HomeMy WebLinkAboutR-93-0265J-93-276
4/15/93
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RESOLUTION NO.
A RESOLUTION, +WITH ATTACHMENT(S), AUTHORIZING
1.
THE CITY MANAGER TO EXECUTE A LEASE
-'
AGREEMENT, IN SUBSTANTIALLY THE ATTACHED
FORM, BETWEEN THE CITY OF MIAMI AND GUSMAN
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CENTER PARTNERS, LTD., FOR THE UNIFIED
DEVELOPMENT, INCLUDING THE PLANNING AND
DESIGN, CONSTRUCTION, LEASING AND MANAGEMENT,
OF A RESIDENTIAL FACILITY WITH ANCILLARY
RETAIL USES AT THE OLYMPIA BUILDING LOCATED
AT 174 EAST FLAGLER STREET, MIAMI, FLORIDA,
SUBJECT TO THE CONDITION THAT THE TERMS OF
=
THE LEASE AGREEMENT RESULT IN A FAIR RETURN
TO THE CITY AND FURTHER SUBJECT TO RECEIPT IN
ACCEPTABLE FORM OF ALL DOCUMENTS REQUIRED BY
THE CITY MANAGER AND THE CITY ATTORNEY.
WHEREAS, the Board of Directors of the Department
of Off -
Street Parking
of the City of Miami ("DOSP"), on July
29, 1992
voted to
recommend to the City Manager that it is in
the best
interest
of the Gusman and Olympia Enterprise Fund
to seek
proposals
from private parties to redevelop the Olympia Building;
and
WHEREAS, the City Commission determined on October 8, 1992,
that it is advantageous to the City to develop the Olympia
Building, which consists of a parcel containing approximately
forty-five thousand (451,000) square feet at 174 East Flagler
Street, Miami, Florida, (the "Olympia Building") as a unified
development project, and authorized the issuance of a request for
proposals, selected a certified public accounting firm and
appointed members of a review committee; and
ATTACHMENTS)
CONTAINED
WHEREAS, the request for proposals for the unified
development project contained evaluation Criteria to be used by
the certified public accounting firm and the review committees
and
WHEREAS, one proposal was received by the City in a response
to the request for proposals on January 22, 1993, the published
date for receipt of said proposals; and
WHEREAS, the certified public accounting firm's report to
the City Manager analyzed the proposal based on the financial
viability of the proposed development team and its proposed
financial strategies, assessed comparatively the short and long-
range economic and fiscal returns to the City, assessed the
proposer's market analyses and conclusions regarding the mix of
uses for the facility, evaluated the economic feasibility of the
proposed development, and rendered its written report to the City
Manager; and
WHEREAS, the review committee received the presentation of
the proposer
and input
from
the
public,
and, after
extensive
analysis and
discussion
of
the
proposal,
tendered
a written
'i
report to the City Manager containing an evaluation of the
proposal based on the specific evaluation criteria included in
the request for proposals; and
—� WHEREAS, the City Manager, taking into consideration the
i
findings of the certified public accounting firm and the -
evaluation of the review committee, recommended the acceptance of
the Gusman Center Partners, Ltd. proposal for the unified
- development of the Olympia Building; and
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WMEAS, the City Co mission, pursuant to fteeolutlOft
No. 93-179 dated March 11, 1993, conditionally accepted, subject,
among other prerequisites, to the subsequent approval of a
contract, and without granting any vested rights or other right#
title or interest of any kind to the proposer, the amended
proposal of Gusman Center Partners, Ltd., for the unified
development, including planning and design, construction, leasing
and management, of the Olympia Building, for residential and
ancillary retail use (the "Development") and authorized and
directed the City Manager to negotiate a proposed contract with
Gusman Center Partners, Ltd., for said Development, such proposed
contract to provide for rental payments to the City to be a
percentage of gross revenues of the Development, subject further
to the requirements set forth in the Request For Proposal and in
the City Charter; and further directing the City Manager to
present the negotiated proposed contract to the City Commission
as soon as practicable for consideration and, if deemed
acceptable by the City Commission, approval and award of the
final contract by the City Commission prior to the execution
thereof; and
WHEREAS, the City Manager has negotiated in good faith with
Gusman Center Partners, Ltd.; and
WHEREAS, the City Manager recommends that the
City_
Commission authorize the execution of the proposed Lease
Agreement, which agreement provides for the Development of the t
Olympia Building, in substantially the form attached, subject to
the condition that the terms of the Lease Agreement result in a
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NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OP 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 authorised to s
execute a Lease Agreement, in substantially the attached form, G=
between the City of Miami and Gusman Center Partners, Ltd. for
the unified development, including the planning and design,_
construction, leasing and management, of a residential facility
with ancillary retail uses at the Olympia Building located at 174
East Flagler Street, Miami, Florida, subject to the condition
that the terms of the Lease Agreement result in a fair return to
the City, and further subject to the receipt by the City of Miami
of all documents deemed necessary by the City Manager and the -
City Attorney in a form acceptable to the City Attorney.
Section 3. This Resolution shall become effective
immediately upon its adoption.
:;r
PASSED AND ADOPTED this 15th day of April r
AT,WSTt
iTY HIRAI
CITY CLERK
PREPARED AND APPROVED BY:
IRMA M. ABELLA
ASSISTANT CITY ATTORNEY
APPROVED AS TO FORM AND CORRECTNESS:
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LEASE AGREEMENT
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between
THE CITY OF MIAMI, a municipal corporation
of the State of Florida
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and
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GUSMAN CENTER PARTNERS,
a Florida Limited Partnership
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LEASE AGREEMENT
THIS LEASE AGREEMENT (this "Lease") made as of the lot day
of May, 1993(the "Effective Date"), by and between THE CITY OF
-
MIAMI, a municipal corporation of the State of Florida
_
(hereinafter referred to as "City"), and GUSMAN CENTER PARTNERS,
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a Florida Limited partnership (hereinafter referred to as
"Developer").
STATEMENT OF BACKGROUND AND PURPOSE
City as owner, leases to Developer, in "AS IS" condition,
the land and improvements described in Exhibit "A" attached
_
hereto and made a part hereof (the "City Property"). The Gueman
Center for the Performing Arts, (the "Theater"), the Theater
-
lobby, the second floor, and the alley running behind the
Theater, all of which are highlighted in Exhibit "A % are not
part of the City Property.
Developer proposes to develop a mixed -use project,
—
consisting of retail and residential (affordable housing) uses,
(hereinafter referred to as the "Project"). The Project, as it
presently exists, is a ten (10) story office building which,
—
together with the adjacent Theater, is listed in the National
Register of Historic Places. The Developer will improve,
_
renovate, restore and reconstquct this prominent historical
landmark as part of the Project (the "Development"). The Project
>:—
shall consist of the following improvements, more fully described
in the plans and specifications identified on Exhibit "8"'
attached hereto: `=
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(a) A retail area, containing approximately 5,400 square
feet including 1500 square feet of retail space at the messanine
level;
-
(b) 96 affordable housing rental unite, containing
approximately 39,000 square feet, (hereinafter collectively
referred to as the "Housing 'Units").
(c) The developer shall use its best efforts to provide
-
roof -top facilities, including but not limited to a community
-
room, physical fitness facilities and an outside deck and spa for
use by tenants of the City Property.
in consideration of the foregoing and of the rent,
covenants, and agreements hereinafter set forth, the parties do
hereby covenant and agree as follows:
ARTICLE I
=
INCORPORATION AND RECITAL
The recitals contained in the statement of background and
purpose of this Lease are hereby incorporated herein. and made a
8
part hereof.
ARTICLE II
EXHIBITS AND DEFINITIONS
Section 2.1 Exhibits. Attached hereto and forming a part
of this Lease are the following exhibits:
Exhibit A - Description of the City Property.
Exhibit B - Plans and Specifications for the Project,
i
Exhibit C -
a Exhibit D
Exhibit E
Exhibit P
Section 2.2
.. Easements
- Request for Proposals
Proposals submitted by the Developer
Defined Terms. As used herein, the terms
,Acceptable Operator" means C.M.
Properties or an entity
experienced in building management,
possessing the
qualifications, good reputation, financial resources and adequate
personnel necessary for the proper performance of all of
Developer's obligations under this Lease, in a manner consonant
with the quality, reputation and economic viability of the City
Property and Improvements, as defined herein below.
"Acceptable Operator's Aclreement" has the meaning ascribed
to it in Section 7.1(c)(iv).
"Acceptable Purchaser" has the meaning ascribed to it in
Section 6.3(b).
"Additional Rental" means any and all payments required of
Developer to the City by the terms of this Lease, other than
Rental.
"Audited Financial Statement" means a financial statement,
certified by the Auditor to have been prepared in accordance with
Generally Accepted Accounting Principles and Generally Accepted
Auditing Standards, as promulgated by the American Institute of
Certified Public Accountants.
"Auditor" means a nationally recognized firm of certified-
= public accountants as may be used from time to time by the
Developer for the purpose of certifying the -annual reports of its
financial condition required by law.
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"the City Manager" is the Chief Executive Officer of the
Cityi br its designee.
"Construction Plans" has the meaning ascribed to it in
Section 4.2
"Debt Service Payments" means all sums or amounts paid or
parable during the term of this Lease in connection with Any
transaction entered into to finance the Project. -
"Default Rate" has the meaning ascribed to it in Section
3.5(d).
"Development Team" shall mean all of those persons or
entities set forth on Exhibit C. Any change in the Development
Team shall require prior written approval of the chief
legislative body of the City (the "City Commission").
"Development Costs" means an amount equal to the aggregate =
of all costs and expenses actually incurred by Developer for the
purpose of and properly allocated to the Development, including
(without limitation or duplication)_
(1) Design, planning, architectural and engineering fees,
-
costs and expenses, presentation costs and expenses, surveys and =_
geotechnic tests, testing and inspections, and design consulting '-
costs; -
(2). The costs of labor, equipment, supplies, materials and
services paid to contractors and subcontractors utilized in
connection with the Development;
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(3) Fees and expenses paid to contractors and
subcontractors;
(4) Legal and accounting costa, fees and expenses;
Fr
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(5) interest and other financing costs incurred with
respect to the issuance and sale by the Developer of tax credits*
including all required reserve accounts and funds; interest*
commitment fees, points and other financing costs incurred in
arm's length transactions;
(6) The cost of property, liability, worker's compensation
title and other insurance;
(7) The cost of obtaining permits and licenses;
_-
(8) Utility relocation costs and expenses and tap -in fees
or other fees including those of City for connection to utility
systems and utility services during construction;
(9) All reasonable and prudent costs and expenses incurred
in connection with the negotiations and execution of this Lease;
(10) The allocable portion of the salaries, fringe benefits,
payroll taxes, travel and other expenses;
(11) The allocable cost of pre -opening management,
advertising and publicity and the allocable cost of any opening
•
event, including advertising and publicity of same
(12) Other reasonable costs and expenses which are of a type
usually and customarily incurred in connection with development
of low-cost housing.
