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Home My WebLink AboutR-86-0952J-86-998 11/25/86 i RESOLUTION NO.Sfx— a52 A RESOLUTION AUTHORIZING AND DIRECTING THE CITY MANAGER TO EXECUTE A DEVELOPMENT AGREEMENT WITH CAN-AMERICAN REALTY CORPORATION, IN A FORM ACCEPTABLE TO THE CITY ATTORNEY, FOR THE DEVELOPMENT OF PARCEL 37 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 Can -American Realty Corporation as the development entity to develop Parcel No. 37 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 rcm Colo Page No. 1 WHEREAS, the City Commission by Resolution No. 85-393 directed the City Manager to negotiate a land disposition contract with the aforementioned development entity and to present the negotiated contract to the City Commission for its consideration and approval; and WHEREAS, the City Commission has been presented with the aforementioned negotiated land disposition contract 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 contract; and WHEREAS, the developer has agreed to provisions for annual land lease payments that are consistent with a land residual reuse appraisal conducted by Real Estate Research Corporation; NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The City Manager is hereby authorised and directed to execute the attached Development Agreement with Can - American Realty Corporation, in a form acceptable to the City Attorney, for the development of Parcel No. 37 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 Section 2. Said Agreement shall require that the Can - American Realty Corporation shall initiate construction within one year from Commission approval of the Development Agreement by actually commencing the construction of physical elements at Parcel No. 37. PASSED AND ADOPTED THIS 25th day of November=_. 1986. ATTESTS MATTY HIRAI, CITY CLERK PREPARED AND APPROVED BY: APPROVED ASeW FORM AND CORRECTNESS: • &0wwwaaa+4j.a s, CITY OF MIAMI, FLORIDA INTER4DFFICE MEMORANDUM Honorable Mayor and To: Members of the City Commission FRoM: Cesar H. Odio hO CATS: NOV 19 RESOLUTIO15 ON LAND SUWCCT: DISPOSITION TO DEVEWP$R SOUTHEAST OVERTOWN/PA1RK WF= REDBVBL.OPMENT REFERENCE!: City Manager ENCLOSURES: RECOMMENDATION: It is respectfully recommended that the City Commission approve the attached resolution authorizing and directing the City Manager to execute a Development Agreement in a form acceptable to the City Attorney with Can -American Realty Corporation for the development of Parcel 37 of the Phase I Redevelopment Area of the Southeast Overtown/Park West Redevelopment Project. BACKGROUND: The Department of Development and the Law Department have analyzed and reviewed this Development Agreement. The Agreement includes all the terms necessary to allow this development to proceed in accordance with the accepted proposal. The City Commission selected Can -American Realty Corporation to develop Parcel 37 of Phase I in accordance with Can -American's development proposal, which called for a complex of 350 rental housing units and 30,000 square feet of commercial space, on April 11, 1985. In June 1986, Can American Realty Corporation was awarded an Urban _ Development Action Grant (UDAG) by the Department of Housing and Urban Development (HUD). The UDAG award certifies Can -American as having firm financing commitments thus facilitating a groundbreaking. The agreement binds the developer to not only complete the project as proposed but also to adhere to a minority participation goal calling for 25 percent Black hiring, 25 percent Black contracting and 25 percent Hispanic contracting. The contract requires lease payments to the City as follows: For years for years lease term payment of percent of 10 percent one through five an annual payment of $1.00; six through the termination of the original and applicable renewal terms, an annual basic 1/10 of 1 percent of project revenues and 100 all net cash flow in excess of cumulative of return on developer equity. a Honorable Mayor and Members of the City Commission Page 2 The developer is bound by a $100,000.00 performance bond to complete the project. The site, will be transferred to the developer upon commencement of construction. Rental rates for the units to be developed are proposed at $400.00 for a one -bedroom unit and $575.00 for a two -bedroom unit. Parcel 37 was acquired with General Obligation Housing Bond Funds allocated to the Southeast Overtown/Park West Redevelopment Project as part of the City's Affordable Rental Housing Program. Attachment i t :�-^�tfr.•Q+i: ik�JS�n't :'-4 _ 1t. � 3.�'.rT '.� �.::' ' s �� _ SOUTHEAST OVERTOWN/PARE WEST DEVELOPMENT AGREEMENT between PARR WEST. LTD. and CITY OF.MIAMI DATED: November 17, 1986 • x�" `ate` 1�i*Phyb_ u'�S Z$ STATEMENT OF BACEGRODND AND PURPOSE ...................... 1 ARTICLE I - EBSIBITS AND DEFINITIONS Section 1.1. Section 1.2. Exhibits ................................. Defined Terms 3 ........................... 3 ARTICLE II - GENERAL TERNS OF LEASE OF LEASED PROPERTY Section 2.1. Lease of Leaned Property to Developer... 14 a. Premises ........................... b. Original Term ...................... 14 14 o. Renewal Term ....................... 18 d. Possession of Leased Property...... 18 e. Conditions Precedent ............... 18 f. Developer Obligations Prior to Possession ....................... 20 Section 2.2. Restrictive Covenants ................... 20 a. Use Prohibitions of the Leased Property ......................... 21 b. No Discrimination .................. 21 o. Permitted Uses for Leased Property.....................;... d. Enforceability ..................... 22 22 Section 2.3. Easements ............................... 23 a. Existing Easements ................. 23 b. Easements Granted to Developer..... 23 o. Limitations on Basements Rights.... 24 d. Duration of Easements .............. 25 e. Confirmatory Instruments........... 28 Section 2.4. Title of Leased Property ................ 28 Section2.8. Rental .................................. 26 a. Rentals Payable .................... 26 b. Payment of Rental .................. 27 o. Adjusted Annual Rental ............. 27 d. Task of Appraisers ................. 29 e. Ad Valorem Taxation ................ 30 f. Additional Income .................. 30 g. Developer's Records ................ 30 Section 2.6. Covenants for Payment of Public Charges by Developer .................. 32 Section 2.7. Approvals and Consents .................. 34 Section 2.8. Security and Police Protection.......... 34 Section 2.9. Condition of Leased Property............ 34 Ci) r * ''" ARTICLE III - CONSTRUCTION OF IMPROVEMENTS Section 3.1. Seotion 3.2. Seotion 3.3 Seotion 3.4. Seotion 3.5. Seotion 3.6. Seotion 3.7. Seotion 3.8. Seotion 3.9. Seotion 3.10. Seotion 3.11. Seotion 3.12. Seotion 3.13. Seotion 3.14. Seotion 3.18. Conformity of Plans ..................... Preliminary Plans ....................... SoopePlans ............................. Construotion Plans ...................... Faoilities to be Construoted............ Maintenanoe of Leased Property.......... A00e88............ ..................:.. Construotion Period ..................... Progress of Construotion................ Certifioate of Final Completion......... Conneotion of Building to Utilities..... Permits and Approvals ................... Complianoe with Lags .................... Eztension of Time Requirements.......... Alterations and Renovations ............. ARTICLE IV - LAND USES Seotion4.1. Land Uses ............................... Seotion 4.2. Charaoter and Operation of Improvements.......................... ARTICLE V - ANTI -SPECULATION; ASSIGNMENT Seotion d.lt. Definitions ................:............ Seotion 5.2. Purposes of Restriotions on Transfer.............................. Seotion5.3. Transfers.. .............................. Seotion 5.4. Notioe of Transfer, Information as to Shareholders ....................... Seotion 5.5. Effeotuation of Certain Permitted Transfers ............................. Seotion a.e. Transfers of the City's Interests....... Seotion 5.7. Subletting .............................. Seotion 5.8. Minority Partioipation in Ownership ............................. ARTICLE VI - MORTGAGE FINANCING; RIGHTS OF MORTGAGEE Seotion 6.1. Leasehold Mortgage.... .... 0 Seotion 6.2. No Waiver of Developer's Obligations Of City's Rights ...................... PAGE 36 36 38 40 42 43 44 44 45 46 46 47 49 49 50 81 51 82 54 as 57 as 60 80 61 82 72 t 0 ARTICLE VII - REMEDIES Section 7.1. Events of Default - Developer........... 73 a. Failure - Payment of Money......... 73 b. Failure - Performance of Other Covenants, Ito ................... 73 c. eank uptoy, Ito .................... 74 Section 7.2. Remedies for Developer's Default........ 78 Section 7.3. Events of Default - City ................ 78 a. Events of Default .................. 78 b. Remedies for City's Default........ 77 Section 7.4. Unavoidable Delay ....................... 77 Section 7.8. Obligations, Rights and Remedies Cumulative............................ 79 ARTICLE VIII - PROTECTION AGAINST MECHANICS' LIENS AND OTHER CLAIMS, INDEMNIFICATION Section 8.1. Mechanics' Liens and Payments of Obligations ........................... 79 a. Developer to Discharge Mechanics' Liens............................ 80 b. Payment of Materialmen and Suppliers........................ 81 Section 8.2. Indemnity ............................... 81 ARTICLE I8�- INSURANCE Section 9.1. Insurance Coverage .................•..... 82 a. Property Insurance ................. 82 b. Rental Value Insurance ............. 83 o. Automobile Liability Insurance..... 84 d. Liability Insurance ................ 84 e. Worker's Compensation......... ... 6. 85 f. Copies ............................. 85 Section 9.2. Responsible Companies - Blanket Insuranoe Permitted ................... 88 Section 9.3. Named Insureds - Notice to City of Cancellation .......................... w Section 9.4. City May Procure Insurance if Developer Fails To Do So .............. 86 Section 9.5. Insurance Does Not Waive Developer's Obligations ........................... 87 Section 9.6. Loss or Damage Not to Terminate Rental or this Agreement .............. 87 Section 9.7. Proof of Loss ............................ 87 S.X. section 9.8. Property Insurance Proceeds ............. a. Authorized Payment ................. b. Disposition of Insuranoe Proceeds forReconstruction ............... o. Lenders and Lender/Landlords May Have Benefit of Insurance Fund for Reconstruction ............... Section 9.9. Covenant for Commenoement and Completion of Reoonstruotion.......... Section 9.10. Developer's Rights In the Event of Uninsured Major Casualty .............. ARTICLE S - CONDEMNATION Section 10.1. Entire Leased Property Taken by Condemnation .... .... ....... ........ Section 10.2. Partial Taking of Leased Property byCondemnation ....................... Section 10.3. Adjustment of Rent Upon Partial Taking ................................ Section 10.4. Taking for Temporary Use or of Leasehold Estate ....................... ARTICLE 8I - RIGHTS OF OCCUPANCY AND ACCESS; MAINTENANCE; OWNERSHIP OF IMPROVEMENTS Section 11.1. Quiet Enjoyment ......................... Section11.2. waste ................................... Section 21.3. Maintenance and Operation of Improvements.... ....................... Section 11.4. Ownership of Improvements During Lease.. Section 11.8. Surrender of Leased Property............ Section I.I.S. City and Developer to Join in Certain Actions ....................... ARTICLE 8II - MISCELLANEOUS PROVISIONS Section 12.1. Section 12.2. Section 12.3. Section 12.4. Section 22.0. No Partnership or Joint Venture........ Recording, Documentary Stamps........... Florida and Local Laws Prevail.......... Conflicts of Interest; City Represen- tatives Not Individually Liable....... Notice.................................. a. Developer .......................... b_ Davainnwr*a TtAnnrda_____________ PAGR 88 88 89 89 90 91 93 94 98 98 97 98 98 98 99 99 100 100 101 101 102 102 1no Section 12.6. Estoppel Certificates... ............... 103 Section 12.7. Provisions Not Nerged with Deed......... 104 Seotion 12.8. Titles of Articles and Sections......... 104 Section 12.9. Counterparts ............................ 105 Section 12.10. Non-Disturbanoe and Attornment .......... 105 Section 12.11. Non -Discrimination and Equal Section 12.12. Opportunity........................... Successors and Assigns .................. 108 106 Section 12.13. Exculpation ............................. 108 Section 12.14. Entire Agreement ........................ 106 Seotion 12.15. Amendments .............................. 107 ARTICLE XIII - ARBITRATION Seotion Seotion 13.1 13.2 Panel ................................... Actions. Hearings and Decisions......... 107 108 (v) �r • :fix y.+. $M_B•TR Exhibit A-1 Survey and Plat Site Plan Exhibit A-2 `_-_ Legal Desoriptioa Exhibit B Form of Performanoe Bond Exhibit C List of Approved Conoept Plane Exhibit D - Development Sohedule Exhibit E Development a Agreement' Kinority Partioipatio Exhibit F Eaiatenanoe Responsibility Site plan Exhibit G " I IRIS LEASE AGREEMENT, made this _ day of , 19_.., by and between Park hest, Ltd., a Florida Limited Partnership (aereinafter referred to as "Developer"), and the City of Miami, a munioipal oorporation of the State of Florida (hereinafter referred to as "the City"), aoting 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 EACMROUND AND PURPOSE The City is owner, in fee simple, subjeot to oertain rights of others, of all that oertain land looated between North Miami Avenue, Northwest lot Avenue, Northwest 8th Street, and Northwest 9th Street, in the City of Miami, County of Dade, State of Florida, whioh is oolleotively referred to herein as "elook 37." Hlook 37 is shown on the Survey and the Plat attached hereto as E=hibit A-1. By authority of the City of Miami Charter, the City on July 31, 1984 authorized the publioation of a request for f proposals for the unified development projeot to be known as Southeast Overtown/Park Nest redevelopment Projeot Phase I Development. Developer submitted a proposal to develop a residential projeot to be known as "Park Nest Plaoe" ("Projeot"), vhioh will oonsist of the following improvements generally shown on the Site Plan attached hereto as Sshibit A-8 and hereinafter referred to as "Developer Improvements": -1- • i tilfit��,4 r ,` _ g �y Sighrise apartment building containing 380 units and adjoining parking ramp containing 390 spaces and 40,000 square feet of commercial space in separate structures. Developer shall build the residential and commercial structures in two stages with the residential structure and adjoining parking ramp comprising the first stage. It is the mutual desire of the parties that Blook_=37 be •� ! leased and demisedr by the City to Developer for the purpoges_eet forth in the request for proposals advertised by the City and the proposal submitted by Developer, subject to and upon the terms and conditions contained herein. 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 foott;es 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 tetras 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- ARTICLE I Section I.I. w:�d. Attached hereto and forming a part of this Agreement are the following Rib' its: Exhibit A-1 -- Survey and Plat i it A-2 -- Site Plan Exhibit -- Legal Description Exhibit C -- Form of Performance Bond Exhibit D -- List of Approved Concept Plans Exhibit B -- Development Schedule Exhibit F -- Minority Participation Agreement Exhibit G -- Maintenance Responsibility Site Plan Section 1.2. Defined Terms. As used herein the term: •AoAe�table QRerater" means any person, firm, corporation or other entity possessing the experience, qualifioations, good reputation, financial resources and adequate personnel necessary for the proper .performance of all of Developer's obligations under• this Lease in a manner oonsonant with the quality, reputation and eoonomio viability of the Project. inoluding (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: i. 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. -3- N t � f . 8. There must be no outstanding building code violations against any residential property owned or managed by the City. 