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Ord No 34-23-2485ORDINANCE NO. 34-23-248S AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA, APPROVING A FRANCHISE AGREEMENT WITH AMERICAN WASTE SYSTEMS, LLC TO LEASE A PORTION OF THE CITY-OWNED PROPERTY LOCATED OUTSIDE THE CITY'S JURISDICTION AT 479S SW 75 A VENUE FOR THE OPERATION OF AN INDOOR WASTE PROCESSING AND LOADING FACILITY; AUTHORIZING THE CITY MANAGER TO NEGOTIATE AND EXECUTE A FRANCfflSE AGREEMENT RELATING TO THE LEASE OF THE PROPERTY; PROVIDING FOR IMPLEMENTATION, CORRECTIONS, SEVERABILITY, AND AN EFFECTIVE DATE. WHEREAS, the City of South Miami (the "City") is the owner of that certain parcel of land located in unincorporated Miami-Dade County at4795 SW 75°1 Avenue (the "Property"); and WHEREAS, the Property is zoned within the Miami-Dade County IU-2, Industrial, Heavy Manufacturing District; and WHEREAS, American Waste Systems, LLC (the "Franchisee") has proposed entering into a Franchise Agreement for the ground lease of a portion of the Property to operate an indoor waste processing and loading waste-to-rail facility (the "Facility") in exchange for Base Rent and Additional Rent as set forth in the Ground Lease (the "Ground Lease"); and WHEREAS, Section 4, "Franchise," of Article VI of the City Charter provides that franchises, including any and all agreements of whatever nature, that grant a right to use real property owned by the City, including leases, with a tem1 greater than three {3) years with two (2) one ( l) year extensions must be awarded at a duly noticed public hearing pursuant to an ordinance adopted by a 4/5 vote of all members of the City Commission; and WHEREAS, the City Commission desires to approve the Ground Lease with the Franchisee for the lease of a portion of the Property to operate the Facility and authorize the City Manager to negotiate and execute the Ground Lease with the Franchisee, in substantially the form attached hereto as Exhibit '~A"; and WHEREAS, on November 21, 2023, the Mayor and City Commission conducted a duly noticed public hearing as required by law and approved the ordinance on first reading; and WHEREAS, on December 19, 2023, the Mayor and City Commission conducted a duly noticed public hearing as required by law and approved the ordinance on second reading. NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA, AS FOLLOWS: Page 1 of2 Ord. No. 34-23-2485 Section 1. Recitals. The above-stated recitals are true and correct and are incorporated herein by this reference. Section 2. Approval. The City Commission hereby approves the Ground Lease with the Franchisee for th e lease of a portion of the Property to operate the Facility. Section 3. Authorization. The City Commission hereby authori zes the C ity Manager to negotiate and execute the Ground Lease with th e Franchisee in substantially the form attached he reto as Exhibit "A," subject to th e approval of the City Attorney as to form , content, and legal sufficiency. Section 4. Implementation. That the City Manager and C ity Attorney are authorized to take any and all actions necessary to implement the Ground Lease and the purposes of thi s Ordinance, including acting as th e City's authorized representative for a ll matters related to the Ground Lease and Facility. Section 5. Corrections. Conforming language or technical scrivener-type con-ections m ay be made by the City Attorney for a ny conf01ming amendments to be incorporated into the final Ordinance for signature. Section 6. Severability. If any section, clause, sentence, or phrase of this Ordinance is for any reason held inv alid or unconstitutional by a court of competent jurisdiction, the holding shall not affect the validity of the re maining portions of this Ordinance. Section 7. adoption. Effective Date. This Ordinance shall become effective immediately upon PASSED on fi.rst read ing on the 2 1st day of November, 2023. PASSED AND ADOPTED on second reading on the 19th day of December, 2 023. READ AND APPROVED AS TO FORM, LANGUAGE, LEGALITY AND EXECUTION THEREOF & BIERMAN, P.L. CITY ATTORNEY ELFMANCOLE ~ YOR COMMISSION VOTE: 5-0 Mayor Fernandez: Yea Vice Mayor Bonich: Yea Commiss ioner Calle: Yea Commi ss ioner Liebman: Yea Commi ss ioner Corey: Yea Page 2 of2 Agenda Item No:8. City Commission Agenda Item Report Meeting Date: December 19, 2023 Submitted by: Nkenga Payne Submitting Department: City Manager Item Type: Ordinance Agenda Section: Subject: AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA, APPROVING A FRANCHISE AGREEMENT WITH AMERICAN WASTE SYSTEMS, LLC TO LEASE A PORTION OF THE CITY-OWNED PROPERTY LOCATED OUTSIDE THE CITY’S JURISDICTION AT 4795 SW 75 AVENUE FOR THE OPERATION OF AN INDOOR WASTE PROCESSING AND LOADING FACILITY; AUTHORIZING THE CITY MANAGER TO NEGOTIATE AND EXECUTE A FRANCHISE AGREEMENT RELATING TO THE LEASE OF THE PROPERTY; PROVIDING FOR IMPLEMENTATION, CORRECTIONS, SEVERABILITY, AND AN EFFECTIVE DATE. 4/5 Suggested Action: Attachments: CC Memo 12-19-23 Commission Meeting SR 47V0234-Ordinance Approving Franchise Agreement with American Waste Systems for Indoor Waste Processing - CAv3.DOCX Ground Lease Agreement 12-13-23 SR MDBR Ad.pdf MH Ad.pdf MH Ad.pdf 1 CITY OF SOUTH MIAMI OFFICE OF THE CITY ATTORNEY INTER-OFFICE MEMORANDUM TO:The Honorable Mayor, Vice Mayor, and Members of the City Commission FROM:Lillian Arango and Tony Recio, City Attorneys CC:Genaro “Chip” Iglesias DATE:December 19, 2023 City Commission Meeting SUBJECT:AN ORDINANCE OFTHE MAYOR AND CITY COMMISSION OF THE CITY OFSOUTH MIAMI, FLORIDA, APPROVING A FRANCHISE AGREEMENT WITH AMERICAN WASTE SYSTEMS, LLC TO LEASE A PORTION OF THE CITY-OWNED PROPERTY LOCATED OUTSIDE THE CITY’S JURISDICTION AT 4795 SW 75 AVENUE FOR THE OPERATION OF AN INDOOR WASTE PROCESSING AND LOADING FACILITY; AUTHORIZING THE CITY MANAGER TO NEGOTIATE AND EXECUTE A FRANCHISE AGREEMENT RELATING TO THE LEASE OF THE PROPERTY; PROVIDING FOR IMPLEMENTATION,CORRECTIONS,SEVERABILITY,ANDANEFFECTIVEDATE. The accompanying Ordinance and Ground Lease Agreement were prepared and placed on the agenda at the request of the City Commission for consideration. Background Section 4, “Franchise,” of Article VI of the City Charter provides that franchises, including agreements that grant a right to use real property owned by the City, including leases, with a term greater than three (3) years with two (2) one (1) year extensions must be awarded at a duly noticed public hearing pursuant to an ordinance adopted by a 4/5 vote of all members of the City Commission. At a regular City Commission meeting on October 17, 2023, the City Commission discussed a proposal to lease a portion of the property located at 4795 SW 75th Avenue (the “City Property) to American Waste Systems, LLC (“American Waste”) for American Waste to operate an indoor waste processing and loading facility (the “Facility”) for processing municipal solid waste, construction and demolition materials, and/or storm debris at the Facility, in connection with Miami-Dade County’s comprehensive solid waste disposal strategy. The City Commission directed the city manager to begin lease negotiations for the lease of the City Property on terms acceptable to the City with the understanding that American Waste will reimburse the City the cost of an appraiser and reasonable attorney’s fees. The lease was presented to the City Commission and approved at first reading on November 21, 2023. On December 5,2023 the City Commission deferred the item to the December 19, 2023, 2 CITY OF SOUTH MIAMI OFFICE OF THE CITY ATTORNEY INTER-OFFICE MEMORANDUM pending Miami-Dade County’s consideration of waste solutions. The lease is now presented for second reading after being revised based on continued negotiations with American Waste. Summary of Ground Lease Terms The Ground Lease Agreement terms are summarized as follows: Premises: o Depicted in yellow below. Commencement Date: o The earlier of: the completion of the Permit Approval Period (maximum of 24 months); or Tenant’s receipt of a Certificate of Occupancy for the Facility. Term: o The original Lease term of twenty (20) years, beginning on the Lease Commencement Date. o Maximum of three (3) extensions of ten (10) years each. Permitted Use: o The Premises may be used for purposes of designing, constructing, operating, and managing a waste-to-rail transfer facility (the “Facility”) and related infrastructure. 3 CITY OF SOUTH MIAMI OFFICE OF THE CITY ATTORNEY INTER-OFFICE MEMORANDUM o American Waste would be granted the right “to construct, at its sole expense, certain improvements related to the construction of an indoor waste processing and loading facility, rail spur, scale house, and all equipment and infrastructure necessary to operate a waste-to-rail transfer facility with a minimum processing and loading capacity of 500,000 tons per year, along with all related site preparation and grading and all conditions and infrastructure necessary to satisfy the requirements of all Governmental Requirements and Law, including without limitation, environmental and safety regulatory requirements.” Due Diligence/Preconditions: o 45 days for Tenant to perform due diligence and inspections, including environmental assessments to identify any existing conditions. o 120 days for agreement with County to recognize Premises as solid waste disposal site and to obtain County approval for City to tip at the Facility for the life of the Lease. o Two years for all permits, including construction and operation permits, and confirmation that it is a FEMA approved debris site with cost of debris removal eligible for reimbursement. The Facility: o Indoor facility constructed at the sole cost of American Waste. o Must Include an opaque fence at least 10-feet high along the western boundary of the Premises to separate the Premises from the remaining City Land and mitigate noise, odor, and other impacts to the remainder of the City Land and surrounding properties. o The Premises shall be accessed solely from S.W. 74th Avenue, or alternative location if approved by the City. o Tenant shall implement odor control measures as per industry standards. 4 CITY OF SOUTH MIAMI OFFICE OF THE CITY ATTORNEY INTER-OFFICE MEMORANDUM Base Rent: o Per current appraisal performed, Tenant pays $19,612.50 per month as Base Rent. o Tenant is also responsible for applicable sales tax. o Base Rent increases by 5% every tenth anniversary of the Commencement Date. o Every 10 years, an appraisal may trigger further Base Rent increases, performed by Landlord's appraiser at Tenant's expense. Additional Rent: o Tenant pays Additional Rent monthly, based on waste tonnage processed at the Facility. o $1 per ton for all waste (county, municipal, or public agency, and commercial/private waste ) processed at the Facility that exceeds waste tipped by the City at the Facility. o Calculation resets each January 1st. Right to Audit: o Tenant must provide a certified statement of waste tonnage processed monthly, starting one month after the Commencement Date. o Annually, Tenant must submit an accounting of the prior year's waste tonnage, Additional Rent calculation, and payment to Landlord, verified by an independent CPA. o “All records of Tenant pertaining to Additional Rent, Monthly Figures and tonnage of aggregate waste must be made available locally, at the expense of the Tenant, for examination, inspection and audit by a CPA retained by the Landlord, the City’s 5 CITY OF SOUTH MIAMI OFFICE OF THE CITY ATTORNEY INTER-OFFICE MEMORANDUM Finance Department or Internal Auditor, or any other designee of the Landlord for compliance with this Article 3.” o Tenant to provide $50,000 variance reserve letter of credit to cover Additional Rent deficiencies. End of Term: o Tenant responsible for cleaning site and environmental issues. o Facility to be demolished or removed, at City’s option. o Security: $500,000 bond or letter of credit to fund demolition and restoration at end of Term to restore the Premises to their original condition prior to the Commencement Date. 6 1 GROUND LEASE AGREEMENT THE CITY OF SOUTH MIAMI, A FLORIDA MUNICIPAL CORPORATION LANDLORD AND AMERICAN WASTE SYSTEMS, LLC, A FLORIDA LIMITED LIABILITY COMPANY TENANT 10 2 GROUND LEASE AGREEMENT THIS GROUND LEASE AGREEMENT (the “Lease”) is dated as of the ___ day of _________________, 2023 (the “Execution Date”), by and between The City of South Miami, a Florida municipality, and/or its assigns, having its address for notice purposes at 6130 Sunset Drive, South Miami, FL 33134, as landlord (“Landlord” or “City”) and American Waste Systems, LLC, a Florida limited liability company, and its successors and/or assigns, having its address for notice purposes at 2600 South Ocean Blvd., Apartment 8D, Boca Raton, FL 33432, as tenant (“Tenant”). RECITALS WHEREAS, the City of South Miami (the “City”) is the owner of that certain parcel of land located in unincorporated Miami-Dade County at 4795 SW 75th Avenue (the “City Land”); and WHEREAS, the City Land is zoned within the Miami-Dade County IU-2, Industrial, Heavy Manufacturing District; and WHEREAS, Section 4, “Franchise,” of Article VI of the City Charter provides that franchises, including any and all agreements of whatever nature, that grant a right to use real property owned by the City, including leases, with a term greater than three (3) years with two (2) one (1) year extensions must be awarded at a duly noticed public hearing pursuant to an ordinance adopted by a 4/5 vote of all members of the City Commission; and WHEREAS, the City Commission, at a duly noticed public hearing pursuant to an ordinance adopted by a 4/5 vote of all members of the City Commission, approved entering into this Lease with Tenant as a Franchise Agreement, pursuant to Article VI, Section 4, of the City Charter, for the lease of a portion of the City Land to Tenant (the “Premises”, as hereinafter defined) to operate an indoor waste processing and loading facility (the “Facility”, as hereinafter defined); and WHEREAS, the City Commission found that the ground lease of the Premises to Tenant for the Facility serves a public purpose that benefits the City, Miami Dade County and the State of Florida by providing necessary waste disposal by means of a waste-to- rail transfer station; and WHEREAS, Landlord desires to lease to Tenant the Premises for public and municipal purposes in the public interest; and WHEREAS, pursuant to the terms and conditions of the L ease, Tenant shall process municipal solid waste, construction and demolition materials, and/or storm debris at the Facility, in connection with providing processing and disposal services to local governments in the State of Florida. NOW, THEREFORE, in consideration of the mutual covenants contained in this Lease, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 11 3 AGREEMENT Landlord and Tenant, for themselves, their legal representatives, successors, and permitted assigns, hereby agree as follows: ARTICLE 1. BASIC TERMS AND DEFINITIONS; RULES OF CONSTRUCTION Section 1.01. The following basic terms, as used in this Lease and in all amendments to the Lease (unless otherwise specified or unless the context otherwise requires), shall have the meanings set forth below: Additional Rent: The Additional Rent set forth in Section 3.03. Affiliate: Any person that directly or indirectly controls, is controlled by, or is under common control with the designated person or any officer, director, managing or general partner, or member of such designated person. Base Rent: The Base Rent set forth in Section 3.01. Business Days: Monday through Friday, excluding holidays observed by the State of Florida, the federal government of the United States, and/or the labor unions servicing the building. City Land: The parcel of land located at 4795 SW 75 Avenue, in the County of Miami-Dade, State of Florida, Folio No. 30-4023-000-0194, which land is more particularly described in Exhibit A attached hereto. Commencement Date: The earlier of (i) the completion of the Permit Approval Period set forth in Section 2.03(b) or (ii) Tenant’s receipt of a Certificate of Occupancy for the Facility. Effective Date” shall be January 1, 2024. Expiration Date: The last day of the month in which occurs the twentieth (20th) anniversary of the Commencement Date, as same may be extended pursuant to Article 17. Facility: The improvements Tenant intends to construct on the Premises, and further described in Section 5.01, which will subsequently be used by Tenant for purposes of operating a waste- to-rail transfer station and related operations and infrastructure. Governmental Approval(s). Any permit, approval, authorization, certification, or other documentation required by a Governmental Authority for the Permitted Use and Facility. Governmental Authority(ies). Any federal, state, county, municipal or other governmental or regulatory authority, agency, board, department, bureau, body, commission, or instrumentality, or quasi-governmental authority, and any court, arbitrator, or other administrative, judicial or quasi-judicial tribunal, or any other public or quasi-public authority, having jurisdiction over the Premises or the matter at issue. Governmental Requirement. Any Law, enactment, statute, code, ordinance, rule, regulation, judgment, decree, writ, injunction, order, permit, certificate, license, authorization, agreement, 12 4 or other direction or requirement of any Governmental Authority now existing or hereafter enacted, adopted, promulgated, entered, or issued. Improvement(s): All buildings and other improvements now located, or hereafter erected, on the Premises, including the Facility and improvements to be constructed by Tenant on the Premises(Construction defined in Section 5.01 below), if applicable, together with all fixtures now or in the future installed or erected in or upon the Premises or such improvements and owned or leased by Tenant (including equipment, elevators, escalators, machinery, pipes, conduit, wiring, data and security systems, septic systems, wells, heating, ventilation and air conditioning systems). Including: “Including” means “including but not limited to.” “Includes” means “includes without limitation.” Initial Term: The original Lease term of twenty (20) years, beginning on the Lease Commencement Date, granted to Tenant under the Lease prior to the Extension Term(s) set forth in Section 15.01. Institutional Lender: A savings and loan association, savings bank, commercial bank or trust company, insurance company, educational institution, welfare, pension or retirement fund or system, any other entity subject to supervision and regulation by the insurance or banking departments of the State of Florida or by a department or agency of the United States. Notwithstanding the foregoing, no Affiliate of Tenant shall be deemed an Institutional Lender. Law: Any present or future law, statute, ordinance, regulation, code, judgment, injunction, arbitral award, order, rule, directive, proclamation, decree, common law or other requirement, ordinary or extraordinary, foreseen or unforeseen, of the Federal or any state or local government, or any political subdivision, arbitrator, department, commission, board, bureau, agency or instrumentality thereof, or of any court or other administrative, judicial or quasi - judicial tribunal or agency of competent jurisdiction, or of any other public or quasi-public authority or group, having jurisdiction over the Premises; and any reciprocal easement, covenant, restriction, or other agreement, restriction or easement of record affecting the Premises as of the date of this Lease or subsequent thereto. Law shall include the Charter and Code of the City of South Miami. Leasehold Interest. Tenant’s interest in the Premises and the Premises Improvements. Leasehold Mortgage. A mortgage given by Tenant or by any permitted successors or assignees of Tenant to an Institutional Lender that is secured by Tenant’s (or Tenant’s permitted successors’ or assignees’) leasehold interest in the Premises. Liabilities: All losses, claims, suits, demands, costs, liabilities, and expenses, including reasonable attorneys’ fees, penalties, interest, fines, judgment amounts, fees, and damages, of whatever kind or nature. Permitted Use: The Premises may be used for purposes of designing, constructing, operating, and managing a waste-to-rail transfer facility (the “Facility”) and related infrastructure. Person: Any individual, corporation, partnership, firm, or other legal entity. Personal Property: All furniture and other personal property owned or leased by Landlord or Tenant or any Affiliate of Landlord or Tenant, located upon the Premises and used in the operation of the Premises, excluding rail cars, trucks, and other vehicles. 