HomeMy WebLinkAboutR-87-0141.1It I
J--87-127
1/29/87
RESOLUTION NO. 8 r -.-1 41ol.
A RESOLUTION AUTHORIZING AND DIRECTING
THE CITY MANAGER TO EXECUTE
DEVELOPMENT AGREEMENTS WITH
CIRCA/BARNESS/SAWYER, A GENERAL
PARTNERSHIP, IN A FORM ACCEPTABLE TO
THE CITY ATTORNEY, FOR THE DEVELOPMENT
OF PARCEL 55 EAST OF THE PHASE I
REDEVELOPMENT AREA OF THE SOUTHEAST
OVERTOWN/PARK WEST REDEVELOPMENT
PROJECT SUBJECT TO A SATISFACTORY
APPRAISAL.
WHEREAS, the City Commission by Resolution No. 82-755
approved, in principle, the Southeast Overtown/Park West
Redevelopment Plan; and
WHEREAS, the City Commission by Resolution No. 84-893
authorized the City Manager to issue a Request for Unified
Development Project Proposals for Phase I of the Southeast
Overtown/Park West Redevelopment Project; and
WHEREAS, proposals were received and evaluated by a
certified public accounting firm and by a selection review
committee appointed by the City Commission; and
WHEREAS, the City Manager considered the findings of the
certified public accounting firm and the evaluations of the
selection review committee and recommended development entities
and proposals for acceptance for the Phase I development parcels;
and
WHEREAS, the City Commission by Resolution No. 85-393
approved the City Manager's recommendation of
Circa/Barness/Sawyer, a general partnership, as the development
entity to develop Parcel No. 45, Parcel No. 55 and Parcel No. 56
of the Phase I Redevelopment Area in accordance with the ,
development proposal submitted and in compliance with the Unified
Development Project procedures as set forth in the Cit of Miami
Charter, Section 53 (c) ; and : CI�'Y COMMISSION'
MgETING OF
Page No. 1 FEB81,- ��,4�
SOWTION Na 77
WHEREAS, the City Commission by Resolution No. 85-393
directed the City Manager to negotiate a land disposition
agreement(s) with the aforementioned development entity and to
present the negotiated agreement(s) to the City Commission for
its consideration and approval; and
WHEREAS, the City Commission has been presented with the
aforementioned negotiated land disposition agreement(s) and finds
the terms acceptable; and
WHEREAS, the City Commission has also been presented with
evidence confirming that the aforementioned developer has secured
firm financing commitments for all funds needed to initiate
construction in accordance with the provisions of said land
disposition agreement(s); and
WHEREAS, the developer has agreed to provisions for annual
land lease payments that are consistent with a land residual
reuse appraisal;
NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE
CITY OF MIAMI, FLORIDA:
Section 1. The City Manager is hereby authorized and
directed to execute the Development Agreements with
Circa/Barness/Sawyer, a general partnership, in a form acceptable
to the City Attorney, for the development of Parcel No. 55 East
of the Phase I Redevelopment Area of the Southeast Overtown/Park
West Redevelopment Project, subject to a satisfactory residual
reuse appraisal specifying that the rental payments due under the
Agreement are not less than fair value for the uses in accordance
with the Redevelopment Plan.
8'7-141,.1
Page No. 2
Section 2. Said Agreements shall require that
Circa/Barness/Sawyer, a general partnership, shall initiate
construction within one year from Commission approval of the
Development Agreement(s) by actual commencement of the
construction of physical elements at Parcel No. 55 East.
Section 3. Prior to the execution of said Agreements
Minority Participation Plans will be reviewed by the City Manager
to insure that all major subcontractors have been identified and
that sufficient evidence has been provided concerning efforts to
meet the minority participation goals for the project.
PASSED AND ADOPTED THIS 12th day of February , 1987.
XAVIER L. SUAUZ , MAYOR
ATTEST:
wow
MATTY HIRAI, CITY CLERK
PREPARED AND APPROVED BY:
'e '4"t �L - M"le
ROBERT F. CLARK, CHIEF DE.
APPROVED, -AS TO FORM AND CORRECTNESS:
IA'A. DOUGHERTV, CITY ATTORNEY
8'7-Ulh A
Page No. 3
CITY OF MIAMI, FLORIDA 14
INTER -OFFICE MEMORANDUM
To. Honorable Mayor and
Members of the City Commission
J
FROM.
Cesar H. Odi
City Manager
RECOMMENDATION:
It is respectfully recommended that
attached resolution authorizing and
execute Development Agreements in
Attorney with Circa/Barness/Sawyer,
development of Parcel 55 East (Lots
Redevelopment Area of the Southeast
Project.
BACKGROUND:
DATE: FEB 41987 RILE:
SUBJECT, RESOLUTION ON LAND
DISPOSITION TO DEVELOPER
SOUTHEAST OVERTOWN/PARK
WEST REDEVELOPMENT
AEFEIMENCES:
ENCLOSURES:
the City Commission approve the
directing the City Manager to
a form acceptable to the City
a general partnership, for the
1-7 and 14-20) of the Phase I
Overtown/Park West Redevelopment
The Department of Development and the Law Department have analyzed
and reviewed these Development Agreements. The Agreements are for
multiple parcel development and include all the terms necessary to
allow Stage I and subsequent development to proceed in accordance
with the accepted proposal. (The City Commission selected
Circa/Barness/Sawyer to develop Parcels 45, 55 and 56 of Phase I of
the Redevelopment Project in accordance with their overall
development proposal, which called for a complex of 241 rental
housing units, 427 condominium units, and 138,800 square feet of
commercial space on April 11, 1985.)
Stage I of the Circa/Barness/Sawyer development program calls for the
construction of 164 rental housing units and 10,000 square feet of
commercial space on Lots 1-7 and 14-20 of Parcel 55. 'The Agreements
stipulate that to insure the continuation of development rights for
the remaining parcels (Parcel 45, Lots 8-13 of Parcel 55, and Parcel
56) construction must be -initiated on an additional parcel within two
(2) years of the issuance -of the Certificate of Occupancy for the
initial project (Stage I) and development of all parcels must be
initiated within five (5) years' from the date of execution of the
Agreements.
87--141,.1
Honorable Mayor and
Members of the City Commission
Page 2
The Agreements bind the developer to not only complete the overall
project as proposed but also to adhere to a minority participation
goal calling for 50 percent Black hiring and 50 percent Black
contracting. Additionally, the proposed resolution authorizing the
execution of the Agreements stipulates that Minority Participation
Plans will be reviewed by the City Manager and that land will not be
transferred until all major subcontractors have been identified and
sufficient evidence provided concerning efforts to meet the minority
participation goals for the project.
The the Stage I Agreement requires lease payments to the City as
follows:
(i) Rental Years 3-5: Ten cents (.10) per square foot
of all commercial and residential development; and
(ii) Rental Years 6 thru Agreement Termination: Three
percent- of available gross income from residential and
commercial development.
The developer is bound by a $100,000.00 performance bond to complete
Stage I. The site (Parcel 55 East) will be transferred to the
developer upon commencement of construction. Circa/Barness/Sawyer is
slated to -begin construction Spring, 1987.
Circa/Barnes s/Sawyer has been awarded 1 million dollars for project
development through Dade County's Surtax Program. The Surtax
Application was approved January 21, 1987. "
Rental rates for the units to be developed are proposed (for 1988
leasing) at $239-450 for an efficiency or artist studio, $323-550 for
a one -bedroom unit and $409-675 for a two -bedroom unit. Twenty to
twenty-five percent of the units must be set aside for persons with
incomes below Dade County's median income per Surtax Program
regulations. This set aside mandates the aforementioned rent
schedule (or range) for unit types.
Parcel 55 was acquired with a grant 'from the Urban Mass Transit
Administration.
Attachments
Proposed Resolution
Circa Status Report Dated January 12, 1987
Development Agreements
Z
S'7-Ul d
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L ju QU U- U I LIU
I ITI HH R-1-- Mon]
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37
IH.
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Circa
REAL ESTATE DEVELOPME�V J11AOf
628 WEST R177ENHOUSE STREET
PHILADELPHIA, PENNSYLVANIA 19144
TELEPHONE (215) 843-0999
STATUS REPORT - January 12, 1997
CIRCA BARNESS SAWYER
BLOCK 55 EAST
THE ODESSA
PR03ECT FINANCING
•
1747 CHURCH STREET NORTHWEST
WASHINGTON, D.C. 20036
TELEPHONE (202) 265.2270
After unsuccessful efforts to obtain credit enhancement on bonds from
numerousMiami financial institutions, we have identified three alternative
outside sources - FHA coinsurance, an insurance company and a New York bank
• that have expressed interest in pr6viding credit enhancement. We have
provided them with a recently completed independent market analysis from
,k olff Economics and are in the process of having an appraisal done. Once
the appraisal is completed, we will be able to obtain a conditional
committment for credit enhancement, subject only to submission of final A/E
drawings. The only additional major piece needed to proceed with credit
enhancement after this is a firm construction price from Turner which they
will provide after 70% working drawings are received. Once we have this
information, we will determine which source of credit enhancement offers
the most favorable terms for the project and then proceed with a bond
sale.
Based on ongoing meetings we have been having with Turner and the
architects, construction costs will be somewhat higher than our preliminary
estimates. The main reason for this is a modification in our unit mix based
on recommendations by Wolff to substantially increase the number of two
bedroom units and reduce the number of efficiencies. Our total number of
units (164) remains the same although total square footage will increase.
Based on cost changes, we will eequire $7.2 million in CD float (versus the
$6.4 million originally anticipated) and we will need to increase the
amount of our bond inducement from Dade County HFA to $7.2 million. We
have two sources of letter of credit backing for the CD float (NCNB bank
and the Dade County Plumbers Union Pension Fund) and we will have meetings
with both sources in the next few weeks to discuss terms. Lester Simon of
Dade HFA indicated there is no problem with obtaining an increased bond
inducement and we will be on the HFA Board's February agenda for this.
ARCHITECTURAL PLANS
Preliminary plans will be submitted for review on January 22, 1987. Final
working drawings for the site, townhouses and parking garage will be
submitted on February 11 and for the mid -rise building on March 4.
8 7-1:4191.
1_/
PUBLIC UTILTIES
Information requested by the utilties was submitted on December S, 1986. A
copy can be sent to you if not in your file.
MARKETING PLAN
We are in the process of preparing a marketing plan. We will have a final
rendering in the next 30 days which can be used for publicity purposes
(i.e. in the overall project brochures and kiosks). We have been having
discussions with several Miami P.R. firms but have not yet selected anyone
to work with us in preparing brochures and a marketing/media strategy. Our
schedule at this point is to begin focusing on the marketing plan as soon
as we have completed the design phase. We anticipate having unit models
for pre -leasing about three months before units are ready for occupancy -
Spring -Summer, 1988.
CITY ASSISTANCE
1) Getting a go-ahead from HUD - Washington on CD float terms.
2) Final surtax board approval for $1,070,000.
3) Increasing the CD float amount to $7.2 million.
4) Increasing bond inducement amount to $7.2 million.
S) Building code enforcement on blocks surrounding redevelopment area.
6) Action on apartment building on Max Bauer block.
7) Final action on land disposition agreement by City Commission.
8 7-1411
•
•
J-87-127
1/20/87
a
RESOLUTION NO.
A RESOLUTION AUTHORIZING AND DIRECTING
THE CITY MANAGER TO EXECUTE
DEVELOPMENT AGREEMENTS WITH
CIRCA/BARNESS/SAWYER,• A GENERAL
PARTNERSHIP, IN A FORM ACCEPTABLE TO
THE CITY ATTORNEY, FOR THE DEVELOPMENT
OF PARCEL 55 EAST OF THE PHASE I
REDEVELOPMENT AREA OF THE SOUTHEAST
OVERTOWN/PARK WEST REDEVELOPMENT
PROJECT SUBJECT TO A SATISFACTORY
APPRAISAL.
WHEREAS, the City Commission by Resolution No..
approved, in principle, the Southeast Overtown/Park
Redevelopment Plan; and
82-'755
West
WHEREAS, the City Commission by Resolution ,No. 84-893
authorized the City Manager to issue a Request for Unified
Development Project Proposals for Phase I of the Southeast
Overtown/Park West Redevelopment Project; and
WHEREAS, proposals were received and evaluated by a
certified public accounting firm and by a selection review
committee appointed by the City Commission; and
WHEREAS, the City Manager considered the findings of the
certified public accounting firm and the evaluations of the
selection review committee and recommended development entities
and proposals for acceptance for the Phase I development parcels;
and
WHEREAS, the City Commission by Resolution No. 85-393
approved the City Manager's recommendation of
Circa/Barness/Sawyer, a general partnership, as the development
entity to develop Parcel No. 45, Parcel No. 55 and Parcel No. 56
of the Phase I Redevelopment Area in accordance with the
development proposal submitted and in compliance with..the Unified
Development Project procedures as set forth in the City of Miami
Charter, Section 53•(c); and
87rl4l .-1
Page No. I 5
WHEREAS, the City Commission by Resolution No. 85=393
directed the City Manager to negotiate a land disposition
agreement(s) with the aforementioned development entity and to
present the negotiated agreement(s) to the City Commission for
its consideration and approval; and
WHEREAS, the City Commission has been presented with the
aforementioned negotiated land disposition agreement(s) and finds
the terms acceptable; and
WHEREAS, the City Commission has also been presented with
evidence confirming that the aforementioned developer has secured
firm financing commitments for all funds needed to initiate
construction in accordance with the provisions of said land
disposition agreement(s); and
WHEREAS, the developer has agreed to provisions for annual
land lease payments that are consistent with a land residual
reuse appraisal;
NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE
CITY OF MIAMI, FLORIDA:
Section 1. The City Manager is hereby authorized and
directed to execute the Development Agreements with
Circa/Barness/Sawyer, a general partnership, in a form acceptable
to the City Attorney, for the development of Parcel No. 55 East
of the Phase I Redevelopment Area of the Southeast Overtown/Park
West Redevelopment Project, subject to a satisfactory residual
reuse appraisal specifying that the rental payments due under the
Agreement are not less than fair value for the uses in accordance
with the Redevelopment Plan.
Page No. 2
8'7-141�.1.
6
Section 2.. Said Agreements shall require that
Circa/Barness/Sawyer, a general partnership, shall initiate
construction within one year from Commission approval of the
Development Agreement(s) by actual commencement of the
construction of physical elements at Parcel No. 55 East.
Section 3. Prior to the execution of said Agreements
Minority Participation Plans will be reviewed by the City Manager
to insure that all major subcontractors have been identified and.
that sufficient evidence has been provided concerning efforts to
meet the minority participation goals for the project.
PASSED AND ADOPTED THIS day of
XAVIER L. SUAREZ, MAYOR
ATTEST:
MATTY HIRAI, CITY CLERK
PREPARED AND APPROVED BY:
'4't -�L - g&'x '
ROBERT F. CLARK, CHIEF DE
APPROVE TO FORM AND'CORRECTNESS:
7
L-UCIV A. D0UGHERTV, CITY ATTORNEY
. 1987.
Page No. 3
City OF MIAMI. FL0$RtbA i
INtIIt-OFFIC9 MEMORANDUM
tc. Aurelio Perez Lugones February 4, 198
Legislative Coordinator DATE: FILE:
February 12th Commission
S"°�E`r: Agenda
`::
"Rom: M apt thew Schwartz REFERENCES:
Deputy Director
Department of Development ENCLOSURES:
Attached for insertion with the previously submitted agenda item
concerning the Land Disposition Agreement for CIRCA/Barness/Sawyer
is the Land Disposition Agreement prepared by the Law Department
which should be attached to the resolution.
Thank you for your cooperation.
MS/es
Attachment
SO=EAST OVERTOWN/PARK WEST
DISPOSITION AGREEMENT
for
BLOCK 55E
between
CIRCA/BARNESS/SAWYER
and
CITY OF MIAMI
DATED:
February 4, 1987
WrU l sl
EAU
STATEMENT OF BACEGROMM— AND PURPOSE 1
ARTICLE I - MMIHITS AND DEFINITIONS
Section 1.1. Exhibits ................................ 3
Section 1.2. Defined Terms...... 3
ARTICLE II - GENERAL TERMS OF LEASE OF LEASED PROPERTY
Section 2.1.
Lease of Leased Property to Developer...
it
a. Premises ...........................
11
b. Original Term .......................
11
o. Renewal Term .......................
12
d. Possession of Leased Property......
13
e. Conditions Precedent ...............
14
f. Developer Obligations Prior to
to Possession ......................
.16
Section 2.2.
Restrictive Covenants ...................
16
a. Use Prohibitions of the Leased
Property .........................
17
b. No Discrimination .. .... ..........
17
C. Permitted Uses for Leased
Property. ........... .....:....
17
d. Enforceability .....................
18
Section 2.3.
Easements ...............................
18
a. Existing Easements... .. .........
18
b. Easements Granted to Developer.....
18
c. Limitations on Easements Rights....
19
d. Duration of Easements ..............
20
e. Confirmatory Instruments...........
20
Section 2.4.
Title of Leased Property ................
21
Section 2.5.
Rental..................................
21
a. Rentals Payable ....................
21
b. Payment of Rental :.........:.......
21
c. Adjusted Annual Rental .............
22
d. Task of Appraisers .................
24*
e. Ad Valorem Taxation ..............
25
f. Additional Income..................
25
g. Developer's Records ................
25
Section 2.6.
Covenants for Payment of Public
Charges by Developer ..................
27
Section 2.7.
Approvals and Consents. .. ............
28
Section 2.8.
Security and Police Protection...........
29
Section 2.9.
Condition of Leased Property............
29
Section 2.10.
Roadways and Utilities ..................
29
(i)
l0
ARTICLE IIl - CONSTRUCTION OF IMPROVEMENTS
Section 3.1.
Section 3.2.
Section 3.3.
Section 3.4.
Section 3.5.
Section 3.6.
Section 3.7.
Section 3.8.
Section 3.9.
Section 3.10.
Section 3.11.
Section 3.12.
Section 3.13.
Section 3.14.
Conformity of Plans .....................
Preliminary Plans .......................
Construction Plans ......................
Facilities to be Constructed............
Maintenance of Leased Property..........
Access...... ..... ....................
Construction Period .....................
Progress of Construction. ...............
Certificate of Final Completion.........
Connection of Building to Utilities...:.
Permits and Approvals ...................
Compliance with Laws ....................
Extension of Time Requirements..........
Alterations and Renovations .............
ARTICLE IV - LAND USES
Section 4.1. Land Uses ................. .............
Section 4.2. Character and Operation of�
Improvements..........................
ARTICLE V - ANTI -SPECULATION; ASSIGNMENT
Section
5.1.
Definitions .............................
Section
5.2.
Purposes of Restrictions on
Transfer..............................
Section
5.3.
Transfers. ..... ... .... ...........
Section
5.4.-
Notice of Transfer, Information as
.. ......
to Shareholders.. ... �
Section
5.5.
Effectuation of Certain Permitted
Transfers.. ..... ...............
Section
5.6.
Transfers of the City's Interest........
Section
5.7.
Subletting ..............................
ARTICLE
VI -
MORTGAGE FINANCING; RIGHTS OF MORTGAGEE
Section 6.1. Leasehold Mortgage ......................
Section 6.2. No Waiver of Developer's Obligations
of City's Rights ......................
ARTICLE VII - REMEDIES
Section 7.1. Events of Default - Developer...........
a. Failure - Delayed Construction
Payment.of Money.. .............
b. Failure - Payment of.Money.........
c. Failure - Performance of'Other
Covenants, Etc* ...................
d*. Bankruptcy, Etc ....................
(ii)
30
32
35
35
33
36
36
37
38
38
39
40
40
41
42
42
43
44
45
4$
49
50
51
52
62
63
63
63
64
64
87-141 J..
Section
7.2.
Remedies for Developer's Default........
Section
7.3.
Events of Default - City ................
Section
7.4
Remedies for City's Default .............
Section
7.5.
Unavoidable Delay ........................
Section
7.6.
Obligations, Rights and Remedies
Cumulative ............................
ARTICLE VIII - PROTECTION AGAINST MECHANICS' LIENS
AND OTHER CLAIMS, INDEMNIFICATION
Section 8.1. Mechanics' Liens and Payments of.
Obligations. •••
a. Developer to Discharge Mechanics'
Liens......... .................
b. Payment of Materialmen and
Suppliers........................
Section 8.2. Indemnity ................................
ARTICLE IX - INSURANCE
Section 9.1.
Insurance Coverage ......................
a. Property Insurance .................
b. Rental Value Insurance .............
c. Automobile Liability Insurance.....
d. Liability Insurance ................
e. Worker's Compensation ..............
f. Copies. •......•••
Section 9.2.
Responsible Companies -Blanket
Insurance Permitted... ....... ......
Section 9.3.
Named Insureds - Notice to City of
Cancellation... . ......... ...........
Section 9.�4.
City May Procure Insurance if
Developer Fails To Do So ..............
Section 9.5.
Insurance Does Not Waive Developer's
....... .......
Obligations.. .. .. ��
Section 9.6.
Loss or Damage Not to Terminate
Rental or this Agreement ..............
Section 9.7.
Proof of Loss...... ..• .............•••
Section 9.8.
Property Insurance Proceeds .............
a. Authorized Payment .................
b. Disposition of Insurance Proceeds
for Reconstruction .. ....... ....
c. Lenders and Lender/Landlords May
Have Benefit of Insurance Fund
for Reconstruction ...............
Section 9.9.
Covenant for Commencement and
Completion of Reconstruction..........
(iv)
65
67
67
68
70
70
71
71
72
72
73
74
74
75
75
75
76
77
77
77
78
78
78
79
79
80
IL
8 I7:-IL41L *1
Section 9.10. Developer's Rights In the Event of
Uninsured Major Casualty ..............
ARTICLE X - CONDEMNATION
Section 10-.1. Entire.Leased Property Taken by
Condemnation ... ....... ..............
Section 10.2. Partial Taking of Leased Property
by Condemnation.. .........
Section 10.3. Adjustment of Rent Upon Partial
Taking. ...........
Section 10.4. Taking for Temporary Use or of
Leasehold Estate .......................
