LEASE
For a portion of Lake Eola Park
Orlando, Florida
between
City of Orlando, Landlord
and
NFL Properties LLC
a Delaware Limited Liability Company, Tenant
LEASE
THIS LEASE ("Lease") is made and entered into to become effective as of the day
of ____________________, 2008, by and between the City of Orlando, Florida, a municipal
corporation organized and existing under the laws of the State of Florida ("Landlord"), and NFL
Properties LLC, a Delaware Limited Liability Company ("Tenant").
RECITALS
A. Tenant will host Super Bowl XLIII in Tampa, Florida on February 1, 2009. One of the
events leading up to the game is a private function on January 31, 2009 for Tenant’s sponsors,
owners and players. Tenant has selected a portion of Lake Eola Park for this unique private
function (hereinafter “Function.”). On January 31, 2009, the Function will begin at
approximately 6:30 p.m. and conclude at 12:30 a.m.
B. In addition to the actual Function date, Tenant will need access to a portion of Lake Eola
Park to prepare for, do temporary construction (the "Construction Period"), and to move out after
the Function.
C. Contemporaneously with this lease, Tenant has applied for and is seeking approval of a
permit under Chapter 18A of the City Code and the terms and conditions of that approved permit
will become Exhibit “B” to this Lease and incorporated by reference herein. Landlord represents
and warrants that those permit(s) listed on Exhibit B (the "Permits") are the only permits,
consents or other similar regulatory approvals required from the City of Orlando (including its
agencies, affiliated entities or designees) to stage the Function and use the Premises (as defined
below) as set forth in this Lease. Landlord represents and warrants that the application and
issuance fee for the Permits shall be no more than Five Hundred Dollars ($500). All other
related costs are as set forth below:
Police Department Costs to cover the motor transport detail and limited security
services during the Function : Ten Thousand Six Hundred Seventeen Dollars:
($10,617) which shall be payable by Tenant upon being invoiced by Landlord
pursuant to Section 4.2 below.
Fire Department Costs to cover fire department inspection services during the
Function date and Construction Period: One Thousand Five Hundred Dollars
($1,500) which shall be payable by Tenant upon being invoiced by Landlord
pursuant to Section 4.2 below
Solid Waste Disposal Costs for Function date only: Five Hundred Eight Dollars
($500) which shall be payable by Tenant upon being invoiced by Landlord.
Park Labor Costs (to be paid with Base Rent—: Three Thousand Four Hundred
Sixty-One Dollars and Forty-Five Cents ($3461.45) which shall be payable by
Tenant upon being invoiced by Landlord pursuant to Section 4.2 below.
For purposes of clarification, the parties acknowledge and agree that all permit fees, costs and
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expenses and any related fees, costs and expenses, excluding the Base Rent, costs associated with
the Additional Authorized Services (as defined below) and any deposits specifically referenced
herein, shall not exceed $14,000.
In the event of any conflict or inconsistency between the terms and conditions of the Permits on
the one hand and this Lease on the other hand, the terms and conditions of this Lease shall
govern. Provided however, if Tenant’s event coordinator, Tracy Perlman, requests additional
services beyond what has been estimated above and in the 18A permit, Tenant shall pay Landlord
for the additional services (“Additional Authorized Services”) at posted City rates. Upon written
notice to Tenant, Landlord may deduct any such authorized additional services from the Security
Deposit as provided in Section 10. If the Security Deposit is insufficient to cover the Additional
Authorized Services costs, the Landlord will bill Tenant for the additional charges by providing a
detailed invoice of such charges to Tenant. In consideration of the mutual covenants,
agreements and undertakings contained herein, and for other valuable consideration, the receipt
and sufficiency of which are hereby acknowledged by each party to the other, the parties enter
into this Lease as follows:
1. Grant of Leasehold Interest. In consideration of the rent to be paid and the covenants
to be performed by the parties herein provided, Landlord hereby shall lease to Tenant and Tenant
shall lease from Landlord the "Premises" located within Lake Eola Park, as more particularly set
forth in the diagram attached as Exhibit “A” hereto and by reference made a part hereof.
2. Term of Lease and Early Termination for Convenience. The term of this Lease will
begin with a Commencement Date of January 24, 2009 and will end on the Expiration Date of
February 2, 2009.
3. Premises Use Provisions.
3.1 Intended Use. Tenant shall occupy the Premises only for the Intended Use,
which shall be for the presentation of a special event related to the Super Bowl and related
activities, including, but not limited to, temporary construction on the Premises, including on
Lake Eola. Nothing contained in this Lease shall be construed as giving Tenant an express or
implied exclusive use of the entire Premises, except for on January 31, 2009. Notwithstanding
the foregoing, Tenant may take steps to secure its property and personnel and the property and
personnel of its contractors that is placed on the Premises in preparation for the Function.
3.2 General Use Requirements and Restrictions. Tenant shall observe the
following requirements and restrictions while making use of the Premises:
A. Procure and maintain any permits and licenses required for the transaction of
its business on the Premises, including those listed in Exhibit B. Pursuant to
Recital C above, Landlord shall assist the Tenant in facilitating such permit
applications and all fees associated with such permits shall be paid in addition to
the Base Rent pursuant to Recital C.
B. Not commit, suffer any waste, or make any use of the Premises, which would
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constitute a nuisance or violate any municipal, county, state or federal statute,
ordinance, rule or regulation.
