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HomeMy WebLinkAboutR-84-1341.3J-84-1211 12/6/84 - 134_134i.3 RESOLUTION NO. A R OLUTION AUTHORIZING THE CITY MANAGER TO EXEC TE A LEASE AGREEMENT, IN SUBSTANTIALLY 3,>{ THE F RM ATTACHED, BETWEEN THE CITY OF MIAMI - AND B YSIDE CENTER LIMITED PARTNERSHIP ON !!"'N -°_ BEHALF OF ROUSE-MIAMI, INC., AN AFFILIATE OF . THE RO SE COMPANY OF COLUMBIA MARYLAND . FOR THE PL NNING AND DESIGN, CONSTRUCTION, LEASING AND MANAGEMENT OF A WATERFRONT SPECIALT CENTER TO BE KNOWN AS "BAYSIDE = GJ - #=-:° SPECIALT CENTER" LOCATED ON A CITY-OWNED LAND PARC L CONTAINING APPROXIMATELY 12 .9 -� ACRES AND OCATED ON A PORTION OF BAYFRONT PARK ADJAC ENT TO BISCAYNE BOULEVARD AND "= MIAMARINA, ND FURTHER SPECIFYING THAT THE TERMS OF THE CONTRACT WILL RESULT IN A FAIR RETURN TO TH CITY BASED ON TWO INDEPENDENT APPRAISALS AN THAT SAID CONTRACT COMPLIES WITH REQUIREM NTS FOR COMMERCIAL USE AND n~ MANAGEMENT OF T E CITY'S WATERFRONT PROPERTY AS SET FORTH IN HE CITY CHARTER. WHEREAS, the City Commi sion determined in March 1983, that it is advantageous to the Ci to develop the City -owned land- 6,� .. w parcel containing approximate y 12.9 acres located on a portion of Bayfront Park and adjacent to iscayne Boulevard and Miamarina t for the planning and design, construction, leasing and management of a waterfront specialty center an parking garage to be known as "Bayside Specialty Center" and authorized the issuance of a request for proposals; and WHEREAS, the City Commission b)y Resolution No. 84-585 authorized the City Manager to execu e a lease agreement in substantially the form presented to th for the retail center and parking garage as one lease; and WHEREAS, separate lease agreements f r the retail center .., land parcel and the parking garage land parce became a require- ment of financing; and WHEREAS, this resolution covers the retai parcel included in the lease agreement approved by Resolution No. 84-585; and WHEREAS, the City Manager recommends that t e City Commis- sion approve the attached lease agreement and authorize its execution, which agreement provides for the planning and design, construction, leasing and management of the Bayside Specialty ?V-J �CJFY COMMISSION C MEETING of RESOLUTION No. J!NJ 1t t Center although simply bearing the title "Lease Agreement," in substantially the form attached, and further specifies that the terms of the contract will result in a fair return to the City based on two independent appraisals and that the said contract complies with the requirements for the commercial use and management of the City's waterfront property as set forth in the City Charter; NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The City Manager is hereby authorized to execute a Lease Agreement, in substantially the form attached, and upon Commission approval of all exhibits to the agreement, between the City of Miami and Bayside Center Limited Partnership on behalf of Rouse -Miami, Inc., an affiliate of The Rouse Company of Columbia, Maryland, for the planning and design, construction, leasing and management of a waterfront specialty center to be known as "Bayside Specialty Center" located on a City -owned land parcel containing approximately 12.9 acres adjacent to Biscayne Boulevard and Miamarina and a portion of Bayfront Park, and further specifying that the terms of the contract will result in a fair return to the City based on two independent appraisals and complies with the requirements for the commercial use and management of the City's waterfront property as set forth in the City Charter. PASSED AND ADOPTED this 7th day of December , 1984. A EST: J RALPH G. ONGIE City Clerk PT ED AND APndOVED BY: .� G. MIRIAM MAER Assistant City Attorney APPROVED City Attorney GMM/wpc/pb/374 Maurice A. Ferre_ MAURICE A. FERRE, MAYOR CORRECTNESS: "1_01AJ,`. A EVALUATION OF LEASE AGREEI ENT BETWEEN CITY OF MIAMI AND ROUSE COMPANY BAYSHORE SPECIALTY CENTER MIAMI, FLORIDA r F !{f 4 NORMAN KURFERST, M.A.I. PRESIDENT August 6, 1984 Mr. Donal R. Stewart Property Manager City of Miami 65 S.W. 1st Street Miami, Florida 33130 Dear Mr. Stewart: THE KURFERST COMPANY REAL ESTATE APPRAISERS AND CONSULTANTS M PONCE DE LEON BOULEVARD SUITE I" CORAL GABLES. FLORIDA 33134 PHONE 1305) 448.3267 Pursuant to your request I have made an investigation and analysis T of all matters pertinent to the Lease Agreement between the City of Miami and Bayside Limited Partnership, on the property to be devel- oped as "Bayside Specialty Center". Bayside Limited Partnership is a subsidiary of the Rouse Company, the project developer. The Rouse Company is the name commonly associated Twith the lessee and developer and is used in lieu of Bayside Limited Partnership. T As a result of my investigation and analysis of the information ob- tained therefrom, as well as general knowledge and information per- taining to real estate, it is my considered opinion that the subject lease, as of the date of this report: PROVIDES A FAIR RETURN AND IS ADVANTAGEOUS TO THE CITY OF MIAMI. The fair return conclusion is based upon all the benefits to the city rfrom within the leased property itself, as well as the benefits ob- tainable to the city outside of the subject property. The subject Bayside Specialty Center Development as proposed, is the most significant item within the Downtown Development Plan to 84-1341. 3 r • • r r N A r r r -2- Mr. Donal R. Stewart August 6, 1984 revitalize the city's core and draw a crowd to the bayfront. This development proposal and subsequent lease is the result of six years of planning, an ammendment to the city's charter, a year of weighing competing proposals, six months of negotiations and several years of efforts of a Blue Ribbon Committee of private business in- terests headed by Developer David Weaver and city officials. The Bayshore Specialty Center should draw at least ten million visits per year by local residents and tourists which will help the downtown area. The project will generate one and a half years of construction activity and approximately one thousand permanent jobs. rThe Rouse Company and its ability to perform has been demonstrated thru the Fanevil Hall Market Place, Boston, Massachusetts, The Gallery at Market East, Philadelphia, Pennsylvania; Santa Monica Place, Santa Monica, California and Harbor Place, Baltimore, Maryland among others. My investigation and analysis consisted of interviews with public and (j private persons with knowledge of the subject proposal and with the materials provided me by the City of Miami which consisted of: r(A) Lease Agreement between Bayside Limited Partnership and City of Miami, revised 5/23/84 and containing r102 pages plus Exhibit G and Parking Garage Comment. (B) Proposal of The Rouse Company for Bayside Specialty Center, Miami, Florida; dated September 19, 1983 and containing 111 pages. (C) Bayside Specialty Center, Retail Market Analysis, Miami • -3- Mr. Donal R. Stewart August 6, 1984 (C) Miami, Florida; dated September 1983 and contain- ing 109 pages. (D) Parking Garage Agreement between Bayside Limited Partnership and The City of Miami Department of Off -Street Parking for Bayside Specialty Center; revised 7/16/84 and containing 62 pages. (E) Minority Participation Agreement between City of Miami and Bayside Limii.ed Partnership dated July 24, 1983 and containing 15 pages. (F) Financial Projections of Annual Rental to the City of Miami - Bayside Project as of May 22, 1984. Identification of the Property: The property which is subject of the lease agreement consists of 16.72 acres, plus or minus, of land located between Biscayne Boulevard, Biscayne Bay, Port Boulevard and Chopin Plaza, Miami, Dade County, Florida. The Proposed Improvements: The improvements proposed represent a combination of uses for public and business use. The public use improvements consist of an Amphitheater, Civic Plaza, Waterfront Promenade, Park and extension of existing park onto the Pier Area. r r Mr. Donal R. Stewart -4- 0 August 6, 1984 Improvements for both public and business use consist of a People Mover Station, Pedestrian Bridge, Parking Garage, Surface Parking, and Symbolic Beacon to Intercoastal Waterway. The business improvements and their relationship to the Public im- provements are described in the following exhibits copied from The Rouse Company Proposal. A F E.C. TRACT dt, BER 0,1 It A Y S 10 E, AV MAARKET SQUARE:CIVIC PLAZA FOR THE ENJOYMENT OF' ,THE PUSUC-... 4L 0 el % 16 C L MARKET SQUARE / CIVIC PLAZA r I I PROGRAM SUMMARY BAYSIDE IvEPousECOMPANY • NORTH PAVILION 1ST FLOOR 2ND FLOOR TOTAL RESTAURANT/CAFE 17,504 21,600 39,104 WMtV S MMMET AESTAURAnn RETAIL 30,328 15,568 45,896 TOTAL LEASEABLE SF 47,832 37,168 85,000 • SOUTH PAVILION 1 ST FLOOR 2ND FLOOR TOTAL RESTAURANT/CAFE 11,864 13,768 25,632 RETAIL 32,856 - 32,856 SPECIALTY FOOD - 24,152 24,152 TOTAL LEASEABLE SF 44,720 37,920 82,640 • MARKET BUILDING FLOWERS/PRODUCE 5,500 MARKET FOOD 3,500 BULL MARKET 7,000 - TOTAL LEASEABLE SF 16,000 • PIER RETAIL (MARINA SALES) 1,000 RESTAURANT 15,000 TOTAL LEASEABLE SF 16,000 • TOTAL PROJECT AREA GENERAL RETAIL 79,752 RESTAURANT/CAFE 79,736 r SPECIALITY FOOD 24,152 MARKET FOOD 3,500 BULL MARKET 7,000 FLOWERSIPRODUCE 5,500 o TOTAL LEASEABLE SF (NEW PROPOSAL) 199,640 WITH EXISTING REFLECTIONS/MARINA 26,950 TOTAL LEASEABLE SF 226,590 • PARKING STRUCTURE • MARINA PARKING • OVERFLOW SURFACE PARKING 1200 CARS 40 CARS 250 CARS BICENTENNIAL A RK , , .... I I - 6 , . . F.E.C. TRACT 1~1 to -.0 -4 2 4* R T M I A M I S I T E L 0 C A T 1 0 N P L A N SEPTESISER 1993 SCALE = 1'- 100' 0' BAYSIDE THE ROUSE COMPANY ��ITUtt.yN�,b{��l••11.U1M CONNItt1OM rl i ,?R • >•IL •'•�TF. t _iir,'V L+�yy C �•`: t A �� ,<�: t ' •, �s:... t:wtA Q R T ACC E �• •� '��i'•.e.��`' `"yam'' • '� •°'lrn~ e E ... -- N "E •W..J _ - �— �- 6 � � - 60. 012. IV ��hh ��- t '•' J., '.1 i' _Lim �9+ cE ti 6� a `\ •'k'J _ - Inc = _ _'�.= -��• / I' us 1 lu V! f .77 z-•,r~� - • � < <�`�,-••.� I1 �..I. i"� ��-•••�-�� '• �, I 1us T.%of 1 4Ift+IL�•,. •.�Vj•r, :.'--��`1'►,.._, ♦ •.. 1�y�1`�- A.' IL Cisi �t � �.i w'� -� I• i f � �� ` •. � i . //� f '•; c: ..;- •t it (All 0 44 � ► i";;4;,. • j zit.—J I (� _;w y I, p h t �• ••r. ,.. � ,..,�;,�•�,:_.' �, ��� jice', fit S I T E P L A N' SEPTEMBER 1983 SCALE 1'- 40'-0' BAYSIDE THE ROUSE COMPANY r r r _ PLANT►NG DIMINISHES IMPACT OF PARKING ... ',,,,,;�►�� ,, GARAGE c.•t ' Wit of wo. •��. . l a .; •• 1 W• M 1.. 1�/1r 1 � • `r h � �7 • � r PROJECT :=ate rrte PRESERVES I EXISTING GROVE OF r MATURE ;TREES 1 ,w LANDSCAPING. \' AND SITING,;; , CREATES A FEELING OF ' : , • . "PAVILIONS" WITHIN THE PARK. �> O O •: o a Q LANDSCAPED INTEGRATION WITH PROPOSED FY AMPHITHEATER ., � INTEGRATION WITH NATURAL LANDSCAPE 4t lick v *T— Z,"Al ul #all to J es o 40 Sl r ... R cal B AYSI 3n MARKETSOLIARE A CIVIC PLAZA FOR THEE OF THE PUBLIC. JL.L 't - �! •,fit, ',r pw to Ile" , 2w vv 114 Of n e MARKET SQUARE l CIVIC PLAZA I r �1 r .R .A .0 Twvcroa .. _ �. .; • • .: ..• � • IIIf1111f Kpt�fflMN Lo moo !!"" « 'n �,:��. FOUNTAINS AND OPEN k, MARKET BUILDINGS INVITE PEDESTRIANS ' TO MARINAdo al ba elk •l w lot an i •w•� d �Mr •f•• i� •�,� F•E.C. TRACT •• 1. ItLJ ®r, t 1 BEACON TO IRITRAC'C)ARTAL PIER PARK PRESERVES OPEN VISTAS TO BISCAYNE BAY 4- 3 J PIER PARK VISUAL IMAGE '. 6 F:E.C.- TRACT co%r OPEN PEDESTRIAN 00. CIRCULATION INTEGRATES PROJECT WITH EXISTING PARK. MARINA AND CSD K 0 ul t I ca EASY ACCESS TO AND il FROM PROPOSED j; . AMPHITHEATER or '` � PUBLIC PEDESTRIAN ACCESS V F:E.C. TRACT. • • �r rtbtf��.w ' EASY ACCESS TO�ctK"S '. FUTURE PROPOSED "�► W 1-O PEOPLE -MOVER_• STATION AND in .�:.•� s PEDESTRIAN BRIDGE ,• �~�''""`••° TTT ` T•ti1�'i3� .w ..r wn . f'�• � 1� 1 46 is ; N 7 � 1 •. •• 1 �y. r rw�• W u M r A `'i•, , R,• ,.:!ti ..i. • . ..� . ' .. � � fir, to VL •LkC J an..tt;?;� ;� a,��'�;, :i:••:°�+� CONTINUATION 4 �`s``""• rS'1��'i AND tooENHANCEMENT OF EXISTING • . • • •fl '' • WATERFRONT ;�.... �:�., '• 'i PROMENADE I PUBLIC ACCESS TO WATERFRONT I v 0 F:E-.C. TRACT fir., Q POTENTIAL:,=_ OVERFLOW SURFACE PARKING !-7i 250 J T. CARS vi r6 PARKING 0 or, --I 1200 CARS l000� I ENTRANCE B. A Y S 105..., • DRIVE TOA T PARKING, .�`-��" 1661 W ACCE SS DROP—OFF AND SERVICE r1tar%mour DRIVE 14. to BUS DROP-OFF cz, -9 F rww rl 4 ILA Ito-, of rp & an 1; ?0,I, PROPOSED OPOSE- D—IGRA- NDF +PRIX COURSE k,•' "7 001141% -1 sesomameo'e., SERVICE VEHICULAR ACCESS GRAND PRIX C If F:E,C. -T-R -A C.T. 1putual p1blistliva fib 0I A- EA_ B us R licil POTENTIAL OVERFLOW .J `T-�§URFACE PARKING 250 CARS o 0011, • AREA A 2's.- 1JAVIIA"RA UCIf"IL-rr CDJ .,OFALL NEW •I -eke .,CONSTRUCTION :57 FT. ABOVE o. MEAN WATEF LEVEL,,Q. us 34 t Sol 9.410 0 ISO% 4 AREA A-3 • PROPOSED' 0 FBUILDING FOOT PRINT IS.91 ACRES (2-06 ACRES ALLOWED) SANITARY FORCE MAIN I ? ���� .tj� ;� '�; NO FOUNDATION OR i._._ 3B STRUCTURE FALLSi =-- _— -- —�;..��::� ;k.l:►� • •�' WITHIN 10 FT. OF THE Now -,CENTER LINE OF THE a FORCE MAIN Bus 1. L COMPLIANCE WITH R.F.P. LIMITATIONS W 0 IMr, Donal R. Stewart -5- August 6, 1984 ILease Highlights: ITerm: 45 years (Page 20) Renewal Term: Two additional options of 15 years each (Page 20) Rental Commencement Date: October 31, 1986 (Page 17) Lump Sum Payments: City receives $2,650,000. to buy out existing restaurant lease on site. (Page 37) City provides $4,000,000. in im- provements. (Page 40) Rental Payments: Years Minimum Base Rental 1-2 $ 325,000./year 3-6 $ 650,000./year 7-35 $1,000,000./year 36-45 Special Provisions described on (Pages 32 and 32a) Option Years $1,000,000. or 35% of Net Income Available for Distribution. City participates in project profits based upon 35% of Net Income available for distribution when this distribu- tion percentage exceeds the minimum base rental. The total leased area is 16.72 acres, plus or minus, of which one half the site area is totally park and for public use. Of the re- maining half, a portion is also beneficial to the public thru use of the parking garage and open parking area. A Maintenance Agreement divides the maintenance between the City and lessee. r 61 r Y- n. z ^fit. ,4a 'n El 1 fl 1 Mr. Donal R. Stewart August 6, 1984 For all practical purposes, the city is providing approximately one half of the overall site for business and ancillary business use; although the agreement states the entire site with varied responsi- bilities among lessor and lessee. The land value for the subject, considering its Highest and Best Use under the provisions of its "PR" Zoning Classification (Public Rec- reational Use) is estimated at $1,000,000. per acre. The portion of the site beneficial to the Rouse Company is estimated to be 8.36 acres, plus or minus or with an estimated present worth 1 of $8,360,000. The stabilized rental beginning in the seventh year of $1,000,000. per year equates to an Overall Rate of Return of the 11.96% on the stabilized guaranteed rental. This rate exceeds estimated market rate by approximately one percent. Following is a tabulation of the first six year guaranteed rents and their present worth discounted at 11%. GUARANTEED AMOUNT BELOW DISCOUNT PRESENT YEAR BASE RENT STABILIZED RENT FACTOR WORTH 1 $ 325,000. $ 675,000. .900901 $ 608,108. I 2 $ 325,000. $ 675,000. .811622 $ 547,844. 3 $ 650,000. $ 350,000. .728485 $ 254,970. 4 $ 650,000. $ 3501000. .668731 $ 234,056. 5 $ 650,000. $ 350,000. .593451 $ 207,708. 6 $ 650,000. $ 350,000. .534641 $ 187,124. $3,250,000. $2,750,000. $2,039,810. The first six years produce a guaranteed base rent of $3,250,000., which is $2,750,000. below the amounts that would have been collected at the stabilized base rent of one million dollars per year. I rrr (� Mr. Donal R. Stewart -7- August 6, 1984 i FDiscounting the rent collections below the stabilized base rent to present worth, indicates an amount of 2,039,810. FThe aforementioned calculations are based upon the guaranteed rent- als only. There is a reasonably good possibility of the city's rent being above the one million dollar per year level in the fourth year, thru its participation in the thirty five percent of net income to be distributed. Following in this report are the Financial Projections of Annual Rent prepared for a 35 year period, which predict a $10,000,000. an- nual rent by the 25th year, per the City of Miami. Most leases are written where benefits, above fixed base rents, are calculated on a percentage of gross earnings. The subject is based upon a percentage of "Net Income Available for Distribution". With- in the lease agreement are certain provisions which protect the city from possible abuses, as stated on Pages 15 and 16 under "Operating ' Expenses" and on Pages 35 and 36, under "(e) Developers Records". The benefits to the City of Hiami are a good and adequate return, dollar wise, in relationship to the lands value. In addition to this, the city obtains a good and functional park site and an on site improvement which could reasonably be expected to attract ten million visitors per year. The city also obtains a theme center in downtown which contributes to the convention, cultural, civic, economic and other recreational facilities available. It should be noted that the development of Bayside Market Place is not expected to hurt any existing or planned future centers within the Greater Miami Area. Mr. Donal R. Stewart -8- August 6, 1984 I wish t o certify that: I have no interest present nor prospective in the subject property. This report expresses the opinion of the appraiser and the compen- sation for making this report has in no way been contigent upon the report of a predetermined nor specified conclusion nor upon any findings to be reported. The conclusion reported is as of the date specified. Conclusions 1 on real estate are affected by eocnomic conditions, both local and national. Therefore, conclusions will vary with future market con- ditions affecting real estate. Appraiser shall have no responsibility for legal matters, questions of survey, opinion of title, soil or sub -soil conditions, engineer- ing nor other technical matters. All sketches were provided to appraiser and are included solely to aid the user of the report in visualizing the property and its loca- tion. Each finding, prediction, assumption or conclusion contained in the report is appraiser's personal opinion and will not be an as- surance that an event will or will not occur. ;:: �'�F `arty. Appraiser may assume that there are no conditions relating to the E - .. _,1. real estate, sub -soil or structures located in the real estate which ;y�� � would affect appraiser's analyses, opinions or conclusions with re- spect to the real estate that are not apparent. .' ',H�'~ ~'y � �.'� This report has been made in conformity with and is subject to the .=,,�,� requirements of the Code of Professional Ethics and Standard Profess- � ;�; ional Conduct of the American Institute of Real Estate Appraisers of "��� �" =�.�'� the National Association of Realtors. �: �� .. - ,_s „�; >.�.. ` Mr. Donal R. Stewart - -9 August b, 1984 Possession of this report or any copy thereof does not carry with it the right of publication, nor may the same be used for any pur- pose by anyone but the applicant without the previous consent of the appraiser and in any event, only in its entirety. The appraiser herein by reason of this report, shall not be required to give testimony or attendance in court nor at any governmental hearing with reference to the property in question, except as agreed upon. The current purchasing power of the dollar is the basis for the value reported. The property has been appraised though free of liens and encum- brances, in reasonable ownership and under competent management. Neither all nor any part of the contents of the appraisal report (es- pecially the conclusions as to value, the identity of appraiser, references to the American Institute of Real Estate Appraisers or references to the M.A.I. designation) shall be disseminated to the public through advertising media, public relations media, news media, sales media nor other public means of communication without the prior written consent and approval of appraiser. 1 Following are the Financial Projections of Annual Rent prepared by the City of Miami, the Subject Lease and the brief Qualifications of the appraiser. If you have any questions concerning this evaluation, please feel free to call me. >.8 Ve truly yours, ' Norman Kurfer t, M.A.I. - .. _ .. ;•i7`f�r�„rr.��4:.: ,, - rsA'C�,�y$T.y3 .�j,�y { � x £ i;• u1 . - ,� iy�'Y _ - v ? ` j to .L � `1 , j• ,? r , yy,. J s.T. ,`k',`,. 1:{,rr.. > t-:t.h�p r ..' • . '7„ ': - .,...'x:,:rif - f,:2 •'"i... 3a.•'. _ �..�L a �f'i'iu �J.J••'a ±z'��i 1e?.' 1':.r :i. •-.1. ', �u�in ^ �5:." ' .�. x'.t wd us ssssssssssssssssssssssssssssssssssssssssssasassssssrss:sssssassssssssss:sssassasss:sssassssssassssa CITY OF MIAMI - BAYSIDE PROJECT B:BAY-ll-A FINANCIAL PROJECTIONS OF ANNUAL RENTAL TO THE CITY AS OF MAY 22, 1984 (0001's OMITTED) sssssssssssssssasasss:sssss::ssssassssssssas::s:as:ssssssss:::::sssssssssssss:ssssssss:s:ssasasssss PROJECTED ANNUAL NET CITY'S TOTAL CITY'S RETURN PER GROSS CITY'S AVAILABLE PARTICIPATION ANNUAL DEVELOPED ACRE (3) RENTAL INCOME BASE RENT FOR IN NET INCOME CITY --------------- -- YEAR YEAR # (1) (2) DISTRIBUTION OVER BASE RENTAL INCOME AMOUNT PERCENT - - - 1986 ------ 0 -------- --------- 3,233 163 ----------------------------- -379 0 -------- 163 -------- $41 -------- 4t 1987 1 14,797 325 124 0 325 81 8t 1988 2 16,398 325 556 0 325 81 at 1989 3 17,797 650 970 0 650 163 131 1990 4 19,083 650 1,440 0 650 163 12% 1991 5 20,467 650 1,942 30 650 163 lit 1992 1993 6 7 21,956 23,560 650 1,000 2,479 2,789 218 0 650 1,000 163 250 10% is% 1994 8 25,288 1,000 3,401 190 1,000 250 14% 1995 9 27,148 1,000 4,055 419 1,000 250 13% 1996 10 29,151 11000 4,753 663 1,000 250 12% 1997 11 31,483 1,000 5,664 982 1,266 317 14# 1998 12 34,002 1,000 6,647 1,327 2,327 582 23% 1999 13 36,722 1,000 7,710 1,698 2,698 675 2St 2000 14 39,660 1,000 8,857 2,100 3,100 775 26% 2001 15 42,832 1,000 10,096 2,534 3,534 884 28% 2002 16 46,259 1,000 11,435 3,002 4,002 1,001 291 2003 17 49,960 11000 12,880 3,508 4,508 1,127 301 2004 18 53,956 1,000 14,441 4,054 5,054 1,264 32t 2005 19 58,273 1,000 16,127 4,645 5,645 1,411 33% 2006 20 62,935 1,000 17,948 5,282 6,282 1,571 341 2007 21 67,970 1,000 19,914 5,970 6,970 1,743 35t 2008 22 73,407 1,000 22,038 6,713 7,713 1,928 35% 2009 23 79,260 1,000 24,332 7,516 8,516 2,129 361 2010 24 85,622 1,000 26,809 8,383 9,383 2,346 371 2011 2012 25 26 92,472 99,870 1,000 1,000 29,485 32,374 9,320 10,331 10,320 11,331 2,580 2,833 381 38% 2013 27 107,859 1,000 35,494 11,423 12,423 3,106 39% 2014 28 116,488 1,000 38,865 12,603 13,603 3,401 391 2015 29 125,807 1,000 42,504• 13,877 14,877 3,719 402 2016 30 135,872 1,000 46,435 15,252 16,252 4,063 40% 2017 31 146,741 1,000 50,681 16,738 17,738 4,435 41% 2018 32 158,481 1,000 55,266 18,343 19,343 4,836 419 ' 2019 33 171,159 1,000 60,218 20,076 21,076 5,269 421 2020 34 184,852 1,000 65,566 21,948 22,948 5,737 421 2021 35 199,640 1,000 71,342 23,970 24,970 6,243 421 -------- ------- -------- -------- ------- ------- AGGREGATE VALUE OF CITY'S ANNUAL INCOME a $263,292 �- ssssssss PRESENT VALUE OF CITY'S ANNUAL INCOME @ 10% r $23,971 ::sssss (1) Based on Rouse Proposal through 1996, and 81 increase thereafter. (2) Base Rental is increased in Year #36 to the Average of the previous -three years. (3) Development Will occur on four (4) acres of Bayfront Park, valued at $1,000,000. per. acre. Draft - 5/23/84 Revised 5/23/84 Tg—.7-4�� 7 between BAYSIDE LIMITED PARTNERSHIP and CITY OF MIAMI dated '1 1984 BAYSIDE SPECIALTY CENTER Draft — 5/23/84 Revised 5/23/84 LEASE AGREEMENT between BAYSIDE LIMITED PARTNERSHIP and CITY OF MIAMI dated , 1984 BAYSIDE SPECIALTY CENTER 1 TABLE OF CONTENTS i PACE ARTICLE I - EXHIBITS AND DEFINITIONS 4 Section 1.1. Exhibits . . . . . . . . . . . . . 4 Section 1.2. Defined Terms: 5 ARTICLE II - GENERAL. TERMS OF LEASE OF LEASED PROPERTY 18 Section 2.1. Lease of Leased Property to Developer. 18 a. Premises 19 b. Original Term: : : 20 j� c. Renewal Term . .. 20 i� d. Possession of Leased Property. . . . . . . . . 21 e. Conditions Precedent . . . . 22 f. Developer Obligations Prior to Possession. 23 Section 2.2. Restrictive Covenants . . . . . . . . . . . . . . . 23 a. Use Prohibitions of the Leased Property. . . . 24 b. No Discrimination . . . . . . . . . . . . . . . 24 c. Permitted Uses for Leased Property . . . . . . 25 d. Use Prohibitions of the Park Site. . . . . . . 25 e. Enf orceability : 26 Section 2.3. Easements. . 0 27 a. Existing Easements . . . . . . . . . . . . . . 27 b. Easement Granted to Developer. . . . . . . . . 27 c. Limitations on Easements Rights. . . . . . . . 29 d. Duration of Easements . . . . . . . . . . . . . 31 e. Confirmatory Instruments . . . . . . . . . . . 31 Section 2.4. Title of Leased Property . . . . . . . . . . . . . 31 Section 2.5. Rental . . . . . . . . . . . . . . . . . . . . . . 32 a. Rentals Payable . . . . . . . . . . . . . . . . 32 b. Continuous Operation . . . . . . . . . . . . . 33 c. Parking Garage Delay . . . . . . . . . . . . . 33 d. Payment of Rental . . . . . . . . . . . . . . . 34 e. Developer's Records . . . . . . . . . . . . . 35 f. Pre -Construction Contributions . . . . . . . . 36 Section 2.6. Covenants for Payment of Public Charges by Developer . . . . . . . . . . . . . . 38 Section 2.7. Approvals and Consents . . . . . . . . . . . . . . 39 Section 2.8. Security and Police Protection . . . . . . . . . . 39 Section 2.9. Parking Availability . . . . . . . . . . . . . . . 40 a. City Improvements . . . . . . . . . . . . . . . 40 b. Condition of Leased Property . . . . . . . . . 40 Section 2.10. City Improvements . . . . . . . . . . . . . . . . . 40 Section 2.11. Condition of Leased Property . . . . . . . . . . . 40 e (i) v I it 1 F a a H 0 I I TABLE OF CONTENTS PAGE Section 2.12. Roadways and Utilities . . . . . . . . . . . . . . 42 ARTICLE III - CONSTRUCTION OF IMPROVEMENTS Section 3.1. Conformity of Plans. 42 Section 3.2. Preliminary Plans. 43 Section 3.3. Construction Plans . . . . . . . . . . . . . . . . 44 Section 3.4. Facilities to be Constructed . . . . . . . . . . . 46 Section 3.5. Maintenance of Park Site and Leased Property 47 Section 3.6. Access . 47 Section 3.7. ri Construction Peod: 48 Section 3.8. Progress of Construction . . . . . . . . . . . . 48 Section 3.9. Certificate of Final Completion. . . . . . . . . 49 Section 3.10. Connection of Building to Utilities. . . . . . . . 50 Section 3.11. Permits and Approvals. . . . . . . . . . . . . . . 50 Section 3.12. Compliance with Laws . . . . . . . . . . . . . . . 50 Section 3.13: Extension of Time Requirements . . . . . . . . . . 51 Section 3.14. Alterations and Renovations. . . . . . . . . . . . 51 Section 3.35. Art in Public Places . . . . . . . . . . . . . . . 52 ARTICLE IV - LAND USES Section 4.1. Land Uses . . . . . . . . . . . . . . . . . 52 Section 4.2. Character and Operation of Improvements. . . . . . 52 Section 4.3. Miami Grand Prix . . . . . . . . . . . . . . . . . 53 ARTICLE V - ANTI -SPECULATION; ASSIGNMENT Section 5.1. Definitions. . . . . . 53 Section 5.2. Purposes of Restrictions on Transfer . 55 Section 5.3. Transfers . . . . . . . . . . . . . 56 Section 5.4. Notice of Transfer; Information as to Shareholders 57 Section 5.5. Effectuation of Certain Permited Transfers 58 Section 5.6. Transfers of the City's Interests. . . . . . . . . 59 Section 5.7. Subletting . . . . . . . . . . . . . . . . . . . . 60 ARTICLE VI - MORTGAGE FINANCING; RIGHTS OF MORTGAGEE Section 6.1. Leasehold Mortgages. . . . . . . . . . . . . . . . 60 Section 6.2. No Waiver of Developer's Obligations or City's Rights . . . . . . . . . . . . . . . . 70 i n to%3 TABLE OF CONTENTS ARTICLE VII — REMEDIES • Section 7.1. Events of Default - Developer. . a. Failure - Payment of Money : . b. Failure - Performance of Other Covenants, Et c. Section 7.2. Remedies for Developer's Default . : . . . : Section 7.3. Events of Default - City a. Events of Default. b. Remedies for City's Default. . . . . . . . . . Section 7.4. Unavoidable Delay: Section 7.5. Obligations, Rights and Remedies Cumulative. . ARTICLE VIII - PROTECTION AGAINST MECHANICS' LIENS AND OTHER CLAIMS, INDEMNIFICATION Section 8.1. Mechanic's Liens and Payments of Obligations . . . a. Developer to Discharge Mechanics' Liens. . . . b. Payment of Materialmen and Suppliers . Section 8.2. Indemnity of the City . . . . . . . . . . . . . . . ARTICLE IX - INSURANCE Section 9.1. Insurance Coverage . . . . . . . . . . . . . . . . a. Property Insurance . . . . . . . . . . . . . . b. Rental Value Insurance . . . . . . . . . . . . c. Automobile Liability Insurance . . . . . . . . d. Liability Insurance . . . . . . . . . . . . . . e. Copies . . . . . . . . . . . . . . . . . . . . Section 9.2. Responsible Companies - Blanket Insurance Permitted. Ci. . . Section 9.3. Named Insureds - Notice to ty of Cancellation. Section 9.4. City May Procure Insurance if Developer Fails To Do So . . . . . . . . . . . . . . . . . Section 9.5. Insurance Does Not Waive Developer's Obligations . Section 9.6. Loss or Damage Not to Terminate Rental or this Agreement . . . . . . . . . . . . . . . . Section 9.7. Proof of Loss . . . . . . . . . . . . . . . . . . . Section 9.8. Property Insurance Proceeds. . . . . . . . . . . . a. Authorized Payment . . . . . . . . . . . . . . b. Disposition of Insurance Proceeds for Reconstruction . . . . . . . . . . . . . c. Leasehold Mortgages May Have Benefit of Insurance Fund for Reconstruction. . . . . . Section 9.9. Covenant for Commencement and Completion of Reconstruction . . . . . . . . . . . . . . . . Section 9.10. Developer's Rights In the Event of Uninsured Major Casualty . . . . . . . . . . . . . . . . . PAGE 70 71 71 72 72 72 73 73 74 74 74 75 76 76 76 77 78 78 79 79 79 80 80 80 81 81 81 82 82 83 83 rvJ'ta ,■ C.y�. + ' • kY sjdct' ':'r I ;rtt� 71 •k Sys i L:.r7 •4 0 ARTICLE X - CONDEMNATION TABLE OF CONTENTS • Section 10.1. Entire Leased Property Taken by Condemnation . . . 85 Section 10.2. Partial Taking of Leased Property by Condemnation. 86 Section 10.3. Adjustment of Rent Upon Partial Taking . . . . . . 88 Section 10.4. Taking for Temporary Use or of Leasehold Estate. 88 Section 10.5. Arbitration. . . . . . . . . . . . . . . . . . . 89 ARTICLE XI - RIGHTS OF OCCUPANCY AND ACCESS; MAINTENANCE; OWNERSHIP OF IMPROVEMENTS Section 11.1. Quiet Enjoyment. 92 Section 11.2. Waste. . . . : : 92 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 Section 11.7. Non -Compete. . . . . . . . . . . . . . . . . . . . 94 ARTICLE XII - MISCELLANEOUS PROVISIONS Section 12.1. No Partnership or Joint Venture. . . . . . . . . . 95 Section 12.2. Recording, Documentary Stamps. . . . . . . . . . . 95 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. . . 97 b. Developer's Records. 97 c. City Manager . . . . . . . . . . . . . . . . . 97 Section 12.6. Estoppel Certificates . . . . . . . . . . . . . . . 97 Section 12.7. Provisions Not Merged with Deed. . . . . 98 Section 12.8. Titles of Articles and Sections. . . . . 99 Section 12.9. Counterparts . . . . . . . . . . . . . . . . . . . 99 Cection 12.10. Nondisturbance and Attornment. . . . . . . . . . . 99 Section 12.11. Non Discrimination and Equal Opportunity . . . . . 99 Section 12.12. Successors and Assigns . . . . . . . . . . . . . . 101 EXHIBITS Exhibit A -- Site Plan 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 -- Form of Guaranty Exhibit D -- Permitted Encumbrances Uv) TABLE OF CONTENTS I PAGE EXHIBITS (con't.) Exhibit E -- Garage Installment Sale and Operating Agreement Exhibit F -- List of Approved Concept Plans Exhibit G -- Development Schedule Exhibit H -- Non-discrimination/Equal Opportunity Requirements Exhibit I -- Minority Participation Program Exhibit J -- Agreement Between Miami Motor Sports and the City Exhibit K -- Management Agreement with Department of Off -Street Parking Exhibit L -- The Design Development Plans for Restaurant in Area A-4 Exhibit M -- Survey Showing All Easements Located at the Leased Property Known to the Director of Public Works of the City of Miami Exhibit N -- Maintenance Responsibility Plan 604F/22A 0 (v) LEASE AGREEMENT 5/23/84 THIS LEASE AUNT, made this day Of , 1984, by and between BAYSIDE 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 IThe 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 Exhibit A. For the purpose of this Lease Bayfront Park consists of the following parcels: (a) A parcel of land, having a surface area of approximately $_S acres, shown and designated on Exhibit A as "Area A-1"; (b) A_parcel of land, having a surface area of approximately y. 9 acres, shown and designated on Exhibit A as "Area A-2". Within Area A-2 is a parcel of land, having a surface area of approximately acres, shown and designated on Exhibit A as "Garage Parcel"; (c) A parcel of land, having a surface area of approximately_ acres, shown and designated on Exhibit A as "Area A-7 ; (d) A parcel of land, having a surface area of approximately_ Exhibit A "Area A-4"; acres, shown and designated on as (e) A parcel of land, having a surface area of approximately acres, shown and designated on Exhibit A as "Area A-5"; and 'i 0 . (f ) A parcel of land, having a surf ace area of approximateiy acres; shown anNMid-designated on Exhibit A as amarinaN . The City is also the owner, in fee simple, of all that certain land, having a surface area of approximately square feet, located immediately north of Bayfmnt Park and underneath the Port Boulevard Bridge in the City of Miami, County of Dade, State of Florida as shown on Exhibit A. 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 parking for the purpose of this Agreement shall be known as "Area .BN By authority of the City of Miami Charter, the City on _ , 1983 advertised a request for proposals for the unified development project to be known as Bayside Specialty Center for development of a portion of the Bay - front Park, which development would include restaurants, fast-food services, E� retail boutiques, markets and entertainment areas responsive to urban, envi- j® rormental and design factors- inherent to the City waterfront and Bayfront Park. Developer submitted a proposal to develop a mixed -use project ("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, to be located on a portion of Area A-2 adjacent to Biscayne Boulevard ("North Pavilion"). The North Pavilion will include specialty retail shops, a pedestrian street, and cafes and restaurants; (� t�1 (b) A pavilion, containing approximately 82,636 square feet of leasable area on two levels, located on Area A-1 facing North ("South Pavilion"). The South Pavilion will contain fast food markets of ethnic food specialties, restaurants, cafes and specialty retail shops; I -2- (0) A market area, containing approximately 449000 square feet of open plaza and approximately 169000 square feet of leaseable space, located on Area A-1 between the North Pavilion and the South Pavilion ( "Market Square). 1 Market Square shall contain a 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 p pavilion to be located adjacent to Miamarina as shown on Exhibit A ("Pier Park"); (e) Reflections Restaurant, containing approximately 2500M square feet; and r ,}Y (f) Promenades, landscaped areas, viewing pavilions, access roads, pedestrian bridges connecting the North Pavilion, South Pavilion and the Amphitheater, and other related amenities: The City contemplates that the following improvements to Bayfront- Park will be made: (a) Phased replacement of seawalls and rip rap, and construction of a baywalk with infill and water taxi piers in location shown on Exhibit A. Upon completion of construction of the baywalk and infill, such additional surface area shall be added to and incorporated into Bayfront Park; (b) Permanent parking garage containing not less than one thousand• two hundred (1,200) parking spaces on three and one-half levels ("Parking Garage") to be located on the Garage Parcel; and . (c) Certain other improvements agreed to between City and Developer having a value of $41000, 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 - 3 - in the request for proposals advertised by the City and the proposal submitted by Developer, subject to and upon the terms and conditions contained herein. The Statement of Background and Purpose is a description of the current intent of the parties with regard to development and construction of the Project and is intended to be an aid to the understanding of this Lease, but it is not intended to limit the rights or the obligations of the parties except to the extent that it contains definitions and terms which are used elsewhere in this Lease. The square footages and descriptions in this Statement of Background and Purpose are for illustrative purposes only, and as to such matters the approved Construction Plans prepared by the parties shall control. Certain terms defined in the Statement of Background and Purpose are more particularly defined in Section 1.'2, to which reference is hereby made. In consideration of the foregoing and of the rent, covenants, and agreements hereinafter set forth, the parties do hereby covenant and agree as follows: ARTICLE I EXHIBITS AND DEFINITIONS Section 1.1 Exhibits. Attached hereto and forming a part of this Agreement are the following Exhibits: Exhibit A --- Site Plan 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 — Form of Guaranty by the Rouse Company of Columbia, Maryland - 4 - LI� ' Exhibit 0 -- Permitted Encumbrances and Easements Exhibit -- Garage"Agreement Exhibit F -- List of Approved Concept Plans Exhibit G -- Development Schedule z Exhibit H -- Non-discrimination/Equal Opportunity Requirements Exhibit I -- Minority Participation Agreement ;< Exhibit J -- Agreement between Miami Motor Sports and the City Exhibit K -- ManagementgAgreement with Department of Off -Street { Parking Exhibit L -- The design Development Plans for Restaurant in Area A-4 Exhibit M -- Maintenance Responsibility Site Plan Exhibit N — Survey showing all easements _located at the Leased Prooerty known to the D re tor. of Rihiin wn c of the ,City _of Miami Section 1.2 Defined Terms. AS used herein the term: 4: "Acceptable Operator" means an entity possessing the experience, w: +, qualifications, good reputation, financial resources and adequate personnel a 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 paid by Developer under this Lease. "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. "Additional Rent" means any and all payments required of Developer to " the City or the Foundation by the terms of this Lease. "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 "Are._ a A 1", "Area A 2", "Area�A-3_", "Are, a A�-4" and "Ares have .'' the meanings ascribed to them in the Statement of Background and Purpose. '- "Area B" has the meaning ascribed to it in the Statement of Background and Purpose. "Audited Financial Statement" means a Financial Statement certified in accordance with Generally Accepted Accounting Principles and Generally .. , Accepted Auditing Standards as promulgated the American Institute of � by y.i Certified Public Accountants. tj( "Auditor" means Peat, Marwick, Mitchell do Co. or such other nationally j recognized firm of certified public accountants as may be used from time to time by the Developer for the purpose of certifying the annual reports of its 7 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 r: Background and Purpose. " I ,q "Bayside Specialty Center" has the meaning ascribed to it in the { Statement of Background and Purpose. "Capital Improvements" means any addition to the Project or the �Fs construction of any additional portion of the Project or other construction ' a 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 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. • .,fr ,� -6- "Ce� cate_of Final. Completion" has the meaning ascribed to it' in ` k== motion 3.10, "the City" has the meaning ascribed to it in the opening paragraph of this Agreement. it' 'Fzl ' �uy lv� .T 6a a 0 . City Contribution to Infrastructure shall mean Four Million Dollars .� ($4,000,000) to be used for infrastructure improvements to be mutually agreed A' upon between the City and Developer' "City Improvements" has the meaning ascribed to it in Section 2.10. "City Maintenance Area" has the meaning ascribed to it in Section 3.5. f "City Storm Sewer Easement" has the meaning ascribed to it in Section 2.3(a)• y "the City Manager" has the meaning ascribed to it in the opening paragraph of this Agreement. .i "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 -in stations, sidewalks, walkways, roadways, parking and loading areas, and other similar -1 areas, facilities and improvements. ' "Completion Date" means that date when the Project and Developer .� improvements are open for business and eighty percent (80%) of the Leaseable Area is leased and occupied by Subtenants (exclusive of temporary tenants or 4 Y push carts). In the event a Leasehold Mortgagee's requirements provide tot a m. later date of completion, the later date shall be the "Completion Date". "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- t.' t "Cumulative Credit Balance Account" has the meaning ascribed to it its Section 2.5. "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 IMrovements 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 j Mortgage or Sale-Subleaseback Transaction but for such foreclosure, deed in lieu of foreclosure or lease termination. "Default Rate" has the meaning ascribed to it in subllause (b) 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, equal to the aggregate of all costs and expenses actually incurred by Developer for the purpose of and .. properly allocated to the initial development and construction of the Developer Improvements in the Leased Property (together with any and all -a- 11L Al r k�S improvements to be designated or made by Developer on behalf of the City in areas adjacent to the Leased Property), including (without limitation or duplication)6. (1) Design, planning, architectural and engineering fees, costs and expenses; and presentation costs and expenses; and presentation costs and expenses; (2) The cost of labor, equipment paid to contractors and subcontractors; (3) Fees and expenses paid to contractors and subcontractors; (4) Legal and accounting costs, fees and expenses; (5) Interest, commitment fees, points and other financing costs incurred in the arm's length transactions, and interest on money borrowed by Developer from its parent 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 permits and licenses, and all Public Charges; (8) Utility relocation costs and expenses and tap —in fee or other fee for connection to utility systems and utility services during construction; (9) A11 costs and expenses incurred in connection with the' negotiations and execution of this Lease; (10) The cost of initially furnishing and equipping management and promotion offices in the Improvements; (11) The cost of providing, furnishing, equipping and operating a field office at or near the Leased Property to or during construction of the Improvements, including (without limitation) the costs of construction trailers. or other temporary office structures, barges and other vessels, automobiles, office furniture, equipment, supplies, telephone, stationery, postage and duplication; it (12) The salaries, fringe benefits, payroll taxes, travel and moving expenses, and other costs of employment at such field office of U) managers and promotion directors (but only to the extent incurred prior to the Opening Date), and Ui) tenant coordinators, project accounts', secretaries, clerks and similar office personnel; (13) The cost of subleasing the improvements for their initial occupancy, including (without Limitation) advertising costs and the fees, commissions and expenses paid to leasing agents or brokers; (14) The cost of pre -opening management, advertising and _j publicity and the cost of any opening event or celebration including advertising and publicity of same; (15) The cost of The Rouse Company or any affiliate related thereto to such extent such costs areArecggnized as Development Costs by the Lender of construction financing for all or part of the Developer Improvements; (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 sum of (i) Development Cost, (ii) an amount equal from time to time to any unrecouped and unfinanced cost of Capital Improvements made and paid for by Developer after initial construction of the Developer Improvements, and (iii) operating losses incurred by Developer (except to the extent credited to the Cumulative Credit Le Balance Account pursuant to the terms hereof) less theinet proceeds actually received by Developer from any and all Leasehold Mortgages or all 10- Sale-Subleaseback Transactions of Developer's estate in the Leased Property and Developer Improvements. '-" — "Developer Improvements" has the meaning ascribed to it in Section 3.4. "Developer Maintenance- Area" has t:e meaning ascribed to it in Section 3.5: "Developer Utility Easement" nas 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. "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 Is 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 azm'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. "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". i ;c I f— s 0 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 tte meaning ascribed to it in Section 3.5; "Developer Utility Easement" nas 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 Ui) 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. "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 Is 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. "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". - 11 - s 0 "Foundation" has the meaning ascribed to it in Section 12.11'. "Garage"Agreement" has the meaning ascribed to it in subclause (iii) of Section 2.9 (b) "Garage Parcel" has the meaning ascribed to it in the Statement of Background and Purpose. k9 IA "Improvements" shall mean all existing aM future structures at the Leased Property. "Institutional Investor" has the meaning ascribed to it in subclause i (b) of Section 6.1. "Institutional Lender" means a commercial bank, trust company, mutual savings bank, savings and loan association, insurance company, pension trust fund, college or university endowment fund, mortgage or real estate investment j iJr! trust or other financial institution commonly known as an "institutional -; lender". "Insurance Trustee" has the meaning ascribed to it in Section 9.8(a). yY "Leaseable Area" means the aggregate of the actual number of square ;e! _ 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 N� 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. s� "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. 4 "Lender/Landlord" means a lender, and any successor, assignee, transferee or designee of such lender, to which, in connection with the JJJ ni 12 UA U IL I 7 1 ,I 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 Sguarie" has the meaning ascribed to it in the Statement of Background and Purpose; "Management Costs" means Developer's costs of performing management services for the Leased Property, which services shall include the following: (i) supervision of the performance of all of Developer's obligations in accordance with the standards of operation and maintenance applicable to a high quality retail development, including without limitation supervision of heating, ventilating; air-conditioning and maintenance of the Leased Property and the maintenance of all Common Area, and all security systems and retail management personnel; (ii) enforcement of all Subleases (including collection of minimum and percentage rents, collection of other charges such as common area maintenance and heating, ventilating and air-conditioning charges, and supervision of the performance of all obligation under Subleases), termination. and modification of existing Subleases when required, renewal of sucn 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 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. "North Pavilion" has the meaning ascribed to it in the Statement of Background and Purpose. "On -Site Management Costs" means that portion of Management Costs described in clause (viii) of the definition of the term "Management Costs". -14- I MI M■ "Opening _ Date" means the earlier of (1) that date upon which Subtenants occupying eighty (SM) percent of the Leaseable Area (exclusive of for business the temporary tenants or pushcarts) are open and operating with general public in the _Lead 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 any of the facilities situated outside structures located on the Leases Property, or the cost of providing, maintaining, jrepairing 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. d "Operating Expenses" means (without duplication) (1) all reasonable and normal expenditures for a Waterfront Specialty Center accounted for by the accrual method made by the Developer accounted for or which the Developer is obligated, to make in the operation, ownership or management of the Leased Property (excluding the Parking Garage) 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 maintaining expenses, costs and expenses of cleaning, maintaining and repairing the Common Area and Leased Property, utility charges, insurance - 15 - premiums, auditing and professional tees 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 Imam for Management a ement Costs (exclusive of On -Site Management Costs), (4) Annual Basic Minimum Rent and (5) Area A-5 Minimum Rental. In no event shall depreciation constitute a portion of Operating Expenses. "Operatina 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 Parking Ga;a°=, the Improvements (other ,excluding than funds received as the capital contributions, insurance or condemnation proceeds, or the proceeds of loans, financings or sale of property), including (without limitation) all such operating revenues, Operating Contributions and other payments received from Subtenants and all income from vending machines, telephones, pay toilets and other sources located in the Leased Property or the Improvements. Prepaid rents, prepaid payments and security deposits shall not be included in Operating Income until earned, applied or forefeited. If Developer shall receive insurance g; condemnation proceeds ,fir ate, the amount thereof which -represents reimbursement to Developer for itemsvaacccounted for as Operating Expenses shall be deemed to be Operating Income. "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. "Pa_ Site" means the area comprising the Bayfront Park but excluding the Leased Property, all as shown on Exhibit A. - 16 - L" i I F JI' I "Parkinc-Garage" has the meaning ascribed to it in the Statement of Background and Purpose. "Parking Garage Air Rights" meant the airspace located directly above the Parkinp-Garace. "Pier Park" has the meaning ascribed to it in the Statement of Background and Purpose: "Possession Date" has the meaning ascribed to it in Section 2.1. "Project" has the meaning ascribed to it in 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 90'8. "Renewal Term" has the meaning ascribed to it in clause (d) 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. "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 �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 — 17 — vi-� _ t w �3i�. 4 M `''' last full Rental Year shall constitute the final Rental Year and Rental shall be apportioned therefor: t es "R has the "Restaurant,_Facilities" es Ra meaningascribed to it in Section l I i i I I t' _ f y "Restaurant Lease" has the meaning ascribed to it in Section 2.11. - 17a - 1 "Restaurant Parcel" has the meaning ascribed to it in Section 2.12. "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. a! IL "Section". "subsection", "paragraph", "subparagraph", "clause", or "subclause" followed by a number or letter means the section, subsection, paragraph, subparagraph; clause or subclause of this Agreement so designated. • "South Pavilion" has the meaning ascribed to it in the Statement of Background and Purpose: "Sublease" means any lease, sublease, license or other agreement by which Developer or any person or other entity claiming under Developer (including, without limitation, a subtenant or *sublicensee) demises, leases, subleases, licenses or sublicenses to or permits the use or occupancy by another person or entity of any part of the Leased Property and Improvements. i "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. "Transfer" has the meaning ascribed to it in Section 5.1. j "UDAG has the meaning ascribed to it in subclause (e) Section 2.1. fi "Waterfront Specialty Center" means a retail complex situate on a major body of water having a wide variety of specialty retail and restaurant j establishments. 1 t` i { - A ARTICLE 11 GENERAL TERMS OF LEASE OF LEASED PRO MTY G= °: 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 . y- obligations on the part of each to be performed hereunder: l 1 j� j i t 18a - Pam. The City leases to Oevel.opez, and (a) demises and Developer takes and hires from the City, all of the Area described as Area A-1, Area A-2, portions of Area A-30 Area A-49 Area A-5, and Area B as shown on Exhibit A and more particularly described in the legal descriptions attached hereto as Exhibits B-1, B-29 B-3 and B-4 together with the buildings, j structures, Improvements and equipment thereon and together with and subject to the restrictions, conditions, covenants and easements hereinafter mentioned, reserved or granted .(the "Leased Property"). The City and Developer recognize that the boundaries of the Leased Property may require minor adjustments to accommodate the Improvements contemplated pursuant to the Construction Plans. Should the parties agree a modification is required, Exhibit B-1 to this Lease shall be amended accordingly. City shall have the right, but not the obligation, to construct the proposed light tower on Area A-5_ Within one (1) year from the Completion Date, Developer shall notify the City Manager whether or not Developer intends to construct the proposed improvement on Area A-4 and/or to occupy the proposed light tower to be constructed by the City on Area A-5. If, within i Y 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 4 decided to construct -the improvements on Area A-5, this Lease shall terminate as to such Area and same shall be deemed to be included in the Park Site. If � Developer elects to construct improvements on Area A-4, such improvements must be substantially in accordance with the design development plans approved'by the City Commission and made a part of this Agreement as Exhibit L. New structures shall be limited to a maximum height not to exceed r 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 1 !i of 200,000 square feet of Leaseable Area of .New Construction plus a bonus of .. 711:1 42,000 square feet of Leaseable Area of new construction to which the Developer shall be entitled upon demolition of the existing Sayfront Municipal Auditorium. The proposed structures within Area A-3 shall not exceed a land area of 2.06 acres. (b) Original Term: To have anu to hold the Leased Property for a term of forty-five (45) years; commencing on the first day of the month next following the Possession Date: Within thirty (30) days after the Possession Date, the City Manager and Developer; upon request of either party, shall execute one or more written memoranda in such form as will enable them to be recorded among the Land Records of Dade County setting forth the beginning and termination dates of the Original Term, determined in accordance with this Agreement. (c) Renewal Term. Developer is granted an option to renew this Lease from time to time upon the same terms and conditions, except as otherwise• expressly provided, for up to two (2) additional terms (each called a "Renewal Term") of fifteen (15) years each, commencing at the expiration of the Original 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. -20- ... "p" i:, (d) Possession cyf, leased Property_• The rr•n..��r—r 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; (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 in 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_ Str Developer may, at its option, self -finance all or a portion of the Developer Improvements; (iii) The City Manager shall have received a guaranty in form attached hereto as Exhibit C 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; and (iv) All governmental permits and approvals required to commence construction shall have been obtained by Developer. 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". - 21 - a�'µ��� �� y, S, �} t� --, �r`+t7 -i ,� 7 �{ �' — )!j� t� t 5 �: it! il' 'I �� (e) Conditions Precedent. Developer shall not be obligated to take possession at 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 has approved all of the Construction Plans for the City and Developer Lnprovements; (ii) Developer has obtained all governmental approvals and permits necessary for construction of the Developer Improvements; (i3.i) 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, trap Institutional Investors or Lender/Landords for construction and long term financing of the Developer Improvements. Developer must approve such financing if same is on terms prevailing in the then current market place in the United States; (v) the City has entered into a Grant Agreement with the U.S. Department of Housing and Urban Development for an Urban Development Action Grant ("UDAG") in the amount of at least Dollars ($ ), on terms and in a form satisfactory to Developer; and (vi) the City has obtained a firm commitment from an Institutional Lender acceptable to Developer to purchase the tax exempt revenue bonds or notes to be issued and sold by the City on terms and in a form satisfactory to Developer for construction of the Parking Garage. Developer shall use good faith efforts to satisfy all of the aforesaid cor�itions 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 -22- T Hundred Fifty thousand Dollars ($250,000) as liquidated damages for such termination of*.this Lease provided that the City Manager establishes that Developer did not negotiate in good faith for such financing. There shall be no damages payable to the City if the Developer shall be unable to obtain acceptable financing after a good faith effort with respect to same. M 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 or (as the case may be) throughout the entire term of this Lease, including L: any Renewal Term and any new lease executed pursuant to the provisions of { Sections 6.1 and 6.2. The parties recognize, .however, that the development and operation of the Leased Property, the Developer Improvements and the City Improvements in a manner which is in the best interests of both parties may from time to time require the confirmation, clarification, amplification, or - 23 - r, h 11 TI I TI btl i, 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'cf 'the Leased Property: The Leased Property hereby demised shall not be used for the following: (i) Permanent or temporary housing or sleeping quarters. (ii) Coinbox entertainment. (pinball, video games, moving pictures). (iii) Games of chance or reward. (iv) Any unlawful or illegal business, use or purpose, or for any business, use or purpose which is immoral or disreputable (including without limitation "adult entertainment establishments" and "adult" bookstores) or extra -hazardous, or in such manner as to constitute a nuisance of any kind (public or private), or for any purpose or in any way in violation of the certificates of occupancy (or . other similar approvals of applicable governmental authorities). (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 -2a- effect from time to time,prohibiting discrimination or segregation reason p g grog by of race, color; religion, sex, or national origin in the sale, lease or occupancy of the Leased Property' (c) Permitted Uses for Leased Property. The only uses permitted on " the Leased Property are retail, recreation$ parking and office (provided that �! such office uses shall be limited to management offices and other office uses commonly found in retail centers). For the purpose of this Lease "retail" shall mean sale of any and all commodities or services to the consumer, including (without limitation) restaurants, facilities for the sale of food or beverages, merchandise, and services customarily found in urban retail centers similar to the Project. (d) Use Prohibitions of 'the Park Site. The parties acknowledge and agree that the Leased Property is surrounded by the Park Site and that, consequently, the manner in which the Park Site is or may be used from time to time will have a direct and material affect on the use and value of the Leased ' Property and the Improvements. In consideration of the foregoing and of the rentals reserved by it under this Lease, the City, as the owner of the Park Site, for itself, its successors and assigns, covenants and agrees with Developer, its successors and assigns that: (i) Except as may be otherwise permitted pursuant to the Management Agreement dated June 4, 1981 between the City and New World Marinas Inc. with respect to the Miamarina, the City will not permit any :i use of the Miamarina, the baywalk or the docks on the Park Site which would detract from the use of the Leased Property or which would � materially obstruct the view of Biscayne Bay f rom the Leased Property, ' including (without limitation) any such use by vessels using the docks or rl the Miamarina. -25- effect from time to time, prohibiting discrimination or segregation by reason of race, color; religion, sex, or national origin in the sale, lease or 1 occupancy of the Leased Property: r. (c) Permitted Uses for Leased Property. 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" �i shall mean sale of any and all commodities or services to the consumer, • including (without limitation) restaurants, facilities for the sale of food or beverages; merchandise; and services customarily found in urban retail centers similar to the Project: (d) Use Prohibitions of 'the Park Site. The parties acknowledge and T agree that the Leased Property is surrounded by the Park Site and that, consequently, the manner in which the Park Site is or may be used from time to time will have a direct and material affect on the use and value of the Leased Property and the Improvements. In consideration of the foregoing and of the rentals reserved by it under this Lease, the City, as the owner of the Park Site, for itself, its successors and assigns, covenants and agrees with Developer, its successors and assigns that: ,, w (i) Except as may be otherwise permitted pursuant to the . r i 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 Ai 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 �T the Miamarina. -25- s affect from time to time, prohibiting discrimination or segregation by reason :J vc of race, color; religion, sex, or national origin in the sale, lease or ' occupancy of the Leased Property'. (c) Permitted Uses for Leased Property. The only uses permitted on the Leased Property are retail; recreation; parking and office (provided that ` h ffi hall be limited to mans ement offices and other office uses 4 suc o ce use s g commonly found in retail centers). For the purpose of this Lease "retail" shall mean sale of any and all commodities or services to the consumer, �. including (without limitation) restaurants, facilities for the sale of food or beverages, merchandise; and services customarily found in urban retail centers similar to the Project: S (d) Use Prohibitions of 'the Park Site. The parties acknowledge and ` agree that the Leased Property is surrounded by the Park Site and that, consequently, the manner in which the Park Site is or may be used from time to jitime 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 7Developer, its successors and assigns that: ' (i) Except as may be otherwise permitted pursuant to the Management Agreement dated June 4, 1981 between the City and New World } Marinas Inc. with respect to the Miamarina, the City will not permit any use of the Miamarina, the baywalk or the docks on the Park Site which ,LL i r� would detract from the use of the Leased Property or which would materially obstruct the view of Biscayne Bay from the Leased Property, including (without limitation) any such use by vessels using the docks or :+ i the Miamarina. 7,. -25- (ii) ''he City will not, without first obtaining the written "r 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; -The City will not sell the Park Site except to a party who shall agree to expressly assume the City's obligations under this 9 Y Agreement and who shall have the authority to assume and perform the same as provided for under Section 5.7; (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 ,1 with, respect to same pursuant to Section 2:1(a), the Park Site will, during the term of this Lease and any renewals hereof, be open to the general public and shall be devoted only to public park uses; and (v) The City will coordinate its ongoing planning and = implementation efforts relating to the construction of improvements to and the use of the Park Site and Areas A-4 and A-5 with Developer (including, !' without limitation, the staging of promotional events and entertainment activities and construction activities) so�that the making of improvements t' 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 '1 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 "}R ( shall be for the benefit and in favor' of, and enforceable by, the City and - 26 - Developer respectively, as the case may be; provided, however; that such covenants shall be binding on Developer, and the City, and their respective successors in -interest and assigns, only for such period as each respectively shall have title to the Leased Property, the Park Site or any part of either. Section 2.3 Easements. The following easements presently exists _ 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 hereto; (fi) the 20 foot storm sewer easement'' more particularly shown ''on and designated as the "City Storm Sewer Easement Exhibit "A" hereto; (in) such other easements as are described on Exhibit D. (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 '" locationshown therefore n the approved Construction Plans or in such o pp Tother locations as may be approved by the City Manager from time to time; (ii) the non --exclusive right and easement (the "Developer i' Vehicular Access Easement") for the unobstructed access to and from the I Leased Property by service and emergency vehicles over and across the Park I` Site, in the location shown therefore on the approved Construction Plans i I' I or such other locations as may be approved by the City Manager from time to time; _ I -27- (iii) the non-exclusive right to use the following areas in common with the public, subject to the City's right to restrict areas in the Park Site for reasonable periods during special eventst including (without limitation) the Miami Grand Prix; 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 cinder 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; and V' (vii) non-exclusive rights and easements for installation, 'I maintenance, repair and replacement of utility facilities and for pedestrian and vehicular access to and from Area A-4 and/or Area A-5 over and across the Park Site to the Leased Property and to Biscayne Boulevard, at such locations as may be approved by the City Manager f rom time to time. A -28- .. (vi3.i) 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 Ft Authority, except that Developer may place or construct street furniture, �! kiosks, or other removable structures in any such area on the leased Property, provided Developer shall promptly remove the same, at its expense, upon the City's or appropriate utility's request in order to permit the City or utility to perform maintenance services on the utility lines in the easement area, provided that in the design and construction of the Developer Improvements, Developer will use its diligent efforts to cluster underground utility lines and to minimize other construction below the surface of the easement area; (2) With respect to the portion of the City Storm Sewer Easement area which may lie directly beneath the Developer Improvements, the City T? and Developer agree 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 r� and enjoyment of that portion of the Developer Improvements affected thereby within days of the date hereof. - 29 - y.= E 13 (3) the party having the benefit of any such easement (A) shall carry on any construction, maintenance and repair activity with diligence and dispatch and shall, use its diligent efforts to complete the F same in the shortest time possible under the circumstances, and (8) shall not carry on any construction, maintenance or repair activity in the easement area in such manner as to unreasonably interfere with the use and enjoyment of the servient tenement, and, except in the case of the County Easement, in carrying on such activities, will do so in such a manner as not to unreasonably interfere with business or businesses then being conducted in the Improvements or on the Leased Pr operty 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 p (4) except in the event of emergency, the party having the benefit of such easement shall not carry on any construction, replacement, maintenance of repair activity at any time in such easement area unless 1' 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 County Easement the City will use diligent efforts to obtain the consent of the Dade County Water and Sewer Authority T to such notice requirements; j' (5) promptly upon the completion of any such construction,. repair or maintenance activity, the party having the benefit of such Teasement shall, at its expense, restore the surface of the easement area as nearly as possible to its former condition and appearance; (6) Developer and City agree to enter into an easement agreement governing the use, maintenance, repair and replacement of the ,. 'w City Storm Sewer Easement, and any other utility easement area which may be located under the Improvements within sixty (60) days from the date of this Lease in order to provide the Developer with sufficient assurances the use and enjoyment of that portion of the improvements affected thereby; and (7) with respect to the Developer Vehicular Access Easement, the City may from time to time, erect signs, temporary barriers or other reasonable traffic controls designed to limit the use of the easement areas to service and emergency vehicles. Annexed hereto as Exhibit N is a survey showing all easements affecting the �! ii Leased Property known to the Director of Public Works of the City of Miami. (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 r l - their location as such requesting party shall deem to be necessary or desirable. The City Manager is hereby authorized and empowerea on behalf of I 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 144 - 31 - 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 0. - 31a - I x I T T g Section 2.5 Rental. (a) Rentals Payable. Developer covenants and agrees to pay the City as rental ("Rental") for the Leased Property, the following: e (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: FU.L RENTAL YEARS MINIMUM BASE RENTAL 1-2 $ 325,000 3-6 $ 650,000 7-35 $190009000 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 Ethe Developer` in an account known as the "Cumulative Credit Balance Account" which credit shall accrue interest at eleven (11%) percent, compounded annually. The maximum amount to be credited to the Cumulative Credit Balance Account in any Rental Year shall be no greater than the Minimum Base Rental for that Rental Year. In any subsequent Rental Year for which a credit balance exists in the Cumulative Credit Balance Account, the Rental due to the City, shall be reduced, to not less than that Rental Year's Minimum Base Rental, by an amount applied Afram the remaining credit balance in the Cumulative Credit Balance Account. This procedure shall continue eachARental Year until the credit balance in the Cumulative Credit Balance Account is reduced to zero. Further, the Minimum Base Rental�y, at the City's optionbe increased at the beginning of the thirty sixth (36th) - 32 - z- Rental Year to an amount equal to the average Of the Annual Basic paid during the preceding three (3) Rental Years. t, � i �Y. i": ' 't4 t_ r r - 32a - • �r (ii) During each Renewal Term, an annual sum equal to the greater of: 18 A5; L (1) The average of the Annual $eae Rental paid during the �! three (3) consecutive Rental Years prior to the end of the Original Term or the preceding Renewal Term, as the case may be and shall, at the Citv's optionbe 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 One Million and No/100th {� Dollars ($1,000,000.00). (iii) Developer shall pay during the Initial 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 upon occupancy of Area A-5 pursuant to Section 2.1 hereof. (iv) 'The word Rental shall be deemed to -include additional Trentals. (b) Continuous Operation. Developer covenants and agrees to r continuously operate the Project consistent with prudent business practices LQ__ j' and the standards of operation set forth in Section 4.2 (considering twelve j' (12) monthlL use) in order to achieve a reasonable level of profitability. ` (c) Parking Garage Delay. The City and Developer shall use their reasonable efforts to cause the Completion Date to occur ang to open the Developer Improvements for normal business to the public on or before October re� r 31, 1986; provided, however, if Developer shall open the Project toytiie public for normal businesl, notwithstanding the fact that the construction of the T Parking Garage is not completed and open for business with the general public -33- pursuant to Schedule G, which time of completion is subject to Unavoidable Delays, then all Rental shall abate until such time as the Parking Garage is complete and open for business whK the general public. k ■�y' (d) Payment of Rental. Annual Basic Rental shall commence to accrue � f1 1 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 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 rpursuant to the provisions of Section 12.5. Any late payment shall r automatically accrue interest at a rate equal to two (2) percent above that j rate charged by the Citibank, N.A., of New York to its best commercial i customers, generally referred to as its prime rate ("Default Rate") from the date that payment was due. Any overpayment of Annual Basic Rental at the end of each Rental Year shall be paid to Developer within thirty (30) days of receipt of such report or, at the option of Developer, the Developer shall credit such amount to the Rental due in the next Rental Year. If there is an r 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. 14 - 34 - •' t•:yt-k'•h ' (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 12.59 auditable original or duplicate F 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 r Rental theretofore* paid, the City shall promptly return the excess to the 6 Developer. ■ Developer further covenants and agrees to deliver to the City commencing as of the Rent Commencement Date within forty-five (45) days after 1 the close of each calendar quarter and after the termination of the Lease, a j' 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 r calendar quarter. The quarterly statement shall be signed and verified by *an appropriate, authorized officer or General Partner of Developer stating r 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 - 35 - ' presents fairly the Rental due with respect to the preceding calendar quarter. If Developer shall fail to deliver the foregoing statement to the f 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. r i.l Developer shall promptly pay to the City, as Additional Rent, 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 e subject to the audit provisions of the previous subparagraph. r (f) Pre -Construction Contributions. On the Possession Date Developer shall pay to the City Three Million Six Hundred Fifty Thousand r($3,650,000) Dollars as Additional Rent, which amount shall be recognized as a part of the Development Costs. These payments shall be retained by the City r LCI ` if this Lease is terminated by reason of an Event of Developer Defaults Said �^ i 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. - 36 - 9 $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 r City, which shall be delivered on the date hereof and shall provide that the City may present same for payment within thirty (30) days next succeeding the Possession Date . utilized by the City in the construction of improvements in 6ayfront Park. $2.65 Million To be maid to the City withiny f if teen (15) days after request therefor by the City provided that such request is made no earlier than forty-five (45) days prior to the Possession Date and to be utilized by the City in acquiring all of the rights, title and interest to the Lease Agreement between the City which may exist in favor of the Restaurant Lease tenant and Restaurant Associates Industries as assigned to Miamarina Associates for the Miamarina t Restaurant. The Developer shall not be obligated to deliver such letter of credit or make such payment if the City shall not have budgeted and encumbered the amount of Four Million and No/100ths Dollars ($4,000,000.00) by Resolution the City Commission, authorizing the City Manager to pay such monies in fulfillment of this Agreement, and encumbered in the City's account v or accounts, which monies shall constitute the City's Contribution to -37- s infrastructure. Such funds shall be disbursed to Developer as constriction of such infrastructure progresses pursuant to a mutually acceptable disbursement f procedure. 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 -37a- n R tl I I V 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 Inprovements. Such evidence shall include (without limitation) copies a. all executed documents relating to such terminations and a title report prepared at Developer's cost, indicating any such interests or restrictions no longer exist. Section 2.6 Covenants for Payment of Public Chartres 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, public assessments and other public charges including but not limited to electric, water and sewer rents, rates and charges (all such taxes, public assessments and other public charges being hereinafter referred to as "Public Charges") levied, assessed 'or imposed by any public authority against the Leased Property, including all improvements thereon in the same manner and to the same extent as if the same, together with all improvements thereon, were owned in fee simple by Developer; provided, that Developer's obligation to pay and discharge Public Charges levied, assessed or imposed against or with respect to Leased Property shall not commence until the Possession Date. Notwithstanding the provisions of this Section 2.6, Developer shall have the right to contest the amount or validity, in whole or in part, of any Public Charges by appropriate proceedings. The City agrees to consent to and/or f formally join in any such proceedings to the extent it may be allowed by law, I 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 -38- s. 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 ff: rop y or the Improvements, valorem real property taxes) against the Leased Property with respect to the construction, operation, repair and maintenance of any improvements the City is obligated :o construct pursuant to this Lease or any E special assessment or other Public Charges of the City Is Contributions for Infrastructure or repayment of LIDAG. The City retains all its rights to t' impose special assessments or other public charges for all other purposes. Developer, upon written request, shall furnish or cause to be t 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 unreasonable withheld or delayed. Section 2.8 Security and Police Protection. Developer shall have the responsibility for providing all security and protection for the Aevelooer Y— Maintained Area on Exhibit M. Developer and City may enter into an agreement L� requiring the City to provide such security and protection within v the ADevelooer Maintenance Area on Exhibit M. v If the City and Developer are unable to enter into such agreement, the Developer shall be responsible for providing c.e. security and protection throughout theyDevelener Maintenance Area. —39— The City shall provide the same security and police protection for the Park Site City Maintenance -Area as is afforded all other City open ,and.the 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. I It Section 2.9 Parkins Availability. The parties recognize that the i availability during the term of this Lease of approximately 1200 public s J off-street parking spaces on the Leased Property is in the best interests of a both parties to this Lease. In order to assure Developer of such availibility, the City has entered into certain agreements or will enter into certain x! agreements setting forth the definitive obligations of the City and Developer as to construction and maintenance and management of the Parking Garage. Section 2.10 City Improvements. The City shall provide the following improvements to Bayfront Park and the Leased Property as more particularly described in the City's Construction Plans which are referred to j1 throughout this Lease as "City Improvements": .