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R-92-0490
DiALS, J-92-510 6/30/92 RESOLUTION NO. 490 A RESOLUTION, WITH ATTACHMENT, AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT, IN SUBSTANTIALLY THE ATTACHED FORM, WITH LEISURE MANAGEMENT MIAMI, INC. ("LMM"), TO OPERATE AND MANAGE THE CITY OF MIAMI JAMES L. KNIGHT CONVENTION CENTER ("CENTER"), COMMENCING OCTOBER 1, 1992 AND TERMINATING ON SEPTEMBER 30, 1997, WITH AN OPTIONAL FIVE (S) YEAR RENEWAL TERM, AT AN INITIAL ANNUAL COST OF $120,000.00; ALLOCATING FUNDS THEREFOR FROM THE DEPARTMENT OF CONFERENCES, CONVENTIONS AND PUBLIC FACILITIES OPERATING BUDGET. WHEREAS, the City Commission pursuant to Resolution No. 92-397, adopted June 11, 1992, authorized the City Manager to negotiate a professional services agreement with LMM; and WHEREAS, the City Manager and LMM negotiated an agreement subject to the ratification and approval by the City Commission; NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The recitals and findings contained in the Preamble to this Resolution are hereby adopted by reference thereto and incorporated herein as if fully set forth in this Section. ATTACHMENT(SCONITAIKED CITY COMMISSION MEETING OF JUL 1611932 Resolution No. 92- 490 Section 2. The City Manager is authorized`/ to enter into an agreement, in substantially the attached form, with LMM to operate and manage the Center for a five (5) year period commencing on October 1, 1992 and terminating on September 30, 1997, with an optional five (5) year renewal term at an initial annual cost of $120,000.00, subject to adjustment as provided under the terms of the agreement with funds therefor being allocated from the Department of Conferences, Conventions and Public Facilities Operating Budget. Section 3. This Resolution shall become effective immediately upon its adoption. PASSED AND ADOPTED this 16th day of ATTEST MATTY'HIRAI, CITY CLERK PREPARED AND APPROVED BY: CARMEN L. LEON ASSISTANT CITY ATTORNEY CLL:ra:bss:M30l9 , 1992. . SUAREZ, MAYOR APPROVED AS TO FORM AND CORRECTNESS: ri r INN B III CITY AT EY The herein authorization is further subject to compliance with all requirements, that may be imposed by the City Attorney, including but not limited to those prescribed by applicable City Charter and Code provisions. _2_ 92- 490 I OIL. rum MANAGEMENT AND OPERATIONS AGREEMENT This Agreement entered into this day of 1992 by and between the City of Miami, a municipal corporation of Dade County, Florida, (hereinafter the "CITY") and Leisure Management Miami, Inc., a professional management firm organized and existing under the laws of the State of Delaware (hereinaite-: the "FIRM"). W I T N E S S E T H WHEREAS, the CITY owns the City of Miami Convention Center ("CENTER"), which for the purposes of this Agreement, is defined as all of the City of Miami/University of Miami James L. Knig1,t International Center, excepting only those areas leased to the University of Miami and to Miami Center Associates, Ltd., ("HOTEL DEVELOPER"), and as shown on Attachment "A" hereto; and WHEREAS, the CITY and University of Miami ("UNIVERSITi"; entered into an agreement dated July 1, 1983, as amended, for use of designated spaces within the Center and is incorporated in and made part -of this contract and shown as Attachment "1B"; and WHEREAS, the CITY and HOTEL DEVELOPER entered into an agreement dated September 13, 1979, as amended, (Attachment "C")- for use of designated areas within the CENTER; and 92- 490 i WHEREAS, the CITY, UNIVERSITY, and HOTEL DEVELOPER have mutually acknowledged each other as having certain rights as delineated in Attachments "A, "B" and C", for use and occupancy of each others areas for program events in the CENTER; and WHEREAS, the Lease and Agreement in existence between the CITY and HOTEL DEVELOPER requires that ... "the Excepted Premises, (excluding the [University of Miami] Conference Center) shall during the term (of the Lease and Agreement] be placed under a management agreement with a professional management firm, having experience in management of convention centers or civic facilities comparable to the Convention Center ..."; and WHEREAS, the original ten (10) year term of the management and operation agreement between the City and Spectacor Management Group ("SMG"), f/k/a Facility Management Group, Inc. (FMG) expires on or about September 30, 1992; and WHEREAS, the CITY requires the service of a private management company to manage the Center in all of its activities and operations, including rental of space, advertising, promotion, marketing/sales, events management, box office, public relations, procurement, maintenance, security, custodial and support services for conferences, conventions, exhibitions, performances, special events, and any and all convention events and support services taking place in the facility as deemed necessary by the management company; and - 2 - 92- 4910 WHEREAS, the CITY issued a request for proposals for the = management, operation and maintenance of the Center on February = 28, 1992; and WHEREAS, the Selection Committee evaluated the proposals received March 30, 1992, in response to the CITY's request for proposals, and selected in rank order three companies as most qualified to provide the required professional services for said City's facility; and WHEREAS, the City Commission by Resolution No. 92-397, adopted on June 11, 1992, approved the findings of the Selection - Committee that Leisure Management International acting through its affiliate, the FIRM, was the most qualified company to provide professional services in the management, operation and - maintenance of the Center. WHEREAS, the City Manager or his designee was authorized to negotiate a professional services agreement with the management company ranked #1 as set forth above; and WHEREAS, the FIRM has expressed a desire to perform the i required services for the CITY; and WHEREAS, the FIRM, by reason of its expertise in facility management, is eminently qualified to manage and operate the CENTER on behalf of the CITY and the CITY contracts for the FIRM's services as provided herein; and WHEREAS, the title Executive Director as used herein is specifically defined to mean the City Manager's designee who shall be an individual and CITY agrees it shall give FIRM not 4, less than fourteen (14) days prior written notice of any change S in the individual so designated; 3 - 92- 490 a NOW, THEREFORE, in consideration of the mutual covenants contained herein, the CITY and FIRM agree as follows: 1. TERM: a. The term of this Agreement shall be for a period of five (5) years commencing on October 1, 1992 and terminating on September 30, 1997. b. This term may be renewed for an additional five (5) year term, at the option of the CITY, subject to negotiations and to the existing requirements of law at the time of expiration of the initial term, and the parties agreeing in writing to extend the Agreement sixty (60) days before its expiration date. C. Except for the renewal provisions contained in this Section, this Agreement is nonrenewable. 2. SCOPE OF SERVICES: The FIRM shall have full responsibility for management, operation and maintenance of the CENTER, which shall include the performance of the following, subject to controls including budgetary constraints, and restrictions as stated elsewhere in this Agreement and in an operational manual to be developed and i - agreed to by the parties to this Agreement: a. Temporary rental on behalf of the CITY of assembly spaces within the facility; b. Advertising and marketing; C. Supervision of relations with news and entertainment media of all types, including all negotiations and agreements pertaining thereto; - 4 - 92-- 490 d I H. d. Building and grounds operations and maintenance, including, but not limited to, purchasing, payroll, fire prevention program, security program (such programs to be approved by the Executive Director in accordance with Section 8.a. hereof), routine repairs, janitorial services and energy conservation; e. Event management, including, but not limited to, crowd control, security, admission, procedures, supervision of box office, and servicing of users such as conventions and entertainment; f. Any and all matters that may be required to properly merchandise, utilize and promote the use of the CENTER; g. Authority to purchase and contract for use pertaining to the CENTER, all of the following in accordance with the approved budget: 1. Conventions, trade shows, meetings and banquets; 2. Entertainment; 3. Sports; 4. Consumer shows; 5. All other forms of activity that can properly be housed or exhibited at the CENTER; 6. Service contractors, including without limitation, security, janitorial, electrical; 7. Office equipment. h. Maintenance of the CENTER and the equipment contained therein in the condition received, wear and tear excepted, and where possible and with budget permitting, through improved maintenance, upgrading the condition of facilities. - 5 - 92- 490 i. Prior to accepting occupancy and each year thereafter, at the time of submission_ of the annual budget to the CITY, the FIRM and Executive Director jointly shall prepare and submit to the CITY an inventory of all CITY -owned equipment, stating quantities, capacities, operational status, appearance and recommendations for major maintenance or replacement. Attached hereto as Attachment "D" is the most current inventory of all City -owned equipment. All losses in inventory shall be documented by FIRM as soon as such losses occur and the proper CITY authorities promptly notified. FIRM shall prepare and submit to the Executive Director a quarterly report on maintenance and breakdowns of all major pieces of installed and portable equipment. J. Be responsible for the administration of all agreements for use of the facilities, including but not limited to the collection of all sums due from users and the general public for the rental and use of the facilities. Subject to the prior approval on a case -by -case basis by the Executive Director, the FIRM is authorized and empowered and is granted the responsibility to pursue all appropriate legal action as is necessary to collect unpaid obligations and enforce all rights of the CITY, including the pursuit of all legal remedies available for such purposes, subject to the provisions of the City Charter. The CITY agrees that any such action shall be pursued in the name and on behalf of the CITY. In the event that the City Attorney's Office does not represent the CITY's interest in these matters, selection of and expense for legal counsel shall be approved in - 6 - 92- 490 advance by the CITY, which approval shall not be unreasonably withheld or delayed. k. In performing its obligations and meeting its responsibilities under this Agreement, the FIRM agrees to recognize and comply with all obligations of the CITY to the UNIVERSITY, and the UNIVERSITY to the CITY as delineated in Attachment "B". 1. The FIRM shall monitor all concessions operated in the CENTER by HOTEL DEVELOPER and report to the Executive Director periodically in respect to the quality of the products, and adequacy of the services provided to the extent of the CITY's right to do so. The FIRM shall investigate and report to the Executive Director on complaints involving the concessions. M. This Agreement establishes the duty and responsibility of the FIRM as to the management, operations, and maintenance of the CENTER, and any person dealing with the FIRM has the right to rely on the FIRM's power and authority with regard to the use and occupancy of the CENTER to the extent prescribed in this Agreement. The FIRM shall not have the authority to encumber any real or personal property of the CITY. 3. COIPENSATION: The CITY agrees to pay the following management fees to the FIRM for its services in operating the CENTER. a. The CITY agrees to pay the below -described annual base management fee payable in equal monthly installments, commencing on the last day of each month during the initial term of this Agreement: 9?- 490 - 7 - Annual Base Fee $120,000.00 130,000.00 140,000.00 140,000.00 140,000.00 F�1 Fiscal Year 1992-1993 1993-1994 1994-1995 1995-1996 1996-1997 b. This annual management fee is hereby allocated from the funds of the Department of Conferences and Conventions, and the lack of such allocation or availability of funds shall be cause of termination of the Agreement without any penalty to the CITY. c. As Incentive Compensation, the CITY agrees to pay, at the end of each fiscal year, during the term of this Agreement, 15% of the first $100,000 profit, 20% on any amount of profit that exceeds $ 100,000 but is less than $200, 000 and 25% on an amount of profit that exceeds $200,000. The Incentive Compensation will be based on Operating Profits. The Operating Profits are defined as the positive difference between gross revenues and operating expenses (the specific line -items of which are included in the CITY annual budget for the operation of the CENTER). The percentage of Incentive Compensation will be applied to that difference which is defined as "profit". Excluded in any revenues are any "asset sales" authorized by the CITY, promotional funds paid by the HOTEL DEVELOPER and matched with CITY funds and additional rents paid to the CITY by the HOTEL DEVELOPER pursuant to the rental agreement presently existing between the CITY and the HOTEL DEVELOPER attached hereto as Attachment "A". - 8 - 92- 490 d. Compensation for all the FIRM's personnel assigned to work at and for the CENTER and all operating costs will be Included in the annual operating budget as reimbursable costs for the CITY to the FIRM. 4. FISCAL RESPONSIBILITY: a. The FIRM agrees to render monthly, thirty (30) days after the completion of the previous month, a financial report to the Executive Director in a form developed and from time to time revised by the FIRM and CITY. b. The FIRM agrees, at the request of the CITY, to meet with the Executive Director to answer questions relating to the operation of the CENTER and/or the financial report. In addition, FIRM agrees (on a date to be agreed upon) following each fiscal year (which shall correspond to the CITY's fiscal year), to provide to the CITY a complete financial report of the CENTER's annual operation for that fiscal year. Said yearly report will be audited (as an expense included in the operating budget) by a nationally recognized accounting firm acceptable to the CITY and the FIRM; the accounting firm's audit report shall be accompanied by a letter from said accounting firm expressing its opinion as to the effectiveness of internal controls and other related matters. At the option of the CITY and at its expense, a six-month audit may be performed. C. The FIRM agrees to use forms, accounting methods, internal controls and procedures for its reports in a form developed and from time to time revised by the CITY. 92- 490 d. The CITY agrees to provide the FIRM with those forms, summaries, schedules, and report forms that the FIRM must use as part of its reporting and procedures. e. The FIRM agrees to keep and maintain, at its office in Miami, separate and independent records in a separate set of books devoted exclusively to its CENTER management operations in Miami. Said books, ledgers, journals, accounts, and records shall contain all entries reflecting the business operations of the CENTER under this Agreement. All of the foregoing records shall be open for examination and audit by CITY -authorized personnel during FIRM's ordinary business hours upon reasonable advance notice. FIRM agrees that all documents, records and reports maintained and generated pursuant to this contractual relationship, shall be subject to the provisions of the Public Records Law, Chapter 119, Florida Statutes. f. Within thirty (30) days after the end of each six (6) month period during the term of this Agreement, an operating statement reflecting all of the business operations, including a statement on cash controls, of the FIRM in the management of the CENTER under this Agreement is to be submitted to the CITY. g. The CITY may request additional financial or statistical reports with respect to the CENTER, and FIRM agrees promptly to provide same to the extent such reports are kept by the FIRM in the normal course of its business. Reports not so kept shall be funded as a reimbursable expense as approved by the Executive Director. It is agreed that such requests by the CITY will be reasonable with respect to timing, content and repetition - 10 - 92- 490 and that any and all cost incurred in the preparation of such additional reports shall be included as operating expense. Any additional personnel required may be employed provided funds for same are approved by the Executive Director. 5. EXPENDABLE SUPPLIES: a. The FIRM will be responsible for purchasing all expendable supplies for the operation of the CENTER from funds provided in the CITY approved budget. The FIRM will exercise prudent judgment in the purchase of said supplies within budget guidelines. b. To the extent the prices are competitive and it is cost effective, the FIRM shall, whenever feasible, purchase such supplies from bona fide small or minority businesses with residency in Miami. 6. OPERATING BUDGET: a. The FIRM agrees that each year on a date specified by the CITY it will (with thirty (30) days prior written notice], prepare and present a line item budget for the CENTER, which budget will follow the existing CITY budget process. Said budget shall, include a projected income and expense statement and projected year-end balance sheet and statement of projected sources and applications of funds. Additionally, the budget shall include but not be limited to the following detailed projections: 1. Gross revenues by department and sources; 2. Operating expenses by department; 3. Departmental incomes; - 11 - 92-- 490 4. Administrative and general expenses; 5. Marketing, advertising and promotion expenses; 6. Energy costs; and 7. Repairs and maintenance. b. It is understood that the FIRM, in accordance with provisions to be agreed, shall be given a budget effective (October 1) of each fiscal year. It is the intention of the CITY to fund adequately the operation of the CENTER in accordance with the level of activities generated, and the FIRM is not obligated to fund the operations from the management fee. The FIRM's responsibility to manage, operate, maintain and perform its other obligations shall be dependent on the CITY's responsibility to approve and approve sufficient operating funds. CITY further agrees that its failure to provide such funding will relieve the FIRM from its responsibilities and obligations to perform under. this Agreement. It is further understood that the FIRM will not exceed any sums in excess of those amounts allowed in the approved budget of the CITY. In the event that the FIRM does so overspend, it shall be responsible for said sum and shall reimburse the CITY for said sum within thirty (30) days after the end of each contract year, or the CITY may withhold said sum from the fees due the FIRM. FIRM must request and receive approval to transfer funds within line items; such approval shall be requested in writing to the Executive Director and shall not be unreasonably withheld. It is further understood and agreed that the FIRM shall have the right to seek and a reasonable right to receive additional sums for extraordinary expenses to fund - 12 - 92-- 490 increased activity and revenue sources. Should such requests become necessary, the FIRM shall receive said additional funds only if approval in writing is given by the CITY after submission to the CITY, which approval shall not be unreasonably withheld or delayed. 7. OPERATING FUNDS: The CITY will advance to the FIRM, at the beginning of each contract year, an amount equal to one -sixth of the approved annual operating budget for the CENTER. Thereafter, CITY will advance to FIRM, on a monthly basis, such sums as are necessary to operate the CENTER, as provided for in the operating budget.' 8. AUTHORITY OF EXECUTIVE DIRECTOR: The Executive Director shall have all powers presently prescribed by the City Commission and exercise such powers under the direction of the City Manager, including but not limited to the following powers: a. To establish in conjunctiori with the FIRM and others on a continuing basis, operation policies in the form of an operational manual for the CENTER, so that at all times the best ,interests of the entire community and, to the extent possible, the entire convention and tourism industry in Miam..i will be represented. b. Together with the FIRM, to review annually the performance of the previous year to determine if the goals and criteria jointly established by the FIRM and the Executive Director on an annual basis, are being met and to promulgate such policy as they shall deem necessary. - 13 - 92- 490 a C. To monitor the activities and expenditures of the FIRM on behalf of the CENTER to ensure that said activities and expenditures conform to the policies set forth and to the budget approved by the CITY. d. To set a schedule of rents, rates, fees and charges for the use or occupancy of and for furnishing services in connection with CENTER as recommended and submitted by a CITY -- appointed consultant, as required by the CENTER's Trust indenture, and incorporating recommendations from the FIRM. e. To review, approve or disapprove or change the annual budget to be submitted to the CITY by the FIRM on behalf of the CENTER. f. Prior to approval of the budget, to cause an annual inspection of the CENTER, all installed and portable furniture and equipment and capitalized supplies, and any other such item that is the property of the CITY to be conducted to determine the condition of the same, to assess damages and file insurance claims or seek reimbursement from appropriate parties. This inspection will be performed by the CITY -appointed consultant specified in Section 8.d. above. g. Maintain in the CITY's offices at the CENTER a master reservation control of all meeting and function spaces of the HOTEL, UNIVERSITY and CITY. Executive Director will establish a standard reservation procedure, which will become part of the operations manual. h. All contacts between the CITY and the FIRM regarding the administration of this Agreement shall be directed through the Executive Director. - 14 - 92- 490 i 9. COVENANTS OF THE FIRM: a. FIRM agrees to exert its best efforts in managing and operating the CENTER so as to minimize operating costs and i maximize revenues, subject however, to the limitations of the - operating budget and/or funds available. b. FIRM agrees to be responsible for the administration of all agreements for use of the CENTER, and shall be responsible to collect all sums due ,from the users and the general public for the rental and use of the facilities. FIRM shall not extend credit to any user and/or the general public. Accounts receivable shall not be permitted unless authorized in writing in advance by the Executive Director. If FIRM grants credit to any party, it shall be solely responsible for collection and any monies not collected at the end of the fiscal year shall be deducted by the CITY from the next fiscal year management fee. C. To the extent the CITY makes funds available, the FIRM agrees to maintain the CENTER and its facilities in the condition received, reasonable wear and tear excepted. d. The FIRM agrees to provide services as necessary to accomplish FIRM's responsibilities pursuant to this Agreement; provided, however, that any and all obligations of the FIRM under this Agreement are subject to the CITY making available sufficient funds to the FIRM. 10. COVENANTS OF THE CITY: a. CITY agrees that prior to the effective date of - this Agreement, it will provide to the FIRM a full and complete 15 - 92-- 490 - furniture, fixtures and equipment audit and certifications of warranties governing all equipment contained in the CENTER. The CITY further agrees that as of the effective date of this Agreement all of its warranties on said equipment shall be enforced by the FIRM on the CITY's behalf. b. CITY agrees that if, and to the extent, any possessory interest tax or taxes which may be imposed or levied upon the FIRM in connection with this Agreement, said taxes shall be reimbursable to the FIRM as an operating expense to the extent permitted by law. This shall not include corporate business taxes. C. CITY warrants and represents that there are no other arrangements or agreements, verbal or written, that affect the rights or obligations of the FIRM other than the agreements referred to in this Agreement and/or the Trust's indenture. 11. CAPITAL IMPROVEMENTS AND REPAIRS: The CITY will retain the responsibility for capital improvements to the CENTER. The FIRM agrees to provide to the Executive Director on February 1 of each year, a schedule of items that can be reasonably anticipated as necessary capital expenditures. The purpose of such a schedule is to allow the CITY to include such projects in its budget for the ensuing year and to prepare and update a long range (five year) capital expenditure budget. "Capital Expenditures" means all expenditures for building additions, alterations or improvements, and for purchases of additional or replacement furniture, machinery or equipment, the depreciable life of which, according - 16 - 9�`- 490 to generally accepted accounting principles is in excess of one (1) year. All routine and minor repairs, maintenance, and -3 equipment servicing shall be the responsibility of the FIRM reimbursable to the FIRM as operating expense. All Capital Improvements must be approved in writing by the Executive Director in advance. CITY shall be responsible for the costs of all repairs - (structural and non-structural, interior and exterior), maintenance and/or replacement costs required to operate the _ CENTER and all its fixtures, signs, displays, equipment, machinery, appliances, appurtenances, improvements, alterations, -� systems (including but not limited to the plumbing and electrical _ systems, wiring and conduits, heating and air conditioning systems). Such repairs, maintenance and replacements, interior and exterior, ordinary as well as extraordinary, and structural _ as well as non-structural, shall be made promptly as and when necessary. All repairs, replacements and maintenance shall be of a quality and class at least equal to the original work. Any replacement of an item contained on the inventory schedule shall be deemed the property of CITY. FIRM shall advise CITY of necessary repairs and request that CITY make the said repairs. CITY shall notify FIRM within fifteen (15) days of receipt of the = FIRM's notice to repair as to whether CITY wants the repairs made. However, if such repairs are of any emergency nature, FIRM _ may at its option make such repairs in accordance with the following provisions. 92- 490 In case of an emergency repair, the FIRM may proceed to make same in which case CITY shall reimbu rse FIRM for the full amount of the repair. An emergency repair is defined herein as the repair of a condition, which, if not accomplished immediately: - 1. Creates a dangerous and/or unsafe condition at the CENTER; or 2. Is needed to permit a scheduled event at the CENTER to take place. 12. INSURANCE: The FIRM agrees to obtain through the CITY and subject to budgetary constraints of the operating budget, insurance coverage as specified below, and agrees to maintain such required insurance in force, as a reimbursable expense, during the term of this Agreement. No modification or change in insurance shall be made without ninety (90) days written advance notice to the CITY. _ a. Worker's Compensation Insurance - as required by Chapter 440, Florida Statutes. b. Comprehensive General Liability Insurance - with at least a combined single limit for bodily injury, and property damage liability of $1,000,000.00 per occurrence. The Products and Completed Operations and Contractual Liability exclusions shall be eliminated. The policy shall be endorsed to include personal injury liability coverage. C. Automobile Liability Insurance - covering all r owned, non -owned and hired vehicles used in connection with the work, in amounts of $1,000,000 per person - $31000,000 per occurrence for bodily injury liability and $3,000,000 per occurrence for property damage liability. �-M 92- 490 d. The FIRM agrees to carry a Fidelity Bond in an amount not less than $1,000,000 on all officers, employees, and agents who have custody of or access to any revenues, monies or securities of the CITY in connection with the CENTER operations. e. Professional Liability Insurance - with respect to advertising, promotion and booking of the facilities, with limits of $5,000,000 per occurrence. f. Additionally, the FIRM shall carry $9,000,000.00 Insurance Umbrella -Type policy taking effect on top of the base $ 10,000,000.00 coverage required above. g. The CITY and the FIRM shall be named as additional -named insured, as each of their interest may appear in the insurance policies described hereinabove. All costs of insurance are reimbursable by the CITY to the FIRM as an operating expense, including any deductible amounts under such insurance. CITY will promptly, but no later than the date of commencement of FIRM's engagement, provide to FIRM evidence that it is either self -insured or has obtained insurance as set forth in this Section 12 from the type of insurance carrier noted below that will adequately protect against property damage to the CENTER and all its contents, including fire insurance, hurricane, wind, water, flood insurance and extended coverage. In the event CITY obtains coverage on FIRM's behalf or self -insures for all or any part of this coverage, it acknowledges and accepts responsibility for any and all losses and will not seek recovery against the FIRM. - 19 - 92- 490 All insurance policies required of the FIRM above shall be issued in companies authorized to do business under the laws of the State of Florida. As minimum qualifications as to management and financial strength, the insurance company or companies must be rated no less than "A" as to management, and no less than "Class X" as to strength, by the latest edition of Best's Insurance Guide, published by Alfred M. Best Company, Inc., 75 Fulton Street, New York, New York. The party obtaining the insurance above stated agrees to furnish Certificates of Insurance to the other party prior to commencing any operations under this Agreement, which Certificates shall clearly indicate that the FIRM has obtained insurance in the types, amount, and classifications in compliance with this Section has-been obtained. CITY shall, upon receipt of certificates of insurance notify the FIRM within ten (10) days as to the acceptance of such insurance as meeting all terms and conditions of this Section and any other requirements contained herein relating to insurance coverage. CITY and FIRM agree mutually to waive all insurance subrogation rights each to the other. The City Manager is authorized to amend in writing the Agreement as to insurance requirements, upon recommendation of the City's Department of Risk Management. 13. GUARANTEE: In addition to the insurance and bonding requirements, FIRM will guarantee its contracted obligations provided the aggregate amount of liability which FIRM shall incur pursuant to such - 20 - 99- 490 OEM guarantee shall not exceed Five Hundred Thousand Dollars ($500,000.00). In consideration of such guarantee, the CITY agrees that if, for any reason, FIRM shall become liable to the CITY under any provision of this contract or for a breach of any provision of this contract CITY shall have no, and shall not seek any, recourse against FIRM or have any right to recovery against FIRM with respect to such liability including Section 14 hereof, beyond the scope of such guarantee notwithstanding the fact that FIRM may be inadequately capitalized and notwithstanding any other law or rule of law that otherwise would afford to the CITY such recourse. Limitations on said guarantee are acceptable to the CITY as long as the insurance and bonding coverage requirements subject to notice provisions outlined in Section 12 hereof remain in full force and effect. 14. HOLD HAP.NLESS : a. FIRM hereby indemnifies, defends and agrees to hold CITY and its officers, agents and employees, individually and collectively, harmless from and against any and all actions, claims, damages or costs (including, without limitation, attorney's fees and expenses and litigation expenses) they may suffer, sustain or incur in connection with, arising out of, or in any way related to, FIRM's gross negligence or willful breach under this Agreement. b. CITY hereby, subject to the extent and limits provided by the State of Florida Statutes, indemnifies, defends and agrees to hold FIRM and its directors, officers and shareholders, agents and employees individually and collectively, - 21 - 92- 490 Ask harmless from and against any and all actions, claims, damages or costs (including, without limitation, attorney's fees and expenses and litigation expenses) they may suffer, sustain or incur in connection with, arising out of, or in any way related to, CITY's gross negligence or willful breach under this Agreement. C. Each party shall give to the other prompt and timely written notice of any claim made or suit instituted within its knowledge that in any way, directly or indirectly, contingently or otherwise, affects or might affect the other party; and both the CITY and the FIRM shall have the right to participate in the defense of the same to the extent of their own interest. d. CITY acknowledges that FIRM had no involvement or responsibility, either direct or indirect, in the architectural. structural design and engineering or construction of the CENTER and therefore indemnifies and holds harmless, subject to the extent and limitations provided by the State of Florida Statutes, FIRM of all liability for the structure, design or equipment or E claims thereunder. 15. BOOKING POLICIES: a. The parties recognize and acknowledge that the interest of the CITY requires a booking policy that takes into account not only events which generate substantial direct revenues for the CENTER, but also events which produce less direct revenue, but generate significant transient occupancy tax_ and peripheral economic benefits in the form of increased tourist revenues and stimulate the general economy of Miami. - za - 92 - 490 r b. The City of Miami Department of Conferences and Convention will have primary responsibility for marketing the CENTER for conventions and trade shows, and to carry out this responsibility, will have control over all bookings more than eighteen (18) months in advance. The FIRM will assist the Department on an as -needed basis by providing resource people to work with the Department and, when requested and when budget appropriations permit, accompany them in their solicitation efforts. The Department may also book conventions and trade show events with less than eighteen (18) months' lead time if the dates have not been confirmed to other users and in coordination with the FIRM. Prior to committing any dates booked by the Department pursuant to this Section, Department will confirm with FIRM that the space can be properly converted, set up, equipped and furnished on the dates and times user desires it. In the event that a planned Department booking adversely impacts the FIRM's approved operating budget, then FIRM shall notify CITY of the extent of such financial impact. CITY must approve or disapprove in writing such contemplated Department booking. The FIRM may also book non -convention and trade show events with more than eighteen (18) months' lead time if dates have not been confirmed to other users. Approval of the dates booked in this matter shall be considered tentative until formally released by the Department of Conferences and Conventions. C. The FIRM shall have primary responsibility for and complete. control of marketing and scheduling the CENTER for all "near -term" dates (18 months or less in advance) not utilized by - 23 - 9?- 490 the bookings generated by the Department in order to generate additional income, and will have experienced personnel who will diligently promote the use of these dates. Markets for "near - term" dates will include locally and regionally oriented events such as consumer shows, spectator sports and entertainment, meetings and social functions and other special activities that = can be properly carried on in the CENTER. The FIRM shall have the right to promote events within the CENTER provided no CITY funds shall be used for such Promotions. 