C. Not use the Premises for any purpose that will invalidate any policy of
insurance required to be maintained by Tenant under this Lease.
D. Comply with all rules and regulations (“Rules and Regulations”) established
by Landlord applicable to the Premises and provided in writing to Tenant. Notice
of rules and regulations, and amendments and supplements thereto, if any, shall be
given to Tenant, and Tenant agrees thereupon to comply with and observe all such
rules and regulations, and the amendments and supplements thereto, provided that
the same shall apply uniformly to all short-term tenants of the Premises.
E. Be solely responsible for securing all federal, state, county or municipal
approvals of an environmental or other nature, required for any construction or
alteration of the Premises and any leasehold improvements contained therein, and
for any of Tenant's operations thereon.
4. Rent.
4.1 Base Rent. Tenant shall pay to Landlord in lawful United States currency the
Base Rent. All Base Rent, which shall include, at minimum, costs associated with labor for
clean-up after the Function, shall be due and payable to the City of Orlando, c/o Recreation
Division Manager Rodney Williams, 595 Primrose Drive, Orlando, FL 32803, on or before
January 5, 2009; provided, that an invoice detailing such costs is first provided to Tenant. The
Base Rent is calculated as follows:
Park Rental $5670.00
Tax on Rent (@6.5%) $ 368.55
Park Labor Costs $3461.45
Total BASE RENT $9500.00
The Base Rent shall include payment for use of the entire Premises described in Exhibit A for the
Lease term. If Tenant, due to its own actions, holds over beyond the February 2, 2009 lease
termination date, Tenant shall pay City Three Thousand Dollars ($3000.00) per day for each day
that any of its event supplies and equipment remain on the Premises; provided, that an invoice
detailing such costs is first provided to Tenant.
4.2 Payment of Costs. Tenant agrees to pay costs associated with the services
provided by Landlord in connection, Police Department Costs (i.e., $10,617), Fire Department
Costs (i.e., $1,500) and Solid Waste Disposal Costs (i.e., $500)as outlined in Recital C above
which is incorporated by reference herein. Provided, that an invoice detailing such costs is first
provided to Tenant, Tenant shall pay Landlord Seventeen Thousand Dollars ($12,617) in advance
for those services on or before January 5, 2009, to City of Orlando, c/o Freda Vick, Special Event
Coordinator, Orlando Police Department, 100 S. Hughey Avenue, Orlando, FL 32802.
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4.3 Late Payments. The Base Rent payment shall become due and payable without
notice or demand on the due date, but Tenant shall not be deemed to be in default under this
Lease unless a payment remains unpaid for more than five (5) business days after its due date. If
any payment due Landlord under this Lease is not be paid within five (5) business days of the
date payment is due, Tenant shall pay, in addition to the payment then due, an administrative
charge equal to one percent (1%) of the past due payment. Any late charges becoming due under
this paragraph shall become due February 1, 2009; provided, that an invoice detailing such costs
is first provided to Tenant.
4.4 General. Base Rent shall be paid to Landlord without demand, setoff, or
deduction whatsoever, except as specifically provided in this Lease, at Landlord's Notice Address,
or at such other place as Landlord shall designate in writing to Tenant. Tenant's obligations to pay
Rent are covenants independent of Landlord's obligations under this Lease.
5. Assignment Or Subletting. Notwithstanding any other provisions of this Lease, Tenant
covenants and agrees that Tenant will not assign this Lease or sublet the Premises without the
prior written consent of Landlord, which shall not be unreasonably withheld or delayed.
Landlord shall have the right to require any reasonable information regarding any possible
assignee or sublessee and shall be under no obligation to consent to any proposed assignment or
subletting, and any assignment or subletting not specifically authorized herein, without prior
written consent shall be void ab initio and a material breach of this Lease. The foregoing
notwithstanding Landlord shall not unreasonably withhold its consent to an acceptable assignee,
which is financially capable and agrees to operate the same Event. It shall be a condition of the
validity of any such assignment or subletting that the assignee or sublessee agrees directly with
Landlord, by written instrument in form satisfactory to Landlord, to be bound by all of the
obligations of Tenant hereunder, including, without limitation, the obligation to pay rent and
other amounts provided for under this Lease and the covenant against further assignment and
subletting, but such assignment or subletting shall not relieve Tenant of any of the obligations of
Tenant hereunder, and Tenant shall remain fully liable therefore. Further, any such sublessee
shall also provide the same insurance policy coverage in the same manner as Tenant is required
under Section Six (6) hereof. Acceptance of rent from any purported assignee or sublessee shall
not be construed either as a waiver of the requirement of Landlord's consent or a grant of consent.
6. Insurance and Risk Allocation.
6.1 Tenant Coverage Limits. Tenant, at its own expense, shall keep in force and at
all times maintain during the term of this Lease the following policies of insurance:
A. Commercial Liability Insurance:
Commercial Liability, issued by responsible insurance companies, with
appropriate endorsements for pyrotechnic exposures, and in a form acceptable to
the Landlord, with the Landlord listed as an additional insured, with limits of not
less than the following amounts:
Five (5) Million Dollars ($5,000,000.00) per occurrence, ten (10) Million Dollars
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($10,000,000.00) general aggregate; and
One (1) Million Dollars ($1,000,000.00) Personal and Advertising Injury, Sexual
Abuse and Molestation, and Defamation.