13 5 Premises: That portion of the City Land identified in the attached Exhibit “B”, together with the Improvements, and all rights, privileges, easements, and appurtenances to the Premises, excluding all right, title and interest of Landlord, if any, in and to any development rights, in and to any land lying in the bed of any road, highway, street or avenue adjoining the Premises to the center line thereof. References in this Lease to the “Premises” shall be construed as if followed by the phrase “or any part thereof” unless the context otherwise requires. Rent: The Base Rent and Additional Rent due under this Lease, and subject to adjustment, as set forth in Article 3. Term: The Initial Term, and any Extension Term(s). Unavoidable Delays: Delays due to existing conditions, strikes, lockouts, acts of God, inability to obtain labor or materials, government restrictions, enemy action, terrorist attack, civil commotion, fire or other casualty, shortages of materials, or other causes of a like nature beyond the reasonable control of Landlord or Tenant, as the case may be. ARTICLE 2. LEASE OF PROPERTY; “AS IS” CONDITION; COMMENCEMENT DATE AGREEMENT; TERM OF LEASE; PERMITTED USE Section 2.01. Lease of Premises; Term. Subject to the terms and conditions of this Lease, Landlord leases to Tenant, and Tenant leases from Landlord, the Premises for the Initial Term, that shall commence on the Commencement Date and end on the Expiration Date (as such term may be extended from time to time pursuant to Article 15), subject to the terms, covenants, or conditions of this Lease. Section 2.02. Permitted Use of the Premises. During the Lease Term, Tenant may use the Premises for the Permitted Use and in accordance with applicable Law at the time of such use. Any use of the Premises other than for the Permitted Use is prohibited. (a) Restrictions on Use. Tenant shall not use the Premises or any portion of it, or permit the use of all or any portion of the Premises for any of the following: any unlawful or illegal business, use or purpose; any business, use or purpose which is immoral or disreputable; any hazardous use; any use which is determined by a court or administrative tribunal to constitute a public or private nuisance; any use which violates in any way the Certificate of Occupancy or other Governmental Approval, or any use which violates a Law. (b) Compliance with Governmental Requirements. Tenant shall comply with all Governmental Requirements applicable to the Premises, including, without limitation, those prohibiting discrimination by reason of race, color, religion, sex, national origin, or handicap in the development, construction, management, lease, use or occupancy of the Premises and the Facility or any portion thereof. (c) Request for Additional Use. If Tenant desires to use any portion of the Premises for a use that is not a Permitted Use under this Lease, Tenant must seek written approval from the City, which consent may be withheld or denied in the City’s sole and absolute discretion. Section 2.03. “As Is” Condition of Premises. Subject to the terms of this Lease, Tenant shall accept possession of the Premises in its “As Is” condition on the Commencement Date. Except as otherwise expressly provided in this Lease, Tenant has full responsibility for 14 6 the condition, alteration, maintenance, management, repair and replacement of the Premises. Tenant acknowledges and agrees that prior to the Commencement Date of this Lease it has been given the opportunity to perform all inspections and investigations concerning the Premises to its satisfaction and that, except as expressly provided in this Lease, Landlord is not making and has not made any representations or warranties, express or implied, as to the Premises, including but not limited to, title, survey, physical condition, suitability or fitness for any particular purpose, value, financial prospects or condition, or the presence or absence of hazardous substances. Tenant acknowledges that it has relied solely on Tenant’s own inspections and investigations of the Premises in its determination of whether to proceed with this Lease and the Facility. As a material part of the consideration of this Lease, Tenant agrees to accept the Parcel in its “As Is” and “Where Is” condition, without any representations or warranties other than those expressly stated in this Lease. Section 2.04. Due Diligence Period. (a) Tenant shall have a period of forty-five (45) days from the Execution Date (the “Due Diligence Period”) to access the Premises and perform, at Tenant’s sole expense, all inspections and due diligence as Tenant may deem appropriate, including environmental and other tests, soil borings, soil or groundwater sampling, geological studies, appraisals, and any other studies or analyses, to determine the feasibility of the Premises for the Permitted Use. This Lease is subject to Tenant being satisfied in Tenant’s sole discretion with the condition of the Premises and all documentation concerning the Premises, including, but not limited to, the following: (i) zoning and land use conditions, (ii) building conditions and restrictions, (iii) survey, (iv) title work, (v) geotechnical survey, and (vi) environmental, geotechnical, soil and other site conditions. Within 15 days of the Execution Date, Landlord shall provide to Tenant copies of any and all documents, records, reports, studies, data and information relating to the Premises in Landlord’s control or possession (the “Existing Due Diligence”). (b) In exercising the privileges granted pursuant to this Section, Tenant shall substantially restore the Premises to the condition existing prior to such activities on the Premises. In consideration of Tenant’s right to inspect the Premises as described in this Section, Tenant agrees to indemnify, defend and hold Landlord harmless from any actions, suits, liens, claims, damages, expenses, losses and liability for damage to personal property or personal injury arising from or attributable to any acts performed by Tenant or its appointed agents or independent contractors in exercising Tenant’s rights under this Section (including, without limitation, any rights or claims of materialmen or mechanics to liens on the Premises, but excluding any matter to the extent arising out of the sole negligence or misconduct of Landlord). (c) Tenant shall promptly provide Landlord with copies of all documents, inspections, reports and information obtained during its Due Diligence of the Premises, including any Phase I and II Environmental Site Assessments and Reports. (d) The Due Diligence Period may be extended up to an additional 45 days, at Tenant’s option, if reasonably necessary to complete on-site testing at the Premises. Written notice of the request for additional due diligence days shall be made by Tenant to Landlord at least five days' prior to the expiration of the Due Diligence Period. Any further extensions of the Due Diligence Period will be solely upon good cause shown by Tenant, in the City’s sole and absolute discretion. 15 7 Section 2.05. Conditions Precedent; Effective Date. Landlord’s obligation to lease the Premises or otherwise to perform any obligation provided in this Lease is expressly conditioned upon the fulfillment or satisfaction of each of the following conditions precedent on or before 120 days from the Effective Date (the “120-Day Period”) (any of which may be waived only in writing by Landlord in its sole discretion): (a) Tenant shall have obtained all Miami-Dade County (“County”) approvals and permits necessary to designate the Premises and Facility as a waste disposal and/or tipping site for municipal/county/public waste, including the execution of a valid agreement between the Tenant and the County for such purposes; and (b) Tenant shall have obtained all County approvals, permits and/or amendments to existing agreements, to designate the Premises and Facility as the City of South Miami’s approved and designated disposal and tipping site for all City waste for the Term of this Lease. The 120-Day Period shall conclude at the earlier of the expiration of the 120 days from the Effective Date or the issuance of the required approvals, permits and/or amendments. Landlord shall be an applicant or co-applicant on all applications and shall reasonably cooperate with Tenant in Tenant’s efforts to obtain any and all approvals, permits and/or amendments required for compliance with this section, provided such cooperation is at no cost to the Landlord. Unless expressly waived in writing by Landlord, if Tenant is unable to obtain all necessary approvals, permits and/or amendments required by this subsection within the 120-Day Period, this Lease shall terminate, and the parties shall be relieved from any further obligations hereunder other than those which expressly survive termination. Section 2.06. Conditions Precedent; Permit Approval Period. Landlord’s obligation to lease the Premises or otherwise to perform any obligation provided in this Lease is expressly conditioned upon the fulfillment or satisfaction of each of the following conditions precedent on or before 24 months from the Effective Date (any of which may be waived only in writing by Landlord in its sole discretion) (the “Permit Approval Period”): (a) Tenant shall have obtained all Governmental Approvals and necessary permits, approvals, and entitlements from Governmental Authorities related to the Improvements to the Premises that Tenant intends to construct for the Permitted Use, and (ii) Miami-Dade County permits and approvals for the Permitted Use and Facility , including as part of the County’s waste disposal infrastructure and facilities. (b) FEMA Designated Debris Disposal Site. Tenant and City shall have applied for and obtained all Governmental Approvals and necessary permits and approvals from Governmental Authorities, including the Federal Emergency Management Agency (FEMA) for the use of the Premises as an approved and designated debris disposal site, including acceptance of all City debris at the Premises, with the costs of such disposal eligible for federal reimbursement. The Permit Approval Period shall conclude at the earlier of the expiration of the twenty-four (24) month period from the Effective Date or the issuance of all necessary permits and approvals. Landlord shall be an applicant or co-applicant on all applications and shall reasonably cooperate with Tenant in Tenant’s efforts to obtain any and all approvals not currently in place for the construction and operation of the Facility, provided such cooperation is at no cost to the Landlord. In the event that Tenant is unable to obtain all necessary permits 16 8 for the Facility and Miami-Dade County permits and approvals as required in this subsection 2.06(a) by the end of the Permit Approval Period, this Lease shall terminate, and the parties shall be relieved from any further obligations hereunder other than those which expressly survive termination. Section 2.07. Title Commitment. (a) During the Due Diligence Period, Tenant shall have the right to order a title commitment (the “Title Commitment”) issued by a title company acceptable to Tenant (the “Title Company”) for a leasehold title insurance policy in the amount of the leasehold value setting forth the status of title to the Premises and any exceptions thereto. (b) If a search of the title discloses judgments, bankruptcies, or other liens against other persons having names the same as or similar to that of Landlord, Landlord shall deliver to Tenant and the Title Company affidavits showing that such judgments, bankruptcies or other liens are not against Landlord. (c) If a search of the title, a review of the survey, or a visual inspection of the Premises reveals exceptions, matters of record, or conditions or matters making the title unacceptable to Tenant, Tenant will notify Landlord in writing not later than expiration of the Due Diligence Period. Landlord shall have no obligation to cure any title objections or requirements listed in the Title Commitment, but may at its option and discretion, cure any title objections or requirements. If Landlord proceeds to cure and fails to cure all such objections or requirements within ten (10) business days or such additional time agreed to by the parties and as may be reasonably necessary after such notice, Tenant may terminate this Lease by written notice to Landlord by the later of (i) the expiration of the Due Diligence Period or (ii) ten (10) business days after the expiration of said ten (10) business day cure period, in which event the parties shall be relieved from any further obligations hereunder other than those which survive termination. (d) Within ten (10) business days after the end of the Due Diligence Period, Landlord shall deliver to Tenant and the Title Company, affidavits in the form required by the Title Company with respect to (i) mechanic’s liens, certifying that as of the certification date there are no known unpaid bills rendered or to be rendered for services performed or materials furnished to the Premises, (ii) parties in possession, certifying that on the certification date, there are no parties other than Landlord in possession of the Premises, (iii) “gap” coverage insuring Tenant over any matters recorded after the effective date of the Title Commitment and prior to recordation of the Memorandum of Lease, and (iv) any other issues required by the Title Company, and all as reasonably acceptable to Landlord. Section 2.08 If Tenant for any (or no) reason in Tenant’s sole and absolute discretion, determines the Premises are not satisfactory for the Permitted Use and the Facility, Tenant shall have the right to terminate this Lease by providing written notice to Landlord at any time prior to the expiration of the Due Diligence Period, whereupon neither Landlord nor Tenant shall have any further obligations under this Lease other than those which expressly survive the expiration of this Lease. If Tenant does not terminate this Lease as permitted above in this Section, this Lease shall continue in full force and effect , subject to the termination provisions set out herein. 17 9 ARTICLE 3. RENT; SECURITY DEPOSIT Section 3.01 Base Rent. Beginning on the Commencement Date, Tenant shall pay to Landlord a Base Rent of $19,612.50 per month on the first day of each month. Tenant shall also be obligated to pay any applicable sales tax. Section 3.02 Security Deposit. The Security Deposit shall be equal to six (6) months of Base Rent paid by Tenant to Landlord within five (5) days of the Commencement Date, to secure the covenants and obligations of Tenant pursuant to this Lease and in the Event of Default or failure to perform the covenants and obligation pursuant to Article 20 of this Lease. In the event of termination of this Lease pursuant to Article 2 of this Lease and prior to the Commencement Date, Landlord shall return the Security Deposit to Tenant minus any costs associated with an Event of Default. Section 3.03 Additional Rent. In addition to the Base Rent, Tenant shall pay to Landlord an amount of Additional Rent, paid monthly equal to One Dollar ($1) per ton of all waste processed at the Facility once the volume of aggregate waste (including municipal solid waste, construction and debris, and any other waste stream irrespective of source, but excluding recyclable materials) processed exceeds the aggregate waste (including municipal solid waste, construction and debris, and any other waste stream irrespective of source, but excluding recyclable materials) tipped by the City at the Facility in each calendar year. This calculation shall reset each year on January 1 for each year of the Lease Term. Section 3.04 Rent payable by Tenant to Landlord shall be paid to Landlord at Landlord’s Address in lawful money of the United States of America in immediately available funds. All Rent shall be paid in advance on the first day of each month without notice, demand, deduction, abatement, or setoff, except as otherwise expressly provided in this Lease. Section 3.05 The Base Rent shall be increased by 5% at every 10-year anniversary of the Lease Term, beginning on the tenth anniversary of the Commencement Date and thereafter on every tenth anniversary date of the Commencement Date. Section 3.06 Commencing one month following the Commencement Date, and every month thereafter for the Term of the Lease, Tenant shall deliver to the Landlord a certified statement of the tonnage of all aggregate waste ( including solid waste, construction and debris, and any other waste stream irrespective of source, but excluding recyclable materials) processed at the Facility for the preceding month (“Monthly Figures”) and shall remit payment of Additional Rent on that basis. This statement shall separately account for waste from general municipal/county/public sources, including from the City, and private/commercial waste. On an annual basis, commencing one year from the Commencement Date, and every year thereafter for the Term of the Lease, Tenant shall provide Landlord with an accounting of the previous year’s annual aggregate tonnage of waste processed at the Facility (including municipal solid waste, construction and debris, and any other waste stream irrespective of source, but excluding recyclable materials), calculation of Additional Rent due and Additional Rent Paid for such year, all as prepared by an independent certified public accountant ("CPA"), admitted to practice in the State of Florida, and reasonably acceptable to Landlord. The CPA statement shall render an unqualified opinion certifying to the Tenant's accounting of Monthly Figures. 