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HomeMy WebLinkAboutR-84-1483J-84-1270 RESOLUTION NO. 84-14 3 A RESOLUTION REAFFIRMING THE APPROVAL OF THE PARKING GARAGE g MANAGEMENT AGREEMENT BETWEEN THE DEPARTMENT OF OFF STREET PARKING AND BAYSIDE CENTER LIMITED PARTNERSHIP, THE PROPOSED MINORITY PARTNERS OF THE BAYSIDE CENTER LIMITED PARTNERSHIP, THE SUPPLEMENTAL AGREEMENT AND THE AMENDMENT TO THE EXISTING LICENSE AGREEMENT REGARDING THE MIAMI GRAND PRIX, IN SUBSTANTIALLY THE FORM ATTACHED, AND AUTHORIZING THEIR EXECUTION BY THE CITY MANAGER; AND APPROVING AND AUTHORIZING THE EXECUTION OF THE FOLLOWING AGREEMENTS, IN SUBSTANTIALLY THE FORM ATTACHED: (A) THE LEASE AGREEMENT BETWEEN THE CITY AND BAYSIDE CENTER LIMITED PARTNERSHIP ON BEHALF OF ROUSE-MIAMI, INC., AN AFFILIATE OF THE ROUSE COMPANY OF COLUMBIA, MARYLAND (HEREINAFTER REFERRED TO AS "BAYSIDE CENTER LIMITED PARTNERSHIP'% FOR THE PLANNING AND DESIGN, CONSTRUCTION, LEASING AND MANAGEMENT OF THE BAYSIDE SPECIALTY CENTER TO BE LOCATED ON CITY -OWNED PROPERTY; (B) THE LEASE AGREEMENT BETWEEN THE CITY AND BAYSIDE CENTER LIMITED PARTNERSHIP FOR THE PLANNING AND DESIGN, CONSTRUCTION, LEASING AND MANAGEMENT OF A PARKING GARAGE AND SURFACE PARKING FACILITIES IN CONNECTION WITH THE BAYSIDE SPECIALTY CENTER TO BE LOCATED ON CITY -OWNED *' PROPERTY; (C) THE AGREEMENT BETWEEN THE CITY AND THE DEPARTMENT OF OFF-STREET PARKING TO REIMBURSE THE .`} DEPARTMENT IN THE AMOUNT OF $809000 FOR LOSS OF REVENUES CAUSED BY THE ELIMINATION OF PARKING METERS TO CONSTRUCT THE PARKING GARAGE AND SURFACE PARKING FACILITIES IN CONNECTION WITH THE BAYSIDE SPECIALTY CENTER; AND (D) THE MINORITY PARTICIPATION AGREEMENT BETWEEN THE CITY AND BAYSIDE CENTER LIMITED PARTNERSHIP, ALL OF WHICH INCORPORATE CHANGES PREVIOUSLY MADE BY THE COMMISSION. WHEREAS, on December 7, 1984, the Commission passed Motions Numbered 84-1341.11 84-1341.21 84-1341.31 84-1341.40 84-1341.5, 84-1341.6, and 84-1341.7 approving the following agreements and items, and authorizing the <` execution of the agreements by the City Manager: the Parking Garage Management -mow Agreement between the Department of Off Street Parking and Bayside Center 5; Limited Partnership,the proposed Minority Partners of the Bayside Center Limited Partnership, the Supplemental Agreement and the Amendment to the existing License Agreement regarding the Miami Grand Prix, all in substantial) the form attached and Y , approving and authorizing the execution by the City Manager of the following agreements in substantially the form ¢4F;i a attached, subject to certain amendments thereto: (A) the Lease Agreement n� between the City and Bayside Center Limited Partnership on behalf of t Rouse -Miami, Inc., an affiliate of the Rouse Company of Columbia, Maryland (hereinafter referred to as "Bayside Center Limited Partnership"), for the 21421 K ter'; planning and design, construction, leasing and management of the Bayside CITY COMMISSION MEETING OF DEC 20 1984 luil no. 541 �PEMARKS. _ - Specialty Center to be located on City -owned property, (8) the Lease Agreement between the City and Bayside Center Limited Partnership for the planning and design, construction, leasing and management of a Parking Garage and Surface i Parking facilities in connection with the Bayside Specialty Center to be located on City -owned property, (C) the Agreement between the City and the Department of Off -Street Parking to reimburse the Department in the amount of $80,000 for loss of revenues caused by the elimination of parking meters to construct the Parking Garage and Surface Parking facilities in connection with the Bayside Specialty Center which incorporate changes previously made by the Commission, and (0) the Minority Participation Agreement between the City and Bayside Center Limited Partnership. WHEREAS, on December 13, 1984, the Commission accepted certain amendments to the agreements relating to the development of the Bayside Specialty Center and Parking Garage and Surface Parking facilities; and WHEREAS, the City Commission instructed the City administration to confirm with Miami MotorSports, Inc. that Miami MotorSports, Inc. is not permitted to exercise control over the FEC Tract to the extent that it would preclude future construction, development, or a use thereon which would be inconsistent with the staging of the Grand Prix; and WHEREAS, the City and Miami MotorSports, Inc. have provided in the Amendment to the Agreement between the City and Miami MotorSports, Inc., that the City Manager has the authority to require Miami MotorSports, Inc. to stage its race off of the FEC Tract when the City commences construction, development, or a use of the FEC Tract which is inconsistent with the staging of the race; and WHEREAS, the City Commission required certain changes to be made in the Minority Participation Agreement between the City and Bayside Center Limited Partnership. NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI: Section 1. The approval of the following agreements and items is hereby reaffirmed and the execution of the agreements by the City Manager is hereby authorized: the Parking Garage Management Agreement between the Department of Off Street Parking and Bayside Center Limited Partnership, the proposed Minority Partners of the Bayside Center Limited Partnership, the -2- 84-ml4f Supplemental Agreement and the Amendment to the existing License Agreement regarding the Miami Grand Prix, in substantially the form attached. Section 2. The following agreements are hereby approved in substantially the form attached and the City Manager is hereby authorized to execute the same: (A) the Lease Agreement between the City and Bayside Center Limited Partnership on behalf of Rouse -Miami, Inc., an affiliate of the Rouse Company of Columbia, Maryland (hereinafter referred to as "Bayside Center Limited Partnership"), for the planning and design, construction, leasing and management of the Bayside Specialty Center to be located on City -owned :property, (B) the Lease Agreement between the City and Bayside Center Limited i Pa,:;:nership for the planning and design, construction, leasing and management of a Parking Garage and Surface Parking facilities in connection with the Bayside Specialty Center to be located on City -owned property, (C) the Agreement between the City and the Department of Off -Street Parking to reimburse the Department in the amount of $80,000 for loss of revenues caused by the elimination of parking meters to construct the Parking Garage and Surface Parking facilities in connection with the Bayside Specialty Center, and (0) the Minority Participation Agreement between the City and Bayside Center Limited Partnership, all of which incorporate changes previously made by the Commission. PASSED AND ADOPTED this 20thday of December , 1984. EST: G. ONGI , City Clerk PREPARED AND APPROVED BY: "41. AU&M 14ag, G. MIRIAM MAER Assistant City Attorney APPROVED City Attorney 1720F/457A Maurice A. Ferre MAURICE A. FERRE, Mayor - 3- CITY OF MIAMI, FLORIDA INTER -OFFICE MEMORANDUM 7O R?ILph. ngie Of- IF January 7, 1984 FILE Ck IJ "'F`r Bayside Specialty Center FROM. PrF ERENCES City Commission Actions L. ugh ty City Attorney ENCL05URES Attached find the original approved resolution adopted December 20, 1984, in connection with the "Bayside Specialty Center". All prior actions of the City Commission are to be con- sidered as mere motions reflecting the will of the Commission on any given date during the Commission's lengthy deliberations on this matter. If you have characterized such prior Commission actions as resolutions and assigned numbers to them, please change your records to reflect those actions as motions, using the numbers for file purposes, if you so desire. LAD:RFC/bjr Attachment 84-1483 / � � • i I � ' � ►� .I � r ♦l � r r � � � �, i r r ., PARKING GARAGE MANAGEMENT AGREEMENT between 6AYSIDE CENTER LIMITED PARTNERSHIP and DEPARTMENT OF OFF-STREET PARKING OF THE CITY OF MIAMI December ____r 1984 b . op '� PE R s g4-1483 r TABLE OF CONTENTS Page ARTICLE I: MANAGEMENT AND OPERATION OF PARKING GARAGE 2 1.01 DOSP to Manage, Operate and Maintain 2 1.02 Parking Rates 2 1.03 Employees 4 1.04 Injuries 5 1.05 Duties and Obligations of DOSP 5 1.06 Commodities and Equipment 6 1.07 Gross Revenues and Reports 6 1.08 Expenses 10 1.09 Management Fees and Operating Account 11 1.10 Insurance 13 1.11 Non -Discrimination 15 1.12 Miami Grand Prix 16 1.13 Conditions Precedent 16 ARTICLE II. REMEDIES 16 2.01 Events of Default - Developer 16 2.02 Remedies for Developer's Default 16 2.03 Events of Default - DOSP 17 2.04 Unavoidable Delay 18 2.05 Obligations, Rights and Remedies Cumulative 19 ARTICLE III. INDEMNIFICATION 19 ARTICLE IV. INSURANCE PROCEEDS 20 ARTICLE V. CONDEMNATION, DESTRUCTION AND ARBITRATION 20 5.01 Termination as a Result of Condemnation or Destruction 20 5.02 Arbitration 21 ARTICLE VI. MAINTENANCE STANDARDS 23 6.01 Waste 23 6.02 Maintenance and Operation of Parking Garage 23 (i) 84-1483 TABLE OF CONTENTS Rage ARTICLE VII. MISCELLANEOUS PROVISIONS 23 7.01 No Partnership or Joint Venture 23 24 7.02 7.03 Florida and Local Laws Prevail Conflicts Of rNot �IndividuallyCity and sLiable Representatives 25 25 7.04 7.05 Notice Titles of Articles and Sections 26 26 7.06 Counterparts 7.07 Successors and Assigns and Rights 26 Upon Termination 26 7.08 Use of Bond Proceeds 28 7.09 Amendments 151OF/451A 84-1483 TABLE OF CONTENTS ARTICLE VII. MISCELLANEOUS PROVISIONS 23 7.01 No Partnership or Joint Venture 23 24 7.02 7.03 Florida and Local Laws Prevail Conflicts of Interest; City and DOSP Representatives Not Individually Liable 25 25 7.04 7.05 Notice Titles of Articles and Sections 26 26 7.06 Counterparts 7.07 Successors and Assigns and Rights 26 Upon Termination 26 7.08 Use of Bond Proceeds 28 7.09 Amendments 151OF/451A r PARKING GARAGE MANAGEMENT AGREEMENT y� THIS AGREEMENT, made this day of December, 1984 between BAYSIDE CENTER LIMITED PARTNERSHIP, a Maryland Limited Partnership (hereinafter referred to as "Developer") and DEPARTMENT OF OFF-STREET PARKING s1rRp U 0 OF THE CITY OF MIAMI, (hereinafter referred to as "DOSP"). }}4 G =;. WITNESSETH: WHEREAS, the Developer and the City of Miami (hereinafter referred to y as "City") have entered into a lease agreement (hereinafter referred to as rr; "Ground Lease") with respect to a permanent multi -level parking garage con- taining not less than twelve hundred (1,200) parking spaces (hereinafter referred to as "Parking Garage") and a surface parking lot (hereinafter referred to as "Area B Surface Lot") on certain real property located in the vicinity of the Parking Garage; WHEREAS the Ground Lease requires the Developer to own, operate and .x maintain the Parking Garage and the Area B Surface Lot and to retain an 3� Acceptable Operator (as defined in the Ground Lease) to operate, maintain and manage the Parking Garage and the Area B Surface Lot (hereinafter collectively ,,....;, referred to as the "Parking Facilities"); WHEREAS DOSP is an Acceptable Operator; rsa , WHEREAS the Developer, in fulfilling its contractual obligations h-` under the Ground Lease, desires to retain DOSP to operate, manage and maintain the Parking Facilities; WHEREAS, Developer and DOSP are entering into this Agreement to more particularly specify and define their respective rights, liabilities and obli- gations with respect to the operation, management and maintenance of the Parking Facilities. 84-1483 A NOW, TI-EREFORE, in consideration of Ten and No/100ths Dollars ($10.00) and other good and valuable consideration, the parties hereto covenant and agree as follows: ARTICLE I MANAGEMENT AND OPERATION � k 1.01 DOSP to Manage, Operate and Maintain* Developer and DOSP agree Sdr gthat upon completion of construction of the Parking Facilities, DOSP shall for rf and on behalf of Developer, manage, operate, maintain, direct and supervise 3sa the use of the Parking Facilities for a period of fifty-eight (58) months in one month prior to the Completion Date (as defined in the Ground commencing n Lease) . DOSP shall have the right, at any time it deems necessary but ,< w roved Bud et (hereinafter defined), pursuant to make non -material, rsuant to an approved 9 Garage or the Area non-structural alterations or changes to either the Parking 9 B Surface Lot provided that Developer shall have been given the right to comment on such proposed alterations or changes at least thirty (30) days before sa me are implemented. DOSP shall not make any material or structural w Garage or the Area B Surface Lot without the changes to either the Parking 9 �3 prior written consent of Developer, which shall not be unreasonably withheld. 1.02 Parking Rates. DOSP shall charge all users of the Parking { ; Facilities the fees or rates for such use established by Developer and �r M ... by the City pursuant to the Ground Lease ( such f ees and reasonably approved 5 *F rates hereinafter referred to as "Parking Rates"). DOSP shall submit suggested Parking Rates for the Parking Facilitie s to the Developer Q. simultaneously with the submission of the Budget, which Parking Rates shall be NN at least sufficient to cover debt service and Operating Expenses (hereinafter defined) and which Parking Rates shall be comparable to the fees and rates or u the use of similar facilities in downtown Miami. DOSP may, from time to time, - 2 - 84-1483 suggest revised parking Rates to Developer. No free parking shall be permitted to any party at the Parking Facilities without the City and Developer's prior written approval. Developer shall submit any proposed changes in Parking Rates to DOSP for comment at least thirty (30) days prior to the proposed effective date of same. If DOSP shall comment on same, the decision of Developer as to Parking Rates shall be binding and conclusive on DOSP. DOSP shall operate the Parking Facilities as public facilities and shall not subject more than five (5%) percent of the parking spaces located in either the Parking Garage or the Area B Surface Lot to monthly parking use; provided, however, that if W six (6) months after the Opening Date (as defined in the Ground Lease), DOSP shall certify to Developer that in the sixty (60) day period prior to such certification more than five (5%) percent of the parking spaces in either the Parking Garage, the Area B Surface Lot or both remained unused during weekday peak business hours, and (ii) bond counsel shall opine that the number of monthly parking spaces may be increased to the amount and manner proposed by DOSP without violating the Ground Lease or the Loan Agreement entered into between the City and Developer with respect to the financing of the Parking Garage (the "Loan Agreement"), then DOSP shall be entitled to increase the percentage of permitted monthly parking at the Parking Garage, the Area B Surface Lot or both (depending upon which portion of the Parking Facility shall have had said vacancy) by the general public by an amount equal to the difference between the actual vacancy factor during week day peak business hours and five (5%) percent, but not to exceed the number of monthly parking spaces approved by bond counsel. In no event, may more than twenty-five (23%) percent of the parking spaces located in the Parking Facilities be subjected to monthly parking use. As used herein, the term "monthly parking" shall mean prepaid parking for a term of no longer than -3- 84-1483 one calendar month, available to the general public on a first come, first served basis. 1.03 Employees. DOSP shall employ all on -site personnel required to +. fulfill its responsibilities hereunder and no officer, agent or employee of All DOSP shall be deemed an employee of Developer for any reason whatsoever. t a employees of DOSP located at the Parking Facilities shall be paid within t ranges established in DOSP's yearly budget approved by the City. All =r prospective employees of DOSP hired to perform services under this Agreement, i. including the Facility Manager (hereinafter defined), shall be examined by a h examiner to determine the accuracy of their employment ,.., licensed polygraph ' application and integrity and shall be periodically, as needed, re-examined by the polygraph expert to determine honesty in the receipt and handling of cash, �s in the payment of expenses and in the preparation of required reports. The S costs of such examinations shall constitute All an Operating Expense. properly uniformed so as to present a neat, clean employees of DOSP shall be and professional appearance at all times. All hourly employees of DOSP shall sF, punch in and out on a recording type time clock to be installed at the Parking Garage. DOSP shall provide a facility manager (hereinbefore and hereinafter �r ii.t i referred to as the "Facility Manager"), who shall be the full-time, on -site management representative of DOSP, responsible for the competent performance and fulfillment of the responsibilities of DOSP under this Agreement. DOSP ¢{ shall, at Developer's expense, provide a Blanket Position Fidelity Bond in an S Y� §d f .. ` amount of no less than $109000 for each employee and a bond in the amount of not less than $1009000 for employees responsible for handling daily Gross h Revenues (hereinafter defined). Developer shall be named as cobligee under o- such bonds and shall have the right to approve the form and issuer of same. .. The amount of such bonds shall be subject to yearly increases based on changes in the CPI Index (as defined in the Ground Lease). - 4 - 84-1483 1.04 injuries. Each party shall immediately notify the other of any injury to any person or loss or damage to any property in the Parking Facilities and shall promptly furnish the other party with copies of reports in connection therewith, however, failure of Developer to so notify DOSP or to provide DOSP with reports shall not be an Event of Developer's Default under this Agreement unless DOSP is able to establish that it has suffered direct economic loss as a result of Developer's failure to so notify and/or report to DOSP and failure of DOSP to notify Developer or to provide Developer with reports shall not be an Event of DOSP's Default under this Agreement unless Developer is able to establish that it has suffered direct economic loss as a result of DOSP's failure to so notify and/or report to Developer. 1.05 Duties and Obligations of DOSP. At the cost of Developer, DOSP shall perform all of the following: (A) DOSP shall be responsible for the proper maintenance, repair and upkeep of the Parking Facilities and the interior and exterior of the Parking Garage including (without limitation) the maintenance, repair and upkeep of doors and windows, stairwells, elevators, electronic surveillance system, the toll booths, signs and graphics, the striping and restriping of the Parking Facilities, the maintenance and upkeep of landscaping, grassed areas, and other common areas to at least the standard required by the Developer under the Ground Lease. Routine preventive maintenance, repair and replacement shall be performed by DOSP at hours of low traffic flow, when possible. (B) DOSP shall be responsible for keeping the Parking Facilities including (without limitation) the parking areas, the entrance and exit areas, exit toll booths, restrooms and the office of DOSP in the Parking Garage in a neat and clean condition at all times. -5- 84-1483 t (C) DOSP shall operate the Parking Facilities as public parking facilities open for business with the general public on a first come, first serve basis (except with respect to the permitted monthly parking described in Section 1.02 hereof) one hour before and one hour after the hours that the Bayside Specialty Center (as the term is defined in the Ground Lease) is open for business with the general public or for such longer period as DOSP may determine to be necessary to meet the demand for general public use, consistent with prudent business practice. (D) DOSP shall provide security protection in accordance with the Ground Lease. 1.06 Commodities and Equipment. (A) Developer shall pay for and DOSP shall acquire all commodities and equipment authorized as part of the Budget, with title to same being vested in Developer upon delivery or installation at the Parking Facilities. If by Developer, DOSP shall, at Developer's expense, provide requested y necessary equipment, trained personnel and vehicles for battery assistance, a tire changing and distress services for vehicles parked at the Parking Facilities. DOSP may charge, in addition to the Parking Rates, reasonable iy �} fees, approved in writing by Developer in advance for towing of vehicles on or the Parking Facilities for mechanical purposes, and such fees shall be �y r off included in Gross Revenues. All authorized charges for services shall be y, prominently displayed. The cost of maintaining this service will be included in the Budget and the revenues shall be included in Gross Revenues. �. 1.07 Gross Revenues and Reports. As used in this Agreement, the term - _ ., -- . - "Gross Revenues" shall mean all moneys, paid or payable to DOSP for parking x related transactions made and for services rendered by DOSP in the operation r_ of the Parking Facilities regardless of when or where the services are _ 6 _ 84-1483 FX. rendered, whether on a cash or preauthorized credit basis, however, any sales F taxes imposed by law directly paid by DOSP to a taxing authority, and any F� discounts and allowances as provided by procedures proposed by DOSP an approved by Developer, shall be excluded therefrom. Moneys payable shall ,. include, but shall not be limited to, any and all cashier shortages, overages, and undercharges. Dishonored checks and uncollectible credit card charges shall not be included in Gross Revenues, provided that such check and credit card transactions were processed utilizing sound business procedures. As soon as practical, but no later than the next banking day following receipt of any Gross Revenues hereunder, DOSP shall promptly deposit the Gross Revenues in a depository bank and account designated by the Developer. DOSP shall on weekends, holidays or nights deposit Gross Revenues in a night ` deposit vault designated by Developer. DOSP shall obtain insurance in a sufficient amount to cover loss of deposit until such time as the depository bank certifies receipt of same. The cost of this insurance shall constitute an Operating Expense. All procedures hereunder shall be subject to revisions based upon changes in the Charter or Code of the City of Miami. Gross not be security for any debts of DOSP, but are the property of Revenues shall Developer and are to be held in trust for Developer. DOSP shall submit reports to Developer in such form as mutually Such reports shall include, but not be limited to, the following: agreeable. (1) weekly activity and Gross Revenue summaries, to be reconciled to daily reports utilized by DOSP. and (2) Moncertifications, ertifications, to be reconciled Revenue and Gross to daily andeSweekly cert � reports. (3) OOSP shall within sixty (60) days of the end of Developer's fiscal year (January 1 to December 31) obtain an annual auditing on made standards and accordance management with lettereprepared by ted an auditing - 7 - 84-1483 C (4) (5) independent certified public accountant, licensed in the State of Florida and acceptable to Developer as to Gross Revenues, Operating Expenses and Management Fees arising from operations under this Agreement, prepared in conformance with the American Institute of Certified Public for "Speial R. The Accountantsrequirements uirem of suchreportsbe included as Opera�tingsExpenses.cost DOSP shall submit to or on behalf of Developer such other reports as are necessary to satisfy the reporting, accounting and auditing obligations of Developer under the Ground Lease and under the Loan Agreement. if Items 4are to be signed certified bathe truer and erg compl tie byonly the prepared by DOSP, s Director of DOSP. If DOSP shall fail to deliver to Developer or the City the reports required pursuant to subsection 1.07(3) and (4) hereof, or Developer shall give written notice of its desire to audit the annual report, or if the City pursuant to its rights under the Ground Lease shall desire to audit the reports submitted to the City by DOSP on behalf of the Developer, Developer under this Agreement or the City pursuant to its rights under the Ground Lease shall each have the individual right to either conduct an audit or to employ an independent certified public accountant to examine such books and records as may be necessary to certify the accuracy of the annual report. In the event Developer audits the reports at its own initiative or if the City audits the reports or books and records pursuant to its rights under the Ground Lease and the audits demonstrate a discrepancy of more than three percent (N), (in accordance with generally accepted accounting principles, consistently applied) the occurence of such discrepancy shall be an Event of DOSP's Default under this Agreement and the cost of such audit shall be offset against the Management Fee. The external auditing firms of DOSP and Developer and of the City pursuant to the Ground Lease shall be permitted to audit, examine, review and 7h � 1 -8- f 84--1483 copy all records relating to operations under this Agreement, during normal working hours at the administrative offices of DOSP, 190 N.E. Third Street, Miami, Florida, or at such place in Miami, Florida as DOSP may designate pursuant to the terms hereof, during the term of this Agreement and within two (2) years after the date of the termination of this Agreement or such longer term as may be required under the Ground Lease. DOSP shall maintain, during the term of this Agreement, all books of account and records of Gross Revenues and expenditures, in conformance with ntin principles, consistently applied and the generally accepted accou g requirements of the Ground Lease and state law. " - All source records of Gross Revenues, which shall include, but not be limited to: parking tickets, cash register tapes, shift reports, master reports, and the like, shall be kept at all times within reports, daily revenue Dade County. These records shall be maintained by DOSP for a period of, and r r least two (2) years following the close of the fiscal year or such longer at period as may be required under the Ground Lease. by Developer, available at DOSP's If DOSP shall make requested Administrative offices upon five (5) days written notice f rom Developer any original documents and records pertaining to the operation of the Parking � Facilities not required specifically by the terms of this Agreement. r 3 �FR Annually, on a date to be mutually agreed to by DOSP and Developer, S��k �DOSP shall submit to Developer an annual budget (hereinbefore and hereinafter %.� referred to as "Budget"), on a form(s) mutually agreeable, listing all antici- _ gated operating costs, including types, quantities and estimated costs required during the subsequent fiscal year, anticipated Gross Revenues, anticipated capital operating expenses, the costs of bonds and insurance, and �. setting forth any expense for deductible loss sustained in the previous year. - 9 - 84-1483 1 Developer shall review the Budget and have the right to approve all or t, portions of the categories of expenses or individual items contained in the Budget. If DOSP and Developer are unable to agree on a Budget, the matter will be submitted to Arbitration pursuant to the terms hereof and the B get decided upon by the Arbitrator shall be binding and conclusive provided, ;,. -- however, that in no event may Developer be bound to or required to arbitrate any Budget that reveals that estimated Operating Expenses, debt service and t other expense items will be greater than anticipated Gross Revenues. The r k: Parking Facilities shall be operated on the basis of the then existing Budget pending resolution of Arbitration. All reports, expense invoices required by this Agreement shall be submitted in writing to the address of Developer set forth in Section 7.05 A 4 hereof. F~4 ? 1.08 Expenses. Developer shall pay (i) for all items set forth in the Budget, and (ii) for the cost of all non -budgeted reasonable and prudent expenses of operation, maintenance and repair of the Parking Facilities which r. non -budgeted items Developer has approved in writing prior to the costs being incurred. To the extent provided for in the Budget, expenses shall include N t y duplication) but not be limited to: all items set forth in Section (without up 1.05 hereof plus salary and wages, fringe benefits including Social Security, insurance, retirement costs, etc., including overtime, vacation, sick � group time, accrued vacation and sick time earnings of DOSP's officers and employees working at the Parking Facilities, including a reasonable allocation of such items as they relate to executive employees of DOSP considering among other yy` things, the proportion that the number of spaces in the Parking Facilities bear to the aggregate number of spaces in the entire City parkin system (not - to exceed seven (7%) percent), all utility costs including but not limited to - 10 - 84--1483 electricity, water and gas, if any, all Public Charges (as the term is defined in the Ground Lease) communications costs, all contractual maintenance costs including elevators, air conditioners, garage equipment, and property and landscaped areas, security guards, parking consultant services, material and „F..,.: supply costs, insurance including liability, worker's compensation and o ers, g{ repair and replacement costs including equipment and others, all computer ter' operations costs allocable to the Parking Facilities, uniforms, signs, capital � costs, damages, legal fees and interest directly related to the Parking $k1 Facilities involving claims of third parties unless caused by the gross ti negligence or wilful misconduct of DOSP, auditing costs, and losses of �j equipment from theft (hereinbefore and hereinafter collectively referred to as aT# ' nY "Operating Expenses"). MM 1` 1.09 Manaclement Fees and operations and Maintenance Account. DO SP shall during the term of this Agreement be entitled to receive an annual management fee in the amount equal to the greater of three and one half (3 t� 1/2A6) percent of Gross Revenues or Seventy -Five Thousand Dollars of $(759000) (hereinafter referred to as the "Management Fee") payable to DOSP monthly commencing on the first day of the second month prior to the Completion Date. On the first day of the third month prior to the Completion Date, 4 of DOSP shall submit to Developer an invoice equal to three (3) months estimated w}r� n. Operating Expenses plus Management Fees with respect to the operation and maintenance of the Parking Facilities. Developer shall within ten (10) days thereafter pay such amount to DOSP. DOSP shall deposit such amount in an he "Operations and Maintenance Account") operations and maintenance account (t in DOSP's depositary bank in an account to be known as "DOSP Trust Account for «3 ted Partnership". DOSP shall thereafter pay all Benefit of Bayside Center Limi Operating Expenses and Management Fees from the proceeds of the Operations and - 11 - 84--1483 k count. On a monthly basis, DOSP shall submit to Developer an Maintenance Ac „ invoice) for all Operating voice (hereinafter referred to as the Monthly " in DOSP in the operation Expenses incurred by DOSP and Management Fees earned by of the Parking Facilities for the previous month. The Monthly invoice shall be certified as true and correct by the Director of DOSP. Developer shall pay the amount set in the Monthly Invoice to DOSP within ten (10) days of its receipt and DOSP shall deposit same in the Operations and Maintenance Account. be appropriate in Developer has the right to use such means as may ices. If any item Invo the circumstances to verify amounts claimed on Monthly er shall submit to Developer, Develop of expense is disputed or contested by the items being disputed and the DOSP a statement, in writing, setting forth specific reasons therefore. Developer shall not withhold payment of the same and both Monthly Invoice for disputed items of expense but must pay same tnd and parties shall then, in good faith, diligently pursue cla dis uted items within thirty (30) days of receipt of written resolution of any P notice sent by Developer. dispute arising Should Developer and DOSP be unable to resolve any be submitted to m the provisions of this Section 1.09, the matter shall fro Arbitration pursuant to Section 5.02 hereof. item of expense or cost for If DOSP shall advise Developer of any and Maintenance Account but which there is insufficient funds in the Operating in an approved Budget, which is either approved by Developer or is set forth tly cause such item to be paid in full, it being the Developer shall pr omP intent hereof that DOSP not be required to advance any of its own funds to pay same and that ther e shall at all times be maintained in the Operating and - 12 - 84--1483 Maintenance Account a two month surplus of the anticipated monthly payments therefrom by DOSP. 1.10 Insurance. Upon the opening of the Parking Garage and Area B Surface Lot (as applicable) for business, DOSP shall maintain at the cost and expense of Developer which cost and expense shall be included in the Budget, the following insurance during the term of this Agreement: (A) Comprehensive General Liability (including Contractual liability) in limits not less than $590009000 per occurrence for Bodily Injury and Prop- erty Damage; (B) Garage Liability in the same limits as (A) above, including Automobile Insurance Hazard I; (C) Garagekeepers Legal Liability with limits not less than $5,000,000 per occurrence plus an excess coverage policy in an amount of not less than $109000,000. (D) Theft Coverage covering employee fidelity, inside or outside loss and burglary with a limit of not less than $100,000 per occurrence. (E) Worker's Compensation as required by Florida Statutes, Chapter 440. (F) Flood Insurance in an amount satisfactory to Developer, if obtainable. (G) Business Interruption Insurance covering loss of Gross Revenues for a period of at least two (2) years. (H) Insurance on the Parking Facilities against All Risks of physical loss or damage, including the expense of removal of debris of such property as a result of damage by an insured peril. Such policy shall be for ,,full replacement costs". Whenever such policy shall be due to be renewed, DOSP shall advise Developer of the proposed renewal amount of such policy _ 13 _ 84-1483 within 90 days of the renewal date. If Developer shall require a higher amount of insurance coverage, DOSP shall obtain same, if available. (I) Errors and Omissions Coverage, if available, in limits not less than $1,000,000. The insurance coverage required shall include those classifications as listed in Standard Liability Insurance Manuals, which most nearly reflect the operations of DOSP. Developer shall have a reasonable right to require increases in insurance coverage in accordance with reasonable and prudent business practices. All insurance policies and surety bonds required pursuant to this Agreement shall be issued by companies authorized to do business under the laws of the State of Florida, with the following qualifications as to management and financial strength: The Company must be no less than "A" as to .general policyholder's rating and no less than Class "X" as to financial rating, in accordance with the latest edition of Best's Key Rating Guide, published by A.M. Best Company, Inc. DOSP shall furnish certificates of insurance with the City and Developer named as additional insureds (except with respect to the policy described in (E) above) for the coverages specified herein prior to the commencement of operations hereunder and throughout the term of this Agreement, which certificates shall clearly indicate that DOSP has obtained insurance in the type, amount and classification as required for strict compliance with this Article, and that no material change or cancellation of the insurance shall be effective without thirty (30) days prior written notice to the City and Developer. 84-1483 t DOSP shall furnish certificates evidencing renewal or replacement of required insurance coverages, sixty (60) days prior to expiration or cancella- tion. i} The amounts of coverage required to be obtained by DOSP here er a r shall be adjusted pursuant to changes in the CPI Index every three years. All insurance coverages provided for in this Agreement shall be primary coverage, non-contributory and shall be in addition to other insurance w r carried by either party. Either party may affect any insurance coverage �^ required of it hereunder by the use of blanket insurance policies existing in favor of such party. Non-Discrimination. Neither Developer nor DOSP shall discrimi- ~ Y, 4: pate against any employee or applicant for employment to be employed in the performance of this Agreement with respect to age, sex or physical handicap (except where based on a bonafide occupational qualification), or because of race, color, religion, national origin or ancestry. t DOSP, for itself and its successors in interest, as apart of the R consideration hereof, and Developer, for itself and its successors in _ { interest, as a part of the consideration hereof, hereby covenant and agree that (1) no person on the grounds of age, sex or physical handicap (except where based on a bonafide occupational qualification), race, color, sex or s,.'.. national origin shall be denied the benefits of the Parking Facilities, or be �S"A� ( .F l.•. ar• �=s subjected to discrimination in the use of the Parking Facilities, 2 and, that in the furnishing of services herein, no person on the ground of age, sex or physical handicap (except where based on a bonafide occupational _ qualification) , race, color,sex or national origin shall be denied the r of the Parking Facilities, or be otherwise subjected to benefits discrimination. - 15 - 84-1483 0 as an "Event of Developer's Default": 1.12 Miami Grand Prix. DOSP shall abide by the Grand Prix Agreement as def fined in the Ground Lease and shall cooperate with the operator, Miami MotorSports, Inc., its successors and assigns. Nothing herein contained shall limit DOSP's right to enter into separate agreements with Miami MotorSports, Inc. with respect to DOSP's other facilities. 1.13 Conditions Precedent. Neither Developer nor DOSP shall be obligated to perform any of their obligations under this Agreement unless and until all of the conditions precedent set forth in the Ground Lease for the obligations of the City and Developer have been satisfied or waived. ARTICLE II REMEDIES 2.01 Events of Default - Developer. Failure of Developer to perform any of The following events are defined the covenants, conditions and agreements which are to be performed by Developer in this Agreement and the continuance of such failure for a period of thirty (30) days after notice thereof in writing from DOSP to Developer (which notice shall specify the respects in which DOSP 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 thirty (30) days and the Developer within said thirty (30) day period shall have commenced and thereafter shall have continued diligently to prosecute all actions neces- sary to cure such default. 2.02 Remedies for Developer's Default. If an Event of Developer's default shall occur, DOSP, to the fullest extent permitted by law shall have the right to pursue any or all of the following remedies: - 16 - 84--1483 (i) the right to terminate this Agreement and/or to maintain any and all actions at law or suits in equity or other proper proceedings against Developer to obtain specific performance or damages resulting from such default; and (ii) if such Event of Developer's Default shall have occurred as a result of the failure of Developer to pay money to DOSP pursuant to the terms hereof, interest on the amount due but unpaid shall accrue at a rate equal to two (2) percent above that rate from time to time charged by the Citibank, N.A., of New York to its best commercial customers, generally referred to as its prime rate (hereinafter referred to as the "Default Rate") from the date said monies were due to the date actually paid until such time as all of said money together with interest thereon shall have been paid in full to OOSP. 2.03 Events of Default - DOSP. (a) Events of Default. The following events are hereby defined as an "Event of DOSP's Default": (i) Failure of DOSP to perform any of the covenants, conditions and agreements of this Agreement which are to be performed by DOSP and the continuance of such failure for a period of thirty (30) days after notice thereof in writing from Developer to DOSP (which notice shall specify the respects in which Developer contends that DOSP has failed to perform any of such covenants, conditions and agreements) and unless such default be one which cannot be cured within thirty (30) days and DOSP within such thirty (30) day period shall have commenced and thereafter shall continue diligently to prosecute all actions necessary to cure such defaults, and (ii) the occurance of a discrepancy in DOSP's accounting referred to in Section 1.07 as a result of DOSP's gross negligence or wilful misconduct. -17- 84-IL483 (b) Remedies for DOSP's Default. If an Event of DOSP'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 to terminate the Agreement and/or to a writ of mandamus, injunction or other similar relief, available to it under Florida law against DOSP; and (ii) the right to maintain any and all actions at law or suits < �`¢ in equity or other proper proceedings to obtain specific performance or rL=�{ damages resulting from such default. 2.04 Unavoidable Delay. For the purpose of any of the provisions of N this Agreement, neither DOSP nor Developer, as the case may be, nor any ri sty ` successor in interest, shall be considered in breach of or in default in any .A of its obligations, in the event of unavoidable delay in the g , y performance of such obligations due to strikes, lockouts, acts of God, inability to obtain labor or materials due to governmental restrictions, delays caused by changes in applicable building codes, 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 Agreement shall be extended for the period of unavoidable delay; provided, however, that the party seeking the benefit of the provisions of this Section shall, within fifteen (15) 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. - 18 - 84-JL483 2.05 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 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 d other party. ARTICLE III INDEMNIFICATION Notwithstanding any policy or policies of insurance required of Developer, Developer shall indemnify and save harmless DOSP 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 Parking Facilities. Developer shall defend any and all such actions, claims, demands or suits on behalf of DOSP at Developer's sole cost and expense. Notwithstanding any policy or policies of insurance required of DOSP, DOSP shall indemnify and save harmless Developer from and against any and all claims or demands, suits at law, in equity or before administrative tribunals, - 19 - 84-1483 • due to the negligence of DOSP, its agents, servants, employees, or contractors arising out of the management, use or occupancy of the Parking Facilities by such persons. DOSP shall defend any and all such actions, claims, demands or suits on behalf of Developer at DOSP's sole cost and expense. ARTICLE IV INSURANCE PROCEEDS Whenever the Parking Garage or Area B Surface Lot, or any part thereof, (including any personal property furnished or installed in the premises) shall have been damaged, or destroyed, and DOSP shall become aware of such damage or destruction, DOSP shall promptly make proof of loss in accordance with the terms of the insurance policies and shall promptly give Developer written notice of such damage or destruction. ARTICLE V CONDEMNATION, DESTRUCTION AND ARBITRATION 5.01 Termination as a Result of Condemnation or Destruction. In the event that the Parking Garage or Area B Surface Lot or the Developer Improvements (as the term is defined in that certain Lease Agreement between the Developer and the City of even date herewith for development of the Bayside Specialty Center) shall be taken for any public use or purpose by the exercise of the power of eminent domain, or shall be conveyed to a governmental entity by Developer to avoid proceedings of such taking, or shall be damaged and destroyed and not restored and such event shall result in a termination of the Ground Lease, then the Developer may, upon giving DOSP ten (10) days prior written notice terminate this Agreement. If Developer shall - 20 - 84-1483 4 1 so terminate this Agreement, Developer shall pay to DOSP the cost and expenses actually incurred by DOSP in connection with the termination of employees. 5.02 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: (a) DOSP shall name one member; (b) Developer shall name one member; and t.. ,! (c) The aforesaid members shall promptly name a third member. (ii) Every member of the Arbitration Panel must be an Arbitrator approved by the American Arbitration Association. (iii) If either party shall fail to designate a member within fifteen (15) days after a written request so to do by the other party, then such other party may request the President of the Florida Chapter of the American Arbitration Association to designate a member, who when so designated shall act in the same manner as if he had been the member designated by the party so failing to designate an arbitrator. If the two members are unable to agree upon a third member within ten (10) days from r the last date of designation, such third member shall be designated by the i President of the Florida Chapter of the American Arbitration Association, upon the request of either of the two members. (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 determining any matter before them, the Arbitration Panel shall apply the terms of this Agreement, and shall not have the power to vary, modify or reform any terms or provisions of the Agreement in any respect. The Arbitration Panel shall afford a hearing to DOSP and to the Developer and the right to - 21 - 84--1483 r 1 0 0\ 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 discovery as they may agree, or as determined by the Arbitration Panel. The Arbitration Panel shall have the right to question witnesses at the hearing, but not to call witnesses. The Arbitration Panel may grant continuances for good cause or with the agreement of both parties. The Arbitration Panel may render a decision at the close of the hearing, or may request briefs on any or all issues. Any and all such briefs, including reply briefs, shall be filed with the terms and on the schedule set by the Arbitration Panel, but in any event no later than forty-five (45) days following the commencement of the hearing. The Arbitration Panel shall render a determination within sixty (60) days from the conclusion of the hearing. If no determination is rendered within such time, unless the parties agree otherwise, a new Arbitration Panel shall be selected as described above, but the new Arbitration Panel shall render a determination solely upon review of the record of the hearing without a further hearing. (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 Agreement shall be final, -22- 84-1483 binding and conclusive on DOSP and Developer and enforceable in any court of competent jurisdiction. together with the detelrmination, the Arbitration Panel shall provide a written explanation of the basis for the determination. Each party shall pay the fees and expenses of the member of the Arbitration Panel designated by such party, such party's counsel and witness fees, and one-half (1/2) of all expenses of the third member of the Arbitration Panel. ARTICLE VI MAINTENANCE STANDARDS 6.01 Waste. Neither Developer nor DOSP shall permit, commit or suffer waste or impairment of the Parking Facilities or any part thereof. 6.02 Maintenance and Operation. DOSP shall at all times keep the Parking Facilities and all furnishings located therein in good and safe condition and repair (reasonable wear and tear excepted), and in the occupancy, maintenance and operation of the Parking Facilities, shall comply with the Operation and Maintenance Manual with respect to the Parking Facilities to be developed by Developer and DOSP within ninety (90) days of the Completion Date. DOSP shall have a right to amend the Operating and Maintenance Manual with Developer's prior written approval, which shall not be unreasonably withheld. ARTICLE VII MISCELLANEOUS PROVISIONS 7.01 No Partnership or Joint Venture. It is mutually understood and agreed that nothing contained in this Agreement is intended or shall be construed in any manner or under any circumstances whatsoever as creating or - 23 - 84-1483 e establishing the relationship of co-partnerst or creating or establishing the relationship of joint venturers between DOSP and Developer, or as constituting Developer as the agent or representative of DOSP for any purpose or in any manner whatsoever. It is further understood and agreed that neither DOSP nor any of its Directors, employees or agents have made any representation or warranty to Developer with respect to any federal tax matters applicable to the Parking Facilities nor that any tax benefits will be or become available to Developer as a result of the transaction herein described and that Developer has not relied upon any statement or representation made in connection with the same by DOSP, its Directors, employees or agents. 7.02 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. Further- more, the terms of this Agreement allow reasonable public access to the water, reasonable public use of such property, and comply with other charter water- front setbacks and view corridor requirements. Any conflicts between this Agreement and the aforementioned Codes and Charters shall be resolved in favor of the latter. If any term, covenant, or condition of this Agreement or the application thereof to any person or circumstances shall, to any extent, be illegal, invalid, or unenforceable because of present or future laws or any rule or regulation of any governmental body or entity or becomes unenforceable because of judicial construction, the remaining terms, covEnants and conditions of this Agreement, or the application of such term, covenant or condition to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby and each term, covenant, or condition of this Agreement shall be valid and be enforced to the - 24 - 84-1483 N fullest extent permitted by law. Developer covenants and agrees that if this � Agreement shall be judicially determined to be invalid and unenforceable for Y{Y` reason whatsoever, the Ground Lease shall nevertheless remain in full %Ft ` any force and effect unless and to the extent that the Ground Lease shall also be ' determined to be invalid and unenforceable. Contemporaneously with the execution of the Agreement, DOSP's Attorney has delivered an opinion to Developer opining that the execution and delivery hereof by DOSP is in lr compliance with the Charter of the City of Miami, the City of Miami Code and the Dade County Charter and Code. 7.03 Conflicts of Interest City and DOSP Re resentatives Not Individually Liable. No member, official, representative, Off -Street Parking 1 Board Member or employee of the City or the City Manager or DOSP or the ,.>. Director of DOSP shall have any personal interest, direct or indirect, in this -d 7f Agreement, while serving in their representative or official capacity. No member, official, Off -Street Parking Board Member, representative or employee 4 of the City or the City Manager or DOSP or the Director of DOSP shall be n personally liable to Developer or any successor in interest in the event of default or breach hereunder by DOSP or City or for any amount which may any become due to Developer or successor or on any obligations under the terms of the Agreement. 7.04 Notice. All notices, consents, approvals, disapprovals and other written communications under this Agreement by DOSP to Developer, or by Developer to DOSP shall be sufficiently given or delivered if dispatched by registered or certified mail, postage prepaid, return receipt requested; and (a) Developer. In the case of a notice or communication to Developer, if addressed as follows: - 25 - 84-1483 4k 'r r General Counsel Bayside Center Limited Partnership 10275 Little Pautuxent Parkway c/o The Rouse Company Columbia, Maryland 21044 (b) DOSP. In the case of a notice or communication to DOSP, if addressed as follows: Executive Director of Department of Off -Street Parking 190 N.E. Third Street Miami, Florida 33132 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 7.04. 7.05 Titles of Articles and Sections. Any titles of the several parts, Articles and Sections of this Agreement are inserted for convenience of reference only and shall be disregarded in construing or interpreting any of its provisions. 7.06 Counterparts. This Agreement is executed in six (6) counter- parts, each of which shall be deemed an original, and such counterparts shall constitute one and the same instrument. 7.07 Successors and Assigns and Rights Upon Termination. All of the covenants, conditions and obligations contained in this Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of DOSP and the Developer. Developer shall not assign or transfer its interest in this Agreement except as a part of a transfer permitted pursuant to the Ground Lease. DOSP may not assign or transfer its interest in this Agreement without Developer's prior written approval. 7.08 Use of Bond Proceeds. It is intended that the Parking Garage be financed through the issuance of industrial development bonds (the "Bonds") by the City pursuant to Chapter 159 Part II of the Florida Statutes, therefore, Developer and DOSP covenant and agree as follows: -26- 84-1483 4b A - 7 (A) the Bonds are intended to be tax-exempt "industrial devel- opment bonds" within the meaning of Section 103(b)(2) of the Internal Revenue Code and Chapter 159 Part II of the Florida Statutes and therefore a neither Developer nor DOSP will M commit, perform, or cause to be committed or performed any act which will adversely affect the tax-exempt status of the interest on the Bonds, (ii) or fail or refuse to commit or perform any act, the result of which failure or refusal will adversely affect such tax-exempt status; (B) that neither Developer nor DOSP will make any use of the proceeds of the Bonds or any moneys, securities or other obligations on a deposit to the credit of the Developer or otherwise that may be deemed by t- the Internal Revenue Service to be proceeds of the Bonds pursuant to Sec- tion 103(c) that would cause the Bonds to be an "arbitrage bond" within the meaning of Section 103(c); (C) that Developer and DOSP will comply with those provisions of Section 103(c) that are applicable to the Bonds on the'date of issuance of the Bonds and that subsequently lawfully may be made applicable to the Bonds (to the extent that provisions of Section 103(c) apply to only a t;k,,.. portion of the Bonds, proceeds thereof or other moneys, securities or other obligations deemed to be proceeds, Developer and DOSP intend that the covenants of Developer and DOSP contained in this Section 7.08 be construed to require Developer and DOSP to comply with Section 103(c) to the extent of such applicability); and (D) that neither Developer nor DOSP will, W take any action, (ii) fail to take any action, or (iii) make any use of the proceeds of the Bonds, which would cause the interest on the Bonds to be or become subject to federal income taxes in the hands of the holders thereof. - 27 - 84-1483 te a: endtnentS. Developer and DOSP shall cooperate in amending this a 7'.09 �► be required by bond counsel or in accordance document from time to time as may such amendment shall not rovided, that any however, F with the bond documents; p rights of either Developer or affect adversely in any ' material respect any DOSP under this Agreement. IN WITNESS WHEREOF, ROUSE-MIAMI+ INC., the sole general partner of BAYSIDE CENTER LIMITED PARTNERSHIP, has caused this Ag reement to be signed in and its corporate seal to be hereunto affixed its name by its Vice Presidentand the DEPARTMENT OF and duly attested to by its Assistant Secretary _ - PARKING has caused this Agreement to be signed in its name by Roger OFF-STREET PA ecutive Director of the Department of Off -Street Parking of M. Carlton, the Ex on the day by the City of Miami and duly attested to the Secretary of DOSP, and year first hereinabove written. BAYSIDE CENTER LIMITED PARTNERSHIP ATTEST: general partner By: ROUSE-MIAMI, INC., g By: John W. Steele, III x [Corporate Sea17 DEPARTMENT OF OFF-STREET PARKING OF THE z k,. ATTEST: CITY OF MIAMI 1 rj r Rx, a r By Roger M. Carlton, Director x� Secretary 1509F/451A 84 .1483 0 SUPPLEMENTAL AGREEMENT THIS SUPPLEMENTAL AGREEMENT ("this Agreement") dated December , 1984 by and between the CITY OF MIAMI, a municipal corporation of the State of Florida having an address c/o City Manager's Office, City Hall, 3500 Pan American Drive, Miami, Florida 33133 ("City"), MIAMI MOTORSPORTS, INC., a corporation organized and existing under the laws of the State of Florida having an address at 10300 S.W. 72 Street, Miami, Florida 33173 ("Licensee"), and BAYSIDE CENTER LIMITED PARTNERSHIP, a limited partnership organized and existing under the laws of the State of Maryland, having an address at 10275 Little Patuxent Parkway, Columbia, Maryland 21044 ("Bayside"). W I T N E S S E T H: WHEREAS Licensee and City entered into an Agreement dated June 14, 1982 ("the Original License") under which City granted Licensee a license to use a portion of Bayfront Park and adjacent roadways and land owned by the City for the staging of grand prix racing events on certain terms and conditions; and WHEREAS Licensee and City acknowledge that the Original License is in full force and effect and that neither party is, as of the date hereof, in default of the Original License; and WHEREAS Bayside and City have entered into a Lease Agreement of even date herewith for the development of a waterfront specialty center ("Bayside Specialty Center") on a portion of Bayfront Park (the Lease Agreement, as amended from time to time hereinafter called "Retail Lease") and a Lease Agreement of even date herewith for the development of an approximate 1200 car parking garage and related surface parking (collectively "Parking Garage") e (the Lease Agreement, as amended from time to time, hereinafter called j"Parking Garage Lease"). The premises demised under the Retail Lease is shown and designated on Exhibit A hereto as the "Retail Parcel", "Area A.4", and i "Area A-5" and the premises demised under the Parking Garage Lease is shown as designated on Exhibit A hereto as the "Garage Parcel" and "Area-B", each as j more particularly described in the Retail Lease and the Parking Garage Lease respectively (hereinafter collectively called "Leased Property"); and WHEREAS, City, Bayside and Licensee desire to set forth their understanding, rights and obligations with respect to staging of the race, race -supported events and race -associated events on or near the Leased Property and the balance of Bayfront Park by entering into this Supplemental Agreement contemporaneously with the execution of the Amendment to Agreement ("Amendment") by and between the City and Licensee which amends the Original License (the Original License as amended by the Amendment hereinafter called "License"), NOW, THEREFORE for Ten Dollars (10.00) and other good and valuable consideration, receipt and adequacy of which is hereby acknowledged, the parties agree as follows: Section 1. Permitted Events. 