B. Workers’ Compensation & Employers Liability Insurance:
Full and complete Workers’ Compensation Coverage as required by State of
Florida law, and Employers’ Liability in an amount $500,000 each accident,
$50,000 each employee.
C. Automobile Liability Insurance:
Automobile liability insurance coverage in the minimum amount of One Million
Dollars ($1,000,000) per occurrence, combined single limit for BI/PD, including
hired/non-owned vehicles regardless of number of passengers transported.
D. Employment Practices and Directors & Officers Insurance
Employment Practices and Directors & Officers insurance coverage in the
minimum amount of Five Hundred Thousand Dollars ($500,000).
6.2 Landlord Coverage Limits. Landlord agrees to self-insure Lake Eola Park to the
extent allowed by Landlord's Risk Management Program.
6.3 Waiver of Subrogation. Landlord and Tenant each expressly, knowingly, and
voluntarily waive and release any claims that they may have against the other or the other's
employees, agents, or contractors as a result of the acts or omissions of the other party or the
other party's employees, agents, or contractors (specifically including the negligence of either
party or its employees, agents, or contractors and the intentional misconduct of the employees,
agents, or contractors of either party), to the extent any such claims are covered (without regard
to losses not compensated as a result of such things as coinsurance adjustments or deductibles)
by the workers' compensation and property insurance described in this Lease, or other property
insurance that either party may carry at the time of an occurrence. Landlord and Tenant shall
each, on or before the earlier of the Commencement Date or the date on which Tenant first enters
the Premises for any purpose, obtain and keep in full force and effect at all times thereafter a
waiver of subrogation from its insurer concerning the workers' compensation and property
insurance maintained by it for Lake Eola Park and the property located adjacent to it that will be
used for Event-related purposes. This section 6.3 shall not apply to claims for damages of less
than One Thousand Dollars ($1,000) or to claims for personal injury or wrongful death.
6.4 Tenant's Risk. Tenant agrees to use and occupy the Premises at Tenant's own
risk, and Landlord shall have no responsibility or liability for any loss or damage to Tenant’s
improvements or personal property, or for any loss or damage resulting to Tenant or those
claiming by, through, or under Tenant unless such loss or damage is caused by the negligence or
willful misconduct of Landlord or any of its officers, agents, or employees.
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6.5 Injury Caused by Third Parties. Tenant agrees that Landlord shall not be
responsible or liable to Tenant, or to those claiming by, through or under Tenant, for any loss or
damage that may be occasioned by or through the actions or omissions of persons using,
occupying, making improvements to or visiting the Premises during the Function.
7. Tenant's Indemnity. Tenant agrees to indemnify Landlord and save Landlord harmless
from and against any and all third-party documented claims, actions, damages, liabilities and
expenses in connection with loss of life, personal injury and/or property damage and/or
destruction (collectively, "Claims") arising from any occurrence in, upon or at the Premises
during the term of the Lease or the occupancy or use by Tenant of the Premises as noted herein
during the term of the Lease or any part thereof, or any act, omission or negligence of Tenant or
Tenant's agents, employees, contractors, sublessees, concessionaires, licensees or invitees arising
out of use of the Premises as noted herein during the term of the Lease, except to the extent such
Claims arise out of any act of gross negligence or willful misconduct of Landlord or any of its
officers, agents, or employees. In addition, it is expressly understood and agreed that the
Tenant's obligations under this indemnification are limited to, and will be entirely satisfied and
discharged through, amounts which Tenant or Landlord is able to recover with respect to the
indemnified claims under the insurance policies listed in Section 6.1 above, provided that Tenant
has obtained the insurance listed in Section 6.1 above and Landlord has been named as additional
insureds thereon. This indemnity shall also extend to all areas of the Premises, for all matters
and transactions arising out of use thereof by anyone utilizing the Premises as noted herein in
conjunction with use or coming upon the Landlord’s property for the purposes of accessing the
Premises during the term of the Lease. This indemnity and hold harmless agreement shall be
effective for the period of time from and after the Commencement Date until the end of the term
of this Lease and thereafter as long as Tenant is in occupancy of any part of the Premises
pursuant to this Lease. The indemnity covering that time period shall remain in effect thereafter
until no claim could legally be made. Additionally, this indemnity and hold harmless agreement
shall include indemnity against all third-party documented costs, expenses and liabilities,
including reasonable outside attorney's fees and reasonable outside attorney's fees on appeal,
incurred by Landlord in connection with any such claim or action or any trial, appellate or
bankruptcy court proceeding relative thereto except to the extent such claims or actions arise out
of any act of gross negligence or willful misconduct of Landlord or any of its officers, agents, or
employees. If any such action or proceeding is instituted against Landlord, Tenant, upon written
notice from Landlord, shall defend such action or proceeding by counsel approved in writing by
Landlord, such approval not to be unreasonably withheld.
8. Public Access.
8.1 Tenant's Rights. As long as Tenant is entitled to possession of the Premises,
except for the 24 hour period of the Function day during which the Tenant’s rights shall be
exclusive, Tenant shall have a nonexclusive right, in common with Landlord, and with members
of the public to have access to the Premises. Nothing in this paragraph is intended to restrict or
impede Tenant from preparing for its Event Day on the Premises or from protecting its personal
property or the personal property of its contractors.