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 suoh 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 sand 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. "Aoeevtahla 92erator Agreement" has the meaning ascribed to it in Section 6.1(o)(iv). "AeoeutabIn Purohaser0 has the meaning ascribed to it in Section 5.3(d) and shall qualify on the same basis as a;n *Acceptable Operator". "Addi�,�,onai Rental" means any and all payments required of Developer to the City by the terms of this Lease other than Rental. -4- -- "Ad justed Dates" has the meaning asoribed to it in Seotion 2.S(o). "This Agreement" or "this Lease", mesas this Lease Agreement, as the same may be modified or amended from time to time. ., f "Annual $asio�Rental " has the meaning asoribed to it in subparagraph (i) of Seotion 2.8(a). "Audited Finaneiai Statement" means a Finanoial Statement oertified by the Auditor to have been prepared in a000rdanoe with Generally Aooepted A000unting Prinoiples and Generally Aooepted Auditing Standards as promulgated by the Amerioan Institute of Certified Publio A000untants. "Auditor" means Prioe Waterhouse or suoh other nationally reoognized firm of oertified polio a000untants as may be used from time to time by the Developer for the purpose of oertifying the annual reports of its finanoial oondition required by law. "�vit� al Turevements" means any addition to the Projeot or the oonstruotion of any additional portion of the Projeot or other oonstruotion in, upon or oonstituting part of the Leased Property 000urring subsequent to the date on whioh the entire Projeot is "open for business." "fiertifieate et Final Cemrier, tinn" has the meaning asoribed to it in Seotion 3.10. "The City" has the meaning asoribed to it in the opening paragraph of this Agreement, also referred to as Lessor, City or Landlord. "Citg_ n-rovemente" has the meaning ascribed to it in Section 3.8. "CLIS Maintenance ,area" has the meaning asoribed to it in Section 3.6. "The City Qer" has the meaning ascribed to it in the opening paragraph of this Agreement. "Completion Date" means that date on which the City Manager shall be required to issue the Certifioate of Final Completion pursuant to Section 3.10. "Coastruotion Plans" has the meaning ascribed to it in Seotion 3.4. "Debt Service Pavmenta" 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-Subleasebaok Transaction for the Developer e' 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 suoh holder) by deed in lieu of foreclosure, or in the event of the termination of any lease or sublease arising out of a Sale-Subleasebaoi Transaotion for suoh estate, the term "Debt Service Payments" shall thereafter inolude all prinoipal and Interest, rental and other sums and amounts which would have beoome payable pursuant to or In connection with such Leasehold Mortgage or Sale-Subieaseback -8- •I: L Transaction but for suoh foreolosure, deed in lieu of foreclosure or lease termination. "Defer It Rate" has the meaning asoribed to it in subparagraph (b) of Seotion 2.8. "Developer" has the meaning asoribed to it in the opening paragraph of this Agreement, also referred to as Lessee, Tenant or Sublessor. "Developer JZUtg" means an amount, to be determined periodioally, equal to all sums of money of every kind and nature oontribute. to the Projeot by Developer, for the oonstruotion and development of the Projeot, inoluding, but not limited to, any and all expenditures by the Developer to fund: (1) oosts of oonstruotion of the Projeot; (ii) liabilities or obligations resulting from drays on letters of oredit posted by the Developer; (ILL) reserve funds funded from souroes other than Project Revenues, or (iv) fees paid to any entity for servioes rendered, in oonneotion with the development,. finanoing, oonstruotion, initial rent -up or management of development of the Projeot, inoluding funds provided to oover operating defioits. •DevalajMant Costs" means an amount, provided in reasonable detail to the City by an exeoutive offioer of Developer and aooeptable to Developer's Leasehold Mortgagees or Lender/Landlords, equal to the aggregate of all oosts and expensed aotually inourred direotly or indireotly by Developer for the purpose of and properly allooated to the initial development and oonstruotion of the Developer improvements on the Leased Property. -7- 5 ry "Develaper T�nrovementa" has the meaning ascribed to it in the Statement of Background and Purpose. "UM -taper an Area" has the meaning asoribed to it In Section 3.8. "pnyeloper Utility 8aaement" has the meaning ascribed to it in the subparagraph (i) of Section 2.3(b). "Development schedule" means the construction timetable for the Developer Improvements. The Development Schedule is attached and incorporated herein as S:hibit E. 08nvironmental Taros" has the meaning ascribed to it in Section 3.12. "Nyente of the city'a Default" has the meaning ascribed to it in Section 7.3(a). "gventa of Develoger'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 Boller, villing 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 oaso may be), and which a buyer, villing but not obligated to buy, vould pay therefor in an arm's length transaotion. "Final subatrueture Plane" has the meaning ascribed to it in Section 3.4. "Finaneine snbieaee" has the meaning ascribed to it in the definition of "Sale-Subleaeebaok Transaction -8- T Wk i A . �u'h�'� _moo""a2°it��t��:!: _r_�-d►�t�+;�eai.�4�it"_ _� ��'�'��;}z*..��i'�i�i * - x'S� _ "Improve antno shall mesa all existing and future structures at the Leased Property. "ram■�+ ++++i nil Investor" has the meaning ascribed to it in subparagraph (b) of Section 6.1. "r11�11+_•a en Trustee" has the meaning ascribed to it in Section 9.8(a). "Leaseable Area" means the aggregate of the actual number of square feet of leaseable area in the Leased Property designed for the exclusive use and 000upanoy of rent paying Subtenants, excluding common areas, mezzanine storage areas, areas used for management and promotion offices, mechanical equipment penthouse, and truck loading areas. "Leased Property" has the meaning ascribed to it in Subparagraph (a) of Section 2.1. "Leasehold Mortgage" has the meaning ascribed to it in Section 8.1. "Ls=sx" shall have the meaning asoribed to it in subparagraph (b) of Section 6.1. means a lender, and any successor, assignee, transferee or designee of such lender, to which, in connection with the providing of financing to the Developer under this Lease, Developer's leasehold interest in this Lease has been conveyed and which has thereafter entered into a Financing Sublease with Developer. "get each naw" means the amount of funds obtained for each Rental Year by substmoting Project Expenditures from Project Revenues. -9- { r? ws,::;> �- � '?�lL�.'...: ::w_5— �.��. t.��x`� ..e z�•a;i3'��''rhtiC�s"'`yt �=i M 611=14-na Date" means the date on which the first residential unit is occupied by a tenant. "Original Term" has the meaning ascribed to it in subparagraph (b) of Section 2.1. "erieinal Investors" shall mean for the purpose of this Lease Can American Realty Corporation, Northport Development Corporation, Garrett G. Carlson and Richard S. Kahn. "Owner" has the meaning ascribed to it in subparagraph (b) of Section 0.1. "Droner whose shares are vab�Y traded" has the meaning ascribed to it in subparagraph (c) of Section 8.1. "Possession Date" has the meaning ascribed to it in subparagraph (d) (vi) of Section 2.1. "Print ual Partner" means initially Can American Realty Corporation as the managing general partner of the -Developer and its permitted successors, assigns, or transferees. "Project" has the meaning ascribed to it in the third paragraph of the Statement Background and Purpose. "Project Sznenditures" means all expenditures of every kind and nature incurred by the Project or by the' Developer in connection with the Project in any single Rental Year, including, but not limited to, (i) all costs and expenses associated with operation, maintenance and repair of the Project; (ii) all debt service payments, fees, and expenses due on or in oonnection with loam incurred by the Developer in connection with the construction, development, operation. maintenance or repair of the Project, including, but not limited to any leasehold mortgage; (iii) expenditures for the acquisition or construction of replacements and improvements not normally chargeable to current operations; (iv) management fees, including, but not limited to, incentive management fees; (v) a return, not exceeding fifteen percent (15%) per annum, on the Project's Developer Equity; (vi) sums deposited as required by Leasehold Mortgagee for the operation or maintenance of the Project; (vii) finanoing fees; (viii) real estate taxes; and (ix) such other expenditures as may be reasonably necessary in connection with the operation, maintenance and repair of the Project. "Proleot Revenues" means in any single Rental Year, all cash generated by the Project less (i) any proceeds from sale or refinancing of the Project; less (ii) any proceeds resulting from a syndication of the Project or the Developer; less (iii) any capital contributions of the Developer contributed to the Project or the Developer; lees (iv) any and all Developer Equity, of every ]rind and nature, contributed by the Developer, in such Rental Year, for the construction. operation or maintenance of the Project, and less (v) any insurance proceeds resulting from damage to or destruction of the Project. "ftblio charges" has the meaning ascribed to it in Section 2.8. "Beoonstruotien WQXW has the meaning ascribed to it in - subparagraph (b) of Section 9.8. "�ovai Ontien" has the meaning ascribed to it in Section a.dCa)(iv). -11- I- "jai Term" has the meaning ascribed to it in subparagraph (o) of Section 2.1. "Rent Commencement Data means the date described as "Rent Commencement Date" on Exhibit F attached hereto, 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 4.4. "Rawl" has the meaning ascribed to it in subparagraph (a) Section 2.3. "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 oommenoe on the Possession Date and and on December 31st of the same calendar year in which the Possession Date occurs, and the Rental and Additional Rental shall be apportioned therefor. Any portion of the term remaining after the end of the last full. Rental: Year constitutes the final Rental Year, and Rental and Additional Rental shall be apportioned therefore. "S1a,eaefkback Traneactien" means Developer's sale to a Leader/Landlord of all or a substantial portion of Developer's interest in this Lease, and the subsequent ezecution of a sublease ("Finanoing Sublease") between Lender/Landlord and Developer. "Been Plan=" has the meaning ascribed to it in Section 3.3. " " , 01101% eeotien" 0 "parara h" 0 "�" , 001AUBa" , or " a" followed by a number or lett�erl means the -12- ;i3 t section. subsection, paragraph, subparagraph, olauee or subolause of this Agreement so designated, "Southeast Avertown/P rk Vast Redeyelov ent Zroj t Pbase S CIRROPT." has the meaning ascribed to it in the Statement of Baokground and Purpose. ` "Stages of Develo=gam" means the two aspeots of the Developer Improvements to be constructed, with the residential structures and parking ramp comprising the first stage and the commercial structures comprising the seoond stage. "SubleaeS" 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 sublioenses to or permits the use or occupancy by another person or entity of any part of the Leased Property and Developer Improvements excluding individual residential tenant leases to nonrelated parties. " means any person, firma corporation .or other legal entity using or occupying or entitled to use or occupy any part of the Leased Property or the Developer Improvements under a Sublease.'also referred to as Subtenant or Sublessee. "Qrba*+ DeyeleUIDent Action Groat (UDAG)" means the funds provided by the O.S. Department of Housing and Urban Development C"80D") in the amount of $4.5 million to pay for Project costs during the construction period. `--AgXWR=1" means that certain agreement ezeouted between City and Developer. -13- .91 M Section 2.1. Lease of Loaned PrOR rty to Developer. 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) PsealAm. The City demises and leases to Developer, and Developer takes and hires from the City, all of the area specified on 8zhibit A-1 and more particularly described in the legal description attached hereto as Exhibit B, and subject to the restrictions, conditions, covenants and easements hereinafter mentioned, reserved or granted (the "Leased Property"). The City and Developer recognize that the boundaries of the Leased Property may require minor adjustments to accommodate the Developer Improvements' contemplated pursuant to the Construction Plane. Should the parties agree a modification is required, Szhibit 3 to this Lease shall be amended accordingly. New structures shall be limited to a mazimum of forty percent (40%) commercial usage of Leasable Area. Buildings on the Leased Property shall not ezoeed a total of 450,000 square feet of Leaseable Area of New Construction, ezoluding square footage required for parking. (b) Original Term. To have and to hold the Leased Property for a term of fifty (00) years, commencing on the first day of the month next following the Possession Date. Within thirty (30) -14- R days after the Possession Date, the City manager and Developer, upon request of either party, shall execute one or more written nemoranda in such form as will enable 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. (o) Renewal Term. Developer 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 Term") 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 notf less than eighteen (18) months before the date on which such Renewal Term is to oommenoe. At the City's option, if within ninety (90) days from reoeipt of Developer's notice to renew. City provides written notice to Developer of City's intent to exercise its option, such renewal request shall not be granted If at the expiration of the Original Term or the immediately preceding Renewal Term, as the case may be, an event of Developer's Default shall have occurred and be continuing within one hundred eighty (180) days before commencement of a Renewal Tern. provided Developer has been given an opportunity to once suoh default and has failed to do so. -Id- The City Manager and Developer, upon request of either party shall execute one or more written memoranda in.suoh form as will enable them to be recorded among the Lund Records of Dade County setting forth the beginning and termination dates of the Renewal Term, determined in accordance with this Agreement. (d) Peeaesaion of Leased Property. The City shall deliver possession of the Leased Property to Developer, and Developer shall take possession thereof within two (2) days after the following shall have occurred: (i) The City Manager shall have approved the Preliminary Plans and, Scope Plans for the Developer Improvements to be constructed on the Leased Property, as provided in Sections 3.2 and 3.3; (ii) The City Manager shall have received and approved. the oommi"ent or commitments for the construction and permanent finanoing 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 finanoing has been oommitted 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 may not charge the Project an interest rate in excess of Developer's cost of borrowing. Upon receipt of the financing commitment or commitments the City Manager shall review the same and shall promptly (but in any -18- �y r event within fifteen (15) days after such receipt), give Developer written notice of his approval or disapproval setting forth in detail his reasons for any disapproval. If no written response from the City manager is delivered to Developer with fifteen (18) days after the submission of such financing oommitment or commitments, they shall be deemed approved, except that no violations of applicable ordinances, codes, laws. regulations or of this Agreement shall be deemed waived thereby. (iii) All governmental permits and approvals required to oommenoe oonstruotiba shall have been obtained by Developer; (iv) The City Manager shall have reoeived from Developer a one hundred thousand dollar ($100,000) Performance Bond as a means of insuring the prompt and faithful performance and observance by Developer of all of its obligations hereunder with respect to the construction and completion of the Developer Improvements to be constructed on' the Leased Property. The City shall release the Performance Bond if any of the following occurs: - No other BBOPW Development is under construction within one (1) year after Developer has taken possession of the Leased Property. - There is a substantial increase in crime or the perception of crime within a one (1) mile radius of BROPW over lose levels. - Lack of support in the Project by the City Commission as evidenced in their official acts or refusal to act in 88OPW matters. Continuing detrimental public statements by City officals that have a material effect on the marketing of the Project and/or SROPW. -17- ra IfQ ,ssv i 'hir, " ; :'* e]Y.: ''_i-3'i'e�ilti.s'�'dii�? ti'�.'t�4- �`fFi3e ►q _ I 0I' • A form of the Performance Bond Mhioh shall be acceptable to City is attached hereto as 8ahibit C. (v) The date that the City delivers possession of the leased property to the Developer in a000rdanoe with this subparagraph (d), by notion in writing, is herein oalied the "Possession Date". (e) Conditionm Preoedent. Notvithstanding anything in d i . gVbseotion (d) above to the oontrary, 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 following shall have 000urred or have been obtained: (1) the City Manager has approved all the Soope Plans for the Developer Improvements; and (ii) Developer has obtained all governmental approvals and permits necessary for oommencement of oonstruction of the Developer Improvements; and (iii) the City Manager shall have reoeived the authorization neoessary for the oonstruotion of the 9th Street Mall and mandated to prooeed with the same in a form satisfaotory to Developer. Furthermore. the City Improvements, oonsisting of infrastruoture improvements shall be substantially oompleted; and (iv) Developer shall have obtained a oommitment or oom itaents. on terms and in a form satisfaotory to Developer. vithia the sole disoretion of Developer. from Institutional Investors or Lender/Landlords for construotion and long term financing of the Developer Improvements and the Leader has approved the terms of this Lease; and -18- Wp. (v) Developer shall be satisfied that the development of the Project will not violate the Environmental •Laws (hereinafter defined) . (vi) City shall have executed a UDAG agreement with MM satisfactory to Developer and Developer shall have executed VDAG Agreement with City. (vii) Developer shall be satisfied that representations made in Section 2.4 are accurate. (viii) Developer shall be satisfied with the test and inspections provided for in Section 3.9. (ix) Any other preoonstruotion conditions set forth in this Lease have been satisfied. Developer and the City shall use good faith efforts to promptly satisfy all of the aforesaid conditions precedent. It is recognized•by the parties hereto that it is not the intention of either *wty 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 Leave if ali of the aforesaid conditions precedent are not satisfied or waived on or before one (1) year from the date of execution of this Lease by all parties. 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 precedents, it being agreed that any waiver by t Developer of any such condition preoedent shall be effeoted only by Developer's express Written statement to that effeot delivered to the City or the City manager. No Waiver of any of the foregoing oonditions preoedent shall be implied by any oonduot of the City, it being agreed that any Waiver by City of any suoh oondition preoedent shall be effeoted only by City's express Written statement to that effeot delivered to Developer. standing anything herein to the oontrary, until possession of the Leased Property shall have been delivered to Developer pursuant to the provisions of subseotion (d) and (e) of this Seotion 2.1. Developer Shall not be required to perform any of its obligations hereunder With respeot 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. Seotion 2.2. Restrietive Cenenanta. The restriotive covenants contained in paragraphs (a) through (o) of this Seotion 2.2 are intended and designed to bind the Developer and the City {' and their respective suooessors and assigns and bind upon and run :a with the Leased Property throughout the entire term of this Lease, inolud4ng any Renewal Term and any new lease exeouted Pursuant to the provisions of Beotioas 8.1 and 8.2. The parties reoogasae, however. that the development and operation of the Leased Property, the Developer Improvements and the City Improvements in a manner vhioh is in the best interests of both i' l E- —20_ s N r s. �a za • if parties may from time to time require the oonfirmation, olaritioation, amplifioation, or elaboration of this Agreement in order to deal adequately with oiroumstanoes whioh may not now be foreseen or antioipated by the parties. The parties reserve unto themselves the right to enter into suoh interpretive, implementing or oonfirmatory written agreements from time to time as they mutually deem neoessary or desirable for any suoh purpose without obtaining the oonsent or approval of any person or entity not a party to this Agreement exoept as may be expressly otherwise provided in this Lease or by law. (a) Sloe Prohi + ti o a of the LgaaeA Prop ertZ. The Leased Property hereby demised shall not be knowingly used by Developer nor shall Developer knowingly permit the use 'of same for the following: (i) Coinbox entertainment (pinball, video games, moving piotnres operated by ooins); or (ii) Any unlawful or illegal business, use or purpose, or for any business, use or purpose whioh is immoral or disreputable (including without limitation "adult entertainment establishments• and •adult" bookstores) or extra -hazardous, or in suoh manner as to oonstitute a nuisanoe of any kind (public or private). or for any purpose or in any w&y in violation of the oertifioates of 000upanoy (or other similar approvals of applicable governmental authorities). (b) No , No oovenant, agreement, lease, oonveygnoe or other instrument shall be effeoted or executed by Developer, or any of its sucoeseore or assigns, whereby the -a1- s J .