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HomeMy WebLinkAboutR-98-0879J-98-972 9/8/98 RESOLUTION NO. `-' 8 7 " A RESOLUTION RELATED TO THE LEASE AND DEVELOPMENT AGREEMENT BETWEEN GROVE HARBOUR MARINA AND CARIBBEAN MARKETPLACE, LLC. ("LESSEE") AND THE CITY OF MIAMI, APPROVED PURSUANT TO RESOLUTION NO. 97-774, ADOPTED OCTOBER 28, 1997; APPROVING, IN PRINCIPLE, THE SALE OF THE INTERESTS OF THE MEMBERS OF SOUTHERN CROSS MARINAS, L.C. TO CENTURY PARTNERS GROUP, LTD, SUBJECT TO COMPLIANCE WITH ALL CITY CODE AND CHARTER PROVISIONS AND APPROVAL OF THE CITY MANAGER AND CITY ATTORNEY. BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. Subject to compliance with all City Code and Charter provisions and approval of the City Manager and City Attorney, the sale of the interests of the members of Southern Cross Marinas, L.C. to Century Partners Group, LTD, is hereby approved, in principle, as it relates to the lease and development agreement between Grove Harbour Marina and Caribbean Marketplace, LLC. ("Lessee") and the City of Miami, approved ! WoW- anomm or R SEP 0 8 1998 98- 879 pursuant to Resolution No. 97-774, adopted October 28, 1997. Section 2. This Resolution shall become effective immediately upon its adoption and signature of the Mayor.1/ PASSED AND ADOPTED this 8th day of tee= tpmher , 1998. JOE CAROLLO, MAYOR In accordance with Miami Code Sec. 2-36, since the Mayor did not indicate approval of this legislation by signing it in the designated place provided, said legislation now becomes effective with the elapse of ten (10) days from a date o 'ommissicn Itiori regarding same, without the Mayor exercisi jay , ATTEST: Water J. F City Cleric WALTER J. FOEMAN CITY CLERK APPROVED 919:BSS:kc CTNESS:t,"-- 1� 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. 2 - 879 � '� J-97-747 10/20/97 RESOLUTION NO. 9 7 - 774 A RESOLUTION, WITH ATTACHMENTS, AUTHORIZING THE CITY MANAGER TO EXECUTE A LEASE AND DEVELOPMENT AGREEMENT, IN SUBSTANTIALLY THE ATTACHED FORM, WITH GROVE HARBOUR MARINA AND CARIBBEAN MARKETPLACE, LLC. (HEREINAFTER "LESSEE"), FOR THE PLANNING AND DESIGN, CONSTRUCTION, LEASING AND MANAGEMENT OF A COMMERCIAL AND RECREATIONAL MULTIPLE USE FACILITY INCLUDING A FULL SERVICE BOAT YARD, MARINA, MARINE RELATED RETAIL USES AND A —%PUBLIC MARKET WITH ADAPTIVE REUSE OF TWO EXISTING HISTORIC HANGAR STRUCTURES ON A 13.55 ACRE SITS (6.95 UPLAND AND 6.6 SUBMERGED ACRES) ON DINNER KEY FOR A PERIOD OF FORTY (40) YEARS; REQUIRING SAID LESSEE TO MAKE A TOTAL CAPITAL INVESTMENT IN, SAID PROPERTY OF NOT LESS THAN $5,000,000; PAYING TO THE CITY OF MIAMI A MINIMUM ANNUAL LEASE PAYMENT OF NOT LESS THAN $300,000 OR A PERCENTAGE OF REVENUES AS SPECIFIED HEREIN, WHICHEVER IS GREATER, INCLUDING A RENT ESCALATION PROVISION; AND, SUBJECT TO SUCH ADDITIONAL CONDITIONS AS ARE PROVIDED IN THE AGREEMENT. WHEREAS, pursuant to applicable Sections of the City Charter and Code pertaining to Unified Development Projects, Grove Harbour Marina and Caribbean Marketplace, LLC. submitted a proposal to the City of Miami on August 30, 1996 for the development and operation of a commercial and recreational use multiple use facility including a full service boatyard, marina, R'marine!related retail uses and a- public market with adaptive p` ci r"se If two existing historic hangar structures on approximately .11;55.4cres of City -owned waterfront property on Dinner Key; and C '' G rm IATTACBMENT (S) tONtAiNE 8 879 c K07 oCt WHEREAS, said proposal constituted an offer from said entity to provide, planning, design, construction, leasing and, management services for improvements to said City property, as well as a commitment for a total capital investment of not less than $5,000,000 by Grove