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8.2 Rules and Regulations. "Rules and Regulations" shall mean the rules and
regulations for the Lake Eola Park promulgated by Landlord from time to time. Tenant shall
conform to the Rules and Regulations and the laws of the City of Orlando and the State of
Florida.
8.3 Efforts to Limit Ambush Marketing. In recognition of the Tenant's concern
that persons in competition with Function sponsors will attempt to engage in the practice known
as ambush marketing, Landlord agrees that it shall not authorize any vendor to sell any food,
drink, goods, services or merchandise within the Premises. Further, Landlord agrees that it shall
not engage in, and will use reasonable efforts (including working with relevant city agencies to
create enforcement plans) to assist Tenant in preventing third parties from engaging in, any
promotional and/or ambush marketing activities during the Function which may detract from, or
interfere with, the promotional activities of the Tenant in connection with the Function.
9. Tenant Improvements.
9.1 Prior Submission of Tenant's Plans. Prior to making any changes to the
existing improvements to the Premises, Tenant shall submit for Landlord's written approval,
which approval shall not be unreasonably withheld or delayed, at least three (3) sets of plans and
specifications in adequate detail to show Tenant's contemplated improvements and fixtures to the
Premises. Approval of the plans and specifications by Landlord shall not relieve or affect
Tenant's responsibility for compliance of such plans and specifications with all relevant laws,
ordinances, codes and regulations. Landlord's approval of Tenant's plans, specifications, and
fixtures shall be evidenced by Landlord's causing one (1) set of such plans and specifications to
be initialed on its behalf and returned to Tenant. Tenant shall bring the Premises back to their
prior condition at the end of the rental term, or in the alternative, shall pay a Construction
Security Deposit of Fifteen thousand dollars ($15,000) which Landlord will use to replace the
sod in the Premises after the Function and to make any other repairs necessary to restore the
Premises to its prior condition.
9.2 Construction Responsibility. The following shall apply with regard to any
construction activities to be conducted on the Premises;
A) Landlord may, from time to time, inspect any construction to the Premises
undertaken by Tenant.
B) Prior to any tenant construction, Landlord shall have the right to require Tenant to
furnish a letter of credit, a performance bond, a payment bond and/or other security acceptable at
Landlord's sole reasonable discretion, in an amount equal to the estimated cost of the work to be
performed by Tenant.
C) Tenant shall be responsible for all necessary permits and fees for any Tenant
construction, renovation or other construction-type activity to the Premises.
D) Tenant shall obtain and pay for all permits, licenses, fees, and meters related to
Tenant construction and shall comply with all codes, ordinances and regulations. Prior to any
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Tenant construction, renovation or construction-type activity on the Premises, Tenant shall
require his contractors and/or subcontractors to furnish Landlord evidence of insurance coverage,
as required by statute relative to the class of contractor's license held. The insurance shall
include workmen's compensation coverage required in the State of Florida. Tenant shall limit
construction operations to the Premises only, and shall remove all trash, rubbish and surplus
material from the project on a regular basis or as reasonably instructed by Landlord. Should
excessive trash accumulate, Landlord will cause trash to be removed and charged to Tenant at 1.5
times Landlord's cost.
E) Landlord shall have no responsibility or liability whatsoever for any loss or damage
(collectively, "Damages") to any fixtures or equipment installed or left in the Premises prior to
the Commencement Date except to the extent such Damages arise out of any act of gross
negligence or willful misconduct of Landlord or any of their respective directors, officers, agents,
or employees, and Tenant's occupancy prior to the Commencement Date shall be governed by
this Lease.
10. Security Deposit. Tenant, prior to or contemporaneously with the execution of this
Lease, has deposited with Landlord the sum of Ten Thousand and No/100 Dollars ($10,000.00),
receipt of which is hereby acknowledged by Landlord, as the Security Deposit. The Security
Deposit shall be held by Landlord as security for Tenant's full and faithful performance of this
Lease including the payment of Rent, payment for additional authorized services supplied by
Landlord, and repair of any damage to the Premises. Tenant grants Landlord a security interest in
the Security Deposit. The Security Deposit may not be commingled with other funds of
Landlord and Landlord shall have no liability for the accrual or payment of any interest on the
Security Deposit. Landlord may apply the Security Deposit to the extent required to cure any
default by Tenant which remains uncured by Tenant after Tenant has received notice of such
default and has failed to cure such default within ten (10) days. The Security Deposit shall not be
deemed an advance payment of Rent or a measure of damages for any default by Tenant, nor
shall it be a defense to any action that Landlord may bring against Tenant. If Tenant fully and
faithfully complies with all of the terms, covenants, and conditions of this Lease, any part of the
Security Deposit not used or retained by Landlord under the terms of this Lease shall be returned
to Tenant within ten (10) business days after the expiration of the Lease Term and after Tenant's
delivery of possession of the Premises to Landlord. However, if at the expiration of the Lease
Term there are any amounts that may be due from Tenant that have not yet been finally
determined (for example, Rent for Operating Costs for the year in which the Lease Term expires)
then Landlord may estimate the amounts which will be owed and deduct them from the Security
Deposit. When the actual amounts are finally determined, an adjustment shall be made between
Landlord and Tenant with payment to or repayment by Landlord, as the case may require, to the
end that Landlord shall receive the entire amount actually owed by Tenant and Tenant shall
receive reimbursement for any overpayments.