1.1. Race Event. As of the date of this Agreement, the race events contemplated by the License currently consist of an annual two (2) day race (exclusive of set-up and take -down periods) for race cars, which event occurs on a Saturday and Sunday ("Race Event"). The parties agree that, with the City's and Bayside's prior express, written approval in each instance, the Race Event may be longer than a two (2) day period annually and/or there may be more than one annual Race Event. The parties agree that if the Licensee were to request that the Race Event be expanded beyond two (2) days or that - 2 - 84-1483 the Race Event occur more than once annually, the City, Licensee and Bayside shall in good faith negotiate if and in what manner the Race Event can be expanded without adversely affecting the ability of the Bayside Specialty i Center to operate normally. Such negotiations shall commence not less than ten (10) days after Licensee gives the City and Bayside notice of its request to change the frequency or length of the Race Event. 1.2. Race -Supported Events and Race -Associated Events. Section 43 of the License provides that Licensee contemplates conducting race -supported events and race -associated events in addition to the Race Event. As of the date of this Agreement, the only race -associated events are (i) the registration and inspection of race cars conducted the day before the .Race Event on the race course and (ii) the go-cart races conducted on the FEC Tract the Sunday before the Race Event. As of the date of this Agreement, Licensee J,; riot conducting race -supported events. Should Licensee elect to conduct any other race -associated events on any race -supported events in locations on those portions of the Leased Property which form part of the race course as shown on Exhibit B or in the Bayside Approval Area (as hereinafter defined) or should any such events be located on the FEC Tract and involve hazardous materials, the parties agree to negotiate in good faith how the race -supported event and/or race -associated event may be conducted so that the events may be held without adversely affecting pedestrian and vehicular access to and from the Leased Property or otherwise adversely affecting the use and enjoyment of the Leased Property by Bayside, its tenants, substenants, licensees, and their employees, agents and business invitees. Such negotiations shall commence no later than ten (10) days after the date Licensee gives the City notice pursuant to the License that Licensee intends to conduct a race -supported event or race -associated event. Licensee's right to use the amphitheater and -3- 84-1483 other structures the City proposes to construct in Bayfront Park shall be subject to any agreement between the City and any manager or operator thereof and any rules and procedures that the City or manager may promulgate relating to the use of the amphitheater and other improvements. Notwithstanding the foregoing, Bayside shall not be obligated to close the Parking Garage or to do any of the activities specified in Section 4.2 of this Agreement except during the Race Event. Section 2. Notice and Approvals under the License. 2.1. Notices and Approvals. Whenever Licensee is required under the License to give the City notice or to provide the City with insurance informa- tion or to request the City's consent on approval, the City, immediately upon receipt of such notice or information, shall forward a copy to Bayside in accordance with Section 8 of this Agreement. 2.2. Limitation on Bayside's Approval Rights. The License provides that the Licensee has a right to conduct the Race Event on the dates approved by the City pursuant to Section 33 of the License. Section 33 of the License contains a restriction on the periods of time of the year in which a Race Event, race -associated event, race -supported event and any set-up or take -down periods may be conducted which dates correlate to certain peak retail sales periods of the Bayside Specialty Center. The parties agree that if the authority which sanctions the Race Event were to require Licensee to conduct the Race Event only within the prohibited dates referenced in Section 33 of the License or should the associated set-up and take -down periods occur within the prohibited dates, Licensee shall in good faith negotiate with the sanctioning authority to have the date of the Race Event changed to a date permitted under Section 33. Should Licensee be unsuccessful in such negotiations, the City, Licensee and Bayside shall in good faith negotiate if - 4 - 84-1483 and in what Manner the Race Event may be conducted during the prohibited dates without adversely affecting the ability of the Bayside Specialty Center to operate normally in the peak retail sales periods. Whenever any of the consents or approvals of the City are required under Sections 1, 4, 8, and 12 and any schedule approval provisions under section 33 of the License and the consent or approval relates to an activity of the Licensee or its employees, agents, concessionaires or invitees (a) within the Leased Property, or (b) within miamarina or (c) within (1) that portion of Bayfront Park (including, without limitation, the proposed baywalk) immediately south of the Leased Property and north of an imaginary line running east and west along the southernmost edge of the proposed pedestrian walk linking Biscayne Boulevard and the Pepper Fountain to Biscayne Bay to be known as the Flagler Promenade, as more particularly shown on Exhibit B hereto, (ii) the vehicular access area to, across and through Port Boulevard, Biscayne Boulevard (from Chopin Plaza to I-395 interchanges) and from 4th Street to the Leased Property and Parking Garage and (iii) the sidewalks along both sides of Biscayne Boulevard, between and including the south sidewalk of Flagler Street to the north side of Port Boulevard and to, and along both sidewalks of 4th Street from the People Mover Station to and across Biscayne Boulevard to the Leased Property and Parking Garage ("Bayside Approval Area"), the City shall not give its consent or approval without first obtaining Bayside's prior written consent or approval, which shall not be unreasonably withheld. Any consent or approval given by the City without Bayside's consent or approval as provided for in this Section 2 shall be ineffective. Section 3. Race Course. 3.1. The parties recognize that a portion of Bayfront Park may be under construction during future years. The Leased Property and a portion of - 5 - 84-1483 Bayfront Park are scheduled to be under construction during a period i commencing on or about March 15, 1985 and ending upon completion of construction of the Bayside Specialty Center and Parking Garage which are scheduled to be completed approximately two (2) years later subject to the terms of the Retail Lease and Parking Garage Lease. The construction shall include, but not be limited to, the demolition of the Bayside Auditorium, i construction of the Bayside Specialty Center and Parking Garage, creation by 1 the United States Corps of Engineers of additional land to Bayfront Park, and ' 1 relocation of roadways and utilities. 3.2. 1985 Race Course. With regard to the 1985 Race Event, which is scheduled to occur on February 23rd and 24th, the Licensee shall use only those portions of Bayfront Park, the Leased Property, and the FEC Tract shown on the Site Plan attached to the License as Exhibit C for the race circuit, s a_�in areas, and concession areas which are consistent with the areas used for the 1983 and 1984 Race Events. The Bayside Auditorium shall not be demolished until on -or after March 15, 1985. All operations, jersey barriers, fencing, grandstands and other improvements, fixtures and equipment of the Licensee and its concessionaires shall be removed from the Leased Property and all barriers, fencing or any other obstruction shall be removed from the east side of Biscayne Boulevard between N.E. 4th Street and N.E. 5th Street, Port Boulevard, Miamarina Parkway or other access roads to the Leased Property by no later than 7 a.m. on March 15, 1985. The balance of the operations, jersey barriers, fencing, grandstands and other improvements, fixtures and equipment of the Licensee and its concessionaires shall be removed by 7 a.m. March 31, 1985. 3.3. 1986 or 1987 Race Course. With regard to the staging of the Race Event in 1986 and each year thereafter until this Agreement terminates, - 6 - 84-1483 the Licensee shall use those portions of the Bayfront Park;�Athe Leased Property,, -and FEG — Tract shown on Exhibit B attached hereto and made a part hereof for the race circuit, staging areas and concessionaire areas, It is the intent of the parties that the Licensee be able to conduct the Race Event in 1986 and 1987. The parties recognize that, at the time of the 1986 or 1987' Race Events, Bayside Specialty Center, the Parking Garage, and related site improvements on the Leased Property and on the balance of Bayside Park i (including, but not limited to, utilities and service roads) will be under construction. Bayside agrees that the construction of the entrance and service roads within the Leased Property and on a portion of Bayfront Park (but excluding the baywalk to be located over the property to be filled by the T{" KAh U.S. Corps of Engineers) for which Bayside is responsible and which form part of the race course are a first priority for Bayside to complete in time for t4_ ;he J.986 Race Event and Bayside agrees to make reasonable efforts to complete such roadways in time for the 1986 Race Event (including the necessary cure period for road materials). Should it become apparent to the parties that such roadways may not be completed in time for the 1986 Race Event, the City u, shall so notify Bayside and the City agrees that it will exert its best efforts• to complete such roadways or cause them to be completed in time for the 1986 Race Event unless the City elects to exercise the option set forth in pry` the License under Section 8 to change the location of the race course. If the ,.> City completes such roadways, then in such event Bayside shall Y P Y � , y pay the City s the amount Bayside would have had to pay its contractor or subcontractors to complete such roadways using reasonable efforts and the City shall be responsible for the additional cost incurred to complete the roadways. The = City's completion of such roadways shall be in accordance with Bayside's plans and specifications. Notwithstanding the foregoing, Bayside and the City make 7 - 84-1483 no representations or warranties as to the condition of this entryway or 4 ` other roadway within the racing course or their sufficiency for use as a race course. Bayside and the City agree to submit construction drawings for any roadway comprising the race course shown on Exhibit B for Licensee's review and comment. Bayside agrees that if such roads are completed and form a part of the race course that Bayside shall remove or relocate any of its construction materials, equipment and debris from such roads and the set-up areas in accordance with a schedule reasonably acceptable to Licensee which will enable Licensee to set-up for the Race Event, and to remove all of Bayside's materials, equipment and debris from any areas outside the construction fences not later than 6 p.m. on the Thursday night before the Race Event. Bayside agrees to make diligent efforts to place the construction site in as good of an appearance as practicable for the Race Event. Notwithstanding the forego- ing, Bayside shall not have any obligation with respect to such roads for the 1986 Race Event unless the City shall make similar efforts to complete its construction obligations under the Retail Lease and Parking Garage Lease in Bayfront Park (including but not limited to, the construction of the baywalk on the property to be filled in by the U.S. Corps of Engineers) which are necessary to permit the Race Event to be run on the course shown on Exhibit B. The parties hereto acknowledge that the baywalk which serves as a part of the race course is located on property to be filled in by the U.S. Corps of Engineers. Bayside's reasonable good faith efforts and the City's best efforts to complete the portion of the race course that Bayside is responsible to build is conditioned upon the U.S. Corps of Engineers being able to complete the infill for the baywalk portion of the race course so that the City can complete the segment of the race course located on the infill in - 8 - 84-1483 time for the 1986 Race Event. Should the U.S. Corps of Engineers be unable to do so in time for the race course to be available for the 1986 Race Event, Bayside and the City agree to extend their respective obligations to complete that portion of the race course for which Bayside is responsible to the holding of the 1987 Race Event. On or about six (6) months prior to the proposed Race Event for 1986 the parties hereto shall meet to discuss the status of the improvements under construction. Except for the obligations contained in this Section 3.3, neither Bayside nor the City shall have any obligation or be deemed to make any representations as to the condition of the Bayside Specialty Center, the Parking Garage, or the site improvements at the time of the 1986 Race Event. Bayside shall permit Licensee to use the Parking Garage for the 1986 Race Event at no cost to Licensee (except for utility costs which are Licen- see's responsibility to pay) it its then -current, "as is" condition and shall cease its construction activities within the Parking Garage for the three (3) consecutive days preceding the Race Event and for the Race Event. The Parking Garage shall be delivered to Licensee generally free of dust, dirt, debris and construction materials and in a generally clean condition. The parties agree that except for the Parking Garage, the construction sites shall not be available for use by Licensee for the Race Event. 3.4. Future Construction. Should any other future construction activity of the City or Bayside potentially interfere with the staging of any Race Event pursuant to this Agreement, the party conducting the construction shall coordinate that staging of its construction with the Licensee to enable Licensee to stage the Race Event on the approved date and on the race course shown on Exhibit B hereto. Should any future construction activity of Dade County or any person or entity other than the City or Bayside interefere with 84-1483 i I the staging of the Racing Event, Licensee shall submit a proposal for relocation of the racing circuits, pit areas, grandstands, concession areas, facilities and other structures or improvements to the City Manager and Bayside for review and for their separate approvals not less than ninety (90) days before the scheduled date of the Race Event. Such relocation shall be at no cost to Bayside or the City. The City Manager and Bayside shall each have seven (7) days in which to approve or disapprove the proposal, which approval shall not be unreasonably withheld by Bayside. 3.5. Alternate Race Course. Should the City elect to exercise its option under Section 8 of the License to have the race course for a particular Race Event located outside Bayfront Park, Licensee shall submit a proposed schedule for the set-up and take -down activities related to the Race Event not less than six (6) months prior to the Race Event to the City and Bayside for approval, which schedule of activities shall be comparable to the schedule attached as Exhibit C, or any superceding schedule approved by all the parties. Section 4. Use of the Leased Property After Completion of the Bayside Specialty Center. 4.1. Cooperation. The parties acknowledge that Bayside and the City have certain rights and obligations related to the operations on the Leased Property. Bayside agrees to cooperate with Licensee in the staging of the Race Event on the Leased Property and Licensee agrees to cooperate so that the staging of the Race Event shall not adversely affect the use and enjoyment of the improvements located on the Leased Property by Bayside, its tenants, con- tractors, employees or invitees. At the request of any party, before each Race Event, the parties shall meet to discuss reasonable adjustments in the location and scheduling of the Race Event, and setup and take -down activities. - to - 84-1483 [I 4.2. BaysideIsObligation. During the Race Event, Bayside agrees to cause the following to occur: (a) In the manner permitted by law, Bayside will close the Bayside Specialty Center to the general public during the two (2) days of the Race Event. Except as otherwise provided as to Areas A-4 and Areas A-5 under subparagraph (e) of this Section 4.2, Bayside Specialty Center may be open for business to users of the marina and patrons of the Race Event. (b) Bayside shall remove any temporary planting structures from the race course roadway in accordance with the approved schedule. (c) Provided (i) Licensee pays the Parking Garage Fee and Storage Fee (each as hereinafter defined) and (ii) provided that the closing of the Parking Garage does not violate the tax-exempt status of any bonds issued to finance construction of the Parking Garage and that the closing of the Parking Garage is acceptable to the bond holders, Bayside shall close the Parking Garage to the general public for a five (5) day period annually including the two (2) days of the Race Event and shall permit Licensee to use not more than one-half of the parking area on one floor for one day before and one day after the five (5) day period for the set-up of a race control center and for storage of communication equipment ("Press Area"). The Press Area shall be so located as to permit the normal flow of traffic in and out of the Parking Garage. Licensee shall be permitted to use the Parking Garage for the storage and display of race cars and for promotional activities related to the Race Event for a five (5) consecutive day period each year (which includes the Race Event), the precise days and hours to be worked out between parties in good faith. Licensee shall pay Bayside an amount equal to the gross revenues that would otherwise be generated for the parking spaces located in the Press Area 84-1483 f during Licensee's use of the Press Area the day prior to and the day after the Race Event ("Storage Fee"). Licensee shall pay Bayside Five Thousand Dollars ($5,000) ("Parking Garage Fee") each year for the five (5) day use of the Parking Garage during the first five (5) years that the Parking Garage shall be open for business. Thereafter the Parking Garage Fee shall be an amount sufficient to pay the debt service on the loans used to finance the Parking Garage for the days, or portions thereof, that Licensee will be using the Parking Garage, or any portion thereof. The Storage Fee shall not be adjusted. The Parking Garage Fee and Storage Fee shall be paid to Bayside's parking garage manager on the date and at the time of delivery of the Press Area in accordance with this Agreement. Licensee shall be responsible for the payment of all utility costs connected with its use of the Parking Garage. At the time of closing on the issuance and sale of any tax-exempt bonds, the proceeds of which would be used to finance the construction of the Parking Garage, the City agrees that it will obtain an opinion from its bond counsel, reasonably satisfactory to Licensee and Bayside, that the use of the Parking Garage by Licensee as provided for in this Agreement does not violate the tax-exempt status of such bonds. Should bond counsel be unable to issue such opinion, the parties hereto will in good faith negotiate such modifications to this Agreement as are necessary to permit the issuance of the opinion by bond counsel and/or to provide Licensee with a facility for use in storing race cars and staging promotional events related to the Race Event. (d) After Bayside Specialty Center is open, the fence to be erected by Licensee shall be erected on the park side of the Bayside Specialty Center and the fencing shall be installed in locations and in a manner reasonably acceptable to Bayside. The Licensee shall be responsible for monitoring access to and from Bayside Specialty Center by patrons of the Race Event. No - 12 - 84-1463 1 structures of any kind, except for signs and visual barriers may be erected or installed in the area designated as "No Structures Area" on Exhibit B without Bayside's prior written approval and any signs or barriers within such area or anywhere else on the Leased Property shall be subject to Bayside's prior written approval as to location, design and schedule for set-up and take -down, which approvals shall not be unreasonably withheld. Notwithstanding any other provision to the contrary in this Agreement, should the Licensee fail to draw more than 12,000 attendance per day of the Race Event in any two (2) consecutive years, which condition is subject to unavoidable delays under Section 7.4 of this Agreement, Bayside shall no longer be obligated to close the Bayside Specialty Center to the general public during the Race Event and Licensee shall provide free pedestrian access to and from the Bayside Specialty Center at locations reasonably acceptable to Bayside. ira attendance shall be based upon a reported daily ticket sales attendance and non -paid attendance made by Licensee in writing to the City and Bayside within thirty (30) days of the Race Event. The City shall have a reasonable right to audit or inspect Licensee's records to verify the attendance figures in accordance with the audit and inspection provisions contained in the License, and if requested by Bayside, the City shall conduct such an audit or inspection. (e) The parties acknowledge that pursuant to Section 2.1(a) of the Retail Lease, Bayside has a right to construct a restaurant on a portion of the Leased Property known and designated in the Relail Lease as "Area A-4" and/or operate and use the light tower to be constructed on that portion of the Leased Property designated in the Retail Lease as "Area A-511. Bayside agrees that should it exercise either option that - 13 - 84-1483 1 i (i) the retail space of Area A-5 shall be closed to the general public during the Race Event. (ii) the restaurant located on Area A-4 shall be closed to the general public during the Race Event unless the Licensee by written notice to Bayside and Bayside's tenant operating the restaurant, which notice should be given no later than thirty (30) days before the Race Event, shall elect to reserve the restaurant for use during the Race Event. Bayside shall provide in its lease agreement with the tenant of Area A-4 that the tenant shall not charge the Licensee a fee for use of the restaurant during the Race Event greater than that which is necessary to ensure the tenant gross receipts for the two days of the Race Event equal to the gross receipts the tenant receives on its most profitable day of the year (exclusive of reimbursement and reasonable overhead and profit ,or special services which the tenant does not ordinarily provide its customers). Should the Licensee reserve the restaurant for a period of time beyond its normal business hours, the maximum amount the tenant may charge shall be adjusted accordingly. The specific details of use, operation, entertainment and other matters shall be the responsiblity of the Licensee to negotiate with the tenant. Until the tenant and Licensee shall enter into an agreement relating to the use of the restaurant during the Race Event, neither party shall be legally bound to the other, it being the intent of the parties to this Agreement to agree only upon a standard for the maximum amount that Licensee should be charged for the use of the restaurant on Area A-4. 4.3. Licensee's obligations. Licensee agrees that in addition to its other obigations under the License and this Agreement that Licensee shall at its expense do the following: - 14 - 84-1483 i (a) Licensee shall commence the set-up activities for the Race Event in the areas shown on Exhibit B within the time periods described in Exhibit C. The set-up activities are more particularly described in Exhibit C. Except as otherwise expressly provided in this Section 4, Licensee shall complete the take -down of all Race Fixtures (as hereinafter defined) within the respective time periods described in Exhibit C, or in accordance with such other schedule as may be approved by the parties in writing. (b) Vehicular access for service vehicles shall be available to i Bayside and to the tenants of the Bayside Specialty Center up to 11:59 p.m. on the Friday immediately prior to the Race Event and shall be restored no later than 7 a.m. on the Monday following the Race Event. The route for such service vehicles shall be worked out in advance and shall be reasonably acceptable to Bayside. (c) Licensee shall provide (i) vehicular access for emergency vehicles to the Bayside Specialty Center and the Parking Garage, and (ii) pedestrian access for employees of Bayside, its tenants and agents without requiring the employees to purchase tickets or pay any other fee or charge throughout the Race Event, any race -supported event or race -associated event and any -set-up and the take -down periods of each. Two (2) weeks prior to the Race Event, Bayside shall provide Licensee with a list of Bayside's employees and its tenants and agent's employees who anticipate working at Bayside Specialty Center during the Race Event. Licensees shall have a right to compare this list of employees with a prior list, if available, or to require the list be verified in any other reasonable manner to ensure that the individuals named on the list are bonafide employees at Bayside Special Center. In addition, Bayside shall permit Licensee to place a ticket kiosk within the Leased Property by the entrance gate to the Race Event during the - 15 - 84- .1483 two days of the Race Event in a location selected by Bayside acting reasonably after consultation with Licensee. The design, construction, installation and removal of the kiosk shall be subject to Bayside's approval, which shall not be unreasonably withheld. (d) Licensee shall at its own expense promptly remove or cause to be removed all grandstands, barriers, fencing, bleachers, fixtures, safety devices and any other equipment, apparatus and improvements of Licensee, its j invitees and concessionaires ("Race Fixtures") utilized with regard to any event to which the License applies which removal shall be consistent with the schedule in Exhibit C. Licensee shall at its own expense promptly restore or cause to be restored all park area, streets, facilities and other improvements (including, without limitation, the Parking Garage) used by the Licensee, its concessionaires, employees, contractors and invitees to the condition such park area, streets, facilities and other improvements were in prior to the set-up period for the Race Event. Such removal and restoration shall be more particularly detailed in the schedule referred to in Section 33 of the License. (e) Pedestrian and vehicular access to and from the Bayside Specialty Center and Parking Garage to public streets shall be available no later than 7 a.m. on the Monday morning immediately following the Race Event. Except for the Press Area, all Racing Fixtures shall be removed from the Parking Garage by 9 a.m. on the Monday morning immediately following the Race Event. Any restoration of the Parking Garage shall be performed as expeditiously as possible and in a manner and at such times as would least interfere with the use of the Parking Garage but in no event shall it be completed later than 7 a.m. on the Friday morning following the Race Event. (f) On the earlier to occur of the expiration of this Agreement or the License, the Licensee shall, to Bayside's and the City's satisfaction, - 16 - 84-1483 two days of the Race Event in a location selected by Bayside acting reasonably after consultation with Licensee. The design, construction, installation and removal of the kiosk shall be subject to Bayside's approval, which shall not be unreasonably withheld. (d) Licensee shall at its own expense promptly remove or cause to be removed all grandstands, barriers, fencing, bleachers, fixtures, safety devices and any other equipment, apparatus and improvements of Licensee, its invitees and concessionaires ("Race Fixtures") utilized with regard to any event to which the License applies which removal shall be consistent with the schedule in Exhibit C. Licensee shall at its own expense promptly restore or cause to be restored all park area, streets, facilities and other improvements (including, without limitation, the Parking Garage) used by the Licensee, its concessionaires, employees, contractors and invitees to the condition such park area, streets, facilities and other improvements were in prior to the set-up period for the Race Event. Such removal and restoration shall be more particularly detailed in the schedule referred to in Section 33 of the License. (e) Pedestrian and vehicular access to and from the Bayside Specialty Center and Parking Garage to public streets shall be available no later than 7 a.m. on the Monday morning immediately following the Race Event. Except for the Press Area, all Racing Fixtures shall be removed from the Parking Garage by 9 a.m. on the Monday morning immediately following the Race Event. Any restoration of the Parking Garage shall be performed as expeditiously as possible and in a manner and at such times as would least interfere with the use of the Parking Garage but in no event shall it be completed later than 7 a.m. on the Friday morning following the Race Event. (f) On the earlier to occur of the expiration of this Agreement or the License, the Licensee shall, to Bayside's and the City's satisfaction, - 16 - 84-1483 restore all park area, streets, facilities and other improvements within the Bayside Approval Area to their original condition, insofar as possible. (g) Licensee shall cause the Bayside Specialty Center to be reasonably accessible by land to patrons of the Race Event, users of the marina, service vehicles and suppliers of Bayside's tenants, and Bayside's personnel and tenants. 4.4. City Obligations. The City agrees that in addition to its other obligations under the License that the City shall at its expense do the following: (a) The City, at its cost and expense shall remove or caused to be removed any removeable decorative tile comprising the surface of the circular entryway to Bayside Specialty Center from Biscayne Boulevard in accordance with the plans and specifications prepared by Bayside, and the City shall make wNv Lever adjustments of the road surface as are necessary to ensure an even grade, it being the intent of the City and Bayside that the entryway itself shall be constructed to permit the Race Event to occur. (b) Commencing on Monday following the Race Event, the City shall promptly replace or restore the entryway or shall cause it to be replaced or restored to its condition prior to the Race Event in accordance with the original plans and specifications or any modifications thereto which are prepared by Bayside and to complete the same no later than thirty (30) days after the Race Event. (c) Promptly after the Race Event, the City shall remove all tire tracks from road surfaces and sidewalks. Section 5. Failure to Perform and Self -Help. 5.1. Self -Help. If the City at any time during the term of this Agreement, or any extensions thereof shall be of the opinion that the Licensee - 17 - �V� 84-1483 is about to fail to perform any of its obligations under this Agreement, the City may undertake such obligations provided that the City shall give two (2) days prior written notice thereof to Licensee and Bayside. Such notice shall advise Licensee that the City is of the opinion that Licensee is about to fail to perform such obligations and that the City intends to undertake such obligations at the cost and expense of Licensee unless Licensee shall fully comply with same on or before the date and time set forth therefor under this Agreement. Such notice shall further advise Licensee that the City intends to commence such self-help right on the first day following the date on which such obligations should have been satisfied pursuant to the aforesaid schedule. If the City at any time during the term of this Agreement or any extension thereof shall not so advise Licensee and Bayside of its decision to perform any of Licensee's obligations and Licensee shall fail to meet such ablig:3tions, Bayside shall have the right to undertake any or all of the Licensee's obligations provided that two (2) days prior written notice is given to the City and Licensee. If Bayside at any time during the term of this Agreement shall fail to remove the construction debris materials and equipment as provided for in Section 3.3 of this Agreement or to remove the temporary planting structures as provided for under Section 4.2 of this Agreement, the City and Licensee shall each have the right to undertake this obligation of Bayside provided that two (2) days prior written notice is given to Bayside. Notwithstanding the foregoing, if any failures to perform referred to in this Section 5.1 refers to the failure to perform obligations that would impede Licensee's ability to perform in accordance with the time periods provided for in this Agreement or in the approved schedule, or are obligations relating to providing unobstructed pedestrian or vehicular access, or should an emergency situation exist such that it is not practicable in the - 18 - 84-1483 foregoing circumstances for two (2) days prior written notice to be given, then the party exercising its self-help rights shall give written notice as soon as practicable considering the circumstances. 5.2. Obligation of Defaulting Party. Upon the exercise of this right of self-help by either the City or Bayside as granted under this Section 5, the acting party shall be entitled to full reimbursement from Licensee of the cost of performing Licensee's obligations with interest at a rate of two i percent (2%) per annum above the rate charged by CitiBank N.A. of New York to its best commercial customers generally referred to as its prime rate ("Default Rate"). Notwithstanding the foregoing, if Licensee shall fail to perform any of its obligations as aforesaid and the City shall not exercise the self-help rights available to it pursuant to Section 5.1 hereof, Licensee and not the City shall be deemed to be the defaulting party and shall be the party obligated to reimburse Bayside. The right of self-help available to the City and Bayside hereunder against Licensee shall be cumulative and not in limitation of any other rights and remedies of the acting party nor shall such right, if exercised, be deemed to be an election of remedies which is exclusive of any other remedies. Section 6. Indemnification and Insurance. 6.1. Bayside's Right to Inspect. Bayside shall have a right at all reasonable times to inspect the set-up and take -down operations of Licensee and its use of the Parking Garage, so long as the inspection does not interfere with the Race Event. Bayside's right to inspect shall be limited to those operations located within or affecting the Bayside Approval Area. 6.2. Indemnification. Notwithstanding any policy or policies of insurance required of Licensee, Licensee shall indemnify and save harmless Bayside from and against any and all actions, claims or demands, suits at law, - 19 - 84-1483 0 in equity or before administrative tribunals, due to the negligent or intentional acts or omissions of Licensee, its agents, servants, employees, contractors or invitees arising out of the use or occupancy of the Leased Property or Bayside Approval Area by such persons. Licensee shall defend any and all such actions, claims, demands or suits on behalf of Bayside at Licensee's sole cost and expense. Notwithstanding any policy or policies of insurance required of Bayside, Bayside shall indemnify and save harmless Licensee from and against any and all claims or demands, suits at law, in equity or before administrative tribunals, due to the negligent or intentional acts or omissions of Bayside, its agents, servants, employees, or contractors arising out of the use or occupancy of the Leased Property or Bayside Approval Area by such persons. Bayside shall defend any and all such action, claims, demands or suits on behalf of Licensee at Bayside's sole cost and expense. The City shall indemnify and save harmless Bayside from and against any and all claims or demands, suits at law, in equity or before administrative tribunals, due to the negligent or intentional acts or omissions of the City, its agents, servants, employees or contractors arising out of the conducting of the construction and restoration obligations of the City under this Agreement or the License by such persons. 6.3. Licensee's Insurance. In addition to the requirements of the License relating to insurance, Licensee shall obtain and keep in force at all times during the staging of any Race Event, race -supported event or race -associated event, including all set-up and take -down periods, policies of public liability, property damage insurance, products and complete operators' insurance in form and in amounts acceptable to and from an issuer acceptable to Bayside, protecting Bayside, its agents, employees, contractors and invitees against any liability due to death, injury, loss or damage to persons - 20 - 84-1483 or property arising out of or in any way incidental to Licensee's operations. Such policies shall name Bayside, its contractors, subcontractors, agents, tenants and employees as additional insured and shall be endorsed to be primary, noncontributory, and not in excess of any other insurance. Bayside shall provide Licensee with a list of such individuals or entities not less than ninety (90) days prior to any Race Event, race -supported event or race -associated event, and Bayside shall be permitted to update the list two days prior to such events. The standard for such insurance shall be that which would be carried by a reasonably prudent operator of similar events taking into consideration the close proximity of the Bayside Specialty Center and the use of the Parking Garage. The policies shall also be endorsed to state that the additional named insureds are not responsible for the payment of any premiums. 6.4. Certificates of Insurance. Copies of certificates evidencing such insurance coverage shall be delivered by Licensee to Bayside thirty (30) days before the 1985 Race Event, and such certificates shall provide that such insurance coverage will not be cancelled, reduced, modified or amended without at least thirty (30) days' prior written notice to Bayside. At least thirty (30) days prior to the expiration of any such policy, a certificate showing that such insurance coverage has been renewed shall be filed with Bayside. Bayside has the right to review the sufficiency of the insurance policy, as required by this Agreement and to request Licensee to change the insurance coverage to be provided in any policy of insurance as provided for herein to that which would be carried by a reasonably prudent operator of the Race Event, race -supported event or race -associated event taking into consideration the close proximity of the Bayside Specialty Center and the use of the Parking - zl - 84-14 83 Garage. Licensee shall, upon receipt of such request, change the coverage or increase the limits of such insurance to any amount satisfactory to Bayside. 6.5. Bayside's Insurance. Bayside agrees to name Licensee as an additional insured on its public liability insurance policies which are required under the Retail Lease and Parking Garage Lease and to provide Licensee with a copy of certificates evidencing such insurance coverage thirty (30) days prior to the date of the 1986 Race Event. Section 7. Defaults. 7.1. Event of Licensee's Default. (a) Failure of Licensee to perform its obligations under this Agreement within the time periods specified herein or in the approved schedule after notice thereof in writing from the City or Bayside (which notice shall specify the respects in which it is contended that Licensee has failed to perform), unless such default was not caused or created by Licensee and cannot be cured within the time periods specified herein or in the approved schedule and Licensee has commenced and thereafter has contined diligently to prosecute all actions necessary to cure such default, said failure shall constitute an "Event of Licensee's Default". (b) If any Event of Licensee's Default shall occur, the City or Bayside may in addition to their rights under Section 5 of this Agreement, at their options, institute such proceedings at either of them in their individual opinion deem necessary to cure defaults or to compensate them for damages resulting from such default. (c) In addition to the rights and remedies contained in (a) and (b) above, if in any three (3) consecutive years following the opening of the Bayside Specialty Center, Licensee shall commit a material default of its obligations under this Agreement or the License (unless such default shall be - 22 - 84-1483 due to unavoidable delays as provided for in Section 7.4), then, in addition to any other remedies which Bayside may have under this Agreement, Bayside may terminate Licensee's right to use the Leased Property and the improvements thereon (including, without limitation, the Parking Garage) upon thirty (30) days written notice to Licensee. Thereafter the race course must be changed and no activity of Licensee may be conducted on the Leased Property; provided, however, if Licensee operates the Race Event pursuant to this Agreement and the License for three (3) consecutive years following the termination of use by Bayside without committing a material default of its obligations under this Agreement or the License, then Licensee, at its option which shall be exercised by giving Bayside and City ninety (90) days prior written notice, shall.have the right to resume use of the Leased Property and the race course shown on Exhibit B in accordance with this Agreement and the License as if the material default- giving rise to the termination had not occurred. The resumption of the use of the Leased Property shall not limit Bayside's rights and remedies under this subsection (c) in the future. (d) Licensee shall be liable to Bayside for any loss or damage or business interruption incurred by Bayside, its tenants, subtenants, licensees, contractors or agents as a result of any utility service interruptions connected with the Race Event, race -supported event or race -associated event (which utilities shall include but not be limited to, gas, electricity, telephone, storm sewer, sanitary sewer, water and cable television) or as a result of any failure of the Licensee to perform its obligations under this Agreement or the License. Bayside agrees to insert a covenant in its lease or other occupancy agreements with its tenants and licensees using Leased Property that the tenant and licensee acknowledge that the Bayside Specialty Center shall be closed to the general public during the Race Event and that - 23 - 84--1483 i the tenant and licensee agree not to sue Licensee for any loss of business as a result of such closure or as a result of any set-up or take -down activities performed in accordance with this Agreement. 7.2. Event of Bayside's Default. (a) Failure of Bayside to perform its obligations within the time periods specified herein or in the approved schedule after notice thereof in writing from the City or Licensee (which notice shall specify the respects in which it is contended that Bayside has failed to perform), unless such default was not caused or created by Bayside and cannot be cured within the time periods specified herein or in the approved schedule and Bayside has commenced and thereafter has continued diligently to prosecute all actions necessary to cure such actions necessary to cure such default, shall constitute an "Event of Bayside's Default". (b) If an Event of Bayside's Default shall occur, the City or Licensee may in addition to their rights under Section 5 of this Agreement, at their options, institute such proceedings as either the City or Licensee may deem necessary to cure such defaults or to compensate them for damages resulting from such defaults. 7.3. Event of City's Default. (a) Failure of the City to perform its obligations under this Agreement within the time periods specified herein or in the approved schedule after notice thereof in writing from the Bayside or Licensee (which notice shall specify the respects in which it is contended that the City has failed to perform), unless such default was not caused or created by the City and cannot be cured within the time periods specified herein or in the approved schedule and the City has commenced and thereafter has continued diligently to prosecute all actions necessary to cure such actions necessary to cure such default, shall constitute an "Event of City's Default". - 24 - g4-1483 (b) If an Event of City's Default shall occur, Bayside or Licensee may in addition to their rights under Section 5 of this Agreement, at their options, institute such proceedings as either Bayside or Licensee may deem necessary to cure such defaults or to compensate them for damages resulting from such defaults. 7.4. Unavoidable Delay. For the purpose of any of the provisions of this Agreement, neither the City (including the City Manager), nor Licensee, nor Bayside, as the case may be, nor any successor in interest, shall be considered in breach of or in default in any of its obligations under this Agreement, 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 the reasonable cor;�;a1 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 Agreement shall be extended for the period of unavoidable delay; provided, however, that the party seeking the benefit of the provisions of this section shall, as soon as practicable but in no event later than five (5) days after such party shall have become aware of such unavoidable delay, give notice to the other parties thereof in writing of the cause or causes thereof and the time delayed. Section 8. Notices. Any notice, demand, consent, approval, request or other communication or document to be provided hereunder to a party hereto shall be (a) given in writing to the party with a copy to the other party, and (b) deemed to have been delivered or received by the party to whom it is to be provided on the date postmarked after being sent certified or registered mail - 25 - 84-1483 in the United States mails, postage pre -paid, return receipt requested, to the address of such party set forth hereinabove or to such other address in the United States of America as such party may designate from time to time by notice to the other, or (ii) deemed to have been delivered and received (if such party's receipt thereof is acknowledged in writing) on the date actually hand delivered to such party if hand delivered. Section 9. Term of this Agreement. This Agreement shall continue in full force and effect until the earliest to occur of (i) termination of the License, (ii) written agreement of the parties, or (iii) termination of both the Retail Lease and the Parking Garage Lease unless a new lease is entered into in accordance with Sections 6.1 and 6.2 of the Retail Lease or Sections 6.1 and 6.2 of the Parking Garage Lease. Section 10. Estoppel Certificate. 10.1. Form. Each party hereto shall, at any time and from time to time within thirty (30) days after being requested to do so by the other party in writing, execute, enseal and acknowledge, and address and deliver to the requesting party, a certificate in recordable form, certifying (a) that this Agreement is unmodified and in full force and effect (or, if there has been any modification thereof, that it is in full force and effect as so modified, stating therein the nature of such modification); (b) as to whether, to the best of such party's knowledge, information and belief, the requesting party is then in default in performing any of its obligations hereunder (and, if so, specifying the nature of each such default); and (c) as to any other fact or condition reasonably requested by the requesting party. 10.2. Right to Rely. The parties acknowledge and agree that any statement contained in such certificate may be relied upon by the requesting party and any such other addressee. - 26 - 84-1483 Section 11. Amendments and Modifications to the License. The City agrees that the License shall not be amended or modified in any way which would adversely affect Bayside's rights under this Agreement, the Retail Lease or the Parking Garage Lease without Bayside's prior written consent in each instance, it being the purpose and intent of the parties that Bayside be a third party beneficiary of the obligations of the Licensee and the City under the License. In order that Bayside may determine if an amendment or modification would adversely impact Bayside's rights, the City agrees to submit any proposed amendment or modification to Bayside for its information not less than twenty (20) days before its execution. If any modifications to the proposed amendment or modification are made after submission to Bayside, the proposed changes shall be promptly submitted to Bayside. In no event shall any amendment or modification be executed unless Bayside has had at le<3st ten (10) days to review its final form. Section 12. Effective Date of Retail Lease and Parking Garage. The parties acknowledge that the Retail Lease and the Parking Garage Lease contain a provision that these documents are not effective until all exhibits thereto are fully executed and delivered by the City and Bayside. The City, Licensee and Bayside agree that, notwithstanding the fact that all of the exhibits may not have been executed and delivered as of the date of this Agreement, the Retail Lease and Parking Garage Lease shall be deemed to be in full force and effect for the purpose of this Agreement. Section 13. General. 13.1. Effectiveness. This Agreement shall become effective on and only on its execution and delivery by each party hereto. - 27 - 84-JL483 13.2. Purpose of Agreement. This Agreement is intended to supplement the License. in the event of a conflict between the terms and conditions of the License and this Agreement, this Agreement shall control. 13.3. Amendment. This Agreement may be amended by and only by an instrument executed and delivered by each party hereto. 13.4. Waiver. No party hereto shall be deemed to have waived the exercise of any right which it holds hereunder unless such waiver is made expressly and in writing (and, without limiting the generality of the foregoing, no delay or omission by any party hereto in exercising any such right shall be deemed a waiver of its future exercise). No such waiver made in any instance involving the exercise of any such right shall be deemed a waiver as to any other such instance, or any other such right. 13.5. Applicable law. This Agreement shall be given effect and c.o:,trued by application of the law of Florida. 13.6. Time of essence. Time shall be of the essence of this Agreement. 13.7. Exhibits. Each writing or plat referred to herein as being attached hereto as an exhibit or otherwise designated herein as an exhibit hereto is hereby made a part hereof. 13.6. Severability. No determination by any court, governmental or administrative body or agency or otherwise that any provision of this Agreement or any amendment hereof is invalid or unenforceable in any instance shall affect the validity or enforceability of (a) any other provision thereof, or (b) such provision in any circumstance not controlled by such determination. Each such provision shall remain valid and enforceable to the fullest estent allowed by, and shall be construed wherever possible as being consistent with, applicable law. - 28 - 84-1483 13.9. Disclaimer of partnership status. Nothing in the provisions of this Agreement shall be deemed in any way to create between the parties hereto any relationship of partnership, joint venture or association, and -the parties hereto hereby disclaim the existence of any such relationship. 13.10. Successors and Assigns. The Agreement is binding on the parties and their successors or assigns, and to any successor or assign of Licensee's interest in the License. IN WITNESS WHEREOF, the parties hereto cause this Agreement to be executed by their duly authorized representatives the day and year first above written. WITNESS OR ATTEST: ATTESTED: WITNESS: 1689A/Q57A - 29 - MIAMI MOTORSPORTS, INC. a corpora- tion organized and existing under the laws of Florida By. President CITY OF MIAMI, FLORIDA, a municipal corporation of the State of Florida By: City Manager APPROVED AS TO FORM AND CORRECTNESS City Attorney BAYSIDE CENTER LIMITED PARTNERSHIP By: Vice -President Rouse -Miami, Inc., General Partner 84-1483 x" x. x� ° s mc-t . pf- . •-i�i'fAia�r+MUri'i�Yw'i .�,• „p-.i :. MR .� MRT {{IILiT��• jy�. � .' �xi�.ww rrvl.. s• i4 • k. r` �• � a.hrrr �k � r M !!w YM M=I' :. fl Nam 1MCtL ' �►yrA'IL �• M .tV!'Krt y t W- + t+a s � T•f � � • .a!! x: R1r � .MR ' flow N! N �"�"q rig 1 . 1MM M• A Exhibit A woo .1 ji - I 4 4. L t t - � { �Mr�ie y YR♦ � 7 r — BAYSIOE CE"M LIMNTED FAWNEWIP wjr F-M a - 0 10 .+c we•T+ M-641 Exhibit C LICENSEE'S SET-UP AND TAKE-03WN SCHEDULE ACTIVITY A. Barriers, cable, signs and loud speakers along the race course AREA 1 Grand Entrance and Biscayne between entrance AREA 2 Grand Prix Service Drive from 900 angle with Baywalk to the Grand Entrance AREA 3 From Port Blvd. around Parking Garage to Grand Entrance on east side of Biscayne Blvd. AREA 4 Baywalk from fountain to 900 angle with Grand Prix Service Drive AREA 5 Biscayne Blvd. from Flagler Promenade to Grand Entrance AREA 6 Biscayne Blvd. from N.E. 6th ' Street to N.E. 3rd Street AREA 7 Race course south of Flagler Promenade AREA 8 FEC Tract B. Pit Area C. VIP Elevated Boxes D. Temporary Bridges (1) Over Grand Entrance or Area 2 (2) Elsewhere PERIODS) OF TINE IN MHICH ACTIVITY IS PERMITTED Two days prior to Race Event (i.e. Thursday and Friday) Ten days prior to Race Event, but from the tenth through and in- cluding the fourth day prior to the Race Event work must be conducted during the hours that Sayside Specialty Center is closed 10 weekdays prior to 5 week- days prior to the Race Event 2 weeks prior to the Race Event 17 weekdays to 13 weekdays prior to the Race Event 21 weekdays to 17 weekdays prior to the Race Event 8 weeks to 20 weekdays prior to the Race Event 8 weeks to one month prior to the Race Event To be negotiated with the Department of Off -Street Parking but in no event longer than 3 weeks prior to the Race Event 2 weeks prior to Race Event On the weekend prior to the Race Event 6 weeks to one month prior to Race Event (three week take- down schedule) 84-JL483 Y E. Grandstands (1) Adjacent to Areas 1, 2 and 3 (2) Elsewhere F. Scoring and Timing Bridge (1) Over Areas 1, 2, and 3 (2) Elsewhere G. Crowd Control Fence H. - Bio Tens Two weeks prior to Race Event Either leave up from Orange Bowl parade if Race Event is to occur within 70 days of the parade or set-up 45 days prior to the Race Event (25 day take -down schedule) On the weekend two weekends prior to Race Event 4 weeks to two days prior to the Race Event In accordance with Activity A above except as otherwise provided in Agreement 10 days to 5 days prior to Race Event __. (a) All activities referred to in the above schedule must be conducted in accordance with the requirements for pedestrian and vehicular access contained in the Agreement. -(b) Take -down periods for the above activities shall, except as otherwise modified by the terms and provisions of the Agreement, be in accordance with the above set-up schedule unless otherwise indicated above in parentheses. (c) Tne Pit Area may only be located on Biscayne Blvd. between N.E. 1st Street and N.E. 3rd Street. (d) The location of VIP boxes adjacent to Areas 1, 21 3 or 4 shall be subject to Bayside's prior written approval, which shall not be unreasonably withheld. (e) All activities shall be perf ormed starting at the southern end of Area 7 working north and at the northern end of Area 8 A:f working south. 7:1:7: 161A - 2 - 84-IL483 E. Grandstands (1) Adjacent to Areas 1, 2 and 3 (2) Elsewhere Scorino and Timing Bridge (1) Over Areas 1, 2, and 3 (2) Elsewhere Crowd Control Fence H. B10 Tents Two weeks prior to Race Event Either leave up from Orange Bowl parade if Race Event is to occur within 70 days of the parade or set-up 45 days prior to the Race Event (25 day take -down schedule) On the weekend two weekends prior to Race Event 4 weeks to two days prior to the Race Event In accordance with Activity A above except as otherwise provided in Agreement - 10 days to 5 days prior to Race Event (a) All activities referred to in the above schedule must be conducted in accordance with the requirements for pedestrian and vehicular access contained in the Agreement. Take -down periods for the above activities shall, except as otherwise modified by the terms and provisions of the Agreement, be in accordance with the above set-up schedule unless otherwise indicated above in parentheses. (c) The Pit Area may only be located on Biscayne Blvd. between N.E. 1st Street and N.E. 3rd Street. The location of VIP boxes adjacent to Areas 1, 2, 3 or 4 shall be subject to 3ayside's prior written approval, which shall not be unreasonably withheld. All activities Shall be performed starting at the southern end of Area 7 working north and at the northern end of Area 8 working south. 4r1,!!L 0, A F K�'�'' rt rxuY 7w t R .ai'.q j_ y t'h) st y+ '" •� w �' <k xx.K at-i�r-ay„ t-, c 7 ' �,� �. f f'lr) `vt44,a. € •fig :? a 'S -, t _ � ti z �, a .+ E,k : n ?-g �.� d t k:.,t= s t ,• C, -? "�} wpi rc S S y.ta 44 � W. 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 20 Section 2.1. Lease of Leased Property to Developer. . . . . . . 20 a. Premises . . . . . . . . . . . . . . . . . . . 20 b. Original Term . . . . . . . . . . . . . . . . . 21 c. Renewal Term 22 d. Possession of Leased Property. 22 e. Conditions Precedent 24 f. Developer Obligations Prior to Possession. 26 Section 2.2. Restrictive Covenants . . . . . . . . . . . . . . . 26 a. Use Prohibitions of the Leased Property. . . . 