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HomeMy WebLinkAboutCC 1978-09-14 Discussion Item• y 9 tip 1 ,9 7 9 Mr e Richard A, La Bat4 Director Department of Off -Street Parking 190 N. E. Third Street Miami, Florida 33132 Dear Mr, La Baw: Pursuant to your request for a preliminary appraisal of the property referred to as Garage #2, legally described as follows: The parking garage, together with all the structures and improvements built upon the following described parcels: Parcel 1: The East 100 feet Lot 3; the South 24 feet (taken at right angles to the South line) of Lot 2, and that part of Lot 3 West of the East 100 feet thereof and North of the South 37.17 feet thereof, all in Block 102N,- CITY OF MIAMI, Plat Book B, at page 41, of the Public Records of Dade County, Florida. Parcel 2: The South 37.17 feet of Lot 3, less the East 100 feet thereof in Block 102N, as shown in the A.L. KNOWLTON PLAT OF THE CITY OF MIAMI, as recorded in Plat Book B at page 41, of the Public Records of Dade County, Florida, commonly known as #130 Biscayne Boulevard,'Miami, Florida. TOGETHER WITH the structures and other improvements situated on both parcels, which are known as the Municipal Parking Garage. TOGETHER WITH all furniture, fixtures, equipment, machinery and all other tangible personal property owned by Seller, and located on, attached to, or used in connection with the real property as above described; we have inspected the property and reviewed the Operating State- ments for the years 1962 through April 30, 1979, as well as review- ing the Income And Expense Statements for the years 1976, 1977 and 1978 for the other three parking garage facilities operated by the Department of Off -Street Parking, City of Miami, Florida. C Mrs Richard. Ae La aW b i edto' duly .9,j 1019 4'd 2 The subject property is located or the west side of Biscayne Boulevard, approximately 152' north of N. E. First Street, and runs through to N. E. Third Avenue. The dimensions of the site are 74.03' by 174.41', or a total area of 12,911 square feet ±. The improvement consists of a 12-story structure containing 422 car spaces with a Bowser system, which is a semi -automatic system having an elevator suspended from a laterally moving crane. A review of the Operating Statements clearly indicates a loss in operation since the inception of the structure. The appraisers are aware of the parking rates both for Garage #2 and for rates presently secured for privately owned off- street parking facilities. Most of the parking in the downtown central core area, independently operated, are surface parking. Except for two or three parking garages, most of the parking structures in this area are built in conjunction with office type structures. A review of the operation of privately owned parking struc- tures indicates that an operator for surface parking lots could not pay more than $200 to $250 net per parking stall, which would reflect a net income to the fee owner of approximately $105,000. If capitalized at$lreflect 9� aillvaluation reflect a value of y if $1,320,000; and capitalized ad valorem taxes. $1,175,000; lessee to pay The Executive Vice -President of the National Parking Association in Washington, D. C. was contacted for knowledgeable operators. They submitted the names of Mr. J. Layden, President of Allright in Houston, Texas, a publicly owned corporation, and a Mr. Edwin Roth vundea,thethe n�merofoAPCOA,the Inclargest privately ownedcompany Telephone calls were made to both gentlemen by the ap- praisers and the discussion revolved around a possible interest in this facility, namely, Garage #2. Neither of the operators was told the proposed purchase price but were asked: (1) whether they would be interested in purchasing said facility; (2) if interested, what they would consider a fair and reasonable purchase price; and (3) general discussion regarding values and operating problems of this type of facility. I111.IiIh111 IIIIIIIlII1111i in i iii1tIm giun III IIIII■1■I■II1111IIIIIII I1111 u IIIIIIIII II IIIIIIIIII IIII • • . Ridhatd A. La taw til 9, 1070 bikedto Page 3 Mr. Layden's comments were: "He would not touch it exdept as a steal and all they would pay under a lease agreement would be approximately 50% of the gross income for ramp parking." When asked if an offer of $3,000 per car space could be secured, his immediate response was: "Don't let him get away." Mr. Roth's comments were that the Bowser unit was a poor and expensive operating system and parts are hard to get. He would only pay between $500 to $600 per car space plus land value for a facility with this type of system. He also stated that it was his opinion that a good operating parking system would only warrant $1,000 per car space plus land value. When asked what he thought of an offer of $3,000 per car space gross for said facility, he stated: "Grab it and run." Both gentlemen are familiar with the Greater Miami Area and presently operate facilities in Dade County. APCOA is the lessee of the parking facilities at Miami International Airport. Both Mr. Layden and Mr. Roth were cooperative and forthright in the discussion relating to this type of operation. It is the appraisers' opinion that the land as unimproved would have a valuation between $700,000 to $800,000. It is our opinion that the facility including land would have a market value of approximately $1,200,000 to $1,250,000. Very truly yours, STATEWIDE APPRAISAL SERVICES, INC. S. Z. BENNTT APPRAISAL COMPANY ■II■II■III■■III■■�1111■11111■IIIIIII n 111111imm■I■ MI • ma ktMARR8 by COLONEL MITCHELL WOLFSON CHAIRMAN, OFF-STREET PARKING AUTHORITY before MIAMI CITY COMMISSION July 11, 1979 MR. MAYOR AND DISTINGUISHED CITY COMMISSIONERS: Our Board, consisting of Mrs. Dianne Smith, Messrs. Arnold Rubin, Vice Chairman, H. Gordon Wyllie, and Marx Cauthen, are here today with our parking consultant, Mr. Howard May of Conrad Associates of Chicago, and Mr. Robert Riehle, our financial con- sultant of Wainwright & Ramsey, Inc., Ronald Silver (State Repre- sentative), our attorney, and Richard A. La Baw, Director of the Off -Street Parking Authority, to present you with the facts regard- ing our proposed sale of Garage No. 2 on Biscayne Boulevard to Florida Atlantic Investments, Inc., owner of the 30-story New World Tower building next door to the garage and also owner of the vacant lot in the rear and adjoining the City parking garage on the south. First, with your permission, I would like to dispel some of the misinformation that has been published in the MIAMI HERALD. Then I would like to furnish you with the facts as to why it is good business to dispose of this mechanical garage and replace it with a self-service garage. This would better serve the public e....„..1.)1SCUJSi10.{/ &hd ihdtease the income of the Off -Street Parkin' Authority so that We can sell additional revenue parking bonds to meet the future parking needs of the central business district of Miami,. In the first place, this proposed sale was not done in secret► The negotiations have been going on for at least three months. When our Board finally decided that the terms were the best that douid be received, we approved the sale in principle. The next thing we did was to call John McMullan, editor of the MIAMI HERALD, and David Kraslow, publisher of the MIAMI NEWS, to tell them about the proposed sale. Although there is no legal requirement for us to do so, we wanted to notify the public in advance of the pro- posed sale so that it would be a matter of public record for the community as well as for the City Commission and the City Manager. Mr. McMullan said he was objecting to the sale because we did not take bids. In the business judgment of the Board, the price was so favorable, as we will describe to you later, that it would be uneconomical for anyone else to even match that bid. And we were also concerned that the buyers might lower their bid offer. I also want to call your attention to the misinformation about the price. The price was to be $1.6 million all cash net. The MIAMI HERALD headline on Friday, June 29, was as follows. I quote: "SALE PRICE WON'T PAY OFF GARAGE." However, the article below the headline said . . . and I quote: "The garage was built in 1961 for $1.8 million. It was refinanced in 1964. Combined interest and principal payments between now and 1994 on those — 1 i ■ 0 ■ ■ ■ ■ ■ ME • 1 • bids total about $1.8 million." END OF QUOTE. The figure is ihdorrect. The total obligation, including interest to maturity, is $2,166,500 for both Garage No. 1 and Garage No. 2. Mechanical Garage No. 2 is valued at 54% of the cost of the two garages. The principal plus interest if we paid interest and principal on Garage No. 2 until maturity would be only a cost of $1,169,910, not the $1.8 million in the HERALD article. But, of course, if you deduct the interest which we would not be paying on these bonds, the figure Would be less since we would have $1.6 million in cash to pay off the principal if we so desired. By the way, you might be interested to know that $1.6 million invested at 8% simple interest would amount to about $5 million in 1994, which would be quite a bonanza for the City if we didn't have to use the money for construction of another garage. I just bring this to your attention to show you the misin- formation that has been appearing in the HERALD with regard to our operation of the Off -Street Parking Authority. The HERALD has given us credit for doing a good job in building garages that are practical and have esthetic beauty to help the progress of the downtown area. On the other hand, their major thrust has been that the City should turn over the Off -Street Parking Authority to the County -- the same as they would like to do with the Fire Department, Police Department, and the entire City. The Department of Off -Street Parking has a specialized job, and that is to provide parking in the central business district. This is our only responsibility. Outside the designated central business district, private enterprise has to provide parking 11 II I II I III ■IuIU1■IuI IIII IIII I1I1II1 u11i i Ip II I II IIIIII imii iii i iui■.■■■p ium I1 ME • fadiiities. It is not in the best interest of the City of Miami to turn over the efficient and successful Off -Street Parking Authority to the County. This would completely dilute the ability of the Authority to fulfill its primary responsibility to the downtown business district. The reason the Off -Street Parking Authority favored selling mechanical parking Garage No. 2 to Florida Atlantic Investments is simple. They are the only people who could make this garage profitable since, as next -door neighbors, they can increase the size of the garage on their vacant property without adding addi- tional elevators and other mechanical facilities and personnel. Furthermore, they have agreed to a potential $100,000 penalty which would be paid to the Off -Street Parking Authority if they did not build additional parking facilities. And for every space they build less than 50, we would receive a credit of $2,000. So there is a real incentive for them to build the entire 50 spaces. Because of the mechanical nature of Garage No. 2, it has lost over $1,800,000 since it was built in 1961. We will present you with certified figures by our CPA. We are also concerned that we will again lose money this year in spite of a recent rate increase. If we didn't sell the garage, we were planning to raise the rates again to try to break even. Meanwhile, we would be losing the interest on the $1.6 million. You should also note that we were advised that it would cost some $300,000 for improvements to maintain the garage, which would certainly be a financial drain. Ref IIMOMIIIPINIMIMMOVIIIIIIPIWINNIIM.1.11.••••••••• IIII ni ii immi two ii. II I111I11111111111111111111111111111111III11111111111111111IIIIIII IIII IIIIIII IIIIIIIIIIIJII1111 jIiI wMM • WWI permit me to introduce our consultants and have them give you their opinions on why the sale of the garage* as we t utlined, is a good deal for the Off -Street Parking Authority, the public and the City. When we are all through with our pre sentation, please feel free to ask them, any member of our Board, our attorney, or our director, any questions you might care to ask. I also have with me today appraisals which were requested by Commissioner Gordon for this meeting. I think you will find these appraisers very respected M.A.I. appraisers and that their work should satisfy Commissioner Gordon and the entire Commission. The sale, as originally conceived, is a good one and in the best interest of everyone concerned. For the pressing need of the central business area of Miami, we should proceed with the sale of this mechanical garage and go on with the construction of additional parking facilities which are so badly needed. Respectfully submitted, Mitchell Wolfson Chairman, Off -Street Parking Authority ■• (212) 425-9413 WA t l` w It I to 11:1! . it ' t;3 ` ton ultur►ts ott vluniciput Finance t0 Pine Street, New York, N.Y. 10006 It.,bert C.Itiettle ivomosit Mr, Mitchell Wolfson, Chairman Off -Street Parking Board Mr. Richard A. La l3aw, Director Department of Off -Street Parking 40 N.W. Third Street Miami, Florida 33128 Re; The Proposed Sale of Garage No. 2 As we are all aware, the consistent trend of operating deficits at Garage No. 2 has been a matter of pressing concern to the Department of Off -Street Parking, its consultants, and the credit rating agencies. It is a fact of life that mechanical garages are less popular with patrons than self -park facilities and that the average cost of part, ing a vehicle is approximately four times higher than in a self -park facility. a July 1979 Gentlemen; In any business, public or private, sound management practice dictates that one dispose of an unprofitable operation. We concur with your plan to sell Garage No. 2, for the follow- - ing reasons: 1. The original cost of Garage No. 2 was $1, 350, 000 for the building and $506, 000 for the land in 1960. The facility is now 18 years old and has a significant amount of deferred maintenance which could require a heavy capital investment. A net price of $1, 600, 000 impresses us as very advantageous to the Department. You have imposed conditions in the terms of sale which assure that the Garage will continue to be oper- ated and available to the public with cxpondcd capacity thus continuing your commitment to public service. Mr, Mitchell Wolfson, Chairman 4r1 tkiehard A, La Baw, Director Page #2 2 Suly 1579 The sale of the Garage will. allow the Department to in- vest the proceeds in new self -park garage facilities which will be far cheaper to operate thus enabling the Department to continue providing modern, clean, safe parking facilities to the public at lower rates. Deficits at Garage No. 2 have been such a matter of concern at Moody's Investors Service, Inc. and Standard & Poor's Corporation that we have been apprehensive that both agencies might lower the De- partment's credit rating from A-1, which is presently the highest rating accorded parking revenue bonds secured solely by user fees anywhere in the nation. A lowered rating would raise the cost of financing new facilities. * * * * * * * * * * * * * * * In summation, we believe that you have structured the price, terms, and conditions of the sale of Garage No. 2 in the best interests of the public using parking facilities in the City of Miami. Additionally, as financial consult:anti.: to tlic Departnicnt of OiC-Street Parking, and re- sponsible for advice to investors, N,ve approve the sale of Garage No. 2 with the proviso that the proceeds of the sale be used for additional parking facilities to replace Garage No. 2. Very truly yours, WAINWRIGHT & RAMSEY INC. President By or • ■ ■ ■ 1 CON IR.A.1D A,SS0 IATE EAST A DIVISION OF CONSTRUCTION RESEARCH AND DEVELOPMENT, INC. Ali.l%HITECTURE ENGINEERING PARKING CONBtTTLTING 189 WEST MADISON STREET t H10AGO)ILLINOIS 60602 r (312) 263-3tS9 tune 22, 1979 Mr. Richard A. La BaW Director Department of Off -Street Parking 190 N.E. Third Street Miami, Florida 33132 Re: Parking Garage No. 2 Dear Dick: Several times in the past we have discussed the need for additional preventive maintenance work at this facility. The principle area of concern is the many metal parts - gate assemblies, elevator frames, sill angles, etc. - which have rusted to varying degrees. While some of these elements were cleaned and painted a few years ago, some do not appear to have been painted since the facility first opened and have rusted to the point of pitting the surface. Those elements which have been painted a few years ago are in need of a cleaning and a new cost of paint. If you are going to continue to operate this facility, I believe that a rust removal and painting program should be started and maintained. Because of the extent of rust on some of the parts, particularly the gate assemblies, the initial cost of rust removal and painting will be significant. I was pleased to note that the roller tracks are now being greased on a regular basis. However, the cleaning) and painting of other areas is needed if you are going to keep the facility. Also, there are cracks in the concrete which are allowing the reinforcing steel to rust at a number of locations. While there is not a structural problem at present, if allowed to continue, significant damage could result in thoseareas. t i 2 i == ist Ab s o t.A.T s itAitvr Mr, Richard A. La BaW On a preliminary basis, it is my and paint the rusted metal along probably be in the magnitude of Sincerely, CONRAD ASSOCIATES EAST 914w,b-+,47I Howard R. May President HRM/eb 2 t/22//9 guesstimate that the cost to Cieart with the concrete repairs Would $300, 000. 1 ■ 1 ■ i i COr .A..D i�+�. .