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Home My WebLink AboutR-86-0110:i-86-156 RESOLUTION NO. 8 6- 1 1 0 A RESOLUTION AUTHORIZING AND DIRECTING THE CITY MANAGER TO EXECUTE A DEVELOPMENT AGREEMENT WITH INDIAN RIVER INVESTMENTS OF MIAMI, INC., IN SUBSTANTIALLY THE FORM ATTACHED, FOR THE DEVELOPMENT OF PARCEL 46 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 I 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 Indian River Investments of Miami, Inc. as the development entity to develop Parcel No. 46 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 UEETIN C", OF FED 188 IM TIOU No 96-11 -1- I i 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 b WHEREAS, the City Commission has been presented the aforementioned negotiated land disposition contract and finds the terms acceptable; and i j WHEREAS, the City Commission has also been presented with evidence confirming that the aforementioned developer has secured t 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 re- use 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 authorized and directed to execute the attached Development Agreement with Indian River Investments of Miami, Inc., in substantially the form attached, for the development of Parcel 46 of the Phase I Redevelopment Area of the Southeast Overtown/Park West Redevelopment Project, subject to a satisfactory residual re -use appraisal specifying that the rental payments due under the Agreement are not less than the fair value for the uses in accordance with the Redevelopment Plan. •186-11.0, -2- PASSED AND ADOPTED THIS 13th 1986. ATTEST: PREPARED AND APPROVED BY: ///' Zip) . J L. N 11 V .a APPROVED TO,,KO'RA AND CORRECTNESS BY: . uuuullLry1 1 f day of F�EBRUARY , d —3- 86-114) between i INDIAN RIVER INVESTMENTS OF MIAMI, INC. and 9 CITY OF MIAMI b DATED: February 5, 1986 f,. t! j r TABLE OF CONTENTS PAGE STATEMENT OF BACKGROUND AND PURPOSE ...................... 1 `A ARTICLE I - EXHIBITS AND DEFINITIONS Section 1.1. Exhibits ................................ 3 Section 1.2. Defined Terms ........................... 3 ARTICLE II - GENERAL TERMS OF LEASE OF LEASED PROPERTY Section 2.1. Lease of Leased Property to Developer... 10 b. Original Term ...................... 11 c. Renewal Term ....................... 11 d. Possession of Leased Property...... 13 e. Possession of Future Leased Property 14 f. Conditions Precedent ............... 15 i g. Developer Obligations Prior to Possession ....................... 17 Section 2.2. Restrictive Covenants ................... 17 a. Use Prohibitions of the Leased Property ......................... 18 b. No Discrimination .................. 18 C. Permitted Uses for Leased Property ......................... 19 d. Enforceability ..................... 19 Section 2.3. Easements ............................... 19 a. Existing Easements ................. 19 b. Easements Granted to Developer..... 19 c. Limitations on Easements Rights.... 20 d. Duration of Easements .............. 21 e. Confirmatory Instruments........... 21 Section 2.4. Title of Leased Property ................ 21 Section 2.5. Rental .................................. 22 a. Rentals Payable .................... 22 b. Payment of Rental .................. 23 c. Developer's Records ................ 24 Section 2.6. Covenants for Payment of Public Charges by Developer .................. 25 - Section 2.7. Approvals and Consents .................. 27 Section 2.8. Security and Police Protection.......... 27 a+" Section 2.9. Condition of Leased Property............ 27 Section 2.10. Roadways and Utilities .................. 28 ARTICLE III - CONSTRUCTION OF IMPROVEMENTS Section 3.1. Conformity of Plans ..................... 28 i 1 TABLE OF CONTENTS PAGE Section 3.2. Preliminary Plans ....................... 29 Section 3.3. Construction Plans ...................... 31 — Section 3.4. Facilities to be Constructed............ 33 Section 3.5. Maintenance of Leased Property.......... 33 �.. Section 3.6. Access .................................. 34 Section 3.7. Construction Period ..................... 34 Section 3.8. Progress of Construction ................ 34 Section 3.9. Certificate of Final Completion......... 36 Section 3.10. Connection of Building to Utilities..... 36 Section 3.11. Permits and Approvals ................... 37 Section 3.12. Compliance with Laws .................... 38 Section 3.13. Extension of Time Requirements.......... 38 Section 3.14. Alterations and Renovations ............. 39 ARTICLE IV - LAND USES Section 4.1. Land Uses ............................... 40 i� Section 4.2. Character and Operation of Improvements .......................... 40 ARTICLE V - ANTI -SPECULATION; ASSIGNMENT Section 5.1. Definitions ............................. 41 Section 5.2. Purposes of Restrictions on Transfer .............................. 43 Section 5.3. Transfers ............................... 44 Section 5.4. Notice of Transfer, Information as to Shareholders ....................... 46 Section 5.5. Effectuation of Certain Permitted Transfers ............................. 48 Section 5.6. Transfers of the City's Interest........ 49 Section 5.7. Subletting .............................. 49 ARTICLE VI - MORTGAGE FINANCING; RIGHTS OF MORTGAGE Section 6.1. Leasehold Mortgage ...................... 50 Section 6.2. No Waiver of Developer's Obligations of City's Rights ...................... 61 ' ARTICLE VII - REMEDIES Section 7.1. Events of Default - Developer........... 62 ' a. Failure - Payment of Money......... 62 1 f TABLE OF CONTENTS PAGE b. Failure - Performance of Other r-- Covenants, Etc.....** ............ 62 '+ C. Bankruptcy, etc .................... 63 Section 7.2. Remedies for Developer's Default........ 64 Section 7.3. Events of Default - City ................ 65 a. Events of Default .................. 65 b. Remedies for City's Default........ 65 Section 7.4. Unavoidable Delay ....................... 66 Section 7.5. Obligations, Rights and Remedies Cumulative ............................ 67 ARTICLE VIII - PROTECTION AGAINST MECHANICS' LIENS AND OTHER CLAIMS, INDEMNIFICATION Section 8.1. Mechanics Liens and Payments of Obligations ........................... 68 a. Developer to Discharge Mechanics' `I Liens ............................ 68 b. Payment of Materialmen and Suppliers ........................ 69 Section 8.2. Indemnity ............................... 69 ARTICLE IX - INSURANCE Section 9.1. Insurance Coverage ...................... 70 a. Property Insurance ................. 70 b. Automobile Liability Insurance..... 71 C. Liability Insurance ................ 72 d. Worker's Compensation .............. 72 e. Copies ............................. 72 Section 9.2. Responsible Companies - Blanket Insurance Permitted ................... 73 Section 9.3. Named Insureds - Notice to City of Cancellation .......................... 73 Section 9.4. City May Procure Insurance if Developer Fails To Do So .............. 74 Section 9.5. Insurance Does Not Waive Developer's Obligations ........................... 75 �-� Section 9.6. Loss or Damage Not to Terminate Rental or this Agreement .............. 75 Section 9.7. Proof of Loss ........................... 75 r / r f TABLE OF CONTENTS PAGE Section 9.8. Property Insurance Proceeds ............. 75 a. Authorized Payment ................. 76 b. Disposition of Insurance Proceeds for Reconstruction............... 76 C. Lenders and Lender/Landlords May Have Benefit of Insurance Fund for Reconstruction ............... 77 Section 9.9. Covenant for Commencement and Completion of Reconstruction.......... 78 Section 9.10. Developer's Rights In the Event of Uninsured Major Casualty .............. 78 ARTICLE X - CONDEMNATION Section 10.1. Entire Leased Property Taken by Condemnation .......................... 80 Section 10.2. Partial Taking of Leased Property byCondemnation ....................... 82 Section 10.3. Adjustment of Rent Upon Partial Taking ................................ 84 Section 10.4. Taking for Temporary Use or of Leasehold Estate ....................... 84 ARTICLE IX - RIGHTS OF OCCUPANCY AND ACCESS; MAINTENANCE; OWNERSHIP OF IMPROVEMENTS Section 11.1. Quiet Enjoyment ......................... 85 Section 11.2. Waste ................................... 86 Section 11.3. Maintenance and Operation of Improvements .......................... 86 Section 11.4. Ownership of Improvements During Lease.. 86 Section 11.6. City and Developer to Join in Certain Actions ....................... 87 ARTICLE XII - MISCELLANEOUS PROVISIONS Section 12.1. No Partnership or Joint Venture......... 87 Section 12.2. Recording, Documentary Stamps........... 87 Section 12.3. Florida and Local Laws Prevail.......... 88 Section 12.4. Conflicts of Interest; City Represen- tatives Not Individually Liable....... 89 Section 12.5. Notice .................................. 89 a. Developer .......................... 89 b. Developer's Records ................ 90 C. City Manager ....................... 90 Section 12.6. Estoppel Certificates ................... 90 ( iv) 86-110 7 Y f TABLE OF CONTENTS Section 12.7. Provisions Not Merged with Deed......... Section 12.8. Titles of Articles and Sections......... Section 12.9. Counterparts ............................ Section 12.10. Non -disturbance and Attornment.......... Section 12.11. Successors and Assigns .................. Section 12.12. Entire Agreement ........................ Section 12.13 Amendments .............................. ARTICLE XIII - ARBITRATION Section 13.1. Section 13.2. Exhibit A Exhibit B Exhibit C Exhibit D Exhibit E Exhibit F Exhibit G Exhibit H Panel ................................... Action, Hearings and Decisions.......... EXHIBITS PAGE 91 91 92 92 93 93 93 -- Survey and Plat -- Site Plan, Elevation, and Cross Section -- Legal Description -- Form of Performance Bond -- List of Approved Concept Plans -- Development Schedule -- Minority Participation Agreement -- List of Drawings Showing All Proposed Easements and Utilities to be Located at the Leased Property (v) 94 94 SG-110 LEASE AGREEMENT THIS LEASE AGREEMENT, made this day of 1986, by and between Indian River Investments of Miami, Inc., (hereinafter referred to as "Developer"), and the City of Miami, :y a municipal corporation of the State of Florida (hereinafter referred to as "the City"), acting by and through the City Manager (hereinafter referred to as "the City Manager"), with the prior approval of the City Commission of Miami. STATEMENT OF BACKGROUND AND PURPOSE The City is owner, in fee simple, subject to certain rights ►' of others, of all that certain land located between Northwest 2nd Avenue, Northwest 3rd Avenue, Northwest 7th Street, and Northwest 8th Street, in the City of Miami, County of Dade, State of Florida, which is collectively referred to herein as "Block 46." Block 46 is shown on the Survey and Plat attached hereto as Exhibit A. For the purpose of this Lease Agreement, Block 46 consists of land shown and designated on Exhibit A as the "Leased Property" on the east half of the block and the "Future Leased Property" on the west half of the block. By authority of the City of Miami Charter, the City on July 31, 1984 authorized the publication of a request for proposals for the unified development project to be known as Southeast Overtown/Park West Redevelopment Project Phase I Development. Developer submitted a proposal to develop a residential project to be known as "Poinciana Village," which will consist of -1- 0 86-ilo the following Developer Improvements generally shown on the Site Plan attached hereto as Exhibit B: A. Developer Improvements on the east half of Block 46 will consist of fifty-five (55) dwelling units in - buildings of two and three stories. These low-rise �Y Y' buildings will be arranged around the perimeter of the site to create a continuous pedestrian scaled streetscape. The interior of the block will be a landscaped open space amenity covering the parking areas. B. Developer Improvements on the west half of Block 46 will consist of ninety-seven (97) condominium units in t' low-rise buildings and a single tall building or tower of ten (10) floors. C. In addition to the interior landscaped open space, the development includes several other amenity features to include a covered pedestrian arcade and a public plaza. Also, covered parking will be provided for all units constructed. It is the mutual desire of the parties that Block 46 be leased and demised by the City to Developer for the purposes set 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 -2- 86-iso s 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 descriptions in this Statement of Background and Purpose are for illustrative purposes only, and as to such matters the Approved Construction Plans prepared by the parties shall control. Certain terms defined in the Statement of Background and Purpose are more particularly defined in Section 1.2, to which reference is hereby made. In consideration of the foregoing and of the rent, covenants, and agreements hereinafter set forth, the parties do ►f hereby covenant and agree as follows: f' ARTICLE I Section 1.1. Exhibits. Attached hereto and forming a part of this Agreement are the following Exhibits: Exhibit A -- Survey and plat Exhibit B -- Site Plan, Elevation, and Cross Section Exhibit C -- Legal Description Exhibit D -- Form of Performance Bond Exhibit E -- List of Approved Concept Plans Exhibit F -- Development Schedule Exhibit G -- Minority Participation Agreement Exhibit A -- List of Drawings showing all proposed easements and utilities to be located at the Leased Property Seotion 1.2. Defined Terms. As used herein the term: -3- �. _ "Acceptable Developer" means an entity possessing the experience, qualifications, good reputation, financial resources and adequate personnel necessary for the proper performance of all of Developer's obligations under this Lease in a manner consonant with the quality, reputation and economic viability of the Project, including (without limitation) the obligation of Annual Base Rental theretofore payable by Developer under this Lease. "Acceptable Developer Agreement" has the meaning ascribed to it in Section 6(c)(iv). "Acceptable Purchaser" has the meaning ascribed to it in Section 5.3(d). "Additional Rental" means any and all payments required of Developer to the City by the terms of this Lease other than Rental. "This Agreement" or "this Lease", means this Lease Agreement, as the same may be modified or amended from time to time. "Annual Basic Rental" has the meaning ascribed to it in Section 2.5(a). "Audited Financial Statement" means a Financial Statement certified by the Auditor to have been prepared in accordance with Generally Accepted Accounting Principles and Generally Accepted Auditing Standards as promulgated by the American Institute of Certified Public Accountants. "Auditor" means a nationally recognized firm of certified public accountants as may be used from time to time by the -4- 0 SG-iio ■ Developer for the purpose of certifying the annual reports of its financial condition required by law. Such firm of accountants must be a member of the commonly called "Big Eight" group of Accounting Firms. "Certificate of Final Completion" has the meaning ascribed to it in Section 3.9. "The City" has the meaning ascribed to it in the opening paragraph of this Agreement. "The City Manager" 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 Certificate of Final Completion pursuant to Section 3.9. "Condominium Owner" means any person, firm, corporation or other legal entity using or occupying or entitled to use or occupy the Developer Improvements upon purchasing a residential unit. "Construction Plans" has the meaning ascribed to it in Section 3.3. "Debt Service Payments" means all principal and interest, rental and other sums and amounts paid or payable for or during the applicable or pertinent period or in connection with any Leasehold Mortgage or any Sale-Subleaseback Transaction for the Developer's estate in the Leased Property and Developer Improvements and on borrowing to finance Capital Improvements; provided, however, that in the event of a foreclosure of any Leasehold Mortgage or the conveyance of Developer's estate in the -S- i 86-110 Leased Property and Developer Improvements to the holder of any ` Leasehold Mortgage (or the nominee of any such holder) by deed in a lieu of foreclosure, or in the event of the termination of any lease or sublease arising out of a Sale-Subleaseback Transaction for such estate, the term "Debt Service Payments" shall thereafter include all principal and interest, rental and other sums and amounts which would have become payable pursuant to or in connection with such Leasehold Mortgage or Sale-Subleaseback Transaction but for such foreclosure, deed in lieu of foreclosure or lease termination. "Default Rate" has the meaning ascribed to it in � subparagraph (b) of Section 2.5. 1 "Developer" has the meaning ascribed to it in the opening paragraph of this Agreement. "Developer Improvements" has the meaning ascribed to it in the statement of background and purpose. "Developer Maintenance Area" has the meaning ascribed to it in Section 3.5. "Developer Utility Easement" has the meaning ascribed to it in the subparagraph W of Section 2.3(b). "Environmental Laws" has the meaning ascribed to it in Section 3.11. "Events of the City's Default" has the meaning ascribed to it in Section 7.3(a). "Events of Developer's Default" has the meaning ascribed to it in Section 7.1(a)(b) and (e). -6- ��;-11U �ts -s "Fair Market Value" means the price, as of the date in question, which a seller, willing but not obligated to sell, would accept for the City's reversionary interest in the Leased Property or Future Leased Property and the Developer Improvements or the Developer's estate in the Leased Property or Future Leased Property and the Developer Improvements (as the case may be), and which a buyer, willing but not obligated to buy, would pay therefore in an arm's length transaction. "Final Substructure Plans" has the meaning ascribed to it in Section 3.3. "Financing Sublease" has the meaning ascribed to it in the definition of "Sale-Subleaseback Transaction." "Future Leased Property (or Premises)" means that property on the west half of Block 46 designated for the Developer to take possession of to construct Phase II of the Developer Improvements as described in Section 2.1. Said property is more particularly described in the legal descriptions attached hereto as Exhibit B. Upon taking possession of said property the Future Leased Property shall be known as the Leased Property. "Institutional Investor" has the meaning ascribed to it in subparagraph (b) of Section 6.1. "Insurance Trustee" has the meaning ascribed to it in Section 9.8(a)(II). "Leaseable Area" means the aggregate of the actual number of square feet of leaseable area in the Leased Property designated for the exclusive use and occupancy of rent paying Subtenants or Owners, excluding Common Areas, mezzanine storage areas, areas -7- ��-lso Y used for management offices, mechanical equipment, penthouse, and truck loading areas. "Leased Property" has the meaning ascribed to it in Section f 2.1. All terms and conditions relative to the Leased Property .. are also applicable to the Future Leased Property unless otherwise stated. "Leasehold Mortgag-a" has the meaning ascribed to it in subparagraph (a) of Section 6.1. "Lender" shall have the meaning ascribed to it in subparagraph (b) of Section 6.1. i "Lender/Landlord" means a lender, and any successor, assignee, transferred 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. "Original Term" has the meaning ascribed to it in subparagraph (b) of Section 2.1. "Owner" has the meaning ascribed to it in Section 5.1(b). "Possession Date" has the meaning ascribed to it in Section 2.1(d)(v). "Project" means the Poinciana Village to be constructed by Developer consisting of a one -hundred and fifty-two (152) unit condominium housing complex with supportive parking and recreational amenities to be located on Block forty-six (46) of the Southeast Overtown/Park West Redevelopment Project. -8- �a-ila :Y t r I "Public Charges" has the meaning ascribed to it in Section P-W;M "Reconstruction Work" has the meaning ascribed to it in subparagraph (b) of Section 9.8. "Renewal Term" has the meaning ascribed it in subparagraph (o) of Section 2.1. "Rent Commencement Date" means the date described as "Rent Commencement Date" subject to extensions or adjustments thereto for a period equal to any delay in the occurrence in the Completion Date due to Unavoidable Delays, as defined in Section 7.4. "Rental" has the meaning ascribed to it in subparagraph (a) Section 2.5. "Rental Year" means a calendar year consisting of twelve (12) consecutive calendar months beginning on January 1st and ending on December 31st of each year of this Lease. The first Rental Year during the term of this Lease shall commence on the Possession Date and end on December 31st of the same calendar year in which the Possession occurs. and the 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 shall be apportioned therefor. " Sale- Subleaseback Transaction" means Developer's sale to a Lender/Landlord of all or a substantial portion of Developer's interest in this Lease, and the subsequent execution of a sublease ("Financing Sublease") between Lender/Landlord and Developer. • SG-1l0 "Section", "Subseotion", ",paraolratih", "subparagraph", "clause", or "subelause" followed by a number or letter means the section, subsection, paragraph, subparagraph, clause or subelause of this Agreement so designated. "Southeast Overtown/Park West Redevelopment Project Phase I _v ioprment" (hereinafter referreed to as SEOPW) has the meaning ascribed to it in the Statement of Background and Purpose. "Sublease" means any lease, sublease, license or other agreement by which Developer or any person or other entity claiming under Developer (including, without limitation, a subtenant or sublicensee) demises, leases, subleases, licenses or sublicenses to or permits the use or occupancy by another person or entity of any part of the Leased Property or Future Leased Property and Developer Improvements. "Subtenant" means any person, firm, corporation or other legal entity using or occupying or