ARTICLE XI - RIGHTS OF OCCUPANCY AND ACCESS; MAINTENANCE;
OWNERSHIP OF IMPROVEMENTS
Section 11.1. Quiet Enjoyment .........................
Section 11.2. Waste....................................
Section 11.3. Maintenance and Operation of
Improvements.................. ........
Section 11.4. Ownership of Improvements During
Section 11.5. Surrender of Leased Property............
Section 11.6. City and Developer to Join in
Certain Actions .......................
ARTICLE XII - MISCELLANEOUS PROVISIONS
Section 12.1. No Partnership or Joint Venture.........
Section 12.2. Recording, Documentary Stamps...........
Section 12.3. Florida and Local Laws Prevail..........
Section 12.4. Conflicts of Interest; City Represen-
tatives Not Individually Liable.......
Section 12.5. Notice ..................................
a. Developer. ..... ................
b. Developer's Records........ '........
o. City Manager .......................
Section
12.6.
Estoppel Certificates.. ...........
Section
12.7.
Provisions Not Merged with Deed.........
Section
12.8.
Titles of Articles and Sections.........
Section
12.9.
Counterparts .... .. ......... .. .......
�
Section
12.10.
Non -Disturbance andAttornment..:... ...
Section
12.11.
Non -Discrimination and Equal Opportunity
Section
12.12.
Successors and Assign ...................
Section
12.13.
Exculpation ............:................
Section
12.14.
Entire Agreement.... ..... ..............
Section
12.15.
-Amendments............ ..................
(v)
83
84
86
86
88
88
88
88
89
th
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91
91
92
93
93
93
93
93
95
95
95
95
96
97
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97
•
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TABLE OF CONTEXTS
PACE
ARTICLE XIII ARBITRATION
Section 13.1. Panel.... .. ................... 98
Section 13.2. Actions, Hearings and Decisions......... 98
'PXhlhit A Survey and Plat Block 55
Exhibit Site Plan
Exhibit Q Legal Description Block 55
Exhibit 1) Form of Performance Bond
Exhibit List of Approved Concept Plans
Exhibit Development Schedule
Rrhiblt'G -- Hinorlty.Participation Agreement
'P,xhi*nit TT Maintenance Responsibility Site Plan
(vi)
Iq
87:-14JL 1
LEASE AGREEMENT
TRIS LEASE AGREEMENT, made this day of ,
19by and between Circa/Barness/Sawyer, a General Partnership
(hereinafter referred to as "the Developer"), and the City of
Miami, a municipal corporation of the State of Florida
(hereinafter referred to as "the City"), acting by and through
the City Manager (hereinafter referred to as "the City Manager"),
with the prior approval of the City Commission of Miami.
STATEMENT OF BACKGROUND AND PURPOSE
By authority of the City of Miami Charter, the City on
July 31, 1984 authorized the publication of a Request for
Proposals (RFP) for the unified development project to be known
as Southeast Overtown/Park west Redevelopment Project Phase I
Development.
In response, to the RFP, Developer submitted a proposal to
develop a mixed -use project- on Block 55 shown on the Survey and
Plat attached as Exhibit A.
The City is owner, in fee simple, subject to certain rights
of -others of the subject property and shall transfer, according
to a phased development plan, possession of said property to
Developer.
It is the mutual desire of the parties that the east half of
Block 55, generally shown on the site plan attached hereto as
Exhibit B, be leased and demised by the City to Developer for the
Phase I development for the purposes set forth in the request for
proposals advertised by the City and the proposal submitted by
-1-
/5
87r:L41L91.
Developer, subject to and upon the terms and conditions contained
herein. Said Phase I development shall consist of the following
Developer Improvements:
A. Rental Housing Units of which 124,000 square feet
shall be mid -rise units and 15,000 square feet
shall be low-rise units.
B. Commercial structures totaling 10,000 square feet
of space.
C. 180+ space parking garage.
D. Special purpose space totaling 20,000 square feet.
The Statement of Background and Purpose is a description of
the current intent of the parties with regard to development and
construction of the Project and is intended to be an aid to the
understanding of this Lease► but it is not intended to limit the
rights or the obligations of the parties except to the extent
that it contains definitions and terms which are used elsewhere
in this Lease. The square footages and descriptions in this
Statement of Background and Purpose are for illustrative purposes
only, and as to such matters the approved Construction Plans
prepared by the parties shall control. Certain terms defined in
the Statement of Background and Purpose are more particularly
defined in Section 1.2, to which reference is hereby made.
In consideration of the foregoing and of the rent,
covenants, and agreements hereinafter set forth, the parties do
hereby covenant and agree as follows:
-2-
8'7-1411
ARTICLE I
Section 1.1. ZXJ bi_tc. Attached hereto and forming a part
of this Agreement are the following Exhibits:
FY1,11,11- a -- Survey and Plat Block 55
Exhibit B -- Site Plan
Exhibit C -- Legal Description Block 55
Exhibit D -- Form of Performance Bond
Exhibit E -- List of Approved concept Plans
Exhibit F -- Development Schedule
zzh bj..T , -- Minority Participation Agreement
Exhibit g -- Maintenance Responsibility Site Plan
Section 1.2. Defined Terms. As used herein the term:
"Aeoegtable Operator" means any person, firm, corporation or
other entity possessing the experience, qualifications, good
reputation, financial resources and adequate personnel necessary
for the proper performance of all of Developer`s obligations
under this Lease in a manner consonant with the quality,
reputation and economic viability of the Project, including
(without limitation) the obligation of Annual Base Rental
theretofore payable by Developer under this Lease. Specifically,
an Acceptable Operator shall be selected based on the following
criteria:
1. The entity must presently own or manage at least
five hundred (500) rental housing units, of which
at least one hundred (100) must be 'in a single
project.
2. There must be no outstanding building code
violations against any' residential property owned
or managed by the City.
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3. There must be no discrimination complaints (with
respect to renting or employment practices) which
have ever been resolved against' the entity.
4. The entity must have been in the business of owning
or operating rental housing for at least three
years.
It is understood that any wholly owned subsidiary or any
affiliate of Developer and any other entity that meets all of the
criteria shall be automatically deemed an'Acceptable Operator.
However, fifteen (15) days prior to the Acceptable Operator
assuming Developer's obligations, Developer shall notify City in
writing of such assumption.
The qualifications of all other entities that do not
automatically qualify as an Acceptable Operator shall be
submitted in writing by Developer to the City Manager for his
review and approval. If no written response from the City
Manager is delivered to the Developer within fifteen (15) days
after the submission of such qualifications the proposed
Acceptable Operator shall be deemed approved.
OAccaDtablg oyerator Agreement" has the meaning ascribed to
it in Section 6.1(iv).
"Agce3;table Purchaser" has the meaning ascribed to it in
Section 5.3(d) and shall qualify on the same basis as on
"Acceptable Operator."
"Additional Rental" means any and all payments required of
Developer to the City by the terms of this Lease other than
Rental..
"This Adrp m n •" or this Lease", means this Lease Agreement,
as the same may be modified or amended from time to time.
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"Any Al Ba is_Rental" has the meaning ascribed to it in
subparagraph (i) of Section 2.5(a).
"Audited Financial Statement" means a Financial Statement
certified by the Auditor to have been prepared in accordance with
Generally Accepted Accounting Principles and Generally Accepted
Auditing Standards as promulgated by the American Institute of
Certified Public Accountants.
"Auditor" means a nationally recognized firm of certified
public accountants as may be used from time to time by the
Developer for the purpose of certifying the annual reports of its
financial condition required by law. Such firm of accountants
must be a member of the commonly called "Big Eight" group of
Accounting Firms.
"Cavital Improvement" means any addition to the Project"or
the construction of any additional portion of the Project or
other construction in, upon or constituting part of the Leased
Project occurring subsequent to the date on which the entire
Project is "open for business."
"Certificate _ of Final Comvi - ion" has the meaning ascribed
to it in Section 3.9.
"The City" has the meaning ascribed to it in the opening
paragraph of this Agreement.
"['_i_ty Maintenance Area" has the meaning ascribed to it in
Section 3.5.
"The City Manager" has the meaning ascribed to it in the
opening paragraph of this Agreement.
".om91etion Date" means that date on which the City Manager
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shall be required to issue the Certificate of Final Completion
pursuant to Section 3.9.
"condominium Owner" means any person, firm, corporation or
other legal entity using or occupying or entitled to use or
occupy the Developer Improvements upon purchasing a residential
unit.
"Construction Plans" has the meaning ascribed to it in
Section 3.3.
"nebt Service Paymen=11 means all principal and interest,
rental and other sums and amounts paid or payable for or during
the applicable or pertinent period or in connection with any
Leasehold Mortgage or any Sale-Subleaseback Transaction for the
Developer's estate in the Leased Property and Developer
Improvements and on borrowing to finance Capital Improvements;
provided, however, that in the event of a foreclosure of. any
Leasehold Mortgage or the conveyance of Developer's estate in the
• Leased Property and Developer Improvements to the holder of any
Leasehold Mortgage (or the nominee of any such holder) by deed in
lieu of foreclosure, or in the event of the termination of any
lease or sublease arising out of.a Sale-Subleaseback Transaction
for such estate, the term "Debt Service Payments" shall
thereafter include all principal and interest, rental and other
sums and amounts which would have become payable pursuant to or
in connection with such Leasehold Mortgage or Sale-Subleasback
Transaction but for such foreclosure, deed in lieu of foreclosure
or leasee termination.
"nefault Rate" has the meaning
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ascribed to it is
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subparagraph (b) of Section 2.5.
"DeveloFer" has the meaning ascribed to it in the opening
paragraph of this Agreement.
"DeveloDer lmDzovements" has the meaning ascribed to it in
in the statement of background and purpose.
"Developer Maintenance Area" has the meaning ascribed to it
in Section 3.5.
"DeveloSer Utility Easement" has the meaning ascribed to it
in the subparagraph W of Section 2.3(b).
"RrvirnTmental Laws" has the meaning ascribed to it in
Section 3.11.
"Events of the City's Default" has the meaning ascribed to
it in Section 7.3(a).
"$vents of Developer's Default" has the meaning ascribed to
it in Section 7.1(a)(b) and (c).
"Fair Market Value", means the price, as of the date in
question, which a seller, willing but not obligated to sell,
would accept for the City's reversionary interest in the Leased
Property and the Improvements or the Developer's estate in the
Leased Property and the Improvements (as the case may be), and
which a buyer, willing but not obligated to buy, would pay
therefore in an arm's length transaction.
"Final Substructure Plans" has the meaning ascribed -to it in
Section 3.3.
"Financing SubleaGe" has the meaning ascribed to it in the
definition of "Sale-Subleaseback Transaction."
"Tmvrovements" means all existing• and future structures at
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"Owner" has the meaning ascribed to'it in Section 5.1(b).
"Owner whose shares -are nubl cly__traded" has the meaning
ascribed to it in Section 5.1.
''Possession Date" has the meaning ascribed to it in Section
2.1(d).
"Pro,jgot" means the mixed use residential development with
supportive parking and recreational amenities to be located on
the Leased Property of the Southeast Overtown/Park West
Redevelopment Project.
"Public Charges" has the meaning ascribed to it in Section
"Reconstruction Work" has the meaning ascribed to it in
subparagrapk (b) of Section 9.8.
"Renewal Term" has the meaning ascribed to it in
subparagraph (a) of Section 2.1.
"Rent Commeneement Date" means the date described as '.Rent
Commencement Date", subject to extensions or adjustments thereto
for a period equal to any delay in the occurrence in the
Completion Date due to Unavoidable Delays, as defined in Section
7.4.
"Rental" has the meaning ascribed to it in subparagraph (a)
Section 2.5.
"Rental Year" means a calendar year consisting of twelve
(12) consecutive calendar months beginning on January 1 and
ending, on December 31 of each year of this Lease. The first
Rental Year during the term of this Lease shall commence on the
Possession Date and -end on December 31st of the same calendar
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year in which the Possession Date occurs, and the Rental shall be
apportioned theref or. Any portion of the term remaining of ter
the end of the last full Rental Year constitutes the final Rental
Year, and Rental shall be apportioned therefor.
"Sal e-Subleaseback Transaction" means Developer's sale to a
Leader/Landord of all or a substantial portion of Developer's
interest in this Lease, and the subsequent execution of a
sublease ("Financing Sublease") between Lender/Landord and
Developer.
"Section", "SubSECtion", "paragraph", "muboaragh",
or "c1,hr+1aticA" followed by a number or letter means the
section, subsection, paragraph, subparagraph, clause or subclause
of this Agreement so designated.
"Sou haast Overtown/Park_West RedevelnDment Project Phase I
IIevelo;ment" (hereinafter referred. to as SEOPW) has the meaning
ascribed to it in the statement of Background and Purpose.
"S»ham" means any lease, sublease, license or other
agreement by which Developer or any person or other entity
claiming under Developer (including, without limitation, a
subtenant or sublicensee) demises, leases, subleases, licenses or
sublicenses to or permits the use or occupancy by another person
or entity of any part of the Leased Property and Developer
Improvements.
"Sbttanant" means any person, firm, corporation or other
legal entity using or occupying or entitled to use or occupy any
part of the Leased Property or the Improvements under a Sublease.
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ARTICLE It
Section 2.1. Te se of Leased Prcmerty to Develop.
Subject to the conditions set forth in this Agreement, to the
payment of rental provided herein, and the performance of the
parties hereto of the duties and obligations on the part of each
to be performed hereunder:
(a) Premises. The City demises and leases to Developer,
and Developer takes and hires from the City, the east half of the
area described as Block 55 on Exhibit A and more particularly
described in the legal descriptions attached hereto as Exhibit C.
and subject to the restrictions, conditions, covenants and
easements hereinafter mentioned, reserved or granted (the "Leased
Property"). Upon the execution Qf the Lease, City shall transfer
to Developer the east half of Block 55 for the construction of
Phase I of the Developer Improvements.
New structures shall be limited to a maximum of 40%
commercial usage of usable square footage. Commercial structures
in Phase I of the Leased Property shall not exceed a total of
10,000 square feet of Leaseable Area.
(b) Original Term. To have and to hold the Leased Property
for a term of fifty (50) years, commencing on the first day of
the month next following the Possession Date of the Leased
Property. Within thirty (30) days after the Possession Date, the
City Manager and Developer, upon request of either party, shall
execute one or more written memoranda in such form as will enable
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them to be recorded among the Land Records of Dade County setting
forth the beginning and termination dates of the Original Term,
determined in accordance with this Agreement.
(a) Renewal Term. Developer its successors or assigns is
granted an option to renew this Lease from time to time upon the
same terms and conditions, except as otherwise expressly
provided, for up to two (2) additional terms (each called a
"Renewal 'berm") of twenty five (25)• and twenty four (24) years
each respectively, commencing at the expiration of the Original
Term or the previous Renewal Term, as the case may be, and
termination on the twenty fifth (25th) and twenty fourth (24th),
anniversary respectively, of such expiration, by giving the City
express written notice of a Renewal not less than twenty four
(24) months before the date on which such renewal term is to
commence. At the City's option, such renewal request shall not
be granted if either of the following occurs:
. (i) within five (5) years of the expiration of the
Original Term or the immediately preceding Renewal Term, as the
case may be, on event of Developer's Default shall have occurred
and continued for one hundred eighty (180) days prior to the
commencement of a Renewal Term; or
(ii) at the time of the renewal more than forty percent
(40%) of the'Leasable Area has been converted to nonresidential
usages regardless of any prior City approvals, consents or
inactions:
The City Manager and Developer, upon request of either
party shall execute one or more written memoranda in such form as
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will enable them to be recorded among the Land Records of Dade
County setting forth the beginning and termination dates of the
Renewal Term, determined in accordance with this Agreement.
(d) Possession of Leased _Proa r •v. The City shall deliver
possession of Leased Property as described in Section 2.1 to
Developer, and Developer shall take immediate possession thereof
if the following shall have occurred:
(i) The City Manager shall have approved the
Preliminary Plans and Final Substructure Plans for the Developer
Improvements to be constructed on the Leased Property, as
provided in Section 3.2 and 3.3;
(ii) The City Manager shall have received and approved
the commitment or commitments for the construction and permanent
financing of the Developer Improvements to be constructed at the
Leased Property, or such other evidence as may be reasonably
satisfactory to the City Manager that such financing has been -
committed or is available which approval shall not be
unreasonably withheld. The City Manager must approve such
financing if same is on terms prevailing in the then current
market place in the United States. Developer may, at its option,
self -finance all or a portion of the Developer Improvements
provided, however, that Developer must demonstrate the
availability of funds to complete the project or phase;
(iii) The City Manager shall have received a one
hundred thousand dollar ($100,000) Performance Bona or a Letter
of Credit as a mean of insuring the prompt and faithful
performance and observance by Developer of all of its obligations
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hereunder with respect to the construction and completion of the
Developer Improvements to be constructed on the Leased Property.
A form of the Performance Bond is attached hereto as Exhibit D;
(iv) All governmental permits and approvals required
to commence construction shall have been obtained by Developer;
(v) The subcontractors for phase I of the project
shall have been selected and Developer has clearly demonstrated
that diligent good faith efforts were put forth to meet the goals
established for minority contractors' participation in the
Project.
(vi) The date that the City delivers possession of the
Leased Property to Developer in accordance with this paragraph
(d), by notice in writing, is herein called "Possession Date".
. (e) Conditions Precedent. Developer shall not be obligated
to take possession of the Leased Property or to perform any other
obligations under this Lease unless and until the fallowing shall
have occurred or have been obtained:
(i) the City Manager has.approved all the.Construction
Plans for the Developer Improvements; and
(ii) Developer has obtained all governmental approvals
and permits necessary for construction of the Developer
Improvements; and
(iii) Developer shall have obtained a commitment or
commitments, on terms and in a form satisfactory to Developer,
from Institutional Investors or Lender/Landlords for construction
and long term financing of the Developer Improvements; and
(iv) Developer shall be satisfied that the development
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Of the Project will not violate the Environmental Laws
(hereinafter defined). -
(v) City will construct or cause to be constructed
certain landscape improvements in the public right of way in
accordance with plans provided to Developer. Said improvements
are to be completed prior to Phase I completion.
Developer and the City shall use good faith efforts to
satisfy all of the aforesaid conditions precedent. it is
recognized by the parties thereto that it is not the intention of
either party to encumber the Leased Property with this Lease for
an indefinite period of time during the period of satisfaction of
the aforesaid conditions precedent and that therefore either
party shall have the right to terminate this Lease if all of the
aforesaid conditions precedent are not satisfied or waived as per
the Development Schedule attached hereto as Exhibit F days after
approval of this Agreement.
No waiver of•any of the foregoing conditions precedent shall
be implied by any conduct of Developer, including (without
limitation) any election by Developer to proceed with any
development activity prior to the satisfaction of all of such
condition precedent, it being agreed that any waiver by Developer
of any such condition precedent shall be affected only by
Developer's express written statement to that effect delivered to
the City or the City Manager.
No -waiver of any of the foregoing conditions precedent shall
be implied by any conduct of the City, it being agreed that any
waiver'by City of any such condition precedent shall be effected
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only by City's express written statement to that effect delivered
to Developer.
(f) Developer Obligations Prior to Possession.
Notwithstanding anything herein to the -contrary, until possession
of the Leased Property shall have been delivered to Developer
pursuant to the provisions of clause (f) of this Section 2.1,
Developer shall not be required to perform any of its obligations
hereunder with respect to any portion of the Leased Property as
to which possession shall not have been so delivered to the
extent that such possession shall be reasonably required for the
performance of.such obligation.
Section 2.2. Restrictive Covenants. The restrictive
covenants contained in paragraphs (a) through (c) of this Section
2.2 are intended and designed to bind the Developer and the City
and their respective successors and assigns and bind upori•and run
with the Leased Property throughout the entire term of this
Lease, including any Renewal Term and any new. lease executed
pursuant to the provisions of Sections 6.1 and 6.2. The parties
recognize, however, that the development and operation of the
Leased Property and the Developer Improvements in a manner which
is in the best interests of both parties may from time to time
require the confirmation, clarification, amplification, or
elaboration of this Agreement in order to' deal adequately with
circumstances which may not now be foreseen or anticipated by the
parties. The parties reserve t.nto themselves the right to enter
into such interpretive, implementing or confirmatory agreements
from time -to time as they may deem necessary or desirable for any
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such purpose without obtaining the consent or approval of any
person or entity not a party to this Agreement except as may be
expressly otherwise provided in this Lease or by law.
(a) Use Prnhibi ti_ors of the L _Acpd prom;+. The Leased
Property hereby demised shall not be used for the following:
(i) Coinbox entertainment (pinball, video games,
moving pictures operated by coins); or
(ii) Any unlawful or illegal business, use or purpose,
or for any business, use or purpose which is immoral or
disreputable (including without limitation "adult entertainment
establishments" and "adult" bookstores) or extra -hazardous, or in
such manner as to constitute a nuisance of any kind (public or
private), or for any purpose or in any way in violation of the
certificates of. occupancy (or other similar approvals *of
applicable governmental authorities).
(b) No Disortmtnation. No covenant, agreement, lease,
conveyance or other instrument. shall be effected. or executed by
Developer, or any of its successors or assigns,• whereby the
Leased Property or any portion thereof is restricted by
Developer, or any successor in interest, upon the basis of race,
color, religion, sex or national origin *in the sale, lease, use
or occupancy thereof. Developer will comply with all applicable
state and local laws, in effect from time to time, prohibiting
discrimination or segregation by reason of race, color, religion,
sex, or national origin in the sale, lease or occupancy of the
Leased Property.
(a) Permitted Uses for Leased Property. The only uses
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permitted on the Leased Property are residential, supporting
commercial and general commercial as limited by Section 2.1(a)
with fifteen percent (15%) of the residential structures priced
to be affordable to families whose -income is eighty percent (80%)
or less to one hundred and twenty percent (120%) of median
income.