"Events of the City's De€gglt" has the meaning ascribed to
it in Section 8.3(a).-
"Events of Developer's Default" has the meaning ascribed to
4-
it in Section 8.1.
"Gross Revenue" shall mean Operating Income (as defined in
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this section of this Lease).,
93- 265
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"ImoroVements" shall moan all existing and future structures
at the City Property-
olhatitutiohal tAveator" has the meaning ascribed to it in
Section 7.1(b).
"Insurance Trustee" has the meaning ascribed to it in
Section 10.8(a)(ii).
,,Leasehold Mortgage" has the meaning ascribed to it in
Section 7.1(b).
"Lender" has the meaning ascribed to it in Section 7.1(b).
"Management Costs" means (without duplication) Developer's
reasonable and prudent costs of performing management services
for the City Property, which services shall include the
followings (i) formulation of all budgets for operation of
the City Property; (ii) Keeping books of account, auditing such
books at least annually, preparation of financial statements to
be submitted to the City showing the performance and condition of
the City Property, and supervision of the payment of all
obligations related to the operation of the City Property; (iii)
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development of programs for the promotion of the City Property
(including advertising and publicity programs); (iv) management
of the City Property, including all normal legal fees, accounting
and auditing fees and the salaries, benefits and expenses of all
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personnel related to the supervision and admi'nistration'-;o*f
management' services including all supplies and materials
required in connection therewith; and (v) all reasonable on -site
costs and expenses relating to on -site managers, assistant"
manager, marketing director and bookkeeper, incidental' otit 'of
"Z. AIV
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pocket costs (including but not limited to office :supplies,
telephone, stationery, postage and duplication), market research
and analysis and consumer surveys, legal and other proceedings
-
involving public Charges, outside CPA audits relating to the City
Property, plans for minor alteration of the City Property, and
proceedings relating to condemnation or eminent domain.
"Operating Expenses" means (without duplication) (1) all
reasonable and prudent expenditures for the Improvements,
-
according to the then current standards of the industry accounted
for by the accrual method in accordance with generally accepted
accounting principles, made by the Developer or which the
Developer is obligated to make in the operation, ownership or
management of the City Property and the Improvements or any part
=
of either, including (without limitation) payroll and payroll
expenses, management fees, business taxes and Public Charges,
supplies, license and permit fees, repair and maintenance
—
expenses, costs and expenses of cleaning, maintaining and
repairing the common area and City Property, utility charges,
insurance premiums, auditing and professional fees and expenses,
publicity costs and expenses, and (2) Rental. In no event shall
depreciation constitute a portion of Operating Expenses,
Operating Expenses shall inclufe the funding of one elevator
operator position, in an amount no less than Sixty-five Thousand
Dollars ($65,000) on an annual basis and City shall supply one
elevator operator, until such time as the manual elevators are
replaced by an automatic system. Developer shall operate the
elevator on a 24-hour a day basis until such time as construction`
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activity prevents further operation of the elevator.
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,,Operating or Grass Income" means all moneys, paid or
payable to Developer from rental income transactions made and for
services rendered by Developer in the operation of the
Improvements, regardless of when or where the services are
rendered including (without limitation) all rental income from
retail and residential uses, fees, all income derived from
vending machines, telephones, laundries or other sources located
on the City Property without reduction for uncollectable account
receivables. If Developer shall receive insurance or condemnation
proceeds or awards, the amount thereof which represents
reimbursement to Developer for items accounted for as Operating
Expenses shall be deemed to be Operating Income.
"Operating Losses" means the amount by which Operating
Income for the applicable period is less than Operating Expenses,
for the same period.
"Owner" has the meaning ascribed to it in Section 6.1(b).
"Possession Date" has the meaning ascribed to it in Section
3.1(c).
"Public Charges" has the meaning ascribed to it in Section
3.6.
"Rental" has the meaning ascribed to it in Section 3.5(c)._
"Rental Year" means a fisc#1 year consisting of twelve (12)
�x-
consecutive calendar months beginning on October 1 and ending on
September 30 of each year of this Lease. The first Rental Year
- during the term of this Lease shall commence on October 1, 1993.
In the event the Possession Date occurs prior to October 1, 1993,
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the Rental due and payable shall be apportioned therefor. The
end of the last full Rental Year shall be September 30, 2033.
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93- 25
"Section", "Subsection", ° Paragraph" ► "Subparagraph",
"Clause", or "Subclause", followed by a number or letter, means
the section, subsection► paragraph, subparagraph, clause or
subclause of this Lease so designated.
"Transfer" has the meaning ascribed to it in Section 6.1.
ARTICLE III
GENERAL TERMS OF LEASE OF CITY PROPERTY
Section 3.1 Lease of City Property
(a) City.- Property. The City demises and leases to
Developer, and Developer takes and leases from the City, in "AS
IS" condition, the City Property, subject to the terms of this
Lease, including but not limited to Section 3.5(a), herein.
(b) Term. The Lease shall have a term of forty (40) years,
commencing on Possession Date, as said term is defined
hereinbelow.
(c) Possession of City Pro22rty. The date that the City
delivers the City Property to Developer in accordance with this
subsection (c) is the Possession Date (the "Possession Date"). ;n
The City shall deliver possession of City Property to Developer (-
and Developer shall take possession thereof, no later than
October 1, 1993, subject to the requirements set forth in
subparagraphs (i), (ii), (iii)and (iv), or this Lease shall-
automatically terminate without notice of any kind. '-
E:
(i) The City Manager shall have received and approved
evidence satisfactory to the City Manager that Developer shall`
have entered into final and binding agreements for the financing_ _-
of Development Costs with a Leasehold Mortgagee and that -
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Developer shall have obtained a commitment or commitments, on
terns and
in form satisfactory
to City, for
the sale
of
tart
credits or
notes for construction
and longterm
financing
of
the
Improvements*
(ii) The City Manager shall have received a Payment
and Performance Bond as set forth in Section 4.1 of this Lease
from Developer.
(iii) The City Manager shall have received a Payment
Guarantee in accordance with Section 3.5(f) of this Lease; and
(iv) The City Manager shall have approved a
Construction Schedule in accordance with Section 4.2 of this
Lease.
However, notwithstanding the above, if Developer fails to
take possession by October 1, 19930 this Lease shall be
automatically terminated, without notice of any kind.
Section 3.2 Restrictive Covenants. The restrictive
covenants contained in Paragraphs (a), (b), (c) and (d) of this
`s�
Section 3.2 are intended and designed to bind the Developer and-P—
its successors and assigns and are covenants running with the
City Property throughout the term of this Lease. The parties
—
recognize, however, that the development and operation of the
City Property and the Improvemehts in a manner which i's in the
best interests of both parties may from time to time require the
confirmation, clarification,or elaboration of this Lease in
order to deal adequately with circumstances which may not now be
foreseen or anticipated by the parties. The parties reserve unto.
themselves the right to enter into such
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implementing or confirmatory agreements from time to time as they
may deem necessary or desirable for any such purpose without
obtaining the consent or approval of any person or entity not a
party to this Lease, except as may be expressly otherwise
provided in this Lease, or by law.
(a) Use Prohibitions of the City Property. The City
Property hereby demised shall not be used for any unlawful or
illegal business, use or purpose, or for any business, use or
purpose which is immoral or disreputable or extra -hazardous, or
in such manner as to constitute a nuisance of any kind (public or
private), or for any purpose or in any way in violation of the
certificates of occupancy (or other similar approvals of
applicable governmental authorities). Parties hereto agree that
in the event casino gambling is legalized during the term of the
Lease the parties shall renegotiate the Rental to be not less =
than fifty (50%) percent of the Gross Income.
(b) Non Discrimination. No covenant, agreement, lease,
conveyance or other instrument shall be effected or executed by=
Developer, or any of its successors or assigns, whereby the City—
Property or any portion thereof is restricted by Developer, or=
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any successor in interest, upon the basis of race, color,—
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religion, sex, or national origin or disability in the lease, use !_
or occupancy thereof. Developer will comply with all applicable rt=
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federal, state and local laws, in effect from time to time,;
prohibiting discrimination or segregation by reason of race, .
color, religion, sex, or national origin or disability in the .-
lease or occupancy of the City Property.
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(c) Minority Procurement Compliance. Developer
acknowledges that it has been furnished a copy of Ordinance No.
10062, the Minority Procurement ordinance of the City of MiaMl
and agrees to comply with all applicable substantive and
procedural provisions therein, including any amendments thereto.
(d) Approval of Leases. All leases of space within the
Improvements are subject to prior written approval by the City
Manager. No Housing Unit shall be rented other than pursuant to a
current executed residential lease for a term of no less than one
year for said Housing Unit.
(e) Negotiation with Existing Retail Tenants. Developer
shall make a good faith attempt to negotiate retail leases with
the retail tenants at the City Property on the Possession Date.
Section 3.3 Easements and Areas Reserved to City
(a) Easements Granted to City. Developer grants to City —
the following easements and areas, as depicted on Exhibit D
attached hereto and made a part hereof.
(i) permanent easement to the lobby of the Project and
to all elevators;
(ii) permanent easement to the entire second floor of
the Project;
(iii) permanent easeiytnt to the roof -of the projection
booth and theater attic and to the projection booth;
(iv) contiguous storage space consisting of not less
than 1200 square feet on third floor of the Project, accessible
to the Theater.
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(v) area consisting of no less than 3000 square feet
as presently located on the sixth floor of the Project, at no
cost to the City, for office use by City until such time as the
construction of the Development requires said area to be vacated.
(vi) permanent access easements to the areas described
in subparagraphs (i), (ii), (iii), (iv) and (v) herein above.
(b) Limitations on Easement Rights. The rights and
easements granted or reserved in Paragraph (a) of this Section
3.3 shall be limited as follows:
(i) the party having the benefit of any such easements
(A) shall carry on any construction, maintenance and repair
_-
activity with diligence and dispatch and shall use its diligent
=
= efforts to complete the same in the shortest time possible, and
(B) shall not carry on any construction, maintenance or repair
- activity in the easement areas in such manner as to unreasonably
interfere with the use and enjoyment of the servient tenement
and, in carrying on such activities, will do so in such a manner
as not to unreasonably interfere with business or businesses then
- being conducted on the City Property by Developer or with events,
activities, or personnel in the adjacent Gusman Theater;
- (Li) all easements granted in this Lease to Developer
—
by City are subject to the fo4lowing: the Developer shall not
make use of any easement in a manner that may disturb the
-
adjacent Theater, any events or activities occurring therein, nor
any patron or Theater personnel of the Theater.
