b) shall not be effective unless it is in writing,, and
(c) shall apply only to the specific act or transaction so
approved or consented to and shall not relieve Tenant
or Landlord, as applicable, of the obligation of
obtaining the other's prior written consent or approval
to any future similar act or transaction.
Section 23.7 Entire Agreement
23 . 7 Entire Aareement
This Lease contains the entire agreement between the parties
I
07/19/99, 9:37AM
10149121
hereto and shall not be modified or amended in -an-per
except by an instrument in writing executed by the parties
hereto.
Section 23 . 8 Successors and Assigns
23 . 8 Successors and ASs; ans ,
The terms herein contained shall bind and inure to the benefit
of Landlord, its successors and assigns, and Tenant, its
successors and assigns (including Sublessees, Leasehold
Mortgagees, Subleasehold Mortgagees and Space Lessees as
appropriate and applicable) , except as may be otherwise
provided herein.
Section 23 . 9 System Plans
23 . 9 System Plans .
Landlord agrees, at the request of Tenant, to make available
to Tenant for inspection all plans, specifications, working
drawings and engineering data in the possession of Landlord,
or available to it, relating to the Station, the System and
other facilities of Landlord in Miami-Dade County, it being
. understood and agreed that Tenant will reimburse Landlord for
any duplication costs incurred in connection therewith and
Landlord assumes no responsibility or liability for the
07/19/99, 9 : 37AM
10149121
-117- `�
information obtained pursuant to this Section.
Section 23 . 10 Hclidays23 . 10 Holidays .
It is hereby agreed and declared that whenever the day on
which a payment due undgr the terms of this Lease, is—±c ber
madeor the last day on which a response is due to a notice, or
the last day of a cure period, falls on a day which is a legal
holiday in Miami-Dade County, Florida, or on a Saturday or
Sunday, itsuch due date or cure period expiration date shall
be postponed to the next following business day. Any mention
in this Lease of a period of days for performance shall mean
calendar days .
Section 23 . 11 Exhibits
23 . 11 Exhibits .
Each Exhibit referred to in this Lease has been initialed by
the parties and forms an essential part of this Lease. The
Exhibits, even if not physically attached, shall be treated as
if they were part of the Lease.
Section 23 . 12 Brokers
23 . 12 Brokers .
Landlord and Tenant hereby represent and agree that no real
estate broker or other person is entitled to claim a
07/19/99, 9 : 37AM
10149121
commission as a result of the execution and delivery
Lease .
Section 23 . 13 Protest payments
23 . 13 Protest Payments ,
If at any time a dispute shall arise as to any amount or sum
of money to be paid by Tenant to Landlord under the provisions
of this Lease, Tenant shall have the right to make payment
"under protest" and such payment shall not be regarded . as a
voluntary payment, and there shall survive the right on the
part of Tenant to seek the recovery of such sum, and if it
should be adjudged that there was no legal obligation on
Tenant to pay such sum or any part thereof, Tenant shall be
entitled to recover such sum or so much thereof as it was not
legally required to pay under the provisions of this Lease;
and if at any time a dispute shall arise between the parties
hereto as to any work to be performed by either of them under
the provisions of this Lease, the party against whom the
obligation to perform the work is asserted may perform such
work and pay the cost thereof "under protest" and the
performance of such work shall in no event be regarded as a
voluntary performance and there shall survive the right upon
07/19/99, 9:37AM
10149121 r
-119- '
the part of said Tenant and/or Landlord to seek the recovery
of the cost of such work, and if it shall be adjudged that
there was no legal obligation on the part of said Tenant
and/or Landlord to perform the same or any part thereof, said
Tenant and/or Landlord shall be entitled to recover the cost
of such work or the cost of so much thereof as Tenant or
Landlord was not legally required to perform under the .
provisions of this Lease.
ARTICLE 24
Representations and Warranties
Section 24 . 1 Landlord' s Representations and Warranties24 . 1
Landlord' s Re2resenrarions and Warranties .
Landlord hereby represents and warrants to Tenant that:
(a) It has full power and authority to enter into this
Lease and perform in accordance with its terms and
provisions and that the parties signing this Lease on
behalf of Landlord have the authority to bind Landlord
and to enter into this transaction and Landlord has
taken all requisite action and steps to legally
authorize it to execute, deliver and perform pursuant
to this Lease.
(b) Landlord will deliver possession of the Land to Tenant
free and clear of any and all tenancies�4 occupancies
07/19/99, 9: 37AM
10149121 � .
-120- `�. _
c� of every nature whatsoever, whether by Mia.^,ti-_Dace
�✓ County or otherwise, occupancies by Miami-Dade Count.,,
` u -
�� and violations of Miami-Dade County of Laws and
Ordinances, except as may be approved by Tenant in
writing, and subject only to the rights reserved herein
to Landlord.
