HomeMy WebLinkAboutR-85-0921s
is
J-85- 928
9/11/85�,-�
RESOLUTION NO.
A RESOLUTION AUTHORIZTNG THE CTTY MANAGER TO
EXECUTE AN AMENDED AND RESTAT ED LEASE
AGREEMENT, IN SUBSTANTIALLY '"HE FORM
ATTACHED, BETWEEN 'PHE CTTY AND BAYSTDF
CENTER LIMITED PARTNERSHIP FOR THE BAYSTDE
RETATL PARCEL, TNCORPORATTNG REQUTREMENTS FOR
CONSTRUCTTON FINANCTNG AND TNCORPORATING ALL
DOCUMENTS. AND FURTHER, AUTHORIZING THE CTTY
MANAGER TO EXECUTE A MEMORANDUM OF LEASE, IN
SUBSTANTIALLY THE FORM ATTACHED, AS REQUIRED
FOR CLOSING,.
WHEREAS, on January 14, 1985 the City and Bayside Center
Limited Partnership entered into a Ground Lease Agreement whereby
Bayside will construct, operate and maintain a Specialty Center
on a portion of Bayfront Park; and
WHEREAS, in order to acquire construction financing, Rayside
Center. Limited Partnership has requested the Agreement be amended
and restated as set forth therein.
NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY
OF MIAMI, FLORIDA:
Section 1. The City Manager is hereby authorized to
execute, in substantially the form attached, an Amended and
Restated Lease Agreement between the City and Bayside Center
Limited Partnership for the Bayside retail parcel incorporating
requirements for construction financing and, further,
incorporating all documents required for closing.
Section 2. The City Manager is hereby authorized to
execute, in substantially the form attached, a Memorandum of
Lease Agreement as required for closing.
PASSED AND ADOPTED this 12th day of SEPTEMBER
1985.
MAURICE A. FERRE
MAURICE A. FERRE, Mayor
CITY COMMISSION
MEETING pg
LONNo. ��
LUTI
REMARKS.
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PREPARED AND APPROVED BY:
G. MI IAM MAER
Assistant City Attorney
APPROVED AS -TO FORM AND CORRECTNESS:
LUCIA A. D UGHERTY
City Attorney
GMM/wpc/ab/B094
85-9ti1.
-2-
MEMORANDUM OF LEASE
RETAIL PARCEL LEASE]
THIS SHORT -FORM LEASE AGREEMENT (the "Lease") is made and
entered into this day of September, 1985, by and between THE
CITY OF MIAMI, a municipal corporation oL the State of Florida
(the "Lessor"), and BAYSIDE CENTER LIMITED PARTNERSHIP, a
Maryland limited partnership (the "Lessee").
W I T N E S S E T H:
That for and in consideration of the covenants herein con-
tained on the part of the parties hereto observed and performed,
and particularly the covenants on the part of the Lessee to pay
the rents herein reserved and specified, she parties hereto do
hereby enter into this Lease, and the Lessor does hereby rent,
let, lease and demise to the Lessee all those certain tracts or
parcels of land lying and being in the County of Dade, State of
Florida, more particularly described as follows (the "Land");
See Schedule "A" attached hereto
and by this reference made a part hereof.
together with the buildings and all other improvements presently
located on the Land (the "Demised Premises");
I
To have and to hold the Demised Premises during the initial
term and the extension periods hereinafter described;
Together with all and singular of the appurtenances, rights,
interests, easements, and privileges in anywise appertaining
thereto;
'+
TERM AND DURATION
A. This Lease shall be for a term of forty-five (45)
years, commencing on the first day of the month next following
the Possession Date (as said term is defined in the full Amended
and Restated Lease Agreement between Lessor and Lessee described
below).
B. Lessee is hereby given the option to extend the term of
this Lease for up to two (2) additional terms (each called a
"Renewal Term") of fifteen (15) years each by giving written
notification to Lessor not less than six (G) months before the
date on which such Renewal Term is to commence.
THIS INSTRUMENT IS A SHORT -FORM OF THE FULL AMENDED AND RE-
STATED LEASE AGREEMENT DATED THE DAY OF SEPTEMBER, 1985
BETWEEN LESSOR AND LESSEE, WHICH IS HEREBY INCORPORATED BY
REFERENCE AS IF FULLY SET FORTH HEREIN. IN THE EVENT OF ANY
CONFLICT BETWEEN SAID FULL LEASE AND THE BALANCE OF. THIS
MEMORANDUM, SAID FULL LEASE SHALL GOVERN. REFERENCE SHOULD BE
MADE TO THE FULL LEASE WHICH FURTHER DEFINES THE RIGHTS AND OBLI-
GATIONS OF THE PARTIES.
AS MORE FULLY SET FORTH IN THE LEASE, LESSOR HAS GRANTED TO
LESSEE CERTAIN EASEMENTS OVER THE PROPERTY DESCRIBED IN SCHEDULE
"B" ATTACHED HERETO AND ,'MADE A PART HEREOF.
AS MORE FULLY SET FORTH IN THE LEASE, PRIOR TO THE EXPIRA-
�ION OR TERMINATION OF THE LEASE, TITLE TO THE BUILDINGS AND
This instrument prepared by Steven E. Goldman, Esq. of
��.N OFFICES 'REENBERG. TRAURIG, ASKE vv MGFFMAN LIPOF F, ROSEN S OuENTEL. P A.
'`�� GR COED CCNCCuRS 1401 6RICKELL AVENUE MIAMI. FLJRIOA 33131 TELEPHONE (305) 579.0500
t IMPROVEMENTS CONSTRUCTED UPON THE LAND BY LESSEE SHALL NOT VEST
IN LESSOR BY REASON OF ITS OWNERSHIP OF FEE SIMPLE TITLE TO IHE
LAND, BUT TITLE TO SAID BUILDINGS AND IMPROVEMENTS SHALL REMAIN
IN LESSEE. IN ADDITION, IF THE LEASE SHALL TERMINATE PRIOR TO
THE EXPIRATION OF THE TERM THEREOF, AND IF, AT THAT TIME, ANY
LEASEHOLD MORTGAGEE (AS DEFINED IN THE LEASE), SHALL EXERCISE ITS
OPTION TO OBTAIN A NEW LEASE FOR THE REMAINDER OF THE TERM OF
LEASE, TITLE TO SAID BUILDINGS AND :MPROVEMENTS SHALL AUTO-
MATICALLY PASS TO, VEST IN AND BELONG TO SUCH LEASEHOLD MORTGAGEE
OR ANY DESIGNEE OR NOMINEE OF SUCH LEASEHOLD MORTGAGEE PERMITTED
ENDER SHE LEASE, UNTIL 'THE EXPIRATION OR SOONER DETERMINATION OF
THE TERM OF SUCH NEW LEASE.
All persons are nut on notice that no person furnishing
labor, services or materials in connection with repairs cr
i,morovements to the property demised by the Lease shall be
entitied to any lien sr Other claim against Lessor's interest in
t� IJC�L?F?'�' C e;Tl_; E?C�. the Least' ",,,Ie i i ;'_'ch Gerson, has a direct
�cntract wi h Lessor.
IN WITNESS WHEREOF, the parties hereto have executed this
instrument the day and year first above written.
LESSOR:
Signed, sealed and delivered THE CITY OF MIAMI, a municipal
in the presence of: corporation of the State of
Florida
_ By:
SERGIO PEREIRA, City Manager
[SEAL]
LESSEE:
BAYSIDE CENTER LIMITED PARTNER-
SHIP, a Maryland limited
partnership
? By: ROUSE-MIAMI, INC., a
Maryland corporation,
s General Partner
Z _
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-AW OFFICES GREENBERG. iRAURIG. ASAE'W. C1FFMAN LIPOFF. ROSEN S OUENTEL. P A
_ d BRIC+'E:.L CCNCOURS. 1401 BRICKELL AVENUE. MIAMI FLORIDA 33131 . TELEPHONE �305) 579 0500
y
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STATE of FLORIDA )
SS:
COUNTY OF DADE )
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The foregoing instrument was acknowledged before me this
day of September, 1985 by SERGIO PEREIRA, as City Manager of THE
CITY OF MIAMI, a municipal corporation of the State of Florida.
4
+ NOTARY PUBLIC
My Commission expires:
[NOTARIAL SEAL)
STATE OF FLORIDA
SS:
COUNTY OF DADE )
The foregoing instrument was acknowledged before me this
day of September, 1985, by _
, as of ROUSE-MIAMI, INC., a
Maryland corporation, on behalf of said corporation, as General
Partner on behalf of BAYSIDE CENTER LIMITED PARTNERSHIP, a
Maryland limited partnership.
NOTARY PUBLIC -
My Commission expires:
(NOTARIAL SEAL]
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85-921
LAVJ OFFICES GREENBERG. 7RAURIG. ASKEW HOFFMAN. LUPOFF ROSEN S OUENTEL. P A
BgiC�E CGNCCuRS. -401 BRICN.ELL, AVENUE, MIAMI. FLORiOA 33,31 . TELEPtipNE (305) 579-0500
i
TO Honorable Mayor and
Members of the City
Commission
1
Fps:)tii Sergio Pereira
City Manager
I It
CITY OF k1IAM11I, F'1_0RI1-,A
INTER -OFFICE MEMORANDUM
1�4fi
September 5, 1985
57
FII_F BY. 460.01
Amended Bayside Retail
Parcel Lease
"M For City Commission Meeting
September 12, 1985
Resolution, Agreement
It is recommended that the CityCommission
y
adopt the attached Resolution authorizing
the City Manager to execute a Lease
Agreement in su stair lly the orm
attached between the City and Bayside
Center Limited Partnership for the Bayside
Retail Parcel as amended and restated
incorporating requirements for construction
financing and _inc_orpora_ti_ng all documents,
and further to execute a Memorandum of
Lease in substantially the form attached,
as required for closing.
On January 14, 1985,
the City and
Bayside
Center Limited
Partnership entered into
a Ground Lease
Agreement
whereby Bayside
will construct, operate
and maintain
a Specialty
Center on a
portion of Bayfront Park.
In order to acquire construction
financing,
Bayside
Center Limited
Partnership has requested
the Agreement
be amended
and restated as
set forth therein.
It is recommended that the attached Resolution be adopted
authorizing the City Manager to execute, in substantially the form
attached, a Lease Agreement between the City and Bayside Center
Limited Partnership for the Bayside Retail Parcel as amended and
restated, and further to execute a Memorandum of Lease Agreement as
required for closing.
SP/JEG/bf
85--921
AMENDED AND RESTATED
LEASE AGREEMENT
between
BAYSIDE CENTER LIMITED PARTNERSHIP
and
CITY OF MIAMI
September ICL 1985
BAYSIDE SPECIALTY CENTER
RETAIL PARCEL -
8S-9�I
TABLE OF CONTENTS
ARTICLE I - EXHIBITS AND DEFINITIONS
Section 1.1. Exhibits . . . . . . . . . . . . . . . . . . . . .
Section 1.2. Defined Terms . . . . . . . . . . . . . . . . . . .
ARTICLE II - GENERAL TERMS OF LEASE OF LEASED PROPERTY
Section 2.1. Lease of Leased Property to Developer. . . . . . .
a. Premises . . . . . . . . . . . . . . . . . . .
b. Original Term . . . . . . . . . . . . . . . . .
c. Renewal Term .
d. Possession of Leased Property. .
e. Conditions Precedent . . . . . . . .
f. Developer Obligations Prior to Possession. . .
Section 2.2. Restrictive Covenants... . . . . . . . . . . .
a. Use Prohibitions of the Leased Property. . . .
b. No Discrimination. . . . . . . . . . .
c. Permitted Uses for Leased Property . . . . . .
d. Use Prohibitions of the Park Site
and Garage Parcel . . . . . . . . . . . . .
e. Enforceability . . . . . . . . . . . . . . . .
Section 2.3. Easements . . . . . . . . . . . . . . . . . . . . .
a. Existing Easements . . . . . . . . . . . . . .
b. Easements Granted to Developer . . . . . . . .
c. Limitations on Easements Rights. . . . . . . .
d. Duration of Easements . . . . . . . . . . . . .
e. Confirmatory Instruments . . . . . . . . . . .
Section 2.4. Title of Leased Property . . . . . . . . . . . . .
Section 2.5. Rental . .
a. Rentals Payable. .
b. Continuous Operation . . . . . . . . . . . . .
c. Payment of Rental . . . . . . . . . . . . . . .
d. Refinancing. . . . . . . . . . . . . . .
e. Developer's Records . . . . . . . . . . .
f. Pre -Construction Contributions . . . . . . . .
Section 2.6. Covenants for Payment of Public
Charges by Developer . . . . . . . . . . . . . .
Section 2.7. Approvals and Consents . . . . . . . . . . . .
Section 2.8. Security and Police Protection . . . . . . . . . .
Section 2.9. City Improvements. .. . . . . . . . . . . .
Section 2.10. Condition of Leased Property . . . . . . . . . . .
Section 2.11. Roadways and Utilities . . . . . . . . . . . . . .
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TABLE OF CONTENTS
PAGE
ARTICLE
III -
CONSTRUCTION OF IMPROVEMENTS
52
Section
3.1.
Conformity of Plans . . . . . . . . . . . . . . . .
52
Section
3.2.
Preliminary Plans . . . . . . . . . . . . . . . . .
52
Section
3.3.
Construction Plans . .
54
Section
3.4.
Facilities to be Constructed
56
Section
3.5.
Maintenance of Park Site and Leased Property
56
Section
3.6.
Access . . . . . . . . . . . . . . . . . . . .
57
Section
3.7.
. . .
Construction Period. . . . . . . . . . . .
57
Section
3.8.
Progress of Construction . . . . .
58
Section
3.9.
Certificate of Final Completion. . . . . .
59
Section
3.10.
Connection of Building to Utilities. . . .
59
Section
3.11.
Permits and Approvals . . . . . . . . . . . . . . .
60
Section
3.12.
Compliance with Laws
61
Section
3.13.
Extension of Time Requirements
62
Section
3.14.
Alterations and Renovations. . . . . . . . . . . .
62
Section
3.15.
Art in Public Places . . . . . . . . . . . . . . .
63
ARTICLE
IV -
LAND USES
63
Section
4.1.
Land Uses. .. . . . . . . . . . .
63
Section
4.2.
Character and Operation of Improvements. . . . . .
63
ARTICLE V - ANTI -SPECULATION; ASSIGNMENT 64
Section
5.1.
Definitions.
64
Section
5.2.
Purposes of Restrictions on Transfer . . . . . .
66
Section
5.3.
Transfers . . . . . . . . . . . . . . . . . .
67
Section
5.4.
Notice of Transfer; Information as to Shareholders
69
Section
5.5.
Effectuation of Certain Permitted Transfers. . . .
70
Section
5.6.
Transfers of the City's Interests. . . . . . . . .
71
Section
5.7.
Subletting . . . . . . . . . . . . . . .
72
Section
5.8.
Minority participation in ownership. . . . . . . .
73
ARTICLE
VI -
MORTGAGE FINANCING; RIGHTS OF MORTGAGEE
74
Section
6.1.
Leasehold Mortgage
74
Section
6.2.
No Waiver of Developer's Obligations
or City's Rights . . . . . . . . . . . . . . . .
84
ARTICLE
VII
- REMEDIES
84
Section
7.1.
Events of Default - Developer. . . . . . . . . . .
84
a. Failure - Payment of Money . . . . . . . . . .
85
b. Failure - Performance of Other Covenants, Etc.
85
c. Bankruptcy, etc . . . . . . . . . . . . . . . .
85
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TABLE OF CONTENTS
Section 7.2. Remedies for Developer's Default . . . . . . . . .
Section 7.3. Events of Default - City . . . . . . . . . . . . .
a. Events of Default. .
b. Remedies for City's Default. . . . , . . . .
Section 7.4. Unavoidable Delay. . . . . . . . . . . . . . .
Section 7.5. Obligations, Rights and Remedies Cumulative. . . .
ARTICLE VIII - PROTECTION AGAINST MECHANICS' LIENS AND
OTHER CLAIMS, INDEMNIFICATION
Section 8.1. Mechanics' Liens and Payments of Obligations . . .
a. Developer to Discharge.Mechanics' Liens. . . .
b. Payment of Materialmen and Suppliers .
Section 8.2. Indemnity . . . . . . . . . . . . . . . . . . . . .
ARTICLE IX - INSURANCE
Section 9.1. Insurance Coverage . . . . . . . . . . . . . . . .
a. Property Insurance . . . . . . . . . . . . . .
b. Rental Value Insurance . . . . . . . . . . . .
c. Automobile Liability Insurance . . . . . . . .
d. Liability Insurance . . . . . . . . . . . . . .
e. Worker's Compensation . . . . . . . . . . . . .
f . Copies .. . . . . . . . . .
Section 9.2. Responsible Companies - Blanket
Insurance Permitted.
Section 9.3. Named Insureds - Notice'to City of Cancellation. .
Section 9.4. City May Procure Insurance if Developer
Fails To Do So . . .
Section 9.5. Insurance Does Not Waive Developer's Obligations .
Section 9.6. Loss or Damage Not to Terminate Rental
or this Agreement . . . . . . . . . . . . . . . .
Section 9.7. Proof of Loss . . . . . . . . . . . . . . . . . . .
Section 9.8. Property Insurance Proceeds. . . . . . . . . . . .
a. Authorized Payment . . . . . . . . .
b. Disposition of Insurance Proceeds
for Reconstruction . . . . . . . .
c. Lenders and Lender/Landlords May Have Benefit
of Insurance Fund for Reconstruction . . . .
Section 9.9. Covenant for Commencement and Completion
of Reconstruction. . . , . . . . . . . . . .
Section 9.10. Developer's Rights In the Event of Uninsured.
Major Casualty . . . . . . . . . . . . . .
Section 9.11. Casualty to Parking Garage . . . . . . . . . . .
PAGE
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TABLE OF CONTENTS
PAGE
ARTICLE
X - CONDEMNATION
102
Section
10.1.
Entire Leased Property Taken by Condemnation . . .
102
Section
10.2.
Partial Taking of Leased Property by Condemnation.
104
Section
10.3.
Adjustment of Rent Upon Partial Taking . . . . . .
105
Section
10.4.
Taking for Temporary Use or of Leasehold Estate. .
106
Section
10.5.
Arbitration. . . . . • . . . . . . . . . .
107
Section
10.6.
Parking Garage Taken byCondemnation . . . . . . .
109
ARTICLE
XI - RIGHTS OF OCCUPANCY AND ACCESS; MAINTENANCE;
OWNERSHIP OF IMPROVEMENTS
110
Section
11.1.
Quiet Enjoyment . . . . . . . . . . . . . . . . . .
110
Section
11.2.
Waste. . . . . . .
110
Section
11.3.
Maintenance and Operation of Improvements. . . . .
ill
Section
11.4.
Ownership of Improvements During Lease . . . . . .
111
Section
11.5.
Surrender of Leased Property
111
Section
11.6.
City and Developer to Join in Certain Actions.
112
ARTICLE
XII - MISCELLANEOUS PROVISIONS
112
Section
12.1.
No Partnership or Joint Venture. . . . . . . . . .
112
Section
12.2.
Recording, Documentary Stamps. . . . . . . . . . .
113
Section
12.3.
Florida and Local Laws Prevail . . . . . . . . . .
113
Section
12.4.
Conflicts of Interest; City Representatives
Not Individually Liable . . . . . . . . . . . . .
114
Section
12.5.
Notice . . . . . . . . . . . . . . . . • . . . . .
114
a. Developer. . . . . . . . . . . . . . . . . . .
115
b. Developer's Records . . . . . . . . . . . . . .
115
c City Manager . . . . . . . . . . . . . . . . .
115
Section
12.6.
Estoppel Certificates. .
115
Section
12.7.
Provisions Not Merged with Deed.
116
Section
12.8.
Titles of Articles and Sections.
117
Section
12.9.
Counterparts . . . . . . . . . . . . . . . . .
117
Section
12.10.
Nondisturbance and Attornment. . . . .
117
Section
12.11.
Non -Discrimination and Equal Opportunity . . .
118
Section
12.12.
Successors and Assigns . . . . . . . . . . . . . .
118
EXHIBITS
Exnibit A-1 -- Survey
Exhibit A-2 -- 8ayf rout Park Site Plan
Exhibit A-3 -- Site Plan
Exhibit B-1 -- Legal Description of Retail Parcel
Exhibit B-2 -- Legal Description of Area A-4
Exhibit 8-3 -- Legal Description of Area A-5
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85-9102111
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TABLE OF CONTENTS
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EXHIBITS (con't.)
j
Exhibit
C
-- Intentionally Deleted
Exhibit
D
-- Form of Guaranty
Exhibit
E
-- Permitted Encumbrances and Easements
Exhibit
F
-- Approved Concept Plans
Exhibit
G
-- Development Schedule
Exhibit
H
-- Minority Participation Agreement
Exhibit
I
-- List of Design Development Plans
for Restaurant in Area A-4
Exhibit
J
-- List of Drawings Showing All
Easements and Utilities
Located at the Leased Property
Exhibit
K
-- Maintenance Responsibility Plan
1545F/452A
(v)
8S-921
r � �
AMENDED AND RESTATED
LEASE AGREEMENT
THIS AMENDED AND RESTATED LEASE AGREEMENT, made this day of
September, 1985, by and between BAYSIDE CENTER LIMITED PARTNERSHIP, a Maryland
limited partnership (hereinafter referred to as "Developer"), and THE CITY OF
MIAMI, a municipal corporation of the State of Florida (hereinafter referred
to as "the CITY"), acting by and through the CITY MANAGER (hereinafter
referred to as "the City Manager"), and with the prior approval of the City
Commission of Miami.
On January 14, 1985, the parties hereto entered into a certain Lease
Agreement with respect to the Bayside Specialty Center, Retail Parcel and now
desire to enter into this Amended and Restated Lease Agreement to incorporate
certain additional agreements the parties have reached since January 14, 1985
and intend to amend and restate the lease in its entirety.
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 Port Boulevard, Biscayne
Soulevard, Chopin Plaza and Biscayne Bay in the City of Miami, County of Dade,
State of =lorida, which is collectively referred to herein as "Sayfront
r' ParK". Bayfront Park is shown on the survey attached hereto as Exhibit A-1
and the Plat attached hereto as Exhibit A-2. For the purpose of this Lease
Bayfront Park
consists
of
the following parcels:
f
(a)
A parcel
of
land shown and designated
on Exhibit A-1 as
the
5
"Retail Parcel";
(b)
A parcel
of
land shown and designated
on Exhibit A-1 as
the
"Garage Parcel";
(c)
A parcel
of
land shown and designated on
Exhibit A-1 as "Area
B";
t
ti
A-4"; and
A-5"; and
(d) A parcel of land shown and designated on Exhibit A-1 as "Area
(e) A parcel of land shown and designated on Exhibit A-1 as "Area
(f) The remainder of Bayfront Park as shown on Exhibit A-2.
By authority of the City of Miami Charter, the City on March 18, 1983
authorized the publication of a request for proposals for the unified
development project to be known as Bayside Specialty Center for development of
a portion of the Bayfront Park, which development would include restaurants,
fast-food services, retail stores, markets and entertainment areas responsive
to urban, environmental and design factors inherent to the City waterfront and
Bayfront Park.
Developer submitted a proposal to develop a mixed -use project to be
kncwn as "Bayside Specialty Center", which will consist of the following
improvements generally shown on the Site Plan attached hereto as Exhibit A-3:
(a) A pavilion, containing approximately 84,996 square feet of
leasable area on two levels ("North Pavilion"). The North Pavilion will
include specialty retail shops, a pedestrian street, and cafes and restaurants;
(b) A pavilion, containing approximately 82,636 square feet of
leasable area on two levels ("South Pavilion"). The South Pavilion will
contain fast food markets of ethnic food specialties, restaurants, cafes and
specialty retail shops;
(c) A market area, containing approximately 44,000 square feet of
open plaza and approximately 16,000 square feet of leaseable space, located
between the North Pavilion and the South Pavilion ("Market Square"). Market
Square shall contain a flower mart, produce mart, cafes, fisherman's boat
market, and a major water feature;
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8S-921
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(d) A pier park containing (1) a restaurant of approximately 15, 000
square feet, (2) a pedestrian park, (3) a marina pavilion, and (4) a floating
i
band pavilion ("Pier Park") to be located adjacent to the marina shown and
designated as "Miamarina" on Exhibit A-l;
(e) Reflections Restaurant, containing approximately 25,000 square
feet;
(f) Promenades, landscaped areas, viewing pavilions, access roads,
and certain pedestrian bridges described in the aforesaid proposal and other
related amenities; and
(g) Permanent parking garage containing not less than one thousand
two hundred (1,200) parking spaces on three and one-half levels ("Parking
Garage") ano a surface parking lot to be located on certain real property
owned Cy the City located immediately to the west and north of the North
Pavillion (hereinafter called the "Garage Parcel") which will be demised to
Developer pursuant to a lease agreement between the Developer and the City
("Parking Garage Ground Lease").
The City contemplates that the following improvements to Bayfront
Park will be constructed or caused to be constructed by the City:
(a) An Amphitheater;
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(b) Phased replacement of seawalls and rip rap, and construction of
a baywalk with infill and water taxi piers in the location shown on Exhibit
a
A-2. Upon completion of construction of the baywalk and infill, such addi-
tional surface area shall be added to and incorporated into Bayfront Park; and
(c) Certain other improvements agreed to between City and Developer
having a value of $4,000,000, which improvements are hereinafter defined as
3
"Tenant Allowance").
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It is the mutual desire of the parties that a portion of Bayfront
Park 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 understanding of this Lease,
but it is not intended to limit the rights or the obligations of the parties
except to the extent that it contains definitions and terms which are used
elsewhere in this Lease. The square foctages and descriptions in this
Statement of Background and Purpose are for illustrative purposes only, and as
to such matters the approved Construction Plans prepared by the parties shall
control. Certain terms defined in the Statement of Background and Purpose are
more particularly defined in Section 1.2, to which reference is hereby made.
In consideration of the foregoing and of the rent, covenants, and
agreements hereinafter set forth, the parties do hereby covenant and agree as
follows:
ARTICLE I
EXHIBITS AND DEFINITIONS
Section 1.1 Exhibits. Attached hereto and forming a part of this
Agreement are the following Exhibits:
Exhibit A-1 -- Survey
Exhibit A-2 -- Bayfront Park Site Plan
Exhibit A-3 -- Site Plan
c
Exhibit
B-1 --
Legal Description of Retail Parcel
Exhibit
B-2 --
Legal Description of Area A-4
Exhibit
B-3 --
Legal Description of Area A-5
Exhibit
C
-- Intentionally deleted
Exhibit
D
-- Form of Guaranty by The Rouse Company of Columbia,
Maryland
Exhibit
E --
Permitted Encumbrances and Easements
Exhibit
F
-- Approved Concept Plans
Exhibit
G --
Development Schedule
Exhibit
H --
Minority Participation Agreement
Exhibit
I --
List of Design Development Plans for Restaurant in
Area A-4
Exhibit
J --
List of Drawings showing all easements and utilities
located at the Leased Property known to the Director
of Public Works of the City of Miami
Exhibit
K --
Maintenance Responsioility Site Plan
Section 1.2 Defined Terms. AS used herein the term:
"Acceptable Operator" 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 Operator 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) .
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Exhibit
B-1
-- Legal Description of Retail Parcel
Exhibit
B-2
-- Legal Description of Area A-4
Exhibit
B-3
-- Legal Description of Area A-5
Exhibit
C
-- Intentionally deleted
Exhibit
D
-- Form of Guaranty by The Rouse Company of Columbia,
Maryland
Exhibit
E
-- Permitted Encumbrances and Easements
Exhibit
F
-- Approved Concept Plans
Exhibit
G
-- Development Schedule
Exhibit
H
-- Minority Participation Agreement
Exhibit
I --
List of Design Development Plans for Restaurant in
Area A-4
Exhibit
J --
List of Drawings showing all easements and utilities
located at the Leased Property known to the Director
of Public Works of the City of Miami
Exhibit
K --
Maintenance Responsioility Site Plan
Section 1.2 Defined Terms. AS used herein the term:
"Acceptable Operator" means an entity possessing the experience,
qualificaticns, 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 Operator 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).
♦5-
"Additional Rental" means any and all payments required of Develooer
to the City by the terms of this Lease other than Rental.
"this A reementI or this Lease", means this Lease Agreement, as the
same may be modified or amended from time to time.
"Area A-5 Minimum Rental" has the meaning ascribed to it in Section
2.5(a).
"Annual Basic Rental" has the meaning ascribed to it in subclause (i)
of Section 2.5(a).
"Arbitration Panel" has the meaning ascribed to it in Section 10.5
"Area A-4" and "Area A-5" have the meanings ascribed to them in the
Statement of Background and Purpose.
"Area B" has the meaning ascribed to it in the Statement of
Background and Purpose.
"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 Peat, Marwick, Mitchell & Co. or such other nationally
recognized firm of certified public accountants as may be used from time to
time by the Developer for the purpose of certifying the annual reports of its
financial condition required by law. Such firm of accountants must be a
member of the so-called "Big Eight" group of Accounting Firms.
"Bayfront Park" has the meaning ascribed to it in the Statement of
Background and Purpose.
"Bayside Specialty Center" has the meaning ascribed to it in the
Statement of Background and Purpose.
8S-921
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"Additional Rental" means any and all payments required of Developer
i
to the City by the terms of this Lease other than Rental.
z
"this Agreement" or this Lease", means this Lease Agreement, as the
a
same may be modified or amended from time to time.
"Area A-5 Minimum Rental" has the meaning ascribed to it in Section
2.5(a).
"Annual Basic Rental" has the meaning ascribed to it in subclause (i)
s of Section 2.5(a).
"Arbitration Panel" has the meaning ascribed to it in Section 10.5
"Area A-4" and "Area A-5" have the meanings ascribed to them in the
Statement of Background and Purpose.
"Area B" has the meaning ascribed to it in the Statement of
Background and Purpose.
i "Audited Financial Statement" means a Financial Statement certified
7`
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 Peat, Marwick, Mitchell & Co. or such other nationally
recognized firm of certified public accountants as may be used from time to
time by the Developer for the purpose of certifying the annual reports of its
financial condition required by law. Such firm of accountants must be a
member of the so-called "Big Eight" group of Accounting Firms.
"Bayfront Park" has the meaning ascribed to it in the Statement of
Background and Purpose.
"Bayside Specialty Center" has the meaning ascribed to it in the
P
Statement of Background and Purpose.
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"Capital Improvements" means any addition to the Project or the
construction of any additional Improvements or other construction in, upon or
constituting part of the Leased Property (i) occurring subsequent to the date
on which the entire Project is "open for business", (ii) the cost of which is
reasonable and verifiable and may be capitalized and depreciated in accordance
with generally accepted accounting principles and (iii) the cost of which is
not included in the construction and/or permanent financing of Development
Cost.
"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.
"City Improvements" has the meaning ascribed to it in Section 2.9.
"City Maintenance Area" has the meaning ascribed to it in Section 3.5.
"City Storm Sewer Easement" has the meaning ascribed to it in
subclause (ii) of Section 2.3(a).
"the City Manager" has the meaning ascribed to it in the opening
paragraph of this Agreement. -
"Common Area" means those areas and facilities which may be furnished
by Developer within the Leased Property for the non-exclusive general common
use of Subtenants and other occupants of the Improvements, their officers,
agents, employees and customers, including (without limitation) all malls,
courts, ramps, landscaped and planted areas, eating and picnic areas,
retaining walls, stairways, escalators, elevators, fire corridors, bus stops,
first aid stations, comfort stations or restrooms, civic facilities, meeting
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rooms, loading docks and areas, delivery passages, package pick-up stations,
sidewalks, walkways, roadways, parking and loading areas, and other similar
areas, facilities and improvements.
"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.
"Construction Plans" has the meaning ascribed to it in Section 3.3.
"County Easement" has the meaning ascribed to it in subclause W of
Section 2.3(a).
"Cumulative Credit Balance Account" has the meaning ascribed to it in
Section 2.5(a).
"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 of the Developer's estate in the Leased Property
and the Improvements and on borrowing to finance Capital Improvements;
provided, however, that in the event of a foreclosure of any Leasehold
Mortgage or the conveyance of Developer's estate in the Leased Property and
the Improvements to any Lender by deed in lieu of foreclosure, or in the event of the termi.nation of any lease or sublease arising out of a Sale-Subleaseback
Transaction of 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 subclause (c) of
Section 2.5.
"Developer" has the meaning ascribed to it in the opening paragraph
of this Agreement.
"Development Costs" means an amount, provided in reasonable detail to
the City by an executive officer of Developer and acceptable to Developer's
Leasehold Mortgagees or Lender/Landlords, equal to the aggregate of all costs
and expenses actually incurred by Developer for the purpose of and properly
allocated to the initial development and construction of the Developer
Improvements at the Leased Property (together with any and all improvements
made by Developer on behalf of*the-City in areas adjacent to the Leased
Property not paid for by the City), including (without limitation or
duplication):
(1) Design, planning, architectural and engineering fees, costs
and expenses; and presentation costs and expenses;
(2) The cost of labor, equipment, supplies, materials and
services paid to contractors and subcontractors;
(3) Fees and expenses paid to contractors and subcontractors;
(4) Legal and accounting costs, fees and expenses;
(5) Interest, commitment fees, points and other financing costs
incurred in arm's length transactions, and interest on money borrowed by
Developer from its parent, affiliated entities or subsidiaries in connection
with the development of the Bayside Specialty Center at a cost not greater
than the borrowing cost incurred by such parent, affiliate or subsidiary;
(6) The cost of property, liability, workmen's compensation,
title and other insurance;
85-92�,
Charges;
(7) The cost of obtaining permits and licenses, and all Public
(8) Utility relocation costs and expenses and tap -in fees or
other fees for connection to utility systems and utility services during
construction;
(9) All costs and expenses incurred in connection with the
negotiations and execution of this Lease;
(10) The cost of initially furnishing and equipping management
and promotion offices in the Improvements;
(11) The cost of providing, furnishing, equipping and operating
a field office at or near the Leased Property to or during construction of the
Improvements, including (without limitation) the costs of construction
trailers or other temporary office structures, barges and other vessels,
automobiles, office furniture, equipment, supplies, telephone, stationery,
postage and duplication;
(12) The salaries, fringe benefits, payroll taxes, travel and
moving expenses, and other costs of employment at such field office of (i)
managers and promotion directors (but only to the extent incurred prior to the
^opening Date), and (ii) tenant coordinators, project accountants, secretaries,
clerks and similar office personnel;
(13) The cost of subleasing the Improvements for their initial
occupancy, including (without limitation) advertising costs and the fees,
commissions and expenses paid to leasing agents or brokers;
(14) The cost of pre -opening management, advertising and
publicity and the cost of any opening event or celebration including
advertising and publicity of same;
85-902.
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(15) The central office overhead cost of The Rouse Company or
any affiliate related thereto with respect to the development of the Project;
(16) Other reasonable costs and expenses which are of a type
usually and customarily incurred in connection with development of a specialty
retail center.
To the extent that any of the above items are paid for by the Tenant
Allowance, such item or portion thereof paid by, the Tenant Allowance shall not
constitute a Development Cost.
"Developer Equity Investment" means the amount equal to the sum of
(i) Development Cost, (ii) an amount equal from time to time to any unrecouped
and unfinanced cost of Capital Improvements made and paid for by Developer
after initial construction of the Developer Improvements, and (iii) Operating
Losses (excluding Rentals other than Additional Rental) less (iv) the net
proceeds actually received by Developer from any and all Leasehold Mortgages
or all Sale- Sub leaseback Transactions of Developer's estate in the Leased
Property and Improvements.
"Developer Improvements" has the meaning ascribed to it in Section
3.4.
"Developer Maintenance Area" has the meaning ascribed to it in
Section 3.5.
"Developer Removal Option" has the meaning ascribed in Section
2.5(a)(iv).
"Developer Utility Easement" has the meaning ascribed to it in the
subclause (i) of Section 2.3(b).
"Developer Vehicular Access Easement" has the meaning ascribed to it
in subclause (ii) of Section 2.3(b).
85-92i
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"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).
"Fair Market Value" means the price, as of the date in question,
which a seller, willing but not obligated to sell, would accept for the City's
reversionary interest in the Leased Property and the Improvements or the
Developer's estate in the Leased Property and the Improvements (as the case
may be), and which a buyer, willing but not obligated to buy, would pay
therefor in an arm's length transaction.
"FEC Tract" means that certain parcel of land owned by the City of
Miami, located north of the Leased Property, shown and designated as "FEC
Tract" on Exhibit A-1.
"Final Substructure Plans" has the meaning ascribed to it in Section
3.3.
"Financing Sublease" has the meaning ascribed to it in the definition
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of "Sale-Subleaseback Transaction".
"Foundation" has the meaning ascribed to it in Section 12.11.
"Grand Prix Agreement" has the meaning ascribed to it in Section
f
2.2(c) .
