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Home My WebLink AboutSEOPW-CRA-2003-01-27-Discussion Item 18f r- ® • ITEM 18 CITY OF MIAMI, FLORIDA INTER -OFFICE MEMORANDUM To: Chairman Arthur E. Teele, Jr. and Date: January 24, 2003 File: Members of the CRA Board Subject: Report from Special Counsel From: Frank K. Rollason References: CRA Executive Director Enclosures: Supporting documentation Report from Special Counsel a. P5 Closing b. Ward Rooming House c. St. John's Settlement Update d. P7 Lease Agreement Status e. Vectour Bus Bankruptcy ® S-2 • P5 CLOSING SEOPW/CRA Law Offices Annapolis Northern Virginia HOT kND & K LL Atlanta Orlando •■ - 1GHT Bethesda Portland Boston Providence 701 Brickell Avenue Bradenton San Antonio Suite 3000 Chicago San Francisco P.O. Box 015441(ZIP 33101-5441) Fort Lauderdale Jacksonville Seattle St. Petersburg Miami, Florida 33131 Lakeland Tallahassee Los Angeles Tampa 305-374-8500 Melbourne Washington, D.C. FAX 305-789-7799 Miami West Palm Beach http:/Mm.hkiaw.com New York International Offices: Sao Paulo caracas' Tel Aviv' Helsinki Tokyo Mexico City Pinr1a.lannim Teoresentamoffices Attorney -Client Privileged Communication MEMORANDUM TO: Southeast Overtown/Park West Community Redevelopment Agency Board of Directors FROM: William R. Bloom Suzanne P. Viana DATE: January 23, 2003 RE: Sale from The Southeast Overtown/Park West Community Redevelopment Agency of the City of Miami (the "CRA") to J.E.J. Properties, Inc. ("JEJ") of property known as parking lot P5 located at 936 N.W. 3rd Avenue, Miami, Florida 33136 (the "Property") HISTORY• The CRA issued an Invitation to Bid on November 11, 2002 for the sale of the Property (the "Invitation to Bid"). The City Clerk's Bid Security List indicates that JEJ's bid represents the only offer timely received as of the due date of December 11, 2002. Subsequently, the CRA requested that Holland & Knight LLP prepare a purchase agreement for the proposed sale transaction to JEJ consistent with the form of purchase agreement circulated with the Invitation to Bid. The purchase agreement was prepared and circulated to JEJ's counsel for review and comment. The negotiated form of purchase agreement is enclosed herewith for your review. O, - January 24, 2003 Page 2 COMMENTS: In connection with your review of the enclosed purchase agreement, we bring to your attention the issue of the existing, loans affecting the adjacent parcels of land (the "Adjacent Parcels") which are owned by JEJ and/or its principal Shirlene Ingraham ("Ingraham"). The purchase agreement contemplates that these adjacent parcels would be joined with the Property through a unity of title and replatting after closing. The purchase agreement further provides that the CRA will provide JEJ with financing for a portion of the purchase price and that JEJ will deliver a promissory note and mortgage to the CRA in connection therewith. Such mortgage would be a first mortgage on the Property and a second or third mortgage on the Adjacent Parcels. A portion of the Adjacent Parcels is presently encumbered by a first mortgage ("First Mortgage") in favor of an institutional lender in the amount of $43,000. Additionally, JEJ's counsel has advised that a $250,000 loan made to Ingraham by her father Demas Jackson ("Jackson") is currently outstanding. As disclosed in the purchase agreement, JEJ's counsel has advised that Ingraham and Jackson did not document this loan, are unable to provide any evidence that the loan was made and have advised that the loan is due upon demand and that no payments have ever been made to Jackson. As further disclosed in the purchase agreement, Ingraham and Jackson intend to execute a promissory note and a mortgage (the "Second Mortgage") encumbering the Adjacent Parcels prior to closing on the Property. Please do not hesitate to contact us with any questions or comments. MIA #1198590 v1 •► '. .. . . in S-2 • WARD ROOMING HOUSE SEOPW/ORA f 'u..J .. Lot 46 Cleomie Bloomfield 43.44% CRA1 3.$9%a Hattie Mae Alburv. dec 1 Joyce Keys 1 Victoria Ward. deceased Mabel Daniels. dec. 9.77% Estate A ministration* Louis Davis Jennie Jefferson Charles Davis Marguerite Peebles Dennis Davis Cleo Albury, Jr. Constance Jennings Rodney Albury Cleora Rawls Arthur Green Gladys Mitchell Emma Lou Ward 6.66% 1 CRA Cleo Alburv, Jr. 3.89% 1 CRA 8. I664% Estate Administration* Louis Davis Jennie Jefferson Charles Davis Marguerite Peebles Dennis Davis *Estate Administration needs to be processed with Probate Court; then heirs need to sign Quit -Claim deeds to CRA. Money is held in escrow to pay for the Quitclaim Deeds based upon $120.42 of each percentage interest in the property. There is no agreement with beneficiaries to accept payment for the Quitclaim Deed. **Based upon our investigation we have not been able to determine the heirs of Elmo Ward. 3.89% 1 Arthur Green 1 Estate Probated have requested deed Elmo Ward. dec. 4.26% Estate Administration* (Heirs Unknown)** Henry Albury 3.89% l CRA Rodney Albury 3.89% CRA Cleora Rawls 3.8�% CRA Constance Jennings 3.89% 1 CRA a • W i Shadwick Ward. Jr. 16.16% I Mabel Daniels. dec. 16.16% r 1 Estate Administration* Louis Davis Jennie Jefferson Charles Davis Marguerite Peebles Dennis Davis Cleo Albury, Jr. Constance Jennings Rodney Albury Cleora Rawls Arthur Green Gladvs Mitchell Jean Gr+n, dec. Victor Albu 3.7% 3.7% Arthur Green CRA AA Maryerite Davis, dec. 16.16 Estate Administration* Louis Davis Jennie Jefferson Charles Davis Marguerite Peebles Dennis Davis .l Elmo Ward. dec. 3.7%3.7% Estate Administration nistration* (Heirs Unknown) Cleo Albury I Henry Albury Rodney Albury Contance Albury 3.7% + 3.7% 3.7% 3.