(c) Confirmatory Instruments. Each party covenants and
agrees that, from time to time, at the request of the other
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party, it shall execute and deliver such additional documents or
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instruments confirming the rights and easements granted and
reserved in this Section 3.3, or more precisely fixing their
location as such requesting party shall deem to be necessary or
desirable.
Section 3.4 No Warranty as to Title or Condition
of City Property.
The City does not represent or warrant that it has good and
merchantable fee simple title to the City Property nor to any of
the improvements thereon. Developer takes the City Property ".AS
IS", and no representations or warranties whatsoever are made as —
to the condition of the Project and the Improvements,
materials or other components thereof.
Section 3.5 Rental.
(a) Initial Payment. The Developer hereby agrees to pay to
= the City the non-refundable sum of Thirty Thousand Dollars
($30,000) on the Effective Date of this Lease, (the "Initial
Payment"). The Initial Payment represents costs of preparation
_
of the Request for Proposals ("R.F.P") for the Project and other
associated expenses payable by the Developer pursuant to the
-
- R.F.P•.
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(b) Second Payment. The Developer hereby agrees to pay to
�-
- the City the non-refundable sum of Fifty -Two Thousand and Eighty-
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Three Dollars ($52,083) on June 15, 1993, which amount represents
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five twelfths (5/12) of the Rental which the Developer has agreed
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to pay for the five (5) month period elapsing between the
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Effective Date and October lot, 1993.
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(c) Rental!
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(1) Mental shall be fifty percent (50%) of the cash
flow after payment of Operating Expenses, thirty and one quarter
of one percent (30.25%) of the Gross Income of the Project, or
the Minimum Mental, as hereinbelow defined, whichever is greater
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(the "Rental"). On October 1st, 1993, the Developer shall
commence payment of mental on a quarterly basis.
(2) The minimum annual rental shall be One Hundred and
Twenty -Five Thousand Dollars ($125,000) for the first Rental Year
x�
("Minimum Rental").__
(3) During each of the next three (3) years, the
Minimum Rental shall be increased in an amount of Twenty -Five
Thousand Dollars ($25,000.00) more per year each succeeding year
and shall be payable quarterly in advance.
(d) Rental Payments. Rental shall be payable without
notice or demand therefor and shall be paid to the City at the
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Office of the Executive Director of the Miami Parking System, 190
NZ. Third Street, Miami, Florida 33132, or at such other place as
the City Manager shall designate from time to time in a notice
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given pursuant to the provisions of Section 12.3(b). Any late
payment shall automatically accrue interest at the rate equal to
two (2%) percent above that rat, charged by the Citibank, N.A.,
of New York to its beat commercial customers, generally referred
to as its prime rate ("Default Rate") from the date that payment
was due. Any overpayment of Rental at the end of each Rental
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Year reported by Developer to City shall be paid to Developer.,
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within thirty (30) days of receipt of such report or, at the
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option of Developer► the Developer shall credit such mount to
the Rental due in the next Rental Year. if there is an
underpayment of Rental, Developer shall pay the City the amount
of the deficiency plus the Default Rate within thirty (30) days
of the City's receipt of the report.
(e) Operating Expenses. Commencing on Possession Date# all
Operating Expenses shall be paid by Developer.
(f) Payment Guarantee. on Possession Dace, ueveivper zaaLa
deliver to the City a Payment Guarantee (the "Payment Guarantee")
in a form acceptable to the City and drawn upon a financial
institution acceptable to and with offices in the City, in the
form oft
(i) Certificates
of Deposit properly assigned to the
City totalling six hundred and fifty thousand dollars,
($650,000), or
(ii) An irrevocable Letter of Credit in the amount of
six hundred and fifty thousand dollars, ($650,000).
upon receipt of each Rental
payment for years two (2) through five (5)
)—
of the lease, the Payment Guarantee
shall be reduced as follows: On Cobobar
' 1st, 1994s, by Sixty -TWO Thousand
Five fuxised Dollars ($62,500); an October
i
1st, 1995s, by Serve My Thousand
Dollars ($70, 000) ; on October let, 1996, by
Eighty-smm thousand Five Buidred
Dollars ($67,500); and on October let,
1997, by Four Hundred TMnty-Five ThOUBand Dollars ($425,000).
(g) pmelotmes Records.
For the purpose of pemnittirug verification by
s;
-
the City of any amounts due an
-_
account of Recital, Dev+aloper will keep and
-
.rip
pr'eOerm or CMI the
Operator to heap and preserve for at least
-
three (3) years in Dade Oounty,
Florida, at th9 address specified in SsctLOn
�_
16-
11I 9 _
265
q.�_
12.3, audits 16 original or duplicate books and records for the City PrOPOM.
After five (5) dqs advance notice to Developer, the City, through its City
hmcjer or its designee, shall gave the aright during business hours to inspeCt
such books and records and to makes any owdnatio n or audit thereof which the
City may desire. if such audit shall disclose a liability for Eifntal in
excess of the Vital theretofore paid by Developer for the period in question,
Developer shall promptly pay such Rental plus the Default Rate and if such
audit shall disclose an overpayment of the Rental heretofore paid, the City
shall prom ly return the excess to the Developer.
Developer further covenants and agrees to deliver to the City on a
quarterly basis, cameaenc:ing as of the Possession Date and within forty-five
(45) days after the termination of the Lease, a statement showing, in
reasonable detail, the ca+nputation of the Operating Inccxme, and Operating
F.sppes for the preceding calendar quarterr. The quarterly statement shall be
signed and verified by the Gweral Partner of Developer or certified by the
appropriate authorized officer of the Acceptable Operator, stating
specifically that such personm hog exuained the report, that such person' s
examinatiotm included such tests of time books and records as such person
considered ssidered necessary, under the cirru Stances, and that such report presents
fairly the Rental cues with respect to the preceding calendar quarter. If
Developer shell fail to deliver the foregoing statement to the City within
said period, or the City shall give w4ttts n notice of its desire to audit the
quarterly statements, the City shall have the right to either conduct an audit
itself or to employ an ittdepetmdsnt certified public accountant to exw ne such
books and reeds as may be necessary to certify the amount of the Rentals due
with respect to such calendar quarter. Developer shall pLulptly Pay to the
City, as Additional Rental, the most of any audit perfoxmsd by or for the
-17- 9 3 - 2
40
City, in the tit the City's audit %w in lieu of a quarterly rq= by
Developer or if the City audits the quarterly report at its otm initiative and
demonstrates a discrepatvy of more than three (3%) percent of mental.
Developer shall provide the City with an annual Audited
Financial Statement, certified by an independent Certified public
Accountant, within one hundred twenty (120) days after the close
of each Rental Year, which shall be subject to the audit
provisions of the previous subparagraph.
Section 3.6 Covenants for Payment of Public Charges
by Developer
Developer, in addition to the Rental, covenants and agrees
to pay and discharge, before any fine, penalty, interest or cost
may be added, all real and personal property taxes, all taxes on
rentals payable hereunder and under subleases, all taxes which
may be levied on the City Property and/or the Improvements as
well as sales, use, income and all other taxes which may be
imposed by a governmental authority, public assessments and
utility and other public charges, including but not limited to
electric, water and sewer, rates and charges (all such taxes,
public assessments utility charges and other public charges being i
hereinafter referred to as "Public Charges") levied, assessed or=
imposed by any public authority against the City Property,
e
including all Improvements thereon, including all connection and
A
installation charges, in the same manner and to the same extent j=
as if the same, together with all Improvements thereon, were
owned in fee simple by Developer; provided that Developer's
obligation to pay and discharge Public Charges levied, assessed
R
-ls- 93 - 2.5 'k
or imposed against or with respect to City Property shall not
commence until the Possession Date. Notwithstanding the
provisions of this Section 3.6, Developer shall have the right to
contest the amount or validity, in whole or in part, of any
Public Charges by appropriate proceedings. The City agrees to
consent to and/or formally join in any such proceedings to the -
extent it may be allowed by law, if such consent and/or joinder
be required by law for the prosecution thereof. Developer shall
pay all charges for electricity, metered water, sewer service
charges and other fees or charges, lawfully imposed by any public
authority upon or in connection with the City Property and the
Theater, subject to the following allocation formulae: for water
and sewer: fifty percent (50%) to Developer and fifty percent
(50%) to City; and for electricity: sixty three percent (631) to —
Developer and thirty-seven percent (37%) to City, until such time
as said fees and charges are separately metered. The City retains
all its rights to impose special assessments or other Public
ILL
Charges for all other purposes._
Developer, upon written request, shall furnish or cause to
be furnished, to the City Manager, official receipts of the
appropriate taxing authority, or other proof satisfactory to the
City Manager evidencing the paynpnt of any Public Charges, which
were delinquent or payable with penalty thirty (30) days or more
prior to the date of such request.
Section 3.7. Security and Police Protection. Developer;
it
shall provide all security and protection for the City Property'°
a
as may be reasonably required by City.
-19
•
Section 3.8. Condition of City Property. On the Possession
]Date the City shall deliver to the Developer possession of the
City Property. Prior to the Possession Date, the City Property
shall be maintained by the City in "AS IS" condition.
ARTICLE IV
DESIGN AND CONSTRUCTION
Section 4.1 Payment and Performance Bond
On Possession Date, Developer shall deliver to City a
Payment and Performance Bond in an amount equal to not less than
one hundred and twenty five percent, 125%, of the Development
Cost of the Project, in a form, from a surety, and in an amount
acceptable to the City, the City Attorney and the insurance -
Manager, and which shall comply with Florida Statute 255.05, as
amended.
Section 4.2 Construction Schedule; Preliminary and
Construction Plans. Developer shall submit a construction
schedule (the "Construction Schedule") to the City Manager for
its written approval thirty (30) days prior to the anticipated
Possession Date. The City Manager shall review same and shall_
j-
within twenty (20) days give Developer written notice. of its
j
approval or disapproval, setting forth in detail its reasons for
any disapproval. In the event4 City Manager disapproves the
Construction Schedule, Developer shall submit a revised
Construction Schedule to the City Manager within ten (10) days of
receipt of City Manager's disapproval. Failure to submit such
revised Construction Schedule within such ten (10) day period
shall constitute an Event of Developer's Default (as hereinafter <;
- 20�- s
-
n
defined within this Lease). Developer shall submit the
Preliminary Plains and Construction Plans ("the Plans") to the
City Manager for written approval on or before the time set forth
for same on the Construction Schedule. in the event of a
disapproval, Developer shall, within fifteen (15) days of the
date the Developer receives the notice of such disapproval,
resubmit such Plans to the City Manager, altered to satisfy the
grounds for disapproval. Any resubmission shall be subject to
review and approval by the City Manager.