� (a) Phased replacement of seawalls and riprap construction of a bay walk with infill and water taxi piers adjacent to the Leased Property; (b) Parking Garage; (c) Certain improvements to be agreed upon by Developer and the City with the value of $4,000,000 which is the City Contribution for Infrastructure, such improvements to be provided either in kind or, at the City's option, in the form of a cash contribution to Developer. Section 2.11 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 r ';1 — 40 — maintained by the City and delivered to Developer in good serviceable coalition, ordihary 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) 'I +•� 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 w ;j that portion of Area A-1 ("Restaurant Parcel") leased under a lease agreement .e dated May 5, 1970 by and between the City and Restaurant Associates ` Industries, Inc. ("Restaurant Lease"), which is shown on Exhibit A. 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 2, ninety (90) days from date of such damage or destruction or from the Possession Date, as the case may be, U) immediately repair and restore the Restaurant Facilities, or Ui) immediately assign to Developer all of the City's right, title and interest in any payment, proceeding or award by any ' insurance company or other person on account of the damage or destruction. If the insurance proceeds either available to the City or Developer are inadequate to complete the repairs and restoration of the Restaurant Facilities, the City or the Developer, as the.. -case may be, shall repair or restore to a size smaller than that existing prior to such damage and 1 destruction based upon plans and specifications approved by the City, which approval shall not be unreasonably withheld or delayed if such reconstructed - 41 - e■■�w f. •~by3 maintained by the City and delivered to Developer in good serviceable condition, ordihary 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. 1 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 w that portion of Area A-1 ("Restaurant Parcel") leased under a lease agreement dated May 51 1970 by and between the City and Restaurant Associates '1 ` Industries, Inc. ("Restaurant Lease"), which is shown on Exhibit A. 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 �s insurance company or other person on account of the damage or destruction. If the insurance proceeds either available to the City or Developer are inadequate to complete the repairs and restoration of the Restaurant }; Facilities, the City or the Developer, as the:case may be, shall repair or restore to a size smaller than that existing prior to such damage and .1! destruction based upon plans and specifications approved by the City, which approval shall not be unreasonably withheld or delayed if such reconstructed - 41 - lit improvements harmonize with the .architectural motif of the Developer Improvements and meet all other governmental approvals required. 1 Section 2.12 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 fix• 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 r# 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 2.12 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. ARTICLE III 1 CONSTRUCTION OF IMPROVEMENTS Section 3.1 Conformity of Plans. Preliminary Plans and Construction Plans and all work by Developer with respect to the Leased ' Property and the construction of Developer Improvements thereon shall be 'in conformity with this Agreement, the Miami Charter and Code, the South Florida r Building Code, and all other applicable state, county and local laws and y? regulations. 42 - 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 ,k F, the concept plans (the "Concept Plans") for the constriction 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 .PO in stages for approval. No permits or other formal governmental approvals shall be issued 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. The Preliminary Plans for all stages of the Develrper 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 thirty (30) days after such receipt), give Developer notice of its approval or disapproval settirg forth in detail r its reasons for any disapproval. The City Manager's right to disapprove the 0 Preliminary Plans submitted shall be limited to matters depicted in the Preliminary Plans for Developer Improvements which • do not conform +I substantially to the Concept Plans or previously approved Preliminary Plans for other stages of the Project or are new elements not presented in the r Concept Plans, or matters which are violations of this Lease or of applicable F governmental ordinances; codes, plans, laws or regulations. If no response from the City is delivered to Developer within thirty 0 days after the submission of such Preliminary Plans' or an resubmission (3) Y 1'Y � Y thereof as hereinafter provided, they shall be deemed approved, except that no violations of applicable governmental ordinances, codes, plans, laws, regulations or of this Agreement shall be deemed waived thereby. In the event ? of a disapproval, Developer shall, within sixty (60) days after the date I it Developer receives the notice of such disapproval, resubmit such Preliminary' Plans to the City Manager, altered to meet the grounds of disapproval. Any resubmission shall be subject to review and approval by the City Manager, in accordance with the procedure hereinabove provided for an original submission, until the same shall be approved by the City Manager, provided that in any ' event Developer shall submit all Preliminary Plans for the construction of Developer Improvements which meet all of the grounds for disapproval of which the City Manager has given notice not later than the first anniversary of the date of this Lease. City and Developer shall in good faith attempt to resolve • any disputes concerning the Preliminary Plans. Section 3.3 Construction Plans. For the purpose of this Lease, "Construction Plans" shall consist of final working drawings and' - specifications including (without limitation) the following information: (a) definitive architectural drawings; (b) definitive foundation and structuial +1 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 specifications; but excluding drawings and specifications - 44 Owi Yf- relating to subtenant improvements. Not later than one hundred twenty UW) days after approval of Preliminary Plans for a particular stage of construction, Developer shall submit to the City Manager two sets of 9 Construction Plans for the same stage. Upon receipt thereof, the City Manager shall review the same and shall promptly (but in any event within thirty (30) a; 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 Ro l for other stages or are new elements not presented in the approved Preliminary 1 Plans or are violations of this Lease or of governmental ordinances, codes, ,1 plans or regulations. If no response from the City is delivered to Developer within thirty (30) days after the submission of such Construction Plans, or any resubmission thereof as hereinafter provided, they shall be deemed approved, roved except that no violations of applicable laws, ordinances, codes, �• regulations or of this Agreement shall be deemed waived thereby. In the event of a disapproval, Developer shall, within sixty (60) days after the date Developer received the notice of such disapproval, resubmit the Construction Plans for that stage to the City Manager, altered to meet the grounds of disapproval. Any resubmission shall be subject to review and approval by the City Manager, in accordance with the procedure hereinabove provided for an original submission, until the same shall be approved by the City Manager, provided, that in any event Developer shall submit all Construction Plans for the construction 'of Developer Improvements which meet all of the grounds for disapproval of which the City Manager has given notice not later than fi months after approval of all of the Preliminary Plans. The City and the -45- in faith to any disputes regarding Developer shall good attempt resolve .the Construction Plans. No approval the City Manager of a Construction Plans F by tY 9 any 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 aepartment of the City or any other governmental authority having jurisdiction �1 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 i 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 ,1 laws, codes or other applicable regulations, and no such approval shall impose any liability on or waive any rights of the City. ` Developer agrees that it shall provide the City with copies of all plans and specifications used in the construction of the Developer Improvements. Developer agrees to use its diligent efforts to obtain the t 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. t- Section 3.4 Facilities to be Constructed. Except for the City r Contribution to Infrastructure and the City's obligation to finance and construct City Improvements, Developer agrees to erect the Project on the Leased Property, at its sole cost and expense, containing the facilities more JI 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". 7 -46- 4 Section 3.5 Maintenance of Park Site and,,Leased _Property The S. M1g 1: City, without cost or expense to Developer or public assessments against the L Leased Property or the Improvements, at all times during the term of this Lease, (including any Renewal Term and any new lease executed pursuant to the ir 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 �I "Developer Maintenance Area" on Exhibit M all of the property and improvements le (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 M. The Developer, without cost or expense to the City, at all times during the term of this Lease, (including any Renewal Term and any new lease executed pursuant to the provisions of Sections 6.1 and 6.2) shall maintain and keep or cause to be maintained and kept in good order, repair and appearance all of the property and improvements located in that portion of the Leased Property shown and designated as Developer Maintenance Area on Exhibit M. Section 3.5 Access. Prior to delivery of possession of the Leased Property or any part thereof to Developer, the City shall permit Developer access thereto whenever and to the extent necessary to carry out the provisions of this Agreement. The City shall also permit, including (without limitation) the placement of construction trailers and staging area on or adjacent to the 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 - 47 - MN 23 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 commence construction of the City Improvements and shall complete the same substantially in accordance with the City's approved Construction Plans in accordance with Exhibit G. At the request of either party, the parties will execute and deliver from time to time such certificates, documents or instruments as may be appropriate to confirm the dates of commencement or completion of construction as above provided, which certificates, documents or instruments may be recorded by the party requesting the same at its expense. Section 3.8 Progress of Construction. Subsequent to the delivery of possession of the Leased Property to Developer, and until construction of'. the Developer Improvements has been completed, Developer shall keep the City Manager apprised of the progress of Developer with respect to such development and construction. During such period the work of Developer shall be available for inspection by a full-time, on -site representative of the City Manager. The Developer shall provide suitable work space and utilities for the representative at Developer's cost. Developer, by executing this Agreement, -48- U effect until Developer, at its sole cost and expense, shall have secure! 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 �Iearlier 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 "4 Improvements to be designed by City. The City shall corrinence construction of the City Improvements and shall complete the same substantially in accordance with the City's approved Construction Plans in accordance with Exhibit G. At ! the request of either party, the parties will execute and deliver from time to time such certificates, documents or instruments as may be appropriate to confirm the dates of commencement or completion of construction as above provided, which certificates, documents or instruments may be recorded by the i party requesting the same at its expense. Section 3.8 Prooress of Construction. Subsequent to the delivery of possession of the Leased Property to Developer, and until construction of the Developer Improvements has been completed, Developer shall keep the City Manager apprised of the progress of Developer with respect to such development and construction. During such period the work of Developer shall be available ,x 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, -48- 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 I '!E 1 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 Comoletion. Promptly after completion of the Developer Improvements on the Leased Property in accordance with the provisions of this Agreement, the City Manager will furnish Developer with an appropriate instrument so certifying (the "Certificate of Final Completion"). The Certificate of Final Completion shall be in such form as will enable it to be recorded among the Land Records of Dade County. If the City Manager shall refuse or fail to provide such certification in accordance herewith, the City Manager shall within thirty (30) days after written request by Developer, provide Developer with a written statement indicating in s ^+ ! adequate detail in what respects Developer has failed to complete the Developer Improvements in accordance with the provisions of the Agreement, or s 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. x i -49- A Section 3.10 Connection . of BuildjM,.,tO..UtiUtLe9, 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 r411 .i 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 owl 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 -y this Agreement including, but not limited to, any alterations and renovations j 4 made pursuant to Section 3.15 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 authority of the City Manager shall change such that the City i 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 r of the Developer, designate such other officer or department as may be.. -� appropriate to perform the City Manager's obligations. i Section 3.12 Comoliance with Laws. Developer will comply in every i respect with any and all federal, state, county and municipal laws, -, ordinances, rules, regulations, orders and notices now or hereafter in force r 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 i s I -50- Agreement including alterations and renovations pursuant to Section 5.15 of iI. 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 .I hereunder. Section 3:13 Extension of Time Requirements. The times within which Developer must submit Preliminary Plans, Construction Plans and evidence of equity capital and commitments for mortgage financing, and the times within which Developer must commence and complete the development of the Leased Property and the construction of the Developer Improvements thereon as specified in this Article may be extended in writing by the City Manager in its sole discretion, for such periods of time as it deems advisable, for good and sufficient cause shown by the Developer to the reasonable satisfaction of the City Manager. Any such extension of time shall be in writing and in such ,i { form as will enable it to be recorded among the Land Records of Dade County. Section 3.14 Alterations and Renovations. After the completion of construction of the Developer Improvements, Developer from time. to time may 1 i i make such alterations or renovations thereof as it shall deem desirable, provided, however, that no renovation or alteration which affects the exterior i 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 i 1 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. 1 i 1 3 ' -51- 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. To the extent of the City Contribution for Infrastructure, Sixty Thousand and No/100ths Dollars . �. ($60,000.00) must be utilized for art in the public areas of the Leased i 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 r., and comply with all of the provisions and conditions of this Agreement. ., Section 4.2. Character and Operation of Improvements. The parties 1 ' + recognize and acknowledge that the manner in which the Leased Property and i f Improvements are developed,. used and operated are matters of critical concern f to the City by reason of W the prominence of the location in Bayfront Park of the Leased Property, and (ii) the impact which the development of the YI Leased Property is expected to have upon the surrounding Park Site and upon ! the economic development of the downtown area of the City. In order to give the City assurance as to the manner in which the Improvements will be used and operated, Developer agrees that at all times during the term of this Lease, Developer will use its diligent efforts to operate the Leased Property as a first class waterfront specialty center and to maintain a level of quality of character and operation of the Improvements which is comparable to.the level i of quality of character and operation, at the time of execution and delivery of this Lease, to Harborplace in Baltimore. — 52 — 4 1 .. 17 1.t .. f i �' �=u +� from time to time Developer will establish such reasonable rules and regulations governing the use atxi operation by Subtenants of their premises a� r . �� Developer shall deem necessary nr desirable in order to assure the level of r^ quality and character of operation of the improvements required herein; and it i 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, sec` uritY and maintenance by the City of the Park Site shall be of a comparable level of quality and character commensurate with i the quality and character oP the Leased Property. Section 4.3. Miami Grand Prix. The Developer shall abide by the Agreement between the City and the Miami Grand Prix, attached hereto as Exhibit J and any amendments and modifications thereto as of the date hereof '� and shall cooperate with the operator, Miami Motor Sports, Inc., its i successors and assigns. Nothing in this Agreement shall be construed to r., �� modify Exhibit J and Developer shall not violate or cause the City to violate any part of Exhibit J,. ��• ARTICLE Y ' � � ANTI -SPECULATION ; ASSIGNMENT Section 5.1 Defini.tions. As used herein, the term: .-. (a) "Transfer" means i (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; . . -53- i :,. ,,r'� :;,�.. (ii) any transfer of ' the stook of the W*nl Iartrer of Developer or of any Owner, other than an Owner whose shares are publicly traded; or (i.ii) 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, five percent (5%) 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 OEM') of the stock of the General Partner of Developer or other form of ownership interest of any entity described in clause U) or this clause (ii) , but shall not include any shareholder of an Owner whose shares are publicly traded. (c) "Owner whose shares are publicly traded" means an Owner: -� (i) who has filed an effective registration statement with the Securities & Exchange Commission (or its successor) with respect to %the ; shares of any class of its voting stock or of all classes of any other form of ownership interest which includes voting rights; and (ii) whose voting stock and other form of ownership interest j described in clause U) is listed for trading purposes on a securities 1 -54- a e " 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. Nrposes of Restrictions on Transfer. This Lease is granted to Developer solely for the purpose of development of the Leased Property and its subsequent use in accordance with the terms hereof, and not for speculation in landholding. Developer recognizes that, in view of: (a) The importance of the development of the Leased Property to the general welfare of the community; (b) The substantial financing and other public aids that have been made available by the City for the purpose of making such development of the Bayfront Park possible; and (c) The fact that a transfer of the stock of the General Partner of Developer or a substantial part thereof, or any other act or transaction involving or resulting in a significant change in the ownership or distribution of such stock or with respect to the identity of the parties in control of Developer or the degree thereof, is for practical purposes, a transfer or disposition of the leasehold interest in the Leased Property then owned by Developer; the qualifications and identity of Developer and any Owner are of particular concern to the community and the City. Developer further recognizes that it is because of such qualifications* and identity that the City is entering into this Lease with Developer, and, in so doing, is further willing to accept and rely on the obligations of Developer for the faithful performance of all undertaking and covenants by it to be performed. - 55 - 1 Section 5.3. Transfers. Developer, on behalf of itself and any and all Owners, represents and warrants that neither Developer nor any Owner has made1created or suffered- any any Transfers. Except as permitted pursuant to subparagraphs (a) through (g) hereof, no Transfer may be made, suffered or created by Developer or any Owner. The following Transfer shall be permitted ■ hereunder: �j (a) Any Transfer by Leasehold Mortgage to an Institutional Investor A' or to an agent, designee or nominee of an Institutional Lender which is wholly owned or controlled by an Institutional Investor or pursuant to a Financing Sublease, pursuant to Section VI. P a (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 w, 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 Lender or an agent, designee or nominee of an 'Institutional Lender which is wholly owned or controlled by an Institutional Lender, and that such purchaser or grantee within six (6) months after taking j g g possession of the Project, shall vie 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/ Y .' ' 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. N A - 56 - (d) From and after the date that the Project has been in operation years after the Completion Date for seven and one-half (7-1/2) yea �p , any transfer Yr� rto (i) an Acceptable Operator consented to by the City Manager and City Commission or (ii) .a ourchaser having a good reputation and sufficient 1 financial resources, in the opinion of the City Manager and the City ' Commission to own the Pro9ect (an "Acceptable Purchaser_"1 that shall have entered into an Acceptable Operators Agreement with an Acceptable Operator. rIf Developer shall dispute a withholding of consent by the City pursuant to this subsection (d), DeveloVer may submit such dispute to arbitration pursuant ■ to Section 10.5 hereof] v The basis for such arbitration shall be the } reasonableness of the City Manager and City Commission's decision that either such purchaser or operator or both do not meet the criteria herein set forth .to qualify as an Acceptable Purchaser and/or an Acceptable Operator. Any approval of a Transferee shall not waive any of the City's rights to approve or disapprove a subsequent Transfer. (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 Lender 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 5, the Project, the Transferee shall have entered into an Acceptable Operator's Agreement as described in Subsection VI(c)(iv) of this.Agreement. r (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. ^F - 57 - (g) Any Transfer resulting from the death or disolution of an Owner provided that same does not result in the disolution or termination of any general partner of Developer or improvement Developer. Any Transfer made in violation of the terms hereof shall be null and rl 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 an � � � � Y 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 Transfer, advise Developer if it shall consent to same. If the City shall not consent to a Transfer, the City Manager shall state the reasons for such disapproval roval 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 (30) Transfer. writing of same within thirty days after the date of (b) Developer shall from time to time throughout the term of this h Lease as the City shall reasonably request, furnish the City with a complete A R N - 57a - 1l1 {. statement, subscribed ,,And sworn to by the President or Vice -President and the Secretary or Assistant Secretary 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 4 own five percent (5%) or more of the stock 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 subsection (d) and (e) 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 �. recordable among the land records, shall, for itself and its successors and assigns, and especially for the benefit of the City, expressly assume all of the obligations of Developer under this Lease and agree to be subject to all conditions and restrictions to which Developer is subject; provided, however, that any Lender, Leasehold Mortgagee, Lender/ Landlord transferee shall not be required to assume any personal liability under this Lease with respect to any matter arising prior or suUsequent 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 ti not impair, impede or prejudice any other right or remedy available to the (� -58- Hil A 1 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.fi. Transfers of the City's Interests. The City represents and agrees for itself, its successors and assigns, that the City has not made or created and that it will not, during the term of this Lease, make or create or suffer to be made or created any total• or partial sale, assignment, conveyance, mortgage, trust or power, or other transfer in any mode or form of or with respect to the City's reversionary interest in the Leased Property or any part thereof or any interest therein or any contract or agreement to do any of the same, to any purchaser, assignee, mortgagee or trustee unless such purchaser, assignee, mortgagee or trustee shall have the authority and the ability, in the Developer's opinion, to assume the obligations of the City under this Lease and the purchaser, assignee, mortgagee or trustee shall expressly agree to assume the obligations of the City under this Lease, in a form satisfactory to Developer and any Leasehold Mortgagee. Notwithstanding any such transfer and assumption, the City shall not be released from its obligations pursuant to Sections 2.8 and 2.9, which obligations are personal to the City and shall remain in effect during the term of this Lease. - 59 - City for default by Developer); and provided further, that the fact that any 171 ;..a` such transferee of, or any other successor in interest whatsoever to, the fs 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 prr 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 S.A. 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 pof 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 3 1 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 2.9, which =z obligations are personal to the City and shall remain in effect during the "� term of this Lease. 1 1 1 1 1 1 1 91 A Section 5.,7. Subletting. At the City's request, Developer shall provide to the City a copy of all Subleases for the Project. Developer shall incorporate in all Subleases provisions concerning rentals and expenses that are Acompatible with the Annual Base Rental formula in this Agreement. Developer shall have the right, to enter into Subleases of any part. of the Leased Property or Improvements at any time and from time to time during the term of this Lease with such Subtenants and upon such commercially reasonable terms and conditions as Developer shall, in its sole discretion, deem fit and proper, provided, however, that Developer shall not enter into any Sublease with any Subtenant which does not deal with Developer at arm's length without first obtaining the City's approval, which approval the City may in its sole discretion withhold. If Developer shall contemplate making any Sublease with respect to which the City's approval is required pursuant to the foregoing sentence, Developer shall submit to the City a copy of such proposed Sublease together with any information concerning the identity of the Subtenant as the City may reasonably request. Within sixty (60) days after submission of such proposed Sublease and information, the City shall notify Developer whether the proposed Sublease is approved. In the event the City shall fail to so respond within sixty (60) days after submission of such Sublease and information, the same shall be conclusively deemed to have been approved by the City. 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 - 60 - ill 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 s= purpose of financing the construction of any ti Developer Improvements made pursuant to the terms of this Lease orY solely for the long-term financing or refinancing of any such Improvements. Developer shall deliver to City promptly after execution by Developer a true and verified copy of any Leasehold Mortgage (as 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 - 61 - A Leasehold Mortgages, but shall be entitled to rely absolutely upon a preliminary title report current as of the time of any determination of the priorities of such Leasehold Mortgage and prepared by a generally -recognised title insurance company doing business in Miami; Florida. (a) 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 r acc t an surrender of this Lease (except ep Y ep upon the expiration of the full r term of this Lease) nor shall the City consent to any material amendment I 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. r (ii) Notwithstanding any default by Developer in the performance 4 ,A 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 w right to terminate this Lease even though an Event of Default under this Lease shall have occurred and be continuing, unless and until the City Manager shall have given Lender written notice of such Event of Default and Lender shall have failed to remedy such default or to acquire Developer's leasehold estate created hereby or to commence foreclosure or other appropriate proceedings in the nature., thereof, all as set forth in, m T, 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 62 - f. 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 improveinents, 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 Ior 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 r things so done and performed by Lender shall be as effective to prevent a d termination of this Lease as the same would have been if made, done and jperformed by Developer instead of by Lender. (iv) Should any Event of Default under this Lease occur, Lender r 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 LWIILL 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 Premises, enter into an agreement on terms and conditions reasonably acceptable to the City with an Acceptable Operator for the continued 1! operation of the Project (hereinafter called "Acceptable Operator's Agreement"), and (c) Lender shall have acquired Developer's leasehold r T! - 63 - =4_ estate treated 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 f Default shall be subject to and conditioned upon the City Manager having z 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 � r period specified by this subparagraph (iv) : (v) An Event of Default under this Lease which in the nature : thereof cannot be remedied Lender s by end r hall be deemed to be remedied ; _f (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 r ^• foreclosure or other appropriate proceedings in the nature thereof, (b) Lender shall diligently and continuously prosecute any such proceedings to r completion, (c) Lender shall have fully cured any default in the payment of any monetary obligations of Developer under this Lease which do not require possession of the Project within such sixty (60) days period and shall thereafter continue to faithfully perform all such monetary obligations which do not require possession of the Project, and (d) within six (6) months after Lender shall have gained possession of the Project, Tt 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 - 64 - II due. Notwithstanding the foregoing, the City agrees that Lender shall not be obligated to complete construction of the Developer Improvements if Lender shall succeed to Developers estate under this Lease. Any assignee or successor in interest to a Lender that has taken possession of the Premises must, however, assume all of Developer's obligations 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 involvingDeveloper 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 r■ Lender is in possession of the Premises pursuant to the terms hereof and at all times thereafter during the term of this Lease or any Renewal Term, :.7 tithe Rental obligation of such Lender to the City shall be limited to an amount equal to thirty-five (35%) percent of Net Income Available for Distribution provided, however, that nothing herein contained shall 'be construed to relieve the Rouse Company of Columbia, Maryland from its obligations to guaranty payment of the full Annual ease Rental at all times that such Guaranty is in effect. L-0 -- b 1 -65- ' (vii) The City Manager shall mail to Lender a duplicate copy by certified mail of any and all notices which the City may from time to time give to or serve upon Developer. pursuant to the provisions of this Lease; and no notice by the City Manager to Developer hereunder shall be deemed to have been given unless and until a copy thereof has been 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 66 w (vii) The City Manager shall mail to Lender a duplicate copy by certified mail of any and all notices which the City may from time to time give to or serve upon Developer. pursuant to the provisions of this Lease; and no notice by the City Manager to Developer hereunder shall be deemed to have been given unless and until a copy thereof has been 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 - 66 - provision of or a default under this Lease. Upon such f oreclosure, 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 lease, and in connection with any such assignment or txansfer Lender takes back a mortgage or deed of trust encumbering such. leasehold interest to secure a portion of the purchase price given Leasehold Mortgage as contemplated under this Section 6.1, Lender shall be entitled to receive" the benefit of this Article VI and any other provisions of this Lease intended for the benefit of the holder of a Leasehold Mortgage. Any inn 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. �r L ._ (ix) Should the City terminate this Lease by reason of any default by Developer hereunder, the City Manager shall give notice thereof to all Leasehold Mortgagees and the City Manager shall, upon written request by Lender to the City Manager received within sixty (60) days after such termination, execute and deliver a new lease of the Project to.. Lender for the remainder of the term of this Lease with the same covenants, conditions and agreements (except for any requirements which r ;M 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 Project or any Improvements or the priority of such new lease (except as �• to actions taken by the City during the period commencing on the date of termination of this Lease and terminating on the date of such new Lease). Y t. The City's delivery of any Improvements to Lender pursuant to such new lease shall be made without representation or warranty of any kind or nature whatsoever, either express or implied; and Lender shall take any <z Improvements "as -is" in their then current condition (except as to any { a actions taken or improvements made by the City during such time as the w Premises 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 Project within the Lender shall be conditioned upon Lender having remedied and cured all monetary defaults j' " 1 68 - i ( hereunder and having remedied and cured or has commenced and is diligently completing the cure of all non -monetary defaults of Developer susceptible r� to cure by any party other than by Developer. If the City receives written requests in accordance with the provisions of this Section 6.1(ix) from more than one Leasehold Mortgagee, the City shall only be required to deliver the new lease to the Leasehold Mortgagee who is, among those Leasehold Mortgagees requesting a new lease, the holder of the most junior { Leasehold Mortgage, provided that such Leasehold Mortgagee shall, not later than the execution of such new lease, either (x) pay in full the sums secured by any or all Leasehold Mortgages which are prior in lien to the Leasehold Mortgage held by such Leasehold Mortgagee, or (xx) agree to reinstate the liens of any or all Leasehold Mortgages which are prior in lien to the Leasehold Mortgage held by such Leasehold Mortgagee with the r same relative priority as existed prior to the termination of this Lease. A If any Leasehold Mortgage having the right to a new lease pursuant to this Section 6.1(ix) shall elect to enter into a new lease but shall fail to do so or shall fail to take the action required above, the City shall so notify all other Leasehold Mortgagees (if any) and shall afford such other Leasehold Mortgagee a period of sixty (60) days from such notice within which to elect to obtain a new lease in accordance with the provisions of this Section. Except for any liens reinstated pursuant to this Section" ^ 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 j� hereunder in and to the Leased Property and the Developer Irtprovements. At Developer's request, the City will enter into an agreement with any r - 69 . 4. Leasehold Mortgage granting to the Leasehold Mortgagee the rights set forth in this Article, if such new lease is entered into pursuant hereto, the Lender shall be'entitled to offset from the previous rentals due the City under this Least' the net operatint j profit, if any; made by the City during the period that the City shall have operated the Project. W City and Developer shall cooperate in including in this Lease by suitable amendment from time to time any provision which may be requested by any proposed Lender' or may otherwise be reasonably necessary, to implement the provisions of this Article VI; provided, however, that any such amendment shall not in any way affect the term hereby demised nor affect adversely in any material respect any rights the City under this Lease' (xi) All rights and benefits afforded to a Leasehold Mortgagee hereunder shall also be afforded to a party providing financing to Developer pursuant to a Financing Sublease. 7% 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 WM from any liability for the non -observance or non-performance thereof, or to I 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": r 70 - t q. (a) Failure of Money. Failure of Developer to pay any ; r 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 �6 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 5 ow the City on the date the same becomes due and payable, Developer covenants and ,r 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 or the Foundation by the Developer under this Lease, including interest, penalties and contributions, shall be treated as Additional Rent. .. (b) Failure - Performance of Other Covenants, Etc. Failure of Developer to perform any of the other covenants, conditions and agreements which are to be performed by Developer in this Lease or failure to perform any of the other covenants, conditions and agreements in the Minority Cam. Participation Agreement, Garage~ Agreement, and the Management and Construction .. Agreement with the City Department of Off -Street Parking, 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 .f thereafter shall have continued diligently to prosecute all actions necessary to cure such default, said failure shall constitute an Event of the 0- Developer's Default. - 71 - 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 YI 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 y 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 z 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 f 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 kr 5 thereafter shall continue diligently to prosecute all actions necessary to cure such defaults, such failure shall constitute an "Event of the City's Default". -72- (b) Remedies for City's Default. it 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 g by giving notice of such election to the City, iwhereupon this Lease shall terminate as of the date of such notice; (ii) the right to a writ of mandamus, injunction or other i similar relief, available to it under Florida law against the City (including any or all of the members of its governing body, and its officers, agents or representatives); (iii) the right to maintain any and all actions at law or suits in equity or other proper proceedings to obtain damages_ resulting from, such default. - Section 7.4. Unavoidable Delay. For the purpose of any of the provisions of this Agreement, neither the City (including the City Manager) nor Developer, as the case may be, nor any successor in interest, shall be considered in breach of or in default in any of its obligations, including but not limited to the preparation of the Leased Property for development, or the beginning and completion of construction of the Developer Improvements or City Improvements, or progress in respect thereto, in the event of unavoidable delay in the performance of such obligations due to delays due to strikes, lockouts, acts of God, inability to obtain labor or materials due to governmental restrictions, enemy action, civil commotion, fire, unavoidable casualty or other similar causes beyond the reasonable control ofl a party (not including Asuch party's insolvency of financial condition), it being the purpose and intent of this, p-ragraph 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 - 73 - ' Default. (b) Remedies .for City s e If an Event of the Cit Y 's Default ` 4 shall occur, developer, to the fullest extent permitted by law, shall have the V; right to pursue any or all of the following remedies: (1) the right and option to terminate this Lease and all of its i 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 representatives); (iii) the right to maintain any and all actions at law or suits in equity or other proper proceedings to obtain damages resulting _from .� V V .. such default. -- Section 7.4. Unavoidable Delay. For the purpose of any of the provisions of this Agreement, neither the City (including the City Manager) nor Developer, as the case. may be, nor any successor in interest, shall be considered in breach of or in default in any of its obligations, including but not limited to the preparation of the Leased Property for development, or the beginning and completion of construction of the Developer Improvements or C ity Improvements, or progress in respect thereto, in the event of unavoidable �. delay in the performance of such obligations due to delays due to strikes, lockouts, acts of God, inability to obtain labor or materials due to governmental restrictions, enemy action, civil commotion, fire, unavoidable casualty or other similar causes beyond the reasonable control of) a party_ (not including Asuch 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 r 73 tk to the obligations of the City and the City Manager with respect to the: preparation of 'the Leased Property for development and completion of the City f. �_ ,' Im rovements v or of Developer with respect to construction of Developer "r Improvements, shall be extended for the period of unavoidable delay; provided, 1 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 r _ such unavoidable delay, give notice to the other party thereof in writing of 1 the cause or causes thereof and the time delayed. 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 j breach or of any of its remedies for any other default or breach by the other I party. No waiver made by either party with respect to performance, or manner or time thereof, of any obligation of the other party or any condition to its . own obligation under this Agreement shall be considered a waiver of any rights • of the party making the waiver with respect to the particular obligations of the other party or condition to its own obligation beyond those expressly waived and to the extent thereof, or a waiver in any respect in iegard to any other rights of the party making the waiver or in regard to any obligation of the other party. ARTICLE VIII PROTECTION AGAINST MECHANICS' LIENS AND OTHER CLAIMS, INDEMNIFICATION Section 8.1. Mechanics' Liens and Payments of Obligations. ' -- (a) Developer to Discharge Mechanics' Liens. Developer shall not be given possession of the Leased Property or authorized to begin construction - 74 - thereon prior to the reco 1 p toting of this Lease and prior to Possession date to 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; i� Developer shall promptly take and diligently prosecute appropriate action to =_ have the same discharged or to contest in good faith the amount or validity ` 9 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 icounsel fees, court costs and other necessary disbursements). Any such amounts paid by the City and the amount of any such expenses or costs incurred by the City, if not paid by Developer to the City within thirty (30) days after the date Developer receives written notice from the City of the amount thereof and demand for payment of the same, shall, together with interest thereon at the _ Default Rate from the date of the receipt by Developer of the aforesaid written notice and demand to the date of payment thereof by Developer, be treated as Additional Rental, and shall be payable by Developer to the City -� not later than the next monthly installment of the Annual Basic Rental becoming due. (b) Payment of Materialmen and Suopliers. 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 reconstnxtion 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 - 75 - r _ - to contest, in good faith, by legal proceedings or otherwise, whether any _ amou-it 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 �j dispute. 1 Section 8.2. Iru�ofCity. Notwithstanding any policy or 1 policies of insurance required of Developer, Developer shall indemnify and save -- harmless the City from and against any and all actions, claims or demands, suits at law; in equity or before administrative tribunals, due to the negli- gence 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 snail tnaem mry ano 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 use or occupancy of the Leased Property by such persons. The City stall 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 damage by an insured peril. Coverage shall be written -76- on as broad an All Risk form as is commercially available. The insurance r shall be written on a replacement cost basis. If the olic policy p ' or policies of insurance contain a coinsurance requirement, the policy or policies shall contain an agreed upon endorsement. During the construction period, property insurance may be provided on a Completed Value Builder's Risk form. The term "Improvements", as used in this paragraph, shall be deemed to include all personal property furnished or installed on the premises and owned by the Developer, and the insurance herein provided shall cover the same. The adequacy of the vInsurance coverage may be reviewed periodically by the City Manager at his discretion. Any review by the City Manager shall not constitute an approval or acceptance of the amount of insurance coverage. In the event that insurance proceeds are inadequate to rebuild and restore the damaged Improvements to substantially their previous condition before an insurable loss occurred, and the cause of the deficiency in insurance proceeds_ is the failure of the Developer to adequately insure the ,Improvements as `P, required by this Agreement." Developer hMust nevertheless rebuild and restore 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. (b) Rental Value Insurance. Rental value insurance, so that Developer will be insured against loss of rental income from the improvements occasioned by any of the insured against perils included in the Property Insurance policy during the period required to rebuild, repair or replace the property damaged, which policy or policies of insurance shall expressly provide by endorsement thereon that the interest of the City as lessor under this lease shall be covered to the extend earned, in an amount equal to the total of Annual Basic Rental payable during said period of business interruption; provided, however, that Developer shall not be required to carry such rental value insurance as aforesaid until such time as the Improvements shall be -77- 1. 11L I d opened for business with the general public. The adequacy of every five years the Rental Value Insurance may be reviewed by the City Manager every live ears. 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. ---�'1 (d) Liability Insurance. Comprehensive general liability or an e.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 I� during the period of permitted access provided in Section 3.8 herein. It is the City's intent that any liability insurance provided pursuant to this Section shall be deemed primary insurance coverage in the + event of any loss arising from the premises and operations covered by this Agreement. 1 -78- L a (e) Copies. 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 renewalpolicies 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 �l and enforceable policies issued by insurers of recognized responsibility, I� 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 11 by losses occurring at other properties or locations. Section 9.3. Named Insureds - Notice to City of Cancellation. All !1 policies of insurance described herein shall name Developer and the City as' insureds as their respective interests may appear. The policies shall also name as insured, if required by either party or required pursuant to the terms of any Leasehold Mortgage or Financing Sublease, any Leasehold Mortgagee as the interest of any such Leasehold Mortgagee may appear. Notwithstanding any such inclusion, the parties hereto agree that any losses under such policy shall be payable, and all insurance proceeds recovered thereunder shall be - 79 0 Iapplied and disbursed in accordance with the provisions of this tease. All insurance policies shall provide that no material change$ cancellation or termination shall be effective until at least thirty (30) days after receipt of written notice thereof has been received by the City. Each policy shall contain an endorsement to the effect that no act or omission of the Developer Il 1 11 Ij 1 Y 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 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 Damaoe 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 E t of genial, or from the payment of any money to be treated as Additional gent in respect thereto, pursuant to this Agreement, as the same may become due and payable, as provided in this Agreement, or from the performance and fulfillment of any of Developer's obligations pursuant to this Agreement. Section 9.7. Proof of Loss. Whenever any Improvements, or any part thereof, constructed on the Leased Property (including any personal property furnished or installed in the premises) shall have been damaged, or destroyed, Developer shall promptly make proof of loss in accordance with the terms of r R 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 �!I 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 r, the casualties covered by the property insurance policies shall be payable: i (i) Directly to Developer, if the total recovery is $500,000.00 6 or less which amount shall be adiusted periodically every five (5) vears commencing with the Rent Commencement Date by the percentage change_ in the 7 Consumer Price Index for such 5 year period, or in the event the Consumer Price Index is unavailable, some other equivalent Government Sponsored Survey of Changes in the prices of consumer goods and services: except that if Developer is then in default under this Lease, such proceeds shall 3 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. To the Insurance Trustee, if the total recovery is in excess of $500,000.009 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 for such 5 year period, or in the event the Consumer Price Index is unavailable, some other equivalent Government Sponsored Survey of Changes in the prices of consumer goods and services, 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 -81a- 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. A11 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 A 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 roved in advance b the City Manager. approved Y Y 9e • f Any amount remaining in the hands of the Insurance Trustee after the t completion of the Reconstruction Work shall be paid to Developer. t (c) Lenders and Lender/Landlords May Have Benefit of Insurance Fund for Reconstruction. In the event Developer, pursuant to any Leasehold Mortgage Ar Financing Sublease, shill at any time authorize the Lenders 'or Lender Landlords on his behalf or in his stead to enter upon the Leased Property and undertake or prosecute the reconstruction or rop y p repair of any I 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 f Leasehold Mortgagees' use for such purpose such insurance proceeds, then in - 82 - that case said insurance proceeds shall be equally available to such Leasehold Mortgagee as to Developer as provided in subsection (b) of this Section 9.8, and it shall in Like manner and to like extent at the request of any such Leasehold Mortgagee, be applied to the reconstruction or repair of any such building so damaged or destroyed. Section 9.9. Covenant for Commencement and Completion of Reconstruction. Subject to the provisions of Section 9.1(b) and Section 9.10, Developer covenants and agrees to commence the Reconstruction Work as soon as practicable but in any event within six (6) months after the insurance (j proceeds in respect of the destroyed or damaged Improvements or personalty have been received, and to fully complete such Reconstruction Work as expeditiously as possible consistent with the nature of the damage, but in any event within eighteen (18) months from the start thereof; provided, that if it is not practicable to commence such Reconstruction Work within such six (6) month period, or to complete such Reconstruction Work within such eighteen (18) month period, then such Reconstruction Work may be commenced and completed within a longer period, provided that such period shall bo 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 to repair and restore the seawall, riprap and marina shown on the Site Plan to a condition mutually acceptable to the parties !K heoto if same shall be damaged or destroyed. ff - 83 - E Section 9.10. Developer s Rights In -the Event of Uninsured Major = Casualty. In the events any part of the o I rovements 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 z, I R r, h hl 11 r - 83a - f 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 P r'oP Y so damaged or destroyed and this Lease shall thereupon terminate as to such j� portion of the Leased Property and Developer shall have no further obligation If! hereunder with respect thereto, except that, if the City shall so request within thirty (30) days after such notice is given, Developer shall, at its expense, promptly demolish any buildings or other improvements situated on the portion of the Leased Property as to which 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 i� 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 �fl substantially damaged or destroyed in any single casualty so that the Improvements or the Leased Property shall be unsuitable for restoration for Developer's continued use and occupancy in Developer's business, then at Developer's option, in lieu of rebuilding, replacing or repairing the. f. Improvements or the Leased Property as provided in this Lease. Developer may i give notice to the City, within sixty (60) days after the occurrence of such !�4 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 of ter the date of such damage or destruction, provided that such notice shall be accompanied by a certificate �J — 84 — of the Developer, signed by the Appropriate Officer or General Partner, stating that in'the reasonable judgment of Developer, the Improvements and the fI 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; at its expense, promptly demolish any building or other remaining improvement and shall clear and grade the Leased Property. 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 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 conveyarr-e, and this Lease shall' terminate and become null and void as of the date of such taking or 3 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 ' - 85 - 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. 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 actin jointly to avoid proceedings of such taking, 9 .� Y P n9 and Developer shall be of the good faith opinion that it is economically feasible to effect restoration 'i 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 t� Property not so taken or conveyed (except as provided in subsection (c) of t 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 - 86 - U '� � 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 oP 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; {i Se_ ond: 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; T_: There shall be paid to the Developer the amount required to complete the remodeling and repairs to the Improvements pursuant to (a1 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 Pound 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 9 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 -87- ' 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 jj be unable to agree upon the amount of such reduction within thirty (30) days ;11• 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 Temoorary Use or of Leasehold Estate. If, by the exercise of the power of eminent domain, or under threat thereof, the whole or any part of the Leased Property or the Improvements shall be taken for temporary use or the whole or any part of the leasehold estate created by this Lease shall be taken, all awards or other payments shall be paid to Developer alone, except that, (i) if any portion of any such award or payment on account of a taking for temporary use is made by reason of any damage to or destruction of any portion of the Improvements, such portion shall be applied to pay the cost of restoration, (ii) it 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, including Rentals payable as a percentage of Gross Rental Income. This shall, for the purposes of this Section 10.4, be the Average Annual Basic Rentals payable in the immediate 3 year period prior to the taking by the time the notice of condemnation or period of since commencement of Annual Basic Rental, whichever period is greater. 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) It either party shall fail to designate a member within fifteen (15) days after a written request so to do by the other party, I - 89 - 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 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 1� 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 Real Estate Valuation Rules of the American Arbitration Association where the same are applicable. In all other controversies, disputes or claims referred to Arbitration under the provisions of this Agreement, the Arbitration shall be conducted in accordance with the Commercial �"' Arbitration Rules of the American Arbitration Association." In determining any matter before them, the Arbitration Panel shall apply the law of the . State of Florida, including the choice of remedy, if any, to the resolution of the dispute between the parties. 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 id question at issue. All arbitration hearings shall be held at a place designated by the Arbitration Panel in Dade County, Florida. - 90 - ate` af� ± n .4. _ 'j� '��655r",�.. (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 i ' 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 fort_ ve (5) 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 v 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 -91- 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 XI RIGHTS OF OCCUPANCY AND ACCESS; MAINTENANCE, OWNERSHIP OF IMPROVEMENTS Section 11.1. Quiet Enjoyment. The City represents and warrants that Developer, upon paying the rental pursuant to this Agreement and observing and keeping the covenants and agreements of this Agreement on its part to be kept and performed, shall lawfully and quietly hold, occupy and enjoy the Leased Property without hindrance or molestation by the City during the term of this Agreement or by any person or persons claiming under the City. Section 11.2. Waste. Developer shall not permit, commit or suffer �• waste or impairment of the Leased Property, or the Developer Improvements ... 10 thereon, or any part thereof. Section 11.3. Maintenance and Operation of Developer Improvements. Developer shall at all times keep the Developer Improvements constructed on the Leased Property and all furnishings located therein in good and safe condition and repair as other first class projects in similar usage are kept �! (reasonable wear and tear expected), and in the occupancy, maintenance and '} operation of such Improvements, and of the Leased Property, shall comply with all laws, ordinances, codes and regulations applicable thereto. I 1 - 92 - Section 11.4; Ownership of* Improvements During Lease. prior to the rr; expiration or termination of this Lease, title to the Improvements shall not t vest in the City by reason of its ownership of fee simple title to the Leased t 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 Section 6, then title to the Improvements shall automatically pass to; vest in and belong to such Leasehold Mortgagee or any designee or nominee of such Leasehold Mortgagee permitted hereunder' until the expiration or sooner termination of the, term of such new lease: The City and Developer covenant that to confirm the automatic vesting of title as provided in this paragraph, each will execute and deliver such further assurances and instruments' of assignment and conveyance as may be required by the other for that purpose. During the term of this Lease, Developer shall be entitled to claim depreciation on the Improvements and all equipment, fixtures and machinery therein contained, for all taxation purposes. Section 11.5. Surrender of Leased Property. Upon the expiration of i; 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 with process of law, and Developer, in such event, does hereby waive any demand for possession thereof, agrees to surrender and deliver' the Leased Property and the Improvements thereon, without process of law, peaceably to the City immediately upon such expiration or termination. [1 - 93 - E F 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, F (a) Join Developer when required by law in any and all applications for permits, licenses or other authorizations required by any governmental or public authority which has jurisdiction in connection with any work as may be reasonably necessary or appropriate for the construction of the Improvements to be constructed by Developer on the Leased Property; and (b) Join Developer in any grants of, or grant such, easements or rights with respect to 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. Section 11.7. Non -Compete. . Developer covenants that neither it nor any of its affiliates, parent or subsidiary companies will develop, operate or - sponsor a Waterfront Specialty Center having a merchandise mix similar to this Project for a period of seven and one-half (7-1/2) years after the Completion Date in Dade or Broward Counties, Florida. The City agrees that the non -compete clause herein contained shall not prohibit Developer or any of its affiliates, its subsidiaries or its parent from operating, developing or sponsoring shopping center projects substantially similar to the Zhops at Bal ./ Harbor and Mayfair in the Grove or traditional suburban shopping center projects. Developer shall be bound by this agreement not to compete for as long as this Lease and any extension of the, term hereof shall remain in effect, even if Developer shall assign its interest herein pursuant to the terms hereof. No assignment of Developer's interest hereunder shall relieve Developer, its subsidiaries, affiliates or parent from the obligations imposed -94- hereunder and Developer agrees to execute any reasonable agreement memorializing this understanding. The City agrees that it will not sponsor any Waterfront Specialty Center within the City boundaries which shall contain more than 1009000 square feet of gross leaseable area that shall be utilized for retail purposes with a merchandise mix similar to the merchandise mix being offered to the public at the Project for a period of seven and one-half (7-1/2) years after the Completion Date. Notwithstanding the foregoing the City may sponsor a project on Watson Island which may provide for more than 100,000 square feet of retail area with a merchandise mix similar to the merchandise mix being offered to the public at the Project provided that the primary purpose of the Watson Island development is for recreational, cultural and marina purposes. n R - 94a - F R ARTICLIExn • missal ANEOUS PROVISIMS Section 12.*L 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 the Land Records of Dade Count recorded among Yl State of Florida, and either party may cause any modification or addition to this Lease or any ancillary document relevant Ito 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 taken and deemed to have been fully made and executed by the parties hereto in the State of Florida for all purposes and intent and shall be governed by the laws of said State. This Agreement is subject to and shall be interpreted to effectuate its compliance with the Charter of the City of Miami, the City of Miami Code and the Dade County Charter and Code. Furthermore, the terms of this Agreement allow reasonable public access to the water, reasonable public use of such property, and comply with other charter waterfront setbacks and f view corridor requirements. Any conflicts �a between this Agreement and the aforementioned Codes and Charters shall be resolved in favor of the latter. is In the event that any part or portion of this Agreement is found to be in con- flict with any Charter or Code Section then that portion of this Agreement E i? shall be automatically stricken and the remaining parts shall remain in full force and effect to the extent Developer in its reasonable opinion deems it commercially reasonable to continue the operation of the Project. Contempora- neously 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. i� Section 12.4. Conflicts of Interest; City Representatives Not Individually Liable. No member, official, representative, or employee of the City or the City Manager shall have any personal interest, direct or indirect, in this Agreement, nor shall any such member, official, representative or employee participate in any decision relating to this Agreement which affects his or her personal interest or the interest of any corporation, partnership •� or association in which he or she is, directly or indirectly, interested. No member, official, representative or employee of the City or the City Manager *� shall be personally liable to Developer or any successor in interest in the event of any default or breach by the City or the City Manager or for any amount which may become due to Developer or successor or on any obligations• under the terms of the Agreement. Section 12.5. Notice. A notice of communication under this Agreement by either the City or. the City Manager, on the one hand, to Developer, or, on the other, by Developer to the City or the City Manager shall be sufficiently given or delivered if dispatched by registered or certified mail, postage prepaid, return receipt requested; and ;,v,- in (a) Developer,. In the case of a notice or communication to in DDeveloper$ if addressed as follows: General Counsel 6ayside Limited Partnership c/o The Rouse Company Columbia, Maryland 21044 ii. (b) Developer ,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: 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. I. 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 i - 97 - sir; i any way, org if there have been modifications# the Lease is in full force and effect as modified, identifying such modification agreement, and it the Lease is not in force and effect, the certificate shall so state; (ii) the Lease as between to this ir. modified represents the entire agreement the parties as leasing, or, it it does not, the certificate shall so state; (iii) the dates t� on which the term of this Lease commenced and will terminate; (iv) all 119 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,_ Developer, 19 there are no existing defenses or offsets which the City or as the i case may be, has against the enforcement of the Lease by the other party, or, it such conditions have not been satisfied or it 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 Tull, or, 19 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 l# veracity or accuracy of the same. Any certificate required to be made by the City pursuant to this paragraph may be made on its behalf by the City Manager. Section 12.7. Provisions Not Merged with Deed. None of the provisions of this Agreement are intended to or shall be merged by reason of . any deed W transferring Developer's leasehold estate in the Leased Property and Improvements or any part thereof from the Developer (or its successors or assigns) to the City (or its successors or assigns), or (ii) transferring � 1 o he Leased Property or a art thereof from the City to Developer, title t t rap y any p Y its successors or assigns, and any such deed shall not be deemed to affect or i impair the provisions and covenants of this Agreement. Section 12.S. Titles of Articles and Sections. Any titles of the several parts, ' Articles and Sections of this Agreement ate inserted for R= convenience of reference only and shall be disregarded in construing or interpreting any of its provisions. •p Section 12.9: Co_unterparts. This Agreement is executed in six (6) h f which shall be deemed an original,and such counterparts counterparts, each o hi� shall constitute one and the same instrument: Section 12.10. Nondisturbarre and Attornment. The City covenants and 1 agrees with Developer for -the benefit of any and all Subtenants occupying any r_ 'j 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 1 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 i i 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, prarrptly upon request of Developer or any Subtenant, it will enter into agreements with the Developer and any such Subtenant confirming such nondisturbance agreement. Any such confirmatory agreement may be made on behalf of the City by the City Manager. it 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 t from the provisions of this Section 12.10. j Section 12.11 Non-discrimination and Equal Opportunity_. Solely with regard to the construction of the Improvements on the Leased Property pursuant r to this Agreement, Developer agrees for itself, its successors and assigns, to f insert into all agreements with the general contractor the provisions relating r to equal opportunity set forth in Exhibit H. 'I 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 Participation Program attached hereto as Exhibit H. As used herein i and in the Exhibits, "minorities" shall include Blacks, Hispanic and Asians. Nothing in this Section 12.11 shall restrict the right of Developer to determine the use, amount of space and other terms of lease in the Leased '{ Property, provided such terms are not discriminatory. 711 Developer also agrees to organize and fund a minority development I 7 r+ foundation ("Foundation") with an Annual Contribution of an amount equal to ten percent (10%) of the Net C_ash_. Available for Distribution or $100,000, whichever is greater, in accordance with provisions contained in Exhibit I which payment shall commence on the Rent Commencement Date. The annual contribution shall be, for the purpose of this Agreement, considered Additional Rent, and as such, subject to Section 2.5(c). The Foundation shall be organized to and shall obtain the status of a tax exempt organization under Section 501c(3) of the Internal Revenue Code prior to the date Developer is obligated to make such annual contribution. The Foundation will provide assistance to minority communities in the City and in Dade County, which Foundation shall have the following focus: (a) creation of a loan guarantee and venture capital fund for loans to minority enterprises which may be prospective tenants in the Project or located elsewhere in Dade County or South Florida. The objective of these loan guarantees is to promote opportunities for minority -controlled and operated businesses and to create jobs for minorities. - 100 - f> (b) creation of scholarship fund for vocational education. �+ (c) allocation of special funds to provide technical assistance in the form of management; legal; accounting, business, development, counseling and training services to local community development corporations which are =- engaged in economic development activities: i1 (d) creation and distribution of special funds for business development allocated through the Miami -Dade Chamber of Commerce and Latin Chamber of Commerce. 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 a� BAYSIDE LIMITED PARTNERSHIP; has caused this Lease Agreement to be signed in its name by its Executive Vice -President and its corporate seal to be hereunto affixed, duly attested to by 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 •�ii Clerk, on the day and year first hereinabove written. ATTEST: BAYSIDE LIMITED PARTNERSHIP By: ROUSE MIAMI, INC., general partner By: j Executive Vice -President . [Corporate Seal] Ij 11 101 .. (b) creation of scholarship fund for vocational education. (c) allocation of special funds to provide technical assistance in st the form of management; legal; accounting, business, development, counseling L and training services to local community development corporations which are s- engaged in economic development activities; (d) creation and distribution of special funds for business development allocated through the Miami -Dade Chamber of Commerce and Latin Chamber of Commerce. Section 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 BAYSIDE LIMITED PARTNERSHIP; has caused this Lease Agreement to be signed in its name by its Executive Vice -President and its corporate seal to be hereunto affixed, duly attested to by 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: [Corporate Seal3 BAYSIDE LIMITED PARTNERSHIP By: ROUSE MIAMI, INC., general partner By: Executive Vice -President 1o1 ATTEST: 4' [Corporate Seal] APPROVED AS TO FORM AND CORRECTNESS: CITY ATTORNEY I .l • a.i i - t j 602F/22A f 1� • .a: THE CITy OF TION OF THE 5fiA'1EI�I�F FLORIDA AL CO�tP(IRA�► By: Howard V. Gary, City Manager — 102 — 4 Pas. Date 0 June 30, 1984 30 July 30, 1984 135 225 250 305 730 790 850 602F/22A EXHIBIT September 30, 1984 October 30, 1984 November 15, 1984 Febivary 13, 1985 February 28, 1985 March 10, 1985 May 152. 1985 June 30, 1986 August 30, 1986 October 31, 1986 Event Fully negotiated executed documentation (Lease, Parking Garage, The Rouse Company Guaranty, Minority Program. Complete refinement of conceptual design with city Financing commitments obtained - Retail and Parking Approval of Financing - Retail and Parking Preliminary plans to City for approval including City departments review and approval (Retail, Infrastructure and Parking Garage) City Approval including City departments of preliminary plans (Retail, infrastructure and Parking Garage) Complete review of final plans with City (Retail, infrastructure and Parking Garage) City approval including City departments approval of final plans (Retail, infrastructure and Parking Garage) Issuance of Building Permits Corps of Engineers landfill complete Demolition complete n Possession Date Rouse and City commence construction Infrastructure substantially complete Sayfront improvements substantially complete Bayside & parking open to public and Rent Commencement Date r1l Developer agrees to negotiate in good faith with the City • mutually acceptable terms and conditions for the transfer of the Parking Garage Air Rights Parcel to the City for the purpose of `2 7 the possible construction of a performing arts center. Such terms and conditions may be more specifically set forth in the Parking Garage Agreement. _-_ (2UALIF'ICATIONS NORMAN KUR�'EitST, M.A.I. {`� EXPERIENCE Real estate appraisal and consulting experience in South Florida ,' since 1956 in Governmental Tax Assessing, Mortgage Risk Under�,�riting, Mortgage Banking and Independent Fee Appraisal practice. ;; '{ e �' TYPES OF PROPERTIES APPRAISED Air Rights Apartment Buildings Bank Condominium Apartments Cooperative Apartments Country Club Easement Experimental Housing Golf Course Group riedical Facilities Hospital Hotel Industrial Land Development Programs EDUCATION Leasehold Estate Marina Medical Clinic Mobile Home Court Motel Nursing Home Office Building Parking Garage Residential Special Purpose Store Vacant Acreage and Lvts Urban Renewal Resale Warehouse Formal education at John Marshall College of Seton Hall University, Urban Center, Jersey City, New Jersey with special education in real estate and appraisal at University of Miami, University of Florida, University of Tampa and Southern riethodist University. Served on the faculty of American Institute of Real Estate Appraisers 1972 thru 1979, teaching appraisal courses at Florida International University, University of Maryland and University of Tampa. �� The American Institute of Real Estate Appraisers conducts a voluntary program of continuing education for its designated members. M.A.I.s and R.Ai.s who meet the minimum standards of this program are awarded r` periodic educational certification. I am certified under this pro- f �} --�1 gram through December 31, 1986. := � AFFILIATIONS :� 'rt M.A.I.: rlember, American Institute of Real Estate Appraisers. �:•; President, South Florida and Caribbean Chapter 1980. Licensed Real Estate Broker, Registered with Florida '� � . Dept. of Professional Regulation, Board of Real Estate. � ,� Institute Affiliate, Coral Gables Board of Realtors and ;!� Florida Association of Realtors. �� A y ;..5>, .. _. ... ,_ _ _ «.�a. -- - - - __ - _ .: - - ;.�.. ., - "t'� >:. r.; � �,1 wo QUALIFICATIONS NORMAN KURFERST, M.A.I. EXPERIENCE Real estate appraisal and consulting experience in South Florida since 1956 in Governmental Tax Assessing, Mortgage Risk Underwriting, Mortgage Banking and Independent Fee Appraisal practice. TYPES OF PROPERTIES APPRAISED Air Rights Apartment Buildings Bank Condominium Apartments Cooperative Apartments Country Club Easement Experimental Housing Golf Course Group Medical Facilities Hospital Hotel Industrial Land Development Programs EDUCATION Leasehold Estate Marina Medical Clinic Mobile Home Court Motel Nursing Home Office Building Parking Garage Residential Special Purpose Store Vacant Acreage and Lots Urban Renewal Resale Warehouse Formal education at John Marshall College of Seton Hall University, Urban Center, Jersey City, New Jersey with special education in real estate and appraisal at University of Miami, University of Florida, University of Tampa and Southern Methodist University. Served on the faculty of American Institute of Real Estate Appraisers 1972 thru 1979, teaching appraisal courses at Florida International University, University of Maryland and University of Tampa. The American Institute of Real Estate Appraisers conducts a voluntary " program of continuing education for its designated members. M.A.I.s and R.M.s who meet the minimum standards of this program are awarded periodic educational certification. I am certified under this pro- gram through December 31, 1986. AFFILIATIONS M.A.I.: Member, American Institute of Real Estate Appraisers. ii President, South Florida and Caribbean Chapter 1980. Licensed Real Estate Broker, Registered with Florida j Dept. of Professional Regulation, Board of Real Estate. Institute Affiliate, Coral Gables Board of Realtors and .a Florida Association of Realtors. )ia"�'.. •.} 3�'.i.� i.i-�^ ey;. .