Vehicle Maintenance Facility Ground Lease Agreement for Orlando International Airport, between Greater Orlando Aviation Authority and All Aboard Florida Operations LLC, dated January 22, 2014

k.          FAA means the Federal Aviation Administration, or its authorized successor(s).

l.           Fair Market Value (FMV) shall have the same definition as defined by the FAA as follows: “the highest price estimated in terms of money that a property will bring if exposed for sale in the open market allowing a reasonable time to find a purchaser or tenant who buys or rents with knowledge of all the uses to which it is adapted and for which it is capable of being used. It is also frequently referred to as the price at which a willing seller would sell and a willing buyer buy, neither being under abnormal pressure. Fair Market Value will fluctuate based on the economic conditions of the area.”

m.         Improvement or Improvements means any item which is affixed to the Land or affixed to any Improvement thereto and which cannot be removed without material damage to the Land or another Improvement, and shall consist of those improvements to the Land required to maintain, repair, outfit, store and fuel trains.

n.          Land means the area of approximately eighty (80) acres of the Airport more particularly described on Exhibit “A-2,” attached hereto and incorporated herein by this reference, which the Rail Company is granted the right to develop, lease, market and manage the Vehicle Maintenance Facility in accordance with the terms and conditions of this Agreement.

o.          North Terminal Complex means collectively the central landside building and satellite airside buildings, the hotel, all ancillary buildings and all the roadways on the Airport existing as of the Effective Date of this Agreement.

p.          Operation and Use Agreement means the Operation and Use Agreement dated September 27, 1976, between the City of Orlando and the Greater Orlando Aviation Authority as amended from time to time.

q.          Permitted Use shall have the meaning set forth in Section 4.c.

r.          Premises Lease and Use Agreement means that certain Lease and Use Agreement between Rail Company and the Airport for the lease and use of space in the Rail Station Building.

s.          Rail Line Easement means that certain exclusive, non-perpetual easement granted by the Authority to the Rail Company over the Rail Line Easement Property (as defined in the Rail Line Easement) for the operation and maintenance of same in connection with the Rail Company’s rail operations at the Airport.

t.          Rail Line Easement Agreement means that certain agreement described in the recitals to this Agreement governing the rights and obligations of the Authority and Rail Company, or Affiliate, with respect to the Rail Line Easement.

u.          Rail Station Building means that building to be located, designed, engineered, permitted and constructed by the Authority adjacent to the South Airport APM Complex at the Airport which will include Rail Company Premises (which includes the platform) and consisting of three (3) levels. Ground transportation to be located on the first floor; rail access, including the viaduct structure from embankment to embankment and platforms to be located on the second floor; and ticket counters, hold rooms and transfer space to the APM and garage to be located on the third floor.

v.          Rail Transportation Business means that business operated by Rail Company at the Airport for the commercial transportation by rail of persons and baggage from Miami, Florida to Orlando, Florida, as such business may be expanded to other locations pursuant to the Rail Line Easement Agreement.

w.         Rent Commencement Date means the earlier of the date that (i) the later of the completion of construction of Improvements or delivery of the first train set or (ii) the date set forth in the Master Timeline attached to the Rail Line Easement Agreement (the “Master Timeline”).

x.          South Airport APM Complex means the planned APM and other rail related facilities to be constructed by the Authority to consist of infrastructure including a garage structure with at least approximately One Thousand Five Hundred (1,500) automobile spaces, roadways, and stormwater drainage to service said complex.

y.          Term shall have the meaning set forth in Section 3 contained herein.

z.          Termination Event of Default shall have the meaning set forth in Section 11.a.

aa.        TSA means the Transportation Security Administration of the Department of Homeland Security, or any successor.

bb.       Vehicle Maintenance Facility means the repair and maintenance facility to be constructed by Rail Company on the Land and utilized by Rail Company for the Permitted Use.

Additional defined terms appear in other provisions of this Agreement and will have the respective meanings assigned to them.

3.          Term. The Term of this Agreement is defined as the period beginning on the Effective Date and shall expire on the date that is fifty (50) years after the Rent Commencement Date, as defined above, unless sooner terminated in accordance with the terms and provisions hereof. The Authority shall deliver possession of the Land to Rail Company pursuant to the Master Timeline.