16. CONFLICTS OF INTEREST: a. The FIRM is familiar with the provisions of the Miami City Charter and Code, Dade Charter and Code, and Florida Statutes, and hereby certifies that it will make a complete disclosure to the CITY of all facts bearing upon any possible conflict, direct or indirect, with its performance that it believes any member of the Department of Conferences and Conventions, any CENTER employee or any other officer or employee of the CITY now has or will have. Said disclosure shall be made by the FIRM contemporaneously with the execution of this Agreement and at any time thereafter that such facts become known 1 to the FIRM. b. The CITY recognizes that the FIRM, or its affiliates may enjoy indirect economic benefits from the operation of the Center. However, the FIRM agrees that it will perform its obligation under this Agreement in a manner - consistent with the best interest of the CITY. Additionally, the FIRM shall, upon execution and approval of this Agreement, - 24 - 92- 490 provide to the CITY a listing of such known or anticipated ancillary income/revenue sources and their estimated annual amount. Said listing shall be updated on an annual basis no later than March 31 of each fiscal year. 17. COMPLIANCE WITH LAWS: The FIRM agrees to comply with all local, state, and federal ordinances, statutes, rules and regulations ("Legal Requirements"); provided however (i) that the CITY will cooperate to the extent necessary to enable compliance by the FIRM, and (ii) that if any Legal Requirements necessitates a structural change to the CENTER, CITY shall be responsible at its sole cost and expense for compliance with such Legal Requirements. The FIRM shall be responsible for obtaining any local, state or national licenses and permits to enable it to do business. 18. BUSINESS OF FIRM: a. The FIRM agrees not to enter into any similar management agreement for the operation of a public assembly facility within a one hundred (100) mile radius of Miami unless the said agreement is agreed to by the CITY. The CITY acknowledges that at the time of execution of this Agreement, the FIRM manages the operation of the Miami Arena. Although the Miami Arena is within a one hundred (100) mile radius of Miami this restriction shall not apply. b. The FIRM agrees that it shall not materially alter the nature of the services that its company offers in a manner that might impact on the operation at the CENTER without prior written approval of the Executive Director. - 25 - 9 2-- 490 C. The FIRM agrees, in all instances when Miami is in convention solicitation competition with other cities in which the FIRM has convention center operations, not to become corporately involved on behalf of another City in attempts to influence the decisionmaking process regarding selection of a convention site. Conversely, the FIRM will use best efforts in supporting the Department in all attempts to obtain exhibition and convention bookings for CENTER. 19. APPLICABILITY OF CHARTER AND CODE PROVISIONS: This Agreement is subject to the budget and fiscal provisions of the CITY's Charter and Code. This requirement shall be controlling against any and all of the other provisions of this Agreement. 20. RELATIONSHIP OF PARTIES: The CITY and the FIRM agree that the only relationship to be created is one for providing management services and that the FIRM is an independent contractor and not an agent, employee or partner of the CITY. The parties further agree that this Agreement does not confer any leasehold interest upon the FIRM. The FIRM shall have complete control over its employees in the method of performing their work. The FIRM retains the right to exercise full control and supervision of the services and full control of the employment, direction, compensation and discharge of all its employees. The FIRM agrees to be solely responsible for all matters relating to payment of its employees, including compliance with social security and withholding requirements and all the regulations governing such matters subject to - 26 - 99- 490 reimbursement by the CITY in accordance with Section 3c hereof. The FIRM agrees to be solely responsible for its own acts and those of its subordinates and employees. 21. QUIET ENJOYNENT: The CITY agrees that if , and as long as the FIRM keeps and performs each and every covenant, agreement, term, provision and condition on the part and on behalf of the FIRM to be kept and performed, the FIRM shall quietly enjoy its rights under this Agreement, without hindrance and molestation by the CITY. 22. RIGHT OF ENTRY: The CITY shall, through a reasonable number of its agents who are on officially assigned CITY business, and at all reasonable times, have the right to enter into and upon any and all parts of the CENTER for the purpose of examining the same for any reason relating to the obligations of the parties of this Agreement; provided, however, that said agents shall be required to first notify the FIRM's General/Facility manager of their presence. 23. WAIVER OF RIGHTS: In the event of any breach of any representation, covenant, warranty or provision made in this Agreement by either party, failure by the non -breaching party to assert or exercise any right, remedy or privilege, within one year after the actual or constructive notice of knowledge of the breach is received or obtained, shall constitute a waiver of such right, remedy or privilege. No other waiver shall be effective, unless in writing, and then it shall be effective only in the specific - - 27 - 92490 instance for which given. In no event shall waiver constitute a waiver of future rights, remedies, or privileges to which a party may be entitle by virtue of any breach. 24. RESOLUTION OF DISPUTES: a. Any issues requiring resolution that arise shall first be addressed by the General/Facility Manager and the Executive Director, who shall attempt to resolve them. b. If satisfactory resolution is not possible as hereinabove described, the issue shall be submitted by the Executive Director and the General/Facility Manager in writing, to a joint conference committee composed of two (2) representatives of the CITY and two (2) representatives of the FIRM. The President of the FIRM and the City Manager shall be ex-officio members of this committee, with the right to vote. The joint conference committee shall recommend policy to the CITY and the FIRM deemed by it to be appropriate and in the best interest of both parties and the general public with respect to such matter as: 1. Additions, deletions or changes or programs undertaken at the CENTER. 2. Additions, deletions or changes to the terms and conditions of the Agreement; and 3. Any other matters affecting the Agreement. 25. ARBITRATION: Any controversy or claim arising out of or relating to this Agreement or the breach thereof and not resolved under the terms of Section 24 herein, shall be settled by arbitration in - 28 - 92- 490 accordance with the Rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. 26. COSTS AND FEES: If any dispute arises by and between the parties, the prevailing party shall be entitled to the costs and reasonable attorney's fees from the losing party for the enforcement of any right included in this Agreement in arbitration, court of first jurisdiction and all courts of appeals. 27. DEFAULT AND TERMINATION: In the event the FIRM and the CITY are unable to resolve disputes in the manner called for in Sections 24 and 25 above, then the following provisions for termination may be exercised. a. Failure of the FIRM to perform satisfactorily any of its obligations as reasonably determined by the CITY, shall be cause for termination upon written notice from the CITY, with a sixty-day (60) period in which to cure such deficiencies as may exist. Failure to cure such deficiencies within said period shall result in immediate termination. b. Agreement with the FIRM may be terminated in whole or in part in writing by the CITY for its convenience; provided. the FIRM is given not less than one hundred twenty (120) days' written notice (delivered by certified mail, return receipt requested) of intent to terminate. In event of notice of termination, the FIRM shall take all necessary measures to mitigate termination expenses. - 29 - 92- 490 c. if termination pursuant to paragraph a above is effected by the CITY, the FIRM will be paid for work actually performed to the date of termination, plus any fee earned to date of termination, less the cost to the CITY of making good any deficiencies, correcting all work improperly performed, and any reasonable additional cost to the CITY for removing or replacing the FIRM, exclusive of fees paid to firm(s) hired to replace the FIRM. d. If termination pursuant to subparagraph b above is effected by the CITY, the CITY will pay for: 1. A termination fee equal to compensation earned to date of termination plus four (4) months of the current year management fee; 2. Any cost of lease cancellation for automobile and office equipment; 3. Any existing obligations to the FIRM resulting from wages not to exceed and limited to the following: The equivalent of four (4) weeks of salary for the General/Facility Manager, plus accrued vacation compensation. The equivalent of two (2) weeks of salary for all other employees, plus any accrued vacation compensation; and 4. Reasonable charges incurred in the removal of the FIRM property from the CENTER. e. Upon the effective date of a termination notice pursuant to paragraph a or b above, the FIRM shall (unless the notice directs otherwise) (i) promptly discontinue all services - 30 - 92- 490 affected, and (ii) delivery or otherwise make available to the CITY all data, documents, procedures, reports, estimates, summaries, and other such information and materials as may have been accumulated by the FIRM in performing its obligations, whether completed or in process. f. Upon termination pursuant to paragraph a or b above, the CITY may take over the work and see that the same is completed by agreement with another party or otherwise, all without liability to the FIRM. g. If, after termination for failure of the FIRM to fulfill contractual obligations, it is determined by a court of competent jurisdiction that the FIRM had not so failed, the termination shall be deemed to have been effected for the convenience of the CITY. , In such event, adjustment for compensation shall be made as provided in paragraph d above. h. Termination under the provisions of paragraph a above shall be deemed effective as a result of, but not limited to, the following actions: 1. The occurrence of, any act or omission on the part of the FIRM that deprives it of the rights, powers, licenses, permits and authorizations necessary for the lawful and proper conduct and operation of the services and activities authorized; 2. The filing by or against the FIRM of any petitions in bankruptcy either voluntary or involuntary, or the making by the FIRM of any assignment for the - 31 - y?•- 490 0 Y benefit of creditors, either of which actions shall automatically be basis for termination and bar the passing of any benefits to creditors, assignees, or transferees of the FIRM; 3. The abandonment, discontinuance, or assignment by the FIRM, without written consent of the CITY, of any or all of the operations and services permitted or required; 4. The failure of the FIRM to account for, and pay to the CITY, as provided in any and all amounts of gross revenues due and owing to the CITY from the FIRM; and 5. The cessation or deterioration of services for a period -that in the reasonable opinion of the CITY, materially and adversely affects the operation of the public services required to be performed by the FIRM. i. After substantial evidence has been presented supporting that an intentional or willful disclosure by the FIRM of leads for future bookings at the CENTER has occurred, the CITY may terminate the Agreement immediately. If termination pursuant to this paragraph is effected by the CITY, the FIRM will be paid for work actually performed to the date of termination, plus any fee earned to date of termination, less the cost to the CITY of making good any deficiencies, correcting all work improperly performed, and any additional cost to the CITY for removing or replacing the FIRM, exclusive of fees paid to firm(s) hired to replace the FIRM. 32 - 92- 490 I j. Failure of the CITY to pay when due any amount required to be paid under this Agreement, shall be cause for termination upon written notice from the FIRM, with a fifteen -day (15) period in which to cure such deficiency as may exist. Failure to cure such deficiency within said period shall result in immediate termination of the Agreement, at the option of the FIRM. k. The exercise by the CITY or FIRM of remedies and rights provided herein shall in no way affect any other right or remedy available to the CITY or FIRM subject to the limitations of the guarantee of Section 13 hereof. 28. FORCE MAJEURE: Except as otherwise provided, neither party shall be obligated to perform, and neither shall be deemed to be in default of its performance, if prevented by (a) fire, earthquake, hurricane, wind, water, flood, act of God, riot, civil commotion, or other matter or condition of like nature, including the unavailability of sufficient fuel or energy to operate the facilities, or, (b) any law, ordinance, rule, regulation, or order of any public or military authority stemming from the existence of economic controls, riot, hostilities, war, or governmental law and regulations. In the event of a labor dispute which results in a strike, picket or boycott, whether legal or illegal, affecting any of the facilities or services described in this Agreement, neither party shall be deemed to be in default or to have breached any part of this Agreement. - 33 - 9?- 490 Notwithstanding the above, in the event of an emergency threatening damage to persons or property as determined by the FIRM, the FIRM shall act in an expeditious manner to protect said persons or property. 29. ASSIGNMENT: The CITY is entering into this Agreement in recognition of and in reliance on the expertise, reliability and competence of the FIRM in matters pertinent thereto. The performance of the obligations imposed upon the FIRM under the Agreement will not be assignable by it to any other party without the written consent of the CITY as expressed in writing by the Executive Director, such consent not to be unreasonably withheld. Any purported assignment in contravention of this Section shall result in termination pursuant to Section 27.a. _ d -?; 30. PERSONNEL: a. The FIRM's General/Facility Manager shall be responsible for the total operation by the FIRM of the CENTER. _ =, It is also understood that the FIRM's General/Facility Manager shall devote full effort to the work pertaining to the CENTER. ,; b. The positions of the FIRM's General/Facility - Manager and Marketing Director are considered key to the successful operation of the CENTER. The FIRM shall seek and receive approval by the CITY of the individuals to serve in these, - i - s positions, and the CITY reserves the right to approve all replacements for these positions. The CITY shall not unreasonably withhold or delay such approval. The CITY reserves - the right to direct removal, for cause, of any of the FIRM's y 34 - 92- 490 personnel; provided, however, that any liability for such removal is to be borne by the CITY, and the CITY agrees to indemnify and hold harmless, the FIRM for any claim arising from such removal of a FIRM employee. C. All personnel employed at the CENTER shall be employees of the FIRM and shall not be deemed employees of the CITY. The employees and agents of the FIRM shall attain no rights or benefits under the Civil Service or Pension Ordinances of the CITY, nor the rights generally afforded classified or unclassified employees of the CITY, nor shall the FIRM or its employees be deemed employees of the CITY. The FIRM agrees to make every reasonable effort to recruit employees who reside in Miami. The FIRM agrees to be responsible for the hiring and -f direct remuneration of all permanent personnel necessary for the operation of the CENTER, as well as other temporary personnel such as gatekeepers, cashiers, ticket takers, ticket sellers, _ ushers, restroom attendants, electricians, first -aid attendants, and any other persons required to perform the services undertaken. d. The FIRM shall make reasonable and good faith s -! efforts to recruit employees to achieve a representative work force so that the percentage of each minority/sex group within each level of employment reasonably approximates or equals the racial and ethnic composition of the CITY. "Each level of employment", as used in the preceding sentence, includes management, supervisory, permanent and temporary personnel. - 35 - 92-- 490 1 Y a I] e. The FIRM will seek from the CITY on an annual basis a performance evaluation of the FIRM's General/Facility Manager and Director of Marketing by the Executive Director. if performance is found to be inadequate, upon written request by the Executive Director, FIRM shall remove the employee from CENTER within 30 days of the CITY's request. f. The FIRM agrees that the divulging or disclosure of any lead for future bookings at the CENTER by personnel of the FIRM to other competing public assembly facilities or individuals, including any public assembly facilities owned or operated by FIRM, is prohibited. The FIRM shall place in effect stringent policies and procedures designed to prevent such occurrence. In the event the Executive Director submits a written finding of fact of a specific disclosure of a lead by CENTER personnel supported by reasonable evidence, the culpable individual(s) shall be immediately terminated or transferred from the CENTER without any severance pay due from the CITY. CITY agrees that the transfer of an event to another venue shall not be sufficient cause to justify such termination. g. The following shall also be grounds for immediate termination or transfer from the CENTER and replacement of the General/Facility Manager, Director of Marketing or any other employee of the firm, without any severance pay due from the CITY, upon presentation of written findings supported by reasonable evidence, of: 1. Removal of City owned property to other facilities, without prior written approval by Executive Director. 36 - 92- 490 r 2. Failure to perform duties or meet budget projections. 31. RENTAL AGREEMENTS% a. The FIRM's General/Facility Manager shall have the authority to execute user rental agreements for the use of the CENTER in accordance with CITY -approved operations policy and rental rates. User rental agreements not in accordance with said operations policy and rental rates shall require the written approval of the Executive Director. Failure of the Executive Director to approve such agreements in a timely manner [three (3) days] shall obviate the necessity for such approval. b. Any user rental agreements or contracts for attractions, events and services in the CENTER existing at the time of execution of this Agreement shall be assigned to the FIRM, who shall assume and perform the obligations of the CITY in respect thereto, subject to adequate finding provided by CITY. 32. PROCEDURE FOR HANDLING INCOME: Income derived from CENTER rentals will be deposited no later than the next business day after receipt in a Revenue Account under the control of the Director of Finance from which the CITY alone can withdraw funds. Income derived from non - budgeted operations, which consists of enterprise accounts for such items as programs, exhibitor services, box office, etc., will be maintained in separate accounts operated and controlled by the FIRM. The FIRM shall control these accounts and maintain a balance sufficient to cover the operation of these non --budgeted enterprises operations for the following sixty (60) day period. With this exception, all revenue from operations will be - 37 - 92-- 490 deposited no later than the loth business day of each month in a Revenue Account from which the CITY alone can withdraw funds. Within sixty (60) days after the end of each year, the FIRM will provide to the CITY a complete financial statement for each enterprise account, which accounts shall be subject to audit. Cash control for building operations shall be accomplished through a combination of rigid accounting procedures and internal controls, verified by internal audit tests and an annual audit by an independent certified public accounting firm. Separate bank accounts shall be utilized for operating funds and box office receipts. The box office account shall be an escrow system that is zero balanced for each event. All disbursements shall be by dual -signature checks supported by requisition -purchase order procedures. Payrolls shall be processed through a separate imprest bank account, reconciled monthly, and tested via internal audit procedure. Reimbursable expenses for each event shall be coded for accurate accumulation to ensure all applicable costs shall be paid by the client. Advance deposits covering rentals and estimated costs shall be generally required to minimize collection programs. Credit references shall be checked on any new or questionable clients. 33. NOTICE: All notices required or permitted to be given pursuant to this Agreement shall be in writing and delivered personally or sent by registered or certified mail, return receipt requested. All such notices to either party shall be deemed to have been 38 - 92- 490 provided when delivered, if delivered personally, or five (5) days after depositing the same, postage prepaid, with the United States Postal. Service, addressed as follows: To the CITY: Executive Director City of Miami Miami Convention Center 400 Southeast 2nd Avenue Miami, Florida 33131 With Copy to: City Attorney City of Miami Dupont Plaza Center, Suite 300 300 Biscayne Boulevard Way Miami, Florida 33131 To the FIRM: With Copy to: 34. SEVERABILITY: Leisure Management Miami, Inc. Miami Convention Center 400 Southeast 2nd Avenue Miami, Florida 33131 Attn: Vice-President/General Manager Leisure Management International 11 Greenway Plaza Suite 3106 Houston, Texas 77046 Attn: Clifford N. Wallace, President Manuel Alonso, Esquire Suite 1170 2100 Ponce de Leon Boulevard Miami, Florida 33134 In the event any term, covenant, condition, or provision is held by any court of competent jurisdiction to be invalid, such invalidity shall in no way affect any other term, covenant, condition, or provision provided, however, that the invalidity of such term, covenant, condition, or provision does not, in the opinion of the CITY and the FIRM, materially prejudice either the CITY or the FIRM as they shall mutually agree in its rights and obligations. If the validity of any such term, covenant, - 39 - 9 2a- 490 condition, or provision should be determined materially to prejudice the FIRM in its rights or obligations contained in the valid terms, covenants, conditions, or provisions, or if the consequences or effect of the invalidity of any term, covenant, condition, or provision contained will be or may be to reduce any of the areas, spaces, facilities, benefits, or privileges that the FIRM otherwise would or might enjoy or be entitled to, the FIRM may, consequently, at its option, elect to terminate entire Agreement or to continue in full force and effect with only said invalid terms, covenants, conditions, or provisions eliminated. 35. THE AGREEMENT; GOVERNING LAW: This Agreement will (a) comprise the entire understanding between the parties; (b) supersede all prior agreements; and (c) shall be governed by the laws of the State of Florida with venue in Dade County, Florida. 36. AMENDMENTS TO AGREEMENT: No alteration or variation of terms shall be valid unless ;Wade in writing and signed by both parties, and no oral understanding or agreement not incorporated therein shall be binding on any of the parties. 37. GENERAL CONDITIONS: a. The FIRM agrees that there shall be no discrimination as to race, sex, religion, color, handicap, creed or national origin in connection with any operation under this Agreement. b. FIRM agrees to comply with all applicable laws; regulations, codes and ordinances of the United States, the State of Florida, Dade County and the City of Miami. - 40 - 92- 490 y C. Titles and captions are for clarification only and are not to be considered part of the terms of this Agreement. d. This instrument and its attachments constitutes the sole and only Agreement of the parties hereto relating to said Agreement, and correctly set forth the rights, duties and obligations of each other as of its date. Any prior agreement, promise, negotiations, or representations not expressly set forth in this Agreement are of no force or effect. e. CITY reserves the right to audit the records of FIRM relating to this Agreement at any time during the performance of this Agreement and for a period of three (3) years after final payment is made under this Agreement. f. Each party represents to the other that it has the powers to enter into this Agreement and that the consent of no other person or entity (governmental or otherwise) is required in connection therewith, except as otherwise provided in this Agreement and that this Agreement constitutes a valid and binding obligation of such party, enforceable against such party in accordance with the terms hereof. IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed by the respective officials thereunto duly authorized, this the day and year first above written. ATTEST: FIRM: Leisure Management of Miami, Inc. SECRETARY By: [CORPORATE SEAL) - 41 - 92- 490 a ATTEST: MATTY HIRAI CITY CLERK APPROVED AS TO FORM AND CORRECTNESS: A. QUINN JONES, III CITY ATTORNEY A APPROVED AS TO INSURANCE REQUIREMENTS: -.t SWAN S. CHHABRA, DIRECTOR DEPARTMENT OF RISK MANAGEMENT CLL:ra:M344 7/1/92 3:30 P.M. - 42 - 0 CITY OF MIAMI, a Municipal Corporation of the State of Florida CESAR H. ODIO CITY MANAGER 92- 490 f City of Miami / Universit of Miami -- .- JAMES L. KNIGHT INTE NATIONAL CENTER M••yy •IrAiL wraw 4� Y Y 1 aaeaapq ,`'l r�'a•ca • • • ILI A H 10 01 ■ i►1-1 f: r, i vo ov1/Gi!!!1 MATIONA J •�• Elm J 3 Gi�� 1" ',. ' 1 r l -01.11: III ` L E A S E THIS LEASE made and entered into this is t day of July 1983 , between the CITY OF MIAMI, a municipal corporation under the laws of the State of Florida (hereinafter called the "City"), as Lessor, and the UNIVERSITY OF MIAMI, a corporation not for profit organized and existing under the laws of the State of Florida (hereinafter called the "Univer- sity"), as Lessee, WITNESSETH: WHEREAS, in connection With the construction of a downtown Conven- tion Center by the City on a site bounded on the south by the Miami River, on the east by S. E. 2nd Avenue, on the west by S. E. 1st Avenue, and on the north by an irregular boundary bounded in part by the 1-95 feeder ramp and in part by S. E. 2nd Street (hereinafter called the City of Miami/University of Miami, "James L. Knight International Center"), the City has constructed a Conference Center to be leased to the Univer- sity under the tetras of this Lease (hereinafter called the "Conference Center"); and WHEREAS, the City desires to lease to the University and the Univer- sity desires to hire from the City the Conference Center on the terms and conditions hereinafter set forth; NOW, THEREFORE, in consideration of the rents, covenants, and agreements hereinafter reserved and contained on the part of the University to be paid, kept and performed and conditioned upon the performance of the covenants and agreements upon the part of the City to be kept and performed, the City hereby leases to the University and the University 92-- 490 V 2 I-) hereby takes and hires from the City the Conference Center as more particularly described in Exhibit A, Drawings dated February 15, 1982 described as follows: Drawing A-13 (Lobby Level-26' 6"), Drawing A-19 (Convention Level-46' 6") Drawing A-20 (Convention Level"46' 6"), Drawing A24 (University Level-61' 6"), Drawing A-25 (University Level-61' 6") which Exhibits have been examined and initialed by the parties hereto and are hereby made a part hereof, together ` with the appurtenances, furnishings and equipment therein, and the easements and right-of-way reserved to the City of Miami which are set forth in Exhibits A and B attached hereto and made a part hereof, upon and subject to the convenants and agreements, terms, provisions and conditions hereinafter set forth. ARTICLE I. NAME OF CENTER, INITIAL TERM OF THE LEASE AND RENEWALS THEREOF, POSSIBILITY OF EXPANDING AREA OF CONFERENCE CENTER 1.01 The Convention Center shall bear the name: CITY OF MIAMI/ UNIVERSITY OF MIAMI JAMES L. KNIGHT INTERNATIONAL CENTER. • 1.02 This lease shall be for a term of thirty (30 years - hereinafter called the "Initial Term") to commence as of October 1, 1982 - and to expire on September 30, 2012. 1.03. (a) Subject to the provisions of this Section both the University and the City shall have the right to renew this Lease on the same terms and conditions as contained herein for two successive additional terms of thirty (30) years each, the first to commence on October 1, 2012 and to expire on ug 92- 490 September 0, 2042 (hereinafter called the "First Additional Term") and the second to commence on October 1, 2042 and to expire on September 30, 2072 (hereinafter called the "Second Additional Term"). Either the University or the City may, by certified mail, inform the other party of its intent to exercise the renewal option of this Lease by furnishing the opposite party, one (1) year prior to the expiration of the =- • initial term or the First Additional Term, whichever is then in effect, written notice to renew the Lease for the next renewal term and such renewal shall become effective unless within sixty (60) days of receipt of such notice the party receiving it shall refuse to renew. (b) Upon having furnished such notice unless there is a refusal to renew this Lease is to be renewed and no further instrument shall be necessary to effect such renewal. (c) In the event that the City furnishes such notice of intention to renew this Lease and the University furnishes timely notice refusing to renew, the Lease herein and all interests shall terminate and no future responsibilities shall accrue hereunder. (d) In the event that the University furnishes such notice of intention to renew this Lease and the City furnishes timely notice refusing to renew, the City agrees that the University is entitled to be made whole for the remainder of the renewable option periods and the University will be paid in an amount sufficient to replace at a different location the facilities covered by the remaining renewable option periods 92-- 490 4 and the amount of income lost by reason of the refusal of the City to renew same. (e) In further consideration for each renewable option period, the University agrees that it will refurbish, up -date and modernize its equipment and furnishings within one year El after the commencement of such renewable term or show evidence • that it has done same before the commencement of such renewal term. ' 1.04. The University � ty shall have the right within the original term of this Lease upon ninety (90) days notice to the City to expand i the Conference Center by adding thereto from time to time additional _ 9 space in the Convention Center upon paying to the City, concurrently with delivery by the City to the University of possession of the area being added to the Conference Center, as additional Basic Rent an amount equal to $81.30 net per square foot, up to a total pf 6,277 net ` square feet (for which the total additional Basic Rent would be Five Hundred Ten Thousand, Three Hundred Twenty Dollars ($510,320). The area in which such additional space may be added to the Conference Center is to be on the A-3 level (Convention Level - 46' 6") and presently consists of eight 30-seat seminar rooms as cross hatched on Exhibit A. If the University elects to add to the Conference Center less than all of the eight 30-seat seminar rooms the area to be added shall be such that the remaining seminar rooms will be conveniently usable by the City. When 4 the additional area or areas have been added to the Conference Center all provisions of this Lease which apply to the original area comprising the Conference Center shall also apply to the additional area. 92- 490 so 5 # 1'.05. *The parties hereto recognize that it may be desirable for the Conference Center to be expanded beyond the area provided for in Paragraph 1.04 hereof. If the University Wishes to have additional space the City agrees to give preferential consideration to adding space to the Conference Center area upon payment of additional Basic Rent in an amount to be agreed upon by the parties at the time additional space is agreed upon. ARTICLE IL.• DEFINITION OF CERTAIN TERMS 2.01. Wherever in this Lease the term "Conference Center" appears it shall be construed to mean the areas covered by this Lease, together with all fixtures and equipment necessary for the operation thereof, including all heating, air conditioning, lighting, plumbing and electrical appliances and equipment and all furniture and furnishings at any time located therein, including auditorium seats, carpeting and draperies and similar decorative furnishings, and stage lighting and equipment, together with any and all replacements thereof or additions thereto, provided, however, the term does not include movable furniture, furnishings and equipment installed by the University. 2.02. Wherever in this Lease the term "Term of this Lease" or words of similar import appear they shall mean either the Initial Term or the First Additional Term or Second Additional Term, whichever is then in' effect. 2.03. The term "Fiscal Year" as used in this Lease shall mean any twelve (12) month period commencing on October i of one year and ending on September 30 of the next succeeding year. 92- 490 2.04. The term "Central Mechanical Plant" shall mean the Central Mechanical Plant including all equipment needed for the purpose to be constructed by the City for the supply of chilled water, hot water, water, gas, air, electricity and other utilities to the various improvements located in the Convention Center (including those needed to supply utilities and air conditioning for the Conference Center), which Central Mechanical Plant includes water tanks, cooling towers, and service lines to and from said Plant to various portions of buildings located within the Center site. 2.05. The term "Convention Center" as used in this Lease shall mean the land, buildings and improvements situated in the City of Miami, County of Dade, State of Florida, located upon the site described in the recitals of this Lease. 2.06. The term "Public Areas" as used in this Lease shall include all grounds and public areas, sidewalks, plazas, stairways, tunnels, bridges, pools and parkways located within the Convention Center site other than those included in the Conference Center and those which are leased to other tenants of the Convention Center. 2.07. The term "rent" as used in this Lease shall mean the basic rent payable by the University to the City. 2.08. The term "additional rent" as used in this Lease shall mean additional rent payable by the University to the City pursuant to the terms of this Lease. 2.09. The captions of this Lease and the table of contents, if any, are for convenience and reference only and in no way define, limit or describe the scope or intent of this Lease nor in any way affect this 0 92--- 490 Lease and are.not to be deemed or construed in any way as a part of this Lease nor as supplemental thereto or amendatory thereof. ARTICLE TIT. BASIC F-ENT, ADDITIONAL RENT AND REIMBURSABLE CHARGES 3.01. Basic Rent. The basic rent to be paid by the University to the City (from an escrow fund heretofore created by the parties hereto) shall be in the amount of $ 2,906,635.77 and shall be payable in the form in which the escrowed funds are held by the escrow agent at the time of the execution and delivery of this Lease and of the concurrent delivery of possession of the premises covered hereby by the City to the University. No basic rent shall be payable for either the First Addi- tional Term or the Second Additional Term. 3.07. Additional Rent. During each Fiscal Year of the term of this lease the University shall pay to the City as additional rent within thirty (30) days after presentation of a bill therefore the following: (a) Utility Costs. The cost as determined by meters of all utilities furnished to the University by the City through the Central Mechanical Plant. The City agrees that all utilities such as chilled water, hot water, water, gas, air j and electricity furnished to the University through the Central Mechanical Plant or otherwise shall be separately metered so as to reflect the actual consumption of such utilities by the University or in the event such metering is not practicable the City shall provide some standard of measure acceptable to the University for determining the correct:amount of usage. 