entitled to use or occupy any part of the Leased Property or the Developer Improvements under a Sublease. ARTICLE II GENERAL TERMS OF LEASE OF LEASED PROPERTY Section 2.1. Lease of Leased Property 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) Premises. For the construction of Developer Improvements, the City demises and leases to Developer, and -10- I r- ti I Developer takes and hires from the City, all of the area described as Block 46 on Exhibit A and more particularly described in the legal descriptions attached hereto as Exhibit B, and subject to the restrictions, conditions, covenants and easements hereinafter mentioned, reserved or granted. Developer, however, shall take possession of Block 46 in two phases- Upon the execution of this Lease, City shall transfer to Developer the east half of Block 46 for the construction of Phase I of the Developer Improvements. Upon completing the construction of Phase I, Developer shall take possession of the west half of Block 46 ("Future Leased Property") for the construction of Phase II of the Developer Improvements. (b) Ordinal Term. To have and to hold the Leased Property for a term of fifty (50) years, commencing on the first day of the month next following the Possession Date of the Leased Property. Within thirty (30) days after the Possession Date, the City Manager and Developer, upon request of either party, shall execute one or more written memoranda in such form as will enable 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 for purposes of this paragraph (e) the Possession Date of the Future Leased Property shall be the same as that of the Leased Property as if all demised property was simultaneously transferred. (e) Renewal Term. Developer is granted an option, as limited by the express terms of this paragraph (c), to renew this Lease from time to time upon the same terms and conditions, -11- 86-110 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 y the expiration of the Original Term or the previous Renewal Term, as the case may be, and terminating on the twenty fifth (25th) and twenty fourth (24th), anniversary respectively, of such s expiration, by giving the City express written notice of a Renewal not less than twenty four (24) months before the date on which such renewal term is to commence. Developer At the City's option, such renewal request shall not be granted if either of the following occurs: (i) within five (5) years of the expiration of the Original Term or the immediately preceding Renewal Term, as the case may be, an event of Developer's Default shall have occurred and continued for one hundred eighty (180) days prior to the commencement of a Renewal Term; or Y (ii) at the time of the renewal more than forty per cent (40%) of the Leaseable Area have been converted to ' nonresidential usages regardless of any prior City approvals, i consents or inactions (including an allowable ten per cent (10%) of commercial usage.) _ The City Manager and Developer, upon request of either party shall execute one or more written memoranda in such form as will enable them to be recorded among the Land Records of Dade i County setting forth the beginning and termination dates of the Renewal Term, determined in accordance with this Agreement. -12- 86-110 t (d) Possession of Leased Property. The City shall deliver Y possession of the Leased Property as described in Section 2.1 to Developer, and Developer shall take immediate possession thereof if the following shall have occurred: (i) The City Manager shall have approved the 1,411 Preliminary Plans and Final Substructure Plan 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 commitment or commitments for each stage of the construction and permanent financing of the Developer Improvements to be constructed on the Leased Property, or such other evidence as may be reasonably satisfactory to the City Manager that such financing has been committed or is available which approval shall not be unreasonably withheld. The City Manager must approve such financing if same is on terms prevailing in the then current y market place in the United States. Developer may, at its option, self -finance all or a portion of the Developer Improvements provided, however, that Developer must demonstrate the availability of funds to complete the Project or phase; (iii) The City Manager shall have received 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. Said Performance Bond is attached hereto as Exhibit D; and -13- ti 4 (iv) All governmental permits and approvals required to commence construction shall have been obtained by Developer; a nd -- (v) The subcontractors for Phase I of the Project have been selected and Developer has clearly demonstrated that diligent good faith efforts were put forth to meet the goals established for minority contractors participation in the y Project. (vi) The date that the City delivers possession of the { Leased Property to Developer in accordance with this paragraph E s (d), by notice in writing, is herein called "Possession Date". (e) Possession of Future Leased Property. The City shall deliver possession of the Future Leased Property as described in Section 2.1 to Developer, and Developer s shall take immediate possession thereof if the following shall have occurred: (i) The Developer shall have completed construction of the Developer Improvements on the Leased Property; i (ii) The City Manager shall have approved the Preliminary Plans and Final Substructure Plan for the Developer Improvements to be constructed on the Future Leased Property, as provided in Sections 3.2 and 3.3; (iii) The City Manager shall have received and approved the commitment or commitments for each stage of the construction and permanent financing of the Developer Improvements to be constructed on the Future Leased Property, or such other evidence as may be reasonably satisfactory to the City -14- SG-iio Y� S Manager that such financing has been committed or is available which approval shall not be unreasonably withheld. The City Manager must approve such financing if same is on terms f prevailing in the then current market place in the United States. Developer may, at its option, self -finance all or a portion of the Developer Improvements provided, however, that Developer must demonstrate the availability of funds to complete the Project or phase; and (iv) All governmental permits and approvals required to complete construction shall have been obtained by Developer; and (v) The subcontractors for Phase II of the Project have been selected and Developer has clearly demonstrated that diligent good faith efforts were put forth to meet the goals established for minority constractors' participation in the Project; and (vi) The date that the City delivers possession of the Future Leased Property to Developer in accordance with this s paragraph (d) , by notice in writing, is herein called "Possession a Date." (f) Conditions Precedent. Developer shall not be obligated r to take possession of either the Leased Property or the Future Leased Property, as appropriate or to perform any other obligations under this Lease unless and until the following shall have occurred or have been obtained: F (i) the City Manager has approved all the Construction r Plans for the Developer Improvements; and -15- '' r -j 0 1 4- (ii) Developer has obtained all governmental approvals and permits necessary for construction of the Developer Improvements; and (iii) Developer shall have obtained a commitment or commitments, on terms and in a form satisfactory to Developer, from Institutional Investors or Lender/Landlords for construction and long term financing of the Developer Improvements; and (iv) Developer shall be satisfied that the development of the Project will not violate the Environmental Laws (hereinafter defined) . Developer and the City shall use good faith efforts to satisfy all of the aforesaid conditions precedent. It is recognized by the parties thereto that it is not the intention of either party to encumber the Leased Property or Future Leased Property with this Lease for an indefinite period of time during the period of satisfaction of the aforesaid conditions precedent and that therefore either party shall have the right to terminate this Lease if all of the aforesaid conditions precedent are not satisfied or waived on or before ninety (90) days after approval of this Agreement. No waiver of any of the foregoing conditions precedent shall be implied by any conduct of Developer, including (without limitation) any election by Developer to proceed with any development activity prior to the satisfaction of all of such conditions precedent, it being agreed that any waiver by Developer of any such condition precedent shall be effected only s by Developer's express written statement to that effect delivered to the City or the City Manager. -16- S,G-sio ,4 1 - it 3 No waiver of any of the foregoing conditions precedent shall be implied by any conduct of the City, it being agreed that any waiver by City of any such condition precedent shall be effeoted only by City's express written statement to that effect delivered to Developer. (g) Developer Obligations Prior to Possession. Notwith- standing anything herein to the contrary, until possession of the Leased Property or Future Leased Property shall have been delivered to Developer pursuant to the provisions of clause (f) of this Section 2.1, Developer shall not be required to perform any of its obligations hereunder with respect to any portion of the Leased Property or Future Leased Property as to which possession shall not have been so delivered to the extent that such possession shall be reasonably required for the performance of such obligation. Section 2.2. Restrictive Covenants. The restrictive covenants contained in paragraphs (a) through (o) of this Section 2.2 are intended and designed to bind the Developer and the City and their respective successors and assigns and bind upon and run with the Leased Property throughout the entire term of this Lease, including any Renewal Term and any new lease executed pursuant to the provisions of Sections 6.1 and 6.2. The parties recognize, however, that the development and operation or tine Leased Property and the Developer Improvements in a manner which is in the best interests of both parties may from time to time require the confirmation, clarification, amplification, or elaboration of this Agreement in order to deal adequately with -17- 8E;-110 L' S a +R S circumstances which may not now be foreseen or anticipated by the parties. The parties reserve unto themselves the right to enter into such interpretive, implementing or confirmatory agreements from time to time as they may deem necessary or desirable for any such purpose without obtaining the consent or approval of any person or entity not a party to this Agreement except as may be expressly otherwise provided in this Lease or by law: j (a) Use Prohibitions of the Leased Pro-perty. The Leased Property hereby demised shall not be used for the following: W Coinbox entertainment (pinball, video games, moving pictures operated by coins); or iF (ii) Any unlawful or illegal business, use or purpose, or for any business, use or purpose which is immoral or disreputable (including without limitation "adult entertainment S establishments" and "adult" bookstores) or extra -hazardous, or in such manner as to constitute a nuisance of any kind (public or } private) , or for any purpose or in any way in violation of the certificates of occupancy (or other similar approvals of applicable governmental authorities). (b) No Discrimination, No covenant, agreement, lease, conveyance or other instrument shall be effected or executed by Developer, or any of its successors or assigns, whereby the Leased Property or any portion thereof is restricted by Developer, or any successor in interest, upon the basis of race, color, religion, sex, national origin or handicap in the sale, lease, use or occupancy thereof. Developer will comply with all applicable state and local laws, in effect from time to time, -18- SE;-110 prohibiting discrimination or segregation by reason of race, color, religion, sex, national origin or handicap in the sale, lease or occupancy of the Leased Property. (e) Permitted Uses for Leased Propej!tX. The only uses permitted on the Leased Property are residential, supporting commercial and general commercial as limited by Section 2.1(a). (d) Enforceability. It is intended and agreed hereby that the restrictive covenants contained in this Section 2.2 shall be binding upon the City and the Developer, their successors and assigns, and any covenants running with the Land and successors in interest, as the case may be, and shall be for the benefit and in favor of, and enforceable by the Citv and Developer respectively, as the case may be; provided, however, that such covenants shall be binding on Developer, and the City, and their respective successors in interest and assigns, only for such period as each shall have (i) fee title to the Leased Property, as to the City, and (ii) the leasehold estate herein demised to Developer, as to Developer. Section 2.3. Easements. The following easements presently exist or are hereby granted. (a) Existing Easements. There are no existing easements on the Leased Property. (b) Easements Granted to Developer. The City grants unto Developer, its successors and assigns the following: (i) the non-exclusive right and easement (the "Developer Utility Easement") to install, maintain, repair and a replace utility facilities such as water, gas, electric, and -19- i r telephone lines and storm and sanitary sewers underground within portions of the Leased Property, and any other property owned by the City which is not a dedicated street, in the location shown therefore on the approved Construction Plans or in such other locations as may be approved b the City Manager from time to Y pp Y Y g time; (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. (c) Limitations on Easement 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 our 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 construction, maintenance or repair activity with diligence and dispatch and shall use its diligent efforts to complete the same in the shortest time possible under the circumstances, and (B) shall not carry on any construction, maintenance or repair activity in the easement area in such manner as to unreasonably interfere with the use and enjoyment of the servient tenement, in carrying on such activities, will do so in such a manner as not to unreasonably interfere with business or businesses then being conducted in the Developer Improvements MAE &G-iio or on the Leased Property by Developer or its Subtenants or Condominium Owners. (2) Except in the event of emergency, the party having the benefit of such easement shall not carry on any construction, replacement, maintenance or repair activity at any time in such r easement area until notifying such party of its intention to do SO. (3) Promptly upon the completion of any such construction, repair or maintenance activity, the party having the benefit of such easement shall, at its expense, restore the surface of the easement area as nearly as possible to its former condition and appearance. (d) Duration of Easements. Unless a shorter term is a provided, each of the rights and easements granted or reserved in paragraphs (a) and (b) of this Section 2.3 shall be for the Original Term of this Lease, for each Renewal Term, and for the term of any new lease made pursuant to the provisions of Sections 6.1 and 6.2. (e) Confirmatory Instruments. Each party covenants and agrees that from time to time at the request of the other party, it shall execute and deliver such additional documents or instruments confirming the rights and easements granted and reserved in this Section 2.3 or more precisely fixing their location as such requesting party shall deem to be necessary or desirable. Section 2.4. Title of Leased Property. The City represents, covenants and warrants that it has good and -21- ESE,-110 y�t • Y +wt or on the Leased Property by Developer or its Subtenants Or Condominium Owners. (2) Except in the event of emergency, the party having the benefit of such easement shall not carry on any construction, replacement, maintenance or repair activity at any time in such easement area until notifying such party of its intention to do SO. (3) Promptly upon the completion of any such construction, repair or maintenance activity, the party having the benefit of such easement shall, at its expense, restore the surface of the easement area as nearly as possible to its former condition and appearance. (d) Duration of Easements. Unless a shorter term is provided, each of the rights and easements granted or reserved in paragraphs (a) and (b) of this Section 2.3 shall be for the Original Term of this Lease, for each Renewal Term, and for the term of any new lease made pursuant to the provisions of Sections 6.1 and 6.2. (e) Confirmatory Instruments. Each party covenants and agrees that from time to time at the request of the other party, it shall execute and deliver such additional documents or instruments confirming the rights and easements granted and reserved in this Section 2.3 or more precisely fixing their location as such requesting party shall deem to be necessary or desirable. Section 2.4. Title of Leased Property. The City represents, covenants and warrants that it has good and -21- fy. SG-110 r■rii 3 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. Section 2.5. Rental. The Rental Commencement Date is that date on which the Developer takes possession of the Leased Property. Until the j City grants possession of the Future Leased Property to Developer i x the minimum Annual Basic Rental due to the City shall be reduced by 1/2 (50%). Once possession of the Future Leased Property is granted, the temporary reduction shall no longer be in effect and a y► all time components of the Rentals Payable shall be computed as though all property was possessed at the first Possession Date. i (a) Rentals Payable. Developer covenants and agrees to pay the City during the Lease term, as rental ("Rental") for the property in its possession , an Annual Basic Rental as follows: W ($5,000.00) for each of the first two Rental Years following the Rent Commencement Date; and m (ii) the greater of: (a) An Annual Basic Rental of ten thousand a dollars ($10,000.00) per year for Rental Years 3 and 4; or (b) The total assessed valuation including real property and all Developer Improvements, for each year during Rental Years 3 and 4, multiplied by a factor of .002 (or .2%); and (iii) the greater of: -22- V6r1 1V • Aa 4 3 T 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. Section 2.5. Rental. The Rental Commencement Date is that date on which the Developer takes possession of the Leased Property. Until the City grants possession of the Future Leased Property to Developer the minimum Annual Basic Rental due to the City shall be reduced by 1/2 (50%). Once possession of the Future Leased Property is granted, the temporary reduction shall no longer be in effect and all time components of the Rentals Payable shall be computed as though all property was possessed at the first Possession Date. (a) Rentals Payable. Developer covenants and agrees to pay the City during the Lease term, as rental ("Rental") for the property in its possession , an Annual Basic Rental as follows: (i) ($5,000.00) for each of the first two Rental Years following the Rent Commencement Date; and (ii) the greater of: (a) An Annual Basic Rental of ten thousand dollars ($10,000.00) per year for Rental Years 3 and 4; or (b) The total assessed valuation including real property and all Developer Improvements, for each year during Rental Years 3 and 4, multiplied by a factor of .002 (or .2%); I. (iii) the greater of: -22- S.;-110 �rrriri (a) An Annual Basic Rental of twenty thousand A dollars ($20,000.00) per year beginning at Rental Year 5 and terminating at the end of the Original Term and applicable Renewal Terms(s), pursuant to the terms and provisions specified "rL in Sections 2.1(b) and 2.1(c) of this Agreement; or (b) The total assessed valuation including real property and all Developer Zmprovments, for each year beginning at Rental Year 5 and terminating pursuant to the terms and provisions specified in Sections 2.1(b) and 2.1(c) of this Agreement, multiplied by a factor of .004 (or .4%). (b) Payment of Rental. Annual Basic Rental shall commence to accrue on the Rent Commencement Date. Annual Basic Rental shall be payable in equal monthly installments in advance on the first day of each full calendar month following the Rent Commencement Date during the term of this Lease, the first such payment to include also any prorated Annual Basic Rental for the period from the Rent Commencement Date to the first day of the full calendar month thereafter 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 Manger shall designate from time to time in a notice given pursuant to the provisions of Section 12.5. Any late payment shall automatically accrue interest at a rate equal to two (2) percent above that rate charged by the Citibank, N.A, of New York to its best commercial customers, generally referred to as its prime rate ("Default Rate") from the date that payment was due. Any overpayment of Annual Basic Rental at the end of each Rental Year -23- 2 86-sio 8 n shall be paid to Developer within thirty (30) days of receipt of such report or, at the option of Developer, the Developer shall a credit such amount to the Rental due in the next Rental Year. If there is an under payment of Annual Basic Rental, Developer shall k � pay the City the amount of the deficiency within thirty (30) days of the City's receipt of the report. (c) Developer's Records. For the purpose of permitting verification by the City of any amounts due on account of Annual Basic Rental, Developer will keep and preserve for at least three (3) years in Dade, County, Florida, at the address specified in r Section 12.5, auditable 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 a his designee, shall have the right during business hours to inspect such books and records and make any examination or audit 9 