HomeMy WebLinkAboutexhibits A-H.• . . . ..'=1CtiuslYsi��s.�'4'ias�6!'11'++'4Arr.,. a: _,:.r.yi�t
LEGAL DESCRIPTION
POINCIANA VILLAGE PHASE 1
Being a tract or parcel of land containing 1.91852 acres ;83,571
block tuof
ock46 Nof" .L. Knowlton4
Subdi1
visian"According416 totherplat
thereof recorded in plat boo!t•g, page 41 of the public records of
Dade County, Florida. Also being a part of loth 1 thra 8 to
inelude a portion of a 20 foot right of way according to the plat
of George C. Boilers Subdivision thereof recorded in plat book 1,
page 16 of the public records of Dade County, Florida & being more
particularly deaaribed by metes and bounds as follows:
BEGINNING at a point of intersection of the North Right of Way line
of NW 7th street and the East Right OE Way line of Nw 3rd Av.,,nue,
said point being 10.00 f8et Easterly from the.Southwest corner of
lot 11 of said A.L. Xnowlton Subdivision"; theme Northerly along
said East Right of Way of NW 3r1 Avenue, a distance of 117.17 feet
to a corner; thenCe Easterly leaving said East Right of Way of Nei
3rd Avenue and parallel with said North Right of Way of NW 7th
Street, a distance of 1 30.33 feet to a corner: thence Northerly
p3
00.feetlto a corner r to said ithence Eaht of sterlof NW 7th Street, a distance of
Way of Nw 7th Street, a distance of 180.83yrfeet ltoidhcosaidrnerR;ithht of
enc.e
'Yortherly parallel with the Right of Way of NW 2nd Avenue, e
distance of 77.00 feet to a corner; thence Easterly perpendicular
to said NW 2411 A712oLle, A distance of 19.O0 feet to a co:n.sr; thinoe
*northerly parallel with said Right of Way of Nw 2nd Avenue, a
distance of 80.27 feet to a corner, the SAM•a being in tha.8o'a"h Rit 4. Way lineof
NW 8th
Street; thence easterly +along said
South
8 .:Right of Way8..h Street
the same being at a i 81rsec_e of said feat
South Right of l,iy line of NW 8thpstreetftithaarweatiRight oflWay
line of said NW 211 Avenue, thence Southerly along maid West Right
of Way in of NW 2nd Avenue, a distance of 287.43 feet to a
corner, the same being at a
Right of+nosy lino of N. 2 PontPo-nt of intersection cf said Weft
of Ww 7th Street; thence Westerlue along on ss said ertht`.AvndNNort tot Right of Way 14n POINT the
lute of NN 7th Street a ae of 477.65 h Right of ay
BEGINNING of the tractherein describedcortainin.within theseF
Oates and Bounds 1.91852 acres (83,57) sa. Ft.) of lard.
EXHIBIT "A'
EXHIBIT "B"
SAWYER'S WALK PROJECT
:LEGAL DESCRIPTION
Lots 1 through 12, Inclusive, Block 45, NORTH CITY OF MIAMI, according to the Plat thereof, as recorded
in Plat Book "B", page 41 of the Public Records of Miami -Dade County, Florida,
Lots 1 through 20, ' inclusive, Block 55, NORTH CITY OF MIAMI, according to the Plat thereof, a5 recorded
In Plat Book "B", page 41 of the Public Records of.Miami-Dade County, Florida.
Lots 1 through 12, inclusive, Block 55, NORTH CITY OF MIAMI,. according to the Plat thereof, as recorded
In Plat Book "8", page 41 of the Public Records of Miami -Dade County, Florida.
EXHIBIT "C"
LtQAt. DCscRipriart
POINCtA`IA VILLnCE PHASE It
atinR a tract or psrc41 of land containing 1.21)53 accts
53A733cSq. Nam.) out of lots 4 thru 12 and toe 16 and
! A.L. Knowlton Subdivision according to
tho. plat thereof recorded In plot book a, page 41 of thv
public records of Dad. County, Florida. Also being a part
of lout 6 and 7 to include t potties of s. 20 tact :tight of
Way According to the plat of a.orge C. ao:lay Subdivision-
thsrtot recorded in plat book 1,
records of Dalt County, Florida bitnqport4particularly
d•scribsd by metes and bounds as follows:-
fatdlNtl>~KC rt a point of intertecttol of the test Right Of
key Lin. on vs,/ 3r3 Avenue and the So.r'th /tight of Vey lino
at NN Sth 'Streat, said point being 10.03' lest easterly and
12.50 fast Southerly lr.sm the Northwrt corner of tee 10
of said "AL. Xnowlton Svbdivisiol', th.noo Easterly
along said cut Right of way line of KW4th Street ,
distance of 340.17 fret to a corner; thence Southerly
la*Wing said South Right of Way lira. of :Of ath Street and
parallel with the ►test Right of tray lint of NW
i
a distenoe of 00.27 fast to is corner; thenceitiestorly
Pdrpendioular to said Right of Way of Hw 2nd Avenue, a
dietanoe of /$.00 feet to • corner! thence Southerly
arallel with said Right of Way of VW 2nd pAvenue, a
dietsnce of 77.00 feet to a corner; thanes Westerly
parallel with th. Right of Way 0 ;' w 7th Streetseets
diatanct of 130.83 feet to t :orrrtri thence Southerly
psrpandicular to said Right of way of !NW 1th Street. a
distance of 13.00 feet to a corner; thane. Westerly
Parallel vith said Might of Ysy of H4 7th Street, a
distance of 130,33 feet to a corner, tht soma baing In the
twit Right of Way lino of KW 3rd Avenw; thane Northerly along said teat Right of WI of Nw 3:1 Avenue, a dietenca
of 170.2e feet to the P� tar or SCOINSING of the tract
herein -described :ontelnipg within those s,e;es 1, bounds
1..233$3 acres (53,733 Sq. rt.) of lard.
EXHIBIT D
AMENDED AND RESTATED SOUTHEAST OVERTOWN/PARK WEST
LEASE AND DEVELOPMENT AGREEMENT
THIS LEASE (hereinafter referred to as the "Lease"), made this
day of , 200_, by and between SAWYER'S WALK,
LTD., a Florida limited partnership (hereinafter referred to as "Developer"),
and the SOUTHEAST OVERTOWN/PARK WEST COMMUNITY
REDEVELOPMENT AGENCY, a public agency and body corporate created
pursuant to Section 163.356, Florida Statutes (hereinafter referred to as "the
CRA").
RECITALS
A. The Southeast Overtown/Park West Project area was designated
as community redevelopment area (the "CRA Redevelopment Area") by
Miami -Dade County, a political subdivision of the State of Florida (the
"County"). A redevelopment plan was approved by the Commissioners of the
City of Miami, a municipal corporation (the "City") and the Commissioners of
the County with certain redevelopment authority granted by the County to
the City for project implementation. The City invited interested parties to
submit proposals for the development of residential and commercial
structures on properties in the vicinity of the Overtown Transit Station in a
portion of the CRA Redevelopment Area.
