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HomeMy WebLinkAboutR-84-0585J-84-477 6/4/84 RESOLUTION NO. 84-585 A RESOLUTION AUTHORIZING THE CITY MANAGER TO EXECUTE A LEAST: AGREEMENT, IN SUBSTANTIALLY THE FORM ATTACHED, TOGETHER WITH THE AMEND- MENTS HEREIN, BETWEEN THE CITY OF NIAMI AND BAYSIDE 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 SIXTEEN ACRES ADJACENT TO BISCAYNE BOULEVARD AND MIAMARINA AND A PORTION OF BAYFRONT PARK, UPON THE CONDITION THAT A PARKING GARAGE MANAGEMENT AND CONSTRUCTION AGREEMENT WITH THE DEPART- MENT OF OFF-STREET PARKING AND ADDITIONAL EXHIBITS TO THIS AGREEMENT WILL BE BROUGHT BEFORE THE COMMISSION FOR APPROVAL, AND FURTHER SUBJECT TO THE CONDITION THAT THE TERMS OF THE CONTRACT RESULT IN A FAIR RETURN TO THE CITY BASED ON TWO INDEPENDENT APPRAISALS AND THAT SAID CONTRACT COMPLY WITH REQUIREMENTS FOR COMMERCIAL USE AND MANAGE- MENT OF THE CITY'S WATERFRONT PROPERTY AS SET FORTH IN THE CITY CHARTER; FURTHER, DIRECTING THE CITY MANAGER TO OBTAIN TWO INDEPENDENT APPRAISALS OF SAID CONTRACT. WHEREAS, the City Commission determined in March, 1983, that it is advantageous to the City to develop the City -owned land parcel containing approximately 16 acres located adjacent to Biscayne Boulevard and Miamarina and a portion of Bayfront Park as a unified development project, and authorized the issuance of a request for proposals, selected a certified public accounting firm and appointed members of a review committee; and WHEREAS, the request for proposals for the unified develop- ment project contained evaluation criteria to be used by the certified public accounting firm and the review committee; WHEREAS, two proposals were received by the City in response to the request for proposals on September 19, 1983, the published date for receipt of proposals; and WHEREAS, the certified public accounting firm's report to the City Manager analyzed the proposals based on the financial viability of the proposed development teams and their proposed CITY COMMISSION MEETtU OP REs:,toi;. . _ t 4-53SLI financial strategies, assessed comparatively the short and long-range economic and fiscal returns to the City, assessed the proposers' market analyses and conclusions regarding scale and mix of commercial. and public facilities, evaluated the economic feasibility of the proposed developments, and rendered its written report to the City Manager; and WHEREAS, the review committee received the presentations of the proposers and input from the public, arid, after extensive analysis and discussion of the two proposals, rendered a written report to the City Manager containing an evaluation of each proposal based on the specific evaluation criteria included in the request for proposals; and WHEREAS, the committee adjudged The Rouse Company proposals to be superior; and WHEREAS, the City Manager, taking into consideration the findings of the certified public accounting firm and the evalua- tions of the review committee, recommended the acceptance of The Rouse Coripany proposal for the Bayside Specialty Center; WNLREAS, the City Commission by Resolution IJo. 83-1164 dated December 15, 1983, authorized and directed the City Manager to negotiate a contract with The Rouse Company for planning and design, construction, leasing and management of the Bayside Speciality Center; and WHEREAS, the City Manager has negotiated in good faith with Rouse Miami, Inc. an affiliate of The Rouse Company of Columbia, Maryland on behalf of Bayside Limited Partnerships; and WHEREAS, the City Manager recommends that the City Commis- sion authorize the execution of the proposed Lease Agreement, which agreement provides for the planning and design, construc- tion, leasing and management of the Bayside Specialty Center although simply bearing the title "Lease Agreement", in substan- tially the form attached, upon the condition that a parking garage ncanayewent End construction agreement with tiie department of off-street parking and additional exhibits to this agreement 2 84-585. will be brought before the commission for approval, and further subject to the condition that the terms of the contract result in a fair return to the City based on two independent appraisals and that said contract comply with 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 CITY COMMISSION OF THE CITY OF MIAMI: Section 1. The City Manager is hereby authorized to execute a Lease Agreement, in substantially the form attached, upon Commission approval of all exhibits to the agreement, between the City of Miami and Bayside 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 sixteen acres adjacent to Biscayne Boulevard and Miamarina and a portion of Bayfront Park, subject to the condition that the terms of the contract result in a fair return to the City based on two independent appraisals and comply with the requirements for the commercial use and manage- ment of the City's waterfront property as set forth in the City Charter. Section 2. The City Manager is hereby directed to incorporate the following changes in the Lease Agreement: a. Add the words "according to the then current standards for the industry" in the third paragraph, second line of Page 15 after the words "Waterfront Specialty Center". b. Add the words "for 220 days per year. and 5 days per week" in paragraph (b), second line of page 33, after the words "operate the Project". 94a. C. Delete Section 11.7 (Hon -Compete) on Pages 94 and 3 d. Add the words ", but shall not be limited to:" in the second full paragraph, last line of Page 100 after the words "following focus". e. Add the word "(CAMACOL)." in Paragraph (d) last line of Page 101 after the words "Chamber of Commerce". Section 3. The City Manager is hereby directed to obtain two independent appraisals of the attached lease agreement to determine if the terms produce a fair return to the City. PASSED AND ADOPTED this 24th day of May , 1984. Maurice A. Ferre ATTEST: MAURICE A. FERRE, Mayor RPILPH G. ONGIE City Clerk APPROVED AS TO FORM AND CORRECTNESS: OSE A-PEDROSA City Attorney JGP/wpc/ab/142 84-585 . 4_ Tea 10An/ ClR/CT/GJ 701 AFFIDAVIT UNDER FICTITIOUS NAME STATUTE ST-li'f E; OF FI-0131DA (:U��WX OF D:ADE The undersigned, under oath, says; It is the intention of the undersigned to engage in a business erIP-l-prise under the fictitious name of BAYSIDE SPECIALTY CENTER Imaled at MIAMARINA or 5th Street and Biscayne Boulevard in the city of Miami , Dade County, Florida. CITY Those interested in said enterprise, and the extent of the interest of each, is as follows: Print or type name Interest OF MIAMI By 100% Signature Howard Gar Address City Manag APPROVED AS TO FORM & CORRECTNESS: C Ir /� titAttcirney a cia-Pedrosa Sworn to and subscribed to before me, at day of Cat 19 �Z MIAMI REVIEW AND DAILY RECORD Published Daily except Saturday, Sunday and Legal Holidays Miami, Dade County, Florida. STATE OF FLORIDA COUNTY OF DADE., Before the undersigned authority personalty appeared Fianna Stuver, who on oath Lays that the Is the Assistant to the Publisher of the Miami Review and Daily Record, a daily (axeopt Saturday, Sunday and Legal Holidays) newspaper, pyWlstted at Miami In Dede County, Florida: that the attached copy of advertisoment, tang a Legal Advertisernent of Notice In the mattet of Fictitious Name BAYSIDE SPECIALTY CENTER in#1.......... ...a..X...................... Coert, was published In said newspaper In ft» issuM of Aug 5,12,I9,26, 1983 Atflant twitw save that the said Miami Review and Dally Iboord is a newspaper publi tad at Mtiand In Laid Dada County, Florida, and that the said newspaper has heretofore been continuously published in said Dade County, Florida, each day (aacapt Saturday, Sunday and Legal Mondays) and he* been entered ra sac:and class mart matter at the post off" In Miami in said Dade County, Florida, for a period of one year neat preceding the Ii.10 P,11al atlon of Use sttsbch rd Copy of Wewliasnrenk and sitimit fdrttKrr says that sire ties reltfrr Paid rwr pro"U"d " pwraal, kern V corpwntion any diaowmt. rebate, eomnrlaaiwr rK mfurrd lui tha pu Posa of aeruring INS _ rsdvenlsarswnt tun/ p'u?Wicvt;t,n,ic, taw srda rw.n,pi�/ear,. basrrr w wi aitrit;r� Wades Rea this 83 26thday of/ .:......... Aug ........ kD. is....... A. ,lwrrir frsnco r tviuisa) Putly_ Stair of Ficrwa el Large (SEAL) My Conawasian sxpirti, D". 21, tfit5. j MR 1SD Signature Address . Signature Address . Miami , this y ark' Public, State of Florida at Large rR0 K fATF OF FCO D� My Commission Expireb't,,.�.t ti �Gtv �i� 7LtU �+Lid:�l,I, t�;SU� U'IQ J a i NOTICE UNDER FICTITIOUS NAME LAW NOTICE IS HEREBY GIVEN that the undersigned, desiring to engage in business under the tic- titious name of BAYSIDE SPECIALTY CENTER i at number Sth Street 8 Biscayne Boulevard, in the City of Miami, Florida, intends to register the said name with the Clerk of the Circuit Court of Dade County, Florida. Dated at Miami, Florida, this 4th day of August, 1933. CITY OF MIAMI by: Howard Gary, City Manager Jose Garcia -Pedrosa Attorney for Applicant CITY OF MIAMI ATTORNEY'S OFFICE 169 East Flegler Strerl Suite 1101 Miami, Florida 33131 67"700 515.12•19.26 M83OW531 Ntr.Oa DIC rh QrrlClrl arcoltot am OF CA:r =,rr. r:r* :.A. Mo0ar RI C;B A %1' Y. P iY GLEf;r. C�FLi-, Ct_r;i LEASE AGREEMENT between BAYSIDE LIMITED PARTNERSHIP and CITY OF MIAMI dated p 1984 BAYSIDE SPECIALTY CENTER Graft - 5/23/84 Revised 5/23/84 { TABLE OF CONTENTS 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 c. Renewal Term . . . . . . . . . . . . . . . . . 20 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. Enforceability . . . . . . . . . . . . . . . . 26 Section 2.3. Easements. . 27 a. Existing Easements . . . . . . . . . . . 27 b. Eascment Granted to Developer. . . . . . . . . 27 c. Limitations on Eascmcnts Rights. . . . . . . . 29 d. Duration of Eascmcnts. . . . . . . . . . . . . 31 e. Confirmat.oz.�)! lnstr,mcnts . . . . . . . . . . . 31 Section 2.4. Title of L cascd Property . . . . . . 31 Section 2.5. Rental . . . . .. . . . . . . . . 32 a. Rentals Payable. . . 32 b. Continuous Operation . . . . . . . . . . . . . 33 c. Parking Garage Delay . . . . . . . . . . . 33 d. Payment of Rcntal. . . . . . . . . . . . . . . 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 (i) 84--38'E TABLE OF CONTENTS Section 2.12. Roadways and Utilities . . . . • . . . . . • . . ARTICLE III - CONSTRUCTION OF IMPROVEMENTS Section 3.1. Section 3.2. Section 3.3. Section 3.4. Section 3.5. Section 3.6. Section 3.7. Section 3.8. Section 3.9. Section 3.10. Section 3.11. Section 3.12. Section 3.13. Section 3.14. Section 3.15. Conformity of Plans. . . . • Preliminary Plans. . . . . 0. . Construction Plans . . . . . . . . . . . . . . . . Facilities to be Constructed . . . . . . . . . . . Maintenance of Park Site and Leased Property . . . Access . . . . Construction Period. Progress of Construction . . . . . . . . . . . . . Certificate of Final Completion. . . . . . . . . . Connection of Building to Utilities. . . . . . . . Permits and !approvals. . . . . . . . . . . . . . . Compliance with Laws . . . . . . . . . . . . . . . Extension of Time Requirements . . . . . . . . . . Alterations and Renovations. . . . . . . . . . . . Art in Public Places . . . . . . 0 • . • . . . . . ARTICLE IV - LAND USES Section 4.1. Land lases . . . . . . . . . . . . . . . • . . . . . Section 4.2. Character and Operation of Improvements. . . . . . Section 4.3. Hiiami Grand Prix . . . . . . . . . . . . . . . . . ARTICLE V - 1kNT1--';,E0,J1,.AT10N; A.SSIGNME1JT Section 5.1.. Definitions. . . . . . . . . . . . . . . Section 5.2. Puxposed of Rcstric:io` ns on Transfer . Section 5.3. Transfers. . a . . . e • Section 5,4. Notice of Transfer; eInformation as to Shareholders Section 5.5. Effectuation of Certain Permited Transfers . Section 5.6. Transfers of the City's Interests. . . . . . . . . Section 5.7. Subletting . . . . . . . . . . . . . . . . • . . ARTICLE VI - MORTGAGE FINANCING; RIGHTS OF MORTGAGEE Section 6.1. Leasehold Mortgages. . . . . . . . . . . . . . Section 6.2. No Waiver of Developer's Obligations or City's Rights . . . . . 0 . . . . . . . . • . Ul) PAGE 42 42 43 44 46 47 47 48 48 49 50 50 50 51 51 52 52 52 53 53 55 56 57 58 59 60 t� if 4 TABLE OF CONTENTS ARTICLE VII - REMEDIES PAGE Section 7.1. Events of Default - Developer. . . . . : 70 a. Failure a Payment of Money . . . . : 71 b. Failure - Performance of Other Covenants, Etc. 71 Section 7.2. Remedies for Developer's Default . . . . . . . . . 72 Section 7.3. Events of Default - City . . . . . . . . . . . . . 72 a. Events of Default. •. . . . . . . . . . . 72 b. Remedies for City'sDefault. . . . . . . . . . 73 Section 7.4. Unavoidable Delay$ . . . . . . . 73 Section 7.5. Obligations, Rights and Remedies Cumulative. 74 ARTIC'r" VIII - PROTECTION AGAINST MECHANICS' LIENS AND OTHER CLAIMS, INDEMNIFICATION Section 8.1. Mechanic's Liens and Payments of Obligations . . . 74 a. Developer to Discharge Mechanics' Liens. . . . 74 b. Payment of Materialmen and Suppliers . . . . . 75 Section 8.2. Indemnity of the City. 76 ARTICLE IX - INSURANCE Section 9.1. Insurance Coverage . . 76 a. Property Insurance 76 b. Rental Value Insurance . . . 77 c. Automobile Liability Insurance 78 �_ d. L.ia1:ii1ity Insurance. . . . . . . . . . . . . . 78 C. Copies . . . . . . . a 79 _- Section 9.2. Rem ponsiblc Compani,cs m Blanket -- Invurianz: Vc.rsmit:tcd. . . . . . . . . . . . . 79 • Section 9.3. Narmad I.nsurcds -- Notice to City of Cancellation. 79 Section 9.4. City Iay Prorure Tnsurancc if Developer Fails To Do So . . . . . . . . . . . . . . . . . 80 Section 9.5. Insurance Does Not Naive Developer's Obligations 80 Section 9.6. Loss or Damage Not to Terminate Rental or this Agreement . . . . . . . . . . . . . . . . 80 Section 9.7. Proof of Loss. . . . . . . . . . . . . . . . . 81 — Section 9.8. Property Insurance Proceeds. . . . . . . . . . . . 81 a. Authorized Payment . . . . . . . . . . . . . . 81 - b. Disposition of Insurance Proceeds for Reconstruction . . . . . . . . . . . . . 82 c. Leasehold Mortgages May Have Benefit of Insurance Fund for Reconstruction. . . . . . 82 Section 9.9. Covenant for Commencement and Completion of Reconstruction . . . . . . . . . . . . . . . . 83 Section 9.10. Developer's Rights In the Event of Uninsured _ Major Casualty . . . . . . . . 83 11 TABLE OF CONTENTS ARTICLE X - CONDEMNATION Section 10.1. Entire Leased Property Taken by Condemnation . . . Section 10.2. Partial Taking of Leased Property by Condemnation. Section 10.3. Adjustment of Rent Upon Partial Taking . . . . . . Section 10.4. Taking for Temporary Use or of Leasehold Estate. Section 10.5. Arbitration . . . . . . . . . . . . . . . . . . . • ARTICLE XI -- RIGHTS OF OCCUPANCY AND ACCESS; MAINTENANCE; OWNERSHIP OF IMPROVEMENTS . , C; 85 86 88 88 89 Section 11.1. Quiet Enjoyment . . . . . . . . . . . . . . • • 0 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 Intcrest; City Representatives Not: Individually Liable. . 96 _ Section 12.5. Notice ! ! . ! ! 96 _ a! Deva),c�pe ! ! ! ! . • 97 1). Gevc toper's Records. ! 97 c • City i=',ana, a e r . . . . . . . 97 -_ Section 12.6. Estoppel Certificates. 97 Section 12.7. Provision, Not M-eroed with Deed. . . . . . . . . . 98 Section 12.8. Titles of Articles and Sections. . . . . . . . . . 99 Section 12.9. Counterparts . . . . . . . . . . . . . . . . . . . 99 Section 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 (iv) 84-585 Exhibit E Exhibit F Exhibit G Exhibit H Exhibit I Exhibit J Exhibit K Exhibit L Exhibit M Exhibit N 6O4F/22A TABLE OF CONTENTS PAGE EXHIBITS (con't.) -- Garage Installment Sale and Operating Agreement -- List of Approved Concept Plans -- Development Schedule --- Non-discrimination/Equal Opportunity Requirements ®- Minority Participation Program -- Agreement Between Miami Motor Sports and the City — Management Agreement with Department of Off -Street Parking -- The Design Development Plans for Restaurant in Area A-4 -- Survey Showing All Easements Located at the Leased Property Known to the Director of Public Works of the City of Miami -- Maintenance Responsibility Plan h it 5/23/84 LEASE AGREEMENT THIS LEASE AGREEMENT, made this day of , 19849 by and between BAYSIDE LD41TED PARTNERSHIP, a Maryland limited partnership (hereinafter referred to as "Developers'), and TFE CITY OF MIAM19 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 "Bayf runt Park". Bayf rant Park is shown can tha, Site Plan attached hereto as Exhibit A. For the purTposc of this Lease Bayfront Park consists of Vic following parcels: (a) A parcel of land, having a surfacc area of approximately acres, shown and designated on Exhibit A as "Area A-111; (b) A parcel of land, having a surface area of approximately acres, shown and designated on Exhibit A as "Area A-2". Within Area A-2 is a parcel of lard, 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-3"; (d) A parcel of land, having a surface area of approximately acres, shown and designated on Exhibit A as "Area A-411; (e) A parcel of land, having a surface area of approximately acres, shown and designated on Exhibit A as "Area A-5"; and 84~rS8S (f) A Oarcel of sand, having a surface area of approxiately acres, shown and desiamted on ExW_bit A as "Wmarina". The City is also the owm--r, in fee simple, of all that certain land, having a surface area of approximately squam- feet, located immediately north of Bayfront 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 lane! 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 B" By authority of the City of Miami Charter, the City on 1 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 dcvclopment would -include restaurants, fast-food services, retail boutigics, markets and entc.rta.imcnt. areas responsive to urban, envi- ronmental a.n,a dcsi.gn f rwctors' i.nharcrit to th-a City waterfront and Era\ front Park. Develc acr suLxDitted 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; (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; 84-585. - 2 - �b 0 (c) A market ai.-Pa, containing approximately A4,000 square feet of open plaza and approximately 16,000 sgt-rare feet of lcaseable space, located on Area A--1 between the North Pavilion and the South Pavilion ("Market Square"). Market Square shall contain a flower mart, produce mart, cafes, fisher-man's boat market, and a major water featuIV; (d) A pier park containing (1) a restaurant of approximately 15, 000 square feet, (2) a pedestrian park, (3) a mrina pavilion, and (4) a floating band pavilion to be located adjacent to Miamarina as shown on Exhibit A ("Fier Park") ; feet; and (e) Reflections Restaurant, containing approximately 25,000 square (f) Promenades, landscaped areas, viewing pavilions, access roads, pedestrian bridges connecting the North Pavilion, South Pavilion and the Amphitheater, and oth ar related amenities. The City\ contciTpJ.ates that the following improvements to Bayfront Park will be made: (a) Pha cd rep lacrs�.mcnt of seawalls and rip rap, and construction of a baywalk infill and t_cr taxi piers in location shown on Exhibit A. Upon completion of construction of tfr_ bayw«lk and inf'ill, surMh additional surface area shall be added to and incorporated into Bayfront Park; (b) Permarient 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 $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 84--585. - 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 ref Background and Purpose j_s 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 tuns 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 Exhibit B-1 Exhibit B-2 Exhibit B-3 Exhibit B-4 Exhibit C — Site Plan Legal Description of Leased Property -- Legal Description of Area A-4 — Legal Description of Area A-5 — Legal Description of Area B -- Form of Guaranty by the Rouse Company of Columbia, Maryland - 4 - 84r-585. Exhibit Exhibit E Exhibit F Exhibit G Exhibit H Exhibit I Exhibit J Exhibit K -- Permitted Encumbrances and Easements --- Garage"Agreement -- List of Approved Concept Plans -- Development Schedule -- Non-discrimination/Equal Opportunity Requirements -- Minority Participation Agreement -- Agreement between Miami. Motor Sports and the City — Managements Agreement 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 -- purvey showinqs eats lted at the Leased Property known to the Dirq�ts��q ,b� i �ynr c of tt,p City of Miami 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 thv proper perform:,nce of all of Developer's obligations under this Lcasc in a manner con onant with tha quality, m-:putati•on and cconcric viability of tt M Projcct, i.nCludimi (wi,t;t)out limitation) thle Obligation of Annual Base Rental thcaretofore 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 U) of Section 2.5(a). - 5 - 84-585. "Arbitration Panes" has the meaning ascribed to it in Section 10.5 "Area A-1", "Area A-2", "Area A-";"t "Area A -A" and "Area A-5" have the meanings ascr?.Lrd 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 by the American Institute of Certified Public Accountants. "Auditor" means Peat, Marwick, Mitchell k Co. or such other nationally recognized firm of certified public accountants as may be used from time to 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 -calked "Big Eight" group of Accounting Firms. "Bayfront Park" has the meaning ascribed to it in the Statement of Background and Purpose. " 5a do S,,.)ccj.@;Jty Center" has the meaning ascribed to it in the Statement of Backqround and Purpose. "vital lrrr vents" 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 may be capitalized and depreciated in accordance with generally accepted accounting principles and (iii) the cost of which is not included in the construction and/or permanent financing of Development Cost. - 6 - 84--585. "Certificate of Final Completion" has the meaning ascribed to it in Section 3.10. "!le City" has the meaning ascribed to it in the opening paragraph of this Agreement. -6a- 84-585. "City Contribution to Infrastructure" shall mean Four Million Dollars ($4,000,000) to be used for infrastructure improvements to be mutually agreed i upon between the City and Developer. IrExouements" has the- meaning ascribed to it in Section 2.10. "City Maintenance Area" has the meaning ascribed to it in Section 3.5. "City Storm Sewer Easement" has the meaning ascribed to it in Section 2.3(a). "the City Manager" has the meaning ascribed to it in the opening 3 1 paragraph of this Agreement. 