� Cleora Albury 1 3�7% CRA CRA CRA CRA *Estate Administration needs to be processed with Probate Court; then heirs need to sign Quit -Claim deeds to CRA. Money is held in escrow to pay for the Quitclaim Deeds based upon $120.42 of each percentage interest in the property. There is no agreement with beneficiaries to accept payment for the Quitclaim Deed. **Based upon our investigation we have not been able to determine the heirs of Elmo Ward. Cleomie Bloomfield. dec. 17.0% CRA Lottie Ward. dec. Estate Administration* Louis Davis Jennie Jefferson Charles Davis Marguerite Peebles Dennis Davis Cleo Albury, Jr. Constance Jennings Rodney Albury Cleora Rawls Arthur Green Gladys Mitchell 9 S-2 ST. JOHN'S SETTLEMENT AGREEMENT Support documentation to be provided at the CRA Board meeting - SEOPW/CRA OMNI/CRA --Ou • S-2 0 P7 LEASE AGREEMENT STATUS Additional supporting documentation to be provided at the CRA Board meeting O... LEASE THIS LEASE is made and entered into as of this day of , 2003, by and between SOUTHEAST OVERTOWN/PARK WEST COMMUNITY REDEVELOPMENT AGENCY, a body corporate and politic of the State of Florida ("Landlord") and BLACK ARCHIVES, HISTORY AND RESEARCH FOUNDATION OF SOUTH FLORIDA, INC., a Florida not -for -profit corporation ("Tenant") RECITALS A. Landlord is the owner of that certain real property located in the City of Miami, Miami -Dade County, Florida which is more particularly described on Exhibit "A" attached hereto and made a part hereof (the "Leased Premises"). B. Landlord desires to lease the Leased Premises to Tenant and Tenant desires to lease the Leased Premises from Landlord on the terms and conditions hereinafter provided. NOW, THEREFORE, in consideration of the mutual covenants and promises of the parties, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree that the foregoing recitals are true and correct and incorporated herein by this reference, and further agree as follows: ARTICLE 1 - DEMISE OF LEASED PREMISES Section 1.1 Leased Premises. Landlord, for and in consideration of the rents, covenants and conditions herein set forth, does hereby lease the Leased Premises to SEOPW/CItA O/C Tenant, and Tenant does hereby lease the Leased Premises from Landlord, subject to the terms, conditions and provisions hereof. ARTICLE 2 - LEASE TERM Section 2.1 Lease Term. The term of this Lease shall be ninety-nine (99) years (the "Term"), commencing on the date hereof (the "Commencement Date") and terminating on Section 2.2 End of Term. Upon the termination of this Lease, whether by expiration, default, eviction, or otherwise, the Leased Premises, shall, be free and clear of all claims to or against them by Tenant or any third person claiming by through or under Tenant, and free and clear of all liens, security interests, and encumbrances arising by, through or under Tenant. At the expiration or earlier termination of this Lease, all alterations, improvements, additions and utility installations constructed on the Leased Premises, shall become the property of Landlord and remain upon and be surrendered with the Leased Premises on the date of termination or expiration of this Lease. ARTICLE 3 - RENT, TAXES AND UTILITIES Section 3.1 Rent. Commencing on the Commencement Date, Tenant agrees to pay Landlord, for the use and occupancy of the Leased Premises, base annual rent ("Base Annual Rent") in the amount of One and No/100 Dollars ($1.00) per year, which rent shall be payable on of each year, together with sales tax, 01 IM / CRA 2 SEOPW/CRA 0 c ' if any, due in connection therewith. All such Base Annual Rent shall be paid to Landlord in legal tender of the United States at the address to which notices to Landlord are to be given or to such other party or to such other address as Landlord shall designate from time to time by written notice to Tenant. Section 3.2 Taxes. From and after the Commencement Date, Tenant shall pay or cause to be paid as additional rent hereunder, all real and personal property taxes levied on or assessed against the Leased Premises, if any. Tenant shall make all such payments directly to the appropriate charging or taxing authority before delinquency and before any fine, interest, or penalty shall become due or be imposed by operation of law for their nonpayment. In the event Landlord receives any tax bills with respect to the Leased Premises, Landlord shall promptly forward same to Tenant for payment. Section 3.3 Utilities. From and after the Commencement Date, Tenant shall pay, when due and payable, all charges for water, heat, gas, electricity, cable, trash disposal, sewers and any and all other utilities used upon the Leased Premises throughout the Term. Tenant shall be responsible for all utility deposits, if any. ARTICLE 4 - - USE OF PREMISES Section 4.1 Permitted Use. Tenant shall not be permitted to use the Leased Premises except for parking and the construction of improvements associated with the Lyric Theatre project. 3 SEOPW/CRA, . OMNI/CRA _ PAGO.t --' v Section 4.2 Hazardous Materials. Section 4.2.1 Definitions. "Hazardous Materials" shall mean any material, substance or waste that is or has the characteristic of being hazardous, toxic, ignitable, reactive or corrosive, including, without limitation, petroleum, PCBs, asbestos, materials known to cause cancer or reproductive problems and those materials, substances and/or wastes, including infectious waste, medical waste, and potentially infectious biomedical waste, which are or later become regulated by any local governmental authority or the United States Government, including, but not limited to, substances defined as "hazardous substances," "hazardous materials," "toxic substances" or "hazardous wastes" in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. §9601; the Hazardous Materials Transportation Act, 49 U.S.C. §1801, the Resource Conservation and Recovery Act, 42 U.S.C. §6901; all corresponding and related local statutes, ordinances and regulations, including without limitation any dealing with underground storage tanks; and in any other environmental law, regulation or ordinance now existing or hereinafter enacted (collectively, "Hazardous Materials Laws") Section 4.2.2 Use of Premises by Tenant. Tenant hereby agrees that Tenant and Tenant's officers, directors, employees, representatives, agents, contractors, subcontractors, successors, assigns, licensees, sub -licensees, concessionaires, invitees and any other occupants of the Leased Premises (for 4 SE®PW/ CRA()MNi / CRA purpose of this Section, referred to collectively herein as "Tenant Representatives") shall not use, generate, manufacture, refine, produce, process, store or dispose of, on, under or about the Leased Premises or transport to or from the Leased Premises in the future for the purpose of generating, manufacturing, refining, producing, storing, handling, transferring, processing