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HomeMy WebLinkAboutR-02-0382J-02-353 4/11/02 RESOLUTION NO. 02- 382 A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S), AMENDING THE PROPOSED INTERLOCAL AND LEASE AGREEMENT BETWEEN THE CITY OF MIAMI AND DOWNTOWN DEVELOPMENT AUTHORITY ("DDA") FOR DEVELOPMENT OF A CHARTER SCHOOL, TO BE LOCATED AT 305 NORTHWEST 3RD AVENUE, MIAMI, FLORIDA, APPROVED BY THE CITY COMMISSION ON DECEMBER 13, 2001, TO DELETE THE REQUIREMENT THAT THE DDA CAUSE THE SUBLESSEE TO PAY A PAYMENT IN LIEU OF TAX; FURTHER AUTHORIZING THE CITY MANAGER TO EXECUTE THE AGREEMENT, AS AMENDED, IN SUBSTANTIALLY THE ATTACHED FORM. WHEREAS, on December 13, 2001 the City Commission approved the form of an Interlocal and Lease Agreement between the City and the Downtown Development Authority ("DDA") for the establishment, construction and operation of a charter school at the City -owned property located at approximately 305 Northwest 3rd Avenue, Miami, Florida (the "Interlocal Agreement"); and WHEREAS, the Interlocal Agreement required the DDA to require that the Sublessee of the property pay the City a payment in lieu of tax; and WHEREAS, the DDA has requested that the above provision be deleted given that the Sublessee of the property will be the charter school; 'ATTACHMENT (S) 1 CONTAINED CITY COMMSS ON MEETING bF APES 1 1 2002 Aesa]ution rte. 02- 382 NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The recitals and findings contained in the Preamble to this Resolution are adopted by reference and incorporated as if fully set forth in this Section. Section 2. The proposed Interlocal and Lease Agreement between the City of Miami and the Downtown Development Authority ("DDA") for development of a charter school, to be located at 305 Northwest 3rd Avenue, Miami, Florida, approved by the City Commission on December 13, 2001, is amended to delete the requirement that the DDA cause the Sublessee to pay a payment in lieu of tax. Section 3. The City Manager is authorized" to execute the agreement, in substantially the attached form. Section 4. This Resolution shall become effective immediately upon its adoption and signature of the Mayor .21 1� The herein authorization is further subject to compliance with all requirements that may be imposed by the City Attorney, including but not limited to those prescribed by applicable City Charter and Code provisions. zi If the Mayor does not sign this Resolution, it shall become effective at the end of ten calendar days from the date it was passed and adopted. If the Mayor vetoes this Resolution, it shall become effective immediately upon override of the veto by the City Commission. Page 2 of 3 382 PASSED AND ADOPTED this 11th day of April , 2002. ATTEST: P ISCILLA A. THOMPSON CITY CLERK TO FOAND CORRECTNESS J DRO VILARELLO C ATTORNEY 6184:ORS:BSS ,ANUEL A. DIAZ, MAYOR Page 3 of 3 02- 382 INTERLOCAL AND LEASE AGREEMENT (DOWNTOWN MIAMI CHARTER SCHOOL) BETWEEN THE CITY OF MIAMI AND THE DOWNTOWN DEVELOPMENT AUTHORITY OF THE CITY OF MIAMI Dated this day of , 2002 02- 382 This Interlocal and Lease Agreement ("Agreement"), dated this day of , 2002, is made by and between the City of Miami, a municipal corporation of the State of Florida (the "City"), and The Downtown Development Authority of the City of Miami, a Florida body corporate (the "DDA"), pursuant to The Florida Interlocal Cooperation Act of 1969, Chapter 163, Florida Statutes (2001)(the "Act"). RECITALS A. The CITY is the owner of a certain parcel of land located at 305 N.W. 3rd Avenue, Miami, Florida and legally described in Exhibit "A" hereto (the "Property"). B. The CITY, under the authority of Laws of Fla., ch. 65-1090, established the DDA as a body corporate, empowered to acquire in its own name real property, and to lease, sell, and license real property, all in accordance with its stated purpose. C. DDA, which was created to facilitate economic growth in the Miami Downtown area, has studied the feasibility of developing and operating a charter school on the Property (the "Charter School") and has determined that it is in the best interest of the City of Miami to do so. D. The Charter School will house approximately 600 students, ages 5-11 in Kindergarten through 5t" grade, and is intended to provide a school -in -the - workplace setting, as well as to attract students from submarkets of Downtown Miami, including East Brickell, West Brickell, Downtown Core, Southeast Overtown/Park West, and Omni East and Omni West. E. DDA has formed a non-profit organization, The Downtown Miami Charter School, Inc., as permitted by appropriate law (the "Sublessee") to hold the charter and to construct, operate and manage (or arrange through a third party for the construction, operation and management of) the Charter School. F. It is anticipated that the Charter School will be constructed by a third party developer (the "Developer") pursuant to an agreement with the Sublessee (the "Ground Lease"). 2 �- 382 G. DDA has requested the CITY to lease the Property to DDA, for the establishment, construction and operation of the Charter School. H. The CITY deems it to be in interest of its citizens, and of the Downtown Miami area, to assist DDA in the establishment of the Charter School, and by Resolution No. 02-382, adopted on April 11, 2002 has agreed to lease the Property to DDA subject to the terms and conditions set forth in this Agreement. NOW, THEREFORE, in consideration of the foregoing, and for other good and valuable consideration, the receipt of which is hereby acknowledged, the CITY and the DDA agree as follows: ARTICLE 1 PURPOSE Section 1.1 Purpose The purpose of this Agreement is to assist DDA in the establishment of a Charter School on the Property. To this end, this Agreement provides for the lease of the Property to DDA, authorizes subleases to the Sublessee and the Developer to facilitate the financing of construction and allows the creation of a leasehold mortgage under the terms and conditions set forth herein. ARTICLE 2 DEFINITIONS Section 2.1 Defined Terms; Singular, Plural and Gender Any word contained in the text of this Agreement shall be read as the singular or the plural and as the masculine, feminine or neuter gender, as may be applicable in the particular context. More specifically, however, for the purposes of this Agreement the following words shall have the meanings attributed to them in this Section: 2. 