thereof which the City may desire. If such audit shall disclose i t a liability for Rental in excess of the Rental theretofore paid i a by Developer for the period in question, Developer shall promptly pay such additional Rental and if such audit shall disclose an overpayment of the Rental theretofore paid, the City shall promptly return the excess to the Developer. Developer further covenants and agrees to deliver to the City commencing as of the Rent Commencement Date within sixty (60) days after the close of each Rental Year and after the termination of the Lease, a statement showing, in reasonable -24- bid;-110 detail, the computation of the Annual Basic Rental for the Y f preceding Rental Year. The annual statement shall be signed and verified by an appropriate, authorized officer or General Partner of Developer stating specifically that such officer has examined _ lift: the report, that such officer's examination included such tests of Developer's books and records as such officer considered 3 necessary under the circumstances, and that such report presents fairly the Rental due with respect to the 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 records as may be necessary to certify the amount of the Rentals due with respect to such Rental Year. Developer shall promptly pay to the City, as Additional Rental, the cost of any audit performed by or for the City, in the event the City's audit was in lieu of an annual report by Developer or if the City audits the annual report at its own initiative and demonstrates a discrepancy of more than three percent (3%) in the amount of Annual Basic Rentals due to the City. Section 2.6. Covenants for Payment of Public Charge_ s by Developer. Developer, in addition to the Rental, covenants and agrees to pay and discharge, before any fine, penalty, interest or cost may be added, all real and personal property taxes, all ad valorem real property taxes, all taxes on rentals payable hereunder and under subleases, public assessments and other M r public charges including but not limited to electric, water and -25- -110 1 sewer rents, rates and charges (all such taxes, public assessments and other public charges being hereinafter referred to as "Public Charges") levied, assessed or imposed by any public authority against the Leased Property, including all improvements thereon in the same manner and to the same extent as if the same, together with all improvements thereon, were owned in fee simple by Developer; provided, that Developer's obligation to pay and discharge Public Charges levied, assessed or imposed against or with respect to the Leased Property shall not commence until the Possession Date. Notwithstanding the provisions of this Section 2.6, Developer shall have the right to contest the amount or validity, in whole or in part, of any Public Charges by appropriate proceedings. The City agrees to consent to and/or formally join in any such proceedings to the extent it may be allowed by law, if such consent and/or joiner be required by law for the prosecution thereof. Developer shall pay all charges for metered water, sewer service charges and other fees or charges lawfully imposed by any public authority upon or in connection with the Leased Property. The City agrees that it will not impose any special assessment or other Public Charges (other than as valorem real property taxes) against the Leased Property or the Developer Improvements with respect to the construction, operation, repair and maintenance of any improvements the City is obligated to construct pursuant to this Lease. The City retains all its rights to impose special assessments or other public charges for all other purposes. W=E SIG-110 4 1 Developer, upon written request, shall furnish or cause to be furnished, to the City Manager, official receipts of the appropriate taxing authority, or other proof satisfactory to the City Manager evidencing the payment of any Public Charges, which were delinquent or payable with penalty thirty (30) days or more prior to the date of such request. Section 2.7. Approvals 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. Security and Police Protection. Developer shall have the responsibility for providing all security and protection for the Leased Property. The City shall provide the same security and police protection in the Leased Property as is afforded all other City areas. Section 2.9. Condition o of Leased Property. On the Possession Date the City shall deliver to the Developer possession of the Leased Property and Future Leased Property respectively, free of any and all tenancies or other rights or claims of rights to its use and occupancy. Prior to each Possession Date, the Leased Property and Future Leased Property shall be maintained by the City and delivered to Developer as cleared land, with no representations made as to subsurface conditions. The City agrees not to adversely or materially alter the Leased Property nor Future Leased Property prior to each each Possession Date without Developer's prior written approval. The -27- G 86-110 .. .Wilk.:?.SR;F.='u7.4'MVY}VR'g'iTM7JM to r's`°c�;,ri,e-"a{-'"£"'."A 4•'!P,•rnvwm'Puxe,{ga:: _. � � a City shall perform at its sole expense, all necessary relocation, M demolition, and clearance with respect to the Leased Property and Future Leased Property, prior to the respective Possession Dates. Section 2.10. Roadways and Utilities. The City shall without expense to Developer or public assessment against the Leased Property, provide for the abandonment of all public streets and rights of way within the Leased Property. The City shall cooperate with and assist the Developer in the termination or transfer to the Developer, of all existing easement rights with respect to water mains, sanitary sewers, storm drains, conduits, gas and 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 at the Leased Property within its control. All termination, abandonment, transfer and relocation, as applicable, to be done shall be done or performed in accordance with provisions of this Section 2.10 with respect to the Leased Property as rapidly as practicable and in a manner which will coordinate in a reasonable manner with construction of the I Developer Improvements. ARTICLE III i CONSTRUCTION OF IMPROVEMENTS z Section 3.1. Conformity of Plans. Preliminary Plans and Construction Plans and all work by Developer with respect to the Leased Property and the construction of Developer Improvements 3 thereon shall be in conformity with this Agreement, the Miami -28- s Charter and Code, the South Florida Building Code, and all other applicable state, county and local laws and regulations. Section 3.2. Preliminary Plans. The City acknowledges that prior to the execution of this Lease. Developer has submitted to the City and the City has approved the concept plans (the "Concept Plans") for the construction of the Developer Improvements, a list of which is attached hereto as Exhibit E. Developer shall submit to the City Manager at the times hereinafter set forth, two sets of plans (the "Preliminary Plans"). For the purpose of this Lease, "Preliminary Plans" shall consist of site plans and structure elevations and sufficient detail to show site planning, architectural design and layout, materials, building construction, landscaped design, access, streets, and sidewalks. The City acknowledges that, in order to meet the schedule for construction, the Developer shall be submitting Preliminary Plans in stages for approval. The City shall not be required to issue permits or other formal governmental approvals to Developer for a particular stage until the City Manager has approved a Site Drawing depicting all stages of 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 constructed shall be submitted to the City Manager on the date set forth on Exhibit F. Upon receipt of each set of Preliminary Plans representing a certain stage of construction, the City Manager shall review the same and shall �i"Si�I•�jl^^^7 7 • -29- 86-11d ;a F promptly (but in any event within fifteen (15) days after such receipt), give Developer notice of its approval or disapproval setting forth in detail its reasons for any disapproval. The City Manager's right to disapprove the Preliminary Plans submitted shall be limited to matters depicted in the Preliminary Plans for Developer Improvements which do not conform substantially to the Concept Plans or previously approved Preliminary Plans for other stages of the Project or are new elements not presented in the Concept Plans, or matters which are violations of this Lease or of applicable governmental ordinances, codes, plans, laws or regulations. If no response from the City is delivered to Developer within fifteen (15) days after the submission of such Preliminary Plans, or any resubmission thereof as hereinafter provided, they shall be deemed approved, except that no violations of applicable governmental ordinances, codes, plans, laws, regulations or of this Agreement shall be deemed waived thereby. In the event of a disapproval, Developer shall, within fifteen (15) days after the date Developer receives the notice of such disapproval, resubmit such Preliminary Plans to the City Manager, altered to meet the grounds of disapproval. Any resubmission shall be subject to review and approval by the City Manager. In accordance with the procedure hereinabove provided for an original submission, until the same shall be approved by the City Manager, provided that in any event Developer shall submit all Preliminary Plans for the construction of Developer Improvements which meet all of the grounds for disapproval of which the City Manager has given -30- s notice not later than the first anniversary of the date of this Lease. City and Developer shall in good faith attempt to resolve any disputes concerning the Preliminary Plans. Section 3.3. Construction Plans. For the purpose of this Lease, "Construction Plans" shall consist of final working drawings and specifications inoluding (without limitation) the following information, (a) definitive architectural drawings; (b) definitive foundation and structural drawings (the "Final Substructure Plans"), (e) definitive electrical and mechanical drawings including (without limitation) plans for all lighting facilities affecting the exterior appearance of the Developer Improvements; and (d) Final specifications but excluding drawings and specifications relating to subtenant improvements. Not later than sixty (60) days after approval of Preliminary Plans for a particular stage of construction, Developer shall submit to the City Manager two sets of Construction Plans for the same stage. Upon receipt thereof, the City Manager shall review the same and shall promptly (but in any event within ten (10) working days after such receipt), give Developer notice of its approval or disapproval, setting forth in detail its reasons for any disapproval. The City Manager's right to disapprove the Construction Plans submitted shall be limited to matters depicted in the Construction Plans which do not conform substantially to the approved Preliminary Plans or previously approved Construction plans for other stages or are new elements not presented in the approved Preliminary Plans or are violations of this Lease or of governmental ordinances, codes, plans or -31- 86-114 regulations. If no response from the City is delivered to Developer within ten (10) days after the submission of such Construction Plans, or any resubmission thereof as hereinafter provided, they shall be deemed approved except that no violations of applicable laws, ordinances, codes, regulations or of this Agreement shall be deemed waived thereby. In the event of a disapproval, Developer shall, within thirty (30) days after the date Developer received the notice of such disapproval, resubmit the Construction Plans for that stage to the City Manager, altered to meet the grounds of disapproval. Any resubmission shall be subject to review and approval by the City Manager, in accordance with the procedure hereinabove provided for an original submission, until the same shall be approved by the City Manager, provided, that in any event Developer shall submit all Construction Plans for the construction of Developer Improvements which meet all of the grounds for disapproval of which the City Manager has given notice not later than six (6) months after approval of all of the Preliminary Plans. The City and the Developer shall in good faith attempt to resolve any disputes regarding the Construction Plans. No approval by the City Manager of any Construction Plans or Preliminary Plans pursuant to this Article shall relieve Developer of any obligation it may have at law to file such Construction Plans with any department of the City or any other governmental authority having i jurisdiction over the issues or to obtain any building or other permit or approval required by law. -32- ��-1 to Developer acknowledges that any approval given by City Manager pursuant to this Article III shall not constitute an opinion or agreement by the City that the plans are structurally sufficient or in compliance with any laws, codes or other applicable regulations, and no such approval shall impose any liability on or waive any rights of the City. Developer agrees that it shall provide the City with copies of all plans and specifications used in the construction of the Developer Improvements. Developer agrees to use its diligent efforts to obtain the consent of the Leasehold Mortgagee to the vesting in the City of all rights, title and interest in the plans and specifications if this Lease is terminated by reason of an Event of Developer Default. Section 3.4. Facilities to be Constructed. Developer agrees to erect the Project on the Leased Property, at its sole cost and expense, containing the facilities more particularly described in the Construction Plans which shall conform to the covenants contained in Section 2.2 and which are referred to throughout this Lease as "Developer Improvements". Section 3.5. Maintenance of Leased Property. The Developer, without cost or expense to the City, at all times during the term of this Lease, (including any Renewal Term and any new lease executed pursuant to the provisions of Sections 6.1 and 6.2) shall maintain and keep or cause to be maintained and kept in good order, repair and appearance all of the property and improvements located in the Leased Property. -33- 4 86-110 d Section 3.8. Access. Prior to delivery of possession of } the Leased Property and Future 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, ar including (without limitation) the placement of construction trailers and staging area on or adjacent to the Leased Property and Future Leased property at no cost to the Developer. The provisions of this paragraph shall not take effect until Developer, at its sole cost and expenses shall have secured or caused to be secured comprehensive general public liability insurance as required in Article IX of this Agreement. Section 3.7. Construction Period. Developer shall commence construction of each phase of the Developer Improvements not '.ester than thirty (30) days after the respective Possession Date or as soon thereafter as weather permits (but not earlier than the approval of the Construction Plans) and shall complete the same substantially in accordance with the Developer's approved Construction Plans in accordance with the Development Schedule attached hereto as Exhibit F. At the request of either party, the parties will execute and deliver from time to time such z certificates, documents or instruments as may be appropriate to confirm the dates of commencement or completion of construction 1 as above provided, which certificates, documents or instruments may be recorded by the party requesting the same at its expense. j Section 3.8. Progress of Construction. Subsequent to the tf delivery of possession of the Leased Property and Future Leased -34- SG--iso Property to Developer, and until construction of the Developer Improvements has been completed, Developer shall keep the City Manager apprised of the progress of Developer with respect to such development and construction. During such period the work of Developer shall be available for inspection by a full-time, on -site representative of the City Manager. The Developer shall provide suitable work space and utilities for the representative at Developer's cost. Developer, by executing this Agreement, represents it has visited the site, is familiar with local conditions under which the construction and operation is to be performed, will perform all test borings and subsurface engineering generally required at the site under sound and prudent engineering practices, and will correlate the results of its test borings and subsurface engineering and other available studies and its observations with the requirements of the construction and operation of the Project. The Developer shall restore the site to its original condition after all testing, and shall provide the City with a copy of all results. The City makes no warranty as to subsoil conditions. Developer shall not be entitled to any adjustment of Rental or of any applicable time requirements in the event of any abnormal subsoil conditions unless the subsurface conditions are so unusual they could not have been reasonably anticipated. Developer shall proceed with the construction of the Developer Improvements as set forth in the Development Schedule attached hereto as Exhibit F. -35- a6-iio In accordance with the City's Zoning Ordinance, Developer a shall provide covered parking for each residential unit constructed. Developer is not required to construct the parking facility simultaneously with the construction of the units; however, Developer shall post a five thousand dollar ($5,000) bond for each unit's parking. Upon occupancy or sale of at least thirty-one units the parking facility for said units shall be completed. Section 3.9. Certificate of Final Completion. Promptly after completion of each phase of construction of the Developer Improvements on the Leased Property in accordance with the ►► provisions of this Agreement, the City Manager will furnish Developer with an appropriate instrument so certifying (the "Certificate of Final Completion"). The Certificate of Final Completion shall be in such form as will enable it to be recorded among the Land Records of Dade County. If the City Manager shall refuse or fail to provide such certification in accordance herewith, the City Manager shall, within fifteen (15) days after written request by Developer, provide Developer with a written statement indicating in adequate detail in what respects ` Developer has failed to complete the Developer Improvements in accordance with the provisions of this Agreement, or is otherwise in default, and what measures and acts, in the opinion of the City Manager, are necessary for Developer to take or perform in A 3 order to obtain such certification. Section 3.10. Connection of Building to Utilities. Developer, at its sole cost and expense, will install or cause to 3 -36- be installed all necessary connections between the Developer Improvements constructed or erected 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 Miami -Dade Water and Sewer Authority. Developer shall pay for the additional cost, if any, of locating and installing new facilities for sewer, water, electrical, and other utilities as needed to service the Leased Property and the Future Leased Property. Section 3.11. Permits and Approvals. Except as otherwise provided in this Section 3.11, Developer shall secure and pay for any and all permits and approvals necessary for proper construction and completion of the Developer Improvements and Developer shall secure any and all permits and approvals required to perform any and all of the work or operations contemplated to be done or performed under any of the provisions of this Agreement including, but not limited to, any alterations and renovations made pursuant to Section 3.14 hereof, and shall pay any and all fees and charges due to and collected by the City in connection with the issuance of any such permits and approvals. If the City Manager's office shall be vacant or if the authority of the City Manager shall change such that the City Manager shall not have the full authority to perform the obligations imposed on that office envisioned under this Lease, then the City shall, promptly upon request of the Developer, designate such other officer or department as may be appropriate to perform the City Manager's obligations. -37- SG-110 Developer shall secure and pay for any and all permits and approvals necessary for proper construction and completion of the Developer improvements with the exception of the permits and approvals required pursuant to Section 380.06, Florida Statutes 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 y { { work or operations contemplated to be done or performed under any of the provisions of this Agreement including, but not limited to, any alterations and renovations made pursuant to Section 3.14 r hereof, and shall pay any and all fees and charges due to and } collected by the City in connection with the issuance of any such permits and approvals. Developer shall also pay for any impacts or exactions for which he is responsible. Section 3.12. Compliance with Laws. Developer will comply in every respect with any and all federal, state, county and 1 ' municipal laws, ordinances, rules, regulations, orders and i notices now or hereafter in force or issued which may be applicable to any and all of the work or operations to be done, performed or carried on by Developer under the provisions of this Agreement including alterations and renovations pursuant to Section 3.15 of his Agreement. Nothing herein shall limit the right of Developer to contest the validity or enforceability of any statute, law, ordinance, rule, regulations, order or notice with which Developer may be required to comply hereunder. Section 3.13. Extension of Time Reauirements. The times within which Developer must submit Preliminary Plans, -38- SGr1 1 v a Construction Plans and evidence of equity capital and commitments for mortgage financing, and the times within which Developer must commence