1 "Common Area" means those areas and facilities which may be furnished by Developer within the Leased Property for the nonexclusive general common use of Subtenants and other occupants of the` Improvements, � their officers, agents, employees and customers, including (without limitation) all malls, courts, rams, landscaped and planted areas, eating and picnic areas, retaining malls, stairways, escalators, elevators, fire corridors, bus stops, first aid stations, comfort stations or restrooms, civic facilities, meeting rooms, loadi.r-tig Oocks and areas, dclivcry passages, package pick -in stations, sidewalks, v,,a1,kkziaysI roadways, parking and loading areas, and other similar areas, facilities and improvements. "Completion Date` means that date when the Project and Developer Improvements are open for business and eighty percent (80%) of tte Leaseable Area is leased and occupied by Subtenants (exclusive of temporary tenants or push carts). In the event a Leasehold Mortgagee's requirements provide fof a later date of completion, the later date shall be the "Conpletion 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). "Cumulative Credit Balance Account" has the meaning ascribed to it in Section 2.5. "Debt Service Payments" means all principal PrYj interest, rental and other sums and amounts paid or payable for or cluzinq the applicable or pertinent period or in connection with any Leasehold MoAtonge or any Sale-Subl.easeback Transaction of the Developer's estate in the Leased Property and Developer Improvements and on borrowing to finance Ca�altal > mpzovements; provided, however, that in tt-e event of a foreclosu 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 ttre nominee of any such holder) by deed in lieu of foreclosure, or in the event of the termination of any lease or sublease arisi.no out of a Sale-Subleaseback Transaction of such estate, the term "Debt Service Payments" shall thereafter include all principal and interest, rental and other sLxns and amounts which would have bdcomc payable pursuant to or in connection with such L,easchold Mortoaae or Sale_Subleasebzc►. Transaction but for such foreclosure, deed in lieu of foreclosure o.r 1 case tcnnination. "Default Rate" has the mcani.na ascribed to it in subclause (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 ttw purpose of and properly allocated to the initial development and construction of the Developer Improvements in the Leased Property (together with any and all - 8 - 84--585 "Cumulative Credit Balance Account" has the meaning ascribed to it in Section 2.5. "Debt Service Payments" means all principal arm interest, mntal 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 foreclosum 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 became payable pursuant to or in connection with such Leasehold Mortgage or Sr lc-Subleaseback Transaction but for such foreclosure, deed in lieu of f ozr-closUl-c Or l ease tcnaination. "Default mate" has thz! 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 ttie purpose of and properly allocated to the initial development and construction of the Developer Improvements in the Leased Property (together with any and all - 8 84--585 impirovements to be designated or made by Developer can kp-half of the City in areas adjacent to the Leased Property), including (without Linitation or duplication): (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) �Thc 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 costa and expenses and tap -in fee or other fee for connection to utility systems and utility services during construction; (9) All costs and expenses incurred in connection with the negotiations and execution of this Lease; (10) The cost of initially furnishing and equipping management and promotion offices in the Improvements; (11) The cost of providing, fumishing, 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 81 -585. Y- 9 - trailers or other temporary office structures, barges and tither vessels, automobiles, office furniture, equipment, suppUes, telephone, stationery, our_ - postage and duplication; (12) The salaries, fringe benefits, payroll taxes, travel and moving expenses, and other costs of employment at such field office of (i) managers and promotion directors (but only to the extent incurred prior to the Opening Date), and (ii) tenant coordinators, project accounts, secretaries, clerks and similar office personnel; (13) The cost of subleasing the improvements for their initial occupancy, including (without limitation) advertising costsand the fees, commissions and expenses paid to leasing agents or brokers; EL (14) The cost of pre -opening management, advertising and MEL WE publicity and the cost of any opening event or celebration including advertising and publicity of same; (15) Thc cost of The Rouse Company or any affiliate related thereto to such cxtcnt SUCh costs crc/,j�-,cpq as Development Costs by the Lender of construction fin:,n.--Jrig fOr V11 or part of thv Developer Iff(Drovarnents; (16) Oth--r reasonable costs and eVonses 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 he t - Cumulative Credit Balance Account pursuant to the terms hereof) less the' net proceeds actually received by Developer from any and all Leasehold Mortgages or all 10 - 1 ii M I li IN'' 01111 t I M-0, i Ur 151 Sale-Subleaseback Trnnsacti ins of Developer's estate in the Leased Property and Developer Improvements. "Developer Improvements" has the meaning ascribed to it in Section 3. A. "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. "Fair Market Value" means thw price, as of the date in question, which a seller, willing but. not oblioatcd to sell, could zcccpt for the City's reversionary interest in thc- Lca,sed Property and the or the Developer's cs tatr in t h,-- Lcascd Property and the IRprovcmcnts (as the. case may be) , and vAi,ch a by cr, 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. 3.3. "Final Substructure Plans" has the meaning ascribed to it in Section "Financing Sublease" has the meaning ascribed to it in the definition of "Sale-Subleaseback Transaction". - 11- 84-5145. "Foundation" has the meaning ascribed to it in .Section 12.11'. "Ga�za^ge r-=went" has the meaning ascribed to it in subclause (iii) of Section 2.9(b). " gage 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. "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 trust or other financial institution commonly known as an "institutional lender". "Insurance Trustee" has th4 meaning ascribed to it in Section 9.8(a). "Leaseable Area" means the aggregate of the actual number of square feet of lea cable area in tl-ic Leased Pro city de:siancd for the exclusive use and occupancy of rent paying SUbt.cYnants, caxcl.uding Coltraron Areas, mezzanine storage areas, areas used for m<;nagement and promotion offices, mechanical equipment penthouse, and truck docks and truck loading areas (ircluding covered receiving areas adjacent thereto). "Leased Property" has the meaning ascribed to it in Section 2.1. "Leasehold Mortgage" has the meaning ascribed to it in Section 6.1. "Lender" shall have the meaning ascribed to it in subclause (b) of Section 6.1. "Lender/Landlord" means a lender, and any successor, assignee, transferee or designee of such lender, to which, in connection with the - 12 - * ,u providing of financinq to the Developer under this Lease, Developer's leasehold interest in this Lease hRs been conveyed and which has thereafter entered into a Financing Sublease with Developer. "Market Say�n has tt-r- meaning ascribed to it in the Statement of Background and Purpose. I'Manaaement 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 6 and the maintenance of all Common Area, and all security systems and retail management personnel; Ui) enforcement of all Subleases (including collection of minimum and percentage rents, collection of otter charges such as common area maintenance and hating, ventilating and air --conditioning charges, and supervision of the perforn_:'n:c of all obligation under Subleases), termination. and modification of' existing Subleases M-cn required, rencv,,al of such Subleases and obtaining new Subtenants for vacant sPaccs; OJO supervision of any merchants association; (iv) formilation 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 -e 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 84-5S5 -13 - 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. rclating 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°4 has the meaning ascribed to it in the Statement of Background and Puiliose. "Minimum .Ba c: Rctita7" has- th:3 mcainitig ascribead to it in Section 2.5. "Net lnc. ,_, Av�ail.abl,e for Distribution", means th3, Operating Income for the applicable or pertincnt period, minus the su-n of (1) Operating Expenses for thr 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 - 84-5,35. "Opening Date,' means the earlier of (1) that date upon which Subtenants occ ci-q (SOX) of the Leaseable. Area (exclusive of temporary tenants or pushcarts) are open and operating for business, with the *-Q--- ger ral pubic in the Leas ble Area, or (2) the ninetieth day folloa�ing issuance of the Certificate of Final Coaleti.on. "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 th>c 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 reimburscmcnt or contribution toward thv payment of any Public Charges or any otter paym^nt in t:he nature of a reimburscmcnt of, of cointri but.ion to, or chiiiac in 1_icu of any cast incurred by Developer in conncction i;+ithi t:lco ok',n+erl-Lip car O,r)cr-ation of t.h c Leased Property or the improvements. J-4- 3 "Operating Expenses" means Nithout duplication) (1) all reasonable "' R L��✓ 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 ParkiM 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 premiums, auditing and profession al fees and expenses, publicity costs and expenses (includi.ng, w tho+at limitation, contributions to any promotion fund, advertising fund or merchants association administered by, the Devel,oper), (2) On --Site Management Costs, (3) three and one --half 3- 117-A percent of Operating Income for Managemcnt Costs (exclusive! of On -Site Management Costs) , (k) Annual Basic Minimum Rent and (5) Area A-5 Minimum Rental;. In no event shall depreciation constitute a portion of Operating Expenses. "Oeerating,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 (excludingthe Parking Garage), the I.mp,rovements (other than funds received as the capital contributions, insurarce 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 incase from vending machines, telephones, pay toilets and otter sources located in the Leased Property or the laprovemcnts . Prepaid rcnts, prepaid payments and sc-carity deposits shall not b: included in fop rat.inn JJ1CcVn0 Uf)til earned, appl_ic :4 or forcfcit:cd. If Developer sf-vill receive inFuran c tag rcar���,�rak�L�,�O. pr��i�,�ds �,��r1".-Siza,s, the amount thereof which re resents reimbursement to Dcvelm, r for. itcmayaccounted for as Operating b:pense:s shall be deemed to be Operating dome. "Original Term" has the meaning ascribed to it in clause (c) of Section 2.1. "Owner" has the meaning ascribed to it in Section 5.1. "Owner whose shares are publicly traded" has the meaning ascribed to it in Section 5.1. "Park Site" means the area comprising the Bayfront Park but excluding the Leased Property, all as shown on Exhibit A. - 16 - 84~585 gage" has the meaning ascribed to it in the Statement of Background and -Purpose. npfq�r garage A�ir Rights" means the airspace located directly above the Parkin g Garage. "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 om, 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. "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 Caamen--cm-cant Date" on Exhibit D attachi-ad h2reto, subject to L in the extensions or adjustipn-nts thzreto fequal t perdod cquoa, n ) -A oc -e in the CD,°ml.etion Date due to Unavoidable Dol,ays, 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 an 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— 84-595 last full Rental Year shall constitute the final Rental Year, and Rental shall be apportioned Uvreforv— "Restaurant Faci-lities" has the meaning ascribed to it in Section 2.11. "Restaurant Lease" has the meaning ascribed to it in Section 2.11. — 17a — 84-585 EN "Restaurant Parcel" has the meaning ascribed to it in Section 2.12. "Sale-Subl.easeback Transaction" means Developer's sale to a Lender/ Landord of all, or a substantial portion of Developer's interest in this base, and the subsequent execution of a sublease ("Financing Sublease") between Lender/Landord and Developer. "Section", "subsection", "pLTgr ", "su ragraph", "Llause", 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 cntitled to use or occupy any part of the Leased Property or the Iq-)rovcmb[its under a Subleasc;. "Transfer" has tlia meaning ascribed to it in Section 5.1. "UDAG has the meaning ascribed to it in subclause (e) Section 2.1. "Waterfront Specialty Center" means a retail complex situate on a major body of water having a wide variety of specialty retail and restaurant establishments. - 18 — 84-585. ARTICLE II GENERAL TERMS OF LEASE OF LEASED PROPERTY Section 2.1 Lease of Leased Prmerty to pevelaper. Subject to the conditions set forth in this Agreement, to ttr 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: - lea - 84-585. El 13 (a) Premises. The City demises and leases to Developer, and Developers takes and hi_rP-s from the City, aU of the Area described as Area A--1, Area A-2, portions of Area A-3, Area A- 4f Area A-5, and Area B as shown on Exhibit A and more particularly described in thn legal descriptions attached hereto as Exhibits B-1, B-2, B-3 and B-4 togeti-ver with the buildings, structures, Improvements and equipment thereon and together with and subject to the restrictions, conditions, covenants and casements 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 wh--thcr or not Developer intends to construct tt-- proposcd improvement on Area A-4 and/or to occupy the proposed light tov cr to Ll� const.n.f tcd Icy thw City on Arca A-5. If, nwithin SUch aczi�oc t;h':t Inc vc .c�,�c.r sleds not to conratruc:t. on Area. A-4 or to not occupy trr proposed light tower on Aron ARa or if the City ty has not decided to construct tt'w irrprovpmentM on Area A-51 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 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 s �� 42,000 square feet of Leaseable Area of new construction to which the Developer shall be entitled upon demolition of the existing Oayfront Municipal Auditorium. The proposed structures within Area A-3 shall not exceed a land area of 2.06 acries. (b) original Term: To have and to hold the Leasea 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 Prom time to time upon the same terms and conditions, except as otherwise expressly provided, for up to two (2) additional terns (cash called a "Renewal Term") of fifteen (15) years each, cownenvino at the c xpi.rotion ci th Original Tenm or the previous Rc.nc wal Term, as the cast: may L)cj , i"►I tcnninn.tirfo on the fifteenth (15th) anniversary of such expiration, by giving t.r,-� City c}xpress written notice of a Renewal not less than six (6) months bafore tin date on which such Renewal Term is to commence. At the City's option, such renewal request shall riot 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 - 84-595, (d) Possession of Leased Property. The- City shal1 deliver possession of Leased Property to Developer, and Developer shall take possession thAreof within thirty (30) days after the following shall have occurred: (i) The City Manager shall have approved thA Preliminary Plans and Final Substructure Plans for the Developer lWrovements 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 Stat Developer may, at its option, self -finance all or a portion of the Developer Imcrovcncnts; (iii) The City Hanager shall have received a guaranty in form attached hareto as EylId.bit C fmm tha, Rouse Company (a Maryland corporation) of the prompt and faithful perfomance and observance by Developer of all of its obligation: 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 - 84-585. (e) Conditions Pr.cedent. Developer shall not he obligated to take possession of the- Leased Property or to perform any rather obligations under this I -ease unless and until tt-Y,�' following shall have occurred or have been obtained: (i) the City has approved all of the Construction Plans for the City and 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. 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 Agrcem nt x ith the U.S. Department of Fusing and Urban Developinont for an Urban Development Action Grant (ROUDAG") 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 conditions precedent. If Developer does not obtain satisfactory financing pursuant to subsection (iv) above and shall as a result thereof terminate this Lease, Developer shall pay to the City the amount of Two - 22 - 84--585 Hundred Fifty Thousand Dollars ($250,000) as liquidated damages for such termination of '-this Lease pmvi0ed that the City establishes that Developer did not ncpotiate in good faith for such finano--Inp. TI-e-re -shall be no damages payable to the City if the- Developer shall t'e unable to obtain acceptable financing after a good faith effort with respect to sane. 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 shaU 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, scrvants, cgployccs or contctors occurring prior to delivery of possession th,-,rcof W Dcvc1oper as I*r:.rcin providc-.d. Section 2.2 Restl7jetivc Covcnants. it-r covenants contained in paragraphs 00 through (0) of this Section 2.2 E,17c intcnIcd and designed to bind th:! Developer and th-- City ar4 th---ir Mspective 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 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 Iffprovements in a manner which is in the best interests of both parties may from time to time require the confirmation, clarification, amplification, or 23 84-595, elaboration of this Agreement in order to deal adequately with circumstances which may not now f� foreseen or anticipated by the parties. The parties reserve unto tt mselves tte right to enter into such interpretive, irnplementi.ng or confi,rmatozy agreoments from time to time as tt�--y may deem necessary or desirable for any such purpose without obtaining tt- 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. 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 establisPynents" and "adult" bookstores) o CX ��`i3�i�^�c pl1s, or in suzh manncr ais to constitute a nuisance of any idn l (publ.i c or priv«tc) , or for any purpose or in any way in violation of th3 certificates of occLpancy (or otter 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 84--5S5 - -24- W effect f OM time to tame, prohibiting discrimination or seor-eo;ition by reason of race, religion, sex, or national origin in the sale, lease or Vcr-,L4)Rnr--y of tf-� Leased Property. (c) Permitted Uses for Leased Property, The only uses permitted on th7 Leased Property are retail, zecreation, 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 -,,rd th2 Iarnrovcmcnts. In consideration of the foregoing and of the rentals rcservcd (:.)y it Undc:r t iue Lease, th,-, City, as tha- owner of Via Park Sjtr-, far ittClf , itS, and assions, covenants and agrees with JDr.vc2.opcx, its succcssors and assions th7t: U) F-xccpt as may b-- oth--rwise permitted pursuant to the Management Agreement dated )une 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 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. • (i is) The City will not, without first obtaining the written consent of the Developer, (1) construct any fence or bn.rri.er between the Park Site and tho Leased Property, (2) mako or pemiiit substantial alteration in the Park Site or permit any structure on the Park Site which will substantially adversely affect tt, access to and from the Leased Property; or (3) be inconsistent with the use of than Leased Property; _ (iii) The City gill not sell. tha Park Site except to a party who shall agree to expressly assume the City's ob-ligations under this 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 with. respect to same pursuant to Section 2:1(a), the Park Site will, during the term of this Lease and any renewals l-r--reof, be open to the general public and stall be devoted only to public park uses; and ( v) Th:� City will coordinate its onpoincg planning and implemantcati.on efforts relation_ to th,-x constru--tion of irigrovc=nts to and the use of tl-c Park Si.tc_ and Areas A-14 and A-5 with Dcvel.ope (i n--lUding, without limitation, the staging of promDtional c wrrLs and entortainmcnt activities and construction activities) so that the making of improvements to and the use of such area will not materially adversely effect the Developer's and Subtenant's use and enjoyment of the Leased Property. (e) Enforceability. It is intended and agreed hereby that the restrictive covenants contained in. this Section 2.2 shall be binding upon the City and the Developer, their successors and assigns, and any covenants running with the Land and successors in interest, as the case may be, and shall be for the benefit and in favor of, and enforceable by, the City and - 26 - Developer respectively, as the case may ice; provided, however, that such covenants shall to bincAina on Developer, and thn City, and their respective successors in interest and assigns-, only for such period as each mspecti.vel.y 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; (ii) the 20 foot storm sewer easement more particularly shown and designated as the "City Storm Sever Easement"`on Exhibit "A" hereto; (iii) such other easements as are described on Exhibit D. (b) Easements Granl.ed to Developer. The City grants unto Developer, its successors and assigns the following: (i) the non-exclusivc right and easement (the "Developer Utility C:asumcnt',) to install, maintain, repair and replace utility facil,itic !ttjch as i,l,atc.r, cast cJectrzc, and telophonu lines and storm and sanitary scwers urydcarcaround within portion of t l-ii! Park Site, and any other property okr n�:,d by tho City v hich 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; (i.i) the non-exclusive right and easement (the "Developer Vehicular Access Easement") for the unobstructed access to and from the Leased Property by service and emergency vehicles over and across the Park Site, in the location shown therefore on the approved Construction Plans or such other locations as may be approved by the City Manager from time to time; - 27 - 84 -585 (i33) 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 poriods during special. events, irr-luding (without limitation) the Miami Grand Prix, for the unobstructed pedestrian access to and fmm the Leased Property by Developer and the Subtenants and their respective concessionaires, licensees, officers, employces, 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 patens 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 underg:mLwd sLr�ports along th` bounda::ics of the Leased Property extendino r)L2t more tliin six (f) in--tr-s LjR,-5= <nd into tl-r2 Park Site, as shall be ncr-cssaiy in connection With 1".1-1,; of L.he Improvements and as vh lol be s►-own on thca approved CbnM:,tracton Plans; (vi) the right and easement to enter onto those portions of the Park Site adjacent to the Leased Property for Vve purpose of performing maintenance and repairs to the Improvements; and (vii) non-exclusive rights and easements for installation, maintenance, repair and replacement of utility facilities and for pedestrian and vehicular access to and from Area A-b 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. 