� 1 f � .'t I 0 CITY OF MIAMI Bayside Specialty Center APPRAISAL #84121 S&64 S" a W016 'lar. 84-1341 - 3 091rack, Slack & Amp Jnc. 1620 W. FLAGLER STREET - MIAMI. FLORIDA 33135 MIAMI PHONE 643.0443 BROWARD PHONE 763-9033 • 0 011"AdY411 T. W. SLACK, MAI, ASA August 16, 1984 T. C. SLACK, MAI, SRPA BRUCE C. ROE, MAI, SRPA City of Miami Property Management P.O. Box 330708 Miami, Florida 33133 Attention: Mr. John Gilchrist Re: Appraisal #84121 Gentlemen: Pursuant to your request, I have made a careful inspection of that property known as Bayside Specialty Center, Miami, Florida, which is more particularly described elsewhere in this report, and have made a study of condi- tions affecting its value. I do not have any present or prospective interest in this property. By reason of my investigation, and by virtue of my experience, I have formed the opinion that the terms of the lease agreement will result in a "fair rent" to the City of Miami. In addition to the monetary return there are subs- tantial benefits to the City which are outlined herewith. By the capitalization of anticipated net return from the specialty center and garage, the land value is estimated at approximately $38.00 per square foot. This is based on a 10% capitalization rate. The predicting increasing income makes the long range aspects of the proposal very attractive. Respectfully submitted, THEODORE W. SLACK, MAI, ASA TWS:mf AA"" SAw�&&f&V a "Oft, his .n y` r TABLE OF CONTENTS • E • Aerial Prespective Summary of Important Conclusions Purpose of the Appraisal Revised Plat of Proposed Development Legal Description Site Plan Property Description Basic Terms of the Lease Agreement Parking Lot Agreement Valuation Criterion Economic Analysis Comments on Additional Indeces of Value Addendas: Qualifications of the Appraiser Definition of Highest and Best Use Limiting Conditions and Certification Site Location Plan and Sketches Former Plat of Proposed Development Program Summary - Rouse Company 0 9" 514ai & RM #6 9Y. Pages i ii 1-la 2 3 3a 4-6 7-11 12-13 14 15-20 21-23 B C D E F LU I Page ii Ll SUMMARY OF IMPORTANT CONCLUSIONS 1) Based upon my study of.the lease provisions and capabilities of the Lessee, it is my opinion that this project will produce a fair return to the City of Miami. 2) The capitalized value of the net return to the City from the retail project and the garage indicates that the value of the land will have a current value of slightly over $38.00 per square foot. 3) The additional benefits to the City are substan- tial and are described elsewhere in this report. In the income projection, the additional income from taxes to the City and the County have not been capitalized to value. 4) The benefits to the City from the initial $100,000 contribution to the minority development foundation have not been included as income, but are an important part of the indirect benefits. 5) The capabilities and accomplishments of the Rouse Company detailed in the proposal submitted to the City indi- cate the reliability of their projection and is used as the basis of the economic aspects. 6) The per square foot sales projection (page 16) summarizes the income per square foot of the various classes of tenants. The 1986 projection at $526 per square foot increases gradually to $1,079 per square foot. These figures are the basis for the income and appear to be obtain- able based on similar specialty centers operated by the Rouse Company throughout the country. 5: 7) In summary, the economic social and general benefits can make this one of the most important factors in the stimulation of the downtown Miami area. • • Sly SAW d V^ 9AV. t 11 Page 1 PURPOSE OF THE APPRAISAL As instructed by Resolution 84-736, the purpose of this assignment is to appraise the development of the "Bayside Specialty Center" to determine if the terms of said lease agreement result in a fair return to the City of Miami. Under the definition of my assignment it is under- stood that the approach to this problem is to estimate • whether or not the terms of the lease agreement dated July 24, 1984 will result in a fair return to the city under the terms and conditions of the lease. This will include a number of important returns to the city beyond the monitary return. These "returns" consists of several items which are as follows: 1) The utilization of the Bayfront Park property for the purpose as outlined in the lease agreement will benefit the downtown area generally as a major attraction which will stimulate interest among visitors as well as residents in the downtown area. While this benefit may not be measured • in terms of money in a direct fashion, merchants, hotels and other properties should participate in this return. 2) The property involved, which is presently a park, is at this time, an expense to the City and the proposed project will obviously replace this expense with a substan- 10 tial income benefit. 3) The remaining park area not involved in this lease will be enhanced and there will be a number of activities as outlined in the analysis by the Rouse Company which will be compatible with the leased area. 4) I have studied the outline of the project and find that the restrictions set forth in the agreement will protect the park -like atmosphere. These restrictions involved a limitation of the height of any building to 57 feet. Also, a new seawall with a walkway along the water- O front through the park. The design of the property shows view corridors through the project so that the Biscayne Bay waters will not be hidden. Clauses in the lease setting forth substantial opportunity for minority's businesses in the project both for construction and lesses will be a benefit to the City. • SAWA Sl" d X64 9mG Ci Page la 5) There will be an annual contract requiring a contribution of $100,000 per annum (minimum) for a minority development foundation which will be a beneficial return to the City. 6) The proposal set forth that the Bayside Specialty Center will purchase and operate the present restaurant known as the Reflections and the marina will be retained. 7) The height limitation of buildings and the limita- tions of 200,000 square feet of new building area will protect the Bayfront Park property from concentrated high- rise developments like Brickell Avenue and other downtown area. Quite obviously, this will make it impractical to evaluate the land involved on the basis of comparison with other lands which are not so restrictive. It is my opinion that these restrictions will however result in intangible returns to the City as previously outlined. saw Stee6 d me& VW. LEGAL DESCRIPTION age 3 BAYSIDE PROJECT E 4 Commence at the intersection of the Southerly RIW line of PORT BOULEVARD (O.R.B. 6811-240 easement to Dade County) with the _ -existing concrete bulkhead on the westerly side of the Miamarina said point also being 373.5 feet more or less west of the former U.S. Harborline along Biscayne Bay; thence Southerly along the said concrete bulkhead 630 + feet to a P.C. thence continue f meandering the said concrete bulkhead of the Miamarina in a southeasterly, northerly and northeasterly direction to the most northeasterly corner of said bulkhead of Marina;, thence t southeasterly 185 + feet to that portion of the existing bulkhead along Biscayne Bay, said bulkhead being the most •easterly bulkhead of the Miamarina; thence southwesterly along existing concrete bulkhead 720 + feet; thence deflect 64 degrees to the right continue in a southwesterly direction 190 + feet; thence deflect 64 degrees to the left run 100 + feet southwesterly; thence deflect 90 degrees to the right run northwesterly 550 + feet; thence deflect 90 degrees southwesterly 30 + feet to a P.C. thence northwesterly along the are of a curve 240 + ftet to a n point; thence west 150 + feet; thence north 230 + feet; thence West 85 + feet; thence North 35 + feet; thence West 70 + feet; thence North 60 + feet; thence West 120 + feet to the Easterly R/W line Biscayne Boulevard; thence Northwesterly along said Easterly RIW of Biscayne Boulevard 300 feet to a point of intersection with the Southerly R/W of Port Boulevard; thence along said southerly RIW of Port Boulevard in an .Easterly direction 610 + feet to the Point of Beginning. Containing 13 + Acres. This legal description has been updated recently and the new legal description which increases the area to 16.3 acres is to be supplied by the City in accordance with the plat facing herewith. Some additional land is included S to provide an entrance to Biscayne Boulevard. r Ott No14tt/1M t:CMNtt:ion Page 3a • ,' i ,[ O. iari.�• �Y_'\f�s`:+±'+2+:'St.e � _rTi.- - t _•.•1 .•a-e..._ .'lti'\.• J ~`�. n.•,.�eq..• iu•{_t:�w•t[•! •O'•� �;`C"r'arY✓ir s':v r A`' *:oi tln:� ...�•'^"'_P O R 1 n v V C.. s NEW—"-�.�--- Av jai C� R � . ,.' cif i,i i��iL -�gY �° 1�7 ,I-�'�•„u��•,�• i. •� t • _J•i' -} _ ''vim J - •�•.'�C=.w!%f/� • „'V! U4 n d u 1Mt1�.MClr4611t kA tiyt} C4 C. } s 7+:J'� l ,- '.` ,J }!�"�,� y� �' Q 'r, i ..`1'y/ J�•-. ant �,{/, h'�'' :a, �` t Q�.'�� ���t� .��t��j��6•«c7,.,�{'ix. '+�! ls"v,rrt `'i7fi � ! '` \j li1i:'4�: u•1r.��7,. 'R i�� � :%1 y � P.!'•"�4 J 4� _; � • � �f.�• jam. t 1;*•pi•.*�. •I-. _'"�•s; .•}�.,•.-.Y�st 'i.! " , •.=!'rkx k .1 _/ram j • iir r. �• i \ 213 IN Ir tk fit <rInCAM.` :.•� '� -�c! ,..., ?` �•�� �� +i} 4.3 J41 ®r®®III '+t,,.J f <j�c`yS,rr ■. "uujj Y x l �} IC•• S I T E P L AN SEPTEMBER 1 983 SCALE 1111 40•- 0' .•- •» BAYSIDE THE R©USE COMPANY page 2 g,EVISED PLAT wtrlrrw ar+Pt o,.tarr/ 1 .'Y :qs �� A% �. YZr'76' Maraca) a I wit. it, HIM AAA I "To t• � % rd t � Ry 1 t I { • i \ , T.'. .t•a . •/'71{,�i� � `"�. `Sig � Zs�\ �1 i�•w..r 'J��''�'\J{ i t •- � t{iti'«`•i: + } 1�'i �r,• Vi �y;�4 ;: q t _ It cl''' i t t� �• I -41 a �. t i � S `��` `.. '�� 'i '• l mt11A a .+... .— • vk ''L v • S .ems Q 4}iR d(�y�'q 2 vt LL i 'yC1�t+r ji*.�eHOy4t4 ,t �r■r:i ••i .! +`r#t �'�.. k ci! ry � � ;11•'_ Oa4�iRZ as.�,a( , t'.It • tettr+•,bt ryQ� Yilt+-�e��. Ni. , t�, �- . �, Q1 $f•104•R'� t♦ t •i •L tt tt n, t� fi « � yirrrra• iC {ffi �'. � q �t+a• ram.„R (' • u r,'�1. ,osts £` •�, ( , i�r —e '� Q tti��"rt�i:n 2 ♦� ' it n• 1 � � =titlOrp`;'3u:.e ......■ { iq '4 )1 ► 4 q h"a a 0„ t • � `fit. • � ■ a ar+rv4r 1MrY�rR Y ■ RV _ p. r?tuai rYsr.Prua■r•a■rw_�+ /t��NY)F-rP tY lardrt2'1YlI 7w �! Cd'YA%�nPY Q � o . a, Q V j is�hp, �r-y�:• it,• " Y N. �x �� �1111}t •trtsw �AA d \4• ate_ :� Q ' • U` Ito Ir Page 4 PROJECT DESCRIPTION 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, Dade County, Florida, which is collectively referred to herein as "Bayfront Park". Bayfront Park is shown on the site plan on the facing page. For the purpose of this lease in Bayfront Park the land consist of 16.3 acres as delineated on the plat on page 2. This description supersedes parcels A-1. A-2 and A-3 on the plat originally supplied to me. In addition to these tracts, the previous plat showed Parcel A-4 (containing 1 acre which was to be a potential site for a light tower) to be built by the City. It is understood that if the tower was not constructed within one year, the lessee had the option to rent this parcel for $5,000 net per annum. In this event an additional .12 acres (designated as Parcel A-5) was to be included at no extra charge. The City is also the owner, in fee simple, of all (� that certain land located immediately north of Bayfront Park and underneath the Port Boulevard Bridge in the City of Miami, County of Dade, State of Florida. 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 parking for the , purpose of the Agreement shall be known as "Area B". By authority of the City of Miami Charter, the City advertised 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. U f� �� SAW a" dr Rew 9ra. r'r Page 5 1 4 ^ Developer submitted a proposal to develop a mix -use project ("Project") to be known as "Bayside Special- ty Center", which will consist of the following: a) A pavilion, containing approximately 84,996 square feet of leasable area on two levels, to be located adjacent to Biscayne Boulevard ("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, located facing North ("South Pavilion"). The South Pavilion will contain fast food markets of ethnic food specialties, estaurants, cafes and specialty retail shops; ' .� c) A market area, containing approximately 44,000 square feet of open plaza and approximately 16,000 square feet of leasable space, located between the North Pavilion and the South Pavilion ("Market Square"). Market Square shall contain a flower mart, produce mart, cafes, fisherman's boat market, and a major water feature; d) A pier park containing (1) a restaurant of approximate- ly 15,000 square feet, (2) a pedestrian park, (3) a ' marina pavilion, and (4) a floating band pavilion to be located adjacent to Miamarina; e) Reflections Restaurant, containing approximately 25,000 square feet; and i f) Promenades, landscaped areas, viewing pavilions, access roads, pedestrian bridges connecting the North Pavilion, South Pavilion and the Amphitheater, and other related amenities. a r, Sl�a�, Slwc�f d ,'�e►w 9�oa. Page 6 The City contemplated that the following improve- ments to Bayfront Park will be made: a) Phased replacement of seawalls and rip rap, and cons- truction of a baywalk with infill and water taxi piers in location. Upon completion of construction of the baywalk and infill, such additional surface area shall be added to and incorporated into Bayfront Park; b) Permanent parking garage containing not less than one thousand two hundred (1,200) parking spaces on three • and one-half levels ("Parking Garage") to be located on the Garage Parcel; and c) Certain other improvements agreed to between City and ,�.] 9 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 the Project and is intended to be an aid to the understanding of this Lease, k but it is not intended to limit the rights or the obliga- tions of the parties except to the extent that it contains definitions and terms which are used elsewhere in the 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. 1 7 9404 SAW d me* Ise. M Page 7 BASIC TERMS OF THE LEASE AGREEMENT The entire lease agreement between Bayside Limited Partnership and the City of Miami has been analyzed and consists of some 103 pages setting forth all of the terms, Obviously, there is no need to reproduce this lease agree- ment in my report and reference is made to the lease now in possession of both participants. In brief the terms are as follows: Lease of Leased Property to Developer Subject to the conditions set forth in this Agree- ment, to the payment of rental provided herein, and the performance of the parties hereto of the duties and obliga- tions on the part of each to performed hereunder: a) Premises. The City demises and leases to Developer, and Developer takes and hires from the City, all of the Area described herewith and more particularly described in the legal descriptions attached hereto on page 3 together with the buildings, structures, improvements and equipment thereon and together with and subject to the restrictions, conditions, convenants and easements hereinafter mentioned, reserved or granted (the "Leased Property"). The City and Developer recognize that the boundaries of the Leased Property may require minor adjustments to accomodate the Improvements contemplated pursuant to the Construction Plans. Should the parties agree a modification is required, Exhibit B-1 to this lease shall be amended accordingly. ;1 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 10 to construct the improvements on Area A-5, this Lease shall terminate as to such Area and same shall be deemed to be included in the Park Site. If Developer elects to construct improvements on Area A-4, such improvements must be substantially in accordance with the design development plans approved by the City ,, Commission and made a part of this Agreement as Exhibit L. ;1 * S&A SA" d R.ilk 94V. Page 8 New structures shall be limited to a maximum height not to exceed that of 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 Leasable Area of New Construction plus a bonus of 42,000 square feet of Leasable Area of new construction to which the Developer shall be entitled upon demolition of the existing Bayfront Municipal Auditorium. The proposed structures within former 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, commen- cing on the first day of the month next following the Possession Date. Within thirty (30) days after the ' Possession Date, the City Manager and Developer, upon request of either party, shall execute one or more written memoranda in such form as will enable them to be recorded among the Land Records of Dade County setting forth the beginning and termination dates of the Original Term, determined in accordance with this Agreement. c) Renewal Term. Developer is granted an option to renew this lease from time to time upon the same terms and conditions, except as otherwise expressly provided, for up to two (2) additional terms (each called a "Renewal Term") of fifteen (15) years each, commencing at the expiration of the Original Term of the previous Renewal Term, as the case may be, and terminating on the fifteenth (15) 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 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 commence- ment 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 _r Agreement. -140 S1" Sly d X6% Var. Page 9 Developer convenants 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 $1,000,000 36-45 As determined below Nothwithstanding 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 "Cumula- tive Credit Balance Account" which credit shall accrue • interest at eleven (11%) percent, compounded annually. The maximum amount to be credited to the Cumulative Credit Balance Account in any Rental Year shall be no greater than the Minimum Base Rental for that Rental Year. In any subsequent Rental Year for which a credit balance exists in the Cumulative Credit Balance Account, the Rental due to the City, shall be reduced, to not less than that Rental Year's • Minimum Base Rental, by an amount applied from the remaining credit balance in the Cumulative Credit Balance Account. This procedure shall continue each Rental Year until the credit balance in the Cumulative Credit Balance Account is reduced to zero. Further, the Minimum Base Rental may, at the City's option, be increased at the beginning of the thirty sixth (36th) Rental Year to an amount equal to the average of the Annual Basic Rental paid during the preceding :z three (3) Rental Years. ii) During each Renewal Term, an annual sum equal to the greater of: 1) The average of the Annual Basic Rental paid during the three (3) consecutive Rental Years prior to the end of the Original Term or the preceding Renewal Term, as the case may be and shall, at the City's option, be the New Minimum Base Rental, or S6" SId" 49 ;%* IN& W Page 10 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 One Million and No/100th Dollars ($1,000,000.00). iii) Developer shall pay during the Initial 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 upon occupancy of Area A-5 pursuant to Section 2.1 hereof. f) Pre -construction Contributions. One the Possession Date Developer shall pay to the City Three Million Six Hundred Fifty Thousand ($3,650,000) Dollars as Additional Rent, 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, �h that such payment may constitute an offset against any damages a court or the Arbitrators may award the City in connection with such Event of Developer Default. The City covenants and agrees to use these funds in fulfillment of the purposes for which the funds are given, as specified below, so long as Developer is not ' in default under the terms of this Agreement: $1 Million - In the form of a letter of credit on terms and conditions and drawn on an Institutional Lender in all respects satisfactory to the City, which shall be delivered on the date hereof and shall provide that the City may present same for payment within thirty (30) days next succeeding the Possession Date utilized by the City in the construction of improvements in Bayfront Park. $2.65 Million -To be paid to the City within fifteen (15) days after request therefor by the City provided that such request ig made no earlier than forty-five (45) days prior to the Possession Date, such funds to be utilized by the City in acquiring all of the rights, title and interest to the Lease Agreement between the City which may exist in favor of the Restaurant Lease tenant and Restaurant Associates Industries as assigned to Miamarina Restaurant. 5&eA, Mu i dr Roo, Sae. ry• G Page 10 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 One Million and No/100th Dollars ($1,000,000.00). iii) Developer shall pay during the Initial 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 upon occupancy of Area A-5 pursuant to Section 2.1 hereof. f) Pre -construction Contributions. One the Possession Date Developer shall pay to the City Three Million Six Hundred Fifty Thousand ($3,650,000) Dollars as Additional Rent, which amount shall be recognized as a �� part of the Development Costs. These payments shall be retained by the City if this Lease is terminated by reason of an Event of Developer Default. Said payment to be in addition to any damages that the City may be entitled to under this Agreement provided, however, ' that such payment may constitute an offset against any -� damages a court or the Arbitrators may award the City in connection with such Event of Developer Default. The City covenants and agrees to use these funds in fulfillment of the purposes for which the funds are given, as specified below, so long as Developer is not in default under the terms of this Agreement: $1 Million - In the form of a letter of credit on terms / and conditions and drawn on an Institutional Lender in all respects satisfactory to the City, which shall be delivered on the date �-� hereof and shall provide that the City may nresent same for payment within thirty (30) days next succeeding the Possession Date utilized by the City in the construction of improvements in Bayfront Park. $2.65 Million -To be paid to the City within fifteen (15) ^ days after request therefor by the City provided that such request is made no earlier than forty-five (45) days prior to the Possession Date, such funds to be utilized by the City in acquiring all of the rights, title and interest to the Lease Agreement ^ between the City which may exist in favor of the Restaurant Lease tenant and Restaurant Associates Industries as assigned to Miamarina Restaurant. •� sa" SAW d Roo, 9N& P, • • • u • • • • Page 11 The Developer shall not be obligated to deliver such letter of credit or make such payment if the City shall not have budgeted and encumbered the amount of Four Million and No/100th Dollars ($4,000,000) by Resolution of the City Commission, authorizing the City Manager to pay such monies in fulfillment of this Agreement, and encumbered in the City's account or accounts, which monies shall constitute the City's Contribution to Infrastructure. Such funds shall be disbursed to Developer as construction of such infra- structure progresses pursuant to a mutually acceptable disbursement procedure based upon certified draw requests to the City from the 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 Facilitie or any benefits have terminate and are no longer in force and 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. At any time that a Lender is in possession of the Premises 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. S", se,w d Riw 9av, wij Page 12 r PARKING LOT AGREEMENT A complete copy of the terms and conditions of the ground lease has been studied and a copy of the lease is in the possession of the City of Miami so it is not necessary to included this lease herewith. In brief the terms are as follows: The City and the developer have agreed that a permanent multi level parking garage containing not less than 1,200 parking spaces will be constructed, maintained and operated on that portion of the lease premises as described in Exhibit A-1 identified as garage space, plus a surface parking area containing approximately 200 parking spaces described on Exhibit A-2 herewith. 0 DOSP Ownership of Parking Garage Developer acknowledges and agrees that notwith- standing the fact that Developer will construct the Parking Garage Parcel (which constitutes a portion of the leased premises) pursuant to the terms and conditions of this agree- ment and the construction contract, DOSP shall, subject to the provisions of the Developer Option be vested with absolute fee title to the Parking Garage and all of the fixtures, furnishings, equipment and other items of personal property therein contained. DOSP Riqht to Use Garage Parcel Subject to the terms and conditions hereof, and of the Ground Lease, Developer grants unto the City, DOSP, their respective officers, employees and agents the exclu- sive right and easement to construct, maintain, operate, repair and replace the Parking Garage upon the Garage Parcel and the Additional Parking Area at the Additional Parking Parcel. Necessary easements for ingress and egress will be provided. Developer Compensation DOSP shall pay Developer a fee for designing and engineering the Parking Garage. 0 SA" Slept it ,'pep, 9N& Page 13 r Distribution of Positive Cash Flow Positive cash flow earned is basically 50% to the DOSP and 50% to the Developer after certain provisions during the 1st, 2nd and 3rd year of the lease as set forth on pages 39, 40 and 41 of the lease. Option to Purchase The lease contains an option to purchase after the revenue bonds are retired at a nominal amount as set forth in pages 60 and 61 of the lease. • • • • • Q r Page 14 VALUATION CRITERION I have studied this proposal which set forth the qualifications and experience of the Rouse Company. I have known the Rouse Company for many years and I am aware of their unusual qualifications in this particular area of activity especially in regard to downtown retail projects and specialty centers. This experience covers a period of many years and includes developments known as the Fanuel Hall Marketplace, Harborplace, South Street Seaport, Gallery in Philadelphia, Santa Monica Place in Santa Monica, and the Grand Avenue in Milwaukee. The Rouse Company is currently involved in a number of similar downtown projects which are under construc- tion in St. Louis, Washington D.C. and Denver and in my opinion they are the most experienced and reliable developers in the country. Their qualifications are covered in details in the evaluation criterion already submitted to the City and it is lb not necessary to repeat this information herein. The fact that the return to the City is based upon the net income, requires a considerable confidence in the developer as to capability and integrety. I have studied the projection of income and expenses estimated by the Rouse Company and because of their obvious abilities and previous successes, I feel it is a reasonable projection to be used in calculating what may be considered a fair return to the City of Miami from all considerations, including monetary and other factors. Not to be ignored in consideration of this project is the capability and experience in the negotia- tions of mortgage financing. Many developments succeed or fail in this respect. i C J 0 Sd" S& d Re* 170& 46 Page 15 ECONOMIC ANALYSIS On page 17 I have included a projection by Mr. Iaconis which is a financial retail projection for the City of Miami based upon the agreed terms as set forth in the lease, namely minimum guaranteed as follows: FULL RENTAL YEARS MINIMUM BASE RENTAL 1-2 $325,000 3-6 $650,000 7-35 $1,000,000 36-45 As determined This is a 45 year projection showing the net available for distribution each year. I have also studied the financial retail projection prepared under Alternative A and B by the Rouse Company. Alternative A shows a base rent of $250,000 per year, plus 35% cash flow after all debt service and a 10% non -equity return. A second projection shows a projection of $350,000 base rent, plus 15% cash flow • after all debt service and 10% non -equity return. The minimum guaranteed as I understand it has been agreed upon in accordance with Iaconis' projection. This obviously increases the income to be derived from the first 10 years. • In analyzing the income stream, which will produce the income to the City, I have 20 net used a year projection which conforms with the projection made by Mr. Iaconis in Column "S". I have also studied a 10 year projection made by the Rouse Company which, however, was based upon a different 0 minimum guaranteed from a previous proposal. It would appear that Mr. Iaconis' analysis is a reasonable predic- tion, however I have come to my conclusion on the basis of the present worth of the first 20 year income stream, plus the value of the reversion at the end of 20 years. Using a 10% equity yield rate, this totals to a value of 0 $21,552,000. It is to be observed that I have not worked into the projection the effect of mortgage financing since I understand it has not yet been consummated. • A 9404 51ft4 d WAK *;W- Page 16 I have already observed that the income projection is based upon the volume of business in the individual stores and restaurants and have stated that the square foot volume of sales conforms with the pattern of other specialty centers operated by the Rouse Company in Boston, New York, Baltimore and other places. PER SQUARE FOOT SALES PROJECTIONS + SATSIOE SPECIALTY CENTER 1986-1996 1CURAENT DOLLARS) SQUARE AVERAGE ANNUAL MERCHANDISE CATEGORY FOOTAGE 1986 1937 1985 1989 1990 1991 1941993 1994 1996 PERCENT CHANGE . .1995 FOOD REST./CAFE/BAR 75,000 $565 $611 5611 1727 S 783 S $41 S 900•+ 1 959 $1.021 $1,t53 $1,153 7.4% FAST FOOD 25,000 $725 '1795 3667 5941 11,019 11,101 $1, 35 $1,274 $1,365 51.563 $1,563 8.0% MARKET FOW 3,500 5600 S653 $707 5759 S 812 S 8" 1 922' S 900 $1,045 51,181 $1,161 7.017 FL04ERS/PlIDUCE 6,500 5420 US$ 5490 S525 S 562 S 600 3 639 - S 679 S 720 S 809 S 809 6.6% RETAIL • i GENERAL RETAIL 75.000 5495 1537 5579 $622 S 667 5 '116 5 767 {'S 820 1 876 1 935 S "11 7.31 BULL MARKET 15.000 $600 $654 5710 $766 5 824 S ass S 949 t $1,018 51.091 $1,163 51,250 7.6% PROJECT SUBTOTAL/AVERAGE 200,000 1557 $607 $659 5711 5 7" 3 122 S B81 S 942 $1.006 $1.073 $1.143 7.6% RESTAURANTS IN t FaWER REFLECTIONS 35.000 S350 $360 $412 $447 S 478 S 512 S 540 : S 586 5 627 S 671 S 716 7.4i • PROJECT TOTAL/AVERAGE 235.000 5526 SS73 $622 $672 1 723 S 776 S 652 _3 8s9 5 949 51,013 51,079 7.4% Y • To this figure must be added the income to be paid by the City from the parking agreement as outlined in the lease which shows that 50% of the net available for distribu- tion will follow the pattern on page 68 of the Bayside Specialty Center proposal reproduced herewith. Mr. Iaconis did not make an analysis of the garage project. The lease provides an option to purchase the garage at the time when the revenue bonds are paid off. This date is indefinite at this time, so that the 10 year projection with a reversion appears adequate. The Rouse projection includes the amount of taxes from the specialty center and parking which starts at $1,175,000 in 1987 and increasing to $1,985,000 in 1996. Obviously, this additional income will be shared by Dade County and the City of Miami on the basis of the respective mill rate. 0 3Geafi, 54"A 4f X.* 176. .................. ...... ................ .................................................................f.........f......... ........ ' CITY OF MIAMI - BAYSIDE PROJECT B:BAY-I1Ct FINANCIAL PROJECTIONS OF ANNUAL RENTAL TO THE CITY en..fY1e0� AS OF MAY 22, 1984 �dou•I ..f■f. ... f.... ....... ...■..■.....■.....f.................. ■..■... .............. .......... f.............. a ..... ■.."...............■... (A) IB) (C) ID) IE) IF) IG) IH) II) PROJECTED ANNUAL PERCENT NET CITY'S PERCENT PERCENT TOTAL PERCENT GROSS CITY'S OF BASE AVAILABLE PARTICIPATION OF OVER OF OVER ANNUAL OF TOTAL RENTAL INCOME BASE RENT RENT TO FOR IN NET INCOME BASE RENT BASE RENT CITY INCOME YEAR YEAR (1) {2) GROSS DISTRIBUTION OVER BASE RENTAL TO GROSS TO NET AVAIL INCOME TO GROSS ---- ------ -------- --------- (8/A) ------- ------------- (E/A) (E/D) (H/A) 1986 0 3,233 163 5% ---------------- -379 0 --------- Ot ------------ Olt -------- 163 -------- 51 1967 1 14,797 325 21 124 0 01 Ot 325 21 198E 2 16,398 325 21 556 0 o1 01 325 21 1989 3 17,797 650 41 970 0 01 Ot 650 41A 1990 4 19,083 650 31 1,440 0 of Ot 650 3t 1991 5 20.467 650 31 1,942 30 Ot 21 650 3% 1992 6 21,"6 650 3% 2,479 218 is 9% 650 31 1993 7 23,560 11000 41 2,789 0 01 01 1,000 41 1994 8 25,28E 1,000 4% 3,401 190 11 61 1,000 41 1995 9 27,14E 1,000 41 4,055 419 21 101 1,000 41 1996 10 29,151 1,000 31 4,753 663 21 14t 1,000 30 1997 11 31,483 1,000 31 5,664 992 31 171 1,266 41 1998 12 34,002 1,000 31 6,647 1,327 41 201 2,327 71 1999 13 36,722 1,000 3% 7,710 1,698 51 22% 2,698 71 2000 14 39,660 1,000 31 8,857 2,100 51 241 3,100 81 2001 is 42,632 1,000 2% 10,096 2,534 60 25% 3,534 8t 2002 16 46,259 1,000 21 11,435 3,002 61 26% 4,002 91 2003 17 49,960 1,000 21 12,880 3,508 71 271 4,508 91 2004 28 53,956 1,000 21 14,441 4,054 8t 28% 5,054 91 2005 19 58,273 1,000 21 16,127 4,645 81 29% 5,645 101 2006 20 62,935 1,000 21 17,948 5,282 8i 291 61282 10% 2007 21 67,970 1,000 it 19,914 5,970 91 304 6,970 100 2008 22 73,407 1,000 It 22,038 6,713 91 301 7,713 lit 2009 23 79,290 1,000 It 24,332 7,516 91 311 8,516 lit 2010 24 85,622 1,000 21 26,809 8,303 101 311 9,303 lit 2011 25 92,472 1,000 it 29,485 9,320 lot 321 10,320 lit 2012 26 99,870 11000 11 32,374 10,331 10% 32% 11,331 lit 2013 27 107,859 1,000 It 35,494 11,423 11% 321 12,423 12% 2014 28 116,488 1,000 It 38,865 12,603 lit 32% 13,603 121 2015 29 125,807 1,000 is 42,504 13,877 lit 331 14,877 12% 2016 30 135,872 1,000 It 46,435 15,252 lit 334 16,252 12% 2017 31 146,741 1,000 it 50,681 16,738 lit 33t 17,738 121 2016 32 159,481 1,000 it 55,266 18,343 121 331 19,343 12% 2019 33 171,159 1,000 It 60,218 20,076 121 331 21,076 12% 2020 34 184,852 1,000 1t 65,566 21,948 12% 33% 22,94E 12% 2021 35 199,640 1,000 It 71,342 23,970 12% 341 24,970 131 2022 36 215,611 22,998 lit 61,081 0 Ot 01 22,99E lit 2023 37 232,860 22,998 101 67,819 738 Ot It 23,736 lot 2024 38 251,469 22,998 91 75,095 3,285 it 41 26,283 10% 2025 39 271,608 22,998 8% 82,953 6,035 2% 7% 29,033 lit 2026 40 293,337 22,998 81 91,439 9,006 31 10% 32,004 lit 2027 41 316,803 22,999 7% 100,605 12,214 41 12% 35,212 lit 202E 42 342,148 22,998 71 120,504 15,678 51 14% 38,676 lit 2029 43 369,520 22,998 61 121,195 19,420 51 16% 42,41E lit 2030 44 399,081 22,998 6% 132,741 23,461 6% is% 46,459 12t 2031 4S 431,008 22,99E 5• 145,211 27,826 6% 19% 50,824 12% ------- -------- -------- -------- -- ----- -------- AGGREGATE VALUE OF CITY'S ANNUAL INCOME $610,935 b PRESENT VALUE OF CITY'S ANNUAL INCOME 1 101 $30,401 _ (1) Based on Rouse Proposal through 1996, and 81 increase thereafter. ou (2) Base Rental is increased in Year 436 to the Average of the previous three years. Page 19 ROUSE COMPANY PROJECTION - PXRK1140 ra F1M SAX= . tfIItAtt^.m ?FMp Itt a PAAd3C M MR VECM AID c'XFC= PPOTr==l 1989 PFC mFtt1 4711 QM FER SPACE 1986 1967 1988 1989 1990 1991 1992 1993 1994 1995 to aFao1£ 46 CitJ65 Pomr. F;E`i:r AE 2.59 616 2662 2875 3105 3291 34" 3698 39M r155 wo *0 CTHM Qj=M 1) 0.17 s0 2W 200 2m 200 2D0 200 200 2m 2L'0 2m =AL IICZ£ 2.75 666 2862 3D75 3305 3491 36% 300 4120 t355 460 4869 1>aWM • CFI MX; EMENMS O.ts 1CR 463 500 PC s73 '384 60T 64r 682 723 767 eta iFJIL =A= TA7OS (2) 0.32 61 342 363 407 432 40 485 $14 Sts 5" =AL FZM= O.T7 166 805 863 925 900 t039 1101 1167 1231 t312 1390 W AVAL FDA CMr MN= 1.98 4". M57 2212 23M 2511 2650 2M 2953 3118 3293 3rt0 • 3 CAM CF D=1r.gr3n. G (am's OZ=) 4t11 Cn1. 1986 19% 1988 1999 1990 1991 1992 1993 1994 199s 1996 WU AVAII. FDA DWr SCE 4" 2031 2212 2390 2511 25M ZM 2953 3118 3293 3Kle • cm am= ::_M :-jm% 162r 182r 1824 tan 1820 182r 182r t824 1=4 tit AVAIIA3 E FDA DLTf11131MG 22 �233 358 936 687 826 913 1129 12P 1A69 1654 SOS TO CFI? brig? PAFKVC MnH)R Z! 11 116 1" 2" art 413 4% %4 647 TA 62P 53 TO TWJPAF02E36 11 116 194 •29d 344 413 4m 564 647 734 an (1) nnWm= URAD a ME= wD FIRM (2) 2 CAP= LUX 13 S771A..�1. = SUCAM ;0 AFJO= ftFKDC 1FJL M FDL E== TAMS W 2E S7S1g7G = 0 if %V .. L%: "; E FINANCIAL PROGRAM + RETAIL s i e Page 19 YEAR INCOME EXPENSE = NET INC. - MORTGAGE = CASHFLOW X FACTOR = PRES.WORTHI ---------rr--r---------------r-------r------------r------�-r----------rr --- rr W.I. ii IYT 1 325 0 325 0 325 .9091 2 325 0 325 0 325 .8264 3 650 0 650 0 650 .7513 4 650 0 650 0 650 .6830 5 650 0 650 0 650 .6209 6 650 0 650 0 650 .5645 7 1000 0 1000 0 1000 .5132 1000 0 1000 0 1000 .4665 4 1000 0 1000 0 1000 .4241 10 1000 0 1000 0 1000 .3855 11 1266 0 1266 0 1266 .3505 12 2327 0 2327 0 2327 .3186 13 2698 0 2698 0 2698 .2897 14 3100 0 3100 0 3100 .2633 15 3534 0 3534 0 3534 .2394 16 4002 0 4002 0 4002 .2176 17 4508 0 4508 0 4508 .1978 18 5054 0 5054 0 5054 .1799 19 5645 0 5645 0 5645 .1635 20 6282 0 6282 0 6282 .1486 THE PRESENT WORTH OF THE PROJECTED CASH FLOW IS LAST YEAR NET INCOME 6282 CAPITALIZED AT 10 EQUALS THE JECTED RESALE PRICE IN 20 YEARS 62820. LOSS MORTGAGE BALANCE IN 20 YEARS 0. NET CASH REVERSION AT THE END OF 20 YEARS WILL BE 62820. TIMES THE REVERSION FACTOR FOR 20 YEARS .148644 PRESENT WORTH OF (CASH FLOW + REVERSION) = EQUITY PLUS THE MORTGAGE BALANCE AT BEGINNING OF THE PERIOD INDICATED VALUE WITH 10 % EQUITY YIELD RATE C OVERALL RATE (FIRST YEAR NOI/VALUE) = 1.50801 % Li EQUITY DIVIDEND RATE (1st YEAR CASH FLOW/EQUITY)= 1.50801 % Projection by Theodore W. Slack and figures by Mr. Iaconis. Sl." 5" a ;Qiw 9ay. 296 269 488 444 404 367 513 467 424 386 444 741 782 816 846 871 892 909 923 934 12214. 9338. 21552. 0. $21,552. ,L. FINANCIAL PROGRAM - ftTA1L age 19 s i e YEAR INCOME EXPENSE = NET INC. - MORTGAGE = CASHFLOW X FACTOR - PRES.WOR'i`(#{ - rrrr.�r..r..rr-----r---------------------r�iY - - - - - r - - - - - - - - - - - - - - - - - - - - - - - - - - - - r r - 1 325 0 325 0 325 .9091 295 2 325 0 325 0 325 .8264 269 3 650 0 650 0 650 .7513 488 4 650 0 650 0 650 .6830 444 5 650 0 650 0 650 .6209 404 6 650 0 650 0 650 .5645 367 7 1000 0 1000 0 1000 .5132 513 1000 0 1000 0 1000 .4665 467 1000 0 1000 0 1000 .4241 424 10 1000 0 1000 0 1000 .3855 386 11 1266 0 1266 0 1266 .3505 444 12 2327 0 2327 0 2327 .3186 741 13 2698 0 2698 0 2698 .2897 782 14 3100 0 3100 0 3100 .2633 816 15 3534 0 3534 0 3534 .2394 846 16 4002 0 4002 0 4002 .2176 871 7 17 4508 0 4508 0 4508 .1978 892 18 5054 0 5054 0 5054 .1799 909 19 5645 0 5645 0 5645 .1635 923 20 6282 0 6282 0 6282 .1486 934 THE PRESENT WORTH OF THE PROJECTED CASH FLOW IS 12214. LAST YEAR NET INCOME 6282 CAPITALIZED AT 10 EQUALS THE AJECTED RESALE PRICE IN 20 YEARS 62820. SS MORTGAGE BALANCE IN 20 YEARS 0. e NET CASH REVERSION AT THE END OF 20 YEARS WILL BE 62820. TIMES THE REVERSION FACTOR FOR 20 YEARS .148644 9338. " PRESENT WORTH OF (CASH FLOW + REVERSION) = EQUITY 21552. PLUS THE MORTGAGE BALANCE AT BEGINNING OF THE PERIOD 0. INDICATED VALUE WITH 10 $ EQUITY YIELD RATE $21,552. OVERALL RATE (FIRST YEAR NOI/VALUE) = 1.50801 % EQUITY DIVIDEND RATE (1st YEAR CASH FLOW/EQUITY)= 1.50801 % Projection by Theodore W. Slack and figures by Mr. Iaconis. `h.,. Page 20 FINANCIAL PROGRAM -- PARXING (000's Omitted f t • YEAR INCOME - EXPENSE = NET INC. - MORTGAGE = CASHFLOW X FACTOR = PRES.WORTRf ---------------------------------------------------------------------.--------..... i 1 116 0 116 4 116 .9091 105 2 194 0 194 0 194 .8264 160 3 278 0 278 0 278 .7513 209. • 4 344 0 344 0 344 .6830 235 5 413 0 413 0 413 .6209 256 6 486 0 486 0 486 .5645 274 �7 564 0 564 0 564 .5132 289 '• �8 647 0 647 0 647 .4665 302 9 734 0 734 0 734 .4241 311 • 10 827 0 827 0 827 .3855 319 THE PRESENT WORTH OF THE PROJECTED CASH FLOW IS 2462. 1 ._ LAST YEAR NET INCOME 827 CAPITALIZED AT 10 EQUALS THE tl • PROJECTED RESALE PRICE IN 10 YEARS 8270,. *.PSS MORTGAGE BALANCE IN 10 YEARS 0. NET CASH REVERSION AT THE END OF 10 YEARS WILL BE 8270. � TIMES THE REVERSION FACTOR FOR 10 YEARS .385543 3188. • PRESENT WORTH OF (CASH FLOW + REVERSION) = EQUITY 5650. PLUS THE MORTGAGE BALANCE AT BEGINNING OF THE PERIOD 0. INDICATED VALUE WITH 10 1 EQUITY YIELD RATE $5,650. f i OVERALL RATE (FIRST YEAR NOI/VALUE) = 2.05302 % • EQUITY DIVIDEND RATE (1st YEAR CASH FLOW/EQUITY)= 2.05302 $ • Projection by. Theodorg W. Slack and figures by the Rouse Company. Page 21 COMMENTS ON ADDITIONAL INDECES OF VALUE It happens that I had appraised the property involved in a transaction between the City of Miami and the Federal Government represented by the Army Engineers as of March 25, 1982. This property was described as the Bayfront Park Walk which immediately adjoins the Bayside Project to the south. This transaction was estimated to have a value of $30.00 per square foot, when filled to grade, by the engineers. Of course, there was no economic analysis possible for that project and my estimate of value was based on a comparison with unrestricted downtown and Brickell Avenue land sales which were to be developed with high-rise office buildings and hotels. This figure was, I believe, accepted by the City and Federal authorities as a basis of transaction. As previously stated, it is very difficult to make the necessary substantial adjustments for the subject property as compared to the recent transactions on Biscayne Bay or Biscayne Boulevard. However, it is interesting to note, that the floor area ratio of private property sales in the downtown area permit the erection of large buildings on much smaller land tracts. Illustrations of this situation are listed below: SUBJECT PROPERTY Land Area - Bldg. Area - Bldg. to Land Ratio - MIAMI CENTER Location - • Land Area - Bldg. Area - Bldg. to Land Ratio - 16.3 acres or 710,028 sq.ft. 57' height - 420,000 sq.ft. .60 Chopin Plaza and Biscayne Boulevard 236,030 sq.ft. 1,975,384 sq.ft. 8.37 DUPONT BUILDING • Location - 169 East Flagler Street, Miami Land Area - 50,750 sq.ft. Bldg. Area - 319,000 sq.ft. Bldg. to Land Ratio - 6.29 • 0 Sl&a&, S& dr R" 96r. • Page 22 BRICKELL CONCOURSE Location - Land Area - Bldg. Area - Bldg. to Land Ratio WHOLESALE MART BUILDING 1401 Brickell Avenue 88,226 sq.ft. 182,500 sq.ft. 2.07 Location - 22 N.W. 1st Street Land Area - 13,200 sq.ft. Bldg. Area - 53,675 sq.ft. Bldg. to Land Ratio - 4.07 It is quite obvious that the existing large office buildings' ratios will provide a much greater income to the land because of the ability to build according to these ratios. In passing, these four items and a number of other sales indicated that land values are from $150.00 to $200.00 per square foot. Since the subject property"will have only 420,000 square feet of building area as compared to 16.3 acres of land, it is very clear that the land value per square foot must be substantially less. Of course, the subject property is a specialty type shopping center and we have in my office appraised a good many shopping centers. A study of the land values and ratios of shopping centers reveals the fact that the shopping centers require a large amount of land in relation to the building sizes. Following are five illustrations of various shopping centers. BISCAYNE SHOPPING PLAZA Location - Biscayne Boulevard and 79th Street Land Area - 17.82 acres - 776,239 sq.ft. Bldg. Area - 315,132 sq.ft. Bldg. to Land Ratio - .41 KENDALL MARKET PLACE Location North Kendall Drive at S.W. 117 Ave Land Area - 5.91 acres - 257,439 sq.ft. Bldg. Area - 52,240 sq.ft. Bldg. to Land Ratio - .20 Sly Su" &;V^ gm. Fl u - > . Page 23 INVERRARY BOULEVARD PLAZA Location - Lauderhill - Inverrary Boulevard Land Area - 4 acres - 174,240 sq.ft. Bldg. Area - 44,000 sq.ft. Bldg. to Land Ratio - .25 127th STREET SHOPPING CENTER Location - Biscayne Boulevard at 127th Street Land Area - 11.81 acres - 514,443 sq.ft. Bldg. Area - 163,000 sq.ft. Bldg. to Land Ratio - .32 THE CROSSINGS SHOPPING CENTER Location - Northeast corner of S.W. 132nd Avenue and 112th Street Land Area - 11.02 acres - 480,031 sq.ft. Bldg. Area - 104,831 sq.ft. Bldg. to Land Ratio - .22 It will be noted that the building to land ratios run in the neighborhood of .20% to .41% which is quite a bit smaller than the subject property. I am quite aware of per square foot prices of land in these various centers which run from $5.00 to $10.00. The income to be derived from these shopping centers is based usually upon a minimum guaranteed against percentage of sales. The predicted sales in the subject property per square foot prices, based on the A Rouse Company experience, is much greater than the sales per square foot in the "run of the mill" centers. Based upon the foregoing analysis, both economic and comparative, it is my opinion that the "City will receive a fair return from the Bayside Project" and it would appear that land involved in the lease has an indicated value of about $38.00 per square foot. As already observed, the considerable additional benefits to the City should prove to make this avery = desirable project for the City of Miami. M L-A S14A 54" d Rod6 94e. L • • u • • QUALIFICATIONS OF APPRAISER THEODORE W. SLACK, MAI, ASA EDUCATION: Addenda A Graduate, Tufts College, Boston, Mass., BS Degree Graduate work, Suffolk Law School and Boston University, Boston, Mass. EXPERIENCE: Over fifty years experience in sales, management, leas- ing and appraising of all forms of real estate in New England and in Florida. Qualified in Superior Court in Hartford, Conn. and in Miami, Fla.; also various district and circuit courts. AFFILIATIONS AND OFFICES HELD: Past President, South Florida Chapter, Institute of Real Estate Management Past President, Hartford, Conn. and Miami, Fla. Real Estate Boards Past Vice President, National Association of Real Estate Boards Past Vice President, American Institute of Real Estate Appraisers, South Florida Chapter Past Member, Board of Governors, Florida Association of Realtors Past President, Senior Member and Director, American Society of Appraisers Instructor of Appraising, Federal Savings & Loan League Associate Director, Miami Chamber of Commerce Civic Affairs Committee, 1955 Director, Royal Trust Bank of Miami Past Member of Board of Directors of Miami Board of Realtors Registered Real Estate Broker in Florida Member, Miami Board of Realtors The American Institute of Real Estate Appraisers conducts a voluntary program of continuing education for its designated members. MAIs and RMs who meet the minimum standards of this program are awarded periodic educational certification. I am currently certified under this program. Resident of Miami, Florida since 1943. Addenda B HIGHEST AND BEST USE Definition from Real Estate Appraisal Terminology, by the American Institute of Real Estate Appraisers and the Society • of Real Estate Appraisers: "That reasonable and probable use that will support the highest present value, as defined, as of the effective date of the appraisal. Alternatively, that use, from among reasonably probable and legal alternative uses, found to be physically possible, appropriately supported, financially feasible, and which results in highest land value. The definition immediately above applies specific- . ally to the highest and best use of land. It is to be recognized that in cases where a site has existing improve- ments on it, the highest and best use may very well be determined to be different from the existing use. The exist- ing use will continue, however, unless and until land value in its highest and best use exceeds the total value of the property in its existing use. Implied within these definitions is recognition of the contribution of that specific use to community environ- ment or to community development goals in addition to wealth maximization of individual property owners. Also implied is that the determination of highest and best use results from the appraiser's judgment and analy- tical skill, i.e., that the use determined from analysis represents an opinion, not a fact to be found. In appraisal practice, the concept of highest and best use represents the premises upon which value is based. In the context of most probable selling price (market value) another appropriate term to reflect highest and best use would be most probable use. In the context of investment value an alternative term would be most profitable use." • • Sr." 56" dr ;R6& 9«w L, • Addenda C LIMITING CONDITIONS OF APPRAISAL Unless otherwise stated, this appraisal is subject to the following conditions: • Information as to the description of the premises, as to the physical' features of the property appraised has been submitted by the purchaser of this appraisal and assumed by us to be correct; and from personal inspection and investigation is believed to be correct by us. Informa- tion is on file in our office, 1620 West Flagler Street, • Miami, Florida, and is available to person or persons to whom this certificate is issued. 00 Responsible ownership and competent management are assumed. • It is assumed that title to said premises is good, and that there are no restrictions as to its use, and that the description of the premises correctly designates the boundary lines. No survey of said property has been inspected by the appraisers, however, the appraisers have made no survey of the property and assume no responsibility in connection with such matter. The appraisal is of the date specified and covers the premises described only. • Neither all nor any part of the contents of this report shall be conveyed to the public through advertising, public relations, news, sales or other media, without the written consent and approval of the author, particularly as to the valuation conclusions, the identity of the appraiser or firm with which he is connected, or any reference to the American Institute of Real Estate Appraisers, or to the M.A.I. designation. The values for the land and improvements contained in this report, are constituent parts of the total value reported, and neither is to be used in making a summation appraisal by combination of value created by another .apprai- ser. • SWA S14W it ,Yia 1W. Addenda C - cont. i Either is invalidated if so used. The current pur- chasing power of the dollar is the basis for the value i reported. The appraiser(s) herein, by reason of this apprai- sal, shall not be required to give testimony or attendance in court or at any governmental hearing with reference to • the property in question, except as agreed upon. This appraisal is presented as a complete, bound report, and may be considered valid only so long as it is ,O presented in its entirety and all pages listed in the Table of Contents are present, and the appraiser's signature is • accompanied by a raised seal. The information identified in this report as being furnished by others is believed to be reliable, but no responsibility for its accuracy is assumed. a 0 5" S" if R" 941r. Addenda C - cont. CERTIFICATION I have made a careful study of the subject proper- ty and have personally inspected same. I hereby certify that to the best of my knowledge and belief, the statements of fact contained in this apprai- sal report, upon which the analyses, opinions and conclu- sions expressed herein are based, are true and correct. I have no personal interest or bias with respect to the sub- ject matter of this appraisal report or the parties involv- ed. I have no present or contemplated future interest in the real estate which is the subject of this report. This appraisal report sets forth all of the limit- ing conditions imposed by the terms of my assignment or by the signer(s) affecting the analyses, opinions and conclu- sions contained in this report. No one other than the signer(s) prepared the analyses, opinions and conclusions concerning real estate which are set forth in the appraisal report. I certify that the reported appraisal estimates and/or opinions are limited only by the reported qualifying conditions, as of the reported effective appraisal date, are my personal, unbiased, professional opinions and I certify that I have no present or contemplated financial interest in the appraised property. The appraisal and this report have been prepared in conformance with and are subject to, the requirements of the Code of Professional Ethics and the Stan- dards of Professional Practice of the American Institute of Real Estate Appraisers. I am certified under the AIREA voluntary continuing education program. I do not authorize the use of my name, the name of my firm, or my M.A.I. desig- nation for publicity in connection with any effort to market the appraised property. I do not authorize any out of con- text quoting from or partial reprinting of this report for public dissemination. $404, Sly it ROA 9W. _ Addenda D �l Ats N • ''� w BICENTENNIAL �•«'� `1 It •� 'PARK 1 .1D ......... .... i o} e i . � ;�• F.E.C. TRACT. n (---�] � `"ram � • tJ3 ORT 16. 9-— "4r_ �� � ` ( ' j �•• , till U A M I N r M I a~ 1 t 1 V E E • S I T E L O C A T I O N P L A N SEPTE161SER 1983 SCALE 100'-0' BAYSIDE THE ROUSE COMPANY Addenda D - Cont. 0 0 0 F.* E. C. T R A CT 7-- zze SYMBOLIC GATEWAY BEACON TO INTRACOASTAL WATERWAY PIER PARK PRESERVES OPEN I VISTAS TO BISCAYNE BAT 4w 1% : C�j PIER PARK VISUAL IMAGE', TRACT w I MARKET BUILDINGS — INVITE PEDESTRIANS TO MARINA S_ I tail VISIBILITY TO WATER F.-E.C. TRACT AREA POTENTIAL OVERFLOW URFACE PARKING 250 CARS At AREA A-2 MAXIMUM HEIGHT OF ALL NEW :CONSTRUCTION 57 FT. ABOVE MEAN WATIgi',4 LEVEL,, ZAA• AREA A-3: --�-PROPOSED.- SUILDING FOOT PRINT IS.91 ACRES' ' (2.06 ACRES ALLOWED)'; 14111,61j',: ul�: 10 SANITARY FORCE MAIN NO FOUNDATION OR STRUCTURE FALLSP WITHIN io Fr. OF THE 00 CENTER LINE OF THE FORCE MAIN J INTEGRATION WITH NATURAL LANDSCAPE COMPLIANCE WITH R.F.P. LIMITATIONS 0 CONCEPT DIAGRAMS BAYSIDE THE ROUSE COMPANY Addenda D - Cont. 0 110 F.E.C. TRACT .FUTURE ACCESS TO j0jj;..' URE ' lqj PROPOSED ­4 0• OPEOPLE-MOVER ! STATION AND o,�� PEDESTRIAN BRIDGE zl:: L BAYslbii�,-. e IL — CONTINUATION A N D - ENHANCEMENT OF EXISTING �7�, �: .'�BC�k1.O`IJ'f ., WATERFRONT PROMENADE PUBLIC ACCESS TO WATERFRONT F:E.C. TRACT it • Cots c"01 o* Q POTENTIAL s OVERFLOW SURFACE PARKING Lo ..n j 250 CARS IV 0— PARKING 1200 CARS3 et ENTRANCEt, BAY DRIVE TO PARKING, DROP-OFF; E r% AND SERVICE _.. T -PICK-UP "t. DRIVE 4 A.! BUS DROP-OFF!-' �Av PROPOSED GRANDF -7- PRIX COURSE!,` S 0 &WIT A SERVICE F.E.D.T.RACT OT OPEN PEDESTRIAN R - - - - - - - CIRCULATION INTEGRATES PROJECT WITH EXISTING PARK. MARINA AND CBD AYS105" x1l tEA Y ACCESS TO ANO -1 -FROM PROPOSED - AMPHITHEATER T . PUBLIC PEDESTRIAN ACCESS F.E.C. TRA-CT LIP 4w BAYSIDEF'... MARKET SQUARE A CIVIC PLAZA FOR THE ENJOYMENT OF THEPUBLIC V -.711 VEHICULAR ACCESS / GRAND PRIX MARKET SQUARE / CIVIC PLAZA CONCEPT DIAGRAMS BAYSIDE THE ROUSE COMPANY Addend& E - FORMER PLAT BICENTENMAL PARK • [[[ DEEP -WATER BLIP Lli C BISCAYNE BAY �t» rtlrr ►oars Wt F.EC. TRACT I i • �0i t le ^ AREA A-2 r (j - "°•o.,.,k��•.,� .urrww•.rrq i� � +4c' • k& sn lrnan AUDIT RIVIA j I I . ` MARINA MIA ,« �� — —... 0 K t '. �•rtl`� ( •t.�.cuo.. ILL M $Tull ' AREA A-3 �� AREA A-1 rft.uuMv'a-me CENTRBUSINESS DISTRICT AL .rn.na.,aa 0 �� s uaur BAYFRONT PARK 0 t AREA '"'pt j • - _. .w/n rota CITY OF MIAMI A A-4 �p i somo I i t/ BAYSIDE SPECIALTY CENTER . sunuca of 0000IOWN KV9L4Wraa1 ""-I - Cla 1: PROGRAM SUMMARY laymt THt RotM COMPANY' • NORTH PAVILION 1 ST FLOOR 2ND FLOOR TOTAL RESTAURANT/CAFE (INCLUDES MARKET RESTAURANT( 17,504 21,600 39,104 RETAIL 30,328 15,568 45,896 TOTAL LEASEABLE SF 47,832 37,168 85,000 • SOUTH PAVILION 1 ST FLOOR 2ND FLOOR TOTAL RESTAURANT/CAFE 11,864 13,768 25,632 RETAIL 32,856 - 32,856 SPECIALTY FOOD - 24,152 24,152 TOTAL LEASEABLE SF 44,720 37,920 82,640 • MARKET BUILDING. - FLOWERS/PRODUCE - ~' - 5,500 MARKET FOOD 3,500 BULL MARKET 7,000 TOTAL LEASEABLE SF 16,000 • PIER RETAIL (MARINA SALES) 1,000 RESTAURANT 15,000 TOTAL LEASEABLE SF 16,000 • TOTAL PROJECT AREA GENERAL RETAIL 79,752 RESTAURANT/CAFE 79,736 SPECIALITY FOOD 24,152 MARKET FOOD - 3,500 BULL MARKET 7,000 FLOWERSI PRODUCE 5,500 ■ TOTAL LEASEABLE SF (NEW PROPOSAL) 199,640 WITH EXISTING REFLECTIONS/MARINA 26,950 TOTAL LEASEABLE SF • PARKING STRUCTURE • MARINA PARKING • OVERFLOW SURFACE PARKING 226,590 1200 CARS 40 CARS 250 CARS it 6v CITY OF M- IAMl BAYSIDE SPECIALTY CE1V AGREEMENTS -� APPROVAL COPIES DECEMBER 79 1984 n inp 84-1341.3 ORDER OF AGREEMENTS 1. Lease Agreement between Bayside Center Limited Partnership and City of Miami - Bayside Specialty Center Retail Parcel. 2. Agreement of Guaranty (between the City of Miami and Bayside Center Limited Partnership with respect to Bayside Specialty Center Retail Parcel. 3. Lease Agreement between Bayside Center Limited Partnership and City of Miami - Bayside Specialty Center Parking Garage 4. Agreement of Guaranty between the City of Miami and Bayside Center Limited Partnership with respect to Bayside Specialty Center Parking Garage. 5. Parking Garage Management Agreement between Bayside Center Limited Partnership and Department of Off -Street Parking of the City of Miami. 6. Minority Participation Agreement between the City of Miami and Bayside Limited Partnership. 7. Amendment to Agreement between City of Miami and Miami MotorSports, Inc. $• Existing Agreement between the City of Miami and Miami MotorSports, Inc. 9. Supplemental Agreement between the City of Miami and Miami 0 MotorSports, Inc. and Bayside Center Limited Partnership. 10. Agreement between the City of Miami and the Department of Off -Street Parking. 84-1341.3 Draft - 12/6/84 LEASE AGREEMENT between BAYSIDE CENTER LIMITED PARTNERSHIP and CITY OF MIAMI December , 1984 BAYSIDE SPECIALTY CENTER RETAIL PARCEL TABLE OF CONTENTS PAGE ARTICLE I - EXHIBITS AND DEFINITIONS 4 Section 1.1. Exhibits . . . . . . . . . . . . . . . . . . . . . 4 Section 1.2. Defined Terms . . . . . . . . . . . . . . . . . . . 5 ARTICLE II - GENERAL TERMS OF LEASE OF LEASED PROPERTY 20 Section 2.1. Lease of Leased Property to Developer. . . . . . . 20 a. Premises . . . . . . . . . . . . . . . . . . . 20 b. Original Term . . . . . . . . . . . . . . . . . 21 c. Renewal Term . . . . . . . . . . . . . . . . . 22 d. Possession of Leased Property. . . . . . . . 22 e. Conditions Precedent . . . . . . . . . . . . 24 f. Developer Obligations Prior to Possession. . 26 Section 2.2. Restrictive Covenants . . . . . . . . . . . ... . . 26 a. Use Prohibitions of the Leased Property. . . . 27 b. No Discrimination . . . . . . . . . . . . . . . 27 c. Permitted Uses for Leased Property . . . . . . 28 d. Use Prohibitions of the Park Site and Garage Parcel . . . . . . . . . . . . . 29 e. Enforceability . . . . . . . . . . . . . . . . 30 Section 2.3. Easements . . . . . . . . . . . . . . . . . . . . . 31 a. Existing Easements . . . . : . . . . . . . . . 31 b. Easements Granted to Developer . . . . . . . . 31 c. Limitations on Easements Rights. . . . . . . . 33 d. Duration of Easements. 35 e. Confirmatory Instruments . . . . . . . . . . . 35 Section 2.4. Title of Leased Property . . . . . . . . . . . . . 36 Section 2.5. Rental . . . . . . . . . . . . . . . . . . . . . . 36 a. Rentals Payable . . . . . . . . . . . . . . . . 36 b. Continuous Operation . . . . . . . . . . . . . 39 c. Payment of Rental . . . . . . . . . . . . . . . 39 d. Refinancing . . . . . . . . . . . . . . . . . . 40 e. Developer's Records . . . . . . . . . . . . . 41 f. Pre -Construction Contributions . . . . . . . . 43 Section 2.6. Covenants for Payment of Public Charges by Developer . . . . . . . . . . . . . . 45 Section 2.7. Approvals and Consents . . . . . . . . . . . . . . 46 Section 2.8. Security and Police Protection 46 Section 2.9. City Improvements. . . . . . . . . . . . . . . . . 47 Section 2.10. Condition of Leased Property . . . . . . . . . . . 47 Section 2.11. Roadways and Utilities . . . . . . . . . . . . . . 48 (i) TA13.E OF CONTENTS PAGE ARTICLE III - CONSTRUCTION OF IMPROVEMENTS 49 Section 3.1. Conformity of Plans. . . . . . . . 49 Section 3.2. Preliminary Plans . . . . . . . . . . . . . . . . . 49 Section 3.3. Construction Plans . . . . . . . . . . . . 51 Section 3.4. Facilities to be Constructed . . . . 53 Section 3.5. Maintenance of Park Site and Leased Property 53 Section 3.6. Access . . . . . . . . . . . . . . . . . . . . . . 54 Section 3.7. Construction Period . . . . . . . . . . . . . . . . 54 Section 3.8. Progress of Construction . . . . . . . . . . . . . 55 Section 3.9. Certificate of Final Completion. . . . . . . . . . 56 Section 3.10. Connection of Building to Utilities. . . . . . . . 56 Section 3.11. Permits and Approvals. . . . . . . . . . . . . 56 Section 3.12. Compliance with Laws . . . . . . . . . . . . 58 Section 3.13. Extension of Time Requirements . . . . . . ... 59 Section 3.14. Alterations and Renovations. . . , . . . . . . . . 59 Section 3.15. Art in Public Places . . . . . . . . . . . . . . . 59 ARTICLE IV - LAND USES 60 Section 4.1. Land Uses. . . . . . . . . . . . . . . . . . . . . 60 Section 4,2. Character and Operation of Improvements. . 60 ARTICLE V - ANTI -SPECULATION; ASSIGNMENT 61 Section 5.1. Definitions . . . . . . . . . . . . . . . . . . . . 61 Section 5.2. Purposes of Restrictions on Transfer . 63 Section 5.3. Transfers . . . . . . . . . . . . . . 63 Section 5.4. Notice of Transfer; Information as to Shareholders 66 Section 5.5. Effectuation of Certain Permitted Transfers. . . . 67 Section 5.6. Transfers of the City's Interests. . . . . . . . . 68 Section 5.7. Subletting . . . . . . . . . . . . . . . . . . . . 69 Section 5.8. Minority participation in ownership. . . . . . . . 69 ARTICLE VI - MORTGAGE FINANCING; RIGHTS OF MORTGAGEE 70 Section 6.1. Leasehold Mortgage . . . . . . . . . . . . . . . . 70 Section 6.2. No Waiver of Developer's Obligations or City's Rights . . . . . . . . . . . . . . . . 80 ARTICLE VII - REMEDIES 80 Section 7.1. Events of Default - Developer. . . . . . . . . . . 80 a. Failure - Payment of Money . . . . . . . . 80 b. Failure - Performance of Other Covenants, Etc. 80 c. Bankruptcy, etc . . . . . . . . . . . . . . . . 81 TABLE OF CONTENTS PAGE Section 7.2. Remedies for Developer's Default . . . . . . . . . 82 Section 7.3. Events of Default - City . . . . . . . . . . . . . 82 a. Events of Default . . . . . . . . . . . . . . . 82 b. Remedies for City's Default. . . . . . . . . . 83 Section 7.4. Unavoidable Delay . . . . . . . . . . . . . . . . . 83 Section 7.5. Obligations, Rights and Remedies Cumulative. . . . 85 ARTICLE VIII - PROTECTION AGAINST MECHANICS' LIENS AND OTHER CLAIMS, INDEMNIFICATION 85 Section 8.1. Mechanics' Liens and Payments of Obligations . . . 85 a. Developer to Discharge Mechanics' Liens. . . . 85 b. Payment of Materialmen and Suppliers 86 Section 8.2. Indemnity . . . . . . . . . . . . . . . . . . . . 87 ARTICLE IX - INSURANCE 87 Section 9.1. Insurance Coverage . . . . . . . . . . . . . . . . 87 a. Property Insurance . . . . . . . . . . . . . . 87 b. Rental Value Insurance . . . . . . . . . . . . 88 c. Automobile Liability Insurance . . . . . . . . 89 d. Liability Insurance . . . . . . . . . . . . . . 89 e. Worker's Compensation . . . . . . . . . . . . . 90 f. Copies . . . . . . . . . . . . . . . . . . . . 90 Section 9.2. Responsible Companies - Blanket Insurance Permitted. 90 Section 9.3. Named Insureds - Notice to City of Cancellation. 91 Section 9.4. City May Procure Insurance if Developer Fails To Do So . . . . . . . . . . . . . . . . . 91 Section 9.5. Insurance Does Not Waive Developer's Obligations . 92 Section 9.6. Loss or Damage Not to Terminate Rental or this Agreement. . . . . . . . . . . . . . . 92 Section 9.7. Proof of Loss . . . . . . . . . . . . . . . . . . . 92 Section 9.8. Property Insurance Proceeds. . . . . . . . . . . . 92 a. Authorized Payment . . . . . . . . . . . . . . 93 b. Disposition of Insurance Proceeds for Reconstruction . . . . . . . . . . . . . 94 c. Lenders and Lender/Landlords May Have Benefit of Insurance Fund for Reconstruction . . . . 94 Section 9.9. Covenant for Commencement and Completion of Reconstruction. . . . . . . . 95 Section 9.10. Developer's Rights In the Event of Uninsured Major Casualty . . . . . . . . . . . . . . ... . 96 Section 9.11. Casualty to Parking Garage . . . . . . . . . . . . 97 TABLE OF CONTENTS ARTICLE X - CONDEMNATION PAGE 98 Section 10.1. Entire Leased Property Taken by Condemnation . . . 98 Section 10.2. Partial Taking of Leased Property by Condemnation. 99 Section 10.3. Adjustment of Rent Upon Partial Taking . . . 101 Section 10.4. Taking for Temporary Use or of Leasehold Estate. 102 Section 10.5. Arbitration . . . . . . . . . . . . . . . . . . . . 103 Section 10.6. Parking Garage Taken by Condemnation . . . . . . . 104 ARTICLE XI - RIGHTS OF OCCUPANCY AND ACCESS; MAINTENANCE; OWNERSHIP OF IMPROVEMENTS 107 Section 11.1. Quiet Enjoyment . . . . . . . . . . . . . . . . . . 107 Section Section 11.2. 11.3. Waste . . . . . . . . . . . . . . . . . . . . . . . Maintenance and Operation of Improvements. 107 107 Section 11.4. Ownership of Improvements During Lease . . . . . . 107 Section 11.5. Surrender of Leased Property . . . . . . . . . . . 107 Section 11.6. City and Developer to Join in Certain Actions. . . 108 ARTICLE XII - MISCELLANEOUS PROVISIONS 108 Section 12.1. No Partnership or Joint Venture. . . . . . . . . . 108 Section 12.2. Recording, Documentary Stamps. . . . . . . . . . . 108 Section 12.3. Florida and Local Laws Prevail . . . . . . . . . . 109 Section 12.4. Conflicts of Interest; City Representatives Not Individually Liable . . . . . . . . . . . . . 110 Section 12.5. Notice . . . . . . . . . . . . . . . . . . . . . . 110 a. Developer . . . . . . . . . . . . . . . . . . . 110 b. Developer's Records . . . . . . . . . . c. City Manager . . . . . . . . . . . . . . . . . . . . . 110 ill Section 12.6. Estoppel Certificates . . . . . . . . . . . . . . . ill Section 12.7. Provisions Not Merged with Deed. . . . . . . . . . 112 Section 12.8. Titles of Articles and Sections. . . . . . . . . . 112 Section 12.9. Counterparts . . . . . . . . . . . . . . . . . . . 112 Section 12.10. Nondisturbance and Attornment. . . . . . . . . . . 112 Section 12.11. Non -Discrimination and Equal Opportunity 113 Section 12.12. Successors and Assigns . . . . . . . . . . . . . . 113 EXHIBITS. Exhibit A-1 -- Survey Exhibit A-2 -- Plat of Bayfront Park Exhibit A-2 --- Site Plan Exhibit B-1 -- Legal Description of Retail Parcel Exhibit B-2 -- Legal Description of Area A-4 Exhibit B-3 -- Legal Description of Area A-5 (iv) 9 0 FABLE OF CONTENTS EXHIBITS (can't.) Exhibit C -- Intentionally Deleted Exhibit D -- Form of Guaranty Exhibit E -- Permitted Encumbrances and Easements Exhibit F -- List of Approved Concept Plans Exhibit G -- Development Schedule Exhibit H -- Minority Participation Agreement Exhibit I -- The Design Development Plans for Restaurant in Area A-4 Exhibit J -- Maintenance Responsibility Plan Exhibit K -- Survey Showing All Easements and Utilities Located at the Leased Property 1545F/452A (v) 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 survey attached hereto as Exhibit A-1 and the Plat attached hereto as Exhibit A-2. For the purpose of this Lease Bayfront Park consists of the following parcels: (a) A parcel of land shown and designated on Exhibit A-1 as the "Retail Parcel"; (b) A parcel of land shown and designated on Exhibit A-1 as the "Garage Parcel"; (c) A parcel of land shown and designated on Exhibit A-1 as "Area B" ; (d) A parcel of land shown and designated on Exhibit A-1 as "Area A-4"; and (e) A parcel of land shown and designated on Exhibit A-1 as "Area A-5"; and (f) The remainder of Bayfront Park as shown on Exhibit Ail. By authority of the City of Miami Charter, the City on March 189 1983 authorized the publication of a request for proposals for the unified development project to be known as Bayside Specialty Center for development of a portion of the Bayfront Park, which development would include restaurants, fast-food services, retail stores, markets and entertainment areas responsive to urban, environmental and design factors inherent to the City waterfront and Bayfront Park. Developer submitted a proposal to develop a mixed -use project to be �1 known as "Bayside Specialty Center", which will consist of the following improvements generally shown on the Site Plan attached hereto as Exhibit A-3: (a) A pavilion, containing approximately 84,996 square feet of leasable area on two levels ("North Pavilion"). The North Pavilion will include specialty retail shops, a pedestrian street, and cafes and restaurants; (b) A pavilion, containing approximately 82,636 square feet of leasable area on two levels ("South Pavilion"). The South Pavilion will contain fast food markets of ethnic food specialties, restaurants, cafes and specialty retail shops; (c) A market area, containing approximately 449000 square feet of open plaza and approximately 169000 square feet of leaseable space, located between the North Pavilion and the South Pavilion ("Market Square"). Market Square shall contain a flower mart, produce mart, cafes, fisherman's boat market, and a major water feature; (d) A pier park containing (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 - feet; (e) Reflections Restaurant, containing approximately 25,000 square (f) Promenades, landscaped areas, viewing pavilions, access roads, and certain pedestrian bridges described in the aforesaid proposal and other related amenities; and (g) Permanent parking garage containing not less than one thousand two hundred (1,200) parking spaces on three and one-half levels ("Parking Garage") and a surface parking lot to be located on certain real property owned by the City located immediately to the west and north of the North & Pavillion (hereinafter called the "Garage Parcel") which will be demised to Developer pursuant to a lease agreement between the Developer and the City ("Parking Garage Ground Lease"). The City contemplates that the following improvements to Bayfront Park will be made: (a) An Amphitheater; (b) Phased replacement of seawalls and rip rap, and construction of a baywalk with infill and water taxi piers in the location shown on Exhibit 9 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 $41000,000. 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 1.29 to which reference is hereby made. In consideration of the foregoing and of the rent, covenants, and 1 agreements hereinafter set forth, the parties do hereby covenant and agree as follows: ARTICLE I EXHIBITS AND DEFINITIONS Section 1.1 Exhibits. Attached hereto and forming a part of this Agreement are the following Exhibits: Exhibit A-1 -- Survey Exhibit A-2 -- Plat of Bayfront Park Exhibit A-3 -- Site Plan Exhibit B-1 -- Legal Description of Retail Parcel Exhibit B-2 -- Legal Description of Area A-4 Exhibit B-3 -- Legal Description of Area A-5 Exhibit C -- Intentionally deleted Exhibit D -- Form of Guaranty by The Rouse Company of Columbia, -"-"—' Maryland Exhibit E -- Permitted Encumbrances and Easements 4- Exhibit FF -- List of Approved Concept Plans Exhibit G -- Development Schedule Exhibit HH -- 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). "Acceptable Purchaser" has the meaning ascribed to it in Section 0 5.3(d). "Additional Rental" means any and all payments required of Developer to the City by the terms of this Lease other than Rental. "this- A rg eement" or this Lease", means this Lease Agreement, as the same may be modified or amended from time to time. 2.5(a) . "Area A-5 Minimum Rental" has the meaning ascribed to it in Section C "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 "Ares l", "Area A`2", "Ares , "Area A�-4" and "Area A-5" have the meanings ascribed to them in the Statement of Background and Purpose. "Area B_" has the meaning ascribed to it in the Statement of Background and Purpose. "Audited Financial Statement" means a Financial Statement certified by the Auditor to have been prepared in accordance with Generally Accepted Accounting Principles and Generally Accepted Auditing Standards as promulgated by the American Institute of Certified Public Accountants. 61 "Auditor" means Peat, Marwick, Mitchell do Co. or such other nationally recognized f irm of certif ied public accountants as may be' used f rom time to time by the Developer for the purpose of certifying the annual reports of its financial condition required by law. Such firm of accountants must be a member of the so-called "Big Eight" group of Accounting Firms. "Bayfront Park" has the meaning ascribed to it in the Statement of Background and Purpose. "Bayside ,Specialty Center" has the meaning ascribed to it in the Statement of Background and Purpose. "Capital Improvements" means any addition to the Project or the construction of any additional portion of the Project or other construction in, upon or constituting part of the Leased Property (i) occurring subsequent to the date on which the entire Project is "open for business", (ii) the cost of which is reasonable and verifiable and may be capitalized and depreciated in accordance with generally accepted accounting principles and (iii) the cost of which is not included in the construction and/or permanent financing of Development Cost. - 6 - "Certificate of Final Completion" has the meaning ascribed to it in Section 3.9. "the City" has the meaning ascribed to it in the opening paragraph of this Agreement. "City Improvements" has the meaning ascribed to it in Section 2.9. "City Maintenance Area" has the meaning ascribed to it in Section 3.5. "City Storm Sewer Easement" has the meaning ascribed to it in subclause (ii) of Section 2.3(a). "the City Manager" has the meaning ascribed to it in the opening paragraph of this Agreement. "Common Area" means those areas and facilities which may be furnished by Developer within the leased Property for the non-exclusive general common use of Subtenants and other occupants of the Improvements, their officers, agents, employees and customers, including (without limitation) all malls, courts, ramps, landscaped and planted areas, eating and picnic areas, retaining walls, stairways, escalators, elevators, fire corridors, bus stops, first aid stations, comfort stations or restrooms, civic facilities, meeting 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 of which the City Manager shall issue the Certificate of Final Completion pursuant to Section 3.9. "Construction Plans" has the meaning ascribed to it in Section 3.3. "County Easement" has the meaning ascribed to it in subclause (i) of Section 2.3(a). -7- "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. "Default Rate" has the meaning ascribed to it in subclause (c) of ip Section 2.5. "Developer" has the meaning ascribed to it in the opening paragraph of this Agreement. "Development Costs" means an amount, provided in reasonable detail to the City by an executive officer of Developer and acceptable to Developer's Leasehold Mortgagees or Lender/Landlords, equal to the aggregate of all costs and expenses actually incurred by Developer for the purpose of and properly allocated to the initial development and construction of the Developer -8- Improvements at the Leased Property (together with any and all improvements made by Developer on behalf of the City in areas adjacent to the Leased Property not paid for by the City), including (without limitation or duplication) : (1) Design, planning, architectural and engineering fees, costs and expenses; and presentation costs and expenses; (2) The cost of labor, equipment, supplies, materials and services paid to contractors and subcontractors; (3) Fees and expenses paid to contractors and subcontractors; (4) Legal and accounting costs, fees'and expenses; (5) Interest, commitment fees, points and other financing costs incurred in arm's length transactions, and interest on money borrowed by Developer from its parent, affiliated entities or subsidiaries in connection with the development of the Bayside Specialty Center at a cost not greater than the borrowing cost incurred by such parent, affiliate or subsidiary; (6) The cost of property, liability, workmen's compensation, title and other insurance; (7) The cost of obtaining permits and licenses, and all Public Charges; (8) Utility relocation costs and expenses and tap -in fees or other Pees 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 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 W managers and promotion directors (but only to the extent incurred prior to the Opening Date), and (ii) tenant coordinators, project accountants, secretaries, clerks and similar office personnel; (13) The cost of subleasing the improvements for their initial occupancy, including (without limitation) advertising costs and the fees, commissions and expenses paid to leasing agents or brokers; (14) The cost of pre -opening management, advertising and publicity and the cost of any opening event or celebration including advertising and publicity of same; (15) The central office overhead cost of The Rouse Company or any affiliate related thereto with respect to the development of the Project; (16) Other reasonable costs and expenses which are of a type usually and customarily incurred in connection with development of a specialty retail center. Development Costs shall not include any items paid for by the Tenant Allowance. "Developer Equity Investment" means the amount equal to the sum of (i) Development Cost, (ii) an amount equal from time to time to any unrecouped and unfinanced cost of Capital Improvements made and paid for by Developer - 10 - after initial construction of the Developer Improvements, and (iii) Operating Losses (excluding Rentals other than Additional Rental) less (iv) the net proceeds actually received by Developer from any and all Leasehold Mortgages or all Sale-Subleaseback Transactions of Developer's estate in the Leased Property and Developer Improvements. "Developer Improvements" has the meaning ascribed to it in Section 3.4. "Developer Maintenance Area" has the meaning ascribed to it in Section 3.5. "Developer Utility Easement" has the meaning ascribed to it in the subclause (i) of Section 2.3(b). "Developer Vehicular Access Easement" has the meaning ascribed to it in subclause -(ii) of Section 2.3(b) . "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) . �1 "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. "FECCTract_" 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. "Financi,gS lease" has the meaning ascribed to it in the definition of "Sale-Subleaseback Transactiorf'. "Foundation" has the meaning ascribed to it in Section 12.11. "Grand Prix Agreement" has the meaning ascribed to it in Section 2.2(c) . "Garage Parcel" has the meaning ascribed to it in the Statement of Background and Purpose. "Improvements" shall mean all existing and future structures at the Leased Property. "Institutional Investor" has the meaning ascribed to it in subclause (b) of Section 6.1. "Insurance Trustee" has the meaning ascribed to it in Section 9.8(a). "Leaseable Area" means the aggregate of the actual number of square feet of leaseable area in the Leased Property designed for the exclusive use and occupancy of rent paying Subtenants, excluding Common Areas, mezzanine Q 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. "Lem 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) supervisi&i ull, the performance of all of Developer's obligations in accordance with the standards of operation and maintenance applicable to a high quality retail development, including without limitation supervision of heating, ventilating, air-conditioning and maintenance of the Leased Property and the maintenance of all Common Area, and all security systems -and retail management personnel; (ii) enforcement of all Subleases (including collection of minimum and percentage rents, collection of other charges such as common area maintenance and heating, ventilating and air-conditioning charges, and supervision of the performance of all obligation under Subleases), termination and modification of existing Subleases when required, renewal of such Subleases and obtaining new Subtenants for vacant spaces; (iii) supervision of any merchants association; (iv) formulation of all budgets for operation of the Leased Property; (v) keeping books of account, auditing such books at least annually, preparation of statements of account to be submitted to the City showing the performance and condition of the Leased Property, and supervision of the payment of all obligations related to the operation of the Leased Property; (vi) development of programs for the promotion of the Leased Property (including advertising and publicity programs); (vii) management of the Leased Property, including all normal legal - 13 - 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. "Miam�arina" has the meaning ascribed to it in the Statement of Background and Purpose. "Minimum Base Rental" has the meaning ascribed to it in Section 2.5. "Net Income Available for Distribution" means the Operating Income for the applicable or pertinent period, minus the sum of (1) Operating Expenses for the same period, (2) Debt Service Payments for the same period, and (3) an amount equal to ten percent (10%) of Developer's Equity Investment for the same period. Net Income Available for Distribution shall be determined on an accrual basis in accordance with generally accepted accounting principles. "North Pavilion" has the meaning ascribed to it in the Statement of Background and Purpose. - 14 - "On -Site Management Costs" means that portion of Management Costs described in clause (viii) of the definition of the term "Management Costs". "Opening Date" means the earlier of (1) the date upon which Subtenants occupying eighty (80%) percent of the Leaseable Area (exclusive of temporary tenants or pushcarts) are open and operating for business with the general public in the Leaseable Area, or (2) the ninetieth day following issuance of the Certificate of Final Completion. "Operating Contributions" means any and all payments made to Developer by any Subtenant or other party as a contribution toward the cost of cleaning, maintaining and repairing and securing any of the facilities situated outside structures located on the Leased Property, or the cost of providing, maintaining, repairing and operating heating, ventilating or air-conditioning equipment (including, without limitation, the cost of energy therefor), or as a contribution to any promotion fund, advertising fund or merchants association administered by Developer, or in consideration of the furnishing of utility services by Developer, or in consideration of the furnishing of sprinkler or fire protection systems and devices, or as a reimbursement or contribution toward the payment of any Public Charges or any other payment in the nature of a reimbursement of, or contribution to, or charge in lieu of any cost incurred by Developer in connection with the ownership or operation of the Leased Property or the Improvements. "Operating Expenses" means (without duplication) (1) all reasonable and prudent expenditures for a Waterfront Specialty Center according to the then current standards of the industry accounted for by the accrual method in accordance with generally accepted accounting principles made by the Developer or which the Developer is obligated to make in the operation, ownership or - 15 - :�:Y,}.