Harbour Marina and Caribbean Marketplace,- LLC.; and •• WHEREAS, on July 23, 1997, the City Commission adopted Resolution No. 97-493 which accepted said proposal and authorized the City Manager to enter into lease negotiations with Grove Harbour Marine and Caribbean Marketplace, LLC.; and WHEREAS, the administration has negotiated a lease and development agreement which governs detailed arrangements with Grove Harbour Marina and Caribbean Marketplace, LLC, as Lessee, for the planning and design, construction, leasing, and management of commercial and recreational multiple use facility; and WHEREAS, under the terms of the proposed lease and development agreement, the City shall receive the greater of a minimum annual rent of $300,000 or a percentage rent equal to: a. 10t of gross revenues from the marina; b. 10t of gross revenues from the boatyard; C. St of gross revenues from the marina fueling facility; d. Sir of gross revenues from the marina services facility or if leased by Lessee to a subtenant for such use, then 5O of the floor rent received by Lessee plus 2S% of the percentage rent received by Lessee; e. SO of gross revenues from the restaurants; 2 98- 8"79 - - f. 2% of gross revenues received by Lessee from the marketplace vendors; g. from marketplace subtenants located outside the historic hangars: W 10ir of the floor rent received by Lessee plus (11) 50% of the percentage rent received by Lessee until the City's portion equals air of gross revenues from the subtenants operations, thereafter, 37.5% of the percentage rent received by Lessee; and h. from marketplace subtenants located within the historic hangars: (i) 100 of floor rent received by Lessee plus (ii) 37.St of gross revenues received by Lessee; 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 hereby adopted by reference thereto and incorporated herein as if fully set forth in this Section. Section 2. The City Manager is hereby authorizedll to execute a lease and development agreement, in substantially the form attached, with Grove Harbour Marina and Caribbean Marketplace, LLC. (hereinafter "Lessee"), for the planning and design, construction, leasing and management of a commercial and recreational multiple use facility including a full service boat yard„ marina, marine related retail uses and a public market with adaptive reuse of two existing historic hangar structures on l� 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. 9 8 _ 879 - 3 - approximately 13.55 acres (6.95 upland and 6.6 submerged acres) on Dinner Rey for a period of forty (40) years. Section 3. Said Lessee shall make a total capital investment in said property of not less than $5,000,000. Section 4. Said lessee shall pay to the City of Miami rental payments equal to the greater of a minimum annual lease payment of $300,000 or a percentage of revenues equal to: (a) lot of gross revenues from the marina; (b) lot of gross revenues from the boatyard; (c) 5% of gross revenues from the marine fueling facility; (d) 5t of gross revenues from marina services facilities or if leased by Lessee to a subtenant for such use then, 5# of the floor rent received by Lessee plus 25% of the percentage rent received by lessee; (e) 5% of gross revenues from restaurants; (f) 2% of gross revenues received by Lessee from the marketplace vendors; (g)from marketplace subtenants located outside of the historic hangars: (i) 10% of the floor rent received by Lessee plus (11) 50% of the percentage rent received by Lessee until the City's portion equals 3W of gross revenues from subtenants' operations and thereafter, 37.5t of the percentage rent received by Lessee; and (h) from marketplace subtenants located within the historic hangars: (i) 10t of floor rent received by Lessee plus (11) 3 7.5% of gross revenues received by Lessee; and, including --a rent escalation provision. Section S. Said Lessee shall be subject to such additional conditions as are provided in the lease and development agreement. 