"Garage Parcel" has the meaning ascribed to it in the Statement of
Background and Purpose.
"Improvements" shall mean all existing and future structures at the
Leased Property.
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"Institutional Investor" has the meaning ascribed to it in subclause
(b) of Section 6.1.
"Insurance Trustee" has the meaning ascribed to it in Section 9.8(a).
s
}
"Leaseable Area" means the aggregate of the actual number of square
feet of leaseable area in the Leased Property designed for the exclusive use
and occupancy of rent paying Subtenants, excluding Common Areas, mezzanine
storage areas, areas used for management and promotion offices, mechanical
equipment penthouse, and truck docks and truck loading areas (including
covered receiving areas adjacent thereto).
"Leased Property" has the meaning ascribed to it in Section 2.1.
"Leasehold Mortgage" shall 'have the meaning ascribed to it in
subclause (b) of Section 6.1.
"Leasehold Mortgagee" and "Lender" shall have the meanings ascribed
to them in subclause (b) of Section 6.1 and shall be used interchangably.
"Lender/Lanclord" means a lender, and any successor, assignee,
transferee or designee of such lender, to which, in connection with the
providing of financing to the Developer under this Lease, Developer's
leasehold interest in this Lease has been conveyed and which has thereafter
entered into a Financing Sublease with Developer.
y.
"License" has the meaning ascribed to it in Section 2.2(c).
"Market Square" has the meaning ascribed to it in the Statement of
Background and Purpose.
"Management Costs" means (without duplication) Developer's reasonable
and prudent costs of performing management services for the Project, which
services shall include the following: (i) supervision of the performance of
all of Developer's obligations in accordance with the standards of operation
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and maintenance applicable to a high quality retail development, including
without limitation supervision of heating, ventilating, air-conditioning and
maintenance of the Project and the maintenance of all Common Area, and all
security systems and retail management personnel; (ii) enforcement of all
Subleases (including collection of minimum and percentage rents, collection of
other charges such as common area maintenance and heating, ventilating and
air-conditioning charges, and supervision of the performance of all obligation
under Subleases), termination and modification of existing Subleases when
required, renewal of such Subleases and obtaining new Subtenants for vacant
spaces; (iii) supervision of any merchants association; (iv) formulation of
all budgets for operation of the Project; (v) keeping books of account,
auditing such books at least annually, preparation of statements of account to
be submitted to the City showing the performance and condition of the Project,
and supervision of the payment of all ^hli.gations related to the operation
thereof; (vi) development of programs for the promotion of the Project
(including advertising and publicity programs); (vii) management of the
Project, including all normal legal fees, accounting, auditing, transportation
and travel salaries, home office expenses of the Developer, The Rouse Company
ano affiliates, and the salaries, benefits and expenses of all personnel
related to the supervision and administration of management services,
including all supplies and materials required in connection therewith; and
(viii) all reasonable on -site costs and expenses relating to on -site managers,
assistant managers, marketing directors and bookkeepers, incidental
out-of-pocket costs (including but not limited to office supplies, telephone,
stationery, postage and duplication), market research and analysis and
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consumer surveys, legal and other proceedings involving Public Charges,
outside CPA audits relating to the Project or Subtenants, plans for minor
alteration of the Project, proceedings relating to condemnation or eminent
domain, legal proceedings for eviction or bankruptcy -related proceedings for
any Subtenant, and legal and other costs of extraordinary legal proceedings
concerning the Project, all whether performed by on -site personnel or
independent third parties.
"Miamarina" has the meaning ascribed to it in the Statement of
i
Background and Purpose.
"Minimum Base Rental" has the meaning ascribed to it in Section 2.5.
"Net Income Available for Distribution" means the Operating Income
for the applicable or pertinent period, minus the sun of (1) Operating
Expenses for the same period, (2) Debt Service Payments for the same period,
and (3) an amount equal to ten percent (10%) of Developer's Equity Investment
for the same period. Net Income Available for Distribution shall be
determineo on an accrual basis in accordance with generally accepted
accounting principles.
"North Pavilion" has the meaning ascribed to it in the Statement of
Background and Purpose.
"On -Site Management Costs" means that portion of Management Coc;t�
described in clause (viii) of the definition of the term "Management Costs".
"Opening Date" means the earlier of (1) the date upon which Subtenants
occupying eighty (80%) percent of the Leaseable Area (exclusive of temporary
tenants or pushcarts) are open and operating for business with the general
9
public in the Leaseable Area, or (2) the ninetieth day following issuance of
t
the Certificate of Final Completion.
LDS-921
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"Operating Contributions" means any and all payments made to Developer
by any Subtenant or other party as a contribution toward the cost of cleaning,
maintaining and repairing and securing any of the facilities situated outside
structures located on the Leased Property, or the cost of providing,
maintaining, repairing and operating heating, ventilating or air-conditioning
equipment (including, without limitation, the cost of energy therefor), or as
a contribution to any promotion fund, advertising fund or merchants
association administered by Developer, or in consideration of the furnishing
of utility services by Developer, or in consideration of the furnishing of
sprinkler or fire protection systems and devices, or as a reimbursement or
contribution toward the payment of any. Public Charges or any other payment in
the nature of a reimbursement of, or contribution to, or charge in lieu of any
cost incurred by Developer in connection with the ownership or operation of
the Leased Property or the Improvements.
"Operating Expenses" means (without duplication) (1) all reasonable
and prudent expenditures for a Waterfront Specialty Center according to tie
then current standards of the industry accounted for by the accrual method in
accordance with generally accepted accounting principles made by the Developer
or which the Developer is obligated to make in the operatics, ownership or
management of the Leased Property and the Improvements or any part of either,
including (without limitation) payroll and payroll expenses, business taxes
and Public Charges, supplies, license and permit fees, repair and maintenance
expenses, costs and expenses of cleaning, maintaining and repairing the
Project, utility charges, insurance premiums, auditing and professional fees
and expenses, publicity costs and expenses (including, without limitation,
PS-941
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3
"Operating Contributions" means any and all payments made to Developer
by any Subtenant or other party as a contribution toward the cost of cleaning,
j
maintaining and repairing and securing any of the facilities situated outside
structures located on the Leased Property, or the cost of providing,
maintaining, repairing and operating heating, ventilating or air-conditioning
equipment (including, without limitation, the cost of energy therefor), or as
a contribution to any promotion fund, advertising fund or merchants
association administered by Developer, or in consideration of the furnishing
of utility services by Oeveloper, or in consideration of the furnishing of
sprinkler or fire protection systems and devices, or as a reimbursement or
contribution toward the payment of any. Public Charges or any other payment in
the nature of a reimbursement of, or contribution to, or charge in lieu of any
t
cost incurred by Developer in connection with the ownership or operation of
the Leased Property or the Improvements.
"Operating Expenses" means (without duplication) (1) all reasonable
ano prudent expenditures for a Waterfront Specialty Center according Lo t"e
then current standards of the industry accounted for by the accrual method in
accordance with generally accepted accounting principles made by the Developer
or which the Developer is obligated to make in the operatics, ownership or
management of the Leased Property and the Improvements or any part of either,
y
including (without limitation) payroll and payroll expenses, business taxes
and Public Charges, supplies, license and permit fees, repair and maintenance
s
expenses, costs and expenses of cleaning, maintaining and repairing the
insurance premiums, auditing and professional fees
Project, utility charges, p , 9
b
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and expenses, publicity costs and expenses (including, without limitation,
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contributions to any promotion fund, advertising fund or merchants association
administered by the Developer), (2) On -Site Management Costs, (3) three and
one-half 3-1/2% percent of Operating Income for Management Costs (exclusive of
On -Site Management Costs), (4) Minimum Base Rental, and (5) Area A-5 Minimum
Rental. In no event shall depreciation constitute a portion of Operating
Expenses. No expenses or costs incurred by Developer in connection with the
operation of the Parking Garage shall constitute Operating Expenses hereunder.
"Operating Income" means the Developer's gross operating revenues
arising out of or resulting from the rental and/or ownership and operation of
the Leased Property, the Improvements (other than funds received as the
capital contributions, insurance or condemnation proceeds, or the proceeds of
loans, financings or sale of property), including (without limitation) all
such operating revenues, Operating Contributions and other payments received
from Subtenants and all income from vending machines, telephones, pay toilets
and other sources located in the Leased Property or the Improvements. Prepaid
rents, prepaid payments and security deposits shall not be included in
Operating Income until earned, applied or forfeited. If Developer shall
receive insurance or condemnation proceeds or awards, the amount thereof which
represents reimbursement to Developer for items accounted for as Operating
Expenses shall be deemed to be Operating Income. No operating revenues made
by Developer with respect to the Parking Garage shall constitute a portion of
Operating Income hereunder.
"Operating Losses" means the amount by which the Operating Income for
the applicable period is less than the aggregate of Operating Expenses
(calculated for the purpose of this definition to include Annual Basic Rental
under item (4) of the definition for Operating Expenses in lieu of Minimum
Base Rental) plus Debt Service Payments for the same period.
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"Original Term" has the meaning ascribed to it in clause (c) of
Section 2.1.
"Owner" has the meaning ascribed to it in Section 5.1.
"Owner whose shares are publicly traded" has the meaning ascribed to
it in Section 5.1.
"Park Site" means the area comprising the Bayfront Park but excluding
the Leased Property and the Garage Parcel all as shown on Exhibit A-2.
"Parking Garage" has the meaning ascribed to it in the Statement of
Background and Purpose.
"Parking Garage Ground Lease" has the meaning ascribed to it in the
Statement of Background and Purpose.
"Pier Park" has the meaning ascribed to it in the Statement of
Background and Purpose.
"Possession Date" has the meaning ascribed to it in Section 2.1(d).
"Project" means the Leased Property plus the Improvements.
"Public Charges" has the meaning ascribed to it in Section 2.6.
"Reconstruction Work" has the meaning ascribed to it in clause (b) of
Section 9.8.
"Refinancing" means any financing, by way of a Leasehold Mortgage or
by way of a Sale -Leaseback Transaction of Developer's estate in the Leased
Property and Improvements, which results in Refinancing Proceeds being
available to Developer. Refinancing shall not include the initial long term
financing of the Project or any equipment leasing or the refinancing of any
interim or any construction financing obtained by Developer to finance its
development and construction obligations hereunder.
"Refinancing Proceeds" means the net proceeds available to Developer
out of any Refinancing after deduction of (i) an amount equal to Developer's
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Equity Investment, (ii) all amounts required to repay the then existing debt
secured by all Leasehold Mortgages being refinanced or to repurchase Devel-
oper's estate in the Leased Property and Improvements if previously conveyed
in a Sale -Leaseback Transaction, and (iii) all costs and expenses associated
with the negotiation and closing or consummation of such Refinancing.
"Removal Option" has the meaning ascribed to it in Section 2.5(a)(iv).
"Renewal Term" has the meaning ascribed to it in clause (c) of Section
2.1.
"Rent Commencement Date" means the date described as "Rent
Commencement Date" on Exhibit G attached hereto, subject to extensions or
adjustments thereto for a period equal to any delay in he occurrence in the
Completion Date due to Unavoidable Delays, as defined in Section 7.4.
"Rental" has the meaning ascribed to it in clause (a) of Section 2.5.
"Rental Year" means a calendar year consisting of twelve (12)
consecutive calendar months beginning on January 1 and ending on December 31
of each year of this Lease. The first Rental Year during the term of this
Lease shall commence on the Opening Date and end on December 31st of the same
calendar year in which the Opening Date occurs, and the Rental shall be
apportioneo therefor. Any portion of the term remaining after the end of the
last full Rental Year shall constitute the final Rental Year, and Rental shall
be apportioned therefor.
2.10.
"Restaurant Facilities" has the meaning ascribed to it in Section
"Restaurant Lease" has the meaning ascribed to it in Section 2.10.
"Restaurant Parcel" has the meaning ascribed to it in Section 2.10.
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8S-9021
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"Sale-Subleaseback Transaction" means Developer's sale to a Lender/
Landord of all or a substantial portion of Developer's interest in this Lease,
ano the subsequent execution of a sublease ("Financing Sublease") between
Lender/Landord and Developer.
"Section", "subsection", "paragraph", "subparagraph", "clause", or
"subclause" followed by a number or letter means the section, subsection,
paragraph, subparagraph, clause or subclause of this Agreement so designated.
"South Pavilion" 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 and Improvements.
"Subtenant" means any person, firm, corporation or other legal entity
using or occupying or entitlea to use or occupy any part of the Leased
Property or the Improvements under a Sublease.
"Supplemental Agreement" has the meaning ascribed to it in Section
2.2(c).
"Tenant Allowance" means those certain improvements to be agreed upon
oetween the City and the Developer to be made by Developer at the City's cost
a
to the Leased Property having an aggregate cost of Four Million Dollars
(S4,000,000) in consideration of Developer entering into this Lease.
"Transfer" has the meaning ascribed to it in Section 5.1.
"UDAG has the meaning ascribed to it in subclause (e) Section 2.1.
:3
85-9�..I
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14
"Waterfront Specialty Center" means a retail complex situate on or
near a major body of water having a wide variety of specialty retail and
restaurant establishments and other food related uses. Examples of Waterfront
Specialty Centers include but are not limited to Faneuil Hall Marketplace in
Boston, Massachusetts, Harborplace in Baltimore, Maryland and South Street
Seaport in New York, New York.
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. The City demises and leases to Developer, and Devel-
oper takes and hires from the City, all of the area described as Retail
Parcel, Area A-4 and Area A-5 as shown on Exhibit A-1 and more particularly
aescribed in the legal descriptions attached hereto as Exhibits B-1, B-2 and
5-3 together
with the
buildings, structures,
improvements and equipment
thereon and
together
with and. subject to the
restrictions, conditions,
covenants and easements hereinafter mentioned, reserved or granted (the "Leased
Property"). The City and Developer recognize that the boundaries of the Leased
Property may require minor adjustments to accommodate the Improvements con-
templated pursuant to the Construction Plans. Should the parties agree a
modification is required, Exhibits B-1, B-2 and/or B-3 to this Lease shall be
amended accordingly.
- 21 -
ti
City shall have the right, but not the obligation, to construct the
proposed light tower on Area A-5. Within one (1) year from the Completion
Date, Developer shall notify the City Manager whether or not Developer intends
to construct the proposed improvement on Area A-4 and/or to occupy the
proposed light tower to be constructed by the City on Area A-5. If, within
such one (1) year period, the Developer elects not to construct on Area A-4 or
to not occupy the proposed light tower on Area A-5 or if the City has not
decided to construct the improvements on Area A-5, this Lease shall terminate
as to such Area and same shall be deemed to be included in the Park Site. If
Developer elects to construct improvements on Area A-4, such improvements must
be substantially in accordance with the design development plans approved by
the City Commission and made a part of this Agreement as Exhibit I.
New structures shall be limited to a maximum height not to exceed that
of the existing Restaurant Facilities (50 feet above grade, 57 feet above mean
water level) with such minor exceptions as the City Manager in the interest of
good architectural design shall approve in connection with his approval of
Construction Plans. Buildings on the Leased Property shall not exceed a total
of 200,000 square feet of Leaseable Area of New Construction plus a bonus of
42,C00 square 'eet of Leaseable Area of new construction to which the Developer
shall be entitled upon demolition of the existing Bayfront Municipal
Auditorium.
(b) Original Term. To have and to hold the Leased Property for a
term of forty-five (45) years, commencing on the first day of the month next
following the Possession Date. 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
8S-921
- 22 -
termination dates of the Original Term, determined in accordance with this
Agreement.
(c) Renewal Term. Developer is granted an option to renew this Lease
from time to time upon the same terms and conditions, except as otherwise
expressly provided, for up to two (2) additional terms (each called a "Renewal
Term") of fifteen (15) years each, commencing at the expiration of the Original
Term or the previous Renewal Term, as the case may be, and terminating on the
fifteenth (15th) anniversary of such expiration, by giving the City express
written notice of a Renewal not less than six (6) months before the date on
which such Renewal Term is to commence. At the City's option, such renewal
request shall not be granted if at trip expiration of the Original Term or the
immediately preceding Renewal Term, as the case may be, an Event of Developer's
Default shall have occurred and be continuing. Within thirty (30) days after
commencement of a Renewal Term, 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 bade County setting
forth the beginning and termination dates of the Renewal Term, determined in
accoroance with this Agreement.
(d) Possession of Leased Property. The City shall deliver
possession of the Leased Property and the existing Improvements to Developer,
and Developer shall take possession thereof within thirty (30) days after the
following shall have occurred:
(i) The City Manager shall have approved the Preliminary Plans
and Final Substructure Plans for the Developer Improvements to be
constructed on the Leased Property, as provided in Sections 3.2 and 3.3;
(ii) The City Manager shall have received and approved the
commitment or commitments for the construction and permanent financing of
6S-921
- 23 -
the Developer Improvements to be constructed at the Leased Property, or
such other evidence as may be reasonably satisfactory to the City Manager
that such financing has been committed or is available which approval
l shall not be unreasonably withheld. The City Manager must approve such
i
financing if same is on terms prevailing in the then current market place
in the United States. Developer may, at its option, self -finance all or a
portion of the Developer Improvements provided, however, that Developer
may not charge the Project an interest rate in excess of Developer's
parent's cost of borrowing;
(iii) The City Manager shall have received a guaranty in form
attached hereto as Exhibit D from The Rouse Company (a Maryland
corporation) of 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;
(iv) All governmental permits and approvals required to commence
construction of the Developer Improvements shall -have been obtained by
Developer;
(v) The City and Developer shall have entered into a mutually
acceptable agreement with respect to the Miamarina; and
(vi) The City shall be in a position to deliver the Restaurant
Parcel to Developer free and clear of all leases (other than this
Agreement), licenses (other than the Grand Prix Agreement, if applicable)
and other occupancy or possessory agreements.
The date that the City delivers possession of the Leased Property and
the existing Improvements to Developer in accordance with this paragraph (d),
by notice in writing, is herein called "Possession Date".
- 24 -
y
(e) Conditions Precedent. Developer shall not be obligated to take
possession of the Leased Property or to perform any other obligations under
this Lease unless and until the following shall have occurred or have been
obtained:
(i) the City Manager has approved all of the Construction Plans
for the Developer Improvements;
(ii) Developer has obtained all governmental approvals and
i
permits necessary for construction of the Developer Improvements;
(iii) the City shall have received all governmental approvals and
i
permits necessary for construction of the City Improvements and the City
Improvements located on the Retail.Parcel shall be substantially completed;
(iv) Developer shall have obtained a commitment or commitments,
on terms and in a form satisfactory to Developer, from Institutional
?
Investors or Lender/Landords for construction and long term financing of
the Project;
(v) The City Manager has approved all construction plans for
the Parking Garage and other improvements to be constructed pursuant to
the Parking Garage Ground Lease;
i
4
(vi) The Developer has obtained all governmental approvals and —
-
permits necessary for construction of the Parking Garage and other
a
improvements to be constructed pursuant to the Parking Garage Ground Lease;
Vp
l
(vii) The City Manager shall have obtained a firm commitment
acceptable to Developer for the issuance, sale and purchase of tax exempt
industrial revenue bonds on terms and in a form satisfactory to Developer
for construction of the Parking Garage and other improvements to be
constructed pursuant to the Parking Garage Ground Lease;
(viii) the City has entered into a Grant Agreement with the U.S.
Department of Housing and Urban Development for an Urban Development
Action Grant ("UDAG") in the amount of at least Six Million One Hundred
Thousand Dollars ($6,1009000), on terms and in a form satisfactory to
Developer;
(ix) The City and Developer shall have entered into a mutually
acceptable agreement with respect to the Miamarina;
(x) Developer shall be satisfied that the development of the
Project will not violate the Environmental Laws (hereinafter defined); and
(xi) Developer shall be satisfied that the City shall be able to
deliver the Restaurant Parcel to.Developer pursuant to the provisions of
subsection 2.1(d)(vi) hereof.
Developer and the City shall use good faith efforts to satisfy all of
the aforesaid conditions precedent. It is recognized by the parties hereto
that it is not the intention of either party to encumber the Leased Property
with this Lease for an indefinite period of time during the period of
satisfaction of the aforesaid conditions precedent and that therefore either
party shall have the right to terminate this Lease if all of the aforesaid
conditions precedent are not satisfied or waived on or before January 1,
1988. If Developer does not obtain satisfactory financing pursuant to
subsection (iv) above and shall solely as a result thereof terminate this
Lease, Developer shall pay to the City the amount of Two Hundred Fifty
Thousand Dollars ($250,000) as liquidated damages for such termination of this
Lease provided that the City Manager establishes that Developer did not
negotiate in good faith for such financing. There shall be no damages payable
to the City if the Developer shall be unable to obtain acceptable financing
after a good faith effort with respect to same. It is agreed that not with-
85-921
- 26 -
standing the City's agreement to use good faith to satisfy the aforesaid
conditions precedent, the City shall not be required to expend any funds in
order to comply with any requirements of the statute or code set forth in (x)
above except as specifically set forth in Section 3.11 hereof.
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 by
Developer's express written statement to that effect delivered to the City or
the City Manager.
Notwithstanding the foregoing, should all of the conditions precedent
set forth in this Section 2.1(e), except for the conditions relating to
permanent financing in subsection (iv) above, and in Section 2.1(d)(ii) above
be satisfied and should Developer desire to take possession of the Project by
a notice in writing on a designated Possession Date, the City agrees to waive
the conditions precedent set forth in subsection (iv) above and Section
2.1(c)(ii) and thereafter there shall be no damages payable or any other
remedy available to the City if the Developer shall be unable to obtain the
financing referred to in said subsections.
(f) Developer Obligations Prior to Possession. Notwithstanding any-
thing herein to the contrary, until possession of the Leased Property and the
existing Improvements shall have been delivered to Developer pursuant to the
provisions of clause (e) of this Section 2.1, Developer shall not be required
to perform any of its obligations hereunder with respect to any portion of the
Project as to which possession shall not have been so delivered to the extent
85"'9OCW
- 27 -
that such possession shall be reasonably required for the performance of such
obligation.
The City shall indemnify, hold harmless and defend Developer from and
against any and all claims, actions, suits or demands of any nature whatsoever
with respect to any portion of the Leased Property arising out of any act or
f
omission of the City, its agents, servants, employees or contractors occurring
prior to delivery of possession thereof to Developer as herein provided.
Section 2.2 Restrictive Covenants. The restrictive covenants con-
tained in paragraphs (a) through (d) 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 and the Park Site (as
the case may be) 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, howe -::., that the development and opera-
tion of the Leased Property, the Developer Improvements and the City Improve-
ments in a manner which is in the best interests of both parties may from time
to time require the confirmation, clarification, amplification, or elaboration
of this Agreement in order to deal adequately with circumstances which may not
now be foreseen or anticipated by the parties. The parties reserve unto them-
selves the right to enter into such interpretive, implementing or confirmatory
i
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.
(a) Use Prohibitions of the Leased Property. The Leased Property
hereby demised shall not be used for the following:
(i) Permanent or temporary housing or sleeping quarters; or
85-921
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n
il
(ii) Coinbox entertainment (pinball, video games, moving pictures
operated by coins); or
(iii) Casino gambling, games of chance or reward; or
(iv) Any unlawful or illegal business, use or purpose, or for
any business, use or purpose which is immoral or disreputable (including
without limitation "adult entertainment establishments" and "adult"
bookstores) or extra -hazardous, or in such manner as to constitute a
nuisance of any kind (public or private), or for any purpose or in any way
in violation of the certificates of occupancy (or other similar approvals
of applicable governmental authorities).
Developer agrees that if casino gambling shall in the future become
legal in the City of Miami,
(i) Developer may not use the Improvements or any portion of the
Leased Property for casino gambling purposes without the prior
consent of the City, and if the City shall consent, the parties
shall in good faith negotiate an appropriate modification or
amendment to this Agreement, which shall result in the Annual
Basic Rental to the City in excess of 35% of Net Income
Available for Distribution;
(ii) The City shall not use or authorize the use of any portion of
Bayfront Park (other than the Leased Property) for casino
gambling purposes without the prior consent of Developer, and if
Developer shall consent, the parties shall in good faith negoti-
ate an appropriate modification or amendment to this Agreement
intended to reflect the changed conditions resulting from such
use of Bayfront Park.
85-9�11
- 29 -
0
Developer acknowledges that if casino gambling shall become legal in the City
of Miami, the City may authorize the use of any of its property for same
(except as herein restricted), including, but not limited to the F.E.C. Tract
i
located directly to the north of the Leased Property.
(b) No Discrimination. No covenant, agreement, lease, conveyance or
other instrument shall be effected or executed by Developer, or any of its
i
successors or assigns, whereby the Leased Property or any portion thereof is
restricted by Developer, or any successor in interest, upon the basis of race,
color, religion, sex or national origin in the sale, lease, use or occupancy
thereof. Developer will comply with all applicable state and local laws, in
i
effect from time to time, prohibiting discrimination or segregation by reason
of race, color, religion, sex, or national origin in the sale, lease or
occupancy of the Leased Property.
(c) Permitted Uses for Leased Property. Except for the limited use
by Miami MotorSports, Inc. pursuant to (i) a license agreement entered into
between the City and Miami MotorSports, Inc. on June 14, 1982, as amended by
an amendment to such license agreement between the City and Developer on
January 14, 1985 (the "License"), and (ii) an agreement (the "Supplemental
Agreement") among Developer, the City and Miami MotorSports, Inc. on January
149 1985 (the License plus the Supplemental Agreement hereinafter collectively
3
the "Grand Prix Agreement"), the only uses permitted on the Leased Property
are retail, recreation, mooring of boats along the sea wall located on the
portion of the Leased Property adjacent to Biscayne Bay, parking and office
(provided that such office uses shall be limited to management offices and
"►
other office uses commonly found in retail centers). For the purpose of this
ri
Lease "retail" shall mean sale of any and all commodities or services to the
consumer, including (without limitation) restaurants, facilities for the sale
8S-921
- 30 -
of food or alcoholic (including beer and wine) and non-alcoholic beverages,
merchandise, and services customarily found in urban retail centers similar to
the Project.
(a) Use Prohibitions of the Park Site and Garage Parcel. The
parties acknowledge and agree that the Leased Property is surrounded by the
Park Site and Garage Parcel and that, consequently, the manner in which the
Party Site and Garage Parcel is or may be used from time to time will have a
direct and material affect on the use and value of the Leased Property and the
Improvements. In consideration of the foregoing and of the Rentals reserved
by it under this Lease, the City, as the owner of the Park Site and the Garage
Parcel, for itself, its successors and assigns, covenants and agrees with
Developer, its successors and assigns that:
(i) The City will not permit any use of the Garage Parcel,
Miamarina, the baywalk or the docks on the Park Site which would detract
from the use of the Leased Property or which would materially obstruct the
view of Biscayne Bay from the Leased Property, including (without
limitation) any such use by vessels using the docks or the Miamarina.
(ii) The City will not, without first obtaining the written
consent of the Developer, (1) construct any fence or barrier between the
Park Site, the Garage Parcel and the Leased Property, or (2) make or
permit substantial alteration in the Park Site or the Garage Parcel or
permit any structure on the Park Site or the Garage Parcel which will
substantially adversely affect the access to and from the Leased Property,
or be inconsistent with the use of the Leased Property;
(iii) The City will not sell the Park Site or the Garage Parcel
except to a party who shall agree to expressly assume the City's
obligations under this Agreement and who shall have the authority to
assume and perform the same as provided for unoer Section 5.6; 5-92
- 31 -
s
it I
( iv) Except with respect to Areas A-4 and A-5 which may be used
by the City for any lawful purpose if the City shall terminate this Lease
with respect to same pursuant to Section 2.1(a), and except for the
temporary uses permitted pursuant to the Grand Prix Agreement, the Park
Site will, during the term of this Lease and any renewals hereof, be open
to the general public and shall be devoted only to public park uses; and
(v) The City will coordinate its ongoing planning and
implementation efforts relating to the construction of improvements to and
the use of the Park Site and Areas A-4 and A-5 with Developer (including,
without limitation, the staging of promotional events and entertainment
activities and construction activities) so that the making of improtiaments to
and the use of such area will not materially adversely effect the Developer's
and Subtenant's use and enjoyment of the Leased Property.
The City agrees to impose the use restrictions affecting the Garage
Parcel hereinabove set forth, from time to time, on the tenant's estate under
the Parking Garage Ground Lease and, so long as the Parking Garage Ground
Lease in in effect, Developer agrees to look solely to such tenant with
respect to the enforcement of its rights hereunder as same apply to the Garage
Parcel provided that the City shall have imposed such use restrictions on such
party.
Notwithstanding the provisions of the preceding paragraph, the City
agrees that at all times during the term hereof or of any new lease entered
into pursuant to Article VI hereof, the City will operate or require the
tenant under the Parking Garage Ground Lease to operate the Parking Garage as
a public parking facility.
(e) Enforceability. It is intended and agreed hereby that the
restrictive covenants contained in this Section 2.2 shall be binding upon the
85-921
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LJ
i
City and the Developer, their respective successors and assigns, and shall be
covenants running with the land and shall be for the benefit and in favor of,
and enforceable by, the City and Developer respectively, as the case may be;
A
provided, however, that such covenants shall be binding on Developer, and the
4
City, and their respective successors in interest and assigns, only for such
period as each shall have (i) fee title to the Leased Property, the Park Site
or any part of either, 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. The following easements presently exist:
(i) the easement for a 72 inch underground force main, more
particularly shown and designated as the "County Easement" on Exhibit A-1
hereto;
(ii) the 20 foot storm sewer easement more particularly shown
and designated as the "City Storm Sewer Easement" on Exhibit A-1 hereto;
(iii) such other easements as are described on Exhibit E.
(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 replace utility facilities such
s
as water, gas, electric, and telephone lines and storm and sanitary sewers
3
underground within portions of the Park Site, and any other property owned
oy the City which is not a dedicated street, in the location shown there-
fore on the approved Construction Plans or in such other locations as may
A
be approved by the City Manager from time to time;
0c�..�,
-33-
e
City and the Developer, their respective successors and assigns, and shall be
covenants running with the land and shall be for the benefit and in favor of,
and enforceable by, the City and Developer respectively, as the case may be;
provided, however, that such covenants shall be binding on Developer, and the
i
City, and their respective successors in interest and assigns, only for such
period as each shall have (i) fee title to the Leased Property, the Park Site
or any part of either, as to the City, and (ii) the leasehold estate herein
demised to Developer, as to Developer.
i
Section 2.3
Easements. The
following easements presently exist or
5
3
are hereby granted:
?
(a) Existing
Easements. The
following easements presently exist:
(i) the
easement for a
72 inch underground force main, more
particularly shown
and designated
as the "County Easement" on Exhibit A-1
hereto;
(ii) the
20 foot storm
sewer easement more particularly shown
and designated as
the "City Storm Sewer Easement" on Exhibit A-1 hereto;
(iii) such other easements
as are described on Exhibit E.
(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 replace utility facilities such
as water, gas, electric, and telephone lines and storm and sanitary sewers
underground within portions of the Park Site, and any other property owned
cy the City which is not a dedicated street, in the location shown there-
fore on the approved Construction Plans or in such other locations as may
p be approved by the City Manager from time to time;
y S
-33-
0
the non-exclusive right and easement (the "Developer
i
Vehicular Access Easement") for the unobstructed access by service and
emergency vehicles to and from the Leased Property (x) to Biscayne
Boulevard, (y) over and across Port Boulevard to Biscayne Boulevard and (z)
over and across the Park Site to Biscayne Boulevard (as Port Boulevard and
Biscayne Boulevard are now or hereafter constructed), in the location shown
therefor on Exhibit A-1 or such other locations as may be approved by the
City Manager from time to time. Should Port Boulevard or Biscayne
Boulevard not be immediately adjacent to the Leased Property or the Park
Site, the area of land and related improvements permitted to be used as
the Developer Vehicular Access Easement shall include any strips of land
separating Port Boulevard or Biscayne Boulevard from either the Leased
Property or the Park Site;
(iii) the non-exclusive right to use portions of the Park Site in
common with the public, subject to the City's right to restrict areas in
the Park Site for reasonable periods during special events, for the
unobstructed pedestrian access to and from the Leased Property by Developer
and the Subtenants and their respective concessionaires, licensees,
officers, employees, agents, customers and invitees to all of the Park Site
now and hereafter existing including, but not limited to the baywalks,
sidewalks, playgrounds and other open spaces;
(iv) the non-exclusive right (but subject, nevertheless to
i
Developer's first having obtained any permits or licenses required by law
or applicable regulation), to use portions of the Park Site for the
,i
staging of promotional events designed to attract patrons or customers to
the area at whatever is the then current charge for such use;
8S`9�1
- 34 -
s
J
x
(v) the right and easement to install and maintain such
footings and underground supports along the boundaries of the Leased
Property extending not more than six (6) inches under and into the Park
Site, as shall be necessary in connection with the construction of the
Improvements and as shall be shown on the approved Construction Plans;
( vi ) the right and easement to enter onto those portions of the
Park Site adjacent to the Leased Property for the purpose of performing
maintenance and repairs to the Improvements;
(vii) non-exclusive rights and easements for installation,
maintenance, repair and replacement of utility facilities and for
pedestrian and vehicular access to and from Area A-4 and/or Area A-5 over
and across the Park Site to the Leased Property and to Biscayne Boulevard,
at such locations as may be approved by the City Manager from time to time;
(viii) non-exclusive right and easement for pedestrian access
between the FEC Tract and the Leased Property at such locations as may be
approved by the City Manager, from time to time;
(ix) non-exclusive right and easement between the Garage Parcel
and the Leased Property and between the Park Site and Leased Property for
the construction, installation use and maintenance of pedestrian bridges
at locations shown on the Construction Plans or at such other locations as
the City Manager may approve from time to time. The cost of maintenance,
care and replacement of pedestrian bridges between the Leased Property and
Parking Garage shall be shared equally by the Developer and the lessee
under the Parking Garage Ground Lease. In the case of pedestrian bridges
between the Leased Property and the Park Site, Developer shall design the
Improvements for attachment of the pedestrian bridges. The cost of
construction, repair, replacement and maintenance of such pedestrian
- 35 -
bridges shall be borne by Developer and the City shall have a right to approve
the design of the pedestrian bridges, which approval shall not be unreasonably
withheld.
It is the intent of this Agreement that the Developer Improvements be
confined to the limits of the Leased Property.
(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:
(1) with respect to the County Easement and the Developer
Utility Easement, except to the extent shown on the approved Construction
Plans, no building or other structure shall be erected on the surface of
same without the prior written consent of the City, except that Developer
may place or construct street furniture, kiosks, or other removable
structures in any such area on the Leased Property, provided Developer
shall promptly remove the same, at its expense, upon the City's or
appropriate utility's request in order to permit the City or utility to
perform maintenance services on the utility lines in the easement area,
provided that in the design and construction of the Developer
Improvements, Developer will use its diligent efforts to cluster
underground utility lines and to minimize other construction below the
surface of the easement area;
(2) With respect to the portion of the City Storm Sewer Easement
area which may lie directly beneath the Developer Improvements, the City
and Developer agree, within a reasonable time period from the date hereof,
to enter into an easement agreement governing the use, maintenance, repair
and replacement of the utilities within such easement area in order to
provide Developer with sufficient assurances of the use and enjoyment of
that portion of the Developer Improvements affected thereby. 8 S-901r.-Iol l
-36-
0E-73
I
i
(3) the party having the benefit of any such easements (A)
1 shall carry on any construction, maintenance and repair activity with
diligence and dispatch and shall use its diligent efforts to complete the
same in the shortest time possible under the circumstances, and (8) 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, and, except in the case of the County
i
Easement, in carrying on such activities, will do so in such a manner as
i
not to unreasonably interfere with business or businesses then being
conducted in the Improvements or on the Leased Property by Developer or
t
its Subtenants. City shall use its diligent efforts to obtain approval of
Dade County to the foregoing provision with respect to the County Easement;
(4) except in the event of emergency, the party having the
benefit of such easement shall not carry on any construction, replacement,
maintenance or repair activity at any time in such easement area unless
such party shall have given at least sixty (60) days advance notice to the
other party of its intention to do so; provided, however, that in the
event of an emergency affecting the County Easement the City will use
diligent efforts to obtain the consent of the Dade County Water and Sewer
Authority to such notice requirements;
(5) 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;
(6) Developer and City agree to enter into an easement
agreement governing the use, maintenance, repair and replacement of the
w City Storm Sewer Easement, and any other utility easement area which may
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be located under the Improvements within a reasonable time period f rom the
date of this Lease in order to provide the Developer with sufficient
assurances with respect to the use and enjoyment of that portion of the
` Improvements affected thereby; and
(7) with respect to the Developer Vehicular Access Easement,
the City may from time to time, erect signs, temporary barriers or other
i
reasonable traffic controls designed to limit the use of the easement
areas to service and emergency vehicles.
Annexed hereto as Exhibit J is a list of drawings showing all easements
affecting the Leased Property, which survey has been reviewed by the Director
of Public works of the City of Miami and found by him to be accurate.