27 b. No Discrimination . . . . . . . . . . . . . . . 27 c. Permitted Uses for Leased Property . . . . . . 28 d. Use Prohibitions of the Park Site and Garage Parcel . . . . . . . . . . . . . 29 e. Enforceability . . . . . . . . . . . . . . . . 30 Section 2.3. Easements . . . . . . . . . . . . . . . . . . . . . 31 a. Existing Easements . . . . . . . . . . . . . . 31 b. Easements Granted to Developer . . . . . . . . 31 c. Limitations on Easements Rights, . . . . . . . 33 d. Duration of Easements . . . . . . . . . . . . . 35 e. Confirmatory Instruments . . . . . . . . . . . 35 Section 2.4. Title of Leased Property . . . . . . . . . . . . . 36 Section 2.5. Rental . . . . . . . . . . . . . . . . . . . . . . 36 a. Rentals Payable . . . . . . . . . . . . . . . . 36 b. Continuous Operation . . . . . . . . . . . . . 39 c. Payment of Rental . . . . . . . . . . . . . . . 39 d. Refinancing. 40 e. Developer's Records 41 f. Pre -Construction Contributions . . . . . . . . 43 Section 2.6. Covenants for Payment of Public Charges by Developer . . . . . . . . . . . . . . 45 Section 2.7. Approvals and Consents . . . . . . . . . . . . . . 46 Section 2.8. Security and Police Protection . . . . . . . . . . 46 Section 2.9. City Improvements . . . . . . . . . . . . . . . . . 47 Section 2.10. Condition of Leased Property . . . . . . . . . . . 47 Section 2.11. Roadways and Utilities . . . . . . . . . . . . . . 48 (i) 84-1483 ., 0 TA9LE OF CONTENTS PAGE ARTICLE III - CONSTRUCTION OF IMPROVEMENTS 49 Section 3.1. Conformity of Plans. . . . . . . . . . . . . . . . 49 Section 3.2. Preliminary Plans . . . . . . . . . . . . . . . . . 49 Section 3.3. Construction Plans . . . 51 Section 3.4. Facilities to be Constructed 53 Section 3.5. Maintenance of Park Site and Leased Property 53 Section 3.6. Access . . . . . . . . . . . . . . . . . . . 54 Section 3.7. Construction Period . . . . . . . . . . . . . . . . 54 Section 3.8. Progress of Construction . . . . . . . . . . . . . 55 Section 3.9. Certificate of Final Completion. 56 Section 3.10. Connection of Building to Utilities. 56 Section 3.11. Permits and Approvals . . . . . . . . . . . . . . . 56 Section 3.12. Compliance with Laws . . . . . . . . . . . . . . . 58 Section 3.13. Extension of Time Requirements . . . . . . . . . . 59 Section 3.14. Alterations and Renovations. . . . . . . . . . . . 59 Section 3.15. Art in Public Places . . . . . . . . . . . . . . . 59 ARTICLE IV - LAND USES 60 Section 4.1. Land Uses. 60 Section 4.2. Character and Operation of Improvements. . . . . . 60 ARTICLE V - ANTI -SPECULATION; ASSIGNMENT 61 Section 5.1. Definitions. . . . . . 61 Section 5.2. Purposes of Restrictions on Transfer 63 Section 5.3. Transfers. . . . . . . . . . . 63 Section 5.4. Notice of Transfer; Information as to Shareholders 66 Section 5.5. Effectuation of Certain Permitted Transfers. . . . 67 Section 5.6. Transfers of the City's Interests. . . . . . . . . 68 Section 5.7. Subletting . 69 Section 5.8. Minority participation in ownership. 69 ARTICLE VI - MORTGAGE FINANCING; RIGHTS OF MORTGAGEE 70 Section 6.1. Leasehold Mortgage . . . 70 Section 6.2. No Waiver of Developer's Obligations or City's Rights . . . . . . . . . . . . . . . . 80 ARTICLE VII - REMEDIES 80 Section 7.1. Events of Default - Developer. . . . . . . . . . . 80 a. Failure - Payment of Money . . 80 b. Failure - Performance of Other Covenants, Etc. 80 c. Bankruptcy, etc. . . . . . . . . . . . . . . . 81 (11) 84-1483 s TABLE OF CONTENTS PAGE Section 7.2. Remedies for Developer's Default . . . . . . . . . 82 Section 7.3. Events of Default - City . . . . . . . . . . . . . 82 a. Events of Default . . . . . . . . . . . . . . . 82 b. Remedies for City's Default. . . . . . . . . . 83 Section 7.4. Unavoidable Delay. . . 83 Section 7.5. Obligations, Rights and Remedies Cumulative. 85 ARTICLE VIII - PROTECTION AGAINST MECHANICS' LIENS AND OTHER CLAIMS, INDEMNIFICATION 85 Section 8.1. Mechanics' Liens and Payments of Obligations . . . 85 a. Developer to Discharge Mechanics' Liens. . 85 b. Payment of Materialmen and Suppliers 86 Section 8.2. Indemnity . . . . . . . . . . . . . . . . . . . . . 87 ARTICLE IX - INSURANCE 87 Section 9.1. Insurance Coverage . . . . . . . . . . . . . . . . 87 a. Property Insurance 87 b. Rental Value Insurance 88 c. Automobile Liability Insurance . . . . . . . . 89 d. Liability Insurance. . . . . . . . . . . . . 89 e. Worker's Compensation . . . . . . . . . . . . . 90 f. Copies . . . . . . . . . . . . . . . . . . . . 90 Section 9.2. Responsible Companies - Blanket Insurance Permitted . . . . . . . . . . . . . . . 90 Section 9.3. Named Insureds - Notice to City of Cancellation. 91 Section 9.4. City May Procure Insurance if Developer Fails To Do So . . . . . . . . . . . . . . . . . 91 Section 9.5. Insurance Does Not Waive Developer's Obligations 92 Section 9.6. Loss or Damage Not to Terminate Rental or this Agreement . . . . . . . . . . . . . . . . 92 Section 9.7. Proof of Loss . . . . . . . . . . . . . . . . . . . 92 Section 9.8. Property Insurance Proceeds. . . . . . . . . . . . 92 a. Authorized Payment . . . . . . . . . . . . . . 93 b. Disposition of Insurance Proceeds for Reconstruction . . . . . . . . . . . . . 94 c. Lenders and Lender/Landlords May Have Benefit of Insurance Fund for Reconstruction 94 Section 9.9. Covenant for Commencement and Completion of Reconstruction. . . 95 Section 9.10. Developer's Rights In the Event of Uninsured Major Casualty . . . . . . . . . . . . . . . . . 96 Section 9.11. Casualty to Parking Garage . . . . . . . . . . . . 97 (111) 84-1483 TABLE OF CONTENTS PAGE 98 ARTICLE X - CONDEMNATION Section 10.1. Entire Leased Property Taken by Condemnation Property by Condemnation. 98 99 Section 10.2. Partial Taking of Leased Rent Upon Partial Taking . . . 101 Section 10.3. Section 10.4. Adjustment of Taking for Temporary Use or of Leasehold Estate. 102 3 1010 Section 10.5. Arbitration. . . . . . . . • • • • • ' . ' ' ' ' Section 10.6. Parking Garage Taken by Condemnation . . . . . . . ARTICLE XI - RIGHTS OF OCCUPANCY AND ACCESS; MAINTENANCE; 107 OWNERSHIP OF IMPROVEMENTS Section 11.1. Quiet Enjoyment. . . . . . • • • • • • . ' ' ' ' ' ' ' 107 107 4 Section 11.2. Waste. . . . . and Operation of Improvements. . • • ' 107 Section 11.3. Section 11.4. Maintenance Ownership of Improvements During Lease . • • • . ' 107 107 ` Section 11.5. Surrender of Leased Property . . . . City Developer to Join in Certain Actions. 108 u; Section 11.6. and ARTICLE XII - MISCELLANEOUS PROVISIONS 108 Section 12.1. No Partnership or Joint Venture. 108 108 Section 12.2. Recording, Documentary Stamps. 109 ` Section 12.3. Section 12.4. Florida and Local Laws Prevail . Conflicts of Interest; City Representatives Not Individually Liable. . 110 110 Section 12.5. Notice . . . . . . . . . . . . . . . . . . . . . . . 110 a. Developer . . . . . . . . . . . . . . . 110 b. Developer's Records. . . . . . . . . . . . 1 r . cCity Manager . . . . . . . . . . . . . . . . 111 �}z . Section 12.6. Estoppel Certificates. . . . • • • • • ' . ' ' ' 112 Section 12.7. Provisions Not Merged with Deed. . . . . . . . . . 112 Section 12.8. Titles of Articles and Sections. . • . • • ' ' ' ' 112 Section 12.9. Counterparts . . nd Attornment. . . Section 12.10. Nondisturbance a 112 113 Section 12.11. Non -Discrimination and Equal Opportunity 113 Section 12.12. Successors and Assigns . . . . . . . . . . . . EXHIBITS Exhibit A-1 -- Survey Exhibit A-2 Plat of Bayfront Park Exhibit A-2 -- 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 ( iv) 84-1483 TABLE OF CONTENTS EXHIBITS (con't.) Exhibit C -- Intentionally Deleted Exhibit D -- Form of Guaranty Exhibit E -- Permitted Encumbrances and Easements Exhibit F -- List of Approved Concept Plans Exhibit G -- Development Schedule Exhibit H -- Minority Participation Agreement Exhibit I -- The Design Development Plans for Restaurant in Area A-4 Exhibit J -- Maintenance Responsibility Plan Exhibit K -- Survey Showing All Easements and Utilities Located at the Leased Property 1545F/452A (v) 84-1483 LEASE AGREEMENT THIS LEASE AGREEMENT, made this 5th day of December, 1984, 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. STATEMENT OF BACKGROUND AND PURPOSE i' 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 Dade, 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" ; 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 84-1483 (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 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; (d) A pier park containing (i) 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; - 2 - 84-1483 feet; (e) Reflections Restaurant, containing approximately 250000 square (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") and 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 made: (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. 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 - 3 - 84-1483 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 -- Plat of Bayfront Park 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 Exhibit C -- Intentionally deleted Exhibit D -- Form of Guaranty by The Rouse Company of Columbia, `- Maryland Exhibit E -- Permitted Encumbrances and Easements - 4 - 84-1483 Exhibit �F List of Approved Concept Plans Exhibit G Development Schedule Exhibit H Minority Participation Agreement Exhibit I -- The Design Development Plans for Restaurant in Area A-4 Exhibit J -- Survey 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 Responsibility Site Plan i i Section 1.2 Defined Terms. AS used herein the term: i j "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 5.30). "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. "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). _ 5 _ 84-JL483 . "Arbitration Panel" has the meaning ascribed to it in Section 10.5 "Area q1" "Area A-� ", "Area- � A-3" "Area A-4" and "Area_ A-5" have s, , _ 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. "Bayf rant 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. "Capital Improvements" means any addition to the Project or the construction of any additional portion of the Project or other construction in, upon or constituting part of the Leased 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. _ 6 _ 84-1483 "Arbitration Panel" has the meaning ascribed to it in Section 10.5 ,¢ "Area A-2" , "Area A-3"' "Area A-4" and "Area A-5" have "Are,__ a �`1" ' -- 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 certif ed a 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. r' .. .. "Auditor" means Peat, Marwick, Mitchell & Co. or such other nationally recognized firm of certified public accountants as may be used f rom time to J Ufa time by the Developer for the purpose of certifying the annual reports of its ai ti i y^ financial condition required by law. Such firm of accountants must be a _- member of the so-called "Big Eight" group of Accounting Firms. 4 "Bayfront Park" has the meaning ascribed to it in the Statement of �S v= . a Background and Purpose. "Bayside Specialty Center" has the meaning ascribed to it in the Statement of Background and Purpose. a y_ "Capital Improvements" means any addition to the Project or the construction of any additional portion of the Project or other construction r, 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. _6_ 84-1483 . "Certificate of Final Completion" has the meaning ascribed to it in Section 3.9. "the Cit " 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, lanubudPuu —�������-- -----� - retaining walls, stairways, escalators, elevators, fire corridors, bus stops, first aid stations, comfort stations or restrooms, civic facilities, meeting 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) . - 7 - 84-1483 "Cumulative Credit Balance Account" has the meaning ascribed to it in Section 2.5(a). "Debt Service -Pa yments" 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 Developer Improvements and on borrowing to finance Capital Improvements; provided, however, that in the event of a foreclosure of any Leasehold Mortgage or the conveyance of Developer's estate in the Leased Property and Developer Improvements to the holder of any Leasehold Mortgage (or the nominee of any such holder) by deed in lieu of foreclosure, or in the event of the termination of any lease or sublease arising out of a Sale-Subleaseback Transaction 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 _8_ 84-1483 I t 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; I' (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; - 9 - 84-1483 4 I (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 (1) 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; (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 — 10 - 84-1483 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-Subleaseback Transactions of Developer's estate in the Leased Property and Developer 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 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 Cit '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.l(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 therefore 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. - 11 - 84-1483 t "Final Substructure Plans" has the meaning ascribed to it in Section y 3.3. f "Financing Sublease" has the meaning ascribed to it in the definition of "Sale-Subleaseback Transactiorf'. "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. "Improvements" shall mean all existing and future structures at the Leased Property. "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" has the meaning ascribed to it in Section 6.1. "Lender" shall have the meaning ascribed to it in subclause (b) of Section 6.1. "Lender/Landlord" means a lender, and any successor, assignee, transferee or designee of such lender, to which, in connection with the - 12 - 84-1483 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 Leased Property, which services shall include the following: (i) supervision of the performance of all of Developer's obligations in accordance with the standards of operation and maintenance applicable to a high quality retail development, including without limitation supervision of heating, ventilating, air-conditioning and maintenance of the Leased Property 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 Leased Property; (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 Leased Property, and supervision of the payment of all obligations related to the operation of the Leased Property; (vi) development of programs for the promotion of the Leased Property (including advertising and publicity Programs); (vii) management of the Leased Property, including all normal legal - 13 - 84-1483 i fees, accounting, auditing, transportation and travel salaries, home office expenses of the Developer, The Rouse Company and 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 consumer surveys, legal and other proceedings involving Public Charges, outside CPA audits relating to the Leased Property or Subtenants, plans for minor alteration of the Leased Property, 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 Leased Property, 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 determined 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. - 14 - 84-1483 "On -Site Management _Costs" means that portion of Management Costs 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 public in the Leaseable Area, or (2) the ninetieth day following issuance of the Certificate of Final Completion. "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 the 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 operation, ownership or - 15 - 84-1483 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 Common Area and Leased Property, utility charges, insurance premiums, auditing and professional fees and expenses, publicity costs and expenses (including, without limitation, 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) Annual Basic 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 forefeited. 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 - 16 - 84-1483 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 plus Debt Service Payments for the same period. "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 Improvements described in subparagraphs (a) through (f) in the third paragraph of the Statement of Background and Purpose. "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 - 17 - 84-1483 Property and Improvements, which results in Refinancing Proceeds being available to Developer. "Refinancing Proceeds" means the net proceeds available to Developer out of any Refinancing after deduction of (i) an amount equal to Developer's 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 the 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. 2.10. "Restaurant Facilities" has the meaning ascribed to it in Section - 18 - 84-14 83 "Restaurant Lease" has the meaning ascribed to it in Section 2.10. "Restaurant Parcel" has the meaning ascribed to it in Section 2.10. "Sale-Subleaseback Transaction" means Developer's sale to a Lender/ Landord of all or a substantial portion of Developer's interest in this Lease, and the subsequent execution of a sublease ("Financing Sublease") between Lender/Landord and Developer. "Section", "subsection", "paragraph", "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 entitled to use or occupy any part of the Leased Property or the Improvements under a Sublease. "Tenant Allowance" means those certain improvements to be agreed upon between 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. - 19 - 84-1483 "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 described in the legal descriptions attached hereto as Exhibits B-11 B-2 and B-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. - 20 - 84-1483 "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 described in the legal descriptions attached hereto as Exhibits B-1, B-2 and B-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. 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). 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 feet of Leaseable Area of new construction to which the - Developer shall be entitled upon demolition of the existing Bayfront Municipal Auditorium. The proposed structures within Area A-3 shall not exceed a land area of 2.06 acres. (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 - 21 - 84--1483 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 Dade County setting forth the beginning and termination dates of the Renewal Term, determined in accordance with this Agreement. (d) Possession of Leased Property. The City shall deliver possession of Leased Property 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; - 22 - 84-1483 (ii) The City Manager shall have received and approved the commitment or commitments for the construction and permanent financing of the Developer Improvements to be constructed at the Leased Property, or such other evidence as may be reasonably satisfactory to the City Manager that such financing has been committed or is available which approval shall not be unreasonably withheld. The City Manager must approve such financing if same is on terms prevailing in the then current market place in the United States. Developer may, at its option, self -finance all or a portion of the Developer Improvements provided, however, that Developer 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 in Leased Property; (iv) All governmental permits and approvals required to commence construction 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 to Developer in accordance with this paragraph (d), by notice in writing, is herein called "Possession Date". - 23 - 84t-1483 (e) Conditions precedent. Developer shall not be obligated to take 1 i 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: W 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 Developer Improvements; (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; - 24 - 84-1483 46 (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 ($60100,000), 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 notwith- - 25 - 84-1483 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. (f) Developer Oblioations Prior to Possession. Notwithstanding any- thing herein to the contrary, until possession of the Leased Property 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 obli- gations hereunder with respect to any portion of the Leased Property as to which possession shall not have been so delivered to the extent that such possession shall be reasonably required for the performance of such obligation. 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 - 26 - 84-1483 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, however, 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 Prom 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 (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). - 27 - 84-1483 • 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 a return to the City in excess of 35% of Net Income available for Distribution; (ii) If the City shall desire to authorize the use of any portion of Bayfront Park (other than the Leased Property) for casino gambling purposes, Developer will in good faith negotiate with the City with respect to whether such use of said portion of Bayfront Park would be inconsistent with Developer's use of the Leased Property and Developer's approval of such use shall not be unreasonably withheld. 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. -2a- 84-1483 (c) Permitted Uses for. Leased Property. Except for the limited use by Miami MotorSports, Inc. pursuant to M 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 even date (the "License"), and (ii) an agreement (the "Supplemental Agreement") among Developer, the City and Miami MotorSports, Inc. on even date (the License plus the Supplemental Agreement hereinafter collectively the "Grand Prix Agreement"), the only uses permitted on the Leased Property are retail, recreation, 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 of food or beverages, merchandise, and services customarily found in urban retail centers similar to the Project. (d) 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 Park 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. 29 84-1483 Ti to i (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, (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 (3) 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 under Section 5.6; (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 on the holder, from time to time, of the tenant's estate under the Parking Garage Ground Lease and Developer agrees to look - 30 - 84-1483 solely to such holder 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. (e) Enforceability. it is intended and agreed hereby that the restrictive covenants contained in this Section 2.2 shall be binding upon the City and the Developer, their successors and assigns, and any covenants running with the Land and successors in interest, as the case may be, and shall be for the benefit and in favor of, and enforceable by, the City and Developer respectively, as the case may be; provided, however, that such covenants shall be binding on Developer, and the City, and their respective successors in interest and assigns, only for such period as each shall 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 - 31 - 84-1483 i solely to such holder with respect to the enforcement of its rights hereunder j as same apply to the Garage Parcel provided that the City shall have imposed +' such use restrictions on such party. (e) Enforceability. It is intended and agreed hereby that the restrictive covenants contained in this Section 2.2 shall be binding upon the City and the Developer, their successors and assigns, and any covenants running with the Land and successors in interest, as the case may be, and shall be for the benefit and in favor of, and enforceable by, the City and Developer respectively, as the case may be; provided, however, that such covenants shall be binding on Developer, and the City, and their respective successors in interest and assigns, only for such period as each shall 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 - 31 - 84-1483 as water, gas, electric, and telephone lines and storm and sanitary sewers underground within portions of the Park Site, and any other property owned by 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; (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 (2) 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; - 32 - 84-1483 Q (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; (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; and (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. 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: - 33 - 84-1483 (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 Dade County Water and Sewer Authority, 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 EasemPr` 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. (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 - 34 - 84-1483 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 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. - 35 - 84-1483 Annexed hereto as Exhibit J is a survey 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 deliver such additional documents or instruments confirming the rights and easements granted and reserved in this Section 2.3 or more precisely fixing their location as such requesting party shall deem to be necessary or desirable. 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 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 IWI-10 84-1483 follows: (2) The Minimum Base Rental for each Rental Year, as FULL RENTAL YEARS MINIMUM BASE RENTAL 1-2 $ 325,000 3-6 $ 6509000 7-35 $1,0009000 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 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 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: - 37 - 84-1483 (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 M 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 Mimimum 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 the Possession Date. Such amount when paid by Developer shall be credited to the Commulative Credit Balance Account. Developer and the City further agree that W Developer shall have the right to cause the City to exercise the Removal Option by giving notice in writing to same within forty-five (45) days after each Race Event during the years 1986, 1987 and 1988, inclusive, provided that Developer shall pay to the City $50p000 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 - 38 - 84-1483 during the period that the Bayside Specialty Center shall be 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 shall 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 Cummulative Credit Balance Account. All sums paid by Developer pursuant to this subparagraph 2.5(a)(iv) shall be credited to the Cummulative 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 Bayfront Park. (b) Continuous Operation. Developer covenants and agrees to continuously operate the Project consistent with prudent- business practices and 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 or the Developer shall open such premises to the public for business (the "A-5 Rental Commencement Date"). Annual Basic 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 and the Area A-5 Rental Commencement Date, as the case may be, during the term of this Lease, the first such payment to include also any prorated Annual Basic Rental for the period from the Rent Commencement Date and/or the Area - 39 - 84-1483 A-5 Rental Commencement Date to the first day of the full calendar month thereafter. 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 pursu- ant to the provisions of Section 12.5. Any late payment shall automatically accrue interest at a rate equal to two (2) percent above that rate charged by the Citibank, N.A., of New York to its best commercial customers, generally referred to as its prime rate ("Default Rate") from the date that payment was due. Any overpayment of Annual Basic Rental at the end of each Rental Year 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 shall 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 Leased Property 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: - 40 - 84-1483 rr (i) to participate in such Refinancing, in which case the Developer 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 Service 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 Leased Property 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 the Leased Property 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 - 41 - 84-1483 I 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 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 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 by or for the City, in the event the City's audit was in lieu of a quarterly - 42 - 84-1483 J" 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 shall be retained by the City if this Lease is terminated by reason of an Event of Developer Default. Said payment to 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 fulfillment of the purposes for which the funds are given, as specified below, so long as Developer is not in default under the terms of this Agreement. $1 Million In the form of a letter of credit on terms and conditions and drawn on an Institutional Lender in all respects satisfactory to the City, which shall be delivered on the date this Lease becomes fully effective pursuant to Section 12.9 hereof and shall provide that the City may present same for payment within thirty (30) days next succeeding the Possession Date the proceeds of -43- 84-1483 which shall be utilized by the City in the construction of improvements in Bayfront Park. $2.65 Million To be paid to the City on the Possession Date, such funds to be utilized by the City in acquiring or reimbursing itself in connection with 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 appli- cable), or other occupancy or possessory agree- ments with respect to the Restaurant Parcel shall be deemed deleted. 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 Resolution 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 items to be constructed by Developer and paid for by the Tenant Allowance pursuant to a construction progress schedule to be agreed upon between the City and Developer. - 44 - 84-1483 Notwithstanding the foregoing, Developer shall not be obligated to make the 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, indicating 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 being hereinafter referred to as "Public Charges") levied, assessed or imposed by any public authority against the Leased Property, including all improvements thereon in the same manner and to the same extent as if the same, together with all improvements thereon, were owned in fee simple by Developer; provided, that Developer's obligation to pay and discharge Public Charges levied, assessed or imposed against or with respect to 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 _ 45 - 84-1483 ME 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 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 Maintainance Area on Exhibit J. Developer and City may enter into an agreement requiring the City to provide such security and protection within the Developer Maintenance Area on Exhibit J. 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. _ 46 _ 84-1483 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 and riprap, construction of a bay walk with infill and 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, free of any and all tenancies or other rights or claims of rights to its use and occupancy. Prior to the Possession Date, the Leased Property 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 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 Area A-1 ("Restaurant Parcel") leased under a lease agreement dated May 5, 1970 by and between the City and Restaurant Associates Industries, - 47 - 84-1483 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 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 improvements 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, 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 - 48 - 84-1483 rights of way at the Leased Property within its control. All termination, abandonment, transfer and relocation, as applicable, to be done shall be done or performed in accordance with provisions of this Section 2.11 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 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 W 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 -49- 84-1483 -- PL F -= sufficient detail to show site planning, architectural design and layout, 3 materials, building construction, landscaped design, access, streets, and _ sidewalks. The City acknowledges that, in order to meet the schedule for construction, the Developer shall be submitting Preliminary Plans in stages for approval. The City shall not be required to issue permits or other formal governmental approvals to Developer for a particular phase until the City nm { ti 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. ram, tM a The Preliminary Plans for all stages of the Developer Improvements to 2 ; be 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 ppr�' certain stage of construction, the City Manager shall review the same and r v 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 ,,.,. Y" its reasons for any disapproval. The City Manager's right to disapprove the k =:tv: Preliminary Plans submitted shall be limited to matters depicted in e rC ti r Preliminary Plans for Developer Improvements which do not conform substantially 5-C4CN• 'F k to the Concept Plans or previously approved Preliminary Plans for other stages �� rF of the Project or are new elements not presented in the Concept Plans, or ;t 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, 84-1483 - 50 - 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 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 51- 84-1483 ki } 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 F'. approved Construction Plans for other stages or are new elements not presented r �x in the approved Preliminary Plans or are violations of this Lease or of gov- `� R ernmental ordinances, codes, plans or regulations. If no response from the City is delivered to Developer within fifteen (15) days after the submission ;ys 4 of such Construction Plans, or any resubmission thereof as hereinafter pro- `: 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 h M (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 t` meet the grounds of disapproval. Any resubmission shall be subject to review 4 and approval by the City Manager, in accordance with the procedure hereinabove sion, until the same shall, be approved by the provided for an original submis City Manager, provided, that in any event Developer shall submit all Construc- t ..,..,.._.;., tion Plans for the construction of Developer Improvements which meet all of A F Y� k 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 yk. sputes Kg - City and the Developer shall in good faith attempt to resolve any di r� 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. - sz - 84-1483 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- 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. Section 3.4 Facilities to be Constructed. Developer agrees to erect the Project on the Leased Property, at its sole cost and expense, containing the facilities more particularly described in the Construction Plans which shall conform to the covenants contained in Section 2.2 and which are referred to throughout this Lease as "Developer Improvements". Section 3.5 Maintenance of 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. - 53 - 84-'1483 t F 1 d t i or expense to the City, at all times The Developer, without cost 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 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 or any part thereof to Developer, the City shall permit Developer p Y 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 City Improvements to Developer for review and comment for any City Improvements 84-1483 - 54 - 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 to Developer, and until construction of the Developer Improvements has been completed, Developer shall keep the City Manager apprised of the progress of Developer with respect to such development and construction. During such period the work of Developer shall be available for inspection by a full-time, on -site representative of the City Manager. The Developer shall provide suitable work space and utilities for the representative at Developer's cost. Developer, by executing this Agreement, represents it has visited the site, is familiar with local conditions under which the construction and operation is to be performed, will perform all test borings and subsurface engineering generally required at the site under sound and prudent engineering practices, and will correlate the results of its test borings and subsurface engineering and other available studies and its observations with the requirements of the construction and operation of the Project. The Developer shall restore the site to its original condition after all testing, and shall provide the City with a copy of all results. The City makes no warranty as to subsoil conditions. Developer shall not be entitled to any adjustment of Rental or of any applicable time requirements in the - 55 - 84-1483 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 Campletion. 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 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 Dade County Water and Sewer Authority. Developer shall pay for the additional cost, if any, of locating and installing new facilities for sewer, water, electrical, and other utilities as needed to service the Leased Property. Section 3.11 Permits and Approvals. Developer shall secure and pay for any and all permits and approvals necessary for proper construction and - 56 - 84-1483 1 completion of the Developer Improvements. Developer shall secure any and all permits and approvals required to perform any and all of the work or operations contemplated to be done or performed under any of the provisions of this Agreement including, but not limited to, any alterations and renovations made pursuant to Section 3.14 hereof, and shall pay any and all fees and charges due to and collected by the City in connection with the issuance of any such permits and approvals. If the City Manager's office shall be vacant or if the authority of the City Manager shall change such that the City Manager shall not have the full authority to perform the obligations imposed on that office envisioned under this Lease, then the City shall, promptly upon request of the Developer, designate such other officer or department as may be appropriate to perform the City Manager's obligations. Developer shall secure and pay for any and all permits and approvals necessary for proper construction and completion of the Developer Improvements with the exception of the permits and approvals required 'pursuant to Section 380.06, Florida Statutes 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. 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 - 57 - 84-1483 Developers Agreement pursuant to Rule 96-16.18, 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 wittr governmental staff or officials related to the processing of any of the aforesaid administrative proceedings so that Developer or its representative shall have the option of attending such meetings. Developer agrees to cooperate with the City to the maximum extent possible in these administrative proceedings, including, but not limited to, providing such technical assistance and information as Developer may have reasonably available to contribute to the City's efforts. Section 3.12 Compliance with Laws. Developer will comply in every respect with any and all federal, state, county and municipal laws, ordinances, rules, regulations, orders and notices now or hereafter in force or issued which may be applicable to any and all of the work or operations to be done, performed or carried on by Developer under the provisions of this Agreement including alterations and renovations pursuant to Section 3.15 of this Agreement. Nothing herein shall limit the right of Developer to contest - 58 - 84-1483 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 and sufficient cause shown by the Developer to the reasonable satisfaction of the City Manager. Any such extension of time shall be in writing and in such form as will enable it to be recorded among the Land Records of Dade County. Section 3.14 Alterations and Renovations. After the completion of construction of the Developer Improvements, Developer from time to time may make such alterations or renovations thereof as it shall deem desirable, 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 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) - 59 - 84-1483 for art in the public areas of the Leased Property. In addition, Sixty Thousand and No/100ths Dollars ($60,000.00) 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 (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 Improvements will be used and operated, Developer agrees that at all times during the term of this Lease, Developer will use its diligent efforts to operate the Leased Property as a first class Waterfront Specialty Center and to maintain a level of quality of character and operation of the Improvements which is comparable to the level of quality of character and operation, at the time of execution and delivery of this Lease, to Harborp lace in Baltimore. - 60 - 84--1483 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 of the improvements required herein; and it will use all reasonable efforts to enforce such rules and regulations. Notwithstanding the foregoing, Developer shall be bound by t he 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 Leased Property. ARTICLE V ANTI -SPECULATION' ASSIGNMENT Section 5.1 Definitions. As used herein, the term: (a) "Transfer" means: W any total or partial sale, assignment or conveyance (other than by a Leasehold Mortgage or Financing Sublease) or any trust or power, or any transfer in any other mode or form of or with respect to this Lease or of the leasehold estate in the Leased Property or any part thereof or any interest therein, or any contract or agreement to do any of the same; (ii) any transfer of the stock of the General Partner of Developer or of any Owner, other than an Owner whose shares are publicly traded; or (iii) any merger, consolidation or sale or lease of all or Developer or of any Owner, other than substantially all of the assets of an owner whose shares are publicly traded. 84-1483 - 61 - (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, f irm, corporation or other entity which owns, directly or indirectly, legally or beneficially, one percent (1%) or more of the stock of the General Partner of Developer (excluding any shareholder of an Owner whose shares are publicly traded) or other form of ownership interest of the Developer; and (ii) any person, firm, corporation or other entity which owns, directly or indirectly, legally or beneficially, more than fifty percent (50%) of the stock of the General Partner of Developer or other form of ownership interest of any entity described in clause (i) or this clause (ii), but shall not include any shareholder of an Owner whose shares are publicly traded. (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 shares of any class of its voting stock or of all classes of any other form of ownership interest which includes voting rights; and (ii) whose voting stock and other form of ownership interest described in clause (i) is listed for trading purposes on a securities exchange subject to the regulatory jurisdiction of the Securities & Exchange Commission (or its successor) or is publicly traded over the counter. - 62 - s4-1483 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. Section 5.3. Transfers. Developer, on behalf of itself and any and all Owners, represents and warrants that neither Developer nor any Owner has made, created or suffered any Transfers. Except as permitted pursuant to subparagraphs (a) through (i) hereof, no Transfer may be made, suffered or created by Developer or any Owner. The following Transfers shall be permitted hereunder: - 63 - 84-1483 (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/ Landlord of the Developer's interest provided that such. Transferee, within thirty (30) days after taking possession of the Project, shall have enterQ- into an Acceptable Operator's Agreement as described in Subsection VI(c)(iv) of this Agreement. (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 84-1483 - 64 - 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 American or a Hispanic American immediately after such Transfer, which is consented to by the City Manager and City Cortmission, which consent may not be unreasonably withheld. (h) Any Transfer resulting from the death or disolution of an Owner provided that same does not result in the disolution or termination of Devel- oper or any general partner of Developer. - 65 - 84-1483 (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. 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 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 - 66 - 84--1483 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 (A) or more ownership interest in Developer or by such other knowledge or information as either of such officers shall have. Notwithstanding the foregoing, the information required by this subparagraph (b) shall not be required to be furnished with respect to the shareholders of any owner whose shares are publicly traded. Section 5.5. Effectuation of Certain Permitted Transfers. No Transfer of the nature described in subsections (d) and (e) of section 5.3 shall be effective unless and until the entity to which such Transfer is made, by instrument in writing satisfactory to the City Manager and in form recordable among the land records, shall, for itself and its successors and assigns, and especially for the benefit of the City, expressly assume all of the obligations of Developer under this Lease and agree to be subject to all conditions and restrictions to which Developer is subject; provided, however, that any Lender, Leasehold Mortgagee, Lender/ Landlord transferee shall not be required to assume any personal liability under this Lease with respect to any matter arising prior or subsequent to the period of such transferee's actual ownership of the leasehold estate created by this Lease (it being understood, nevertheless, that the absence of any such 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 - 67 - 84-1483 such transferee of, or any other successor in interest whatsoever to, the leasehold estate in the Leased Property or the Improvements, or any part thereof] shall whatever the reason, not assume such obligations or so agree, shall not (unless and only to the extent otherwise specifically provided in this Lease or agreed to in writing by the City) relieve or accept such - e_1 rr%accnr of or from such obligations, conditions or restrictions, or deprive or limit the City of or with respect to any rights, remedies or controls with respect to the leasehold estate in the Leased Property or the construction of the construction of the Improvements. Section 5.6. Transfers of the City's Interests. The City represents and agrees for itself, its successors and assigns, that the City has not made or created and that it will not, during the term of this Lease, make or create or suffer to be made or created any total or partial sale, assignment, conveyance, mortgage, trust or power, or other transfer in any mode or form of or with respect to the City's reversionary interest in the Leased Property or any part thereof or any interest therein or any contract or agreement to do any of the same, to any purchaser, assignee, mortgagee or trustee unless such purchaser, assignee, mortgagee or trustee shall have the authority and the ability, in the Developer's opinion, to assume the obligations of the City under this Lease and the purchaser, assignee, mortgagee or trustee shall expressly agree to assume the obligations of the City under this Lease, in a form satisfactory to Developer and any Leasehold Mortgagee. Notwithstanding any such transfer and assumption, the City shall not be released from its obligations pursuant to Sections 2.8 and 3.5, which obligations are personal to the City and shall remain in effect during the term of this Lease. - 68 - 84-1483 Section 5.7. Subletting. At the City's request, Developer shall provide to the City a copy of all Subleases for the Project. Developer shall incorporate in all Subleases provisions concerning rentals and expenses that are compatible with the Annual Base Rental formula in this Agreement. Developer shall have the right, to enter into Subleases of any part of the Leased Property or Improvements at any time and from time to time during the term of this Lease with such Subtenants and upon such commercially reasonable terms and conditions as Developer shall, in its sole discretion, deem fit and proper, provided, however, that Developer shall not enter into any Sublease with any Subtenant which does not deal with Developer at arm's length without first obtaining the City's approval, which approval the City may in its sole discretion withhold. If Developer shall contemplate making any Sublease with respect to which the City's approval is required pursuant to the foregoing sentence, Developer shall submit to the City a copy of such proposed Sublease together with any information concerning the identity of the Subtenant as the City may reasonably request. Within 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 percent (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 -69- 84-1483 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. ARTICLE VI MORTGAGE FINANCING RIGHTS OF MORTGAGEE Section 6.1. Leasehold Mortgage. (a) Notwithstanding the provisions set forth in Article V hereof regarding any Assignment of this Lease, but subject to the provisions of this Article VI, provided that an Event of Default has not occurred and is not continuing, Developer shall have the right at any time and from time to time to encumber the leasehold estate created by this Lease and any improvements L. Mortgage, Sale-Subleaseback transaction, deed of trust or other security instrument, including, without limitation, an assignment of the rents, issues and profits from the Project to secure repayment of a loan or loans (and associated obligations) made to Developer by an Institutional Investor (as defined below) for the sole purpose of securing the financing of the construction of any Developer Improvements made pursuant to the terms of this Lease or for the long-term financing or refinancing of any such Improvements. In no event may the amount of such financing or refinancing exceed Develupment Costs. Developer shall deliver to City promptly after execution by Developer a true and verified copy of any Leasehold Mortgage (as defined below), or any Financing Sublease and any amendment, modification or extension thereof, together with the name and address of the owner and holder thereof. Developer may not encumber the leasehold estate created by this Lease as security for - 70 - 84-1483 any indebtedness of Developer with respect to any other property now or hereinafter owned by Developer and/or The Rouse Company except that Developer may so encumber same as additional security for a loan or loans granted to Developer in connection with the Parking Garage. (b) For purposes of this Article VI: "Institutional Investor" shall mean any national bank organized under the laws of the United States or any commercial bank, or any savings and loan association, savings bank, trust company or insurance company organized under the laws of the United States or any state of the United States, or any pension, retirement or welfare trust or fund supervised by a government authority of any state or the United States or any such trust or fund administered by an entity which is supervised by a governmental authority; "Leasehold Mortgage" shall mean a mortgage, deed of trust or assignment of the rents, issues and profits from the Project, which constitutes a lien on the leasehold estate created by this Lease and on the fee interest of Developer in any Improvements during the term of this Lease; and "Lender" 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: - 71 - 84-1483 (i) The City shall not agree to any mutual termination nor accept any surrender of this Lease (except upon the expiration of the full term of this Lease) nor shall the City consent to any material amendment or modification of this Lease or waive any rights or consents it may be entitled to pursuant to the terms hereof, without the prior written consent of Lender. (ii) Notwithstanding any default by Developer in the performance or observance of any covenant, condition or agreement of this Lease on the part of Developer to be performed or observed, the City shall have no right to terminate this Lease even though an Event of Default under this Lease shall have occurred and be continuing, unless and until the City Manager shall have given Lender written notice of such Event of Default and Lender shall have failed to remedy such default or to acquire Developer's lease- hold 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 prevent the termination of this Lease. All payments so made and all .. 