92- 490 53 (b) Custodial and Maintenance Services. The cost of custodial and maintenance services, including personnel and labor costs, charges for materials, tools and equipment, charges -for contract services and such other charges incurred by the City in providing custodial and maintenance services to the Conference Center determined annually on the basis of the area covered by this Lease, with the University and the City agreeing on the cost'or in the event that they are not able to do so or if the quality of custodial and maintenance services is unacceptable, the University has the right to provide its own custodial and maintenance services which must, however, be at a level acceptable to the City. .(c) Additional rent covering the custodial and mainte- nance services shall be paid within thirty (30) days after presentation of a bill therefor. 3.03. Costs Not To Be Paid By University. The University shall not be required to pay any of the costs of the operation of the Conven- tion Center other than those specifically provided for in this Lease. Without limiting the generality of the foregoing, the University shall not be required to assume any cost of or for furnishing services to any other tenant of the Convention Center or any operation or maintenance of any public area or any cost of maintaining security and public safety within the total Convention Center, it being recognized by the City that providing of security and public safety is a public function and the expense thereof should be paid from public funds. A 92.-- 490 y 3.04. Year -End Adjustment. Within 180 days after the end of each Fiscal Year the City shall submit to the University a reasonably detailed statement setting forth: (a) The costs and expenses actually incurred by the City during such Fiscal Year upon which the University's additional rent is predicated; (b) The University's share thereof payable as additional rent; and (c) The calculations evidencing the method by which such additional rent was determined. If the aggregate amounts paid by the University as additional rent during such Fiscal Year shall exceed the aggregate of the additional rent shown due and payable on such statement, the City at the request of the University shall either pay the excess thereof to the University or j" credit such excess against payments of additional rent due from the -` University at that time or thereafter. If the amounts paid by the University on account of additional rent during such Fiscal Year shall be less than the additional rent which was required to be paid according to such statement, the University shall pay the deficiency to the City within thirty (30) days of ter.receipt by the University of said state- ment. In no event shall the University be chargeable for any•costs or expenses in excess of the prorated cost contemplated in this Lease without the prior written consent of the University. 3.05. Maintenance of Books and Records by City and Audit Thereof. The City shall maintain separate books of account and records reflecting, in accordance with generally accepted accounting procedures, the costs and expenses upon which the additional rent of the University 92-- 490 10 is determined. Within 180 days after the receipt by the University of the year-end statement required to be furnished by the City to the University, the University at its own cost and expense may cause such books and records to be audited by its own accountant or by any cer- tified public accountant duripg normal business hours. Iu the event that there shall be determined by reason of the University's audit that there has been an overcharge of additional rent by the City for such Fiscal Year, then the University may demand a refund of such amount and such refund; at the election of the University, may either be credited to the next payments of additional rent which become due until the refund has been used up or the University may require a refund in cash. In the event that the City does not accept the results of the Univer- sity's audit, the City shall have thirty (30) days after receipt of the results of such audit within which to so notify the University and such notice shall be deemed to automatically be a demand by the City that the matter be submitted to a panel of three independent certified public accountants (one chosen by the City, one chosen by the University, and one chosen by the two accountants) for their determination, which determination shall be binding upon both parties. In the event that the panel determines that the University is entitled to a refund, then such �j -€i refund shall either be paid within fifteen (15) days after written notice to the City of such determination or, at the election of the University, it may be applied to future additional rent next due. In _e the event the panel of accountants shall determine that there has been - i - an undercharge by the City for the preceding Fiscal Year, the amount thereof shall be paid by the University to the City within fifteen (15) days after written notice to that effect. Each party shall pay the 9`"- 499 charges of the accountant selected by it and shall pay 50% of the charges of the third accountant. ARTICLE IV. UNIVERSITY'S CONSTITUENCY IN -THE CONVENTION CENTER 4.01. In connection with this Lease the City agrees that the University in the operation of the Conference Center shall be the primary constituent institution of the Convention Center in the area of continuing -education. Included in any leases or agreements with other constituents of the Conference Center, the City will require an under- taking on the part of each constituent to respect the area of primacy of each other constituent. 4.02. In connection with the University's constituency in the •Convention Center the City and the University will support and use its best efforts to bring about the success of the Convention Center and the Conference Center as follows: (a) Each will be dedicated to providing the widest possible service to the public in their respective areas. (b) A cooperative and friendly working relationship will be maintained •among all the constituent institutions for the purpose of establishing the Center as being dedicated to the broadest public service and achieving operating economy and efficiency. (c) A recognition by the constituent institutions that the Convention Center is more than a physical home for those -� who occupy the premises, being also an important cultural center of the community which is dedicated to providing also 0 92_ 490 �7 10 12 continuing education for the residents of this area and as an inducement for visitors to attend activities conducted at the Center. 4.03. Subject to the University's obligations as set forth in this Article, the University shall retain complete autonomy over its operations and activities, including without limitation autonomy over its educational, financial and administrative affairs and policies. 4.04. The City has established a department headed by a Director who. is in charge of the operation of the Convention Center. The City agrees to continue such department so long as this Lease is in effect. The City also has created an Advisory Committee known as "City of Miami/University of Miami James L. Knight International Center Advisory Committee". Said Committee shall consist of nine (9) members mutually agreeable to the City and the University, each of whom shall be an individual of outstanding reputation for integrity, responsibility and business ability. The City Commission shall submit a list of five (S) nominees to the City Manager and the University Board of Trustees shall submit a list of four (4) nominees to the City Manager. The City Manager shall review each of the lists with the other party. If mutual . approval is not reached, additional nominees will be added to the respective lists until mutual agreement is reached by both parties. The final list, mutually approved by the City and the University shall be formally submitted to the City Commission for appointment to the Advi- sory Committee by the City Commission. In the approval process, the City Manager is to insure that in addition to all nine (9) selected Advisory Committee Hembers representing the best -interest of both the City and University in the James L. Knight Center they shall also truly ... 92- 490 13 represent ti' ultural, ethnic, and racial Wkgrounds of the community. The Director is to be appointed by the City Manager from persons recom- mended by the Advisory Committee. The department, the Advisory Committee and the method of selection shall continue throughout the term of this Lease and is an essential element of this Lease. 4.05. The City, shall not use, authorize or permit the use of the name of the University or of any symbol, device or other identifica- tion of the University for advertising purposes or in any other manner Without the express written consent of the University. The City and the University each agree to consult with the other with regard to changes in the decor of the Conference Center or the Convention Center and with regard to placement of art objects within the Convention Center. ARTICLE V. HOTEL AND PARKING GARAGE 5.01. The City has entered into agreements relating to a 1450! car parking garage and a hotel, both located on the Convention Center site. The City agrees that so long as this Lease is in good standing in ' either the initial or a renewal term the City shall cause the owner and operator of the parking garage to provide to the University adequate .parking, which in no event shall be less than 300 spaces. to be avail- able upon scheduled request for programmed events wherein the conference attendees will arrive by automobile, at the lowest rate charged to any other user and up to 25 spaces to be available on a continuous basis for administrative parking at the lowest rate charged to others who use space in -the parking garage. 92-- 490 5.02. The City also agrees during that period to cause the hotel operator to reimburse the University for conference staff adminis- trative services for arranging and coordinating conferences and bringing participants into the hotel rooms at not less then 152 of the University visitor room income together with amounts equivalent to traditional percentage payments and reimbursements for use of activities and services of the hotel normally paid to other agencies when providing or arranging for similar reservations or usage. 5.03. The University is to have schedule priority as to all facilities of the hotel for its conferences and visitors, including priority on the making of reservations. 5.04. The University is to have schedule priority in utilizing the hotel for training and internship purposes and special programs and -seminars in hotel management, hospitality and travel. 5.05. The hotel is to continue to operate as a luxury hotel having not less then 600 rooms throughout the term of this lease. • ARTICLE VI. CONTRACTOR'S GUARANTEES 6.01. The leased premises having been recently constructed may contain defects due to faulty materials or installation for which the City has claims against the contractor, subcontractors or manufacturers. The City agrees that at the request of the University it will either proceed against such contractor, subcontractors, or manufacturers on warranties which it has obtained or will assign such claims to the University so that it may proceed either in its own name or in the name of the City in connection with enforcement of any rights. 92- 490 LJ ARTICLE VII. USE OF CONFERENCE CENTER 7.01. The University shall have the right to use the Conference Center for all types of educational activities, with emphasis upon continuing education and for such other lawful activities as are within the scope of the purposes of the University and which do not violate areas of primacy of other constituent institutions within the Convention Center. 7.02. The University covenants that it will not use or occupy or permit to be used or occupied any part of the Conference Center for any dangerous, noxious or offensive trade or business and will not cause or maintain any nuisance in, at or on the Conference Center nor use the same for purposes other than as set forth herein. 7.03. The University shall have the right to make available for use by others the Conference Center or various portions thereof from time to time for uses similar to those for which the premises are to be used by the University and agrees to make the facilities available to the City and at the request of the City on a reasonable rental compare able to that paid by others for similar accommodations in the downtown area. 7.04. Proceeds from tuitions, fees, tickets, fund raising campaigns, or other sources of revenue of the University related to the use of the Conference Center shall be the sole property of the Univer— sity without accountability therefor to the City. 7.05. Rights and licenses pertaining to the University's activities shall be controlled exclusively by the University. The 92- 490 <vl University may permit others to use space within the Conference Center as may be appropriate in that regard. 7.06. The University shall have the sole and exclusive right and responsibility for the hiring of and administration of all personnel employed at the Conference Center and such personnel shall be employees of the University. Nothing in the Lease shall require the University to employ or engage or utilize the services of any City personnel or to prohibit the University from contracting with any outside person, firm or corporation for the performing of services in connection with the operation of the Conference Center which the University is required to perform under the terms of the Lease. J ARTICLE VIII. COMPLIANCE WITH LAWS, ORDINANCES AND ORDERS 8.01. The University throughout the term of this Lease at its own cost and expense shall promptly comply with all applicable laws and ordinances and the lawful orders, rules, regulations and requirements of all Federal and State governments, departments, commissions, boards and officers thereof relating to the Conference Center. The University also shall observe and comply with requirements of policies of public liabil- ity, fire and other policies of insurance which may at any time be in force with respect to the Conference Center. The City also shall comply at its own cost and expense with provisions, covenants and conditions of this Lease on its part to be observed and performed. 8.02. The City shall comply with all applicable laws, ordi- nances; and lawful orders, rules, regulations and requirements of all Federal and State governments, departments, commissions, boards and 92- 490 17 officers relating to structural or non-structural repairs or altera- tions. 8.03. The University shall have the right at its own cost and expense to contest by appropriate proceedings the validity or applica- tion of any law, ordinance, order, rule, regulation or requirement of the nature herein referred to and to postpone compliance therewith until after the final determination of any proceedings, provided that all such • proceedings shall be prosecuted with all due diligence and dispatch and if any lien; charge or civil liability is incurred by reason of non- compliance the University may, nevertheless, make the contest aforesaid and delay compliance as aforesaid provided that the University provides the City with security reasonably satisfactory to the City against any loss or injury by reason of such non-compliance or delay and prosecutes .the contest with due diligence, and further provided that the City shall not be subject to any criminal penalties or to prosecution for a crime by reason of such contest. ARTICLE IX. MAINTENANCE AND REPAIR OF THE CONFERENCE CENTER 9.01. The University covenants throughout the term of this Lease and any renewal thereof at its own cost and expense: (a) To maintain the leased area and keep the same in good order and condition and promptly make all necessary interior repairs. (b) To take good care of, repair, replace and maintain --•' the contents, equipment, furnishings, fixtures,, furniture and appliances in the Conference Center. The University shall 0 92- 490 18 1040 remove and dispose of any contents, equipment, furnishings, fixtures, furniture, and appliances which are worn out and shall install in the Conference Center in substitution for the property so remnvPd other property, either similar or dissimilar, appropriate for use in the Conference Center. When used in this Article the term "repairs" shall include replacements or renewals when necessary and all such repairs made by the University shall be at least equal in quality and class to the original work. • 9.02. Subject to the provisions of Section 13.01 hereof all additions, improvements, replacements and alterations to the Conference Center made or installed by the University and equipment, furnishings, fixtures and appliances which may be installed by the University in substitution for. equipment, furnishings, fixtures and appliances orig- •finally installed by the City shall immediately upon completion of the installation thereof be and become the property of the City without payment therefor by the City and at the termination of this Lease or any renewal thereof be surrendered to the City in good order and repair, reasonable wear and tear excepted. 9.03. The University covenants and agrees that it will maintain the Conference"Center or cause it to be maintained in such a manner that the standard of cleanliness and neatness adhered to in the Convention Center as a whole will be met. �� 92- 490 19 ARTICLE X. MAINTENANCE AND REPAIR OF THE CONVENTION CENTER BY THE CITY 10.01. The City covenants throughout the term of this Lease at the City's sole cost and expense: (a) To maintain the Convention Center property as a whole and keep the same in good order and condition and promptly make all necessary repairs thereto and renewals thereof, interior and exterior, structural and non—structural, ordinary as well as extraordinary, and foreseen as well as unforeseen. (b) To take good care of, repair, replace and maintain the contents, equipment, furnishings, fixtures, furniture* and appliances throughout the Convention Center and to remove and dispose of any contents, equipment, furnishings, fixtures, furniture and appliances which are Worn out and install in substitution therefor other property, whether similar or dissimilar, appropriate for use in the Convention Center. (c) To take care of, repair and maintain and replace machinery, fixtures, service lines, and equipment located throughout the Convention Center, including heating, ventilating and air conditioning systems. (d) The City has the right to require other lessees of areas within the Convention Center to assume the obligations of the City as set forth in subparagraphs (a), (b) and (c) above but the City shall not have the obligation to require any such lessee to perform such obligations. 92- Q9Q. C� 5 20 (e The City shall keepin good 'order and g repair in accordance with high standards of cleanliness and appearance and operation all public areas and common facilities in the Convention Center and take such steps as may be reasonably necessary to ensure proper maintenance and repair of all improvements located in the Convention Center and the con— tents, equipment, furnishings, fixtures and appliances there— in. ARTICLE XI. SERVICES TO BE FURNISHED BY THE CITY 11.01. The City shall operate, maintain, repair, replace and renew all machinery, fixtures, equipment and appliances constituting the Central Mechanical Plant and shall furnish chilled water, hot water, water, gas, air, electricity and all other utilities and services to the Conference' Center necessary for the operation of the heating, venti— lating and air conditioning systems therein. 11.02. In the event of a discontinuance or interruption of the operation of the Central Mechanical Plant or any other facilities used in connection with the furnishing of services to the Conference Center required to be furnished by the City under this Lease by reason of accidents, emergencies, strikes or the making of repairs or changes which the City is required to make under this Lease or by law or in good faith deems necessary or by reason of inability to secure proper supplies of fuel, chilled water, hot water, water, gas, air, electricity • or other utility or labor or by reason of any cause beyond the City's reasonable control, the City shall not be liable to the University for C1 inconvenience, annoyance, interruption or injury to the University so long as the City has used every reasonable effort to provide such service. 11_10_3t In pinch instance Qf an intermit-I.on of sp vifP the City shall exercise reasonable diligence to eliminate the cause of the stoppage and to effect restoration of service and shall give the Univer- sity reasonable notice when possible of the commencement and anticipated duration of the stoppage. In the event of any such interruption of service the bniversity shall have the right, but not the obligation, to procure service from any other source and if it does so it will not be obligated to again look to the City for such service but may do so at its option. ARTICLE XII. CHANGES AND ALTERATIONS 12.01. The University shall have the right to make alterations in the interior of the Conference Center, provided however that any such changes which affect other portions of the Convention Center shall not be made without first obtaining written consent of the City. Any such alterations shall be made at the sole cost and expense of the Univer- sity. 12.02. No change or alteration, whether or not the City's approval is required, shall be undertaken until (a) the University shall have procured and paid for all municipal and other governmental permits and authorizations, and (b) no change or alteration requiring the City's approval shall be undertaken until a statement in writing signed by the University setting forth the nature and extent of such change or 92- 490 (G 7 alteration and the estimated cost thereof shall have been submitted to and approved by the City. 12.03. Any alteration shall be conducted under the supervision of an architect or engineer selected by the University who shall be acceptable to the City and shall not be undertaken until detailed plans and specifications prepared by such architect or engineer have been submitted to and approved by the City, provided however that the City does not have the right to unreasonably withhold approval of plans and specifications. 12.04. Any change or alteration when completed shall be of such a nature so as not to substantially change the character nor adversely affect the value of the Conference Center or the Convention Center nor materially reduce the gross cubic content of the Conference Center or 'Convention Center nor impair the structural strength thereof nor diminish the utility of the area which is changed. 12.05. All work done in connection with any change or alteration shall be done promptly and in a good hand workmanlike manner and in compliance with -applicable municipal building and zoning laws and all other laws, ordinances, orders, rules, regulations and requirements of all Federal, State and municipal governments and appropriate depart- ments, commissions, boards and officers thereof and in accordance with orders, rules and regulations of the New York Board of Fire Underwriters or any other body thereafter constituted exercising similar functions. 12.06. The cost of any change or alteration shall be paid in cash or its equivalent from time to time as and when such cost or any installment thereof shall become due and payable so that the Conference 92- 490 23 = - Center area shall not be subjected to liens for labor and materials supplied or claimed to have been supplied to the University. 12.07. The University at its sole cost and expense shall main- tain Workmen's Compensation Insurance covering all persons employed in connection with the change or alteration and with respect to Whom death or bodily injury claims could be asserted against the City or the University and general liability insurance for the benefit of the City •• and the University expressly covering the additional hazards due to the change or alteration. The limits of the foregoing insurance shall be not less than those specified in Article XVIII, Section 18.01. All such insurance shall be in a company or companies of recognized responsibility authorized to do business in the State of Florida and all such policies or certificates therefor issued by the respective insurers bearing ..notations evidencing the payment of premiums or accompanied by other evidence satisfactory to the City of such payment shall be delivered to the City. 'The general liability insurance provided for in this Section may be effected by appropriate endorsement if obtainable upon insurance referred to in Article XVIII, Section 18.01. 12.08. The City covenants and agrees not to make any changes or alterations in or about the Conference Center or which would affect the usefulness of the Conference Center, whether structural or otherwise, without the prior written consent of the University. Any such changes or alterations shall be at the sole cost and expense of the City and shall be made in all cases subject to imposition on the City of the conditions imposed on the University in the previous Sections of this •- Article,'except that the name "University" whenever appearing in said 32- 490 (09 "�. 24 Sections shall be deemed to read "City" and the name "City" whenever appearing in said Sections shall be deemed to read "University". ARTICLE XIII. UNIVERSITY'S RIGHT TO REMOVE ITS EQUIPMENT 13.01. Notwithstanding anything to the contrary contained in Section 9.02. all furniture, furnishings, murals, works of art, equip- ment or fixtures owned by the University as of the date of the commence- ment of the. Initial Term of this Lease and theretofore or thereafter installed in the Conference Center shall be and remain the property of the University. At or before the expiration of *the -term of this Lease or at the expiration of a renewal term in the event the Lease is renewed, the University shall have the right to remove from the Confer- ence Center any furniture, furnishings, murals, works of art, equipment or fixtures at any time installed by the University in the Conference Center other than such thereof as shall have been installed by the University in substitution for or replacement of furniture, furnishings, • murals, works of art, equipment or fixtures owned and installed in the Conference Center by the City on the date of commencement of this Lease. The University shall restore the premises and pay for any damage or injury resulting from the removal of such furniture, furnishings, murals, works of art, equipment and fixtures. 13.02. Within three years after the commencement of the term of this Lease an inventory shall be made by representatives of the City and of the University of all furniture, furnishings, murals, works of art. equipmene and fixtures in the Conference Center owned by the University, • which said inventory shall be deemed annexed to this Lease as Exhibit S. 92- 490 25now Thereafter the University shall notify the City of all additions to and deletions from said inventory and shall afford the City the opportunity to verify the same. ARTICLE XIV. LIENS 14.01. In case any mechanic's lien shall be filed against the • Conference Center by reason of work, labor, services or materials supplied or -claimed to have been supplied to the University or anyone holding or occupying the Conference Center or any part thereof through or under the University in connection with any repairs, improvements, changes, alterations, reconstruction or other work, the University shall within thirty (30) days after written notice cause the same to be 'discharged by bonding, payment or otherwise. In case any mechanic's lien shall be filed against the Conference Center by reason of any work, labor, services or materials supplied.or claimed to have been supplied to the Center in connection with any repairs, improvements, changes, alterations, reconstruction or other work prior to the execution of the date of this Lease, the City shall within thirty (30) days after written notice cause the same to be discharged by bonding, payment or otherwise. ARTICLE XV. ASSIGNMENT, SUBLEASE, . CONFERENCE CENTER SALE AND MORTGAGING OF THE 15.01 The University shall have the right to assign or transfer this Lease or to sublease the Conference Center or any part thereof without the prior written consent of the City, provided that the ..0 assignee or transferee or sublessee shall be obligated to use the premises so assigned, transferred or subleased for the same purposes for which they can be used by the University under the terms of this Lease, and provided further that the City shall have a right of first refusal in the event of a sublease of the entire Conference Center or an assign- ment of this lease within thirty (30) days after receipt of written notice of an intention by the University to sublease the entire Confer- ence Center or assign this Lease. 15.02.' The City agrees that without the prior written approval of the University the City will not sell or dispose of the Convention Center or the Conference Center or any part of either or lease any part of the Convention Center to any other person, firm or corporation, public or private, if as a result of such sale, disposition, lease, assignment or transfer the City is no longer in a position to perform Its obligations to the University under the terms of 'this Lease. 15.03.' The City agrees that without the prior written approval of the University the City will not mortgage or otherwise encumber the Conference Center and will not mortgage, pledge or otherwise encumber this Lease. ARTICLE XVI. USE OF CONFERENCE CENTER BY CITY 16.01. The University hereby grants to the City and to entities which are using the Convention Center the right, privilege and license to use the Conference Center or portions thereof and the special equip - went and facilities located therein from time to time on a priority basis, provided however, that such use does not conflict with use by the ,� � _ 92- 490 27 University or use by others to which the University was committed prior to the request from the City. The University will use its best efforts to make available to the City at its request such space. The special equipment and facilities and the space will be rented to the City and at =— its request at rates which are comparable to that paid by others for similar accommodations in the downtown area, ARTICLE XVII. ,USE OF CONVENTION CENTER FACILITIES 17.01. The University and other entities using the Conference Center shall have the right to use the whole or any part of the Conven- tion Center and special equipment and facilities therein. Such use will be afforded cn a first priority basis to the University and at its request to such other entity when'the particular areas, equipment or facilities sought to be used have not previously been scheduled for City Convention Center programmed activities. The University or user will pay to the City for use of City owned space, equipment and facilities a reasonable rental comparable to that paid by others. The University is not obligated to pay rent for use of common areas such as corridors, hallways, toilets, stairs, etc. Also, the University is to be able to use Without payment of rent a secured storage area not to exceed 500 sq. ft. of interim storage space conveniently accessible from corridors and outside the building on the A-1 Terrace (9' 0^) Level, and an area In hallways, corridors, or •lobbies adjoining the Conference Center for various displays provided that such use of hallways, corridors or lobbies does not obstruct use by others and does not violate fire codes. 17.02 The City agrees that it will not rent on a regular and continuing basis to any other private or public educational institution 92-- 490 7- "o£ higher education for use which is similar to or would compete with the use which the University makes of the Conference Center. 17.03. The City and the University each agree that neither will solicit conferences or conventions offering educational or other programs similar to any program or convention previously conducted by the other party. • ARTICLE XVIII. INSURANCE 18.01. The City agrees throughout the term of this Lease: (a) To keep the Conference Center and the furniture and equipment therein .owned by the City insured against loss or damage by fire and such other risks as may be included in the - broadest form of extended coverage endorsement from time to time reasonably available, vandalism and malicious mischief and sprinkler leakage, all in an amount not less then 100% of the replacement value of the Conference Center and the above described equipment. The insurance shall have a loss payable , clause in favor of the University covering its interest in the j property as Lessee. The premium attributable to the proceeds of insurance payable to the University in the event of loss • shall be borne by the University and if paid by the City the City shall be entitled to prompt reimbursement. (b) To maintain for the benefit of itself and the University public liability insurance written'on a comprehensive _ general liability form protecting and indemnifying the City and the University against any and. all claims or damages to �`� 92- 490 persons or property or for the loss of life or property occurring upon, in or about the Conference Center or areas adjacent thereto, such insurance to afford protection to the limit of not less than $5 million in respect of bodily injury or death to one person and to the limit of not less than $10 million in respect of any one occurrence and to a limit of not less than $100,000 for property damage. (c) To maintain insurance against such other hazards and in such amounts as are usually insured against by owners of buildings of a similar class and character to the Conference Center. 18.02. All such insurance provided for in this Article shall be effected under valid and enforceable policies issued by insurers of recognized responsibility authorized to do business in the State 'of Florida. 18.03. Upon execution of this Lease and thereafter not less than thirty days prior to the. expiration dates of the expiring - policies theretofore furnished pursuant to this Article, originals or duplicates of the policy or policies of the character described in this Article issued by the respective insurers bearing notations evidencing the payment of premiums or accompanied by other evidence satisfactory to the University shall be delivered by the City to the University. 18.04. All policies of insurance provided for in Section 18.01 of this Article shall name the City and the University as insureds as their respective interest may appear and the loss, if any, under such policies shall be adjusted with the insurance companies by the City and the University but the proceeds shall be paid to the University to the 92- 490 aw • 30 - extent of its interest as Lessee and any remaining balance, if any, shall be paid to the City. Any proceeds of insurance covering loss of personal property, belonging to the University shall be paid to the University. All policies shall provide that any loss shall be payable to the City or the University notwithstanding any act of neglect of the City or the University which might otherwise result in forfeiture of the insurance and shall to the extent obtainable contain an agreement by such insurers that such policies shall not be cancelled without at least ten (10) days prior written notice to the University. In addition to the provisions for the purchase of insurance by the City, the University shall have the right to obtain insurance upon its own property located at the Conference Center with proceeds payable exclusively to the University. Such policies are to be at the sole expense of the Univer- • sity. 18.05..