(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
aeliver 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
oesirable. The City Manager is hereby authorized and empowered on behalf of
the City to execute and deliver, from time to time, any such confirmatory
documents or instruments.
Section 2.4 Title of Leased Property. The City represents,
covenants and warrants that it has good and merchantible fee simple title to
the Leased Property and all of the improvements thereon, which title is free
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be located under the Improvements within a reasonable time period from the
date of this Lease in order to provide the Developer with sufficient
assurances with respect to the use and enjoyment of that portion of the
improvements affected thereby; and
(7) with respect to the Developer Vehicular Access Easement,
the City may from time to time, erect signs, temporary barriers or other
reasonable traffic controls designed to limit the use of the easement
areas to service and emergency vehicles.
Annexed hereto as Exhibit J is a list of drawings showing all easements
affecting the Leased Property, which survey has been reviewed by the Director
of Public Works of the City of Miami and found by him to be accurate.
(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
r�
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
)
aesirable. The City Manager is hereby authorized and empowered on behalf of
the City to execute and deliver, from time to time, any such confirmatory
documents or instruments.
Section 2.4 Title of Leased Property. The City represents,
covenants and warrants that it has good and merchantible fee simple title to
the Leased Property and all of the improvements thereon, which title is free
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and clear from all covenants, easements, liens, clouds of title on other
restrictions except for those listed in Exhibit E.
Section 2.5 Rental.
(a) Rentals Payable. Developer covenants and agrees to pay the City
as rental ("Rental") for the Leased Property, the following:
(i) During the Original Term, an annual sum (the "Annual Basic
Rental") equal to the greater of:
(1) Thirty-five (35%) percent of Net Income Available for
Distribution of the Project; or
(2) The Minimum Base Rental for each Rental Year, as
follo s:
FULL RENTAL YEARS
1-2
3-6
7-35
36-45
MINIMUM BASE RENTAL
$ 325,000
$ 650,000
$190009000
As determined below
Notwithstanding the above, if in any given Rental Year, 35% of Net
Income Available for Distribution is less than the Minimum Base Rental, the
cifference snall be credited to the Developer in an account known as the
"Cumulative Credit Balance Account" which credit shall accrue interest at
4
eleven (11%) percent, compounded annually. The maximum amount to be credited
to the Cumulative Credit Balance Account in any Rental Year shall be no
greater than the Minimum Base Rental for that Rental Year. In any subsequent
Rental Year for which a credit balance exists in the Cumulative Credit Balance
;a
Account, the Rental due to the City, shall be reduced, to not less than that
Rental Year's Minimum Base Rental, by an amount applied from the remaining
credit balance in the Cumulative Credit Balance Account. This procedure shall
continue each Rental Year until the credit balance in the Cumulative Credit
a
Balance Account is reduced to zero. Further, the Minimum Base Rental may, at
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the City's option, be increased to an amount in excess of $1,000,000 at the
beginning of the thirty-sixth (36th) Rental Year if the average of the Annual
Basic Rental paid during the preceding three (3) Rental Years shall exceed
$1,000,000, in which event the Minimum Base Rental for the thirty-sixth
through forty-fifth Rental Years shall be the average of the Annual Basic
Rental paid by Developer for the thirty-third, thirty-fourth and thirty-fifth
Rental Years.
(ii) During each Renewal Term, an annual sum equal to the
greater of:
(1) The average of the Annual Basic Rental paid during the
three (3) consecutive Rental. Years prior to the end of the Original
Term or the preceding Renewal Term, as the case may be and shall, at
the City's option, be the New Minimum Base Rental, or
(2) Thirty-five (35%) percent of the Net Income Available
for Distribution;
provided, however, that in no event may such annual rent during (i) the First
Renewal Term be less than the Minimum Base Rental payable during the final
year of the Original Term, and (ii) the Second Renewal Term be less than the
Minimum Base Rental payable during the final year of the First Renewal Term.
(iii) Developer shall pay during the Original Term and any Renewal
Term to the City as Additional Base Minimum Rental an additional sum of
Fifty Thousand Dollars ($50,000) per Rental Year ("Area A-5 Minimum
Rental") upon occupancy of Area A-5 pursuant to Section 2.1 hereof.
(iv) Pursuant to the terms of the License, the City is obligated
to pay Miami MotorSports, Inc. the amount of $100,000 as consideration for
the granting of the Removal Option (hereinafter defined) by Miami
MotorSports, Inc. Developer agrees to pay said $100,000 to the City on
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the Possession Date. Such amount when paid by Developer shall be credited
to the Cumulative Credit Balance Account. Developer and the City further
agree that (i) Developer shall have the right to cause the City to exercise
the Removal Option during the years 1986, 1987 and 1988, inclusive, by
giving notice in writing to same within forty-five (45) days after the
previous year's Race Event, provided that Developer shall pay to the City
1
$50,000 each time Developer shall cause the City to exercise the Removal
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Option. The parties further agree that Developer shall pay $50,000 to the
City with respect to each time the City shall exercise the Removal Option
as to any Race Event which is scheduled to occur while the Bayside
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Specialty Center is under construction, notwithstanding the fact that
Developer shall not have caused the City to exercise same. Developer shall
pay such sums to the City upon each date that the City is required to pay
Miami MotorSports, Inc. with respect to same. If Miami MotorSports, Inc.
shall not conduct a Race Event with respect to any year for which Developer
snall have paid the City $50,000 as aforesaid, the City shall promptly
reimburse Developer said $50,000 and such sum shall be deducted from the
Cumulative Credit Balance Account. All sums paid by Developer pursuant to
_
this subparagraph 2.5(a)(iv) shall be credited to the Cumulative Credit
Balance Account.
As used herein, the term "Removal Option" shall mean the right granted
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to the City in the License to require that the annual Grand Prix Race Event be
on a course located on Biscayne Boulevard and not located in any portion of
Bayfront Park.
(b) Continuous Operation. Developer covenants and agrees to
continuously operate the Project consistent with prudent business practices and
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the standards of operation set forth in Section 4.2 hereof (considering twelve
(12) month use) in order to achieve a reasonable level of profitability.
(c) Payment of Rental. Annual Basic Rental shall commence to accrue
on the Rent Commencement Date. The Area A-5 Minimum Rental shall commence
when the Subtenant thereof or the Developer shall open such premises to the
public for business (the "A-5 Rental Commencement Date"). Minimum Base Rental
and Area A-5 Minimum Rental shall be payable in equal monthly installments in
advance on the first day of each full calendar month following the Rent
Commencement Date, as the case may be, during the term of this Lease, the
first such payment to include also any prorated Minimum Base Rental for the
period from the Rent Commencement Date and/or the Area A-5 Rental Commencement
Date to the first day of the full calendar month thereafter. Annual Basic
Rental in excess of Minimum Base Rental shall be determined each calendar
quarter and annually pursuant to the reports required under Section 2.5(e).
To the extent that Annual Base Rental for any calendar quarter may exceed
Minimum Base Rental for the same period, Developer shall pay the City the
difference forty-five (45) days after the close of each calendar quarter with
an adjustment to occur based upon each Rental Year one hundred twenty (120)
days after each Rental Year. Annual Basic Rental shall be payable without
notice or demand therefor and shall be paid to the City at the Office of the
Director of Finance, 3500 Pan American Drive, Miami, Florida 33133 or at such
other place as the City Manager shall designate from time to time in a notice
given pursuant to the provisions of Section 12.5. Any late payment shall
automatically accrue interest at a rate equal to two (2) percent above that
rate charged by the Citibank, N.A., of New York to its best commercial
customers, generally referred to as its prime rate ("Default Rate") from the
date that payment was due. Any overpayment of Annual Basic Rental at the end
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s of each Rental Year shall be paid to Developer within thirty (30) days of
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receipt of such report or, at the option of Developer, the Developer shall
credit such amount to the Rental due in the next Rental Year. If there is an
underpayment of Annual Basic Rental, Developer shell pay the City the amount
of the aeficiency within thirty (30) days of the City's receipt of the report.
(a) Refinancing. In the event that Developer proposes to engage in
any Refinancing with respect to the Project or any portion thereof, Developer
shall give notice thereof to the City Manager not later than forty-five (45)
days prior to the consummation of the transaction or transactions by which
such Refinancing is accomplished. Such notice shall show, in reasonable
detail, Developer's base estimates of the amount of the Refinancing Proceeds
and the expected affect of such Refinancing upon Rental and Net Income Avail-
able for Distribution for three (3) full Rental Years next following consum-
mation of such Refinancing. Within thirty (30) days after such notice is
given, the City shall elect, by giving notice of such election to the
Developer, either:
(i) to participate in such Refinancing, in which case the
jeveloper shall pay or cause to be paid to the City, upon consummation of such
Refinancing, an amount equal to thirty-five percent (35%) of the Refinancing
Proceeds less any amounts then in the Cummulative Credit Balance Account and
thereafter Rental payments shall be determined by adjusting Debt Serv:ca
Payments and Developer's Equity Investment to reflect such Refinancing; or
(ii) not to participate in such Refinancing, in which case (x)
no portion of such Refinancing Proceeds shall be payable to the City and Rental
�
with respect to such portion of the Project that is refinanced shall
} thereafter be determined in the same manner as prior to such Refinancing (that
is to say that in the determination of Rental with respect to such portion of
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the Project that is refinanced, Debt Service Payments and Developer's Equity
Investment with respect thereto shall not be adjusted so as to reflect such
Refinancing, but shall continue on the same oasis as P11V1 lV
Refinancing), and (y) with respect to any subsequent Refinancing, Refinancing
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Proceeds shall be calculated as though such prior Refinancing shall not have
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occurred. If the City shall fail to make such election within said thirty (30)
day period, the City shall be deemed to have elected to not participate in such
Refinancing.
(e) Developer's Records. For the purpose of permitting verification
by the City of any amounts due on account of Annual Basic Rental, Developer
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will keep and preserve for at least three (3) years in Dade County, Florida,
at the address specified in Section 12.5, auditable original or duplicate books
and records for the Project which shall disclose all information required to
determine Development Costs, Annual Basic Rental, Operating Contributions and
Operating Expenses and other information necessary to comply with the terms of
this Agreement. After five (5) days advance notice to Developer, the City
through its City Manager or his designee, shall have the right during business
hours to inspect such books and records and to make any examination or aud-11-
thereof which the City may desire. If such audit shall disclose a liability
for Rental in excess of the Rental theretofore paid by Developer for the period
in question, Developer shall promptly pay such additional Rental and if such
audit shall disclose an overpayment of the Rental theretofore paid, the City
shall promptly return the excess to the Developer.
Developer further covenants and agrees to deliver to the City
commencing as of the Rent Commencement Date within forty-five (45) days after
the close of each calendar quarter and after the termination of the Lease, a
statement showing, in reasonable detail, the computation of the Annual Basic
85-9144,1011
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the Project that is refinanced, Debt Service Payments and Developer's Equity
Investment with respect thereto shall not be adjusted so as to reflect such
Refinancing, but shall continue on the same basis as prior to such
Refinancing), and (y) with respect to any subsequent Refinancing, Refinancing
Proceeds shall be calculated as though such prior Refinancing shall not have
occurred. If the City shall fail to make such election within said thirty (30)
day period, the City shall be deemed to have elected to not participate in such
Refinancing.
(e) 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 Section 12.5, auditable original or duplicate books
and records for the Project which shall disclose all information required to
determine Development Costs, Annual Basic Rental, Operating Contributions and
Operating Expenses and other information necessary to comply with the terms of
this Agreement. After five (5) days advance notice to Developer, the City
through its City Manager or his designee, shall have the right during business
hours to inspect such books and records and to make any examination or audit
thereof which the City may desire. If such audit shall disclosE a liability
for Rental in excess of the Rental theretofore paid by Developer for the period
f
in question, Developer shall promptly pay such additional Rental and if such
audit shall disclose an overpayment of the Rental theretofore paid, the City
V
shall promptly return the excess to the Developer.
1
Developer further covenants and agrees to deliver to the City
A
commencing as of the Rent Commencement Date within forty-five (45) days after
the close of each calendar quarter and after the termination of the Lease, a
statement showing, in reasonable detail, the computation of the Annual Basic
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Rental, Area A-5 Minimum Rental, Operating Contributions, Operating Income,
Operating Expenses and Net Income Available for Distribution for the preceding
calendar quarter. The quarterly statement shall be signed and verified by an
appropriate, authorized officer or General Partner of Developer stating
specifically that such officer has examined the report, that such officer's
examination included such tests of Developer's books and records as such
s officer considered necessary under the circumstances, and that such report
presents fairly the Rental due with respect to the preceding calendar
quarter. If Developer shall fail to deliver the foregoing statement to the
City within said period, or the City shall give written notice of its desire
to audit the quarterly statements the City shall have the right to either
conduct an audit itself or to employ an 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 calendar quarter. 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 a quarterly
report by Developer or if the City audits the quarterly report at its own
initiative and demonstrates a discrepancy of more than three percent (3%) in
the amount of Annual Basic Rentals due to the City.
Developer shall provide the City with an annual Audited Financial
Statement, certified by an independent Certified Public Accountant, within one
hundred twenty (120) days after the close of each Rental Year which shall be
suoject to the audit provisions of the previous subparagraph.
(f) Pre -Construction Contributions. At the times set forth below,
Developer shall pay to the City Three Million Six Hundred Fifty Thousand
($3,650,000) Dollars in the form specified below as Additional Rental, which
amount shall be recognized as a part of the Development Costs. These payments
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shall be retained by the City if this Lease is terminated (and a new lease has
not been entered into pursuant to subparagraph 6.1(c)(ix) below) by reason of
an Event of Developer Default. Said payment shall be in addition to any
damages that the City may be entitled to under this Agreement provided,
however, that such payment may constitute an offset against any damages a
court or the Arbitrators may award the City in connection with such Event of
Developer Default. The City covenants and agrees to use these funds in
Oulfillment of the purposes for which the funds are given, as specified below,
so long as as an Event of Developer Default has not occurred and is continuing
ender the terms of this Agreement.
$1 Million To be paid to the City on the Possession Date,
such proceeds to be used by the City for
construction of improvements in Bayf ront Park.
$2.65 Million To be paid to the City on the Possession Date,
such funds to be paid to the City as reimbursement
with respect to the acquisition of all
outstanding rights in the Restaurant Parcel so
that same can be delivered to Developer on the
Possession Date, free and clear of any rights of
others except as set forth in Exhibit E provided,
however, that on the Possession Date, all
references contained in Exhibit E to any leases,
licenses (except with respect to the Grand Prix
Agreement, if applicable), or other occupancy or
possessory agreements with respect to the
Restaurant Parcel shall be deemed deleted.
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The Developer shall not be obligated to deliver such letter of credit
or make such payment if Developer is not reasonably satisfied that the City
shall have budgeted and encumbered the amount of Four Million and No/100ths
9
Dollars ($41000,000.00) by Ordinance of the City Commission, authorizing the
City Manager to pay such monies in fulfillment of this Agreement, and
encumbered in the City's account or accounts. The City hereby agrees to pay
such monies to Developer to pay the cost of the Tenant Allowance items to be
constructed by Developer pursuant to a construction progress schedule and
disbursement agreement to be agreed upon between the City and Developer.
Notwithstanding the foregoing, Developer shall not be obligated to
make -ie above -mentioned $2,650,000 payment until Developer has received
satisfactory evidence that all rights of any person or entity other than the
Developer or the City with respect to the Restaurant Facilities or any
benefits have terminated and are no longer in force and effect including any
encumbrances or exclusivity clauses which would adversely effect the
Developer's use and any of Leased Property and the Improvements. Such evidence
shall include (without limitation) copies of all executed documents relating
to such terminations and a title report prepared at Developer's cost,
inoicating any such interests or restrictions no longer exist.
Section 2.6 Covenants for Payment of Public Charges by Developer.
Developer, in addition to the Rental, covenants and agrees to pay and
discharge, before any fine, penalty, interest or cost may be added, all real
and personal property taxes, all ad valorem real property taxes, all taxes on
rentals payable hereunder and under subleases, public assessments and other
public charges including but not limited to electric, water and sewer rents,
rates and charges (all such taxes, public assessments and other public charges
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being hereinafter referred to as "Public Charges") levied, assessed or imposed
by any public authority against the Leased Property, including all
improvements thereon, provided, that Developer's obligation to pay and
discharge Public Charges levied, assessed or imposed against or with respect
to Leased Property shall not commence until the Possession Date.
Notwithstanding the provisions of this Section 2.6, Developer shall have the
right to contest the amount or validity, in whole or in part, of any Public
Charges by appropriate proceedings. The City agrees to consent to and/or
formally join in any such proceedings to the extent it may be allowed by law,
if such consent and/or joinder be required by law for the prosecution
thereof. Developer shall pay all charges for 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 ad
valorem real property taxes) against the Leased Property or the Improvements
with respect to the construction, operation, repair and maintenance of any
improvements the City is obligated to construct pursuant to this Lease or any
special assessment or other Public Charges for the purpose of repayment of the
Tenant Allowances to be granted by the City pursuant to the terms hereof or
repayment of UDAG. The City retains all its rights to impose special
assessments or other public charges for all other purposes.
Developer, upon written request, shall furnish or cause to be
furnished, to the City Manager, official receipts of the appropriate taxing
authority, or other proof satisfactory to the City Manager evidencing the
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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 Developer
Maintenance Area on Exhibit K. Developer and City may enter into an agreement
requiring the City to provide such security and protection within the
Developer Maintenance Area on Exhibit K. If the City and Developer are unable
to enter into such agreement, the Developer shall be responsible for providing
security and protection throughout the Developer Maintenance Area.
The City shall provide the same security and police protection for
the Park Site and the City Maintenance Area as is afforded all other City open
spaces with appropriate augmentation in the exclusive judgment of the City
Manager during periods of high pedestrian activity including Nithout
limitation) during special public events.
Section 2.9 City Improvements. The City shall provide phased
replacement of seawalls ai,d riprap, construction of a bay walk with infill arld
water taxi piers adjacent to the Leased Property and infill to Bayfront Park
and the Leased Property as more particularly described in the plans for the
City Improvements. Such improvements are collectively referred to throughout
this Lease as "City Improvements".
Section 2.10 Condition of Leased Property. On the Possession Date
the City shall deliver to the Developer possession of the Leased Property and
the existing improvements, free of any and all tenancies or other rights or
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claims of rights to its use and occupancy. Prior to the Possession Date, the
Leased Property and the Existing Improvements shall be maintained by the City
and delivered to Developer in good serviceable condition, ordinary wear and
tear excepted. The City agrees not to adversely or materially alter the
Leased Property or any Existing Improvements prior to the Possession Date
without Developer's prior written approval.
The obligations of Developer under this Lease (including, without
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limitation, the obligations to pay Rental hereunder) are subject to the
delivery in good and serviceable condition (ordinary wear and tear excepted)
to the Developer on the Possession Date of the Leased Property and Improvements
located thereon as of the date of this Lease, including (without limitation)
the restaurant building and improvements ("Restaurant Facilities") located on
that portion of the Leased Property (the "Restaurant Parcel") more
particularly described in that certain lease agreement dated May 5, 1970 by
and between the City and Restaurant Associates Industries, Inc. ("Restaurant
Lease"), which is shown on Exhibit A-1. If at any time between the date of
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execution of this Agreement and the Possession Date the Restaurant Facilities
are substantially damaged or destroyed, the City shall, at Developer's option,
wnich option must be exercised in writing within ninety (90) days from date of
such damage or destruction or from the Possession Date, as the case may be,
(i) immediately repair and restore the Restaurant Facilities, or (ii)
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immediately assign to Developer all of the City's right, title and interest in
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any payment, proceeding or award by any insurance company or other person on
account of the damage or destruction.
If the insurance proceeds either available to the City or Developer
are inadequate to complete the repairs and restoration of the Restaurant
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Facilities, the City or the Developer, as the case may be, shall repair or
restore to a size smaller than that existing prior to such damage and
destruction based upon plans and specifications approved by the City, which
approval shall not be unreasonably withheld or delayed if such reconstructed
facilities harmonize with the architectural motif of the Developer
Improvements and meet all other governmental approvals required.
Section 2.11 Roadways and Utilities. The City shall without
expense to Developer or public assessment against the Leased Property or
Improvements, 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, except for the County
Easement and the City Storm Water Easement, and the transfer to Developer of
all vacated City streets. The City shall also transfer to Developer all
easements and rights .of way at the Leased Property within its control. All
termination, abandonment, transfer and relocation, as applicable, to be done
shall be =one or performed in accordance with provisions of this Section 2.11
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 Developer
Improvements.
After the date Developer actually takes possession of the Leased
Property, Developer shall provide temporary access across the Leased Property
for persons authorized to use Miamarina, until the earlier to occur of (i) the
commencement of construction of the Developer Improvements or (ii) the termi-
nation of the agreement dated June 4, 1981 between the City and New World
Marinas, Inc.
ARTICLE III
CONSTRUCTION OF IMPROVEMENTS
Section 3.1 Conformity of Plans. Preliminary Plans and Construc-
tion Plans and all work by Developer with respect to the Leased Property and
the construction of Developer Improvements thereon shall be in conformity with
this Agreement, the Miami Charter and Code, the South Florida Building Code,
and all other applicable state, county and 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 F.
Developer shall submit to the City Manager at the times hereinafter set forth,
two sets of plans (the "Preliminary Plans"). For the purpose of this Lease,
"Preliminary Plans" shall consist of site plans and structure elevations and
sufficient detail to show site planning, architectural design and layout,
materials, Cuilding 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 phase until the City
Manager has approved a Site Drawing depicting all phases of the Development
and has approved the Preliminary Plans for the particular phase for which a
permit or other formal governmental approval is requested.
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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
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Exhibit G. Upon receipt of each set of Preliminary Plans representing a
certain stage of construction, the City Manager shall review the same and
shall promptly (but in any event within fifteen (15) days after such receipt),
give Developer notice of its approval or disapproval setting forth in detail
its reasons for any disapproval. The City Manager's right to disapprove the
Preliminary Plans submitted shall be limited to matters depicted in the
Preliminary Plans for Developer Improvements which do not conform substantially
to the Concept Plans or previously approved Preliminary Plans for other stages
of the Project or are new elements not presented in the Concept Plar;, or
matters which are violations of this Lease or of applicable governmental
ordinances, codes, plans, laws or regulations.
4
If no response from the City is delivered to Developer within thirty
(30) days after the submission of such Preliminary Plans, or any resubmission
thereof as nereinafter 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 sixty (60) 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
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Developer Improvements which meet all of the grounds for disapproval of which
the City Manager has given notice not later than the first anniversary of the
date of this Lease. City and Developer shall in good faith attempt to resolve
any disputes concerning the Preliminary Plans.
Section 3.3 Construction Plans. For the purpose of this Lease,
"Construction Plans" shall consist of final working drawings and specifications
including (without limitation) the following information: (a) definitive
architectural drawings; (b) definitive foundation and structural drawings (the
"Final Substructure Plans"); (c) definitive electrical and mechanical drawings
including (without limitation) plans for all lighting facilities affecting the
exterior appearance of the Developer. Improvements; and (d) final specifica-
tions; but excluding drawings and specifications relating to subtenant
improvements. Not later than one hundred twenty (120) 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 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 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 gov-
ernmental orcinances, codes, plans or regulations. If no response from the
City is delivered to Developer within fifteen (15) days after the submission
of such Construction Plans, or any resubmission thereof as hereinafter pro-
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vided, 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 sixty
(60) 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 Construc-
tion 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 Con-
struction Plans or Preliminary Plans pursuant to this Article shall relieve
Developer of any obligation it may have at law to file such Construction Plans
with any department of the City or any other governmental authority having
jurisdiction over the issues or to obtain any building or other permit or
approval required by law.
Developer acknowledges that any approval given by City Manager
pursuant to this Article III shall not constitute an opinion or agreement by
the City that the plans are structurally sufficient or in compliance with any
laws, codes or other applicable regulations, and no such approval shall impose
any liability on or waive any rights of the City.
Developer agrees that it shall provide the City with copies of all
plans ano specifications used in the construction of the Developer Improve-
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ments. 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
r
interest in the plans and specifications if this Lease is terminated by reason
of an Event of Developer Default and no new lease is entered into pursuant to
subparagraph 6.1(c)(ix) below.
Section 3.4 Facilities to be Constructed. Developer agrees to
erect the Improvements described in subparagraphs (a) through (f) of the third
paragraph of the Statement of Background and Purpose on the Leased Property,
at its sole cost and expense which Improvements shall contain the facilities
more particularly described in the Construction Plans and shall conform to the
covenants contained in Section 2.2 and are referred to throughout this Lease
as "Developer Improvements".
Section 3.5 Maintenance of Park Site and Leased Property The
City, without cost or expense to Developer or public assessments against the
Leased Property or the Improvements, at all times during the term of this
Lease, (including any Renewal Term and any new lease executed pursuant to the
provisions of Sections 6.1 and 6.2) shall maintain and keep or cause to be
maintained and kept in good order, repair and appearance, commensurate with the
quality of maintenance found in the area shown and designated as "Developer
maintenance Area" on Exhibit J all of the property and improvements (including,
without limitation, the City Improvements) in the Park Site and those portions
of the Leased Property shown and designated as "City Maintenance Area" on
Exhibit K.
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
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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 appear-
a
ante all of the property and improvements located in that portion of the Leased
Property shown and designated as Developer Maintenance Area on Exhibit J.
Section 3.6 Access. Prior to delivery of possession of the Leased
Property and the existing Improvements or any part thereof to Developer, the
City shall permit Developer access thereto whenever and to the extent
necessary to carry out the provisions of this Agreement. The City shall also
permit, including (without limitation) the placement of construction trailers
and staging area on or adjacent to the Leased Property at no cost to the
Developer, and the mooring of construction barges or other vessels at
Miamarina or the adjacent docks at locations reasonably acceptable to the City
Manager and Developer, at reasonable fees or charges to the Developer. The
provisions of this paragraph shall not take effect until Developer, at its
sole cost and expense, shall have secured or caused to be secured
comprehensive general public liability insurance as required in Article IX of
this Agreement.
Section 3.7 Construction Period. Developer shall commence
construction of the Developer Improvements not later than fifty-five (55) days
after the Possession Date or as soon thereafter as weather permits (but not
i
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
The City agrees to submit Preliminary Plans and Construction Plans for
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City Improvements to Developer for review and comment for any City Improvements
to be designed by City. The City shall commence construction of the City
Improvements and shall complete the same substantially in accordance with the
City's approved Construction Plans in accordance with Exhibit G. At the
request of either party, the parties will execute and deliver from time to
time such certificates, documents or instruments as may be appropriate to
confirm the dates of commencement or completion of construction as above
provided, which certificates, documents or instruments may be recorded by the
party requesting the same at its expense.
Section 3.8 Progress of Construction. Subsequent to the delivery
of possession of the Leased Property. and existing Improvements 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
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with a copy of all results. The City makes no warranty as to subsoil
conoitions. 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.
Section 3.9 Certificate of Final Completion. Promptly after
completion of the Developer Improvements on the Leased Property in accordance
with the provisions of this Agreement, the City Manager will furnish Developer
with an appropriate instrument so certifying (the "Certificate of Final
Completion"). The Certificate of Final Completion shall be in such form as
will enable it to be recorded among the Land Records of Dade County. If the
City Manager shall refuse or fail to provide such certification in accordance
herewith the City Manager er shall within thirty (30) 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 the Agreement, or is
otherwise in default, and what measures and acts, in the opinion of the City
Manager, are necessary for Developer to take or perform in order to obtain
such certification.
Section 3.10 Connection of Building to Utilities. Developer, at
its sole cost and expense, will install or cause to 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
Oace County water and Sewer Authority. Developer shall pay for the additional
cost, if any, of locating and installing new facilities for sewer, water,
electrical, ano other utilities as needed to service the Project.
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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
Cone 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 hall change such that the City Manager shall not have the
full authority to perform the obligations imposed on that office envisioned
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under this Lease, then the City shall, promptly upon request of the Developer,
P ,
designate such other officer or department as may be appropriate to perform
the City Manager's obligations.
Developer shall secure and pay for any and all permits and approvals
necessary for proper construction and completion of the Developer Improvements
with the exception of the permits and approvals required pursuant to Section
360.J6, Florida Statutes and/or Chapter 33A of the Dade County Code, if any
(the "Environmental Laws"). Developer shall secure any and all permits and
s approvals, except for the Environmental Laws, 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.
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In connection with the satisfaction of any requirements imposed by
the Environmental Laws the City agrees to pursue a Binding Letter of
Determination pursuant to Section 380.06(4)(a), Florida Statutes and/or a
Developers Agreement pursuant to Rule 9B-16.18, Florida Administrative Code
and/or a Development Order pursuant to Section 380.06, Florida Statutes and/or
any other good faith means designated by the City to satisfy such
requirements. Should the City pursue a letter of interpretation or other Dade
County Development of County Impact process for any portion of the Leased
Property, the City shall be financially responsible for filing and processing
any necessary documentation submitted in connection therewith, provided,
however, that nothing herein contained shall be construed to require the City
or Developer to take any act or expend any funds in order to comply with any
of the conditions contained within any Development Order, or other official
action, issued as a result of these pursuits. Developer shall have the right
to review and approve any such documentation prior to its submission to the
relevant governmental agency, and shall be notified of all meetings with
governmental staff or officials related to the processing of any of the
aforesaid administrative proceedings so that Developer or its representative
shall nave the option of attending such meetings. Developer agrees to
cooperate with the City to the maximum extent possible in these administrative
proceedings, including, but not limited to, providing such technical
assistance and information as Developer may have reasonably available to
s
contribute to the City's efforts.
Section 3.12 Compliance with Laws. Developer will comply in every
respect with any and all federal, state, county and municipal laws,
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ordinances, rules, regulations, orders and notices now or hereafter in force
or issued which may be applicable to any and all of the work or operations to
be done, performed or carried on by Developer under the provisions of this
Agreement including alterations and renovations pursuant to Section 3.15 of
this 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 Requirements. The times within
which Developer must submit Preliminary Plans, Construction Plans and evidence
of equity capital and commitments for -mortgage financing, and the times within
which Developer must commence and complete the development of the Leased
Property and the construction of the Developer Improvements thereon as
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
ano 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,
provided, however, that no renovation or alteration which affects the exterior
appearance of the Improvements or substantially affects the overall character
and appearance of any interior mall, court or public circulation area shall be
made until such time as the City Manager shall have approved definitive
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construction plans and specifications therefore, which approval shall not be
unreasonably withheld or delayed. Developer must secure and pay for any and
all permits and approvals required to perform any of the contemplated
alterations or renovations.
Section 3.15 Art in Public Places. The Developer shall utilize 1/2
of 1 percent of all Developer construction funds ("hard -cost" line items only)
for art in the public areas of the Leased Property. In addition, Sixty
Thousand and No/10Oths Dollars ($60,000.00) of the $4,000,000 to be paid by
the City in respect of the Tenant Allowance must be utilized for art in the
public areas of the Leased Property pursuant to Ordinance No. 8227.
ARTICLE IV
LAND USES
Section 4.1. Land Uses. Developer and the City agree, for
themselves and their successors and assigns, to devote the Leased Property,
and the Park Site to the uses specified in this Agreement and to be bound by
and comply with all of the provisions and conditions of this Agreement.
Section 4.2. Character and Operation of Improvements. The parties
recognize and acknowledge that the manner in which the Leased Property and
improvements are developed, used and operated are matters of critical concern
to the City by reason of W the prominence of the location in Bayfront Park
to the Leased Property, and (ii) the impact which the development of the
Leased Property is expected to have upon the surrounding Park Site and upon
the economic development of the downtown area of the City. In order to give
the City assurance as to the manner in which the Project will be used and
f3.r3"9n
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•
operated, Developer agrees that at all times during the term of this Lease,
Developer will use its diligent efforts to operate the Project as a first
class Waterfront Specialty Center and to maintain a level of quality of
character and operation of the Project which is comparable to the level of
quality of character and operation, at the time of execution and delivery of
this Lease, to Harborplace in Baltimore.
From time to time Developer will establish such reasonable rules and
regulations governing the use and operation by Subtenants of their premises as
Developer shall deem necessary or desirable in order to assure the level of
quality and character of operation required herein; and it will use all
reasonable efforts to enforce such rules and regulations.
Notwithstanding the foregoing, Developer shall be bound by the
covenants and agreements set forth in this Section 4.2 only so long as the
development, use, operation, security and maintenance by the City of the Park
Site shall be of a comparable level of quality and character commensurate with
f
th-e quality and character of the Project.
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 or any part thereof or
any interest therein, or any contract or agreement to do any of the same;
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any transfer of the stock of the General Partner of
Developer or of any Owner, other than an Owner whose shares are publicly
traded; or
(iii) any merger, consolidation or sale or lease of all or
substantially all of the assets of Developer or of any Owner, other than
an owner whose shares are publicly traded.
(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,
airectly or indirectly, legally or beneficially, one percent (A) 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,
oirectly or indirectly, legally or beneficially, more than fifty percent
(50%) of the stock of the General Partner of Developer or other form of
ownership interest of any entity described in clause (i) or this clause
(ii), but shall not include any shareholder of an Owner whose shares are
publicly traded.
(c) "Owner whose shares are publicly traded" means an Owner:
(i) who has filed an effective registration statement with the
Securities & Exchange Commission (or its successor) with respect to the
snares of any class of its voting stock or of all classes of any other
form of ownership interest which includes voting rights; and
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(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 of the
Bayfront Park possible; and
(c) The fact that a transfer of the stock of the General Partner of
Developer or a substantial part thereof, or any other act or transaction
involving or resulting in a significant change 'in the ownership or
distribution of such stock or with respect to the identity of the parties in
control of Developer or the degree thereof, is for practical purposes, a
transfer or disposition of the leasehold interest in the Leased Property then
owned by Developer; the qualifications and identity of Developer and any Owner
are of particular concern to the community and the City. Developer further
recognizes that it is because of such qualifications and identity that the
City is entering into this Lease with Developer, and, in so doing, is further
willing to accept and rely on the obligations of Developer for the faithful
performance of all undertaking and covenants by it to be performed.
8S-92I
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 (j) 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 six (6) months after taking possession of the
Project, shall have entered into an Acceptable Operator's Agreement as
described in subsection 6(c)(iv) of this Agreement.
(c) Any Transfer directly resulting from a conveyance to a Lender/
Lanolord of the Developer's interest provided that such Transferee, within
thirty (30) days after taking possession of the Project, shall have entered
into an Acceptable Operator's Agreement as described in Subsection VI(c)(iv)
of this Agreement.
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(d) From and after the date that the Project has been in operation
i
for seven and one-half (7-1/2) years after the Opening Date, any Transfer to
(i) an Acceptable Operator consented to by the City Manager and City Com-
mission 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 Opera-
tors Agreement with an Acceptable Operator. If Developer shall dispute a
withholding of consent by the City pursuant to this subsection (d), Developer
may submit such dispute to arbitration pursuant to Section 10.5 hereof. The
basis for such arbitration shall be the reasonableness of the City Manager and
City Commission's decision as to whether or not such purchaser or operator met
the criteria herein set forth to qualify as an Acceptable Purchaser and/or an
Acceptable Operator.
(e) Any Transfer to a joint venture, general or limited partnership,
joint stock association or Massachusetts business trust, a substantial interest
in which is held by Developer and the other interests in which are held by an
Institutional Investor or by such other persons, firms, corporations, or other
entities as to which the City Manager shall have given his approval in his sole
discretion, provided that, within thirty (30) days after gaining possession of
the Project, the Transferee shall have entered into an Acceptable Operator's
Agreement as described in Subsection 6.1(c)(iv) of this Agreement.
(f) Any Transfer to an entity which is not an Owner, all of the
stock or other form of ownership interest of which is owned by an Owner.
(g) Any Transfer by a limited partner who is an Owner who is a Black
American or a Hispanic American to a Black American or a Hispanic American or
to an entity which is not an Owner but is owned or controlled by a Black
85-92I
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IV I
American or a Hispanic American immediately after such Transfer, which is
consented to by the City Manager and City Commission, 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 Devel-
oper or any general partner of Developer.
(i) Any Transfer by an Owner who is a limited partner of Developer
and who also is a Black American or Hispanic American into a charitable trust,
a blind trust or for estate planning purposes for the immediate family; pro-
vided, however, as to a Transfer by an Owner for estate planning purposes, the
effective control of ownership is to remain in the transferor or another Black
American or Hispanic American.
(j) Any Transfer of any limited partner's interest in Developer as
security for capital contribution loans made by another partner and any
Transfer of such limited partner's interest to a new entity or person which is
consented to by the City Manager or City Commission pursuant to subparagraph
(g) above, or to another partner of Developer as a result of default in
repayment of a capital contribution loan.
Any consent to a Transfer shall not waive any of the City's rights to
consent to a subsequent Transfer. Any Transfer made in violation of the terms
hereof shall be null and void and of no force and effect.
