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LEASE AGREEMENT
between
BAYSIDE CENTER LIMITED PARTNERSHIP
and
CITY OF MIAMI
December 5, 1984
BAYSIDE SPECIALTY CENTER
RETAIL PARCEL
Draft - 12/ 01/84
TABLE OF CONTENTS
ARTICLE I - EXHIBITS AND DEFINITIONS
R J
PAGE
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.
25
Section
2.2.
Restrictive Covenants . . . . . . . . . .
. . . . .
26
a. Use Prohibitions of the Leased Property. . . .
26
b. No Discrimination. . . . . . . . . .
. . . . .
27
c. Permitted Uses for Leased Property .
. . . . .
27
d. Use Prohibitions of the Park Site
and Garage Parcel . . . . . . . .
. . . . .
28
e. Enforceability . . . . . . . . . . .
. . . . .
29
Section
2.3.
Easements . . . . . . . . . . . . . . . .
. . . . .
29
a. Existing Easements . . . . . . . . .
. . . . .
29
b. Easement Granted to Developer. . . .
. . . . .
30
c. Limitations on Easements Rights. . .
. . . . .
32
d. Duration of Easements . . . . . . . .
. . . . .
34
e. Confirmatory Instruments . . . . . .
. . . . .
34
Section
2.4.
Title of Leased Property . . . . . . . .
. . . . .
35
Section
2.5.
Rental . .
35
a. Rentals Payable.
35
b. Continuous Operation . . . . . . . .
. . . . .
37
c. Payment of Rental . . . . . . . . . .
. . . . .
37
d. Refinancing . . . . . . . . . . . . .
. . . . .
38
e. Developer's Records . . . . . . . .
. . . . .
39
f. Pre -Construction Contributions . . .
. . . . .
40
Section
2.6.
Covenants for Payment of Public
Charges by Developer . . . . . . . .
. . . . .
43
Section
2.7.
Approval and Consents . . . . . . . . . .
. . . . .
44
Section
2.8.
Security and Police Protection . . . . .
. . . . .
44
Section
2.9.
City Improvements . . . . . . . . . . . .
. . . . .
44
Section
2.10.
Condition of Leased Property . . . . . .
. . . . .
45
Section
2.11.
Roadways and Utilities . . . . . . . . .
. . . . .
46
(i)
TABLE OF CONTENTS
ARTICLE III - CONSTRUCTION OF IMPROVEMENTS
Section
3.1.
Section
3.2.
Section
3.3.
Section
3.4.
Section
3.5.
Section
3.6.
Section
3.7.
Section
3.8.
Section
3.9.
Section
3.10.
Section
3.11.
Section
3.12.
Section
3.13.
Section
3.14.
Section
3.15.
Conformity of Plans . . . . . . . . . . . . . . . .
Preliminary Plans . . . . . . . . . . . . . . . . .
Construction Plans . . . . . . . . . . . . . . . .
Facilities to be Constructed . . . . . . . . . . .
Maintenance of Park Site and Leased Property . . .
Access . . . . . . . . . . . . . . . . . . . . . .
Construction Period . . . . . . . . . . . . . . . .
Progress of Construction . . . . . . . . . . . . .
Certificate of Final Completion. . . . . . . . . .
Connection of Building to Utilities. . . . . . . .
Permits and Approvals . . . . . . . . . . . . . . .
Compliance with Laws . . . . . . . . . . . . . . .
Extension of Time Requirements . . . . . . . . . .
Alterations and Renovations. . . . . . . . . . . .
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. Definitions. . . . . . .
Section 5.2. Purposes of Restrictions on Transfer . .
Section 5.3. Transfers . . . . . . . . . . . . . .
Section 5.4. Notice of Transfer; Information as to Shareholders
Section 5.5. Effectuation of Certain Permitted Transfers. . . .
Section 5.6. Transfers of the City's Interests. . . . . . . . .
Section 5.7. Subletting . . . . . . . . . . . . . . . . . . . .
Section 5.8. Minority participation in ownership. . . . . . . .
ARTICLE VI - MORTGAGE.FINANCING; RIGHTS OF MORTGAGEE
Section 6.1. Leasehold Mortgages. . . .. . . . . . . . . . . . .
Section 6.2. No Waiver of Developer's Obligations
=' or City' s Rights . . . . . . . . . . . . . . . .
ARTICLE VII - REMEDIE'S
Section 7.1. Events of Default - Developer. . . . . . . . . . .
a. Failure - Payment of Money .
b. Failure - Performance of Other Covenants, Etc.
c. Bankruptcy, etc . . . . . . . . . . . . . . . .
ii)
F2
47
47
47
49
51
51
51
52
52
53
54
54
56
56
57-
57
57
57
57
58
58
60
61
63
64
65
66
67
67
67
77
77
77
77
78
78
TABLE OF CONTENTS
PAGE
Section
7.2.
Remedies for Developer's Default . . . . . . . .
. 79
Section
7.3.
Events of Default - City . . . . . . . . . . . .
. 79
a. Events of Default . . . . . . . . . . . . . .
79
b. Remedies for City's Default. . . . . . . . .
. 80
Section
7,4.
Unavoidable Delay . . . . . . . . . . . . . . . .
. 81
Section
7.5.
Obligations, Rights and Remedies Cumulative. . .
. 82
ARTICLE
VIII
- PROTECTION AGAINST MECHANICS' LIENS AND
OTHER CLAIMS INDEMNIFICATION
82
<.
Section
8.1.
Mechanic's Liens and Payments of Obligations . .
. 82
a. Developer to Discharge Mechanics' Liens. . .
. 82
b. Payment of Materialmen and Suppliers
83
`
Section-
8.2.
Indemnity. h .
84
! `
4
ARTICLE
IX -
INSURANCE
84
Section
9.1.
Insurance Coverage . . . . . . . . . . . . . . .
. 84
a. Property Insurance . . . . . . . . . . . . .
. 84
==
b. Rental Value Insurance . . . . . . . . . . .
.85
c. Automobile Liability Insurance . . . . . . .
. 86
d. Liability Insurance . . . . . . . . . . . . .
. 86
Worker's Compensation . . . . . . . . . . . .
. 87
`A-
f. Copies . . . . . . . . . . . . . . . . . . .
. 87
Section
9.2.
Responsible Companies - Blanket
'
Insurance Permitted . . . . . . . . . . . . . .
. 87
Section
9.3.
Named Insureds - Notice to City of Cancellation.
88
Y `;-;
� ; ?
Section
9.4.
City May Procure Insurance if Developer
x`
r
Fails To Do So . . . . . . . . . . . . . . . .
. 88
Section
9.5.
Insurance Does Not Waive Developer's Obligations
89
Section
9.6.
Loss or Damage Not to Terminate Rental
9
or this Agreement . . . . . . . . . . . . . . .
. 89
-�
._.
Section
Section
9.7,
9.8.
Proof of Loss.
Property Insurance Proceeds. . . . . . . . . . .
89
. 89
a. Authorized Payment . . . . . . . . . . . . .
. $9
K#
b. Disposition of Insurance Proceeds
for Reconstruction ... . . . . . . . . . .
. 90
;,,
c. Lenders and Lender/Landlords May Have Benefit
of Insurance Fund for Reconstruction . . .
. 91
Section
9.9.
Covenant for Commencement and Completion
4t
of Reconstruction. . .
91
Section
9.10.
nt
Developer's Rights In the Eveof Uninsured
_
Major Casualty . . . . . . . . . . . . . . . .
. 92
Section
9.11.
Casualty to Parking Garage . . . . . . . . . . .
. 94
TABLE OF CONTENTS
PAGE
ARTICLE
X - CONDEMNATION
95
Section
10.1.
Entire Leased Property Taken by Condemnation . . .
95
r
Section
10.2.
Partial Taking of Leased Property by Condemnation.
96
zR
Section
10.3.
Adjustment of Rent Upon Partial Taking . . . . . .
98
Section
10.4.
Taking for Temporary Use or of Leasehold Estate.
98
Section
10.5.
Arbitration. . . . . . .. . . . . . . . . . . . . .
99
:`.
Section
10.6.
Parking Garage Taken by Condemnation . . . . . . .
102
ARTICLE
XI -
RIGHTS OF OCCUPANCY AND ACCESS; MAINTENANCE;
OWNERSHIP OF IMPROVEMENTS
103
Section
11.1.
Quiet Enjoyment . . . . . . . . . . . . . . . . . .
103
•'�x.
� Section
11.2.
Waste. .
103
;.
Section
11.3.
Maintenance and Operation of Improvements.
103
Section
11.4.
Ownership of Improvements During Lease . . . . . .
103*
Section
11.5.
Surrender of Leased Property . . . . . . . .
104
Section
11.6.
City and Developer to Join in Certain Actions.
104
ARTICLE
XII -
MISCELLANEOUS PROVISIONS
105
Section
12.1.
No Partnership or Joint Venture. . . . . . . . . .
105
"k
Section
12.2.
Recording, Documentary Stamps. . . . . . . . . . .
105
Section
12.3.
Florida and Local Laws Prevail . . . . . . . . . .
105
Section
12.4.
Conflicts of Interest; City Representatives
Not Individually Liable. . . .
106
Section
12.5.
Notice . . . . . . . . . . . . . . . . . . . . . .
107
a. Developer . . . . . . . . . . . . . . . . . . .
107
ti >.
b. Developer's Records . . . . . . . . . . . . . .
107
c. City Manager
107
Section
12.6.
Estoppel Certificates . . . . . . . . . . . . . . .
108
Section
12.7.
Provisions Not Merged with Deed. . . . . . . . . .
109
-
Section
12.8.
Titles of Articles and Sections. . . . . . . . . .
109
Section
12.9.
Counterparts . . . . . . . . . . . . . . . . . . .
109
".
Section
12.10.
Nondisturbance and Attornment. . . . . . . . . . .
109
Section
12.11.
Non and Equal Opportunity . . . . .
110
Section
12.12.
Successors and Assigns . .•. . . . . . . . . . . .
110
EXHIBITS
Exhibit
A-1
-- Site Plan for Leased Property
Exhibit
A-2
-- Site Plan for Bayfront Park
Exhibit
B-1
-- Legal Description of Leased Property
'
Exhibit
B-2'
-- Legal Description of Area A-4
Exhibit
B-3
-- Legal Description of Area A-5
'-err
Exhibit
B-4
-- Legal Description of Area B
(iv)
TABLE OF CONTENTS
I
Exhibit C
Exhibit D
Exhibit E
Exhibit F
Exhibit G
Exhibit H
Exhibit I
Exhibit J
Exhibit K
1545F/452A
EXHIBITS (con't.)
-- List of improvements to be paid for by the
Tenant Allowance
-- Form of Guaranty
-- Permitted Encumbrances and Easements
-- List of Approved Concept Plans
Development Schedule
-- Minority Participation Agreement
-- The Design Development Plans for Restaurant in Area A-4
-- Maintenance Responsibility Plan
-- Survey Showing All Easements and Utilities Located at the
Leased Property
( v)
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
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 Site Plan attached hereto as Exhibits
A-1 and 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
"Leased Property"; land,,
(b) A parcel of land,^ shown and designated on Exhibit A-1 as the
"Garage Parcel" ;
(c) A parcel of land,A shown and designated on Exhibit A-1 as "Area
B►1;
(d) A parcel of land , shown and designated on Exhibit A-1 as "Area
A-4" ; and
(e) A parcel of land, shown and designated on Exhibit A-1 as "Area
A-5" ; and
(f) The remainder of Bayf ront 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
Bayf rout Park.
Developer submitted a proposal to develop a mixed -use project to be
` known as "Bayside Specialty Center"; which will consist of the following:
• (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;
4W (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 containnna flower mart, produce mart, cafes, fisherman's boat
market, and a major water feature;
(d) A pier park containing (1) a restaurant of approximately 15, 000
square feet, (2) a pedestrian park, (3) a marina pavilion, and (4) a floating
band pavilion ("Pier Park") to be located adjacent to the marina shown and
designated as "Miamarina" on Exhibit A-1;
-2-
(e) Reflections Restaurant, containing approximately 25,000 square
f eet;
(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 -
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
ja 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 -- Site Plan of the Leased Property
Exhibit A-2 -- Site Plan of Bayfront Park
Exhibit B-1 -- Legal Description of Leased Property
Exhibit B-2 -- Legal Description of Area A-4
Exhibit B-3 -- Legal Description of Area A-5
Exhibit B-4 -- Legal Description of Area B
Exhibit C -- List of improvements to be paid for by the Tenant
Allowance
Exhibit D -- Form of Guaranty by the Rouse Company of Columbia,
Maryland
Exhibit E -- Permitted Encumbrances and Easements
- 4 -
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
Section 1.2 Defined Terms. AS used herein the term:
"Acceptable Operator" means an entity possessing the experience,
qualifications, good reputation, financial resources and adequate personnel
necessary for the proper performance of all of Developer's obligations under
this Lease in a manner consonant with the quality, reputation and economic
viability of the Project, including (without limitation) the obligation of
Annual Base Rental theretofore payable by Developer under this Lease.
"Acceptable Operator Agreement" has the meaning ascribed to it in
Section 6(c) (iv) .
5.3(d) .
"Acceptable Purchaser" has the meaning ascribed to it in Section
"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 -
"Arbitration Panel" has the meaning ascribed to it in Section 10.5
"Area A 1", "Area A-2", "Area A-3", "Area A-4" and "Area A-5" have
the meanings ascribed to them in the Statement of Background and Purpose.
",Area 6" 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
i 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 ront 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
.41,� 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 land 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 -
"Certificate of Final Completion" has the meaning ascribed to it in
Section 3.9.
"the Ciitty" has the meaning ascribed to it in the opening paragraph of
this Agreement.
"City Improvements" has the meaning ascribed to it in Section 2.9.
"City Maintenance Area" has the meaning ascribed to it in Section 3.5.
"City Storm Sewer Easement" has the meaning ascribed to it in
subclause (ii) of Section 2.3(a).
"the City Manager" has the meaning ascribed to it in the opening
paragraph of this Agreement.
"Common Area" means those areas and facilities which may be furnished
by Developer within the Leased Property for the non-exclusive general common
use of Subtenants and other occupants of the Improvements, their officers,
agents, employees and customers, including (without limitation) all malls,
courts, ramps, landscaped and planted areas, eating and picnic areas,
retaining walls, stairways, escalators, elevators, fire corridors, bus stops,
first aid stations, comfort stations or restrooms, civic facilities, meeting
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 that the City Manager shall _j sst,_
the Certificate of Final Completion.
"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 -
"Cumulative Credit Balance Account" has the meaning ascribed to it in
Section 2.5(a).
"Debt Service Payments" means all principal and interest, rental and
other sums and amounts paid or payable for or during the applicable or
pertinent period or in connection with any Leasehold Mortgage or any
Sale-Subleaseback Transaction of the Developer's estate in the Leased Property
and 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.
1 "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 4costs
and expenses actually incurred by Developer for the purpose of and properly
allocated to the initial development and construction of the Developer
- 8 -
Improvements at the Leased Property (together with any and all improvements.t&
.{ieses 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;
A (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 6ayside 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 -
(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
I
trailers or other temporary office structures, barges and other vessels,
automobiles, office furniture,, equipment, supplies, telephone, stationery,
postage and duplication;
(12) The salaries, fringe benefits, payroll taxes, travel and
moving expenses, and. other costs of employment at such field office of (i)
managers and promotion directors (but only to the extent incurred prior to the
AWN 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,
cow.issions 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; 4
(16) Other reasonable costs and expenses which are of a type
usually and customarily incurred in connection with development of a specialty
retail center.
"Developer Equity Investment" means the amount equal to the surn of
(i) Development Cost, (ii) an amount equal from time to time to any unrecouped
and unfinanced cost of Capital Improvements made and paid for by Developer
after initial construction of the Developer Improvements, and (iii) Operating
- 10 -
Losses n(excluding Rentals) less k(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. A
"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 W of Section 2.3(b).
"Developer Vehicular Access Easement" has the meaning ascribed to it
in subclause (ii) of Section 2.3(b) .
"Events of the City's Default" has the meaning ascribed to it in
Section 7.3(a).
"Events of Developer's Default" has the meaning ascribed to it in
Section 7.1(a) .
"Fair Market Value" means the price, as of the date in question,
which a seller, willing but not obligated to sell, would accept for the City's
reversionary interest in the Leased Property and the Improvements or the
Developer's estate in the Leased Property and the Improvements (as the case
may be), and which a buyer, willing but not obligated to buy, would pay
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.
"Final Substructure Plans" has the meaning ascribed to it in Section
3.3.
"Financing Sublease" has the meaning ascribed to it in the definition
of "Sale-Subleaseback Transaction'.
"Foundation" has the meaning ascribed to it in Section 12.11.
"Grand Prix Agreement" has the meaning ascribed to it in Section
2.2(c) .
"Garage Parcel" has the meaning ascribed to it in the Statement of
Background and Purpose.
eN . "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 —
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.
"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
,.1 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
Subieases (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
,e1 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 -
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 principals.
"North Pavilion" has the meaning ascribed to it in the Statement of
Background and Purpose.
- 14 -
"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 principals made by the Developer
or which the Developer is obligated to make in the operation, ownership or
- 15 -
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
4 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 -
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 nis less than the aggregate of Operating Expenses plus
Debt Service Pavmenis 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 co
mprising the 8ayf ront 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 Garaoe 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.
ls
"Possession Date" has the meaning ascribed to it in Section 2.1(d).
"Project►'n 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 -
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.
2A.
"Renewal Term" has the meaning ascribed to it in clause (c) of Section
"Rent Commencement Date" means October 31, 1986, which is 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.
i "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.
- 18 -
"Restaurant Facilities" has the meaning ascribed to it in Section
2.10.
"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
..
,I.#
"subclause" followed by a number
.�
or letter means the section; subsection,
paragraph, subparagraph, clause or
subclause of this Agreement so designated.
tom'
"South Pavilion" has the
meaning ascribed to it in the Statement of
irg-
Background and Purpose.
"Sublease" means any lease, sublease, license or other agreement by
t-:>>
L..K•,. r
which Developer or any person
or other entity claiming under Developer
(including, without limitation, a
subtenant or sublicensee) demises leases
T
:-3
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 listed in Exhibit
C attached hereto to be made 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.
19 -
"UDAG has the meaning ascribed to it in subclause (e) Section 2.1.