1.1 "Applicable Laws" shall mean any law (including without limitation, any Environmental Law), enactment, statute, code, ordinance, administrative order, resolution, order, rule, regulation, guideline, judgment, decree, writ, permit, certificate, license, authorization, or other direction or requirement of any governmental authority or court having jurisdiction over the Property, the leasing or use of the Property, the establishment, construction, operation or management of a charter school, or any other matter relating to, or arising out of or in 3 02- 382 connection with this Agreement, as now existing or hereafter enacted, adopted, promulgated, entered, or issued, including but not limited to Section 228.056, Florida Statutes (2000), as amended from time to time. 2.1.2 "City Commission" means the City Commission of the City of Miami. 2.1.3 "Charter" means the contract to be entered into by and between the Downtown Miami Charter School, Inc. and Miami -Dade Public Schools as set forth in Section 228.056(9), Florida Statutes (2000). 2.1.4 "Charter School" means the school to be established and operated from the Property, to be known as the Downtown Miami Charter School. 2.1.5 "Commencement Date" means the date on which the Charter School begins operation. 2.1.6 'Developer" means Charter Schoolhouse Developers, Inc., a Florida corporation. 2.1.7 "Effective Date" means the date that this Agreement is fully executed by both parties. 2.1.8 "Environmental Laws" means all applicable requirements of federal, state and local environmental, public health and safety laws, regulations, orders, permits, licenses, approvals, ordinances and directives, including but not limited to, all applicable requirements of- the fthe Clean Air Act; the Clean Water Act; the Resource Conservation and Recovery Act, as amended by the Hazardous and Solid Waste Amendments of 1984; the Safe Drinking Water Act; the Comprehensive Environmental Response, Compensation and Liability Act, as amended by the Superfund Amendments and Reauthorization Act of 1986; the Occupational Health and Safety Act; the Toxic Substances Control Act; the Pollutant Discharge Prevention and Control Act; the Water Resources Restoration and Preservation Act; the Florida Air and Water Pollution Control Act; the Florida Safe Drinking Water Act; and the Florida Environmental Reorganization Act of 1975. 2.1.9 "Event of Default" shall have the meaning given to it in Section 19.1. 2.1.10 "Government Purpose" means structures, uses and activities required for performance of a governmental function, including federal, state and local government offices, cultural, or educational activities, auditoriums, libraries, museums and galleries, neighborhood or community centers, educational facilities and such other Government Purpose uses as may be approved by the City Manager. For purposes of this Agreement the term "Government Purpose" 4 02 382 shall exclude cemeteries, homeless shelters, group homes, foster care homes, hospitals, convalescent homes, jails, detention facilities, work camps, incinerators, community based residential facilities, public utilities, mass -transit facilities, mausoleums, and thrift shops. 2.1.11 "Ground Lease" means the lease agreement to be entered into by the Sublessee and the Developer, governing the construction of the Project, subject to the approval of the City Manager, whose approval shall not be unreasonably withheld. 2.1.12 "Impositions" shall mean all governmental assessments, fire fees, parking surcharges, excises, license and permit fees, levies, charges and taxes, general and special, ordinary and extraordinary, of every kind and nature whatsoever (irrespective of their nature, including, without limitation, all such charges based on the fact of a transaction, irrespective of how measured) which at any time during the term of this Agreement may be assessed, levied, confirmed, imposed upon, or become due and payable out of or in respect of, or become a lien on, all or any part of the Property and/or the Improvements, or any fixtures, equipment or personal property placed therein or thereon, including, without limitation, ad valorem and other similar taxes on the real estate, the leasehold interest and/or personal property. 2.1.13 "Improvements" shall have the meaning given to it in Section 10.1. 2.1.14 "Lease Year" shall mean a period of twelve (12) consecutive calendar months, with the first Lease Year commencing on the Commencement Date 2.1.15 "Party" or "Parties" (whether or not by use of the capitalized term) shall mean jointly or individually (as the context requires) each of the parties to this Agreement and their respective successors and assigns. 2.1.16 "Premise Lease" means the lease agreement to be entered into by the Developer and Sublessee for the Improvements, subject to the approval of the City Manager, whose approval shall not be unreasonably withheld. 2.1.17 "Project" shall mean the development, construction, management and operation of the Charter School and any other related facilities and improvements at the Property, which are incidental and ancillary to the operation of a charter school 2.1.18 "Property" shall mean the property located at 305 N.W. 3rd Avenue, Miami, Florida, which is legally described in Exhibit "A" attached hereto and incorporated herein. 5 02- 382 2.1.19 "Sublease" shall mean the Sublease Agreement to be entered into by the DDA and the Sublessee subject to the approval of the City Manager, whose approval shall not be unreasonably withheld. 2.1.20 "Subleases" mean the Sublease, the Ground Lease and the Premise Lease, all as approved by the City Manager. 2.1.21 "Sublessee" means the Downtown Miami Charter School, Inc., the not-for-profit entity that has an approved charter and is responsible for the establishment and operation of the Charter School, its successors and assigns. 2.1.22 "Sublessees" mean the Sublessee and the tenants under the Ground Lease and the Premise Lease. 