4.          Demise of Land. Subject to the terms and conditions set forth in this Agreement, the Authority hereby demises and leases to Rail Company and Rail Company hereby leases from the Authority the Land and currently existing improvements. The Land together with any buildings, structures, fixtures, fences, utility installations, parking facilities, landscaping and irrigation systems currently existing or hereafter located thereon, including the Rail Company Improvements (the “Facility”) are conceptually shown on Exhibit A-3. It is acknowledged and agreed that the exact boundaries of the Land shall be determined by a survey to be prepared by Rail Company at Rail Company’s expense (“Survey”) and delivered to the Authority. The Survey shall be prepared by a surveyor licensed by the State of Florida and shall be certified to the Authority as being prepared in accordance with the minimum technical standards as set forth in the Florida Administrative Code, and shall otherwise be reasonably acceptable to the Authority and shall set forth the square footage of the Land. The Survey and legal description for the Land thereon shall be designated as Exhibit “A-2” and added, as an amendment to this Agreement, as the description of the Land for the purposes of this Agreement. Rail Company leases the Land subject to, and Rail Company agrees to comply: (i) with all applicable building codes, zoning regulations, and municipal, county, state and federal laws, ordinances and regulations governing or regulating the Facility or its uses (collectively, the “Applicable Laws”) (provided that Rail Company shall have the right to contest Applicable Laws subject to the terms of Section 4.e below), (ii) with all covenants, easements and restrictions of record, (iii) the Greater Orlando Aviation Tenant Design Guidelines, as may be amended from time to time (“Airport Design Guidelines”), and (iv) materially with all applicable conditions of the Orlando International Airport Master Plan, as may be amended from time to time (the “Airport Master Plan”). The Authority shall provide Rail Company with notice of any amendments of the Airport Design Guidelines or Airport Master Plan that may affect the Land. No such amendments shall materially interfere with Rail Company’s construction and thereafter operation of the Rail Transportation Business, it being understood and agreed that it is of the utmost importance for Rail Company to be able to operate the Rail Transportation Business in a convenient, safe, efficient and continuous manner in order to deliver uninterrupted service to its passengers.

a.          Condition of Land. The City is the owner in fee simple of the Land, and the Authority operates the Land under an Operation and Use Agreement with the City dated September 27, 1976, as amended (such Operation and Use Agreement, as amended, is hereinafter the “Operation and Use Agreement”). Pursuant to the Operation and Use Agreement, the Authority warrants to Rail Company that the Authority has the full power and authority to enter into this Agreement and perform its obligations hereunder. Prior to the Effective Date, Rail Company, at its sole cost, undertook such title, wetlands, geotechnical and environmental inspections, testing and survey of the Land as Rail Company desired, for the purpose of evaluating the Land regarding the presence of wetlands, the geotechnical characteristics, as well as the surface and subsurface and environmental conditions of the site and identifying conditions which will be factored into the design and cost of construction. Subject to the terms and conditions of this Agreement, Rail Company accepts the Land “AS-IS.” Rail Company acknowledges that the Authority has made no representations or warranties relating to the suitability of the Land for any particular use except as otherwise provided herein, and unless otherwise expressly provided in this Agreement, the Authority shall have no obligation whatsoever to repair, maintain, renovate or otherwise incur any cost or expense with respect to the Land.

b.          Construction of Improvements by Rail Company. Rail Company shall have the right, but not the obligation, to construct Improvements related to its Permitted Uses. Rail Company, at Rail Company’s sole expense, shall prepare preliminary plans and specifications in accordance with the Airport Design Guidelines and under the seal of a duly licensed architect or engineer (the “Plans”) to construct the Vehicle Maintenance Facility and all Improvements serving the Land as set forth in Exhibit “B,”attached hereto, and shall submit the Plans to the Authority for review and approval prior to commencement of construction, such approval shall not be unreasonably withheld. The Authority shall either approve or reject the Plans within thirty (30) days after Rail Company’s submission and if the Authority does not give comments to or reject the Plans within said 30-day period the Plans shall be deemed approved. If the Authority does not approve the Plans, the Authority’s rejection notice shall also include its requested changes to the Plan. After the Authority’s approval of the Plans, Rail Company, at Rail Company’s sole expense, shall apply for and diligently pursue all licenses, permits and other authorizations (collectively, the “Permits”) needed to construct the Improvements. After receipt of all Permits, Rail Company shall provide copies of same to the Authority and shall construct the Improvements in accordance with (i) the Permits and all Applicable Laws (ii) the Plans, (iii) all covenants, easements and restrictions of record, (iv) materially with all applicable conditions of the Airport Design Guidelines, (v) materially with all applicable conditions of the Airport Master Plan, and (vi) the requirements of Exhibit “B” attached hereto. Rail Company’s Improvements shall include a temporary at-grade crossing to accommodate the Authority’s construction haul road (the “Haul Road Crossing”). The Haul Road Crossing shall be permitted so long as the Authority requires access to development the South Terminal Complex, as defined in the Premises Lease and Use Agreement, support areas. All liability associated with the Haul Road Crossing is the responsibility of the Rail Company, subject to Section 9 hereof.