` ' EAST A DIVISION OF CONSTRUCTION RESEARCH AND DEVELOPMENT, INC. A ROMITECTVFLE LINTGINEERING PARXINQ CoNBLTLZ'ING 189 WEST MADISON STREET CHICAGO;ILLINOIS 60608 + (312) g634-3I89 Off -Street Parking Board City of Miami 190 N.E. Third Street Miami, Florida 33132 Atten: Mr. Richard A. La Bares Re: Parking Garage No. 2 Gentlemen: As you know, I have been concerned about the financial aspects of this facility for some time. At the January 24, 1978 meeting of the Off -Street Parking Board I mentioned several alternatives that the Board should consider. These included: • Raise rates significantly. • Cease operation. • Demolish the structure and use the land for surface parking. • Sell the facility. Last year I recommended a substantial increase in rates for that structure. Those rates were put into effect December 1, 1978. Those new rates were the highest of any facility in your system and were similar to the private parking rates in the neighboring area. In re- viewing the financial reports since the rate increase, I note that there continues to be an operating loss. It should also be noted that this loss is occurring even with an increase in use compared with last year. It is my opinion that the continued operation of this facility is uneco- nomical. I think that even with rates that would be increased each year to stay similar to those at private facilities, the continuing increases in operating costs would result in this facility, at best, staying near the break-even point for direct operating costs. Thus, it would not be able to pay its share of the cost of general operations, administration and debt service. 1111111111111111111111111111111111 IIII■■111111■■1I■1111I II I IIII III IIIIII III IIIIIIIIIII l Cdtt At3 AOsOctAt s OffaiStreet Parking Board 6/22/79 I believe it is in the best interests of the Off -Street Parking Board, the City of Miami, and the bond holders to accept the offer to sell the facility for $1 , 600, 000 . Also, I believe that it is unlikely that a higher sale price could be obtained. The future value of the $1, 600, 000 cash, which you are offered, if invested at 8% annual interest, would be worth over $5, 000, 000 to the Board and to the City by 1994 when the last of the bonds are due. By maintaining the facility, not only would this money not be available, there would be a considerable loss over that period of time. Sincerely, CONRAD ASSOCIATES EAST ee. -kx-7 Howard R. May President HRM/eb 1N11■ 111111111111IIIIII I III f II I IIuIu nIlIon i ■i ii■n_- i vtAfrit. L/.?e y 1,6'a,Oo ,tti+ ? / 1//0100 • • f>70 -. - r ‘14..%11 4,1(N = __ //Woo J7W I3'cob ii /g�� /' goo 171i. 000 ', ) 35,cr lgOoo Ig538ovo 2D3pro '774/oov ,,960©00 3.L.7P. a_ 13 4y3c o o 3 729or,a 40,?7oex, 3 /Mope, 6jz oa 0 II 1111111111111111 • • -DEPARTMENT OF OFF—STREET PARKING SUMMARY OF OPERATIONS OF GARAGE NO6 2 FOR THE PERIOD 1962 THROUGH APRIL 30, 1979 ROBERT J. GRAHAM Certified Public Accountant IIIIIIIIII IIIII1lIiiuii ii 1111 iiiinmuiiiin u...ii.ii■ i. MEM MEM MEM MEM PARTiiENT OF OF, F STREET PARKING , FOR THE PERIOD 1962 THROUGH APRIL 30) 1979 CONTENTS Accountants' Report Cost - Garage No. 2 Refunding Revenue Bonds - Series A Summary of Operations for the Period 1962 Through April 30, 1979 Notes to Financial Statement i 4 5 ROBERT J. GRAHAM Certified Public Accountant ■ ■ ■ ■ RO8if I. cRAtiAM, c.P.A. imam )SI#N Yi. 1alitl. ROBERT J. GRAHAM Certified Public Accountant 256 CATALONIA AVENUE SUITE 302 CORAL GABLES, FLORIDA 33134 TELEPHONE (305) 445•1359 Honorable Mitchell Wolfson, Chairthati Off -Street Parking Board Miami, Florida I have prepared the following statement of Cost - Garage No. 2, Refunding Revenue Bonds - Series "A" Garage No. 2 and the Summary of Operations for the period 1962 through September 30, 1978 from the prior audited statements of the Department of Off -Street Parking. The Department of Off -Street Parking of the City of Miami, Florida has consistently followed the policy of not providing depreciation on fixed assets. In my opinion, except for the failure to provide depreciation as described in the preceding paragraph, the financial statements present fairly the Cost - Garage No. 2, Refunding Revenue Bonds - Series "A" No. 2, and Summary of Operations of Garage No. 2 for the period 1972 through September 30, 1978 based on the methods of allocation described in the accompanying notes to financial statement. The summary of operations for the seven months period ended April 30, 1979 has not been audited by me and accordingly I do not express an opinion on it. MEMBER AMERICAN INSTITUTE OF CERTIFIED PUBLIC ACCOUNTANTS FLORIDA INSTITUTE OF CERTIFIED PUBLIC ACCOUNTANTS July 9, 1979 1I■I 1111IIIIIIIIIIIIIIII•I iuI istid site tuildirtg b 1AtTM NT OF OFF-STREET PARKING CITY OF MIAMIt FLORIDA COST - GARAGE NO. 2 APRIL 30J 1979 506,241 1,351,66:. $ 1,857.903 ROBERT J. GRAHAM Certified Public Accountant . _ • - , 4."4".... • • - • bEPARTMENT OF OFF-STREET PARKING CITY OF MIAM1i FLORIDA IWUNDING REVENUE BONDS - SERIES "A" - GARAGE APRIL 30, 1979 bate Of issue - March 29, 1967 Amount of issue - $3,200,000 Maturity Interest Year End Rate IntereSt 1978 - 79 4,5 $ 41,399 1979 - 80 4.5 38,483 1980 - 81 45 35,446 1981 - 82 32,287 1982 - 83 4.5 28,885 1983 - 84 4.6 25,283 1984 - 85 4.6 21,557 1985 - 86 4 6 17,582 1986 - 87 4.6 13,484 1987 - 88 4.7 9,137 1988 - 89 4.7 4,567 Principal Total $ 64,800 $ 106,199 67,500 105,983 70,200 105,646 75,600 107,887 78,300 107,185 81,000 106,283 86,400 107,957 89,100 106,682 94,500 107,984 97,200 106,337 97,200 101,767 $ 268,110 .$ 901,800 $ 1.169.910 ROBERT J. GRAHAM Certified Public Accountant ■ ■III■IIIIIIIIIIIIIII■IIII■IIIIIIIIII IIIIIIIII 6�. 1964 1965 1966 1967 1968 1969 1970 1971 1972 1973 1974 1975 1976 1977 1978 10/1/78 DEPARTMENT OF OFF-STREET PARKING CITY OF MIAMI SUMMARY OF OPERATIONS FOR THE PER1Ub 1962 THROUGH APRIL 30, 1979-GARAGE NO. 2 f event}e 20,778 48,227 81,026 104,967 110,743 113,563 120,899 123,847 132,023 131,848 139,077 151,612 167,852 178,718 163,786 135,900 150,527 - 4/30/79 . (Unaudited) __.139,052 p_24 205,445 Admit►. & Direct General Expense Opt. Expense 52,662 69,961 77,591 86,734 93,985 108,177 113,002 123,573 140,754 154,737 157,697 172,024 184,817 210,840 225,694 204,149 219,192 135,166 4,769 7,241 10,781 13,149 15,637 17,129 17,894 25,344 23,412 26,243 27,285 33,569 33,808 44,697 37,440 31,573 27,371 16,350 __2_3530,755 $ 413,692 w ect Euense insurance 4,055 4,317 5,287 5,773 5,103 5,076 3,580 3,682 4,265 5,808 5,468 4,469 3,362 5,257 5,313 6,582 6,616 4 280 L88,293 ItteteSt 79,380 79,380 77,760 76,140 55,485 54,169 52,751 51,334 54,796 64,125 61,695 59,265 51,030 48,600 46,048 43,375 40,581 21,971 $. 1,017,885 Net TOte1 thcome (toss) $ 140,866 $ ( 120,088) 160,899 ( 112,672) 171,419 ( 90,393) 181,796 ( 76,829) 170,210 ( 59,467) 184,551 ( 70,988) 187,227 ( 66,328) 203,933 ( 80,086) 223,227 ( 91,204) 250,913 ( 119,065) 252,145 ( 113,068) 269,327 ( 117,715) 273,017 ( 105,165) 309,394 ( 130,676) 314,495 ( 150,709) 285,679 ( 149,779) 293,760 ( 143,233) 177,767 ( 47,715) 1_4 0501,625 1 (1.845,180) ■ ■ ■ •Ay Aecciunting Policies: G btPAtTFENt OF OFF-STREET PARKING CITY OF MIAMI, FLORIDA NOTES TO FINANCIAL STATEMENTS PERIOD ENDED APRIL 30, 1979 the funds of the Department of Off -Street Parking are enterprise funds of the City of Miami, Florida. An accrual basis of accounting is used in which expenditures are recorded at the time liabilities are incurred. Fixed assets are carried at cost. Generally accepted principles of governmental accounting require depreciation on fixed assets of enterprise funds. The Department does not depreciate such assets. Administrative and General Operating Expenses: Administrative and general operating expenses have been prorated to Garage No. 2 based on the ratio Garage No. 2 revenue bears to total Department revenue. Insurance: Insurance has been prorated to Garage No. 2 based on the ratio insurable costs of Garage No. 2 bears to the total insurable costs of the Department. Interest: Interest has been allocated at applicable rates to the bonds outstanding for Garage No. 2. ROBERT J. GRAHAM Certified Public Accountant ;;:':il. :'t' r:', t..1 , It.:,, •cr: 4c:tl'tA Cl:l..i Joseph Grdssie city Manager r /• • s3nt. Vindeiit E:,qGr7.mm, it, '!� 11 y Assistant 'City'= MtYa" 'r {`1MO 1 ■ • 'uiie 29 ► 19,9 ICt: btaft tease AlteeMehtz. Conference/Convention Center buring the discussion portion of the Commission meeting on June 25, we reported to the Commission that we hoped to have the final lease agreement for the development of the Conference/Convention Center on the July 11 agenda for Commission approval. We also stated that we hoped to have the final draft ready for distribution on June 29. Since that report, the City's bond counsel has raised some questions regarding the wording which affected the public and private use, and the method of financing; specifically, revenue lease notes as opposed to revenue bonds. To clarify this issue, Mr. Connolly, Mr. Knox and I are going to New York on Monday and Tuesday, July 2 and 3, to meet with both the City's bond counsel and Smith Barney. Since the bulk of the agreement will not be affected by these changes, I feel it is desirable that the lease agreement be distri- buted as we stated. This will give more time for Commission review. We will subsequently call their attention to any significant changes. Attached are five copies for distribution to the Commission. cc:..,° Mayor and Members of. the City Commission / fd,J'J' 104/ 1 ■ i ■ ■ ■ ■ ■ ■ ■ ■ • ■ ■ LEASE AND AGREEMENT EOIt.DEVELOPMENT BETWEEN CITY OF MIAMI, a Municipal Corporation Under the Laws of the State of Florida fiIAMI CENTER ASSOCIATES, LTD. A Florida Limited Partnership DATED April 20, 1978 IARKEI)• UP une,22, 1979 • • 1 'Mfg tease is a composite of: (i) Lease Agreement executed April 20, 1978; Amendment No. 1 executed September 29, 1978; Changes requested by Continental Illinois National Bank and Mist Company of Chicago, (the construction Lender); its changes to February 1, 1970 are denoted by a vertical line in the left margin; (iv) Changes requested by Massachusetts Mutual Life Insurance Company (the permanent lender); its changes to June 4, 1979 are denoted by a vertical line in the right margin; and (v) Changes requested by the City of ?M,Iiarni and bond counsel; their changes are denoted by underscore, and deletions by "A ". NO Changes requested by the Developer are denoted by *. Changes (iii) — (vi) have not been approved by all pairtie This document was compiled and distributed by: FINE JACOBSON ELOCIC KLEIN COLAN, P.A. 2401 Douglas Road Miami, Florida 33145 (305) 446-2200 Attorneys for Developer aliments and advice of changes, errors or omissions are earnestly solicited. Certain editorial revisions, not considered material, have been made in the interest of consistency. i i ■ LEASE AND AI;tttEMENT FOItDEVELoIMItter 33ETwEEt1 CITY OF MIAMI AND MIAMI CENTER ASSOCIATES, LTD tethises 1A Demised Premises i.2 Excepted Premises Lease Term Quiet Enjoyment Rent 4.1 Rent 4.2 Performance Rent 4.3 Payment of Performance Rent 4.4 Right to Audit 4.5 No Counterclaim or Abatement 4.6 Subordination of Rent 4.7 Credit Against Base and Performance Rent (Deleted) Construction of Improvements 5.1 Description of Improvements 5.2 Developer's Obligation to Construct Improvements 1111111111111111111111..1.11111.1•11111111 111111111111101111111111111111111111111111111111111111 • 5.3 Submission of Plans for Improvements i2 5.4 Approval of Plans and Specifications LS Scope of Review by City S.6 Substantive Changes in Plans S.7 Contract for Construction 5.8 Conditions Precedent to Commencenicilt of Construction 5.9 Commencement of Completion of Construction of Improvements 5.10 Progress Reports 5.11 Payment of Contractors and Suppliers 5.12 Cancellation or Discharge of Liens Filed 5.18 Ownership of Improvements Preparation of the Premises for Development 6.1 City's Preparation of the Premises 6.2 Additional Improvements by City • Utility Service 7.1 Hot and Chilled Water 7.2 Location and Quantity of Utility Service 7.3 Agreement to Purchase and Sell 7.4 Cost of Utility Services 7.5 Right of Entry for Utility Service Convention Center Facilities 8.1 Construction of Convention Center Facilities Use of Convention Center by Developer .3 Concessions IIIII I■uiI=IIIIIIII IIIIIIIIIIIIII■II■IIIIMIN■11■IIIIIIIIIIIII■II.■I L4 Maintenance of Convention Center $,5 Obligation of City to Reconstruct Convention Center a.5 Management of Convention Center (Excepted Premises) 8.7 Time for Performance by City Commencement of Construction Parking Del Construction of Parking Facilities g.2 tlse of Facilities by Developer 0.3 Approval of Plan by Developer and Time to Complete Parking Facilities 9,4 Additional Parking Facilities 9,5 Maintenance of Parking Facilities Hotel Management 10.1 Contract with Hotel Manager 10.2 Operation of First -Class Hotel Equity Investment Capital and IV4ortyage Financing no. Sufficient Funds to Construct Improvements 11.2 Notification of Securing of Sufficient Funds 11.3 Developer to Furnish Name and Address of Mortgagee 11.4 Developer to Notify City of Other Encumbrances ' 11.5 Rights and Duties of Mortgagee (a) Notice of Developer's Default (b) Right of City to Complete 1 Prior to Completion of Improvements After Completion of Improvements Right of Mortgagee to Transfer and Assign Copy of Notice of Breach of Covenant or Default (Et) Right of Mortgagee to Cure Breach of Covenant or Default by Developer (h) Additional Rights of Mortgagee Upon Developer's Default G Obligations of Persons Other Than Mortgagee Acquiring' Leasehold 11.7 Assignment by Mortgagee ll.$ Limited Liability 11.9 Right of Mortgagee to Make a New Lease Restrictions on Use 12.1 Authorized Uses 12.2 Limitation on Retail Sub -Tenants 13. Public Charges 13.1 Covenant for Payment of Public Charges 13.2 Evidence of Payment of Public Charges 13.3 Payment of Public Charges by City Indemnification and Insurance 14.1 (a) Indemnification by Developer (b) Indemnification by City 14.2 Types of Insurance to be Carried by Developer (a) Property Coverage During Construction', Period MIENNEMEMM ■niiiiiiii■iiuiiiiiiii.iiI.iu■.ii • (b) Property Coverage After Constrrtctibft Period ,(e) Comprehensive General Public Liability Coverage During Construction Period ti) Comprehensive General Public Liability Coverage After Construction Period Comprehensive Automobile Liability Coverage Workmen's Compensation Coverage Limited Release of Liability and Waiver of Subrogation 3 Non -Cancellation Clause .4 Certificates of Insurance Right of City to Obtain Insurance 14.6 Non -Waiver of Developer's Obligations 14.7 Partial Loss or Damage Not to Terminate Rent or Agreement 8 Extensive Loss or Damage Rendering Improvements Unusable for Hotel Purposes (a) Suspense Account for Insurance Proceeds (b) Repair or Reconstruction of Improvements (c) Disposition of Proceeds Not Used for Repair or Reconstruction 9 Mutuality of Insurance Obligation 14.10 Reasonable Deductible 14.11 Insurance Carriers: Mandatory Coverage Maintenance, Repair and Replacement 15.1 Maintenance and Repairs 15.2 Reserve for Replacement i ■ 1 13.3 Operating; Costs, Maintenance and Repair of Convention Center 15.4 Waste 15.5 Alternations of Improvements 15.6 (Deleted) 16. Condemnation 16.1 Adjustments of pent (a) If Entire Premises are Taken (b) If Part of Premises are Taken 16.2 Proration of Condemnation Awards 3 Condemnation by City Default - Termination 17.1 Default by Developer 17.2 Default by City 17.3 Obligations, Rights and Remedies Cumulative 17.4 Non -Action on Failure to Observe Provisions of Agreement 17.5 Non -Performance Due to Causes Beyond Control of Parties 17.6 Surrender of Demised Premises 17.7 Ownership of Equipment and Furnishings on Termination 17.8 Party in Position of Surety with Respect to Obligations Developers Contribution to Convention Center Miscellaneous 19.1 Non-Discrimnation • 11111111111111111111111111•1111111 401•00•110111 10.2 t (lug Opportunity Provision 19A Certification of Nonsegregated Facilities 19.4 Arbitration (Deleted) 19.5 Right of Inspection 19.5 Access to Premises IV? Recognition of Mortgagee ReqUireraent8 19.8 Right of First Refusal 10,9 Pre —Opening 10.10 Participation in Civil Functions at Convention Center ma Lease Renewal 19.12 Coordination of Maintenance and Repairs 10.13 Abatement of City Taxes During Construction Period (Deleted) 19.14 Notices 19.15 Provisions of Law Deemed Included How Agreement Affected by Provisions Held Invalid 19 17 Applicable Law and Construction 19.18 Amendments 19.19 Gender and Number 19.20 Award of Contract 19.21 Mortg,ageuble Leasehold 19.22 Mutual Easements 19.23 Public Park and River Walk 19.24 Development of Patricia Hotel Suite 19.25 Rights of Developer to 'University's Portions of Excepted Premises . • • • • 1O: fi Approval of University's Agreement by beveloper 16.27 Clarification of Intent 1p.28 Obligations of City 6 IMII 11•11111111111111111111111111111111111111 111111II 111111II IIIII IIIIIII ■ LtAst AND AGREEMENT Volt fEVFLOPMEND ' IIIS LFASI AND AGREEMENT FOR DEVELOPMENT made and entered irate it Miami, Florida as of this 20th day of April, 1978, by and between the CITY OF hMIAMI, a Municipal Corporation under the laws of the State of Florida (hereinafter referred to as "City"), and MIAI1I CENTER ASSOCIATES, LTD., a Florida Limited Partnership (hereinafter referred to as "Developer"); WITNESSETH: WHEREAS, pursuant to the mutual goals and purposes of the City of Miami, Florida and the University of i'.iiami (hereinafter referred to as the "University"), the City has been designated to oversee and contract for the development of a multi -purpose convention and civic center presently to be known as the City of Miami/University of Miami James L. Knight International Center, and for the purposes of this Agreement to be hereinafter referred to as the "Convention Center"; and WHEREAS, the University has made available to the City the principal. amount of $2,500,000 as advanced payment of rental for the University's Conference Center area within the City of Miami/University of Miami James L. Knight International Center; and WIIERF.AS, for and in consideration of the contribution and participation of the University as aforesaid, the City has entered into an agreement with the University dated April 1, 1977; and i 111■■■■ I■■111111111111 i ii IIIIIIIImiE iii hill i u immu■i.n■iuii. IV11EREAS, 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, 1073; and WHEREAS, the Developer wishes to lease the air -rights of a portion of the area comprising said Convention Center for the purpose of constructing thereon a hotel, meeting rooms, and other related amenities, as well as leasing certain areas within the Convention Center itself, all to be operated as a part of the overall convention center complex. NOW, THEREFORE, in consideration of the covenants herein contained and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. PREMISES. 