B. In response to requests for proposals issued by the City, Indian
River Investments of Miami, Inc., a Florida corporation ("Indian River"),
acting in the capacity of general partner on behalf of Poinciana Village of
Miami, Ltd. ("Poinciana"), was selected as the "developer" with respect to the
development of that certain real property described on Exhibit "A" attached
hereto and made a part hereof (the "Poinciana Village Project"). Indian
Subject to conforming to the terms of the Settlement Agreement within 30
days of the Effective Date of the Settlement Agreement.
River, as general partner on behalf of Poinciana, and the City entered into
that certain Southeast Overtown/Park West Lease and Development
Agreement dated June 15, 1988 (the "Original Lease"), as amended by
Amendment No. 1 dated February 17, 1989 ("Amendment No. 1"), as
amended by Amendment No. 2 dated July 13, 1989 ("Amendment No. 2"), and
as amended by Amendment No. 3 dated January 11, 1990 ("Amendment No.
3").
C. In 1990, the City issued a request for proposals for the
development of Blocks 45, 55, and 56 in the CRA Redevelopment Area which
real property is more particularly described on Exhibit "B" attached hereto
and made a part hereof (the "Sawyer's Walk Project"). Developer submitted a
proposal dated January 18, 1991, and, by City of Miami Resolution No. 91-
509 (the "Sawyer's Walk Resolution"), the City selected Developer as the
developer of the Sawyer's Walk Project, subject to complying with the terms
and conditions of the Sawyer's Walk Resolution.
D. On or about January of 1996, the City transferred authority to
implement projects within the CRA Redevelopment Area to the CRA. The
City conveyed all of its right, title and interest in the Poinciana Village
Project and the Sawyer's Walk Project, together with other lands, to the CRA
by Warranty Deed dated January 9, 1996, and recorded January 17, 1996, in
Official Records Book 17064, at Page 152 of the Public Records of Miami -
Dade County, Florida (the "CRA Warranty Deed"). The City assigned to the
CRA all of the City's right, title and interest with respect to all leases
pertaining to the real property conveyed by the CRA Warranty Deed,
including the Original Lease, by virtue of the Assignment of Leases dated
January 9, 1996, and recorded January 17, 1996 in Official Records Book
17064, at Page 208 of the Public Records of Miami -Dade County, Florida.
2
E. The CRA and Poinciana executed an Amendment dated as of
September 23, 1998, and recorded October 14, 1998, in Official Records Book
18312, at Page 444 of the Public Records of Miami -Dade County, Florida (the
"Poinciana Amendment"), amending certain terms and provisions of the
Original Lease with respect to the Poinciana Village Project (the Original
Lease, as amended by Amendment No. 1, Amendment No. 2, Amendment No.
3, and the Poinciana Amendment, are collectively referred to as the
"Poinciana Lease").
F. Poinciana has developed Phase I of the Poinciana Village
Project, as defined in the Poinciana Lease, consisting of sixty-four (64)
residential condominium units in two (2) buildings of four (4) stories each.
The Poinciana Lease provides that Poinciana is to develop ninety-one (91)
condominium units or rental apartments in a single low-rise building and/or
a single building of ten (10) to twelve (12) floors as a hotel, extended stay
facility, or any combination thereof, containing approximately one hundred
twenty-five (125) guest rooms as Phase II, as defined in the Poinciana Lease,
which is to be developed on that certain real property more particularly
described on Exhibit "C" attached hereto ("Phase II").
G. Disputes have arisen between the CRA and Poinciana with
respect to the development of Phase II and the obligation of the CRA to add
Phase II to the Poinciana Lease as contemplated under the Poinciana Lease.
As a result of these disputes, the CRA filed a complaint for ejectment and
quiet title with respect to Phase II styled Southeast Overtown/Park West
Community Development Agency vs. Poinciana Village of Miami. Ltd., Case
No. 02-06846 CA 9 pending in the Circuit Court in and for Miami -Dade
County, Florida and Poinciana has filed counterclaims against the CRA and
the City in connection with the Poinciana Village Project (collectively the
"Poinciana Litigation").
3
H, Disputes have arisen between the CRA and Developer with
respect to the obligation of the CRA to enter into a lease with Developer with
respect to the Sawyer's Walk Project. The CRA claims that the requirements
of the Sawyer's Walk Resolution have not been satisfied. Developer claims
that the requirements of the Sawyer's Walk Resolution have been satisfied
and that the CRA had agreed to add the Sawyer's Walk Project to the
Poinciana Lease. As a result of these disputes, the City and the CRA filed a
declaratory judgment action styled The City of Miami vs. Sawyer's Walk,
Ltd., Case No. 00-28860 CA 9 in the Circuit Court in and for Miami -Dade
County, Florida and Developer has filed counterclaims against the CRA and
the City in connection with the Sawyer's Walk Project (collectively the
"Sawyer's Walk Litigation").
�. The City, the CRA, Poinciana and Developer have agreed to
settle the Poinciana Litigation and the Sawyer's Walk Litigation, including
without limitation the counterclaims filed in connection therewith, and enter
into this Lease.
J. Poinciana has assigned all of its right, title and interest under
the Poinciana Lease with respect to Phase II and all of its right, title and
interest in the Sawyer's Walk Project to the Developer.
K. Developer and the CRA desire to modify and . amend the terms
and provisions of the Poinciana Lease and incorporate the Sawyer's Walk
Project into the Poinciana Lease, as hereinafter provided, in accordance with
the terms of the settlement of the Poinciana Litigation and the Sawyer's
Walk Litigation which settlement was approved by Court Order dated
entered in the Poinciana Litigation and by Court Order
dated entered in the Sawyer's Walk Litigation (the
"Settlement Agreement").
4
NOW THEREFORE, for and in consideration of the foregoing and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the terms and provisions of the Poinciana Lease are
hereby amended and restated in their entirety with respect to Phase II and
amended to include the Sawyer's Walk Project and to read as follows:
ARTICLE I
EXHIBITS AND DEFINITIONS
Section 1.1 Exhibits. Attached hereto and forming a part of this
Lease are the following Exhibits:
Exhibit "A" — Legal Description of Poinciana Project
Exhibit "B" — Legal Description of Sawyer's Walk Project
Exhibit "C" — Legal Description of Phase II of Poinciana Project
Exhibit "D" — Legal Description of Land
Exhibit "E" — Permitted Exceptions
Exhibit "F" — Schedule of Annual Basic Rental
Exhibit "G" — Development Plan
Exhibit "H"" — Revert Parcel Legal Description
Exhibit "I" — County Settlement
Exhibit "J" — Affordable Units
Exhibit "K" — Overtown Area
Exhibit "L" — First Source Hiring Agreement
Exhibit "M" — STE Program
Exhibit "N" — PMTE Program
Exhibit "0" - Overtown Project Area
Section 1,2 Defined Terms. As used herein, the term:
"Acceptable Developer Agreement" has the meaning ascribed to it in
Section 9.1(c)(iv).
5
"Acceptable Developer" means an entity possessing the experience,
qualifications, good reputation, financial resources and adequate personnel
necessary for the proper performance of all of Developer's obligations under
this Lease in a manner consistent with the quality, reputation and economic
viability of the Project, including (without limitation) the obligation of
Annual Base Rental theretofore payable by Developer under this Lease.
"Acceptable Purchaser" has the meaning ascribed to it in
Section 8.3(d).
"Additional Rental" means any and all payments required of Developer
to the CRA by the terms of this Lease other than Rental.