84-59 5 -28- A (viii) non-exclusive right and easerre-�,nt for, pedestrian access between the EEC Tract and the Leased Property at st-tch locations as may be approved by the City Hanacter, fraim time to time. It is the intent of this Agreement that the- Developer Improvements be confined to the limits of the Leased PrW-erty. (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 sari, at its expense, upon tha City's or zippropriatc utility's request in order to permit the City or utility to pc rfoi�fll fmc int.Crl»nCC: service:, On the utility lines in t lrr cas c�i►Rnt area, pi-ovidad that in the, dcsign and const:riuct:ion of the Devc.l.g)er lniarovcmcnts, Dcvcl.a;-)cr 111ill. 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 i directly beneath the Developer Improvements, the City and Developer agree to enter into an easement agreement governing the use, maintenance, repair and replacement of the utilities within such easement t area in order to provide Developer i with sufficient assurances of the use and enjoyment of that portion of the Developer Improvements affected thereby within days of the date hereof. --29- 8�""'595 7�.,.�.am MEMr21 3 (3) the party having the benefit of any such eas ntsa (A) shall carry can nny constrmtion, maintenance and repair activity with diligence and dispatch and shall, use its diligent efforts to cmplete the same in the shortest time possible under thn circLnustancos, and (6) 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 ' lzprovements 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 advan--e notice to the other panty of its .intention to coo so; provi,dcd, that in the event of an cm-arocfcy affecting County Easement the City Will Use diligent efforts to obtain th-T consent of the Dade County Water and Serer Authority to such notice requirements; (5) promptly upon the completion of any such construction, repair or maintenance activity, the party having the benefit of such easement shall, at its expense, restore the surface of the easement area as nearly as possible to its former condition and appearance; (6) Developer and City agree to enter into an easement agreement governing the use, maintenance, repair and replacement of the - 30 - 84-5-35 a City Storm aewar Easement, and any other utility easement area which may be located under tt-r Improvements rit:hin sixty (60) days fz(n 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 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 th- term of any new lease made pursuant to the provisions of Sections 6.1 and 6.2. (e) Confiinatory Instruments. Each party covenants and agrees that from time to time at the request of the other party, it shall execute and deliver such aoditional documents or instnments confirming th rights and easements granted and reserved in this Section 2.3 or more precisely fixing their location as such requesting party shall deem to be necessary or desirable. The City Manager is hereby authorized and eaipowereo 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 - 31 - 84-585, 3 f the Leased Property and All Of tfl-r- improv.7-mnentr, tfrreon, which title is free and clear from 111 covenants, easements, liens, clouds of title or othem restrictions except for those listed in Exhibit D. 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 follows: (2) The Minimum Base Rental for each Rental Year, as FULL RENTAL. YEARS 1-2 3-6 7-35 36-45 MINIMUM BASE RENTAL $ 3250000 $ 6501000 $1,000,000 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 t evelo in an account knoE.n as the "Cumulativc Crcdit. Bala;.ncc: Account" a.tlich credit shall accrue interest at eleven (J.ic°.) lac;rcent, co;g)oL!7dc:;d annually. The maxin-rim amount to be credited to the Cumulative; Credit Balance Account in any�Rctntal Yc� r shall b.: no 3 greater than thr tfinimum 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 f,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 Citv's og_tion.. be increased at the beginning of the thirty sixth (36th) - 32 - 8�'"s►�5. _■ Rental Year to an amomi t equ;;I to the average of the Annual Basic R n paid during the preceding three (3) Rental Years. — 32a — 84-SEA 3 (ii) During each Renewal Term, an annual sum equal to the greater of: t�flSi� (1) The average of the Annual sr- Rental paid during the three (3) consecutive Rental Years prior to the end of the Original Term or the preceding Renewal Term, as the case may be and shall, at the City's option. be the New Minimum Base Rental., or (2) Thirty-five (35%) percent of the Net Income Available for Distribution; provided, however, that in no event may such annual rent during 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 rentals. (b) Continuous Operation. Developer covenants and agrees to continuously operate the Project consistent with prudent business practices ke and the standards of operation set forth in Section 4.2 '(considering twelve (12) montt use) in order to achieve a reasonable level of profitability. (c) Parki22 Garage Delay. The City and Developer shall use their reasonable efforts to cause the Completion Date taycc,gr and to open the Developer Improvements for normal business to the public on or before October 31, 1966; provided, however, if Developer shall open the Project to tv he public for normal business notwithstanding the fact that the construction of the ti. Parking Garage is not completed and open for business with the general public -33- 84-585 6 4- pursuant to Schedule G, wtilch time of completion is subject to Unavoidable Delays, then all Mental, shall abate unf;il such time as tho, Parking Garage is complete and open for business wl the general. public. (d) moment: of Rental. Annual Basic Rental shall commence to accrue on the Rent Comencement Gate. The Area A-5 Mi.nimum Rental shah, comlmence when the subtenant or the Developer shall open such premises to the public for business (the 11A-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 Amcri.ca.n Drive, Miami, Florida 33133 or at such other place as the Cite ►t aneocr shall dc5ioj,)-Utc from time to ti m2 in a notice given pursuant to th.s provisi-ons of Section 12.5. Any late payment shall automatically accnic intcrc::t at a rate cqual to two (2) percent above that rate charged by tf-e Citibank, N.A. , of itic4r York to its best commercial customers, generally referred to as its prime rate ( "Default Rate") from the date that payment was due. Any overpayment of Annual Basic Rental at the end of each Rental Year shall be paid to Developer within thirty (30) days of receipt of such report or, at the option of Developer, the Developer shall credit such amount to the Rental due in the next Rental Year. If there is an underpayment of Annual Basic Rental, Developer shall pay the City the amount of the deficiency within thirty (30) days of the City's receipt of the report. - 34 - 84-585 (e) Developer's Records. For the purpose of pervnitti.nq verification by the City of any sm.ounts due can account of Annual Basic Rental, Developer will keep and preserve for at least three (3) years In Cade County, Florida, at the- address specified in Section 12.5, audi.table 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 burs to inspect such books and records -and to make any examination or audit thereof which the City may desire. If such audit shall disclose a liability for Rental in excess of the Rental theretofore paid by Developer for the period in question, Developer shall promptly pay such additional Rental and if such audit shall disclose an overpayment of the Rental theretofore paid, the City shall promptly return the excess to the Developer. Developer further covenants and agrees to deliver to the City commencing as of the Rent Coinencement Date within forty-five (45) days after the close of each calendar quarter and after tfe termination of the Lease, a statement showing, in reasonable detail, th-e, 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 - 35 - 84-595 presents fairly the Rental due with respect to the preceding calendar quarter. If Developer shall, fail to deliver Ur forcQoinca statement to the City within said period, or the City shall. Give written notice of its desire to audit thD 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 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 s_ hundred twenty (120) days after the close of each Rental Year which shall be subject to the audit provisions of thv previous subparagraph. (f) Pro -Construction Cont.rit-yitions, On the Possession Date Developer shall pay to the City Three Million Six Hundred Fifty Thousand ($3,650,000) Dollars as Additional. Rent, �,,,hi.ch amount shill be rccoanized as a part of thv Development Costs. These payments shall be retaind by thw 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. - 36 - 84- 5IS5 $1 Million In the form of a letter of credit on teams and conditions and drawn on an Institutional Lender in all respects satisfactory to the City, which shall be delivered on the state 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 withinvfifteen (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 w1ii.ch may exist in fa\,or of the Restaurant Lcase tenant and Restaurant Associates Industries as assigned to Miamarina Associates for the Miamarina 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 of 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 - 84-585. Infrastructure. Such funds shall be disbursed to Developer as construction of such inf rastructure progresses pursuant to a mutually acceptable disbursement procedure. Notwithstanding the foregoing, Developer shall not bo 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 — 84-585 Developer or the City with respect to the Restaur;;n FAcl.l.ities or any benefits have terminated and are no banger 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 Irprovements. Such evidence shall include (without limitation) copies of all executed documents relating to such terminations and a title report preparers 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, 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, asscsscd or imposed by any public authority against the Leased Property, including all improvcmcnts thereon in th2 sac manner and to the same extent: as if th�z s am-c", t:oact.l1ca ri th all •amprc�ve:r�cnt s the germ, were owned in fee simple by DevcJopelr; provided, that Dcvelope 's obligation to {say and discharge Public Charges levied, assessed or imposed a gad.nst or with respect to Leased Property sha11 not co=ence 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 - 38 - 84'"595 upon or in connection with the Leased Property, The City Parees that it will not impose any special assessment or otheer Public Chirge.t, (Othn-r than ad valorem real prnperty taxes) against trr- Leased Prope.-rty or tr-- Improvements with respect to the construction operation, repair and mainte-nance of any improvements the City is obligated to construct pursuant to this Lease or any special assessment or other Public Charges of the City's Contributions for Infrastructure or repayment of UDAG. The City retains all its rights to impose special assessments or other public charges for all other purposes. Developer, upon written request, shall furnish or cause to be furnished, to the City Manager, official receipts of the appropriate taxing authority, or other proof satisfactory to the City Manager evidencing the payment of any Public Charges, which were delinquent or payable with penalty thirty (30) days or more prior to the date of such request. Section 2.7 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 k%,ithho-ld or delayed. Section 2.8 Security and Police Protoction. Developer shall have the responsibility for providing all security and protcction fo,,. Ingo A.U,1,R -Y A. Developer and City may cntc::c into an agreement requiring - _Lt�-Ci�t to provide such security and protection within v the A DpvelQQer. 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 security and protection throughout the"Developer-Maintenance -Area . — 39 — 84-595, The City shall provide the same security and police protection for the Park Site and the City Maintenance Area as Is afforded all other City open spaces with appropriate augmentation in the exclusive ,judgment of the City Manager during periods of high pedestrian activity including (without limitation) during special public events. Section 2.9 Parkinq Availability. The parties recognize that the availability during the term of this Lease of approximately 1200 public off-street parking spaces on the Leased Property is in the best interests of 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 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 ►;hash are referred to throuol'out this Lease as "City Inprovcmcflts" : (a) Phased replaccment of seawalls and riprap construction of a bay walk with infill and grater taxi piers adjacent to the Leased Property; (b) Parldng Garage; (c) Certain improvements to be agreed upon by Developer and the City with the value of $4,0001000 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 - 40 - 84-585 maintained by the City and delivered to Developer in good serviceable condition, ordihary wear and tear excepted. Ttr City agrees not to adversely or materially alter the Leased PropeTty 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 Propexty and Improvements located thereon as of the date of this Lease, including (without limitation) the restaurant building and improvements ("Restaurant Fac-ilities") located on that portion of Area A-1 ("Restaurant Parcel") leased urxJer a lease agreement dated May 51 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 Dc\,c-1cpc-r1s option, Which option must be exerci-sed in k,,,ritino within ninety (100) days from date of such OamFgc or Ocstimiction oz from the Possession Date, as the case may be, (i) immadiately rqpad.,-r and ,.,cstora the Restaurant Facilities, or (ii) immediately assign to Developer all of the City's right, title and interest in any payment, procecding, or award by any insurance company or other person on account of the tamage or destruction. If the insurarr-e 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 tte..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 84-585 - 41 - a improvements harmonize with the architectural motif of the Developer Improvements and meet all other governmental approvals required, 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 Pro axty, Th? 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,ith provisions of this Section 2.12 with respect to the Lcascd Property as .rapidly as practicable and in a manner vd-dch will coordinate in a reasonable manner with construction of the Improvements. ARTICLE III CONSTRUCTION C11= 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 Building Code, and all other applicable state, county and local laws and regulations. —42— 84-585. Section 3.2 P)-clim inary Plans. The City Rck"owledges that prior to the executidn oft' this Lease, Developer has sutnitted to the City and the City has approved the concept plans (the "Concept Plans") for the const-41iction of the Developer Irpravr-ments, a list of which is attached hereto as Exhibit F. Developer shall -c;uhTdt to the City Manager At the times hereinafter set forth, two sets of plans (the "Pxeliminary Plans"). For tf-r- purpose of this Lease, "Preliminary Plans" shill consist of site plans and structure elevations and sufficient detail to show site planning, architectural design and layout, materials, building construction, landscaped design, access, streets' and sidewalks. The City acknowledges that, in order to meet the schedule for construction, the Developer shall be submitting Preliminary Plans in stages for approval. No permits or other forimal 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 thw particular phase for which a permit or other formal ocvcrri-.)cn'LaI approval is rcqjestcd. The Prcliniin-i-,.- y 1:71ans for al). !:'Lapcs -L-er I of the Devel;opnprovements to be constructed shTII be ,--ub7i�ttcd IIX th:y City Manager an the date set forth on Exhibit G. Upon rc-r-c:Ipt of' cach set of Prc3irUR:-:ry P-1-ans representing a certain stage of construction, th2 City Marger V 4 C W the- same anj shall promptly (but in any event within thirty (30) days after such receipt), give Developer notice of its approval or disapproval settirc 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 - 43 - 84-585 for other stages of the- Project or are new elements not presented in the Concept Plans, or matters which axe violation; of this Lease or of applicable governmental ordinances, codes, plans, laws or rcgulAtions. 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 oriinances, codes, plans, laws, regulations or of this Agreement shall be deemed waived thereby. In the event of a disapproval, Developer shall, within sixty (60) days after the date Developer receives the notice of such disapproval, resubmit such Preliminary Plans to the City Manager, altered to meet the grounds of disapproval. Any resubmission shall be subject to review and approval by the City Manager, in accordance with the procedure hereinabove provided for an original submission, until the same shall be approved by tt' City Manager, provided that in any event Developer shall submit all Preliminary Plans for the construction of Developer 1rR)ro\,cmcnts �-A-dch meet all of t1-r- grounds for disapproval of which the City Mani,,,gc,!, has nivcn native not later thorn th:2 fir-s-t-1 anriivarsary of the date of t1,,d.s Lease. City and Dcvc].uper shall in good faith attc,,w)t to resolve any disputes c=:crning tree- Preliminary Plans. Section 3.3 Construction Plans. For the purpose of this Lease, "Construction Plans" shall consist of final working drawin�s and specifications including (without limitation) the following information: (a) definitive architectural drawings; (b) definitive foundation and structuial 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 0 El relating to st.jbter�qnt- 3-mmvcments. Not later than cane hundred twenty (120) days after approval. of Pre-3-iminary Plans for a particular stage of construction, Developer shall Submit to ttr City VRnqO-er two sets of Construction Plans for the same stage. Upon receipt thereof, tho 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, setting forth in detail its reasons for any disapproval. The City Manager's right to disapprove the Construction Plans submitted shall be limited to matters depicted in the Construction Plans which do not conform substantially to the approved Preliminary Plans or previously approved Construction Plans for other stages or are new elements not presented in the approved Preliminary Plans or are violations of this Lease or of governmental ordinances, codes, plans or regulations. If no response from the City is delivered to Developer within thirty (30) days after the submissioi) of such Construction Plans, or any resubmission , thereof as hereinafter provided, th--y shall be deemed approved, cxcc,_)t that no violations of applicable lav%,s, ordinances, codes, regulations or of this A,,�rcc�xnt shall be dccmcd wajvcd th--arcby. In tt,* event of a disapprova.1, D velm, cr sha�J.X, k,,,ittiin sixty (6D) days after the date Developer rcceivcd the notice of -such disapproval, msutxrj.t the Construction Plans for that stave to th--- City Manager, altered to meet thea 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 months after approval of all of the Preliminary Plans. The City and the - 45 - Developer shall in good faith attempt to resolve any disputes regarding the Construction Plans. No approval by the City Manager of any Construction Plans or Preliminary Plans pursuant to this Article shall relieve. D-eVcloper of any obligation it may have at law to file such Construction Plans with any department of the City or any other governmental authority having jurisdiction over the issues or to obtain any building or other permit or approval required by law. Developer acknowledges that any approval given by City Manager pursuant to this Article III shall not constitute an opinion or agreement by the City that the plans are structurally sufficient or in compliance with any laws, codes or other applicable regulations, and no such approval shall impose any liability on or waive any rights of the City. Developer agrees that it shall provide the City with copies of all plans and specifications used in the construction of the Developer Improvements. Developer agrees to use its diligent efforts to obtain the consent of tho Leascfold Hortoance to th-2 vesting in the City of all rights, title and interest in the plans and ! prcif ications if t.l-Li �Lca. em.ais ten.mi.nated by reason q.,,an Evci,t of Developer Dffaul.t�. L. Section 3.14 Facilities to Ise Cron; f:a�t.ct.cd. f.:."c'(--pL for. the City 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 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". -46- 84-SR5 LI D 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 M all of the property and improvements (including, without limitation, the City LC -- 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 tNe- property and improvements located in that portion of the Leased Property shown and designated as Developer Maintenance Area on Exhibit M. 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 - 47 - effect until Developer, at its sole cost and expense, staff,], have secured or caused to be secured compreherrive general public UabilAty insurance as required in Article YX of this Agreement. Section 3.7 Construction Period. Developer st-RU commencze construction of the Developer Improvements not later than fifty-five. (55) days after the, Possession Date or as soon thereafter as weatt'rer 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 cm rent for any City Improvements to be designed by City. The City shall commerce construction of the City Improvements and shall complete the same substantially in accordance with the City's approved Construction Plans in accordance Frith F_xhibit G.