1.1 Demised Premises. Upon and subject to the conditions and limitations set forth below, the City hereby leases to Developer, and Developer hereby rents from City, for the term, at the Performance Rent and upon the covenants, conditions, limitations and agreements herein contained, and for the term hereinafter specified, the following Demised Premises: (a) The Land. All that parcel of land lying and being in the City of Miami, Dade County, Florida, as more particularly described in Exhibit "A" attached hereto and by reference made a part hereof; and (b) The Hotel Tower. All that air space and the Improvements to be constructed therein bounded as follows: (1) Lower I3oundaries, The horizontal plane elevation 81' 6" as shown in Exhibit "13" attached hereto and by reference made a `part hereof extended. • i (2) Upper Boundary, The horizontal plane l lii thaXIMU 1i elevation permitted by law, (3) Perimetrical boundaries, The perimetris eta boundaries shall conform to the boundaries of the Hotel Tower described in hhibit "B" projected vertically to intersect the upper and lower boundaries; and (c) Hotel Public Areas. Those spaces in the Convention Center as delineated in Exhibit "B" and designated Hotel Offices, Front Desk, Lobby, Lounge, Palm Court, Coffee Shop, Restaurant, Kitchen, Oyster liar, Retail, Laundry, Storage, Housekeeping and Receiving/Personnel. (d) Support. All essential structural support elements, all sump 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 t;as, electric, and water meters and meter rooms; all heating, ventilating and air-conditioning systems and machinery pertaining to and needed to support and operate the Hotel Tower and Hotel Public Areas as a first-class hotel. (e) Easements. Easements of way and maintenance to occupy, attach, repair, renew and maintain the Demised Premises and those portions of the Premises which are contiguous to the Convention Center; and easements of ingress and egress over and across all public walkways, corridors and access to public parking. The City shall not deny access to the Demised Premises nor deny providing adequate services for the operation of the Demised Premises, nor cut off or prevent Developer and other occupants of Demised Premises from having utilization of nece sways and provisions for utility services which may run through portions of the Excepted Premises. • • 1: lv ceepted Premises. But excluding therefrom the following tIte@pted Premises: (a) The Convention Center and all improvements to be eenstructed upon the Land as delineated in Exhibit "B" ttnd designated Excepted Premises subject to the demise, easements, access and use thereof as provided herein. 2. LEASE TERM. The initial term of this Lease shall be forty-five (45) years, from the Date hereof with a single renewal option of forty-five (45) years as set forth in Section lfl.11, such initial term and renewal term collectively referred to as "Lease Term". 3. QUIET EtiJOI M+TENT. City covenants that Developer, upon paying the Performance 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 and Agreement on its part to be performed or complied with, shall not be hindet ed or molested in its enjoyment of the Premises. 4. RENT. 4.1 Rent. (a) Rent as computed hereinafter provided shall commence on the date the Hotel first opens for business and shall be prorated for the period commencing. that date and ending December 31 next following. Thereafter, rent shall be computed annually for each calendar year during the remaining term of this Lease, except that rent shall be prorated for the period commencing January I of the last year of the Lease tcrm and ending with the last clay of the Lease Term. (b) Minimum performance rent specified in Section 4.2(e) shall be due on each June 30th and December 31st after the Hotel first opens for business for the setni-annual period (or proportionate port for which rent is payable) ■ ■ ■ i ■ ■ ■ tiekt preceedinnz Pot purposes of this provision, the Minimum Performance Itent specified in Section 4.2(c) shall apply to each full year commencing with the date the Ilotel first opens for business and each full year thereafter with such proration as may be appropriate on each date rent is due. Payment of Minimum Performance Rent shall be subject to the provisions of Section 4.2(d). 4.2 Performance Rent. Developer shall pay to City es Performance Rent the amount determined under Section 4.2(a), (b), eP (c) whichever is greater: (a) An amount equal to twenty (20%) per cent of "Net Operating Profit" as that term is hereinafter defined. (I) For purposes of this calculation of Performance Rent, "Net Operating Profit" for any calendar year shall be defined as Total Ilotel Receipts for such calendar year from roorn sales, food and beverage sales, net rents from retail tenants and all other concession and operating revenues and any other foreseen or unforeseen operating revenue sources, recognizing that the Developer willhave the right to generate such revenue producing sources, less and except the following amounts for such calendar year: (i) operating expenses in accordance with the uniform system of accounts for hotels • adopted by the American Hotel Association hotel manager's basic and incentive fee real property ad valorem and personal property taxes imposed by any governmental authority (iV) iiisutance premiums (V) (Deleted) NO treasonable reserves for replacementt in accordance with Section 15.2 herein (Vii) replenishment of working capital loss reserves as required by the hotel management contract (Viii) commission payable to travel agents ix) reimbursements to University for conference staff administrative services for arranging and coordinating conference • and bringing participants into the hotel rooms at not less than 15% of the University visitor room income or the equivalent of prevailing industry standard reimbursements for use of activites and services of the hotel normally paid to other agencies when providing or arranging* for similar reservations and hotel services payment oA$4,000.00 per room, for debt service and priority return to equity capital investors the sum of 1 1/2% of gross room receipts or such other comparable amount as may =S- 11111111111111111111111111 NMI 11 III be payable to the first Mortgagee a§ {Participation Interest" tiny tax which is levied on rents by the State of Florida or any other governmental body which is required to be paid by Developer, and discounts which May be granted to groups or group business not to exceed twenty (20%) per cent of the rack rates RIM in determining Net Operating profit under Section 4.2(n) (1), items (i) through (xii) shall be those which are due and imposed, or accrued, during each applicable accounting period, without regard to whether or not the same may be paid during such period. xiv) should any mortgagee holding a mortgage upon the interest of the Developer or its successors under the Lease and Agreement succeed to the position of Developer, by way of foreclosure or assignment in lieu of foreclosure, Performance Rent shall calculate in the manner provided, including; items 4.2 (a) (1) (i) - (xiii) inclusive. IMRE tb) Att attlotint based upon room sales net of Conlin iSsiOnS tit ,• (1) ANNUAL SALES LEVEL (ROOMS ONLY) PET OF COMMISSIONS tN $1 000 627 ROOMS 0 to 8,500 8,500 to 9,000 9,000 to 9,500 9,500 to 10,000 10,000 to 10,500 10,500 to 11,000 11,000 to 11,500 11,500 to 12,000 12,000 to 12,500 12,500 to 13,000 13,000 to 13,500 13,500 & above PatMINT -0- 2.0 2.3 2.6 2.9 3.2 3.5 3.8 4.1 4.4 4.7 5.0 (2) In the event the actual number of rooms built is other than 627, the Performance Rent calculation pursuant to 4.2(b) shall be %. adjusted proportionately with respect to the applicable percentage of sales. (c) An amount which is in accordance with the following Schedule: YEAR 1 2 3 4 8 9 10 through expiration of Lease Term MINIMUM PERFORMANCE RENT $150,000.00 150,000.00 175,000.00 175,000.00 200,000.00 200,000.00 225,000.00 225,000.00 250,000.00 250,000.00 (d) Provided however that Performance Rent due stiallAm payable only to the extent that there are funds available to the Developer after •• • tirOVisinn for payment of the items enumerated in Section 4.2(a) (1) (i) -- (xiii). That fir rtion of the Performance Rent clue but unpaid shall he accrued without interest, The aggregate amount of such accruals of unpaid Performance Rent shall be dUe and payable by Developer to City at the end of each tenth (10th) year during the tease Term and shall be due and payable at the end of the forty-fifth (40th) year of Term. Further, provided, that during each year of the Term it there are any funds available to the Developer after payment of the items enumerated in Section 4.2(a) (1) (i) - (xiii), and there exists unpaid accrued Performance Rent for any prior year • or years, such funds available shall be applied to the payment of said unpaid accrued Performance Rent. And, if at the end of each ten (10) year period during • Term, any unpaid accrued Performance Rent is still outstanding, the Developer • shall not be in default for nonpayment thereof as long as all funds available to the •• Developer after required payments for operation, maintenance and primary debt service are applied to the payment of said unpaid accrued Performance Rent. 4.3 Payment of Performance Rent. Performance Rent due City shall be determined and paid (less any payments of P.1inirnum Performance Rent pursuant to Section 4.l(b)) to City within sixty (G0) days after the close of each calendar year based upon the books and records reflecting Net Operating Profit for such calendar year. Developer shall submit to City within such period a detailed statement of Total llotel Receipts for such calendar year and a computation of the Performance Rent due City. Within ninety (90) days after the close of each calendar year, Developer shall submit to City a detailed statement of Total Hotel Receipts for the preceedin,,; calendar year, a computation of the amount of any Performance Rent accrued but unpaid pursuant to the terms hereof, together with a certificate of Developer's independent certified public accountant, addressed to • C i City) Stating that he is familiar with the provisions of this ],ease uncl Agreement, Whether his examination has disclosed any default in any payments required to be Made hereunder and attesting to the accuracy of the Total Ilotel Receipts reported and the computations of Performance Rent and accrued but unpaid rent. 4.4 Right to Audit. City, or its designated representatives, shall haVe the right to inspect any records and books of account of the Di ..eloper or those claiming under the Developer relating to the Premises, 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 public accountants selected by City as often as may be reasonably requested, provided that such inspection and audit shall be at City's expense unless such inspection or audit shall disclose the existence of a variance of more than five percent (5%) from the Performance Rent for such period computed in connection with the annual accounting statement furnished to City by Developer, in which case such inspection and examination shall be at Developer's expense, and the cost thereof shall be immediately paid to City by Developer. If the annual accounting statement of Developer, in the inspection or audit thereof, shall disclose that additional Performance Rent is payable, the additional amount shall be paid to City immediately after such disclosure, and if Performance Rent shall have been overpaid, City shall credit such overpayment to the rental payments next due thereafter until such credit is exhausted. 4.5 No Counterclaim or Abatement. Performance Rent and all other sums payable by Developer hereunder shall be pair] without notice, demand, counterclaim, setoff, deduction or defense and without abatement, suspension, deferment, diminution or reduction except that Developer shall have the right to setoff against payment of Performance Rent and all other sums payable by Developer hereunder, such sums which maybe actually paid by Developer which are anywhere in this Lease and Agreement prescribed to be obligations of City which are payable by City to Developer or to others pertaining to the Convention Center (for example, and not by way of limitation, payment by Developer of City's obligations for any real estate and/or personal property taxes, and for insurance premiums owed by City on insurance required to be carried by City hereunder and for maintenance, repair and/or replacement of the Convention Center, and any of City's furniture, fixtures and equipment therein, the maintenance and repair and/or replacement of which are necessary to the support of the Developer's Improvements and provide access and other support for the overall. facility). 4.6 Subordination of Rent. A Payments of Performance Rent due City hereunder shall be subordinate to payment of the annual amounts defined in Section 4.2 (a) (1) (i-xiv). A 5. CONSTRUCTION OF IMPROVE_,IENTS. 5.1 Description of Improvements. The Construction on the Demised Premises by the Developer shall consist of a first-class hotel consisting- of not less than 627 rooms, together with the related services facilities and attendant amenities, hereinafter referred to as the "Improvements", the design of which shall be compatible with the design of the Convention Center. 5.2 Developer's Obligntion to Construct Imorovernents. Subject to the terms and conditions herein contained, Developer shall construct the Improvements on the Detnised Premises fully equipped and stocked, adequately capitalized, and ready to commence business within the time limits provided herein. Such Improvetents shall be substantially in accordance with the proposal ■ ■ • ■ ■ i • • ■ ■ ■ s ■ ■ — (a) Site Plans to one -eighth (1/S) inch scale showing ingress and egress, traffic patterns, project limits, proposed utility easements and rights -of -way and principal critical site grade elevations at property lines; One -eighth (I/8) inch scale floor plans for each l ttnthed hereto as t xhibit "C", Developer recognizes that the availability oi' the hotel facilities at the Convention Center is important to the successful operation of the Convention Center. Improvements shall be deemed "fully equipped and stocked, and ready to commence business", in accordance with applicable standards of the American Hotel Association.AAs to whether the Developer has been "adequately capitalized", such matter shall be determined to the satisfaction of City prior to the time that Developer commences construc tion of its Improvements, which will include demonstrating to City that Developer has available adequate equity funds required over and above the amount of its construction and permanent loan financing, and once so determined, the matter of Developer's capitalization shall not again be the subject for inquiry by the City with respect to determining Developer's entitlement to standing under the Lease and Agreement. 5.3 Submission of Plans for Improvements. Developer shall submit copies of Design Development Plans for the Improvements to City as follows: (1) Developer shall submit Design Development PIans to City for its review and approval no later than 130 days after the commencement of the Lease Term. As used herein, Design Development Plans shall include the following: (b) non -typical floor of the hotel; 1 ■ ■ 1 (c) Oiie=eighth (1/8) inch Seale floor plena for each typical flood of the hotel, (t)Otte-halt (1/2) inch scale of pines for typical hotel toms; (e) One -eighth . (1/8) inch scale vertical sections through principal portions of the building which interface the Convention Center showing floor elevations and alignment at principal connections; CO Interface diagrams and other appropriate plans showing relationship and function of hotel with other elements of the Convention Center; finishes; (g) Elevation and renderings of hotel; (h) Specifications covering materials, methods and (i) Construction cost estimates. 5.4 Approval of' Plans and Specifications (hereinafter "plans") by City. Upon receipt of Design Development Plans, City shall review the plans to determine that the Improvements represented thereby are substantially in accordance with those which are to be constructed by the Developer hereunder. If City believes that the Improvements represented by the plans submitted are not in accordance with the requirements of Section 5.1, it shill promptly notify the Developer who shall thereupon cause the plans to be revised to comply herewith and thereafter resubmit the same for approval by City. If the Improvements represented by the plans submitted substantially comply with the terms hereof, City shall give notice of its approval to the Developer. 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 City Shall fail tb approve or disapprove such plans, within the time period provided, City shall be deemed to have approved such plans. 5.5 Scope of Review by City. The review of plans by City shall be solely for the purpose of determining that the Improvements represented thereby in broad terms of size, design and quality meet the requirements hereof. City shall not be required to review such plans in detail, and City shall not be responsible in any Way for any error or omission therein or failure of such plans to comply with any building regulation or for any inconsistency or incompatibility between such plans and the plans for the Convention Center. 