• Each party hereby releases the other party with respect to any claim (including a claim for negligence) which it might otherwise have against the other party for loss, damage or destruction with respect to its property (including rental value or business interest) occurring during the term of this Lease and with respect and to the extent to which it is insured under a policy or policies containing a waiver of subrogation or permission to release liability or naming the other party as an additional insured as provided in this Article. If notwithstanding the. recovery of insurance proceeds by either party for loss, damage or destruction of its property (or rental value or business interest)- the other party is liable to the first party with respect thereto or is obligated under this Lease to make replacement, repair or restoration of payment, then provided the first party's right of full 1 S recovery under its insurance policies is not thereby prejudiced or %i° 92- 490 otherwise adversely affected the amount of the net proceeds of the first pa+rty's insurance against such loss, damage or destruction shall be offset against the second party's liability to the first party therefor or shall be made available to the second party to pay for replacement, repair or restoration as the case may be. 18.06. The waiver of subrogation or permission to release referred to in the immediately preceding Section shall extend to agents of each party and its or their employees and to such agents and other persons and entities as and to the extent that such waiver or permission is effective as to them. ARTICLE XIX. DAMAGE OR DESTRUCTION 19.01. If the Conference Center shall be partially or totally damaged or destroyed by fire or other insured casualty, then whether or not the damage or destruction shall have resulted from default or neglect of the University or its employees, agents or visitors (and if this Lease shall not have been terminated as in this Article hereinafter provided) the City shall repair the damage and restore and rebuild the -Conference Center (subject to changes or alterations mutually agreed upon between the City and the University) with reasonable dispatch after notice to the City of the damage or destruction, provided however that the City shall not be liable for any losses to or be required to repair or replace any property. personal or otherwise, owned by the University, its ers nnel or others w p p t rs hick is damaged or destroyed by such casualty and provided further that the University agrees to turn over to the City the proceeds of insurance received by it for its loss as lessee under 92— 490 32 ( 'N the terms of this Lease or any renewal hereof to apply against the cost of such repair and restoration. If the Conference Center shall be partially destroyed by fire or other casualty there shall be no abatement in the basic rent but the additional rent payable hereunder shall abate to the extent that the Conference Center shall have been rendered untenantable for the period from the date of such damage or destruction to the date the damage shall • be repaired or restored, provided however that such abatement of addi— tional rental shall not exceed the net amount of any insurance proceeds paid to the City, if any, under any policy of business interruption insurance which it holds. If the Conference Center or a major portion thereof shall be totally damaged or destroyed or rendered completely untenantable on account of fire or other cause, the additional rents hereunder shall be abated to the extent of any insurance proceeds paid to the City,. if any, under any policy of business interruption insurance it may hold for the period from the date of the damage or destruction until the City, subject to the provisions hereof, shall have repaired, restored and rebuilt the Conference Center, provided however that should the University reoccupy a portion of the Conference Center during the period the restoration work is taking place and prior to the time that the same is made completely tenantable additional rent allocated to such portion shall* be payable by the University from the date of such occu— pancy to the date of tenantability. 19.02. Notwithstanding the foregoing, if the cost of so restoring -the Conference Center shall exceed 50% of the replacement cost thereof the City shall have the right to elect not to effect such restoration and in that event the University shall have the right to -7&' 92- 490 retain all proceeds of insurance received by it under the terms of the Lease free from any obligation to turn any portion over to the City. 19.03. If the Central Mechanical Plant or any other facilities used to furnish any utilities or other services to the Conference Center or if any of the public areas within the Convention Center shall be totally damaged or destroyed by fire or other casualty, the City shall repair the damage so as to restore the same to its previous condition with reasonable dispatch after notice to the City of the damage or destruction. If the hotel, stores or the parking garage to be .constructed on the premises are damaged or destroyed, the City will use its best efforts to cause the damage to be repaired so that the Conven- tion Center is restored to its condition. immediately prior to such damage. ARTICLE XX. CONDEMNATION 20.01. In the event the Conference Center or any part thereof is taken in condemnation, the award shall be paid to the University to the extent of its interest under the terms of this Lease and any renewal hereof. In this connection it is understood that no condemnation will be undertaken by the City of less than all of the Conference Center and if the City exercises its power of condemnation as to the whole of the Conference Center, the University shall be entitled to be made whole to the same extent as it would have been if the University terminated this Lease because of a default upon the part of the City. 92- 490 79 34 ARTICLE XXI. ACCESS TO AND INSPECTION OF THE CONFERENCE CENTER AREA 21.01. The University shall provide reasonable access to the Conference Center as way be necessary in order for the City to inspect, maintain and repair piping and other mechanical and electrical connec- tions, machinery and equipment servicing the Central Mechanical Plant, the Conference Center or any other portion of the Convention Center to • City personnel engaged in such inspection, operation, repair and mainte- nance. Such personnel shall also be granted access through the Confer- ence Center to other areas if necessary for purposes of servicing equipment serving other parts of the Convention Center. Such access shall be provided twenty-four hours each day, subject only to reasonable security regulations and procedures from time to time established by the City and the University. City personnel requiring such access shall be provided with necessary keys to effectively perform their duties. 21.02. The University agrees to permit authorized representa- tives of the City to enter the Conference Center area for the purpose of inspecting the same during the last year of the term of this Lease at reasonable hours and upon reasonable notice. ARTICLE XXII. INDEMNIFICATION 22.01. The University agrees to indemnify and save harmless the City against and from any and all expense, loss or liability paid, suffered .or incurred and against any and all judgments and claims by or on behalf of any person, including employees of .the City, firm or corporation (municipal or private) arising from: gp 92•- 490 (a) The conduct or management of or from any work or thing whatsoever done in and about the Conference Center; (b) Any condition of any portion of the Conference Center or any other area which the University is required to operate, maintain or repair under the terms of this Lease; (c) Any breach or default on the part of the University in the performance of any covenant or agreement on the part of the University to be performed pursuant to the terms of this Lease; (d) Any act or negligence of the University, or any of its agents, contractors, servants, employees or licensees; (e) Any accident, injury or damage howsoever caused to any person occurring during the term of this Lease in or about the portions of the Conference Center or any other area which the University is required to operate, maintain or repair under the terms of this Lease. The University will further indemnify and save the City harmless against and from any and all costs, expenses and liabilities incurred because of any such claim or action or proceeding brought thereon. In case any action or proceeding be brought against the City by reason of any such claim, the University upon notice from the City covenants to resist or defend such action or proceeding by counsel reasonably satisfactory to the' City, unless such claims shall be resisted or defended by the insurer under any policy of insurance. 22.02. The City agrees to indemnify and save harmless the University against any and all expense, loss or liability paid, suffered or incurred and against any and all judgments and claims by or on behalf 92- 499 �1 36 of any person, including employees of the University, firm or corpo- ration (municipal or private) arising from: (a) The conduct or management of or from any work or things whatsoever done in or about the Conference Center or in or about any other areas of the Convention Center which has been done by the City or which the City is required to do or perform under the terms of this Lease; (b) Any condition of any portion of the Conference Center or any other area of the Convention Center which the City is required to operate, maintain or .repair under the terms of this Lease; (c) Any breach or default on the part of the City in the performance of any covenant or agreement on the part of the City to be performed pursuant to the terms of this Lease; (d) Any act or negligence of the City, or any of its agents, contractors, servants, employees or licensees; (e) Any accident, injury or damage howsoever caused to any person occurring during the term of this Lease in or about the portions of the Conference Center or any other portions of the Convention Center which the City is required to operate, maintain or repair under the terms of this Lease. The City will further indemnify and save harmless the University against and from any and all costs, expenses and liabilities incurred because of any such claim or action or proceeding brought thereon. In case any action or -proceeding be brought against the University by reason of any w such claim, the City, upon notice from the University, covenants to resist or defend such action or proceeding by counsel reasonably 92- 490 • A 37 satisfactory to the University, unless such claim shall be resisted or defended by the insurer under any policy of insurance. ARTICLE XXIII. RIGHT TO PERFORM,. BY EITHER PARTY -ADDITIONAL RENT 23.01 If either party hereto fails to perform any of its obligations under this Lease within the applicable time limit herein, then the other party shall have the right, but not the obligation, to perform the' same without further notice or demand to the defaulting party and without waiving or releasing the defaulting party from any obligations of such defaulting party in this Lease contained. All sums paid by either party pursuant to this Section and all reasonable and necessary incidental costs and expenses in connection therewith shall be -paid either by adding or deducting, as the case may be, such costs and expenses from any installments of rent thereafter payable hereunder. All sums which may become payable by the University to the City under this Section shall be deemed additional rent hereunder and the City shall have (in addition to any other right or remedy of the City) the same rights and remedies in the event of the non-payment of any such sums by the University as in the case of default by the University in the payment of the rent and reimbursable charges. ARTICLE XXIV. CONDITIONAL LIMITATIONS - DEFAULT PROVISIONS 24.01. If, during the term of this Lease the University shall default in fulfilling any of the terms, covenants or. conditions of this Lease (other than the covenants for the payment of rent, additional rent 92- 490 38 or reimbursable charges), the City may give to the University notice of any such default or of the happening of any contingency in this Section referred to, and if at the expiration of 45 days after the service of such a notice the default or the contingency upon which said notice was based shall continue to exist, or in the case of a default or contin- gency which cannot with due diligence be cured within a period of 45 days, if the University fails to proceed promptly after the service of such notice and with all due diligence to cure the same and thereafter to prosecute the curing of such default with all due diligence (it being intended that in connection with a default not susceptible of being cured with due diligence within 45 days, because of unavoidable delays or for any other reason, that the time of the University Within which to cure the same shall be extended for such period as may be necessary to complete the same with reasonable diligence) the City may give to the University a. notice of intention to end the term of this Lease at the expiration of 10 days from the date of the service of such second notice, and at the expiration of said 10 days, the term of this Lease and all right, titled and interest of the University hereunder shall expire as fully and completely as if that day were the date herein specifically fixed for the expiration of the term of this Lease and the University will then quit and surrender the Conference Center to the City. 24.02 If (A) the University shall (1) file a petition in bankruptcy or voluntarily take the benefit of any insolvency act, or (2) file, under any law, a petition for the extension of the time of pay- meat, composition, adjustment, modification, settlement or satisfaction of the liabilities of the University, or for the reorganization not $,� 92- 490 involving the University's liabilities, or (3) institute any action or proceeding for the liquidation of the University, or (4) make an assign- ment for the benefit of creditors, or (B) if a permanent receiver shall be appointed for the property of the University by a court of competent jurisdiction by reason of the insolvency or alleged insolvency of the University and such receivership shall not be vacated or set aside within 60 days after the appointment of such receiver, or (C) if any .• execution or attachment shall be issued against the University and its interests under this Lease by a court of competent jurisdiction and the same shall not be vacated or set aside within 60 days after the same shall have been levied, then and in any such event the City may give to the University notice of intention to end the term of this Lease at the expiration of 5 days from the date of the service of such notice, and at the expiration of said 5 days, the term of this Lease and all right, title and.interest of the University hereunder shall expire as fully and completely as if that day were the date herein specifically fixed for the expiration of the term of this Lease, and the University will then quit and surrender the Conference Center. 24.03. If the University shall make default in the payment of the additional rent or reimbursable charges or any part of the same, and such default shall continue for 20 days after notice thereof by the City, or if*this Lease shall expire as in Section 24.01 or Section 24.02 of this Article, the City or the City's agents may immediately or at any time thereafter re—enter the Conference Center and remove all persons and air or any property therefrom, either by summary dispossess proceedings or by any suitable action or proceeding at law, or by force or otherwise, without being liable to indictment, prosecution or damages 92-- 490 s-- therefor, and repossess and enjoy said premises, together with all additions, alterations and improvements thereto. Upon the expiration of the term of this Lease by reason of the happening of any of the events hereinabove described in Section 24.01 or Section 24.02, or in the event of the termination of this Lease by summary dispossess proceeding or under any provision of law now or at any time hereafter in force, by reason of or based upon or arising out of a default under or breach of this Lease on the part*of the University, or upon the City recovering possession 'of the Conference Center in the manner or in any of the circumstances hereinbefore mentioned, or in any other manner or circum- stances whatsoever, whether with or without legal proceedings, by reason of or based or arising out of a default under or breach of this Lease on the part of the University, the University shall pay to .the City the rent and all other charges required to be paid by the University up to the time of such termination of this Lease, or of such recovery of possession of the Conference Center by the City, as the case may be. If this Lease shall be terminated pursuant to Section 24.02 of this Article, the City shall be entitled, notwithstanding any other provision of this Lease, or any present or future law, to recover from the University the maximum amount which may be allowed by or under any statue or rule of law governing any proceeding,of the nature described in Sec. 24.02. 24.04.. In the event that any dispute shall arise between the City and the University as to the University's obligations to make any payment or to take or desist from any action under the terms of this Lease, and such dispute is promptly referred by the University to arbitration pursuant to the provisions of Article XXXI hereof, no default shall be deemed to exist on the part of the University and the 92-- 490 .. TAT .�. .. 41 le period for remedying such default or breach shall not be deemed to commence until the date of the arbitrator's award determining such dispute, provided that: (a) The failure of the University to make such payment or to take or desist from such action shall not subject the City to any fine or penalty or to prosecution for a crime or cause the Conference Center to be vacated, or cause any lien on the Conference Center or the University's leasehold estate to be foreclosed or otherwise enforced; (b) The failure of the University to make any such payment or to take or desist from any such action shall not result in the cancellation of any insurance theretofore in effect with respect to the Conference Center. 24.05. The University waives and releases any and all rights of redemption under any law or statute now or hereafter in force or enacted in case this Lease is terminated by the City under any provisions of this Article or in case the University shall be dispossessed by a judgment or by warrant of any court or judge. The University also waives and will waive any and all right to a trail by a jury in the event that any action or proceeding shall be instituted by the City. The terms "enter". "entry" or "re-ent �� ry fire -entry", as used in this Lease, are not restricted to their technical legal meaning. 24.06. In the event the City defaults under the terms of this Lease, the University shall have the right to so notify the City and unless such default is cured within a period of 30 days after delivery of such notice in writing. the University shall have the right to terminate this Lease for cause 'and to receive from the City a sum of 92- All 42 money sufficient to replace the facilities covered by this Lease at a different location and to cover the amount of income lost by virtue of moving from the Conference Center Within the Convention Center to a different location. ARTICLE XXV. QUIET ENJOYMENT 25.01. The City covenants and agrees that the University, upon paying the rent and all other charges herein provided for and observing and keeping the covenants, agreements and conditions of this Lease on its part to be observed and kept, shall lawfully and quietly hold, _ occupy and enjoy the Conference Center during the term of its Lease without hindrance or molestation of anyone claiming by, through or under 'the City, subject to the terms of this Lease. ARTICLE XXVI. SURRENDER OF CONFERENCE CENTER 26.01. The University shall, upon expiration or termination of this Lease, surrender to the City the Conference Center in good order, condition and repair, except for reasonable wear and tear and damage, subject, however, to the provisions of Section 13.01 of this Lease. ARTICLE XXVII. CUMULATIVE REMEDIES, NO WAIVER, NO ORAL CHANGE 27.01. The specific remedies to which the City or the University .� may resort under the terms of this Lease are cumulative and are not intended to be exclusive of any other remedies or means of redress to gg 92- 490 which they may be lawfully entitled in case of any breach or threatened breach by either of them of any provision of this Lease. The failure of either party to insist in any one or more cases upon the strict perfor- mance of any of the covenants of the Lease, or to exercise any option herein contained, shall not be construed as a waiver or relinquishment for the future of such covenant or option. A receipt by the City of rent or any item of additional rent or reimbursable charges with knowl- edge of the breach of any covenant hereof shall not be deemed a waiver of such breach, and no waiver, change modification or discharge by either party hereto of any provision of this Lease shall be deemed to have been made or shall be effective unless expressed in writing and signed by both the City and the University. ARTICLE XXVIII. INVALIDITY OF PARTICULAR PROVISIONS 28.01. If any term or provision of this Lease or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Lease, or the application of such term, or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Lease shall be valid and be enforced to the fullest extent permitted by law. 28.02. It is the intent and the understanding of the parties to this Lease that each and every present provision of law required by law to be inserted in this Lease shall be and is inserted herein. Further- -"" , more, it •is hereby expressly stipulated that every such provision is to be deemed to be inserted herein, and if. through mistake or otherwise 99- jQQ 44 any provision is not inserted or is not inserted in correct form, then this lease shall forthwith upon the application of either party be amended by such insertion so as to comply strictly with the law and without prejudice to the rights of either party hereunder. ARTICLE XXIX. NOTICES 29.01 Any notice or communication which the City may desire, or is required to give to the University shall be in writing and shall be deemed sufficiently given if sent by registered mail, return receipt requested, addressed to the University for the attention of its: Associate Vice President for Business Affairs University of Miami 1507 Levante Coral Gables, FL. 33124 with copies of such notice to its: Dean of the School of Continuing Studies University Dir. of the 3.L Knight Ctr. University of Miami -150 S.E. 2nd Ave. 104 Merrick ' Miami, FL. 33131 Coral Gables, FL. 33124 or to such other persons or to such other address as the University may from time to time designate by written notice, and a copy of such notice shall be sent to counsel for the University at such address as the University may from time to time designate by written notice. The time of the giving of such notice or communication shall be deemed to be the time when the same is to be mailed in the City of Miami to the University. O 92- 490 45 29.02. Any notice or conanunication which the University may desire, or is required to give to the City shall be in writing and shall be deemed sufficiently given if sent.by registered mail, return receipt requested, addressed to the City for the attention of its: City Manager Miami City Hall 3500 Pan American Drive Miami, FL. 33133 with copies of such notice to its: City Clerk City Director of the James L. Knight Center 3500 Pan American Drive 150 S.E. 2nd Ave. Miami, FL. 33133 Miami, FL. 33131 or to such other persons or to such other address as the City may from time to time designate by written notice. The time of the giving of such notice.or communication shall be deemed to be the time when the same is to be mailed in the City of Miami to,the City. ARTICLE XXX. GRIEVANCE PROCEDURES 30.01. In the event that any dispute shall arise between (a) the University and any other constituent institution of the Convention Center with respect to their respective areas of primacy or (b) the University and the City with respect to performances by outside orga— nizations in the Conference Center or elsewhere in the Convention Center, and such dispute cannot be satisfactorily resolved through cooperative discussions between representatives of the disputants, then 92- 490 do 46 the *natter at issue shall, at the request of either party, be referred for prompt consideration to a special committee consisting of two -- representatives of each of the disputants, the chairman of such committee to be selected by the members thereof. The conclusion of a majority = of the members of such special committee shall be final and binding unless either of the parties is not satisfied with the conclusion of the committee, in which event such party may refer the matter to arbitration as hereinafter provided in Article XXXI. 30.02. The City represents that the other constituent insti- tutions under lease from the City shall be contractually obligated to comply with the procedures outlined in Section 30.01. ARTICLE MI. ARBITRATION 31.01. Arbitrable Issues. Subject to provisions of Section 30.01 if any dispute shall arise between the City and the University with respect to the interpretation, performance, and implementation of any of the provisions in this Lease, or as to the breach thereof or the exercise of any remedies thereunder except the provisions of Article XXXII hereof and the provisions of Section 1.03 hereof, the matter shall be subject to arbitration as hereinafter provided. 31.02. Arbitration Procedure. The arbitrators shall be appointed and the arbitrations conducted in the following manner: (a) The party desiring such arbitration shall give notice to that effect to the other party, specifying the name and address of the person designated to act as arbitrator in its behalf. Such notice shall also set forth the question or Cal/ � lei 4� questions at issue, the specific provisions of the Lease which it is claimed govern the determination of the issues to be arbitrated and contentions of the party arbitration with respect thereto. (b) Within 10 days after the service of such notice, the other party shall serve its written answer on the first party which answer shall .also specify the name and address of the person designated to act as arbitrator in its behalf. If the second party fails to notify the first party of the appoint- ment of its arbitrator within the time above specified, then the appointment of the second arbitrator shall be made in the same manner as hereinafter provided for the appointment of a third arbitrator. (c) The arbitrators so chosen shall meet within 10 days after the second arbitrator is appointed and if, within 20 days thereafter, said two arbitrators shall not agree upon a determination of the question in dispute, they shall them- selves appoint a third arbitrator; and in the event of their being unable to agree upon such appointment within 10 days after the time aforesaid, the third arbbtrator shall, upon the request of either party, be selected by the then President of the Dade County Bar Association. A hearing by the arbitrators so chosen shall be held within 10 days and the decision of such arbitrators shall be made within a period of 30 days after the appointment of such third arbitrator. The decision • in which an two arbitrators so appointed ppointed and acting hereunder • 92- 490 93 48 shall concur shall in all cases be binding and conclusive upon the parties. 31.03. Each party shall pay the fees and expenses of the one of the original arbitrators appointed by or for such party and the fees and expenses of the third arbitrator and all other expenses of the arbi-� tration shall be borne by the parties equally. 31.04. Notwithstanding anything to the contrary herein contained, the arbitrators shall not have the right or authority to add to, subtract from, amend, alter or otherwise change any of the provisions of this Lease. ARTICLE XXXII. MODIFICATION OF THIS LEASE 32.01. The University and the City recognize that after comple— tion of the buildings in the Convention Center, experience in the operation and use of such buildings and in the implementation of the objectives of the Convention Center may make it -desirable to revise this Lease in various respects so as to better effectuate the objectives and understandings of the parties herein set forth or to correct any unfair financial or other burden on either party or to correct any other inequities which may arise in the actual operation and performance of this Lease. Accordingly, it is agreed that at any time after the completion of the second full year of the term of this Lease and prior to the expiration of the seventh full year thereof any party feeling aggrieved by the operation of any of the provisions of this Lease may s propose a modification thereof and the parties will attempt to agree thereon, it being expressly understood that the present effect of this 92- 490 49 Lease shall not in any way be diminished or altered during the period or periods when such proposed modifications are being negotiated. ARTICLE XXXIII. BROKERAGE COMMISSIONS 33.01. The parties mutually agree that no broker brought about this Lease and each party represents and warrants that it dealt with no broker or agent in connection with the negotiation or consummation of this Lease or any arrangements with respect thereto. - ARTICLE XXXIV. COVENANTS TO BIND AND BENEFIT RESPECTIVE PARTIES 34.01. The covenants, agreements, terms, provisions and condi- tions of this Lease shall be binding upon and inure to the benefit of the City, its successors and assigns, and the University, its successors ! and assigns, subject to the provisions of this Lease. ARTICLE XXXV. VARIOUS COUNTERPARTS 35.01. This Lease may be executed in any number of counterparts, each of which shall be an original, and all collectively shall consti- tute one instrument. — 50 ARTICLE XXXVI. EFFECT OF AGREEMENT 36.01. The University and the City expressly acknowledge and agree that as of the date of execution of the within Lease, each and every provision of that certain Agreement dated April 1, 1977 made between the University and the City shall have no further force and effect whatsoever, but shall be superseded by the provisions hereof. . •• IN WITNESS WHEREOF, etc. Attes City Clerk .ti Approved as to Form and C rr tness: 4��/ /I ity ttorney Attest:It A Secretary, University of Miami Approved�.to Form and Correct ends: Legal Counsel, University of Miami City or M ami Cit Manager Howard Gary �W� Unive sit of i Assoc. Vice President for Business Affairs, 7` Oliver G.F. Bonnert 92- 490 TO Matty Hirai City Clerk I FROM• Al an I Poms Chief Architect CITY OF MIAM1. FLORIDA INTER -OFFICE MEMORANDUM DATE! October 14, 1987 FIL r: f: - SUSPECT Exhibit to the Lease With University of Miami REFERENCES: ENCLOSURES: Enclosed is an original set of drawings, Sheets A-13, 19, 20, 24, and 25, labeled "Exhibit AN and executed by the University of Miami officers on 9/30/82, which identifies the University's spaces in the City of Miami/University of Miami James L. Knight International Center. This set of drawings should be an exhibit to the Lease with the University dated 7/1/83 'and should be kept as part of the City's official records. Note the Lease was entered into later as part of the Agreement with the University. AIP:bf cc: Tony Pajares, Director -42&�.•. Conference b Convention Dept., w/copy Albert J. Armada, Manager, Property b Lease Management Div., w/copy _m < , m u V t S � 3 Z a z �j a zRs; �32 �Z2ss �eyE� j• pepp��� VZS p NR a p p pNpa Np• J? V•V N KpN S� TOC <Z 2 as << 3 � � Svnv %spa gRRp, !PAS $$aa 18< =iZ saa N s's2� �MN P,-n I a s ao -22 i § $ A < < <-C � § § A IQ12 12 I;AV asrs �a 3, 22 �L ry^^^^w^^^^^^N MI VINV1 YtOOO 000O NNYf 3 O 0000 1�1� h P P 0� P 000 u_ ��H UP F all x VjE;.! ;;Em VAS- J-a •� $3S3 RRf3 SiRR x�3 � ���i« A^� ���OFS �iC`� K K X M X X K X K X X X X X X X X K X X K X K X X M X X 6 3zidr ��A $13� FAA l4mmPir, nAn st .0 s � zv <<nu <o p�U <oU0 <o a•3 • ►z'- o N. .-I o ���� Ll CONVENTION HALL Cal LEVU1 iZM Nslll� S' Rds IOpp School Exhibit Room Dimensions Suuare aft Ceiling Height Reception Capacity Banquet Capacity Theatre Capaoty Room Capacity Conference Capaoty U•Shape Capaoty Capacity ®x ]0 LEVEL THREE _ CONVENTION HALL (varies) 16,000 36' 2,500 1,000 5.000 600 N/A N/A 73 ORANGE BLOSSOM 8910"x 296" 2,449 10U' 305 176 235 185 — — 12 Orange Blossom A 33'4' a 276` 891 1010" 110 64 85 65 28 — — Orange Blossom B 23.6' x 296' 667 10'0' 85 48 65 55 28 — — Orange Blossom C 33' x 276" 891 J010- 110 64 85 65 28 — — LANTANA 23' x 21' 483 9 0' 60 32 45 3b 20 — 3 BOUGAINVILLEA 42'4"x24'3" 1,008. 9'0' 125 72 100 75 40 — 6 BOUGAINVILLEA A or B 21 2" x 24'3" 504 910" 62 36 50 37 20 — — POINCIANA 42'4" x 241" 1.008� 9'(r 125 72 100 75 40 — 6 POINCIANA A or B 21'2" x 241" 504 y'Ir 62 36' 50 37 20 — — CAMELLIA 23' x 21' 483— 9V' 60 32 45 36 20 — 3 ALLAMANDA 23' x 21' 483• 910" 60 32 45 36 20 — 3 MARIGOLD 23' x 21' 483 910, 60 32 45 36 20 — 3 UM SI_MINAR 1 26' x 25' 650 91)' 80 50 80 40 NiA N,A 3 UM SEMINAR 2 27' x 25' 675 Q'0' 80 50 80 40 N;A N,A 3 UM SEMINAR 3 28' x 25' 700 910" 80 50 80 40 N,A N.A 3 9 9 "i` 490 UM SEMINAR 4 or 5 41' x 26' 1.066 4'0` 120 60 100 60 N A N.A UM AUDITORIUM 1Fixed Seats) NA NA N A N:A NA 444 444 NSA �N,A N:A NSA UM LECTURE HALL (Fixed Seats) NIA N A N A NiA NA N,A 117 N A NiA UM LEARNING CENTER 41'%26' 1.sw 910" 150 80 _ 125 75 40 N/A 9 _ '1 f/ 7/14/80 1 LEASE AND AGREEMENT FOR DEVELOPMENT BETWEEN THE CITY OF MIAMI, a Municipal Corporation �, ar the Laws of the State of Florida AND MIAMI CENTER ASSOCIATES, LTD. 1 Florida Limited Partnership DATED as of September 1133, 1979 , Restated to include all changes appearing in Fir:*. Supplement dated June 6, 1980. LEASE AND AGREEMENT FOR DEVEL,,x?MENT BETWEEN THE CITY OF MIAMI AND MIAMI CENTER ASSOCIATES, LTD. Section 1. DEFINITIONS •- 1.1 Additional Hotel Spaces 1.2 Air Spaces 1.3 Conference Center 1.4 Consultant ; 1.5 Construction Period 1.6 Consumer Price Index 1.7 Convention Center 1.8 Debt Service 1.9 Demised Premises 1.10 Developer's First Mortgage 1.11 Developer's First Mortgagee 1.12 Developer's Improvements 1.13 Easements 1.14 Excepted Premises 1.15 First Opens for Business 1.16 Hotel 1.17 Hotel Tower 1.18 Swimming Pool 1.19 Lease w Page 4 4 4 5 6 6 6 6 6 7 7 7 R F.: 7 7 8 8 9 9 9 9 92-- 490 t 1.20 Parking Garage 9 .a.. 1.21 Participation Interest 9 1.22 Premises 10 1.23 Project lb 1.24 Public Charges 10 1.25 Revenue Bonds 10 1.26 University Agreement 10 1.27 Work 10 1.28 Person 10 2. LEASE TERM • ' 11 2.1 Initial Term 11 2.2 Renewal Term 11 2.3 Lease Term _ 11 3. RENT 12 3.1 Base Rent 12 3.2 Additional Rent 12 3.3 Rent Days 15 ' 3.4 Payment of Additional Rent 16 3.5 Right to Audit 16 3.6 Offset 17 3.7 Books of Account 17. 4. I NXP.EMIENTAL COSTS 18 5. CONSTRUCTION OF THE HOTEL 19 5.1 Developer's Obligation to 19 Construct the Hotel 5.2 Submission of Design Development 20 Plans 5.3 Approval of Design Development 21 Plans by the City r .• 6. 7. S. 5.4 SuSmission of Final Developmelt 21 Plans 5.5 Approval of Final Development 22 Plans 5.6 Scope of Review by City 22 5.7 Substantive•Chances in•Plans 22 5.8 Contract for Construction 23 5.9 Conditions Precedent to Commence- 23 ment of Construction 5.10 Access -to Premises 24 5.11 Permits and Licenses 24 5.12 Progress Reports 24 5.13 Payment of Contractors and Suppliers 24 5.14 Mechanics' and Materialmen's Liens 25 CONSTRUCTION OF THE CONVENTION CENTER 26 6.1 City's Obligation to Construct 26 6.2 Additional Improvements by the City 26 6.3 Time for Performance by City 27 6.4 Commencement of Construction 28 UTILITY SERVICE 28 7.1 Hot and Chilled Water 28 7.2 Location and Quantity of Utility 29 Service 7.3 Agreement to Purchase and Sale 29 7.4 Cost of Utility Services 30 7.5 Interruption in Utility Service 30 7.6 Utilities 31 CONVENTION CENTER FACILITIES 31 8.1 Obligations of the City 31 9.2 Pre -Opening 31 92- 490 1 8.3 Use of Facilities Y 1 8.4 Maintenance of Convention Center 8.5 Intentionally Omitted 8.6 Management of Convention Center 8.7 Coordination of Maintenance and Repairs 9. PARKING 9.1 Construction of Parking Garage 9.2 Use of the Parking Garage 9.3 Approval of Plans by Developer and Time to Complete Parking Facilities 9.4 Agreements for Parking 9.5 Maintenance of Parking Garage 10. HOTEL &MANAGEMENT C 10.1 Contract with Hotel Manager 10.2 Operation of First -Class Hotel 10.3 Commissions and Discounts t = 10.4 Right of Inspection 11. EqCITY INVESTMENT CAPITAL AND MORTGAGE FI&NALUCING 11.1 Sufficient Funds to Construct Improvements 11.2 Developer to Furnish Name and Address of Mortgagee 11.3 Developer to Notify City of Other Encumbrances 4 ' 11.4 Rights and Duties of Mortgagee (a) Notice of the Developer's { Default C' (b) The Mortgagee's Rights Prior To Completion of Hotel 32 33 34 34 35 36 36 36 36 37 37 37 38 38 38 38 38 39 39 39 39 39 92-- 490 10-5 (c) Right of City to Complete 40 (d) The Mortgagee's Rights After 41 Completion of Improvements (e) Right of Mortgagee to Transfer 41 and Assign (f) Copy of Notice of Breach of 41 Covenant or Default (g) Right of a Mortgagee to Cure 42 a Breach of Covenant or Default by the Developer .