(c) Throughout the term of this Lease, Landlord will
endeavor to continue transit service to and from the
Station on a daily basis. The parties acknowledge that
service disruptions occur occasionally and such
disruptions shall not be considered termination of
service under sai-dthis Lease. If the Station is
damaged or destroyed and as a result trains cannot stop
thereat, the foregoing sentence shall not apply during
the period of repair and rebuilding done in accordance
with Section 16.2 . Tenant acknowledges that in
accordance with Florida Statutes Section 125 . 411 (3)
(1990) Landlord does not warrant the title or represent
any state of facts concerning the title to the Demised
Premises .
Section 24 .2 Tenant' s Representations and Warranti =24 .2 Tenant ' s
Representations and Warranties .
Tenant hereby represents and warrants to Landlord that it has
07/19/99, 9: 37AM
10149121 ? '
-121-
}
full power and authority to enter into this Lease and perform
in accordance with its terms and provisions and that t!:e
parties signing this Lease on behalf of Tenant have the
authority to bind Tenant and to enter into this transaction
and Tenant has taken all requisite action and steps to legally
authorize it to execute, deliver and perform pursuant to this
Lease.
ARTICLE 2525
Eal al CRBort'_ 'ni-t-V-
Tenant will not discriminate against any employee or applicant
for employment because of race, religion, color, sex, age,
ancestry, marital status, handicap, place of birth, or
national origin. The Tenant shall take affirmative action to
ensure that applicants are employed and that employees are
treated during their employment, without regard to their race,
religion, color, sex, age, ancestry, marital status, handicap,
place. of birth or national origin. Such actions shall
include, but not be limited to, the following: employment;
upgrading; transfer or demotion; recruitment or recruitment
advertising; layoff or termination; rates of pay or other.
forms of compensation and selection for training, including
apprenticeship. Tenant agrees to post in conspicuous places,
available to employees and applicants for employment notices
07/19/99, 9:37AM
10149121
-122- �,
to be provided by Miami-Dade County sett-^g 5v-th tie
provisions of this Equal Opportunity clause . Tenant mil:
comply with all of the following statutes, rules, regulations
and orders to the. extent that these . are made applicable by
virtue of the grant . to Landlord under the Urban Mass
Transportation Act of a Section 3 capital grant for
Metromover:
(i) all regulations of the U. S . . Department of
Transportation;
(ii) all applicable provisions of the Civil Rights Act of
1964 ;
(iii) Executive Order 11246 of September 24, 1964 as amended
by Executive Order 11375;
(iv) Executive Order 11625 of October 13, 1971;
(v) the Age Discrimination Employment Act effective
June 12, 1968 ;
(vi) the rules, regulations and orders of the Secretary of
Labor;
(vii) Florida Statute 112 . 042; and
(viii) Articles 3 and 4 of Chapter 11A of the Code of
Metropolitan Miami-Dade County.
ARTICLE 2626
Disadvantaged Business Enterarise ("DBE")
07/19/99, 9: 37AM
10149121
-123-
Section 26 . 1 Poliry26. 1 Policy.
It is the Policy of the Department of Transportation and
Metropolitan Miami-Dade County that DBE contractors as defined
in 49 CFR Part 23, as amended, shall have the maximum
opportunity to participate in the performance of contracts for
development or construction of the Demised Premises, the
acquisition of which by Landlord was financed in part with
Federal funds .
Section 26.2 DBE Obligation26.2 DBE Obligation.
Tenant therefore agrees that DBE contractors as
defined in 49 CFR Part 23, as amended, have the
opportunity to participate in the performance of contracts and
subcontracts for the design, construction, development,
operation, or maintenance of the Demised Premises . In this
regard, Tenant shall take all necessary and reasonable steps
in accordance with 49 CFR Part 23, as amended, to ensure that
DBE' s . have the ifta*i=q opportunity to compete for and perform
such contracts. Tenant shall not discriminate on the basis of
race, color, national origin, or sex, in the award and
performance of such contracts. All determinations of
compliance or noncompliance of Tenant with the DBE
requirements of this Lease, and of the appropriate
consequences of noncompliance shall be made by Miami-Dade
07/19/99, 9:37AM
10149121
-124- `�.
County. All such determinations shall be final and binding,
except that an appeal from an adverse decision by Miami-Dade
County may be by an affected DBE contractor to the U.S.
Department of Transportation to the extent provided under 49
CFR Part 23, Section 23 .55 . Nothing in this paragraph shall
be construed to diminish the legal responsibility or authority
of Miami-Dade County.
Section 26. 3 Tenant ' s Plan26. 3 Tenant ' s Plan.
Tenant agrees to use sufficient reasonable efforts to carry
out Tenant ' s Disadvantaged Business Enterprise and Utilization
Plan, a copy of which is attached hereto as Exhibit
Tenant agrees to carry out this plan to the fullest extent
consistent with the efficient performance of the Lease.