* At the request of cithzr party, the parties will execute and deliver from time to time Such CCrti,,'iCVtCSj CIOCU c-n*LS or as may be z:ppropriate to confirm I'Jx, dates of co,,,nic r-zunc tit o:' cuij)lction of construction as above provided, Wt'Ll C h Cc TIL, if' icat es dDatni r ritS, or i nst rumcnt, s may b,--. rccordcd by the party requesting the- samc at its cypcn,c. Section 3.8 Pro=-ess of Constriction. Subsequent to "4-.h-- delivery of possession of tt-e- 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 - 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 enginee.r;inq gem- rally regrui.rcd at the sl.t€- uryJer sound and prudent engim--ering practices, and will correlate tt results of its test borings and subsurface engirr-erinG and othyr available studies and its observations with the requirements of the construction and operation of the Project. The Developer shall restore the site to its original condition after all testing, and shall provide the City with a copy of all results. The City makes no warranty as to subsoil conditions. Developer shall not be entitled to any adjustment of Rental or of any applicable time requirements in the event of any abnormal subsoil conditions unless the subsurface conditions are so unusual they could not have been reasonably anticipated. Section 3.9 Certificate of Final Completion. Promptly after completion of the Developer Improvements on the Leased Property in accordance with the provisions of this Agreement, the City Manager will furnish Developer with an appropriate instrument so certifying (tl-c "Certificate of Final Completion") . The Cert.if icatc of Final Completion shall tie in such form as will enable it to be rcc.ordc d arnorq t:hc Lan', Records of Dade COUnty, If the City Manager shall refuse or fail to provide such certification in accoroarr_e herewith, tt-e City Manager shall within thirty (30) Gays 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 Buildi2q to Utilities. Developer, at its sale cost and expense, will install. or cause to be insta.Iled all necessary connections between tt-r Developer Jmpro-vrmnnts constnicted or erected by it on the Leased Property and the water, sanitary and storm drain mi, ins and mechanical an04 electrical conduits wh-,Unr 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 3.1.1 Pezrits and Approvals. Developer shall secure and pay for any and all permits and approvals necessary for proper construction and completion of the Developer Improvements. Developer shall secure any and all permits and approvals required to perform any and all of the work or operations contemplated to be done or performed under any of the provisions of this Agreement including, but not limited to, any alterations and renovations made pursuant to .`Section 3.15 hareof, , and shall pay any and all fees and charges due to ar)J collected by the City in connection with the issuance of any such permits c nzl appiovals. If tfie aut�sari ty of the City Manager shall change such that the City Manager shall not have '11--he full authority to perform the obligations imposed on that office envisioned uryier this Lease, th2n 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. Section 3-12 Comliance with Laws. Developer will comply in every respect with any and all federal, state, county and municipal laws, ordinances, rules, regulations, orders and notices now or hereafter in force or issued which may be applicable to any and all of the work or operations to be done, performed or carried on by Developer under the provisions of this -50- Agreement including alterations and renovations pursuant to Section 3.15 of this Agreement.'- Nothing herein shall limit the right of Davelopex to contest the vat i,dity o.r enforceability of any statute, law9 ordinance, iule, 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 tunes 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 ar,d Renovations. Aft= th-- copletion of construction of thz- Dcvcl.c.,--)er ?any vr., rF ntc., acvelcrper r m time to time•✓ may make such «lace-',tions al- t:t't^:read' as it s ha) i decin desirable, provided, !-owcvcx, that no renovation or al.teTMa.ta.on af-fccts tl-y'c exterior appeararrce of the liTprovements or substantially affects tba overall character and appearance of any interior mall, court or public circciation 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 stroll utilize 1/2 of 1 percent of ?l..l 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 Property pursuant to Ordinance No. . ARTICLE IV LAND USES Section 4;1. Land Uses. Developer and the City agree, for themselves and their successors and assigns, to devote the Leased Property, and the Park Site to the uses specified in this Agreement and to be bound by and comply with all of tt)-- provisions and conditions of this Agreement. Section 4.2. Character and Operation of Improvements. The parties recognize and acknow1cdoe that the manner in which tha Leased Property and Improvements are developcd,. used and operated are matters of critical, concern to th; City by rcascln of ( z) th�� pro.,iii.ncn,.-e of th-2 Location in [layfront Bark of the Lca cd PY,,(ncrty, and (i.a.) the ifi�)a,ct which the dcvcJ,op-mcnt of the Leased Property is cxpr.ctcd to have upon ttr surrounding Park Site and upon the economic developmcnt of ttr downtown area of the City. In osier 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. - 52 - 84- S.5 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 nocessary 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, secu A and maintenance by the City of the Park Site shall be of a comparable level of quality and character commensurate with the quality and character of the Leased Property. 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 successors and assigns. Nothing in this Agreement shall be construed to modify Exhibit J and Developer shall not violate or cause the City to violate any part of Exhibit J. ARTICLE V ANTI -SPECULATION; ASSIGNMENT Section 5.1 Definitions. As used herein, the term: (a) "Transfer" means: (i) any total or partial sale, assignment or conveyance (other than by a Leasehold Mortgage or Financing Sublease) or any trust or power, or any transfer in any other mode or form of or with respect to this Lease or of the leasehold estate in the Leased Property or any part thereof or any interest therein, or any contract or agreement to do any of the same; - 53 - _- ? 84-595. (ii) any transfer of the stock of the General Nr-"rer of Developer or of any Ownn'r, otter 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, otter than an owner whose stares am publicly tacadcd.' (iv) Any Sublease of over fifty (50) percent of the L.easeable Area of the Project to a single Subtenant or Subtenants who are related in their ownership; except for a Finarraing 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 indirc-,ctly,. lmally or beneficially, moree than fifty percent (50%) of tf-e stc,?Zk Of th General Part-n r of Developer or other foam of ownership intcrest of any entity described in clause W or this clause (ii) , but shall not irY--ludc any shareholder of an Owrer 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 whose voting stock and other form of ownership interest described in clause (i) is listed for trading purposes on a securities - 54 - 84'."" 85 K exchange subject to the regulatory jurisdiction of the Securities do Exchange Commission (or its successor) or is pL,hl. Cl.y traded over the counter. Section 5.2. Puposes of Restrictions on Transfer. This Lease is granted to (developer solely for the purpose of developipent of the Leased Property and its subsequent use in accordance with the tei ns 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 kith respect to the identity of the parties in control of Developer or the dcarce there of, is for practical purposes, a transfer or disposition of the leaselfiold inter,.ew t. in tljc Leased Property then owned by Developer; th,2 Qualifieationd and identity of Devcloper and any Owner are of particular corr--crn 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 - 84-•5R5 RA Section 5.3. Transfers. Developer, can behalf of itself and any and all Owners, represents and warrants that neither Developer nor any Owner has made, v created or suffered any Transfers. Except is pe Ut;ed pl.arSLJant 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: (a) Any Transfer by Leasehold Mortgage to an Institutional Investor 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. (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 Lender or an agent, designee or nominee of an Institutional Lender vhich is wholly owned or cFont r llc:d by an Institutional Lcndcr, and that sue.h PUrChaser or grantee witfii,n six (6) months after: t aik-ing possession of thW Pro jcct, shall have entered into an f;cceptab.1c Operator's Agreement as described in subsection VI(c)(iv) of this Aq rermcnt. (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. - 56 - 84-585. (d) From and after the date that the Project has been in operation for seven and one-half (7-1/2) years after the- Completion Date, any transfer to (i) an Acceptable Operator consontcd to by the City Manager and City Commission or (ii) Aa_purcP spK having a goad reputation and sufficient financial, resources, in the opinion of the City Manager and the City Commission to own the Project (an "Acceptable Purchg, q that shall have entered into an Acceptable Operators Agreement with an Acceptable Operator. If Developer shall dispute a withholding of consent by the City pursuant to this subsection (d), Developer may submit such dispute to arbitration pursuant to Section 10.5 hereof . ''''-The basis for such arbitration, shall reasonableness of the City Manager and Cif Commission's decision that either such purchaser or operator or both do not meet the criteria herein set_fortb_ 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 otter interests in which are hr�ld by an Institutional Lcndcr or by r UCh other persons, firms, rorporati on a, or other entities as to whd ch 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 VI(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. - 57 - 84"5%,35. ki E (g) Any Transfer resulting from the death or disolution of an Owner provided ;:hat same does not result in the disoZLation or termination of any general partner of Developer or improvement Developer. 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 Acce table 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 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 in his notice to Developer %,ithholding his consent. If th-- City is not rc- uired to consent to a Transfer pursuant to t.h• tei ns hWrcof. Dc—velo;�cr si��l� r�et if'y th city in writing of save ivithdn t4irty (30) days after th-2 date of Transfer. (b) Developer shall f ram time: to time througf'out the term of this Lease as the City shall reasonably request, furnish the City with a complete —S7a- 84 9, Alk 1 .1 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 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 sect -ion 5.4 shall be effective unless and until the entity to which such Transfer is made, by instrumant in %-Iritin,o satisfactai), to the City 14,,rI@gcr and in form recordable arfiang th-_ land records, sihall, fOr JAS01f and itS SUCCCSSOrS and assigns, and espccially for th-_ bcnefit of the City, expressly assurlic 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 - 58 - S4-585 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 tty-.-, 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.&. 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 th:2 City's reversionai), interest in the Leased Property or any part th�rcof or any intcrest thc:rcin or any contract or agrecmcnt to do any of the svfilc, to any purcl'oscr' assignce, mortgagcc or trustee unless such purchaser, assiqncc, morta@gcc, or U'ustec shall have the autfy)rj.ty and thee ability, in the Developer's opinion, to assume the obligations of tha 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 - 84-5T5 Section 5.7a Subletting. At the City's request, Developer shall provide to the City a copy of all Subleases for the Projcct. Developer shall incorporate in all Subleases provisions concerning rentals and expenses that are Aqompatikl th 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 aim'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 sub-,, 'ssion of such proposed Sublease and infonir-,t:ion, t:he City shall notify Developer k-hzth--r th-- proposed Sub1case is approved, I.n th;� event UY-, City shall. 7 ai 1 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 - 84-1595 continuing, Developer shall have the right at any time and from time to time to encumber the 1 easel -old estate created by this Lease and any improvements by Mortgage, Sale-Subleaseback transaction, dead of treat or ether 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 financing the construction of any Developer Improvements made pursuant to the terms of this Lease �__olel 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 tft-,% United States or any commercial bank, or any savings and loan association, savings bank, trust company or insurance co,7r�«ny organized undcr the la+:s of the United States or any state of t.ho United States, or any pension, retiremont or welfare tilist or fund supervised by a goverrrncnt authority of any state or tho United States or any such trust or fund acLministered by an entity which is supervised by a governmental authority; "Leasehold Mortgage" shall mean a mortgage, deed of trust or assigrvnent 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 - 84-5R r Leasehold Mortgages, but sh-R11 be entitled to rely absolutely upon a preliminary title rcpnrt current as of the time of any detexmi.nation of the priorities of such Leasehold Mortgage and prT.ared by a. genn-4;illy- recognized title insurance c;omparry doing business in Miami; Florida.' (c:) (wring the conti,nuarr-e of any Leasehold Mortgage unta.l s=h time as the lien of any Leasehold Mortgage has been extinguishad, and if a true and verified copy of such Leasehold Mortgage shah have been 01a ,vered 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) Th:_- City shall not agree to any muWal termination nor accept any surrender of this Lease (except upon tly^u 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 trreof, without the prior written consent of Lender. W-0 fgot�,ithstanding any default by Develop-cx in the performance or obser\arce of any covenant, condition or agreement of this Lease on the part of DCVC1O,-_,cr to be performed or observed, tl Ci.ty ;=-1-oll have no right to tezminate this Lease even ttouoh an Event of Dcf &ult under this Lease sha11 have occurred aril be continuing, unles-s Gnl until t- e City Manager shall t-2ve civen 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 coamence foreclosure or other appropriate proceedings in the nature. thereof, all as set forth in, and within the time specified by, this Article V1. (iii) Subject to the provisions of subparagraph (iv) immediately below, Lender shall have the right, but not the obligation, at any time 21 • - 62 - prior to termination of this Lease and without payment of any penalty, to pay all of thr, rents due t-vereunder, to provide any insurance, to pay any taxes and nake any other payments, to make any repairs and improvements, to continue to construct and complete the Developer Improv��aents, 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 r - s 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 i; necessary to rc ncdy thv default, Lend€ r r st within such sixty (60) day period, cu;nnicncc and diliGcntly Prosccutco a f ozc-closui•c. act -ion or such other proceeding as may be ncccssai�y to cnable gender to obtain such — ` possession, rovided that (a) Lender ,hfavc fully dared 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 operation of the Project (hereinafter called "Acceptable Operator's Agreement"), and (c) Lender shall have acquired Developer's leasehold - 63 - $4r` 9.5 estate created hereby or c nenced foreclosure or other appropriate proceedings' .in thr natu-�v thereof within such sixty (60) day period or prior thereto, and shall, be diligently and Conti nixiusly prosecuting any such proceedings to copletion. AU rights of the City Haniger to terminate: this Lease as the result of the occurrer-rce of any such Event of Default shall be subject to and conditioned upon the City Manager having first given Lender written notice of such Event of Default and Lender having failed to remedy such default or acquire Developer's leasehold estate created hereby or commerce 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 Def ault 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 thz nature of such Event of Default, Lender shall have acquircb Dcvelope.r's leasehold estate created hrrrby or con"ncrczed forecl.osuZe or cathtr appropriate proccedings in th;: n4,turc: therof, (b) Lender diligently and continuously PI-MCrute -,31-tV su^h D:roccedinas to completion, (c) Lender shall have fully cured any dcfaultl in th-payment of any monetary obligations of Developer under this Lease which do not require possession of the Project within such sixty (6C) 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. Notwithstanding the foregoing, the City agrees that Ler%1 shall not be obligated to complete constr<�cf icon of the I�evc l.np r zsr ravements if Lender shall succeed to Developers nstate under this Lease. Any assignee or successor in interest: to a Lender that ha.s 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 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 Lcasc and. shall continue to pay currently such monetary obligation; as and i h n t'hro s:3mc fall dua f aind ?ro,iscd that lcd-cr s (-vi11 diligently attcii�)t to remove any !7,ue h px;ohu bitiori< At any tAmc that a Lender is in possession of thn Prcrni4 0S puz,>uant to the tvnns h--rcof and at all times thereafter during the term of this Lease or any Renewal Term, the Rental oblioation 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 Base Rental at all times that such Guaranty is in effect. �- — - 65 - 84-585 (vii) The City Manager shall mail to Lender a duplicate copy by certified mail of any and all notices which tf� 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 - 8 4 -595- provision of or a def Ault under this Lease Upon such foreclosure, sale or conveyance, tti-- City shall zecoqniz-r., Lender, or any other foreclosure sale purcha.ser, as tenant I-r-re-kinder exccpt that ;R-IA obligations on Developer herein contained shall tm binding-r;- L on tlendex only from and after the date that it shall take title to the Davelcpnrls leasehold estate unless otherwise in this Article V1 provided; provided, that Lender or any such foreclosure sale purchaser must enter into an Acccptable Operator's Agreement* within six (6) months of the date of such foreclosure' -,--ale 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 car -by an accc-ptanze of a deed in llicu of foreclosure or subsequ-antly assigns or trc-�nsfers its interest: uni-cr jiny such new lease, and in conn.c..,C-tion with any such assior-ncnt or transfez1-crric7, tal es back a mortgage or deed of trust erc-Lnbcring such leasel-old interest to secure a portion of the purchase price given Leasel-old Mortoage 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. 84-58a - 67 - L E (ix) Should the City terminate this Lease by reason of any default by Developer Vn..rnunder, the City Hin;,iqer shall give notice thereof to all Leasehold Hoi�tqagces and tNe City Manager shall, on 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 Improvem-ents to Lender pursuant to such new lease shall 1)2 iiindc wit( -Tout rel)rcsentetion or a%!arranty of any Idnd or nature w1iitsocvc,,r, cittj2r express, or implied; can; Under shall take any Improvements llaa-isll in thair tt-)--.n current condition (except as to any actions taken or improvements made by th-- City during such time as the 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 - 68 - 84-585 i hereunder and havinq remedied and cared or Ins comenced and ,is diligently completing the cure of all non -monetary def cu lts of Developer suscc tible to cure by any party ottl--r than by Dzeval opn:c. li' the City receives written requests in accordance with tt e provisions oil this Section 6.1(i.x) 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, ttae holder of tt-e 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 suns secured by any or all Leasehold Mortgages which are prior in lien to the Leasehold Mortgage told 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 _ F 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..I(L-,,) shaall elect to enter into a nc%,r lease but : haL1 fail to do so or shall fail to take tto action ).-�cq.jirod above, they City still so - notify all other Leaschold h,ortgagces (if any) and -sfl l aft 01 uch other Leasehold Mortgagee a period of sixty (GU) days from such notice within which to elect to obtain a new lease in accoz-dance 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 hereunder in and to the Leased Property and the Developer Improvements. At Developer's request, the City will enter into an agreement with any A 10 Leasehold Mort -page grant-inq to the Leasehold Mortq -a-gee the rights set forth in tfits Article, If such new lease is entered into pur.sumn-t. fx!retop the Lender sh--+Il bn entitled to offset from t-1-r pzrvious rcnAL,P..Is due the City under this Lease, the net operating profit, if any, made by tl"Ye City during the period that the City shall have operated tt-r- Project. W City and Developer shall cooperate in including in this Lease by suitable amen-KIment from time to time any p--ovision 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 --,hall not in any way affect the term hereby demised nor affect adversely in any material raspect 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. Section 6.2. No Wai ver ofDeveloper' s Obligations or City's Rights. Nothino contn.7d h,2rein or in any Lcascl-old Mortgage shall be deemed or construed to rclic\-o Devc)-ppci, fern th-- fUll [IrY6'i fF-i'LJ1fJU1 obscrvan; a and performance of its covcnants, conditions and agrecments contained irarcin, or from any liability for the non-observarr-c or non-perforanr'Tce 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 VZI REMEDIES Section 7.1. Events of Default - Developer. The following events are hereby defined as "Events of Developer's Default": 8 4 -5,9 -5 (a) Failure -- PayT nt . of Money. Failure of Developer to pay any Rental, Additional Rental or PLIb.lic Charges or any otf r payments of money as herein provided or required, wirn=n due and thn continuance of such failure for a period of ten (10) days after_ notice thereof in writinq. 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 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 (_C__.