98- 879 Section 6. This Resolution shall immediately upon its adoption. become effective PASSED AND ADOPTED this 28th day of October ATTB WALTER 4L APMMN CITY CLERK PREPARED AND APPROVED BY: LINDA R. KRAMON ASSISTANT CITY ATTORNEY JOB CAROLW MAYOR / L APPROVED AS TO FORM AND CORRECTNESS: NN S, 171- CITY A LKX/pb/1956 - 5 - 1997. 98- 879 Executive Summary Lease and Development Agreement between the City of Miam4 Florida and Grove Harbour Marina and Caribbean Marketplace, LLC Organizational Structure & Ownership Composition: The Lessee is a Florida Limited Liability Company composed of 70% Harbour Mamgement Group, Inc., a Florida Corporation President: Alan Lima Shareholders Alan Lima Felix Lima Antonio Zamora, Jr. Felix Sabates Manty Morese Ssbstes Carl Straw 30% Southern Cross Marinas, LC, a Florida Limited Liability Company President: Robert Christoph Shareholders: Robert Christoph Carlos Lacasa Ownership is 83% minority; professional and consultants we 75% minority Lease Terns (Section 3.1): Term of 40 years Development Propvn&A easeboW Improvements (Sections 4.1, 4.2, 4.4-4.7): Grove Harbour Marina and Caribbean Marketplace development of a multiple use facility including commercial and recreational uses with adaptive reuse of two existing historic hangar structures on a 13.55 acre site (6.95 upland acres and 6.6 submerged acres) to include: 98- 879 A full service marina with at least 122 wet slips (includes 52 slips that the City is constructing); approximately 140 dry slip storage spaces for vessels larger than 28 R in length; ancillary facilities and services A full service boatyard with the capability of handling repair and servicing some 40 boats at any one time; capability of boat owners to repair individual boats A marine retail facility of approximately 10,000 sq.ft. A marine fueling facility A public marketplace emphasizing the specialty, unique, ethnic, and exotic aspects of subtropical and tropical culture and cuisine Improvements valued at a minimum investment of $S million Construction to commence 30 days after the issuance of a building permit and be completed within 18 months A Performance and Payment Bond naming the City as owner or a Letter of Credit shall be required from Lessee in an amount equal to 100% of the cost of construction of the improvements plus professional design fees associated with the project All alterations and modifications to the exterior of the existing, historic hangars shall meet the Ste+ of the Interior's Standards for Rehabilitation and shall be approved by the City's Historic and Environmental Preservation Board (Section 7.4). Date of Possession (Section 4.3): Lessee to tare possession of property 30 days after the following conditions have been met: 'The property is clear of existing tenancies The Development Plans have been reviewed and approved by the City Manager as being in substantial accordance with the conceptual site plan 98- 879 2 The City shall have delivered the environmental permits for the expansion of the marina beyond the 52 slips that the City is building Evidence of construction and/or permanent financing of improvements has been provided, reviewed and accepted by the City Manager that such financing has been committed 'The property has been remediated and restored to the condition required by environmental law, pursuant to the Environmental Liability section the Lease (summarised below) and the City shall have received an Environmental Condition