-...`.. - •. ,.:�'_� ..:.. .. ...�. ...��. a?r.•r._.•-. ta.4 it 4 � fife• Leased Property or any portion thereof is restricted by Developer, or any successor in interest, upon the basis of race, color, religion, sea, national origin, or handicap in the sale, lease, use or occupancy thereof. Developer will comply with ail applicable state and local laws, in effect from time to time, prohibiting discrimination or segregation by reason of race, color, religion, sex, national origin, or handioap in the sale, lease or occupancy of the Leased Property. Developer agrees that it shall not discriminate as to race,. sex, color, oreed, national origin, or handicap in connection with its use of the Leased Property. Purthermore, Developer agrees to mate reasonable accommodations for the handicapped and that no othetvise qualified handicapped individual shall solely by reason of his or her handicap be exoluded from participation in, be denied the benefits of. be denied access to facilities, or be subjected to discrimination under any program or activity allowed under this Lease Agreement. (0) Permitted Uses for Leased Property. The only uses permitted on the Leased Property are: Owner or renter-000upied housing, oommeroial space, and related parting for both, subject to the limitations that the residential structures shall comprise sixty percent (60%) of the total leasable area, not including parting, with fifteen percent (15%) of same 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) 11113. It is intended and agreed hereby that the restrictive covenants contained in this Section 2.2 shall be -22- A t binding upon the City and the Developer, their suooeseors and assigns, and are oovenants running with the land and sucoegsors in interest, as the Case may be, and shall be for the benefit and in favor of, and enforoeable by the City and Developer respeotively, as the Case may be; provided, however, that suoh oovenants shall be binding on Developer, and the City, and their respeotive euooessors in interest and assigns, only for suoh period as eaoh shall have (i) fee title to the Leased Property, as to the City, and (ii) the leasehold estate herein demised to Developer, as to Developer. It is further understood that suoh covenants shall not be enforoeable by any other third party. Seotion 2.3. The following easements presently ezist or are hereby granted. Ca) ting RAMementa. There are no existing easements on the Leased Property. (b) WARAMAntB Granted to Developer. The City grants unto Developer, its euooessors and assigns the following: (i) the non-ezolusive right and easement (the "Developer Utility Saeement") to install, maintain, repair and replace utility facilities suoh as water, gas, eleotrio, and telephone lines and storm and sanitary sewers underground within portions of the Leased Property, and any other property owned by the City whioh is not a dedioated street, in the looation shown therefor on the approved Construction Plans or in suoh other locations as may be approved by the City Manager from time to time; -23- 1 F �` s- x£ r_ (ii) 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 (III) any other right or easement reasonably necessary to accomplish Developer's purpose. It is the intent of this Agreement that the Developer Improvements be confined to the limits of the Leased Property. (0) Limitations en Basement Rights. The rights and easements granted or'reserved in paragraphs (a) and (b) of this Section 2.3 shall be limited as follows; however, no provision stated herein shall add to or detract from any existing easement presently encumbering the property by any other governmental entity or service district: (1) The party having the benefit of any such easements (A) shall carry on any oonstruotion, 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 (3) shall not carry on any construction, maintenance or repair activity in the easement area in such a manner as to unreasonably interfere with the use and enjoyment of the servient tenement. and in carrying on such activities, will r do so in such a manner as not to unreasonably interfere with business or businesses then being conducted in the Improvements or on the Leased Property by Developer or its Subtenants. _Tr �RILYAXSatEb`Gt'x£SCi;:.�. ♦.-.t,..s�e.1.T. L.. .. _.. 1.. ,::ter _:._. •'i:, ., ,. .. ...., .. v., .,. n. ._t... .. _.. _.. _._ t.. v..iva Q: fi.ila.2r �:G 0 (2) Rxcept 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 such party notifies the other 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) ents. Unless a shorter term is herein 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 8.2. (e) tarZ 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 fixing their location as such requesting party shall doom 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 3.4. Title e# Leased Pro.VArjY. The City represents, covenants and warrants that it has good and 41iC i 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 or other restrictions. If title is found defective, thereby rendering title unmarketable City shall have one hundred and eighty (180) days from reosipt of notice of such finding to remove said defeot(s), and if City is unsuooessful in removing them within said time, (i) Developer shall accept the title as it then is or (ii) City and Developer shall mutually agree to be released, as to one another, of all further obligations under this Lease; however, City agrees that it will, if title is found to be unmarketable, use diligent efforts to correct the defeot(s) in title within the time provided therefor, including the bringing of necessary suits. Seotich 2.5. ReaUi. (a) gentala Pay&biQ. Developer oovenants and agrees to pay the City during the lease term as rental ("Rental") for the Leased Property, an Annual Basic Rental equal to the following, as applicable: . (i) An Annual Basic Rental of one dollar ($1.00) per year for each of the first five Rental Years following the Rent Commenoement Date of the Lease; and (Li) An Annual Basic Rental of one tenth of one percent (0.1%) of Project revenues and one hundred percent (100%) of all net cash flow in ezoess of a cumulative ten percent (10.0%) return on Developer's. Cash Equity beginning in Rental -a8- w �t tf t:l �,�sd -0 Year 8 and terminating, at the and of the Original Term and applicable Renewal Term(s), pursuant to the terms and provisions of Sections 2.1(b) and 2.1(o) of thin Agreement. (b) Payment of Rental. Annual Basic Rental shall commence to aoorue on the Rent Commenoement 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 aoorus 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 wa�i due until paym , 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 nest accruing Rental Year. If there is an under payment of Annual Basin 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) Ad3,Nted r""Al 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 SV� f� . -27- _ n s r� 2.8(o) (the "Adjusted Annual Rental`), which shall continue to be paid as set forth in Section a.d(b) herein. The Adjusted Annual Rental shall be determined by competent and disinterested KAI certified (or substantially equivalent licensed appraisers if ;CAI 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 seleoti-On`to1odaur 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 (e) 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 (180) 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 cot 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 dndiOial District -a8- I ti•.wC �.rx -. a A 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 2.6 to have the Adjusted Annual Rental determined not 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 teased Property is made pursuant to Section 2.e(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 suo� determination and notice of such determination. In no event shall the Annual Rentals for any period during the Rental Year be lose than the Annual Rentals actually paid for the immediately preceding period. Notwithstanding the foregoing provisions in this Section 2.5(o), the City Manager and the Developer may mutually agree to an Adjusted Annual Rental that is less than the Adjusted Annual Rental no determined by _the appraisal process set forth in 8e0tion 2.5(0 and d) herein. (d) Task of a . The appraisers when selected shall be instructed that they are to determine the fair rental value of the messed Property herein demised based on it's highest and beet use at such time. The Adjusted Annual Rental appraisal shall be -29- • • " writing and copies thereof shall be given to the City and the Developer ninety (90) days prior to the nest ensuing Adjustment Date. The amount of the Adjusted Annual Rental shall be the Adjusted Annual Rental for the remainder of the Rental_ Year, 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 Taxation. 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 tazes shall be paid by the Developer when due and payable. The City covenants to join with the Developer as a oo-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 five percent (5%) of the gross sales price of each unit sold and conveyed. The City intends to use the income received to establisha, loan program for oondominium 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) Develelver's Records. For the purpose of permitting verification by the City of any amounts due on account of Annual -30- • t2 zt 4Ze74 ' � � � a � ♦.r�dit�Frtj�tq l {- L • Basic Rental, Developer will keep and preserve for at least three (3) years in Dade County, Florida, at the address specified in Section 12.6, suditable original or duplicate books and records for the Project which shall disclose all information required to 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 exoess 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 'sizty (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 on behalf of Principal Partner of Developer stating specifically that such offio>er has examined the report, that such officeros examination r= included such teats of Developers books and records as such _ Officer considered necessary under the circumstances, and that such report presents fairly the Rental due with respect to the -31- a preceding Rental Year. 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 reoorde as may be neoessary to certify .the amount of the Rentals due with respeot 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 Is audit Van in lieu of an annual report by Developer or if the City audits the annual report on its own initiative and demonstrates a discrepancy of more than three percent (3%) in the amount of Annual Basic Rentals due to the City. If the audit report discloses that the amount of Rental paid by Developer exceeded the amount due to the City by more than three percent (3%). City Shall bear the Cost of such audit. Developer shall provide the City with an annual Audited Financial Statement, certified by an independent Certified Public ACOountant. within ninety (90) days after the close of each Rental Year which shall be subject to the audit provisions of the previous subparagraph. Section 2.8. Covenants faX Payment of Public Cbar,Qee D"AILDS&P. 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 -32- t': .; .-,: ...,.mot .... '.;+.. ... �. .: , ..:<.. '•.... ' . •.. ! .'..� . _ ^,{ Y� 34_ ji sewer rents, rates and oharges (all suoh taxes, publio assessments and other publio oharges being hereinafter referred to as "Publio Charges") levied, assessed or imposed by any publio authority against the Leased Property, inoluding all improvements thereon in the same manner and to the same extent as if the same. { t together with all improvements thereon, were owned in fee simple by Developer; provided, that Developer's obligation to pay and a disoharge Publio Charges levied, assessed or imposed against or with respeot to Leased Property shall not oommenoe until the Possession Date; all suoh oharges shall be prorated if the s ;f i Possession Date is not at the beginning of the oalendar year. Notwithstanding the provisions of this Seotion 2.6, Developer _ shall have the right to oontest the amount or validity, in whole or in part, of any Publio Charges by appropriate prooeedings. The City agrees to oonsent to and/or formally join in any suoh prooeedings• to the extent it may be allowed by law, if suoh oonsent and/or joiner be required by law for the proseoution thereof. Developer shall pay all oharges for metered water. sewer servioe oharges and other fees or oharges lawfully imposed by any publio authority upon or in oonneotion with the Leased Property. The City agrees that it will not impose any speoial assessment or other Publio Charges (other than ad valorem real property taxes) against the Leased Property or the Improvements with respeot to the oonstruotion, operation, repair and x f saintenswe of any improvements the City is obligated to -oonstruot pursuant to this Lease. The City retains all its .'A rights to impose nondisoriminatory speoial assessments or other publio oharCan for all other purposes. n -33- _ a 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 .�6 City Manager evidencing the payment of any Public Charges; which were delinquent or payable with penalty thirty (30) days or more !4 Y prior to the date of such request. Section 2.7. A pr_ovals and Consents. Wherever in this Lease the approval or consent of any party is required, it is understood and agreed that such approval or consent will not be unreasonably withheld or delayed. Section 2.8. Beotr+ty and Police Protection. Developer shall have the responsibility for providing all security and protection for the Leased Property. Pi The City shall provide the same security and police i protection in the Leased Property, as is afforded all other City - open spaods with appropriate augmentation in the exclusive judgment of the City Manager during periods of high pedestrian activity including (without limitation) during special publio f i events. 1 a Section 2.9. Cendi_tien et Leased PronertZI. On the } Possession Date the City shall deliver to the Developer possession of the Leased Property, free of any and all liens or eaoumbrances or tenancies or other rights or claims of rights to its use and,000upanoy. Prior to the Possession Date, the Leased Property shall be maintained by the City and delivered to Developer in good serviceable condition, ordinary gear and tear excepted. The City agrees not to adversely or materially alter -34- rR 74 - v �3 t t • ti,,. y,Sr wiF _ t Cf • µ4 j.t T i-l 1l Y Al<• 4 kry` y r lk- the Leased Property prior to the Possession Date without = Developer's prior written approval. The City shall without expense to Developer or public assessment against the Leased z Property, provide for the abandonment of all public streets and rights of way within the Leased Property. The City shall cooperate with and assist Developer in the termination or transfer to the Developer, of all existing rights with respect to _ water mains, sanitary sewers, storm drains, conduits, gas and r electric or steam distribution lines and fire alarm, traffic and phone systems, if any, in the Leased Property. The City shall _ also transfer to Developer all easements and rights of way on the p g � • 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 Agreement with respect to the Leased Property as rapidly as praoticabletand in a manner which will 000rdinate in a reasonable manner with the construction of the Developer Improvements. 