HomeMy WebLinkAboutR-82-0219r
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RESOLUTION NO
82-219
A RESOLUTION AUTHORIZING THE CITY MANAGER
TO EXECUTE AN AGREEMENT, IN SUBSTANTIALLY
THE FORM ATTACHED HERETO, WITH FMG, INC.
FOR MANAGEMENT AND OPERATION OF THE CITY
OF MIAMI/UNIVERSITY OF MIAMI JAMES L. KNIGHT
INTERNATIONAL CENTER CONVENTION CENTER;
FURTHER RESCINDING ALL PROVISIONS OF
RESOLUTION NO. 81-804 ADOPTED SEPTEMBER 24.
1981, IN CONFLICT HEREWITH.
WHEREAS, the Convention Center of the City of Miami/
James L. Knight International Center is scheduled for opening in
1982; and
WHEREAS, funds are to be provided in the operational
budget for the Convention Center based on anticipated revenues as
supported by the feasibility study performed by the firm of Laven-
thol and Horwath for the Center's original Bond Issue; and
WHEREAS pursuant to the authorization of Resolution
No. 81-804, dated September 24, 1981, various meetings have been
held with the University of Miami, the Center's Advisory Committee,
and the Hotel Developer resulting in the attached proposed agreement;
NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF
THE CITY OF MIAMI, FLORIDA:
Section 1. The City Manager is hereby authorized to
execute an agreement, in substantially the form attached hereto.
which has been negotiated with FMG, Inc. for the management and
operation of the Convention Center of the City of Miami/University
of Miami James L. Knight International Center.
Section 2. To the extent that the herein resolution
conflict with or contradicts the provisions of Resolution No. 81-804,
adopted September 24, 1981, the provisions of said Resolution in
conflict herewith are hereby rescinded and are of no force and
effect.
CITY COMMISSION
MEETING OF
MAR 1 1 1982
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PASSED AND ADOPTED this 11 day of March, 1982.
MAURICE A. FERRE
F9URICE A. FERRE, MAYOR
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ATTEST:
RALPH G. ONGIE, CITY CLERK
PREPARED AND APPROVED BY:
ROBERT F. CLERK
DEPITTY CITY ATTORNEY
APW� AS TO A D CORRECTNESS:
CITY A TORNEY
0
MEMORANDUM
I
Yo Howard Gary DATE March 5, 1982
City Manager
FILE
FROM C. Dean Hofineister SUBJECT Proposed Resolution for Management
Executive Director Agreement with Florida Facility
City of Miami/University of Miami Management, Inc.,'for the Convention
J.L. Knight International Center Center of City of Miami/University
of Miami James L. Knight Inter- L
nationalCenter
It is recommended that the proposed Resolution
be adopted authorizing the City Manager to execute
an Agreement, in substantially the form attached
hereto and subject to review by the City Law
Department, with the firm of Florida Facility
Management, Inc., to manage and operate the City
of Miami/University of Miami James L. Knight
International Center Convention Center.
Purpose: Provide management and operational organization for the
Convention Center of the City of Miami/University of Miami
James L. Knight International Center.
Funding: Funds are to be provided in the operational budget for the
Convention Center based on anticipated revenues and
supported by the feasibility study performed by the firm
of Laventhol and Horwath for the Center's original Bond Issue.
Back-
ground: Pursuant to the authorization of Resolution No. 81-804,
dated September 24, 1981, various meetings have been held
with the University of Miami, the Center's Advisory Committee,
and the Hotel Developer to develop the attached proposed
agreement. The requirement for utilizing a professional
management firm for the operation and management of the
Convention Center is agreed to by the City in the Lease
and Agreement with Miami Center Associates, Ltd., Hotel
Developer, dated September 13, 1979. If any substantial
modifications to the proposed agreement develop after
Commission review these will be fully revealed and discussed
during the Commission hearing.
Agreement
Summary: An Agreement with initial term of five (5) years specifying
conditions of management and operation of the Convention
Center of the City of Miami/University of Miami James L.
Knight International Center among which are the following:
V*U=" .
82 - 29'
Mr. Howard Gary
Page 2
March 5, 1982
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A. Agreements between the City and the Hotel Developer,
City and University of Miami, Hotel Developer and
University of Miami are made attachments to this
management contract. (WHEREAS clauses pp 1-2)
B. Term of Agreement - five years initially, renewable
at City option for five year periods up to twenty
years. (Art. 1 page 2)
C. Firm's Duties and Responsibilities. (Art. 2, pp 2-5)
D. Compensation - initial term $140,000 annually with
adjustment based on Consumer Price Index. All operating
costs will be reimbursable expenses from City to firm.
(Art. 3, p. 5)
E. Fiscal Responsibility and Procedures. (Art. 4, pp 5-7)
F. Preparation and Presentation of Budget. (Art. 6, pp 8-9)
G. Authority of Executive Director (City official).
(Art. 8, pp 9-10)
H. Capital Improvements and Repairs. (Art. 11, pp 11-13)
I. Insurance Requirements. (Art. 12, pp 13-15)
J. Guarantee by Firm to City. (Art. 13, pp 14-15)
K. Hold Harmless Clause by Firm. (Art. 14, pp 15-16)
L. Booking Policies. (Art. 15, pp 16-17)
M. Applicability of Charter Provisions. (Art. 19, pp 18-19)
N. Termination Provisions. (Art. 25, pp 21-23)
0. Personnel and Non -Discrimination Clauses. (Art. 28, pp 23-24)
P. Procedure for Handling Income. (Art. 30, pp 25-26)
It is, therefore, recommended the City Manager be authorized to execute
the attached agreement with Florida Facility Management, Inc., to
manage and operate the Convention Center of the City of Miami/University
of Miami James L. Knight International Center.
Enclosure
cc: Cesar Odio
Law Dept.
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82-219
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rights for use and occupancy of each others areas for program events -
in the International Center; and
WHEREAS, the CITY requires the services of a private management
company to manage the Center in all of its activities and operations,
includingrental of space, advertising, promotion, marketing/sales, P g, p
events management, box office, public relations, procurement, main-
tenance, security, custodial and support services for conferences,
conventions, exhibitions, performances, special events, and any and
all convention events and support services taking place in the facility
as deemed necessary by the management company; and
WHEREAS, the FIRM has expressed a desire to perform the
required services for the CITY; and
WHEREAS, the FIRM, by reason of its expertise in facility manage -
went, is eminently qualified to manage and operate the center on
behalf of the CITY and the CITY contracts for the FIRM's services as
provided herein;
NOW, THEREFORE, in consideration of the mutual covenants con-
tained herein, the CITY and FIRM agree as follows:
1. TERM:
a. The term of this Agreement shall be for a period of five
(5) years commencing on 1982 and terminating
on 1987.
b. This term may be renewed for five (5) year terms up to
twenty (20) years at the option of the CITY, subject to the
existing requirements of law at the time of expiration of the
initial term.
2. SCOPE OF SERVICES.
The FIRM shall have full responsbility for management, operation
and maintenance of the Center, which shall include the performance of
the following, subject to controls and restrictions as stated else-
where in this Agreement and in an operational manual to be developed
and agreed to by the parties to this Agreement:
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82-219
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a. Temporary rental on behalf of the CITY of assembly
spaces within the facility;
b. Advertising and marketing;
C. Supervision of relations with news and entertainment
media of all types, including all negotiations and agreements
pertaining thereto;
d. Building and grounds operations and maintenance,
including, but not limited to, purchasing, payroll, fire preven-
tion, security, routine repairs, janitorial services and energy
conservation;
e. Event management, including, but not limited to, crowd
control, security, admission procedures, supervision of box
office, and servicing of users such as conventions and enter-
tainment;
f. Any and all matters that may be required to properly
merchandise, utilize and promote the use of the Center;
g. Authority to purchase and contract pertaining to the
Center, all of the following in accordance with the approved
budget:
1. Conventions, trade shows, meetings and banquets;
2. Entertainment;
3. Sports;
4. Consumer shows;
5. All other forms of activity and entertainment that can
properly be housed or exhibited at the Center;
6. Service contractors, such as security, cleaning,
electrical, etc.;
h. Maintenance of the Center and the equipment contained
therein in the condition received, wear and tear excepted, and
where possible and with budget permitting, through improved
maintenance, upgrading the condition of facilities.
i. Prior to accepting occupancy and each year thereafter,
at the time of submission of the annual budget to the CITY, the
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P 82-2I9
FIRM and Executive Director jointly shall prepare and submit to
the CITY an inventory of all CITY -owned equipment, stating
quantities, capacities, operational status, appearance and
recommendations for major maintenance or replacement. All losses
in inventory shall be documented by FIRM as soon as such losses
occur and the proper authorities promptly notified. FIRM shall
prepare and submit to the Executive Director a quarterly report
on maintenance and breakdowns of all major pieces of installed
and portable equipment.
j. Be responsible for the administration of all agreements
for use of the facilities, including but not limited to the
collection of all sums due from users and the general public for
the rental and use of the facilities. Subject to the prior
approval on a case -by -case basis by the Executive Director, the
FIRM is authorized and empowered and is granted the responsibility
to pursue all appropriate legal action as is necessary to collect
unpaid obligations and enforce all rights of the CITY, including
the pursuance of all legal remedies available for such purposes,
subject to the provisions of the City Charter. The CITY agrees
that the responsibility of the FIRM herein provided shall be
pursued in the name and on behalf of the CITY. In the event that
the City Attorney's Office does not represent the CITY's interest
in these -matters, selection of and expense for legal counsel
shall be approved in advance by the CITY.
k. The FIRM agrees to maintain a staff to provide services
as necessary to accomplish FIRM's specified responsibilities to
the CITY pursuant to this Agreement, all costs of maintaining
.1 such will be a reimbursable expense from CITY to FIRM. In
performing its obligations and meeting its responsibilities under
this Agreement, the FIRM agrees to recognize and comply with all...
obligations of the CITY to the University of Miami, under the
Agreement dated April 1, 1977, and the Lease to be entered into
pursuant to the provisions of the April 1, 1977, Agreement.
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1. The FIRM shall monitor all concessions operated in the
Convention Center by Miami Center Associates, Ltd. (Hotel Developer)
and report to the Executive Director periodically in respect to
the quality of the products, and adequacy of the services pro-
vided to the extent of the CITY's right to do so. The FIRM shall
investigate and report on complaints involving the concessions.
m. This Agreement establishes the duty and responsibility
of the FIRM as to the management, operations, and maintenance of
the Convention Center, and any person dealing with the FIRM has
the right to rely on the FIRM's power and authority with regard
to the use and occupancy of the Convention Center to the extent
prescribed in this Agreement. The FIRM shall not have authority
to encumber any real or personal property.
3. COMPENSATION
The CITY agrees to pay the following management fees to the FIRM
for its services in operating the Center.
a. The CITY agrees to an annual management fee of One
Hundred Forty Thousand Dollars ($140,000.00) payable in equal
monthly installments in advance, commencing on the day of
1982, during the initial term of this
Agreement. Said annual management fee shall be adjusted in
accordance with the Consumer Price Index (CPI) on July 1, 1982,
and will be adjusted annually in direct proportion to changes
in the CPI, based upon July 1, 1982, as the base CPI.
b. CITY and FIRM agree that at the end of the first full
year of operation, the parties will develop an equitable incen-
tive compensation agreement in addition to the management fee set
forth in Section 3a.
C. Compensation for all the FIRM's personnel including the
FIRM's facility manager, and all operating costs will be included
in the annual operating budget as reimbursable items from the
CITY to the FIRM.
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f82-�191
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4. FISCAL RESPONSIBILITY AND PERFORMANCE REVIEW
a. The FIRM agrees to render monthly on an agreed date, a
financial report to the Executive Director in a form developed
and from time to time revised by the FIRM and CITY.
b. The FIRM agrees, at the request of the CITY, to meet
with the Executive Director to answer questions relating to the
operation of the building and/or the financial report. In
addition, FIRM agrees (on a date to be agreed upon) following
each fiscal year (which shall correspond to the CITY's fiscal
year), to provide at the CITY's expense to the CITY a complete
financial report of the Center. Said yearly report will be
audited by a nationally recognized accounting firm acceptable to
the CITY and the FIRM; the accounting firm's audit report shall
be accompanied by a letter from said accounting firm expressing
its opinion as to the effectiveness of internal controls and
other related matters. At the option of the CITY and at its
expense, a six-month audit may be performed.
C. The FIRM agrees to use forms, accounting methods,
internal controls and procedures for its reports in a form
developed and from time to time revised by the CITY.
d. The FIRM agrees to provide itself with those forms,
summaries, schedules, and reports that it must.use as part of its
accounting methods and procedures.
e. The FIRM agrees to keep and maintain, at its office in
Miami, separate and independent records in a separate set of
books devoted exclusively to its Center management operations in
Miami. Said books, ledgers, journals, accounts, and records
shall contain all entries reflecting the business operations of
the FIRM under this Agreement. All of the foregoing records
shall be open for examination and audit by CITY -authorized ..�
personnel during FIRM's ordinary business hours. FIRM agrees
that all documents, records and reports maintained and generated
pursuant to this contractual relationship, shall be subject to
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82-219
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the provisions of the Public Records Law, Chapter 119, Florida
Statutes.
f. Within thirty (30) days after the end of each six (6)
month period during the term of this Agreement, an operating
statement reflecting all of the business operations, including a
statement on cash controls, of the FIRM in the management of the
Center under this Agreement is to be submitted to the CITY. The
costs of preparing such statements shall be reimbursable to the
FIRM as administrative expense under the annual operating budget.
g. The CITY may request additional financial or statistical
reports with respect to the Center, and FIRM agrees promptly to
provide same to the extent such reports are kept by the FIRM in
the normal course of its business. Reports not so kept shall be
funded as a reimbursable expense as approved by the City Manager.
It is agreed that such requests by the CITY will be reasonable
with respect to timing and repetition and included as operating
expense. Any additional personnel required may be employed pro-
vided funds for same are approved by the Executive Director.
5. EXPENDABLE SUPPLIES
a. The FIRM will be responsible for purchasing all expen-
dable supplies for the operation of the Center from funds provided
in the CITY approved budget. The FIRM will exercise prudent
judgment in the purchase of said supplies within budget guide-
lines.
b. To the extent the prices are competitive and it is cost
effective, the FIRM shall, whenever feasible, purchase such
supplies from bona fide small or minority businesses with residency
in Miami.
c. FIRM may purchase supplies from its subsidiaries and
affiliates, but in no event shall the purchase price exceed
prevailing competitive prices. The CITY shall be credited with
the full amount of any discounts or commissions obtained by the
FIRM on any of such purchases.
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► 82-219
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the provisions of the Public Records Law, Chapter 119, Florida
Statutes.
f. Within thirty (30) days after the end of each six (6)
month period during the term of this Agreement, an operating
a statement reflecting all of the business operations, including a
statement on cash controls, of the FIRM in the management of the
Center under this Agreement is to be submitted to the CITY. The
costs of preparing such statements shall be reimbursable to the
FIRM as administrative expense under the annual operating budget.
g. The CITY may request additional financial or statistical
reports with respect to the Center, and FIRM agrees promptly to
provide same to the extent such reports are kept by the FIRM in
the normal course of its business. Reports not so kept shall be
funded as a reimbursable expense as approved by the City Manager.
It is agreed that such requests by the CITY will be reasonable
with respect to timing and repetition and included as operating
expense. Any additional personnel required may be employed pro-
vided funds for same are approved by the Executive Director.
5. EXPENDABLE SUPPLIES
a. The FIRM will be responsible for purchasing all expen-
dable supplies for the operation of the Center from funds provided
in the CITY approved budget. The FIRM will exercise prudent
judgment in the purchase of said supplies within budget guide-
lines.
b. To the extent the prices are competitive and it is cost
effective, the FIRM shall, whenever feasible, purchase such
supplies from bona fide small or minority businesses with residency
in Miami.
C. FIRM may purchase supplies from its subsidiaries and
affiliates, but in no event shall the purchase price exceed
prevailing competitive prices. The CITY shall be credited with
the full amount of any discounts or commissions obtained by the
FIRM on any of such purchases.
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82-219
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6. OPERATING BUDGET
a. The FIRM agrees that each year on May 1 or a date
4
specified by the CITY, it will prepare and present a line item
budget for the Center, which budget will follow the existing CITY
budget process. Said budget shall include a projected income and
expense statement and projected year-end balance sheet and
statement of projected sources and applications of funds. Addi-
tionally, the budget shall include but not be limited to the
following detailed projections:
1. Gross revenues by department and sources;
2. Operating expenses by department;
3. Departmental incomes;
4. Administrative and general expenses;
5. Marketing, advertising and promotion expenses;
6. Energy costs; and
7. Repairs and maintenance.
b. It is understood that the FIRM, in accordance with
provisions to be agreed, shall be given a budget effective
(October 1) of each fiscal year. It is the intention of the CITY
to fund adequately the operation of the Center in accordance with
the level of activities generated, and the FIRM is not expected
to fund the operations from the management fee. The FIRM's
responsibility to manage, operate and maintain and perform its
other obligations shall be dependent on the CITY's responsibility
to approve sufficient operating funds. CITY further agrees that
its failure to provide such funding will relieve the FIRM from
its responsibilities and obligations to perform under this
Agreement. It is further understood that the FIRM will not
exceed any sums in excess of those amounts allowed in the approved
budget of the CITY. In the event that the FIRM does so over- ••
spend, it shall be responsible for said sum and shall reimburse
the CITY for said sum within thirty (30) days after the end of
each contract year, or the CITY may withhold said sum from the
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82 - 219
fees due the FIRM; provided, however, that the FIRM may exceed
the budget submitted for any line item or line items without
incurring responsibility or liability, so long as it does not
overspend the overall budget as submitted and such is approved in
advance by Executive Director. It is further understood and
agreed that the FIRM shall have the right to seek and a reasonable
right to receive additional sums for extraordinary expenses to
fund increased activity and revenue sources. Should such requests
become necessary, the FIRM shall receive said additional funds
only if approval for advancement of the same is given by the CITY
after submission to the CITY.
7. OPERATING FUNDS
The CITY will advance to the FIRM, at the beginning of each
contract year, an amount equal to one -sixth of the approved annual
operating budget for the Center. Thereafter, CITY will advance to
FIRM, on a monthly basis, such sums as are necessary to operate the
Center for the following sixty (60) day period.
B. AUTHORITY OF EXECUTIVE DIRECTOR
The Executive Director shall have all powers presently prescribed
by the City Commission and exercise such powers under the direction of
the City Manager, including but not limited to the following powers:
a. To establish in conjunction with the FIRM on a con-
tinuing basis, operations policy in the form of an operational
manual for the Convention Center, so that at all times the best
interests of the entire community and, to the extent possible,
the entire convention and tourism industry in Miami will be
represented.
b. Together with the FIRM, to review annually the per-
formance of the previous year to determine if the goals and
criteria jointly established by the FIRM and the Executive
Director on an annual basis, are being met and to promulgate such
policy as they shall deem necessary.
' 82-219
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c. To monitor the activities and expenditures of the FIRM
on behalf of the Convention Center to ensure that said activities
and expenditures conform to the policies set forth and to the
budget approved by the CITY.
d. To set a schedule of rents, rates, fees and charges for
the use or occupancy of and for furnishing services in connection
with Convention Center as recommended and submitted by a City -
appointed consultant, as required by the Center's Trust indenture
and incorporating recommendations from the FIRM. •
e. To review, approve or disapprove or change the annual
budget to be submitted to the CITY by the FIRM on behalf of the
Convention Center.
f. Prior to approval of the budget, to cause an annual
inspection of the Convention Center, all installed and portable
■ furniture and equipment and capitalized supplies, and any other
such item that is the property of the CITY to be conducted to
determine the condition of the same, to assess damages and file
insurance claims or seek reimbursement from appropriate parties.
g. Maintain in the CITY's offices at the Convention Center
a master reservation control of all meeting and function spaces
of the Hotel, University and CITY. Executive Director will
establish a standard reservation procedure, which will become
part of the operations manual.
h. All contacts between the CITY and the FIRM regarding
the administration of this Agreement shall be directly through
the Executive Director.
9. COVENANTS OF THE FIRM
a. FIRM agrees to exert its best efforts in managing and
operating the Center so as to minimize operating costs and
maximize revenues, subject however, to the limitations of the
operating budget and/or funds available.
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82-219
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b. FIRM agrees to be responsible for the administration of
all agreements for use of the Center, and shall exert its best
efforts to collect all sums due from users and the general
public for the rental and use of the facilities.
c. To the extent the CITY makes funds available, the FIRM
agrees to maintain the Center and its -facilities in the condition
received, reasonable wear and tear excepted.
d. The'FIRM agrees to provide services as -necessary to
accomplish FIRM's responsibilities pursuant to this Agreement;
provided, however, that any and all obligations of the FIRM under
this Agreement are subject to the CITY making available sufficient
funds to the FIRM.
10. COVENANTS OF THE CITY
a. CITY agrees that prior to the effective date of this
Agreement, it will provide to the FIRM a full and complete equip-
ment audit and certifications of warranties governing all equip-
ment contained in the Center. The CITY further agrees that as of
the effective date of this Agreement all of its warranties on
said equipment shall pass to the FIRM to be enforced by the FIRM
on the CITY's behalf.
b. CITY agrees that if, and to the extent, any possessory
interest tax or taxes which may be imposed or levied upon the
FIRM in connection with this Agreement, said taxes.shall be
reimbursable to the FIRM as an operating expense to the extent
permitted by law; provided, however, if for any reason CITY does
not reimburse such taxes, FIRM shall have the option to void this
Agreement. This shall not include corporate business taxes.
11. CAPITAL IMPROVEMENTS AND REPAIRS
The CITY will retain the responsibility for capital improvements
to the Center. The FIRM agrees to provide to the Executive Director.
on March 1 of each year, a schedule of items that can be reasonably
anticipated as necessary capital expenditures. The purpose of such a
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schedule is to allow the CITY to include such projects in its budget
for the ensuing year and to prepare and update a long range (five
year) capital expenditure budget. The FIRM's failure to list particu-
lar items
or projects shall
not be deemed
a waiver of CITY's responsi-
bility to
make such capital
expenditures.
"Capital expenditures"
means all expenditures for building additicins, alterations or improve-
ments, and for purchases of additional or replacement furniture,
machinery or equipment, the depreciable life of which, according to
accepted accounting principles is in excess of one (1) year. All
routine and minor repairs, maintenance, and equipment servicing shall
be the responsibility of the FIRM reimbursable to FIRM as operating
expense.
CITY shall be responsible for the costs of all repairs (structural
or non-structural, interior or exterior), maintenance and/or replace-
ment costs required to operate the Center and all its fixtures, signs,
displays, equipment, machinery, appliances, appurtenances, improve-
ments, alterations, systems (including but not limited to the plumbing
and electrical systems, wiring and conduits, heating and air conditioning
systems). Such repairs, maintenance and replacements, interior and
exterior, ordinary as well as extraordinary, and structural as well as
non-structural, shall be made promptly as and when necessary. All
repairs, replacements and maintenance shall be of a quality and class
at least equal to the original work. Any replacement of an item con-
tained on the inventory schedule shall be deemed the property of CITY.
FIRM shall advise CITY of necessary repairs and request that CITY make
the said repairs. CITY shall notify FIRM within fifteen (15) days of
receipt of the FIRM's notice to repair as to whether CITY wants the
repairs made. However, if such repairs are of an emergency nature,
FIRM may at its option make such repairs in accordance with the
following provisions.
In case of an emergency repair, the FIRM may proceed to make
same, in which case CITY shall reimburse FIRM for the full amount of
- 12 -
"82-219
the repair. An emergency repair is defined herein as the repair of a
condition which, if not accomplished immediately:
1. Creates a dangerous and/or unsafe condition at
the Center; or
2. Is needed to permit a scheduled event at the
Center to take place.
12. INSURANCE
The FIRM agrees to obtain insurance coverage as specified below,
and agrees to maintain such required insurance in force, as a reim-
bursable expense, during the life of this Agreement. No modification
or change in'insurance shall be made without ninety (90) days written
advance notice to the CITY.
a. Worker's Compensation Insurance - as required by
Chapter 440, Florida Statutes.
b. Comprehensive General Liability Insurance - with at
least a combined single limit for bodily injuury, and property
damage liability of $10,000,000 per occurrence. The Products and
Completed Operations and Contractual Liability exclusions shall
be eliminated. The policy shall be endorsed to include personal
injury liability coverage.
C. Automobile Liability Insurance - covering all owned,
non -owned and hired vehicles used in connection with the work, in
amounts of $1,000,000 per person - $3,000,000 per occurrence for
bodily injury liability and $3,000,000 per occurrence for pro-
perty damage liability.
d. The FIRM agrees to carry a Fidelity Bond in an amount
not less than $1,000,000 on all officers, employees, and agents
who have custody of or address to any revenues, monies or securi-
ties of the CITY in connection with the Center operations.
e. Professional Liability Insurance - with respect to
advertising, promotion and booking of the facilities, with
limits of $5,000,000 per occurrence.
f. The CITY shall be named as additional insured, as its
interest may appear in the insurance policies described in sub-
sections b and c hereinabove.
- 13 - 82-219
g. Additionally, the FIRM shall carry a $10 million
Insurance Umbrella -Type policy taking effect on top of the base
$10 million coverage required above.
All costs of insurance are reimbursable by the CITY to the FIRM
as an operating cost.
CITY, on date of execution hereof has provided to FIRM evidence
that it is either self -insured or has obtained insurance from the type
of insurance carrier noted above that will adequately protect against
property damage to the Center and all its contents, including fire
insurance, hurricane, wind, water, flood insurance and extended cover-
age. In the event CITY is self -insured for all or any part of this
coverage, it acknowledges it accepts total responsibility for any and
all losses and will not seek recovery against the FIRM.
All insurance policies required of the FIRM above shall be issued
in companies authorized to do business under the laws of the State of
Florida. As minimum qualifications as to management and financial
strength, the insurance company or companies must be rated no less
than "A" as to management, and no less than "Class V as to strength,
by the latest edition of Best's Insurance Guide, published by Alfred
M. Best Company, Inc., 75 Fulton Street, New York, New York.
The FIRM agrees to furnish Certificates of Insurance to the CITY
prior to commencing any operations under this Agreement, which Certi-
ficates shall clearly indicate that the FIRM has obtained insurance in
the types, amount, and classifications in compliance with this Article.
CITY shall, upon receipt of certificate of insurance notify the FIRM
within ten (10) days as to the acceptance of such insurance as meeting
all terms and conditions of this Section and any other requirements ..
contained herein relating to insurance coverage.
13. GUARANTEE
In addition to the insurance and bonding requirements FIRM will....••
guarantee their contracted obligations provided the aggregate amount
of liability which FIRM shall incur pursuant to such guarantee shall
- 14 -
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not exceed Five Hundred Thousand Dollars ($500,000.00). In considera-
tion of such guarantee, the CITY agrees that if for any reason FIRM
shall become liable to the CITY for any breach of contract CITY shall
have no, and shall not seek any, recourse against FIRM in respect to
such liability beyond the scope of such guarantee notwithstanding the
fact that FIRM may be inadequately capitalized and notwithstanding any
other law or rule or law that otherwise would afford to the CITY such
recourse. Limitations on said guarantee are acceptable to the CITY as
long as FIRM maintains in effect the insurance and bonding coverage
requirements subject to notice provisions outlined in Paragraph
hereof.
14. HOLD HARMLESS
a. The FIRM agrees to keep, defend, indemnify and hold
harmless the CITY from and against any and all costs,.liability,
damage or expenses of legal services, claimed by anyone by
reason of injury or damage to person or property directly arising
out of the FIRM's performance of services or as a proximate
result of the acts or omissions of the FIRM or its agents. -
b. The FIRM agrees also to assume the defense of, and
indemnify and hold harmless the CITY against and from, any and
all liens and charges of every nature and kind that may at any
time be established against said facilities and improvements, or
any part thereof, as a consequence of any act or omission of the
FIRM or as a consequence of the existence of the FIRM's interest
under this Agreement. Each party shall give to the other prompt
and timely written notice of any claim made or suit instituted
within its knowledge that in any way, directly or indirectly,
contingently or otherwise, affects or might affect the other
party; and both the CITY and the FIRM shall have the right to
participate in the defense of the same to the extent of their own
interest.
C. CITY acknowledges that FIRM had no involvement or
responsibility, either direct or indirect, in the architectural,
15 -
►82-219
R
1`l+r+1i`fiiia�?.�+a'F?Y.2i^,�n3t1'.�a+'!�jf...si'+,.,:-•..:la::hkt'ti'!Fi..�v:;•,••.='�'?':.5{,M{Mt+�k�"..il:r.' _ ..
• structural design and engineering or construction of the Center
and therefore releases FIRM of all liability for the structure,
design or equipment or claims thereunder.
15. BOOKING POLICIES
a. The parties recognize and acknowledge that the interest
of the CITY requires a booking policy that takes into account not '
only events which generate substantial direct revenues for the
Center, but also events which produce less direct revenue, but
generate significant transient occupancy tax and peripheral
economic benefits in the form of increased tourist revenues and
stimulate the general economy of Miami.
b. The City of Miami Convention Bureau will have primary
responsibility for marketing the Center for conventions and trade
shows, and to carry out this responsibility, will have control
over all bookings more than eighteen (18) months in advance. The
FIRM will assist the Bureau on an as -needed basis by providing
resource people to work with the Bureau and, when requested and
when budget appropriations permit, accompany them in their
solicitation efforts. The Bureau may also boot: conventions and
trade show events with less than eighteen (18) months' lead time
if the dates have not been confirmed to other users and in
coordination with the FIRM. Prior to committing any dates booked
by the Bureau pursuant to this Section, Bureau will confirm with
FIRM that the space can be properly converted, set up, equipped
and furnished on the dates and times user desires it. In the
event that a planned Bureau booking adversely impacts the FIRM's
approved operating budget, then FIRM shall notify CITY of the
extent of such financial impact. CITY must approve or disapprove
such contemplated Bureau booking. The FIRM may also book non -
convention and trade show events with more than eighteen (18)
months' lead time if dates have not been confirmed to other
users. Approval of the dates booked in this manner shall be
considered tentative until formally released by the Bureau.
- 16 -
82-219
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c. The FIRM shall have primary responsibility for and
complete control of marketing and scheduling the Center for all
"near -term" dates (18 months or less in advance) not utilized by
the bookings generated by the Bureau in order to generate addi-
tional income, and will have experienced personnel who will
diligently promote the use of these dales. Markets for "near -
term" dates will include locally and regionally oriented events
such as consumer shows, spectator sports and entertainment,
meetings and social functions and other special activities that .
can be properly carried on in the Center. The FIRM shall have
the right to promote events within the Center.
16. CONFLICTS OF INTEREST
a. The FIRM is familiar with the provisions of the Miami
City Charter and Code, Dade Charter and Code, and Florida Statutes,
and hereby certifies that it will make a complete disclosure to
the CITY of all facts bearing upon any possible conflict, direct
or indirect, with its performance that it believes any member of
the Convention Center Department or any other officer or employee
of the CITY now has or will have. Said disclosure shall be made
by the FIRM contemporaneously with the execution of this Agreement
and at any time thereafter that such facts become known to the
FIRM.
b. The CITY recognizes that the FIRM, or its affiliates
may enjoy indirect economic benefits from the operation of the
Center. However, the FIRM agrees that it will perform its
obligation under this Agreement in a manner consistent with the
best interest of the CITY. Additionally, the FIRM shall, upon
execution and approval of this Agreement, provide to the CITY a
listing of such known or anticipated ancillary income/ revenue
sources and their estimated annual amount. Said listing shall be,
updated on an annual basis no later than March 31 of each fiscal
year.
- 17 -
s2-219
17. COMPLIANCE WITH LAWS
The FIRM agrees to comply with all local, state, and federal
ordinances, statutes, rules and regulations; provided that the CITY
will cooperate to the extent necessary to enable compliance by the
FIRM.
The CITY will be responsible for obtaining all initial permits,
necessary to occupy and use the Center. Except for the foregoing
initial permits, the FIRM shall be responsible for obtaining any
local, state or national licenses and permits to enable it to do
business.
18. BUSINESS OF FIRM
a. The FIRM agrees not to enter into any similar manage-
ment agreement for the operation of a public assembly facility
within one hundred (100) mile radius of Miami unless the agreement
is (a) with the CITY, or (b) agreed to by the CITY.
b. The FIRM agrees that it shall not materially alter the
nature of the services that its company offers in a manner that
might impact on the operation at the Center without prior written
approval of the Executive Director.
c. The FIRM agrees, in all instances when Miami is in con-
vention solicitation competition with other cities in which the
FIRM has convention center operations, not to become corporately
involved on behalf of another City in attempts to influence the
decisionmaking process regarding selection of a convention site.
Conversely, the FIRM Facility Executive in Miami will use best
efforts in supporting the Bureau in all attempts to obtain exhi-
bition and convention bookings for the Convention Center.
., 19. APPLICABILITY OF CHARTER PROVISIONS
This Agreement is subject to the budget and fiscal provisions of
the CITY's Charter and Code. Charges will accrue only after prior ••
written authorization by the CITY's Finance Director, and any amount
of the CITY's obligations shall not at any time exceed that amount
82-219
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certified for the purpose and period stated in advance written autho-
rizations. This requirement shall be controlling against any and all
- of the other provisions of this Agreement. ,
20. RELATIONSHIP OF PARTIES
The CITY and the FIRM agree that the only relationship to be
created is one for supplying management services and that the FIRM is
an independent contractor and not an agent, employee or partner of the
CITY.