18 10 Section 3.07 Records Retention and Landlord’s Right to Audit. All records of Tenant pertaining to Additional Rent, Monthly Figures and tonnage of aggregate waste must be made available locally, at the expense of the Tenant, for examination, inspection and audit by a CPA retained by the Landlord, the City’s Finance Department or Internal Auditor, or any other designee of the Landlord for compliance with this Article 3. (a) Availability of Records. Records must be made available for inspection at all reasonable times, after reasonable notice from Landlord, throughout the Term of this Lease, and for a period of three years after the date of the final payment due under this Lease. (b) Record Retention. All records of Tenant must be retained until the later of (a) three years after the date of the final payment due under this Lease; or (b) as required by applicable law, including the required retention period of the Florida Public Records Act set forth in Chapter 119 of the Florida Statutes. (c) Records to be Retained. The records required to be retained under this Lease include, but are not limited to, all business records, bookkeeping and accounting records, sales and income tax records and returns, bank statements, tax deposits, supporting documents, statistical records, sales reports, and any other records which may be pertinent to this Lease or to the calculation of Additional Rent. (d) Variance Reserve. Tenant will maintain a reserve account in the minimum amount of $50,000 in the form of an irrevocable and unconditional standby letter of credit on terms acceptable to Landlord and with a bank acceptable to Landlord (the "Variance Reserve Letter of Credit") to address any variances from the calculations of Additional Rent owed Landlord as determined by a year-end true up of the Additional Rent based on year end accounting set out in section 3.06. If the year-end accounting determines that Additional Rent is owed Landlord, the additional amount shall be paid by Tenant within 15 days, failing which the Landlord may draw from the Variance Reserve Letter of Credit, which Tenant shall have a continuing obligation to replenish to a minimum of $50,000 within 30 days. In the event of an overpayment, Tenant will receive a credit for the amount of the overpayment, which will be applied to future Additional Rent payments. (e) Audit Results. If any examination, inspection or audit performed by the Landlord discloses a variance in payments by Tenant to Landlord in an amount representing greater than five-percent (5%) of the total Additional Rent owed for the preceding year, then: (i) in the event of an underpayment Landlord may draw from the Variance Reserve Letter of Credit within 15 days after receipt of the Landlord’s inspection or report, the amount due and the cost of the audit ; or (ii) in the event of an overpayment, Tenant will receive a credit for the amount of the overpayment, which will be applied to future Additional Rent payments. ARTICLE 4. PAYMENT OF IMPOSITIONS AND UTILITIES Section 4.01 “Impositions” shall mean, collectively, (a) all real estate taxes, all special assessments and all other property assessments, including all assessments for public improvements or betterments, whether or not commenced or completed within the Term of this Lease and any non-ad valorem taxes included in the real estate tax bill for the Premises, (b) all ad valorem, sales and use taxes, (c) all rent and occupancy taxes and all similar taxes imposed upon the Rent, (d) all personal property and other taxes on the Personal Property, (e) all water, sewer, and other utility charges imposed by any Governmental Authority, (f) all 19 11 fines, fees, charges, penalties, and interest imposed by any Governmental Authority or utility, and (g) all other governmental charges and taxes, in each case of any kind or nature whatsoever, general or special, foreseen or unforeseen, ordinary or extraordinary, which are at any time during or with respect to the Term assessed, levied, charged, confirmed or imposed with respect to the Premises and the Facility. Section 4.02 The Premises are a portion of the City Land, a larger parcel used for public purposes. The Premises shall be legally subdivided from other City Land, at the Tenant’s sole cost and expense, to segregate the Premises, to the maximum extent practicable, in connection with ad valorem taxation resulting from private use of the Premises. Section 4.03 Tenant shall not be responsible for (a) any Impositions that accrued prior to the Commencement Date, or (b) any fines, fees, charges, penalties, or interest imposed by any Governmental Authority with respect to periods prior to the Commencement Date or with respect to any notice of violation of Law issued and outstanding as of the Commencement Date. Section 4.04 Tenant shall timely pay and discharge, or shall cause to be paid or discharged, all Impositions that arise or accrue after the Commencement Date directly to the Governmental Authority charged with the collection thereof., before any fine, penalty, interest or cost may be added, imposed or assessed against the Premises and the Rent. Section 4.05 Tenant may, at Tenant’s sole cost and expense, endeavor from time to time to reduce the assessed valuation of the Premises for the purpose of reducing the Impositions payable by Tenant. Landlord shall reasonably cooperate with Tenant in any measures necessary to lawfully reduce the Impositions. Notwithstanding the foregoing, Tenant shall timely pay all Impositions. Section 4.06 If all or any part of an Imposition is refunded to either party (whether through cash payment or credit against Impositions), the party who paid the Imposition to which the refund relates shall be entitled to such refund to the extent such refund relates to any Imposition paid by such party. If either party receives a refund (whether by cash payment or credit) to which the other party is entitled, the receiving party shall promptly pay the amount of such refund or credit to the entitled party, less the receiving party’s expenses, if any, in obtaining such refund or credit. Section 4.07 Tenant shall obtain and timely pay for all deposits, charges and fees for all utilities provided to the Premises during the Term, including fuel, gas, electric, water, sewer service, stormwater, trash collection, and telephone, cable and internet/data service. ARTICLE 5. CONSTRUCTION OF IMPROVEMENTS; OPERATIONAL REQUIREMENTS Section 5.01 Tenant shall have the right to construct, at Tenant's sole cost and expense, the Improvements and Facility, and all related infrastructure, in compliance with all applicable Governmental Requirements, and subject to the review and approval of Landlord. The Facility, as constructed, will include an indoor waste processing and loading facility, rail spur(s), scale house and all equipment and infrastructure necessary to operate a waste-to-rail transfer facility with a minimum processing and loading capacity of 500,000 tons per year, along with all related site preparation and grading and all conditions and infrastructure 20 12 necessary to satisfy the requirements of all Governmental Requirements and Law, including without limitation, environmental and safety regulatory requirements. The Facility shall include a wall or opaque fence at least 10-feet high along the western boundary of the Premises to separate the Premises from the remaining City Land and surrounding properties. Tenant may also construct a monument sign for the Facility, subject to all applicable Government Requirements and Governmental Approvals. The Facility shall be constructed and operated to conduct operations indoors and with industry standard odor control systems in accordance with all applicable permits and other Governmental Approvals, and as reasonably acceptable to Landlord. Subject to all applicable Governmental Requirements, Tenant shall utilize concrete, macadam or other impervious ground cover to cap the entire ground of the Premises, to the fullest extent allowed under applicable Governmental Requirements, to mitigate any potential environmental impacts to the Premises resulting from Tenant’s operations of the Facility. Section 5.02 Conditions Precedent to Construction. Landlord’s obligation to lease the Premises or otherwise to perform any obligation provided in this Lease is expressly conditioned upon the fulfillment or satisfaction of each of the following conditions precedent on or before commencement of any development or construction on the Premises by Tenant (any of which may be waived only in writing by Landlord in its sole discretion): (a) Plans. Tenant shall be responsible for preparing, and delivering to Landlord, construction plans and specifications for the Facility in conformance with all applicable Governmental Requirements and Law, together with copies of all permits, approvals, and authorizations as required and all other Governmental Authorities for the construction of the Facility, and copies of the following plans and specifications: (i) site plan; (ii) building elevations; (iii) exterior materials; and (iv) landscaping plans (collectively, the “Tenant’s Plans”). (b) Tenant has obtained, and has caused its general contractor to obtain the insurance required by Article 8 and has delivered to Landlord certificates (in form reasonably acceptable to Landlord) evidencing such insurance; and (c) The parties will work cooperatively to direct ingress and egress to and from the Premises from SW 74th Avenue so as to not disrupt the City’s use of its retained portion of the City Land. Tenant shall obtain and deliver to Landlord all permits and authorizations necessary to access the Premises. (d) Approved Subdivision Plat or Waiver of Plat for the Premises. (e) Miami-Dade County permits and approvals for the Permitted Use and Facility, including as part of the County’s waste disposal infrastructure and facilities. Section 5.03 Prototype Design. Attached hereto as Exhibit C is a prototype design (the “Prototype Design”) for the Facility, as to which Landlord hereby gives its preliminary approval. Notwithstanding the foregoing, Landlord hereby acknowledges that Tenant shall not be limited to constructing the Prototype Design (it is understood and agreed that Tenant shall 21 13 have the right, at its discretion, to make changes to the Prototype Design and/or otherwise to re-design and/or construct other improvements consistent with the Permitted Use of the Facility, and subject to review and approval by Landlord. Section 5.04 Tenant shall have the right to alter and add to the S.W. 74th Avenue access to the Premises, subject to Landlord’s reasonable approval and all applicable Legal Requirements and Governmental Approvals. Access from any street or location other than SW 74th Ave will require the Landlord’s express written approval, in its sole discretion. Section 5.05 All construction work associated with the construction of the Facility shall comply in all material respects with the requirements of the final Tenant’s Plans and specifications approved by Landlord. All work in connection with the design, permitting and construction of the Facility shall be prosecuted with reasonable diligence in accordance with the Development Timeline to be agreed upon cooperatively by Tenant and Landlord within 120 days of the Effective Date, and as may be amended from time to time, subject to Unavoidable Delays. All construction shall be accessed solely from S.W. 74th Avenue, or such temporary alternative access as the Landlord approves in its sole discretion, and no construction shall proceed until all Governmental Approvals and authorizations to access the Premises from S.W. 74th Avenue or alternative locations are approved by all appropriate Governmental Authorities. Section 5.06 Tenant shall have the right to terminate this Lease should Landlord’s approval of the Facility or related infrastructure or access be denied or withheld for any reason. Section 5.07 Tenant’s Obligations During Construction. At all times during construction and prior to completion of the Facility, Tenant shall: (a) Perform and complete the Work; (b) Select the means and methods of construction, using only adequate and safe procedures, methods, structures and equipment; (c) Furnish, erect, maintain and remove any construction equipment and temporary structures that may be required to perform the Work; be responsible for the safety, efficiency and adequacy of the construction equipment and construction methods used, and be responsible for any damage which may result from any failure of the construction equipment or any failure in the method of construction; (d) Provide all architectural and engineering services, scaffolding, hoists, temporary structures, light, heat, power, toilets, temporary utility connections, equipment, tools and materials and whatever else may be required for the proper performance of the Work; (e) Order and have delivered all materials required for the Work and be responsible for properly securing, protecting and insuring the materials and making certain they remain in good condition; (e) Maintain the Premises in a clean and orderly condition at all times and remove all debris from the Premises; (f) Protect all Work prior to its completion and acceptance; 22 14 (g) Preserve all properties adjacent to or leading to the Premises, and restore and repair any such properties damaged as a result of construction of the Improvements, whether such properties are publicly or privately owned; (h) Implement and maintain in place at all times a comprehensive hurricane and flood plan for the Premises and the Work, and provide a copy of same to Landlord; (i) Upon completion, deliver to Landlord an as-built survey and as-built plans and specifications for the Improvements; (j) Upon completion of the Improvements, deliver to the Landlord a copy of the final CO for the completed Improvements; (k) Carry on any construction, maintenance or repair activity with diligence and dispatch and use diligent effort to complete the Work in the shortest commercially reasonable time under the circumstances; (l) Take commercially reasonable precautions to protect property adjacent to the Premises, the City Land, or property which is in the vicinity of or is in anyway affected by the Work, and be responsible and liable for all damage or injury to all adjacent public and private property as a result of Tenant’s operations. Section 5.08. Guaranty of Completion. Prior to commencing any construction on the Premises, Tenant must provide Landlord a form of security for Tenant’s obligation to complete construction of the Facility. Acceptable forms of security include payment and performance bonds, personal guarantees by the principals of the Tenant, or an irrevocable letter of credit in the amount of the Improvement Cost, all in form acceptable to the Landlord. The form of security must include a guaranteed source of funds to be available to the Landlord to complete construction of any unfinished Improvements. The security must be satisfactory to the Landlord in its reasonable discretion. Section 5.09. Landlord’s Representative. The Landlord may designate one or more employees or agents to be the Landlord’s Representative during construction of the Facility The Landlord’s representative may, during normal business hours, visit, inspect or appraise the Premises, and any materials, contracts, records, plans, specifications and shop drawings relating to the Premises and the Facility, whether kept at Tenant’s offices or at the Premises construction site or elsewhere. Tenant agrees to cooperate with the Landlord to enable Landlord’s representative to conduct site visits, inspections and appraisals. Section 5.10. Changes to the Facility and Facility and Improvements. After the Facility and Improvements have been completed, Tenant will not make any alterations or additions (“Changes”) to the Facility and Improvements without the Landlord’s prior written consent. Any permitted Changes will be made in a good and workmanlike manner, in accordance with approved plans, if required, and in accordance with all Governmental Requirements. The Tenant’s obligations during construction of the Facility and Improvements set forth in this Article 5 will also apply to any Changes to the Facility and Improvements. Section 5.11. Tenant’s Duty to Keep Premises Free of Liens. Premises Not Subject to Liens. In accordance with Section 713.10 of the Florida Statutes, any and all liens or lien rights arising out of the construction of the Facility and Improvements extend only to Tenant’s Leasehold Interest in the Premises. The City’s right, title and interest in the Premises are not subject to liens or claims of liens for improvements made by Tenant. (a) Nothing contained in the Lease shall be deemed or construed to constitute the consent or request of the Landlord, either express or implied, to any contractor, 23 15 subcontractor, laborer or materialman for the performance of any labor or the furnishing of any materials for any specific improvement of, alteration to, or repair of any portion of the Premises or Facility. (b) Nothing contained in the Lease shall be deemed or construed to give Tenant, any Lender, subtenant, or sublessee any right, power or authority to contract for, or permit the rendering of, any services or the furnishing of materials that would give rise to the filing of any lien, mortgage or other encumbrance against City’s interest in all or any part of the Premises, or against assets of the City, or Landlord’s interest in any Rent and other monetary obligations of Tenant described in this Lease. (c) Tenant’s Construction Agreements. Any construction agreements entered into between Tenant and a general contractor or other contractor in privity with the Tenant must provide that the Landlord will not be liable for any work performed or to be performed at the Premises or Facility for Tenant, any Lender, subtenant or sublessee, or for any materials furnished or to be furnished to the Premises or the Facility for Tenant, any Lender, subtenant or sublessee. (d) No Liens on City’s Interest. No mechanic’s, laborer’s, vendor’s, materialman’s or other similar statutory lien for such work or materials will attach to or affect City’s interest in all or any part of the Premises, or any assets of the City, or the City’s interest in any Rent or other monetary obligations of Tenant arising under the Lease. (e) Contesting Liens. If Tenant desires to contest any lien, Tenant must notify the Landlord of its intention to do so within 30 days after the filing of the lien. Tenant, at its sole cost and expense, will protect the City by transferring the lien to bond in accordance with Section 713. 