Although the parties desire to minimize the establishment of any at-grade crossings, if the Authority finds it necessary to establish one or more new at-grade pedestrian and vehicular crossings, then to the extent such at-grade crossings do not adversely impact the operation of the Rail Project in any material respect and provided the plans and specifications therefor are approved by Rail Company, which shall not be unreasonably withheld, the parties shall enter into a License Agreement allowing such crossings, which shall include, without limitation, (i) the cost of the installation of any work related to the at-grade crossing, including signalization and other equipment, shall be performed by Rail Company at the cost of the Authority, (ii) maintenance of the crossing shall be performed by Rail Company at the Authority’s expense, and (iii) an indemnity from the Authority in favor of Rail Company as contemplated below. The standards applicable to any new at-grade crossings which will comparable to at-grade crossings established by Rail Company for such crossings along the remainder of the route outside of the Airport. In the event the parties establish any new at-grade pedestrian and/or vehicular access points across the rail lines leading into or out of the Land as set forth above, the License Agreement will include an indemnity by the Authority in favor of Rail Company equivalent to the indemnity provided by Rail Company to Authority pursuant to Paragraph 9.a. below, except it shall be limited by provisions of Fla. Stat. §768.28, as such statutory limitation may be amended from time to time. Any at-grade crossings desired by third parties (light rail or otherwise) shall be subject to Rail Company and such third parties entering into a License Agreement allowing such crossings, which shall include, without limitation, an indemnity from such third party in favor of Rail Company. Without limiting the generality of the foregoing, Rail Company acknowledges that the alignment for the Sun Rail commuter train will require an at-grade crossing at the entrance drive to the Facility, and Rail Company agrees to enter into a License Agreement with Sun Rail as contemplated above in order to accommodate Sun Rail’s alignment.

c.          Permitted Use. Rail Company shall be permitted to use the Land for any and all lawful purposes relating to the construction, operation and maintenance of the Rail Company Transportation Business, including the operation of a rail maintenance facility and operations center, open 24 hours per day, 7 days per week, 365 days per year, for the purpose of Rail Company and its employees, agents and assigns repairing and maintaining train sets and other vehicles used by Rail Company in the Rail Transportation Business (including interior and exterior repairs and maintenance of vehicles and any parts thereof, engine and other mechanical repairs and maintenance, fueling of vehicles, and storage), and controlling all rail activity, and such other uses as approved in advance by the Authority (the “Permitted Use”). Rail Company shall operate the Land in compliance with all Applicable Laws and the terms and conditions of this Agreement. No other use of the Land besides the Permitted Use shall be allowed without the prior written consent of the Authority. There shall be no display advertising permitted on the Facility.

d.          Signage. All Rail Company signage on the Facility shall comply with the Airport Graphic Standards and the Airport Design Guidelines (a copy of which Airport Design Guidelines is available upon request), as such guidelines may be amended from time to time, and must be approved in writing by the Authority before being installed. Such approval shall not be unreasonably withheld, conditioned or delayed.

e.          Contest of Applicable Laws. Rail Company may exercise any rights provided by law to contest the Applicable Laws and shall not thereby be deemed in default under this Agreement, provided: (i) no Event of Default has occurred and is continuing hereunder; (ii) upon request by the Authority, Rail Company shall provide security reasonably satisfactory to the Authority assuring compliance with such Applicable Laws and protecting the Authority and the Land against any penalty, fine, charge or other expense which may arise as a result of any delay in compliance therewith; (iii) such contest shall operate to suspend enforcement of compliance with the Applicable Laws; and (iv) such contest is maintained and prosecuted by Rail Company, at Rail Company’s cost, with due diligence.

f.           Escrow Agreement. This Agreement is an Escrow Document to be held in escrow by the Closing Agent, until satisfaction of each and every Escrow Condition all as set forth in the Rail Line Easement Agreement. All capitalized terms in this Section are defined in the Rail Line Easement Agreement.

5.          Payment of Annual Rent and Other Charges.

a.          Determination of Fair Market Rental Value. The annual Fair Market Rental Value of the Land shall be equal to eight percent (8%) of the FMV of the Land. The Authority determined through an appraisal that the initial Fair Market Value for the rental of the Land is $582,400.00 per year. The value of any Improvements on the Land which have been installed or constructed by the Rail Company in accordance with Section 4, above shall not be included in determining the fair market rental value of the Land now or hereafter.

In the event the then Fair Market Value of the Land has not been determined until after the date upon which the required adjustment is to become effective, the annual rent previously in effect shall continue until such Fair Market Value and the new annual rent is determined. Once determined, the new annual rent shall become effective, retroactive to the date upon which such adjustment was required, and within ten (10) days after the Rail Company has received notice of the new annual rent, Rail Company shall pay to the Authority any additional annual rent that is due and owing, if any.

b.          Commencement of Rent and Payments. Payments of annual rent hereunder shall commence on the Rent Commencement Date. Commencing on the Rent Commencement Date, Rail Company shall make monthly payments of one-twelfth (1/12) of the total annual rent, as may be adjusted from time to time, for the Land, without demand or invoice, on the first day of each month. Said rentals and charges shall be deemed delinquent if payment is not received by the twentieth (20) day of the month. If Rail Company is required to remove and back fill muck pocket(s) with clean fill and compact same to allow development of the Land over and above normal site development requirements on the Land (i.e., muck to be removed and back filled at a depth at or below five (5) feet below ground surface) (“Extraordinary Site Development Costs”), Rail Company shall be entitled to a credit, subject to the Authority’s approval which shall not be unreasonably withheld, against the Rent in an amount equal to the additional Extraordinary Site Development Cost, but in no event shall the credit exceed ONE MILLION FIVE HUNDRED THOUSAND and No/100 Dollars ($1,500,000.00) (“Muck Credit”). The Rail Company shall provide the design and engineering plans for the site work, scope of work, cost information, a professional engineer’s opinion confirming the Extraordinary Site Development Costs and all backup information requested by the Authority to confirm the Extraordinary Site Development Costs for the Muck Credit. To the extent that Rail Company is entitled to any rent credits hereunder arising from the Rail Line Easement Agreement, Rail Company may apply any such rent credits towards the rent payments as and when due hereunder.