11. Personal Property/Fixtures/Removal. Tenant may place, install, operate and maintain
on the Premises personal property, movable machinery and equipment, trade fixtures and the like
which are ordinarily necessary and desirable in the operation of an Event such as Tenant's (herein
referred to as “Tenant’s Property”).
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Upon removal of any property accompanied by attendant damage, Tenant shall either repair
or authorize Landlord to repair, to Landlord's satisfaction, any damage within thirty (30) days.
Upon satisfactory completion of the repairs the unused portion of the additional security deposit,
if any, shall be returned to Tenant. If the cost of repair exceeds all security deposits held by
Landlord, Tenant shall promptly pay the excess to Landlord.
12. Alterations & Repairs. Tenant shall not make any alterations, additions or
improvements to the Premises or the personal property of the Landlord within the Premises
without the prior written consent of Landlord, such consent not to be unreasonably withheld or
delayed.
13. Utilities. Tenant shall pay all charges for gas, electricity, water, telephone service,
sewage disposal, and other services used on or about or supplied to the Premises, and Tenant
shall hold Landlord harmless from and indemnify Landlord against any and all liability for such
charges. If any such charges are not paid when due, Landlord may pay the same, and any amount
so paid by Landlord shall thereupon become due to Landlord from Tenant as additional rent. If
Landlord elects to furnish one or more utility or other service to Tenant, Tenant shall purchase
the use of such services as are tendered by Landlord and shall pay on demand as additional rent
the rates established by Landlord on a pro-rata basis which shall not exceed the rates which
would be charged for the same services if furnished directly by the local public utility or other
service companies. Landlord may at any time discontinue furnishing any such service without
obligation to Tenant other than to connect the Premises to the public utility, if any, furnishing
such service. Landlord shall not be liable in damages or otherwise for any damage to Tenant or
to Tenant's customers, property or revenues resulting from failure or interruption of any utility or
other service being furnished to the Premises by Landlord, unless such failure or interruption of
utility services is the result of negligence or misconduct on the part of Landlord or Landlord's
agents and Landlord does not restore such service within a reasonable time after written notice
from Tenant of the existence of such problems with utility or other service. In no event,
however, shall such failure or interruption entitle Tenant to cancel this Lease.
14. Local Preference . Tenant will use commercially reasonable efforts to secure local
vendors based in Orange, Osceola and Seminole Counties whenever practical for the Function to
be held on the Premises and for any related support services.
15. Landlord's Access to Premises.
16.1 Landlord's Right of Access. Landlord and persons authorized by Landlord may
enter the Premises at any time without notice to Tenant in the event of an emergency (e.g., a
force majeure event). Landlord and persons authorized by Landlord shall also have the right to
enter the Premises at all reasonable times and on reasonable advance oral or written notice for the
purposes of making repairs, replacements, and improvements that may be Landlord's obligation
under this Lease or which Landlord deems reasonably necessary for the safety, protection, or
preservation of the Premises or when entry will facilitate necessary repairs to the Premises which
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require immediate attention.
16.2 Event Day Access. Tenant shall have exclusive use of the Premises on Event Day,
except that Landlord personnel will work in coordination with Tenant’s contractors to 1) control
access to the site; and 2) to ensure that life safety codes are being met. Tenant also agrees to
grant Landlord twenty (20) event entrance passes for use by its officials. Such passes may not be
sold or used in a promotional manner (e.g., consumer ticket giveaway).
16. Environmental Laws.
16.1 Compliance with Laws. Tenant's use of, and activities on, the Premises shall be
conducted in compliance with all Environmental Laws. Tenant shall not use or store on the
Premises "hazardous" or "toxic" substances, as those terms are defined by any Environmental
Laws, except in quantities and to the extent otherwise authorized by law, but only to the extent
necessary for engaging in the Function plans authorized under this Lease. Tenant shall maintain
the Premises in a "clean" condition during the Lease Term. As used in this article, the term
"clean" shall mean that the Premises are in complete compliance with all Environmental Laws
and this Lease. Landlord shall comply with all applicable laws including, without limitation,
Environmental Laws. Landlord shall not use or store on the Premises "hazardous" or "toxic"
substances, as those terms are defined by any Environmental Laws, except in quantities and to
the extent otherwise authorized by law, but only to the extent necessary for engaging in the
Function plans authorized under this Lease. Landlord shall maintain the Premises in a "clean"
condition during the Lease Term. As used in this article, the term "clean" shall mean that the
Premises are in complete compliance with all Environmental Laws and this Lease.
16.2 Tenant's Breach. If Tenant fails to fulfill any of its obligations contained in this
Section Seventeen (17) or to notify Landlord of the release of any hazardous or toxic substances
from the Premises, then, in addition to all other rights and remedies available to Landlord,
Landlord shall have the right to initiate a clean up of the Premises, in which case Landlord shall
be reimbursed by Tenant for, and indemnified by Tenant from, any and all costs, expenses,
losses, and liabilities incurred in connection with the clean up (including all reasonable attorneys'
fees). In the alternative, Landlord may require Tenant to clean up the Premises and to fully
indemnify and hold Landlord harmless from any and all losses, liabilities, expenses (including
but not limited to reasonable attorneys' fees), and costs incurred by Landlord in connection with
Tenant's clean-up action. Notwithstanding anything in this Section Sixteen (16), Tenant agrees
to pay, and shall indemnify defend, and hold Landlord harmless from and against, any and all
losses, claims, liabilities, costs, and expenses (including reasonable attorneys' fees) incurred by
Landlord as a result of any breach of Tenant’s obligations under this Section, and as a result of
any contamination of the Premises, because of Tenant's use of hazardous or toxic substances on
the Premises.