2.1.23 "Unavoidable Delay" shall have the meaning ascribed to it in Section 19.5, ARTICLE 3 PURPOSE OF AGREEMENT Section 3.1 Purpose of Agreement Pursuant to the provisions of the Florida Interlocal Cooperation Act of 1969, the CITY and the DDA hereby enter into this Agreement for purposes of overseeing the establishment of the Project on the Property. Section 3.2 Lease of Property to the DDA The CITY hereby leases to the DDA, and the DDA hereby takes and leases from the CITY, the Property, subject to the terms and conditions set forth herein. The CITY shall transfer possession of the Property to the DDA on the Effective Date. Section 3.3 Title The CITY covenants and agrees that, at the Effective Date, the CITY (a) is and will be well seized of the Property, (b) has good title to the Property, free and clear of liens and encumbrances having priority over this Agreement, subject only to those matters set forth in Exhibit "B", and (c) has full right and authority to enter into this Agreement. The CITY shall have no liability to the DDA with respect to unrecorded utility easements which may exist as of the Effective Date and affect, or are later determined to affect the Property. 6 02-- 382 ARTICLE 4 THE TERM The term of this Agreement shall be for thirty (30) years commencing on the Commencement Date. ARTICLE 5 RENT The consideration of this Agreement is the establishment of the Charter School and the payment of $1.00 per year, as long as the Property is used for Charter School purpose. In the event that the Property is used for Governmental Purposes, as authorized under this Agreement, then the CITY shall receive rent equal to fair market value, as determined by an appraisal obtained by the CITY, taking into consideration that the Improvements will have been constructed and financed by a third party which may require a return of its investment and repayment of the construction loan. ARTICLE 6 USES The parties to this Agreement agree that the Property shall be used exclusively for the development, construction, management and operation of the Charter School and other uses normally incident thereto which may include, specifically, pre-school and after-school care, after school and weekend classes and programming, camps (including summer camps) and lectures and workshops for parents and educators. In the event that a Leasehold Mortgagee, as defined in Section 16.3 hereof, obtains possession or acquires an interest in the Property pursuant to a foreclosure action, then the Property may be used also for Governmental Purposes, provided that the Leasehold Mortgage satisfies the requirements of Article 17 hereof. Further, The City agrees to allow the property to be used for an approved Governmental Purpose by the Developer in the event that (i) the State of Florida decreases student funding for the Charter School by more than 25 % of the funding in effect on the Commencement Date, or (ii) after the conclusion of the 4th full year of operation of the Charter School, and despite the best efforts of the Developer and the Charter School, student enrollment has been less than 450 per school year, for each of the first 4 years of operation. The Project shall be operated at all times in accordance with all Applicable Laws. The Property shall not be used for any purpose other than the purposes set forth herein without the prior written consent of the City Commission, which consent may be withheld or 02 382 conditioned in the City Commission's sole discretion. This Agreement and all rights of the DDA hereunder shall, at the option of the CITY, cease and terminate if the DDA uses or allows the use of the Property for any purposes not permitted herein. ARTICLE 7 RIGHT TO TERMINATE Section 7.1 Failure to satisfy conditions The CITY shall have the right to terminate this Agreement in the event that any of the following conditions are not satisfied within the time period indicated below: thereto. (a) By April 30, 2002, all Subleases shall have been fully executed by the parties (b) By April 30, 2002, the DDA and CITY shall have received satisfactory evidence that sufficient funds have been or will be secured by the Sublessee under the Sublease or by the Developer for the construction of the Project; and (c) The Charter School commences operation from the Property by not later than the date required for the Charter School not to lose the Charter; it being the intent of this provision that this Agreement will terminate if the Charter School cannot commence operation from the Property. Notwithstanding the foregoing, the CITY shall not have the right to terminate this Agreement if the Charter School commences operation by the use of temporary classrooms, pending completion of the building, provided that it does not lose the Charter to operate a Charter School from the Property and that the Improvements shall be completed within 4 months following the Commencement Date. In the event that any of the foregoing conditions subsequent are not satisfied within the time period specified, the CITY shall have the right to terminate this Agreement by written notice to the DDA delivered pursuant to the notice provision contained herein at any time after the expiration of said time period but prior to the satisfaction of the condition in question. In the event that the conditions set forth in (a) and (b) above are satisfied prior to the CITY's termination of this Agreement, the CITY's right to terminate with respect to that particular condition shall cease. Upon termination the parties shall be released from all further obligations hereunder, except for such rights and obligations that are expressly intended to survive the termination of this Agreement, and provided, further, that the parties shall remain liable for the performance of their respective obligations under this Agreement to the extent incurred prior to 8 02- 382 the date of such termination. DDA agrees to cause the Developer to indemnify the CITY from and against all costs and liabilities relating to the termination of this Agreement under this section, including, without limitation, all costs and expenses relating to the restoration of the Property to the condition existing as of the date of this Agreement, free and clear of all liens and encumbrances. Section 7.2 Termination of Sublease In the event that the Sublease is terminated for any reason, then either the CITY or the DDA may terminate this Agreement by giving written notice at