-:_- _ gym: c�+:,: LL;,_ ,„,:e�. ..2; •; �7,;::�:.C� �,�: management of the Leased Property and the Improvements or any part of either, including (without limitation) payroll and payroll expenses, business taxes and Public Charges, supplies, license and permit fees, repair and maintenance expenses, costs and expenses of cleaning, maintaining and repairing the Common Area and Leased Property, utility charges, insurance premiums, auditing and professional fees and expenses, publicity costs and expenses (including, without limitation, contributions to any promotion fund, advertising fund or merchants association administered by the Developer), (2) On -Site Management Costs, (3) three and one-half 3-1/2% percent of Operating income for Management Costs (exclusive of On -Site Management Costs), (4) Annual Basic Rental, and (5) Area A-5 Minimum Rental. In no event shall depreciation constitute a portion of Operating Expenses. No expenses or costs incurred by Developer in connection with the operation of the Parking Garage shall constitute Operating Expenses hereunder. "Operating Income" means the Developer's gross operating revenues arising out of or resulting from the rental and/or ownership and operation of the Leased Property, the Improvements (other than funds received as the capital contributions, insurance or condemnation proceeds, or the proceeds of loans, financings or sale of property), including (without limitation) all such operating revenues, Operating Contributions and other payments received from Subtenants and all income from vending machines, telephones, pay toilets and other sources located in the Leased Property or the Improvements. Prepaid rents, prepaid payments and security deposits shall not be included in Operating Income until earned, applied or forefeited. If Developer shall receive insurance or condemnation proceeds or awards, the amount thereof which represents reimbursement to Developer for items accounted for as Operating Expenses shall be deemed to be Operating Income. No operating revenues made - 16 - by Developer with respect to the Parking Garage shall constitute a portion of Operating Income hereunder. "OperatingLosses" means the amount by which the Operating Income for the applicable period is less than the aggregate of Operating Expenses plus Debt Service Payments for the same period. "Original Term" has the meaning ascribed to it in clause (c) of Section 2.1. "Owner" has the meaning ascribed to it in Section 5.1. "Owner whose shares are publicly traded" has the meaning ascribed to C it in Section 5.1. "Park Site" means the area comprising the Bayfront Park but excluding the Leased Property and the Garage Parcel all as shown on Exhibit A-2. "Parking Garage" has the meaning ascribed to it in the Statement of Background and Purpose. "Parking Garage Ground Lease" has the meaning ascribed to it in the Statement of Background and Purpose. "Pier Park" has the meaning ascribed to it in the Statement of Background and Purpose. "Possession Date" has the meaning ascribed to it in Section 2.1(d). "Project means the Improvements described in subparagraphs (a) through (f) in the third paragraph of the Statement of Background and Purpose. "Public Charges" has the meaning ascribed to it in Section 2.6. "Reconstruction Work" has the meaning ascribed to it in clause (b) of Section 9.8. "Retina`" 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. "Renewal Term" has the meaning ascribed to it in clause (c) of Section 2.1. "Rent Commencement Date" means the date described as "Rent Commencement Date" on Exhibit G attached hereto, subject to extensions or adjustments thereto for a period equal to any delay in the occurrence in the Completion Date due to Unavoidable Delays, as defined in Section 7.4. , "Rental" has the meaning ascribed to it in clause (a) of Section 2.5. "Rental Year" means a calendar year consisting of twelve (12) consecutive calendar months beginning on January 1 and ending on December 31 of each year of this Lease. The first Rental Year during the term of this Lease shall commence on the Opening Date and end on December 31st of the same calendar year in which the Opening Date occurs, and the Rental shall be apportioned therefor. Any portion of the term remaining after the end of the last full Rental Year shall constitute the final Rental Year, and Rental shall be apportioned therefor. 2.10. "Restaurant Facilities" has the meaning ascribed to it in Section - is- I { +! "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/ i Landord of all or a substantial portion of Developer's interest in this Lease, and the subsequent execution of a sublease ("Financing Sublease") between Lender/Landord and Developer. "Section", "subsection", "paragraph", "subparagraph", "clause", or "subclause" followed by a number or letter means the section, subsection, paragraph, subparagraph, clause or subclause of this Agreement so designated. "South Pavilion" has the meaning ascribed to it in the Statement of Background and Purpose. "Sublease" means any lease, sublease, license or other agreement by which Developer or any person or other entity claiming under Developer (including, without limitation, a subtenant or sublicensee) demises, leases, subleases, licenses or sublicenses to or permits the use or occupancy by another person or entity of any part of the Leased Property and Improvements. "Subtenant" means any person, firm, corporation or other legal entity using or occupying or entitled to use or occupy any part of the Leased Property or the Improvements under a Sublease. "Tenant Allowance" means those certain improvements to be agreed upon between the City and the Developer to be made at the City's cost to the Leased Property having an aggregate cost of Four Million Dollars ($44,000,000) in consideration'of Developer entering into this Lease. "Transfer" has the meaning ascribed to it in Section 5.1. "LOAG has the meaning ascribed to it in subclause (e) Section 2.1. - 19- "Waterfront Specialty Center" means a retail complex situate on or .� _ near a major body of water having a wide variety of specialty retail and restaurant establishments and other food related uses. Examples of Waterfront Specialty Centers include but are not limited to Faneuil Hall Market Place in Boston, Massachusetts, Harborplace in Baltimore, Maryland and South Street Seaport in New York, New York. ARTICLE II GENERAL TERMS OF LEASE OF LEASED PROPERTY % Section 2.1 Lease of Leased Property to Developer. Subject to the conditions set forth in this Agreement, to the payment 'of rental provided herein, and the performance of the parties hereto of the duties and obligations on the part of each to be performed hereunder: (a) Premises. The City demises and leases to Developer, and Devel- oper takes and hires from the City, all of the area described as Retail Parcel, Area A-4 and Area A-5 as shown on Exhibit A-1 and more particularly described in the legal descriptions attached hereto as Exhibits B-1, B-2 and ® B-3 together with the buildings, structures, Improvements and equipment thereon and together with and subject to the restrictions, conditions, covenants and easements hereinafter mentioned, reserved or granted (the "Leased Property"). The City and Developer recognize that the boundaries of the Leased Property may require minor adjustments to accommodate the Improvements con- templated pursuant to the Construction Plans. Should the parties agree a modification is required, Exhibits B-1, B-2 and/or B-3 to this Lease shall be amended accordingly. - 20 - i i City shall have the right, but not the obligation, to construct the proposed light tower on Area A-5. Within one (1) year from the Completion Date, Developer shall notify the City Manager whether or not Developer intends to construct the proposed improvement on Area A-4 and/or to occupy the proposed light tower to be constructed by the City on Area A-5. If, within such one (1) year period, the Developer elects not to construct on Area A-4 or to not occupy the proposed light tower on Area A-5 or if the City has not decided to construct the improvements on Area A-5, this Lease shall terminate _ as to such Area and same shall be deemed to be included in the Park Site. If Developer elects to construct improvements on Area A-4, such improvements must be substantially in accordance with the design development plans approved by the City Commission and made a part of this Agreement as Exhibit I. New structures shall be limited to a maximum height not to exceed that of the existing Restaurant Facilities (50 feet above grade, 57 feet above mean water level). Buildings on the Leased Property shall not exceed a total of 200,000 square feet of Leaseable Area of New Construction plus a bonus of 42,000 square feet of Leaseable Area of new construction to which the ,S 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 (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 4 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 - (e) Conditions Precedent. Developer shall not be obligated to take possession of the Leased Property or to perform any other obligations under this Lease unless and until the following shall have occurred or have been obtained: (i) the City Manager has approved all of the Construction Plans for the Developer Improvements; (ii) Developer has obtained all governmental approvals and 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 Manager has approved all construction plans for the Parking Garage and other improvements to be constructed pursuant to the Parking Garage Ground Lease; (vi) The Developer has obtained all governmental approvals and permits necessary for construction of the Parking Garage and other improvements to be constructed pursuant to the Parking Garage Ground Lease; (vii) The City Manager shall have obtained a firm commitment acceptable to Developer for the issuance, sale and purchase of tax exempt industrial revenue bonds on terms and in a form satisfactory to Developer for construction of the Parking Garage and other improvements to be constructed pursuant to the Parking Garage Ground Lease; (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 ("WAG") in the amount of at least Six Million One Hundred Thousand Dollars ($6,1000000), on terms and in a form satisfactory to Developer; (ix) The City and Developer shall have entered into a mutually acceptable agreement with respect to the Miamarina; (x) Developer shall be satisfied that the development of the Project will not violate 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 and the City shall use good faith efforts to satisfy all of the aforesaid conditions precedent. It is recognized by the parties hereto that it is not the intention of either party to encumber the Leased Property with this Lease for an indefinite period of time during the period of satisfaction of the aforesaid conditions precedent and that therefore either party shall have the right to terminate this Lease if all of the aforesaid 0 conditions precedent are not satisfied on or before January 1, 1988. If Developer does not obtain satisfactory financing pursuant to subsection (iv) above and shall solely as a result thereof terminate this Lease, Developer shall pay to the City the amount of Two Hundred Fifty Thousand, Dollars ($250,000) as liquidated damages for such termination of this Lease provided that the City Manager establishes that Developer did not negotiate in good faith for such financing. There shall be no damages payable to the City if the Developer shall be unable to obtain acceptable financing after a good faith effort with respect to same. It is agreed that notwithstanding the - 25 - City's agreement to use good faith to satisfy the aforesaid conditions precedent, the City shall not be required to expend any funds in order to comply with any requirements of the statute or code set forth in (x) above except as specifically set forth in Section 3.11 hereof. No waiver of any of the foregoing conditions precedent shall be implied by any conduct of Developer, including (without limitation) any election by Developer to proceed with any development activity prior to the satisfaction of all of such conditions precedent, it being agreed that any waiver by Developer of any such condition precedent shall be effected only by Developer's express written statement to that effect delivered to the City or the City Manager. (f) Developer 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. The City shall indemnify, hold harmless and defend Developer from and against any and all claims, actions, suits or demands of any nature whatsoever with respect to any portion of the Leased Property arising out of any act or omission of the City, its agents, servants, employees or contractors occurring prior to delivery of possession thereof to Developer as herein provided. Section 2.2 Restrictive Covenants. The restrictive covenants con- tained in paragraphs (a) through (d) of this Section 2.2 are intended and designed to bind the Developer and the City and their respective successors and - 26 - assigns and bind .upon and run with the Leased Property and the Park Site (as the case may be) throughout the entire term of this Lease, including any Renewal Term and any new lease executed pursuant to the provisions of Sections 6.1 and 6.2. The parties recognize, however, that the development and opera- tion of the Leased Property, the Developer Improvements and the City Improve- ments in a manner which is in the best interests of both parties may from time to time require the confirmation, clarification, amplification, or elaboration of this Agreement in order to deal adequately with circumstances which may not now be foreseen or anticipated by the parties. The parties reserve unto them- selves the right to enter into such interpretive, implementing or confirmatory agreements from time to time as they may deem necessary or desirable for any such purpose without obtaining the consent or approval of any person or entity not a party to this Agreement except as may be expressly otherwise provided in this Lease or by law. (a) Use Prohibitions of the Leased Property. The Leased Property hereby demised shall not be used for the following: (i) Permanent or temporary housing or sleeping quarters; or (ii) Coinbox entertainment (pinball, video games, moving pictures operated by coins); or (iii) Casino gambling, games of chance or reward; or (iv) Any unlawful or illegal business, use or purpose, or for any business, use or purpose which is immoral or disreputable (including without limitation "adult entertainment establishments" and "adult" bookstores) or extra -hazardous, or in such manner as to constitute a nuisance of any kind (public or private), or for any purpose or in any way in violation of the certificates of occupancy (or other similar approvals of applicable governmental authorities). - 27 - (b) No Discrimination. No covenant, agreement, lease, conveyance or other instrument shall be effected or executed by Developer, or any of its successors or assigns, whereby the Leased Property or any portion thereof is restricted by Developer, or any successor in interest, upon the basis of race, color, religion, sex or national origin in the sale, lease, use or occupancy thereof. Developer will comply with all applicable state and local laws, in effect from time to time, prohibiting discrimination or segregation by reason of race, color, religion, sex, or national origin in the sale, lease or occupancy of the Leased Property. Developer agrees that Developer shall not have the right to use the Leased Property for casino gambling purposes even if casino gambling shall become legal in the City of Miami unless the City shall previously consent to same in writing, which consent may be unreasonably withheld. (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, 19829 (11) an amendment to such license agreement between the City and Developer on even 0 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 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. - 28 - (d) Use Prohibitions of. the Park Site and Garage Parcel. The parties acknowledge and agree that the Leased Property is surrounded by the Park Site and Garage Parcel and that, consequently, the manner in which the Park Site and Garage Parcel is or may be used from time to time will have a direct and material affect on the use and value of the Leased Property and the Improvements. In consideration of the foregoing and of the rentals reserved by it under this Lease, the City, as the owner of the Park Site and the Garage Parcel, for itself, its successors and assigns, covenants and agrees with Developer, its successors and assigns that: W The City will not permit any use of the Garage Parcel, Miamarina, the baywalk or the docks on the Park Site which would detract from the use of the Leased Property or which would materially obstruct the view of Biscayne Bay from the Leased Property, including (without limitation) any such use by vessels using the docks or the Miamarina. (ii) The City will not, without first obtaining the written consent of the Developer, (1) construct any fence or barrier between the Park Site, the Garage Parcel and the Leased Property, (2) make or permit substantial alteration in the Park Site or the Garage Parcel or permit any structure on the Park Site or the Garage Parcel which will substantially adversely affect the access to and from the Leased Property, or (3) be inconsistent with the use of the Leased Property; (iii) The City will not sell the Park Site or the Garage Parcel except to a party who shall agree to expressly assume the City's obligations under this Agreement and who shall have the authority to assume and perform the same as provided for under Section 5.6; - 29 - (iv) Except with respect to Areas A-4 and A-5 which may be used by the City for any lawful purpose if the City shall terminate this Lease with respect to same pursuant to Section 2.1(a), and except for the temporary uses permitted pursuant to the Grand Prix Agreement, the Park Site will, during the term of this Lease and any renewals hereof, be open to the general public and shall be devoted only to public park uses; and (v) The City will coordinate its ongoing planning and implementation efforts relating to the construction of improvements to and the use of the Park Site and Areas A-4 and A-5 with Developer (including, without limitation, the staging of promotional events and entertainment activities and construction activities) so that the making of improvements to and the use of such area will not materially adversely effect the Developer's and Subtenant's use and enjoyment of the Leased Property. The parties agree that all of the use restrictions herein contained with respect to the Garage Parcel shall not be binding on the City at any time that the Parking Garage Ground Lease shall be in effect. (e) Enforceability. It is intended and agreed hereby that the restrictive covenants contained in this Section 2.2 shall be binding upon the City and the Developer, their successors and assigns, and any covenants running with the Land and successors in interest, as the case may be, and shall be for the benefit and in favor of, and enforceable by, the City and Developer respectively, as the case may be; provided, however, that such covenants shall be binding on Developer, and the City, and their respective successors in interest and assigns, only for such period as each shall have (i) fee title to the Leased Property, the Park Site or any part of either as to the City, and Ui) the leasehold estate herein demised to Developer as to Developer. - 30 - Section 2.3 Eat. The following easements presently exist or are hereby granted: (a) Existing Easements. The following easements presently exist: (i) the easement for a 72 inch underground force main, more particularly shown and designated as the "County Easement" on Exhibit A-1 hereto; (ii) the 20 foot storm sewer easement more particularly shown and designated as the "City Storm Sewer Easement" on Exhibit A-1 hereto; (iii) such other easements as are described on Exhibit E. (b) Easements Granted to Developer. The City grants unto Developer, its successors and assigns the following: (i) the non-exclusive right and easement (the "Developer Utility Easement") to install, maintain, repair and replace utility facilities such 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 therefor on Exhibit A-1 or such other locations as may be approved by the City Manager from time to time. - 31 - Should Port Boulevard or Biscayne Boulevard not be immediately adjacent to the Leased Property or the Park Site, the area of land and related improvements permitted to be used as the Developer Vehicular Access Easement shall include any strips of land separating Port Boulevard or Biscayne Boulevard from either the Leased Property or the Park Site; (iii) the non-exclusive right to use portions of the Park Site in common with the public, subject to the City's right to restrict areas in the Park Site for reasonable periods during special events, for the unobstructed pedestrian access to and from the Leased Property by Developer and the Subtenants and their respective concessionaires, licensees, officers, employees, agents, customers and invitees to all of the Park Site now and hereafter existing including, but not limited to the baywalks, sidewalks, playgrounds and other open spaces; (iv) the non-exclusive right (but subject, nevertheless to Developer's first having obtained any permits or licenses required by law or applicable regulation), to use portions of the Park Site for the staging of promotional events designed to attract patrons or customers to 10 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; - 32 - (vii) non-exclusive rights and easements for installation, maintenance, repair and replacement of utility facilities and for pedestrian and vehicular access to and Prom Area A-4 and/or Area A-5 over and across the Park Site to the Leased Property and to Biscayne Boulevard, at such locations as may be approved by the City Manager from time to time; and (viii) non-exclusive right and easement for pedestrian access between the FEC Tract and the Leased Property at such locations as may be approved by the City Manager, from time to time. It is the intent of this Agreement that the Developer Improvements be confined to the limits of the Leased Property. (c) Limitations on Easement Rights. The rights and easements granted or reserved in paragraphs (a) and (b) of this Section 2.3 shall be limited as follows: (1) with respect to the County Easement and the Developer Utility Easement, except to the extent shown on the approved Construction Plans, no building or other structure shall be erected on the surface of same without the prior written consent of the Dade County Water and Sewer Authority, except that Developer may place or construct street furniture, kiosks, or other removable structures in any such area on the Leased Property, provided Developer shall promptly remove the same, at its expense, upon the City's or appropriate utility's request in order to permit the City or utility to perform maintenance services on the utility lines in the easement area, provided that in the design and construction of the Developer Improvements, Developer will use its diligent efforts to cluster underground utility lines and to minimize other construction below the surface of the easement area; - 33 - (2) With respect to the portion of the City Storm Sewer Easement area which may lie directly beneath the Developer Improvements, the City and Developer agree, within a reasonable time period from the date hereof, to enter into an easement agreement governing the use, maintenance, repair and replacement of the utilities within such easement area in order to provide Developer with sufficient assurances of the use and enjoyment of that portion of the Developer Improvements affected thereby. (3) the party having the benefit of any such easements (A) shall carry on any construction, maintenance and repair activity with diligence and dispatch and shall use its diligent efforts to complete the same in the shortest time possible under the circumstances, and (8) shall not carry on any construction, maintenance or repair activity in the easement area in such manner as to unreasonably interfere with the use and enjoyment of the servient tenement, and, except in the case of the County Easement, in carrying on such activities, will do so in such a manner as not to unreasonably interfere with business or businesses then being conducted in the Improvements or on the Leased Property by Developer or its Subtenants. City shall use its diligent efforts to obtain approval of Dade County to the foregoing provision with respect to the County Easement; (4) except in the event of emergency, the party having the benefit of such easement shall not carry on any construction, replacement, maintenance or repair activity at any time in such easement area unless such party shall have given at least sixty (60) days advance notice to the other party of its intention to do so; provided, however, that in the event of an emergency affecting the County Easement the City will use diligent efforts to obtain the consent of the Dade County Water and Sewer Authority to such notice requirements; - 34 - (5) promptly upon the completion of any such construction, repair or maintenance activity, the party having the benefit of such easement shall, at its expense, restore the surface of the easement area as nearly as possible to its former condition and appearance; (6) Developer and City agree to enter into an easement agreement governing the use, maintenance, repair and replacement of the City Storm Sewer Easement, and any other utility easement area which may be located under the Improvements within a reasonable time period from the date of this Lease in order to provide the Developer with sufficient assurances with respect to the use and enjoyment of that portion of the Improvements affected thereby; and (7) with respect to the Developer Vehicular Access Easement, the City may from time to time, erect signs, temporary barriers or other reasonable traffic controls designed to limit the use of the easement areas to service and emergency vehicles. 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 - 35 - easements granted and reserved in this Section 2.3 or more precisely fixing their location as such requesting party shall deem to be necessary or desirable. The City Manager is hereby authorized and empowered on behalf of the City to execute and deliver, from time to time, any such confirmatory documents or instruments. Section 2.4 Title of Leased Property. The City represents, covenants and warrants that it has good and merchantible fee simple title to the Leased Property and all of the improvements thereon, which title is free and clear from all covenants, easements, liens, clouds of title on other restrictions except for those listed in Exhibit E. Section 2.5 Rental. (a) Rentals Payable. Developer covenants and agrees to pay the City as rental ('"Rental") for the Leased Property, the following: (i) During the Original Term, an annual sum (the "Annual Basic Rental") equal to the greater of: (1) Thirty-five (35%) percent of Net Income Available for Distribution of the Project; or (2) The Minimum Base Rental for each Rental Year, as follows: FULL RENTAL YEARS MINIMUM BASE RENTAL 1-2 $ 3259000 3-6 $ 650,000 7-35 $19000,000 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 - 36 - _ i�'?\;,: _. LL,: ,�,''`i*�,�.�,%,;'n:i+6k•::;; fin;, r•rs4' '. . _ r. - '?: '�Jt_�_ _.. �.. ,� • �•c .,#v i�fq �:•s — a'i�`i` r t �:i •: �•" _ •,`_ .. .. � �.. .a �•�•. I.- L•.. ....N`+F 1.C.. � ..a L. - Ywti. . .•..mow .n �. "Cumulative Credit Balance Account" which credit shall accrue interest at eleven (11%) percent, compounded annually. The maximum amount to be credited to the Cumulative Credit Balance Account in any Rental Year shall be no greater than the Minimum Base Rental for that Rental Year. In any subsequent Rental Year for which a credit balance exists in the Cumulative Credit Balance Account, the Rental due to the City, shall be reduced, to not less than that Rental Year's Minimum Base Rental, by an amount applied from the remaining credit balance in the Cumulative Credit Balance Account. This procedure shall continue each Rental Year until the credit balance in the Cumulative Credit Balance Account is reduced to zero. Further, the Minimum Base Rental may, at the City's option, be increased to an amount in excess of $1,000,000 at the beginning of the thirty-sixth (36th) Rental Year if the average of the Annual Basic Rental paid during the preceding three (3) Rental Years shall exceed $1,000,000, in which event the Minimum Base Rental for the thirty-sixth through forty-fifth Rental Years shall be the average of the Annual Basic Rental paid by Developer for the thirty-third, thirty-fourth and thirty-fifth Rental Years. (ii) During each Renewal Term, an annual sum equal to the greater of: (1) The average of the Annual Basic Rental paid during the three (3) consecutive Rental Years prior to the end of the Original Term or the preceding Renewal Term, as the case may be and shall, at the City's option, be the New Minimum Base Rental, or (2) Thirty-five (35%) percent of the Net Income Available for Distribution; - 37 - provided, however, that in no event may such annual rent during (i) the First Renewal Term be less than the Minimum Base Rental payable during the final yea4a; of Original Term, and (ii) the Second Renewal Term be less than the 61� MimRental payable during the final year of the First Renewal Term. (iii) Developer shall pay during the Original Term and any Renewal Term to the City as Additional Base Minimum Rental an additional sum of Fifty Thousand Dollars ($50,000) per Rental Year ("Area A-5 Minimum Rental") upon occupancy of Area A-5 pursuant to Section 2.1 hereof. (iv) The word Rental shall be deemed to include additional rentals. (v) Reference is made to the Grand Prix Agreement. Pursuant to the terms thereof, the City is obligated to pay Miami MotorSports the amount of $100,000 as consideration for the granting of the Removal Option (hereinafter defined) by Miami MotorSports to the City. Developer agrees to pay said $100,000 to the City as additional rental on the Possession Date. Developer and the City further agree that W Developer shall have the right to cause the City to exercise the Removal Option by giving notice in writing to same at least 210 days prior to any scheduled motor race for the period commencing March 1, 1988 (the "Developer Option Period"), provided that Developer shall pay to the City $50,000 as additional rent each time Developer shall cause the City to exercise the Removal Option. The parties further agree that Developer shall pay $50,000 to the City as additional rental with respect to each time the City shall exercise the Removal Option during the Developer Option Period, notwithstanding the fact that Developer shall not have caused the City to exercise same. - 38 - As used herein, the term "Removal Option" shall mean the right granted to the City in the Grand Prix Agreement to require that the annual Grand Prix race event be on a course located on Biscayne Boulevard and not located in any portion of Bayfront Park. (b) Continuous Operation. Developer covenants and agrees to continuously operate the Project consistent with prudent business practices and the standards of operation set forth in Section 4.2 hereof (considering twelve (12) month use) in order to achieve a reasonable level of profitability. (c) Payment of Rental. Annual Basic Rental shall commence to accrue 44 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 therefor and shall be paid to the City at the Office of the Director of Finance, 3500 Pan American Drive, Miami, Florida 33133 or at such other place as the City Manager shall designate from time to time in a notice given pursu- ant to the provisions of Section 12.5. Any late payment shall automatically accrue interest at a rate equal to two (2) percent above that rate charged by the Citibank, N.A., of New York to its best commercial customers, generally referred to as its prime rate ("Default Rate'") from the date that payment was - 39 - due. Any overpayment of Annual Basic Rental at the end of each Rental Year shall be paid to Developer within thirty (30) days of receipt of such report or, at the option of Developer, the Developer shall credit such amount to the Rental due in the next Rental Year. If there is an underpayment of Annual Basic Rental, Developer shall pay the City the amount of the deficiency within thirty (30) days of the City's receipt of the report. (d) Refinancing. In the event that Developer proposes to engage in any Refinancing with respect to the Leased Property or any portion thereof, Developer shall give notice thereof to the City Manager not later than forty- five (45) days prior to the consummation of the transaction or transactions by which such Refinancing is accomplished. Such notice shall show, in reasonable detail, Developer's base estimates of the amount of the Refinancing Proceeds and the expected affect of such Refinancing upon Rental and Net Income Avail- able for Distribution for three (3) full Rental Years next following consum- mation of such Refinancing. Within thirty (30) days after such notice is given, the City shall elect, by giving notice of such election to the Developer, either: 0 (1) to participate in such Refinancing, in which case the Developer shall pay or cause to be paid to the City, upon consummation of such Refinancing, an amount equal to thirty-five percent (35%) of the Refinancing Proceeds less any amounts then in the Cummulative Credit Balance Account and thereafter Rental payments shall be determined by adjusting Debt Service Payments and Developer's Equity Investment to reflect such Refinancing; or (ii) not to participate in such Refinancing, in which case (x) no portion of such Refinancing Proceeds shall be payable to the City and Rental with respect to such portion of the Leased Property that is refinanced shall -40- 7,u./[`JG>..- -w Y9vT*.r1yM,..•9 . 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 promptly return the excess to the Developer. - 41 - Developer further covenants and agrees to deliver to the City commencing as of the Rent Commencement Date within forty-five (45) days after the close of each calendar quarter and after the termination of the Lease, a statement showing, in reasonable detail, the computation of the Annual Basic Rental, Area A-5 Minimum Rental, Operating Contributions, Operating Income, Operating Expenses and Net Income Available for Distribution for the preceding calendar quarter. The quarterly statement shall be signed and verified by an appropriate, authorized officer or General Partner of Developer stating specifically that such officer has examined the report, that such officer's examination included such tests of Developer's books and records as such officer considered necessary under the circumstances, and that such report presents fairly the Rental due with respect to the preceding calendar quarter. If Developer shall fail to deliver the foregoing statement. to the City within said period, or the City shall give written notice of its desire to audit the quarterly statements the City shall have the right to either conduct an audit itself or to employ an independent certified public accountant to examine such books and records as may be necessary to certify the amount of the Rentals due with respect to such calendar quarter. Developer shall promptly pay to the City, as Additional Rental, the cost of any audit performed by or for the City, in the event the City 's audit was in lieu of a quarterly 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. -42- (f) Pre -Construction Contributions. At the times set forth below, Developer shall pay to the City Three Million Six Hundred Fifty Thousand ($3,650,000) Dollars in the form specified below as Additional Rental, which amount shall be recognized as a part of the Development Costs. These payments shall be retained by the City if this Lease is terminated by reason of an Event of Developer Default. Said payment to be in addition to any damages that the City may be entitled to under this Agreement provided, however, that such payment may constitute an offset against any damages a court or the Arbitrators may award the City in connection with such Event of Developer Default. The City covenants and agrees to use these funds in fulfillment of the purposes for which the funds are given, as specified below, so long as Developer is not in default under the terms of this Agreement. $1 Million In the form of a letter of credit on terms and conditions and drawn on an Institutional Lender in all respects satisfactory to the City, which shall be delivered on the date this Lease becomes fully effective pursuant to Section 12.9 hereof and shall provide that the City may present same for payment within thirty (30) days next succeeding the Possession Date the proceeds of 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 - 43 - 1 or reimbursing itself in connection with the acquisition of all outstanding rights in the Restaurant Parcel so that same can be delivered to Developer on the Possession Date, free and clear of any rights of others except as set forth in Exhibit E provided, however, that on the Possession Date, all references contained in Exhibit E to any leases, licenses (except with respect to the Grand Prix Agreement, if appli- cable), or other occupancy or possessory agree- ments with respect to the Restaurant Parcel shall be deemed deleted. The Developer shall not be obligated to deliver such letter of credit or make such payment if Developer is not reasonably satisfied that the City shall have budgeted and encumbered the amount of Four Million and No/100ths Dollars ($4,000,000.00) by Resolution of the City Commission, authorizing the City Manager to pay such monies in fulfillment of this Agreement, and encumbered in the City's account or accounts. The City hereby agrees to pay such monies to Developer to pay the cost of the items to be constructed by Developer and paid for by the Tenant Allowance pursuant to a construction progress schedule to be agreed upon between the City and Developer. 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 - 44 - benefits have terminated and are no longer in force and effect including any encumbrances or exclusivity clauses which would adversely effect the Developer's use and any of Leased Property and the Improvements. Such evidence shall include (without limitation) copies of all executed documents relating to such terminations and a title report prepared at Developer's cost, indicating any such interests or restrictions no longer exist. Section 2.6 Covenants for Payment of Public Charges by Developer. Developer, in addition to the Rental, covenants and agrees to pay and discharge, before any fine, penalty, interest or cost may be added, all real and personal property taxes, all ad valorem real property taxes, all taxes on rentals payable hereunder and under subleases, public assessments and other public charges including but not limited to electric, water and sewer rents, rates and charges (all such taxes, public assessments and other public charges being hereinafter referred to as "Public Charges") levied, assessed or imposed by any public authority against the Leased Property, including all improvements thereon in the same manner and to the same extent as if the same, together with all improvements thereon, were owned in fee simple by Developer; provided, that Developer's obligation to pay and discharge Public Charges levied, assessed or imposed against or with respect to Leased Property shall not commence until the Possession Date. Notwithstanding the provisions of this Section 2.6, Developer shall have the right to contest the amount or validity, in whole or in part, of any Public Charges by appropriate proceedings. The City agrees to consent to and/or formally join in any such proceedings to the extent it may be allowed 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 - 45 - upon or in connection with the Leased Property. The City agrees that it will not impose any special assessment or other Public Charges (other than ad valorem real property taxes) against the Leased Property or the Improvements with respect to the construction, operation, repair and maintenance of any improvements the City is obligated to construct pursuant to this Lease or any special assessment or other Public Charges for the purpose of repayment of the Tenant Allowances to be granted by the City pursuant to the terms hereof or repayment of UDAG. The City retains all its rights to impose special assessments or other public charges for all other purposes. 4 Developer, upon written request, shall furnish or cause to be furnished, to the City Manager, official receipts of the appropriate taxing authority, or other proof satisfactory to the City Manager evidencing the payment of any Public Charges, which were delinquent or payable with penalty thirty (30) days or more prior to the date of such request. Section 2.7 Approvals and Consents. Wherever in this Lease the approval or consent of any party is required, it is understood and agreed that such approval or consent will not be unreasonably withheld or delayed. Section 2.8 Security and Police Protection. • Developer shall have the responsibility for providing all security and protection for the Developer Maintainance Area on Exhibit J. Developer and City may enter into an agreement requiring the City to provide such security and protection within the Developer Maintenance Area on Exhibit J. If the City and Developer are unable to enter into such agreement, the Developer shall be responsible for providing security and protection throughout the Developer Maintenance Area. 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 - 46 - i } spaces with appropriate augmentation in the exclusive judgment of the City Manager during periods of high pedestrian activity including (without limitation) during special public events. Section 2.9 City Improvements. The City shall provide phased replacement of seawalls and riprap, construction of a bay walk with infill and water taxi"piers adjacent to the Leased Property and infill to Bayfront Park and the Leased Property as more particularly described in the City's Construction Plans which are collectively referred to throughout this Lease as "City Improvements": Section 2.10 Condition of Leased Property. On the Possession Date the City shall deliver to the Developer possession of the Leased Property, free of any and all tenancies or other rights or claims of rights to its use and occupancy. Prior to the Possession Date, the Leased Property shall be maintained by the City and delivered to Developer in good serviceable condition, ordinary wear and tear excepted. The City agrees not to adversely or materially alter the Leased Property prior to the Possession Date without Developer's prior written approval. The obligations of Developer under this Lease (including, without limitation, the obligations to pay Rental hereunder) are subject to the delivery in good and serviceable condition (ordinary wear and tear excepted) to the Developer on the Possession Date of the Leased Property and Improvements located thereon as of the date of this Lease, including (without limitation) the restaurant building and improvements ("Restaurant Facilities") located on that portion of Area A-1 ("Restaurant Parcel") leased under a lease agreement dated May 5, 1970 by and between the City and Restaurant Associates Industries, Inc. ("Restaurant Lease"), which is shown on Exhibit A-1. If at any time - 47 - now between the date of execution of this Agreement and the Possession Date the Restaurant Facilities are substantially damaged or destroyed, the City shall, at Developer's option, which option must be exercised in writing within ninety (90) days from date of such damage or destruction or from the Possession Date, as the case may be, (i) immediately repair and restore the Restaurant Facilities, or (ii) immediately assign to Developer all of the City's right, title and interest in any payment, proceeding or award by any insurance company or other person on account of the damage or destruction. If the insurance proceeds either available to the City or Developer are inadequate to complete the repairs and restoration of the Restaurant Facilities, the City or the Developer, as the case may be, shall repair or restore to a size smaller than that existing prior to such damage and destruction based upon plans and specifications approved by the City, which approval shall not be unreasonably withheld or delayed if such reconstructed improvements harmonize with the architectural motif of the Developer Improvements and meet all other governmental approvals required. Section 2.11 Roadways and Utilities. The City shall without 16, expense to Developer or public assessment against the leased Property, provide for the abandonment of all public streets and rights of way within the Leased Property. The City shall cooperate with and assist the Developer in the termination or transfer to the Developer, of all existing easement rights with respect to water mains, sanitary sewers, storm drains, conduits, gas and electric or steam distribution lines and fire alarm, traffic and phone systems, if any, in the Leased Property, except for the County Easement and the City Storm Water Easement, and the transfer to Developer of all vacated City streets. The City shall also transfer to Developer all easements and —48— rights of way at the Leased Property within its control. All termination, abandonment, transfer and relocation, as applicable, to be done shall be done or performed in accordance with provisions of this Section 2.11 with respect to the Leased Property as rapidly as practicable and in a manner which will coordinate in a reasonable manner with construction of the Improvements. After the date Developer actually takes possession of the Leased Property, Developer shall provide temporary access across the Leased Property for persons authorized to use Miamarina, until the earlier to occur of W the commencement of construction of the Developer Improvements or (ii) the termi- nation of the agreement dated June 4, 1981 between the City and New World Marinas, Inc. ARTICLE III CONSTRUCTION OF IMPROVEMENTS Section 3.1 Conformity of Plans. Preliminary Plans and Construc- tion Plans and all work by Developer with respect to the Leased Property and the construction of Developer Improvements thereon shall be in conformity with this Agreement, the Miami Charter and Code, the South Florida Building Code, and all other applicable state, county and local laws and regulations. Section 3.2 Prel_ nary Plans. The City acknowledges that prior to the execution of this Lease, Developer has submitted to the City and the City has approved the concept plans (the "Concept Plans") for the construction of the Developer Improvements, a list of which is attached hereto as Exhibit F. Developer shall submit to the City Manager at the times hereinafter set forth, two sets of plans (the "Preliminary Plans"). For the purpose of this Lease, "Preliminary Plans" shall consist of site plans and structure elevations and - 49 - 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. 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, -50- regulations or of this Agreement shall be deemed waived thereby. In the event of a disapproval, Developer shall, within sixty (60) days after the date Developer receives the notice of such disapproval, resubmit such Preliminary Plans to.the City Manager, altered to meet the grounds of disapproval. Any resubmission shall be subject to review and approval by the City Manager, in accordance with the procedure hereinabove provided for an original submission, until the same shall be approved by the City Manager, provided that in any event Developer shall submit all Preliminary Plans for the construction of _ Developer Improvements which meet all of the grounds for disapproval of which the City Manager has given notice not later than the first anniversary of the date of this Lease. City and Developer shall in good faith attempt to resolve any disputes concerning the Preliminary Plans. Section 3.3 Construction Plans. For the purpose of this Lease, "Construction Plans" shall consist of final working drawings and specifications including (without limitation) the following information: (a) definitive architectural drawings; (b) definitive foundation and structural drawings (the "Final Substructure Plans"); (c) definitive electrical and mechanical drawings including (without limitation) plans for all lighting facilities affecting the exterior appearance of the Developer Improvements; and (d) final specifica- tions; but excluding drawings and specifications relating to subtenant improvements. Not later than one hundred twenty (120) days after approval of Preliminary Plans for a particular stage of construction, Developer shall submit to the City Manager two sets of Construction Plans for the same stage. Upon receipt thereof, the City Manager shall review the same and shall promptly (but in any event within fifteen (15) days after such receipt), give Developer notice of its approval or disapproval, setting forth in detail its reasons for - 51 - 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 Prom 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 (60) days after the date Developer received the notice of such disapproval, resubmit the Construction Plans for that stage to the City Manager, altered to meet the grounds of disapproval.. Any resubmission shall be subject to review and approval by the City Manager, in accordance with the procedure hereinabove provided for an original submission, until the same shall be approved by the City Manager, provided, that in any event Developer shall submit all Construc- tion Plans for the construction of Developer Improvements which meet all of the grounds for disapproval of which the City Manager has given notice not later than six (6) months after approval of all of the Preliminary Plans. The City and the Developer shall in good faith attempt to resolve any disputes regarding the Construction Plans. No approval by the City Manager of any Con- struction Plans or Preliminary Plans pursuant to this Article shall relieve Developer of any obligation it may have at law to file such Construction Plans with any department of the City or any other governmental authority having jurisdiction over the issues or to obtain any building or other permit or approval required by law. - 52 - Developer acknowledges that any approval given by City Manager pursuant to this Article III shall not constitute an opinion or agreement by the City that the plans are structurally sufficient or in compliance with any laws, codes or other applicable regulations, and no such approval shall impose any liability on or waive any rights of the City. Developer agrees that it shall provide the City with copies of all plans and specifications used in the construction of the Developer Improve- ments. Developer agrees to use its diligent efforts to obtain the consent of the Leasehold Mortgagee to the vesting in the City of all rights, title and interest in the plans and specifications if this Lease is terminated by reason of an Event of Developer Default. Section 3.4 Facilities to be Constructed. Developer agrees to erect the Project on the Leased Property, at its sole cost and expense, containing the facilities more particularly described in the Construction Plans which shall conform to the covenants contained in Section 2.2 and which are referred to throughout this Lease as "Developer Improvements". Section 3.5 Maintenance of Park Site and ,Leased Property The City, without cost or expense to Developer or public assessments against the Leased Property or the Improvements, at all times during the term of this Lease, (including any Renewal Term and any new lease executed pursuant to the provisions of Sections 6.1 and 6.2) shall maintain and keep or cause to be maintained and kept in good order, repair and appearance, commensurate with the quality of maintenance found in the area shown and designated as "Developer Maintenance Area" on Exhibit J all of the property and improvements (including, without limitation, the City Improvements) in the Park Site and those portions of the Leased Property shown and designated as "City Maintenance Area" on Exhibit K. - 53 - 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, of this Agreement. The City shall also permit, including (without limitation) the placement of construction trailers and staging area on or adjacent to the Leased Property at no cost to the Developer, and the mooring of construction barges or other vessels at Miamarina or the adjacent docks at locations reasonably acceptable to the City Manager and Developer, at reasonable fees or charges to the Developer. The provisions of this paragraph shall not take effect until Developer, at its sole cost and expense, shall have secured or caused to be secured comprehensive general public liability insurance as required in Article IX of this Agreement. Section 3.7 Construction Period. Developer shall commence construction of the Developer Improvements not later than fifty-five (55) days after the Possession Date or as soon thereafter as weather permits (but not earlier than the approval of the Construction Plans) and shall complete the same substantially in accordance with the Developer's approved Construction Plans in accordance with the Development Schedule attached hereto as Exhibit G. The City agrees to submit Preliminary Plans and Construction Plans for City Improvements to Developer for review and comment for any City Improvements - 54 - to be designed by City. The City shall commence construction of the City Improvements and shall complete the same substantially in accordance with the City's approved Construction Plans in accordance with Exhibit G. At the request of either party, the parties will execute and deliver from time to time such certificates, documents or instruments as may be appropriate to confirm the dates of commencement or completion of construction as above provided, which certificates, documents or instruments may be recorded by the party requesting the same at its expense. Section 3.8 Progress of Construction. Subsequent to the delivery of possession of the Leased Property to Developer, and until construction of the Developer Improvements has been completed, Developer shall keep the City Manager apprised of the progress of Developer with respect to such development and construction. During such period the work of Developer shall be available for inspection by a full-time, on -site representative of the City Manager. The Developer shall provide suitable work space and utilities for the representative at Developer's cost. Developer, by executing this Agreement, represents it has visited the site, is familiar with local conditions under which the construction and operation is to be performed, will perform all test borings and subsurface engineering generally required at the site under sound and prudent engineering practices, and will correlate the results of its test borings and subsurface engineering and other available studies and its observations with the requirements of the construction and operation of the Project. The Developer shall restore the site to its original condition after all testing, and shall provide the City with a copy of all results. The City makes no warranty as to subsoil conditions. Developer shall not be entitled to any adjustment of Rental or of any applicable time requirements in the - 55 - 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 �e City Manager shall refuse or fail to provide such certification in accordance herewith, the City Manager shall within thirty (30) days after written request by Developer, provide Developer with a written statement indicating in adequate detail in what respects Developer has failed to complete the Developer Improvements in accordance with the provisions of the Agreement, or is otherwise in default, and what measures and acts, in the opinion of the City Manager, are necessary for Developer to take or perform in order to obtain such certification. Section 3.10 Connection of Building to Utilities. Developer, at 40 its sole cost and expense, will install or cause to be installed all necessary connections between the Developer Improvements constructed or erected by it on the Leased Property and the water, sanitary and storm drain mains and mechanical and electrical conduits whether or not owned by the City and/or the Dade County Water and Sewer Authority. Developer shall pay for the additional cost, if any, of locating and installing new facilities for sewer, water, electrical, and other utilities as needed to service the Leased Property. Section 3.11 Permits and Approvals. Developer shall secure and pay for any and all permits and approvals necessary for proper construction and - 56 - completion of the Developer Improvements. Developer shall secure any and all permits and approvals required to perform any and all of the work or operations contemplated to be done or performed under any of the provisions of this Agreement including, but not limited to, any alterations and renovations made pursuant to Section 3.14 hereof, and shall pay any and all fees and charges due to and collected by the City in connection with the issuance of any such permits and approvals. If the City Manager's office shall be vacant or if the authority of the City Manager shall change such that the City Manager shall not have the full authority to perform the obligations imposed on that office envisioned under this Lease, then the City shall, upon request -of the Developer, designate such other officer or department as may be appropriate to perform the City Manager's obligations. Developer shall secure and pay for any and all permits and approvals necessary for proper construction and completion of the Developer Improvements with the exception of the permits and approvals required pursuant to Section 380.06, Florida Statutes and/or Chapter 33A of the Dade County Code, if any. 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. If the City pursues a Binding Letter of Determination pursuant to Section 380.06(4)(a), Florida Statutes and/or a Developers Agreement pursuant - 57 - 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 pursue a letter of interpretation or other Dade County Development of County Impact process for any portion of the Leased Property, the City shall be financially responsible for filing and processing any necessary documentation submitted in connection therewith, provided, however, that nothing herein contained shall be construed to require the City to take any act or expend any funds in order to comply with any of the conditions contained within any Development Order, or other official action, issued as a result of these pursuits. Developer 01 shall have the right to review and approve any such documentation prior to its submission to the relevant governmental agency, and shall'be notified of all meetings with governmental staff or officials related to the processing of any of the aforesaid administrative proceedings so that Developer or its representative shall have the option of attending such meetings. Developer agrees to cooperate with the City to the maximum extent possible in these administrative proceedings, including, but not limited to, providing such technical assistance and information as Developer may have reasonably 14 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 oz carried on by Developer under the provisions of this Agreement including alterations and renovations pursuant to Section 3.15 of this Agreement. Nothing herein shall limit the right of Developer to contest - 58 - the validity or enforceability of any statute, law, ordinance, rule, regulations, order or notice with which Developer may be required to comply hereunder. Section 3.13 Extension of Time Requirements. The times within which Developer must submit Preliminary Plans, Construction Plans and evidence of equity capital and commitments for mortgage financing, and the times within which Developer must commence and complete the development of the Leased Property and the construction of the Developer Improvements thereon as specified in this Article may be extended in writing by the City Manager in its sole discretion, for such periods of time as it deems advisable, for good and sufficient cause shown by the Developer to the reasonable satisfaction of the City Manager. Any such extension of time shall be in writing and in such form as will enable it to be recorded among the Land Records of Dade County. Section 3.14 Alterations and Renovations. After the completion of construction of the Developer Improvements, Developer from time to time may make such alterations or renovations thereof as it shall deem desirable, provided, however, that no renovation or alteration which affects the exterior appearance of the Improvements or substantially affects the overall character and appearance of any interior mall, court or public circulation area shall be made until such time as the City Manager shall have approved definitive construction plans and specifications therefore, which approval shall not be unreasonably withheld or delayed. Developer must secure and pay for any and all permits and approvals required to perform any of the contemplated alterations or renovations. Section 3.15 Art in Public Places. The Developer shall utilize 1/2 of 1 percent of all Developer construction funds ("hard -cost" line items only) - 59 - for art in the public areas of the Leased Property. In addition, Sixty Thousand and No/100ths Dollars ($609000.00) of the Tenant Allowance must be utilized for art in the public areas of the Leased Property pursuant to Ordinance No. 8227. ARTICLE IV LAND USES Section 4.1. Land Uses. Developer and the City agree, for themselves and their successors and assigns, to devote the Leased Property, and the Park Site to the uses specified in this Agreement and to be bound by and comply with all of the provisions and conditions of this Agreement. Section 4.2. Character and Operation of Improvements. The parties recognize and acknowledge that the manner in which the Leased Property and Improvements are developed, used and operated are matters of critical concern to the City by reason of ( i) the prominence of the location in Bayf 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 the level of quality of character and operation, at the time of execution and delivery of this Lease, to Harborplace in Baltimore. - 60 - for art in the public areas of the Leased Property. In addition, Sixty Thousand and No/100ths Dollars 360,000.00) of the Tenant Allowance must be utilized for art in the public areas of the Leased Property pursuant to Ordinance No. 8227. ARTICLE IV LAND 5 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 Bayf 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 the level of quality of character and operation, at the time of execution and delivery of this Lease, to Harborplace in Baltimore. -60- 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 r� 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: (i) any total or partial sale, assignment or conveyance (other than by a Leasehold Mortgage or Financing Sublease) or any trust or power, 4 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. - 61 - (iv) Any Sublease of over fifty (50) percent of the Leaseable Area of the Project to a single Subtenant or Subtenants who are related in their ownership, except for a Financing Sublease. (b) "Owner" means: W any person, firm, corporation or other entity which owns, directly or indirectly, legally or beneficially, one percent UX) or more of the stock of the General Partner of Developer (excluding any shareholder of an Owner whose shares are publicly traded) or other form of ownership interest of the Developer; and (ii) any person, firm, corporation or other entity which owns, directly or indirectly, legally or beneficially, more -than fifty percent (50%) of the stock of the General Partner of Developer or other form of ownership interest of any entity described in clause (i) or this clause (ii) , but shall not include any shareholder of an Owner whose shares are publicly traded. (c) "Owner whose shares are publicly traded" means an Owner: W who has filed an effective registration statement with the ' Securities do 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 W is listed for trading purposes on a securities exchange subject to the regulatory jurisdiction of the Securities 6 Exchange Commission (or its successor) or is publicly traded over the counter. - 62 - 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 Pact that a transfer of the stock of the General Partner of Developer or a substantial part thereof, or any other act or transaction involving or resulting in a significant change in the ownership or distribution of such stock or with respect to the identity of the parties in control of Developer or the degree thereof, is for practical purposes, a transfer or disposition of the leasehold interest in the Leased Property then owned by Developer; the qualifications and identity of Developer and any Owner are of particular concern to the community and the City. Developer further recognizes that it is because of such qualifications and identity that the City is entering into this Lease with Developer, and, in so doing, is further willing to accept and rely on the obligations of Developer for the faithful performance of all undertaking and covenants by it to be performed. Section 5.3. Transfers. Developer, on behalf of itself and any and all Owners, represents and warrants that neither Developer nor any Owner has made, created or suffered any Transfers. Except as permitted pursuant to subparagraphs (a) through U) hereof, no Transfer may be made, suffered or created by Developer or any Owner. The following Transfers shall be permitted hereunder: -63- ( a) Any Transfer by Leasehold Mortgage to an Institutional Investor or to an agent, designee or nominee of an Institutional Investor which is wholly owned or controlled by an Institutional Investor or pursuant to a Financing Sublease, pursuant to Article VI. (b) Any Transfer directly resulting from the foreclosure -of a Leasehold Mortgage or the granting of a deed in lieu of foreclosure of a Leasehold Mortgage or any Transfer made by the purchaser at foreclosure of a Leasehold Mortgage or by the grantee of a deed in lieu of foreclosure of a Leasehold Mortgage, provided that such purchaser or grantee is an Institutional 0 Investor or an agent, designee or nominee of an Institutional Investor which is wholly owned or controlled by an Institutional Investor, and that such purchaser or grantee within six (6) months after taking possession of the Project, shall have entered into an Acceptable Operator's Agreement as described in subsection 6(c)(iv) of this Agreement. (c) Any Transfer directly resulting from a conveyance to a Lender/ Landlord of the Developer's interest provided that such Transferee, within thirty (30) days after taking possession of the Project, shall have entered ,;4 into an Acceptable Operator's Agreement as described in Subsection VI(c)(iv) of this Agreement. (d) From and after the date that the Project has been in operation for seven and one-half (7-1/2) years after the Opening Date, any Transfer to (i) an Acceptable Operator consented to by the City Manager and City Com- mission or (ii) a purchaser having a good reputation and financial resources in the opinion of the City Manager and the City Commission to own the Project (an "Acceptable Purchaser") that shall have entered into an Acceptable Opera- tors Agreement with an Acceptable Operator. If Developer shall dispute a - 64 - withholding of consent by the City pursuant to this subsection (d), Developer may submit such dispute to arbitration pursuant to Section 10.5 hereof. The basis for such arbitration shall be the reasonableness of the City Manager and City Commission's decision as to whether or not such purchaser or operator met the criteria herein set forth to qualify as an Acceptable Purchaser and/or an Acceptable Operator. (e) Any Transfer to a joint venture, general or limited partnership, joint stock association or Massachusetts business trust, a substantial interest in which is held by Developer and the other interests in which are held by an Institutional Investor or by such other persons, firms, corporations, or other entities as to which the City Manager shall have given his approval in his sole discretion, provided that, within thirty (30) days after gaining possession of the Project, the Transferee shall have entered into an Acceptable Operator's Agreement as described in Subsection 6.1(c)(iv) of this Agreement. (f) Any Transfer to an entity which is not an Owner, all of the stock or other form of ownership interest of which is owned by an Owner. (g) Any Transfer by a limited partner who is an Owner who is a Black I American or a Hispanic American to a Black American or a Hispanic American or to an entity which is not an Owner but is owned or controlled by a Black American or a Hispanic American immediately after such Transfer, which is consented to by the City Manager and City 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. - 65 - (i) Any Transfer by an Owner who is a limited partner of Developer and who also is a Slack 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 Slack American or Hispanic American. Any consent to a Transfer shall not waive any of the City's rights to consent to a subsequent Transfer. Any Transfer made in violation of the terms hereof shall be null and void and of no force and effect. A Section 5.4. Notice of Transfer; Information as to Shareholders. (a) With respect to any Transfer which must be approved by the City, Developer shall give or cause to be given to the City written notice (including all information necessary for the City to make an evaluation of the proposed Acceptable Operator according to the requirements of this Agreement) of any Transfer of which Developer or its officers shall have knowledge, not less than sixty (60) days prior to any such proposed Transfer and the City shall within thirty (30) days of its receipt of such information, advise Developer if it shall consent to same. If the City shall not consent to a Transfer, the City Manager shall state the reasons for such disapproval in his notice to Developer withholding his consent. If the City is not required to consent to a Transfer pursuant to the terms hereof, Developer shall notify the City in writing of same within thirty (30) days after the date of Transfer. (b) Developer shall from time to time throughout the term of this Lease as the City shall reasonably request, furnish the City with a complete statement, subscribed and sworn to by the President or Vice -President and the Secretary or Assistant Secretary of the general partner of Developer, setting - 66 - forth the full names and address of holders of partnership interests in Developer, or any general partners of Developer or the stock of any general partner of Developer and the extent of their holdings, and in the event any other parties have a beneficial interest in such stock, their full names and addresses and the extent of such interest as determined or indicated by the records of Developer, by inquiry which such officers shall make of all parties who on the basis of such records own a one percent (A) or more ownership interest in Developer or by such other knowledge or information as either of such officers shall have. Notwithstanding the foregoing, the information required by this subparagraph (b) shall not be required. to be furnished with respect to the shareholders of any Owner whose shares are publicly traded. Section 5.5. Effectuation of Certain Permitted Transfers. No Transfer of the nature described in subsections (d) and (e) of section 5.3 shall be effective unless and until the entity to which such Transfer is made, by instrument in writing satisfactory to the City Manager and in form recordable among the land records, shall, for itself and its successors and assigns, and especially for the benefit of the City, expressly assume all of the obligations of Developer under this Lease and agree to be subject to all conditions and restrictions to which Developer is subject; provided, however, that any Lender, Leasehold Mortgagee, Lender/ Landlord transferee shall not be required to assume any personal liability under this Lease with respect to any matter arising prior or subsequent to the period of such transferee's actual ownership of the leasehold estate created by this Lease (it being understood, nevertheless, that the absence of any such liability for such matters shall not impair, impede or prejudice any other right or remedy available to the City for default by Developer); and provided further, that the fact that any - 67 - 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 ability, in the Developer's opinion, to assume the obligations of the City under this Lease and the purchaser, assignee, mortgagee or trustee shall expressly agree to assume the obligations of the City under this Lease, in a form satisfactory to Developer and any Leasehold Mortgagee. Notwithstanding any such transfer and assumption, the City shall not be released from its obligations pursuant to Sections 2.8 and 3.5, which obligations are personal to the City and shall remain in effect during the term of this Lease. - 68 - Section 5.7. Subletting. At the City's request, Developer shall provide to the City a copy of all Subleases for the Project. Developer shall incorporate in all Subleases provisions concerning rentals and expenses that are compatible with the Annual Base Rental formula in this Agreement. Developer shall have the right, to enter into Subleases of any part of the Leased Property or Improvements at any time and from time to time during the term of this Lease with such Subtenants and upon such commercially reasonable terms and conditions as Developer shall, in its sole discretion, deem fit and proper, provided, however, that Developer shall not enter into any Sublease with any Subtenant which does not deal with Developer at arm's length without first obtaining the City's approval, which approval the City may in its sole discretion withhold. If Developer shall contemplate making any Sublease with respect to which the City's approval is required pursuant to the foregoing sentence, Developer shall submit to the City a copy of such proposed Sublease together with any information concerning the identity of the Subtenant as the City may reasonably request. Within sixty (60) days after submission of such proposed Sublease and information, the City shall notify Developer whether the proposed Sublease is approved. In the event the City shall fail to so respond within sixty (60) days after submission of such Sublease and information, the same shall be conclusively deemed to have been approved by the City. Section 5.8. Minority Participation in Ownership. Developer agrees that not less than twenty percent (20%) of the ownership interest in Developer shall be held by persons who are Black Americans or Hispanic Americans or entities who would qualify as a Minority Business Enterprise controlled by Black Americans or Hispanic Americans as the term "Minority Business Enterprise" is defined in that certain Minority Participation Agreement - 69 - 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 Lease or for the long-term financing or refinancing of any such Improvements. In no event may the amount of such financing or refinancing exceed Development Costs. Developer shall deliver to City promptly after execution by Developer a true and verified copy of any Leasehold Mortgage (as defined below), or any Financing Sublease and any amendment, modification or extension thereof, together with the name and address of the owner and holder thereof. Developer may not encumber the leasehold estate created by this Lease as security for - 70 - any indebtedness of Developer with respect to any other property now or hereinafter owned by Developer and/or The Rouse Company. (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 fPW 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 A preliminary title report current as of the time of any determination of the priorities of such Leasehold Mortgage and prepared by a generally -recognized title insurance company doing business in Miami, Florida. (c) During the continuance of any Leasehold Mortgage until such time as the lien of any Leasehold Mortgage has been extinguished, and if a true and verified copy of such Leasehold Mortgage shall have been delivered to the City Manager together with a written notice of the name and address of the owner and holder thereof as provided in Section 6.1(a) above: - 71 - W The City shall not agree to any mutual termination nor accept any surrender,of this Lease (except upon the expiration of the full term of this Lease) nor shall the City consent to any material amendment or modification of this Lease or waive any rights or consents it may be entitled to pursuant to the terms hereof, without the prior written consent of Lender. (ii) Notwithstanding any default by Developer in the performance or observance of any covenant, condition or agreement of this Lease on the part of Developer to be performed or observed, the City shall have no right to terminate this Lease even though an Event of Default under this Lease shall have occurred and be continuing, unless and until the City Manager shall have given Lender written notice of such Event of Default and Lender shall have failed to remedy such default or to acquire Developer's lease- hold estate created hereby or to commence foreclosure or other appropriate proceedings in the nature thereof, all as set forth in, and within the time specified by, this Article VI. (iii) Subject to the provisions of subparagraph (iv) immediately below, Lender shall have the right, but not the obligation, at any time prior to termination of this Lease and without payment of any penalty, to pay all of the rents due hereunder, to provide any insurance, to pay any taxes and make any other payments, to make any repairs and improvements, to continue to construct and complete the Developer Improvements, and do any other act or thing required of Developer hereunder, and to do any act or thing which may be necessary and proper to be done in the performance and observance of the covenants, conditions and agreements hereof to prevent the termination of this Lease. All payments so made and all - 72 - things so done and performed by Lender shall be as effective to prevent a termination of this Lease as the same would have been if made, done and performed by Developer instead of by Lender. (iv) Should any Event of Default under this Lease occur, Lender shall have sixty (60) days after receipt of notice from the City Manager setting forth the nature of such Event of Default, to remedy same and, if the default is such that possession of the Project may be reasonably necessary to remedy the default, Lender shall, within such sixty (60) day period, commence and diligently prosecute a foreclosure action or such other proceeding as may be necessary to enable Lender to obtain such possession, provided that (a) Lender shall have fully cured any default in the payment of any monetary obligations of Developer under this Lease within such sixty (60) day or longer period and shall continue to pay currently such monetary obligations as and when the same are due, (b) Lender shall within six (6) months of the date that it takes possession of the Leased Property enter into an agreement on terms and conditions reasonably acceptable to the City with an Acceptable Operator for the continued operation of the Project (hereinafter called "Acceptable Operator's Agreement").. and (c) Lender shall have acquired Developer's leasehold estate created hereby or commenced foreclosure or other appropriate proceedings in the nature thereof within such sixty (60) day period or prior thereto, and shall be diligently and continuously prosecuting any such proceedings to completion. All rights of the City Manager to terminate this Lease as the result of the occurrence of any such Event of Default shall be subject to and conditioned upon the City Manager having first given Lender written notice of such Event of Default -73- '�' and Lender having failed to remedy such default or acquire Developer's leasehold estate created hereby or commence foreclosure or other appropriate proceedings in the nature thereof as set forth in and within the time period specified by this subparagraph (iv). (v) An Event of Default under this Lease which in the nature thereof cannot be remedied by Lender shall be deemed to be remedied if (a) within sixty (60) days after receiving written notice from the City Manager setting forth the nature of such Event of Default, Lender shall have acquired Developer's leasehold estate created hereby or commenced foreclosure or other appropriate proceedings in the nature thereof, (b) Lender shall diligently and continuously prosecute any -such proceedings to completion, (c) Lender shall have fully cured any default in the payment of any monetary obligations of Developer under this Lease which do not require possession of the Project within such sixty (60) days period and shall thereafter continue to faithfully perform all such monetary obligations which do not require possession of the Project, and (d) within six (6) months after Lender shall have gained possession of the Project, Lender shall have entered into an Acceptable Operator's Agreement. Upon the taking of possession of the Project by Lender, Lender shall perform all of the obligations of the Developer hereunder as and when the same are due except that a Lender shall not be bound by the provisions of Section 5.8 hereof. Notwithstanding the foregoing, the City agrees that Lender shall not be obligated to complete construction of the Developer Improvements if Lender shall succeed to Developers estate under this Lease. Any assignee or successor in interest to a Lender that has taken possession of the Leased Property must, however, assume all of Developer's - 74 - obligations hereunder (except as set forth in Section 5.8 hereof), including, but not limited to, the construction obligation. (vi) If the Lender is prohibited by any process or injunction issued by any court or by reason of any action by any court having jurisdiction of any bankruptcy, debtor rehabilitation or insolvency proceedings involving Developer from commencing or prosecuting foreclosure or other appropriate proceedings in the nature thereof, the times specified in subparagraphs (iv) and (v) above for commencing or prosecuting such foreclosure or other proceedings shall be extended for the period of such prohibition; provided that Lender shall have fully cured any default in the payment of any monetary obligations of Developer under this Lease and shall continue to pay currently such monetary obligations as and when the same fall due, and provided that Lender shall diligently attempt to remove any such prohibition. At any time that a Lender is in possession of the Leased Property pursuant to the terms hereof and at all times 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 to have been given unless and until a copy thereof has been mailed to Lender. - 75 - �s�.. '° - � _fit u -^-:x a� .Y.,.,• , -: ,..,� �Ae ;i +sip ,: f.' ;;'^: •..ifs. .rJ..'' _ _ ;r7�,I tea. ,j..4'i: ax�{:.. 