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 including but not limited to clearing of foundations, basements, and abandoned underground } utility lines. Y -3a- � r t'. { t K c i ARTICLE III Section 3.1. Conformity of Plane. Preliminary Plans, Scope 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 oonformity with this Agreement, the Miami Charter and Code, the South Florida Building Code, and all other applicable state, county and local. laws and regulations. Section 3.2. Preliminary Piano. The City acknowledges that prior to the ezeoution of this Lease, Developer has submitted to 4 4 the City and the City has approved the concept plans (the ' f "Concept Plans") for the construction of the Developer Improvements, a list of which is attached hereto as Exhibit .1. f` Developer shall submit to the City Manager at the times hereinafter set forth, two sets of plans (the "Preliminary Plans"). For the purpose of this Lease, "Preliminary Plans" F_ shall consist of site plans and structure elevations and sufficient detail to show site planning, arohiteoturai design and layout, materials, building construction, landscaped design, a006e80 streets, and sidewalks. The City acknowledges that, in Y- Y order to•seet the schedule for construction, the Developer shall be eubnitting 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 -36- fir= �MT i r k 4 n f E 1Y ke,' ��u.rssn� tr�a�rk5.s. l -7t of the Development 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 oonstruoted shall be submitted to the City Manager on the date set forth on 8zh4bit H. Upon reoeipt of eaoh set of Preliminary Plane representing a oertain stage of oonstruotion, the City Manager shall review the same and shall promptly (but in any event within fifteen (15) days after suoh reoeipt). give Developer written notioe of his approval or disapproval setting forth in detail his reasons for any disapproval. The City Manager's right to disapprove the Preliminary Plans submitted shall be limited to matters depioted in the Preliminary Plans for Developer Improvements whibh do not oonform substantially to the Conoept Plans or previously approved Preliminary Plans for other stages of the Projeot or are new elements not presented in the Conoept Plans, or matters which are violations of this Lease or of applioable governmental ordinanoes. oodes, plans, laws or regulations. If no written response from the City Manager is delivered to Developer within fifteen (ld) days after the submission of suoh Preliminary Plans, or any resubmission thereof as hereinafter provided. they shall be deemed approved, e=oept that no violations of applioable governmental ordinances, oodes, 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 written -37- 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 herein&bove provided for an original submission, until the same shall be approved by the City manager, provided, that in any event m Developer shall submit all Preliminary Plans for_the r construction of Developer Improvements which meet all of the ground !or disapproval of which the City Manager has given written 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. sense Plane. For the purpose of the Lease, wSoope pl&mxo shall consist of such plans and specifications an shall be sufficient to enable the general contractor, retained by the Developer to oommence construction of the Project on a so- called "fast -track" basis. It is contemplated that such Scope Plans will consist of working drawings and specifications that are at least 30% complete. Not later than One Hundred Twenty (120) days after the Developer has received a firm financing commitment for & particular stage of the PrOJOOt. Developer Shall submit to the City Manager two gets of Scope Plans for the same stage. Upon receipt thereof, the City manager shall review the same and shall promptly (but in any event within fifteen (15) days after such receipt) give Developer written notice of its approval or disapproval, setting forth in detail its reasons for any disapproval. The City Manager's right to disapprove the -38- k'112f7; Scope Plans submitted shall be limited to matters depioted in the Soope Plans whioh do not conform Substantially to the approved Preliminary Plans or previously approved Soope Plans for other stages or new elements not presented in the approved Preliminary Plans or are violations of this Lease or of governmental ordinanoes, oodes. plans or regulations. If no response from the City is delivered to Developer within fifteen (15) days after the submission of suoh Soope Plans, or any resubmission thereof as hereinafter provided, they shall be deemed approved ezoept that no violations of applioable laws, ordinanoes, oodes, 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 reoeived the notioe of suoh disapproval, resubmit the Soope Plans for that stage to the CXty Manager, altered to most the grounds of disapproval. Any resubmission shall be subjeot to review and approval by the City Manager, in a000rdanoe with the prooedure 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 Soope Plans for the oonstruotion of Developer Improvements which meet all of the grounds for disapproval of whioh the City Manager US given notioe 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 Soope Plans. 8o approval by the City Manager of any Soope Plane or Preliminary Plans pursuant to this Artiole shall relieve. Developer of any obligation it may have at law to file suoh Soope -39- Plans with any department of the City- or any other governmental authority having jurisdiotion over the issues or to obtain any building or other permit or approval required by law. Developer aoknowledges that any approval given by City Manager pursuant to this Artiole III shall not oonstitute an opinion or agreement by the City that the Plans are structurally suffioient or in complianoe with any laws, oodes or other applioable 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 oopies of all plans and speoifioations used in the oonstruotion of the Developer Improvements. Developer agrees to use its diligent efforts to obtain the oonsent of the Leasehold Mortgagee and the Arohiteot to the vesting in the City of all rights, title and Interest in the piano and speoifioations if this Lease is terminated by reason of any Event of Developer Default. Seotion 3.4. Qonetruotion Plane. For the purpose Of this Lease, "Construction Plans" shall oonsist of final working drawings and specifioations inoluding (without limitation) the following information, (a) definitive arohiteotural drawings; (b) definitive foundation and struotural drawings (the "Final Substruoture Plans"). (a) definitive eleotrioal and meohanioal drawings including (without limitation) plans for all lighting faoilities affecting the exterior appearance of the Developer Improvements; and (d) Final speoifioations, but exoluding drawings and speoifioations relating to subtenant improvements. Not later than one hundred and eighty (180) days after approval -40- • of Scope Plans for a particular stage of construction, Developer shall submit to the City Manager two nets 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 fifteen (15) days after such receipt), give Developer written notice ot;ita.approval or disapproval, netting forth in detail its reasons for any disapproval. The City Man gar Ia 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 Scope Plans or previously approved Construction Plans for other stages or are new elements not presented in the approved Scope Plans or are violations of this Lease or of governmental ordinances, codes, plane or regulations. if no written response from the City is delivered to Developer within fifteen (15) 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 written notice of such disapproval, resubmit the Construction Plans for that stage 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 acoordanoa 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 -41- submit all Construction Plans for the construction of Developer Improvements which meet all of the grounds for disapproval of whiOh the City Manager has given notioe not later than nine (9) months after approval of all of the Soope Plans. The City and the Developer shall in good faith attempt to resolve any disputes regarding the Construotion Plans. No approval by the City Manager of any Construotion Plans or Soope Piano pursuant to this Artiole shall relieve Developer of any obligation it may have at law to file such Construotion Plar►s with any department of the City or any other governmental authority having jurisdiotion over the issues or to obtain any building or other permit or approval required by law. Developer aoknowledges that an approval given by City Manager pursuant to this Artiole III shall not oo4stitute an opinion or agreement by the City that the plans are struoturaily suffioient or in oomplianoe with any laws, oodes or other applioable regulations, and no suoh approval shall impose any • liability on or waive any rights of the City. Developer agrees that it shall provide the City with oopies of all plans and speoifioations used in the construotion of the Developer Improvements. Developer agrees to use its diligent efforts to obtain the oonsent of the Leasehold Mortgagee and the Arohiteot to the vesting in the City of all rights, title and interest in the plans and speoifications if this Lease is terminated by reason of an Event of Developer Default. Section 3.5. Pao?{tiee to be Conatruoted. Developer agrees to ereot the Projeot on the Leased Property, at its sole -4a- l�V 'L'2 �i'• A t t +' �-iilE.l1 F ..k. ."xv • : haw. � .'.s'a' y :. .4 •.7 � iTFl�l'i7 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 3.6. a of Leased Property. 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 appearanoe, commensurate with the quality of maintenance found in the area shown and designated as "Developer Maintenance Area" on Exhibit G all of the property and improvements including, without limitation those portions of the Leased Property shown and designated as "City Maintenance Area" on Szhibit G. if the City fails to maintain the "City Maintenanoe 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 nezt aooruing Annual Basic Rental payments and Additional Rental Payments equal to the amount of the aotual cost Developer ezpeaded for the maintenanoe. The Developer, without cost or ezpense 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 appearanoe all of the property -43- r and improvements located. in that portion of the Leaned Property shown and designated as "Developer Maintenance Area` on WM4 it 8. Section 3.7. A02M. 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 pbragraph 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 I8 of this Agreement. ! Section 3.8. Construction Period. Developer shall oommenO.e construction of the Developer Improvements not later than thirty (30) days after the Possession Date or as soon thereafter as weather permits (but not earlier than the approval of the Scope 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 E. The City agrees to submit Preliminary Plans and Construction Plans for City Improvements to Developer for review and oomment for any City Improvements to be designed and constructed by City. At the request of either party, the parties will execute and deliver from time to time such certificates, documents or instruments as may be appropriate to confirm the dates of commencement or -44- dt. tF:wTs��lL. �- i-{Ifa .3c�r�4E �:�'r d.:E._.:_ •�,�s. .i".nv:L-ii�,.i...+��.�i.f+1�LC� i r v ' i��k:i�.�L�r t7f�L1.A '7k��1f7� `f 1i fy' x.•+.i`'' 0�. oompletion of construction as above provided, whioh certificates, documents or instruments may be recorded by the party requesting the same at its ezpense. Section 3.9. Progress of Construction. Subsequent to the delivery of possession of the Leased Property to Developer, and until construction of the Developer Improvements has been oompleted. Developer shall keep the City Manager apprised of the progress of Developer with respect to such development and oonstruction. During suoh period the work of Developer shall be available for inspeotion 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 ezeouting this Agreement. represents it has visited the site, is familiar with -local oonditions under which the oonstruction and operation is to be performed, will perform all test boringw and subsurface engineering generally required at the site under sound and prudent engineering practices. and will correlate the results of its test borings and subsurfaoe engineering and other available otudies 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 oopy of all results. The City makes no warranty as to subsoil oonditions. Developer shall not be entitled to any adjustment of Rental or of any applioable time requirements in the event of any abnormal subsoil oonditions unless the subsurface conditions are so unusual they could not have been reasonably anticipated. -4d- Section 3.10. 1 f oate of Final Gomn e ion. Promptly after completion of each stage of the Developer Improvements and Developer's receipt of a Certificate of occupancy 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 provisioner of this Agreement, or is otherwise in default, and what measures and acts, in the opinion of the City Manager, are neoessary for Developer to take or perform in order to obtain such certification. The Certificate of Final Completion shall certify that Developer has satisfied all of its obligations. which are capable of being satisfied with respect to specific stages during the construction phase, to the City. Section 3.11. Connection of Ht1141-no to Utilities. Developer, at its sole cost and expense, will install or cause to be installed all necessary oonneotions between the Developer Improvements constructed or ereoted by it on the Leased Property and the water, sanitary and storm drain mains and mechanical and electrical conduits whether or not owned by the City and/or the -46- li;�n Miami -Dade Water and Bever Authority. Developer shall pay for the additional cost, if any, of locating and installing new facilities for sever, water, eleotrioal, and other utilities as needed to service the Leased Property. City, at its sole cost and ezpense, will install or cause to be installed up to the property line of the Leased Property all necessary utility connections.' Section 3.13. pesmitA and A93;Xpy&IB, Bzoept as otherwise provided i7 this 8eotion 3.12, 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 provision z of this Agreement including, but not limited to, any alterations and renovations made pursuant to Section 3.1e 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 ,tanager'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, than 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 aonstruotion and completion of the -47- C�y Developer Improvements with the exception of the permits and approvals required pursuant to Section 380.08, Plorida Statutes 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 3.1E 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 ezaotions for which it is responsible. In connection with the satisfaction of any requirements imposed by the Environmental Lava the City agrees !to pursue a Binding Letter of interpretation or other Dade County Development of County Impact process for any portion of the Leased Property, the City shall be financially responsible for filing and processing any necessary documentation submitted in connection therewith, provided, however, that nothing herein contained shall be construed to require the City or Developer to take any act or expend any funds in order to comply with any of the conditions oontained within any Development Order, or other official action, issued as a result of these pursuits. Developer shall have the right to review and approve any such documentation prior to its submission to the relevant governmental agency, and shall be notified of all meetings with governmental staff or officials related to the processing of any of the aforesaid administrative -48- proceedings so that Developer or its representative shall have the option of attending such meetings. Developer agrees to cooperate with the City to the maximum extent possible in these administrative proceedings, including, but not limited to, providing such technical assistance and information as Developer may have reasonably available to contribute to the City's efforts. Section 3.13. Cemplianoe math Laws. Developer will comply in every respect with any and all federal, state, county and munioipal laws, ordinances, rules, regulations, orders and notioes 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, ordinanoe, rule, regulations, order.or notice with which Developer may be required to comply hereunder. Section 3.14. Rxtension of Time Rev�iremente. The times within which Developer must submit Preliminary Plans, Scope Plans, Construction Plans and evidence of equity capital and commitments for mortgage financing, and the times within which Developer moat oommenoe and complete the development of the Leased Property and the construction of the Developer Improvements thereon as specified in this Article may be extended in writing by the City Manager in his sole discretion. subject to Section 7.4 which otherwise provides an extension, for such -49- periods of time as he deems advisable, for good and suffioient oause shown by the Developer to the reasonable satisfaotion'of the City Manager. Any suoh extension of time shall be in writing and in suoh form as will enable it to be reoorded among the Land Reoords of Dade County. Beotion 3.15. A Renovations. After the oompletion of oonstruotion of the Developer Improvements, Developer from time to time may mate suoh alterations or renovations thereof as it shall deem desirable when suoh renovations cost less than ten thousand dollars ($10,000). 80 renovation or alteration whioh affects the exterior appearanoe of the Developer Improvements or substantially affects the overall oharaoter and appearanoe of the Projeot or whose oost is ten thousand dollars ($10,000) or more shall be made until suoh time as the renovations are permitted by the Building and 2oning Department and, when exterior, as approved by the Planning Department. Any renovation or alteration of the Developer improvements whose oost is fifty thousand dollars ($50,000) or more shall require the City Manager's approval of definitive oonstruotion plans and speoifioations therefor, whioh written approval or disapproval to be given within thirty (30) days of reoeipt of the request or be deemed approved. Developer must also secure and pay for any and all permits and approvals required to perform any of the oontemplated alterations or renovations. -80- 4►Yf.BIIdlSli�{�+'�`t�Y�-+s?t1'�:Y�`d"ti1d�3'.IJri�d�:�a'.i4dt-e?..dr:6 e w ARTICLE IV Section 4.1. Land trees. 