The FIRM shall have complete control over its employees in the
method of performing their work. The FIRM can retain the right to
exercise full control and supervision of the services and full control
of the employment, direction, compensation and discharge of all its
employees. The FIRM agrees to be solely responsible for all matters
relating to payment of its employees, including compliance with social
security and withholding requirements and all the regulations governing
such matters subject to reimbursement by the CITY in accordance with
Section 3e hereof. The FIRM agrees to be solely responsible for its
own acts and those of its subordinates and employees.
21. QUIET ENJOYMENT
The CITY agrees that if, and as long as the FIRM keeps and per-
forms each and every covenant, agreement,' term, provision and con-
dition on the part and on behalf of the FIRM to be kept and performed,
the FIRM shall quietly enjoy its rights under this Agreement, without
hindrance and molestation by the CITY.
22. RIGHT OF ENTRY
The CITY shall, through a reasonable number of its agents who are
on officially assigned CITY business, and at all reasonable times,
have the right to enter into and upon any and all parts of the Center
for the purpose of examining the same for any reason relating to the
obligations of the parties to this Agreement; provided, however, that
said agents shall be required to first notify the FIRM's manager of
their presence.
- 19 -
0 82-219
23. WAIVER OF RIGHTS
In the event of any breach of any representation, covenant,
warranty or provision made in this Agreement by either party, failure
by the non -breaching party to assert or exercise any right, remedy or
privilege, within one year after the actual or constructive notice or
knowledge of the breach is received or obtained, shall constitute a
waiver of such right, remedy or privilege. No other waiver shall be
effective, unless in writing, and then it shall be effective only in
the specific instance for which given. In no event shall any waiver
constitute a waiver of future rights, remedies, or privileges to which
a party may be entitled by virtue of any breach.
24. RESOLUTION OF DISPUTES
a. Any issues requiring resolution that arise shall first
be addressed by the Facility Manager and the individual authorized
by the CITY to administer this Agreement, who shall attempt to
resolve them.
b. If satisfactory resolution is not possible as herein -
above described, the issue shall be submitted by the CITY's
representative and the Facility Manager in writing, to a joint
conference committee composed of two (2) representatives of the
CITY and two (2) representatives of the FIRM. The President of
the FIRM and the city manager shall be ex-officio members of this
committee, with vote. The joint conference committee shall
recommend policy to the CITY and the FIRM deemed by it to be
appropriate and in the best interest of both parties and the
general public with respect to such matters as:
1. Additions, deletions or changes or programs undertaken
at the Center.
2. Additions, deletions or changes to the terms and
conditions of the proposed Agreement; and
3. Any other matters affecting the proposed Agreement.
- 20 -
82-219
25. TERMINATION
In the event the FIRM and the CITY are unable to resolve disputes
in the manner called for, then the following provisions for termi-
nation may be exercised.
a. Failure of the FIRM to perform satisfactorily any of
its obligations as reasonably determined by the CITY, shall be
cause for termination upon written -notice from the CITY, with a
sixty-day period in which to cure such deficiencies as may
exist. Failure to cure such deficiencies within said period
shall result in immediate termination.
b. Agreement with the FIRM may be terminated in whole or
in part in writing by the CITY for its convenience; provided the
FIRM is given not less than one hundred twenty (120) days'
written notice (delivered by certified mail, return receipt
requested) of intent to terminate. In event of notice of termi-
nation, the FIRM shall take all necessary measures to mitigate
termination expenses.
C. If termination pursuant to paragraph a above is effected
by the CITY, the FIRM will be paid for work actually performed to
the date of termination, plus any fee earned to date of termi-
nation, less the cost to the CITY of making good any deficiencies,
correcting all work improperly performed, and any additional cost
to the CITY for removing or replacing the FIRM, exclusive of fees
paid to firm(s) hired to replace the FIRM.
d. If termination pursuant to subparagraph b above is
effected by the CITY, the CITY will pay for work actually per-
formed to the date of termination plus:
and
1. Any fee earned to date of termination;
2.
Any
costs for lease
cancellations;
3.
Any
obligations of
the FIRM resulting from termination;
4. Any reasonable demobilization charges.
- 21 -
r 82-2ig
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e. Upon the effective date of a termination notice pur-
suant to paragraph a or b above, the FIRM shall (unless the
notice directs otherwise) (i) promptly discontinue all services
affected, and (ii) deliver or otherwise make available to the.
CITY all data, documents, procedures, reports, estimates, summaries,
and other such information and materials as may have been accumu- :'
lated by the FIRM in performing its obligations, whether completed
or in process.
f. Upon termination pursuant to paragraph a or b above,
the CITY may take over the work and see that the same is com-
pleted by agreement with another party or otherwise, all without
liability to the FIRM.
g. If, after termination for failure of the FIRM to
fulfill contractual obligations, it is determined by a court of
competent jurisdiction that the FIRM had not so failed, the
termination shall be deemed to have been effected for the con-
venience of the CITY. In such event, adjustment for compensation
shall be made as provided in paragraph d above.
h. Termination under the provisions of paragraph a above
shall be deemed effective as a result of, but not limited to, the
following actions:
1. The occurrence of any act or omission on the part of
the FIRM that deprives it of the rights, powers, licenses, per-
mits and authorizations necessary for the lawful and proper
conduct and operation of the services and activities authorized;
2. The filing by or against the FIRM of any petitions in
bankruptcy either voluntary or involuntary, or the making by the
FIRM of any assignment for the benefit of creditors, either of
which actions shall automatically be basis for termination and
bar the passing of any benefits to creditors, assignees, or
transferees of the FIRM;
3. The abandonment, discontinuance, or assignment by the
FIRM, without written consent of the CITY, of any or all of the
operations and services permitted or required;
4. The failure of the FIRM to account for, and pay to the.'
CITY, as provided in any and all amounts of gross revenue due and
owing to the CITY from the FIRM; and
5. The cessation or deterioration of services for a
period that in the reasonable opinion of the CITY, materially and
adversely affects the operation of the public services required
to be performed by the FIRM.
- 22 -
82-21.4
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that the FIRM's General Manager shall devote full efforts to the
work pertaining to the Center.
b. The position of the FIRM's General Manager is con-
sidered key to the successful operation of the Center. The FIRM
shall seek and receive approval by the CITY of the individual to
serve in this position and the CITY reserves the right to approve
all replacements for this position. The CITY shall not unreason-
ably withhold such approval. The CITY reserves the right to
direct removal, for cause, of any of the FIRM's personnel; pro-
vided, however, that any liability for such removal is to be
borne by the CITY, and the CITY agrees to indemnify and hold
harmless, the FIRM for any claim arising from such removal of a
FIRM employee.
c. All personnel employed at the Center shall be employees
of the FIRM and shall not be deemed employees of the CITY. The
employees and agents of the FIRM shall attain no rights or bene-
fits under the Civil Service or Pension Ordinances of the CITY,
nor the rights generally afforded classified or unclassified
employees of the CITY, nor shall the FIRM or its employees be
entitled to Florida Workmen's Compensation benefits as employees
of the CITY. The FIRM agrees to make every reasonable effort to
recruit employees who reside in Miami and will recruit all
employees in accordance with both the Affirmative Action and
Equal Opportunity Programs of the CITY. The FIRM agrees to be
responsible for the hiring and direct remuneration of all perma-
nent personnel necessary for the operation of the Center, as well
as other temporary personnel such as gatekeepers, cashiers,
of ticket takers, ticket sellers, ushers, restroom attendants,
electricians, first -aid attendants, and any other persons required
to perform the services undertaken.
29. RENTAL AGREEMENTS
a. The FIRM shall have the authority to execute user
rental agreements for the use of the Center in accordance with
- 24 -
82-219
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City -approved operations policy and rental rates. User rental
agreements not in accordance with said operations policy and
rental rates shall require the approval of the CITY or its
authorized representative. Failure of the CITY or its'•authorized
representative to approve such agreements in a timely manner (three
(3) days) shall obviate the necessity • for such approval.
b. Any user rental agreements or contracts for attractions,
events and services in the Center existing at the time of execu-
tion of this Agreement shall be assigned to the FIRM, who shall
assume and perform the obligations of the CITY in respect thereto.
30. PROCEDURE FOR HANDLING INCOM
Income derived from facility rentals will be deposited no later
than the next business day after receipt in a Revenue Account under
the control of the Director of Finance from which the CITY alone can
withdraw funds. Income derived from non -budgeted operations, which
consists of enterprise accounts for such items as programs, exhibitor
services, box office, etc., will be maintained in separate accounts
operated and controlled by the FIRM. The FIRM shall control these
accounts and maintain a balance sufficient to cover the operation of
these non -budgeted enterprise operations for the following sixty (60)
day period. With this exception, all revenue from operations will be
deposited no later than the loth business day of each month in a
Revenue Account from which the CITY alone can withdraw funds. Within
sixty (60) days after the end of each year, the FIRM will provide to
the CITY a complete financial statement for each enterprise account,
which accounts shall be subject to audit.
Cash control for building operation shall be accomplished through
a combination of rigid accounting procedures and internal controls,
verified by internal audit tests and an annual audit by an independent
public accounting firm. Separate bank accounts shall be utilized for•''•
operating funds and box office receipts.• The box office account shall
be an escrow system that is zero balanced for each event. All dis-
bursements shall be by dual -signature checks supported by requisition -
purchase order procedures. Payrolls shall be processed through a
- 15 - ' 82-21 9
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separate impressed bank account, reconciled monthly, and tested via
internal audit procedures.
Reimbursable expenses for each event shall be coded for accurate
accumulation to ensure all applicable costs shall be paid by the
client. Advance deposits covering rentals and estimated costs shall
be generally required to minimize collection programs. Credit
references shall be checked on any new or questionable clients.
31. NOTICE
All notices required or permitted to be given pursuant to this
Agreement shall be in writing and delivered personally or sent by
registered or certified mail, return receipt requested. All such
notices to either party shall be deemed to have been provided when
delivered, if delivered personally, or five (5) days after depositing
the same, postage prepaid, with the United States Postal Service,
addressed as follows:
To the CITY: Executive Director
_ City of Miami
James L. Knight International Center
400 Southeast 2nd Avenue
Miami, Florida 33131
To the FIRM:
32. SEVERABILITY
In the event any term, covenant, condition, or provision is held
by any court of competent jurisdiction to be invalid, such invalidity
shall in no way affect any other term, covenant, condition, or pro-
vision provided, however, that the invalidity of such term, covenant,
condition, or provision does not, in the opinion of the CITY and the
FIRM, materially prejudice either the CITY or the FIRM as they shall
mutually agree in its rights and obligations. If the validity of any
such term, covenant, condition, or provision should be determined
materially to prejudice the FIP14 in its rights or obligations con-
tained in the valid terms, covenants, conditions, or provisions, or if
- 26 -
82-219
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t d41C: /�,1-, i4�i. � lE %+0..''•L•�-,a,4uf �2.1 .iM"st 44+f'��`,. �•'• •ea" �-. :f/",.ah'h�-�'
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the consequence or effect of the invalidity of any term, covenant,
condition, or provision contained will be or may be to reduce any of
the areas, spaces, facilities, benefits, or privileges that the FIRM
otherwise would or might enjoy or be entitled to, the FIRM may, con-
sequently, at its option, elect either to terminate entire or to con-
tinue in full force and effect with only said invalid terms, covenants,
conditions, or provisions eliminated.
33. THE AGREEMENT: GOVERNING LAW
This Agreement will (a) comprise the entire understanding between
the parties; (b) supersede all prior agreements; and (c) shall be
governed by the laws of the State of Florida.
34. AMENDMENTS TO AGREEMENT
No alteration or variation of terms shall be valid unless made in
writing and signed by both parties, and no oral understanding or
agreement not incorporated therein shall be binding on any of the
parties.
IN WITNESS WHEREOF, the parties hereto have caused these presents
to be executed by the respective officials thereunto duly authorized,
this the day and year first above written.
Attest:
Secretary
[CORPORATE SEALI
Attest:
City Clerk
FLORIDA FACILITY MANAGEMENT
INCORPORATED
By:
CITY OF MIAMI, a Municipal
Corporation of the State of
Florida
By:
City Manager
APPROVED AS TO FORM AND CORRECTNESS:
GEORGE F. KNOX, JR.
CITY ATTORNEY
82-219
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AGREEMENT
THIS AGRELMEiVT entered into this d Sr day of
1977, by and between the UNIVERSITY OF MIAMI, a non-profit corpora-
• JIi'ii d
tion organized and existing under the laws of the State of Florida (here- ;
inafter referred to as the "University") and the CITY OF MIAMI, a
municipal corporation under the laws of the State of Florida (hereinafter
referred to as the "City''),
WITNESSETH: _.
-WHEREAS, the City is planning to construct a downtown Con
. vention Center substantially in accordance with plans dated September 28,
1976, revised December 13, 1976, for City of Miami/University of Miami,
James L. Knight International Center, consisting of 4 pages prepared by
Ferendino Grafton Spillis Candela, and -Outline Preliininary Specifications:-—
therefor prepared by the same firm dated October 1976, a copy of each -
of which is attached hereto as Exhibit A ar.d Exhibit B, respectively, and- -
rnade a part hereof by reference, on a site bounded on the south by the
Miami River, on the east by S. E. 2nd Avenue, on the west by S. E. 1st
%l: _.JJ. S'. : .. . ....1} .� ilSl. .. �:. i' Ji ..:? 1'r,..'+ :J :'rCSi
Avenue, and on the north by an irregular boundary bounded in part by
the 1-95 feeder ramp and in part by S. E. 2nd Street, which tract of land
comprises approximately five and one-half acres; and
82-219
•WHEREAS, it is the intention of the City through the con-
•—s'i•`.Cj'i•,'s �t,`7t •i:+:.. .;'•• .. .• ,i•,• .. •••,..;t. rt r7.).•... . � !T:". , _'�''. .
struction of such downtown Convention Center to upgrade and• re-
vitalize the downtown area in its vicinity and in general and to
stimulate tourist business in the downtown Miami area; and
WHEREAS, in the opinion of the City it would enhance the
success of the venture for the University to conduct a Conference•
Center as a part of the operation of the Convention Center and it
.' would be helpful to the operation of the Conference Center by the
University to -have it associated with a Convention Center operated.:':...
by the City, especially in that some of the facilities in the Conven- -
tion•Center and in the Conference` Center can serve rnultiple use pur-.
poses and thereby enhance the economic. feasibility of the total pro-
ject; and
WHEREAS, -as part of the total project the City is :to attempt ^_,_
in •good faith to arrange for the construction on the site of a 1, 000
car garage to be located in the northern portion thereof as sho,%%m by -
the plans herein described, and tfor a developer to construct a luxury
�•ti . `.L• L!, •i `I `.r '( `. .. .;ia�U ... • .•r 1 .. 1 ,'T;r . S i•r; r .r. �-
hotel on•tbe site.to have not less than Z50 rooms and a rekail area; and
WHEREAS, the University is willing to pay to the City the sum
of $2, 500, 000 itogether with earnings which may accumulate in the escrow -
account provided for in this Agreement) as advance payment of rental for
e
the Conference Center area but only upon the basis set forth in this
Agreement and upon execution and delivery of a lease substantially
in the form which is attached hereto,and made a part hereof;
NOW, TI3EREFORE, in consideration of the premises and of
the mutual covenants and of the promises herein contained upon the
part of each of the parties hereto, it is agreed as follows:
1. The City agrees to construct a downtown Convention Center
in accordance with the plans and specifications hereinabove described
and to complete the construction and all other activities in accordance
with the follovving schedule:
Date
Completion of Design Development
November 18, 1976
Feasibility Study
January 30, 1977 ..- ..
Selection of Prospective Private
Developer ','
March 1, 1977 -
Execution of Contract with Private
Developer
December 30, 1977
Completion of Construction Documents
June 1, 1977
Request for Bids
10 days after execution
of private developer
contract
Award of Construction Contract
60 days after execution
of private developer
contract
Obtaining Building Permit and Start
75 days after execution
of Construction
of private developer
contract •
' 82. 219
• - Q
Completion of Construction of Con-
vention and Conference Center
Date of Completion of Notel and
Parking Requirements
Signing of Lease between City and
University and Beneficial Occupancy
of Conference Center by University
Date
800 days after execution of
private developer contract
180 days after completion o�
Convention and Conference
Center
30 days after completion of
hotel and parking requirements
Each of the above scheduled dates may be extended by the City by the
number of days of delay which results from labor disputes, fire, unavoid-
v
able.casualties, or other causes beyond the control of the City or the
contractor or subcontractors doing the work, but the University is to be
kept fully informed about any such delays and is to be furnished at the
time of each delay with a revised time schedule. -Any change or deviation
from the projected time schedule other than those unavoidable delays
described in the preceding sentence must,- be approved by the University,
which approval will not be unreasonably "withheld. Any material deviation
from the schedule which does not result from one of the causes listed
above and is not approved by the University shall entitle the University
to cancel this Agreernent, have returned to itallmonies it may have
placed in escrow under Paragraph 3 hereof and accumulated earnings
1.
thereon and be under no further obligation hereunder.
Z. As part of the total project the City is to cause
to be constructed a hotel and retail area, both of which are to be com-
pleted and the hotel is to be in operation within sixty (60) days from
�r
1
the date upon which the University occupies the Conference Center.
The hotel and retail area are to be constructed in accordance with the
plans and specifications described in this Agreement. The Developer
Bid Docmnents are to state the need that at least 500jo of the retail stores
(by area) must be rented for immediate occupancy at the time that the
hotel is scheduled to be in operation.
3. The University is not to snake any payments to the City until
the date that the parking requirements set forth in Paragraph 15(f) hereof
and the hotel are completed and are in operation, all conditions in the De-.
veloper Bid Documents mentioned in Paragraph 2 hereof have been met,
and the lease is signed. The University will, however, make deposits in
the total amount of $2, 500, 000, to apply as advance rents with an escrow.
agent located within the City of Miazni, selected by the City and approved
by the University, which fund is to be invested in short term United
States Government securities. Within thirty (30) days from the date
of execution and delivery of this Agreement and upon evidence being
furnished by the City to the University that the City has made payments
to the architects (Ferendino Grafton Spillis Candela) required to be paid
upon completion of Schematic Design and Design Development phases of the
Convention Center Project the University shall deposit with said escrow
agent the sum of $56, 500. Upon completion of construction documents and
the malting of a progress payment therefor to the said architects by the
a
City the University shall deposit with said escrow agent an additional
$49.700. Upon completion of bidding and the making of a progress payment
82-219
therefor to the architects by the City the University shall deposit with
said escrow agent an additional $7,100 and upon completion of construction of
the project and the inalcing of the final payment therefor to the architects by
the City the University shall deposit with the said escrow agent an additional
$28, 400. Each such deposit shall be made within thirty (30) days after the
University is notified by the City that it has made payment to the architects.
In addition to the foregoing deposits the University shall deposit with said
escrow agent the total sum. of $2, 358, 000 as construction progresses in
amounts which bear the same proportion to $2, 358, 000 as- the progress
Y'
payments made by the City to the contractor who builds the Convention
Center (including the Conference Center) bear to the total contract price
for the construction of the Convention Center. Each such deposit shall be'.
made within thirty* (30) days after the University is notified by the City that
it has made a payment to the contractor. In no event shall payments by -.
J•'
the University to the said escrow agent exceed the total sum of $2, 500, 000
and in no event shall the prepaid rent on the lease exceed that amount plus. -
interest earned upon monies deposited in escrow as provided in this Agree -
spent. -The total amount held in the escrow account, including interest -
thereon, shall be paid to the City as advance payment of rental at the time
of the execution apd delivery of the lease between the City and the University
referred to herein. In the event of a default under any term or condition
r
of this Agreement by the City all funds held by the escrow agent are to
be returned to the University and the University shall not be obligated to
male any further deposits with the escrow agent.
4. The money to be paid by the University to the City shall consti-
t-ute prepaid rental for the area to be leased by the City to the University
for use as a Conference Center for the first thirty (30) years of the term
of such lease. The University shall not bear any of the cost or expense of
constructing the Conference Center or the Convention Center, and without
limiting the generality of the foregoing the University shall not be responsible
for any cost or expense of construction, construction contingencies, fees of -
architects and engineers, construction m«nager or any other cost or expense
whatsoever connected therewith.
S. Upon (i) completion of the project, (ii) the City furnishing assur-
ances satisfactory to the University of parking as described in Paragraph 15(f) -
hereof and of performance of all Developer Bid Documents referred to in Para-
. ,
graph Z hereof, and (iii) having met ail, other requirements of this Agreement,
the City and the University are to enter into a thirty (30) year lease with two
thirty (30) year renewal options in substantially the form attached hereto as
Exhibit C upon payment by the University to the City of prepaid rental for the
first thirty (30) years in the amount specified in this Agreement. Concurrently
with the execution and delivery of said lease the monies held in escrow as pro-
vided in Paragraph 3 hereof, together with earnings thereon, shall be paid to
the City. No further basic rent is to be paid by the University for the use of
the'Conference Center space for the term of the two thirty (30) year renewal
periods. In consideration for each renewable option period, the University
' 82-21A
6 - 6a - 0
of this Agreement by the City all funds held by the escrow agent are to
be returned to the University and the University shall not be obligated to
rnalce any further deposits with the escrow agent.
4. The money to be paid by the University to the City shall consti-
tute prepaid rental for the area to be leased by the City to the University
for use as a Conference Center for the first thirty (30) years of the term
of such lease. The University shall not bear any of the cost or expense of
constructing the Conference Center or the Convention Center, and without
limiting the generality of the foregoing the University shall not be responsible
for any cost or expense of construction, construction contingencies, fees of
architects and engineers, construction m;.nager or any other cost or expense
whatsoever connected therewith.
S. Upon (i) completion of the project, (ii) the City furnishing assur-
ances satisfactory to the University of parking as described in Paragraph 15(f)
J •
hereof and of performance of all Developer Bid Documents referred to in Para-
' r
graph 2 hereof, and (iii) having met alf other requirements of this Agreement,
the City and the University are to enter into a thirty (30) year lease with two
thirty (30) year renewal options in substantially the form attached hereto as
Exhibit C upon payment by the University to the City of prepaid rental for the
first thirty (30) years in the amount specified in this Agreement. Concurrently
with the execution and delivery of said lease the monies held in escrow as pro-
vided in Paragraph 3 hereof, together with earnings thereon, shall be paid to
the City. No further basic rent is to be paid by the University for the use of
the'Conference Center space for the term of the two thirty (30) year renewal
periods. In consideration for each renewable option period, the University
82-z19
-7-,
agrees that it will refurbish, update, and modernize its equipment and .
furnishings within one year after the commencement of such renewable term
or show evidence that it has done same before the commencement of such
renewal term.
6. The amount of space to be furnished to the University on a rental
basis for use as a Conference Center shall be not less than 30, 752 square feet
of net working space. The area is shown in green on Exhibit A which is at-
tacked hereto.
7. The quality level of the interior finishes of University space
shall be as shown in working drawings and specifications, all of which :.
are to be approved by the University, and are to be consistent with the
plans and specifications above described. As to the Conference Center
area, the University is to have the right to review and approve the design,
quality of design, working drawings and specifications prior to advertising
for bids and the right to approve or reject the finished materials or workman-
ship and the right to be reasonably sat'sfied that the resulting work product
conforms to the working drawings and specifications. To that end the Uni-
versity shall monitor the workmanship and quality of -material on a periodic
basis and advise the City of any deficiencies promptly. It -.addition, the
University shall have the right to review and will be consulted on the overall
design and quality of construction of the Convention Center as a whole and
the City shall have similar rights as to the Conference Center area. Any
significant structural changes or alterations affecting the quality of design
and consistency of standards of quality during construction either of the
interior or exterior of the premises which would affect the usefulness of
the Conference Center are to be subject to approval by the University.
Any reduction in or changes in the structure which reduce the use value •
to the University of space to be occupied by the City or the private.
developer are to be subject to approval by the University.
• 8. The University is recognized to have a vital interest not
only in quality of design, color, location of elements, finishes, and
furniture and furnishings in the Convention Center, but also in the
motif, atmosphere, and tone thereof and for these reasons it shall
have the right to be consulted on these matters before and during.
construction.
9• The University shall have the right to utilize the facilities
being constructed by the City by rental of these facilities as a prime
tenant on the site. As such, the University will have scheduled
priority and ready access to the City of Mi.4mi space at rates to be
--
established in accordance with the provisions of this Agreement and
the lease attached hereto. The City's Convention Center will have
access on a scheduled priority basis at reasonable rates to be estab-
ished by the University to the use of meeting spaces, the use of
the teaching technology staff and the associated sophisticated equip -
anent provided by the University.
10. The space to be covered by the lease from the City to the
University is to include all interior partitions, wall and floor cover-
ings, light fixtures, mechanical/electrical and electronic distribution
82i219
systems required to accommodate projected hardware and software to
be installed by the University, and all fixed seating, furnishings, and
equipment to be installed as an integral part of the building. All of the
foregoing are to be subject to the quality standards set forth in this Agree-
ment.
11. The University shall have sole responsibility for management,
scheduling and utilization of space covered by the lease to be entered into
between the parties hereto.
12. The University shall provide all zrnovable furnishings and equip-::
ment needed in the area covered by the lease between the City and the
University.
13. The City is to be responsible for maintaining normal security:
and public safety and for providing custodial and maintenance services for .,
all portions of the Center. For any special security or public safety re-
quired, i. e. , for visiting digni taries, •etc. , the cost of such service shall
be borne by the party programming the event. The cost of custodial and
maintenance services for the area covered by the University lease will be
determined annually with the University and the City, agreeing on such cost
if they are able to do so. The amount to be paid by the University will be
paid monthly but is to be subject to revicw*and adjustment annually. If
the parties cannot agree on cost or if the quality of custodial and mainte-
nance services reaches a level unacceptable to the University, the
University will have the right to provide its own custodial and
i' 10
maintenance services but such services will be required to be of a
level acceptable to the City.
14. The University shall not be responsible for any utility,
security, maintenance or custodial cost of the common areas except
for the University's reception area even though other areas may be
used by the University.
15. In the lease to be entered into between the University and
• the City, the University shall have the right to:
(a) Establish and maintain its unique interior design
image within the Conference Center area;
(b) Modify and adjust the use of space through major
and minor remodeling of all interior spaces;
(c) Furnish and equip its facilities as may be appro-
priate to meet educational prograrnming needs;
(d) Have first priority in rental of City controlled
spaces when such spaces have not been scheduled for City
Convention Center programmed activities, paying to the
City a reasonable rental comparable to that paid by others;
(e) The University shall have the right to an annual
audit of the cost components of the City relating to custo-
dial and maintenance services, includ'inb labor, customary
82 -'219
fringe benefits, materials, supplies, use of equipment,
utilities, and other cost elements;
(f) As part of the lease the City shall assure to the
University adequate parking in the 1, 000± car parking
garage to be constructed at a location on the Convention
Center site, of which in no event shall there be less
than 300 spaces to be available upon scheduled request
for programmed events wherein the conference attendees
will arrive by automobile at the lowest rate charged to
any other user and up to 25 spaces to be available on a.-
continuous basis for convenient administrative parlcing,
at the lowest rate charged to others;
(g) The City is to pay to the University for Uni- : -
versity owned space a reasonable:rental comparable to r
that paid by others; 3'•.%.
(h) The City will pay to the University for the use
of special facilities or equipment a reasonable charge
therefor comparable to that paid by others;
(i) If such use does not conflict with use by the Urii-
versity, the University will agree to make available to
entities which arc using City facilities the special equip-
ment and facilities maintained by the University at a rea-
sonable charge comparable to that paid by others;
•
. • ` •.. 12
(j) If such use does not conflict with use by the City,
the City will agree to malte available to entities which are
using University facilities the special equipment and facilities
maintained by the City at a reasonable charge comparable to
that paid by others;
(k) The City is to agree that at no time during the life of
the lease or any renewal thereof will it rent space on a regular
and continuing basis to any other private or public educational
institution of higher education for conducting programs which
arr, similar to those which are offered by the University at _.
the Conference Center; •
(1) Neither the City nor the University is to solicit con-
ferences or conventions which offer educational or other
programs similar to any program' or convention theretofore
conducted by the other party;
(m) The University shall have the right to assign or trans-
fer the lease or to sublease the Conference Center or any part
thereof without the prior written consent of the City, provided
that the assignee or transferee or sublessee shall be obligated
to use the premises so assigned, transferred or subleased for
the same purposes for which they can be used by the University
under the terms of the lease, and provided further that the City
shall have a right of first refusal in the event of a sublease of
P g2•-219
I
-13- 1 ".
the entire Conference Center or an assignment of the lease
within thirty (30) days after receipt of written notice of an in-
tention by the. University to sublease the entire Conference
Center or assign the lease.
(n) If the City defaults under the terms of the lease the
University is entitled to be made whole, that meaning that the
University will be paid an amount sufficient to replace the
facilities covered by the lease and the amount of income lost
by reason of the default.
16. The parties agree that the University shall have the right to_- . _
participate in all discussions between the City and potential developers in "
order to identify supporting amenities to be developed in hotels and other
facilities on and adjacent to the site.
17. The only change orders for which the University shall be re- _
sponsible are those which represent a change in the requirements of the _
University. All others are to be paid foz'by the City.
18. The level and quantity of instructional technology equipment
which the University will place in the Conf erence Center is set forth on a
list which is attached hereto, made a part hereof and marked Exhibit D.
This is subject to change pending new and available equipment on the
inarl:et. Any construction contract extras 'required as a result of equipment
clianoes by the University shall be the responsibility of the University.
19. The City agrees to establish not later than April 30, 1977, a
separate department
by City Ordinance,
the head
of v:hich departinent is to
be the director of the
Convention Center
who will
report directly to the City
1
-14-
1
Manager. In addition, an advisory committee is to be established
by the same ordinance, to be known as the "City of Miami/University
of Miami James L. Knight International Center Advisory Committee".
Said Committee shall consist of nine (9) members mutually agreeable
to the City and the University, each of whom shall be an individual
of outstanding reputation for integrity, responsibility and
business ability. The City Commission shall submit a list of five
(5) nominees to the City Manager and the University Board of
Trustees shall submit a list of four (4) nominees to the City
Manager. The City Manager shall review each of the lists with
the other party. If mutual approval is not reached, additional --
nominees will be added to the respective lists until mutual agree-
ment is reached by both parties. The final list, mutually ap-
proved by the City and the University shall be formally submitted
to the City Commission for appointment to the Advisory Committee_.
by the City Corrmiission. In the approval process, the City Manager
is to insure that in addition to all nine (9) selected Advisory
Committee members representing the best interest of both the
City and University in the James L. Knight Center they shall
also truly represent the cultural, ethnic, and racial backgrounds
of the community. This Committee is to be appointed by the City
Commission not later than May 31, 1977. The Director is to be
appointed by the City Manager from persons recommended by the -
Advisory Committee. The Director is to be appointed not later
than June 30, 1977.
20. Utility costs are to be determined by
separate meters or acceptable measuring devices for
each user's area and will be charged at the same rate
1 82-219
k.
as is charged by the supplier of the particular utility service to the total
Convention Center.
21. The name of the Center is to be the; "City of Miami/Oniversity
of Miami JAMES L. KNIGHT INTERNATIONAL CENTER".
22. The University, the City and the developer each will be re-
sponsible for providing public liability coverage for the area occupied by
it, with limits of $5 million for one person and $10 million for any one acci- -
dent in which the other two parties are named as additional insureds. -
23. The City will obtain property insurance covering the replace=•-=
meet cost of the Conference Center with loss thereon payable to th•: University -
in order to protect the leasehold interest held by the University, and the
University shall reimburse the City for the cost of such coverage. The
University shall provide its own insurance protection on personal property
owned by it.
24. The hotel which is to be a_7part of the Convention Center shall
consist of not less than 250 rooms, plus the reasonable complement of dining
rooms and meeting rooms for their own purposes. The construction, com-
pletion and occupancy of that hotel is an absolute condition of the University
resting the Conference Center from the City and unless that is accomplished
the University is under no obligation to rent any space whatsoever and
shall be entitled to receive promptly all of the ironies placed in escrow under ,
Paragraph 3 hereof and any earnings thereon.
n
- 15a -
11
• 25. The hotel is to be constructed immediately adjacent to
or over the University's Conference, Center and is to be of such design
and interior finish and furnishings as to be considered on the luxury/
first class level and to provide all the amenities relating to high caliber
transient rooms in accordance with professional hotel standards.
26. The Developer Bid Documents are to state the need for
the following provisions and that any agreement between a private de-
veloper or hotel operator relating to such hotel and the City shall be
negotiated in light of that need and the City. shall attempt to include pro-
visions as follows
(a) Reimbursement to the University for conference
staff administrative services for arranging and coordinat-
ing conferences and brinbinb participants into the hotel
rooms at not less than 15% of the Tniversity visitor room
income or the equivalent of prevailing industry standard
reimbursements for use of activities and services of the
hotel normally paid to other agencies when providing or
arranging for similar reservations.
0.
82-219
w
-16-
(b) The University is to have schedule priority as
to all facilities of the hotel for its conferences and
visitors, including priority on the making of reserva-
tions. The University desires that the developer and
•the hotel operator provide facilities for training and in-
ternship purposes. The University is to have schedule
priority in utilizing the hotel for training and intern-
ship purposes and special programs and seminars in
hotel management, hospitality and travel.
If the City is unable to negotiate an agreernent ♦vitli the developer
containing provisions at least as favorable to the University as those _
set forth in subparagraphs (a) and (b) of.this paragraph the University
shall have the right to either accept the provisions which are negotiated
or r eject' them. If the provisions are rejected the University shall have
the right to the immediate return of all money held by the escrow agent
and shall be under no further obligation under this Agreement.. -. -
27. Before execution of the lease attached hereto as Exhibit C
14 •
it shall be completed by making appropriate insertions in blank spaces
•
- 17 -
and by conforming the provisions to any agreements reached by the
parties hereto in writing between the date of this Agreement and the
date of the execution and delivery of the said lease.