"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 A include
but are not
limited
to Faneuil
Hall
in Boston,
Massachusetts, Harborplace
in Baltimore,
Maryland
and South
Street
Seaport in
New York, New York. h
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 Area A-1, a
portion of Area A-2 (excluding the Garage Parcel), portions of Area A-3, Area
ArA-4, Area A-5, and Area B as shown on Exhibit A-1 and more particularly
described in the legal descriptions attached hereto as Exhibits B-1, B-21 B-3
and B-4 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"). Tne 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, Exhibit B-1 to this Lease shall be amended
accordingly.
-20-
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
10 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 -
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 DO) 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 -
(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 -
Ak
(e) Conditions Precedent. Developer shall not be obligated to take
possession of the Leased Property or to perform any other obligations under
this Lease unless and until the following shall have occurred or have been
obtained:
(i) the City Mangy ager 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;
• (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 Manage 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; n
(viii) the City has entered into a Grant Agreement with the U.S.
Department of Housing and Urban Development for an Urban Development
- 24 -
Action Grant ("UDAG") in the amount of at least Six Million One Hundred
Thousand Dollars ($6,100,000), on terms and in a form satisfactory to
Developer;
(ix) The City and Developer shall have entered into a mutually
acceptable agreement with respect to the Miamarina;
(x) The City shall have provided Developer with evidence
satisfactory to Developer that the development of the Project will not
violate Section 380.06 Florida Statutes or Chapter 33A of the Dade County
Code; 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 shall use good faith efforts to satisfy all of the aforesaid
conditions precedent. If Developer does not obtain satisfactory financing
pursuant to subsection (iv) above and shall as a result thereof terminate this
Lease, Developer shall pay to the City the amount of Two Hundred Fifty Thousand
Dollars ($2501000) 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.
(f) Developer Obligations 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.
-25-
The City shall indemnify, hold harmless and defend Developer from and
against any and all claims, actions, suits or demands of any nature whatsoever
with respect to any portion of the Leased Property arising out of any act or
omission of the City, its agents, servants, employees or contractors occurring
prior to delivery of possession thereof to Developer as herein provided.
Section 2.2 Restrictive Covenants. The restrictive covenants con-
tained in paragraphs (a) through (d) of this Section 2.2 are intended and
designed to bind the Developer and the City and their respective successors and
assigns and bind upon and run with the Leased Property and the Park Sitef,(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 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.
hereby demised shall not be used for the following:
The Leased Property
(i) Permanent or temporary housing or sleeping quarters; or
(ii) Coinbox entertainment (pinball, video games, moving pictures
operated by coins); or
- 26 -
(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
3
of applicable governmental authorities).
(b) No Discrimination. No covenant, agreement, lease, conveyance or
t<z', • 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
�j5�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
a. r 9� r �
a occupancy of the Leased Property.
(c) Permitted Uses for Leased Property. Except for the limited use
by Miami MotorSports, Inc. pursuant to (i) a license agreement entered into
between the City and Miami MotorSports, Inc. on June 14, 1982, (ii) an
amendment to such license agreement between the City and Developer on even
date, and (iii) an agreement among Developer, the City and Miami MotorSports,
Inc. on even even date (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
- 27 -
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 f rom 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) The City will not permit any use of the AMiamarina, 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 Say from the Leased Property, including (without limitation) any
such use by vessels using the docks or the Miamarina.
(ii) The City will not, without first obtaining the written
consent of the Developer, (1) construct any fence or barrier between the
Park Site A and the Leased Property, (2) make or permit substantial
alteration in the Park Site nor 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;
- 28 -
r
(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
.k
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.
(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
n 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 fee title to the Leased Property, the Park Site or any part of
either as to the City and as to the Developer, the leasehold estate herein
demised to Developer.
Section 2.3 Easements. The following easements presently exist or
are hereby granted:
(a) Existing Easements. The following easements presently exist:
- 29 -
(i) the easement for a 72 inch underground force main, more
particularly shown and designated as the "County Easement" on Exhibit A-1
hereto;
(ii) the 20 foot storm sewer easement more particularly shown
and designated as the "City Storm Sewer Easement" on Exhibit A-1 hereto;
(iii) such other easements as are described on Exhibit E.
(b) Easements Granted to Developer. The City grants unto Developer,
its successors and assigns the following:
(i) the non-exclusive right and easement (the "Developer Utility
Easement") to install, maintain, repair and replace utility facilities such
as water, gas, electric, and telephone lines and storm and sanitary sewers
underground within portions of the Park Site, and any other property owned
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 (z)
over and across the Park Site to Biscayne Boulevard (as Port Boulevard and
Biscayne Boulevard are now or hereafter constructed), in the location shown
thereforonExhibit 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
- 30 -
i
separating Port Boulevard or Biscayne Boulevard from either the Leased
Property or the Park Site;
i
(iii) the non-exclusive right to use portions of the Park Site in
common with the public, subject to the City's right to restrict areas in
the Park Site for reasonable periods during special events, for the
unobstructed pedestrian access to and from the Leased Property by Developer
and the Subtenants and their respective concessionaires, licensees,
officers, employees, agents, customers and invitees to all of the Park Site
now and hereafter existing including, but not limited to the baywalks,
sidewalks, playgrounds and other open spaces;
• (iv) the non-exclusive right (but subject, nevertheless to
.Developer's first having obtained any permits or licenses required by law
or applicable regulation), to use portions of the Park Site for the
staging of promotional events designed to attract patrons or customers to
the area at whatever is the then current charge for such use;
(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
- 31 -
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:
(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
AV Property, provided Developer shall promptly remove the same, at its
expense, upon the City's or appropriate utility's request in order to
permit the City or utility to perform maintenance services on the utility
lines in the easement area, provided that in the design and construction
of the Developer Improvements, Developer will use its diligent efforts to
cluster underground utility lines and to minimize other construction below
the surface of the easement area;
(2) With respect to the portion of the City Storm Sewer Easement
area which may lie directly beneath the Developer Improvements, the City
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-V---- - - - --- -
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.A
(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 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
- 33 -
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 Aa 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
0 (7) with respect to the Developer Vehicular Access Easement,
• the City may from time to time, erect signs, temporary barriers or other
reasonable traffic controls designed to limit the use of the easement
areas to service and emergency vehicles.
Annexed hereto as Exhibit J is a 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
- 34 -
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
(2) The Minimum Base Rental for each Rental Year, as
follows:
FULL RENTAL YEARS MINIMUM BASE RENTAL
1-2 $ 325,000
�+ 3-6 $ 650,000
7-35 $11000, 000
36-45 As determined below
Notwithstanding the above, if in any given Rental Year, 35% of Net
Income Available for Distribution is less than the Minimum Base Rental, the
difference shall be credited to the Developer in an account known as the
"Cumulative Credit Balance Account" which credit shall accrue interest at
eleven (11%) percent, compounded annually. The maximum amount to be credited
to the Cumulative Credit Balance Account in any Rental Year shall be no
greater than the Minimum Base Rental for that Rental Year. In any subsequent
Rental Year for which a credit balance exists in the Cumulative Credit Balance
- 35 -
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 YearAif the average of the Annual
Basic Rental paid during the preceding three (3) Rental Years shall exceed
$1,000,000, in which event the Minimum Base Rental for the thirty-sixth
through forty-fifth Rental Years shall be the average of the Annual Basic
Rental paid by Developer for the thirty-third, thirty-fourth and thirty-fifth
Rental Years.
(ii) During each Renewal Term, an annual sum equal to the
greater of:
(1) The average of the Annual Basic Rental paid during the
three (3) consecutive Rental Years prior to the end of the Original
Term or the preceding Renewal Term, as the case may be and shall, at
1401\ 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 either Renewal
Term be less than the Minimum Base Rental payable during the final year of the
oxiginal 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.
- 36 -
(iv) The word Rental shall be deemed to include additional
rentals.
(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.
In connection therewith, Developer covenants and agrees that from and after
the -,Opening Date, Developer shall keep the Project open for business with the
public at least two -hundred twenty (220) days a year and at least five (5)
days a week.
(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
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
theref or 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
- 37 -
Ll
referred to as its prime rate ("Default gate") 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
40p, Developer, either:
(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 (351,%1*) 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
- 38 -
C_l
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
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 prcmiptly 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
- 39 -
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
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
- 40 -
($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 bate 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
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
- 41 -
to Developer on the Possession Date, tree and
clear of any rights of others except as set forth
in Exhibit E. On the Possession Date, all
references 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 ($4,000,000.00Yby 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, which monies shall be utilized
by the City to pay the cost of the Tenant Allowance pursuant to a construction
progress schedule to be agreed upon between the City and Developer.
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.
- 42 -
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
dos.,3ession Date. Notwithstanding the provisions of this Section 2.6, Developer
shall have the right to contest the amount or validity, in whole or in part,.
of any Public Charges by appropriate proceedings. The City agrees to consent
to and/or formally join in any such proceedings to the extent it may be allowed
by law, if such consent and/or joinder be required by law for the prosecution
thereof. Developer shall pay all charges .for metered water, sewer service
charges and other fees or -charges. lawfully imposed by any public authority
upon or in connection. with the Leased Property.. The City agrees that it will
not impose any special assessment or other Public Charges (other than ad
valorem real property taxes) against the Leased Property or the Improvements
with respect to the construction, operation, repair and maintenance of any
improvements the City is obligated to construct pursuant to this Lease or any
special assessment or other Public Charges for the purpose of repayment of the
Tenant Allowances to be granted by the City pursuant to the terms hereof or
- 43 -
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 Approval and Consents. Wherever in this Lease the
approvals 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
agr;:ement 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.
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 to Bayfront Park and the
Leased Property as more particularly described in the City's Construction
- 44 -
Plans which are collectively referred to throughout this Lease as "City
Improvements":
A 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
�r dated May 5, 1970 by and between the City and Restaurant Associates Industries,
Inc. ("Restaurant Lease"), which is shown on Exhibit A-1. If at any time
between the date of execution of this Agreement and the Possession Date the
Restaurant Facilities are substantially damaged or destroyed, the City shall,
at Developer's option, which option must be exercised in writing within ninety
(90) days from date of such damage or destruction or -from the Possession Date,
as the case may be, (i) immediately repair and restore the Restaurant
Facilities, "or (ii) immediately assign to Developer all of the City's right,
title and interest in any payment, proceeding or award by any insurance company
or other person on account of the damage or destruction.
- 45 -
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
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 (i) the
commencement of construction of the Developer Improvements or (ii) the termi-
-46-
nation of the agreement dated June 4, 1981 between the City and New World
Marinas, Inc.
ARTICLE III
CONSTRUCTION OF IMPROVEMENTS
Section 3.1 Conformity of Plans. Preliminary Plans and Construc-
tion Plans and all work by Developer with respect to the Leased Property and
the construction of Developer Improvements thereon shall be in conformity with
this Agreement, the Miami Charter and Code, the South Florida Building Code,
and all other applicable state, county and local laws and regulations.
Section 3.2 Preliminary Plans. The City acknowledges that prior
to the execution of this. Lease, Developer has submitted to the City and the
City has approved the concept plans (the "Concept Plans") for the construction
of the Developer Improvements, a list of which'is attached hereto as Exhibit F.
Developer shall submit to the City Manager at the times hereinafter set forth,
two sets of plans (the "Preliminary Plans"). For the purpose of this Lease,. .
"Preliminary Plans" shall consist of site plans and structure elevations and
sufficient detail to show site planning, architectural design and layout,
materials, 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
Manager has approved a Site Drawing depicting all phases of the Development
and has approved the Preliminary Plans for the particular phase for which a
permit or other formal governmental approval is requested.
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The Preliminary Plans for all stages of the Developer Improvements to
be constructed shall be submitted to the City Manager on the date set forth on
Exhibit G. Upon receipt of each set of Preliminary Plans representing a
certain stage of construction, the City Manager shall review the same and
shall promptly (but in any event within fifteen (15) days after such receipt),
give Developer notice of its approval or disapproval setting forth in detail
its reasons for any disapproval. The City Manager's right to disapprove the
Preliminary Plans submitted shall be limited to matters depicted in the
Preliminary Plans for Developer Improvements which do not conform substantially
to the Concept Plans or previously approved Preliminary Plans for other stages
of the Project or are new elements not presented in the Concept Plans, or
matters which are violations of this Lease or of applicable governmental
ordinances, codes, plans, laws or regulations..
If no response -from the City is delivered to Developer within 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,
e 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 sutk'nission,
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
- 48 -
date of this Lease. City and Developer shall in good faith attempt to resolve
any disputes concerning the Preliminary Plans.
Section 3.3 Construction Plans. For the purpose of this Lease,
"Construction Plans" shall consist of final working drawings and specifications
including (without limitation) the following information: (a) definitive
architectural drawings; (b) definitive foundation and structural drawings (the
"Final Substructure Plans"); (c) definitive electrical and mechanical drawings
including (without limitation) plans for all lighting facilities affecting the
exterior appearance of the Developer Improvements; and (d) final specifica-
tions;. but excluding drawings and specifications relating to subtenant.
improvements. Not later than one hundred twenty (.120) days after approval of
Preliminary Plans for a particular stage of construction, Developer .shall
submit to the City Manager two sets of Construction Plans for the same stage.
Upon receipt thereof, the City Manager shall review the -same and shall promptly
(but in any event within fifteen (15) days after such receipt), give Developer
notice of its approval or disapproval, setting forth in detail its reasons for
any disapproval. The City Manager'.s right to disapprove the Construction Plans
submitted shall be.limited to matters depicted in the Construction Plans which
do not conform substantially to the approved Preliminary Plans or previously
approved Construction Plans for other stages or are new elements not.presented
in the approved Preliminary Plans or, are violations of this Lease or of gov-
ernmental ordinances, codes, plans or regulations. If no response from the
City is delivered to Developer within fifteen (15) days after the submission
of such Construction Plans, or any resubmission thereof as hereinafter pro-
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
- 49 -
(60) days after the date Developer received the notice of such disapproval,
resubmit the Construction Plans for that stage to the City Manager, altered to
meet the grounds of disapproval. Any resubmission shall be subject to review
and approval by the City Manager, in accordance with the procedure hereinabove
provided for an original submission, until the same shall be approved by the
City Manager, provided, that in any event Developer shall submit all Construc-
tion Plans for the construction of Developer Improvements which meet all of
the grounds for disapproval of which the City Manager has given notice not
later than six (6) months after approval of all of the Preliminary Plans. The
IV City and
the
Developer shall in
good faith attempt
to resolve any
disputes
regarding
the
Construction Plans.'
No approval by the
City Manager of
any,Con-
struction Plans or Preliminary Plans pursuant to this Article shall relieve.
Developer of any obligation it may have at law to file such Construction Plans
with any department of the City or any other governmental authority having
jurisdiction over the issues or to obtain any building or other permit 'or
approval_ required by law.
Developer acknowledges that any approval given by City Manager
4W 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.
- 50 -
Section 3.4 Facilities to be Constructed.I 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
01 Lease, (including any Renewal Term and any new lease executed pursuant to the
provisions of Sections 6.1 and 6.2) shall maintain and keep or cause to be
maintained and kept in good order, repair and appearance, commensurate with the
quality of maintenance found in the area shown and designated as "Developer
Maintenance Area"' on Exhibit J all of the property and improvements (including,
without limitation, the City Improvements) in the Park Site and those portions
of the Leased Property shown and designated as "City Maintenance Area" on
Exhibit K.'
The Developer, without cost or -expense to the City, at .all times
during the term of this Lease,. (including any Renewal Term and any. new lease
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
access thereto whenever and to the extent necessary to carry out the provisions
:, . , ,, .. .,.,„; ,,max„:- , • � rs �;
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
i 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
to be designed by City. The City shall .:ommence 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
AN
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
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... .....-_e„1::. ,-... .. �.,a-.. �.Y` ir�};'�3i�!7.4"k?'iy�.�h.'�.R4:r-"_'�+1�.wt�zti{��-i!r�iT,�r'"��d�C3t?•A:a,;:•n _�r .. rr, ..:�..t . ...4 . ..... � `l
the Developer Improvements has been completed, Developer shall keep the City
Manager apprised of the progress of Developer with respect to such development
and construction. During such period the work of Developer shall be available
for inspection by a full-time, on -site representative of the City Manager.
The Developer shall provide suitable work space and utilities for the
representative at Developer's cost. Developer, by executing this Agreement,
represents it has visited the site, is familiar with local conditions under
which the construction and operation is to be performed, will perform all test
borings and subsurface engineering generally required at the site under sound
and prudent engineering practices, and will correlate the results of its test
borings and subsurface engineering- and other available studies and its
observations with the' requirements of the construction and operation of the
Project. The Developer shall restore the site to its original condition after
all testing, and shall provide the City with a copy of all results. The City
makes no warranty as to subsoil conditions. Developer shall not be entitled
to any adjustment of Rental or of any applicable time requirements in the
event of any abnormal subsoil conditions unless the subsurface conditions are
so unusual they could not have been reasonably -anticipated.
Section 3.9 Certificate of' Final Completion. Promptly after
completion of the Developer Improvements on the Leased Property in accordance
with the provisions of this Agreement, the City Manager will furnish Developer
with an appropriate instrument so certifying (the "Certificate of Final
Completion"). The Certificate of Final Completion shall be in such form 'as
will enable it to be recorded among the Land Records of Dade County. If the
City Manager shall refuse or fail to provide such certification in accordance
herewith, the City Manager shall within thirty (30) days after written request
- 53 -
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
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
,Pull authority to perform the obligations imposed on .that office envisioned
- 54 -
041
r2l
under this Lease, then the City shall, 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, if any. Developer shall secure any and all permits
and approvals; except for the aforesaid, 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-the event that the City pursues a Binding Letter of Determination
pursuant to Section 38O.06(4)(a), Florida Statutes and/or a Developers
Agreement pursuant to Rule 98-16.18, Florida Administrative Code and/or a_
eyelopment Order pursuant to Section 380.06, Florida Statutes- and/or should
he* City be obligated to pursue a letter of interpretation or other Dade
y Development of County Impact process for any- portion of the Leased
rty, the City shall be financially responsible for filing and processing
necessary documentation submitted in connection therewith and complying
th the conditions contained within any Development Order, or other official
issued as a result of these pursuits. Developer shall have the right
review and approve any such documentation prior to its submission to the
levant governmental agency, - and shall be notified of all meetings with
al staff or officials related to the -processing of any of the
-55-
s
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
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'wi.thin
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.