Acceptance Notice Amount and Payment of Rest (Section 5.1-5.8): The greater of: The Minimum Annual Rent in an amount of. 300,000 or A Percentage of Revenues equal to: 10% of Gross Revenue from the Marina 10% of Gross Revenue from the Boatyard 5% of Crrosa Revenue from the Marine Fueling Facility 5% of Gross Revenue from Marina Services Facilities or if Lessee Leases to a Subtenant for Such Use, then 5% of the Floor Rent Received by Lessee plus 25% of the Percentage Rent Received by Lessee 5% of Gross Revenue from Restaurants 2% of Gross Revenue Received by Lessee from Marketplace Vendors From Marketplace Subtenants Located Outside of the Hangars: 10% of the Floor Rent Received by Lessee plus 50% of the Percentage Rent Received by Lessee Until City's Portion Equals 3% of Gross Revenue From Subtenant's Operations. 'Thereafter, 37.5% of Percentage Rent Received by Lessee 3� 98- 879 From Marketplace Subtenants Located Within Hangars: 10'Ye of Floor Rent Received by Lessee plus 37.5% of Gross Revenue Received by Lessee Minimum Annual Rent to be adjusted every 5 years based on an appraisal of fair market rent, beginning at the end of the 7+ lease year Payment of Security Deposit (Section 5.3): Simultaneously with the execution of the Lease, Lessee to deposit $150,000 with the City as a Security Deposit City Participation on Sale or Transfer of Lease (Section 8.9): In the event of a sale or transfer of 15% or more of Lessee's membership interest, City to participate by receipt of 3% of net proceeds received by Lessee Payment of Tana (Sections 10.1-10.5): Lessee to pay all taxes, gents and other impositions. Should the Lessee obtain a tax exemption for the property and/or the leasehold improvements, the Lessee to pay the City an amount equal to what the City's portion of the ad valorem taxes would be, "City Payment in Lieu of Tax" Insurance (Sections 11.1-11.7): At the Lessee's sole cost and expense, all required insurance to be carried and maintained, as stipulated in the Lease Environmental Liability (Sections 20.1-20.11): Costs of environmental inspections and audits to be paid by Lessee If inspections find the property in a condition acceptable to Lessee, then Lessee to deliver to City an Environmental Condition Acceptance Notice and no further action takes place If inspections reveal an environmental condition that must be remediated, then Lessee to pay the first $50,000 of the costs, the City to pay the next $50.000 of the costs, and the parties to share equally in the cost of the next $500,000. 4 98-- 879 In the event remediation coats should exceed $600,000, then the parties will attempt to reach an agreement as to the apportionment, with either party having the right to cancel the Lase Additional Beneft to the City (Section 24.1): Lessee to contribute to the City an amount equal to 50'A of the taxes abated for the hiseric property for the period .T,essee is eligible to receive any such abatement Reimburs went of City Ezpenaa (Section 30.1): Upon execution of the Lesae, Lessee to reimburse the City $21,883.54 for direct costs associated with issuing the RFP for the project s 98 - 879 TABLE OF CONTENTS ARTICLE I EDITS AND DEFINITIONS Section 1.1 Exhibits 3 Section 1.2 Defined Terms; Singular, Plural and Gender 3 ARTICLE U THE DEMISE Section12.1 The Demise ,• 16 Section 2.2 The Leasehold Improvements to Become the Property 16 of Lessor Section 2.3 Delivery of Title to Lessor 16 ARTICLE III TERM Section 3.1 Lease Term 17 ARTICLE IV POSSESSION OF THE SUBJECT PROPERTY AND CONSTRUCTION OF LEASEHOLD DMO S Section 4.1 The Leasehold Improvements 17 Section 4.2 Lessee's Financial Obligations 17 Section 4.3 Delivery of Possession of Subject Property 18 ("Possession