(h) Additional Rights of a Mortgagee 42 Upon the Developer's Default 11.5 Obligations of Persons, Including a 43 Mortgagee, Acquiring the Leasehold ' Estate in the Demised Premises 11.6 Assignment by Mortgagee' 44 ' 11.7. Mortgagee's Right to a New Lease 44 11.8 Limited Liability 47 11.9 Amendments Subject to Consent 48 12. RESTRICTIONS ON USE 48 12.1 Authorized Uses 48 12.2 Gaming 49 -1 12.3 i Limitation on Retail Sub -tenants 50 13. PUBLIC CHARGES 50 13.1 Covenant for Payment of Public 50 _ Charges 13.2 Evidence of Payment of Charges 50 13.3 Payment of Public Charges 51 13.4 a Separate Taxable Interests 51 14. INDEMNIFICATION AND INSUi2ANCE 52 14.1 (a) Indemnification by Developer 52 (b) Indemnification by City 53 15. e 4 14.2 Insurance Coverage by Developer 54 (a) During the Construction Period 54 (b) Property Coverage After the 55 Construction Period (c) Use of'Insurance Proceeds 56 (d) Comprehensive General Public 58 Liability Coverage During Construction Period (e) Comprehensive General Public 59 Liability Coverage After Construction Period (f) Comprehensive Automobile 60 Liability Coverage (g) Workmen's Compensation 61 Coverage (h) Business Interruption and 61 Other Insurance ` (i) Limited Release of Liability 62 and Waiver of Subrogation 14.3 Non -Cancellation Clause 63 14.4 Certificates of insurance 63 14.5 Right of City to Obtain Insurance 63 14.6 Non -Waiver of Developer's Obliga- 63 tion 14.7 Mutuality of Insurance Obligation 64 14.8 Reasonable Deductible 65 14.7 Insurance Carriers: Mandatory 65 Coverage MAINTENANCE, REPAIR AND REPLACEMENT 66 15.1 Maintenance and Repairs 66 15.2 Reserve for Replacements 66 15.3 Waste 67 15.4 Alterations of Improvements 67 92- 490 107 16. FIRE OR OTHER CASUALTY 16.1 Developer's Duty - Any Loss or { Damage - 16.2 City's Duty - Any Loss or Damage 16.3 Partial Loss or Damage Not to Terminate Lease 17. CCNOE:• NATION 17.1 If There is a Total Taking 17.2 If There is a Partial Taking 17.3 Determination of Type of Taking - 17.4 Allocation of Awards 17.5 Takings of the Parking Garage - 17.6 Rights of the Developer's First - Mortgagee , - 18. DEFAULT - TERMINATION - 18.1 Default by the Developer 18.2 Default by City �} 18.3 Obligations, Rights and Remedies Cumulative 18.4 Non -Action on Failure to Observe _ r Provisions of this Lease 18.5 Non -Performance Due to Causes _ Beyond Control of Parties 18.6 Surrender of Demised Premises - 18.7 Ownership of ,Improvements = 18.8 Party in Position of Surety with ' Respect to Obligations 19. QUIET ENJOYMEtoIT - 20. MISCELLANEOUS 20.1 Non -Discrimination - ll - ! 20.2 Equal Opportunity Provisions �U� 67 67 68 71 72 72 72 73 74 75 76 77 77 79 81 81 81 83 83 83 84 84 84 85 02-- 400 I 20.3 Certification of Nonsegregated 86 Facilities 20.4 Internal Revenue Code Compliance 87 9 20.5 Participation in Civic Functions 87 ' at Convention Center 20.6 Assignment by Developer 88 20.7 Notices 88 20.8 Conformance to Law and 89 Representations 20.9 Invalid Provisions 89 20.10 Applicable Law and Construction 89 20.11 Amendments 90 20.12 Gender and Number 90 20.13 Award of Contract _ 90 20.14 Public Park and River Walk 90 20.15 Development of Patricia Hotel Site 91 20.16 Agreements With The University 91 20.17 Use of University Space 91 20.18 Estoppel Certificates 92 20.19 Clarification of Intent 92 (a) Property Subject to Mortgage 92 (b) Identification of As -Built 92 Plans (c) Entire Lease in One Document 93 20.20 Date of Effectiveness of Lease 93 20.21 No Merger With Fee 93 l 92-- 490 lad r' r• LEASE AND AGREEMENT FOR DEVELOPMENT t - THIS LEASE AND AGREEMENT FOR DEVELOPMENT made and entered into at Miami, Florida as of this 13th day of September, 1979, by and between THE CITY OF MIAMI, a municipal corporation under the laws of the State of Florida (hereinafter referred to as the "City") , and MIAMI CENTER ASSOCIATES, LTD., a Florida limited part- nership and its successors and assigns (hereinafter referred to as the "Developer"); W I T N E S S E T•H WHEREAS, pursuant to Ordinance No. 7221, adopted by the City Commission on July 1, 1964, and the approval of the voters of the City at an election held September 29, 1964, the bonds of the City in the principal amount of Four Million Five Hundred Thousand and no/100 Dollars ($4,500,000.00) were sold and delivered by the City on.. May 6, 1969, and the proceeds of such bonds, with other funds, have been or shall be applied to the Payment of the cost of constructina a convention center for the City, including parking facilities, appurtenances, land and equipment and any necessary clearing, filling in, extending, enlarging or improving the site therefor; and INIiEREAS, the City to enhance the success of the convention center entered into an agreement dated April 1, 1977 with the University of �%Iiami, a nonprofit corporation organized and existing under the laws of the State of Florida (hereinafter referred to as the "University") wherein the 'University agreed to lease and operate a conference center as a part of the convention center (said con- ference center being herein designated the "Conference Center" and said convention center and conference center, collectively, being designated "City of Miami/University of Miami James L. Knight International Center" and herein called the "Convention Center"); and WOEREAS, said agreement among other things, provides that the University shall make available Two Million Five Hundred Thousand and no/100 Dollars ($2,500,000.00) with certain earnings thereon to the City as advance rent'for the Conference Center on the condition that the City cause to be constructed- a luxury hotel of not less than 250 rooms and a parking garage of approximately 1,000 car capacity to be operated as part of said Convention Center; and WHEREAS, the City on February 16, 1977, by published no- tice, invited expressions of interest from developers in the devel- opment and operation of commercial facilities essential for the suc- cessful -operation of the Convention Center and, pursuant to such invitation, the Developer submitted its development proposal to the C i ty; and Mc w 92-- 490 . •r WHEREAS, the Commission of the City, by Resolution No. r 78-74 adopted January 24, 1978, authorized the City Manager, to exe- cute contracts with the Developer for the development of such com- mercial facilities; and INH EREA.S, pursuant to'the authorization of the Commission of the City, the appropriate officers of the City have worked with the representatives of the Developer in the preparation of this Lease which provides for the leasing by the City to the Developer of the air rights over a portion of the area comprising the Convention Center for the construction and operation by the Developer of a hotel and other amenities, the leasing by the City to the Developer of certain spaces within the Convention Center for the purposes of the Developer and the granting by the. City, tQ the Developer of essential easements and other rights necessary for or incidental to the construction, operation and maintenance of the hotel; and IIHEREAS, the City has by ordinance authorized the financing of the cost of constructing the Convention Center and a parking ga- rage (herein called the "Parking Garage") through the issuance of its revenue bonds (hereinafter called the "Revenue Bonds"); WHEREAS, for and in consideration of the contribution and participation of the University as aforesaid, the Developer has entered into a separate letter agreement with the University dated April 10, 1978; and NO:•:, THEREFORE, in consideration of the covenants herein contained and for good and valuable consideration, the receipt and -3- w 92- 490 1' Y '•' AJZficiency of which are hereby acknowledged, the City hereby (i) leases to the Developer, and the Developer hereby rents from the City, at the rent and upon the covenants,' conditions, limitations and agreements herein contained, for the term hereinafter specified, the Air Spaces as defined herein, and (ii) grants to the Developer .and the Developer hereby accepts from the City upon the terms, conditions, limitations and agreements herein contained for the term hereof, the Easements aq_defined herein, and the parties mutually covenant and agree as follows: Section 1. DEFINITIONS. The terms defined in this Section (ex- cept as herein otherwise expressly provided or required by the con- text) shall for all purposes have the following.meanings: 1.1 "Additional Hotel Sisaces" shall mean the Air Spaces in the Convention Center defined in Section 1.2(c). 1.2 "Air Spaces" shall mean .those air spaces bounded as follows: (a) Air space for the Hotel Tower. (1) dower boundary - the horizontal plane at elevation 8116" as measured from City of Miami Datum as shown in'Eahibit "B" attached hereto and made a part hereof; (2) upper boundary the horizontal plane at the maximum elevation permitted by applicable law; (3) perimetrical boundaries - the per- imetrical boundaries shall conform to the metes and bounds deline- ated in Exhibit "A" and designated "Hotel Tower" projected vertical- ly to intersect the upper and lower boundaries; and -a- 92-- 490 113 M a ' _1 .t (b) Air Space for the Swimming Pool. lower boundary - the horizontal I plane at elevation 6.0' as measured from City of Miami Datum; (2) upper boundary - the horizontal plane at the maximum elevation permitted by applicable law; (3) perimetrical boundaries - peri- metrical boundaries shall conform to the metes and bounds delineated in Exhibit "A" and designated "Swimming Pool" projected vertically to intersect the upper and lower boundaries and projected downward to include foundations and supports; and (c) Air Spaces for the Additional Hotel Spaces. (1) lower boundaries - the unfinished upper planes of the several floor slabs designated Spaces Nos. 1 through 25, inclusive, in Exhibit "B"; (2) upper boundaries - the unfinished lower planes of the ceiling slabs above the respective lower bound- aries: (3) perimetrical boundaries - the per- imetrical boundaries shall conform to the metes and bounds as delin- eated in Exhibit "S" and designated Spaces Nos. 1 through 25, inclu- sive, projected vertically along the undecorated interior of the boundary walls to intersect with the upper and lower boundaries. 1.3 "Conference Center" shall mean that portion of the Convention Center which is to be leased by the City to the University. -5- 92- 490 N 1. 4 *nsultant" shall mean a independent firm o consulting, parking, structural or traffic engineers, or feasibilit or manavement consultants, or architects, of favorable nationa repute for skill and experience in performing and carrying out th particular duties under the provisions of this Lease designated b the City or designated pursuant to the Trust Indenture securing th City's Revenue Bonds, as the case may be, in consultation with th Developer. 1.5 "Consbtuct•ion Period" shall mean the time per iod(s) during which the Developer's 'Improvements are either bein constructed, or repaired and restored, prior to the date on whir the Hotel First Opens for Business. 1.6 "Consumer Price Index" shall mean the Consume Price Index for All Urban Consumers - All Items - for Miami, Florid published by the United State$ Department of Labor, or such othe corparable index which may be in effect from time to time if sai Index is unavailable. 1.7 "Convention Center" shall mean the entire four story structure to be constructed by the City on the land describe in Exhibit "A" appended hereto and by reference made a part hereo which includes the Convention Center space and Additional Hote Spaces, and includes the furniture, fixtures and equipment to b provided by the City or the Uniuersity in their respective spaces. 1.8 "Debt Service" shall mean, collectively, princi pal amortization, fixed interest, and Participation Interest as pro vided in Developer's First Mortgage. -6- s f y I e y e e g h r a r d d f 1 e QA A 1.9 "Demised Premises" shall mean the Air Spaces and the Easements. 1.10 "Developer's First Mortgage" shall mean the first mortgage lien upon the Developer's interest in this Lease given to secure construction financing, or given to secure permanent fina-nc.- ing, as the case may be. 1.11 "Developer's First Mortgagee" shall mean the holder of the Developer's 'First Mortgage,' or its successors or assigns, and any Person acquiring the leasehold interest of the Developer in the Demised Premises and any successor or assign of any such Person: (i) under any judicial sale made under such Mortgage or as the result of any action or remedy provided therein, or (ii) by foreclosure proceeding or action in lieu.thereof '(including without limitation, a deed in lieu of foreclosure to a nominee of such mort- gagee) in connection with such Mortgage. 1.12 "Developer's Improvements" shall mean the Hotel. 1.13 "Easements" shall mean (a) the' right to use in common with the City and all others of all public sidewalks, streets, avenues, curbs and roadways fronting on and abutting the Project; (b) the right of ingress, egress and passageway in, over, through and, across those portions of the Excepted Prem- i-fes and Demised Premises and the Parking Garage which shall be necessary or desirable for entrance, exit and passageway within, to or from the Hotel and the Parking Garage and the Excepted Premises -7- 92- 490 `r�r -the use in com h of the City and `the b respec- tive their r_spec- tive successors, assigns, patrons, tenants, invitees and all other persons having business with any of them; (c) the right of support and right of user in respect of, and to maintain within the Excepted Premises, all essen- tial structural support elements, all pump systems for flood water control, all fire stand pipes, public fire exits and fire control systems; all gas, electric, telephone and water utility lines, pipes, and conduits; all elevator apparatus and elevator banks; all gas, electric, and water meters and meter rooms; all heating, venti- lating and air-conditioning systems and machinery pertaining to and needed to support and operate the Hotel as a first-class hotel; and (d) the mutual right ,of access for the use, in common, of the City and the Developer and the right to inspect, maintain, repair, renew and replace such columns, supports, founda- tions, drains, utility lines, elevator shafts and pits and other improvements and facilities either in the Demised or Excepted Premises or the Parking Garage. 1.14 "Excepted Premises" shall mean the land described in Exhibit "A" and all improvements thereon, as shown in Exhibit "B" (including the Conference Center) not expressly included in the De- mised Premixes together with all furniture, fixtures and equipment to be provided by the City. 1.15 "First Opens for Business" shall mean that date on whch the Developer first receives income for use of the Hotel by the public. -8- 1.16 "Hotel" shall mean the Hotel Tower and" Swimming Pool. to to constructed entirely by the Developer, and the Additional Hotel Spaces which are to be completed by the Developer. The term "Hotel" means a first-class hotel consisting of not less than 627 rooms and includes furniture, fixtures and equipment to be provided by the Developer in the premises constructed or completed by the Developer. 1.17 "HoteL:.Tower" shall mean the structure to be constructed by the Developer in the Air Space described in Section 1.2(a) upon the platform to be provider] by the City at elevation 8116" as measured from the City of Miami Datum. 1.18 "Swimming Pool" shall mean the swimming pool to be constructed by the Developer in that Air Space defined in Section 1.2(b). ` 1.19 "Lease" shall mean this Lease and Agreement for De•:elopment betzoeen the City and the Developer dated as of the 13th day of September, 1979 including any amendments hereafter made. 1.20 "Parkin.g Garage" shall mean the parking facili- ties for not fewer than 1,450 automobiles to be constructed by the Cit7 on the land described in Exhibit "A-l" and includes furni- ture, fixtures and equipment to be provided by the City and an en- closed pedestrian walkway between the Convention Center and Parking Ga race . 1.21 "Participation Interest" shall mean that sum whir:. 'na.r be payable to the Developer's First mortgagee in accor- dance with the Developer's First Mortgaae equal to 1 and 1/2 percent -9- 92- 490 i .(1-.1/21) of cross ival room sales (exclusi a of commissions and discounts paid to travel agents, groups, the University - of Miami, and the Cit:,); but the Participation Interest when added to the fixed rate of interest payable under such mortgage shall not eNceed the maximun rate of interest permitted by law. 1.22 "Premises" shall mean the Demised Premises and the Excepted Premises. 1.23 "Project" shall mean the Convention Center, the Parkinc Garage and connecting walkway, including machinery, equip- ment, fixtures and furniture, improved and unimproved land, land- scaping and appurtenances, and the Hotel. 1.24 "Public Charges" shall mean any taxes, assess- ments, fees, water and sewer rates, or other charges imposed by pub- lic authority which if not paid will be a•charge, claim or lien upon or against the Excepted Premises, the Parking Garage, the Demised Premises or the Hotel or any part thereof or upon or against the revenues or rent due hereunder. 1.25 "Revenue Bonds" shall mean the Revenue Bonds of the City to be issued to finance the Convention Center and the Parking Garage. 1.26 "University Agreement" shall mean that certain agreement between the City and the University dated April 1, 1977. 1.27 "Work" shall mean the reconstruction, repair or restoration of the Hotel as used in Section 14.2(c). 1.28 "Person" shall have the meaning given in Section 1.01(3) Florida Statutes, 1979. -10- 92- 490 �-. Section 2. LEASE TERM. 2.1 Initial Term. The initial term (herein called "Initial Term") of this Lease shall commence on the date hereof and end forty-five (45) years ater the date on which the Hotel First Opens for Business. The parties will execute in recordable form a memorandum evidencing the date on which the hotel First Opens for Business within thirty (30) days after such date. 2.2 Renewal Term. This Lease may be renewed, upon the same terms and conditions as contained herein, for an additional forty-five (45) years after the expiration of the Initial Term here- of, provided the Developer is not then in default, upon written no- tice by the Developer delivered to the City.at-least one hundred eighty (180) days prior to expiration of the Initial Term and sub- ject to the following conditions: (a) In consideration of such renewal of this Lease, the Developer (in addition to its maintenance, repair and replacement obligation under Section 15 hereof) agrees to extensive- ly refurbish, update, and modernize the fixtures, furnishing and equipment of the Hotel within one (1) year after the commencement of such renewal term or show evidence that the Developer has done same before the commencement of such renewal term. (b) The rent during the Renewal Term shall be as agreed upon by the parties. 2.3 Lease Term. The initial Term and Renewal Term are herein collectively referred to as the "Lease Tern;". -11- 92- 490 • r r Section 3. RENT. Rent for and during the Initial Term shall consist of Base Rent and Additional Rent payable as herein provided. 3.1 Base Rent. Base Rent shall be Two Million Nine Hundred Thousand and no/100 Dollars ($2,900,000.00) being equal to the aver- age present value of all of the rights of the Developer under this Lease (exclu!;i`ve of the Renewal Term set out in Section 2.2) which: has been determined by appraisal of two independent, fully qualified appraisers as of April 20, 1978. The Developer shall pay to the City Base Rent in advance on .the date the Hotel First Opens for Business. On or before the date the City sells its Revenue Bonds the Developer shall submit to the City evidence satisfactory to the City showing that the payment of the Base Rent by the Developer to the City in the amount of Two Million Nine Hundred Thousand and no/100 Dollars ($2,900,000.00) on the date specified in this Lease is assured by a letter of credit then is- sued, or acccuate collateral then deposited, acceptable in form and substance: to the City and assuring that the full amount necessary for the payment of the Base Rent in full will be available to the Developer when the Hotel First Opens for Business. 3.2 Additional Rent. (a) In addition to the Base Rent, the Developer shall pad to the City Additional Rent semi-annually bases upon an- nual Grozs Sales computed as follows: -1�- 92- 490 i. Dollar Volume of a Percentage of Gross Sales (Annual) Gross Sales $ 0-$20,000,000 0% _20000-,001-22,000,000 1.6% 3sZ..�vv 22,0001001-24,000,000 1.9% 24,000,001-26,000,000 2.2% 26,000,001-28,000,000 2.5% 28,000,001-30,000,000 2.7% 30,000,001-32,000,000 3.0% 32,000,001-34,000,000 3.2% 34,000,001-36,000,000 3.3% 36,000,001-38,000,000 3.4% 38,0001001-40,000,000 3.5% 40,000,001-41;666,667 3.6% If Gross Sales exceed Forty -One Million Six Hundred Sixty -Six Thousand Six Hundred Sixty -Seven and no/100 Dollars ($41,666,667.00) the Developer shall pay to the City Additional Rent in the amount of One Million Five Hundred Thousand and no/100 Dol- lars ($1,500,000.00) subject to upward adjustment for equivalent..in- creases in the Consumer Price Index, using the I.ndex for the first year in which Gross Sales exceed Forty -One Million Six Hundred Sixty -Six Thousand Six Hundred Sixty -Seven and no/100 Dollars ($41,666,667.00) as a base year. "Gross Sales" shall mean, on an annual basis, the sum of revenue therefrom; and (1) gross room rentals, charges or other (2) gross food and beverages sales or ser- vices in the Hotel or the Convention Center. Excluded From Gross Sales shall be commissions paid on room rentals at a rate normally paid in the operation of a first-class hotel. -13- 92- 490 f , • i (b) Each semi-annual payment of Additional Rent shall be co-outed on estimates of annual Gross Sales as determined by Developer (with the final sum determined in accordance with Sec- tion 3.:). (c) Payment of Additional Rent shall be deferred to the extent that funds available to the Developer from the reve- nues of the Hotel are insufficient to pay such Additional Rent after the payment of (i) Debt --Service, (ii) all operating expenses and cash reserves required of the Developer under this Lease and Hotel management agreement, and (iii) priority return to equity capital investors, provided, that the sum of (i) and (iii) shall not exceed in the aggregate Five Thousand Three Hundred and no/100 Dollars ($5,300.00) per room per annum. That portion of the deferred Addi- tional Rent shall accrue with interest equal to 1j2% above the rate paid by -the City on its Revenue Bonds. The aggregate amount of such accruals of unpaid Additional Rent shall be due and payable by the Developer to the City at the end of each third (3rd) year and at the end of the forty-fifth (45th) year after- the Hotel First Opens for Business. If there are any funds available to the Developer after payment of items (i), (ii), and (iii) above, for any calendar year and there exists unpaid accrued Additional Rent for any prior year or years, such funds available. shall be applied to the payment of said unpaid accrued'Additional Rent. (d) Should the Developer's First Mortgagee suc- ceed to the position of the Developer under this Lease, then the -14- 92- 490 123 payment of Additional Rent shall be deferred to the extent that funds available to the Mortgagee from, the revenues of the Hotel are insufficient to pay Additional Rent after payment or retention of (i) the Debt Service which would have been due on the Developer's First Mortgage, (ii) all operating expenses and cash reserves required under this .Lease and the Hotel management agreement; and (iii) any other amounts -secured by the Developer's First Mortgage inc:udino, but not limited to, afrearages in Debt Service and sums advanced by said Mortgagee in payment of obligations of the Develop- er under said Mortgage or this Lease. At the end of each year if there are funds available to such Mortgagee as determined in the manner described above, and there exists unpaid Additional Rent which accrued after the Developer's First Mortgagee came into pos- session of the Demised Premises, such funds available shall be ap- plied first to the payment of such accrued Additional Rent until paid in full, then to the payment of Additional Rent currently due. The provisions of this subsection are separate and in addition to those of subsection 11.4(h)(3). 3.3 Rent Days. Additional Rent shall be payable in ar- rears on each date which is thirty (30) days prior to each semi-annual interest payment date of the City's Revenue Bonds, which Kent shall be applied to the semi-annual period immediately pre- ceding payment (subject to proration for the initial and final rent periodz). The dates thus fixed shall continue as Rent Days after retirement of the City's Revenue Bonds issued in connection with the _ 1 Project. -ls- 92- 490 3.4 Payment of Additional Rent. Within ninety (90) days after,the close of each calendar year, the Developer shall sub- mit to the City a detailed statement for the preceding calendar year showing: (i) Gross Sales, (ii) Debt Service, (iii) Operating ex- penses and cash reserves required under this Lease and the Hotel management agreement, (iv) Priority return to equity capital inves- tors, (v) Additional Rent and payments made thereon and deferred Additional Rent, if any, together with a certificate of the Developer's independent certified public accountant, addressed to the City, stating that he is familiar with the provisions of this Lease, whether his examination has disclosed any default in any pav- ments recuired to be made hereunder and attesting to the accuracy of the report and conformity with the requirements of Section 3.7. If the annual accounting statement of the Developer shall disclose that Additional Rent is payable, the additional amount shall be paid to the City immediately after such disclosure, and if Additional. Rent shall have been overpaid, the City shall credit such overpayment to the rental payments next due thereafter until such credit is ex- hausted. 3.5 Right to Audit. The City, or its designated repre- sentatives, shall have the right to inspect any records and books of account of the Developer or those claiming under the Developer re- lating to the Hotel, and any other materials relating thereto, and to make copies thereof or extracts therefrom, and to cause such books, records and ;materials to be audited by independent certified -lo- I 92-- 499 ' 45 DdOTic accountants selected by the City as often as may be reasona- bly requested. Such inspection and audit shall be at the City's expense unless such inspection or audit shall disclose the existence of a variance of more than five percent (S$) from the Additional Rent for such period computed in connection with the annual account- ing statement furnished to the City by the Developer,'in which case such inspection and examination shall be at the Developer's expense, and the cost thereof shp�l be immediately paid to the City by the Developer. 3.6 Offset. Rent and all other sums payable by Developer hereunder shall be.paid without notice, demand, counter- claim, setoff, deduction or defense and .without abatement, suspen- sion, deferment, diminution or reduction except if the Developer or Developer's First Mortgagee shall incur any cost or pay any sum any- where in this Lease prescribed to be obligations' of the City, then the Developer or Developer's First Mortgagee shall have a claim against the City which claim shall bear interest thereon at the rate at which: funds are available to the Developer from commercial sour- ces, and if not sooner paid, may be offset against accrued Addition- al Rent then due the City, if any, and any sum in excess thereof offset against Additional Rent next coming due on or after one (1) year following the date on which the claim arose. 11 3.7 Books of Account. The Developer shall maintain all books of account for the Hotel in accordance with the uniform system of accounts for hotels adopted by the American hotel Association. -17- 1 Zb 92- 490 ' Sect ion a . I ��CI�E�IENTAL C05TS . 4.1 In addition to rent, the Developer shall pay to the Cite., One &%:i11ion Two Hundred Thousand and no/100 Dollars ($1,200,000.00), representing the costs to the City of constructing structural and support elements, including mechanical, electrical and pluirbina elements in the Convention Center in sufficient size and eapacit_: to serve the Demised Premises and the Hotel which in- cremental costs would not_ be incurred by the City but for the Hotel ("Incremental Costs"). Said One Million Two Hundred Thousand and no/100 Dollars (51,200,000.00) shall be paid by, the Developer to the City in five (5) equal annual installments of Two Hundred Forty Thousand and no/100 Dollars ($240,000.00) each. The first install.-ent shall be due and payable fifteen .(15) months following the -date on which the Hotel First Opens for Business and annually thereafter until paid in full. Installments made timely shall be without interest. 4.2 The provisions of Section 4.1 shall -not apply to the Developer's First Mortgagee if such Mortgagee shall succeed to the position of the Developer. Any sums coming due under Section 4.1 after the Developer's First Mortgagee shall have come into pos- session of the Demised Premises shall be waived as to such Mort- gagee. The provisions of this subsection are separate and in addi- tion to tho n. of subsection 11.4 (h) (3) . s XN Cn• Section 5. CONSTRUCTION OF THE HOTEL. 5.1 Developer's Obligation to Construct the Hotel. (a) The Developer agrees for -itself, its succes- sors and assigns, that the Developer and such successors and as- signs, shall promptly begin and diligently prosecute construction of the Hotel to substantial completion. (b) Subject to the terms and conditions herein contained, the Developer' •shall construct the Hotel fully equipped and stocked, adequately capitalized, and ready to commence business within the tire limits provided herein. The hotel shall be con- structed substantially in accordance with the proposal attached hereto as Exhibit "C". The Developer recognizes that the availabil- ity of the Hotel at the Convention Center is important to the suc- << cessful operation of the Convention Center. The Hotel shall be deemed "fully equipped and stocked", and "ready to commence busi- ness", if it conforms to the applicable standards of the American Hotel Association. As to whether the Developer has been "adequately capitalized", such matter shall be determined to the satisfaction of the City prior to the time that the Developer commences construction of the Hotel, which will include demonstrat- ing to the City that the Developer has available adequate equity funds required over and above the amount of its construction and permanent loan financing. (c) The Developer must substantially complete the Hotel on or before February 1, 1982 including installation of furniture, fixtures and equipment in the Hotel. -19- 02-- 490 • 5Su _ssion of Design Develoent Plans. Developer has sub^itted Design Development Plans to the City for its review and approval as used herein. Design Development Plans include the following: (a) Site Plans to one -eighth (.1/8) inch scale showing ingress and egress, traffic patterns, project limits, pro- posed utility easements and rights -of -way and principal critical site grade elevations ateproperty lines; • (b) Floor plans for each non -typical floor of the Hotel to one -eighth (1/8) inch scale; (c) Floor plans for each typical floor of the Hotel to one-eiahth (1/8) •inch scale; (d) Plans for typical hotel rooms to one-half (1/2) inc:; scale; r (e) Vertical sections plans for principal por- tions of the Hotel which interface the Convention Center showing floor elevations and alignment at principal connections to one- eichth (1/8) inch scale; (f) Interface diagrams and other appropriate plans showing re'.ationships and functions of the Hotel with other elementz of the Convention Center; (g) Elevation and renderings of the Hotel; (h) Specifications covering materials, methods and fini.hes; (1) Construction cost estimates. -20- 92- 490 i z9 5 . 3 Approval of Design Development Plans by the Citv. The City reviewed the plans and determined them substantially in ac- cordance with the requirements hereof. The City approved in writing the plans submitted by the Developer. 5.4 Submission of Final Development Plans. (a) Within forty-five (45) days after the vali- dation of the City's Revenue Bonds, the Developer will submit to the City final plans and specifications for the Hotel (the "Final Devel- opment Plans"). The Final Development Plans shall include all of the information set forth in the Design Development Plans. (b) If this Lease shall terminate before con- struction and completion of the Hotel due to the default of the Developer, all plans, reports, estimates and models which have been r made in connection with the Hotel and which are owned by the Devel- oper, shall become the property of the City, and the Developer shall deliver, or cause to be delivered, to the City all such plans, re- ports, models and estimates. Upon completion of the Hotel, the Developer shall deliver as -built plans and specifications to the City in such quantity as the City may reasonably request. (c) It shall be the responsibility of the the Developer and their architects to design the Hotel and. the Con- vention Center so that contiguous levels properly mesh and to coor- dinate the construction thereof with respect to traffic and other matters. The Developer and its architects and contractors and the City's architects and construction manager shall cooperate to plan -21- 52- 90 130 Amok construction, material storage areas, staging and erection and to avoid interference among contractors. 5.5 Approval of Final Development Plans. Upon receipt of the Final Development Plans, the City shall review the plans for adherence to the Design Development Plans previously approved by the City. The City shall approve the plans submitted or advise the Developer in writing that such plans do not comply herewith within thirty (30) days after receipt of such plans. If the Final Develop- ment Plans submitted substantially comply with the Design Develop- ment Plans, the City shall have an affirmative obligation to certify its approval in writing to the Developer. 5.6 Scone of Review by City. The review of plans by the City shall be solely for the purpose of•determining that the improvements represented thereby in broad terms of size, design and quality meet the requirements hereof. The City shall not be re- quired to review such plans in detail, and the City shall not be re- sponsible in any way for any error or omission therein or failure of such. plan-- to comply with any building regulation or for any incon- sistency or incompatibility between such plans and the plans for the Convention Center. 5.7 Substantive Chanqes in Plans. If the Developer desires to make any substantive changes in the Final Development z Plans approved by the City, the Developer shall submit the proposed c::anccs to the City for its approval. The City shall approve the pro_roned chances or advise the Developer in writing that such -22- 92- 490 chan es do not comply herewith within thirty g p y y (30) days after receipt of such proposal. If the proposed changes conform to the requirements hereof, the City shall have an affirmative obligation to certify its approval in writing to the Developer. 5.8 Contract for, Construction. The Developer shall submit to the City a fully•executed contract for construction of the Hotel prior to delivery of the City's Revenue Bonds. The contract for construction shall .contain a provision. in form and substance satisfactory to the City which shall .declare the City a third -party beneficiary of said contract and which shall provide for notice of default urcer such contract to the City and the right of the City, at its option, to cure such default without penalty to the City or stoppace of the work. 5.9 Conditions Precedent to Commencement of Construc- tion. As conditions precedent to the Developer's right to commence construction, the Developer shall have: (a) secured the approval of the City for the Final Development Plans as herein provided; (h) submitted evidence to the City of the avail- - ,. ability of the equity capital and mortgage financing herein required; (c) submitted to the City the proposed contract for construction herein required; and (d) submitted to the City at least thirty (30) dais prior to commencement of construction an executed management contract with a nationally recognized hotel management firm for the operation and management of the Hotel. -23- 92-- 490 All of the foregoing items (i.e. (a) through (d) , inclu- sive) shall have been accomplished not later than the date on which the -City delivers its Revenue Bonds. 