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 of this Agreement. Section 4.2. Character and Ogera •ion of Improvements . The parties recognize and acknowledge that the manner in which the Leased Property and Developer Improvements are developed, used and operated are matters of critical concern to the City by reason of the eoonomio development of the downtown area of the City. From time to time Developer will establish.suoh reasonable rules and regulations governing the use and operation by Subtenants of their premises as Developer shall deem neoessary or desirable in order to assure the level of quality and character of operatioof the Improvements required herein, and it will use all reasonable efforts to enforce such rules and regulations. In the event the Developer Improvements are converted to condoainiums. Developer shall prepare oondominium documents establishing such reasonable rules and regulations governing the oocupancy of Condominium units by owners of those units. Said documents are subject to the approval of the City Attorney and the rules and regulations included therein shall be in accordance with the provisions not forth in Chapter 718, Florida Statutes -al- governing condominiums and shall not conflict with this Lease or City's interest. H Section 5.1. As used herein, the term, a) "Transfer' means: W any total or partial sale, assignment or conveyance (other than by a Leasehold Mortgage or Finanoing 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; or UQ any transfer of the stools of tho Principal Partner; or any merger, consolidation or sale or lease of all or substantially all of the assets of the Principal Partner or of any Owner, other than an Owner whose shares are publioly 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 Finanoing Sublease. Developer Shall be allowed to syndicate the Project thereby creating additional limited partners with its investors without Such syndioation.00nstituting a transfer or requiring the approval of the limited partners by the City Manager. -52- tE .E Y, Furthermore, any sale of the Developer's or Owner's interest in the Project to the Principal Partner or any subsidiary or 3 affiliate of the Principal Partner in permissible and shall not -5 constitute a transfer. x (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 stook of the Principal Partner of Developer (exoluding any shareholder of an owner whose shares are publicly traded) or other form of ownership interest of the Principal Partner; and (11) any person, firm, corporation or other entity P which owns, directly or indirectly, legally or beneficially, more # ,f than fifty percent (50%) of the stock of the Principal Partner of j j Developer or other form of ownership interest of any entity . i described in clause (i) or this clause (ii), but shall not ' i x include any shareholder of an Owner whose shares are publicly s traded. (o) "Owner whose shares are publicly traded" means an Owner: (i) who, as a Principal Partner has filed an effective registration statement with the Securities W Exchange Commission (or its successor) with respect to the shares of pray class of its voting stook or of all classes of any other form of ownership interest which includes voting rights; and (ii) whose voting stoop as a Principal Partner and other form of ownership interest described in clause (i) is -03- 4z `Zy �A 1 flF�; •� ✓t { I�F s r �:a3dEs*` �"_L•'. . �. iY,S�ic:�7�"„ifa:K�'�d"� .. �Y1ii�'1�,..' :ies=,.��,5�t�fjf � f ,,� a x ;, e 4u�,i listed for trading purposes on a securities exchange subjeot to the regulatory jurisdiotion of the Securities W Sxohange Commisxion (or its suooessor) or is publicly traded over the counter. Seotion 5.2. Purfle2e2 of ReatriQtionA en Transfer. This _ems+ Lease is granted to Developer solely for the purpose of _ t..- L 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 oommunity; (b) the substantial financing and other public aids that have been made available by the City for the purpose Of mating such development possible; and (o) the fact that a transfer of the stook of the Principal Partner 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 stook or with respect to the identity of the parties in control of Principal Partner 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. qualitioations 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 -84- �f � .. i�' t-i3� ?• -,4� n2'_. �.}'�L('3YflO:'3P'XG2i�RY - '�..��.�a�srca43a' 4 accept and rely on the obligations of Developer for the faithful performance of all undertakings and covenants by it to be performed. section 5.3. Developer, on behalf of itself and any and all' Owners, represents and warrants that neither Developer nor any owner has made, created or Buffered any Transfers. Bsoept 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 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 6-1(c)(iv) of this Agreement. -86- k 0 (a) 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 taring possession of the Project, shall have entered into an Acceptable. Operator's Agreement as described in Subsection 8.1(0)(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 or one who has automatically qualified as an Acceptable Operator or (ii) a purchaser who has automatically qualified as an Acceptable Operator, or has entered into an Acceptable Operators Agreement with an Acceptable Operator, or who in the City Manager's opinion is qualified to own the Project (an "Acceptable Purchaser"). (e) Any Transfer to a joint venture, general or limited partnership, syndicate, joint stook 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 reasonable 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 = 8.1(0)(iv) of this Agreement. -86- M x" tf i (f) Any Transfer to an entity which in not an Owner, all of R the stook or other form of ownership interest of which is caned by an Owner. (g) Any Transfer of a limited partner or the admission of additional limited partners. (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 ob itable trust, a blind trust or for estate planning purposes for the immediate family. Any consent to a Transfer shall not waive any of the City's rights to consent to a subsequent Transfer. Any Transfer made in violation of the terms hereof shall be null and void and of no force and effect. Section 5.4. Notion of Transfer _ Information as to - (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 that the criteria established for approving such — Transfer has been oomplied with (including all information necessary for the City wanager to mate 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 Manager shall within, fifteen (15) days of its receipt of such information, -57- t y, J } r , 1i advise Developer if it shall consent to sane. If the City Manager shall not consent to a Transfer. the City Manager shall state the reasons for such disapproval in his notice to Developer withholding his consent. It 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 (18) days after the date of Transfer. (b) Developer shall from time to'time throughout the term of this Lease as the Cityshall reasonably y request, furnish the . City with a complete statement, subscribed and sworn to by the President or Vioe-President and the Secretary or Assistant 7M Secretary of the Principal Partner, setting forth the full names Is and address of holders of partnership interests in Developer, or any Principal Partner or the stook of any Principal Partner and the extent of their holdings, and in the event any other parties have a beneficial interest in such stook, their full names and addresses and the extent of such interest as determined or indicated by the records of Developer, by inquiry which such offioers 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 offioers 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. gffeetuatien of certain Permitter Tr nnfern. No Transfer of the nature described in subsections (d) and (e) of _gg_ r' .sY . �Y. 4 2 . Section 5.3 shall be effeotive 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 whioh 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 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 suoh transferee of, or any other sucoessor in interest whatsoever to, the leasehold estate in the Leased Property or the Improvements, or any part thereof, shall whatever. the reason, -not assume suoh obligations or so agree, shall not (unless and only to the extent otherwise speoifioally provided in this Lease or agreed to in writing by the City) relieve or aooept such transferee or euooessor of or from such obligations, conditions or restrictions, or deprive or limit the City of or with respect to any rights, remedies or oontrols with respect to the leasehold estate in the Leased Property or the oonstruotion of the oonstruotion of the Developer Improvements. N Section e.e. TranaIarm of the ntivIa 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 purohaser, assignee, mortgagee 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 3.6. whioh 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 ail Subleases, excluding individual residential tenant and parking leases, 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 -6o- Property or Improvements at any time and from time to time during the term of this Lease with such Subtenants and upon such oommercialiy reasonable terms and conditions as Developer ohsll, 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 fifteen days (16) days after submission of such proposed dublease and information, the City shall notify Developer in writing whether the proposed sublease is approved. In the event the City shall fail to so respond within fifteen (15) days after submission of such proposed Sublease and information, the City shall notify Developer in writing whether the proposed sublease is approved. In the event City shall fail to do so respond within fifteen (15) days after submission of such Sublease and information, the same shall be conclusively deemed to have been approved by the City. Section B.S. Minority Partioivation in Developer agrees that not less than ten (10%) of the ownership interest in Developer shall be held initially by persons who are Black Americans or Hispanic Americans or entities who would qualify as a Minority Business Enterprise controlled by Black Americans or Hispaaio Amerioans as the term "Minority Business Enterprise" is defined in that certain Minority Participation Agreement attached hereto as Exhibit F. notwithstanding any provision in this Lease to the contrary, any transfer by any original investor of the Developer in violation of Article V shall be null and void, but shall not be deemed to be an Event of Developer's default. ARTICLE VI MORTGAGE FINANCING: RIGRTS OP MORTGAGIM Section 6.1. Leasehold Mortgage. (a) Notwithstanding the provisions eat 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, j - Sale-Subleasebaok transaction, deed of trust or other security Instrument, 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 seouring 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 Improvements._ Developer shall deliver to City promptly after execution by Developer a true and verified copy of any Leasehold Mortgage (as r = defined below), or any Financing Sublease and any amendment, -ea- �w r rS{1'6"i�i3l�`lk`� �'.�h"±ral.+'i',�-.. j.w . .'�t3.,v-tan i'%'cyGifi� +.v=`k.r�L✓.r±ls"!�T,'s�•.!�-�'�?%L`�s4'�"w`'!� modification or eztension 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 lava of the United States or any commercial bank, or any savings and loan association, savings bank, trust company or insurance company organized under the lava 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, or any public limited partnerships or any lender life insurance company; "Leasehold 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 "Lender" shall mean an "Institutional Investor" who is the owner and holder of a Leasehold Mortgage. per• homever, 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-reoognized title insurance company doing business in Miami. Florida. . -63- �FR -- (a) During the oontinuance of any Leasehold Mortgage until such time as the lien of any Leasehold Mortgage has been extinguished, and if a true and verified oopy of suoh Leasehold Mortgage shall have been delivered to the City Manager together with a written notioe of the name and address of the owner and holder thereof ae provided.in Seotion 8♦1(a) above: (1) The City sha1j'zat'agree to any mutual termination nor sooept any surrender of this Lease (exoept upon the expiration of the full term of this Lease) nor shall the City oonsent to any material amendment or modification of this Lease or waive any rights or oonsents it may be entitled to pursuant to the terms hereof, without the prior written consent of Lender; (ii) Notwithstanding any default by Developer in the performanoe or observanoe of any oovenant, 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 oocurred and be continuing, unless and until the City Manager shall have given Lender written notioe of suoh Event of Default and Lender shall have failed to remedy such default as per Civ) below or to aoquire Developer's leasehold estate oreated hereby or to oommenoe foreclosure or other appropriate proosedings in the nature thereof, all as set forth in, and within the time speoified by this Artiole VI; (iii) Subjeot to the provisions of Subparagraph Civ) immediately below, Lender shall have the right; but not the obligation, at any time prior to termination of this Lease and -64- �tkz- o without payment of any penalty, to pay all of the rents due hereunder, to provide any insurance, to pay any taxes and mare 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 shell be as effeocive 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 ninety (90) days after receipt of written 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 ninety (90) day period, either commence and diligently prosecute a foreclosure action or such other proceeding or take whatever action to acquire Developer's leasehold interest as may be necessary to enable Lender to obtain such possession, provided that (a) Lender shall have fully oured any default in the payment of any monetary obligations of Developer under this Lease within such ninety (90) day or longer period and shall continue to pay currently such monetary obligations as and when the same are due, (b) Lender Shall within six (8) months of the date that it takes possession -86- . �b..1�taMYe�fiMl�llhe�2�� •l.. iJ' i +fY.•.:':n at the Leased property enter into an agreement on terns and conditions reasonably acceptable to the City with an Acceptable Operator for the continued operation of the Protect (hereinafter called "Acceptable Operator's Agreement"), and (a) Lender shall have acquired Developer's leasehold estate created hereby or comsenoed foreclosure or other appropriate proceedings in the nature thereof within such ninety (90) 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 ninety (90) 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, (o) Lender shall have fully cured any default in the payment of any monetary obligations of Developer under this Lease -66- 3� which do not require possession of the Project within such ninety (90) day period and shall thereafter continue to faithfully perform all euoh monetary obligations which do not require possession of the Project, and (d) within two (a) months after Lender shall have gained possession of the Project, Lender shall have entered into an Acceptable Operator'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 except that a Lender shall not be bound by the provisions of Section 5.8 hereof. Notwithstanding the foregoing, the City agrees that Lender shall not be obligated to oomplete 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 (iv) and (v) above for commencing or prosecuting such foreclosure or other proceedings shall be extended for the period of suoh prohibition, provided that Lender shall have fully -87- �:Si •i:.r oared any default in the payment of any monetary obligations of Developer under this Lease and shall continue to pay currently such monetary obligations as and when the same fall due, and 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 2.8; (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 nave 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 -88- ;;art • "fit.. • h as ;:: t a >• ��`�ai%�i�f` �t� �at�ssi �r�^.��3rzn.�_:fs£+�'�_,fA�k3t:. the Developer's leasehold estate unless otherwise provided in this Article VI; provided, that Lender or any such foreclosure sale purchaser must enter into an Acceptable Operator'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 foreolosure 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 conneotion with any such assignment or transfer Lender takes back a mortgage or deed of trust encumbering suoh leasehold interest to secure a portion of the purohase 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 Operator's Agreement; (is) Should the City terminate this Lease by reason of any default by Developer hereunder, the City Manager shall give written notice thereof to all Leasehold Mortgagees and the City -89- F 4 a c �,_�r , S� "�3r�1'iit�lW4`lii'r�Llf"'viut �-�+su..2�.'� - :.—'-c•-' r ',. d__,_•._..�i_._.±� - ____ _,. �1' z.r_,.�x:__.__=a,7a cssrik}.`l+ -� y1R,x4,e�"�li�'i� Manager shall. upon written request by Lender to the City Manager 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 are contained herein, prey vided, however, that the City's exeoution 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 Improvements or the priority of such new lease (except ae to aotions taken by the City during the period oommenoing on the date of termination of this#. Lease and terminating on the date of such new Lease). The City's delivery of any Improvements to Lender pursuant to such new lease shall be made without representation or warranty of any hind or nature whatsoever, either express or implied, and Lender shalltake any Improvements "as -is" in their then ourrent*oondition (except as to nay 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 oanoel 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 -70- Y L R 0 leader shall be conditioned upon Lender having remedied and oared all monetary defaults hereunder and having remedied and cured or has ooNmenced and is diligently completing the oure of all non - monetary defaults of Developer susceptible to oure by any party other than by Developer. If the City receives written requests in accordance with the provisions of this Section 8.1(1.=) 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 whioh are prior in lien to the Leasehold Mortgage held by such Leasehold Mortgagee or (b) bgree 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 Mortgagee 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 Seotion. Except for any liens reinstated pursuant to this Seotion, any new lease entered into pursuant to this section shall be prior to any mortgage or other -71- x,.:�s�:�:�:.� lien, charge or encumbrance on the fee of the Leased Property or the improvements and shall have the same relative priority in time and in right as this Lease 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; (z) 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 of the City under this Lease; (zi) All rights and benefits afforded to a Leasehold Mortgagee hereunder shall also be afforded to a party providing fiaaaoing to Developer pursuant to a rinanoing Sublease. Section 6.2. No Waiver of nevelotier'a Ab7f"tiann or ClIzIn Bights. 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 oovenantm_ conditions and agreements contained herein, or from any liability -72- t r .4 for the non-observanos or non-performance thereof, or to require or provide for the enbordination to the lien of such Leasehold Mortgage of any estate. right, title or interest of the City in or to the Projeot or this Lease. ARTICLE VII 88MMI8g SeotiOu 7.1. 