c.          Rail Company’s Right to Cancel. If during the Escrow Term, as defined in the Rail Line Easement Agreement, a professional engineer certifies the estimate for the total removal and back fill of muck on the Land, and such certified amount exceeds FIVE MILLION DOLLARS and NO/100 ($5,000,000.00), then the Rail Company, at its option, may cancel this Agreement by notifying the Authority in writing prior to the expiration of the Escrow Term, unless within thirty (30) days after Authority’s receipt of such termination notice, Authority notifies Rail Company that Authority will increase the maximum Muck Credit by an amount equal to the amount by which the certified estimate exceeds $5,000,000.00.

d.          Change in Annual Rent. The initial determination of the annual rent shall be fixed for five (5) years commencing on the Rent Commencement Date. Thereafter, the Authority and Rail Company agree that, once every five (5) years the Land will be appraised in accordance with the procedures set forth below. The annual rent shall be adjusted for each such five (5) year period based on the appraised Fair Market Value, but in no event shall the annual rent be reduced and shall not be increased by more than thirty five percent (35%) of the previous five (5) year period rent. If an increase exceeds twenty five percent (25%) of the previous five (5) year period rent, then Rail Company shall have an option to terminate this Agreement provided that written notice exercising said option is delivered to the Authority within six (6) months of the rate increase notice from Authority. Rail Company shall vacate the Land within one (1) year of providing the written notice of exercising the above option.

Subsequent appraisals of Fair Market Value of the Land shall be determined as follows: The Authority at its expense shall obtain an appraisal of the Fair Market Value from an appraiser (the “First Appraiser”) who meets the Appraiser Qualifications, as hereinafter defined. The appraisal shall be obtained by the Authority and provided to Rail Company. If Rail Company disagrees with the First Appraiser’s appraisal, Rail Company shall, within thirty (30) days after receipt of such appraisal, notify the Authority of Rail Company’s selection of a second appraiser meeting the Appraiser Qualifications (the “Second Appraiser”). If Rail Company does not so select a Second Appraiser and notify the Authority of such selection within such thirty (30) day period, the First Appraiser’s appraisal shall be conclusive as to the Fair Market Value of the Land. If a Second Appraiser is so selected, the Second Appraiser shall have thirty (30) days to conduct an appraisal of the Fair Market Value of the Land. Upon completion, Rail Company shall provide the Second Appraiser’s appraisal to the Authority and the First Appraiser. If the appraisals by the First Appraiser and Second Appraiser are within ten percent (10%) of the higher appraisal, then the average of the two appraisals shall be deemed to be the Fair Market Value of the Land. If the two appraisals are not within ten percent (10%) of the higher appraisal, then the First Appraiser and Second Appraiser shall meet within fifteen (15) days after receipt of the Second Appraiser’s appraisal in order to attempt to agree on the Fair Market Value of the Land. If the First Appraiser and Second Appraiser cannot agree on the Fair Market Value within fifteen (15) days after such meeting, then the Authority and Rail Company shall select a third appraiser meeting the Appraiser Qualifications (the “Third Appraiser”). If the Authority and Rail Company cannot agree upon a Third Appraiser within fifteen (15) days, the Authority and Rail Company shall, within fifteen (15) days thereafter, apply to the East Florida Chapter of the Appraisal Institute to select the Third Appraiser, and such selection shall be final. The Third Appraiser shall then select only the First Appraiser’s appraisal or the Second Appraiser’s appraisal as being the Fair Market Value of the Land, and the decision of the Third Appraiser shall be final and binding. Each party shall pay the fees and expenses of each appraiser appointed by such party, and the fees and expenses of the Third Appraiser and all other expenses, if any, shall be borne equally by both parties. Any appraiser designated to serve in accordance with the provisions of this Agreement shall be designated an “MAI” appraiser by the Appraisal Institute, shall be disinterested, shall be qualified under Florida law to appraise real estate of the type covered by this Agreement, and shall have been actively engaged in the appraisal of real estate situated in Orange County, Florida for a period of not less than five (5) years immediately preceding his or her appointment (the “Appraiser Qualifications”).

e.          Changes in Rates, Fees and Charges. Adjustments to rates for the annual rent shall apply without the necessity of formal amendment of this Agreement.

f.          Delinquent Rent. Any installment of Annual Rent, Additional Rent, or other amounts due from Rail Company under this Agreement, that is not received within ten (10) days after written notice from the Authority to Rail Company of the Authority’s failure to receive such amount, shall bear interest from the date when the same was due until paid by Rail Company at the interest rate of the highest rate permitted by law minus three percent (3%).