__ and agreements in the Minority Participation Agreement, Garage" Agreement, and the Management and Construction Agreement %,ith thw City Dcj)81 •tmcnt of Cuff --Street rarking, and the continuance of such f� j].urc for a pc.a°iod of sixty (60) day,_:, after notice thex'r-;of in writing from tf-c, City to Dcv(�la,]cr (which notice ! hIia l 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. - 71 - 84-585 L-1 E Section 7.2. Remedies for-, Developer's Default. If any of the Events of Developer's Default shall occur, the City rr'qYg at its option, institute such proceedings as in its Winton are n--cessary 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 DCf -Wlt. the failure of the City to perform any of the covenants, conditions anrJ ,,agrecmcnts of this Lease which are to be performed by the City and th:! continuance of such failure for a period of sixty (60) days after notice thereof in writing from Developer to the City (which notice shall specify the respects in which Developer contends that the City has failed to perform any of such covenants, conditions and agreements) and unless such default be one which cannot be cured within sixty (60) days and the City within such sixty (60) day period shall have commenced and thereafter shall continue diligently to prosecute all actions necessary to cure such defaults, such failure shall constitute an "Event of the City's Default". - 72 - 84-585 It 0 (b) Remedies for Cit '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 rcmedins: M the right and optinn to terminate this lease and all of its obligations hereunder by giving rmtice of such elsction 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 eouity or other proper proceedings to obtain damages resulting from IV V such default. Section 7.4. Unavoidable Delay. For the purpose of any of the provisions of this Agreement, n`itt" r the City (including the City Manager) nor Developeex, as th�2 case. may be, m,r any successor in interest, shall be considered in breach of or in default in any of its oblidalti.ons, in-luding but not li.mitcd to th-, preparation of ti)-, Leascd Property for devclopment, or the beginning and ca7plet:ion of construct nn of the _2evel.opq Trr4orovcmc:r,its or City Improvemcntsx or progress in respect the-reto, in the went 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 ofA a party (not including Asuch Qarty'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 0 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 v or of Developer with re-spect to constrix-7t on of Qevel_ er Improvements, shall be extended for the period of unavoidable delay; provided, however, that the party seeking the benefit of th^ 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. 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 perrormance, or manner or time thoreof, of any obligation of the other party or any condition to its own obligation undcr tl-Lis Agrccimcnt shall ba considered a waiver of any rights of the party malci.no t h.-, �;�.i vr�a: wi tfi respect to th particular obligations of the other party or condition to its own obligation becyond those expressly waived and to th^ extent tl-ereof, 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 rasa and p-JJOT to Possps,qion Date so as not to subject the fee .interest of the City to mcrn5 cs' 13,An 9. If any such mechanics' ]..i..ens si ll at a.ny time be filed against thte Leased Property, Developer shall proWtly tape and diligently prosecute appropriate action to have the szame discharged or to contest in good faith tl-n amr-pant or vaud-i.ty 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 demand for payment of thw see, shall, together with interest t.hercon at the -s Default R�,tee f :t� tl-p date of Live iccc .pt by Developer of the aforesaid written notice and OW iU fio th® date of payment thwreof tyy Developer, to treated as Additional Rental, and shell be payable by Developer to the City not later than the next monthly installment of the Annual Basic Rental becoming due. (b) Payment of Materialmen and Suppliers. Developer shall make, or cause to be made, prompt payment of all money due and legally owing to all persons doing any work or to subcontractors in connection with the development, construction, equipment, repair or reconstruction of any of the Improvements required by this Agreement to be constructed by Developer on the Leased Property. Nothing in this subparagraph (b) shall limit the right of Developer - 75 - 84-58S. to contest, in good faith, by legal proceedings or otherwise, whether any amount claimed or allecaed 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. Ir d mni.ty of City. Notwithstanding any policy or policies of insurance required of Developer, Developer shall indemnify and save harmless the City from and against any and al1 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 occuparr-y 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 use or oacu-)nnvy of teh- Leased Property by suah persons. Th= City shall defend any and all such ,action, claims, dunands or suits on behalf of Developer at tl-e 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 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-.insurpnce icquirement, the pnl _r_.y or pol..cies shall contain an ag med upon endorsement. During tt- construction period, property insurance may be provided on a Go pleted Value Guilder's Risk fora- The term "Improvements", as used in this paragraph, sha_11 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 required by this Aarecmcnt," Developer must nevertl�less rebuild and restore such Improvements I)LIrSua.nt to the teens hereof and must ppy thq en ', �pst of same notwithstanding the fact that such insurance proceeds are inadequate. (b) Rental Value Insur•ame. Rental value insurance, so that Developer will be insured against loss of rental income fram 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 0 opened for business with the general public. The adequacy of every five years the Rental Value Insurance may be reviewed by then City Manager every five years. Any review by the City Manager sha11 not constitute an approval or Acceptance of thn 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 reqoualent policy form providing liability insurance against claims for nal injury or death or property damage, occurring on or about the Leased rty, the Improvements, or any elevator, escalator, or hoist thereon. insurance shallafford protection to at least a conbinLd single limit for bodily injury and property damage liability of $10,030,000 per occurrence. The adequacy of the liability insurance coverage wh�a.1. f)e rcvi.che.d every five years by tf-e City Manager. Any review by th:2 City Manager shall not constitute an approval or acceptance of the amount of insurarre coverage. Such liability and property damage insurance shall also be placed in effect during the period of permitted access provided in Section 3.8 herein. It is the City's intent that any liability insurance provided pursuant to this Section shall be deemed primary insurance coverage in the event of any loss arising from the premises and operations covered by this Agreement. - 78 - 84-11595 0 0. (e) ies. Copies of all policies of insurance and renewals thereof shall be furnished upon reraacst cif the City Manager by th- DLkei.c-,)ez prior to the effective date ttmn�of Copi.cs of nv, or ronrwal pn)Jric 7 1aci,ng any policies cxp.i.rinq during the term or this LFase shams, to de.1i.4--red to City Manager at least- thirty (30) days prior to tte date of' expiration of any policy, together with proof satisfactory to the City that al..], promiums have been paid. Section 9.2. Responsible CE2anics, - 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. AU such companies must be rated at least "A" as to management, and at Least "Class X" as to financial strength in th` 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 bo part of another policy or policies of the Develcper in vhich other prcoi crties and locations azr;. aUsn covered sc long as tha amount of insuaan:�c available: to pay lossc:s at ttu. lcvation is at least the miriiriiu.» by t:ha,s Sccti on, and it cannot be reduced in any manner by losses occurring at, ut�r pr- - -�cz(air�fona. Section 5�.3. Nlamcd lnsu7cds - Notice to.City of Carr-ellation. All policies of insurarce 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 Leaset-ald 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 - 811?-1F95 applied and disbursed .in accordance with the provisions, of this Lease. Ate. insurance policies shall provide that no mates _al chp;nan, carMr-el.latioan or termination sfll be eff cti vo until at least thirty (D) days of t.er wept of written notice thereof hay bccn received by tt-nA City.' leach policy shall contain an endorswnnt to the effect that no act oc omission of the Developer shall affect tt"e obligation of the insurer to pay the full amount of any loss sustained.* Section 9.4. City May Procure InsurRnce if Devel22er 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 insurarr,e, 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 tf*�-_ Default Rate from the date the same were paid by the City to the date `of payment thereof by Developer. Tt-e City shall notify Developer in writi.no of tf date, puzposes and amounts of any such payments . made by it, wl-dch s1riU. bc payable by Deveicnez to thw City witfU n tcn (10) days of such nDtif icati on. S t:;.on 9,5. 1n,,uz.Marioc Dees Not—i,lai�, f�c vc�� :�cr'�Qb?a.cations. No acceptance or approv-al of any i.nsurarr-c agrea,7ent or aa;reczcnts by th-_ 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 tfoe Leased Property at any time, shall not operate to terminate this Agreement or to relieve or discharge Developer from the payment 11 11 A of Rental, or from the payment of any money to be txra ted as Additional Rent in respect thereto, pursuant to this Agreement, as the same rwq become due and payable, as provided in this Agreement, or from t1r-- perf"oa., ante and fulfillment of any of Developer's obligations pursuant to this Agreement. Section 9.7. Proof of Loss. Whencver any Impzov€—:nts, or any part thereof, constructed on the Leased Property (including any personal property furnished or installed in the premises) shall have been damaged, or destroyed, Developer shall promptly make proof of loss in accordance with the terms of the insurance policies and shall proceed promptly to collect or cause to be collected, all valid claims which may have arisen against insurers or others based upon any such damage or destruction. Developer shall promptly give City written notice of such damage or destruction. Section 9.8. Property Insurance Proceeds. (a) Authorized Payment. Except as otherwise provided in subsection (e) of this Section 9.8, all sums payable for loss and damage arising out of the casualties covered by tti-- property insurance policies stall be payable: (i) Directly to Developer, if the total recovery is $500,000.00 or less Mii.ch amount shall be ars pamr sxar�^_r�+^•amc>-me^ati+miom—x.axma.au,-3amL cannencing with tfic Rent Corncncemcnt Date by the percentage cha..noc in the Consumer Price Index for such 5 year period, or in the event tt-rs Consumer Price Index is unavailable some other equivalent Goverrment Sponsored Survey of Changes in the prices of consumer goods and services: exceot 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 i?naining proceeds shall be paid over to Developer. 81 - 84--585 To the )Insurance Trustee, if the total recovery is in excess of $500,000.00, which amount shal). be adjusted periodically eve five (5) years coienci.ng with tt-p- Rent Cori-mencen, ent Date by the percentage change in the Consumer Price Index for such 5 year period, or in the event ttv-- Consumer Price Index is unavailable. some other equivalent Government Sponsored Survey of Changes in the prices of consumer goods and services, to be head 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 bo-come payphl.e, there is, a Leasehold Mortgage on the Leased Property, the. Leasel-Y)l.d Mortgagee shall. serve as th- Insu,�.ance Trustee, but if there is no Leasehold Mortgage at that tim , or if the Leasehold Mortgagee refuses to serve as Insurance Trustee, the Insurance Trustee shall be such com iercial 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 1%'ork. Developer shall submdt invoices or proof of payment to the Trusted for payment Or Yei MbUrSc.,ment in accordance with an agreed schedule of values approved in advance by ttra City Manager. Any amount remaining in thy; hards of the Insurance Trustee after the completion of the Reconstruction Wozk shall be paid to Developer. (c) Lenders and Lender/Landlords Ifay Have Benefit of Insurance Fund for Reconstruction. In the event Developer, pursuant to any Leasehold Mortgage kor Financing Sublease, shall at any time authorize the ALenders '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 - 82 - 8 —5 8.5, ... Wl i AN NEW 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, bQ 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 fork within such six (6) month period, or to complete such Reconstruction Work within such eighteen (18) month period, th=n such Rcconstruction Work may be commenced and completed kf, .tjhin a, lonoor period, provided that such period shall Lac approved in writing. by th,w City Manager after v,rit'tcn request from Dc.veloper. As used in t�L- preceding (-,ntc#nice, the term "avail.ablc net insurance pn-)cecd:;" means the sum actually paid by tl-c, insurer or insurers in relspect of the claim in Question, less all costs and expenses incurred by Developer or the Insurance Trustee in tt-e- 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 hereto if same shall be damaged or destroyed. - 83 - 84-585, Section 9.10. 0e«ea.o er's Rights In Ur Event of Uninsured Major CaSualt In the event nny part of the lmprovemc�nts or. tt-r- 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 opition, in lieu of rebuilding, zrol.mcing or, r�pp-tring the portion of the 1mrovcments or then Leased Property s-o dprmnq d n-r -,t-ro yed, Developer may give notice to the City' within sixty (60) clays, after the occurrence of such damage or dcstiuction, of Developer's clection to texmimte this Lease as to the portion of the Improym--nts or the Leased Property so damaged or destroyed and this Lease shall thereupon taiminate as to such portion of tt"r- 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 an 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 shal.1, at Ittva 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 tti-- description of th- prc �rty dcmiscd he If tInprovcmcnts or the Leased Property )pe which sere Jch there %-,,cre no Insur-a-,na.c, Fro-ccos, shall be V-Uninsurcd, o ()r whi subs t a ntially damiapcd or des'll.'rayed in aany sir --vole, casualty so Vnt MI-2- Improvments, or tf-r-, Leased Property strall b:a unfui,,Lablc for for Developer's continued use and occupancy in Developer's buzinzss, than at Developer's option, in lieu of rebuilding, replacing or rc-pairing the lffprovements 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 - 84 a to of the Developer, signed by the Appropriate Office z o:r rrnnx-p - � _I Partner, stating that in' the reasonable judgment of DowJc9cez, ti-n 7r,7p - - nt s and ;ncv� the Leased Property axe cconomica3Jy unsuitable for D^vcjcpc T' s continued use and occupancy by mason of such damage or destzmUon. This Lease terminate on such termination date, except with respect to obUgations 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 OZ J)Ua,'P-o-,,c by tha (:,,xCrC'isc of th,2 pov"Or. of ciidmnt. Ocniain, or shall be conveyed by th� City and Dcv(-1W)cr acting jointly to avo�-d proc,�ccdinps of such taking, tha Rental anmoney to br;, treatrO, as Aoditjonal Rental pursuant to this Agreement, aryJ thz-: Public Chaiges shall be prorz,'Led 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 - 65 - 84-59q nothing contai.ncd in this Article shall require payment to the City of casts 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 Tz-\kina of �Lcascd�Propertty by Condcmriat.ion. (a) In the. Cvent that les":-" thin all of t1­r_- Lc>ascd Property or Improvements sh+al..l, ba taken for any public use or puij))o o by thf� cxcrcise of the power of eminent domain, or shall be convcycd by City and Developer acting jointly to avoid proceedings of such taking, and Developer shall be of the good faith opinion that it is economically feasible to effect restoration thereof, then this Lease and all the covenants, conditions and provisions hereunder shall be and remain in full force and effect as to all of the Leased Property not so taken or conveyed (except as provided in subsection (c) of this Section 10.2 and in Section 10.3). Developer shall to the extent condemnation proceeds are made available to it pursuant to the terms hereof, remodel, repair and restore the Improvements so that they will be comparable - 8b - 81,11-7,95 y -Y � .-AN-WI-1 W. Value of their, respective interests and cstat€ s in the Leased PiWerty and Irprovements within thirty (30) Mays of' tt-r- time of the taking; such value shall be determi.n^d by the Arbitration Panes, 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 Takirr. In the event a part of thce 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, hoi,+ever, if City and Developer shall unable to agree anon the amoUnt of such rcduction within thirty (30) days of ttr- date of such talcarng, than, and in SU-, lr event, th- MDunt of • such reduction shall fro dotcrrni.n^ d by th,-, Arbitratdc)n Panel scleztcd ill tl-r-1 manner and acting %Pith tl c auttyori.ty provided in Sccti.on 10.5. Section 10.4. Takiro 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 - 88 - 8Q --17Q of any portion of t l-ie improvements, such portion si-11 be applied to pay the cost of restoration, (ii) if Any portion of an award .or payment 'on account of a taking for temporary use relates to a period beyond thA 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 notice of taking by condemnation or the period of time since the 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 parcel of arbitrators ("Arbitration Panel") shall bo establishad wl-en required by this Agreement. (i) The appointments to the panel shall be made in ttr following manner: member. (a) The City shall, name one member; (b) Developer shall name one member; and (c) The aforesaid members shall promptly name a third (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, -89- 81 "-~R 5 then such othrr pirty may TP-qVec;t the President of ttn Florida Chapter of the American ArbitrAtinn Association to Oeslanate a mcmber, who when so designated act in thn- -sam-- rrvi-nnnr qs, if t'Y2 had bm7en the member designated shill act in Ure 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 ton (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 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 CaTmercial Arbitration Rules of the Ar-ti-rican Arbitration Association.' In determining any nyatter bcf orc th2 Arbitration Panel shall apply the lar,, of the State of Florida, including the cloice of remedy, if any, to th,2 resolution of thc dipute bi,1tY,,ccn the parties. In determining any matter before thrrm, tt-r- 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. - 90 - 84-58,15 11 13 (v) A hearing shall be commenced within sixty (60) days following the selection of the last of the thre? irb trat^ors. A mart reporter shall make a transcript of tiie hearing, Thn f,artie: and the Arbitration Panel, shall use their best; efforts to conclude the hearing within ten days. The parties shall be entitled to stx--h 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 haring. The Arbitration Panel shall render a deterniination within sixty (60) days from the conclusion of th hearing. If no determination is rendered Within such time, unless t.h2 parties agree otherwise, a nrw Arbitration Panel shall be selected as drscribcd above, but the new Arbitration Panel shall render a determination solely upon isview 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, k_4zi or any successor code. v 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 - 84r-SP`r court of competent jurisdiction. Together with the determination, the Arbitration Panne shal.,l, provide a written explanation of tt-r- basis fax' the determination. Each party shall pay the fces and expenses of the member of the Arbitration Pane, 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. kaste. Developer shall not permit, commit or suffer • waste or irl,pa .rmcrit of the Leased Property, or thz% DcIveJ.opicr .1hprovements thereon, or any part: t:t-creof, Section 11.3. Maintenance and Operation of Developer T:rr�a.rovements. Developer shall at all times keep the Developer T.mprove-mcnts 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. - 92 - 84`595 Section 11.4. Owrrers!Ap of. �rovements During I e;?se� Prior to the _J� expiration or tem. 3,n::ktJ.on of this lease, title to tt Jrinrove mr�nt-e, stall not vest in the City by zeagon of its owrr.rShtp of fee simile title t,n thn- Leased Property' but title to n ts s-hall in DovalToer- If this I Lr-h Ir -ovm--n Lease -,,-hall terminate prior to tt� expiration of thic 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. Ttv-- 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 sha ll be entitled to claim depreciation on the Improvements and all ccpipment, fixtures and machinery herein contained, for all taxation purposes. Section 11.5. Surrender of Leased Property. Upon tf expiration of the Lease term, or upon termination of this Agreement and tf-n Lease term hereunder in respect to the Leased Property, title to the IjTprovcments shall vest in the City and it stall 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 there bf, agrees to surrender and deliver* the Leased Property and the Improvements thereon, without process of law, peaceably to the City immediately upon such expiration or termination. - 93 - 84-585 Section 11.6. (:ice and Developer to .coin in Certain Actions. Within ten (10) days after receipt of written rprp-lest from Develm, er, the City stall, (a) Join Developer when requi and by law in any and all atIpl,i.cations for permits, licenses or other authorizations rpgjl_red 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 teased Property; and (b) .loin 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 pc rind of seven and one-half (7--1/2) years after tho Co�pletion Date in Dadc or Brow-ard Counties, Florida. Ttr City agrees that the non-competo ca.,ausc hercz.n contairicd shall not prohibit Developer or any of its affiliates, its subsidiaries or its parent from operating, dcvelopir-g or sponsoring slopping center projects substantially similar to the rtr_ras at Bal Harbor and Mayfair in the Grove or traditional suburban shopping center projects. Developer shall be bound by this agreement not to campete for as long as this Lease and any extension of the term t-K--reof 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- 84-585 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 100,000 square feet of gross leaseable area that shall be utilized for retail purposes with a merchandise mix similar to the merchandise niix being offered to tho 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. - 94a - ARTICLE X11 MISCELLAWI-Dis F90v1Sa.OtS Section 12.1. No flartnTrship or .faint Venture. It is mutually understood and agreed that nothing contaimd in this Agreemen► is intended or shall t>-- construed in any manner ox under any circumstances whatsoever as creating or establishing the relationship of co—partmrs, or creating or establishing tti-- relationship of a joint venture between the City and Developer, or as constituting Developer as tt- agent or representative of the City for any purpose or in any manner whatsoever; Section 12;2.' Recording, Documentary Starnes. This Agreement, or a memorandum hereof in form mutually satisfactory to the parties, shall be recorded among the Land Records of Dade County, State of Florida, and either party may cause any modification or addition to this Lease or any ancillary document relevant . to this transaction to be so recorded, and the cost of any such recordation, cost of any State of Florida documentary stamps which legally must b2 attach,-d to any or a11. of said papers, and the cost of the applicable Glade County and State transfer tax shall Lie pz id in full by Developer. Section 12.3. Florida and Local Laws Prevail.. This 6=-t:c;.mcnt shall be taken and deemed to have been fully made and executed by the parties tr_reto 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 otter charter waterfront setbacks and view corridor requirements. Any conflicts between this Agreement and the 95 - 84-585 aforementioned Codes and Ct-,iztP-rg st-RI-I be resolved in Favor of ttv,-, latter. In the- event th;,L any part or portion of this Agreement is four "d to he in con,- flict with any Charter or Codo Section then that portion of this Agreement shall be automiatica.11y stricken and the remaining parts shall remain in full force and effect to the extent Developer in its r~a!7onabln 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. 