(d) Enforceability. It is intended and agreed hereby that
the restrictive covenants contained in this Section 2.2 shall be
binding upon the City and the Developer, their successors and
assigns, and any covenants running with the Land and successors
in interest, as the case may be, and shall be for the benefit and
in favor of, and enforceable by the City and Developer
respectively, as the case may be; provided, however, that such
covenants shall be binding on Developer, and the City, and their
respective successors in interest and assigns, only for such
period as each shall haver (i) fee title to the Leased Property,
as to the City, and (ii) the leasehold estate herein demised to
Developer, as to Developer.
Section 2.3. Easements. The following easements presently
exist or are hereby granted.
(a) Existing Easements_ There are no existing easements on
the Leased Property.
(b) Easements Granted to neyelnrar, The City grants unto
Developer, its successors and assigns the following:
(i) the non-exclusive right and easement (the
"Developer Utility Easement") to install, maintain, repair and
replace utility- facilities such as water, gas, electric, and
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telephone lines and storm and sanitary sewers underground within
Portions of the teased Property, and any other property owned by
the City which is not a dedicated street, in the location shown
therefore on the approved Construction Plans or in such other
locations as may be approved by the City Manager from time to
time;
(U) the non-exclusive rights and easement (the
"Developer Vehicular Access Easement") for the unobstructed
access by service and emergency vehicles to and from the Leased
Property, or such other locations as may be approved by the City
Manager from time to time;
(iii) the non-exclusive rights and easements for
installation, maintenance, repair and replacement of utility
facilities and for pedestrian and vehicular access to and from
the Leased property, at such locations as may be.approved by the
City Manager from time to time; and
It is the intent of this Agreement that the Developer
Improvements be confined to the limits of the Leased property.
(0) The rights and
easements granted or reserved in paragraphs (a) and (b) of this
Section 2.3 shall be limited as follows:
(1) The party having the benefit of any such easements
(A) shall carry on any construction, maintenance or repair
activity with diligence and dispatch and shall use its diligent
efforts to complete the same in the shortest time possible under
the circumstances, and (8) shall not carry on any construction,
maintenance or repair activity in the easement area in such
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manner as to unreasonably interfere with the use and enjoyment of
the servient tenement, in carrying on such activities, will do so
in such a manner as not to unreasonably interfere with business
or businesses then being conducted in the Developer Improvements
or on the Leased Property by Developer or its Subtenants or
Condominium Owners.
(2) Except in the event of emergency, the party having
the benefit of such easement shall not carry on any construction,
replacement, maintenance or repair activity at any time in such
easement area unless notifying such party- of its intention to do
SO.
(3) Promptly upon the completion of any such
construction, repair or maintenance activity, the party having
the benefit of such easement shall, at its expense, restore the
surface of the easement area as nearly as possible to its former
condition and appearance.
(d) Duration of Easements. Unless a shorter term is
provided, each of the rights and easements granted or reserved in
paragraphs (a) and (b) of this Section 2.3 shall be for the
Original Term of this Lease, for each Renewal Term, and for the
term of any new lease made pursuant to the provisions of Sections
6.1 and 6.2.
(e) Confirmatory, Instruments. Each party covenants and
agrees that from time to time at the request of the other party,
it shall execute and deliver such additional documents or
instruments confirming the rights and easements granted and
reserved in this Section 2.3 or more precisely. f ixing their
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location as such requesting party shall deem to be necessary or
desirable. The City Manager is hereby authorized and empowered
on behalf of the City to execute and deliver, from time to time,
any such confirmatory documents -or instruments.
Section 2.4. Title of Leased Property. The City
represents, covenants and warrants that it has good and
marketable fee simple title to the Leased Property and all of the
improvements thereon, which title is free and clear from all
covenants, easements, liens, clouds of title on other
restrictions except for those listed in Exhibit D.
Section 2.5. Rental.
(a) Rentals Payable. Developer covenants and agrees to pay
the City during the Lease term, as rental ("Rental") for the
Leased Property, an Annual Basic Rental equal to $0.00 for the
first two Rental Years and until adjusted in accordance with
Section 2.5(c) the greater of the following, as applicable:
(i) (a) For Rental Years 3 - 5: ten cents ($.10) per
gross square foot of all rental development (commercial and
residential);
(b) For Rental Years 6 - 99: three percent (3%)
of the available gross income from all rental development. Plus
.3% of the sales price of sold condominium units for their first
5 years of ownership, and thereafter .3% of their assessed value;
or
(ii) The minimum Annual Basic Rental for each Rental
Year, 3-99, nine thousand dollars ($9,000.00).
(b) Payment of • Rental . Annual Basic Rental shall commence
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to accrue on the Rent Commencement Date. Annual Basic Rental
shall be paid annually in arrears commencing on the second day of
January in the year succeeding the end of the first Rental Year
and shall be paid to the City at the Office of the Director of
Finance, 3500 Pan American Drive, Miami, Florida 33133 or at such
other place as the City Manager shall designate from time to time
in a notice given pursuant to the provisions of Section 12.5.
Any late payment shall automatically accrue interest at a rate
equal to two (2) percent above that rate charged by the Citibank,
N.A. of New York to its best commercial customers, generally
referred to as its prime rate ("Default Rate") from the date that
payment was due until paid. Any overpayment of Annual Basic
Rental at the end of •each Rental Year shall be paid to Developer
within thirty. (30) days of receipt of the Audited Financial
Statement or, at the option of Developer, the Developer shall be
credited with such amount -to the Annual Basic Rental due in the
next accruing Rental Year. If there is an under payment of.
Annual Basic Rental,. Developer shall pay the City. the amount of
the deficiency within thirty (30) days of the City's receipt of
the Audited Financial Statement.
(c) Adjusted Annual Rental. At the termination dates of
the Original Term and the first Renewal Term ("Adjustment Dates")
the Annual Rental shall be adjusted as set forth in this Section
2.5(c) (the "Adjusted Annual Rental"), which shall continue to be
paid as set forth in Section 2.5(b) herein. The Adjusted Annual
Rental shall be determined by competent. and disinterested MAI
certified (or substantially equivalent licensed appraisers if MAI
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certified appraisers no longer exist), one of whom shall be
selected and paid for by the City and one selected and paid by
the Developer such selection to occur no later than one hundred
eighty (180) days prior to any Adjustment Date. If the Adjusted
Annual Rental as determined by each of the foregoing appraisers
differs by five (5) percent or less, then the average of the two
Adjusted Annual Rental appraisals shall be utilized. In the
event the two Adjusted Annual Rental appraisals differ by greater
than five (5) percent, the two appraisers so selected shall
select a third appraiser not later than one hundred twenty (120)
days prior to any Adjustment Date, the expense to be born equally
by the City and the Developer, 'and the three appraisers so
selected shall determine not later than ninety (90) days prior
to any Adjustment Date the Adjusted Annual Rental to be paid by
the Developer for the ensuing Rental Years. In the event that
either the City or the Developer shall fail to appoint an
appraiser prior to one hundred eighty (180)•.days before any
Adjustment Date, or in the event the first two appraisers shall
fail to select a third appraiser within thirty (30) days after
they have been selected, then the appraiser in question shall be
appointed not later than one hundred (100) days prior to any
Adjustment Date by the Senior Judge (in length of service) of the.
United States District Court for the Southern Judicial District
of Florida (acting in the judge's discretionary and not judicial
capacity), on request of either party or of either of the first
two appraisers, as the case may be. It is the purpose of this
Section 2.5 to have the Adjusted Annual Rental determined not
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later than ninety (90) days prior to any Adjustment Date. In the
event the Adjusted Annual Rental is not so determined by the
Adjustment Date, the Annual Rentals shall continue at the Annual
Rental for the immediately preceding period until a determination
of the fair rental value of the Leased Property is made pursuant
to Section 2.5(d) hereof; however, once the Adjusted Annual
Rental determination is made, the difference between the amount
of the newly determined Adjusted Annual Rental. and the amount of
the Annual Rental actually paid for the period of time from the
last Adjustment Date to the time such determination is made shall
become Additional Rent which shall be paid within thirty (30)
days of such determination and notice of such determination. In
no event shall the Annual Rentals for any period during the
Rental Year be less than the Annual Rentals actually paid for the
immediately preceding period. Notwithstanding the foregoing
provisions in this Section 2.5(c), the City Manager and the
Developer may mutually agree tj an Adjusted Annual Rental that is
less than the Adjusted Annual Rental so determined by the
appraisal process set forth in Section 2.5(c and d) herein.
(d) Tack of Aj2nraisars. The appraisers when selected shall
be instructed that they are to determine the fair rental value of
the Leased Property herein demised based on it's highest and best
use at such time. The Adjusted Annual Rental appraisal shall be
in writing and copies thereof shall -be given to the City and the
Developer ninety (90) days prior to the next ensuing Adjustment
Date. The amount of the Adjusted Annual Rental shall be the
Adjusted Annual Rental for the remainder of the Rental Year,
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payable monthly in advance, until the occurrence of the next
Adjustment Date (the "Annual Rental" and the. "Adjusted Annual
Rental" shall be collectively referred to as "Annual Rentals").
(e) Ad Valorem Taxatinn. In the event there is a legal
determination made by a court of competent jurisdiction that the
Leased Property is to be subject to ad valorem taxation then such
taxes shall be paid by the Developer when due and payable. The
City covenants to•join with the Developer as a co -party to oppose
the imposition of such ad valorem taxation by any governmental
entity.
The City may elect
to retain
its
own
counsel in
which
event it
shall bear its own
counsel
fees;
the
Developer
shall
bear all other costs and fees of Developer and City in contesting
the imposition of ad valorem taxation hereunder.
(f) Additional Income. In the event the Developer
Improvements (either the residential or commercial structures)
are converted to condominiums and sold by Developer, City shall
receive fiva percent (5%) of the gross sales price of each unit
sold and conveyed. The City intends to use the income received
to establish a loan program for condominium owners. As security
for said loans, City shall be given a second mortgage on the
condominiums. All loan repayments shall be revenue to the City.
(g) Develorer's Reenrds. For the purpose of permitting
verification by the City of any amounts due on account of Annual
Basic Rental, Developer will keep and preserve for at least three
(3) years in Dade, County, Florida, at the address specified in
Section'12.5, auditable original or duplicate books and records
for the Project which shall disclose all information required to
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87-141 *1
determine Annual Basic Rental, and other information necessary to
comply with the terms of this Agreement. After seven (7) days
advance notice to Developer, the City through its City Manager or
his designee, shall have the right during business hours to
inspect such books and records and make any examination or audit
thereof which the City may desire. If such audit shall disclose
a liability for Rental in excess of the Rental theretofore paid
by Developer for the period in question, Developer shall promptly
pay such additional Rental and if such audit shall disclose an
overpayment of the Rental theretofore paid, the City shall
promptly return the excess to the Developer.
Developer further covenants and agrees to deliver to the
City commencing- as of the Rent Commencement Date within sixty
(60) days after the close of each Rental Year and after the
termination of the Lease, a statement showing, in reasonable
detail, the computation of the Annual Basic Rental for the
preceding Rental Year. The annual statement shall be signed and -
verified by an appropriate, authorized officer or General Partner
of Developer stating specifically that such officer has examined
the report, that such officer's examination included such tests
of Developer's books and records as such officer considered
necessary under the circumstances, and that such report presents
fairly the Rental due with respect to the preceding calendar
quarter. If Developer shall fail to deliver the foregoing
statement to the City within said period, the City shall have the
right to either conduct an audit itself or to employ an
independent certified public accountant to examine such books and
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87-141.1
determine Annual Basic Rental, and other information necessary to
comply with the terms of this Agreement. After seven (7) days
advance notice to Developer, the City through its City Manager or
his designee, shall have the right during business hours to
inspect such books and records and make any examination or audit
thereof which the City may desire. If such audit shall disclose
a liability for Rental in excess of the Rental theretofore paid
by Developer for the period in question, Developer shall promptly
pay such additional Rental and if such audit shall disclose an
overpayment of the Rental theretofore paid, the City shall
promptly return the excess to the Developer.
Developer further covenants and agrees to deliver to the
City commencing• as of the Rent Commencement Date within sixty
(60) days after the close of each Rental Year and after the
termination of the Lease, a statement showing, in reasonable
detail, the computation of the Annual Basic Rental for the
preceding Rental Year. The annual statement shall be signed and.
verified by an appropriate, authorized officer or General Partner
of Developer stating specifically that such officer has examined
the report, that such officer's examination included such tests
of Developer's books and records as such officer considered
necessary under the circumstances, and that such report presents
fairly the Rental due with respect to the preceding calendar
quarter. If Developer shall fail to deliver the foregoing
statement to the City within said period, the City shall have the
right to either conduct an audit itself or to employ an
independent certified public accountant to examine such books and
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87.-141.1
records as may be necessary to certify the amount of the Rentals
due with respect to. such Rental Year. Developer shall promptly
pay to the City, as Additional Rental, the cost of any audit
performed by or for the City, in the event the City's audit was
in lieu of an annual report by Developer or if the City audits
the annual report at its .own initiative and demonstrates a
discrepancy of more than three percent (3%) in the amount of
Annual Basic Rentals due to the City.
Developer shall provide the City with an annual Audited
Financial Statement, certified by an independent Certified Public
Accountant, within sixty (60) days after the close of each Rental
Year which shall be subject to the audit provisions of the
previous subparagraph.
Section 2.6. Covenants for Payment of Public Charges by
Develop er. Developer, in addition to the Rental, covenants and
agrees to pay and discharge, before any fine, penalty, interest .
or cost may be added, all real and personal. property taxes, all
ad valorem real property taxes,. all taxes on rentals payable
hereunder and under subleases, public assessments and other
public charges including but not limited to electric, water and
sewer rents, rates and charges (all such taxes, public
assessments and other public charges being hereinafter referred
to*as "Public Charges") levied, assessed or imposed by any public
authority against the Leased Property, including all improvements
thereon in the same manner and to the same extent as if the same,
together with all improvements thereon, were owned in fee simple
by Deveioper; pravided, that Developer's obligation to pay and
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discharge Public Charges levied, assessed or imposed against or
with respect to Leased Property shall not commence until the
Possession Date. Notwithstanding the provisions of this Section
2.6, Developer shall have the right to contest the amount or
validity, in whole or in part, of any Public Charges by
appropriate proceedings. The City agrees to consent to and/or
formally join in any such proceedings to the extent' it maybe
allowed by law, if such consent and/or joiner be required by law
for the prosecution thereof. Developer shall pay all charges for
metered water, sewer service charges and other fees or charges
lawfully imposed by any .public authority upon or in connection
with the Leased Property. The City agrees that it will not
impose'any special assessment or other Public Charges (other than
as valorem real property taxes) against the Leased Property or
the Developer Improvements. with respect to the construction,
operation, repair and maintenance of any improvements the City is
obligated to construct pursuant to this Lease. The City retains
all its rights to impose special assessments or other public
charges for all other purposes.
Developer, upon written request, shall furnish or cause to
be furnished, to the City Manager, official receipts of the
appropriate taxing authority, or other proof satisfactory to the
City Manager evidencing the payment of any Public Charges, which
were delinquent or payable with penalty thirty (30) days or more
prior to the date of such request.
Section 2.7. Artirovals and Consents. Wherever in this
Lease the approval or consent of any party is required, it is
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G
understood and agreed that such approval or consent will not be
unreasonably withheld or delayed.
Section 2.8. SeQuXity and Police Prdteotion. Developer
shall have the responsibility for providing all security and
protection for the Leased Property and Future Leased Property.
The City shall provide the. same security and police
protection in the Leased Property and Future Leased Property as.
is afforded all other City' areas .
Section 2.9. Condition on of Leased ProFertl. On the
Possession Date the City shall deliver to the Developer
possession of the Leased Property free of any and all tenancies
or other rights or claims of rights to its use and occupancy.
Prior to each Possession Date, the Leased Property shall be
maintained by the City and delivered to Developer as cleared
land, with no representations made as to subsurface conditions.
The City agrees not to adversely or materially alter the Leased
Property prior to the Possession Date without Developer's grior
written approval. The City shall perform at its sole expense,
all necessary relocation, demolition, and clearance with respect
to the Leased Property prior to the Possession Date.
Section 2.10. $oadwa2s and Utilities. The City shall
without expense to Developer or public assessment against the
Leased Property, provide for the abandonment of all public
streets and rights of way within the Leased Property. The City
shall cooperate with and assist the Developer in the termination
or transfer to the Developer, of all existing easement rights
.with respect to water mains, sanitary sewers, storm- drains,
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conduits, gas and electric or steam distribution lines and fire
alarm, traffic and phone systems, if any, in the Leased Property,
except for*the County Easement and the City Storm Water Easement,
and the transfer to Developer of all vacated City streets. The
City shall also transfer to Developer all easements and rights of
way at the Leased Property within its control. All termination,
abandonment, transfer and relocation, as applicable, to be done
shall be done or performed in accordance with provisions. of this
Section 2.10 with respect to the Leased Property as rapidly as.
practicable and in a manner which will coordinate in a reasonable
manner with construction of the Improvements.
ARTICLE III
CONSTRUCTION OF IMPROVEMENTS
Section 3.1. Conformity of Plans. Preliminary Plans and
Construction Plans and all work by Developer with respect to the
Leased Property and the construction of. Developer Improvements
thereon shall be in conformity with this Agreement, the Miami
Charter and Code, the South Florida Building Code, and all other
applicable state, county and.lodal laws and regulations.
Section 3.2. Preliminary Plans. The City acknowledges that
prior to the execution of this Lease, Developer has submitted to
the City and the City has approved the concept- plans (the
"Concept Plans") for the construction of the Developer
Improvements, a list of which is attached hereto as Exhibit E.
Developer shall submit to the City Manager at the times
hereinafter set forth, two sets of plans (the "Preliminary
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8'7r141 A
Plans"). For the purpose of this Lease, "Preliminary Plans"
Shall' consist of site plans and structure elevations and
sufficient detail to show'site planning, architectural design and
layout, materials, building construction, landscaped design,
access, streets, and sidewalks. The City acknowledges that, in
order to meet the phased schedule for construction, the Developer
shall be submitting Preliminary Plans in stages for approval.
The City shall not be required to issue permits or other formal
governmental approvals to Developer for a particular stage until
the City Manager has approved a Site Drawing depicting all stages
of a particular .phase of the Developer Improvements and has
approved the Preliminary Plans for the particular stage for which
a permit or other formal governmental approval is requested.
The Preliminary Plans for all stages of the Developer
Improvements to be constructed shall be submitted to the City
Manager on the date set forth on Exhibit F. Upon receipt of each
set of Preliminary .Plans representing a certain stage of
construction, the City Manager shall review the same and shall
promptly (but in any event within fifteen (15) days after such
receipt), give Developer notice of its approval or disapproval
setting forth in detail its reasons for any disapproval. The
City Manager's right to disapprove the Preliminary Plans
submitted shall be limited to matters depicted in the Preliminary
Plans for Developer Improvements which do not conform
substantially to the Concept Plans or previously approved
Preliminary Plans for other stages of the Project or are new
elements not presented in the Concept Plans, or matters which are
• =31-
violations of this Lease or of applicable governmental
ordinances, codes, plans, laws or regulations.
If no response from the City is delivered to Developer
within fifteen (15) days after the submission of such Preliminary
Plans, or any resubmission thereof as hereinafter provided, they
shall be deemed approved, except that no violations of applicable
governmental ordinances, codes, plans, laws, regulations or of
this Agreement shall be deemed waived thereby. In the event of a
disapproval, Developer shall, within fifteen (15) days after the
date Developer. receives the notice of such disapproval, resubmit
.such Preliminary Plans to the City Manager, altered to meet the
grounds of disapproval. Any resubmission shall be subject to
review and approval by the City Manager. In accordance with the
procedure hereinabove provided for an original submission, until
the same shall be approved by the City Manager, provided that in
any event Developer shall submit all Preliminary Plans for the "
construction of Developer Improvements which meet all of the
grounds for disapproval of which the City Manager has given
notice not later than the first anniversary of the date of this
Lease. City and Developer shall in good faith attempt to resolve
any disputes concerning the Preliminary Plans.
Section 3.3. Construction Plans. For the purpose of this
Lease, "Construction Plans" shall consist of final working
drawings and specifications including (without limitation) the
following information, (a) definitive architectural drawings; (b)
definitive foundation and structural drawings (the "Final
Substructure Plans"), (c) definitive electrical and mechanical
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Wr1,414L
drawings including (without limitation) .plans for - all lighting
facilities affecting the exterior appearance of the Developer
Improvements; and (d) Final specifications, but excluding
drawings and specifications relating to subtenant improvements.
Not later than ninety (90) days after approval of Preliminary
Plans for a particular stage of construction, Developer shall
submit to the City Manager two sets of Construction Plans for the
same stage. Upon receipt thereof, the City Manager shall review
the same and shall promptly (but in any event within ten (10)
days after such receipt), give Developer notice of its approval
or disapproval, setting forth in detail its reasons for any
disapproval. The City Manager's right to disapprove the
Construction Plans submitted shall be Limited to matters depicted
in the Construction Plans which do not conform substantially to
the approved Preliminary Plans or previously approved
Construction plans for other stages or are new elements not
presented in the approved Preliminary Plans or are violations of
this Lease or of governmental ordinances, codes, plans or
regulations. If no response from the City is delivered to
Developer within ten (10) days after the submission of such
Construction Plans, or any resubmission thereof as hereinafter
provided, they shall be deemed approved except that no violations
of applicable laws, ordinances, codes, regulations or of this
Agreement shall be deemed waived thereby. In the event of a
disapproval, Developer shall, within thirty (30) days after the
date Developer received the notice of such disapproval, resubmit
the Construction Plans for that stage to the City Manager,
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877-4JL of
altered to meet the grounds• of disapproval. Any resubmission
shall be subject to review and approval by the City Manager, in
accordance with the procedure hereinabove provided for an
original submission, until the same shall be approved by the City
Manager, provided, that in any event Developer shall submit all
Construction Plans for the construction of Developer•Improvements
which meet all of the grounds for disapproval of which the City
Manager has given notice not later than six (6) months after
approval of all of the Preliminary Plans. The City and the
Developer shall in good faith attempt to resolve any disputes
regarding the Construction Plans. No approval by the City
Manager of any Construction Plans or Preliminary Plans pursuant
to this Article shall relieve Developer of any obligation it may
have at law to file such Construction Plans with any department -
of the City or any other governmental authority having
jurisdiction over the issues or to obtain any building or other
permit or approval required by law.