28. This Agreement contains all of the understandings of the
parties hereto and merges all prior oral discussions on this subject
between the parties.
IN WITNESS MHEREOF, the parties have caused this Agreement to
be executed and delivered by their respective duly authorized officers
all on the day and year first above written.
ATTEST:
f
_.......Ott".
ATTEST
..( i •
-City Clerk
APr..::,VFD v:S TO--CONTE\T
,Project Director
w
�.
IJi�IiVEP.SI':'Y Or,' .h]I,'i�l_/;By
Executive Vice Preside;ir for
Administration. and Finance
THE CITY OF o?;3•AIMI (a municipal
corpo;n, lo`�ci aftg•State ofcrie-:
i
City Manager
APPROVED AS TO FOP + S COR?ECT::ESS
-77
City Attodney Lj
82'_219
1 " rINA L
L E A S E
TMIS LEASE made and entered into this _ day of
1rj7_, bctweeri the CITY OF 1b IAMI, a municipal corporation under
the laws of the State of Florida (hereinafter called the "City"), as
Lessor, and the UNIVERSITY OF MIAMI, a corporation not for profit
organized and existing under the laws of the State of Florida (herein-
after called the "University"), as Lessee,
WITNESSETH:
WHEREAS, in connection with the construction of a downtown
Convention Center by the City on a site bounded on the south by the
J%Iiami River, on the east by S. E. 2nd Avenue, on the «rest by S. E.
1st Avenue, and on the north by an irregular boundary* bounded in
part by the I-95 feeder ramp and in part by S. E. 2nd Street (here-
inafter called the "James L. Knight International Center"), the City
has constructed a Conference Center to be leased to the University
under the terms of this Lease (hereinafter called the "Conference
Center"); and
WHEREAS, the City desires to lease to the University and the
University desires to hire from the City the Conference Center on the
terms and conditions hereinafter set forth;
82-219
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NOW, THEREFORE, in consideration of the rents, covenants,,
and agreements hereinafter reserved and contained on the part of the
University to be paid, kept and performed and conditioned upon the per-
formance of the covenants and agreements upon the part of the City to
be kept and performed, the City hereby leases to the University and the
University hereby takes and hires from the City the Conference Center
as more particularly described in
[describe final construction documents]
I
which Exhibits have been examined and initialed by the parties hereto and
are hereby made a part hereof, together with the appurtenances, furnish-
ings and equipment therein, and the easements and rights -of -way reserved
to the City of Miami which are set forth in Exhibit attached hereto
and made a part hereof, upon and subject to the covenants and agreements,
terms, provisions and conditions hereinafter set forth.
ARTICLE I. NAME OF CENTER, INITIAL TERM OF THE LEASE AND
RENEWALS THEREOF, POSSIBILITY OF EXPANDING
AREA OF CONFERENCE CENTER
1. 01. The Convention Center shall bear the name "James L.
Knight International Center".
1.02. This Lease shall be for a term of thirty (30) years (here-
inafter called the "Initial Term") to commence as of
r, c
3
and to expire on
1.03.
(a) Subject to the provisions of this Section both the
University and the City shall have the right to renew this
Lease on the same terms and conditions as contained herein
for two successive additional terms of thirty (30) years each,
the first to commence on and to expire on
(hereinafter called the "First Additional Term") and the second
to commence on and to expire on (herein-
after called the "Second Additional Term"). Either the University
or the City may, by certified mail, inform the other party of its
intent to exercise the renewal option of this Lease by furnishing
the opposite party one (1) year prior to the expiration of the
initial term or the First Additional Term, whichever is then
in effect, written notice to renew the Lease for the next renewal
term and such renewal shall become effective unless within sixty
(60) days of receipt of such notice the party receiving it shall
refuse to renew. •
(b) Upon having furnished such notice unless there is a
refusal to renew this Lease is to be renewed and no further
instrument shall be necessary to effect such renewal.
(c) In the event that the City furnishes such notice of inten-
tion to renew this Lease and the University furnishes timely
�82-219
- 3a -
notice refusing to renew, the Lease herein and all interests
shall terminate and no future responsibilities shall accrue
hereunder.
(d) In the event that the University furnishes such notice
of intention to renew this Lease and the City furnishes timely
notice refusing to renew, the City agrees that the University
is entitled to be made whole for the remainder of the renewable
option periods and the University will be paid in an amount suf-
ficient to replace at a different location the facilities covered
by the remaining renewable option periods and the amount of
income lost by reason of the refusal of the City to renew same.
(e) In further consideration for each renewable option
period, the University agrees that it will refurbish, up -date and
modernize its equipment and furnishings within one year after
the commencement of such renewable term or show evidence
that it has done same before the commencement of such renewal
to rm.
1.04. The University shall have the right within the original term
of this Lease upon ninety (90) days notice to the City to expand the Confer-
ence Center by adding thereto from time to time additional space in the
Convention Center upon paying to the City, concurrently with delivery by
the City to the University of possession of the area being added to the
M
i s
1
3b -
Conference Center, as additional Basic Rent an amount equal to $81. 30 net
per square foot, up to a total of 6, 2?? net square feet (for which the total
additional Basic Rent would be Five Hundred Ten Thousand, Three
Hundred Twenty Dollars ($510, 320)). The area in which such addi-
tional space may be added to the Conference Center is to be on the A-3
Level and presently consists of eight 30-seat seminar rooms. If the
University elects to add to the Conference Center less than all of the
i
eight 30-seat seminar rooms the area to be added shall be such that the
remaining seminar rooms will be conveniently usable by the City. When
the additional area or areas have been added to the Conference Center
all provisions of this Lease which apply to the original area comprising
the Conference Center shall also apply to the additional area.
1.05. The parties hereto recognize that it may be desirable for
the Conference Center to be expanded beyond the area provided for in
Paragraph 1. 04 hereof. If the University wishes to have additional space
the City agrees to give preferential consideration to adding space to the
i
Conference Center area upon payment of additional Basic Rent in an amount
y
to be agreed upon by the parties at the time additional space is agreed upon.
ARTICLE U. DEFINITION OF CERTAIN TERMS
2.01. Wherever in this Lease the term "Conference Center" ap-
pears it shall be construed to mean the areas covered by this Lease, to-
gether with all fixtures and equipment necessary for the operation thereof,
including all heating, air conditioning, lighting, plumbing and electrical
i
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appliances and equipment and all furniture and furnishings at any time
located therein, including auditorium seats, carpeting and draperies and
similar decorative furnishings, and stage lighting and equipment, together
with any and all replacements thereof or additions thereto, provided,
however, the term does not include movable furniture, furnishings and
equipment installed by the University.
2. 02. Wherever in this Lease the term "Term of this Lease"
or words of similar import appear they shall mean either the Initial Term
or the First Additional Term or Second Additional Term, whichever is
then in effect.
2. 03. The term "Fiscal Year" as used in this Lease shall mean
any twelve (12) month period commencing on of one year and
ending on of the next succeeding year.
2. 04. The term "Central Mechanical Plant" shall mean the
Central Mechanical Plant including all equipment needed for the purpose
to be constructed by the City for the supply of chilled water, hot water,
water, gas, air, electricity and other utilities to the various improvements
located in the Convention Center (including those needed to supply utilities
and air conditioning for the Conference Center), which Central Mechanical
Plant includes water tanks, cooling towers, and service lines to and from
said Plant to various portions of buildings located within the Center site.
- 5 -
2.05. The. term "Convention Center" as used in this Lease
shall mean the land, buildings and improvements situate in the City
of Miami, County of Dade, State of Florida, located upon the site
described in the recitals of this Lease.
2.06. The term "Public Areas" as used in this Lease shall
include all grounds and public areas, sidewalks, plazas, stairways,
tunnels, bridges, pools and parkways located within the Convention
t
Center site other than those included in the Conference Center and
those which are leased to other tenants of the Convention Center.
2.07. The term "rent" as used in this Lease shall mean the
basic rent payable by the University to the City.
2.08. The term "additional rent" as used in this Lease shall
mean additional rent payable by the University to the City pursuant
-to the terms of this Lease.
2.09. The captions of this Lease and the table of contents, if
Eany, are for convenience and reference only and in no way define,
limit or describe the scope or intent of this Lease nor in any way
affect this Lease and are not to be deemed or construed in any way
as a part of this Lease nor as supplemental thereto or amendatory
thereof.
'�82-219
ARTICLE III. BASIC RENT, ADDITIONAL RENT AND REIM-
BURSABLE CHARGES
3. 01. Basic Rent. The basic rent to be paid by the University
to the City (from an escrow fund heretofore created by the parties hereto)
shall be in the amount of $ and shall be payable in the form
in which the escrowed funds are held by the escrow agent at the time
of the execution and delivery of this Lease and of the concurrent delivery
of possession of the premises covered hereby by the City to the University.
No basic rent shall be payable for either the First Additional Term or the
Second Additional Term.
3.02. Additional Rent. During each Fiscal Year of the term of
this Lease the University shall pay to the City as additional rent within
thirty (30) days after presentation of a bill therefor the following:
(a) Utility Costs. The cost as determined by meters of
all utilities furnished to the University by the City through
the Central Mechanical Plant. The City agrees that all
utilities such as chilled water, hot water, water, gas, air
and electricity furnished to the University through the
Central Mechanical Plant or otherwise shall be separately
metered so as to reflect the actual consumption of such
utilities by the University or in the event such metering
is not practicable the City shall provide some standard of
measure acceptable to the University for determining the
a correct amount of usage.
t
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+
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(b) Custodial and Maintenance Services. The
cost of custodial and maintenance services, including
' personnel and labor costs,' charges for materials,
tools and equipment, charges for contract services
and such other charges incurred by the City in provid-
ing custodial and maintenance services to the Confer-
ence Center determined annually on the basis
of the area covered by this Lease, with the University
and the City agreeing on the cost or in the
event that they are not able to do so or if the quality
of custodial and maintenance services is unacceptable,
the University has the right to provide its own custo-
dial and maintenance services which must, however, be
at a level acceptable to the City.
(c) Additional rent covering the custodial and main-
tenance services shall be paid within thirty (30) days after
F
presentation of a bill therefor.
3.03. Costs Not To Be Paid By University. The Unive rsity
shall not be required to pay any of the costs of the operation of the
Convention Center other than those specifically provided for in this
_? Lease. Without limiting the generality of the foregoing, the University.
i
►82-219
- 8 -
shall not be required to assume any cost of or for furnishing serv-
ices to any other tenant of the Convention Center or any operation
a
e
or maintenance of any public area or any cost of maintaining secur-
ity and public safety within the total Convention Center, it being
recognized by the City that providing of security and public safety is
a public function and the expense thereof should be paid from public
funds.
3.04. Year -End Adjustment. Within 180 days after the end of
each Fiscal Year the City shall submit to the University a reasonably
detailed statement setting forth;
(a) The costs and expenses actually incurred by
the City during such Fiscal Year upon which the Uni-
versity's additional rent is predicated;
(b) The University's share thereof payable as ad-
ditional rent; and
(c) The calculations evidencing the method by
which such additional rent was determined.
If the aggregate amounts paid by the University as additional rent dur-
ing such Fiscal Year shall exceed the aggregate of the additional rent
shown due and payable on such statement, the City at the request of
the University shall either pay the excess thereof to the University or
O
- 9
credit such excess against payments of additional rent due from the
University at that time or thereafter. If the amounts paid by 'the
University on account of additional rent during such Fiscal Year shall
be less than the additional rent which was required to be paid accord-
ing to such statement, the University shall pay the deficiency to the
City within thirty (30) days after receipt by the University of said
statement. In no event shall the University be chargeable for any
costs or expenses in excess of the prorated cost contemplated in this
Lease without the prior written consent of the University.
3.05. Maintenance of Books and Records by City and Audit
Thereof. The City shall maintain separate books of account and records
reflecting, in accordance with generally accepted accounting procedures,
the costs and expenses upon which the additional rent of the University is deter-
mined. Within 180 days after the receipt by the University of the year-
end statement required to be furnished by the City to the University,
the University at its own cost and expense may cause such books and
records to be audited by its own accountant or by any certified public
accountant during normal business hours. In the event that there shall
be determined by reason of the University's audit that there has been
an overcharge of additional rent by the City for such Fiscal Year, then
the University may demand a refund of such amount and such refund,
82-219
10 -
at the election of the University, may either be credited to the next
payments
of additional rent which become due
until the refund
has
been used
up or the University may require a
refund in cash.
In
the event
that the City does not
accept the
results of the
University's
audit, the
City shall have thirty
(30) days
after receipt of
the results
of such audit within which to so notify the University and such notice
shall be deemed to automatically be a demand by the City that the
matter be submitted to a panel of three independent certified public
accountants (one chosen by the City, one chosen by the University,
and one chosen by the two accountants) for their determination, which
determination shall be binding upon both parties. In the event that
the panel determines that the University is entitled to a refund, then
such refund shall either be paid within fifteen (15) days after written
notice to the City of such determination or, at the election of the
University, it may be applied to future additional rent next due. In
the event the panel of accountants shall determine that there has been
an undercharge by the City for the preceding Fiscal Year, the amount
thereof shall be paid by the University to the City within fifteen (15)
days after
written notice
to that effect.
Each party shall
pay
the
charges of
the accountant
selected by it
and shall pay 5076
of
the
charges of the third accountant.
f dr
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ARTICLE IV. UNIVERSITY'S CONSTITUENCY IN TI3E CONVENTION
CENTER
4.01. In connection with this Lease the City agrees that the
University in the operation of the Conference Center shall be the
primary constituent institution of the Convention Center in the area
of continuing education. Included in any leases or agreements
with other constituents of the Conference Center, the City will require
an undertaking on the part of each constituent to respect the area of
9
primacy of each other constituent.
4.02. In connection with the University's constituency in the
Convention Center the City and the University will support and use
its best efforts to bring about the success of the Convention Center
and the Conference Center as follows:
(a) Each will be dedicated to providing the widest
possible service to the public in their -respective areas.
(b) A cooperative and friendly working relation-
ship will be maintained among all the constituent insti-
tutions for the purpose of establishing the Center as
being dedicated to the broadest public service and
achieving operating economy and efficiency.
(c) A recognition by the constituent institutions
that the Convention Center is more than a physical
82-219
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home for those who occupy the premises, being also
an important cultural center of the community which F
is dedicated to providing also continuing education
for the residents of this area and as an inducement
for visitors to attend activities conducted at the
Center.
E 4.03. Subject to the University's obligations as set forth in
this Article, the University shall retain complete autonomy over its
operations and activities, including without limitation autonomy over
its educational, financial and administrative affairs and policies.
4. 04. The City has established a department headed by a
Director who is in charge of the operation of the Convention Center.
The City agrees to continue such department so long as this Lease is
in effect. The City also has created an Advisory Committee to the
department consisting of five members. That Committee at all times
shall consist of five members appointed by the City Commission of the
City of Miami from a list submitted to the City Commission by the
University. That department, the Advisory Committee and the method
of selection shall continue throughout the term of this Lease and is an
essential element of this Lease.
' - 13 -
4.05, The City shall not use, authorize or permit the use
of the name of the University or of any symbol, device or other
identification of the University for' advertising purposes or in any
other manner without the express written consent of the University.
The City and the University each agree to consult with the other with
i
;
regard to changes in the decor of the Conference Center or the Con-
vention Center and with regard to placement of art objects within the
i
Convention Center.
ARTICLE HOTEL AND PARKING GARAGE
S. 01. The City has entered into agreements relating to a 1, 000
car parking garage and a hotel, both located on the Convention Center
site. The City agrees that so long as this Lease is in good standing in
either the initial or a renewal term the City shall cause the owner and
operator of the parking garage to provide to the University adequate
parking, which in no event shall be less than 300 spaces, to be available
upon scheduled request at the lowest rate charged to any other user and
up to 25 spaces to be available on a continuous basis for administrative
parking at the lowest rate charged to others who use space in the parking
Igarage.
5. 02. The City also agrees during that period to cause the
hotel operator to reimburse the University for conference staff
82-219
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administrative services for arranging and coordinating conferences
and bringing participants into the hotel rooms at not less than 15016 of
the University visitor room income together with amounts equivalent
to traditional percentage payments and reimbursements for use of
activities and services of the hotal normally paid to other agencies
when providing or arranging for similar reservations or usage.
5.03. The University is to have schedule priority as to all
facilities of the hotel for its conferences and visitors, including priority
on the making of reservations.
5.04. The University is to have schedule priority in utilizing
the hotel for training and internship purposes and special programs and
seminars in hotel management, hospitality and travel.
5.05. The hotel is to continue to operate as a luxury hotel
having not less than 250 rooms throughout the term of this lease.
- 14 -
ARTICLE VI. CONTRACTOR'S GUARANTEES
6.01. The leased premises having been recently constructed
may contain defects due to faulty materials or installation for which
the City has claims against the contractor, subcontractors or manu-
facturers. The City agrees that at the request of the University it
will either proceed against such contractor, subcontractors or manu-
facturers on warranties which it has obtained or will assign such
claims to the University so that it may proceed either in its own
name or in the name of the City in connection with enforcement of
any rights.
ARTICLE VIL USE OF CONFERENCE CENTER
7.01. The University shall have the right to use the Confer-
ence Center for all types of educational activities, with emphasis upon
continuing education, and for such other lawful activities as are within
the scope of the purposes of the University and which do not violate
areas of primacy of other constituent institutions within the Convention
Center.
7.02. The University covenants that it will not use or occupy
or permit to be used or occupied any part of the Conference Center
for any dangerous, noxious or offensive trade or business and will
not cause or maintain any nuisance in, at or on the Conference Center
82-219
15 -
nor use the same for purposes other than as set forth herein.
7.03. The University shall have the right to make available
for use by others the Conference Center or various portions thereof
from time to time for uses similar to those for which the premises
are to be used by the University and agrees to make the facilities
available to the City and at the request of the City on a reasonable
basis comparable with the rental fees payable on a commercial basis.
7.04. Proceeds from tuitions, fees, tickets, fund raising cam-
paigns, or other sources of revenue of the University related to the
use of the Conference Center shall be the sole property of the Uni-
versity without accountability therefor to the City.
7.05.
Rights and licenses pertaining
to the University's
ac-
tivities shall
be controlled exclusively by the
University. The
Uni-
versity may permit others to use space within the Conference Center
as may be appropriate in that regard.
7.06. The University shall have the sole and exclusive right
and responsibility for the hiring of and administration of all personnel
employed at the Conference Center and such personnel shall be em-
ployees of the University. Nothing in this Lease shall require the
University to employ or engage or utilize the services of any City
personnel or to prohibit the University from contracting with any
• 16 -
outside person, firm or corporation for the performing of services
in connection with the operation of the Conference Center
which the University is required to perform under the terms of the
Lease.
ARTICLE VIII. COMPLIANCE WITH LAWS, ORDINANCES AND
ORDERS
8.01. The University throughout the term of this Lease at
its own cost and expense shall promptly comply with all applicable
laws and ordinances and the lawful orders, rules, regulations and
requirements of all Federal and State governments, departments,
commissions, boards and officers thereof relating to the Conference
Center. The University also shall observe and comply with require-
ments of policies of public liability, fire and other policies of insur-
ance which may at any time be in force with respect to the Confer-
ence Center. The City also shall comply at its own cost and expense
with provisions, covenants and conditions of this Lease on its part to
be observed and performed.
8.02. The City shall comply with all applicable laws, ordi-
nances and lawful orders, rules, regulations and requirements of all
Federal and State governments, departments, commissions, boards
and officers relating to structural or non-structural repairs or al-
terations.
i
i
f
5
82-219
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8.03. The University shall have the right at its own cost
and expense to contest by appropriate proceedings the validity :or
application of any law, ordinance, order, rule, regulation or require-
ment of the nature herein referred to and to postpone compliance
therewith until after the final determination of any proceedings, pro-
vided that all such proceedings shall be prosecuted with all due dili-
gence and dispatch and if any lien, charge or .civil liability is
incurred by reason ' of non-compliance the University may, neverthe-
less, make the contest aforesaid and delay compliance as aforesaid
provided that the University provides the City with security reason-
ably satisfactory to the City against any loss or injury by reason of
such non-compliance or delay and prosecutes the contest with due
diligence, and further provided that the City shall not be subject to
any criminal penalties or to prosecution for a crime by reason of
such contest.
ARTICLE IX. MAINTENANCE AND REPAIR OF THE CONFERENCE
CENTER
9.01. The University covenants throughout the term of this
Lease and any renewal thereof at its own cost and expense:
(a) To maintain the leased area' and keep the same
in good order and condition and promptly make all neces-
sary interior repairs.
- 18 -
(b) To take good care of, repair, replace and
maintain the contents, equipment, furnishings, fixtures,
furniture and appliances in the Conference Center. The
University shall remove and dispose of any contents,
equipment, furnishings, fixtures, furniture, and appliances
which are worn out and shall install in the Conference
Center in substitution for the property so removed other
property, either similar or dissimilar, appropriate for use
in the Conference Center.
When used in this Article the term "repairs" shall include replace-
ments or renewals when necessary and all such repairs made by
the University shall be at least equal in quality and class to the
original work.
9.02. Subject to the provisions of Section 13. 01 hereof all
additions, improvements, replacements and alterations to the Confer-
ence Center made or installed by the University and equipment,
furnishings, fixtures and appliances which may be installed by the
University in substitution for equipment, furnishings, fixtures and
appliances originally installed by the City shall immediately upon com-
pletion of the installation thereof be and become the property of the
82-219
- 19 -
City without payment therefor by the City and at the termination
of this Lease or any renewal thereof be surrendered to the City
in good order and repair, reasonable wear and tear excepted.
9.03. The University covenants and agrees that it will
maintain the Conference Center or cause it to be maintained in
such a manner that the standard of cleanliness and neatness
adhered to in the Convention Center as a whole will be met.
ARTICLE X. MAINTENANCE AND REPAIR OF THE CONVENTION
CENTER BY THE CITY
10.01. The City covenants throughout the term of this Lease
at the City's sole cost and expense:
(a) To maintain the Convention Center prop-
erty as a whole and keep the same in good order and
condition and promptly make all necessary repairs
thereto and renewals thereof, interior and exterior,
structural and non-structural, ordinary as well as extra-
ordinary, and foreseen as well as unforeseen.
f 0
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(b) To take good care of, repair, replace and •
maintain the contents, equipment, furnishings, fixtures,
furniture and appliances throughout the Convention Center
and to remove and dispose of any contents, equipment,
furnishings, fixtures, furniture and appliances which are
worn out and install in substitution therefor other prop-
erty, whether similar or dissimilar, appropriate for use
in the Convention Center.
(c) To take care of, repair and maintain and replace
machinery, fixtures, service lines, and equipment located
throughout the Convention Center, including heating,
ventilating and air conditioning systems.
(d) The City has the right to require other lessees
of areas within the Convention Center to assume the obli-
gations of the City as set' forth in subparagraphs (a), (b)
and (c) above but the City shall not have the obligation
to require any such lessee to perform such obligations.
(e) The City shall keep in good order and repair
j in accordance with high standards of cleanliness and ap-
pearance and operation all public areas and common
facilities in the Convention Center and take such steps
as may be reasonably necessary to ensure proper
82-219
maintenance and repair of all improvements located
in the Convention Center and the contents, equipment,
furnishings, fixtures and appliances therein.
ARTICLE XI. SERVICES TO BE FURNISHED BY THE CITY
U. 01. The City shall operate, maintain, repair, replace and
renew all machinery, fixtures, equipment and appliances constituting the
Central Mechanical Plant and shall furnish chilled water, hot water, water,
gas, air, electricity and all other utilities and services to the Conference
Center necessary for the operation of the heating, ventilating and air
conditioning systems therein.
11. 02. In the event of a discontinuance or interruption of the
operation of the Central Mechanical Plant or any other facilities used in
connection with the furnishing of services to the Conference Center re-
quired to be furnished by the City under this Lease by reason of accidents,
emergencies, strikes or the making of repairs or changes which the
City is required to make under this Lease or by law or in good faith deems
necessary or by reason of inability to secure proper supplies of fuel,
chilled water, hot water, water, gas, air, electricity or other utility
or labor or by reason of any cause beyond the City's reasonable control,
t he City shall not be liable to the University for inconvenience, annoyance,
interruption or injury to the University so long as the City has used every
reasonable effort to provide such service.
.
r
• 22 -
11.03. In each instance of an interruption of service the
City
shall exercise
reasonable diligence to eliminate
the causq
of
the
stoppage and to
effect restoration of service and
shall give
the
University reasonable notice when possible of the commencement
and anticipated duration of the stoppage. In the event of any. such
interruption of service the University shall have the right, but not
4
the obligation, to procure service from any other source and if it
does so it will not be obligated to again look to the City for such
service but may do so at its option.
ARTICLE XII. CHANGES AND ALTERATIONS
12.01. The University shall have the right to make alterations
in the interior of the Conference Center, provided however that any
such changes which affect other portions of the Convention Center
shall not be made without first obtaining written consent of the City.
Any such alterations shall be made at the sole cost and expense of
the University.
12.02. No change or alteration, whether or not the City's
approval is required, shall be undertaken until (a) the University shall
have procured and paid for all municipal and other governmental per-
mits and authorizations, and (b) no change or alteration requiring the
t 8 2 - 2 1 9
- 23 -
City's approval shall be undertaken until a statement in writing
signed by the University setting forth the nature and extent of such
change or alteration and the estimated cost thereof shall have been
submitted to and approved by the City.
12.03. Any alteration shall be conducted
under the supervision of an architect or engineer selected by the
University who shall be acceptable to the City and shall not be under-
taken until detailed plans and specifications prepared by such architect
or engineer have been submitted to and approved by the City, provided
however that the City does not have the right to unreasonably withhold
approval of plans and specifications.
12.04. Any change or alteration when completed shall be of such
a nature so as not to substantially change the character nor adversely
affect the value of the Conference Center or the Convention Center nor
materially reduce the gross cubic content of the Conference Center or
Convention Center nor impair the structural strength thereof nor
diminish the utility of the area which is changed.
12.05. All work done in connection with any change or alteration
shall be done promptly and in a good and workmanlike manner and in
compliance with applicable municipal building and zoning laws and all
other laws, ordinances, orders, rules, regulations and requirements of
- 24 ..
all Federal, State and municipal governments and appropriate depart-
ments, commissions, boards and officers thereof and in accordance
with orders, rules and regulations of the New York Board
of Fire Underwriters or any other body hereafter constituted exercising
similar functions.
12.06. The cost of any change or alteration shall be paid in
cash or its equivalent from time to time as and when such cost or
any installment thereof shall become due and payable so that the Con -
Terence Center area shall not be subjected to liens for labor and
materials supplied or claimed to have been supplied to the University.
12.07. The University at its sole cost and expense shall main -
twin Workmen's Compensation Insurance covering all persons employed
in connection with the change or alteration and with respect to whom
death or bodily injury claims could be asserted against the City or
the University and general liability insurance for the benefit of the
City and the University expressly covering the additional hazards due
to the change or alteration. The limits of the foregoing insurance
shall be not less than those specified in Article XVIII , Section 18. 01.
All such insurance shall be in a company or companies of recognized
responsibility authorized to do business in - the State of Florida and
all such policies or certificates therefor issued by the respective
insurers bearing notations evidencing the payment of premiums or
082-219
accompanied by other evidence satisfactory to the City of such pay-
ment shall be delivered to the City. The general liability insurance
provided for in this Section may be effected by appropriate endorse -
meet if obtainable upon insurance referred to in Article XVIII, Section
18.01.
12.08. The City covenants and agrees not to make any changes
or alterations in or about the Conference Center or which would affect
the usefulness of the Conference Center, whether structural or other-
wise, without the prior written consent of the University. Any such
changes or alterations shall be at the sole cost and expense of the
City and shall be made in all cases subject to imposition on the City
of the conditions imposed on the University in the previous Sections
of this Article, except that the name "University" whenever appearing
in said Sections shall be deemed to read "City" and the name "City"
whenever appearing in said Sections shall be deemed to read "Uni-
versity".
ARTICLE XHI. UNIVERSITY'S RIGHT TO REMOVE ITS EQUIPMENT
13.01. Notwithstanding anything to the contrary contained in
Section 9. 02 , all furniture, furnishings, murals, works of art,
equipment or fixtures owned by the University as of the date of the
commencement of the Initial Terse of this Lease and theretofore or
it -
- 26 -
thereafter installed in the Conference Center shall be and remain
the property of the University. At or before the expiration of the
term of this Lease or at the expiration of a renewal term in the
event the Lease is renewed, the University shall have the right to
remove from the Conference Center any furniture, furnishings, murals,
works
of art,
equipment
or fixtures at
any
time
installed
by
the
Uni-
versity
in the
Conference
Center other
than
such
thereof
as
shall
have
been installed by the University in substitution for or replacement of
furniture, furnishings, murals, works of art, equipment or fixtures
owned and installed in the Conference Center by the City on the date
of commencement of this Lease. The University shall restore the
premises and pay for any damage or injury resulting from the removal
of such furniture, furnishings, murals, works of art, equipment and
fixtures.
13.02. Within three years after the commencement of the term
of this Lease an inventory shall be made by representatives of the
City and of the University of all furniture, furnishings, murals, works
of art, equipment and fixtures in the Conference Center owned by the
University, which said inventory shall be deemed annexed to this
Lease as Exhibit a Thereafter the University shall notify the
City of all additions to and deletions from said inventory and shall
afford the City the opportunity to verify the same.
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ARTICLE XIV. LIENS
14.01. 'In case any mechanic's lien shall be filed against
the Conference Center by reason of work, labor, services or mate-
rials supplied or claimed to have been supplied to the University
or anyone holding or occupying the Conference Center or any part
thereof through or under the University in connection with any repairs,
improvements, changes, alterations, reconstruction or other work,
the University shall within thirty (30) days after written notice cause
the same to be discharged by bonding, payment or otherwise. In
case any mechanic's lien shall be filed against the Conference Center
by reason of any work, labor, services or materials supplied or
claimed to have been supplied to the Center in connection with any
repairs, improvements, changes, alterations, reconstruction or other
work prior to the execution of the date of this Lease, the City shall
within thirty (30) days after written notice cause the same to be dis-
charged by bonding, payment or otherwise.
ARTICLE XV. ASSIGNMENT, SUBLEASE, SALE AND MORTGAGING
OF THE CONFERENCE CENTER
15.01. The University shall have the right to assign or trans-
fer this Lease or to sublease the Conference Center or any part thereof
without the prior written consent of the City, provided that the assignee
- 28 -
or transferee or sublessee shall be obligated to use the premises
so assigned,
transferred or subleased for
the same
purposes
for
which they can be used by the University
under the
terms of
this
Lease, and provided further that the City shall have a right of
first refusal in the event of a sublease of the entire Conference
Center or an assignment of this lease within thirty (30) days after
receipt of written notice of an intention by the University to sublease
the entire Conference Center or assign this Lease.
15.02. The City agrees that without the prior written approval
of the University the City will not sell or dispose of the Convention
Center or the Conference Center or any part of either or lease any
part of the Convention Center to any other person, firm or corporation,, ,
f
public or private, if as a result of such sale, disposition, lease,
assignment or transfer the City is no longer in a position to perform
its obligations to the University under the terms of this Lease.
15.03. The City agrees that without the prior written approval
of the University the City will not mortgage or otherwise encumber
the Conference Center and will not mortgage, pledge or otherwise
encumber this Lease.
ARTICLE XVI. USE OF CONFERENCE CENTER BY CITY
16.01. The University hereby grants to the City and to entities
82 -21 9
-2g.
which are using the Convention Center the right, privilege and license
to use the Conference Center or portions thereof and the special equipment
and facilities located therein from time to time on a priority basis, pro-
vided however that such use does not conflict• with use by the University or
use by others to which the University was committed prior to the request
from the City. The University will use its best efforts to make available
to the City at its request such space. The special equipment and facilities
and the space will be rented to the City and at its request at rates which are
comparable with rates charged in the community.
ARTICLE XVII. USE OF CONVENTION CENTER FACILITIES
17. 01. The University and other entities using the Conference Center
shall have the right to use the whole or any part of the Convention Center and
special equipment and facilities therein. Such use will be afforded on a first
priority basis to the University and at its request to such other entity when
the particular areas, equipment or facilities sought to be used have not pre-
viously been scheduled for City sponsored activities. The University or user
will pay to the City for use of City owned space, equipment and facilities a
reasonable rental comparable to that paid by others. The University is not
obligated to pay rent for use of common areas such as corridors, hallways,
toilets, stairs, etc. Also, the University is to be able to use without payment
of rent a secured storage area on the A-1 Level for possible interim storage
and an area in hallways or corridors or lobbies adjoining the Conference
Center for various displays provided that such use of hallways, corridors or
j lobbies does not obstruct use by others and does not violate fire codes.
e
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17. 02. The City agrees that it will not rent on a regular and cotl-
tinuing basis to any other private or public educational institution of higher
education for a use which is similar to or would compete with the use
which the University makes of the Conference Center.
17. 03. The City and the University each agree that neither will
solicit conferences or conventions offering educational or other programs
similar to any program or convention previously conducted by the other party.