g.          Sales, Use, Ad Valorem and Other Taxes. Rail Company shall be solely responsible for the paying when due all applicable taxes, if any (including, without limitation, sales, use, ad valorem or leasehold intangibles taxes, if any are required to be paid), assessments (including, without limitation, stormwater utility charges) and impact fees levied against or in connection with the Land, Rail Company’s leasehold interest therein, and any Improvements thereto, and shall pay when due all taxes and assessments levied against Rail Company’s personal property located on the Land or otherwise arising out of Rail Company’s occupation, use of or operations on the Land. In the event Rail Company fails to pay such taxes and assessments when due, Rail Company shall be obligated to pay all resulting interest and penalties on such delinquent taxes and assessments. To avoid delinquency, the Authority shall have the right, but not the obligation, to pay any such taxes or assessments on behalf of Rail Company and to collect the amount of such payment from Rail Company, together with interest assessed by any taxing authority having jurisdiction, as Additional Rent. If the Term of this Agreement expires or is earlier terminated prior to the close of the tax year for which any such tax is payable, or if the Term of this Agreement commences on a date other than the first day of such tax year, Rail Company shall be responsible for paying a percentage of the tax calculated by dividing the number of days that this Agreement was in effect during such tax year by the total number of days in such tax year. If this Agreement is in effect for a period less than any entire period for which an assessment other than a tax is imposed, Rail Company shall pay a percentage of the assessment calculated by dividing the number of days this Agreement was in effect during that assessment period by the total number of days in the assessment period.

h.          Rail Company’s Tax Rights. Rail Company may exercise any rights provided by law to contest or pay under protest any taxes and shall not thereby be deemed in default under this Agreement, provided that such contest or payment under protest does not result in the imposition of a lien for delinquent taxes on the Land or any Improvements and Rail Company promptly pays all taxes and assessments (and any interest and penalties with respect thereto) ultimately determined to be due. No provision of this Agreement shall be construed as a release or waiver on the part of the Authority or the City of the right to assess, levy or collect any license, personal property, intangible, occupation or other tax which they, or either of them, may lawfully assess, levy or collect on the business or property of Rail Company. Rail Company’s obligations under this Article shall survive the expiration or earlier termination of this Agreement.

i.           Security for Payment of Rent.

 i.          Rail Company shall provide the Authority within thirty (30) days after the Rent Commencement Date with a contract bond, irrevocable letter of credit or other similar security reasonably acceptable to the Authority (“Performance Security”) in an amount equal to three (3) months’ annual rental payable by Rail Company pursuant to Section 5, to guarantee the faithful performance by Rail Company of its obligations under this Agreement and the payment of all rentals, fees and charges due hereunder. Rail Company shall be obligated to maintain such Performance Security in effect until the expiration of sixty (60) consecutive months following the Rent Commencement Date (the “Performance Security Termination Date”). If no Event of Default exists as of the Performance Security Termination Date, the Performance Security shall be returned to Rail Company within thirty (30) days. If an Event of Default exists as of the Performance Security Termination Date, the Performance Security shall be returned to Rail Company within thirty (30) days after the Event of Default is cured. Such Performance Security shall be in a form and with a company reasonably acceptable to the Authority and licensed to do business in the State of Florida. In the event that any such Performance Security shall be for a period less than the full period required by this Section or if Performance Security shall be canceled, Rail Company shall provide a renewal or replacement Performance Security for the remaining required period at least thirty (30) days prior to the date of such expiration or cancellation. The Authority may waive any requirement herein in its exclusive discretion.

 ii.          In the event the Authority is required to draw down or collect against Rail Company’s Performance Security for any reason, Rail Company shall, within thirty (30) business days after the Authority’s written demand, take such action as may be necessary to replenish the existing Performance Security to its original amount or to provide additional or supplemental Performance Security from another source so that the aggregate of all Performance Security is equal to the amount of the Performance Security required above.

 iii.          If Rail Company is not required to have Performance Security in place at any time, then, upon the occurrence of any Event of Default, or upon the failure of Rail Company to pay any rentals, fees or charges hereunder when due for sixty (60) consecutive days, or upon Rail Company’s election to assume this Agreement under Federal Bankruptcy Rules and Regulations and Federal Judgeship Act of 1984 or any successor statute, as such may be amended, supplemented, or replaced, the Authority, by written notice to Rail Company given at any time within ninety (90) days after the date such event becomes known to the Authority, may impose or reimpose the Performance Security requirements on Rail Company. In such event, Rail Company shall provide the Authority with the required Performance Security within thirty (30) days from its receipt of such written notice and shall thereafter maintain such Performance Security in effect until the requirements for removal of the Performance Security set forth above are met (for purposes of this paragraph, the Performance Security Termination Date shall be sixty (60) months after the Performance Security is provided).

 iv.          Rail Company and the Authority agree that this Agreement constitutes an “executory contract” for the purposes of Section 365 of the United States Bankruptcy Code (Title 11 U.S.C.) subject to assumption or rejection, and subject to the terms and conditions of assumption or rejection, as provided in said Section 365. Furthermore, Rail Company and the Authority agree that any Performance Security provided by Rail Company are not “property of the estate” for purposes of Section 541 of the United States Bankruptcy Code (Title 11 U.S.C.), it being understood that any Performance Security is property of the third party providing it (subject to the Authority’s ability to draw against the Performance Security to the extent permitted by law).

 v.          No Further Charges. Other than the rents, fees and charges expressly set forth in this Agreement or any other agreement between the Authority and Rail Company including, but not limited to, the Rail Line Easement Agreement and the Premises Lease and Use Agreement, or as may be permitted or required by any governmental entity (other than the Authority, acting within its proprietary capacity) having jurisdiction over the Airport, no further rentals, fees, or charges shall be charged against or collected from Rail Company, its passengers, its suppliers of material, its contractors or furnisher of services, by the Authority, acting in its capacity as Airport proprietor, for the Land, facilities, rights, licenses, and privileges granted to Rail Company herein.