Section 5.4. Notice of Transfer; Information as to Shareholders.
(a) with respect to any Transfer which must be approved by the City,
Developer shall give or cause to be given to the City written notice (including
all information necessary for the City to make an evaluation of the proposed
Acceptable Operator according to the requirements of this Agreement) of any
Transfer of which Developer or its officers shall have knowledge, not less
IF`
0
than sixty (60) days prior to any such proposed Transfer and the City shall
within thirty (30) days of its receipt of such information, advise Developer
if it shall consent to same. If the City shall not consent to a Transfer, the
City Manager shall state the reasons for such disapproval in his notice to
Developer withholding his consent. If the City is not required to consent to
a Transfer pursuant to the terms hereof, Developer shall notify the City in
writing of same within thirty (30) days after the date of Transfer.
(b) Developer shall from time to time throughout the term of this
Lease as the City shall reasonably request, furnish the City with a complete
statement, subscribed and sworn to by the 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
adCresses and the extent of such interest as determined or indicated by the
records of Developer, by inquiry which such officers shall make of all parties
who on the basis of such records own a one percent (1%) or more ownership
interest in Developer or by such other knowledge or information as either of
such officers shall have. Notwithstanding the foregoing, the information
required by this subparagraph (b) shall not be required to be furnished with
respect to the shareholders of any Owner whose shares are publicly traded.
Section 5.5. Effectuation of Certain Permitted Transfers. No
Transfer of the nature described in subsections (d) and (e) of Section 5.3
shall be effective unless and until the entity to which such Transfer is made,
by instrument in writing satisfactory to the City Manager and in form
recoroable among the land records, shall, for itself and its successors and
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i 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 for the purposes of this Section 5.5 and Article VI hereof, that any
Lender or Lender/Landlord transferee, their successors and assigns, 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 Lender's or of such
transferee's (or such successor's or assignor'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 Property or the Improvements, or any part thereof, shall
whatever the reason, not assume such obligations or so agree, shall not
(unless and only to the extent otherwise specifically provided in this Lease
or agreed to in writing by the City) relieve such transferee or successor of
or from such obligations, conditions or restrictions, or deprive or limit the
City of or with respect to any rights, remedies or controls with respect to
the leasehold estate in the Leased Property or the construction of the
Improvements.
_ s
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
F
or suffer to be made or created any total or partial sale, assignment,
conveyance, mortgage, trust or power, or other transfer in any mode or form of
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or with respect to the City's reversionary interest in the Leased Property or
Improvements 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 Developer's and Lender'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 Lender.
Notwithstanding the foregoing, any mortgage or like encumbrance of the City's
interest shall be made expressly subject to the Lease and all Leasehold
Mortgages permitted hereunder.
Notwithstanding any such transfer and assumption, the City shall not
be released from its obligations pursuant to Sections 2.8 and 3.5, which
obligations are personal to the City and shall remain in effect during the
term of this Lease.
Section 5.7. Subletting. At the City's request, Developer shall
provide to the City a copy of all Subleases for the Project. Developer shall
incorporate in all Subleases provisions concerning rentals and expenses that
are compatible with the Annual Base Rental formula in this Agreement.
Developer shall have the right to enter into Subleases of any part of the
Leased Property or Improvements at any time and from time to time during the
term of this Lease with such Subtenants and upon such commercially reasonable
terms and conditions as Developer shall, in its sole discretion, deem fit and
proper, provided, however, that Developer shall not enter into any Sublease
with any Subtenant which does not deal with Developer at arm's length without
first obtaining the City's approval, which approval the City may in its sole
8S-941
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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 sixty (60) 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 sixty (60) days after submission of such Sublease and information, the
same shall be conclusively deemed to have been approved by the City.
Section 5.8. Minority Participation in Ownership. Developer agrees
that not less than twenty per:ant (20%) of the ownership interest in Developer
shall be held by persons who
are Black Americans
or Hispanic Americans or
entities who would qualify as
a Minority Business
Enterprise controlled by
Black Americans or Hispanic
Americans as the
term "Minority Business
Enterprise" is defined in that certain Minority
Participation Agreement
attached hereto as Exhibit H.
Notwithstanding any provision
in this Lease to
the contrary, any transfer by any limited partner of the Developer in
violation of Article V shall be null and void, but shall not be deemed to be
an Event of Developer's Default. Notwithstanding the foregoing, in the case
of a permitted Transfer of a limited partner's interest under subparagraph (j)
of Section 5.3., the Developer agrees that its partnership agreement shall
obligate the purchasing partner to resell the defaulting limited partner's
interest to another Black American or Hispanic American or entity owned or
controlled by a Black American or Hispanic American within two (2) years of
the initial transfer of the defaulting limited partner's interest if the
transfer is necessary to maintain the twenty percent (20%) ownership by Black
Americans or Hispanic Americans.
ARTICLE VI
MORTGAGE FINANCING; RIGHTS OF MORTGAGEE
Section 6.1. Leasehold Mortgage.
(a) Notwithstanding the provisions set forth in Article V hereof
regarding any Transfer, but subject to the provisions of this Article VI,
provided tnat an Event of Default has not occurred and is not continuing,
Developer shall have the right at any time and from time to time to encumber
the leasehold estate created by this Lease and any Improvements by Mortgage,
Sale-Suoleaseback 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 Develop-., by an Institutional Inves}jr (as defined below)
for the sole purpose of securing the financing of the construction of any -
Developer Improvements mace pursuant to the terms of this Lease or for the
long-term financing or refinancing of the Project. In no event may the amount
of such financing or refinancing exceed Development Costs. Developer shall
celiver to City promptly after execution by Developer a true and verified copy
of any Leasehold Mortgage (as defined below), or any Financing Sublease and
any amendment, modification or extension thereof, together with the name and
address of the owner and holder thereof. Developer may not encumber the
leasehold estate created by this Lease, or any Improvements as security for
any indebtedness of Developer with respect to any other property now or
hereinafter owned by Developer and/or The Rouse Company or by affiliates of
either of them, except that Developer may so encumber same as additional
security for a loan or loans granted to Developer in connection with the
Parking Garage.
I
(b) For purposes of this Article VI: "Institutional Investor" shall
4
mean any national bank organized under the laws of the United States or any
4
commercial bank, or any savings and loan• association, savings bank, trust
company or insurance company organized under the laws of the United States or
any state of the United States, or any pension, retirement or welfare trust or
fund supervised by a government authority of any state or the United States or
any such trust or fund administered by an entity which is supervised by a
governmental authority, and shall include any agent, designee or nominee of an
Institutional Investor which is wholly owned or controlled by such
Institutional Investor; "Leasehold Mortgage" shall mean a mortgage, deed of
trust or assignment of the rents, issues and profits from the Project, which
constitutes a lien on the leasehold estate created by this Lease and on the fee
interest of Developer in any Improvements during the term of this Lease; and
"Lender" and "Leasehold Mortgagee" shall mean an Institutional Investor who is
the owner and molder of a Leasehold Mortgage, provided, however, that the City
Shall have no duty or obligation to determine independently the relative
priorities of any Leasehold Mortgages, but shall be entitled to rely
absolutely upon a preliminary title report current as of the time of any
determinaticn of the priorities of such Leasehold Mortgage and prepared by a
generally -recognized title insurance company doing business in Miami, Florida.
(c) During the continuance of any Leasehold Mortgage until such time
as the lien of any Leasehold Mortgage has been extinguished, and if a true and
verified copy of such Leasehold Mortgage shall have been delivered to the City
Manager together with a written notice of the name and address of the owner
and holder thereof as provided in Section b.l(a) above:
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M
I
(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 Developer's 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
Developer's Default and Lender shall av, "ailed 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 be done in the performance
and observance of the covenants, conditions and agreements .hereof to
85 Orw
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a
i
g-Imp I migule;
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
performea by Developer instead of by Lender.
(iv) Should any Event of Developer's Default under this Lease
occur, Lender shall have sixty (60) days after receipt of notice from the
City Manager setting forth the nature of such Event of Developer's
Default, to remedy same or, if the default is such that possession of the
Leased Property or Improvements may be reasonably necessary to remedy the
default, Lender shall, within such sixty (60) day period acquire
Developer's leasehold estate created hereby or commence and diligently
prosecute a foreclosure action or such other proceeding as may be
necessary to enable Lender to obtain such possession, provided that (a)
Lender shall have fully cured any default in the payment of any monetary
obligations of Developer under this Lease within such sixty (60) day or
longer period and shall' continue to pay currently such monetary
obligations as and when the same are due and (b) Lender shall within six
(6) months of the date that it takes possession of the Leased Property and
Improvements enter into an agreement on terms and conditions reasonably
acceptable to the City with an Acceptable Operator for the continued
operation of the Project (hereinafter called "Acceptable Operator's
Agreement"). All rights of the City and/or City Manager to terminate this
1
Lease as the result of the occurrence of any such Event of Developer's
Default shall be subject to and conditioned upon the City Manager having
first given Lender written notice of such Event of Developer's Default and
' Lender having failed to remedy such default or acquire Developer's
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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 Developer's Default under this Lease which in
the nature thereof cannot be remedied by Lender shall be deemed to be
remedied if (a) within sixty (60) days after receiving written notice from
the City Manager setting forth the nature of such Event of Developer's
Default, Lender shall have acquired Developer's leasehold estate created
hereby or commenced foreclosure or other appropriate proceedings in the
nature thereof, (b) Lender shall diligently and continuously prosecute any
such proceedings to completion, (c) Lender shall have fully cured any
default in the payment of any monetary obligations of Developer under this
Lease which do not require possession of the Project within such sixty (60)
days period and shall thereafter continue to faithfully perform all such
monetary obligations which do not require possession of the Project, and
(d) within six (6) months after Lender shall have gained possession of the
Project, Lender shall have entered into an Acceptable Operator's Agreement.
Upon the taking of possession of the Project by Lender, Lender shall
perform all of the obligations of the Developer hereunder as and when the
same are due except that Lender shall not be bound by the provisions of
Section 5.8 hereof or any of such obligations which are not capable of
(for example, bankruptcy and/or insolvency of Developer) being performed
by Lender. 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 become
the owner of Developer's estate under the Lease and of the Improvements
- 78 -
must assume all of Developer's obligations hereunder including, but not
limited to, the construction obligation but excluding, however, those
obligations which are not capable of being performed by Lender as above
set forth.
(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 acquiring Developer's leasehold
estate and/or the Improvements or obtaining possession of the Project or
commencing or prosecuting foreclosure or other appropriate proceedings in
the nature thereof, the times specified in subparagraphs (iv) and (v)
above for acquiring Developer's leasehold estate and/or the Improvements
or obtaining possession of the Project or commencing or prosecuting such
foreclosure or other proceedings shall be extended for the period of such
prohibition; provided that Lender shall have fully cured any default in
the payment of any monetary obligations of Developer under this Lease and
shall continue to pay currently such monetary obligations as and when the
same fall due, and provided that Lender shall diligently attempt to remove
any such prohibition.
(vii) The City Manager shall mail to Lender a duplicate copy by
certified mail of any and all notices which the City may from time to time
give to or serve upon Developer pursuant to the provisions of this Lease;
and no notice by the City Manager to Developer hereunder shall be deemed
to have been given unless and until a copy thereof has been so mailed to
Lender.
(viii) Foreclosure of a Leasehold Mortgage or any sale thereunder,
whether by judicial proceedings or by virtue of any power of sale
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contained in the Leasehold Mortgage, or any conveyance of the leasehold
estate created hereby and/or the Improvements from Developer to Lender by
virtue or in lieu of the foreclosure or other appropriate proceedings in
the nature thereof, shall not require the consent of the City or
constitute a breach of any provision of or a default under this Lease.
Upon such foreclosure, sale or conveyance, the City shall recognize
Lender, or any other foreclosure sale purchaser or grantee under such
transfer in lieu of foreclosure, as tenant hereunder except that all
obligations of Developer herein contained shall be binding on the Lender
(except those otherwise excluded in this Article VI or such purchaser or
grantee) only from and after the date that it shall take title to the
Developer's leasehold estate and Improvements unless otherwise in this
Article VI rovided• provided, that Lender or an such foreclosure sale
provided; P , Y
purchaser or grantee must enter into an Acceptable Operator's Agreement,
within six (6) months of the date of such foreclosure, sale or conveyance,
ano further, provided, that in the event there are two or more Leasehold
Mortgages or foreclosure sale purchasers (whether the same or different
Leasehold Mortgages), the City shall have no duty or obligation whatsoever
to determine the relative priorities of such Leasehold Mortgages or the
rights of the different holders thereof and/or foreclosure sale I
purchasers. In the event Lender subsequently assigns or transfers its
interest under this Lease and in the Improvements 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 new lease as
contemplated by subparagraph (ix) below, and in connection with any such
assignment or transfer Lender takes back a mortgage or deed of trust
encumbering such interest to secure a portion of the purchase price given
85-902,111
-80-
Leasehold Mortgage as contemplated under this Section 6.11 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 Mortgagee. Any person or entity to whom this Lease or any such
new lease is assigned must either enter into or assume Lender's
obligations under an Acceptable Operator's Agreement.
(ix) Should this Lease terminate by reason of any default by
Developer hereunder, the City Manager shall give notice thereof to all
Lenders and the City Manager shall, upon written request by Lender to the
City Manager received within sixty (60) days after such termination,
execute and deliver a new lease of the Leased Property to Lender for the
remainder of the term of this Lease with the same covenants, conditions
and agreements (except for any which have been
satisfied by or on behalf
of Developer prior to termination and except those obligations from which
Lenders are relieved in subparagraph (v) above) as are contained herein.
No such termination of this Lease shall effect a termination of this
subparagraph (ix) and the rights granted Lenders herein. The City 's
execution and delivery of such new lease shall be made without
_
representation or warranty of any kind or nature whatsoever, either
express or implied, including without limitation, any representation or
6
warranty regarding title to the Project or any Improvements or the
priority of such new lease (except as to actions taken by the City during
the period commencing on the date of termination of this Lease and
terminating on the date of such new lease). The City's delivery of any
Improvements to Lender pursuant to such new lease shall be made without
representation or warranty of any kind or nature whatsoever, either
E35--92
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express or implied; and Lender shall take any Improvements "as -is" in
their then current condition (except as to any actions taken or
improvements made by the City during such time as the Leased Property was
not the subject of a Lease). Upon execution and delivery of such new
lease, the City shall not be responsible to take any action that may 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 agrees to cooperate with Lender in connection with the
foregoing if Lender shall bring any action to cancel and discharge this
Lease or remove Developer named herein or any other occupant 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 cured or
having commenced and diligently prosecuting 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 Lender, the City
shall only be required to deliver the new lease to the Lender who is,
among those Lenders requesting a new lease, the holder of the most junior
Leasehold Mortgage, provided that such Lender shall, not later than the
execution of such new lease, either (x) pay in full the sums secured by
any or all Leasehold Mortgages which are prior in lien to the Leasehold
Mortgage held by such Lender, or (xx) agree to reinstate the liens of any
or all Leasehold Mortgages which are prior in lien to the Leasehold
Mortgage held by such Lender with the same relative priority as existed
prior to the termination of this Lease. If any Lender having the right to
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i
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
z
required above, the City shall so notify all other Lenders (if any) and
shall afford such other Lenders 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 Project. At Developer's request, the City will enter into an
agreement with any Lender granting to the Lender the rights set forth in
this Article. If such new lease is entered into pursuant hereto, the
Lender shall be entitled to offset from the previous Rentals due the City
under this Lease, the net operating profit, if any, made by the City
Curing the period that the City shall have operated or had possession of
the Project. No subtenant will obtain any greater rights or priority by
virtue of the Non -Disturbance provisions of Section 12.10 of the Lease if
this Lease is terminated and a new lease is entered into pursuant to this
Article VI.
(x) City and Developer shall cooperate in including in this
Lease by suitable amendment from time to time any provision which may be
requested by any proposed Lender, or may otherwise be reasonably
necessary, to implement the provisions of this Article VI; provided,
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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
3
the City under this Lease.
(xi) All rights and benefits afforded to a Lender hereunder
shall also be afforded to a party providing financing to Developer
pursuant to a Financing Sublease.
(xii) At any time that a Lender is in possession of the Leased
Property pursuant to the terms of the Lease and at all times thereafter
during the term of this Lease or any Renewal Term, the Rental obligation
to the City shall be limited to an amount equal to thirty-five percent
(35%) of Net Income Available for Distribution, it being agreed that in
such event the calculation of Net Income Available for Distribution shall
not include any deduction for Minimum Base Rental unless same has actually
been paid to the City.
Section 6.2. No waiver of Developer's Obligations or City's
Rights. Nothing contained in this Article VI 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.
ARTICLE VII
REMEDIES
Section 7.1. Events of Default - Developer. The following events
are hereby defined as "Events of Developer's Default":
85-921
84 -
1k
(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, and the continuance of
such failure for a period of sixty (60) days after notice thereof in writing
from the City to Developer (which notice shall specify the respects in which
the City contends that Developer has failed to perform any such covenants,
conditions and agreements), unless such default was not caused or created by
the Developer and cannot be cured within sixty (60) days and the Developer
within said sixty (60) day period shall have commenced and thereafter she.-
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 19789 11
U.S.C. (Sec. 10 et seq.) or any successor thereto; or
PIS-92I
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.1k
(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, and the continuance of
such failure for a period of sixty (60) days after notice thereof in writing
from the City to Developer (which notice shall specify the respects in which
the City contends that Developer has failed to perform any such covenants,
conditions and agreements), unless such default was not caused or created by
the Developer and cannot be cured within sixty (60) days and the Developer
within said sixty (60) day period shall have commenced and thereafter shall
have continued diligently to prosecute all actions necessary to cure such
default, said failure shall constitute an Event of the Developer's Default.
(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 seq.) or any successor thereto; or
- 85 -
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
5. it a receiver or similar type of appointment or court
appointee or nominee of any name or character is made for Developer or its
property; or
6. if Developer shall abandon the Leased Property during the
term of this Lease or any renewals or extensions thereof; or
7. if Developer shall assign this Lease or sublet any portion
of the Leased Property, except as permitted herein.
Section 7.2. Remedies for Developer's Default. If 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 the Project to the City in accordance with
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Section 11.5. Upon the termination of this Lease, as provided in this Section
7.2, all rights and interest of the Developer in and to the Leased Property
and every part thereof shall cease and terminate and the City may, in addition
to any other rights and remedies it may have, retain all sums paid to it by
the Developer under this Lease.
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 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
(subject, however, to the rights of any Lender pursuant to Article VI
hereof);
(ii) the right to a writ of mandamus, injunction or other
similar relief, available to it under Florida law against the City
G.r3'q � i
04
(including any or all of the members of its governing body, and its
officers, agents or representative) provided, however, that in no event
shall any member of such governing body or any of its officers, agents or
representatives be personally liable for any of the City's obligations to
Developer hereunder;
(iii) the right to maintain any and all actions at law or suits
in equity or .other proper proceedings to obtain damages resulting from
such default.
Section 7.4. 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
consiaered in breach of or in default in any of its obligations, including but
not limited to the preparation of the Leased Property for development, or the
beginning and completion of construction of the Developer Improvements or City
Improvements, or progress in respect thereto, in the event of unavoidable
celay 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 similar
causes beyond the reasonable control of a party (not including such party's
insolvency of financial condition), it being the purpose and intent of this
paragraph that in the event of the occurrence of any such unavoidable delays
the time or times for the performance of the covenants, provisions and
agreements of this Lease, including but not limited to the obligations of the
City and the City Manager with respect to the preparation of the Leased
Property for development and completion of the City Improvements or of
Developer with respect to construction of Developer Improvements, shall be
8S-921
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0* A
extended for the period of unavoidable delay; provided, however, that the
party seeking the benefit of the provisions of this Section shall, within
thirty (30) days after such party shall have become aware of such unavoidable
delay, give notice to the other party thereof in writing of the cause or
causes thereof and the time delayed. The parties hereto agree if any event
shown on Exhibit G shall not occur at the time required for same as a result
an event of Unavoidable Delay, the Rent Commencement Date shall be postponed
to a date extended by the period of such delay or the Opening Date, whichever
is earlier. Notwithstanding the foregoing, Developer agrees to use reasonable
and diligent efforts to open the Bayside Specialty Center for business with
the general public by October 31, 1986.
Section 7.5. Obligations, 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 mace by either party with respect to performance, or manner
or time thereof, of any obligation of the other party or any condition to its
own obligation under this Agreement shall be considered a waiver of any rights
of the party making the waiver with respect to the particular obligations of
the other party or condition to its own obligation beyond those expressly
waived and to the extent thereof, or a waiver in any respect in regard to any
other rights of the party making the waiver or in regard to any obligation of
the other party.
ARTICLE VIII
PROTECTION AGAINST MECHANICS'
LIENS AND OTHER CLAIMS, INDEMNIFICATION
Section a.l. Mechanics' Liens and Payments of Obligations.
(a) Developer to Discharge Mechanics' Liens. Developer shall not be
given possession of the Leased Property or existing Improvements or authorized
to begin construction thereon prior to the recording of this Lease and prior
to the Possession Date so as not to subject the fee interest of the City to
mechanics' liens. If any such mechanics' liens shall at any time be filed
against the Leased Property, Developer shall promptly take and diligently
prosecute appropriate action to have the same discharged or to contest in good
faith the amount or validity thereof and if unsuccessful in such contest, to
have the same discharged. Upon Developer's failure
so to do the City, in
addition to any other right or remedy that it may have, may take such action
as may be reasonably necessary to protect its interest, and Developer shall
pay any amount paid by the City in connection with such action, and all
reasonable legal ano other costs and expenses incurred by the City in
connection therewith (including reasonable counsel fees, court costs and other
necessary Cisbursements). Any such amounts paid by the City and the amount of
any such expenses or costs incurred by the City, if not paid by Developer to
the City within thirty (30) days after the date Developer receives written
notice from the City of the amount thereof and demand for payment of the same,
shall, 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.
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(b) Payment of Materialmen and Suppliers. Developer shall make, or
cause to be made, prompt payment of all money due and legally owing to all
persons doing any work or to subcontractors in connection with the development,
construction, equipment, repair or reconstruction of any of the Improvements
required by this Agreement to be constructed by Developer on the Leased
Property. Nothing in this subparagraph (b) shall limit the right of Developer
to contest, in good faith, by legal proceedings or otherwise, whether any
amount claimed or alleged to be due and owing to any such person is legally due
and owing and to withhold payment of such amounts pending resolution of such
dispute.
Section 8.2. Indemnity. Notwithstanding any policy or policies of
insurance required of Developer, Developer shall indemnify and save harmless
the City from and against any and all actions, claims or demands, suits at law,
in equity or before administrative tribunals, due to the negligence of
Developer, its agents, servants, employees or contractors arising out of the
use or occupancy of the Leased Property by such persons. Developer shall
oefeno 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 harm-
less Developer from and against any and all claims or demands, suits at law,
in equity or before administrative tribunals, due to the negligence of the
City, its agents, servants, employees, or contractors arising out of the use
or occupancy of the Leased Property by such persons. The City shall defend any
and all such action, claims, demands or suits on behalf of Developer at the
City's sole cost and expense.
IMM
B5-92-101 1
i
ARTICLE IX
INSURANCE
Section 9.1. Insurance Coverage. Beginning on the Possession Date
and during the term of this Lease, Developer at its sole cost and expense
shall maintain or cause to be maintained:
(a) Property Insurance. Insurance on the 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
s
shall be written on as broad an All Risk form as is commercially available.
The insurance shall be written on a replacement cost basis. If the policy or
policies of insurance contain a co-insurance requirement, the policy or
policies shall contain an agreed amoun*. n^ -^ten* During the construction
period, property insurance may be provided on a Completed Value Builder's Risk
form, The City and Developer shall be listed as named insureds on such
Builder's Risk Policy. The term "Improvements", as used in this paragraph,
shall be deemed to include all personal property furnished or installed on the
premises and owned by the Developer, and the insurance herein provided shall
cover the same.
The adequacy of the Insurance coverage may be reviewed periodically
by the City Manager at his discretion. Any review by the City Manager shall
not constitute an approval or acceptance of the amount of insurance coverage.
In the event that insurance proceeds are inadequate to rebuild and restore the
aamaged Improvements to substantially their previous condition before an
insurable loss occurred, and the cause of the deficiency in insurance proceeds
is the failure of the Developer to adequately insure the Improvements as
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required by this Agreement, Developer must nevertheless rebuild and restore
such Improvements pursuant to the terms hereof and must pay the entire cost of
same notwithstanding the fact that such insurance proceeds are inadequate.
(b) Rental Value Insurance. Rental value insurance, so that
Developer will be insured against loss of rental income from the improvements
occasioned by any of the insured against perils included in the Property
Insurance policy during the period required to rebuild, repair or replace the
property damaged, which policy or policies of insurance shall expressly provide
by endorsement thereon that the interest of the City as lessor under this Lease
shall be covered to the extend earned, in an amount equal to the total of
Annual Basic Rental payable during said period of business interruption.
Rental Value Insurance shall commence at such time as Rentals are due and
payable to the City, whether or not the Bayside Specialty Center is then open
for business with the general public. The adequacy of the Rental Value
Insurance may be reviewed by the City Manager every five years. Any review by
the City Manager shall not constitute an approval or acceptance of the amount
of insurance coverage.
(c) Automobile Liability Insurance. Automobile liability insurance
anc 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 every
five years by the City Manager. Any review by the City Manager shall not
constitute an approval or acceptance of the amount of insurance coverage.
8S-921
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(d) Liability Insurance. Comprehensive general liability, including
contractual liability, or an equivalent policy form providing liability
insurance against claims for personal injury or death or property damage,
occurring on or about the Leased Property, the Improvements, or any elevator,
escalator, or hoist thereon. Such insurance shall afford protection to at
least a combined single limit for bodily injury and property damage liability
of 51C,000,000 per occurrence. The adequacy of the liability insurance
coverage shall be reviewed every five years by the City Manager. Any review
by the City Manager shall not 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.
(e) worker's Compensation. worker's Compensation and Employer's
Liability insurance in compliance with Florida Statute 440. For work that is
suoccntracted, the Developer shall require the subcontractor to provide
Worker's Compensation insurance for all of the subcontractor's employees.
(f) Copies. Developer shall furnish Certificates of Insurance with
the City named as adaitional insured for the coverages specified hereunder
which shall clearly indicate that Developer has obtained insurance in the
type, amount and classification as herein required. Copies of all policies of
insurance and renewals thereof shall be furnished upon request of the City
Manager by the Developer prior to the effective date thereof. Copies of new
8S-92I
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__.._._..
or renewal policies replacing any policies expiring during the term of this
Lease shall be delivered to City Manager at least thirty (30) days prior to
the date of expiration of any policy, together with proof satisfactory to the
City that all premiums have been paid.
Section 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 Alfreo M. Best Co., Inc., 75 Fulton Street, New York, NY. The insurance
required by this Article may be part of another policy or policies of the
Developer in which other properties and locations are also covered so long as
the amount of insurance available to pay losses at this location is at least
the minimum required by this Section, and it cannot be reduced in any manner
by losses occurring at other properties or locations.
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 interests may appear. The policies shall also
name as insured, if required by either party or required pursuant to the terms
of any Leasehold Mortgage or Financing Sublease, any Leasehold Mortgagee as the
interest of any such Leasehold Mortgagee may appear. Notwithstanding any such
inclusion, the parties hereto agree that any losses under such policy shall
be payable, and all insurance proceeds recovered thereunder shall be applied
ano disbursed in accordance with the provisions of this Lease. All insurance
policies shall provide that no material change, cancellation or termination
85-9n1
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shall be effective until at least thirty (30) days after receipt of written
notice thereof has been received by the City. Each policy shall contain an
endorsement to the effect that no act or omission of the Developer shall affect
the obligation of the insurer to pay the full amount of any loss sustained.
Section 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 all of the insurance required
pursuant to this Agreement, the City, at its option, may procure or renew such
insurance, and all amounts of money paid therefore by the City shall be
treated as Additional Rental payable by Developer to the City together with
interest thereon at the Det ult 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)
oays of such notification.
Section 9.5. Insurance Does Not Waive Developer's Obligations. No
acceptance or approval of any insurance agreement or agreements by the City or
the City Manager shall relieve or release or be construed to relieve or
release Developer from any liability, duty or obligation assjmed by, or
imposeo 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
Improvements on the Leased Property at any time, shall not operate to
terminate this Agreement or to relieve or discharge Developer from the payment
of Rental, or from the payment of any money to be treated as Additional Rent
in respect thereto, pursuant to this Agreement, as the same may become due and
payable, as provided in this Agreement.
INzM
85-921
N A
Section 9.7. Proof of Loss. Whenever any Improvements, or any part
thereof, constructed on the Leased Property (including any personal property
furnished or installed in the premisps) 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.
(a) Authorized Payment. Except as otherwise provided in subsection
(c) of this Section 9.8, all sums payable for loss and damage arising out of
the casualties covered by the property insurance policies shall be payable:
(i) Directly to Developer, if the total recovery is M0,000.00
or less which amount shall be adjusted periodically every five (5) years
commencing with the Rent Commencement Date by the percentage change in the
Consumer Price Index (all urban consumers) as published by the Bureau of
Labor Statistics of the Department of Labor (the "CPI") for such 5 year
period, or in the event the CPI has changed or is no longer published,
such other appropriate measure of changes in the relative purchasing power
of the dollar agreed upon by the parties, except that if Developer is then
in default under this Lease, such 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.
�S-9 1
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(ii) To the Insurance Trustee, if the total recovery is in
excess of $500,000.00, which amount shall be adjusted periodically every
five (5) years commencing with the Rent Commencement Date by the
percentage change in the CPI for such 5 year period as above set forth, to
be held by such Insurance Trustee pending establishment of reconstruction,
repair or replacement costs and shall be disbursed to Developer pursuant
to the provisions of .subparagraph (b) of this Section 9.8. If, at the
time such proceeds become payable, there is a Leasehold Mortgage on the
Leased Property, the Leasehold Mortgagee shall serve as the Insurance
Trustee, but if there is no Leasehold Mortgage at that time, or if the
Leasehold Mortgagee refuses to serve as Insurance Trustee, the Insurance
Trustee shall be such commercial bank or trust company as shall be
designated by Developer and approved by the City Manager, which approval
shall not be unreasonably withheld or delayed.
(b) Disposition of Insurance Proceeds for Reconstruction. All
amounts received upon such policies shall be used, to the extent required, for
the reconstruction, repair or replacement of the Improvements and the personal -
property of Developer contained therein, so that the Improvements or such
personal property shall be restored to a condition comparable to the condition
prior to the loss or damage ;hereinafter referred to as "Reconstruction
Work"). From the Insurance proceeds received by the Insurance Trustee, there
shall be disbursed to Developer such amounts as are required for the
Reconstruction Work. Developer shall submit invoices or proof of payment to
the Insurance Trustee for payment or reimbursement in accordance with an
agreed schedule of values approved in advance by the City Manager.
r
Any amount remaining in the hands of the Insurance Trustee after the
completion of the Reconstruction Work shall be paid to Developer.
E5-921
Mm
(c) Lenders and Lender/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
insurea-against hazard or peril and to have and receive for Developer or
Leasehold Mortgagees' use for such purpose such insurance proceeds, then in
that case said insurance proceeds shall be equally available to such Leasehold
Mortgagee as to Developer as provided in subsection (b) of this Section 9.8,
and it shall in like manner and to like extent at the request of any such
Leasehold Mortgagee, be applied to the reconstruction or repair of any such
building so damaged or destroyed.
Section 9.9. Covenant for Commencement and Completion of
Reconstruction. Subject to the provisions of Section 9.1(b) and Section 9.101
Developer covenants and agrees to commence the Reconstruction Work as soon as
practicable but in any event within six (6) months after the insurance
proceeas in respect of the destroyed or damaged Improvements or personalty
have ceen receivea, and to fully complete such Reconstruction Work as
expeditiously as possible consistent with the nature of the damage, but in any
event within eighteen t °) months from the start thereof; provided, that if it
is not practicable to cc, once such Reconstruction Work within such six (6)
month period, or to complet.- such Reconstruction Work within such eighteen
(18) month period, then such Reconstruction Work may be commenced and
completes within a longer period, provided that such period shall,be approved
8S-901
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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.
The City agrees that if the seawall, riprap and/or marina shown on
Exhibit A-1 or Exhibit A-2 shall be damaged or destroyed, the City shall
promptly repair and restore same to at least the condition same was in
immediately prior to such damage or destruction or to a condition mutually
acceptable to the parties hereto.
Section 9.10. Developer's Rights In the Event of Uninsured Major
Casualty. In the event any part of the Improvements or the Leased Property is
damaged or destroyed by reason of any casualty which is not required to be
insured against pursuant to Section 9.1 and is not in fact insured against,
then at Developer's option, in lieu of rebuilding, replacing or repairing the
portion of the Improvements or the Leased. Property so damaged or destroyed,
Developer may give notice to the City, within sixty (60) days after the
occurrence of such damage or destruction, of Developer's election to terminate
this Lease as to the portion of the Improvements or the Leased Property so
damaged or destroyed and this Lease shall, subject to the rights of Lenders
hereunder, thereupon terminate as to such portion of the Project and Developer
shall have no further obligation hereunder with respect thereto, except that,
if the City shall so request within thirty (30) 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
85`9�i
-100-
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this Lease shall have been terminated and shall clear and grade such portion
of the Leased Property. The City and Developer shall, at the request of
either, execute such instruments or documents as may be reasonably necessary
or desirable in order to amend this Lease to delete such portion of the Leased
Property from the description of the property demised hereby. If the
Improvements or the Leased Property which were uninsured, or for which there
were no insurance proceeds, shall be substantially damaged or destroyed in any
single casualty so that the Improvements or the Leased Property shall be
unsuitable for restoration for Developer's continued use and occupancy in
Developer's business, then at Developer's option, in lieu of rebuilding,
replacing or repairing the Improvements or the Leased Property as provided in
this Lease, Developer moy give notice to the City, within sixty (60) days
after the occurrence of such damage or destruction, of Developer's intention
to terminate this Lease on any business may specified in such notice which
occurs not less than sixty (60) nor more than one hundred twenty (120) days
after the date of such damage or destruction, provided that such notice shall
be accompanied by a certificate of the Developer, signed by the appropriate
officer or general partner, stating that in the reasonable judgment of
Developer, the Improvements and the Leased Property are economically
unsuitable for Developer's continued use and occupancy by reason of such
damage or destruction. This Lease shall, subject to the rights of Lenders
under this Lease, 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.
85-921
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Section 9.11. Casualty to Parking Garage. In the event that all or
any portion of the Parking Garage and the Garage Parcel is damaged or destroyed
by reason of fire or other casualty and the Parking Garage is not restored,
f
pursuant to the terms of the Parking Garage Ground Lease such that, in the good
faith opinion of Developer, it shall be economically unfeasible to use and en-
joy the Improvements on the Leased Property, then the Developer shall have the
right to terminate this Lease upon giving the City written notice of the exer-
cise of such option and this Lease shall, subject to the rights of Lenders
under this Lease, terminate and become null and void as of the date of
termination specified in such option, and Rental and any money treated as
Additional Rental and Public Charges shall be prorated and paid by Developer
as of the date of such termination. In addition to other matters which
Developer shall consider in determining the foregoing economic unfeasibility,
the Developer shall consider whether comparable, suitable parking would be
available in a close proximity to the Leased Property. If Developer shall
exercise its right to terminate this Lease as above set forth, Developer
shall, provided that the City shall actually demolish the Developer
Improvements, pay to the City an amount equal to fifty percent (50%) of the
actual cost that the City shall incur in connection with the demolition of the
Developer Improvements.
ARTICLE X
CONDEMNATION
Section 10.1. Entire Project Taken by Condemnation. In the event
that the whole of the Project (or such portion thereof as shall, in the good
faith opinion of Developer, render it economically unfeasible to effect
restoration thereof) shall be taken for any public use or purpose by the
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f
f exercise of the power of eminent domain, or shall be conveyed by the City and
Developer acting jointly to avoid proceedings of such taking, the Rental and
money to be treated as Additional Rental pursuant to this Agreement and the
Public Charges shall be prorated and paid by the Developer to the date of such
taking or conveyance, and this Lease shall terminate and become null and void
as of the date of such taking or conveyance. The award or awards of damages
allowed to the City or Developer shall be paid as follows:
First: There shall be paid all expenses, if any, in-
cluding reasonable attorneys' fees, incurred by the City and
Developer in such condemnation suit or conveyance (except that
nothing contained in this Article shall require payment to the
City of costs and expenses it may incur as the condemning
authority);
Second: City and Developer shall be paid portions of the
balance of said award or awards which are allocable to and
represented by the value of their respective interest in the
Project as found by the court or jury in its condemnation award,
or if no such separate awards are obtained, such balance shall
be paid to Developer and the City in the same proportion as the
then Fair Market Value of each party's respective interest or
estate in the Leased Property and the Improvements bears to the
total Fair Market Value of the interests and estates of both
parties in the Leased Property and Improvements within thirty
(30) days of the time of the taking, such value shall be
determined by the Arbitration Panel, selected in the manner and
acting with the authority provided in this Article.