5.6 Substantive Changes In Plans. If the Developer desires to make any substantive chan:,es in the Design Development Plans so that the final Construction. Plans are. markedly different from those Plans already approved by City, the Developer shall submit the proposed changes to The Commission of the City of Miami for its approval. If the proposed chap; es conform to the requirements hereof, The Commission of the City of Miami shall approve the proposed changes and notify the Developer in writing of its approval. 5.7 Contract for Construction. Within one hundred twenty (120) days after approval by City, Developer shall submit to City for its approval a contract for construction of the Improvements with a general contractor to be approved by City, such approval not to be unreasonably withheld. The contract for construction shall contain a provision in form and substance satisfactory to City which shall declare City a third -party beneficiary of said contract and which shall provide for notice of default under sueh contract to City and the right of City, at its option to cure such defaults without penalty to City, at its option to cure such defaults without penalty to City or stoppage of the wore:. -11- beg Conditions Precedent to Commencement of CnmAruction. As eesnditions precedent to Developer's right to commence construction, Developer shall have: (a) Secured the approval of City tot the Design Development Plats as herein provided; (b) Submitted evidence to City of the availability bt the equity capital and mortgage financing herein required; (c) Submitted to City the contract for construction herein required. 5.0 Commenement and Cotnpletion of Construction of Improvements. The Developer agrees for itself, its successor and assigns, and every successor in interest to the leased estate in the Demised Premises, or any part thereof, that Developer and such successors and assigns, shall promptly begin and. diligently prosecute. to completion the development of the Demised Premises through the construction of the Improvements thereon. 5.10 Progress Reports. Subsequent to commencement of the Lease Term and until construction of the Improvements shall have been completed, the Developer shall make monthly, reports, in such detail and at such times as may reasonably be requested by City, as to the actual progress of the Developer with respect to such construction. 5.11 Payment of Contractors and Suppliers. Developer shall make, or cause to be made, prompt payment of all monies due and legally owing to all persons doing any wore: or furnishing any materials, fuel, machinery or supplies to the Developer or any of its contractors or sub -contractors in connection with the Premises and any buildings, structures or improvements thereon. Developer shall` C • apply all funds drawn tinder any construction mortgage only to pay costs and c cpenses of developing the Improvements, including reasonable development fees, 1 interest and other "soft costs". Developer shall require lien waivers from contractors and sub -contractors in order to comply with the mechanics' lien laws of the State of Florida or copy of title insurance endorsement insuring over such claims. 1 5.12 Cancellation or Discharge of Liens Filed. If, because of any act or omission of the Developer, or any contractor or sub -contractor, any mechanics' or materialrnen's lien or other lien for labor, material, fuel, machinery or supplies shall be filed against the Premises, or any building, structure or improvement thereon, or against the City, the Developer, at its own cost, 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 insurance company acceptable to City. It shall be the responsibility of _ City, Developer and the architect to design the hotel building so that levels properly mesh and connect with the Convention Center; to coordinate the construction of the Ilotel and Improvements with departments of the City with respect to traffic and other matters. Developer and its architects and contractors and City's architects and construction manager shall cooperate to plan for construction material storage areas, staging and erection and to avoid interference with contractors. if, because of any act or omission of the City, or any contractor or sub -contractor, any mechanics' or matey ialmen's lien or other lien for labor, material, fuel, machinery or supplies :;hall be filed against the Premises, or any building, structure or improvement thereon, or against the Developer, the City, at its own cost, shall within thirty (30) days of filing of such ]icn, cause the same to be caneal1ed and discharged of record, bonded off or satisfied by title opinion acceptable to Developer. 6,13 Ownership of Improvements. improvements constructed tthd iftStallcd bil the Demised Premises and during the term of this Lease, shall be the sole Property of the Developer. fi. 'PREPARATION OF TILE PREMISES FOR DEVELOPMENT. i i • • 6.1 City's Preparation of the Premises. City shall prepare the t ertiised Premises for development prior to the cornmencment of construction. Stich preparations shall consist of the following: (i) Assisting. Developer in securing all necessary licenses, permits and governmental authorizations in connection with the purposes herein specified. '6.2 Additional Improvements by City. City shall, without expense 'to the Developer or public assessment against the Demised Premises, and without impeding, the progress of the construction of the Imnprovernents 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 he provided pursuant to the master plan for the development of the Convention 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 master plan for the development of the Convention Center. 7. UTILITY SERVICE. 7.1 Hot and Chilled Water. City shall construct as a part:of the Convention Center a plant or plants to produce hot and chilled water. ■ ■ • • ■ ■ • ■ Make aVaitable to Developer for use on the Premises such quantities of hot and Chilled water as are reasonably required by Uevcloper 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 Improvements, Developer shall furnish to City estimates of the quantities and specifications of hot and chilled water required on the Premises and the location at the boundary of the Premises at which the Developer wishes to receive the hot and chilled water to be provided by 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 City, and shall be satisfactory to Developer. Developer shall provide to City the approximate quantities estimated as accurately as possible of hot and chilled water which it desires City to provide each year, showing for each such commodity the estimated requirements for each month of the year. 7.3 Anreement to Purchase and Sell. City hereby agrees to furnish and sell to Developer the quantities of hot and chilled water, in monthly quanitics substantially in accordance with the Developer's estimate of monthly usage and at the temperatures and pressures at the point of reception determined pursuant to Section 7.2, and Developer agrees to take the same and to pay City therefor as set forth in Section 7.4. 7.4 Cost of Utility Services. Developer shall pay to City on a monthly basis the cost of hot and chilled water delivered to the 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 exclude taxes and manpower (other than that associated with the direct day to day operation of to 1• tho fitoduction of the hot and chilled water); the cost shrill include the actual expense of maintenance, repairs, replacements and reserve for depreciation equal to JNo per annum of the City's capital cost of the hot and chilled water plant Machinery and equipment determined in accordance with the uniform system of accounts for municipal utilities. The City shall furnish Developer an analysis of unit costs including capital costs and depreciation within 00 days after the close of each calendar year in which rent is due hereunder. 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 respective 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 Rirtt of Entry for Utility Servk e. During the Lease Term, City and Developer, each reserves for itself, and any public utility company, as may be appropriate, the unqualified right to enter upon the Demised Pretnises and Excepted Premises at all reasonable times for the purpose of constructing, maintaining, repairing, or servicing the public utilities located within the boundary lines of the premises and provided for in all easements crossing or servicing the premises. 8. CONVENTION CENTER FACILITIES 8.1 Construction of Convention Center Facilities. City shall construct at its sole cost and expense (except as set forth in Section 1S) and lien free, a fully- equipped Convention Center including banquet, meeting, convention and exhibition facilities substantially in accordance with the plans prepared by Ferendino, Grafton, Spillis and Candela, attached hereto a:. Exhibit "D", and by reference made a part hereof. If the City desires to make any substantive changes tt. • ill tho Convention Center as set forth on Exhibit "D" so that the final Construction plans for said Convention Center are markedly different from those plans attached tts Exhibit "D", the City shall submit the proposed changes to Developer for its approval. If the proposed changes conform to the requirements hereof, Developer shall approve the proposed changes and notify the City in writing of its approval. 8.2 Use of Convention Center by Developer. The Developer and/or its Hotel Manager shall have the exclusive right to provide food and beverage service in the Convention Center and Conference Center. The City recognizes that a first- class convention hotel must have access to convention facilities and in consideration of the Developer's contribution to the cost thereof as set forth in Section 13, the Developer and/or its Ilotel Manager shall have exclusive control over programming the exhibit hall, ballroom, and pre -function area and priority use of meeting rooms as delineated in Exhibit "Er. The Developer and/or its Ilotel Manager shall use its best efforts to accommodate the City's Conference/Convention Center programmatic needs. Developer and City shall cooperate to develop a booking procedure for the hotel rooms, the banquet, exhibition and meeting rooms in the Convention Center which will permit all parties to schedule the use of such rooms without conflict and result in maximizing the use of such facilities consistent with the objectives of all parties. 8.3 Concessions. The Developer's concessions shall be only those types normally associated with the operation of a first class hotel and Convention Center and shall be maintained at competitive price levels. 8.4 Maintenance of Convention Center. City hereby agrees to maintain the Excepted Premises and all furniture, fixtures and equipment therein in ti first-class condition throughout the Lease 'Germ. Such obligation shall include, VP L • but Shalt not be limited tog bearing the cost of a Convention Center sales force and ttht adequate staff to service the Convention Center business, and reserves for replacements, which reserves shall he sufficent to accomplish City's obligation tinder this Section. Said reserves shall also be sufficient to accomplish the City's obligations under Section 15.3. If the City fails to properly maintain the Excepted Premises and furniture, fixtures and equipment therein it (including those paid for by the Developer pursuant to Section 13) or fails to make payment therefor from reserves established for such purpose, then, to the extent that Developer or its Lender shall perform any said maintenance, repair or replacement to City property, and/or shall pay for the same, the Developer shall be entitled to an offset against rents due City. The reserve shall be funded in cash each year in the amount of $100,000 per annum, and the balance on hand from time to time may be invested in interest bearing account or accounts, with interest earned thereon to inure to the benefit of the City. 8.5 Obligation of City to Reconstruct Convention Center. In addition to the obligation of City regarding the repair and maintenance of the Convention Center as set forth above, to the extent that insurance proceeds are available therefor, City shall be affirmatively obligated to repair any damage or destruction to the Convention Center including; that portion included in the Demised Premises at the earliest possible moment. This obligation to repair and reconstruct shall be binding upon the City throughout the term of this Lease and any renewal hereof. Such repair reconstruction shall be of the same type, quality and nature as to make the repaired and reconstructed portions of the Convention Center comparable with the condition thereof prior to the damage or destruction thereof. 8.8 Mnnn,*etnent or Convention Center (Excepted Premises), The Itkeepted Premises, excluding portions leased to University, shall during the term ba placed tinder a management agreeinent with a professional management ! company, experienced in management of Convention Centers, acceptable to City, teVeloper and Developer's First l'i!ortgage Lender in form and content satisfactory • to them to assure that the respective Demised Premises and Excepted Premises, ckcluding portions leased to the University, will both be maintained and operated in a first class manner and that the operations can be properly coordinated although in • tnai:ing provrsons for use and availability of such portions of the Excepted Premises, the City shall have priority as to availability for conventions and other affairs, and in compliance with any of City's obligations to the University. Further, zfr the portions of the Excepted Premises leased to University shall be placed trader a Management Agreement with the same professional management company 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 University, University shall have the right to provide its own such services. 8.7 Titne for Performance by City. As the matter of time limits is vital, and the Developer has adequately represented to the City the time or times within which the Developer will do or perform certain things, it is the case that the Developer's performance is dependent upon performance by the City, and the City therefore covenants with the Developer to do and perform certain things within the following prescribed time limits: (a) The Design Development Plans and Specifications for the improvements to be constructed by City must be completed on or before iiiii■uiu■iuiuiiiuii i1iiui i■i■■. ■ f3etober 20, 1978, and must be reviewed and approved in writing by the Developer, on or before November 20, 1978, which written approval will not be arbitrarily or ttnireasonably withheld. (b) Thereafter, the City must commence construction of: the Convention Center and complete the same to the point that possession of so tiiilch thereof as may be necessary in the premises can be tendered to the beVeloper on or before November 20, 1979, accompanied by certifications by the City and by the Architect/Engineers to Developer confirming that the Convention Center is in such state of completion that the Developer rnny commence construction of the IIotel Tower upon the Convention Center, and that the structural and supporting elements of said Convention Center have been completed in Plans and substantial compliance with the Specifications. (c) Thereafter, the City must finally complete construction of its improvements on or before October 31, 1931, which includes completion of the Central Plant (hot and chilled water), the,installation of all furniture, fixtures and equipment in the City's portion of the Excepted Premises, and it is said date by which the parking facilities, public park and river walk must also be completed. The completion of all of the last mentioned facilities by the City should be accomplished so as to be completed in timely concert with completion of construction of the Developer's Improvements by Developer, all of which can be coordinated and anticipated between the Parties during the course of construction. 8.8 Commeneement of Construction. City shall notify Developer in writing as to the time Developer shall be entitled to commence construction of :Abe' Improvements hereby contemplated, which notification shall not be later than six (6) months from the date hereof or as may be required in conformance with Section 3.7 hereof. • • 1 t'AttI:ING; thl Construction of Parking Facilities. In conntttion With toristruc:tion of the Convention Center, City will construct prrrkiN; futilities for tit Icnst 1,000 automobilies in convenient proximity to the hotel. 9.2 Use of Facilities by Developer. (a) The Developer and/or its hotel manmcr shall be entitled unconditionally to not less than 249 (or 24(;; of all parking spaces, whichever is greater) each day. (b) City shall make available to Developer and/or its hotel manager such number of additional parking spaces as Developer and/or its Hotel Manager shall request. (c) The Developer and/or its Hotel Manager shall be privileged to relinquish to City such number cue!' day of those parking spaces reserved under Section 9.2(a). • (d) Developer's privilege to reserve additional parking spaces pursuant to Section 9.2(b) or to relinquish parking spaces pursuant to Section 9.2(c) shall be on written request by 6:00 a.m. each day. Developer shall pay for parking spaces reserved and unrelinquished at the lo;vest daily rates in effect from time to time whether or not used. (e) Developer additionally reserves the right to reserve certain spaces on a month -to -month basis at the lowest monthly rate in effect from time to time. 9.3 Approval of Plans by Developer and Time to Complete Parl:inc Facilities. The Plans and Specifications for the parkin` facilities shall be completed at or about the same time that the construction of the Convention ■ ■ ■ ■ ■ ■ 1 ■ ■ • ■ ■ ■ Center is Cortrpleted by City to the point that the portions thereof are turned over to the Developer for Commencement of construction of the Developer's trnprovernents as established in Section 8.7, and the City agrees to cause such parking facilities to be constructed so that the same is completed in timely concert with completion of construction of the Developer's Improvements. The Plans and Specifications for the parking facilities shall be subject to the reasonable approval Of the Developer Parking facilities includes pedestrian passageways providing accessways to and from, or between, the subject Project and said parkin facilities. 