6.          Surety Bonds; Ownership and Removal of Improvement.

a.          Surety Bonds.

i.          Prior to the commencement of any improvements greater than $200,000 at the Airport, Rail Company shall obtain, or cause to be obtained by its Contractor(s), as defined in Section 9(b), and deliver to the Authority and record in the public records of Orange County, Florida, payment and performance bonds in sums equal to the full amount of the construction contract awarded by Rail Company for the improvements, as described more fully herein.

ii.         Such payment and performance bonds required hereunder shall name the Contractor of Rail Company as principal, shall name the Authority as an additional obligee thereunder through a multiple obligee rider and shall be drawn from such company licensed to do business in the State of Florida, subject to the Authority’s reasonable approval.

iii.        All payment bonds required hereunder from any Contractor of Rail Company shall be in the sum equal to the full amount of the construction contract awarded by Rail Company for the improvements. Such payment bonds shall be conditioned upon the payment of all labor, materials, equipment and supplies used in the performance of said construction contract.

iv.        All performance bonds required hereunder from any Contractor of Rail Company shall guarantee the faithful performance of said construction contract and shall protect the obligees from losses, damages, expenses, costs, and attorney’s fees, including appellate proceedings, that the obligees sustain because of a default by the Contractor under the contract.

v.         Rail Company shall also obtain a demolition bond in a sum equal to the estimated cost of removal of the rail tracks (less estimated salvage value). The demolition bond shall name the Authority as an obligee, shall be drawn from a company acceptable to the Authority and licensed to do business in the State of Florida and shall guarantee the removal of any and all Improvements upon termination of the Rail Line Easement. The demolition bond shall be an annual bond that is renewed each year by Rail Company for a period of ten (10) years from the initiation of rail service to the Airport. The failure of a surety to renew such demolition bond shall not be deemed a default of such bond. The demolition bond may be issued by different sureties during the ten (10) year period, subject to the terms regarding the qualifications and approval of sureties. From and after the expiration of such ten (10) year period, Rail Company is not required to continue to maintain the demolition bond.

vi.        Bonds required hereunder shall be submitted in the forms that fully comply, both in form and substance, with the requirements of Section 255.05, Fla. Stat., any successor thereto and any other applicable law or regulation and shall be reasonably acceptable to the Authority. Rail Company shall provide the Authority with a certified copy of the bonds as evidence of thereof, which shall be recorded by the Rail Company, if requested by the Authority.

vii.       Any construction or installation work by or for Rail Company at the Airport shall not unreasonably interfere with the operation of the Airport, or otherwise unreasonably interfere with the permitted activities of other tenants and users. Upon completion of approved construction and within sixty (60) days after Rail Company’s receipt of a certificate of occupancy, a complete set of as-built drawings shall be delivered to the Executive Director in a media type and format reasonably acceptable to the Authority for the permanent record of the Authority.

b.          Alternate Form of Security.

 In lieu of a payment bond and a performance bond in the amount of any contract between Rail Company and a contractor, and in lieu of a demolition bond, pursuant to Section 255.05, Fla. Stat., Rail Company may furnish or caused to be furnished to the Authority an alternate form of security in the form of cash, a money order, a certified check, a cashier’s check, an irrevocable letter of credit, or security of a type listed in Part II of Chapter 625, Fla. Stat., in the amount of the underlying contract (or the estimated demolition cost in the case of the demolition bond). Any such alternative form of security shall be for the same purpose and be subject to the same conditions as those applicable to the bond for which the alternative form of security is being substituted. The determination of the value of an alternative form of security shall be reasonably made by the Authority.

c.          Surety’s Qualifications.

i.          It is further mutually agreed between Rail Company and the Authority that if at any time, the surety that issued a bond no longer meets the requirements set forth in subsection c.ii below, Rail Company shall, at its expense, within fifteen (15) days after the receipt of notice from the Authority to do so, furnish or cause to be furnished an additional or replacement bond or bonds from a surety that meets the requirements hereof.

ii.        Any bond shall be on a form to be provided by the Authority and shall be written by a company that meets at least one of the following criteria: (i) has at least one investment grade long-term debt rating from Moody’s Investors Service (“Moodys”), Standard & Poor’s Financial Services (S&P”) or Fitch Ratings (“Fitch”); or (ii) has a financial strength rating of A- or better from A.M. Best Company (“A.M. Best”). any letter of credit provided hereunder shall be on a form provided by the Authority and shall be issued by an FDIC-Insured bank that meets a minimum of one of the following criteria: (iii) has at least one investment grade long-term debt rating from Moody’s, S&P or Fitch; or (iv) has a financial strength rating of A- or better from A.M. Best; or (v) has at least $100 million in total assets, has maintained this asset level for the past three (3) years, and has maintained a tier 1 (core) risk based capital ratio of at least six percent 6% for the past three (3) years. In addition, no bank that is subject to a current enforcement action by any regulatory agency may provide a bond or letter of credit. Finally, bonds and letters of credit must be provided by institutions physically located within the United States.