- 56 -
i3
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)
for art in the public areas of the Leased Property. In addition, Sixty
Thousand and No/100ths Dollars (560,000.00) of the .Tenant Allowance must be
utilized for art in the public areas of the Leased Property pursuant to
Ordinance No.
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.
z
Section 4.2. Character and Operation of Improvements. The parties
recognize and acknowledge that the manner in which the Leased Property and
- 57 -
Improvements are developed, used and operated are matters of critical concern
to the City by reason of ( i) the prominence of the location in 8ayf ront 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 t-he level
of quality of character and operation; at the, time of execution and delivery
of this Lease, to Harborplace in Baltimore.
From time to time Developer will establish such reasonable rules and
regulations governing the -use and operation by Subtenants of their premises as
Developer shall deem necessary or desirable in order to assure the level of
quality and character of operation 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 the
covenants and agreements set forth in this Section 4.2 only so long ' as the
development, use, operation, security and maintenance by the City of the Park
Site shall be of a comparable level of quality and character commensurate with
the quality and character of the Leased Property.
ARTICLE V
ANTI -SPECULATION; ASSIGNMENT
Section 5.1 Definitions. As used herein, the term:
(a) "Transfer" means:
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(i) any total or partial sale, assignment or conveyance (other ;
than by a Leasehold Mortgage or Financing Sublease) or any trust or power,
or any transfer in any other mode or form of or with respect to this Lease
or of the leasehold estate in the Leased Property or any part thereof or
any interest therein, or any contract or agreement to do any of the same;
(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
substantially all of the assets of Developer or of any Owner, other than
• an owner whose shares are publicly traded..
(iv) Any Sublease of over fifty (50) _percent of the Leaseable
Area of the Project to a single Subtenant or Subtenants who are related in
their ownership, except for a Financing Sublease.
(b) "Owner" means:
(i) any person, firm, corporation or other entity which- owns,
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.
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(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 �c
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
- 60 -
t.
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:
(a) Any Transfer by Leasehold. Mortgage to an Institutional Investor
or to an agent, designee or nominee. of an Institutional Investor which is
A
>4 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
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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.
(d) From and after the date that the Project has been in operation
for seven and one-half (7-1/2) years after the AOpening Date, any Transfer to
(i) an Acceptable Operator consented to by the City Manager and City Com-
mission or (ii) a purchaser having a good reputation and financial resources
in the opinion of the City Manager and the City Commission to own the Project
(an "Acceptable Purchaser") that shall have entered into an Acceptable Opera-
tors Agreement with an Acceptable Operator. If Developer shall dispute a
withholding of consent by the City pursuant to this subsection.(d), Developer
may submit such dispute to arbitration pursuant to Section 10.5 hereof. The -
basis for such arbitration shall be the reasonableness of the City Manager and
City Commission's decision as to whether or not such -purchaser or operator met.
the criteria herein set forth to qualify as an Acceptable Purchaser and/or an
Acceptable Operator.
(e) Any Transfer to a joint venture, general or limited partnership,
joint stock association or Massachusetts business trust, a substantial interest
in which is held by Developer and the other interests in which are held by an
Institutional Investor or by such other persons, firms, corporations, or other
entities as to which the City Manager shall have given his approval in his sole
discretion, provided that, within thirty'(30) days after gaining possession of
the Project, the Transferee. shall have entered into an Acceptable Operator's
Agreement as described in Subsection 6.1(c)(10 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.
- 62 -
(g) Any Transfer by an' Owner who is a Black American or a Hispanic
American 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 Commission, 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.
(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 Hispanit-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
i 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
- 63 -
City Manager shall state the reasons for such disapproval in his notice to
Developer withholding his consent. if the City is not required to consent to
a Transfer pursuant to the terms hereof, Developer shall notify the City in
writing of same within thirty (30) days after the date of Transfer.
(b) Developer shall from time to time throughout the term of this
Lease as the City shall reasonably request, furnish the City with a complete
statement, subscribed and sworn to by the President or Vice -President and the
Secretary or Assistant Secretary of the general partner of Developer, setting
forth the full names and -address of holders of partnership interests in -
Developer, or any general partners of Developer or the stock of any general
partner of Developer and the extent of their holdings, and in the event any
other parties have a beneficial interest in such stock,, their full'namesand
addresses and the extent of such interest as determined or indicated by- the
records of Developer, by inquiry which such officers shall make df-all parties
who on the basis of' such records own a one percent (1%) or more ownership
interest in Developer or by such other knowledge or information, as either of
such officers shall have. Notwithstand- ing .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. Cffectuation of Certain Permitted Transfers. No
Transfer of the nature described in subsections (d) through (h) 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
z
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
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conditions and restrictions to which Developer is subject; provided, however$
that any Lender, Leasehold Mortgagee, Lender/ Landlord transferee shall not be
required to assume any personal liability under this Lease with respect to any
matter arising prior or subsequent to the period of such transferee's actual
ownership of the leasehold estate created by this Lease (it being understood,
nevertheless, that the absence of any such liability for such matters shall
not impair, impede or prejudice any other right or remedy available to the
City for default by Developer); and provided further, that the fact that any
such transferee of, or any other successor in interest whatsoever to, the
leasehold estate in the Leased Property or the Improvements, or any part
thereof, shall whatever the reason, not assume such obligations or so agree,
shall not (unless and only to the extent otherwise 'specifically provided in
this Lease or agreed to in writing by the City) relieve or accept such
transferee or successor of or from such . obligations, conditions or
restrictions, or deprive or limit the City of or with respect to any rights,
remedies -or controls with respect to the leasehold estate in the .Leased
Property or the construction'of the construction of the Improvements.
Section. 5.6. Transfers of the City's Interests. The City represents
and agrees for itself, its successors and assigns, that the City has not made
or created and that it will not; during the term of this Lease, make or create
or suffer to be made or created any total or partial sale, assignment,
conveyance, mortgage, trust or power, or other transfer in any mode or form of
or with
respect
to the
City's reversionary
interest in
the
Leased Property
or
any part
thereof
or any
interest therein or
any contract
or
agreement to do
any
of the same, to any purchaser, assignee, mortgagee or trustee unless such
purchaser, assignee, mortgagee or trustee shall have the authority and the
- 65 -
ability, in the Developer's opinion, to assume the obligations of the City
under this Lease and the purchaser, assignee, mortgagee or trustee shall
expressly agree to assume the obligations of the City under this Lease, in a
form satisfactory to Developer and any Leasehold Mortgagee.
Notwithstanding any such transfer and assumption, the City shall not
be released from its obligations pursuant to Sections 2.8 and 3.5, which
obligations are personal to the City and shall remain in effect during the
term of this Lease.
Section 5.7. Subletting. At the City's request, Developer shall
provide to the City a copy of all Subleases for the Project. Developer shall
40
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
I
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 idLntity 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
- 66 -
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
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 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 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-
- 67 -
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.
(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 preparers by a generally -recognized
title insurance company doing business in Miami, Florida.
(q) 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
- 68 -
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 expiraftion 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.
i
(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
- 69 -
i
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 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 LLeased Property enter into an agreement on terms and conditions
reasonably acceptaole 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
- 70 -
'A
Manager to terminate this Lease as the result of the occurrence of any
such Event of Default shall be subject to and conditioned upon the City
Manager having first given Lender written notice of such Event of Default
and Lender having failed to remedy such default or acquire Developer's
leasehold estate created hereby or commence foreclosure or other
appropriate proceedings in the nature thereof as set forth in and within
the time period specified by this subparagraph (iv).
(v) An Event of Default under this Lease which in the nature
thereof cannot be remedied by Lender shall be deemed to be remedied if (a)
within 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 tinder 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 be bound by the provisions of Section
5.8 hereof. Notwithstanding the foregoing, the City agrees that Lender
shall not be obligated to complete construction of the Developer
— 71 —
i
Improvements if Lender shall succeed to Developers estate under this
Lease. Any assignee or successor in interest to a Lender that has taken
` possession of the Leased Property must, however, assume all of Developer's
obligations hereunder (except as set forth in Section 5.8 hereof),
r
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 ALeased.Property pursuant to the terms
~ hereof and at all times thereafter during the term of this Lease or any
Renewal Term,- the Rental obligation to the City shall be limited to -'an
amount equal to thirty-five (35%) percent of Net Income Available for
Distribution. -
(vii) The City Manager shall mail to Lender a duplicate copy by
certified mail of any and all notices which the City may from time to time
give to or serve upon Developer pursuant to the provisions of this Lease;
and no notice by the City Manager to Developer hereunder shall be deemed
- 72 -
f
Improvements if Lender shall succeed to Developers estate under this
Lease. Any assignee or successor in interest to a Lender that has taken
possession of the Leased Property must, however, assume all of Developer's
obligations hereunder (except as set forth in Section 5.8 hereof), I
including, but not limited to, the construction obligation.
s
(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 thereafter during the term of this Lease or any
Renewal Term, the Rental obligation to the City shall be limited to'an
amount equal to thirty-five (35%) percent of Net Income Available for
Distribution. A -
(vii) The City Manager shall mail to Lender a duplicate copy by
certified mail of any and all notices which the City may from time to time
give to or serve upon Developer pursuant to the provisions of this Lease;
and no notice by the City Manager to Developer hereunder shall be deemed
- 72 -
to have been given unless and until a cosy thereof has been mailed to
Lender. ;
(viii) Foreclosure of a Leasehold Mortgage or any sale thereunder,
whether by judicial proceedings or by virtue of any power of sale
contained in the Leasehold Mortgage, or any conveyance of the leasehold
estate created hereby from Developer to Lender by virtue or in lieu of the
foreclosure or other appropriate proceedings in the nature thereof, shall
not require the consent of the City or constitute a breach of any
provision of or a default under this Lease. Upon such foreclosure, sale
or conveyance, the City shall recognize Lender, or any other foreclosure
sale purchaser, as tenant hereunder except tnat aii ooiigations on
i
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
1 estate unless otherwise in this Article VI provided; rop 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 acquiring the
same by foreclosure or by an acceptance of a deed in lieu of foreclosure
or subsequently assigns or transfers its interest under any such new
lease, and in connection with any such assignment or transfer Lender takes
- 73 -
bark a mortgage or deed of trust encumbering such leasehold interest to ;
secure a portion of the purchase price given Leasehold Mortgage as
contemplated under this Section 6.1, Lender shall be entitled to receive
the benefit of this Article VI and any other provisions of this Lease
intended for the benefit of the holder of a Leasehold Mortgage. Any
person or entity to whom this Lease or any such new lease is assigned must
either enter into or assume Lender's obligations under an Acceptable
Operator's Agreement.
(ix) Should the City terminate this Lease by reason of any
j default by Developer hereunder, the City Manager shall give notice thereof
t
• to all Leasehold Mortgagees and the City Manager shall, upon written•
request by Lender to the City Manager received within sixty (60) days
i
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
new lease of the Project shall be made without representation or warranty -
of any kind or nature whatsoever, either express or implied, including
without limitation, any representation or warranty regarding title to. the
f
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
i
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
- 74 -
nature whatsoever, either express or implied; and Lender shall take any . i
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
A 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
40
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 reihstate 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
f
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
- 75 -
a new lease but shall fail to do so or shall fail to take the action
required above, the City shall so notify all other Leasehold Mortgagees
(if any) and shall afford such other Leasehold Mortgagee a period of sixty
(60) days from such notice within which to elect to obtain a new lease in
accordance with the provisions of this Section. Except for any liens
reinstated pursuant to this Section, any new lease entered into pursuant
to this section shall be prior to any mortgage or other lien, charge or
encumbrance on the fee of the Leased Property or the improvements and shall
have the same relative priority in time and in right as this Lease and
shall.have the benefit of all of the right, title, powers and privileges
of Developer hereunder in and to the Leased Property and the Developer
Improvements. At Developer's request, the City will enter into an -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.
- 76 -
(xi) All rights and benefits afforded to a Leasehold Mortgagee
hereunder shall also be afforded to a party providing financing to
Developer pursuant to a Financing Sublease.
Section 6.2. No Waiver of . Developer's Obligations or City's
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 -an otherpayments.of none as
� I'9 Y Y
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.
- 77 -
6
t
(b)
Failure
- Performances of
Other Covenants, Etc.
Failure of
Developer to
perform
any of the other
covenants, conditions and
agreements
which are to be performed by Developer in this Lease, and the continuance of
such failure for a period of sixty (60) days after notice thereof in writing
from the City to Developer ( which notice shall specify the respects in which
the City contends that Developer has failed to perform any such covenants,
conditions and agreements), unless such default was not caused or created by
the Developer and cannot be cured within sixty (60) days and the Developer
within said sixty (60) day period shall have commenced and thereafter shall
have continued diligently to..prosecute all actions- necessary to cure'such
default, .said failure shall constitute an Event -of the Developer's Default.
(c) Bankruptcy,etc.
1. if an order or relief shall be entered upon any petition
filed by or against Tenant, as debtor, seeking relief (or instituting a
case) under Chapters 7, 9, 11 or 13 of the Bankruptcy Code of 1978, 11
U.S.C. (Sec. 10 et-seq.) or any successor thereto; or
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
- 78 -
1
S, 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
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
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.
-s0-
i
Section 7.4. Unavoidable Delay. For the purpose of any of the
provisions of this Agreement, neither the City (including the City Manager)
nor Developer, as the case may be, nor any successor in interest, shall be
considered in breach of or in default in any of its obligations, including but
not limited to the preparation of the Leased Property for development, or the
beginning and completion of construction of the Developer Improvements or City
Improvements, or progress in respect thereto, in the event of unavoidable
delay in the performance of such obligations due toN 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
k
the time or
times for the performance of the covenants, provisions- and.
y r
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
Yyy''Y
S
Property for
development and completion of the City Improvements or of
�CY
Developer with respect to construction -of Developer Improvements, shall be
extended for
the period of unavoidable delay; provided, however, that the
j•ty
•J'
.,.�
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
- 81 -
is earlier. Notwithstanding the foregoing, Developer agrees to use reasonable
and diligent efforts to open the Bayside Specialty Center for business with
the general public by October 31, 1986.
Section 7.5. Obligations, Rights and Remedies Cumulative. The
rights and remedies of the parties to this Agreement, whether provided by law
or by this Agreement, shall be cumulative, and the exercise by either party of
any one or more of such remedies shall not preclude the exercise by it, at the
same or different times, of any other such remedies for the same default or
breach or of any of its remedies for any other default or breach by the other
party. No waiver made by either party with respect to performance, or manner
or time thereof, of any obligation of the other party or any condition to its
own obligation under this Agreement shall be considered a waiver of an rights
9 9 Y 9
of the art making the waiver with respect to the
p y ng 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 an
t: + Y P 9 Y
.fir:•
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.
(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 fee interest of the City to mechanics' liens. If any
such mechanics' liens shall at any time be filed against the Leased Property,
- 82 -
Developer shall promptly take and diligently prosecute appropriate action to
have the same discharged or to contest in good faith the amount or validity
thereof and if unsuccessful in such contest, to have the same discharged.
Upon Developer's failure so to do, the City, in addition to any other right or
remedy that it may have, may take such action as may be reasonably necessary
to protect its interest, and Developer shall pay any amount paid by the City
in connection with such action, and all reasonable legal and other costs and
expenses incurred by the City in connection therewith (including reasonable
counsel fees, court costs and other necessary disbursements). Any such.amounts
A/+ 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
00. 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
- 83 -
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, eveloper 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
s use or occupancy of the Leased Property by such persons. Developer shall
��,��3:•� is
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,
i
in equity or before administrative tribunals, due to the negligence of the
_;a'..•,
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.
- 84 -
3
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 agreedun`t 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.
:•. i The adequacy of..the Insurance coverage may be reviewed periodically
e ...i. ,
by the City Manager at his discretion. Any review by the City Manager shall
u :..,.. .
cr;t' 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
j' -required by this - Agreement, Developer must nevertheless -rebuild. and restore
i such Improvements pursuant to the terms hereof and must pay the entire cost of
a same notwithstanding the fact that such insurance proceeds are inadequate..
x�" (b) Rental Value • Insurance. Rental value insurance, so that
N�. Developer will be insured against loss of rental income from the improvements
occasioned by any- of the 'insured against perils included in the Property
Insurance policy during the period required to rebuild, repair or replace the
property damaged, which policy or policies of insurance shall expressly provide
by endorsement thereon that the interest of the City as lessor under this lease
shall be covered to the extend earned, in an amount equal to the total of
Annual Basic Rental payable during said period of business interruption.
- 85 -
Rental Value Insurance shall commence at such time as Rentals are due and
payable to the City, whether or not the Sayside 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 CityManager shall not constitute an •�:�.,r g 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 d-any work arising out of this Agreement. Such
?S .+
insurance shall of f ord protection to at least a combined
single limit
'for
•._.
bodily injury and property damage liability of $1,000,000 per occurrence.
The
O`'
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.
(d) Liability Insurance. Comprehensive general
liability or
an
' equivalent policy form providing liability . insurance - against -claims for
personal injury or death or property damage, - occurring on or' about the. Leased -
Property, the Improvements, or any elevator, escalator, or hoist thereon.
Such insurance shall afford protection to at least a combined single limit for
bodily. injury and property damage liability of $10,000,000 per occurrence.,.
The adequacy of the liability insurance coverage shall be reviewed every five
years by the City Manager. Any review by the City Manager shall not
constitute an approval or acceptance of the amount of insurance 'coverage.
Such liability and property damage insurance shall also be placed in effect
during the period of permitted access provided in Section 3.8 herein.
It is the City's intent that any liability insurance provided
pursuant to this Section shall be deemed primary insurance coverage in the
-86-
i
f;
1
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
i
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
i
which shall clearly indicate that Developer has obtained insurance in the
type, amount and classification as herein required. Copies of all policies of
' R
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
Developer in which other properties and locations are also covered so long as
the amount of insurance available to pay losses at this location is at least
- 87 -
r
the minimum required by this Section, and it cannot be reduced in any manner
f'
by losses occurring at other properties or locations.