Developer acknowledges that any approval given by City
Manager pursuant to this Article III shall not constitute an
opinion or agreement by the City that the plans are structurally
sufficient or in compliance with any laws, codes or other
applicable regulations, and. no such approval shall impose any
liability on or waive any rights of the City.
Developer agrees that it shall provide the City with copies
of all plans and specifications used in the construction of the
Developer Improvements. Developer agrees to use its diligent
efforts to obtain the consent of the Leasehold Mortgagee to the
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vesting in the City of, all* rights, title and interest in the
plans and specifications if this Lease is terminated by reason of
an Event of Developer Default.
Section 3.4. Facilities to be Constructed. Developer
agrees to erect the Project on the Leased Property, at its sole
cost and expense, containing the facilities more particularly
described in the Construction Plans which shall conform to the
covenants contained in Section 2.2 and which are referred to
throughout this Lease as "Developer Improvements".
Section 3.5. Maintenance of Leased Proa rtg. The City
without cost or expense to Developer or public assessments
against the Leased Property or the Improvements, at all times
during the term of this Lease, (including any Renewal Term and
any new lease executed pursuant to the provisions of Sections 6.1
and 6.2) shall maintain and keep or cause to be maintained and
kept in good order, repair and appearance, commensurate with the
quality of maintenance found in the. area shown and designated as
"Developer Maintenance Area"• on Exhibit H all of the property and
improvements including, without limitation those portions of the
Leased Property shown and. designated as "City Maintenance Area"
on Exhibit H. If the City fails to maintain -the "City
Maintenance Area" as required by this Lease, Developer may
provide such maintenance after giving City written notice of its
intent to do so. Developer shall be given credit towards the
next accruing Annual Basic Rental payments and Additional Rental
Payments equal to the amount of the actual cost Developer
expended for the maintenance.
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EMW
The Developer, without cost or expense to the City, at all
times during the term of this Lease, (including any Renewal Term
and any new lease executed pursuant to the provisions of Sections
6.1 and 6.2) shall maintain and keep or cause to be maintained
and kept in good order, repair and appearance all of the property
and improvements located in that portion of the Leased Property
shown and designated as "Developer Maintenance Area" on
Exhibit H.
Section 3.6. Access. Prior to delivery of possession of
the Leased Property or any part thereof to Developer, the City
shall permit Developer access thereto whenever and to the extent
necessary to carry out the provisions of this Agreement. The
City shall also permit, including (without limitation) the
placement of construction trailers and staging area on or
adjacent to the Leased Property at no cost to the Developer. The
provisions of this paragraph shall not take. effect until
Developer, at its sole cost and expenses shall have secured or
caused to be secured comprehensive general public liability
insurance as required in Article IX of this Agreement.
Section 3.7. Construction Period. Developer shall commence
construction of the Developer Improvements not later than thirty
(30)_d.ays after the Possession Date or as soon thereafter as
weather permits (but not earlier than the approval of the.
Construction Plans) and shall complete the same substantially in
accordance with the Developer's approved Construction ,Plans in
accordance with the Development Schedule attached hereto as
Exhibit F. At the request of either party, the parties will
-36-
execute and deliver from time to time such certificates,
documents or instruments as may be appropriate to confirm the
dates of commencement or completion of construction as above
provided, which certificates, documents or instruments may be
recorded by the party requesting the same at its expense.
Section 3.8. Progress of -Construction. Subsequent to the
delivery of possession of the Leased Property and Future Leased
Property to Developer, and until construction of the Developer
Improvements has been completed, Developer shall keep the City
Manager apprised of the progress of Developer with respect to
such development and construction. During such period the work
of Developer shall be available for inspection by a full-time,
on -site representative of the City Manager. The Developer shall
provide suitable work space and utilities for the representative
at Developer's cost. Developer, by executing this Agreement,
represents it has visited the site, is familiar with local
conditions under, which the construction and operation is to be
performed, will perform all test borings and subsurface
engineering generally required at the site under sound and
prudent engineering practices, and will correlate the results of
its test borings and subsurface engineering and other available
studies and its observations with the requirements of the
construction and operation of the Project. The Developer shall
restore the site to its original condition after all testing, and
shall provide the City with a copy of all results. The City
makes no warranty as to subsoil conditions.• Developer shall not
be entitled to any adjustment of Rental or of any applicable time
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8 rUl-A
requirements in the event of any abnormal subsoil conditions
unless the subsurface conditions are so unusual -they could not
have been reasonably anticipated. Developer shall proceed with
the construction of the Developer Improvements as set forth in
the Development Schedule attached hereto as Exhibit G.
Section 3.9. Certificate of Final Completion. If feasible,
thirty (30) days after completion of the Developer Improvements
on the Leased Property in accordance with the provisions of this
Agreement, the City Manager will furnish Developer with an
appropriate instrument so certifying (the "Certificate of Final
Completion"). The Certificate of Final Completion shall be in
such form as will enable it to be recorded among the Land Records
of Dade' County. If the City Manager shall refuse or fail to
provide such certification in accordance herewith, the City
Manager shall, within fifteen (15)' days after written request by.
Developer, provide Developer with a written statement indicating
in. adequate detail in what respects Developer has failed to
complete the Developer Improvements in accordance with the
provisions of this Agreement, or is otherwise in default, and
what measures and acts, in the opinion of the City Manager, are
necessary for Developer to take or perform in order to obtain
such certification.
Section 3.10. Connection of nuildind to IItilities.
Developer, at its sole cost and expense, will install or causes to
be installed at its property line all necessary connections
between the Developer Improvements constructed or erected by it
on the Leased Property and the water, sanitary and storm drain
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M.
mains and mechanical and electrical conduits whether or not owned
by the City and/or the Miami -Dade Water and Sewer Authority.
Developer shall pay for the additional cost, if any, of locating
and installing new facilities for sewer, water, electrical, and
other utilities as needed to service the Leased Property.
Section 3.11. P,grmits and Aj;; vals. Except as otherwise
provided in this Section 3.11, Developer shall secure and pay for
any and all' permits and approvals necessary for proper
construction and completion of the Developer Improvements and
Developer shall secure any and all permits and approvals required
to perform any and all of the work or operations contemplated to
be done or performed under any of the provisions of .this
Agreement including, but not limited to, any alterations and
renovations made .pursuant to Section 3.14 hereof, and shall pay
any and all fees and charges due to and collected by the City in
connection with the issuance of any such permits and approvals.
If the City Manager's office shall be vacant or if the
authority of the City Manager shall change such that the City
Manager shall not have. the full authority to perform the
obligations imposed on that office envisioned under this Lease,
then the City shall, promptly upon request of the Developer,
designate such other officer or department as may be appropriate
to perform the City Manager's obligations.
Developer shall secure and pay for any and all permits and
approvals necessary for proper construction and completion of the
Developer Improvements with the exception of the permits and
approvals required pursuant to Section 380.06, Florida Statutes
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8'7r1411
and/or Chapter 33A of the Dade County Code, (the "Environmental
Laws"), if any. Specifically, Developer shall secure any and all
permits and approvals, required to perform any and all of the
work or operations contemplated to be done or performed under any
of the provisions of this Agreement including, but not limited
to, any alterations and renovations made pursuant to Section 3.14
hereof, and shall pay any and all fees and charges due to and
collected by the City in connection with the issuance of any such
permits and approvals. Developer shall also pay for any impacts
or exactions for which he is responsible.
Section 3.12. (.nm2 lance with Laws. Developer will comply
in every respect with any and all federal, state, county and
municipal laws, ordinances, rules, regulations, orders and
notices now or hereafter in force or issued which may be
applicable to any and all of the work or operations to be done,
performed or carried on by Developer under the provisions of this
Agreement including alterations and renovations pursuant to
Section 3.15 of his Agreement. Nothing herein shall limit the
right of Developer to contest the validity or enforceability of
any statute, law, ordinance, rule, regulations, order or notice
with which Developer may be required to comply hereunder.
Section 3.13. Vxt_ns on of Time R_gnirements. The times
within which Developer must submit Preliminary Plans,
Construction Plans and evidence of equity capital and commitments
for mortgage financing, and the times within which Developer must
commence and complete the development of the Leased Property and
the construction of the Developer Improvements thereon as
8'7:-141.1
of
0 0
specified in this Article 'may be extended in writing by the City
Manager in its sole disoretion, for such periods of time as it
deems advisable, for good and sufficient cause shown by the
Developer to the reasonable satisfaction of the City Manager.
Any. such extension of time shall be in writing and in such form
as will enable it to be recorded among the Land Records of Dade
County.
Section 3.14. Alterations and Renovations. After the
completion of construction of the Developer Improvements,
Developer from time to time may make such alterations or
renovations thereof as it shall deem desirable when the
renovations are permitted by the Building and Zoning Department
of the CITY and. cost less than fifteen thousand dollars
($151000). No renovation or alteration which affects' the
exterior appearance of the Developer Improvements or
substantially affects the overall character and appearance of the
Project or whose cost is $15,000 more shall be made until such
time as the City Manager shall have approved definitive
construction plans and specifications therefore, which approval
or disapproval be given within thirty (30) days of receipt of the
request or be deemed approved. City reserves the right to extend
the time period for approving or disapproving such alterations
and renovations that are inconsistent with the. previously
approved construction plans. Developer must also secure and pay
for any and all permits and approvals required to perform any of
the contemplated alterations or renovations.
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ARTICLE IV
LAND USES
Section 4.1. Land Uses. Developer and the City agree, for
themselves and their successors and assigns, to devote the Leased
Property, to the uses specified in this Agreement and to be bound
by and comply with all of the provisions and conditions of this
Agreement.
Section 4.2. Charaoter and Ctieration of Tmvrovements. -The
parties recognize and acknowledge that the manner in which the
Leased Property and Improvements are developed, used and operated
are matters of critical concern to the City by reason of the
economic development of the downtown area of the City.
Developer shall establish such reasonable rules and
regulations governing the use and operation by Subtenants of
their premises as Developer shall deem necessary or desirable in
order to assure the level of quality and character of operation
of the Developer Improvements required herein, and it will use
all reasonable efforts to enforce such rules and regulations.
In the event the residential units on the Leased Property
are converted to condominiums Developer shall prepare condominium
documents in accordance with the provisions set forth in Chapter
718, Florida Statutes.
All documents prepared by Developer are subject to the
approval of the City Attorney and all rules and regulations
included therein shall not conflict with this Lease or City's
interest.
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0
ARTICLE V
ANTI-SPECVL.ATIOX • ASSIn2v*L=
Section 5.1. nefinitionc. As used herein,' the term,
a) "Transfer" means:
U) any total or partial sale, assignment or
conveyance (other than by a Leasehold Mortgage or Financing
Sublease) or any trust or power, or any transfer in any other
mode or form of or with respect to this Lease or of the leasehold
estate in the Leased Property or any part thereof or any interest
therein, or any contract or agreement to do any of the same.
(ii) any transfer of the stock of the General Partner
Of Developer or of any Owners other than an Owner whose shares
are publicly traded; or
(iii) any merger, consolidation or sale or lease of
all or substantially all of the assets of Developer. or of any
Owner, other than an owner whose shares are publicly traded; or
(iv) any Sublease of over fifty (50) percent of the
Leaseable Area of the Project to a single Subtenant or Subtenants
who are related in their ownership, except for a Financing
Sublease.
(b) "Owner" means:
(i) any person, firm, corporation or other entity
which owns, directly or indirectly, legally or beneficially, one
percent (1%) or more of the stock of the General Partner of
Developer (exclud4,ng any shareholder of an Owner whose shares are
publicly traded) or other form of ownership interest of the
Developer; and
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(ii) any person, firm, corporation or other entity
which owns, directly or indirectly, legally or beneficially, more
than fifty percent (50%) of the stock of the General Partner of
Developer or other form of ownership interest of any entity
described in clause (i.) or this clause (ii), but shall not
include any shareholder of an Owner whose shares are publicly
traded.
(c) "Owner whose shares are publicly traded" means an
Owner:
(i) who has filed an effective registration statement
with the Securities V Exchange Commission (or its successor) with
respect to the shares of any class of its voting ' stock or of all
classes of any other form of ownership interest which includes
voting rights; and
(ii) whose voting stock and other form of ownership
interest described in clause (i) is listed for trading purposes
on a securities exchange subject to the regulatory jurisdiction
of the Securities V Exchange Commission (or its successor) or is
publicly traded over the counter.
Section 5.2. Purv'oses of Restrictions on Transfer. This
Lease is granted to Developer solely for the purpose of
development of the Leased Property and its subsequent use in
accordance with the terms hereof, and not for speculation in
landholding, Developer recognizes that, in view of:.
(a) The importance of the development of the Leased
Property to the general welfare of the community;
(b) The substantial financing and other public aids that
QVC
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have been made available by the City for the purpose of making
such development possible; and
(c) The fact that a transfer of the stock of the General
Partner of Developer or a substantial part thereof, or any other
act or transaction involving or resulting in a significant change
in the ownership or distribution of such stock or with respect to
the identity of the parties in control of Developer or the degree
thereof, is for practical purposes, a transfer or disposition of
the leasehold interest in the Leased Property then owned by
Developer; the qualifications and identity of Developer and any
Owner are of particular concern to the community and the City.
Developer further recognizes that it is because of such
qualifications and identity that the City is entering into this
Lease with Developer, and, in so doing, is further willing to
accept and rely on the obligations of Developer for the faithful
performance of all undertaking and covenants by it 'to be
performed.
Section 5.3. TrArcfArs. Developer, on behalf of itself and
any and all Owners, represents and warrants that neither
Developer nor any Owner has made, created or suffered any
Transfers. Except as permitted pursuant to subparagraphs (a)
through (i) hereof, no Transfer may be made, suffered or created
by Developer or any Owner. The following Transfers shall be
permitted hereunder:
(a) Any Transfer by Leasehold Mortgage to an Institutional
Investor or to an agent, designee. or nominee of an Institutional
Investor which is wholly owned or controlled by an Institutional
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Investor or pursuant to a Financing Sublease, pursuant to Article
VI.
(b) Any Transfer directly resulting from the foreclosure of
a Leasehold Mortgage or the granting of a deed in lieu of
foreclosure of a .Leasehold Mortgage or any Transfer made by the
purchaser at foreclosure of a Leasehold Mortgage or by the
grantee of a deed in lieu of foreclosure of a Leasehold Mortgage,
provided that such purchaser or grantee is an Institutional
Investor or an agent, designee or nominee of an Institutional
Investor which is wholly owned or controlled by an institutional
Investor, and that such purchaser or grantee within two (2)
months after taking possession of the Project, shall have entered
into an Acceptable Operator's Agreement as described in
subsection 6(c)(iv) of this Agreement.
(c) Any Transfer directly resulting from a .conveyance to a
Lender/Landlord of the Developer's interest provided that such
Transferee, within thirty (30) days after taking possession of
the Project, shall have entered into an Acceptable Operator's
Agreement as described in Subsection 6(c)(iv) of this Agreement.
(d) From and after the date that the Project has been in
operation for three (3) years after the Opening Date, -any
Transfer to (i) an Acceptable Operator consented to by the City
Manager and City Commission or (ii) a purchaser having a good
reputation and financial resources in the opinion of the City
Manager and the City Commission to own the Project (an
"Acceptable Purchaser") that shall have entered into an
Acceptable Operator's Agreement with an Acceptable Operator.
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(e) Any Transfer to a joint venture, general or limited
partnership, joint stock association or Massachusetts business
trust, a substantial interest in which is held by Developer and
the other interests in which are held by an Institutional
Investor or by such other persons, firms, corporations, or other
entities as to which the City Manager shall have given his
approval in his sole discretion, provided that, within thirty
(30) days after gaining possession of the Project, the Transferee
shall have entered into an Acceptable Operator's Agreement as
described in Subsection 6.1(c)(iv) of this Agreement.
(f)
Any
Transfer to an
entity which is not an Owner,
all of
the stock
or
other form of
ownership interest of which is
owned
by an Owner.
(g) Any Transfer by a limited partner, which is consented
to by the City Manager, which consent may not be unreasonably
withheld.
(h) Any Transfer resulting from the death or dissolution of
an Owner provided that same does not result in the dissolution or
termination of Developer or any general partner of Developer.
(i) Any Transfer by an Owner who is a limited partner of
Developer into a charitable trust, a blind trust or for estate
planning purposes for the immediate family.
(j) Any Transfer pursuant to Section 718.301, Florida
Statutes, from Developer to a condominium association which has
as its membership owners of the Developer Improvements or portion
a thereof.
Any consent to a Transfer shall not waive any of the City's
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rights to consent to a subsequent Transfer. Any Transfer made in
violation of the terms hereof shall be null and void and of no
force and effect.
Section 5.4. Notice of Transfer: Information as to
Shareholders.
(a) With respect to any Transfer which must be approved by
the City, Developer shall give or cause to be given to the City
written notice (including all information necessary for the City
to make an evaluation of the proposed Acceptable Operator
according to the requirements of this Agreement) of any Transfer
of which Developer or its officers shall have knowledge, not less
than thirty (30) days prior to any such proposed Transfer and the
City shall within fifteen (15) days of its receipt of such
information, advise Developer if it shall consent to same. If
the City shall ,not consent to a Transfer, the City Manager shall
state the reasons for such disapproval in his notice to Developer
withholding his consent. If the City is not required to consent
to a Transfer pursuant to the terms hereof, Developer shall
notify the City in writing of same within fifteen (15) days after
the date of Transfer.
(b) Developer shall from time to time throughout the term
of this Lease as the City shall reasonably request, furnish the
City with a complete statement, subscribed and sworn to by• the
President or vice -President and the Secretary or Assistant
Secretary of the general partner of Developer, setting forth the
full names and address of holders of partnership interests in
Developer, or any general partners of Developer or the stock of
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any general partner of Developer and the extent of their
holdings, and in the event any other parties have a beneficial
interest in such stock, their full names and addresses and the
extent of such interest as determined or indicated by the records
of Developer, by inquiry which such officers shall make of all
parties who on the basis of such records own a one percent (1%)
or more ownership interest in Developer or by such other
knowledge or information as either of such officers shall have.
Notwithstanding the foregoing, the information required by this
subparagraph (b) shall not be required to be furnished with
respect to the shareholders of any Owner whose shares are
publicly traded.
Section 5.5. Effectuation of Certain Permitted Transfers.
No Transfer of the nature described in subsections (d) and (e) of
Section 5.3. shall be effective unless and until the entity to
which such Transfer is made, by instrument in writing
satisfactory to the City Manager and in form recordable among the
land records, shall, for itself and its successors and assigns,
and especially for the benefit of the City, expressly assume all
of the obligations of Developer under this Lease.and agree to be
subject to* all conditions and restrictions to which Developer is
subject; provided, however, that any Lender, Leasehold Mortgagee,
Lender/Landlord transferee shall not be required to assume any
personal liability under this Lease with respect to any matter
arising prior or subsequent to the period of such transferee's
actual ownership of the leasehold estate created by this Lease
(it being understood, nevertheless, that the absence of any such
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liability for such matters shall not impair, impede or prejudice
any other right or remedy available to the City for default by
Developer); and provided further, that the fact that any such
transferee of, or any other successor in interest whatsoever to,
the leasehold estate in the Leased Property or the Improvements,
or any part thereof, shall whatever the reason, not assume such
obligations or so agree, shall not (unless and only to the extent
otherwise specifically provided in this Lease or agreed to in
writing by the City) relieve or accept such transferee or
successor of or from such obligations,. conditions or
restrictions, or deprive or limit the City of or with respect to
any rights, remedies or controls with respect to the leasehold
estate in the Leased Property or the construction of the
construction of the Improvements.
Section 5.6. Transfers of the City's Interests. The City
represents and agrees for itself, its successors and assigns,
that the City has not made or created and that it will not during
the term of this- Lease, make or create or suffer to be made or
created any total or partial sale, assignment, conveyance,
mortgage, trust or power, or other transfer in any mode or form
of or with respect to the City's reversionary interest in the
Leased Property or any part thereof or any interest therein or
any contract or agreement to do any of the same, to any
purchaser, assignee, mortgagee or trustee unless such purchaser,
assignee, mortgagee or trustee shall have the authority and the
ability, in the Developer's opinion, to assume the obligations of
the City -under this Lease and the purchaser, assignee, mortgagee
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or trustee shall expressly agree to assume the obligations of the
City under this Lease, in a form satisfactory to Developer and
any Leasehold'Mortgagee.
Notwithstanding any such transfer and assumption, the City
shall not be released from its obligations pursuant to Sections
2.8 and 3.5, which obligations are personal to the City and shall
remain in effect during the term of this Lease.
Section 5.7. Subletting. At the City's request, Developer
shall provide to the City a copy of all Subleases for the Project
Developer shall incorporate in all Subleases provisions
concerning rentals and expenses that are compatible with the
Annual Base Rental formula in this Agreement. Developer shall
have the right, to enter into Subleases of any part of the Leased
Property or Improvements at any time and from time to time during
the term of this Lease with such Subtenants and upon such
commercially reasonable terms and conditions as Developer shall,
in its sole discretion, deem fit and proper, provided, however,
that Developer shall not enter into any Sublease with any
Subtenant which does not deal. with Developer at arm's length
without first obtaining the City's approval, which. approval the
City may in its sole discretion withhold. If Developer shall
contemplate making any Sublease with respect to which the City's
approval is required pursuant to the foregoing sentence.
Developer shall submit to the City a copy of such proposed
Sublease together with any information concerning the identity of
the Subtenant as the City may reasonably request. Within thirty
(30) days after submission of such proposed Sublease and
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I Is
information, the City shall notify Developer whether the proposed
sublease is approved. In the event the City shall fail to so
respond within thirty (30) days after submission of such Sublease
and information, the same shall be conclusively deemed to have
been approved by the City.
ARTICLE VI
MORTGAGE FINANCING_: RIGRTS OF MORTGAGEE
Section 6.1. Leasehold Mortgage.