14e11e Of WAVI t - DeveieyBz. The following events are hereby defined as "8vents of Developer's Default`: (a) Failure - ZATAMAS et land. Failure of Developer to pay any Mental, Additional Rental or Publio Charges or any other Payments of money as herein provided or required, when due and the oontinuanoe of such failure for a period of ten (10) days after notioe thereof in writing. In the event that any payment or installment of Mental is not paid to the City on the date the same beoomes due and payable, Developer oovenants and agrees to pay to the City interest on the amount thereof from the date suoh 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, inoluding interest, -penalties and contributions, shall be treated as Additional Rent. (b) Fad 7 ure - peof Other enyemn gI Rtn _ Failure of Developer to perform any of the other oovenants, oonditions and agreements vhioh are to be performed by Developer in this -73- Lease, and the continuance of such failure for a period of sizty (80) days after notice thereof in writing frog 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), shall constitute an Event of the Developer's Default, unless such default was not caused or,.-- created by the Developer -and cannot be oared within ninety (90) _ days and the Developer within said ninety (90) day period shall have commenced and thereafter shall have continued diligently to prosecute all actions necessary to ours such default. (c) BARkm_ Eto. (i) 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, 11 U.S.C. (Sao. 10 et. seq.) or any successor thereto; provided that Developer is given ninety (90) days to disoharge an involuntary bantruptoy action and is unable to do so within the time allowed; or (ii) If Developer admits its inability in writing 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 after Developer has been given ninety (90) days to pay suoh debts; or (iii) if the leasahold interest of Developer is levied upon or attached by process of law, provided Developer has been ninety (90) days to owe such default and has failed to do so; or -74- r (iv) If Developer mates an assignment for the benefit Of Creditors or takes the benefit of any insolvency act, or if any proceedings are filed by or against Developer to declare Developer insolvent or unable to meet its debts, provided Developer has been given ninety (90) days to oure such default and has failed to do so; or (v) If a receiver or similar type of appointment or court appointee or nominee of any name or obaractor is made for Developer or its property, provided Developer has been given ninety (90) days to ours suoh default and has failed to do no; or (vi) If Developer sha11 abandon the Leased Property during the term of this Lease or any renewals or extensions thereof; or (vii) If Developer shall assign this Lease or sublet any portion of the Leased Property, except as permitted herein. Section 7.2. Renedlen far DeveleRer'a Defa.uZt. Ca) If Developer is unable to oommenoe construction of the oommeroW. struotures as the second stage of the Developer Improvements in accordance with the Development Schedule the property designated for such structures shall revert to City's possession and may be disposed of as the the City deems appropriate other than for parking purposes. (b) If after the Possession Date of the Leased Property, Developer is unable to complete the Project. Developer shall, in a000rdanoe with the Development Sohedule, prior to default, offer to sell its interest in the Project to other Developers of the SSOPN, who have begun construction on the property in their possession and are not in default. -70- f �5'L. "`Rar3''3t��+�'.:.� ' v a ='.iait'- a , ` ,T a _'.,i. r ,� .". :. • �: -c'%� a. (c) Pursuant to (b) above if the Developer is unable to sell its interest and any of the Sveats of Developer's Default shall occur, the City may, at is option, institute such proceedings as in its opinion are neoessary 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 Seotion 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. Section 7.3. Svents of Default - City. (a) Events of Default. The failure of the City to perform any of the covenants, conditions and agreements of this Lease which are to be performed by the City and the continuance of such failure for a period of ninety (90) days after notice thereof in writing from Developer to the City (which notice shall specify the respeotn.in which Developer contends that the City has failed -76- ___I� to perform any of such oovenants, oonditions ant agreements) and unless such default be one which cannot be oured within ninety (90) days and the City within such ninety (90) day period shall have commenced and thereafter shall continue diligently to prosecute all actions necessary. to oure such defaults, such failure-sb411 constitute an `Event of the City's Default`. (bf Remadiee"lor City's Default. If 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: (i) the right and option to terminate this Lease and all of its obligations hereunder by giving written notice of such election to the City whereupon this Lease shall terminate as of the date of such notice; (ii) the right to a writ of mandamus, injunction or other similar relief, available to it under Florida law against the City (including any or all of the members of its governing body, and its officers, agents or representative) provided, however, 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; (iii) the right to maintain any and all actions at law or suits in equity or -other proper proceedings to obtain damages resulting from such default. Section 7.4. Qnavoidable neiay. Notwithstanding any of the provisions of this Agreement to the contrary, neither the City (including the City Manager) nor Developer, as the case may be, -77- "? i�3 �ta�t2� f• 4�.ttilH�3i not 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 Leaned Property for development, or the beginning and completion of oonstruotion of the Developer Improvements or City improvements, or progress in respect thereto, in the event of unavoidable delay in the performance of such obligations due to strikes, lookouts, sots of God, unusual delay in obtaining or inability to obtain labor or materials due to governmental restrictions, enemy action, civil commotion, fire, sabotage, unavoidable oasualty or other similar causes beyond the reasonable control of a party (not including such party's insolvency of financial condition), inability to obtain or unusual delays in obtaining site plan approvals or other governmental approvals, or unusual delays in obtaining an executed UDAG Agreement, it being the purpose and intent of this paragraph that in the event of the occurrence of any suoh unavoidable delays the time or times for the performance of the .covenants, provisions and agreements of this Lease, inoluding but not limited to the obligations of the City and the City Manager with respect to the preparation of the Leased Property for development and completion of the City improvements or of Developer with respect to oonstruotion of Developer Improvements, shall be extended for the period of unavoidable delay; provided, 4 however, that the party seeking the benefit of the provisions of f this Section shall, within thirty (30) days after such party shall have become aware of such unavoidable delay, give notioe to the other party thereof in writing of the oause or oauses thereof -78- � �4 �t_ &, �#�:a _,... • .., ._.. -_... _-.� _.�... ,.,. 1::.. e... ...a...cnr,.. .., t.... - 1 S': - �.",r1.-J .l i' and the time delayed. The parties hereto agree if any event shown on 204bit ! shall not occur at the time required for ease 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, vhiohever is earlier. Section 7.5. Obigations. Rights and RemedieA MMUJAILM. 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 vaiver 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 ovu obligation under this Agreement shall be considered a vaiver of any rights of the party mating the vaiver with respect to the particular obligations of the other party or condition to its ovn obligation beyond those expressly vaived and to the extent thereof, or a- waiver in any respect in regard to any other rights of the party mating the vaiver or in regard to any obligation of the other party. Section 8.1. l[eo rios' Liens and Pagments of Obligations. -79- (a) Developer to nisebaree x0obanioe' Liens. Developer shall not be given possession of the Leased Property or authorised 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, Developer shall promptly take and diligently prosecute appropriate notion to have the same discharged or to contest in good faith the amount or validity thereof and if unsucoessful 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 aotion as may be reasonably necessary to proteot its interest. and Developer shall pay any amount paid by the City is connection with such aotion, and all reasonable legal and other costs and expenses inourred by the City in connection therewith (inoluding reasonable oounsel fees, court costs and other neoessary disbursements). Any such amounts paid by the City and the amount of any such expenses or oosts 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 sane, shall, together with interest thereon at the Default Rate from the date of the reosipt 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 beooming due. -80- s a 777777 �''3 s�kr�'�tr,... e.�r�2�s�.� .:'.:.... ___ ' � . c:: �.......� . . dt .e.�•.:_e�+..._. i4�`'A+k�:l+.`x+'+_3d •�..�i.Y;S�4�s•S'r�c. �,' "a'�'r��i� B- (b) paSan% of Yaterialman and Snvuliers. Developer shall mats, or cause to be made, prompt payment of all money due and legally owing to all persons doing any wort or to subcontractors in oonneotion with the development, construction, equipment, repair or reconstruction of any of the 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. Indemnity. 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 behb.lf of the City at Developer's sole cost and expense. The City shall indemnify and gave 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'g sole cost and expense. -81- a t� V, 86 k � kb _ ♦ T i��1J- • ..-i.: -i+_'Sys-3'ic�-�3R-.*�ki;_'_u�vi'i11�ab 4 �` ARTICLE I$ section 9.1. 2nanranne 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 the following insurance coverages. The insurance provisions may be subjeot to the leasehold mortgagee and possibly modified to conform with reasonable requirements of Lender, but in no event will the rights of City be diminished. (a) Provertz Insuranoe 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 oo- insurance requirement, the policy or policies shall contain as 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 "Improvements". as used in this paragraph, shall be deemed to include all personal property furnished or installed on the premises and owned by the Developer, and the insuranoe herein provided shall cover the same. -8a- • rMy J`?t r� 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 Improvements as required by this Agreement. Developer must nevertheless rebuild and restore suoh Improvements pursuant to the terms hereof and must pay the entire cost of same notwithstanding the fact that such insurance proceeds are inadequate. (b) Rental value Mwmz nee. 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 Insuranoe policy during the period required to rebuild, repair or replace the property damaged, which policy or policies of insuranoe.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 sha,li commence at such time as Rentals are due and payable to the City. 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. -83- r` 5 , X1.IT� TS T r�b _ .. .. �. _. .,..., ._ .,.,_ _._i..,,. ..-..:.ash 3✓u.."Yi.4'3'n�� — (0) a a iiabtl ty i. Automobile liability lasuranos sad equivalent policy form 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 insuranoe coverage may be reviewed periodically by the City Manager at his disoreation. Any review by the City Manager shall not constitute an approval or acceptance of the amount of insuranoe coverage. (d) Liability 2neurance_ 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 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 oocurrenoe. The adequacy of the liability insuranoe 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 mount of insurance coverage. Such liability and property damage insurance shall also be placed in effect during the period of permitted access provided in Section 3.7 herein. It is the City's intent that any liability insurance provided pursuant to this Section shall be deemed primary insuranoe coverage in the event of any loss arising from the premises and operations covered by this Agreement. -at- i u 1 O 3 } y ,! _ ' - - ,.. w� � - � r =-.s_: e4�;,,�St.�,�,�� s.st.h.'�iiej "ylE�r• t� +:� '�' r- (a) Worker's Camnenaat'on. porker's Compensation and Sitployer's Liability insurance in oomplianoe with Florida Statute 440. For work that in subcontracted, the Developer shall require the subcontractor to provide Worker's Compensation insurance for all of the subcontractor's employees. (f ) CASLaa. Developer shall furnish Certificates of Insurance with the City named as additional insured for the coverages specified hereunder which shall clearly indicate that Developer has obtained insurance in the type, amount and classification's 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 rep.aoing any policies expiring during the term of this Lease shall be delivered to City Manager at least ten (10) 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. $88roneible COm];a fee - Blanket Insuranae Permitted. All insuranoe 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 rated at least 'A' as to management, and at least "C1a88 X" as to financial strength in the latest edition of Best's Insurance Guide, published by Alfred M. Best Co., Inc., 78 Fulton Street, New York, NY. The insuranoe required by this Article may be part of another policy or policies of the Developer in which other -85- properties and locations are also covered so long as the amount of insurance available to pay losses at this location is at least the minimL required by this Section, and it cannot be reduced in any manner by losses occurring at other properties or locations. Section 9.3. Ramed =neur e - Natioe to City of r QLUCALj&U=. 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, it 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 (3o) days after receipt of written notice thereof has been received by the City. Developer shall use due diligence tb insure that each policy contains an endorsement to the effect that no act or omission of the Developer shall affect the obligation of the insurer to pay the full amount of any loss sustained. Section 9.4. s to no se. in the event Developer at any time refuses, neglects st: or fails to secure and maintain in full force .nd of foot any or r all of the insurance required pursuant to this Agreement, the -88- 4 ^w" tl•e � d-�..,x ;ail e� City, at its option, say procure or renew suoh insuranoe, and all amounts of Money paid therefor by the City shall be treated as Additional Rental payable by Developer to the City together with interest therbon 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 suoh notification. Section 9.5. Insurance Dees Not wive Develerer'a a. No aooeptanoe or approval of any insuranoe 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 9.6. Loan er Damage Not Te TerLtMte Rental er Thin Any loss or damage by fire or other oasualty 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 performance and fulfillment of any of Developers obligations pursuant to this Agreement. 8e0tion 9.7. Preei At Lose. Whenever any Improvements. or any part thereof, constructed on the Leased Property (including -87- w any personal property furnished or installed in the premises) shall have bees 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,Dev9loper shall promptly give City written notice of such damage or destruction. Section 9.8. ftaparly Insurance Proceeds. (a) Authort2 Pant. xxoept as otherwise provided in subsection (o) of this Section 9.8. all sums payable for loss and damage arising out of the casualties covered by the property insurance policies shall be payable: (i) Directly to Developer, if the total recovery is equal to or less than the then fair market value of Developer's property interest, exoept 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 Curing 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 W above to be held by such Insurance Trustee pending establishment of reconstruction, repair or replacement costs and shall be disbursed to Developer pursuant to the provisions of subparagraph (b) of this Section 9.8. If. at the time such proceeds become payable, there is a Leasehold Mortgage on the Leased Property. the Leasehold -88- xq##. �•tt 2�_ Mortgagee shall serve as the Insurance Trustee, but if there's no Leasehold Mortgage at that time, or it the Leasehold Mortgagee refuses to serve as Insuranoe Trustee, the Insurance Trustee shall be suoh oommercial bank or trust oompany as shall be designated by Developer and approved by the City Manager, which approval shall not be unreasonably withheld or delayed. (b) Dsn oelt+en of 2neuranoe Preeeed8 for Reoonstruation. All amounts reoeived upon such polioies shall be used, to the estent required for the reoonstruotion, repair or replaoement of the Improvements and the personal property of Developer oontained therein, so that the Improvements or suoh personal property shall be restored to a oondition oomparable to the oondition prior to the loss or damage (hereinafter referred to as "Reoonstruotion Work"). From the insuranoe prooeeds received by the Insurance Trustee, there shall be disbursed to Developer such amounts as are required for the Reoonstruotion Work. Developer shall submit invoioes or proof of payment to the Trustee for payment or reimbursement in aocordanoe with an agreed sohedule of values approved in advanoe by the City Manager. Any amount remaining in the hands of the Insurance Trustee after the oompletion of the Reoonstruotion Work shall be paid to Developer. (0) Lenders arm Lender/Landlords Hay Have Benefit of jnmur�anee, Pund for Reconstruction. In the event Developer, pursuant to any Leasehold Mortgage or Finanoing 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 -89- t } rty * _ S �� .. k Y4 ' _ i � � .cam _sSCr,�w�•�t5>�.�1�_ _ '3� �`�i- �4+ _ PS.t>�iN�•�� aa2 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 insuranoe proceeds, then in that case said insurance proceeds shall be equally available to , "qh Leasehold Mortgagee as to Developer as provided in subseo£ion-(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. ftvanant for Commenoement and Completion of Reoonstruotion. Subject to the provisions of Section 9.1(b) and Section 9.10, Developer oovenants and agrees to commence the Reconstruction Work as soon as practicable but in any event within six (6) months after the insurance proceeds in respect of the destroyed or damaged improvements or personalty have been received, and to fully complete such Reconstruction Work as expeditiously 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 oommenos such Reconstruction Work within such six (6) month period, or to complete such Reconstruction Work within such twenty-four (24) month period, then such Reconstruction Work may 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 insuranoe proceeds" means the am actually paid by the insurer or insurers in respect of the claim in question, lose 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. ney_elofler�, 's Rights In the Brent of QninRurw_d IAinr. 