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 hzr personal. inAL-ercst or th-interest of any corporation, partnership or asso[,iat-ion in vd-n.ch ha o- sl� is, dirc-ct.ly or irdircctly, intcrcstcd. No member, official,p: rc-cscntatj,\'C or CiTd.)IO\cc of thZ City or the City Manager s ha 11 t�-. p r;,:, -ly Uablc to DeYclopc,;. or any -sona) su-ccsfi - in interest in t t-r-- 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 - 96 - 84-585, (a) Developer. In the case of a notice or communication to Developer, if addressed as follows: General Counsel 8ayside Limited Partnership c/o The Rouse Company Columbia, Maryland 21044 (b) Develo er 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 Scction 12.5. Section 12.6. Estoppel Certificates. The City and Developer shall at any time and fro;Tn 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 - 97 - 84-'585. 0 0 Section 12.8. Titl_cs of Articles and Section; Any titles of the several parts; Articles and Sections of this A.grremm�,nt are inserted for convenience of reference orily end sha.l_l be din -regarded in construing or interpreting any of its pryisions-. Section 12.9. Counterparts.' This Agreement is executed in six (C) counterparts, each of which shall be deemed an original, and such counterparts shall constitute one and the- same instrument: Section 12,10: Nondisturbarce 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 Irrprovernents from time to time, that in the event of a termination of this Lease, the possession of each such Subtenant shall not be disturbed so long as such Subtenant shall not be in default under its Sublease; provided such Subtenant shall attorn to the City. This nondisturbance agreement shall be self —operative and no further agreement between the City and any sL h Subtenant shall be necessary to effect the same, however, the City aarres frc,•n tune to time, promptly upon reauast of Developer or any Subt.c_nant, it r;ill ent;c?: into cgc-ccmrrits \ i.th I'Jr, Dc%,elc )ca and any such SuCatcri-ant confixming r rr lAny :such confirmatory argreemcnt may b,: mane on balvi5f of tha City by tha, City Manager. In the event of a termination of tf-Lis 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. Solely with regard to the construction of the Improvements on the Leased Property pursuant - 99 - 84r-585. X to this Agreement, Developer agrees for itself, its successors and assigns, to insert into all agreemcnts with the. general contractor thA provisions relating to equal opportunity set forth in Exhibit H. Developer will use affirmative efforts to seek and offer to minority - controlled businesses the opportunity to lease such portions of th=a Leased Property as may from time to time become available in accordance with the Minority Participation Program attached t"Ye reto as Exhibit H. As used herein and in the Exhibits, "minorities" shall include Blacks, Hispanic and Asians. Nothing in this Section 12.11 shall restrict thee right of Developer to determine the use, amount of space and other terms of lease in the Leased Property, provided such germs are not discriminatory. Developer also agrees to organize and fund a minority development foundation ("Foundation") with an Annual Contribution of an amount equal to ten percent (10%) of the Net Cash Available for Distribution or $100,000, whi.chnver is orcater, in accordance with provisions contained in Exhibit I which payrncnt shall commence on thv Rent Com-ncncemcnt Date. Tt annual .y h w. contribution shall ba, for the puxposc of this Agrccmcnt, considered Additional Rent:, and as such, subject to Section 7.5(c). TI-c f oUrioatiorr shall be organized to and shall, obtain the status of a. tax excmpt argon .7ation under Section 501c(3) of th�- Internal Revenue Codc prior to the date Developer is obligated to make such annual contribution. The Foundation will provide assistance to minority cwnnunities 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 - 84-585, 01, (b) creation of nchol-irship fund for vcnatio M-1 rdur_Rtion. (c) allocation of r-pf'aAl fV)ds to providc tPchiriicP,j assistance in the form of managr-mcnt, I an, accounting, Lvursinnss, development, counseling and training services to local cm7imunit ty development corporations which are engaged in cconomic development activitties.' (d) creation and distribution of special funds for business development allocated through the Miami -Dade Chamber of Commerce and Latin Chamber of Connerce.' Section 12.12. Successors and Assigns. Except to the extent Limited elsewhere in this Lease, all of th3 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 MIA41, INC., the sole general partner of BAYSIDE LIMITED PARTW-RSHIP,' has caused this Lease Agreement to be signed in its name by its Exccuti\-c Vice -President and its corporate seal to be h,.,reunto affixed, duly att-cstcd to by its Assistant Sczrctary, ,.,nd th2 CITY C0'14�AISSION OF MIAMI has caused t1iis Leas AQP�'ccnicnt to be s-ign-ad in its name L), Howard V. Gary, ttr. City Hanpqcr, afy' duly attcstcd to by Ralph G. ongier the City Clerk, on tho day and year first harcimbove written. ATTEST: [Corporate Seal] BAYSIDE LIMITED PARTNMSHIP By: ROUSE MIAMI1 INC., general partner By: Executive Vice -President - 101 - 84-585 ATTEST: [Corporate Sear APPROVED AS TO FORM AND CORRECTNESS: S GARC OSA CITY ATTORNEY 602F/22A THE CYTOF MIR-41 F� STATE (iFF FLORIDA AL CORPORA- TION OF 8y' ioward V. Gary. City Manager I -102- 84--585. L1 Days 0 30 EXHIBIT G Date June 30, 1984 July 30, 1984 September 30, 1984 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 120 October 30, 1984 Approval of Financing - Retail and Parking Preliminary plans. to City for approval including City e departments review and approval (Retail, Infrastructure and Parking Garage) 135 November 15, 1984 City Approval including City departments of preliminary plans (Retail, infrastructure and Parking Garage) 225 February. 13, 1985 Complete review of final plans with City (Retail, infrastructure and Parking Garacae) 240 February 28, 1985 City approva3. it-v-luding City departments approval of fir al plans (Retail, inf ras tructure and Parking Garage) Issuance of Building Permits 250 March 10, 1985 Corps of Engineers landfill complete Demolition complete n Possession Date 305 May 15,, 1985 Rouse and City commence construction 730 June 30, 1986 Infrastructure substantially complete 790 August 30, 1986 Bayfront improvements substantially complete 850 October 31, 1986 Sayside & parking open to public 602F/22A and Rent Commencement Dat.4 585 yam; 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 the possible construction of a performing arts center. Such terms and conditions may be more specifically set forth in the Parking Garage Agreement. 84--585. 47 CITY OF MIAMI, FLORIDA INTER -OFFICE MEMORANDUM TO: Honorable Mayor and DATE: May 18, 1984 FILE - Members of the City Commission SUBJECT: Lease Agreement for Bay - si de Specialty Center City Commission Meet - FROM: Howard V. GarREFERENCES: ing May 24, 1984 City Manager ENCLOSURES: Resolution, Lease It is recommended that the City Commission authorize the City Manager to execute a Lease Agreement, in substantially the form attached and with the under- standing that a Parkin Garage Management and Con- struction Agreement with the Department of Off -Street Parking and additional exhibits to this Agreement will be brou4-ht before the Commission for approval, between the City of 11i< mi and Laysi..de _Limited Partncrship on behal.fof Rou; (2 iliami, lne. an affiliate of�Tlic Rouse Con n of Columbia, 11<aryland for the l)lann me arddde- sl n CC7n.'tructioIl le,3 31T1g and managellient of a water- front 5pccialty center to lac 1cnown as "Bayside Specialt.;y_Center.'l _-llocated on a City -owned land parcel containing approximately sixteen acres and adjacent to Biscayne Boulevard and liiamarina and a portion of Bay - front Park, subject to the condition that the terms of the contract result in a fair return to the City based on t-wo independent appraisals and comps with require- ments for the commercial use and management of the City's waterfront property as set forth in the City Charter. The City Commission by Resolution No.83-1164, dated December 15, 1983, authorized the City Manager to negotiate a Lease Agreement with The Rouse Company for planning and design, construction, leasing and management of a waterfront specialty center to be known as "Bayside Specialty Center." The Rouse Company and I have negotiated in good faith the attached agreement in the record time of five months. No other Rouse specialty center agreement has been negotiated in less than one year. It took the City of New York three years to negotiate its agreement with The Rouse Copany for the Southstreet Seaport Specialty Center. While the Parking Garage Management and Construction Agreement between Rouse and the City's Department of Off -Street Parking remains to be brought before you for approval, the process is well along and, based on everyone's dedicated efforts as demonstrated to date, the agreement should be submitted for approval at the June, -' 1984 Commission meeting. tti; h Page (2) Summary of the Lease Agreement Terms and Project Goals The Bayside Specialty Center will be developed by Bayside Limited Partnership, a Maryland Limited Partnership including Rouse Miami, Inc., an affiliate of The Rouse Company and local investors, Armando Codina, Ronald E. Frazier, Raul Masvidal and Garth Reeves. Bayside will include approximately 200,000 square feet of new retail space for an estimated 200 merchants in addition to the existing Miamarina Restaurant facility refurbished as an integral part of the improvements. A minimum 1200 space parking garage will be located on the site of the existing Bayfront; Municipal Auditorium terraced and landscaped to fit the project's park setting. The approximately 16 acre site bounded by Biscayne Boulevard, Port Boulevard and Biscayne Bay surrounds Mliamarina and includes a 2.06 acre port ion of Bayfront; Park. Shopping pavillions and an open market area surround and face the i,,inrina. Bayfront Park and the B aye- alk is exterld(ld J.onf; the norti ea—'t pier and pedistri an acce5 c, i:, provided t,o their proposed amphitheatre and water taxi station piers, B;iy:,idc; 1-s de:_.igned to accommodate and support major downtown such as the Miami Grand Prix and Bayfront Park feratival.s. Bayside will provide an estimated 1000 permanent jobs, pluz, the additional employment opportunities created by an 18 month construction period. The Rouse Company has set a minority business goal of 50% of the tenant merchants. Bayside represents an estimated investment of $93,000,000 including $72,000,000 in private capital for the retail facilities, a $1,000,000 cash contribution for Bayfront Park improvement $16,000,000 in parking revenue bonds and a $4,000,000 City contribution for infrastructure improvements. In addition, Bayside Speciality Center will require and be dependent upon the completion of the Bayfront Park amphitheatre, Baywalk and portions of the park adjacent to the project site. The Rouse Company and the City will submit an application to the U.S. Department of Housing and Urban Development for an Urban Development Action Grant for funds sufficient to complete these improvement in order to make the project whole. MoTiOIJ5114 Page (3) Summary of Terms . A lease period of 45 years plus two 15 year options. . Rental payments to the City include: A minimum guaranteed rent of $325,000 for the first 2 full calendar years; $650,000 for the next 4 full calendar years; $1,000,000 through year 35 or 35% of Net Income Available for Distribution whichever is greater. Net Income Available for Distribution is the total operating income of the project from all sources), less operating expenses, debt service and an amount equal to 10% of the Developer's Equity Investment. The minimum guaranteed rent for year 36 through 45 will be increased to the average rental paid in years 33, 34 and 35 (should such average rental be greater then the minimum guaranteed rent). Rent for the initial partial year 1986 will be a monthly amortization of the $325,000 annual payment. The minimum guaranteed rent for the two additional 15 year option periods will be negotiated prior to each option period and will be based upon the average rental paid in each of the three years previous to the renewal date. An additional annual rent of $50,000 will be paid for retail space available at the base of the Noguchi light tower structure to be built in Bayfront Park. An annual payment to the City or to a Minority Foundation to be formed of $100,000 or 10% of net cash available for distribution whichever is greater. A payment to the City of $3,650,000 of which $2,650,00 is to be used to buy out the existing lease agreement between the City and Restaurant Associates for Reflections Restaurant and $1,000,000 is a cash contribution to Bayfront Park. The following development schedule is required by the agreement and is conditioned on the City meeting its key schedule requirements: June 30, 1984 Fully negotiated documentation. October 30, 1984 City approval of financing February 28, 1985 City approval of Construction Documents March 10, 1985 Completion of landfill by Corps of Engineers, Demolition of Bayfront Auditorium and Rouse possession of site. May 15, 1985 Commence Construction October 3, 1986 Open for Public and Rent Commencement Date MOV 0 N s 84-58 84-585 filk Page (4) The Rouse Company anticipates opening October 31, 1986 and is guaranteeing completion. Rental payments commence on October 31, 1986 unless delay is shown to be caused by the City or to have been beyond control of the Developer. . The Agreement includes a non -compete clause for Dade and Broward County and a non -assignment clause for a period of 71/2 years from opening. The Agreement assumes compliance with all requirements of City Charter.There is specific reference to waterfront public access, view corridor and setback. { Grand Prix is provided for by course route thru site and requirements of Miami Motorsports Agreement. . Requirement for Art in Public Places is of 1/2 of 1% of construction funds. Leased area is to be ►traintained by Developer in condition _ comparable to standards of a first class center. The City is to maintain certain park and public areas surrounding; site to comparable standard. City improvements to include: Landfill, baywalk and water -taxi pier adjacent to leased area Infrastructure improvements valued at $4,000,000, and a minimum 1200 space parking garage. City Department of Off -Street Parking will fund, construct and manage the parking garage. Developer will design the garage and fund any deficit in start up years to be recouped from future profits. Profits to be shared equally between Off-street Parking and Developer. Agreement does not include the Developer paying damages to _ New -World Marinas for business interruption caused by the Port bridge construction. Will require Port/City agreement to be changed whereby City will be responsible for any such payments. May I also draw to your attention that the Lease Agreement will be presented to the Board of Directors of The Rouse Company on Thursday, May 24, 1984 for consideration and approval at the same time as it is being considered by the Miami City Commission. It is recommended that the Lease Agreement be approved, in substantially the form attached, and that I be authorized to - execute the agreement upon Commission approval of the garage agreement and exhibits to the Bayside Specialty Center Lease Agreement. movows 84-58s SECTION 4 EVALUATION CRITERION (lO%): MINORITY PARTICIPATION 85 SECTION 4 EVALUATION CRITERION (10%): MINORITY PARTICIPATION In the development and operation of its projects, The Rouse Company sets specific goals in order that each project be representative of its market and of its communities. Rouse, therefore, makes special efforts to involve minorities, not only as an act of social conscience, but as an essential part of any project. The strength of an urban development comes from the fabric of the community it serves. The Bayside Project will depend on the patronage of all Miami communities. A balanced participation in the project by all segments of the community is vital to the business success of this undertaking. Demonstrated Record of Minority Participation From its inception, The Rouse Company has been committed to equal opportunity and minority participa- tion. Following are some examples of action programs and results obtained in three of The Rouse Company's recent urban projects: (A) The Gallery at Market East, Philadelphia. Phase II opening this Fall. (1) 27% of the total amount of construction dollars awarded to minority firms; 8% over goal. In order to encourage minority contractors to bid, bonding requirements were, at times, waived; major contracts were split up into smaller jobs; and, where 84-585 { } 86 necessary, advance payment was guaranteed for � Y� p Ym 9 _ 2 the purchase of materials by the contractor. (2) Funding of $442,000 for minority equity loans through City Council ordinance. Y� (3) Funding of $900,969 for interest "buy -down" money to the minority leasing program; also by ordinance. :y (4) Of the 26 leases currently made with minority tenants, 8 are fully financed and the rest are moving through bank and SBA guaranteed approval processes. '1 j (5) The Gallery minority job applicant referral service with employment counselors from Philadelphia's Office of Employment and Training held interviews and referrals from i an on -site trailer. This arrangement facilitated the matching -up of qualified minority applicants with tenants having job openings. (B) South Street Seaport, New York. Phase I opened this Summer; Phase II opening in 1984. } (1) At least 29% of merchants in Phase I and II y are projected to be minority. r ° (2) When completed, 37% of total employees in Phase I will be minorities. t f 84-585 r � 87 (3) Minority employment in Phase I has reached 30%, and phase II, when started, is expected to boost that figure higher. (4) A centralized, cost-free employment service is in operation near the project to handle hiring needs specifically directed toward minorities. (C) Harborplace, Baltimore. Opened 1980. For its minority participation achievements at Harborplace, The Rouse Company was the recipient of the U.S. Department of Housing and Urban Development's Minority Utilization Award. In giving the award, the Department stated that "Harborplace Limited Partnership (an affiliate of The Rouse Company) put forth extraordinary efforts to facilitate the recruitment and utilization of the skills of minorities as subcontractors in the construction of Harborplace; but equally significant a,,ere the innovative ways �.nployed by the partnership to encourage minority owned and operated businesses to lease space in the project."1 According to the United States Commission on Civil Rights, "In Harborplace the City, the developer, and the general contractor demonstrated that it is possible to complete a major development project and ensure minority participation in all its stages. Harborplace demonstrates that, with a comprehensive strategy 1 HUD Regional Administrator Thomas C. Maloney, HUD News (July 29, 1980). 88 - i „R and commitment from the top levels of both the private sector and the City, a large and profitable project can be constructed on schedule while providing _=s,ployment for minority workers and contracts for minority -owned construction companies as well as business opportunities for minority entrepreneurs in the completed project."1 Following is a summary of achievements of The Rouse Company's affirmative action program at Harborplace: (1) Construction Goal: Working in conjunction with the general contractor, Rouse targeted: 10% of total contract value to be let to minority subcontractors. Achievement: fkwarded in excess of 10% of the total contract value to minority subcontractors. Extensive efforts were undertaken to make this minority participation possible. o Biweekly conferences were held with the general contractor to review 1 United States Commission on Civil Rights. Greater Baltimore Commitment: A Study of Urban Minority Economic Development (May, 1983), p. 56. 84-585 upcoming bids with minority subcon- tractor organizations. o Selected bidders' lists were reviewed for purposes of verifying minority bidders as bona fide minority contractors. The General Contractor's purchasing power was used when appropriate to assist minority contractors to bid competitively on subcontracts. o Additional efforts were undertaken after awards were made to minority subcontractors. Bonding require- ments were waived for minority contractors. Arrangements were made by the Developer and the General Contractor to assist minority contractors' cash flow by expediting contract payment. o Retained portions of subcontracts were reduced to appropriate minimum levels, and payment of retained amounts was expedited after satisfactory completion of work. Goal: Working in conjunction with the gener- al contractor and the labor unions, Rouse targeted: o 25% participation by minorities in construction jobs. 84-585 .. . _. _... ... _.. 