2'i'Xy^` •'ice ^�,�yt 1•:i':ii� ._.w. .. :�r is �.,. .. Z (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 lease, and in connection with any such assignment or transfer Lender takes back a mortgage or deed of trust encumbering such leasehold interest to secure a portion of the purchase price given Leasehold Mortgage as - 76 - contemplated under this Section 6.1, Lender shall be entitled to receive the benefit of this Article VI and any other provisions of this Lease intended for the benefit of the holder of a Leasehold Mortgage. Any person or entity to whom this Lease or any such new lease is assigned must either enter into or assume Lender's obligations under an Acceptable Operator's Agreement. (ix) Should the City terminate this Lease by reason of any default by Developer hereunder, the City Manager shall give notice thereof to all Leasehold Mortgagees and the City Manager shall, upon written request by Lender to the City Manager received within sixty (60) days after such termination, execute and deliver a new lease of the Project to Lender for the remainder of the term of this Lease with the same covenants, conditions and agreements (except for any requirements which have been satisfied by Developer prior to termination) as are contained herein, provided, however, that the City's execution and delivery of such new lease of the Project shall be made without representation or warranty of any kind or nature whatsoever, either express or implied, including ' without limitation, any representation or warranty regarding title to the Project or any Improvements or the priority of such new lease (except as to actions taken by the City during the period commencing on the date of termination of this Lease and terminating on the date of such new Lease). The City's delivery of any Improvements to Lender pursuant to such new lease shall be made without representation or warranty of any kind or nature whatsoever, either express or implied; and Lender shall take any Improvements "as -is" in their then current condition (except as to any actions taken or improvements made by the City during such time as the - 77 - A 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 monetary defaults hereunder and having remedied and cured or has commenced and is diligently completing the cure of all non -monetary defaults of Developer susceptible to cure by any party other than by Developer. If the City receives written requests in accordance with the provisions of this Section 6.1(ix) from more than one Leasehold Mortgagee, the City shall -only be required to deliver the new lease to the Leasehold Mortgagee who is, among those Leasehold Mortgagees requesting a new lease, the holder of the most junior Leasehold Mortgage, provided that such Leasehold Mortgagee shall, not later than the execution of such new lease, either (x) pay in full the sums secured by any or all Leasehold Mortgages which are prior in lien to the Leasehold Mortgage held by such Leasehold Mortgagee, or (xx) agree to reinstate the liens of any or all Leasehold Mortgages which are prior in lien to the Leasehold Mortgage held by such Leasehold Mortgagee with the same relative priority as existed prior to the termination of this Lease. If any Leasehold Mortgage having the right to a new lease pursuant to this Section 6.l(ix) shall elect to enter into a new lease but shall fail to do so or shall fail to take the action required above, the City shall so notify all other Leasehold Mortgagees (if any) and shall afford such other Leasehold Mortgagee a period of sixty -7a- W (60) days Prom such notice within which to elect to obtain a new lease in accordance with the provisions of this Section. Except for any liens reinstated pursuant to this Section, any new lease entered into pursuant to this section shall be prior to any mortgage or other lien, charge or encumbrance on the fee of the Leased Property or the improvements and shall have the same relative priority in time and in right as this Lease and shall have the benefit of all of the right, title, powers and privileges of Developer hereunder in and to the Leased Property and the Developer Improvements. At Developer's request, the City will enter into an agree- ment with any Leasehold Mortgage granting to the Leasehold Mortgagee the rights set forth in this Article. If such new lease is entered into pur- suant hereto, the Lender shall be entitled to offset from the previous rentals due the City under this Lease, the net operating profit, if any, made by the City during the period that the City shall have operated the Project. (x) City and Developer shall cooperate in including in this Lease by suitable amendment from time to time any provision which may be requested by any proposed Lender, or may otherwise be reasonably necessary, to implement the provisions of this Article VI; provided, however, that any such amendment shall not in any way affect the term hereby demised nor affect adversely in any material respect any rights the City under this Lease. (xi) All rights and benefits afforded to a Leasehold Mortgagee hereunder shall also be afforded to a party providing financing to Developer pursuant to a Financing Sublease. - 79 - 121 Section 6.2. No -Waiver . of Developer's Obligations or Citv'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 , off. Failure of Developer to pay any Rental, Additional Rental or Public Charges or any other payments of money as herein provided or required, when due and the continuance of such failure for a period of ten (10) days after notice thereof in writing. In the event that any payment or installment of Rental is not paid to the City on the date the same becomes due'and payable, Developer covenants and agrees to pay to the City interest on the amount thereof from the date such payment or installment became due and payable to the date of payment thereof, at the Default Rate. All other payments of money required to be paid to the City by the Developer under this Lease, including interest, penalties and contributions, shall be treated as Additional Rent. (b) Failure - Performance of Other Covenants, Etc. Failure of Developer to perform any of the other covenants, conditions and agreements - 80 - 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 f ailed to perform any such covenants, conditions and agreements), unless such default was not caused or created by TM 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. IK if an order or relief shall be entered upon any petition filed by or against Tenant, as debtor, seeking relief (or instituting a case) under Chapters 7, 99 11 or 13 of the Bankruptcy Code of 1978, 11 U.S.C. (Sec. 10 et seq.) or any successor thereto; or 2. if Tenant admits its inability to pay its debts, or if a receiver, trustee or other court appointee is appointed for all or a substantial part of Tenant's property; or 3. If the leasehold interest of Tenant is levied upon or tf attached by process of law; or 4. if Tenant makes an assignment for the benefit of creditors or takes the benefit of any insolvency act, or if any proceedings are filed by or against Tenant to declare Tenant insolvent or unable to meet its debts; or 5. if a receiver or similar type of appointment or court appointee or nominee of any name or character is made for Tenant or its property; or - 81 - 1 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 -82- �.al'+��..'wti•��r .N-, i1-• -4-{i' "2;`''.: i. ;k`.'n`.•, i •-i'�y:ii �'� !v'ert;,"�'ny`:.i 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 Def cult" . (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: W the right and option to terminate this Lease and all of its obligations hereunder by giving notice of such election to the City, whereupon this Lease shall terminate as of the date of such notice; (ii) the right to a writ of mandamus, injunction or other similar relief, available to it under Florida law against the City (including any or all of the members of its governing body, and its officers, agents or representative) provided, however, that in no event shall any member of such governing body or any of its officers, agents or representatives be personally liable for any of the City's obligations to Developer hereunder; (iii) the right to maintain any and all actions at law or suits in equity or other proper proceedings to obtain damages resulting from such default. Section 7.4. Unavoidable Delay. For the purpose of any of the provisions of this Agreement, neither the City (including the City Manager) nor Developer, as the case may be, nor any successor in interest, shall be considered in breach of or in default in any of its obligations, including but - 83 - �t'..�i - at'� _Vie d �• :ff r` t.: t' , • _�-�`-. _ �. ... �.+Y Y:S�M�i.''Y'•t x'Y,, ;'!:G' ._._ .. i'ai' _. � a .� +:•;5 �. ':%^.v� �'L.' k.. City has failed to perform any of such covenants, conditions and agreements) a4 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 Def cult" . (b) Remedies for City's Default. If an Event of the City's Default shall occur, Developer, to the fullest extent permitted by law, shall have the right to pursue any or all of the following remedies: (i) the right and option to terminate this Lease and all of its obligations hereunder by giving notice of such election to the City, whereupon this Lease shall terminate as of the date of such notice; (ii) the right to a writ of mandamus, injunction or other similar relief, available to it under Florida law against the City (including any or all of the members of its governing body, and its officers, agents or representative) provided, however, that in no event shall any member of such governing body or any of its officers, agents or representatives be personally liable for any of the City's obligations to Developer hereunder; (iii) the right to maintain any and all actions at law or suits in equity or other proper proceedings to obtain damages resulting from such default. Section 7.4. Unavoidable Delay. For the purpose of any of the provisions of this Agreement, neither the City (including the City Manager) nor Developer, as the case may be, nor any successor in interest, shall be considered in breach of or in default in any of its obligations, including but - 83 - '�N y 8'... Y jNr 4 z.. '+F ri. • 4 V not limited to the preparation of the Leased Property for development, or the beginning and completion of construction of the Developer Improvements or City Improvements, or progress in respect thereto, in the event of unavoidable delay in the performance of such obligations due to strikes, lockouts, acts of God, inability to obtain labor or materials due to governmental restrictions, enemy action, civil commotion, fire, unavoidable casualty or other similar causes beyond the reasonable control of a party (not including such party's insolvency of financial condition), it being the purpose and intent of this paragraph that in the event of the occurrence of any such unavoidable delays ?� the time or times for the performance of the covenants, provisions and agreements of this Lease, including but not limited to the obligations of the City and the City Manager with respect to the preparation of the Leased Property for development and completion of the City Improvements or of Developer with respect to construction of Developer Improvements, shall be extended for the period of unavoidable delay; provided, however, that the party seeking the benefit of the provisions of this Section shall, within thirty (30) days after such party shall have become aware of such unavoidable delay, give notice to the other party thereof in writing of the cause or causes thereof and the time delayed. The parties hereto agree if any event shown on Exhibit G shall not occur at the time required for same as a result an event of Unavoidable Delay, the Rent Commencement Date shall be postponed to a date extended by the period of such delay or the Opening Date, whichever is earlier. Notwithstanding the foregoing, Developer agrees to use reasonable and diligent efforts to open the Bayside Specialty Center for business with the general public by October 31, 1986. - 84 - f fi •5` ��'n+'•'.' s^7r. v._..'t�c ;.E,*a.. - �,t _ if /..r`.• i.`,k �=A . ?:dr".' ... . . .__. ., r -Mit.n -_r. rt'�3"A '.l'.: ,.__ _ y .r� ;,^i,��,' ±fi•.::t .f��x. `.rM^er�s�,,.`.+i':M»",'.y���. �^' Section 7.5. Obligations, Rights and Remedies Cumulative. The rights and remedies of the parties to this Agreement, whether provided by law or by this Agreement, shall be cumulative, and the exercise by either party of any one or more of such remedies shall not preclude the exercise by it, at the same or different times, of any other such remedies for the same default or breach or of any of its remedies for any other default or breach by the other party. No waiver made by either party with respect to performance, or manner or time thereof, of any obligation of the other party or any condition to its own obligation under this Agreement shall be considered a waiver of any rights of the party making the waiver with respect to the particular obligations of the other party or condition to its own obligation beyond those expressly waived and to the extent thereof, or a waiver in any respect in regard to any other rights of the party making the waiver or in regard to any obligation of the other party. ARTICLE VIII PROTECTION AGAINST MECHANICS' LIENS AND OTHER CLAIMS. INDEMNIFICATION ,^ Section 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. - 85 - 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 Pees, court costs and other necessary disbursements). Any such amounts paid by the City and the amount of any such expenses or costs incurred by the City, if not paid by Developer to the City within thirty (30) days after the date Developer receives written notice from the City of the amount thereof and demand for payment of the same, shall, together with interest thereon at the Default Rate from the date of the receipt by Developer of the aforesaid written notice and demand to the date of payment thereof by Developer, be treated as Additional Rental, and shall be payable by Developer to the City ,. not later than the next monthly installment of the Annual Basic Rental becoming due. (b) Payment of Materialmen and Suppliers. Developer shall make, or 1:. 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 an of the Improvements � r Y required by this Agreement to be constructed by Developer on the Leased .,: Property. Nothing in this subparagraph (b) shall limit the right of Developer <A to contest, in good faith, by legal proceedings or otherwise, whether any y43' amount claimed or alleged to be due and owing to any such person is legally due w' and owing and to withhold payment of such amounts pending resolution of such dispute. - 86 - Section 8.2. Indemnity. Notwithstanding any policy or policies of insurance required of Developer, Developer shall indemnify and save harmless the City from and against any and all actions, claims or demands, suits at law, in equity or before administrative tribunals, due to the negligence of Developer, its agents, servants, employees or contractors arising out of the use or occupancy of the Leased Property by such persons. Developer shall defend any and all such actions, claims, demands or suits on behalf of the City at Developer's sole cost and expense. The City shall indemnify and save harm- less Developer from and against any and all claims or demands, suits at law, in equity or before administrative tribunals, due to the negligence of the City, its agents, servants, employees, or contractors arising out of the use or occupancy of the Leased Property by such persons. The City shall defend any and all such action, claims, demands or suits on behalf of Developer at the City's sole cost and expense. ARTICLE IX INSURANCE Section 9.1. Insurance Coverage. Beginning on the Possession Date and during the term of this Lease, Developer at its sole cost and expense shall maintain or cause to be maintained: (a) Property Insurance. Insurance on the Improvements against All Risks of physical loss or damage, including the expense of the removal of debris of such property as a result of damage by an insured peril. Coverage shall be written on as broad an All Risk form as is commercially available. The insurance shall be written on a replacement cost basis. If the policy or policies of insurance contain a co-insurance requirement, the policy or - 87 - policies shall contain an agreed amount endorsement. During the construction period, property insurance may be provided on a Completed Value Builder's Risk form. The City and Developer shall be listed as named insureds on such Builder's Risk Policy. The term "Improvements", as used in this paragraph, shall be deemed to include all personal property furnished or installed on the premises and owned by the Developer, and the insurance herein provided shall cover the same. The adequacy of the Insurance coverage may be reviewed periodically r.. 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. ..-fR."a •i In the event that insurance proceeds are inadequate to rebuild and restore the damaged Improvements to substantially their previous condition before an y: 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 rz same notwithstanding the fact that such insurance proceeds are inadequate. (b) Rental Value Insurance. Rental value insurance, so that Developer will be insured against loss of rental income from the improvements occasioned by any of the insured against perils included in the Property Insurance policy during the period required to rebuild, repair or replace the property damaged, which policy or policies of insurance shall expressly provide by endorsement thereon that the interest of the City as lessor under this lease shall be covered to the extend earned, in an amount equal to the total of Annual Basic Rental payable during said period of business interruption. Rental Value Insurance shall commence at such time as Rentals are due and - 88 - .x s payable to the City, whether or not the 8ayside Specialty Center is then open for business with the general public. The adequacy of the Rental Value Insurance may be reviewed by the City Manager every five years. Any review by the City Manager shall not constitute an approval or acceptance of the amount of insurance coverage. (c) Automobile Liability Insurance. Automobile liability insurance and equivalent policy forms covering all owned, non -owned, and hired vehicles used in' connection with any work arising out of this Agreement. Such ,r insurance shall afford protection to at least a combined single t for '.` bodily injury and property damage liability of $1,000,000 per occurrence. The 71 adequacy of the automobile liability insurance coverage may be reviewed eve Y 9 Y ='Y 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, 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 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. - 89 - It is the City's intent that any liability insurance provided pursuant to this Section shall be deemed primary insurance coverage in the event of any loss arising from the premises and operations covered by this Agreement. (e) Worker's Compensation. Worker's Compensation and Employer's Liability Insurance in compliance with Florida Statute 440. For work that is subcontracted, the Developer shall require the subcontractor to provide Worker's Compensation insurance for all of the subcontractor's employees. (e) CoLies. Developer shall furnish Certificates of Insurance with is 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 e;� City that all premiums have been paid. Section 9.2. Responsible Companies - Blanket Insurance Permitted. All insurance provided for in this Article IX shall be effected under valid and enforceable policies issued by insurers of recognized responsibility, which are licensed to do business in the State of Florida. All such companies must be rated at least "A" as to management, and at least "Class X" as to financial strength in the latest edition of Best's Insurance Guide, published by Alfred M. Best Co., Inc., 75 Fulton Street, New York, NY. The insurance required by this Article may be part of another policy or policies of the - 90 - 5 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 .h the minimum required by this Section, and it cannot be reduced in any manner �s by losses occurring at other properties or locations. r: Section 9.3. Named Insureds - Notice to City of Cancellation. All policies of insurance described herein shall name Developer and the City as - =:- J insureds as their respective interests may appear. The policies shall also name as insured, if required by either party or required pursuant to the terms of any Leasehold Mortgage or Financing Sublease, any Leasehold Mortgagee as the interest of any such Leasehold Mortgagee may appear. Notwithstanding any such r•`_ 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 `.4 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 Yea ,r endorsement to the effect that no act or omission of the Developer shall affect rN 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 -91- 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 the City Manager shall relieve or release or be construed to relieve or release Developer from any liability, duty or obligation assumed by, or imposed upon it by the provisions of this Agreement. Section 9.6. Loss or Damage Not To Terminate Rental or this to"'� Agreement. Any loss or damage by fire or other casualty, of or to any of the Improvements on the Leased Property at any time, shall not operate to terminate this Agreement or to relieve or discharge Developer from the payment of Rental, or from the payment of any money to be treated as Additional Rent in respect thereto, pursuant to this Agreement, as the same may become due and payable, as provided in this Agreement; or from the performance and fulfillment of any of Developer's obligations pursuant to this Agreement. Section 9.7. Proof of Loss. Whenever any Improvements, or any part i� thereof, constructed on the Leased Property (including any personal property furnished or installed in the premises) shall have been damaged, or destroyed, Developer shall promptly make proof of loss in accordance with the terms of the insurance policies and shall proceed promptly to collect or cause to be collected, all valid claims which may have arisen against insurers or others based upon any such damage or destruction. Developer shall promptly give City written notice of such damage or destruction. Section 9.8. Property Insurance Proceeds. - 92 - .s a:- _. .. - _. ,-_ .'M ._�=4'.... .. `ar. � - � 1" ' • ..... - . ���'�,.:, p -. ':.N-n,'�'::'ia,;+,�'�..K .. S3'x'r¢'.; ...i.Y n (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: W Directly to Developer, if the total recovery is $500,000.00 or less which amount shall be adjusted periodically every five (5) years commencing with the Rent Commencement Date by the percentage change in the Consumer Price Index (all urban consumers) as published by the Bureau of Labor Statistics of the Department of Labor (the "CPI") for such 5 year period, or in the event the CPI has changed or is no longer published, such other appropriate measure of changes in the relative purchasing power of the dollar agreed upon by the parties, except that if Developer is then in default under this Lease, such proceeds shall be paid over to City who shall apply the proceeds first to the rebuilding, replacing and repairing of the Leased Property and then to the curing of such default. Any remaining proceeds shall be paid over to Developer. (ii) To the Insurance Trustee, if the total recovery is in excess of $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 - 93 - W Trustee shall be such commercial bank or trust company as shall be designated by Developer and approved by the City Manager, which approval shall not be unreasonably withheld or delayed. (b) Disposition of Insurance Proceeds for Reconstruction. All amounts received upon such policies shall be used, to the extent required, for the reconstruction, repair or replacement of the Improvements and the personal property of Developer contained therein, so that the Improvements or such personal property shall be restored to a condition comparable to the condition prior to the loss or damage (hereinafter referred to as "Reconstruction Work"). From the Insurance proceeds received by the Insurance Trustee, there shall be disbursed to Developer such amounts as are required for the Reconstruction Work. Developer shall submit invoices or proof of payment to the 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 any Leasehold Mortgage or Financing Sublease, shall at any' time authorize the Lenders or Lender Landlords on his behalf or in his stead to enter upon the Leased Property and undertake or prosecute the reconstruction or repair of any building on the Leased Property damaged or destroyed by fire, or other insured -against hazard or peril and to have and receive for Developer or Leasehold Mortgagees' use for such purpose such insurance proceeds, then in that case said insurance proceeds shall be equally available to such Leasehold Mortgagee as to Developer as provided in subsection (b) of this Section 9.8, -94- obi and it shall in like manner and to like extent at the request of any such Leasehold Mortgagee, be applied to the reconstruction or repair of any such building so damaged or destroyed. Section 9.9. Covenant for Commencement and Completion of Reconstruction. Subject to the provisions of Section 9.1(b) and Section 9.10, Developer covenants and agrees to commence the Reconstruction Work as soon as practicable but in any event within six (6) months after the insurance proceeds in respect of the destroyed or damaged Improvements or personalty have been received, and to fully complete such Reconstruction Work as expeditiously as possible consistent with the nature of the damage, but in any event within eighteen (18) months from the start thereof; provided, that if it is not practicable to commence such Reconstruction Work within such six (6) month period, or to complete such Reconstruction Work within such eighteen (18) month period, then such Reconstruction Work may be commenced and completed within a longer period, provided that such period shall be approved t 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 sane was in immediately prior to such damage or destruction or to a condition mutually acceptable to the parties hereto. - 95 - WN 10 Maw Section 9.10. Developer's Rights In the Event of Uninsured Major Casual. 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 f 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 i 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 portion of the Leased Property as to which this Lease shall have been terminated and shall clear and grade such portion of the Leased Property. The City and Developer shall, at the request of either, execute such instruments or documents as may be reasonably necessary or desirable in order to amend this Lease to delete such portion of the Leased Property from the description of the property demised hereby. If the Improvements or the Leased Property which were uninsured, or for which there were no insurance proceeds, shall be substantially damaged or destroyed in any single casualty so that the Improvements or the Leased Property shall be unsuitable for restoration for Developer's continued use and occupancy in Developer's business, then at Developer's option, in lieu of rebuilding, replacing or repairing the Improvements or the Leased Property as provided in this Lease, Developer may - 96 - 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 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. 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 Lease such that, in the good faith opinion of Developer, it shall be economically unfeasible to use and en- joy the Improvements on the Leased Property, then the Developer shall have the right to terminate this Lease upon giving the City written notice of the exer- cise of such option and this Lease shall terminate and become null and void as of the date of termination specified in such option, and Rental and any money treated as Additional Rental and Public Charges shall be prorated and paid by Developer as of the date of such termination. In addition to other matters -97- which Developer shall consider in determining the foregoing economic unfeasibility, the Developer shall consider whether comparable, suitable r parking would be available in a close proximity to the Leased Property. If Developer shall exercise its right to terminate this Lease as above set forth, Developer shall, provided that the City shall actually demolish the Developer Improvements, pay to the City an amount equal to fifty percent (50%) of theft t actual cost that the City shall incur in connection with the demolition of the Developer Improvements. ARTICLE X CONDEMNATION Section 10.1. Entire Leased Property Taken by Condemnation. In 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 - 98 - - .- r.Aa..: r ...i why'.:.. 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 mamer and acting with the authority provided in this Article. Section 10.2. Partial Taking of Leased Property by Condemnation. A (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 - 99 - f 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 Pact 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 it unimproved and unencumbered; Third: There shall be paid to the Developer the amount required to complete the remodeling and repairs to the Improvements pursuant to (a) above; Fourth: City and Developer shall be paid portions of the balance of said award or awards, if any, which are allocable to and represented by the value of their respective interest in the Leased Property as found by the court or jury in its condemnation award, or if no such separate awards are obtained, such balance shall be paid to Developer and the City in the same proportion - 100 - a Em as the then Fair Market Value of each party's respective interest or estate in the Leased Property and the Improvements bears to the total Fair Market Value of the interests and estates of both parties in the Leased Property and Improvements. In the event that the parties cannot agree upon the Fair Market Value of their respective interests and estates in the Leased Property and Improvements within thirty (30) days of the time of the taking, such value shall be determined by the Arbitration Panel, selected in the manner and acting with the authority provided in Section 10.5 of this Article. Section 10.3. Adjustment of Rent Upon Partial Taking. In the event a part of the Leased Property and the Improvements thereon, if any, shall be taken for any public use or purpose by the exercise of the power of eminent domain, or shall be conveyed by City and Developer acting jointly to avoid proceedings of such taking, then Rental, and money to be treated as Additional Rental pursuant to this Agreement and the Public Charges in respect of such Og part of the Leased Property shall be paid by Developer to the date of such taking or conveyance, and after such date the Rent for the remainder of the Leased Property shall be reduced by such an amount as may be agreed upon in writing by the parties hereto, provided, however, if City and Developer shall be unable to agree upon the amount of such reduction within thirty (30) days of the date of such taking, then, and in such event, the amount of such reduction shall be determined by the Arbitration Panel selected in the manner and acting with the authority provided in Section 10.5. - 101 - 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 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 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 V 10.4, Rentals payable as a percentage of Net Income Available for Distri- bution shall be the Average Annual Basic Rentals payable in the immediate 3 year period prior to the notice of taking by condemnation or the period of time since the Opening Date, whichever period is lesser. In the event the taking for temporary use continues for over 1 year, the Annual Basic Rental due for each consecutive year shall be increased by the percentage increase in the Consumer Price Index, or, if not available, such equivalent index. 102 - ------- ----- .. _ . . ... a-.... L...a- ... , ... wi./W'�tMOlN"-'._. � ...w •...r« y « ..,y..w..... w..os; .. - ... _ ... � ....n ,, rW..n,..-.....�..,,.o,�+ • 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. (iv) All actions, hearings and decisions of the Arbitration Panel shall be conducted, based upon and in accordance with the Commercial Arbitration Rules of the American Arbitration Association. In all controversies, disputes or claims with respect to the evaluation of real estate referred to Arbitration under the provisions of this Agreement, the Arbitration shall be conducted in accordance with the Real Estate Valuation Rules of the American Arbitration Association. In determining any matter - 103 - before them, the Arbitration Panel shall apply the terms of this Agreement, and shall not have the power to vary, modify or reform any terms or provi- sions of the Agreement in any respect. The Arbitration Panel shall afford a hearing to the City and to the Developer and the right to submit evidence with the privilege of cross-examination on the question at issue. All arbitration hearings shall be held at a place designated by the Arbitration Panel in Dade County, Florida. (v) A hearing shall be commenced within sixty (60) days following the selection of the last of the three arbitrators. A court reporter shall make a transcript of the hearing. The parties and the Arbitration Panel shall use their best efforts to conclude the hearing within ten days. The parties shall be entitled to such pre-trial discovery as they may agree, or as determined by the Arbitration Panel. The Arbitration Panel shall have the right to question witnesses at the hearing, but not to call witnesses. The Arbitration Panel may grant continuances for good cause or with the agreement of both parties. The Arbitration Panel may render a decision at the close of the hearing, or may request briefs on any or all issues. Any and all such briefs, including reply briefs, shall be filed with the terms and on the schedule set by the Arbitration Panel, but in any event no later than forty-five (45) days following the commencement of the hearing. The Arbitration Panel shall render a determination within sixty (60) days from the conclusion of the hearing. If no determination is rendered within such time, unless the parties agree otherwise, a new Arbitration Panel shall be selected as described above, but the new Arbitration Panel shall render a determination solely upon review of the record of the hearing without a further hearing. - 104 - (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 of the Arbitration Panel. Section 10.6. Parking Garage Taken by Condemnation. In the event that all or any portion of the Parking Garage or the Garage Parcel is taken by the power of eminent domain or shall be conveyed to avoid such proceedings and all of the Parking Garage shall no longer be available for use to the gen- eral public, such that, in the good faith opinion of Developer, it shall be V economically unfeasible to use and enjoy the Improvements in the Leased Prop- erty, then the Developer shall have the right to terminate this Lease upon giving the City written notice of the exercise of such option and this Lease shall terminate and become null and void as of the date of termination specified in such option, and Rental and any money treated as Additional Rental and Public Charges shall be prorated and paid by the Developer as of the date of such termination. In addition to other matters which Developer shall consider in determining the foregoing economic unfeasibility, Developer shall consider whether comparable, suitable parking would be available in a - 105 - close proximity to the Leased Property. If Developer shall, provided that the City shall actually demolish the Developer Improvements, exercise its right to terminate the Lease as above set forth, Developer shall pay to the City an amount equal to fifty percent (50%) of the actual cost that the City shall incur in connection with the demolition of Developer Improvements. ARTICLE XI RIGHTS OF OCCUPANCY AND ACCESS; MAID , 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 orby any person or persons claiming under the City. Section 11.2. Waste. Developer shall not permit, commit or suffer waste or impairment of the Leased Property, or the Developer Improvements thereon, or any part thereof. Section 11.3. Maintenance and Operation of Improvements. Developer shall at all times keep the Improvements constructed on the Leased Property and all furnishings located therein in good and safe condition and repair as other first class projects in similar usage are kept (reasonable wear and tear expected), and in the occupancy, maintenance and operation of such Improvements, and of the Leased Property, shall comply with all laws, ordinances, codes and regulations applicable thereto. — 106 — Section 11 A. Ownership of Improvements During Lease. Prior to the expiration or termination of this Lease, title to the Improvements shall not vest in the City by reason of its ownership of fee simple title to the Leased Property, but title to such Improvements shall remain in Developer. If this Lease shall terminate prior to the expiration of the term hereof and if, at that time, any Leasehold Mortgagee shall exercise its option to obtain a new lease for the remainder of the term of this Lease pursuant to Article VI, then title to the Improvements shall automatically pass to, vest in and belong to such Leasehold Mortgagee or any designee or nominee of such Leasehold Mortgagee permitted hereunder, until the expiration or sooner termination of the term of such new lease. The City and Developer covenant that to confirm the automatic vesting of title as provided in this paragraph, each will execute and deliver such further assurances and instruments of assignment and conveyance as may be required by the other for that purpose. During the term of this Lease, Developer shall be entitled to claim depreciation on the Improvements and all equipment, fixtures and machinery therein contained, for all taxation purposes. Section 11.5. Surrender of Leased Property. Upon the expiration of the Lease term, or upon termination of this Agreement and the Lease term hereunder in respect to the Leased Property, title to the Improvements shall vest in the City and it shall be lawful for the City to re-enter and repossess the Leased Property and the Improvements thereon without process of law, and Developer, in such event, does hereby waive any demand for possession thereof, agrees to surrender and deliver the Leased Property and the Improvements thereon, without process of law, peaceably to the City immediately upon such expiration or termination. - 107 - Section 11.6. City, and Devel er to Join in Certain Actions. Within ten (10) days after receipt of written request from Developer, the City shall, (a) Join Developer when required by law in any and all applications for permits, licenses or other authorizations required by any governmental or public authority which has jurisdiction in connection with any work as may be reasonably necessary or appropriate for the construction of the Improvements to be constructed by Developer on the Leased Property; and (b) Join Developer in any grants of, or grant such, easements or rights with respect to vehicular access electric, telephone, gas, water, sewer, steam and such other public utilities and facilities as may be reasonably necessary or appropriate for the construction, operation or use of the Leased Property or any Improvements to be erected by Developer thereon. Developer shall pay all fees and charges for all such applications and grants. ARTICLE XII MISCELLANEOUS PROVISIONS Section 12.1. No Partnership or Joint Venture. It is mutually understood and agreed that nothing contained in this Agreement is intended or shall be construed in any manner or under any circumstances whatsoever as 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 - 108 - party may cause any modification or addition to this Lease or any ancillary document relevant to this transaction to be so recorded, and the cost of any such recordation, cost of any State of Florida documentary stamps which legally must be attached to any or all of said papers, and the cost of the applicable Dade County and State transfer tax shall be paid in full by Developer. Section 12.3. Florida and Local Laws Prevail. This Agreement shall be governed by the laws of the State of Florida. This Agreement is subject to and shall be interpreted to effectuate its compliance with the Charter of the City of Miami, the City of Miami Code and the Dade County Charter and Code. Furthermore, the terms of this Agreement allow reasonable public access to the 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. - 109 - Section 12.4. Conflicts of Interest;, City- Representatives _ Not Individually Liable. No member, official, representative, or employee of the City or the City Manager shall have any personal interest, direct or indirect, in this Agreement, nor shall any such member, official, representative or employee participate in any decision relating to this Agreement which affects his or her personal interest or the interest of any corporation, partnership or association in which he or she is, directly or indirectly, interested. No member, official, representative or employee of the City or the City Manager shall be personally liable to Developer or any successor in interest in the event of any default or breach by the City or the City Manager or for any amount which may become due to Developer or successor or on any obligations under the terms of the Agreement. Section 12.5. Notice. A notice of communication under this Agreement by either the City or the City Manager, on the one hand, to _ Developer, or, on the other, by Developer to the City or the City Manager shall be sufficiently given or delivered if dispatched by registered or certified mail, postage prepaid, return receipt requested; and (a) Developer. In the case of a notice or communication to Developer, if addressed as follows: General Counsel Bayside Center Limited Partnership c/o The Rouse Company 10275 Little Patuxent Parkway Columbia, Maryland 21044 (b) Developer's Records. Developer's original duplicate books and records in auditable form as required in Section 2.5(d) shall be kept and be available to the City during normal business hours at its principal place of business in the City of Miami. - 110 - (c) City Manager. In the case of a notice or communication to the City or the City Manager, if addressed as follows: City Manager 3500 Pan American Drive Miami, Florida 33133 or if such notice is addressed in such other way in respect to any of the foregoing parties as that party may, from time to time, designate in writing, dispatched as provided in this Section 12.5. Section 12.6. Es_ pel 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 tathe party which has requested the same or to any prospective Leasehold Mortgagee, assignee or Subtenant designated by Developer a certificate stating that (i) the Lease is in full force and effect and has not been modified, supplemented or amended in any way, or, if there have been modifications, the Lease is in full force and effect as modified, identifying such modification agreement, and if the Lease is not in force and effect, the certificate shall so state; (ii) the Lease as I* modified represents the entire agreement between the parties as to this leasing, or, if it does not, the certificate shall so state; (iii) the dates on which the term of this Lease commenced and will terminate; (iv) all conditions under the Lease to be performed by the City or Developer, as the case may be, have been satisfied and, as of the date of such certificate, there are no existing defenses or offsets which the City or Developer, as the case may be, has against the enforcement of the Lease by the other party, or, if such conditions have not been satisfied or if there are any defenses or offsets, the certificate shall so state; and (v) the rental due and payable for the year in which such certificate is delivered has been paid in full, or, if it has not been paid, the certificate shall so state. The party to whom any such certificate shall be issued may rely on the matters therein set forth and thereafter the party issuing the same shall be estopped from denying the veracity or accuracy of the same. Any certificate required to be made by the City pursuant to this paragraph may be made on its behalf by the City Manager. Section 12.7. Provisions Not Merged with Deed. None of the provisions of this Agreement are intended to or shall be merged by reason of any deed (i) transferring Developer's leasehold estate in the Leased Property and Improvements or any part thereof from the Developer (or its successors or assigns) to the City (or its successors or assigns), or (ii) transferring title to the Leased Property or any part thereof from the City to Developer, its successors or assigns, and any such deed shall not be deemed to affect or impair the provisions and covenants of this Agreement. Section 12.8. Titles of Articles and Sections. Any titles of the several parts, Articles and Sections of this Agreement are inserted for convenience of reference only and shall be disregarded in construing or +� interpreting any of its provisions. Section 12.9. Counterparts. This Agreement is executed in six (6) counterparts, each of which shall be deemed an original, and such counterparts shall constitute one and the same instrument. This Agreement shall become effective only upon execution and delivery of this Agreement by the parties hereto and execution and delivery of all Exhibits referred to in Section 1.1. 1 Section 12.10. Nondisturbance and Attornment. The City covenants and agrees with Developer for the benefit of any and all Subtenants occupying any part of the Leased Property or the Improvements from time to time, that in the - 112 - event of a termination of this Lease, the possession of each such Subtenant shall not be disturbed so long as such Subtenant shall not be in default under its Sublease; provided such Subtenant shall attorn to the City. This nondisturbance agreement shall be self -operative and no further agreement between the City and any such Subtenant shall be necessary to effect the same, however, the City agrees from time to time, promptly upon request of Developer or any Subtenant, it will enter into agreements with the Developer and any such Subtenant confirming such nondisturbance agreement. Any such confirmatory agreement may be made on behalf of the City by the City Manager. In the event of a termination of this Lease, each Subtenant shall attorn to the City. Developer covenants that each Sublease to which it shall be a party shall contain a clause expressly providing that the Subtenant thereunder shall attorn to the City in the event of a termination of this Lease, but the absence of such a clause from any Sublease shall not relieve the Subtenant from the provisions of this Section 12.10. Section 12.11 Non-discrimination and Equal Opportunity. Developer will use affirmative efforts to seek and offer to minority -controlled businesses the opportunity to lease such portions of the Leased Property as may from time to time become available in accordance with the Minority Parti- cipation Program attached hereto as Exhibit H and incorporated herein by this reference. It shall be an Event of Developer Default hereunder if Developer shall not fund the minority development foundation in accordance with the provisions dealing with same set forth in Exhibit H. which payments shall commence to accrue on the Rent Commencement Date. Section 12.12. Successors and Assigns. Except to the extent limited elsewhere in this Lease, all of the covenants, conditions and obligations - 113 - -,r • .� ._ :I'�•'.- , .. _ ,.. -�'.;`?�r�'M'.;, 4:ri;ta'.-« <��'3�i:�.4"a„;:.� .. .. :.s.j?":-c=N�,: '1 0 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 , its President and its corporate seal to be hereunto affixed and duly attested by , its Assistant Secretary, and the CITY COMMISSION OF MIAMI has caused this Lease Agreement to be signed in its name by , the CITY MANAGER, and duly attested to by , the CITY CLERK, on the day and year first hereinabove written. ATTEST: BAYSIDE CENTER LIMITED PARTNERSHIP, A MARYLAND LIMITED PARTNERSHIP By: ROUSE-MIAMI, INC., A FLORIDA CORPORATION, GENERAL PARTNER By: • , President Assistant Secretary [Corporate Seal] ATTEST: THE CITY OF MIAMI, A MUNICIPAL CORPORA- TION OF THE STATE OF FLORIDA By: Ralph . Ong e, ty Clerk , City Manager APPROVED AS TO FORM AND CORRECTNESS: 1544F/452A - 114 - STATE OF FLORIDA ) COUNTY OF DADE ) I, an officer authorized to take acknowledgments, HEREBY CERTIFY that on this day of December, 1984, personally appeared before me and , known to me to be the 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 Public, State -of Flor a at Large — My Commission Expires: STATE OF FLORIDA COUNTY OF DADE ) I, an officer authorized to take acknowledgments, HEREBY CERTIFY that on this day of December, 1984, personally appeared before me and , respectively, known to me to be the City Manager and the City Clerk, respectively, of THE CITY OF MIAMI, a municipal corporation in and under the laws of the State of Florida, and known to me to be the persons who executed the foregoing instrument, and they severally acknowledged the execution thereof as the free and formal act of the said municipal corporation. WITNESS my hand and official seal in said County and State the day and year last aforesaid. 1544F/452A Notary Public, State of Florlda aE Ca—rge My Commission Expires: - 115 - EXHIBIT G 2!Y-s Event 0 Fully negotiated executed documen- tation 30 Complete refinement of conceptual design with city 90 Financing commitments obtained 120 Approval of Financing, and Preliminary Plans to City for approval including City departments review and approval 135 City Approval including City departments of Preliminary Plans 225 Complete review of Final Plans with City 240 City approval including City departments approval of Final Plans and Issuance of Building Permits 250 Corps of Engineers landfill complete, Demolition of Parking Garage complete and Possession Date 305 Rouse commences construction 730 Improvements constructed with Tenant Allowance substantially complete 790 Bayfront Park improvements substantially complete 850 Bayside Specialty Center open to public and Rent Commencement Date 1544F/452A-113 - 116 - AGREEMENT OF GUARANTY December —, 1964 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 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. 170CF/457A-4 THE ROUSE COMPANY By. President - 2 - Draft - 12/6/84 LEASE AGREEMENT between BAYSIDE CENTER LIMITED PARTNERSHIP and CITY OF MIAMI December , 1984 BAYSIDE SPECIALTY CENTER PARKING GARAGE TABLE OF CONTENTS ARTICLE I - EXHIBITS AND DEFINITIONS Section 1.1. Exhibits . . . . . . . . . . . . . . . . . . . . . Section 1.2. Defined Terms . . . . . . . . . . . . . . . . . . . ARTICLE II - GENERAL TERMS OF LEASE OF LEASED PROPERTY PAGE 3 3 3 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. . . 20 Section 2.2. Restrictive Covenants . . . . . . . . . . . . . . . 20 a. Use Prohibitions of the Leased Property. . . . 21 b. No Discrimination . . . . . . . . . . . . . . . 21 c. Permitted Uses for Leased Property . . . . . . 21 d. Use Prohibitions of the Park Site. . . . . . . 22 e. Enforceability . . . . . . . . . . . . . . . . 23 Section 2.3. Easements . . . . . . . . . . . . . . . . . . . 23 a. Existing Easements . . . . . . . . . . . . . . 23 b. Easements Granted to Developer . . . . . . . . 25 c. Limitations on Easements Rights. . . . . . . . 25 d. Duration of Easements. 27 e. Confirmatory Instruments 27 Section 2.4. Title of Leased Property . . . . . . . . . . . . . 28 Section 2.5. Rental . . . . . . . . . . . . . . . . . . . . 28 a. Rentals Payable . . . . . . . . . . . . . . . . 28 b. Continuous Operation . . . . . . . . . . . . . 29 c. Refinancing Proceeds . . . . . . . . . . . . . 30 d. Payment of Rental. . . . . . . . . . . . . . . 30 e. Developer's Records . . . . . . . . . . . . . 31 Section 2.6. Covenants for Payment of Public Charges by Developer . . . . . . . . . . . . 33 Section 2.7. Approvals and Consents . . . . . . . . . . . . . . 34 Section 2.8. Security and Police Protection . . . . . . . . . . 35 Section 2.9. Condition of Leased Property . . . . . . . . . . . 35 Section 2.10. Roadways and Utilities . . . . . . . . . . . . . . 36 Section 2.11. Parking Rates . . . . . . . . . . . . . . . . . . . 36 ARTICLE III - DESIGN AND CONSTRUCTION 36 Section 3.1. Improvements to be Designed by Developer 36 (i) TABLE OF CONTENTS PAGE ARTICLE III - DESIGN AND CONSTRUCTION (can'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 3.12. Compliance with Law . . . . . . . . . . . . . . . . 47 Section 3.13. Extension of Time Requirements . . . . . . .... . . 48 Section 3.14. Alterations and Renovations. . . . . . . . . . . . 48 Section 3.15. Art in Public Places . . . . . . . . . . . . . . . 48 ARTICLE IV - LAND USES 49 Section 4.1. Land Uses . . . . . . . . . . . . . . . . . . . . . 49 Section 4.2. Character and Operation of Improvements. . . . . . 49 ARTICLE V - ANTI -SPECULATION; ASSIGNMENT 49 Section 5.1. Definitions . . . . . . . . . . . . . . . . . . . 49 Section 5.2. Purposes of Restrictions on Transfer . . . . . . . 51 Section 5.3. Transfers . . . . . . . . . . . . . . . . . . . . . 52 Section 5.4. Notice of Transfer; Information as to Shareholders 54 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 Mortgage . . . . . . . . . . . . . . . . 57 Section 6.2. No Waiver of Developer's Obligations or City's Rights . . . . . . . . . . . . . 67 a TABLE OF CONTENTS PAGE ARTICLE VII - REMEDIES 67 Section 7.1. Events of Default - Developer. . . . . . . . . . . 67 a. Failure - Payment of Money . . . . . . . . 67 b. Failure - Performance of Other Covenants, Etc. 67 c. Bankruptcy, etc. . . 68 Section 7.2. Remedies for Developer's Default 69 Section 7.3. Events of Default - City . . . . . . . . . . . . . 69 a. Events of Default . . . . . . . . . . . . . . . 69 b. Remedies for City's Default. . . . . . . . . . 70 Section 7.4. Unavoidable Delay . . . . . . . . . . . . . . . . . 70 Section 7.5. Obligations, Rights and Remedies Emulative. . . . 71 ARTICLE VIII - PROTECTION AGAINST MECHANICS' LIENS AND OTHER CLAIMS, INDEMNIFICATION 72 Section 8.1. Mechanics' Liens and Payments of Obligations . . . 72 a. Developer to Discharge Mechanics' Liens. . 72 b. Payment of Materialmen and Suppliers 73 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 Section 9.5. Fails To Do So . . . . . . . . . . . . . . . . Insurance Does Not Waive Developer's Obligations . 78 . 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 (can't.) Section 9.8. Property Insurance Proceeds. . . . . . . . . . . . 79 a. Authorized Payment . . . . . . . . . . . . . . 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 Uninsured Major Casualty . . . . . . . . . . . . . . . o 82 Section 9.11. Casualty to Bayside Specialty Center 84 ARTICLE X - CONDEMNATION 84 Section 10.1. Entire Leased Property Taken by Condemnation 84 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 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 10 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 . . . . . . . . . . . . . . . . . . Equal Opportunity 98 98 Section 12.10. Non Discrimination and . . . . Section 12.11. Successors and Assigns . . . . . . . . . . . . . . 99 EXHIBITS A-1 - Survey A-2 - Plat A-3 - Site Plan B - Legal Description of Garage Parcel C - Legal Description of Area B D - Construction Schedule E - Form of Guaranty of The Rouse Company F - List of Permitted Encumbrances G - Survey showing Easements and Utilties H - List of Approved Concept Plans 604F/22A -v- LEASE AGREEMENT THIS LEASE AGREEMENT, made this day of December, 19840 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 Parr'. Bayfront Park is shown on the Plat attached hereto as Exhibit A-2. The City desires to lease to Developer that portion of Bayfront Park more particularly shown and designated as "Garage Parcel" on Exhibit A-1 hereto to enable Developer to construct and operate a 1200 car parking garage on the Garage Parcel (the "Parking Garage") as shown on Exhibits A-1 and A-3. The City is also the owner, in fee simple, of all that certain land, located immediately north of Bayfront Park and underneath and contiguous to the Port Boulevard Bridge in the City of Miami, County of Dade, State of Florida shown as Area B on Exhibit A-1. The City intends to grant an easement on a portion of such land to Dade County for the construction of a new Port Boulevard Bridge. The area which remains available for use as the off-street parking for the purpose of this Agreement shall be known as "Area B". The a .. ... .a���_p Aa•�a. ice.. �+h � .. t. ... • .. . .. .M1 .i�.. .T�'. rai:diEiiy_ "a'[^.Sr �i'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. 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 - In consideration of the foregoing and of the rent, covenants, and agreements hereinafter set forth, the parties do hereby covenant and agree as i follows: ARTICLE I EXHIBITS AND DEFINITIONS Section 1.1 Exhibits. Attached hereto and forming a part of this Agreement are the following Exhibits: Exhibit A-1 - Survey Exhibit A-2 - Plat of Bayfront Park Exhibit A-3 - Site Plan Exhibit�B - Legal Description of Garage Parcel Exhibit C - Legal Description of Area B Exhibit D - Construction Schedule Exhibit E. - Form of Guaranty of The Rouse Company Exhibit F - List of Permitted Encumbrances Exhibit G - Survey showing Easements and Utilities Exhibit H- - List of Approved Concept Plans Section 1.2 Defined Terms. As used herein the term: "Acceptable Operator" i 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 Operator's _ Agreement" has the meaning ascribed to it in subclause ( iv) of Section 6.1(c) • "Acceptable Purchaser" has the meaning ascribed to it in Section 5.3(d) . "Additional Design Costs" has the meaning ascribed to it in Section 3.1. "Additional Initial Costs" has the meaning ascribed to it in Section 3.1. "Additional Rental" means any and all payments required of Developer to the City by the terms of this Lease other than Rental. "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 & Co. or such other nationally recognized firm of certified public accountants as may be used from time to time by the Developer for the purpose of certifying the annual reports of its financial condition required by law. Such firm of accountants must be a member of the so-called "Big Eight" group of Accounting Firms. "Bayfront Park" has the meaning ascribed to it in the Statement of Background and Purpose. "Bayside Specialty Center" has the meaning ascribed to it in the Statement of Background and Purpose. "Capital Improvements" means (a) any addition to the Parking Garage or the construction of any additional portion of the Parking Garage or other construction in, upon or constituting part of the Garage Parcel (i) occurring subsequent to the date on which the Parking Garage is "open for business", (ii) the cost of which is reasonable and verifiable and may be capitalized and 66 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- i i I "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) . "Completion Date" means that date on which the City Manager is required to issue the Certificate of Final Completion pursuant to Section 3.9 hereof. "Construction Plans" has the meaning ascribed to it in Section 3.3. "County Easement" has the meaning ascribed to it in subclause (i) of Section 2.3(a). "Debt Service Payments" means all principal and interest, rental and other suns and amounts paid or payable for or during the applicable or pertinent period or in connection with any Leasehold Mortgage or any Sale-Subleaseback Transaction of the Developer's estate in -the Leased Property and Improvements and on borrowing to finance Capital Improvements; provided, however, that in the event of a foreclosure of any Leasehold Mortgage or the conveyance of Developer's estate in the Leased Property and Improvements to the holder of any Leasehold Mortgage (or the nominee of any such holder) by deed in lieu of foreclosure, or in the event of the termination of any lease or sublease arising out of a Sale-Subleaseback Transaction of such estate, the term "Debt Service Payments"' shall thereafter include all principal and interest, rental and other sums and amounts which would have become payable qM pursuant to or in connection with such Leasehold Mortgage or Sale-Subleaseback Transaction but for such foreclosure, deed in lieu of foreclosure or lease termination. - 6 - "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 in arm's length transactions; and interest on money borrowed by Developer from its parent, an affiliated entity or subsidiaries in -7- s connection with the development of the Parking Garage and Area 8 Surface Lot at a cost not greater than the borrowing cost incurred by such parent, affiliate or subsidiary; (6) The cost of property, liability, worker's compensation, title and other insurance; (7) The cost of obtaining permits and licenses, and all Public Charges hereinafter defined; (8) Utility relocation costs and expenses and tap -in fees or other fees for connection to utility systems and utility services during w 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 A (without limitation) the costs of construction trailers or other te mporary 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; -8- (14) The allocable portion of the central office overhead Cost of The Rouse Company or any affiliate related thereto with respect to the development of the Parking Garage and Area B Surface Lot; (15) The cost of supervising and coordinating construction of the Parking Garage and Area B Surface Lot ("Construction Management Fee"); (16) Additional Initial Costs; and (17) Other reasonable costs and expenses which are of a type usually and customarily incurred in connection with development of a Parking Garage and Area B Surface Lot. "Devel2per Equity Investment" means the sum of (i) Development Cost, r (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 (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 i i 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 2.30). "Events of the City's Default" has the meaning ascribed to it in Section 7.3(a). "Events of Develoeer'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 - i "Fair Market Value" means the price, as of the date in question, which a seller, willing but not obligated to sell, would accept for the City's reversionary interest in the Leased Property and the Improvements or the Developer's estate in the Leased Property and the Improvements (as the case may be), and which a buyer, willing but not obligated to buy, would pay therefore in an arm's length transaction. "Final Sub -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(c). "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. AMk Ir— "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. Elam the meanina ascribed to it in Section 6.1. "Fair Market Value" means the price, as of the date in question, which a seller, willing but not obligated to sell, would accept for the City's reversionary interest in the Leased Property and the Improvements or the Developer's estate in the Leased Property and the Improvements (as the case may be), and which a buyer, willing but not obligated to buy, would pay therefore in an arm's length transaction. "Final Sub -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. "Gran Agreement" has the meaning ascribed to it in Section 2.2(c) . "Improvements" shall mean all existing and future structures at the Leased Property, including, but not limited to, the Parking Garage and Area B Surface Lot. "Institutional Investor" has the meaning ascribed to it in subclause (b) of Section 6.1. "Insurance Trustee" has the meaning ascribed to it in Section 9.8(a). "Leased Property" has the meaning ascribed to it in Section 2.1. "Leasehold Mortgage" has the meaning ascribed to it in Section 6.1. "Lender" shall have the meaning ascribed to it in subclause (b) of Section 6.1. "Lender/Landlord" means a lender, and any successor, assignee, transferee or designee of such lender, to which, in connection with the - 10 - .: r�L'..aY.l •r'4cr....i6'.. � - ?�)•�t��Jif•���ic.Io ..2 c+ - '°�,'.... I 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 budgets for operation of the Leased Property; (iii) keeping books of account, auditing such books at least annually, preparation of statements of account to be submitted to the City showing the performance and condition of the Leased Property, and supervision of the payment of all obligations related to the operation of the Leased Property; (iv) development of programs for the promo- tion of the Leased Property (including advertising and publicity programs); (v) management of the Leased Property, including all normal legal fees, accounting, auditing, transportation and travel salaries, home office expenses of the Developer, The Rouse Company and affiliates, and the salaries, benefits and expenses of all personnel related to the supervision and administration of management services, including all supplies and materials 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, plans for minor alteration of the Leased Property, proceedings relating to condemnation or eminent domain, and legal and other costs of extraordinary legal proceedings concerning the Leased Property, all whether performed by on -site personnel or independent third parties. "Negative Cash Flow" means the sum of Operating Losses for any given period plus Debt Service Payments for the same period. "Net Income Available for Distribution" means the Operating Income for the applicable or pertinent period, minus the sum of (1) Operating Expenses for the same period, (2) Debt Service Payments for the same period, 01 and (3) an amount equal to ten percent (10%) of Developer's Equity Investment for the same period. Net Income Available for Distribution'shall be determined on an accrual basis in accordance with generally accepted accounting principles. "Opening Date" means the earlier of (1) the date upon which the Parking Garage is open for business with the general public, or (2) the thirtieth day following issuance of the Certificate of Final Completion. "Operating Expenses" means (without duplication) (1) all reasonable Sk and prudent expenditures for the Improvements according to the then current standards of the industry accounted for by the accrual method in accordance with generally accepted accounting principles made by the Developer or which the Developer is obligated to make in the operation, ownership or management of the Leased Property and the Improvements or any part of either, including (without limitation) payroll and payroll expenses, management fees, business taxes and Public Charges, supplies, license and permit fees, repair and maintenance expenses, costs and expenses of cleaning, maintaining and repairing the common area and Leased Property, utility charges, insurance premiums, auditing and professional fees and expenses, publicity costs and - 12 - expenses, and (2) annual Rental. In no event shall depreciation constitute a portion of Operating Expenses. "Operating 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 sk Property, however, any sales taxes imposed by law directly paid by Developer or the City to a taxing authority, and any discounts and allowances as provided by procedures accepted and approved by the City and Developer, shall be ex- cluded therefrom. Moneys payable shall also include, but shall not be limited to, any and all cashier shortages, overages, and undercharges. Dishonored checks and uncollectible credit card charges shall not be included in Gross Revenues, provided that such check and credit card transactions were processed utilizing sound business procedures. If Developer shall receive insurance or condemnation proceeds or awards, the amount thereof which represents reim- bursement to Developer for items accounted for as Operating Expenses shall be deemed to be Operating Income. "Operating Losses" means the amount by which Operating Income for the applicable period is less than Operating Expenses plus Debt Service for the same period. "Original Term" has the meaning ascribed to it in clause (b) of Section 2.1. "Owner" has the meaning ascribed to it in Section 5.1. "Owner whose shares are publicly traded" has the meaning ascribed to it in Section 5.1. - 13 - 1 i "Pate" means the area comprising the Bayfront Park but excluding i 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- /"1 oper's estate in the Leased Property and Improvements if previously conveyed in a Sale -Leaseback Transaction, and (iii) all costs and expenses associated with the negotiation and closing or consummation of such Refinancing. "Renewal Term" has the meaning ascribed to it in clause (c) of Section 2.1. "Rent Commencement Date" means the date described as "Rent Commencement Date" on Exhibit 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 004 Statement of Background and Purpose. "Retail Parcel" means that certain land demised by the City to Developer under the Retail Ground Lease. "Sale-Subleaseback Transaction" means Developer's sale to a Lender/ Landord of all or a substantial portion of Developer's interest in this Lease, and the subsequent execution of a sublease ("Financing Sublease") between Lender/Landord and Developer. "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 takesand hires from the City, the Garage Parcel shown on Exhibit A-1 and more particularly described in the legal description attached hereto as Exhibit B and Area B shown on Exhibit A-1 and more particularly described in the legal description attached hereto as Exhibit C. together with the buildings, structures, improvements and equipment thereon and together with and subject to the restrictions, conditions, covenants and easements j hereinafter mentioned, reserved or granted (the "Leased Property"). The City and Developer recognize that the boundaries of the Leased Property may require minor adjustments to accommodate the Improvements contemplated pursuant to the Construction Plans. Should the parties agree a modification is required, Exhibits 8 and C to this Lease shall be amended accordingly. (b) Original Term. To have and to hold the Leased Property for a term of forty-five (45) years, commencing on the first day of the month next following the Possession Date. Within thirty (30) days after the Possession i Date, the City Manager and Developer, upon request of either party, shall execute one or more written memoranda in such form as will enable them to be recorded among the Land Records of Dade County setting forth the beginning and termination dates of the Original Term, determined in accordance with this Agreement. (c) Renewal Term. Developer is granted an option to renew this Lease from time to time upon the same terms and conditions, except as otherwise expressly provided, for up to two (2) additional terms (each called a "Renewal Term") of fifteen (15) years each, commencing at"the expiration of the Original - 16 - 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 - .. ��T � '_, ....:T ._' �. � • Tom' 6,�s "':; (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- 04 exempt revenue bonds or notes for construction and long term financing of e"S 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 e 1 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- I (vii) The Developer has obtained all governmental approvals and permits necessary for construction of the improvements to be constructed pursuant to the Retail Area Ground Lease; (viii) The Developer shall have obtained a firm commitment or commitments acceptable to Developer and the City for the construction and permanent financing of the improvements to be constructed pursuant to the Retail Area Ground Lease; and (ix) The City shall have provided Developer with evidence satisfactory to Developer that the development of the Parking Garage, the Area B Surface Lot and Bayside Specialty Center will not violate Section 380.06, Florida Statutes or Chapter 33A of the Dade County Code. Developer and the City shall use good faith efforts to satisfy all of the aforesaid conditions precedent. It is recognized by the parties hereto that it is not the intention of either party to encumber the Leased Property with this Lease for an indefinite period of time during the period of satisfaction of the aforesaid conditions precedent and that therefore, either party shall have the right to terminate this Lease if all of the aforesaid 04 conditions precedent are not satisfied on or before January 1, 1988. Developer and the City shall use good faith efforts to satisfy all of the aforesaid conditions precedent. It is agreed that notwithstanding the City's agreement to use good faith efforts to satisfy the aforesaid conditions precedent, it is agreed that the City shall not be required to expend any funds in order to comply with any requirements of the statute or code set forth in (ix) above except as specifically set forth in Section 3.11 hereof. No waiver of any of the foregoing conditions precedent shall be implied by any conduct of Developer, including (without limitation) any election by Developer to proceed with any development activity prior to the - 19 - 0 satisfaction of all of such conditions precedent, it being agreed that any waiver by Developer of any such condition precedent shall be effected only by Developer's express written statement to that effect delivered to the City or the City Manager. (f) Developer Obligations Prior. to Possession. Notwithstanding anything herein to the contrary, until possession of the Leased Property shall have been delivered to Developer pursuant to the provisions of clause (e) of this Section 2.19 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 /'1, designed to bind the Developer and the City and their respective successors and assigns and bind upon and run with the Leased Property and the Park Site (as the case may be) throughout the entire term of this Lease, including any Renewal Term and any new lease executed pursuant to the provisions of Sections 6.1 and 6.2. The parties recognize, however, that the development and opera- tion of the Leased Property and the Improvements in a manner which is in the best interests of both parties may from time to time require the confirmation, clarification, amplification, or elaboration of this Agreement in order to deal adequately with circumstances which may not now be foreseen or anticipated -20- 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 04 (public or private), or for any purpose or in any way in violation of the 00*S 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 e•", i effect from time to time, prohibiting discrimination or segregation by reason I of race, color, religion, sex, or national origin in the sale, lease or occupancy of the Leased Property. (c) Permitted Uses for Leased Property. Except for the limited use by Miami Motorsports, Inc. which may be permitted by the Developer and City pursuant to the Grand Prix Agreement (as defined in the Retail Area Ground Lease), the only uses permitted on the Leased Property are parking open to the general public and office (provided that such office uses shall be limited to management offices). - 21 - (d) Use. Prohibitions of the Park Site. The parties acknowledge and agree that the Leased Property is adjacent to the Park Site and that, conse- quently, the manner in which the Park Site is or may be used from time to time will have a direct and material affect on the use and value of the Leased Property and the Improvements. In consideration of the foregoing and or the rentals reserved by it under this Lease, the City, as the owner of the Park Site, for itself, its successors and assigns, covenants and agrees with Developer, its successors and assigns that: (i) Except as may be otherwise permitted pursuant to the Management Agreement dated June 4, 1981 between the City and New World Marinas, Inc., with respect to the Miamarina, the City will not permit any use of the Miamarina, the baywalk or the docks on the Park Site which would detract from the use of the Leased Property; (ii) The City will not, without first obtaining the written consent of the Developer, (1) construct any fence or barrier between the Park Site and the Leased Property, (2) make or permit substantial alteration in the Park Site or permit any structure on the Park Site which 04 will substantially adversely affect the access to and from the Leased Property, or (3) be inconsistent with the use of the Leased Property; (iii) The City will not sell the Park Site except to a party who shall agree to expressly assume the City's obligations under this Agreement and who shall have the authority to assume and perform the same as provided for under Section 5.6; (iv) Subject to certain rights of the City with respect to Area A-4 and A-5 set forth in §2.1(a) of the Retail Lease, and except for any temporary use permitted pursuant to the Grand Prix Agreement, the Park Site will, during the term of this Lease and any renewals hereof, be open to the general public and shall be devoted only to public park uses; and -22- A": _ . ..A <.n .. .. .. .. •. rC�Y•e•.sM�v. • tdY •�+5'e."6 .Xt�L�.. ��- ':.24� • �•t .y y.i { (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 04 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 eN assigns, only for such period as each respectively shall have title to the Leased Property, the Park Site or any part of either. Section 2.3 Easements. The following easements presently exist or /Rt are hereby granted: (a) Existing Easements. The following easements presently exist: (i) the easement for a 72 inch underground force main, more particularly shown and designated as the "County Easement" on Exhibit A-1 hereto; (ii) the 20 foot storm sewer easement more particularly shown and designated as the "City Storm Sewer Easement" on Exhibit A-1 hereto; (iii) such other easements as are described on Exhibit F. (b) Easements Granted to Developer. The City grants unto Developer, its successors and assigns the following: - 23 - _». Ob (i) the non-exclusive right and easement (the "Developer Utility Easement") to install, maintain, repair and replace utility facilities such as water, gas, electric, and telephone lines and storm and sanitary sewers underground within portions of the Park Site, and any other property owned by the City which is not a dedicated street, in the location shown therefore on the approved Construction Plans or in such other locations as may be approved by the City Manager from time to time; (ii) the non-exclusive right and easement (the "Developer Vehicular Access Easement") for the unobstructed access for users of the Improvements, and for service and emergency vehicles (A) to and from the Leased Property to Biscayne Boulevard, (B) over and across Port Boulevard to Biscayne Boulevard and over and (C) across the Park Site and the Retail 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 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 - 24 - W 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 8 Surface Lot; 101*1 It is the intent of this Agreement that all Improvements be confined to the limits of the Leased Property. (c) Limitations on Easement Rights. The rights and easements granted or reserved in paragraphs (a) and (b) of this Section 2.3 shall be limited as follows: (1) with respect to the County Easement and the Developer Utility Easement, except to the extent shown on the approved Construction 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 a . surface of the easement area; - 25 - (2) With respect to the portion of the City Storm Sewer Easement area which may lie directly beneath the Parking Garage, the City and Developer agree, within a reasonable time period from the date hereof, to enter into an easement agreement governing the use, maintenance, repair and replacement of the utilities within such easement area in order to provide Developer with sufficient assurances of the use and enjoyment of that portion of the Leased Property affected thereby. (3) the party having the benefit of any such easements (A) shall carry on any construction, maintenance and repair activity with diligence and dispatch and shall use its diligent efforts to complete the same in the shortest time possible under the circumstances, and (8) shall ' not carry on any construction, maintenance or repair activity in the easement area in such manner as to unreasonably interfere with the use and enjoyment of the servient tenement, and, except in the case of the County Easement, in carrying on such activities, will do so in such a manner as not to unreasonably interfere with business or businesses then being conducted in the Improvements or on the Leased Property by Developer. City shall use its diligent efforts to obtain approval of Dade County to the foregoing provision with respect to the County Easement; (4) except in the event of emergency, the party having the benefit of such easement shall not carry on any construction, replacement, maintenance or repair activity at any time in such easement area unless such party shall have given at least sixty (60) days advance notice to the other party of its intention to do so; provided, however, that in the event of an emergency affecting the County Easement, the City will use diligent efforts to obtain the consent of the Dade County Water and Sewer Authority to such notice requirements; -26- 0 Mph (5) promptly upon the completion of any such construction, repair or maintenance activity, the party having the benefit of such easement shall, at its expense, restore the surface of the easement area as nearly as possible to its former condition and appearance; (6) Developer and City agree to enter into an easement agreement governing the use, maintenance, repair and replacement of the City Storm Sewer Easement, and any other utility easement area which may be located under the Improvements within a reasonable time from the date of this Lease in order to provide the Developer with sufficient assurances i with respect to the use and enjoyment of that portion of the Improvements i affected thereby; and (7) with respect to the Developer Vehicular Access Easement, the City may from time to time, erect signs, temporary barriers or other reasonable traffic controls designed to limit the use of the easement areas to service and emergency vehicles. Annexed hereto as Exhibit 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 - 27 - •.s�+.a�_. .