and complete the development of the Leased Property and Future 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 its sole discretion, for such periods of time as it deems advisable, for good and sufficient cause shown by the Developer to the reasonable satisfaction of the City Manager. Any such extension of time shall be in writing and in such form as will enable it to be recorded among the Land Records of Dade County. Section 3.14. Alterations and Renovations. After the completion of construction of the Developer Improvements, Developer from time to time may make such alterations or renovations thereof as it shall deem desirable when the renovations are permitted by the Building and Zoning Department of the City and cost less than fifteen thousand dollars ($15,000). No renovation or alteration which affects the exterior appearance of the Developer Improvements or substantially affects the overall character and appearance of the Project or whose cost is $15,000 or more shall be made until such time as the City Manager shall have approved definitive construction plans and specifications therefore, which approval or disapproval be given within thirty (30) days of receipt of the request or be deemed approved. City reserves the right to extend the time period for approving or disapproving such alterations and renovations that are inconsistent with the previously M'11 S'G-ilo approved construction plans. Developer must also secure and pay for any and all permits and approvals required to perform any of the contemplated alterations or renovations. IL ARTICLE IV a. Ed LAND USES Section 4.1. Land Uses. Developer and the City agree, for A 2 themselves and their successors and assigns, to devote the Leased Property, to the uses specified in this Agreement and to be bound by and comply with all of the provisions and conditions of this Agreement. Ij Section 4.2. Character and Operation of Improvements. The parties recognize and acknowledge that the manner in which the Developer Improvements on the Leased Property are developed, used and operated are matters of critical concern to the City by i reason of the economic development of the downtown area of the a City. Developer shall have the right to Lease the Developer Improvements or a portion thereof to individual residential Y tenants on an interim basis, while the same are held by the I Developer for sale for the period of time allowed pursuant to Chapter 718, Florida Statutes. Developer shall prepare condominium documents establishing such reasonable rules and regulations governing the occupancy of Subtenants and Condominium Owners of their premises as Developer shall deem necessary or desirable in order to assure the level of quality and character of operation of the Developer Improvements -40- 86--110 required herein, and it will use all reasonable efforts to enforce such rules and regulations. Said documents are subject to the approval of the City Attorney and the rules and 3 regulations included therein shall be in accordance with the provisions set forth in Chapter 718, Florida Statutes governing condominium and shall not conflict with this Lease or City's interest. In addition to which, the condominium documents shall b include the provision requiring the construction of a covered parking facility for the residential units constructed. The City shall also review and approve within thirty (30) days of receipt all contracts to purchase the residential units. ARTICLE V ANTI -SPECULATION: ASSIGNMENT Section 5.1. Definitions. As used herein, the term, a) "Transfer" means: (i) any total or partial sale, assignment or conveyance (other than by a Leasehold Mortgage or Financing Sublease) or any trust or power, or any transfer in any other mode or form of or with respect to this Lease or of the leasehold estate in the Leased Property and Future Leased Property or any part thereof or any interest therein, or any contract or agreement to do any of the same. (ii) any transfer of the stock of the General Partner of Developer or of any Owners other than an Owner whose shares are publicly traded; or -41- S ;-110 I 1� (iii) any merger, consolidation or sale or lease of all or substantially all of the assets of Developer or of any Owner, other than an owner whose shares are publicly traded; or (iv) any Sublease of over fifty (50) percent of the Leaseable Area of the Project to a single Subtenant or Subtenants ` who are related in their ownership, except for a Financing ► Sublease. (b) "Owner" means: (i) any person, firm, corporation or other entity which owns, directly or indirectly, legally or beneficially, one percent (1%) or more of the stock of the General Partner of Developer (excluding any shareholder of an Owner whose shares are publicly traded) or other form of ownership interest of the Developer; and (ii) any person, firm, corporation or other entity which owns, directly or indirectly, legally or beneficially, more than fifty percent (50%) of the stock of the General Partner of Developer or other form of ownership interest of any entity described in clause (i) or this clause (ii), but shall not include any shareholder of an Owner whose shares are publicly traded. (o) "Owner whose shares are publicly traded" means an Owner: W who has filed an effective registration statement with the Securities & Exchange Commission (or its successor) with respect to the shares of any class of its voting stock or of all classes of any other form of ownership interest which includes voting rights; and -42- S.6-110 I a (ii) whose voting stock and other form of ownership interest described in clause (i) is listed for trading purposes on a securities exchange subject to the regulatory jurisdiction of the Securities & Exchange Commission (or its successor) or is publicly traded over the counter. Section 5.2. Purposes of Restrictions on Transfer. This Lease is granted to Developer solely for the purpose of development of the Leased Property and its subsequent use in accordance with the terms hereof, and not for speculation in landholding. Developer recognizes that, in view of: (a) The importance of the development of the Leased Property to the general welfare of the community; (b) The substantial financing and other public aids that have been made available by the City for the purpose of making such development possible; and (e) The fact that a transfer of the stock of the General Partner of Developer or a substantial part thereof, or any other act or transaction involving or resulting in a significant change in the ownership or distribution of such stock or with respect to the identity of the parties in control of Developer or the degree thereof, is for practical purposes, a transfer or disposition of the leasehold interest in the Leased Property then owned by Developer; the qualifications and identity of Developer and any Owner are of particular concern to the community and the City. Developer further recognizes that it is because of such qualifications and identity that the City is entering into this Lease with Developer, and, in so doing, is further willing to -43- aV r110 4 'A aooept and rely on the obligations of Developer for the faithful performance of all undertaking and oovenants by it to be performed: Section 5.3. Transfers. Developer, on behalf of itself and any and all Owners, represents and warrants that neither Developer nor any Owner has made, created or suffered any Transfers. Except as permitted pursuant to subparagraphs (a) through (i) hereof, no Transfer may be made, suffered or created by Developer or any Owner. The following Transfers shall be permitted hereunder: (a) Any Transfer by Leasehold Mortgage to an Institutional Investor or to an agent, designee or nominee of an Institutional Investor which is wholly owned or controlled by an Institutional 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 Developer's Agreement as described in subsection 6(o)(iv) of this Agreement. -44- r,. 8Vr11O re I (e) Any Transfer directly resulting from a conveyance to a Lender/Landlord of the Developer's interest provided that such Transferee, within thirty (30) days after taking possession of the Project, shall have entered into an Acceptable Developer's Agreement as described in Subsection 6(c)(iv) of this Agreement. (d) From and after the date that the Project has been in operation for three (3) years after the Opening Date, any Transfer to (i) an Acceptable Developer consented to by the City Manager and City Commission or (ii) a purchaser having a good reputation and financial resources in the opinion of the City Manager and the City Commission to own the Project (an "Acceptable Purchaser") that shall have entered into an Acceptable Developer Agreement with an Acceptable Developer. (e) Any Transfer to a joint venture, general or limited partnership, joint stock association or Massachusetts business trust, a substantial interest in which is held by Developer and the other interests in which are held by an Institutional Investor or by such other persons, firms, corporations, or other entities as to which the City Manager shall have given his approval in his sole discretion, provided that, within thirty (30) days after gaining possession of the Project, the Transferee shall have entered into an Acceptable Developer's Agreement as described in Subsection 6.1(o)(iv) of this Agreement. (f) Any Transfer to an entity which is not an Owner, all of the stock or other form of ownership interest of which is owned by an Owner. -45- SV r11 O (g) Any Transfer by a limited partner, which is consented to by the City Manager, which consent may not be unreasonably withheld. (h) Any Transfer resulting from the death or dissolution of an Owner provided that same does not result in the dissolution or termination of Developer or any General Partner of Developer. (i) Any Transfer by an Owner who is a limited partner of Developer into a charitable trust, a blind trust or for estate planning purposes for the immediate family. (j) Any Transfer pursuant to Section 718.301, Florida Statutes, from Developer to a condominium association which has as its membership, owners of the Developer Improvements or a portion thereof. 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. Shareholders. (a) With respect to any Transfer which must be approved by the City, Developer shall give or cause to be given to the City written notice (including all information necessary for the City to make an evaluation of the proposed Acceptable Developer according to the requirements of this Agreement) of any Transfer of which Developer or its officers shall have knowledge, not less than thirty (30) days prior to any such proposed Transfer and the City shall within fifteen (15) days of its receipt of such -46- o-. gar , 86-lia information, advise Developer if it shall consent to same. if the City shall not consent to a Transfer, the City Manager shall state the reasons for such disapproval in his notice to Developer withholding his consent. if the City is not required to consent to a Transfer pursuant to the terms hereof, Developer shall notify the City in writing of same within fifteen (15) days after the date of Transfer. (b) Developer shall from time to time throughout the term of this Lease as the City shall reasonably request, furnish the City with a complete statement, subscribed and sworn to by the President or Vice -President and the Secretary or Assistant Secretary of the general partner of Developer, setting forth the full names and address of holders of partnership interests in Developer, or any general partners of Developer or the stock of any general partner of Developer and the extent of their holdings, and in the event any other parties have a beneficial interest in such stock, their full names and addresses and the extent of such interest as determined or indicated by the records of Developer, by inquiry which such officers shall make of all parties who on the basis of such records own a one percent (1%) or more ownership interest in Developer or by such other knowledge or information as either of such officers shall have. Notwithstanding the foregoing, the information required by this subparagraph (b) shall not be required to be furnished with respect to the shareholders of any Owner whose shares are publicly traded. -47- 86-ilo NNW k Section 8 . S . yffnnt»a.ti nn of Certain Permitted Transfers. No Transfer of the nature described in subsections (d) and (e) of Section S.3 shall be effeotive unless and until the entity to s which such Transfer is made, by instrument in writing satisfactory to the City Manager and in a form recordable among the land records, shall, for itself and its successors and assigns, and especially for the benefit of the City, expressly assume all of the obligations of Developer under this Lease and agree to be subject to all conditions and restrictions to which Developer is subject; provided, however, that any Lender, Leasehold Mortgagee, Lender/Landlord transferee shall not be required to assume any personal liability under this Lease with respect to any matter arising prior or subsequent to the period — of such transferee's actual ownership of the leasehold estate created by this Lease (it being understood, nevertheless, that the absence of any such liability for such matters shall not impair, impede or prejudice any other right or remedy available to the City for default by Developer); and provided further, that the fact that any such transferee of, or any other successor in interest whatsoever to, the leasehold estate in the Leased t part thereof Property., or the Developer Improvements, or any , shall whatever the reason, not assume such obligations or so agree, shall not (unless and only to the extent otherwise speoifically provided in this Lease or agreed to in writing by the City) relieve or accept such transferee or successor of or from such obligations, conditions or restrictions, or deprive or limit the City of or with respect to any rights, remedies or -48- Sb'--liU ,r ,g k,x.. controls with respect to the leasehold estate in the Leased 1 _ Property or the construction of the Developer Improvements. Section 5.6. Transfers of the City's Interests. The City represents and agrees for itself, its successors and assigns, ?.: that the City has not made or created and that it will not during the term of this Lease, make or create or suffer to be made or created any total or partial sale, assignment, conveyance, mortgage, trust or power, or other transfer in any mode or farm of or with respect to the City's reversionary interest in the Leased Property and Future Leased Property or any part thereof or any interest therein or any contract or agreement to do any of the same, to any purchaser, assignee, mortgagee or trustee unless such purchaser, assignee, mortgagee or trustee shall have the authority and the ability, in the Developer's opinion, to assume the obligations of the City under this Lease and the purchaser, assignee, mortgagee or trustee shall expressly agree to assume the obligations of the City under this Lease, in a form satisfactory to Developer and any Leasehold Mortgagee. Notwithstanding any such transfer and assumption, the City shall not be released from its obligations pursuant to Sections ■ 2.8 and 3.5, which obligations are personal to the City and shall remain in effect during the term of this Lease. Section 5.7. Subletting. At the City's request, Developer shall provide to the City a copy of all Subleases for the Project. Developer shall incorporate in all Subleases provisions concerning rentals and expenses that are compatible with this Agreement. Developer shall have the right, to enter into -49- SG-iio Subleases of any part of the Leased Property or Developer Improvements at any time and from time to time during the term of this Lease with such Subtenants and upon such commercially reasonable terms and conditions as Developer shall, in its sole discretion, deem fit and proper, provided, however, that Developer shall not enter into any Sublease with any Subtenant which does not deal with Developer at arm's length without first obtaining the City's approval, which approval the City may in its sole discretion withhold. If Developer shall contemplate making any Sublease with respect to which the City's approval is required pursuant to the foregoing sentence, Developer shall submit to the City a copy of such proposed Sublease together with any information concerning the identity of the Subtenant as the City may reasonably request. Within thirty (30) days after submission of such proposed Sublease and information, the City shall notify Developer whether the proposed sublease is approved. In the event the City shall fail to so respond within thirty (30) days after submission of such Sublease and information, the same shall be conclusively deemed to have been approved by the City. ARTICLE VI MORTGAGE FINANCING,: RIGHTS OF MORTGAGEE Section 6.1. Leasehold Mortg&la (a) Notwithstanding the provisions set forth in Article V hereof regarding any Assignment of this Lease, but subject to the provisions of this Article VI, provided that an Event of Default has not occurred and is not continuing, Developer shall have the -50- 86-110 f right at any time and from time to time to encumber the leasehold estate created by this Lease and any improvements by Mortgage, a 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 securing the financing of the construction of any Developer Improvements made pursuant to the terms of this Lease or for the long-term financing or refinancing of any such Developer Improvements. In no event may the amount of such Financing or !} refinancing exceed Development Costs. Developer shall submit all documents pertaining to new mortgage loans or encumbrances on the — leasehold estate to City for its approval. City shall review and approve same within thirty (30) days of receipt if the terms are substantially consistent with customary loan documents. City, however, may not approve the loan if the terms conflict or modify this Lease or if the City's financial interest would be impaired. Developer shall deliver to City promptly after execution by Developer a true and verified copy of any Leasehold Mortgage (as f defined below), or any Financing Sublease and any amendment, 1 j modification or extension thereof, together with the name and address of the owner and holder thereof. Developer may not encumber the leasehold estate created by this Lease as security for any indebtedness of Developer with respect to any other property now or hereinafter owned by Developer. -51- 66-sso t "Institutional (b) For purposes of this Article VI: a Investor" shall mean any national bank organized under the laws ' of the United States or any commercial bank, or any savings and s loan association, savings bank, trust company or insurance company organized under the laws of the United States or any state of the United States, or any pension, retirement or welfare trust or fund supervised by a government authority of any state or the United States or any such trust or fund administered by an entity which is supervised by a governmental authority; "Leasehold Mortgage" shall mean a mortgage, deed of trust or assignment of the rents, issues and profits from the Project, '► x which constitutes a lien on the leasehold estate created by this Lease and on the fee interest of Developer in any Developer Improvements during the term of this Lease; and "Lender" shall mean an Institutional Investor who is the owner and holder of a Leasehold Mortgage, provided, however, that the City shall have a no duty or obligation to determine independently the relative i j priorities of any Leasehold Mortgages, but shall be entitled to rely absolutely upon a preliminary title report current as of the time of any determination of the priorities of such Leasehold Mortgage and prepared by a generally -recognized title insurance company doing business in Miami, Florida. (c) During the continuance of any Leasehold Mortgage until J such time as the lien of any Leasehold Mortgage has been extinguished, and if a true and verified copy of such Leasehold Mortgage shall have been delivered to the City Manager together with a written notice of the name and address of the owner and holder thereof as provided in Section 6.1(a) above: -82- 86-1l0 4- a 1 (i) The City shall not agree to any mutual termination nor accept any surrender of this Lease (except upon the expiration of the full term of this Lease) nor shall the City consent to any material amendment or modification of this Lease or waive any rights or consents 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 performance or observance of any covenant, condition or agreement of this Lease on the part of Developer to be performed or observed, the City shall have no right to terminate this Lease even though an event of default under this Lease shall have occurred and be continuing, unless and until the City Manager shall have given Lender written notice of such Event of Default and Lender shall have failed to remedy such default or to acquire Developer's leasehold estate created hereby or to commence foreclosure or other appropriate proceedings in the nature thereof, all as set forth in, and within the time specified by this Article VI. (iii) Subject to the provisions of subparagraph (iv) immediately below, Lender shall have the right, but not the obligation, at any time prior to termination of this Lease and without payment of any penalty, to pay all of the rents due hereunder, to provide any insurance, to pay any taxes and make any other payments, to make any repairs and improvements, to continue to construct and complete the Developer Improvements, and do any other act or thing required of Developer hereunder, and to do any act or thing which may be necessary and proper to e -53- S0-110 4 V be done in the performance and observance of the covenants, conditions and agreements hereof to prevent the termination of this Lease. All payments so made and all things so done and performed by Lender shall be as effective to prevent a termination of this Lease as the same would have been if made, done and performed by Developer instead of by Lender. (iv) Should any Event of Default under this Lease occur, Lender shall have thirty (30) days after receipt