85-9142111
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Section 10.2. Partial Taking of Project by Condemnation.
(a) In the event that less than all of the Project shall be taken
for any public use or purpose by the exercise of the power of eminent domain,
or shall be conveyed by the City and Developer acting jointly to avoid
proceedings of such taking, 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
Improvements so that they will be comparable to the Improvements prior to the
condemnation, taking into consideration the fact of the condemnation;
provided, however, that in so doing, Developer shall not be required to expend
more than the amount of any such award actually received by Developer, less
all costs and expenses (including reasonable attorneys' fees) incurred in the
collection of same.
(o) The award or awards of damages allowed to City and Developer
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 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;
85-921
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Third: There shall be paid to the Developer the amount
required to complete the remodeling and repairs to the
Improvements pursuant to (a) above;
Fourth: City and Developer shall be paid portions of the
balance of said award or awards, if any, which are allocable to
and represented by the value of their respective interest in the
Leased Property and Improvements as found by the court or jury
in its condemnation award, or if no such separate awards are
obtained, such balance shall be paid to Developer and the City
in the same proportion as the then Fair Market Value of each
party's respective interest or estate in the Leased Property and
the Improvements bears to the total Fair Market Value of the
interests and estates of both parties in the Leased Property and
Improvements. In the event that the parties cannot agree upon
the Fair Market Value of their respective interests and estates
in the Leased Property and Improvements within thirty (30) days
cf the time of the taking, such value shall be determined by the
Arbitration Panel, selected in the manner and acting with the
authority provided in Section 10.5 of this Article.
Section 10.3. Adjustment of Rent Upon Partial Taking. In the event
a part of the Leased Property and the Improvements thereon, if any, shall be
i
taken for any public use or purpose by the exercise of the power of eminent
i
acmain, or shall be conveyed by City and Developer acting jointly to avoid
proceedings of such taking, then Rental, and money to be treated as Additional
Rental pursuant to this Agreement and the Public Charges in respect of such
85-9211
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
3
writing by the parties hereto, provided, however, if City and Developer shall
be unable to agree upon the amount of such reduction within thirty (30) days
of the date of such taking, then, and in such event, the amount of such
r
reduction shall be determined by the Arbitration Panel selected in the manner
and acting with the authority provided in Section 10.5.
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 Improvements shall be taken
for temporary use or the whole or any part of the leasehold estate created by
this Lease be taken,
shall all awards or other payments shall be paid to
Developer alone, except that,
(i) if any portion of any such award or payment on account of a
taking for temporary use is made by reason of any damage to or destruction
of any portion of the Improvements, such portion shall be applied to pay
the cost of restoration,
(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 temporary taking had taken place. Rentals payable shall
be the Minimum Base Rental, or Rentals payable as a percentage of Net
Income Available for Distribution, whichever is higher. For the purposes
of this Section 10.4, Rentals payable as a percentage of Net Income
Available for Oistribution 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 Opening Date, whichever
period is lesser. In the event the taking for temporary use continues for
i
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,
i
if not available, such equivalent index.
Section 10.5. Arbitration. 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:
4
(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 a member of
the American Institute of Real Estate Appraisers.
(iii) If either party shall fail to designate a member within
t
fifteen (15) days after a written request so to do by the other party,
then such other party may request the President of the Florida Chapter of
the American Arbitration Association to designate a member, who when so
designated shall act in the same manner as if he had been the member
designated by the party so failing to designate an arbitrator. If the two
members are unable to agree upon a third member within ten (10) days from
the last date of designation, such third member shall be designated by the
President of the Florida Chapter of the American Arbitration Association,
j upon the request of either of the two members.
8S-92I
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(iv) All actions, hearings and decisions of the Arbitration
Panel shall be conducted, based upon and in accordance with the Commercial
Arbitration Rules of the American Arbitration Association. In all
i
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 provi-
sions 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.
(v) A hearing shall be commenced within sixty (60) days
following the selection of the last of the three arbitrators. A court
reporter shall make a transcript of the hearing. The parties and the
Arbitration Panel shall use their best efforts to conclude the hearing
within ten days. The parties shall be entitled to such pre-trial
discovery as they may agree, or as determined by the Arbitration Panel.
The Arbitration Panel shall have the right to question witnesses at the
hearing, but not to call witnesses. The Arbitration Panel may grant
continuances for good cause or with the agreement of both parties. The
i
Arbitration Panel may render a decision at the close of the hearing, or
s
may request briefs on any or all issues. Any and all such briefs,
i
including reply briefs, shall be filed with the terms and on the schedule
108 -
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set by the Arbitration Panel, but in any event no later than forty-five
(45) days following the commencement of the hearing. The Arbitration
F
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.
(vi) 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
oetermination. 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.
Section 10.6. Parking Garage Taken by Condemnation. In the event
that all or any portion of the Parking Garage or the Garage Parcel is taken by
the power of eminent domain or shall be conveyed to avoid such proceedings and
9
all of the Parking Garage shall no longer be available for use to the gen-
eral public, such that, in the good faith opinion of Developer, it shall be
economically unfeasible to use and enjoy the Improvements in the Leased Prop-
9 1120
-109-
0
erty, then the Developer shall have the right to terminate this Lease upon
giving the City written notice of the exercise of such option and this Lease
shall terminate and become null and void as of the date of termination
specified in such option, and Rental and any money treated as Additional
Rental and Public Charges shall be prorated and paid by the Developer as of
the date of such termination. In addition to other matters which Developer
shall consider in determining the foregoing economic unfeasibility, Developer
shall consider whether comparable, suitable parking would be available in a
close proximity to the Leased Property. If Developer shall, provided that the
City shall actually demolish the Developer Improvements, exercise its right to
terminate the Lease as above set forth, Developer shall pay to the City an
amount equal to fifty percent (50%) of the actual cost that the City shall
incur in connection with the demolition of Developer Improvements.
ARTICLE XI
RIGHTS OF OCCUPANCY AND ACCESS;
MAINTENANCE, OWNERSHIP OF IMPROVEMENTS
Section 11.1. Quiet Enjoyment. The City represents and warrants
tnat Developer, upon paying the Rental pursuant to this Agreement and
coserving ano keeping the covenants and agreements of this Agreement on its
part to be kept and performed, shall lawfully and quietly hold, occupy and
enjoy the Leased Property without hindrance or molestation by the City during
the term of this Agreement or by any person or persons claiming under the City.
Section 11.2. Waste. Developer shall not permit, commit or suffer
waste or impairment of the Leased Property, or the Developer Improvements
thereon, or any part thereof.
65-921
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Section 11.3. Maintenance and Operation of Improvements. Developer
shall at all times keep the Improvements constructed on the Leased Property
and all furnishings located therein in good and safe condition and repair as
other first class projects in similar usage are kept (reasonable wear and tear
expected), and in the occupancy, maintenance and operation of such
Improvements, and of the Leased Property, shall comply with all laws,
ordinances, codes and regulations applicable thereto.
Section 11.4. Ownership of Improvements During Lease. Prior to the
expiration or termination of this Lease, title to the Improvements shall not
vest in the City by reason of its ownership of fee simple title to the Leased
Property, but title to such Improvements shall remain in Developer. If this
Lease shall terminate prior to the expiration of the term hereof and if, at
that time, any Leasehold Mortgagee shall exercise its option to obtain a new
lease for the remainder of the term of this Lease pursuant to Article VI, then
title to the Improvements shall automatically pass to, vest in and belong to
such Leasehold Mortgagee or any designee or nominee of such Leasehold
Mortgagee permitted hereunder, until the expiration or sooner termination of
the term of such new lease. The City and Developer covenant that to confirm
the automatic vesting of title as provided in this Section, each will execute
and deliver such further assurances and instruments of assignment and
conveyance as may be required by the other or by Lender for that purpose.
During the term of this Lease, Developer shall be entitled to claim
depreciation on the Improvements and all equipment, fixtures and machinery
therein contained, for all taxation purposes.
Section 11.5. Surrender of Leased Property. Except as provided in
Section 11.4 above, upon the expiration of the Lease term, or upon termination
�5-92: 1
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of this Agreement and the Lease term hereunder in respect to the Leased
Property, title to the Improvements shall vest in the City and it shall be
i
1
lawful for the City to re-enter and repossess the Leased Property and the
Improvements thereon without process of law, and Developer, in such event,
does hereby waive any demand for possession thereof, agrees to surrender and
deliver the Leased Property and the Improvements thereon, without process of
law, peaceably to the City immediately upon such expiration or termination.
Section 11.6. City and Developer to Join in Certain Actions. Within
ten (10) days after receipt of written request from Developer, the City shall,
(a) Join Developer when required by law in any and all applications
for permits, licenses or other authorizations required by any governmental or
public authority which has jurisdiction in connection with any work as may be
reasonably necessary or appropriate for the construction of the Improvements
to be constructed by Developer 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
Prcperty or any 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
t
PIS-901(21i
- 112 -
Z
of this Agreement and the Lease term hereunder in respect to the Leased
Property, title to the Improvements shall vest in the City and it shall be
lawful for the City to re-enter and repossess the Leased Property and the
Improvements thereon without process of law, and Developer, in such event,
does hereby waive any demand for possession thereof, agrees to surrender and
deliver the Leased Property and the Improvements thereon, without process of
law, peaceably to the City immediately upon such expiration or termination.
Section 11.6. City and Developer to Join in Certain Actions. Within
ten (10) days after receipt of written request from Developer, the City shall,
( a) Join Developer when required by law in any and all applications
for permits, licenses or other authorizations required by any governmental or
public authority which has jurisdiction in connection with any work as may be
reasonably necessary or appropriate for the construction of the Improvements
to be constructed by Developer 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 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
creatina or establishing the relationship of co-partners, or creating or
establishing the relationship of a joint venture between the City and
Developer, or as constituting Developer as the agent or representative of the
City for any purpose or in any manner whatsoever.
Section 12.2. Recording, Documentary Stamps. This Agreement, or a
memorandum hereof in form mutually satisfactory to the parties, shall be
recorded among the Land Records of Dade County, State of Florida, and either
party may cause any modification or addition to this Lease or any ancillary
document relevant to this transaction to be so recorded, and the cost of any
such recordation, cost of any State of Florida documentary stamps which
legally must be attached to any or all of said papers, and the cost of the
applicable Dade County and State transfer tax shall be paid in full by
Developer.
Section 12.3. Florida and Local Laws Prevail. This Agreement shall
be governed by the laws of the State of Florida. This Agreement is subject to
and shall be interpreted to effectuate its compliance with the Charter of the
City of Miami, the City of Miami Code and the Dade County Charter and Code.
Furthermore, the terms of this Agreement allow reasonable public access to the
water, reasonaole public use of such property, and comply with other charter
waterfront setbacks and view corridor requirements. Any conflicts between
tnis 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
85-921
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` "IN
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 unenforce-
able, 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 the Charter of the City of Miami, the
City of Miami Code and the Dade County Charter and Code.
Section 12.4. 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 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 this
Agreement by either the City or the City Manager, on the one hand, to
Developer, or, on the other, by Developer to the City or the City Manager
shall be sufficiently given or delivered if dispatched by registered or
certified mail, postage prepaid, return receipt requested; and
85-902,111
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(a) Developer. In the case of a notice or communication to
Developer, if addressed as follows:
General Counsel
Bayside Center Limited Partnership
c/o The Rouse Company
10275 Little Patuxent Parkway
Columbia, Maryland 21044
(b) Developer's Records. Developer's original duplicate books and
records in auditable form as required in Section 2.5(d) shall be kept and be
available to the City during normal business hours at its principal place of
business in the City of Miami.
(c) City Manager. In the case of a notice or communication to the
City or the City Manager, if addressed as follows:
City Manager
3500 Pan American Drive
Miami, Florida 33133
or if such notice is addressed in such 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 designated by Developer a certificate stating that (i) the Lease is
in full force and effect and has not been modified, supplemented or amended in
any way, or, if there have been modifications, the Lease is in full force and
- 115 -
effect as modified, identifying such modification agreement, and if the Lease
is not in force and effect, the certificate shall so state; (ii) the Lease as
modified represents the entire agreement between the parties as to this
leasing, or, if it does not, the certificate shall so state; (iii) the dates
on which the term of this Lease commenced and will terminate; (iv) all
conditions under the Lease to be performed by the City or Developer, as the
case may be, have been satisfied and, as of the date of such certificate,
there are no existing defenses or offsets which the City or Developer, as the
case may be, has against the enforcement of the Lease by the other party, or,
if such conditions have not been satisfied or if there are any defenses or
i
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,
i
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, nor the separate estates of the City and the
Developer, are intended to or shall, in any event, be merged, including
without limitation by reason of any transfer, whether by operation or law or
otherwise (i) transferring Developer's leasehold estate in the Leased Property
or its interest in any Improvements or any part thereof from the Developer (or
its successors or assigns) to the City (or its successors or assigns), or (ii)
transferring title to the Leased Property or any part thereof from the City to
85-921
- 116 -
Developer, its successors or assigns, and any such transfer shall not be
deemed to affect or impair the provisions and covenants of this Agreement. No
such merger of estates shall occur unless and until all parties having any
interest in this Lease, the leasehold estate created hereby or the Improvement,'
including all Lenders shall join in the execution of a written instrument
effecting such merger.
i Section 12.8. Titles of Articles and Sections. Any titles of the
s
{ several parts, Articles and Sections of this Agreement are inserted for
a
convenience of reference only and shall be disregarded in construing or
interpreting any of its provisions.
Section 12.9. Counterparts. This Agreement is executed in six (6)
counterparts, each of which shall be deemed an original, and such counterparts
shall constitute one and the same instrument. This Agreement shall become
effective only upon execution and delivery of this Agreement by the parties
hereto and execution and delivery of all Exhibits referred to in Section 1.1.
Section 12.10. Nondisturbance and Attornment. The City covenants and
agrees with Developer for the benefit of any and all Subtenants occupying any
part of the Leased Property or the Improvements from time to time, that in the
event of a *ermination of this Lease, the possession of each such Subtenant
shall not be disturbed so long as such Subtenant shall not be in default under
its Sublease; provided such Subtenant shall attorn to the City. This
nondisturbance agreement shall be self -operative and no further agreement
between the City and any such Subtenant shall be necessary to effect the same,
4
however, the City agrees from time to time, promptly upon request of Developer
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or any Subtenant, it will enter into agreements with the Developer and any
such Subtenant confirming such nondisturbance agreement. Any such
confirmatory agreement may be made on behalf of the City by the City Manager.
In the event of a termination of this Lease, each Subtenant shall attorn to
the City. Developer covenants that each Sublease to which it shall be a party
shall contain a clause expressly providing that the Subtenant thereunder shall
attorn to the City in the event of a termination of this Lease, but the
absence of such a clause from any Sublease shall not relieve the Subtenant
from the provisions of this Section 12.10.
x
Section 12.11 Non -Discrimination and Equal Opportunity. Developer
will use affirmative efforts to seek and offer to minority -controlled
businesses the opportunity to lease such portions of the Leased Property as
may from time to time become available in accordance with the Minority Parti-
cipation Program attached hereto as Exhibit H and incorporated herein by this
reference. It shall be an Event of Developer Default hereunder if Developer
shall not fund the minority development foundation in accordance with the
provisions dealing with same set forth in Exhibit H, which payments shall
commence to accrue on the Rent Commencement Date.
Section 12.12. Successors and Assigns. Except to the extent limited
elsewhere in this Lease, all of the covenants, conditions and obligations
contained in this Lease shall be binding upon and inure to the benefit of the
respective successors and assigns of the City and the Developer.
IN WITNESS WHEREOF, ROUSE-MIAMI, INC., the sole general partner of
3AYSIDE CENTER LIMITED PARTNERSHIP, has caused this Lease Agreement to be
t
signed in its name by its Vice President and its corporate seal to be hereunto
affixed and duly attested by its Assistant Secretary, and the CITY COMMISSION
OF MIAMI has caused this Lease Agreement to be signed in its name by Randolph
i;.;,agv H'r`4
Rosencrantz, the CITY MANAGER, and duly attested to by R43ph tom.-'9ngle, the
CITY CLERK, on the day and year first hereinabove written.
ATTEST:
Assistant Secretary
LCorporate Seal]
ATTEST:
git; City Clerk
APPROVED AS TO FORM AND
CORRECTNESS:
LUCIA AL EN DOUGHERTY
CITY ATTORNEY
1124G/452A
(was 1544F/452A)
BAYSIDE CENTER LIMITED PARTNERSHIP, A
MARYLAND LIMITED PARTNERSHIP
By: ROUSE-MIAMI, INC., A MARYLAND
CORPORATION, GENERAL PARTNER
By:
Vice President
THE CITY OF MIAMI, A MUNICIPAL CORPORA-
TION OF THE STATE OF FLORIDA
By:
Sergio Pereira, City Manager
- 119 -
S5--921
J-85- 928
9/11/85
RESOLUTION N0. fill 5
A RESOLUTION AUTHORIZTNG THE CITY MANAGER TO
EXECUTE AN AMENDED AND RESTATED LEASE
AGREEMENT, IN SUBSTANTIALLY 'SHE FORM
ATTACHED, BETWEEN 'PHE CT,rY ANTI BAYSTDF
CENTER LIMITED PARTNERSHIP FOR THE BAYSTDE
RETAIL PARCEL TNCORPORATTNG REQUIREMENTS FOR
CONSTRUCTION FINANCTNG AND TNCORPORATING ALL
DOCUMENTS; AND FURTHER, AUTHORIZING THE CITY _
MANAGER TO EXECUTE A MEMORANDUM OF LEASE, IN
SUBSTANTIALLY THE FORM ATTACHED, AS REQUIRED
FOR CLOSING.
WHEREAS, on January 14, 1985 the City and Bayside Center
Limited Partnership entered into a Ground Lease Agreement whereby
Bayside will. construct, operate and maintain a Specialty Center
on a portion of Bayfront Park; and
WHEREAS, in order to acquire construction financing, Bayside
Center_ Limited Partnership has requested the Agreement be amended
and restated as set forth therein.
NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY
OF MIAMI, FLORIDA:
Section 1. The City Manager is hereby authorized to
execute, in substantially the form attached, an Amended and
Restated Lease Agreement between the City and Bayside Center
Limited Partnership for the Bayside retail parcel incorporating
requirements for construction financing and, further,
incorporating all documents required for closing.
Section 2. The City Manager is hereby authorized to
execute, in substantially the form attached, a Memorandum of
Lease Agreement as required for closing.
PASSED AND ADOPTED this 12th day of SEPTEMBER
1985.
MAURICE A. FERRE
MAURICE A. FERRE, Mayor
CITY COMMi DISS N
MEETING OF
SEp 2.-4LJ0.0 �
rwn tip.
,
I-N
PREPARED AND APPROVED BY:
G. MI IAM MAER
Assistant City Attorney
APPROVED AS -TO FORM AND CORRECTNESS:
LUCIA A. D UGHERTY
City Attorney
GMM/wpc/ab/B094
r t t
AMENDED AND RESTATED
LEASE AGREEMENT
between
BAYSIDE CENTER LIMITED PARTNERSHIP
and
CITY OF MIAMI
September h�—, 1985
BAYSIDE SPECIALTY CENTER
RETAIL PARCEL
85-9�
MAE
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TABLE OF CONTENTS
PAGE
ARTICLE
I - EXHIBITS AND DEFINITIONS
4
Section
1.1.
Exhibits . . . . . . . . . . . . . . . . . . . . .
4
Section
1.2.
Defined Terms . . . . . . . . . . . . . . . . . . .
5
ARTICLE
II - GENERAL TERMS OF LEASE OF LEASED PROPERTY
21
Section
2.1.
Lease of Leased Property to Developer. . . . . . .
21
a. Premises . . . . . . . . . . . . . . . . . .
21
b. Original Term . . . . . . . . . . . . . . . .
22
c. Renewal Term . . . . . . . . . . . . . .
23
d. Possession of Leased Property. . . . . . . .
23
e. Conditions Precedent . . . . . .
25
f. Developer Obligations Prior to Possession. .
27
Section
2.2.
Restrictive Covenants.. . . . . . . . . . . . . .
28
a. Use Prohibitions of the Leased Property.
28
b. No Discrimination.
30
c. Permitter: Uses for LeasedProperty . . . . . .
30
d. Use Prohibitions of the Park Site
and Garage Parcel . . . . . . . . . . . . .
31
e. Enforceability . . . . . . . . . . . . . . . .
32
Section
2.3.
Easements . . . . . . . . . . . . . . . . . . . . .
33
a. Existing Easements . . . . . . . . . . . . . .
33
b. Easements Granted to Developer . . . . . . . .
33
c. Limitations on Easements Rights. . . . . . . .
36
d. Duration of Easements . . . . . . . . . . . . .
38
e. Confirmatory Instruments . . . . . . . . . . .
38
Section
2.4.
Title of Leased Property . . . . . . . . . . . . .
38
Section
2.5.
Rental .. . . . . . . . . . . . . . . .
39
a. Rentals Payable. . . . . . . . . . . . . .
39
b. Continuous Operation . . . . . . . . . . . .
41
c. Payment of Rental . . . . . . . . . . . . . .
42
d. Refinancing. . . . . . . . . . . . . . . . .
43
e. Developer's Records . . . . . . . . . . .
44
f. Pre -Construction Contributions . . . . . . . .
45
Section
2.6.
Covenants for Payment of Public
Charges by Developer . . . . . . . . . . . . . .
47
Section
2.7.
Approvals and Consents . . . . . . . . . . . . . .
49
Section
2.8.
Security and Police Protection . . . . . . . . . .
49
Section
2.9.
City Improvements. . . . . . . . . . . . . . .
49
Section
2.10.
Condition of Leased Property . . . . . . . . . . .
49
Section
2.11.
Roadways and Utilities . . . . . . . . . . . . . .
51
(i)
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TABLE OF CONTENTS
ARTICLE III - CONSTRUCTION OF IMPROVEMENTS
Section 3.1. Conformity of Plans . . . . . . . . . . . . . . . .
Section 3.2. Preliminary Plans . . . . . . . . . . . . . . . . .
Section 3.3. Construction Plans . . . . . . . . . . . . . . . .
Section 3.4. Facilities to be Constructed . . . . . . . . . . .
Section 3.5. Maintenance of Park Site and Leased Property . . .
Section 3.6. Access . . . . . . . . . . . . . . . . . . . .
Section 3.7. Construction Period. . . . . . . . . . . . . . .
Section 3.8. Progress of Construction . . . . . . . . . . .
Section 3.9. Certificate of Final Completion. . . . . . . . .
Section 3.10. Connection of Building to Utilities. . . . . . . .
Section 3.11. Permits and Approvals . . . . . . . . . . . . . . .
Section 3.12. Compliance with Laws . . . . . . . . . . . . . . .
Section 3.13. Extension of Time Requirements . . . . . . . . . .
Section 3.14. Alterations and Renovations. . . . . . . . . . . .
Section 3.15. Art in Public Places . . . . . . . . . . . . . . .
ARTICLE IV - LAND USES
Section 4.1. Land Uses. .
Section 4.2. Character aW Operation of Improvements. .
ARTICLE V - ANTI -SPECULATION; ASSIGNNENT
Section 5.1. Definitions. .
Section 5.2. Purposes of Restrictions on*Transfer .
Section 5.3. Transfers.
Section 5.4. Notice of Transfer; Information as to Shareholders
Section 5.5. Effectuation of Certain Permitted Transfers. . . .
Section 5.6. Transfers of the City's Interests. . . . . . . . .
Section 5.7. Subletting . . . . . . . . . . . . . . . .
Section 5.8. Minority participation in ownership. . .
ARTICLE VI - MORTGAGE FINANCING; RIGHTS OF MORTGAGEE
- Section 6.1. Leasehold Mortgage . . . . . . . . . . . . .
Section 6.2. No Waiver of Developer's Obligations
or City's Rights . . . . . . . . . . . . . . . .
ARTICLE VII - REMEDIES
Section 7.1. Events of Default - Developer. . . . . . . . . . .
a. Failure - Payment of Money . . . . . . . . . .
b. Failure - Performance of Other Covenants, Etc.
c. Bankruptcy, etc . . . . . . . . . . . . . . . .
PAGE
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52
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54
56
56
57
57
58
59
59
60
61
62
62
63
63
63
63
64
64
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69
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TABLE OF CONTENTS
Section 7.2. Remedies for Developer's Default . . . . . . . . .
Section 7.3. Events of Default - City . . . . . . . . . . . . .
a. Events of Default. . . . . . . . . . . .
b. Remedies for City's Default. . . . . . . . . .
Section 7.4. Unavoidable Delay . . . . . . . . . . . . . . . . .
Section 7.5. Obligations, Rights and Remedies Cumulative. .
ARTICLE VIII - PROTECTION AGAINST MECHANICS' LIENS AND
OTHER CLAIMS, INDEMNIFICATION
Section 8.1. Mechanics' Liens and Payments of Obligations .
a. Developer to Discharge.Mechanics' Liens. . . .
b. Payment of Materialmen and Suppliers .
Section 8.2. Indemnity . . . . . . . . . . . . . . . . . . . . .
ARTICLE IX - INSURANCE
Section 9.1. Insurance Coverage .
a. Property Insurance . . . . . . . . . . . . . .
b. Rental Value Insurance . . . . . . . . . . . .
c. Automobile Liability Insurance . . . . . . . .
d. Liability Insurance . . . . . . . . . . . . . .
e. Worker's Compensation. . . . . . . . . . . . .
f . Copies . . . . . . . . . .
Section 9.2. Responsible Companies - Blanket
Insurance Permitted. . . .
Section 9,3. Named Insureds - Notice to City of Cancellation.
Section 9.4. City May Procure Insurance if Developer
Fails To Do So . . . . . . . . . . . . . . . . .
Section 9.5. Insurance Does Not Waive Developer's Obligations .
Section 9.6. Loss or Damage Not to Terminate Rental
or this Agreement . . . . . . . . . . . . . . . .
Section 9.7. Proof of Loss . . . . . . . . . . . . . . . . . . .
Section 9.8. Property Insurance Proceeds. . . . . . . . . . . .
a. Authorized Payment . . . . . . . . . . . . . .
b. Disposition of Insurance Proceeds
for Reconstruction . . . . . . .
c. Lenders and Lender/Landlords May Have Benefit
of Insurance Fund for Reconstruction .
Section 9.9. Covenant for Commencement and Completion
of Reconstruction. . . . . . . . . . . .
Section 9.10. Developer's Rights In the Event of Uninsured.
Major Casualty . . . . . . . . . . . . . . .
Section 9.11. Casualty to Parking Garage . . . . . . . . . . . .
PAGE
86
87
87
87
88
89
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90
90
91
91
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92
92
93
93
94
94
94
95
95
96
96
96
97
97
97
98
99
99
100
102
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ARTICLE X - CONDEMNATION
Section 10.1.
Section 10.2.
Section 10.3.
Section 10.4.
Section 10.5.
Section 10.6.
TABLE OF CONTENTS
PAGE
102
Entire Leased Property Taken by Condemnation . . . 102
Partial Taking of Leased Property by Condemnation. 104
Adjustment of Rent Upon Partial Taking . . . . . . 105
Taking for Temporary Use or of Leasehold Estate. . 106
Arbitration . . . . . . . . . . . . . . 107
Parking Garage Taken by Condemnation . . . . . . . 109
ARTICLE XI - RIGHTS OF OCCUPANCY AND ACCESS; MAINTENANCE;
OWNERSHIP OF IMPROVEMENTS
110
Section
11.1.
Quiet Enjoyment . . . . . . . . . . . . . . . . . .
110
Section
11.2.
Waste. . . . . . .
110
Section
11.3.
Maintenance and Operation of Improvements. . . . .
ill
Section
11.4.
Ownership of Improvements During Lease . . . . . .
111
Section
11.5.
Surrender of Leased Property . . . . . . . . . . .
111
Section
11.6.
City and Developer to Join in Certain Actions. . .
112
ARTICLE XII - MISCELLANEOUS PROVISIONS
112
Section
12.1.
No Partnership or Joint Venture. . . . . . . .
. . 112
Section
12.2.
Recording, Documentary Stamps. . . . . . . . .
. . 113
Section
12.3.
Florida and Local Laws Prevail . . . . . . . .
. . 113
Section
12.4.
Conflicts of Interest; City Representatives
Not Individually Liable . . . . . . . . . . .
. . 114
Section
12.5.
Notice . . . . . . . . . . . . . . . . . .
. . 114
a. Developer . . . . . . . . . . . . . . . . .
. . 115
b. Developer's Records . . . . . . . . . . . .
. . 115
c. City Manager . . . . . . . . . . . . . . .
. . 115
Section
12.6.
Estoppel Certificates. . . . . . . . . .
. . 115
- Section
12.7.
Provisions Not Merged with Deed. . . . . . . .
. . 116
Section
12.8.
Titles of Articles and Sections. . . . . . . .
. . 117
Section
12.9.
Counterparts . .
117
Section
12.10.
Nondisturbance and Attornment.
117
Section
12.11.
Non -Discrimination and Equal Opportunity
118
Section
12.12.
Successors and Assigns . . . . . . . . . . . .
. . 118
EXHIBITS
Exhibit
A-1
-- Survey
Exhibit
A-2
-- 8ayfront Park Site Plan
t Exhibit
A-3
-- Site Plan
Exhibit
B-1
-- Legal Description of Retail Parcel
Exhibit
B-2
-- Legal Description of Area A-4
Exhibit
B-3
-- Legal Description of Area A-5
i
(iv)
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t
TABLE OF CONTENTS
EXHIBITS (can't.)
Exhibit C -- Intentionally Deleted
Exhibit D -- Form of Guaranty
Exhibit E -- Permitted Encumbrances and Easements
Exhibit F -- Approved Concept Plans
Exhibit G -- Development Schedule
Exhibit H -- Minority Participation Agreement
Exhibit I -- List of Design Development Plans for Restaurant in Area A-4
Exhibit J -- List of Drawings Showing All Easements and Utilities
Located at the Leased Property
Exhibit K -- Maintenance Responsibility Plan
1545F/452A
65-921
AMENDED AND RESTATED
LEASE AGREEMENT
THIS AMENDED AND RESTATED LEASE AGREEMENT, made this day of
September, 1985, by and between BAYSIDE CENTER LIMITED PARTNERSHIP, a Maryland
limited partnership (hereinafter referred to as "Developer"), and THE CITY OF
4IAMI, 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"), and with the prior approval of the City
Commission of Miami.
On January 14, 1985, the parties hereto entered into a certain Lease
Agreement with respect to the Bayside Specialty Center, Retail Parcel and now
desire to enter into this Amended and Restated Lease Agreement to incorporate
certain additional agreements the parties have reached since January 14, 1985
and intend to amend and restate the lease in its entirety.
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 Port Boulevard, Biscayne
Boulevard, Chopin Plaza and Biscayne Bay in the City of Miami, County of Oade,
State of Florida, which is collectively referred to herein as "Bayfront
Park". Bayfront Park is shown on the survey attached hereto as Exhibit A-1
and the Plat attached hereto as Exhibit A-2. For the purpose of this Lease
Bayfront Park consists of the following parcels:
(a) A parcel of land shown and designated on Exhibit A-1 as the
"Retail Parcel";
(b) A parcel of land shown and designated on Exhibit A-1 as the
"Garage Parcel";
(c) A parcel of land shown and designated on Exhibit A-1 as "Area B";
85-921
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AMENDED AND RESTATED
LEASE AGREEMENT
THIS AMENDED AND RESTATED LEASE AGREEMENT, made this day of
September, 1985, by and between BAYSIDE CENTER LIMITED PARTNERSHIP, a Maryland
limited partnership (hereinafter referred to as "Developer"), and THE CITY OF
MIAMI, a municipal corporation of the State of Florida (hereinafter referred
to as "the CITY"), acting by and through the CITY MANAGER (hereinafter
referred to as "the City Manager"), and with the prior approval of the City
Commission of Miami.
On January 14, 1985, the parties hereto entered into a certain Lease
Agreement with respect to the Bayside Specialty Center, Retail Parcel and now
desire to enter into this Amended and Restated Lease Agreement to incorporate
certain additional agreements the parties have reached since January 14, 1985
and intend to amend and restate the lease in its entirety.
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 Port Boulevard, Biscayne
Boulevard, Chopin Plaza and Biscayne Bay in the City of Miami, County of Oade,
State of =lorida, which is collectively referred to herein as "Bayfront
Park". Bayfront Park is shown on the survey attached hereto as Exhibit A-1
and the Plat attached hereto as Exhibit A-2. For the purpose of this Lease
Bayfront Park consists of the following parcels:
(a) A parcel of land shown and designated on Exhibit A-1 as the
"Retail Parcel";
(b) A parcel of land shown and designated on Exhibit A-1 as the
"Garage Parcel";
(c) A parcel of land shown and designated on Exhibit A-1 as "Area B";
135-921
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(d) A parcel of land shown and designated on Exhibit A-1 as "Area
A-4"; and
(e) A parcel of land shown and designated on Exhibit A-1 as "Area
A-5"; and
(f) The remainder of Bayfront Park as shown on Exhibit A-2.
' By authority of the City of Miami Charter, the City on March 18, 1983
authorized the publication of a request for proposals for the unified
development project to be known as Bayside Specialty Center for development of
a portion of the Bayfront Park, which development would include restaurants,
fast-food services, retail stores, markets and entertainment areas responsive
to urban, environmental and design factors inherent to the City waterfront and
Bayfront Park.
Developer submitted a proposal to develop a mixed -use project to be
known as "Bayside Specialty Center", which will consist of the following
improvements generally shown on the Site Plan attached hereto as Exhibit A-3:
(a) A pavilion, containing approximately 84,996 square feet of
leasable area on two levels ("North Pavilion"). The North Pavilion will
include specialty retail shops, a pedestrian street, and cafes and restaurants;
(b) A pavilion, containing approximately 82,636 square feet of
leasable area on two levels ("South Pavilion"). The South Pavilion will
contain fast food markets of ethnic food specialties, restaurants, cafes and
specialty retail shops;
(c) A market area, containing approximately 44,000 square feet of
open plaza and approximately 16,000 square feet of leaseable space, located -
jbetween the North Pavilion and the South Pavilion ("Market Square"). Market
Square shall contain a flower mart, produce mart, cafes, fisherman's boat
market, and a major water feature;
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(d) A pier park containing (1) a restaurant of approximately 15, 000
square feet, (2) a pedestrian park, (3) a marina pavilion, and (4) a floating
band pavilion ("Pier Park") to be located adjacent to the marina shown and
designated as "Miamarina" on Exhibit A-1;
(e) Reflections Restaurant, containing approximately 25,000 square
feet;
(f) Promenades, landscaped areas, viewing pavilions, access roads,
and certain pedestrian bridges described in the aforesaid proposal and other
related amenities; and
(g) Permanent parking garage containing not less than one thousand
two hundred (1,200) parking spaces on three and one-half levels ("Parking
Garage") ano a surface parking lot to be located on certain real property
owned by the City located immediately to the west and north of the North
Pavillion (hereinafter called the "Garage Parcel") which will be demised to
Developer pursuant to a lease agreement between the Developer and the City
("Parking Garage Ground Lease").
The City contemplates that the following improvements to Bayfront
Park will be constructed or caused to be constructed by the City:
(a) An Amphitheater;
(b) Phased replacement of seawalls and rip rap, and construction of
a baywalk with infill and water taxi piers in the location shown on Exhibit
A-2. Upon completion of construction of the baywalk and infill, such addi-
tional surface area shall be added to and incorporated into Bayfront Park; and
(c) Certain other improvements agreed to between City and Developer
having a value of $4,000,000, which improvements are hereinafter defined as
"Tenant Allowance").
6S_9n1
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It is the mutual desire of the parties that a portion of Bayfront
Park 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 understanding of this Lease,
but it is not intended to limit the rights or the obligations of the parties
except to the extent that it contains definitions and terms which are used
elsewhere in this Lease. The square footages and descriptions in this
Statement of Background and Purpose are for illustrative purposes only, and as
to such matters the approved Construction Plans prepared by the parties shall
control. Certain terms defined in the Statement of Background and Purpose are
more particularly defined in Section 1.2, to which reference is hereby made.