Section 9.3. Named Insureds — Notice to City. of Cancellation. All
v_
policies of insurance described herein shall name Developer and the City as
r
s4 insureds as their respective interests may appear. The policies shall also
Y, name as insured, if required by either party or required pursuant to the terms
of any Leasehold Mortgage or Financing Sublease, any Leasehold Mortgagee as the
interest of any such Leasehold Mortgagee may appear. Notwithstanding any such
inclusion, the parties hereto agree that any losses under such policy shall
;'. be payable, and all insurance proceeds recovered thereunder shall be applied
and disbursed in accordance with the provisions of this Lease. All insurance
'.r.;... policies shall provide that no material change, cancellation or termination
zz-.
shall be effective until at least thirty (30) days after receipt of written
notice thereof has been received by the City. Each policy shall contain. an
endorsement to the effect that no act or omission of the Developer shall affect
_{ the obligation of the insurer -to pay the full amount of any loss sustained.'
Section 9.4. City -May Ptocure Insurance if Developer Fails to 'Do
t,. 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
iyl��r!'f
insurance, and all amounts of money paid therefore by the City shall be
treated as Additional Rental payable b Developer to the City together with
P Y Y oP tY 9
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.
—88—
Section 9.5. Insurance Does Not Waive Developer's Obligations. No ;-
acceptance or approval of any insurance agreement or agreements by the City or
the City Manager shall relieve or release or be construed to relieve or
release Developer from any liability, duty or obligation assumed by, or
imposed upon it by the provisions of this Agreement.
Section 9.6. Loss or Damaae 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
,f, of Rental, or. from the payment of any money . to be treated as Additional Rent
in respect thereto, pursuant to this Agreement,_as the same may become due and
payable, as provided in this Agreement, or from the performance and L
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
Awp� the insurance policies and shall proceed promptly to collect or cause to be
collected, all valid claims which may have arisen against insurers or, others
based upon any such damage or destruction. Developer shall promptly give City
written notice of such damage or destruction.
Section 9.8. Property Insurance Proceeds.
(a) Authorized Payment. Except as otherwise provided in subsection
(c) of this Section 9.8, all sums payable for loss and damage arising out of
the casualties covered by the property insurance policies shall be payable:
(i) Directly to Developer, if the total recovery is $500,000.00
or less which amount shall be adjusted periodically every five (5) years
- 89 -
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 publishing,
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. -If , at the
time such proceeds become payable, there is a Leasehold Mortgage on the
Leased Property, the Leasehold Mortgagee shall serve as the Insurance
Trustee, but if there is no Leasehold Mortgage at that time, or if the
-Leasehold Mortgagee refuses to serve as Insurance Trustee, the Insurance
Trustee shall be such commercial bank or trust company as shall be
designated by Developer and approved by the City Manager, which approval
shall not be unreasonably withheld or delayed.
(b) Disposition of Insurance Proceeds for Reconstruction. All
amounts received upon such policies shall be used, to the extent required, for
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the reconstruction, repair or replacement of the Improvements and the personal
property of Developer contained therein, so that the Improvements or such
personal property shall be restored to a condition comparable to the condition
prior to the loss or damage (hereinafter referred to as "Reconstruction
Work"). From the Insurance proceeds received by the Insurance Trustee, there
shall be disbursed to Developer such amounts as are required for the
Reconstruction Work. Developer shall submit invoices or proof of payment to
the 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 e_
for Reconstruction. In the event Developer, pursuant to any Leasehold
Mortgage or Financing Sublease, shall at any time authorize the Lenders or
Lender Landlords on his behalf. or in his stead to enter upon the Leased
Property, and undertake or pfosecute, the reconstruction. or repair of any
building on the Leased Property damaged -or destroyed by fire, or other
insured -against hazard or peril and to have and receive for Developer or
Leasehold Mortgagees' use for such purpose such insurance proceeds, then in
that case said insurance proceeds shall be equally available to such Leasehold
Mortgagee as to Developer as provided in subsection (b) of this Section 9.8,
and it shall �n 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 9.10) and Section 9.10,
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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
0 completed within a longer period, provided that such period shall be approved
in writing by the City Manager after written request from Developer. 'As used
in the preceding sentence, the term "available net insurance proceeds" means
the sum actually- paid by the insurer or insurers in respect of the claim in
question, less all costs and expenses incurred by Developer'or the Insurance
Trustee in the collection, holding and disbursement of same, including
(without limitation) reasonable attorneys' fees.
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
- 92 -
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
expense, promptly demolish any buildings or other improvements situated on the
r 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*poition 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
oF 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
- 93 -
of the Developer, signed by the appropriate officer or general partner, stating 14
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
of this Lease Developer shall, upon the City's request at Developer's expense,
promptly demolish any building or other remaining improvement and shall clear
and grade the Leased Property. F
Section 9.11. Casualty to Parking Garage. In the event that all or
any portion of the Parking Garage and the Garage Parcel is damaged or destroyed .
by reason of fire or other casualty and the Parking Garage is not restored,
pursuant to the terms of the Parking Garage -Ground tease such that, in the.good
faith opinion of Developer, it shall be economically unfeasible to use and.en-.
>�;•k joy -the Improvements on the Leased Property, then the Developer shall have the
"€4 right to terminate this Lease upon giving the City written. notice of. the exec-
cise 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
o treated as Additional Rental and Public Charges shall be prorated and paid b
Developer as of the date of such termination. In addition to other matters
which Developer shall consider in determining the foregoing economic.
unfeasibility, the Developer shall consider whether comparable, suitable
parking would be available in a close proximity to the Leased Property. If
Developer shall exercise its right to terminate this Lease as above -set -forth,
Developer shall, provided that the City shall actually demolish. the Developer
- 94 -
Improvements, pay to the City an amount equal to fifty percent (SCX) of the
actual cost that the City shall incur in connection with the demolition of the
Developer Improvements.
ARTICLE X
CONDEMATION
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
such taking, the Rental and money to be treated as Additional Rental pursuant
to this Agreement and the Public Charges shall be prorated and paid 'by the
Developer to the date of such taking or conveyance, and this Lease shall
terminate "and become null and void as of the date *of such taking or
conveyance. The award or awards of damages allowed to the City or Developer
shall be paid -as follows:
First: There shall be paid all expenses, if any, in—
cluding reasonable attorneys' fees, incurred by*the City and
Developer in such condemnation suit or conveyance (except that
nothing
contained in
this Article
shall require
payment to the
City of
costs and
expenses it
may incur as
the. condemning
authority);
Second: City and Developer shall be paid portions of the
balance of said award or awards which are allocable to and
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I
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 fn the
manner and acting with the authority provided in this Article:.
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
the power of eminent domain, or shall .be conveyed by the City. and Developer
acting jointly to avoid proceedings of such taking, and Developer shall be of.
the good faith opinion that it is economically feasible to .effect restoration
thereof, then this Lease and all the covenants, conditions and provisions
hereunder shall be and remain in full force and, effect as to all of the Leased
Property not so taken or conveyed (except as provided 'in subsection (c) of
this Section 10.2 and in Section 10.3). Developer shall to the extent
condemnation proceeds are made available to. it pursuant to the terms hereof,
remodel, repair and restore the Improvements so that they will be comparable
to the Improvements prior to the condemnation, taking into consideration the
fact of the condemnation; provided, however, that in so doing, Developer shall
not be required to expend more than the amount of any such award actually
- 96 -
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:.
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
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
Of thereof, then this Lease and all the covenants, conditions and provisions
hereunder shall be and remain in full force and.effect as.to all of the Leased
Property not so taken or conveyed (except as provided in subsection (c) of
this Section 10.2 and in Section 10.3). Developer shall to the extent
condemnation proceeds are made available to, it pursuant to the terms hereof,
remodel, repair and restore the Improvements so that they will be comparable
to the Improvements prior to the condemnation, taking into consideration the
fact of the condemnation; provided, however, that in so doing, Developer shall
not be required to expend more than the amount of any such award actually
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• received by Developer, less all costs and expenses (including reasonable
attorneys' fees) incurred in the collection of same.
(b) The award or awards of damages allowed to City and Developer
shall be paid to and received by the parties as follows:
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
all
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.
Opp� 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
- 97 -
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.
Section 10.4. Taking for Temporary Use or of Leasehold Estate. If,
by the exercise of the power of eminent domain, or under threat thereof, the
whole or any part of the Leased Property or the Improvements shall be taken
for temporary use or the whole or any part of the leasehold estate created by
this Lease shall be taken, all.awards or other payments shall be paid to
Developer alone, except that,
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i
(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, genials 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.
Section 10.5. Arbitration. A panel of 'arbitrators '("Arbitration
Panel") shall be established when required by this Agreement. (i) The
appointments to the panel shall be made in the following manner:
(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.
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0(111) 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
A
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
3 Arbitration 'shall be conducted in accordance with the Real Estate Valuation
Rules of the American Arbitration Association. In determining any matter
before them, the Arbitration Panel shall apply the terms of this Agreement,
and shall not have the power to vary, modify or reform any terms or provi-
sions -of the Agreement in -any respect. The Arbitration Panel shall afford
a hearing to the City and to the Developer and the right to submit evidence
with the privilege of cross-examination on the question at issue. All
arbitration hearings shall be held at a place designated by the -Arbitration
Panel in Dade County, Florida.
(v) A hearing shall be commenced within sixty (60) days
following the selection of the last of the three arbitrators. A court
- 100 -
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.
(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
- 101 -
determination. Each party shall pay the fees and expenses of the member d-
of the Arbitration Panel designated by such party, such party's counsel
and witness fees, and one-half (1/2) of all expenses of the third member
of the Arbitration Panel.
Section 10.6. Parking Garage Taken by Condemnation. In the event
that all or any portion of the Parking Garage and 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
A& 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
close proximity to the Leased Property. If Developer shall, providedthat 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.
A
- 102 -
ARTICLE XI
RIGHTS OF OCCUPANCY AND ACCESS;
MAINTENANCEj-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.
A Section 11.2. Waste. Developer shall not permit, commit or suffer
waste or impairment of the Leased Property, or the Developer Improvements
thereon, or any part thereof.
Section 11.3. 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
A0k Improvements, and of the Leased Property, shall comply with all laws,
ordinances, codes and regulations applicable thereto.
Section 11.4. Ownership of Improvements During Lease. Prior to the
expiration or termination of this Lease, title to the Improvements shall not
vest in the City by reason of its ownership of fee simple title to the Leased
Property, but title to such Improvements shall remain in Developer. If this
Lease shall terminate prior to the expiration of the term hereof and if, at
that time, any Leasehold Mortgagee shall exercise its option to obtain a new
lease for the remainder of the term of this Lease pursuant to Article VI, then
- 103 -
title to the Improvements shall automatically pass to, vest in and belong to
h-
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
AW 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
,Ok- thereon, without process of law, peaceably to the City immediately upon such
expiration or termination.
Section 11.6. City and Developer 'to Join in Certain.Actions. Within
ten (10) days after receipt of written request from Developer, the City shall,
(a) Join Developer when required by law in any and all applications
for permits, licenses or other authorizations required by any governmental or
public authority which has jurisdiction in connection with any work as may be
reasonably necessary or appropriate for the construction of the Improvements
to be constructed by Developer on the Leased Property; and
- 104 -
(b) Join Developer in any grants of, or grant such, easements or t
rights with respect to vehicular access electric, telephone, gas, water, sewer,
steam and such other public utilities and facilities as may be reasonably
necessary or appropriate for the construction, operation or use of the Leased
Property or any Improvements to be erected by Developer thereon. Developer
shall pay all fees and charges for all such applications and grants.
ARTICLE XII
MISCELLANEOUS PROVISIONS
Abe Section 12.1. No Partnership or Joint Venture. It -is mutually
understood and agreed that nothing contained in this Agreement is intended or
Shall. be construed in any manner or under any circumstances whatsoever as
creating or establishing the relationship of co-partners, or creating or
establishing the relationship of a joint venture between the City and
Developer, or as constituting Developer as the agent or representative of the
City for any .purpose or in any manner whatsoever.
Section 12.2.
Recording, Documentary Stamps.
This Agreement, or
-.a
'" memorandum hereof in
form mutually satisfactory
to
-the parties,. shall
be
recorded among the Land Records of Dade County, State of Florida, and either
party may cause any modification or- addition to this Lease or any ancillary
document relevant to this transaction to be so recorded, and the cost of- any
such recordation, cost
of
any
State -of
Florida documentary
stamps
which
legally must be attached
to
any
or all
of
said papers, and the
cost-
of the
applicable Dade County and State transfer tax shall be paid in full by .
Developer.
Section 12.3. Florida and Local Laws Prevail. This Agreement shall
be governed by the laws of the State of Florida. This Agreement is subject to
- 105 -
. < _
and
shall be interpreted
to
effectuate
its
compliance with
the Charter of the wa
City
of Miami, the City
of
Miami Code
and
the Dade County
Charter and Code.
Furthermore, the terms of this Agreement allow reasonable public access to the
water, 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
illegal, invalid, or unenforceable because of present or future laws or any
rule or regulation of any governmental body or entity or becomes unenforceable
because of judicial construction the remaining terms, covenants and conditions
of this Lease, or application*of such term, covenant or condition to persons
or circumstances
other than
those as
to
which
it is
held invalid
or unenforce-
able; shall not
be -affected
thereby
and
each
term,
covenant, or
condition of
this Lease shall be ' valid and be enforced to the fullest extent permitted - by
law. Contemporaneously with the execution of the Agreement, the City Attorney
has delivered an opinion to Developer opining that the execution and delivery
hereof by the City is in compliance with the Charter of the City of Miami, the
City of Miami Code and the Dade County Charter and Code.
Section 12.4. Conflicts of Interest; City Representatives Not
Individually Liable. No member, official, representative, or employee of the
City or the*City Manager shall have any personal interest, direct or indirect,
in.this' Agreement, nor. shall any such member, official, representative or
employee participate in any decision relating to this Agreement which affects
his or her personal interest or the interest of any corporation, partnership
or association in which he or she is, directly or indirectly, interested. No
- 106 -
member, official, representative or employee of the City or the City Manager
shall be personally liable to Developer or any successor in interest in the
event of any default or breach by the City or the City Manager or for any
amount which may become due to Developer or successor or on any obligations
under the terms of the Agreement.
Section 12.5. Notice. A notice of communication under this
Agreement by either the City or the City Manager, on the one hand, to
Developer, or, on the other, by Developer to the City or the City Manager
shall be sufficiently given or delivered if dispatched by registered or
-1 certified mail, postage prepaid, return receipt requested; and
(a) Developer. - In the case of a notice or communication to
Developer, if addressed as follows:
General Counsel _
Bayside Center.Limited Partnership
c/o The Rou a Company
10275 Little Patuxent Parkway
Columbia, Maryland 21044
(b) Developer's Records. Developer's original duplicate books and
records in auditable form'as required in Section 2.5(d) shall be kept and be
available to the City during normal business hours at its principal place of
business in the City of Miami.
(c) City Manager. In. the case of .a notice or communication to the
City or the. City Manager, if addressed as follows:
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
jp 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.
- 108 -
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 Developers 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.
j Section 12.10.-Nondisturbance and Attornment. The City covenants and
agrees with Developer for the benefit. of any and all Subtenants occupyingany
part of the Leased Property or the.Improvements.from time to time, that in the
event of a termination of this Lease, the possession of each such Subtenant
shall not be disturbed so long as such Subtenant shall not be in default under
its Sublease; provided such Subtenant shall attorn to the City. This
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
- 109 -
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.
is 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 it * Developer
shall not fund the minority development foundation in accordance with the
provisions dealing with same set forth in Exhibit H, .which -payments shall
�+ commence to accrue on the Rent. Commencement Date.
Section 12.12. Successors and Assigns. Except to the extent limited
elsewhere in this Lease, 'all of the covenants, conditions and obligations
contained in this Lease shall be binding upon and inure to the benefit of the
respective successors and assigns of the City and the Developer.
IN WITNESS WHEREOF, ROUSE MIAMI, INC., the sole general partner of
go-
BAYSIDE CENTER LIMITED PARTNERSHIP, has caused this Lease Agreement to be
- 110 -
signed in its name by Mathias J. DeVito, its President and its corporate seal
to be hereunto affixed and duly attested by John W. Steele, III, its Assistant
Secretary, and the CITY COMMISSION OF MIAMI has caused this Lease Agreement to
be signed in its name by Howard V. Gary, the CITY MANAGER, and duly attested
to by Ralph G. Ongie, the CITY CLERK, on the day and year first hereinabove
written.
ATTEST: BAYSIDE "NTER LIMITED PARTNERSHIP, A
MARYLAND LIMITED PARTNERSHIP
By: ROUSE.IIAMII INC., A FLORIDA
CORPORATION, GENERAL PARTNER
By:
..W. Steele Mathias J. DeVito, President
Ass stanSecretary
[Corporate Seal]
ATTEST: THE CITY OF MIAMI, A MUNICIPAL CORPORA-
TION OF THE STATE OF FLORIDA
By:
Ralph Ongie, CityClerk HowardGary, My Manager
.APPROVED AS TO FORW AND
CORRECTNESS:
L
CITY ATTORNEY
1544F/452A
STATE OF FLORIDA
COUNTY OF DADE
I, an officer authorized to take acknowledgments, HEREBY CERTIFY that
on this 5th day of December, 1984, personally appeared before me MATHIAS J.
DEVITO and JOHN W. STEELE, III, known to me to be the President and Assistant
Secretary, respectively, 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 Kblic, State of Florida at Large
My Commission Expires:
STATE OF FLORIDA-)
COUNTY OF DADE )
I, an officer authorized to take acknowledgments, HEREBY CERTIFY that
on this 5th day of December, 1984, personally appeared before me HOWARD V.
GARY and RALPH G: ONOIE,-respect ively, known tome 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 seai in said County and State the clay
and year last aforesaid.
1544F/452A
Notary Public, State of Florida at Large
My Commission Expires:
- 112 -
Jam+
i'`"t::e14.ski{ 4:z'.+'15.•r'ta. e.',3.,.. ��'d,*'g',.:�,�. _ , „S' •?t :'�a+- rr' ..