Section 4.3 Construction Plans. For the purpose of this
Lease, "Construction Plans" shall consist of final working
drawings and specifications, including (without limitation) the
following information: (a) definitive architectural drawings;
(b) definitive electrical and mechanical drawings; (c) final
specifications and shop drawings; and (d) graphics.
No approval by the City Manager of any Plans pursuant to
this Article shall relieve Developer of its obligation to submit
such Plans to any department of the City or any other
governmental authority having jurisdiction over the issues or to
obtain any building or other permit or approval required by law.
Developer acknowledges that any
approval given by the City_
pursuant to
this Article IV sh*11 not constitute an opinion or
agreement by
the City that the Plans
are structurally sufficient-
or in compliance with an laws,
p y
codes or other applicable
PP
'=
regulations,
and no such approval shall impose any liability on
or waive any
rights of the City.
Section
4.4. Access:
(a) Prior to delivery of possession of the City
Property to Developer, the City, subject to the City Manager's
prior approval, shall permit Developer access thereto for
inspections.
(b) The Developer shall permit the City Manager to
enter the City Property at any time for any purpose the City y
a
deems necessary.
Section 4.5. Progress of Construction. Subsequent to the
�y
delivery of possession of the City Property to Developer, and
until construction of the Improvements have been completed*=
Developer shall keep the City Manager apprised, on a monthly
basis, of the progress of Developer with respect to such
development and construction. All such construction shall be in
accordance with the Construction Schedule.
Section 4.6. Permits and Approvals. Developer shall secure
and pay for any and all permits and approvals necessary for
proper construction and completion of the Project, and all costs -
and -expenses in connection with same shall be borne by Developer.
Developer shall secure any and all permits and approvals,
required to perform any and all of the work or operations _
contemplated to be done or performed under any of the provisions
of this Lease, including but no#s limited to, any alterations and
renovations made pursuant to Section 4.9 hereof, and shall,pay
all required fees and charges in connection with the issuance off
any permits and approvals.
Section 4.7. Compliance with Law. Developer 'shall comply
in every respect with any and all federal, state, county and -
..2Z-
93 a fi , �f.
LE
municipal laws, ordinances, codes, rules, regulations and notices
now or hereafter in force or issued which may be applicable to
i
any and all of the work or operations to be done, performed, or
carried on by Developer hereunder. Nothing herein contained shall
be deemed to limit the right of Developer to contest the validity
or enforceability of any statute, law, ordinance, code, rule,
regulation, order or notice with which Developer may be required
s
to comply.
-A
Section 4.8 Extension of Time Requirements. The times
—1
A
within which Developer must submit the Plans, and the times
within which Developer must commence and complete the development
_i
of the City Property and the construction of the Improvements
thereon as specified in this Article may be extended in writing
by the City Manager in its sole discretion, for such periods of
time as it deems advisable, for good and sufficient cause shown
by the Developer to the satisfaction of the City Manager.
Section
4.9 Alterations
and Renovations. After
the
completion of
construction of
the Improvements, Developer
from
time to time may make such alterations or renovations thereof as
it shall deem desirable subject to the prior written approval of
the City Manager; provided, however, that no renovation or -_
alteration which affects the ex#erior appearance of the Project
or substantially affects the overall character and appearance of
any public circulation area shall be made until such time as the
City Manager shall have approved, in writing, definitive
construction plans and specifications therefor. Developer must_
secure and n for an and all permits and approvals required to
pay Y Pe PP � `-
ti#
perform any of the contemplated alterations or renovations. x_
-Z3-
�j
ARTICLE V
LAND USES
Section 5.1 Uses. Developer and the City agree, for
themselves and their successors and assigns, to devote the City
Property exclusively to the uses specified in the Lease and to be
bound by and comply with all of the provisions and conditions of
this Lease.
ARTICLE VI
TRANSFER ASSIGNMENT
Section 6.1. Definitions. As used herein, the term: -
(a) "Transfer" means: _
(i) any total or partial sale, assignment or
conveyance (other than by a Leasehold Mortgagee) or any trust or
power, or any transfer in any other mode or form of or with
respect to this Lease or of the leasehold estate in the City
Property or any part thereof or any interest therein, or any
_
contract or agreement to do any of the same;
(ii) any merger, consolidation or sale or lease of all
or substantially all of the assets of Developer or of any Owner.
(b) "Owner" means:
4-
(i) any person, firm, corporation or other entity
-
which owns, directly or indirectily, legally or beneficially, one
(1%) percent or more of the stock of the General Partner of
''W"A
Developer or other form of ownership interest of the Developer;
and
zu -
t
-24-
9-- 2+
s
(ii) any person, firm, corporation or other entity
which owns, directly or indirectly, legally or beneficially, More
than fifty (50%) percent of the stock of the General Partner of
Developer or other form of ownership interest of any entity
described in clause (i) or this clause (ii).
_
Section 6.2 Purposes of Restrictions on Transfer. This
Lease is granted to Developer solely for the purpose of
Development of the City Property and its subsequent use in
accordance with the terms hereof, and not for speculation or
_
landholding. Developer recognizes that, in view of:
_
(a) the importance of the Development of the City Property
to the general welfare of the community;
(b) the fact that a transfer of the stock of the General
Partner of Developer, or a substantial part thereof, or any other
act or transaction involving or resulting in a significant change
in the ownership or distribution of such stock or with respect to
the identity of the parties in control of Developer or the degree
thereof, is for practical purposes, a transfer or disposition of
the leasehold interest in the City Property then owned by
Developer, and that the qualifications and identity of Developer
+
and any owner are of particular concern to the community and the
{-
City. Developer further recogn*es that it is because of such
qualifications and identity that the City is entering into this
i
Lease with Developer, and, in so doing, is further willing to
}
accept and rely on the obligations of Developer for the faithful
performance of all undertakings and covenants by it to be
performed.
-25-
Section 6.3 'Transfers. Developer, on behalf of itself and
all Owners, represents and warrants that neither Developer nor
any Owner has made, created or suffered any Transfers. Except as
permitted pursuant to subparagraphs (a) and (b) hereof, no
Transfer may be made, suffered or created by Developer or any
Owner. The following Transfers shall be permitted hereunders
(a) Any Transfer directly resulting from the foreclosure of
a Leasehold Mortgage or the granting of a deed in lieu of
foreclosure of a Leasehold Mortgage or any Transfer made by the
purchaser at foreclosure of a Leasehold Mortgage or by the
grantee of a deed in lieu of foreclosure of a Leasehold Mortgage,
provided that such purchaser or grantee is an Institutional
Investor or an agent, designee or nominee of an Institutional
Investor which is wholly owned or controlled by an Institutional
Investor, and that such purchaser or grantee, within six (6)
-
months after taking possession of the Project, shall have entered
—
j�_
into an Acceptable Operator s Agreement, as described in
Subsection VII. 1(c)(iv) of this Lease.
(b) Any Transfer to a purchaser having a good reputation
—
and financial resources to own the leasehold interest and to
operate and manage the Project in the reasonable opinion of the
City Com®ission that shall h%ve entered into an Acceptable
Operators Agreement (an ~Acceptable Purchaser").
Any consent to a Transfer shall not waive any of the City's
rights to consent to a subsequent Transfer. Any Transfer made in
violation of the terms hereof shall be null and void and of no
_
force and effect.
-26-
Section 6.4 Notice of Transfer Information
as to Shareholders
(a) With respect to any Transfer which must be approved by
the City, Developer shall give to the City written notice
(including all information necessary for the City to make an
evaluation of the proposed Transfer according to the requirements
of this Lease) of any requested Transfer, not less than sixty
(60) days prior to the date of the proposed Transfer and the City
Commission shall, after a public hearing by the City Commission,
advise Developer if it shall consent to same. if the City is not
required to consent to a Transfer pursuant to the terms hereof,
Developer shall notify the City in writing of same within thirty
(30) days after the date of Transfer.
(b) Developer shall from time to time throughout the term
of this Lease as the City shall reasonably request, furnish the
City with a complete statement, subscribed and sworn to by the
General Partner of Developer, setting forth the full names and
addresses of holders of partnership interests in Developer, and
the extent of their holdings, and in the event any other parties
have a beneficial interest in such stock, their full names and
i
addresses and the extent of such interest as determined or
indicated by the records of Developer, by inquiry which such
officers shall make of all patties who on the basis of such
records own one (1%) percent or more of the ownership interest of
Developer or by such other knowledge or information as such
general partner shall have.
Section 6.5 Effectuation of Certain Permitted Transfers
There shall be no Transfer other than that described in
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93- 265
Section 6.3(a) of this Lease without prior approval by the City
Commission after a public hearing. No Transfer of the nature
described in Subsection (b) of Section 6.3 of this Lease shall be
effective unless and until the entity to which such Transfer is
made, by instrument in writing satisfactory to the City Manager
and in recordable form shall expressly assume all of the
obligations of developer under this Lease and agree to be subject
WIN to all conditions and restrictions to which Developer is subject;
provided, however, that any Leasehold mortgage transferee shall
not be required to assume any personal liability under this Lease
with respect to any matter arising prior or subsequent to the
period of such transferee's actual ownership of the leasehold
estate created by this Lease (it being understood, nevertheless,
that the absence of any such liability for such matters shall
not impair, impede or prejudice any other right or remedy
available to the City for default by Developer); and provided,
further, that the fact that any such transferee of, or any other -
successor in interest whatsoever to, the leasehold estate in the
City Property or the Improvements, or any part thereof, shall not
?_
assume such obligations or so agree, shall not (unless and only
to the extent otherwise specifically provided in this Lease or
6
agreed to in writing by them City) relieve or exempt such
transferee of or from such obligations, conditions or
restrictions, or deprive or limit the City of or with respect to
any rights, remedies or controls with respect to the leasehold
'-
estate in the City Property or the construction of the
:xt
Improvements.
�
A( [J�
oow V 4V 265
ARTICLE 'III
MORTGAGEE FINANCING; RIGHTS OF MORTGAGEE
Section 7.1 Leasehold Mortgage
-
(a) Notwithstanding the provisions set forth in Article VI
hereof regarding any Assignment of this Lease, but subject to the
-
provisions of this Article VII, provided that an Event of Default
has not occurred and is not continuing, Developer shall have the
right at any time and from time to time to encumber the leasehold
-
estate created by this Lease and any Improvements by a Leasehold
Mortgage, as defined below including, without limitation, an
assignment of the rents, and profits from the City Property and
Improvements to secure repayment of a loan or loans wade to
Developer by an institutional Investor (As defined below) for the
sole purpose of securing the financing of the construction of any
Improvements made pursuant to the terms of this Lease or for the
long-term financing or refinancing of any such Improvements: In
no event may the amount of such financing or refinancing exceed
Development Costs. Developer shall deliver to City, promptly
_
after execution by Developer a true and verified copy' of any
'-
Leasehold Mortgage, and any amendment, modification or extension
thereoftogether with the name and address of the owner and
holder thereof.