90 Achievement: The percentage of minority construction workers in the Harborplace project exceeded 40% of all workers. (2) Leasing Goal: To organize a special effort to identify minorities who could be successful merchants and to assist r them in finding sources of finances. Achievement: Of 130 merchants who opened at Harborplace, 22 were minority, of which 18 were Black. Minority participation continues at this level. Minority merchants are involved in a 1 wide range of business enterprises, including a variety of eating places, specialty retail shops, and stalls. (3) Opening Phase Goal: With regard to the staffing of Harborplace, it was Rouse's objective to: o Have 50% of all new jobs with Harborplace Limited Partnership (the Rouse affiliate which developed and now manages Harborplace) filled by minorities. Achievement: The goal of hiring minorities to fill 50% of all new jobs with 84-585 ANN Harborplace Limited Partnership was met. Of 22 people hired to date for the security force, 20 are Black and 11 are women. Of these, three are supervisors and three are assistant supervisors. All but one of the security force are Baltimore City residents. 'The maintenance crew numbers 65 people, of which 61 are Black including the supervisor of mainte- nance. All but one of the crew are residents of Baltimore City. Goal: To facilitate the employment of minorities by the tenants of Harborplace by referring job applica- tions from Baltimore City to tenants. Achievements: In cooperation with the Mayor's Office of Manpoier Resources, Rouse established the Harborplace Referral Service, to assist Baltimore City residents in minding employment at Harborplace. This centralized referral service was located in a trailer adjacent to Harborplace. Jobseekers were interviewed by personnel specialists and referred to Harborplace merchants. To date, over 1,000 people have been hired by Harborplace merchants through this process. 84-585. I 92 WL Proposed Bayside Minority Participation Program The Bayside project provides an opportunity for The Rouse Company to create another successful urban ,WWI marketplace - an important ingredient of which will be a comprehensive minority participation program. Such a program could serve as a model for future develop- ment in Miami. As a member of the Miami business 'It-W community, The Rouse Company, with its extensive expertise in successful minority participation pro- grams, will make itself available as a resource to assist the City and the private sector in achieving their goals in this area. As a principal element in this proposal, The Rouse Company commits to ensure minority participation in all aspects of the Bayside project. These commitments include: o Substantial minority equity participation through a group of local minority investors who will, in fact, share in the project's risks and rewards as owner/partners. o Commitment of a portion of cash flow to a new foundation established to address the needs of the minority communities within the City of Miami and Dade County. o Commitments to professional service contracts in the planning and design of the project. o Commitments to minority contractor participa- tion during project construction. VA 93 o Commitments to substantial minority employment during construction and long-term project management. o Commitments to substantial minority ownership of businesses to be leased space at Bayside. (A) Minority Equity Participation This proposal includes a local minority partici- pation in the Bayside project. As described in the Partnership Statement submitted with this proposal as part of "Appendix A," 20% of the pro- ject will be owned by a minority group consisting of Mr. Ronald E. Frazier of Ronald E. Frazier & Associates; Mr. Raul Masvidal, President of Biscayne Bank; Mr. Armando Codina, IntrAmerica Investments, Inc.; and Mr. Garth Reeves, owner of the Miami Times. It should be pointed out and, indeed, emphasized that the position in the Bayside project of Messrs. Codina, Frazier, Masvidal and Reeves is one of equity participant, as referred to in the Request for Proposal. As provided in the partnership agreement included with the Proposer's Financial Disclosure and Professional Information submitted as "Appendix A" to this proposal, each member of the group is required to share on a proportionate basis in all pre -development costs (including costs associated with the RFP competition), and to provide a proportionate share of any required equity and operating losses (expected in the start-up years). The group will then share 84-SS5_ 94 proportionately in cash flow and tax benefits. Perhaps most importantly, the group will participate in all of the major decisions affecting the project (e.g., design, merchandising, plans, development and operating budgets). The relationship between The Rouse Company and Messrs. Codina, Frazier, Masvidal and Reeves has been - and will continue to be - a cornerstone of the proposed program for Bayside. They are important owner/partners in the Bayside project described in this proposal. In furtherance of its strong commitment to minority participation in the profitability of Bayside, Rouse will establish a local account with the minority -owned Peoples National Bank of Commerce, Miami. (B) Minority Development Foundation In addition to the 20% minority partnership interest referred to in (A) above, 10% of the cash flora of the Bayside project will be utilized to establish a minority development, foundation (The Greater Mi «rni Ili nori ty Development Foundation) which will provide assistance to the ;ninority communities within the City of Miami and Dade County, such as Liberty City, Overtown, Litte Havana and Black Coconut Grove. It is proposed that the Foundation be responsible to a 15-person board of directors: one-third elected community representatives, one-third appointed by 84-5135. 95 the City of Miami Commission and one-third selected by Rouse and its minority partners. This Foundation will focus on the following four major areas: o Loan guarantee and venture capital fund for loans to Blacks. A percentage of Foundation funds will be allocated in the form of loans or guarantees to carefully selected Black enter- prises which may be prospective tenants in Bayside or located eisehwere in Dade County. The objective of these loans and guarantees is to promote opportunities for Black -Controlled and -operated business and to create jobs for Blacks. o Scholarship funds for vocational education. A percentage of Foundation funds will be allocat- ed for scholarships to deserving individuals k. and institutions, such as Cary Branch of the Martin Technical Institute and Florida Memorial a College. a _ o Special funds to provide technical assistance to the local Community Development Corporations which are enqaged in economic development. The technical assistance would be in the form .of management, legal, accounting, business development, counseling and training, and would A help to ensure the success of the Community 'f Development Corporation programs by developing s adequate support systems, and coordinating and integrating resources. 40 Xmift ZEN �4�585. 96 o Special funds for business development allocat- ed to the Miami -bade Chamber of Commerce and - the Latin Chamber of Commerce. (C) Professional Service Contracts: ' j This proposal includes a commitment to provide j a maximum opportunity to engage minority personal service firms. Already, the following minority firms have been retained by Rouse for the development of Bayside: x _ o Spillis Candela & Partners, of Coral Gables, )? has been retained as associate project archi- tect and has worked with Benjamin Thompson & Associates on the project design submitted as _ part of this proposal. The Spillis Candela firm is the largest minority -owned _ architectural/engineering firm in the United States. o Mrs. Maria Elena Torano/META Associates, of Miami, has been retained as local public rela- tions counsel. o Lezcano Associates, of Miami, has been retained to assist in market research and consumer studies. It is intended that the development team also f include minority engineering, landscape architec- ture and leasing representation. Lists have been compiled of minority firms in these areas. Immediately following designation as the developer of Bayside, Rouse will complete its 97 discussions with and selection of the appropriate firms. (D) Construction Contracts: This proposal targets at least thirty-five percent (35%) of the total construction contract value to be let to minority contractors, including subcontracts and labor employment. Also targeted is at least fifty percent (50%) of the construction jobs being filled by minority workers. The following efforts will be under- taken to implement this minority participation during construction: o Designate specific trades for competitive bidding among minority subcontractors, such as excavation and earth work; landscaping; tile; painting and concrete finishing. o Encourage joint ventures between Onite and minority contractors. lhis sort of encourage- ment and assistance achieved real results in the Rouse Company's Phase II of The Gallery in Philadelphia, which will open this Fall. o Provide labor contracts with specific trades whereby the General Contractor will utilize local minority labor force from the community with the highest rate of unemployemnt. o Break up subcontract packages into smaller amounts to encourage Latin and Black contractor - bids, a method which Rouse used recently with considerable success in Philadelphia on its Gallery II project. 98 o Waive bonding contracts for $100.000 or less for minorities where necessary. This kind of assistance helped Rouse exceed its goals at Harborplace and Gallery II. o Establish a procedure whereby the General Contractor may award contracts to minority firms if the minority contractor's bid is not the low bid. o Upon completion of services, the developer or General Contractor will assist the minority contractors, when necessary, with interim payments and cash draws upon completion of specific segments of the contract in an effort to assist them with their cash flow. Based upon its experience with this kind of effort at Harborplace in Baltimore and The Gallery II project in Philadelphia, The Rouse Company feels such assistance will facilitate minority participation throughout the construction period. o Rouse and General Contractor will offer to every minority subcontractor his best influence, or discount, in the purchase of supplies or materials for use on the project with the intent of permitting minority subcontractors the maximum price advantage in bidding. o Rouse and General Contractor will, upon request, offer technical assistance to minority subcontractors to permit them to develop managerial skills necessary to coordinate their 84-58s 99 work with the ongoing construction management of the project. o Encourage the purchase of materials, supplies and equipment from minority -owned businesses, or through agents and outlets in the minority community. o Select members from the minority community, The Rouse Company, the general contractors and the City of Miami to implement a monitoring mechan- ism to assure full compliance in each of the above areas. (E) Employment: This proposal targets at least seventy-five per- cent (75%) of the tenant employment openings to be filled by minorities. While it is recognized that The (louse Company cannot require individual merchants to ri)eet particular quotas on their staffs, the folloOnq program k•rhich has been highly successful in other Rouse projects in Baltimore, Philadelphia and New York, will be implemented: o The Bayside Referral Service will be located on the project site, staffed by employment specialists or City employment personnel who will screen applicants. o All merchants and businesses will be strongly encouraged to make known their staffing requirements to the Referral Agency. 84-58S. ....-�.,..,.:.,..,.:,.,�-...,......a.-,.,,.a-s.�,.�.wu:.:..,...,:. ...::: .......r.::�.: ���amst.,4:�;. .w.'+n �s,.c��a .Y�_;-.:, ,•..-... „ �..:. .. .:.: 100 o Job opportunities in the project's businesses will be given publicity within the minority communities, together with the services of the Bayside Referral Service. (F) Ownership of Retail Businesses: The Rouse Company considers it of primary importance at Bayside, as at its other urban retail centers, to obtain the highest possible percentage of minority -owned businesses in the completed project. It is recognized that the setting of specific quotas could prejudice individual lease negotiations. In addition, a quota which is not achieved will result in vacancies which can have a detrimental effect on the entire project, including the minority -owned businesses. However, these factors do not preclude the vigorous pursuit of the following program: o To provide a set aside of not less than fifty percent (50%) of the number of tenants in advance of the leasing process to be owned and operated by minority tenants. The purpose of this measure is to ensure that the minority - owned businesses will be so located within the premises as to gain the benefit of the primary traffic areas. o Specific high volume, proven successful, leas- ing categories will be set aside for minority tenancies prior to the leasing process. This will ensure a greater opportunity for success for minority tenants. 84-585_ �x 101 o Provide joint venture opportunities for minority merchants with buy-out options over specified times. This effort was first implemented by The Rouse Company at Harborpiace and has been credited with attracting the large number of talented Black merchants to that project who otherwise would not have had the necessary financing or staying power. - o Arrange venture capital for new businesses. The Rouse Company has an officer of the company primarily responsible for arranging such financings. At Harborplace, and again at the South Street Seaport in New York and The Gallery in Philadelphia, The Rouse Company arranged for money to be made available from , City funds through low -interest loans from large commercial banks to minority -owned businesses. o Provide a portion of leasehold improvement and capital equipment costs to start new businesses. F o Provide technical and business assistance, such as advice on financial packaging, merchandis- ing, store design and layout, lighting, staffing and marketing. o Utilize existing local minority business assistance programs such as the Business Assistance Center, Economic Development Corporation of Dade County, Miami Capital Corporation and the Business Assistance Center Consortium. 84--585. a 102 o Implement a communiciations program with the minority business community to make known available opportunities and to identify pros- pective minority tenants. Such a program was very rewarding in attracting minority businesses at Harborplace. o Enlist the support of local financing institu- tions in providing the necessary financial assistance, loan packaging and other technical assistance to prospective minority businesses. o Conduct a public relations campaign within local minority communities to broaden awareness i of business opportunities in the project. (G) Management and Operations: The Rouse Company will target at least seventy- five (75%) of project operation positions and at least fifty percent: (50X) of the key management positions at Bayside to be field by minority individuals. Ulith respect: to the on -.site manage- ment team, Rouse Will identify five supervisory positions within project management, security, accounting, engineering, maintenance and promo- tion. These key decision -making people will be recruited from the Miami community and hired immediately following selection as developer of Bayside and completion of the lease and other necessary agreements with the City of Miami. They will then be trained by The Rouse Company in its existing urban projects, and prepared to move into their management positions at Bayside when the project opens. &Lybrand certified public a000untants Mr. David Weaver Chairman Bayside Review Committee c/o Intercap Investments 800 Brickell Avenue Miami, Florida 33131 Dear Mr. Weaver: 1 S. E. 3rd Avenue In principal areas of the world (AmeriFirst Building) Suite M Miami, Florida 33131 telephone (305) 35"363 May 23, 1984 In response to your request, we have reviewed the methodology contained in the April 30, 1984 "Proposed Language For Annual Rental Payments To The City; £ayside Specialty Agreement With Rouse Coiiipany.11 It appe,:i.r:., that the new formula provides the City with returns greater than those offered in the original Rouse 'Plan B' i,bile retaining the low risk features of the original Rouse 'Plan A'. Our analysis was constrained in four ways: - The model constructed for review of the original proposals was used as the basis for this analysis. Rental Income in the original proposals was estimated to increase at a stable rate of 7% per annum beginning in the fourth full year of operation. - The review of the returns was restricted to revenues generated by the Specialty Center without Parking Revenues and without considering returns to the Foundation. Estimates of sales, expenses and revenues contained in the original Rouse proposal were used in order to compare the original proposals (A and B) to the current proposal. &Ly�rand avow awoumants Mr. David Weaver Chairman Bayside Review Committee c/o Intercap Investments 800 Brickell Avenue Miami, Florida 33131 i S. E 3rd Avenue (AmeriFirst Braid)ng) Suite 29M Miami, Florida 33131 telephone (305) 35B-M May 23, 1984 in WirO al areas d the world Dear Mr. Weaver: In response to your request, we have reviewed the methodology contained in the April 30, 1984 "Proposed Language For Annual Rental Payments To The City; Bayside Specialty Agreement With Rouse Company.11 It appears tl)at the ncnq forriula provides the City with returns greater than tl)ose offered in the original Rouse 'Plan B r while retaining the low risl: features of the original Rouse 'Plan A'. Our analysis was constrained in four ways: The model constructed for review of the original proposals was used as the basis for this analysis. Rental Income in the original proposals was estimated to increase at a stable rate of 7% per annum beginning in the fourth full year of operation. - The review of the returns was restricted to revenues generated by the Specialty Center without Parking Revenues and without considering returns to the Foundation. - Estimates of sales, expenses and revenues contained in the original Rouse proposal were used in order to compare the original proposals (A and B) to the current proposal. MOT I ON 5 84��-5585 . Mr. David Weaver Chairman Bayside Review Committee Page Two Only the first fifteen years of the project were analyzed under the various alternatives. This period for analysis was considered adequate as all cost and revenue variables are assumed to have stabilized during this period and this period is sufficient for illustrating the magnitude of the differences between the proposals. The current proposal stipulates that guaranteed base rent will be $325, 000 in years 1 & 2; 4650,000 in years 3 through 6; and $1, 000, 000 in years 7 through 35 (and during subsequent option years, if options a.rc: exercised). In addition, the proposal provides for the City to receive a 35� shore of tl�e net cash flow available for distribution (Less guaranteed base rent). In return for this higher guaranteed base and greater share in net cash flow, the Rouse Company has proposed a formula allowing them to recover capital required to meet the guaranteed base rent in years when this guarantee exceeds 35% of the net cash flow available for distribution. Under this proposal, an interest earning, cumulative account would be created. This account would have the following features: - A positive balance would occur when 35% of net cash flow minus the guaranteed base rent is negative; that is, when the guaranteed base rent exceeds a 35� share of net cash flow. Positive balances in this account would earn interest at 11% per annum. ©T ® pj84-584 84 85 _- ��� e Mr. David Weaver Chairman Bayside Review Committee Page Three In years when a 35% share of net cash flow exceeds the guaranteed base rent, the cumulative account would be reduced. - When the cumulative account reaches zero, the City would then receive the difference between the guaranteed base rent and a 35� share of net cash flow. During the fifteen year study period, our -analysis indicates the following reoults (expressed i.n terms of net present values assuming a 1.07 di.:.,count factor and expr°essed in $000's ): - Proposal 'A' -L.s estimated to result in returns to the City valued at $5, 396• Of this amount, $4, 944 would be in the form of guaranteed base rent, $452 would depend on distri- butions from net cash flow. - Proposal 'B' is estimated to result in returns to the City valued at $7, 370. Of this amount, $1,902 would be in the form of guaranteed base rent, $5,468 would depend on distributions from net cash flow. - The April 30, 1984 Proposal is estimated to result in returns to the City valued at $7,626. Of this amount, $5, 518 would be in the form of guaranteed base rent, $2,108 would depend on distributions from net cash flow. _ MOT i o N 84�584 84 -585 Mr. David Weaver Chairman Bayside Review Committee Page Four It should be noted that the returns from the new proposal would become increasingly more favorable after the first fifteen years as the percent of net cash flow becomes increasingly more important under all three proposals. Also, it should be noted that this analysis is neutral (within a wide range of values) in regards to the discount rate that is used in calculating net present values . The new proposal presents the City with an option that appears significantly better than either of the t.i;o original proposals both in terms of maximizing overall returns and in ziiinimizing risk (that is, maximizing the gua.rantccd return component). We trust that this information serves your purposes. If you have any questions, please contact Ms. Sharon C. Brown, Partner in our Miami Office. Very truly yours, Ode 100"Oftd.0 oT i o pj84-�584 84-585 Comparison °fRouse Returnspto Proposals For Calculati (5000's) Year Base Plan 'A' Cash Flow Tota Rent Return Return 1 650 0 650 2 650 0 650 3 650 0 650 4 650 0 650 5 650 0 650 6 650 0 650 7 650 0 650 8 650 0 650 9 650 0 650 10 650 0 650 11 650 94 744 12 650 205 855 13 650 325 975 14 650 452 11,102 15 650 589 1,239 NPV(1) 4 t994 452 5,396 Flan °B' 'Base Rent as taw Return ota Return 250 0 250 250 0 250 250 0 250 250 191 441 250 341 591 250 516 766 250 703 953 250 903 1,153 250 1,117 19367 250 1,346 11,596 250 1,590 1,840 250 1,851 2,101 250 2,130 2,380 250 2,427 2,677 250 2,_ 2,995 1,902 5,468 7,370 (i)NPV - Net present value based on a 10% discount factor 4-30-84 Plan -Base Rent as °�' Return Return 325 0 325 325 0 325 650 0 650 650 0 650 650 0 650 650 0 650 1,000 0 19000 1,000 0 19000 1,000 0 1,OOo 1, 000 0 1,000 1,000 83 1,083 1,000 19183 29183 1,000 1,480 2,480 1,000 1,798 21,798 1 {�00 2,138 3,138 59518 2,108 71,626 , n,��nvmniiioippi�sMN!ggn1EA?6SI?R791i�'W����@°��i��"�3-rPF , �. CITY OF M 4ff v -- BAYSIIIE FAT B:BAY 11-B F7NAMAL PM=CW OF ANNUAL RENTAL 70 RE CITY AS OF MAY 22, 1984 (O00's 0=) PFDJFI✓'TED ANNUAL NCT CTTY'S 70TAL CTIY'S RE'n.1RN PER CAS AVAI1AME PAMCIPATION ANNUAL DLL M ACRE ( 2 RENTAL INCTm CITY' S Em IN NET 1NOM CITY YEAR YEAR # (1) MR RENT TILSIR=CN 9VU MSE RENTAL RMIE AMOUNT pum 1986 0 3,233 163 379 0 163 $41 4% 1967 1 14,797 325 124 0 325 81 99 1988 2 16,398 325 556 0 325 81 7% 1989 3 17,797 650 970 0 650 163 13% 1990 4 19,083 650 1,440 0 650 163 1.2% 1991 5 20,467 650 1,942 30 650 163 11% 1992 6 21,956 650 2,479 218 650 163 1C17. 