ARTICLE XVLII. INSURANCE
18. 01. The City agrees throughout the term of this Lease:
(a) To keep the Conference Center and the furniture and
equipment therein owned by the City insured against loss or
damage by fire and such other risks as may be included in the
broadest form of extended coverage endorsement from time to
time reasonably available, vandalism and malicious mischief
and sprinkler leakage, all in an amount not less than 100010 of
the replacement value of the Conference Center and the above -
described equipment. The insurance shall have a loss payable
clause in favor of the University covering its interest in the
property as Lessee. The premium attributable to the proceeds
of insurance payable to the University in the event of loss shall
be borne by the University and if paid by the City the City
shall be entitled to prompt
� p p reimbursement.
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(b) To maintain for the benefit of itself and the
University public liability insurance written on a com-
prehensive general liability form protecting and indemni-
fying the City and the University against any and all
claims or damages to persons or property or for the
loss of life or property occurring upon, in or about
the Conference Center or areas adjacent thereto, such
insurance to afford protection to the limit of not less
than
$5 million
in respect
of
bodily injury
or death to
one
person and
to the limit
of
not less than
$10 million
in respect of any one occurrence and to a limit of not
less than $ 100, 000 for property damage.
(c) To maintain insurance against such other hazards
and in such amounts as are usually insured against by
owners of buildings of a similar class and character to
the Conference Center.
18.02. All such insurance provided for in this Article shall
be effected under valid and enforceable policies issued by insurers of
recognized responsibility authorized to do business in the State of
Florida.
18.03. Upon execution of this Lease and thereafter not less
than thirty days prior to the expiration dates of the expiring policies
C
- 32 -
theretofore furnished pursuant to this Article, originals or duplicates
of the
policy
or policies
of the character
described
in this Article
issued
by the
respective
insurers bearing
notations
evidencing the
payment of premiums or accompanied by other evidence satisfactory
to the University shall be delivereca by the City to the University.
18.04. All policies of insurance provided for in Section 18. 01
of this Article shall name the City and the University as insureds
as their respective interest may appear and the loss, if any, under
such policies shall be adjusted with the insurance companies by the
City and the University but the proceeds shall be paid to the University
to the extent of its interest as Lessee and any remaining balance, if
any, shall be paid to the City. Any proceeds of insurance covering
loss of personal property belonging to the University shall be paid to
the University. All policies shall provide that any loss shall be pay-
able to the City or the University notwithstanding any act of neglect
of the City or the University which might otherwise result in for-
feiture of the insurance and shall to the extent obtainable contain an
agreement by such insurers that such policies shall not be cancelled
without at least ten (10) days prior written notice to the University.
In addition to the provisions for the purchase of insurance by the
City, the University shall have the right to obtain insurance upon
82-219
- 33 -
its own property located at the Conference Center with proceeds
payable exclusively to the University. Such policies are to be. at
the sole expense of the University.
18.05. Each party hereby releases the other party with re-
spect to any claim (including a claim for negligence) which it. might
otherwise
have against
the other
party for
loss,
damage or destruc-
tion with
respect to its
property
(including
rental
value or business
interest) occurring during the term of this Lease and with respect
and to the extent to which it is insured under a policy or policies
;containing a waiver of subrogation or permission to release liability
or naming the other party as an additional insured as provided in this
Article. If notwithstanding the recovery of insurance proceeds by
either party for loss, damage or destruction of its property (or rental
value or business interest) the other party is liable to the first party
with respect thereto or is obligated under this Lease to make replace-
ment, repair or restoration of payment, then provided the first party's
right of full recovery under its insurance policies is not thereby
prejudiced or otherwise adversely affected the amount of the net pro -
seeds of the first party's insurance against such loss, damage or
destruction shall be offset against the second party's liability to the
first party therefor or shall be made available to the second party to
C
34 -
pay for replacement, repair or restoration as the case may be.
18.06.
The
waiver of subrogation
or permission to release
referred to in
the immediately
preceding
Section shall extend to
agents of each party and its or their employees and to such agents
and other persons and entities as and to the extent that such .waiver
or permission is effective as to them.
ARTICLE XIX. DAMAGE OR DESTRUCTION
19.01. If the Conference Center shall be partially or totally
damaged or destroyed by fire or other insured casualty, then whether
or not
the
damage or destruction shall have
resulted
from default or
neglect
of
the University or its employees,
agents or
visitors (and
if this Lease shall not have been terminated as in this Article here-
inafter provided) the City shall repair the damage and restore and
rebuild the Conference Center (subject to changes or alterations
mutually agreed upon between the City and the University) with reason-
able dispatch after notice to the City of the damage or destruction,
provided however that the City shall not be liable for any losses to
i or be required to repair or replace any property, personal or other-
wise, owned by the University, its personnel or others which is damaged
or destroyed by such casualty and provided further that the University
agrees to turn over to the City the proceeds of insurance received by
�82-229
• 35 -
it for its loss as Lessee wider the terms of this Lease or any re-
newal hereof
to apply against
the cost of
such repair
and restoration.
If
the Conference
Center shall
be partially
destroyed by
fire or other casualty there shall be no abatement in the basic rent
but the additional rent payable hereunder shall abate to the extent
that the Conference Center shall have been rendered untenartable for
the period from the date of such damage or destruction to the date
the damage shall be repaired or restored, provided however that such
abatement of additional rental shall not exceed the net amount of any
insurance proceeds paid to the City, if any, under any policy of
business interruption insurance which it holds. If the Conference
Center or a major portion thereof shall be totally damaged or de-
stroyed or rendered completely untenantable on account of fire or
other cause, the additional rents hereunder shall be abated to the ex-
tent of any insurance proceeds paid to the City, if any, under any
policy of business interruption insurance it may hold for the period
from the date of the damage or destruction until the City, subject
to the provisions hereof, shall have repaired, restored and rebuilt the
Conference Center, provided however that should the University re-
occupy a portion of the Conference Center during the period the
restoration work is taking place and prior to the time that the same
- 36 -
is made completely tenantable additional rent allocated to such
portion shall
be
payable
by the University from the date of such
occupancy to
the
date of
tenantability.
19.02. Notwithstanding the foregoing, if the cost of so re-
storing the Conference Center shall
exceed
500/6 of
the
replacement
cost thereof the City shall have the
right to
elect
not
to effect such
restoration and in that event the University shall have the right to
retain all proceeds of insurance received by it under the terms of
this Lease free from any obligation to turn any portion over to the
City.
19.03. If the Central Mechanical Plant or any other facilities
-used to furnish any utilities or other services to the Conference
Center or if any of the public areas within the Convention Center
shall be totally damaged or destroyed by fire or other casualty, the
City shall repair the damage so as to restore the same to its previous
condition with reasonable dispatch after notice to the City of the
damage or destruction. If the hotel, stores or the parking garage
to be constructed on the premises are damaged or destroyed, the
City will use its best efforts to cause the damage to be repaired so
that the Convention Center is restored to its- condition immediately
prior to such damage.
R82-219
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ARTICLE XX. CONDEMNATION
20.01. In the event the Conference Center or any part thereof
is taken by condemnation, the award shall be paid to the University
to the extent of its interest under the terms of this Lease and any
renewal hereof. In this connection it is understood that no condemna-
tion will be
undertaken by the City of less
than
all of the Conference
Center and
if the City exercises its power
of condemnation as to the
whole of the Conference Center, the University
shall be entitled to be
made whole
to the same extent as it would
have
been if the University
terminates
this Lease because of a default
upon
the part of the City.
ARTICLE XXI. ACCESS TO AND INSPECTION OF THE CONFERENCE
CENTER AREA
21.01. The University shall provide reasonable access to the
Conference Center as may be necessary in order for the City to
inspect, maintain and repair piping and other mechanical and electri-
cal connections, machinery and equipment servicing the Central
Mechanical Plant, the Conference Center or any other portion of the
Convention Center to City personnel engaged in such inspection,
operation, repair and maintenance. Such personnel shall also be
granted access through the Conference Center to other areas if neces-
sary for purposes of servicing equipment serving other parts of the
- 38 -
Convention Center. Such access shall be provided twenty-four hours
each day, subject only to reasonable security regulations and pro-
cedures from time to time established by the City * and the University.
R
City personnel requiring such access shall be provided with necessary
keys to effectively perform their duties.
21.02. The University agrees to permit authorized representa-
tives of the City to enter the Conference Center area for the purpose
of
inspecting
the same during
the last year of the term of this Lease
at
reasonable
hours and upon
reasonable notice.
ARTICLE: XXII. INDEMNIFICATION
22.01. The University agrees to indemnify and save harmless
the City
against and
from any and all expense, loss or
liability paid,
suffered
or incurred
and against any and all judgments
and claims by
or on behalf of any person, including employees of the City, firm
or corporation (municipal or private) arising from:
(a) The conduct or management of or from any work
or thing whatsoever done in and about the Conference
Center;
(b)
Any
condition of
any portion of the Conference
Center
or any
other area
which the University is required
82-219
0
V V
- 39 -
to operate, maintain or repair under the terms of this
Lease;
(c) Any breach or default on the part of the Uni-
versity in the performance of any covenant or agree-
ment on the part of the University to be performed
pursuant to the terms of this Lease;
(d)
Any act
or negligence
of the University, or
any of
its agents,
contractors,
servants, employees or
licensees;
(e) Any accident, injury or damage howsoever
caused to any person occurring during the term of this
Lease in or about the portions of the Conference Center
or any other area which the University is required to
operate, maintain or repair under the terms of this
Lease.
The University will further indemnify and save the City harmless
against and from any and all costs, expenses and liabilities incurred
because of any such claim or action or proceeding brought thereon.
In case any action or proceeding be brought against the City by rea-
son of any such claim, the University upon notice from the City
covenants to resist or defend such action or proceeding by counsel
40 -
reasonably satisfactory to the City, unless such claims shall be
resisted or defended by the insurer under any policy of insurance.
22.02. The City agrees to indemnify and save harmless
the University against any and all expense, loss or liability paid,
suffered or incurred and against any and all judgments and claims
by or on behalf of any person, including employees of the University,
firm or corporation (municipal or private) arising from:
(a) The conduct or management of or from any
work or thing whatsoever done in or about the Confer-
ence Center or in or about any other areas of the
Convention Center which has been done by the City or
which the City is required to do or perform under the
terms of this Lease;
(b)
Any condition of
any portion of the
Conference
Center
or any other area
of the Convention
Center which
the City is required to operate, maintain or repair under
the terms of this Lease;
2
(c) Any breach or default on the part of the City
in the performance of any covenant or agreement on the
part of the City to be performed pursuant to the terms
of this Lease;
82-219
- 41 -
(d) Any act or negligence of the City, or any of
its agents, contractors, servants, employees or li-
censees;
(e) Any accident, injury or damage howsoever
I
caused to any person occurring during the term of this'
Lease in or about the portions of the Conference Center
or any other portions of the Convention Center which
the City is required to operate, maintain or repair
under the terms of this Lease.
The City will further indemnify and save harmless the University
against and from any and all costs, expenses and liabilities incurred
because of any such claim or action or proceeding brought thereon.
In case any action or proceeding be brought against the University
by reason of any such claim, the City, upon notice from the Uni-
versity, covenants to resist or defend such action or proceeding by
counsel reasonably satisfactory to the University, unless such claim
shall be resisted or defended by the insurer under any policy of
insurance.
ARTICLE XXIII. RIGHT TO PERFORM BY EITHER PARTY -
ADDITIONAL RENT
23.01.
If
either
party hereto fails to
perform any
of its obli-
gations under
this
Lease
within the applicable
time limit
herein,
f
-42-
then the other party shall have the right, but not the obligation,
to perform the salve without further notice or demand to the default-
ing
party and without waiving or
releasing the
defaulting party from
any
obligations of such defaulting
party in this
Lease contained. All
suns paid by either party pursuant to this Section and all reasonable
and necessary incidental costs and expenses in connection therewith
shall be paid either by adding or deducting, as the case may be,
such costs and expenses from any installments of rent thereafter
payable hereunder. All sums which may
become
payable
by the
University to the City under this Section
shall be
deemed
additional
rent hereunder and the City shall have (in addition to any other right
or remedy of the City) the same rights and remedies in the event
of the non-payment of any such sums by the University as in the
case of default by the University in the payment of the rent and
reimbursable charges.
ARTICLE XXIV. CONDITIONAL LIMITATIONS - DEFAULT PROVI-
SIONS
24.01. If, during the term of this Lease the University
shall default in fulfilling any of the terms, covenants or conditions
of this Lease (other than the covenants for the payment of rent,
additional rent or reimbursable charges), the City may give to the
University notice of any such default or of the happening of any
82-�79
-43-
contingency in this Section referred to, and if at the expiration of
45 days
after
the service
of such a
notice
the default or
the
con-
tingency
upon
which said
notice was
based
shall continue
to
exist,
or in the case of a default or contingency which cannot with due
diligence be cured within a period of 45 days, if the University fails
to proceed promptly after the service of such notice and with all
due diligence to cure the same and thereafter to prosecute the curing
of such default with all due diligence (it being intended that in con-
nection with a default not susceptible of being cured with due diligence
within 45 days, because of unavoidable delays or for any other reason,
that the time of the University within which to cure the same shall be
extended for such period as may be necessary to complete the same
with reasonable diligence) the City may give to the University a notice
of intention to end the term of this Lease at the expiration of 10 days
from the date of the service of such second notice, and at the expira-
tion of said 10 days, the term of this Lease and all right, title and
interest of the University hereunder shall expire as fully and com-
pletely as if that day were the date herein specifically fixed for the
expiration of the term of this Lease and the University will then quit
and surrender the Conference Center to the City.
24.02. If (A) the University shall (1) file a petition in bank-
ruptcy or voluntarily take the benefit of any insolvency act, or
t
I
- 44 -
(2) file, under any law, a petition for the extension of the time of
payment, composition, adjustment, modification, settlement or'
satisfaction of the liabilities of the University, or for the reorgani-
zation not involving the University's liabilities, or (3) institute any
action or proceeding for the liquidation of the University, or (4) make
an assignment for the benefit of creditors, or (B) if a permanent re-
ceiver shall be appointed for the property of the University by a
court of competent jurisdiction by reason of the insolvency or alleged
insolvency of the University and such receivership shall not be vacated
or set aside within 60 days after the appointment of such receiver, or
(C) if any execution or attachment shall be issued against the University
and its interests under this Lease by a court of competent jurisdiction
and the same shall not be vacated or set aside within 60 days after
the same shall have been levied, then and in any such event the City
may give to the University notice of intention to end the term of this
Lease at the expiration of 5 days from the date of the service of such
notice, and at the expiration of said 5 days, the term of this Lease
and all right, title and interest of the University hereunder shall
expire as fully and completely as if that day were the date herein
specifically fixed for the expiration of the terns of this Lease, and the
University will then quit and surrender the Conference Center.
82-219
-45-
24.03. If the University shall make default in the payment
of the additional rent or reimbursable charges or any part of :the
same, and such default shall continue for 20 days after notice
thereof by the City, or if this Lease shall expire as in Section
i 24. 01 or Section 24. 02
of this Article, the
City or the
City's agents
may immediately or at
any time thereafter
re-enter the
Conference
Center and remove all persons and all or any property therefrom,
either by summary dispossess proceedings or by any suitable action
or proceeding at law, or by force or otherwise, without being liable
to indictment, prosecution or damages therefor, and repossess and
enjoy said premises, together with all additions, alterations and
improvements thereto. Upon the expiration of the term of this Lease
by reason of the happening of any of the events hereinabove described
in Section 24.01 or Section 24.02, or in the event of the termination
of this Lease by summary dispossess proceeding or under any provi-
sion of law now or at any time hereafter in force, by reason of or
based upon or arising out of a default under or breach of this Lease
on the part of the University, or upon the City recovering possession
of the Conference Center in the manner or in any of the circumstances
hereinbefore mentioned, or in any other manner or circumstances
whatsoever, whether with or without legal proceedings, by reason of
r
w r r 1
. r r
- 46 -
or based or
arising out of a default under or
breach of
this Lease
on the part
of the University, the University
shall pay
to the City
the rent and all other charges required to be paid by the University
up to the time of such termination of this Lease, or of such re-
covery of possession of the Conference Center by the City, as the
case may be. If this Lease shall be terminated pursuant to Section
24.02 of this Article, the City shall be entitled, notwithstanding
any other provision of this Lease, or any present or future law,
to recover from the University the rraximum amount which may be.
allowed by
or under any statute or
rule of
law governing any proceed-
ing of the
nature described in said
Section
24.02.
24.04. In the event that any dispute shall arise between the
City and the University as to the University's obligations to make any
payment or
to take or
desist
from any action under the terms of
this Lease,
and such
dispute
is promptly referred by the University
to arbitration pursuant to the provisions of Article XXXI hereof, no
default shall be deemed to exist on the part of the University and
the period for remedying such default or breach shall not be deemed
to commence until the date of the arbitrator's award determining such
dispute, provided that:
(a) The failure of the University to make such
payment or to take or desist from such action shall
82-211)
-4?-
not subject the City to any fine or penalty or to
prosecution for a crime or cause the Conference ,
Center to be vacated, or cause any lien on the Con -
Terence Center or the University's leasehold estate
to be foreclosed or otherwise enforced;
(b) The failure of the University to make any
such payment or to take or desist from any such
action shall not result in the cancellation of any in-
surance theretofore in effect with respect to the
Conference Center.
24.05. The University waives and releases any and all rights
of redemption under
any law or statute now or hereafter in force or
enacted in case this
Lease is terminated by
the City under any pro-
visions of this Article or in case the University
shall be
dispossessed
by a judgment or by
warrant of any court or
judge. The
Universi`_:-
also waives and will
waive any and all right
to a trial by
a jury in
the event that any action
or proceeding shall
be instituted
by the CII.y.
The terms "enter", "entry" or "re-entry", as used in this Lease,
are not restricted to their technical legal meaning. Nothing herin
contained, however, shall be deemed a waiver of any of the provi-
sions of Articles and of this Lease.
dir
•48-
24.06. In the event the City defaults under the terms of this
Lease, the University shall have .the right to so notify the City and
unless such default is cured within a period of 30 days after delivery
of such notice in writing, the University shall have the right to
terminate this Lease for cause and to receive from the City a sum
of money sufficient to replace the facilities covered by this Lease
at a different location and to cover the amount of income lost by virtue
of moving from the Conference Center within the Convention Center to
a different location.
ARTICLE XXV. QUIET ENJOYMENT
25.01. The City covenants and agrees that the University,
upon paying the rent and all other charges herein provided for and
observing and keeping the covenants, agreements and conditions of
this Lease on its part to be observed and kept, shall lawfully and
quietly hold, occupy and enjoy the Conference Center during the term
of this Lease without hindrance or molestation of anyone claiming by,
through or under the City, subject to the terms of this Lease.
ARTICLE XXVI. SURRENDER OF CONFERENCE CENTER
26.01. The University shall, upon expiration or termination
of this Lease, surrender to the City the Conference Center in good
order, condition and repair, except for reasonable wear and tear and
82-219
-49-
damage, subject, however, to the provisions of Section 13. 01
of this Lease.
ARTICLE XXVII. CUMULATIVE REMEDIES, NO WAIVER, NO ORAL
CHANGE
27.01. The specific remedies to which the City or the Uni-
versity may resort under the terms of this Lease are cumulative and
are not intended to be exclusive of any other remedies or means of
redress to which they may be lawfully entitled in case of any breach
or threatened breach by either of them of any provision of this Lease.
The failure of either party to insist in any one or more cases upon
the strict performance of any of the covenants of this Lease, or to
exercise any option herein contained, shall not be construed as a
waiver or relinquishment for the future of such covenant or option.
A receipt by the City of rent or any item of additional rent or reim-
bursable charges with knowledge of the breach of any covenant hereof
shall not be deemed a waiver of such breach, and no waiver, change,
modification or discharge by either party hereto of any provision of
this Lease shall be deemed to have been made or shall be effective.
unless expressed in writing and signed by both the City and the
University.
ARTICLE XXVIII. INVALIDITY OF PARTICULAR PROVISIONS
28.01. If any term or provision of this Lease or the applica-
tion thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable,
the remainder
of this
Lease, or the ap-
plication of such term, or
provision to
persons
or circumstances
other than those as to which it is held invalid or unenforceable,
shall not be affected thereby, and each term and provision of this
Lease shall be valid and be enforced to the fullest extent permitted
by law.
28.02. It is the intent and the understanding of the parties to
this Lease that each and every present provision of law required by
law to be inserted in this Lease shall be and is inserted herein.
Furthermore, it is hereby expressly stipulated that every such provi-
sion is to be deemed to be inserted herein, and if, through mistake
or otherwise any provision is not inserted or is not inserted in
correct form, then this Lease shall forthwith upon the application of
either party be amended by such insertion so as to comply strictly
with the law and without prejudice to the rights of either party here-
under.
i
82-211)
►' tit ►
l r "
- 51 -
.
ARTICLE XXIX. NOTICES
29. 01. Any notice or communication which the City may
desire, or is required, to give the University shall be in writing
and shall be deemed sufficiently given if sent by registered mail,
return receipt requested, addressed to the Executive Vice President
for Administration and Finance, University of Miami, Room 234,
Ashe Building, Coral Gables, Florida 33134, with a copy to the Execu-
tive Vice President for Academic Affairs of the University, University
of Miami, Ashe Building, Coral Gables, Florida 33124, or to such other
address as the University may from time to time designate by written
notice, and a copy of such notice shall be sent to counsel for the Uni-
versity at such address as the University may from time to time desig-
nate by written notice. The time of the giving of such notice. or
communication shall be deemed to be the time when the same is so
mailed in the City of Miami to the University.
29.02. Any notice or communication which the University may
desire, or is required to give to the City shall be in writing and shall
be deemed sufficiently given if sent by registered mail, return receipt
requested, addressed to the City for the attention of its
(with a copy of such notice to its ) at
- � • fit. f � � '
-52-
or to such other persons or to such other address as the City may
from time to time designate by written notice. The time of the
giving of such notice or communication shall be deemed to be the
time when the same is to be mailed in the City of Miami to the City.
ARTICLE XXX. GRIEVANCE PROCEDURES
30.01. In the event that any dispute shall arise between (a) the
University and any other constituent institution of the Convention Center
with respect to their respective areas of primacy, or (b) the University
and the City with respect to performances by outside organizations
in the Conference Center or elsewhere in the Convention Center, and
such dispute cannot be satisfactorily resolved through cooperative
discussions between representatives of the disputants, then the matter
at issue shall, at the request of either party, be referred for prompt
consideration to a special committee consisting of two directors of
each of the disputants, the chairman of such committee to be selected
by the members thereof. The conclusion of a majority of the members
of such special committee shall be final and conclusive. If either party
is not satisfied with the conclusion of the committee, such party may
refer the matter to arbitration as hereinafter provided in Article
XXXI.
82-979
w 53
30.02. The City represents that the other constituent insti-
tutions
t
under
lease from the
City shall be contractually obligated to
comply
with
the procedures
outlined in Section 30.01.
ARTICLE XXXI. ARBITRATION
31.01. Arbitrable Issues. Subject to provisions of Section
30. 01 if any dispute shall arise between the City and the University
with respect
to the interpretation, performance,
and
implementation
of any of the
provisions in this Lease, or as to
the
breach thereof
or the exercise of any remedies thereunder except 4he provisions of
Article XXXII hereof and the provisions of Section 1.03 hereof,
the matter shall be subject to arbitration as hereinafter provided.
31.02. Arbitration Procedure. The arbitrators shall be ap-
pointed and the arbitrations conducted in the following manner;
(a) The party desiring such arbitration shall give
notice to that effect to the other party, specifying the
name and address of the person designated to act as
arbitrator in its behalf. Such notice shall also set
forth the question or questions at issue, the specific
provisions of
the
Lease which
it
is claimed
govern the
determination
of
the issues to
be
arbitrated
and con-
tentions of the party arbitration with respect thereto.
54 -
(b) Within 10 days after the service of such notice,
the other party .shall serve its written answer on the
first party which answer shall also specify the name and
address of the person designated to act as arbitrator in
its behalf. If the second party fails to notify the first
party of the appointment of its arbitrator within the time
above specified, then the appointment of the second ar-
bitrator shall be made in the same manner as hereinafter
provided for the appointment of a third arbitrator.
(c) The arbitrators so chosen shall meet within 10
days after the second arbitrator is appointed and if, within
20 days thereafter, said two arbitrators shall not agree
upon a determination of the question in dispute, they shall
themselves appoint a third arbitrator; and in the event of
their being unable to agree upon such appointment within
10 days after the time aforesaid, the third arbitrator shall,
upon the request of either party, be selected by the then
President of the Dade County Bar Association. A hearing
by the arbitrators so chosen shall be held within 10 days
and the decision of such arbitrators shall be made within a
period of 30 days after the appointment of such third
82-219
- 55 -
arbitrator. The decision in which any two arbitrators
so appointed and acting hereunder shall concur shall in
all cases be binding and conclusive upon the parties.
31.03. Each party shall pay the fees and expenses of the
one of the original arbitrators appointed by or for such party and ':he
fees and expenses of the third arbitrator and all other expenses of
the arbitration shall be borne by the parties equally.
31.04. Notwithstanding anything to the contrary herein con-
tained, the arbitrators shall not have the right or authority to. add to,
subtract from, amend, alter or otherwise change any of the provisions
of this Lease.
ARTICLE XXXII. MODIFICATION OF THIS LEASE
32.01. The University and the City recognize that after com-
pletion of the buildings in the Convention Center, experience in the
- operation
and
use of such buildings
and
in the
implementation of the
objectives
of
the Convention Center
may
make
it desirable to revise
this
Lease in various
respects so
as to
better effectuate
the objectives
and
understandings of
the parties
herein
set forth or to
correct any
unfair financial or other burden on either party or to correct any
other inequities
which may arise in the actual
operation and performance
of this Lease.
Accordingly, it is
agreed that
at any time after the
lei
- 56 -
completion of the second full year of the term of this pease and
prior to the expiration of the seventh full year thereof any party 1
feeling aggrieved by the operation of any of the provisions of this
Lease may propose a modification thereof and the parties will attempt
to agree thereon, it being expressly understood that the present ef-
fect of this Lease shall not in any way be diminished or altered
during the period or periods when such proposed modifications are
being negotiated.
ARTICLE XXXIII. BROKERAGE COMMISSIONS
33.01. The parties mutually agree that no broker brought about
this Lease
and each party represents
and
warrants that
it dealt with
no broker
or agent in connection with
the
negotiation or
consummation
of this Lease or any arrangements with respect thereto.
ARTICLE XXXIV. COVENANTS TO BIND AND BENEFIT RESPECTIVE
PARTIES
34.01. The covenants, agreements, terms, provisions and
conditions of this Lease shall be binding upon and inure to the benefit
of the City, its successors and assigns, and the University, its suc-
ecssors and assigns, subject to the provisions of this Lease.
82-219
- 57 -
ARTICLE XXXV. VARIOUS COUNTERPARTS
35.01. This Lease may be , executed in any ntunber of cdunter-
parts, each of which shall be an original, and all collectively shall
constitute one instrument.
ARTICLE XXXVI. EFFECT OF AGREEMENT
36.01. The University and the City expressly acknowledge and
agree that as of the date of execution of the within Lease, each and
every provision of that certain Agreement dated
made between the University and the City shall have no further force
and effect whatsoever, but shall be superseded by the provisions
hereof.
IN WITNESS WHEREOF, etc.
University of Miami
P. 0. Box 248005
104 f4errick Building
Coral Gables, FL 33124
AttAe1FMWr
MIAMI CENTER ASSOCIATES, LTD.
1401 West Paces Ferry Road, N.W.
Atlanta, Georgia 30327
April 10, 1978
Re: Letter Agreement
Gentlemen: 4
As a result of our extensive conversations and negotiations, and as the
University is not a part to the Lease and Agreement for Private Development
between the City of Miami and our firm; and as references to the University
do not create any contractual rights for the University, it appears to us that
we should have a separate Letter Agreement.
Accordingly, for and in consideration of the mutual covenants herein contained,
and in response to your request of arnplification on certain operating procedures
and interface between the Developer (our firm) and the University during the
term of our agreements with the City, we agree as follows:
J.
82-219
University of Miami
April 10, 1978
Page Two
1. We will engage a nationally.recognized hotel management firm that has
an outstanding reputation for providing services of a first class hotel_
and food and beverage service; and has the ability and experience to " —wli PAT
service conventions and conferences of all types. Performance standards
of quality service will be established in their management contract.
2. We will assure you that food, beverages, and other services provided t4nk-T
University conferees will be at the quality level established by the WA
management agreement, and at the same level provided other convention
and conference attendees booked by the management firm, and at comparable' '
and fair prices.
3. Ile will cause the management. firm to reimburse the University for
conference staff administrative se.rYJces�fo_r_„engaging: and`coo`rd-N&V g k'�C
1orif rEnces and bringing participants into the hotel rooms`i 'nod iu<
less than_15-percent of the University visitor room income or the „-UT
equivalent of prevailing industry standard reimbursenents for use of
activities and services of the hotel normally paid to other agencies
when providing or arranging for similar reservations and hotel services;.
To the extent the acquisition of a gaming license by Developer adversely
affects the revenues payable to University hereunder, the amounts payable
under this Paragraph 3 shall be subject to review and renegotiation.
4. No vending machines or other dispensing devices other than food servicing
equipment necessary to accommodate for service requirements of University
function rooms will be located on levels two (2) and three (3) except
in the area specifically designated as a vending area in the current
architectural plans without the prior written consent of the University.
5. Developer's retail sub -tenants and concessions shall be only those types
normally associated with the operation of a first class hotel and
convention center.
6. We recognize the University desires t
order to provide a hotel training and
provisions of such program need to be
management firm, so long as such does
ability of the hotel, we agree to use
arrangement to be implemented to the
provided a reasonable amount of space
o work with our management firm in 4'1�
intern program. Although the MI
arranged and coordinated with the
not adversely impact the profit -<-
our best efforts to cause such
mutual satisfaction of the parties
will suffice for that purpose.
82-219
University of Miami
April 10, 1978
Page Three
7. The Developer and the University hereby agree that each has priority on
the use of its own space and facilities; however, Developer and University
shall cooperate with one another and with the City to develop a booking
procedure for hotel rooms, banquets, exhibition and meeting rooms which
will permit all parties to schedule the use of such facilities without
conflict and result in maximizing the use of such facilities consistent
with the objectives of all parties.
The University recognizes that a first class convention hotel must have
access to ballroom and exhibit space. Accordingly, the hotel manaclement
firm will have exclusive control over ex 'him space.
e hotel management 7 irm wi use its best efforts to accommodate
University's ongoing programmatic.needs, recognizing the University as
a prime tenant on the site. The Developer recognizes that the University
needs hotel rooms and meeting rooms within the Convention Center and
Hotel to effectively conduct a conference program. The University is
recognized as havinq first priority on the meetin ro m n-ned by the
City, but tfie niversity will take into acc unt the. requireme�the
hotel in using such rooms. Acknowledgments of these requirements shall
e a factor to be recognized by the parties in carrying out the intention
of this paragraph.
8. It is recognized that the space configuration, design, interior decor,
- and other elements of the Convention Center and Hotel must function and
relate with the University space. Accordingly, the University shall b_e
permitted access at all times _jZi_Qns details, and
other re vn't-lY' ffs durinq vlannina_and construction. Developer,
the University an Developer's management firm shall work together to
produce a compatible and functional product consistent with the
objectives of all parties and within the budgetary limits available to
the parties.
9. In the event disputes arise out of, or in connection with, the operation
and implementation of this Letter Agreement, such dispute shall be
submitted to the Director of the Convention Center of the "City of Miami/
University of Miami James L. Knight International Center," as outlined
in Paragraph 19, pages 13 and 14 of the Agreement dated April 1, 1977,
between tile University of Miami an a it of Miami for determination.
n the event either party disagrees witn the Directors decision,
such matter shall be presented to the Advisor Committee of the James
L. Knight International Center for decision and in the event either party
disagrees with the Committee's decision such matter then may be presented
for arbitration pursuant to the rules of the American Arbitration
Association then obtaining for final determination. The matter in dispute
82 —219
•
University of t;iami
April 10, 1978
Page Four
may be rewoved from the jurisdiction of the Director, or of the Cocmittee,
at any time by %yritten demand of either the University or the Developer,
in which event the nutter progresses to the next step in the procedure as
set forth above. All costs of arbitration, including attorney fees if any,
shall he paid by the party whose position is incorrect or pis iizay'be
apportioned by the arbitration panel. The findings pursuant to arbitration
Shall be final and n.ay be entered into the appropriate court of jurisdiction.
16. The University shall indemnify and save hanfless the Developer, its agents
and employees, in the same manner and to the extent that the Developer has
agreed to indemnify and save harmless the University in Paragraph 14.1
of the Lease and Agreernent for Private L-evelopment beD..een Developer and
the City of iliami.
11. The University shall obtain insurance as will protect University and 71tMp TAM`t'\
Developer, their agents and employees, from any and all claims for
da;:iages for personal injury or death, or for dar,age to any property
of lniversity and fevelnp�'�y:hich nay arise out of University's use and U�►'�t4LAC—
occupancy of a portion of the Convention Center. Each policy shall provide j
for the inclusion of Developer as an additional insured. fA
12. The University and Developer acknowledge that certain requests for change to
this agreement may be requested by mortgage lenders, title insurers and the
hotel management firm. If such requested changes are not agreed to by the 20
University and Developer within 180 days of the date hereof, this agreelnent ��'
shall terminate and be of no further force and effect.
This aareer.►ent shall' be binding upon and inure to the benefit of the parties
hereto, their successors and assigns, including mortgagees. in possession.