(a) Notwithstanding the provisions set forth in Article V
hereof regarding any Assignment of this Lease, but subject to the
provisions of this Article VI, provided that an Event of Default
has not occurred and is not continuing, Developer shall have the
right at any time and from time to time to encumber the leasehold
estate created by this Lease and any improvements by Mortgage.
Sale-Subleaseback transaction, deed of trust or other security
instrumenti including, without limitation, an assignment of the
rents, issues and profits from the Project to secure repayment of
a loan or loans (and associated obligations)'made to Developer by
an Institutional Investor (as defined below) for the sole purpose
of securing the financing of the construction. of any Developer
Improvements made pursuant to the terms of this Lease or for the
long-term financing or refinancing of any such Developer
Improvements. In no' event may the amount of such financing
exceed Development Costs. Developer shall deliver to City
promptly after execution by Developer a true and verified copy of
any Leasehold Mortgage (as defined below), or any Financing
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Sublease and any amendment, modification or extension thereof,
together with the name and address of the owner and holder
thereof. Developer may not encumber the leasehold estate created
by this Lease as security for any indebtedness of Developer with
respect to any other property now or hereinafter owned by
Developer.
(b) For purposes of this Article VI: "Institutional
Investor" shall mean any national bank organized under the laws
of the United States or any commercial bank, or any savings and
loan association, savings bank, trust company or insurance
company organized under the laws of the United States or any
state of the United States, or any pension, retirement or welfare
trust or fund supervised by a government authority of any state
or the United States or any such trust or fund administered by an
entity which is' supervised by a governmental authority;
"Leasehold Mortgage" shall mean a mortgage, deed of trust or
assignment of the rents, issues and profits. from the Project,
which constitutes a lien on the leasehold estate created by this
Lease and on the fee interest of Developer in any Improvements
during the term of this. Lease; and "Leader". shall mean an
Institutional Investor who is the owner and holder of a Leasehold
Mortgage, nro� vided, howgver, that the City shall have no duty or
obligation to determine independently the relative priorities of
any Leasehold Mortgages, but shall be entitled to rely absolutely
upon a preliminary* title report current as -of the time of any
determination of the priorities of such Leasehold Mortgage and
prepared by a generally -recognized title insurance company doing
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business in Miami, Florida.
(c) During the continuance of any Leasehold Mortgage until
such time as the lien of any Leasehold Mortgage has been
extinguished, and if a true and verified copy of such Leasehold
Mortgage shall have been delivered to the City Manager together,
with a written notice of the name and address of the owner and
holder thereof as provided in Section 6.1(a) above:
W The City shall not agree to any mutual termination
nor accept any surrender of this Lease (except upon the
expiration of the full term of this Lease) nor shall the City
consent to any material amendment or modification of this Lease
or waive any rights or consents it may be entitled to pursuant to
the terms hereof, without the prior written consent of Lender.
Ui) Notwithstanding any default by Developer in the
performance or observance of any covenant, condition or agreement
of this Lease on the part of Developer to be performed or
observed, the City shall have no right to terminate this Lease
even though an event of default under this Lease shall have
occurred and be continuing, unless and until the City Manager
shall have given Lender. written notice of such Event of Default
and Lender shall have failed to remedy such default or to acquire
Developer's leasehold estate created hereby or to commence
foreclosure or other appropriate proceedings in the nature
thereof, all as set forth in, and within the time specified by
this Article VI.
(iii) Subject to the provisions of subparagraph (iv)
immediately below, Lender shall have the right, but not the
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0
obligation, at any time Prior to termination of this Lease and
without payment of any penalty, to pay all of the rents due
hereunder, to provide any insurance, to pay any taxes and make
any other payments, to make any repairs and improvements, to
continue to construct and complete the Developer Improvements,
and do any other act or thing required of Developer hereunder,
and to do any act or thing which may be necessary and proper to
be done in the performance and observance of the covenants,
conditions and agreements hereof to prevent the termination of
this Lease. All payments so made and all things -so done and
performed by Lender shall be as effective to prevent a
termination of this Lease as the same would have been if made,
done and performed by Developer instead of by Lender.
(iv) Should any Event of Default under this Lease
occur, Lender shall have thirty (30) days after receipt of notice
from the City Manager setting forth the nature of such Event of
Default, to remedy same and, if the default is 'such that
possession of the Project may be reasonably necessary to remedy.
the default, Lender shall, within such thirty (30) day period,
commence and diligently prosecute a foreclosure. action or such
other proceeding as may be necessary to enable Lender to obtain
such possesslon, provided that (a) Lender shall have fully cured
any default in the payment of any monetary obligations' of
Developer under this Lease within such thirty (30) day or longer
period and shall continue to pay currently such monetary
obligations as and when the same are due, (b) Lender shall within
two (2) months of the date that it takes possession of the Leased
. 8'7-Ul l
Property enter into an agreement on terms and conditions
reasonably acceptable to the City with an Acceptable Operator for
the continued operation of the Project (hereinafter called
"Acceptable Operator's Agreement"), and (c) Lender shall have
acquired.Developer's leasehold estate created hereby or commenced
foreclosure or other appropriate proceedings in the nature
thereof within such thirty (30) day period or prior thereto, and
shall be diligently and continuously prosecuting any such
proceedings to completion. All rights of the City Manager to
terminate this Lease as the result of the occurrence of any such
Event of Default shall be subject to and conditioned upon the
City Manager having first given Lender written notice of such
Event of Default and Lender having failed to remedy such default
or acquire Developer's leasehold estate created hereby or
commence foreclosure or other appropriate proceedings in the
nature thereof as set forth in and within the time period
specified by this subparagraph (iv).
(v) An Event of Default under this Lease which in the
nature thereof cannot be remedied by Lender shall be deemed to be
remedied if (a) within thirty (30) days after receiving written
notice from the City Manager setting forth the nature of such
Event of Default, Lender shall have acquired Developer's
leasehold estate created hereby or commenced foreclosure or other _
appropriate proceedings in the nature thereof. (b) Lender shall
diligently and continuously prosecute any such proceedings to
completion, (c) Lender shall have fully cured any default in the
payment of any monetary obligations of Developer under this Lease
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which do not require possession of the Project within such sixty
(60) days period and shall thereafter continue to faithfully
perform all such monetary obligations which do not require
possession of the Project, and (d) within two (2) months after
Lender shall have gained possession of the Project, Lender shall
have enter.ed into an Acceptable Developer's Agreement. Upon the
taking of possession of the Project by Lender, Lender shall
perform all of the- obligations of the Developer hereunder as and
when the same are due. Notwithstanding the foregoing, the City
agrees that Lender shall not be obligated to complete
construction of the Developer Improvements if Lender shall
succeed to Developers estate under this Lease. Any assignee or
successor in interest to a Lender that has taken possession of
the Leased Property must, however, assume all of Developer's
obligations hereunder (except as set forth in Section 5.3
hereof), including, but not limited to, the construction
obligation.
(vi) If the Lender is prohibited by any process or
injunction issued by any court or by reason of any action by any
court having jurisdiction of any bankruptcy, debtor
rehabilitation or insolvency proceedings involving Developer from
commencing or prosecuting foreclosure or other appropriate
proceedings in the nature thereof, the times specified in
subparagraphs Uv) and (v) above for commencing or prosecuting
such foreclosure or other proceedings shall be extended For the
period of such prohibition, provided that Lender shall have fully
cured any default in the payment of any monetary obligations of
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8'7-141.1.
Developer under this Lease and shall continue to pay currently
such monetary obligations as and when the same fall due, and
provided that Lender shall diligently attempt to remove any such
prohibition. At any time that a Lender is in possession of the
Leased Property pursuant to the terms hereof and at all times
thereafter during the term of this Lease or any Renewal Term, the
Rental obligation to the City shall be limited to an amount equal
to the Annual Basic Rental as defined in Section 2.5(a).
(vii) The City Manager shall mail to Lender a
duplicate copy by certified mail of any and all notices which the
City may from time to time give to or serve upon Developer
pursuant to the provisions of this Lease, and no notice by the
City Manager to Developer hereunder shall be deemed to have been
given unless and until a copy thereof has been mailed to Lender.
(viii.) Foreclosure of a Leasehold Mortgage or any sale
thereunder, whether by judicial proceedings or by virtue of any
power of' sale contained in the Leasehold Mortgage, or any
conveyance of the leasehold estate created hereby from Developer
to Lender by virtue or in lieu of the .foreclosure or other
appropriate proceedings in the nature thereof, shall not require
the consent of the City or constitute a breach of any provision
of or a default under this Lease. Upon such foreclosure, sale or
conveyance, the City shall recognize Lender, or any other
foreclosure sale purchaser, as tenant hereunder except that all
obligations on Developer herein contained shall be binding on the
Lender only from and after the date that it shall take title to
the Developer's leasehold estate unless otherwise in this Article
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VI provided; provided, that Lender or any such foreclosure sale
Purchaser must enter into an Acceptable Developer's Agreement,
within two (2) months of the date of such foreclosure, sale or
conveyance, and further, provided, that in the event there are
two or more Leasehold Mortgages or foreclosure sale. purchasers
(whether the same or different Leasehold Mortgages), the City
shall have no duty or obligation whatsoever to determine the
relative priorities of such Leasehold Mortgages or the rights of
the different holders thereof and/or foreclosure sale purchasers,
in the event Lender subsequently assigns or transfers its
interest under this Lease after acquiring the same by foreclosure
or by an acceptance of a deed in lieu of foreclosure or
subsequently assigns or transfers its interest under any such new
lease, and in connection with any such assignment or transfer
Lender takes back a mortgage or deed of trust encumbering such
leasehold interest to secure a portion of the purchase price
given Leasehold Mortgage as contemplated under this Section 6.1.
Lender shall be entitled to receive the benefit of this Article
VI and any other provisions of this Lease intended for the
benefit of the holder of a Leasehold Mortgage.. Any person or
entity to whom this Lease or any such new lease is assigned must
either enter into or assume Lender's obligations under an
Acceptable Developer's Agreement.
(ix) Should the City terminate this Lease by reason of
any default by Developer hereunder, the City Manager shall give
notice thereof to all Leasehold Mortgagees and the City. Manage
shall, upon written request by Lender to the City Manager
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received within thirty (30) days after such termination, execute
and deliver a new lease of the Project to Lender for the
remainder of the term of this Lease with the same covenants,
conditions and agreements (except for any requirements which have
been satisfied by Developer prior to termination) as a're
contained herein, provided, however., that the City's execution
and delivery of such new lease of the Project shall be made
without representation or warranty of any kind or nature
whatsoever, either express or implied, including without
limitation, any representation or warranty regarding title to the
Project or any Developer Improvements or the priority of such new
lease (except as to actions taken by the City during the period
commencing on the date of termination of this Lease and
terminating on the date of such new Lease). The City's delivery
of any Developer Improvements to Lender pursuant to such new
lease shall be made without representation or warranty of any
kind or nature whatsoever, either express or implied, and Lender
shall take any Improvements "as -is" in their then current
condition (except as to any actions taken or improvements made by
the City during such time as the Leased Property were not the
subject of a Lease). Upon execution and delivery of such new
lease, Lender at its sole cost and expense shall be responsible
for taking such action as shall be necessary to cancel and
discharge this Lease and to remove Developer named herein and any
other occupant (other than as allowed by the City) from the
Project. The City's obligation to enter into such new lease of
the Leased Property with the Lender .shall be conditioned upon
87-141 *1
Lender having remedied and cured all monetary defaults hereunder
and having remedied and cured or has commenced and is diligently
completing the cure of all non -monetary defaults of Developer
susceptible to cure by any party other than by Developer. If the
City receives written requests in accordance with the provisions
of this Section 6.1(ix) from more than one Leasehold Mortgagee.
the City shall only be required to deliver the new lease to the
Leasehold Mortgagee who is, among those Leasehold Mortgagees
requesting a new lease, the holder of the most junior Leasehold
Mortgage, provided that such Leasehold Mortgagee shall, not later
than the execution of such new lease, either (a) pay in full the
sums secured by any or all Leasehold Mortgages which are prior in
lien to the Leasehold Mortgage held by such Leasehold Mortgagee,
or (b) agree to reinstate the liens of any or all Leasehold
Mortgages which are prior in lien to the Leasehold Mortgage held
by such Leasehold Mortgagee with the same relative priority as
existed prior to the termination of this Lease. If any Leasehold
Morigage having the right to a new lease pursuant to this Section
6.1 (ix) shall elect to enter into a new lease but shall fail to
do so 'or shall fail to take the action required .above, the City
shall so notify all other Leasehold Mortgagees (if any) and shall
afford such other Leasehold Mortgagee a period of sixty (60) days
from such notice within which to elect to obtain a new lease in
accordance with the provisions of this Section. Except for any
liens reinstated pursuant to this Section, any new lease entered
into. pursuant to this section shall be prior to any mortgage. or
other lien, charge or encumbrance on the fee of the Leased
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Property or the improvements and shall have the same relative
Priority in time and in right as this Leese and shall have the
benefit of all of the right, title, powers and privileges of
Developer hereunder in and to the Leased Property and the
Developer Improvements. At Developer's request, the City will
enter into an agreement with any Leasehold Mortgage granting to
the Leasehold Mortgagee the rights set forth in this Article. If
such new lease is entered into pursuant hereto, the Lender shall
be entitled to offset from the previous rentals due the City
under this Lease, the net operating profit, if any, made by the
City during the period that the City shall have operated the
Project.
(x) City and Developer shall cooperate in including in
this Lease by suitable amendment from time to time any provision
which may be requested by any proposed Lender, or may otherwise
be reasonably necessary, to implement the provisions of this
Article VI; provided, however, that any such amendment shall not
in any way affect the term hereby demised nor affect adversely in
any material respect any rights the City under this Lease.
(xi) All rights and benefits afforded, to a Leasehold
Mortgagee hereunder shall also be afforded to a party providing
financing to Developer pursuant to a Financing Sublease.
Section 6.2. No Waiver of Developer's Obligations or Citv's
Rights. Nothing contained herein or in any Leasehold Mortgage
shall be deemed or construed to relieve Developer from the full
and faithful observance and performance of its covenants.
conditions and agreements contained herein, or from any liability
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4 .4
for the non -observance or non-performance thereof, or to require
or provide for the subordination to the lien of such Leasehold
Mortgage of any estate, right, title or interest of the City in
or to the Project or this Lease.
ARTICLE VIZ
REMEDIVE
Section 7.1. Events of Default - Developer. The following
events are hereby defined as "Events of Developer's Default:"
(a) Failure - Delayed Construction. Failure cf Developer
to begin construction of the Development Improvements within one
(1) year of the date the Miami City Commission approves the
execution of this Lease.
(b) Failure - Payment of Money. Failure of Developer to
pay any Rental, Additional Rental or Public Charges or any other
payments of money as herein provided or required, when due and
the continuance of such failure .for a period of ten (10) days
after notice thereof in writing.
In the event that any payment or installment of Rental is
not paid to the City on the date, the same* becomes due and
payable, Developer covenants and agrees to .pay to the City
interest on- the *amount thereof from the date such payment or
installment became due and payable to the date of payment
thereof, at the Default Rate. All other payments of money
required to be paid to the City by the Developer under this
Lease, including interest, penalties and contributions, shall be
treated as Additional Rent.
C=No
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(c) Failure P _rforma tc e of Other cove at,ta Etc± Failure
of Developer to perform any of the other covenants, conditions
and agreements which are to be performed by Developer in this
Lease to incluae completing the construction of the Developer
Improvements in a timely manner as prescribed on the Development
Schedule, and the continuance of such failure for a period of
sixty (60) days after notice thereof in writing from the City to
Developer (which notice shall specify the respects in which the
City contends that Developer has failed to perform ,any such
covenants, conditions and agreements), unless such default was
not caused or created by the Developer and cannot be cured within
sixty (60) days and the Developer within said sixty (60) day
period shall have commenced and thereafter shall have continued
diligently to prosecute all actions necessary to cure such
default, said failure shall constitute an Event of the
Developer's Default.
(d) Bankruptcy. Etc.
1. if an order or relief shall be entered upon any
petition filed by or against Developer, as debtor, seeking relief
(or instituting a case) under Chapters 7, 9, 11 or 13 of the
Bankruptcy Code of 1978, it U.S.C. (Sec. lb et seg.) or any
successor thereto; or
2. if Developer admits its inability to pay its debts,
or if a receiver, trustee or other court appointee is appointed
for all or a substantial part of Developer's property; or
3. if the leasehold interest of Developer is levied
upon or attached by process of law; or
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4. if Developer makes as assignment for the benefit of
creditors or takes the benefit of any insolvency act, or if any
proceedings are filed by or against Developer to declare
Developer insolvent or unable to meet its debts; or
5. if a receiver or similar type of appointment or
court appointee or nominee of any name or character is made for
Developer or its property; or
6. if Developer shall abandon the Leased Property
during the term of this Lease or any renewals or extensions
thereof; or
7. if Developer shall assign this Lease or sublet any
portion of the Leased Property, except as permitted herein.
Section 7.2. Remedies for Developer's Defauit.
If an Event of Developer's Default shall occur, City, to the
fullest extent permitted by law, shall have the right to pursue
any or all of the following remedies:
(a) If Developer does not begin construction of the
Developer Improvements as required is Section 7.1(a), this Lease
shall be terminated and all development rights shall be
rescinded.
(b) If Developer is unable to complete Phase I or any
subsequent phase of.the Developer Improvements as required so as
to take possession of the remaining Future Leased Property, the
Future Leased Property shall remain in the City's possession and
may be disposed of as the City deems appropriate.
(c) If after the Possession Date of the Leased Property
Developer is unable to complete the Developer Improvements, City
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may allow Developer, prior to default, to sell his interest in
the Project to other Developers of the SEOPW, who have begun
construction on the property in their possession and are not in
default.
(d) If the Developer is, unable to sell his interest as
stated in Section 7.2(b) or if any of the other Events of
Developer's Default shall occur, the City may, institute such
proceedings as in its opinion are necessary to cure such defaults
or to compensate the City for damages resulting from such
defaults, including but not limited to the right to give to the
Developer a notice of termination of this Lease. If such notice
is given, except as otherwise provided in Article VI hereof, the
term of this Lease shall terminate, upon the date specified in.
such notice from the City to Developer, as fully and completely
as if that date were the date herein originally fixed for the
expiration of the term of this Lease, and on the date so
specified, Developer shall then quit and surrender all property
in his possession to the City in accordance with Section 11.5.
Upon the termination of this Lease, as provided in this Section
7.2, all rights and interest of the Developer. in and to the
Leased Property and every part thereof shall cease and terminate
and the City may, in addition to any other rights and remedies it
may have, retain all sums paid to it by the Developer 'under this
Lease.
The Condominium Owners or Subtenants in possession of
the Developer Improvements or the Leased Property shall not be
disturbed pursuant to a Nondisturbance Agreement as long as said
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individuals are current with their pro rata share of the rental
payment due on the subject property.
Section 7.3. Events of_Default - City. The failure of the
City to perform any of the covenants, conditions and agreements
of this Lease which are to be performed by the City and the
continuance of such failure for a period of sixty (60) days after
notice thereof in writing from Developer 'to the City (which
notice shall specify the respects in which Developer contends
that the City has failed to perform any of such covenants,
conditions and agreements) and unless such default be one which
cannot be cured within sixty (60) days and the City within such
sixty (60) day period shall have commenced and thereafter shall
continue diligently to prosecute all actions necessary to cure
such defaults, such failure shall constitute an "Event of the
City's Default . " .
Section 7.4. QPmedies for City's Default. 11 an. Event of
the City's Default shall occur, Developer, to the fullest extent
permitted by law, shall have the right to pursue any or all of
the following remedies:
(a) the right and option to terminate this Lease and all•of
its obligations hereunder by giving notice of such election to
the City whereupon this Lease shall terminate as of the date of
such notice;
(b) the right to a writ of mandamus, injunction or other
similar relief, available to it under Florida law against the
City (including any or all of the members of its governing body,
and its officers, agents or representative) provided, however,
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that in no event shall any member of such governing body or any
of its officers, agents or representatives be personally liable
for any of the City's obligations to Developer hereunder;
(c) the right to maintain any and all actions at law or
suits in equity or other proper proceedings to obtain damages
resulting from such default.
Section 7.5. unavoidable Delay. For the purpose of any of
the provisions of this Agreement, neither the City (including the
City Manager) nor Developer, as the case may be, nor any
'successor in interest, shall be considered in breach of or in
default in any of its obligations, including but not limited to
the preparation of the Leased Property or Future Leased Property
for development, or the beginning and completion of construction
of the Developer Improvements, or progress in respect thereto, in
the event of unavoidable delay in the performance of such
obligations due to strikes, lockouts, acts of God, inability to
obtain labor or -materials due to governmental restrictions, enemy
action, civil commotion, fire, unavoidable casualty, a
substantial increase in crime within a one mile radius of SEOPW
or other similar causes beyond the reasonable control of a party
(not including such party's insolvency of financial condition),
it being the purpose and intent of this paragraph that in the
event of the occurrence of any such unavoidable delays the time
or times for the performance of the covenants, provisions and
agreements of this Lease, including but not limited to the
obligations of the City and .the City Manager with respect to the
preparation of the Leased Property and Future Leased Property for
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development and completion of the City improvements or of
Developer with respect to construction of Developer Improvements,
shall be extended for the period of unavoidable delay; provided,
however, that the party seeking the benefit of the provisions of
this Section shall, within thirty (30) days after such party
shall have become aware of such unavoidable delay, give notice to
the other party thereof; in writing of the cause or causes
thereof and the time delayed. The parties hereto agree if any
event shown on Exhibit G shall not occur at the time required for
same as a result an event of unavoidable Delay, the Rent
Commencement Date shall be postponed to a date extended by the
period of such delay or the Opening Date, whichever is earlier.
Section 7.6. Obligations. Rights and Remedi_c Ulativ ..
The rights and remedies of the parties to this Agreement, whether
provided by law or by this Agreement, shall be cumulative, and
the exercise by either party of any one or more of* such remedies
shall not preclude the exercise by it, at the same or different
times, of any other such remedies for the same default or breach
or of any of its remedies for any other default or breach by the
other party. No waiver made by either party with respect to
performance, or manner or time thereof, of any ' obligation of the
other party or any condition to its own obligation under this
Agreement shall be considered a"waiver of any rights of the party
making the waiver with respect to the particular obligations of
the other party or condition to its own obligation beyond those
expressly waived and to the extent thereof, or a waiver in any
respect in regard to any other rights of the party making the
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waiver or in regard to any obligation of the other party.