-
(b) For purposes of this Article VII: "Institutional
Investor" shall mean any national bank organized under the Taws
of the United States or any commercial bank, or any savings and
loan association, savings bank, trust company or insurance'
company organized under the laws of the United States or 'any
s'
rk
r' F
-29-
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93- 265`
}-
8 n:
r
0
state of the United States, or any pension, retirement or welfare
trust or fund supervised by a government authority of any state
or the United States or any such trust or fund administered by an
entity which is supervised by a governmental authority,
'Leasehold Mortgage,, shall mean a mortgage, deed of trust or
assignment of the rents, issues and profits from the Leased
-
Property and Improvements, which constitutes a lien on the
leasehold estate created by this Lease and on the fee interest of
_
Developer in any Improvements during the term of this Lease; and
"Lender" shall mean an Institutional Investor who is the owner
and holder of a Leasehold Mortgage; provided, however, that the
-
City shall have no duty or obligation to determine independently
the relative priorities of any Leasehold, Mortgages, but shall be
entitled to rely absolutely upon a preliminary title report
—
current as of the time of any determination of the priorities of
such Leasehold Mortgage and prepared by a generally -recognized
title insurance company doing business in Miami, Florida.
(c) During the continuance of any Leasehold Mortgage until
such time as the lien of any Leasehold Mortgage has been
extinguished, and if a true and verified copy of such Leasehold
Mortgage shall have been delivered to the City Manager together
with a written notic4 of the name and address of the owner and
`-
holder thereof as provided in Section 7.l(a) above:
(i) The City shall not agree to any mutual termination
nor accept any surrender of this Lease (except upon the
expiration of the full term of this Lease), nor shall the City
consent to any material amendment or modification of this Lease
4
93` 265
l
-ao-
> =
A�;
or waive any rights or consents it may be entitled to pursuant to
the terms hereof, without the prior written consent of Lenderi
(ii) notwithstanding any default by Developer in the
-�
performance or observance of any covenant, condition or agreement
of this Lease on the part of Developer to be performed or
observed the City shall have no right to terminate this Lease
even though an Event of Default under this Lease shall have
occurred and be continuing, unless and until the City Manager
shall have given Lender written notice of such Event of Default
and Lender shall have failed to remedy such default or to acquire
Developer's leasehold estate created hereby or to commence
foreclosure or other appropriate proceedings in the nature
=
thereof, all as set forth in, and within the time specified by,
_
this Article VII.
_
(iii) Subject to the provisions of Subparagraph (iv)
immediately below, the Miami Parking System, a semi -autonomous
agency of the City (the "Miami Parking System") shall have the
right, but not the obligation, at any time prior to. termination
of this Lease and without payment of any penalty, to pay all of
i;
the rents due hereunder, to provide any insurance, to pay any
taxes and make any other payments, to make any- repairs and
1:
improvements, to continue t9 construct and complete the
Improvements, and do any other act or thing required of Developer
hereunder, and to do any act or thing which may be necessary and
}—
proper to be done in the performance and observance of the.-
covenants, conditions and agreements hereof to prevent the
terminating of this Lease. All payments so made and all things.so
-31-
93'- 265
done and performed by Miami parking System shall be as effective
to prevent a termination of this Lease as the same would have
been if made# done and performed by Developer instead of by Miami
Parking System.
(iv) Should any Event of Default under this Lease
occur, Miami Parking System shall have the first right of
—
refusal, prior to any right of Lender pursuant to subparagraphs
(v) and (vi) of this Section, said right to be exercised within
ten (10) days from receipt of notice from the City Manager,
setting forth the nature of such Event of Default by written
notice delivered to the City Manager pursuant to the Notice
provision set forth in Section 12.3 of this Lease, to remedy said
Event of Default, and, if the Event of Default is such that
y
possession of the City Property and Improvements may be
f
reasonably necessary to remedy the Event of Default, Miami
Parking System shall, within such ten (10) day period, commence
and diligently prosecute a foreclosure action or such other
proceeding as may be necessary to enable Miami Parking System to
obtain such possession, and to continue to manage the Project _
with the same rights and obligations as if it were the Developer
provided thats (a) Miami Parking System shall have fully cured
any Event of Default in the palment of any monetary obligations
r
of Developer under this Lease within such ten (10) day orslonger
period and shall continue to pay currently such monetary
'
obligations as and when the same are dues (b) Miami Parking
System shall, within six (6) months of the date that it, takes
possession of the City Property, enter into an agreement'on terms.
.n
k.
_32..
93-
�t
tAW
and conditions reasonably acceptable to the City with an
Acceptable Operator for the continued operation of the City --
Property and Improvements (hereinafter called "Acceptable
Operator's Agreement"); and (c) Miami Parking System shall have
acquired Developer's leasehold estate created hereby or commenced
foreclosure or other appropriate proceedings in the nature
thereof within such sixty (60) day period or prior thereto, and
shall be diligently and continuously prosecuting any such
proceedings to completion. All rights of the City Manager to
terminate this Lease as the result of the occurrence of any such
-
Event of Default shall be subject to and conditioned upon the
City Manager having first given Miami Parking System written
— notice of such Event of Default and Miami Parking System having
— failed to exercise its right of first refusal and to remedy such
= Event of Default or acquire Developer's leasehold estate created
hereby or commence foreclosure or other appropriate proceedings
-
in the nature thereof as not forth in and within the time period
— specified by this Subparagraph (iv). In the event the Miami
Parking System fails to exercise its right to cure the Event of
Default, then City shall notify Lender and Lender may exercise_
its rights under Subparagraphs (v) and (vi) of this.Section.
_ (v) Subject to the #rovisions of Subparagraph (vi)�—
immediately below.. Lender shall have the right, but ~not: the
— obligation, at any time prior to termination of this Lease and
without payment of any penalty, to pay all of, the rents due
— hereunder, to provide any insurance, to pay any taxes and make;—
any other payments, to make any repairs and improvements, to,
A
"33•
93' 265
.4.-
,w
Alt
continue to construct and complete the Improvements, and do any
- other act or thing required of Developer hereunder, and to do any
- act or thing which may be necessary and proper to be done in the
performance and observance of the covenants, conditions and
agreements hereof to prevent the terminating of this Lease. All
payments so made and all things so done and performed by Lender
shall be as effective to prevent a termination of this Lease as
the same would have been if made, done and performed by Developer
-
instead of by Lender.
_
- (vi) Should any Event of Default under this Lease
occur, Lender shall have sixty (60) days after receipt of notice
--
_ from the City Manager, setting forth the nature of such Event of
Default, to remedy same, and, if the Event of Default is such
-
- that possession of the Leased Property and Improvements may be
reasonably necessary to remedy the Event of Default, Lender
shall, within such sixty (60) day period, commence and diligently
— prosecute a foreclosure action or such other proceeding as may be
necessary to enable Lender to obtain such possession, provided
that: (a) Lender shall have fully cured any Event of Default in
z_
the payment of any monetary obligations of Developer under this
_
Lease within such sixty (60) day or longer period and shall
continue to pay currently suchemonetary obligations as and when
— the same are due; (b) Lender shall within six (6) months of the
= date that it takes possession of the Leased Property enter into
=
- an "Acceptable Operator's Agreement" and (c) Lender shall have
acquired Developer's leasehold estate created hereby or commenced
rs
foreclosure or other appropriate proceedings in the nature'
-34-93�- 265,x
'CyXIx
r-
4L
x
rz��
thereof within such sixty (60) day period or prior thereto, and —
shall be diligently and continuously prosecuting any such
proceedings to completion. All rights of the City Manager to
terminate this Lease as the result of the occurrence of any such
Event of Default shall be subject to and conditioned upon the
City Manager having first given Lender written notice of such
Event of Default and Lender having failed to remedy such default
or acquire Developer's leasehold estate created hereby or
commence foreclosure or other appropriate proceedings in the
nature thereof as set forth in and within the time period
specified by this Subparagraph (vi).
(vii) An Event of Default under this Lease which in
the nature thereof cannot be remedied by Lender shall be deemed
to be remedied if (a) within sixty (60) days after receiving
written notice from the City Manager setting forth the nature of =
such Event of Default, Lender shall have acquired Developer's
leasehold estate created hereby or commenced foreclosure or other
appropriate proceedings in the nature thereof; (b) Lender shall
diligently and continuously prosecute any such proceedings to
completion. (c) Lender shall have fully cured any Event of
Default in the payment of any monetary obligations of Developer
under this Lease which do notg require possession of the City
Property and Improvements within such sixty (60) day .period and
shall thereafter continue to faithfully perform all such monetary
obligations which do not require possession of the Project; and
(d) within six (6) months after Lender shall
possession of the City Property and Improvements,
-35-
have gained
r?t—_
.t—
Lender shall
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93, 265 �L
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--
have entered into an Acceptable operator's Agreement. Upon the
taking of possession of the Leased Property and improvements by
sender, Lender shall perform all of the obligations of the
Developer hereunder as and when the same are due. Any assignee or
=
successor in interest to a Lender that has taken possession of
=y
the City Property must, however, assume all of Developer's
obligations hereunder, including, but not limited to, the
construction obligation.
(viii) if the Lender is prohibited by any process or
_
injunction issued by any court or by reason of any action by any
court having jurisdiction of any bankruptcy, debtor
=
rehabilitation or insolvency proceedings involving Developer from
commencing or prosecuting foreclosure or other appropriate
proceedings in the nature thereof, then the times specified in
Subparagraphs (vi) and (vii) above for commencing or prosecuting
such foreclosure or other proceedings shall be extended for the
period of such prohibition; provided that Lender shall have fully
cured any default in the payment of any monetary obligations of
=
Developer under this Lease and shall continue to pay currently
such monetary obligations as and when the same fall due, and
pro` vided that Lender shall diligently attempt to remove any such
prohibition.
(ix) The City Manager shall mail to Lender a duplicate
copy by certified mail of any and all notices which the City may
from time to time give to or serve upon Developer pursuant to the*
provisions of this Lease.