of notice from the City Manager setting forth the nature of such Event of Default, to remedy same and, if the default is such that possession of the Project may be reasonably necessary to remedy the default, Lender shall, within such thirty (30) day period, commence and diligently prosecute a foreclosure action or such other proceeding as may be necessary to enable Lender to obtain such possesslon, provided that (a) Lender shall have fully cured any default in the payment of any monetary obligations of Developer under this Lease within such thirty (30) day or longer period and shall continue to pay currently such monetary obligations as and when the same are due, (b) Lender shall within two (2) months of the date that it takes possession of the Leased Property enter into an agreement on terms and conditions reasonably acceptable to the City with an Acceptable Developer for the continued operation of the Project (hereinafter called "Acceptable Developer's Agreement"), and (c) Lender shall have acquired Developer's leasehold estate created hereby or commenced foreclosure or other appropriate proceedings in the nature thereof within such thirty (30) day period or prior thereto, and -54- S.6-110 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 s Event of Default shall be subject to and conditioned upon the - City Manager having first given Lender written notice of such .41 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 1► nature thereof cannot be remedied by Lender shall be deemed to be remedied if (a) within thirty (30) days after receiving written --- notice from the City Manager setting forth the nature of such Event of Default, Lender shall have acquired Developer's leasehold estate created hereby or commenced foreclosure or other appropriate proceedings in the nature thereof, (b) Lender shall i i diligently and continuously prosecute any such proceedings to i completion, (o) Lender shall have fully cured any default in the I payment of any monetary obligations of Developer under this Lease 1 i 1 which do not require possession of the Project within such sixty (60) day period and shall thereafter continue to faithfully perform all such monetary obligations which do not require a �`- possession of the Project, and (d) within two (2) months after Lender shall have gained possession of the Project, Lender shall have entered into an Acceptable Developer's Agreement. Upon the taking of possession of the Project by Lender, Lender shall -55- 86-110 4 r 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 complete construction of the Developer Improvements if Lender shall succeed to Developers estate under this Lease. Any assignee or successor in interest to a Lender that has taken possession of the Leased Property must, however, assume all of Developer's obligations hereunder (except as set forth in Section 5.3 hereof), including, but not Limited to, the construction obligation. (vi) If the Lender is prohibited by any process or injunction issued by any court or by reason of any action by any court having jurisdiction of any bankruptcy, debtor rehabilitation or insolvency proceedings involving Developer from commencing or prosecuting foreclosure or other appropriate proceedings in the nature thereof, the times specified in subparagraphs (iv) and (v) above for commencing or prosecuting such foreclosure or other proceedings shall be extended for the period of such prohibition, provided that Lender shall have fully cured any default in the payment of any monetary obligations of Developer under this Lease and shall continue to pay currently such monetary obligations as and when the same fail 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 -56- 86-110 9 0 t Rental obligation to the City shall be limited to an amount equal to the Annual Basic Rental as defined in Section 2.1. (vii) The City Manager shall mail to Lender a c 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 r City Manager to Developer hereunder shall be deemed to have been given unless and until a copy thereof has been mailed to Lender. (viii) Foreclosure of a Leasehold Mortgage or any sale thereunder, whether by judicial proceedings or by virtue of any i 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 t of or a default under this Lease. Upon such foreclosure, sale or i conveyance, the City shall recognize Lender, or any other foreclosure sale purchaser, as tenant hereunder except that all obligations on Developer herein contained shall be binding on the Lender only from and after the date that it shall take title to the Developer's leasehold estate unless otherwise provided in this Article VI; provided, that Lender or any such foreclosure sale purchaser must enter into an Acceptable Developer's } Agreement, within two (2) months of the date of such foreclosure, i 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), -57- a 86-114 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 r purchasers, in the event Lender subsequently assigns or transfers t ' its interest under this Lease after acquiring the same by foreclosure or by an acceptance of a deed in lieu of foreclosure or subsequently assigns or transfers its interest under any such new lease, and in connection with any such assignment or transfer Lender takes back a mortgage or deed of trust encumbering such leasehold interest to secure a portion of the purchase price given Leasehold Mortgage as contemplated under this Section 6.1. Lender shall be entitled to receive the benefit of this Article VI and any other provisions of this Lease intended for the benefit of the holder of a Leasehold Mortgage. Any person or entity to whom this Lease or any such new lease is assigned must either enter into or assume Lender's obligations under an Acceptable Developer's Agreement. (ix) Should the City terminate this Lease by reason of ' } any default by Developer hereunder, the City Manager shall give notice thereof to all Leasehold Mortgagees and the City Manager i j 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 161 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 i contained herein, provided, however, that the City's execution j _S8_ 86-iio and delivery of such new lease of the Project shall be made without representation or warranty of any kind or nature whatsoever, either express or implied, including without limitation, any representation or warranty regarding title to the Project or any Developer Improvements or the priority of such new ty lease (except as to actions taken by the City during the period commencing on the date of termination of this Lease and terminating on the date of such new Lease). The City's delivery of any Developer Improvements owned by Developer to Lender pursuant to such new lease shall be made without representation or warranty of any kind or nature whatsoever, either express or implied, and Lender shall take any Developer Improvements "as -is" in their then current condition (except as to any actions taken or improvements made by the City during such time as the Leased Property or Future Leased Property were not the subject of a Lease). Upon execution and delivery of such new lease, Lender at its sole cost and expense shall be responsible for taking such action as shall be necessary to cancel and discharge this Lease and to remove Developer named herein and any other occupant (other than as allowed by the City) from the Project. The City's obligation to enter into such new lease of the Leased Property with the Lender shall be conditioned upon Lender having remedied and cured all monetary defaults hereunder and having remedied and oured or has commenced and is diligently completing the cure of all non -monetary defaults of Developer susceptible to cure by any party other than by Developer. If the City receives written requests in accordance with the provisions of this Section 6.1 (ix) from more than one Leasehold Mortgagee, the City shall only be required to deliver the new lease to the Leasehold Mortgagee who is► among those Leasehold Mortgagees requesting a new lease, the holder of the most junior Leasehold Mortgage, provided that such Leasehold Mortgagee shall, not later than the execution of such new lease, either (a) pay in full the sums secured by any or all Leasehold Mortgages which are prior in lien to the Leasehold Mortgage held by such Leasehold Mortgagee, or (b) agree to reinstate the liens of any or all Leasehold Mortgages which are prior in lien to the Leasehold Mortgage held by such Leasehold Mortgagee with the same relative priority as existed prior to the termination of this Lease. If any Leasehold Mortgage having the right to a new lease pursuant to this Section 6.1 (ix) shall elect to enter into a new lease but shall fail to do so or shall fail to take the action required above, the City shall so notify all other Leasehold Mortgagees (if any) and shall afford such other Leasehold Mortgagee a period of sixty (60) days from such notice within which to elect to obtain a new lease in accordance with the provisions of this Section. Except for any liens reinstated pursuant to this Section, any new lease entered into pursuant to this section shall be prior to any mortgage or other lien, charge or encumbrance on the fee of the Leased 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 :0 SG-110 i any Leasehold Mortgage granting to the Leasehold Mortgagee the rights set forth in this Article. If such new lease is entered 1 into pursuant hereto, the Lender shall be entitled to offset from the previous rentals due the City under this Lease, the net operating profit, if any, made by the City during the period that the City shall have operated the Project. (x) City and Developer shall cooperate in including in '. this Lease by suitable amendment from time to time any provision Y i 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. (xi) All rights and benefits afforded to a Leasehold Mortgagee hereunder shall also be afforded to a party providing financing to Developer pursuant to a Financing Sublease. Section 6.2. No Waiver of Developer's Obligations or City's Sigh• Nothing contained herein or in any Leasehold Mortgage shall be deemed or construed to relieve Developer from the full and faithful observance and performance of its covenants, conditions and agreements contained herein, or from any liability for the non -observance or non-performance thereof, or to require or provide for the subordination to the lien of such Leasehold Mortgage of any estate, right, title or interest of the City in or to the Project or this Lease. i -61- 86-iio a i I ARTICLE VII $EMEDIES Section 7.1. Events of Default - Developer_. The following events are hereby defined as "Events of Developer's Default": (a) Failure - Payment of Money. Failure of Developer to pay any Rental, Additional Rental or Public Charges or any other payments of money as herein provided or required, when due and the Continuance of such failure for a period of ten (10) days after notice thereof in writing. In the event that any payment or installment of Rental is not paid to the City on the date the same becomes due and payable, Developer covenants and agrees to pay to the City interest on the amount thereof from the date such payment or installment became due and payable to the date of payment thereof, at the Default Rate. All other payments of money required to be paid to the City by the Developer under this Lease, including interest, penalties and contributions, shall be treated as Additional Rent. (b) Failure - Performance of Other Covenants, Etc. Failure of Developer to perform any of the other covenants, conditions and agreements which are to be performed by Developer in this Lease, to include completing Phase I of the Developer Improvements in a timely manner as prescribed on the Development Schedule, and the continuance of such failure for a period of 1 sixty (60) days after notice thereof in writing from the City to ! Developer (which notice shall specify the respects in which the City contends that Developer has failed to perform any such -62- SG-1l0 r. �u kp�l � y r- oovenants, conditions and agreements), unless such default was not caused or created by the Developer and cannot be cured within sixty (60) days and the Developer within said sixty (60) day period shall have commenced and thereafter shall have continued diligently to prosecute all actions necessary to cure such default, said failure shall constitute an Event of the Developer's Default. (c) Bankruptcy. etc. 1. if an order or relief shall be entered upon any petition filed by or against Developer, as debtor, seeking relief (or instituting a case) under Chapters 7, 9, 11 or 13 of the Bankruptcy Code of 1978, 11 U.S.C. (Sec. 10 et seg.) or any successor thereto; or 2. if Developer admits its inability to pay its debts, or if a receiver, trustee or other court appointee is appointed for all or a substantial part of Developer's property; or 3. if the leasehold interest of Developer is levied upon or attached by process of law; or 4. if Developer makes an assignment for the benefit of creditors or takes the benefit of any insolvency act, or if any proceedings are filed by or against Developer to declare Developer insolvent or unable to meet its debts; or 8. if a receiver or similar type of appointment or court appointee or nominee of any name or character is made for Developer or its property; or 6. if Developer shall abandon the Leased Property during the term of this Lease or any renewals or extensions thereof; or -63- aG--ilo 7. if Developer shall assign this Lease or sublet any portion of the Leased Property, except as permitted herein. Section 7.2. Remedies for Developer's Default. (a) If Developer is unable to complete Phase I of the Developer Improvements as required so as to take possession of the Future Leased Property, said property shall remain in the City's possession and may be disposed of as the City deems appropriate. (b) If after the Possession Date of the Leased Property or Future Leased Property Developer is unable to complete the Project, Developer shall, prior to default, offer to ► sell his interest in the Project to other Developers of the SEOPW, who have begun construction on the property in their possession and are not in default. (c) If the Developer is unable to sell his interest and any of the Events of Developer's Default shall occur, the City may, at its option, institute such proceedings as in its opinion are necessary to cure such defaults or to compensate the City for damages resulting from such defaults, including but not limited to the right to give to the Developer a notice of termination of this Lease. If such notice is given, except as otherwise provided in Article VI hereof, the term of this Lease shall terminate, upon the date specified in such notice from the City to Developer, as fully and completely as if that date were the date herein originally fixed for the expiration of the term of this Lease, and on the date so specified, Developer shall then quit and surrender all property in his possession to the City in -64- SG-110 1 accordance with Section 11.8. 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. Events of Default - City. (a) Events of Default. The failure of the City to perform any of the covenants, conditions and agreements of this Lease which are to be performed by the City and the continuance of such failure for a period of sixty (60) days after notice thereof in ► writing from Developer to the City (which notice shall specify the respects in which Developer contends that the City has failed _ to perform any of such covenants, conditions and agreements) and unless such default be one which cannot be cured within sixty (60) days and the City within such sixty (60) day period shall have commenced and thereafter shall continue diligently to prosecute all actions necessary to cure such defaults, such failure shall constitute an "Event of the City's Default". (b) Remedies for 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 rt i following remedies: (i) the right and option to terminate this Lease and all of its obligations hereunder by giving notice of such election to the City whereupon this Lease shall terminate as of the date of such notice; Zia SE-110 l ' 3Y; r4x� i. Y9 (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 representatives) 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. Unavoidable Delay. For the purpose of any of the provisions of this Agreement, neither the City (including the City Manager) nor Developer, as the case may be, nor any successor in interest, shall be considered in breach of or in default in any of its obligations, including but not limited to the preparation of the Leased Property or Future Leased Property for development, or the beginning and completion of construction of the Developer Improvements, or progress in respect thereto, in the event of unavoidable delay in the performance of such obligations due to strikes, lockouts, acts of God, inability to obtain labor or materials due to governmental restrictions, enemy action, civil commotion, fire, unavoidable casualty or other i similar causes beyond the reasonable control of a party (not �- including such party's insolvency of financial condition), it being the purpose and intent of this paragraph that in the event f of the occurrence of any such unavoidable delays the time or times for the performance of the covenants, provisions and 86--114 a I ilk agreements of this Lease, including but not limited to the i obligations of the City and the City Manager with respect to the preparation of the Leased Property and Future Leased Property for development or of Developer with respect to construction of r- Developer Improvements, shall be extended for the period of unavoidable delay; provided, however, that the party seeking the i benefit of the provisions of this Section shall, within thirty (30) days after such party shall have become aware of such unavoidable delay, give notice to the other party thereof, in writing of the cause or causes thereof and the time delayed. The parties hereto agree if any event shown on Exhibit F shall not ► occur at the time required for same as a result of an event of Unavoidable Delay, the Rent Commencement Date shall be postponed to a date extended by the period of such delay. Section 7.5. Obl s!ations. Rights and Remedies Cumulative. The rights and remedies of the parties to this Agreement, whether provided by law or by this Agreement, shall be cumulative, and the exercise by either party of any one or more of such remedies shall not preclude the exercise by it, at the same or different times, of any other such remedies for the same default or breach ' or of any of its remedies for any other default or breach by the other party. No waiver made by either party with respect to { performance, or manner or time thereof, of any obligation of the other party or any condition to its own obligation under this Agreement shall be considered a waiver of any rights of the party making the waiver with respect to the particular obligations of the other party or condition to its own obligation beyond those -67- S,(;-iio i expressly waived and to the extent thereof, or a waiver in any respect in regard to any other rights of the party making the waiver or in regard to any obligation of the other party. ARTICLE VIII PROTECTION AGAINST MECHANICS f LIENS AND OTHER CLAIMS INDEMNIFICATION Section 8.1. Mechanics Liens and Payments of Oblige ions. (a) Developer to Discharge Mechanics Liens. Developer shall not be given possession of the Leased Property or Future Leased Property or authorized to begin construction thereon prior to the ► recording of this Lease and prior to the respective Possession Dates so as not to subject the fee interest of the City to mechanics' liens. If any such mechanics liens shall at any time be filed against the Leased Property or Future Leased Property, Developer shall promptly take and diligently prosecute appropriate action to have the same discharged or to contest in good faith the amount or validity thereof and if unsuccessful in 1 such contest, to have the same discharged. Upon Developer's a failure so to do, the City, in addition to any other right or remedy that it may have, may take such action as may be reasonably necessary to protect its interest, and Developer shall apay any amount paid by the City in connection with such action, t and all reasonable legal and other costs and expenses incurred b 8 p Y { j the City in connection therewith (including reasonable counsel fees, court costs and other necessary disbursements). Any such amounts paid by the City and the amount of any such expenses or 21T: S.G—iia 5 •� 3 T3„eft r y ' costs incurred by the City, if not paid by Developer to the City i a within thirty (30) days after the date Developer receives written notice from the City of the amount thereof and demand for payment of the same, shall, together with interest thereon at the Default { Rate from the date of the receipt by Developer of the aforesaid written notice and demand to the date of payment thereof by Developer, be treated as Additional Rental, and shall be payable by Developer to the City not later than the next monthly installment of the Annual Basic Rental becoming due. (b) Payment of Materialmen and SuppliArn. Developer shall make, or cause to be made, prompt payment of all money due and legally owing to all persons doing any work or to subcontractors in connection with the development, construction, equipment, repair or reconstruction of any of the Developer Improvements required by this Agreement to be constructed by Developer on the Leased Property or Future 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 86-110 or occupancy of the Leased Property by such persons. Developer shall defend any and all such actions, claims, demands or suits on behalf of the City at Developer's sole cost and expense. The City shall indemnify and save harmless Developer from and against r i any and all claims or demands, suits at law, in equity or before t i... administrative tribunals, due to the negligence of the City, its agents, servants, employees, or contractors arising out of the use or occupancy of the Leased Property by such persons. The City shall defend any and all such actions