least 15 days prior to the date of termination. DDA agrees to give the CITY written notice of termination of the Sublease. Section 7.3 Subleases DDA agrees to include, and/or cause to be included, in all Subleases, a provision advising the parties thereto of the CITY's right to terminate the Agreement under this Article 7. ARTICLE 8 IMPOSITIONS Section 8.1 Impositions The DDA shall ensure that the Sublease contains an affirmative obligation on the part of the Sublessee to pay and discharge, as they become due, any and all Impositions, before any fine, penalty, interest or cost may be added to such Imposition. The Sublessee, at its sole cost and expense, may apply for a total or partial tax exemption if eligible. ARTICLE 9 ASSIGNMENTS AND OTHER TRANSFERS The DDA shall not assign this Agreement, nor sublease any portion of the Property without the prior written consent of the City, which may be withheld, in the City's sole discretion. The City hereby consents to the Subleases, provided that all Subleases shall contain a prohibition against assignment or subletting, without the City's written consent, which may be withheld in the City's discretion. The CITY reserves the right to sell or mortgage the Property, and to transfer or delegate any of its duties or obligations under this Agreement, as may be permitted by law, subject to this Agreement and the Subleases, and the purchaser, transferee or mortgagee shall acknowledge in writing that the Property is subject to this Agreement and the Subleases, and, with respect to a 9 02- 382 purchaser or other transferee, that it assumes all the obligations and liabilities of the CITY hereunder related to the time period from and after the transfer. If requested by the DDA, the CITY will obtain a non -disturbance agreement from its mortgagee providing that in the event of a foreclosure of the CITY'S interest in the Property, the possession of the Property by the DDA and/or the Sublessee shall not be disturbed so long as such parties are not in default of this Agreement or the Sublease (as applicable) beyond applicable notice and cure periods. ARTICLE 10 CONSTRUCTION OF IMPROVEMENTS Section 10.1 The Improvements DDA shall cause the Sublessee to commence and complete the development and construction of the Project on the Property, including the parking areas, walkways, driveways, and facilities appurtenant to the Charter School in accordance with the provisions of this Agreement (the "Improvements"). Upon termination of the Agreement, title to the Improvements shall vest in the CITY. DDA agrees to include this provision in the Sublease, and shall ensure that it is also included in all Subleases. Section 10.2 Manner of Construction of Improvements The construction of the Improvements on the Property shall be in accordance with all Applicable Laws and, with respect to the Project, substantially in accordance with the plans, specifications and other construction documents therefor, all of which shall be subject to approval by the City Manager, which shall not be unreasonably withheld or delayed. Section 10.3 CITY Property to Remain Free of Liens The DDA shall include in all Subleases a prohibition against the encumbrance of the CITY'S fee simple interest in the Property. If any mechanics' liens shall at any time be filed against the CITY'S interest in the Property, as a result of the actions of the DDA or the Sublessee (or any of its Sublessees, licensees, or concessionaires), the DDA shall promptly take and diligently pursue a cause of action to have the same discharged or to contest in good faith the amount or validity thereof, and if unsuccessful in such contest, to have the same discharged. 10 02- 382 Section 10.4 CITY's Right to Relocate Parking The City hereby retains the right to relocate the parking areas servicing the Project, in order to accommodate the construction of a new Miami Police Training Center Facility on the property lying adjacent to the Property. The City agrees not to exercise its right to relocate unless the following conditions are satisfied: (a) The training facility is designed and built so as to afford a reasonable setback from the Charter School, (b) The Charter School will continue to have adequate entrance and drop off areas, usable for their intended purposes, and (c) The Charter School is provided with reasonable alternative parking in a location reasonably close to the school and at a cost that is reasonable. In the event of relocation, all reference to the Property shall exclude the parking areas being relocated. DDA acknowledges the City's rights hereunder and agrees to include this provision in the Sublease, and shall ensure that it is also included in all Subleases. ARTICLE 11 EASEMENTS The CITY hereby retains temporary and permanent easements in, over, upon, through and under Property, as may be needed to install, maintain, repair and replace utility facilities such as water, gas, electric and telephone lines, and storm and sanitary sewers, to the extent that the City may now or hereafter deem it necessary or appropriate to service or develop, other City owned properties adjacent to the Property, provided that: (a) There is no material interference with the Project or the use and enjoyment of the Property by the DDA or the Sublessees; (b) Such activities are conducted with reasonable diligence and dispatch and diligent efforts are used to complete same in the shortest time possible under the circumstances (force majeure excepted); (c) The City shall promptly upon completion of any construction, repair or maintenance activity, at no cost to the DDA or the Sublessees, restore the surface of the easement area as nearly as possible to its former condition and appearance; and 11 02- 382 (d) The DDA agrees to incorporate the foregoing provision in all the Subleases and shall require the Sublessees to acknowledge the foregoing. ARTICLE 12 MAINTENANCE, REPAIR AND ALTERATIONS Section 12.1 Maintenance and Repair of the Improvements The DDA shall require the Sublessee, at the Sublessee's sole cost and expense, to maintain in good, clean, safe and orderly condition and repair the Property and the Improvements. Subject to Article 16 hereof, the DDA shall further require the Sublessee, at Sublessee's sole cost and expense, to promptly