or transporting Hazardous Materials, except in compliance with all applicable Hazardous Materials Laws. Furthermore, Tenant shall, at its own expense, procure, maintain in effect and comply with all conditions of any and all permits, licenses and other governmental and regulatory approvals required for the storage or use by Tenant or any of Tenant's Representatives of any Hazardous Materials on the Leased Premises, including without limitation, discharge of (appropriately treated) materials or wastes into or through any sanitary sewer serving the Leased Premises. Section 4.2.3 Notice of Hazardous Materials Matters. Each party hereto (for purposes of this Section, "Notifying Party") shall immediately notify the other party (the "Notice Recipient") in writing of. (a) any enforcement, clean-up, removal or other governmental or regulatory action instituted, contemplated or threatened concerning the Leased Premises pursuant to any Hazardous Materials Laws; (b) any claim made or threatened by any person against the Notifying Party or the Leased Premises relating to damage contribution, cost recovery, compensation, loss or injury resulting from or claimed to result from any Hazardous Materials on or about the Leased Premises; and (c) any reports made to any environmental agency arising out of or in connection with any Hazardous Materials 5 SEOPW/CRA OWU/CRA in or removed from the Leased Premises including any complaints, notices, warnings or asserted violations in connection therewith, all upon receipt by the Notifying Party of actual knowledge of any of the foregoing matters. Notifying Party shall also supply to Notice Recipient as promptly as possible, and in any event within five (5) business days after Notifying Party first receives or sends the same, copies of all claims, reports, complaints, notices, warnings or asserted violations relating in any way to the Leased Premises or Tenant's use thereof. Section 4.2.4 Indemnification by Tenant. Tenant shall indemnify, defend (by counsel reasonably acceptable to Landlord), protect, and hold Landlord, and each of Landlord's partners (if applicable), employees, agents, attorneys, shareholders, officers, directors, trustees, successors and assigns (collectively, Landlord together with all of such persons and entities are hereinafter referred to as the "Indemnified Parties"), free and harmless from and against any and all claims, actions, causes of action, liabilities, penalties, forfeitures, damages, losses or expenses (including, without limitation, attorneys' fees and costs through litigation and all appeals) or death of or injury to any person or damage to any property whatsoever, arising from or caused in whole or in part, directly or indirectly by (a) any contamination resulting from any act or omission of Tenant or Tenant's Representatives (b) Tenant's failure to comply with any Hazardous Materials Laws with respect to the Leased Premises, or (c) a breach of any covenant, warranty or representation of Tenant under this Section. Tenant's obligations hereunder shall include, without limitation, and whether foreseeable or unforeseeable, all costs of O. OM. ,. . ,, any required or necessary repair, clean-up or detoxification or decontamination of the Leased Premises, and the preparation and implementation of any closure, remedial action or other required plans in connection therewith. For purposes of the indemnity provisions hereof, any acts or omissions of Tenant, or Tenant Representatives (whether or not they are negligent, intentional, willful or unlawful) shall be strictly attributable to Tenant. The foregoing indemnity shall survive the expiration or sooner termination of this Lease and shall extend to conditions attributable to Tenant and Tenant Representatives prior to the commencement of the Lease Term. ARTICLE 5 - MAINTENANCE Section 5.1 Tenant shall be solely responsible for all aspects of the management, operation, maintenance and repair of the Leased Premises. At all times Tenant shall maintain the Leased Premises in good condition, including, without limitation all parking areas and portions of the buildings and improvements constructed thereon by Tenant. At all times Tenant shall maintain the Leased Premises in compliance with all applicable city, county, state and federal laws. Section 5.2 Tenant shall pay all costs and expenses of every kind and nature in connection with the management, operation, maintenance and repair of the Leased Premises, including, without limitation, the following: 7 SE®PW/.CRA ®XM/CRA Section 5.2.1 All costs and expenses associated with constructing any buildings and improvements on the Leased Premises Section 5.2.2 All costs and expenses associated with the maintenance, repair and replacement, refurbishment and redecorating of any and all portions of the buildings and improvements constructed by Tenant on the Leased Premises including, without limitation, all electrical equipment, plumbing, heating, ventilating, air conditioning, sprinkler, life safety, security, fire alarm and other systems, equipment, furnishings and fixtures (interior and exterior, structural and nonstructural, foreseen and unforeseen) which may be constructed by Tenant on the Leased Premises. Section 5.2.3 All costs and expenses associated with complying all applicable rules and regulations of zoning authorities and all other authorities having jurisdiction over the Leased Premises, including without limitation, compliance with the Americans With Disabilities Act, Environmental Laws, and the Florida Accessibility Code. ARTICLE 6 - RIGHT OF ENTRY Section 6.1 Right of Entry. Landlord, or any of his agents, shall have the right, on not less than 24 hours advanced notice (except in the case of an emergency when no notice shall be required), to enter the Leased Premises during all reasonable hours to examine the same. ARTICLE 7 - GOVERNMENTAL REGULATIONS Section 7.1 Governmental Regulations. Tenant agrees to fully comply with all municipal, county, state and federal laws, ordinances, rules, regulations, standards and guidelines of any governmental entity, agency or authority having jurisdiction over the Leased Premises or Tenant's use of the Leased Premises, including without limitation,. the Americans