14. This letter constitutes assurance to the University that:
~ a. the University, its employees, students, and all other persons
attending functions of the University will at all times have
convenient means of ingress and egress to the area to be occupied
by the University; and
�E�L'QEui'1;
b. the area to be occupied by the University will at all times re:rain'��GO`�`
unencumbered by any mortgages, mechanic's liens, tax liens, or
other liens created or permitted by, through, or under Geveloper
or its er.,ployees, successors, assigns, etc.; and
c. we will take adequate precautions to assure that utility services
including, but not limited to air conditioning, electricity, telephone,
82-249.
' 4, u •• 1 t
University of Miami
April 10, 1978
Page Five
water, plumbing, etc. are available to the area to be occupied by
the University and will not be interrupted by reason of any act
or failure to act by us or anyone claiming by, through or under us.
We also agree to cause our lease with the City of Miami to be
revised to the extent necessary, and to cause other documents to
which we become a party, to be drafted in such a way that the
foregoing comnitments'is fully implemented.
15. Developer agrees to incorporate this Letter Agreement by specific reference
into the Agreement to be entered into between Developer and the hotel
management firm mentioned above. C.k1et,,4c._. !-�'�ct,
16. This agreement shall be construed under and governed by the laws of the
State of Florida.
MIAMI CENTER ASSOCIATES, LTD.
By: 1,1.iami Center Assoc 'ates, Inc.
n ,
General Partner
Accepted and agreed to: UNIVERSITY OF MIAMI
Executive Vice -President for
Administration and Finance
J.
82.2I9
7/14/80
LEASE AND AGREEMENT
I
FOR DEVELOPMENT
BETWEEN _
THE CITY
OF MIAMI, a Municipal. Corporation
Under
the Laws of the State of Florida
AND
a
,
MIAMI CENTER ASSOCIATES, LTD. ,
A
Florida Limited Partnership
.►;
DATED
as of September 13, 1979
7
Restated to
Supplement
•
include all changes appearing in First
dated June 6, 1980. -
W
_
`
LEASE AND AGREEMENT FOR DEVELOPMENT
BETWEEN
"
`
THE CITY OF MIAMI
AND
PIIA14I CENTER ASSOCIATES, LTD.
Section
Page
1.
DEFINITIONS
4
I+
1.1
Additional Hotel Spaces
4
1.2
Air Spaces
4
1.3
Conference Center
5
1.4
Consultant
6
1.5
Construction Period
6
1.6
Consumer Price Index
6
1.7
Convention Center
6
1.8
Debt Service
6
1.9
Demised Premises
7
1.10
Developer's First Mortgage
7
1.11
Developer's First Mortgagee
7
1.12
Developer's Improvements
7
1.13
Easements
7
1.14
Excepted Premises
8
1.15
First Opens for Business
8
1.16
Hotel
9
1.17
Hotel Tower
9
1.18
Swimming Pool
9
1.19
Lease
9
}
1.20
corking Garage
9
1.21
Participation Interest
9
1.22
Premises
10
1.23
Project
10
1.24
Public Charges
10
1.25
Revenue Bonds
10
1.26
University Agreement
10
1.27
Work
10
1.28
Person
10
2.
LEASE
TERM
11
2.1
Initial Term
11
2.2
Renewal Term
11
2.3
Lease Term _
11
3.
RENT
12
f
3.1
Base Rent
12
3.2
Additional Rent
12
3.3
Rent Days
15
'
3.4
Payment of Additional Rent
16
3.5
Right to Audit
16
3.6
Offset
17
3.7
Books of Account
17
4.
II3CREMENTAL
COSTS
18
S.
CO►JSTRUCTION
OF THE HOTEL
19
5.1
Developer's Obligation to
19
Construct the Hotel
5.2
Submission of Design Development
20
Plans
5.3
Approval of Desian Development
21
Plans by the City
82 -219
6.
7.
8.
5.4
Submission of Final Development
21
ns '�
5.5
Approval of Final Development
22
Plans
5.6
Scope of Review by City
22
5.7
Substantive -Changes in'Plans
22
5.8
Contract for Construction
23
5.9
Conditions Precedent to Commence-
23
ment of Construction
5.10
Access:to Premises
24
5.11
Permits and Licenses
24
5.12
Progress Reports
24
5.13
Payment of Contractors and Suppliers
24
5.14
Mechanics' and Materialmen's Liens
25
CONSTRUCTION OF THE CONVENTION CENTER
26
6.1
City's Obligation to Construct
26
6.2
Additional Improvements by the City
26
6.3
Time for Performance by City
27
6.4
Commencement of Construction
28
UTILITY
SERVICE
28
7.1
Hot and Chilled Water
28
7.2
Location and dQuantity of Utility
29
Service
7.3
Agreement to Purchase and Sale
29
7.4
Cost of Utility Services
30
7.5
Interruption in Utility Service
30
7.6
Utilities
31
CONVENTION CENTER FACILITIES
31
8.1
Obligations of the City
31
8.2
Pre -Opening
31
082-219
9.
10.
11.
I I A$
8.3 Use of Facilities
8.4 Maintenance of Convention Center
8.5 Intentionally Omitted
8.6 Management of Convention Center
8.7 Coordination of Maintenance and
Repairs
PARKING
9.1 Construction of Parking Garage
9.2 Use of the Parking Garage
9.3 Approval of Plans by Developer
and Time to Complete Parking
Facilities
9.4 Agreements for Parking
9.5 Maintenance of Parking Garage
HOTEL MANAGEMENT
10.1 Contract with Hotel Manager
10.2 Operation of First -Class Hotel
10.3 Commissions and Discounts
10.4 Right of Inspection
EQUITY INVESTMENT CAPITAL AND IMOIR.TGAGE
FINANCING
11.1 Sufficient Funds to Construct
Improvements
11.2 Developer to Furnish Name and
Address of Mortgagee
11.3 Developer to Notify City of Other
Encumbrances
11.4 Rights and Duties of Mortgagee
(a) Notice of the Developer's
Default
(b) The Mortgacee's Rights Prior
To Completion of hotel
32
33
34
34
35
36
36
36
36
37
37
37
38
38
38
38
38
39
39
39
39
39
82-219
I
j
(c) Right of City to Complete
40
'
(d) The Mortgagee's Rights After
41
Completion of Improvements
(e) Right of Mortgagee to Transfer
41
and Assign
(f) Copy of Notice of Breach of
41
Covenant or Default
(g) Right of a Mortgagee to Cure
42
a Breach of Covenant or
Default by the Developer
.(h) Additional Rights of a Mortgagee
42
Upon the Developer's Default
11.5
Obligations of Persons, Including a
43
Mortgagee, Acquiring the Leasehold
Estate in the Demised Premises
11.6
Assignment by Mortgagee'
44
11.7
Mortgagee's Right to a New Lease
44
C�.
11.8
Limited Liability
47
11.9
Amendments Subject to Consent
48
12.
RESTRICTIONS ON USE
48
12.1
Authorized Uses
48
12.2
Gaming
49
12.3
Limitation on Retail Sub -tenants
50
13.
PUBLIC
CHARGES
50
13.1
Covenant for Payment of Public
50
Charges
13.2
Evidence of Payment of Charges
50
13.3
Payment of Public Charges
51
13.4
Separate Taxable Interests
51
14.
IN'DE,%INIFICATION AND INSURANCE
52
14.1
(a) Indemnification by Developer
52
(b) Indemnification by City
53
4.
82-219
14.2
Insurance Coverage by Developer
54
(a) During the Construction Period
54
(b) Property Coverage After the
55
Construction Period
(c) Use of'Insurance Proceeds
56
(d) Comprehensive General Public
58
Liability Coverage During
Construction Period
(e) Comprehensive General Public
59
Liability Coverage After
Construction Period
(f) Comprehensive Automobile
60
Liability Coverage
(g) Workmen's Compensation
61
Coverage
(h) Business Interruption and
61
Other Insurance
(i) Limited Release of Liability
62
and Waiver of Subrogation
14.3
Non -Cancellation Clause
63
14.4
Certificates of Insurance
63
14.5
Right of City to Obtain Insurance
63
14.6
Non -Waiver of Developer's Obliga-
63
tion
14.7
Mutuality of Insurance Obligation
64
14.8
Reasonable Deductible
65
14.9
Insurance Carriers: Mandatory
65
Coverage
15. MAINTENANCE,
REPAIR AND REPLACEb1FNT
66
15.1
Maintenance and Repairs
66
15.2
Reserve for Replacements
66
15.3
Waste
67
15.4
Alterations of Improvements
67
•
82-211)
166
FIRE
dR OTHER CASUALTY
16.1
Developer's Duty - Any Loss or
Damage
16.2
City's Duty - Any Loss or Damage
16.3
Partial Loss or Damage Not to
Terminate Lease
17.
CONDE."4NATION
17.1
If There is a Total Taking
I
17.2
If There is a Partial Taking
17.3
• Determination of Type of Taking
17.4
Allocation of Awards
17.5
Takings of the Parking Garage
17.6
Rights of the Developer's First
Mortgagee i
18.
DEFAULT - TEPVINATION
18.1
Default by the Developer
18.2
Default by City
18.3
Obligations, Rights and Remedies
Cumulative
18.4
Non -Action on Failure to Observe
Provisions of this Lease
18.5
Non -Performance Due to Causes
_
Beyond Control of Parties
18.6
Surrender of Demised Premises
18.7
Ownership of ,Improvements
18.8
Party in Position of Surety with
Respect to Obligations
19.
QUIET
ENJOYMENT
20.
MISCELLANEOUS
20.1
Non -Discrimination
2C.2
Equal Opportunity Provisions
67
67
68
71
72
72
72
73
74
75
76
77
77
79
81
81
81
03
83
83
84
84
84
85
"82-219
S
20.3
Certification of Nonsegregated
86
Facilities
Compliance
20.4
Internal Revenue Code
87
20.5
Participation'in Civic Functions
87
at Convention Center
1
20.6
Assignment by Developer
88
20.7
Notices
88
20.8
Conformance to Law and
89
Representations
20.9
Invalid Provisions
89
20.10
Applicable Law and Construction
89
20.11
Amendments
90
20.12
Gender and Number
90
20.13
Award of Contract
90
20.14
Public Park and River Walk
90
C
20.15
Development of Patricia Hotel Site
91
20.16
Agreements With The University
91
20.17
Use of University Space
91
20.18
Estoppel Certificates
92
20.19
Clarification of Intent
92
(a) Property Subject to Mortgage
92
(b) Identification of As -Built
92
Plans
(c) Entire Lease in One Document
93
20.20
Date of Effectiveness of Lease
93
20.21
No Merger With Fee
93
4.
e$2-219
LEASE AND AGREEMENT A
FOR DEVELOPMENT
THIS LEASE AND AGREEMENT FOR DEVELOPMENT made and entered
into at Miami, Florida as of this 13th day of September, 1979, by
and between THE CITY OF MIAMI, a municipal corporation under the
laws of the State of Florida (hereinafter referred to as the
! "City"), and MIAMI CENTER ASSOCIATES, LTD., a Florida limited part-
nership and its successors and assigns (hereinafter referred to as
the "Developer");
W I T N E S S E T-H
C_
INIIEREAS, pursuant to Ordinance No. 7221, adopted by the
City Com.,miss ion on July 1, 1964, and the approval of the voters of
the City at an election held September 29, 1964, the bonds of the
City in the principal amount of Four Million Five Hundred Thousand
and no/100 Dollars ($4,500,000.00) were sold and delivered by the
City on May 6, 1969, and the proceeds of such bonds, with other
funds, have been or shall be applied to the payment of the cost of
conStructinv a convention center for the City, including parking
facilities, appurtenances, land and equipment and any necessary
clearing, filling in, extending, enlarging or improving the site
therefor; -and
k 52-219
�! tr'1;EREAS, the City to enhance the success of the convention
center entered into an agreement dated April 1, 1977 with the
University of Miami, a nonprofit corporation organized and existing
under the laws of the State of Florida (hereinafter referred to as
the "University") wherein the'University agreed to lease and operate
a conference center as a part of the convention center (said con-
ference center being herein designated the "Conference Center" and
said convention center and conference center, collectively, being
f
designated "City of Miami/University of Miami James L. Knight
International Center" and herein called the "Convention Center"); and
WHEREAS, said agreement among other things, provides that
the University shall make available Two Million Five Hundred
Thousand and no/100 Dollars ($2,500,000.00) with certain earnings
thereon to the City as advance rent for the Conference Center on the
condition that the City cause to be constructed a luxury hotel of
not less than 250 rooms and a parking garage of approximately 1,000
car capacity to be operated as part of said Convention Center; and
WHEREAS, the City on February 16, 1977, by published no-
tice, invited expressions of interest from developers in the devel-
opment and operation of commercial facilities essential for the suc-
cessful operation of the Convention Centcr and, pursuant to such
invitation, the Developer submitted its development proposal to the
City; and
-2-
82-219
78-74 adopted January 24, 1978, authorized the City Manager to exe-
cute contracts with the Developer for the development of such com-
mercial facilities; and
WHEREAS, pursuant to 'the authorization of the Commission of
the City, the appropriate officers of the City have worked with the
representatives of the Developer in the preparation of this Lease
which provides for the leasing by the City to the Developer of the
air rights over a portion of the area comprising the- Convention
Center for the construction and operation by the Developer of a
hotel and other amenities, the leasing by the City to the Developer
of certain spaces within the Convention Center for the purposes of
the Developer and the granting by the City to, the Developer of
essential easements and other rights necessary for or incidental to
Cthe construction, operation and maintenance of the hotel; and
ER FREAS, the City has by ordinance authorized the financing
of the cost of constructing the Convention Center and a parking ga-
raa (herein called the "Parking Garage") through the issuance of
its revenue bonds (hereinafter called the "Revenue Bonds");
WHEREAS, for and in consideration of the contribution and
participation of the University as aforesaid, the Developer has
entered into a separate letter agreement with the University dated
April 10, 1973; and
NO.:, THEP.EFORE, in consideration of the covenants herein
cor.taint:d and for good and valuable consideration, the receipt and
-3-
�- 1. '` 8 2- 9 1 9
t` WH EREtNS the Commission of
the City,
by Resolution No.
(� 78-74 adopted January 24, 1978, authorized the City Manager to exe-
cute contracts with the Developer for the development of such com-
mercial facilities; and
i
Iv'HERVAS, pursuant to 'the authorization of the Commission of
the City, the appropriate officers of the City have worked with the
reoresentatives of the Developer in the preparation of this Lease
j which provides for the leasing by the City to the Developer of the
air rights over a portion of the area comprising the Convention
s
Center for the construction and operation by the Developer of a
hotel and other amenities, the leasing by the City to the Developer
of certain spaces within the Convention Center for the purposes of
the Developer and the granting by the City to the Developer of
essential easements and other rights necessary for or incidental to
the construction, operation and maintenance of the hotel; and
N'HEREAS, the City has by ordinance authorized the financing
of the cost of constructing the Convention Center and a parking ga-
raae (herein called the "Parking Garage") through the issuance of
its revenue bonds (hereinafter called the "Revenue Bonds");
WHEREAS, for and in consideration of the contribution and
participation of the University as aforesaid, the Developer has
entered into a separate letter agreement with the University dated
April 10, 1973; and •
N01.%', THEREFORE, in consideration of the covenants herein
costa in.�d and for good and valuable cons iperation, the receipt and
-3-
w
82-2y9
(r mm
s3fficiency oftwhich are hereby acknowledged, the City hereby (i)
r leases to the Developer, and the Developer hereby rents from the
C City, at the rent and upon the covenants,* conditions, limitations
and agreements herein contained, for the term hereinafter specified,
the Air Spaces as defined herein, and (ii) grants to the Developer
and the Developer hereby accepts from the City upon the terms,
conditions, limitations and agreements herein contained for the term
hereof, the Easements as defined herein, and the parties mutually
covenant and acree as follows:
Section 1. DEFI:•ITIONNS. The terms defined in this Section (ex -
cent as herein otherwise expressly provided or required by the con-
text) shall for all purposes have the following.meanings:
1.1 "Additional Hotel Spaces" shall mean the Air
Spaces in the Convention Center defined in Section 1.2(c).
1.2 "Air Spaces" shall mean those air spaces bounded
as follo:,Is :
(a) Air space for the Hotel Tower.
(1)
lower
boundary
- the horizontal
plane at elevation 81'6" as
measured
from City
of Miami Datum as
shoein in Exhibit "B" attached hereto and made a part hereof;
(2) upper boundary - the horizontal
plane at the maximum elevation permitted by applicable law;
(3) perimetrical boundaries - the per-
i-,•::_ shall conform, to the metes and bounds deline-
ated in Exhibit "A" and designated "Hotel Tower" projected vertical-
ly to intoraect the upper and lower boundaries; and
-4-
82-219
(n) Air Space for the Swimming Pool.
(1) lower boundary - the horizontal
r•.
plane at elevation 6.0' as measured from City of Miami Datum; -
(2) upper boundary - the horizontal
j plane at the maximum elevation permitted by applicable law;
j _
(3) perimetrical boundaries peri-
metrical boundaries shall conform to the metes and bounds delineated
in Exhibit "A" and designated "Swimming Pool" projected vertically
to intersect the upper and lower boundaries and projected downward
to include foundations and supports; and
(c) Air Spaces for the Additional Hotel Spaces.
(1) lower boundaries - the unfinished
upper planes of the several floor slabs designated Spaces Nos. 1
through 25, inclusive, in Exhibit "B";
(2) upper boundaries - the unfinished
lower planes of the ceiling slabs above the respective lower bound-
aries;
(3) perimetrical boundaries - the per-
- ' imetrical boundaries shall conform to the metes and bounds as delin-
eated in Exhibit "B" and designated Spaces Nos. 1 through 25, inclu-
sive, projected vertically along the undecorated interior of the
boundary walla to intersect with the upper and lower boundaries.
1.3 "Conference Center" shall mean that portion of
the Convention Center which is to be leased by the City to the
Univer5it-i.
-5-
$2 - 219
1. �;'bnsultaclt" shall mean a,'* independent firm of
consulting, parkins, structural or traffic engineers, or feasibility
or manaaement consultants, or architects, of favorable national
repute for skill and experience in performing and carrying out the `
particular duties under the provisions of this Lease designated by
the City or designated pursuant to the Trust Indenture securing the
Citv's Revenue Bonds, as the case may be, in consultation with the
Developer.
1.5 "Constfuction Period" shall mean the_ time per-
iod(s) during which the Developer's Improvements are either being
i
constructed, or repaired and restored, prior to the date on which
the Hotel First Opens for Business.
1.6 "Consumer Price Index" shall mean the Consumer
Price Index; for All Urban Consumers - All.Items - for Miami, Florida
published by the United States Department of Labor, or such other
comparable index which may be in effect from time to time if said
Index is unavailable.
1.7 "Convention Center" shall mean the entire four-
story structure to be constructed by the City on the land described
in Exhibit "A" appended hereto and by reference made a part hereof
which includes the Convention Center space and Additional Hotel
Spaces, and includes the furniture, fixtures and equipment to be
provided by the City or the University in their respective spaces.
1.8 "Debt Service" shall mean, collectively, princi-
pal amortization, fixed interest, and Participation Interest as pro-
vided in Developer's First mortgage.
-6-
r g2-219
L
t
A
1.9 "Demised Premises" shall mean the Air Spaces and
the Easements.
1.10 "Developer's First Mortgage" shall mean the first
mortgage lien upon the Developer's interest in this Lease given to
secure construction financing, or given to secure permanent fina-nc-
ing, as the case may be.
1.11 "Developer's First Mortgagee" shall mean the
holder of the Developer's First Mortgage,* or its successors or
assigns, and any Person acquiring the leasehold interest of the
Developer in the Demised Premises and any successor or assign of any
such Person: (i) under any judicial sale made under such Mortgage or
as the result of any action or remedy provided therein, or (ii) by
foreclosure proceeding or action in lieu;thereof `(including without
limitation, a deed in lieu of foreclosure to a nominee of such mort-
gagee) in connection with such Mortgage.
1.12 "Developer's Improvements" shall mean the Hotel.
1.13 "Easements" shall mean
(a) the right to use in common with the City and
all others of all public sidewalks, streets, avenues, curbs and
roadways fronting on and abutting the Project;
(b) the right of ingress, egress and passageway
in, over, through and, across those portions of the Excepted Prem-
ise^ and Demised Premises and the Parking Garage which shall be
necessar_i or desirable for entrance, exit and passageway within, to
or from the Hotel and the Parking Garage and the Excepted Premises
-7-
►82 9
for the use in common of the City and the Developer, their respec-
tive successors, assigns, patrons, tenants, invitees and all other
persons havina business with any of them;
(c) the right of support and right of.. user in
respect of, and to maintain within the Excepted Premises, all essen-
tial structural support elements, all pump systems for flood water
control, all fire stand pipes, public fire exits and fire control
systems; all gas, electric, telephone and water utility lines,
pipes, and conduits; all elevator apparatus and elevator banks; all
gas, electric, and water meters and meter rooms; all heating, venti-
latina and air-conditioning systems and machinery pertaining to and
needed to support and operate the Hotel as a first-class hotel; and
(d) the mutual right ,of access for the use, in
common, of the City and the Developer and the right to inspect,
maintain, repair, renew and replace such columns, supports, founda-
tions, drains, utility lines, elevator shafts and pits and other
improvements and facilities either in the Demised or Excepted
Premises or the Parking Garage.
1.14
"Excepted Premises" shall
mean the
land described
in Exhibit "A" and
all improvements thereon,
as shown
in Exhibit "B"
(includin, the Conference Center) not expressly included in the De-
mised Premises together with all furniture, fixtures and equipment
to be provided by the City.
1.15 "First Opens for Business" shall mean that date
on whch the Developer first receives income for use of the Hotel by
the public.
82-gig
1:16 "Hotel" shall mean the Hotei Tower and Swimming
Pool to be constructed entirely by the Developer, and the Additional
Hotel Spaces which are to be completed by the Developer. The term
"Hotel" means a first-class hotel consisting of not less than 627 j
rooms and includes furniture, fixtures and equipment to be provided
by the Developer in the premises constructed or completed by the
Developer.
1.17 "Hotel,, .Tower" shall mean the structure to be
i
constructed by the Developer in the Air Space described in Section
r
1.2(a) uoon the platform to be provided by the City at elevation
81'6" as measured from the City of Miami Datum.
1.18 "Swimming Pool" shall mean the swimming pool to
1.
be constructed by the Developer in that Air Space defined in Section
1.2 (b) .
C1.19 "Lease" shall mean this Lease and Agreement for
Development between the City and the Developer dated as of the 13th
day of September, 1979 including any amendments hereafter made.
1.20 "Parking Garage" shall mean the parking facili-
ties for not fewer than 1,450 automobiles to be constructed by the
City on the land described in Exhibit "A-1" and includes furni-
ture, fixtures and equipment to be provided by the City and an en-
closed pedestrian walkway between the Convention Center and Parking
21
Garage.
1.21 "Participation Interest" shall mean that sum
wc:=c" may payable to the Devoloplar's First Mortgacyee in accor-
dance with the Developer's First %Iortgage equal to 1 and 1/2 percent
WE
6.
' 82-9,19
(,l-1/2 ) of gross . nual room sales (exclus Al of commissions and
discounts paid to travel agents, groups, the University of Miami,
and the Citv); but the Participation Interest when added to the
fixed rate of interest payable under such mortgage shall not exceed
the maximum rate of interest permitted by law.
1.22 "Premises" shall mean the Demised Premises and
the Excepted Premises.
1.23 "Project" shall mean the Convention Center, the
Parkinc Garace and connecting walkway, including machinery, equip-
ment, fixtures and furniture, improved and unimproved land, land-
scaping and appurtenances, and the Hotel.
1.24 "Public Charges" shall mean any taxes, assess-
ments, fees, water and sewer rates, or other charges imposed by pub-
lic authority which if not paid will be a -charge, claim or - lien upon
or against the Excepted Premises, the Parking Garage, the Demised
CPremises or the Potel or any part thereof or upon or against the
revenues or rent due hereunder.
1.25 "Revenue Bonds" shall mean the Revenue Bonds of
the City to be issued to finance the Convention Center and the
Parking Garage.
1.26 "University Agreement" shall mean that certain
agreement between the City and the University dated April 1, 1977.
1.27 "Work" shall' mean the reconstruction, repair or
restoration of the hotel as used in Section 14.2(c).
1.28 "Person" shall have the meaning given in Section
1.01(3) Florida Statutes, 1979.
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82-219
Section 2. LEASE TERM.
C 2.1 Initial Term. The initial term (herein called
"Initial Term") of this Lease shall commence on the date hereof and
end forty-five (45) years ater the date on which the Hotel First
Opens for Business. The parties will execute in recordable form a
memorandum evidencing the date on which the hotel First Opens for
)
Business within thirty (30) days after such date.
f
2.2 Renewal Term. This Lease may be renewed, upon
the same terms and conditions as contained herein, for an additional
forty-five (45) years after the expiration of the Initial Term here
t
of, provided the Developer is not then in default, upon written no-
tice by the Developer delivered to the City .at .least one hundred
eighty (180) days prior to expiration of the Initial Term and sub-
ject to the following conditions:
(a) In consideration of such renewal of this
Lease, the Developer (in addition to its maintenance, repair and
replacement obligation under Section 15 hereof) agrees to extensive-
ly refurbish, update, and modernize the fixtures, furnishing and
equipment of the Hotel within one (1) year after the commencement of
such renc-aal term or show evidence that the Developer has done same
before the commencement of such renewal term.
(b) The rent during the Renewal Term shall be as
agreed upon by the parties.
2.3 LP:i:'o- Term. The initial Term and Renewal Term
are herein collectively referred to as the "Lease Term".
-11-
r
►82-219
Section 3. RE►NT.
CRent for and during the Initial Term shall consist of
Base Rent and Additional Rent payable as herein provided.
3.1 Base Rent. Base Rent shall be Two Million Nine
Hundred Thousand and no/100 Dollars ($2,900,000.00) being equal to
the aver- age present value of all of the rights of the Developer
under this Lease (exclusive of the Renewal Term set out in Section
2.2) which has been determined by appraisal of two independent,
fully qualified appraisers as of April 20, 1978. The Developer
shall pay to the City Base Rent in advance on the date the Hotel
First Opens for Business. On or before the date the City sells its
Revenue Bonds the Developer shall submit to the City evidence
satisfactory to the City showing that the payment of the Base Rent
C by the Developer to the City in the amount of Two Million Nine
Hundred Thousand and no/100 Dollars ($2,900,000.00) on the date
specified in this Lease is assured by a letter of credit then is-
sued, or adequate collateral then deposited, acceptable in form and
substance to the City and assuring that the full amount necessary
for the payment of the Base Rent in full will be available to the
Developer when the Hotel First Opens for Business.
3.2 Additional Rent.
(a) In addition to the Base Rent, the Developer
shall pa, to the City Additional Rent semi-annually based upon an-
nuaL Gross Sales computed as follows:
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82-219
I
r r `
Dollar Volume of a Percentage of
Gross Sales (Annual) Gross Sales
$ 0-$20,000,000 0%
200000,001-22,000,000 1.6% ,
22,000,001-24,000,000 1.9%
24,0001001-26,000,000 2.2%
26,000,001-28,000,000 2.5%
28,000,001-301000,000 2.7%
30,000,001-32,000,000 3.0%
32,000,001-34,000,000 3.2%
34,000,001-36,000,000 3.3%
36,000,001-38,000,000 3.4%
38,000,001-40,000,000 3.5%
3 40,000,001-41)666,667 3.6%
9
If Gross Sales exceed Forty -One Million Six Hundred
Sixty -Six Thousand Six Hundred Sixty -Seven and no/100 Dollars
($41,666,667.00) the Developer shall pay to the City Additional Rent
in the amount of One Million Five Hundred Thousand and no/100 Dol-
lars ($1,500,000.00) subject to upward adjustment for equivalent -in-
creases in the Consumer Price Index, using the Index for the first
year in which Gross Sales exceed Forty -One Million Six Hundred
Sixty -Six Thousand Six Hundred Sixty -Seven and no/100 Dollars
($41,666,667.00) as a base year.
"Gross Sales" shall mean an ,,ai basis, the
sum of
(1) gross room rentals, charges or other
revenue therefrom; and
(2) gross food and beverages sales or ser-
vices in the hotel or the Convention Center.
E.:cluded from Gross Sales shall be commissions paid on room rentals
at a rate normally paid in the operation of a first-class hotel.
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82-219
u
r `
Dollar Volume of
Gross Sales (Annual)
$ 0-$20,000,000
20,000,001-22,000,000
22,000,001-24,000,000
24,000,001-26,000,000
26,000,001-28,000,000
28,000,001-30,000#000
30,000,001-32,000,000
32,000,001-34,000,000
34,000,001-36,000,000
36,000,001-38,000#000
381000,001-40,000,000
40,0001001-411666,667
a Percentage of
Gross Sales
0%
1.6%
1.9%
2.2%
2.5%
2.7%
3.0%
3.2%
3.3%
3.4%
3.5%
3.6%
If Gross Sales exceed Forty -One Million Six Hundred
Sixty -Six Thousand Six Hundred Sixty -Seven and no/100 Dollars
($41,666,667.00) the Developer shall pay to the City Additional Rent
in the amount of One Million Five Hundred Thousand and no/100 Dol-
lars ($1,500,000.00) subject to upward adjustment for equivalent -in-
creases in the Consumer Price Index, using the Index for the first
year in which Gross Sales exceed Forty -One Million Six Hundred
Sixty -Six Thousand Six Hundred Sixty -Seven and no/100 Dollars
($41,666,667.00) as a base year.
"Gross Sales" shall mean, on an annual basis, the
sum of
(1) gross room rentals, charges or other
revenue therefrom; and
(2) gross food and beverages sales or ser-
vices in the hotel or the Convention Center.
Excludnad from Gross Sales shall be commissions paid on room rentals
at a rate normally paid in the operation of a first-class hotel.
-13-
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82-219
(b) Each semi-annual payment of Additional Rent
shall be computed on estimates of annual Gross Sales as determined
by Developer (with the final sum determined in accordance with Sec-
tion 3.4) . .
(c) Payment of Additional Rent shall be deferred
to the extent that funds available to the Developer from the reve-
nues of the Hotel are insufficient to pay such Additional Rent after
the payment of (i) Debt •Service, (ii) all operating expenses and
cash reserves required of the Developer under this Lease and Hotel
management agreement, and (iii) priority return to equity capital
investors, provided, that the sum of (i) and (iii) shall not exceed
in the aggregate Five Thousand Three Hundred and no/100 Dollars
($5,300.00) per room per annum. That portion of the deferred Addi-
tional Rent shall accrue with interest equal to 1/2% above the rate
Cpaid by the City on its Revenue Bonds. The aggregate amount of such
accruals of unpaid Additional Rent shall be due and payable by the
Developer to the City at the end of each third (3rd) year and at the
end of the forty-fifth (45th) year after the Hotel First Opens for
Business. If there are any funds available to the Developer after
payment of items (i), (ii), and (iii) above, for any calendar year
and there exists unpaid accrued Additional Rent for any prior year
or years, such funds available_ shall be applied to the payment of
said unpaid accrued Additional Rent.
(d)
Should
the
Developer's
First
Mortgagee
suc-
cQed to the position
of the
Developer
under
this
Lease, than
the
-14-
82-219
El
payment of Additional Rent shall be deferred to the extent that
funds available to the Mortgagee from the revenues of the Hotel are
insufficient to pay Additional Rent after payment or retention of
(i) the Debt Service which would have been due on the Developer's
First `:ortgage, (ii) all operating expenses and cash reserves
recuirec under this Lease and the Hotel management agreement; and
(iii) any other amounts -secured by the Developer's First Mortgage
includinc, but not limited to, arrearages in Debt Service and sums
advanced by said Mortgagee in payment of obligations of the Develop-
er under said Mortcaae or this Lease. At the end of each year if
there are funds available to such Mortgagee as determined in the
manner described above, and there exists unpaid Additional Kent
which accrued after the Developer's First Mortgagee came into pos-
session of the Demised Premises, such funds available shall be ap-
plied first to the payment of such accrued Additional Rent until
paid in full, then to the payment of Additional Rent currently due.
The provisions of this subsection are separate and in addition to
those of subsection 11.4(h)(3).
3.3 Rent Days. Additional Rent shall be payable in ar-
rears on each date which is thirty (30) days prior to each
semi-annual interest payment date of the City's Revenue Bonds, which
Rent shall be applied to the semi-annual period immediately pre-
ceding pa:•^.ent (subject to proration for the initial and final rent
period--). The dates thus fixed shall continue as Rent Days after
retire:nen't of the City's Revenue Bonds issued in connection with the
Project.
-15-
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82-219
i
1
' 3.4# Pa '.lent of Additional Rent, Within ninety (90)
days after the close of each calendar year, the Developer shall sub-
mit to the City a detailed statement for the preceding calendar year
showinc: (i) Gross Sales, (ii) Debt Service, (iii) Operating ex-
penses and cash reserves required under this Lease and the Hotel
management agreement, (iv) Priority return to equity capital inves-
tors, (v) Additional Rent and payments made thereon and deferred
Additional Rent, if any, together with a certificate of the
Developer's independent certified public accountant, addressed to
the City, stating that he is familiar with the provisions of this
Lease, whether his examination has disclosed any default in any pay-
ments required to be made hereunder and attesting to the accuracy of
the report and conformity with the requirements of Section 3.7. If
the annual accounting statement of the Developer shall disclose that
c Additional Rent is payable, the additional amount shall be paid to
the City ircmediately after such disclosure, and if Additional. Rent
shall have been overpaid, the City shall credit such overpayment to
the rental payments next due thereafter until such credit is ex-
hausted.