�,.: it's..., y�' �.� .. 7���" � their location as such requesting party shall deem to be necessary or desirable. The City Manager is hereby authorized and empowered on behalf of the City to execute and deliver, from time to time, any such confirmatory documents or instruments. Section 2.4 Title of Leased Property. The City represents, covenants and warrants that it has good and merchantible fee simple title to the Leased Property and all of the improvements thereon, which title is free and clear from all covenants, easements, liens, clouds of title or other restrictions except for those listed in Exhibit F. Section 2.5 Rental. (a) Rentals Payable. During each Rental Year during the Original Term and each Renewal Term hereof, Developer covenants and agrees to pay the City annually as rental ("Rental") for the Leased Property, the following: (1) the annual sum of Ten Thousand Dollars ($10,000) ("Annual Basic Rental"), (2) to the extent there is Net Income Available for Distri- bution, the annual sum of Eighty Thousand Dollars ($80,000) ("Annual.Additional Rental"), and (3) Fifty percent (50%) of the remaining Net Income Available for Distribution, if any, after payment of the Annual Basic Rental, Annual Additional Rental, and after Developer has been reimbursed up to Ninety Thousand Dollars ($90,000) for Negative Cash Flow previously paid by Developer ("Annual Percentage Rental"). (b) Continuous Operation. Developer covenants and agrees, subject to the Grand Prix Agreement, to cause the Parking Garage and Area B Surface Lot to be continuously operated consistent with prudent business practices and the standards of operation set forth in Section 4.2 hereof (considering twelve - 28 - -- (12) month use) in order to achieve a reasonable level of profitability. In connection therewith, Developer covenants and agrees that from and after the Opening Date, Developer shall keep the Parking Garage and Area B Surface Lot open for business with the general public at least three -hundred sixty (360) days a year. Developer agrees that, at all times during the Original Term or any Renewal Term, Developer shall not operate the Parking Garage or the Area 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-proft basis and Developer r` agrees to initially retain such Acceptable Operator; e,16 however, if9such Acceptable Operator is not available or if such Aperator is in default of its management agreement with Developer, Developer may retain another Acceptable Operator. The parties acknowledge that the Developer is not as of the date of this Agreement qualified as an Acceptable Operator, but nothing in the provisions of this Lease shall prohibit the Developer from qualifying as an Acceptable Operator. If this Lease should be transferred to an Acceptable Operator or an Acceptable Purchaser pursuant to Article VI hereof, the provisions of this Section 2.5(b) shall apply in equal force and affect as such parties after such transfer. (c) Refinancing Proceeds. In the event that Developer proposes to engage in any Refinancing with respect to the Leased Property or any portion thereof, Developer shall give notice thereof to the City Manager not later than forty-five (45) days prior to the consummation of the transaction or trans- actions by which such Refinancing is accomplished. Such notice shall show, in reasonable detail, Developer's base estimates of the amount of the Refinancing Proceeds and the expected affect of such Refinancing upon Rental and Net Income - 29 - •'z r--�.sJ�� _ - ..:y.e-.Tz-a`.<-+:•fu�.Pq-..ems-kz,i�"!;.. "^i -Cf '%:.w,,,_fic��;�°�=+�'. R'.G . ♦ .. _ .. � ... _.;' ., a -- -i :'S�' _: - .. — .._. .-_., a... .. _'ti`K, J. �:_'t������• Available for Distribution for three (3) full Rental Years next following• consummation of such Refinancing. Within thirty (30) days after such notice is given, the City shall elect, by giving notice of such election to the Developer, either: (i) to participate in such Refinancing, in which case Developer shall pay or cause to be paid to the City, upon consummation of such Refinancing, an amount equal to fifty percent (50%) of the Refinancing Proceeds and thereafter Rental payments shall be determined by adjusting Debt Service Payments and Developer's Equity Investment to reflect such Refinancing; or (ii) not to participate in such Refinancing, in which case (1) no portion of such Refinancing Proceeds shall be payable to the City and Rental with respect to such portion of the Leased Property that is refi- nanced shall thereafter be determined in the same manner as prior to such Refinancing (that is to say that in the determination of Rental with respect to such portion of the Leased Property that is refinanced, Debt Service Payments and Developer's Equity Investment with respect thereto shall not be adjusted so as to reflect such Refinancing, but shall continue on the same basis as prior to such Refinancing), and (2) with respect to any subsequent Refinancing, Refinancing Proceeds shall be calculated as though such prior Refinancing shall not have occurred. If the City shall fail to make such election within said thirty (30) day period, the City shall be deemed to have elected to not participate in such Refinancing. (d) Payment of Rental. Rental shall commence to accrue on the Rent Commencement Date. Rental shall be payable in equal monthly installments in advance on the first day of each full calendar month following the Rent Com- mencement Date during the term of this Lease, the first such payment to include also any prorated Rental for the period from the Rent Commencement Date to the - 30- , Available for Distribution for three (3) full Rental Years next following• consummation of such Refinancing. Within thirty (30) days after such notice Aj is given, the City shall elect, giving notice of such election to the Y by 9 9 Developer, either: Viz: to participate in such Refinancing, in which case Developer shall pay or cause to be paid to the City, upon consummation of such tw 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 ref i- k 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 v j 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. i (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 - t ' - 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 1 12.5, auditable original or duplicate books and records for the Parking Garage and Area B Surface Lot which shall disclose all information required to determine Development Costs, Annual Basic Rental, Annual Additional Rental, Annual Percentage Rental, Oper- ating Income and Operating Expenses and other information necessary to comply with the terms of this Agreement. After five (5) days advance notice to Developer, the City through its City Manager or his designee, shall have the right during business hours to inspect such books and records and to make any examination or audit thereof which the City may - 31 - _, y 0 desire. If such audit shall disclose a liability for Rental in excess of the Rental theretofore paid by Developer for the period in question, Developer shall promptly pay such additional Rental and if such audit shall disclose an overpayment of the Rental theretofore paid, the City shall promptly return the excess to the Developer. Developer further covenants and agrees to deliver to the City com- mencing as of the Rent Commencement Date within forty-five (45) days after the close of each calendar quarter and after the termination of the Lease, a statement showing, in reasonable detail, the computation of the Annual Basic Rental, Annual Additional Rental, Annual Percentage Rental, Operating Income, Operating Expenses and Net Income Available for Distribution for the preceding calendar quarter. The quarterly statement shall be signed and verified by an appropriate, authorized officer or General Partner of Developer or certified by the appropriate authorized officer of the Acceptable Operator stating specifically that such officer has examined the report, that such officer's examination included such tests of the books and records as such officer considered necessary under the circumstances, and that such report presents _1 fairly the Rental due with respect to the preceding calendar quarter. If " 1 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 - in the event the City 's audit was in lieu of a quarterly report by Developer or if the City audits the quarterly report at its own initiative and demon- strates a discrepancy of more than three percent (3%). 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 performance of those obligations on behalf of Developer pursuant to the parking garage management agreement, and (ii) if the City of Miami Department of Off - Street Parking is in default of its obligations under the parking garage management agreement and such failure results in a default under this Lease, such default shall not be deemed to be an Event of Developer's Default. Section 2.6 Covenants for Payment of Public Charges by Developer. Developer, in addition to the Rental, covenants and agrees to pay and --� discharge, before any fine, penalty, interest or cost may be added, all real and personal property taxes, all ad valorem real property taxes, all taxes on 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 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. era. Developer, upon written request, shall furnish or cause to be furnished, to the City Manager, official receipts of the appropriate taxing authority, or other proof satisfactory to the City Manager evidencing the payment of any Public Charges, which were delinquent or payable with penalty thirty (30) days or more prior to the date of such request. Section 2.7 Approvals and Consents. Wherever in this Lease the kU approval or consent of any party is required, it is understood and agreed that such approval or consent will not be unreasonably withheld or delayed. - 34 - ■ Section 2.8 Security and Police_ Protection. Developer shall have the responsibility for providing all security and protection for the Improvements. Developer and City may enter into an agreement requiring the City to provide such security and protection with respect to same. If the City and Developer are unable to enter into such agreement, the Developer shall be responsible for providing security and protection throughout the Improvements. The City shall provide the same security and police protection for the Park Site as is afforded all other City open spaces with appropriate augmentation in the exclusive judgment of the City Manager during periods of high pedestrian activity including (without limitation) during special public events. Section 2.9 Condition of Leased Property. On the Possession Date the City shall deliver to the Developer possession of the Leased Property, free of any and all tenancies or other rights or claims of rights to its use and occupancy. Prior to the Possession Date, the Leased Property shall be maintained by the City and delivered to Developer in good serviceable condition, ordinary wear and tear excepted. The City agrees not to adversely or materially alter the Leased Property prior to the Possession Date without Developer's prior written approval. The obligations of Developer under this Lease (including, without limitation, the obligations to pay Rental hereunder) are subject to the delivery in good and serviceable condition (ordinary wear and tear excepted) to the Developer on the Possession Date of the Leased Property and improvements located thereon as of the date of this Lease. -35- °C"� 0�" if_.}.' _ i:4 'tn;.n��.' ..-�` l'iS: �r.': �. Y:`+_ + «x: .. A�•.�'. r_'`•li'�-• p�h i+i. ,�4,� 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 Parkinc7 Rates. Parking Rates shall be established by Developer from time to time and shall be subject to the City Manager's prior 0 written appoval. ARTICLE III DESIGN AND CONSTRUCTION Section 3.1 Improvements to be Designed by Developer. The Parking Garage and Area B Surface Lot and all improvements ancillary thereto shall be designed by Developer (hereinafter referred to as the "Design"), subject to the review and written approval of the City as hereinafter set forth. The City acknowledges that prior to the execution of this Agreement, Developer has - 36 - 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 8 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 - permits or other formal governmental approvals to Developer for a particular phase until the City has approved a site plan depicting all phases of the Parking Garage and Area B Surface Lot and have approved the Preliminary Plan } for the particular phase for which a permit or other formal governmental approval is requested. s The parties agree that the Design shall be completed by Developer in 1 such a manner as to permit the expansion of the Parking Garage by the addition t thereto of a fourth and fifth level (hereinafter called the "Expansion Levels"), which Expansion Levels shall provide for approximately 750 additional I' parking spaces at the Parking Garage. The additional cost of the Design (hereinafter called the "Additional Design Costs") as a result of the addi- tional Design work to be incurred with respect to the inclusion therein of the possible Expansion Levels shall in no event exceed $30,000 and shall be paid by the City after approval of the Final Structural Plans. At the time that ! Developer shall enter into a guaranteed maximum price construction contract, Developer shall cause that portion of the Preliminary Plans that shall reflect additional work to be performed in order to construct the Parking Garage in a manner sufficient to permit the construction of the Expansion Levels (hereinafter called the "Additional Initial Costs") to be priced separately and shall notify the City of the amount of the price for the Additional Initial Costs. Developer shall use diligent and reasonable efforts to cause its construction contractor to quote a reasonable and verifiable price with respect to the Additional Initial Costs. The City shall, within ten (10) days after it shall have received such notice, advise the Developer in writing if it desires to have the Parking Garage constructed in a manner to permit the future construction of the Expansion Levels thereon. If the City shall notify Developer that it desires the Parking Garage to be constructed in such a - 38 - :;gib : �,f'±a�� .Yr"'�� - ;.+h•+-w �1, '1, manner, the City and Developer shall thereupon promptly negotiate and enter into an agreement with respect to the manner and method of the payment of the Additional Initial Costs by the City as construction of the Parking Garage progresses. At any time after the completion of the Parking Garage, the City may notify Developer in writing that it is of the opinion that as a result of the occupancy level and use of the Parking Garage, it would be in the financial interests of both Developer and the City to construct the Expansion Levels. The City shall obtain an independent feasibility study to analyse, among other things, the marketability of the expansion and the financial impact of the expansion on Operating Income and Net Income Available for Distribution. The City shall submit the feasibility study to the Developer for its review. If the feasibility study should demonstrate that the expansion is economically feasible and marketable, the City and Developer agree to in good faith nego- tiate the necessary agreements related to the expansion, including (without limitation) repayment of Additional Initial Costs, reciprocal easement and use requirements, form of management, ownership, impact upon Rental, and design and construction responsibilities. The cost of the feasibility study shall be borne by the City unless the Expansion Levels are actually constructed, in which case the cost shall be included as part of the development costs of the Expansion Levels to be paid on accordance wih any agreements entered into between the City and Developer. Section 3.2 Preliminary Plan Submission Oates. Developer shall submit the Preliminary Plans to the City for written approval on or before the time set forth for same on Exhibit D hereto. Upon receipt of each set of Preliminary Plans representing a certain stage of construction, the City shall review same and shall promptly (but in any event within fifteen (15) days - 39 - after such receipt) give Developer written notice of its approval or dis- approval setting forth in detail its reasons for any disapproval. The City's right to disapprove the Preliminary Plans submitted shall be limited to {.µ.•_s' matters depicted in the Preliminary Plans which do not conform substantially •...is to the Concept Plans or previously approved Preliminary Plans for other stages of the Parking Garage and Area B Surface Lot or new elements not presented in the Concept Plans or matters which are violations of applicable governmental statutes, ordinances, codes, plans, laws or regulations. If no written response is delivered to Developer within fifteen (15) days after submission of such Preliminary Plans, or any resubmission thereof as hereinafter provided, they shall be deemed approved, except that no violation of applicable governmental statutes, ordinances, codes, plans, laws, regulations, shall be deemed waived thereby. In the event of a disapproval, Developer shall, within fifteen (15) days of the date the Developer receives the notice of such disapproval resubmit such Preliminary Plans to the City, altered to satisfy the grounds for disapproval. Any resubmission shall be .=.5< subject to review and approval by the City, in accordance with the procedure ''- hereinabove provided for an original submission until same shall be approved by the City, provided that in any event Developer shall submit all Preliminary Plans for construction of the Parking Garage and Area B Surface Lot which ' satisfy all of the grounds for disapproval of which the City has given notice not later than six months from the date of this Agreement. The City and Developer shall in good faith attempt to resolve any disputes concerning the Preliminary Plans. Section 3.3 Construction Plans. For the purpose of this Agreement, "Construction Plans" shall consist of final working drawings and specifications including (without limitation) the following information: (a) definitive -40- architectural drawings; (b) definitive foundation and structural drawings (the "Final Substructure Plans"); (c) definitive electrical and mechanical drawings including (without limitation) plans for all lighting facilities affecting the exterior and interior appearance of the Parking Garage; (d) final specifica- tions; (e) landscaping; (f) graphics; and (g) plan for conduit and raceways necessary for revenue control systems and television control system. Not later than one hundred twenty (120) days after approval of Preliminary Plans for a particular stage of construction, Developer shall submit to the City two sets of Construction Plans for the same stage provided, however, that Developer shall not be required to submit the portions of the Construction Plans con- sisting of exterior lighting, landscaping and graphics until the date that Developer is required to submit the lighting, landscaping and graphics portion of the construction plans for the Bayside Specialty Center to the City pursuant to the Retail Area Ground Lease. Upon receipt thereof, the City shall review same and shall promptly (but in any event within fifteen (15) days after such receipt), give Developer notice of its written approval or disapproval, setting forth in detail its reasons for any disapproval. The City Is right to dis- approve the Construction Plans submitted shall be limited to matters depicted in the Construction Plans which do not conform substantially to tt: approved Preliminary Plans or previously approved Construction Plans for other stages or are new elements not presented in the approved Preliminary Plans or are violations of governmental statutes, ordinances, codes, plans or regulations. If no response from the City is delivered to Developer within fifteen (15) days after the submission of such Construction Plans, or any resubmission thereof as hereinafter provided, they shall be deemed approved, except that no violations of applicable laws, statutes, ordinances, codes, or regulations shall be deemed waived thereby. In the event of a disapproval, Developer - 41 - "' ;:1; - - _�"'s yr. _ .�i-�•� ,;, z:ai4'�v�i,' shall, within fifteen (15) days after the date Developer received the notice of such disapproval, resubmit the Construction Plans for that stage to the City, altered to satisfy the grounds of disapproval. Any resubmission shall be subject to review and approval by the City, in accordance with the procedure hereinabove provided for an original submission, until the same shall be approved by the City, provided, that in any event Developer shall submit all Construction Plans for the construction of the Parking Garage and Area B Surface Lot (which satisfy all of the grounds for disapproval of which the City has given written notice) not later than four (4) months after approval of all of the Preliminary Plans. The City and the Developer shall in good faith attempt to resolve any disputes regarding the Construction Plans. No approval by the City of any Construction Plans or Preliminary Plans pursuant to this Article shall relieve Developer of any obligation it may have at law to file such Construction Plans with any department of the City or any other governmental authority having jurisdiction over the issues or to obtain any building or other permit or approval required by law. Developer acknowledges that any approval given by the City pursuant to this Article III shall not constitute an opinion or agreement by the City that the plans are structurally sufficient or in compliance with any laws, codes or other applicable regulations, and no such approval shall impose any liability on or waive any rights of the City. Concept Plans, Preliminary Plans, Construction Plans and all work by Developer with respect to the Parking Garage and Area B Surface Lot shall be in conformity with this Agreement, the Miami Charter and Code, the South Florida Building Code and all other applicable state, county and local laws and regulations. -42- Section 3.4 Facilities to be Constructed. Developer agrees to construct the Parking Garage and Area 9 Surface Lot on the Leased Property, at its sole cost and expense, containing the facilities more particularly described in the Construction Plans which shall conform to the covenants contained in Section 2.2 and which are referred to throughout this Lease as "Improvements". :W Section 3.5 Maintenance of Park Site and Leased PrThe `} City, without cost or expense to Developer or public assessments against the t IFS Leased Property or the Improvements, at all times during the term of this Lease, (including any Renewal Term and any new lease executed pursuant to the } .'.. { provisions of Sections 6.1 and 6.2) shall maintain and keep or cause to be �,.,•.a 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 K to the Retail Area Ground Lease, all of the property and improvements at the Park Site. The Developer, without cost or expense to the City, at all times during the term of this Lease, (including any Renewal Term and any new lease entered into pursuant to the provisions of 6.1 Section 6.2) shall maintain and .=r keep or cause to be maintained and kept in good order, repair and appearance ' all of the property and improvements located in that portion of the Leased Property shown and designated as Developer Maintenance Area on Exhibit K to j the Retail Area Ground Lease. Section 3.6 Access. Prior to delivery of possession of the Leased Property or any part thereof to Developer, the City shall permit Developer access thereto whenever and to the extent necessary to carry out the provisions of this Agreement. The City shall also permit, including (without limitation) the placement of construction trailers and staging area on or adjacent to the - 43 - ;yes-'-...i•.K'ya, ,t,,3• ,it..a_..Ra:: iC',til^^f...',:',,�•,lii,-',1,rC;; .•;�.s,kyi,�. Leased Property at no cost to the Developer, and the mooring of construction barges or other vessels at Miamarina or the adjacent docks at locations reasonably acceptable to the City Manager and Developer, at reasonable fees or charges to the Developer. The provisions -of this paragraph shall not take effect until Developer, at its sole cost and expense, shall have secured or caused to be secured comprehensive general public liability insurance as required in this Agreement. Section 3.7 Construction Period. Developer shall commence con- struction of the Parking Garage and Area B Surface Lot not later than fifty-five (55) days after the Possession Date or as soon thereafter as weather permits (but not earlier than the approval of the Construction Plans) and shall complete the same substantially in accordance with the Construction Plans pursuant to the Development Schedule attached hereto as Exhibit D. At the request of either party, the parties will execute and deliver from time to time such certificates, documents or instruments as may be appropriate to confirm the dates of commencement or completion of construction as above provided, which certificates, documents or instruments may be recorded by the f party requesting the same at its expense. Section 3.8 Progress of Construction. Subsequent to the delivery of possession of the Leased Property to Developer, and until construction of the Improvements have been completed, Developer shall keep the City Manager apprised of the progress of Developer with respect to such development and construction. During such period the work of Developer shall be available for inspection by a full-time, on -site representative of the City Manager. The Developer shall provide suitable work space and utilities for the -44- representative at Developer's cost. Developer, by executing this Agreement$ represents it has visited the site, is familiar with local conditions under which the construction and operation is to be performed, will perform all test borings and subsurface engineering generally required at the site under sound and prudent engineering practices, and will correlate the results of its test borings and subsurface engineering and other available studies and its obser- vations with the requirements of the construction and operation of the Improvements. The Developer shall restore the site to its original condition after all testing, and shall provide the City with a copy of all results. The City makes no warranty as to subsoil conditions. Developer shall not be entitled to any adjustment of Rental or of any applicable time requirements in the event of any abnormal subsoil conditions unless the subsurface conditions are so unusual they could not have been reasonably anticipated. Section 3.9 Certificate of Final Completion. Promptly after completion of the Parking Garage and Area B Surface Lot in accordance with the provisions of this Agreement, the City Manager will furnish Developer with an appropriate instrument so certifying (the "Certificate of Final Completion'"). The Certificate of Final Completion shall be in such form as will enable it to 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 Managers office shall become vacant or if authority of the City Manager shall change such that the City Manager shall not have the full authority to perform the obligations imposed on that office envisioned under this Lease, then the City shall, upon request of Developer, designate such other officer or department as may be appropriate to perform the City Manager's obligation. Developer shall secure and pay for any and all permits and approvals necessary for proper construction and completion of the Developer Improvements with the exception of the permits and approvals required pursuant to Section 380.06, Florida Statutes and/or Chapter 33A of the Dade County Code, if any. 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. If the City pursues a Binding Letter of Determination pursuant to Section 380.06(4)(a), Florida Statutes and/or a Developers Agreement pursuant - 46 - - Section 3.10 Correction to. Utilities. Developer will install or cause to be installed all necessary connections between the Parking Garage and Area B Surface Lot and the water, sanitary and storm sewer mains and mechanical and electrical cables and conduits whether or not owned by the City and/or the Dade Water and Sewer Authority Department. All costs and expenses in connection with same shall be borne by Developer. Section 3.11 Permits and Approvals. Developer shall secure and pay for any and all permits and approvals necessary for proper construction and completion of the Parking Garage and Area B Surface Lot. All costs and ex- penses in connection with same shall be borne by Developer. If the City Manager's office shall become vacant or if authority of the City Manager shall change such that the City Manager shall not have the full authority to perform the obligations imposed on that office envisioned under this Lease, then the City shall, upon request of Developer, designate such other officer or department as may be appropriate to perform the City Manager's obligation. Developer shall secure and pay for any and all permits and approvals necessary for proper construction and completion of the Developer Improvements with the exception of the permits and approvals required pursuant to Section 380.06, Florida Statutes and/or Chapter 33A of the Dade County Code, if any. 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. If the City pursues a Binding Letter of Determination pursuant to Section 380.06(4)(a), Florida Statutes and/or a Developers Agreement pursuant -46- �k`sv�ml.,t_ to to Rule 9B•►16.18, Florida Administrative Code and/or a Development Order p� ursuant to S tion 380.06 Florida Statutes and/or should the City pursue a letter of interpretation or other Dade County Development of County Impact process for any portion of the Leased Property, the City shall be financially responsible for filing and processing any necessary documentation submitted in connection therewith, provided, however, that nothing herein contained shall be construed to require the City to take any act or expend any funds in order to comply with any of the conditions contained within any Development Order, or other official action, issued as a result of these pursuits. Developer shall have the right to review and approve any such documentation prior to its submission to the relevant governmental agency, and shall be notified of all meetings with governmental staff or officials related to the processing of any of the aforesaid administrative proceedings so that Developer or its representative shall have the option of attending such meetings. Developer agrees to cooperate with the City to the maximum extent possible in these administrative proceedings, including, but not limited to, providing such technical assistance and information as Developer may have reasonably available to contribute to the City' s efforts. If the authority of the City Manager shall change such that the City Manager shall not have the full authority to perform the obligations imposed on that office envisioned under this Lease, then the City shall promptly, upon request of the Developer, designate such other officer or department as may be appropriate to perform the City Manager's obligations. 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, - 47 - 7.7 ._v:=: or carried on by Developer hereunder. Nothing herein contained shall be deemed to limit the right of Developer to contest the validity or enforceability of any statute, law, ordinance, rule, regulations, order or notice with which Developer may be required to comply. Section 3.13 Extension of Time Requirements. The times within which Developer must submit Preliminary Plans, Construction Plans and evidence of financing, and the times within which Developer must commence and complete the development of the Leased Property and the construction of the Improvements thereon as specified in this Article may be extended in writing by the City Manager in its sole discretion, for such periods of time as it deems advisable, for good and sufficient cause shown by the Developer to the reasonable satisfaction of the City Manager. Any such extension of time shall be in writing and in such form as will enable it to be recorded among the Land Records of Dade County. Section 3.14 Alterations and Renovations. After the completion of construction of the Improvements, Developer from time to time may make such alterations or renovations thereof as it shall deem desirable, provided, %p� however, that no renovation or alteration which affects the exterior appearance of the Parking Garage and Area B Surface Lot or substantially affects the overall character and appearance of any public circulation area shall be made until such time as the City Manager shall have approved definitive construction plans and specifications therefore, which approval shall not be unreasonably withheld or delayed. Developer must secure and pay 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- _�t?r`it=.�i%'....F•b�..i. `�; i�..' ar}S� Ui�t r" •,�(?4+�•�.i�k;,'.,'. ..:9� e�:. rv.Nz,?.L �'' � �' _ r»'4' T:. ARTICLE IV LAN_ D, USES Section 4.1. Land Uses. Developer and the City agree, for j 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 Bayf runt 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 y 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. (b) "Owner" means: any person, firm, corporation or other entity which owns, directly or indirectly, legally or beneficially, one percent (A) 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 of'1 (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 Snares 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 (i) is listed for trading purposes on a securities exchange subject to the regulatory jurisdiction of the Securities & Exchange Commission (or its successor) or is publicly traded over the r counter. Section 5.2. Purposes of Restrictions on Transfer. This Lease is t 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 /R 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 Oeveloper or any Owner. The following Transfer shall be permitted hereunder: (a) Any Transfer by Leasehold Mortgage to an Institutional Investor or to an agent, designee or nominee of an Institutional Investor which is wholly owned or controlled by an Institutional Investor or pursuant to a 4W 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 - s�;,'•s"s�'4'i ��`;{�,hv��a'�����'F=4g:R�:�i''?F.�D`�ye�fc'.l;v.,:. (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 A' 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 Leader/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 I'%, into an Acceptable Operator's Agreement. (f) Any Transfer by a limited partner who is an Owner who is a Black American or a Hispanic American to a Black American or an Hispanic American or to an entity which is not an Owner but is owned or controlled by a Black American or Hispanic American immediately after such Transfer which is consented to by the City Manager and City Commission, which consent may not be unreasonably withheld. (g) Any Transfer by an Owner who is a limited partner of Developer 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- - S3 - vided, however, as to a Transfer by an Owner for estate planning purposes for the immediate family, the effective control of ownership is to remain in the transferor or another Black American or Hispanic American. h? (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. Py9r (i) An Transfer for tax syndication y y purposes, provided the General ;T Partner of the Developer remains the managing p general partner of the Developer after the syndication. 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. ,ry Any consent to a Transfer shall not waive any of the City's rights to consent to a subsequent Transfer. Any Transfer made in violation of the terms hereof shall be null and void and of no force and effect. Section 5.4. Notice of Transfer; Information as to Shareholders. (a) With respect to any Transfer which must be approved by the City, Developer shall give or cause to be given to the City written notice (including all information necessary for the City to make an evaluation of the proposed Transfer according to the requirements of this Agreement) of any Transfer of which Developer or its officers shall have knowledge, not less than sixty (60) days prior to any such proposed Transfer and the City shall within thirty (30) days of its receipt of such information, advise Developer if it shall consent to same. If the City shall not consent to a Transfer, the City Manager shall state the reasons for such disapproval in his notice to Developer withholding his consent. If the City is not required to consent to a Transfer pursuant to the terms hereof, Developer shall notify the city in writing of same within thirty (30) days after the date of Transfer. - 54 - A (b) Developer shall from time to time throughout the term of this Lease as the City shall reasonably request, furnish the City with a complete statement, subscribed and sworn to by the President or Vice -President and the Secretary or Assistant Secretary of the general partner of Developer, setting forth the full names and address of holders of partnership interests in Developer, or any general partners of Developer or the stock of any general partner of Developer and the extent of their holdings, and in the event any - other parties have a beneficial interest in such stock, their full names and addresses and the extent of such interest as determined or indicated by the records of Developer, by inquiry which such officers shall make of all parties who on the basis of such records own one percent (1%) 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 (e) and (i) 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 - or 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 - - -_. �_�.-.. .cam-c�.�. �,�.-..': •ax....�r�?�.�', �., .,_.< _ �'�.. .F�.'i._.u.. 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 Participationin Ownership. Developer agrees that no less than twenty percent (20%) of the ownership interest in Developer shall be held by persons who are Black Americans or Hispanic Americans or entities who would qualify as a Minority Business Enterprise controlled by Black Americans or Hispanic Americans as the term "Minority Business Enterprise" is defined in that certain Minority Participation Agree- ment attached as Exhibit H to the Retail Area Ground Lease. Notwithstanding any provision in this Lease to the contrary, any transfer by any limited partner of the Developer in violation of Article V shall be null and void but shall not be deemed to be an Event of Developer's Default. ARTICLE VI MORTGAGEE FINANCING; RIGHTS OF MORTGAGEE or, Section 6.1. Leasehold Mortaaae. (a) Notwithstanding the provisions set forth in Article V hereof regarding any Assignment of this Lease, but subject to the provisions of this Article VI, provided that an Event of Default has not occurred and is not continuing, Developer shall have the right at any time and from time to time to encumber the leasehold estate created by this Lease and any improvements by Mortgage, Sale-Subleaseback transaction, deed of trust or other security instrument, including, without limitation, an assignment of the rents, issues and profits from the Leased Property and Improvements to secure repayment of a loan or loans (and associated obligations) made to Developer by an Institu- - 57 - ,F „ tional Investor (as defined below) for the sole purpose of securing the financing of the construction of any Developer Improvements made pursuant to the terms of this Lease or for the long-term financing or refinancing of any such Improvements. In no event may the amount of such financing or refinancing exceed Development Costs. Developer shall deliver to City promptly after execution by Developer a true and verified copy of any Leasehold Mortgage (as defined below), or any Financing Sublease and any amendment, modification or extension thereof, together with the name and address of the owner and holder thereof. Developer may not encumber the 0% leasehold estate created by this Lease as security for any indebtedness of Developer with respect to any other property now or hereinafter owned by Developer and/or The Rouse Company. (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, row vided, 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- _ tional Investor (as defined below) for the sole purpose of securing the financing of the construction of any Developer Improvements made pursuant to the terms of this Lease or for the long-term financing or refinancing of any such Improvements. In no event may the amount of such financing or refinancing exceed Development Costs. Developer shall deliver to City promptly after execution by Developer a true and verified copy of any Leasehold Mortgage (as defined below), or any Financing Sublease and any amendment, modification or extension thereof, together with the name and address of the owner and holder thereof. Developer may not encumber the 10 leasehold estate created by this Lease as security for any indebtedness of Developer with respect to any other property now or hereinafter owned by Developer and/or The Rouse Company. (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 ®I 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 �i I the owner and holder of a Leasehold Mortgage, rop vided, 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 I - 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 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 00 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 P thereof cannot be remedied by Lender shall be deemed to be remedied if (a) within sixty (60) days after receiving written notice Prom the City Manager setting forth the nature of such Event of Default, Lender shall have acquired Developer's leasehold estate created hereby or commenced foreclosure or other appropriate proceedings in the nature thereof, (b) Lender shall diligently and continuously prosecute any such proceedings to completion, (c) Lender shall have fully cured any default in the payment of any monetary obligations of Developer under this Lease which do not require possession of the Leased Property and Improvements within such sixty (60) days period and shall thereafter continue to faithfully perform all such monetary obligations which do not require possession of the Proj- ect, and (d) within six (6) months after Lender shall have gained posses- sion of the Leased Property and Improvements, Lender shall have entered - 61 - into an Acceptable Operator's Agreement. Upon the taking of possession of the Leased Property and Improvements by Lender, Lender shall perform all of the obligations of the Developer hereunder as and when the same are due except that a Lender shall not be bound by the provisions of subsection 5.7 hereof. Notwithstanding the foregoing, the City agrees that Lender shall not be obligated to complete construction of the Improvements if Lender shall succeed to Developers estate under this Lease. Any assignee or successor in interest to a Lender that has taken possession of the Leased Property must, however, assume all of Developer's obligations 40 (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 hereunder shall be deemed to have been given unless and until a copy thereof has been mailed to Lender. (viii) Foreclosure of a Leasehold Mortgage or any sale thereunder, whether by judicial proceedings or by virtue of any 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 Operators 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 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. I� (ix) Should the City terminate this Lease by reason of any default by Developer hereunder, the City Manager shall give notice thereof to all Leasehold Mortgagees and the City Manager shall, upon written request by Lender to the City Manager received within sixty (60) days after such termination, execute and deliver a new lease of the 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) 40, 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 having remedied and cured or has commenced and is diligently completing the cure of all non- monetary defaults of Developer susceptible to cure by any party other than by Developer. If the City receives written requests in accordance with the provisions of this Section 6.1(ix) from more than one Leasehold Mortgagee, the City shall only be required to deliver the new lease to the Leasehold Mortgagee who is, among those Leasehold Mortgagees requesting a new lease, the holder of the most junior Leasehold Mortgage, provided that such Leasehold Mortgagee shall, not later than the execution of such new lease, either (x) pay in full the sums secured by any or all Leasehold Mortgages which are prior in lien to the Leasehold Mortgage held by such Leasehold Mortgagee, or (xx) agree to reinstate the liens of any or all Leasehold Mortgages which are prior in lien to the Leasehold Mortgage held by such Leasehold Mortgagee with the same relative priority as existed prior to the termination of this Lease. If any Leasehold 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 Lease by suitable amendment from time to time any provision which may be requested by any proposed Lender, or may otherwise be reasonably necessary, to implement the provisions of this Article VI; provided, however, that any such amendment shall not in any way affect the term hereby demised nor affect adversely in any material respect any rights of the City under this Lease. =— (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' s Obligations _ or . City s Rights. Nothing contained herein or in any Leasehold Mortgage shall be deemed or construed to relieve Developer from the full and faithful observance and performance of its covenants, conditions and agreements contained herein, or from any liability for the non -observance or non-performance thereof, or to require or provide for the subordination to the lien of such Leasehold Mortgage of any estate, right, title or interest of the City in or to the Improvements or this Lease. ARTICLE VII REMEDIES Section 7.1. Events of Default - Developer. The following events are hereby defined as "Events of Developer's Default": (a) Failure - Payment of Money. Failure of Developer to pay any Rental, Additional Rental or Public Charges or any other payments of money as herein provided or required, when due and the continuance of such failure for a period of ten (10) days after notice thereof in writing. In the event that any payment or installment of Rental is not paid to 46 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, 99 11 or 13 of the Bankruptcy Code of 1978, 11 U.S.C. (Sec. 10 et seq.) or any successor thereto; or 2. if Developer admits its inability to pay its debts, or if a receiver, trustee or other court appointee is appointed for all or a substantial part of Developer's property; or 3. if the leasehold interest of Developer is levied upon or �+ attached by process of law; or 4. if Developer makes an assignment for the benefit of creditors or takes the benefit of any insolvency act, or if any proceedings are filed by or against Developer to declare Developer insolvent or unable to meet its debts; or 5. if a receiver or similar type of appointment or court appointee or nominee of any name or character is made for Developer or its property; or 6. if Developer shall abandon the Leased Property during the term of this Lease or any renewals or extensions thereof; or - 68 - 7. if Developer shall assign this Lease or sublet any portion of the Leased Property, except as permitted herein. Section 7.2. Remedies for Developer's Default. If any of the Events of Developer's Default shall occur, the City may, at its option, institute such proceedings as in its opinion are necessary to cure such defaults or to compensate the City for damages resulting from such defaults, including but not limited to the right to give to the Developer a notice of termination of this Lease. If such notice is given, except as otherwise provided in Article VI hereof, the term of this Lease shall terminate, upon +� the date specified in such notice from the City to Developer, as fully and completely as if that date were the date herein originally fixed for the expiration of the term of this Lease, and on the date so specified, Developer shall then quit and surrender the Leased Property to the City in accordance with Section 11.5. Upon the termination of this Lease, as provided in this Section 7.2, all rights and interest of the Developer in and to the Leased Property and every part thereof shall cease and terminate and the City may, in addition to any other rights and remedies it may have, retain all sums paid to it by the Developer under this Lease. Section 7.3. Events of Default - City. (a) Events of Default. The failure of the City to perform any of the covenants, conditions and agreements of this Lease which are to be per- formed by the City and the continuance of such failure for a period of sixty (60) days after notice thereof in writing from Developer to the City (which notice shall specify the respects in which Developer contends that the City has failed to perform any of such covenants, conditions and agreements) and unless such default be one which cannot be cured within sixty (60) days and - 69 - 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; It (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 hereunder; (iii) the right to maintain any and all actions at law or suits ,0 in equity or other proper proceedings to obtain damages resulting from such default. Section 7.4. Unavoidable Delay. For the purpose of any of the provisions of this Agreement, neither the City (including the City Manager) nor Developer, as the case may be, nor any successor in interest, shall be considered in breach of or in default in any of its obligations, including but not limited to the preparation of the Leased Property for development, or the beginning and completion of construction of the Improvements, or progress in respect thereto, in the event of unavoidable delay in the performance of such obligations due to strikes, lockouts, acts of God, inability to obtain labor - 70 - or materials due to governmental restrictions, enemy action, civil commotion, fire, unavoidable casualty or other similar causes beyond the reasonable control of a party (not including such party's insolvency of financial condition), it being the purpose and intent of this paragraph that in the event of the occurrence of any such unavoidable delays the time or times for the performance of the covenants, provisions and agreements of this Lease, including but not limited to the obligations of the Developer with respect to construction of Improvements, shall be extended for the period of unavoidable delay; provided, however, that the party seeking the benefit of the provisions of this Section shall, within thirty (30) days after such party shall have become aware of such unavoidable delay, give notice to the other party thereof in writing of the cause or causes thereof and the time delayed. The parties hereto agree that if any delay in the occurrence of any ° event shown on Exhibit G hereto shall be caused by an act of unavoidable delay, the Rent Commencement Date shall be postponed to a date extended by the period of such delay or the Opening Date, whichever is earlier. Notwithstanding the foregoing, Developer agrees to use reasonable and diligent efforts to cause the Parking Garage to be opened for business with the general public by October 31, 1986. Section 7.5. Obli_ _oaations_Rinhts 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 opligation 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 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 - 72 - demand for payment of the same, shall, together with interest thereon at the Default Rate from the date of the receipt by Developer of the aforesaid written notice and demand to the date of payment thereof by Developer, be treated as Additional Rental, and shall be payable by Developer to the City not later than the next monthly installment of the Annual Basic Rental becoming due. (b) Payment of Materialmen and Suppliers. Developer shall make, or cause to be made, prompt payment of all money due and legally owing to all persons doing any work or to subcontractors in connection with the development, r, construction, equipment, repair or reconstruction of any of the Improvements required by this Agreement to be constructed by Developer on the Leased Property. Nothing in this subparagraph (b) shall limit the right of Developer to contest, in good faith, by legal proceedings or otherwise, whether any amount claimed or alleged to be due and owing to any such person is legally due and owing and to withhold payment of such amounts pending resolution of such dispute. Section 8.2. Indemnity. Notwithstanding any policy or policies of �.� insurance required of Developer, Developer shall indemnify and save harmless the City from and against any and all actions, claims or demands, suits at w, in equity or before administrative ri una s, due to the negligence of Developer, its agents, servants, employees or contractors arising out of the use or occupancy of the Leased Property by such persons. Developer shall defend any and all such actions, claims, demands or suits on behalf of the City at Developer's sole cost and expense. The City shall indemnify and save _.� harmless Developer from and against any and all claims or demands, suits at law, in equity or before administrative tribunals, due to the negligence of the City, its agents, servants, employees, or contractors arising out of the - 73 - 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 A& 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 insurable loss occurred, and the cause of the deficiency in insurance proceeds is the failure of the Developer to adequately insure the Improvements as required by this Agreement, Developer must nevertheless rebuild and restore such Improvements pursuant to the terms hereof and must pay the entire cost of same notwithstanding the fact that such insurance proceeds are inadequate. (b) Business Interruption Insurance. Business interruption insur- ance, so that Developer will be insured against loss of business income from the Improvements occasioned by any of the insured against perils included in the Property Insurance policy during the period required to rebuild, repair or replace the property damaged, which policy or policies of insurance shall expressly provide by endorsement thereon that the interest of the City as lessor under this lease shall be covered to the extent earned, in an amount equal to the total of Rental payable during said period of business interrup- tion; provided, however, that Developer shall not be required to carry such rental value insurance as aforesaid until such time as the Improvements shall be opened for business with the general public. The adequacy of the Business interruption insurance may be reviewed by the City Manager every five years. Any review by the City Manager shall not constitute an approval or acceptance of the amount of insurance coverage. (c) Automobile Liability Insurance. Automobile liability insurance and equivalent policy forms covering all owned, non -owned, and hired vehicles used in connection with any work arising out of this Agreement. Such insurance shall afford protection to at least a combined single limit for bodily injury and property damage liability of $1,000,000 per occurrence. The adequacy of the automobile liability insurance coverage may be reviewed every five years by the City Manager. Any review by the City Manager shall not constitute an approval or acceptance of the amount of insurance coverage. - 75 - (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) Garaaekeepers 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. (h) Worker's Compensation as required by Florida Statutes, Chapter 440. (i) Flood Insurance in an amount satisfactory to the City and Developer. (j) Design Defect Excess Coverage. Developer agrees to name the City as an addition insured on any blanket excess coverage policy with respect to design defects in the Parking Garage which may be carried by The Rouse Company. - 76 - Section 9.3. Named Insureds - Notice to City of Cancellation. All policies of insurance described herein shall name Developer and the City as insureds as their respective interests may appear. The policies shall also name as insured, if required by either party or required pursuant to the terms of any Leasehold Mortgage or Financing Sublease, any Leasehold Mortgagee as the interest of such Leasehold Mortgagee may appear. Notwithstanding any such inclusion, the parties hereto agree that any losses under such policy shall be payable, and all insurance proceeds recovered thereunder shall be applied and disbursed in accordance with the provisions of this Lease. All insurance policies shall provide that no material change, cancellation or termination shall be effective until at least thirty (30) days after receipt of written notice thereof has been received by the City. Each policy shall contain an endorsement to the effect that no act or omission of the Developer shall affect the obligation of the insurer to pay the full amount of any loss sustained. Section 9.4. 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 4& *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 Developers Obligations. No acceptance or approval of any insurance agreement or agreements by the City or - 78 - the City Manager shall relieve or release or be construed to relieve or release Developer from any liability, duty or obligation assumed by, or imposed upon it by the provisions of this Agreement. Section 9.6. Loss or Damage Not To Terminate Rental or this IY Ag`nt. Any loss or damage by fire or other casualty, of or to any of the Improvements on the Leased Property at any time, shall not operate to terminate this Agreement or to relieve or discharge Developer from the payment of Rental, or from the payment of any money to be treated as Additional Rental in respect thereto, pursuant to this Agreement, as the same may become due and �► payable, as provided in this Agreement, or from the performance and fulfillmnt of any of Developer's obligations pursuant to this Agreement. Section 9.7. Proof of Loss. Whenever any Improvements, or any part thereof, constructed on the Leased Property (including any personal property furnished or installed in the premises) shall have been damaged, or destroyed, Developer shall promptly make proof of loss in accordance with the terms of the insurance policies and shall proceed promptly to collect or cause to be collected, all valid claims which may have arisen against insurers or others 0 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: U) 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 - 79 - (all urban consumers) as published by the Bureau of Labor Statistics of the Department of Labor (the "CPI") for such 5 year period, or in the event the CPI has changed or is no longer published, such other appropriate measure of changes in the relative purchasing power of the dollar agreed upon by the parties, except that if Developer is then in default under this Lease, such proceeds shall be paid over to City who shall apply the proceeds first to the rebuilding, replacing and repairing of the Leased Property and then to the curing of such default. Any remaining proceeds shall be paid over to Developer. J� (ii) To the Insurance Trustee, if the total recovery is in excess of $500,000.00, which amount shall be adjusted periodically every five (5) years commencing with the Rent Commencement Date by the percentage change in the CPI for such 5 year period as above set forth, to be held by such Insurance Trustee pending establishment of reconstruction, repair or replacement costs and shall be disbursed to Developer pursuant to the provisions of subparagraph (b) of this Section 9.8. The Insurance Trustee shall be a commercial bank or trust company designated by Developer and 10 approved by the City Manager, which approval shall not be unreasonably withheld or delayed. (b) Disposition of Insurance Proceeds for Reconstruction. All amounts received upon such policies shall be used, to the extent required, for the reconstruction, repair or replacement of the Improvements and the personal property of Developer contained therein, so that the Improvements or such personal property shall be restored to a condition comparable to the condition prior to the loss or damage (hereinafter referred to as "Reconstruction Work"). From the Insurance proceeds received by the Insurance Trustee, there shall be disbursed to Developer such amounts as are required for the 59-7I110 -- = Reconstruction Work. Developer shall submit invoices or proof of payment to the Trustee for payment or reimbursement in accordance with an agreed schedule of values approved in advance by the City Manager. Any amount remaining in the hands of the Insurance Trustee after the completion of the Reconstruction Work shall be paid to Developer. (c) Lenders and Lender/Landlords May Have Benefit of Insurance Fund for Reconstruction. In the event Developer, pursuant to Leasehold Mortgage or Financing Sublease, shall at any time authorize a Lender or Lender/Landlord on his behalf or in his stead to enter upon the Leased Property and undertake or prosecute the reconstruction or repair of any building on the Leased Property damaged or destroyed by fire, or other insured -against hazard or peril and to have and receive for Developer or Leasehold Mortgagee's use for such purpose such insurance proceeds, then in that case said insurance proceeds shall be equally available to Leasehold Mortgagee as to Developer as provided in sub- section (b) of this Section 9.8, and it shall in like manner and to like extent at the request of any such Leasehold Mortgagee, be applied to the reconstruc- tion or repair of any such building so damaged or destroyed. qb Section 9.9. Covenant for Commencement and Completion of Recon- struction. Subject to the provisions of Section 9.1(b) and Section 9.10, Developer covenants and agrees to commence the Reconstruction Work as soon as practicable but in any event within six (6) months after the insurance proceeds in respect of the destroyed or damaged Improvements or personalty have been received, and to fully complete such Reconstruction Work as expeditiously as possible consistent with the nature of the damage, but in any event within eighteen (18) months from the start thereof; provided, that if it is not practicable to commence such Reconstruction Work within such six (6) month period, or to complete such Reconstruction Work within such eighteen (18) - 81 - 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 sun 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 Pact 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 Developer's continued use and occupancy in Developer's business, then at Developer's option, in lieu of rebuilding, replacing or repairing the Improvements or the Leased Property as provided in this Lease, Developer may give notice to the City, within sixty (60) days after the occurrence of such damage or destruction, of Developer's intention to terminate this Lease on any business day specified in such notice which occurs not less than sixty (60) nor more than one hundred twenty (120) days after the date of such damage or ' destruction, provided that such notice shall be accompanied by a certificate of the Developer, signed by the appropriate officer or general partner, stating that in the reasonable judgment of Developer, the Improvements and the Leased Property are economically unsuitable for Developer's continued use and occupancy by reason of such damage or destruction. This Lease shall thereupon terminate on such termination date, except with respect to obligations and liabilities of Developer under this Lease, actual or contingent, which have arisen on or prior to such date. Upon giving any such notice of termination - 83 - of this Lease Developer shall, at Developer's expense but at the option of the City, promptly demolish any building or other remaining improvement and shall clear and grade the Leased Property. Section 9.11. Casualty to Bayside Specialty Center_ In the event that all or any portion of the Bayside Specialty Center damaged or destroyed by reason of fire or any other casualty and not restored such that, in the good faith opinion of Developer, it shall be economically unfeasible to use and enjoy the Improvements on the Leased Property, then Developer shall have the right, provided Developer pays off any tax exempt revenue bonds used to construct the Parking Garage and Area B Surface Lot, to terminate this Lease upon giving the City written notice of the exercise of such option and this Lease shall terminate and be null and void as of the date of termination 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 Parking Garage, fifty percent (50%) of the City's costs incurred in connection 0 with the demolition of the Parking Garage. ARTICLE X CONDEMNATION Section 10.1. Entire Leased Property Taken by Condemnation. In the event that the whole of the Leased Property and Improvements (or such portion thereof as shall, in the good faith opinion of Developer, render it economically unfeasible to effect restoration thereof) shall be taken for any public use or purpose by the exercise of the power of eminent domain, or shall be conveyed by the City and Developer acting jointly to avoid proceedings of - 84 - 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. - 85 - 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 — 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; S`: 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 0 shall be paid to Developer and the City in the same proportion as the then Fair Market Value of each .party's respective interest or estate in the Leased Property and the Improvements bears to the total Fair Market Value of the interests and estates of both parties in the Leased Property and Improvements. In the event that the parties cannot agree upon the Fair Market Value of their respective interests and estates in the Leased Property and Improvements within thirty (30) days of the time of the taking, such value shall be determined by the Arbitration Panel, selected in the manner and acting with the authority provided in Section 10.5 of this Article. Section 10.3. Adjustment of Rent Upon Partial Taking. In the event a part of the Leased Property and the Improvements thereon, if any, shall be taken for any public use or purpose by the exercise of the power of eminent domain, or shall be conveyed by City and Developer acting jointly to avoid proceedings of such taking, then Rental, and money to be treated as Additional - 87 - ' - _ ... ... � .. _ .. roar.: •.'r. _- .. �e�'.:4Kdn, .,�.�.�C �Kt�.yRb-�r-.. 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 0 of any portion of the Improvements, such portion shall be applied to pay the cost of restoration, Ui) 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 the Annual Basic Rental, Annual Additional Rental and Annual Percentage Rental. -88- Rentals payable shall, for the -purposes of this Section 10.4, be the Average Rentals paid 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 Is 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 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 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. Section 10.6. Bayside Specialty Center Taken By Condemnation. In the event that all or any portion of the Bayside 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 Property, then the Developer shall have the right, provided Developer pays to 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 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 is part to be kept and performed, shall lawfully and quietly hold, occupy and enjoy the Leased Property without hindrance or molestation by the City during the term of this Agreement or by any person or persons claiming under the City. Section 11.2. Waste. Developer shall not permit, commit or suffer waste or impairment of the Leased Property, or the Improvements thereon, or any part thereof. Section 11.3. Maintenance and Operation of Improvements. Developer shall at all times keep the Improvements constructed on the Leased Property and all furnishings located therein in good and safe condition and repair as other first class projects in similar usage are kept (reasonable wear and tear expected), and in the occupancy, maintenance and operation of such Improve- -92- ments, and of the Leased Property, shall comply with all laws, ordinances, codes and regulations applicable thereto. Section 11.4. Ownership of Improvements During Lease. Prior to the expiration or termination of this Lease, title to the Improvements shall not vest in the City by reason of its ownership of fee simple title to the Leased Property, but title to such Improvements shall remain in Developer. If this Lease shall terminate prior to the expiration of the term hereof and if, at that time, any Lender shall exercise its option to obtain a new lease for the remainder of the term of this Lease pursuant to Article VI, then title to the Improvements shall automatically pass to, vest in and belong to such Lender or any designee or nominee of such Lender permitted hereunder, until the expiration or sooner termination of the term of such new lease. The City and Developer covenant that to confirm the automatic vesting of title as provided in this paragraph, each will execute and deliver such further assurances and instruments of assignment and conveyance as may be required by the other for that purpose. During the term of this Lease, Developer shall be entitled to claim depreciation on the Improvements and all equipment, fixtures and machinery therein contained, for all taxation purposes. Section 11.5. Surrender of Leased Property. Upon the expiration of the Lease term, or upon termination of this Agreement and the Lease term hereunder in respect to the Leased Property, title to the Improvements shall vest in the City and it shall be lawful for the City to re-enter and repossess the Leased Property and the Improvements thereon, without process of law, and Developer, in such event, does hereby waive any demand for possession thereof, agrees to surrender and deliver the Leased Property and the Improvements thereon, without process of law, peaceably to the City immediately upon such expiration or termination. - 93 - Section 11.6. City and_Develgper 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. Section 12.3. Florida and Local Laws Prevail. This Agreement shall be taken and deemed to be governed by the laws of the State of Florida. This Agreement is subject to and shall be interpreted to effectuate its compliance 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- ments. Any conflicts between this Agreement and the aforementioned Codes and Charters shall be resolved in favor of the latter. If any term, covenant, or 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 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 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 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 - Section 12.4. Conflicts of Interests City Representatives _ Not Individually Liable. No member, official, representative, or employee of the City or the City Manager shall have any personal interest, direct or indirect, in this Agreement, nor shall any such member, official, representative or employee participate in any decision relating to this Agreement which affects his or her personal interest or the interest of any corporation, partnership or association in which he or she is, directly or indirectly, interested. No member, official, representative or employee of the City or the City Manager shall be personally liable to Developer or any successor in interest in the event of any default or breach by the City or the City Manager or'for any amount which may become due to Developer or successor or on any obligations under the terms of the Agreement. Section 12.5. Notice. A notice of communication under this Agreement by either the City or the City Manager, on the one hand, to Developer, or, on the other, by Developer to the City or the City Manager shall be sufficiently given or delivered if dispatched by registered or certified mail, postage prepaid, return receipt requested; and (a) Developer. In the case of a notice or communication to Developer, if addressed as follows: General Counsel Bayside Center Limited Partnership c/o The Rouse Company 10275 Little Patuxent Parkway Columbia, Maryland 21044 (b) Developer's Records. Developer's original duplicate books and records in auditable form as required in Section 2.5(d) shall be kept and be available to the City during normal business hours at its principal place of business in the City of Miami. - 96 - �... ... � ..' dS ..�. .. ......•. "CA .�:. .. `a 1i�iJ.i'f, fir t. ,+. � �. (a) City Manager. In the case of a notice or communication to the City or the City Manager, if addressed as follows: City Manager 3500 Pan American Drive Miami, Florida 33133 or if such notice is addressed in such other way in respect to any of the foregoing parties as that party may, from time to time, designate in writing, dispatched as provided in this Section 12.5. Section 12.6. Estoppel Certificates. The City and Developer shall • at any time and from time to time, within thirty (30) days after written request by the other, execute, acknowledge and deliver to the party which has requested the same or to any prospective Lender designated by Developer a certificate stating that (i) the Lease is in full force.and effect and has not been modified, supplemented or amended in any way, or, if there have been modifications, the Lease is in full force and effect as modified, identifying such modification agreement, and if the Lease is not in force and effect, the certificate shall so state; (ii) the Lease as modified represents the entire agreement between the parties as to this leasing, or, if it does not, the certificate shall so state; (iii) the dates on which the term of this Lease commenced and will terminate; (iv) all conditions under the Lease to be performed by the City or Developer, as the case may be, have been satisfied and, as of the date of such certificate, there are no existing defenses or offsets which the City or Developer, as the case may be, has against the enforcement of the Lease by the other party, or, if such conditions have not been satisfied or if there are any defenses or offsets, the certificate shall so state; and (v) the rental due and payable for the year in which such certificate is delivered has been paid in full, or, if it has not been paid, - 97 - _ _-- _ _ .. .. ....♦ I..aIr.0 ,. a� ... r .. • ..