In consideration of the foregoing and of the rent, covenants, and
agreements hereinafter set forth, the parties do hereby covenant and agree as
follows:
ARTICLE I
EXHIBITS AND DEFINITIONS
—: Section 1.1 Exhibits. Attached hereto and forming a part of this
Agreement are the following Exhibits:
Exhibit A-1 -- Survey
Exhibit A-2 -- Bayfront Park Site Plan
Exhibit A-3 -- Site Plan
sW
Exhibit
B-1
-- Legal Description of Retail Parcel
Exhibit
B-2
-- Legal Description of Area A-4
Exhibit
B-3
-- Legal Description of Area A-5
Exhibit
C
-- Intentionally deleted
Exhibit
D
-- Form of Guaranty by The Rouse Company of Columbia,
Maryland
Exhibit
E
-- Permitted Encumbrances and Easements
Exhibit
F
-- Approved Concept Plans
Exhibit
G
-- Development Schedule
Exhibit
H
-- Minority Participation Agreement
Exhibit
I
-- List of Design Development Plans for Restaurant in
Area A-4
Exhibit
J
-- List of Drawings showing all easements and utilities
located at the Leased Property known to the Director
of Public Works of the City of Miami
Exhibit
K
-- Maintenance Responsioility Site Plan
Section 1.2 Defined Terms. AS used herein the term:
"Acceptable Operator" 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 Operator 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).
- 5 -
'ymay
.
"Additional Rental" means any and all payments required of Develooer
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.
"Area A-5 Minimum Rental" has the meaning ascribed to it in Section
2.5(a).
"Annual Basic Rental" has the meaning ascribed to it in subclause (i)
of Section 2.5(a).
"Arbitration Panel" has the meaning ascribed to it in Section 10.5
"Area A-411 and "Area A-510 have the meanings ascribed to them in the
Statement of Background and Purpose.
"Area 611 has the meaning ascribed to it in the Statement of
Background and Purpose.
"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.
11Auditor" means Peat, Marwick, Mitchell & Co. or such other nationally
recognized firm of certified public accountants as may be used from time to -
time by the Developer for the purpose of certifying the annual reports of its
financial condition required by law. Such firm of accountants must be a
member of the so-called "Big Eight" group of Accounting Firms.
"Bayfront Park" has the meaning ascribed to it in the Statement of
Background and Purpose.
"Bayside Specialty Center" has the meaning ascribed to it in the
Statement of Background and Purpose.
6S-921
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i
t "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.
2.5(a).
"Area A-5 Minimum Rental" has the meaning ascribed to it in Section
"Annual Basic Rental" has the meaning ascribed to it in subclause (i)
of Section 2.5(a).
"Arbitration Panel" has the meaning ascribed to it in Section 10.5
"Area A-V and "Area A-5" have the meanings ascribed to them in the
Statement of Background and Purpose.
"Area B" has the meaning ascribed to it in the Statement of
Background and Purpose.
"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 Peat, Marwick, Mitchell & Co. or such other nationally
recognized firm of certified public accountants as may be used from time to
time by the Developer for the purpose of certifying the annual reports of its
financial condition required by law. Such firm of accountants must be a
member of the so-called "Big Eight" group of Accounting Firms.
"Bayfront Park" has the meaning ascribed to it in the Statement of
Background and Purpose.
"Bayside Specialty Center" has the meaning ascribed to it in the
Statement of Background and Purpose.
85-921
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"Capital Improvements" means any addition to the Project or the
construction of any additional Improvements or other construction in, upon or
constituting part of the Leased Property (i) occurring subsequent to the date
on which the entire Project is "open for business", (ii) the cost of which is
reasonable and verifiable and may be capitalized and depreciated in accordance
with generally accepted accounting principles and (iii) the cost of which is
not included in the construction and/or permanent financing of Development
Cost.
"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.
"City Improvements" has the meaning ascribed to it in Section 2.9.
"City Maintenance Area" has the meaning ascribed to it in Section 3.5.
"City Storm Sewer Easement" has the meaning ascribed to it in
subclause (ii) of Section 2.3(a).
"the City Manager" has the meaning ascribed to it in the opening
paragraph of this Agreement.
"Common ArEa" means those areas and facilities which may be furnished
by Developer within the Leased Property for the non-exclusive general common
use of Subtenants and other occupants of the Improvements, their officers,
agents, employees and customers, including (without limitation) all malls,
courts, ramps, landscaped and planted areas, eating and picnic areas,
retaining walls, stairways, escalators, elevators, fire corridors, bus stops,
first aid stations, comfort stations or restrooms, civic facilities, meeting
85-921
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rooms, loading docks and areas, delivery passages, package pick-up stations,
sidewalks, walkways, roadways, parking and loading areas, and other similar
areas, facilities and improvements.
"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.
"Construction Plans" has the meaning ascribed to it in Section 3.3.
"County Easement" has the meaning ascribed to it in subclause (i) of
Section 2.3(a).
"Cumulative Credit Balance Account" has the meaning ascribed to it in
Section 2.5(a).
"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 of the Developer's estate in the Leased Property
and the Improvements and on borrowing to finance Capital Improvements;
provided, however, that in the event of a foreclosure of any Leasehold
Mortgage or the conveyance of Developer's estate in the Leased Property and
the Improvements to any Lender by deed in lieu of foreclosure, or in the event
of the termination of any lease or sublease arising out of a Sale-Subleaseback
Transaction of 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
i
lieu of foreclosure or lease termination.
6Jr"923
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"Default Rate" has the meaning ascribed to it in subclause (c) of
Section 2.5.
"Developer" has the meaning ascribed to it in the opening paragraph
of this Agreement.
"Development Costs" means an amount, provided in reasonable detail to
the City by an executive officer of Developer and acceptable to Developer's
Leasehold Mortgagees or Lender/Landlords, equal to the aggregate of all costs
and expenses actually incurred by Developer for the purpose of and properly
allocated to the initial development and construction of the Developer
Improvements at the Leased Property (together with any and all improvements
made by Developer on behalf of 'the -City in areas adjacent to the Leased
Property not paid for by the City), including (without limitation or
duplication):
(1) Design, planning, architectural and engineering fees, costs
and expenses; and presentation costs and expenses;
(2) The cost of labor, equipment, supplies, materials and
services paid to contractors and subcontractors;
(3) Fees and expenses paid to contractors and subcontractors;
(4) Legal and accounting costs, fees and expenses;
(5) Interest, commitment fees, points and other financing costs
incurred in arm's length transactions, and interest on money borrowed by
Developer from its parent, affiliated entities or subsidiaries in connection
with the development of the Bayside Specialty Center at a cost not greater
than the borrowing cost incurred by such parent, affiliate or subsidiary;
(6) The cost of property, liability, workmen's compensation,
title and other insurance;
(7) The cost of obtaining permits and licenses, and all Public
Charges;
(8) Utility relocation costs and expenses and tap -in fees or
other fees for connection to utility systems and utility services during
construction;
(9) All costs and expenses incurred in connection with the
negotiations and execution of this Lease;
(10) The cost of initially furnishing and equipping management
and promotion offices in the Improvements;
(11) The cost of providing, furnishing, equipping and operating
a field office at or near the Leased Property to or during construction of the
Improvements, including (without limitation) the costs of construction
trailers or other temporary office structures, barges and other vessels,
automobiles, office furniture, equipment, supplies, telephone, stationery,
postage and duplication;
(12) The salaries, fringe benefits, payroll taxes, travel and
moving expenses, and other costs of employment at such field office of (i)
managers and promotion directors (but only to the extent incurred prior to the
Cpening Date), and (ii) tenant coordinators, project accountants, secretaries,
clerks and similar office personnel;
(13) The cost of subleasing the Improvements for their initial
occupancy, including (without limitation) advertising costs and the fees,
commissions and expenses paid to leasing agents or brokers;
(14) The cost of pre -opening management, advertising and
publicity and the cost of any opening event or celebration including
advertising and publicity of same;
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(7) The cost of obtaining permits and licenses, and all Public
Charges;
(8) Utility relocation costs and expenses and tap -in fees or
other fees for connection to utility systems and utility services during
construction;
(9) All costs and expenses incurred in connection with the
negotiations and execution of this Lease;
(10) The cost of initially furnishing and equipping management
and promotion offices in the Improvements;
(11) The cost of providing, furnishing, equipping and operating
a field office at or near the Leased Property to or during construction of the
Improvements, including (without limitation) the costs of construction
trailers or other temporary office structures, barges and other vessels,
automobiles, office furniture, equipment, supplies, telephone, stationery,
postage and duplication;
(12) The salaries, fringe benefits, payroll taxes, travel and
moving expenses, and other costs of employment at such field office of (i)
managers and promotion directors (but only to the extent incurred prior to the
Opening Date), and (ii) tenant coordinators, project accountants, secretaries,
clerks and similar office personnel;
(13) The cost of subleasing the Improvements for their initial
occupancy, including (without limitation) advertising costs and the fees,
commissions and expenses paid to leasing agents or brokers;
(14) The cost of pre -opening management, advertising and
publicity and the cost of any opening event or celebration including
advertising and publicity of same;
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(15) The central office overhead cost of The Rouse Company or
any affiliate related thereto with respect to the development of the Project;
(16) Other reasonable costs and expenses which are of a type
usually and customarily incurred in connection with development of a specialty
retail center.
To the extent that any of the above items are paid for by the Tenant
Allowance, such item or portion thereof paid by. the Tenant Allowance shall not
constitute a Development Cost.
"Developer Equity Investment" means the amount equal to the sum of
(i) Development Cost, (ii) an amount equal from time to time to any unrecouped
and unfinanced cost of Capital Improvements made and paid for by Developer
after initial construction of the Developer Improvements, and (iii) Operating
Losses (excluding Rentals other than Additional Rental) less (iv) the net
proceeds actually received by Developer from any and all Leasehold Mortgages
or all Sale- Sub leaseback Transactions of Developer's estate in the Leased
Property and Improvements.
"Developer Improvements" has the meaning ascribed to it in Section
3.4.
"Developer Maintenance Area" has the meaning ascribed to it in
Section 3.5.
"Developer Removal Option" has the meaning ascribed in Section
2.5(a)(iv).
"Developer Utility Easement" has the meaning ascribed to it in the
subclause (i) of Section 2.3(b).
"Developer Vehicular Access Easement" has the meaning ascribed to it
in subclause (ii) 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).
"Fair Market Value" means the price, as of the date in question,
which a seller, willing but not obligated to sell, would accept for the City's
reversionary interest in the Leased Property and the Improvements or the
Developer's estate in the Leased Property and the Improvements (as the case
may be), and which a buyer, willing but not obligated to buy, would pay
therefor in an arm's length transaction.
"FEC Tract" means that certain parcel of land owned by the City of
Miami, located north of the Leased Property, shown and designated as "FEC
Tract" on Exhibit A-1.
"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".
"Foundation" has the meaning ascribed to it in Section 12.11.
"Grand Prix Agreement" has the meaning ascribed to it in Section
2.2(c).
"Garage Parcel" has the meaning ascribed to it in the Statement of
Background and Purpose.
a
"Improvements" shall mean all existing and future structures at the
Leased Property.
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85 -921
"Institutional Investor" has the meaning ascribed to it in subclause
(b) of Section 6.1.
"Insurance Trustee" has the meaning ascribed to it in Section 9.8(a).
"Leaseable Area" means the aggregate of the actual number of square
feet of leaseable area in the Leased Property designed for the exclusive use
and occupancy of rent paying Subtenants, excluding Common Areas, mezzanine
storage areas, areas used for management and promotion offices, mechanical
equipment penthouse, and truck docks and truck loading areas (including
covered receiving areas adjacent thereto).
"Leased Property" has the meaning ascribed to it in Section 2.1.
"Leasehold Mortgage" shall have the meaning ascribed to it in
subclause (b) of Section 6.1.
"Leasehold Mortgagee" and "Lender" shall have the meanings ascribed
to them in subclause (b) of Section 6.1 and shall be used interchangably.
"Lender/Landlord" means a lender, and any successor, assignee,
transferee or designee of such lender, to which, in connection with the
providing of financing to the Developer under this Lease, Developer's
leasehold interest in this Lease has been conveyed and which has thereafter
entered into a Financing Sublease with Developer.
"License" has the meaning ascribed to it in Section 2.2(c).
"Market Square" has the meaning ascribed to it in the Statement of
Background and Purpose.
"Management Costs" means (without duplication) Developer's reasonable
and prudent costs of performing management services for the Project, which
services shall include the following: (i) supervision of the performance of
all of Developer's obligations in accordance with the standards of operation
8 5'-921
- 13 -
and maintenance applicable to a high quality retail development, including
without limitation supervision of heating, ventilating, air-conditioning and
maintenance of the Project and the maintenance of all Common Area, and all
security systems and retail management personnel; (ii) enforcement of all
Subleases (including collection of minimum and percentage rents, collection of
other charges such as common area maintenance and heating, ventilating and
air-conditioning charges, and supervision of the performance of all obligation
under Subleases), termination and modification of existing Subleases when
required, renewal of such Subleases and obtaining new Subtenants for vacant
spaces; (iii) supervision of any merchants association; (iv) formulation of
all budgets for operation of the Project; (v) keeping books of account,
auditing such books at least annually, preparation of statements of account to
be submitted to the City showing the performance and condition of the Project,
and supervision of the payment of all ^hii.cations related to the operation
thereof; (vi) development of programs for the promotion of the Project
(including advertising and publicity programs); (vii) management of the
Project, including all normal legal fees, accounting, auditing, transportation
and travel salaries, home office expenses of the Developer, The Rouse Company
ano affiliates, and the salaries, benefits and expenses of all personnel
related to the supervision and administration of management services,
including all supplies and materials required in connection therewith; and
(viii) all reasonable on -site costs and expenses relating to on -site managers,
assistant managers, marketing directors and bookkeepers, incidental
out-of-pocket costs (including but not limited to office supplies, telephone,
stationery, postage and duplication), market research and analysis and
�S-92�,
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consumer surveys, legal and other proceedings involving Public Charges,
outside CPA audits relating to the Project or Subtenants, plans for minor
alteration of the Project, proceedings relating to condemnation or eminent
domain, legal proceedings for eviction or bankruptcy -related proceedings for
any Subtenant, and legal and other costs of extraordinary legal proceedings
concerning the Project, all whether performed by on -site personnel or
independent third parties.
"Miamarina" has the meaning ascribed to it in the Statement of
Background and Purpose.
"Minimum Base Rental" has the meaning ascribed to it in Section 2.5.
"Net Income Available for Distribution" means the Operating Income
for the applicable or pertinent period, minus the sum of (1) Operating
Expenses for the same period, (2) Debt Service Payments for the same period,
and (3) an amount equal to ten percent (10%) of Developer's Equity Investment
for the same period. Net Income Available for Distribution shall be
determineo on an accrual basis in accordance with generally accepted
accounting principles.
"North Pavilion" has the meaning ascribed to it in the Statement of
Background and Purpose.
"On -Site '•Ianagement Costs" means that portion of Management Cost
described in clause (viii) of the definition of the term "Management Costs".
"Opening Date" means the earlier of (1) the date upon which Subtenants
occupying eighty (80%) percent of the Leaseable Area (exclusive of temporary
tenants or pushcarts) are open and operating for business with the general
t
public in the Leaseable Area, or (2) the ninetieth day following issuance of
the Certificate of Final Completion.
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"Operating Contributions" means any and all payments made to Developer
by any Subtenant or other party as a contribution toward the cost of cleaning,
maintaining and repairing and securing any of the facilities situated outside
structures located on the Leased Property, or the cost of providing,
maintaining, repairing and operating heating, ventilating or air-conditioning
equipment (including, without limitation, the cost of energy therefor), or as
a contribution to any promotion fund, advertising fund or merchants
association administered by Developer, or in consideration of the furnishing
of utility services by Developer, or in consideration of the furnishing of
sprinkler or fire protection systems and devices, or as a reimbursement or
contribution toward the payment of any Public Charges or any other payment in
the nature of a reimbursement of, or contribution to, or charge in lieu of any
cost incurred by Developer in connection with the ownership or operation of
the Leased Property or the Improvements.
"Operating Expenses" means (without duplication) (1) all reasonable
and prudent expenditures for a Waterfront Specialty Center according 'Co t"e
then current standards of the industry accounted for by the accrual method in
accordance with generally accepted accounting principles made by the Developer
cr which the 'Developer is obligated to make in the operatics, ownership or
management of the Leased Property and the Improvements or any part of either,
including (without limitation) payroll and payroll expenses, business taxes
and Public Charges, supplies, license and permit fees, repair and maintenance
expenses, costs and expenses of cleaning, maintaining and repairing the
Project, utility charges, insurance premiums, auditing and professional fees
and expenses, publicity costs and expenses (including, without limitation,
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85-92I
contributions to any promotion fund, advertising fund or merchants association
administered by the Developer), (2) On -Site Management Costs, (3) three and
one-half 3-1/2% percent of Operating Income for Management Costs (exclusive of
On -Site Management Costs), (4) Minimum Base Rental, and (5) Area A-5 Minimum
Rental. In no event shall depreciation constitute a portion of Operating
Expenses. No expenses or costs incurred by Developer in connection with the
operation of the Parking Garage shall constitute Operating Expenses hereunder.
"Operating Income" means the Developer's gross operating revenues
arising out of or resulting from the rental and/or ownership and operation of
the Leased Property, the Improvements (other than funds received as the
capital contributions, insurance or condemnation proceeds, or the proceeds of
loans, financings or sale of property), including (without limitation) all
such operating revenues, Operating Contributions and other payments received
from Subtenants and all income from vending machines, telephones, pay toilets
and other sources located in the Leased Property or the Improvements. Prepaid
rents, prepaid payments and security deposits shall not be included in
Operating Income until earned, applied or forfeited. If Developer shall
receive insurance or condemnation proceeds or awards, the amount thereof which -
represents reimbursement to Developer for items accounted for as Operating
Expenses small be deemed to be Operating Income. No operating revenues made
by Developer with respect to the Parking Garage shall constitute a portion of
Operating Income hereunder.
"Operating Losses" means the amount by which the Operating Income for
the applicable period is less than the aggregate of Operating Expenses
(calculates for the purpose of this definition to include Annual Basic Rental
under item (4) of the definition for Operating Expenses in lieu of Minimum
Base Rental) plus Debt Service Payments for the same period.
85 -914211
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"Original Term" has the meaning ascribed to it in clause (c) of
Section 2.1.
"Owner" has the meaning ascribed to it in Section 5.1.
"Owner whose shares are publicly traded" has the meaning ascribed to
it in Section 5.1.
"Park Site" means the area comprising the Bayfront Park but excluding
the Leased Property and the Garage Parcel all as shown on Exhibit A-2. —
"Parking Garage" has the meaning ascribed to it in the Statement of
Background and Purpose.
"Parking Garage Ground Lease" has the meaning ascribed to it in the
Statement of Background and Purpose.
"Pier Park" has the meaning ascribed to it in the Statement of
Background and Purpose. -
"Possession Date" has the meaning ascribed to it in Section 2.1(d).
"Project" means the Leased Property plus the Improvements.
"Public Charges" has the meaning ascribed to it in Section 2.6.
"Reconstruction work" has the meaning ascribed to it in clause (b) of
Section 9.8.
"Refinancing" means any financing, by way of a Leasehold Mortgage or =
by way of a Sale -Leaseback Transaction of Developer's estate in the Leased
Property and Improvements, which results in Refinancing Proceeds being
available to Developer. Refinancing shall not include the initial long term
financing of the Project or any equipment leasing or the refinancing of any
interim or any construction financing obtained by Developer to finance its
development and construction obligations hereunder.
"Refinancing Proceeds" means the net proceeds available to Developer
i
out of any Refinancing after deduction of (i) an amount equal to Developer's
5-921
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f
1
Equity Investment, (ii) all amounts required to repay the then existing debt
secured by all Leasehold Mortgages being refinanced or to repurchase Devel-
oper's estate in the Leased Property and Improvements if previously conveyed
in a Sale -Leaseback Transaction, and (iii) all costs and expenses associated
with the negotiation and closing or consummation of such Refinancing.
"Removal Option" has the meaning ascribed to it in Section 2.5(a)(iv).
"Renewal Term" has the meaning ascribed to it in clause (c) of Section
2.1.
"Rent Commencement Date" means the date described as "Rent
Commencement Date" on Exhibit G attached hereto, subject to extensions or
adjustments thereto for a period equal to any delay in he occurrence in the
Completion Date due to Unavoidable Delays, as defined in Section 7.4.
"Rental" has the meaning ascribed to it in clause (a) of Section 2.5.
"Rental Year" means a calendar year consisting of twelve (12)
consecutive calendar months beginning on January 1 and ending on December 31
of each year of this Lease. The first Rental Year during the term of this
Lease shall commence on the Opening Date and end on December 31st of the same
calendar year in which the Opening Date occurs, and the Rental shall be
apportioned therefor. Any portion of the term remaining after the end of the
last full Rental Year shall constitute the final Rental Year, and Rental shall
be apportioned therefor.
"Restaurant Facilities" has the meaning ascribed to it in Section
"Restaurant Lease" has the meaning ascribed to it in Section 2.10.
"Restaurant Parcel" has the meaning ascribed to it in Section 2.10.
6S-9ni,
t..
"Sale-Subleaseback Transaction" means Developer's sale to a Lender/
Landord of all or a substantial portion of Developer's interest in this Lease,
ano the subsequent execution of a sublease ("Financing Sublease") between
Lender/Landord and Developer.
"Section", "subsection", "paragraph", "subparagraph", "clause", or
"subclause" followed by a number or letter means the section, subsection,
paragraph, subparagraph, clause or subclause of this Agreement so designated.
"South Pavilion" 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 and Improvements.
"Subtenant" means any person, firm, corporation or other legal entity —
using or occupying or entitlea to use or occupy any part of the Leased
Property or the Improvements under a Sublease.
"Supplemental Agreement" has the meaning ascribed to it in Section
2.2(c). —
"Tenant Allowance" means those certain improvements to be agreed upon
oetween the City and the Developer to be made by Developer at the City's cost
to the Leased Property having an aggregate cost of Four Million Dollars
(�4,000,000) in consideration of Developer entering into this Lease.
"Transfer" has the meaning ascribed to it in Section 5.1.
"UDAG has the meaning ascribed to it in subclause (e) Section 2.1.
-- I
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�S-921
a
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"Waterfront Specialty Center" means a retail complex situate on or
near a major body of water having a wide variety of specialty retail and
restaurant establishments and other food related uses. Examples of Waterfront
Specialty Centers include but are not limited to Faneuil Hall Marketplace in
Boston, Massachusetts, Harborplace in Baltimore, Maryland and South Street
Seaport in New York, New York.
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. The City demises and leases to Developer, and Devel-
oper takes and hires from the City, all of the area described as Retail
Parcel, Area A-4 and Area A-5 as shown on Exhibit A-1 and more particularly
oescribed in the legal descriptions attached hereto as Exhibits B-1, B-2 and
9-3 together with the buildings, structures, improvements and equipment
thereon and together with and. subject to the restrictions, conditions,
covenants and easements hereinafter mentioned, reserved or granted (the "Leased
Property"). The City and Developer recognize that the boundaries of the Leased
Property may require minor adjustments to accommodate the Improvements con-
templated pursuant to the Construction Plans. Should the parties agree a
modification is required, Exhibits B-1, B-2 and/or B-3 to this Lease shall be
amended accordingly.
85-9211
City shall have the right, but not the obligation, to construct the
proposed light tower on Area A-5. Within one (1) year from the Completion
Date, Developer shall notify the City Manager whether or not Developer intends
to construct the proposed improvement on Area A-4 and/or to occupy the
proposed light tower to be constructed by the City on Area A-5. If, within
such one (1) year period, the Developer elects not to construct on Area A-4 or
to not occupy the proposed light tower on Area A-5 or if the City has not
decided to construct the improvements on Area A-5, this Lease shall terminate
as to such Area and same shall be deemed to be included in the Park Site. If
Developer elects to construct improvements on Area A-4, such improvements must
be substantially in accordance with the design development plans approved by
the City Commission and made a part of this Agreement as Exhibit I.
New structures shall be limited to a maximum height not to exceed that
of the existing Restaurant Facilities (50 feet above grade, 57 feet above mean
water level) with such minor exceptions as the City Manager in the interest of
good architectural design shall approve in connection with his approval of
Construction Plans. Buildings on the Leased Property shall not exceed a total
of 200,000 square feet of Leaseable Area of New Construction plus a bonus of
42,000 square `eet of Leaseable Area of new construction to which the Developer
shall be entitled upon demolition of the existing Bayfront Municipal
Auditorium.
(b) Original Term. To have and to hold the Leased Property for a
term of forty-five (45) years, commencing on the first day of the month next
following the Possession Date. 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
FI5-921
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termination dates of the Original Term, determined in accordance with this
Agreement.
(c) Renewal Term. Developer is granted an option to renew this Lease
from time to time upon the same terms and conditions, except as otherwise
expressly provided, for up to two (2) additional terms (each called a "Renewal
Term") of fifteen (15) years each, commencing at the expiration of the Original
Term or the previous Renewal Term, as the case may be, and terminating on the
fifteenth (15th) anniversary of such expiration, by giving the City express
written notice of a Renewal not less than six (6) months before the date on
which such Renewal Term is to commence. At the City's option, such renewal
request shall not be granted if at the expiration of the Original Term or the
immediately preceding Renewal Term, as the case may be, an Event of Developer's _
Default shall have occurred and be continuing. Within thirty (30) days after
commencement of a Renewal Term, 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 bade County setting
forth the beginning and termination dates of the Renewal Term, determined in
accordance with this Agreement.
(a) Possession of Leased Property. The City shall deliver
possession of the Leased Property and the existing Improvements to Developer,
and Developer shall take possession thereof within thirty (30) days after the
following shall have occurred:
(i) The City Manager shall have approved the Preliminary Plans
and Final Substructure Plans for the Developer Improvements to be
constructed on the Leased Property, as provided in Sections 3.2 and 3.3;
(ii) The City Manager shall have received and approved the
t
t
commitment or commitments for the construction and permanent financing of
65-921
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the Developer Improvements to be constructed at the Leased Property, or
such other evidence as may be reasonably satisfactory to the City Manager
that such financing has been committed or is available which approval
shall not be unreasonably withheld. The City Manager must approve such
financing if same is on terms prevailing in the then current market place
in the United States. Developer may, at its option, self -finance all or a
portion of the Developer Improvements provided, however, that Developer
may not charge the Project an interest rate in excess of Developer's
parent's cost of borrowing;
(iii) The City Manager shall have received a guaranty in form
attached hereto as Exhibit D from The Rouse Company (a Maryland
corporation) of 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;
(iv) All governmental permits and approvals required to commence
construction of the Developer Improvements shall -have been obtained by
Developer;
(v) The City and Developer shall have entered into a mutually
acceptable agreement with respect to the Miamarina; and
(vi) The City shall be in a position to deliver the Restaurant
Parcel to Developer free and clear of all leases (other than this
Agreement), licenses (other than the Grand Prix Agreement, if applicable)
and other occupancy or possessory agreements.
)
The date that the City delivers possession of the Leased Property and
the existing Improvements to Developer in accordance with this paragraph (d),
by notice in writing, is herein called "Possession Date".
8S-921
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—24—
(e) Conditions Precedent. Developer shall not be obligated to take
possession of the Leased Property or to perform any other obligations under
tnis Lease unless and until the following shall have occurred or have been
obtained:
(i) the City Manager has approved all of the Construction Plans
for the Developer Improvements;
(ii) Developer has obtained all governmental approvals and
permits necessary for construction of the Developer Improvements;
(iii) the City shall have received all governmental approvals and
permits necessary for construction of the City Improvements and the City
Improvements located on the Retail Parcel shall be substantially completed;
(iv) Developer shall have obtained a commitment or commitments,
on terms and in a form satisfactory to Developer, from Institutional
Investors or Lender/Landords for construction and long term financing of
the Project;
(v) The City Manager has approved all construction plans for
the Parking Garage and other improvements to be constructed pursuant to
the Parking Garage Ground Lease;
(vi) The Developer has obtained all governmental approvals and
permits necessary for construction of the Parking Garage and other
improvements to be constructed pursuant to the Parking Garage Ground Lease;
(vii) The City Manager shall have obtained a firm commitment
acceptable to Developer for the issuance, sale and purchase of tax exempt
industrial revenue bonds on terms and in a form satisfactory to Developer
for construction of the Parking Garage and other improvements to be
constructed pursuant to the Parking Garage Ground Lease;
65-902.1011
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(viii) the City has entered into a Grant Agreement with the U.S.
Department of Housing and Urban Development for an Urban Development
Action Grant ("UDAG") in the amount of at least Six Million One Hundred
Thousand Dollars ($6,100,000), on terms and in a form satisfactory to
Developer;
(ix) The City and Developer shall have entered into a mutually
acceptable agreement with respect to the Miamarina;
(x) Developer shall be satisfied that the development of the
Project will not violate the Environmental Laws (hereinafter defined); and
(xi) Developer shall be satisfied that the City shall be able to
deliver the Restaurant Parcel to .Developer pursuant to the provisions of
subsection 2.1(d)(vi) hereof.
Developer and the City shall use good faith efforts to satisfy all of
the aforesaid conditions precedent. It is recognized by the parties hereto
that it is not the intention of either party to encumber the Leased Property
with this Lease for an indefinite period of time during the period of
satisfaction of the aforesaid conditions precedent and that therefore either
party shall have the right to terminate this Lease if all of the aforesaid
conditions precedent are not satisfied or waived on or before January 1,
1988. If Developer does not obtain satisfactory financing pursuant to
subsection (iv) above and shall solely as a result thereof terminate this
Lease, Developer shall pay to the City the amount of Two Hundred Fifty
Thousand Dollars ($250,000) as liquidated damages for such termination of this
Lease provided that the City Manager establishes that Developer did not
negotiate in good faith for such financing. There shall be no damages payable
to the City if the Developer shall be unable to obtain acceptable financing
after a good faith effort with respect to same. It is agreed that not with-
65-921
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standing the City's agreement to use good faith to satisfy the aforesaid
conditions precedent, the City shall not be required to expend any funds in
order to comply with any requirements of the statute or code set forth in (x)
above except as specifically set forth in Section 3.11 hereof.
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 by
Developer's express written statement to that effect delivered to the City or
the City Manager.
Notwithstanding the foregoing, should all of the conditions precedent
set forth in this Section 2.1(e), except for the conditions relating to
permanent financing in subsection (iv) above, and in Section 2.1(d)(ii) above
be satisfied and should Developer desire to take possession of the Project by
a notice in writing on a designated Possession Date, the City agrees to waive
the conditions precedent set forth in subsection (iv) above and Section
2.1(c)(ii) and thereafter there shall be no damages payable or any other
remedy available to the City if the Developer shall be unable to obtain the
financing referred to in said subsections.
(f) Developer Obligations Prior to Possession. Notwithstanding any—
thing herein to the contrary, until possession of the Leased Property and the
existing Improvements shall have been delivered to Developer pursuant to the
provisions of clause (e) of this Section 2.1, Developer shall not be required
to perform any of its obligations hereunder with respect to any portion of the
Project as to which possession shall not have been so delivered to the extent
85-92I
— 27 —
1
standing the City's agreement to use good faith to satisfy the aforesaid
conditions precedent, the City shall not be required to expend any funds in
order to comply with any requirements of the statute or code set forth in (x)
above except as specifically set forth in Section 3.11 hereof.
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 by
Developer's express written statement to that effect delivered to the City or
the City Manager.
Notwithstanding the foregoing, should all of the conditions precedent
set forth in this Section 2.1(e), except for the conditions relating to
permanent financing in subsection (iv) above, and in Section 2.1(d)(ii) above
be satisfied and should Developer desire to take possession of the Project by
a notice in writing on a designated Possession Date, the City agrees to waive
the conditions precedent set forth in subsection (iv) above and Section
2.1(c)(ii) and thereafter there shall be no damages payable or any other
remedy available to the City if the Developer shall be unable to obtain the
financing referred to in said subsections.
(f) Developer Obligations Prior to Possession. Notwithstanding any-
thing herein to the contrary, until possession of the Leased Property and the
existing Improvements shall have been delivered to Developer pursuant to the
provisions of clause (e) of this Section 2.1, Developer shall not be required
to perform any of its obligations hereunder with respect to any portion of the
! Project as to which possession shall not have been so delivered to the extent
85'9ti1
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i
that such possession shall be reasonably required for the performance of such
obligation.
The City shall indemnify, hold harmless and defend Developer from and
against any and all claims, actions, suits or demands of any nature whatsoever
with respect to any portion of the Leased Property arising out of any act or
omission of the City, its agents, servants, employees or contractors occurring
prior to delivery of possession thereof to Developer as herein provided.
Section 2.2 Restrictive Covenants. The restrictive covenants con-
tained in paragraphs (a) through (d) 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 and the Park Site (as
the case may be) 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, how:..::, that the development and opera-
tion of the Leased Property, the Developer Improvements and the City Improve-
ments in a manner which is in the best interests of both parties may from time
to time require the confirmation, clarification, amplification, or elaboration
of this Agreement in order to deal adequately with circumstances which may not
now be foreseen or anticipated by the parties. The parties reserve unto them-
selves 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.
(a) Use Prohibitions of the Leased Property. The Leased Property
hereby demised shall not be used for the following:
(i) Permanent or temporary housing or sleeping quarters; or
85--921
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4 1
(ii) Coinbox entertainment (pinball, video games, moving pictures
operated by coins); or
(iii) Casino gambling, games of chance or reward; or
(iv) Any unlawful or illegal business, use or purpose, or for
any business, use or purpose which is immoral or disreputable (including
without limitation "adult entertainment establishments" and "adult"
bookstores) or extra -hazardous, or in such manner as to constitute a
nuisance of any kind (public or private), or for any purpose or in any way
in violation of the certificates of occupancy (or other similar approvals
of applicable governmental authorities).
Developer agrees that if casino gambling shall in the future become
legal in the City of Miami,
(i) Developer may not use the Improvements or any portion of the
Leased Property for casino gambling purposes without the prior
consent of the City, and if the City shall consent, the parties
shall in good faith negotiate an appropriate modification or
amendment to this Agreement, which shall result in the Annual
Basic Rental to the City in excess of 35% of Net Income
Available for Distribution;
(ii) The City shall not use or authorize the use of any portion of
Bayfront Park (other than the Leased Property) for casino
gambling purposes without the prior consent of Developer, and if
Developer shall consent, the parties shall in good faith negoti-
ate an appropriate modification or amendment to this Agreement
f intended to reflect the changed conditions resulting from such
i
use of Bayfront Park.
i
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Developer acknowledges that if casino gambling shall become legal in the City
of Miami, the City may authorize the use of any of its property for same
(except as herein restricted), including, but not limited to the F.E.C. Tract
located directly to the north of the Leased Property.
(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 or national origin in the sale, lease, use or occupancy
thereof. Developer will comply with all applicable state and local laws, in
effect from time to time, prohibiting discrimination or segregation by reason
of race, color, religion, sex, or national origin in the sale, lease or
occupancy of the Leased Property.
(c) Permitted Uses for Leased Property. Except for the limited use
by Miami MotorSports, Inc. pursuant to (i) a license agreement entered into
between the City and Miami MotorSports, Inc. on June 14, 1982, as amended by
an amendment to such license agreement between the City and Developer on
January 14, 1985 (the "License"), and (ii) an agreement (the "Supplemental
Agreement") among Developer, the City and Miami MotorSports, Inc. on January
14, 1985 (the License plus the Supplemental Agreement hereinafter collectively
the "Grand Prix Agreement"), the only uses permitted on the Leased Property
are retail, recreation, mooring of boats along the sea wall located on the
portion of the Leased Property adjacent to Biscayne Bay, parking and office
(provided that such office uses shall be limited to management offices and
other office uses commonly found in retail centers). For the purpose of this
Lease "retail" shall mean sale of any and all commodities or services to the
consumer, including (without limitation) restaurants, facilities for the sale
i
85-921
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"rt :.;.
of food or alcoholic (including beer and wine) and non-alcoholic beveraaes,
merchandise, and services customarily found in urban retail centers similar to
the Project.
(a) Use Prohibitions of the Park Site and Garage Parcel. The
parties acknowledge and agree that the Leased Property is surrounded by the
Park Site and Garage Parcel and that, consequently, the manner in which the
Parr Site and Garage Parcel is or may be used from time to time will have a
direct and material affect on the use and value of the Leased Property and the
Improvements. In consideration of the foregoing and of the Rentals reserved
by it under this Lease, the City, as the owner of the Park Site and the Garage
Parcel, for itself, its successors and assigns, covenants and agrees with
Developer, its successors and assigns that:
(i) The City will not permit any use of the Garage Parcel,
Miamarina, the baywalk or the docks on the Park Site which would detract
from the use of the Leased Property or which would materially obstruct the
view of Biscayne Bay from the Leased Property, including (without
limitation) any such use by vessels using the docks or the Miamarina.