5.10 Access to Premises. prior to the commencement of the construction, the City shall permit representatives of the Developer to have access to any part of the Premises at all reasona- ble times for the purpose of obtaining data and making various tests concerning the Demised Premises necessary to carry out the terms of this Lease. 5.11 Permits and Licenses. The City agrees, in its capacity as fee owner of the Premises, to assist the Developer in securing all necessary licenses, permits and governmental authoriza- tions in connection with the purposes herein specified. 5.12 Progress Reports. Subsequent to commencement of the Lease Term and until construction of the Hotel shall have been completed, the Developer shall make monthly reports, in such detail as may reasonably be requested by City, as to the actual progress of the Developer with respect to such construction. 5.13 Payment of Contractors and Suppliers. (a) The Developer shall make, or cause to be made, prompt payment of all monies due and legally owing to all per- sons doing any work or furnishing any materials, fuel, machinery or supplies to the Developer or any of its contractors or subcontrac- tors in connection with the Demised Premises and an- buildinas, structur^s or, improvements thereon. The Developer shall requive -24- 92- 490 -33 'lien waivers fron contractors and subcontractors in order to comply with the mechanics' lien laws of the State of Florida or copy of title insurance endorsement insuring over such claims. (b) The City shall make, or cause to be made, prompt payment of all monies due and legally owing to all persons doing any work or furnishing any materials, fuel,. machinery or supplies to the City or any of its contractors or subcontractors in connection with the Excepted Premises and any buildings, structures or improvements thereon. The City shall require lien waivers from contractors and subcontractors in order to comply with the mechan- ics' lien laws of the State of Florida or copy of title insurance endorsement insuring over such claims. 5.14 Mechanics' and Materialmen's Liens. (a) If, because of any act or omission of the Developer, or any contractor or subcontractor of• the Developer, any mechanics' or materialmen's lien or other lien for labor, material, fuel, machinery or supplies shall be filed against the Demised Premises, or any building, structure or Improvement thereon, or against the Excepted Premises, the Developer, shall, within thirty (30) days of filing of such lien, cause the same to be cancelled and dizcharged of record, bonded off, or insured against by title in- surance company acceptable to City. (b) If, because of any act or omission of the City, or anC contractor or subcontractor of the City, any mechanics' or materialmen's lien or other lien for labor, material, fuel, -25- g9- It90 )31 machinery or supplies shall be filed against the Excepted Premises, or any building, structure or improvement thereon, or against the Demised Premises, the City, will within thirty (30) days of filing of such lien, cause the same to be cancelled and dis- charged of record, handed off or satisfied by title opinion accepta- ble to the Developer. Section 6. CONSTRUCTION OF THE CONVENTION CENTER. 6.1 City's Obligation to Construct. The City shall construct at its sole cost and expense (except as set forth in Sec- tion 4 and Section 8.1) and lien free, a fully -equipped Convention Center, including support elements for the Hotel substantially in accordance with the plans prepared by Ferendino,. Grafton, Spillis and -Candela, as identified in Exhibit "D" appended hereto, and by reference made a part hereof. If the City desires to make any sub- stantive changes in the Convention Center as set forth in Exhibit "D", the City shall submit the proposed changes to the Developer for it3 determination as to whether such change is in conformity with this Lease or, if not in conformity therewith, is otherwise accepta- ble to the Developer. If the proposed changes conform to the re- quiremcnts hereof, the Developer shall notify the City in writing of its determination. 6.2 Additional Improvements by the Citv. The City shall, without expense_ to the Developer or public assessment against the Oenized Premises, subject to Section 8.1, and without impeding -26- 9ti� 490 l3� •tbe•progress of the Construction of the Hotel by the Developer, provide for the following: (a) Paving and improving in accordance with the usual technical specifications and standards of the City of such streets, including the installation of gutters, curbs, and catch basins; street lighting, sidewalks; and such public rights -of -way as are to be provided pursuant to the development plan for the Conven- tion Center. r: (b) Installing and relocating such sewers, drains, water and gas distribution lines, and electric, telephone, and telegraph installations as are to be installed or relocated pursuant to the development plan for the Convention Center. 6.3 Time for Performance by City._ Time is of the es- sence in performance by the City and the 'Developer of their respec- tive obligations to construct. The Developer's -performance is de- pendent upon performance by the City, and the City therefore cove- nants with the Developer to do and perform certain things within the following prescribed time limits: (a) The Design Development Plans and Specifica- tions for the improvements to be constructed by the City were com- plated on or before October 20, 1978, and were reviewed and approved in writing by the Developer, on or before November 20, 1978. (b) The City must commence construction of the Convention Center, and complete the same to the point that posses- sion of so much thereof as may be necessary in the premises can be -27- 92- 490 tend Bred to the Developer on or before June 19, 1980, accompanied by certifications by the City and by its architect and engineers to the _ Developer confirming that the Convention Center is in such state of completion that the Developer may commence construction of the Hotel, and that the structural and support elements of the Conven- tion Center have been completed in substantial compliance with the plans and specifications. (c) Thereafter, ter, the City must substantially com- _- plete the Convention Center on or before February 1, 1982, including the central plant for the production of hot and chilled water, the = Parking Garage, public park and river walk, and the installation of all furniture, fixtures and equipment in ,the Excepted Premises and e : Parking Garace. � 6.4 Commencement of Construction. The City shall noti- fy the Developer in writing of the date the Developer may commence construction of the Hotel, which notification shall not be later than thirty (30) days prior to the date specified in Section 6.3(b). The Developer shall commence construction within forty-five (45) days after issuance of the City's Revenue Bonds. - Section 7. UTILITY. SEI?VICE. 7.1 Hot and Chilled Water. The City represents to the Developer that the City will (subject to Section 8.1) construct as �z part of the Convention Center a plant or plants to produce hot and - _r chi lltid water suCfieient for the needs of the Convention Center and 1 -28- 92- 490 •• 137 the Hotel. The City has offered and hereby agrees to furnish and sell to the Developer for use in the Hotel the amounts of hot and /r chilled water as are required by the Developer in accordance with the terms and conditions hereinafter set forth. 7.2 Location and 'Quantity of Utilitv Service. As soon as possible in the design of the Hotel, the Developer- shall furnish to the City estimates of the quantities and specifications of hot and chilled water required in the Demised Premises and the location � 2 at the boundary of the Demised Premises at which the Developer wishes to receive the hot and chilled water to be provided by the City. The temperatures and pressures of the same and the point of reception and the size piping in which the same shall be received will be specified by the City, and shall be satisfactory to the Developer. The Developer shall provide to the City the approximate quantities estimated as accurately as possible -of hot and chilled water which it desires the City to provide each year, showing for each such commodity the estimated requirements for each month of the year. 7.3 Agreement to Purchase and Sale. The City hereby agrees to Furnish and sell to the Developer and the Developer agrees to purchase the quantities of hot and chilled water in monthly quan- tities in accordance with the Developer's needs of monthly usage and at the temperatures and pressures at the point of reception deter- mined purauant to Section 7.2, and the. Developev_ agree9.,to. pay the City therefor as set forth in- Sectiott�-��;4' -29- 92--9C� r 7.4 Cost of Utility Services. The Developer shall pay r to the City on a monthly basis the cost of hot and chilled water delivered to the Demised Premises based upon meters at the point of reception. Such cost shall be the direct unit cost of producing the same. Cost of producing hot !and chilled water shall be determined in accordance with the Uniform System of Accounts -for Municipal Utilities, including a reserve for depreciation equal to five per- cent (51j) per annum of.the City's capital cost of the hot and chilled water plant machinery and equipment. The City shall furnish Developer an analysis of unit costs including capital costs and depreciation within ninety (90) days after the close of each calen- dar year in which the Hotel first opens •for business. Further, to the a%tent practical and feasible, the various portions of the Devised Premises and Excepted Premises shall be separately metered or check metered so that there can be easily determined the respec- tive obligations of the parties for the hot and chilled water, as well as for all other utility services wherever such provisions may be applicable. 7.5 Interruption in Utility Service. The City shall not be responsibile or liable in any way whatsoever for the quality, quantitj, impairment, interruption, stoppage, or other interference with service involving electric, water, gas, sewerage, telephone or ant other service, unless such occurrence is due to the willful acts or omit --ions of the City (except in the exercise of the police power) o: to' its negligent acts or omissions. -30- 92 - 490 139 7.6 Utilities. In addition to the provisions of this Section 7, each of the parties shall pay the cost of utility ser- vices to its respective premises or otherwise used by the respective party, including but not limited to electric, water, gas, sewerage, telephone, garbage and trash collection. To the extent that such utility services are available to the City for transfer to others, the City will make such utility services available to the Developer upon terms mutually agreeable if such services are not otherwise available to the Developer; providing nothing herein shall affect the City's obligation to furnish hot and chilled water pursuant to Section 7.1 Section 8. CONVENTION CENTER FACILITIES 8.1 Obligations of the City. The agreements and cove- nants of the City contained in this Lease shall be binding upon the City and the cost of performing the City's undertakings shall be paid from proceeds of the Revenue Bonds, revenues of the Convention Center and Parking Garage, and from such funds of the City as may be lawfully available therefor exclusive of ad valorem property tax revenues not expressly approved for use hereunder in accordance with applicable law. 8.2 Pre -Opening. It is recognized that substantial additional pre -opening expenses will be required and the Developer agrees to make available for pre -opening, pre-proa:otion and pre - selling expenses the sum of Two Hundred Fifty Thousand and no/100 Dollars ($250,000.00) as its share of such expense in promoting the -31- 92- 490 i qO �.' Ho-tel and Convention Center. A mutually acceptable budget therefor shall -be prepared by the Developer, its hotel manager, and the City. The City shall be required to 'fund such budget in excess of Two Flund.ed Fifty Thousand and no/100 Dollars ($250,000.00) to a maximum budget of not less than a total of Five Hundred Thousand and no/100 Dollars ($500,000.00) . It is understood that the budget for pre -opening expense shall be Five, Hundred Thousand and no/100 Dollars ($500,000.00) unless otherwise approved by The Commission of The City of Miami. 8.3 Use of Facilities. (a) All food and beverage service in the Conven- tion Center and Conference Center shall be under a•single concession hereby granted the Developer for the Lease Term. Developer's food, beverage and service charges shall not exceed those of other first- class hotels in the Miami area for comparable food, beverage and service. (b) The Developer. the City, and the University shall cooperate to develop a booking procedure for the ballroom, bancuet, exhibition and meeting rooms and other litre facilities which will permit the City, the University, and the Developer to schedule the use of such facilities without conflict and result in maximizing the use of such facilities consistent with the respective objectives of the parties. The parties contemplate that full use of faeiliti�!s will necessitate hiring by the City or the University of -32- ' the Developer's facilities as well as hiring by the Developer or the Universitv of the City's facilities. The rates and charges for use of such facilities shall be the same as those charged third parties and the City, the University and the Developer shall settle accounts among themselves with respect to such rates and charges on the first day of each month following such hiring or on such other date as may be mutually agreed. 8.4 Maintenance of Convention Center. The City at its expense shall continuously throughout -the term of this Lease operate and maintain the Convention Center and Parking Garage in good and clean order and condition as a first-class convention and conference center comparable in quality to other first-class convention and conference centers throughout the United States *and will promptly make all necessary or appropriate repairs, replacements and renewals thereof, whether interior or exterior, structural or non-structural, ordinary or extraordinary, foreseen or unforeseen. All repairs, replacements and renewals shall be equal in quality and class to the original work. Such obligation shall include, but shall not be limited to, bearing the cost of the Convention Center sales force and an adequate staff to service the Convention Center and Parking Garage, security for the Convention Center and Parking Garage and their patrons adev_uate to operate the Project as a first-class facility, and reserves for replacements, which reserves shall be sufficient to accomplish the City's obligations under this Section.. If the City fails properly to operate or maintain the Convention -33- �Nv 92- 49© 'Ci,nter and Par'e-ina Garage, as aforesaid, in the determination of the Consultant exercising reasonable judgment in applying the standards set. forth in this Section, or fails to make payment therefor, then, the Developer shall have the right either to perform such operation, maintenance, repair or replacement or to pay for the same and to the extent that the Developer shall perform or pay for -the same, the Developer shall he entitled to an offset against rents due the City as set forth in Section 3.6. An escrow reserve shall be funded in cash by the City each year of not less than One Hundred Thousand and nol100 Dollars ($100,000.00) per annum, under an escrow agreement and with an escrow agent acceptable to the Developer, and the bal- ance on hand from time to time may be invested in interest bearing_ investments authorized under applicable ,law, .with interest earned theteor, to inure to the benefit of the City; provided that so long as any Revenue Bonds are outstanding the establishment and maintenance of reserves for replacement under the Trust Indenture with the Trustee shall be acceptable to the Developer for the purposes of this Section. 8.5 Intentionally Omitted. 8.6 Manaqement of Convention Center. The Excepted Premi--es, (excluding the Conference Center) shall during the term be placed under a management agreement with a professional management firm, having at least five (5) years of experience in management of convention centers, or civic facilities comparable to the Convention Center. In choosing said management firm, the City shall consult -3a- 92- 490 .. / y3 i ' r r, <' •w;th the Developer to insure that the Convention Center, (excluding the Conference Center) will be maintained and operated in a first- e- -'` class manner and that the operations of the Convention Center and _+ the Hotel will be properly coordinated although in making provisions for use and availability of the Excepted Premises the City will be given priority as to availability for conventions and 'other affairs, and in compliance with any of the City's obligations to the Univer- sity. The Conference Center shall be placed under a management agreement with the same professional management firm with regard to the performance of custodial and maintenance functions only subject to the understanding that if the quality or cost of custodial and maintenance service is not satisfactory to the University, the University shall have the right to provide its own•such.services. 8.7 Coordination of maintenance and Repairs. The City and Developer expressly recognize that in the fulfillment of their ` respective obligations to operate, maintain and repair the Convention Center and the Hotel, certain functions and responsibili- ties will overlap by virtue of the joint use of machinery and equip- ment. Accordingly, it is understood that a detailed agreement of operation, maintenance and repair responsibility shall be entered - into on -or before February 1, 1982, which agreement shall provide . for the City's making the determination of disputed areas of respon- sibility, with the Developer retaining the right to contest such de- termination and to seek reimbursement from the City for the cost of performina disputed work. The existence of a dispute between the Citl and the Developer over operation, maintenance or repair respon- sibility shall not relieve either part7 of performing the same in � -35- _ N 92- 490 k. aLcordancc •.+ith thT determination made by the City until and unless r changed judicially or by further agreement of the parties. Section 9. PARKING. 9.1 ConstrUction of Parking Garage. In connection with construction of the Convention Center, 'the City represents to the Developer that the City shall (subject to Section 8.1) construct parking facilities for not fewer than 1,450 automobiles connected to the Convention. Center by means of an enclosed pedestrian walkway. 9.2 Use of the Parking Garage. (a) The Developer or its Hotel manager shall have priority to reserve each day up to 24.9% of all the parking spaces in the Parking Garage, for use during such day by guests of the -Hotel, by delivering a written request therefor to the City's garace manager on or before 6:00 a.m. of such day: (b) The Developer shall pay for parking spaces reserved pursuant to Section 9.2(a) at the lowest daily rates in ef- fect for the Parking Garage from time to time whether or not used. (c) The provisions of this Section 9.2 may be enforced by specific performance in addition to such other remedies as msy be provided by law. 9.3 Approva 1- o f Plans by Deve lope r and Time to Complete Parkins racilities. The plans and specifications for the Parking Gacale shall he completed at or about the -same time that the con- st.ruction of the Convention Center is completed by the City to the pnint that the portions thereof are turned over to the Developer for -36- 92-- 490 commencement of construction of the Hotel as established in Section 6.3,' and the City agrees to cause such Parking Garage to be con- structed so that the same is•completed in timely concert with com- pletion of construction of the Hotel, but not later than February 1, 1982. The plans and specifications for the Parking Garage shall be subject to the reasonable approval of the Developer. Parking Garage includes pedestrian passageways providing accessways to and from, or between, the Project and .s-aid. Parking Garage.. 9.4 Agreements for Parking. The City shall make no agreement with any third party with respect to the Parking Garage which will impair the City's ability to perform its obligations hereunder; and all agreements made by the City with any third party with respect to the Parking Garage shall expressly be made subject to the provisions of this Section 9. 9.5 Maintenance of Parkina Garage. The City shall operate or cause to be operated the Parking Garage in a first-class manner and kept in first-class order and that it shall be operated at all times reasonably necessary to serve the Project. Section 10. HOTEL MANAGEMENT 10.1 Contract with Hotel Manacier. Within thirty (30) days prior to the commencement of construction of the Hotel, the Developer shall submit to the City an executed management contract with a nationally recognized hotel management firm for operation and management of the Hotel. -37- 92- 499 19b 10.2 Operation of First -Class Hotel. The management contract shall obligate the hotel manager to operate the Notel as a first-class hotel in accordance with standards as defined by the American Hotel Association. The Developer hereby agrees that it shall cause the Hotel to be operated as a first-class hotel and that the management contract will make provisions for sufficient funds to be available to operate the Hotel on a first-class basis. 10.3 Commissions and Discounts. The Developer's trade commissions and discounts shall be only those types normally associ- ated with the operation of a first-class hotel and shall be main- tained at competitive price levels. 10.4 Riaht of Insuection. During the term of this Lease, the City or its authorized agent may enter upon the Demised Premises at reasonable times for the purpose of making inspections of the same. During the last six (6) months of the term hereof, the Citf or its authorized agents may bring onto the Demised Premises such persons who are interested in purchasing or leasing the same as the City may invite for the purpose of inspecting the Demised Premises. Section 11. EOUITY INVESTMENT CAPITAL AND MORTGAGE FINANCING. 11.1 Sufficient Funds to Construct Improvements. It shall be the sole responsibiliiwty of the Developer to secure suffi- ci,unt equity capital and mortgage financing, in any combination th�_reof, to construct the Hotel in such a manner as to meet its obligation under Section 5.1. -38- or • 11.2 Developer to Furnish Name and Address of Mort- aav_e_. The Developer shall promptly furnish the City with the name and address of the holder of all mortgages on the Demised Premises. 11.3 Developer to Notify City of Other Encumbrances. The Developer shall also notify the City promptly of any other lien or encumbrance which has been created on or attached to the Demised Premises whether by act of the Developer or otherwise. 11.4 Rights and Duties of Mortgagee. The City hereby agrees to the provisions set forth below. (a) Notice of the Developer's Default. After completion of the Hotel, if. the Developer shall commit any act or fail to act, and such action or failure of action shall be declared a default by any mortgagee,, the mortgagee shall use its best efforts to give written notice of such default to' the City setting forth the specific details of the default, the description of the instrument and the particular provision thereof under which the default arises and the City shall have thirty (30) days after receipt of such no- tice to cure the default, if it shall elect to do so. If the City shall elect to cure the Developer's default as herein provided, the Developer shall reimburse the City for the cost thereof forthwith with interest thereon at the legal rate. (b) The Mortgagee's Rights Prior to Completion of Hotel. If, prior to completion of the Hotel, the Developer's (: First *tortgagee shall acquire title to the leasehold estate in the -39- ti I Demised ?remises, en in such event, the Nurtgagee, or the Mort- gagee's no;ir.ee, may complete the construction of the Hotel in ac- cordance with this Lease, by a date which shall be agreed to in writing by the Mortgagee and the City, and which date shall not be earlier than the date specified for completion of the Hotel by the Developer as extended by a period equal to the sum of .(i) the number of days as may be required by the Mortgagee to obtain, based on good faith effort to diligently do so, (either by foreclosure or action in lieu of foreclosure) title to the leasehold estate in the Demised Premises and possession of the Demised Premises, and (ii) the number of days thereafter until the Mortgagee notifies the City of its election to complete the construction as set forth in the next sen- tence. If the Mortgagee so elects to complete the Hotel, it shall so notify the City in writing of its intention to do so within two hundred seventy (270) days from the date it shall have acquired both possession of the Demised Premises and title to the leasehold estate in the Demised Premises, and shall by instrument in writing, agree for itself and its successors and assigns and expressly for the benefit of the City, subject to Section 11.4(h)(3), to assume all of the obligations of the Developer and to be bound by all of the pro- vision. of this Lease. (c) Right of City to Complete. If any default described in Section 11.4(a) shall occur at any time prior to completion of the Hotel and Developer's First Mortgagee fails to -40- 92- 490 yg F 'make'the election st, out in Section 11.4(b)� ithin the time pro- vided, the City may take such action as it deems proper including, f' but not Limited to, terminating this Lease. (d) The Mortaacee's Rights After Comr)letion of Improvements. If, after the completion of the Hotel, the Develop- er's First Mortgagee shall acquire title to the leasehold estate in the Demised Premises, then, in such event, the Developer's First Mortgagee shall be bound.by the provisions of this Lease. (e) Right of Mortgagee to Transfer and Assign. The Developer's First Mortgagee may sell, convey, assign or other- wise transfer or dispose of any or all of its right, title and in- terest in and to its Mortgage, including any and all claims arising thereunder or'arising out of the mortgage.. (f) Copv of Notice of* Breach of Covenant or De- fault. Whenever the City, pursuant to this Lease., shall deliver any notice or demand to the Developer with respect to any breach of covenant or default by the Developer in the obligations of the De- veloper under this Lease, the City shall, at the same time, furnish a cony of such written notice or demand to any mortgagee at the last address of such mortgagee as shown in the records of the City. If the City, shall receive any notice of the Developer's intention to terminate this Lease, the City shall furnish a copy of such written notice to any mortgagee at th; last address of such mortgagee as shown on the records of the City and provided that no such notice of termination shall be effective unless given with the prior written consent of Developer's First .titortgagee. -41- iso 92- 490 i jam►" (g) Right of a Mortgacee to Cure a Breach of Covenant or Default by the Developer. Any mortgagee shall have the right, at its option, to cure or remedy any breach of covenant or default by the Developer under this Lease. Any such mortgagee may add the reasonable cost (together with interest thereon at the de- fault interest rate provided in the note secured by such mortgage) of curing or remedying such breach of covenant or default to the debt secured by such mortgage and to the lien of the mortgage. Such mortgagee shall have thirty (30) days (after expiration of the no- tice provided in Section 18.1(f)) to indicate its intention to cure the default and its intention to commence action with respect there- to, and shall thereafter diligently commence and pursue such action; subject in each case to the provisions of Section 11.4(b). (h) Additional Rights of a Mortgacee Unon the Developer's Default. In addition to any other rights of Developer's First Mortgagee set forth herein, and supplementing the same, the City agrees to the following: (1) In the event of the Developer's de- fault under this Lease prior to commencement or completion of the Hotel, if the Developer's First Mortgagee after having been given written notice of such default by the City, elects to proceed in accordance with Section 11.4(b), the City shall not terminate this Lease by reason of such default as long as such Mortgagee is pro- ceeding in accordance with the provisions of Section 11.4(b). -42- 92- 490 • Isl (2) In event of the Developer's default under this Lease after completion of the Hotel, if the holder of any mortgage upon the leasehold estate in the Demised Premises, after having been given written notice of such default by the City, elects to foreclose its mortgage or otherwise acquire title to the leasehold estate in the Demised Premises, and agrees'if successful to comply with the obligations of the Developer with respect to cur- ing such default, or prior to or during such action such holder of the mortgage is in good faith attempting to place itself in position to cure such default, the City shall not terminate the Lease by rea- son of such default as long as the holder of such mortgage is pursu- ing such action with due diligence. (3) Notwithstanding anything in this Lease to the contrary, the Developer's First Mortgagee shall not be obli- gated to pay any money or cure any default of the Developer by the payment of money or otherwise with respect to (i) any indemnity un- der Section 14.1(a), (ii) deferred Additional Rent or interest thereon under Section 3.2(c) or (iii) any sum under Section 4.1. 11.5 Obligations of Persons, Including a Mortgagee, AcQuirina the Leasehold Estate in the demised Premises. Any Person acquiring title to the leasehold estate of the Developer in the Demised Premises, (i) under any, judicial sale made under a mortgage permitted by this Lease or as a result of any action or remedy pro- j vided therein, (ii) by foreclosure proceeding or action in lieu -43- 1 S�- . iii �l i thereof, (includingwithout limitation, a deed in lieu of foreclo- sure to a nominee of a mortgagee) in connection with any mortgage, or (iii) as a result of any legal process or proceedings (other than eninent domain proceedings by public authority) or (iv) by any vol- untary sale, assignment, or transfer permitted by this Lease shall thereby be bound by all of the provisions of this Lease, provided, however, that the rights of any party, including a mortgagee, to ac- quire the title to the leasehold estate of the Developer in the De- mised Premises is subject to such mortgagee's or party's curing all defaults of the Developer under this Lease which are susceptible of being cured by a party other than the Developer by the payment of money, subject to the provisions of Section 11.4(h)(3). 11.6 Assignment by Mortgagee.. Any•mortgagee or any par- ty described in Section 11.5, or their respective successors or as- signs, acquiring title to the leasehold estate of the Developer shall have the right to assign such leasehold estate by instrument in writing executed with formalities of deed, accepted by the as- signee and recorded among the Public Records of Dade Countv. Florida. No such assignment shall be effective until a certified copy of such recorded assignment has been delivered to the City. Thereafter the liability of the assignor shall be forever released and discharged from the obligations of this Lease. 11.7 Mortgagee's Right to s New Lease. (a) Notwithstanding any provisions of this Lease under which the City may declare a default and terminate or cancel -44- 92- 490 1ST 4 date of such termination which are within the power of said Mort- gagee to perform (any default not within the power of said Mortgagee to cure or perform and all of the matters described in Section 11.4(h)(3) shall be deemed waived as to such Mortgagee), the City shall enter into and deliver a new lease of the Demised Premises with such Mortgagee for the remainder of the term at the same Addi- tional Rent and on the same terms, provisions, and conditions as contained in this Leasep—including all rights of extension thereof, and dated as of the date of termination of this Lease and deliver a cuitclaim deed to the Hotel, to such tortgagee, free of encum- brances, liens, claims or charges imposed thereon by the City. The =.{ estate of the Developer's First Mortgagee, as lessee under the new lease, shall have priority equal to the estate'of the Developer hereunder (that is, there shall be no charge, lien or burden upon the Demised Premises prior to or superior to the estate granted by such new lease which was not prior to or superior to the estate of the Developer under this Lease as of the date immediately preceding the date this Lease went into default, except, however, any charge, _Ij lien, or burden which should not have been permitted or should have -'� been discharged by the Developer under the terms of this Lease). i The quitclaim deed to the Hotel shall recite that the grantee holds title to the Hotel only so lon7 as the new lease shall continue in ;;. full force and effect, that upon termination of the new lease, title to the Hotel shall revert to the City automatically without payment, that the grantee covenants not to convey the Hotel except g2-- 490 simultaneously and with an assignment of the lessee's interest in the.'new lease and except to the assignee thereof, and that such covenants shall run with the property conveyed and bind all future owners thereof. Nothing herein contained shall be deemed to impose' any obligation upon the City to deliver physical possession of the Demised Premises to Developer's First Mortgagee unless the City has physical possession thereof. Said Mortgagee shall pay all expenses, including reasonable attorneys' fees, incident to the execution and delivery of such new lease and quitclaim deed, reduced by an amount equal to the net income, if any, derived by the City from the Hotel during the period from the date of termination of this lease to the date of execution of such new lease, after deduction from such net income an amount equivalent to the Additional' Rent that would have been payable under this Lease for such period. i 11.8 Limited Liability. Notwithstanding that all the covenants, agreements, conditions and undertakings herein are in substance and form expressed in language creating personal covenants on the part of any mortgagee, the liability of any mortgagee, and of any mortgagee's successors or assigns, and the liabilty of any party described in Section 11.5, or Section 11.6 or Section 11.7, and such party's 'successors and assigns, shall be limited to and shall not extend beyond the leasehold estate hereby created and the Hotel and any mortgagee's or any such party's interest in the Demised Premises -47- is� 9 2- 490 and' 'the hotel; and any mortgagee and any such party and their re- spective successors and assigns, shall never be held personally lia- ble on any covenant or agreement or understanding herein expressed, nor shall any action lie against any such mortgagee or any such par- ty, o. their respective successors or assigns to enforce or exert any obligation or liability hereunder, except as enforceable against the leasehold estate and the Hotel, it being the intention of the parties that the sole remedy of the City in enforcing liability hereunder and all the terms, covenants and conditions contained in this Lease shall be limited to the leasehold estate and interest in the Demised Premises and the Hotel of any such mortgagee or any such = par ty. . 