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j
(x) foreclosure of a Leasehold Mortgage or any sale
thereunder, whether by judicial proceedings or by virtue of any
power of sale contained in the Leasehold Mortgage, or any
conveyance of the leasehold estate created hereby from Developer
to Lender by virtue or in lieu of the foreclosure or other =
appropriate proceedings in the nature thereof, shall not require
the consent of the City or constitute a breach of any provision
of or a default under this Lease. Upon such foreclosure, sale or
conveyance, the City shall recognize Lender, or any other
foreclosure sale purchaser, as tenant hereunder, except that all --
obligations on Developer herein contained shall be binding on the
Lender only from and after the date that it shall take title to
the Developers leasehold estate unless otherwise in this Article
VII provided; provided, that Lender or any such foreclosure sale
purchaser must enter into an Acceptable Operator's Agreement, -
within four (4) months of the date of such foreclosure, sale or
conveyance, and further, provided, that in the event there are
two or more Leasehold Mortgages or foreclosure sale purchasers —
(whether the same or different Leasehold Mortgages), the City
shall have no duty or obligation whatsoever to determine the
relative priorities of such Leasehold Mortgages or the rights of
the different holders thereof aqd/or foreclosure sale purchasers.
r
In the event Lende= subsequently assigns or transfers its —
interest under this Lease after acquiring the same by foreclosure =
or by an acceptance of a deed in lieu of foreclosure or
subsequently assigns or transfers its interest under any such new
lease, and in connection with any such assignment or transfer
-37-
Lender takes back a mortgage encumbering such leasehold interest
to secure a portion of the purchase price given Leasehold
Mortgage as Contemplated under this Section 7.1, Lender shall be
entitled to receive the benefit of this Article VII and any other
provisions of this Lease intended for the benefit of the holder
of a Leasehold Mortgage. Any person or entity to whom this Lease
or any such new lease is assigned must either enter into or _
assume Lender's obligations under an Acceptable Operator's
Agreement.
Section 7.2 No Waiver of Developer's Obligations or Citv's
Rights. Nothing contained herein or in any Leasehold Mortgage
shall be deemed or construed to relieve Developer from the full
and faithful observance and performance of its covenants,
conditions and agreements contained herein, or from any liability
for the non -observance or non-performance thereof, or to require
or provide for the subordination to the lien of such Leasehold
Mortgage of any estate, right, title or interest of the City in
or to the Improvements or this Lease.
ARTICLE VIII —
REMEDIES -
Section 8.1 Events of Default - Developer. The following
events are hereby def,ped as "EAnts of Developer's Defaults -
(a) Failure - Payment of Money. Failure of Developer to
pay any Rental, Additional Rental or Public Charges or any other
payments of money as herein provided or required, when due and
the continuance of such failure for a period of ten (10) days
after notice thereof in writing. '-
In the event that any payment or installment of Rental is
not paid to the City on the date the same becomes due and
--
payable, Developer covenants and agrees to pay to the City
= interest on the amount thereof from the date suc-h payment or
installment became due and payable to the date of payment
—
thereof, at the Default Rate. All other payments of money
—
required to be paid to the City by the Developer under this
Lease, including interest, penalties and contributions, shall be
treated as Additional Rental.
(b) Failure - Performance of Other Covenants, Etc. Failure
_
of Developer to perform any of the other covenants, conditions
and agreements in this Lease and the continuance of such failure
or default for a period of sixty (60) days after notice thereof
-
in writing from the City to Developer (which notice shall specify
_ the respects in which the City contends that Developer has failed
to perform any such covenants, conditions and agreements), unless
such default was not caused or created by the Developer and
cannot be cured within thirty (30) days and the Developer within
said thirty (30) day period shall have commenced and thereafter
--
shall have continued diligently to prosecute all actions
necessary to cure such default, said failure shall constitute an
Event of the DevelopwC s Defaulf.
(c) Bankruptcy, etc.
1. if an order of relief shall be entered upon any
petition filed by or against Developer, as debtor, seeking relief
(or instituting a case) under Chapters 7, 91 11 or 13 of the
Bankruptcy Code, 11 U.S.C. ( Sec . 10, et seq .) , or any successor
t'
— thereto; or
39
- 93-- 266
,:.
R
t
2. if Developer admits its inability to pay its debta,
or if a receiver, trustee or other court appointee is appointed
for all or a substantial part of Developer's property; or
—
3. if the leasehold interest of Developer is levied
upon or attached by process of law; or
4. if Developer makes an assignment for the benefit of
creditors or takes the benefit of any insolvency act, or if any
proceedings are filed by or against Developer to declare
Developer insolvent or unable to meet its debts; or
5. if a receiver or similar type of appointment or
_
court appointee or nominee of any name or character is made for
Developer or its property; or
6. if Developer shall abandon.the City Property during
-
the term of this Lease or any renewals or extensions thereof; or
7. if Developer shall assign this Lease or sublet any
portion of the City Property, except as permitted herein.
Section 8.2 Remedies for Developer's Default. If any of
the Events of Developers Default shall occur, the City may, at
its option, institute such proceedings as in its opinion are
necessary to cure such defaults to compensate the City for
damages resulting from such defaults, including but not limited
to the right to give %o the Developer a notice of termination of
this Lease. if such notice is given, the term of this Lease shall
-
terminate, upon the date specified in such notice from the City
to Developer, as fully and completely as if that date were the
;3(
4
date herein originally fixed for the expiration of the term of
L
this Lease, and on the date so specified, Developer shall then
-40- 937
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Y�-�-
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quit and surrender the City Property to the City in accordance
with Section 12.4 of this Lease. Upon the termination of this
Lease, as provided in this Section 8.2, all rights and interest
of the Developer in and to the Leased Property and every part
thereof shall cease and terminate and the City may, in addition
to any other rights and remedies it may have, retain all sums
- paid to it by the Developer under this Lease. 1n addition to the
rights set forth above, the City shall have the right to pursue
any or all of the followings
(a) the right to injunction or other similar relief,
available to it under Florida law against the Developer.
(b) the right to maintain any and all actions at law
or suits in equity or other proper proceedings to obtain damages
resulting from such default.
Section 8.3 Events of Default - City.
(a) Events of Default. The failure of the City to perform
any of the covenants, conditions and agreements of this Lease
which are to be performed by the City and the continuance of such
failure for a period of sixty (60) days after notice thereof in
writing from Developer to the City (which notice shall specify
the respects in which Developer contends that the City has failed
to perfom any of such covenant#, conditions and agreements) and
s
unless such default be one which cannot be cured within sixty
(60) days and the City within such sixty (60) day period shall
have commenced and thereafter shall continue diligently to
prosecute all actions necessary to cure such defaults, such
failure shall constitute an "Event of the City's Default".
-41-
93- 26
(b) Remedies for City's Default. If an 8vent of the City's
Default shall occur, Developer, to the fullest extent permitted
by law, shall have the right to pursue any or all of the
following remedies:
(i) the right and option to terminate this Lease and
all of its obligations hereunder by giving notice of such
election to the City, whereupon this Lease shall terminate as of
the date of such notice;
(ii) the right to a writ of mandamus, injunction or
other similar relief, available to it under Florida law against
the City;
(iii) the right to maintain any and all actions at law
or suits in equity or other proper proceedings to obtain damages
resulting from such default.
Section 8.4 Unavoidable Delay. For the purpose of any of
the provisions of this Lease, neither the City nor Developer, as
the case may be, nor any successor in interest, shall be
considered in breach of or in default in any of its obligations,
including but not limited to the preparation of the City Property
for ID.svelopment, or the beginning and completion of construction
of the Improvements, or progress in respect thereto, in the event
of unavoidable delay in the p*Aormance of such obligations due
to strikes, lockouts, acts of God, inability to obtain labor or
=
materials due to governmental restriction, enemy action, civil
commotion, fire, or other similar causes beyond the reasonable
control of a party (not including such party's insolvency or
f this
financial condition), it being the purpose and intent of,
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paragraph that in the event of the occurrence of any such
unavoidable delays the time or times for the performance of the
covenants, provisions and agreements of this Lease, including but
not limited to the obligations of the Developer with respect to
construction of the Improvements, shall be extenaed :or a 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 notice to the other party thereof in
writing of the cause or causes thereof and the time delayed. 2n
no event shall the period of unavoidable delay exceed a maximum
of sixty (60) days.
Section 8.5 Obligations, Rights and Remedies Cumulative
The rights and remedies of the parties to this Lease,
whether provided by law or by this Lease, shall be cumulative,
and the exercise by either party of any one or more of such
remedies shall not preclude the exercise by it, at the same or
different times, of any other such remedies for the same default
or breach or of any of its remedies for any other default or
breach by the other party. No waiver made by either party with
respect to performance, or manner or time thereof, of any
-
obligation of the other partya or any condition to its own
obligation under this Lease 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 condition to its own
obligation beyond those expressly waived and to the extent
thereof, or a waiver in any respect in regard to any other rights
-43-_
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of the party waking the waiver or in regard to any obligation of
the other party.
ARTICLE IX
PROTECTION AGAINST MECHANICS' -
LIENS AND OTHER CLAIMS; INDEMNIFICATION
Section 9.1 Mechanics, Liens and Payments of Obligations
(a) Developer to Discharge Mechanics' Liens. Developer
shall not be given possession of the City Property or authorized
to begin construction thereon prior to the recording of this
Lease and prior to Possession Date so as not to subject the
City's interest to mechanics' liens. If any such mechanics' liens
shall at any time be filed against the City Property, Developer
shall promptly take and diligently prosecute appropriate 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. Upon Developer's failure so to do,
the City, in addition to any other right or remedy that it may
have, may take such action as may be reasonably necessary to
protect its interest, and Developer shall pay any amount paid by
the City in connection with such action, and all reasonable legal
and other costs and expenses incurred by the City in connection
therewith (including reasonable, counsel fees, court costs and
other necessary disburtements). Any such amounts paid by the City
and the amount of any such expenses or costs incurred by the
City, if not paid by the Developer to the City within thirty (30) _-
days after the date Developer receives written notice from the
City of the amount thereof and demand for payment of the same,
shall, together with interest thereon at the Default Rate from 41-
��
-44- 93 265
xri
the date of the receipt by Developer of the aforesaid written
notice and demand to the date of payment thereof by Developer., be
treated as Additional Mental, and shall be payable by Developer
to the City not later than the next monthly installment of the
Rental becoming due.
(b) Payment of Materialmen and Suppliers. Developer shall
make, or cause to be made, prompt payment of all money due and
legally owing to all persons doing any work or to subcontractors
in connection with the development, construction, equipment,
repair or reconstruction of any of the improvements required by
this Lease. Nothing in this Subparagraph (b) shall limit the
right of Developer to contest, in good faith, by legal
proceedings or otherwise, whether any amount claimed or alleged
to be due and owing to any such person is legally due and owing
and to withhold payment of such amounts pending resolution of
such dispute.