make to the Improvements all necessary repairs, renewals and replacements, interior and exterior, structural and nonstructural, whether made necessary or caused by fire or other casualty, or by ordinary wear and tear. All repairs, renewals and replacements shall be of good quality sufficient for the proper maintenance and operation of the Improvements and shall be constructed and installed in compliance with all Applicable Laws. Section 12.2 Alterations The DDA shall not make or permit the Sublessee to make any structural alterations to the building, without first obtaining the written consent of the City Manager, whose consent shall not be unreasonably withheld or conditioned and shall be granted or denied within twenty (2 1) business days of the DDA'S provision of all documents concerning the Alteration reasonably required by the CITY. Any construction undertaken in or to the Improvements shall be performed in accordance with this Article and other provisions of this Agreement including compliance with all Applicable Laws. ARTICLE 13 NOTICES All notices, demands, or other writings required or allowed in this Agreement must be in writing and shall be delivered or sent, with copies indicated, by personal delivery, certified mail or overnight delivery service to the parties as follows (or at such other address as a party shall specify by notice given pursuant to this Section): TO THE CITY: CITY OF MIAMI 444 S.W. 2nd Avenue, 10th Floor Miami, Florida 33130 Attention: City Manager 12 02- 382 WITH COPIES TO: CITY ATTORNEY City of Miami Miami Riverside Building, 9th Floor 444 S.W. 2nd Avenue Miami, Florida 33130 OFFICE OF ASSET MANAGEMENT City of Miami 444 S.W. 2"d Avenue, 3rd Floor Miami, Florida 33130 TO THE DDA: DOWNTOWN DEVELOPMENT AUTHORITY 200 South Biscayne Boulevard Suite 1818 Miami, Florida 33131 Attention: Executive Director ARTICLE 14 COMPLIANCE WITH APPLICABLE LAWS During the term of this Agreement, the parties shall comply with all Applicable Laws. The DDA shall require all Sublessees to comply with all Applicable Laws and shall require the Sublessees to obtain and maintain, at no cost to the CITY, all necessary permits and licenses that are required in connection with the operation of the Charter School and use of the Property. ARTICLE 15 INSURANCE AND INDEMNIFICATION Section 15.1 The terms of the Sublease shall require the Sublessee to comply with the insurance requirements of the CITY'S Risk Management Department. The insurance requirements will be set forth with specificity in the Sublease. Section 15.2 The DDA and the Sublessees shall indemnify, protect, defend and hold harmless the City, its officials, employees and agents from and against any and all claims, suits, actions, damages or causes of action of whatever nature arising out of the use or operation of the Property or relating to this Agreement and shall pay all costs, attorneys' fees, expenses and liabilities incurred in and about the defense of any such claims and the investigation thereof. In case any action or proceeding shall be brought against the CITY by reason of any such claim, the DDA and the Sublessees, as applicable, upon notice from CITY, shall defend the same 13 02- 382 at their expense by counsel acceptable to and approved in writing by the CITY. Notwithstanding the foregoing, the CITY reserves the right to defend itself at its own expense. DDA and the Sublessees, as applicable, shall immediately notify the CITY, in writing, of any claim or action filed or threatened, of whatever nature, arising out of the use or operation of the Property under this Agreement or any of the Subleases. ARTICLE 16 DAMAGE OR DESTRUCTION Section 16.1 Damage or Destruction Except as provided in 16.2 below, if the Improvements are damaged or otherwise destroyed and the Sublessee elects to restore them under the terms of the Sublease, this Agreement shall continue in full force and effect. Any restoration of the Improvements shall be in accordance with and in compliance with all Applicable Laws and, if the plans are materially different from those used originally to construct the Project, the plans must be approved in accordance with the plan approval procedures for the original construction of the Project and by the City Manager. All such restoration shall be performed by the Sublessee in accordance with the requirements set forth herein for the construction of the Improvements. The CITY shall not be liable for any inconvenience or annoyance to the DDA or Sublessee or injury to the Sublessee's operations resulting in any way from such casualty damage or repair thereof. Section 16.2 Damage or Destruction Occurring Toward End of Term If the Project is damaged or destroyed, and either (i) such damage or destruction occurs during the last four (4) years of the term of this Agreement, or (ii) more than 50% of the gross floor area of Improvements is damaged, or (iii) the Sublessee does not elect to restore the Improvements under the Sublease, then, either party may elect to terminate this Agreement by written notice to the other within ninety (90) days after the occurrence of such damage or destruction. In the event of termination under this Section 16.2 the insurance proceeds shall be applied as follows: (i) First, to satisfy the unpaid principal balance, any accrued and unpaid interest and any and all other obligations secured by a Leasehold Mortgage, as defined in Section 17.3 hereof, Second, to pay the cost of debris removal from the Property; and 14 02-- 382 (iii) The balance of the proceeds, if any, shall be applied first to pay to the Developer the undepreciated cost of the Improvements based on straight line depreciation of the Improvements over the term of the Ground Lease and the balance shall be paid to the CITY. Upon termination of this Agreement under any of the provisions of this Section 16.2, the DDA and the CITY shall each be released thereby from any further obligations hereunder accruing after the effective date of termination, except for such obligations that are expressly intended to survive the termination of this Agreement or that were incurred prior to the date of such termination. ARTICLE 17 MORTGAGE FINANCING Section 17.1 Leasehold Mortgages Except as specifically authorized under this Article, neither