24 of the Florida Statutes within 30 days after the filing of the lien. (i) The lien will not constitute a Tenant Event of Default under the Lease if Tenant timely provides the bond described above. If the lien is determined to be valid, Tenant must satisfy and discharge the lien within 30 days after its validity is determined. (ii) In the event Tenant contests any lien, Tenant shall protect and indemnify the City against all loss, expense and damage resulting from the lien contest, in accordance with the indemnification provisions of this Lease. (f) City Liens. City will not take any action that could result in a lien against Tenant’s Leasehold Interest in the Premises. ARTICLE 6. COMPLIANCE WITH ENVIRONMENTAL LAWS; ENVIRONMENTAL INDEMNITY Section 6.01 Defined Terms for Purposes of this Article. The following terms, as used in this Lease and in all amendments to the Lease (unless otherwise specified or unless the context otherwise requires), shall have the meanings and/or be construed, as the case may be, as set forth below: (a) Environmental Condition means any set of physical circumstances in, on, under, or affecting the Premises or the Facility that may constitute a threat to or endangerment of health, safety, property, or the environment, including but not limited to: (i) The presence of any Hazardous Substance, except in such quantities and concentrations as are routinely found in nature, in 24 16 products used in ordinary business or commercial activities, or except as below applicable soil or groundwater clean-up target levels (CTLs); (ii) Any underground storage tanks, as defined in Subtitle I of the Hazardous and Solid Waste Amendments of 1984, 42 U.S.C. 6991 et. seq., or the regulations thereunder, for the storage of hazardous wastes, oil, petroleum products, or their byproducts; (iii) Any PCB, asbestos or any other substances specifically regulated under the Toxic Substances Control Act, 15 U.S.C. 2601 or regulations issued thereunder; and (iv) Any open dump or system of refuse disposal for public use without a permit, as prohibited by 42 U.S.C. 6945 and/or Florida law equivalent, or the regulations issued thereunder. (b) Environmental Laws means the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. 9601 et. seq., the Resource Conservation and Recovery Act, 42 U.S.C. 6901 et. seq.; the Toxic Substances Control Act, 15 U.S.C. 2601 et. seq.; the Clean Water Act, 33 U.S.C. 1251 et seq.; the Clean Air Act, 42 U.S.C. 7401 et. seq.; the Oil Pollution Act, 33 U.S.C. 2701 et. seq., the Hazardous Materials Transportation Act, 49 U.S.C. 1801 et. seq.; the Refuse Act of 1989, 33 U.S.C. 407; the Occupational Safety and Health Act, 29 U.S.C. 651 et. seq., as such laws have been amended or supplemented from time to time, the regulations promulgated under these laws; and any analogous Governmental Requirements. (c) Environmental Requirements means all present and future Governmental Requirements, including without limitation, the Environmental Laws, authorizations, judgments, decrees, concessions, grants, orders, agreements or other restrictions or requirements relating to any Environmental Conditions or any Hazardous Substances on the Property. (d) Hazardous Substance means any substances or materials identified to be toxic or hazardous according to any of the Environmental Laws, including without limitation, any asbestos, PCB, radioactive substances, methane, volatile hydrocarbons, acids, pesticides, paints, petroleum based products, lead, cyanide, DDT, printing inks, industrial solvents or any other material or substance that has in the past or could presently or at any time in the future cause or constitute a health, safety or other environmental hazard to any person or property. The term Hazardous Substances includes hazardous wastes, hazardous substances, extremely hazardous substances, hazardous materials, toxic substances, toxic chemicals, oil, petroleum products and their by-products, and pollutants or contaminants as those terms are defined in the Environmental Laws. (e) Environmental Permit means any Governmental Approval required under any Environmental Law in connection with the ownership, use or operation of the Premises and Facility for the storage, treatment, generation, transportation, processing, handling, production or disposal of Hazardous Substances, or the sale, transfer or conveyance of the Facility, and all supporting documentation thereof. (f) Environmental Claim means any notice of violation, claim, demand, abatement or other order or direction (conditional or otherwise) by any Governmental Authority or any person for personal injury (including without limitation, sickness, disease, or death), tangible or intangible property damage, damage to the environment, nuisance, 25 17 pollution, contamination or other adverse effects on the environment, or for fines, penalties, or restrictions, resulting from or based upon: (i) The existence or release, or continuation of any existence of a release (including without limitation, sudden or non-sudden, accidental or non-accidental leaks or spills) of, or exposure to, any substance, chemical, material, pollutant, contaminant, or audible noise or other release or emission in, into or onto the environment (including without limitation, the air, ground, water or any surface) at, in, by, from or related to the Premises and the Facility, excluding those arising from any Existing Condition or solely from the intentional or negligent actions of the Landlord; (ii) The environmental aspects of the transportation, storage, treatment or disposal of materials in connection with the Tenant’s possession, activities and operations on the Premises or Facility; or (iii) The violation, or alleged violation, of any Governmental Requirements relating to Environmental Requirements on the Premises or Facility, but excluding any of violations arising solely from any Existing Condition or the intentional or negligent actions of the Landlord. (g) Corrective Action Work means any and all activities of removal, response, investigation, testing, analysis, remediation taken to: (i) Prevent, abate or correct an Environmental Condition at, about, affecting, or affected by the Premises or the Facility; or (ii) Comply with all applicable Environmental Requirements. (h) Existing Conditions shall mean and refer to (i) any Hazardous Materials present or released on the Premises (including its subsurface soil or groundwater) prior to the Commencement Date as documented in a Phase I and/or Phase II Environmental Assessment or Report performed by Tenant and delivered to and accepted by Landlord during the Due Diligence Period; or (ii) the migration of any Hazardous Materials onto the Premises (including its subsurface soil or groundwater) from other property which existed prior to the Commencement Date as documented in a Phase I and/or Phase II Environmental Assessment or Report performed by Tenant and delivered to and accepted by Landlord during the Due Diligence Period. Section 6.02. Environmental Indemnification. Tenant covenants and agrees, at its sole cost and expense, to defend (with counsel selected by Landlord, after consulting with the Tenant), indemnify and hold harmless the City, its successors, and assigns from and against any and all Environmental Claims, except those related to an Existing Condition, whether meritorious or not, brought against the City by any Governmental Authority or other party. (a) This indemnity includes, without limitation, indemnification against: all costs of removal, response, investigation, or remediation of any kind; all costs of disposal of such Hazardous Substances as necessary to comply with Environmental Laws; all costs associated with any Corrective Action Work; all costs associated with claims for damages to persons, property, or natural resources; any loss from diminution in the value of the Premises 26 18 and Facility; and the City’s Attorneys’ Fees, consultants’ fees, court costs and expenses incurred in connection with any Environmental Claims brought against the City. (b) Tenant’s indemnification of City is only for Environmental Claims which arise out of or are caused by actions or events occurring after the Commencement Date. (c) This indemnification is to be interpreted as broadly as possible and is in addition to all other rights of the City under this Lease. (d) Payments by Tenant under the Environmental Indemnification will not reduce Tenant’s obligations and liabilities under any other provision of this Lease. Section 6.03 Neither the Tenant nor the general contractor, nor any other contractor in privity with Tenant, has a duty to defend or indemnify the Landlord in connection with any Existing Condition or any Environmental Claims that are directly due or caused by the intentional or negligent conduct of the City occurring after the Commencement Date. Section 6.04 Compliance with Environmental Laws. Provided Tenant does not cancel this Lease within the Due Diligence Period, Tenant accepts the Premises in “As Is” condition. Tenant shall comply with all Environmental Laws. Except as to Existing Conditions, such compliance includes Tenant’s obligation to take Corrective Action Work when required by Law (in accordance with applicable Law or Environmental Requirements and this Lease) and to pay all fines, penalties, interest, and other costs imposed by any Governmental Authority in connection with any violation or requirement of Law by or attributable to Tenant. In the event that any Existing Condition on the Premises is found to be in violation of any Environmental Requirement or Law, Tenant shall not be obligated to take Corrective Action Work, to defend or indemnify Landlord, or to pay any fines, penalties, interest, and other costs imposed by any Governmental Authority in connection with said Existing Condition. Any Existing Condition will be the sole responsibility of Landlord. ARTICLE 7. REPAIRS, MAINTENANCE AND OPERATION Tenant shall at all times, (a) repair and maintain the Premises and Facility in an good, orderly and safe condition, in a good state of repair, and in a manner consistent with the standards of operation and maintenance of first-class properties similar to the Premises and Facility, and (b) make such repairs, replacements, and alterations to the Premises and Facility as are necessary to keep them in such condition, and (c) continuously operate the Facility throughout the Lease Term. Tenant shall comply with all Governmental Requirements applicable to the maintenance, occupancy and operation of the Premises and Facility. Tenant shall cooperate with the Landlord to mitigate noise, odor, and other impacts to the remainder of the City Land. ARTICLE 8. INSURANCE; COMPLIANCE WITH INSURANCE REQUIREMENTS [All Insurance Requirements and Limits Subject to Final City Approval] Section 8.01. Prior to the Commencement Date and at all times during the Lease Term, Tenant shall procure and maintain the insurance required by this Lease, at Tenant’s sole cost and expense. In addition, Tenant shall ensure that its general contractor maintains the applicable insurance coverages set forth in this Lease, unless waived or modified by the 27 19 Landlord. (a) General Insurance Provisions. (i) All policies must be executable in the State of Florida. (ii) All insurers must maintain an AM Best rating of A or better. (iii) Tenant’s insurance policies will be primary over any and all insurance available to the Landlord, whether purchased or not, and must be non-contributory. (iv) The Tenant, and its general contractor, and any subcontractors performing work on the Premises or the Facility shall be solely responsible for payment of all deductibles and retentions contained in their respective insurance policies. The City will be included as an “Additional Insured” on the Commercial General Liability policy, any Umbrella Liability policies, , and any other policies, where applicable. The City will also be named as “Loss Payee” on all of Tenant’s Property Insurance policies. (v) Tenant will ensure that each insurance policy obtained by it or by its general contractor or subcontractors provides that the insurance company waives all right of recovery by way of subrogation against the City in connection with any damage covered by any policy. Section 8.02. Evidence of Insurance. Prior to the Commencement Date and at all times during the Lease Term, Tenant shall provide satisfactory evidence of the required insurance to the City. Satisfactory evidence of insurance is either (a) a certificate of insurance, or (b) a certified copy of the actual insurance policy. The City, at is sole option, may request a certified copy of any or all insurance policies required by this Lease. Tenant acknowledges that Tenant is the party responsible to the City fo r providing all insurance required by this Lease. All insurance provided by or on behalf of Tenant shall be carried in favor of Landlord as “Additional Insured.” Section 8.03. Cancellations and Renewals. All insurance policies must specify that they are not subject to cancellation or non-renewal without a minimum of 30 days notification to the Tenant, and a minimum of 10 days notification for non-payment of premium. The Tenant will provide the Landlord a minimum of 30 days written notice if any policies are cancelled or non-renewed, and 10 days written notice of cancellation for non-payment of premium. Section 8.04. Required Coverages. The following minimum insurance coverage must be maintained throughout the Term of the Lease. (a) Commercial General Liability Insurance. Tenant must maintain Commercial General Liability Insurance. Coverage must include, as a minimum: (a) Premises Operations, (b) Products and Completed Operations, (c) Incidental Contractual Liability, (d) Personal Injury Liability and (e) Expanded Definition of Property Damage. The minimum limits acceptable are $2,000,000 per occurrence and $5,000,000 in the aggregate. The use of an excess/umbrella liability policy to achieve the limits required by this paragraph will be acceptable as long as the terms and conditions of the excess/umbrella policy are no less restrictive than the underlying Commercial General Liability policy. (b) Automobile Insurance. Tenant shall maintain business automobile insurance with minimum limits of $1,000,000 per occurrence, with liability limits of not less than $1,000.000 combined single limit covering liability for Tenant's vehicles used in conjunction with the Premises, whether owned, non-owned or hired. 28 20 (c) All Risk Property Insurance. Tenant shall maintain Property Coverage (Special Form), to cover the “All Other Perils” portion of the policy at the Replacement Cost Valuation as determined by a certified property appraiser acceptable to both the Tenant and the City. The perils of Windstorm and Flood shall carry sub limits to be determined annually and acceptable to the City. To the extent available, coverage will extend to furniture, fixtures, equipment and other personal property associated with the Facility. The policy must also commercially reasonable provide “Law and Ordinance” coverage, while giving deference to the age of the Facility. (d) Business Interruption Insurance. During the Term of this Lease, Tenant shall maintain Business Interruption insurance for loss of revenue and other insurable business interruption losses by Tenant by reason of a total or partial suspension or interruption in the operation of the Facility and Premises caused by damage or destruction of the Facility or Premises in an amount sufficient to meet Base and Additional Rent payments and other recurring obligations and payments required of Tenant for 12 months, based on the total of these payments over the preceding 12 months at each policy renewal. (e) Workers’ Compensation. Tenant shall maintain Workers’ Compensation Insurance with limits sufficient to comply with Florida Statute §440. In addition, the Tenant shall obtain Employers’ Liability Insurance with limits of not less than $1,000,000 per accident or incident. No employee or agent of the Tenant shall be allowed on the Premises or Facility pursuant to this Lease which is not covered by Workers Compensation and Employer’s Liability insurance. (f) Environmental Pollution Liability Insurance. Tenant shall maintain environmental and pollution liability insurance for each incident in a commercially reasonable amount based upon risks identified in environmental due diligence, including the Phase I and/or Phase II Environmental Site Assessments performed and delivered to Landlord during the Due Diligence Period. . Should the parties not agree to a commercially reasonable amount, the Landlord may terminate this Lease within seven (7) days after the end of the Due Diligence Period. Section 8.05 Coverage Required During Construction. (a) Builders Risk Insurance. During all construction activities conducted on the Premises, including modifications to existing buildings or structures on the Premises that impact the structural integrity of the buildings or structures, Tenant shall carry Builders Risk insurance, including the perils of wind and flood, with minimum limits equal to the “Completed Value” of the Improvements and Facility being erected or the total value of the modifications being made, to the extent available. If such levels of coverage are not available, Tenant shall carry the full amount of such insurance currently available. (b) Professional Liability. Tenant shall ensure that Architects and Engineers Errors and Omissions Liability insurance specific to the construction activities is obtained prior to the commencement of any construction activities on the Premises, including without limitation, the Facility. If coverage is provided on a “Claims Made” basis, the policy shall provide for the reporting of claims for a period of two years following the completion of all construction activities. The minimum limits acceptable are $1,000,000 per occurrence and $2,000,000 in the aggregate annually. Section 8.06. Premiums and Renewals. Tenant shall ensure that all premiums for the insurance required by this Lease are paid as they become due. Tenant shall renew or 29 21 replace each policy prior to the policy expiration date, and promptly deliver to the City all original Certificates of Insurance and copies of all renewal or replacement policies. Section 8.07. Adequacy of Insurance Coverage. The City has the unilateral right to periodically review the adequacy of the insurance coverage required by this Lease. The City may request a change in the insurance coverage if the requested change is commercially reasonable, and the coverage requested is customary and commonly available for properties similar in type, size, use and location to the Property and Improvement. Tenant has the right to contest the request for a change in insurance, but must be commercially reasonable. Section 8.08. Inadequacy of Insurance Proceeds. In the event that insurance proceeds are not adequate to rebuild and restore damaged Improvements and the Facility to their previous condition before an insurable loss occurred, and the cause of the deficiency in insurance proceeds is the Tenant’s failure to adequately insure the Improvements and Facility as required by this Lease, Tenant shall rebuild and restore the Improvements and Facility as required by