3.5 Right to Audit. The City, or its designated repre-
sentatives, shall have the right to inspect any records and books of
account of the Developer or those claiming under the Developer re-
lating to the hotel, and any other materials relating thereto, and
to make copies thereof or extracts therefrom, and to cause such
books, records and materials to be audited by independent certified
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82-219
6ublic accountants selected by the City as often as may be reasona-
blv requested. Such inspection and audit shall be at the City's
expense unless such inspection or audit shall disclose the existence
-of a variance of more than five percent (5%) from the additional
Rent for such period computed in connection with the annual account-
ing statement furnished to the City by the Developer,' in which case -
i
i' such inspection and examination shall be at the Developer's expense,
j:
and the cost thereof shall be immediately paid to the City by the
Developer.
3.6 Offset. Rent and all other sums payable by
Developer hereunder shall be paid without notice, demand, counter-
claim, setoff, deduction or defense and without abatement, suspen-
sion, deferment, diminution or reduction except if the Developer or
Developer's First Mortgagee shall incur any cost or•pay any sum any-
where in this Lease prescribed to be obligations of the City, then
the Developer or Developer's First Mortgagee shall have a claim
against the City which claim shall bear interest thereon at the rate
at which funds are available to the Developer from commercial sour-
ces, and if not sooner paid, may be offset against accrued Addition-
al Rent then due the City, if any, and any sum in excess thereof
offset against Additional Rent next coming due on or after one (1)
year following the date on which the claim arose.
3.7 Books of Account. The Developer shall maintain all
books of account for the Hotel in accordance with the uniform system
of _ccounta .cr hotels adopted by the American Hotel Association.
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82-219
6
M
Section 4. INCI'EMENTAL COSTS.
4.1 In addition to rent, the Developer shall pay to the
City, One Million Two Hundred Thousand and no/100 Dollars
($1,200,000.00), representing the costs to the City of constructing
structural and support elements, including mechanical, electrical
and plumbing elements in the Convention Center in sufficient size
and capacity to serve the Demised Premises and the Hotel which in-
cremental costs would not be incurred by the City but for the Hotel
("Incremental Costs"). ,Said One Million Two Hundred Thousand and
no/100 Dollars ($1,200,000.00) shall be paid by the Developer to the
City in five (5) equal annual installments of Two Hundred Forty
Thousand and no/100 Dollars ($240,000.00) each. The first
install;-:ent shall be due and payable fifteen .(15) months following
the date on which the Hotel First Opens for Business and annually
thereafter until paid in full. Installments made timely shall be
without interest.
4.2 The provisions of Section 4.1 shall not apply to
the Developer's First Mortgagee if such Mortgagee shall succeed to
the position of the Developer. Any sums coming due under Section
4.1 after the Developer's First Mortgagee shall have come into pos-
session of the Demised Premises shall be waived as to such Mort-
gagee. The provisions of this subsection are separate and in addi-
tion to those of subsection 11.4 (h) (3) .
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�1
Section 5. CONSTRUCTION OF THE HOTEL.
5.1 Developer's Obligation to Construct the Hotel.
(a) The Developer agrees for itself, its succes-
sors and assigns, that the Developer and such successors and as- .
signs, shall promptly begin and diligently prosecute construction of
the Hotel to substantial completion.
1
(b) Subject to the terms and conditions herein
contained, the Developer''shal.l construct the Hotel fully equipped
and stocked, adequately capitalized, and ready to commence business
within the time limits provided herein. The hotel shall be con-
structed substantially in accordance with the proposal attached
hereto as Exhibit "C". The Developer recognizes that the availabil-
ity of the Hotel at the Convention Center is important to the suc-
cessful operation of the Convention Center. The Hotel shall be
It
deemed "fully equipped and stocked", and "ready to commence busi-
ness", if it conforms to the applicable standards of the American
Hotel Association. As to whether the Developer has been "adequately
capitalized", such matter shall be determined to the satisfaction of
the City prior to the time that the Developer commences construction
of the Hotel, which will include demonstrat- ing to the City that
the Developer has available adequate equity funds required over and
above the amount of its construction and permanent loan financing.
(c) The Developer must substantially complete
the Hotel on or before February 1, 1982 including installation of
furniture•, fixtures and equipment in tthe Ilotel.
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82-219
Section 5. CONSTRUCTION OF THE HOTEL.
l' 5.1 Developer's Obligation to Construct the Hotel.
(a) The Developer agrees for itself, its succes-
sors and assigns, that the Developer and such successors and as-
signs, shall promptly begin and diligently prosecute construction of
�t
?' the Hotel to substantial completion.
(b) Subject to the terms and conditions herein
contained, the Developer''shal.l construct the Hotel fully equipped
and stocked, adequately capitalized, and ready to commence business
within the time limits provided herein. The hotel shall be con-
structed substantially in accordance with the proposal attached
hereto as Exhibit "C". The Developer recognizes that the availabil-
ity of the Hotel at the Convention Center is important to the suc-
cessful operation of the Convention Center. The Hotel shall be
deemed "fully equipped and stocked", and "ready to commence busi-
ness", if it conforms to the applicable standards of the American
Hotel Association. As to whether the Developer has been "adequately
capitalized", such matter shall be determined to the satisfaction of
the City prior to the time that the Developer commences construction
of the Hotel, which will include demonstrat- ing to the City that
the Developer has available adequate equity funds required over and
abo•ie the amount of its construction and permanent loan financing.
(c) The Developer must substantially complete
the Hotel on or before February 1, 1982 including installation of
furniture-, fixtures and equipment in the lot(2!l.
v
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5.3 Submission of Design Development Plans. Developer
has submitted Design Development Plans to the City for its review
and approval as used herein. Design Development Plans include the
following:
(a) Site Plans to one -eighth (1/8) inch scale
showingin and egress, traffic
ingress g g patterns, project limits, pro-
posed utility easements and rights -of -way and principal critical
site grade elevations atpropertylines;
(b) Floor plans for each non -typical floor of
the Hotel to one -eighth (1/8) inch scale;
(c) Floor plans for each typical floor of the
Hotel to one -eighth (1/8)•inch scale;
(d) Plans for typical hotel zooms to one-half
(1/2) inch scale;
(e) Vertical sections plans for principal por-
ticns of the Hotel which interface the Convention Center showing
floor elevations and alignment at principal connections to one-
eichth (1/8) inch scale;
(f) Interface diagrams and other appropriate
plans showing relationships and functions of the Hotel with other
element3 of the Convention Center;
(g) Elevation and renderings of the Hotel;
(h) Specifications covering materials, methods
and finishes;
(i) Construction cost estimate-.
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C--
1
j
5.3. Approval of Design Development Plans by the City.
The City reviewed the plans and determined them substantially in ac-
cordance with the requirements hereof. The City approved in writing
the plans submitted by the Developer.
5.4 Submission of Final Development Plans.
(a) Within forty-five (45) days after the vali-
dation of the City's Revenue Bonds, the Developer will submit to the
City final plans and specifications for the Hotel (the "Final Devel-
op-ment Plans"). The Final Development Plans shall include all of
the information set forth in the Design Development Plans.
(b) If this Lease shall terminate before con-
struction and completion of the Hotel due to the default of the
Developer, all plans, reports, estimates and models which have been
made in connection with the Hotel and which are owned by the Devel-
oper, shall become the property of the City, and the Developer shall
deliver, or cause to be delivered, to the City all such plans, re-
ports, models and estimates. Upon completion of the Hotel, the
Developer shall deliver as -built plans and specifications to the
City in such quantity as the City may reasonably request.
(c) It shall be the responsibility of the City,
the Developer and their architects to design the Hotel and the Con-
vention Center so that contiguous levels properly mesh and to coor-
dinate the construction thereof with respect to traffic and other
matIt: r_rs. The Developer and its architects and contractors and the
architects and construction manager ::.hall cooperate to p' an
-21-
82.21g
All, `
construction, ir.aterial storage areas, staging and erection and to
avoid interference among contractors.
5.5 Approval of Final Development Plans. Upon receipt
of the Final Development Plans, the City shall review the Plans fo.r
adherence to the Design Development Plans previously approved by the
City. The City shall approve the plans submitted or advise the
Developer in writing that such plans do not comply herewith within
thirty (30) days after receipt of such plans. If the Final Develop-
ment Plans submitted substantially comply with the Design Develop-
ment Plans, the City shall have an affirmative obligation to certify
its approval in writing to the Developer.
5.6 Scone of Review by City. The review of plans by
the City shall be solely for the purpose of -determining that the
improvements represented thereby in broad terms of size, design and
Cquality meet the requirements hereof. The City shall not be re-
quired to review such plans in detail, and the City shall not be re-
sponsible in any way for any error or omission therein or failure of
a
such plans to comply with any building regulation or for any incon-
sistency or incompatibility between such plans and the plans for the
Convention Center.
5.7 Substantive Changes in Plans. If the Developer
desires to make any substantive changes in the Final Development
Plans approved by the City, the Developer shall submit the proposed
changes to the City for its approval. The City shall approve the
pro^oced changes or advise the Developer in writing that such
-22-
6.
82-219
. at
changes do note comply herewith within thirty (30) days after receipt
of such proposal. If the proposed changes conform to the
requirements hereof, the City shall have an affirmative obligation
z
to certify its approval in writing to the Developer.
5.8 Contract for Construction. The Developer shall
j submit to the City a fully executed contract for construction of the
s Hotel prior to delivery of the City's Revenue Bonds. The contract
i
for construction shall .contain a provision in form and substance
satisfactory to the City which shall .declare the City a third -party
beneficiary of said contract and which shall provide for notice of
default uncer such contract to the City and the right of the City,
at its option, to cure such default without penalty to the City or
stoppace of the work.
5.9 Conditions Precedent to Commencement of Construc-
tion. As conditions precedent to the Developer's right to commence
construction, the Developer shall have:
(a) secured the approval of the City for the
Final Development Plans as herein provided;
(b) submitted evidence to the City of the avail-
ability of the equity capital and mortgage financing herein required;
(c) submitted to the City the proposed contract
for construction herein required; and
(d) submitted to the City at least thirty (30)
days Prior to commencement of construction an executed management
contract with a nationally recognizeu hotel management fir-m for the
operation and management of the Hotel.
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82-219
All of the foregoing items (i.e. (a) through (d), inclu-
sive) shall have been accomplished not later than the date on which
the City delivers its Revenue Bonds.
5.10 Access to Premises.
the construction, the City shall
Prior to the commencement of
permit representatives of the
Ii
,I
Developer to have access to any part of the Premises at all reasona-
ble times for the purpose of obtaining data and making various tests
concerning the Demised Premises necessary to carry out the terms of
this Lease.
5.11 Permits and Licenses. The City agrees, in its
capacity as fee owner of the Premises, to assist the Developer in
securing all necessary licenses, permits and governmental authoriza-
tions in connection with the purposes herein specified.
5.12 Progress Reports. Subsequent to commencement of
( the Lease Term and until construction of the Hotel shall have been
completed, the Developer shall make monthly reports, in such detail
as may reasonably be requested by City, as to the actual progress of
the Developer with respect to such construction.
5.13 Pavment of Contractors and Suppliers.
(a) The Developer shall make, or cause to be
made, prompt payment of all monies due and legally owing to all per-
sons doing any work or furnishing any materials, fuel, machinery or
supplies to the Developer or any of its contractors or subcontrac-
tors in connection with the Demised Premises and any buildings,
struc":rr�s or improvements thereon. The Developer shall require
k -24-
" 82-219
lien waivers from contractors and subcontractors in order to comply
with the mechanics' lien laws of the State of Florida or copy of
title insurance endorsement insuring over such claims.
(b) The City shall make, or cause to. -be made,
prompt payment of all monies due and legally owing to all persons
doing any work or furnishing any materials, fuel,. machinery or
supplies to the City or any of its contractors or subcontractors in
connection with the Excepted Premises and any buildings, structures
or improvements thereon. The City shall require lien waivers from
contractors and subcontractors in order to comply with the mechan-
ics' lien laws of the State of Florida or copy of title insurance
endorsement insuring over such claims.
5.14 Mechanics' and Materialmen's Liens.
(a) If, because of any act or omission of the
Developer, or any contractor or subcontractor of the Developer, any
mechanics' or materialmen's lien or other lien for labor, material,
fuel, machinery or supplies shall be filed against the Demised
Premises, or any building, structure or Improvement thereon, or
against the Excepted Premises, the Developer, shall, within thirty
(30) days of filing of such lien, cause the same to be cancelled and
discharged of record, bonded off, or insured against by title in-
surance company acceptable to City.
(b) If, because of any act or omission of the
City, or any contractor or subcontractor of the City, any mechanics'
or matcrialmen's lien or other lien for labor, material, fuel,
-?5-
' 82-219
machinery or sUpplies shall be filed av_ainst t„e Excepted Premises,
r. or anv building, structure or improvement thereon, or against the
Demised Premises, the City, will within thirty (30) days of filing
of such lien, cause the same to be cancelled and dis- charged of ,
record, bonded off or satisfied by title opinion accepta- ble to the
Developer.
i
Section 6. CONSTRUCTION OF THE CONVENTION CENTER.
6.1 City's Obligation to Construct. The City shall
construct at its sole cost and expense (except as set forth in Sec-
tion 4 and Section 8.1) and lien free, a fully -equipped Convention
Center, including support elements for the Hotel substantially in
accordance with the plans prepared by Ferendino,. Grafton, Spillis
and Candela, as identified in Exhibit "D" appended hereto, and by
reference made a part hereof. If the City desires to make any sub-
stantive changes in the Convention Center as set forth in Exhibit
"0", the City shall submit the proposed changes to the Developer for
its determination as to whether such change is in conformity with
this Lease or, if not in conformity therewith, is otherwise accepta-
ble to the Developer. If the proposed changes conform to the re-
quirements hereof, the Developer shall notify the City in writing of
itS determination.
6.2 Additional Improvements by the City. The City
shall, without expense to the Developer or public assessment against
th,! Demizi-d Premises, subj.-�ct to Suction 8.1, and without impeding
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82-219
the progress .or the construction of the hotel by the Developer,
provide for the following:
(a) Paving and improving in accordance with the
usual technical specifications and standards of the City of such
streets, including the installation of gutters, curbs, and catch
basins; street lighting, sidewalks; and such public rights -of -way as
are to be provided pursuant to the development plan for the Conven-
tion Center.
(b) Installing and relocating such sewers,
drains, water and gas distribution lines, and electric, telephone,
and telegraph installations as are to be installed or relocated
pursuant to the development plan for the Convention Center.
6.3 Time for Performance by Citv.. Time is of the es-
sence in performance by the City and the*Developer of their respec-
tive obligations to construct. The Developer's performance is de-
pendent upon performance by the City, and the City therefore
cove-nants with the Developer to do and perform certain things within the
follo:•:ing prescribed time limits:
(a) The Design Development Plans and Specifica-
tions for the improvements to be constructed by the City were com-
pleted on or before October 20, 1978, and were reviewed and approved
in writinc by the Developer, on or before November 20, 1978.
(b) The City must commence construction of the
Convention Center, and complete the same to the point that posses-
sion of so much thereof as may be necessary; in the premises can be
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82-219
tendered to th- Developer on or before June 191980, accompanied by
certifications by the City and by its architect and engineers to the
f� Developer confirming that the Convention Center is in such state of
completion that the Developer may commence construction of the
Hotel, and that the structural and support elements of the Conven-
tion Center have been completed in substantial compliance with the
plans and specifications.
(c) Thereafter, the City must substantially com-
plete the Convention Center on or before February 1, 1982,' including
the central plant for the production of hot and chilled water, the
Parking Garage, public park and river walk, and the installation of
all furniture, fixtures and equipment in the Excepted Premises and
Par%ir.g Garage.
6.4 Commencement of Construction.
The City shall noti-
fy the Developer in writing of the date the Developer may commence
construction of the Hotel, which notification shall not be later
than thirty (30) days prior to the date specified in Section
6.3(b). The Developer shall commence construction within forty-five
(45) days after issuance of the City's Revenue Bonds.
Section 7. UTILITY SERVICE.
7.1 Hot and Chilled Water. The City represents to the
Developer that the City will (subject to Section 8.1) construct as
part of the Convention Center a plant or plants to produce hot and
chilled water sufficient for the needs of the Convention Center and
-2b-
82-219
the Hotel. Ta CiL
fiy has offered and hereby agrees to furnish and
(� sell to the Developer for use -in the Hotel the amounts of hot and
chilled water as are required: by the Developer in accordance with
the terms and conditions hereinafter set forth.
7.2 Location and_Quantity of Utility Service. As soon
as possible in the design of the Hotel, the Developer shall furnish
to the Cit:r estimates of the:: quantities and specifications of hot
and chilled water required in'the Demised Premises and the location
at the boundary of the Demised Premises at which the Developer
wishes to receive the hot and.*chilled water to be provided by the
CitY. The temperatures and pressures of the same and the point of
reception and the size piping .in which the same shall be received
will be specified by the City, and shall be satisfactory to the
Developer. The Developer shall provide to the City the approximate
quantities estimated as accurately as possible of hot and chilled
water which it desires the City to provide each year, showing for
each such commodity the estimated requirements for each month of the
year.
7.3 Acareement to Purchase and Sale. The City hereby
agrees to furnish and sell to the Developer and the Developer agrees
to purchase the quantities of hot and chilled water in monthly quan-
tities in accordance with the Developer's needs of monthly usage and
at the temperatures and pressures at the point of reception deter-
mined purzuant to Section 7:2, and the Developer agrees to pay the
Cit. t:;erefor as set forth in Section 7.4.
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82-219
6
7.4 Coet of Utility Services. THe Developer shall pay
to the City on a monthly basis the cost of hot and chilled water
delivered to the Demised Premises based upon meters at the point of
reception. Such cost shall be the direct unit cost of producing the
same. Cost of producing hot and chilled water shall be determined
in accordance with the Uniform System of Accounts for Municipal
Utilities, including a reserve for depreciation equal to five per-
cent per annum of,the City's capital cost of the hot and
chilled water plant machinery and equipment. The City shall furnish
Developer an analysis of unit costs including capital costs and
depreciation within ninety (90) days after the close of each calen-
dar year in which the Hotel first opens for business. Further, to
the extent practical and feasible, the various portions of the
Demised Premises and Excepted Premises shall be separately metered
or check metered so that there can be easily determined the respec-
tive obligations of the parties for the hot and chilled water, as
well as for all other utility services wherever such provisions may
be applicable.
7.5 Interruption in Utilitv Service. The City shall
not be rezponsibile or liable in any way whatsoever for the quality,
quantity, impairment, interruption, stoppage, or other interference
with service involving electric, water, gas, sewerage, telephone or
any other service, unless such occurrence is due to the willful acts
or omit=ions of the City (except in the exercise of the police
po-.-►er) o: to its ne,jligent actc or omiadons.
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I
82-219
7A Utilities. In addition to the provisions of this
Section 7, each of the parties shall pay the cost of utility ser-
vices to its respective premises or otherwise used by the respective
Iparty, including but not limited to electric, water, gas, sewerage,
telephone, garbage and trash collection. To the extent that such
utility services are available to the City for transfer to others,
i
i the City will make such utility services available to the Developer
upon terms mutually agreeable if such services are not otherwise
available to the Developer; providing nothing herein shall affect
the City's obligation to furnish hot and chilled water pursuant to
Section 7.1
Section 8. CONVENTION CENTER FACILITIES `.
8.1 Obligations of the City. The agreements and cove-
nants of the City contained in this Lease shall be binding upon the
City and the cost of performing the City's undertakings shall be
paid from proceeds of the Revenue Bonds, revenues of the Convention
Center and Parking Garage, and from such funds of the City as may be
lawfully available therefor exclusive of ad valorem property tax
revenues not expressly approved for use hereunder in accordance with
applicable law.
8.2 Pre -Opening. It is recognized that substantial
additional pre -opening expenses will be required and the Developer
agreas to make available for pre -opening, pre -promotion and pre -
se 1 i my--?xpunzes the sum of Two Hundred ri t ty Thouzand and no,, 100
Dollarz ($250,000.00) as its share of such expense in promoting the
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82-219
n
Vo,tel and Conv-entioh Center. A mutually acceptable budget therefor
shall •be prepared by the Developer, its hotel manager, and the
CCity. The City shall be required to •fund such budget in excess of
Two Hundred Fifty Thousand and no/100 Dollars ($250,000.00) to a
maximum budget of not less than a total of Five Hundred Thousand and
no/100 Dollars ($500,000.00).
It is understood that the budget for pre -opening
expense shall be Five Hundred Thousand and no/100 Dollars
(S700,000.00) unless otherwise approved by The Commission of The
City of Miami.
8.3 Use of Facilities. -
(a) All food and beverage service in the Conven-
tion Center and Conference Center shall be under a single concession
hereby granted the Developer for the Lease Term. Developer's food,
beverage and service charges shall not exceed those of other first-
class hotels in the Miami area for comparable food, beverage and
service.
(b) The Developer, the City, and the University
shall cooperate to develop a —booking procedure for the ballroom,
banquet, exhibition and meeting rooms and other like facilities
which will permit the City, the University, and the Developer to
schedule the use of such facilities without conflict and result in
T
maximizing the use of such facilities consistent with the respective
objectives of the parties. The parties contemplate that full use of
fac'_'.itir3s will necessitate hiring by tho City or the University of
82-219
n _
the Developer^s facilities as well as hiring by the Developer or the
University of the City's facilities. The rates and charges for use
of such facilities shall be the same as those charged third parties ,
and the City, the University and the Developer shall settle' accounts
F among themselves with respect to such rates and charges on the first
day of each month following such hiring or on such other date as may
be mutually agreed.
8.4 Maintenance of Convention Center. The City at its
expense shall continuously throughout the term of this Lease operate
and maintain the Convention Center and Parking Garage in good and
clean order and condition as a first-class convention and conference
center comparable in quality to other first-class convention and
conference centers throughout the United States -and will promptly
make all necessary or appropriate repairs, replacements and renewals
thereof, whether interior or exterior, structural or non-structural,
ordinary or extraordinary, foreseen or unforeseen. All repairs,
replacements and renewals shall be equal in quality and class to the
original work. Such obligation shall include, but shall not be
limited to, bearing the cost of the Convention Center sales force
and an adequate staff to service the Convention Center and Parking
Garage, security for the Convention Center and Parking Garage and
their patrons adequate to operate the Project as a first-class
facility, and reserves for replacements, which reserves shall be
sufficient to accomplish the City's obligations under this Section..
11 the City failz properly to operate or maintain the Convention
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G
}
tenter and Parking Garage, as aforesaid, in the determination of the
Consultant exercising reasonable judgment in applying the standards
�•� set forth in this Section, or fails to make payment therefor, then,
the Developer shall have the right either to perform such operation,
maintenance, repair or replacement or to pay for the same and to the
extent that the Developer skull perform or pay for -the same, the
Developer shall he entitled to an offset against rents due the City
as set forth in Section 3.6. An escrow reserve shall be funded in
cash by the City each year of not less than One Hundred Thousand and
no/100 Dollars ($100,000.00) per annum, under an escrow agreement
and with an escrow agent acceptable to the Developer, and the bal-
ance on hand from time to time may be invested in interest bearing
investments authorized under applicable .law, with interest earned
thereon to inure to the benefit of the City; provided that so long
as any Revenue Bonds are outstanding the establishment and
maintenance of reserves for replacement under the Trust Indenture
with the Trustee shall be acceptable to the Developer for 'the
purposes of this Section.
8.5 Intentionally Omitted.
8.6 ManacTement of Convention Center. The Excepted
Premises, (excluding the Conference Center) shall during the term be
placed under a management agreement with a professional management
fir:, having at least five (5) years of experience in management of
convention centers, or civic facilities comparable to the Convention
Center. Ire choosing said management firm, the City shall consult
-3•l-
82-219
E with the Developer Ito insure that the Convention Center, (excluding
the Conference Center) will be maintained and operated in a first-
class manner and that the operations of the Convention Center and
the Hotel will be properly coordinated although in making provisions
for use and availability of the Excepted Premises the City will be
given priority as to availability for conventions and other affairs,
and in compliance with any of: -the City's obligations to the Univer-
sity. The Conference Center shall be placed under a management
agreement with the same professional management firm with regard to
the performance of custodial and maintenance functions only subject
to the understanding that if. the quality or cost of custodial and
maintenance service is not satisfactory to the University, the
University shall have the right to provide its-own-such.services.
8.7 Coordination of Maintenance and Repairs. The City
and Developer expressly recognize that in the fulfillment of their
respective obligations to operate, maintain and repair the
Convention Center and the Hotel, certain functions and responsibili-
ties will overlap by virtue of the joint use of machinery and equip-
ment. Accordingly, it is understood that a detailed agreement of
operation, maintenance and repair responsibility shall be entered
into on or before February 1, 1982, which agreement shall provide
for the City's making the determination of disputed areas of respon-
sibility, with the Developer retaining the right to contest such de-
ter7iination and to seek reirr,bursement from the City for the cost of
per _`ormninc disputed work. The existence of a dispute between the
Citf and the Developer over operation, maintenance or repair reszon-
sibilitv :hall not relieve either party of performing the same in
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.82-219
Accordance wit-h the rdetermination made by the City until and unless
changed judicially or by further agreement of the parties.
Section 9. PAP.KING.
9.1 Construction of Parkina Garage. In connection with
construction of the Convention Center, the City represents to the
Developer that the City shall (subject to Section 8.1) construct
parking facilities for not fewer than 1,450 automobiles connected to
the Convention Center by means of an enclosed pedestrian walkway.
9.2 Use of the Parking Garage.
(a) The Developer or its Hotel manager shall
have priority to reserve each day up 'to 24.9% of all the parking
spaces in the Parking Garage, for use during such day by guests of
the Hotel, by delivering a written request therefor to the City's
garage manager on or before 6:00 a.m. of such day.
(b) The Developer shall pay for parking spaces
reserved pursuant to Section 9.2(a) at the lowest daily rates in ef-
fect for the Parking Garage from time to time whether or not used.
(c) The provisions of this Section 9.2 may be
enforced by specific performance in addition to such other remedies
as may be provided by law.
9.3 Approval of Plans by Developer and Time to Complete
Parkins Facilities. The plans and specifications for the Parkiny
Garage shall be completed at or about the same time that the con-
str,.;ction
of the Convention Center
is completed
by
the
City to
the
point that
the portions thereof are
turned over
to
the
Developer
for
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commencement of construction of the Hotel as e..tablished in Section
'..� 6.3, and the City agrees to cause such Parking Garage to be con-
structed so that the same is completed in timely concert with com-
pletion of construction of the Hotel, but not later than February 1,
1982. The plans and specifications for the Parking Garage shall be
subject to the reasonable approval of the Developer. Parking Garage
includes pedestrian passageways providing accessways to and from, or
between, the Project and.s•aid Parking Garage..
9.4 Agreements for Parking. The City shall make no
agreement with any third party with respect to the Parking Garage
which will impair the City's ability to perform its obligations
hereunder; and all agreements made by the City with any third party
with respect to the Parking Garage shall expressly be made subject
to the provisions of this Section 9.
��. 9.5 Maintenance of Parkina Garage. The City shall
operate or cause to be operated the Parking Garage in a first-class
manner and kept in first-class order and that it shall be operated
at all tines reasonably necessary to serve the Project.
Section 10. HOTEL MANAGEMEZ11T.
10.1 Contract with Hotel Manacrer. Within thirty (30)
days prior to the commencement of construction of the Hotel, the
Developer shill submit to the City an executed management contract
with a nationally recognized hotel management firm for operation and
manags:rient of the Eiotel.
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82-219
W
10.2 Operation of 'First -Class Ho,bl. The management
contract shall obligate the hotel manager to operate the Hotel as a
First-class hotel in accordance with standards as defined by the
American Hotel Association. The Developer hereby agrees that it
shall cause the Hotel to be operated as a first-class hotel and that
the management contract will make provisions for sufficient funds to
be available to operate the Hotel on a first-class basis.
10.3 Commissions and Discounts. The Developer's trade
commissions and discounts shall be only those types normally associ-
ated with the operation of a first-class hotel and shall be main-
tained at competitive price levels.
10.4 Riaht of Inspection. During the term of this
Lease, the City or its authorized agent may enter upon the Demised
Premises at reasonable times for the purpose of making inspections
of the same. During the last six (6) months of the term hereof, the
City or its authorized agents may bring onto the Demised Premises
such persons who are interested in purchasing or leasing the same as
the City may invite for the purpose of inspecting the Demised
Premises.
Section 11. EOUITY INVESTMIENT CAPITAL AND MORTGAGE FINANCING.
11.1 Sufficient Funds to Construct Improvements. It
shall be the sole responsibiliity of the Developer to secure suffi-
cient equity capital and mortgage financing, in any combination
th�•c^o:, to construct the Etotel in such a manner as to meet its
obligation under Section 5.1.
ME
82-_219
11.2 Delnlo er to Furnish Name tid Address of Mort-
caaee. The Developer shall promptly furnish the City with the name
Cand address of the holder of all mortgages on the Demised Premises.
11.3 Developer to Notify City of Other Encumbrances.
The Developer shall also notify the City promptly of any other lien
or encumbrance which has been created on or attached to the Demised
Premises whether by act of the Developer or otherwise.
11.4 Rights and Duties of Mortgagee. The City hereby
agrees to the provisions set forth below.
(a) Notice of the Developer's Default. After
completion of the Hotel, if the Developer shall commit any act or
fail to act, and such action or failure of action shall be declared
a default by any mortgagee, the mortgagee shall use its best efforts
to give written notice of such default to the City setting forth the
specific details of the default, the description of the instrument
and the particular provision thereof under which the default arises
and the City shall have thirty (30) days after receipt of such no-
tice to cure the default, if it shall elect to do so. If the City
shall elect to cure the Developer's default as herein provided, the
Developer shall reimburse the City for the cost thereof forthwith
with interest thereon at the legal rate.
(b) The Mortgagee's Rights Prior to Completion
of ttoC�l. If, prior to completion of the Hotel, the Developer's
First Mortgagee shall acquire title to the leasehold estate in the
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10
6.
82-219
Den,ised... Premises, *n in such event, the garee,
or the
Mort -
gagee's7nominee, ma;, complete the construction of
the
Hotel
in
ac-
cordance with this Lease, by a date which shall
be
agreed
to
in
writing . by the Mortgagee and the City, and which
date
shall
not
be
earlier than the date specified for completion of
the
Hotel
by
the
Developer as extended by a period equal to the sum of .(i) the number
of days as may be required by the Mortgagee to obtain, based on good
faith effort to diligently do so, (either by foreclosure or action
in lieu of foreclosure) title to the leasehold estate in the Demised
Premises and possession of the Demised Premises, and (ii) the number
of days thereafter until the Mortgagee notifies the City of its
election to complete the construction as set forth in the next sen-
tence. If the Mortgagee so elects to complete the Hotel, it shall
so notify the City in writing of its intbntion to do so within two
hundred seventy (270) days from the date it shall have acquired both
possession of the Demised Premises and title to the leasehold estate
in the Demised Premises, and shall by instrument in writing, agree
for itself and its successors and assigns and expressly for the
benefit of the City, subject to Section 11.4(h)(3), to assume all of
the obligations of the Developer and to be bound by all of the pro-
visions of this Lease.
(c) Right of City to Complete. If any default
described in Section 11.4(a) shall occur at any time prior to
completion of the Eiotel and Developer's First Mortgagee fails to
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Q2 - 219
make the election set out in Section 11.4(b) within the time pro-
vided, the City may take such action as it deems proper including,
but not limited to, terminating this Lease.
(d) The Mortaaeee's Rights After Completion of
Improvements. If, after the completion of the Hotel, the Develop-
er's First Mortgagee shall acquire title to the leasehold estate in
the Demised Premises, then, in such event, the Developer's First
Mortgagee shall be bound by the provisions of this Lease.
M ..
(e) Right of Mortgagee to Transfer and Assign.
The Developer's First Mortgagee may sell, convey, assign or other-
wise transfer or dispose of any or all of its right, title and in-
terest in and to its Mortgage, including any and all claims arising
thereunder or arising out of the mortgage.
(f) Cope of Notice of"Breach of Covenant or De-
fault. Whenever the City, pursuant to this Lease, shall deliver any
notice or demand to the Developer with respect to any breach of
covenant or default by the Developer in the obligations of the De-
veloper under this Lease, the City shall, at the same time, furnish
a cony of such written notice or demand to any mortgagee at the last
address of such mortgagee as shown in the records of the City. If
the City shall receive any notice of the Developer's intention to
terminate this Lease, the City shall furnish a copy of such written
notice to any mortgagee at the last address of such mortgagee as
shown on the records of the City and provided that no such notice of
termination shall be ef.ectl•rc unless given with the prior written
consent of Developer's First Mortoa(�ee.
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(g) Right of a Mortgagee to Cure a Breach of
Covenant or Default by the Developer. Any mortgagee shall have the
Cright, at its option, to cure or remedy any breach of covenant or
default by the Developer under this Lease. Any such mortgagee may
add the reasonable cost (together with interest thereon at the de-
fault interest rate provided in the note secured by such mortgage)
of curing or remedying such breach of covenant or default to the
debt secured by such mortgage and to the lien of the mortgage. Such
mortgagee shall have thirty (30) days (after expiration of the no-
tice provided in Section 18.1(f)) to indicate its intention to cure
the default and its intention to commence action with respect there-
to, and shall thereafter diligently commence and pursue such action;
subject in each case to the provisions of Section 11.4(b).
(h) Additional Rights of a Mortgagee Upon the
l Develooer'_s Default. In addition to any other rights of Developer's
First Mortgagee set forth herein, and supplementing the sane, the
City agrees to the following:
(1) In the event of the Developer's de-
fault under this Lease prior to commencement or completion of the
Hotel, if the Developer's First Mortgagee after having been giver
written notice of such default by the City, elects to proceed in
accordance with
Section
11.4(b),
the
City
shall
not terminate
this
Lease by reason
of such
default
as
long
as such
Mortgagee is
pro-
ceeding in accordance with the provision. of Section 11.4(b).