EXHIBIT
Days
0
30
90
120
135
225
240
250
305
730
790
850
1544F/452A-113
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
departments approval of Final Plans
and Issuance of Building Permits
Corps of Engineers landfill
complete, Demolition of Parking
Garage complete.and Possession -Date:
Rouse commences construction
Improvements _ constructed with
Tenant Allowance substantially
complete
Bayfront. Park improvements
substantially complete
Bayside Specialty Center open to
public and Rent Commencement Date
RMS
0
30
90
120
135
225
240
250
305
730
-790
850
1544F/452A-113
EXHI8IT 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
departments approval of Final Plans
.and Issuance of Building Permits
Corps of Engineers landfill .
complete, Demolition of Parking
Garage complete.and Possession -Date_
Rouse commences construction
Improvements _ constructed with
Tenant Allowance substantially
complete
Bayfront. - Park improvements
substantially complete
Bayside Specialty Center open to
• public and Rent Commencement Date
W
Draft - 12/01/84
r
LEASE AGREEMENT
between
BAYSIDE CENTER LIMITED PARTNERSHIP
and
CITY OF MIAMI
A December 5, 1984
BAYSIDE SPECIALTY CENTER
PARKING GARAGE
TABLE OF CONTENTS
PAGE
ARTICLE
I - EXHIBITS AND DEFINITIONS
3
Section
1.1.
Exhibits
3
Section
1.2.
Defined Terms.
3
ARTICLE
II - GENERAL TERMS OF LEASE OF LEASED PROPERTY
15
Section
2.1.
Lease of Leased Property to Developer. .
. . . . .
15
a. Premises . . . . . . . . . . . . . .
. . . . .
16
b. Original Term . . . . . . . . . . . .
. . . . .
16
c. Renewal Term . . . . . . . . . . . .
. . . . .
16
d. Possession of Leased Property. . . .
. . . . .
17
e. Conditions Precedent . . . . . . . .
. . . . .
18
f. Developer Obligations Prior to Possession. . .
19
Section
2.2.
Restrictive Covenants . . . . . . . . . .
. . . . .
19
a. Use Prohibitions of the Leased Property. . . .
20 .
b. No Discrimination . . . . . . . . . .
. . . . .
20
c. Permitted Uses for Leased Property
21
d. Use Prohibitions of the Park Site. .
. . . . .
21
.
e. Enforceability . . . . . . . . . . .
. . . . .
22
Section
2.3.
Easements . . . . . . . . . . . . . . . .
. . . . .
23
a. Existing Easements . . . . . . . . .
. . . . .
23
b. Easement Granted to Developer. . . .
. . . . .
23
c. Limitations on Easements Rights. . .
. . .
24
d. Duration of Easements . . . . . . . .
. . . . .
27
e. Confirmatory Instruments . . . . . .
. . . . .
27
Section
2.4.
Title of Leased Property . . . . . . . .
. . . . .
27
Section
2.5.
Rental . . . . . . . . . . . . . . . . .
. . . . .
27
27
a. Rentals Payable . . . . . . . . . . .
. . . . .
b. Continuous Operation . . . . . . . .
. . . . .
28
c. Refinancing proceeds . . . . . . . .
. . . . .
29
MOM
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.
Approval 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
AND CONSTRUCTION
36
-DESIGN
-
Section
3.1:
Improvements to be Designed by Developer
. . . . .
36
I
TABLE OF CONTENTS
PAGE
ARTICLE
III -_DESIGN
AND CONSTRUCTION (con't.)
Section
3.2.
Preliminary Plan Submission Dates. . . . . .
. . .
39
Section
3.3.
Construction Plans . . . . . . . . . . . . .
. . .
40
Section
3.4.
Facilities to be Constructed . . . . . . . .
. . .
43
Section
3.5.
Maintenance of Park Site and Leased Property
. . .
43
Section
3.6.
Access . . . . . . . . . . . . . . . . . . .
. . .
43
Section
3.7.
Construction Period.
. .
44
Section
3.8.
Progress of Construction . . . . . . . . . .
. . .
44
Section
3.9.
Certificate of Final Completion. . . . . . .
. .
45
Section
3.10.
Connection to Utilities . . . . . . . . . . .
. .
46
Section
3.11.
Permits and Approvals . . . . . . . . . . . .
. . .
46
Section
IV�Section
3.12.
Compliance with Law. . . . . . . . . . . . .
. .
47
48
3.13.
Extension of Time Requirements . . . . . . .
. .
Section
3.14.
Alterations and Renovations. . . . . . . . .
. . .
48
Section
3.15.
Art in Public Places . . . . . . . . . . . .
. . .
48
ARTICLE
IV -
LAND USES
49
Section
Section
4.1.
4.2.
Land Uses . . . . . . . . . . . . . . . . . .
Character and Operation of Improvements. . .
. . .
. . .
49
49
ARTICLE
V - ANTI -SPECULATION; ASSIGNMENT
49
Section
5.1.
Definitions.
49
Section
S.Z.
Purposes of Restctions on Transfer
ri
51
Section
5.3.
Transfers . . . . . . . . . . . . . . . . . .
. . .
52
Section
5.4.
Notice of Transfer; Information as to Shareholders
54
dP Section
5.5.
Effectuation of Certain Permitted Transfers.
. . .
55
Section
5.6.
Transfers of the City's Interests. . . . . .
. . .
56
Section
5.7.
Minority Participation in Ownership. . . . .
. . .
57
ARTICLE
VI -
MORTGAGEE FINANCING; RIGHTS OF MORTGAGEE
57
Section
6.1.
Leasehold MortgageA. . . . . . . . . . .
. . .
57
Section
6.2.
No Waiver of Developer's Obligations
or City's Rights . . . ... . . . . . . . .
. . .
67
TABLE OF CONTENTS
ARTICLE VII - REMEDIES
PAGE
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
OTHER CLAIMS, INDEMNIFICATION
72
Section 8.1.
Mechanic's Liens and Payments of Obligations .
. .
72
a. Developer to Discharge Mechanics' Liens. .
.
72
b. Payment of Materialmen and Suppliers . . .
. .
73
Section 8.2.
Indemnity . . . . . . . . . . . . . .
73
ARTICLE IX -
INSURANCE
74
Section 9.1.
Insurance Coverage . . . . . . . . . . . . . .
. .
74
a. Property Insurance . . . . . . . . . . . .
. .
74
•
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
TABLE OF CONTENTS
PAGE
ARTICLE
IX -
INSURANCE (con't.)
Section
9.8.
Property Insurance Proceeds.
79
a. Authorized Payment . . 6
79
b. Disposition of Insurance Proceeds
for Reconstruction
80
c. Lenders and Lender/Landlords May Have Benefit
of Insurance Fund for Reconstruction . . . .
81
' Section
9.9.
Covenant for Commencement and Completion
of Reconstruction . . . . . . . . . . . . . . . .
81
Section
9.10.
Developer's Rights In the Event of Unusual
Major Casualty . . . . . . . . . . . . . . . . .
82
Section
9.11.
Casualty to Bayside Specialty Center . . . . . . .
84
ARTICLE
X - CONDEMNATION -
84
Section
10.1.
Entire Leased Property Taken by Condemnation .
64 '
Section
10.2.
Partial Taking of Leased Property by Condemnation.
86
Section
10.3.
Adjustment of Rent Upon Partial Taking . . . . . .
87
Section
10.4.
Taking for Temporary Use or of Leasehold Estate. .
88
Section
10.5.
Arbitration . . . . . . . . . . . . . . . . . . . .
89
Section
10.6.
Bayside Specialty Center Taken by
Condemnation . . . . . . . . . . . . . . . . . .
91
ARTICLE
XI -
RIGHTS OF OCCUPANCY AND ACCESS; MAINTENANCE;
OWNERSHIP OF IMPROVEMENTS
92
Section
11.1.
Quiet Enjoyment . . . . . . . . . . . . . . . . . .
92
Section
11.2.
Waste. . . . . . . . . . . . . . . . . . . .
92
/rr, Section
11.3.
. . .
Maintenance and Operation of Improvements.
92
Section
11.4.
Ownership of Improvements During Lease . . . . . .
93
Section
11.5.
Surrender of Leased Property . . . . . . . . . . .
93
Section
11.6.
City and Developer to Join in Certain Actions.
94
ARTICLE
XII -
MISCELLANEOUS PROVISIONS
94
Section
12.1.
No Partnership or Joint Venture. . . . . . . . . .
94
Section
12.2.
Recording, Documentary Stamps. . . . . . . . . . .
94
Section
12.3.
Florida and Local Laws Prevail . . . . . . . . . .
95
Section
12.4.
Conflicts of Interest; City Representatives
Not Individually Liable . . . . . . . . . . . . .
96
Section
12.5.
Notice ... . . . . . . . . . . . . . . . . . . . .
96
a. Developer . . . . . . . . . . . . . . . . . . .
96
b. Developer's Records . . . . . . . . . . . . . .
96
•
c. City Manager . . . . . . . . . . . . . . . . .
97
/►s
/" �
TABLE OF CONTENTS
PAGE
ARTICLE XII - MISCELLANEOUS PROVISIONS (con't.
Section
12.6.
Estoppel Certificates. . . . . . . . . . . . . . .
97
Section
12.7.
Provisions Not Merged with Deed. . . . . . . . . .
98
Section
12.8.
Titles of Articles and Sections. . . . . . . . . .
98
Section
12.9.
Counterparts . . . . . . . . . . . . . . . . . . .
98
Section
12.10.
Non Discrimination and Equal Opportunity . . . . .
98
Section
12.11.
Successors and Assigns . . . . . . . . . . . . . .
99
EXHIBITS
A-1 - Site Plan of Leased Property
A-2 - Site Plan of Bayfront Park
B - Legal Description of Garage Parcel
C - Legal Description of Area B
D - Construction Schedule
E - 0R of GUarant; of The Rouse Company
F - List of Permitted Encumbrances
G - Survey showing Easements and Utilties
H - List of Approved Concept Plans.
604F/22A
- v-
LEASE AGREEMENT
THIS LEASE AGREEMENT, made this 5th day of December, 1984, by and
between BAYSIDE CENTER LIMITED PARTNERSHIP, a Maryland limited partnership
i
(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,
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 Site Plans attached hereto as Exhibit A-1 and A-2. The
City desires to lease to Developer that portion of Bayfront Park A more
particularly shown and designated as "Garage Parcel" on Exhibit A-1 hereto Ato
enable Developer to construct and operate a 1200 car parking garage on the
/;-., Garage Parcel (the "Parking Garage").
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
i
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.
I
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 1.2, to which reference is hereby made.
- 2 -
e'1
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 - Site Plan for Leased Property
Exhibit A-2 - Site Plan for Bayfront,Park
• Exhibit B - Legal Description of Garage Parcel
Exhibit CC - 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 -
"Acceptable Operators Agreement" has the meaning ascribed to it in
subclause UV) 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.L
"Additional Rental" means any and all payments required of Developer
to the City by the terms of this Lease other than Rental.
"this Agreement" or this Lease", means this Lease Agreement, as. the
same may be modified or amended from time to time.
"Annual Basic Rental" has the meaning ascribed to it in 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
- 4 -
Accounting Principles and Generally Accepted Auditing Standards as promulgated
by the American Institute of Certified Public Accountants.
"Auditor" means Peat, Marwick, Mitchell k Co. or such other nationally
recognized firm of certified public accountants as may be used from time to
i time by the Developer for the purpose of certifying the annual reports of its
financial condition required by law. Such firm of accountants must be a
member of the so-called "Big Eight" group of Accounting Firms.
"Bayfront Park" has the meaning ascribed to it in the Statement of
Background and Purpose.
"Bayside Specialty Center" has the ,meaning ascribed to it in the
Statement of Background and Purpose.
"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 reasonableand 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.
- 5 -
"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.
"City Storm Sewer Easement" has the meaning ascribed to it in Section -
2.3(a) .
i "Completion Date" means that date when the City Manager shall issue ____
r
the'Certificate of Final Completion.
"Construction Plans" has the meaning ascribed to it in Section 3.3.
I1 "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 became 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.
As
- 6 -
"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 Costs);
presentation costs and expenses; surveys and geotechnic tests; testing and
inspections; and garage consulting costs;
(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;
(5) Interest and other financing costs incurred with respect to
the issuance and sale by the City of -industrial development bonds pursuant
to the Ch. 159, Florida Statutes, including all required reserve accounts
and funds; interest, commitment fees, points and other financing costs
incurred inAarm'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;
i
(8) Utility relocation costs and expenses and tap -in fees or
other fees for connection to utility systems and utility services during
Owl construction,
(9) All reasonable and prudent costs and expenses incurred in
connection with the negotiations and execution of this Agreement;
(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;
-e-
(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");
I
(lb) 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
extent recouped under Section 2.5A(3)) less n(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 ( i) of Section 2.3(b) .
"Developer Vehicular Access Easement" has the meaning ascribed to it
in subclause (ii) of Section 2.3(b).
"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 -
"Farr 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 Structural 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(e) .
"Improvements" shall mean all existing and future structures at the
Leased Property, including, but not limited to, the Parking Garage and Area B
Surface Lot.
or**, "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.
114ender/Landlord" means a lender, and any successor, assignee,
transferee or designee of such lender, to which, in connection with the
- 10 -
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 profes-
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
n 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
fo'41 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 (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,
- ll-
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.
I "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,
Aofts. and M 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
principals.
"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 principals 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 -
expenses, and (2) annual Rental. In no event shall depreciation constitute a
portion of Operating Expenses.
"Operatim 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 (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.
"Par„ rk Site" means the area comprising the Bayf rant Park but excluding
the Leased Property and the Retail Parcel, all as shown on Exhibit A-2.
"Parking Garage" 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.
• "Refinancing" means any financing, by way of a Leasehold Mortgage or
by way of a Sale -Leaseback Transaction of Developer's estate in the Leased
Property and Improvements, which results in Refinancing Proceeds being
available to Developer.
"Refinancing 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 October 31, 1986, which is the date
described as "Rent Commencement Date" on Exhibit D 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 -
"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
Stetement 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.
"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.
"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 -
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 more particularly
described in the legal. description attached hereto.as Exhibit B and Area B
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").
W 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
a
following the Possession Date. Within thirty (30) days after the Possession
Date, the City Manager and Developer, upon request of either party, shall
40 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
f rom 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 -
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 -
}
(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".
(e) Conditions Precedent. Developer shall not be obligated to take
possession of the Leased Property or to perform any other obligations under
this Lease unless and until the following shall have occurred or have been
obtained:
(i) the City Manager has approved all of the 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-
0 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 -
(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; A
(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 theAParking Garage and
• Area B Surface Lot will not violate Section 380.06, Florida Statutes or
Chapter 33A of the Dade County Code.
(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
— 19 —
(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
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
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
- 20 -
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).
(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
e
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
0 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;
- 21 -
1
(iii) The City will not sell the Park Site except to a panty 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
(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.
- 22 -
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.
j. (b) Easements Granted to'Developer. The City grants unto Developer,
its successors and assigns the following:
(i) the non-exclusive right and easement (the "Developer Utility
Easement") to install, maintain, repair and replace utility facilities
such as water, gas, electric, and telephone lines and storm and sanitary
sewers underground within portions of the Park Site, and any other property
owned 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
4 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
Parcel to Biscayne Boulevard (as Port Boulevard and Biscayne Boulevard are
now and hereafter constructed), in the locations shown therefore on Exhibit
A-1 or such other locations as may be approved by the City Manager from
-23-
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;
(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 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
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.
I
(cl 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:
- 24 -
(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 Improvements, Developer will use its diligent efforts to cluster
underground utility lines and to minimize other construction below the
surface of the easement area;
(2) With respect to the portion of the City Storm Sewer Easement
area which may lie directly beneath the 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.
l (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
—25—
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;
(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 sixty (60) days 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
- 26 -
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
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 and 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
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
A 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. Developer covenants and agrees to pay the City
annually as rental ("Rental") for the Leased Property, the following:
— 27 —
(i) During the first Rental Year 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").
(ii) During each Rental Year thereafter during the Original Term
and Each Renewal Term the following:
(1) Annual Basic Rental,
(2) Annual Additional Rental,Aand
(3) Annual Percentage Rental.
(b) Continuous Operation. Developer covenants and agrees, subject
to the Grand Prix Agreement, to cause the Parking Garage and Area 8 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
(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 8 Surface Lot
open for business with the general public at least three -hundred sixty (360)
days a year. Developer agrees that, at all times during the Original
-28-
Term for any Renewal Term, Developer shall not operate the Parking Garage or
the Area B 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; pro-
vided, 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
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:
- 29 -
(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 -
"IN
(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 -
1
c
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 time to time in a
notice given pursuant to the provisions of Section 12.5. Any late payment
shall automatically accrue interest at a rate equal to two (2) percent above
that rate charged by the Citibank, N.A., of New York to its best commercial
customers, generally referred to as its prime rate ("Default Rate") from the
date that payment was due. Any overpayment of 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 8 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-
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
i 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 cam-
¢"=
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,
y 4 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
:a specifically that *,such officer has examined the report, that such officer's
=' Lu
examination included such tests of the books and records as such officer
_r considered necessary under the circumstances, and that such report presents
WT` 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,
- 32 -
r in the event the Citys audit was in lieu of a quarterly report by Developer
or if the City audits the quarterly report at its own initiative and demon-
strates a discrepancy of more than three percent (3X).
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. 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
r
performance of those obligations on behalf of Developer pursuant to the parking
garage management agreement, and (ii) if the City of Miami Department of Of
Street Parking is in default of its obligations under the parking garage
L
management agreement and such failure results in a default under this Lease,
L:
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.
f"N 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
- 33 --
thereon in the same manner and to the same extent as if the same, together with .f
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
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 Approval and Consents. Wherever in this Lease the
approvals 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-
i:'>,="x
Section 2.8
Security` and
Police Protection.
Developer shall
have
1
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 -
2
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
r written appoval.
ARTICLE III
A DESIGN AND CONSTRUCTION.
Section 3.1 A 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 -
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 -
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
a 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
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-
;y
struction of the Parking Garage and Area 8 Surface Lot not later than
t
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
s - 44 -
I
4
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 Certificateof 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
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
- 45 -
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, if any. Developer shall secure any and all permits
and approvals, except for the aforesaid, 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 the event that the City pursues a Binding Letter of Determination
pursuant to Section 380.06(4)(a), Florida Statutes and/or a Developers
- 46 -
Agreement pursuant to Rule 98-16.18, Florida Administrative Code and/or a
Development Order pursuant to Section 380.06, Florida Statutes and/or should
the City be obligated to 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 and complying
with 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
it 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.
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.
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
- 47 -
I
on that office envisioned under this Lease, then the City shall, upon request
of the Developer, designate such other officer or department as may be
appropriate to perform the City Managers obligations.