the DDA nor any of the Sublessees may encumber their interests in this Agreement or any of the Sublessees without the CITY's prior written consent. Section 17.2 Ground Lease The CITY authorizes the sublessee under the Ground Lease to pledge, mortgage or encumber its leasehold interest to a Leasehold Mortgagee, as defined in Section 17.3 below, subject to the terms and conditions herein set forth. Any such pledge, mortgage or encumbrance, as the same may be extended, modified, amended or replaced, is herein referred to as a "Leasehold Mortgage." The right to place a Leasehold Mortgage is subject to DDA and the Sublessees not being in default under the Subleases and this Agreement. Any Leasehold Mortgage shall by its terms be made expressly subject to all of the provisions, covenants, conditions, exceptions and reservations herein contained. The Leasehold Mortgage documents shall expressly require the Leasehold Mortgagee to notify the CITY of the occurrence of any default under the Leasehold Mortgage prior to commencing foreclosure proceedings. The CITY shall have the right to recapture the Ground Lease, in the event that foreclosure proceedings are commenced. The DDA shall ensure that the provisions of this Article are incorporated in the appropriate Subleases or documents. 15 O2— 3S2 Section 17.3 Leasehold Mortgagee The only Leasehold Mortgages authorized under this Agreement, are those securing a loan to an institutional lender, including without limitation any state or federally chartered bank, savings and loan association, commercial bank, insurance company, pension fund or other similar institutional entity, for the purpose of financing or refinancing the construction of the Project. ARTICLE 18 EMINENT DOMAIN Section 18.1 Permanent Taking If the whole of Property, or a material portion thereof is taken under power of eminent domain or sold, transferred or conveyed in lieu thereof, this Agreement shall terminate and become null and void on the date the Property is taken by the condemning authority. Upon said termination, the parties shall be relieved of all duties, obligations and liabilities arising under this Agreement from and after the date of termination. In the event that less than a material portion shall be taken by condemnation or deed in lieu thereof and the Sublessee has not terminated the Sublease under the terms thereof, then this Agreement and all the covenants, conditions and provisions hereunder shall be and remain in full force and effect as to all of the Property not so taken. The award of damages allowed the parties shall be apportioned as follows: (a) The City shall have the right to receive the portion of the award which represents the value of the land and its interest in the Improvements and consequential damages to any part of the land not taken. (b) DDA, or DDA's Sublessees shall have the right to receive the portion of the award which represents the unamortized value of the Improvements, less any amount due to a Leasehold Mortgagee. Section 18.2 Temporary Taking In the event of temporary taking of all or any portion of the Property for a period of thirty (30) days or less, then this Agreement shall not terminate, unless the Sublease is terminated. i[el 02- 382 ARTICLE 19 DEFAULT, REMEDIES AND TERMINATION Section 19.1 Events of Default The occurrence of any one or more of the following events is deemed an "Event of Default": (a) If the DDA defaults in the due and punctual payment of any installment of any Rent when due and payable in accordance with this Agreement, and such default continues for more than thirty (30) days after written notice that the sum is due; or (b) If either party defaults in the due performance or observance of any covenant or condition or provision under this Agreement, other than the payment of Rent, and such default continues for more than thirty (30) days after written notice of the default from the non -defaulting party, provided that if such default is curable but cannot be cured within thirty (30) days, the defaulting party shall have a reasonable period of time (not to exceed one hundred eighty (180) days) to cure such default so long as the defaulting party commences the cure within thirty (30) days and diligently prosecutes same to completion; or (c) If there is a default under any of the Subleases which is not cured within the applicable cure period. Section 19.2 Remedies If any Event of Default occurs, the party not at fault shall have the right to terminate this Agreement upon thirty (30) days written notice; provided, however, that in the case of a default under Section 19.1 (c) above, this Agreement will be terminated only if the applicable Sublease is terminated simultaneously. Section 19.3 No Waiver The waiver (either expressed or implied by law) by either party of any default of any term, condition or covenant herein contained shall not be a waiver of any subsequent default of the same or any other term, condition or covenant herein contained. No waiver made by either party with respect to performance, or manner or time thereof, of any obligation of the other party or any condition to its own obligation under this Agreement shall be considered a waiver of any rights of the party making the waiver with respect to the particular obligations of the other party, or conditions to its own obligation, beyond those expressly waived, and to the extent thereof, or a 17 02- 382 waiver in regard to any other rights of the party making the waiver or in regard to any obligation of the other party. Section 19.4 Remedies Cumulative No remedy conferred upon or reserved to the CITY or the DDA shall be considered exclusive of any other remedy, but shall be cumulative and shall be in addition to every other remedy given under this Agreement or existing at law or in equity or by statute; and every power and remedy given by this Agreement to the CITY or the DDA may be exercised from time to time and as often as occasion may arise or as may be deemed expedient by the CITY or the DDA. No delay or omission of CITY or DDA to exercise any right or power arising from any default shall impair any right or power, nor shall it be construed to be a waiver of any default or any acquiescence in it. Section 19.5 Unavoidable Delay For the purpose of any of