72 r 84-1483 things so done and performed by Lender shall be as effective to prevent a termination of this Lease as the same would have been if made, done and performed by Developer instead of by Lender. (iv) Should any Event of Default under this Lease occur, Lender shall have sixty (60) days after receipt of notice from the City Manager setting forth the nature of such Event of Default, to remedy same and, if the default is such that possession of the Project may be reasonably necessary to remedy the default, Lender shall, within such sixty (60) day period, 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, (b) Lender shall within six (6) months of the date that it takes possession of the Leased Property enter into an agreement on terms and conditions reasonably acceptable to the City with an Acceptable Operator for the continued operation of the Project (hereinafter called "Acceptable Operator's Agreement"), and (c) Lender shall have acquired Developer's leasehold estate created hereby or commenced foreclosure or other appropriate proceedings in the nature thereof within such sixty (60) day period or prior thereto, and shall be diligently and continuously prosecuting any such proceedings to completion. All rights of the City Manager to terminate this Lease as the result of the occurrence of any such Event of Default shall be subject to and conditioned upon the City Manager having first given Lender written notice of such Event of Default 73 " 84--1483 and Lender having failed to remedy such default or acquire Developer's leasehold estate created hereby or commence foreclosure or other appropriate proceedings in the nature thereof as set forth in and within the time period specified by this subparagraph (iv). (v) An Event of Default under this Lease which in the nature thereof cannot be remedied by Lender shall be deemed to be remedied if (a) within sixty (60) days after receiving written notice from the City Manager setting forth the nature of such Event of Default, Lender shall have acquired Developer's leasehold estate created hereby or commenced foreclosure or other appropriate proceedings in the nature thereof, (b) Lender shall diligently and continuously prosecute any such proceedings to completion, (c) Lender shall have fully cured any default in the payment of any monetary obligations of Developer under this Lease 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 a Lender shall not tie bound by the provisions of Section 5.8 hereof. Notwithstanding the foregoing, the City agrees that Lender shall not be obligated to complete construction of the Developer Improvements if Lender shall succeed to Developers estate under this Lease. Any assignee or successor in interest to a Lender that has taken possession of the Leased Property must, however, assume all of Developer's ` 74 - 84-1483 obligations hereunder (except as set forth in Section 5.8 hereof), including, but not limited to, the construction obligation. (vi) If the Lender is prohibited by any process or injunction issued by any court or by reason of any action by any court having jurisdiction of any bankruptcy, debtor rehabilitation or insolvency proceedings involving Developer from commencing or prosecuting foreclosure or other appropriate proceedings in the nature thereof, the times specified in subparagraphs (iv) and (v) above for commencing or prosecuting such foreclosure or other proceedings shall be extended for the period of such prohibition; provided that Lender shall have fully cured any default in the payment of any monetary obligations of Developer under this Lease and shall continue to pay currently such monetary obligations as and when the same fall due, and provided that Lender shall diligently attempt to remove any such prohibition. At any time that a Lender is in possession of the Leased Property pursuant to the terms hereof and at all times .areafter 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 (35%) percent of Net Income Available for Distribution. (vii) The City Manager shall mail to Lenoer a duplicate copy by certified mail of any and all notices which the City may from time to time give to or serve upon Developer pursuant to the provisions of this Lease; and no notice by the City Manager to Developer hereunder shall be deemed to have been given unless and until a copy thereof has been mailed to Lender. - 75 - 84-1483 (viii) Foreclosure of a Leasehold Mortgage or any sale thereunder, whether by judicial proceedings or by virtue of any power of sale contained in the Leasehold Mortgage, or any conveyance of the leasehold estate created hereby from Developer to Lender by virtue or in lieu of the foreclosure or other appropriate proceedings in the nature thereof, shall not require the consent of the City or constitute a breach of any provision of or a default under this Lease. Upon such foreclosure, sale or conveyance, the City shall recognize Lender, or any other foreclosure sale purchaser, as tenant hereunder except that all obligations on Developer herein contained shall be binding on the Lender only from and after the date that it shall take title to the Developer's leasehold estate unless otherwise in this Article VI provided; roe vided, that Lender or any such foreclosure sale purchaser 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 after acyui':ing the same by foreclosure or by an acceptance of a deed in lieu of foreclosure or subsequently assigns or transfers its interest under any such new lease, and in connection with any such assignment or transfer Lender takes back a mortgage or deed of trust encumbering such leasehold interest to secure a portion of the purchase price given Leasehold Mortgage as 76— 84-1483 contemplated under this Section 6.1, Lender shall be entitled to receive the benefit of this Article VI and any other provisions of this Lease intended for the benefit of the holder of a Leasehold Mortgage. Any person or entity to whom this Lease or any such new lease is assigned must either enter into or assume Lender's obligations under an Acceptable Operator's Agreement. (ix) Should the City terminate this Lease by reason of any default by Developer hereunder, the City Manager shall give notice thereof to all Leasehold Mortgagees and the City Manager 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 Project to Lender for the remainder of the term of this Lease with the same ' covenants, conditions and agreements (except for any requirements which have been satisfied by Developer prior to termination) as are contained herein, provided, however, that the City's execution and delivery of such I new lease of the Project shall be made without representation or warranty of any kind or nature whatsoever, either express or implied, including \ f t without limitation, any representation or warranty regarding title to the k� 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 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 - 77 - 84-1483 Leased Property were not the subject of a Lease). Upon execution and delivery of such new lease, Lender at its sole cost and expense, shall be responsible for taking such action as shall be necessary to cancel and discharge this Lease and to remove Developer named herein and any other occupant (other than as allowed by the City) from the Project. The City's obligation to enter into such new lease of the Leased Property with the Lender shall be conditioned upon Lender having remedied and cured all monetary defaults hereunder and having remedied and cured or has commenced and is diligently completing the cure of all non -monetary defaults of Developer susceptible to cure by any party other than by Developer. If the City receives written requests in accordance with the provisions of this Section 6.1(ix) from more than one Leasehold Mortgagee, the City shall only be required to deliver the new lease to the Leasehold Mortgagee who is, among those Leasehold Mortgagees requesting a new lease, the holder of the most junior Leasehold Mortgage, provided that such Leasehold Mortgagee shall, not later than the execution of such new lease, either (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 Leasehold Mortgagee, 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 Leasehold Mortgagee with the same relative priority as existed prior to the termination of this Lease. If any Leasehold Mortgage having the right to a new lease pursuant to this Section 6.1(ix) shall elect to enter into a new lease but shall fail to do so or shall fail to take the action required above, the City shall so notify all other Leasehold Mortgagees (if any) and shall afford such other Leasehold Mortgagee a period of sixty -7884-1483 (60) days from such notice within which to elect to obtain a new lease in accordance with the provisions of this Section. Except for any liens reinstated pursuant to this Section, any new lease entered into pursuant to this section shall be prior to any mortgage or other lien, charge or encumbrance on the fee of the Leased Property or the improvements and shall have the same relative priority in time and in right as this Lease and shall have the benefit of all of the right, title, powers and privileges of Developer hereunder in and to the Leased Property and the Developer Improvements. At Developer's request, the City will enter into an agree- ment with any Leasehold Mortgage granting to the Leasehold Mortgagee the rights set forth in this Article. If such new lease is entered into pur- suant hereto, the Lender shall be entitled to offset from the previous rentals due the City under this Lease, the net operating profit, if any, made by the City during the period that the City shall have operated the Project. (x) City and Developer shall cooperate in including in this Lease by suitable amendment from time to time any provision which may be requested by any proposed Lender, or may otherwise be reasonably necessary, to implement the provisions of this Article VI; provided, however, that any such amendment shall not in any way affect the term hereby demised nor affect adversely in any material respect any rights the City under this Lease. (xi) All rights and benefits afforded to a Leasehold Mortgagee hereunder shall also be afforded to a party providing financing to Developer pursuant to a Financing Sublease. - 79 - 84-1483 Section 6,2. No Waiver of Developer's Obligatin s or City'_s Rights. Nothing contained herein or in any Leasehold Mortgage shall be deemed or construed to relieve Developer from the full and faithful observance and performance of its covenants, conditions and agreements contained herein, or from any liability 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": (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 - 80 - 84-1483 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 Tenant, as debtor, seeking relief (or instituting a case) under Chapters 7, 99 11 or 13 of the Bankruptcy Code of 1978, 11 U.S.C. (Sec. 10 et seq.) or any successor thereto; or 2. if Tenant 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 Tenant's property; or 3. if the leasehold interest of Tenant is levied upon or attached by process of law; or 4. if Tenant 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 Tenant to declare Tenant 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 Tenant or its property; or - 81- 84-1483 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 IN; within said sixty (60) day period shall have commenced and thereafter shall have continued diligently to prosecute all actions necessary to cure such �ra`` default, said failure shall constitute an Event of the Developer's Default. !k Bankruptcy, etc. 1. if an order or relief shall be entered upon any petition filed by or against Tenant, as debtor, seeking relief (or instituting a case) under Chapters 7, 99 11 or 13 of the Bankruptcy Code of 1978, 11 U.S.C. (Sec. 10 et seq.) or any successor thereto; or 2. if Tenant admits its inability to pay its debts, or if a * receiver, trustee or other court appointee is appointed for all or a , PP PP substantial part of Tenant's property; or 3. if the leasehold interest of Tenant is levied upon or attached by process of law; or 4. if Tenant 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 Tenant to declare Tenant 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 Tenant or its property; or - 81- 84-1483 6. if Tenant shall abandon the Leased Property during the term of this Lease or any renewals or extensions thereof; or 7. if Tenant 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 Leased Property to the City in accordance with Section 11.5. Upon the termination of this Lease, as provided in this Section 7.2, all rights and interest of the Developer in and to the Leased Property and every part thereof shall cease and terminate and the City may, in addition to any other rights and remedies it may have, retain all sums paid to it by the Developer under this Lease. 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 - e2 - 84-1483 r 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; (ii) the right to a writ of mandamus, injunction or other similar relief, available to it under Florida law against the City (including any or all of the members of its governing body, and its officers, agents or representative) provided, however, that in no event shall any member of such governing body or any of its officers, agents or representatives be personally liable for any of the City's obligations to Developer hereunder; (iii) the right to maintain any and all actions at law or suits in equity or other proper proceedings to obtain damages resulting from such default. Section 7.4. 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 - 83 - 84-1483 s 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 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 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. - 84 - 84-1483 Section 7.5. Obligations, Rights and Remedies Cumulative. The w� r 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 L M ' or more of such remedies shall not preclude the exercise by it, at the r� any one different times, of any other such remedies for the same default or � same or =r 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 time thereof, of any obligation of the other party or any condition to its f or obligation under this Agreement shall be considered a waiver of any rights own } 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 xk' 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 8.1. Mechanics' Liens and Payments of Obligations. i (a) Developer to Discharge Mechanics' Liens. Developer shall not be given possession of the Leased Property or authorized to begin construction thereon prior to the recording of this Lease and prior to Possession Date so as not to subject the Pee 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. - 85 - 84-1483 RIN2E 711111111 Upon Developer's failure so to do, the City, in addition to any other right or remedy that it may have, may take such action as may be reasonably necessary to protect its interest, and Developer shall pay any amount paid by the City in connection with such action, and all reasonable legal and other costs and expenses incurred by the City in connection therewith (including reasonable counsel fees, court costs and other necessary disbursements). Any such amounts paid by the City and the amount of any such expenses or costs incurred by the City, if not paid by Developer to the City within thirty (30) days after the date Developer receives written notice from the City of the amount thereof and demand for payment of the same, shall, together with interest thereon at the Default Rate from the date of the receipt by Developer of the aforesaid written notice and demand to the date of payment thereof by Developer, be treated as Additional Rental, and shall be payable by Developer to the City not later than the next monthly installment of the Annual Basic Rental becoming due. (b) Payment of Materialmen and 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. - 86 - 84-1483 Section 8.2. Indemnity. Notwithstanding any policy or policies of insurance required of Developer, Developer shall indemnify and save harmless the City from and against any and all actions, claims or demands, suits at law, in equity or before administrative tribunals, due to the negligence of Developer, its agents, servants, employees or contractors arising out of the use or occupancy of the Leased Property by such persons. Developer shall defend any and all such actions, claims, demands or suits on 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. 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 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 - 87 - 84-1483 policies shall contain an agreed amount endorsement. During the construction period, property insurance may be provided on a Completed Value Builder's Risk form. The City and Developer shall be listed as named insureds on such Builder's Risk Policy. The term "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 damaged Improvements to substantially their previous condition before an insurable loss occurred, and the cause of the deficiency in insurance proceeds is the failure of the Developer to adequately insure the Improvements as required by this Agreement, Developer must nevertheless rebuild and restore 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 t Insurance policy during the period required to rebuild, repair or replace the property damaged, which policy or policies of insurance shall expressly provide y3 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 - 88 - 84-1483 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 g shall not constitute an approval or acceptance of the amount �y of insurance coverage. (c) Automobile Liability Insurance. Automobile liability insurance and equivalent policy forms covering all owned, non -owned, and hired vehicles v % �TA ai G4 `' 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 $190009000 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 ' royal or acceptance of the amount of insurance coverage. constitute an app (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, 7.f 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 s of $10,000,000 per occurrence. The adequacy of the liability insurance TtF..IyTfl. �% �- coverage shall be reviewed every five years by the City Manager. Any review approval or acceptance of the by the City Manager shall not constitute an amount of insurance coverage. Such liability and property damage insurance a shall also be placed in effect during the period of permitted access provided in Section 3.8 herein. 89 E It is the City's intent that any liability insurance provided pursuant to this Section shall be deemed primary insurance coverage in the event of any loss arising from the premises and operations covered by this Agreement. (e) Worker's Compensation. Worker's Compensation and Employer's Liability Insurance in compliance with Florida Statute 440. For work that is subcontracted, the Developer shall require the subcontractor to provide Worker's Compensation insurance for all of the subcontractor's employees. (e) Copies. Developer shall furnish Certificates of Insurance with the City named as additional insured for the coverages specified hereunder which shall clearly indicate that Developer has obtained insurance in the type, amount and 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 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 Alfred M. Best Co., Inc., 75 Fulton Street, New York, NY. The insurance required by this Article may be part of another policy or policies of the - 90 - 84-1483 Developer in which other properties and locations are also covered so long as 8, the amount of insurance available to pay losses at this location is at least w". the minimum required by this Section, and it cannot be reduced in any manner by losses occurring at other properties or locations. �•, � , f Section 9.3. Named Insureds - Notice to City of Cancellation. All f of insurance described herein shall name Developer and the City as policies insureds as their respective interests may appear. The policies shall also f L t 5 insured, if required by either party or required pursuant to the terms, x name as Leasehold Mortgage or Financing Sublease, any Leasehold Mortgagee as the of any interest of any such Leasehold Mortgagee may appear. Notwithstanding any such inclusion, the parties hereto agree that any losses under such policy shall sF � be payable, and all insurance proceeds recovered thereunder shall be applied w and disbursed in accordance with the provisions of this Lease. All insuranK-- ' policies shall provide that no material change, cancellation or termination shall be effective until at least thirty (30) days after receipt of written r 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 t the obligation of the insurer to pay the full amount of any loss sustained. 3 •, t Section 9.4. City May Procure Insurance if Developer Fails to Do a So. In the event Developer at any time refuses, neglects or fails to secure Cµ �"• 4iiT'V 1 �� 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 f all amounts of money paid therefore by the City shal e insurance, and - rY1 treated as Additional Rental payable by Developer to the City together with interest thereon at the Default Rate f rom the date the same were paid by the 3> thereof by Developer. City to the date of payment The City shall notify - 91- 84--IL483 such payments dates purposes and amounts of any eloper in writing of theableby Developer to the City within ten (10) Dev a made by it, which shall be P Y f such notification. w ive Developer s Obli ations. No days o Does Not a 9.5. insurance agreements by the City or Section agreement or 9 insurance 9 relieve or acceptance or approval of any or be construed to relieve or release d bY9 or the City Manager shall obligation assure from any liability, duty or release Developer Agreement* the provisions of thisRental or this imposed upon it by Not To Terminate 9.6. Loss or Dama a of the Section of or to any loss or damage by fire or other casualty, not operate to Aar reement. Any Property at any time, shall the Leased the payment improvementson Developer from or to relieve or dischargeas Additional Rent terminate this Agreement to be treated of any money due and the payment become of Rental, or from as the same may Pursuant to this Agreement, and in respect thereto, P A regiment, or from the performance as provided in this 9 A reement. payable, obligations pursuant to this 9 nt of any of Developer's Improvements, or any Part fulfillment whenever any section 9.7. Proof of Loss. any personal property Leased Property (including constructed on the or destroyed, thereof, the premises) shall have been damaged, loss in accordance with the terms Of furnished or installed in er shall promptly make proof of 1 Develop ed promptly to collect or cause to be the insurance Policies and shall Prose have arisen against insurers or others Developer shall promptly give City collected+ all valid claims which may based upon any such damage or destruction, ten notice of such damage or destruction- writ Insurance Proceeds. section 9.8• Pr girt - 92 - (a) Authorized Payment. Except as otherwise provided in subsection (c) of this Section 9.89 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 $500,000•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. (ii) To the Insurance Trustee, if the total recovery is in excess of W09000.00, 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 - 93 - 84--1.483 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) Di of Insurance Proceeds for Reconstruction. All �. _position amounts received upon such policies shall be used, to the extent required, or the reconstruction, repair or replacement of the Improvements and the personal r_r property of Developer contained therein, so that the Improvements or suc . personal property shall be restored to a condition comparable to the condition prior to the loss or damage (hereinafter referred to as "Reconstruction Work"). From the Insurance proceeds received by the Insurance Trustee, there shall be disbursed to Developer such amounts as are required for the Reconstruction Work. Developer shall submit invoices or proof of payment to :,.. the Trustee for payment or reimbursement in accordance with an agreed schedule of values approved in advance by the City Manager. Any amount remaining in the hands of the Insurance Trustee after the _ completion of the Reconstruction Work shall be paid to Developer. (c) Lenders and Lender/Landlords May Have Senefit of Insurance Fund °F for Reconstruction. In the event Developer, pursuant to any Leasehold s Mortgage e or Financing Sublease, shall at any time authorize the Lenders or 9 fi 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 4 ,ci building on the Leased Property damaged or destroyed by fire, or other a�ri> insured -against hazard or peril and to have and receive for Developer or Leasehold Mortgagees' use for such purpose such insurance proceeds, then in ''. that case said insurance proceeds shall be equally available to such Leasehold to Developer as provided in subsection (b) of this Section 9.8, Mortgagee as - 94 - 54-IL483 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 9.10, Developer covenants and agrees to commence the Reconstruction Work as soon as practicable but in any event within six (6) months after the insurance proceeds in respect of the destroyed or damaged Improvements or personalty have been received, and to fully complete such Reconstruction Work as expeditiously as possible consistent with the nature of the damage, but in any event within eighteen (18) months from the start thereof; provided, that if it is not practicable to commence such Reconstruction Work within such six (6) month period, or to complete such Reconstruction Work within such eighteen (18) month period, then such Reconstruction Work may be commenced and completed within a longer period, provided that such period shall be approved in writing by the City Manager after written request f rom.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 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. - 95 - I Section 9.10. Devel er's_Ri hts in the Event of Uninsured Ma or -_ Casualt . In the event any part of the Improvements or the Leased Property is ason of any casualty which damaged or destroyed by re is not required to be y u� insured against pursuant to Section 9.1 and is not in f act insured against, k'> tion + in lieu of rebuilding, replacing or repairing the , } then at Developer's op portion of the Improvements or the Leased Property so damaged or destroye , 60 days after the within sixty ( ) give notice to the City, Developer may �I tY such damage or destruction, of Developer's election to terminate -, occurrence of so this Lease as to the portion of the Improvements or the Leased Property damaged or destroyed and this Lease shall thereupon terminate as to such C and Developer shall have no further obligation portion of the Leased Property City shall so request hereunder with respect thereto, except that, if the Developer shall, at its within thirty (30) days after such notice is given, rovements situated on the 4 r tl demolish any buildings or other imp expense, p �P Y sed Property as to which this Lease shall have portion of the Leabeen grade such portion of the terminated and shall clear and Leased Property. The aI r t at the request of either, execute such instruments } City and Developer shall, desirable in order to amend or documents as may be reasonably necessary or 1s� from the description _; r..,,_. this Lease to delete such portion of the Leased Property dmr of the property demised hereby. If the Improvements or the Leased Property t proceeds, shall be or for which there were no insurance p + which were uninsured, strayed in any substantially damaged or de single casualty so that the Improvements or the Leased Property shall be unsuitable for restoration or Developer's continued use and occupancy in Developer's business, then at tion, in lieu of rebuilding, replacing or repairing the Developers op s provided in this Lease, Developer may Improvements or the Leased Property a - 96 - give notice to the CitY9 within sixty (60) days after the occurrence of such tion, of Developer's intention to terminate this Lease on any damage or destruc 60 nor business day specified in such notice which occurs not less than sixty ndred twenty (120) days after the date of such damage or more than one hu anied by a certificate destruction, provided that such notice shall be accomp he Developer, signed by the appropriate officer or general partner, stating of t the Improvements and the Leased that in the reasonable judgment of Developer' Developer's continued use and Property are economically unsuitable for occupancy by rea son of such damage or destruction. This Lease shall thereupon except with respect to obligations and terminate on such termination date, se actual or contingent, which have liabilities of Developer under this Lea , . Upon giving any arisen on or prior to such date such notice of termination hall upon the City's request at Developer's expense, of this Lease Developer shall, por other remaining improvement promptly demolish any building and shall clear and grade the Leased Property. In the event that all or Section 9.11. Casualt to Parking Gara e. portion of the Parking Gara e and the Garage Parcel is damaged or destroyed g any p Garage is not restored, sualty and the Parking by reason of fire or other ca Parkin Garage Ground Lease such that, in the good y pursuant to the terms of the g unfeasible to use and en- { n of Developer, it shall be economically a faith opinion er shall have the the Improvements on the Leased Property, then the Develop boy the City written notice of the exe - _ iving right to q terminate this Lease upon g -< option and this Lease shall terminate and become null and void as cise of such op money or termination specified in such option, and Rental and any of the date �4�,�._ Additional Rental and Public Charges shall be prorated and paid y 5-w : treated as b In addition to other matters the date of such termination. Developer as of - 97 - 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 Leased Property Taken by Condemnation. In `~ event that the whole of the Leased Property and Improvements (or such portion thereof as shall, in the good faith opinion of Developer, render it economically unfeasible to effect restoration thereof) 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, 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 - 98 - 84-IL483 City of costs and expenses it may incur as the condemning authority); Second: City and Developer shall be paid portions of the balance of said award or awards which are allocable to and represented by the value of their respective interest in the Leased Property as found by the court or jury in its condemnation '., award, or if no such separate awards are obtained, such balance shall be paid to Developer and the City in the same proportion as the then Fair Market Value of each party's respective interest or estate in the Leased Property and the Improvements bears to the total Fair Market Value of the interests and estates of both parties in the Leased Property and Improvements X. 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. 4 Section 10.2. Partial Taking of Leased Property by Condemnation. (a) In the event that less than all of the Leased Property or Improvements shall be taken for any public use or purpose by the exercise of s, 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 - 99 - 84--1483 '* condemnation p roceeds are made available to it pursuant to the terms hereof , remodel, repair and restore the Improvements so that they will be comparable the Improvements prior to the condemnation, taking into consideration the to provided, however, that in so doing, Developer shall fact of the condemnation; } not be required to expend more than the amount of any such award actually costs and expenses received by Developer, less all (including reasonable attorneys' fees) incurred in the collection of same. ,. (b) The award or awards of damages allowed to City and Developer _ shall be paid to and received by the parties as follows: First: There shall be paid all expenses, if any, s 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; 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 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 - loo - 84--1.483 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 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 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 taken for any public use or purpose by the exercise of the power of eminent domain, or shall be conveyed by City and Developer acting jointly to avoid proceedings of such taking, then Rental, and money to be treated as Additional Rental pursuant to this Agreement and the Public Charges in respect of such part of the Leased Property shall be paid by Developer to the date of such taking or conveyance, and after such date the Rent for the remainder of the Leased Property shall be reduced by such an amount as may be agreed upon in writing by the parties hereto, 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 reduction shall be determined by the Arbitration Panel selected in the manner and acting with the authority provided in Section 10.5. -101- 84-1483 Section 10.4. Taking _f�emporary 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 shall be taken, 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 condemnation had taken place. Rentals payable shall be the 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 Distri- bution 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 over 1 year, the Annual Basic Rental due for each consecutive year shall be increased by the percentage increase in the Consumer Price Index, or, if not available, such equivalent index. - 102 - Section 10.5. Arbitration. A panel of arbitrators ("Arbitration Panel") shall be established when required by this Agreement. U) The appointments to the panel shall be made in the following manner: (a) The City shall name one member; (b) Developer shall name one member; and (c) The aforesaid members shall promptly name a third member. (ii) Every member of the Arbitration Panel must be a member of the American Institute of Real Estate Appraisers. (iii) If either party shall fail to designate a member within fifteen (15) days after a written request so to do by the other party, then such other party may request the President of the Florida Chapter of the American Arbitration Association to designate a member, who when so designated shall act in the same manner as if he had been the member designated by the party so failing to designate an arbitrator. If the two members are unable to agree upon a third member within ten (10) days from the last date of designation, such third member shall be designated by the President of the Florida Chapter of the American Arbitration Association, upon the request of either of the two members. (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 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 -103- 84-1483 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 Arbitration Panel may render a decision at the close of the hearing, or may request briefs on any or all issues. Any and all such briefs, including reply briefs, shall be filed with the terms and on the schedule set by the Arbitration Panel, but in any event no later than forty-five (45) days following the commencement of the hearing. The Arbitration Panel shall render a determination within sixty (60) days from the conclusion of the hearing. If no determination is rendered within such time, unless the parties agree otherwise, a new Arbitration Panel shall be selected as described above, but the new Arbitration Panel shall render a determination solely upon review of the record of the hearing without a further hearing. - 104 - • no-671171 (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 determination. Each party shall pay the fees and expenses of the member of the Arbitration Panel designated by such party, such party's counsel and witness fees, and one-half (112) 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 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- 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 - 105 - 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 W"W RIGHTS OF OCCUPANCY AND ACCESS; MAINTENANCE, OWNERSHIP OF IMPROVEMENTS Section 11.1. Quiet Enjoyment. The City represents and warrants that Developer, upon paying the Rental pursuant to this Agreement and 4'z observing and keeping the covenants and agreements of this Agreement on its tea.' 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 ti" waste or impairment of the Leased Property, or the Developer Improvements thereon, or any part thereof. 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. - 106 - 84-IL483 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 paragraph, each will execute and deliver such further assurances and instruments of assignment and conveyance as may be required by the other for that purpose. During the term of this Lease, Developer shall be entitled to claim depreciation on the Improvements and all equipment, fixtures and machinery therein contained, for all taxation purposes. Section 11.5. Surrender of Leased Property. Upon the expiration of the Lease term, or upon termination of this Agreement and the Lease term hereunder in respect to the Leased Property, title to the Improvements shall vest in the City and it shall be lawful for the City to re-enter and repossess the Leased Property and the Improvements thereon without process of law, and Developer, in such event, does hereby waive any demand for possession thereof, 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. - 107 - 84-1483 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 paragraph, each will execute and deliver such further assurances and instruments of assignment and conveyance as may be required by the other for that purpose. During the term of this Lease, Developer shall be entitled to claim depreciation on the Improvements and all equipment, fixtures and machinery therein contained, for all taxation purposes. Surrender of Leased Property. Upon the expiration of Section 11.5. the Lease term, or upon termination of this Agreement and the Lease term hereunder in respect to the Leased Property, title to the Improvements shall vest in the City and it shall be lawful for the City to re-enter and repossess the Leased Property and the Improvements thereon without process of law, and Developer, in such event, does hereby waive any demand for possession thereof, 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. i.,gdF 4 .t ^5T +yyvr yg7M 3. 51, - 107 - 84-1483 k:t-1, _r .' A Section 11.6. City and Developer to Join in Certain Actions. Within Inc.ten (10) days after receipt of written request from Developer, the City shall, k` (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 i 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, Y" 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 creating or establishing the relationship of co-partners, or creating or establishing the relationship of a joint venture between the City and Developer, or as constituting Developer as the agent or representative of the City for any purpose or in any manner whatsoever. Section 12.2. Recordina, 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 - 108 - 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 fi water, reasonable public use of such property, and comply with other charter waterfront setbacks and view corridor requirements. Any conflicts between this Agreement and the aforementioned Codes and Charters shall be resolved in favor of the latter. If any term, covenant, or condition of this Lease or the application thereof to any person or circumstances shall, to any extent, be r. illegal, invalid, or unenforceable because of present or future laws or any rule or regulation of any governmental body or entity or becomes unenforceable i 4 �{ because of judicial construction the remaining terms, covenants and conditions of this Lease, or application of such term, covenant or condition to persons or circumstances other than those as to which it is held invalid or 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. - 109 - 84-148.3 -- r a__ IR Interest• Cit Representatives Not ' Conflicts of to Qe of the Section 12•a• Tepresentative, or emp Y- Liable. No member, official, interest, direct or indirect, Individuall have any Personal - City Manager shall representative or City or the an such member, official, which affects = nor shall Y Agreement in this Agreement, relating to this 9 employee participate in any decision corporation, partnership of any No or the interest interested. his or her personal interest directly or indirectly, which he or she is � or the City Manager or association in employ of the City representative or mp successor in interest in the mar, official, rep Developer or any e personally liable to or the City Manager or for any shall b P breach by the City obligations def ault or successor or on any event of any become due to Developer or amount which maY this of the Agreement* communication under under the terms to Notice. A notice of one hand, Section 12.5. _ on the the City Managers er the City or City Manager either City or the Agreement by Developer to the or on the other, by dispatched by registered Developer, °r' delivered if given or shall be suff iciently 9 requested; and re aid, return receiptcommunication to } ostage p P a notice or certif led mail, P case of (a) DevL.el er. In the r if addressed as follows Developer+ General CounselLimitedPartnership gayside Center coo The Rouse Company Parkway ,D2P75 Little 44 Columbia, Maryland 210 s Records. DevelopeT' s original duplicate books and (b) Devel erg2.5(d) shall be kept and be Section as required in rincipal place of records in auditable form i available to the City dur ng normal business hours at its p business in the City of Miami. 84' .483 - 110 - i (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 effect as modified, identifying such modification agreement, and if the Lease is not in force and effect, the certificate shall so state; (ii) the Lease as modified represents the entire agreement between the parties as to this leasing, or, if it does not, the certificate shall so state; (iii) the dates on which the term of this Lease commenced and will terminate; (iv) all conditions under the Lease to be performed by the City or Developer, as the case may be, have been satisfied and, as of the date of such certificate, there are no existing defenses or offsets which the City or Developer, as the case may be, has against the enforcement of the Lease by the other party, or, if such conditions have not been satisfied or if there are any defenses or offsets, the certificate shall so state; and (v) the rental due and payable for the year in which such certificate is delivered has been paid in full, or, if it has not been paid, the certificate shall so state. the party to whom any such certificate shall be issued may rely on the matters therein set forth and thereafter the party issuing the same shall be estopped from denying the veracity or accuracy of the same. Any certificate required to be made by the City pursuant to this paragraph may be made on its behalf by the City Manager. Section 12.7. Provisions Not Merged with Deed. None or the provisions of this Agreement are intended to or shall be merged by reason of any deed W transferring Developer's leasehold estate in the Leased Property and Improvements or any part thereof from the Developer (or its successors or assigns) to the City (or its successors or assigns), or (ii) transferring title to the Leased Property or any part thereof from the City to Developer, its successors or assigns, and any such deed shall not be deemed to affect or impair the provisions and covenants of this Agreement. Section 12.8. Titles of Articles and Sections. Any titles of the several parts, Articles and Sections of this Agreement are inserted for convenience of reference only and shall be disregarded in construing or interpreting any of its provisions. Section 12.9. 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 - 112 - M event of a termination of this Lease, the possession of each such Subtenant shall not be disturbed so long as such Subtenant shall not be in default under its Sublease; provided such Subtenant shall attorn to the City. This nondisturbance agreement shall be self -operative and no further agreement between the City and any such Subtenant shall be necessary to effect the same, however, the City agrees from time to time, promptly upon request of Developer or any Subtenant, it will enter into agreements with the Developer and any such Subtenant confirming such nondisturbance agreement. Any such confirmatory agreement may be made on behalf of the City by the City Manager. In the event of a termination of this Lease, each Subtenant shall attorn to the City. Developer covenants that each Sublease to which it shall be a party shall contain a clause 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. 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 - 113 - 84- 1483 dA _ Upon and Inure to the benefit of the s Lease shall be binding � and the Developer' this of the City contained in and assigns artner of successors INC., the sole general P respective be OF , RASE"MIAM1, Agreement to N WITNESS WERE has caused this Lease g be 1 hereunto TNERSHIP, and its corporate seal to YSIDE CF�TER LIMITEO PAR �AISSION SA Vice President CITY and the signed in its name by its its Assistant Secretary, Randolph duly attested by signed in its name by be G. the affixed and caused this Lease Agreement to by Ralph Ongie, MIAMI has cans and duly attested to OF NAGER, written. rantz, the CITY ►� TNERSHIP, A Rosen and year first hereinabove LIMITED PAR the day gAY5IDE CENTER PARTNERSHIP CITY LERK' °n MARVLAND LIMITED A FLORIDA INC•, ATTEST ROUSE•MIAMI9 GENERAL PARTNER By (CORPORATION, V Ce president BY' . PAL COWORA- Assistant A KAICIAL Secretary Seal] THE CITY OF MIAM1+ FLORIDA [Corporate IION OF THE STATE OF ATTEST ,,: *., Manager APPROVED AS TO FORM ASD CARRECTNESS: Y CITY EY S4r1483 15Wf/452A STATE OF FLORIDA ) COUNTY OF DADE ) 1, an officer authorized to take acknowledgments, FEREBY CERTIFY that on this day of December, 19849 personally appeared before me and , known to me to be the vice resldent and- ss s ant gFcietary, respec:Eivelyq of ROUSE-MIAMI, INC., a Florida corporation, known to me to be the general partner of Bayside Center Limited Partnership, a Maryland limited partnership, and known to me to be the persons who executed the foregoing instrument, and they severally acknowledged the execution thereof as the free and formal act of the said corporation as the sole general partner of such Partnership. WITNESS my hand and official seal in said County and State the day and year last aforesaid. Notary PuME, Stafe of rlorida-- at MUe My Commission Expires: STATE OF FLORIDA ) COUNTY OF DADE ) I, an officer authorized to take acknowledgments, HEREBY CERTIFY that on this day of December, 19849 personally appeared before me Randolph Rosencrantz and Ralph G. Ongie, respectively, known to me to be the City Manager and the City Clerk, respectively, of THE CITY OF MIAMI, a municipal corporation in and under the laws of the State of Florida, and known to me to be the persons who executed the foregoing instrument, and they severally acknowledged the execution thereof as the free and formal act of the said municipal corporation. WITNESS my hand and official seal in said County and State the day and year last aforesaid. Rotary c, State of Florida at Lafue- My Commission Expires: 1544F/452A - 115 - 777777 �u i tJYy 1f Days 0 30 90 120 135 225 240 250 305 730 790 850 1544F/452A-113 EXHIBIT G Event Fully negotiated executed documen- tation Complete refinement of conceptual design with city Financing commitments obtained Approval of Financing, and Preliminary Plans to City for approval including City departments review and approval City Approval including City departments of Preliminary Plans Complete review of Final Plans with City City approval including City depart- ments approval of Final Plans and Issuance of Building Permits Corps of Engineers. landfill complete, Demolition of Auditorium complete, City Improvements on Retail Parcel complete and Possession Date Rouse commences construction Improvements constructed with Tenant Allowance substantially complete Bayfront Park improvements and balance of City Improvements substantially complete Bayside Specialty Center open to public and Rent Commencement Date - 116 - 84-JL483 §ice"t } t 1J !1W�{�rIf rl�4 `�t J ix '�►1 �$„ - ��'� � s�Ai �`+ '�rti`�k.'y *' �vy •�i+ p �5 ,�+;�f. i i t �,�sr� � „f" j r 'ek •r ,1 � ''� 5� �`,o �W �y,j 5� •, �• ;. f :{ �',.. -- �•$,-� '�%�t �,�. +fit �, y7� fyy����y irk. � • r . - rr a � `� �.,�' � a _ i �� r y { +ii •!-• S !4.+Gt , i t •.. , .J Sant ,- ''••SSA• - .�-- ej dr 5 8q"d "!i8 w ►'" !�•' ri * _ r t- �;.iYl�7.++..+ai.ridMW`iri.+ir.af , •'r r s ♦, ' �; r. �r ,i •e, � _t..i� Ry.•.1, 3'. .'i* z r 'stir. -s ! .pr y 1�.� -. ,C L + . r r:.4 .4 �, , rr•^� t+ ,r�., y t :.; � •9, K . � y ,'}I; - ,� s ��,� ,�•+Ie r� i f�{����I����r/; �i/.♦II71ri Y +i• t ,�i�S�h.�+'=•i� t= � _ ♦". 3rjL `r to „�+,;{. t ! �tMl�r � E � �,••� /L.� ,� y�y ,4 1 i�•it// +WOVt �i� + + � % k� ti•- Y v�}r• t �� lt' y� 'Lt ���. 1- y ``""T - t,F ! 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AYSI,DE' CENTER l 13ROWN. ELL & �UL..TI NG ' E: NGNEF:ER �, + , "ti a 0 0 5T .. - , JMITED, PARTNERSHIP-,',; L ANC:: SURVEIL EXHIBIT "A-2" PLAT FOR BAYFRONT PARK - NOT AVAILABLE 84-1483 EXHIBIT A-3 SITE PLAN (RETAIL PARCEL) THIS DOCUMENT APPEARS AS EXHIBIT A-3 IN THE LEASE AGREEMENT BETWEEN BAYSIDE LIMITED PARTNERSHIP AND CITY OF MIAMI - PARKING GARAGE. 84-1483 d°i.zell Py ..sly; .ynArl. RETAIL PARCEL 9xHtB1T 8-1 ld64501 F 0 November 21, 1984 Revised December 3, 1984 Commence at the Northeast corner of Block 61 North of the A. L. KNOWLTON MAP OF MIAMI, as recorded in Plat Book "B" at Page 41 of the Public Records of Dade County, Florida; thence run North 89058118" East along the Easterly prolongation of the Northerly line of Block 61 North of said A. L. KNOWLTON MAP OF MIAMI for a distance of 557.10 feet to a point; thence run South 00008111" West for a distance of 100.00 feet to a point of intersection with the South line of Port Boulevard as recorded in Official Records Book 6811 at Page 240 of the Public Records of Dade County, Florida; said point being the Point of Beginning of the parcel hereinafter described; thence run South 00008111" West for a distance of 34.17 feet to a point; thence run South 89051'49" Ea8t for a distance of 158.33 feet to a point; thence run South 00 08111" Westfor adistance of 149.00 feet to a point; thence run South 89051149" East for a distance of 28.42 feet to a point; thence run South 00008,111, West for a distance of 50.00 feet to a point; thence run North 89051149" West for a distance of 28.42 feet to a point; thence run South 00008111" West for a distance of 166.00 feet to a point; thence run South 89051149" East for a distance of 28.42 feet to a point; thence run South 00008111" West for a distance of 50.00 feet to a point; thence run North 89051'49" Wsst for a distance of. 30.00 feet to a point; thence run North 00 08'11" East, fob a distance of 11.00 feet to a point; thence run North 89 51'49" West for a distance of 156.75 feet to a point; thence run South 00008'11" West fgr a distance of 25.00 feet to a point; thence run North 89 51'49" West for a distance of 101.25 feet to a point; thence run North 00008'11" Esst for a distance of 25.00 feet to a point; thence run North 89 51149" West for a distance of 73.07 feet to a point of intersection with a line 210 feet Easterly of and parallel with the City Monument line of Biscayne Boulevard (North); thence run South 16 51'29" East along a line parallel with the City Monument line for a distance of 83.92 feet to a point; thence continue along a line 210 feet Easterly of and parallel with the City Monument line South 84-1.483 RETAIL PARCEL November 21, 1984 (Revised December 3, 1984) Page 2 09033121" East for a distance of 139.74 feet to a point; thence run South 89051'49" East for a distance of 140.96 feet to a point; thence run South 56058103" East for a distance of 500.82 feet to a point; thence run South 65 50146" East for a distance of 573.80 feet more Qr` less to a point of intersection with the West line of the Baywalk Area; thence run North 27013114" East along the West line of said Baywalk Area for a distance of 132.26 feet to a point; said point bears South 57 16129" West and is 77.25 feet distant from an U.S. Army Corp. of Engineers Station BFP-1 said station being a chiseled "x" in a concrete bulkhead; thence run South 85027143" East along the North line of said Baywalk Area for a distance of 49.24 feet more or less to a point of intersection with a line 65.00 feet Northwesterly of the Metropolitan Dade County Bulkhead line as recorded in Plat Book 74 at Page 18 of the Public Records of Dade County; thence run North 27017127" East along said line parallel with the Metropolitan Dade County Bulkhead line for a distance of 714.32 feet to a point of intersection with the existing bulkhead of the Miamarina; thence run North 40020'40" West along said existing bulkhead for a distance of 185.10 feet to a �oint of intersection in the existing bulkhead; thence run South 27 12122" West for a distance of 549.00 feet to a point of intersection in the existing bulkhead; thence run North 85017138" West along said bulkhead for a distance of 58.54 feet to a point of intersection in the existing bulkhead; thence run South 49023158" West along said bulkhead for a distance of 86.76 feet to a point of intersection in the existing bulkhead; thence run South 04040146" West along said bulkhead for a distance of 85.53 feet to a point of intersection in the existing bulkhead; thence run South 27005'27" West along said bulkhead for a distance of 21.57 feet to a point of intersection in the existing bulkhead; thence run North 85048103" West along said bulkhead for a distance of 26.87 feet to a point of intersection in the existing bulkhead; thence run North 65050146" West along said bulkhead for a distance of 61.23 feet to a point; thence run North 24009114" East for a distance of 52.25 feet to a point; thence run North 65050146" West for a distance of 60.00 feet to a point; thence run South 24009114" West for a distance of 52.25 feet to a point of intersection with the existing bulkhead; thence run North 65050'46" West along said bulkhead for a distance of 156.00 feet to a point; thence run North 24°09'14" East for a distance of 52.25 feet to a point; thence run North 65050'46" West for a distance of 60.00 feet to a point; thence run South 24009'14" West for a distance of 52.25 feet to a point of E. R. BROWNELL Q ASSOCIATES. INC.. MIAMI. FLORIDA 84+JL483 EXH181T 8-2 RETAIL PARCEL November 21, 1984 (Revised December 3, 1984) Page 3 intersection with the existing bulkhead; thence run North 65.50146" West along said bulkhead for a distance=of 49.00 feet to a point of curvature of a curve concave to the Northeast having a radius of 139.39 feet; thence Northwesterly ang Northerly along said surve through a central angle of 65 58'57" for an arc distance of 160.52 feet to a point of tangency; thence continue along said existing bulkhead North 00 08111" East for a distance of 179.08 feet to a point; thence run South 89051149" East for a distance of 52.25 feet to a point; thence run North 00"08'11" East for a distance of 60.00 feet to a point; thence run North 89051149" West for a distance of 52.25 feet to a point of intersection with the existing bulkhead; thence run North 00008111" East along said bulkhead for a distance of 156.00 feet to a point; thence run South 89051149" East for a distance of 52.25 feet to a point; thence run North 00008111" East for a distance of 60.00 feet to a point; thence run North 89051149" West for a distance of 52.25 feet to a point of intersection with the existing bulkhead; thence run North 00008111"East along the said bulkhead and its Northerly projection for a distance of 176.38 feet to a point of intersection with the South line of said Port Boulevard; thence run South 89058118" West along the South line of said Port Boulevard for a distance of 421.75 feet more or less to the Point of Beginning; containing 12.9032 Acres more or less. E. R. BROWNELL at ASSOCIATES. INC.. NIAMI. FLORIDA 84-14&3 ■ EXHIBIT 9-2 •5 9, , , , I 'Wo-alOftap December 4, 1984 LEGAL DESCRIPTION AREA "A-4" Commence at the intersection of the City Monument Line of Biscayne Boulevard (North) and N. E. 1st Street; thence run South 89059121" East along the Easterly extension of the City Monument Line of N. E. 1st Street for a distance of 723.50 feet to the Point of Beginning of the parcel herein- after described; thence run South 28 41103" East for a distance of 108.30 feet to a point; thence run North 61°18157" East for a distance of 72.54 feet to a point of intersection wish the West line of the Baywalk Area; thence run North 27 13'19" East along the West line of the Baywalk Area for a distance of 147.88 feet to a point; thence run North 28041103" West for a distance of 97.11 feet to a point; thence run South 61°18'57" West for a distance of 195.00 feet to a point; thence run South 28°41'03" East for a distance of 71.70 feet to the Point of Beginning, containing 0.689 Acres, more or less. 84-14M EXHIBIT 9-3 . LEGAL DESCRIPTION AREA "A-5" December 4, 1984 gd04" ,dos-ssf0' Commence at the intersection of the City Monument -Line orun Biscayne Boulevard (North) and N. E. 1st Street; South 89°59'21" East along the Easterly extension of the City Monument Line of N. E. 1st Street for a distance of 335.00 feet to the Point of Beginning of the parcel herein- after described; thence run North 00000139"East for 89°59'21" distance of 190.00 feet to a point; thence run southEast for a distance of 130.00 feet to a point; thence run oint; South 00000'39" Wes8 for a distance of 195.00 feet to a p thence run North 89 59121" West for a distance of 130.00 feet to a point; thence run North 00 00'39" East for a distance of 5.00 feet to the Point of Beginning, containing 0.582 Acres, more or less. 84-1.48&3 AGREEMENT OF GUARANTY December , 1984 As used in this Agreement of Guaranty, the term "Ground Lease" means that certain Lease Agreement, of even date herewith, by and between the City of Miami, a municipal corporation of the State of Florida (the "City"), as lessor, and Bayside Center Limited Partnership, a Maryland limited partnership ("Developer"), as lessee, with respect to the Bayside Specialty Center Retail Parcel. All other capitalized terms used herein shall have the meaning ascribed to them in the Ground Lease unless otherwise defined herein. The City is willing to enter into the Ground Lease with Developer only if the undersigned guarantees the full, prompt and faithful performance by Developer of all of its obligations under the Ground Lease until Completion Date shall have occurred. NOW THEREFORE, in consideration of the premises and of other valuable consideration and to induce the City to enter into the Ground Lease, the undersigned agrees with the City as follows: 1. The undersigned unconditionally guarantees to the City the full, prompt and faithful performance by Developer of all of its obligations under the Ground Lease arising on or before the Completion Date, including, without t.ion, the obligation of Developer to complete, equip and pay for the lear of any and all liens connected with or Developer Improvements free and c arising out of said construction, equipment or completion. 2. If Developer does not perform the obligations specified in paragraph 1 of this Agreement of Guaranty on or before the time such obligations are to be performed by Developer pursuant to the Ground Lease, the undersigned shall perform such obligations and shall pay all costs and expenses incurred in so doing and shall pay to or reimburse the City for all expenses incurred by, or other moneys due, in enforcing such obligations of the Developer under the Ground Lease and in enforcing the obligations of the undersigned hereunder. 3, The City may without notice to or the consent of the undersigned at any time and from time to time, either before or after any default of Developer, (a) amend, by agreement with Developer, any provision of the Ground Lease, (b) make any agreement with Developer for the extension, payment, compounding, compromise, discharge or release of any provision of the Ground Lease for any modification of the terms thereof, and (c) without limiting the generality of the foregoing, the City is expressly authorized to surrender to Developer, or to deal with or modify the form of, any security which the City may at any time hold to secure the performance of any obligation hereby guaranteed, and the guaranties herein made by the undersigned shall not be impaired or affected by any of the foregoing. 4. Any notice or demand given or made under this Guaranty shall be given or made by mailing the same by registered or certified mail to the party EXHIBIT D 84-1483 to whom the notice or demand is given or made at the address of such party set forth below, or such other address as such party may hereafter designate by notice given as provided in this paragraph. The address for notices to Developer is: Bayside Center Limited Partnership 10275 Little Patuxent Parkway Columbia, Maryland 21044 Attention: General Counsel The address for notices to the City is: City Manager City of Miami 3500 Pan American Drive Miami, Florida 33133 5. This Guaranty is, and shall be deemed to be, a contract entered into under and pursuant to the laws of the State of Florida and shall be in all respects governed, construed, applied and enforced in accordance with the laws of said state; and no defense given or allowed by the laws of any other state or country shall be interposed in any action or proceeding hereon unless such defense is also given or allowed by the laws of the State of Florida. 6. Each reference herein to the City shall be deemed to include its suc-cessors and assigns as lessor under the Ground Lease, in whose favor the provisions of this Guaranty shall also inure. Each reference herein to the undersigned shall be deemed to include the successors and assigns of the undersigned, all of whom shall be bound by the provisions of this Guaranty. 7. No delay on the part of the City in exercising any rights hereunder or failure to exercise the same shall operate as a waiver of such rights; no notice to or demand on the undersigned shall be deemed to be a waiver of the obligation of the undersigned or of the right of the City to take further action without notice or demand as provided herein; nor in any event shall any modification or waiver of the provisions of this Guaranty be effective unless in writing nor shall any such waiver be applicable except in t� the specific instance for which given. 8. This Guaranty may be executed in one or more counterparts by some or all of the parties hereto, each of which counterparts shall be an original and all of which together shall constitute a single agreement of guaranty. IN WITNESS WHEREOF, the undersigned has duly executed this Guaranty as of the day and year first above written. 1700E /457A THE ROUSE COMPANY By: Vice -President - 2 - 84-1483 EXHIBIT "E" - PERMITTED ENCUMBRANCES AND EASEMENTS - NOT AVAILABLE 84-1463 -jo JTj ma-w � u loin EXHIBIT F WA I uk 0 R 1 A 0 S I T E L 0 C A T 1 0 N P L A N S E P TEM BE R 1 9 8 3 SCALE - 1** - 100' 0' BAYSIDE THE ROUSE COMPANY E7 84-1483 �-Vp- ILI 41f; sc I T E 0 0 S iWOOZZi ........ . . ... ..... .. 4- 7\\ 71 1 ge % G R 0 U N D F L 0 0 R P L A N pll;q SEPTEMBER 1983 SCALE 1 1 '- 40'-0' D2 BAYSIDE THE ROUSE COMPANY 11"T psm:� 3", .......... .7- 84-1483 9 p -0 GROUND F L 0 0 R P L A N pm SEPTEMBER 1983 S C A L E a I '- 40'-0' E12 BAYSTDE THE ROUSE COMPANY 'A 84-1483 W S E C 0 N D F L 0 0 R P L A N m SEPTEMBER 1983 SCALE V - 4 0'- 0" 1 w L ED . .1 BAYSIDE THE ROUSE COMPANY 84-1483 VI d N Wt: ni , f -I- - 0 kip " RESTAURANT�J* HOPS SHOP C A F E sEwt SECOND FLOOR PLAN R I N A jVECHANICAL It I t PIARKINUG TIIInUCTURE lr6ai, 1p 1-Hl . I Iv i I 11 it Y FIRST FLOOR PLAN N 0 R T H P A V I L 1 0 N P L A N S SEPTEMBER 1 98 3 SCALE - !16"-1• 0' BAYSIDE THE ROUSE COMPANY 84-1483 77777-- b "s % f Ali z, - IF:STAIIRANT SECOND FLOOR o REFLECTIONS FIRST FLOOR rr 4 CONFIGURATION - MARINA SERVICES CONFIGURATION THR0001 PRESENT LEASE. 