(ii) The City will not, without first obtaining the written
consent of the Developer, (1) construct any fence of barrier between the
Park Site, the Garage Parcel and the Leased Property, or (2) make or
permit substantial alteration in the Park Site or the Garage Parcel or
permit any structure.on the Park Site or the Garage Parcel which will
substantially adversely affect the access to and from the Leased Property,
or be inconsistent with the use of the Leased Property;
(iii) The City will not sell the Park Site or the Garage Parcel
except to a party who shall agree to expressly assume the City's
ooligations under this Agreement and who shall have the authority to
assume and perform the same as provided for unaer Section 5.6; 85-902
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9
I
(iv) Except with respect to Areas A-4 and A-5 which may be used
by the City for any lawful purpose if the City shall terminate this Lease
with respect to same pursuant to Section 2.1(a), and except for the —
temporary uses permitted pursuant to the Grand Prix Agreement, the Park
Site will, during the term of this Lease and any renewals hereof, be open
to the general public and shall be devoted only to public park uses; and
(v) The City will coordinate its ongoing planning and
implementation efforts relating to the construction of improvements to and
the use of the Park Site and Areas A-4 and A-5 with Developer (including,
without limitation, the staging of promotional events and entertainment
activities and construction activities) so that the making of improvements to
and the use of such area will not materially adversely effect the Developer's
and Subtenant's use and enjoyment of the Leased Property.
The City agrees to impose the use restrictions affecting the Garage
Parcel hereinabove set forth, from time to time, on the tenant's estate under
the Parking Garage Ground Lease and, so long as the Parking Garage Ground
Lease in in effect, Developer agrees to look solely to such tenant with
respect to the enforcement of its rights hereunder as same apply to the Garage
Parcel provided that the City shall have imposed such use restrictions on such
party.
Notwithstanding the provisions of the preceding paragraph, the City
agrees that at all times during the term hereof or of any new lease entered
into pursuant to Article VI hereof, the City will operate or require the
tenant under the Parking Garage Ground Lease to operate the Parking Garage as
a public parking facility.
(e) Enforceability. It is intended and agreed hereby that the
restrictive covenants contained in this Section 2.2 shall be binding upon the
85-91012111
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City and the Developer, their respective successors and assigns, and shall be
covenants running with the land and shall be for the benefit and in favor of,
and enforceable by, the City and Developer respectively, as the case may be;
provided, however, that such covenants shall be binding on Developer, and the
City, and their respective successors in interest and assigns, only for such
period as each shall have (i) fee title to the Leased Property, the Park Site
or any part of either, 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. The following easements presently exist:
(i) the easement for a 72 inch underground force main, more -
particularly shown and designated as the "County Easement" on Exhibit A-1
hereto;
(ii) the 20 foot storm sewer easement more particularly shown
and designated as the "City Storm Sewer Easement" on Exhibit A-1 hereto;
(iii) such other easements as are described on Exhibit E.
(t) 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 replace utility facilities such
as water, gas, electric, and telephone lines and storm and sanitary sewers
underground within portions of the Park Site, and any other property owned
oy the City which is not a dedicated street, in the location shown there-
fore on the approved Construction Plans or in such other locations as may
be approved by the City Manager from time to time;
FS-901211 1
(ii) the non-exclusive right and easement (the "Developer
Vehicular Access Easement") for the unobstructed access by service and
emergency vehicles to and from the Leased Property (x) to Biscayne
Boulevard, (y) over and across Port Boulevard to Biscayne Boulevard and (z)
over and across the Park Site to Biscayne Boulevard (as Port Boulevard and
Biscayne Boulevard are now or hereafter constructed), in the location shown
therefor on Exhibit A-1 or such other locations as may be approved by the
City Manager from time to time. Should Port Boulevard or Biscayne
Boulevard not be immediately adjacent to the Leased Property or the Park
Site, the area of land and related improvements permitted to be used as
the Developer Vehicular Access Easement shall include any strips of land
separating Port Boulevard or Biscayne Boulevard from either the Leased
Property or the Park Site;
(iii) the non-exclusive right to use portions of the Park Site in
common with the public, subject to the City's right to restrict areas in
the Park Site for reasonable periods during special events, for the
unobstructed pedestrian access to and from the Leased Property by Developer
and the Subtenants and their respective concessionaires, licensees,
officers, employees, agents, customers and invitees to all of the Park Site
now and hereafter existing including, but not limited to the baywalks,
sidewalks, playgrounds and other open spaces;
(iv) the non-exclusive right (but subject, nevertheless to
Developer's first having obtained any permits or licenses required by law
or applicable regulation), to use portions of the Park Site for the
staging of promotional events designed to attract patrons or customers to
the area at whatever is the then current charge for such use;
. i
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M
(v) the right and easement to install and maintain such
footings and underground supports along the boundaries of the Leased
Property extending not more than six (6) inches under and into the Park
Site, as shall be necessary in connection with the construction of the
Improvements and as shall be shown on the approved Construction Plans;
(vi) the right and easement to enter onto those portions of the
Park Site adjacent to the Leased Property for the purpose of performing
maintenance and repairs to the Improvements;
(vii) non-exclusive rights and easements for installation,
maintenance, repair and replacement of utility facilities and for
pedestrian and vehicular access to and from Area A-4 and/or Area A-5 over
and across the Park Site to the Leased Property and to Biscayne Boulevard,
at such locations as may be approved by the City Manager from time to time;
(viii) non-exclusive right and easement for pedestrian access
between the FEC Tract and the Leased Property at such locations as may be
approved by the City Manager, from time to time;
(ix) non-exclusive right and easement between the Garage Parcel
and the Leased Property and between the Park Site and Leased Property for
the construction, installation use and maintenance of pedestrian bridges
at locations shown on the Construction Plans or at such other locations as
the City Manager may approve from time to time. The cost of maintenance,
care and replacement of pedestrian bridges between the Leased Property and
Parking Garage shall be shared equally by the Developer and the lessee
under the Parking Garage Ground Lease. In the case of pedestrian bridges
between the Leased Property and the Park Site, Developer shall design the
Improvements for attachment of the pedestrian bridges. The cost of
construction, repair, replacement and maintenance of such pedestrian
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(v) the right and easement to install and maintain such
footings and underground supports along the boundaries of the Leased
Property extending not more than six (6) inches under and into the Park
Site, as shall be necessary in connection with the construction of the
Improvements and as shall be shown on the approved Construction Plans;
( vi ) the right and easement to enter onto those portions of the
Park Site adjacent to the Leased Property for the purpose of performing
maintenance and repairs to the Improvements;
(vii) non-exclusive rights and easements for installation,
maintenance, repair and replacement of utility facilities and for
pedestrian and vehicular access to and from Area A-4 and/or Area A-5 over
and across the Park Site to the Leased Property and to Biscayne Boulevard,
at such locations as may be approved by the City Manager from time to time;
(viii) non-exclusive right and easement for pedestrian access
between the FEC Tract and the Leased Property at such locations as may be
approved by the City Manager, from time to time;
(ix) non-exclusive right and easement between the Garage Parcel
and the Leased Property and between the Park J'ite and Leased Property for
the construction, installation use and maintenance of pedestrian bridges
at locations shown on the Construction Plans or at such other locations as
the City Manager may approve from time to time. The cost of maintenance,
care and replacement of pedestrian bridges between the Leased Property and
Parking Garage shall be shared equally by the Developer and the lessee
under the Parking Garage Ground Lease. In the case of pedestrian bridges
1
between the Leased Property and the Park Site, Developer shall design the
i
Improvements for attachment of the pedestrian bridges. The cost of
construction, repair, replacement and maintenance of such pedestrian
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bridges shall be borne by Developer and the City shall have a right to approve
the design of the pedestrian bridges, which approval shall not be unreasonably
withheld.
It is the intent of this Agreement that the Developer Improvements be
confined to the limits of the Leased Property.
(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:
(1) with respect to the County Easement and the Developer
Utility Easement, except to the extent shown on the approved Construction
Plans, no building or other structure shall be erected on the surface of
same without the prior written consent of the City, except that Developer
may place or construct street furniture, kiosks, or other removable
structures in any such area on the Leased Property, provided Developer
shall promptly remove the same, at its expense, upon the City's or
appropriate utility's request in order to permit the City or utility to
perform maintenance services on the utility lines in the easement area,
provided that in the design and construction of the Developer
Improvements, Developer will use its diligent efforts to cluster
underground utility lines and to minimize other construction below the
surface of the easement area;
(2) With respect to the portion of the City Storm Sewer Easement
area which may lie directly beneath the Developer Improvements, the City
and Developer agree, within a reasonable time period from the date hereof,
to enter into an easement agreement governing the use, maintenance, repair
and replacement of the utilities within such easement area in order to
provide Developer with sufficient assurances of the use and enjoyment of
that portion of the Developer Improvements affected thereby. F5 -9�..
-36-
f
(3) the party having the benefit of any such easements (A)
shall carry on any construction, maintenance and repair activity with
diligence and dispatch and shall use its diligent efforts to complete the
same in the shortest time possible under the circumstances, and (8) 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, and, except in the case of the County
Easement, 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 Improvements or on the Leased Property by Developer or
its Subtenants. City shall use its diligent efforts to obtain approval of
Dade County to the foregoing provision with respect to the County Easement;
(4) except in the event of emergency, the party having the
benefit of such easement shall not carry on any construction, replacement,
maintenance or repair activity at any time in such easement area unless
such party shall have given at least sixty (60) days advance notice to the
other party of its intention to do so; provided, however, that in the
event of an emergency affecting the County Easement the City will use
diligent efforts to obtain the consent of the Dade County Water and Sewer
Authority to such notice requirements;
(5) 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;
(6) Developer and City agree to enter into an easement
agreement governing the use, maintenance, repair and replacement of the
City Storm Sewer Easement, and any other utility easement area which may
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0
be located under the Improvements within a reasonable time period from the
date of this Lease in order to provide the Developer with sufficient
assurances with respect to the use and enjoyment of that portion of the
improvements affected thereby; and
(7) with respect to the Developer Vehicular Access Easement,
the City may from time to time, erect signs, temporary barriers or other
reasonable traffic controls designed to limit the use of the easement
areas to service and emergency vehicles.
Annexed hereto as Exhibit J is a list of drawings showing all easements
affecting the Leased Property, which survey has been reviewed by the Director
of Public works of the City of Miami and found by him to be accurate.
(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 tnat
from time to time at the request of the other party, it shall execute and
aeliver 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
cesirable. The City Manager is hereby authorized and empowered on behalf of
the City to execute and deliver, from time to time, any such confirmatory
documents or instruments.
Section 2.4 Title of Leased Property. The City represents,
covenants and warrants that it has good and merchantible fee simple title to
the Leased Property and all of the improvements thereon, which title is free
8S-%2111
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1
and clear from all covenants, easements, liens, clouds of title on other
restrictions except for those listed in Exhibit E.
Section 2.5 Rental.
(a) Rentals Payable. Developer covenants and agrees to pay the City
as rental ("Rental") for the Leased Property, the following:
(i) During the Original Term, an annual sum (the "Annual Basic
Rental") equal to the greater of:
(1) Thirty-five (35%) percent of Net Income Available for
Distribution of the Project; or
(2) The Minimum Base Rental for each Rental Year, as
follc s:
FULL RENTAL YEARS
MINIMUM BASE RENTAL
1-2
$ 325,000
3-6
$ 650,000
7-35
$1,000,000
36-45
As determined below
Notwithstanding the above, if in any given Rental Year, 35% of Net
Income Available for Distribution is less than the Minimum Base Rental, the
difference shall be credited to the Developer in an account known as the
"Cumulative Credit Balance Account" which credit shall accrue interest at
eleven (11%) percent, compounded annually. The maximum amount to be credited
to the Cumulative Credit Balance Account in any Rental Year shall be no
greater than the Minimum Base Rental for that Rental Year. In any subsequent
Rental Year for which a credit balance exists in the Cumulative Credit Balance
Account, the Rental due to the City, shall be reduced, to not less than that
z
Rental Year's Minimum Base Rental, by an amount applied from the remaining
credit balance in the Cumulative Credit Balance Account. This procedure shall
continue each Rental Year until the credit balance in the Cumulative Credit
Balance Account is reduced to zero. Further, the Minimum Base Rental may, at
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6 6
the City's option, be increased to an amount in excess of $1,000,000 at the
beginning of the thirty-sixth (36th) Rental Year if the average of the Annual
Basic Rental paid during the preceding three (3) Rental Years shall exceed
$1,000,000, in which event the Minimum Base Rental for the thirty-sixth
through forty-fifth Rental Years shall be the average of the Annual Basic
Rental paid by Developer for the thirty-third, thirty-fourth and thirty-fifth
Rental Years.
(ii) During each Renewal Term, an annual sum equal to the
greater of:
(1) The average of the Annual Basic Rental paid during the
three (3) consecutive Rental Years prior to the end of the Original
Term or the preceding Renewal Term, as the case may be and shall, at
the City's option, be the New Minimum Base Rental, or
(2) Thirty-five (35%) percent of the Net Income Available
for Distribution;
provided, however, that in no event may such annual rent during (i) the First
Renewal Term be less than the Minimum Base Rental payable during the final
year of the Original Term, and (ii) the Second Renewal Term be less than the
Minimum Base Rental payable during the final year of the First Renewal Term.
(iii) Developer shall pay during the Original Term and any Renewal
Term to the City as Additional Base Minimum Rental an additional sum of
Fifty Thousand Dollars ($50,000) per Rental Year ("Area A-5 Minimum
Rental") upon occupancy of Area A-5 pursuant to Section 2.1 hereof.
(iv) Pursuant to the terms of the License, the City is obligated
to pay Miami MotorSports, Inc. the amount of $100,000 as consideration for
the granting of the Removal Option (hereinafter defined) by Miami
MotorSports, Inc. Developer agrees to pay said $100,000 to the City on
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0
the Possession Date. Such amount when paid by Developer shall be credited
to the Cumulative Credit Balance Account. Developer and the City further
agree that (i) Developer shall have the right to cause the City to exercise
the Removal Option during the years 1986, 1967 and 1988, inclusive, by
giving notice in writing to same within forty-five (45) days after the
previous year's Race Event, provided that Developer shall pay to the City
$50,000 each time Developer shall cause the City to exercise the Removal
Option. The parties further agree that Developer shall pay $50,000 to the
City with respect to each time the City shall exercise the Removal Option
as to any Race Event which is scheduled to occur while the Bayside
Specialty Center is under construction, notwithstanding the fact that
Developer shall not have caused the City to exercise same. Developer shall
pay such sums to the City upon each date that the City is required to pay
Miami MotorSports, Inc. with respect to same. If Miami MotorSports, Inc.
shall not conduct a Race Event with respect to any year for which Developer
snail have paid the City $50,000 as aforesaid, the City shall promptly
reimburse Developer said $50,000 and such sum shall be deducted from the
Cumulative Credit Balance Account. All sums paid by Developer pursuant to
this subparagraph 2.5(a)(iv) shall be credited to the Cumulative Credit
Balance Account.
As used herein, the term "Removal Option" shall mean the right granted
to the City in the License to require that the annual Grand Prix Race Event be
on a course located on Biscayne Boulevard and not located in any portion of
8ayfront Park.
(b) Continuous Operation. Developer covenants and agrees to
continuously operate the Project consistent with prudent business practices and
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AWA
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4
the standards of operation set forth in Section 4.2 hereof (considering twelve
(12) month use) in order to achieve a reasonable level of Profitability.
(c) Payment of Rental. Annual Basic Rental shall commence to accrue
on the Rent Commencement Date. The Area A-5 Minimum Rental shall commence
when the Subtenant thereof or the Developer shall open such premises to the
public for business (the "A-5 Rental Commencement Date"). Minimum Base Rental
and Area A-5 Minimum Rental shall be payable in equal monthly installments in
advance on the first day of each full calendar month following the Rent
Commencement Date, as the case may be, during the term of this Lease, the
first such payment to include also any prorated Minimum Base Rental for the
period from the Rent Commencement Date and/or the Area A-5 Rental Commencement
Cate to the first day of the full calendar month thereafter. Annual Basic
Rental in excess of Minimum Base Rental shall be determined each calendar
quarter and annually pursuant to the reports required under Section 2.5(e).
To the extent that Annual Base Rental for any calendar quarter may exceed
Minimum Base Rental for the same period, Developer shall pay the City the
difference forty-five (45) days after the close of each calendar quarter with
an adjustment to occur based upon each Rental Year one hundred twenty (120)
days after each Rental Year. Annual Basic Rental shall be payable without
notice or demand therefor and shall be paid to the City at the Office of the
Director of Finance, 3500 Pan American Drive, Miami, Florida 33133 or at such
other place as the City Manager shall designate from time to time in a notice
given pursuant to the provisions of Section 12.5. Any late payment shall
automatically accrue interest at a rate equal to two (2) percent above that
rate charged by the Citibank, N.A., of New York to its best commercial
customers, generally referred to as its prime rate ("Cefault Rate") from the
date that payment was due. Any overpayment of Annual Basic Rental at the end
- 42 -
of each mental Year shall be paid to Developer within thirty (30) days of
receipt of such report or, at the option of Developer, the Developer shall
credit such amount to the Rental due in the next Rental Year. If there is an
underpayment of Annual Basic Rental, Developer shell pay the City the amount
of the deficiency within thirty (30) days of the City's receipt of the report.
(d) Refinancing. In the event that Developer proposes to engage in
any Refinancing with respect to the Project or any portion thereof, Developer
shall give notice thereof to the City Manager not later than forty-five (45)
days prior to the consummation of the transaction or transactions by which
such Refinancing is accomplished. Such notice shall show, in reason`ble
detail, Developer's base estimates of the amount of the Refinancing Proceeds
and the expected affect of such Refinancing upon Rental and Net Income Avail-
able for Distribution for three (3) full Rental Years next following consum-
mation of such Refinancing. Within thirty (30) days after such notice is
given, the City shall elect, by giving notice of such election to the
Developer, either:
(i) to participate in such Refinancing, in which case the
,,eveloper shall pay or cause to be paid to the City, upon consummation of such
Refinancing, an amount equal to thirty-five percent (35%) of the Refinancing
Proceeds less any amounts then in the Cummulative Credit Balance Account and
thereafter Rental payments shall be determined by adjusting Debt Servi��
Payments and Developer's Equity Investment to reflect such Refinancing; or
(ii) not to participate in such Refinancing, in which case (x)
no portion of such Refinancing Proceeds shall be payable to the City and Rental
with respect to such portion of the Project that is refinanced shall
thereafter be determined in the same manner as prior to such Refinancing (that
is to say that in the determination of Rental with respect to such
portion of
C.5`9ti,
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19
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0
the Project that is refinanced, Debt Service Payments and Developer's Equity
Investment with respect thereto shall not be adjusted so as to reflect such
Refinancing, but shall continue on the same basis as prior to such
Refinancing), and (y) with respect to any subsequent Refinancing, Refinancing
Proceeds shall be calculated as though such prior Refinancing shall not have
occurred. If the City shall fail to make such election within said thirty (30)
day period, the City shall be deemed to have elected to not participate in such
Refinancing.
(e) 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 Section 12.5, auditable original or duplicate books
and records for the Project which shall disclose all information required to
determine Development Costs, Annual Basic Rental, Operating Contributions and
Operating Expenses and other information necessary to comply with the terms of
this Agreement. After five (5) days advance notice to Developer, the City
through its City Manager or his designee, shall have the right during business
hours to inspect such books and records and to make any examination or audit
tnereof which the City may desire. If such audit shall disclose a liability
for Rental in excess of the Rental theretofore paid by Developer for the period
in question, Developer shall promptly pay such additional Rental and if such
audit shall disclose an overpayment of the Rental theretofore paid, the City
shall promptly return the excess to the Developer.
Developer further covenants and agrees to deliver to the City
commencing as of the Rent Commencement Date within forty-five (45) days after
the close of each calendar quarter and after the termination of the Lease, a
statement showing, in reasonable detail, the computation of the Annual Basic
- 44 -
6S-92II
s
Rental, Area A-5 Minimum Rental, Operating Contributions, Operating Income,
Operating Expenses and Net Income Available for Distribution for the preceding
calendar quarter. The quarterly statement shall be signed and verified by an
appropriate, authorized officer or General Partner of Developer stating
specifically that such officer has examined the report, that such officer's
examination included such tests of Developer's books and records as such
officer considered necessary under the circumstances, and that such report
presents fairly the Rental due with respect to the preceding calendar
quarter. If Developer shall fail to deliver the foregoing statement to the
City within said period, or the City shall give written notice of its desire
to audit the quarterly statements the City shall have the right to either
conduct an audit itself or to employ an 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 calendar quarter. Developer shall
promptly pay to the City, as Additional Rental, the cost of any audit performed
ny or for the City, in the event the City's audit was in lieu of a quarterly
report by Developer or if the City audits the quarterly report at its own
initiative and demonstrates a discrepancy of more than three percent (3%) in
the amount of Annual Basic Rentals due to the City.
Developer shall provide the City with an annual Audited Financial
Statement, certified by an independent Certified Public Accountant, within one
hundred twenty (120) days after the close of each Rental Year which shall be
subject to the audit provisions of the previous subparagraph.
(f) Pre -Construction Contributions. At the times set forth below,
Developer shall pay to the City Three Million Six Hundred Fifty Thousand
($3,650,000) Dollars in the form specified below as Additional Rental, which
amount shall be recognized as a part of the Development Costs. These payments
85 `91421
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0
shall be retained by the City if this Lease is terminated (and a new lease has
not been entered into pursuant to subparagraph 6.1(c)(ix) below) by reason of
an Event of Developer Default. Said payment shall be in addition to any
damaaes that the City may be entitled to under this Agreement provided,
however, that such payment may constitute an offset against any damages a
court or the Arbitrators may award the City in connection with such Event of
Developer Default. The City covenants and agrees to use these funds in
Oulfillment of the purposes for which the funds are given, as specified below,
so long as as an Event of Developer Default has not occurred and is continuing
under the terms of this Agreement.
$1 Million To be paid to the City on the Possession Date,
such proceeds to be used by the City for
construction of improvements in Bayf ront Park.
$2.65 Million To be paid to the City on the Possession Date,
such funds to be paid to the City as reimbursement
with respect to the acquisition of all
outstanding rights in the Restaurant Parcel so
that same can be delivered to Developer on the
Possession Date, free and clear of any rights of
others except as set forth in Exhibit E provided,
however, that on the Possession Date, all
references contained in Exhibit E to any leases,
licenses (except with respect to the Grand Prix
Agreement, if applicable), or other occupancy or
possessory agreements with respect to the
Restaurant Parcel shall be deemed deleted.
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6S-921
0
C
a
The Developer shall not be obligated to deliver such letter of credit
or make such payment if Developer is not reasonably satisfied that the City
shall have budgeted and encumbered the amount of Four Million and No/100ths
Dollars ($4,000,000.00) by Ordinance of the City Commission, authorizing the
City Manager to pay such monies in fulfillment of this Agreement, and
encumbered in the City's account or accounts. The City hereby aqrees to oay
such monies to Developer to pay the cost of the Tenant Allowance items to be
constructed by Developer pursuant to a construction progress schedule and
disbursement agreement to be agreed upon between the City and Developer.
Notwithstanding the foregoing, Developer shall not be obligated to
make *,,e above -mentioned $2,650,000 payment until Developer has received
satisfactory evidence that all rights of any person or entity other than the
Developer or the City with respect to the Restaurant Facilities or any
benefits have terminated and are no longer in force and effect including any
encumbrances or exclusivity clauses which would adversely effect the
Developer's use and any of Leased Property and the Improvements. Such evidence
shall include (without limitation) copies of all executed documents relating
to such terminations and a title report prepared at Developer's cost,
inoicating any such interests or restrictions no longer exist.
Section 2.6 Covenants for Payment of Public Charges by Developer.
Developer, in addition to the Rental, covenants and agrees to pay and
discharge, before any fine, penalty, interest or cost may be added, all real
and personal property taxes, all ad valorem real property taxes, all taxes on
rentals payable hereunder and under subleases, public assessments and other
public charges including but not limited to electric, water and sewer rents,
rates and charges (all such taxes, public assessments and other public charges
8S-9,G..%
- 47 -
being hereinafter referred to as "Public Charges") levied, assessed or imposed
by any public authority against the Leased Property, including all
improvements thereon, provided, that Developer's obligation to pay and
discharge Public Charges levied, assessed or imposed against or with respect
to Leased Property shall not commence until the Possession Date.
Notwithstanding the provisions of this Section 2.6, Developer shall have the
right to contest the amount or validity, in whole or in part, of any Public
Charges by appropriate proceedings. The City agrees to consent to and/or
formally join in any such proceedings to the extent it may be allowed by law,
if such consent and/or joinder be required by law for the prosecution
thereof. Developer shall pay all charges for 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 ad
valorem real property taxes) against the Leased Property or the Improvements
with respect to the construction, operation, repair and maintenance of any
improvements the City is obligated to construct pursuant to this Lease or any
special assessment or other Public Charges for the purpose of repayment of the _
Tenant Allowances to be granted by the City pursuant to the terms hereof or
repayment of UDAG. The City retains all its rights to impose special
assessments or other public charges for all other purposes.
Developer, upon written request, shall furnish or cause to be
furnished, to the City Manager, official receipts of the appropriate taxing
authority, or other proof satisfactory to the City Manager evidencing the
GS-9,� i
I
I
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 Developer
Maintenance Area on Exhibit K. Developer and City may enter into an agreement
requiring the City to provide such security and protection within the
Developer Maintenance Area on Exhibit K. If the City and Developer are unable
to enter into such agreement, the Developer shall be responsible for providing
security and protection throughout the Developer Maintenance Area.
The City shall provide the same security and police protection for
the Park Site and the City Maintenance Area as is afforded all other City open
spaces with appropriate augmentation in the exclusive judgment of the City —
Manager during periods of high pedestrian activity including (without
limitation) during special public events.
Section 2.9 City Improvements. The City shall provide phased
replacement of seawalls ar,d riprap, construction of a bay walk with infill aril
water taxi piers adjacent to the Leased Property and inf ill to Bayf rout Park
and the Leased Property as more particularly described in the plans for the
City Improvements. Such improvements are collectively referred to throughout
this Lease as "City Improvements".
Section 2.10 Condition of Leased Property. On the Possession Date
the City shall deliver to the Developer possession of the Leased Property and
the existing improvements, free of any and all tenancies or other rights or
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claims of rights to its use and occupancy. Prior to the Possession Date, the
Leased Property and the Existing Improvements shall be maintained by the City
and delivered to Developer in good serviceable condition, ordinary wear and
tear excepted. The City agrees not to adversely or materially alter the
Leased Property or any Existing Improvements prior to the Possession Date
without Developer's prior written approval.
The obligations of Developer under this Lease (including, without
limitation, the obligations to pay Rental hereunder) are subject to the
delivery in good and serviceable condition (ordinary wear and tear excepted)
to the Developer on the Possession Date of the Leased Property and Improvements
located thereon as of the date of this Lease, including (without limitation)
the restaurant building and improvements ("Restaurant Facilities") located on
that portion of the Leased Property (the "Restaurant Parcel") more
particularly described in that certain lease agreement dated May 5, 1970 by
and between the City and Restaurant Associates Industries, Inc. ("Restaurant
Lease"), which is shown on Exhibit A-1. If at any time between the date of
execution of this Agreement and the Possession Date the Restaurant Facilities
are substantially damaged or destroyed, the City shall, at Developer's option,
which option must be exercised in writing within ninety (90) days from date of
such damage or destruction or from the Possession Date, as the case may be,
(i) immediately repair and restore the Restaurant Facilities, or (ii)
immediately assign to Developer all of the City's right, title and interest in
any payment, proceeding or award by any insurance company or other person on
account of the damage or destruction.
If the insurance proceeds either available to the City or Developer
are inadequate to complete the repairs and restoration of the Restaurant
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65--921.
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Facilities, the City or the Developer, as the case may be, shall repair or
restore to a size smaller than that existing prior to such damage and
destruction based upon plans and specifications approved by the City, which
approval shall not be unreasonably withheld or delayed if such reconstructed
facilities harmonize with the architectural motif of the Developer
Improvements and meet all other governmental approvals required.
Section 2.11 Roadways and Utilities. The City shall without
expense to Developer or public assessment against the Leased Property or
Improvements, 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, except for the County
Easement and the City Storm Water Easement, and the transfer to Developer of
all vacated City streets. The City shall also transfer to Developer all
easements and rights of way at the Leased Property within its control. All
termination, abandonment, transfer and relocation, as applicable, to be done
shall be cone or performed in accordance with provisions of this Section 2.11
V..
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 Developer
Improvements.
After the date Developer actually takes possession of the Leased
Property, Developer shall provide temporary access across the Leased Property
for persons authorized to use Miamarina, until the earlier to occur of (i) the
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4
commencement of construction of the Developer Improvements or (ii) the termi-
nation of the agreement dated June 4, 1981 between the City and New World
Marinas, Inc.
ARTICLE III
CONSTRUCTION OF IMPROVEMENTS
Section 3.1 Conformity of Plans. Preliminary Plans and Construc-
tion Plans and all work by Developer with respect to the Leased Property and
the construction of Developer Improvements thereon shall be in conformity with
this Acreement, the Miami Charter and Code, the South Florida Building Code,
and all other applicable state, county and local laws and regulations.
Section 3.2 Preliminary 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 F.
Developer shall submit to the City Manager at the times hereinafter set forth,
two sets of plans (the "Preliminary Plans"). For the purpose of this Lease,
"Preliminary Plans" shall consist of site plans and structure elevations and
sufficient detail to show site planning, architectural design and layout,
materials, huilding construction, landscaped design, access, streets, and
b 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 phase until the City
!tanager has approved a Site Drawing depicting all phases of the Development
and has approved the Preliminary Plans for the particular phase for which a
permit or other formal governmental approval is requested.
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The Preliminary Plans for all stages of the Developer Improvements to
ne constructed shall be submitted to the City Manager on the date set forth on
Exhibit G. Upon receipt of each set of Preliminary Plans representing a
certain stage of construction, the City Manager shall review the same and
shall promptly (but in any event within fifteen (15) days after such receipt),
give Developer notice of its approval or disapproval setting forth in detail
its reasons for any disapproval. The City Manager's right to disapprove the
Preliminary Plans submitted shall be limited to matters depicted in the
Preliminary Plans for Developer Improvements which do not conform substantially
to the Concept Plans or previously approved Preliminary Plans for other stages
of the Project or are new elements not presented in the Concept Plar,, 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 thirty
(30) 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 sixty (60) 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
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4
Developer Improvements which meet all of the grounds for disapproval of which
the City Manager has given notice not later than the first anniversary of the
date of this Lease. City and Developer shall in good faith attempt to resolve
any disputes concerning the Preliminary Plans.
Section 3.3 Construction Plans. For the purpose of this Lease,
"Construction Plans" shall consist of final working drawings and specifications
including (without limitation) the following information: (a) definitive
architectural drawings; (b) definitive foundation and structural drawings (the
"Final Substructure Plans"); (c) definitive electrical and mechanical drawings
including (without limitation) plans for all lighting facilities affecting the
exterior appearance of the Developer. Improvements; and (d) final specifica-
tions; but excluding drawings and specifications relating to subtenant
improvements. Not later than one hundred twenty (120) 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 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 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 gov-
ernmental ordinances, codes, plans or regulations. If no response from the
City is delivered to Developer within fifteen (15) days after the submission
of such Construction Plans, or any resubmission thereof as hereinafter pro-
2.
85~9,
- 54 -
vided, 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 sixty
(60) 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 Construc-
tion 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
I
regarding the Construction Plans. No approval by the City Manager of any Con-
struction Plans or Preliminary Plans pursuant to this Article shall relieve
Developer of any obligation it may have at law to file such Construction Plans
with any department of the City or any other governmental authority having
Jurisdiction over the issues or to obtain any building or other permit or
approval required by law.
Developer acknowledges that any approval given by City Manager
pursuant to this Article III shall not constitute an opinion or agreement by
the City that the plans are structurally sufficient or in compliance with any
laws, codes or other applicable regulations, and no such approval shall impose
any liability on or waive any rights of the City.
Developer agrees that it shall provide the City with copies of all
plans and specifications used in the construction of the Developer Improve-
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85-92I
FA
ments. 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 and no new lease is entered into pursuant to
subparagraph 6.1(c)(ix) below.
Section 3.4 Facilities to be Constructed. Developer agrees to
erect the Improvements described in subparagraphs (a) through (f) of the third
paragraph of the Statement of Background and Purpose on the Leased Property,
at its sole cost and expense which Improvements shall contain the facilities
more particularly described in the Construction Plans and shall conform to the
covenants contained in Section 2.2 and are referred to throughout this Lease
as "Developer Improvements".
Section 3.5 Maintenance of Park Site and Leased Property The
City, without cost or expense to Developer or public assessments against the
Leased Property or the Improvements, at all times during the term of this
Lease, (including any Renewal Term and any new lease executed pursuant to the
provisions of Sections 6.1 and 6.2) shall maintain and keep or cause to be
maintained and kept in good order, repair and appearance, commensurate with the
quality of maintenance found in the area shown and designated as "Developer
'aaintenance Area" on Exhibit J all of the property and improvements (including,
without limitation, the City Improvements) in the Park Site and those portions
of the Leased Property shown and designated as "City Maintenance Area" on
Exhibit K.
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
85-921
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aF
4
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 appear-
ance all of the property and improvements located in that portion of the Leased
Property shown and designated as Developer Maintenance Area on Exhibit J.
Section 3.6 Access. Prior to delivery of possession of the Leased
Property and the existing Improvements or any part thereof to Developer, the
City shall permit Developer access thereto whenever and to the extent
necessary to carry out the provisions of this Agreement. The City shall also
permit, including (without limitation) the placement of construction trailers
and staging area on or adjacent to the Leased Property at no cost to the
Developer, and the mooring of construction barges or other vessels at
Miamarina or the adjacent docks at locations reasonably acceptable to the City
Manager and Developer, at reasonable fees or charges to the Developer. The
provisions of this paragraph shall not take effect until Developer, at its
sole cost and expense, shall have secured or caused to be secured
comprehensive general public liability insurance as required in Article IX of
this Agreement.
Section 3.7 Construction Period. Developer shall commence
construction of the Developer Improvements not later than fifty-five (55) days
after the Possession Date or as soon thereafter as weather permits (but not
earlier than the approval of the Construction Plans) and shall complete the
same substantially in accordance with the Developer's approved Construction
Plans in accordance with the Development Schedule attached hereto as Exhibit
G. The City agrees to submit Preliminary Plans and Construction Plans for
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E35-921
46
City Improvements to Developer for review and comment for any City Improvements
to be designed by City. The City shall commence construction of the City
Improvements and shall complete the same substantially in accordance with the
City's approved Construction Plans in accordance with Exhibit G. At the
request of either party, the parties will execute and deliver from time to
time such certificates, documents or instruments as may be appropriate to
confirm the dates of commencement or completion of construction as above
provided, which certificates, documents or instruments may be recorded by the
party requesting the same at its expense.
Section 3.8 Progress of Construction. Subsequent to the delivery
of possession of the Leased Property. and existing Improvements 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
85--92I
Alb
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.
Section 3.9 Certificate of Final Completion. Promptly after
completion of the Developer Improvements on the Leased Property in accordance
with the provisions of this Agreement, the City Manager will furnish Developer
with an appropriate instrument so certifying (the "Certificate of Final
Completion"). The Certificate of Final Completion shall be in such form as
will enable it to be recorded among the Land Records of Dade County. If the
City Manager shall refuse or fail to provide such certification in accordance
herewith, the City Manager shall within thirty (30) 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 the Agreement, or is
otherwise in default, and what measures and acts, in the opinion of the City
Manager, are necessary for Developer to take or perform in order to obtain
such certification.
Section 3.10 Connection of Building to Utilities. Developer, at
P
its sole cost and expense, will install or cause to 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
Dace County Water and Sewer Authority. Developer shall pay for the additional
cost, if any, of locating ano installing new facilities for sewer, water,
electrical, ana other utilities as needed to service the Project.
65-9�1
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is
G
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 hall change such that the City Manager shall not have the
full authority to perform the obligations imposed on that office envisioned
unaer this Lease, then the City shall, promptly upon request of the Developer,
designate such other officer or department as may be appropriate to perform
the City Manager's obligations.
Developer shall secure and pay for any and all permits and approvals
necessary for proper construction and completion of the Developer Improvements
with the exception of the permits and approvals required pursuant to Section
380.66, Florida Statutes and/or Chapter 33A of the Dade County Code, if any
(the "Environmental Laws"). Developer shall secure any and all permits and
approvals, except for the Environmental Laws, 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.
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85--901211
In connection with the satisfaction of any requirements imposed by
the Environmental Laws the City agrees to pursue a Binding Letter of
Determination pursuant to Section 380.06(4)(a), Florida Statutes and/or a
Developers Agreement pursuant to Rule 9B-16.18, Florida Administrative Code _
and/or a Development Order pursuant to Section 380.06, Florida Statutes and/or
any other good faith means designated by the City to satisfy such
requirements. Should the City pursue a letter of interpretation or other Dade
County Development of County Impact process for any portion of the Leased -
Property, the City shall be financially responsible for filing and processing
any necessary documentation submitted in connection therewith, provided,
however, that nothing herein contained shall be construed to require the City
or Developer to take any act or expend any funds in order to comply with any
of the conditions contained within any Development Order, or other official
action, issued as a result of these pursuits. Developer shall have the right
to review and approve any such documentation prior to its submission to the
relevant governmental agency, and shall be notified of all meetings with
governmental staff or officials related to the processing of any of the
aforesaid administrative proceedings so that Developer or its representative
shall nave the option of attending such meetings. Developer agrees to
cooperate with the City to the maximum extent possible in these administrative
proceedings, including, but not limited to, providing such technical
assistance and information as Developer may have reasonably available to
contribute to the City's efforts.