9.4 Additional Parking Facilities. In the event on any abutting or adjacent parcel now or hereafter owned by the City, the City proposes to be constructed any project, whether an apartment, hotel, office or other commercial structure, which will adversely affect the Ilotel or increase and/or impose upon the parking facility to be constructed by City pursuant to Section 9.1 greater demand and/or demands for parking facilities which would prevent City from meeting its obligations to provide the parking facility for Developer and its guests, tenants and invitees, as required under Section 9.2, then the City shall not undertake such project if it will adversely affect the Hotel; but if only parking is adversely affected, the City shall simultaneously additional parking facilities of a similar nature or surface parking so that there will be existing adequate parking to serve both the subject Project, the additional project and public users. 9.5 Maintenance of Parking Facilities. The City agrees that all parking facilities used in conjunction with subject project shall be operated in a first class manner and kept in first class order and that they shall be operated at all times reasonably necessary to service the subject property. If the City shall fail to so maintain and operate the parking facilities, the Developer, its sllcces.:or and 1 1 • • • • • 1 tissif;ns, shall have, to the fullest extent available under• applicable Codes, Ordinances and the like restrictions of the City, the right to go Upon the pntkinzt facilities and to operate and maintain the same and to have tin offset for Costs thereof against the rents due under this lease. 10. HOTEL MANAGEi.TENT. 10.1 Contract with Hotel r.iana ter. Within thirty (30) days prior to the commencement of construction by Developer of the Improvements hereby contemplated an executed management contract, with a nationally recognized hotel management firtn shall have been executed. 10.2 Operation of First -Class hotel. 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 and 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. ll, EC)UITY INVESTMENT CAPITAL AND MORTGAGE FINANCING. 11.1 Sufficient Funds to Construct Improvements. It shell be the sole responsibility of Developer to secure sufficient equity capital and mortgage financing, in any combination thereof, to construct the Improvements in such a manner as to meet its obligation under Section 5.2. ll.2 Notification of Sccurin7 of Sufficient Funds. Developer shall endeavor to secure the requisite funds as aforesaid Lind shall be obligated to inform the City as to the progress thereof on or before six (G) months from the date hereof. The successful securing of sufficient funds shall be a condition precedent to Developer's right to continue the construction of the Improvements hereby IIu IIIIIIiiuii m■IIIiiiini1 • a contemplated, and failure to hotify City of the availability of the funds on or before six (6) months from the date hereof shall operate to terminate this.Lense and Agreement in the manner set forth in Section 17.1 (f). 11.3 Developer to Furnish Name rind Address of i\iortgaclee. The Developer shall promptly furnish City with the narne and address of the mortgagee Mad of the holder under any mortgage executed on the Premises or the Developer's leasehold estate therein. 11.4 Developer to Notify City of Other Encumbrances. The Developer shall also notify City promptly of any other lien or encumbrance which has been created on or attached to the Premises or to the Developer's leasehold estate therein whether by act of the Developer or otherwise. 11.5 Rir-hts and Duties of R1ortiTagcc. The construction and permanent mortgage financing commitments shall substantially incorporate the provisions set forth below, which shall also be included in the mortgage instruments. The City hereby agrees to the provisions set forth below. (a) Notice of Developer's Default. If the Developer shall commit any act or fail to act, and such action or failure of action shall be deemed a default by any mortgagee, the mortgagee shall give written notice of such default to City concurrently with such notice to Developer. Such notice shall set forth the specific details of the default, the description of the instrument and the particular provision thereof under which the default arises and the period of time, if any, which the Developer has to cure the default. If the Developer shall fail to cure the default, the mortgagee shall so notify City, and City shall have thirty (30) days after receipt of such notice to cure the default, if it shall elect to do so. If City shall elect to cure the Developer's default as herein provided, Developer shall reimburse City for the cost thereof forthwith with interest thereon at the legal rate. ■ ■ ■ ■ (b) ttihrht of Cite to Complete. If any default of the type described in Section 11.5(0 shall occur at any time prior to completion of construction, City (if permitted by law to do so) may elect by notice to mortgagee within such 30 day period to cure Developer's defaults under any mortgage and to complete construction of the Improvements. If the City so elects, it shalt therafter be obligated to complete construction of the Improvements pursuant to the terms of this Agreement on the date specified in this Lease for completion of Improvements provided such date shall be extended by a period of time equal to the number of days as may be required for the City to obtain, based on a bona fide good faith effort to diligently do so, possession of the premises and legal right to complete the Improvements. (c) Prior to Completion of Improvements. If, prior to completion of the Improvements mortgagee shall acquire the leasehold estate in the Demised Premises then in such event, rortgagee: (1) Subject to the City's election to complete the Improvements as aforesaid, may complete the construction of such Improvements in accordance with this leg: cement, by a date which shall be agreed to in writing by the mortgagee and City, and which date shall not be earlier than the date specified for completion of such Improvements by Developer as extended by a period equal to the number of days as may be required by mortgagee to obtain, based on a bona fide good faith effort to diligently do so, title to the leasehold estate in the Demised Premises and possession of the Demised Premises. If the mortgagee so elects to complete the Improvements, it shall so notify City in writing of its intention to do so within 30 days from the date it shall have acquired both possession of the Demised Premises and the leasehold estate in the Demised Premises, and shall by instrument in writing, such instrument to he ;subject to Cityts reasonable approval, agree for itself and its successors and as:iigns and expressly for the benefit of City (i) to complete the Improvements and thereafter keep the Improvements in good and safe condition and repair, and in the occupancy of all buildings constituting part of the Improvements and the maintenance and operation of the Improvements and the Demised Premises, comply with laws, ordinances, codes and regulations applicable thereto, and (ii) to comply with the provisions of this Agreement as same relates to the payment of rents accruing and earned after the date of the acquisition of the estate by mortgagee. (2) may, with the prior written approval of City, not to be unreasonably withheld after acquisition thereof, transfer the leasehold estate in the Demised Premises to a transferee who shall expressly assume all of the obligations of the Developer under this Agreement by written instrument duly recorded. (d) After Completion of Improvements. If, after the completion of the Improvements as provided herein, the mortgagee shall acquire the leasehold estate in the Demised Premises, then, in such event, the mortgagee: (1) shall at all times keep the Improvements in good and safe condition and repair, and shall, in the occupancy of all buildings constituting part of the Improvements and the maintenance and operation of the Improvements and the Demised Premises, comply with laws, ordinances, codes and regulations applicable thereto; and (2) shall comply with the provisions of this Agreement as same relates to the operation of the IIotel and to the payment of rents accruing and earned after the date of the requisition of the estate by mortgagee. •• (e) Right of ?.1or tRr.-ee to Transfer Assign. Mortgagee thay not sell, convey, assign or otherwise transfer or dispose of any or all of its tights, hts, title and interest in and to a mortgage, including any and ,all claims arising thereunder or arising out of the mortgage transactions without prior written consent of the City, which approval the City shall not unreasonably withhold. (f) Copy of Notice of Breach of Covenant or Default. Whenever City, pursuant to this Agreement, 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 Developer under this Agreement, City shall, at the same time, furnish a copy of such written notice or demand to any mortgagee at the last address of such mortgagee as shown in the records of City. (_,) Right of ,riort,grlgee to Cure Breach of Covenant or Default by Developer. Any rnortgag ee shall have the right, at its option, to cure or remedy any breach of covenant or default by the Developer under this Agreement. Any such mortgagee may add the reasonable cost (together with interest thereon at the default interest rate provided in the note secured by such mortgage) of so curing or remedying such breach of covenant or default to the debt secured by such mortgage and to the lien or the mortgage. Such mortgagee shall have thirty (30) days after receipt of notice of said breach of covenant or default to indicate its intention to cure the default and commence action with respect thereto, and shall thereafter diligently pursue such action. (h) Additional Rights of i'Jiortgnr ee Upon Developer':; Default. In addition to any other rights of the Developer's mortgagee set forth herein, and supplementing the same, City agrees to the following: (1) In the event of the Developer's default prior to 1 • coinin_encement or completion of the Improvements, if the holder of any mortgage �-3 0- • • 1 Upon the Developer's interest in this Agreement, after having been given written ribtice of such default by City, elects to foreclose its Mortgage, the City shall hot terminate this Agreement by reason of such default as long as the holden of suoh Mortgage is pursuing with due diligence such foreclosure proceedings. (2) In event of Developer's default after completion Of the Improvements, if the holder of any mortgage upon the Developer's interest tinder this Agreement, after having been given written notice of such default by City, elects to foreclose its Mortgage, and agrees if successful to comply with the obligations of the Developer with respect to curing such default, or prior to or during any foreclosure such holder of the Mortgage is in good faith attempting to place itself in a position to comply with the Developer's obligations with respect to curing such default, the City shall not terminate the Lease and Agreement by reason of such default as long as the holder of such Mortgage is pursuing with due diligence such foreclosure proceedings. 11.6 Ohlicrations of Persons Other Than i'rlort?agee Acquiring Leasehold. Any person, corporation or legal entity (other than a mortgagee acquiring any or all of the rights, title and interest of the Developer in and to the leasehold estate in the Demised Premises), (i) under any judicial sale made under a mortgage permitted by this Agreement or as the result of any action or remedy provided therein, (ii) by foreclosure proceeding or action in lieu thereof, in connection with any such mortgage, or (iii) as a result of any legal process or proceedings (other than eminent domain proceedings by public authority), shall. thereby become liable under and be fully bound by all of the provisions of this Agreement. 11.7 Assi;*nmcnt by Mortrrnrree. (a) Notwithstanding anything hereinbefore to the contrary, tiny `mortgagee acquiring the leasehold c•st.ite shall have the right to assign such IIIIIIIIIIIIIIIIIUIIUIIIIIIIII IIIIIIIIII IIIII IIIIIII■Illlm i i■ n ■ i U■ ■HIIIII•11■IIIIIIIIIII■IIIIIIII IIIII leasehold estate to ti wholly -owned subsidiary of said mortgagee without having first assumed the Developer's obligation hereunder, it being understood that the principal asset of such subsidiary shall be the leasehold estate end the: Improvements constructed thereon. (b) Notwithstanding anything hereinbefore to the contrary) taw Mortgagee or party described in Section 11.6 or Section 11.7 acquiring; the leasehold estate shall have the right to assign such leasehold estate and said mortgagee or party described in Section 11.6 or Section 11.7 shall thereafter be forever released and discharged from this Agreement. 11.8 Limited Liability. Notwithstanding that all of the covenants, agreements, conditions and undertakings herein are in substance and in form creatin_:, personal covenants on the part of mortgagee, the expressed in language liability of mortgagee and of mortgagee's successors or assign:;, and the lrability of any party described in Section 11.6, and such party's sueces"ors and assi;;ns, shall be limited to and shall not extend beyond the leasehold e:ctate hereby created and mortgagee's or such party's interest in the Improvements, and mortgagee and any such party described in Section 11.6, and their respective successors and assigns, shall never be held personally liable on any covenant or agreement or understanding herein expressed, nor shall any action lie against mortgagee or such party, or their respective successors or assigns, to enforce or exert any obligation or liability hereunder, except as enforceable against the leasehold estate, it being the intention of the parties that the sole remedy of the City in enforcing. liability hereunder and all of the terms, covenants and conditions in this A;;reerncnt contained shall be limited to the leasehold estate and interest in the improvements of mortgagee and such party. )(at ttirtht of Mortvn{!ee to Make n New tense: In the alternative (h the rights and obligations of the mortgagee set forth in Section 11.5(h), upon teeeit t by mortgagee of a notice pursuant to Section 1L5(f), if, within thirty (30) days after the receipt of such notice and continuing thereafter while diligently ■ ■ ■ ■ ✓ ■ i ■ ■ ■ proceeding in good faith (a) to enforce its foreclosure remedy or (b) to cure such default, a mortgagee shall: (i) pay all rent and any and all other monies due ttrid payable by Developer hereunder (but for such default and termination) and perform all the other obligations of Developer under this Lease to the extent that the Developer has failed to perform them (except that with respect to any default which cannot be cured by mortgagee until it obtains possession, mortgagee shall have a reasonable time after it obtains possession to cure such default) the City shall, upon the written request of mortgagee made at any time within such time period terminate this Agreement and execute and deliver a new lease of the Premises to mortgagee or its nominee for the remainder of the term of this Agreement, at the rent and upon the terms and conditions herein contained, except for requiretnents which are no loner applicable or have already been performed; provided nothing in Section 11.0 shall require City to deliver possession of the Premises to mortgagee. 12. RESTRICTIONS ON USE. 12.1 Authorized Uses. The Developer or its designated hotel manager shall use and operate the Demised Premises primarily as a hotel and atriehities incidental and related thereto, including, but not limited to, restaurants, ccelttail lounges, retail shops, swimming and health club facilities, meeting and conference rooms uncl for no unauthorized uses. In the event gaming is legalized or authorized within the State of Florida, Dade County and the City of Miami, it is hereby specifically agreed that Demised Premises may be used for such gaming purposes pursuant to licensing from the appropriate governmental authorities should such licensing be obtained by Developer. In such event, City shall be entitled to renegotiate its participation hereunder. Such reference to City's renegotiation of its participation hereunder is subject to the parameter that any renegotiated participation by City shall be competitive with industry standards in effect for other similar type facilities where such gaining is permitted and is conducted from the demised premises. 12.2 ',imitation on Retail Sus-tennnts. The 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. 13. PUBLIC CIIAP.C'ES. 13.1 Covenant for Payment of Public Charges. On and after the cb nmencement of the Lease Tcrm and so long as the Lease Term shall not have expired or have been terminated pursuant to this Agreement, the Developer covenants and agrees to pay and discharge, before any fine, penalty, interest or cost may he added, all taxes, service charges, water rents, and other public charges (hereinafter called "Public Charges") which if not paid would be a charge, claim or lien upon or against the Demised Premises, or any part thereof, or upon or against the Rent, Notwithstanding the provisions of the preceding sentence, the Developer shall have the right to pay Public Charges in installment:; if permitted by II■ ■I IIIIm1111111mn■111nii1imiiiiii in o'■■ i MOO 1111 MIMI law, and to contest the tlrrlount or validity; iti whole or itt part, of any Public Charges by appropriate proceedings and if the Developer is prosecuting; such proceedings With reasonable diligence, may, to the extent permitted by law, postpone or defer payment of Public Charges so long as such contest shall continue.. 