the provisions of this Agreement, neither the CITY (including the City Manager) nor the DDA, as the case may be, shall be considered in breach of or in default in any of its obligations under this Agreement in the event of unavoidable delay in the performance of any such obligations due to strikes, lockouts, acts of God, inability to obtain labor or materials, or to settle insurance claims due to governmental restrictions, enemy action, civil, commotion, fire, hurricane, flood, casualty, or other similar causes beyond the reasonable control of a party (collectively, "Unavoidable Delay"), but not including such party's insolvency of financial condition, it being the purpose and intent of this Section that in the event of the occurrence of any such Unavoidable Delay the time or times for the performance of the covenants and provisions of this Agreement shall be extended for the period of Unavoidable Delay; provided, however, that the party seeking the benefit of the provisions of this Section shall, within thirty (30) days after such party shall have become aware of such Unavoidable Delay, give written notice to the other party thereof of the cause or causes thereof and the time anticipated to be delayed. This provision shall not apply to extend the period for compliance with the condition set forth in Section 7.1(c) of this Agreement. Section 19.6 Termination In the event that this Agreement is terminated by the CITY for any reason expressly permitted hereunder, it is understood and agreed that the CITY shall have no liability whatsoever, financial or otherwise, to the DDA or to any third party for any matter whatsoever 18 02- 382 relating to the termination or the use of the Property. If this Agreement is terminated pursuant to the provisions of Article 7 hereof, DDA shall be responsible for ensuring that the CITY is indemnified from and against all costs and liabilities relating to the termination of this Agreement including, without limitation, all costs and expenses relating to the restoration of the Property to the condition existing as of the date of this Agreement, free and clear of all liens and encumbrances. ARTICLE 20 ENVIRONMENTAL MATTERS The DDA shall include in the Sublease (and require that it include in any subleases, licenses, concession agreements and management agreements) provisions whereby the Sublessee and such third parties shall warrant and represent, and shall indemnify and hold harmless the CITY and the DDA for the breach of the covenants, that: (a) They will not unlawfully use or employ the Property or any of the facilities thereon to handle, transport, store, treat, or dispose of any hazardous wastes or substances, on the Property; (b) They will not knowingly conduct any activity on the Property in violation of any applicable Environmental Laws; and (c) They will conduct any activity on, or relating to the Property, and the operations of the Project in full compliance with all Environmental Laws and all terms, conditions and requirements of any and all permits, licenses, consents, approvals, and authorizations of any federal, state, or local regulatory agencies or authorities. The foregoing provisions, as contained herein and in the corresponding documents, shall survive the termination of this Agreement and of the documents in which they are contained. ARTICLE 21 MISCELLANEOUS Section 21.1 Section Ca tions The captions appearing in this Agreement are for convenience only and shall in no way define, amplify, limit or describe the scope or intent of this Agreement or any part thereof. IM 02- 382 Section 21.2 Other Documents The CITY and the DDA shall take all such actions and execute all such documents which may be reasonably necessary to carry out the purposes of this Agreement, whether or not specifically provided for in this Agreement. Section 21.3 Counterparts This Agreement may be executed and delivered in two counterparts, each of which shall be deemed to be an original and both of which, taken together, shall be deemed to be one Agreement. Section 21.4 Entire Agreement This Agreement, and the documents which are Exhibits to this Agreement, contain the sole and entire agreements entered into by the parties with respect to their subject matter, and supersede any and all other prior written or oral agreements between them with respect to such subject matter. Section 21.5 Severabilitv If any term or provision of this Agreement or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Agreement or the application of such term or provision to the persons or circumstance other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law. Section 21.6 Approvals and Consents Wherever in this Agreement the approval or consent of any party is required, it is understood and agreed that such approval or consent will not be unreasonably withheld or delayed, unless the context specifically indicates otherwise. Wherever in this Agreement the approval or consent of the CITY is required, the written approval or consent of the matter in question by the City Manager shall satisfy the requirements for approval or consent of the CITY for all purposes, except where the approval or consent of the City Commission is specifically required. Section 21.7 Governing Laws This Agreement shall be governed by the laws of the State of Florida. This Agreement is subject to and shall be interpreted to effectuate its compliance with the Charter of the CITY. 20 02- 382 Section 21.8 Amendments No amendment may be made to this Agreement unless authorized by the City Commission and the DDA. Section 21.9 Waiver of Jury Trial The parties hereby knowingly, irrevocably, voluntarily and intentionally waive any right either may have to a trial by jury in respect of any action, proceeding or counterclaim based on this lease, or arising out of, under or in connection with this Agreement or any amendment or modification of this Agreement, or any other agreement executed by and between the parties in connection with this Agreement, or any course of conduct, course of dealing, statements (whether verbal or written) or actions of any party hereto. This waiver of jury trial provision is a material inducement for the CITY and DDA entering into the subject transaction. Section 21.10 Quiet Enjoyment If the DDA pays the