11.9 Amendments Subject to Consent. The Developer agrees it shall not amend or terminate this Lease without the prior written consent of any holder of any mortgage lien on the Demised Premises. The City agrees that it shall not amend or terminate this Lease without the. prior written consent of the Trustee under the trust agreement securing the Revenue Bonds of the City, so long as any of its Revenue Bonds are outstanding. Section 12. RESTRICTIONS ON USE. 12.1 Authorized Uses. The Developer shall use and operate the Hotel as a first-class hotel and the Additional Hotel Spaces for the intended purposes and square footages as follows: -4 g- 92- 490 157 • Additional Hotel Space Number as Shown on Exhibit "S" Intended Purpose Area in Square Feet � - 1 Engineering/Maintenance 2,461 2 General Storage 2,773 3 Men's and Women's - Lockers and Toilets 2,473 4 Housekeeping 3,048 _ 5 Laundry Rooms 4,510 = 6 Personnel/Security 280 7 Receiving/Personnel 2,555 8 Accounting 11380 - 9 Kitchen/Employees' Cafeteria 8,674 10 Hotel 'Offices 3,840 11 Trash Room 384 12 Food Service Corridor 629 - 13 Ballroom Storages 2,349 14 Liquor Storages/Cooler 651 15 Main Ballroom 11,248 - 16 Pre -Function 31700 _ 17 Retail 24,354 18 Front Desk 2,169 19 Lobby Lounge 1,966 20 Public Toilets t 1,080 21 Coffee Shop 3,049 22 Kitchen 3,321 /- 23 Oyster Bar •1,517 24 Restaurant 5,747 25 Palm Court 3,770 Total 97,925 S.F. - Ti 4 It is agreed that within the above total square footage of 97,925 S.F. the various areas in square feet are esti- mates only and may be modified if necessary. 12.2 Gamier. In the event gaming is legalized or autho- ,y rized within the State of Florida, Dade County and the City of Miami, it is herehy specifically agreed that the Demised Premises may be used for such gaming purposes pursuant from the 9 9 P p r u�nt to licensing -49- 92-- 490 MR appropriate governmental authorities should such licensing be ob- tained by the Developer. In such event, the City shall be entitled to renegotiate the rent hereunder provided that any additional rent to the City shall be competitive with industry standards in effect for other similar type facilities where such gaming is permitted. 12.3 Limitation on Retail Sub -tenants. The Developer's retail sub -tenants and concessions shall be only those types normal- ly associated with the aperation of a first-class hotel and conven- tion center. Section 13. PUBLIC CHARGES. 13.1 Covenant for Pavment of Public Charges. The Devel- oper and the City covenant and agree to pay and -discharge, before any'fine, penalty, interest or cost may be added, all Public Charges applicable to the Demised Premises and the Hotel; or the Convention Center and Parking Garage, respectively. 13.2 Evidence of Payment of Public Charges. The Devel- oper, upon request, shall furnish or cause to be furnished, to the City and to any mortgagee, if the Demised Premises or the Hotel are encumbered with a mortgage, official receipts of the appropriate taring authorities or other proof satisfactory to the City or the mortgagee, evidencing the payment of any Public Charges which were due and payable on the Demised Premises or the Hotel thirty (30) days or more prior to the date of such request. -5Q- 92- 490 159 13.3 Pavment of Public Charges. Notwithstanding the provisions of Section 13.1, the Developer and the City shall have the'right to pay Public Charges in installments if permitted by law,. and to contest the amount or validity, in whole or in part, of any Public Charges by appropriate proceedings and, if the Developer or the City, as the case may be, is prosecuting such proceedings with reasonable diligence, the payment of Public Charges may be postponed :to the extent permitted by law so long .as such contest shall continue. 13.4 Separate Taxable Interests. If the Excepted Premises and the Demised Premises shall be subject to a single ad valorem tax assessment (it being understood that under current law, the Developer's leasehold estate in the Demised Premises is subject to ad valorem taxes and the City's interest in the Premises is exempt from ad valorem taxes) whether as a result of change in law or disposition by the City to a non tax-exempt person, the City, for itself and its successors and assigns, covenants and agrees promptly to divide the entire property into two (2) parcels in any manner permitted by law so that the Excepted Premises and the Demised Premises will each comprise separate taxable parcels for ad valorem tax purposes. Such division shall be made in a manner that will preserve intact the benefits and burdens of this Lease. r . -51- 92- 490 � �G Section 14. INDEi'NIFICATION AND INSURANCE. 14.1 (a) Indemnification by Developer. The Developer shall pay, indemnify and save harmless the City, its officers, agents, and employees from all suits, actions, claims, demands, damages, losses and other reasonable expenses and costs of every kind and description to which the City, its officers, agents or employees may be subjected by reason of personal injury, or injury .to persons or death or,property damage, resulting from or growing out of any commission, omission, negligence or fault of the Develop- er, its officers, agents or employees, or its contractors or sub- contractors or any lessee of the Developer or its hotel manager in connection with (i) any building, construction, installation or de- velopment work, service or operation being undertaken or performed by o.r for the Developer in, on or over the Demised Premises, or (ii) any uses, occupancy, maintenance, repair and improvements, or opera- tion of the Demised Premises; provided, however, that such indemni- fication shall be limited to the extent that the City, its officers, agents or employees are not protected by insurance, whether such in- surance has been supplied by the Developer, the City, or their offi- cers, agents or employees. The Developer shall pay all costs and expenses' which may be incurred by, and any monies due under any judgment or decree rendered against the City (i) in enforcing com- pliance by the Developer with provisions of this Lease, or GO in defending any suit or proceeding brought against the City for viola- tion by the Developer of any law or ordinance during the Lease Term, -52- 92- 490 • 1 b� 'oe *(iii) in defending any action or suit for which indemnification is required hereunder. If the City 'shall be made a party to any litigation with respect to any matter growing out of this Lease to the extent that the Developer is at fault, the Developer shall pay all judgments, decrees and costs or expenses incurred by or imposed on the City in connection therewith. (b) Indemnification by the City. The City shall :pay, indemnify and saye harmless the Developer, its officers, agents, and employees from all suits, actions, claims, demands, damages, losses and other reasonable expenses and costs of every kind and description to which the Developer, or its officers, agents or employees may be subjected by reason Qf personal injury, or in- jury to persons or death or property damage, resulting from or grow- ing 'out of any commission or omission of •the City and its officers, agents or employees, or their contractors or sub -contractors as to the City, or any Lessee of the City in connection with (i) any building, construction, installation or development work, service or operation being undertaken or performed by or for the City in, on or over the Excepted Premises or the Parking Garage, or (i i) any uses, occupancy, maintenance, repair and improvements, or operation of the Excepted Premises or the Parking Garage, provided, however, that such indemnification (1) shall be limited to the extent the Develop- er, its officers, agents or employees are not protected by insur- ance, whether such insurance has been supplied by the Developer, the City, their officers, agents or employees, and (2) shall he limited -53- 92~ 490 r so- that the City shall be responsible only for its own actions and those of its officers, agents, employees, contractors, sub- contractors, and Lessees. For purposes of this provision, the Developer shall not be deemed an officer, agent, employee, con- tractor, sub -contractor or lessee of the City. The City shall pay all costs and expenses which may be incurred by, and any monies due under any judgment or decree rendered against the Developer (i) in enforcing compliance by ,the City with provisions of this Lease, or (ii) in defending any suit or proceeding brought against the Devel- oper for the violation by the City of any law or ordinance during the Lease Tern, or (iii) in defending any action or suit for which indemnification is required hereunder. If the Developer shall be made a party to any litigation with respect to any matter growing out of this Lease to the extent that the City is at fault, the City shall pay all judgments, decrees and costs or expenses incurred by or imposed on the Developer in connection therewith. 14.2 Insurance Coverage of Developer. (a) Durinu the Construction Period. The Devel- oper, at its expense, shall keep the Hotel insured during the Con- struction Period against loss or damage as a result of fire and those other hazards• ordinarily insured against under an "All Risks Coverage" builder's risks insurance policy on a "Completes Value Form" issued by an insurance company authorized to do business in the State of Florida, and approved by the City and the Developer's First Mortgagee. Such insurance shall be in an amount sufficient to • prevent the Developer from being a co-insurer and shall be main- tained in an amount not less than one hundred percent (100%) of re- placement cost of the Hotel. Each insurance policy shall contain a = loss payable clause in which the loss shall be paid to the Devel- oper, and to the Developer's First Mortgagee and the City, as addi- tional insureds, as their interests may appear. (b) Property Coverage After the Construction _ ;Period. The Developer, at its expense, shall keep the Hotel insured i after the Construction Period against loss or damage as a result of fire, boiler and machinery, bursting pipes, and those other hazards - ordinarily insured against from time to time during the term of this Lease in the City of Miami, Florida, under policies providing for "All Risks Coverage" for physical damage or loss, to the extent that such insurance is generally available from insurers of recognized responsibility authorized to do business in Florida. The insurer shall be approved by the City and the Developer's First Mortgagee. Such insurance shall be in an amount sufficient to prevent the ? Developer from being a co-insurer and shall be maintained in an _ amount not less than one hundred percent (100%) of replacement cost of the Hotel as determined by annual evaluation on the anniversary - date of the insurance or by inflation endorsement if available. Each insurance policy shall contain a loss payable clause in which - • the loss shall be paid to the Developer, and to the Developer's Jj First Mortgagee and the City, as additional insureds, as their in- terests may appear. i -55- g2_ 490 1 _ v (c) Use of Insurance Proceeds. (i) In the event of any loss or damage to the. Hotel by reason of fire or other casualty costing more than Fifty Thousand and no/100 Dollars ($50,000.00) in the aggregate to repair, the proceeds of all such insurance shall be paid to Develop- er's First Mortgagee for application as hereinafter provided. The Developer may make claim for the proceeds, adjust and compromise any claim for a period of four (4) months after the date the loss oc- curs, subject to the approval of the settlement by the Developer's First Mortgagee; after four months the Developer's First Mortgagee shall have the sole right to adjust and compromise the claim. In either event the Developer's First Mortgagee shall, except as other- wise provided herein, release the proceeds to the. Developer for re- pair or restoration as hereinafter provided. (ii) The Developer's First Mortgagee shall apply and make available and pay jointly to the Developer and Developer's contractor, sub -contractor, supplier or other designated payee, the net proceeds of any fire or other casualty insurance paid to said Mortgagee for any loss or damage which shall occur during the term hereof, after deducting any costs of collection, including attorneys' fees, for repair or restoration (the "Work") as the same progresses, payment to be made against prc , r ly certified draw re- quests or vouchers, certifies] by a competent architect in charge of the Work who is licensed in the State of Florida and approved by the Developer's First Mortgagee, which approval shall not be -56- 92- 490 ..'•unreasonably withheld. The Mortgagee may withhold from each amount disbursed such amounts as are allowed or required to be withheld (r under the mechanics' lien law of Florida until proof has been furnished to the Mortgagee that the Work has been completed and that no lien has attached or will attach to the Hotel. The Developer's First Mortgagee shall also be satisfied that the amount of any proceeds remaining in its hands will be sufficient upon completion of the Work to pay for the same in full. (iii) The Developer shall promptly and diligently commence and complete the repair and restoration of the Hotel to conform with the approved plans and specifications for the Hotel as they existed immediately preceding the date of loss or damage, un- less otherwise agreed to by the City and Developer's First Mortgagee. (iv) During the 'progress of the Work, the City and its architects and engineers, or any of -them, may from time f to time inspect the Work at all reasonable times and may examine copies of all plans and specifications relating to the Work. In the event that the City shall determine that the Work is not being done in accordance with the approved plans and specifications, then the City may give the Developer written notice specifying in detail the particular deficiency or omission noted, and the Developer shall take measures to cause corrections to be made as to any such defi- ciencies or omissions. (v) In the event that the proceeds of the insurance should be insufficient to complete the Work, based upon the bids obtained or architects' estimates, then in that event the Developer shall have the right to'deposit with the Developer's First Mortgagee, within thirty (30) -days of request therefor by Devel- oper's First Mortgagee, sufficient additional funds as reasonably determined by Developer's First Mortgagee to cover the costs of the Work before any contracts are let or any Work commences. In the event that the Developer fails or refuses to deposit the additional funds with Developer's first Mortgagee, the Developer's First Mort- gagee shall promptly notify the City whereupon the City shall have the right within thirty (30) days of such notice to deposit with the f Developer's First Mortgagee such additional funds sufficient to cover the costs of the Work. In the event the City fails or refuses to deposit such additional funds with the Developer's First Mort- gagee within such thirty 30 .. 9 y ( ) day period, the Developer s First r. Mortgagee shall by notice to the Developer and the City within 'j thirty (30) days thereafter have the right to advance such addition- al funds. If the Developer, the City and the Developer's First Mortgagee all fail or refuse to deposit or advance such additional funds, this Lease shall terminate and the proceeds of insurance shall be paid in the order of lien priority, first, to Developer's First Mortgagee, then to the holder of any other lien indebtedness on the Demised Premises or the Hotel, and the balance shall be paid 1 to the City. (d) Comprehensive General Public Liability Coverage During Construction Period. The Developer shall secure and -h, .t. r' 78 92-u 490 a N ii 4M AW ' maintain o: cause to be secured and maintained in full force and effect during the Construction Period such comprehensive general public liability insurance for premises and operations, including but not limited to, coverage for explosion, collapse and underground ("X.C.U.") hazards, independent contractors, products and completed operations, and contractual and personal injury liability, as will protect the Developer, the City, their respective officers, agents .and employees, from any +and all claims and damages for personal in- jury, injury to persons or death, or •damage to any property of the City or of the public, which may arise out of or in connection with the performance of any work or operations by the Developer in, on or over the Demised Premises during the Construction Period whether said work or operations be by the Developer, or its contractors or sub -contractors, or by anyone directly or indirectly employed by any of them. This coverage shall include, but shall not be limited to a combined single limit of Ten Million and no/100 Dollars ($10,000,000.00), for personal injury, injury to persons or death or for property damage. Each policy shall name the City, and any mort- gagee as additional insureds and each policy shall contain cross - liability endorsements. (e) Comprehensive General Public Liabilitv Coverage After Construction Period. The Developer shall secure and maintain, or cause to be secured and maintained, in full force and effect after the Construction Period comprehensive general public liability insurance for premises and operations, including, but not � h -59- `tt' 92-- 490 AM Aft� Siff-• t limited to coverage for "X.C.U." hazards, independent contractors, products and completed operations and contractual and personal in- jury liability, as will protect the Developer, the City, their offi- cers, agents and employees, from any and all claims for damages for personal injury or death, or for damage to any property of the City or the public which may arise out of the Developer's use and occu- pancy of the Demised Premises. This coverage shall include, but not be limited to a combined single limit of Ten Million and no/100 Dol- lars ($10,000,000.00) for personal injury, injury to persons or death or for property damage. Each policy shall name the City, and any mortgagee as additional insureds and each policy shall contain cross -liability endorsements. (f) Comprehensive Automobile Liabilitv Cov_ erase. The Developer shall secure and maintain, during and after the Construction Period, such comprehensive automobile liability in- surance, including non -owned and hired car coverage, as will protect the -Developer, and mortgagee and the City from any and all claims and damages for personal injury or death or property damage to any property of the City or of the public which may arise out of or in connection with the performance of any work or operations done'by or for the Developer in connection with the development or operation of the Hotel during and after the Construction Period whether such work or operations be by the Developer, or its contractors or sub- contractors, or by anyone directly or indirectly employed by any of -60 - 92- 490 them. The amount of such insurance shall be not less than a corr.- bined single limit of Ten Million and no/100 Dollars ($10,000,000.00) for injury or death or for property damage. (g) Workmen's Compensation Coverage. The Devel- oper shall secure and maintain, in full force and effect, such work- men's compensation insurance as is required under the laws of the State of Florida. (h) Business Interruption and Other Insurance. After completion of construction the Developer shall secure and maintain or cause to be secured and maintained in full force and ef- fect business interruption insurance and such other insurance against other insurable hazards not provided for in this Lease which are from time to time applicable to the use of the Demised Premises j. in such amount as shall be recommended to the City by an indepen- dent, experienced and qualified insurance consultant for protection against losses and liabilities which the Developer would incur and continue to bear to the City and the Developer's First Mortgagee during a period when the Demised Premises or a portion thereof are out of operation due to fire or other casualty. Notwithstanding the foregoing, the City shall not be required to insure or indemnify the Developer for Developer's loss of income, directly or indirectly, due to fire or other casualty interrupting the use of any portion of the Excepted premises; the Developer shall not be required to insure or indesnn i fy the City for the C i ty' s loss of income, including Addi- tional Rent, directly or indirectly, due to fire or other casualty -61- 99- 490 � �a t AIM -interrupting the uS.7- of any portion of the uemised Premises. If / Developer's First Mortgagee shall succeed to the position of the 1. Developer as lessee under this Lease, such Mortgagee shall not be rectuired to maintain the insurance coverage described in this Sec - Lion 14.2(h); provided, that,•at the option of the City, such insur- ance coverage as shall be necessary to protect the interest of the City shall be continued in force, subject to the City's agreement to pay the premium for such insurance coverage as it becomes due and payable. (i) Limited Release of Liabilitv and Waiver of Subrogation. The City and the Developer release each other, and their respective authorized representatives, from any claims for damage to any person or to the Premises that are caused by or result from risks insured against under any insurance policies carried by the City or the Developer and in force at the time of any such damage. The City and the Developer shall cause each insurance poli- cy obtained by either to provide that the insurance company waives all right of recovery by way of subrogation against any insured par- ty in connection with any damage covered by any policy. If the re- lease of the City or the Developer as set forth in the first sen- tence of, this subsection shall contravene any law with respect to exculpatory agreements, the liability of the party in question shall be deemed not released but shall be secondary to the other's in- surers. -G2- 14.3 Non -Cancellation Clause. All insurance policies or agreements shall provide (to the extent such provision is obtaina- ble)• that they cannot be cancelled or terminated until after at least thirty (30) days prior notice has been given to the City and the Developer's First Mortgagee to the effect that such insurance policies or agreements are to be cancelled or terminated at a par- ticular time. 14.4 Certificates of Insurance. The Developer shall de- liver all original policies of insurance to Developer's First Mort- gagee if required by said Mortgagee. The Developer and the Cite shall provide each other with certificates of insurance or other ac- ceptable proof of compliance with the insurance provisions of this Lease. 14.5 Richt of Citv to Obtain Insurance. In the event the Developer at any time refuses, neglects or fails to secure and maintain in full force and effect any or all of the insurance re- quired pursuant to this Lease, the City or Developer's First Mort- gagee, at the option of either, may procure or renew such insurance and all amounts of money paid therefor shall be payable forthwith by the Developer to the City or said Mortgagee, as the case may be, with interest thereon from the date the same were paid at the pr i-me rate of Citibank, N.A., New York City to the date of payment. 14.6 Non -Waiver of Developer's Cblioations. No accep- tance or approval of any insurance policy or policies by the City or the Developer shall relieve or release or be construea to relieve or -63- 92- 490 A release the other party from any liability, duty or obligation as- sumed by, or imposed upon it by the provisions of this Lease. 14.7 Mutuality of Insurance obligation. (a) All insurance obligations of the Developer hereunder as they relate to its procurement of insurance on the Hotel and its operation shall equally apply to the City in its pro- curement of insurance on the Convention Center and the Parking Ga- rage and their operation. including, without limitation, the types of coverages, the amount* of insurances, the deductible amounts and the naming of the Developer and Developer's First Mortgagee as addition- al insureds. (b) Without limiting the foregoing, the City at its expense during the term of this Lease shall* keep the Parking Garage and the Convention Center insured against loss or damage as a result of fire, boiler and machinery, bursting pipes and those other hazards ordinarily insured against under an "All Risks Coverage" po- licy issued by an insurer licensed in the State of Florida under po- licies for physical damage or loss, to' the extent that such in- surance is generally available from insurers of recognized responsi- bility authorized to do business in Florida. The insurer shall be selected after consultation with the Developer. Such insurance shall be in an amount sufficient to prevent the City from being a co-insurer and shall be maintained ,in -an amount not less than one hundred percent (1001) of the replacement cost of the Parking Garage and the Convention Center. -64- (c) If the City shall refuse or fail to secure and. maintain any insurance required hereunder to be maintained by the -City, in full force and effect, the Developer shall have the right to procure or renew such insurance and all amounts for pre- miums paid therefor by the Developer may be offset or repaid as pro- vided under Section 3.6 (d) The City shall provide the University and :Developer with certificates of insurance or other acceptable proof of compliance with the insurance provisions of this Lease for the Convention Center, the Parking Garage and other areas for which the City has the responsibility of maintenance under this Lease. 14.8 Reasonable Deductible. All insurance required by this Section 14 may contain a reasonable deductible provision pro- vided the City and Developer's First Mortgagee are given advance notice of said deductible provision and approve the same in writ- ing. For purposes hereof, Ten Thousand and no/100 Dollars ($10,000.00) shall be deemed a reasonable deductible amount for property coverage. 14.9 Insurance Carriers: Mandatory Coveraqe. Main- tenance of insurance by the City and the Developer as required under this Lease is obligatory, and neither the Developer nor the City shall be permitted to be self -insurers, except with regard to the reasonable deductible applicable to property coverage. -G5- 5 2-- 490 e 1 - I Section 15. MAINTENANCE, REPAIR AND REPLACEMENT. 15.1 Maintenance and Repairs. The Developer, at its ex- pense shall keep the Hotel in good and clean order and condition and will promptly make all necessary or appropriate repairs, replace- ments and renewals thereof, whether interior or exterior, structural or non-structural, ordinary or extraordinary, foreseen or unfore- seen. All repairs, replacements and renewals shall be equal in •quality and class to the.original work. The Developer shall comply with all laws, ordinances, codes and regulations applicable there- to. The Developer shall have the right, after written notice to the City, to contest by appropriate legal proceedings, conducted in good faith, the validity or applicability of any such law, ordinance, code or regulation, and to delay compliance 'therewith pending the ..a prosecution of such proceeding, provided no civil or criminal lia- bility would be incurred by the City and no lien or charge would be imposed upon or satisfied out of the Excepted Premises by reason of such delay. 15.2 Reserve for Replacements. The Developer shall establish a reserve for replacements in the minimum amount of Three Hundred Twenty -Four and no/100 Dollars ($324.00) per roo►,, per year to provide funds for replacement or improvement of those parts of the Developer's Improvements and the furniture, fixtures and equip- ment therein which are subject to deterioration as a result of ordi- nary use and wear and tear so that the Hotel will at all times be '66- 92- 490 to ' 175 kept and maintained in first-class condition and repair. Such re- serves shall be maintained in a separate bank account and may be ex- pended by Developer only for the purpose set forth in this Section. Said. reserve amount of Three Hundred Twenty -Four and no/100 Dollars ($324.00) per room is subject to upward increases for equivalent in- creases in the Consumer Price Index, using the index for the year the Hotel First Opens for Business as the base year, 15.3 Waste. ;!'he Developer shall not permit, commit or suffer waste or impairment of the Demised Premises, or the Hotel, or any part thereof. 15.4 Alterations of Improvements. The Developer shall �i have the right, from time to time, to make such alterations and im- provements,, structural or otherwise, to the Hotel•, as the Developer deems desirable; provided, however, that the Developer shall not, without the prior written consent of the City, demolish all or any part of the Hotel, or change the Hotel so as to make it less compat- ible with the operation of the Convention Center. Section 16. FIRE OR OTHER CASUALTY. 16.1 Developer's Dutv - Anv Loss or Damage. (a) In the event of any loss or damage to the Hotel by reason of fire or other casualty involving more than Fifty Thousand and no/100 Dollars ($50,000.00), the Developer shall give immediate notice to the City and Developer's First Mortgagee. -67- 92- 490 Ir (b) The Developer shall diligently commence and complete the repair or restoration of the Hotel in accordance with the terms of Section 14.2 of this Lease; all repair or restoration shall be completed free and clear of all mechanics' liens and the Developer shall comply with Florida mechanics' lien laws. 16.2 Citv's Dutv - Anv Loss or Damaae. (a) In the event of any loss or damage to the Convention Center or Parking Garage by reason of fire or other casualty involving more than Fifty Thousand and no/100 Dollars ($50,000.00), the City shall give immediate notice to the Developer and to the Developer's First Mortgagee. (b) (i) The City shall promptly and diligently commence and complete the repair or restoration -of the Convention Center or Parking Garage to conform with the approved plans and specifications for the Convention Center or Parking Garage as they existed immediately preceding the date of loss or damage, unless otherwise agreed to by the Developer. All repair or restoration shall be completed free and clear of all mechanics' liens and the City shall comply with Florida mechanics' lien laws. (ii) During the progress of such repair or restoration, the Developer and its architects or engineers, or any of them, may from time to time inspect the repair or restoration at all reasonable times and may examine copies of all plans and specif- ications relating to the repair or restoration. In the event that -5s- 92- 490 ,.the'[7eveloper shall determine that the work is not being done in ac- cordance with the provisions of paragraph (i) above, the Developer r may,give the City written notice specifying in detail the particular deficiency or omission noted, and the City shall take measures to cause corrections to be made as to any deficiencies or omissions. (iii) In the event that the City fails to promptly commence and complete the repair or restoration of the Convention Center or the Parking Garage, as aforesaid, the Developer, at its option and upon twenty (20) days prior notice to the City, may per- form such repair or restoration work, or any part(s) thereof, and offset any amounts expended as provided in Section 3.6, or may sue for specific performance. (iv) In the event of any loss, or damage to the Convention Center or the Parking Garage 6y reason of fire or other casualty costing more than Fifty Thousand and no/100 Dollars ($50,000.00) in the aggregate to repair, the proceeds of all insur- ance shall be paid into a segregated escrow account with an escrow agent reasonably satisfactory to the Developer and the proceeds of all such insurance shall be used, applied and made available for purposes of such repairs and restoration. In the event that the proceeds -of the insurance paid by reason of such loss or damage to the Convention Center or the Parking Garage shall be insufficient to pay the costs of completing the City's required repair or restora- tion obligations, based upon responsible bids or architect's esti- mates obtained by the City, then, in that event, the City may de- posit into said escrow account before any contracts are let or work -63- 92-- 490 r AOL commences, sufficient additional funds to cover the balance of the costs of repair or restoration. Such escrow account shall be pur- suant to an escrow agreement which requires distribution by the escrowee for payment of restoration or repair work pursuant to the provisions of this Lease as such work progresses and provided the escrowee is satisfied that the undisbursed balance of 'such ac- count together with the remaining insurance proceeds is sufficient to complete such restoratiop or repair work. For the purposes here- of, the Trustee under the Trust Indenture securing the City's Reve- nue Bonds shall be an escrowee satisfactory to Developer. (v) In the event that the Citv fails or refuses to deposit such required additional funds into such escrow account, the Developer, within thirty (30) days after the City's failure or refusal to deposit, may deposit such sufficient addition- al funds with the Developer's First Mortgagee. and may use such funds, together with all insurance proceeds, to complete the repair or restoration of the Convention Center and Parking Garage. Such additional funds deposited by the Developer shall not be used until all insurance proceeds for damage to the Convention Center or the Parking Garage have been expended to repair such damage. If both the City- and and the Developer fail or refuse to deposit such addi- tional funds, the Developer's First Mortgagee may elect to advance .1 such funds within thirty (30) days after the expiration of the date within which Developer is required to deposit such funds,. which election, if made, shall be by written notice to the City and the -70- 92- 490 '1eveloper and such advance shall be made in installments as work progresses but not before all insurance proceeds paid because of such damage to the Convention Center or the Parking Garage have been expended to repair such damage. If the Developer elects to deposit such additional funds, or the'Developer's First Mortgagee elects to advance such additional funds, the Developer or the Developer's First Mortgagee, as the case may be, shall have full right of access to the Convention Center and the Parking Garage to the extent neces- sary .to cause completion of such repairs or restoration. If neither the City nor the Developer nor the Developer's First Mortgagee de- posits or advances such funds, the Developer shall be relieved of all obligations under this Lease (including, without limitation, the obligation to pay Additional Rent) and .in addition the Developer shall have the right to terminate this Lease at any time thereafter by notice to the City. The Developer may offset as provided in Sec- tion 3.6 any amounts so deposited by the Developer or advanced by the Developer's First Mortgagee. 16.3 Partial Loss or Damage Not to Terminate Lease. Any loss or damage by fire or other casualty which does not termi- nate this Lease as herein provided shall not operate to relieve or discharge the Developer from the performance and fulfillment of any of the Developer's obligations pursuant to this Lease or to relieve or.discharge the City from the performance and fulfillment of any of the City's obligations pursuant to this Lease. 41. Amend Section 17 to read as follows: -71- w 92- 490 AWN Sect ion 17 . CO►iDEMNATION. 17.1 If There is a Total Taking. (a) If there is (i) a total taking of the De- mised Premises, the Hotel, and the Excepted Premises or (ii) a total taking of the Demised Premises and the Hotel (whether or not there is any taking of the Excepted Premises) by virtue of the exercise of the right of eminent domain, then the Additional Rent and any other charges and expenses owing by the Developer shall be prorated and paid by the Developer to the date possession is taken by the condemning authority, and this Lease shall upon that date cease and determine. (b) If there is a total taking of the Excepted Premises but not a total taking of the Demised- Premises and the ' r Hotel, then, at Developer's option, to be exercised by notice to the City within sixty (60) days after possession of the Excepted Pre- mises is taken by the condemning authority, the Additional Rent and any other charges and expenses owing by the Developer shall be pro- rated and paid by the Developer to the date possession of the Ex- cepted Premises is taken by the condemning authority and this Lease jshall upon that date cease and determine. If the Developer shall not so elect, then this Lease shall continue in full force and ef- fect and the City shall restore such portion of the Convention Center as may be permitted by law. 17.2 If There is a Partial Takina. If only a part of the Excepted Premises or the Demised Premises or the Hotel shall be 92-- 490 91 taken by eminent domain, the City, in the case of a partial taking of *the Excepted Premises, and the Developer, in the •case of a r partial taking of the Demised Premises or the Hotel, shall forthwith proceed to restore its segment of the Project. 