Date") Section 4.4 Additional Security for L,essee's Construction Obligations 21 Section 4.5 Time for Commencement and Completion of Construction 24 of the Leasehold Improvements Section 4.6 Manner of Construction of Leasehold Improvements 24 Section 4.7 Consultants 27 ARTICLE V Section 5.1 Amount of Rent 27 Section 5.2 Rent Adjustment 30 Section 3.3 Security Deposit 31 Section 3.4 Place of Payment 31 Section 5.5 Late Fees 31 Section 5.6 Rent to be Without Deduction 32 Section 5.7 Payment of Rent in Event of Loss or Damage 32 Section 3.8 Rental Deposits from Subtenants 32 Section 3.9 Review of Rent by Loessor's Dept. of Internal Audits dt Reviews/Additional Rent 32 ARTICLE VI MORTGAGES AND MORTGAGEES Section 6.1 Leasehold Mortgage Section 6.2 No Waiver of Lessee's Obligations or City's Rights ARTICLE VII Section 7.1 Section 7.2 Section 7-3 Section 7.4 ARTICLE VIII ADDITIONAL CONDITIONS OF LEASE AGREEMENT RESTRICTIONS UPON USE OF SUBJECT PROPERTY Certain Conditions of Leasing Restrictive Covenants Additional Conditions and Restrictions Upon Use of Subject Historic Preservation Requirements 33 38 AND 39 39 40 41 RESTRICTIONS ON TRANSFERS OF LESSEE'S LEASEHOLD ESTATE Section 8.1 Representations as to Development of the Project 42 Section 8.2 Definitions 42 Section 8.3 Transfers 43 Section 8.4 Notice of Transfer: Information as to Shareholders 44 Section 8.5 Criteria for Consent for Assigm.:�nts and/or Purchase of Subject Property 45 Section 8.6 Effectuation of Certain Permitted Transfers 46 Section 8.7 Transfers of the City's Interest 46 Section 8.8 . Acceptance of Rent from Transferee 47 Section 8.9 Participation on Sale of Lessee's Business and/or Transfer 47 ARTICLE IX EASEMENTS Section 9.1 Easements 48 Section 9.2 Confirmatory Instruments 49 ARTICLE X PAYMENT OF 04POSMONS Section 10.1 Payment of Impositions 49 Section 10.2 Payment of Ad Valorem Real Property Taus 50 Section 10.3 Lessee's Right to Contest Impositions 50 Section 10.4 Payment of Ad Valorem Taus to the City of Miami 51 Section 10.5 Proof of Payment 51 ARTICLE XI INSURANCE Section 11.1 Insuzzwe on the Leasehold Improvements 52 Section 11.2 Other Insurance to be Carried 53 Section 11.3 Delivery of Insurance Policies 55 Section 11.4 Adjustment of Loss 56 Section 11.5 Insurer to be Approved - Premium Receipts 56 Section 11.6 Waiver of Subrogation 57 98- 879 ARTICLE XII RECORDS AND AUDITING Section 12.1 Records of Sales Section 12.2 Audit ARTICLE XIII Section 13.1 Section 13.2 Section 13.3 Section43.4 Section 13.5 Section 13.6 Section 13.7 �14 9�A11 Section 14.1 Section 14.2 Section 14.3 ARTICLE XV Section 15.1 Section 15.2 Section 15.3 USE OF THE SUBJECT PROPERTY AND LEASEHOLD WROVEMENTS Limited Representations by Lessor Lessee's Representations The Leasehold Improvements to be Open to Public Compliance with Laws Right to Contest Compliance Use of the Subject Property Parking and Circulation 57 58 59 61 61 62 62 62 62 REPAIRS, MAINTENANCE AND D PROVEMENTS Repair of the Leasehold Improvements 63 Alteration of Exterior Improvements 63 Alteration of City Property 64 LESSOR'S RIGHT TO PERFORM LESSEE'S COVENANTS; REIMBURSEMENT OF LESSOR FOR AMOUNTS SO EXPENDED Performance of Lessee's Covenants to Pay Money Lessor's Right to Cure Lessee's Default Reimbursement of Lessor and Lessee ARTICLE XVI DAMAGE OR DESTRUCTION Section 16.1 Definitions Section 16.2 Lessee's Duty to Repair, Restore or Replace the Leasehold Improvements After Damage Section 16.3 Performance of Restoration Work Section 16.4 No Right to Terminate Section 16.5 Lessee's Right to Terminate Section 16.6 Payment for Construction of the Restoration Work Section 16.7 Collection of Insurance Proceeds Section 16.8 Unused Insurance Proceeds and Deposits ARTICLE