4, k, I . . . RESTAURANT PIER FIRST FLOOR L 4 CO .4 c ' 21 G R E E N H O us E 41c 7 41V MARKET BUILDING BAYSIDE THE ROUSE COMPANY 84-1483 q u u I i i rt ,I a • u — Y �Hill _C 3-Q_u y, 1•it=f3cS a. s��� �. O_�_a. '.� o_ -- — — - � . / 3.G - - SS Iieiil1�14i1e1 1 I,F is 'r'?exo��h ♦ �[ ���.� �1 �h, : ,fiiill�it � TIM, law i V, SECOND FLOOR PLAN cts:; FIRST FLOOR PLAN S 0 U T H P AV I L I ON P L A N S Vn SEPTEMBER 1983 SCALE - %6--I'-0" BAYSIDE THE ROUSE COMPANY 84-IL483 tr ' r � a n ... .,, �A['i'x :'*�� •.,. ....., s,.�, .-,.. '� .'. ,..z._?K .mom._.. �,i.s.'�. .. t ..-,_ ��: a?^.�3-x ,. �._� ... `� r`� `. _ -'3 ,�k 'Fi.., _'#..a PIER PARK VISUAL IMAGE 4 LANDSCAPED ,`ifs INTEGRATION WITH PROPOSEDU VISIBILITY TO WATER F.E.C. TRACT �Ao \ W POTENTIAL OVERFLOW 'e'• �jiSURFACE PAI - ' o •AREA A-2 t� - AREA A-3 PROPOSED BUILDING FOOT PRINT IS .91 ACRES ' (2.06 ACRES ALLOWED) MAXIMUM HEIGHT OF ALL NEW CONSTRUCTION 57 FT. ABOVE( , MEAN WATEW' SANITARY FORCE MAIN NO FOUNDATION OR STRUCTURE FALLS) WITHIN 10 FT. OF THE �0 f Z CENTER LINE OF THE % lt_ti 1 FORCE MAIN INTEGRATION WITH NATURAL LANDSCAPE COMPLIANCE WITH R.F.P. LIMITATIONS CONCEPT DIAGRAMS SAYSIDE THE ROUSE COMPANY 84-1483 F.E.C. TRACT EASY ACCESS TO l FUTURE PROPOSED A• 4. Y PEOPLE-MOVER'az&_' STATION AND PEDESTRIAN BRIDGE - 10 B AYSi bt,, It -4 KCONTINUATION AND A ENHANCEMENT OF EXISTING WATERFRONT PROMENADE PUBLIC ACCESS TO WATERFRONT • F.E.C. TRACT ru,6pf POTENTIVA&All�: OVERFLOW SURFACE PARKING 411100 lew 0• PARKING 0 1200 CARS nn ENTRANCE' DRIVE TO B A Y S I ME 4z FF NG, ACCESS PARKIN Q, T AND SERVICE ..,PICK-U.` I I . ­ I., .. �y DRIVE cj!6 elk Vo BUS DROP-OFF PROPOSED GRAND PRIX COURSE 'lip A SERVICE F.E.C. 'TRACT u,uoc osTlim T -p ' OPEN PEDESTRIAN co M CIRCULATION INTEGRATES PROJECT WITH EXISTING PFII� M� K, MARINA AND CBD 0 BAY Ell lu EASY ACCESS TO AND.* ;l FROM PROPOSED IL AMPHITHEATER A PUBLIC PEDESTRIAN ACCESS 4 F.E.C. TRA-CT luN.v coliq ul "At MARKET SQUARE A CIVIC PLAZA FOR THE ENJOYMENT OF THE PUBLIC , f - zol Mai BAYSIDtr 0 VEHICULAR ACCESS GRAND PRIX MARKET SQUARE CIVIC PLAZA CONCEPT DIAGRAMS BAYSIDE THE ROUSE COMPANY 84-1483 D IR W R p $�As. 51xy tip, % PROGRAM SUMMARY BAYSIbE THE PtoUSE co1V PMv • NORTH PAVILION 1ST FLOOR 2ND FLOOR TOTAL RESTAURANT/CAFE 17,504 21,600 39,104 (INCLUDES MARKET RESTAURANT) RETAIL 30,328 15,568 45,896 TOTAL LEASEABLE SF 47,832 37,168 85,000 • SOUTH PAVILION 1 ST FLOOR 2ND FLOOR TOTAL RESTAURANT/CAFE 11,864 13,768 25,632 RETAIL 32,856 - 32,856 SPECIALTY FOOD - 24,152 24,152 TOTAL LEASEABLE SF 44,720 37,920 82,640 • MARKET BUILDING FLOWERS/ PRODUCE 5,500 MARKET FOOD 3,500 BULL MARKET 7,000 TOTAL LEASEABLE SF 16,000 • PIER RETAIL (MARINA SALES) 1,000 RESTAURANT 15,000 TOTAL LEASEABLE SF 16,000 • TOTAL PROJECT AREA GENERAL RETAIL 79,752 RESTAURANT/CAFE 79,736 SPECIALITY FOOD 24,152 MARKET FOOD 3,500 BULL MARKET 7,000 FLOWERS/PRODUCE 5,500 ■ TOTAL LEASEABLE SF (NEW PROPOSAL) 199,640 WITH EXISTING REFLECTIONS/MARINA 26,950 TOTAL LEASEABLE SF • PARKING STRUCTURE • MARINA PARKING • OVERFLOW SURFACE PARKING 226,590 1200 CARS 40 CARS 250 CARS 84-1:48.3 EXHIBIT1 G DaYS 0 30 90 120 135 225 240 250 305 602F/22A-101 Event Fully negotiated executed documen- tation Complete refinement of conceptual design with city Financing commitments obtained Approval of Financing Preliminary plans to City for approval including City departments review and approval City Approval including City departments of preliminary plans Complete review of final plans with City City approval including City departments approval of final plans Issuance of Building Permits Corps of Engineers landfill on Retail Parcel complete Demolition of Auditorium complete Possession Date Rouse and City commence construction Infrastructure substantially complete Bayfront park improvements sub- stantially complete Parking Garage open to public and Rent Commencement Date 84-1483 MINORITY PARTICIPATION AGREEMENT THIS MINORITY PARTICIPATION AGREEMENT ("this Agreement") made this day of December, 1984 by and between the CITY OF MIAMI, a municipal corporation of the State of Florida ("the City") acting by and through the CITY MANAGER ("the City Manager") and BAYSIDE CENTER LIMITED PARTNERSHIP, a Maryland limited partnership ("Developer"). STATEMENT OF BACKGROUND AND PURPOSE By authority of the City of Miami Charter, the City on March 18, 19839 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 boutiques, markets and entertainment areas re:jpc)nsive to urban, environmental and design factors inherent to the City waterfront and Bayfront Park. Developer submitted a proposal to develop a mixed -use project ("Project") consisting of a waterfront specialty center ("Bayside Specialty Center") more particularly described in that certain Lease Agreement between the Developer and the City dated of even date herewith ("Retail Lease") and a parking garage and surface parking lot ("Parking Garage") more particularly in a Lease Aoreement between the Developer and the City of even date herewith ("Parking Garage Lease"), which proposal contained, among other things, a minority participation plan. The City has accepted the Developer's proposal for the Project and the City and the Developer have executed and delivered the Lease simultaneously with the execution and delivery of this Agreement. EXHIBIT H 84-148&3 It is the mutual desire of the parties to set forth their agreement and understanding of the goals for minority participation in the Project. In consideration of the foregoing and the covenants and agreements hereinafter set forth, the parties covenant and agree as follows: ARTICLE I DEFINITIONS A t Section 1.1 Defined Terms. As used herein the term: "this Agreement", means this Minority Participation Agreement, as the same may be modified or amended f rom time to time provided that any such k t t modification or amendment must be consented to by a four fifths (4/5ths) vote of . the Miami City Commission. "Bayside Specialty Center" has the meaning ascribed to it in the SL-ater=,ent of Background and Purpose. v "the City' has the meaning ascribed to it in the opening paragraph of l M. ;. this Agreement. f "the City Manager" has the meaning ascribed to it in the opening _ paragraph of this Agreement. g�x# "Miami Job Development Program" means a federally -funded City job development program to be selected by the City and Developer. "Construction Contracts" means those certain agreements between the Developer and a construction manager or general contractor for construction of the Developer Improvements, and includes subcontracts with respect to such work between the general contractor and subcontractors or, in the event Developer employs a construction manager rather than a general contractor, the trade contracts between Developer and trade contractors with respect to such - 2 - 84-1483 E work. The term "construction contract" does not include any contract or subcontract with respect to Tenant Improvements. "Developer" has the meaning ascribed to it in the opening paragraph of this Agreement. "Foundation" means that certain entity which is to be created by the Developer to promote minority development in the City of Miami pursuant to Article V of this Agreement. "Foundation Contribution" has the meaning ascribed to it in Section 5.3. "Minority" means (i) the following persons as defined in the following definitions as approved by U.S. Department of Housing and Urban Development ("H.U.D."), or as may be changed by H.U.D. from time to time, with special emphasis with regard to Blacks and Hispanics: (a) Black (all persons having origins in any of the Black African racial groups not of Hispanic origin); (b) Hispanic (all persons of Mexican, Puerto Rican, Cuban, Central or South American or other Spanish culture or origin, regardless of race) ; (c) Asian and Pacific Islander (all persons having origins in any of the original peoples of the Far East, Southeast Asia, the Indian Sub -continent, or the Pacific Islands); and (d) American Indian or Alaskan Native (all persons having origins in any of the original peoples of North America and maintaining identifiable tribal affiliations through membership and participation or community identification). (ii) Females (whether or not included in the definition of Minority set forth in (i) above. - 3 - 84-1483 "Minority Business Enterprise" means a corporation, partnership, individual, sole proprietorship, joint stock company, joint venture or other legal entity which is at least 51% owned by a Minority or at least 51% of the stock outstanding is individually or collectively owned by a Minority, with special emphasis with regard to Minority ownership by Blacks and Hispanics. "Minority Tenant" means a person, firm, corporation or other legal entity using or occupying or entitled to use or occupy any part of the Project, who is a Minority or a Minority Business Enterprise. "Minority Committee" has the meaning ascribed to it in Article VII. "Parking Garage" has the meaning ascribed to it in the Statement of Background and Purpose. IlParking Garage Lease" has the meaning ascribed to it in the Statement of Background and Purpose. "Private Industry Council" means the Private Industry Council of South Florida, a non-profit Florida corporation, having offices at 225 N.E. 34th Street, Miami, Florida 33137. "Project" has the meaning ascribed to it in the Statement of Background and Purpose. "Retail Lease" has the meaning ascribed to it in the Statement of Background and Purpose. "Section", "subsection", "para raph", "subparagraph", "clause", or "subclause" followed by a number or letter means the section, subsection, paragraph, subparagraph, clause or subclause of this Agreement so designated. "SBA" means the Small Business Administration of the United States. "Tenant" means a person, firm, corporation or other legal entity sing or occupying or entitled to use or occupy any part of the Project. - 4 - 84-1483 "Tenant Improvements" means those improvements, furnishings, fixtures and equipment required to be made to or installed in the premises leased by a Tenant pursuant to a Tenant's lease or other agreement pursuant to which the Tenant is entitled to occupy premises within the Project. Section 1.2 Terms in the Lease. All other capitalized terms shall have the meanings ascribed to them in the Lease. ARTICLE II CONSTRUCTION CONTRACTS Section 2.1 Goals. Developer agrees to exert diligent, good faith efforts to meet the following goals in relation to the construction of the Project: a. Thirty-five percent (35%) of the total contract price (without duplication) of all Construction Contracts to be awarded to Minority Business Enterprises, including, but not limited to, subcontractors and laborers, and b. Fifty percent (50%) of all construction jobs under Construction Contracts to be filled by Minorities. Developer agrees that where practicable and with the cooperation of applicable labor organizations, Developer will make reasonable efforts to fill such construction jobs by Dade County residents. Section 2.2 Developer's Obligation. The Developer's diligent, good faith efforts shall include, but not be limited to, the following: a. Designating specific construction trades for competitive bidding among Minority contractors, b. Encouraging joint ventures between Minority contractors and non -minority contractors, - 5 - 84-1483 r P 1 c. Requiring the Developer's general contractor to use diligent efforts to hire Minorities from the neighborhoods having the highest rate of unemployment consistent with the need to avoid disruptions due to labor disputes, d. To the extent feasible, providing for small subcontracting packages in an effort to obtain bids from qualified Minority Business Enterprises, e. Waiving bonding requirements for qualified Minority Business Enterprises if (i) that Minority Business Enterprise otherwise meets the requirements of the Developer, (ii) the waiving of the bonding requirement is necessary in order for the bid to be competitive with non -minority bids, and (iii) there is no other Minority Business Enterprise bidding on the same contract that does not require a waiver of the bonding requirements, f. As permitted by the project budget, and consistent with procedures to be established, subcontracts may be awarded to qualified Minority Business Enterprises even if that Minority Business Enterprise is not the lowest bid for particular proposal in order to meet the goal established in Section 2.1(a) , g. Negotiating cash draws upon completion of specific segments of a subcontract or interim payments to a qualified Minority Business Enterprise to which a subcontract has been awarded if (i) the draws or interim payments are necessary, in the opinion of the Developer, to assist the Minority Business Enterprise in meeting any cash flow requirements for the subcontracts and (ii) such Minority Business Enterprise can provide Developer with the evidence required under the contract with Developer that the Minority Business Enterprise has paid all subcontractors, materialmen and laborers performing 6 _ 84-IL483 c. Requiring the Developer's general contractor to use diligent efforts to hire Minorities from the neighborhoods having the highest rate of unemployment consistent with the need to avoid disruptions due to labor disputes, d. To the extent feasible, providing for small subcontracting packages in an effort to obtain bids from qualified Minority Business Enterprises, e. Waiving bonding requirements for qualified Minority Business Enterprises if (i) that Minority Business Enterprise otherwise meets the requirements of the Developer, (ii) the waiving of the bonding requirement is necessary in order for the bid to be competitive with non -minority bids, and (iii) there is no other Minority Business Enterprise bidding on the same contract that does not require a waiver of the bonding requirements, f. As permitted by the project budget, and consistent with procedures to be established, subcontracts may be awarded to qualified Minority Business Enterprises even if that Minority Business Enterprise is not the lowest bid for particular proposal in order to meet the goal established in Section 2.1( a) , g, Negotiating cash draws upon completion of specific segments of a subcontract or interim payments to a qualified Minority Business Enterprise to which a subcontract has been awarded if (i) the draws or interim payments are necessary, in the opinion of the Developer, to assist the Minority Business Enterprise in meeting any cash flow requirements for the subcontracts and (ii) such Minority Business Enterprise can provide Developer with the evidence required under the contract with Developer that the Minority Business Enterprise has paid all subcontractors, materialmen and laborers performing -6- f ' Pl ? PI p 84-1483 work or supplying material for the Minority Business Enterprise into the Project except for those entitled to claim under such draw or interim payment, h. Advising Minority Business Enterprises who are bidding on contracts, on how to obtain discounts for the purchase for supplies or materials for use on the Project'to the degree such information is available so that the Minority Business Enterprise may bid competitively on a contract, i. Advising Minority contractors, who are awarded contracts or subcontracts, who may request, or in Developer's judgment, may need, assistance on the development of managerial skills necessary to coordinate their contract with the other contracts in the Project, and j. Encouraging Developer's general contractor and subcontractors to purchase materials, supplies and equipment for work to be performed on the Project from Minority Business Enterprises. ARTICLE III PROFESSIONAL SERVICE CONTRACTS Developer agrees to use diligent, good faith efforts to hire consultants and professional service firms, that are either Minority owned or who have entered into subcontracts with Minority owned firms in connection with the development of the Project. ARTICLE IV LEASING Section 4.1 Goal. City and Developer agree that the Project should have the highest possible number of Minority Tenants consistent with -7- L. - r`x q .�M�t � - � L � 84-1483 t work or supplying material for the Minority Business Enterprise into the Project except for those entitled to claim under such draw or interim payment, h. Advising Minority Business Enterprises who are bidding on contracts, on how to obtain discounts for the purchase for supplies or materials for use on the Project to the degree such information is available so that the Minority Business Enterprise may bid competitively on a contract, J. Advising Minority contractors, who are awarded contracts or subcontracts, who may request, or in Developer's judgment, may need, assistance on the development of managerial skills necessary to coordinate their contract with the other contracts in the Project, and j. Encouraging Developer's general contractor and subcontractors to purchase materials, supplies and equipment for work to be performed on the Project from Minority Business Enterprises. ARTICLE III PROFESSIONAL SERVICE CONTRACTS Developer agrees to use diligent, good faith efforts to hire consultants and professional service firms, that are either Minority owned or who have entered into subcontracts with Minority owned firms in connection with the development of the Project. ARTICLE IV LEASING Section 4.1 Goal. City and Developer agree that the Project should have the highest possible number of Minority Tenants consistent with -7- �� C Y 84-1483 the economic viability of the Project, and that the setting of specific quotas for Minority Tenants would prejudice individual Lease negotiations to the possible economic detriment of the Project. The following sections set forth certain steps which Developer obligates itself to take to enable this goal to be accomplished and to enable the City to monitor Developer's performances hereunder. Section 4.2 Developer Obligations. In pursuit of the goal set forth in Section 4.1, Developer will take the following steps: a. In advance of the beginning of Project leasing, Developer will set aside not less than fifty percent (50%) of the number of spaces to be leased in the Project for leasing to Minority Tenants. b. Developer will designate specific high volume leasing categories in which Minority Tenants have been successful in other projects developed by affiliates of The Rouse Company and will hold these categories off the market until November 11 1985 (such date to be extended in the event that before November 19 1985 the project opening date is extended beyond November 19 1986), making them available for leasing to Minority Tenants, consistent with the Project's need to meet rental objectives and to have the maximum possible number of stores, restaurants, and eating places leased and open to the public when the Project opens for business. C. From the outset of the leasing process, Developer will make diligent, good faith efforts to identify a pool of prospective Minority Tenants, and will assign to this task leasing representatives based in Developer's field leasing office in the City of Miami. The efforts of these -a- 84—JL483 representatives will be supplemented as necessary by personnel from the home office of Developer's parent, The Rouse Company. . d. Developer will also make diligent, good faith efforts to identify and, as appropriate, stimulate joint ventures between prospective Minority merchants and qualified non -minority business persons or entities in order to provide the Minority partner with the financial or management support necessary or desirable to become and remain a viable Minority Tenant in the Project. Upon agreement of both the qualified minority and non -minority parties, the minority partner in such venture shall have the right to buy-out the non -minority interests in the venture. e. Developer will establish a regular communications and outreach program with the Minority community in the City of Miami and Dade County to make known available Minority Tenant opportunities at the Project. This program will include a public relations campaign (including advertising in local Minority media), presentations to local Minority community groups, mailings to known Minority Business Enterprises, and independent canvassing of local Minority merchants by Developer's leasing representatives. f. Developer will implement a program for interviewing and qualifying Minority Tenant prospects once they are identified. Interested prospects will be required to complete simple qualification questionnaires indicating, among other things, proposed merchandise category, previous business experience and credit history (if any), banking relationships (if any), and the reasons why the prospect believes he or she would be a successful merchant. Each prospect completing and returning a questionnaire 84-IL483 - 9 - will be contacted by a Developer's leasing representative, after which a preliminary judgment will be made by Developer whether to pursue further negotiations with prospect and, if so, whether the prospect will require financial assistance in order to start up a business in the Project. Developer agrees to make such judgments promptly and in good faith, (but in any event such judgment shall be in Developer's sole discretion) and, if such a judgment is made in favor of a prospective Minority Tenant, to negotiate in good faith a lease with such prospect and, where appropriate, to assist such prospect in arranging the necessary financial assistance. g. In order to assist prospective Minority Tenants in securing debt and equity financing to start up a business in the Project, Developer will initiate and coordinate a financing program for Minority Tenants and will enlist the participation of local banks, local businesses, the SBA, and local, 3tatc- and federal business development assistance agencies. As part of this program, Developer will provide cash grants as tenant allowances to fund a portion of the startup, inventory, leasehold improvement and capital equipment costs. Developer shall negotiate the amount of such grants on a Tenant -by -Tenant basis, taking into account such factors, among others, as a Tenant's financial net worth and equity contribution, size and use of the prospective leasehold premises, the estimated cost of Tenant Improvements, the estimated cash flow for the prospective new business, and the terms and conditions of debt and equity financing then available from all other sources to the prospective Minority Tenant, and the amount of cash grants made to comparable Minority merchants in other projects developed by affiliates of The Rouse Company, and the amounts budgeted for this purpose for the Project. The parties hereto recognize that neither the goals set forth in Section 4.1 nor - to - 84-1483 will be contacted by a Developer's leasing representative, after which a preliminary judgment will be made by Developer whether to pursue further negotiations with prospect and, if so, whether the prospect will require financial assistance in order to start up a business in the Project. Developer agrees to make such judgments promptly and in good faith, (but in any event such judgment shall be in Developer's sole discretion) and, if such a judgment is made in favor of a prospective Minority Tenant, to negotiate in good faith a lease with such prospect and, where appropriate, to assist such prospect in arranging the necessary financial assistance. g. In order to assist prospective Minority Tenants in securing debt and equity financing to start up a business in the Project, Developer will initiate and coordinate a financing program for Minority Tenants and will enlist the participation of local banks, local businesses, the SBA, and local, :;tote and federal business development assistance agencies. As part of this program, Developer will provide cash grants as tenant allowances to fund a portion of the startup, inventory, leasehold improvement and capital equipment costs. Developer shall negotiate the amount of such grants on a Tenant -by -Tenant basis, taking into account such factors, among others, as a Tenant's financial net worth and equity contribution, size and use of the prospective leasehold premises, the estimated cost of Tenant Improvements, the estimated cash flow for the prospective new business, and the terms and conditions of debt and equity financing then available from all other sources to the prospective Minority Tenant, and the amount of cash grants made to comparable Minority merchants in other projects developed by affiliates of The Rouse Company, and the amounts budgeted for this purpose for the Project. The parties hereto recognize that neither the goals set forth in Section 4.1 nor -10- 84-1483 the economic viability of the Project require that every Minority Tenant in the Project receive a cash grant from Developer. The parties also agree that each prospective Minority Tenant obtaining financing through this program will be required to contribute, and to demonstrate the ability to contribute, an appropriate amount of the start up costs of the new business as equity. h. Where needed to assist prospective Minority Tenants to establish and maintain new businesses at the Project, Developer will provide technical assistance using personnel stationed at Developer's field leasing office in the City of Miami or assigned as necessary from the home office of Developer's parent, The Rouse Company, as follows: (i) Developer's financial personnel working with local minority business development assistance groups, will assist Minority Tenants in preparing financing applications and packages and in processing such applications through private and public lending institutions. Developer's leasing and merchandising/design personnel and consultants will work with prospective Minority Tenants and their designers, consultants, suppliers and contractors to improve store design and layout and merchandising presentation, to reduce store and improvement costs where feasible, and to expedite store construction and equipment delivery where feasible. ARTICLE V FOUNDATION Section 5.1 Purpose. The Developer shall establish or cause to be established the Foundation for the following purposes: 84-1483 a. Creating and administering a loan guaranty program for venture capital loans to Minority Business Enterprises, b. Creating a vocational/educational scholarship fund for Minorities, and c. Providing technical assistance to local community development corporations engaged in economic development, such as the Miami -Dade County Chamber of Commerce and Latin Chamber of Commerce, in the form of management, legal, accounting, business development, such as counseling and training, and other related services; to assist the community development corporations in developing adequate support systems; and the coordination and integration of resources towards economic development of Minority Business Enterprises. Section 5.2 Establishment. The Foundation shall be established no later than six (6) months prior to the Opening Date. The Foundation shall have the status of a non-profit organization under Section 501(c)(3) of the Internal Revenue Code. The Foundation shall have a board consisting of fifteen (15) directors with one-third of the directors appointed by the Developer, one-third of the directors appointed by the City Commission and one-third of the directors representing community organizations and elected by the balance of the board. The City shall not be required to appoint its five (5) Board members until such time as the Developer shall have appointed all five (5) of its Board members. Section 5.3 Foundation Contribution. Developer agrees to pay to the Foundation, ten percent (10%) of Net Income Available for Distribution (as the term is defined in the Retail Lease) or $100,000, whichever is greater ("Foundation Contribution"). The minimum $100,000 payment shall be made in equal quarterly installments commencing on the Rent Commencement Date (as defined in the Retail Lease), and ending at the end of the term of the Retail - 12 - Lease. The Foundation Contribution shall be adjusted at the end of each Rental Year (as defined in the Retail Lease) based upon the Annual Financial Statement. If the Annual Financial Statement shall disclose a liability for the Foundation Contribution in excess of the amount paid by Developer for the period in question, Developer shall promptly pay such additional Foundation Contribution to the Foundation. Notwithstanding the foregoing, should the Foundation cease to be a 501(c)(3) tax-exempt organization, the Foundation Contribution shall either (i) be placed in an interest bearing escrow account and paid to the Foundation at such time as the Foundation shall satisfactorily prove to Developer that it has qualified as a 501(c)(3) tax-exempt organization or (ii) at the written request of the City, be paid to such other non-profit organization qualified as a 501(c)(3) tax-exempt organization which is reasonably acceptable to Developer and which has goals and purposes similar to the Foundation. The Foundation Contribution shall be the only financial obligation that Developer shall have to the Foundation or such other non-profit organization specified in (ii) above. ARTICLE VI TENANT EMPLOYMENT OPERATIONS Section 6.1 Tenant Employment. Developer agrees to exert diligent, good faith efforts to work with. Tenants in the Project to attain a Tenant employment goal for Minorities of seventy-five percent (75%) of tenant employment openings. While it is recognized that Developer cannot require Tenants to meet any particular hiring quotas, Developer shall: a. Work with the Miami Job Development Program and Private Industry Council personnel to establish a referral service to be located at the Project 84-1483 - 13 - site to take applications, scr een applicants and refer prospective Minority employees to Tenants, office facilities at or near b. Provide the referral service with Project site, during the construction period, the Prof the employment needs of Tenants C. Provide a coordinator to survey such in to as soon as Possible after leases are signed and to provide the referral service, and the availibility of the referral service as a d. Advise Tenants of source for meeting potential employment needs. er Em to ment. Developer agrees to use its Section 6.2 Develop five faith eff orts to hire Minorities for at least se diligent, good venty- operation positions and for at least fifty percent (75%) of its project o P With regard to percent (5 p�) of key management positions of the Developer• good faith efforts management positions, the Developer's diligent, go ro ect these key g positions in the areas of p shall include identifying five supervisory P qualified management, engineering, maintenance and promotions to be filled by Minorities recruited from the Miami area. ARTICLE VII MINORITY COMMIT TEE On or before 12O days following execution of the Lease Agreement, ad hoc minority advisory and assistance committee Developer will establish an Minority ++ consisting of responsible representatives of ate (,,minority Committee ) overnment agencies, and the media. From the d and other community groups, 9 Date, Developer will meet with the of this Agreement until the Opening The Minority Committee t The on not less than a quarterly basis. Minori Y 84-1483 _14- will (a) advise Developer on additional means and methods of accomplishing t� Developer's goals as set forth herein; (b) assist Developer in communicating information to the Minority community concerning opportunities for Minority participation in the development, construction, leasing and management of the Project; (c) review on a regular basis Developer's progress with the minority participation program. The Minority Committee shall meet at Developer's field office in the City of Miami. Developer will maintain minutes of the Committee's meetings at its field office in the City of Miami available for inspection by the City and the members of the Committee upon reasonable notice. ARTICLE VIII MISCELLANEOUS PROVISIONS rvr-� Section 8.1 Florida and Local Laws Prevail. This Agreement shall oe govcrned by the laws of the state of Florida. ' Section 8.2 Conflicts of Interest; City Representatives Not 1 Individually Liable. No member, official, representative, or employee of the F ± City or the City Manager shall have any personal interest, direct or indirect, in this Agreement, nor shall any such member, official, representative or employee participate in any decision relating to this Agreement which affects his or her personal interest of any corporation, partnership or association in w which he or she is, directly or indirectly, interested. No member, official, F 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. - 15 - 84-1483 Section 8.3 Notice. A notice of communication under this Agreement by either the City or the City Manager, on the one hand, to Developer, or, on the other hand, by Developer to the City or the City Manager shall be sufficiently given or delivered if dispatched by registered or certified mail, postage prepaid, return receipt requested or given by hand or other actual delivery to such party; and j a. Developer. In the case of a notice or communication to Developer, if addressed as follows: General Counsel a Bayside Center Limited Partnership =' 10275 Little Patuxent Parkway Columbia, Maryland 21044 b. City Manager. In the case of a notice or communication to the City of the City Manager, if addressed as follows: City of Miami, City Manager 3500 Pan American Drive Miami, Florida 33133 or if such notice is addressed in such other way in respect to any of the foregoing parties as that party may, from time to time, designate in writing, dispatched as provided in this Section 8.3. Section 8.4 Parkinq Garage_ Agreement. Notwithstanding any other provision of this Agreement or the Lease to the contrary, the goals set forth in Article IV shall not apply to the operation of the Parking Garage and the surface parking to be constructed on Area B Surface Lot pursuant to that certain management agreement to be entered into between Developer and the Department of Off -Street Parking. Section 8.5 Titles of Articles and Sections. Any titles of the several parts, Articles and Sections of this Agreement are inserted for - 16 - 84-IL483 convenience of reference only and shall be disregarded in construing or interpreting any of its provisions. Section 8.6 Counterparts. This Agreement is executed in six (6) counterparts, each of which shall be deemed an original, and such counterpart shall constitute one and the same instrument. Section 8.7 Successors and Assigns. Except to the extent limited �t elsewhere in this Lease, all of the covenants, conditions and obligations i' contained in this Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the City and the Developer. Section 8.8 Records. Developer shall maintain at its field office in the City of Miami records to enable the City to monitor Developer's performance under this Agreement and will permit the City to inspect such k records upon reasonable notice. Section 8.9 Estoppel Certificates. The City and Developer shall at any time and from time to time, within thirty (30) days after written request the other, execute, acknowledge and deliver to the other party ,by which has requested the same or to any prospective Leasehold Mortgagee, assignee or Subtenant designated by Developer a certificate stating (i) this t Agreement is in full force and effect and has not been modified or amended in " any way, or, if there have been modifications, identifying such modification agreement, and if this Agreement is not in full force and effect, the r certificate shall so state; (ii) this 'Agreement as modified represents the sr a entire agreement between the parties, or, if it does not, the certificate should so state; (iii) the dates on which this Agreement took effect and if applicable,. terminated; (iv) all conditions under this Agreement by the City or Developer, as the case may be, have been satisfied and, as of the date of - 17 - 84-1483 such certificate, there are no defaults by the City or the Developer, as the case may be or if such conditions have not been satisfied or if a party is in default, the certificate should so state. The party to whom any such certificate shall be issued may rely on the matters therein set forth and thereafter the party issuing the St same shall be estopped from denying the veracity or accuracy of the same. Any certificate required to be made by the a City pursuant to this paragraph may be made on its behalf by the City Manager. ARTICLE IX DISPUTES If a dispute shall arise between the City and the Developer under this Agreement including, but not limited to, whether or not the Developer has made diligent, good faith efforts to meet the goals set forth herein, such dispute shall be resolved by an Arbitrator selected according to the provisions of Section 10.5 of the Lease. The Arbitration shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association. If the Arbitrator shall determine that Developer has failed to make diligent, good faith efforts to meet the goals set forth herein, the Arbitrator may award monetary damages to the City in such amounts as the Arbitrator determines to be appropriate, considering the nature, extent and wilfulness of Developer's failure. Developer shall have 60 days after the Arbitrator's award and prior to the effective date of the damage award in which to cure such failure. The Arbitrator may award the costs of the arbitration, including reasonable attorney fees, against the unsuccessful party to the arbitration. An Arbitrator's decision shall be final and binding upon the parties and enforceable in a court of competent jurisdiction. — la — 84-1483 The decision of the Arbitrator in a proceeding brought under this provision shall not prevent the City from bringing further proceedings under this provision arising from a continuing or different failure by Developer to use diligent, good faith efforts to achieve the goals set forth in Section 2.1; provided, however, the Arbitrator shall not make more than one award under this provision for the Developer's failure to use diligent good faith efforts arising from a particular set of facts. IN WITNESS WHEREOF, ROUSE-MIAMI, INC., the sole general partner of BAYSIDE CENTER LIMITED PARTNERSHIP, has caused this Minority Participation Agreement to be signed in its name by its Vice President and its corporate seal to be hereunto affixed, duly attested by its Assistant Secretary, and the CITY COMMISSION OF MIAMI has caused this Minority Participation Agreement to be signed by Randolph Rosencrantz, the City Manager, and duly attested to by ►;s.lph r,. Ongie, the City Clerk, on the day and year first hereinabove written. ATTEST: John W. Steele III, Assistant Secretary [Corporate Seal] Ralph G. Ong e, City Clerk APPROVED AS TO FORM AND CORRECTNESS: LUCIA ALLEN DOUGHERTY CITY ATTORNEY BAYSIDE CENTER LIMITED PARTNERSHIP By: ROUSE-MIAMI, INC., general partner By: Vice President THE CITY OF MIAMI, A MUNICIPAL CORPO- RATION OF THE STATE OF FLORIDA Randolph Rosencrantz, City Manager 84-1483 0 R. 9 k lh 0 A \iv - - - - - - - -- - - 10 1 0 l'bAY RONT PAPS � � IAV rrELgPMENT ; PROJECT t t for THE CITY OF MIAMI Miami, Florida ISAMU NOGUCHI - SCULPTOR NEW YORK , NEW YORK FULLER & SADAO PC. - ARCHITECTS LONG ISLANOCITY, NEW YORK PANCOAST ALBAISA - ASSOC. ARCHITECTS MIAMI, FLORIDA - SEYMOUR HENDERSON ROSENBERG SCULLY - LANDSCAPE ARCHITECT SOUTH MIAMI, FLORIDA DE ZARRAGA & DONNEL INC. - STRUCTURAL ENGINEER CORAL GABLES, FLORIDA DAVID VOLKERZ & -ASSOC . - MECH/ELEC & CIVIL ENGINEER MIAMI, FLORIDA No. Dst• Revision I 25 MAIR GENERAL REVI SfON a i �T Vl jj� IN 61 .. 4w i-..yt / � J / •/f. t Y ,�44'1 �• .. 3 t a r fix➢ u .momP `'^.r..,,,,. ••fir' OD 47 N, oil ?r a +�� �tl v � f -' � �,��.+ � d'{° # ter i +<• r.' �' yX,y f tam' x�y`;yi 7 r t tki. E' T 3 ` <�*,. e { s ,sib T� .ts '� ; t.c }r t • � o idx ,,,.OR R2 k 4r r 6 �'} •q t + < s'_'r"t'.r�"`YIFr«»..,... ; '* lk t __R IFx k,, ..'may--• �. _ I C�iU�Nc`D CORAL S?O^lE � r c"Vr=L DRIVF 10 4 • ,' r - ,7E '.7-7 -eu.''.•��?.....,., r .. ., ....,-_..... M w . .. .. .M ��. .,x ,. .. i .. .. r ... ..1•.4..-..:.. �.'' _. ..� »«% t'1*... ...iA'i- •S?•ii., nx N- c. fin,. ', .. ''• - �' ^" 4 X' S ia. � � ,t�,e.. 1 n �U-t tTFrUTIJIzAI_ pROJ F.C'T'EG ' _ ...J-- M tgp6wo N FAQ ex%. e- - _. twry fN,; t�f vl.ry� . • r� . - - C AZOV ,.,.Ne 4, --dm � i t r' .1w�F•a a2`°irrcl.i'ftn`T 25+ �. r> �'+,-.'S•'+r.4 +T.J.,Yt"�1 .•� .d:`?1�-&dNetP-�, �� 'h �, lix 000 -r 51Jpq4(o Mom - - O�Ap EAYFRONT PARK REDEVELOPMENT PROJECT for THE CITY OF MIAMI Miami, Florida ISAMU NOGUCHI - SCULPTOR NEW YORK , NE W YORK FULLER & SADAO PC. - ARCHITECTS LONG ISLAND CITY. NEW YORK PANCOAST ALBAISA - ASSOC. ARCHITECTS j MIAMI, FLORIDA SEYMOUR HENDERSON ROSENBERG SCULLY - LANDSCAPE ARCHITECT SOUTH MIAMI, FLORIDA - 4 DE ZARRAGA & DONNEL INC. - STRUCTURAL ENGINEER CORAL GABLES, FLORIDA t' DAVID VOLKERT & ASSOC. - MECH/ELEC & CIVIL ENGINEER MIAMI, FLORIDA No. Dat• ROVISIon 25 Mr4R. OENFRAL r;pvr sroN Xy r �fx"Jilh1U � I Of"Neo 4WYAJ, WM I i WTF- S 'v4-riV4-rL)Ke -12P OM VD51 IMW ON 51-M TO *Avg t45YAL- PAI-M., z-,e-:,ep-e>t4VT 4;AW Zoo I / � /' , /, ' / 1 � '� r .. �: ... _u_____........ �.. .. ..' yy ,.Y. ..� .. .� J. +�..:,.4, p.. _ _ �.� 51 .�5 tot w v.*7.V, 9 -S tz I WOOL) FA e CIA — -, F,-rucco - c--, .' ` i -) --) I ()tj,5 LA Zr--p CLAY IMP P,Oof=ft-je (Tyr-) d /gN%T IV15 { sw� STUCCO } 41 Vqo'- )v Jtj .a � I M - / � �� ' I I � i I I � I �`�i N-. rrT ...rt t�•ir-1 �ir �ii�v + .1�ritir•Jl^: I Vmomv'd+'7 _ - B L jrr -�' _p-. .._Ai T+_E L- -.-_-.—.._._.-.--- d.. 7YFWC— — c:OA SP � . 5, -- WOUG FAfCiA -- STUGCA Mop 5 cRmI✓N • ie r _ 10* N PARK, REDEVELOPMENT PROJECT a. for _.. THE CITY OF MIAMI Wami, Florida _- ISAMU NOGUCHI - SCULPTOR NEW YORK, NEW YORK FULLER & SADAO PC. - ARCHITECTS LONG ISLAND CITY, NEW YORK PANCOAST ALBAISA - ASSOC. ARCHITECTS MIAMI, FLORIDA i SEYMOUR HENDERSON ROSENBERG SCULLY - LANDSCAPE ARCHITECT SOUTH MIAMI, FLORIDA DE ZARRAGA & DONNEL INC. - STRUCTURAL ENGINEER CORAL GABLES, FLORIDA DAVID VOLKERT & ASSOC . - MECHi ELEC & CIVIL ENGINEER MIAMI, FLORIDA No. Date Revision 14 It a wi-TH A6C=R6 -Tr-- ✓URA• S` F E�V. I � N 1 � � .. arw` .!? .7'.': YYE��..�f..a.v.:.Sd+ �� � ... ... . ,tA�- `t.,. .. .n.�c�k %-s .. F--h..+.S+:R.Y�, n.� •+n-..Y.di`���$`.1z��:kSG'�t� _ --- e �4 .P .J•r f•,lr a I! R,f�tviP G���1/N TO GXTG. � +l _ EU.M4 —7 L T s trk E4 r 5 7 � i•w'�i �T. 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YACHT ri•� '" BASIN 3 o .0. = f o v i+f ' ° M a <� �• �� �4 r � �ME 1Py�1tr1N{ _. i �<r enE M<M•4 P '�vF+t1 .•i .• 0 .4 �i t sb'b i F - 1 .biti { .F `4yo`w N ati' .b1b 1 s s �- J •bit 0 2 ,ba1 y J }r r .bb° t x o 11 .b•• FF .-blp + r 3 - r640 � .ny ry t n 06S.L OyTNT 1" BISCAYNE BAY SQ1/04 �� 4 is �` �T���� �- ;' � ��`, yu �5 +�i {� i ''[' r?9 d's' s � :r� Y Ir • 6. it r � rn r ft kfl `An� 1� 1� ) i n.n.• ���� �) t' 14- r VAit t • • .i Ir 1 i, r (e1 �t i►� "u'1 ,r S 4 y f f L • Co 1 P 1 e v— 1. i4 E � c • • % Cx 1 wI N t i---_,—.—.... � scr awa nat �n1.•c �� -- — — —` :—�— �— ,f G.•44'Qi•w(P•.All • '11'iiPLwT) � r.l 2 ST. t s; EAST EKTFMOEp E,-.T wv. �1;:� �+`.• a f ' � S � e � t MI MI AYSID ROUSE MIAMI I�1 Q a sru►bsMia ry of the ROUSE COMPANY-COLUMBIA, MD 21044 ti 9 ARCHITECTS BENjAMIly THOMPSON & ASSOCIATZK INC. i STORY STREET, CAMBRIDGE, MA 09138-(617)876-4300 TRUIX 710-3900172 ARCHITECTS & ENGINEERS SPILL18 CANDELA & PARTNZRS* INC. J, 000 WMAD NNTRANC11 - CORA16 0ABLB8. VL UM - 000W.4m Turn M.40,JL i= v: u �. ., . .. Mpy~``'�.. dti ��02 n f • •b ws^ wh°ak t „y ,l �Q9 „� r. p �_ JJJ ►: gel.! � aA w ft a w> `�`` t w Ai •i' M a > . ii w•a w i C. �' r\ 1�• et '..p n 1. 7L04 1w 1 a •. a, L� an 1 $. • ww �f' X •,s< CAd ~ y w.!! t! �en�tLt *at 1 - _ _ "_ •� , o n Gov= .- _. --s_.- J�9 �s o• `� ~ w c) .aw , i � w.a! n � .'r is • e ,. � R< </ jj b�i • N • ae ` - e � j •eat _�� J C� � ( v� ifi J„y` e a / »"oo ` 1 .1' - GowG ..t wOJ • O q O C� +art ¢. O q.a b µ � Jw i r is rc• -. • � t . t ..p ap P t ♦ !! s t 4 y \ \ lh 1 f pMT4444^_- w VFA i gISCAYNE SAY i MKI LEASE AGREEMENT between BAYSIDE CENTER LIMITED PARTNERSHIP and CITY OF MIAMI December , 1984 BAYSIDE SPECIALTY CENTER PARKING GARAGE 84--1483 TABLE OF CONTENTS PAGE ARTICLE I - EXHIBITS AND DEFINITIONS 3 Section 1.1. Exhibits . . . . . . . . . . . . . . . . . . . . . 3 3 Section 1.2. Defined Terms* . . . . . . . . . . . . . . . . . . ARTICLE II - GENERAL TERMS OF LEASE OF LEASED PROPERTY 15 Section 2.1. Lease of Leased Property to Developer. . . . . . . 15 a. Premises . . . . . . . . . . . . . . . . . . . 16 16 b. Original Term . . . . . . . . . . . . . . . . . c. Renewal Term . . . . . . . . . . . . . . . . . 16 d. Possession of Leased Property. . . . . . . . . 17 e. Conditions Precedent . . . . . . . . . . . . . 18 f. Developer Obligations Prior to Possession. . . 20 Section 2.2. Restrictive Covenants. . . 20 a. Use Prohibitions of the Leased Property. 21 b. No Discrimination. . . . . 21 c. Permitted Uses for Leased Property 21 d. Use Prohibitions of the Park Site. . . . . . . 22 e. Enforceability . . . . . . . . . . . . . . . . 23 Section 2.3. Easements. . . . . . . . ... . . . . . . . . . . . 23 23 a. Existing Easements . . . . . . . . . . ... . . b. Easements Granted to Developer . . . . . . . 25 c. Limitations on Easements Rights. . . . . . . 25 d. Duration of Easements . . . . . . . . . . . . . 27 e. Confirmatory Instruments . . . . . . . . . 27 Section 2.4. Title of Leased Property . . . . . . . . . . . . . 28 Section 2.5. Rental . . . . . . . . . . . . . . . . . . . . . . 28 28 a. Rentals Payable . . . . . . . . . . . . . . . . b. Continuous Operation . . . . . . . . . . . . . 29 c. Refinancing Proceeds . . . . . . . . . . . . . 30 d. Payment of Rental . . . . . . . . . . . . . . . 30 e. Developer's Records . . . . . . . . . . . . . 31 Section 2.6. Covenants for Payment of Public Charges by Developer . . . . . . . . . . . . . 33 Section 2.7. Approvals and Consents . . . . . . . . . . . . 34 Section 2.8. Security and Police Protection . . . . . . . . . . 35 Section 2.9. Condition of Leased Property . . . . . . . . . . . 35 Section 2.10. Roadways and Utilities . . . . . . . . . . . . 36 Section 2.11. Parking Rates . . . . . . . . . . . . . . . . . . . 36 ARTICLE III - DESIGN AND CONSTRUCTION 36 Section 3.1. Improvements to be Designed by Developer . . . . . 36 (i) 84-1483 I TA6LE OF CONTENTS ARTICLE III - DESIGN AND CONSTRUCTION (con't.) Section 3.2. Section 3.3. Section 3.4. Section 3.5. Section 3.6. Section 3.7. Section 3.8. Section 3.9. Section 3.10. ?; Section 3.11. Section 3.12. Section 3.13. Section 3.14. Section 3.15. Preliminary Plan Submission Dates. . . . . . . . . Construction Plans . . . . . . . . . . . . . . . . Facilities to be Constructed . . . . . . . . . . . Maintenance of Park Site and Leased Property . Access . Construction Period. . Progress of Construction . . . Certificate of Final Completion. . . . . . . Connection to Utilities. . . . . . . . . . . Permits and Approvals . . . . . . . . . . . . . . . Compliance with Law. . . . . . . . . . . . . Extension of Time Requirements . . . . . . . . . Alterations and Renovations. . . . . . . . . . . Art in Public Places . . . . . . . . . . . . . . . ARTICLE IV - LAND USES Section 4.1. Land Uses . . . . . . . . . . . . . . . . . . . . . Section 4.2. Character and Operation of Improvements. . . . . . ARTICLE V - ANTI -SPECULATION; ASSIGNMENT Section 5.1. Section 5.2. Section 5.3. Section 5.4. Section 5.5. Section 5.6. Section 5.7. Definitions. . . . . Purposes of Restrictions on Transfer . Transfers. . . . . rm. Notice of Transfer; Infoation as to Shareholders Effectuation of Certain Permitted Transfers. . . Transfers of the City's Interests. . . . . . . . Minority Participation in Ownership. . . . . . . . ARTICLE VI - MORTGAGEE FINANCING; RIGHTS OF MORTGAGEE Section 6.1. Leasehold Mortgage . . . . . . . . . . . . . . . . Section 6.2. No Waiver of Developer's Obligations or City' s Rights . . . . . . . . . . . . . . . . PAGE 39 40 43 43 43 44 44 45 46 46 47 48 48 48 49 49 49 49 49 51 52 54 55 56 57 57 57 67 TABLE OF CONTENTS PAGE ARTICLE VII - REMEDIES 67 Section 7.1. Events of Default - Developer. . . . . . . . . . . 67 a. Failure - Payment of Money . . . . . . . . 67 b. Failure - Performance of Other Covenants, Etc. 67 c. Bankruptcy, etc. . . . . . . . . . . . . . . . 68 Section 7.2. Remedies for Developer's Default . . . . . . . . . 69 Section 7.3. Events of Default - City . . . . . . . . . . . . . 69 a. Events of Default . . . . . . . . . . . . . . . 69 b. Remedies for City's Default. . . . . . . . . . 70 Section 7.4. Unavoidable Delay. 70 Section 7.5. Obligations, Rights and Remedies Cumulative. 71 ARTICLE VIII - PROTECTION AGAINST MECHANICS' LIENS AND f OTHER CLAIMS, INDEMNIFICATION 72 Section 8.1. Mechanics' Liens and Payments of Obligations . 72 a. Developer to Discharge Mechanics' Liens. . 72 b. Payment of Materialmen and Suppliers 73 k Section 8.2. Indemnity . . . . . . . . . . . . . . . . . . . . 73 i ARTICLE IX - INSURANCE 74 Section 9.1. Insurance Coverage . . . . . . . . . . . . . . . . 74 a. Property Insurance . . . . . . . . . . 4 b. Business Interruption Insurance. . . . . . 75 c. Automobile Liability Insurance . . . . . . . 75 d. Liability Insurance. . . . . . . . . . . . 76 e. Garage Liability . . 76 f. Garagekeepers Legal Liability. 76 g. Theft Coverage . . . . . . . . . . . . . . 76 h. Workers' Compensation. . . . . . . . . . . 76 i. Flood Insurance . . . . . . . . . . . . . . . . 76 J. Design Defect Excess Coverage. . . . . . . . . 76 k. Worker's Compensation . . . . . . . . . . . . . 77 1. Copies . . . . . . . . . . . . . . . . . . . . 77 Section 9.2. Responsible Companies - Blanket Insurance Permitted . . . . . . . . . . . . . . . 77 Section 9.3. Named Insureds - Notice to City of Cancellation. 78 Section 9.4. City May Procure Insurance if Developer Fails To Do So . . . . . . . . . . . . . . . . . 78 Section 9.5. Insurance Does Not Waive Developer's Obligations . 78 Section 9.6. Loss or Damage Not to Terminate Rental or this Agreement . . . . . . . . . . . . . . . . 79 Section 9.7. Proof of Loss . . . . . . . . . . . . . . . . . . . 79 84-1483 lk ,�, i •�° pal [ i -wi. v' a 5 :.� 7K �' , M 2 w � ,,,i ,<rAH'�,��p A 9 Yi zFa,`l r r. }t '� — t - "&�k��ift"�.'�,�� TABLE OF CONTENTS PAGE ARTICLE IX - INSURANCE (con't.) = t j IF Section 9.8. Property Insurance Proceeds. . . . . . . . . • • • 79 79 <' a. Authorized Payment . . • b. Disposition of Insurance Proceeds 80 =a for Reconstruction • • • May Have Benefit c. Lenders and Lender/Landlords 81 of Insurance Fund for Reconstruction • ` Section 9.9. Covenant for Commencement and Completion 81 Section 9.10. of Reconstruction. . . . . . . . . . . . • • • • Developer's Rights In the Event of Uninsured 82 9.11. Major Casualty . Casualty to Bayside Specialty Center • Section 84 k' ARTICLE X - CONDEMNATION Section 10.1. Entire Leased Property Taken by Condemnation Leased Property by Condemnation. 84 86 �t Section Section 10.2. 10.3. Partial Taking of Adjustment of Rent Upon Partial Taking . • • • • . 87 88 Section 10.4. Taking for Temporary Use or of Leasehold Estate. 89 Y Section Section 10.5. 10.6. Arbitration . . . . . . . . . . . . . . . • Bayside Specialty Center Taken by 91 ,. Condemnation . . . . . . . . . . . . . . ... . • y. ARTICLE XI -RIGHTS OF OCCUPANCY AND ACCESS; MAINTENANCE; 92 ram: OWNERSHIP OF IMPROVEMENTS � Section 11.1. Quiet Enjoyment. 92 92 Section 11.2. Waste. . Operation of Improvements. 92 Section Section 11.3. 11.4. Maintenance and Ownership of Improvements During Lease 93 93 Section 11.5. Surrender of Leased Property City and Developer to Join in Certain Actions. . 94 M Section 11.6. ARTICLE XII - MISCELLANEOUS PROVISIONS 94 .3; Ni- Section 12.1. No Partnership or Joint Venture. 94 94 Section 12.2. Recording, Documentary Stamps. • 95 . Section 12.3. Florida and Local Laws Prevail . Interest; City Representatives _ Section 12.4. Conflicts of Not Individually Liable . . . . . . . . . . . . . 96 96 4y Section 12.5. Notice . . . . . . . . . . . . . . . . . . . . 96 =' rF, a. Developer. . b Developer's Records. 96 9 C. City Manager . . . . . . . . . . . . . . . . 84-1483 i - ;�1 -- .f t *h TABLE OF CONTENTS PAGE ARTICLE XII - MISCELLANEOUS PROVISIONS (con't.) Section 12.6. Estoppel Certificates . . . . . . . . . . . . . . . 97 98 Section 12.7. Provisions Not Merged with Deed. . . . . . . . . • 98 Section 12.8. Titles of Articles and Sections. . . . . . . . . . 98 Section 12.9. Counterparts . . . . . . . . . . . . . . . . . . 98 d; Section 12.10. Successors and Assigns . . . . . . . . . . . . . EXHIBITS A-1 - Survey A-2 - Plat of Bayfront Park A-3 - Site Plan B - Legal Description of Garage Parcel C - Legal Description of Area B D - Construction Schedule E - Form of Guaranty of The Rouse Company F - List of Permitted Encumbrances G - Survey showing Easements and Utilties H - List of Approved Concept Plans 604F/22A -v- 84-1483 i LEASE AGREEMENT THIS LEASE AGREEMENT, made this day of December, 1984, 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. STATEMENT OF BACKGROUND AND PURPOSE The City is owner, in fee simple, subject to certain rights of others, jof all that certain land located between Port Boulevard, Biscayne Boulevard, i '? Chopin Plaza and Biscayne Bay in the City of Miami, County of Dade, State of Florida, which is collectively referred to herein as "Bayfront Park". Bayfront Park is shown on the Plat attached hereto as Exhibit A-2. The City desires tc l lease to Developer that portion of Bayfront Park more particularly shown and designated as "Garage Parcel" on Exhibit A-1 hereto to enable Developer to construct and operate a 120U car parking garage on the Garage Parcel (the "Parking Garage") as shown on Exhibits A-1 and A-3. The City is also the owner, in fee simple, of all that certain land, located immediately north of Bayfront Park and underneath and contiguous to the Port Boulevard Bridge in the City of Miami, County of Dade, State of Florida shown as Area B on Exhibit A-1. The City intends to grant an easement on a portion of such land to Dade County for the construction of a new Port Boulevard Bridge. The area which remains available for use as the off-street parking for the purpose of this Agreement shall be known as "Area B". The 84-1483 1 _ y- � t � � 1 d 0. y ,ate City desires to lease Area B to Developer to enable Developer to construct an off-street parking surface lot ("Area B Surface Lot"). The Parking Garage and Area B Surface Lot are intended to accommodate parking needs for members of the general public visiting Bayfront Park, down- town Miami and the Bayside Specialty Center (hereinafter defined) thereby eliminating traffic congestion, improving access and egress and aiding in the redevelopment of downtown Miami. The City has on even date entered into a ground lease (the "Retail Area Ground Lease") with Developer with respect to a portion of the Bayfront Park adjacent to the Leased Property upon which Developer has agreed to construct the Bayside Specialty Center (as defined in the Retail Area Ground Lease) . It is the mutual desire of the parties that the Garge Parcel and Area B be leased and demised by the City to Developer for the purposes set forth herein, 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 Parking Garage and Area B Surface Lot 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 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 1.29 to which reference is hereby made. -2- i 84-1483 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 - Plat of Bayf ront Park Exhibit A-3 - Site Plan Exhibit B - Legal Description of Garage Parcel Exhibit C - Legal Description of Area B Exhibit D - Construction Schedule Exhibit E - Form of Guaranty of The Rouse Company Exhibit F - List of Permitted Encumbrances Exhibit G - Survey showing Easements and Utilities Exhibit H - List of Approved Concept Plans Section 1.2 Defined Terms. As used herein the term: "Acceptable Operator" means an entity experienced in parking garage management possessing the qualifications, good reputation, financial resources and adequate personnel necessary for the proper performance of all of Devel- oper's obligations under this Lease in a manner consonant with the quality, reputation and economic viability of the Leased Property and Improvements. - 3 - 84-1483 "Acceptable Operator's Agreement" has the meaning ascribed to it in s subclause (iv) of Section 6.1(c) . "Acceptable Purchaser" has the meaning ascribed to it in Section 5.3(d) . "Additional Design Costs" has the meaning ascribed to it in Section 3.1. "Additional Initial Costs" has the meaning ascribed to it in Section 3.1. "Additional Rental" means any and all payments required of Developer to the City by the terms of this Lease other than Rental. z "this_ Agreement" or this Lease", means this Lease Agreement, as the same may be modified or amended from time to time. "Annual Basic Rental" has the meaning ascribed to it in subclause (i) of Section 2.5(a) . "Annual Additional Rental" has the meaning ascribed to it in subclause (i) of Section 2.5(a) . "Annual Percentage 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 B" has the meaning ascribed to it in the Statement of Background and Purpose. "Area B Surface Lot" 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 84-IL483 - 4 - Accounting Principles and Generally Accepted Auditing Standards as promulgated by the American Institute of Certified Public Accountants. "Auditor" means Peat, Marwick, Mitchell do 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. "Bayfrant 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. "Capital Improvements" means (a) any addition to the Parking Garage or the construction of any additional portion of the Parking Garage or other construction in, upon or constituting part of the Garage Parcel (i) occurring subsequent to the date on which the Parking Garage 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 and (b) any addition to or replacement of the Area B Surface Lot or other construction in, upon or constituting part of Area B (i) occurring subsequent to the date on which the Area B Surface Lot 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. 