d.          Contractor Insurance. Rail Company shall require contractors to maintain, and provide evidence reasonably satisfactory to the Authority of insurance (including, but not limited to, worker’s compensation/employer’s liability insurance, commercial general liability insurance, automobile liability insurance, and builder’s risk insurance), in such amounts and in such manner as the Authority may reasonably require.

e.          Responsibility for Construction. Any construction or installation by or for the benefit of Rail Company shall be at the sole risk of Rail Company and shall be in accordance with the all Applicable Laws and subject to inspection by the Executive Director.

f.          Ownership of Improvements. All Improvements made to Land and additions and alterations thereto made by Rail Company shall be and remain the property of Rail Company until expiration of the Term of this Agreement.

i.          Upon the expiration of this Agreement, Rail Company may, within 180 days after expiration, remove all Improvements constructed as part of the Facility at no cost to the Authority; and even if Rail Company elects not to so remove, then at the Authority’s option, Rail Company shall within 180 days after expiration, remove all Improvements constructed as part of the Facility at no cost to the Authority. Subject to the rights of any Recognized Mortgagee, as defined in Section 15.k, upon the termination of this Agreement by default or option pursuant to Section 5.c., at the Authority’s option, in its sole and absolute discretion, the Rail Company shall remove all Improvements constructed as part of the Rail Project at no cost to the Authority within one hundred eighty (180) days after termination. The Authority shall notify Rail Company within thirty (30) days after the termination or expiration that the Authority has elected to have Rail Company remove the Improvements. Rail Company may also remove any and all moveable trade fixtures and equipment (specifically including, without limitation, the rolling stock, wayside signals and communications equipment used in the operation of the Rail Project) at no cost to the Authority. If Rail Company removes any Improvements, then it shall remove all the Improvements and shall then restore the Property where such Improvements have been removed to the condition that existed as of the Effective Date (by, for example, removing embankments, track structures and associated improvements and restoring existing topography, re-grading and seeding the areas where Improvements were removed and where grass had previously existed) within 365 days after the termination or expiration of this Agreement. If Rail Company fails to remove the Improvements, the Authority (i) has the right to utilize the demolition bond referenced in Section 6.a.v. within the first ten (10) years of the Agreement or (ii) has the right to remove the Improvements and bring an action against the Rail Company seeking all costs and expenses associated with their removal. The Authority shall provide Rail Company with reasonable access to the Property for Rail Company to complete actions permitted and/or required by this Section. The terms and provisions of this Section shall survive the expiration or earlier termination of this Agreement until completion of such removal and restoration. If Rail Company elects to not remove all the Improvements, as evidenced by its failure to begin removing Improvements within one hundred eighty (180) days after the termination or expiration of this Agreement, all Improvements and any other Rail Company property then remaining on the Land shall be deemed to have been abandoned by Rail Company, and may be retained or disposed of by the Authority, in its sole discretion, in accordance with applicable law, in which event Authority and Rail Company shall have no further liability to each other on account thereof. If Rail Company removes all the Improvements as provided in this paragraph, any other Rail Company property remaining on the Property on the date that is 365 days after the termination or expiration of this Agreement shall be deemed to have been abandoned by Rail Company, and may be retained or disposed of by the Authority, in its sole discretion, in accordance with applicable law, in which event the Authority and Rail Company shall have no further liability to each other on account thereof.

ii.        Notwithstanding the above, the Rail Company shall not be required to remove any permanent buildings from the Land that are, in the Authority’s sole discretion, viable to be put to use by a subsequent tenant.

7.          Maintenance and Utilities.

a.          Maintenance. The Authority shall have no obligation to maintain, repair, replace or renovate the Facility, Rail Company’s Improvements or incur any cost or expense with respect to the Facility. Rail Company shall be solely and fully responsible for all costs of operation and maintenance of the Facility during the Term. Without limiting the foregoing, during the Term of this Agreement, Rail Company shall, at its sole cost and expense, keep and maintain the Facility, including, without limitation, all portions of any buildings, the electrical, HVAC, plumbing and security systems, fixtures, trade fixtures, machinery, furnishings, signage and all other portions of the Improvements, in good repair and working order (reasonable wear and tear and insured casualty excepted), and in a clean, properly maintained and safe condition. The Facility and exterior, and interior of any buildings shall be maintained by Rail Company in a high quality condition consistent with other maintenance facilities at the Airport and in accordance with applicable City and Authority regulations. All maintenance, repairs and replacements of the Improvements shall be of a quality at least equal to the original in materials and workmanship. Rail Company shall promptly repair, at its expense and in a manner reasonably acceptable to the Authority, any damage to the Authority’s property or to the property of others, caused by Rail Company or its officers, agents, employees, and contractors (subject to Section 9.b.xv). Rail Company shall keep and maintain all grass and landscaping on the Facility in a neat and attractive manner consistent with other facilities at the Airport. Upon not less than twenty-four (24) hours prior notice (except in cases of emergency), during business hours and accompanied by a representative of Rail Company, the Authority shall have the right to enter the Facility to determine whether or not Rail Company is complying with its maintenance obligations hereunder.