13.2 Evidence of Payment of Public Char7es. The Developer, upon request, shall furnish or cause to be furnished, to City and to any mortgagee, if the Demised Premises are encumbered with a mortgage, official receipts of the appropriate taxing authorities or other proof satisfactory to City or the mortgagee, evidencing. the payment of any Public Charges which were due and payable on the Demised Premises thirty (30) days or more prior to the date of such request. 13.3 Payment of Public Chard*es ham'. City will promptly pay and discharge any public c`;arg;es applicable to the 'Excepted Premises, although City may be reimbursed for any such charges applicable to portion:; of the Excepted Premises occupied by the University, and City shall timely pay all real estate and/or personal property taxes which may be levied and assessed, IC not exempt, against portions of the against the Excepted Premises includ \ing such taxes Excepted Premises occupied or used by the University, reimburse City for its share thereof. INDEtr'.NIFICATION AND INSURANCE. Indemnification hY Developer. The Developer shall 14. 14.1 (a) although University may pay, indemnify and save h:irmle:S the City, its 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 City, or their 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 or omission of the i i • • • • 1111111111111111111111111111111111 feveloper, its agents or employees, or its contractors or sub -contractors or tiny lessee of the Developer or its hotel manager in connection with (i) tiny building,, construction, installation or development work, service or operation bcin,t 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 operation of the Premises after the commencement of the Lease Tcrrn: provided, however, that such indemnification: (1) shall be limited to the extent that the City, its agents or employees are, not protected by insurance, whether such insurance has been supplied by Developer, City, its agents or employees, and (2) shall not he applicable where a decision or judgment of a court of competent jurisdiction holds that any personal injury, or injury to persons or death or property damage was the direct and primary result of nets of commission, omission, negligence or fault of City, its agents or employees. 'Me Developer shall pay a ll costs and expenses which may be incurred by, and any monies due under any judgment or decree rendered against City (i) in enforcing compliance by the Developer with provisions of the Agreement, or (ii) in defending any suit or proceeding brought against City for the violation by the Developer of any law or ordinance during the Lease Term, or (iii) in defending any action or suit (a) for which indemnification is required hereunder, or (b) on the part of the Developer in the perfortnancc of any obligation of the Developer under the Agreement. If City shall be made a party to any litigation with respect to any matter growing* out of the Agreement as to which the Developer is at fault, the Developer shall pay all judgments, decrees and costs or expenses incurred by or imposed on City in connection therewith. (b) Indemnification by City. The City• shall %!s 0,1% :Indemnify and save' harmless the Developer, its agents, .and suits) factions, claims, demands, detnag es, losses and other renson:ilalc es:pehses arid Mists of every kind and description to which the Developer, or their 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 co,nmission or omission of the City, its agents or employees, or its contractors or sub -contractors 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 (ii) any i • uses, occupancy, maintenance, repair and improvements, or operation of the mExcepted Premises after the comrnencement of the Lease Term: provided, - however, that such indemnification: (1) shall he limited to the extent Developer, i the its agents or employees are not protected by insurance, whether such insurance has been supplied by Developer, City, its agent:, or employee:,, and (2) shall not be applicable where a decision or judgment of a court of comp gent jurisdiction holds that any personal injury, or injury to persons or death or property damage was the direct and primary result of acts of commission, omission, negligence or fault of City its agents or employees. The City shall pay all costs and expenses which may be incurred by, and any monies due under any judgment or decree rendered against Developer (i) in enforcing compliance by the City with provisions of the Ad eement, or (ii) in defending any suit or proceeding brought against Developer for the: violation by the City of any law or ordinance during the Lease Term, or (iii) in defending any action or suit (a) for which indemnification is required hereunder, or (b) on the part of the City in the performance of any olaligntion of the City under the Agreement. If Developer shall be made a party to any litigation with respect to any matter growing out of the Agreement as to which the Cit.; is at • manimmEEENIEN II II I I I IIII■ IIIIII10111III■111.10111111111111MEiuiiiiiiiMiiiiiiii atilt, the City shalt pay all judgments, decrees and costs or expenses incurred by tit' iMDOSed on beVelopet' in connection therewith, 14.2 Types of insurance to be Carried by Developer. (a) Property Coverage Durin, Construction Period. During the eonstrttction period, the Developer, at its expense, shall keep all of the insut'able buildings, property and equipment on the Demised Premises, insured against loss or damage as a result of fire and those other hazards known as "All Task Coverage", under a Builder's Risk insurance policy for physical damage or loss to the extent that such insurance is available from most insurers of recognized responsibility authorized to do business in Florida. Such insurance shall be in an amount not less than 100:'S of the cost of construction of said buildings, property and equipment. Each insurance policy shalt provide for including City as an additional insured, as its interest may appear, and for loss to be payable to Developer and any mortgagee. (b) Property Coverage After Construction Period. During the Lease Term, the Developer, at its expense, shall keep all of the insurable buildings, property and equipment on the Demised Premises insured against loss or damage as a result of fire and those other hazards ordinarily insured against from time to time during the term hereof in the City of Miami, Florida, in policies providing, for "All Risk Coverage" for physical damage or loss to the extent that such insurance is generally available from most insurers of recognized responsibility authorized to do business in Florida. Such insurance shall be in an amount sufficient to prevent Developer from being a co-insurer and shall be based on not less than ninety percent (00%) of the replacement value of said buildings, property and equipment. To the extent that insurance proceeds arc available, the 1 t) Veloper shalt be obligated to repair any damage or destruction to the t)erriiscd PeeMises at the earliest possible moment: Each insurance policy shall name City as an additional insured, as its interest may appear, and for loss to be payable to t)cveloper and any mortgagee. (c) Cornprehensive General Public Liability Coverage 1Dtit'in& Construction Period. The Developer shall secure and maintain or cause to be secured and maintained in full force and effect such comprehensive general public liability insurance as will protect the Developer, City, University, their agents and employees from any and all claims and damages for personal injury, injury to persons or death, or damage to any property of 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 l)ernised Premises during the construction of the Improvements, 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. The amounts of such insurance shall not be less than a Combined Single Limit of $10,000,000.00, for personal injury, injury to persons or death, or for property damage. Each policy shall name the City, University and Mortgagee as an additional insured and each policy shall contain cross -liability endorsements. (d) Comprehensive General Public Liability Coverage After Construction Period. After the construction of the Improvements has been completed, the Developer shall secure and maintain, or cause to be secured and maintained in full force and effect comprehensive general public liability insurance as will protect Developer, City, their agents and employees, from any and all claims for damages for personal injury or death, or for damage to any property of • City or the public which may arise out of Developer's use ttnd occupancy of the Premises and the operation of a hotel thereon. The amounts of such insurance shall not be less than a combined single limit of $10,000,000.00, personal injury, injury to persons or death or for property damage. Each policy shall name the City, and Mortgagee as additional insureds, and each policy shall contain cross -liability endorsements. (e) Comprehensive Automobile Liability Coverage. The Developer shall secure and maintain, during and after the construction period, such comprehensive automobile liability insurance, including non -owned and hired car coverage, as will protect the Developer, Mortgagee and the City, from any and all claims and damages for personal injury or death or property darnage to any property of 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, on or over the Demised Premises during and after construction 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 them. The amount of such insurance shall be not loss than a combined single limit of $10,000,000.00 for injury or death or property. (f) Workmen's Compensation Coverage. The Developer shall secure and maintain, in full force and effect, such Workmen's Compensation as is required under the laws of the State of Florida. (g) Limited Release of Liability and Waiver of Subrogation. The City, and 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 ■ 1 w • 14.3 Non -Cancellation Clause. All insurance policies or • agreements shall provide (to the extent such provision is obtainable) that they •_ cannot be cancelled or terminated until after at least fifteen (15) days prior notice m mhas been given to City to the effect that such in:,uranee policies or agreements are m to be cancelled or terminated at a particular time. • tattled by the City or Developer and in force at the time of any such damage. The City and Developer shall cause each insurance policy obtained by either to provide that the insurance company waives all right of recovery by 1,vay of subrogation against any insured party in connection with any darnage covered by any policy.Alf the releaso. of City, or Developer as set forth in the first sentence of this Section, 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 insurers. 14.4 Certificates of Insurance. The Developer shall provide City with such certificates of insurance or other acceptable proof of compliance with the insurance provisions of the Agreement. 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 required pursuant to this Agreement, City at its option may procure or renew such insurance and all amounts of money paid therefor by City shall be payable forthwith by the Developer to City . ith interest thereon at the legal rate per annum from the date the same were paid by City to the date of payment thereof by the Developer. City shall notify the Developer in writing of the date, purposes and amounts of any such payments made by it. 14.6 Non -Waiver of 1)eveloaer's Obli'.►,ations. No acceptance or approval of any insurance policy or hc,lieies by City shall relieve or release or be construed to relieve, or release the Developer from any liability, duty or ob1i<<atiort tissUi led by) or imposed upon it by the provisions of the Agreement. 14:7 Partial Loss or Dam1trfe Not to Terminate Rent or A«reement► Any loss or damage by fire or other casualty of or to any of the Improvements) Which lass or damage does not render the Improvements unusable for hotel purposes in City and Developer's reasonable judgment, shall not operate to terminate the Agreement or to relieve or discharge the Developer from the performance and fulfillment of any of the Developer's obligations pursuant to the Agreement: 14.8 Extensive Loss or Damage Rendering Improvements Unusable for Hotel Purposes. Any extensive loss or damage which renders the Improvements substantially unusable for Hotel purposes in City and Developer's reasonable judgment shall not operate to terminate this Agreetnent hart shall have the effect of causing a total abatement of rent until such time as the loss; or damage to the Improvements is reconstructed and operational pursuant to the follo vie: sections. (a) Suspense Account for Insurance Proceeds. Whenever any of the Improvements, or any part thereof, shall have been damaz,cd or destroyed, the Developer shall promptly male proof of loss and shall proceed promptly to collect, or cause to be collected, all valid claims which may have arisen against insurers or others based upon any such damage or destruction. All proceeds of any such claims (and any other moneys provided for the construction, restoration, or repair of any such Improvements), whether held by the Developer or by a rnort'agee, shall be held in trust in a separate suspense account. In the event that the Improvements are damaged or destroyed, the developer shall promptly give City written notice of such damage or destruction, stating the, date on which such damalre or destruction occurred. (b) Repair or Reconstruction of Improvements. Unles:, CRY shalt otherwise consent in writing, the insurance proceeds shall be expended to Y.. repair oP reconstruct the Improvements, and the Developer covenants and agrees tO eotittnence and complete the reconstruction or repair of such ltnprovetnent s, to the Satne size, floor area, cubic content and general appearance as prior to such destruction promptly after City has approved the Devclopctr's Design Development Plans, for such reconstruction or repair. (c) Disposition of proceeds Not Used for Repair or Reconstruction. If the amount of insurance proceeds shall be in excess of the cost of repair or reconstruction, such excess at the election of the mortgagee shall be applied to reduce the mortgage indebtedness encumbering the Demised Premises or paid the Developer. If the Improvements are not repaired or reconstructed, the insurance proceeds at the election of the mortgagee shall be applied to retire mortgage indebtedness or paid the Developer. 14.9 Mutuality of Insurance Obligation. All insurance obligations of Developer hereunder as they relate to his procurement of insurance on they Improvements shall equally apply to City in its procurement of insurance for the . Convention Center and the parking facilities described in Section ll, including, Without limitation, the naming of Developer as an additional insured and the indemnifying of Developer by City for the reason set forth in Section 14.1. 1•1.10 Reasonable Deductible. All types of insurance required by this Section 14 may contain n reasonable deductible provision provided City is given a dvanee notice of said deductible provision and approves same in writing. 14.11 Insurance Carriers: Z?iandatory Covent C. The City and Developer shall cause property, comprehensive general liability and comprehensive A automobile liability coverage to be procured from the same insuraancc carrier or Carriers, and with respect to the property coverage to carry same on the basis of full insurable value based upon replacement cost from time to time as projected by Stich insurance carrier or carriers. Maintaining of insurance by City and Developer is obligatory) and neither Developer nor City shall be permitted to be self -insurers) eXeept with regard to the reasonable deductible applicable to property coverage. 15. MAINTENANCE, REPAIR AND REPLACEMENT. 15.1 )Maintenance and Repairs. Developer, at its expense shall keep the Premises, the Improvements thereon and the equipment and furnishings ..,therein in good and clean order and condition and will promptly make all necessary of 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. Developer waives any right created by any law now or hereafter inforce to mal:e repairs to the Premises at City's expense. Developer shall comply with all Laws, ordinances, codes and regulations applicable thereto. The Developer shall have the right, after written notice to 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 prosecution of such proceedinT, provided no civil or criminal liability would be incurred by City and no lien or charge would be imposed upon or satisfied out of the Demised Prerises by reason of such delay. 15.2 Reserve. for Replacements. Developer Shull establish a reserve for replacements in the minimum amount of $32.1.00 per room per year to provide funds for replacement or improvement of those parts of the Improvement;; and equipment and furnishings therein which are subject to deterioration as a result tia ordinary Use and wear and tear so that the Demised Premises will at all times be kept and maintained in first-class condition and repair: Such reserves shall be Maintained in a separate bank account and may be expended by Developer only for the purpose set forth in this Section. 15.3 Operating; Costs, Maintenance and Repair of Convention Center: City at its expense shall operate the Convention Center and shall maintain the Convention Center, the improvements thereon and the equipment, furnishings and fixtures therein in good and clean order and condition 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. 15.4 Waste. The Developer shall not permit, commit or suffer waste or impairment of the Premises, or the Improvements thereon, or any part thereof. 