with Disabilities Act. Tenant shall pay all costs and expenses, and shall reimburse, indemnify, and hold harmless Landlord for and against any and all costs and expenses incurred by Landlord (including, without limitation, any and all fines, civil penalties, damages, and attorneys' fees and expenses) in connection with any non-compliance with any applicable laws, including without limitation, in connection with any alterations, modifications, renovations, or accommodations required to be made to the Leased Premises or the buildings pursuant to the Americans with Disabilities Act or the Florida Accessibility Code, as amended from time to time, and any regulations now or hereafter promulgated pursuant thereto (or any violation of the aforesaid law and regulations), as a result of the use or occupancy of the Leased Premises by Tenant, its employees, agents and invitees. ARTICLE 8 - LIEN Section 8.1 Tenant agrees to pay, all liens of contractors, subcontractors, mechanics, laborers, materialmen, and other items of like character, and agrees not to permit any mechanic's liens or other liens to be placed upon the Leased Premises O,M , or the buildings, and indemnify Landlord against all expenses, costs and charges of whatever nature, including bond premiums for release of liens and attorneys' fees and costs reasonably incurred by Landlord as a result of the filing of any such liens, judgments, or encumbrances caused or suffered by Tenant. If any such lien is made or filed, Tenant shall bond against or discharge the same within thirty (30) days after the same has been made or filed. In the event any such lien is filed with respect to the Leased Premises, then, in addition to any other rights or remedies of Landlord, Landlord, may, but shall not be obligated to, discharge same. The expenses, costs and charges above referred to shall be considered as rent due and shall be included in any lien for rent. Section 8.2 The Tenant shall not have any authority to create any liens for labor or material in the Landlord's interest in the Leased Premises and all persons contracting with the Tenant for the demolition or removal of any facilities or other improvements or for the erection, installation, alteration, or repair of any facilities or other improvements on or about the Leased Premises, and all materialmen, contractors, mechanics, and laborers, are hereby charged with notice that they must look only to the Tenant and to the Tenant's interest in the Leased Premises to secure the payment of any bill for work done or material furnished at the request or instruction of Tenant. 10 SE®PW/CRA ®loll/CRA e ARTICLE 9 - INDEMNIFICATION Section 9.1 Tenant, at all times, will defend, indemnify and keep harmless Landlord from all losses, damages, liabilities and expenses, including reasonable attorneys' fees and costs (including fees on appeal and in bankruptcy or insolvency proceedings), which may arise or be claimed against Landlord and be in favor of any persons, firms or corporations, for any injuries or damages to the person or property of any persons, firms or corporations, consequent upon or arising from the use or occupancy of the Leased Premises by Tenant, or consequent upon or arising from any acts, omissions, neglect or fault of Tenant, its agents, servants, employees, licensees, visitors, customers, patrons or invitees, or consequent upon or arising from Tenant's failure to comply with any laws, statutes, ordinances, codes or regulations as herein provided. Landlord shall not be liable to Tenant for any damages, losses or injuries to the persons or property of Tenant which may be caused by the acts, neglect, omissions or faults of any persons, firms or corporations, except when such injury, loss or damage results from the gross negligence or intentional misconduct of Landlord, its agents or employees. Tenant will defend, indemnify and hold harmless Landlord from all damages, liabilities, losses, injuries, or expenses, including reasonable attorneys' fees and costs (including fees on appeal and in bankruptcy or insolvency proceedings), which may arise or be claimed against Landlord and in favor of any persons, firms or corporations, for any injuries or damages to the person or property of any persons, firms, or corporations, where said injuries or damages arose about or upon the Leased Premises. All personal 11 SEOPW/CIL ONM/CRA property placed or moved into the Leased Premises shall be at the risk of the Tenant or the owner thereof, and Landlord shall not be liable to Tenant for any damage to said personal property. Section 9.2 If Landlord is made a party to any litigation commenced against Tenant, then Tenant shall protect and hold Landlord harmless from and against and shall pay all costs, expenses and reasonable attorneys' fees incurred or paid by Landlord in connection with such litigation (including fees on appeal and in bankruptcy or insolvency proceedings). ARTICLE 10 - SURRENDER Section 10.1 Tenant agrees to surrender to Landlord, at the end of the Term and/or upon any cancellation of this Lease, the Leased Premises in as good condition as the Leased Premises were at the beginning of the Term, ordinary wear and tear excepted. Tenant agrees that if Tenant does not surrender the Leased Premises to Landlord at the end of the Term then Tenant will pay to Landlord all damages and expenses (including, without limitation, reasonable attorneys' fees and costs) that Landlord may suffer on account of Tenant's failure to so surrender to Landlord possession of the Leased Premises, and will indemnify and save Landlord harmless from and against all claims made by any persons, firms or entities, including but not limited to the succeeding tenant of the Leased Premises, against Landlord on account of delay of Landlord in delivering possession of the Leased Premises to the succeeding tenant so far as such delay is occasioned by failure of 12 SEOPW/CRA_ ®MNI/CRA Tenant to so surrender the Leased Premises in accordance herewith or otherwise. In addition to and without limiting the foregoing, in the event of holding over by Tenant after expiration or termination of this Lease without the written consent of Landlord, Tenant shall pay $10,000 per month as rent for the entire holdover