ARTICLE VIII
11. ♦ ^ ♦ T1.I1fM %I"^" l 17T/1N /
Section 8.1. �nha.nios' Ligna and Payments of Obligations.
(a) Developer to Discharge Mechanics' Liens. Developer
shall not be given possession of the Leased Property or Future
Leased Property or authorized to begin construction thereon prior
to the recording of this Lease and prior to Possession Date so as
not to subject the'fee interest of the City to mechanics' liens.
If any such mechanics' liens shall at any time be filed against
the Leased Property or Future Leased Property, Developer shall
promptly take and diligently prosecute appropriate action to have
the same discharged or to contest in good faith the amount or .
validity thereof and if unsuccessful in such contest, to have the
same discharged: Upon Developer's failure so to do, the City, in
addition to any other right or remedy that it may have, may take
such action as may be reasonably necessary to protect its
Interest, and Developer shall pay any amount paid by the City in
connection with such action, and all reasonable legal and other
costs and expenses incurred by the City in connection* therewith
(including reasonable counsel fees, court costs and other
necessary disbursements). Any such amounts paid by the City and
the amount of any such expenses or costs incurred by the City, if
not paid by, Developer to the City within thirty (30) days after
the date Developer receives. written notice from the City of the
amount thereof and demand for payment of the same, shall,
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together with interest thereon at the Default Rate from the date
of the receipt by Developer of the aforesaid written notice and
demand to the date of payment thereof by Developer, be treated as,
Additional Rental, and shall be payable by Developer to the City
not later than the next monthly installment of the Annual Basic
Rental becoming due.
(b.) Payment of Mate ialmen and suvpli -rs . Developer shall
make, or cause to be made, prompt payment of all money due and
legally owing to all persons doing any work or to subcontractors
in connection with the development, construction, equipment,
repair or reconstruction of any of the Developer Improvements
required by this Agreement to be constructed by Developer on the
Leased Property. Nothing in this subparagraph (b) shall limit
the right of Developer to contest, in good faith, by legal
proceedings or otherwise, whether any amount claimed or alleged
to be due and owing to any such person is legally due and owing
and to withhold payment of such amounts pending resolution of
such dispute.
Section 8.2. TZ42arite. Notwithstanding any policy or
policies of insurance required - of Developer, Developer shall
indemnify and save harmless the City from and against any and all
actions, claims or demands, suits at law, in equity or before
administrative tribunals, due to the negligence of Developer, its
agents, servants, employees or contractors arising out of the use
or occupancy of the Leased Property by*such persons. Developer
shall defend any and all such actions, claims, demands or suits
on behalf of the City at Developer's sole cost and expense. The.
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City shall indemnify and save harmless Developer from and against
any and all claims or demands, suits at law, in equity or before
administrative tribunals, due to the negligence of the City, its
agents, servants, employees, or contractors arising out of the
use or occupancy of the Leased Property by such persons. The
City shall defend any and all such actions claims, demands or
suits on behalf of Developer at the City's sole cost and expense.
ARTICLE IX
INSURANCE
section 9.1. Insurance Coverage. Beginning on the
Possession Date and during the term of this Lease, Developer at
its sole cost and expense shall maintain or cause to be
maintained:
(a) Property Insurance. Insurance on the Developer
Improvements against All Risks of physical loss or damage,
including the expense of the removal of debris of such property
as a result of damage by an insured peril. Coverage shall be
written on as broad an All Risk form as is commercially
available. The insurance shall be written on a replacement cost.
basis. If the policy or policies of insurance contain a co-
insurance requirement, the policy or policies shall contain an
agreed amount endorsement. During the construction period,
property insurance may be provided on a Completed Value Builder's
Risk form. The City and Developer shall be listed as named
insureds on such Builder's Risk Policy. The term "Developer
Improvements", as used in this paragraph, shall be deemed to
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include all personal property furnished or installed on the
premises and owned by the Developer, and the insurance herein
provided shall cover the same.
The adequacy of the insurance coverage may be reviewed
periodically by the City Manager at his discretion. Any review
by the City Manager shall not constitute an approval or
acceptance of the amount of insurance coverage. In the event
that insurance proceeds are inadequate to rebuild and restore the
damaged improvements to substantially their previous condition
before an insurable loss occurred, and the cause of the
deficiency in insurance proceeds is the failure of the Developer
to adequately insure the Developer Improvements as required by
this Agreement, Developer must nevertheless rebuild and restore
such Developer Improvements pursuant to the terms hereof and must
. pay the entire cost of same notwithstanding the fact that such
insurance proceeds are inadequate.
(b) Mental value Insurance. Rental value insurance, so
that Developer will be insured against loss of rental income from
the improvements occasioned by any of the insured against perils
included in the Property Insurance policy during the period
required to rebuild, repair or replace the property• damaged,
which policy or policies of insurance shall expressly provide -by
endorsement thereon that the interest of the City as lessor under
this lease shall be covered to the extent earned, in an amount
equal to the total of Annual Basic Rental payable during said
period of business interruption. Rental Value Insurance shall
commence at•such time as Rentals are due and payable to the City.
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The adequacy of the Rental Value Insurance may be reviewed
periodically by the City Manager at his discretion. Any review
by the City Manager shall not constitute an approval or
acceptance of the amount of insurance coverage.
(e) Automobile Liability Tns„ranca, Automobile liability
insurance and equivalent policy forms covering all owned, non -
owned, and hired vehicles used in connection with any work
arising out of this Agreement. Such insurance shall afford
protection to at least a combined single limit for bodily injury
and property damage liability of $1,000,000 per occurrence. The
adequacy of the automobile liability insurance coverage may be
reviewed periodically by the City Manager at his discretion. Any
review by the City Manager shall not constitute an approval or
acceptance of the amount of insurance coverage.
(d) r.labi li is Insurance. Comprehensive General Liability.,
including contractual liability, or an equivalent policy form
.providing liability insurance against claims for personal injury
or death or property damage, occurring on or about the Leased
Property, the Developer Improvements, or any elevator, escalator,
or hoist thereon. Such insurance shall afford protection to at
least a combined single limit for bodily injury and property
damage liability of $1,000,000 per occurrence. The adequacy of
the liability insurance coverage shall be reviewed periodically
•by the City Manager at his discretion. Any review by the City
Manager shall not constitute an approval or acceptance' of the
amount of insurance coverage. Such liability and property damage
insurance shall also be placed in effect during the period of
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permitted access provided in Section 3.8 herein.
It is the City's intent that any liability insurance
provided pursuant to this* Section shall be deemed primary
insurance coverage in the event of any loss arising from the
premises and operations covered by this Agreement.
(e) Worker's Compensation. Worker's Compensation and
Employer's Liability insurance in compliance with Florida Statute
440. For work that is subcontracted, the Developer shall require
the subcontractor to provide Worker's Compensation insurance for
all of the subcontractor's employees.
(f) Copies. Developer shall furnish Certificates of
Insurance with the City named as additional insured for the
coverages• specified hereunder which shall clearly indicate that
Developer has obtained insurance in the type, amount and
classifigations herein required. Copies of all policies of
insurance and renewals thereof shall be furnished upon request of
.the City Manager by the Developer prior to the effective date
thereof. Copies of new or renewal policies replacing any
policies expiring during the term of this Lease shall be
delivered to the City Manager at*least thirty (30) days prior to
the date of expiration of any policy, together with proof
satisfactory to the City.that all premiums have been paid.
Section 9.2. Responsible Companies - Blanket Insurance
Permitted. All insurance provided for in this Article Ix shall
be effected under valid and enforceable policies issued by
insurers of recognized responsibility, which are licensed to do
business in the State of Florida. All such companies must be
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rated at least "A" as to management, and at least "Class X" as to
financial strength in the latest edition of Best's Insurance
Guide, published by Alfred M. Best Co., Inc., 75 Fulton Street;
New York, NY. The insurance required by this Article may be part
of another policy or policies of the Developer in which other
properties and locations are also covered so long as the amount
of insurance available to pay losses at this location is at least
the minimum required by this Section, and it cannot be reduced in
any manner by losses occurring at other properties or locations.
ca_t+nel l piti nn . All policies of insurance. described herein shall
name Developer and the City as insureds as their respective
interests may appear. The policies shall also name as insured,
if
required by
either party
or required
pursuant
to the terms of
any
Leasehold
Mortgage or
Financing
Sublease,
any Leasehold
Mortgagee as the interest of any such Leasehold Mortgagee may
appear. Notwithstanding any such inclusion, the parties hereto
agree that
any losses under such policy shall be
payable, and
all
insurance
proceeds recovered. thereunder shall
be applied
and
disbursed in accordance- with the- provisions of this Lease. All
insurance policies shall provide that no material change,
cancellation or termination shall be effective until at least
thirty (30) days after receipt of written notice thereof has been
received by the City. Each policy shall contain an endorsement
to the effect that no act or omission of the Developer shall
affect the obligation of the insurer to pay the full amount of
any loss sustained.
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Section 9.4. City May Procure Ins ranee if DeveloperPails
to Do So. In the event Developer at any time refuses, neglects
or fails to secure and maintain in full force and effect any or
all of the insurance required pursuant to this Agreement, the
City, at its option, may procure or renew such insurance, and all
amounts of money paid therefore by the City shall be treated as
Additional Rental payable by Developer to the City together with
interest thereon at the Default Rate from the date the same were
paid by the City to the date of payment thereof by Developer.
The City shall notify Developer in writing of the date, purposes
and amounts of any such payments made by it, which shall be
payable by Developer to the City within ten (10) days of such
notification.
Section 9.5. Tngnr nca Does Not Naive Developer's
Obligations. No acceptance or approval of any insurance
agreement or agreements by the City or the City Manager shall
relieve or release or be construed to relieve or release
Developer from any liability, duty or obligation assumed by, or
imposed upon it by the provisions of this Agreement.
Section 9.8. Loss or Damage -Not To Terminate Rental or This
Agreement. Any loss or.damage by fire or other casualty, of or
to any of the Improvements on the Leased Property at any time,
shall not operate to terminate this Agreement or to relieve or
discharge Developer from the payment of Rental, or from the
payment of any money to be treated as Additional Rent in respect
thereto, pursuant to this Agreement, as the same may become due
and payable, as provided in this Agreement, or from. the
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performance and fulfillment of any of Developer's obligations
pursuant to this Agreement.
Section 9.7. Proof of Loss. Whenever any Developer
Improvements, or any part thereof, constructed on the Leased
Property (including any personal property furnished or installed
in the premises) shall have been damaged or destroyed, Developer
shall promptly make proof of loss in accordance with the terms of
the insurance policies and shall proceed promptly to collect or
cause to be collected, all valid claims which may have arisen
against insurers or others based upon any such damage or
destruction, Developer shall promptly give City written notice of
such damage or destruction.
Section 9.8. ProRerty Insurance Proceeds.
(a) Authorized Payment. Except as otherwise provided in
subsection (a) of this Section 9.8, all sums payable for loss and
damage arising out of the casualties covered by the property
insurance policies small be payable:
(i) Directly to Developer, if the total recovery is
equal to or. less than the then fair market value of Developer's
property interest except that if Developer is then in default
under this Lease, such proceeds shall be paid over to City who
shall apply the proceeds first to the rebuilding, replacing and
repairing of the Leased Property and then to the caring of such
default. Any remaining proceeds shall be paid over to Developer;
(ii) To the Insurance Trustee, if the total recovery
is in excess of the amount described in (i) above to be held by
such Insurance Trustee pending establishment, of reconstruction,
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repair or replacement costs and shall be disbursed to Developer
pursuant to the provisions of subparagraph (b) o£ this Section
9.8. If, at the time such proceeds become payable, there is a
Leasehold Mortgage on the Leased Property, the Leasehold
Mortgagee shall serve as the Insurance Trustee, but if there's no
Leasehold Mortgage at that time, or if the Leasehold Mortgagee
refuses to serve as Insurance Trustee, the Insurance Trustee
shall, be such commercial bank or trust company as shall be
designated by Developer and approved by the City Manager, which
approval shall not be unreasonably withheld or delayed.
(b) nisDQsition of Tnc„rarn_e proeppd_a for Reconstruoti on.
All amounts received upon such policies shall be used, to the
extent required, the reconstruction, repair or replacement of the
Developer Improvements and the personal property of Developer.
contained therein, so that the Developer Improvements or such
personal property shall be restored to a condition -comparable to
the condition prior to the loss or damage (hereinafter referred
to as "Reconstruction Work"). From the insurance proceeds
received by the insurance Trustee, there shall be disbursed to
Developer such amounts as .are required for the Reconstruction
Work. Developer shall submit invoices or proof of payment to the
Trustee for payment or reimbursement in accordance with an agreed
schedule of values approved in advance by the City Manager.
Any amount remaining in the hands of the Insurance Trustee
after the completion of the Reconstruction Work shall be paid to
Developer.
(o) Lenders and Lend .r/Land nrds MaZ Have Benefit of
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TnsLTanee Fund Jor R constrUc ins, In the event Developer,
pursuant to any Leasehold Mortgage or Financing Sublease, shall
at any time authorize the Lenders or Lender Landlords on his
behalf or in his stead to enter upon the Leased Property and
undertake or prosecute the reconstruction or repair of any
building on the Leased Property damaged or destroyed by fire, or
other insured -against -hazard or peril and to have and receive for
Developer or Leasehold Mortgagees' use for such purpose such
insurance proceeds, then in that case said insurance proceeds
shall be equally available to such Leasehold Mortgagee as to
Developer as provided in subsection (b) of this Section 9.8, and
it shall in like manner and to like extent at the request of any
such Leasehold Mortgagee, be applied to the reconstruction or
repair of any such building so damaged or destroyed.
Section 9.9. Covenant for Co menCement and .omFletion of
Reconstruction. Subject to the provisions of Section 9.1(b) and
Section 9.10, Developer covenants and agrees to commence the
Reconstruction Work as soon as practicable but in any event
.within two (2) months after the insurances proceeds in respect of
the destroyed or damaged improvements or personalty have been
received, and to fully complete such Reconstruction Work as
expeditiously as possible consistent with the nature of the
damage, but in any event within twenty-four (24) months from the
start thereof; provided, that if it is not practicable to
commence such Reconstruction Work within such two (2) month
period, or to complete such Reconstruction Work" within such
twenty-four (24) month period, then such Reconstruction Work may
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be commenced and completed within a longer period, provided that
such period shall be approved in writing by the City Manager
after written request from Developer. As used in the preceding
sentence, the term "available net insurance proceeds" means the
sum actually paid by the insurer or insurers in respect of the
claim in question, less all costs and expenses incurred by
Developer or the Insurance Trustee in the collection, holding and
disbursement of same, including (without limitation) reasonable
attorneys' fees.
Section 9.10. Developer's Rights In the Event of Uninsured
Maior Casualty. In the event -any part of the Developer
Improvements or the Leased Property is damaged or destroyed by
reason of any casualty which is not required to be insured
against pursuant to Section 9.1 and is not in fact insured
against, then at Developer's option, in lieu of rebuilding,
replacing or repairing the portion of the Developer Improvements
or the Leased Property so damaged or destroyed, Developer may
give notice to the City, within twenty-four (24) days after the
occurrence of such damage or destruction, of Developer's election
to terminate this Lease as to the portion of the•Improvements or
the* Leased Property so damaged or destroyed and this Lease shall.
thereupon terminate as to such portion of the Leased Property and
Developer shall have no further obligation hereunder with respect
thereto, except that, if the City shall so request within sixty
(60) days after such notice is given. Developer shall, at its
expense, promptly demolish any buildings or other improvements
situated on the portion of the Leased Property as to which this
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Lease shall have been terminated and shall clear and grade such
portion of the Leased Property. The City and Developer shall, at
the request of either, execute such instruments or documents as
may be reasonably necessary or desirable in order to amend this
Lease to delete such portion of the Leased Property from the
description of the property demised hereby, if the Improvements
or -the Leased Property which were uninsured, or for which there
were no insurance proceeds, shall be substantially damaged or
destroyed on any single casualty so that the Developer
Improvements or the Leased Property shall be unsuitable for
restoration for Developer's continued use and occupancy in
Developer's business, then at Developer's option, in lieu of
rebuilding, replacing or repairing the Developer Improvements or•
.the Leased Property as provided in this Lease, Developer may give
notice to the City, within thirty (30) days after the occurrence
of such damage or destruction, of Developer's intention to
terminate this Lease on any business day specified in such notice
which occurs not less than forty-five (45) nor more than sixty
(60) days after the date of such damage or destruction, provided
that such notice shall be accompanied by a certificate of the
Developer, signed by the appropriate officer or general partner,
stating that in the reasonable judgment of Developer, the
Improvements and the Leased Property are economically unsuitable
for Developer's continued use and occupancy by reason of such
damage or destruction. This Lease shall thereupon terminate on
such termination date, except with respect to obligations and
liabilities of Developer under this Lease, actual or contingent,
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which have arisen on or prior to such date. Upon giving any such
notice of termination of this Lease Developer shall, upon the
City's request at Developer's expense promptly demolish any
building or other remaining improvements and shall clear and
grade the Leased Property.
ARTICLE X
Section 10.1. Entire Leased P_rOp2r y Taken by Cond-mnatimn.
In the event that the whole of the Leased Property and Developer
Improvements (or'such portion thereof as shall, in the good faith
opinion of Developer, render it economically unfeasible to effect
restoration thereof) shall be taken for any public use or purpose
by the exercise of the power of eminent domain, or shall be
conveyed by the City and Developer and individual owners of
Developer Improvements or portions thereof acting jointly to
avoid proceedings of such taking, the Rental and money to be
treated as Additional Rental pursuant to this Agreement and the
Public Charges shall be prorated and paid by the Developer to the
date of such taking or conveyance, and this Lease•shall terminate
and become null and void as of the date of such taking or
conveyance. The award or awards of damages allowed to the City
or Developer shall be paid as follows:
First: There shall be paid all expenses if any
including reasonable attorneys' fees incurred by the
City and Developer and individual owners of Developer
Improvements or portions thereof in such condemnation
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suit or conveyance (except that nothing contained in
this Article shall require payment to the City of costs
and expenses it may incur as the condemning authority);
Second: City and Developer shall be paid portions of
the balance of said award or awards which are allocable
to and represented by the value of their respective
interest in the Leased Property as found by the court
or jury in its condemnation award or if no such
separate awards are obtained such balance shall be paid
to Developer and the City in the same proportion as the
then Fair Market Value of each party's respective
Interest or estate* in the Leased Property and the
Developer Improvements bears to the total Fair Market
Value of the interests and estates of both parties in
the Leased Property and Developer Improvements within
thirty (30) days of the time of the taking. .
Section 10.2. Partial Taking of Leased -Property by
Ca) In the event that less than all of the Leased Property
or Improvements• shall be taken for any public use or purpose by
the exercise of the power of eminent domain, or shall be conveyed
by the City and Developer and individual owners of Developer
Improvements or portions thereof acting jointly to avoid
proceedings of such taking, and Developer shall be of the good
faith opinion that it is economically feasible to effect
restoration thereof then this Lease and all the covenants
conditions and provisions hereunder shall be and remain in full
•
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force and effect as to all of the Leased Property not so taken or
conveyed (except as provided in subsection (c) of this Section
10.2 and in Section 10.3). Developer shall to the extent
condemnation proceeds are made available to it pursuant to the
terms hereof, remodel repair and restore the Developer
Improvements so that they will be comparable to the Developer
Improvements prior to the condemnation taking into consideration
the fact of the condemnation; provided however that in so doing
Developer shall not be .required to expend more than the amount of
any such award actually received by Developer less all costs and
expenses (including reasonable attorneys' fees) incurred in the
collection of same.
(b) The award or awards of damages allowed to City and
Developer and individual owners of Developer Improvements or
portions thereof shall be paid to and received by the parties as
follows:
First: There shall be paid all expenses, if any,
including any reasonable attorneys fees incurred by
City and Developer and individual owners of Developer
Improvements or portions thereof in such condemnation
suit or conveyance;
Second: There shall be paid to the City the value of
the portion of the land so taken which land shall be
valued as if unimproved and unencumbered;
Third: There shall be paid to the Developer the amount
required to complete the remodeling and repairs to the
.Developer Improvements pursuant to (a) above;
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8'7r:141.1
Fourth: City and Developer and individual owners of
Developer Improvements or portions thereof shall be
paid portions of the balance of said award or awards if
any which are allocable to and represented by the value
of their respective interest in the Leased Property as
found by the court or jury in its condemnation award,
or if no such separate awards are obtained, such
balance shall be paid to Developer and the City in the
same proportion as the then Fair Market Value of each
party's respective interest or estate in the Leased
Property and the Developer Improvements bears to the
total Fair Market Value of the interests and estates of
both parties in the Leased Property and Developer
Improvements.
Section 10.3. Adjustment of Rent Upon Partial T kid. In
the event a part of the Leased Property and the Developer
Improvements thereon if any,'shall be taken for any public use or
purpose by the exercise of the power of eminent domain, or shall
be conveyed by City and Developer acting jointly to avoid
proceedings of such taking then Rental and money to be treated as
Additional Rental pursuant to this Agreement and the Public
Charges in respect of such part of the Leased Property shall be
paid by Developer to the date.of such taking or conveyance and
after such date the Rent for the remainder of the Leased Property
shall be reduced by such an amount as may be agreed upon in
writing by the parties hereto.
Section 10.4. Taking for Temporary Use 'or of L -a.sehn1 d
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8'7-141, .1
Estate. If, by the exercise of the power of eminent domain or
under threat thereof the whole or any part of the Leased Property
or the Developer Improvements shall be taken for temporary use or
the whole or any part of the leasehold estate created by this
Lease shall be taken all awards or other payments shall be paid
only to Developer and individual owners of Developer Improvements
or portions thereof alone except that:
(i) if any portion of any such award or payment on
account of a taking for temporary use is made by reason of any
damage to or destruction of any portion of the Developer
Improvements, such portion shall be applied to pay the cost of
restoration; and
(ii) if any portion of an award or payment on account
of a taking for temporary use relates to•a period beyond the date
of expiration of the term of this Lease, such portion shall be
paid to the City; and
(iii) all payments of Annual Basic Rental by the
Developer shall continue as if no condemnation had taken place.