Rents and other amounts due under this Agreement and observes and performs all the terms, covenants and conditions hereof, the DDA shall peaceably and quietly hold and enjoy the Property for the Agreement term, without interruption by the CITY, subject to the terms and conditions of this Agreement. Section 21.11 Surrender of Possession Upon the expiration or earlier termination of the Agreement pursuant to the provisions hereof, the DDA shall deliver to the CITY possession of the Property in good repair and condition, reasonable wear and tear excepted. Section 21.12 Attorney's Fees In the event that legal action is taken by either party to enforce any of the provisions of this Agreement, each party shall be responsible for its own expenses, including attorney's fees, in connection with any such action. Section 21.13 Recording A memorandum or short form of this Agreement in form mutually satisfactory to the parties shall be recorded among the Official Records of Miami -Dade County, Florida, and either party may cause any modification or addition to this Agreement or any ancillary document relevant to this transaction to be so recorded. 11 u2- 382 Section 21.14 Estoppel Certificates The CITY and the DDA shall, at any time and from time to time, within fifteen (15) days after written request by the other, execute, acknowledge and deliver to the party which has requested the same, a certificate stating that: (i) this Agreement is in full force and effect and has not been modified, supplemented or amended in any way, or, if there have been modifications, the Agreement is in full force and effect as modified, identifying such modification agreement, and if this Agreement is not in full force and effect, the certificate shall so state the reasons why; (ii) this Agreement as modified represents the entire agreement between the parties as to this leasing or, if it does not, the certificate shall so state why; (iii) the dates on which the term of this Agreement commenced and is scheduled to terminate; (iv) to the best of the party's knowledge, all conditions under this Agreement to be performed by the CITY or the DDA, as the case may be, have been satisfied and, as of the date of such certificate, there are no existing defenses or offsets which the CITY or the DDA, as the case may be, has against the enforcement of this Agreement by the other party, or, if such conditions have not been satisfied or if there are any defenses or offsets, the certificate shall so state; and (v) the rental due and payable for the year in which such certificate is delivered has been paid in full, or, if it has not been paid, the certificate shall so state. The party to whom any such certificate shall issued may rely on the matters therein set forth and thereafter the party issuing the same shall be estopped from denying the veracity and accuracy of the same. Section 21.15 Non -Discrimination DDA agrees that there will be no discrimination against any person based upon race, religion, color, sex, ancestry, age, national origin, mental or physical handicap, in the use of the Property. It is expressly understood that upon a determination by a court of competent jurisdiction that discrimination has occurred, the CITY shall have the right to terminate this Agreement. Section 21.16 Successors and Assi ns Except to the extent limited elsewhere in this Agreement, all of the covenants, conditions and obligations contained in this Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the CITY and the DDA. 22 09?- 382 Section 21.17 Protection From Personal Liability No obligation r liability of any kind or nature whatsoever incurred by or asserted against the DDA or the CITY in connection with this Agreement, or arising out of the parties' actions in connection therewith, shall in any manner whatsoever be a personal obligation or liability of any member of the DDA or any elected or appointed official of the CITY. IN WITNESS WHEREOF, the parties have executed this Agreement at Miami, Florida on the day and year first above written. ATTEST: By: Priscilla A. Thompson City Clerk ATTEST: By: Print Name: APPROVED AS TO INSURANCE REQUIREMENTS LIZ Risk Management Department CITY OF MIAMI, a municipal corporation of the State of Florida LIN Carlos A. Gimenez City Manager DOWNTOWN DEVELOPMENT AUTHORITY ma APPROVED AS TO FORM AND CORRECTNESS: Alejandro Vilarello City Attorney 23 0` 382 CITY OF MIAMI, FLORIDA INTER -OFFICE MEMORANDUM TO: The Honorable Mayor and Members DATE: of the City Commission SUBJECT: FROM: REFERENCES: ENCLOSURES: RECOMMENDATION: 24 APR - 3 W FILE: Amendment to Interlocal and Lease Agreement with DDA for Charter School It is respectfully requested that the City Commission consider the attached Resolution authorizing the City Manager to execute Amendment No. 1, in substantially the attached form, to the Interlocal and Lease Agreement between the City of Miami and the Downtown Development Authority ("DDA") for development of a charter school in order to: (1) delete the requirement that the DDA cause the sublessee to pay a payment in lieu of tax (PILOT) in the event the leased property is tax exempt; and (2) delete the City's right to relocate the school's parking. BACKGROUND: On December 13, 2001, the City Commission adopted Resolution 01-1328 authorizing the City Manager to execute an Interlocal and Lease Agreement with the DDA for the establishment, construction and operation of a charter school at the City -owned property located at approximately 305. NW 3 Avenue, Miami, Florida. The Interlocal and Lease Agreement provided for the DDA to sublease to the Downtown Miami Charter School, Inc. ("Charter School") who would in turn sublease to a developer pursuant to a Ground Lease. The developer would then construct the school and lease back the premises to the Charter School. The business terms approved by the City Commission included the following: (1) a requirement that the DDA require the Charter School to pay a PILOT in the event the leased property is exempt from taxation; and (2) the right of the City to relocate the parking area. In an effort to avoid any hardship, the Charter School has requested that these two provisions be deleted from the requirements of the Interlocal Agreement. A CAG:&L-m Charter Sch amd 02- 382