84-1483 - 5 - "the City" has the meaning ascribed to it in the opening paragraph of this Agreement. "the City Manage r" has the meaning ascribed to it in the opening paragraph of this Agreement. "City Storm Sewer Easement" has the meaning ascribed to it in Section 2.3(a) . "Completion Date" means that date on which the City Manager is required to issue the Certificate of Final Completion pursuant to Section 3.9 hereof. "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). "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 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 Improvements to the holder of any Leasehold Mortgage (or the nominee of any such holder) by deed in lieu of foreclosure, or in the event of the termination of any lease or sublease arising out of a Sale-Subleaseback Transaction 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. - 6 - 84-1483 j "Default Rate" has the meaning ascribed to it in subclause (d) 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 the general partner of Developer satisfac- tory 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 Parking Garage and Area B Surface Lot including (without limitation or duplication): (1) Design, planning, architectural and engineering fees, costs and expenses (including, without limitation, Additional Design Cost presentation costs and expenses; surveys and geotechnic tests; testing and inspections; and garage consulting costs; qa. (2) The cost of labor, equipment, supplies, materials and services paid to contractors and subcontractors utilized in connection with construction of the Parking Garage and Area B Surface Lot; *,• (3) Fees and expenses paid to contractors and subcontractors; (4) Legal and accounting costs, fees and expenses; TS- (5) Interest and other financing costs incurred with respect to the issuance and sale by the City of industrial development bonds pursuant IM to the Ch. 159, Florida Statutes, including all required reserve accounts and funds; interest, commitment fees, points and other financing costs incurred in arm's length transactions; and interest on money borrowed by Developer from its parent, an affiliated entity or subsidiaries in - 7 - connection with the development of the Parking Garage and Area B Surface Lot at a cost not greater than the borrowing cost incurred by such parent, affiliate or subsidiary; (6) The cost of property, liability, worker's compensation, title and other insurance; (7) The cost of obtaining permits and licenses, and all Public Charges hereinafter defined; (8) Utility relocation costs and expenses and tap -in fees or other fees for connection to utility systems and utility services during 1 construction; (9) All reasonable and prudent costs and expenses incurred in j connection with the negotiations and execution of this Agreement; 1 (10) The cost of initially furnishing and equipping the management offices at the Parking Garage; (11) The allocable portion of the cost of providing, furnishing, equipping and operating a field office at or near the Leased Property during construction of the Parking Garage and Area B Surface Lot, 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 allocable portion of the salaries, fringe benefits, payroll taxes, travel and other expenses, and costs of all field office personnel employed in connection with the Parking Garage and Area B Surface Lot; (13) The allocable cost of pre -opening management, advertising and publicity and the allocable cost of any opening event or celebration including advertising and publicity of same; 84-IL483 -8- (14) The allocable portion of the central office overhead cost of The Rouse Company or any affiliate related thereto with respect to the development of the Parking Garage and Area B Surface Lot; (15) The cost of supervising and coordinating construction of the Parking Garage and Area B Surface Lot ("Construction Management Fee"); (16) Additional Initial Costs; and (17) Other reasonable costs and expenses which are of a type usually and customarily incurred in connection with development of a Parking Garage and Area B Surface Lot. "Developer Equity Investment" means 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 construc- tion of the Developer Improvements, and (iii) Operating Losses (except to the 1 extent recouped under Section 2.5a(3)) less (iv) the net proceeds actually received by Developer from any and all Leasehold Mortgages or Sale -Leaseback Transactions of the Developer's estate in the Leased Property and the Improvements. "Developer Utility Easement" has the meaning ascribed to it in the subclause W of Section 2.30). "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. "Expansion Levels" has the meaning ascribed to it in Section 3.1. - 9 - 84-1483 "Fair Market Value" means the price, as of the date in question, which a seller, willing but not obligated to sell, would accept for the City's reversionary interest in the Leased Property and the Improvements or the Developer's estate in the Leased Property and the Improvements (as the case may be), and which a buyer, willing but not obligated to buy, would pay therefore in an arm's length transaction. "Final Sub -Structure 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' "Garage Parcel" has the meaning ascribed to it in the Statement of Background and Purpose. "Grand Prix Agreement" has the meaning ascribed to it in Section 2.2(c). "Improvements" shall mean all existing and future structures at the Leased Property, including, but not limited to, the Parking Garage and Area 8 Surface Lot. "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). "Leased Property" has the meaning ascribed to it in Section 2.1. "Leasehold Mortgage" has the meaning ascribed to it in Section 6.1. "Lender" shall have the meaning ascribed to it in subclause (b) of Section 6.1. "Lender/Landlord" means a lender, and any successor, assignee, transferee or designee of such lender, to which, in connection with the - to - 84-1483 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. "Management Costs" means (without duplication) Developer's reasonable and prudent costs of performing management services for the Leased Property, which services shall include the following: (i) supervision of the performance of all of Developer's obligation under this Lease and retention of a prof es- sional management entity acceptable to the City for the operation and manage- ment of the Parking Garage and Area B Surface Lot; (ii) formulation of all budgets for operation of the Leased Property; (iii) 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 Leased Property, and supervision of the payment of all obligations related to the operation of the Leased Property; (iv) development of programs for the promo- tion of the Leased Property (including advertising and publicity programs); (v) management of the Leased Property, including all normal legal fees, accounting, auditing, transportation and travel salaries, home office expenses of the Developer, The Rouse Company and affiliates, and the salaries, benefits and expenses of all personnel related to the supervision and administration of management services, including all supplies and materials requires in connection therewith; and (vi) 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 consumer surveys, legal and other proceedings involving Public Charges, outside CPA audits relating to the Leased Property, -11- 84-1483 plans for minor alteration of the Leased Property, proceedings relating to condemnation or eminent domain, and legal and other costs of extraordinary legal proceedings concerning the Leased Property, all whether performed by on -site personnel or independent third parties. "Negative Cash Flow" means the sum of Operating Losses for any given period plus Debt Service Payments for the same period. "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 determined on an accrual basis in accordance with generally accepted accounting principles. "Opening Date" means the earlier of (1) the date upon which the Parking Garage is open for business with the general public, or (2) the thirtieth day following issuance of the Certificate of Final Completion. "Operating Expenses" means (without duplication) (1) all reasonable and prudent expenditures for the Improvements according to the 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 operation, ownership or management of the Leased Property and the Improvements or any part of either, including (without limitation) payroll and payroll expenses, management fees, business taxes and Public Charges, supplies, license and permit fees, repair and maintenance expenses, costs and expenses of cleaning, maintaining and repairing the common area and Leased Property, utility charges, insurance premiums, auditing and professional fees and expenses, publicity costs and _ 12 _ 84-1483 a K� expenses, and (2) annual Rental. In no event shall depreciation constitute a portion of Operating Expenses. "Operatira Income" means all moneys, paid or payable to Developer for parking related transactions made and for services rendered by Developer in the operation of the Improvements regardless of when or where the services are rendered, whether on a cash or preauthorized credit basis, including (without limitation) all parking rates and fees, all income derived from vending machines, telephones, pay toilets or other sources located on the Leased Property, however, any sales taxes imposed by law directly paid by Developer or the City to a taxing authority, and any discounts and allowances as provided by procedures accepted and approved by the City and Developer, shall be ex- cluded therefrom. Moneys payable shall also include, but shall not be limited to, any and all cashier shortages, overages, and undercharges. Dishonored checks and uncollectible credit card charges shall not be included in Gross Revenues, provided that such check and credit card transactions were processed utilizing sound business procedures. If Developer shall receive insurance or condemnation proceeds or awards, the amount thereof which represents reim- bursement to Developer for items accounted for as Operating Expenses shall be deemed to be Operating Income. "Operating Losses" means the amount by which Operating Income for the applicable period is less than Operating Expenses plus Debt Service for the same period. "Original Term" has the meaning ascribed to it in clause (b) 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. - 13 - 84-1483 "Park Site" means the area comprising the Bayf ront Park but excluding the Leased Property and the Retail Parcel, all as shown on Exhibit A-2. "parking G,� ara9e_ has the meaning ascribed to it in the Statement of Background and Purpose. "Parking Rates" means the fees and rates charged by Developer to users of the Improvements. "Possession Date" has the meaning ascribed to it in Section 2.1. "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. ,k "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 a available to Developer. "Refinancing Proceeds" means the net proceeds available to Developer out of any Refinancing after deduction of (i) an amount equal to Developer's 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. "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 0 attached hereto, subject to extensions or adjustments thereto for a period equal to any delay in the occurrence in the Completion Date due to Unavoidable Delays, as defined in Section 7.4. - 14 - 84--IL483 y� 1 "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. "Retail Area Ground Lease" has the meaning ascribed to it in the Statement of Background and Purpose. "Retail Parcel" means that certain land demised by the City to Developer under the Retail Ground Lease. "Sale-Subleaseback Transaction" means Developer's sale to a Lender/ Landord of all or a substantial portion of Developer's interest in this Lease, and the subsequent execution of a sublease ("Financing- Sublease") between Lender/Landord and Developer. "Sect�on", "subsection", "para�h", "subpara rg aph", "clause", or "subclause" followed by a number or letter means the section, subsection, paragraph, subparagraph, clause or subclause of this Agreement so designated. "Transfer" has the meaning ascribed to it in Section 5.1. 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 - 15 - 84-1483 herein, and the performance of the parties hereto of the duties and obligations on the part of each to be performed hereunder: (a) Premises. The City demises and leases to Developer, and Developer takes and hires from the City, the Garage Parcel shown on Exhibit A-1 and more particularly described in the legal description attached hereto as Exhibit B and Area B shown on Exhibit A-1 and more particularly described in the legal description attached hereto as Exhibit C, 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 contemplated pursuant to the Construction Plans. Should the parties agree a modification is required, Exhibits B and C to this Lease shall be amended accordingly. (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 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 - 16 - 84-1483 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 Dade County setting forth the beginning and termination dates of the Renewal Term, determined in accordance with this Agreement. (d) Possession of Leased Property. The City shall deliver possession of Leased Property 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 for the Improvements to be constructed on the Leased Property; (ii) The City Manager shall have received and approved evidence reasonably satisfactory to the City Manager that Developer shall have entered into final and binding arrangements for the financing of Development Costs with a Leasehold Mortgagee or Lender/Landlord; (iii) The City Manager shall have received a guarantee in form attached hereto as Exhibit E from The Rouse Company (a Maryland corpo- ration) 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 Improvements to be constructed in Leased Property; and -17- 84-1483 (iv) All governmental permits and approvals required to commence construction shall have been obtained by Developer. (v) The City and Developer shall have entered into a mutually acceptable agreement with respect to the Miamarina. The date that the City delivers possession of the Leased Property to Developer in accordance with this paragraph (d), by notice in writing, is herein called "Possession Date". t (e) Conditions Precedent. Developer shall not be obligated to take ii 55 possession of the Leased Property or to perform any other obligations under Fj this lease unless and until the following shall have occurred or have been obtained: (i) the City Manager has approved all of the Preliminary Plans for the Improvements; (ii) Developer has obtained all governmental approvals and permits necessary for construction of the Improvements; (iii) Developer shall have obtained a commitment or commitments, on terms and in form satisfactory to Developer, for the purchase of tax- exempt revenue bonds or notes for construction and long term financing of the Improvements; (iv) Developer shall obtain satisfactory evidence that the issuance of such tax exempt bonds or notes and the form of related docu- ments have been validated and all applicable appeal periods have expired; (v) The City Manager has approved all construction plans for improvements to be constructed pursuant to the Retail Area Ground Lease; (vi) The City and Developer shall have entered into a mutually acceptable agreement with respect to the Miamarina. - 18 - 84-1483 (vii) The Developer has obtained all governmental approvals and permits necessary for construction of the improvements to be constructed pursuant to the Retail Area Ground Lease; (viii) The Developer shall have obtained a firm commitment or commitments acceptable to Developer and the City for the construction and permanent financing of the improvements to be constructed pursuant to the Retail Area Ground Lease; and (ix) The City shall have provided Developer with evidence satisfactory to Developer that the development of the Parking Garage, the Area B Surface Lot and Bayside Specialty Center will not violate the Environmental Laws (hereinafter defined).. Developer and the City shall use good faith efforts to satisfy all of the aforesaid conditions precedent. It is recognized by the parties 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 on or before January 1, 1988. Developer and the City shall use good faith efforts to satisfy all of the aforesaid conditions precedent. It is agreed that notwithstanding the City's agreement to use good faith efforts to satisfy the aforesaid conditions precedent, it is agreed that 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 (ix) 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 - 19 - 84-1463 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. (f) Developer Obligations Prior to Possession. Notwithstanding anything herein to the contrary, until possession of the Leased Property shall have been delivered to Developer pursuant to the provisions of clause (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 Leased Property as to which possession shall not have been so delivered to the extent that such possession shall be reasonably required for the performance of such obligation. 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 contained 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, however, that the development and opera- tion of the Leased Property and the Improvements in a manner which is in the best interests of both parties may from time to time require the confirmation, clarification, amplification, or elaboration of this Agreement in order to deal adequately with circumstances which may not now be foreseen or anticipated - 20 - 84-1483 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. (f) Developer Obligations Prior to Possession. Notwithstanding anything herein to the contrary, until possession of the Leased Property shall have been delivered to Developer pursuant to the provisions of clause (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 Leased Property as to which possession shall not have been so delivered to the extent that such possession shall be reasonably required for the performance of such obligation. 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 contained 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, however, that the development and opera- tion of the Leased Property and the Improvements in a manner which is in the best interests of both parties may from time to time require the confirmation, clarification, amplification, or elaboration of this Agreement in order to deal adequately with circumstances which may not now be foreseen or anticipated - 20 - 84-1483 by the parties. The parties reserve unto themselves the right to enter into such interpretive, implementing or confirmatory agreements from time to time as they may deem necessary or desirable for any such purpose without obtaining the consent or approval of any person or entity not a party to this Agreement except as may be expressly otherwise provided in this Lease or by law. (a) Use Prohibitions of the Leased Property. the Leased Property hereby demised shall not be used for any unlawful or illegal business, use or purpose, or for any business, use or purpose which is immoral or disreputable 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 i certificates of occupancy (or other similar approvals of applicable governmental authorities). (b) No Discrimination. No covenant, agreement, lease, conveyance or other instrument shall be effected or executed by Developer, or any of its successors or assigns, whereby the Leased Property or any portion thereof is restricted by Developer, or any successor in interest, upon the basis of race, color, religion, sex 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. which may be permitted by the Developer and City pursuant to the Grand Prix Agreement (as defined in the Retail Area Ground Lease), the only uses permitted on the Leased Property are parking open to the general public and office (provided that such office uses shall be limited to management offices). _ 21 _ 84-1483 (d) Use Prohibitions of the _Park Site. The parties acknowledge and agree that the Leased Property is adjacent to the Park Site and that, conse- quently, the manner in which the Park Site 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, for itself, its successors and assigns, covenants and agrees with Developer, its successors and assigns that: (i) Except as may be otherwise permitted pursuant to the Management Agreement dated June 4, 1981 between the City and New World Marinas, Inc., with respect to the Miamarina, the City will not permit any use of the Miamarina, the baywalk or the docks on the Park Site which would detract from the use of the Leased Property; (ii) The City will not, without first obtaining the written consent of the Developer, (1) construct any fence or barrier between the Park Site and the Leased Property, (2) make or permit substantial alteration in the Park Site or permit any structure on the Park Site which will substantially adversely affect the access to and from the Leased Property, or (3) be inconsistent with the use of the Leased Property; (iii) The City will not sell the Park Site 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 under Section 5.6; (iv) Subject to certain rights of the City with respect to Area A-4 and A-5 set forth in §2.1(a) of the Retail Lease, and except for any temporary use 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 -22- 84-1483 (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 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 use and enjoyment of the Leased Property. (e) Enforceability. It is intended and agreed hereby that the restrictive covenants contained in this Section 2.2 shall be binding upon the City and the Developer, their successors and assigns, and are covenants running with the land and binding upon the successors in interest of the City and Developer respectively, as the case may be, and shall be for the benefit and in favor of, and enforceable by, the City and Developer respectively, as the case may be; provided, however, that such covenants shall be binding on Developer, and the City, and their respective successors in interest and assigns, only for such period as each respectively shall have title to the Leased Property, the Park Site or any part of either. 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 F. (b) Easements Granted to Developer. The City grants unto Developer, its successors and assigns the following: - 23 - 84-1483 M. (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 by the City which is not a dedicated street, in the location shown therefore on the approved Construction Plans or in such other locations as may be approved by the City Manager from time to time; (ii) the non-exclusive right and easement (the "Developer Vehicular Access Easement") for the unobstructed access for users of the Improvements, and for service and emergency vehicles (A) to and from the Leased Property to Biscayne Boulevard, (B) over and across Port Boulevard to Biscayne Boulevard and over and (C) across the Park Site and the Retail I Parcel to Biscayne Boulevard (as Port Boulevard and Biscayne Boulevard are now and hereafter constructed), in the locations shown therefore on Exhibit a 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 immedi- ately adjacent to the Leased Property, Park Site, or the Retail Parcel the area of land and improvements permitted to be used as the Developer Access Easement Area shall include any strips of land separating Port Boulevard or Biscayne Boulevard from either the Leased Property, or Park Site, or Retail Parcel; 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 including (without limitation) events permitted pursuant to the Grand Prix Agreement, for the unobstructed pedestrian access to and from the Leased Property by Developer to all of the Park Site now and hereafter existing - 24 - 84-IL483 including, but not limited to the baywalks, sidewalks, playgrounds and other open spaces. (iv) 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; and (v) 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 Parking Garage and Area B Surface Lot; It is the intent of this Agreement that all 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 5 Plans, no building or other structure shall be erected on the surface of same without the prior written consent of the Dade County Water and Sewer Authority, 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 Improvements, Developer will use its diligent efforts to cluster underground utility lines and to minimize other construction below the surface of the easement area; - 25 - 84-1483 (2) With respect to the portion of the City Storm Sewer Easement area which may lie directly beneath the Parking Garage, 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 Leased Property affected thereby. (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 (B) shall not carry on any construction, maintenance or repair activity in the easement area in such manner as to unreasonably interfere with the use and enjoyment of the servient tenement, 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. 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; - 26 - 84-IL483 (5) promptly upon the completion of any such construction, repair or maintenance activity, the party having the benefit of such i 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 1 City Storm Sewer Easement, and any other utility easement area which may be located under the Improvements within a reasonable time 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 Prom 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 G is a survey showing all easements and utilities 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 t 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 ano for each Renewal Term and the term of any new lease made pursuant to Sections 6.1 and 6.2 hereof. (e) Confirmatory Instruments. Each party covenants and agrees that from time to time at the request of the other party, it shall execute and deliver such additional documents or instruments confirming the rights and easements granted and reserved in this Section 2.3 or more precisely fixing _ 27 _ 84-148.3 their location as such requesting party shall deem to be necessary or desirable. The City Manager is hereby authorized and empowered on behalf of the City to execute and deliver, from time to time, any such confirmatory documents or instruments. Section 2.4 Title of Leased Property. The City represents, covenants and warrants that it has good and merchantible fee simple title to the Leased Property and all of the improvements thereon, which title is free and clear from all covenants, easements, liens, clouds of title or other restrictions except for those listed in Exhibit F. Section 2.5 Rental. (a) Rentals Payable. During each Rental Year during the Original Term and each Renewal Term hereof, Developer covenants and agrees to pay the City annually as rental ("Rental") for the Leased Property, the following: (1) the annual sum of Ten Thousand Dollars ($10,000) ("Annual Basic Rental"), (2) to the extent there is Net Income Available for Distri- bution, the annual sum of Eighty Thousand Dollars ($80,000) ("Annual Additional Rental"), and (3) Fifty percent (50%) of the remaining Net Income Available for Distribution, if any, after payment of the Annual Basic Rental, Annual Additional Rental, and after Developer has been reimbursed up to Ninety Thousand Dollars ($90,000) for Negative Cash Flow previously paid by Developer ("Annual Percentage Rental"). (b) Continuous Operation. Developer covenants and agrees, subject to the Grand Prix Agreement, to cause the Parking Garage and Area B Surface Lot to be continuously operated consistent with prudent business practices and the standards of operation set forth in Section 4.2 hereof (considering twelve -28- 84-1.483 (12) month use) in order to achieve a reasonable level of profitability. In connection therewith, Developer covenants and agrees that from and after the Opening Date, Developer shall keep the Parking Garage and Area B Surface Lot open for business with the general public at least three -hundred sixty (160) days a year. Developer agrees that, at all times during the Original Term or any Renewal Term, Developer shall not operate the Parking Garage or the Area g Surface Lot for its own account but shall retain an Acceptable Operator to operate the same. The City acknowledges that an Acceptable Operator would include any parking garage manager which operates a parking system of at least 10,000 parking spaces in Dade County on a not -for -profit basis, and Developer agrees to initially retain such Acceptable Operator; provided, however, if such Acceptable Operator is not available or if such Acceptable Operator is in default of its management agreement with Developer, Developer may retain another Acceptable Operator. The parties acknowledge that the Developer is not as of the date of this Agreement qualified as an Acceptable Operator, but nothing in the provisions of this Lease shall prohibit the Developer from qualifying as an Acceptable Operator. If this Lease should be transferred to an Acceptable Operator or an Acceptable Purchaser pursuant to Article VI hereof, the provisions of this Section 2.5(b) shall apply in equal force and affect as such parties after such transfer. (c) Refinancing Proceeds. In the event that Developer proposes to engage in any Refinancing with respect to the Leased Property 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 trans- actions 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 - 29 - 84-1483 Available for Distribution for three (3) full Rental Years next following consummation 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 Developer shall pay or cause to be paid to the City, upon consummation of such Refinancing, an amount equal to fifty percent (50%) of the Refinancing Proceeds and thereafter Rental payments shall be determined by adjusting Debt Service Payments and Developer's Equity Investment to reflect such Refinancing; or (ii) not to participate in such Refinancing, in which case (1) no portion of such Refinancing Proceeds shall be payable to the City and Rental with respect to such portion of the Leased Property that is refi- nanced 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 the Leased Property 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 (2) 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. (d) Payment of Rental. Rental shall commence to accrue on the Rent Commencement Date. Rental shall be payable in equal monthly installments in advance on the first day of each full calendar month following the Rent Com- mencement Date during the term of this Lease, the first such payment to include also any prorated Rental for the period from the Rent Commencement Date to the - 30- 84-1483 first day of the full calendar month thereafter. 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 tiff 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 Rental at the end of each Rental 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 Rental, Developer shall pay the City the amount of the deficiency within thirty (30) days of the City's receipt of the report. (e) Developer's Records. For the purpose of permitting verification by the City of any amounts due on account of Rental, Developer will keep and preserve or cause the Acceptable Operator to 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 Parking Garage and Area B Surface Lot which shall disclose all information required to determine Development Costs, Annual Basic Rental, Annual Additional Rental, Annual Percentage Rental, Oper- ating Income 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 - 31- 84-1483 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 com- mencing 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 Rental, Annual Additional Rental, Annual Percentage Rental, 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 or certified by the appropriate authorized officer of the Acceptable Operator stating specifically that such officer has examined the report, that such officer's examination included such tests of the 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 by or for the City, 84-1483 - 32 - f 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 demon- i strates a discrepancy of more than three percent (3%). Developer shall provide the City with an annual Audited Financial I 1 Statement, certified by an independent Certified Public Accountant, within one hundred twenty (120) days after the close of each Rental Ysar which shall be subject to the audit provisions of the previous subparagraph. Notwithstanding anything to the contrary in this Lease for so long as the City of Miami Department of Off -Street Parking is acting in the capacity as Acceptable Operator, (i) Developer's obligations to perform under this Lease are limited to and conditioned upon the City of Miami's Department of Off -Street Parking's performance of those obligations on behalf of Developer pursuant to the parking garage management agreement, and (ii) if the City of Miami Department of Off - Street Parking is in default of its obligations under the parking garage management agreement and such failure results in a default under this Lease, such default shall not be deemed to be an Event of Developer's Default. 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 g 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 4� being hereinafter referred to as "Public Charges") levied, assessed or imposed { by any public authority against the Leased Property, including all improvements - 33 - 84-1483 thereon in the same manner and to the same extent as if the same, together with all improvements thereon, were owned in fee simple by Developer; provided, that Developer's obligation to pay and discharge Public Charges levied, assessed or imposed against or with respect to Leased Property shall not commence until the Possession Date. Notwithstanding the provisions of this Section 2.69 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 the Retail Area Ground Lease. The City retains all its rights to impose special assessments or other public charges for all other purposes. Developer, upon written request, shall furnish or cause to be furnished, to the City Manager, official receipts of the appropriate taxing authority, or other proof satisfactory to the City Manager evidencing the payment of any Public Charges, which were delinquent or payable with penalty thirty (30) days or more prior to the date of such request. Section 2.7 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. - 34 - 84-1483 Section 2.8 Secu,� ity and Police Protection. Developer shall have the responsibility for providing all security and protection for the Improvements. Developer and City may enter into an agreement requiring the city to provide such security and protection with respect to same. If the City and Developer are unable to enter into such agreement, the Developer shall be responsible for providing security and protection throughout the Improvements. The City shall provide the same security and police protection for the Park Site 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 Condition of Leased Property. On the Possession Date the City shall deliver to the Developer possession of the Leased Property, free of any and all tenancies or other rights or claims of rights to its use and occupancy. Prior to the Possession Date, the Leased Property 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 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. -35- 84-1483 Section 2.10 Roadways and Utilities. The City shall without expense to Developer or public assessment against the Leased Property, provide for the abandonment of all public streets and rights of way within the Leased Property. The City shall cooperate with and assist the Developer in the termination or transfer to the Developer, of all existing easement rights with respect to water mains, sanitary sewers, storm drains, conduits, gas and electric or steam distribution lines and fire alarm, traffic and phone systems, if any, in the Leased Property, except for the County Easement and the City Storm Water Easement, and the transfer to Developer of all vacated City streets. The City shall also transfer to Developer all easements and rights of way at the Leased Property within its control. All termination, abandonment, transfer and relocation, as applicable, to be done shall be done or performed in accordance with provisions of this Section 2.10 with respect to the Leased Property as rapidly as practicable and in a manner which will coordinate in a reasonable manner with construction of the Improvements. Section 2.11 Parking Rates. Parking Rates shall be established by Developer from time to time and shall be subject to the City Manager's prior written appoval. ARTICLE III DESIGN AND CONSTRUCTION Section 3.1 Improvements to be Designed by Developer. The Parking Garage and Area B Surface Lot and all improvements ancillary thereto shall be designed by Developer (hereinafter referred to as the "Design"), subject to the review and written approval of the City as hereinafter set forth. The City acknowledges that prior to the execution of this Agreement, Developer has - 36 - 84-1483 submitted to the City and the City has approved the concept plans (hereinafter referred to as the "Concept Plans") for the construction of the Parking Garage and Area B Surface Lot. A copy of the Concept Plans is annexed hereto as Exhibit H. The City agrees to consult and coordinate with Developer with respect to the preparation of the Preliminary Plans and Construction Plans. Developer shall submit to the City at the times hereinafter set forth, four (4) sets of plans (hereinafter referred to as the "Preliminary Plans") for the Parking Garage and Area B Surface Lot. For the purposes hereof, Preliminary Plans shall consist of site plans and structure elevations and sufficient detail to show site planning, architectural design and parking layout, materials, building construction, landscape design, access, streets and sidewalks. Preliminary Plans shall also include (i) a proposed system of revenue control capable of being integrated with the Department of Off —Street Parking's existing system which will permit computerized monitoring of vehicle counts, monthly card customers, transient customers and fee calculation and shall also provide for daily cashier reports capable of being audited by auditors for Developer, and the City, (ii) a proposed computer controlled television security system with sufficient cameras to ensure the ability of security guard(s) to monitor the entire Parking Garage (including ingress, egress and transition areas to Bayside Specialty Center), including two-way voice communication for emergency situations, (iii) a proposed signage and graphic plan sufficient to ensure customer convenience; and (iv) a proposed plan for internal circulation areas and walkways between the Parking Garage, the balance of the Leased Property and the Bayside Specialty Center providing for maximum customer security and safety. The City acknowledges that in order to meet the schedule for construction, the Developer may submit Preliminary Plans in stages for written approval. The City shall not be required to issue 37 " 84-JL483 permits or other formal governmental approvals to Developer for a particular phase until the City has approved a site plan depicting all phases of the Parking Garage and Area 8 Surface Lot and have approved the Preliminary Plan for the particular phase for which a permit or other formal governmental approval is requested. The parties agree that the Design shall be completed by Developer in such a manner as to permit the expansion of the Parking Garage by the addition thereto of a fourth and fifth level (hereinafter called the "Expansion Levels"), which Expansion Levels shall provide for approximately 750 additional i parking spaces at the Parking Garage. The additional cost of the Design (hereinafter called the "Additional Design Costs") as a result of the addi- y''� tional Design work to be incurred with respect to the inclusion therein of the possible Expansion Levels shall in no event exceed $309000 and shall be paid by the City after approval of the Final Structural Plans. At the time that Developer shall enter into a guaranteed maximum price construction contract, Developer shall cause that portion of the Preliminary Plans that shall reflect y. additional work to be performed in order to construct the Parking Garage in a manner sufficient to permit the construction of the Expansion Levels ,i (hereinafter called the "Additional Initial Costs") to be priced separately and shall notify the City of the amount of the price for the Additional ?' Initial Costs. Developer shall use diligent and reasonable efforts to cause I its construction contractor to quote a reasonable and verifiable price with respect to the Additional Initial Costs. The City shall, within ten (10) days after it shall have received such notice, advise the Developer in writing if it desires to have the Parking Garage constructed in a manner to permit the future construction of the Expansion Levels thereon. If the City shall notify i Developer that it desires the Parking Garage to be constructed in such a 'i ,I 84-148&3 - 38 - manner, the City and Developer shall thereupon promptly negotiate and enter into an agreement with respect to the manner and method of the payment of the f Additional Initial Costs by the City as construction of the Parking Garage progresses. At any time after the completion of the Parking Garage, the City may notify Developer in writing that it is of the opinion that as a result of the occupancy level and use of the Parking Garage, it would be in the financial ;! interests of both Developer and the City to construct the Expansion Levels. The City shall obtain an independent feasibility study to analyse, among other things, the marketability of the expansion and the financial impact of the ' expansion on Operating Income and Net Income Available for Distribution. The i= City shall submit the feasibility study to the Developer for its review. If r the feasibility study should demonstrate that the expansion is economically feasible and marketable, the City and Developer agree to in good faith nego- tiate the necessary agreements related to the expansion, including (without limitation) repayment of Additional Initial Costs, reciprocal easement and use i requirements, form of management, ownership, impact upon Rental, and design and construction responsibilities. The cost of the feasibility study shall be i a borne by the City unless the Expansion Levels are actually constructed, in which case the cost shall be included as part of the development costs of the : Expansion Levels to be p paid on accordance wih any agreements entered into I; between the City and Developer. Section 3.2 Preliminary Plan Submission Dates. Developer shall i submit the Preliminary Plans to the City for written approval on or before the k time set forth for same on Exhibit 0 hereto. Upon receipt of each set of Preliminary Plans representing a certain stage of construction, the City shall review same and shall promptly (but in any event within fifteen (15) days - 39 - 84-1483 after such receipt) give Developer written notice of its approval or dis- approval setting forth in detail its reasons for any disapproval. The City's right to disapprove the Preliminary Plans submitted shall be limited to matters depicted in the Preliminary Plans which do not conform substantially to the Concept Plans or previously approved Preliminary Plans for other stages of the Parking Garage and Area 8 Surface Lot or new elements not presented in the Concept Plans or matters which are violations of applicable governmental statutes, ordinances, codes, plans, laws or regulations. If no written response is delivered to Developer within fifteen (15) days after submission of such Preliminary Plans, or any resubmission thereof as hereinafter provided, they shall be deemed approved, except that no violation of applicable governmental statutes, ordinances, codes, plans, laws, regulations, shall be deemed waived thereby. In the event of a disapproval, Developer shall, within fifteen (15) days of the date the Developer receives the notice of such disapproval resubmit such Preliminary Plans to the City, altered to satisfy the grounds for disapproval. Any resubmission shall be subject to review and approval by the City, in accordance with the procedure hereinabove provided for an original submission until same shall be approve: by the City, provided that in any event Developer shall submit all Preliminary Plans for construction of the Parking Garage and Area B Surface Lot which satisfy all of the grounds for disapproval of which the City has given notice not later than six months from the date of this Agreement. The 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 Agreement, "Construction Plans" shall consist of final working drawings and specifications including (without limitation) the following information: (a) definitive -40- 84-1483 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 and interior appearance of the Parking Garage; (d) final specifica tions, (e) landscaping; (f) graphics; and (g) plan for conduit and raceways necessary for revenue control systems and television control system. 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 two sets of Construction Plans for the same stage provided, however, that Developer shall not be required to submit the portions of the Construction Plans con- sisting of exterior lighting, landscaping and graphics until the date that Developer is required to submit the lighting, landscaping and graphics portion of the construction plans for the Bayside Specialty Center to the City pursuant to the Retail Area Ground Lease. Upon receipt thereof, the City shall review same and shall promptly (but in any event within fifteen (15) days after such receipt), give Developer notice of its written approval or disapproval, setting forth in detail its reasons for any disapproval. The City's right to dis- approve 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 governmental statutes, 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 provided, they shall be deemed approved, except that no violations of applicable laws, statutes, ordinances, codes, or regulations shall be deemed waived thereby. In the event of a disapproval, Developer - 41- 84-1483 shall, within fifteen (15) days after the date Developer received the notice of such disapproval, resubmit the Construction Plans for that stage to the City, altered to satisfy the grounds of disapproval. Any resubmission shall be subject to review and approval by the City, in accordance with the procedure hereinabove provided for an original submission, until the same shall be approved by the City, provided, that in any event Developer shall submit all Construction Plans for the construction of the Parking Garage and Area B Surface Lot (which satisfy all of the grounds for disapproval of which the City has given written notice) not later than four (4) 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 of any Construction Plans or Preliminary Plans pursuant to this Article shall relieve Developer of any obligation it may have at law to file such Construction Plans with any department of the City or any other governmental authority having jurisdiction over the issues or to obtain any building or other permit or approval required by law. Developer acknowledges that any approval given by the City 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. Concept Plans, Preliminary Plans, Construction Plans and all work by Developer with respect to the Parking Garage and Area B Surface Lot 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. - 42 - 84-1483 Section 3.4 Facilities to be Constructed. Developer agrees to construct the Parking Garage and Area B Surface Lot on the Leased Property, at its sole cost and expense, containing the facilities more particularly described in the Construction Plans which shall conform to the covenants contained in Section 2.2 and which are referred to throughout this Lease as "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 �i provisions of Sections 6.1 and 6.2) shall maintain and keep or cause to be smaintained 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 K to the Retail Area Ground Lease, all of the property and improvements at the Park Site. 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 entered into pursuant to the provisions of 6.1 Section 6.2) shall maintain and keep or cause to be maintained and kept in good order, repair and appearance all of the property and improvements located in that portion of the Leased Property shown and designated as Developer Maintenance Area on Exhibit K to the Retail Area Ground Lease. Section 3.6 Access. Prior to delivery of possession of the Leased Property or any part thereof to Developer, the City shall permit Developer access thereto whenever and to the extent necessary to carry out the provisions of this Agreement. The City shall also permit, including (without limitation) the placement of construction trailers and staging area on or adjacent to the - 43 - 84-1483 .v 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 this Agreement. Section 3.7 Construction Period. Developer shall commence con- struction of the Parking Garage and Area B Surface Lot 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 Construction Plans pursuant to the Development Schedule attached hereto as Exhibit D. 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 to Developer, and until construction of the Improvements have 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 - 44 - 84-1483 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 obser- vations with the requirements of the construction and operation of the Improvements. The Developer shall restore the site to its original condition after all testing, and shall provide the City with a copy of all results. The City makes no warranty as to subsoil conditions. Developer shall not be entitled to any adjustment of Rental or of any applicable time requirements in the event of any abnormal subsoil conditions unless the subsurface conditions are so unusual they could not have been reasonably anticipated. Section 3.9 Certificate of Final Completion. Promptly after completion of the Parking Garage and Area B Surface Lot 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 i` 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 Parking Garage and Area B Surface Lot 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. - 45 - 84-1483 Section 3.10 Connection to Utilities. Developer will install or cause to be installed all necessary connections between the Parking Garage and Area B Surface Lot and the water, sanitary and storm sewer mains and mechanical and electrical cables and conduits whether or not owned by the City and/or the Dade Water and Sewer Authority Department. All costs and expenses In connection with same shall be borne by Developer. Section 3.11 Permits and Approvals. Developer shall secure and pay for any and all permits and approvals necessary for proper construction and completion of the Parking Garage and Area B Surface Lot. All costs and ex- penses in connection with same shall be borne by Developer. If the City Manager's office shall become vacant or if authority of the City Manager shall change such that the City Manager shall not have the full authority to perform the obligations imposed on that office envisioned under this Lease, then the City shall, upon request of Developer, designate such other officer or department as may be appropriate to perform the City Manager's obligation. Developer shall secure and pay for any and all permits and approvals necessary for proper construction and completion of the Developer Improvements with the exception of the permits and approvals required pursuant to Section 380.06, Florida Statutes and/or Chapter 33A of the Dade County Code, 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. In connection with the satisfaction of any requirements imposed by the Environmental Laws, the City agrees to pursue a Binding Letter of - 46 - 84-1483 Determination pursuant to Section 380.06(4)(a)0 Florida Statutes and/or a Developers Agreement pursuant to Rule 98-16.18, Florida Administrative Code and/or a Development Order pursuant to Section 380.06, Florida Statutes and/or any other good faith means designated to 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 have the option of attending such meetings. Developer agrees to cooperate with the City to the maximum extent possible in these administrative proceedings, including, but not limited to, providing such technical assistance and information as Developer may have reasonably available to contribute to the City's efforts. If the City Manager's office shall become vacant or if the authority of the City Manager shall change such that the City Manager shall not have the full authority to perform the obligations imposed on that office envisioned under this Lease, then the City shall promptly, upon request of the Developer, designate such other officer or department as may be appropriate to perform the City Manager's obligations. 47 ` 84-JL483 Section 3.12 Compliance with Law. Developer will comply in every respect with any and all federal, state, county and municipal laws, ordinances, rules, regulations 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 hereunder. Nothing herein contained shall be deemed to 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. Section 3.13 Extension of Time Requirements. The times within which Developer must submit Preliminary Plans, Construction Plans and evidence of financing, and the times within which Developer must commence and complete the development of the Leased Property and the construction of the Improvements thereon as specified in this Article may be extended in writing by the City Manager in its sole discretion, for such periods of time as it deems advisable, for good and sufficient cause shown by the Developer to the reasonable satisfaction of the City Manager. Any such extension of time shall be in writing and in such form as will enable it to be recorded among the Land Records of Dade County. Section 3.14 Alterations and Renovations. After the completion of construction of the Improvements, Developer from time to time may make such alterations or renovations thereof as it shall deem desirable, provided, i. however, that no renovation or alteration which affects the exterior appearance of the Parking Garage and Area B Surface Lot or substantially affects the overall character and appearance of any public circulation area shall be made until such time as the City Manager shall have approved definitive construction plans and specifications therefore, which approval shall not be unreasonably withheld or delayed. Developer must secure and pay - 48 - 84-IL483 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 on or near the Leased Property. 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 (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 eco- nomic development of the downtown area of the City. In order to give the City assurance as to the manner in which the Improvements will be used and operated, Developer agrees that at all times during the term of this Lease, Developer will use its diligent efforts to operate the Parking Garage and Area B Surface Lot as a first class public parking facility to at least the same level of quality as any publicly owned or publicly operated parking facilities in the City of Miami. ARTICLE V ANTI -SPECULATION; ASSIGNMENT Section 5.1 Definitions. As used herein, the term: _ 49 - 84-1483 (a) "Transfer" means: W any total or partial sale, assignment or conveyance (other than by a Leasehold Mortgage or Financing Sublease) or any trust or power, or any transfer in any other mode or form of or with respect to this Lease or of the leasehold estate in the Leased Property or any part thereof or any interest therein, or any contract or agreement to do any of the same; (ii) any transfer of the stock of the- General Partner of Developer (excluding any shareholder of an Owner whose shares are publicly traded) 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. (b) "Owner" means: (i) any person, firm, corporation or other entity which owns, directly or indirectly, legally or beneficially, one percent (1%) or more of the stock of the General Partner of Developer or other form of ownership interest of the Developer; and (ii) any person, firm, corporation or other entity which owns, directly or indirectly, legally or beneficially, more than fifty percent (50%) of the stock of the General Partner of Developer or other form of ownership interest of any entity described in clause (i) or this clause (ii), but shall not include any shareholder of an Owner whose shares are publicly traded. (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 -50- 84-IL483 shares of any class of its voting stock or of all classes of any other form of ownership interest which includes voting rights; and (ii) whose voting stock and other form of ownership interest described in clause (i) is listed for trading purposes on a securities exchange subject to the regulatory jurisdiction of the Securities & 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 - 51 - 84-1483 willing to accept and rely on the obligations of Developer for the faithful performance of all undertaking and covenants by it to be performed. and Section 5.3. Transfers. Developer, on behalf of itself and any all Owners, represents and warrants that neither Developer nor any Owner has made, created or suffered any Transfers. Except as permitted pursuant to subparagraphs (a) through (i) hereof, no Transfer may be made, suffered or created by Developer or any Owner. The following Transfer shall be permitted hereunder: (a) Any Transfer by Leasehold Mortgage to an Institutional Investor inee of an Institutional Investor which is or to an agent, designee or nom 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 VI(c)(iv) of this Agreement. (c) Any Transfer directly resulting from a conveyance to a Lender/ Landlord of the Developer's interest provided that such Transferee, within thirty (30) days after taking possession of the Project, shall have entered into an Acceptable Operator's Agreement as described in Subsection VI(c)(iv) of this Agreement. 