period. Section 10.2 No receipt of money by Landlord from Tenant after termination of this Lease or the service of any notice of commencement of any suit or final judgment for possession shall reinstate, continue or extend the term of this Lease or affect any such notice, demand, suit or judgment. Section 10.3 No act or thing done by Landlord or its agents during the Term shall be deemed an acceptance of a surrender of the Leased Premises and no agreement to accept a surrender of the Leased Premises shall be valid unless it be made in writing and subscribed by a duly authorized officer or agent of Landlord. ARTICLE 11 - INSURANCE Section 11.1 At Tenant's sole cost and expense, the Tenant shall procure and maintain throughout the Term (and any extensions thereof) for the protection of Landlord and Tenant, as their interests may appear, Commercial General Liability insurance on a coverage form at least as broad as the most recent edition of the standard Commercial General Liability Coverage Form (CG0001) published by ISO Commercial Risk Services, Inc., naming the Landlord, using an endorsement form at least as broad as the most recent edition of Additional Insured -Managers or 13 ONM/CRA SEOPW/CRA' .� Lessors of Premises Endorsement Form (CG2011) as published by ISO Commercial Risk Services, Inc. The limits of such insurance shall be no less than: Five Million Dollars ($5,000,000) each occurrence; Five Million Dollars ($5,000,000) general aggregate; Five Million Dollars ($5,000,000) products/completed operations aggregate; Five Million Dollars ($5,000,000) personal injury and advertising injury; Fifty Thousand Dollars ($50,000) fire damage (any one fire); and Five Thousand Dollars ($5,000) medical expense .(any one person); covering bodily injury, personal injury and property damage liability occasioned by or arising out of or in connection with the use, operation and occupancy of the Leased Premises. Such Commercial General Liability insurance policy shall cover events that occur during the policy period regardless of when the claim is made. The insurance shall be primary insurance to any other insurance that may be available to Landlord. Any other insurance available to Landlord shall be non-contributing with and excess to the foregoing insurance. Section 11.2 At Tenant's sole cost and expense, Tenant shall also maintain during the Term (and any extensions thereof) for the protection of Landlord and Tenant, as their interests may appear, the following insurance having at least the following limits: (i) workers' compensation, as required by state law; (ii) employer's liability insurance - bodily injury, $250,000 each accident; bodily injury by disease, $250,000 each employee and $250,000 policy limit; and (iii) fire and extended coverage property insurance insuring Tenant's interest in the improvements and betterments to the Leased Premises against direct risk of loss, providing for limits 14 SEOPW/CRA' ®N/CRA 1 of coverage equal to 100% of the current replacement cost value of such property, on coverage forms at least as broad as the most recent editions of the standard Building and Personal Property Coverage Form (CP0010), Boiler and Machinery Coverage Form (BM0025), Causes of Loss Special Form (CP1030), and Sprinkler Leakage -Earthquake Extension (CP1039), all as published by ISO Commercial Risk Services, Inc. Section 11.3 Prior to the Commencement Date, Tenant shall provide Landlord with the original policies evidencing the required insurance coverage, together with a copy of the actual additional insured endorsement issued onto the Commercial General Liability policy, naming the Landlord as an additional insured. The carriers providing the insurance coverage shall be obligated to provide the Landlord with thirty days' advance written notice of any cancellation, material change or non -renewal of the insurance coverage, and the certificates evidencing such insurance shall so provide. Tenant shall provide renewal certificates to Landlord at least thirty (30) days prior to expiration of such policies. All insurance required hereunder shall be provided by companies that have a general policy holder's rating of not less than "A" and a financial rating of not less than Class "X" in the most current edition of Best's Insurance Reports, and shall otherwise be in a form acceptable to Landlord. Section 11.4 Notwithstanding anything to the contrary herein, to the extent of insurance proceeds received by it with respect to any loss, Landlord and Tenant 15 SEOPW/CT ®IViNI / CPA f'--�`\ hereby waive any right of recovery against the other for any loss or damage sustained by it with respect to the buildings, the Leased Premises, any of their contents thereof, or operations therein, whether or not such loss or damage is caused by the fault or negligence of the other party. Tenant shall obtain from its insurance carriers under policies of insurance relating to the buildings or the Leased Premises and maintained by it at any time during the Term a waiver of all rights of subrogation which the insurer of Tenant has or may have against the Landlord, and Tenant shall indemnify and hold harmless the Landlord from and against any claim, loss or expense, including, without limitation, reasonable attorneys' fees, resulting from the failure of Tenant to obtain such waiver. Section 11.5 If, because of Tenant's failure to comply with any of the foregoing provisions, Landlord is deemed a co-insurer by its insurance carriers, then any losses, expenses or damages which Landlord shall incur by reason thereof, including, without limitation, attorneys' fees and costs, shall be borne by Tenant, shall be due and payable to Landlord on demand, shall bear interest at the maximum legal rate permitted by law from the date of demand until paid in full, and shall be considered additional rent hereunder. Tenant acknowledges that Landlord makes no representation that the limits of coverage which Tenant is required to maintain hereunder are adequate to protect Tenant, and Tenant agrees, at Tenant's expense, to obtain and maintain such insurance, with such coverage limits, as Tenant deems adequate to fully cover the types of losses set forth in this Article 11, as well as such additional insurance as Tenant