For the purposes of this Section 10.4. Rentals payable shall be
the Average Annual Basic Rentals payable in the immediate 3 year
period prior to the notice of taking by condemnation or the
period of time since the Possession Dates whichever period is
lesser. In the event the taking for temporary use continues for
over 1 year, the, Annual Basic Rental due for each consecutive
year shall be increased by the percentage increase in the
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8'7r141 *1
Consumer Price Index,. or, if not available, such equivalent
index.
ARTICLE XI
Section 11.1. Quiet Enjoyment. The City represents and
warrants that Developer, upon paying the Rental pursuant to this
Agreement and observing and keeping the covenants. and agreements
of this Agreement on its part, to be kept and performed shall
lawfully and quietly hold occupy and enjoy the Leased Property
without hindrance or molestation by the City during the term of
this Agreement or by any person or persons claiming under the
City.
Section 11.2. Waste. Developer shall not permit commit* or
suffer waste or impairment of the Leased Property or the
Developer Improvements thereon, or any part thereof.
Section 11.3. Mairtenanne and Operation of Den_lomer.
Im2rovements..Developer shall at all times keep the improvements
constructed on the Leased Property and all furnishings located
therein in good and safe condition and repair as other first
class projects in similar usage are kept (reasonable wear and
tear expected), and in the occupancy, maintenance and operation
of such Developer Improvements, and of the Leased Property, shall
comply with all laws, ordinances codes and regulations
applicable thereto. Developer shall develop a Mainte-uance Plan
for the City's review.
Section 11.4. Ownership of Improvementg During Lease.
Prior to the expiration or termination of this Lease title to the
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Developer. Improvements shall not vest in the City by reason of
its ownership -of fee simple title to the Leased Property but
title to such Developer Improvements shall remain in Developer
and any individual owners of the Developer Improvement nr
portions thereof. If this Lease shall terminate prior to the
expiration of the term hereof and if, at that time, any Leasehold
Mortgagee shall exercise its option to obtain a new lease for the
remainder of the term of this Lease pursuant to Article VI, then
title to the Developer Improvements shall automatically pass to
vest in and belong to such Leasehold Mortgagee or any designee or
nominee of such Leasehold Mortgagee permitted hereunder, until
the expiration or sooner termination of the term of. such new
lease. The City and Developer covenant that to confirm the
automatic vesting of title as provided in this paragraph, each
will execute and deliver such further assurances. and instruments
of assignment and conveyance as may be required by the other for
that purpose. During the term of this Lease, Developer shall be
entitled to claim depreciation on the Improvements and all
equipment, fixtures and machinery therein. contained for all
taxation purposes.
Section 11.5. Surrender of Leased Proy�rtg. Upon the
expiration of the Lease term, or upon termination of this
Agreement and the Lease term hereunder in respect to the Leased
Property, title to the Developer Improvements shall vest in the
City and it shall be lawful for the City to re-enter and
repossess the Leased Property and the Developer Improvements
thereon without process of law. and Developer. in such event does
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hereby waive any demand for possession thereof and agrees to
surrender and deliver the Leased Property and .the Developer
Improvements thereon without process of law peaceably to the City
immediately upon such expiration or termination. In the event a
portion of the Developer Improvements are condominiums, title to
those Developer Improvements shall remain with. the respective
owners.
Section 11.6. City and nevelomer to Join in Certain
Actions. Within ten (10) days after receipt of written request
from Developer, the City shall:
(a) Join Developer when required by law in any and all
applications for permits, licenses or other authorizations
required by any governmental or public authority which has
jurisdiction in connection with any work as may be reasonably
necessary or appropriate for the construction of the Developer
Improvements to be constructed by Developer on the Leased
Property; and
(b) Join Developer in any grants of, or grant such
easements or rights with respect to vehicular access electric
telephone, gas, water, sewer, 'steam and such. other public
utilities and facilities as may be reasonably necessary or
appropriate for the construction, operation or use of the Leased
Property or any Developer Improvements to be erected by Developer
thereon Developer shall pay all fees and charges for all such
applications and grants.
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ARTICLE XII
Section 12.1. No Partnership or Joint Venture. It is
mutually understood and agreed that nothing contained in this
Agreement is intended or shall be construed in any manner or
under any circumstances whatsoever as creating or establishing
the relationship of co-partners, or creating or establishing the
relationship of a joint venture between the City and Developer,
or as constituting Developer as the agent or representative of
the City for any purpose or in any manner whatsoever.
Section 12.2. Recording. Documentary Stamps. This
Agreement, or a memorandum hereof in form mutually satisfactory
to the parties, shall.be recorded among the Land Records of Dade
County, State of Florida and either party may cause any
modification or addition to this Lease or any ancillary document
relevant to this transaction to be so recorded and the cost of
any such recordation, cost of any State of Florida documentary
stamps which legally must be attached to any or all of said
papers and
the cost
of
the
applicable Dade County and State
transfer tax
shall be
paid
in
full by Developer.
Section 12.3. Florida and Local Laws Prevail. This
Agreement shall be governed by the laws of the State of Florida.
This Agreement is subject to and shall be interpreted to
effectuate its compliance with the Charter of the City of Miami,
the City of Miami Code and the Dade County Charter and Code. Any
conflicts between this Agreement and the aforementioned Codes and
Charters shall be resolved in favor •of the latter. If any term
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covenant or condition of this Lease or the application thereof to
any person or circumstances shall to any extent, be illegal,
invalid, or unenforceable because of present or future laws or
any rule or regulation of any governmental body or entity or
becomes unenforceable because of judicial construction the
remaining terms, covenants and conditions of this Lease, or
application of such term, covenant or condition to persons or
circumstances other than those as to which it is held invalid or
unenforceable, shall not 'be affected thereby and each term,
covenant, or condition of this Lease shall be valid and be
enforced to the fullest extent permitted by law.
Contemporaneously with the execution of this Agreement, the City
Attorney has delivered an opinion to Developer opining that the
execution and delivery hereof by the City is in compliance with
the Charter of the City of Miami, the City of Miami Code and the .
Dade County Charter and Code.
Section 12.4. Co flict-q of Interests City Re;resentatives
Not Individuallg,Liable. No member, official, representative, or
employee of the City or the City Manager 'shall have any personal
interest, direct or indirect, in this Agreement-, nor shall any
such member, official, representative or employee participate in
any decision relating to this Agreement which affects•his or her
personal interest or the interest of any corporation, partnership
or association in which he or she *is, directly or indirectly,
interested. No member, official, representative or employee of
the City or the City Manager shall be personally liable to
Developer or any successor in interest in the event of any
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default or breach by the City or the City Manager or for any
amount which may become due to Developer or successor or on any
obligations under the terms of this Agreement.
Section 12.5. Notice. A notice of communication under this
Agreement by either the City or the City Manager, on the one
hand, to Developer, or, on the other, by Developer to the City or
the City Manager shall be sufficiently given or delivered if
dispatched by registered or certified mail, postage prepaid,
return receipt requested; and
(a) Developer. In the case of a notice or communication to
Developer, if addressed.as follows:
Circa Limited
City of 'Miami
628 West Rittenhouse Street
Philadelphia, Pennsylvania 19144
(b) Developer's Records. Developer's original duplicate
books and records in auditable form as required in Section 2.5(d)
shall be kept and be -available to the City during normal business
hours at its principal place of business in the City of Miami.
(c) City Manager. In the case of a notice or communication
to the City or the City Manager, if addressed as follows:
City Manager
3500 Pan American Drive
Miami, Florida 33133
or if such notice is addressed in such gther way in respect to
any of the foregoing parties as that party may, from time to
time, designate in writing, dispatched as provided in this
Section 12.5.
Section 12.6. EstoFyel Certificates. The City and
Developer shall at any time and from time to time, within thirty
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CGS
(30) days after written request by the other, execute,
acknowledge and deliver to the party which has requested the same
or to any prospective Leasehold Mortgagee, assignee or Subtenant
designated by Developer a certificate stating that (i) the Lease
is in full force and effect and has not been modified,
supplemented or amended in any way, or, if there have been
modifications, the Lease is in full force and effect as modified,
identifying such modification agreement, and if the Lease is not
in force and effect, the certificate shall so state; (ii) the
Lease as modified represents the entire agreement between the
parties as to this leasing, or, if it does not. the certificate
shall so state; (III) the dates on 'which the term of this Lease
commenced and will terminate; (iv) all conditions under the Lease
to be performed by the City or Developer, as the case ,may be,
have been satisfied and, as of the date of such certificate,
there are no existing defenses or offsets which the City or
Developer, as the case may be, has against the enforcement of the
Lease by the other party, or, if such conditions have not been
satisfied or if there are any defenses or offsets, the
certificate shall so state; and •(v) the rental .due and payable
for the year in which such certificate is delivered has been paid
in full, or, if it has not been paid, the certificate shall so
state. The party to whom any such certificate shall be issued
may rely on the matters therein set forth and thereafter the
party issuing the same shall be estopped from denying the
veracity or accuracy of the same. Any certificate required to be
made by the City pursuant to this paragraph may be made on its
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J
behalf by the City Manager.
Section 12.7. provisions Not Merged with need. None of the
provisions of this Agreement are intended to or shall be merged
by reason of any deed U) transferring Developer's leasehold
estate in the Leased Property and Developer Improvements or any
part thereof from the Developer (or its successors or assigns) to
the City (or its successors or assigns), or (ii) transferring
title to the Leased Property or any part thereof from the City to
Developer, its successors or assigns and any such deed shall not
be deemed to affect or impair the provisions and covenants of
this Agreement.
Section 12.8. Titlas of Articles and Sections. Any titles
of the several parts, Articles and Sections of this Agreement are
inserted for convenience of reference only and shall be
disregarded in construing or interpreting any of its provisions.
Section 12.9. Countertarts. This Agreement is executed in
six (6) counterparts, each of which shall be deemed an original,
and such counterparts - shall constitute one and the same
instrument. This Agreement shall become effective only upon
execution and delivery of this Agreement by the parties hereto
and execution and delivery of all Exhibits referred to in Section
1.1.
Section 12.10. Non -Disturbance and Attornnent. The City
covenants and agrees with Developer for the benefit of any and
all Subtenants or Condominium Owners occupying any part of the
Leased Property or the Developer Improvements from time to time,
that in the event of a termination of this Lease, the possession
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8'7:-141.1
of each such Subtenant or Condominium Owner shall not be
disturbed so long as such Subtenant or Condominium Owners shall
not be in default under its Sublease, provided such Subtenant
shall attorn to the City. This nondisturbance agreement shall be
self -operative and no further agreement between the City and any
such Subtenant or Condominium Owner shall be necessary to effect
the same, however, the City agrees from time to time, promptly
upon request of Developer or any Subtenant or Condominium Owner,
it will enter into agreements with the Developer and any such
Subtenant or Condominium Owner confirming such nondisturbance
agreement. Any such confirmatory agreement may be made on behalf
of the City by the City Manager . In the event of a termination
of this Lease, each Subtenant or. Condominium Owner shall attorn
to the City. Developer covenants that each Sublease or
Condominium Agreement to which it shall be a party shall contain '
a clause expressly providing that the Subtenant or Condominium
Owner thereunder shall attorn to the City in the event of a
termination of this Lease, but the absence of such a clause.from
any -Sublease or Condominium Sale Agreement shall not relieve the
Subtenant Condominium Owner from -the provisions .of this Section
12.10.
Section 12.11. Zjon-Discrimination' and. Equal Opmnztunity..
Developer will use affirmative efforts to seek and offer to
minority -controlled businesses the opportunity to lease such
portions of the Leased Property as may from time to time become
available in accordance with the Minority Participation Agreement
attached hereto as Exhibit G.
OEM
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Section 12.12. Successors and Assigns. Except to the
extent limited elsewhere in this Lease, all of the covenants
conditions and obligations contained in this Lease shall 'be
binding upon and inure to the benefit of the respective
successors and assigns.of the City and the Developer.
Section 12.13. Exoulpation. Notwithstanding any provision
contained in this Lease to the contrary, it is specifically
agreed and understood that there shall be absolutely no personal
liability on the part of Developer or any individual
stockholders, officers, directors, partners (general and limited)
or co -venturers of Developer or any assignee or successor -in -
interest of Developer with respect to any of the obligations,
terms covenants and conditions of this Lease, such exculpation of
personal liability to be absolute and without any exception
whatsoever.
Section 12.14. Entire Agreement.
This instrument and its attachments constitute the sole and
only Agreement of the parties hereto and correctly sets.forth the
rights, duties, and obligations of each to the other as of its
date. Any prior agreements; promises, negotiations, or
representations not expressly set forth in this Agreement are of
no force or effect.
Section 12.15. Amendments.
No amendments to this Agreement shall be binding on either
party unless in writing and signed by both parties.
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ARTICLE XIII
ARBITRATION
Section 13.1. Panel. A panel of arbitrators ("Arbitration
Panel") shall be established when required by this Agreement.
(i) The appointments to the panel shall be made in the
following manner:
(a) The City shall name one member;
(b) 'Developer shall name one member; and
(c) The aforesaid members shall promptly name a third
member.
(ii) Every member of the Arbitration Panel must be member
of the American Institute of Real Estate Appraisers.
(iii) If either party shall fail to designate a member
within fifteen (15) days after a written request so to do by the ,
other party, then such other party may request the President of
the Florida Chapter of the American Arbitration Association to
designate a member, who when so designated -shall act in -the same
manner as if he had been the member designated by the party so
failing to designate an arbitrator. If the two members are
unable to agree upon a third member within ten (10) days from the
last date of designation, such third member shall be designated
by the President of the Florida Chapter of the American
Arbitration Association, upon the request of either of the two
members.
Section 13.2. ACtionG Hearings and Decisions. All
actions, hearings and.decisions of the Arbitration Panel.shall be
conducted, based upon and .in accordance. with the Commercial
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Arbitration Rules of the American Arbitration Association. In
all controversies, disputes or claims with respect to the
evaluation of real estate referred to Arbitration under the
provisions of this Agreement, the Arbitration shall be conducted
in accordance with the Real Estate Valuation Rules of the
American Arbitration Association. In determining any matter
before them, the Arbitration Panel shall apply the terms of this
Agreement, and shall not have the power to vary, modify or reform
any terms or provisions of the Agreement in any respect. The
Arbitration Panel shall afford a hearing to the City and to the
Developer and the right to submit evidence with the privilege of
cross-examination on the question at issue. All arbitration
hearings shall be held at a place designated by the Arbitration
Panel in Dade County, Florida.
A hearing shall be commenced within sixty (60). days
following the selection of the last of the three arbitrators. A
court reporter shall make a transcript of the hearing. The
parties and the Arbitration Panel shall use their best efforts to
conclude the hearing within ten days. The parties shall be
entitled to such pre-trial discovery as they may Agree, or as
determined by the Arbitration Panel. The Arbitration Panel shall
have the right to question witnesses at the hearing, but not to
call witnesses. The Arbitration Panel may grant continuances for
good cause or with the agreement of both parties. The
Arbitration Panel may render a decision at the close of the
.hearing, or may request briefs on any or all issues. Any and all
such briefs, including reply briefs, shall be filed with the
jrZ
S 7-1:41:.1
0
0
terms and on the schedule set by the Arbitration Panel, but in
any event no Later than forty-five (45) days following the
commencement of the hearing. The Arbitration Panel shall render
a determination within sixty (60) days from the conclusion of the
hearing. If no determination is. rendered within such time,
unless the parties agree otherwise, a new Arbitration Panel shall
be selected as described above, but the new Arbitration Panel
shall render a determination solely upon review of the record of
the hearing without a further hearing.
The Arbitration Panel selected hereunder shall agree to
observe the Code of Ethics for Arbitrators in Commercial Disputes
promulgated by the American Arbitration Association and the
American Bar Association, or any successor code. The decision of .
a majority with respect to any matter referred to it under this
Lease shall be final, binding and conclusive on the City and
Developer and enforceable in any court of competent jurisdiction.
Together with the determination, the Arbitration Panel shall
provide a written explanation of the basis for the determination.
Each party shall pay the fees and expenses of the member of the
Arbitration Panel designated by such party, such.party's counsel
and witness fees, and one-half (1/2) of all expenses of the third
member of the Arbitration Panel.
IN WITNESS WHEREOF, Circa/Barness/Sawyer, a General
Partnership, has caused -this Lease Agreement to be signed in its
name by a General Partner and duly witnessed and the CITY
COMMISSION OF MIAMI, has caused this Lease Agreement to be signed
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8'7-141 *1
in its name by Cesar H. Odio, the CITY MANAGER, and duly attested
to by the CITY CLERK, on the day and year first above written.
WITNESSES: CIRCA/BARNESS/SAWYER,
DEVELOPER
By
(Title)
ATTEST:
MATTY HIRAI
City Clerk
APPROVED* AS TO INSURANCE
REQUIREMENTS:
Division of Risk Management
LGK/wpo/pb/M005
2/4/87 3:45 p.m.
-101-
CITY OF MIAMI, a munioipal
Corporation of the State of
Florida
By
CESAR ODIO
City Manager
APPROVED AS TO FORM AND
CORRECTNESS: .
'By:
LUCIA A. DOIIGNERTY
City Attorney
I iy
Exhibit A
Survey and Plat
(To be provided.)
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Exhibit & �
Site Plan 6 Elevations
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Exhibit c
Legal Description
Lots 1-7 and 14-20 of Block 55N, A.
L. Knowlton Map of Miami (B-41).
fib
0 0
Exhibit 0
Performance Bond
(To Be Proyided),
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87- 41 of
Exhibit E
Concept Plans
Stage I of th-e Circa/Barness/Sawyer development program calls for
the construction of 164 rental housing units and 10,000 square
feet of commercial space on Lots 1-7 and 14-20 of Parcel 55.
(Parcel 55 is located between N.W. Sixth and Seventh Streets and
N.W. Third and Second Avenues.) * The development will include a
12-story, 143 unit apartment building kngwn as The Odessa and two
(2), three-story buildings containing flats and loft apartments.
The Odessa will incorporate Art Deco elements, such as glass
block and neon, in a contemporary design. The building will
include efficiency, and one and two bedroom units with a variety
of floor plans. Top floors will feature bi-level loft plans, and
one-half of the two bedroom units will feature dual master
suites. All units will have balconies (many with downtown and
bay views); walk-in closets; designer bathrooms; European styled
kitchens; and tiled foyers. Laundry rooms will be located on
each floor of the building.
The ground floor of The Odessa will have restaurant/cafe space
oriented towards Odessa residents as well as employees of nearby
government office buildings. Additionally, a three level parking
structure will be connected to The Odessa via a covered walkway.
The two (2) three-story buildings will feature one bedroom
courtyard- apartments and artist loft studios with outdoor decks.
The loft studios are designed to provide moderately priced
working/living space for full-time artists.
The site will be heavily landscaped with flowering plants and
some of the existing mature trees on the site will be preserved
to enhance the outdoor ambiance. Residents will have access to a
swimming pool and tennis courts in the development.
/ Z!
87:-141 #1
Exhibit E
Concept Plans
Stage I of the Circa/Barness/Sawyer development program calls for
the construction of 164 rental housing units and 10,000 square
feet of commercial space on Lots 1-7 and 14-20 of Parcel 55.
(Parcel 55 is located between N.W. Sixth and Seventh Streets and
N.W. Third and Second Avenues.) The development will include a
12-story, 143•unit apartment building known as The Odessa and two
(2), three-story buildings containing flats and loft apartments.
The Odessa will incorporate Art Deco elements, such as glass
block and neon, in a contemporary design. The building will
include efficiency, and one and two bedroom units with a variety
of floor plans. Top floors will feature bi-level loft plans, and
one-half of the two bedroom units will feature dual master
suites. All units will have balconies (many with downtown and
bay views); walk-in closets; designer bathrooms; European styled.
kitchens; and tiled foyers. Laundry rooms will be located on
each floor of the building.
The ground floor of The Odessa will have restaurant/cafe space
oriented towards Odessa residents as well as employees of nearby
government office buildings. Additionally, a three level parking
structure will be connected to The Odessa via a covered walkway.
The two (2) three-story buildings will feature one bedroom
courtyard apartments and artist loft studios with. outdoor decks.
The loft studios are designed to provide moderately priced
working/living space for full-time artists.
The site will be heavily landscaped with flowering plants and
some of the existing mature trees, on the site will be preserved
to enhance the outdoor ambiance. Residents will have access to a
swimming pool and tennis courts in the development..
/21
87r:t4�,.1
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EXHIBIT G
MINORITY PARTICIPATION AGREE14ENT
This minority Participation Agreement ("this Agreement")
made this day of 1986, by and between the City
of Miami, a municipal corporation of the State of Florida ("the
City") acting by and. through the City Manager ("the City
Manager") and Circa, Ltd. of Miami, Inc., ("Developer").
RECITAL
WHEREAS, by authority of the City of Miami Charter, the City
on July 31, 1984 authorized the publication of a Request for
Proposals (RFP) for the Unified Development Project to be known
as Southeast Overtown/Park West Redevelopment Project Phase I
Development; and
WHEREAS, Developer in response to said RFP submitted a
proposal to develop a residential project to be known as "the
Odessa" ("the Project") on the land owned in fee simple•by the
City located between Northwest 2nd Avenue, Northwest 3rd Avenue,
Northwest 6th Street, and Northwest 7th Street, in the City of
Hiami, County of Dade, State of Florida, which is collectively
referred to herein as Block 55; and
WHEREAS, the City has accepted the Developer's proposal for
the Project and the City and the Developer have executed -a Lease
for Block 55 for the purposes set forth in the RFP and the
proposal submitted by Developer; and
WHEREAS, the City and Developer are particularly aware of
the efforts needed to provide opportunities for local minority
participation in development undertakings; and
WHEREAS, it is the mutual desire of the parties to set forth
their agreement and understanding of the goals for minority
participation in.the project.