91 - 52 - 84--1483 (d) Any Transfer to a purchaser having a good reputation and Manager and the City Commission to finan- cial resources in the opinion of the City shall have entered into an own the Project (an "Acceptable Purchaser") that Accept able Operators Agreement. if Developer shall dispute a withholding of consent by the City pursuant to this subsection (d), Developer may submit such ute to arbitration pursuant to the terms hereof. The basis for such arbi- disp Commission's tration shall be the reasonableness of the City Manager and City orth to decision whether or not such purchaser met the criteria herein set f q Y ualif as an Acceptable Purchaser or that the Acceptable Purchaser did not enter into an Acceptable Operator Agreement. (e) Any Transfer to a joint venture, general or limited partnership, joi nt stock association or Massachusetts business trust, a substantial interest in which is held by Developer and the other interests in which are held by a r Lender/Landlord or by such other persons, firms, Leasehold Mortgagee o orations, or other entities as to which the City Manager shall have given c0 rp 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. artner who is an Owner who is a Black (f) Any Transfer by a limited p American or a Hispanic American to a Black American or an Hispanic American or to an entity which is not an Owner but is owned or controlled by a Black American or Hispanic American immediately after such Transfer which is consented to by the City Manager and City Commission, which consent may not be unreasonably withheld. (g) Any Transfer by an Owner who is a limited partner of Developer an or Hispanic American into a charitable trust, and who also is a Black Americ lanning purposes for the immediate family; pro - a blind trust or for estate p - 53 - 84--IL483 vided, however, as to a Transfer by an Owner for estate planning purposes for the immediate family, the effective control of ownership is to remain in the transferor or another Black American or Hispanic American. (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 for tax syndication purposes, provided the General Partner of the Developer remains the managing general partner of the Developer after the syndication. Q) any transfer to an entity which is not an Owner, all of the a; stock or other form of ownership interest of which is owned by an Owner. 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 Transfer according to the requirements of this Agreement) of any Transfer of which Developer or its officers shall have knowledge, not less 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. - 54 - 84-1483 (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 ., !.I ?; statement, subscribed and sworn to by the President or Vice -President and the a. Secretary or Assistant Secretary of the general partner of Developer, setting �i 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 a µ, At partner of Developer and the extent of their holdings, and in the event any 1& _, q ! �.' 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 eti who on the basis of such records own one percent (1%) or more of the ownership interest of Developer or by such other knowledge or information as either of r i such officers shall have. Notwithstanding the foregoing, the information required by this subparagraph (b) shall not be required to be furnished with w° 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), (e) and W of Section 5.3 shall be effective unless and until the entity to which such Transfer is made, by instrument in writing satisfactory to the City Manager and in form recordable among the land records, shall, for itself and its successors and assigns, and especially for the benefit of the City, expressly assume all of the obligations of Developer under this Lease and agree to be subject to all conditions and restrictions to which Developer is subject; provided, however, that any Lender, Leasehold Mortgagee, Lender/Landlord transferee shall not be required to assume any personal liability under this Lease with respect to any matter arising prior or subsequent to the period of such transferee's actual ownership of the leasehold estate created by this Lease (it being understood, _ 55 _ 84-1483 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 or accept such trans- feree or successor of or from such obligations, conditions or restrictions, or deprive or limit the City of or with respect to any rights, remedies or controls with respect to the leasehold estate in the Leased Property or the construction of the construction of the Improvements. Section 5.6. Transfers of the City's Interests. The City represents and agrees for itself, its successors and assigns, that the City has not made or created and that it will not, during the term of this Lease, make or create or suffer to be made or created any total or partial sale, assignment, conveyance, mortgage, trust or power, or other transfer in any mode or form of or with respect to the City's reversionary interest in the Leased Property or any part thereof or any interest therein or any contract or agreement to do any of the same, to any purchaser, assignee, mortgagee or trustee unless such purchaser, assignee, mortgagee or trustee shall have the authority and the ability, in the Developer's opinion, to assume the obligations of the City under this Lease and the purchaser, assignee, mortgagee or trustee shall expressly agree to assume the obligations of the City under this Lease, in a form satisfactory to Developer and any Leasehold Mortgagee. - 56 - 84-1483 Notwithstanding any such transfer and assumption, the City shall not be released from its obligations pursuant to Sections 2.8 and 3.59 which obligations are personal to the City and shall remain in effect during the term of this Lease. Section 5.7. Minority Participation in Ownership. Developer agrees that no less than twenty percent (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 Agree- ment attached as Exhibit H to the Retail Area Ground Lease. 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. ARTICLE VI MORTGAGEE FINANCING; RIGHTS OF MORTGAGEE Section 6.1. Leasehold Mortgage. (a) Notwithstanding the provisions set forth in Article V hereof regarding any Assignment of this Lease, but subject to the provisions of this Article VI, provided that an Event of Default has not occurred and is not continuing, Developer shall have the right at any time and from time to time to encumber the leasehold estate created by this Lease and any improvements by Mortgage, Sale-Subleaseback transaction, deed of trust or other security instrument, including, without limitation, an assignment of the rents, issues and profits from the Leased Property and Improvements to secure repayment of a loan or loans (and associated obligations) made to Developer by an Institu- - 57 84-1483 tional Investor (as defined below) for the sole purpose of securing the financing of the construction of any Developer Improvements made pursuant to the terms of this Lease or for the long-term financing or refinancing of any such Improvements. In no event may the amount of such financing or refinancing exceed Development Costs. Developer shall deliver to City promptly after execution by Developer a true and verified copy of any Leasehold Mortgage (as defined below), or any Financing Sublease and any amendment, modification or extension thereof, together with the name and address of the owner and holder thereof. Developer may not encumber the leasehold estate created by this Lease as security for any indebtedness of Developer or -The Rouse Company with respect to any other property now or hereinafter owned by Developer and/or The Rouse Company except that Developer may so encumber same as additional security for a loan or loans granted to Developer in connection with the Bayside Specialty Center. (b) For purposes of this Article VI: "Institutional Investor" shall mean any national bank organized under the laws of the United States or any commercial bank, or any savings and loan association, savings bank, trust company or insurance company organized under the laws of the United States or any state of the United States, or any pension, retirement or welfare trust or fund supervised by a government authority of any state or the United States or any such trust or fund administered by an entity which is supervised by a governmental authority; "Leasehold Mortgage" shall mean a mortgage, deed of trust or assignment of the rents, issues and profits from the Leased Property and Improvements, which constitutes a lien on the leasehold estate created by this Lease and on the fee interest of Developer in any Improvements during the term of this Lease; and "Lender" shall mean an Institutional Investor who is the owner and holder of a Leasehold Mortgage, provided, however, that the City - 58 - 84-1483 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: (i) The City shall not agree to any mutual termination nor accept any surrender of this Lease (except upon the expiration of the full = term of this Lease) nor shall the City consent to any material amendment or modification of this Lease or waive any rights or consents it may be entitled to pursuant to the terms hereof, without the prior written consent of Lender. (ii) Notwithstanding any default by Developer in the performance or observance of any covenant, condition or agreement of this Lease on the part of Developer to be performed or observed, the City shall have no right to terminate this Lease even though an Event of Default under this Lease shall have occurred and be continuing, unless and until the City Manager shall have given Lender written notice of such Event of Default and Lender shall have failed to remedy such default or to acquire Developer's lease- hold 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. - 59 - 84-1483 (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 Improvements, and do any other act or thing required of Developer hereunder, and to do any act or thing which may be necessary and proper to be done in the performance and observance of the covenants, conditions and agreements hereof to prevent the termination of this Lease. All payments so made and all things so done and performed by Lender shall be as effective to prevent a termination of this Lease as the same would have been if made, done and performed by Developer instead of by Lender. (iv) Should any Event of Default under this Lease occur, Lender shall have sixty (60) days after receipt of notice from the City Manager setting forth the nature of such Event of Default, to remedy same and, if the default is such that possession of the Leased Property and Improvements may be reasonably necessary to remedy the default, Lender shall, within such sixty (60) day period, 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, (b) Lender shall within six (6) months of the date that it takes possession of the Leased Property enter into an agreement on terms and conditions reasonably acceptable to the City with an Acceptable Operator for the - 60 - 84-1483 continued operation of the Leased Property and Improvements (hereinafter called "Acceptable Operator's Agreement"), and (c) Lender shall have acquired Developer's leasehold estate created hereby or commenced foreclosure or other appropriate proceedings in the nature thereof within such sixty (60) day period or prior thereto, and shall be diligently and continuously prosecuting any such proceedings to completion. All rights of the City Manager to terminate this Lease as the result of the occurrence of any such Event of Default shall be subject to and conditioned upon the City Manager having first given Lender written notice of such Event of Default and Lender having failed to remedy such default or acquire I Developer's leasehold estate created hereby or commence foreclosure or other appropriate proceedings in the nature thereof as set forth in and 1 within the time period specified by this subparagraph (iv). (v) An Event of Default under this Lease which in the nature thereof cannot be remedied by Lender shall be deemed to be remedied if (a) within sixty (60) days after receiving written notice from the City Manager setting forth the nature of such Event of Default, Lender shall have acquired Developer's leasehold estate created hereby or commenced foreclosure or other appropriate proceedings in the nature thereof, (b) Lender shall diligently and continuously prosecute any such proceedings to completion, (c) Lender shall have fully cured any default in the payment of any monetary obligations of Developer under this Lease which do not require possession of the Leased Property and Improvements within such sixty (60) days period and shall thereafter continue to faithfully perform all such monetary obligations which do not require possession of the Proj- ect, and (d) within six (6) months after Lender shall have gained posses- sion of the Leased Property and Improvements, Lender shall have entered - 61 - 84-IL483 into an Acceptable operator's Agreement. Upon the taking of possession of the Leased Property and Improvements by Lender, Lender shall perform all of the obligations of the Developer hereunder as and when the same are due except that a Lender shall not be bound by the provisions of subsection 5.7 hereof. Notwithstanding the foregoing, the City agrees that Lender shall not be obligated to complete construction of the Improvements if Lender shall succeed to Developers estate under this Lease. Any assignee or successor in interest to a Lender that has taken possession of the Leased Property must, however, assume all of Developer's obligations (except as set forth in subsection 5.7 hereof) hereunder, including, but not limited to, the construction obligation. (vi) If the Lender is prohibited by any process or injunction issued by any court or by reason of any action by any court having jurisdiction of any bankruptcy, debtor rehabilitation or insolvency proceedings involving Developer from commencing or prosecuting foreclosure or other appropriate proceedings in the nature thereof, the times specified in subparagraphs (iv) and (v) above for commencing or prosecuting such foreclosure or other proceedings shall be extended for the period of such prohibition; provided that Lender shall have fully cured any default in the payment of any monetary obligations of Developer under this Lease and shall continue to pay currently such monetary obligations as and when the same 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; -62- 84-1483 and no notice by the City Manager to Developer hereunder shall be deemed to have been given unless and until a copy thereof has been mailed to Lender. (viii) Foreclosure of a Leasehold Mortgage or any sale thereunder, p,p whether by judicial proceedings or by virtue of any power of sale "'i" ontained in the Leasehold Mortgage, or any conveyance of the leasehold c estate created hereby from Developer to Lender by virtue or in lieu of the .� proceedings in the nature thereof, shall 7 y foreclosure or other appropriate not require the consent of the City or constitute a breach o any �fl provision of or a default under this Lease. Upon such foreclosure, sale h ; r or conveyance, the City shall recognize Lender, or any other foreclosure " urchaser as tenant hereunder except that all obligations on sale p from and r Developer herein contained shall be binding on the Lender only r the date that it shall take title to the Developer's leasehold r of to that Lender s rovided, estate unless otherwise in this Article VI provided; �__ h foreclosure sale purchaser must enter into an Acceptable or any such , within six (6) months of the date of such operators Agreement, i,,'; and further, provided, that in the event ..... foreclosure, sale or conveyance, d} ' ! there are two or more Leasehold Mortgages or foreclosure sale purchasers 4 (whether the same or different Leasehold Mortgages), the City shallhave �= no duty or obligation whatsoever to determine the relative priorities o such Leasehold Mortgages or the rights of the different holders thereof :- and/or foreclosure sale purchasers. In the event Lender subsequently ' assigns or transfers its interest under this Lease after acquiring the same by foreclosure or by an acceptance of a deed in lieu of Foreclosure or subsequently assigns or transfers its interest under any such new - 63 - 84-1483 lease, and in connection with any such assignment or transfer Lender takes back a mortgage or deed of trust encumbering such leasehold interest to secure a portion of the purchase price given Leasehold Mortgage as contemplated under this Section 6.19 Lender shall be entitled to receive the benefit of this Article VI and any other provisions of this Lease intended for the benefit of the holder of a Leasehold Mortgage. Any person or entity to whom this Lease or any such new lease is assigned must either enter into or assume Lender's obligations under an Acceptable Operator's Agreement. (ix) Should the City terminate this Lease by reason of any default by Developer hereunder, the City Manager shall give notice thereof en writt to all Leasehold Mortgagees and the City Manager shall, upon request by Lender to the City Manager received within sixty (60written s ) Y after such termination, execute and deliver a new lease of the Leased Property and Improvements to Lender for the remainder of the term of this Lease with the same covenants, conditions and agreements (except for any requirements which have been satisfied by Developer prior to termination) roped d, however, that the City's execution and as are contained herein, delivery of such new lease of the Leased Property and Improvements shall be made without representation or warranty of any kind or nature whatso- ever, either express or implied, including without limitation, any repre- sentation or warranty regarding title to the Leased Property and Improve- ments 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 64 - 84-14fl3 nature whatsoever, either express or implied; and Lender shall take any I rovements "as -is" in their then current condition (except as to any � such time as the actions taken or improvements made by the City during Property were not the subject of a Lease). Upon execution and Leased oP shall be delivery of such new lease, Lender at its sole cost and expense, such action as shall be necessary to cancel and responsible for taking other discharge this Lease and to remove Developer named herein and any and occupant (other than as allowed by the City) from the Leased Property I rovements. The City,s obligation to enter into such new lease of the mp Lease d Property and Improvements within the Lender shall be conditioned n Lender having remedied and cured all monetary defaults hereunder and �° completing having remedied and cured or has commenced and is diligently comp t b the cure of all non- monetary defaults of Developer susceptible to curey If the Cit receives written requests any party other than by Developer. y in accordance with the provisions of this Section 6.1(ix) from more than on e Leasehold Mortgagee, the City shall only be required to deliver the among those Leasehold new lease to the Leasehold Mortgagee who is, junior Leasehold Mortgagees requesting a new lease, the holder of the most j Mortgage, provided that such Leasehold Mortgagee shall, not later than the execution of such new lease, either (x) pay in full the sums secured by an or all Leasehold Mortgages which are prior in lien to the Leasehold y ree to reinstate the Mortgage held by such Leasehold Mortgagee, or (xx) ag liens of any or all Leasehold Mortgages which are prior in lien to the Leasehold Mortgage held by such Leasehold Mortgagee with the same relative priority as existed prior to the termination of this Lease. If any Leasehold Mortgagee having the right to a new lease pursuant to this Section 6.1(ix) shall elect to enter into a new lease but shall fail to do 84-1483 - 65 - so or shall fail to take the action required above, the City shall so her notify all other Leasehold Mortgagees (if any) and shall afford such of Leasehold Mortgagee a period of sixty (60) days from such notice within Y:..'. which to elect to obtain a new lease in accordance with the provisions o s reinstated pursuant to this Section, this Section. Except for any lien fi01, the new lease shall be prior to any mortgage or other lien, charge or i 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 K l Lease and T shall have the benefit of all of the right, title, powers and privileges of Developer hereunder in and to the Leased Property and the Improvements. the City will enter into an agreement with any ;F At Developers request, Y ranting to the Leasehold Mortgagee the rights se M1 Leasehold Mortgagee g forth in this Article. If such new lease is entered into pursuant heretot 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 ty shall have operated the during the period that the CiImprovements. (x) City and Developer shall cooperate in including in this Lease by suitable amendment from time to time any provision which may be { may otherwise be reasonably requested by any proposed Lender, or r to implement the provisions of this Article VI; provided, necessary, affect the term � however, that any such amendment shall not in any way hereby demised nor affect adversely in any material respect any rights o the City under this Lease. (xi) All rights and benefits afforded to a Leasehold Mortgagee rovidin financing to hereunder shall also be afforded to a party p 9 }. o a Financing Sublease. Developer pursuant t 66 - 84-IL483 Section 6.2. No Waiver of Developer's_ Obligations or City's Rights. Nothing contained herein or in any Leasehold Mortgage shall be deemed or construed to relieve Developer from the full and faithful observance and performance of its covenants, conditions and agreements contained herein, or from any liability 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 Improvements 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": (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 i 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 Rental. (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 - 67 - 84--IL483 such failure or default 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. r i (c) Bankruptcy, etc. 44 yy�MYa .. r= 1 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, 90 11 or 13 of the Bankruptcy Code of 1978, 11 U.S.C. (Sec. 10 et seq.) or any successor thereto; or 2. if Developer admits its inability to pay its debts, or if a receiver, trustee or other court appointee is appointed for all or a substantial part of Developer's property; or 3. if the leasehold interest of Developer is levied upon or attached by process of law; or 4. if Developer makes an assignment for the benefit of creditors or takes the benefit of any insolvency act, or if any proceedings are filed by or against Developer to declare Developer insolvent or unable to meet its debts; or 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 - 68 - 84-1483 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 Leased Property to the City in accordance with Section 11.5. Upon the termination of this Lease, as provided in this Section 7.2, all rights and interest of the Developer in and to the Leased Property and every part thereof shall cease and terminate and the City may, in addition to any other rights and remedies it may have, retain all sums paid to it by the Developer under this Lease. 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 per- formed 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 - 69 - 84-1.483 the City within such sixty (60) day period shall have commenced and thereafter shall continue diligently to prosecute all actions necessary to cure such ,t 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 rtk rc is right to pursue any or all of the following remedies: y (i) the right and option to terminate this Lease and all of its obligations hereunder by giving notice of such election to the City, r' whereupon this Lease shall terminate as of the date of such notice; (ii) the right to a writ of mandamus, injunction or other T�j fV' similar relief, available to it under Florida law against the City (including any or all of the members of its governing body, and its officers, agents or representative) provided, however, that in no event shall any member of such governing body or any of its officers, agents or representatives be personally liable for any of the City's obligations hereunder; 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 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 - 70 - 84-1483 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 Developer with respect to construction of Improvements, shall be extended for the period of unavoidable delay; provided, however, that the party seeking the benefit of the provisions of this Section shall, within thirty (30) days after such party shall have become aware of such unavoidable delay, give notice to the other party thereof in writing of the cause or causes thereof and the time delayed. The parties hereto agree that if any delay in the occurrence of any event shown on Exhibit G hereto shall be caused by an act 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 cause the Parking Garage to be opened for business with the general public by October 319 1986. Section 7.5. Obli ations _Rights and Remedies Cumulative. The rights and remedies of the parties to this Agreement, whether provided by law or by this Agreement, shall be cumulative, and the exercise by either party of any one or more of such remedies shall not preclude the exercise by it, at the same or different times, of any other such remedies for the same default or breach or of any of its remedies for any other default or breach by the other party. No waiver made by either party with respect to performance, or manner or time thereof, of any obligation of the other party or any condition to its - 71 - 84-1483 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 own obligation beyond those expressly the other party or condition to its or a waiver in any respect in regard to any waived and to the extent thereof, P other rights of the arty making the waiver or in regard to any obligation of the other party. ARTICLE VIII PROTECTION AGAINST MECHANICS' LIENS AND OTHER CLAIMS INDEMNIFICATION Section 8.1. Mechanics' Liens and Payments of Obligations. Y (a) Developer to Discharge Mechanics' Liens. Developer shall not be t { given possession of the Leased Property or authorized to begin construction a. thereon prior to the recording of this Lease and prior to Possession Date so not to subject the fee interest of the City to mechanics' liens. If any as mechanics' liens shall at any time be filed against the Leased Property, such Developer shall promptly take and diligently prosecute appropriate action to have the same discharged or to contest in good faith the amount or validity f thereof and if unsuccessful in such contest, to have the same discharged. 1 F >L ;W 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 its interest, and Developer shall pay any amount paid by the City wTFY k protect in connection with such action, and all reasonable legal and other costs and incurred by the City in connection therewith (including reasonab e expenses disbursements). Any such amounts counsel fees, court costs and other necessary s paid by the City and the amount of any such expenses or costs incurred by the 1 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 -7z- 84-'1483 demand for payment of the same, shall, together with interest thereon at the Default Rate from the date of the receipt by Developer of the aforesaid written notice and demand to the date of payment thereof by Developer, be treated as Additional Rental, and shall be payable by Developer to the City not later than the next monthly installment of the Annual Basic Rental becoming due. (b) Payment of Materialmen and 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 re 7,iired by this Agreement to be constructed by Developer on the Leased Property. Nothing in this subparagraph (b) shall limit the right of Developer to contest, in good faith, by legal proceedings or otherwise, whether any amount claimed or alleged to be due and owing to any such person is legally due and owing and to withhold payment of such amounts pending resolution of such dispute. Section 8.2. Indemnity. Notwithstanding any policy or policies of insurance required of Developer, Developer shall indemnify and save harmless the City from and against any and all actions, claims or demands, suits at law, in equity or before administrative tribunals, due to the negligence of Developer, its agents, servants, employees or contractors arising out of the use or occupancy of the Leased Property by such persons. Developer shall defend any and all such actions, claims, demands or suits on behalf of the City at Developer's sole cost and expense. The City shall indemnify and save harmless Developer from and against any and all claims or demands, suits at law, in equity or before administrative tribunals, due to the negligence of the City, its agents, servants, employees, or contractors arising out of the - 73 - 84-1483 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. 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 shall be written on as broad an All Risk form as is commercially available. The insurance shall be written on a replacement cost basis. If the policy or policies of insurance contain a co-insurance requirement, the policy or policies shall contain an agreed amount endorsement. During the construction period, property insurance may be provided on a Completed Value Builder's Risk form. The City and Developer shall be designated 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 all insurance coverage may be reviewed periodically by the City Manager at his discretion. Any review by the City Manager shall not constitute an approval or acceptance of the amount of insurance coverage. In the event that insurance proceeds are inadequate to rebuild and restore the damaged Improvements to substantially their previous condition before an - 74 ' 84-1483 insurable loss occurred, and the cause of the deficiency in insurance proceeds is the failure of the Developer to adequately insure the Improvements as required by this Agreement, Developer must nevertheless rebuild and restore 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) Business Interruption Insurance. Business interruption insur- ance, so that Developer will be insured against loss of business income from the Improvements occasioned by any of the insured against perils included in the Property Insurance policy during the period required to rebuild, repair or replace the property damaged, which policy or policies of insurance shall expressly provide by endorsement thereon that the interest of the City as lessor under this lease shall be covered to the extent earned, in an amount equal to the total of Rental payable during said period of business interrup- tion; provided, however, that Developer shall not be required to carry such rental value insurance as aforesaid until such time as the Improvements shall be opened for business with the general public. The adequacy of the Business interruption 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 and equivalent policy forms covering all owned, non -owned, and hired vehicles used in connection with any work arising out of this Agreement. Such insurance shall afford protection to at least a combined single limit for bodily injury and property damage liability of $1,000,000 per occurrence. The adequacy of the automobile liability insurance coverage may be reviewed 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. - 75 - 84-1483 (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, �T escalator, or hoist thereon. Such insurance shall afford protection to at least a combined single limit for bodily injury and property damage liability of $10,000,000 per occurrence. The adequacy of the liability insurance cover- age shall be reviewed every five years by the City Manager. Any review by the I 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. .,: (P) Garage Liability in the same limits as (d) above, including <, Automobile Insurance Hazard I; (f) Garagekeepers Legal Liability with limits not less than $5,000,000 per occurrence plus an excess coverage policy in an amount of not less than $10,000,000. This policy shall be endorsed to name the City an, DOSP as additional insureds. (g) Theft_ Coverage covering employee fidelity, inside or outside a^4 loss and burglary with a limit of not less than $100,000 per occurrence. �3Xs y? (h) Worker's Compensation as required by Florida Statutes, Chapter 440. (I) Flood Insurance in an amount satisfactory to the City and Developer. (j) Design Defect Excess Coverage. Developer agrees to name the City as an addition insured on any blanket excess coverage policy with respect to design defects in the Parking Garage which may be carried by The Rouse Company. - 76 - 84-1483 ' (k) Worker's Compensation• Worker's Compensation and Employer's ance in compliance with Florida Statute 440. For work that is Liability Insur rovide ntracted, the Developer shall require the subcontractor to p subco � to ees. Worker's Compensation insurance for all of the subcontractor s employees. with (1) ems. Developer shall furnish Certificates of insurancehereunder Cit named as additional insured for the coverages specified the the Y which shall clearly indicate that Developer has obtained insurance n ount and classification as herein required. Copies of all policies s of type, am on request of the City insurance and renewals thereof shall be furnished � thereof. Copies of new Manager by the Developer prior to the effective date the or renewal policies replacing any policies expiring during the term of this 3U days prior to Lease shall be delivered to City Manager at least thirty ( ) t ether with proof satisfactory to t the date of expiration of any policy, 09 City that all premiums have been paid. Permitted. i _ Companies - Blanket Insu Section 9.2. Res onsrance under valid insurance provided for in this Article IX shall be effected and All i recognized responsibility, and enforceable policies issued by insurers of State of Florida. All such companies which are licensed to do business in the rated at least "A" as to management, and at least "Class X" as to must be r ublished financial strength in the latest edition of Best's Insurance Guide, p by Alfred M. Best Co., Inc., 75 Fulton Street, New York, NY. The insurance required by this Article may be part of another policy or policies of the are also covered so long as Developer in which other properties and locations insurance available to pay losses at this location is at least the amount of i manner by this Section, and it cannot be reduced in any the minimum required bY losses occurring at other properties or locations. 84-1483 - 77 - r 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 such Leasehold Mortgagee may appear. Notwithstanding any such inclusion, the parties hereto agree that any losses under such policy shall be payable, and all insurance proceeds recovered thereunder shall be applied and disbursed in accordance with the provisions of this Lease. All insurance policies shall provide that no material change, cancellation or termination shall be effective until at least thirty (30) days after receipt of written notice thereof has been received by the City. Each policy shall contain an endorsement to the effect that no act or omission of the Developer shall affect the obligation of the insurer to pay the full amount of any loss sustained. Section 9.4. Cit• 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 Default Rate from the date the same were paid by the City to the date of payment thereof by Developer. The City shall notify Developer in writing of the date, purposes and amounts of any such payments made by it, which shall be payable by Developer to the City within ten (10) days of such notification. Section 9.5. Insurance Does Not Waive Developer's Obligations. No acceptance or approval of any insurance agreement or agreements by the City or - 78 - 84-1483 the City Manager shall relieve or release or be construed to relieve or release Developer from any liability, duty or obligation assumed by, or imposed upon it by the provisions of this Agreement. Section 9.6. Loss or Damage Not To Terminate Rental or this Agreement. Any loss or damage by fire or other casualty, of or to any of the 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 Rental in respect thereto, pursuant to this Agreement, as the same may become due and payable, as provided in this Agreement, or from the performance and fulfillment of any of Developer's obligations pursuant to this Agreement. Section 9.7. Proof of Loss. Whenever any Improvements, or any part thereof, constructed on the Leased Property (including any personal property furnished or installed in the premises) shall have been damaged, or destroyed, Developer shall promptly make proof of loss in accordance with the terms of the insurance policies and shall proceed promptly to collect or cause to U- 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 9.89 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 for purposes of rebuilding, replacing and repair if the total recovery is $5009D00.00 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 s 'S t - 79 - S4"-14� # i� (all urban consumers) as published by the Bureau of Labor Statistics of �E the Department of Lahr (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. (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. The Insurance Trustee shall be a commercial bank or trust company 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 - 80 - 84-'1483 Reconstruction Work. Developer shall submit invoices or proof of payment to the Trustee for payment or reimbursement in accordance with an agreed schedule of values approved in advance by the City Manager. Any amount remaining in the hands of the Insurance Trustee after the completion of the Reconstruction Work shall be paid to Developer. (c) Lenders and Lender/Landlords May Have Benefit of Insurance Fund for Reconstruction. In the event Developer, pursuant to Leasehold Mortgage or Financing Sublease, shall at any time authorize a Lender or Lender/Landlord on his behalf or in his stead to enter upon the Leased Property and undertake or prosecute the reconstruction or repair of any building on the Leased Property damaged or destroyed by fire, or other insured -against hazard or peril and to have and receive for Developer or Leasehold Mortgagee's use for such purpose such insurance proceeds, then in that case said insurance proceeds shall be equally available to Leasehold Mortgagee as to Developer as provided in sub- section (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 reconstruc- tion or repair of any such building so damaged or destroyed. Section 9.9. Covenant for Commencement and Completion of Recon- struction. Subject to the provisions of Section 9.1(b) and Section 9.10, Developer covenants and agrees to commence the Reconstruction Work as soon as practicable but in any event within six (6) months after the insurance proceeds in respect of the destroyed or damaged Improvements or personalty have been received, and to fully complete such Reconstruction Work as expeditiously as possible consistent with the nature of the damage, but in any event within eighteen (18) months from the start thereof; provided, that if it is not practicable to commence such Reconstruction Work within such six (6) month period, or to complete such Reconstruction Work within such eighteen (18) - 81- 84--1483 month period, then such Reconstruction Work may be commenced and completed within a longer period, provided that such period shall be approved in writing by the City Manager after written request from Developer. As used in the preceding sentence, the term "available net insurance proceeds" means the sum actually paid by the insurer or insurers in respect of the claim in question, less all costs and expenses incurred by Developer or the Insurance Trustee in the collection, holding and disbursement of same, including (without limita- tion) 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` 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 thereupon terminate as to such portion of the Leased Property and Developer shall have no further obligation hereunder with respect thereto, except that, if the City shall so request within thirty (30) days after such notice is given, Developer shall, at its - 82 - 84-1483 expense, promptly demolish any buildings or other improvements situated on the portion of the Leased Property as to which this Lease shall have been terminated and shall clear and grade such portion of the Leased Property. The City 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 may 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 day 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 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 - 83 - 84-1483 of this Lease Developer shall, at Developer's expense but at the option of the City, promptly demolish any building or other remaining improvement and shall clear and grade the Leased Property. Section 9.11. Casualty to Bayside Specialty Center. In the event that all or any portion of the Bayside Specialty Center damaged or destroyed by reason of fire or any other casualty and not restored such that, in the good faith opinion of Developer, it shall be economically unfeasible to use and enjoy the Improvements on the Leased Property, then Developer shall have the right, provided Developer pays off any tax exempt revenue bonds used to construct the Parking Garage and Area B Surface Lot, to terminate this Lease upon giving the City written notice of the exercise of such option and this Lease shall terminate and be null and void as of the date of termination fir,,,: specified in such notice, 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. If Developer shall so terminate this Lease, Developer shall pay to the City, if the City shall actually demolish the r Parking Garage, fifty percent (50%) of the City's costs incurred in connection ;.y, ... with the demolition of the Parking Garage. ARTICLE X CONDEMNATION Section 10.1. Entire Leased Property Taken by Condemnation. In the event that the whole of the Leased Property and Improvements (or such portion thereof as shall, in the good faith opinion of Developer, render it economically unfeasible to effect restoration thereof) 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 - 84 - 154--1483 such taking, the Rental and money to be treated as Additional Rental pursuant I 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 Leased Property as found by the court or jury in its condemnation award, or if no such separate awards are obtained, such balance shall be paid to Developer and the City in the same proportion as the then Fair Market Value of each party's respective interest or estate in the Leased Property and the 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 - 84-1483 Section 10.2. Partial flaking of Leased Property by Condemnation. (a) In the event that less than all of the Leased Property or Improvements shall be taken for any public use or purpose by the exercise of the power of eminent domain, or shall be conveyed by the City and Developer 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 (b) 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. W 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; - 86 - 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 r balance of said award or awards, if any, which are allocable to and represented by the value of their respective interest in the Leased Property as found by the court or jury in its condemnation award, or if no such separate awards are obtained, such balance shall be paid to Developer and the City in the same proportion as the then Fair Market Value of each party's respective interest or estate in the Leased Property and the 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 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 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 taken for any public use or purpose by the exercise of the power of eminent domain, or shall be conveyed by City and Developer acting jointly to avoid proceedings of such taking, then Rental, and money to be treated as Additional — 87 - 84-1483 Rental pursuant to this Agreement and the Public Charges in respect of such part of the Leased Property Shall be paid by Developer to the date of such taking or conveyance, and after such date the Rent for the remainder of the Leased Property shall be reduced by such an amount as may be agreed upon in writing by the parties hereto$ providedq 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 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. by the exercise of the power of eminent d omain, or under threat thereof the any of the Leased Property or the Improvements shall be taken whole or part for temporary use or the whole or any part of the leasehold estate created by this Lease shall be taken, all awards or other payments shall be paid to Developer alone, except that, 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 "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 Rental by the Developer shall continue as if no condemnation had taken place. Rentals payable shall be the Annual ffin-. M" Basic Rental, Annual Additional Rental and Annual Percentage Rental. - 88 84-1.483 t L able shall, for the purposes of this Section 10.4+ be the Rentals pay eriod prior to the notice of Average Rentals paid in the immediate 3 year Pme since the Opening Date, taking by condemnation or the period of time whichever period is lesser. In the event the taking for temporary use l ear, the Annual Basic Rental due for each continues for over Y consecutive year shall be increased by the percentage increase in the r Price Index, or, if not available, such equivalent index. Consume "Arbitration on 10.5. Arbitration. A panel of arbitrators Section Agreement. (i) The Panel") shall be established when required by this appointments to the panel shall be made in the following manner: (a) The City shall name one member; (b) Developer shall name one member; and third (c) The aforesaid members shall promptly name a member. Arbitration Panel must be a member of (ii) Every member of the raisers. the American Institute of Real Estate App to designate a member within If either party shall fail (iii) the other pa�Y � fifteen (15) days after a written request so to do by Florida Chapter of hen such other party may request the President of the i t who when so th e American Arbitration Association to designate a member, hall act in the same manner as if he had been the member designated s If the two nated by the party so failing to designate an arbitrator. desi g r within ten (10) days from members are unable to agree upon a third membe the last date of designation, such third member shall be designated by the President of the Florida Chapter of the American Arbitration Association, upon the request of either of the two members. - 89 - 84-1483 (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 controversies, disputes or claims with respect to the evaluation of real estate referred to Arbitration under the provisions of this Agreement, the Arbitration shall be conducted in accordance with the Real Estate Valuation Rules of the American Arbitration Association. In determining any matter before them, the Arbitration Panel shall apply the terms of this Agreement, and shall not have the power to vary, modify or reform any terms or provisions of the Agreement in any respect. The Arbitration Panel shall afford a hearing to the City and to the Developer and the right to submit evidence with the privilege of cross-examination on the question at issue. All arbitration hearings shall be held at a place designated by the Arbitration Panel in Dade County, Florida. (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 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 brief s, including reply briefs, shall be filed with the terms and on the schedule set by the Arbitration Panel, but in any event no later than forty-five - 90 - Commencement of the hearing. The Arbitration (45) days following the comma s from the 60) days Panel shall render a determination within sixty ( conclusion of If no determination is rendered within such hearing* a new Arbitration Panel shall be time, unless the parties agree otherwise, selected as describ ed above, but the new Arbitration Panel shall render a without a determinat ion solely upon review of the record of the hearing further hearing• agree to The Arbitration Panel selected hereunder shall ag utes (vi) Commercial Disp observe the Code of Ethics for Arbitrators in promulgated by the American Arbitration Association and the American Bar majority with Ass ociation, or any successor code. The decision of a respect to any mat ter referred to it under this Lease shall be final, conclusive on the City and Developer and enforceable in any binding and concl the court of competent jurisdiction. Together with the determination, shall provide a written explanation of the basis for the Arbitration Panel enses of the member determination. Each party shall pay the fees and exp 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, Center Taken B Condemnation. Section 10.6. Ba side S ecialt of the Bay Specialty Center In the event that all or any portion or the Retail Parcel is taken by a power of eminent domain or shall be conveyed to avoid such prose edi s such that, in the good faith opinion of Developer, n9 rovements on the it shall be economically unfeasible to use and enjoy the Imp rovided Developer Leased Property, then the Developer shall have the right' p used to finance Lea under any bonds pays to the City the aunt then outstanding to terminate the const ruction of the Parking Garage and Area B Surface Lot, - 91 - 84.-1483 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 the termination specified in the 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. Should the City desire that the Parking Garage be demolished upon termination of the Lease, Developer shall share the cost of such demolition with the City. If Developer shall so terminate this Lease, Developer shall pay to the City, if the City shall actually demolish the Parking Garage, fifty percent (50%) of the City's costs incurred in connection with the demolition of the Parking Garage. ARTICLE XI RIGHTS OF OCCUPANCY AND ACCESS; MAINTENANCE OWNERSHIP OF IMPROVEMENTS Section 11.1. Quiet_ Enjoyment. The City represents and warrants that Developer, upon paying the Rental pursuant to this Agreement and observing and keeping the covenants and agreements of this Agreement on its part to be kept and performed, shall lawfully and quietly hold, occupy and enjoy the Leased Property without hindrance or molestation by the City during the term of this Agreement or by any person or persons claiming under the City. Section 11.2. Waste. Developer shall not permit, commit or suffer waste or impairment of the Leased Property, or the Improvements thereon, or any part thereof. 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 Improve- -92- 84--1483 ments, 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 Lender 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 Lender or any designee or nominee of such Lender permitted hereunder, until the expiration or sooner termination of the term of such new lease. The City and Developer covenant that to confirm the automatic vesting of title as provided in this paragraph, each will execute and deliver such further assurances and instruments of assignment and conveyance as may be required by the other for that purpose. During the term of this Lease, Developer shall be entitled to claim depreciation on the Improvements and all equipment, fixtures and machinery therein contained, for all taxation purposes. Section 11.5. Surrender of Leased Proper. Upon the expiration of the Lease term, or upon termination of this Agreement and the Lease term hereunder in respect to the Leased Property, title to the Improvements shall vest in the City and it shall be lawful for the City to re-enter and repossess the Leased Property and the Improvements thereon, without process of law, and Developer, in such event, does hereby waive any demand for possession thereof, 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. - 93 - 84-1483 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 .r to be constructed by Developer on the Leased Property; and (b) Join Developer in any grants of, or grant such, access easements F d° or easements or rights with respect to 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 creating or establishing the relationship of co-partners, or creating or establishing the relationship of a joint venture between the City and Developer, or as constituting Developer as the agent or representative of the City for any purpose or in any manner whatsoever. Section 12.2. Recording, Documentary Stamps. This Agreement, or a memorandum hereof in form mutually satisfactory to the parties, shall be recorded among the Land Records of Dade County, State of Florida, and either party may cause any modification or addition to this Lease or any ancillary -94- 84-1483 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 rzrDeveloper. 12.3. Florida and Local Laws Prevail. This Agreement shal Section be taken and deemed to be governed by the laws of the State of Florida. This Agreement is subject to and shall be interpreted to effectuate its compliance Win 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 r' public access to the water, reasonable public use of such property, P reasonable and comply with other charter waterfront setbacks and view corridor require- ments. Any conflicts between this Agreement and the aforementioned Codes and Charters shall be resolved in favor of the latter. If any term, covenant, or ., application thereof to any person or circum condition of this Lease or the- stances 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 unenforceable because of judicial construction the remaining entity or becomes s s and conditions of this Lease, or the application of such terms, covenants r�tt r 4 =' term, covenant or condition to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby and of this Lease shall be valid and be enforced f each term, covenant, or condition extent permitted by law. Contemporaneously with the execution to the fullest of the Agreement, the City Attorney has delivered an opinion to Developer k� 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. _ 95 _ 84-1483 r 12.4. Conflicts of Interest* Cit R resentatives Not Section No member, official, representative, or employee of the = L Individually_ Liable. interest, direct or indirect, City or the City Manager shall have any personal r any such member, official, representative or " in this Agreement, nor shall to this Agreement which affects employee participate in any decision relating his her personal interest or the interest of i any corporation, partnership fy or she is, directly or indirectly, interested. No r° or association in which he or the City Manager member, official, representative or employe e of the City or shall be personally liable to Developer or any successor in interest in the default or breach by the City or the City Manager or for any event of any to Developer or successor or on any obligations _ amount which may become due under the terms of the Agreement. this 4 Section 12.5. Notice. A notice of communication under b either the City or the City Manager, on the one hand, to Agreement y the other, by Developer to the City or the City Manager Developer, or, on delivered if dispatched by registe red or shall be sufficiently givenor epaid, return receipt reques certified mail, postage prted; and i (a) Devel er. In the case of a notice or communication to �.�-- r Developer, if addressed as follows: General Counsel Center Limited Partnership �F Bayside kW c/o The Rouse Company 10275 Little Patuxent Parkway g Columbia, Maryland 21044 Records. Developer's original duplicate books and _ (b) Developer's f5�} in auditable form as required in Section 2.5(d) shall be kept and be Y'.S7 records City during normal business hours at its principal place of }_ available to the business in the City of Miami. 84--1483 - 96 - 4.� h L _ �3f,u, n s ?v.« .. �`..� � r �E�s.,7. s •`_�, '_ ��" uvd .. �,-a;. ��.�. i,:-T. � �� �._.. � A, �.. ° �.�+4. a �:A "i t� ` (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 Lender designated by Developer a certificate stating that (i) the Lease is in full force and effect and has not been modified, supplemented or amended in any way, or, if there have been modifications, the Lease is in full force and effect as modified, identifying such modification agreement, and if the Lease is not in force and effect, the certificate shall so state; (ii) the Lease as modified represents the entire agreement between the parties as to this leasing, or, if it does not, the certificate shall so state; (iii) the dates on which the term of this Lease commenced and will terminate; (iv) all conditions under the Lease to be performed by the City or Developer, as the case may be, have been satisfied and, as of the date of such certificate, there are no existing defenses or offsets which the City or Developer, as the case may be, has against the enforcement of the Lease by the other party, or, if such conditions have not been satisfied or if there are any defenses or offsets, the certificate shall so state; and (v) the rental due and payable for the year in which such certificate is delivered has been paid in full, or, if it has not been paid, _ 97 _ 84-1483 the certificate shall so state. The party to whom any such certificate shall be issued may rely on the matters therein set forth and thereafter the party issuing the same shall be estopped from denying the veracity or accuracy of the same. Any certificate required to be made by the City pursuant to this paragraph may be made on its behalf by the City Manager. Section 12.7. Provisions Not Merged with Deed. None of the provisions of this Agreement are intended to or shall be merged by reason of any deed (i) transferring Developer's leasehold estate in the Leased Property and Improvements or any part thereof from the Developer (or its successors or assigns) to the City (or its successors or assigns), or (ii) transferring title to the Leased Property or any part thereof from the City to Developer, its successors or assigns, and any such deed shall not be deemed to affect or impair the provisions and covenants of this Agreement. Section 12.8. Titles of Articles and Sections. Any titles of the several parts, Articles and Sections of this Agreement' are inserted for convenience of reference only and shall be disregarded in construing or interpreting any of its provisions. Section 12.9. 