17.3 Determination of Type of Taking. (a) There shall be deemed to be a total taking of the Excepted Premises if all or substantially all thereof shall :be permanently taken or„taken for a period, in excess of five (5) years by the exercise of the power of -eminent domain or by an agree- ment between the City and those authorized 'to exercise such power. Substantially all of the Excepted Premises shall be deemed to have been taken if the remaining portion of the Excepted Premises is not sufficient in the judgment of the City and the•Developer, reasonably r exercised, to economically justify continued operation of the Excepted Premises. (b) There shall be deemed to be a total taking of the Demised Premises and the Hotel if all or substantially all thereof shall be permanently taken or taken for a period in excess of five (5) years by the exercise of the power of eminent domain or by an agreement between the Developer and those authorized to exer- cise such power. Substantially all of the Demised Premises shall be deemed to have been taken if the remaining portion of the Demised Premises is not sufficient in the judgment of the Developer and the City, reasonably exercised, to economically justify continued opera- tion of the Hotel. t -73- 92-- 490 W l AV i e (c) Any taking other than a total taking shall be deemed a partial taking. 17.4 Allocation of Awards. (a) The amount of damages resulting to the City and the Developer, respectively, and to their respective interests in and to the Project in connection with this Lease, by reason of any exercise of the power of eminent domain, shall (unless the part- ies are able to agree tc,their respective damages) be separately de- termined and computed by the court having jurisdiction and" separate awards and judgments with respect to such damages to the City and the Developer, respectively, and to each of their respective inter- ests, shall be made and entered. In the event that such court shall make a single award without separately -determining the respective interest of the City and the Developer and if the City and the Developer shall not agree in writing as .to their -respective portions of such award within twenty (20) days after the date of the final determination by such court of the amounts thereof, the City and the Developer agree to submit the matter to. such' court on stipulation for purpose of a judgment determinative of their respective shares. (b) On a partial taking of the Demised Premises and the -Hotel, all condemnation awards attributable to the Develop- er's interest in the Demised Premises and the Hotel shall be deposi- ted with the Developer's First Mortgagee for application, subject and pursuant to the provisions of Section 14.2(c) of this Lease, in which case the references to insurance proceeds as u3cd therein shall be deemed to refer to condemnation proceeds. -74- 92- 490 ' (c) On a partial taking or' the Excepted Premi- ses, all condemnation awards attributable to the Excepted Premises shall be applied subject and pursuant to the provisions of Section 16.2 of this Lease, in which case the reference to insurance pro- ceeds as used therein shall be deemed to refer to condemnation pro- ceeds. 17.5 Takings•of the Parking Garage. (a) If there is a partial taking of the Parking Garage, the City will restore the Parking Garage to the extent feasible and provide additional parking facilities in reasonably close proximity to the Convention Center so that the restored Parking Garage and said additional parking facilities will have capacity for not fewer than 1,450 automobiles .with respect to which the parking priority set forth in Section 9.2 shall apply first to the restored Parking Garage and then to the .additional parking facilities. (b) If there is a total taking of thl Parking Garage, the City will provide a new parking facility in reasonably close proximity to the Convention Center so that the new parking facility will have capacity for not less than 1,000 automobiles with respect to which the parking priority set forth in Section 9.2 shall apply. (c) If there is a partial or total taking of the Parking Garage and a contemporaneous partial or total taking, or 92-- 490 'destruction, of th Deirised Premises and the Hotel then the pro- visions of Section 17.5 (a) or (b) , as the case may be, shall apply only if the Hotel, under the applicable provisions of this Lease, is to be restored. (d) In making the foregoing provisions, the par- ties recognize that the City has the power of eminent domain and that the City may be required to exercise such power in order to fulfill its obligations hereunder, but the City shall be required to exercise such power only in accordance with the applicable law. This provision imposes upon the City the further obligation to com- mence and complete with diligence such acquisition of land and the construction of improvements as necessary. and the further amendment of this Lease to identify the additional parking facilities governed by this Lease. The provisions of this Section 17.5 may be enforced by specific performance in addition to such other.remedies as may be provided by law. 17.6 Rights of the Developer's First Mortgagee. (a) Any option of the Developer to elect to con- tinue or terminate this Lease set forth in this Section 17 shall be exercised solely by the Developer's First Mortgagee during any time period when the Demised Premises or the Hotel are subject to a mortgage. (b) All awards payable by reason of a taking of the Devised Premises, or the Hotel, or part thereof, by eminent do- main or settlement in lieu thereof, and all rights of the Developer -76- 92- 490 I I ' '^ti • � 1 •to negotiate for or accept such awards shall lie in the Developer's First Mortgagee during any time period when the Demised Premises or r the -Hotel are subject to the Developer's First Mortgage. Section 18. DEFAULT - TERMINATION. • 18.1 Default by the Developer. There shall be an event of default by the Developer under this Lease if: (a) The Developer shall fail to pay any install- ment of rent or any other sum !due to the City hereunder when and as the same becomes due and payable and such failure shall continue for more than then ten (10) days after written notice thereof from the City to the Developer; or (b) The holder of any indebtedness secured by lien on the Developer's interest in the Demised Premises or the Hotel (whether or not the Developer is personally liable for such indebtedness), shall declare the Developer in default of the terms of such indebtedness, or of any instruments relating thereto, beyond any grace period provided with respect thereto, and such default shall not have been waived; or (c) The Developer shall fail to perform or comply with any other material term or provision hereof and such failure shall continue for more than thirty (30) days after the City shall have given the Developer notice of such failure; or if the de- fault cannot be reasonably cured within thirty (30) days, the Devel- oper shall fail to begin to cure such default within said thirty -77- 92-- 490 (30) days and thereafter diligently proceeds to remedy the matter to the extent such matter is possible to cure; or - � (d) The Developer shall make a general assign- ment for the benefit of creditors, or shall admit in writing its in- ability to pay its debts as they become due or shall file a petition in bankruptcy, or shall be adjudicated a bankrupt or' insolvent, or shall file a petition seeking any reorganization, arrangement, com- position, readjustment, .liquidation, dissolution or similar relief under any present or future statute, law or regulation, or shall file an answer admitting, or shall fail reasonably to contest, the material allegations of a petition filed against it in any such pro- ceeding, or shall seek or consent to or acquiesce in the appointment of any trustee, receiver or liquidator- of the Developer or any material part of its properties; or (e) Within ninety (90) days after the commence- ment of any proceeding against the Developer seeking any reorganiza- tion, arrangement, composition, readjustment, liquidation, dissolu- tion or similar relief under any present or future statute, law or regulation, such proceeding shall not have been dismissed, or if, within ninety (90) days after the appointment without the consent or acquiescence of the Developer of any.. trustee, receiver or liquidator of the Developer or of any material part of its properties, such appointment shall not have been vacated; or (f) The Developer shall fail to give notice to the City of the securing of sufficient funds to construct the Hotel -73- 9w-- 490 197 'on or before the date the City delivers its Revenue Bonds to the purchasers thereof. /r In such event, but subject to Section 11 herein - above, the City, at any time thereafter, may give a written notice of termination to the Developer, and on the date, specified in such notice, which shall not be less than sixty (60) days, this Lease shall terminate and the term hereof shall expire and all rights of ;the Developer hereunder shall cease, unless before such date speci- fied (i) all arrearages of rent payable to the City under this Lease shall have been paid and (ii) all other defaults hereunder at that time existing shall have been remedied. In the event of the occur- rence of (f) above, the Developer's obligations hereunder shall cease. 4 ' 18.2 Default by City. There shall be an event of de- fault by the City under this Lease if: (a) The City shall have failed to prepare the Premises for development in accordance with the provisions hereof; or (b) The City shall have failed to construct the Convention Center or Parking Garage or shall have been delayed in completing same on or before the time provided herein; or (c) The City shall have failed to perform or r comply with any other material term or provision hereof and such failure to perform shall continue for more than thirty (30) days after the Developer shall have given the notice of such failure. -79- y�.- 490 i I In any such event, the Developer at any time thereafter, (in r addition to any other remedy available to Developer as a matter of law*or as set forth herein) may give a written notice of termination to the City, and on the date specified in such notice, which date shall not be less than thirty (30) days, this Lease shall terminate and the Developer's obligations hereunder shall cease, unless before such date the City shall have cured the default, provided, however, .any such curing of a default described in (b)'above shall not re- lieve the City from any obligation to pay damages for such default. In the event of a delay or failure by the City in completing the facilities pursuant to (b) above, the City shall'be required, as an element of damages, to pay the additional interest expense payable by the Developer to its mortgage lender until 'such time as the Con-vention Center is completed. The Developer's remedies for an event of default by the City shall also include, without limitation, the right to perform any obligation of the City hereunder and the City shall pay the costs of Developer of curing such default (plus in- terest on such costs at the rate at which money may be available to Developer from its commercial sources). In addition to payment of interest expense incurred by the Developer attributable to any delay caused by the City, the City shall. also pay such other reasonable costs and expenses incurred by the Developer attributable to such delay, which may include those such as additional commitment fees to extend any construction or permanent loan commitment, or additional cost to obtain a new construction or permanent loan commitment, if 92- 490 by reason. of such delay the existing construction or perm nent loan commitment is cancelled. Notwithstanding any provisions in this r Lease under which the Developer may declare a default and terminate or cancel this Lease or the City's rights or interest thereunder, no notice of default given by the Developer to the City shall cause this Lease to terminate without prior written consent'of the Devel- oper's First Mortgagee. 18.3 Obligations, Rights and Remedies Cumulative. The specified rights and remedies to which either the City or the Devel- oper may resort under the terms of this Agreement are in addition to any other remedies or means of redress to which the City or the Developer may be lawfully entitled and may be pursued successively or concurrently. ' 18.4 Non -Action on Failure to Observe Provisions of jr this Lease. The failure of the City or the Developer to insist upon strict performance of any term, covenant, condition or provision of this Lease shall not be deemed a waiver of any right or remedy that the City or the Developer may have, and shall not be deemed a waiver of a subsequent default of such term, covenant, condition or provi- sion. 18.5 Non -Performance Due to Causes Bevond Control of Parties. (a) In the event performance of any of their respective covenants, agreements or obligations under this Lease by the City or the Developer is prevented, interrupted or delayed by _ causes beyond its control, including but not restricted to strike, riot, storm, floor:, acts of God or of the public enemy, acts of the Government, acts of the other party, fires, epidemics, quarantine -81- w 490 �9D restrictions, freight embargoes and unusually severe weather, or delays of sub -contractors due to such causes, and not caused by any act -or failure to act by the party thereby delayed in such perfor- mance, the date or time or times for the performance of such cove- nant, agreement or obligation shall be extended for a period of time equal to the number of days the performance of such covenant, agree- ment or obligation is so prevented, interrupted or delayed without liability to the other �fpr.costs, damages, injuries or liabilities sustained, suffered or incurred by the other in connection with such covenants, agreements or,obligations. (b) The times for completion of construction provided in Section 5.1(c) as to the Developer and Section 6.3(c) as to the City shall not be extended notwithstanding. the provisions. of Section 18.5(a); provided, however, if the Developer's First Mort- gagee shall agree to extend the time for completion of construction by the Developer, then the time for performance by the City shall be 5 extended by an equal number of days. To the extent that completion of construction by the City or the Developer, as the case may be, extends beyond their respective completion dates the City or the Developer, as the case may be, shall be liable to the other for costs, damages, injuries, or liabilities, sustained, suffered or in- curred by the other for failure to complete construction timelv. (c) In the event that the City or the Developer intends to avail itself of the provisions of this Section, the City and the Developer shall give written notice of such intent to the -82- 9 2-- 490 other; such notice to be given is not to exceed fifteen (15) days from the date performance of such covenant, agreement or obligation was .so prevented, interrupted or delayed. 18.6 Surrender of Demised Premises. Upon the expiration of the Lease Term hereunder in respect to the Demised Premises pur- suant to Section 18 or any other provisions hereof, it shall be law- ful for the City to re-enter and repossess the Demised Premises and ..the Hotel without process of law, and the Developer, in such _event, does hereby waive any demand for possession thereto, and agrees to surrender and deliver the Demised Premises, the Hotel and all furniture, fixtures and equipment thereon peaceably to the City immediately upon such expiration or termination in good order, con- dition and repair, except for reasonable wear and tear. 18.7 Ownership of Improvements. The title to the Hotel i and to any additions or improvements thereof shall forthwith vest in the Developer and shall become the property of the Developer; pro- vided, however, that upon the termination of this Lease, either by default or expiration of its term, the Hotel and any additions or improvements thereto shall become the absolute property of the City, clear of all encumbrances and charges, and without cost of any kind to the City. 18.8 Party in Position of Surety with Respect to Obligation,. The Developer, for itself and its successors and as- signs, and for all other persons who are or who shall become, wheth- er by express or implied assumption or otherwise, liable upon or -83- 92-- 490 •su.bject to any obliydtion or burden under this Lease, hereby waives, i =i to the fullest extent permitted by taw and equity, any and all claims or defenses otherwise available on the ground of its (or �{ their) being or having become a person in the position of a surety, 's whether real, personal, or otherwise or whether by agreement or op- eration of law, including, without limitation on the generality of the foregoing, any and all claims and defenses based upon extension of time, indulgence, or modification -of terms of contract. Section 19. OUIET ENJOYMENT. The City covenants that the Developer, upon paying the Rent and other charges herein provided for, and upon performing all of the other covenants, and complying with agreements, terms and conditions of this Lease on its part to be performed or complied with, shall not be hindered or molested in its enjoyment of the De- mised Premises or of its air, light and view. Section 20. MISCELLANEOUS. 20.1 Non -Discrimination. The Developer agrees it will not discriminate upon the basis of race, color, creed, national ori- gin, aoe or sex in the. construction, sub -leasing, use, occupancy or operation of the Der" sed Premises or the Hotel to be erected there- on, and that each contract, sub -lease or agreement with respect thereto shall specifically contain this provision. -84- y2- 490 20.2 Equal Opportunity Provision. (a) In the construction and operation of the Hotel neither the Developer nor any contractor or manager employed by the Developer shall discriminate against any employee or appli- cant for employment because of race, color, religion, age, sex or national origin, and they shall take affirmative action to ensure that applicants are employed, and that employees are treated during ,employment, without regard to their race, color, religion, age, sex, or national origin. Such action shall include, but not be limited to, the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising, layoff or termination; rates of pay or other forms of compensation, and selection for training, Including apprenticeship. The Developer agrees to post in conspic- uous places, available to employees and applicants for employment, r notices to be provided by the City setting forth the provisions of this Equal Opportunity Clause, and to cause any contractor, sub-contracto`t or manager to do likewise. (b) The Developer and any contractor or manager shall, in all solicitations or advertisements for employees placed by them or on their behalf, state that all qualified applicants will receive consideration or employment without regard to race, color, religion, age, sex or national origin. They shall send to each la- bor union or representative or workers with which they, or any of them, have a collective bargaining agreement or other contract or understanding, a notice, to be provided by the City, advising the -85- 92•- 490 Tabor union o. workers; representative of their commitments under this Equal Opportunity Clause, and shall post copies of the notice f in 'conspicuous places available to employees and applicants for em- ployment. Any contractor or sub -contractor shall comply with all -i provisions of Executive Order No. 11246 of September 24, 1965, and of the rules, regulations and relevant orders of the Secretary of Labor and shall furnish all information and reports required by Executive Order No. 11246 of September 24, 1965, and by the rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to its books, records and accounts _E -` by the City and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations and orders. _i 20.3 Certification of Nonsegregated Facilities. The De-veloper certifies that it does not maintain or provide for its em- ployees any segregated facilities at any of its establishments, and - that it does not permit its employees to perform their services at _t any location, under its control, where segregated 'facilities are maintained. *The Developer certifies further that it will not main- tain or provide for its employees any segregated facilities at any of its establishments, and that it will not permit its employees to perform their services at any location, under its control, where -1 segregated facilities are maintained. The Developer agrees that a ". breach of this Certification is violation of the Equal Opportunity Clause of this Lease. As used in this Certification, the terms "se- gr�gated facilities" means an! waiting rooms, work areas, rest rooms and wash rooms, restaurants, and other eating areas, time clocks, locker rooms and other storage or dressing areas, parking lots, r drinking fountains, recreation or entertainment areas, transportion, and housing facilities provided .for employees which are segregated by explicit directive .or are in fact segregated on the basis of race, color, religion, or national origin, because of habit, local custom or otherwise. The Developer further agrees that it will ob- stain identical certifigations from proposed contractors, sub- contractors and managers prior to the award of any contracts and that it will retain such certifications in its files. 20.4 Internal Revenue Code Compliance. The City repre- sents and warrants to the Developer that the Convention Center as finally constructed shall not consist -bf not less than 410,000 square feet and the Additional Hotel Spaces therein allocated to the Developer shall not exceed 100,000 square feet, or 24.9% of the whole, such that the City will not be disqualified under applicable law from issuing tax free revenue bonds. Neither the City nor the Developer shall take any action which would cause said, bonds to be deemed industrial development bonds or arbitrage bonds as defined in Section 103(b) and Section 103(c), respectively, of the Internal Re- venue Code of 1954, as amended, and the applicable regulations thereunder. 20.5 Participation in Civic Functions at Convention Center. The Developer agrees -that it shall annually make matching funds with the City or the City's designee, an amount not to exceed -87- 92 - 490 R One Hundred Thousand and no/100 Dollars ($100,000.00) for the spon- sor.ing of cultural, civic or other events at the Convention Center which will result in the promotion of the City, the Convention Cen- ter and the Hotel. 20.6 Assignment by Developer. The Developer may hot sell, convey, assign or otherwise transfer or dispose' of any or all of its right, title and interest in and to the Demised Premises .without prior written consent of the City, which consent, the City shall not unreasonably withhold except, however, that the Developer may assign all or any portion of this Lease (including any right of approval reserved to Developer) as security to the holder of the first mortgage on the Demised Premises without consent of the City. 20.7 Notices. . All notices, demands, - requests for ap- provals, approvals, or other communications which may be or are re- quired to be given by either party to the other -in writing shall be deemed given and delivered if delivered in person or if sent by reg- istered or certified mail, postage prepaid and addressed: TO DEVELOPER. TO CITY Miami Center Associates, Ltd. The City of Miami c/o Worsham Bros. Co. City Hall 1401 W. Paces Ferry Road, N.W 3500 Pan American Drive Suite 2-E Miami, Florida 33133 -( Atlanta, Georgia 30327 Attention: City Manager The addresses to which notice is to be sent may be changed from time to tire by a writing delivered to the other party. Until notice of change of address is received, a party may rely upon the last ad- dress given. Notice shall be deemed given, if notice is by mail, 92- 4E90 when delivered to the address set forth above, whether or not the letter is accepted or the party to whom it is addressed is in fact then at that address. 20.8 Conformance to Law and Representations. This Lease conforms and is subject to applicable law in force on the date of the legal effectiveness of this Lease. Each of the parties rep- resents to the other that it is authorized to enter into this Lease -and to assume the obligations and liabilities imposed upon it under this Lease and applicable law. 20.9 Invalid Provisions. If any provision of this Agreement is held invalid, the remainder of this Agreement shall not be affected thereby if such remainder would then continue to conform to the requirements of applicable laws. 20.10 Applicable Law and Construction. The laws of the State of Florida shall govern the validity, performance and enforce- ment of this Lease. The submission of this document for examination does not constitute an offer to lease, or a reservation of or option for the premises and becomes effective only upon execution and de- livery thereof by the City and the Developer. The headings of the several sections contained herein are for convenience only and do not define, limit or construe the contents of such sections. This Lease has been negotiated by the City and the Developer and the Lease, together with all of the terms and provisions hereof, shall not be deemed to have been prepared by either the City or the Devel- oper, but by both equally. Q*Z 92- 490 r rz 20.11 Amendments. The City agrees to make such amend- ments to this Lease as may be reasonably required by Developer's First Mortgagee or title insurance company in order to make Developer's interest in this Lease mortgagable and insurable. 20.12 Gender and Number. Words of any gender used in this Lease 'shall be held to include any other gender, and words in the singular number shall be held to include the plural (and vice - :versa), when the sense requires. 20.13 Award of Contract. The Developer warrants that he has not employed or retained any company or persons to solicit this Lease and that the Developer has not paid or agreed to pay any com- pany or persons any fee, commission, percentage, brokerage fee, or gifts or any other considerations contingent Opon or resulting from the award or making of this Lease. The Developer also warrants that to the best of its knowledge and belief no commissioner, mayor or other officer or employee of the City is interested directly or indirectly in the profits or benefits of this Lease or the job, work, or services for the City in connection with the contract or construction of this Project. The Developer is aware of the conflict of interest clause of The City of Miami, Dade County, and the State of Florida f and agrees that it shall fully comply in all respects with the tears of said clause. 20.14 Public Park and River b•:alk. The Premises abuts a public park and river walk area, and the City agrees that the plans -90- y2- 490 ` and specifications for such public park and river walk shall be com- ple.ted as required, and said plans for the public park and river walk shall be subject to the Developer's reasonable approval. The City agrees that the public park and river walk shall be used only for such purposes during the entire term of this Lease, and the City further agrees to complete the construction thereof *in accordance with Section 6.3 in timely concert with the Developer's completion -of construction of the .Developer's Improvements and to thereafter maintain the same in a first-class manner. 20.15 Development of Patricia Hotel Site. Should the City develop plans for the improvement and utilization of the former Patricia Hotel site, the Developer and its mortgagees shall have the reasonable right of approval of the design concept to determine that the'same is compatible with the Hotel and does not in any manner in- terfere with or harm the same, which right of approval will not be arbitrarily or unreasonably exercised. 20.16 Agreements With The University. This Agreement does not override or supersede the University. Agreement, or the Agreement between the Developer and the University dated April 10, 1978. The University Agreement shall only be modified hereafter by the City in a manner which shall not conflict with the provisions of this Lease. 20.17 Use of University Space. On termination of the University Agreement or upon termination of the lease contemplated by the University Agreement of the City shall cause such space to be used for conference center purposes only. -91- 92- 490 le t . IF 20.18 Et'Eoonel Certificates. The Developer and the City agree that at any time and from time to time, upon not less than'ten (10) days prior notice by the other party, each party will execute, acknowledge and deliver to the other a statement in recordable form certifying that this Lease is unmodified and in full force and ef- fect (or if there have been modifications that the same as so modi- fied is in full force and effect and stating the modifications) and the dates intended tha4.any such statement delivered pursuant to this section may be relied upon by any prospective purchaser, mort- gagee, assignee of any mortgage or assignee of the respective in- terests under this Lease, made in accordance with the provisions of this Lease. 20.19 Clarification of Intent. (a) Property Subject to Mortgage. The fee simple title in -and to the land is vested in the City and any mortgage. by the Developer will not extend to said fee simple title but only to the leasehold interest of the Developer "in the Demised Premises and the ownership interest of the Developer in the Hotel. (b) Identification of As -Built Plans. As soon as practical after completion of construction, this Lease shall be further amended to identify the as-huilt plans and specifications of the Convention -Center, Hotel and Parking Garage, and located specifically by surveys and legal descriptions of all improvements, Air Spaces and Easements. -9 `- �2- 490 � Y (c) Entire Lease In One yocument. „ r• At any appropriate time, upon request of � the City or the Developer, this Lease and all amendments thereto shall be reduced to a single instrument, all to the end that the covenants, obligations and undertakings of the City and the Develop- er shall repose in a single document. 20.20 Date of Effectiveness of Lease. (a) This Lease contains the entire agreement of the parties hereto respecting the subject matters of this Lease and supersedes all prior understandings, contracts or agreements. (b) This Lease is effective as of April 20, 1978 notwithstanding the date of its execution. 20.21 No Merger With Fee. I.t is ,understood and agreed that in the event that the City acquires* an interest in the lease- hold estate, such interest shall not merge with .its interest as the fee owner of the Demised Premises. Likewise, in the event that the Developer acquires an interest in the fee such interest shall not merge with its interest as'the lessee of the leasehold estate. IN WITNESS WHEREOF, the parties hereto have set their hands as of the day of July, 1980. ATTEST:. CeI5 �.—'C i ty C THE CITY OF MIaMI, (a municipal corpora ion of the State of Flor idaf -•I city manager . I _93- 92- 490 I vrL--ST : r: APPROVED AS TO FORM AND CORRECTNESS Ge6r�ffi F. Knox, Jr., Cit Attornvf Is MIAMI CENTER ASSOCIATES, LTD. a Florida Limited Partnership By: Miami Center Associates, Inc. as General Partner President APPROVED AS TO CONTENT mes J. onnolly, Proj t Director, Director Conx tion Center 114TER-OFFICE h1EMORANDUM Honorable Mayors and Members of the City Commission Cesar H. Odio :Rom I City Manager gECOMMENDATION DATE �! "N - Authorization to Enter SUBJECT Into Professional Services Agreement with Leisure Management Inc. (LMI) REFERENCES ENCLOSURES 1 It is respectfully recommended that the City Commission adopt the attached Resolution, authorizing the City Manager to execute an agreement, in substantially the form attached, with Leisure Management, Incorporated (LMI) to provide professional services for the Miami Convention Center for a five year period commencing on October 1, 1992 and terminating on September 309 1997, with an optional five (5) year renewal term subject to adjustment as provided under the terms of the agreement with funds therefor being allocated from the Department of Conferences and Conventions Operating Budget. BACKGROUND The Department of Conferences, Conventions and Public Facilities recommends that the City Commission adopt the attached Resolution to continue the management and operation of the City of Miami James L. Knight International Center. The City of Miami/University of Miami James L. Knight International Center opened on April 27, 1982 and is required by the "Lease and Agreement" between the City of Miami and Miami Center Associates to have a management agreement with a professional management firm, having experience in management of convention centers or civic facilities comparable to the Convention Center. In accordance with City of Miami Ordinance 9672 which appears as Section 18.52.2 of the Code of the City of Miami, the selection process was carried out as outlined in the previous reports submitted to you of the proceedings of the Selection Committee meetings. It is therefore recommended that the City Commission adopt the attached Resolution in its entirety. Attachments: Proposed Resolution Professional Services Agreement 92— 4190 10-1 DID_SRCURIT?_LIST 311D ITENt N-,-�..ANAG MENT,- QP .A►' ���'�� Sr eQ eTHE MIAMI DID g 0 . 91-92_ 54 _ _--_---_.----------- ----------- ----- DATE DTDCS) OPINED: ARCH 3_,1,1 1�.92�N?:.30_.P«.:d_------------ - ll TOTAL DID DORDAgEl . DIDDHR >_ID_,121- 1 CASHIER'S_CHECR__- SMGN-rNw__lNYr_ _N NN-N_ N•r----�- LMI LEISURE MANAGEMENT INTERNA OVAL N -----N_N TECTON MANAGEMENT SERVICES INC.-NN • _NNN-_- NNNN yr__-!_N_- N__N___N!_ __NN_ N_-_w_N_•! NN___ _NN_ __N_-w__N-_ -_---NN__e N---------w LZ7- -------- ----=-------- ----- NN_ ------------- --- Mir- ------ NNN_Ns ------N- _-__-r-_N____ '1 i LEGAL ADVERTISEMENT REP NO, 91-92-054- FEB Zg P1 Z. i CI YY �'���;;; el ^; T r ! ' Sealed proposals will be received by the City of Miami City Clerk at her office located at City Hall, 3500 Pan American Drive, Miami, Florida not later than 2:30 p.m. March 30, 1992 for the management, operation and maintenance of the Miami Convention Center for the Conferences, Convention and Public Facilities Department. Proposals submitted after the deadline and/or submitted to any other location or office shall be deemed not responsive and will be rejected. The City will conduct a pre -proposal conference on Monday, March 16, 1992 as listed in the proposal's Special Conditions. Ordinance No. 10062, as amended, established a goal of Awarding 51% of the City's total dollar volume of all expenditures for All Goods and Services to Black,. Hispanic and Women Minority Business Enterprises on an equal basis. Minority and women vendors who are interested in submitting proposals and who are not registered with the City as minority or women vendors are advised to contact the City Procurement Office, 1390 N.W. 20th Street, Second Floor, Telephone 575-5174. Ordinance #10032 established a "First Source Hiring Agreement" program to stimulate the creation of employment for City of Miami residents. For details of the program's requirements, contact the Neighborhood Jobs Program at 579-2468. Detailed specifications for the proposals are available upon request at the City Procurement Office. The City Manager may reject all proposals and readvertise. (Ad No. 245) Cesar H. Odio City Manager r, M. ii 2�)) 0 ran? rn ni m n "n REQUISITION FOR ADVERTISEMENT DEPT/DIV. Procul?einent (foi: Coiifereiict-!s, ACCOUNT CODE 350119 DATE 2/26/92 dx 5 17 4 PHONE PREPARED BY T-Lille �qldt-lt-aker This number must appear In the advertisement. 2� u 0.5 Publish the attached advbrtisement One times. (number of times) TYP6 of advertisement: i legal X- classified display (Check One) Size. legal i Starting date First four words of adverilisement: Sealed proposals will --be .... Remarks: llp"p lox inanagement/ol)eratigii of 14-Land ConyeiiUpii Center Do NOT TYPE BELOW THIS LINE. FOR USE OF FINANCE DEPARTMENT ONLY. DATE(S) OF LINE PUBLICATION ADVERTISEMENT INVOICE AMOUNT zr 0 Miami Review A-1 Miami )Times -XI pla 7 , Diarid las Pimeric.as r C-32 D-41 E-51 F3 F4 'F5 F7 F8 F9 F10 F11 F12- LINE TRANS VCkJCHER DUE DATE YY MM DD AdvDoc Reference - VENDOR INDEX CODE 0 B JE C7, I , PROJECT 11 113 1 117 18 1 2534 39,42 45 50 51 56 57 i 62 63 65 66 7 2 14 111 ",_ VIP I 1_ 2181 1 Ir" I "I 2 314 7 8 V Pj 1213114115 DESCRIPTION 36 64 DISCOUNT69 72 AMOUNT So 511 2 010121011,, Yellow copy:( Pink mopy: , White - Purchasing Miriam Parry City 49 Procurement itiL. Yellow - Finance cleriz I S Approved for Payment Pink - Department