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,
however,. that no renovation or alteration which affects the exterior
4W 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 he unreasonably withheld or delayed. Developer must secure and pay
for any and all permits and approvals required to perform any of the
contemplated alterations or renovations.
Section 3.15 Art in Public Places. The Developer shall utilize 1/2
of 1 percent of all Developer construction funds ("hard -cost" line items only)
for art in the public areas on or near the Leased Property.
- 48 -
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:
(a) "Transfer" means:
•(i) any total or partial sale, assignment or conveyance (other
than by a Leasehold Mortgage or Financing Sublease) or any trust or power,
- 49 - �-
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.
i' (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
i
(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
- 50 -
(ii) whose voting stock and other form of ownership interest
described in clause W 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
i
Developer or a substantial part thereof, or any other act or transaction
i
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
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.
- 51 -
(ii) whose voting stock and other form of ownership interest
described in clause U) is listed for trading purposes on a securities
exchange subject to the regulatory jurisdiction of the Securities do
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
aayf ront 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.
- 51 -
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 Transfer shall be permitted
hereunder:
(a) Any Transfer by Leasehold Mortgage to an Institutional Investor
onto 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 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.
- 52 -
(d) Any Transfer to a purchaser having a good reputation and finan-
cial 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 Operators Agreement. if Developer shall dispute a withholding of
consent by the City pursuant to this subsection (d), Developer may submit such
dispute to arbitration pursuant to the terms hereof. The basis for such arbi-
tration shall be the reasonableness of the City Manager and City Commission's
decision whether or not such purchaser met the criteria herein set forth to
qualify 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,
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 a
Leasehold Mortgagee or Lender/Landlord 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.
(f ) Any Transfer by an Owner who is a Black American or a Hispanic
American 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.
gAny 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 for
t
h
__ -53-
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 on purposes, provided the
General Partner of the Developer remains the managing general partner of the
Developer after the syndication.
(j) 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.
• 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 g• 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
1 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
F
® 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
s
thirty (30) days after the date of Transfer.
- 54 -
(b) Developer shall f rom time to time throughout the term of this
Lease as the City shall reasonably request, furnish the City with a complete
statement, subscribed and sworn to by the President or Vice -President and the
Secretary or Assistant Secretary of the general partner of Developer, setting
forth the full names and address of holders of partnership interests in
Developer, or any general partners of Developer or the stock of any general
partner of Developer and the extent of their holdings, and in the event any
other parties have a beneficial interest in such stock, their full names and
addresses and the extent of such interest as determined or indicated by the
records of Developer, by inquiry which such officers shall make of all parties
who on the basis of such records own one percent OX) or more of the ownership
interest of 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) through Q) of Section 5.4
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 record-
able 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 -
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 --
Notwithstanding any such transfer and assumption, the City shall not
be released from its obligations pursuant to Sections 2.8 and 3.5, which
obligations are personal to the City and shall remain in effect during the
term of this Lease.
Section 5.7. Minority____ Participation in Ownership. Developer agrees
that no less than twenty Apercent ( 0%) 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
- 57 -
and profits from the Leased Property and Improvements to secure reoayment of a
loan or loans (and associated obligations) made to Developer by an Institu-
tional Investor (as defined below) for the sole purpose of securing the
financing ,af 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.
(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
shall have no duty or obligation to determine independently the relative
priorities ' of any Leasehold Mortgages, but shall be entitled to rely
- 58 -
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.
(iii) Subject to the provisions of subparagraph (iv) immediately
below, Lender shall have the right, but not the obligation, at any time
- 59 -
prior to termination of this Lease and without payment of any penalty, to
pay all of the rents due hereunder, to provide any insurance, to pay any
taxes and make any other payments, to make any repairs and improvements,
to continue to construct and complete the Developer Improvements, and do
any other act or thing required of Developer hereunder, and to do any act
or thing which may be necessary and proper to be done in the performance
and observance of the covenants, conditions and agreements hereof to
prevent the termination of this Lease. All payments so made and all
things so done and performed by Lender shall be as effective to prevent a
termination of this Lease as the same would have been if made, done and
performed by Developer instead of by Lender.
(iv) Should any Event of Default under this Lease occur, Lender
shall have 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
01 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 Leased Property and Improvements (hereinafter
-------------
-60-
prior to termination of this Lease and without payment of any penalty, to
pay all of the rents due hereunder, to provide any insurance, to pay any
taxes and make any other payments, to make any repairs and improvements,
to continue to construct and complete the Developer Improvements, and do
any other act or thing required of Developer hereunder, and to do any act
or thing which may be necessary and proper to be done in the performance
and observance of the covenants, conditions and agreements hereof to
prevent the termination of this Lease. All payments so made and all
things so done and performed by Lender shall be as effective to prevent a
termination of this Lease as the same would have been if made, done and
performed by Developer instead of by Lender.
(iv) Should any Event of Default under this Lease occur, Lender
shall have 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
01 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 Leased Property and Improvements (hereinafter
--------------------
- 60 -
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 Developer's leasehold estate created hereby or commence
foreclosure or other appro- priate 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 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 -
lion of the Leased Property and Improvements, Lender shall have entered
- 61 -
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 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 thetLeased 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 -
and no notice by the City Manager to Developer herreunder shall be deemed
to have been given unless and until a copy thereof has been mailed to
Lender.
(viii) Foreclosure of a Leasehold Mortgage or any sale thereunder,
whether by judicial proceedings or by virtue of any power of sale
contained in the Leasehold Mortgage, or any conveyance of the leasehold
estate created hereby from Developer to Lender by virtue or in lieu of the
foreclosure or other appropriate proceedings. in the nature thereof, shall
not require the consent of the City or constitute a breach of any
provision of or a default under this Lease. Upon such foreclosure, sale
or conveyance, the City shall recognize Lender, or any other foreclosure
sale purchaser, as tenant hereunder except that all obligations on
Developer herein contained shall be binding on the Lender only from and
after the date that it shall take title to the Developer's leasehold
estate unless otherwise in this Article VI provided; provided, 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 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 -
lease$ and in connection with any such assignment or transfer Lender takes
back a mortgage or deed of trust encumbering such leasehold inteiest to
secure a portion of the purchase price given Leasehold Mortgage as
contemplated under this Section 6.1, Lender shall be entitled to receive
the benefit of this Article VI and any other provisions of this Lease
intended for the benefit of the holder of a Leasehold Mortgage. Any
person or entity to whom this Lease or any such new lease is assigned must _
either enter into or assume Lender's obligations under an Acceptable
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
j
at -ter 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)
as are contained herein, provided, however, that the City's execution and
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 -
nature whatsoever, either express or implied; and Lender shall take any
Improvements
"as --is" in their
then
current
condition
(except as
to
any
actions taken
or improvements
made
by the
City during
such` time
as
the
Leased Property were not the subject of a Lease). Upon execution and
delivery of such new lease, Lender at its sole cost and expense, shall be
responsible for taking such action as shall be necessary to cancel and
discharge this Lease and to remove Developer named herein and any other
occupant (other than as allowed by the City) from the Leased Property and
Improvements. The City's obligation to enter into such new lease of the
Leased Property and Improvements within the Lender shall be conditioned
upon Lender having remedied and cured all monetary defaults hereunder, and
i
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 Mort- gagee, the City shall only be required to deliver the
new lease to the Leasehold Mortgagee who is, among those Leasehold
Mortgagees requesting a new ?ease, 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) pa in full the sums secured b
Y Y
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 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
- 65 -
{
so or shall fail to take the action required above, the City shall so
notify all other Leasehold Mortgagees (if any) and shall afford such other
Leasehold Mortgagee a period of sixty (60) days from such notice within
which to elect to obtain a new lease in accordance with the provisions of
this Section. Except for any liens reinstated pursuant to this Section,
the new lease 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 Improvements.
• At Developer's request, the City will enter into an agreement with. any
Leasehold Mortgagee granting to the Leasehold Mortgagee the rights set
forth in this Article. If such new lease is entered into pursuant hereto,
the Lender shall be entitled to offset from the previous rentals due the
City under this Lease, the net operating profit, if any, made by the City
during the period that the City shall have operated the Improvements.
(x) City and Developer shall cooperate in including in this
01 Lease by suitable amendment from tiwe to time any provision which may be
requested by any proposed Lender, or may otherwise be reasonably
necessary, to implement the provisions of this Article VI; provided,
however, that any' such amendment shall not in any way affect the term
hereby demised nor affect adversely in any material respect any rights of
the City under this Lease.
(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.
— 66 —
Section 6.2. No waiver of Developer'p Obligations bar 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
i 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 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 -
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.
(c) Bankruptcy, etc.
1. if an order or relief shall be entered upon any petition
• filed by or against Developer, as debtor, seeking relief (or instituting a
case) under Chapters 7, 92 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 bofl y 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
r --
term of this Lease or any renewals or extensions thereof; or
- 68 -
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.
(c) Bankruptcy, etc._
1. if an order or relief shall be entered upon any petition
• filed by or against Developer, as debtor, seeking relief (or instituting a
case) under Chapters 7, 9, 11 or 13 of the Bankruptcy Code of 1978, 11
U.S.C. (Sec. 10 et seq.) or any successor thereto; or
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 4Leased Property during the
r
term of this Lease or any renewals or extensions thereof; or
- 68 -
r
7. if Developer shall assign this Lease or sublet any portion
of theALeasedProperty, 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 -
X
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
4
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
k;.
obligations hereunder by giving notice of such election to the City,
r
whereupon this Lease shall terminate as of the date of such notice;
'1
(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
r` officers, agents or representative) provided, however, that in no event
zK i 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;
(iii) the right to maintain any and all actions at law or suits
in equity or other proper proceedings to obtain damages resulting from
OP
such default.
Section 7.4. Unavoidable Delay. For the purpose of any of the
s
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 -
...................r- .. ..-��M.r +,w+�.�. - ...-wr..n•. -+r+1w"'?yf M4Mn4+qiu..
a
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.
i
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 Bayside Specialty Center to be opened for business with
t
the general public by October 31, 1986.
' Section 7.5. Obligations, Rights and Remedies Cumulative. The
rights and remedies of the parties to this Agreement, whether provided by law
or by this Agreement, shall be cumulative, and the exercise by either party of
any one or more of such remedies shall not preclude the exercise by it, at the
same or different times, of any other such remedies for the same default or
breach or of any of its remedies for any other default or breach by the other
party. No waiver made by either party with respect to performance, or manner
or time thereof, of any obligation of the other party or any condition to its
-71-
own obligation under this Agreement shall be considered a waiver of any rights
of the party making the waiver with respect to the particular obligations of
the other party or condition to its own obligation beyond those expressly
waived and to the extent thereof, or a waiver in any respect in regard to any
other rights of the party making the waiver or in regard to any obligation of
the other party.
ARTICLE VIII
PROTECTION AGAINST MECHANICS'
LIENS AND OTHER CLAIMS, INDEMNIFICATION
f Section 8.1. Mechanics' 'Liens and Payments of Obligations.
' (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 fee interest of the City to mechanics' liens. If any
such mechanics' liens shall at any time be filed against the Leased Property,
Developer shall promptly take and diligently prosecute appropriate action to
have the same discharged or to contest in good faith the amount or validity
thereof and if unsuccessful in such contest, to have the same discharged.
Upon Developer's failure so to do, the City, in addition to any other right or
remedy that it may have, may take such action as may .be reasonably necessary
to protect its interest, and Developer shall pay any amount paid by the City
in connection with such action, and all. reasonable legal 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
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demand foe 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
5
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
t dispute.
Section 8.2. Indemnity Notwithstanding any policy or policies of
insurance required of Developer, Developer shall indemnify and save harmless
q
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
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1±
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
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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
W" 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.
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(d) Liability Insurance. Comprehensive general liability [including
contractual liability] or an equivalent policy form providing liability
insurance against claims for personal injury or death or property damage,
occurring on or about the Leased Property, the Improvements, or any elevator,
escalator, or hoist thereon. Such insurance shall afford protection to at
least a combined single limit for bodily injury and property damage liability
of $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
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.
(e) 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 and
DOSP as additional insureds.
(g) Theft Coverage covering employee fidelity, inside or outside
loss and burglary with a limit of not less than $100,000 per occurrence.
440.
(h) Worker's- Compensation as required by Florida Statutes, Chapter
(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 an blanket excess coverage
y g policy with respect to
design defects in the Parking Garage which may be carried by The Rouse Company.
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i
(k) Worker's Compensation. Worker's Compensation and Employer'a
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.
(1) 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
Developer in which other properties and locations are also covered so long as
the amount of insurance available to pay losses at this location is at least
the minimum required by this Section. and it cannot be reduced in any manner
by losses occurring at other properties or locations.
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t
(k) 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.
(1) 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
all
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
!ref,
. the date of expiration of any policy, together with proof satisfactory to the
City that all premiums have been paid.
Section 9.2. Responsible Companies — Blanket Insurance Permitted.
All insurance provided for in this Article IX shall be effected under valid
and enforceable policies issued by insurers of recognized responsibility,
which are licensed to do business in the State of Florida. All such companies
must be rated at least "A" as to management, and at least "Class X" as to
financial strength in the latest edition of Best's Insurance Guide, published
by Alfred M. Best Co., Inc., 75 Fulton Street, New York, NY. The insurance
required by this Article may be part of another policy or policies of the
Developer in which other properties and locations are also covered so long as
the amount of insurance available to pay losses at this location is at least
the minimum required by this Section, and it cannot be reduced in any manner
by losses occurring at other properties or locations.
— 77 —
-
�5^' lxr:�Xt::a•' .w4:
(k) 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.
(1) 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 Chat 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,
04 which are licensed to do business in the State of Florida. All such companies
must be rated at least "A" as to management, and at least "Class X" as to
financial strength in the latest edition of Best's Insurance Guide, published
by Alfred M. Best Co., Inc., 75 Fulton Street, New York, NY. The insurance
required by this Article may be part of another policy or policies of the
Developer in which other properties and locations are also covered so long as
the amount of insurance available to pay losses at this location is at least
the minimum required by this Section, and it cannot be reduced in any manner
by losses occurring at other properties or locations.
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f
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
,AFN shall be effective until at least thirty (30) days after receipt of written
notice thereof has been received by the City. Each policy shall contain an
endorsement to the effect that no act or omission of the Developer shall affect
the obligation of the insurer to pay the full amount of any loss sustained.
Section 9.4. City May Procure Insurance if Developer Fails to Do
So. In the event Developer at any time refuses, neglects or fails to secure
and maintain in full force and effect any or all of the insurance required
pursuant to this Agreement, the City, at its option, may procure or renew such
insurance, and all amounts of money paid therefore by the City shall be
treated as Additional Rental payable by Developer to the City together with
interest thereon at the 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
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I PW
the City Manager shall relieve or release or be construed to relieve or q
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 Qperate 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
01 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
-"-.= shed or installed in the premises) shall have been damaged, or destroyed,
Developer shall promptly make proof of loss in accordance with the terms of
the insurance policies and shall proceed promptly to collect or cause to be
collected, all valid claims which may have arisen against insurers or others
based upon any such damage or destruction. Developer shall promptly give City
written notice of such damage or destruction.
Section 9.8. Property Insurance Proceeds.
(a) Authorized Payment. Except as otherwise provided in subsection
(c) of this Section 9.8, all sums payable for loss and damage arising out of
the casualties covered by the property insurance policies shall be payable:
(i) Directly to Developer for purposes of rebuilding, replacing
and repair 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
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(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
t
event the CPI has changed or is no longer publishing, 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 000,000.00, 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
York"). From the Insurance proceeds received by the Insurance Trustee, there
shall be disbursed to Developer such amounts as are required for the
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Deconstruction 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
OF-1 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
-.f 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-
p� struetion. 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)
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;:irwt�;.�:.-:;
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 -
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
Qeveloper'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
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of this Lease Developer shall, at Aeveloperls expense but tit 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 f ire 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
W, 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
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 (Soy) of the City s^costs incurred in connection
=f with the demolition of the Parking Garage.
:ate
9
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
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�`i"('v��aty
r
such taking, the Rental and money to be treated as Additional Rental pursuant
to this Agreement and the Public Charges shall be prorated and paid by the
Developer to the date of such taking or conveyance, and this Lease shall
terminate and become null and void as of the date of such taking or
conveyance. The award or awards of damages allowed to the City or Developer
shall be paid as follows:
First: There shall be paid all expenses, if any, in-
cluding reasonable attorneys' fees, incurred by the City and
Developer in such condemnation suit or conveyance (except that
nothing contained in this Article shall require payment to the
City of costs and expenses it may incur as the condemning
authority);
Second: City and Developer shall be paid portions of the
} balance of said award or awards which are allocable to and
represented by the value of their respective interest in the
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.
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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
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.
(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,
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
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
�1 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
n 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 -
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.
Section 10.4. Taking for *Temporary Use or —of Leasehold Estate. If,
by the exercise of the power of eminent domain, or under threat thereof , the
whole or any part of the Leased Property or the Improvements shall be taken
for temporary use or the whole or any part of the leasehold estate created by
this Lease 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
I the cost of restoration,
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 Rental by the Developer shall continue as
if no condemnation had taken place. Rentals payable shall be th Annual
nnual
Basic Rental, Annual Additional Rental and Annual Pernentage Rental.
- 88 -
Rentals payable shall, for the purposes of this 'Seotiom 10.4._ be the
Average Rentals aid 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.
Section 10.5. Arbitration. A panel of arbitrators ("Arbitration
Panel") shall be established when required by this Agreement. (i) The
appointments to the panel shall be made in the following manner:
. (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.
- 89 -
(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
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
- 90 -
(45) days following the commencement of the heating. 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 Lease shall be final,
binding and conclusive on the City and Developer and enforceable in any
court of competent jurisdiction. Together with the determination, the
Arbitration Panel shall provide a written explanation of the basis for the
determination. Each party shall pay the fees and expenses of the member
-`: of the Arbitration Panel designated by such party, such party's counsel
and witness fees, and one-half (1/2) of all expenses of the third member
,N
of the Arbitration Panel.
Section 10.6. Bayside Specialty Center Taken By Condemnation.