�5 'Wl\: Y... 1�Y".MIL, '.7[,lM--� the certificate shall so state. The party to whom any such certificate shall be issued may rely on the matters therein set forth and thereafter the party issuing the same shall be estopped from denying the veracity or accuracy of the same. Any certificate required to be made by the City pursuant to this paragraph may be made on its behalf by the City Manager. Section 12.7. Provisions Not Merged with Deed. None of the provisions of this Agreement are intended to or shall be merged by reason of any deed W transferring Developer's leasehold estate in the Leased Property and Improvements or any part thereof from the Developer (or its successors or assigns) to the City (or its successors or assigns), or (ii) transferring title to the Leased Property or any part thereof from the City to Developer, its successors or assigns, and any such deed shall not be deemed to affect or impair the provisions and covenants of this Agreement. Section 12.8. Titles of Articles and Sections. Any titles of the several parts, Articles and Sections of this Agreement are inserted for convenience of reference only and shall be disregarded in construing or interpreting any of its provisions. Section 12.9. Counterparts. This Agreement is executed in six (6) counterparts, each of which shall be deemed an original, and such counterparts shall constitute one and the same instrument. This Agreement shall become effective only upon execution 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. Developer shall fund the minority development foundation described in Exhibit H to the Retail Area Ground Lease in the amount of $25,000 per annun, which payments shall commence to accrue on the Rent Commencement Date set forth in such Lease. - 98 - El 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 , its President, duly attested to by , its Assistant Secretary and its corporate seal to be hereunto affixed, and the CITY COMMISSION OF MIAMI has caused this Lease Agreement to be signed in its name by , the City Manager, and duly attested to by Ralph G. Ongie, the City Clerk, -on the day and year first hereinabove written. ATTEST: Ts—srsTai-FT secretary 9 [Corporate Seal] ATTEST: Ralph ngie, City Clerk APPROVED AS TO FORM AND CORRECTNESS: CITY ATTORNEY 602F/22A BAYSIDE CENTER LIMITED PARTNERSHIP By: ROUSE-MIAMI, INC., general partner By: res en THE CITY OF MIAMI, A MUNICIPAL CORPORA- TION OF THE STATE OF FLORIDA By: y Manager - 99 - io STATE OF FLORIDA COUNTY OF DADE I, an officer authorized to take acknowledgments, HEREBY CERTIFY that on this day of December, 1984, personally appeared before me and , known to me to be the -- -- ark FTss stant Secretary, respect ve y, of ROUSE-MIAMI, INC., a orida 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. STATE OF FLORIDA COUNTY OF DADE otary Riblic, State of Florida at Large My Commission Expires: I, an officer authorized to take acknowledgments, HEREBY CERTIFY that on this day of December, 1984, personally appeared before me 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 Is 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 PuMc, State of Florida at Large My Commission Expires: - 100 - EXHIBIT Qays Event 0 Fully negotiated executed documen- tation 30 Complete refinement of conceptual design with city 90 Financing commitments obtained 120 Approval of Financing Preliminary plans to City for approval including City departments review and approval 135 City Approval including City departments of preliminary plans 225 Complete review of final plans with City 240 City approval including City departments approval of final plans Issuance of Building Permits 250 Corps of Engineers landfill complete Demolition complete Possession Date 305 Rouse and City commence construction 730 Infrastructure substantially complete 790 Bayfront park improvements sub- stantially complete 850 Parking Garage open to public and Rent Commencement Date 602F/22A-101 a AGREEMENT OF GUARANTY December `, 1984 As used in this Agreement of Guaranty, the term "Ground Lease" means that certain Lease Agreement, of even date herewith, by and between the City of Miami, a municipal corporation of the State of Florida (the "City"), as lessor, and Bayside Center Limited Partnership, a Maryland limited partnership ("Developer"), as lessee, with respect to the Bayside Specialty Center Parking Garage. All other capitalized terms used herein shall have the meaning ascribed to them in the Ground Lease unless otherwise defined herein. The City is willing to enter into the Ground Lease with Developer only if the undersigned guarantees the full, prompt and faithful performance by Developer of all of its obligations under the Ground Lease until Completion Date shall have occurred. NOW THEREFORE, in consideration of the premises and of other valuable consideration and to induce the City to enter into the- Ground Lease, the undersigned agrees with the City as follows: 1. The undersigned unconditionally guarantees to the City the full, prompt and faithful performance by Developer of all of its obligations under the Ground Lease arising on or before the Completion Date, including, without 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 l� 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. 170OF/457A THE ROUSE COMPANY By. President - 2 - Draft - 12/6/84 PARKING GARAGE MANAGEMENT AGREEMENT abetween BAYSIDE CENTER LIMITED PARTNERSHIP and DEPARTMENT OF OFF-STREET PARKING OF THE CITY OF MIAMI December , 1984 TABLE OF CONTENTS Page ARTICLE I: MANAGEMENT AND OPERATION OF PARKING GARAGE 2 1.01 DOSP to Manage, Operate and Maintain 2 1.02 Parking Rates 2 1.03 Employees 4 1.04 Injuries 5 1.05 Duties and Obligations of DOSP 5 1.06 Commodities and Equipment 6 1.07 Gross Revenues and Reports 6 1.08 Expenses 10 1.09 Management Fees and Operating Account 11 1.10 Insurance 13 1.11 Non -Discrimination 15 1.12 Miami Grand Prix 16 1.13 Conditions Precedent 16 ARTICLE II. REMEDIES 16 2.01 Events of Default - Developer 16 2.02 Remedies for Developer's Default 16 2.03 Events of Default - DOSP 17 2.04 Unavoidable Delay 18 2.05 Obligations, Rights and Remedies Cumulative 19 ARTICLE III. INDEMNIFICATION 19 ARTICLE IV. INSURANCE PROCEEDS 20 ARTICLE V: CONDEMNATION, DESTRUCTION AND ARBITRATION 20 5.01 Termination as a Result of Condemnation or Destruction 20 5.02 Arbitration 21 ARTICLE VI. MAINTENANCE STANDARDS 23 6.01 Waste 23 6.02 Maintenance and Operation of Parking Garage 23 (i) TABLE OF CONTENTS ARTICLE VII. MISCELLANEOUS PROVISIONS Page 23 7.01 No Partnership or Joint Venture 23 7.02 Florida and Local Laws Prevail 24 7.03 Conflicts of Interest; City and DOSP Representatives Not Individually Liable 25 7.04 Notice 25 7.05 Titles of Articles and Sections 26 7.06 Counterparts 26 7.07 Successors and Assigns and Rights Upon Termination 26 7.08 Use of Bond Proceeds 26 7.09 Amendments 28 0 1510F/451A .,. .�...... ..... .....raiilia'�t+r..... �, i.: .. .. •'�'.:w4.'.:.r?-tam � v. TABLE OF CONTENTS ARTICLE VII. MISCELLANEOUS PROVISIONS Pae 23 7.01 No Partnership or Joint Venture 23 7.02 Florida and Local Laws Prevail 24 7.03 Conflicts of Interest; City and DOSP Representatives Not Individually Liable 25 7.04 Notice 25 7.05 Titles of Articles and Sections 26 7.06 Counterparts 26 7.07 Successors and Assigns and Rights Upon Termination 26 7.08 Use of Bond Proceeds 26 7.09 Amendments 28 151OF/451A PARKING GARAGE MANAGEMENT AGREEMENT THIS AGREEMENT, made this day of December, 1984 between BAYSIDE CENTER LIMITED PARTNERSHIP, a Maryland Limited Partnership (hereinafter referred to as "Developer") and DEPARTMENT OF OFF-STREET PARKING 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 manage the Parking Garage and the Area B Surface Lot (hereinafter collectively referred to as the "Parking Facilities"); WHEREAS DOSP is an Acceptable Operator; WHEREAS the Developer, in fulfilling its contractual obligations under the Ground Lease, desires to retain DOSP to operate, manage and maintain the Parking Facilities; WHEREAS, Developer and DOSP are entering into this Agreement to more particularly specify and define their respective rights, liabilities and obli- gations with respect to the operation, management and maintenance of the Parking Facilities. 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 MANAGEMENT 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 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 pursuant 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 Parki�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 Pees and rates hereinafter referred to as "Parking Rates"). DOSP shall submit suggested Parking Rates for the Parking Facilities to the Developer simultaneously with the submission of the Budget, which 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 the use of similar facilities in downtown Miami. DOSP may, from time to time, - 2 - suggest revised Parking Rates to Developer. No free parking shall be permitted to any party at the Parking Facilities without the City and Developer's prior written approval. Developer shall submit any proposed changes in Parking Rates to DOSP for comment at least thirty (30) days prior to the proposed effective date of same. If DOSP shall comment on same, the decision of Developer as to Parking Rates shall be binding and conclusive on DOSP. DOSP shall operate the Parking Facilities as public facilities and shall not subject more than five (5%) percent of the parking spaces located in either the Parking Garage or the Area B Surface Lot to monthly parking use; provided, however, that if (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 monthly parking spaces may be increased to the amount and manner proposed by DOSP without violating the Ground Lease or the Loan Agreement entered into between the City and Developer with respect to the financing of the Parking Garage (the "Loan Agreement"), then DOSP shall be entitled to increase the percentage of permitted monthly parking at the Parking Garage, the Area B Surface Lot or both (depending upon which portion of the Parking Facility shall have had said vacancy) by the general public by an amount equal to the difference between the actual vacancy factor during _ week day peak business hours and five (5%) percent, but not to exceed the number of monthly parking spaces approved by bond counsel. In no event, may more than twenty-five (25%) percent of the parking spaces located in the Parking Facilities be subjected to monthly parking use. As used herein, the term "monthly parking" shall mean prepaid parking for a term of no longer than - 3 - one calendar month, available to the general public on a first come$ first served basis. 1.03 Employees. DOSP shall employ all on -site personnel required to fulfill its responsibilities hereunder and no officer, agent or employee of DOSP shall be deemed an employee of Developer for any reason whatsoever. All employees of DOSP located at the Parking Facilities shall be paid within ranges established in DOSP's yearly budget approved by the City. All prospective employees of DOSP hired to perform services under this Agreement, including the Facility Manager (hereinafter defined), shall be examined by a licensed polygraph examiner to determine the accuracy of their employment application and integrity and shall be periodically, as needed, re-examined by the polygraph expert to determine honesty in the receipt and handling of cash, in the payment of expenses and in the preparation of required reports. The costs of such examinations shall constitute an Operating Expense. All employees of DOSP shall be properly uniformed so as to present a neat, clean and professional appearance at all times. All hourly employees of DOSP shall punch in and out on a recording type time clock to be installed at the Parking Garage. DOSP shall provide a facility manager (hereinbefore and hereinafter referred to as the "Facility Manager"), who shall be the full-time, on -site management representative of DOSP, responsible for the competent performance and fulfillment of the responsibilities of DOSP under this Agreement. DOSP shall, at Developer's expense, provide a Blanket Position Fidelity Bond in an 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). - 4 - 1.04 Injuries. Each party shall immediately notify the other of any injury to any person or loss or damage to any property in the Parking Facilities and shall promptly furnish the other party with copies of reports in connection therewith, however, failure of Developer to so notify DOSP or to provide DOSP with reports shall not be an Event of Developer's Default under this Agreement unless DOSP is able to establish that it has suffered direct economic loss as a result of Developer's failure to so notify and/or report to DOSP and failure of DOSP to notify Developer or to provide Developer with reports shall not be an Event of DOSP's Default under this Agreement unless Developer is able to establish that it has suffered direct economic loss as a result of DOSP's failure to so notify and/or report to Developer. 1.05 Duties and Obligations of DOSP. At the cost of Developer, DOSP shall perform all of the following: (A) DOSP shall be responsible for the proper maintenance, repair and upkeep of the Parking Facilities and the interior and exterior of the Parking Garage including (without limitation) the maintenance, repair and upkeep of doors and windows, stairwells, elevators, electronic surveillance system, the toll booths, signs and graphics, the striping and restriping of the Parking Facilities, the maintenance and upkeep of landscaping, grassed areas, and other common areas to at least the standard required by the Developer under the Ground Lease. Routine preventive maintenance, repair and replacement shall be performed by DOSP at hours of low traffic flow, when possible. (B) DOSP shall be responsible for keeping the Parking Facilities including (without limitation) the parking areas, the entrance and exit areas, exit toll booths, restrooms and the office of DOSP in the Parking Garage in a neat and clean condition at all times. - 5 - (C) DOSP shall operate the Parking Facilities as public parking Facilities open for business with the general public on a first come, first serve basis (except with respect to the permitted monthly parking described in Section 1.02 hereof) one hour before and one hour after the hours that the Bayside Specialty Center (as the term is defined in the Ground Lease) is open for business with the general public or for such longer period as DOSP may determine to be necessary to meet the demand for general public use, consistent with prudent business practice. (D) DOSP shall provide security protection in accordance with the 10 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 0 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 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 DOSP to 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 deposit- vault designated by Developer. DOSP shall obtain insurance in a sufficient amount to cover loss of deposit until such time as the depository bank certifies receipt of same. The cost of this insurance shall constitute and Operating Expense. All procedures hereunder shall be subject to revisions 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 daily 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 - ■ independent certified public accountant, licensed in the State of Florida and acceptable to Developer as to Gross Revenues, Operating Expenses and Management Fees arising from operations under this Agreement, prepared in conformance with the American Institute of Certified Public Accountants requirements for "Special Reports". The cost of such reports shall be included as Operating 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, only if prepared by DOSP, certified as true and complete by the Director of DOSP. If DOSP shall fail to deliver to Developer or the City the reports required pursuant to subsection 1.07(3) and (4) hereof, 'or Developer shall give written notice of its desire to audit the annual report, or if the City pursuant to its rights under the Ground Lease shall desire to audit the reports submitted to the City by DOSP on behalf of the Developer, Developer under this Agreement or the City pursuant to its rights under the Ground Lease shall each have the individual right to either conduct an audit or to employ an independent certified public accountant to examine such books and records 40 as may be necessary to certify the accuracy of the annual report. In the event Developer audits the reports at its own initiative or if the City audits the reports or books and records pursuant to its rights under the Ground Lease and the audits demonstrate a discrepancy of more than three percent (N), (in accordance with generally accepted accounting principles, consistently applied) the occurence of such discrepancy shall be an Event of DOSP's Default under this Agreement and the cost of such audit shall be offset against the Management Fee. The external auditing firms of DOSP and Developer and of the City pursuant to the Ground Lease shall be permitted to audit, examine, review and -8- ,.x r: i�•tf. i'���Rrc'` ., - At�iyaL.•'t `-ti�f' _ 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 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 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 - Developer shall review the Budget and have the right to approve all or 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 or required to arbitrate _ any Budget that reveals that estimated Operating Expenses, debt service and other expense items will be greater than anticipated Gross Revenues. The Parking Facilities shall be operated on the basis of the then existing Budget 0 pending resolution of Arbitration. All reports, expense invoices required by this Agreement shall be submitted in writing to the address of Developer set forth in Section 7.05 hereof. ='v 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 0 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 Facilities bear to the aggregate number of spaces in the entire City parking system (not to exceed seven (7%) 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, workers compensation and others, repair and replacement costs including equipment and others, all computer operations costs allocable to the Parking Facilities, uniforms, signs, capital 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 "Operating Expenses"). 1.09 Management Fees and Operations and Maintenance Account. DOSP 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 1/2%) percent of Gross Revenues or Seventy -Five Thousand Dollars of $(75,000) (hereinafter referred to as the "Management Fee") payable to DOSP monthly 0 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 Operating Expenses plus Management Fees with respect to the operation and maintenance of the Parking Facilities. Developer shall within ten (10) days thereafter pay such amount to DOSP. DOSP shall deposit such amount in an operations and maintenance account (the "Operations and Maintenance Account") in DOSP's depositary bank in an account to be known as "DOSP Trust Account for Benefit of Bayside Center Limited Partnership". DOSP shall thereafter pay to itself all Operating Expenses and Management Fees from the proceeds of the - 11 - Operations and Maintenance Account. On a monthly basis, DOSP shall submit to Developer an invoice (hereinafter referred to as the "Monthly Invoice") for all Operating Expenses incurred by DOSP and Management Fees earned by DOSP in the operation of the Parking Facilities for the previous month. The Monthly Invoice shall be certified as true and correct by the Director of DOSP. Developer shall pay the amount set in the Monthly Invoice to DOSP within ten (10) days of its receipt and DOSP shall deposit same in the Operations and Maintenance Account. Developer has the right to use such means as may be appropriate in ithe 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. 0 Should Developer and DOSP be unable to resolve any dispute arising from the provisions of this Section 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 n;t 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 - Maintenance Account a two month surplus of the anticipated monthly payments therefrom by DOSP. 1.10 Insurance. Upon the opening of the Parking Garage and Area B Surface Lot (as applicable) for business, DOSP shall maintain at the cost and expense of Developer which cost and expense shall be included in the Budget, the following insurance during the term of this Agreement: (A) Comprehensive General Liability (including Contractual liability) in limits not less than $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. (0) Theft Coverage covering employee fidelity, inside or outside loss and burglary with a limit of not less than $100,000 per occurrence. (E) Worker's Compensation as required by Florida Statutes, Chapter 0 440. (F) Flood Insurance in an amount satisfactory to Developer, if obtainable. (G) Business Interruption Insurance covering loss of Gross Revenues for a period of at least two (2) years. (H) Insurance on* the Parking Facilities against All Risks of physical loss or damage, including the expense of removal of debris of such property as a result of damage by an insured peril. Such policy shall be for "full replacement costs". Whenever such policy shall be due to be renewed, DOSP shall advise Developer of the proposed renewal amount of such policy - 13 - 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 S The insurance coverage required shall include those classifications as listed in Standard Liability Insurance Manuals, which most nearly reflect the operations of DOSP. Developer shall have a reasonable right to require increases in insurance coverage in accordance with reasonable and prudent business practices. All insurance policies and surety bonds required pursuant to this Agreement shall be issued by companies authorized to do'business under the laws of the State of Florida, with the following qualifications as to management and financial strength: The Company must be no less than "A" as to general policyholder's rating and no less than Class "X" as to financial rating, in accordance with the latest edition of Best's Key Rating Guide, published by A.M. Best Company, Inc. DOSP shall furnish certificates of insurance with the City and Developer named as additional insureds (except with respect to the policy described in (E) above) for the coverages specified herein prior to the commencement of operations hereunder and throughout the term of this Agreement, which certificates shall clearly indicate that DOSP has obtained insurance in the type, amount and classification as required for strict compliance with this Article, and that no material change or cancellation of the insurance shall be effective without thirty (30) days prior written notice to the City and Developer. - 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 9 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 becausA of race, color, religion, national origin or ancestry. DOSP, for itself and its successors in interest, as a part of the consideration hereof, and Developer, for itself and its successors in interest, as a part of the consideration hereof, hereby covenant and agree that (1) no person on the grounds of age, sex or physical handicap (except where based on a bonafide occupational qualification), race, color, sex or national origin shall be denied the benefits of the Parking Facilities, or be subjected to discrimination in the use of the Parking Facilities, (2) and, that in the furnishing of services herein, no person on the ground of age, sex or physical handicap (except where based on a bonafide occupational qualification), race, color, sex or national origin shall be denied the benefits of the Parking Facilities, or be otherwise subjected to discrimination. - 15 - 1.12 Miami Grand Prix. DOSP shall abide by the Grand 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. 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 shall occur, DOSP, to the fullest extent permitted by law shall have the right to pursue any or all of the following remedies: -16- (i) the right to terminate this Agreement and/or to maintain any and all actions at law or suits in equity or other proper proceedings against Developer to obtain specific performance or damages resulting from such default; and (ii) if such Event of Developer's Default shall have occurred as a result of the failure of Developer to pay money to DOSP pursuant to the terms hereof, interest on the amount due but unpaid shall accrue at a rate equal to two (2) percent above that rate from time to time charged by the Citibank, N.A., of New York to its best commercial customers, generally referred to as its prime rate (hereinafter referred to as the "Default Rate") from the date said monies were due to the date actually paid until such time as all of said money together with interest thereon shall have been paid in full to DOSP. 2.03 Events of Default - DOSP. (a) Events of Default. The following events are hereby defined as an "Event of DOSP' s Default": (i) Failure of DOSP to perform any of the covenants, conditions and agreements of this Agreement which are to be performed by DOSP and the continuance of such failure for a period of thirty (30) days after notice thereof in writing from Developer to DOSP (which notice shall specify the respects in which Developer contends that DOSP has failed to perform any of such covenants, conditions and agreements) and unless such default be one which cannot be cured within thirty (30) days and DOSP within such thirty (30) day period shall have commenced and thereafter shall continue diligently to prosecute all actions necessary to cure such defaults, and (ii) the occurance of a discrepancy in DOSP's accounting referred to in Section 1.07 as a result of DOSP's gross negligence or wilful misconduct. -17- (b) Remedies for DOSP's Default. If an Event of DOSP's Default shall occur, Developer, to the fullest extent permitted by law, shall have the right to pursue any or all of the following remedies: 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 Delay. 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 ,.4.tjr,✓, { siq...3. ,ttNs, labor or materials due to governmental restrictions, delays caused by changes in applicable building codes, enemy action, civil commotion, fire, unavoidable casualty or other similar causes beyond the reasonable control of a party (not including such party's insolvency of financial condition), it being the purpose and intent of this paragraph that in the event of the occurrence of any such unavoidable delays the time or times for the performance of the covenants, provisions and agreements of this Agreement shall be extended for the period of unavoidable delay; provided, however, that the party seeking the benefit of the provisions of this Section shall, within fifteen (15) days after such party shall have become aware of such unavoidable delay, give notice to the other party thereof in writing of the cause or causes thereof and the time delayed. - 18 - ? 2,05 Obligations, .Rights and Remedie�lative. 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 diffprpnt timps_ of anv nthpr sir_h rpmpdips fnr the samp default nr hrparh nr of any of its remedies for any other default or breach by the other party. No waiver made by either party with respect to performance, or manner or time thereof, of any obligation of the other party or any condition to its own obligation under this Agreement shall be considered a waiver of any rights of the party making the waiver with respect to the particular obligations of the other party or condition to its own obligation beyond those expressly waived and to the extent thereof, or a waiver in any respect in regard to any other rights of the party making the waiver or in regard to any obligation of the other party. ARTICLE III INDEMNIFICATION Notwithstanding any policy or policies of insurance required of Developer, Developer shall indemnify and save harmless DOSP from and against any and all actions, claims or demands, suits at law, in equity or before administrative tribunals, due to the negligence of Developer, its agents, servants, employees or contractors arising out of the use or occupancy of the Parking Facilities. Developer shall defend any and all such actions, claims, demands or suits on behalf of DOSP at Developer's sole cost and expense. Notwithstanding any policy or policies of insurance required of DOSP, DOSP shall indemnify and save harmless Developer from and against any and all claims or demands, suits at law, in equity or before administrative tribunals, -19- is.......i _+•� •.--"�LG�:. '.Q :V•u'•.Y n•i cYi ` ri.,.�� _ .. � r'S_" i due to the negligence of DOSP, its agents, servants, employees, or contractors i arising out of the management, use or occupancy of the Parking Facilities by Isuch persons. DOSP shall defend any and all such actions, claims, demands or suits on behalf of Developer at DOSP's sole cost and expense. ARTICLE IV INSURANCE PROCEEDS Whenever the Parking Garage or Area B Surface. Lot, or any part thereof, (including any personal property furnished or installed in the premises) shall have been damaged, or destroyed, and DOSP shall become aware of such damage or destruction, DOSP shall promptly make proof of loss in accordance with the terms of the insurance policies and shall promptly give Developer written notice of such damage or destruction. ARTICLE V CONDEMNATION, DESTRUCTION AND ARBITRATION 5.01 Termination as a Result of Condemnation or Destruction. In the event that the Parking Garage or Area B Surface Lot or the Developer Improvements (as the term is defined in that certain Lease Agreement between the Developer and the City of even date herewith for development of the Bayside Specialty Center) shall be taken for any public use or purpose by the exercise of the power of eminent domain, or shall be conveyed to a governmental entity by Developer to avoid proceedings of such taking, or shall be damaged and destroyed and not restored and such event shall result in a termination of the Ground Lease, then the Developer may, upon giving DOSP ten (10) days prior written notice terminate this Agreement. If Developer shall - 20 - so terminate this Agreement, Developer shall pay to DOSP the cost and expenses actually incurred by DOSP in connection with the termination of employees. 5.02 Arbitration. A panel of arbitrators ("Arbitration Panel") shall be established when required by this Agreement. (i) The appointments to the panel shall be made in the following manner: (a) DOSP shall name one member; (b) Developer shall name one member; and (c) The aforesaid members shall promptly name a third member. (ii) Every member of the Arbitration Panel must be an Arbitrator approved by the American Arbitration Association. (iii) If either party shall fail to designate a member within fifteen (15) days after a written request so to do by the other party, then such other party may request the President of the Florida Chapter of the American Arbitration Association to designate a member, who when so designated shall act in the same manner as if he had been the member designated by the party so failing to designate an arbitrator. If the two members are unable to agree upon a third member within ten (10) days from �► 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 determining any matter before them, the Arbitration Panel shall apply the terms of this Agreement, and shall not have the power to vary, modify or reform any terms or provisions of the Agreement in any respect. The Arbitration Panel shall afford a hearing to DOSP and to the Developer and the right to - 21 - submit evidence with the privilege of cross-examination on the question at issue. All arbitration hearings shall be held at a place designated by the Arbitration Panel in Dade County, Florida. (v) A hearing shall be commenced within sixty (60) days following the selection of the last of the three arbitrators. A court reporter shall make a transcript of the hearing. The parties and the Arbitration Panel shall use their best efforts to conclude the hearing within ten days. The parties shall be entitled to such discovery as they may agree, or as determined by the Arbitration Panel. The Arbitration Panel shall have the right to question witnesses at the hearing, but not to call witnesses. The Arbitration Panel may grant continuances for good cause or with the agreement of both parties. The Arbitration Panel may render a decision at the close of the hearing, or may request briefs on any or all issues. Any and all such briefs, including reply briefs, shall be filed with the terms and on the schedule set by the Arbitration Panel, but in any event no later than forty-five (45) days following the commencement of the hearing. The Arbitration Panel shall render a .► determination within sixty (60) days from the conclusion of the hearing. If no determination is rendered within such time, unless the parties agree otherwise, a new Arbitration Panel shall be selected as described above, but the new Arbitration Panel shall render a determination solely upon review of the record of the hearing without a further hearing. (vi) The Arbitration Panel selected hereunder shall agree to observe the Code of Ethics for Arbitrators in Commercial Disputes promulgated by the American Arbitration Association and the American Bar Association, or any successor code. The decision of a majority with respect to any matter referred to it under this Agreement shall be final, - 22 - i 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 Is counsel and witness fees, and one-half (1/2) of all expenses of the third member of the Arbitration Panel. ARTICLE VI 9 MAINTENANCE STANDARDS 6.01 Waste. Neither Developer nor DOSP shall permit, commit or suffer waste or impairment of the Parking Facilities or any part thereof. 6.02 Maintenance and Operation. DOSP shall at all times keep the Parking Facilities and all furnishings located therein in good and safe condition and repair (reasonable wear and tear excepted), and in the occupancy, maintenance and operation of the Parking Facilities, shall comply with the Operation and Maintenance Manual with respect to the Parking & Facilities to be developed by Developer and DOSP within ninety (90) days of the Completion Date. DOSP shall have a right to amend the Operating and Maintenance Manual with Developer's prior written approval, which shall not be unreasonably withheld. ARTICLE VII MISCELLANEOUS PROVISIONS 7.01 No Partnership or Joint Venture. It is mutually understood and agreed that nothing contained in this Agreement is intended or shall be construed in any manner or under any circumstances whatsoever as creating or - 23 - 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 manner whatsoever. It is further understood and agreed that neither DOSP nor any of its Directors, employees or agents have made any representation or 'F warranty to Developer with respect to any federal tax matters applicable to �s?a' the Parking Facilities nor that any tax benefits will be or become available to Developer as a result of the transaction herein described and that x' 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 - fullest extent permitted by law. Developer covenants and agrees that if this 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 unless and to the extent that the Ground Lease shall also be determined to be invalid and unenforceable. Contemporaneously with the execution of the Agreement, DOSP's Attorney has delivered an opinion to Developer opining that the 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, or by Developer to DOSP shall be sufficiently given or delivered if dispatched by registered or certified mail, postage prepaid, return receipt requested; and (a) Developer. In the case of a notice or communication to Developer, if addressed as follows: - 25 - General Counsel Bayside Center Limited Partnership 10275 Little Pautuxent Parkway c/o The Rouse Company Columbia, Maryland 21044 (b) DOSP. In the case of a notice or communication to DOSP, if addressed as follows: Executive Director of Department of Off -Street Parking 190 N.E. Third Street Miami, Florida 33132 or if such notice is addressed in such other way in respect to any of the foregoing parties as that party may, from time to time, designate in writing, 0 dispatched as provided in this Section 7.04. 7.05 Titles of Articles and Sections. Any titles of the several parts, Articles and Sections of this Agreement are inserted for convenience of reference only and shall be disregarded in construing or interpreting any of its provisions. 7.06 Counterparts. This Agreement is executed in six (6) counter- parts, each of which shall be deemed an original, and such counterparts shall constitute one and the same instrument. 7.07 Successors and Assigns and Rights Upon Termination. All of the covenants, conditions and obligations contained in this Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of DOSP and the Developer. Developer shall not assign or transfer its interest in this Agreement except as a part of a transfer permitted pursuant to the Ground Lease. DOSP may not assign or transfer its interest in this Agreement without Developer's prior written approval. 7.08 Use of Bond Proceeds. It is intended that the Parking Garage be financed through the issuance of industrial development bonds (the "Bonds") by the City pursuant to Chapter 159 Part II of the Florida Statutes, therefore, Developer and DOSP covenant and agree as follows: - 26 - (A) the Bonds are intended to be tax-exempt "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 and therefore neither Developer nor DOSP will (i) commit, perform, or cause to be committed or performed any act which will adversely affect the tax-exempt status of the interest on the Bonds, (ii) or fail or refuse to commit or perform any act, the result of which failure or refusal will adversely affect such tax-exempt status; (8) 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 the meaning of Section 103(c); (C) that Developer and DOSP will comply with those provisions of Section 103(c) that are applicable to the Bonds on the date of issuance of the Bonds and that subsequently lawfully may be made applicable to the Bonds (to the extent that provisions of Section 103(c) apply to only a portion of the Bonds, proceeds thereof or other moneys, securities or other obligations deemed to be proceeds, Developer and DOSP intend that the covenants of Developer and DOSP contained in this Section 7.08 be construed to require Developer and DOSP to comply with Section 103(c) to the extent of such applicability); and (D) that neither Developer nor DOSP will, (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 - E 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 by its President and its corporate seal to be hereunto affixed and duly attested to by its Assistant Secretary and the DEPARTMENT OF OFF-STREET PARKING has caused this Agreement to be signed in its name by Roger M. Carlton, the Executive Director of the Department of Off -Street Parking of the City of Miami and duly attested to by the Secretary of DOSP, on the day and year first hereinabove written. ATTEST: John W. Steel, III [Corporate Seal] ATTEST: Secretary 1509F/451A BAYSIDE CENTER LIMITED PARTNERSHIP By: ROUSE-MIAMI, INC., general partner By: DEPARTMENT OF OFF-STREET PARKING OF THE CITY OF MIAMI By: Roger P. Carlton, Director - 28 - MINORITY PARTICIPATION AGREEMENT THIS MINORITY PARTICIPATION AGREEMENT ("this Agreement") made this _____ day of December, 1984 by and between the CITY OF MIAMI, a municipal corporation of the State of Florida ("the City") acting by and through the CITY MANAGER ("the City Manager") and BAYSIDE LIMITED PARTNERSHIP, a Maryland limited partnership ("Developer"). STATEMENT OF BACKGROUND AND PURPOSE By authority of the City of Miami Charter, the City on March 18, 19839 authorized the publication of a request for proposals for the unified development project to be known as wayside 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 and 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: ARTS I DEFINITIONS Section 1.1 Defined Terms. As used herein the term: "this Agreement", means this Minority Participation Agreement, as the same may be modified or amended from time to time provided that any such modification or amendment must be consented to by a four fifths (4/5ths) vote of the Miami City Commission. "Bayside Specialty Center" has the meaning ascribed to it in the Statement of Background and Purpose. "the C-itX" has the meaning ascribed to it in the opening paragraph of this Agreement. "the City Manager" has the meaning ascribed to it in the opening paragraph of this Agreement. "Miami Job Development Program" means a federally -funded City job development program to be selected by the City and Developer. "Construction Contracts" means those certain agreements between the Developer and a construction manager or general contractor for construction of the Developer Improvements, and includes subcontracts with respect to such work between the general contractor and subcontractors or, in the event Developer employs a construction manager rather than a general contractor, the trade contracts between Developer and trade contractors with respect to such - 2 - work, The term "construction contract" does not• include any contract or subcontract with respect to tenant Improvements. "DevelMer" 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. 0 "Minority" means the following persons as defined in the following definitions as approved by U.S. Department of Housing and Urban Development ("H.U.D."), or as may be changed by H.U.D. from time to time, with special emphasis with regard to Blacks and Hispanics: (a) Black (all persons having origins in any of the Black African racial groups not of Hispanic origin); (b) Hispanic (all persons of Mexican, Puerto Rican, Cuban, Central or South American or other Spanish culture or origin, regardless of 9 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- 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. 0 "Minority" means the following persons as defined in the following definitions as approved by U.S. Department of Housing and Urban Development ("H.U.D."), or as may be changed by H.U.D. from time to time, with special emphasis with regard to Blacks and Hispanics: (a) Black (all persons having origins in any of the Black African racial groups not of Hispanic origin); (b) Hispanic (all persons of Mexican, Puerto Rican, Cuban, Central or South American or other Spanish culture or origin, regardless of race); (c) Asian and Pacific Islander (all persons having origins in any of the original peoples of the Far East, Southeast Asia, the Indian Sub -continent, or the Pacific Islands); and (d) American Indian or Alaskan Native (all persons having origins in any of the original peoples of North America and maintaining identifiable tribal affiliations through membership and participation or community identification). "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. "Parking Garage Lease" has the meaning ascribed to it in the Statement of Background and Purpose. "Private Industry Council" means the Private Industry Council of South Florida, a non-profit Florida corporation, having offices at 225 N.E. 34th Street, Miami, Florida 33137. "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. "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. "SBA" means the Small Business Administration of the United States. "Tenant" means a person, firm, corporation or other legal entity using or occupying or entitled to use or occupy any part of the Project. - 4 - • "Tenant Improvements" means those improvements, furnishings, fixtures and equipment required to be made to or installed in the premises leased by a Tenant pursuant to a Tenant's lease or other agreement pursuant to which the Tenant is entitled to occupy premises within the Project. Section 1.2 Terms in the Lease. All other capitalized terms shall have the meanings ascribed to them in the Lease. ARTICLE II CONSTRUCTION CONTRACTS Section 2.1 Goals. Developer agrees to exert diligent, good faith efforts to meet the following goals in relation to the construction of the Project: a. Thirty-five percent (35%) of the total contract price (without duplication) of all Construction Contracts to be awarded to Minority Business Enterprises, including, but not limited to, subcontractors and laborers, and b. Fifty percent (50%) of all construction jobs under Construction Contracts to be filled by Minorities. Developer agrees that where practical and with the cooperation of applicable labor organizations, Developer will make reasonable efforts to fill such construction jobs by Dade County residents. Section 2.2 Developer's Obligation. The Developer's diligent, good faith efforts shall include, but not be limited to, the following: a. Designating specific construction trades for competitive bidding among Minority contractors, b. Encouraging joint ventures between Minority contractors and non -minority contractors, - 5 - c. Requiring the Developer's general contractor to use diligent efforts to hire Minorities from the neighborhoods having the highest rate of unemployment consistent with the need to avoid disruptions due to labor disputes, d. To the extent feasible, providing for small subcontracting packages in an effort to obtain bids from qualified Minority Business Enterprises, e. Waiving bonding requirements for qualified Minority Business Enterprises if (i) that Minority Business Enterprise otherwise meets the requirements of the Developer, (ii) the waiving of the bonding requirement is necessary in order for the bid to be competitive with non -minority bids, and (iii) there is no other Minority Business Enterprise bidding on the same contract that does not require a waiver of the bonding requirements, f. As permitted by the project budget, and consistent with procedures to be established, subcontracts may be awarded to qualified Minority Business Enterprises even if that Minority Business Enterprise is not the lowest bid for particular proposal in order to meet the goal established in Section 2.1(a) , g. Negotiating cash draws upon completion of specific segments of a subcontract or interim payments to a qualified Minority Business Enterprise to which a subcontract has been awarded if (i) the draws or interim payments are necessary, in the opinion of the Developer, to assist the Minority Business Enterprise in meeting any cash flow requirements for the subcontracts and (ii) such Minority Business Enterprise can provide Developer with the evidence required under the contract with Developer that the Minority Business Enterprise has paid all subcontractors, materialmen and laborers performing - 6 - work or supplying material for the Minority Business Enterprise into the Project except for those entitled to claim under such draw or interim payment, h. Advising Minority Business Enterprises who are bidding on contracts, on how to obtain discounts for the purchase for supplies or materials for use on the Project to the degree such information is available so that the Minority Business Enterprise may bid competitively on a contract, i. Advising Minority contractors, who are awarded contracts or subcontracts, who may request, or in Developer's judgment, may need, assistance on the development of managerial skills necessary to coordinate their contract with the other contracts in the Project, and J. Encouraging Developer's general contractor and subcontractors to purchase materials, supplies and equipment for work to be performed on the F Project from Minority Business Enterprises. ARTICLE III PROFESSIONAL SERVICE CONTRACTS t Developer agrees to use diligent, good faith efforts to hire r i consultants and professional service firms, that are either Minority owned or I { who have entered into subcontracts with Minority owned firms in connection with the development of the Project. ARTICLE IV LEASING Section 4.1 Go_. City and Developer agree that the Project should have the highest possible number of Minority Tenants consistent with -7- i.. 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 Oblioations. 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 November 1, 1985 the project opening date is extended beyond November 1, 1986), making them available for leasing to Minority Tenants, consistent with 1*the Project's need to meet rental objectives and to have the maximum possible number of stores, restaurants, and eating places leased and open to the public when the Project opens for business. c. From the outset of the leasing process, Developer will make diligent, good faith efforts to identify a pool of prospective Minority Tenants, and will assign to this task leasing representatives based in Developer's field leasing office in the City of Miami. The efforts of these -8- 'n�,t-,.- representatives will be supplemented as necessary by personnel Prom the hone office of Developer's parent, The Rouse Company. d. Developer will also make diligent, good faith efforts to identify and, as appropriate, stimulate joint ventures between prospective Minority merchants and qualified non -minority business persons or entities in order to provide the Minority partner with the financial or management support necessary or desirable to become and remain a viable Minority Tenant in the Project. Upon agreement of both the qualified minority and non -minority parties, the minority partner in such venture shall have the right to buy-out the non -minority interests in the venture. e. Developer will establish a regular communications and outreach program with the Minority community in the City of Miami and Dade County to make known available Minority Tenant opportunities at the Project. This program will include a public relations campaign (including advertising in local Minority media), presentations to local Minority community groups, mailings to known Minority Business Enterprises, and independent canvassing of local Minority merchants by Developer's leasing representatives. f. Developer will implement a program for interviewing and qualifying Minority Tenant prospects once they are identified. Interested prospects will be required to complete simple qualification questionnaires indicating, among other things, proposed merchandise category, previous business experience and credit history (if any), banking relationships (if { any), and the reasons why the prospect believes he or she would be a successful merchant. Each prospect completing and returning a questionnaire -9- r 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 -10- . - �':"?'^��.1�1' ¢`3�� �t Y�" ~may M- t•x-�?; the amounts budgeted for this purpose for the Project. 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 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- ARTS FOIINDATION Section S.I Put pose. 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 corporations engaged in economic development, such as the Miami -Dade Count �9 9 oA , y 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. Section 5.3 Foundation Contribution. Developer agrees to pay to the Foundation, ten percent (10%) of Net Income Available for Distribution (as the term is defined in the Retail Lease) or $100,000, whichever is greater ("Foundation Contribution"). The minimum $100,000 payment shall be made in - 12 - equal quarterly installments commencing on the Rent Commencement Date, and ending at the end of the term of the Lease. If, at any time, Developer shall cease to be the Owner of the Parking Garage and Parking Garage Parcel (as defined in the Retail Lease), the monetary obligations of Developer hereinabove set forth for any given period shall be reduced by the amount actually paid to the Foundation by the then Owner of the Parking Garage and Parking Garage Parcel pursuant to the terms of Section 12.6 of the Parking Garage Ground Lease (as defined in the Retail Lease). The Foundation Contribution shall be adjusted at the end of each Rental Year based upon the Annual Financial Statement. If the Annual Financial Statement shall disclose a liability for the Foundation Contribution in excess of the amount paid by Developer for the period in question, Developer shall promptly pay such additional Foundation Contribution to the Foundation. Notwithstanding the foregoing, should the Foundation cease to be a 501(c)(3) tax-exempt organization, the Foundation Contribution shall either (i) be placed in an interest bearing escrow account and paid to the Foundation at such time as the Foundation shall satisfactorily prove to Developer that it has qualified as a it, 501(c)(3) tax-exempt organization or (ii) at the written request of the City, be paid to such other non-profit organization qualified as a 501(c)(3) tax-exempt organization which is reasonably acceptable to Developer and which has goals and purposes similar to the Foundation. The Foundation Contribution shall be the only financial obligation that Developer shall have to the Foundation or such other non-profit organi- zation specified in (ii) above. - 13 - 77 ARTICLE VI TENANT EMPLOYMENT OPERATIONS Section 6.1 Tenant _ Emplo__ymen_t. Developer agrees to exert diligent, good faith efforts to work with Tenants in the Ptoject to attain a Tenant employment goal for Minorities of seventy-five percent (75%) of tenant employment openings. While it is recognized that Developer cannot require Tenants to meet any particular hiring quotas, Developer shall: a. Work with the Miami Job Development Program and Private Industry Ig 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, 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 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- `':ti`�; - ... c. - ,...'.��•i'�:�',j,T r F "�, `'.�'�'i�CK.v�iS.}S:b^ire•.`- . _ `_ ..' •;-: .;t"" 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 (73%) 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, 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 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 - . "Y: .�_ - _.�-s-.'::sa:1'^Yr•, �.P:, .w*-lfA.'�y+,?RTM *;,;y, ARTICLE VII MINORITY COMMITTEE On or before 120 days following execution of the Lease Agreement, Developer will establish an ad hoc minority advisory and assistance committee 2 >� ("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 V- will (a) advise Developer on additional means and methods of accomplishing Developer's goals as set forth herein; (b) assist Developer in communicating information to the Minority community concerning opportunities for Minority r; participation in the development, construction, leasing and management of the Project; (c) review on a regular basis Developer's progress with the minority =t� participation program. The Minority Committee shall meet at Developer's field r:. 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 - 15 - 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 8ayside 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 Hanger, if addressed as follows: City of Miami, City Manager 3500 Pan American Drive Miami, Florida 33133 -16- .....,.:F 'Y .. r_ -" �:� _ ,.-w,i �:1�.ihY•�5 wu q.•'�i; •.i'���..rj _ . ■ or if such notice is addressed in such other way in respect to any of the foregoing parties as that party may, from time to time, designate in writing, dispatched as provided in this Section 8.3. Section 8.4 Parking Garage Agreement. Notwithstanding any other provision of this Agreement or the Lease to the contrary, the goals set forth in Article IV shall not apply to the operation of the Parking Garage and the surface parking to be constructed on Area B Surface Lot pursuant to that certain management agreement to be entered into between Developer and the Department of Off -Street Parking. Section 8.5 Titles of Articles and Sections. Any titles of the several parts, Articles and Sections of this Agreement are inserted for convenience of reference only and shall be disregarded in construing or interpreting any of its provisions. Section 8.6 Co� arts. This Agreement is executed in six (6) counterparts, each of which shall be deemed an original, and such counterpart shall constitute one and the same instrument. Section 8.7 Successors and Assigns. Except to the extent limited elsewhere in this Lease, ,all of the covenants, conditions and obligations contained in this Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the City and the Developer. Section 8.8 Records. Developer shall maintain at its field office in the City of Miami records to enable the City to monitor Developer's performance under this Agreement and will permit the City to inspect such records upon reasonable notice. - 17 - - ___.,,.-...__.:'1�k'z}'1, u'S:. `Li.. .-a".ii;, 'a.�.yr�✓2 ;r""i1`,�. ■ Section 8.9 Estoppel Certificates. The City and Developer shall at any time and from time to time, within thirty (30) days after written request by the other, execute, acknowledge and deliver to the other party which has requested the same or to any prospective Leasehold Mortgagee, assignee or Subtenant designated by Developer a certificate stating (i) this Agreement is in full force and effect and has not been modified or amended in any way, or, if there have been modifications, identifying such modification agreement, and if this Agreement is not in full force and effect, the certificate shall so state; (ii) this Agreement as modified represents the entire agreement between the parties, or, if it does not, the certificate should so state; (iii) the dates on which this Agreement took effect and if applicable, terminated; (iv) all conditions under this Agreement by the City or Developer, as the case may be, have been satisfied and, as of the date of such certificate, there are no defaults by the City or the Developer, as the case may be or if such conditions have not been satisfied or if a party is in default, the certificate should so state. The party to whom any such certificate shall be issued may rely on the matters therein set forth and thereafter the party issuing the same shall be estopped from denying the veracity or accuracy of the same. Any certificate required to be made by the City pursuant to this paragraph may be made on its behalf by the City Manager. ARTICLE IX DISPUTES If a dispute shall arise between the City and the Developer under this Agreement including, but not limited to, whether or not the Developer has made -18- I diligent, good faith efforts to meet the goals set forth herein, such dispute shall be resolved by an Arbitrator selected according to the provisions of Section 10.5 of the Lease. The Arbitration shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association. If the Arbitrator shall determine that Developer has failed to make diligent, good faith efforts to meet the goals set forth herein, the Arbitrator may award monetary damages to the City in such amounts as the Arbitrator determines to be appropriate, considering the nature, extent and wilfulness of. Developer's failure. Developer shall have 60 days after the Arbitrator's award and prior ® to the effective date of the damage award in which to cure such failure. The Arbitrator may award the costs of the arbitration, including reasonable attorney fees, against the unsuccessful party to the arbitration. An Arbitrator's decision shall be final and binding upon the parties and enforceable in a court of competent jurisdiction. 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- _ be hereunto affixed, duly attested by its Assistant Secretary, and the CITY - COMMISSION OF MIAMI has caused this Minority Participation Agreement to be signed by __ _ , 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. Ongieq ty er APPROVED AS TO FORM AND CORRECTNESS: 968F/44OF BAYSIDE CENTER LIMITED PARTNERSHIP By: ROUSE-MIAMI, INC., general partner 6y: res Fdent THE CITY OF MIAMI, A MUNICIPAL CORPO- RATION OF THE STATE OF FLORIDA By: ty anger - 20 - Draft - 12/3/84 AMENDMENT TO AGREEMENT THIS AMENDMENT TO AGREEMENT ("this Amendment") dated , 1984 by and between CITY OF MIAMI, a municipal corporation of the State of Florida having an address c/o City Manager's Office, City Hall, 3500 Pan American Drive, Miami, Florida 33133 ("City"), and MIAMI MOTORSPORTS, INC., a corporation organized and existing under the laws of the State of Florida having an address at 10300 S.W. 72 Street, Miami, Florida 33173 ("Licensee"). WITNESSETH: WHEREAS, Licensee and City entered into an Agreement dated June 14, 1982 ("the Agreement") under which City granted Licensee a license to use a portion of Bayfront Park and adjacent roadways and land owned by the City for the staging of grand prix racing events on certain terms and conditions; and WHEREAS, City and Bayside Center Limited Partnership ("Bayside") have entered into a lease agreement ("Retail Lease") for the development of a waterfront specialty center ("Bayside Specialty Center"), and a lease agreement for the development of parking facilities ("Parking Garage Lease") on a portion of Bayfront Park which constitutes a portion of the property for which a license is granted to Licensee under the Agreement. The premises demised under the Retail Lease and the Parking Garage Lease are more particularly shown on Exhibit A and described in the Retail Lease and Parking Garage Lease (collectively called "Leased Property"); and WHEREAS, the City of Miami Department of Off -Street Parking and Bayside have entered into a Management Agreement ("Management Agreement"); and WHEREAS, City, Bayside and Licensee have entered into a Supplemental Agreement ("Supplemental Agreement") of even date herewith; and WHEREAS, the racing events have brought significant economic benefits to the City as well as focusing favorable national and international attention on the City; and WHEREAS, City and Licensee recognize that the Bayside Specialty Center will have a definite impact on the staging of the race; and WHEREAS, City and Licensee desire to set forth their understanding, rights and obligations with respect to staging of the race on or near the Leased Property, the balance of Bayfront Park, the FEC Tract and adjacent public streets by entering into this Amendment to the Agreement. NOW, THEREFORE, for Ten'Oollars ($10.00) and other good and valuable consideration, receipt and adequacy of which is hereby acknowledged, the parties agree as follows: 1. The foregoing recitals are true and correct and are made a part of this Amendment. 2. Paragraph 1 of the Agreement is amended to read as follows: "l. City hereby grants to the Licensee the license permit and privilege to conduct the above referenced auto racing events under the auspices of the International Motor -Sports Association, or other Banc- tioning authorities as referred to in the Agreement, on City property and public rights of way under City authority situated within the racing circuits shown as Exhibits "B" and "C" hereto, which will be duly sanctioned by the appropriate national and international bodies, commencing in 1983 and continuing each year thereafter during the term of this agreement subject to the Supplemental Agreement. The City property within said circuit and covered by this license includes the Leased Property, the balance of Bayfront Park, Bayfront Auditorium and the FEC Tract. Licensee shall have the exclusive right, subject, however, at all times, to the Retail Lease, Parking Garage Lease, Parking Garage Management Agreement, and the Supplemental Agreement, to limit access to this racing event area, provide for race -2- ,� __i;?P`; .iM�t ;.,Gyr. y•�.:Y��r'',"�ti)%.."�.:'!,�'o,:,.�;b�-.o _rtu;: e. "l ;^F';�v«Y track, viewing and pit areas, charge admission fees to persons in the racing event area, and operate all concessioning except as herein provided. Rfl 3. Paragraph 2 of the Agreement is amended to read as follows: tier >> "2. The parties hereto recognize that a portion of Bayfront Park may be under construction during `"u` future years and is scheduled to be under construc- tion during a period commencing on or about March 15, 1985 and ending upon completion of construction of the Bayside Specialty Center which is scheduled to be completed approximately two years later. During the 1985 race, which is scheduled to occur on "i February 23 and 24, 1985, the Licensee shall use the racing circuit shown on the drawing attached hereto as Exhibit B. During the staging of the race in 1986 and each year thereafter until this Agreement termi- nates, the Licensee shall use those portions of the Bayfront Park, and FEC Tract for the race circuits, :�•. staging areas and concession areas located outside - the Leased Property and within the area shown on ` Exhibit C, except as set forth herein. The City `- shall modify Biscayne Boulevard at the Port Boulevard entrance and exit to eliminate the existing dif- ferences in elevation on that portion of Biscayne Boulevard and to make other improvements which in the sole opinion of the City are considered necessary to meet the requirements of the International Motor - Sports Association or other sanctioning authority for use of the area as set forth in Exhibit C. Promptly after the race the City shall remove all .'' tire tracks from road surfaces and sidewalks. 4. Paragraph 27 is amended to read as follows: Licensee recognizes that, upon completion of the Baywalk improvements, the Baywalk area included within the racing circuit will be owned by the United States µ- Army Corps Of Engineers, and that Licensee will be required to obtain approval from the District Engineer prior to the staging of each event. The City shall cooperate with the Licensee in its efforts to obtain this approval. In the event that the Corps of Engineers or other county, state and federal agencies fail to give the necessary permits to conduct the race, the City shall not be liable for any costs or liabilities incurred by the Licensee or for failing to obtain such permits. If Licensee fails to stage any race within two (2) years after the extension of this agreement, the City has the right to terminate this -3- 5. Paragraph 14 is amended to read as'follows: 14. As consideration for the staging of the racing events, and for the provision at City's expense, of City personnel and City services, which services shall include but not be limited to emergency, police, fire, public works, parks, building, vehicle maintenance and sanitation services, and which the City hereby agrees to provide, the Licensee does hereby covenant and agree to pay to the City a percentage of the net profits derived from said event as specified below: From $0 - to $190009000 - 12.5% of net profit From $1,000,000 to $1,5009000 - 15% of net profit From $1,500,000 - 17.5% of net profit The above net profit shall include income from beer sales which shall no longer be subject 'to the percentage payments to the City set forth in City Commission Motion No. 82-630, of July 22, 1982. 6. The attached Exhibit E is substituted for the Exhibit D referenced in Paragraph 15. 7. Paragraph 30 is amended to read as follows: 30. Licensee agrees to reimburse City for materials or supplies which are required in the of staging of the IMSA race and subsequent races. 8. Paragraph 8 is amended to read as follows: 8. Subject to the rights of Bayside under the Retail Lease, Parking Garage Lease Management Agreement and Supplemental Agreement, this license shall authorize the Licensee to operate, or give other concessionaires license to operate, all concessioning within the fenced racing circuit on an exclusive basis, except as herein provided, merchandising articles which shall include but not be limited to food, beverages (including beer and wine), subject to applicable law, and souvenirs. Licensee is further recognized to have exclusive ownership and use rights to the "Miami Grand Prix" and "Grand Prix of Miami" name. The City further understands and agrees that the Licensee will have the exclusive privilege to obtain television -4- 5. Paragraph 14 is amended to read as follows: 14. As consideration for the staging of the racing events, and for the provision at City's expense, of City personnel and City services, which services shall include but not be limited to emergency, police, fire, public works, parks, building, vehicle maintenance and sanitation services, and which the City hereby agrees to provide, the Licensee does hereby covenant and agree to pay to the City a percentage of the net profits derived from said event as specified below: From $0 - to $1,000,000 - 12.5% of net profit From $1,000,000 to $1,500,000 - 15% of net profit From $1,500,000 - 17.5% of net profit The above net profit shall include income from beer sales which shall no longer be subject to the percentage payments to the City set forth in City Commission Motion No. 82-630, of July 22, 1982. 6. The attached Exhibit E is substituted for the Exhibit D referenced in Paragraph 15. 7. Paragraph 30 is amended to read as follows: 30. Licensee agrees to reimburse City for materials or supplies which are required in the staging of the IMSA race and subsequent races. 8. Paragraph 8 is amended to read as follows: 8. Subject to the rights of Bayside under the Retail Lease, Parking Garage Lease Management Agreement and Supplemental Agreement, this license shall authorize the Licensee to operate, or give other concessionaires license to operate, all concessioning within the fenced racing circuit on an exclusive basis, except as herein provided, merchandising articles which shall include but not be limited to food, beverages (including beer and wine), subject to applicable law, and souvenirs. Licensee is further recognized to have exclusive ownership and use rights to the "Miami Grand Prix" and "Grand Prix of Miami" name. The City further understands and agrees that the Licensee will have the exclusive privilege to obtain television -4- ' .p, . "}.^ .. � F' .. � - 5.5.4' "'i.'y+"r ,Frn�.�'s•`r'r ram, �:T° 4 n1..".a �' 1 . �.'.'L - •�<i`, �1 broadcasting rights for the racing events contemplated by this agreement. The parties hereto recognize that the construc- tion and operation of the Bayside Specialty Center will require a modification of the present race circuit, staging areas and concessionaire areas, will decrease the area of Park and adjacent City owned land presently available to Licensee for viewing and pit areas and concession areas, and will cause an adverse impact on Licensee in terms of its exclusive concessionaire rights. Therefore the City agrees to pay to Licensee the amount of $350,000 on or before December 31, 1984 and to pay to Licensee an additional $100,000 impact fee per year for each year of the remaining term of the Agreement, said sum to be paid upon the approval by City Manager of the schedule required pursuant to paragraph 33 of the Agreement. The City agrees that the $100,000 payable to Licensee with respect to the 1985 Racing Event shall be paid to Licensee on or before January 15, 1985. In no event shall City be required to pay said impact fee or any sums otherwise due hereunder in any year Licensee fails to stage a race. The City agrees to pay Licensee the amount of One Hundred Thousand and No/100ths ($100,000) Dollars on or about January 31, 1985 as consideration for the grant herein by Licensee of an option (the "Removal Option") in favor of the City to cause, on a year to year basis during the term hereof, Licensee to stage the Racing Event on a course on Biscayne Boulevard (in no event to include any portion of Bayfront Park) to be determined by the City. The Citagrees that it shall pay to Licensee at least two &) calendar months prior to the Race Event the additional amount of $100,000 with respect to each exercise of the Removal Option by the City. Such $100,000 shall be in addition to any other sums owed by the City to the Developer hereunder. Within 30 days after the City notifies Licensee of the City's intent to exercise the Removal Option, Licensee must provide the City with a proposed race circuit and a setup and take -down schedule. Licensee has advised the City that the proposed Biscayne Boulevard course will mean that the Race Event will not qualify for international status as a result of being less than the required length for such events. Licensee agrees that if for any year the City shall exercise the Removal Option, Licensee -5- f- shall use reasonable and diligent efforts to lengthen the proposed Biscayne Boulevard course in a manner to attain the requisite length to qualify for international car racing sanctions. Such reasonable and diligent efforts shall include Licensee's agreement to attempt to design the course of the Race Event so as to depart Biscayne Boulevard and head in the area of Southeast Financial Center returning again to Biscayne Boulevard so as to add additional length to the Race Event course and thereby qualify for the appropriate sanctions as an international racing event. 9. Paragraph 33 is amended to read as follows: 33. Licensee shall give City six (6) months prior written notice of the date any race is to be 1 staged. Such date must be approved by the City Manager. Licensee shall give City at least sixty (60) days prior to the scheduled event, a schedule showing the dates for installation and removal of grandstands, bleachers, safety devices, and any other apparatus or equipment utilized in connection with the event. Such schedule shall be subject to City's prior approval, which approval shall not be unreasonably withheld. Notwithstanding any other provision of the Agreement or of this Amendment to the contrary, no race event, nor any race -supported event or race -associated event, nor any set-up or take -down period shall be scheduled or held in any year during any of the following periods: (i) the period commencing on the seventh (7th) day before Thanksgiving and ending on the following January 1, and (ii) the periods commencing on the seventh day prior to each of the following named holidays and ending with each respective holiday: Independence Day, Easter and Labor Day, except with the express written consent of City and Bayside Center Limited Partnership, pursuant to the terms of the Supplemental Agreement. 10. This Amendment and the Agreement may be amended by and only by an instrument executed and delivered by each party hereto. 11. Wherever the Agreement shall refer to "this Agreement" it shall be deemed to be referring to the Agreement as amended by this Amendment. - 6 - 12. Except as otherwise provided in this Amendment, the terms and provisions of the Agreement shall remain in full force and effect as if this Amendment had not been entered into. 13. This Amendment shall become effective on and only on its execution and delivery by each party hereto and the approval and execution of the Supplemental Agreement. 14. This Amendment and the Agreement represent the complete under- standing between the parties hereto as to the subject matter hereof, and supersede all prior written or oral negotiations, representations, warranties, statements or agreements between the parties hereto as to the same, except as otherwise modified in the Supplemental Agreement. 15. The Amendment is binding on the parties and their successors or assigns. IN WITNESS WHEREOF, the parties hereto cause this Amendment to be executed by their duly authorized representatives the day and year first above written. WITNESS OR ATTEST: MIAMI MOTORSPORTS, INC., a corporation organized and existing under the laws of Florida ATTEST: Ralph ng e, My Clerk 16b5F/457A By: President CITY OF MIAMI, FLORIDA, a municipal corporation of -the State of Florida By: My Ranager APPROVED AS TO FORM AND CORRECTNESS City AtEorney -7- AGREEMENT THIS AGP.EEi'ENT made and enterer' into this 14th day of June , 1982 by and between the City of Miami, a municipal corporation of the State of Florida, hereinafter referred to as the "CITY" and Miami A.lotdrSports, Inc., 10113 S.W. 72 Street, Miami, Florida 33173, a corporaticn organized and existing under the la,as of the State of Florida, hereinafter referred to as the "L:CEi•�5E=". WITNESSETH WHEREAS, the City desires to expand national and international tourism; and WHEREAS, the City Commission, after reviewing a request submitted by Licensee for the holding of an automobile race in downtown Miami, passed en February 11, 1982, Motion 82-81, approving the holding of the race event; and WHEREAS, the City Commission on '.larch 11, 1982, by Resolution Mo. 82-225, authorized the City Manager to negotiate an agreement with Licensee to sponsor such an event; and WHEREAS, Licensee has been granted preliminary national and international sanction for the staging of an International I'lotorSports Association race currently to be held on February 26 and February 27, 1983; and WHEREAS, Licensee has received preliminary circuit approval from the I11SA for an IIISA race in 1933; and WHEREAS, Licensee desires to be granted a license and privilege to stage an IMSA race in 1983, and, thereafter, racing events sanctioned by IMSA, Formula I Championship,Grand Prix (FIA), Championship Autanobile Racing Team (CART), and/or' Sports Car Club of America (SCCA) during the term of this license; and 1.11 REAS, such an event, as contemplated by the parties, would give favorable publicity and advertising of the advantages and opportunities of the City, and such publicity will be nation and world and WHEREAS, such an event would draw thousands of individuals as partici- pants and spectators and therefore has significant impact on the economy of the City; and WHEREAS, the staging of the racing events will enhance the City's groaning image and draw attention to the City's downtown arld bayfrcnt improvements; and WHEREAS, City is willing to grant Licensee a license and privilege to stage an IMSA race in 1903, and other auto races during the tern of this license as approved by the City: NOW THEREFORE, in consideration of the mutual terms and conditions 00 hereinafter set forth, it is agreed as follows: i 1. City hereby grants to the Licensee the license and privilege to conduct the above referenced auto racing events under the auspices of the International Motor - Sports Association, or other sanctioning authorities as referred to or. Page I of this agreement,on City property and public rights of way under City authority situated within the racing circuits as sh awn on the drawings attached hereto marked Exhibits "A" and "B", which will be duly sanctioned by the appropriate national and inter- national bodies, commencing in 10,83 and continuing each year thereafter during the term of this agreement. .The City property within said circuit and covered by this license includes Bayfront Park, Bayfront Auditorium and the FEC park property. 2. The parties hereto recognize that a portion of Bayfront Park may be under construction during the first year and possibly future years of the races. Should such construction interfere with the staging of any race, the event shall be held on the circuit as shown on the drawing attached hereto marked Exhibit "B". The City property within said circuit and covered by this agreement includes Bayfront Park, Bayfront Auditorium and the FEC park property. The City Manager shall make,the final determination as to which circuit shall be used, no later than ninety (9Q) days before the scheduled date of the event. 3• It is understood that the Licensee agrees to make separate arrangements with any entities having a legal interest in the areas located within the racing circuits conta�7plated by this agreement, including but not limited to the Off -Street Parking Authority, for the use of property which it controls, as necessary, as well as the manager of Bayfront Park Auditorium for its.use and appropriate state and federal authorities for use of public rights of nay not owned- by the City, and further agrees to provide not less than a Six-foot :•lice area pedestrian access along all public sidevialks adjoining private businesses included within the boundaries of the racing circuit. 4. Should any changes be re-quired in either racing circuit, Licensee shall present such changes to City Manager for approval. In addition, should Licensee require any design changes in required improvements, such changes shall be presented to the Director of Public Works for approval. 5- The parties intend that this document shall be a license and privilege and that no leasehold or other interest in land is conferred upon the user. 6. The Licensee agrees it shall be solely responsible for the staging of the automobile race on city -owned property and public rights of way and shall oo obtain all necessary clearances, permits, and permissions and shall bear all cost incurred in obtaining said authorizations. 7. The City will not authorize automobile racing events along these same racing circuits for a period of sixty (60) days before and sixty (60) days after the holding of each of these events. 8• This license shall authorize the Licensee to operate, or give other .concessionaires license to operate all concessioning except as herein provided, merchandising articles which shall include but not be limited to food, beverages (including beer and vine), subject to applicable lava, and souvenirs. Tie City further understands and agrees that the Licensee will have the privilege to obtain television broadcasting rights for the racing events contemplated by this agreement. r -3- 9• This concession p: vilege shall include the period of time during the set-up prior to the motor car race and the dismantle time immediately following the race event. 10. It is understood and agreed that the authorization hereinabove set forth shall be for the week immediately preceding the motor car races herein provided, which shall be that period of time from the Monday preceding the day of the motor car race through the day said motor car race is staged. 11. The Licensee recognizes that there is in full force and effect a con- cession agreement with Torn Baccio for a push cart operation selling hot dogs and cckes in Bayfront Park. It is understood and agreed that the concession rights granted hereunder are not intended to be exclusive in favor of the Licensee (with regard to Mr. Baccio's operation), but that the concessionaire currently having concession rights granted by the City is to be allowed to sell his goods during the motor car race event along with the Licensee. 12. It is agreed that the City take into account these racing events as part of the deliberative process when considering plans for development within the racing circuits. It is further agreed that Licensee recognizes the existing leases between the City and Restaurant Associates for Reflections and New World Marinas, Inc. for Miamarina, and will provide access to clients of both facilities at all times during this event or access to any future development which may occur within the racing circuit. 13. The term of this agreement shall be for an initial period of five (5) years, (the "initial term") . It shall cerrarence upon the signing of this agreement. The Licensee shall have the option of extending the term of this agreement in two (2) additional increments of five (5) years each (the "extension periods") up to i a total of fifteen (15) years. If Licensee elects to extend the term of this agreement for the first 5-year extension period, Licensee shall give the City written notice of its intention to exercise its option at least one hundred eighty (180) days prior to the expiration of the initial term of this agreement, and if Licensee elects to extend the term of this agreement for the second 5-year extension period, Licensee shall give City written notice of its intention at least one hundred eighty (100) days prior to the expiration of tKie first 5-year extension period. 