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, or the required coverage is not enough to restore the Developer Improvements, then at Developers option, in lieu of rebuilding, replacing or repairing the portion of the Improvements or the Leased Property so damaged or destroyed, Developer may give notice to the City, within sixty (60) days after the occurrence of such damage or destruction, of Developers 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, exoept 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 Lease shall have been terminated and shall oleai and grade such portion of the Leased Property. The City and Developer shall, at the request of either. execute -91- such instruments or documents as may be reasonably neoessary or desirable in order to &mend this Lease to delete suoh portion of the Leased.Property from the desoription of the property demised hereby. If the improvements or the Leased Property whioh were uninsured or for whioh there were no insuranoe prooeeds shall be substantially-damegge.d or destroyed on any single oasualty so that the Improvements -or 7 the Leased Property shall be unsuitable for restoration for Developer's oontinued use and 000upanoy in Developer's business, then at Developer's option, in lieu of rebuilding, replacing or repairing the Improvements or the Leased Property as provided in this Lease, Developer may give notioe to the City, within thirty (30) days after the 000urrence of suoh damage or destruotion, of Developer's intention to terminate this Lease on any business day speoified in suoh notioe whioh odours not less than forty-five (45) nor more than sixty (60) days after the date of suoh damage or destruotion, provided that suoh notioe shall be a000mpanied by a oertifioate of the Developer, signed by the appropriate offioer or general partner, stating that in the reasonable judgment of Developer, the Improvements and the Leased Property are eoonomioally unsuitable for Developer's oontinued use and 000upanoy by reason of suoh damage or destruotion. This Lease shall thereupon terminate on suoh termination date, except with respeot to obligations- and liabilities of Developer under this Lease, aotual or oontingent, whioh have arisen on or prior to suoh date. Upon giving any suoh notioe of termination of this Lease Developer shall, upon the City's request at Developer's expense promptly demolish any building or other remaining improvement and shall olear and grade the Leased Property. -92- Section 10.1. Entire Leaeed.PropArtZ Taken bow Condemnation. In the event that the whole of the Leased Property and Improvements (or such portion thereof as shall, in the good faith opinion of Developer, render it economically unfeasible to effect restoration thereof) in view of its intended use shall be taken for any public use or purpose by the exeroise of the power of eminent domain. or shall be conveyed by the City and Developer acting jointly to avoid proceedings of such taking, the Mental 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 inoluding reasonable attorneys' fees incurred by the City and Developer in such condemnation 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); 8sod: City and Developer shall be paid portions of the balance of said award or awards which are allooable to and represented by the value of their respective -93- ,Y 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 eaoh party's respective interest or estate in the Leased Property -And the Improvements bears to the total Fair Market Value of the interests and estates of both parties in the Leased Property and Improvements within thirty (30) days of the time of the taking. Section 10.2. Partial Tang ' of Leased Propgrtj by �Ond0IDa8Si.1CII (a) In the event that less than all of the Leased Property or Developer Improvements shall be taken for any publi0 use or purpose by the exercise of the power of eminent domain, or shall be conveyed by the City and Developer acting jointly to avoid proceedings of such taking, 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 force and effect as to all of the Leased Property not so taken or conveyed (esoept as provided in subsection (o) 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 oondemnation taking into consideration -94- the fact of the oondemnation; provided however that in so doing Developer shall not be required to ezpend 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 shall be paid to and received by the parties as follows: gL=: There shall be paid all expenses, if any. including any reasonable attorneys fees incurred by City and Developer in such condemnation suit or conveyance; BaaCnd: There shall be paid to the Developer the amount required to complete the remodeling and repairs to the improvements pursuant to (a) above; XLUA: 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; Z ux1h: City and Developer shall•be paid portions of the balance of said award or awards if any which are ailooable to and represented by the value of their respective interests in the Leased Property as found by the court or jury in its'oondemnation 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 -9s- Property and the Improvements bears to the total Fair Wket Value of the interests and estates of both parties in the Leased Property and Improvements. 800tion 10.3. Aid 1Ugtzant of Rant Uj en Partial Taking. In the event a part of the Leased Property and the Improvements thereon if any, shall be taken for any public use or purpose by the ezeroise 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 Tempo! rary Una or of Leasehold Sit&n• 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 Improvements shall be taken for temporary use or the wb-ole or any part of the leasehold estate created by this Lease shall be taken. all awards or other payments shall be paid to Developer alone except that: W 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 Improvements. such portion shall be applied to pay the cost of restoration; and ff-�;L • a (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, payment, or date of payment 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 Hasid Rentals payable in the immediate 3 year period prior to the notice of taking by condemnation or the period of time since the Opening 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 Consumer Price index•, for, if not available, such equivalent index. ;y :1, ; • ;l;la; • • � ANY Section 11.1. Quiet Sniozzant. 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. -97- t h'1t4yy�.� Section 11.1. ImM. Developer shall not permit, commit or suffer vast* or impairment of the Leased Property or the Developer Improvements thereon, or any part thereof. Section 11.3. ntenanoe and Aneratinn of imtirnyonants. Developer shall at all times keep the Developer Improvements constructed on the Leased Property and all furnishings located therein in good and safe condition and.repair as other comparable projects in similar usage are kept (reasonable wear and tear expected), and in the occupancy, maintenance and operation of such Improvements, and of the Leased Property, shall comply with all laws, ordinances, codes and regulations applicable thereto. Section 11.4. Ownernhiin of imvrovements during Lease. Prior to the expiration or termination of this Lease, title to the Improvements shall not vest in the City by rebson of its ownership of fee simple title to the Leased Property but title to such Improvements shall remain in Developer. 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 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 -98- required by the other for that purpose. During the term of this Lease, Developer sha11 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 Leaned Proparty. 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 Improvements shall vest in the City and it shall be lawful for the City to re-enter and repossess the Leased Property and the Improvements thereon without process of law and Developer in such 'event does hereby waive any demand for possession thereof and agrees to surrender and deliver the Leased Property and the Improvements thereon without process of law peaceably to the City immediately upon suoh expiration or termination. Section 11.S. City And Developer to Jein in Certain A011QnB. 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, lioenses or other authorizations required by any governmental or public authority which has Jurisdiction in connection with any worm as may be reasonably necessary or appropriate for the construction of the Improvements to be oonstruoted 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 JSP. f } 1 Y xi utilities- and facilities as may be reasonably necessary or appropriate for the construction, operation or use of the Leased Property or any improvements to be erected by Developer thereon. Developer shall pay all fees and charges for all such applications and grants. ARTICLE XII NISCALLANEOQS PROVISIONS Section 12.1. No Ptrtneratig or Joint Ventura. 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 oo-partners, or creating or establishing the relationshipof 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. eoordind . Do MAnth= GUM. This Agree - sent, or a memorandum hereof in form mutually satisfactory to the i 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 taz shall be paid in full by Developer. -100- Section 12.3. Fio*ids and_ Zonal. Laws prava3l. This Agreement shall be governed by the laws of the State of Florida. This Agreesent 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, oovenant, 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 unenforoeable because of judicial construction, the remaining terms, oovenante and conditions of this Lease, or application of such term, ooveaant 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, oovenant, or condition of this Lease shall be valid and be enforced to the fullest extent permitted by law. Contemporaneously with the execution of the 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. c!onf?iota of interest. City RepresentAt♦v.a Not indiviAuAlly 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 -101- =r �4.' v .. - - .. • -'.' •. � ty.. .ix`�weL��L;tl9iA"x.'� `�,Y_t 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 in, 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 12.5. IDILan. 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) nevela = . In the case of a notioe or communication to Developer, if addressed as follows: f Richard S. Rahn, President North Port Development Corporation Forshay Tower 821 Marquette Avenue Suite 1600 Minneapolis. Minnesota 55402 oo: Stuart Hoffman Fine. Jacobson. at al. 777 8riokell Avenue Suite 700 Miami, Florida 33131 (b) Developer's Reenrds. Developer's original duplicate books and records in auditable form as required in Section 2.8(d) -102- t shall be Kept and be available to the City during normal business hours at its principal place of business in the City of Miami. (a) City Manager. 2n the case of a notice or oommunioation 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 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 12.3. Section 12.6. MBtcvuel Certin &tea. The City and Developer shall at any time and from time to time, within thirty (30) days after written request by the other, e=ecute, 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, -103- 4t' 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 estoppel 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 behalf by the City )manager. Section 12.7. Provision Not Merged with Deed. 'None of the provisions of this Agreement are intended to or shall be merged by reason of any deed (i) transferring Developer's leasehold estate in the Leased Property and Improvements or any part thereof from the Developer (or its suooessors.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. TItIon of Articles and SAotiona. 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. -104- r:k>:�'4.,� _ .., ... .; �,. ..� .: � .... ..._. '�.-c �r _�.:. '.�i+�__ =_��ss6_rs..n.��S�3: :�sli_.�. s. �•�_ — --- �1 8eotion 12.9. Gmurmt•A• This Agreement is ezeouted in six (d) oounterparts, each of which shall be deemed an original, and such oounterparts 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 Sthibits referred to in Section 1.1. Section 18.10. Mon-DistLrIMnst and Attornment. The City covenants and agrees with Developer for the benefit of any and all Subtenants occupying any part of the Leased Property or the Improvements from time to time, that in the event of a termination of this Lease. the possession of each such Subtenant shall not be disturbed so long as such Subtenant shall not be in default under its Sublease, provided such Subtenant shall attorn to the City. This nondisturbanoe agreement shall be self - operative and no further agreement between the City and any such Subtenant shall be necessary to effect the same, however. the City agrees from time to time, promptly upon request of Developer or any Subtenant, it will enter into agreements with the Developer and any such Subtenant 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 shall attorn to the City. Developer covenants that each Sublease to which it shall be a party shall contain a clause ezpressly providing that the Subtenant thereunder shall attorn to the City in the event of a termination of this Lease. but the absence of such a clause from -105- �zr I any sublease shall not relieve the Subtenant from the provisions Of this Section 12.10. Section 12.11. -111 Dnuo� rtu�ty. Developer will use affirmative efforts to seep and offer to ainority-oontrolled businesses the opportunity to lease suoh portions of the Leased Property as may from time to time beoome available in accordance with the Kinority Participation Program attached hereto as Ezhibit P. . Section 12.12. Sueoeesora end Aeaigag. 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. Rvaill,];atinn. Notwithstanding any "provision oontained in this Lease to the contrary, it is speoifioally 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 olk any assignee or sucoessor-iu- interest of Developer with respect to any of the obligations, terms oovenants and conditions of this Lease, such exculpation of personal liability to be absolute and without any exoeption whatsoever. Section 12.14. Entire Agreement. This instrument and its attachments constitute the sole and only agreement of the parties hereto and correctly set forth the rights, duties, and obligations of each to the other as of its date. Any prior -206- agreements, promises, negotiations, or representations not szpressly set forth in this Lease are of no force or effect. section 12.18. amendmoatB. No amendments to this Lease shall be binding on either party unless in writing and signed by both parties. ARTICLE XIII ARBITRATION Section 13.1. panel. A panel of arbitrators ("Arbitration Panel") shall be established when required by this Lease. (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 (o) The aforesaid members shall promptly name a third member. (ii) 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 -107- Arbitration Association, upon the request of either of the two members. Section 13.2. An l onn 8gUtngs andfleoi alone . All actions, hearings and decisions of the Arbitration Panel shall be conducted, based upon and in accordance with the Commercial 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 Lease, 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 Lease, and shall not have the power to vary, modify or reform any terms or provisions of the Lease 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-ezamination 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 (10) 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 -108- s4- call witnesses. The Arbitration Panel may grant oontinuanoes for good cause or with the agreement of both parties. The Arbitration Panel may render a deoision at the close of the hearing, or may request briefs on any or all issues. Any and all suoh briefs, inoluding reply briefs, shall be filed with the terns and on the sohedule set by the Arbitration Panel, but in any event no later than forty-five (45) days following the oommenoement of the hearing. The Arbitration Panel shall render a determination within sixty (60) days from the oonolusion of the hearing. If no determination is rendered within suoh time, unless the parties agree otherwise, a new Arbitration Panel shall be seleoted as desoribed above, but the new Arbitration Panel shall render a determination solely upon review of the reoord of the hearing without a further hearing. ! The Arbitration Panel seleoted hereunder shall agree to observe the Code of 8thios for Arbitrators in Commeroial Disputes promulgated by the Amerioan Arbitration Assooiation and the Amerioan Bar Assooiation, or any suooessor oode. The deoision of a majority with respeot to any matter referred to it under this Lease shall be final, binding and oonolusive on the City and Developer and enforoeable in any oourt of competent jurisdiotion. Together with the determination, the Arbitration Panel shall provide a written explanation of the basis for the determination. Baoh party shall pay the fees and expenses of the member of the Arbitration Panel designated by suoh party, such party's oounsel and witness fees, and one-half (1/2) of all expenses of the third member of the Arbitration Panel. -109- ..— .- - .:. .. z .e_i 4 ,, z,+.:'-H.b- F '�:�.'.�.;.EbM — �=•c�� 1'.y'u7/YiTlltl'f 1� y�t IN WITH 88 TEMU Y, Parr West, Ltd. Developer, has caused this Lease Agreement to be signed in its name by its President and its corporate seal to be hereunto affixed and duly attested by its Corporate Secretary, and the City Commission of Miami, has caused this Lease Agreement to be signed 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. PARE NEST, LTD., a Florida ATTEST: Limited Partnership Corporate Secretary ATTEST: NATTY HIRAI City Clerk APPROVED AS TO IMSORMCE REQUIRBMENTS: DIVISION OF RISE MANAGNENT By (Title) (Seal) CITY OF MIAMI, a munidipal corporation of the State of Florida By APPROVED AS TO FORM AND CORRECT21 SS: LUCIA A. DOIIG88RTY City Attorney LGE/wpo/pb/Mo19 11/17/86 18:00 p.m. -110- CESAR H. ODIO City Manager x ' • ' j. -:3 N,OTE'S f IWA,r XURreY itAWr vot/a WMIet',r lr0.60Mr .Wer',yer_��r�. SfAc os• .vAoLrO.Oec E SURvt'"A<'. . • EL'dY.4r/oA,.r .1'AIOAw vewedV f A99 e/rfgJ*W LOCArrAfte AS &V„APDW Ai eAVON rVMe rAkeW f'R.'