deems advisable. If 16 SEOPW/CRA OMNI/CRA Tenant fails to procure and maintain the insurance required hereunder, Landlord may, but shall not be obligated to, procure such insurance at Tenant's expense and Tenant shall reimburse Landlord on demand for all costs, expenses and premiums, including, without limitation, attorneys' fees, incurred by it in connection therewith, together with interest thereon at the maximum rate permitted by law, from the date of demand until paid in full, such amounts to be deemed additional rent hereunder. ARTICLE 12 - FIRE OR OTHER CASUALTY Section 12.1 Tenant shall have the option of terminating this Lease by written notice to Landlord within thirty (30) days after the date of such damage or commence and proceed with reasonable diligence to restore the buildings to substantially the same condition in which it was immediately prior to the happening of the casualty. If Tenant elect not to restore the Leased Premises, the insurance proceeds shall be paid to Landlord. Section 12.2 All costs and expenses for reconstruction of the buildings and the Leased Premises shall be borne by Tenant, and Landlord shall make the insurance proceeds available for reconstruction. Section 12.3 If the Leased Premises or any other portion of the buildings are damaged by fire or other casualty, the rent hereunder shall not be diminished during the repair of such damage and Tenant shall be liable for the cost of the 17 SEOPW/CIS OMNI/C repair and restoration of the buildings to the extent such cost and expense is not covered by Tenant's insurance proceeds. ARTICLE 13 - QUIET POSSESSION Section 13.1 Upon payment by Tenant of the rents herein provided, and upon the observance and performance of all terms, provisions, covenants and conditions on Tenant's part to be observed and performed, Tenant shall, subject to all of the terms, provisions, covenants and conditions of this Lease, peaceably and quietly hold and enjoy the Leased Premises for the Term against all persons claiming by, through or under Landlord. ARTICLE 14 - NET LEASE Section 14.1 This Lease is what is commonly called a "Net, Net, Net Lease" or "Triple -Net Lease", it being understood that Landlord shall receive the rent, and additional rent, set forth in this Lease free and clear of any and all other impositions, taxes, liens, charges or expenses of any nature whatsoever, and without any deductions therefrom, in connection with the ownership of the Leased Premises and Tenant's use, maintenance and operation of the Leased Premises and the buildings, except for State and/or Federal income taxes now or hereafter imposed upon the payments received by Landlord. ARTICLE 15 - RADON GAS Section 15.1 Tenant is hereby advised that 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. ARTICLE 16 - BROKER Section 16.1 Tenant represents and warrants to Landlord that no broker rendered services in connection with this transaction. Tenant shall defend, indemnify and hold Landlord harmless from and against any damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys' fees and disbursements) arising from or in connection with any claims for fees or compensation made by any other broker or finder in connection with this transaction. ARTICLE 17 - RELATIONSHIP OF PARTIES Section 17.1 Nothing contained in this Lease shall be deemed or construed by the parties hereto, nor by any third party, as creating the relationship of -principal and agent, or of partnership, or of joint venture, between the parties hereto, it being understood and agreed that neither the method of computation of rent, nor any other provision contained herein, nor any acts of the parties herein, shall be deemed to create any relationship between the parties hereto other than the relationship of Landlord and Tenant. ARTICLE 18 - CONDEMNATION Section 18.1 Interest of Parties on Condemnation. If the Leased Premises or any part thereof shall be taken by condemnation as a result of any action or proceeding in eminent domain, or shall be transferred in lieu of condemnation to any authority entitled to exercise the power of eminent domain, the interests of Landlord and Tenant in the award or consideration for such transfer, and the allocation of the award and the other effects of the taking or transfer upon this Lease, shall be as provided by this Section. Section 18.2 Total Taking = Termination. If the entire Leased Premises is taken or so transferred, this Lease and all right, title and interest hereunder shall cease on the date title to such land so taken or transferred vests in the condemning authority, Section 18.3 Partial Taking - Termination. In the event of the taking or transfer of only a part of the Leased Premises, leaving the remainder of the Leased Premises in such location, or in such form, shape or reduced size as to be not effectively and practicably usable for the permitted uses described in Article 4 hereof, as determined by Tenant in its sole discretion, then this Lease and all right, 1 O 0.1�M/C ; title and interest thereunder will be terminated on the date title to such land so taken or transferred vests in the condemning authority. Section 18.4 Partial Taking - Continuation. In the event of a taking or transfer of only a part of the Leased Premises leaving the remainder thereof in such location and in such form, shape or size as to be used effectively and practicably in the sole discretion of Tenant, for the permitted uses described in Article 4 hereof, this Lease shall terminate as to the portion of the Leased Premises so taken or transferred as of the date title to such portion vests in the condemning authority, but shall continue in full force and effect as to the portion of the Leased Premises not so taken or transferred. Section 18.5 Allocation of Award. In the event of any such taking by the exercise of the power of eminent domain, Landlord shall be entitled to damages in the amount of the fair market value of the Leased Premises taken by the condemning authority, and Tenant shall be entitled to make a separate claim only for moving expenses and the value of its personal property so taken and Tenant shall have no claim against Landlord for the value of an unexpired term of the Lease. In the event that the court having jurisdiction