Section 9.2 Indemnity. Notwithstanding any. policy or
policies of insurance required of Developer, Developer shall
-
indemnify, save harmless and defend the City and any and all of
its Agents and employees, from or in connection with, claims and
demands of whatever nature, including allegations of negligence,
gross negligence, willful or iffitentional misconduct, violations
of civil rights, etc., arising out of the use or occupancy of the
City Property by Developer, its agents, servants, employees 'or
contractors. Developer shall defend any and all such actions',
claims, demands or suits on behalf of the City at Developer"s,
sole cost and expense.
s
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ARTICLE X
INSURANCE
—
Section 10.1 Insurance Coverage. Beginning on the
Possession Date and during the term of this Lease, Developer at
its sole cost and expense shall maintain or cause to be
=—
maintained:
(a) Property Insurance. Insurance on the Improvements
against All Risks of physical loss or damage; including the
expense of the removal of debris of such property as a result of
damage by an insured peril. Coverage shall be written on a
replacement cost basis. if the policy or policies of insurance
`=
contain a co-insurance requirement, the policy or policies shall
contain an agreed amount endorsement. During the construction
period, property insurance may be provided on a Completed Value
Builder's Risk form. The City and Developer shall be designated
as named insureds on such Builder's Risk Policy. The term
„improvements", as used in this paragraph, shall be deemed to
include all personal property, machinery, fixtures and equipment
furnished or installed on the premises and owned by the
Developer, and the insurance herein provided shall cover the
same.
_
The adequacy of all insurance coverage may be reviewed
periodically by the City Manager at his discretion. Any review by
the City Manager shall not constitute an approval or acceptance
of the amount of insurance coverage. In the event that insurance
proceeds are inadequate to rebuild and restore the da"getd
Improvements to substantially their previous condition before an
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insurable loss occurred, and the cause of the deficiency in
insurance proceeds is the failure of the Developer to adequately
insure the Improvements as required by this Lease, Developer gust
nevertheless rebuild and restore such Improvements pursuant to
the terms hereof and must pay the entire cost of same,
notwithstanding the fact that such insurance proceeds are
inadequate.
(b) Business interruption Insurance. Business interruption
insurance, so that Developer will be insured against loss of
business income from the Improvements occasioned by any of the
insured against perils included in the Property Insurance policy
during the period required to rebuild, repair or replace the
property damaged, which policy or policies of insurance shall
expressly provide by endorsement thereon that the interest of the
City as lessor under this Lease shall be covered to the extent
earned, in an amount equal to the total of the Rental payable
during said period of business interruption; provided, however,
that Developer shall not be required to carry such rental value
insurance as aforesaid until such time as the Improvements shall
be opened for business with the general public. The adequacy of the business interruption insurance may be reviewed by the City
manager
g every five yeprs. Any review by the City Manager shall
not constitute an approval or acceptance of the amount of
insurance coverage.
(c) Automobile Liability Insurance. Automobile liability
insurance and equivalent policy forms covering all owned, non -
owned, and hired vehicles used in connection with any work
3
_
9
arising out of this Lease. Such insurance shall afford protection _
to at least a combined single limit for bodily injury and
--=
property damage liability of $1,000,000 per occurrence. The _
adequacy of the automobile liability insurance coverage may be -
reviewed every five years by the City Manager. Any review by the
—'
City Manager shall not constitute an approval or acceptance of
the amount of insurance coverage. -
-
(d) Liability insurance. Comprehensive general liability,
including contractual liability, or an equivalent policy form
providing liability insurance against claims for personal injury
or death or property damage, including broad form property
damage, occurring on or about the Leased Property, the _
Improvements, or any elevator, escalator or hoist thereon. Such -
insurance shall afford protection to at least a combined single -
limit for bodily injury and property damage liability of
$5,000,000 per occurrence/$ 5, 0 00, 000 aggregate. The adequacy of
the liability insurance coverage shall be reviewed every five
years by the City Manager. Any review by the City Manager shall
not consitute an approval or acceptance of the amount of
insurance coverage. Such liability and property damage insurance
shall also be placed in effect during the period of permitted
access provided in Segion 3.3 htrein.
(e) Theft Coverage covering employee fidelity, inside or
outside loss and burglary with a limit of not less than $100,000
per occurrence. -
(f) Flood Insurance in an amount satisfactory to the`City
and Developer.
-A
(g) Worker.'s.. Co pensation« Worker's Compensation and
Employer's Liability Insurance in compliance with Florida Statute
440. For work that is subcontracted, the Developer shall require
the subcontractor to provide Worker's Compensation insurance for
all of the subcontractor's employees.
(h) Copies. Developer shall furnish Certificates of
Insurance with the City named as additional insured for the
coverages specified hereunder, which shall clearly indicate that
Developer has obtained insurance in the type, amount and
classification as herein required. Copies of all policies of
insurance and renewals thereof shall be furnished upon request of
the City Manager by the Developer prior to the effective date
thereof. Copies of new or renewal policies replacing any policies
expiring during the term of this Lease shall be delivered to City
Manager at least thirty (30) days prior to the date of expiration
of any policy, together with proof satisfactory to the City that
all premiums have been paid.
Section 10.2 Responsible Companies - Blanket insurance
Permitted. All insurance provided for in this Article X shall be
effected under valid and enforceable policies issued by insurers
of recognised responsibility, which are licensed to do business
in the State of Florida. All ouch companies must be rated at
s
least *A" as to management, and at least "Class X" as, to
financial strength in the latest edition of Best's Insurance
Guide, published by Alfred M. Best Co., Inc., 75 Fulton Street,
New York, NY. The insurance required by this Article may be part
of another policy or policies of the Developer in which other -
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93-- 26 f
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properties and locations are also covered, so long as the amount
of insurance available to pay losses at this location is at least
the minimum required by this Section, and it cannot be reduced in
any manner by losses occurring at other properties or locations. -=
Section 10.3 Named Insureds - Notice to City_ of
Cancellation. All policies of insurance described herein shall
name Developer and the City as insureds as their respective
interests may appear. The policies shall also name as insured, if
required by either party or required pursuant to the terms of any
Leasehold Mortgage, any Leasehold Mortgagee as the interest of
such Leasehold Mortgagee may appear. Notwithstanding any such
inclusion, the parties hereto agree that any losses under such
policy shall be payable, and all insurance proceeds recovered —
thereunder shall be applied and disbursed in accordance with the
provisions of this Lease. All insurance policies shall provide
that no material change, cancellation or termination shall be
effective until at least thirty (30) days after receipt of
written notice thereof has been received by the City. Each policy
shall contain an endorsement to the effect that no act or
omission of the Developer shall affect the obligation of the
insurer to pay the full amount of any loss sustained. -
Section 10.4 City May Prdture Insurance if Developer Fails
to Do So. In the event Developer at any time refuses, neglects
or fails to secure and maintain in full force and effect any or
all of the insurance required pursuant to this Lease, the City,
at its option, may procure or renew such insurance, and all _
amounts of money paid therefor by the City shall be treated as -
-50-
Additional Rental payble by Developer to the City, together with
interest thereon at the Default Rate from the date the same were
_
paid by the City to the date of payment thereof by Developer. 'the
City shall notify Developer in writing of the date, purposes and
amounts of any such payments made by it, which shall be payable
by Developer to the City within ten (10) days of such
notification.
Section 10.5. Insurance Does_ Not Waive Developer',6
Obligations. No acceptance or approval of any insurance
agreement or agreements by the City or the City Manager shall,
—
relieve or release or be construed to relieve or release
Developer from any liability, duty or obligation assumed by, or
-
imposed upon it by the provisions of this Lease.
—
Section 10.6 Loss or Damage Not 'to Terminate Rental or
This Lease. Any loss or damage by fire or other casualty, of or
to any of the Improvements on the City Property at any time,
shall not operate to terminate this Lease or to relieve or
_
discharge Developer from the payment of Rental, or from the
payment of any money to be treated as .Additional Rental in
respect thereto, pursuant to this Lease, as the same may become
-
due and payable, as provided in this Lease, or from the
-
performance and fulfillment of a any of Developer's obligations
pursuant to this Lease.
-
Section 10.7 Proof of Loss. Whenever any Improvements, or
any part thereof constructed on the City Property (including any
personal property furnished or installed in the promises) shall
have been damaged, or destroyed, Developer shall promptly, make,
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proof of loss in accordance with the terms of the insurance
policies and shall proceed promptly to collect or cause to be
collected, all valid claims which may have arisen against
y insurers or others based upon any such daiaage or destruction.
_ developer shall promptly give City written notice of such damage
or destruction.
Section 10.8 Property Insurance Proceeds.
(a) Authorized Payment. Except as otherwise provided in
Subsection (c) of this Section 10.8, all sums payable for loss
and damage arising out of the casualties covered by the property
insurance policies shall be payable:
(i) Directly to Developer for purposes of rebuilding,
replacing and repair if the total recovery is $500,000 or less,
which amount shall be adjusted periodically every five (5) years
commencing with the Possession Date by the percentage change in —
the Consumer Price Index (all urban consumers) as published by
the Bureau of Labor Statistics of the Department of Labor (the
"CPI") for such' 5-year period , or, in the event the CPI. has
changed or is no longer published, such other appropriate measure
of changes in the relative purchasing power of the dollar agreed
upon by the parties, except that if Developer is then in default -
under this Lease, such proceedeP shall be paid over to City, who
shall apply the proceeds first to the rebuilding, replacing and =
repairing of the City Property, and then to the curing of such
default. Any remaining proceeds shall be paid over to Developer.
(ii) To the Insurance Trustee as defined hereinbelow, if the
total recovery is in excess of $500,000, which amount shall be
adjusted periodically every five (5) years commencing with the
Possession Date by the percentage change in the CPI for such 5-
year period as above set forth, to be held by such Insurance
Trustee pending establishment of reconstruction, repair or
replacement costs and shall be disbursed to Developer pursuant to
the provisions of Subparagraph (b) of this Section 10.8. The
Insurance Trustee (the "Insurance Trustee" or the "Trustee")
shall be a commercial bank or trust company designated by
Developer and approved by the City Manager, which approval shall
not be unreasonably withheld or delayed. _
(b) Disposition of insurance Proceeds for Reconstruction.
All amounts received upon such policies shall be used, to the -
extent required, for the reconstruction, repair or replacement of
the Improvements and the personal property of Developer contained
therein, so that the Improvements or such personal property shall
be restored to a condition comparable to the condition prior to
the loss or damage (hereinafter referred to as "Reconstruction
Work"). From the Insurance Proceeds received by the Insurance
Trustee, there shall be disbursed to Developer such amounts as
are required for the Reconstruction Work. Developer shall submit -
invoices or proof of payment to the Trustee for payment or
reimburseaent in accordance with an agreed schedule of values
approved in advance by the City Manager.
Any amount remaining in the hands of the insurance Trustee =
after the completion of the Reconstruction Work shall be paid to
Developer.
-53-
(c) Lenders MAY. Have Benefit of insurance Fund_. for
Reconstruction. In the event Developer, shall at any time
authorize a Lender on his behalf or in his stead to enter upon
the City Property and undertake or prosecute the reconstruction
or repair of any building on the City Property damaged or
destroyed by fire, or other insured -against hazard or peril and
to have and receive for Developer or Leasehold Mortgagee's use
for such purpose such insurance proceeds, then in that case said
insurance proceeds shall be equally available to Leasehold
Mortgagee as to Developer as provided in Subsection (b) of this
Section 10.81 and it shall in like manner and to like extent at
the request of any such Leasehold Morgagee, be applied to the
reconstruction or repair of any such building so damaged or
destroyed.