Section 3.12 Compliance with Laws. Developer will comply in every
respect with any and all federal, state, county and municipal laws,
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4
ordinances, rules, regulations, orders and notices now or hereafter in force
or issued which may be applicable to any and all of the work or operations to
be done, performed or carried on by Developer under the provisions of this
Agreement including alterations and renovations pursuant to Section 3.15 of
this 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 Requirements. The times within
which Developer must submit Preliminary Plans, Construction Plans and evidence
of equity capital and commitments for mortgage financing, and the times within
which Developer must commence and complete the development of the Leased
Property and the construction of the Developer Improvements thereon as
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
ana 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,
provided, however, that no renovation or alteration which affects the exterior
appearance of the Improvements or substantially affects the overall character
and appearance of any interior mall, court or public circulation area shall be
made until such time as the City Manager shall have approved definitive
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ordinances, rules, regulations, orders and notices now or hereafter in force
or issued which may be applicable to any and all of the work or operations to
be done, performed or carried on by Developer under the provisions of this
Agreement including alterations and renovations pursuant to Section 3.15 of
this 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 Requirements. The times within
which Developer must submit Preliminary Plans, Construction Plans and evidence
of equity capital and commitments for mortgage financing, and the times within
which Developer must commence and complete the development of the Leased
Property and the construction of the Developer Improvements thereon as
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
ano 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
V
make such alterations or renovations thereof as it shall deem desirable,
provided, however, that no renovation or alteration which affects the exterior
appearance of the Improvements or substantially affects the overall character
and appearance of any interior mall, court or public circulation area shall be
made until such time as the City Manager shall have approved definitive
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construction plans and specifications therefore, which approval shall not be
unreasonably withheld or delayed. Developer must secure and pay for any and
all permits and approvals required to perform any of the contemplated
alterations or renovations.
Section 3.15 Art in Public Places. The Developer shall utilize 1/2
of 1 percent of all Developer construction funds ("hard -cost" line items only)
for art in the public areas of the Leased Property. In addition, Sixty
Thousand and No/100ths Dollars (t60,000.00) of the t4,000,000 to be paid by
the City in respect of the Tenant Allowance must be utilized for art in the
public areas of the Leased Property pursuant to Ordinance No. 8227.
ARTICLE IV
LAND USES
Section 4.1. Land Uses. Developer and the City agree, for
themselves and their successors and assigns, to devote the Leased Property,
ano the Park Site to the uses specified in this Agreement and to be bound by
and comply with all of the provisions and conditions of this Agreement.
Section 4.2. Character and Operation of Improvements. The parties
recognize and acknowledge that the manner in which the Leased Property and
Improvements are developed, used and operated are matters of critical concern
to the City by reason of (i) the prominence of the location in Bayfront Park
to the Leased Property, and (ii) the impact which the development of the
Leased Property is expected to have upon the surrounding Park Site and upon
the economic development of the downtown area of the City. In order to give
the City assurance as to the manner in which the Project will be used and
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85-901(211
operated, Developer agrees that at all times during the term of this Lease,
Developer will use its diligent efforts to operate the Project as a first
class Waterfront Specialty Center and to maintain a level of quality of
character and operation of the Project which is comparable to the level of
quality of character and operation, at the time of execution and delivery of
this Lease, to Harborplace in Baltimore.
From time to time Developer will establish such reasonable rules and
regulations governing the use and operation by Subtenants of their premises as
Developer shall deem necessary or desirable in order to assure the level of
quality and character of operation required herein; and it will use all
reasonable efforts to enforce such rules and regulations.
Notwithstanding the foregoing, Developer shall be bound by the
covenants and agreements set forth in this Section 4.2 only so long as the
development, use, operation, security and maintenance by the City of the Park
Site shall be of a comparable level of quality and character commensurate with
the quality and character of the Project.
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 or any part thereof or
any interest therein, or any contract or agreement to do any of the same;
8Jr-9,n 1
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any transfer of the stock of the General Partner of
Developer or of any Owner, other than an Owner whose shares are publicly
traded; or
(iii) any merger, consolidation or sale or lease of all or
substantially all of the assets of Developer or of any Owner, other than
an owner whose shares are publicly traded.
(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,
oirectly 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,
oirectly or indirectly, legally or beneficially, more than fifty percent
(50%) of the stock of the General Partner of Developer or other form of
ownership interest of any entity described in clause (i) or this clause
(ii), but shall not include any shareholder of an Owner whose shares are
publicly traded.
(c) "Owner whose shares are publicly traded" means an Owner:
(i) who has filed an effective registration statement with the
Securities & Exchange Commission (or its successor) with respect to the
snares of any class of its voting stock or of all classes of any other
form of ownership interest which includes voting rights; and
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0
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 of the
Bayfront Park possible; and
(c) The fact that a transfer of the stock of the General Partner of
Developer or a substantial part thereof, or any other act or transaction
involving or resulting in a significant change 'in the ownership or
distribution of such stock or with respect to the identity cf the parties in
control of Developer or the degree thereof, is for practical purposes, a
transfer or disposition of the leasehold interest in the Leased Property then
owned by Developer; the qualifications and identity of Developer and any Owner
are of particular concern to the community and the City. Developer further
recognizes that it is because of such qualifications and identity that the
City is entering into this Lease with Developer, and, in so doing, is further
willing to accept and rely on the obligations of Developer for the faithful
performance of all undertaking and covenants by it to be performed.
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G
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 (j) 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 six (6) months after taking possession of the
Project, shall have entered into an Acceptable Operator's Agreement as
aescribed in subsection 6(c)(iv) of this Agreement.
r
(c) Any Transfer directly resulting from a conveyance to a Lender/
Lanalord of the Developer's interest provided that such Transferee, within
thirty (30) days after taking possession of the Project, shall have entered
into an Acceptable Operator's Agreement as described in Subsection VI(c)(iv)
of this Agreement.
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SS- 921,
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a
(d) From and after the date that the Project has been in operation
for seven and one-half (7-1/2) years after the Opening Date, any Transfer to
(i) an Acceptable Operator consented to by the City Manager and City Com-
mission 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 Opera-
tors Agreement with an Acceptable Operator. If Developer shall dispute a
withholding of consent by the City pursuant to this subsection (d), Developer
may submit such dispute to arbitration pursuant to Section 10.5 hereof. The
basis for such arbitration shall be the reasonableness of the City Manager and
City Commission's decision as to whether or not such purchaser or operator met
the criteria herein set forth to qualify as an Acceptable Purchaser and/or an
Acceptable Operator.
(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
ciscretion, provicea that, within thirty (30) days after gaining possession of
the Project, the Transferee shall have entered into an Acceptable Operator's
Agreement as described in Subsection 6.1(c)(iv) of this Agreement.
(f) Any Transfer to an entity which is not an Owner, all of the
stock or other form of ownership interest of which is owned by an Owner.
(g) Any Transfer by a limited partner who is an Owner who is a Black
American or a Hispanic American to a Black American or a Hispanic American or
to an entity which is not an Owner but is owned or controlled by a Black
85-92I
J
American or a Hispanic American immediately after such Transfer, which is
consented to by the City Manager and City Commission, 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 Devel-
oper or any general partner of Developer.
(i) Any Transfer by an Owner who is a limited partner of Developer
and who also is a Black American or Hispanic American into a charitable trust,
a blind trust or for estate planning purposes for the immediate family; pro-
vided, however, as to a Transfer by an Owner for estate planning purposes, the
effective control of ownership is to remain in the transferor or another Black
American or Hispanic American.
(j) Any Transfer of any limited partner's interest in Developer as
security for capital contribution loans made by another partner and any
Transfer of such limited partner's interest to a new entity or person which is
consented to by the City Manager or City Commission pursuant to subparagraph
(g) above, or to another partner of Developer as a result of default in
repayment of a capital contribution loan.
Any consent to a Transfer shall not waive any of the City's rights to
consent to a subsequent Transfer. Any Transfer made in violation of the terms
hereof shall be null and void and of no force and effect.
Section 5.4. Notice of Transfer; Information as to Shareholders.
(a) With respect to any Transfer which must be approved by the City,
Developer shall give or cause to be given to the City written notice (including
all information necessary for the City to make an evaluation of the proposed
Acceptable Operator according to the requirements of this Agreement) of any
Transfer of which Developer or its officers shall have knowledge, not less
8S-92a,
:Iwm
than sixty (60) days prior to any such proposed Transfer and the City shall
within thirty (30) days of its receipt of such information, advise Developer
if it shall consent to same. If the City shall not consent to a Transfer, the
City Manager shall state the reasons for such disapproval in his notice to
Developer withholding his consent. If the City is not required to consent to
a Transfer pursuant to the terms hereof, Developer shall notify the City in
writing of same within thirty (30) days after the date of Transfer.
(b) Developer shall from time to time throughout the term of this
Lease as the City shall reasonably request, furnish the City with a complete
statement, subscribed and sworn to by the 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.
Section 5.5. Effectuation of Certain Permitted Transfers. No
Transfer of the nature described in subsections (d) and (e) of Section 5.3
shall be effective unless and until the entity to which such Transfer is made,
by instrument in writing satisfactory to the City Manager and in form
recoroable among the land records, shall, for itself and its successors and
85-92c1....
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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 for the purposes of this Section 5.5 and Article VI hereof, that any
Lender or Lender/Landlord transferee, their successors and assigns, 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 Lender's or of such
transferee's (or such successor's or assignor'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 a,y such
transferee of, or any other successor in interest whatsoever to, the leasehold
estate in the Leased Property or the Improvements, or any part thereof, shall
whatever the reason, not assume such obligations or so agree, shall not
(unless and only to the extent otherwise specifically provided in this Lease
or agreed to in writing by the City) relieve such transferee or successor of
or from such obligations, conditions or restrictions, or deprive or limit the
City of or with respect to any rights, remedies or controls with respect to
the leasehold estate in the Leased Property or the construction of the
Improvements.
Section 5.6. Transfers of the City's Interests. The City represents
and agrees for itself, its successors and assigns, that the City has not made
or created and that it will not, during the term of this Lease, make or create
or suffer to be made or created any total or partial sale, assignment,
conveyance, mortgage, trust or power, or other transfer in any mode or form of
85-9ti1
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or with respect to the City's reversionary interest in the Leased Property or
Improvements 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 Developer's and Lender'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 Lender.
Notwithstanding the foregoing, any mortgage or like encumbrance of the City's
interest shall be made expressly subject to the Lease and all Leasehold
Mortgages permitted hereunder.
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
provice to the City a copy of all Subleases for the Project. Developer shall
incorporate in all Subleases provisions concerning rentals and expenses that
are compatible with the Annual Base Rental formula in this Agreement.
Developer shall have the right to enter into Subleases of any part of the
Leased Property or Improvements at any time and from time to time during the
term of this Lease with such Subtenants and upon such commercially reasonable
terms and conditions as Developer shall, in its sole discretion, deem fit and
proper, provided, however, that Developer shall not enter into any Sublease
with any Subtenant which does not deal with Developer at arm's length without
first obtaining the City's approval, which approval the City may in its sole
72
8S-921
U
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 sixty (60) 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 sixty (60) days after submission of such Sublease and information, the
same shall be conclusively deemed to have been approved by the City.
Section 5.8. Minority Participation in Ownership. Developer agrees
that not less than twenty per:3nt (20%) of the ownership interest in Developer
shall be held by persons who are Black Americans or Hispanic Americans or
entities who would qualify as a Minority Business Enterprise controlled by
Black Americans or Hispanic Americans as the term "Minority Business
Enterprise" is defined in that certain Minority Participation Agreement
attachea hereto as Exhibit H. Notwithstanding any provision in this Lease to
the contrary, any transfer by any limited partner of the Developer in
violation of Article V shall be null and void, but shall not be deemed to be
an Event of Developer's Default. Notwithstanding the foregoirg, in the case
of a permitted Transfer of a limited partner's interest under subparagraph (j)
v
of Section 5.3., the Developer agrees that its partnership agreement shall
obligate the purchasing partner to resell the defaulting limited partner's
interest to another Black American or Hispanic American or entity owned or
controlled by a Black American or Hispanic American within two (2) years of
the initial transfer of the defaulting limited partner's interest if the
transfer is necessary to maintain the twenty percent (20%) ownership by Black
Americans or Hispanic Americans.
INA-M
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.
ARTICLE VI
MORTGAGE FINANCING; RIGHTS OF MORTGAGEE
Section 6.1. Leasehold Mortgage.
(a) Notwithstanding the provisions set forth in Article V hereof
regarding any Transfer, but subject to the provisions of this Article VI,
provided that an Event of Default has not occurred and is not continuing,
Developer shall have the right at any time and from time to time to encumber
the leasehold estate created by this Lease and any Improvements by Mortgage,
Sale-Suoleaseback 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 Develu�,_ * by an Institutional Inves*.,,r (as defined below)
for the sole purpose of securing the financing of the construction of any
Developer Improvements maae pursuant to the terms of this Lease or for the
long-term financing or refinancing of the Project. In no event may the amount
of such financing or refinancing exceed Development Costs. Developer shall
celiver to City promptly after execution by Developer a true and verified copy
of any Leasehold Mortgage (as defined below), or any Financing Sublease and
any amendment, modification or extension thereof, together with the name and
address of the owner and holder thereof. Developer may not encumber the
leasehold estate created by this Lease, or any Improvements as security for
any indebtedness of Developer with respect to any other property now or
hereinafter owned by Developer and/or The Rouse Company or by affiliates of
either of them, except that Developer may so encumber same as additional
security for a loan or loans granted to Developer in connection with the
Parking Garage.
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B5-92I
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(b) For purposes of this Article VI: "Institutional Investor" shall
mean any national bank organized under the laws of the United States or any
commercial bank, or any savings and loan• association, savings bank, trust
company or insurance company organized under the laws of the United States or
any state of the United States, or any pension, retirement or welfare trust or
fund supervised by a government authority of any state or the United States or
any such trust or fund administered by an entity which is supervised by a
governmental authority, and shall include any agent, designee or nominee of an
Institutional Investor which is wholly owned or controlled by such
Institutional Investor; "Leasehold Mortgage" shall mean a mortgage, deed of
trust or assignment of the rents, issues and profits from the Project, which
constitutes a lien on the leasehold estate created by this Lease and on the fee
interest of Developer in any Improvements during the term of this Lease; and
"Lender" and "Leasehold Mortgagee" shall mean an Institutional Investor who is
the owner and holder of a Leasehold Mortgage, provided, however, that the City
shall have no duty or obligation to determine independently the relative
priorities of any Leasehold Mortgages, but shall be entitled to rely
absolutely upon a preliminary title report current as of the time of any
determination of the priorities of such Leasehold Mortgage and prepared by a
generally -recognized title insurance company doing business in Miami, Florida.
(c) During the continuance of any Leasehold Mortgage until such time
as the lien of any Leasehold Mortgage has been extinguished, and if a true and
verified copy of such Leasehold Mortgage shall have been delivered to the City
Manager together with a written notice of the name and address of the owner
and holder thereof as provided in Section 6.1(a) above:
85-921
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W The City shall not agree to any mutual termination nor
accept any surrender of this Lease (except upon the expiration of the full
term of this Lease) nor shall the City consent to any material amendment
or modification of this Lease or waive any rights or consents it may be
entitled to pursuant to the terms hereof, without the prior written
consent of Lender.
(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 Developer's Default under
this Lease shall have occurred and be continuing, unless and until the
City Manager shall have given Lender written notice :.f such Event of
Developer's Default and Lender shall "riled 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 be done in the performance
ano observance of the covenants, conditions and agreements .hereof to
65-921
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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
performea by Developer instead of by Lender.
(iv) Should any Event of Developer's Default under this Lease
occur, Lender shall have sixty (60) days after receipt of notice from the
City Manager setting forth the nature of such Event of Developer's
Default, to remedy same or, if the default is such that possession of the
Leased Property or Improvements may be reasonably necessary to remedy the
default, Lender shall, within such sixty (60) day period acquire
Developer's leasehold estate created hereby or commence and diligently
prosecute a foreclosure action or such other proceeding as may be
necessary to enable Lender to obtain such possession, provided that (a)
Lender shall have fully cured any default in the payment of any monetary _
obligations of Developer under this Lease within such sixty (60) day or
I
onger period and snall' continue to pay currently such monetary
obligations as and when the same are due and (b) Lender shall within six
(6) months of the date that it takes possession of the Leased Property and
Improvements enter into an agreement on terms and conditions reasonably
acceptable to the City with an Acceptable Operator for the continued
operation of the Project (hereinafter called "Acceptable Operator's
Agreement"). All rights of the City and/or City Manager to terminate this
Lease as the result of the occurrence of any such Event of Developer's
Default shall be subject to and conditioned upon the City Manager having
first given Lender written notice of such Event of Developer's Default and
Lender having failed to remedy such default or acquire Developer's
6Jr-9tii
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 Developer's Default under this Lease which in
the nature thereof cannot be remedied by Lender shall be deemed to be
remedied if (a) within sixty (60) days after receiving written notice from
the City Manager setting forth the nature of such Event of Developer's
Default, Lender shall have acquired Developer's leasehold estate created
hereby or commenced foreclosure or other appropriate proceedings in the
nature thereof, (b) Lender shall diligently and continuously prosecute any
such proceedings to completion, (c) Lender shall have fully cured any
default in the payment of any monetary obligations of Developer under this
Lease which do not require possession of the Project within such sixty (60)
days period and shall thereafter continue to faithfully perform all such
monetary obligations which do not require possession of the Project, and
(d) within six (6) months after Lender shall have gained possession of the
Project, Lender shall have entered into an Acceptable Operator's Agreement.
Upon the taking of possession of the Project by Lender, Lender shall
perform all of the obligations of the Developer hereunder as and when the
same are due except that Lender shall not be bound by the provisions of
Section 5.8 hereof or any of such obligations which are not capable of
(for example, bankruptcy and/or insolvency of Developer) being performed
by Lender. 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 become
the owner of Developer's estate under the Lease and of the Improvements
6S"91.W 1
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4I�
1
must assume all of Developer's obligations hereunder including, but not
limited to, the construction obligation but excluding, however, those
obligations which are not capable of being performed by Lender as above
set forth.
(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 acquiring Developer's leasehold
estate and/or the Improvements or obtaining possession of the Project or
commencing or prosecuting foreclosure or other appropriate proceedings in
the nature thereof, the times specified in subparagraphs (iv) and (v)
above for acquiring Developer's leasehold estate and/or the Improvements
or obtaining possession of the Project or commencing or prosecuting such
foreclosure or other proceedings shall be extended for the period of such
prohibition; provided that Lender shall have fully cured any default in
the payment of any monetary obligations of Developer under this Lease and
shall continue to pay currently such monetary obligations as and when the
same fall due, and provided that Lender shall diligently attempt to remove
any such prohibition.
(vii) The City Manager shall mail to Lender a duplicate copy by
certified mail of any and all notices which the City may from time to time
give to or serve upon Developer pursuant to the provisions of this Lease;
and no notice by the City Manager to Developer hereunder shall be deemed
to have been given unless and until a copy thereof has been so mailed to
Lender.
(viii) Foreclosure of a Leasehold Mortgage or any sale thereunder,
whether by judicial proceedings or by virtue of any power of sale
65-92A
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contained in the Leasehold Mortgage, or any conveyance of the leasehold
estate created hereby and/or the Improvements from Developer to Lender by
virtue or in lieu of the foreclosure or other appropriate proceedings in
the nature thereof, shall not require the consent of the City or
constitute a breach of any provision of or a default under this Lease.
upon such foreclosure, sale or conveyance, the City shall recognize
Lender, or any other foreclosure sale purchaser or grantee under such
transfer in lieu of foreclosure, as tenant hereunder except that all
obligations of Developer herein contained shall be binding on the Lender
(except those otherwise excluded in this Article VI or such purchaser or
grantee) only from and after the date that it shall take title to the
Developer's leasehold estate and Improvements unless otherwise in this
Article VI provided; provided, that Lender or any such foreclosure sale
purchaser or grantee must enter into an Acceptable Operator's Agreement,
within six (6) months of the date of such foreclosure, sale or conveyance,
and further, provided, that in the event there are two or more Leasehold
Mortgages or foreclosure sale purchasers (whether the same or different
Leasehold Mortgages), the City shall have no duty or obligation whatsoever
to determine the relative priorities of such Leasehold Mortgages or the
rights of the different holders thereof and/or foreclosure sale
purchasers. In the event Lender subsequently assigns or transfers its
interest under this Lease and in the Improvements 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 new lease as
contemplated by subparagraph (ix) below, and in connection with any such
assignment or transfer Lender takes back a mortgage or deed of trust
encumbering such interest to secure a portion of the purchase price given
S5--92I
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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 Mortgagee. Any person or entity to whom this Lease or any such
new lease is assigned must either enter into or assume Lender's
obligations under an Acceptable Operator's Agreement.
(ix) Should this Lease terminate by reason of any default by
Developer hereunder, the City Manager shall give notice thereof to all
Lenders and the City Manager shall, upon written request by Lender to the
City Manager received within sixty (60) days after such termination,
execute and deliver a new lease of the Leased Property to Lender for the
remainder of the term of this Lease with the same covenants, conditions
and agreements (except for any which have been satisfied by or on behalf
of Developer prior to termination and except those obligations from which
Lenders are relieved in subparagraph (v) above) as are contained herein.
No such termination of this Lease shall effect a termination of this
subparagraph (ix) and the rights granted Lenders herein. The City 's
execution and delivery of such new lease shall be made without
representation or warranty of any kind or nature whatsoever, either
express or implied, including without limitation, any representation or
warranty regarding title to the Project or any Improvements or the
priority of such new lease (except 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
Improvements to Lender pursuant to such new lease shall be made without
representation or warranty of any kind or nature whatsoever, either
- 81 -
85--921
11
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 Mortgagee. Any person or entity to whom this Lease or any such
new lease is assigned must either enter into or assume Lender's
obligations under an Acceptable Operator's Agreement.
(ix) Should this Lease terminate by reason of any default by
Developer hereunder, the City Manager shall give notice thereof to all
Lenders and the City Manager shall, upon written request by Lender to the
City Manager received within sixty (60) days after such termination,
execute and deliver a new lease of the Leased Property to Lender for the
remainder of the term of this Lease with the same covenants, conditions
and agreements (except for any which have been satisfied by or on behalf
of Developer prior to termination and except those obligations from which
Lenders are relieved in subparagraph (v) above) as are contained herein.
No such termination of this Lease shall effect a termination of this
subparagraph (ix) and the rights granted Lenders herein. The City 's
execution and delivery of such new lease shall be made without
representation or warranty of any kind or nature whatsoever, either
express or implied, including without limitation, any representation or
warranty regarding title to the Project or any Improvements or the
priority of such new lease (except 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
Improvements to Lender pursuant to such new lease shall be made without
representation or warranty of any kind or nature whatsoever, either
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85--92I
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express or implied; and Lender shall take any Improvements "as -is" in
their then current condition (except as to any actions taken or
improvements made by the City during such time as the Leased Property was
not the subject of a Lease). Upon execution and delivery of such new
lease, the City shall not be responsible to take any action that may 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 agrees to cooperate with Lender in connection with the
foregoing if Lender shall bring any action to cancel and discharge this
Lease or remove Developer named herein or any other occupant 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 cured or
having commenced and diligently prosecuting 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 Lender, the City
shall only be required to deliver the new lease to the Lender who is,
among those Lenders requesting a new lease, the holder of the most junior
Leasehold Mortgage, provided that such Lender shall, not later than the
Y
execution of such new lease, either (x) pay in full the sums secured by
any or all Leasehold Mortgages which are prior in lien to the Leasehold
Mortgage held by such Lender, or (xx) agree to reinstate the liens of any
or all Leasehold Mortgages which are prior in lien to the Leasehold
Mortgage held by such Lender with the same relative priority as existed
prior to the termination of this Lease. If any Lender having the right to
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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 Lenders (if any) and
shall afford such other Lenders 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 Project. At Developer's request, the City will enter into an
agreement with any Lender granting to the Lender the rights set forth in
this Article. If such new lease is entered into pursuant hereto, the
Lender shall be entitled to offset from the previous Rentals due the City
under this Lease, the net operating profit, if any, made by the City
during the period that the City shall have operated or had possession of
the Project. No subtenant will obtain any greater rights or priority by
virtue of the Non -Disturbance provisions of Section 12.10 of the Lease if
this Lease is terminated and a new lease is entered into pursuant to this
Article VI.
(x) City and Developer shall cooperate in including in this
Lease by suitable amendment from time to time any provision which may be
requested by any proposed Lender, or may otherwise be reasonably
necessary, to implement the provisions of this Article VI; provided,
PIS-9''$
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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 Lender hereunder
shall also be afforded to a party providing financing to Developer
pursuant to a Financing Sublease.
(xii) At any time that a Lender is in possession of the Leased
Property pursuant to the terms of the Lease and at all times thereafter
during the term of this Lease or any Renewal Term, the Rental obligation
to the City shall be limited to an amount equal to thirty-five percent
(35%) of Net Income Available for Distribution, it being agreed that in
such event the calculation of Net Income Available for Distribution shall
not include any deduction for Minimum Base Rental unless same has actually
been paid to the City.
Section 6.2. No Waiver of Developer's Obligations or City's
Rights. Nothing contained in this Article VI 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
r.
non-performance thereof, or to require or provide for the subordination to the
lien of such Leasehold Mortgage of any estate, right, title or interest of the
City in or to the Project or this Lease.
ARTICLE VII
REMEDIES
Section 7.1. Events of Default - Developer. The following events
are hereby defined as "Events of Developer's Default":
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(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, and the continuance of
such failure for a period of sixty (60) days after notice thereof in writing
from the City to Developer (which notice shall specify the respects in which
the City contends that Developer has failed to perform any such covenants,
conditions and agreements), unless such default was not caused or created by
the Developer and cannot be cured within sixty (60) days and the Developer
within said sixty (60) day period shall have commenced and thereafter shah
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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 seq.) or any successor thereto; or
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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
5. if a receiver or similar type of appointment or court
appointee or nominee of any name or character is made for Developer or its
property; or
6. if Developer shall abandon the Leased Property during the
term of this Lease or any renewals or extensions thereof; or
7. if Developer shall assign this Lease or sublet any portion
of the Leased Property, except as permitted herein.
Section 7.2. Remedies for Developer's Default. If 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 the Project to the City in accordance with
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Section 11.5. Upon the termination of this Lease, as provided in this Section
7.2, all rights and interest of the Developer in and to the Leased Property
and every part thereof shall cease and terminate and the City may, in addition
to any other rights and remedies it may have, retain all sums paid to it by
the Developer under this Lease.
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 defaulti, 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 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
(subject, however, to the rights of any Lender pursuant to Article VI
hereof);
(ii) the right to a writ of mandamus, injunction or other
similar relief, available to it under Florida law against the City
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(including any or all of the members of its governing body, and its
officers, agents or representative) provided, however, that in no event
shall any member of such governing body or any of its officers, agents or
representatives be personally liable for any of the City's obligations to
Developer hereunder;
(iii) the right to maintain any and all actions at law or suits
in equity or -other proper proceedings to obtain damages resulting from
such default.
Section 7.4. 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 for development, or the
beginning and completion of construction of the Developer Improvements or City
Improvements, or progress in respect thereto, in the event of unavoidable
delay in the performance of such obligations due to strikes, lockouts, acts of
God, inability to obtain labor or materials due to governmental restrictions,
enemy action, civil commotion, fire, unavoidable casualty or other similar
causes beyond tie reasonable control of a party (not including such party's
insolvency of financial condition), it being the purpose and intent of this
paragraph that in the event of the occurrence of any such unavoidable delays
the time or times for the performance of the covenants, provisions and
agreements of this Lease, including but not limited to the obligations of the
City and the City Manager with respect to the preparation of the Leased
Property for development ano completion of the City Improvements or of
Developer with respect to construction of Developer Improvements, shall be
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extended for the period of unavoidable delay; provided, however, that the
party seeking the benefit of the provisions of this Section shall, within
thirty (30) days after such party shall have become aware of such unavoidable
delay, give notice to the other party thereof in writing of the cause or
causes thereof and the time delayed. The parties hereto agree if any event
shown on Exhibit G shall not occur at the time required for same as a result
an event of Unavoidable Delay, the Rent Commencement Date shall be postponed
to a date extended by the period of such delay or the Opening Date, whichever
is earlier. Notwithstanding the foregoing, Developer agrees to use reasonable
and diligent efforts to open the Bayside Specialty Center for business with
the general public by October 31, 1986.
Section 7.5. Obligations, 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
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of the party making the waiver with respect to the particular obligations of
the other party or condition to its own obligation beyond those expressly
waived and to the extent thereof, or a waiver in any respect in regard to any
other rights of the party making the waiver or in regard to any obligation of
the other party.
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MEMORANDUM OF LEASE
RETAIL PARCEL LEASE]
THIS SHORT -FORM LEASE AGREEMENT (the "Lease") is made and
entered into this day of September, 1985, by and between THE
CITY OF MIA.MI, a municipal corporation of the State of Florida
(the "Lessor"), and BAYSIDE CENTER LIMITED PARTNERSHIP, a
Maryland limited partnership (`he "Lessee").
W I T N E S S E T H:
That for and in consideration of the covenants herein con-
tained on the part of the parties hereto observed and performed,
and particularly the covenants on the part of the Lessee to pay
the rents herein reserved and specified, -he parties hereto do
hereby enter into this Lease, and the Lessor does hereby rent,
let, lease and demise to the Lessee all those certain tracts or
parcels of land lying and being in the County of Dade, State of
Florida, more particularly described as follows (the "Land"):
See Schedule "A" attached hereto
and by this reference made a part hereof.
together with the buildings and all other improvements presently
located on the Land (the "Demised Premises");
To have and to hold the Demised Premises during the initial
term and the extension periods hereinafter described; -
Together with all and singular of the appurtenances, rights,
interests, easements, and privileges in anywise appertaining
thereto;
TERM AND DURATION
A. This Lease shall be for a term of forty-five (45)
years, commencing on the first day of the month next following
the Possession Date (as said term is defined in the full Amended
and Restated Lease Agreement between Lessor and Lessee described
below).
B. Lessee is hereby given the option to extend the term of
this Lease for up to two (2) additional terms (each called a
"Renewal Term") of fifteen (15) years each by giving written
notification to Lessor not less than six (6) months before the
date on which such Renewal Term is to commence.
THIS INSTRUMENT IS A SHORT -FORM OF THE FULL AMENDED AND RE-
STATED LEASE AGREEMENT DATED THE DAY OF SEPTEMBER, 1985
BETWEEN LESSOR AND LESSEE, WHICH IS HEREBY INCORPORATED BY
REFERENCE AS IF FULLY SET FORTH HEREIN. IN THE EVENT OF ANY
CONFLICT BETWEEN SAID FULL LEASE AND THE BALANCE OF. THIS
MEMORANDUM, SAID FULL LEASE SHALL GOVERN. REFERENCE SHOULD BE
MADE TO THE FULL LEASE WHICH FURTHER DEFINES THE RIGHTS AND OBLI-
GATIONS OF THE PARTIES.
AS MORE FULLY SET FORTH IN THE LEASE, LESSOR HAS GRANTED TO
LESSEE CERTAIN EASEMENTS OVER THE PROPERTY DESCRIBED IN SCHEDULE
"B" ATTACHED HERETO AND MADE A PART HEREOF.
AS MORE FULLY SET FORTH IN THE LEASE, PRIOR TO THE EXPIRA-
TION OR TERMINATION OF THE LEASE, TITLE TO THE BUILDINGS AND
This instrument prepared by Steven E. Goldman, Esq. of
0Vi,CES GREENBERG TRAURIG. ASKEW HOFFMAN LIPOFF. ROSEN a OUENTE P A 85-921'
ER Cr.E._ CCNCC..RS 14C, BRICIELL AVENUE MIAMI FLORIDA 33131 . TELEPHONE (305) 579.0500
11
IMPROVEMENTS CONSTRUCTED UPON SHE LAND BY LESSEE SHALL NOT VEST
IN LESSOR BY REASON OF ITS OWNERSHIP OF FEE SIMPLE TITLE TO rHE
LAND, BUT TITLE TO SAID BUILDINGS AND IMPROVEMENTS SHALL REMAIN
IN LESSEE. IN ADDITION, IF THE LEASE SHALL TERMINATE PRIOR TO
THE EXPIRATION OF THE TERM THEREOF, AND IF, AT THAT TIME, ANY
LEASEHOLD MORTGAGEE (AS DEFINED IN THE LEASE), SHALL EXERCISE IT5
OPTION TO OBTAIN A NEW LEASE FOR THE REMAINDER OF THE TERM OF
LEASE, TITLE TO SAID BUILDINGS AND IMPROVEMENTS SHALL AUTO-
MATICALLY PASS TO, VEST IN AND BELONG TO SUCH LEASEHOLD MORTGAGEE
OR ANY DESIGNEE OR NOMINEE OF SUCH LEASEHOLD MORTGAGEE PERMITTED
UNDER THE LEASE, UNTIL THE EXPIRATION OR SOONER DETERMINATION OF
THE TERM OF SUCH NEW LEASE.
Ail persons
are
put on
notice that
no person furnishing
labor, services
or
materials
in connection with repairs cr
improvements to
the
property
demised by
the Lease shall_ be
entitied to any
lien
or ,tether
claim against
Lesscr's interest in
the pr-)r)ert• r,'emised
h. the Leaso -,nit�ss ;-!ch
person has a direct
contract wi-h Lessor.
IN WITNESS WHEREOF, the parties hereto have executed this
instrument the day and year first above written.
Signed, sealed and delivered
in the presence of:
LESSOR:
THE CITY OF MIAMI, a municipal
corporation of the State of
Florida
By:
SERGIO PEREIRA, City Manager
[SEAL] r
LESSEE:
BAYSIDE CENTER LIMITED PARTNER-
SHIP, a Maryland limited
partnership
By: ROUSE-MIAMI, INC., a
Maryland corporation,
General Partner
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95-9ti1
,AW OFF,CES GREENBERG. rRAURIG ASKEW. I CFFMAN LIPOFF ROSEN S OUENTEL, P A
BRICKE'_.. CCNCO. QS 1401 BRICKELL AVENUE MIAMI FLORIDA 33131 . TELEP.+ONE (305) 579-0500 _
T
M.
0
STATE OF FLORIDA )
) SS.
COUNTY OF DADE )
The foregoing instrument was acKnowledged before me this
day of September, 1985 by SERGIO PEREIRA, as City Manager of THE
CITY OF MIAMI, a municipal corporation of the State if Florida.
My Commission expires:
NOTAR7 PUBLIC
[NOTARIAL SEAL)
STATE OF FLORIDA )
) SS:
COUNTY OF DADE )
The foregoing instrument was acknowledged before me this
day of September, 1985, by
, as of ROUSE-MIA.14I, INC., a
Maryland corporation, on behalf of said corporation, as General
Partner on behalf of BAYSIDE CENTER LIMITED PARTNERSHIP, a
Maryland limited partnership.
My Commission expires:
NOTARY PUBLIC
(NOTARIAL SEAL)
95-921
LAW OFFICES GREENBERG. TRAURiG. ASKEW HOFFMAN. LtPOFF. ROSEN d UUENTEL. P A
BRiCKE_,. CGNCCURS, 4401 BRICKELL AVENUE, MIAMI, FLORIDA 33131 . TELEPHONE (305) 579.0500
57
TO Honorable Mayor and
Members of the City
CommisSion
R, k, Sergio Pereira
City Manager
September 5, 1985 BY.460.01
Amended Bayside Retail
Parcel Lease
For City Commission Meeting
September 12, 1985
Resolution, Agreement
It is recommended that the City Commission
adopt the attached Resolution authorizing
the City Managerto execute a Lease
ggreement -- in substantially the form
attached between the City and Bayside
Center Limited Partnership for the Bayside
Retail Parcel as amended and restated
incorporating requirements for construction
financing and incorporating all documents,
and Turther to execute a Memorandum of
Lease in substantially the form attached,
as required for closing.
On January 14, 1985, the City and Bayside Center Limited
Partnership entered into a Ground Lease Agreement whereby Bayside
will construct, operate and maintain a Specialty Center on a
portion of Bayfront Park.
In order to acquire construction financing, Bayside Center Limited
Partnership has requested the Agreement be amended and restated as
set forth therein.
It is recommended that the attached Resolution be adopted
authorizing the City Manager to execute, in substantially the form
attached, a Lease Agreement between the City and Bayside Center
Limited Partnership for the Bayside Retail Parcel as amended and
restated, and further to execute a Memorandum of Lease Agreement as
required for closing.
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