XVII ARBITRATION Section 17.1 Arbitration Section 17.2 Procedures ARTICLE XVM MECHANICS LIENS Section IS. I Discharge of Mechanics Liens 65 65 65 66 66 67 68 68 68 68 68 69 70 72 a � s ARTICLE XIX COVENANT AGAINST WASTE AND INSPECTION Section 19.1 Waste 74 Section 19.2 Inspection of Subject Property 74 ARTICLE XX ENVIRONMENTAL LL4BII.TTY Section 20.1 Definition of Terms 74 Section 20.2 Lessee Inspection 76 Section 20.3 Lessee Environmental Covenant 78 Section 20.4 Lessee's Update 79 Section'20.5 Lessor's Right to Perfotin 79 Section 20.6 Remediation 80 Section 20.7 Closure 80 Section 20.8 Lessor's Options 81 Section 20.9 Environmental Liens 81 Section 20.10 Environmental Indemnity 82 Section 20.11 Environmental Assessment at End of Lease Term 83 ARTICLE XXI PUBLIC UTILITY CHARGES Section 21.1 ressee to Provide and Pay for Utilities 84 Section 21.2 Lessor Not Liable for Failure of Utilities 85 ARTICLE XXII INDEMNIFICATION Section 22.1 General Ldemnifcation of Lessor Without Limitation of Any Other Indemnity Given Hereunder 85 Section 22.2 General Indemnification of Lessee 86 ARTICLE XXIII LIEN FOR RENT AND OTHER CHARGES Section 23.1 Lien for Rent 87 ARTICLE XXIV ADDITIONAL BENEFITS TO THE CITY OF MIAMI Section 24.1 Additional Benefits 87 ARTICLE XXV CONDEMNATION Section 25.1 Definitions 88 Section 25.2 Entire Subject Property Taken by Cotdemnation 88 Section 25.3 Partial Taking of Subject Property by Condemnation 89 Section 25.4 Adjustment of Minimum Annual Rent Upon Partial Taking 90 Section 25.5 Deposit of Condemnation Award with Escrow Agent 91 Section 25.6 Rights of Leasehold Mortgagee 91 Section 25.7 Temporary Taking 91 ARTICLE XXVI DEFAULT PROVISIONS Section 26.1 Events of Default by Lessee 92 Section 26.2 Remedies in Event of Lessee's Default 93 Section 26.3 Waivers and Surrenders to be in Writing 94 98- 879 Section 26.4 Rights of Leasehold Mortgagee Upon L,essee's Default 94 Section 26.5 Events of Default by Lessor 94 Section 26.6 Mitigation 95 ARTICLE XXVII INVALIDITY OF PARTICULAR PROVISIONS Section 27.1 Invalidity of Provisions 95 ARTICLE XXVIII QUIET ENJOYMENT Section 28.1 Quiet Enjoyment 96 ARTICLE XXIX LESSOR'S TITLE AND LIEN Section 29.1 Title of Leased Property 96 Section 29.2 Lessee Not to Encumber Lessor's Interest 98 ARTICLE XXX REEWBURSEMENT OF CITY EXPENSES Section 30.1 Reimbursement of City Expenses 98 ARTICLE XXXI LVA]TATION OF LIABILITY Section 3 1. 1 Limitation of Liability of Lessee 98 ARTICLE XXXII ESTOPPEL CERTIFICATES Section 32.1 Estoppel Certificates . 99 ARTICLE XXXM REMEDIES CUMULATIVE Section 33.1 Remedies Cumulative 100 Section 33.2 Waiver of Remedies Not to be Inferred 100 ARTICLE =UV SURRENDER AND HOLDING OVER Section 34.1 Surrender at End of Term 100 Section 34.2 Rights Upon Holding Over 101 ARTICLE XXXV SUBLEASES Section 33.1 Subleasing 101 Section 35.2 Nondisturbance and Attotnment 101 ARTICLE XXXVI FINANCIAL STATEMENTS Section 36.1 Financial Statements 102 ARTICLE X3IXVII MODIFICATION Section 37.1 Modification 102 ARTICLE XICIVIII CONVEYANCE BY LESSEE TO LESSOR Section 38.1 Conveyance by Lessee to Lessor 103 -v- 98- 879 ARTICLE XXXDiC APPLICABLE LAW Section 39.1 Applicable Law ARTICLE XL Section 40.1 Section 40.2 Section 40.3 Section 40.4 ARTICLE XLI Section 41.1 Section 41.2 Section 41.3 Section 41.4 Section 41.5 ARTICLE XLII Section 42.1 Section 42.2 Section 42.3 ARTICLE XLIII Section 43.1 NOTICES Manner of Mailing Notices Notice to Leasehold Mortgagees Sufficiency of Service When Notice Deemed Given or Received MISCELLANEOUS PROVISIONS Captions Conditions and Covenants Entire Agreement Time of Essence as to Covenants of I as Agreement Recording. Documentary Stamps 103 103 104 105 105 105 105 105 106 106 MINORITY AND