this Lease and will be responsible for payment of any costs of the rebuilding and restoration not covered by the insurance proceeds. Section 8.9. City May Procure Insurance if Tenant Fails To Do So. If Tenant refuses, neglects or fails to secure and maintain in full force and effect any or all of the insurance required by this Lease, the City, at its option, may procure or renew such insurance. In that event, all sums paid by the City for insurance will be payable by Tenant to the City together with interest at the Default Rate from the date the sums were paid by the City to the date of reimbursement by Tenant. Section 8.10. Effect of Loss or Damage. Any loss or damage to the Improvements by fire or other casualty at any time will not operate to terminate this Lease or to relieve or discharge Tenant from the performance and fulfillment of any of Tenant’s obligations pursuant to this Lease, including without limitation, the payment of Rent, as the same may become due and payable. The City’s acceptance or approval of any insurance agreement will not relieve or release or be construed to relieve or release Tenant from any liability, duty or obligation set forth in this Lease. Section 8.11. Deductibles. All deductibles or self-insured retentions must be declared to and be approved by the Landlord if commercially reasonable. Tenant shall be responsible for the payment of any deductible or self-insured retentions in the event of any claim. Section 8.12. The provisions of this section shall survive termination of this Lease. ARTICLE 9. INDEMNITY Section 9.01. Indemnification. Tenant to Indemnify City. Tenant, on behalf of itself and on behalf of future employees, agents, contractors, licensees, invitees, guests or persons performing work or using, visiting or occupying the Premises, hereby agrees and covenants to indemnify, defend (with counsel selected by City, after consulting with the Tenant) and save harmless the City from and against any and all claims, actions, damages, liabilities, losses, costs and expenses, including without limitation, Attorneys’ Fees (collectively, “Losses”) to the fullest extent permitted by law, arising in connection with the subject matter of this Lease, including, without limitation, indemnification for: 30 22 (a) Tenant’s default, breach, violation or non-performance of any provision of this Lease; (b) Tenant’s use and operation of all or any portion of the Premises and Facility during the Term; (c) Tenant’s negligent acts or omissions; (d) Any challenge to the validity of this Lease or the procurement process that resulted in this Lease by a third party through legal proceedings or otherwise, other than a challenge arising by, through or under the City’s fee interest in the Premises. Tenant shall not, however, have a duty to defend or indemnify to the extent Losses arise out of (i) Landlord’s gross negligence or misconduct, including its intentional failure to take any action required herein after being put on notice of such failure and given a reasonable opportunity to cure; or (ii) any Existing Condition or for any matter excluded in Section 6.03. Section 9.02. Indemnification Includes Losses from Construction. Tenant’s indemnity under this Lease includes indemnification of City against any Losses resulting from either the construction of the Improvements and Facility or any subsequent renovation or alteration of the Improvements and Facility by the Tenant. Section 9.03. Indemnification from General Contractor. Tenant covenants and agrees that any contracts for the Improvements and the Facility entered into by Tenant and a general contractor or other contractor in privity with Tenant will include the indemnities required by this Lease from the general contractor or other contractor in privity with Tenant in favor of Tenant and the City. Section 9.04. Litigation over Governmental Approvals. Tenant shall indemnify, defend and save harmless the City from and against any and all costs and expenses, including Attorneys’ Fees, in any challenge to (i) any Governmental Approvals for the Facility, (ii) the County’s recognition and approval of the Premises and Facility as a waste disposal and/or tipping site for municipal/county/public waste, (iii) the County’s recognition and approval of the Premises and Facility as the City’s waste disposal and/or tipping site for its waste for the entire Term of this Lease, and (iv) the execution of any agreement between the Tenant and the County for such purposes. Section 9.05. Tenant Liability Not Limited By Insurance. The liability of Tenant under this Lease will not be limited in any way to the amount of proceeds actually recovered under the policies of insurance required to be maintained pursuant to the terms of this Lease. Section 9.06. City’s Tort Liability; Sovereign Immunity. Any tort liability to which the City is exposed under this Lease will be limited to the extent permitted by applicable law and subject to the provisions and monetary limitations of Section 768.28, Florida Statutes, as may be amended, which statutory limitations will be applied as if the parties had not entered into this Lease. The City expressly does not waive any of its rights and immunities under applicable law. 31 23 ARTICLE 10. LEASEHOLD MORTGAGE Section 10.01. Tenant’s Right to Encumber Leasehold. Tenant has the right, without the consent or approval of Landlord, to encumber all, but not less than all. of the Tenant’s leasehold interest under this Lease to secure repayment of a loan or loans made to Tenant by a Lender, subject to the conditions set forth in the Lease. Section 10.02. Mortgage Limitation. Tenant agrees that at no time will the outstanding principal balance of all Leasehold Mortgages encumbering the Tenant’s Leasehold Interest in the Parcel exceed the value of the Leasehold Interest, as determined by a third-party appraisal. Section 10.03. Debt Secured. Any Leasehold Mortgage must be solely for the purpose of securing debt directly related to the Premises, the Improvements, and the Leasehold Mortgage (for example but not for limitation, an interest reserve during the construction period). Tenant may not encumber or attempt to encumber the Leasehold Interest as security for any indebtedness of Tenant arising out of any other property owned by Tenant. Any such attempt will be null and void and will also constitute a Tenant Event of Default. Section 10.04. Delivery of Leasehold Mortgage Documents. Tenant must deliver to the, within five days after execution by Tenant, a true and correct copy of any Leasehold Mortgage and any amendment, modification or extension of a Leasehold Mortgage. In addition, Tenant must provide to Landlord the contact information for the holder of the Leasehold Mortgage. Section 10.05 Landlord ’s Obligations. After a true and correct copy of a Leasehold Mortgage and the contact information for the holder of the Leasehold Mortgage are delivered to the Landlord, then until the lien of the Leasehold Mortgage has been extinguished, the Landlord will not: (a) Terminate, agree to any termination, or accept any surrender or cancellation of this Lease (except upon the expiration of the Term); or (b) Consent to any amendment, modification, mortgaging or other hypothecation of this Lease, without the prior written consent of Lender, if the Leasehold Mortgage documents require Lender’s prior written consent to such amendment, modification, mortgage or other hypothecation. Section 10.06. No Limitations on Landlord ’s Rights Under Lease. No provision of any Leasehold Mortgage will prevent or restrict the Landlord from making the decisions it is entitled or required to make pursuant to this Lease. Section 10.07. Landlord’s Rights Upon Tenant Event of Default. If a Tenant Event of Default under the Lease has occurred and is continuing, the Landlord may not terminate the Lease or exercise its other remedies under with the Lease, unless: (a) The Landlord has given the Lender written notice of the Tenant Event of Default as required by this Lease and the Leasehold Mortgage; 32 24 (b) The Landlord has given Lender a second written notice, sent by certified mail, return receipt requested, to Lender at the address set forth for notice in the Leasehold Mortgage, advising that Tenant has failed to cure the Tenant Event of Default within the time proscribed in the Lease; and (c) The Lender fails to do one of the following within 60 days after receipt of the second notice from Landlord: remedy the Tenant Event of Default; acquire Tenant’s leasehold estate in the Parcel; or commence foreclosure or other appropriate proceedings as set forth in the Lease and within the time specified in the Lease. As long as the Lender is actively engaged in curing the Tenant Event of Default or is proceeding to foreclose the Leasehold Mortgage, Landlord will not terminate this Lease. Section 10.08. Lender’s Rights Upon Tenant Event of Default. If Tenant defaults under the Lease, Lender -- to prevent a termination of the Lease or the exercise by the Landlord of its other remedies -- has the right, but not the obligation: (a) To pay all of the Rent and other payments due under the Lease, including any accrued interest; (b) To provide any insurance, to pay or in good faith contest any Impositions (including any penalties), and to make any other payments due under the Lease; (c) To enter upon the Premises or any part thereof, and do all things necessary to cure the Tenant Event of Default and protect Lender’s security; (d) To continue to construct and complete the Improvements, to make any repairs to the Improvements, and to do any other act or thing required of Tenant under the Lease, in order to prevent the termination of the Lease or the exercise by the Landlord of its other remedies under the Lease. Section 10.09. Lender’s Cure Periods. If a Tenant Event of Default occurs, Lender will have 60 days after receiving written notice from the Landlord setting forth the nature of the Event of Default to cure it. If the Tenant Event of Default cannot be cured within 60 days, Lender will have an additional 60 days to cure the Event of Default, as long as Lender has commenced curing within 60 days and continues to diligently pursue the cure, or such additional time as may be reasonably approved by the Landlord in writing. Lender will have the right (but without any obligation to do so), without notice to or demand on Tenant, to enter upon the Premises or any part thereof, and do all things necessary to cure the Tenant Event of Default and protect its security. Section 10.10. Limitation of Lender Liability. Lender shall not become liable for the obligations of this Lease unless and until it becomes the owner of the leasehold estate created by this Lease by foreclosure, assignment in lieu of foreclosure or otherwise, and thereafter Lender shall remain liable for such obligations only as long as Lender remains the owner of the leasehold estate. Section 10.11. Landlord ’s Forbearance Upon Default. The Landlord will refrain from taking action under the Lease based upon Tenant’s Event of Default, including bankruptcy and other insolvency defaults, as long as all Rent and other payments required to be paid by Tenant continue to be paid in accordance with the Lease. 33 25 Section 10.12. Extension of Time for Lender to Acquire Property. If the Lender is prohibited from commencing or prosecuting a foreclosure or other appropriate proceedings because of any process, injunction, or action by any court having jurisdiction of any bankruptcy, debtor rehabilitation or insolvency proceedings involving Tenant, then the times specified for Lender to cure or commence to cure the default will be extended for the period of such prohibition. Section 10.13. Notices of Tenant Non-compliance. The Landlord shall simultaneously send, by certified mail, to any Lender whose contact information has been provided to Landlord a copy of any notice that Landlord sends to Tenant relating to non- compliance with the terms of this Lease. Section 10.14. Mortgage Foreclosure. Landlord ’s consent will not be required for any foreclosure of a Leasehold Mortgage or any sale under a Leasehold Mortgage (whether by judicial proceedings or by any power of sale contained in the Leasehold Mortgage or applicable law), or for any conveyance of Tenant’s Leasehold Interest to Lender by deed in lieu of foreclosure. If the Lender complies with the provisions of this Lease pertaining to Leasehold Mortgages, the foreclosure of a Leasehold Mortgage will not constitute a default under this Lease. Section 10.15. Lender as Successor Tenant. After the completion of any foreclosure of a Leasehold Mortgage, or any sale or conveyance to Lender or a foreclosure sale purchaser following the foreclosure of a Leasehold Mortgage, the Landlord shall recognize the Lender, or any other foreclosure sale purchaser, as the successor Tenant under the Lease. Section 10.16. Multiple Leasehold Mortgages. If there are two or more Leasehold Mortgages or foreclosure sale purchasers (whether under the same or different Leasehold Mortgages), the Landlord has no duty or obligation whatsoever to determine the relative priorities or rights of the holders of such Leasehold Mortgages or foreclosure sale purchasers. Section 10.17. Subsequent Leasehold Mortgages. If a Lender or foreclosure sale purchaser either (a) assigns or transfers its interest under this Lease after acquiring the same by foreclosure or by acceptance of a deed in lieu of foreclosure; or (b) subsequently assigns or transfers its interest under a new lease entered into pursuant to the Leasehold Mortgage provisions of this Lease; and in connection with any such assignment or transfer, Lender or a foreclosure sale purchaser takes back a mortgage encumbering the Leasehold Interest to secure a portion of the purchase price, Lender or the foreclosure sale purchaser will be entitled to receive the benefit of the provisions of this Lease intended for the benefit of a Lender or the holder of a Leasehold Mortgage. Section 10.18. Termination of Lease if Lender Fails to Cure Default. If a Lender fails to cure a Tenant Event of Default as provided in this Lease, the Landlord has the right to terminate this Lease by reason of the uncured Tenant Event of Default , or which cure period may be extended in writing, in the Landlord’s reasonable discretion. The Landlord shall give written notification of the termination of the Lease to all Lenders. Section 10.19. Lender’s Right to New Lease. If due to a Tenant Event of Default or any other reason this Lease is terminated, Lender will be entitled to receive a new lease from the Landlord having the same relative priority as this original Lease, provided Lender agrees to take prompt steps to cure all Events of Default of the original Tenant other than insolvency 34 26 defaults and such other defaults, if any, as are not susceptible of being cured by the Lender. Section 10.20. Terms and Conditions of New Lease with Lender. The new lease from the Landlord to the Lender will contain the same covenants, conditions and agreements contained in this Lease, other than any requirements that have been satisfied by Tenant or Landlord prior to termination of the Lease. The Landlord ’s delivery of any Improvements to Lender pursuant to a new lease will be made without any representation or warranty of any kind or nature, either express or implied, and the Lender will take any Improvements “as -is” in their then current condition. Upon execution and delivery of a new lease to Lender, Lender will be responsible at its sole cost and expense for taking whatever action may be necessary to cancel and discharge this Lease and to remove Tenant and any other occupant (other than as allowed by Lender or the Landlord) from the Premises, or such additional time as may be necessary and approved by the Landlord in its reasonable discretion. Section 10.21. Lender’s Failure to Enter Into New Lease. If a Lender sends written notice to the Landlord electing to enter into a new lease and then fails to do so, the Landlord will send written notice to any other Lenders affording them 30 days from the date of the notice to elect to obtain a new lease. If any Lender elects to obtain a new lease, the Landlord will enter into a new lease of the Property to Lender for the remainder of the Term, provided that at the time the Lender elects to obtain a new lease, the Lender complies with the provisions of this Lease pertaining to new leases. Section 10.22. Lender’s Payment of Additional Rent. If a Lender is required to pay Additional Rent in order to cure a default by Tenant, and the amount of Additional Rent due cannot be determined by the Lender without possession of the Premises and Facility, then the Lender may pay the amount of Additional Rent which was paid for the immediately previous period. The amount of Additional Rent due will be adjusted upward or downward within 90 days after Lender obtains possession of the Premises. Section 10.23. No Waiver of Tenant’s Obligations or Landlord ’s Rights. No provision of this Lease or of any Leasehold Mortgage shall be deemed or construed to: (a) Relieve Tenant from the full and faithful observance and performance of the covenants, conditions and agreements contained in this Lease; or (b) Relieve Tenant from any liability for the non-observance or non- performance of the covenants, conditions and agreements contained in this Lease; or (c) Require, allow or provide for the subordination of the Landlord ’s rights, title and interest in the Property, the Improvements, or this Lease to the lien of any Leasehold Mortgage or to any Lender; or (d) Require the Landlord to join in or be liable under any Leasehold Mortgage. Section 10.24. Payment of Landlord ’s Attorney’s Fees. Any Lender that seeks the benefit of the terms and provisions of this Lease pertaining to Leasehold Mortgages will be required to pay the Landlord ’s Attorney’s Fees associated with the Landlord ’s duties and responsibilities under this Lease which the Landlord does not otherwise recover from Tenant. 