16.3 Survival. This Section Sixteen (16) shall survive the expiration or any
termination of this Lease.
17. Security Services Furnished.
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While Landlord may cooperate with Tenant in providing some security services for the
Premises during the day of the Function when public access to the Premises is restricted, it shall
not be responsible in any way for the safety or welfare of Tenant or anyone coming on or exiting
the Premises. Tenant shall furnish all security services it deems necessary to protect the welfare
of those coming on the Premises. NOTWITHSTANDING THE FOREGOING, NEITHER
LANDLORD NOR TENANT SHALL BE RESPONSIBLE FOR EITHER THE SECURITY OR
SAFETY OF ANY PERSONS UTILIZING THE PREMISES OR COMMON AREAS,
EXCEPT TO THE EXTENT OTHERWISE REQUIRED BY LAW.
18. Removal and Restoration Obligations
On the expiration of the Lease Term, Tenant, at its expense, shall remove from the
Premises all of Tenant's Property and all alterations that Tenant made. Tenant shall also repair
any damage to the Premises caused by the removal. Any items of Tenant's Property that shall
remain in the Premises after the expiration or early termination of the Lease Term, may, at the
option of Landlord, be deemed to have been abandoned, and in that case, those items may be
retained by Landlord as its property to be disposed of by Landlord, without accountability to
Tenant or any other party, in the manner Landlord shall determine, at Tenant's expense.
19. Default.
19.1 Tenant Events of Default. The occurrence by Tenant of any of the following shall
constitute a material event of default under this Lease:
A. Failure to pay Base Rent within ten (10) business days of its due date, without
notice from Landlord;
B. Failure to make any other payment required of Tenant hereunder, within ten
(10) business days after written notice that it is due;
C. Failure to perform any other covenant contained herein on its part to be
observed, for three (3) business days after receipt of written notice from Landlord to
Tenant of such breach;
19.2 Landlord Default Remedies. In the event Tenant fails to cure any default
within any applicable time period, without further notice, Landlord may elect to take any of the
following actions:
A. Terminate this Lease and enter into the Premises, or any part thereof, either
with or without process of law, and expel Tenant, or any person occupying the same
in or upon the Premises, using such force as may be necessary to do so, and
repossess and enjoy the Premises;
B. Enter into possession of the Premises as agent of Tenant and relet the
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Premises without any obligation to do so, applying any rent received from new
tenants on the balance due under this Lease, and in such event, Tenant shall be
responsible for no more than the balance then due, should a balance exist, plus all
Landlord’s fees, costs and expenses in taking such actions;
C. Exercise in addition to the foregoing any and all other rights and remedies
according to the laws of the State of Florida
All of Landlord's rights and remedies after a default by Tenant, whether expressly stated above or
whether available at law or in equity, shall be deemed separate and cumulative, and the exercise
of any one right or the pursuit of any one remedy shall not preclude Landlord from exercising any
other right or pursuing any other remedy. Landlord shall not be required to give Tenant any
notice of a default, other than the notices described herein, prior to Landlord's exercise of its
remedies under this Lease.
19.3 Landlord Events of Default. Landlord shall be in default under this Lease if
Landlord fails to perform any of its obligations in a manner which materially affects Tenant's use
and occupancy of the Premises, and the failure continues for more than three (3) business days
after notice from Tenant specifying the default, or, if the default is of a nature that it cannot be
completely cured within the period solely as a result of nonfinancial circumstances outside of
Landlord's control, Landlord shall have the right to an additional grace period as provided in this
Section Twenty (20).
19.4 Jurisdiction and Venue. Any legal action or proceeding arising out of or in any
way connected with this Lease shall be instituted in a court (federal or state) located in the
County where the Premises are located, or having jurisdiction over the Premises, which shall be
the exclusive jurisdiction and venue for litigation concerning this Lease. Landlord and Tenant
shall be subject to the jurisdiction of those courts in any legal action or proceeding. The
execution of this Lease and performance of its obligations by Tenant, for purposes of personal or
long-arm jurisdiction, constitutes doing business in the State of Florida pursuant to Section
48.193, Florida Statutes. In addition, Landlord and Tenant waive any objection either may now
or hereafter have to the laying of venue of any action or proceeding in those courts, and further
waive the right to plead or claim that any action or proceeding brought in any of those courts, has
been brought in an inconvenient forum.
19.5 Landlord's Right to Perform. If Tenant defaults and does not cure within the
applicable cure period, Landlord may, but shall have no obligation to, perform the obligations of
Tenant, and if Landlord, in doing so, makes any expenditures or incurs any obligation for the
payment of money, including reasonable attorneys' fees, the sums so paid or obligations incurred
shall be paid by Tenant to Landlord within ten (10) days of rendition of a bill or statement to
Tenant.
19.6 Limitation of Remedies; Exculpation. Excluding any third-party claims or any
breach of Section 20.21 or 20.22, each Party waives all remedies for defaults by the other and all
claims under any indemnities granted by either to the other under this Lease based on loss of
business or profits or for other consequential damages or for punitive or special damages of any
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kind, except as specifically provided in this Lease. No act or omission of Landlord or its agents
shall constitute an actual or constructive eviction of Tenant unless Landlord shall have first
received notice of Tenant's claim and shall have failed to cure it after having been afforded a
reasonable time to do so, which in no event shall be less than fifteen (15) days.