"Affordable Housing Reports" has the meaning ascribed to it in
Section 4.8
"Affordable Housing Requirement" has the' meaning ascribed to it in
Section 4.1.
"Affordable Units" has the meaning ascribed to it in Section 4.1.
"Annual Basic Rental" has the meaning ascribed to it in Section 2.8(a).
"Block(s)" means those City Blocks which are comprise the Land which
are identified on the Development Plan.
"CBO" has the meaning ascribed to it in Section 4.11
"Certificate of Completion" has the meaning ascribed to it in
Section 3.10.
"Challenge" has the meaning ascribed to it in Section 22.13
"City" means the City of Miami.
"City Attorney" means the City Attorney for the City of Miami, acting
as general counsel to the CRA.
"Clean Up" has the meaning ascribed to it in Section 20.1.(g).
"Condominium Documents" has the meaning ascribed to it in
Section 7.2.
6
"Condominium Owner" means any person, firm, corporation or other
legal entity using or occupying or entitled to use or occupy the Developer
Improvements upon purchasing a residential unit.
"Construction Budget" shall have the meaning ascribed to it in
Section 3.6.2.
"Construction Contract" has the meaning ascribed to it in
Section 3.6.3.
"Construction Plans" has the meaning ascribed to it in Section 3.6.1.
"Construction Schedule" has the meaning ascribed to it in
Section 3.6.4.
"Costs" has the meaning ascribed to it in Section 20.1(d).
"County Litigation" has the meaning ascribed to it in Section 3.16.1.
"County Settlement" has the meaning ascribed to it in Section 3.16.1
"County" has the meaning ascribed to it in Recital A.
"County" means Miami -Dade County, a political subdivision of the
State of Florida.
"CRA Board" shall mean the Board of Directors of the CRA.
"CRA Redevelopment Area" has the meaning ascribed to it in
Recital A.
"CRA" means the Southeast Overtown/Park West Community
Redevelopment Agency.
"Default Rate" has the meaning ascribed to it in subparagraph (b) of
Section 2.5.
"Developer Improvements" means all improvements constructed on the
Land by Developer pursuant to the Development Plan.
"Developer Utility Easement" has the meaning ascribed to it in the
Section 2.6(b).
"Developer" has the meaning Sawyer's Walk, Ltd., a Florida limited
partnership, and, except as otherwise expressly limited elsewhere in this
7
Lease, all references to the Developer shall include the successors and
assigns of the Developer.
"Development Plan" has the meaning ascribed to it in Section 3.1.
"Effective Date" means the date this Lease is last executed by
Developer and the CRA.
"Environment" has the meaning ascribed to it in Section 20.1(c).
"Environmental Complaint" has the meaning ascribed to it. in
Section 20.5.
"Environmental Laws" has the meaning ascribed to it in
Section 20.1(b).
"Equity Requirement" shall have the meaning ascribed to it in
Section 3.6.7.
"Event of Default" has the meaning ascribed' to it in Section 11.1.
"Event of the CRA's Default" has the meaning ascribed to it in
Section 11.3(a).
"Executive Director" means the Executive Director of the CRA.
"Financing Sublease" has the meaning ascribed to it in the definition of
"Sale-Subleaseback Transaction."
"First Source Hiring Agreement" has the meaning ascribed to it in
Section 6.1.
"Hazardous Materials" has the meaning ascribed to it in Section 20.1.
"HOME Funds" has the meaning ascribed to it in Section 4.1.
"Incremental TIF" has the meaning ascribed to it in Section 10.1.
"Indemnified Matters" has the meaning ascribed to it in Section 21.1.
"Inspections" has the meaning ascribed to it in Section 2.11.1.
"Insurance Trustee" has the meaning ascribed to it in Section
13.8(a)(ii).
"Land" means those parcels of real property described on Exhibit "D"
attached hereto and made a part hereof.
8
"Lease" means this Lease which amends and restates, in its entirety,
the Poinciana Lease, and as may be modified from time to time.
"Leased Property" all of the Land leased to Developer pursuant to this
Lease, and all rights and interests appurtenant thereto.
"Leasehold Mortgage" has the meaning ascribed to it in Section 9.1(b).
"Lender Landlord" means a lender, and any successor, assignee,
transferred or designee of such lender, to which, in connection with the
providing of financing to the Developer under this Lease, Developer's
leasehold interest in this Lease has been conveyed and which has thereafter
entered into a Financing Sublease with Developer.
"Lender/Investor" has the meaning ascribed to it Section 9.1(b).
"Lender" shall have the meaning ascribed to it in Section 9.1(b).
"Live/Work Units" means a commercial unit'which is sold bundled with
a residential unit.
"Loan Commitment" shall have the meaning ascribed to it in
Section 3.6.7.
"Minority Participation Reports" has the meaning ascribed to it in
Section 5.3.
"Minority Participation Reports" has the meaning ascribed to it in
Section 5.3.
"Minority Participation Requirements" has the meaning ascribed to it
in Section 5.2.
"MUSP" has the meaning ascribed to it in Article 17 of
Ordinance 11000, as amended, of the Zoning Ordinance of the City of Miami,
Florida.
"Non -Compliance Funds" has the meaning ascribed to it in Section 5.4.
"Non -Compliance Fee" has the meaning ascribed to it in Section 3.11.
"Overtown Area" has the meaning ascribed to it in Section 4.5.
"Overtown Project Area" has the meaning ascribed to it in Section 10.1.
"Overtown Residents" has the meaning ascribed to it in Section 4.11.
9
"Owner" has the meaning ascribed to it in Section 8.1(b).
"Payment and Performance Bonds" shall have the meaning ascribed to
it in Section 3.6.5.
"Permitted Exceptions" means those existing title matters which
Developer has accepted as exceptions to the title to all or any portion of the
Leased Property which are described on Exhibit "E" attached hereto.
"Phase" means a portion of the Project to be developed at the same
time by the Developer as identified on the Development Plan.
"Phase I" means the first Phase of the Project as identified on the
Development Plan.
"Phase Project Schedule" has the meaning ascribed to it in Section 3.1,
"Project Schedule" has the meaning ascribed to it in Section 3.1.
"Project" means the improvements to be 'constructed by Developer
consisting of approximately one thousand fifty (1,050) residential units on the
Real Property (collectively, the "Residential Units"), consisting of apartments,
townhouses, Lofts, live/work units (i.e., commercial units which are bundled
with a residential unit) (the "Live/Work Units"), which residential units will
be constructed in mid -rise structures and high-rise structures (individually,
"Residential Unit" and collectively the "Residential Units") and
approximately seventy-five thousand (75,000) square feet of retail and office
space which will be developed in accordance with the Development Plan.
"PTME Program" has the meaning ascribed to it in Section 6.3.
"Public Charges" has the meaning ascribed to it in Section 2.9.
"Reconstruction Work" has the meaning ascribed to it in
Section 13.8(b).
"Related Parties" has the meaning ascribed to it in Section 20.2.
"Release" has the meaning ascribed to it in Section 20.1(e).
"Rent Commencement Date" has the meaning ascribed to it in
Section 2.8.