.W C/TY a4A* M/AM/ 4!YG/TM Aweive4x ANO sY//�i�'1�'M�wTL+�d dYF/t:� • .Hfn+'�.i�EAI�.Yl. . f iE ovow..4^oAe Ar A.t: A/A/G i / wawiipw ATf.ACeDA' xeie y.4,dA- werr l' floe AVyz%cw ,r Ar me /stet eAewe Ale NOOM AI/AM/ AYe t' IVW 74. ,V ' iGEY. rj �� 'CriYOF AEI/AM/ D. m,".. nvir dseflt�.tr /.r .nuw&vrr r» e4+.tL'Mrl•M/7', .*l�^.vr.!••e�• w.ey, qN0 IT.Vlt M.rrrrvr wrVic.V,N/roIr tie "Arecreo do.- Of ileAM •'IV dots'rirze Rs PW.f JZOk& 'rc • ,VA /f2�' IiltRiBY CERT/FY • rwtr rw Amormeo '.qve ry oe Svvwr' ow?We* swaswrAry Oe .:,r-*e er ACk^AN I, rma ammo cop*wr Fu rAw AGsrawaw t K#w#v"4 dw AAv &fticrAs /Ovoemnv J&,* SYSD AV* AWWWO &AOeR Wig VIAMr/ON AAO Afore" Me owlwlmI/M rZ=vv/,COL ?Ty1Na"" As sor Ab'1PrN Or nve iim.,DA STAre aa".o vie G.4ND sURv6YnRs .OliooSC/.wl YO CA"Orew ♦Y, AIM•d . M OYP/QA ApMlnlSr.*ArvPW CAM. sc�wC,e�r� SIVISNIN f .4SAOC., INC. ~*.• 1'R v" Maw srA L � At IDA Y 7 t,:. ::, Exhibit A2 k Site Plan :: ,;:r A. k�FUTURE COMMERCIA1.PEDESTRIAN P i WAV •', • NW EIGHTH STREET SPORTS ARENA SITE I I I I SITE PLAN Wo L.60 7001 _:A W W r.� (Notes A ■ore precise site plan will be provided prior to the November 25th Commission meeting by the Developer.) b �1a appt y, F 4 al y i F (Note: A more precise site plan will be provided prior to the November 25th th Commission meeting by Developer.) Exhibit B Legal Description Miami. A. L.c-Rnft- on a Subd. (B-4) : Block 37N; Lots 1-24 . r= �t :A 6ti shy Y - '. -.�''+ 4 7 R. :S. a'm�s.1 •�v- a•.�u�:la Y4.✓;r�•�+;rs5�_-4_�.'2 �' 'T - X '.� PAU SOM RSIVJM MFORMMCI BOND "MMA Mod a" &=Am MOW "M w monamm rx. mor) 0 swom 0 meamew 0 Vne 0 awcuim SOMI w vcowa1M few am 0 am na �RtNvow A jr "q Cwptd a" bowel% we Andy based ft dw ty Ofr am ereis de ebwe p" nw (a dw pe, et wbkIl we naM t Y%Ilw is d M" 6WNI"% Ow hdjm, Ouadw% a&Mjmb"ww% ma I I I I I I I el kbft jed wvgnln A psM lrMt. fibre dw %MF'wwwwMwq Ww W saw"fives In eveb mom -)deft a" "Vmllz: as ay tse eat s6evoleg * join salm or acdow qWsw my, w sU at in. @14 for 60 s 4n3y edw Sub Sufter big& JAWy ead w"m* vlA dw hbdp@L he d. - - - of aseb too Daly w is to do mime of so& SwW. but if w Mok of UsbMy Is WkwC W 14�et Ilabdity sb&U be dw Ima "Emes"idEw plaw NO& THE CONOMON-07 THIS OUIGAIMON 95 SUCK dw wbmw do Pdodpd easwed imes the ceeven idestiged it do Immew A.M Pmdww md AdW A do I " Il sssiitiw. MA at "M comma Affidso do OrWed Game at uM e+twtwa eud wW ameekiless dw 'Aft.wer be -gamed bylft City v" w id" i Id A , @Ww in dw SvmWQ=). md dwilag the we of JW abe pwfons md 'hM an 1, 1 . N .. .10 GrossmaND swoul atzew an -&-if MAW - wai6ft of ssW Comma do mij bwnhw be me" i Sww(Z" ) beleg bweby wdwW- IN wrMM WUMMIP, dw ftlecipel md Semy(in) lieve dds r•etwwe.ce bead ead to" Azed dw:t $wds a& dw 4M an hab sawfe. vpdMM e. L (Sod) Is d/ I Galata S"I MMM& L (SWOrsdi RAW) L COMPOM um MOP= Cooperate I speow" 2 I lwar _j "mom & I 1 & NNMMMM�_ _ Exhibit D List of Approved Concept Plans THE PROrTECT s NarIL- • I%..lace West, to be developed by Can -American Realty Corporatibn, will be located on Block 37 of the Southeast Overtown/Park West Redevelopment Project Area. Block 37 is bounded by Northwest Ninth Street, North Miami Avenue, Northwest Eight Street and Northwest First Avenue. It is situated immediately north of Miami's new sports arena. As envisioned Park Place West will include two residential towers. The towers, one 16 stories and the other 21 stories, will accommodate 350 rental apartment units. Specifically, Park Place West will contain 105 one -bedroom and 245 two-bedroom/two bath units. The two -bedroom units are designed to encourage shared occupancy by roommates through dual master suites. Park Place West's amenities will include two swimming pools, tennis courts, a well equipped exercise room and 24-hour security. Fifty percent of the units will have balconies affording one bayside and downtown Miami views. The towers will be surrounded by a stucco -covered wall with arches complementing the buildings' facade. The complex will also include 30,000 square feet of commercial �.��-- --A ew.. Inc ft%%4- .Mr►S%i 1 as _ Day Number: 1 135 150 165 345 715 895 1215 1245 1425 1790 f Exhibit E DEVELOPMENT SCHEDULE Action to be Completed: -Execution of UDAG Contract by City and HUD -Execution of UDAG Loan Agree- ment by City and Developer -Submission of Scope Plans for Stage I -Possession Date -Construction commencement date of Stage I -Submission of Construction PLans for Stage I -Commencement of Project leasing activities -Completion Date of Stage I -Submission of Scope Plans for Stage II -Construction commencement date of Stage II -Completion of Construction Plans'for Stage II -Completion Date of Stage iI V•��y l . a .�3.,�,x��''�•+�''�_t�t7'te� "•.k �a•t,�'f,,,y� GYr_ i. �y �;a Y� .' e4 � :X MINORITY PARTICIPATION AGREEMLNT 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 Park West, Ltd., a Florida Limited Partnership. RECITAL WHEREAS, by authority of the City of Miami Charter, the City on July 31, 1984 - author i zed 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 "Park West Place" (the "Project") on the land owned in fee simple by the City located between North Miami Avenue, Northwest 1st Avenue. Northwest Sth Street, and Northwest 9th Street, in the City of Miami, County of Dade, State of Florida, which is collectively referred to herein as Block 37; 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 37 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 r 'c1 t� `,�� t �k • _ r,. 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: "this Agreement" means this minority Partic pat on Agreementj, as the same may be modified or amended from time to time provided that any such modification 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 Citx Manager* has the weaning ascribed t it in the opening paragraph of this Agreement. "Construction Contracts" means those certain agreements beEween t e Developer and its general contractor for construction of the Developer Improvements, and includes subcontracts with respect to such work between the general contractor and subcontractor. "Department" means the City's Department of Deve opment or departmental staff. "Developer" has the meaning ascribed to it in tree opening paragraph of this Agreement. "Develo er Improvements* has the meaning ascribed to it in the Statement of Background and Purpose in the Development Agreement between the City and the Developer. "Minority" means the following persons as de —fined. in the following definitions as -2- -'.'.-fit,' ti s a approved by U.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). "Minorit.x Business Enterprise* means a corporation, partnership, in visual, 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 jobdevelopment program or program staff. *Project" has the meaning ascribed to it in t e ec tal. "Section", "subsection", " ara ra h", WsuMpara ra h" , "clause;; or su c ause" fo2lowed by a nu m eer or letter means t o 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 CONSTRUCTION CONTRACTS Section 2.1. Ceneral Contractor. Developer shall notify City of its selection of its General Contractor upon consummating an agreement with the same. -3- *�Ys�G�i�%%*s`��^.�*ri'ti.;h'dsi.vit,...?yti-,.�u.rr--�:-•�, Section 2.2. Goals. Developer agrees to exert diligent, good faith efforts to award fifty percent (50%) 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 (2S%) to Hispanic contractors. Section 2.3. Developer's Obligation. The Developer's diligent, good faith efforts shall include, but not be limited to the following: 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 Enterprise is not the lowest bid in order to meet the goal established in Section 2.2. c. To the extent feasible, providing for small subcontracting 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 construction 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, -4- or in Developer's judgment, 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. k. Encouraging general contractor to award subcontracts to local Minority Business Enterprises. Developer agrees that the City shall be notified of the scheduled dates for opening all bids. 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 to Developer until Developer has clearly demonstrated that diligent, good faith efforts were put forth to meet the goals established for participation in the Project. -5- ±:1 fS. s+.r :='"W Y�.iX.z`c�-': t�L_ _. �-tri,'` '•� .t_ _ -�_ .i %':..'-'- i_ .'- _ minority contractors' ARTICLE III CONSTRUCTION HIRING Section 3.1. Goal. Twenty five percent (250) 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 3.2. Developer's Obligation. The Developer's diligent, good faith efforts shall include, but not be limited to the followings 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. The OJP shall coordinate its efforts with the local trade unions in the event the Project is union oriented. 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 bonstant throughout the construction -of the Project. c. To the extent feasible, assisting laborers in upgrading their skills. -6- �Y� 1 � S y g`. ARTICLE IV PROFESSIONAL SERVICE CONTRACTS g Section 4.1. 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. Kimberley Parker, Esq., has been retained as legal representative for the project as well as urban development consultant. b. B.R.V., Inc. a 100% Hispanic owned Architectural firm has been engaged to provide design and supervising services. Section 4.2. Developer's Obligation. In pursuit of the goal set forth in Section 4.1 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 V MANAGEMQNT AND MAINTENANCE OPERATIONS Section 5.1. Goal. Developer shall make diligent, good faith efforts to hire a SO% 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 Miami's Black community. -7- . sf x !' Section 5.2. 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. ARTICGR VI MONITORING Section 6.1. 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 subcontractors on the Project. Attached hereto as Attachment D is the form to be used during the monitoring visit. Section 6.2. 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 access to all employment records relative to the laborers on the Project. Attached hereto as Attachment E is the form to 6e used during the monitoring visit. Section 6.3. Doper 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 participation 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. -8- ��xS74a��Si+µ 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 VII MINORITY COMMITTEE On or before 1-20 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 concernving opportunities for Minority participation in the construction 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 minutes of the Committee's meetings to be available for inspection by the members of the Committee upon reasonable notice. -9- `� Yst�.�"�'*e��`::a�'>�r.:Y�S i+�_{_. st•`•.: ''-. , f. .., :....,. ._;:. , :.: ':, r...; ,. _.; ... '_:.y .., s- ,.6• s,..x w r ARTICLE VIII MISCELLANEOUS PROVISIONS Section 8.1. Florida and Local Laws Prevail. This Agreement shall be governed by the laws of the State of Florida. Section S.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 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 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 8.3. 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 mail, 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: -10- fl:'e^�I_.._c_'... W Richard S. Rahn, President Northport Development Corporation Poshay Tower 821 Marquette Avenue, Suite 1600 Minneapolis, Minnesota 55402 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 Miami, 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 8.3. Section 8.4. 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 8.5. Successors and Assigns. Except to the extent limited elsewhere in this Leape, 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 S.G. 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 8.7. 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 -11- 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 states (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 veracity 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 S.S. 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. -12- see Section 8.9. Amendments. No amendments to this Agreement shall be binding on either party unless in writing and signed by both parties. ARTICLE IX DEFAULT Section 9.1. 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 9.2. Remedies for Developer's Default. If a default should occur Developer shall be fined five hundred dollars ($900 ) 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 X DIS_PU_TES 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 -13- ;.F accordance with the Commercial Arbitration Rules of the American Arbitration Association. if the Arbitrator shall determine that Developer has failed to make 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 9.2 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 herein 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. IN WITNESS WHEREOF, Park West Ltd. has caused this Minority Participation Agreement to be signed in its name by a General Partner 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 Matty Hirai, the City Clerk, on the day and year first hereinabove written. -14- WITNESS ATTEST: PARK WEST, Ltd. a Florida Limited Partnership BY : I HARD S. K HN, Partner THE CITY OF MIAMI, A MUNICIPAL CORPORATION OF THE STATE OF FLORIDA By: MATTY HIRAI CESAR H. ODIO, City Manager City Clerk APPROVED AS TO FORM AND CORRECTNESS: LU IA A. DOUGHER City Attorney LGK/tb/M042 11/17/86 3:40 PM 0 an of Bidder ATTACHMENT A SMONMACTOR CERTIFICATION POW Principal Address City_ State Zip License # - Telephone ( ) Corporation ( ) Partnership ( ) Indivisual (') Joint Venture List of Corporate Officers, Title Race, and % of Ownership NAM TITLE RACE B Ownership Type of Business Years 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 Volume business in 198S 2984 Jobs Completed in Past 12 months: P"Ject ROM Architect Uneral Contractor 2. 3. 4. Have you ever been certified by Dade County,DOT, or any other agency as a XSE ? If yes what agency. when Rey personnel on the job site: w ��'rfslllsSt�;`,u;�.a:cC.'..l�. �r t.,ty,... ... ..c .__.. .,_ ...s •.�.. .. ...,- ,._s, a:..r's c. s.....*i._....__.._.'!�_Gd..�...:_e'atc".�"•.=�:��i.li'�s`iYa'L�.tillaL�Mili� y�r ATTACHMENT A Page (2) of FORM A _ 13. is a valid Florida Drivers' License required? Yes No 14. Are your employees in this position expected to provide any necessary tools involved in the fob (0? Yes No If yes, please attach an ite—mizid list of tools required or eac position. is. Could a person with limited English speaking skills perform this job? Yes No 16. Is public transportation easily accessible? Yes flo 17. Does the job require shift work or other than traditional hours? Yes No (If yes* please clarify) NOW ATTACHMENT B VERIFICATION FORM DRAMkP The following information is" required from each sub -contractor on project. 1. name of Company 2. Company address 3. Telephone number 4. Owners Name 5. Current number of employees 6.- IRS Employers' ID Number 7. Nature of Business (example plumbing, electrical, etc.) 8.. Type of license License Number 9. blame in which license was obtained. 10. Legal Structure ( Proprietorship ( ) Partnership ( )Others ( ) Corporation ( ) Limited Partnership 11. dames 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. 15. Copy of Articles of Corporation and By Laws. 16. Notarized statement of ownership 17. Copy of Dade County Certification, if applicable. IS. Amount of this contract. .4 • " t �A��&3�i,Li!'iF.��i:� ��.}-?.tt .j+'s.:�f..aY .hltt�r:'_•a�+F✓ ».:.:.: ,.�:A.,a�� .J...:r�7��Y�3.?�zhk'. inr.`.,-::`was,t��aw�S.�'�is•.�zit^ryt'�'f��®� I.y ATTACHMENT C CITY OF Mimi OYERTOMN JOBS PROGRAM JOB ORDER FORK 1. Developer 2. Phone 3. Date 4. Project Title S. Project location G. Sub Contractor/Project Supervisor 7. Position Title S. Nmber of Openings 9. Beginning Date 109 Ending Date 11. Mork Days 12. Hours 13. Wi11 union membership be required? Yes No If yes, which union and local / 14. If this job involves on-the-job training to be subsidized by the City. how long 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 necessarvl r l F:. For the Month of: MONTHLY HIRING StMMARY General Contractor: Sub Contractor: Developer: List all the construction personnel in the firm of that are covered under the !firing Agreement with the City. Please provide the names and ethnicity of all company personnel and the proposed number of new hires for each position. Return this form to the Overtown Jobs Program within ten (10) days. COMPANY EMPLOYEES ETHNICITY POSITION TITLE * (B/L/F/0) TOTAL NEW HIRES • B - Black, L - Latin. F - Female, 0 - Others. Please return this form to Overtown Jobs Program 1600 N.M. 3rd Avenue Miami, FL 33136 FORM 1 Authorized Signature Date • ATTACM4ENT D 4:k MINORITY SUS -CONTRACTOR MONITORING FORK Name of General Contractors Name of Projects Address or Block Number of Projects Name of Sub Contractors Address: Phone Numbers On Site Contact Persons Owners Name(Sub-Contractor) Verified as Minority Company _yes No i Ethnicity of Company Olack Hispanic Female Date Job Begins Estimated Completion Date Contractor Speciality$ Number Of Jobs Created: Date of Site Visit I I I I I I I I I I! I I I I I I 7-3 of work completed Miscellaneous Notes AUTHORIZED SIGNATURE Signature of Developer 19m MONTHLY MIRING StUMARY Developer: List all the construction personnel in the firm of that are covered under the Miring Agreement with the City. Please prov e IN namel aRrethnicity of all company personnel and ethnicity of all new hires. COMPANY EMPLOYEES ETHNICITY TOTAL ETHNICITY POSITION TITLE * (8/L/F/0) NFU HTRFS * 8 L F 0 * B - Black«,L - Latin$ F - Ferrate, 0 - Others. Please return this form to: Overtown Jobs Program 1600 N.W. 3rd Avenue Miami, FL 33136 FORM 2 Authorized Signature y. Title Date J< i Exhibit 0 Maintenance Responsibility Site Plan I= IlLands within this boundary to be maintained by developer. The public rights -of -way will be maintained by the City. NW 9TH STF4MT PEMTFM MALL ILM I PM qrs 17M 0 M I M a' T 8 AM:— To -r 71ff t. 13 3 ftf V U*r 'f I NMI �� All] [Ifib-% F1 scaft I save WkswiWicyArditects.Irr. us* "A sang i I PAM OURi .,� UM PLAN 10"ok toft%KM lkwon of 00 UWAF18" M AN 'a M ra 39 $me