15.5 Alterations of Improvements The Developer shall have the right, from time to time, to make such alterations and improvements, structural or otherwise, to the Demised Premises and Improvements, as the Developer deems desirable; provided however, that the Developer shall not, without the prior written consent of City, demolish all or any of the Itnprovetnents, or change the Improvements so as to make them less compatible with the operation of Convention Center. 15.6 Deleted • CON DEMN ATION. 16.1.: Adjustments of h.ent.; f;h) tt t:ntire Prerni:;es Are Taken. In the event the PrOtiiises in its entirety and the Improvements shall be acquired under the exercise or the right of eminent domain, then the Rent and the Public Charges for the part of the Premises so acquired shall be prorated and paid by the Developer to the date ' ■ possession is taken by the authority exercising the right of eminent domain. (b) If Part of Premises Are Taken. As of the effective date of such acquisition, the Rent shall he reduced in direct proportion to the ratio of the area of the part of the Demised Premises so acquired to the total area of the Demised Premises; provided, that if such reduced Rent shall be deemed grossly inadequate or excessive by City and the Developer, taking into account the equities = existing at the time of such acquisition of part of the Demised Premises including;, without limiting the generality of the foregoing language, the rentals and other income being realized by the Developer from Improvements located on the part of the Demised Premises so acquired, the Rent may be reduced to such other amount or amounts as may be agreed upon in writing by City and the Developer. If any part of the Demised Premises or Impro.•ements shall be so acquired as to render the remainder of such Demised Premises or Improvements thereof unusable for the purposes for which the Demised Premises are intended by the Agreement, then the Developer shall have the right to terminate the Lease on thirty (30) days notice to City, given within ninety (90) days of such acquisition. In such event, the Rent and the Public Charges shall be prorated and paid by the Developer to the effective date of such acquisition. 16.2 Proration of Condemnation Awards. In the event the premises or part thereof, and the Improvements thereon shall he acquired under the exercise of the right of eminent domain at any time during the Lease Term, the division of • ■ tlid Compensation therefor shall be baser] upon the respective interest at law of all putties having an interest in the premises, Any portion of such compensation attributable to the Leasehold and Improvements shall be applied first to restoration, it the Improvements can be restored, and then at the election of the mortgagee, to retire mortgage indebtedness or be paid to Developer. 16.3 Condemnation by City. should there by any condemnation of the Developer's interest in the Demised Premises by the City, then City agrees that itt tto event shall the condemnation award be less than a sum which is equal to the Developer's cash equity plus the amount due on the Mortgage or Mortgages then outstanding and placed by Developer against the Demised Premises, without the foregoing being intended in any manner to limit the amount which Developer may be entitled to recover in condemnation by City under applicable law. 17. DEFAULT - TER i:lli:A'I'ION. 17.1 Default by Developer. There shall be an event of default by Developer under this Lease if: (a) Developer shall fail to pay any installment of Performance Rent due City when and as the same becomes due and payable and such failure shall continue for more than ten (10) days after written notice thereof from City to Developer. (b) If the holder of any indebtedness for borrowed money secured by lien on Developer's interest in the Demised Premises (whether or not Developer is personally liable for such indebtedness), shall 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 i 1110111101111111 11 liMmiiiiiiiiiiinammumition ■ (e) Developer shall fail to perform or cornpl_, with any Miler Material term or provision hereof and such failure shall continue for more than thirty (30) clays after City shall have given Developer notice of such failure. (d) Developer shall make a general assignment for the benefit of creditors, or shall admit in writing its inability 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, ootfposition, 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 proceeding, or shall seek or consent to or acquiesce in the appointment bf any trustee, receiver or liquidator of Developer or any material part of its properties; or (e) Within 90 days after the commencement of any proceeding against Developer seeking any reorganization, arrangement, .composition, readjustment, liquidation, dissolution or similar relief under any present or future statue, law or regulation, such proceeding shall not have been dismissed, or if, within 90 days after the appointment without the consent or acquiescence of Developer if any trustee, receiver or liquidator of Developer or of any material part of its properties, such appointment shall not have been vacated; (f) Developer shall fail to give notice to City of the securing of sufficient funds to construct the Improvements hereby contemplated within six (6) months from the date of the execution of this Lease and Agreement. In such event, but subject to Section I1 hereinabovc, City, atany. Aline thereafter, may give a written notice of termination t i IIiii■■II■II■I111111uI1 Developer, and on the date, specified in such notice, which shall not be less than this ty (30) days, this Lease and Agreement shall terminate and the term hereof shalt expire and all rights of Developer hereunder shall cease, unless before such date specified (i) all arrenrages of Performance Rent payable to City undet+'this Lease and (ii) all other defaults hereunder at that time existing shall have been remedied. In the event of the occurrence of (f) above, Developer's obligations hereunder shall cease, (g) Notwithstanding any provisions of this Lease tinder which Lessor may declare a default and terminate or cancel this Lease or Lessee's rights or interests hereunder, no notice of default given by Lessor to Lessee or other action by Lessor to declare a default (other than a notice of default in payment of rent, or other. charges which can be corrected or cured by the payment of money) shall be effective to terminate this Lease, if and so long as the Leasehold Mortgagee shall promptly (after the giving of such further notice to the Leasehold Mortgagee) cornrnence 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 the Leasehold Mortgagee to correct or cure, and, which shall be deemed waived as to said Leasehold Mortgagee), if and so long as the Leasehold Mortgagee shall promptly commence the enforcment 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 Lessee to be performed during the period of its ownership of the Leasehold estate. (h) If this Lease should terminate by reason of the happy Wino of any event of default, and if, at the time of such termination, there • MINIM time tiny Leasehold Mortgages constituting liens upon the Leasehold estate of Lessee., Lessor shall give notice thereof to the holders of such mortgnge.s and uport request of the holder of the first Leasehold Mortgage made. within sixty (G0) days after the giving of notice by Lessor to such holder, or of the holder of a subordinate leasehold mortgage more than sixty, but within ninety days after the giving of such notice (if said holder of the first Leasehold Mortgage has failed to request a new lease), and upon payment to Lessor of all rent, and all other monies due and payable by Lessee hereunder and the curing of all defaults hereunder up to the date of such termination which are within the power of such holder to cure and the performance of all of the covenants and provisions hereunder up to the date of such termination which are within the power of said holder to perform (any defaults not witin the power of said holder to perform shall be deemed waived as to such holder), Lessee shall enter into and deliver a new lease of the Demised Premises with such holder for the remainder of the term at the same rental grid on the same terms 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 of the Improvements to such holder, free of encumbrances, liens, claims or charges imposed thereon by Lessor. The estate of the holder of such Leasehold Mortgage, as Lessee under the new Le_►se, shall have priority equal to the estate of Lessee hereunder (that is, there shall he 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 Lessee under this lease as of the date immediately preceding the date this lease vent into default, except, however, any charge, lien, or burden rrhich should not have been permitted and or should have been discharged by Lessee under the terms of this Lease). The quitclaim deed to the lrnprovetnents shall reoitc that the grantee holds title to the improvements only So tong as the new lease shall continue in full force and effect, that upon tcrMination of the new lease, title to the Improvements shall revert to Lessor automatically without payment, that the grantee covenants not to convey the Improvements except 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 Lessor to deliver physical possession of the Property to the holder of such Leasehold mortgage unless Lessor has physical possession thereof. 'I'he said holder shall pay all expenses, including reasonable attorneys' fees, incident to the execution and delivery of such new lease and quitclaim deed, but shall be entitled to an adjustment in the amount equal to the net income, if any, derived from the Improvements during the period from the date of termination of this Lease to the date of execution of such new lease. 17.2 nefault by City. There shall be an event of default by City under this Lease if (1) City shall have failed to prepare the premises for development in accordance with the provisions hereof (2) City shall have failed to construct the Convention Center referred to herein or shall have been delayed in completing same on or before the date the hotel is completed (3) City shall have failed to repair and maintain the Convention Center as contemplated hereby and (•1) City shall have failed to comply with any other material term or condition hereof. In such event Developer at any time thereafter, may give a written notice of termination to City, and on the date specified in such notice, which date shall not be less than thirty (30) days, this Lease and Agreement shill terminate and 1 ■• DeVelopePs obligations hereunder shall cease, unless before such date City Shall have cured the defaults In the event of a delay by City in completing the Convention Center as contemplated by (2) above, City shall be required, as an element of damages, to incur the additional interest expense payable by Developer to its mortgage lender until such tirne as the Convention Center is completed.. leVeloper's remedies, in addition to the terrnination rights hercinabove provided, shall b e1ega1 action against City or the right to perform any obligation of the City hereunder and to apply the cost of curing such default (plus accrued interest at the lawful maximum) to rents next coming due the City. 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 anti expenses incurred by the Developer attributable to such delay, which may include those such as additional Commitment Fees to extend the Permanent Loan Commitment, or additional cost to obtain a new Permanent Loan Commitment if by reason of such delay the existing Permanent Loan Commitment is canceled. 17.3 Obligations, flights and Remedies Cumulative, The specified rights and remedies to which either City or Developer may resort under the terms Iof this Agreement are exclusive of any other remedies or means of redress to which City or Developer may be lawfully entitled. 17.4 Non -Action on Failure to Observe Provisions of Agreement. The failure of City or Developer to insist upon strict performance of any term, coven^nt, condition or provision of this Agreement shall not be deemed a waiver of any right or remedy that City or Developer may have, and shall not be dcerned a waiver of a subsequent default of such term, covenant, condition or provision. 17.5 Non -Performance Duce to Cau'.es Beyond Control of Parties. In :the event performance of any of their respective covenants, n;,rcernents or • ■ Obligations under this Lease or Agreement by City or the Developer i3 prevented, interrupted or delayed by causes beyond its control, includng but not 1-estrittcd to strike, riot, storm, flood, acts of God or of the public enemy, acts of the Government, acts of the other party, fires, epidemics, quarantine restrictions, freight embargoes and unusually severe weather, or delay: of sub -constrictors due to such causes, and not caused by any act or failure to act by the party thereby' delayed in such performance, the date or time or times for the performance of such cbVenant, agreement or obligation by City or the Developer shall be extended for a period of time equal to the number of days the performance of such covenant, agreement or obligation by City or the Developer is so prevented, interrupted or i ■• i 17,7 Ownership of Eauinment and Furnishitvs on Tei•pination. �3c►ii eXpiration or termination of the Lease Term, title to all furniture, fixtuwes 1hd equipment on the Demised Premises shall vest in City, subject to then existing; Valid liens and mortgages. 17.8 Party in Position of Surety with Respect to Obiations. The beVeloper, for itself and its successors and assigns, and for all other persons who #if a or who shall become, whether by express or implied assumption or otherwise, liable upon or subject to any obligation or burden under this agreement, hereby Waives, to the fullest extent permitted by law and equity, any and all claims or defenses otherwise av:iilsble 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 operation of law, including, without limitation on the generality of the foregoing, any and all claims and defenses based upon extension of time, indulgence, or modification of terms of contract. 18. DEVELOPERS CONTRII3UTION TO CONVENTION CENTER. Developer shall pay the sum of $5,700,000 for the following items and in the manner herein provided: (a) $1,600,000 for the cost of constructing the Ballroom, Prc-- Function Area, and Exhibition hall, as delineated in Exhibit "i3". The Developer's contribution shall he paid pro tanto as the work progresses. $1,000,000 for the purchase of furniture, fixtures and equipment for use in the above spaces to be paid on the first invoices covering such items until such sum is exhausted. $2,700,000 after provi:;ion for payment of interest pursuant to Section 1S(d), for the purehire of furniture, fixtures and td) ■ • • Cquipmeht for use in the Convention Center as the City shall determine to be paid on invoices covering such items until suOh Milt is exhausted. lDeveloper's obligation to pay the sum specified in Section 13(c) Shall be reduced by a sum equal to the Developer's interest Cost on the aggregate sums advanced from time to time in payment of items 13(a), (b) and (c) at such rate of interest as the Developer shall be obliged to pay under its construction loan for the period from the dates of payment to the date on which the Developer's permanent loran closed. $400,000 as a portion of the cost to the City of constructing retail :pace payable as follows: S =0,000 per annum inclusive of principal and interest applied first to interest and then to principal, payable annually in arrears, in consecutive payments, beginning one (1) year after the date on which the Convention Center constructed by City and the Developer's Irnprovernents are fully completed and operations have commenced, such payments to continue until such time as the full additional contribution of $400,000, plus all accrued interest thereon at the rate paid by the City on its Revenue Bond, have been fully paid; provided that to the extent that said retail space is not fully occupied, based upon the average occupancy during each year preceding the date on which payment is due, the amount of such payment shall be reduced $1.53 per square foot of unoccupied space, although in no event Shall the payment ever be less than the amount due for interest. The City has incorporated Scheme No. 9 into the reviseci Plans and Specifications for the Convention Center, Which will at Cityts expense provide 20,000 square feet of retail space in the Convention Center demised hereunder to the Developer. When the $400,000, plus accrued interest has been paid, and the Developer shall have paid its complete $5,700,000 contribution, no further contributions shall be required to be Made by Developer to City concerning Convention Center. Ownership of such furniture, fixtures and equipment purchased by the Developer shall remain in Developer and Developer shall use such furniture, fixtures and equipment in the Convention Center. 'MISCELLANEOUS. OUS. 19.1 Non -Discrimination. The Developer agrees it :;ill not discriminate upon the basis of race, color, creed, national origin, age or sex in the construction, sub -leasing, use, occupancy or operation of the Pretnises or the Improvements to be erected thereon, and that each contract, sub -lease or agreement with respect thereto shall specifically contain this provision. 19.2 Equal Opportunity Provision. (a) In the construction and operation of the Improvements neither Developer nor any contractor or manager employed by Developer shall discriminate al; tinst any etnploy ec or applicant for employment because of race, color, religion, age, se:•: or national origin, and they shall take affirmative action to ensure that applicants are employed, and that employes are treated during- dtihplbymetrt Without regard to their race, color, religion, age, Sep:, or national. origin, Such action shall include, but not be limited to, the following: ltnployrnent, 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 conspicuous places, available to employees and applicants for employment, notices to be provided by 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 labor union or representative of workers with which they, or any of them, have a collective bargaining agreement or other contract or understanding, a notice, to be provided by City, advising the labor union or 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 employment. Any contractor or sub -contractor shall comply with all provisions of Executive Order No. 112•16 of September 2,1, 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 City and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations and orders. 