10
"Rental Year" means a calendar year consisting of twelve (12)
consecutive calendar months beginning on January 1st and ending on
December 31st of each year of this Lease. The first Rental Year during the
term of this Lease shall commence on the Lease Commencement Date and
end on December 31st of the same calendar year. Any portion of the term
remaining after the end of the last full Rental Year constitutes the final
Rental Year, and Rental shall be apportioned therefor.
"Rental" has the meaning ascribed to it in Section 2.8(a).
"Restrictive Covenants" has the meaning ascribed to it in Section 2.5.
"Reverter Property" has the meaning ascribed to it in Section 3.16.1.
"Sale-Subleaseback Transaction" means Developer's sale to a
Lender/Landlord of all or a substantial portion of Developer's interest in this
Lease, and the subsequent execution of a sublease ("Financing Sublease")
between Lender/Landlord and Developer.
"Section," "subsection," "paragraph," "subparagraph," "clause," or
"subclause" followed by a number or letter means the section, subsection,
paragraph, subparagraph, clause or subclause of this Lease so designated.
"Settlement Payment" means the amounts paid by Developer to
Poinciana and the former past partners of Developer to resolve the Poinciana
Village Litigation and the Sawyer's Walk Litigation pursuant to that
Agreement to Form Limited Partnership dated April 21, 2003, as amended,
which amount shall not exceed Six Million Five Hundred Thousand and
No/100 Dollars ($6,500,000.00), which was to be paid as follows: (i) an initial
payment of Four Million, Four Hundred Thousand and 00/100 Dollars
($4,400,000.00) upon the execution of this Lease (the "Initial Settlement
Payment") and (ii) four (4) annual payments of Five Hundred Twenty-five
Thousand and 00/100 Dollars ($525,000.00), which payments shall commence
one (1) year from the Initial Settlement Payment.
"SHIP Funds" has the meaning ascribed to it in Section 4.1.
"STE Program" has the meaning ascribed to it in Section 6.2.
11
"Sublease" means any lease, sublease, license or other agreement by
which Developer or any person or other entity claiming under Developer
(including, without limitation, a subtenant or sublicensee) demises, leases,
subleases, licenses or sublicenses to or permits the use or occupancy by
another person or entity of any part of the Leased Property and Developer
Improvements.
"Subsidized Units" has the meaning ascribed to it in Section 4.2.
"Subsidized Units Restriction" has the meaning ascribed to it in
Section 4.2.
"Subtenant" means any person, firm, corporation or other legal entity
using or occupying or entitled to use or occupy any part of the Leased
Property or the Developer Improvements under a Sublease.
"Surtax Funds" has the meaning ascribed to it in Section 4.1.
"Term" has the meaning ascribed to it in Section 2.3.
"Termination Date" has the meaning ascribed to it in Section 2.3.
"Threat of Release" has the meaning ascribed to it in Section 20.1(f).
"Transfer" has the meaning ascribed to it in Section 8.1(a).
"Unavoidable Delay" has the meaning ascribed to it in Section 11.4.
"WASA" has the meaning ascribed to it in Section 3.13.
ARTICLE II
GENERAL TERMS OF LEASE OF LEASED PROPERTY
Section 2.1 Lease of Leased Property to Developer. Subject to the
conditions set forth in this Lease, to the payment of Rental provided herein,
and the performance of the parties hereto of the duties and obligations on the
part of each to be performed hereunder:
Section 2.2 Premises. The CRA demises and leases to Developer, and
Developer takes and hires from the CRA, all of the Leased Property, subject
to the Permitted Exceptions and the restrictions, conditions, covenants and
12
easements hereinafter mentioned, reserved or granted, for the construction of
Developer Improvements.
Section 2.3 Term. To have and to hold the Leased Property for a term
of years (the "Term") commencing on the Effective Date of this Lease and
termination on July 14, 2087 (the "Termination Date"), unless sooner
terminated as herein provided.
Section 2.4 Possession of Leased Property. The CRA shall deliver
possession of the Leased Property to Developer, and Developer shall take
immediate possession thereof upon the Effective Date of this Lease.
Section 2.5 Restrictive Covenants. The restrictive covenants
contained in this Section 2.5 (the "Restrictive Covenants") are intended and
designed to bind the Developer and the CRA, and their respective successors
and assigns, and bind upon and run with the Leased Property throughout the
entire term of this Lease, including any new lease executed pursuant to the
provisions of Section 9.1(c)(ix). The Developer and the CRA recognize,
however, that the development and operation of the Leased Property and the
Developer Improvements in a manner which is in the best interests of both
parties may from time to time require the confirmation, clarification,
amplification, or elaboration of this Lease in order to deal adequately with
circumstances which may not now be foreseen or anticipated by the parties.
The parties reserve unto themselves the right to enter into such interpretive,
implementing or confirmatory agreements from time to time as they may
deem necessary or desirable for any such purpose without obtaining the
consent or approval of any person or entity not a party to this Lease except as
may be expressly otherwise provided in this Lease or by law:
(a) Use Prohibitions of the Leased Property. The Leased
Property shall not be used for the following:
(i) Any unlawful or illegal business, use or purpose, or
for any business, use or purpose which is immoral or disreputable (including,
without limitation, "adult entertainment establishments") or extra-
13
hazardous, or in such manner as to constitute a nuisance of any kind (public
or private), or for any purpose or in any way in violation of the certificates of
occupancy, the MUSP or other similar approvals of applicable governmental
authorities, or the Development Plan, as same may be amended from time to
time, pursuant to the terms of this Lease.
(b) No Discrimination. No covenant, lease, agreement,
conveyance or other instrument shall be affected or executed by Developer, or
any of its successors or assigns, whereby the Leased Property or any portion
thereof is restricted by Developer, or any successor in interest, upon the basis
of race, color, religion, sex, national origin or handicap in the sale, lease, use
or occupancy thereof. Developer will comply with all applicable state and
local laws, in effect from time to time, prohibiting discrimination or
segregation by reason of race, color, religion, sex, national origin or handicap
in the sale, lease or occupancy of the Leased Property.
(c) Permitted Uses for Leased Property. The only uses
permitted on the Leased Property are residential, supporting commercial and
general commercial to be developed on the Leased Property pursuant to the
terms of the Development Plan, as same may be amended from time to time,
and which are consistent with the governmental approvals and the MUSP.
(d) Enforceability. It is intended and agreed hereby that the
restrictive covenants contained in this Section 2.5 shall be binding upon the
CRA and the Developer, their successors and assigns, and shallconstitute
covenants running with the land for the Term of this Lease, and shall be for
the benefit and in favor of, and enforceable by the CRA.
Section 2.6 Easements. The following easements presently exist or
are hereby granted:
(a) Existing_ Easements. There are no existing easements on
the Leased Property except for those which have previously been accepted by
the Developer as Permitted Exceptions.