1993 7 23,560 1,000 2,789 0 1,000 250 157. :?A 8 25,288 1,000 3,401 190 1,000 250 14% 1995 9 271148 1,000 4,055 419 1,000 250 13% 1996 10 29,151 1,000 4,753 663 1,000 250 1V 1997 11 31,483 1,000 5,664 982 1,266 317 14% 1998 12 34,002 1,000 6,647 1,327 2,327 582 237. 1999 13 36,722 1,000 7,710 1,698 2,699 675 2-V. 2000 14 39,650 1,000 8,857 2,100 3,100 775 267 2001 15 42,C-a2 1,000 10,096 2,534 3,534 8B'+ 287. 2002 16 46,259 1,000 11,435 3,002 4,002 1,001 297 2003 17 49,950 1,000 12,880 3,503 4,503 1,127 3017. 2004 1.8 53,9:j 1,000 14,441 4,054 5,0Y4 l,2cu 39. rJ5 19 55,273 1,000 16,127 4,645 5,645 1,411 33% 6 20 62,935 1,000 17,948 5,282 6,2r32 1,571 340 21 67,970 1,000 19,914 5,970 6,970 1,743 35% W06 22 73,407 1,000 22,038 6,713 7,713 1,928 357 2009 23 79,280 1,000 24,332 7,516 8,516 2,L29 357. 2010 24 85,622 1,090 26,809 8,383 9,333 2,346 37% 2011 25 92,472 1,000 29,485 9,320 10,320 2,590 387 2012 26 99,870 1,000 32,374 10,331 11,331 2,833 387. 2013 27 107,859 1,000 35,494 11,423 12,423 3,105 397. 2014 28 116,488 1,000 38,865 12,603 13,603 3,401 39% 2015 29 125,807 1,000 42,504 13,877 14,877 3,719 4CP. 2016 30 135,872 1,000 46,435 15,252 16,252 4,063 4Cf. 2017 31 146,741 1,000 50,681 16,738 17,738 4,435 41% 2018 32 L58,481 1,000 55,266 18,343 19,343 4,836 41% 2019 33 171,159 1,000 60,218 20,076 21,076 5,269 42% 2020 34 184,852 1,000 65,566 21,948 22,948 5,737 42% 2021 35 199,640 1,000 71,342 23,970 24,970 6,243 427. 2022 Xi 215,611 1,000 61,061 26,153 27,153 6,788 437 2023 37 232,860 1,000 67,819 28,511 29,511 7,378 437. 2024 38 251,489 1,000 75,095 31,058 32,058 8,015 43% 2025 39 271,60B 1,000 82,953 33,250 34,806 8,702 437. 2026 40 293,337 1,000 91,439 36,079 37,778 9,445 43% 2027 41 316,803 1,000 100,605 39,135 40,986 10,247 W. 2028 42 342,148 1,000 110,504 42,434 44,451 11,113 44% 2029 43 369,520 1,000 121,195 45,998 48,193 12,048 447. 2030 44 399,051 1,000 132,741 49,846 52,234 13,059 447 2031 45 431,008 1,000 145,211 54,003 56,598 14,L% 44% AOMMATE VAUE CiF CTIY'S ANNUAL IN03C - $667,062 PIZMT VALUE OF CM'S AMTIIA. INME @ l(K _ $31,501 (1) Based on Rouse Proposal thro,�&h 19%, and 9% ire derr�fter. (2) Developrant will occur on four (4) acres of Bayfront Park, valued at $1,000,000. per acre. MOT i ()N.S84-584 84-580. " a ssaaasasaasaasas.a.ataaaaa aaaasa..aas.sscRs.casaa.et:.et.ecRica.:sctis.c.a.sarQResaQsaotRcanRaa...s CITY OF MIAMI - BAYSIDE PROJECT B%BAY-11-A FINANCIAL PROJECTIONS OF ANNUAL RENTAL TO THE CITY AS OF MAY 22, 1984 (000's OMITTED) a■. i a R .... R R. R. R a a. a a R R a. i R Q a. R R a R R R R Q li R a R. E i a Q i a a R t4 i. Q a t Q a a E t Q R Q R R Q lI Q. t t. R E t1� Q a R R t a O• i lQ@ S fF a Q R i i R R PROJECTED ANNUAL NET CITY'S TOTAL CITY'S RETURN PER GROSS CITY'S AVAILABLE PARTICIPATION ANNUAL DEVELOPED ACRE 13) RENTAL INCOME BASE RENT FOR IN NET INCOME CITY - ' YEAR YEAR 4 (1) (2) DISTRIBUTION OVER BASE RENTAL INCOME -------- AMOUNT PERCENT ---------------- ---- 1986 ------ 0 ----------------- 3,233 163 ----------------------------- -379 0 163 641 41 1987 1 14,797 325 124 0 325 81 81 2 16,398 325 556 0 325 81 81 l-: 3 17,797 656 970 0 650 163 13% 135;� 4 19,083 650 1,440 0 650 163 12% 1591 5 20,467 650 1,942 30 650 163 lit 1992 6 21,956 650 2,479 218 650 163 101 .1993 7 23,560 1,000 2,789 0 1,000 250 15% -1994 8 25,288 1,000 3,401 190 1,000 250 141 1995 9 27,148 1,000 4,055 419 1;000 250 131 1996 10 29,151 1,000 4,753 663 1,000 250 121 1997 11 31,463 1,000 5,664 982 1,266 317 14% 1998 12 34,002 1,000 6,647 1,327 2,327 5a2 231 1999 13 3C,72.2 1,000 7,710 1,698 2,690 675 251 2000 14 3e,('60 1,000 8,857 2,100 3,100 775 26% 2001 15 42,G32 1.,000 10,096 2,534 3,534 664 28% 2002 16 46'n" 3.,000 11,435 3,002 4,002. 1,003. 29% "3 17 69,960 l'000 12,880 3,508 4,500 1,127 30% 18 53,956 3,000 14,441 4,054 5,054 1,264 32% 5 19 58,273 1,000 16,127 4,645 5,645 1.,413. 33% :;,46 20 62,935 1,000 17,948 5,262 6,282 1,57) 34% 2007 21 67,970 1,000 19,914 5,970 6,970 1,743 35% 2008 22 73,407 1,000 22,038 6,713 7,713 1,926 35% 2009 23 79,280 1,000 24,332 7,516 8,516 2,129 36% 2010 24 85,622 1,000 26,809 8,383 9,383 2,346 37% 2011 25 92,472 1,000 29,485 9,320 10,320 2,560 38% 2012 26 99,870 1,000 32,374 10,331 11,331 2,633 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 3,01 391 2015 29 125,807 1,000 42,504 13,677 14,877 3,719 40% 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 4,435 411 '^18 32 158,481 1,000 55,266 t8,343 19,343 4,836 41% '-9 33 171,159 1,000 60,218 20,076 21,076 5,269 42% �0 34 184,852 1,000 65,566 21,948 22,948 5,737 42% 2021 35 199,640 1,000 71,342 23,970 24,970 ------- 6,243 ------- 42% ------- -------- AGGREGATE --------------- VALUE OF CITY'S ANNUAL • -------- INCOME a $263,292 aa.s.sst PRESENT VALUE OF CITY'S ANNUAL INCOME 9 10% a $23,971 ataasat (1) Based on Rouse Proposal through 1996, and 81 increase thereafter. (2) Base Rental is increased in Year 436 to the Average of the previous three years. (3) Development will occur on four (4) acres of Bayfront Park, valued at $1,000,000. per acre. MY GF MLAMi - MYSIDE PROJEI✓T B:BAY11-$ FMANa& PRO== OF ANNUAL R1 NTAL TO THE CTIY AS OF MY 22, M (O00's CMM) r PRCII.T= ANNUAL NET MY'S TOTAL MY'S REMN PEP, CAS AVADAU PARTIC1 TATION ANNUAL, 1 A (2) RENTAL INN E C LL 1 1' S FUZ IN NET BMIE Cm YEAR YEAR # (1) BASS FM DIS'DdBMCN OU BASE MNiAL 1NM E MINT MEW 1%6 0 3,233 163 379 0 163 $41 4% 4% 1987 1 14,797 325 124 0 325 81 87 9 198E 2 16,398 325 5% 0 325 81 7% E% 1989 3 17,797 650 970 0 650 163 m 19 1990 4 19,OB3 650 1,440 0 650 163 12% 16% 1991 5 20,467 650 1,942 30 650 163 11% 16% 1992 6 21,956 650 2,479 218 650 163 10% 167. 1993 7 23,560 1,000 2,789 0 1,000 250 15% 259 1994 8 25,288 1,000 3,401 190 1,000 250 NT. 25% 1995 9 27,148 1,000 4,055 419 1,000 250 m 25% i996 10 29,151 1,000 4,753 663 1,000 250 17z 25% 3997 11 31,483 1,000 5,664 982 1,266 317 14% 32% 1998 12 34,002 1,000 6,647 1,327 2,327 582 2r/ 58% 1999 13 35,722 1,000 7,710 1,698 2,698 675 25� 67% 2000 14 39,650 1,000 8,857 2,100 3,100 775 267, 78% "1 15 42.,832 1,000 10,0% 2,534 3,5-T4 M 291: &T. 2002 1.6 46,259 .1,000 11,435 3,002 4,01:? I'm 2T 10T 2003 17 49,9L-o 1,000 12,880 3,503 4, 1,327 i-4 115,� 2"4 1.8 53,95u 1,Ox 14,441 4,OY4 5,0 4 1,2„'+ :i:;'.% 126% 2005 19 58,273 3,000 16,127 4,645 5, 6145 ),1411 3' << 1417. 2006 20 62,935 1,000 17, %B 5,282 G, zi32 1, 5 71 31oc 157% 037 21 67,970 1,000 19,914 5,970 6,970 1, 7b3 3-1i I 174% ;Aa78 22 73,407 1,000 22,038 6,713 7,713 3 ,923 3` T, 193� 2009 23 79,28) 1,000 24,332 7,516 8,536 2,129 Y,% 713% 2010 24 a5,622 1,000 26,809 8,383 9,K3 2,346 37- aZ 2011 25 92,472 1,000 29,485 9,320 10,320 2,590 35✓ 25a% 2012 26 99,870 1,000 32,374 10,331 11,331 2,833 3Ea 283� 2013 27 107,859 1,000 35,494 11,423 12,423 3,106 39ro 311% 2014 28 116,488 1,000 38,865 12,603 13,603 3,401 39% 34C. 2015 29 125,807 1,000 42,504 13,877 14,877 30719 4C2 372% 2016 30 B5,872 1,000 46,435 15,252 16,252 4,053 4Cff. 406% 2017 31 146,741 1,000 50,681 16,738 17,738 4,435 41% 443% 2018 32 158,481 1,000 55,256 18,343 19,343 4,635 417. 484% 2019 33 171,159 1,000 60,218 20,076 21,076 5,269 42% 527% 2020 34 184,852 1,000 65,%6 21,948 22,948 5,737 4V 574% 2C121 35 199,640 1,000 71,342 23,970 24,970 6,243 4a 624% 2022 35 215,611 1,000 61,081 26,153 77,153 6,788 43% 679% 2023 37 232,860 1,000 67,819 28,511 29,511 7,378 432 738% 2024 38 251,489 1,000 75,095 31.058 32,058 8,015 4�Z 801% 2025 39 271,608 1,000 82,953 33,250 34,W5 8,7M 432 87C1. 2026 40 293,337 1,000 91,439 35,079 37,778 9,445 4-'�/, 9= 2027 41 316,803 1,000 100,605 39,135 40,936 10,247 44�, 1,02 2028 42 342,148 1,000 110,504 42,434 44,451 11,113 442 1,111% 2029 43 359,520 1,000 121,195 45, 998 48,193 12, U48 44a 1, M5'% 2030 44 399,081 1,000 132, 741 49, M 52,234 13, M9 447 1,309. 2031 45 431,OOB 1,000 145,211 54,003 56,5% 14,150 44% 1,4= A+00MAM VAUE (r MIS AN'.11iIAL ,0a? FRM'T VAU3E a' MY'S AdNIIAL DUT @ 10� L $31,501 (1) Based on Rouse Propel tluuugh 1996, and 8% uicrease trier-eaftff. (2) Develop mt will occur on four (4) acres of Beyfront hark, valued at $1,000,000. per acre. 3 0 O C0 M t fnrrraf afaaaaa taaaatatmafaam afl�= rt\ltatmmtmtlaamtmt lm m':' 495mattmatmanamaaf.^-'1nn!laaaaaaaalalaflaaaaffa CITY OF MIAMI - BAYSi 03£CT B:BAY-11-A FINANCIAL PROJECTIONS OF ANNUAL :r. TO THE CITY AS OF MAY 22, 1984 (000's OMITTED) sfaafaafaaatasa a aatatamtamattlftlttmtasas saasaaasamaasa:alsatma aaa=naaa l:aaasafa PROJECTED ANNUAL NET CITY'S TOTAL CITY'S RETURN PER GROSS CITY'S AVAILABLE PARTICIPrATIO'l ANNUAL DEVELOPED ACRE (3) RENTAL INCOME BASE RENT FOR IN MET INCOME CITY ------------------- YEAR YEAR 4 (1) (2) DISTRIBUTION OVER BASE RENTAL INCOME AMOUNT PERCENT ---- 1986 ------ 0 -------- --------- 3,233 163 ----------------------------- -379 0 -------- 163 -------- --------- $41 41 41 1987 1 14,797 325 124 0 325 81 81 81 1988 2 16,398 325 556 0 325 81 81 81 1989 3 17,797 650 970 0 650 163 131 16% 1990 4 19,083 650 1,440 0 650 163 12% 161 1991 5 20,467 650 1,942 30 650 163 111 16% 1992 6 21,956 650 2,479 218 650 163 101 161 1993 7 23,560 1,000 2,789 0 1,000 250 15% 251 1994 8 25,288 1,000 3,401 190 1,000 250 141 251 1995 9 27,148 1,000 4,055 419 1,000 250 131 25% 1996 10 29,151 1,000 4,753 663 1,000 250 121 251 1997 11 31,483 1,000 5,664 982 1,266 317 14% 321 1998 12 34,002 1,000 6,647 1,327 2,327 582 231 581 1999 13 36,722 1,000 7,710 1,698 2,698 675 25% 67% 2000 14 39,660 1,000 8,857 2,100 3,100 775 26% 78% 2001 15 42,832 1,000 10,096 2,534 3,534 884 281 881 2002 16 46,259 1,000 11,435 3,002 4,002 1,001 29% 1001 2003 17 49,960 1,000 12,880 3,508 4,508 1,127 30% 113% 2004 18 53,956 1,000 14,441 4,054 5,054 1,264 32% 126% 2005 19 58,273 1,000 16,127 4,645 5,645 1,411 33% 141% 2006 20 62,935 1,000 17,948 5,282 6,282 1,571 341 157% 2007 21 67,970 1,000 19,914 5,970 6,970 1,743 351 174% 2008 22 73,407 1,000 22,038 6,713 7,713 1,928 35% 1931 2009 23 79,280 1,000 24,332 7,516 8,516 2,129 36% 213% 2010 24 85,622 1,000 26,809 8,383 9,383 2,346 371 2351 2011 25 92,472 1,000 29,485 9,320 10,320 2,580 38% 2581 2012 26 99,870 1,000 32,374 10,331 11,331 2,933 381 2831 2013 27 107,859 1,000 35,494 11,423 12,423 3,106 39% 3111 2014 28 116,488 1,000 38,865 12,603 13,603 3,401 39% 3401 2015 29 125,807 1,000 42,504 13,877 14,877 3,719 40% 3721 2016 30 135,872 1,000 46,435 15,252 16,252 4,063 40% 4061 2017 31 146,741 1,000 50,681 16,738 17,738 4,435 41% 4431 2018 32 158,481 1,000 55,266 18,343 19,343 4,836 411 4841 2019 33 171,159 1,000 60,218 20,076 21,076 5,269 421 5271 2020 34 184,852 1,000 65,566 21,948 22,948 5,737 42% 5741 2021 35 199,640 1,000 71,342 23,970 24,970 6,243 421 6241 ------- -------- AGGREGATE ------- VALUE -------- OF CITY'S ANNUAL -------- INCOME a ------- $263,292 ------- PRESENT VALUE OF CITY'S ANNUAL INCOKZ @ 101 t a amamta! $23,971 sass::! (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. 57 C. Y' CIR/CT/C.1 201 AFFIDAVIT UNDER FICTITIOUS NA11,1f, >II A;Tl,1TC 51-tV'fh.OF I'1,0I1lD:1 COUNTY OF DADF The undersi�`� , eunersnod to en a e to a business enterprise under the fictitious name of BAYSIDE SPECIALTY CE14TER �r,c,t(rtl a( _141AMARINA or 5th Street and Biscayne Bot.tl.evar_d in the city of __ Miami _ Dade County, Florida. CITY Those interested in said enterprise, and the extent of the interest of each, is as follows: Print or type name interest OF MIAMI Signature By 100y Howard Gar Address City Manag APPROVED AS TO FORM & CORRECTNESS: Signature c se arcia-Pedrosa r ity Attorney Sworn to and subscribed to before me, at day of 19 MiAMi REVIEW AND DAILY RECORD Published Daily except Saturday, Sunday and Legal Holidays Miami, Dade County, Florida. STATE OF FLORIDA COUNTY OF DADE: Before the undersigned authority personally appeared Dianna Stuver, who on oath says that she Is the Assistant to the Publisher of the Miami Review and Daily Record, a daily (except Saturday, Sunday and Legal Holidays) newspaper, published at Miami in Dade County, Florida; that the attached copy of advertisement, being a Legal Advertisement of Notice In the matter of Fictitious Name BAYSIDE SPECIALTY CINTER In the ............ I X .. X ...................... court, was published In said newspaper In the issues of Aug 5,12,19,26, 1983 Afflant further says that the said Mlaml Review and Daily Record is a newspaper publistrsd at Miami in said Dade County, Florida, and that the said newspaper has heretofore been continuously published in said Dade County, Florida, each day (except Saturday, Sunday and Legal Holidays) and has been entered as second class malt matter at the post office in Miami In said Dacia County, Florida, for a period of one year next preceding athe firbt publication of Ihk Attached copy of advertisement; nd afflanl further buys that she ties neither paid nor promised any psrson, I'm, or corporation any discount, rebate, commission or refund for the purpose of bocuring this advertisement far publication In the sbid newspaper. Sworn to and subscribed before me this 83 26thday 01.,........ ....Auq........, A.O.19....... .......F.-„ .. ........... Terris Franco Notary Public, State of Florida at Largo (SEAL) My Commission expires Dec. 21, 1985. MR 130 Address . Signature Address . Miami , this -�z y'6' #btary Pu liC, State of Florida at Large Mr � �C PWft'bF POlID- i- y Commission Expire @G1;Rt;: Ilir a c[1:Ir��L Irti�u N rr 22 198,5 NOTICE UNDER FICTITIOUS NAME I.AW NOTICE iS HEREBY GIVEN that the undersigned, desiring to I engage In business under the fic- titious name of SAYSIDE SPECIALTY CENTER at numbet 5th Street & Biscayne Boulevard, in the City of Miami, Florida, intends to register the zaid name with the Clerk of the Circuit Court of Dade County, Fiotida. Dated at Miami, Florida, this 41h day of August. 1983. CITY OF MIAMI by: Howard Gary, City Managiir Jose Garcia -Pedrosa i Attorney for Applicant i CITY OF MIAN I ATTORNEY'S OFFICE 169 East Flagler Street Suite 1101 Miami, Florida 33131 579.6700 815.12-19.26 M83.OB0531 •LLJNLEC Ih OMCIAt 6EG01t(ja 1a% Of GAEa Cu( 11r, f.oA:,.A. WORD Yfa'FUE) ZUC<lAI-U)1'. PI : l }.:EIL � i�ii il��dl�lil�d��lll�lluii�lValul Vlle�@�ihlV�i����'" p ���`F III ��� ��•7 � � , I yil� �wu w.................r.fr...w...w....+.....+.........ma=^�+n*+mm�+e.......... s..lrr'.. 1....... ................. as... Baas... s' Lj�) CITT 0T ";9iAll ' SID^ PROJECT 3:3AY-12TX MISCELLA�a"OU0, R ''.", 3.. PROJECTIO71 A3 OR VAY 23, 1984 rr..rf..r..r...w.www..w.w..I.................................... r................ .............. ......ww.rrww.rr.r.r..aa.awusfore TYPES OF REVENUE 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 A. REVENUE TO THE CITY OF KIAXI ---------------------------- AD VALOREM TAXES 200 801 841 883 927 974 1,022 1,073 1,127 1,183 PARKING0 100 300 330 363 399 439 483 531 585 AREA A-5 - BASS RENTAL 13 50 50 50 50 50 50 50 50 50 AREA A-5 ADDITIONAL RENTAL 0 0 0 100 108 117 126 136 147 159 MERCHANTS LICENSES 8 30 33 36 40 44 48 53 58 64 UTILITY PEE A UTILITY TAR - POWER 25 328 361 397 436 480 528 581 639 703 UTILITY FEE/UTILITY TAX - TELEPHONE 5 48 53 58 64 70 77 85 94 103 COLLECTION FEE 09 SALES TAX 0 0 0 1 1 1 1 2 2 --------------------------------------0--1,-357 t,638 1,855 1,989 2,135 2,292 2,463 2,648 - 40,634 652,04t 2,848 252S ...... ..... ff.rr f.rrf rfrrr r.rf. ..... P.P. SUR I. RITSNOE TO DADE COUNTY A STATE ------------------------------ CONNIVED COOITI ?AXIS 279 1,116 1,171 1,230 1,291 1,356 1,424 1,495 1,570 1,648 SALES TAX - CITY RENTAL a 16 16 33 33 33 33 50 50 50 ------ ------ ------ ------ ------ ------ ------ ------ ------ ------ 19,611 211,788 287 1,132 1,188 1.262 1,324 1►388 1,456 1,545 1,620 1,698 ... r .. • .. . .. f ... r r r r r. r r r r r. r r r r r r .. ! r .... f f f. r .. ! .. r ..... r r r r r ..rrr ..rrr ..rrr .. r r r r r r ... r .. f .. f f f f f f. f .. f. r f!! f f .... f f. f. f .. r 1996 1997 1998 1999 2000 2001 2002 2003 2004 -2005 -2006 _2007 -2008 -2009 --------- . 1,242 1,305 1,370 1,438 1,510 1,586 1,665 1,139 1,748 1,253 1,836 1,378 1,927 1,516 2,024 1,668 2,125 1,835 2,231 2,Ot8 2,343 2,220 643 707 778 856 942 1,036 50 50 50 50 50 50 50 50 50 50 171 50 185 50 200 50 216 50 233 252 272 294 317 343 370 400 432 466 244 IiM" 71 78 86 94 1,029 104 1,132 114 1,245 125 1,370 138 1,507 152 1,657 167 1,823 183 2,005 202 2,206 222 2,426 2,669 1 1 773 t13 850 t24 935 137 151 166 182 201 221 243 267 294 9 323 10 355 391 2 2 3 4 5 5 6 7 8 8 -7,950 ____i2 ----i3 3,065 ..... -3 302 , ..... 3 559 , ..... -3 838 , .w..w 4'341 • .®,. ..- 4.si0 ... .. . ., 4,828 ..2.. .swws 5.... ..... asap ..... aa• . n 7,7•t6 8,396 awaww 0 .. ... ...... . ...... '.^�5s'.r?��•'Y!, ..:. 1PI,�°7'4�^4!,'�+'@u'�E551`S7i�Pi'� '�y,lt�.�r�+�,n"i'vV.M"� •c,.�.,.m;mrm.�rerna•,„�+ llllilllhI lilii�illiiiVIIiIIIIhiVlliI�de�%I�Illiiilli�itl'� 1,731- 1,817 1,908 2.003 2,104 2,209 2,319 2,435 2,557 2,685 2,819 2,96u j,Iun 50 63 116 135 155 177 200 225 253 282 314 349 386 426 ------ ------ ------ ------ ------ ------ ------ ------ ------ ------ ------ ------ ------ ------ 1,781 1,880 2,024 2,138 2,259 2,385 2,519 2,661 2.810 2,967 3,133 3,308 3,494 3,689 .................................... ... ......................... r r .. r r/. w w r r w w. w. a w r ..Samoa.. .......a..a........... ............. .........wrw■........ .w.r..ww.............................................. ....w.........wrsaswa..aarrww...swwsww 2010 2011 2012 2013 2014 2015 20t6 2017 2018 2019 2020 2021 2022 2023 ----- ----- ----- ----- ----- ----- ----- ----- ----- ----- ----- ----- ----- ----- 2,460 2,583 2,712 2,848 2,990 3,140 3.297 3,462 3,635 3,816 4,007 4,207 4,418 4,639 2,442 2.686 2,955 3,250 3,575 3.933 4,326 4,759 5,235 5,758 6,334 6,968 7,664 9,431 50 50 50 50 50 50 50 50 50 50 50 50 50 50 503 544 587 634 685 740 799 863 932 1,006 1,087 1,174 1,268 1,369 269 295 325 358 393 433 476 523 576 633 697 756 343 927 2,936 3,229 3,552 3,908 4,298 4.728 5,201 5,721 6,293 6,923 7,615 8,375 9,214 10,135 430 473 520 572 629 692 761 638 921 1,013 1,115 1,226 1,349 1,.04 14 15 17 19 20 22 24 27 29 32 34 37 41 44 ------ ------ ------ ------ ------ ------ ------ ------ ------ ------ ------ ------ ------ ------ 9,104 9,876 10,719 11,638 12,642 13,738 14,935 16,242 17,671 19,232 20,939 22,805 24,846 27,079 • w ... . w w. w .. w .. . v ... ..... w a w a. .. r. w .0000 Samoa w w w w w .... . ..... ..... --- .. 3,426 3,598 3,778 3,967 4.165 4,373 4,592 4,821 5,062 5,316 5,581 5,860 6,153 6,461 469 516 567 621 680 744 813 887 967 1.054 1,147 1,249 1,338 1,476 ------ ------ ------ ------ ------ ------ ------ ------ ------ ------ ------ ------ ----- ----- - 3,896 4,114 4,344 4,588 4,845 5,117 5,404 5,708 6,030 6,369 6,729 7009 7,511 7,937 .www.........................................................wraw.wwwww. w w ... w ... w .... w............................................... ■ .... w w w. w 2024 2025 2026 2027 2028 2029 2030 2031 ----- ----- ----- ----- ----- ----- ----- ----- 4,871 5,114 5,370 5,638 5,920 6,216 6,527 6,854 9,274 10,201 11,221 12,343 13,578 14,936 16,429 18,072 50 50 50 50 50 50 50 50 1,479 1,597 1,725 1,863 2,012 2,172 2,346 2,534 1,020 1,122 1,234 1,358 1,494 1,643 1,807 1,988 11,149 12,264 13,490 14,839 16,323 17,955 19,751 21,726 1,632 1,795 1,975 2,172 2,390 2,6219 2,892 3,181 48 52 57 61 67 72 78 85 ------ ------ ------ ------ ------ ------ ------ ------ 29,522 32,196 35,122 38,325 41,833 45,671, 49,881 54,489 6,784 7,123 7,480 1,889 7,854 2,049 8,246 8,659 9,092 9,546 -1_603 -1_740 ------ ------ 2,223 2,410 2,612 2' 830 8,387 8,864 9,369 9,903 10,469 11,068 11,703 12,376 0 BUSINESS COUNSELING, INC. STRATEGIC PLANNING AND R4ARKETING 1110 Srick4AfT.i F jr . Miami, Florida 33131 ���133667 198411AY 24 All fl: 26 May 22, 1984 RAL"tl G. 0?41 (;IL CITY CLERK CITY OF MIAMI. FLA. Mr. David Weaver, Chairman Intercap Investments, Inc. 800 Brickell Avenue Miami, FL 33131 Dear David: I have reviewed and evaluated the Lease Agreement for the Bayside Specialty Center which is to be submitted for the City Commission approval and have the following evaluation comments: I. Economics A. The Minimum Base Rental negotiated produces $75,- 000 more in each of the first two years than pro- vided for in the developer's proposal for Alter- nate B. In each of the next four years there is the same higher Minimum Base Rental of $650,000 annually provided for in the developer's proposal for Alternate A, both as originally submitted by Rouse. For the balance of the first 35 year term, or 29 years, the 14inimum Base Rental is $1,000,000 annually, or $350,000 greater per year than pro- vided for in the developer's Alternate A proposal. Extrapolating from this and considering the Minim- um Base Rental indicated for- years 7 through 35, the combined 11inimum Base Rental available to the City for the entirety of the 35 year terra is $10,- 000,3000 greater than provided for in the develop- er's Alternate A plan originally submitted. B, The Percentage of Net Income Available, negotiated at the 35% rate is drawn from the developer's or- iginally submitted Alternate B, which was tied to the lower $250,000 Minimum Base Rental. The combined increased Minimum Base Rental and Per- centage of Net Income Available offer the best of the two originally submitted Alternatives. More i_prportant, the 35% of Net Income Available should safeguard more effectively the Minimum Base Rental and reduce the potential for "credit" contributions to the "Cumulative Credit Balance Account" in the early years. II. General 84-585 84-584 LEERS BUSINESS COUNSELING, INC. May 22, 1984 Mr. David leaver Bayside Evaluation Page Two It should be said that the clarity of the text of the Agreement and its terms and conditions is superior to that of any similar agreement I have previously obser- ved. It is a model for future agreements. The protections for the City included in the terms and conditions affecting tenant quality, proof of develop- er's income sources, etc. are realistic and assuring. Assumptions of economic factors measuring the income are based upon the developer's submitted projections of tenant rental income and the City's derivatives of that income, not inclusive of any Contribution for the Park or any income from the Parking Garage facility. The intensive negotiating efforts over recent months have produced a Lease Agreement which fairly considers the land value of the project's property, the appropriate income to the City and a fair return for the developer's equity and participation. This now completed process is rewarding as the successor ac- tion to the earlier decision of the Bayside Review Committee on which I was privileged to serve; and my participation as the Consultant member of the Negotiating Committee is like- wise gratifying. It is my judgment that the City Commission, in its review, and in its wisdom should support the Lease Agreement now sub- mitted. "nc y, Herbert Alan Leeds HAL:ms 84-585 84-584