20. Miscellaneous Provisions.
20.1 Construction Liens. The estate or interest of Landlord in and to the Premises and
Lake Eola Parke shall not be subject to mechanics' liens of persons or entities not in privity with
Landlord. Tenant further agrees immediately to discharge (either by payment or by filing the
necessary bond or otherwise) any mechanics' liens against the Premises, or Landlord's interest
therein purporting to be for labor, services, or materials furnished to Tenant in, on or about the
Premises, and a duly executed instrument by which such mechanic's lien is satisfied, released
from the Premises or the Parking Garage or transferred to bond, shall be filed or recorded within
ten (10) days after such mechanic's lien is filed or recorded.
20.2 Signs. Tenant shall not, without Landlord's prior written consent, such consent not
to be unreasonably withheld or delayed: (a) make any changes to or paint any of Landlord’s
fixtures on the Premises; (b) dig or install anything underground; or (c) erect or install any signs,
placards, decorations or advertising media of any type which can be viewed from the exterior of
the Premises except on Event day. Political campaign signs are prohibited on the Premises
pursuant to Section 64.252, Orlando City Code, because the real property containing the
Premises is public property owned by Landlord.
20.3 Severability. If any part of this Lease shall, to any extent, be invalid or
unenforceable, the remainder of this Lease, shall not be affected thereby, and each term and
provision of this Lease shall be valid and enforced to the fullest extent permitted by law.
20.4 Notices. Any notice required or permitted to be given under this Lease shall be in
writing and delivered by hand, by nationally recognized overnight air courier service (such as
FedEx) or by United States Postal Service, registered or certified mail, return receipt requested,
in each case addressed to the respective Party at the Party's notice address. A notice shall be
deemed to have been delivered and received on the earlier of the date actually received (by
whatever means sent, including means not authorized by this article) or on the date of transmittal
by telecopier, or the first (1st) business day after having been delivered to a nationally recognized
overnight air courier service for "next business day" delivery, or on the third (3rd) business day
after having been deposited with the United States Postal Service registered or certified mail,
return receipt requested. If any communication is returned to the addressor because it is refused,
unclaimed, or the addressee has moved, or is otherwise not delivered or deliverable through no
fault of the addressor, effective notice shall still be deemed to have been given. Addresses for
delivery of notice shall be as follows:
A) To Landlord: Director of Communications
City of Orlando
400 S. Orange Avenue
Orlando, Florida 32801
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Phone #
with a copy to: Families Parks & Recreation Director
____ Primrose
Orlando, Florida 32803
Phone #
B) To Tenant: National Football League
280 Park Avenue
New York, New York 10017
ATTN: TRACY PERLMAN
Phone: (212) 450-2157
Fax: (212) 847-1794
with a copy to: Allison M. Villafañe, Associate Counsel
National Football League
280 Park Avenue
New York, New York 10017
20.5 Section Titles, Interpretation. The titles to the sections contained in this Lease are
for convenience and reference only. Any gender used herein shall be deemed to refer to all
genders. Use of the singular herein shall be deemed to include the plural, and the plural shall be
deemed to include the singular.
20.6 Waiver. Failure on the part of Landlord or Tenant to complain on any action or
non-action on the part of the other, shall never be a waiver of any respective rights hereunder;
however, the foregoing shall not apply to provisions of this Lease, where a right of Tenant is
dependent upon notice to be given within a specified period. Further, no waiver at any time of
any of the provisions hereof by Landlord or Tenant shall be construed as a waiver of any of the
other provisions hereof, and a waiver at any time of the provisions hereof shall not be construed
as a waiver at any subsequent time of the same provisions. No payment by Tenant, or acceptance
by Landlord, of a lesser amount than shall be due from Tenant to Landlord shall be treated
otherwise than as a payment on account. The acceptance by Landlord of a check for a lesser
amount with an endorsement or statement thereon, or upon any letter accompanying such check,
that such lesser amount is payment in full, shall be given no effect, and Landlord may accept
such check without prejudice to any other rights or remedies which Landlord may have against
Tenant.
20.7 INTENTIONALLY DELETED
20.8 Landlord's Lien. In addition to any rights that may be given Landlord by Florida
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law, Tenant hereby grants to Landlord a security interest in and a lien upon any and all furniture,
fixtures, equipment, goods and other personal property of any kind in which Tenant has an
interest that is now or hereafter located on the Premises during the lease Term, as security for the
payment of all rents and other sums to be paid by Tenant to Landlord hereunder, and for the
purpose of securing the performance of Tenant's duties and obligations in accordance with the
terms of this Lease.
20.9 Entire Agreement. This Lease contains the entire agreement of the parties with
respect to the Premises, and no representations, warranties, inducements, promises or
agreements, oral or otherwise, between the parties relative to the Premises not embodied in this
Lease shall have any force or effect. This Lease shall not be modified or supplemented except in
writing subscribed by all parties.