1 1 • • r t•tifiCation of i`lonscgregrateci I'trcilitic Developer C.Otifics thit it does not maintain or provide for its employees any segregated ftittitities 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. Developer certifies further that it will not tnointuin or provide for its employees any segregated facilities at any of its estubli;<hrnent,, and that it will not permit its employees to perform their services at any location, under its control, where segregated facilities are maintained. Developer agrees that a breach of this Certification is violation of the Equal Opportunity Clause of this Certification the terms "segregated facilities" thts 11'reement. As used in � means any waiting rooms, work areas, rest roorns and wash rooms, restaurants, and other eating areas, time clocks, locker rooms and othar storage or dressing areas, parting lots, drinking fountains, recreation or entcrtainrncrtt arena, transportation, 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. Developer further agrees that it will obtain 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. 19.4 Arbitration. (Deleted) 19.5 Right of Inspection. During the term of Allis Lease, 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 (C) months of the term hereof, City or its authorized agents may bring onto the I )eraiscd Premises such persons who are interested in purchasing or leaing the same as City rn:! y invite for the purpose of inspecting; the Demised Premises. 10,6 Access to premises. Prior to the cornmencerncnt of the tiiistrttetion, City shall permit representatives of the i)eveloper to have access to any part of the premises at all reasonable times for the purpose of ot)trainin;; data • tihd making. various tests concerning the Demised Premises necessary' to carry out the Agt'eernent. 19.7 Rcconnition of i�lortia;Iee 'Requirements. Notwithstanding • the provisions of this Lease and Agreement for Developrnent to the contrary, Developer and City recognize that construction and permanent mortgage financing lenders v:i11 impose certain requirements and conditions prior to funding their commitments which may not be totally consistent with the provisions hereof. Amon other things, it is recognized that lenders may require the separation of the lease and developmental provisions of this Agreement in order to produce a mortg igab1e lease v:hich insures lenders of a first lien pa:.ition. Acco-dingly, Developer and City agree that in such event each shall be obligated to accept changes which are commercially reasonable and consistent with the lending community industry standard, and agree to amend this Lease and Agreement to conform thereto. If Developer and City are unable to agree upon amendments which will conform to such requirements, Developer may thereupon elect to terminate this Lease and Agreement for Private Development without further liability to City. Upon such termination, City and Developer shall be released from all further liability to each other. 19.8 Right of First Refusal. If within five (:,) years from the date hereof City shall decide to develop additional facilities on the Dallas Park ilotel site, which site is more particularly described in Exhibit "E•", Developer shall have a .right, of first refusal to lease, construct and operate such facilities upon the, terms and conditions hereinafter set forth; (a) DeVeloper shall have such right of first refu7;a1 only it tit the time City decides to develop such additional facilities or receives a proposal to do so from a third party, the hotel to be constructed pursuant to this hease and Aeetnent has been constructed in accordance with the terms hereof and is being operated as a first-class hotel. (b) If City shall decide to develop such additional facilities or receives a proposal to do so from a third party, it shall give written notice of such determination or receipt to the Developer. (c) The terms and conditions upon which such additional facilities shall be leased, constructed and operated shall be as then agreed, but in the case of a proposal from a third party, shall not be less favorable to City than ■ ■ those proposed by any sijch third party. • (d) If City and Developer are unable to agree upon terms and conditions for construction and operation of such additional facilities within six (6) months after receipt of the foregoing; notice from City, City shall he free to contract with any other party for construction and operation of such additional facilities, provided that the terms and conditions of such contract shall not be less favorable to City than the terms and conditions last offered to City by Developer. (e) Developer's shall have no rights under Section 19.8 after five (5) years from the date hereof. 19.9 Pre-Openin7. Developer agrees to make available for pre - opening, pre -promotion and pre -selling; expenses the sum of Two Hundred Fifty Thousand ($250,000.00) Dollars as its share of such e:. pense in promoting the Iiotel and Convention Center: it is recognhted that substantial additional pre -opening expenses will be required. A mutually acceptable budget therefor shall be prepared ■IIIiiiii■ii uuIII ■ by beVelopeit' its Hotel Manager, and the City. The City shall be required to ftmd tt1Ch bird et in excess of the $250,000.00 and not less than a total of $500,000.00. It is understood that the 13uclget for pre -opening; expense shill be 00)000,00 unless otherwise approved by The Commission of the City of i.iiarni. 19.10 Participation in Civic Functions at Convention Center. IDeveloper agrees that it shall annually make available matching; funds with City or City's designee, an amount not to exceed $100,000.00 for the sponsoring of cultural, civic or other events at the Convention Center which will result in the promotion of the City, the Convention Center and the Ilotel. 19.11 Lease Renewal. This Lease and Agreetncnt for Development may be renewed for an adc itional forty-five (45) years after the expiration of the initial term hereof, provided the Developer is not then in default, upon the following conditions: (a) In consideration of such renewal of this Lease and Agreement, the Developer agrees to extensively refurbish, update, and modernize the Fixtures, Furnishing and Equipment of the Hotel and IIotel Public Areas within one year after the commencement of such renewable term or show evidence that Developer has done stone before the commencement of such renewable term. The provisions of Section 19.11 (a) providing for Developer to extensively refurbish, update and modernize the Developer's furniture, fixtures and equipment does not include any obligation on the part of the Developer to refurnish, update and/or modernize any part of the items furnished by the Developer pursuant to Section 13. (b) In refinancin'c; the Improvements for purposes of refurbishing as required in aforementioned section, the City talc] the Developer shall renegotiate the financial terms of this Agreement with the intent of ineteasihu the ltent to the City and increasing the City's share of Net Operutinit Ptbfit as Performance ltent. 19.12 Coordination of Maintenance and 1Itepairs. City and Developer expressly recognize that in the fulfillment of their respective obligations to maintain and repair the Convention Center and the llotel, certain functions and responsibilities will overlap by virtue of the joint use of machinery and equipment. Accordingly, it is understood that a more detailed schedule of maintenance responsibility shall provide for the City making the determination of disputed areas of responsibility, with the Developer retaining the right to contest such determination and seek reimbursement^ but only after such repair or maintenance is completed. 19.13 (Deleted) 19.14 Notices. All notices, demands or other communications which may be or are required to be given by either party to the other in writing shall be deemed given and delivered if delivered in certified mail, postage prepaid and addressed: TO DEVELOPER Miami Center Associates, Ltd. c/o Worsham 13ros. Co. 1401 W. Paces Ferry Road, N.W. Suite 2-E Atlanta, Georgia 30327 person or if sent by registered or TO CITY City of i.liami City Hall 3500 Pan American Drive Miami, Florida 33133 Attention: City Manager The addresses to which notice is to be sent may he changed from time 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 address given. Notice shall be deemed given, if notice is by mail, 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. i •111•11111111111111111111•11111ENINN 16,15 Provisions of taw Deemed Included. Each and every provision f hate and Vederal law required to be included in municipal agreements shall bit deetned to be included herein, and this Agreement shall be read, construed and enforced as though the same were included herein. If, through mistake, inadvertence or otherwise, any such provision or clause is not included herein or is incorrectly included herein, the, upon application of either party hereto, this Agreement shall forthwith be amended to include the same or to correct the inclusions of the same. 19.16 How Agreement Affected by Provisions field Invalid. If any provison 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. 19.17 Atmlieahle Law and Construction. The laws of the State of Florida in which the premises are located shall govern the validity, performance and enforcement 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 delivery thereof by City and Developer. All negotiations, considerations, representations and understandings between the parties are merged herein and may be modified or altered only by agreement in writing between the parties. 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 City and Ueveloper and the Lease, together with all of the terms and provisions hereof, shall not be deemed to have been prepared by either City or Developer, but by t,nth equally. 19.18 Amenclrn, nts. This Agreement !nay be amended only by .t'tittc:n document, al,l,rovecl by the Commission of the City or Miami and dull►, ■ ■ ■ ■ ■ ekeeutcd by the parties hereto or their assignees, evidencing the mutual r►greerncft tjt The parties hereto to such amendment. 19.19 Clenrler and Number. Words of any gender used is this tease Shall be held to include any other gender, rind words in the singular number sh;i11 be held to include the plural (and vice -versa), when the sense requires. 19.20 Award of Contract. The Developer warrants that he has not employed or retained any company or persons to solicit this Agreement, that he has not paid or agreed to pay any company or persons any fee, commission, percentage, brokerage fee, or gifts or any other con'_=ide.rations contingent upon or resulting from the award or making of this Agreement. The Developer also warrants that to the best of his 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 thi :.A;reernent 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 he shall fully comply in all respects with the terms of said clause. 19.21 .lort <e- eab1e Leasehold. It is the specific intention of the parties hereto to create a Mortgageable Lea Behold Estate which is insurable by a nationally recognized title insurance company subject to its standard exceptions. To the extent an insurable leasehold estate has not been created hereunder, City and Developer agree to :upend provi ;ions hereof in order to make such leasehold estate acceptable for title insurance as above. 19.22 Mutual Easements. Developer and City each grant to the other, ::ase pent' through the necessary portions of .the Demised Preriiises and i • ■ fi Cepted Premises to reasonably assure access to and from the respective portions tit the property owned and/or operated by each Party, and to provide support for the improvements of each Party, and to accommodate the construction, repair and replacement of said improvements, including provisons for all utility lines and related services. All easments shall be located, identified and described by instrument in recordable form upon completion of construction. 10.23 Public Park and River Walk. The premises abuts a public park and river walk area, and the City agrees that the Plans and Specifications for such public park and river walk shall be completed at the same time the Final Plans for the Convention Center are completed by the City, and said Plans for the public park and river :walk shall be subject to Developer's reasonable approval. The City agrees that the public park and river walk shall be used only for purposes during the entire term of the Lease and Agreement, and the City further agrees to complete the construction thereof in accordance with Section 8.7 in timely concert with Developer's completion of construction of the Developer's Improvements and to thereafter maintain the same in a first-class manner. 19.24 Development of Patricia ITotel Site. Should the City develop plans for the improvement and utilization of the former Patricia llotcl site, the Developer and its mortgagees shall have the reasonable ri;ht of approval of the design concept to determine that the same is compatible with the present Project and does not in any manner interfer with or harm the same, which right of approval will not be arbitrarily or unreasonably exercised. 19.25 flights of Developer to University's In the event that the University's rights to i Premises. Portions of Excepted use its portion of the Excepted Premises is terminated, then City agrees that if such portion of the : eeptecl 1'retriises is not going to be retained and operated by City in the State ItI thtter as is applicable to City's other portions of the t,xctptcd premises, Developer shall have the first right to use such space under an agreement to be reasonably negotiated between City and Developer. Further, and/or in trdditon, in the above event, if the right to use the portion of the Excepted Premises originally leased to University is not transferred to, or being exercised by, the Developer, then the Developer shall have the right to approve the use of such space by the City or other party who may succeed to the interest of the City with respect thereto, which right will not be arbitrarily or unreasonably exercised. The City will not object to any agreernent reached directly between Developer and University pursuant to which the University may permit Developer to use Univer:;ity's portion of Excepted Premises from time to time. 19.26 Approval of University's Agreement by Developer.The Agreement between City and University dated April 1, 1977, and Letter Agreement between them dated April 10, 1978, shall only be modified hereafter by City with the written approval of the Developer, and in fact said Agreement and Letter Agreement shall be to the satisfaction of City, Developer and University to incorporate the provisions of Section 8.6 pertaining to University's portion of the Excepted Premises. 19.27 Clarification of Intent. The fee simple title in and to the Land • demised hereunder is vested in City, and any mortgage by Developer will not extend to said fee simple. title, but only to the interest of the Developer, and the right of Developer to use the Land, under and in pursuance of the Lease and Agret�reent. The Lease and Agreement shall be further amended to identify •ri_ ..•__.. r rC;ty and Developer when the revis►ons thereof have ;t c...0(1 upon :Intl r►pi►, r,vrd by theta. • • At an appropriate time; upon request or City or Developer, tht tine and Agreeh ent and any future Amendment which may be made to the Lease and Agreement shall be reduced to a single Instrurnent, all to the end that the trevehants, obligations and undertakings of City and Developer shall repose in a Single Document. This Lease may not be amended without prior written consent or the holder of the first mortgage lien on the Premises which consent shall not be unreasonably withheld. This instrument is a composite of Lease and Agreement for Private Development dated April 20, 1977, and Amendment No. 1 thereto between the parties, as previously authorized by City :rnd approved by Developer, and this instrument stands as the ::ement of' the parties, and ;:ubstitution for, and in lieu of, the previous Lease and Agreement for private development and Amendment No. 1 thereto, and this instrument contains the full understanding and agreement of the parties. 19.28 Obligations of City. The covenants of the City contained in this Lease shall constitute lawful obligations of the City and the cost of performing the City's undertakings shall be paid from such funds of the City as may he lawfully available therefor exclusive of ad valorem property tax revenues not expressly approved for use herein pursuant to referendum. IN WITNESS WHEREOF, the parties hereto have set their hands as of the day and year first above written. ATTEST: 'I'Iil. CITY OF MIAltlI (a municipal corporation of the State of Florida) . City Mana;;er ATTEsT! MIAMI CENTER ASSOCIATES, LTD, A Morkla Limited Partnership MIAMI CENTER ASSOCIATES, INC. General Partner APPRoVED AS TO FOitNI AND APPROVED AS TO CONTENT CPR.nECTNESS George v Knox, City Attorney thanes J. Connolly, Project Director Director Convention Center A • i 1 tXtlihttstbLEA811, J1 rt ts etttott 1DP,MISED PREMISES 1 EXCEPTED PREMISES 1 DEVELOPER'S DEVELOPMENT PLAN 5.2 CITY'S DEVELOPMENT PLAN 8. 1 DALLAS PARK SITE •.. i II 1 1 n NAME OF CANDIDATE III GORDON GIBSON • 11111111 FERRE ' I I 11 11111110111 1„ REB O S O PLUM!MER!