14
(b) Easements Granted to Developer. The CRA grants unto
Developer, its successors and assigns the non-exclusive right and easement
(the "Developer Utility Easement") to install, maintain, repair and replace
utility facilities such as water, gas, electric, and telephone lines and storm
and sanitary sewers underground within portions of the Leased Property, in
such locations which are consistent with the Development Plan and which
locations are approved by the Executive Director from time to time, which
approval shall not be unreasonably withheld; and
(c) Limitations on Easement Rights. The rights and
easements granted or reserved in Section 2.6(b) shall be limited as follows,
however, no provision stated herein shall add to or detract from any existing
easement presently encumbering the Leased Property, as identified on the
Permitted Exceptions, by any other governmental entity or service district:
(i) The Developer or other party having the benefit of
any such easements (1) shall carry on any construction, maintenance or
repair activity with diligence and dispatch and shall use its diligent efforts to
complete the same in the shortest time possible under the circumstances, and
(2) shall not carry on any construction, maintenance or repair activity in the
easement area in such manner as to unreasonably interfere with the use and
enjoyment of the servient tenement, and will carry on such activities in such
a manner as not to unreasonably interfere with business or businesses then
being conducted in the Developer Improvements or on the Leased Property by
Developer or its Subtenants or Condominium Owners.
(ii) Except in the event of emergency, the party having
the benefit of such easement shall not carry on any construction,
replacement, maintenance or repair activity at any time in such easement
area until notifying the Executive Director of its intention to do so.
(iii) Promptly upon the completion of any such
construction, repair or maintenance activity, the Developer or other party
having the benefit of such easement shall, at its expense, restore the surface
15
of the easement area as nearly as possible to its former condition and
appearance.
(d) Duration of Easements. Unless a shorter term is
provided, each of the rights and easements granted or reserved in Section
2.6(b) shall be for the Term of this Lease.
(e) Confirmatory Instruments. Each party covenants and
agrees that from time to time at the request of the other party, it shall
execute and deliver such additional documents or instruments confirming the
rights and easements granted and reserved in this Section 2.6 or more
precisely fixing their location as such requesting party shall deem to be
necessary or desirable.
Section 2.7 Title to Leased Property. The CRA represents, covenants
and warrants that it has good and marketable fee simple title to the Leased
Property and all of the improvements thereon, which title is free and clear
from all covenants, easements, liens, clouds of title or other exceptions except
for the Permitted Exceptions. Developer acknowledges that as of the
Effective Date of this Lease the condition of title to the Leased Property is
acceptable to Developer and Developer waives any right to object to same.
Section 2.8 Rental. The Rental Commencement Date shall be the
Effective Date of this Lease (the "Rent Commencement Date").
Simultaneously with the execution of this Lease, Developer shall pay to the
CRA as Rental, the amount defined in Section 2.8(a) below.
(a) Rentals Payable. Developer covenants and agrees to pay
the CRA during the Term, as rental ("Rental") for the Leased Property an
"Annual Basic Rental" as set forth in Exhibit "F" attached hereto, and to
construct and convey to the CRA to Subsidized Units. Developer shall receive
a credit against the Rental equal to the Settlement Payment actually made
by Developer.
(b) Payment of Rental. Annual Basic Rental shall commence
on the Rent Commencement Date. Simultaneously with the execution of this
16
Lease, Developer shall pay to the CRA Four Million Four Hundred Thousand
and No/100 Dollars ($4,400,000,00) representing the Annual Basic Rental for
the first Lease Year Developer shall receive a credit against such payment in
the amount of the Initial Settlement Payment. Thereafter, Annual Basic
Rental shall be paid annually in advance commencing on the second day of
January in the year succeeding the end of the first Rental Year and shall be
paid to the CRA at 49 N.W. Fifth Street, Suite 100, Miami, Florida 33128, or
at such other place as the Executive Director shall designate from time to
time in a notice given pursuant to the provisions of Section 22.5 in the
amount specified on Exhibit F. Any Rental payment not made within ten
(10) days of when dueshall be subject to a late fee in the amount of five
percent (5%) of the applicable payment (the "Late Fee"). In addition, any
payment not made within ten (10) days of when due shall automatically
accrue interest at a rate equal to five percent (5%) above that rate charged by
the Citibank, N.A. of New York, generally referred to as its prime rate
("Default Rate") from the date that payment was due until paid. Annual
Basic Rental applicable for the balance of the calendar year from the Rent
Commencement Date until the end of the first year shall be due within ten
(10) days of the Effective Date.
(c) Sales and Use Tax. In addition to the Annual Basic
Rental, Developer shall pay all sales and/or use taxes due with respect to any
Rental paid pursuant to this Lease.
(d) Rental shall include the obligation of the Developer to
develop the Subsidized Units and convey same to the CRA, or its designee,
free and clear of all liens and encumbrances other than the Permitted
Exceptions, the Condominium Documents, and any easements created by
Developer in connection with the construction of the Project and the
Subsidized Unit Restriction, upon completion of construction of each Phase of
the Project, within thirty (30) days of the issuance of a temporary certificate
17
of occupancy for each such Subsidized Unit until Developer has conveyed to
the CRA, or its designee all of the Subsidized Units.
Section 2.9 Covenants for Payment of Public Charges by Developer,
Developer, in addition to the Rental, covenants and agrees to pay and
discharge, before any fine, penalty, interest or cost may be added to amounts
which have become delinquent, all applicable real and personal property
taxes, all applicable ad valorem real property taxes, all special assessments,
all taxes on rentals payable hereunder and under subleases, public
assessments and other public charges, including, but not limited to, electric,
water and sewer rents, rates and charges (all such taxes, public assessments
and other public charges being hereinafter referred to as "Public Charges")
levied, assessed or imposed by any public authority against the Leased
Property, including fee simple title to the Land, all Developer Improvernen
and any other improvements on the Leased Property in the same manner and
to the same extent as if the same, together with all improvements thereon,
were owned in fee simple by Developer; provided, that Developer's obligation
to pay and discharge Public Charges levied, assessed or imposed against or.
with respect to the Leased Property shall not commence until the R€n
Commencement Date. Notwithstanding the provisions of this Section 2.9,
Developer shall have the right to contest the amount or validity, in whole or
in part, of any Public Charges by appropriate proceedings. The CRA agrees
to consent to and/or formally join in any such proceedings to the extent it may
be allowed by law, if such consent and/or joiner be required by law for the
prosecution thereof. Developer shall pay all charges for metered water, sewer
service charges and other fees or charges lawfully imposed by any pu biic
authority upon or in connection with the Leased Property prior to becoming j
delinquent.
Developer, upon written request, shall, within thirty (30) days of
such request, furnish or cause to be furnished to the Executive Director.
18
official receipts of the appropriate taxing authority, or other proof satisfactory
to the Executive Director evidencing the payment of all Public Charges,
Section 2.10 Approvals and Consents. Wherever in this Lease the
approval or consent of any party is required, it is understood and agreed that
such approval or consent will not be unreasonably withheld or delayed,
except if expressly provided to the contrary.
Section 2.11 Condition of Leased Property.
2.11.1 Inspection. The Developer has inspected the physical
condition, matters of zoning, title, survey and all other matters with respect
to the Leased Property, including, without limitation, environmental matters
(collectively the "Inspections") and has determined that the Leased Property
is acceptable to Developer.
2.11.2 Acceptance of Leased Property. The Developer hereby
acknowledges that it has had adequate opportunity to review and inspect all
portions of the Leased Property, including, without limitation, the
environmental condition of the Leased Property and, based upon its
Inspections, the Developer has determined that the condition of all portions
of the Leased Property are satisfactory to Developer and Developer accepts
every portion of the Leased Property in its "AS IS, WHERE IS, WITH ALL
FAULTS" condition.