claims, demands or suits on behalf of Developer at the City's sole cost and expense. E ` ARTICLE IX INSURANCE -- Section 9.1. Insurance Coverafe. Beginning on the Possession Date and during the term of this Lease, Developer at its sole cost and expense shall maintain or cause to be maintained: (a) Property Insurance. Insurance on the Developer Improvements against All Risks of physical loss or damage, including the expense of the removal of debris of such property as a result of damage by an insured peril. Coverage shall be 3 written on as broad an All Risk form as is commercially j available. The insurance shall be written on a replacement cost '! basis. If the policy or policies of insurance contain a co- 1 insurance requirement, the policy or policies shall contain an agreed amount endorsement. During the construction period, property insurance may be provided on a Completed Value Builder's -70- 86--110 Risk form. The City and Developer shall be listed as named insureds on such Builder's Risk Policy. The term "Developer Improvements", as used in this paragraph, shall be deemed to include all personal property furnished or installed on the r- premises and owned by the Developer, and the insurance herein j provided shall cover the same. The adequacy of the Insurance coverage may be reviewed periodically by the City Manager at his discretion. Any review by the City Manager shall not constitute an approval or acceptance of the amount of insurance coverage. In the event that insurance proceeds are inadequate to rebuild and restore the i f damaged Developer Improvements to substantially their previous condition before an insurable loss occurred, and the cause of the deficiency in insurance proceeds is the failure of the Developer to adequately insure the Developer Improvements as required by this Agreement, Developer must nevertheless rebuild and restore such Developer Improvements pursuant to the terms hereof and must pay the entire cost of same notwithstanding the fact that such insurance proceeds are inadequate. (b) Automobile Liability Insurance. Automobile liability insurance and equivalent policy forms covering all owned, non - owned, and hired vehicles used in connection with any work arising out of this Agreement. Such insurance shall afford protection to at least a combined single limit for bodily injury and property damage liability of $1,000,000 per occurrence. The adequacy of the automobile liability insurance coverage may be reviewed periodically by the City Manager at his discretion. Any -71- SJ(;-lla 4 3 S review by the City Manager shall not constitute an approval or acceptance of the amount of insurance coverage. (a) Liability Insurance. Comprehensive General Liability, including contractual liability, or an equivalent policy form providing liability insurance against claims for personal injury or death or property damage, occurring on or about the Leased Property, the Developer Improvements, or any elevator, escalator, or hoist thereon. Such insurance shall afford protection to at least a combined single limit for bodily injury and property damage liability of $1,000,000 per occurrence. The adequacy of the liability insurance coverage shall be reviewed periodically by the City Manager at his discretion. Any review by the City Manager shall not constitute an approval or acceptance of the amount of insurance coverage. Such liability and property damage insurance shall also be placed in effect during the period of permitted access provided in Section 3.8 herein. it is the City's intent that any liability insurance provided pursuant to this Section shall be deemed primary insurance coverage in the event of any loss arising from the premises and operations covered by this Agreement. (d) Worker's Compensation. Worker's Compensation and Employer's Liability insurance in compliance with Florida Statute 440. For work that is subcontracted, the Developer shall require the subcontractor to provide Worker's Compensation insurance for all of the subcontraotor's employees. (e) Copies. Developer shall furnish Certificates of Insurance with the City named as additional insured for the -72- SG-1l0 i 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 replacing any policies expiring during the term of this Lease shall be delivered to the City Manager at least thirty (30) days prior to the date of expiration of any policy, together with proof satisfactory to the City that all premiums have been paid. Section 9.2. Responsible Companies - Blanket Insurance Permitted. All insurance provided for in this Article IX shall be effected under valid and enforceable policies issued by insurers of recognized responsibility, which are licensed to do business in the State of Florida. All such companies must be rated at least "A" as to management, and at least "Class X" as to financial strength in the latest edition of Best's Insurance Guide, published by Alfred M. Best Co., Inc., 75 Fulton Street, New York, NY. The insurance required by this Article may be part of another policy or policies of the Developer in which other properties and locations are also covered so long as the amount of insurance available to pay losses at this location is at least the minimum required by this Section, and it cannot be reduced in � n manner b losses occurring at other properties or locations. any a Y g P P Section 9.3. Named Insureds - Notice to City of Cancellation. All policies of insurance described herein shall name Developer and the City as insureds as their respective -73- 0 i interests may appear. The polioies shall also name as insured, if required by either party or required pursuant to the terms of 3 any Leasehold Mortgage or Financing Sublease, any Leasehold I Mortgagee as the interest of any such Leasehold Mortgagee may iappear. Notwithstanding any such inclusion, the parties hereto agree that any losses under such policy shall be payable, and all i i insurance proceeds recovered thereunder shall be applied and a disbursed in accordance with the provisions of this Lease. All insurance policies shall provide that no material change, cancellation or termination shall be effective until at least thirty (30) days after receipt of written notice thereof has been 'f received by the City. Each policy shall contain an endorsement to the effect that no act or omission of the Developer shall affect the obligation of the insurer to pay the full amount of any loss sustained. Section 9.4. City_May Procure Insurance if Developer Fails to Do So . In the event Developer at any time refuses, neglects or fails to secure and maintain in full force and effect any or i j all of the insurance required pursuant to this Agreement, the City, at its option, may procure or renew such insurance, and all i amounts of money paid therefore by the City shall be treated as Additional Rental payable by Developer to the City together with interest thereon at the Default Rate from the date the same were paid by the City to the date of payment thereof by Developer. The City shall notify Developer in writing of the date, purposes and amounts of any such payments made by it, which shall be payable by Developer to the City within ten (10) days of such notification. -74- S.6-i l0 atd . W -- r� x tk 'x w� a .'4=N $ir f --' i Section 9.5. Insurance Does Not Waive Developer's i Obligations. No acceptance or approval of any insurance agreement or agreements by the City or the City Manager shall relieve or release or be construed to relieve or release Developer from any liability, duty or obligation assumed by, or imposed upon it by the provisions of this Agreement. Section 9.6. Loss or Damage Not To Terminate Rental or This Agreement. Any loss or damage by fire or other casualty, of or to any of the Developer Improvements on the Leased Propertyat 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 Developer's obligations pursuant to this Agreement. Section 9.7. Proof of Loss. Whenever any Developer Improvements, or any part thereof, constructed on the Leased Property (including any personal property furnished or installed in the premises) shall have been damaged or destroyed, Developer shall promptly make proof of loss in accordance with the terms of the insurance policies and shall proceed promptly to collect or cause to be collected, all valid claims which may have arisen against insurers or others based upon any such damage or destruction, Developer shall promptly give City written notice of such damage or destruction. Section 9.8. Property Insurance Proceeds. -75- S,G-sic aytZj .r _ I (a) Authorized Payment. Except as otherwise provided in i 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 (i) Directly to Developer, if the total recovery is equal to or less than the then fair market value of Developer's property interest except that if Developer is then in default under this Lease, such proceeds shall be paid over to City who shall apply the proceeds first to the rebuilding, replacing and repairing of the Leased Property and then to the 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 (i ) 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 or Future Leased i Property, the Leasehold Mortgagee shall serve as the Insurance i Trustee, but if there's no Leasehold Mortgage at that time, or if the Leasehold Mortgagee refuses to serve as Insurance Trustee, i the Insurance Trustee shall be such commercial bank or trust company as shall be designated by Developer and approved by the t �City Manager, which approval shall no b unreasonably e e y withheld i or delayed. j (b) Disposition of Insurance Proceeds for Reconstruction. All amounts received upon such policies shall be used, to the 1 i -78- SG-110 extent required, the reconstruction, repair or replacement of the Developer Improvements and the personal property of Developer contained therein, so that the Developer Improvements or such personal property shall be restored to a condition comparable to the condition prior to the loss or damage (hereinafter referred to as "Reconstruction Work"). From the Insurance nrnnAA4n received by the insurance Trustee, there shall be disbursed to Developer such amounts as are required for the Reconstruction Work. Developer shall submit invoices or proof of payment to the Trustee for payment or reimbursement in accordance with an agreed schedule of values approved in advance by the City Manager. Any amount remaining in the hands of the Insurance Trustee after the completion of the Reconstruction Work shall be paid to Developer. (e) Lenders and Lender/LandlordsLender/Landlords May Have Benefit of Insurance Fund for Reconstruction. In the event Developer, pursuant to any Leasehold Mortgage or Financing Sublease, shall at any time authorize the Lenders or Lender Landlords on his behalf or in his stead to enter upon the Leased Property and undertake or prosecute the reconstruction or repair of any building on the Leased Property damaged or destroyed by fire, or other insured -against hazard or peril and to have and receive for Developer or Leasehold Mortgagees' use for such purpose such insurance proceeds, then in that case said insurance proceeds shall be equally available to such Leasehold Mortgagee as to Developer as provided in subsection (b) of this Section 9.8, and it shall in like manner and to like extent at the request of any -77- SG_110 • such Leasehold Mortgagee, be applied to the reconstruction or repair of any such building so damaged or destroyed. Section 9.9. Covenant for Commencement and Completion of Reconstruction. Subject to the provisions of Section 9.1(b) and Section 9.10, Developer covenants and agrees to commence the Reconstruction Work as soon as practicable but in any event within two (2) months after the insurances proceeds in respect of the destroyed or damaged improvements or personalty have been received, and to fully complete such Reconstruction Work as expeditiously as possible consistent with the nature of the damage, but in any event within twenty-four (24) months from the start thereof; provided, that if it is not practicable to commence such Reconstruction Work within such two (2) month period, or to complete such Reconstruction Work within such twenty-four (24) month period, then such Reconstruction Work may be commenced and completed within a longer period, provided that such period shall be approved in writing by the City Manager after written request from Developer. As used in the preceding sentence, the term "available net insurance proceeds" means the sum actually paid by the insurer or insurers in respect of the claim in question, less all costs and expenses incurred by Developer or the Insurance Trustee in the collection, holding and disbursement of same, including (without limitation) reasonable attorneys' fees. Section 9.10. Developer's Rights In the Event of Uninsured Major Casualty. In the event any part of the Developer Improvements or the Leased Property is damaged or destroyed by -78- S,Gr11 v reason of any casualty which is not required to be insured against pursuant to Section 9.1 and is not in fact insured against, then at Developer's option, in lieu of rebuilding, replacing or repairing the portion of the Developer Improvements or the Leased Property so damaged or destroyed, Developer may give notice to the City, within twenty-four (24) days after the occurrence of such damage or destruction, of Developer's election to terminate this Lease as to the portion of the Developer Improvements or the Leased Property or Future Leased Property so damaged or destroyed and this Lease shall thereupon terminate as to such portion of the Leased Property or Future Leased Property and Developer shall have no further obligation hereunder with respect thereto, except that, if the City shall so request within sixty (60) days after such notice is given. Developer shall, at its expense, promptly demolish any buildings or other improvements situated on the portion of the Leased Property as to which this Lease shall have been terminated and shall clear and grade such portion of the Leased Property. The City ana Developer shall, at the request of either, execute such instruments or documents as may be reasonably necessary or desirable in order to amend this Lease to delete such portion of the Leased Property from the description of the property demised hereby, if the Developer Improvements or the Leased Property which were uninsured, or for which there were no insurance proceeds, shall be substantially damaged or destroyed on any single casualty so that the Developer Improvements or the Leased Property shall be unsuitable for restoration for Developer's -79- S,f -110 continued use and occupancy in Developer's business, then at Developer's option, in lieu of rebuilding, replacing or repairing the Developer Improvements or the Leased Property as provided in this Lease, Developer may give notice to the City, within thirty (30) days after the occurrence of such damage or destruction, of Developer's intention to terminate this Lease on any business day specified in such notice which occurs not less than forty-five (45) nor more than sixty (60) days after the date of such damage or destruction, provided that such notice shall be accompanied by a certificate of the Developer, signed by the appropriate officer or general partner, stating that in the reasonable judgment of Developer, the Developer Improvements and the Leased Property are economically unsuitable for Developer's continued use and occupancy by reason of such damage or destruction. This Lease shall thereupon terminate on such termination date, except with respect to obligations and liabilities of Developer under this Lease, actual or contingent, which have arisen on or prior to such date. Upon giving any such notice of termination of this ! Lease Developer shall, upon the City's request at Developer's expense promptly demolish any building or other remaining improvement and shall clear and grade the Leased Property. ARTICLE X CONDEMNATION Section 10.1. Fnti re Leased Property Taken by Condemnation. In the event that the whole of the Leased Property and Developer Improvements (or such portion thereof as shall, in the good faith l 1 -80- opinion of Developer, render it economically unfeasible to effect restoration thereof) shall be taken for any public use or purpose by the exercise of the power of eminent domain, or shall be conveyed by the City and Developer and individual owners of Developer Improvements or portions thereof acting jointly to avoid proceedings of such taking, the Rental and money to be treated as Additional Rental pursuant to this Agreement and the Public Charges shall be prorated and paid by the Developer to the date of such taking or conveyance, and this Lease shall terminate and become null and void as of the date of such taking or conveyance. The award or awards of damages allowed to the City or Developer or individual owners of Developer Improvements or portions thereof shall be paid as follows: First: There shall be paid all expenses if any including reasonable attorneys' fees incurred by the City and Developer and individual owners of Developer Improvements or portions thereof in such condemnation suit or conveyance (except that nothing contained in this Article shall require payment to the City of costs and expenses it may incur as the condemning authority); Second: City and Developer and individual owners of Developer Improvements or portions thereof shall be paid portions of the balance of said award or awards *� which are allocable to and represented by the value of their respective interest in the Leased Property as found by the court or jury in its condemnation award or i if no such separate awards are obtained such balance -81- S,(;—sic ti66" ra f r shall be paid to Developer and the City in the same proportion as the then Fair Market Value of each party's respective interest or estate in the Leased Property and the Developer Improvements bears to the total Fair Market Value of the interests and estates of both parties in the Leased Property and Developer Improvements within thirty (30) days of the time of the taking. Section 10.2. Partial Taking of Leased Property by Condemnation. (a) In the event that less than all of the Leased Property or Developer Improvements shall be taken for any public use or purpose by the exercise of the power of eminent domain, or shall be conveyed by the City and Developer and individual owners of Developer Improvements or portions thereof acting jointly to avoid proceedings of such taking, and Developer shall be of the good faith opinion that it is economically feasible to effect restoration thereof then this Lease and all the covenants conditions and provisions hereunder shall be and remain in full force and effect as to all of the Leased Property not so taken or conveyed (except as provided in subsection (c) of this Section 10.2 and in Section 10.3). Developer shall to the extent condemnation proceeds are made available to it pursuant to the terms hereof, remodel repair and restore the Developer Improvements so that they will be comparable to the Developer Improvements prior to the condemnation taking into consideration the fact of the condemnation; provided however that in so doing -82- f r Developer shall not be required to expend more than the amount of any such award actually received by Developer less all costs and expenses (including reasonable attorneys' fees) incurred in the i collection of same. r- X41 (b) The award or awards of damages allowed to City and Developer and individual owners of Developer Improvements or i portions thereof shall be paid to and received by the parties as follows: First: There shall be paid all expenses, if any, including any reasonable attorneys fees incurred by City and Developer and individual owners of Developer Improvements or portions thereof in such condemnation suit or conveyance; Second: There shall be paid to the City the value of the portion of the Land so taken which land shall be valued as if unimproved and unencumbered; Third: There shall be paid to the Developer the amount required to complete the remodeling and repairs to the Developer Improvements pursuant to (a) above; Fourth: City and Developer and individual owners of Developer Improvements or portions thereof shall be paid portions of the balance of said award or awards if r any which are allocable to and represented by the value of their respective interest in the Leased Property as found by the court or jury in its condemnation award, i or if no such separate awards are obtained, such balance shall be paid to Developer and the City and -83- S,G-110 r _k 3 3^. { individual owners of Developer Improvements or portions thereof in the same proportion as the then Fair Market Value of each party's respective interest or estate in the Leased Property and the Developer Improvements r- bears to the total Fair Market Value of the interests and estates of both parties in the Leased Property and Developer Improvements. Section 10.3. Adjustment of Rent Upon Partial- Taking. In the event a part of the Leased Property and the Developer Improvements thereon if any, shall be taken for any public use or purpose by the exercise of the power of eminent domain, or shall be conveyed by City and Developer and individual owners of Developer Improvements or portions thereof acting jointly to avoid proceedings of such taking then Rental and money to be treated as Additional Rental pursuant to this Agreement and the Public Charges in respect of such part of the Leased Property shall be paid by Developer to the date of such taking or conveyance and after such date the Rent for the remainder of the Leased Property shall be reduced by such an amount as may be agreed upon in writing by the parties hereto. Section 10.4. Taking for Temporary Use or of Leasehold Estate. If, by the exercise of the power of eminent domain or under threat thereof the whole or any part of the Leased Property or the Developer Improvements shall be taken for temporary use or ' the whole or any part of the leasehold estate created by this Lease shall be taken all awards or other payments shall be paid to Developer and individual owners of Developer Improvements or portions thereof alone except that: -84- SIG-iio f (i) if any portion of any such award or payment on account of a taking for temporary use is made by reason of any damage to or destruction of any portion of the Developer Improvements, such portion shall be applied to pay the cost of restoration; and (ii) if any portion of an award or payment on account of a taking for temporary use relates to a period beyond the date of expiration of the term of this Lease, such portion shall be paid to the City; and (iii) all payments of Annual Basic Rental by the Developer shall continue as if no condemnation had taken place. For the purposes of this Section 10.4, Rentals payable shall be the Average Annual Basic Rentals payable in the immediate 3 year period prior to the notice of taking by condemnation or the period of time since the Possession Dates whichever period is lesser. In the event the taking for temporary use continues for over 1 year, the Annual Basic Rental due for each consecutive year shall be increased by the percentage increase in the Consumer Price Index, or, if not available, such equivalent index. ARTICLE XI Section 11.1. Quiet Enjoyment. The City represents and warrants that Developer, upon paying the Rental pursuant to this Agreement and observing and keeping the covenants and agreements of this Agreement on its part to be kept and performed shall lawfully and quietly hold occupy and enjoy the Leased Property -88- without hindrance or molestation by the City during the term of this Agreement or by any person or persons claiming under the City. Section 11.2. Waste. Developer shall not permit commit or suffer waste or impairment of the Leased Property or the { Improvements thereon, thereof. Developer Developer or any part Section 11.3. Maintenance and Operation of Develop= Improvements. 