of the eminent domain proceedings shall fail to make separate awards and judgments with respect to the respective interests of Landlord and Tenant, and such amounts cannot be agreed upon between the parties hereto, or there is a dispute, then such matters shall be 21 SEOPW/CRA 1��111�en i submitted to arbitration to be conducted in the Miami -Dade County, Florida, in accordance with the then existing rules of the American Arbitration Association. ARTICLE 19 - ASSIGNMENT AND SUBLEASE Section 19.1 Tenant may not assign, transfer, sell or otherwise convey this Lease or any interest of Tenant herein, in whole or in part, or sublet the whole or any part of the Leased Premises or permit the Leased Premises or any part thereof to be used or occupied by others, without the written consent of Landlord. Any purported assignment or sublease shall be null and void. ARTICLE 20 - ADDITIONS, ALTERATIONS AND REMOVALS Section 20.1 Tenant shall not make any structural alterations or improvements to the Leased Premises without the prior written consent of Landlord, which consent shall not be unreasonably withheld, provided, however, Landlord's approval shall not be required in connection with the improvements shown on Exhibit "B" attached hereto and made a part hereof (the "Site Plan"). Any alterations or construction of improvements performed by Tenant hereunder shall be performed in a good, workmanlike manner and shall be completed free of liens. In the event that a lien shall be filed against the Leased Premises in connection with the construction of such improvements or alterations, Tenant shall within thirty (30) days of the filing thereof cause such lien to be removed and released or shall have same transferred to bond. In the event that Tenant shall fail to cause the removal or transfer of such lien within such thirty (30) day period, Landlord shall, but shall not be obligated to, 22 SEU.VW/CRA OMNI/ release or transfer such lien and Tenant shall upon demand pay to Landlord all sums paid by Landlord in connection therewith. ARTICLE 21 - USE OF PARKING LOT Tenant covenants and agrees to make any parking lot which may be constructed on the Leased Premises available for use by guests and invitees of local business in the area and the general public when not required in connection with the operation of the Lyric Theater at market rates. ARTICLE 22 - DEFAULTS AND REMEDIES Section 22.1 Defaults. The occurrence of any of the following events shall constitute an "Event of Default": Section 22.1.1 Attachment or Other Lew. The subjection of any right or interest of Tenant in the Leased Premises, to attachment, execution or other levy, or to seizure under legal process, if not released within thirty (30) days. Section 22.1.2 Appointment of Receiver. The appointment of a receiver to take possession of the Leased Premises, or of Tenant's interest in the leasehold estate or of Tenant's operations on the Leased Premises, for any reason, which appointment is not vacated within sixty (60) days. Section 22.1.3 Insolvency: Bankruptcy. An assignment by Tenant for the benefit of creditors, or the filing of a voluntary petition by Tenant or entry by a OM_ AQ ...- court of competent jurisdiction of a decree or order granting relief in an involuntary case against Tenant, under any law for the purpose of adjudicating Tenant a bankrupt; or for extending time for payment, adjustment or satisfaction of Tenant's liabilities; or reorganization, dissolution, or arrangement on account of, or to prevent bankruptcy or insolvency; unless, in case of such that are involuntary on Tenant's part, such assignment(s), petitions or other proceedings, and all consequent orders, adjudications, custodies and supervisions are dismissed, vacated or terminated within sixty (60) days after the assignment,, filing or other initial event. Section 22.1.4 Default in Payment of Performance Under this Lease. Failure of Tenant to pay any installment of Base Annual Rent or any impositions or other monetary obligations of any nature whatsoever required to be paid by Tenant under this Lease when due and payable; or failure of Tenant to observe or perform any of its other covenants, conditions or agreements under this Lease which is not cured within thirty (30) days after written notice; or the breach of any warranties or representations of Tenant under this Lease which is not cured within thirty (30) days after written notice. Section 22.1.5 Closure of the Lyric Theater. If the Lyric Theater ceases to operate for a period of one (1) year, except for renovation or reconstruction. Section 22.2 Remedies. Upon the occurrence of an Event of Default Landlord may pursue all remedies available at law or in equity. 24 SE®PW/CRA ` _d � OMNI/CR 0 ARTICLE 23 - LYRIC THEATER DEVELOPMENT Section 23.1 Tenant has represented to Landlord that Tenant intends to develop the Leased Premises substantially in accordance with the Site Plan in connection with the rehabilitation and expansion of the Lyric Theater. If Tenant has not developed the Leased Premises substantially in accordance with the Site Plan, subject to modifications which have been approved by Landlord, which approval shall not be unreasonably withheld, within six (6) years from the date hereof, Landlord at any time thereafter may terminate this Lease upon thirty (30) days prior written notice to Tenant. ARTICLE 24 - GENERAL PROVISIONS Section 24.1 Tenant's Authority. Tenant and each individual signing this Lease on behalf of Tenant represents and warrants that they are duly authorized to sign on behalf of and to bind Tenant and that this Tenant is a duly authorized obligation of Tenant. Upon the request of Tenant, Tenant shall provide to Landlord such documentation evidencing such authority. Section 24.2 Conditions and Covenants. All of the provisions of this Lease shall be deemed as running with the land, and constructed to be "conditions" as well as "covenants" as though the words specifically expressing or imparting covenants and conditions were used in each separate provision. 