b.          Trash and Garbage. During the entire Term of this Agreement, Rail Company shall be responsible for the storage, collection and removal from the Land of all trash, garbage and other refuse resulting from Rail Company’s activities on the Land. Rail Company shall provide appropriate, covered, metal receptacles for trash, garbage and other refuse, will maintain the receptacles in a safe and sanitary manner, and will store receptacles in inconspicuous places on the Land that are screened from public view in accordance with the Airport Design Guidelines.

c.          Utilities. During the entire Term of this Agreement, Rail Company shall be responsible, at Rail Company’s sole cost and expense, for costs related to utility services on or within the Land; provided, however, Rail Company shall not be responsible for the maintenance of any utilities located off the Land. Except as otherwise provided herein, Rail Company agrees that the Authority shall have no liability to Rail Company arising out of any failure or interruption of utility service to the Land, unless such failure or interruption was caused by the negligence or willful misconduct of the Authority, its agents, employees, or contractors. For purposes of this Section, the acts of a third party shall not constitute acts within the control of the Authority unless such acts were undertaken pursuant to a contract with or authorization by the Authority. Additionally, Rail Company shall be responsible for the cost of reclaimed water for irrigation of landscaping on the Land, and shall at Rail Company’s expense install a meter to measure use.

8.          Destruction of Improvements.

a.          Obligations of Rail Company. In the event the Improvements are damaged or destroyed in whole or in part by fire or other casualty, Rail Company shall give prompt written notice thereof to the Authority, and Rail Company, at its own expense, shall promptly repair, replace and rebuild buildings sufficient meet the needs of the Rail Company, if any. Notwithstanding the foregoing, if such fire or other casualty occurs within the last ten (10) years of the Term of this Agreement, Rail Company shall have the right, which may be exercised by Rail Company in its sole discretion, to terminate this Agreement, upon written notice to the Authority, without incurring any liability or any obligation to repair, replace or rebuild the damaged or destroyed Improvements; provided, however, Rail Company shall demolish and/or remove any remaining Rail Company Improvements and/or debris and grade level the Land. Damage to the Improvements shall not cause an abatement of Rail Company’s obligation to pay Annual Rent to the Authority or to make any other payments required to be made by Rail Company under this Agreement.

b.          Insurance Proceeds. Upon receipt by Rail Company or the Authority of the proceeds of any property or builder’s risk insurance policy or policies, Rail Company or the Authority shall deposit same in an interest-bearing escrow account to pay for the cost of such repair, replacement and rebuilding. Rail Company shall receive and hold such proceeds (and any interest earned thereon) in trust for such work, and Rail Company shall distribute such proceeds (and any interest earned thereon during construction) solely to pay the cost of such work. If the amount of such insurance proceeds (together with the interest earned thereon) is insufficient to pay the costs of the necessary repair, replacement or rebuilding of such damaged Improvements, Rail Company shall pay any additional sums required, and if the amount of such insurance proceeds (together with the interest earned thereon) is in excess of the costs thereof, the amount of such excess shall be retained by Rail Company. Notwithstanding anything in this Section to the contrary, Rail Company shall solely be entitled to receive and retain any insurance proceeds for Rail Company’s personal property, including any trains.

9.          Indemnification, Insurance and Environmental.

a.          Indemnification. Rail Company shall indemnify, defend and hold completely harmless the Authority, the City and the members (including, without limitation, all members of the governing board of the Authority, the Orlando City Council and the advisory committees of each), officers, agents and employees of each (the “Indemnified Parties”) from and against any and all third-party claims, suits or demands resulting in judgments, losses, costs, fines, penalties, damages, liabilities (including without limitation statutory liability, liability under Worker’s Compensation Laws and liability related to environmental issues), and expenses (including all costs for investigation and defense thereof, including, but not limited to, court costs, reasonable expert witness fees and Attorney’s Fees) (collectively, “Claims”) which are actually incurred by, charged to or recovered from any of the Indemnified Parties and which arise on the Land (i) out of the use, occupancy or maintenance of the Land, including any Improvement thereto or (ii) in connection with any of Rail Company’s rights and obligations contained in this Agreement, including, but not limited to, any and all Claims for damages as a result of the injury to or death of any person or persons, or damage to any property which arises as a result of any act or omission on the part of Rail Company or its officers, partners, employees, agents, contractors, subcontractors, or licensees, regardless of where the damage, injury or death occurred, unless any such Claim was caused solely by (A) the negligence, gross negligence or willful misconduct of any Indemnified Party or by (B) the joint negligence, gross negligence or willful misconduct of any Indemnified Party and any person other than Rail Company or Rail Company’s officers, partners, employees, agents, contractors, subcontractors, or licensees or invitees.