2.11.3 Disclaimer of Representations by CRA. The Developer
hereby expressly acknowledges and agrees that in connection with the
execution of this Lease:
(a) The CRA has made no warranty or representation
whatsoever as to the condition or suitability of any portion of the Leased
Property for development in accordance with the provisions of the
Development Plan.
(b) The CRA has made no warranty, express or implied, with
regard to the accuracy of any information furnished to the Developer, and the
19
CRA shall not be bound by any statement of any broker, employee, agent or
other representative of the CRA.
(c) The CRA has made no representations, warranties or
promises to the Developer not explicitly set forth in this Lease.
(d) The CRA has made no representations or warranties,
express or implied, with regard to the neighborhood, that the CRA
Redevelopment Area will be developed, or as to the precise type or quality of
improvements that will be constructed within the CRA Redevelopment Area
or the timing thereof.
(e) The CRA has made no representation or warranty,
express or implied, concerning any portion of the Leased Property, their
condition or other things or matters directly or indirectly relating thereto or
hereto, including, without limitation, no warranty as to merchantability or
fitness for any particular purpose or relating to the absence of latent or other
defects.
ARTICLE III
CONSTRUCTION OF IMPROVEMENTS
Section 3.1 Development Plan. Developer intends to construct
approximately one thousand fifty (1,050) residential units on the Leased
Property, consisting of apartments, townhouses, lofts, and Live/Work Units,
which units will be constructed in mid -rise and high-rise structures
(individually "Residential Unit" and collectively the "Residential Units") and
approximately seventy-five thousand (75,000) square feet of retail and office
space, in accordance with the detailed development plan for the Project which
has been prepared by Developer and approved by the CRA, a copy of which is
attached hereto as Exhibit "G" (the "Development Plan"). The Development
Plan includes (1) the site plan for the entire Project; (2) the Block by Block
breakdown of the Project, including without limitation, the number, type,
style and size of units to be constructed in each Block; (3) the Phasing Plan
for the Project, including the number, type, style and size of units to be
20
included in each Phase; (4) the Project schedule for the overall Project (the
"Project Schedule"); (5) the Project schedule with respect to each Phase (the
"Phase Project Schedule"); (6) a break down of the Affordable Units, as
hereinafter defined, and Subsidized Units, as hereinafter defined, to be
included in each phase of the Project, which shall include a breakdown of the
square footage and unit mix of the Affordable Units and Subsidized Units.
Section 3.2 Conformity of Plans. Any and all construction plans and
all work by Developer with respect to the Leased Property and the
construction of the Developer Improvements shall be in strict conformity with
the Development Plan, the terms and provisions of this Lease, all applicable
governmental approvals, the MUSP, the Miami Charter and Code, applicable
building codes, and all other applicable state, county and local laws and
regulations.
Section 3.3 Amendment to Development Plan. Any and all
amendments to the Development Plan shall be submitted to the Executive
Director for review and approval. The Developer shall provide to the
Executive Director such additional backup information as the Executive
Director may reasonably request to enable the Executive Director to analyze
and approve the amendment to the Development Plan. The Executive
Director shall have fifteen (15) days from the receipt of the proposed
amendment to the Development Plan to review and approve or disapprove
same. The failure of the Executive Director to respond within the fifteen (15)
day period shall be deemed denial. The Executive Director may approve all
proposed amendments to the Development Plan which are less than five
percent (5%) provided same do not change the overall character of the Project
(i.e. an increase or decrease in the number of units by up to five percent (5%)
or an increase or decrease in the square footage of the Project by up to five
percent (5%) which changes do not substantially change the character or site
plan for the Project). Any changes in excess of five percent (5%) shall be
submitted to the CRA Board for approval, in which event CRA shall have
21
ninety (90) days from the receipt of the proposed amendment to the
Development Plan to take CRA Board action. The failure of the CRA Board
to take action within ninety (90) days shall be deemed denial of the requested
change to the Development Plan.
Section 3.4 Project Schedule. Developer shall construct the
Development Improvements in accordance with the terms of the Project
Schedule, as extended as a result of Unavoidable Delays.
Section 3.5 Extensions of Project Schedule. Any and all amendments
to the Project Schedule, including those occurring as a result of Unavoidable
Delays, shall be submitted to the Executive Director for review and approval.
The Developer shall provide to the Executive Director such additional back-
up information as the Executive Director may reasonably require to enable
the Executive Director to analyze the request for an extension to the Project
Schedule. Any proposed extension to the Project Schedule, other than as a
result of Unavoidable Delays, shall be submitted to the CRA Board for
approval, which approval may be granted or denied in the sole discretion of
the CRA Board.
Section 3.6 Requirements to be Satisfied Prior to the Development of
each Phase. Prior to Developer commencing construction of the Developer
Improvements with respect to each Phase of the Project, Developer shall
comply witheach of the following requirements with respect to such Phase:
3.6.1 Construction Plans. For purposes of this Lease, with
respect to each Phase, the "Construction Plans" shall consist of final working
drawings and specifications, including without limitation, the following
information:
a. Final site plan for the Phase;
b. Floor by floor layouts of each building included in
the Phase;
c. Exterior elevations of each building included in the
Phase; and
22
d. Final landscape plan for the Phase.
With respect to each Phase, Developer shall submit to the
Executive Director three (3) sets of the Construction Plans for review and
approval. The Executive Director shall have fifteen (15) days from receipt of
the Construction Plans to notify Developer of its approval or disapproval,
setting forth in detail its reasons for any disapproval. The Executive
Director's right to disapprove the Construction Plans submitted shall be
limited to matters depicted on the Construction Plans which: (i) do not
conform to the Development Plan, as same may be amended; (ii) do not
conform to previously approved Construction Plans; or (iii) are in violation of
this Lease or of governmental ordinances, codes, plans or regulations. If no
response from the Executive Director is delivered to the Developer within
fifteen (15) days after the submission of such Construction Plans, or any
resubmission thereof as hereinafter provided, the Construction Plans shall be
deemed approved, except that no violations of applicable laws, ordinances,
codes, regulations of this Lease shall be deemed waived thereby. In the event
of disapproval, Developer shall promptly resubmit the Construction Plans to
the Executive Director, altered to address and/or satisfy the grounds for
disapproval. Any resubmission shall be subject to the review and approval by
the Executive Director in accordance with the procedures outlined herein for
the original submission until same have been approved by the Executive
Director, The Executive Director and the Developer shall in good faith
attempt to resolve any disputes regarding the Construction Plans. No
approval by the Executive Director of any Construction Plans, pursuant to
this Section, shall relieve the Developer of any obligation it may have
pursuant to applicable law to file such Construction Plans with any
department of the City or any other governmental authority having
jurisdiction or to obtain a building or other permit or approval required by
applicable law. The Developer acknowledges that the approval given by the
Executive Director, pursuant to this Section, shall not constitute an opinion
23
or agreement by the CRA that the Construction Plans are structurally
sufficient or in compliance with any laws, codes, or other applicable
regulations and no such approval shall impose any liability on or waive any
rights of the CRA. The Developer agrees that it shall provide to the CRA
copies of all plans and specifications used in the construction of the Developer
Improvements upon completion of each Phase of the Project. Developer
agrees to use its diligent efforts to obtain the consent of the Leasehold
Mortgagee for the vesting in the CRA of all rights, title and interest in the
Construction Plans if this Lease is terminated by reason of an Event of
Default.