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 by delivery of the parties hereto and execution and delivery of all Exhibits referred to in Section 1.1. Section 12.1o. Successors and Assigns. Except to the extent limited elsewhere in this Lease, all of the covenants, conditions and obligations - 98 - 84-1483 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 WHEREOF0 ROUSE-MIAMI, INC., the sole general partner of BAYSIDE CENTER LIMITED PARTNERSHIP, has caused this Lease Agreement to be signed in its name by its Vice President, duly attested to by its Assistant Secretary and its corporate seal to be hereunto affixed, and the CITY COMMISSION OF MIAMI has caused this Lease Agreement to be signed in its name by Randolph Rosencrantz, the City Manager, and duly attested to by Ralph G. Ongie, the City Clerk, on the day and year first hereinabove written. ATTEST: BAYSIDE CENTER LIMITED PARTNERSHIP By: ROUSE-MIAMI, INC., general partner Assistant Secretary [Corporate Seal] ATTEST: Ralph G. Ongie, City Clerk APPROVED AS TO FORM AND CORRECTNESS: LUCIA ALLEN DOUGHERTY CITY ATTORNEY 602F/22A By: vice -President - THE CITY OF MIAMI, A MUNICIPAL CORPORA- TION OF THE STATE OF FLORIDA By: City Manager - 99 - 84-1483 V STATE OF FLORIDA j COUNTY OF DADS ) ledgments HEREBY CERTIFY that I, an officer authorized to t ersonalrly appeared before me a on this day of Deceimber, 1984, p and , known to me to be thleN�a -- orida respect ve y, of ROUSE-MIAMI, Ass!stint Secretaryf general partner of Bayside Center Lessons corporation, known to me to be tartnership, and known to me to be the p a Maryland limited p acknowledged the Partnership, instrument:, and they severally who executed the foregoing execution thereof as the free and formal act of the aforesaid corporation as the sole general partner of such partnership. and State the day WITNESS my hand and official seal in said County and year last aforesaid. otary b c, tate o or a at Targe my Commission Expires: STATE OF FLORIDA ; COUNTY OF DADE HEREBY CERTIFY that I, an officer authorized 19849 personally take appeared before Manager me er aNDOLPH on this day of December, + Pthe d the ROSENCRA Z and RALPH G. of THE known to A to a be municipal corporation in and City Clerk, respectively, of THE CITY OF NIIAMI, persons the who under the laws of the State of Florida, and known e r t0 b a acknowledged the of instrument, and they severally executed the foregoing n thereof as the free and formal act of the said municipal corporation. execution and State the day WITNESS my hand and official seal in said County and year last aforesaid. 602F/22A o ary cI a e o or a s arge My Commission Expires: - 100 - 84-1483 EXHIBIT A-1 SURVEY (PARKING GARAGE) 84-1483 m Sx @iwi 4,.r.,'a�'r%y'�•�i 7r �, h r F d v.#x �•`w-'�" `x�r�q 'i!�'"� ,t i. �i� i& -xis, �t �„x �' K ; a F�4sr�, y'� �;o-x.�,�..rk 'T� ,^s e �".� ��' Yx '�, -` ar., �-° yt CC.�� .y;yx�t w;s���?��f 3S �,As... T�h`r�[�'u -o- ". •'��� -i :� kj¢ `Y P+ : ����fii t�l � � ��i*+�"+�w � F '`•� 4 S� �,u+*��w3,'c Ii^ ,,�,�G. Z{'r x, '+j "• dlt� .t ab w'S z *.. F k s':,Y° z'r'„�::�!,t��}�A^�j �y r �C'�t!' �2 All- ��r4- "t+.�..- c Y. �•Y g y� �F 315�iF��$Yi �} ��� �y �'F #y x� �.i - a -. ..ri 5 MVIIIIIij. 'a ► k , qs , yY r } u t� i on�y t - atw G::-3 .. F r r t y ti r ' Y i y t • jTletAC i t L 1 a• � � l 1 t -�— d4 4 Li 1 iPC...e- 7 A lip kI 3 t � �em } i :F r 1 C.� a 3 t6�3�A'k-` •+ '� 'tie f 1Ftt '�ya �'a { _' ,..._ WAMO- -",A,fnii ,gY it c. ,f•.r. A, t ' ' !I'- ,'?; i{>F Y,lh1 1101 A,1 I 1 '111I ijI ,.; ,_ rit a `�lL►' �� !k r1 f � ♦7I�A� 1 1 yM� � � . � 1• t q . , v A R- � E , � "� �-- � 1 � - 1 � 1oe , i- a �= leg I i I 1 I 1 .• i U i' � ;� ` 1 1 1 t 1 I I SI i h AL i 1 I I t-�---►---+--�� v V%'A `- dop I � 1 I t � I -� I�lf i r d �©� • • • r I t 1 1 OUT OWT 01F • ., 'T CARcIA $+. ' nslA 'r 4 a t � ifis • • -T ARCADE «MV l ltv � .r a• M ~ i RES AU NTj 1 09 - 10 A401, err . It t � t t . ME 3 ei' ;, �_ j ='� i t :� I , � I r,-~ y ��.yf '��4�. �,..: �.ti ��1': �.:� .fir. _ _�. f a } . �..k. �,� t. ,;. ,s t �'— ;y- 13 t .� ,... µsr.•= ;y� F � i' ^y< ,;;F •�i 4q;-, .�3 i$ ���:. �J F' �. f 4. ,r,i +��t �w ,.�,r:cs aA ,:�v�k° ,� ,` ." "" .. - P .� t'9 e= � ��� � r `.J.' '.;a' � ��, �! y ipe M1 �7 ,:t t�.,x, x.'..� '.�Y+ 1 �r H t � ��a 4 t° ..p���r�t = t• '�]�i ♦ynwv... '{ L I;ve ?J - t x, 1 7 sS r r.. • wr � ;1 ! '.. {, S, • f• wi 1 �F arg:; 1, f: y3� ' N 4� Iy, t g' 3E^r 1 � S' � F : r \ � /\ ■ � � \\~ \ \ _ \\\ . -� � \�\ ?� z \< � � : ������\ . � \\ �\� � � \ �' � \ � _ � � 2� 7� .� � . � � . � \� � . � �� $ \ � � < � � � . :� � Wit. � � /. � � �2 \ � :\ � �� � V � � }� � ©� 4 � / ��� ��� \/\\ y� � \/ \� j » � \� � ! � :\..� � � �� � � \ � y<».yam � ) «<§.� � / � � . �� � \C� � ) � � � � � ��ry��. sv«®� \\`�� �^_\�� . 0 s , 1 Sy t � - •�• 1 ! 1 44; s/ IF, ip NIt ��• • ` s "� .• r S r. .. i1 s 4Lr m MIAluI .: ]FLOUSIS in u subsidiary +0 t 1 f I too +CQi tIUBIA. MD 21044 } w 6.. ," .... -1. . .. .. - .s ......I .raw "w .r "".. e AMMI'TECTS BNNjAPAIN THOUPS i M'ORY STRIMET. CAMMUDOB.'MA ARMITRC" ea r ILs CA 3 f It Ll SK lD't POR DESCRIPTIVE PURPOSES_ ONLY EXHIBIT Aw3 as—iaea ikASSOVEAT"M �1H4�00 TFIZx ?io•anoo•1'rs bias• tee?��' . , INC �,• ::�,',1�,�'� ; ��x a�a ear goy, � ..'i,.. - _ - _ • .i'�.. � +'ice.. Ilk EXHIBIT 13-1 9WW"WO."if -.10r Jo -St . Azm,, map& ct iso'.45 November 21, 1984 Revised December 3, 1984 GARAGE PARCEL Commence at the Northeast corner of Block 61 North of the A. L. KNOWLTON MAP OF MIAMI, as recorded in Plat Book "B" at Page 41 of the Public Records of Dade County, Florida; thence run North 89058118" East along the Easterly prolongation of the Northerly line of Block 61 North of said A. L. KNOWLTON MAP OF MIAMI for a distance of 557.10 feet to a point; thence run South 00008'11" West for a distance of 100.00 feet to a point of intersection with the South line of Port Boulevard as recorded in Official Records Book 6811 at Page 240 of the Public Records of Dade County, Florida; said point being the Point of Beginning of the parcel hereinafter described; thence run South 00008111" West for a distance of 34.17 feet to a point; thence run South 89051149" Ea8t for a distance of 158.33 feet to a point; thence run South 00 08'11" Westfor a distance of 149.00 feet to a point; thence run South 89051149" East for a distance of 28.42 feet to a point; thence run South 00008'11" West for a distance of 50.00 feet to a point; thence run North 89 51149" West for a distance of 28.42 feet to a point; thence run South 00008111" West for a distance of 166.00 feet to a point; thence run South 89051149" East for a distance of 28.42 feet to a point; thence run South 00008'11" West for a distance of 50.00 feet to a point; thence run North 89051149" West for a distance of 30.00 feet to a point; thence run North 00 08111" East, fob a distance of 11.00 feet to a point; thence run North 89 51149" West for a distance of 156.75 feet to a point; thence run South 00008111" West fgr a distance of 25.00 feet to a point; thence run North 89 51149" West for a distance of 101.25 feet to a point; thence run North 00008111" E$st for a distance of 25.00 feet to a point; thence run North 89 51149" West for a distance of 73.07 feet to a point of intersection with a line 210 feet Easterly of and parallel with the City Monument line of Biscayne Boulevard (North); thence run North 16051129" West along said line parallel with the City Monument line for a distance of 312.42 feet to a point; thence run North 12057137" West for a distance of 7.35 feet to a point of intersection with the South line of said Port Boulevard; thence run North 39001119" East along the South line of said Port Boulevard for 84-1483 GARAGE PARCEL November 21, 1984 (Revised December 3, 1984) Page 2 a distance of 65.42 feet to a point of curvature of a curve concave to the South having a radius of 218 feet; thence Northeasterly and easterly along said curve thrbugh a central angle of 50 56'59" for an arc distance of 193.85 feet to a point of tangency; thence continue along the South line of said Port Boulevard North 89058118" East for a distance of 57.17 feet to the Point of Beginning; containing 3.7588 Acres more or less. E. R. BROWNELL & ASSOCIATES. INC.. MIAMI. FLORIDA ,Jt. 4 -:f i 84-IL48&3 1 � EXHIBIT B-4 .��licrisw; �o�idcz 33�.GS December 4, 1984 LEGAL DESCRIPTION AREA "B" ✓�1 .�.�� .iAS JSI t Commence at the Northeast corner of Block 61 North of the A. L. KNOWLTON MAP OF MIAMI, as recorded in Plat Book "B" at Page 41 of the Public Records of Dade County, Florida; thence run North 89 58118" East along the Easterly prolongation tt of the Northerly line of Block 61 North of said A. L. KNOWLTON MAP OF MIAMI for a distance of 184.07 feet to the Point of ' Beginnin� of the parcel hereinafter described; thence run South 24 26' 29" East for a distance of 254.19 feet to a point of intersection with the South line of Port Boulevard as a *, recorded in Official Records Book 6811 at Page 240 of the `{ Public Records of Dade County, Florida; thence run North 39 01119" East along the South line of said Port Boulevard for a distance of 65.42 feet to a point of curvature of a curve concave to the South having a radius of 218 feet; thence run Northeasterly and Easterly along said curve through a central *r angle of 50 56 59.5 for an arc distance of 193.85 feet to a point of tangency; thence continue along the South line of said Port Boulevard North 89 58'18" East for a distance of 835.90 S feet, more or less, to a point of intersection with the U. S. Harbor Line of 1930 as shown on the plat of METROPOLITAN DADS COUNTY BULKHEAD LINE as recorded in Plat Book 74 at Page 3 of 1 Y thed Public Records of Dade County, Florida; thence run North 00 15'53" East along the said U. S. Harbor Line for a distance of 270.00 feet to a point of intersection with a line 170 feet # North of and parallel with the Easterly prolongation of the �KNOWLTON MAP OF Northerly line of Block 61 North of said A. L. MIAMI; thence run South 89058118" West along said parallel line for a distance of 1230.02 feet to a point of intersection with a line 130 feet Easterly of and parallel with the City Monument k Line of Biscayne Boulevard between N. E. 6th Street and N. E. 7th Street; thence run South 24 26' 29" East for a distance of 186.69 feet to the Point of Beginning, containing 7.526 acres, more or less. .84-1483 EXHIBIT D - CONSTRUCTION SCHEDULE (Parking Garage) NOT AVAILABLE 84-1483 AGREEMENT OF GUARANTY December , 1984 hr As used in this Agreement of Guaranty, the term "Ground Lease means that certain Lease Agreement, of even date herewith, by and between the City `t of Miami, a municipal corporation of the State of Florida (the "City"), as lessor, and Bayside Center Limited Partnership, a Maryland limited partnership 4 # ("Developer"), as lessee, with respect to the Bayside Specialty Center Parking Garage. All other capitalized terms used herein shall have the meaning ` ascribed to them in the Ground Lease unless otherwise defined herein. The City is willing to enter into the Ground Lease with Developer only if the undersigned guarantees the full, prompt and faithful performance by Developer of all of its obligations under the Ground Lease until Completion Date shall have occurred. NOW THEREFORE, in consideration of the premises and of other valuable consideration and to induce the City to enter into the Ground Lease, the undersigned agrees with the City as follows: 1, The undersigned unconditionally guarantees to the City the full, prompt and faithful performance by Developer of all of its obligations under �..: the Ground Lease arising on or before the Completion Date, including, without i.i_�;itation, the obligation of Developer to complete, equip and pay for the t'arking Garage and Area B Surface Lot free and clear of any and all liens connected with or arising out of said construction, equipment or completion. 2. If Developer does not perform the obligations specified in h 1 of this Agreement of Guaranty on or before the time such paragraph the . obligations are to be by Developer pursuant to the all costs and undersigned shall perform such obligations and shall pay expenses incurred in so doing and shall pay to or reimburse the City for all y}s' expenses incurred by, or other moneys due, in enforcing such obligations of the Developer under the Ground Lease and in enforcing the obligations of the undersigned hereunder. ent of the 3. The City may without notice to or the cos after any default nod ed � at any time and from time to time, either before Developer, (a) amen , by agreement with Developer, any provision of the Ground f _ . kz Lease, (b) m e a agreement with Developer for the extension, payment, -: compounding, c mpro 'se, discharge or release of any provision of the Ground Lease for any ation of the terms thereof, and (c) without limiting the {, generality of the foregoing, the City is expressly authorized to surrender to Developer, or to deal with or modify the form of, any security which the City may at any time hold to secure the performance of any obligation hereby .. �. guaranteed, and the guaranties herein made by the undersigned shall not be r� impaired or affected by any of the foregoing. 4. Any notice or demand given or made under this Guaranty shall be given or made by mailing the same by registered or certified mail to the party EXHIBIT E t 7tf rw f` No 1-c .,�a �:. q,•�kk S ns Y Cr*.nldh^� i. , ,��.'.' .... u t :..�f... �.r�„ ..< .. •� . _: _ . ... . Y +w .'. �,._< . .,. ,,., , .t u-1. i<ie.. 'SBA e .1. �cY'3r JS..�r�. .X ..fi. 'Y'• ...��: tZ-.•wc�, 84-1483 1 AGREEMENT OF GUARANTY December , 1984 a As used in this Agreement of Guaranty, the term "Ground Lease" means that certain Lease Agreement, of even date herewith, by and between the City of Miami, a municipal corporation of the State of Florida (the City ), as lessor, and Bayside Center Limited Partnership, a Maryland limited partnership �= ("Developer"), as lessee, with respect to the Bayside Specialty Center Parking Garage. All other capitalized terms used herein shall have the meaning ascribed to them in the Ground Lease unless otherwise defined herein. s The City is willing to enter into the Ground Lease with Developer only if the undersigned guarantees the full, prompt and faithful performance by Developer of all of its obligations under the Ground Lease until Completion Date shall have occurred. NOW THEREFORE, in consideration of the premises and of other valuable consideration and to induce the City to enter into the Ground Lease, the undersigned agrees with the City as follows: 1. The undersigned unconditionally guarantees to the City the full, prompt and faithful performance by Developer of all of its obligations under the Ground Lease arising on or before the Completion Date, including, without !_.i.-ation, the obligation of Developer to complete, equip and pay for the Narking Garage and Area B Surface Lot free and clear of any and all liens connected with or arising out of said construction, equipment or completion. 2. If Developer does not perform the obligations specified in paragraph 1 of this Agreement of Guaranty on or before the time such obligations are to be -performed by Developer pursuant to the Ground Lease, the undersigned shall perform such obligations and shall pay all costs and expenses incurred in so doing and shall pay to or reimburse the City for all expenses incurred by, or other moneys due, in enforcing such obligations of the Developer under the Ground Lease and in enforcing the obligations of the T' undersigned hereunder. 3. The City may without notice to or the consent of the undersigned at any time and from time to time, either before or after any default of Developer, (a) amend, by agreement with Developer, any provision of the Ground Lease, (b) make any agreement with Developer for the extension, payment, ` compounding, compromise, discharge or release of any provision of the Ground °{ Lease for any modification of the terms thereof, and (c) without limiting the ¢t generality of the foregoing, the City is expressly authorized to surrender to Developer, or to deal with or modify the form of, any security which the City r; may at any time hold to secure the performance of any obligation hereby guaranteed, and the guaranties herein made by the undersigned shall not be <, '= impaired or affected by any of the foregoing. 44; 4. Any notice or demand given or made under this Guaranty shall be given or made by mailing the same by registered or certified mail to the party EXHIBIT E 84-1483 M4 } k �e YTS �q 44 to whom the notice or demand is given or made at the address of such party set forth below, or such other address as such party may hereafter designate by notice given as provided in this paragraph. The address for notices to Developer is: Bayside Center Limited Partnership 10275 Little Patuxent Parkway Columbia, Maryland 21044 Attention: General Counsel r The address for notices to the City is: 4 City Manager . ?W City of Miami ;5 3500 Pan American Drive Miami, Florida 33133 5. This Guaranty is, and shall bedeemed of Florida and shall be entered in into under and pursuant to the laws of the State all respects governed, construed, applied and enforced in accordance with the laws of said state; and no defense given or allowed by the laws of any other a x state or country shall be interposed in any action or proceeding hereon unless _,_.. such defense is also given or allowed by the laws of the State of Florida. 6. Each reference herein to the City shall be deemed to include its and assigns as lessor under the Ground Lease, in whose favor the rein to the precisions of this Guaranty shall also inurethe. succe so sfeandCehe assigns of the undersigned shall be deemed to include undersigned, all of whom shall be bound by the provisions of this Guaranty. 7. No delay on the part of the City in exercising any rights + hereunder or failure to exercise the same shall operate as a waiver of such rights; no notice to or demand on t waiver of the obligation of the undersig ned undersigned of the shalright of the l be deemed tCitye to `a take further action without notice or demand as provided herein; nor in any w event shall any modification or waiver of the provisions of this Guaranty be effective unless in writing nor shall any such waiver be applicable except in x� the specific instance for which given. g. This Guaranty may be executed in one or more counterparts by z some or all of the parties hereto, each of which counterparts shall be an r original and all of which together shall constitute a single agreement of k ror a ,r� guaranty. Xa;'y y N i IN WITNESS WHEREOF, the undersigned has duly executed this Guaranty r� as of the day and year first above written. THE ROUSE COMPANY 1700F/457A-4 By: Vice -President -2- L y 1 tF-V 84-1483 EXHIBIT F - LIST OF PERMITTED ENCUMBRANCES (Parking Garage) NOT AVAILABLE 84--1483 EXHIBIT G - SURVEY SHOWING EASEMENTS AND UTILITIES - NOT AVAILABLE 84--1483 r � r EXHIBIT H- LIST OF APPROVED CONCEPT PLANS (Parking Garage) NOT AVAILABLE �611,I=+ a.� i 04? f AGREEMENT THIS AGREEMENT made and entered into this day of December, 1984 by and between THE CITY OF MIAMI, a Florida municipal corporation (hereinafter referred to as "City") and THE DEPARTMENT OF OFF-STREET PARKING OF THE CITY OF MIAMI, a department of the City (hereinafter referred to as "Department"): WHEREAS, the City recognizes that the Department is currently earning approximately $80,000 per year in revenues from existing parking meters and monthly parkers located at the site of the proposed Bayside Specialty Center. Parking Garage, and WHEREAS, the Trustees of the Department's Parking Bonds have a vested interest in the revenues collected from the parking meters and monthly parkers located at such site, and WHEREAS, the parties recognize that the revenue lost as a result of the elimination of the parking meters and monthly parkers by the lease of such site to Bayside Center Limited Partnership ("BCLP") for the construction and operation of the Bayside Specialty Center Parking Garage (the "Parking Garage") must be replaced. NOW THEREFORE, it is hereby agreed by and between the City and the Department as follows: 1. The City agrees to pay to the Department the sum of $80,000 for each calendar year from the date that such parking meters and monthly parkers are removed from the site of the Bayside Special Center until December _, 2012 provided, however, that if such parking meters and monthly parkers are removed on other than the first day of a calendar year, the payment due for such partial year shall be calculated by multiplying $80,000 times a fraction the numerator of which shall be the number of days elapsed from the date of removal (the "Removal Date") to the last day of such calendar year and the denominator of which shall be 360. 2. It is agreed that payments required to be paid to the Department by the City hereunder shall not commence until the first day of the first month next succeeding the Opening Date as such term is defined in that certain lease to be entered into between the City and BCLP with respect to the Parking Garage (the "Lease"). On such date and on the first day of each of the next succeeding 47 months, the City shall pay the Department an amount equal to $6,666.67 plus 1/48th of the amount which should have been paid to the Department for the period commencing on the Removal Date and terminating on the Opening Date had not the Department permitted the payment of such amount to be accrued and amortized over a four year period commencing on the first day of the first month next succeeding the Removal Date. For the period commencing on the first day of the 49th month next succeeding the Opening Date and on the first day of each month thereafter (to and including December 1, 2022), the City shall pay the Department $6,666.67. ,. .. - 777 x 2 A z�a `tf t t et4 �rYr - a .., .:..zsK "-n ;L7a� 84-1483 3. The City agrees that the Director of the Department or his designated representative shall be a member of the City's coordinating committee with respect to the review of the progress of construction of the Parking Garage pursuant to the Lease. IN WITNESS WHEREOF, the City Commission of Miami has caused this agreement to be signed in its name by Randolph Rosencrantz, the City Manager and duly attested to by Ralph G. Ongie, the City Clerk, and the Department of Off -Street Parking has caused this Agreement to be signed in its name by Roger M. Carlton, the Executive Director of the Department of Off -Street Parking of the City of Miami and duly attested to by the Secretary of the Department of Off -Street Parking on the day and year first hereinabove written. ATTEST: Ralph G. Ongie, City Clerk ATTEST: Secretary APPROVED AS TO FORM AND CORRECTNESS: LUCIA ALLEN DOUGHERTY, CITY ATTORNEY 1675F/457A THE CITY OF MIAMI, A MUNICIPAL CORPORA- TION OF THE STATE OF FLORIDA By: Randolph Rosencrantz, City Manager DEPARTMENT OF OFF-STREET PARKING OF THE CITY OF MIAMI By: Director - z - YO 6 � r h � " } f u3y��,yy,%,'x-r'c"�.' � d ' �� i �i ' � ' •aa'� �`�,�� '� 'k�� �'"� .. ���t+pr, ��{.-f st�`s.tl��!Y�e �o-4t i { �,• b r� i .�'-' � �; y�,.. �'h.����i*!"'Y{��.2h,a.},""�C•,�����'z��°���' 84t--1483 i MINORITY PARTICIPATION AGREEMENT THIS MINORITY PARTICIPATION AGREEMENT ("this Agreement") made this day of December, 1984 by and between the CITY OF MIAMI$ a municipal corporation of the State of Florida ("the City") acting by and through the CITY MANAGER ("the City Manager") and BAYSIDE CENTER LIMITED PARTNERSHIP, a Maryland limited partnership ("Developer"). STATEMENT OF BACKGROUND AND PURPOSE 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 boutiques, markets and entertainment areas rc;pc;-,sive to urban, environmental and design factors inherent to the City waterfront and Bayfront Park. Developer submitted a proposal to develop a mixed -use project ("Project") consisting of a waterfront specialty center ("Bayside Specialty Center") more particularly described in that certain Lease Agreement between the Developer and the City dated of even date herewith ("Retail Lease") and a parking garage and surface parking lot ("Parking Garage") more particularly in a Lease Aoreement between the Developer and the City of even date herewith ("Parking Garage Lease'% which proposal contained, among other things, a minority participation plan. The City has accepted the Developer's proposal for the Project and the City and the Developer have executed and delivered the Lease simultaneously with the execution and delivery of this Agreement. 84-1483 4 i 7 It is the mutual desire of the parties to set forth their agreement and understanding of the goals for minority participation in the Project. In consideration of the foregoing and the covenants and agreements hereinafter set forth, the parties covenant and agree as follows: ARTICLE I DEFINITIONS Section 1.1 Defined Terms. As used herein the term: "this Agreement", means this Minority Participation Agreement, as the same may be modifie or amended Prom time to time provided that any such modification or amendme ust be consented to by a four fifths (4/5ths) .vote of the Miami City Commission. "Bayside Specialty Center" has the meaning ascribed to it in the 3L tf-�;,:not of Background and Purpose. : "the city" has the meaning ascribed to it in the opening paragraph of this Agreement. "the City Manager" has the meaning ascribed to it in the opening paragraph of this Agreement. "Miami Job Development Program" means a federally -funded City job development program to be selected by the City and Developer. "Construction Contracts" means those certain agreements between the Developer and a construction manager or general contractor for construction of the Developer Improvements, and includes subcontracts with respect to such ._.' work between the general contractor and subcontractors or, in the event Developer employs a construction manager rather than a general contractor, the trade contracts between Developer and trade contractors with respect to such -2- ',A J 84-1.483 it is the mutual desire of the parties to set forth their agreement and understanding of the goals for minority participation in the Project. in consideration of the foregoing and the covenants and agreements hereinafter set forth, the parties covenant and agree as follows: ARTICLE I DEFINITIONS Section 1.1 Defined Terms. As used herein the term: "this Agreement", means this Minority Participation Agreement, as the }r same may be modified or amended f rom time to time provided that any such modification or amendment must be consented to by a four fifths (4/5ths) vote of the Miami City Commission. . "Bayside Specialty Center" has the meaning ascribed to it in the pa<' x -�-. nt of Background and Purpose. . "the Cit " has the meaning ascribed to it in the opening paragraph of x ti this Agreement. hgio- "the City Manager" has the meaning ascribed to it in the opening 1 paragraph of this Agreement. ."Miami Job Development Program„ means a federally -funded City job development program to be selected by the City and Developer. "Construction Contracts" means those certain agreements between the Developer and a construction manager or general contractor for construction of the Developer Improvements, and includes subcontracts with respect to such work between the general contractor and subcontractors or, in the event Developer employs a construction manager rather than a general contractor, the trade contracts between Developer and trade contractors with respect to such -2- 84-1483 work. The term "construction contract" does not include any contract or subcontract with respect to Tenant Improvements. "Developer" has the meaning ascribed to it in the opening paragraph of this Agreement. "Foundation" means that certain entity which is to be created by the Developer to promote minority development in the City of Miami pursuant to Article V of this Agreement. "Foundation Contribution" has the meaning ascribed to it in Section 5.3. "Minority" means (i) the following persons as defined in the following definitions as approved by U.S. Department of Housing and Urban Development ("H.U.D."), or as may be changed by H.U.D. from time to time, with special emphasis with regard to Blacks and Hispanics: (a) Black (all persons having origins in any of the Black African racial groups not of Hispanic origin); (b) Hispanic (all persons of Mexican, Puerto Rican, Cuban, Central or South American or other Spanish culture or origin, regardless of race); (c) Asian and Pacific Islander (all persons having origins in any of the original peoples of the Far East, Southeast Asia, the Indian Sub -continent, or the Pacific Islands); and (d) American Indian or Alaskan Native (all persons having origins in any of the original peoples of North America and maintaining identifiable tribal affiliations through membership and participation or community identification). (ii) Females (whether or not included in the definition of Minority set forth in (i) above. - 3- 4rgk t OK swti �f� 84-1483 "Minority Business Enterprise" means a corporation, partnership, individual, sole proprietorship, joint stock company, joint venture or other legal entity which is at least 51% owned by a Minority or at least 51% of the stock outstanding is individually or collectively owned by a Minority, with special emphasis with regard to Minority ownership by Blacks and Hispanics. "Minority Tenant" means a person, firm, corporation or other legal entity using or occupying or entitled to use or occupy any part of the Project, who is a Minority or a Minority Business Enterprise. "Minority Committee" has the meaning ascribed to it in Article VII. "Parking Garage" has the meaning ascribed to it in the Statement of Background and Purpose. 11Parking Garage Lease" has the meaning ascribed to it in the Statement of Background and Purpose. "Private Industry Council" means the Private Industry Council of South Florida, a non-profit Florida corporation, having offices at 225 N.E. 34th Street, Miami, Florida 33137. "Project" has the meaning ascribed to it in the Statement of Background and Purpose. "Retail Lease" has the meaning ascribed to it in the Statement of Background and Purpose. "Section", "subsection", "para_graph" , "subparagrapn, , -cl_ auser , UL "subclause" followed by a number or letter means the section, subsection, paragraph, subparagraph, clause or subclause of this Agreement so designated. "SBA" means the Small Business Administration of the United States. "Tenant" means a person, firm, corporation or other legal entity sing or occupying or entitled to use or occupy any part of the Project. - 4 84-1483 - i - 4 x n WIN KATT A. w:'.,AWL "Tenant Improvements" means those improvements1 furnishings, fixtures and equipment required to be made to or installed in the premises leased by a Tenant pursuant to a Tenant's lease or other agreement pursuant to which the Tenant is entitled to occupy premises within the Project. Section 1.2 Terms in the Lease. All other capitalized terms shall have the meanings ascribed to them in the Lease. ARTICLE II CONSTRUCTION CONTRACTS Section 2.1 Goals• Developer agrees to exert diligent, good faith efforts to meet the following goals in relation to the construction of the Project: a. Thirty-five percent (35%) of the total contract price (without di.pllcstion) of all Construction Contracts to be awarded to Minority Business Enterprises, including, but not limited to, subcontractors and laborers, and b. Fifty percent (50%) of all construction jobs under Construction Contracts to be filled by Minorities. Developer agrees that where practicable and with the cooperation of applicable labor organizations, Developer will make reasonable efforts to fill such construction jobs by Dade County residents. Section 2.2. Developer's Obligation. The Developer's diligent, good faith efforts shall include, but not be limited to, the following: a. Designating specific construction trades for competitive bidding among Minority contractors, b. Encouraging joint ventures between Minority contractors and non -minority contractors, - 5 - 84--1483 c. Requiring the Developer's general COntractOr to use diligent efforts to hire Minorities from the neighborhoods having the highest rate of unemployment consistent with the need to avoid disruptions due to labor disputes, d. To the extent feasible, providing for small subcontracting packages in an effort to obtain bids from qualified Minority Business Enterprises, e. Waiving bonding requirements for qualified Minority Business Enterprises if (i) that Minority Business Enterprise otherwise meets the requirements of the Developer, (ii) the waiving of the bonding requirement is necessary in order for the bid to be competitive with non -minority bids,. and (iii) there is no other Minority Business Enterprise bidding on the same contract that does not require a waiver of the bonding requirements, f. As permitted by the project budget, and consistent with procedures to be established, subcontracts may be awarded to qualified Minority Business Enterprises even if that Minority Business Enterprise is not the lowest bid for particular proposal in order to meet the goal established in Section 2.1(a), g. Negotiating cash draws upon completion of specific segments of a subcontract or interim payments to a qualified Minority Business Enterprise to which a subcontract has been awarded if (i) the draws or interim payments are necessary, in the opinion of the Developer, to assist the Minority Business Enterprise in meeting any cash flow requirements for the subcontracts and (ii) such Minority Business Enterprise can provide Developer with the evidence required under the contract with Developer that the Minority Business Enterprise ,has paid all subcontractors, materialmen and laborers performing -6- jyi 2 84-1483 r work or supplying material for the Minority Business Enterprise into the Project except for those entitled to claim under such draw or interim payments h. Advising Minority Business Enterprises who are bidding on contracts, on how to obtain discounts for the purchase for supplies or materials for use on the Project to the degree such information is available so that the Minority Business Enterprise may bid competitively on a contract$ J. Advising Minority contractors, who are awarded contracts or subcontracts, who may request, or in Developer's judgment, may need, assistance on the development of managerial skills necessary to coordinate their contract with the other contracts in the Project, and j. Encouraging Developer's general contractor and subcontractors to purchase materials, supplies and equipment for work to be performed on the Project from Minority Business Enterprises. ARTICLE III PROFESSIONAL SERVICE CONTRACTS Developer agrees to use diligent, good faith efforts to hire consultants and professional service firms, that are either Minority owned or who have entered into subcontracts with Minority owned firms in connection with the development of the Project. ARTICLE IV LEASING Section 4.1 Goal. City and Developer agree that the Project .. should have the highest possible number of Minority Tenants consistent with MW � n 7' 84-1483 I �t ; z,tyf�� � J t 1 s �c J „„ x ' { � t �°, a` '"• i,.Y��' x �� +x +� '�{�Ca �,�� ' __— r - the economic viability of the Project, and that the setting of specific quotas for Minority Tenants would prejudice individual Lease negotiations to the possible economic detriment of the Project. The following sections set forth certain steps which Developer obligates itself to take to enable this goal to be accomplished and to enable the City to monitor Developer's performances hereunder. Section 4.2 Developer Dbligations. In pursuit of the goal set forth in Section 4.1, Developer will take the following steps: a. In advance of the beginning of Project leasing, Developer will set aside not less than fifty percent (50%) of the number of spaces to be leased in the Project for leasing to Minority Tenants. b. Developer will designate specific high volume leasing categories in which Minority Tenants have been successful in other projects developed by a1-fi1iates of The Rouse Company and will hold these categories off the market until November 1, 1985 (such date to be extended in the event that before November 19 1985 the project opening date is extended beyond November 19 1986), making them available for leasing to Minority Tenants, consistent with the Project's need to meet rental objectives and to have the maximum possible number of stores, restaurants, and eating places leased and open to the public when the Project opens for business. C. From the outset of the leasing process, Developer will make diligent, good faith efforts to identify a pool of prospective Minority Tenants, and will assign to this task leasing representatives based in Developer's field leasing office in the City of Miami. The efforts of these -8- t �✓ 1 t� 84-1483 representatives will be supplemented as necessary by personnel from the home office of Developer's parent, The Rouse Company. d. Developer will also make diligentl good faith efforts to identify and, as appropriate, stimulate joint ventures between prospective Minority merchants and qualified non -minority business persons or entities in order to provide the Minority partner with the financial or management support necessary or desirable to become and remain a viable Minority Tenant in the Project. Upon agreement of both the qualified minority and non -minority parties, the minority partner in such venture shall have the right to buy-out the non -minority interests in the venture. e. Developer will establish a regular communications and outreach program with the Minority community in the City of Miami and Dade County to make known available Minority Tenant opportunities at the Project. This prug;am will include a public relations campaign (including advertising in local Minority media), presentations to local Minority community groups, mailings to known Minority Business Enterprises, and independent canvassing of local Minority merchants by Developer's leasing representatives. f. Developer will implement a program for interviewing and qualifying Minority Tenant prospects once they are identified. Interested prospects will be required to complete simple qualification questionnaires indicating, among other things, proposed merchandise category, previous business experience and credit history •(if any), banking relationships (if any), and the reasons why the prospect believes he or she would be a successful merchant. Each prospect completing and returning a questionnaire - 9 - 84-1483 a Developers leasingrepresentatives after whicha will be contacted by {` preliminary judgment will be made by Developer whether to pursue further a,}, negotiations with prospect and, if so, whether the prospect will requ re t" financial assistance in orde r to start up a business in the Project. `.'. Developer agrees to make such judgments promptly and in good faith, (but n any event such judgment shall be in Developer's sole discretion) and, if such a judgment is made in favor of a prospective Minority Tenant, to negotiate in good faith a lease with such prospect and, where appropriate, to assist such i prospect in arranging the necessary financial assistance. g. In order to assist prospective Minority Tenants in securing debt and equity financing to start up a business in the Project, Developer will initiate and coordinate a financing program for Minority Tenants and will �* enlist the participation of local banks, local businesses, the SBA, and local, ; -.ate. and federal business development assistance agencies. As part of this programs Developer will provide cash grants as tenant allowances to fund a portion of the startup, inventory, leasehold improvement and capital equipment costs. Developer shall negotiate the amount of such grants on a Tenant -by -Tenant basis, taking into account such factors, among others, as a Tenant's financial nancial net worth and equity contribution, size and use of the f prospective leasehold,premises, the estimated cost of Tenant Improvements, the a flow .for the prospective new business, and the terms and r estimated cash x conditions of debt and equity financing then available from all other sources to the prospective Minority Tenant, and the amount of cash grants made to comparable Minority merchants in other projects developed by affiliates of e Rouse Company, and the amounts budgeted for this purpose for the Project. The r, parties hereto recognize that neither the goals set forth in Section 4. nor - 10 - M •'> Sri r n } 6 LA Yi 4� M- �': 84=1483 84=1483 i the economic viability of the Project require that every Minority Tenant in the Project receive a cash grant from Developer. The parties also agree that each prospective Minority Tenant obtaining financing through this program will be required to contribute, and to demonstrate the ability to contribute, an appropriate amount of the start up costs of the new business as equity. j h. Where needed to assist prospective Minority Tenants to establish 4 L k 1 and maintain new businesses at the Project, Developer will provide technical assistance using personnel stationed at Developer's field leasing office in F the City of Miami or assigned as necessary from the home office of Developer's j parent, The Rouse Company, as follows: (i) Developer's financial personnel working with local minority Y business development assistance groups, will assist Minority Tenants in z preparing financing applications and packages and in processing such G-plications through private and public lending institutions. (ii) Developer's leasing and merchandising/design personnel and consultants will work with prospective Minority Tenants and their desi Hers, consultants, suppliers and contractors to improve store design g and layout and merchandising presentation, to reduce store and improvement costs where feasible, and to expedite store construction and equipment 4 s eyyzy. delivery where feasible. *� ARTICLE V r�y 'ter FOUNDATION Section 5.1 Pu pose• The Developer shall establish or cause to be established the Foundation for the following purposes: - 11- 84-1483 a. Creating and administering a loan guaranty program for venture capital loans to Minority Business Enterprises, b. Creating a vocational/educational scholarship fund for Minorities, and C. Providing technical assistance to local community development corporations engaged in economic development, such as the Miami -Dade County. Chamber of Commerce and Latin Chamber of Commerce, in the form of management, legal, accounting, business development, such as counseling and training, and other related services; to assist the community development corporations in developing adequate support systems; and the coordination and integration of resources towards economic development of Minority Business Enterprises. Section 5.2 Establishment. The Foundation shall be established no later than six (6) months prior to the Opening Date. The Foundation shall the status of a non-profit organization under Section 501(c)(3) of the Internal Revenue Code. The Foundation shall have a board consisting of fifteen (15) directors with one-third of the directors appointed by the Developer, one-third• of the directors appointed by the City Commission and one-third of the directors representing community organizations and elected by the balance of the board. The City snail noL oe 11Z14Ub1GU orr�-•- --- - - (5) Board members until such time as the Developer shall have appointed all five (5) of its Board members. Section 5.3 Foundation Contribution. Developer agrees to pay to the Foundation, ten percent (10%) of Net Income Available for Distribution (as the term is defined in the Retail Lease) or $100,000, whichever is greater ("Foundation Contribution"). The minimum $100,000 payment shall be made in equal quarterly installments commencing on the Rent Commencement Date (as defined in the Retail Lease), and ending at the end of the term of the Retail - 12 - 84-1483 `r Lease. The Foundation Contribution shall be adjusted at the end of each „° Rental Year (as defined in the Retail Lease) based upon the Annual Financial ' Statement. If the Annual Financial Statement shall disclose a liability for the Foundation Contribution in excess of the amount paid by Developer for the period in question, Developer shall promptly pay such additional Foundation Contribution to the Foundation. Notwithstanding the foregoing, should the Foundation cease to be a 501(c)(3) tax-exempt organization, the Foundation Contribution shall either (i) be placed in an interest bearing escrow account and paid to the Foundation at such time as the Foundation shall satisfactorily -3' prove to Developer that it has qualified as a 501(c)(3) tax-exempt organization ' or (ii) at the written request of the City, be paid to such other non-profit organization qualified as a 501(c)(3) tax-exempt organization which is reasonaoiy accepLaoie Lo ueveloper ana wn1Cn has goals and purposes similar to the Foundation. The Foundation Contribution shall be the only financial obligation that Developer shall have to the Foundation or such other non-profit organization specified in (ii) above. ARTICLE VI TENANT EMPLOYMENT OPERATIONS Section 6.1 Tenant Employment. Developer agrees to exert diligent, good faith efforts to work with. Tenants in the Project to attain a Tenant employment .� .goal for Minorities of seventy-five percent (759G) of tenant employment openings. While it is recognized that Developer cannot require Tenants to meet an particular y p ticular hiring quotas, Developer shall: j a., Work with the Miami Job Development Program and Private Industry G Council personnel to establish a referral service to be located at the Project '- - 13 - 84-1483 i Y% d L t "k � it 3 1 �✓ 1 i.t site to take applications, screen applicants and refer prospective Minority employees to Tenants, TM b. Provide the referral service with office facilities at or near the Project site, during the construction period, c. Prov �:ide a coordinator to survey the employment needs of Tenants .:: as soon as possible after leases are signed and to provide such information to the referral service, and d. Advise Tenants of the availibility of the referral service as a ' source for meeting potential employment needs. Y'. Section 6.2 Developer Employment. Developer agrees to use its i :I diligent, good faith efforts to hire Minorities for at least seventy-five percent (75%) of its project operation positions and for at least fifty percent (50%) of key management positions of the Developer. With regard to those key management positions, the Developer's diligent, good faith efforts shall include identifying five supervisory positions in the areas of project management, engineering, maintenance and promotions to be filled by qualified �.._ Minorities recruited from the Miami area. ARTICLE VII 7` MINORITY COMMITTEE On or before 120 days following execution of the Lease Agreement, Developer will establish an ad hoc minority advisory and assistance committee ("Minority Committee") consisting of responsible representatives of Minority and other community groups, government agencies, and the media. From the date of this Agreement until the opening Date, Developer will meet with the Minority Committee on not less than a quarterly basis. The Minority Committee - 14 - 84-1483 will (a) advise Developer on additional means and methods of accomplishing 4^ r Developer's goals as set forth herein; (b) assist Developer in communicating information to the Minority community concerning opportunities for Minority participation in the development, construction, leasing and management of the W Project; (c) review on a regular basis Developer's progress with the minority ' participation program. The Minority Committee shall meet at Developer's field office in the City of Miami. Developer will maintain minutes of the >.<. Committee's meetings at its field office in the City of Miami available for h Z inspection by the City and the members of the Committee upon reasonable notice. ARTICLE VIII self {: MISCELLANEOUS PROVISIONS Section 8.1 Florida and Local Laws Prevail. This Agreement shall rx gjv-rned by the laws of the state of Florida. Section 8.2 Conflicts of Interest; City Representatives Not Individually Liable. No member, official, representative, or employee of the City or the City Manager shall have any personal interest, direct or indirect, in this Agreement, nor shall any such member, official, representative or employee participate in any decision relating to this Agreement which affects his or her personal interest of any corporation, partnership or association in Y 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 tn y 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 ,x - due to Developer or successor or on any obligations under the terms of the Agreement. - 15 - 84-1483. 7 0 Section 8.3 Notice. A notice of communication under this Agreement by either the City or the City Manager, on the one hand, to Developer, or, on the other hand, by Developer to the City or the City Manager shall be sufficiently given or delivered if dispatched by registered or certified mail, postage prepaid, return receipt requested or given by hand or other actual delivery to such party; and a Developer. In the case of a notice or communication to . Developer, if addressed as follows: General Counsel Bayside Center Limited Partnership 10275 Little Patuxent Parkway Columbia, Maryland 21044 b. City Manager. In the case of a notice or communication to the City of the City Manager, if addressed as follows: City of Miami, City Manager 3500 Pan American Drive Miami, Florida 33133 or if such notice is addressed in such other way in respect to any of the foregoing parties as that party may, from time to time, designate in writing, dispatched as provided in this Section 8.3. Section 8.4 Parking Garage Agreement. Notwithstanding any other provision of this Agreement or the Lease to the contrary, the goals set forth in Article IV shall not apply to the operation of the Parking Garage and the surface parking to be constructed on Area B Surface Lot pursuant to that certain management agreement to be entered into between Developer and the Department of Off -Street Parking. Section 8.5 Titles of Articles and Sections. Any titles of the several parts, Articles and Sections of this Agreement are inserted for - 16 - 84-1483 convenience of reference only and shall be disregarded in construing or interpreting any of its provisions. Section 8.6 Counterparts. This Agreement is executed in six (6) counterparts, each of which shall be deemed an original, and such counterpart shall constitute one and the same instrument. Section 8.7 Successors and Assigns. Except to the extent limited elsewhere in this Lease, all of the covenants, conditions and obligations contained in this Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the City and the Developer. Section 8.8 Records. Developer shall maintain at its field office in the City of Miami records to enable the City to monitor Developer's performance under this Agreement and will permit the City to inspect such records upon reasonable notice. Certificates. The City and Developer shall Section 8.9 Estoppel at any time and from time to time, within thirty (30) days after written request,by the other, execute, acknowledge and deliver to the other party which has requested the same or to any prospective Leasehold Mortgagee, assignee or Subtenant designated by Developer a certificate stating (i) this Agreement is in full force and effect and has not been modified or amended in any way, or, if there have been modifications, identifying such modification agreement, and if this Agreement is not in full force and effect, the certificate shall so state; (ii) this Agreement as modified represents the entire agreement between the parties, or, if it does not, the certificate should so state; (iii) the dates on which this Agreement took effect and if applicable,. terminated; (iv) all conditions under this Agreement by the City or Developer, as the case may be, have been satisfied and, as of the date of - 17 - 84-1483 0 Ab such certificate, there are no defaults by the City or the Developer, as the case may be or if such conditions have not been satisfied or if a party is in default, the certificate should so state. The party to whom any such certificate shall be issued may rely on the matters therein set forth and thereafter the party issuing the same shall be 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. ARTICLE IX DISPUTES • If a dispute shall arise between the City and the Developer under this Agreement including, but not limited to, whether or not the Developer has made diligent, good faith efforts to meet the goals set forth herein, such dispute she" be resolved by an Arbitrator selected according to the provisions of Section 10.5 of the Lease. The Arbitration shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association. If the Arbitrator shall determine that Developer has failed to make diligent, good faith efforts to meet the goals set forth herein, the Arbitrator may award monetary damages to the City in such amounts as the Arbitrator determines to be appropriate, considering the nature, extent and wilfulness of Developer's failure. Developer shall have 60 days after the Arbitrator's award and prior to the effective date of the damage award in which to cure such failure. The Arbitrator may award the costs of the arbitration, including reasonable attorney fees, against the unsuccessful party to the arbitration. An Arbitrator's decision shall be final and binding upon the parties and enforceable in a court of competent jurisdiction. -18- 84-JL483 The decision of the Arbitrator in s proceeding brought under this provision shall not prevent the City from bringing further proceedings under this provision arising from a continuing or different failure by Developer to use diligent, good faith efforts to achieve the goals set forth in Section 2.1; provided, however, the Arbitrator shall not make more than one award under this provision for the Developer's failure to use diligent good faith efforts arising from a particular set of facts. IN WITNESS WHEREOF, ROUSE-MIAMI, INC., the sole general partner of BAYSIDE CENTER LIMITED PARTNERSHIP, has caused this Minority Participation Agreement to be signed in its name by its Vice President and its corporate seal to be hereunto affixed, duly attested by its Assistant Secretary, and the CITY COMMISSION OF MIAMI has caused this Minority Participation Agreement to be signed by Randolph Rosencrantz, the City Manager, and duly attested to by f;E6pl-. G. Ongie, the City Clerk, on the day and year first hereinabove written. ATTEST: John W. Steele III, Assistant Secretary [Corporate Seal] ATTEST: Ralph G. Ong e, City Clerk APPROVED AS TO FORM AND CORRECTNESS: LUCIA ALLEN DOUGHERTY CITY ATTORNEY BAYSIDE CENTER LIMITED PARTNERSHIP By: ROUSE-MIAMI, INC., general partner By. Vice President THE CITY OF MIAMI, A MUNICIPAL CORPO- RATION OF THE STATE OF FLORIDA By: Randolph Rosencrantz, City Manager 84-1483 0A. 0# /,o (&44% A. / w✓ J-84-1270 A. RESOLUTION NO. A RESOLUTION REAFFIRMING THE APPROVAL OF THE PARKING GARAGE MANAGEMENT AGREEMENT BETWEEN THE DEPARTMENT OF OFF STREET PARKING AND BAYSIDE CENTER LIMITED PARTNERSHIP, THE PROPOSED MINORITY PARTNERS OF -THE BAYSIDE CENTER LIMITED PARTNERSHIP, THE SUPPLEMENTAL AGREEMENT AND THE AMENDMENT TO THE EXISTING LICENSE AGREEMENT REGARDING THE MIAMI GRAND PRIX, IN SUBSTANTIALLY THE FORM ATTACHED, AND AUTHORIZING THEIR EXECUTION BY THE CITY MANAGER; AND APPROVING AND AUTHORIZING THE EXECUTION OF THE FOLL EEMENT SUBSTANTIALLY THE FORM ATTACHED: THE LEASE AGREEMENT BETWEEN THE CITY AND BAYSIDE CENTER LIMITED PARTNERSHIP ON BEHALF OF ROUSE-MIAMI, INC., AN AFFILIATE OF THE ROUSE COMPANY OF COLUMBIA, MARYLAND (HEREINAFTER REFERRED TO AS "BAYSIDE CENTER LIMITED PARTNERSHIP"), FOR THE PLANNING AND DESIGN, CONSTRUCTION, LEASING AND MANAGEMENT OF THE BAYSIDE SPECIALTY CENTER TO BE LOCATED ON CITY -OWNED PROPERTY; 2 THE LEASE AGREEMENT BETWEEN THE CITY AND BAYSIDE CEN LIMITED PARTNERSHIP FOR THE PLANNING AND DESIGN, CONSTRUCTION, LEASING AND MANAGEMENT OF A PARKING GARAGE AND SURFACE PARKING FACILITIES IN CONNECTION WITH THE BAYSIDE 'SPECIALTY TED ON CITY -OWNED PROPERTY; Ito THE AGREEMENT BETWEEN TH DEPARTMENT OF OFF-STREET PARKING TO REIMBURSE THE DEPARTMENT IN THE AMOUNT OF $80,000 FOR LOSS OF REVENUES CAUSED BY THE ELIMINATION OF PARKING METERS TO CONSTRUCT THE PARKING GARAGE AND SURFACE PARKING FACILITIES IN CONNECTION WITH THE BAYSIDE SPECIALTY CENTER; AND (D) THE MINORITY PARTICIPATION AGREEMENT BETWEEN THE CITY AND BAYSIDE CENTER LIMITED PARTNERSHIP, ALL OF WHICH INCORPORATE CHANGES PREVIOUSLY MADE BY THE COMMISSION. 84,"„14:13 WHEREAS, on December 7, 1984, the Commission passed Motions Numbered 84-1341.1, 84-1341.21 84-1341.3, 84-1341.49 84-1341.5, 84-1341.6, and 84-1341.7 approving the following agreements and items, and authorizing the execution of the agreements by the City Manager: the Parking Garage Management Agreement between the Department of Off Street Parking and Bayside Center Limited Partnership, the proposed Minority Partners of the Bayside Center Limited Partnership, the Supplemental Agreement and the Amendment to the existing License Agreement regarding the Miami Grand Prix, all in substantially the form attached, and approving and authorizing the execution by the City Manager of the following agreements in substantially the form attached, subject to certain amendments thereto: (A) the Lease Agreement between the City and Bayside Center Limited Partnership on behalf of Rouse -Miami, Inc., an affiliate of the Rouse Company of Columbia, Maryland (hereinafter referred to as "Bayside Center Limited Partnership"), for the planning and design, construction, leasing and management of the Bayside BAYSIDE PARKING GARAGE R-84-1483 INDEX OF BACKUP PAPERWORK 1. PARKING GARAGE MANAGEMENT AGREEMENT between Bayside Center Limited Partnership and Dept. of Off -Street Parking of the City of Miami (December , 1984). 2. SUPPLEMENTAL AGREEMENT between City and Bayside Center Limited Partnership. (December , 1984) with exhibits A and B. 3. LEASE AGREEMENT between Bayside Center Limited Partnership and City (December , 1984) for Bayside Specialty Center Retail Parcel. 4. EXHIBIT A-1 (blueprints) 5. EXHIBIT A-2 (Plat for Bayfront Park - not available) 6. EXHIBIT A-3 (Site Plan -Retail Parcel- This document appears as Exhibit A-3 in the lease agreement between Bayside Limited Partnership and City of Miami Parking Garage. 7. EXHIBIT B-1: Retail Parcel - November 21, 1984, revised December 3, 1984. 8. EXHIBIT B-2: Legal Description Area "A-411 - December 4, 1984 9. EXHIBIT B-3: Legal Description Area "A-5" - December 4, 1984 10. EXHIBIT D: Agreement of Guaranty (December 1984) 11. EXHIBIT E: Permitted Encumbrances and Easements (not available) 12. EXHIBIT F: Site Location Plan (September 1983) Bayside, The Rouse Company 13. EXHIBIT G: Table of events with dates 14. EXHIBIT H: Minority Participation Agreement between City and Bayside Center Limited Partnership (December _, 1984) 15. EXHIBIT I: Rock Garden Restaurant Site Plan (blueprints) 16. EXHIBIT J: (Bayside blueprints) 17. LEASE AGREEMENT between Bayside Center Limited Partnership and City of Miami (December _, 1984) on Bayside Specialty Center Parking Garage. 18. EXHIBIT A-1: Survey (Parking Garage) (blank page) 19. EXHIBIT A-2: Plat of Bayfront Park (Parking Garage) (blank page) 20. EXHIBIT A-3: (Bayside blueprints) 21. EXHIBIT B-1: Garage Parcel (November 21, 1984, revised December 3, 1984) 22. EXHIBIT B-4: Legal Description Area "B" (December 4, 1984) 23. EXHIBIT D: Construction Schedule (Parking Garage) (not available) 24. EXHIBIT E: Agreement of Guaranty (December _, 1984) 25. EXHIBIT F: List of Permitted Encumbrances (Parking Garage) (not available) 26. EXHIBIT G: Survey Showing Easements and Utilities (not available) 27. EXHIBIT H: List of Approved Concept Plans (Parking Garage) (not available) 28. AGREEMENT: between City and Dept of Off -Street Parking (December _, 1984) 29. MINORITY PARTICIPATION AGREEMENT: between the City and Bayside Center Limited Partnership (December _, 1984)