Section 26. 4 Remedies26. 4 Remedies .
If at any time Miami-Dade County has reason to believe that
Tenant is in violation of its obligation under the DBE Plan,
Miami-Dade County may, in addition to pursuing any other
available legal remedy, under this Lease commence proceedings
to impose sanctions . Such sanctions may include, but not be
limited to the termination of the Lease in whole or in part,
pursuant to Article 19, unless Tenant is able to demonstrate
compliance with its obligations under its DBE plan, and the
denial to Tenant of the right to participate in any further
07/19/99, 9:37AM
10149121
-125- ,
contracts with Miami-Dade County for a period of no longer
than three years . No such sanctions shall be imposed by
Miami-Dade County upon Tenant except pursuant to an action
duly taken in accordance with due process of law.
Section 26 . 5 Report,-26.5 Reiporta.
Tenant shall submit DBE activity reports on a monthly basis
during any period of construction of a Suilding (as
differentiated from minor construction. activity) . The DBE
activity reports shall reflect Tenant ' s subcontracting and
purchasing activities with DBE' s and shall be submitted in the
forms provided for the purpose by Miami-Dade County. The
monthly reports are to be submitted, to the County Manager,
attention of the Director, Office of the Fair Employment
Practice/MDTA or his/her designee, on or before the tenth
working day of the month following the month the report
covers . During nonconstruction periods, DBE progress reports
may be submitted as part of Tenant ' s annual report to Miami-
Dade County.
Section 26. 6 Discrimination Proh ' bite 26. 6 Discrimination
Prohibited.
No person shall be excluded from participation in, denied the
benefits of,_ or otherwise discriminated against in connection
with the award and performance of any contract covered by this
07/19/99, 9 : 37AM
10149121
-126-
. :� _ .
part, on the grounds of race, color, disability,
origin or sex. (49 CFR Part 23 .7)
J
IN WITNESS WHEREOF, Landlord has caused this Lease to be
executed in its name by the County Manager; as authorized by the
Board of County Commissioners, and Tenant has caused this Lease to
be executed by its duly authorized representative all on the day
and year first hereinabove written.
MIAMI-DADE COUNTY, a political LANDLORD
subdivision of the State
of Florida
ATTEST: BY ITS BOARD OF COUNTY COMMISSIONERS
HARVEY RUVIN, CLERK
By: By:
07/19/99, 9: 37AM
10149121
-127- _• .
TENANT
Signed in the presence of: Hometown Station, Ltd. ,
/ Florida
By:
STATE OF FLORIDA ) SS:
COUNTY OF MIAMI-DADE )
BEFORE ME, the undersigned authority, this day personally appeared
well known to me to be — as
of , named as Tenant in the
foregoing South Miami Joint Development Lease, and that he
acknowledged executing the same in the presence of two subscribing
witnesses freely and voluntarily under authority duly vested in him
by said —. WITNESS my hand and official seal at Miami, Miami-Dade
County, Florida, this day of 1999,
NOTARY PUBLIC, State of Florida
My Commission Expires :
07/19/99, 9:37AM
10149121
-128- " �
� 0,8%25199 15:40 _ $305 372 6017 NDTA [it 002
AN
ti
M I A M I - D A D E
August 25, 1999 Via Facsimile
(305)663-6345
Ms_Diana Moms
Assistant City Manager
City of South Miami
6130 Sunset Drive
South Miami,Florida 33143
Re: South Miami Station Negotiation Committee Meeting
Dear Ms.Moms:
Please be advised that the next South Miami Station Negotiation Committee meeting has been
rescheduled for August 30, 1999,at 1030am_ The location of the meeting has not changed-
If you have any questions,please contact me at(305)375-1507_
Sincerely,
1 J
F Talleda
�C " f;Joint Development and Leasing
Office of Management Services
c: Alberto Parjus
Juan Cueto
Stephen P_Clark Center, 111 Northwest First Sweet-Suite 910,Miatni,FL 33128-1999
08/25/99 15:39 '8`305 372 6017 MDTA Q001
FACSIMILE TRANSMITTAL SHEET
To: I-�5,
CO%fP.k%Y: DATE:
vu
FUC\L'M8 TOTAL NO.OF PAGES MCLCDING Covm.
C3 15 -,Y-173
PHONE NUMBER: sE-DEWS REFERI'NCE xLIi m
R
YOUR"",RENc:E VL,%WER:
❑Z.-RGE.%'T E3 FOR R£t"IEW. ❑PL.EAs£CO:mmbN.'T ❑PL-sSE REPLY 13 pt it s E RECYCLE
FIOTES,'CO�Q4'��TS:
g � ���� E
rr� lr .� �� 4 �,r� �,f� e 5
` AUG 2 6 1999 � q�ER`S OFFICE
K Milli
iolo Dade Nfisif . I CITE
A