35 27 ARTICLE 11. CONDEMNATION Section 11.01 If the whole of the Premises shall be taken for any public or quasi-public use under any statute or by right of eminent domain or by private purchase in lieu thereof, then this Lease shall automatically terminate as of the date that possession has been taken. If only a part of the Premises shall be so taken (or so purchased) and the part not taken cannot reasonably be used by Tenant for the continued operation of its business, as reasonably determined by Tenant, Tenant shall have the right, but not the obligation, to terminate this Lease by giving written notice of termination to Landlord on or prior to the date one hundred and eighty (180) days after the date of such taking (or purchase), and upon the giving of such a notice of termination, the Term of this Lease shall expire and come to an end on the last day of the calendar month in which such notice shall be given, with the same force and effect as if said day had been originally fixed herein as the expiration date of the Term of this Lease, or any renewals or extensions thereof. Section 11.02 Landlord and Tenant shall each notify the other if it becomes aware of a threatened or possible taking (including any letter of interest from the condemning authority or its designee), or the commencement of any proceedings or negotiations which might result in a taking. Landlord and Tenant shall have the right to appear in such proceedings, as their interests may appear, and be represented by their respective counsel. In the event of such a taking (or such purchase) whereby this Lease shall terminate or shall be terminated under the provisions of Section 10.01 above, Landlord shall be entitled to claim and recover from the condemning authority all compensation available to the fee estate owner under applicable law, including the Value of the Fee Estate and the lost income stream therefrom, and Tenant shall be entitled to claim and recover (to the extent recoverable under applicable law) from the condemning authority an amount equal to the value of the Improvements. ARTICLE 12. ASSIGNMENT AND TRANSFERS Section 12.01 Except as expressly permitted in this Lease, including without limitation Article 10, Tenant shall not assign, transfer, or otherwise dispose of this Lease, or sublet or encumber the Premises or any part thereof, or assign, transfer, or otherwise dispose of the Facility, without the prior written approval of Landlord, in its sole discretion. In the event of an assignment or sublease of this Lease, or assignment or transfer of the Facility approved by Landlord, all terms and conditions of this Lease shall extend to and be bindi ng upon such assignee and/or sublessee; provided, however, such assignee and/or sublessee shall execute an instrument of assumption of liabilities and obligations hereunder in form and content satisfactory to Landlord, at Tenant’s expense if requested by Landlord to further effectuate and evidence the same. The failure to approve of any assignment or sublease of this Lease by Landlord shall not result in the waiver of any right to consent to any further assignment or subletting of this Lease. Section 12.02 Ownership or Control of Tenant. Tenant represents and warrants that Tenant has not made, created or suffered any Transfers as of the Execution Date of this Lease, and that the entities and individuals with an ownership and/or controlling interest in Tenant as of the Execution Date of this Lease shall be provided to Landlord on or before the Effective Date, together with their percentage and character of ownership. Tenant shall have the right, subject to the applicable provisions of this Article 12, to transfer or assign an ownership or controlling interest in Tenant to an Affiliate or Person (hereinafter called the 36 28 "Transferee") with the prior written consent of Landlord, which consent shall not be unreasonably withheld provided that: (i) the Facility is Substantially Completed; (ii) the Transferee is not a debtor or debtor-in-possession in a voluntary or involuntary bankruptcy proceeding; (iii) the Transferee has demonstrated financial ability to operate and maintain the Facility; (iv) the Transferee assumes all of Tenant's obligations under this Lease thereafter arising and Landlord is provided with a fully executed copy of the assignment and assumption agreement; and (v) the Transferee possesses the appropriate level of expertise and experience in operating and maintaining the Facility, as reasonably determined by the Landlord. If an interest in Tenant is sold, transferred or assigned in violation of the provisions of this Article 12, such sale, transfer or assignment shall be void and of no force and effect against Landlord. Neither any assignment, transfer nor any subleasing, occupancy or use of the Premises or any part thereof by any Person, nor any collection of Rent by Landlord from any Person other than Tenant, nor any application of any such Rent shall, in any circumstances, relieve Tenant of its obligations under this Lease on Tenant's part to be observed and performed. ARTICLE 13. ESTOPPEL CERTIFICATES Section 13.01 Landlord and Tenant shall, at any time and from time to time, within twenty (20) days following receipt of written request from the other party, execute, acknowledge and deliver a written statement certifying: (a) that this Lease is in full force and effect and unmodified (or, if modified, stating the nature and date of such modification); (b) the Commencement Date; (c) the then Expiration Date; (d) whether any Extension Options have been exercised and describing the Extension Term(s) to which such option(s) relate; (e) the dates to which the Rent reserved hereunder has been paid and the amount of such Rent; (f) whether or not, to the best knowledge of the signer, the other party is in default in performance of any of its obligations under this Lease (and, if so, specifying each such default of which the signer shall have knowledge); (g) if the signer is the Tenant, that, to Tenant’s knowledge after reasonable inquiry, Tenant is not in default of any of its obligations under this Lease; and as to such other matters regarding this Lease as may reasonably be requested. Failure to deliver such statement within said twenty days' period shall be conclusive as to the facts stated in the requested certification with respect to items (a) through (g) above (such items (a) through (g) being binding upon the party who failed to deliver such certification). ARTICLE 14. QUIET ENJOYMENT Section 14.01 Landlord covenants that if and so long as Tenant observes and performs each and every covenant, agreement, term, provision and condition of this Lease on the part of Tenant to be observed and performed, Tenant shall quietly enjoy the Premises without hindrance or molestation of Landlord or any person acting by or through Landlord, subject to the covenants, agreements, terms, provisions and conditions of this Lease. Except for negligent or more culpable acts or omissions by the Landlord, in no event will the Landlord be liable for, and Tenant expressly waives, any claim for damages of any kind whatsoever, including without limitation, damages for loss of income, revenue, profit or value. If the Landlord is acting in its governmental capacity, any liability under this Section will only be to the extent permitted by applicable law and, subject to the provisions and monetary limitations of Section 768.28, Florida Statutes, as may be amended, which statutory limitations will be applied as if the parties had not entered into this Lease. 37 29 ARTICLE 15. WAIVER OF JURY TRIAL Section 15.01 LANDLORD AND TENANT EACH WAIVE ANY RIGHT IT MAY HAVE TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER AGAINST THE OTHER ON ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS LEASE, THE RELATIONSHIP OF LANDLORD AND TENANT, ANY COURSE OF DEALINGS BETWEEN THE PARTIES, ANY CLAIM IN TORT OR IN CONTRACT BY EITHER PARTY, OR TENANT’S USE OR OCCUPANCY OF THE PREMISES, INCLUDING ANY CLAIM OF INJURY OR DAMAGE. ARTICLE 16. NOTICES Section 16.01. Except as may be provided in this Lease, any notice or other communication under this Lease, other than any Rent bill, shall be in writing and shall be sent by United States express mail or by a nationally recognized overnight delivery service that provides receipts or by hand delivery addressed to the party for whom intended at its Notice Address. Any such notice or other communication shall be deemed given and received when delivered or refused or when delivery is attempted on a Business Day during normal business hours. Rent bills to Tenant may be sent in the manner set forth above or may be sent by first class mail, provided that nothing contained in this Section shall be deemed to require Landlord to bill or otherwise make a demand on Tenant for the payment of Rent, except where this Lease expressly requires billing. Section 16.02. Either party may, by notice to the other party, designate a different address (or addresses) for notices and other communications intended for it, which designation shall become effective on the date such notice is received. Section 16.03. Tenant’s Address. For purposes of receiving notice, Tenant’s address is 2600 South Ocean Blvd., Apartment 8D, Boca Raton, FL 33432. Copies of all notices should also be sent to Tenant’s attorney, Rasco Klock Perez & Nieto, Attn: Gabriel Nieto, 2555 Ponce de Leon Blvd., Suite 600, Coral Gables, FL 33134, with a courtesy email copy to gnieto@rascoklock.com. Section 16.04. Landlord/City’s Address: For purposes of receiving notice, Landlord’s address is South Miami City Hall, 6130 Sunset Drive, South Miami, FL 33134. Copies of all notices should also be sent to Landlord’s attorney, Weiss Serota Helfman Cole & Bierman, Attn: Anthony Recio, 2800 Ponce de Leon Blvd., Suite 1200, Coral Gables, FL 33134, and the City Clerk, Nkenga “Nikki” Payne, CMC, FCRM, at 6130 Sunset Drive South Miami, FL 33143. ARTICLE 17. END OF TERM AND EXTENSION OPTIONS Section 17.01. Provided there is no uncured default by Tenant under this Lease, and subject to Landlord’s right to terminate in Section 17.06, Tenant is hereby granted the option to extend the term of this Lease for three (3) successive additional terms of ten (10) years each (each such additional term being referred to as an "Extension Term," and each such option being referred to as an "Extension Option"). Each such Extension Term shall commence at the expiration of the prior term. 38 30 Section 17.02. Each such Extension Term shall be upon all terms and conditions of this Lease. Section 17.03. Each Extension Option shall be exercised by Tenant by written notice of its intent to extend delivered to Landlord at least 180 days prior to the end of the then- current term. Section 17.04. On the Expiration Date, as extended by any Extension Option, at Landlord’s written election made at least 120 days prior to the Expiration Date, Tenant shall either: (i) peaceably and quietly surrender the Premises to Landlord, together with all Improvements remaining on the Premises, in good order, condition and repair excepting reasonable wear and tear and damage that is not Tenant’s obligation to repair, free and clear of all occupants, liens, and other encumbrances; or (ii) peaceably and quietly surrender the Premises to Landlord vacant, broom clean, in good order, condition and repair excepting reasonable wear and tear and damage that is not Tenant’s obligation to repair, free and clear of all occupants, liens, and other encumbrances (except for liens and encumbrances caused or expressly consented to by Landlord), and free and clear of all Improvements. At least 180 days prior to the Expiration Date, as extended by any Extension Option, Tenant shall perform a Phase 1 and/or Phase II environmental site assessment(s) of the Premises, shall provide Landlord with a copy of the assessment(s), and shall take any required remedial action to address and cure any violation of Environmental Laws, with the exception of Existing Conditions. Section 17.05. If Tenant remains in possession of all or any part of the Premises after the expiration of the Term and all Extension Options, with the express consent of Landlord: (a) such tenancy will be deemed to be a periodic tenancy from month-to-month only; (b) such tenancy will not constitute a renewal or extension of this Lease for any further Term; and (c) such tenancy may be terminated by either party upon 30 days prior written notice to the other party. Section 17.06. Landlord shall have the right without cause and for any reason to terminate this Lease by providing Tenant with written notice of termination at least twenty- four (24) months prior to the end of the Initial Term or any Extension Term, such termination to be effective upon expiration of such Initial Term or any Extension Term. If this Lease is terminated, the Extension Options granted in this Article with respect to periods subsequent to such termination or expiration shall be deemed null and void. Upon the effective date of termination of this Lease pursuant to this Section, Tenant shall immediately terminate its operations and use of the Premises, vacate the Premises and return the Premises to Landlord in accordance with section 17.04. At least 180 days prior to vacating the Premises. Tenant shall perform a Phase 1 and/or Phase II environmental site assessment(s) of the Premises, and shall provide Landlord with a copy of the assessment(s), and shall be take any required remedial action to address and cure any violation of Environmental Laws, with the exception of Existing Conditions. Section 17.07. If this Lease is terminated or expires for any reason, the Extension Options granted in this Article with respect to periods subsequent to such termination or expiration shall be deemed null and void. Section 17.08. At the end of the third (3rd) Extension Term, or upon the expiration 39 31 or sooner termination of this Lease, the provisions of this Article terminate, and there shall be no further extension of the Term of this Lease. Section 17.9. On the Commencement Date and throughout the Term of the Lease, Tenant shall be required to provide security to the Landlord in the amount of $500,000, in the form of a bond or irrevocable letter of credit, in form acceptable to Landlord, so that upon expiration of the Term or termination of this Lease, funds shall be available to secure Tenant’s obligations as set forth in Section 17.04 (at Landlord’s election) to demolish the Improvements and Facility on the Premises and restore the Premises to their original condition prior to the Commencement Date. Section 17.10. Ownership of Improvements During Lease Term. Prior to the expiration or termination of this Lease, title to the Improvements will remain in Tenant, and will not vest in the City by reason of its ownership of fee simple title to the Parcel. Section 17.11. Ownership Upon Early Termination. If this Lease terminates prior to the expiration of the Lease Term, based on a mutual agreement between the parties or a final order from a court with jurisdiction, and if, at that time, any Lender exercises its option to obtain a new lease for the remainder of the Lease Term in accordance with this Lease, title to the Improvements will automatically pass to, vest in and belong to the Lender or any permitted designee or nominee of the Lender, until the expi ration or termination of the term of the new lease. Section 17.12. Surrender of Leased Property. Upon the expiration of the Lease Term or the earlier termination of this Lease by Landlord or by mutual agreement of the parties or a final order from a court with jurisdiction, title to the Improvements will automatically pass to, vest in and belong to the City or its successor in ownership, free and clear of all debts, mortgages, encumbrances, and liens. It shall be lawful for the City or its successor in ownership to re-enter and repossess the the Improvements without process of law. Section 17.13. Vesting of Title. To confirm the automatic vesting of title as provided in this Article 17, City and Tenant each will execute and deliver such further assurances and instruments of assignment and conveyance as may be reasonably required by the other for that purpose. ARTICLE 18. MEMORANDUM OF LEASE On the Effective Date, Landlord and Tenant shall execute and deliver to the other, a memorandum of this Lease (the “Memorandum of Lease”), which shall be in a form that is reasonably acceptable to Landlord and Tenant, together with such documents as are required to record such Memorandum of Lease in the Public Records of Miami-Dade County, Florida. Landlord, at Landlord’s expense, shall record such Memorandum of Lease. If required, the parties shall modify such Memorandum of Lease to reflect any requirements of the recording office. If this Lease is amended, Landlord and Tenant shall, promptly upon the request of either party, execute and deliver an amendment of such Memorandum of Lease giving notice of such amendment. The party requesting such amendment shall pay the recording fees imposed in connection therewith. At the expiration or sooner termination of this Lease, each party shall, at the request of the other party, execute and deliver an instrument evidencing the 40 32 termination of this Lease; but the failure of either party to execute and deliver such instrument shall not prevent or affect the termination of this Lease or serve to reinstate this Lease. ARTICLE 19. REPRESENTATIONS OF LANDLORD AND TENANT Section 19.01. Representations and Covenants by Landlord. Landlord hereby covenants and agrees with Tenant that: (a) Warranty of Title: Landlord warrants and represents that it is the owner in fee simple of the Premises, and has the right to make this Lease for the Term and on the conditions herein set forth. (b) Warranty against Encumbrances: Landlord further covenants and warrants that this Lease is not subject and subordinate to any mortgages, liens or encumbrances whatsoever except current taxes. (c) Power and Authority. Landlord has full power and authority to enter into this Lease and to perform all of its obligations hereunder. The execution and delivery of this Lease and the performance by Landlord of its obligations hereunder have been duly authorized by all requisite action, and no further action or approval is required in order to constitute this Lease as a binding and enforceable obligation of Landlord. (d) No Violations. Landlord has no actual knowledge of any uncured violations of any statute, regulation, or other law affecting any portion of the Premises, and Landlord shall give to Tenant prompt notice of any such violation caused by Landlord prior to the end of the Permit Application Period. (e) Condemnation. Landlord has received no notice of any proposed or pending public improvements or any pending or contemplated condemnation proceedings affecting the Premises. (f) No Other Agreements. Landlord represents that this Agreement is the only active agreement for the lease of the Premises. Landlord agrees not to enter into any other leases, purchase agreements or options to purchase, or any other similar agreements with respect to the Premises after the Execution Date for the Term of the Lease. Section 19.02. Representations and Covenants by Tenant. Tenant represents and warrants: (a) that this Lease has been duly authorized, executed and delivered by such party and constitutes the legal, valid and binding obligation of such party; (b) that there are no actions, suits or proceedings pending or, to the knowledge of such party, threatened against or affecting Tenant, at law or in equity or before any Governmental Authority which would impair the Tenant’s ability to perform its obligations under this Lease; 41 33 (c) that the consummation of the transactions hereby contemplated and the performance of this Lease will not result in any breach or violation of, or constitute a default under any agreement, lease, bank loan or credit agreement; (d) If Tenant is not an individual, Tenant shall provide to Landlord, upon Landlord’s request, evidence that the execution and delivery of this Lease have been duly authorized by Tenant