3.6.2 Phase Construction Budget. Developer shall submit to
the Executive Director for its review and approval, a detailed budget.
reflecting all hard and soft costs anticipated to be incurred by Developer i oa
connection with the development of the respective Phase (the "Construction
Budget"). The Developer shall provide to the Executive Director such
additional backup information as the Executive Director may reasonably
request to enable the Executive Director to analyze the Construction Budget
The Executive Director shall have fifteen (15) days after receipt of the
Construction Budget to approve same, which approval shall not be
unreasonably withheld. If no response from the Executive Director i;
delivered to the Developer within fifteen (15) days after submission of tilt
Construction Budget, same shall be deemed approved. In the event of'
disapproval, the Executive Director shall specify the specific reasons for such
disapproval. In the event of disapproval, the Developer shall resubmit the
Construction Budget to the Executive Director, amended to address and/or
satisfy the grounds for disapproval specified by the Executive Director. Axe,,
resubmission shall be subject to agreement and approval by the Executive
Director in accordance with the procedure outlined above for the original
submission until same is approved by the Executive Director. The Executivt
24
Director and Developer shall in good faith attempt to resolve any disputes
regarding the Construction Budget.
3.6.3 Construction Contract. Developer shall submit to the
Executive Director for its review and approval the construction contract for
the respective Phase (the "Construction Contract"), which shall include the
schedule of values for the Phase and the obligation of the general contractor
to comply with the minority participation requirements set forth in Section
5.2.1 of this Lease. The Developer shall provide to the Executive Director
such additional backup information as the Executive Director may
reasonably request to enable the Executive Director to analyze and approve
the Construction Contract. The Executive Director shall have fifteen (15)
days after receipt of the Construction Contract to approve same, which
approval shall not be unreasonably withheld. The Executive Director shall
approve any Construction Contract that is substantially similar in form to
the Construction Contract for Phase I, which has been approved by the
Executive Director. If no response from the Executive Director is delivered to
the Developer within fifteen (15) days after submission of the Construction
Contract, same shall be deemed approved. In the event of disapproval, the
Executive Director shall specify the specific reasons for such disapproval. In
the event of disapproval, the Developer shall resubmit the Construction
Contract to the Executive Director, revised to address and/or satisfy the
grounds for disapproval specified by the Executive Director. Any
resubmission shall be subject to agreement and approval by the Executive
Director in accordance with the procedure outlined above for the original
submission until same is approved by the Executive Director. The Executive
Director and Developer shall in good faith attempt to resolve any disputes
regarding the Construction Contract.
3.6.4 Construction Schedule. Developer shall submit to the
Executive Director for its review and approval the specific schedule for
development of each Phase (the "Construction Schedule"). The Developer
25
shall provide to the Executive Director such additional backup information as
the Executive Director may reasonably request to enable the Executive
Director to analyze the Construction Schedule. The Executive Director shall
have fifteen (15) days after receipt of the Construction Schedule to approve
same, which approval shall not be unreasonably withheld. If no response
from the Executive Director is delivered to the Developer within fifteen (15)
days after submission of the Construction Schedule, same shall be deemed
approved. The Executive Director's right to disapprove the Construction
Schedule shall be limited to matters which do not conform with the Project
Schedule. In the event of disapproval, the Executive Director shall specify
the specific reasons for such disapproval. In the event of disapproval, the
Developer shall resubmit the Construction Schedule to the Executive
Director, altered to address and/or satisfy the grounds for disapproval
specified by the Executive Director. Any resubmission shall be subject to
agreement and approval by the Executive Director in accordance with the
procedure outlined above . for the original submission until same is approved
by the Executive Director. The Executive Director and Developer shall in
good faith attempt to resolve any disputes regarding the Construction
Schedule.
3.6.5 Payment and Performance Bond. Developer shall submit
to the Executive Director and the City Attorney payment and performance
bonds in an amount equal to one hundred percent (100%) of the hard
construction costs for the respective Phase which shall name the CRA as a
dual obligee (the "Payment and Performance Bonds"). The form of the
Payment and Performance Bonds shall be subject to the review and approval
of the Executive Director and the City Attorney. The Developer shall provide
to the Executive Director and the City Attorney such additional backup
information as the Executive Director and the City Attorney may reasonably
request to enable the Executive Director and the City Attorney to analyze the
Payment and Performance Bonds. The Executive Director and the City
26
Attorney shall have fifteen (15) days after receipt of the Payment and
Performance Bonds to approve same, which approval shall not be
unreasonably withheld. The Executive Director and the City Attorney shall
approve the Payment and Performance Bonds, provided that same are issued
by a surety having a credit rating of "A" or higher with a financial strength of
"X" or higher utilizing the same bond form approved for Phase I. If no
response from the Executive Director and the City Attorney is delivered to
the Developer within .fifteen (15) days after submission of the Payment and
Performance Bonds, same shall be deemed approved. In the event of
disapproval, the Developer shall resubmit the Payment and Performance
Bond to the Executive Director and the City Attorney, altered to address
and/or satisfy the grounds for disapproval specified by the Executive Director
and the City Attorney. Any resubmission shall be subject to approval by the
Executive Director and the City Attorney in accordance with the procedure
outlined above for the original submission until approved by the Executive
Director and the City Attorney. The Executive Director, the City Attorney
and Developer shall in good faith attempt to resolve any disputes regarding
the Payment and Performance Bond.
3.6.6 Minority Participation. Developer shall submit evidence
to the Executive Director evidence of compliance with the Minority
Participation Requirements of Section 5.2.1, 5.2.2, 5.2.3 and 5.2.4 with
respect to the Phase. The Developer shall provide to the Executive Director
such additional backup information as the Executive Director may
reasonably request to enable the Executive Director to confirm compliance
with the Minority Participation Requirements. The Executive Director shall
have fifteen (15) days after receipt of the minority participation
documentation to approve same, which approval shall not be unreasonably
withheld. If no response from the Executive Director is delivered to the
Developer within fifteen (15) days after submission of the minority
participation documentation, same shall be deemed approved. The Executive
27
Director shall approve the minority participation documentation if it
evidences compliance with requirements of Section 5.2.1, 5.2., 5.2.3 and
5.2.4. In the event of disapproval, the Executive Director shall specify the
specific reasons for such disapproval. In the event of disapproval, the
Developer shall resubmit the minority participation documentation to the
Executive Director, revised to address and/or satisfy the grounds for
disapproval specified by the Executive Director. Any resubmission shall be
subject to approval by the Executive Director in accordance with the
procedure outlined above for the original submission until same is approved
by the Executive Director. The Executive Director and Developer shall in
good faith attempt to resolve any disputes regarding compliance with the
Minority Participation Requirements. Notwithstanding the Executive
Director's approval of the minority participation documentation, the
Developer shall be required to comply with the Minority Participation
Requirements set forth in Section 5.2.1 and 5.2.2.