In the event .that all or any portion of the 3ayside Specialty Center
or the Retail Parcel is taken by a power of eminent domain or shall be conveyed
to avoid such proceedings such that, in the good faith opinion of Developer,
it shall be economically unfeasible to use and enjoy the Improvements on the
Leased Propgrty, then the Developer shall have the right, provided Developer
pays Ato the City the amount then outstanding under any bonds used to finance
the construction of the Parking Garage and Area B Surface Lot, to terminate
- 91 -
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 IWROYEbENTS
Section 11.1. Quiet Enjoyment. The City represents and warrants
that Developer, upon paying the Rental pursuant to this Agreement and
observirig 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 f urnistiings 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—
.. fah
lri^
�p
.. .• .i. -..ram'-.a..? {7''9�f' � .:i^•i""-�, w"Y>^=,1'~i.�< (GY. you
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
i
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
Fra,,, ta`n
t° remainder of the term of this Lease pursuant to Article VI, then title to the
°a 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
,:ems Developer covenant that to confirm the automatic vesting of title as provided
in this paragraph, each will execute and deliver such further assurances and
4.
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
_g_:,
expiration or termination.
93
_ ::i, �'.';--'C..t. _'�f.. �.t'*,'5� ^�,.r:'� „ - �"4 ,' - _ �rt!_.r•• -- c'.L� �'S � at•��:
iota, .�`.-,.IL'.A: �';.ti, Y. 1x •�.� r��• ''�4�'+i' td
Section 11.6. City and Developer to Join in Certain Actions. within
ten (10) days after receipt of written request from Developer, the City shall,
(a) Join Developer when required by law in any and all applications
for permits, licenses or other authorizations required by any governmental or
public authority which has jurisdiction in connection with any work as may be
reasonably necessary or appropriate for the construction of the Improvements
to be constructed by Developer on the Leased Property; and
(b) Join Developer in any grants of, or grant such, access easements
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
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.
q Section 12.3. Florida and Local Laws Prevail. This Agreement shall
be taken and deemed to be governed b the laws of the State of Florida. This
9 Y
Agreement is subject to and shall be interpreted to effectuate its compliance
y� with the Charter of the City of Miami, the City of Miami Code and the Dade
County. Charter and Code. Furthermore, the terms of this Agreement allow
reasonable public access to the water, reasonable public use of such property,
and . comply with other charter waterfront setbacks and view corridor require-
°4 ments. Any conflicts between this Agreement and the aforementioned Codes and
-u,
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 circum-
stances shall, to any extent, be illegal, invalid, or unenforceable because of
,,sue yc
4v present or future laws or any rule or regulation of any governmental body or
..{� ,•,-.fit
entity or becomes unenforceable because of judicial construction the remaining
4 terms covenants and conditions of this Lease or the application of such
r;�;;�s > > PP
term, covenant or condition to persons or circumstances other than those as to
which it is held invalid or unenforceable,- shall not be affected thereby and
each term, covenant, or condition of this Lease shall be valid and be enforced
to the fullest extent permitted by law. Contemporaneously with the execution
of the Agreement, the City Attorney has delivered an opinion to Developer
opining that the execution and delivery hereof by the City is in compliance
with the Charter of the City of Miami, the City of Miami Code and the Dade
County Charter and Code.
- 95 -
.5'w4i*" �..,-ik"^�:+•�.£�{` C.�
Section 12.4. Conflicts of Interest; City Representatives Not
Individually Liable. No member, official, representative, or employee of the
City or the City Manager shall have any personal interest, direct or indirect,
in this Agreement, nor shall any such member, official, representative or
employee participate in any decision relating to this Agreement which affects
his or her personal interest or the interest of any corporation, partnership
or association in which he or she is, directly or indirectly, interested. No
member, official, representative or employee of the City or the City Manager
shall be personally liable to Developer or any successor in interest in the
event of any default or breach by the City or the City Manager or for any
amount which may become due to Developer or successor or on any obligations
under the terms of the Agreement.
s Section 12.5. Notice. A notice of communication under this
r'.. Agreement by either the City or the City Manager, on the one hand, to
Developer, or, on the other, by Developer to the City or the City Manager
-' shall be sufficiently given or delivered if dispatched by registered or
G-
p
a;rr- certified mail, postage prepaid, return receipt requested; and
.w (a) Developer. In the case of a notice or communication to
Developer, if addressed as follows.
= General Counsel
+'4.r
w+k: Bayside Center_Limited Partnership
c/o The Rouse Company
.: =3 10275 Little Patuxent Parkway
Columbia Maryland 21044
(b) Developer's Records. Developer's original duplicate books and
records in auditable form as required in Section 2.5(d) shall be kept and be
available to the City during normal business hours at its principal place of
business in the City of Miami.
- 96 -
(c)
City Manager.
In the case
of a notice or communication to the
City or the
City Manager, if
addressed as
follows:
Howard V. Gary, 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 tine 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 - _
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 f rom 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
w:w
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
t; 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,
ry 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
r 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 12.10. Non-discrimination and Equal Opportunity. ,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 in Exhibit H to the Retail Area Ground Lease
which payments shall
commence to accrue on the Rent Commencement Date set forth in such Lease.
Section 12.11. Successors and Assigns. Except to the extent limited
elsewhere in this Lease, all of the covenants, conditions and obligations
contained in this Lease shall be binding upon and inure to the benefit of the
respective successors and assigns of the City and the Developer.
IN WITNESS WHEREOF, ROUSE-MIAMI, INC., the sole general partner of
BAYSIDE CENTER LIMITED PARTNERSHIP, has caused this Lease Agreement to be
signed in its name by Mathias J. DeVito, its President, duly attested to by
John W. Steele, III, its Assistant Secretary and its corporate seal to be
r
hereunto affixed, and the CITY COMMISSION OF MIAMI
has caused this Lease Agreement to be signed in its name by Howard V. Gary, the
1-11
qb City Manager, and duly attested to by Ralph 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. Ongie, ity Clerk
APPROVED AS TO FORM AND
CORRECTNESS:
LUCIA ALLEN DOUGHERTY
CITY ATTORNEY
602F/22A
BAYSIDE CENTER LIMITED PARTNERSHIP
By: ROUSE-MIAMI, INC., general partner
By:
Mathias J. DeVito, President
THE CITY OF MIAMI, A MUNICIPAL CORPORA-
TION OF THE STATE OF FLORIDA
By:
'Howard V. Gary, City Manager
- 99 -
STATE OF FLORIDA )
COUNTY OF DADE )
I, an officer authorized to take acknowledgments, HEREBY CERTIFY that
on this 5th day of December, 1984, personally appeared before me MATHIAS J.
DEVITO and JOHN W. STEELE, III, known to me to be the President and Assistant
Secretary, respectively, 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 aforesaid 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 Fublic, State of Florida at Large
My Commission Expires:
STATE OF FLORIDA )
COUNTY OF DADE )
•I, an officer authorized to take acknowledgments, HEREBY CERTIFY that
on this 5th day of December, 1984, personally appeared before me HOWARD V.
GARY and RALPH G. ONGIE, 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.
602F / 22A
Notary Public, State of Florida at Large
My Commission Expires:
- 100 -
1
STATE OF FLORIDA )
COUNTY OF DADE )
I, an officer authorized to take acknowledgments, HEREBY CERTIFY that
on this 5th day of December, 1984, personally appeared before me MATHIAS O.
DEVITO and JOHN W. STEELE, III, known to me to be the President and Assistant
Secretary, respectively, 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 aforesaid 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 Fublic, State of Florida at Large
My Commission Expires:
'b STATE OF FLORIDA )
COUNTY OF DADE )
•I, an officer authorized to take acknowledgments, HEREBY CERTIFY that
on this 5th day of December, 1984, personally appeared before me HOWARD V.
GARY and RALPH G. ONGIE, 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.
602F/22A
Notary Public, State of Florida at Large
My Commission Expires:
- 100-
�+�r s .-'"ti : 1Y.', 'M'p.*`A'v ...Z, , i ��-�fi•.'" - 4 a .:Y. a: •.:i:� w
.PI
0
30
90
120
135
' 225
240
250
305
730
790
850
602F/22A-101
EXH181T 0
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
complete
Demolition 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
�� ..
.�
f
� ,,... r ....
PARKING GARAGE MANAGEMENT AGREEMENT
THIS AGREEMENT, made this 5th day of December, 1984 between SAYSIDE
CENTER LIMITED PARTNERSHIP, a Maryland Limited Partnership (hereinafter
referred to as "Developer") and DEPARTMENT OF OFF-STREET PARKING OF THE CITY
OF MIAMI, (hereinafter referred to as "DOSP").
WITNESSETH:
----------
WHEREAS, the Developer and the City of Miami (hereinafter referred to
as "City") have entered into a lease agreement (hereinafter referred to as
• "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
maintain the Parking Garage and the Area B Surface Lot and to retain an
Acceptable Operator (as defined in the Ground Lease) to operate, maintain and
manaoe the Parking Garage and the Area B Surface Lot ,(hereinafter collectively
referred to as the "Parking Facilities");
WHEREAS DOSP,�is an Acceptable Operator
r
WHEREAS the Developer, in fulfilling its contractual obligations
under the Ground LeaseL desires to retain DOSP to operate, manage and maintain
the Parkin 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 then operation, management and maintenance of the
Parkin Facilities.
NOW, THEREFORE, 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
MANAGEhENT AND OPERATION ^
1.01 DOSP to Manage, Operate and Maintain. Developer and DOSP agree
that upon completion of construction of the Parking Facilities, DOSP shall for
and on behalf of Developer, manage, operate, maintain, direct and supervise
the use of the Parking Facilities for a period of fifty-eight (58) months
S commencing one month prior to the Completion Date (as ^defined in the Ground
Lease). DOSP shall have the right, at any time it deems necessary but
_gursuant to an approved Budget (hereinafter defined), to make non -material,
non-structural alterations or changes to either the Parking Garage or the Area
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 same are implemented. DOSP shall not make any material or structural
changes to either the Parking Garage or the Area B Surface Lot without the
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
reasonably approved by the City pursuant, to the Ground Lease (such fees and
rates hereinafter referred to as "Parking Rates"). DOSP shall submit
suggested Parking Rates for the Parking kFacilities to the Developer
simultaneously with the submission of the Budget Awhich Parking Rates shall be
at least sufficient to cover debt service and Operating Expenses (hereinafter
defined) and which Parking Rates shall be comparable to the fees and rates^for
- 2 -
the use of similar facilities in downtown Miami. DOSP may, from time to time,
suggest revised Parking Rates to Developer. No free parking shall be
permitted to any party at the Parking Zacilities 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 ash public facilities. and
shall not subject more than five (5%) percent of the parking spaces located in
either -the Parking Garage orhthe Area B Surface Lot toAmonthlyparking use;
provided, however, that if (i) 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 mo��parking spaces may be increased to the
amount 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 thly parking by the
general public by an amount equal to the difference between the actual vacancy
i
factor during week day peak business hours and five (5%) percent, but not to
exceed the number of mo�nthgl parking spaces approved by bond counsel. In no
event, may more than twenty-five (25%) percent of the parking spaces located
in the Parking Facilities be subjected to mom parking use.n As used
herein, the term "monthly parking" shall mean prepaid parking for a term of no
longer than one calendar month, available to the general Dublir_. on a —fizst-
come, first --served basis.
-3-
1.03
EMloy�ees_. DOSP
shall employ
all
on -site
personnel
required
to
fulfill its
responsibilities
hereunder and
no
officer,
agent or
employee
of
DOSP shall be deemed an employee of Developer for any reason whatsoever. All
employees of DOSP located at the Parking aFacilities shall be paid within
x ranges established in DOSP's yearly budget approved by the City. All
z, prospective employees of DOSP hired to perform services under this Agreement,
A
. including the Facility Manager (hereinafter defined), shall be examined by a
d=i licensed polygraph examiner to determine the accuracy of their employment
+ application and integrity and shall be periodically, as needed, re-examined by
5••y wr
the polygraph expert to determine honesty in the receipt and handling of cash,
in the payment of expenses and in the preparation of required reports. . The
costs of such examinations shall constitute arn, operating expense. All
employees of DOSP shall be properly uniformed so as to present a neat, clean
^' z` and professional appearance at all times. All hourly employees of DOSP shall
R punch in and out on a recording type time clock to be installed at the Parking
Garage. .DOSP shall provide a facility manager (hereinbefare and hereinafter
referred to as the "Facility Manager") , who shall be the full-time, on -site
to 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
amount of no less than $10,000 for each employee and a bond in the amount of
not less than $100,000 for employees responsible for handling daily Gross
Revenues (hereinafter defined). Developer shall be named as co -obligee under
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).
'.�}'i'y'rr„�.-t"E'a.';
r"��_
... .. ._ __ _ _ ., "'H"Z^`r e•�e'z'� �•li mil.' �x��� ,.J`�''i: �.r ..' ��.r. ,.`U��
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
A 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
4. doors and windows, stairwells, elevators, electronic surveillance system, the
toll booths, signs and graphics, the striping and restriping of the Parking
A 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 AFacilities
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-
(C) DOSP shall operate the Parking Fec%l.ities as 4 public parking
Facilities open for business with the general public on a first come, first
r
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.
(0) 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 requested by Developer, DOSP shall, at Developer's expense, provide
,;':=<_• necessary equipment, trained personnel and vehicles for battery assistance,
tire changing and distress services for vehicles parked at the Parking
,Facilities,, DOSP may charge, in addition to the Parking Rates, reasonable
fees, approved in writing by Developer in advance for towing of vehicles on or
off the Parking,, Facilities for mechanical purposes, and such fees shall be
i
included in Gross Revenues.^ All authorized charges for services shall be
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
related transactions made and for services rendered by DOSP in the operation
of the Parking Facilities regardless of when or where the services are
- 6 -
rendered, whether on a cash or preauthorized credit basis, however, any sales
taxes imposed by law directly paid by DOSPAto a taxing authority, and any
discounts and allowances as provided by procedures proposed by DOSP and
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
�....r deposit vault designated by Developer. DOV 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
;+ and operating expense_. All procedures hereunder shall be subject to revisions
—
:�'A
based upon changes in the Charter or Code of the City of Miami. Gross
Revenues shall not be security for any debts of DOSP, but are the property of
Developer and are to be held in trust for Developer.
DOSP shall submit reports to Developer in such form as mutually
agreeable. Such reports shall include, but not be limited to, the following:
(1) weekly activity and Gross Revenue summaries, to be
reconciled to daily reports utilized by DOSP.
(2) Monthly activity and Gross Revenue summaries and
certifications, to be reconciled to Aily and weekly
reports.
,(3) DOSP shall within sixty (60) days of the end of Developer's
fiscal year (January 1 to December 31) obtain an annual
examination made in accordance with generally accepted
auditing standards and a management letter prepared by an
—7-
-If.r� a?�'�tl lh �a� .•T _�, r•�r�-..`��<'�G�y�•-- :F; ii.'..'� - r.'}^.'�<<
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, prepAed in
conformance with the American Institute of Certified Public
Accountants requirements for "Special Reports". The cost
of such reports shall be included aseperating Expenses.
(4) 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.
(5) Items 1-4 are to be signed by the preparer, and, n�oif
prep red by , certified as true and complete by the
rector of DOSP.
If DOSP shall fail to deliver to Developer or the,C ty 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 (31ml), (in
accordance with generally accepted accounting principals, consistently
applied) the occurence of such discrepancy shall be an Event of OOSP's Default n
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
-8-
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
generally accepted accounting principles, consistently applied and the
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
- ; ....
11_iP
.,.j. reports daily revenue reports and the like shall be kept at all times within
,r
'h Dade County. These records shall be maintained by DOSP for a period of, and
at least two (2) years following the close of the fiscal year or such longer
period as may be required under the Ground Lease.
If requested by Developer, DOSP shall make available at DOSP's
to Administrative offices upon five (5) days written notice from Developer any
original documents and records pertaining to the operation of the Parking
,Facilities not required specifically by the terms of this Agreement.
Annually, on 'a date to be mutually agreed to by DOSP and Developer,
DOSP shall submit to Developer an annual budget (hereinbefore and hereinafter
referred to as "Budget"), on a form(s) mutually agreeable, listing all antici-
pated 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-
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
generally accepted accounting principles, consistently applied and the
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, daily revenue reports, and the like, shall be kept at all times within
Oade County. These records shall be maintained by DOSP for a period of, and
*' at least two (2) years following the close of the fiscal year or such longer
period as may be required under the Ground Lease.
�. If requested by Developer, DOSP shall make available at DOSPI s
Ln v.v
Administrative offices upon five (5) days written notice from Developer any
original documents and records pertaining to the operation of the Parking
A Facilities not required specifically by the terms of this Agreement.
Annually, on a date to be mutually agreed to by DOSP and Developer,
DOSP shall submit to Developer an annual budget (hereinbefore and hereinafter
referred to as "Budget") , on a form(s) mutually agreeable, listing all antici-
pated 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 -
Developer shall review the Budget and have the right to approve all or
i
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 Budget
decided upon by the Arbitrator shall be binding and conclusive provided,
however, that in no event may Developer be bound to any Budget that reveals
that estimated Operating Expenses, debt service and other -ex ensl items will_
be Oreater than anticipated Gross Revenues. The ParkingZacilities shall be
operated on the basis of the then existing Budget pending resolution of
#}}; 40 Arbitration.
f_All reports, expense invoices required by this Agreement shall be
submitted in writing to the address of Developer set forth in Section 7.05
hereof.
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
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
(without duplication), but not be limited to: all items set forth in Section
1.05 hereof plus salary and wages, fringe benefits including Social Security,
group insurance, retirement costs, etc., including overtime, vacation, sick
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
things, the. proportion that the number of spaces in the Parking AFacilities
bear to the aggregate number of spaces in the entire City parking system (not
to exceed (%) percent), all utility costs including but not limited to
- 10 -
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
= supply costs, insurance including liability, worker's compensation and others,
repair and replacement costs including equipment and others, all computer
operations costs allocable to the Parking Facilities, f signs, uniforms si ns capital
A
costs, damages, legal fees and interest directly related to the Parking
;;,.;•', Facilities involving claims of third parties unless caused by the gross
;•.,} negligence or wilful misconduct of DOSP, auditing costs, and losses of
equipment from theft (hereinbefore and hereinafter collectively referred to as
yT;"Operating Expenses").
1.09 Manaaement Fees and Operations and Maintenance Account, DOSP
.z
` 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
A1/2%) percent of Gross Revenues or Seventy —Five Thousand Dollars of $(75,000)
(hereinafter referred to as the "Management Fee") payable to DOSP monthly
00 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,
DOSP shall submit to Developer an invoice equal to three (3) months estimated
AilN' Operating Expenses plus Management Fees with respect to the operation and
maintenance of the Parkin Facilities.