and that the person or persons executing and delivering this Lease on behalf of Tenant have been duly authorized to do so, together with a certified copy of Tenant’s articles of incorporation, partnership agreement or operating agreement, as applicable, and all amendments thereto; (e) Tenant has the experience and expertise necessary to operate the Facility for the Permitted Use; (f) Tenant by the Commencement Date shall have secured any and all additional facilities or infrastructure necessary to operate the Facility, including waste disposal sites and railway contracts; (g) Tenant is not now the subject of disciplinary proceedings or code enforcement violations based on failure to comply with Laws and Governmental Requirements in operating similar waste facilities; (h) Tenant has or will obtain all certifications and Governmental Approvals necessary to operate the Facility, and has no knowledge of any circumstances which would render Tenant ineligible for such certifications or Governmental Approvals; and (i) Tenant has the financial capacity to construct and operate the Facility. ARTICLE 20. DEFAULT; REMEDIES Section 20.01 Default by Tenant. Each of the following occurrences is an “Event of Default” by Tenant under the Lease: (e) Failure to Pay Money. If Tenant fails to pay any Base Rent, Additional Rent, Impositions or any other payment of money within five (5) days after the payment is due. (i) If Tenant fails to pay the amount due to the Landlord within five (5) days after the payment is due, Tenant will be required to pay the delinquent payment plus a late fee equal to 5% of the amount then due and owing no later than the 30th day after the date the payment was originally due; (ii) If Tenant fails to pay the amount due by the 30th day after the original due date, the Landlord is entitled to collect the greater of the late fee or interest at the Default Rate of 12 percent per annum until the amount due under the Lease is paid; (iii)After the 30th day, the Landlord is entitled to exercise any and all remedies provided in this Lease for a Tenant Event of Default subject to the provisions of Article 10 and other applicable Lease provisions; and 42 34 (iv) All interest, late fees, penalties, contributions and all other payments of money required to be paid to the Landlord by Tenant under this Lease other than Rent, will be treated as Additional Rent or deducted and payable to Landlord from the Security Deposit. (f) Bankruptcy. (i) If any petition is filed by Tenant, as debtor, seeking relief under Chapters 7 or 11 of the United States Bankruptcy Code or any successor code; (ii) If any involuntary petition is filed against Tenant, as debtor, instituting a case under Chapters 7 or 11 of the United States Bankruptcy Code or any successor code and Tenant is unable to dismiss the case within 90 days after filing. (iii)If Tenant admits in writing its inability to pay its debts, or if a receiver, trustee or other court appointee is appointed for all or a substantial part of Tenant’s property and the receiver, trustee or other appointee is not discharged within 90 days after appointment; (iv) If Tenant’s Leasehold Interest in the Parcel or the Improvements is levied upon or attached by process of law, and such levy or attachment is not discharged within 90 days after the levy or attachment; or (v) If a receiver or similar type of appointment or court appointee or nominee of any name or character is made for Tenant or its property, and such receiver, appointee, or nominee is not discharged within 90 days after appointment. (g) Failure to Perform Other Covenants, Conditions and Agreements. If Tenant fails to comply with any of the other covenants, conditions and agreements in the Lease, and the failure continues for a period of 60 days after Tenant receives written notice from the Landlord specifying the Tenant’s failure to perform any of the Lease covenants, conditions and agreements. (i) If Tenant’s failure to comply with the covenants, conditions and agreements in the Lease is capable of cure, but cannot reasonably be cured within 60 days, then Tenant will have an additional commercially reasonable time within which to cure the Tenant Event of Default, but only if: a. Tenant commences to cure the default within the 60-day period and thereafter continues to diligently perform all actions necessary to cure the default; and b. The Premises and Facility continue to operate in the ordinary course of business, to the extent commercially reasonable taking into account the nature of Tenant’s alleged failure to perform according to the covenant, condition or agreement in question. 43 35 (h) Default Under Leasehold Mortgage. The provisions of this subsection (h) are subject to the terms and conditions of Article 10. If there is a default by Tenant in any Leasehold Mortgage or any other agreement arising out of the Lease that is not cured within the earlier of either (a) the applicable grace period in the defaulted agreement, or (b) 60 days after Tenant receives written notice from the Landlord specifying the Tenant’s default. (i) If Tenant’s default under the Leasehold Mortgage or other agreement is capable of cure, but cannot reasonably be cured within 60 days, then Tenant will have an additional commercially reasonable time not to exceed 120 days within which to cure the default but only if: a. Tenant commences to cure the default within the 60-day period and thereafter continues to diligently perform all actions necessary to cure the default; and b. The Facility continues to operate in the ordinary course of business, to the extent commercially reasonable taking into account the nature of Tenant’s alleged failure to perform according to the covenant, condition or agreement in question. (i) Cessation of the Work. During construction, if Tenant voluntarily ceases construction of the Improvements for a period in excess of 60 consecutive days (subject to and extended by Force Majeure delays) and fails to resume construction within 30 days after receiving written notice from the Landlord. (j) Unauthorized Sale, Assignment or Transfer. If Tenant, in violation of the provisions of this Lease: (ii) Sells, assigns or transfers its interest in this Lease, the Premises or the Facility, or in the Tenant entity; (iii) Attempts to consummate any sale, assignment or transfer by entering into an agreement to sell or assign its interest in the Lease, the Premises or the Facility, or Tenant entity; or (iv) Otherwise agrees to a sale, assignment or transfer without complying with the provisions of this Lease. Section 20.02 Landlord’s Remedies for Tenant’s Default. (a) Legal and Equitable Remedies. If a Tenant Event of Default occurs, the Landlord is entitled to seek all legal and equitable remedies available under Florida law. (b) Termination of Lease. If the Landlord obtains the right to terminate this Lease, Tenant shall quit and peaceably surrender to Landlord the Premises and the Improvements in accordance with Article 17 and the terms of this Lease. (i) Termination of Tenant’s Interest. Upon a termination of this Lease, all rights and interest of Tenant in and to the Premises and the Improvements will terminate. However, a termination of the Lease will not release Tenant from 44 36 any obligation expressly provided herein to indemnify Landlord for any acts which occurred prior to the termination of the Lease. (ii) Landlord’s Rights to Plans and Specifications. If this Lease is terminated after the Commencement Date but prior to the completion date of the Improvements, Tenant agrees that, to the extent assignable, the Landlord is entitled to use the Plans, specifications, designs, Governmental Approvals, and permits of the Tenant for use in the development and construction of the Improvements. Landlord is entitled to use these documents without payment or further permission from Tenant. Section 20.03. Default by the Landlord. (a) Landlord’s Failure to Perform. Landlord will be in default under the Lease if the Landlord fails to perform any obligation or fulfill any covenant or agreement of the Landlord set forth in the Lease, and the failure continues for 60 days following the Landlord’s receipt of written notice of the non-performance. (b) Cure of Landlord Default. The Landlord will not be in default of this Lease if: (i) The Landlord provides Tenant with a written response within the 60-day day period indicating the status of the Landlord’s resolution of the breach and providing for a commercially reasonable schedule to correct same; or (ii) With respect to any breach that is capable of being cured but that cannot reasonably be cured within the 60-day period, if the Landlord commences to cure the breach within the 60-day period (or as soon thereafter as is reasonably possible) and diligently continues to cure the breach until completion. (b) Tenant’s Remedies for Landlord’s Default. If a Landlord Event of Default occurs, the Tenant shall be entitled to seek all legal and equitable remedies available under Florida law. Section 20.04. Unavoidable Delay. Neither the Landlord nor Tenant, as the case may be, will be considered in breach of or in default of any of their respective non -monetary obligations under the Lease as a result of an unavoidable delay due to strikes, lockouts, acts of God, states of emergency declared by the federal or state government that directly apply to the Premises, inability to obtain labor or materials due to governmental restrictions, riot, war, hurricane or other similar causes beyond the commercially reasonable control of a party (in each case, an event of “Unavoidable Delay ”). Upon the occurrence of an Unavoidable Delay, the applicable time period will be extended for the period of the Unavoidable Delay event. Section 20.05. Remedies Cumulative; Waiver. The rights and remedies of the parties to this Lease, whether provided by law or by this Lease, are intended to be cumulative and concurrent. The exercise by either party of any one or more of its remedies will not preclude the exercise by a party, at the same or different times, of any other remedies for the same default or breach, or of any of its remedies for any other default or breach by the other party. The waiver by a party of any default or Event of Default under this Lease will not extend to or affect any other existing or subsequent Event of Default, or impair any rights, powers or 45 37 remedies of a party in connection with any other default or Event of Default. A party’s delay or omission in exercising any right, power or remedy will not be construed as a waiver of any default or Event of Default or constitute acquiescence to the default. Section 20.06. Landlord’s Right to Cure Tenant Default. If Tenant defaults in the performance of any term, covenant or condition to be performed under the Lease, the Landlord may, in its sole discretion, after notice to the Tenant and after the expiration of the applicable cure periods (or without such notice and cure in the event of an emergency), cure the default on behalf of the Tenant, at the expense of Tenant. Section 20.07. Sums Paid by Landlord to Cure Tenant Default. If the Landlord is compelled to pay, or elects to pay, any sum of money, or performs any act which requires the payment of any sum of money, or is compelled to incur any expense in the enforcement of its rights under the Lease, such sums will be deemed Additional Rent. Tenant shall repay to Landlord the sums expended by Landlord with interest at the Default Rate, upon demand. ARTICLE 21. DAMAGE AND DESTRUCTION The damage, destruction or partial destruction of any portion of the Improvements shall not release Tenant from any obligations under this Lease. Tenant shall, at its own expense, after settling any insurance claim (but without regard to the sufficiency of insurance proceeds), promptly repair and restore the damaged or destroyed portion of the Improvements to no less than its original condition and in a manner consistent with the then current governing rules and standards for Facilities in accordance with Governmental Requirements and Law within 180 days after the date of such casualty subject to extension for Unavoidable Delays. Tenant shall use any and all proceeds of insurance covering the damage or destruction for repair or replacement of the damaged or the destroyed portion of the Improvements. ARTICLE 22. MISCELLANEOUS Section 22.01. Amendments. No amendment to this Lease is binding on either party unless in writing and signed by both parties. The City is not obligated to spend any money or undertake any obligation in connection with an amendment proposed by Tenant. If Tenant requests an amendment to the Lease or any other action by City, Tenant must reimburse City for all third-party costs reasonably incurred by City (including but not limited to costs of third- party consultants and attorneys). Before the City takes action regarding any request, Tenant must deposit with the City the estimated amount of third-party costs, as reasonably determined by the City. Section 22.02. Receipt or acceptance of Rent by Landlord and payment of any Rent by Tenant shall not be deemed to be a waiver of any default under the covenants, agreements, terms, provisions and conditions of this Lease, or of any right which Landlord or Tenant, as the case may be, may be entitled to exercise under this Lease. Failure to insist upon the strict performance of any of the provisions of this Lease or to exercise any right, remedy or election herein contained or permitted by law shall not constitute or be construed as a waiver or 46 38 relinquishment for the future of such provision, right, remedy or election, but the same shall continue and remain in full force and effect. The waiver by either party of any breach of this Lease shall not be deemed a waiver of any future breach. Section 22.03. Severability. If any term or provision of this Lease or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Lease, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Lease shall be valid and be enforced to the fullest extent permitted by Law. Section 22.04. Governing Law; Venue. This Lease is governed by and shall be construed and enforced in accordance with the laws of the State of Florida. This Lease is subject to and must comply with the Charter and City Code of the City of South Miami, as they exist on the date of execution of the Lease, with conflict resolved in favor of the Charter and Code. Venue shall be exclusively in Miami-Dade County. Section 22.05. Successors and Assigns. The covenants, agreements, terms, provisions and conditions of this Lease shall be binding upon and inure to the benefit of the successors and assigns of Landlord and the permitted successors and assigns of Tenant. Section 22.06. Upon the expiration of the Term of this Lease, neither party shall have any further obligation or liability to the other except as otherwise provided in this Lease and except for (a) such obligations as by their nature or under the circumstances can only be, or by the provisions of this Lease may be, performed after such expiration, and (b) any liability for Rent, and (c) any liability for acts or omissions occurring during the Term. Section 22.07. Prevailing Party. In the event either party to the Lease institutes legal proceedings in connection with the Lease, the prevailing party will be entitled to recover its costs of suit, including without limitation, its Attorneys’ Fees. Section 22.08. Patriot Act and Homeland Security. Tenant represents and warrants that neither Tenant, its partners, members, principal stockholders, any other constituent entities and Affiliates of Tenant, nor any person or entity that owns any direct or indirect beneficial interest in Tenant is, or is acting directly or indirectly for or on behalf of any group, entity, or nation, named by any Executive Order of the President of the United States or the United States Treasury Department as a terrorist or other “specifically designated national and blocked person” on the most current list published by the U.S. Treasury Department Office of Foreign Assets Control at its official website, <http://www.treas.gov/ofac/t11> or at any replacement website or other replacement official publication of such list or other person, entity, nation or transaction banned or blocked pursuant to any law, order, rule or regulation that is enforced or administered by the United States Office of Foreign Assets Control or any successor entity, agency or department (an “SDN”). Tenant further represents and warrants that it (i) is currently in compliance with and will at all times during the Term of this Lease (including any extension thereof) remain in compliance with the regulations of the Office of Foreign Asset Control of the Department of the Treasury and any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action relating thereto; and (ii) has not used and will not use funds from illegal activities for any payment made under the Lease. 