NOW, THEREFORE, in consideration of the foregoing and the
covenants and agreements hereinafter set forth, the parties
covenant and agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Defined Terms. As used herein the term:
8'7-141.1
"this Agreement" means this Minority Participation
Agreement, as the same may be modified or amended
from time to time provided that any such modifica-
tion or amendment must be consented to by a four -
fifths (4/5ths) vote of the Miami City Commission.
"the City" has the meaning ascribed to it in the
opening paragraph of this Agreement.
"the City Manager" has the meaning ascribed to it
in the opening paragraph of this Agreement.
"Construction Contracts" means those certain agree-
ments between the Developer and its general con-
tractor for construction of the Developer Improve-
ments, and includes subcontracts with respect to
such work between the general contractor and sub-
contractor.
"Department" means the City's Department of Develop-
ment or departmental staff.
"Developer" has the meaning ascribed to it in'the
opening paragraph of this Agreement.
"Developer Improvements" has the meaning ascribed
to it in the Statement of Background and Ptirpose
in the Lease.
"Minority" means the following persons as defined
in the following definitions as approved by O.S.
Department of Housing and Urban Development
("H.U.D.") or as may be changed by H.U.D. from
time to time:
(a) Black (all persons having origins in
any of the•Black African racial groups
not of -Hispanic origin); and
(b) Hispanic (all persons of Mexican, Puerto
Rican, Cuban, Central or South American
or other Spanish culture or origin
regardless of race).
"Iinority Business Enterprise" means a corporation,
partnership, individual, sole proprietorship, joint
stock company, joint venture or other legal entity
which is at least 51% owned by a minority or at
least 51% of the stock outstanding is individually
or collectively owned by a Minority.
"Overtown Jobs Program ("OJP")" means the City
funded job development program or program staff.
rIL
0
"Project" has the meaning ascribed to it in the
Recital.
"Section", "subsection", "paragraph",
"subparagraph", "clause", or "subclause"
followed by a number or letter means the section,
subsection, paragraph, subparagraphs, clause or
subclause of this Agreement so designated.
Section 1.2. Terms in the Lease. All other capitalized
terms shall have the meanings ascribed to them in -the Lease.
ARTICLE II
EQUITY PARTICIPATION
Section 2.1. Goal. Developer agrees to afford property
owners of the development site, Block 55, the opportunity to join
the development team as an equity participant in exchange for a
financial equity contribution.
Section 2.2. Developer Obligation. The Developer shall at
a minimum correspond with property owners in writing and if
necessary personally contact property owners to inform them of
the Project's investment opportunities.
ARTICLE III
CONSTRUCTION.CONTRACTS
Section 3.1.* General Contractor. Developer shall notify
City of its selection of a local General Contractor upon
consummating an agreement. In the event an out-of-town con-
tractor is selected the City Commission's approval of the
contract is required.
Section 3.2. Goals. Develop.er agrees to exert diligent,
good faith efforts to award fifty-seven percent' (57%) of the
total contract price (without duplication) of all construction
contracts to Minority Business Enterprises, as follows:
a. Twenty-five percent (25%)
to Black contractors.
b. Twenty-five percent (25%)
to Hispanic contractors.
c. Seven per cent (7%) to
female contractors.
Section 3.3. Developer's Obligation.- The Develope-r's
diligent, good faith efforts shall include, but not be limited to
the following:
IZ?
8` r141 of
a. Encouraging joint ventures between minority
contractors and non -minority contractors.
b. As permitted by the project budget, subcontracts
may be awarded to qualified minority Business
Enterprises even if that Minority Business Enter-
prise is not the lowest bid in order to meet the
goal established in Section 33.
C. To the extent feasible, providing for small sub-
contracting packages in an effort to obtain bids
from qualified minority business enterprises.
d. Attending meetings with minority contractors to
provide them with an update on each phase of con-
struction prior to advertising for bids.
e. Advertising -for bids in the Black and Hispanic
media to include newspaper publications and radio
announcements.
f. Establishing a payment, schedule whereby minority
subcontractors' requisitions for payment will be
processed in a timely manner so as to avoid
creating a cash flow problem. Said payment
schedule shall be included in the Agreement
between the general contractor and subcontractor.
g. Advising minority contractors, who are awarded
.subcontractors, who may request, or in Developer's
judgement, may need assistance on the development
of managerial skills necessary to coordinate their
contract with other contracts in the Project.
h. Encouraging Developer's general contractor and
subcontractors to purchase reasonably priced
materials, supplies -and equipment for work to be
performed on the Project from Minority Business
Enterprises.
i. Waiving bonding , requirements for qualified
minority Business Enterprises where practicable.
j. Requiring general contractor to certify the
minority bidders prior to awarding subcontracts,
to insure that the companies are owned, controlled
and operated by said minority. The Department
shall review and verify all such certifications.
The certification and verification forms are
attached as Attachments A and B respectively.
87-141: e1
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k. Encouraging General Contractor to award sub-
contracts to local Minority Business Enterprises.
City Commission approval is required for subcon-
tracts awarded to out-of-town contractors.
Developer agrees that prior to the deadline for receiving
and opening the bids, cost estimates for the Project shall be
submitted to the City Attorney's Office. The City Attorney or
her designee and a representative from the Department shall
witness the bid openings.
It is understood that the City will not transfer possession
of the Leased Property or Future Leased Property to Developer
until potential subcontractors for the Project have been
identified and Developer has clearly demonstrated that diligent,
good faith efforts are being put forth to meet the goals
established for minority contractors' participation in the
Project.
ARTICLE IV
CONSTRUCTION HIRING
Section 4.1. Goal. Fifty percent (50%) of all construction
jobs are to be -filled by Blacks. Developer agrees that where
practical and with the assistance of the OJP, Developer -shall put
forth diligent, good faith efforts to fill such construction jobs
with City of Miami residents before extending the opportunity to
Dade County residents.
Section 4.2. Developer's Obligation. The Developer's
diligent, good faith efforts shall include, but not be limited to
the following:
a. Utilizing the OJP as the central screening and
referral source for construction employment.
After the subcontracts are awarded, Developer
shall inform the OJP of the number -of laborers
needed for each construction trade at least ten
(10) days in advance of the work commencement
date for said laborers a copy of the Job Order
Form is attached as Attachment C.
b. in the event laborers are to be replaced during
the course of construction, notifying the OJP for
assistance in identifying the replacements. The
OJP shall make its referral to Developer within
three (3) working days. The construction hiring
goal is not cumulative therefore regardless of the
turnover rate, the hiring goal shall remain
constant throughout the construction of the
Project.'
2_`
87-1414.
L�
c. To the extent feasible, assisting laborers in
upgrading their skills.
ARTICLE V
PROFESSIONAL SERVICE CONTRACTS
Section 5.1. Developer agrees to use diligent, good faith
efforts to hire consultants and professional service firms, that
are either minority owned or who have entered into subcontracts
with minority owned firms in connection with the development of
the Project.
Developer has engaged the services of the following minority
firms for this Project:
a. ASSOCIATE DEVELOPERS
William and Berniece Sawyer
160 N.W. 7th Street
Miami, Florida 33136
b. PROPERTY MANAGERS
Rolle Realty Associates
241 N.W. 17th Street
Miami, Florida 33127
c. ARCHITECTS AND PLANNERS
Allen and Associates
4547 Ponce de Leon Blvd.
Coral Gables, Florida
Ronald E. Frazier Associates
5800 N.W. 7th Street
Miami, Florida 33127.
The Architectural Office of
George Lopez & Associates
7245 S.W. 87th Avenue
Miami, Florida 33179
Synterra Ltd.
628 W. Rittenhouse Street
Philadelphia, PA 19144
d . CONSTRUCTION MANAGEMENT
CDI, Inc.
5800 N.W. 7th Avenue
Miami, Florida 33127
&G
87-1.41.1.
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e. ENGINEERS
Martinez and Associates
2025 S.W. 32nd Avenue
Miami, Florida 33145
f. FINANCIAL PACKAGING
Payne & Associates
204 North Third Street
Harrisburg, PA 17101
g. ATTORNEYS
McCrary & Valentine
3050 Biscayne Blvd.
Miami, Florida 33137
Section 5.2. Developer's Obligation. In pursuit of the
goal set forth in Section 5.1 Developer shall, but -is not limited
to:
a. Advertising for consultants and professional service
firms in newspapers with extensive circulation in
minority communities.
b. Encourage joint ventures between minority and.non-
minority consultants and firms.
ARTICLE VI
I4ANAGEMENT AND MAINTENANCE OPERATIONS
Section 6.1. Goal. Developer shall make diligent, good
faith efforts to hire a 100% Black staff -for 'the. Project's
management and maintenance operation. This goal is specifically
designed to increase the number of•skilled and semi -skilled
employment positions available to I4iami's Black community.
Section 6.2. Developer's Obligation. The Developer'•s
diligent,' good faith efforts shall include but be limited to:
a. Advertising in the local minority media.
b. Notifying employment agencies throughout Dade County
of the job opportunities.
C. Utilizing the OJP as the central screening and referral
source.
131
8'7-141 #1
ARTICLE VII
MONITORING
Section 7.1. Construction Contracts. The Department shall
visit the Project site monthly to review Developer's progress
relative to meeting the construction contracting goals. The
Department shall have access to all records pertaining to sub-
contractors on the Project. Attached hereto as Attachment D is
the form to be.used during the monitoring visit.
Section 7.2. Construction Hiring. The OJP shall visit the
Project site monthly to review Developer's progress relative to
meeting the construction hiring goals. The OJP shall have excess
to all employment records relative to the laborers on the
Project. Attached hereto as Attachment E is the form to be used
during the monitoring visit.
Section 7.3. Developer Acknowledgment. The Developer or
his designee shall be required to sign the monitoring forms,
acknowledging that the Project site was monitored. If Developer
determines that the findings of the monitor as recorded on the
forms do 'not accurately reflect the level of minority partici-
pation in the Project, he shall submit a written statement
stating his objections to the Director. of the Department within
ten (10) days of reviewing the monitoring form in question.
If the disputed findings are of such magnitude as to suggest
that'the Developer is not exerting diligent, good faith efforts
in meeting the minority participation goals 'and if such dispute
cannot be resolved by the parties to this Agreement, then the
dispute shall be resolved by an Arbitrator as set forth in
Article X of this Agreement.
ARTICLE VIII
MINORITY COMMITTEE
On or before 120 days following execution of the Lease
Agreement, Developer and City will establish an ad hoc minority
advisory -and assistance committee ("Minority Committee")
consisting of no more than nine (9) representatives from
community groups and government agencies. From the date of this
Agreement until the completion of the Project, Developer will
meet with the Minority Committee on not less than a quarterly
basis. The Minority Committee will (a) advise Developer on
additional means and methods of accomplishing Developer's goals
as set forth herein; (b) assist Developer in communicating
information to the Minority community concerning opportunities
for minority participation -In the sonstruction and management of
the Project; and (c) review on a regular basis Developer's
progress with the minority participation program. The Minority
Committee shall meet at the City Administration Building located
.at 275 Northwest 2nd Street, Miami, Florida. City will maintain
r�2
8'7-141.1.
0
minutes of the Committee's meetings to be available for
inspection by the members of the Committee upon reasonable
notice.
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.1. Florida and Local Laws Prevail. This
Agreement shall be governed by the laws of the State of Florida.
Section 9.2. Conflicts of Interest; City Representatives
Not Individually Liable. No member, official, representative, or
employee of the City or the City Manager shall have any personal
interest, direct or indirect, in this Agreement, nor shall any
such member, official, representative or employee participate in
any decision relating to this Agreement which affects his or her
personal interest of any corporation, partnership or association
in which he o'r she is, directly or indirectly, interested. No
member, official, representative or employee of the City or the
City Manager shall be personally liable to Developer or any
successor in interest in the event of any default or breach by
the City or the City Manager or for any amount which may become
due to Developer or successor or on any obligations under the
terms of the Agreement.
Section 9.3. Notice. A notice of communication under this
Agreement by either the City or the City Manager, on the one
hand, to Developer, or, on the other hand, by Developer to the
City or the City Manager shall be sufficiently given or delivered
if dispatched by registered or certified main, postage prepaid,
return receipt requested or given by hand or other actual
delivery to such party; and
a. Developer. In the case of a notice or communication to
Developer, if addressed as follows:
Circa/Barness/Sawyer'
628 W. Rittenhouse Street
Philadelphia, PA 33136
b. City Manager. In the case of a notice or communication
to the City of the City Manager, if addressed as follows:
City of Miami, City Manager
3500 Pan American Drive
tiiami, Florida 33133
or if such notice is addressed in such other way in respect to
any of the foregoing parties as that party may, from time to
time, designate in writing, dispatched as provided in this
Section 9.3.
133
8 7-141.1
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Section 9.4. Titles of Articles and Section. Any Titles of
the several parts,.Articles and Sections of this Agreement are
inserted for convenience of reference only and shall be
disregarded in construing or interpreting any of its provisions.
Section 9.5. Successors and Assigns. Except to the extent
limited elsewhere in this Lease, all of the covenants, conditions
and obligations contained in this Agreement shall be binding upon
and inure to the benefit of the respective successors and assigns
of the City and the Developer.
Section 9.6. Records. Developer shall maintain at its
field office in'the City of Miami records to enable the City to
monitor Developer's performance under this Agreement and will
permit the City to inspect such records upon reasonable notice.
Section 9.7. Estoppel Certificates. The City and Developer
shall at any time and from time to time, within thirty (30) days
after written request by the other, execute, acknowledge and
deliver to the other party which has requested the same or
designated assignees by Developer, a certificate stating (i) this
Agreement is in full force and effect and has not been - modified
or amended in any way, or, if there have been modifications,
identifying such modification agreement, and if this Agreement is
not in full force and effect, the certificate shall so state;
(ii) this Agreement as modified represents the entire' agreement
between the parties, or, if it does not, the certificate should
so state; (iii) the dates on which this Agreement took effect
and'if applicable, terminated; (iv) all conditions under this
Agreement by the City or Developer, as the case may be, have.been
satisfied and, as of the date of such certificate, there are no
defaults by the City or the Developer, as the case may be or if
such conditions have not been satisfied or if a party is in
default, the certificate should so state. The party to whom any
such certificate shall be issued may rely on the matters therein
set forth and thereafter the party issuing the same shall be
stopped from denying the vetacity.or accuracy of the same. Any
certificate required to be made by the City pursuant to this
paragraph may be made on its behalf by the City Manager.
•Section
9.8. Entire Agreement.
This instrument and its
attachments
constitute
the'sole and only
Agreement of the parties
hereto and
correctly
sets forth the rights, duties, and
obligations
of each to
the other as of
its date. Any prior
agreements,
promises,
negotiations,
or representations not
expressly set
forth in
this Agreement are
of no force or effect.
Section 9.9. Amendments. No amendments to this Agreement
shall be binding on either party unless in writing and signed by
both parties.
) 3q
8 7rl4t J.
ARTICLE X
DISPUTES
Section 10.1. Developer's Default. Failure of Developer to
perform obligations set forth herein and the continuance of such
failure for a period of ten (10) days after notice thereof in
writing from the City to Developer (which notice shall specify
the respects in which the City contents that Developer has failed -
to perform any such obligations), unless such default was not
caused or created by action or in action of the Developer and
cannot be cured within ten (10) days. Shall constitute a default
under this Agreement.
Section 10.2. Remedies for Developer's Default. If a
default should occur Developer shall be fined five hundred
dollars ($500) a day from the date the notice of default was
received by Developer until the default is cured. Payment of the
fine may be delayed pending an Arbitrator's decision.
ARTICLE XI
DISPUTES
If a dispute shall arise between the City and the Developer
under this Agreement including, but not limited to, whether or
not the Developer has made diligent, good faith efforts to meet
the goals set forth herein, such dispute shall be resolved by- a
professional Arbitrator. The Arbitration shall be conducted in
accordance with the Commercial Arbitration Rules of the American
Arbitration Association. If the Arbitrator shall determine that
Developer has failed to diligent, good faith efforts to meet the
goals set forth herein, the Arbitrator may award monetary damages
to the City in such amounts as specified in Section 10.2 of this
Agreement. Said amount shall be paid to the City as Additional
Rental. The Arbitrator may award the costs of the arbitration,
including reasonable attorney fees, against the unsuccessful
party to the arbitration. An Arbitrator's decision shall be
final and binding upon the parties and enforceable in a court of
competent jurisdiction.
The decision of the Arbitrator in a proceeding brought under
this provision shall not prevent the City from bringing further
proceedings under this provision arising from a continuing or
different failure by Developer to use diligent, good faith
efforts to achieve the goals set forth in Section 2.1; provided,
however, the Arbitrator shall not make more than one award under
this provision for the Developer's failure to use diligent good
faith efforts arising from -a particular set of facts.
)35
IN WITNESS WHEREOF, Circa Ltd:, has caused this Minority
Participation Agreement to be signed in its name by its President
and its corporate seal to be hereunto affixed, duly attested by
its Assistant Secretary, and the City Commission of Miami has
caused this Minority Participation Agreement to be signed by
Cesar H. Odio, the City Manager, and duly attested to by ►datty
Hirai, the City Clerk, on the day and year first hereinabove
written.
ATTEST:
[Corporate Seal]
ATTEST:
Circa/Barness/Sawyer
BY:
WILLIAM WILSON, PRESIDENT
THE CITY OF MIAMI, A MUNICIPAL
CORPORATION OF THE STATE OF
FLORIDA
By:
'MATTY HIRAI CESAR H. ODIO, CITY MANAGER
City Cleric
APPROVED AS TO FORM AND CORRECTNESS:
LUCIA A. DOUGHERTY
City Attorney
8'7rl4l d
ti
ATTACHMENT A
SUBCONTRACTOR aRTIFICATION FOW
Name of Bidder
r
Principal Address
City State Zip
License Telephone
( ) Corporation ( ) Partnership ( ) Indivisual (') Joint Venture
List of Corporate Officers, Title Race, and % of Ownership
NAME TITLE RACE
Ownership
Type of Business Yeari in Business
Largest Contract Completed $ Bond Capacity '
Insurance Agent
(Please attach a copy of licenses, workers compensation and liability policy)
Bank
Credit Reference ,
1.
2.
Total uol=e business in 1985 1984
Jobs Completed in Past 12 months:
Project game Architect General Contractor
1.
2.
3.
4.
Have you ever been certified by Dade County,DOT, or any other agency as a MBE
If yes what agency. When
Key personnel on the job site:
.T ItICL 13�
87rl41.s.
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ATTACHMENT A
Page (2) of FORM A
13. Is a valid Florida Drivers' License required? Yes 'ao
14. Are your employees in this position expected to provide any necessary tools invotveJ in
the job (s)? Yes No
If yes, please attach an itemized list of tools required for each position.
15. Could a person with limited English speaking skills perform this job?
Yes No
16. Is public transportation easily accessible? Yes Ho
17. Does the job require shift work or,other than traditional hours?
Yes No
(If yes, please clarify
3�
87i1 jL a
j
ATTACHMENT B .. � ,may
VERIFICATION FORM
The following information is required from each sub -contractor on
project.
I. Name of Company
2. Company address
3. Telephone number
4. Owners Name
S. Current number of employees
6. IRS Employers' ID Number
7. Nature of Business (example plumbing, electrical, etc.)
8. Type of license License Number
9. Name in which license was obtained.
10. Legal Structure
( ) Proprietorship ( ) Partnership ( )Other
( ) Corporation ( ) Limited Partnership —`
11. Names of Partners, if applicable
12. List of current Board Directors and ethnicity, if
applicable.
13. Name(s) of persons authorized to conduct business for
company.
14. Percentage of ownership, and ethnicity.
IS. Copy of Articles of Corporation and By Laws.
16. Notarized statement of ownership
17. Copy of Dade County Certification, if applicable.
18. Amount of this contract.
139
87--IL4191
ATTACFLMEyT C
CITY OF MIAMI
OVERTOWN JOBS PROGRAM
JOB ORDER FORM
i. Developer 2. Phone 3. Date
4. Project Title S. Project Location
6. Sub Contractor/Project Supervisor
I. Position Title S. Number of Openings
4. Beginning Date 10. Ending Date
1l. Work Days 12. Hours
13. Will union membership be required? Yes No
If yes, wAich union and local I
14. If this job involves on•the-job training to be subsidized by the City,•how Iona will
the training period be? (attach specific training
plan).
Specific Duties
NECESSARY QUALIFICATIONS:
Skill Level of experience or training required (include
licenses and/or certificates necessary)
87-14JL 91 ,
P
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ATTACFDdE'NT D
MINORITY SUB -CONTRACTOR MONITORING FORM
Name of General Contractor:
Name of Project:
Address or Block Number of Project:
Name of Sub Contractor:
Address:
Phone Number:
On Site Contact Person:
Owners Name(Sub-Contractor)
Verified as Minority Company yes �No
Ethnicity of Company
Black Hispanic Female
. Date Job Begins Estimated Completion Date
Contractor Speciality:
Number Of Jobs Created:
Date of Site Visit
Change in Ownership
; Minorities Employed!
% of work completed
Miscellaneous Notes
AUTHORIZED SIGNATURE
Signature of Developer
1q/
877-141.1. .f
r
ATTACHMENT E
For the Month ot:
MONTHLY HIRING SUMMARY General Contractor:
Sub Contractor:
Developer:
List all the construction personnel in the firm of that are covered
-jnd er the First Source Agreement with the City. Please provide the names and ethnicity
of all company personnel and ethnicity of all new hires. Return this form to the
::ertown Jobs Program within ten (10) days.
3":SITION TITLE
PRESENT EMPLOYEES
ETHNICITY TOTAL
*(B/L/F/0) NEW HIRES
Authorized Signature
Title
Date
"3 - Black, L - Latin, F - Female, 0 - Others.
Please return this form to: Overtown Jobs Program
1600 N.W. 3rd Avenue
Miami, FL 33136
FOR14 2
ETHNICITY
* (B/L/F/0)
87-1.41of
Exhibit H
Maintenance Responsibility Site Plan
(To Be Provided)
87rl41L.1.