82-219
(2) In event of the Developer's default
r under this Lease after completion of the Hotel, if the holder of any
mortgage upon the leasehold estate in the Demised Premises, after ,
having been given written notice of such default by the City, elects
to foreclose its mortgage or otherwise acquire title to the
leasehold estate in the Demised Premises, and agrees if successful
to comply with the obligations of the Developer with respect to cur-
ing such default, or prior to or during such action such holder of
the mortgage is in good faith attempting to place itself in position
to cure such default, the City shall not terminate the Lease by rea-
son of such default as long as the holder of such mortgage is pursu-
ing such action with due diligence.
(3) Notwithstanding anything in this Lease
to the contrary, the Developer's First Mortgagee shall not be obli-
gated to pay any money or cure any default of the Developer by the
payment of money or otherwise with respect to (i) any indemnity un-
der Section 14.1(a), (ii) deferred Additional Rent or interest
thereon under Section 3.2(c) or (iii) any sum under Section 4.1.
11.5 Obli4ations of Persons, Including a Mortgagee,
Acauirina the Leasehold Estate in the Demised Premises. Any Person
acquiring title to the leasehold estate of the Developer in the
Demised Premises, (i) under any, judicial sale made under a mortgage
permitted by this Lease or as a result of any action or remedy pro-
vided therein, (ii) by foreclosure proceeding or action in lieu
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82-219
thereof, (including, without limitation, a dee in lieu of foreclo-
sure to a nominee of a mortgagee) in connection with any mortgage,
or (iii) as a result of any legal process or proceedings (other than
eminent domain proceedings by public authority) or (iv) by any vol-
untary sale, assignment, or transfer permitted by this Lease shall
thereby be bound by all of the provisions of this Lease, provided,
however, that the rights of any party, including a mortgagee, to ac-
quire the title to the leasehold estate of the Developer in the De-
mised Premises is subject to such mortgagee's or party's curing all
defaults of the Developer under this Lease which are susceptible of
being cured by a party other than the Developer by the payment of
money, subject to the provisions of Section 11.4(h)(3).
11.6 Assignment by Mortgagee.. Any.mortgagee or any par-
ty described in Section 11.5, or their respective successors or as-
signs, acquiring title to the leasehold estate of the Developer
shall have the right to assign such leasehold estate by instrument
in writing executed with formalities of deed, accepted by the as-
signee and recorded among the Public Records of Dade County,
Florida. No such assignment shall be effective until a certified
copy of such recorded assignment has been delivered to the City.
Thereafter the liability of the assignor shall be forever released
and discharged from the obligations of this Lease.
11.7 Mortgagee's Right to a New Lease.
(a) Notwithstanding any provisions of thin Lease
under which thr, City may declare a default and terminate or cancel
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6.
0'82-219
this Lease no notice of default given by the City to the Developer
or other action 'by the City to declare a default shall be effective
to terminate this Lease, if Developer's First Mortgagee shall
promptly commence the enforcement of and diligently pursue all
rights and remedies legally available to it to correct or cure all
defaults, (other than defaults which are not within 'the power of
said Mortgagee to correct or cure, which defaults shall be deemed
waived as to said Mortgagee), or if said Mortgagee shall promptly
commence the enforcement of ,and diligently pursue all rights and
remedies legally available to it to acquire the leasehold estate
hereunder, and upon acquisition thereof, perform all of the
covenants and provisions on the part of the Developer to be per-
formed during the period of its ownership of -the leasehold estate;
subject however to the provisions of Sections 11.4(b) and 11.4(h)(3).
( (b) Right of Developer's First Mortgagee to a
New Lease. If this Lease should terminate by reason of the happen-
ing of any event of default, the City shall give notice thereof to
the Developer's First Mortgagee. Upon rec,uest of the Developer's
First Mortgagee made within sixty (60) days after the giving of no-
tice by the City to such Mortgagee any: upon payment to the City of
all monies due and payable by the Developer hereunder (subject, how-
ever, to the provisions of Section 11.4(b) and 11.4(h)(3)) and the
curing of all defaults hereunder up to the date of such termination
which are within the povier of such Mortgagee to cure and the perfor-
mance of all of the covenants and provisiono her,�und,2r up to the
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82-219
date of such termination which are within the power of said Mort-
gagee to perform (any default not within the power of said Mortgagee
to cure or perform and all of the matters described in Section
11.4(h)(3) shall be deemed waived as to such Mortgagee), the City
shall enter into and deliver a new lease of the Demised Premises
with such Mortgagee for the remainder of the term at the same Addi-
tional Rent and on the same terms, provisions, and conditions as
contained in this Lease,, including all rights of extension thereof,
and dated as of the date of termination of this Lease and deliver a
quitclaim deed to the Hotel, to such Mortgagee, free of encum-
brances, liens, claims or charges imposed thereon by the City. The
estate of the Developer's First Mortgagee, as lessee under the new
lease, shall have priority equal to the estate" of the Developer
hereunder (that is, there shall be no charge, lien or burden upon
the Demised Premises prior to or superior to the estate granted by
such new lease which was not prior to or superior to the estate of
the Developer under this Lease as of the date immediately preceding
the date this Lease went into default, except, however, any charce,
lien, or burden which should not have been permitted or should have
been discharged by the Developer under the terms of this Lease).
The quitclaim deed to the Hotel shall recite that the grantee holds
title to the Hotel only so long as the new lease shall continue in
full force and effect, that upon termination of the new lease, title
to the Hotel shall revert to the City automatically without payment,
t::at the grantee covenants not to convey the Hotel eXceOt
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82-219
simultaneously"and with an assignment of the lessee's interest in
the'new lease and except to the assignee thereof, and that such
covenants shall run with the property conveyed and bind all future
owners thereof. Nothing herein contained shall be deemed to impose,
any obligation upon the City to deliver physical possession of the
Demised Premises to Developer's First Mortgagee unless the City has
physical possession thereof. Said Mortgagee shall pay all expenses,
including reasonable attorneys' fees, incident to the execution and
delivery of such new lease and quitclaim deed, reduced by an amount
equal to the net income, if any, derived by the City from the Hotel
during the period from the date of termination of this lease to the
date of execution of such new lease, after deduction from such net
income an amount equivalent to the Additional- Rent that would have
been payable under this Lease for such period.
11.8 Limited Liabilitv. Notwithstanding that all the
covenants, agreements, conditions and undertakings herein are in
substance and form expressed in language creating personal covenants
on the part of any :mortgagee, the liability of any mortgagee, and of
any mortgagee's successors or assions, and the liabilty of any party
described in Section 11.5, or Section 11.6 or Section 11.7, and such
party's successors and assigns, shall be limited to and shall not
extend beyond the leasehold estate hereby created and the Hotel and
any mortgagee's or any such party's interest in the Demised Premises
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82-219
and the [iotelp and an mortgagee and an such art and their re-
spective successors and assigns, shall never be held personally lia-
ble on any covenant or agreement or understanding herein expressed, .
nor shall any action lie against any such mortgagee or any such par-
ty, or their respective successors or assigns to enforce or exert
any obligation or liability hereunder, except as enforceable against
the leasehold estate and the Hotel, it being the intention of the
.parties that the sole remedy of the City in enforcing liability
hereunder and all the terms, covenants and conditions contained in
this Lease shall be limited to the leasehold estate and interest in
the Demised Premises and the Hotel -of any such mortgagee or any such
par ty.
11.9 Amendments Subject to Consent. The Developer
agrees it shall not amend or terminate this Lease without the prior
written consent of any holder of any mortgage lien on the Demised
Premises. The City agrees that it shall not amend or terminate this
Lease without the prior written consent of the Trustee under the -
trust agreement securing the Revenue Bonds of the City, so long as
. any of its Revenue Bonds are outstanding.
Section 12. RESTRICTIONS ON USE.
12.1 Authorized Uses. The Developer shall use
and operate the Hotel as a first-class hotel and the Additional
Hotel Spaces for the intended purposes and square footaces as
fo 1 lo.'is :
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82-219
C.
Additional Hotel
Space Number as
Shown on Exhibit "B"
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Intended Purpose Are
Engineering/Maintenance
General Storage
Men's and Women's
Lockers and Toilets
Housekeeping
Laundry Rooms
Personnel/Security
Receiving/Personnel
Accounting
Kitchen/Employees'
Cafeteria
Hotel Offices
Trash Room
Food Service Corridor
Ballroom Storages
Liquor Storages/Cooler
Main Ballroom
Pre -Function
Retail
Front Desk
Lobby Lounge
Public Toilets
Coffee Shop
Kitchen
Oyster Bar
Restaurant
Palm Court
Total
a in Square Feet
2,461
2,773
2,473
3,048
4,510
280
2,555
1,380
8,674
3,840
384
629
2,349
651
11,248
3,700
24,354
2,169
1,968
1,080
3,049
3,321
1,517
5,747
3,770
97,925 S.F.
It is agreed that within the above total square
footage of 97,925 S.F. the various areas in square feet are esti-
mates only and may be modified if necessary.
12.2 Gaming. In the event gaming is legalized or autho-
rized within the State of Florida, Dade County and the City of
Miami, it is hereby specifically agreed that the Demised Premises
may be used for such gaming purpoies pursuant to licensing from the
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82-219
C."
appropriate governmental authorities should such licensing be ob-
tained by the Developer. In such event, the City shall be entitled '
to renegotiate the rent hereunder provided that any additional rent
to the City shall be competitive with industry standards in effect
for other similar type facilities where such gaming is permitted.
12.3 Limitation on Retail Sub -tenants. The Developer's
retail sub -tenants and concessions shall be only those types normal-
ly associated with the operation of a first-class hotel and conven-
tion center.
Section 13. PUBLIC CHARGES.
13.1 Covenant for Pavment of Public Charaes. The Devel-
oper and the City covenant and agree to pay and discharge, before
any fine, penalty, interest or cost may be added, all Public Charges
applicable to the Demised Premises and the Hotel, or the Convention
Center and Parking Garage, respectively.
13.2 Evidence of Payment of Public Charges. The Devel-
oper, upon request, shall furnish or cause to be furnished, to the
City and to any mortgagee, if the Demised Premises or the Hotel are
encumbered with a mortgage, official receipts of the appropriate
taxing authorities or other proof satisfactory to the City or the
mortgagee, evidencing the payment of any Public Charges which were
due and payable on the Demised Premises or the Hotel thirty (30)
days or more prior to the date of such request.
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13N3 Payment of Public Charges. Notwithstanding the
provisions of Section 13.1, the Developer and the City shall have
Cthe right to pay Public Charges in installments if permitted by law,.
and to contest the amount or validity, in whole or in part, of any
Public Charges by appropriate proceedings and, if the Developer or
the City, as the case may be, is prosecuting such proceedings with
reasonable diligence, the payment of Public Charges may be postponed
:to the extent permitted. by law so long as such contest shall
continue.
13.4 Separate Taxable Interests. If the Excepted
Premises and the Demised Premises shall be subject to a single ad
valorem tax assessment (it being understood that under current law,
the Developer's leasehold estate in the Demised Premises is subject
to ad valorem taxes and the City's interest in the Premises is
exempt from ad valorem taxes) whether as a result of change in law
or disposition by the City to a non tax-exempt person, the City, for
itself and its successors and assigns, covenants and agrees promptly
to divide the entire property into two (2) parcels in any manner
permitted by law so that the Excepted Premises and the Demised
Premises will each comprise separate taxable parcels for ad valorem
tax purposes. Such division shall be made in a manner that will
preserve intact the benefits and burdens of this Lease.
�-51-
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1
Section 14. INDEMNIFLCATION AND INSUPANCE.
14.1 (a) Indemnification by Developer.
shall pay, indemnify and save harmless the City,
The Developer �.
its officers,
agents,
and employees from
all suits, actions, claims,.,demanas,
damages,
losses and other
reasonable expenses and costs
of every
kind and description to which the City, its officers, agents or
employees may be subjected by reason of personal injury, or injury
,to persons or death or property damage, resulting from or growing
out of any commission, omission, negligence or fault of the Develop-
er, its officers, agents or employees, or its contractors or sub-
contractors or any lessee of the Developer or its hotel manager"in
connection with (i) any building, construction, installation or de-
velopment work, service or operation being undertaken or performed
by or for the Developer in, on or over the Demised Premises, or (ii)
any uses, occupancy, maintenance, repair and improvements, or opera-
tion of the Demised Premises; provided, however, that such indemni-
fication shall be limited to the extent that the City, its officers,
agents or employees are not protected by insurance, whether such in-
surance has been supplied by the Developer, the City, or their offi-
cers, agents or employees. The Developer shall pay all costs and
expenses which may be incurred by, and any monies due under any
judgment or decree rendered against the City (i) in enforcing com-
pliance by the Developer with provisions of this Lease, or (ii) in
defending any suit or proceeding brought against the City for viola-
tion by the Developer of any law or ordinance during the Lease `Germ,
-52-
.
82-2/�19
or (iii) in defending any action or suit for which indemnification
is required hereunder. If the City 'shall be made a party to any
C' litigation with respect to any matter growing out of this Lease to
the extent that the Developer is at fault, the Developer shall pay
all judgments, decrees and costs or expenses incurred by or imposed
on the City in connection therewith.
t
(b) Indemnification by the City. The City shall
:pay, indemnify and save harmless the Developer, its officers,
agents, and employees from all suits, actions, claims, demands,
damages, losses and other reasonable expenses and costs of every
kind and description to which the Developer, or its officers, agents
or employees may be subjected by reason of personal injury, or in-
jury to persons or death or property damage, resulting from or grow-
ing out of any commission or omission of the City and its officers,
agents or employees, or their contractors or sub -contractors as to
the City, or any Lessee of the City in connection with (i) any
building, construction, installation or development work, service or
operation being undertaken or performed by or for the City in, on or
over the Excepted Premises or the Parking Garage, or (ii) any uses,
occupancy, maintenance, repair and improvements, or operation of the
Excepted Premises or the Parking Garage, provided, however, that
such indemnification (1) shall be limited to the extent the Develop-
er, its officers, agents or employees are not protected by insur-
ance, whether such insurance has been supplied by the Developer, the
Cit;, their of £icerc, agents or emalovi72es, and (2) shall he limited
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82-219
i
C.�
,pe -er
so that the City shall be responsible only for its own actions and
those of its officers, agents, employees, contractors, sub-
contractors, and Lessees. For purposes of this provision, the
Developer shall not be deemed an officer, agent, employee, con-
tractor, sub -contractor or lessee of the City. The City shall pay
all costs and expenses which. may be incurred by, and any monies due
under any judgment or decree rendered against the Developer (i) in
enforcing compliance by the City with provisions of this Lease, or
(ii) in defending any suit or proceeding brought against the Devel-
oper for the violation by the City of any law or ordinance during
the Lease Term, or (iii) in defending any action or suit for which
indemnification is reauired hereunder. If the Developer shall be
made a party to any litigation with respect to any matter grorIing
out of this Lease to the extent that the City is at fault, the City
shall pay all judgments, decrees and costs or expenses incurred by
or imposed on the Developer in connection therewith.
14.2 Insurance Coverage of Developer.
(a) Durina the Construction Period. The Devel-
oper, at its expense, shall keep the Hotel insured during the Con-
struction Period against loss or damage as a result of fire and
those other hazards ordinarily insured against under an "All Risks
Coverage" builder's risks insurance policy on a "Completes Value
Form" issued by an insurance company authorized to do business in
the State of Florida, and approved by the City and the Developer's
Firot Mortgagee. Such insurance shall be in an amount sufficient to
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82-219
prevent the Developer from being a co-insurer and shall be main-
tained in an amount not less than one hundred percent (100%) of re-
placement cost of the Hotel. Each insurance policy shall contain a
loss payable clause in which the loss shall be paid to the Devel-
oper, and to the Developer's First Mortgagee and the City, as addi-
tional insureds, as their interests may appear.
(b) Property Coverage After the Construction
Period. The Developer, at its expense, shall keep the Hotel insured
after the Construction Period against loss or damage as a result of
fire, boiler and machinery, bursting pipes, and those other hazards
ordinarily insured against from time to time during the term of this
Lease in the City of Miami, Florida, under policies providing for
"All Risks Coverage" for physical damage or loss, to the extent that
such insurance is generally available from insurers of recognized
responsibility authorized to do business in Florida. The insurer
shall be approved by the City and the Developer's First Mortgagee.
Such insurance shall be in an amount sufficient to prevent the
Developer from being a co-insurer and shall be maintained in an
amount not less than one hundred percent (100a) of replacement cost
of the Hotel as determined by annual evaluation on the anniversary
date of the insurance or by inflation endorsement if available.
Each insurance policy shall contain a loss payable clause in which
the loss shall be paid to the Developer, and to the Developer's
First Mortgagee and the City, as additional insureds, as their in-
terests may appear.
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(c)• Use of Insurance Proceeds. ?
(i) In the event of any loss or damage to
C~� the Hotel by reason of fire or other casualty costing more than
Fifty Thousand and no/100 Dollars ($50,000.00) in the aggregate to
repair, the proceeds of all such insurance shall be paid to Develop—
er s First Mortgagee for application as hereinafter provided. The
Developer may make claim for the proceeds, adjust and compromise any
claim for a period of four (4) months after the date the loss oc-
curs, subject to the approval of the settlement by the Developer's <
First Mortgagee; after four months the Developer's First Mortgagee
shall have the sole right to adjust and compromise the claim. In
either event the Developer's First Mortgagee shall, except as other-
wise provided herein, release the proceeds to the. Developer for re-
pair or restoration as hereinafter provided.
(ii) The Developer's First Mortgagee shall
apply and make available and pay jointly to the Developer and -
Developer's contractor, sub -contractor, supplier or other designated
payee, the net proceeds of any fire or other casualty insurance paid
to said Mortgagee for any loss or damage which shall occur during
the term hereof, after deducting any costs of collection, including
attorneys' fees, for repair or restoration (the "Work") as the same
progresses, payments to be made against properly certified draw re-
quests or vouchers, certified by a competent architect in charge of
the Work who is licensed in the State of Florida and approved by the
Deve1oper's First Mortgagee, which approval shall not be
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82-219
0►
unreasonably withheld. The Mortgagee may withhold from each amount
disbursed such amounts as are allowed or required to be withheld
under the mechanics' lien law of Florida until proof has bedn
furnished to the Mortgagee that the Work has been completed and th&-t-.
no lien has attached or will attach to the Hotel. The Developer's'.
First Mortgagee shall also be satisfied that the amount of arty -
proceeds remaining in its hands will be sufficient upon completiGkt`
of the Work to pay for the same in full.
(iii) The Developer shall promptly and diligently
commence and complete the repair and restoration of the Hotel Via:
conform with the approved plans and specifications for the Hotel as
they existed immediately preceding the date of loss or damage, urfL
less otherwise agreed to by the City and Develo.per's First Mortgagee.
(iv) During the progress of the Work, tK.e'.
City and its architects and engineers, or any of them, may from time
C to time inspect the Work at all reasonable times and may examine
copies of all plans and specifications relating to the work. In thtr*
event that the City shall determine that the [cork is not being done
in accordance with the approved plans and specifications, then th4e
City may give the Developer written notice specifying in detail the
particular deficiency or omission noted, and the Developer shall
take measures to cause corrections to be made as to any such defi-
ciencies or omissions.
(v) In the event that the proceeds of the
in urance should be insufficient_ to complete the work, b,sed u^on
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w
82- 19
tr : n
th.e bids obtained or architects' estimates, then in that event the
Developer shall have the right to'deposit with the Developer's First
Mortgagee, within thirty (30) days of request therefor by Devel-
oper's First Mortgagee, sufficient additional funds as reasonably
determined by Developer's First Mortgagee to cover the costs of the
i
Work before any contracts are let or any Work commences. In the
event that the Developer fails or refuses to deposit the additional
funds with Developer's First Mortgagee, the Developer's First Mort-
gagee shall promptly notify the City whereupon the City shall have
the right within thirty (30) days of such notice to deposit with the
Developer's First Mortgagee such additional funds sufficient to
cover the costs of the Work. In the event the City fails or refuses
to deposit such additional funds with the Developer's First Mort-
gagee within such thirty (30) day period, the Developer's First
Mortgagee shall by notice to the Developer anti the City within
thirty (30) days thereafter have the right to advance such addition-
al funds. If the Developer, the City and the Developer's First
Mortgagee all fail or refuse to deposit or advance such additional
funds, this Lease shall terminate and the proceeds of insurance
shall be paid in the order of lien priority, first, to Developer's
First Mortgagee, then to the holder of any other lien indebtedness
on the Demised Premises or the Hotel, and the balance shall be paid
to the City.
t
(d) Comprehensive
General Public
Liability
r`,u..r Construction
iod
The Developer shall
secure and
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maintain or cause to be secured and maintained in full force and
C..
effect during the Construction Period such comprehensive general
public liability insurance for premises and operations, including
but not limited to, coverage for explosion, collapse and underground
("X.C.U.") hazards, independent contractors, products and completed
operations, and contractual and personal injury liability, as will
protect the Developer, the City, their respective officers, agents
:and employees, from any ,,and all claims and damages for personal in-
jury, injury to persons or death, or damage to any property of the
City or of the public, which may arise out of or in connection with
the performance of any work or operations by the Developer in, on or
over the Demised Premises during the Construction Pericd whether
said work or operations be by the Developer, or its contractors or
sub -contractors, or by anyone directly or indirectly employed by any
of them. This coverage shall include, but shall not be limited to a
combined single limit of Ten Million and no/100 Dollars
($10,000,000.00), for personal injury, injury to persons or death or
for property damage. Each policy shall name the City, and any mort-
gagee as additional insureds and each policy shall contain cross -
liability endorsements.
(e) Comprehensive General Pui.)lic Liabilitv
Coveraee After Construction Period. The Developer shall secure and
maintain, or cause to be secured and maintained, in full force and
effect after the Construction Period comprehensive general public
liu::ility insurance for premi::._s and operations, includin ., but not
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limited to coverage for "X.C.U." hazards, independent contractors,
products and completed operations and contractual and personal in-
jury liability, as will protect the Developer, the City, their offi-
cers, agents and employees, from any and all claims for damages for
personal injury or death, or for damage to any property of the City
or the public which may arise out of the Developer's use and occu-
pancy of the Demised Premises. This coverage shall include, but not
•be limited to a combine& single limit of Ten Million and no/100 Dol-
lars ($10,000,000.00) for personal injury, injury to persons or
death or for property damage. Each policy shall name the City, and
any mortgagee as additional insureds and each policy shall contain
cross -liability endorsements.
(f) Comprehensive Automobile Liabilitv
Coverage. The Developer shall secure and maintain, during and after
the Construction Period, such comprehensive automobile liability in-
surance, including non -owned and hired car coverage, as will protect
the Developer, and mortgagee and the City from any and all claims
and damages for personal injury or death or property damage to any
I<:
I< property of the City or of the public which may arise out of or in
connection with the performance of any work or operations done by or
for the Developer in connection with the development or operation of
the Hotel during and after the Construction Period whether such work
or operations be by the Developer, or its contractors or sub-
contractors, or by anyone directly or indirectly employed by any of
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them. The amount of such insurance shall be not less than a com-
bined single limit of Ten Million and no/100 Dollars
($10,000,000.00) for injury or death or for property damage.
(g) Workmen's Compensation Coverage. The Devel-
oper shall secure and maintain, in full force and effect, such work-
men's compensation insurance. as is required under the laws of the
State of Florida.
(h) Business Interruption and Other Insurance.
After completion of construction the Developer shall secure and
maintain or cause to be secured and maintained in full force and ef-
fect business interruption insurance and such other insurance
against other insurable hazards not provided for in this Lease which
are from time to time applicable to the use of the Demised Premises
in such amount as shall be recommended to the City by an indepen-
dent, experienced and qualified insurance consultant for protection
against losses and liabilities which the Developer would incur and
continue to bear to the City and the Developer's First Mortgagee
during a period when the Demised Premises or a portion thereof are
out of operation due to fire or other casualty. Not,.-jithstandina the
foregoing, the City shall not be required to insure or indemnify the
Developer for Developer's loss of income, directly or indirectly,
due to fire or other casualty interrupting the use of any portion of
the Excepted Premises; the Developer shall not be required to insure
or indemnify the City for the City's loss of income, including Addi-
tional Rent, directly or indirectly, due to rir� or other casualty
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t
them. The amount of such insurance shall be not less than a com-
bined single limit of Ten Million and no/100 Dollars
. ($10,000,000.00) for injury or death or for property damage.
(g) Workmen's Compensation Coverage. The Devel-
oper shall secure and maintain, in full force and effect, such work-
men's compensation insurance, as is required under the laws of the
State of Florida.
(h) Business Interruption and Other Insurance.
After completion of construction the Developer shall secure and
? maintain or cause to be secured and maintained in full force and ef-
fect business interruption insurance and such other insurance
against other insurable hazards not provided for in this Lease which
are from time to time applicable to the use of the Demised Premises
in such amount as shall be recommended to the City by an indepen-
dent, experienced and qualified insurance consultant for protection
against losses and liabilities which the Developer would incur and
continue to bear to the City and the Developer's First Mortgagee
during a period when the Demised Premises or a portion thereof are
out of operation due to fire or other casualty. Notwithstandina the
foregoing, the City shall not be required to insure or indemnify the
Developer for Developer's loss of income, directly or indirectly,
due to fire or other casualty interrupting the use of any portion of
the Excepted Premises; the Developer shall not be required to insure
or indemnify the City for the City's loss of income, including Addi-
tional Rent, diroctly or incuirectll, due to fire or other casualty
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82-219
interrupting the u._�_ of any portion of the'"'Jemised Premises. If
Developer's First Mortgagee shall succeed to the position of the
Developer as lessee under this Lease, such Mortgagee shall not be
required to maintain the insurance coverage described in this Sec-
tion 14.2(h); provided, that, - at the option of the City, such insur-
ance coverage as shall be necessary to protect the interest of the
City shall be continued in force, subject to the City's agreement to
pay the premium for such insurance coverage as it becomes due and
payable.
(i) Limited Release of Liability and Waiver
of Subrogation. The City and the Developer release each other, and
their respective authorized representatives, from any claims for
damage to any person or to the Premises that are caused by or result
from risks insured against under any insurance policies carried by
the City or the Developer and in force at the time of any such
C
damage. The City and the Developer shaii cause eacn insurance poii-
cy obtained by either to provide that the insurance company waives
all right of recovery by way of subrogation against any insured par-
ty in connection with any damage covered by any policy. If the re-
lease of the City or the Developer as set forth in the first sen-
tence of this subsection shall contravene any law with respect to
exculpatory agreements, the liability of the party in question shall
be deemed not released but shall be secondary to the other's in-
surers.
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14.3 No Cancellation Clause. All insurance policies or
agreements shall provide (to the extent such provision is obtaina-
ble) that they cannot be cancelled or terminated until after at
least thirty (30) days prior notice has been given to the. -City and
the Developer's First Mortgagee to the effect that such insurance
policies or agreements are to be cancelled or terminated at a par-
ticular time.
14.4 Certificates of Insurance. The Developer shall de-
liver all original policies of insurance to Developer's First Mort-
gagee if required by said Mortgagee. The Developer and the City
shall provide each other with certificates of insurance or other ac-
ceptable proof of compliance with the insurance provisions of this
Lease.
14.5 Right of City to Obtain Insurance. In the event
' the Developer at any time refuses, neglects or fails to secure and
maintain in full force and effect any or all of the insurance re-
quired pursuant to this Lease, the City or Developer's First Mort-
gagee, at the option of either, may procure or renew such insurance
and all amounts of money paid therefor shall be payable forthwith by
the Developer to the City or said Mortgagee, as the case may be,
with interest thereon from the date the same were paid at the pri^e
rate of Citibank, N.A., New York City to the date of payment.
14.6 Non -Waiver of Devr-loner's Cbliaations. No accep-
tance or approval of any insurance policy or policies by the City or
the Developer shall relieve or release or be constvuea to relieve or
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82-219
release the other party from any liability, duty or obligation as-
sumed by, or imposed upon it by the provisions of this Lease.
14.7 Mutuality of Insurance Obligation.
(a) All insurance obligations of the -beveloper
hereunder as they relate to its procurement of insurance on the
Hotel and its operation shall equally apply to the City in its pro-
curement of insurance on the Convention Center and the Parking Ga-
:rage and their operations including, without limitation, the types of
coverages, the amount of insurances, the deductible amounts and the
naming of the Developer and Developer's First Mortgagee as addition-
al insureds.
I (b) Without limiting the foregoing, the City at
t
its expense during the term of this Lease shall keep the Parking
Garage and the Convention Center insured against loss or damage as a
result of fire, boiler and machinery, bursting pipes and those other
hazards ordinarily insured against under an "All Risks Coverage" po-
licy issued by an insurer licensed in the State of Florida under po-
licies for physical damage or loss, to the extent that such in-
surance is generally available from insurers of recognized responsi-
bility authorized to do business in Florida. The insurer shall be
selected after consultation with the Developer. Such insurance
shall be in an amount sufficient to prevent the City from being a
co -injurer and shall be maintained in an amount not less than one
hundred percent (100j) of the replacement cost of the Park-ing Garage
and the Convention Center.
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(c) If the City shall refuse or fail to secure
and maintain any insurance required hereunder to be maintained by
C the City, in full force and effect, the Developer shall have the
right to procure or renew such insurance and all amounts for pre-
miums paid therefor by the Developer may be offset or repaid as pro-
vided under Section 3.6
(d) The City shall provide the University and
.Developer with certificates of insurance or other acceptable proof
of compliance with the insurance provisions of this Lease for the
Convention Center, the Parking Garage and other areas for which the
i
City has the responsibility of maintenance under this Lease.
14.8 Reasonable Deductible. All insurance required by
this Section 14 may contain a reasonable deductible provision pro-
vided the City and Developer's First Mortgagee are given advance
I'
j notice of said deductible provision and approve the same in writ-
ing. For purposes hereof, Ten Thousand and no/100 Dollars
($10,000.00) shall be deemed a reasonable deductible amount for
property coverage.
14.9 Insurance Carriers: Mandatory Coverace. Main-
tenance of insurance by the City and the Developer as required under
this Lease is obligatory, and neither the Developer nor the City
shall be permitted to, be self -insurers, except with regard to the
reasonable deductible applicable to property coverage.
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Section is. MAINTENANCE, REPAIR AND REPLACEMENT.
15.1 Maintenance and Repairs. The Developer, at its ex-
pense shall keep the Hotel in good and clean order and condition and
will promptly make all necessary or appropriate repairs, replace-
ments and renewals thereof, whether interior or exterior, structural
or non-structural, ordinary or extraordinary, foreseen or unfore-
seen. All repairs, replacements and renewals shall be equal in
.quality and class to the..original work. The Developer shall comply
with all laws, ordinances, codes and regulations applicable there-
to. The Developer shall have the right, after written notice to the
City, to contest by appropriate legal proceedings, conducted in good
faith, the validity or applicability of any such law, ordinance,
code or regulation, and to delay compliance 'therewith pending 'the
I
prosecution of such proceeding, provided no civil or criminal lia-
bility would be incurred by the City and no lien or charge would be
imposed upon or satisfied out of the Excepted Premises by reason of
such delay.
15.2 Reserve for Reolacements. The Developer shall
establish a reserve for replacements in the minimum amount of Three
Hundred Twenty -Four and no/100 Dollars ($324.00) per room per year
to provide funds for replacement or improvement of those parts of
the Developer's Improvements and the furniture, fixtures and equip-
ment ment therein which are subject to deterioration as a result of ordi-
nary use and wear and tear so that the hotel will at all times be
82-219
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kept and maintained in first-class condition and repair. Such re -
Serves shall be maintained in a separate bank account and may be ex-
pended by Developer only for the purpose set forth in this Section.
Said reserve amount of Three Hundred Twenty -Four and no/100 Dollars
($324.00) per room is subject to upward increases for equivalent in-
creases in the Consumer Price Index, using the index for the year
the Hotel First Opens for Business as the base year.
15.3 Waste. ;The Developer shall not permit, commit or
suffer waste or impairment of the Demised Premises, or the Hotel, or
any part thereof.
15.4 Alterations of Improvements. The Developer shall
have the right, from time to time, to make such alterations and im-
provements, structural or otherwise, to the Hotel, as the Developer
deems desirable; provided, however, that the Developer shall not,
( without the prior written consent of the City, demolish all or any
part of the Hotel, or change the Hotel so as to make it less compat-
ible with the operation of the Convention Center.
Section 16. FIRE OR OTHER CASUALTY.
16.1 Developer's Duty - Anv Loss or Damaae.
(a) In the event of any loss or damage to the
Hotel by reason of fire or other casualty involving more than Fifty
Thousand and no/100 Dollars ($50,000.00), the Developer shall give
immediate notice to the City and Developer's First Mortgagee.
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82-219
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(b) The Developer shall diligently commence and
complete the repair or restoration of the Hotel in accordance with
the terms of Section 14.2 of this Lease; all repair or restoration
shall be completed free and clear of all mechanics' liens, and the
Developer shall comply with Florida mechanics' lien laws.
16.2 City's Duty. - Any Loss or Damage.
(a) In the event of any loss or damage to the
Convention Center or Parking Garage by reason of fire or other
casualty involving more than Fifty Thousand and no/100 Dollars
($50,000.00), the City shall give immediate notice to the Developer
and to the Developer's First Mortgagee.