WOMEN'S BUSINESS AGREEMENT Minority and Women Participation 106 Equal Employment Opportunities 107 Affirmative Action 107 COVENANTS TO BI1riD AND BENEFIT RESPECTIVE PARTIES AND TO RUN WITH THE SUBJECT PROPERTY Covenants to Run with the Subject Property 108 ARTICLE XLIV UNAVOIDABLE DELAY Section 44.1 Unavoidable Delay(s) 108 Section 44.2 Manner of Notice of Unavoidable Delay(s) and Conditions With Respect to Performance of Obligations 108 Section 44.3 Payment of Minimum Annual Rent and/or Percentage Rent in the Event of an Unavoidable Delay 109 ARTICLE XLV GENERAL PROVISIONS Section 45.1 Conflict of Interest 109 Section 45.2 Brokerage 110 Section 45.3 Assignability and Binding Effects 110 Section 45.4 Duplicate Originals 110 Section 45.5 No Third Patty Beneficiaries 110 Section 45.6 Authority 110 Section 45.7 Waiver of Jury Trial 111 Section 45.8 Attorney's Fees and Expenses 111 Section 45.9 Independent Parties 111 Section 45.10 No Liability for Acts of Other Parry 111 Section 45.11 Consents and Approvals 112 Section 45.12 Approval by the Oversight Board 112 -vi- 98 _ 879 EXff A - Sketch of Survey of Subject Property EXH[BIT B - Legal Description of Subject Property EX [BIT C - Conceptual Site Plan EXHIBIT D Environmental Permits EXHIBIT E - Possession Date Certificate EXHIBIT F - Florida Department of Environmental Protection Correspondence EXHIBIT G Florida Department of Community Affairs Binding Letter of Interpretation of Vested Rights EXHIIBIT H Minority and Women' Business Affairs and Procurement Program Ordinance and First Source Hiring Agreement (Note: Exhibits NOT attached herein to this Draft) _Vii- 98- 879 LEASE AND DEVELOPMENT AGREEMENT This Lease and Development Agreement (the "Lease" or "Lease Agreement") made as of the , 1997, by and between the City of Miami, a municipal corporation of the State of Florida acting by and through the City Manager (the "City Manager"), and with the approval of the City Commission of Miami having its offices at 3500 Pan American Drive, Miami. Florida 33133 ("Lessor" or "City") and Grove Harbour Marina and Caribbean Marketplace, L.L.C., a Florida Limited Liability Company, composed of Harbour Management Group, Inc. and Southern Cross Marinas, L.L.C., having its offices at 3191 Coral Way, 3td Floor, Miami, Florida 33145 ("Lessee"). STATEMENT OF BACKGROUND AND PURPOSE The City is owner, in fee simple, of all that certain land located in the City of Miami, Dade County, Florida, which is known as and referred to herein as the "Subject Property" located in the area of Miami known as Dinner Key. For the purpose of this Lease, the Subject Property consists of the following three (3) parcels containing 13.55 acres, more or less, shown on the sketch of survey attached as Exhibit A and legally described in Exhibit B: A. Parcel A Upland containing 6.95 acres, more or less; B. Parcel A Submerged Land containing 4.32 acres, more or less; and, C. Parcel B Submerged Land containing 2.29 acres, more or less. Pursuant to the authority expressly conferred in the City of Miami Charter, and general law, the City Commission on May 23, 1996, adopted Resolution No. 96-360 which authorized the publication of a Request for Proposals ("RFP") for the development of a multiple use facility including commercial and recreational uses, including, a full service boat yard, marina, marine related retail it and a public market with adaptive reuse of two existing historic hangar structures on a 13.55 acre site (6.95 upland acres and 6.6 submerged acres) at the Subject Property in Dinner Key. Lessee submitted a proposal on August 30, 1996 (the "Proposal") which was determined by the City to be responsive to the RFP. The City Commission on July 23, 1997,