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 first class projects in similar usage are kept f► (reasonable wear and tear expected), and in the occupancy, maintenance and operation of such Developer Improvements, and of - the Leased Property, shall comply with all laws, ordinances codes and regulations applicable thereto. Section 11.4. Ownership of Developer Improvements during Lease. Prior to the expiration or termination of this Lease, title to the Developer Improvements shall not vest in the City by reason of its ownership of fee simple title to the Leased Property, but title to such Developer Improvements shall remain - in Developer and any individual owners of the Developer Improvements or portions thereof. Section 11.5. City and Developer to Join in Certain Actions. Within ten (10) days after receipt of written request from Developer, the City shall: (a) Join Developer when required by law in any and all applications for permits, licenses or other authorizations 6 -86- �V�110 r� a �4 F r. _; 24. 1_ required by any governmental or public authority which has jurisdiction in connection with any work as may be reasonably necessary or appropriate for the construction of the Developer Improvements to be constructed by Developer on the Leased Property; and (b) Join Developer in any grants of, or grant such easements or rights with respect to vehicular access, electric, telephone, gas, water, sewer, steam and such other public utilities and facilities as may be reasonably necessary or appropriate for the construction, operation or use of the Leased Property or any Developer Improvements to be erected by Developer thereon. Developer shall pay all fees and charges for all such applications and grants. ARTICLE XII MISCELLANEOUS PROVISIONS Section 12.1. No Partnership or Joint Venture. It is mutually understood and agreed that nothing contained in this Agreement is intended or shall be construed in any manner or under any circumstances whatsoever as creating or establishing the relationship of co-partners, or creating or establishing the relationship of a joint venture between the City and Developer, or as constituting Developer as the agent or representative of the City for any purpose or in any manner whatsoever. Section 12.2. Recording. Documentary Stamps. This Agreement, or a memorandum hereof in a form mutually satisfactory to the parties, shall be recorded among the Land Records of Dade County, State of Florida and either party may cause any -87- 66-iio modification or addition to this Lease or any ancillary document relevant to this transaction to be so recorded and the cost of any such recordation, cost of any State of Florida documentary stamps which legally must be attached to any or all of said papers and the cost of the applicable Dade County and State transfer tax shall be paid in full by Developer Section 12.3. Florida and Local Laws Prevail. This Agreement shall be governed by the laws of the State of Florida. This Agreement is subject to and shall be interpreted to effectuate its compliance with the Charter of the City of Miami, the City of Miami Code and the Dade County Charter and Code. Any conflicts between this Agreement and the aforementioned Codes and Charters shall be resolved in favor of the latter. If any term covenant or condition of this Lease or the application thereof to any person or circumstances shall to any extent, be illegal, invalid, or unenforceable because of present or future laws or any rule or regulation of any governmental body or entity or becomes unenforceable because of judicial construction, the remaining terms, covenants and conditions of this Lease, or application of such term, covenant or condition to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby and each term, covenant, or condition of this Lease shall be valid and be enforced to the fullest extent permitted by law. Contemporaneously with the execution of 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 -88- SG-sso 4 the Charter of the City of Miami, the City of Miami Code and the Dade County Charter and Code. Section 12.4. Conflicts of Lnzerestia uiay tcepr�5�ntiaLiv�r� 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 or the interest of any corporation, partnership or association in which he or she is, directly or indirectly, interested. No member, official, representative or employee of the City or the City Manager shall be personally liable to Developer or any successor in interest in the event of any 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. Notice. A notice of communication under tnis 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 reoeipt requested; and (a) Developer. In the case of a notice or communication to Developer, if addressed as follows: Ted H. Weitzel Indian River Investments, II, Limited 1023 Northwest Third Avenue Miami, Florida 33136 86-110 4 (b) Developer's Records. Developer's original duplicate i books and records in auditable form as required in Section 2.5(d) i shall be kept and be available to the City during normal business hours at its principal place of business in the City of Miami. �r. (o) City Marnag=, In the case of a notice or communication to the City or the City Manager, if addressed as follows: City Manager 3500 Pan American Drive Miami, Florida 33133 or if such notice is addressed in such 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 12.5. Section 12.6. Estoppel Certificates. The City and Developer shall at any time and from time to time, within thirty (30) days after written request by the other, execute, acknowledge and deliver to the party which has requested the same or to any prospective Leasehold Mortgagee, assignee or Subtenant i } designated by Developer a certificate stating that (i) the Lease is in full force and effect and has not been modified, i ( supplemented or amended in any way, or, if there have been I modifications, the Lease is in full force and effect as modified, identifying such modification agreement, and if the Lease is not f 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 .O - S,(;-iso OEM i to be performed by the City or Developer, as the case may be, have been satisfied and, as of the date of such certificate, there are no existing defenses or offsets which the City or Developer, as the case may be, has against the enforcement of the ` Lease by the other party, or, if such conditions have not been satisfied or if there are any defenses or offsets, the certificate shall so state; and (v) the rental due and payable for the year in which such certificate is delivered has been paid in full, or, if it has not been paid, the certificate shall so state. The party to whom any such certificate shall be issued may rely on the matters therein set forth and thereafter the party issuing the same shall be estopped from denying the veracity or accuracy of the same. Any certificate required to be -� made by the City pursuant to this paragraph may be made on its behalf by the City Manager. Section 12.7. Provisions Not Merged with Deed. None of the provisions of this Agreement are intended to or shall be merged by reason of any deed U) transferring Developer's leasehold estate in the Leased Property and Developer Improvements or any part thereof from the Developer (or its successors or assigns) to the City (or its successors or assigns), or Ui) transferring title to the Leased Property or any part thereof from the City to i Developer, its successors or assigns and any such deed shall not i ?'~ be deemed to affect or impair the provisions and covenants of 3 this Agreement. i } Section 12.8. Tiles of Articles and Sections. Any titles of the several parts, Articles and Sections of this Agreement are 3 i i -91- 1 at F� yy inserted for convenience of reference only and shall be disregarded in construing or interpreting any of its provisions. Section 12.9. Got tertiary. This Agreement is executed in six (6) counterparts, each of which shall be deemed an original, and such counterparts shall constitute one and the same instrument. This Agreement shall become effective only upon f execution and delivery of this Agreement by the parties hereto and execution and delivery of all Exhibits referred to in Section 1.1. Section 12.10. Nondisturbance and Attornment. The City covenants and agrees with Developer for the benefit of any and all Subtenants or Condominium Owners occupying any part of the Leased Property or the Developer Improvements from time to time, that in the event of a termination of this Lease, the possession of each such Subtenant or Condominium Owner shall not be disturbed so long as such Subtenant shall not be in default under its Sublease or provided such Subtenant or Condominium Owner shall attorn to the City. This nondisturbance agreement shall be self -operative and no further agreement between the City and any such Subtenant or Condominium Owner shall be necessary to effect ' the same, however, the City agrees from time to time, promptly upon request of Developer or any Subtenant or Condominium Owner, it will enter into agreements with the Developer and any such Subtenant or Condominium Owner confirming such nondisturbance agreement. Any such confirmatory agreement may be made on behalf i of the City by the City Manager. In the event of a termination of this Lease, each Subtenant or Condominium Owner shall attorn -92- 86-iio to the City. Developer covenants that each Sublease to which it shall be a party shall contain a clause expressly providing that the Subtenant or Condominium Owner thereunder shall attorn to the City in the event of a termination of this Lease, but the absence of such a clause from any Sublease or shall not relieve the : Subtenant or Condominium Owner from the provisions of this Section 12.10. Section 12.11. Successors and Assigns. Except to the extent limited elsewhere in this Lease, all of the covenants conditions and obligations contained in this Lease shall be binding upon and inure to the benefit of the respective 1► sucoessors and assigns of the City and the Developer. Section 12.12. Entire Agreement. This instrument and its attachments constitute the sole and only Agreement of the parties hereto and correctly sets forth the rights, duties, and obligations of each to the other as of its date. Any prior agreements, promises, negotiations, or representations not expressly set forth in this Agreement are of no force or effect. Section 12.13. Amendments. No amendments to this Agreement shall be binding on either i party unless in writing and signed by both parties. r t M -93- SJG-1l0 I r r ARTICLE XIII Section 13.1. Panel. A panel of arbitrators (Arbitration Panel") shall be established when required by this Agreement. (i) The appointments to the panel shall be made in the following manner: (a) The City shall name one member; (b) Developer shall name one member; and (c) The aforesaid members shall promptly name a third member. (ii) Every member of the Arbitration Panel must be member of the American Institute of Real Estate Appraisers. (iii) If either party shall fail to designate a member within fifteen (15) days after a written request so to do by the other party, then such other party may request the President of the Florida Chapter of the American Arbitration Association to designate a member, who when so designated shall act in the same manner as if he had been the member designated by the party so i failing to designate an arbitrator. If the two members are unable to agree upon a third member within ten (10) days from the last date of designation, such third member shall be designated by the President of the Florida Chapter of the American Arbitration Association, upon the request of either of the two 3 members. i Section 13.2. Actions. Hearings and Decisions. All actions, hearings and decisions of the Arbitration Panel shall be -94- SG-110 • L�1f C" P 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 Agreement, the Arbitration shall be conducted in accordance with the Real Estate Valuation Rules of the American Arbitration Association. In determining any matter before them, the Arbitration Panel shall apply the terms of this Agreement, and shall not have the power to vary, modify or reform any terms or provisions of the Agreement in any respect. The Arbitration Panel shall afford a hearing to the City and to the Developer and the right to submit evidence with the privilege of cross-examination on the question at issue. All arbitration hearings shall be held at a place designated by the Arbitration Panel in Dade County, Florida. A hearing shall be commenced within sixty (60) days following the selection of the last of the three arbitrators. A court reporter shall make a transcript of the hearing. The parties and the Arbitration Panel shall use their best efforts to conclude the hearing within ten days. The parties shall be entitled to such pre-trial discovery as they may Agree, or as determined by the Arbitration Panel. The Arbitration Panel shall have the right to question witnesses at the hearing, but not to call witnesses. The Arbitration Panel may grant continuances for j 1 good oause or with the agreement of both parties. The Arbitration Panel may render a decision at the close of the hearing, or may request briefs on any or all issues. Any and all -95- ,2 f. ' 3c �s w � ' L $.. such briefs, including reply briefs, shall be filed with the terms and on the schedule set by the Arbitration Panel, but in any event no later than forty-five (45) days following the commencement of the hearing. The Arbitration Panel shall render a determination within sixty (60) days from the conclusion of the hearing. If no determination is rendered within such time, unless the parties agree otherwise, a new Arbitration Panel shall be selected as described above, but the new Arbitration Panel shall render a determination solely upon review of the record of the hearing without a further hearing, The Arbitration Panel selected hereunder shall agree to observe the Code of Ethics for Arbitrators in Commercial Disputes promulgated by the American Arbitration Association and the American Bar Association, or any successor code. The decision of a majority with respect to any matter referred to it under this Lease shall be final, binding and conclusive on the City and Developer and enforceable in any court of competent jurisdiction. Together with the determination, the Arbitration Panel shall provide a written explanation of the basis for the determination. Each party shall pay the fees and expenses of the member of the Arbitration Panel designated by such party, such party's counsel and witness fees, and one-half (1/2) of all expenses of the third member of the Arbitration Panel. �-- IN WITNESS WHEREOF, Indian River Investments of Miami, Inc., 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 SG_110 _ kw a. , �j > i A{ 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. ATTEST: INDIAN RIVER INVESTMENTS OF MIAMI, INC. By Corporate Secretary (Title) (Seal) CITY OF MIAMI, a municipal Corporation of the State of ATTEST: Florida By MATTY HIRAI City Clerk APPROVED AS TO FORM AND CORRECTNESS: LUCIA A. DOUGHERTY City Attorney LaX/RNS/wnn/nb/POO1 CESAR H. ODIO City Manager APPROVED AS TO INSURANCE REQUIREMENTS Division of Risk Management I Fad En IiT 1 114 i d 1-0 t llr�— fill, zf lip it 1.1 Exhibit A I. ....... M. 71r --------- ------------------ ----------------- ------- --------------------------- - ;.7w c#A3ir w:-Oilr vgawsr? ect INC .... v I A.Vj. An ST z POINCIANA 7 PRELIMINARY SITE PLAN VILLAGE f. < fTt LA A! Je mwm�- wl'.,, N AUTO ENTRY r GROUND FLOOR PLAT: 2 ND FLOOR PLAN CROSS SECTION w � WA& A -4zi i ry 7 -F-4 F g I Nw 2,0 AVE ElIVAnON OELEVATION & CROSS SECTION 1 6-1 POINCIANA VILLAGE I . I EXHIBIT C LEGAL DESCRIPTION Miami A. L. Knowlton B-41, Block 46, Lots 1-5; 16-20 and East 20' of Lot 6; and, Geo. C. Bolles Sub (61-16), East 20' of Lots 1, 7 & 8. *86 - 1 10 A EXHIBIT E List of Approved Concept Plans POINCIANA VILLAGE DESIGN CONCEPT 1. Narrative Description U The overall design concept for the Poinciana Village development is the creation of an urban neighborhood which is integrated into the fabric of the city yet retains the scale, architectural character and ambiance of a small village. This concept allows the development to be integrated within the larger conceptual framework of the Park West Community while retaining its own unique identity. The physical plan resulting from this concept is based on creating a predominantly low-rise urban character. over 50% of the total 152 dwelling units are in buildings of two and three stories. These low-rise buildings are arranged around the perimeter of the site to create a continuous pedestrian scaled streetscape. The interior of the block is designed as a landscaped open space amenity covering thW parking areas. Two story buildings within this interior courtyard provide further definition of this space. Residents of these buildings will enjoy an intimate urban likestyle. Each residence features windows, decks or terraces on both the street and courtyard sides, providing for through - ventilation and two sun light exposures. Access to individual residences is clustered so that only 6 units share a common stair, which provides direct access to parking at ground level. This arrangement provides ease of access and maximizes the useable window areas facing the courtyard by eliminating long unbroken exterior corridors. A single tall building of 10 floors is designed at the northwest corner of the block, where it will not block the southern exposure of the lower units, and where it is immediately accessible from the main entrance to the development on N.W. 8th Street. From this location residents can enjoy expansive views eastward toward downtown Miami and Biscayne Bay. In addition to the interior landscaped open space, the development includes several other amenity features. Along N.W. 2nd Avenue a continuous covered pedestrian arcade is designed to provide protection from sun and rain. At the northeast corner of the block a public plaza is designed to provide the major "street address" for the project and allow b86-iIQ A EXM BIT r• direct access toward the ninth street mall. This plaza will be landscaped with Royal Poinciana trees creating the name and identity for the Village. Along 7th Street, which will be closed to automobile traffic, the continuous residential streetscape is broken and a series of landscaped terraces, stairs and ramps will connect the street with the interior landscaped courtyard, providing residents with a direct pedestrian link to the Overtown Metrorail Station. The architectural style designed for Poinciana Village is a blend of Bermuda and Caribbean styles designed in crisp clean stucco with characteristic sloped tile roofs, Bahama shutters and horizontal trim bands. The emphasis is on careful modulation of surface planes to achieve a lively scale and richness appropriate to the "urban village" concept. Selection of masonry and stucco construction minimizes long-term maintenance problems that can result from use of wood or metal railings, balconies etc., and ensures that the development will retain the crisp "like -new" appearance. The architectural design of the interiors follows this same clean, crisp design vocabulary. The majority of units feature an "L" shaped living -dining area which opens onto a deck. This offers maximum flexibility in furniture arrangements and provides a spacious feeling inside the residence. The kitchens feature built-in laundry hook-ups and flexibility for the resident to create a laundry utility area or a breakfast area within the kitchen. Bedrooms are arranged to provide the maximum size rooms possible. Master bedrooms feature walk-in closets with adjoining bath, while second bedrooms adjacent to the living room offer the option to be used as a den/guest bedroom. In addition to closet and storage space within the unit itself, additional general storage rooms for bulky items will be provided for each residence at ground level, adjacent to the parking area. 2. Site Plan (See Exhibit B) 3. Elevation & Cross Section (See Exhibit B) x EWIT r POINCIANA VILLAGE CPM SCHEDULE PERIOD ACTION P-0 Take possession of East one-half Block 46. P-1 Commence construction 9 units (section # 1) P-90 Submit plans and specs to City Building & zoning Department for permit. 12 units (sec. # 2) P-162 Submit plans and specs to City Building & zoning Depatment for permit. 10 units (sec. # 3) P-180 i Commence construction 12 units (sec.#2) P-181 Initiate closings/transfer of unit title to purchasers. 