(b) (i) The City shall promptly and diligently
commence and complete the repair or restoration -of the Convention
Center or Parking Garage to conform with the approved plans and
specifications for the Convention Center or Parking Garage as they
existed immediately preceding the date of loss or damage, unless
otherwise agreed to by the Developer. All repair or restoration
shall be completed free and clear of all mechanics' liens and the
City shall comply with Florida mechanics' lien laws.
(ii) During the progress of such repair or
restoration, the Developer and its architects or engineers, or any
of them, may from time to time inspect the repair or restoration at
all reasonable times and may examine copies of all plans and specif-
ications relating to the repair or restoration. In the event that
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82-219
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the Developer shall determine that the work is not being done in ac-
cordance with the provisions of paragraph (i) above, the Developer
�.. may give the City written notice specifying in detail the particular
deficiency or omission noted, and the City shall take measures to
cause corrections to be made as to any deficiencies or omissions.
(iii) In the event that the City fails to promptly
commence and complete the repair or restoration of the Convention
Center or the Parking Garage, as aforesaid, the Developer, at its
option and upon twenty (20) days prior notice to the City, may per-
form such repair or restoration work, or any part(s) thereof, and
offset any amounts expended as provided in Section 3.6, or may sue
for specific performance.
(iv) In the event of any loss or damage to the
i Convention Center or the Parking Garage by reason of fire or other
casualty costing more than Fifty Thousand and no/100 Dollars
Y 9 Y
($50,000.00) in the aggregate to repair, the proceeds of all insur-
ance shall be paid into a segregated escrow account with an escrow
agent reasonably satisfactory to the Developer and the proceeds of
all such insurance shalt be used, applied and made available for
purposes of such repairs and restoration. In the event that the
proceeds of the insurance paid by reason of such loss or damage to
the Convention Center or the Parking Garage shall be insufficient to
pay the costs of completing the City's required repair or restora-
tion obligations, bated upon responsible bids or architect's esti-
mates obtained by the City, then, in that event, the City may de-
posit into said escrow account before any contracts are let or work:
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commences, sufficient additional funds to cover the balance of the
costs of repair or restoration. Such escrow account shall be pur-
suant to an escrow agreement which requires distribution by the
escrowee for payment of restoration or repair work pursuant to the
provisions of this Lease as such work progresses and provided the
escrowee is satisfied that the undisbursed balance of 'such ac- count
together with the remaining insurance proceeds is sufficient to
;complete such restoratiop or repair work. For the purposes here-
of, the Trustee under the Trust Indenture securing the City's Reve-
nue Bonds shall be an escrowee satisfactory to Developer.
(v) In the event that the City fails or
refuses to deposit such required additional funds into such escrow
account, the Developer, within thirty (30) days after the City's
failure or refusal to deposit, may deposit such sufficient addition-
al funds with the Developer's First Mortgagee and may use such
funds, together with all insurance proceeds, to complete the repair
or restoration of the Convention Center and Parking Garage. Such
additional funds deposited by the Developer shall not be used until
all insurance proceeds for damage to the Convention Center or the
Parking Garage have been expended to repair such damage. If both
the City and and the Developer fail or refuse to deposit such addi-
tional funds, the Developer's First Mortgagee may elect to advance
such funds within thirty (30) days after the expiration of the date
within which Developer is required to deposit such funds, which
election, i° „jade, shall he by written notic:-z to the City and the
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82-219
Developer and %such advance shall be made in installments as work
progresses but not before all insurance proceeds paid because of _
such damage to the Convention Center or the Parking Garage have been
expended to repair such damage. If the Developer elects to deposit
such additional funds, or the'Developer's First Mortgagee elects to
advance such additional funds, the Developer or the Developer's
First Mortgagee, as the case may be, shall have full right of access
to the Convention Center and the Parking Garage to the extent neces-
sary to cause completion of such repairs or restoration. If neither
the City nor the Developer nor the Developer's First Mortgagee de-
posits or advances such funds, the Developer shall be relieved of
I all obligations under this Lease (including, without limitation, the
obligation to pay Additional Rent) and in addition the Developer
shall have the right to terminate this Lease at any time thereafter
by notice to the City. The Developer may offset as provided in Sec-
tion 3.6 any amounts so deposited by the Developer or advanced by
the Developer's First Mortgagee.
16.3 Partial Loss or Damaqe Not to Terminate Lease.
Any loss or damage by fire or other casualty which does not termi-
nate this Lease as herein provided shall not operate to relieve or
discharge the Developer from the performance and fulfillment of any
of the Developer's obligations pursuant to this Lease or to relieve
or discharge the City from the performance and fulfillment of any of
the City's obligations pursuant to this Lease.
41. Amend Section 17 to read as follows:
�. -71-
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Section 17. CONDEMNATION.
17.1 If There is a Total Taking.
c.
(a) If there is (i) a total taking of the De-
mised Premises, the Hotel, and the Excepted Premises or (ii)" a total
taking of the Demised Premises and the Hotel (whether or not there
is any taking of the Excepted Premises) by virtue of the exercise of
the right of eminent domain, then the Additional Rent and any other
charges and expenses owing by the Developer shall be prorated and
paid by the Developer to the date possession is taken by the
condemning authority, and this Lease shall upon that date cease and
determine.
(b) If there is a total taking of the Excepted
Premises but not a total taking of the Demised Premises and the
Hotel, then, at Developer's option, to be exercised by notice to the
CCity within sixty (60) days after possession of the Excepted Pre-
mises is taken by the condemning authority, the Additional Rent and
any other charges and expenses owing by the Developer shall be pro-
4 rated and paid by the Developer to the date possession of the Ex-
cepted Premises is taken by the condemning authority and this Lease
shall upon that date cease and determine. If the Developer shall
not so elect, then this Lease shall continue in full force and ef-
fect and the City shall restore such portion of the Convention
Center as may be permitted by law.
17.2 If There is a Partial Takinv. If only a part of
the Excepted Premises or the Demi :ed 2rumises or the iivtal shall be
82-219
.
taken by eminent domain, the City, in the case of a partial taking
of *the Excepted Premises, and the Developer, in the •case of a
partial taking of the Demised Premises or the Hotel, shall forthwith
proceed to restore its segment of the Project.
17.3 Determination of Type of Taking.
(a) There- shall be deemed to be a total taking
of the Excepted Premises if all or substantially all thereof shall
:be permanently taken or, ..taken for a P Y period in excess of five (S)
years by the exercise of the power of.eminent domain or by an agree-
ment between the City and those authorized to exercise such power.
Substantially all of the Excepted 'Premises shall be deemed to have
i
been taken if the remaining portion of the Excepted Premises is not
sufficient in the judgment of the City and the•Developer, reasonably
exercised, to economically justify continued operation of the
Excepted Premises.
(b) There shall be deemed to be a total taking
of the Demised Premises and the Hotel if all or substantially all
i
thereof shall be permanently taken or taken for a period in excess
of five (5) years by the exercise of the power of eminent domain or
by an agreement between the Developer and those authorized to exer-
cise such power. Substantially all of the Demised Premises shall be
deemed to have been taken if the remaining portion of the Demised
Premises is not sufficient in the judgment of the Developer and the
City, reasonably exercised, to economically justify continued opera-
tion of the Hotel.
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• (e) Any taking other than a total taking shall
be deemed a partial taking.
C1
17.4 Allocation of Awards.
(a) The amount of damages resulting to 'the City
and the Developer, respectively, and to their respective interests
i
in and to the Project in connection with this Lease; by reason of
any exercise of the power of eminent domain, shall (unless the part-
:ies are able to agree tq,their respective damages) be separately de-
termined and computed by the court having jurisdiction and separate
awards and judgments with respect to such damages to the City and
the Developer, respectively, and t'o each of their respective inter-
ests, shall be made and entered. In the event that such court shall
make a single award without separately determining the respective
interest of the City and the Developer and if the City and the
Developer shall not agree in
writing as
to their
respective portions
of such award within twenty
(20) days
after the
date of the final
determination by such court of the amounts thereof, the City and the
Developer agree to submit the matter to such* court on stipulation
for purpose of a judgment determinative of their respective shares.
(b) On a partial taking of the Demised Premises
and the Hotel, all condemnation awards attributable to the Develop-
er's interest in the Demised Premises and the Hotel shall be deposi-
ted with the Developer's First Mortgagee for application, subject
and pursuant
to
the provisions
of Section
14.2(c)
of this Lease, in
which cage
the
referencr!s to
insurance
proceedz
as used therm:.
shall be deemed to refer to condemnation proceeds.
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82-219
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W On a partial taking of the Excepted Premi-
ses, all condemnation awards attributable to the Excepted Premises
shall be applied subject and pursuant to the provisions of Section
16.2 of this Lease, in which case the reference to insurance pro-
ceeds as used therein shall be deemed to refer to condemnation pro-
ceeds.
17.5 Takings -of the Parking Garage.
(a) If there is a partial taking of the Parking
Garage, the City will restore the Parking Garage to the extent
feasible and provide additional parking facilities in reasonably
close proximity to the Convention Center so that the restored
Parking Garage and said additional parking facilities will have
capacity for not fewer than 1,450 automobiles .with respect to which
the parking priority set forth in Section 9.2 shall apply first to
the restored Parking Garage and then to the additional parking
facilities.
(b) If there is a total taking of the Parking
Garage, the City will provide a new pa.rking facility in reasonably
close proximity to the Convention Center so that the new parking
facility will have capacity for not less than 1,000 automobiles with
respect to which the parking priority set forth in Section 9.2 shall
apply.
(c) If there is a partial or total taking of the
Parking Garage and a contemporaneous partial or total taking, or
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destruction, of the Demised Premises and the Hotel then the pro-
visions of Section 17.5 (a) or (b) , as the case may be, shall apply
Conly if the Hotel, under the applicable provisions of this Lease, is
to be restored.
(d) In making the foregoing provisions, the par-
ties recognize that the City has the power of eminent domain and
that the City may be required to exercise such power in order to
fulfill its obligations hereunder, but the City shall be required to
exercise such power only in accordance with the applicable law.
This provision imposes upon the City the further obligation to com-
mence and complete with diligence -such acquisition of land and the
construction of improvements as necessary and the further amendment
of this Lease to identify the additional parking facilities governed
by this Lease. The provisions of this Section 17.5 may be enforced
Cby specific performance in addition to such other remedies as may be
provided by law.
17.6 P,iahts of the Developer's First Mortaagee.
(a) Any option of the Developer to elect to con-
tinue or terminate this Lease set forth in this Section 17 shell be
exercised solely by the Developer's First Mortgagee during any time
period when the Demised Premises or the Hotel are subject to a
mortgage.
(b) All awards payable by reason of a taking of
the Demised Premises, or the Hotel, or part thereof, by eminent do-
main or settlement in lieu thereof, and all rights of the Developer
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to, negotiate tor or accept such awards shall lie in the Developer's
First Mortgagee during any time period when the Demised Premises or
the Hotel are subject to the Developer's First Mortgage.
t
Section 18. DEFAULT - TERMINATION.
18.1 Default by the Developer. There shall be an event
f of default by the Developer under this Lease if:
,
(a) The Developer shall fail to pay any install-
ment of rent or any other sum due to the City hereunder when and as
the same becomes due and payable and such failure shall continue for
more than then .ten (10) days after written notice thereof from the
i
City to the Developer; or
(b) The holder of any indebtedness secured by
lien on the Developer's interest in the Demised Premises or the
Hotel (whether or not the Developer is personally liable for such
indebtedness), shalt declare the Developer in default of the terms
of such indebtedness, or of any instruments relating thereto, beyond
any grace period provided with respect thereto, and such default
shall not have been waived; or
(c) The Developer shall fail to perform or
comply with any other material term or provision hereof and such
failure shell continue for more than thirty (30) days after the City
shall have given the Developer notice of such failure; or if the de
fault cannot be reasonably cured within thirty (30) days, the Devel-
oper shaLL fail to begin to cure such default within said thirt.
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City to the Developer; or
(b) The holder of any indebtedness secured by
lien on the Developer's interest in the Demised Premises or the
Hotel (whether or not the Developer is personally liable for such
indebtedness), shalt declare the Developer in default of the terms
of such indebtedness, or of any instruments relating thereto, beyond
any grace period provided with respect thereto, and such default
shall not have been waived; or
(c) The Developer shall fail to perform or
comply with any other material term or provision hereof and such
failure shell continue for more than thirty (30) days after the City
shall have given the Developer notice of such failure; or if the de
fault cannot be reasonably cured within thirty (30) days, the Devel-
oper shaLL fail to begin to cure such default within said thirt.
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(30) days and thereafter diligently -proceeds to remedy the matter to
the extent such matter is possible to cure; or
Cj.
(d) The Developer shall make a general assign-
ment for the benefit of creditors, or shall admit in writing its in-
ability to pay its debts as they become due or shall file a petition
in bankruptcy, or shall be adjudicated a bankrupt or' insolvent, or
shall file a petition seeking any reorganization, arrangement, com-
position, readjustment,; liquidation, dissolution or similar relief
under any present or future statute, law or regulation, or shall
file an answer admitting, or shall fail reasonably to contest, the
material allegations of a petition filed against it in any such pro-
ceeding, or shall seek or consent to or acquiesce in the appointment
of any trustee, receiver or liquidator of the Developer or any
material part of its properties; or
(e) Within ninety (90) days after the commence-
ment of any proceeding against the Developer seeking any reorganiza-
tion, arrangement, composition, readjustment, liquidation, dissolu-
tion or similar relief under any present or future statute, lace or
regulation, such proceeding shall not have been dismissed, or if,
within ninety (90) days after the appointment without the consent or
acquiescence of the Developer of any. trustee, receiver or liquidator
of the Developer or of any material part of its properties, such
appointment shell not have been vacated; or
(f) The Developer shall fail to give notice to
the Cit! of the recurinu of suff.ici,.nt funcl:_- to con, truct the Hot% L
82-219
k
on, or before the date the City delivers its Revenue Bonds to the
purchasers thereof.
In such event, but subject to Section 11 herein -
above, the City, at any time thereafter, may give a written notice
of termination to the Developer, and on the date, specified in such
notice, which shall not be •less than sixty (60) days, this Lease
shall terminate and the term hereof shall expire and all rights of
:the Developer hereunder,,sball cease, unless before such date speci-
fied (i) all arrearages of rent payable to the City under this Lease
shall have been paid and (ii) all other defaults hereunder at that
time existing shall have been remedied. In the event of the occur-
rence of (f) above, the Developer's obligations hereunder shall
cease. 1
18.2 Default by City. There' shall be an event of de-
fault by the City under this Lease if:
(a) The City shall have failed to prepare the
Premises for development in accordance with the provisions hereof;
or
(b) The City shall have failed to construct the
Convention Center or Parking Garage or shell have been delayed in
completing same on or before the time provided herein; or
(c) The City shall have failed to perform or
z
comply with any other material term or provision hereof and such
failure to perform shall continue for more than thirty (30) days
after the Dev,Aoper shalt have given the notice of such failure.
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lei ti
In any such event, the Developer at any time thereafter, (in
addition to any other remedy available to Developer as a matter of
C
law or as set forth herein) may give a written notice of termination
to the City, and on the date specified in such notice, which date
shall not be less than thirty (30) days, this Lease shall terminate
and the Developer's obligations hereunder shall cease,'unless before
such date the City shall have cured the default, provided, however,
-any such curing of a default described in (b) above shall not re-
lieve the City from any obligation to pay damages for such default.
In the event of a delay or failure by the City in completing the
facilities pursuant to (b) above, the City shall be required, as an
element of damages, to pay the additional interest expense payable
by the Developer to its mortgage lender until 'such time as the Con-
vention Center is completed. The Developer's remedies for an event
of default by the City shall also include, without limitation, the
right to perform any obligation of the City hereunder and the City
shall pay the costs of Developer of curing such default (plus in-
terest on such costs at the rate at which money may be available to
Developer from its commercial sources). In addition to payment of
interest expense incurred by the Developer attributable to any delay
caused by the City, the City shall also pay such other reasonable
costs and expenses incurred by the Developer attributable to such
delay, which may include those such as additional commitment fees to
extend any construction or permanent loan commitment, or additional
cost to obtain a new construction or permanent loan commitment, it
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by reason of duch delay the existing construction or permanent loan
Ccommitment is cancelled. Notwithstanding any provisions in this
Lease under which the Developer may declare a default and terminate
or cancel
this Lease or
the
City's
rights or interest thereunder, no
notice of
default given
by
the
Developer
to the City shall cause
this Lease to terminate without prior written consent* of the Devel-
oper's First Mortgagee.
18.3 Obligations? Rights and Remedies Cumulative. The
specified rights and remedies to which either the City or the Devel-
oper may resort under the terms of this Agreement are in addition to
any other remedies or means of redress to which the City or the
Developer may be lawfully entitled and may be pursued successively
or concurrently.
18.4 Non -Action on Failure to Observe Provisions of
{ this Lease. The failure of the City or the Developer to insist upon
strict performance of any term, covenant, condition or provision of
this Lease shall not be deemed a waiver of any right or remedy that
the City or the Developer may have, and shall not be deemed a waiver
of a subsequent default of such term, covenant, condition or provi-
sion.
�f
18.5 Non -Performance DUe to Causes Bevond Control of
Parties.
(a) In the event performance of any of their
respective covenants, agreements or obligations under this Lease by
the Cit1 or the Developer is prevenced, interrupted or delayei-'. by
causes beyond its control, including but not restricted to strike,
riot, storm, floor, acts of God or of the public enemy, acts of the
Government, acts of the other part.!, fires, epidemics, quarantine
sac
82-219
restrictions, freight embargoes and unusually severe weather, or
delays of sub -contractors due to such causes, and not caused by any
act or failure to act by the party thereby delayed in such perfor-
mance, the date or time or times for the performance of such cove-
nant, agreement or obligation shall be extended for a period of time
a
equal to the number of days the performance of such covenant, agree -
meet or obligation is so prevented, interrupted or delayed without
liability to the other for costs, damages, injuries or liabilities
sustained, suffered or incurred by the other in connection with such
i
covenants, agreements or obligations.
(b) The times for completion of construction
provided in Section 5.1(c) as to the Developer and Section 6.3(c) as
to the City shall not be extended notwithstanding. the provisions of
Section 18.5(a); provided, however, if the Developer's First Mort-
gagee shall agree to extend the time for completion of construction
by the Developer, then the time for performance by the City shall be
extended by an equal number of days. To the extent that completion
of construction by the City or the Developer, as the case may be,
extends beyond their respective completion dates the City or the
Developer, as the case may be, shall be liable to the other for
costs, damages, injuries, or liabilities, sustained, suffered or in-
curred by the other for failure to complete construction timely.
(c) In the event that the City or the Developer
intends to avail itself of the provisions of this Section, the City
and the Developer shall give writt..n notice of such, lntt�nt to the
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1
other; such notice to be given is not to exceed fifteen (15) days
from the date performance of such covenant, agreement or obligation
cr'
was so prevented, interrupted or delayed.
18.6 Surrender of Demised Premises. Upon the expiration
of the Lease Term hereunder in respect to the Demised Premises pur-
suant to Section 18 or any other provisions hereof, it shall be law-
ful for the City to re-enter and repossess the Demised Premises and
I
j
.the Hotel without process. of law, and the Developer, in such _event,
does hereby waive any demand for possession thereto, and agrees to
i surrender and deliver the Demised Premises, the Hotel and all
furniture, fixtures and equipment thereon peaceably to the City
immediately upon such expiration or termination in good order, con-
dition and repair, except for reasonable wear and tear.
i
18.7 Ownership of Improvements. The title to the Hotel
(• and to any additions or improvements thereof shall forthwith vest in
the Developer and shall become the property of the Developer; pro-
vided, however, that upon the termination of this Lease, either by
default or expiration of its term, the Hotel and any additions or
improvements thereto shall become the absolute property of the City,
clear of all encumbrances and charges, and without cost of anv kind
to the City.
18.8 Party in Position of Suretv with Resnect to
Obligation:. The Developer, for itself and its successors and as-
signs, and for all other persons who are or who shall become, wheth-
er by express or imr)12C•U a ssuiaiption or othcr':lize., liable u-on or
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It .
subject to any obligation or burden under'this Lease, hereby waives,
to the fullest extent permitted by law •and equity, any and all
claims or defenses otherwise available on the ground of its (or
their) being or having become a person in the position of a surety,
whether real, personal, or otherwise or whether by agreement or op-
eration of law, including, without limitation on the generality of
1
the foregoing, any and all claims and defenses based upon extension
of time, indulgence, or modification of terms of contract.
Section 19. QUIET ENJOYMENT.
The City covenants that the Developer, upon paying the
Rent and other charges herein provided for, and upon performing all
of the other covenants, and complying with agreements, terms and
conditions of this Lease on its part to be performed or complied
with, shall not be hindered or molested in its enjoyment of the De-
mised Premises or of its air, light and view.
Section 20. MISCELLANEOUS.
20.1 Non -Discrimination. The Developer agrees it will
not discriminate upon the basis of race, color, creed, national ori-
gin, ace or sex in the construction, sub -leasing, use, occupancy or
operation of the Demised Premises or the Hotel to be erected there-
on, and that each contract, sub -lease or agreement with respect
thereto shell specifically contain this provision.
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82-2a
20;2 Equal Opportunity Provision.
(a) In the construction and operation of the
Hotel neither the Developer nor any contractor or manager employed
9
by the Developer shall discriminate against any employee or appli-
cant for employment because of race, color, religion, age, sex or
national origin, and they shall take affirmative action to ensure
that applicants are employed, and that employees are treated during
:employment, without regapd to their race, color, religion, age, sex,
or national origin. Such action shall include, but not be limited
to, the following: employment, upgrading, demotion, or transfer;
recruitment or recruitment advertising, layoff or termination; rates
of pay or other forms of compensation, and selection for training,
including apprenticeship. The Developer -agrees to post in conspic-
uous places, available to employees and applicants for employment,
notices to be provided by the City setting forth the provisions of
this Equal Opportunity Clause, and to cause any contractor,
sub -contractor or manager to do likewise.
(b) The Developer and any contractor or manager
shall, in all solicitations or advertisements for employees placed
by them or on their behalf, state that all qualified applicants will
receive consideration or employment without regard to race, color,
religion, age,
sex or national origin. They
shall send to each
la-
bor union or
representative or workers with
which they, or any
of
them, have a
collective bargaining agreement
or other contract
or
unders=andin3,
a notice, to be provided by
the City, adL isinc
the
r
labor union o'r workers; representative of their commitments under
this Equal Opportunity Clause, and shall post copies of the notice
in conspicuous places available to employees and applicants for em-
ployment. Any contractor or sub -contractor shall comply with all
provisions of Executive Order No. 11246 of September 24, 1965, and
of the rules, regulations and relevant orders of the Secretary of
Labor and shall furnish all information and reports required by
Executive Order No. 11246 of September 24, 1965, and by the rules,
regulations, and orders of the Secretary of Labor, or pursuant
thereto, and will permit access to its books, records and accounts
by the City and the Secretary of Labor for purposes of investigation
to ascertain compliance with such rules, regulations and orders.
20.3 Certification of Nonseareaated Facilities. The De-
veloper certifies that it does not maintain or provide for its em-
ployees any segregated facilities at any of its establishments, and
that it does not permit its employees to perform their services at
any location, under its control, where segregated 'facilities are
maintained. 'The Developer certifies further that it will not main-
tain or provide for its employees any segregated facilities at any
of its establishments, and that it will not permit its employees to
perform their services at any location, under its control, where
segregated facilities are maintained. The Developer agrees that a
breach of this Certification is violation of the Equal Opportunity
Clause of this Lease. As used in this Certification, the terms "se-
arAgat(id facilities" means any waitin; rooms, work areas, rest rooms
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1d i, r
artid wash rooms, restaurants, and other eating areas, time clocks,
locker rooms and other storage or dressing areas, parking lots,
drinking fountains, recreation or entertainment areas, transnortion,
and housing facilities provided for employees which are segregated
by explicit directive or are in fact segregated on the basis of
race, color, religion, or national origin, because of habit, local
custom or otherwise. The Developer further agrees that it will ob-
tain identical certifications from proposed contractors, sub-
contractors and managers prior to the award of any contracts and
that it will retain such certifications in its files.
20.4 Internal Revenue Code Compliance. The City repre-
sents and warrants to the Developer that the Convention Center as
finally constructed shall not consist -of not less than 410,000
square feet and the Additional Hotel Spaces therein allocated to the
Developer shall not exceed 100,000 square feet, or 24.9% of the
whole, such that the City will not'be disqualified under applicable
law from issuing tax free revenue bonds. Neither the City nor the
Developer shall take any action which would cause said' bonds to be
deemed industrial development bonds or arbitrage bonds as defined in
Section 103(b) and Section 103(c), respectively, of the Internal Re-
venue Code of 1954, as amended, and the applicable regulations
thereunder.
20.5 Participation in Civic Functions at Convention
Center. The Developer agrees that it shall annually make matching
fur.ca with t ,e City or the City's deciynee, an amount not to exceed
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�`,� 8 2 - 2 19
A%
One Hundred Thb usand and no/100 Dollars ($1001000.00) for the spon-
soring of cultural, civic or other events at the Convention Center
Qwhich will result in the promotion of the City, the Convention Cen=
j ter and the Hotel.
i
20.6 Assignment by Developer. The Developer may not
j sell, convey, assign or otherwise transfer or dispose'of any or all
of its right, title and interest in and to the Demised Premises
,without prior written consent of the City, which consent, the City
shall not unreasonably withhold except, however, that the Developer
may assign all or any portion of this Lease (including any right of
approval reserved to Developer) as security to the holder of the
first mortgage on the Demised Premises without consent of the City.
20.7 Notices. All notices, -demands,- requests for ap-
provals, approvals, or other communications which may be or are re-
quired to be given by either party to the other in writing shall be
deemed given and delivered if delivered in person or if sent by reg-
istered or certified mail, postage prepaid and addressed:
TO DEVELOPER. TO CITY
Miami Center Associates, Ltd. The City of Miami
c/o Worsham Bros. Co. City Hall
1401 W. Paces Ferry Road, N.W 3500 Pan American Drive
Suite 2-E Miami, Florida 33133
Atlanta, Georgia 30327 Attention: City Manager
The addresses to which notice is to be sent may be changed from time
7
to time by a writing delivered to the other party. Until notice of
change of address is received, a party may rely upon the last ad-
dr s g i•,,_n. Notice shall be doemed given, if notice is by mail,
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0:
when delivered% to the address set forth above, whether or not the
letter is accepted or the party to whom it is addressed is in fact
then at that address.
t ,
1
r 20.8 Conformance to Law and Representations. This
Lease conforms and is subject to applicable law in force on the date
of the legal effectiveness of this Lease. Each of the parties rep-
resents to the other that it is authorized to enter into this Lease
-and to assume the obligations and liabilities imposed upon it under
this Lease and applicable law.
20.9 Invalid Provisions. If any provision of this
Agreement is held invalid, the remainder of this Agreement shall not
be affected thereby if such remainder would then continue to conform
to the requirements of applicable laws.
20.10 Applicable Law and Construction. The laws of the
State of Florida shall govern the validity, performance and enforce-
ment of this Lease. The submission of this document for examination
does not constitute an offer to lease, or a reservation of or option
for the premises and becomes effective only upon execution and de-
livery thereof by the City and the Developer. The headings of the
several sections contained herein are for convenience only and do
not define, limit or construe the contents of 'such sections. This
Lease has been negotiated by the City and the Developer and the
Lease, together with all of the terms and provisions hereof, shall
not be deemed to have been prepared by either the City or the Devel-
oper, but by both equa Lly.
IM
82-21.9
A
20.11 Amendments. The City agrees to make such amend-
ments to this Lease as may be reasonably required by Developer's
j First Mortgagee or title insurance company in order to make
i
j
Developer's interest in this Lease mortgagable and insurable.
20.12 Gender and Number. Words of any gender used in
this Lease 'shall be held to include any other gender, and words in
the singular number shall be held to include the plural (and vice -
.versa), when the sense requires.
20.13 Award of Contract. The Developer warrants that he
has not employed or retained any company or persons to solicit this
Lease and that the Developer has not paid or agreed to pay any com-
pany or persons any fee, commission, percentage, brokerage fee, or
gifts or any other considerations contingent upon or resulting from
the award or making of this Lease.
The Developer also warrants that to the best of
its knowledge and belief no commissioner, mayor or other officer or
employee of the City is interested directly or indirectly in the
profits or benefits of this Lease or the job, work, or services for
the City in connection with the contract or construction of this
Project.
The Developer is aware of the conflict of interest
clause of The City of Miami, Dade County, and the State of Florida
and agrees that it shall fully comply in all respects with the terms
of said clause.
20.14 Public Park and giver -.:alk. The Premises abuts a
public park and river walk area, and the City agrees that the pl-ans
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20:11 Amendments. The City agreegt!to make such amend-
ments to this Lease as may be reasonably rega Yred by Developer's
First Mortgagee or title insurance com an 9 p y e in order to make
Developer's interest in this Lease mortgagable :ki-Wlinsurable.
20.12 Gender and Number. Words of•ntnv gender used in
..":_this Lease 'shall be held to include any other finder*, and words in
the singular number shall be held to include•lttVP plural (and vice -
..versa), when the sense requires. -sire
20.13 Award of Contract. The Develo f warrants that he
has not employed or retained any company or persdn:= to solicit this
Lease and that the Developer has not paid or agTtied to pay any com-
pany or persons any fee, commission, percentagLcpr'brokerage fee, or
gifts or any other considerations contingent - Cip(sn=or resulting from
the award or making of this Lease. =:•i- Le
The Developer also warranDV` O&t: to the best of
its knowledge and belief no commissioner, mayor Oo€'other officer or
employee of the City is interested 0directly o�tindirectly in the
profits or benefits of this Lease or the job, wbrk, or services for
..the City in connection with the contract or Vhstruction of this
Project.
The Developer is aware of thei@6fiflict of interest
clause of The City of Miami, Dade County, and :;tiie State of Florida
and agrees that it shall fully comply in all reS�ts with the terms
of said clause.
20.14 Puhl is Par% and River t:a tc�._ � fiii''e Premises abuts a
public park and river walk area, and the Cite agrees that the plans
W
�`.r,.. 8 2- 2 1 9
A%
and specifications for such public park and river walk shall be com-
pleted as required, and said plans for the public park and river
walk shall be subject to the Developer's reasonable approval. The
i
City agrees that the public park and river walk shall be used only
for such purposes during the entire term of this Lease, and the City
i
further agrees to complete the construction thereof *in accordance
with Section 6.3 in timely concert with the Developer's completion
of construction of the Developer's Improvements and to thereafter
maintain the same in a first-class manner.
20.15 Development of Patricia Hotel Site. Should the
City develop plans for the improvement and utilization of the former
Patricia Hotel site, the Developer and its mortgagees shall have the
reasonable right of approval of the design concept to determine that
r
the same is compatible with the Hotel and does not in any manner in-
terfere with or harm the same, which right of approval will not be
arbitrarily or unreasonably exercised.
20.16 Aareements With The Universitv. This Agreement
does not override or supersede the University Agreement, or the
Agreement between the Developer and the University dated April 10,
1978. The University Agreement shall only be modified hereafter by
the City in a manner which shall not conflict with the provisions of
this Lease.
20.17 Use of University Space. On termination of the
University Agreement or upon termination of the lease contemplated
by the University Ayr�em-r-nt of the City shall cause such space to be
used For conference center purposes only.
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82-219
20:18 Estoppel Certificates. The Developer and the City
agree that at any time and from time to time, upon not less than'ten
(10) days prior notice by the other party, each party will execute;
acknowledge and deliver to the other a statement in recordable form
certifying that this Lease is unmodified and in full force and ef-
fect (or if there have been modifications that the same as so modi-
fied is in full force and effect and stating the modifications) and
the dates intended that -any such statement delivered pursuant to
this section may be relied upon by any prospective purchaser, mort-
gagee, assignee of any mortgage or assignee of the respective in-
terests under this Lease, made in'accordance with the provisions of
this Lease.
20.19 Clarification of Intent.
(a) Property Subject to Mortgage.
The fee simple title in and to the land is
vested in the City and any mortgage by the Developer will not extend
to said fee simple title but only to the leasehold interest of the
Developer in the Demised Premises and the ownership interest of the
Developer in the Hotel.
(b) Identification of As -Built Plans.
As soon as practical after completion of
construction, this Lease shall be further amended to identify the
as -built plans and specifications of the Convention Center, Hotel
and Parking Garage, and located specifically by surveys and legal
deccr ipticn-. of all imorov#_ment.s, Air Spaces and Easements.
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82-219
r
l r` (c) Entire Lease In One Document.
!• At any appropriate time, upon request o
the City or the Developer, this Lease and all amendments thereto
shall be reduced to a single instrument, all to the end that the
covenants, obligations and undertakings of the City and the Develop-
er shall repose in a single document.
20.20 Date of Effectiveness of Lease.
(a) This Lease contains the entire agreement of
the parties hereto respecting the subject matters of this Lease and
supersedes all prior understandings, contracts or agreements.
(b) This Lease is effective as of April 20,
1978 notwithstanding the date of its execution.
20.21 No Merger With Fee. I.t is ,understood and agreed
that in the event that the City acquires an interest in the lease-
hold estate, such interest shall not merge with its interest as the
fee owner of the Demised Premises. Likewise, in the event that the
Developer acquires an interest in the fee such interest shall not
merge with its interest as'the lessee of the leasehold estate.
Ir1 WITNESS WHEF.EOF, the parties hereto have set their hands as
of the %� day of July, 1980.
ATTEST:
i
' 1
THE CITY*OF MI INU, (a municipal
corpora iop of the State of
Floridal -^
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