47 39 Section 22.09. This Lease represents the entire agreement of the parties with respect to the Premises, and, accordingly, all prior understandings and agreements between the parties with respect to the Premises are merged into this Lease, which alone fully and completely expresses the agreement of the parties. Section 22.10. The table of contents, captions, headings and titles in this Lease are solely for convenience of reference and shall not affect its interpretation. Section 22.11. This Lease shall be construed without regard to any presumption or other rule requiring construction against the party causing this Lease to be drafted. Section 22.12. All terms and words used in this Lease shall be deemed to include any other number and any other gender as the context may require. Section 20.13. The submission of drafts of and comments to this Lease, the negotiation of this Lease, and the exchange of correspondence concerning the negotiation and execution of this Lease shall have no binding force or effect and shall confer no rights nor impose any obligations, including brokerage obligations, on either party. This Lease shall become a binding agreement only after both Landlord and Tenant have executed this Lease and duplicate originals thereof (including any counterparts) shall have been delivered to the respective parties. Section 22.14. Counterparts. This Lease may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. Section 22.15. No Brokers. City and Tenant warrant and represent to each other that neither party has engaged a real estate broker or other person entitled to payment of a commission in connection with this Lease. Tenant is responsible for, and will hold the City harmless with respect to, the payment of any commission claimed by or owed to any real estate broker or other person retained by Tenant who is entitled to a commission as a result of the execution and delivery of this Lease. The City is responsible for, and will hold Tenant harmless with respect to, the payment of any commission claimed by or owed to any real estate broker or other person retained by the City who is entitled to a commission as a result of the execution and delivery of this Lease. Section 22.16. All terms and words used in this Lease, regardless of the number and gender in which they are used, shall be deemed and construed to include any other number, singular or plural, and any other gender, masculine, feminine or neuter, as the context or sens e of this Lease or any paragraph or clause herein may require, the same as if such words had been fully and properly written in the required number and gender. Section 22.17. Sovereign Immunity. Nothing herein is intended to serve as a waiver of sovereign immunity by the City, nor shall anything included herein be construed as consent to be sued by third parties in any matter arising out of this Lease or any other contract or matter related to this Lease. The City is subject to section 768.28, Florida Statutes, as may be amended from time to time. Section 22.18. Radon. Radon is a naturally occurring radioactive gas that, when it 48 40 has accumulated in a building in sufficient quantities, may present health risks to persons who are exposed to it over time. Levels of radon that exceed federal and state guidelines have been found in buildings in Florida. Additional information regarding radon and radon testing may be obtained from the county public health unit for Broward County. Section 22.19. Time is of the Essence. Time is of the essence in the performance of all obligations of each party under this Lease. [SIGNATURE PAGE FOLLOWS] 49 41 IN WITNESS WHEREOF, the parties hereto have duly executed this instrument as of the day and year first above written. Witnesses: LANDLORD/CITY: CITY OF SOUTH MIAMI, a Florida municipal corporation By: Print Name: Print Name: Title: Print Name: STATE OF FLORIDA ) COUNTY OF MIAMI-DADE ) The foregoing instrument was acknowledged before me on ____________, 2023, by _________ , as _____________ of _____________, on behalf of the CITY OF SOUTH MIAMI, a Florida municipal corporation. He/She is personally known to me or produced as identification. NOTARY PUBLIC 50 42 IN WITNESS WHEREOF, the parties hereto have duly executed this instrument as of the day and year first above written. TENANT: Witnesses: AMERICAN WASTE SYSTEMS, LLC, a Florida limited liability company By: Print Name: Print Name: Title: Print Name: STATE OF FLORIDA ) COUNTY OF MIAMI-DADE ) The foregoing instrument was acknowledged before me on __________ ____, 2023, by William Rinaldi, as President of AMERICAN WASTE SYSTEMS, LLC, a Florida limited liability company, on behalf of the corporation. He is personally known to me or produced as identification. NOTARY PUBLIC 51 43 Exhibit A [Legal Description of City Land] 52 44 Exhibit B [Legal Description of Leased Premises] 53 54 ABBREVIATIONS ,,.,_: """' II. ... , tc:, t ... -~,,--- L,,1,,.,,-llf!I (' ......... 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SUbmlttal: Cad File: Drawllli Title: SU-2 Sheet No. 2 OF 2 f ' l i ' I ' 1 I i I ~ 1 i 45 Exhibit C [Prototype Design] 55 56 SCALE HOUSE / / / / / / / / / / / / / / / / / / / / / / / \ \ / / SITE !PLAN 1"'::120' / / / SITE PIAN mew 0"1?: CHCCXIT: nJ,1(1.: ..,,.., """"" "' "" SP-1 ~..O.: 57 MIAMI-DADE STATE OF FLORID A COUNTY OF MIAM I-D ADE: Before the undersigned au thority personally appeared ROSANA SALGADO, who on oath says that he or she is the LEG AL CLERK , Le gal Notices of the Miami Daily Business Review f/k/a Miami Revi ew, of Miami -Dade County , Florida ; Iha\ \he attached. COll'f o f advertisement , being a Legal Advertise ment of Not ice in the matte r of CITY OF SOUTH MIAMI -PUBLIC HEAR ING -DEC . 5, 2023 in the XXXX Court, was published in a newspaper by pri nl in the is sues of Miami Daily Business Review f/k/a Miami Review on 11 /24/2 023 Affia nt further says that th e newspaper complies with all lega l requiremen ts tor publica tion in chapter 50, Flo rida S\a\\l\es. L.~"·· ... ,,.~•hi• 24 da of (SEAL) ROSANA SALGAOO µet"SOna\\y \mow n to me ~~~•;;..;·~·tt.···· /f·•i;,Y---. CHR ISTINA LYNN RAVIX-DORLEANS ;:: ~ :~! Comm i ss ion# HH 332954 ,-t~~c ,·;,<?··' Expires November 19 2026 ,,,.,,.,, I CITY OF SOUTH MIAMI, FLORIDA CITY COMMISSION MEETING NOTICE OF PUBLIC HEARING Notice is hereby given that the City Commission will hold a public hearing on Tuesda December 5 2023 at 7:00 .m. at South Miami Cl Hall Commission Chambers, 6130 Sunset Drive, South Miami, FL 33143, tc consider the following public hearing ltem(s): AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA, APPROVING A FRANCHISE AGREEMENT WITH REDSPEED FLORIDA, LLC FOR THE INSTALLATION AND OPERATION OF SPEED DETECTION SYSTEMS FOR ENFORCEMENT OF SPEED LIMIT VIOLATIONS OCCURRING IN ELIGIBLE SCHOOL ZONES AND RELATED TRAFFIC REPORT SERV ICES AT NO COST TO THE CITY, CONTINGENT UPON FULL COMPLIANCE BY THE CITY AND REDSPEED FLORIDA, LLC WITH ALL THE REQUIREMENTS OF CHAPTER 2023-1 74 OF THE LAWS OF FLORIDA; AUTHORIZING THE CITY MANAGER TO NEGOTIATE AND EXECUTE A FRANCHISE AGREEMENT WITH REDSPEED FLORIDA LLC FOR THE SERVICES; PROVIDING FOR IMPLEMENTATION, CORRECTIONS, SEVERABIUTY AND AN EFFECTIVE DATE. AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA, AMENDING ARTICLE Ill 'ZONING REGULATIONS", SECTION 20-3.6(1) OF THE LAND DEVELOPMENT CODE, ADDRESSING PERMISSIBLE HEIGHT OF AN ACCESSORY STRUCTURE; PROVIDING FOR CORRECTIONS; SEVERABILITY; CONFLICTS; IMPLEMENTATION; AND AN EFFECTIVE DA1E. AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA, AMENDING ARTICLE Vf "ADMINISTRATION AND ENFORCEMENT", SECTIONS 20-6.1 'ADMINISTRATIVE ENTITIES" AND 20-6.2 "APPEALS AND REVIEW ' OF THE LAND DEVELOPMENT CODE, TO PROVIDE FOR CITY COMMISSION REVIEW OF APPEALS OF ADMINISTRATIVE DECISIONS IN CONNECTION WITH ENFORCEMENT OF LAND DEVELOPMENT REGULATIONS; SEVERABILITY; CONFLICTS; IMPLEMENTATION; AND AN EFFECTIVE DATE. 58 < AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA, APPROVING A FRANCHISE AGREEMENT WITH AMERICAN WASTE SYSTEMS, LLC TO LEASE A PORTION OF THE CITY-OWNED PROPERTY LOCATED OUTSIDE THE CITY'S JURISDICTION AT 4795 SW 75 AVENUE FOR THE OPERATION OF AN INDOOR WASTE PROCESSING AND LOADING FACILITY; AUTHORIZING THE CITY MANAGER TO NEGOTIATE AND EXECUTE A FRANCHISE AGREEMENT RELATING TO THE LEASE OF THE PROPERTY; PROVIDING FOR IMPLEMENTATION, CORRECTIONS, SEVERABILITY, AND AN EFFECTIVE DATE . AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA, CREATING A NEW ARTICLE VI OF CHAPTER 17 OF THE CITY'S CODE OF ORDINANCES TO REGULATE THE CONTROL OF DISCHARGE OF POLLUTANTS INTO STORMWATER COLLECTION FACILITIES PURSUANT TO TH E NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM (NPDES) PERMIT PROCESS ; PROVIDING FOR CORRECTIONS; CODIFICATION; SEVERABILITY; CONFLICTS; IMPLEMENTATION; AND AN EFFECTIVE DATE .. AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLOR IDA, AMENDING ARTICLE IV, 'WATER SHORTAGE PLAN ," OF CHAPTER 16B, 'SEWERS AND WATER,' OF THE CITY CODE OF ORDINANCES TO INCORPORATE APPLICABLE MIAMI-DADE COUNTY PERMANENT YEAR-ROUND LANDSCAPE IRRIGATION RESTRICTIONS AND PROVIDE FOR ENFORCEMENT BY Tl-IE CITY; PROVIDING FOR CORRECTIONS ; PROVIDING FOR SEVERABILITY; PROVIDING FOR CONFLICTS; PROVIDING FOR IMPLEMENTATION AND AN EFFECTIVE DATE . Commission members will participate in Chambers or by video conferencing through the Zoom platform and members of the public may join the meeting via Zoom at (https://zoom.us/V3056636338). by phone by calling +1-786- 635-1003 and entering Meeting ID: 3056636338 when prompted, or in person in the Commission Chambers , and where the ir appearance will be broadcast on the Zoom platform, and where they can participate. All interested parties are invited to attend and will be heard . For further informatio n, please contact the City Cl811<'s Office al: 305 -663-634 0. Pursuant to Section 286.0105, Fla. Stat., the City hereby advises the public that if a person decides to appeal any decision made by the Commission with resp ect to this matter, such person must ensure that a verbatim reco rd of the proceedings is made, which record includes the testimony and evidence upon wh ich the appeal Is to be based . This not ice does not constitute -~tiVffle City for the introduction or admission of otherwise inadmisslbl or Irrelevant evidence, nor does it authorize challenges or appeals not otherwise allowed by law. ADA: To request a modification to a pol icy, practice or procedure or to re- qu es t an auxiliary aide or service in order to participate In a City program, activity or event , you must on or before 4:00 p.m. 3 business days before the meeting (n ot counting the day of the meeting) deliver your request to the City Clerk by tele phone: 305-663-6340, by mail at 6130 Sunset Drive, South Miami, Florida or email at npayne@southm iamifl.gov. 11/24 Nkenga A. Payne, CMC, FCRM City Clerk 23-59/0000696206M SUNDAY NOVEMBER 26 2023 NEIGHBORS ...................................................................................................15SE PHOTOS BY PEDRO PORTAL pportal@miamiherald.com Above,fairgoers browse at vendors’booths ths during the celebration of the Miami Book Fair’s 40th Edition in downtown Miami on Nov.18. Below:Families and kids enjoy the aerial performance Bloom!By Sway,at the Children’s Alley. The annual book fair,held on the campus of Miami Dade College’s Wolfson campus,is South Florida’s signature literary event. Glimpses of Miami Book Fair 59 4A .............................................................................................MIAMI HERALD FRIDAY DECEMBER 8 2023 In October,the Biden administration announced an easing of sanctions on Venezuela’s oil sector as part of an elections deal between Maduro and the opposition.Washington said it would lift the sanctions if by Nov.30 Maduro began the release of American hostages “wrongfully de- tained”by his government, and if he lifted a ban that keeps opponents who want to run for president from serving in office.So far, Maduro has failed to com- ply with the deadline,with Maria Corina Machado,the winner of the opposition’s presidential primary,still barred from office. “He wants to be able to consolidate power in a way in which he can be assured of a ‘sound victory’when the elections are held next year,”said Ivelaw Lloyd Griffith,a Guyana-born expert on security in the region. Griffith said Maduro’s reactivation of the Venezue- lan claim to the Essequibo territory is also about trying to seize the oil discovered there in recent years. On Tuesday,Maduro announced the creation of a military zone to be carved out of the Essequibo region, which accounts for three quarters of Guyana’s land mass.An 1899 decision by international arbiters placed the area under the control of what was then called British Guiana.Venezuela’s new military zone is among seven measures that Madu- ro claims he has been au- thorized to pursue following a Sunday referendum in which voters overwhelm- ingly supported his takeover of the dense jungle region that’s about the size of Florida. In addition to the mea- sures,Maduro also ordered state-owned companies to grant licenses for the explo- ration and exploitation of oil,gas and mines in the territory. White House Press Secre- tary Karine Jean-Pierre said Wednesday that President Joe Biden is monitoring the developments. “It’s concerning.We’re watching this very,very closely,”John Kirby,coor- dinator for strategic com- munications at the National Security Council in the White House,told reporters in a press briefing on Wednesday.“The [1899] decision needs to be re- spected.We obviously don’t want to see any violence occur here,or conflict oc- cur,and we’re obviously in touch with all of our part- ners.” WASHINGTON Venezuela’s threats to annex most of Guyana might be an effort by its leader to consolidate power at home ahead of a poten- tial presidential election next year instead of a real intention to invade its neighbor,U.S.officials say. But Washington is increas- ingly concerned over how far Nicolás Maduro might be willing to go. An internal State Depart- ment assessment and the consensus of international observers and independent analysts conclude that Ma- duro is seeking leverage against the United States at the negotiating table by threatening an invasion of western Guyana,a region that is rich in oil and gas and has been disputed between the two countries for over a century. Maduro has been under U.S.sanctions for years for undermining Venezuelan democracy and is under pressure from Washington to hold free and fair elec- tions. The Biden administration is not seeing imminent signs of an invasion.But the possibility is raising anxiety in the region.United Na- tions Secretary General António Guterres on Wednesday called on Caracas to refrain from using force and to respect a recent ruling of the In- ternational Court of Justice. The U.N.court last week called on Venezuela to avoid taking any action that would change Guyana’s control and administration of the Essequibo region. “The Secretary-General strongly supports the use of solely peaceful means to settle international dis- putes,”Guterres’spokes- man,Stéphane Dujarric, said,confirming that the U.N.leader had spoken to Guyana’s president,Irfaan Ali,the previous evening over the latest escalation. AN EXCUSE FOR MARTIAL LAW? In Washington,concerns mounted that Venezuelan military action against Guyana could provide Ma- duro with an excuse to impose martial law in his troubled South American nation of 28 million,setting favorable conditions for himself in a sham presi- dential election next year, officials and experts said. Griffith,the security expert,said Maduro is “pushing the envelope on what I call the psychological warfare against Guyana that he’s engaging in,the mil- itary maneuver,the creation of a base,the seven mea- sures he announced.” ‘HUMILIATING FOR BRAZIL’ The implications,he said, could also affect Brazil, which shares a border with both countries,and other South American nations, including Colombia,which has a border with Venezue- la.Several of the nations in the region have decades- long claims about their own borders. “If you have an opening of that Pandora’s box,there are a lot of countries that will rumble about their border.They’ll presume, ‘Can we revisit,can we revisit?’”he said. “The extent to which small and powerful friends of Guyana,people who are concerned about the respect for international law,people who are interested in peace and not instability,are able to signal directly and in- directly to Maduro that he has a certain line that he cannot cross,that will influ- ence how far he’s willing to push the envelope,”Griffith said. Oliver Stuenkel,an asso- ciate professor at the School of International Relations at Fundação Getulio Vargas in São Paulo,thinks there are few political actors capable of restraining Venezuela and said the crisis has be- come “potentially a head- ache for the Biden adminis- tration”and for South American leaders. “It is quite humiliating for Brazil,”which wants to be a regional leader in helping to resolve conflicts,he added, because instead of turning to Brazil for help,Guyana’s president sought out the U.S. “Guyana has already reached out to the United States,in part,because it doesn’t believe Latin Amer- ican governments are capa- ble or willing to condemn Venezuela more forcefully or as a last resort to actually defend Guyana,”Stuenkel said. The crisis is a reflection of the limitations of Brazil’s influence in the region,he added,because “this is the kind of thing where a re- gional leader would step up and make sure this doesn’t continue.” Stunkel said he believes Maduro’s plan isn’t to in- vade “but to produce a sense of crisis,mobilize the population for as long as possible because he needs to divert attention from the economic”crisis in Vene- zuela. “He now has a supposed mandate,”he said,noting that Maduro has published a new map that includes a new state of Essequibo in Venezuela.“I continue to believe an actual conflict is unlikely,but it’s already had a lot of effects.” This would not be the first time a Latin American country has threatened or waged war to distract from its domestic problems. There are several examples, including the 1982 conflict that erupted after Argentina seized control of the Falk- land Islands and pro- claimed the end of 149 years of British sovereignty. The 10-week war,ana- lysts note,didn’t fare well for Argentina,whose effort ended in defeat against the British military. Brian Fonseca,director of the Jack D.Gordon Institute for Public Policy and an adjunct professor in in- ternational relations at Florida International Uni- versity,believes what Ma- duro is doing isn’t that different. Though the border dis- pute between Guyana and Venezuela over the Essequi- bo was supposed to have been settled in 1899,Vene- zuelans have been support- ive of asserting claims over the region. Fonseca and others who closely monitor the region’s armies say that while Vene- zuela’s military is signif- icantly larger and better- equipped than the Guya- nese force,which has about 5,000 soldiers,the ability of Venezuela’s 100,000- plus soldiers to make their way into the dense jungle of the Essequibo region is in question. Venezuela’s forces suffer from a “lack of resources, lack of maintenance,inade- quate training,”Fonseca said. Manuel Cristopher Figue- ra,a former director of Venezuela’s intelligence service under Maduro,also cast doubt on Caracas’ ability to invade is neighbor. “Many of the positions are vacant,and many of the soldiers are poorly trained or have not been trained at all.So when you examine it, the operability is practically zero,”he said. He and other Venezuelan military experts do not believe that an invasion is in the works. NO U.S.MILITARY INVOLVEMENT Were Maduro to send troops into Guyana,none of the experts interviewed by the Miami Herald envi- sioned a scenario in which the United States,which currently provides Guyana with military expertise, would deploy troops to defend Guyana or the re- gion. “I think the Americans would try to rally a coalition of nations to condemn Venezuela and put added pressure”on Maduro,Fon- seca said. Fonseca said he believes Maduro’s motive for the saber-rattling is Machado’s recent overwhelming victo- ry in an opposition primary for the presidency. The U.S.pressure for free and fair presidential elec- tions in Venezuela next year and the ability of the oppo- sition to put forth its own candidate,Fonseca added, have “forced Maduro”to seek other leverage. Maduro’s threat to invade Guyana,a staunch U.S.ally, he added,“makes for far more complex”negotia- tions. Miami Herald journalist Ana Claudia Chacin con- tributed to this report. Jacqueline Charles: 305-376-2616, @jacquiecharles Ana Claudia Chacin: 305-376-3264, @AnaChacinc As Venezuela threatens to invade oil-rich Guyana, U.S.frets about how far Maduro will go BY MICHAEL WILNER, ANTONIO MARIA DELGADO AND JACQUELINE CHARLES mwilner@mcclatchydc.com adelgado@elnuevoherald.com jcharles@miamiherald.com ARIANA CUBILLOS AP |Dec.4,2023 An internal State Department assessment and international observers and independent analysts conclude that Nicolás Maduro is seeking negotiating leverage against the U.S. 60