25 SEOPW/CRA OMNI/CRA • Section 24.3 Survival of Indemnities. All representations, warranties and indemnities of Tenant under this Lease shall survive the expiration or sooner termination of this Lease. Section 24.4 No Waiver of Breach. No failure by either Landlord or Tenant to insist upon the strict performance by the other of any covenant, agreement, term or condition of this Lease, or to exercise any right or remedy consequent upon a breach thereof, shall constitute a waiver of any such breach or of such, covenant, agreement, term or condition. No waiver of any breach shall affect or alter this Lease, but each and every covenant, condition, agreement and term of this Lease shall continue in full force and effect with respect to any other then existing or subsequent breach. Section 24.5 Notices. Unless otherwise specifically provided in this Lease or by law, any and all notices or other communications required or permitted by this Lease or by law to be served on, given to, or delivered to any party to this Lease shall he writing and shall be deemed duly served, given, delivered and received when personally delivered (including confirmed overnight delivery service to the party to whom it is directed), or in lieu of such personal delivery, when three (3) business days have elapsed following deposit thereof in the United States mail, first-class postage prepaid, certified, return receipt requested, addressed to: LANDLORD: Southeast Overtown/Park West Community Redevelopment Agency of the City of Miami 300 Biscayne Blvd., Suite 430 26 SE DPW/CRA Niue, 2OW2. Miami, Florida 33131 Attn: Executive Director Fax: WITH A COPY TO: Holland & Knight, LLP 701 Brickell Avenue, Suite 3000 Miami, Florida 33131 . Attn: William R. Bloom, Esq. Fax: 305-789-7799 and WITH A COPY TO: Alejandro Vilarello, Esq. City Attorney 444 S.W. 2"d Avenue, Suite 945 Miami, Florida 33130-1910 Fax: 305-416-1801 TENANT: Black Archives, History and Research Foundation of South Florida, Inc. Attn: Fax: WITH A COPY TO: Bilzin Sumberg Dunn Baena Price & Axelrod LLP 2500 First Union Financial Center 200 South Biscayne Boulevard Miami, Florida 33131-2336 Attn: Albert E. Dotson, Jr., Esq. Fax: 305-374-7583 Either party may change its address for the purpose of this paragraph by giving written notice of such change to the other party in the manner provided in its paragraph. 27 '`, EOPWXRA • Section 24.6 Captions. Captions in this Lease are inserted for convenience of reference only and do not define, describe or limit the scope or the intent of this Ground Lease or any of the terms thereof. Section 24.7 Entire Agreement. This Lease contains .the entire agreement between the parties regarding the subject matter hereof. Any oral or written representations, agreements, understandings and/or, statements not incorporated herein shall be of no force and effect. Section 24.8 Waivers and Amendments. No modification, waiver, amendment, discharge or change of this Lease shall be valid unless the same is in writing and signed by the party against which the enforcement of such modification, waiver, amendment, discharge or change is or may be sought. Section 24.9 Memorandum of Lease. Tenant and Landlord will promptly execute duplicate originals of a memorandum of lease in the form attached hereto as Exhibit "C", in recordable form that will constitute a short form of this Lease. Section 24.10 Attorney's Fees. The prevailing party shall be entitled to recover, in addition to all other items of recovery permitted by law, reasonable attorneys' fees and costs incurred through litigation, bankruptcy proceedings and all appeals and post judgment proceedings. Section 24.11 Time. Time is of the essence of each obligation of each party hereunder. 28 SE®PW/CRA ®MNI/C . = Section 24.12 Governing Law. This Lease shall be construed and enforced in accordance with the laws of the State of Florida. Section 24.13 Binding Effect. Subject to any provision of this Lease that may prohibit or curtail assignment of any rights hereunder, this Lease shall bind and inure to the benefit of the respective heirs, assigns, personal representatives, and successors of the parties hereto. Section 24.14 Severability. If any term, provision, covenant or condition of this Lease is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions shall remain in full force and effect and shall in no way be affected, impaired or invalidated. Section 24.15 Counterparts. This Lease may be executed in one or more Counterparts, each of which shall be deemed an original and when taken together will constitute one instrument. IN WITNESS WHEREOF, this Lease has been executed on the respective dates set forth below. WITNESSES: LANDLORD: SOUTHEAST OVERTOWN/PARK WEST COMMUNITY REDEVELOPMENT AGENCY, a body corporate and politic of the State of Florida Print Name: By: Name: Frank Rollason Its: Executive Director 29 SEOPW/CRA ®MNI/C1tA Print Name: ATTESTATION APPROVED FOR LEGAL SUFFICIENCY Percilla A. Thompson, Clerk of the Board Print Name: Print Name: William R. Bloom, Esq. Holland & Knight LLP, Special Counsel TENANT: THE BLACK ARCHIVES, HISTORY AND RESEARCH FOUNDATION OF SOUTH FLORIDA, INC., a not -for -profit corporation I' M Name: Its: Executive Director O/C STATE OF FLORIDA ) ) SS COUNTY OF MIAM-DADE ) The foregoing instrument was acknowledged before me this day of , 2003 by Frank Rollason, as Executive Director of the Southeast Overtown/Park West Community Redevelopment Agency, a body corporate and politic of the State of Florida, on behalf of the Community Redevelopment Agency, who is personally known to me or who has produced as identification and who did/did not take an oath. Printed Name: Notary Public My Commission Expires: STATE OF FLORIDA ) ) SS COUNTY OF MIAMI-DADE ) The foregoing instrument was acknowledged before me this day of , 2003 by as Executive Director of The Black Archives, History and Research Foundation of South Florida, a not -for -profit corporation, on behalf of the corporation, who is personally known to me or who has produced as identification and who did/did not take an oath. MIA1 #1197826 v2 Printed Name: Notary Public My Commission Expires: 31 SEOPW/CRA �,. EXHIBIT "A" LEGAL DESCRIPTION OF LEASED PREMISES 32 SEOPW/CRA OAM//CRA EXHIBIT "B" SITE PLAN OF PROPOSED IMPROVEMENTS 33 SEOPW/CRA ®RRNI/CRA MIA1 #1197826 v2 EXHIBIT "C" MEMORANDUM OF LEASE FORM 34 SEOPW/CRA' ON4NI/CRA au--- ftv n e S-2 VECTOUR BUS BANKRUPTCY UPDATE SEOPW/CRA `� OMNI/CRA A