14. As consideration for the staging of the race event, the Licensee does hereby covenant and agree to pay to the City a percentage of the net orefits derived from said event as specified below: From 5-0- to $1,000,000 - 10 3 of net profit From $1,000,000 to $1,500,000 - 12.5% of net -profit - From $1,500,000 - 15% of net profit 15. The City's percentage of net profits as described above shall increase in all categories of the percentages in this license in the sixth (6th) year of this license and each year thereafter through the tenth (loth) year in the amount of I'Vjo percent (2%) per year. From the eleventh (11th) year through the fifteenth (15th) year of this license, the City's percentage levels of net profit shall remain constant. (See Exhibit "D".) 16. The Licensee shall deliver on or before one hundred twenty (120) days following the event at the office of the Department of Finance of the City, or at such other place as may be designated thereafter by the City Manager the amount of the consideration payable to the City attributable to the "net profit" derived by the Licensee from all income, charges, sales, receipts, commissions paid to or received by the Licensee or ticket sellers, including but not limited to, income from ticket sales, media income, sponsorships, exclusives, advertising, concessions, contributions, program sales and special events. Along with said payment, the Licensee shall provide a statement in certificate fore signed by a -5- 6 11 Certified Public Accountant setting forth the amount of gross receiots and opera- tional cost and expenses which shall include all debts, obligations, cost, and expenses incurred by the Licensee in preparation for and staging of the racing event. Specifically excluded from any operating cost or expenses shall be any payment to stockholders, officers, or principals df the Licensee for any direct or indirect participation in enterprises in connection with the racing event. 17. The approved operational expenses which shall be deducted from gross receipts are depicted in Exhibit "C". The gross receipts of the racing event minus the approived operational expenses shall be the net profit. Any additional expenses not outlined in Exhibit "C" must be approved by the City Manager. Operational expenses in the categories listed in Exhibit "C" are acceptable race expenditures. Specifically excluded frcm operating costs shall be corporate taxes. 18. A complete budget, including operational expenses, shall be submitted to and approved by the City Manager no later than one hundred twenty (120) days before tie scheduled race date yearly. 19. Should the Licensee fail .to rake payment of the consideration due the City within one hundred tvienty (120) clays following the event, a late payment charge of 200 of the amount due the City will be assessed to the Licensee. 20.• Licensee shall provide the City Manager with a copy of the Articles of Incorporation for Miami MotorSports, Inc. before signing this agreement. 21. Licensee shall, at its sole cost and expense, apply for all necessary national and international sanctions to allow each annual event to be qualified as an IMSA or other automobile race. Copies of such sanctions shall be foiiiarded to the City Manager upon receipt by Licensee, but no later than one hundred twenty (120) days.before the scheduled date of the race. 22. No later than sixty (60) days prior to the staging of the International Motor'Sports Association race, which is to be held on February 27, 1983, or such other date as the parties may agree upon, Licensee shall demonstrate sufficient capability to finance the installation of the requisite street improvements and ■ 0 safety devices. Such demonstration of financial capability shall be in a form acceptable to the City Manager. Thereafter, no later than sixty (60) days prior to the staging of each race, Licensee shall submit to the City a financial state- ment certified by an independent Certified Public Accountant, which reflects l sufficient working capital to stage the forthcoming race. In.the event that the Licensee fails to comply with the provisions of this paragraph, City shall have the right to terminate this agreement. 23• The Licensee agrees to design, construct, or cause to be constructed, and install all necessary street improvements and safety devices in accordance with the plans approved by the national and/or international sanctioning bodies, which may be necessary to create a racing circuit, together with any and all supporting facilities. Such supporting facilities include, but are not limited to those required for medical, sanitation or other services the City may deem appropriate for events of similar type. Bathroom facilities will be provided in accord with IMSA or other sanctioning body standards. 24• Licensee agrees to post no later than one hundred twenty.(120) days before each race an irrevocable performance bond or other security in the amount of one hundred thousand dollars ($100,000) with the City conditioned upon the 00 faithful -performance of the Licensee duties under this agreement. Amount of said bond or security may be increased as deemed necessary by the City Manager. The City Attorney's office shall approve as to form of the bond or security. 25. All construction performed under this agreement shall be in accordance with all applicable laws and regulations applying thereto. 26. The City agrees to assist in obtaining necessary permits and authori- zations from applicable government agencies to close affected streets, recto medians, and construct pedestrian overpasses as necessary for the staging of this event: -7- 27. In the event that it is necessary to obtain permission from the Corps of Engineers for the use of that portion of Layfront Park under their control, the City shall cooperate with the Licensee in obtaining this approval. In the event that the Corps of Engineers or other county, state, and federal agencies fail to give the necessary permits to conduct the race, the City shall not be liable for any costs or liabilities incurred by the Licensee or for failing to obtain such permits. If Licensee fails to stage any race within two (2) years after the extension of this agreement, the City has the right to terminate this license. 28. Upon the expiration of the term of this agreement or any extension thereof, the improvements, devices and facilities constructed by Licensee, which are permanently affixed to public property or which shall create a hazardous condition of said -public property by their removal, shall become the property of the City without compensation therefore, if the City so elects. All other devices must be removed by Licensee upon the expiration of the term, or any extension thereof, of this agreement or upon the earlier termination thereof. 29. Should such devices as the safety barriers not be removed in a timely fashion, the City has the right to conduct such activity and bill Licensee for same. 30. Licensee agrees to provide for all expenses incurred by the Ci.ty in providing emergency, police, fire, sanitation, or other services, and to reim- burse City for personnel, materials or supplies which are required in the staging of the IMSA race and subsequent races. 31. No later than ninety (90) days prior to the staging of the IMSA or any other race, the Licensee shall notify the City of exact fire, police, and sanita= tion requirements for the staging of this race. 121 •licensee shall promptly remove all grandstands, bleachers, safety devices and any other equipment and apparatus utilized with regard to any event to which this agreement applies, such removal to be completed within the times set forth i N the schedule referral to an -a .I ;.f this agreement. Licensee shall re 0 all City streets and facilities to the condition such streets and facilities were in prior to the event. All equipment and apparatus under the control of the Licensee and which may be required for subsequent events shall be stored at the Licensee's sole cost and expense. At the expiration of the term of this agreement, or the sooner termination hereof according to the provisions of this agreement, the Licensee shall, to City's satisfaction, restore all premises to their original ccndition, insofar as possible. 33. Licensee shall give City six (6) months prior written notice of the date any race is to be staged. Such date must be approved by the City tanager. Licensee shall give City at least sixty (60) days prior to the scheduled event, a schedule showing the dates for installation and removal of grandstands, bleachers, safety devices, and any other apparatus or equipment utilized in connection with the event. Such schedule shall be subject to City's prior approval. 34. City will cooperate with Licensee in promoting the race in Miami through appropriate departments or offices through their normal operations. 35. Licensee agrees that in its operation and promotion of the said race, that such promotion and the operations of Licensee shall provide a quality of service commensurate with and equal to an international event of comparable nature. 36. Licensee shall pay, prior to delinquency, all taxes, assessments and other governmental charges that may be laid or levied upon its promotions and operations under this agreeemnt throughout the full term hereof. 37. Licensee and concess i onai res sha 11 at al 1 times i n the promotion of the events contemplated under this agreement, and their operations in regard thereto, comply with all laws, ordinances and regulations applicable thereto, enacted or pro- mulgated by federal state, city or other governmental bodies or departments or officers thereof, including the City Charter, the Municipal Code of the City, and directives of City's City -t-tanager. 38. Under no circumstances will the City be liable for any expense incurred by Licensee on behalf of this event. Ma 39. In the performance of this agreement Licensee and/or. concessionaires shall not discriminate against any employee or applicant for employment tecause of sex, age, race, color, religion, ancestry or national origin. Licensee and/or concessionaires will take affirmative action to insure that applicants are employed and that employees are treated during employment, without regard to their sex, age, race, colt:^, religion, ancestry, or national origin-. Such action shall include, but not be iimited to, the followin.: employment-, upgrading, demotion or transfer, recruitment, or recruitment advertising, layoff or ter.ination, rates of pay or other forms of compensation. 40.City shall have the right at all reasonable times, so long as it does not interfere with the operations of Licensee, to make whatever inspections City �— deems reasonably necessary to determine if Licensee is ccm.plyin3 eii-th the terms and conditions of this agreement. Licensee agrees to provide the City with rea- sonable access to its operations for such inspection purposes. 41. Licensee shall maintain appropriate records pertaining to its business operaticns with regard to staging the race events contemplated herein as may be reasonably required by good accounting practices. City shall have the right at all reasonable times to examine the books and records of Licensee, which shall be maintained and kept by the Licensee. City's City Manager small have the discretion to require the installation of any additional accounting methods as he may deem reasonably necessary. 42. Licensee small obtain at its sole cost and expense, or cause to be obtained, and maintain in full force and effect throughout the teni hereof, all necessary and required licenses, permits and authorizations to stage the races contemplated herein. 43. It is contemplated by Licensee that there will be events, other than the race events, staged by Licensee. Such other events are to be categori-zed as a race -support event or a race -associated event. It is agreed that a race-suppor event is an event which is required in order to stage the motor car races contem- plated herein, and is an event without which such motor car race cannot be held or the holding of such motor car race is substantially impaired. it is agreed that a race -associated event is an event which is held during the week preceding the motor car race, whether the IMSA race or other race event, and -which event is not required in order to stage such motor car races. 44. Licensee shall give City written notice of at least six (6) months prior to the time the rrr park prcper;.y, Eay-ront auditorium, and Eayfrcnt Park facil i- ties are required by Licensee.for either race -supported events or race -associated events. 45. Licensee shall indemnify, hold harmless, save and defend the City, its officers and employees from and against any and all claims, liens, liability, loss or damage, including but not limited to cost, expenses and attorney's fees caused by the actual or claimed negligence (active or passive) of Licensee, its agents, employees, contractors, concessionaires or licensees, or either of them, either as a sole or contributory cause, for loss of, use of, injury to or destruction of any property and/or bodily or personal or other injuries, including death, at any time resulting therefrom, sustained by any person or persons, including officers and employees of the City, or in any manner attributable to any and all actions, representations, or perforinance of the provisions of this agreement. 46. Licensee shall further indemnify, hold harmless, save and defend the City, its officers and employees from and against any and all claims, liens, liability, loss or damage, including but not limited to cost, expenses and attorney s fees arising out of the City's statutory obligations pertaining to defective con- ditions in the race circuit and appurtenances thereto, including obligations under the Florida statutes relating to dangerous condition of public property. The forgoing shall not apply to claims or actions for injuries, or damage or loss caused by the sole active negligence of the City, its officers or employees. agents or contractors, i 47. Licensee shall obtain and keep in force at all times during the staging of the NSA race and subsequent races a policy of public liability and property darr:ace insurance, protecting City, its officers and employees, against any and all liability due to.the death, injury, loss or damage to persons or property arising out of, or in any way incident to Licensee's operations. 48. Licensee agrees to provide a liability policy in comprehensive form in the amount of not less than twenty million dollars (S20,000,000.00) combined single limits for bodily injury and property damage. Additionally, the insured must provide products and complete operators coverage and must make the City an 1 additional named insured under the policy.' 49. A certificate evidencing such insurance coverage as is provided for herein shall be filed with the City's Insurance Manager prior to the commence- ment of performance under this agreement, and such certificate shall provide that such insurance coverage will not be cancelled without at least thirty (30) days' prior written notice to City. At least thirty (30) days prior to the expiration of any such policy, a certificate showing that such insurance coverage has been renewed shall be filed with the City's Insurance Manager. 50. The procuring of the insurance coverage as provided for herein shall not be donstrued to be a limitation in -any respect upon Licensee's other obligations under this license. 51. City reserves the right to review the sufficiency of the insurance policy, as required by this Licensee and to request Licensee to change the insurance coverage to be provided in any policy of insurance as provided for herein. Licensee shall, upon receipt of such request, increase the limits of such insurance to any amount satisfactory to City. Such amount shall be commensurate with other events of this nature. t -12- 51! 52 • Licensee agrees to insure that the event is conducted without unjustified interference with business and individual activity in and about the areas where the said event is staged. 5 3. Licensee shall not assign this agreement, or any part thereof, without first obtaining the written consent of City's City Manager. The approval or consent of the City;Manager shall not be unreasonably withheld. Any assigrmert of this agreement contrary to the `ereecing provision, whether voluntary or involuntary, shall be void and shall confer no right upon said assignee, and the sane shall result in an immediate forfeiture of the rights of Licensee hereunder. 54. Any :•raiver by either party of any breach by either party of any one or • t t more of the covenants, conditions or provisions of this agreement shall not be construed to to a waiver of any subsequent or other breach of the sane or any covenant, condition or provision of this agreement, nor shall any failure on the part of the City to require or exact full and complete compliance by Licensee with any of the covenants, conditions or provisions of this agreemnent be construed as in any manner changing the terms hereof or to prevent the City free enforcing I full provisions hereof, nor shall the terms of this agreement be changed or altered.in any manner whatsoever other than by written agreement of the City and Licensee. 55. If Licensee at any time during the term of this agreement, or any extension thereof, should be in default in any term, provision or covenant of this agreement, and shall fail to remedy such default within thirty (30) days after written notice from City, then, if such default is not cured, City may, at its option, terminate this agreement by giving Licensee written notice of City"s el^ction to terminate this agreement at least fifteen (15) days prior to said data of termination. Ll 5 6. Any and all notices to be given to Licensee under this agreement or required by lay, to be served upon the Licensee may be given or served by certi- fied or registered letter addressed to the Licensee at the address hereir.before set forth, deposited in the U.S. mail with postage prepaid. Any notice or notices to be given to the City under this agreement or required by law to be served upon the City may be given or served by certified or registered letter ad.:rss;ad to the City's Ci .%: Manager at the City Hall, 3500 Pan rreric.:n Diva, yiamni, Florida 33133, deposited in the US. mail with postage prepaid. Any notice served by means of the L:S. mail shall be effective frerm the date of ma M na said notice. 57. In the event that any portions of this agreement shall be held to be invalid for any reason, such invalidity shall not affect the remaining portions of this agreement and the same shall remain in full force and effect. -14- C I ) IN WITNESS WHEREOF, the parties hereto have caused these present to be executed with all the formalities required by 1aa on the resoective dates set forth opposite their signatures. ,1982 ,1 g82 ,1982 :10 ! O ,1982 MIAMI MOTOR. IPlC., a corpora K ! 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't•"` tr 1,r�'•'•+. ♦•..+,w.•5««• t " y.�«,!A't#S�, r �,,,t •.9e J t ••,�. 6'.:.+ ►!a• • ,� i ' (t ' /�t .« � 'l.sl, �'. �.•. �� w;-r:'.....:. :i+-- .. +'�3t k ,� 1 _ �J+.. ,. i tt .�./j �,�,•J' K`!+"�L t i.4wt t'1V-' �. ,.t.C. ' /t•i•�.� �� .�.T 1�•, •..•ii!'S�yt w;r:` it '''• t t r,•'a.'J rri `a}7•�•., ..{�'�-.�.«�,Lw»y�-t-'rl^•','.w•rw •.iw�•I+p•r"'�.. s�•s��n��t N1 le-". T-!5• l.,[[:`' t!".ir`I "'►'��[,' y:,''�+� �1`a,,t. F t�,�t I] 12 EXHIBIT "C" Office Rent Utilities Office Equipiment Office Supplies Employees' Salaries Insurance Travel (business related) Relocation of Trees Landscaping Repairs Street ?, Median Improvements/Repairs Marketing & Promotion, Public Relations Sanctioning -Fees Chainlink Fences Plywood/lMasonite Boards Bridges Ccncr:!.e Barriers Sanitary Facilities Police/Security Fire Clean-up Bleachers Misc. Booths, Tents, Etc. Misc. Employees, Traci'. Preparation Race Day, etc. Sound System Attorney's Fees (.Limited -to S5,000 unless related to lawsuits resul- ting from race activities) Accounting Fees Engineering Fees Surveyor's Fees Aerial Photos Taxes Commissions (sponsors,- ticket sales) Guest Appearances Fees for Bayfront Auditorium, Department of Off -Street Parking ••• Communications System Trailer Rentals Printing Flags & Decorations Traci: Preparation, Signs, etc. Ambulances, Paramedics, Doctor, Nurses Race Workers Race Purse, Prizes All expenditures must be directly race -related or they will be disallowed:• All deductible operating expenses must be approved as a part of the budtjct by the City Manager. I EXHIBIT "b" Year of filet croft t to Ci tv 1 throuch 5 From $-0- to $1,000,000 103. of net profit From $1,000,000 to $1,500,000 12.5' of' -net profit From $1,500,000 lb 15S' of net profit 6 From S-n- to S1,000,000 123 of net profit From 51,000,000 to $1,500,000 14.55' of net profit From $1,500,000 17% of net profit 7 From $-0- to $1,0001000 14% of net profit From S1,C00,000 to $1,500,000 16.59 of net profit From 51,500,000 1974' of net profit 8 Frcm $-0- to $1,000,000 16S of net profit From S1,000,000 to S1,500,000 of net profit Frcm S_,500,000 21`: of net profit 9 From $-0- to $1,000,000 18`j' of net profit Fran S1,000.000 to $1,500,000 20.524 of net profit From $1,500,000 23`0 of net profit 10 From $-4- to $1,000,000 20' of net profit' From $1,000,000 to $1,500,000 22.554 of net profit From $1,500,000 25;;' of net profit - 11 through 15 From $-0- to $1,000,000 20°S of net profit From $1,000,000 to $1,500,000 22.5'S of net profit i From $1,500,000 25CJ of net profit SUPPLEMENTAL AGREEMENT THIS SUPPLEMENTAL AGREEMENT ("this Agreement") dated , 1984 by and between the CITY OF MIAMI, a municipal corporation of the State of Florida having an address c/o City Manager's Office, City Hall, 3500 Pan American Drive, Miami, Florida 33133 ("City"), MIAMI MOTORSPORTS, INC., a corporation organized and existing under the laws of the State of Florida having an address at 10300 S.W. 72 Street, Miami, Florida 33173 ("Licensee"), and BAYSIDE CENTER LIMITED PARTNERSHIP, a limited partnership organized and existing under the laws of the State of Maryland, having an address at 10275 Little Patuxent Parkway, Columbia, Maryland 21044 ("Bayside"). WITNESSETH: WHEREAS Licensee and City entered into an Agreement dated June 14, 1982 ("the Original License") under which City granted Licensee a license to use a portion of Bayfront Park and adjacent roadways and land owned by the City for the staging of grand prix racing events on certain terms and conditions; and WHEREAS Licensee and City acknowledge that the Original License is in full force and effect and that neither party is, as of the date hereof, in default of the Original License; and WHEREAS Bayside and City have entered into a Lease Agreement of even date herewith for the development of a waterfront specialty center ("Bayside Specialty Center") on a portion of Bayfront Park (the Lease Agreement, as amended from time to time hereinafter called "Retail Lease") and a Lease Agreement of even date herewith for the development of an approximate 1200 car parking garage and related surface parking (collectively "Parking Garage") (the Lease Agreement, as amended from time to time, hereinafter called "parking Garage Lease"). The premises demised under the Retail Lease and the Parking Garage Lease are shown on Exhibit A attached hereto and made a part hereof and are more particularly described in the Retail Lease and the Parking Garage Lease (hereinafter collectively called "Leased Property"); and WHEREAS, City, Bayside and Licensee desire to set forth their understanding, rights and obligations with respect to staging of the race, race -supported events and race -associated events on or near the Leased Property and the balance of Bayfront Park by entering into this Supplemental Agreement contemporaneously with the execution of the Amendment to Agreement ("Amendment") by and between the City and Licensee which amends the Original License (the Original License as amended by the Amendment hereinafter called "License"), NOW, THEREFORE for Ten Dollars (10.00) and other good and valuable consideration, receipt and adequacy of which is hereby acknowledged, the parties agree as follows: Section 1. Permitted Events. 1.1. Race Event. As of the date of this Agreement, the race events contemplated by the License currently consistA of an annual two (2) day race (exclusive of set-up and take -down periods) for race cars that occurs on a Saturday and Sunday ("Race Event"). Thewrties agree that with the City's and Bayside's prior express, written approval in each instance, the Race Event may be longer than a two (2) day period annuallykMa oL there may be more than one annual Race Event. The parties agree that if the Licensee were to request that the Race Event be expanded beyond two (2) days or that the Race Event occur more than once annually, the City, Licensee and Bayside shall in good faith negotiate if and in what manner the Race Event can be expanded without - 2 - adversely effecting the ability of the Bayside Specialty Center to operate normally. 1.2. Race -Supported Events and Race -Associated Events. Section 43 of the License provides that Licensee contemplates conducting race -supported events and race -associated events in addition to the Race Event. As of the date of this agreement, the only race -associated events are (i) the registration and inspection of race cars conducted the day before the Race Event on the race course and (ii) the go-cart races conducted on the FEC Tract the Sunday before the Race Event. As of the date of this Agreement, Licensee ' is not conducting race -supported events. Should Licensee elect to conduct any other race -associated events on any race -supported events in locations on F those portions of the Leased Property which form part of the race course as shown on Exhibit B or in the Bayside Approval Area (as hereinafter defined) or should any such events be located on the FEC Tract and involve hazardous materials, the parties agree to negotiate in good faith how the race -supported event and/or race -associated event may be conducted so that the events may be held without adversely affecting pedestrian and vehicular access to and from the Leased Property or otherwise adversely affecting the use and enjoyment of the Leased Property by Bayside, its tenants, substenants, licensees, and their employees, agents and business invitees. Such negotiations shall commence no later than ten (10) days after the date Licensee gives the City notice pursuant to the License that Licensee intends to conduct a race -supported event or race -associated event. Notwithstanding the foregoing, Bayside shall not be obligated to close the Parking Garage or to do any of the activities specified in Section 4.2 of this Agreement except during the Race Event. - 3 - Section 2. Notice and Approvals under the License. 2.1. Notices and Approvals. Whenever Licensee is required under the License to give the City notice or to provide the City with insurance informa- tion or to request the City's consent on approval, the City, immediately upon receipt of such notice or information, shall forward a copy to Bayside in accordance with Section 8 of this Agreement. 2.2. Limitation on Bayside's Approval Rights. The License provides that the Licensee has a right to conduct the Race Event on the dates approved by the City pursuant to Section 33 of the License. Section 33 of the License contains a restriction on the periods of time of the year in which a Race Event, race -associated event, race -supported event and any set-up or take -down periods may be conducted which dates correlate to peak certain retail sales periods of the Bayside Specialty Center. The parties agree that if the authority which sanctions the Race Event were to require Licensee to conduct the Race Event only within the prohibited dates referenced in Section 33 of the License, Licensee shall in good faith negotiate with the sanctioning authority to have the date of the Race Event changed to a date permitted under Section 33. Should Licensee be unsuccessful in such negotiations, the City, Licensee and Bayside shall in good faith negotiate if and in what manner the Race Event may be conducted during the prohibited dates without adversely affecting the ability of the Bayside Specialty Center to operate normally in these peak retail sales periods. Whenever any of the consents or approvals of the City are required under Sections 4 and 33 of the License and the consent or approval relates to an activity of the Licensee or its employees, agents, concessionaires or invitees (a) within the Leased Property, or (b) within miamarina or (c) within -4- ?ra.c= (i) that portion of Bayfront Park (including, without limitation, the proposed baywalk) immediately south of the Leased Property and north of an imaginary line running east and west along the southernmost edge of the proposed pedestrian walk linking -Biscayne Boulevard and the Pepper Fountain to Biscayne Bay to be known as the Flagler Promenade as more particularly shown on Exhibit ./� hereto, (ii) the vehicular access area to, across and through Port Boulevard, Biscayne Boulevard (from Chopin Plaza to I-395 interchanges) and from 4th Street to the Leased Property and Parking Garage and (iii) the sidewalks along both sides of Biscayne Boulevard, between and including the south sidewalk ofLFla2ler Street to the north side of Port Boulevard and to, and along both sidewalks of 4th Street from the People Mover Station to and 4: across Biscayne Boulevard to the Leased Property and Parking Garage ("Bayside A Approval Area"), the City shall not give its consent or approval without first obtaining Bayside's prior written consent or approval, which shall not be unreasonably withheld. Any consent or approval given by the City without Bayside's consent or approval as provided for in this Section 2 shall be ineffective. Section 3. Race Course. 3.1. The parties recognize that a portion of Bayfront Park may be under construction during future years. The Leased Property and a portion of Bayfront Park are scheduled to be under construction during a period commencing on or about March 15, 1985 and ending upon completion of construction of the Bayside Specialty Center and Parking Garage which are scheduled to be completed approximately two (2) years later subject to the terms of the Retail Lease and Parking Garage Lease. The construction shall include, but not be limited to, the demolition of the Bayside Auditorium, construction of the Bayside Specialty - 5 - RM Center and Parking Garage, and relocation of roadways and utilities. 3.2. 1985 Race Course. With regard to the 1983 race, which is scheduled to occur on February 23rd and 24th, the Licensee shall use only those portions of Bayfront Park, the Leased Property, and the FEC Tract shown on the Site Plan attached to the License as Exhibit C for the race circuit, staging areas, and concession areas which are consistent with the areas used for the 1983 and 1984 Race Events. The Bayside Auditorium shall not be demolished until on or after March 15, 1985. All operations, jersey barriers, fencing, grandstands and other improvements, fixtures and equipment of the Licensee and its concessionaires shall be removed from the Leased Property and all barriers, fencing or any other obstruction shall be removed from the east side of Biscayne Boulevard between N.E. 4th Street and N.E. 5th Street, Port Boulevard, Miamarina Parkway or other access roads to the Leased Property by no later than 7 a.m. on March 15, 1985. The balance of the operations, jersey barriers, fencing, grandstands and other improvements, fixtures and equipment of the Licensee and its concessionaires shall be removed by 7 a.m. March 31, 1985. 3.3. 1986 or 1987 Race Course. With regard to the staging of the Race Event in 1986 and each year thereafter until this Agreement terminates, the Licensee shall use those portions of the Bayfront Park, the Leased Property, and FEC Tract shown on Exhibit B attached hereto and made a part hereof for the race circuit, staging areas and concessionaire areas. It is the intent of the parties that the Licensee be able to conduct the Race Event in 1986 and 1987. The parties recognize that, at the time of the 1986 or 1987 Race Events, Bayside Specialty Center, the Parking Garage, and related site improvements on the Leased Property and on the balance of Bayside Park (including, but not limited to, utilities and service roads) will be under - 6- construction. Bayside agrees that the construction of the entrance and service roads within the Leased Property and a portion of Bayfront Park (but excluding the baywalk to be located over the property to be filled by the U.S. Corps of Engineers) for which Bayside is responsible and which form part of the race course are a first priority for Bayside to complete in time for the 1986 or 1987 Race Events and Bayside agrees to make reasonable efforts to complete such roadways in time for the 1986 or 1987 Race Events (including the necessary cure period for road materials). Should it become apparent to the parties that such roadways may not be completed in time for the 1986 Race Event, and the baywalk to be constructed over property to filled by the U.S. Corps of Engineers is completed and available for use as part of the race I` 43 course, the City shall so notify Bayside and the City agrees that it will exert its best efforts to complete such roadways or cause them to be completed in time for the 1986 Race Event unless the City elects to exercise the option set forth in paragraph I of the Amendment. In the event the City completes such roadways or causes them to be completed in time for the 1986 Race Event, Bayside shall pay the City the amount Bayside would have had to pay its contractor or subcontractors to complete such road -lays- uising reasonable efforts and the City shall be responsible for the additional cost ir;curred to complete the roadways. The City's completion of such roadways shall be in accordance with Bayside's plans and specifications. Notwithstand.Ing the foregoing, Bayside and the City make no representations or warranties as to the condition of this entryway or any other roadway within the racing course or their sufficiency for use as a race course. Bayside and the City agree to submit construction drawings for any roadway comprising the race course shown on Exhibit B for Licensee's review and comment. Bayside agrees that if such roads are completed and form a part of the race course that Bayside shall remove or relocate any construction - 7 - materials, equipment and debris from such roads and the set-up areas in accordance with a schedule reasonably acceptable to Licensee which will enable Licensee to set-up for the Race Event, and to remove all of Bayside's materials, equipment and debris from any areas outside the construction fences not later than 6 p.m. on the Thursday night before the Race Event. Bayside agrees to make diligent efforts to place the construction site in as good of an appearance as practicable for the Race Event. Notwithstanding the foregoing, Bayside shall not have any obligation with respect to such roads for the 1986 Race Event unless the City shall make similar efforts to complete its construction obligations under the Retail Lease and Parking Garage Lease in Bayfront Park (including but not limited to, the construction of the baywalk) which are necessary to permit the Race Event to be run on the course shown on Exhibit B. Except for the obligations contained in this Section 3.3, neither Bayside nor the City shall have any obligation or be deemed to make any representations as to the condition of the Bayside Specialty Center, the Parking Garage, or the site improvements at the time of the 1986 Race Event. Bayside shall permit Licensee to use the Parking Garage for the 1986 Race Event at no cost to Licensee (except for utility costs which are Licensee's responsibility to pay) in its then -current, "as is" condition and shall cease its construction activities within the Parking Garage for the three (3) consecutive days preceding the Race Event and for the Race Event. The Parking Garage shall be delivered to Licensee generally free of dust, dirt, debris and construction materials and in a generally clean condition. On or about six (6) months prior to the proposed Race Event for 1986 the parties hereto shall meet to discuss the status of the improvements under construction. The parties agree that except for the Parking Garage, the construction sites shall not be available for use by Licensee for the Race Event. - 8 - 3.4. Future Construction. Should any other future construction activity of the City or Bayside potentially interfere with the staging of any Race Event pursuant to this Agreement, the party conducting the construction shall coordinate that staging of its construction with the Licensee to enable _ Licensee to stage the Race Event on the approved date and on the race course shown on Exhibit�B hereto. AShould any future construction activity of Dade County or any person or entity other than the City or Bayside interefere with the staging of the Racing Event the Licensee shall submit a proposal for relocation of the racing circuits, pit areas, grandstands, concession areas, facilities and other structures or improvements to the City Manager and Bayside for review and for their separate approvals not less than ninety (90) days before the scheduled date of the Race Event. Such relocation shall be at no cost to Bayside. The City Manager and Bayside shall each have seven (7) days in which to approve or disapprove the proposal, which approval shall not be unreasonably withheld -by Bayside. Section 4. Use of the Leased Property After. Completion of the Bayside Specialty Center. 4.1. Cooperation. The parties acknowledge that Bayside and the City have certain rights and obligations related to the operations on the Leased Property. Bayside agrees to cooperate with the Licensee in the staging of the Race Event on the Leased Property and Licensee agrees that Licensee will cooperate so that the staging of the Race Event shall not adversely affect the use and enjoyment of the improvements located on the Leased Property by Bayside, its tenants, contractors, employees or invitees. At the request of any party, before each Race Event, the parties shall meet to discuss - 9 - reasonable adjustments in the location and scheduling of the Race Event, and setup and take -down activities. 4.2. Bayside's Obligation. During the Race Event, Bayside agrees to cause the following to occur: (a) In the manner permitted by law, Bayside will close the Bayside Specialty Center to the general public during the two (2) days of the Race Event. Except as otherwise provided as to Areas A-4 and Areas A-5 under subparagraph (e) of this Section 4.19 Bayside Specialty Center shall be open for business to users of the marina and patrons of the Race Event. (b) Bayside shall remove any temporary planting structures from the race course roadway in accordance with the approved schedule. (c) Provided (i) Licensee pays the Parking Garage Fee and Storage Fee (as hereinafter defined) and (ii) provided that the closing of the Parking Garage does not violate the tax-exempt status of any bonds issued to finance construction of the Parking Garage and that the closing of the Parking Garage is acceptable to the bond holders, Bayside shall close the Parking Garage to the general public for a five (5) day period annually including the two (2) days of the Race Event and shall permit Licensee to use not more than one-half of the parking area on one floor for one day before and one day after the five (5) day period for the set-up of a race control center and for storage of communication equipment ("Press Area"). The Press Area shall be so located as to permit the normal flow of traffic in and uut of the Parking Garage. Licensee shall pay Bayside an amount equal to the gross revenues that would otherwise be generated for the parking spaces located in the Press Area during Licensee's use of the Press Area the day prior to and the day after the Race Event ("Storage Fee"). Licensee shall be permitted to use the Parking Garage - 10 - for the storage and display of race cars and for promotional activities related to the Race Event for a five (5) consecutive day period each year (which includes the Race Event), the precise days and hours to be worked out between parties in good faith. Licensee shall pay Bayside Five Thousand Dollars ($50000) ("Parking Garage Fee") each year for the five (5) day use of the Parking Garage during the first five (5) years that the Parking Garage shall be open for business. Thereafter the Parking Garage Fee shall be an amount sufficient to pay the debt service on the loans used to finance the Parking Garage for the days, or portions thereof, that Licensee will be using the Parking Garage, or any portion thereof. The Storage Fee shall not be adjusted. The Parking Garage Fee and Storage Fee shall be paid to Bayside's parking garage manager on the date and at the time of delivery of the Press Area in accordance with this Agreement. Licensee shall be responsible for the payment of all utility costs connected with its use of the Parking Garage. At the time of closing on the issuance and sale of any tax-exempt bonds, the proceeds of which would be used to finance the construction of the Parking Garage, the City agrees that it will obtain an opinion from its bond counsel, reasonably satisfactory to Licensee and Bayside, that the use of the Parking Garage by Licensee as provided for in this Agreement does not violate the tax-exempt status of such bonds. Should bond counsel be unable to issue such opinion, the parties hereto will in good faith negotiate such modifications to this Agreement as are necessary to permit the issuance of the opinion by bond counsel and to provide Licensee with a facility for use in storing race cars and staging promotional events related to the Race Event. (d)A After Bayside Specialty Center is open, the fence to be erected by Licensee shall be erected on the park side of the Bayside Specialty Center - 11 - and the fencing shall be installed in locations and in a manner reasonably acceptable to Bayside. The Licensee shall be responsible for monitoring access to and Prom Bayside Specialty Center by patrons of the Race Event. No structures of any kind, except for signs and visual barriers may be erected or installed in the area designated as "No Structures Area" or Exhibit 8 without Bayside's prior written approval and any signs or barriers within such area or anywhere else on the Leased Property shall be subject to Bayside's prior written approval as to location, design and schedule for set-up and take -down, which approvals shall not be unreasonably withheld. ON Notwithstanding any other provision to the contrary in this Agreement, should the Licensee fail to draw more than 12,000 attendance per day of the Race Event in any two (2) consecutive years subject to unavoidable delays under Section 7.4, Bayside shall no longer be obligated to close the Bayside Specialty Center to the general public during the Race Event and Licensee shall provide free pedestrian access to and from the Bayside Specialty Center at locations reasonably acceptable to Bayside. The attendance shall be based upon a reported daily ticket sales attendance and non -paid attendance made by Licensee in writing to the City and Bayside within thirty (30) days of the Race Event. The City shall have a reasonable right to audit or inspect Licensee's records to verify the attendance figures in accordance with the audit and inspection provisions contained in the License, and if requested by Bayside, the City shall conduct such an audit or inspection. (e) The parties acknowledge that pursuant to Section 2.1(a) of the Retail Lease, Bayside has a right to construct a restaurant on a portion of the Leased Property known and designated in the Relail Lease as "Area A-4" - 12 - and/or operate and use the light tower to be constructed on that portion • of the Leased Property designated in the Retail Lease as "Area A-5". Bayside agrees that should it exercise either option that W the retail space of Area A-5 shall be closed to the general public during the Race Event. (ii) the restaurant located on Area A-4 shall be closed to the general public during the Race Event unless the Licensee by written notice to Bayside and Bayside's tenant operating the restaurant, which notice should be given no later than thirty (30) days before the Race Event, 00�, shall elect to reserve the restaurant for use during the Race Event. Bayside shall provide in its lease agreement with the tenant of Area A-4 that the tenant shall not charge the Licensee a fee for use of the restaurant during the Race Event greater than that which is necessary to ensure the tenant gross receipts for the two days of the Race Event equal to the gross receipts the tenant receives on its most profitable day of the year (exclusive of reimbursement and reasonable overhead and profit for special services which the tenant does not ordinarily provide its customers). Should the Licensee reserve the restaurant for a period of time beyond its normal business hours, the maximum amount the tenant may charge shall be adjusted accordingly. The specific details of use, operation, entertainment and other matters shall be the responsiblity of the Licensee to negotiate with the tenant. Until the tenant and Licensee shall enter into an agreement relating to the use of the restaurant during the Race Event, neither party shall be legally bound to the other, it being the intent of the parties to this Agreement to agree only upon a standard for the maximum amount that Licensee should be charged for the use of the restaurant on Area A-5. - 13 - 4.3. Licensee's obligations. Licensee agrees that in addition to its other obigations under the License and this Agreement that Licensee shall at its expense do the following: (a) Licensee shall commence the set-up for the Race Event in the areas shown on Exhibit 8 and in the time periods described in Exhibit C. Except as otherwise expressly provided in this Section 4, Licensee shall complete the take -down of all Race Fixtures (as hereinafter defined) in the areas shown on Exhibit B within the respective time periods described in Exhibit C, or in accordance with such other schedule as may be approved by the N, parties in writing. (b) Vehicular access for service vehicles shall be available to Bayside and to the tenants of the Bayside Specialty Center up to 11:59 p.m. on the Friday immediately prior to the Race Event and shall be restored no later than 7 a.m. on the Monday following the Race Event. The route for such service vehicles shall be worked out in advance and shall be reasonably acceptable to Bayside. (c) Licensee shall provide (i) vehicular access for emergency vehicles to the Bayside Specialty Center and the Parking Garage, and (ii) pedestrian access for employees of Bayside, its tenants and agents without requiring the employees to purchase tickets or pay any other fee or charge throughout the Race Event, any race -supported event or race -associated event and any set-up and the take -down periods of each. Two (2) weeks prior to the Race Event, Bayside shall provide Licensee with a list of Bayside's employees and its tenants and agent's employees who anticipate working at Bayside Specialty Center during the Race Event. Licensees shall have a right to compare this list of employees with a prior list, if available, or to require - 14 - the list be verified in any other reasonable manner to ensure that the individuals named on the list are bonafide employees at Bayside Special Center. In addition, Bayside shall permit Licensee to place a ticket kiosk = llwithin the Leased Property by the entrance gate to the Race Event during the two days of the Race Event in a location selected by Bayside acting reasonably after consultation with Licensee. The design, construction, installation and removal of the kiosk shall be subject to Bayside's approval, which shall not be unreasonably withheld. (d) Licensee shall at its own expense promptly remove or cause to be Ok removed all grandstands, barriers, fencing, bleachers, fixtures, safety devices and any other equipment, apparatus and improvements of Licensee, its invitees and concessionaires ("Race Fixtures") utilized with regard to any event to which the License applies which removal shall be consistent with the Schedule in Exhibit C. Licensee shall at its own expense promptly restore or cause to be restored all park area, streets, facilities and other improvements (including, without limitation, the Parking Garage) used by the Licensee, its concessionaires, employees, contractors and invitees to the condition such park area, streets, facilities and other improvements were in prior to the set-up period for the Race Event. Such removal and restoration shall be more particularly detailed in the schedule referred to in Section 33 of the License. (e) Pedestrian and vehicular access to and from the Bayside Specialty Center and Parking Garage to public streets shall be available no later than 7 a.m. on the Monday morning immediately following the Race Event. Except for the Press Area, all Racing Fixtures shall be removed from the Parking Garage by 9 a.m. on the Monday morning immediately following the Race Event. Any restoration of the Parking Garage shall be performed as - 15 - expeditiously as possible and in a manner and at such times as would least interfere with the use of the Parking Garage but in no event shall it be completed later than 7 a.m. on the Friday morning following the Race Event. (f) On the earlier to occur of the expiration of this Agreement or the License, the Licensee shall, to Bayside's and the City's satisfaction, restore all park area, streets, facilities and other improvements within the = Bayside Approval Area to their original condition, insofar as possible. (g) Licensee/;shall cause the Bayside Specialty Center to be reasonably accessible by land to patrons of the Race Event, users of theAY marina, service vehicles and suppliers of Ba side's tenants and Ba side's personnel and tenant 4.4. City Orations. The City agrees that in addition to its other obligations under the License that the City shall at its expense do the following: (a) The City, at its cost and expense shall remove or caused to be " removed any removeable decorative tile comprising the surface of the circular entryway to Bayside Specialty Center from Biscayne Boulevard in accordance with the plans and specifications prepared by Bayside, and the City shall make whatever adjustments of the road surface as are necessary to ensure an even grade, it being the intent of the City and Bayside that the entryway itself shall be constructed to permit the Race Event to occur.lIt-(i 0.c�- *1, PS 7 (b) Commencing on Monday following the Race Event, the City shall promptly replace or restore the entryway or shall cause it to be replaced or restored to its condition prior to the Race Event in accordance with the original plans and specifications or any modifications thereto which are - 16 - prepared by Bayside and to complete the same no later than thirty (30) days after the Race Event. (c) Promptly after the Race Event, the City shall remove all tire tracks from road surfaces and sidewalks. Section 5. Failure to Perform Selma. 5.1. Self -Help. If Licensee at any time during the term of this Agreement, or any extensions thereof shall fail to perform any of its obligations under this Agreement, the City shall undertake any of Licensee's obligations which Licensee has failed to perform, provided that two (2) days 0 E- prior written notice is given to Licensee. If the City at any time during the term of this Agreement or any extension thereof shall fail to perform any of its obligations under this Agreement including, without limitation, the obligation to pert orm on behalf of Licensee, Bayside shall have the right to undertake any or all of the City's obligations provided that two (2) days prior written notice is given to the City. If Bayside at any time during the term of this Agreement shall fail to remove the construction debris materials and equipment as provided for in Section 3.3 of this Agreement or to remove the temporary planting structures as provided for under Section 4.2 of this Agreement, the City and Licensee shall each have the right to undertake this obligation of Bayside provided that two (2) days prior written notice is given to Bayside. Notwithstanding the foregoing, if any failures to perform referred to in this Section 5.1 refers to the failure to perform obligations that would impede Licensee's ability to perform in accordance with the time periods provided herein or in the approved schedule, or are obligations relating to providing unobstructed pedestrian or vehicular access, or should an emergency situation exist such that it is not practicable in the foregoing - 17 - circumstances for two (2) days prior written notice to be given, then the party exercising its self-help rights shall give written notice as soon as - practicable considering the circumstances. 5.2. Obligation of Defaulting Party. Upon the exercise of this right of self-help as granted under this Section 5, the acting party shall be entitled to full reimbursement from the defaulting party of the cost of - performing the defaulting party's obligations with interest at a rate of two percent (2%) per annun above the rate charged by CitiBank N.A. of New York to its best commercial customers generally referred to as its prime rate Os ("Default Rate"). Notwithstanding the foregoing, if the Licensee is the defaulting party, the Licensee and not the City shall be the party obligated to reimburse Bayside and the City shall not be considered a defaultting party. The right of self-help shall be cumulative and not in limitation of other rights and remedies of the acting party nor shall such right, if exercised, be deemed to be an election of remedies which is exclusive of any other remedies. Section 6. Indemnification and Insurance. 6.1. Bayside s Right to Inspect. Bayside shall have a right at all reasonable times to inspect set-up and take -down operations of the Licensee and its use of the Parking Garage, so long as the inspection does not interfere with the Race Event. Bayside's right to inspect shall be limited to those operations located within or affecting the Bayside Approval Area. 6.2. Indemnification. Notwithstanding any policy or policies of insurance required of Licensee, Licensee shall indemnify and save harmless Bayside from and against any and all actions, claims or demands, suits at law, in equity or before administrative tribunals, due to the negligent or intentional acts or omissions of Licensee, its agents, servants, employees, - 18 - i contractors or invitees arising out of the use or occupancy of the Leased Property or Bayside Approval Area by such persons. Licensee shall defend any and all such actions, claims, demands or suits on behalf of Bayside at Licensee's sole cost and expense. Notwithstanding any policy or policies of insurance required of Bayside, Bayside shall indemnify and save harmless Licensee from and against any and all claims or demands, suits at law, in y equity or before administrative tribunals, due to the -negligent or intentional acts or ommissions of Bayside, its agents, servants Y , 9 , ,employees - or contractors arising out of the use or occupancy of the Leased Property or Bayside Approval ..' Area by such persons. Bayside shall defend any and all such action, claims, demands or suits on behalf of Licensee at Bayside s sole cost and expense. The City shall indemnify and save harmless Bayside from and against any and all claims or demands, suits at law, in equity or before administrative :..:: tribunals, due to the negligent or intentional acts or ommissions of the City, its agents, servants, employees or contractors arising out of the conducting of the construction and restoration obligations of the City under this Agreement or the License by such persons. OTI 6.3. Licensee's Insurance. In addition to the requirements of the License relating to insurance, Licensee shall obtain and keep in force at all times during the staging of any Race Event, race -supported event or race -associated event, including all set-up and take -down periods, policies of public liability, property damage insurance, products and complete operators' insurance in form and in amounts acceptable to and from an issuer acceptable to Bayside, protecting Bayside, its agents, employees, contractors and invitees against any liability due to death, injury, loss or damage to persons or property arising out of or in any way incidental to Licensee's operations. -19- �`^ii,^, Such policies shall name Bayside, its contractors, subcontractors' agents, tenants and employees as additional insured and shall be endorsed to be primary, noncontributory, and not in excess of any other insurance. standard for such insurance shall be that which would be carried by a reasonably prudent operator of similar events taking into consideration the close proximity of the Bayside Specialty Center and the use of the Parking Garage. Bayside shall provide Licensee with a list of such individuals or entities not less than ninety (90) days prior to any Race Event, E_ race -supported event or race -associated event, and Bayside shall be permitted Nil, to update the list two days prior to such events. The policies shall also be endorsed to state that the additional named insureds are not responsible for the payment of any premiums. 6.4. Certificates of Insurance. Copies of certificates evidencing such insurance coverage shall be delivered to Bayside thirty (30) days before the 1985 Race Event, and such certificates shall provide that such insurance coverage will not be cancelled, reduced, modified or amended without at least thirty (30) days' prior written notice to Bayside. At least thirty (30) days prior to the expiration of any such policy, a certificate showing that such insurance coverage has been renewed shall be filed with Bayside. Bayside has the right to review the sufficiency of the insurance policy, as required by this Agreement and to request Licensee to change the insurance coverage to be provided in any policy of insurance as provided for herein to that which would be carried by a reasonably prudent operator of the Race Event, race -supported event or race -associated event taking into consideration the close proximity of the Bayside Specialty Center and the use of the Parking Garage. Licensee - 20 - shall, upon receipt of such request, change the coverage or increase the limits of such insurance to any amount satisfactory to Bayside. 6.5. Bayside's Insurance. Bayside agrees to name Licensee as an additional insured on its public liability insurance policies which are required under the Retail Lease and Parking Garage Lease and to provide Licensee with a copy of certificates evidencing such insurance coverage thirty (30) days prior to the date of the 1986 Race Event. Section 7. Defaults. 7.1. Event of Licensee's Default. (a) Failure of Licensee to perform its obligations under this Agreement within the time periods specified herein or in the approved schedule after notice thereof in writing from the City or Bayside (which notice shall specify the respects in which it is contended that Licensee has failed to perform), unless such default was not caused or created by Licensee and cannot be cured within the time periods specified herein or in the approved schedule and Licensee has commenced and thereafter has contined diligently to prosecute all actions necessary to cure such default, said failure shall constitute an "Event of Licensee's Default". (b) If any Event of Licensee's Default shall occur, the City or Bayside may in addition to their rights under Section 5 of this Agreement, at their options, institute such proceedings at either of them in their individual opinion deem necessary to cure defaults or to compensate them for damages resulting from such default. (c) In addition to the rights contained in (a) and (b) above, if in any three (3) consecutive years following the opening of the Bayside Specialty Center, Licensee shall commit a material default of its obligations under this - 21 - JIM Agreement or the License (unless such default shall be due to unavoidable delays as provided for in Section 7.00 then, in addition to any other remedies which Bayside may have under this Agreement, Bayside may terminate Licensee's right to use the Leased Property and the improvements thereon (including, without limitation, the Parking Garage) upon thirty (30) days written notice to Licensee. Thereafter the race course must be changed and no activity of Licensee may be conducted on the Leased Property; provided, however, if Licensee operates the Race Event pursuant to this Agreement and iF- the License for three (3) consecutive years following the termination of use 00-1 by Bayside without committing a material default of its obligations under this Agreement or the License, then Licensee, at its option which shall be exercised by giving Bayside and City ninety (90) days prior written notice, shall have the right to resume use of the Leased Property and the race course shown on Exhibit B in accordance with this Agreement and the License as if the material default giving rise to the termination had not occurred. The resumption of the use of the Leased Property shall not limit Bayside's rights and remedies under this subsection (c) in the future. (d) Licensee shall be liable to Bayside for any loss or damage or business interruption incurred by Bayside, its tenants, subtenants, licensees, contractors or agents as a result of any utility service interruptions connected with the Race Event, race -supported event or race -associated event (which utilities shall include but not be limited to, gas, electricity, telephone, storm sewer, sanitary sewer, water and cable television) or as a result of any failure of the Licensee to perform its obligations under this Agreement or the License. Bayside agrees to insert a covenant in its lease or other occupancy agreements with its tenants and licensees using Leased - 22 - Property that the tenant and licensee acknowledge that the Bayside Specialty Center shall be closed to the general public during the Race Event and that the tenant and licensee agree not to sue Licensee for any loss of business as a result of such closure or as a result of any set-up or take -down activities performed in accordance with this Agreement. 7.2. Event of Bayside's Default. (a) Failure of Bayside to perform =_ its obligations within the time periods specified herein or in the approved schedule after notice thereof in writing from the City orA Licensee (which notice shall specify the respects in which it is contended that Bayside has r failed to perform) unless such default was not caused or created by Bayside and cannot be cured within the time periods specified herein or in the approved schedule and Bayside has commenced and thereafter has continued diligently to prosecute all actions necessary to cure such actions necessary •of to cure such default, said failure shall constitute and "Event Bayside's Def ault" . (b) If an Event of Bayside's Default shall occur, the City or Licensee may in addition to their rights under Section 5 of this Agreement, at M their options, institute such proceedings as either the City or Licensee may deem necessary to cure such defaults or to compensate them for damages resulting from such defaults. 7.3. Event of City's Default. (aa)Failure of the City to perform its obligations under this Agreement within the time periods specified herein or in the approved schedule after notice thereof in writing from the Bayside or Licensee (which notice shall specify the respects in which it is contended that the City has failed to perform) unless such default was not caused or created by the City and cannot be cured within the time periods specified - 23 - herein or in the approved schedule and the City has commenced and thereafter has continued diligently to prosecute all actions necessary to cure such actions necessary to cure such default, said failure shall constitute an "Event of City's Default". (b) If an Event of City's Default shall occur, Bayside or Licensee may in addition to their rights under Section 5 of this Agreement, at their options, institute such proceedings as either Bayside or Licensee may deem necessary to cure such defaults or to compensate them for damages resulting from such defaults. Section 7.4. Unavoidable Delay. For the purpose of any of the provisions of this Agreement, neither the City (including the City Manager), Licensee nor Bayside, as the case may be, nor any successor in interest, shall be considered in breach of or ' in default in any of its obligations under this Agreement, in the event of unavoidable delay in the performance of such obligations due to strikes, lockouts, acts of God, inability to obtain labor or materials due to governmental restrictions, enemy action, civil commotion, fire, unavoidable casualty or other similar causes beyond the reasonable control of a party (not includin g such party's insolvency of financial condition), it being the purpose and intent of this paragraph that in the event of the occurrence of any such unavoidable delays the time or times for the performance of the covenants, provisions and agreements of this Agreement shall be extended for the period of unavoidable delay; provided, however, that the party seeking the benefit of the provisions of this section shall, as soon as practicable but in no event later than five (5) days after such party shall have become aware of such unavoidable delay, give notice to the other parties thereof in writing of the cause or causes thereof and the time delayed. -24- herein or in the approved schedule and the City has commenced and thereafter has continued diligently to prosecute all actions necessary to cure such actions necessary to cure such default, said failure shall constitute an "Event of City's Default". _ (b) If an Event of City's Default shall occur, Bayside or Licensee may in addition to their rights under Section 5 of this Agreement, at their options, institute such proceedings as either Bayside or Licensee may deem necessary to cure such defaults or to compensate them for damages resulting from such defaults. Section 7.4. Unavoidable Delay. For the purpose of any of the provisions of this Agreement, neither the City (including the City Manager), Licensee nor Bayside, as the case may be, nor any successor in interest, shall be considered in breach of or'in default in any of its obligations under this Agreement, in the event of unavoidable delay in the performance of such obligations due to strikes, lockouts, acts of God, inability to obtain labor or materials due to governmental restrictions, enemy action, civil commotion, fire, unavoidable casualty or other similar causes beyond the reasonable control of a party (not including such party's insolvency of financial condition), it being the purpose and intent of this paragraph that in the event of the occurrence of any such unavoidable delays the time or times for the performance of the covenants, provisions and agreements of this Agreement shall be extended for the period of unavoidable delay; provided, however, that the party seeking the benefit of the provisions of this section shall, as soon as practicable but in no event later than five (5) days after such party shall have become aware of such unavoidable delay, give notice to the other parties thereof in writing of the cause or causes thereof and the time delayed. - 24 - Section 8. Notices. Any notice, demand, consent, approval, request or other communication or document to be provided hereunder to a party hereto =A shall be (a) given in writing to the party with a copy to the other party, and E= (b) deemed to have been delivered or received by the party to whom it is to be provided on the date postmarked after being sent certified or registered mail in the United States mails, postage pre -paid, return receipt requested, to the address of such party set forth hereinabove or to such other address in the United States of America as such party may designate Prom time to time by notice to the other, or (ii) deemed to have been delivered and received (if such party receipt thereof is acknowledged in writing) on the date actually hand delivered to such party if hand delivered. Section 9. Term of this Agreement. This Agreement shall continue in full force and effect until the earliest to occur of (i) termination of the _ License, (ii) written agreement of the parties, or (iii) termination of both >e- K the Retail Lease and the Parking Garage Lease unless a new lease is entered into in accordance with Sections 6.1 and 6.2 of the Retail Lease or Sections 6.1 and 6.2 of the Parking Garage Lease. C 4 Section 10. Estoppel Certificate. 10.1. Form. Each party hereto shall, at any time and from time to time within thirty (30) days after being requested to do so by the other party in writing, execute, enseal and acknowledge, and address and deliver to the requesting party, a certificate in recordable form, certifying (a) that this Agreement is unmodified and in full force and effect (or, if there has been any modification thereof, that it is in full force and effect as so modified, stating therein the nature of such modification); (b) as to whether, to the best of such party's knowledge, information and belief, the requesting party - 25 - - '. �� '-S �' �M - .. J•a... .� J,�yh 'ham?�..� � .?: '�:� a`�V�L'��`tr�As.. e� '�.aKP. 4�.. 14 pt�':�:�•. .:ti r~`.: r.; .ry �';-' ��rY is then in default in performing any of its obligations hereunder (and, if so,_ specifying the nature of each such default); and (c) as to any other fact or condition reasonably requested by the requesting party. 10.2. Right to Rely. The parties acknowledge and agree that any statement contained in such certificate may be relied upon by the requesting = party and any such other addressee. Section 11. Amendments and Modifications to the License. The City agrees_ that the License shall not be amended or modified in any way which would adversely affect Bayside's rights under this Agreement, the Retail Lease or Ira -- the Parking Garage Lease without Bayside's prior written consent in each instance, it being the purpose and intent of the parties that Bayside be a third party beneficiary of the obligations of the Licensee and the City under the License. In order that Bayside may determine if an amendment or modification would adversely impact Bayside's rights, the City agrees to submit any proposed amendment or modification to Bayside for its information not less than twenty (20) days before its execution. If any modifications to the proposed amendment or modification are made after submission to Bayside, the proposed changes shall be promptly submitted to Bayside. In no event shall any amendment or modification be executed unless Bayside has had at least ten (10) days to review its final form. Section 12. Effective Date of Retail Lease and Parking Garage. The parties acknowledge that the Retail Lease and the Parking Garage Lease contain a provision that these documents are not effective until all exhibits thereto are fully executed and delivered by the City and Bayside. The City, Licensee and Bayside agree that, notwithstanding the fact that all of the exhibits may not have been executed and delivered as of the date of this Agreement, the . - 26 - Retail Lease and Parking Garage Lease shall be deemed to be in full force and effect for the purpose of this Agreement. Section 13. General. 13.1. Effectiveness. This Agreement shall become effective on and only on its execution and delivery by each party hereto. 13.2. Purpose of Agreement. This Agreement is intended to supplement the License. In the event of a conflict between the terms and conditions of the License and this Agreement, this Agreement shall control. 13.3. Amendment. This Agreement may be amended by and only by an instrument executed and delivered by each party hereto. 13.4. Waiver. No party hereto shall be deemed to have waived the exercise of any right which it holds hereunder unless such waiver is made expressly and in writing (and, without limiting the generality of the foregoing, no delay or omission by any party hereto in exercising any such right shall be deemed a waiver of its future exercise). No such waiver made in any instance involving the exercise of any such right shall be deemed a waiver as to any other such instance, or any other such right. 13.5. Applicable law. This Agreement shall be given effect and :r construed by application of the law of Florida. 13.6. Time of essence. Time shall be of the essence of this Agreement. 13.7. Exhibits. Each writing or plat referred to herein as being attached hereto as an exhibit or otherwise designated herein as an exhibit hereto is hereby made a part hereof. 13.8. Severability. No determination by any court, governmental or administrative body or agency or otherwise that any provision of this Agreement or any amendment hereof is invalid or unenforceable in any instance shall affect the validity or enforceability of (a) any other provision - 27 - thereof, or (b) such provision in any circumstance not controlled by such determination. Each such provision shall remain valid and enforceable to the fullest estent allowed by, and shall be construed wherever possible as being consistent with, applicable law. 13.9. Disclaimer of partnership status. Nothing in the provisions of this Agreement shall be deemed in any way to create between the parties hereto any relationship of partnership, joint venture or association, and the parties hereto hereby disclaim the existence of any such relationship. 13.10. Successors and Assigns. The Agreement is binding on the parties and their successors or assigns, and to any successor or assign of Licensee's interest in the License. IN WITNESS WHEREOF, the parties hereto cause this Agreement to be executed by their duly authorized representatives the day and year first above written. SP WITNESS OR ATTEST: MtlionAMI organizedMOTORTII and existing under the laws of Florida By: PresIdent CITY OF MIAMI, FLORIDA, a municipal ATTESTED: corporation of the State of Florida By: y Manager APPROVED AS TO FORM AND CORRECTNESS ityA,Eorney BAYSIDE CENTER LIMITED PARTNERSHIP WITNESS: By: -President Rouse -Miami, Inc., General Partner 1689F/457A -28- SUPPLEMENTAL AGREEMENT by and between CITY OF RIAMI, MIAMI MOTORSPORTS, INC. and BAYSIDE CENTER LIMITED PARTNERSHIP Exhibit A Site Plan of Leased Property W n 0 SUPPLEMENTAL AGREEMENT by and between CITY OF MIAMI, MIAMI MOTORSPORTS, INC. and BAYSIDE CENTER LIMITED PARTNERSHIP Exhibit B Permanent Race Course a . .� \� ®� . . . . . �» +»2. b�«� �� m��� ?� � w� dy.« .��»���f� � «�-�«>� w � 2�®\y�� ,j�. � � /������ �»\\ ... . r» � ,_« ,: °� » &4�� x »».. /\� ..>.� a:«. � «. � w� � � . «�z� «� . v . ■ W LICENSEE'S SET-W AND TAKE -DOWN SCHEDULE PERIOD(S) OF TIME IN WiICH ACTIVITY ACTIVITY IS PERMITTED A. Barriers, cable, signs and loud speakers along the race course AREA 1 Grand Entrance and Biscayne between entrance AREA 2 Grand Prix Service Drive from 900 angle with Baywalk to the Grand AEntrance AREA 3 From Port Blvd. around Parking Garage to Grand Entrance on east side of Biscayne Blvd. AREA 4 Baywalk from fountain to 900 angle with Grand Prix Service Drive AREA 5 Biscayne Blvd. from Flagler Promenade to Grand Entrance AREA 6 Biscayne Blvd. from N.E. 6th Street to N.E. 3rd Street AREA 7 Race course south of Flagler Promenade AREA 8 FEC Tract e. Pit Area Two days prior to Race Event (i.e. Thursday and Friday) Ten days prior to Race Event, but from the," ,tenth through and in- cluding the fourth day prior to the Race Event work must be conducted during the hours that Bayside Specialty Center is closed 10 weekdays prior to 5 week- days prior to the Race Event 2 weeks prior to the Race Event 17 weekdays to 13 weekdays prior to the Race Event / 2 weekdays to 17 weekdays prior to the Race Event to -weeks to 20 weekdays prior to the Race Event (a_weeks to one month prior to the Race Event To be nggotiated with the Department of Off -Street Parking Ibut in no event longer than 3 iweeks prior to the Race Event C. VIP Elevated Boxes 2 weeks prior to Race Event D. Temporary Bridges (1) Over Grand Entrance or Area 2 On the weekend prior to the Race Event (2) Elsewhere 6 weeks to one month prior to Race Event (three week take- down schedule) "- _ :i�� �i`>�yf��t1-'�. �� 'YYS*�.iC ��y. i;�`u.•a...__a `j.�. ,�� r _,'.Y:. I E. Grandstands (1) Adjacent to Areas 1, 2 and 3 (2) Elsewhere F. Scoring and Timing Bridge (1) Over Areas 1, 2, and 3 (2) Elsewhere Two weeks prior to Race Event Either leave up from Orange Bowl parade if Race Event is to occur within 70 days of the parade or set-up 45 days prior to the Race Event (25 day take -down schedule) On the weekend two weekends prior to Race Event 4 weeks to two days prior to the Race Event G. Crowd Control Fence In accordance with Activity A above except as otherwise provided in Agreement H. Big Tents 10 days to 5 days prior to Race Event NOTES: (a) All activities referred to in the above schedule must be conducted in accordance with the requirements for pedestrian and vehicular access contained in the Agreement. (b) Take -down periods for the above activities shall, except as otherwise modified by the terms and provisions of the Agreement, be in accordance with the above set-up schedule unless otherwise indicated above in parentheses. (c) The Pit Area may only be located on Biscayne Blvd. between N.E. ` 1st Street and N.E. 3rd Street. (d) The location of VIP boxes adjacent to Areas 1, 29 3 or 4 shall be subject to Bayside's prior written approval, which shall not be unreasonably withheld. (e) All activities shall be performed starting at the southern end of Area 7 working north and at the northern end of Area 8 working south. 1713F/457A - 2 - AGREEMENT THIS AGREEMENT made and entered into this day of December, 1984 by and between THE CITY OF MtAHI, a Florida -municipal corporation (hereinafter referred to as "City") and THE DEPARTMENT OF OFFS -STREET PARKING OF THE CITY OF MIAMI, a department of the City (hereinafter referred to as "Department"): WHEREAS, the City recognizes that the Department is currently earning approximately $809000 per year in revenues from existing parking meters and monthly packers located at the site of the proposed Bayside Specialty Center Parking Garage, and WHEREAS, the Trustees of the Department's Parking Bonds have a vested interest in the revenues collected from the parking meters and monthly parkers located at such site, and WHEREAS, the parties recognize that the revenue lost as a result of the elimination of the parking meters and monthly parkers by the lease of such site to Bayside Center Limited Partnership ("BCLP") for the construction and operation of the Bayside Specialty Center Parking Garage (the "Parking Garage") must be replaced. NOW. THEREFORE, it is hereby agreed by and between the City and the Department as follows: 1. The City agrees to pay to the Department the sun of $80,000 for each calendar year from the date that such parking meters and monthly parkers are removed from the site of the Bayside Special Center until the termination of that certain Lease to be entered into between the City and BCLP with respect to the Parking Garage (the "Lease"); provided, however, that if such parking meters and monthly parkers are removed on other than the first day of a calendar year, the payment due for such partial year shall be calculated by multiplying $80t000 times a fraction the numerator of which shall be the number of days elapsed from the date of removal ( the "Removal Date") to the last day of such calendar year and the denominator of which shall be 360. 2. It is agreed that payments required to be paid to the Department by the City hereunder shall not commence until the first day of the first month next succeeding the Opening Date (as defined in the Lease). On such date and on the first day of each of the next succeeding 47 months, the City shall pay the Department an amount equal to $6,666.67 plus 1/48th of the amount which should have been paid to the Department for the period commencing on the Removal Date and terminating on the Opening Date had not the Department permitted the payment of such amount to be accrued and amortized over a four year period commencing on the first day of the first month next succeeding the Removal Date. For the period commencing on the first day of the 49th month next succeeding the Opening Date and on the first day of each month thereafter, the City shall pay the Department $69666.67. 3. The City agrees that the Director of the Department or his designated representative shall be a member of the City's coordinating committee with respect to the review of the progress of construction of the Parking Garage pursuant to the Lease. IN WITNESS WHEREOF, the City Commission of Miami has caused this agreement to be signed in its name by Howard V. Gary, the City Manager and duly attested to by Ralph G. Ongie, the City Clerk, and the Department of Off -Street Parking has caused this Agreement to be signed in its name. by Roger M. Carlton, the Executive Director of the Department of Off -Street Parking of the City of Miami and duly attested to by the Secretary of the Department of Off -Street Parking on the day and year first hereinabove written. ATTEST: Ralph G. Ong e, City Clerk ATTEST: Secretary APPROVED AS TO FORM AND CORRECTNESS: 1675F/457A THE CITY OF MIAMI, A MUNICIPAL CORPORA- TION OF THE STATE OF FLORIDA By: Rowar-d V. Gary, Ciq Manager DEPARTMENT OF OFF-STREET PARKING OF THE CITY OF MIAMI By: Director -2- } 0