Developer shall within ten (10) days
.. thereafter pay such amount to DOSP. DOSP shall deposit such amount in an
4.�
operations and maintenance account (the "Operations and Maintenance Account")
tyz}•�j
in DOSP's depositary bank. DOSP shall thereafter pay to itself all Operating
` Expenses and Management Fees from the proceeds ofthe Operations and
Maintenance Account. On a monthly basis, DOSP shall submit to Developer an
—11—
�'>,�.;"r�'r?.i �. - -.. _ .- ... .,:� ��-• --:ems::+
invoice (hereinafter referred to as the "Monthly Invoice") for all Operating
Expensesnincurred by DOSP and Management Fees earned by DOSP in the operation
of the Parking Facilities for the previous month. n 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,
Developer has the right to use such means as may be appropriate in
the* circumstances to verify amounts claimed on Monthly Invoices. If any item
of expense is disputed or contested by Developer, Developer shall submit to
DOSP a statement, in writing, setting forth the items being disputed and the
specific reasons therefore. Developer shall not withhold payment of, the
Monthly Invoice for disputed items of expense but must pay same and both
parties shall then, in good faith, diligently pursue clarification and
resolution of any disputed items within thirty (30) days of receipt of written
notice sent by Developer.
.Should Developer and DOSP be unable to resolve any dispute arising
from the provisions of thisASection 1.09, the matter shall be submitted to
Arbitration pursuant to Section 5.02 hereof.
If DOSP shall advise Developer of any item of expense or cost for
which there is insufficient funds in the Operating and Maintenance Account but
which is either approved by Developer or is set forth in an approved Budget,
Developer shall promptly cause such item to be paid in full, it being the
intent hereof that DOSP not be required to advance any of its own funds to pay
same and that there shall at all times be maintained in the Operating and
-12-
.:a..
T
Maintemamee 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 8
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 $5,000,000 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 $10,000,000.�
D Theft Coverage covering employee fidelity, inside or outside
loss and burglary with a limit of not less than $100,000 per occurrence.
* 440.
(E) Worker's Compensation as required by Florida Statutes, Chapter
(F) Flood Insurance in an amount satisfactory to Developer, if
obtainable.
(G) Business*InterruptionInsurance covering loss of Gross Revenues
for a period of at least two (2) years.
(H) Insurance on the Parking A 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 —
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 $
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 erudent
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
.YK�ht'e;�`.. •
s
}k 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.
-14-
DOSP shall furnish certificates evidencing renewal or replacement of
required insurance coverages, sixty (60) days prior to expiration or cancella-
tion.
The amounts of coverage required to be obtained by DOSP hereunder
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
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.
• 1.11 Non -Discrimination.
Neither Developer nor DOSP shall discrimi-
nate 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.
J.
DOSP, for itself and its successors in interest, as a part of the
Fy, consideration hereof, and Developer, for itself and its successors in
y 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
national origin shall be denied the benefits of the Parking„ Facilities, or be
subjected to discrimination in the use of the Parking F� acilities, (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
�..
benefits of the Parking Facilities, or be otherwise subjected to
discrimination.
- 15 -
n
1.12 Miami Grand Prix. DOSP shall abide by the Orand Prix Agreement
as defined 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.A
ARTICLE II
REMEDIES
2.01 Events of Default - Developer. The following events are defined
as an "Event of Developer's Default": Failure of Developer to perform any of
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 sha;l occur, DOSP, to the fullest extent permitted by law shall have
the right to pursue any or all of the following remedies:
-16-
vw
�'. i .N'(''�-'°.. �'�T•':�'��.� .5., - ���N.t .<fx .��>Y ,4�f'�.ca �r{. k_'�� 4 ��
(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 f rom 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 DOSP.
2.03 Events of Default'- DOSP.
In
( 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
0 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-
M Remedies for DOSP's Default. If an Evert 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:
W 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
damages resulting from such default.
. 2.04. Unavoidable Oelay. For the purpose of any of the provisions of
this Agreement, neither DOSP 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,- 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, 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 art (not
.��Y Y party
including p y' y , g
g such art s insolvent of financial condition) it being the
�iM'c r-R
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 -
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
b
waiver made y either party with respect to performance, or manner or time
Y,z3a thereof, of any obligation of the other party or any condition to its own
obligation under this Agreement shall be considered a waiver of any rights of
the party making the waiver with respect to the particular obligations of the
` <{ other party or condition to its own obligation beyond those expressly waived
and to the extent thereof, or a waiver in any respect in regard to any other
rights of the party making the waiver or in regard to any obligation of the
other party.
R `Q
ARTICLE III
INDEMNIFICATION
Notwithstanding any policy or policies of insurance required of
"t^}
Developer, Developer shall indemnify and save harmless DOSP from and
against
;7
any and all actions, claims or demands, suits at law, in equity or
before
�y
administrative tribunals, due to the negligence of Developer, its
agents,
'a=
servants employees or contractors arising out of the use or occupant
� � Y 9 y
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-
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
A 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 a
mixed -used 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 -
so terminate this Agreement Developer Shall pay to DOSP Othe 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. W 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
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
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.
UO 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
ZI —
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
Avl� 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
/N 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-
�.. 'e.b':+. ..... - �:'.. �.; :C, , '^��. <•...� i i�r _�!-'4 is .�:: '�'�':-• `. A' ;,1�}y
binding and conclusive on DOSP and Developer and enforceable in any court
of competent jurisdiction. Together with the determination, the
Arbitration Panel shall provide a written explanation of the basis for the
determination. Each party shall pay the fees and expenses of the member
of the Arbitration Panel designated by such party, such party's counsel
and witness fees, and one-half (1/2) of all expenses of the third member
of the Arbitration Panel.
ARTICLE VI
MAINTENANCE STANDARDS
6.01 Waste. Neither
Developer
nor DOSP shall
permit, commit or
.4
„r
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 AFacilities 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�FacilitiesI
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 -
establishing the relationship of co-partners, 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
� r
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
L I
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 -
u .4�i'k'� _ Y�S.� rr'• _
�L
�4.
¢p If
Y-
u
fullest extent permitted by law. Developer covenants and agrees that if this
Was
Agreement shall be judicially determined to be invalid and unenforceable for
any reason whatsoever, the Ground Lease shall nevertheless remain in full
force and effect. Contemporaneously with the execution of the Agreement,
DOSP's Attorney has delivered an opinion to Developer opining that the exe-
cution and delivery hereof by DOSP is in 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 Representatives Not
Individually Liable. No member, official, representative, Off -Street Parking
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
Agreement, while serving in their representative or official capacity. No
member, official, Off -Street Parking Board Member, representative or employee
of the City or the City Manager or DOSP or the Director of DOSP shall be
personally liable to Developer or any successor in interest in the event of
any default or breach hereunder by DOSP or City or for any amount which may
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,A or by
Developer toA 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:
General Counsel
Bayside Center Limited Partnership
10275 Little Pautuxent Parkway
c/o The Rouse Company
Columbia, Maryland 21044
- 25 -
(b) DOSP. In the case of a notice or conknication to DOSP, if
addressed'as follows:
A
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
=;Y 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 approval94
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
s.' the City pursuant to Chapter 159 Part _II of the Florida Statutes, therefore,
Developer and DOSP covenant and agree as follows:
- 26 -
(b) DOSS'. In the case of a notice or co mmication to DOSP, if
addressed' as follows:
A
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.
2 r.
7.07 Successors and Assigns and Riahts Uoon 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
A 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
y>'' " Ground Lease. DOSP may not assign or transfer its interest in this Agreement
without Developers 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
rR:=� the City pursuant to Chapter 159 Part II of the Florida Statutes, therefore,
Developer and DOSP covenant and agree as follows:
-26-
(A) the Bonds are intended to be tax-exeript "industrial devel-
opment bonds" within the meaning of Section 103(b)(6) of the Internal
Revenue
Code and Chapter 159
Part
II of
the Florida Statutes
andtherefore
neither
Developer nor DOSP
will
(i)
commit, perform, or
r�
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 not DOSP will make any use of the
proceeds of the Bonds or any moneys, securities or other obligations on
• deposit to the credit of the Developer or otherwise that may be deemed by
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
she 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
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
r
construed to require Developer and DOSP to comply with Section 103(c) to
the extent of such applicability); and
(D) that neither Developer nor DOS? will, (i) 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 -
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s�4.'.�T._«
7.09 Amendments. Developer and DOSP shall cooperate in Amending this
document from time to time as may be required by bond counsel or in accordance
with the bond documents; provided, however, that any such amendment shall not
affect adversely in any material respect any rights of either Developer or
DOSP under this Agreement.
IN WITNESS WHEREOF, ROUSE MIAMI, INC., the sole general partner of
BAYSIDE CENTER LIMITED PARTNERSHIP, has caused this Agreement to be signed in
its. name ti is President and its corporate seal to be hereunto affixed and
duly attested to by its Assistant Secretaand 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 DOSP, on the day and
year first hereinabove written.
ATTEST:
o
. -
nn W. Stee
:corporate Sea11
ATTEST:
ecretary
A
1509F/451A
BAYSIDE CENTER LIMITED PARTNERSHIP
By: ROUSE-MIAMI, INC., general partner
By:
Mathias J. DeVitoj rest ent
DEPARTMENT OF OFF-STREET PARKING OF THE
CITY OF MIAMI
By:
oger M. ar ton, erector
- 28 -
..fir,« f`,
is
MINORITY PARTICIPATION-AGAMMENT
THIS MINORITY PARTICIPATION AGREEMENT ("this Agreement") made
this ____
day of
, 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 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,
0 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
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
("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 Agreement 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 anb the Developer have executed and delivered the Lease simultaneously
with the execution and delivery of this Agreement.
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 modified or amended from time to time.
"Bayside Specialty Center" has the meaning ascribed to it in the
Statement of Background and Purpose.
_+. "the City" has the meaning ascribed to it in the opening paragraph of
M
this Agreement.
"the City* Manager" has the meaning ascribed to it in the openin
g
$p = 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 -
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 the following persons as defined in the following
definitions as approved by U.S. Department of Housing and Urban Development
(11H.U.D.1% 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).
"Minority Business Enterprise" means a corporation, partnership,
individual, sole proprietorship, joint stock company, joint venture or other
-3-
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:
•. Lease" has the meaning ascribed to it in the
"Parking Garage
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.
"Pro ect" 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.
n "clause"
"Se_ct_ion" , "subsection" , " ara ra h", "subparagraph , cl_ ause , 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
using or occupyingor entitled to use or occupy any part of the Project.
=.' 4 -
ra
R'•.♦� '.`aft � -. -.. ,� .- _ - - - - __ - - - -_ - - _ - _ - _ _ -
-71
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baµ
i
•_�'4T.t �y
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A......E-.� t.. ,�..'{t�J., ♦"w�.. • ..-1J"�1��^'e .s':'' dA ♦ i
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f
,�i ^s . - _Y5 _:. ... •,�`E' �� ..�. _, _. .__z .. , � ._� rc:':�i'.,s:�. ,... .,•5` �. ,... .. _ � .,, r.. .. _._••.. .�.... 5..itcr$• - .daa� t. �_ —
"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:
* y`t n 35X of the total contract rice ( without
a. Thirty-five percent ( ) P
{.- duplication) of all Construction Contracts to be awarded to Minority Business
k .,
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.
Section 2.2 Developer's Obligation. The Oeveloper'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,
C. Requiring the Developer's general contractor to use diligent
efforts to hire Minorities from the neighborhoods having the highest rate of
-5-
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,
'x
w.�'��• e. Waiving bonding requirements for qualified Minority Business
Enterprises if (i) that Minority Business Enterprise otherwise meets the
(ii) the waivi
requirements of the Developer, waiving of the bonding requirement is
necessary in order for the bid to be competitive with non -minority bids, and
'there is no other Minority Business Enterprise bidding on the same
contract that does not require a waiver of the bonding requirements,
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
4 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
yx;ey 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
,f. tz!
Enterprise in meeting any cash flow requirements for the subcontracts and (ii)
x
such Minority Business Enterprise can provide Developer with the evidence
Y' required under the contract with Developer that the Minority Business
Enterprise has paid all subcontractors, materialmen and laborers performing
work or supplying material for the Minority SUsiness 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-
S
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 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 1, 1985 (such date to be extended in the event that before
a' November 1 1985 the project opening date is extended beyond November 1
C..... P j 9 Y
1986), making them available for leasing to Minority Tenants, consistent with
hn�x'
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-
.`l4;,':'='r;;xi,.t<. i. ... ..'.�.� :� r•":� sr. ;.�•,'s','�'`����'d;�
:��, NFL. :�t- _ ,.1y:•�.:L. `'s'_' _'i.. _ .p:., 't=�,_:..�,h?,�x1,
1•'IA;Y. j81rTr•}. �Ft. •'t' �I., 'k'�.Y'�'V
=`-�.z.,.r_ �-daa��— � , : � � _ —. %}: �s. _ �.:_ ._ . '.t,'4�;.. J•, :'�t..aaa+W`�' �.,1.+,eY�.::d u.:;��;'�;', . ^``r
41.
representatives will be supplemented as necessary by persoMhel fMM 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
ON 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
- 9-
_. ., ..__ _._.._- }: 7�__ _..., ._-._- l.��X �`l"�}?• Y�Su'�j ,cq >..+ r.�vr'. �y. �•,;�: '�.6' _a�. pp
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, the SBA, and local, state 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 Projeet. The parties hereto
recognize that neither the goals set forth in Section 4.1 nor 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
00*1 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.
(ii) 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.
- 11-
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ARTICLE V
FOUNDATION
Section 5.1 PuE2ose. The Developer shall establish or cause to be
established the Foundation for the following purposes:
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
e'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.
-12-
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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 $lDOtOOO payment shall be made in
equal quarterly installments commencing on the Rent Commencement Date, and
ending at the end of the term of the Lease. The Foundation Contribution shall
be adjusted at the end of each Rental Year based upon the Annual Financial
Stiiement. 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 W 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 reason-
ably acceptable to Developer and which has goals and purposes similar to the
Foundation. The Foundation Contribution shall be the only financial obligation
t hat Developer shall have to the Foundation or such other no organi-
zation 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 (79%) 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
site to take applications, screen applicants and refer prospective Minority
employees to Tenants,
b. Provide the referral service with office facilities at or near
the Project site, during the construction period,
eft� c. Provide 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.
Section 6.2 Developer Employment. Developer agrees to use its
diligent, good faith efforts to hire Minorities for at least seventy-five
percent (75%) of its project operation positions and for at least fifty
em) percent (50%) of key management positions of the Developer. With regard to
these 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.
-14-
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ARTICLE V11
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
will (a) advise Developer on additional means and methods of accomplishing
em� 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
Section 8.1 Florida and Local .Laws Prevail. This Agreement shall
be governed 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
WE
City or the City Manager shall have any personal interest, direct or indirect,
in this Agreement, nor shall any such member, official, representative or
employee participate in any decision relating to this Agreement which affects
his or her personal interest of any corporation, partnership or association in
which he or she is, directly or indirectly, interested. No member, official,
representative or employee of the City or the City Manager shall be personally
liable to Developer or any successor in interest in the event of any default
or breach by the City or the City Manager or for any amount which may become
due to Developer or successor or on any obligations under the terms of the
Agreement.
• Section 8.3 Notice. A notice of communication under this
Agreement by either the City or the City Manager, on the one hand, to
Developer, or, on the other hand, by Developer to the City or the City Manager
shall be sufficiently given or delivered if dispatched by registered or
certified mail, postage prepaid, return receipt requested or given by hand or
other actual delivery to such party; and
a. Developer. In the case of a notice or communication to
Developer, if addressed as follows:
General Counsel
Sayside 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 � 4anager, if addressed as follows:
City of Miami, City Manager
3500 Pan American Drive
Miami, Florida 33133
St
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ry7 i r}��'!�r p �1• ,•n•'� - - �, l `. ,r'1� y�v( C`. �� � ,'' r' �:�;�.. , h. �a a.#... �, 4. l.. .it_ _
.____ - _{..iE �•_m:1:'; _.r5.!�+y 1�; �. ,-.'F^.. :�+`!n `n.. 'fix. ..w..
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.
e0N Section 8.5 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 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 Assi ns. Except to the extent limited
h 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.
17
Section S.9 Estoppel Certificates. The City and Developer shall
u'
r: at any time and from time to time, within thirty (30) days after written
•i request by the other, execute, acknowledge and deliver to the other party
r 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
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
�s thereafter the party issuing the same shall be estoppel from denying the
veracity or accuracy of the same. Any certificate required to be made by the
City pursuant to this paragraph may be made on its behalf by the City Manager,
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
t� Section 10.5 of the Lease. The Arbitration shall be conducted in accordance
F;
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.
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 President and its corporate seal to
19
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be hereunto affixed, duly attested, and thb CITY COMMISSION OF MtAMI has
caused this Minority Participation Agreement to be signed by Howard V. Gary,
the City Manager, and duly attested to by Ralph G. Ongie, the City Clerk, on
the day and year first hereinabove written.
ATTEST:
[Corporate Seal]
ATTEST:
Ralph G. Ongie, City er
APPROVED AS TO FORM AND
CORRECTNESS:
- LUC A ALLEN DOUGHERTY
CITY ATTORNEY
968F/44OF
6893r
BAYSIDE,,CENTER_ LIMITED PARTNERSHIP
By: ROUSE-MIAMI, INC., general partner
By:
Mathias J. DiVito, PresIdent
THE CITY OF MIAMI, A MUNICIPAL CORPO-
RATION OF THE STATE OF FLORIDA
- 20
Howard V. Gary, City Manager
AGREEMENT OF GUARANTY
December 5, 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 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.
n 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
limitation, the obligation of Developer to complete, equip and pay for the
Parking 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
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
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
successors 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
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.
THE ROUSE COMPANY
8y:
athias 1. DeVito, President
1700F/457A
AGREEMENT OF GUARANTY
December 5, 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
limitation, the obligation of Developer to complete, equip and pay for the
Developer Improvements 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
r►, 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
14
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
successors 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 cl
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
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.
THE RASE COMPANY
By:
at as J. DeVito, res ent
1700F/457A-4
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84--1332 84-1333 84-1334
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