Section 10.9 Covenant for Commencement and Completion of
Reconstruction. Subject to the provisions of Section 10.1(b),
Developer covenants and agrees to commence the Reconstruction -
Work (the "Reconstruction Work") as soon as practicable, but in
any event within six (6) months after the insurance proceeds in
respect of the destroyed or damaged Improvements or personalty
have been received, and to fully complete such Reconstruction =
work as expeditiously an possiile consistent with the nature of _
the damage, but in any event within eighteen (18) months from the
start thereof; provided, that if it is not practicable to -
commence such Reconstruction work within such six (6) month
period or to complete such Reconstruction Work within such
eighteen (18) month period, then such Reconstruction Mork may be -
-54-
A
commenced and completed within a longer period, provided that
such period shall be approved in writing by the City Manager
after Oritten request from developer. As used in the preceding
sentence, the term "available net insurance proceeds" means the
sum actually paid by the insurer or insurers in respect of the
claim in question, less all costs and expenses incurred by
Developer or the insurance Trustee in the collection, holding and
disbursement of same, including (without limitation) reasonable
;—
attorneys' fees.
ARTICLE XI
=
CONDEMNATION
Section 11.1 Entire City Property Taken Condemnation.
In the event that the whole of the City Property and Improvements
(or such portion thereof as shall, render it economically
unfeasible to effect the Project) shall be taken for any public
use or purpose by the exercise of the power of eminent domain, or
shall be conveyed by the City and Developer acting.. jointly to
-
avoid proceedings of such taking, the Rental and money to be
treated as Additional Rental pursuant to this Lease and the
=
Public Charges shall be prorated and paid by the Developer to the
date of such taking or conveyance, and this Lease shall terminate
and becom null and void as if the date of such taking or
conveyance. The award or awards of damages allowed to the City or
Developer shall be paid as follows:
First: There shall be aid all ex p penses, if any,
_
including reasonable attorneys, fesa, incurred by the Cit-Y
'r a
and Developer in such condemnation suit or conveyance.,r
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9_3-
x
Seconds City and Developer shall be paid portions of
the balance of said award or awards which are allocable to
and represented by the value of their respective interest in
r-
the City Property as found by the court or jury in its
condemnation award, or if no such separate awards are
{
obtained, such balance shall be paid to Developer and the
City in the same proportion as the then fair market value of
each party,s respective interest or estate in the City
Property and the Improvements within thirty (30) days of the _
time of the taking.
ARTICLE XII
RIGHTS OF OCCUPANCY AND ACCESS;
MAINTENANCE; OWNERSHIP of IMPROVEMENTS
Section 12.1 Waste. Developer shall not permit, commit or =
suffer waste or impairment of the City Property, or the
Improvements thereon, or any part thereof.
Section 12.2 Maintenance and Operation of Improvements.
Developer shall at all times keep the improvements and all
furnishings located therein in good and safe condition and repair
as other first class projects in similar usage are kept and in
the occupancy, maintenance and operation of such Improvements,
and of the City Property, shall iomply with all laws, ordinances,
codes and regulations applicable thereto including, without
limitation, laws or regulations which are applicable to historic -
structures.
Section 12.3 Ownership of Improvements During Lease.
During the term of the Lease, title to the leasehold interest in
Ll
the improvements shall remain in the Developer. During the term
of the Lease, Developer shall be entitled to claim depreciation
_
on the Improvements and all equipment, fixtures and machinery
-
therein contained, for all taxation purposes.
-
Section 12.4 Surrender of City Property. Upon the
'-
expiration or termination of this Lease, title to the
Improvements shall vest in the City and it shall be lawful for
the City to re-enter and repossess the City Property and the
Improvements thereon, without process of law, and Developer, in
such event, does hereby waive any demand for possession thereof,
agrees to surrender and deliver the City Property and the
Improvements thereon, without process of law, peaceably to the
City immediately upon such expiration or termination.
Section 12.5 City and Developer to join in Certain
Actions. Within ten (10) days after receipt of written request
from Developer, the City shall%
_
(a) Join Developer when required by law in any and all
applications for permits, licenses or other authorizations
required by any governmental or public authority which has
jurisdiction in connection with any work as may be reasonably
necessary or appropriate for the construction of the improvements
_
to be constructed by Developer of the City Property; and
=
(b) Join Developer in any grants of, or grant such.. access
-
easements or easements or rights with respect to electric,
telephone, gas, water, sewer, and such other public utilities and
facilities as may be reasonably necessary or appropriate for the
construction, operation or use of the City Property or, any..,
—57—
F._
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Improvements to be erected by Developer thereon. Developer shall
pay all fees and charges for all such applications and grants,
ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.1 No Partnership or Joint Venture. It is
mutually understood and agreed that nothing contained in this
Lease is intended or shall be construed in any manner or under
any circumstances whatsoever as creating or establishing the
relationship of co-partners, or creating or establishing the
— relationship of a joint venture between the City and Developer,
or as constituting Developer as the agent or representative of
the City for any purpose or in any manner whatsoever.
— Section 13.2 Florida and Local Laws Prevail. This Lease
shall be governed by the laws of the State of Florida. If any
term, covenant, or condition of this Lease or the application
thereof to any person or circumstances shall, to any extent, be
illegal, invalid, or unenforceable because of present or future
laws or any rule or regulation of any governmental body or entity =
or becomes unenforceable because of jii.dicial construction, the
remaining terms, covenants and conditions of this Lease, or the
application of such term, covenant or condition to persons or
circumstances other then those A to which it is held invalid or
unenforceable, shall not be affected thereby and each term,
covenant, or condition of this Lease shall be valid and be
enforced to the fullest extent permitted by law.
Section 13.3 Award of Lease: Developer warrants that it
r
has not employed or retained any person employed by the City to
-56-
93— 26
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+.
solicit or secure this Lease and that it has not offered to pay,
paid, or agreed to pay any person employed by the City any fee,
commission percentage, brokerage fee, or gift of any kind
contingent upon or resulting from the award of this Lease.
Section 13.4 Notices A notice of communication under this
Lease by either the City or the City Manager, to Developer, or,
by Developer to the City or the City Manager, shall be
sufficiently given or delivered if dispatched by registered or
certified mail, postage prepaid, return receipt requested,
addressed as followss
(a) Developer. In the case of a notice or communication
to Developer, if addressed as followss
Gunman Center Partners, Ltd.
c/o Daniel Mones, Ltd. Partner
141 N.E. 3rd Ave., loth Floor
Miami, FL 33132
(b) City Manager. In the case of a notice or communication
to the City or the City Manager, if addressed as follows:
City Manager
3500 Pan American Drive
Miami, FL 33133
and ton
Executive Director
Miami Parking System
190 H.E. 3rd Street
Miami, FL 33432
or if such notice is addressed in such other way in respect to
any of the foregoing parties an that party may, from time to
time, designate in writing, dispatched as provided in this
Section 13.4.
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NO
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Section 13.5. Conflict of interest. Developer
covenants that no person under its employ who presently exercise
any functions or responsibilities in connection with this rase
has any personal financial interest, direct or indirect, with
the City or with the Miami Parking System. Developer further
covenants that, in the performance of this Lease, no person
having such conflicting interest shall be employed. Any such
interests on the part of Developer or its employees, must be
disclosed in writing to the City.
Developer is aware of the conflict of interest laws of
the City of Miami (City of Miami Code Chapter 2, Article v), Dade
County Florida (Dade County Code Section 2-11.1) and the State of
Florida, and agrees that it shall fully; comply in all respects
with the terms of said laws.
Section 13.6 Titles of Articles and Sections. .Any titles
for the several parts, Articles and Sections of this Lease are
inserted for convenience of reference only and` shallbe
disregarded in construing or interpreting any of its provisions.
—
Section 13.7 Counterparts. This Lease is executed in six
-
(6) counterparts, each of which shall be deemed an original, and
such counterparts shall constitute one and the same instrument.
Section 13.8 Suscessors and Assigns. Except to the extent
-
limited elsewhere in this Lease, all of the covenants, conditions
=
and obligations contained in this Lease shall be binding upon:*
inure to tho'benefit of the respective successors and assigns of
the City and the Developer.
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Section 13.9 Entire Agreement. This instrument and its
attachments constitute the sole and only agreement of the parties
hereto relating to said Lease and correctly sets forth the
rights, duties and obligations of each to the other as of its
date. Any prior agreements, promises, negotiations, or
representations not expressly set forth in this Lease are of no
force or effect. In the event of conflict between terms of this
Lease and any terms or conditions contained in any attached
documents, the terms of this Lease shall rule.
IN WITNESS WHEREOF, Frank M. Marks, the sole General Partner
of GUSMAN CENTER PARTNERS, LTD., has signed this Lease in his
name, and the CITY COMMISSION OF THE CITY OF MIAMI has caused
this Lease to be signed in its name by Cesar H. Odio, the City
Manager, and to be duly attested to by Matty Hirai, the City
Clerk, on the day and year first hereinabove written.
WITNESSESs
GUSMAN CENTER PARTNERS, LTD.,
a Flori a Limit Part ership
Fran M. Mar e -
General Partner
STATE OF FLORIDA)
)SHs
COUNTY of DADS ,
The foregoing instrument was acknowledged before me this lot —
day of May, 1993 by FRANK M. MARKS, General Partner of GUSMAN
CENTER PARTNERS, LTD., a Florida Limited Partnership, on behalf
of GUSMAN CENTER, PARTNERS, LTD.
He is personally known to me lucod
and d take
an oat .
93-
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MAA C. HAU MOM
91W Of Florida
�ij►Comm. E*. Mara II, I*
Cnn, / AA ?4-, Ou
Matty Hirai
City Clerk
STATE OF FLORIDA)
)SS:
COUNTY OF DADE )
NOTARY PUBLIC
Sign
Prin ,
State OV Florida at Lard (Seal)
My Commission Expires,."/
THE CITY OF MIAMY, a
Municipal Corporation of the
State of Florida
By=
Cesar H. Odio
City Manager
The foregoing instrument was acknowledged before me this let
day of May, 1993 by CESAR H. ODIO, City Manager of the City of
Miami, a municipal corporation of the State of Florida, on behalf
of the City of Miami.
He is personally known to me or has produced
as identification and did" not take
an oath.
NOTARY PUBLIC
sign
Print
State of F on -i at Large (Seal)
My Commission Expires
APPROVED AS TO FORM AND
CORRECTNESS:
A. Quinn Jones, III
City Attorney
M407 /GMK/ IXh/ROD