20.15 Time of Essence. Time is of the essence of this Lease and every provision hereof.
20.16 Limitations on Government Liability Nothing in this Lease is to be considered
as a waiver of immunity or limits of liability of Landlord beyond any statutorily limited waiver of
immunity or limits of liability which may have been adopted by the Florida Legislature in
Section 768.28, Florida Statutes, or other State statute, and nothing in this Lease inures to the
benefit of any third party for the purpose of allowing any claim which would otherwise be barred
under the Doctrine of Sovereign Immunity or by operation of law. To the extent anything
contained in this Lease constitutes a waiver of sovereign immunity, such terms and conditions
shall be interpreted to the fullest extent possible to effectuate the intent of the parties, but
deleting any terms or conditions which would constitute a waiver of sovereign immunity.
20.17 Authority. Each party represents and warrants to the other that the execution and
performance of this Lease by each party has been duly authorized by all applicable laws and
regulations and all necessary corporate/company action, and this Lease constitutes the valid and
binding obligation of such party, enforceable in accordance with its terms.
20.18 Radon. Radon is a naturally occurring radioactive gas that, when it 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 your county public health unit.
20.19 Jury Waiver; Counterclaims. Landlord and Tenant waive trial by jury in any
action, proceeding, or counterclaim involving any matter whatsoever arising out of or in any way
connected with this Lease. Tenant further waives the right to interpose any permissive
counterclaim of any nature in any action to obtain possession of the Premises.
20.20 Force Majeure. Any delay or failure of either party hereto to perform its
obligations under this Lease shall not subject such party to any liability to the other party or place
it in breach of any term or condition of this Lease if (a) such delay or failure is caused by acts of
God, embargoes, governmental restrictions or regulations, strikes or other concerted acts of
workers, fire, flood, drought, explosion, riots, wars, acts or threats of terrorism, epidemics,
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disaster, civil disorder, rebellion, sabotage, curtailment of transportation service or public
utilities, or other similar events, and (b) such event or occurrence prevents the performance of
such party’s obligations under this Lease or makes the performance of such obligations illegal or
inadvisable; provided, however, that, in each case, the non-performing party shall promptly
notify the other party of such event or occurrence and shall exert commercially reasonable efforts
to overcome any such event or occurrence, if possible, and to resume performance of its
obligations with all possible speed. Recreation Division Manager Rodney Williams shall serve
as the Landlord's point person to keep Tenant informed of any possible cancellations or delays of
the Function due to circumstances described in this provision, and Tracy Perlman shall serve in
such capacity for Tenant.
20.21 No Use of Marks. Landlord will not use the NFL Marks (defined below) or any
reproduction of them in any advertising, commercial, promotion, publicity, marketing, sales
materials or display materials utilized by Landlord (including any materials published on a
commercial on-line service, the World Wide Web or successor media) ("Promotional Materials")
without receiving the NFL's prior written approval. Tenant specifically approves the preparation
of Council agenda items relating to this Lease and related Ch. 18A permits and discussion of
same at the public Orlando City Council meeting(s) where approval is scheduled to be decided.
Tenant understands that Landlord is a Florida municipal corporation which is required to operate
in compliance with Florida’s Sunshine laws as contained in Chapters 286 and 119, Florida
Statutes. Tenant acknowledges that nothing about Landlord seeking authorization for this Lease
and its related provisions shall be considered a violation of this section of the Lease, including
the regularly scheduled broadcasts of its City Council meetings on local cable television and any
media coverage the meeting(s). Tracy Perlman on behalf of Tenant shall be authorized to
approve any other requests from City relating to use of NFL Marks and Landlord shall coordinate
those requests through its Communications Director Michele Brennan. Landlord acknowledges
and agrees that all right, title and interest in and to the NFL Marks belongs to the NFL and its
Member Clubs. For purposes of this Lease, "NFL Marks" means the names, symbols, emblems,
designs, and colors of the National Football League and its member professional football clubs
("Member Clubs"), including without limitation the terms "National Football League", "NFL",
"National Football Conference", "American Football Conference", "NFC", "AFC", "Super
Bowl", "Pro Bowl" and the NFL Shield design, as well as the full team names, nicknames, past
and present helmet designs and uniform designs, logos and slogans of the Member Clubs, and
any other indicia adopted for commercial purposes by the NFL or any of its Member Clubs.
Landlord agrees that the NFL Marks possess a special and unique and extraordinary character
that makes difficult the assessment of the monetary damages that would be caused by any
unauthorized use of the NFL Marks, and agrees that injunctive and other equitable relief would
be appropriate in the event of such unauthorized use, and that such remedy would not be
exclusive of other legal remedies to the NFL. Landlord recognizes that the great value and
goodwill associated with the NFL Marks belongs to the NFL and its Member Clubs and that the
NFL Marks have secondary meaning. Landord will not make any reference to its relationship
with the NFL or any of its Member Clubs in connection with any Promotional Materials (as
defined above). This Section 20.21 shall survive the expiration or any termination of this Lease.
IN WITNESS WHEREOF, this Amended and Restated Lease shall become effective as of
the date and year stated above.
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LANDLORD - CITY OF ORLANDO
By:
Attest: Mayor/ Pro Tem
Alana C. Brenner, City Clerk
APPROVED AS TO FORM AND LEGALITY
for the use and reliance of the
City of Orlando, Florida, only.
, 2008.
City Attorney
Orlando, Florida
TENANT - ____________________, a
____________non-profit corporation
By:
Print Name:
Witnesses: Print Title:
____________________________________
Print Name: ___________________
___________________________
Print Name: ___________________
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