9 units (sec# 1) P-260 Submit plans and specs to City Building & zoning Department for permit. 8units (sec.# 4) P-300 Commence construction 10 units (sec.# 3) P-360 Submit plans and specs to City Building & zoning Department for permit. 16 units (sec.# 5) P-361 Initiate closings / transfer of unit title to purchasers. 12 units (sec.# 2) N-40U Commence construction 8 units (sec.# 4) P-450 Submit plans and specs to City Building & zoning Department for permit. 12 units (sec.# 6) P-480 Initiate closings / transfer of unit title to purchasers. 10 units (sec.# 3) P-500 Commence construction 16 units (sec.# 5) P-530 Submit plans and specs to City Building & zoning Department for permit. 72 units (sec.# 7) w86-110 CPM SCHEDULE - CONT. PERIOD ACTION P-580 Initiate closings / transfer of unit title to purchasers. 8 units (sec.# 4) P-600 Commence construction. 12 units (sec.# 6) P-650 Commence construction. 72 units Tower (sec.# 7) P-700 Initiate closings / transfer of unit title to purchasers. 16 units (sec.# 5) P-750 Submit plans and specs to City Building & zoning Department for permit. 16 units (sec.# 8) P-800 Initiate closings / transfer of unit title to purchasers. 12 units (sec.# 6) P-900 Commence construction. 16 units (sec.# 8) P-1000 Initiate closings / transfer of unit title to purchasers. 72 units (sec.# 7) P-1100 Initiate closings / transfer of unit title to purchasers. 16 units (sec.# 8) Please Note :If our application for an Urban Development Action Grant is successful, it will be necessary to restructure this CPM Schedule to facilitate the special requirements of the UDAG. o. 86- 1 !U Exhibit G FTMINORITY PARTICIPATION AGREEMENT This Minority Participation Agreement ("this Agreement") made this day of , 1986, by and between the City i of Miami, a municipal corporation of the State of Florida ("the City") acting by and through the City Manager ("the City Manager") and Indian River Investments of Miami, Inc., ("Developer"). RECITAL WHEREAS, by authority of the City of Miami Charter, the City on July 31, 1984 authorized the publication of a Request for Proposals (RFP) for the Unified Development Project to be known as Southeast Overtown/Park West Redevelopment Project Phase I Development; and WHEREAS, Developer in response to said RFP submitted a proposal to develop a residential project to be known as "Poinciana Village" ("the Project") on the land owned in fee simple by the City Located between Northwest 2nd Avenue, Northwest 3rd Avenue, Northwest 7th Street, and Northwest Sth Street, in the City of Miami, County of Dade, State of Florida, which is collectively referred to herein as Block 46; 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 46 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 i 86-1 jo 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 Participation Agreement, 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 City Manager" has the meaning ascribed to it in the opening paragraph of this Agreement. "Construction Contracts" means those certain agreements between the 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 Development or departmental staff. "Developer" has the meaning ascribed to it in the opening paragraph of this Agreement. "Developer Improvements" has the meaning ascribed to it in the Statement of Background and Purpose in the Lease. "Minority" means the following persons as defined in the following definitions as approved by U.S. Department of Housing and -2- R f j I i Qz - - SS_--. 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) . "Minority Business Enterprise" means a corporation, partnership, individual, sole proprietorship, joint stock company, joint venture or other legal entity which is at least 51% owned by a minority or at least 51 % of the stock outstanding is individually or collectively owned by a Minority. "Overtown Jobs Program ("OJP")" means the City funded job development program or program staff. "Project" has the meaning ascribed to it in the Recital. "Section" "subsection" " aragrd h" , . p P "subparagraph", "clause", or "subclause" followed by a number or letter means the section, subsection, paragraph, subparagraphs, clause or subclause of this Agreement so designated. Section 1.2. Terms in the Lease. All other capitalized terms shall have the meanings ascribed to them in the Lease. ARTICLE II EQUITY PARTICIPATION Section 2.1. Goal. Developer agrees to afford property owners of the development site, Block 46, the opportunity to join the development team as an equity participant in exchange for a financial equity contribution. - 3- IA86-110 Section 2.2. Developer Obligation. The Developer shall at a minimum correspond with property owner in writing and if necessary personally contact property owners to inform them of the Project's investment opportunities. ARTICLE III CONSTRUCTION CONTRACTS Section 3.1. General Contractor. As General Contractor for the Project Developer shall engage the joint venture of Je n-Bar Construction Company and Christian Development, Inc. (a one - hundred percent (100%) Black owned company). Section 3.2. Goals. Developer agrees to exert diligent, good faith efforts to award fifty-seven percent (57%) of the total contract price (without duplication) of all construction contracts to Minority Business Enterprises, as follows: a. Twenty-five percent (25%) to Black contractors. b. Twenty -Five percent (25%) to Hispanic contractors. C. Seven per cent (7%) to female contractors. Section 3.3. Developer's Obligation. The Developer's diligent, good faith efforts shall include, but not be limited to the following: a. Designating specific construction trades for competitive bidding among minority contractors. The lowest qualified bidder shall be awarded subcontract as the case may be. b. Encouraging joint ventures between minority contractors and non -minority contractors. - 4- b86-i iIt c. To the extent feasible, providing for small subcontracting packages in an effort to obtain bids from qualified minority business enterprises. d. Scheduling 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, 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 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 necessary. 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 Exhibits A and B respectively. k. Assisting the City, minority contractors organizations and financial institutions in establishing loan guaranty program to provide experienced, but under capitalized minority contractors with venture capital. -5- U*86-110 ?ON Developer agrees that prior to the deadline for receiving and opening the bids, cost estimates for the Project shall be submitted to the City Attorney's Office. The City Attorney or her designee and a representative from the Department shall witness the bid openings. It is understood that the City will not transfer possession of the Leased Property or Future Leased Property to Developer until the subcontractors for the Project have been selected and Developer has clearly demonstrated that diligent, good faith efforts were put forth to meet the goals established for minority contractors' participation in the Project. ARTICLE IV CONSTRUCTION HIRING Section 4.1. Goal. Fifty percent (50%) of all construction jobs are to be filled by Blacks. Developer agrees that where practical and with the assistance of the OJP, Developer shall put forth diligent, good faith efforts to fill such construction jobs with City of Miami residents before extending the opportunity to Dade County residents. Section 4.2. Developer's Obligation. The Developer's diligent, good faith efforts shall include, but not be limited to the following: a. Utilizing the OJP as the central screening and referral source for construction employment. After the subcontracts are awarded, Developer shall inform the OJP of the number of laborers needed for each construction trade at least ten (10) days in advance of the work commencement date for said laborers a copy of the Job Order Form is attached as Exhibit C. -6 - %,86-1 io b. In the event laborers are to be replaced during the course of construction, notifying the OJP for assistance in identifying the replacements. The OJP shall make its referral to Developer within three (3) working days. The construction hiring goal is not cumulative therefore regardless of the turnover rate, the hiring goal shall remain constant throughout the construction of the Project. c. To the extent feasible, assisting laborers in upgrading their skills. ARTICLE V PROFESSIONAL SERVICE CONTRACTS Section 5.1. Developer agrees to use diligent, good faith efforts to hire consultants and professional service firms, that are either minority owned or who have entered into subcontracts with minority owned firms in connection with the development of the Project. Developer has engaged the services of the following minority firms for this Project: a. M.P.S. and Associates, Inc. of Miami, has been retained as legal representatives for the project as well as urban development consultants. M.P.S. and Associates, Inc. is a 100% Slack owned firm. b. Applied Development Resources, Inc. of Miami, has been retained as project development consultants and financial advisors. Applied Development Resource, Inc. is a 50% Latin owned firm. Section 5.2. Developer's Obligation. In pursuit of the goal set forth in Section 5.1 Developer shall, but is not limited to: a. Advertising for consultants and professional service firms in newspapers with extensive circulation in minority communities. -7 - ��b-11Q b. Encourage joint ventures between minority and non -minority consultants and firms. ARTICLE VI MANAGEMENT AND MAINTENANCE OPERATIONS Section 6.1. Goal. Developer shall make diligent, good faith efforts to hire a 100% Black staff for the Project's management and maintenance operation. This goal is specifically designed to increase the number of skilled and semi -skilled employment positions available to Miami's Black community. Section 6.2. Developer's Obligation. The Developer's diligent, good faith efforts shall include but be limited to: a. Advertising in the local minority media. b. Notifying employment agencies throughout Dade County of the job opportunities. C. Utilizing the OJP as the central screening and referral source. ARTICLE VII MONITORING Section 7.1. Construction Contracts. The Department shall T 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 Exhibit D is the form to be used during the monitoring visit. Section 7.2. Construction Hiring. The OJP shall visit the Project site monthly to review Developer's progress relative to meeting the construction hiring goals. The OJP shall have access to all employment records relative to the laborers on the - 8- b,86-II() Project. Attached hereto as Exhibit E is the form to be used during the monitoring visit. Section 7.3. Developer Acknowledgment. The Developer or his designee shall be required to sign the monitoring forms, i 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. If the disputed findings are of such magnitude as to suggest that the Developer is not exerting diligent, good faith efforts in meeting the minority participation goals and if such dispute cannot be resolved by the parties to this Agreement, then the dispute shall be resolved by an Arbitrator as set forth in Article X of this Agreement. ARTICLE VIII MINORITY COMMITTEE On or before 120 days following execution of the Lease Agreement, Developer and City will establish an ad hoc minority advisory and assistance committee ("Minority Committee") consisting of 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; -9 - 086-11() (b) assist Developer in communicating information to the Minority community concerning 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 f participation program. The Minority Committee shall meet at the City Administration Building located at 275 Northwest 2nd Street. Developer will maintain minutes of the Committee's meetings at its field office in the City of Miami to be available for inspection by the City and the members of the Committee upon reasonable notice. ARTICLE IX MISCELLANEOUS PROVISIONS Section 9.1. Florida and Local T4aws Prevail. This Agreement shall be governed by the laws of the State of Florida. Section 9.2. Conflicts of Interest; City Representatives Not Individually Liable. No member, official, representative, or employee of the City or the City Manager shall have any personal interest, direct or indirect, in this Agreement, nor shall any such member, official, representative or employee participate in any decision relating to this Agreement which affects his or her personal interest of any corporation, partnership or association in which he 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. -10- Section 9.3. Notice. A notice of communication under this Agreement by either the City or the City Manager, on the one hand, to Developer, or, on the other hand, by Developer to the City or the City Manager shall be sufficiently given or delivered if dispatched by registered or certified 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: Ted Weitzel Indian River Investments, Inc. 1023 N.W. Third Avenue Miami, Florida 33136 b. City Manager. In the case of a notice or communication to the City of the City Manager, if addressed as follows: City of Miami, City Manager 3500 Pan American Drive 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 9.3. Section 9.4. Titles of Articles and Section. Any titles of the several parts, Articles and Sections of this Agreement are inserted for convenience of reference only and shall be disregarded in construing or interpreting any of its provisions. Section 9.5. Successors and Assigns. Except to the extent limited elsewhere in this Lease, all of the covenants, conditions and obligations contained in this Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the City and the Developer. -11- 0. 8 6 - 1 1 () �A't Section 9.6. Records. Developer shall maintain at its field office in the City of Miami records to enable the City to monitor Developer's performance under this Agreement and will permit the City to inspect such records upon reasonable notice. Section 9.7. Estoppel Certificates. The City and Developer shall at any time and from time to time, within thirty (30) days after written request by the other, execute, acknowledge and deliver to the other party which has requested the same or designated assignees by Developer, a certificate stating (i) this Agreement is in full force and effect and has not been modified or amended in any way, or, if there have been modifications, identifying such modification agreement, and if this Agreement is not in full force and effect, the certificate shall so state; (ii) this Agreement as modified represents the entire agreement between the parties, or, if it does not, the certificate should so state; (iii) the dates on which this Agreement took effect and if applicable, terminated;. (iv) all conditions under this Agreement by the City or Developer, as the case may be, have been satisfied and, as of the date of such certificate, there are no defaults by the City or the Developer, as the case may be or if such conditions have not been satisfied or if a party is in default, the certificate should so state. The party to whom any such certificate shall be issued may rely on the matters therein set forth and thereafter the party issuing the same shall be stopped from denying the 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. -12- 686`110 AIN Section 9.8. Entire Agreement. This instrument and its attachments constitute the sole and only Agreement of the parties hereto and correctly sets forth the rights, duties, and obligations of each to the other as of its date. Any prior agreements, promises, negotiations, or representations not expressly set forth in this Agreement are of no force or effect. Section 9.9. Amendments. No amendments to this Agreement shall be binding on either party unless in writing and signed by both parties. ARTICLE X DISPUTES Section 10.1. Deve.loper's.Default. Failure of Developer to perform obligations set forth herein and the continuance of such failure for a period of ten (10) days after notice thereof in writing from the City to Developer (which notice shall specify the respects in which the City contents that Developer has failed to perform any such obligations), unless such default was not caused or created by action or in action of the Developer and cannot be cured within ten (10) days. Shall constitute a default under this Agreement. Section 10.2. Remedies for Developer's Default. If a default should occur Developer shall be assessed five hundred dollars ($500) a day from the date the notice of default was received by Developer until the default is cured. -13- I sk86 - I 1 0 ARTICLE XI If a dispute shall arise between the City and the Developer under this Agreement including, but not limited to, whether or not the Developer has made diligent, good faith efforts to meet the goals set forth herein, such dispute shall be resolved by a professional Arbitrator. The Arbitration shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association. If the Arbitrator shall determine that Developer has failed to 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 10.2 of this Agreement. Said amount shall be paid to the City as Additional Rental. The Arbitrator may award the costs of the arbitration, including reasonable attorney fees, against the unsuccessful party to the arbitration. An Arbitrator's decision shall be final and binding upon the parties and enforceable in a court of competent jurisdiction. The decision of the Arbitrator in a proceeding brought under this provision shall not prevent the City from bringing further proceedings under this provision arising from a continuing or different failure by Developer to use diligent, good faith efforts to achieve the goals set forth in Section 2.1; provided, however, the Arbitrator shall not make more than one award under this provision for the Developer's failure to use diligent good faith efforts arising from a particular set of facts. -14- 986-1 10 c i` EXHTRTT n IN WITNESS WHEREOF, Indian River Investments, Inc., has caused this Minority Participation Agreement to be signed in its name by its President and its corporate seal to be hereunto affixed, duly attested by its Assistant Secretary, and the City Commission of Miami has caused this Minority Participation Agreement to be signed by Cesar H. Odio, the City Manager, and duly attested to by Matty Hirai, the City Clerk, on the day and year first hereinabove written. ATTEST: [Corporate Seal] INDIAN RIVER INVESTMENTS, INC. BY: TED WEITZEL, President ATTEST: THE CITY OF MIAMI, A MUNICIPAL CORPORATION OF THE STATE OF FLORIDA By: HIBIT A 'X�H SUBCONTRACTOR CERTIFICATION FORM' Name of Bidder Principal Address City. State Zip License M Telephone ( ) Corporation ( ) Partnership ( ) Indivisual (') Joint Venture List of Corporate Officers, Title Race, and % of Ownership NAME TITLE RACE 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 1985 1984 -- Jobs Completed in Past 12 months: Project Jame Architect General Contractor 1. 2. 3. 4. Have you ever been certified by Dade County,DOT, or any other agency as a MBE ? When If yes what agency. Key personnel on the job site: Title 86-� !Q A ' y F •Kfi t# i,� i A __ N VERIFICATION FORM EX�H,�IBIT $ DRAFT 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. Name in which license was obtained. 10. Legal Structure ( ) Proprietorship ( ) Partnership ( )Other ( ) Corporation ( ) Limited Partnership 11. Names of Partners, if applicable 12. List of current Board Directors and ethnicity, if applicable. 13. Name(s) of persons authorized to conduct business for company. 14. Percentage of ownership, and ethnicity. 15. Copy of Articles of Corporation and By Laws. 16. Notarized statement of ownership 17. Copy of Dade County Certification, if applicable. 18. Amount of this contract. 86-110 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 job (s)? Yes No If yes, please attach an itemized list of tools required for each position. 15. Could a person with limited English speaking skills perform this job? Yes No 16. Is public transportation easily accessible? Yes No --- 17. Does the job require shift work or other than traditional hours? Yes No (If yes, please clarify — -- - f Rk 'i i A� ^ For the Month of: MONTHLY HIRING SUMMARY General Contractor: Sub Contractor: Developer: List all the construction personnel in the firm of that are covered under the Hiring 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. POSITION TITLE COMPANY EMPLOYEES ETHNICITY * (B/L/F/0) TOTAL NEW HIRES Authorized Signature Title Date * B - Black, L - Latin, F - Female, 0 - Others. Please return this form to Overtown Jobs Program 1600 N.W. 3rd Avenue Miami, FL 33136 FORM 1 s86`�lv v I "1 CITY OF MIAMI OVERTOWN JOBS PROGRAM JOB ORDER FORM EXHT C 1. Developer 2. Phone 3. Date 4. Project Title 5. Project location 6. Sub�Contractor/Project Supervisor 7. Position Title 8. Number of Openings 9. Beginning Date 10. Ending Date 1. Work Days 12. Hours '3. Will union membership be required? Yes No If yes, which union and local 0 4. 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 necessary) r• •a Y� ,n a4 } A 34.�.,� Fez fp,�J P� :z c r86- 1 it MINORITY SUBCONTRACTOR MONITORING FORM vl' ;1A ,jk* Name %0 General Contractor: Name of Project: Address or Block Number of Project: Name of Sub Contractor: Address: Phone Number: On Site Contact Person: Owners Name(Sub-Contractor,) Verified as Minority Company yes No Ethnicity of Company Black Date Job Begins Contractor Speciality: Hispanic Female Number Of Jobs Created: Date of Site Visit I Estimated Completion Date Change in ownership ■■■■■■■■■■■■■■■■■ # Minorities Employed % of work completed ■■■■■■■■■■■■■■■■■ Miscellaneous Notes AUTHORIZED SIGNATURE Signature of Developer D86-1I ETHNICITY * (B/L/F/0) E"IT E For the Month of: MONTHLY HIRING SUMMARY General Contractor: Sub Contractor: Developer: _ List all the construction personnel in the irm of that are covered under the Hiring Agreement with the y Please prove a ine names aRrethnicity of all company personnel and ethnicity of ..I aw'hires: CO'' V ( EMPLOYEES E' I 'ITY TOTAL POSITION TITLE * ILIF/O) _ NEW HIRES Authorized Signature * B - B1 ack,, ,L - Please return th