3.6.7 Loan Commitment. Developer shall have provided to the
Executive Director a loan commitment prepared by an institution evidencing
that Developer has obtained a construction loan commitment for the
development of the respective Phase (the "Loan Commitment"), which shall
be in form and substance acceptable to the Executive Director and evidence
reasonably satisfactory to the Executive Director that Developer has
sufficient equity available to meet the equity requirements of the Loan
Commitment (the "Equity Requirement"). The Developer shall provide to the
Executive Director such additional backup information as the Executive
Director may reasonably request to enable the Executive Director to analyze
and approve the Loan Commitment and the Equity Requirement
documentation. The Executive Director shall have fifteen (15) days after
receipt of the Loan Commitment and Equity Requirement documentation to
approve same, which approval shall not be unreasonably withheld. The
Executive Director shall approve the Loan Commitment and Equity
28
Requirement documentation if it is substantially equivalent to the
documentation submitted and approved by Executive Director with respect to
Phase I. If the Executive Director does not respond to the Developer within
fifteen (15) days after Developer's submission of the Loan Commitment and
Equity Requirement documentation, same shall be deemed approved. In the
event of disapproval, the Executive Director shall specify the specific reasons
for such disapproval. In the event of disapproval, Developer shall resubmit
the Loan Commitment and Equity Requirement documentation to the
Executive Director, altered to address and/or satisfy the grounds for
disapproval specified by the Executive Director. Any resubmission shall be
subject to approval by the Executive Director in accordance with the
procedure outlined above for the original submission until same is approved
by the Executive Director. The Executive Director and Developer shall in
good faith attempt to resolve any disputes regarding the Loan Commitment
and Equity Requirement documentation.
Section 3.7 Phase I. The CRA acknowledges and agrees that the CRA
has approved the Construction Contract, the Budget, the Loan Commitment,
the Equity Requirement, the Construction Contract, minority participation
documentation, the Construction Schedule, and the Payment and
Performance Bonds with respect to Phase I.
Section 3.8 Progress of Construction. Developer shall not commence
construction of the Developer Improvements for any Phase until all of the
requirements of Section 3.6 are satisfied for such Phase. Upon the
satisfaction of all the requirements set forth in Section 3.6, the Developer
shall promptly commence construction of such Phase. Until completion of
construction of the respective Phase, Developer shall keep the Executive
Director apprised of the progress of Developer with respect to such
development and construction. During such period, the work of Developer
shall be made available for inspection by representatives of the Executive
29
Director. Developer shall provide suitable work space and utilities for the
representative of the CRA, at Developer's sole cost and expense.
Section 3.9 Soil Conditions. Developer, by executing this Lease,
represents that it has visited the Land, is familiar with local conditions under
which the construction operation is to be performed, will perform all tests,
borings and subsoil engineering generally required at the site under sound
and prudent engineering practices and will correlate the results of its tests,
borings and subsoilengineering and other available studies and its
observations with the requirements of the construction operation of the
Project. The CRA has made no warranty or representation regarding subsoil.
conditions. Developer shall not be entitled to any adjustment of Rental or
any applicable requirements contained in the Project Schedule in the event of
any abnormal subsoil conditions unless the subsoil conditions are so unu,sua
they could not have been reasonably anticipated.
Section 3.10 Certificate of Final Completion. Promptly after the
completion of each Phase of the Developer Improvements in accordance with
the terms of this Lease and the issuance of certificates of occupancy for
units included in the respective Phase and the issuance of a certificate o
completion for all commercial space included in the respective Phase by the
City, the Executive Director will furnish Developer with an appropriat,e
instrument certifying the completion of the Developer Improvements in such
Phase (the "Certificate of Final Completion"). With respect to each Phase,
the Certificate of Final Completion shall be in such form as will enable it to
be recorded in the Public Records of Miami -Dade County, Florida. if th
Executive Director shall refuse or fail to provide Developer with i:h
Certificate of Final Completion in accordance herewith, the Execu t i v
Director shall, within fifteen (15) days after written request by Developer,
provide Developer with a written statement specifying in adequate detail ak_;
deficiencies in the Developer Improvements for the respective Phase 1
accordance with the provisions of this Lease, and what measures and action,
30
in the opinion of the Executive Director, are necessary for the Developer to
take or perform in order to obtain such certification.
Section 3.11 Penalties for Non -Compliance with Project Schedule. In
the event that the Developer is not able to complete a Phase within six (6)
months of the scheduled completion date for such Phase in accordance with
the Construction Schedule, as extended for Unavoidable Delays, as evidenced
by the issuance of the Certificate of Final Completion (the "Completion
Date"), Developer shall pay to the CRA a non-compliance fee of $10,000.00
per month (the "Non -Compliance Fee") for each month after the Completion
Date until the Completion Date is achieved. For purposes of this Section, a
Phase shall be deemed complete when temporary certificates of occupancy
have been issued for all of the residential units included in the respective
Phase and certificates of completion have been =issued for all commercial
space included in the respective Phase and the issuance of a Certificate of
Final Completion. The Non -Compliance Fee shall be paid monthly on the
first day of each and every month until the Completion Date is achieved. The
Non -Compliance Fee shall be prorated for partial months. The Non -
Compliance Fee shall apply on a Phase by Phase basis.
Section 3.12 Maintenance of Leased Property. The Developer, without
cost or expense to the ORA, at all times during the term of this Lease,
(including any new lease executed pursuant to the provisions of Sections 9.1.)
shall maintain and keep or cause to be maintained and kept in good order,
repair and appearance all of the property and improvements located in the
Leased Property.
Section 3.13 Connection of Building to Utilities. Developer, at its sole
cost and expense, will install or cause to be installed all necessary
connections between the Developer Improvements on the Leased Property
and the water, sanitary and storm drain mains and mechanical and electrical
conduits, whether or not owned by the City and/or the Miami Dade Water
and Sewer Authority ("WASA"). Developer shall pay for the additional cost,
31
if any, of locating and installing new facilities for sewer, water, electrical, and
other utilities as needed to service the Leased Property and the Developer
Improvements. Developer acknowledges that the CRA will not be responsible
to install or cause to be installed up to the property line of the Leased
Property any utility lines for the Project.
Section 3.14 Permits and Approvals. Developer shall secure and pay
for any and all permits and approvals necessary for proper construction and
completion of the Developer Improvements and Developer shall secure any
and all permits and approvals required to be secured in connection with the
performance of any and all of the work or operations contemplated to be done
or performed under any of the provisions of this Lease, and shall pay any and
all fees and charges due in connection with the issuance of any such permits
and approvals, unless waived by the City.
Developer shall secure and pay for any and all permits and
approvals necessary for proper construction and completion of the Developer
Improvements, including without limitation, the permits and approvals
required pursuant to Section 380.06, Florida Statutes and/or Chapter 33A of
the Dade County Code, if any. Specifically, Developer shall secure any and
all permits and approvals, required to perform any and all of the work or
operations contemplated to be done or performed under any of the provisions
of this Lease, and shall pay any and all fees and charges in connection with
the issuance of any such permits and approvals, unless waived by the City.
Section 3.15 Compliance with Laws. Developer will comply in every
respect with any and all federal, state, county and municipal laws,
ordinances, rules, regulations, orders and notices now or hereafter in force or
issued which may be applicable to any and all of the work or operations to be
done, performed or carried on by Developer under the provisions of this
Lease. Nothing herein shall limit the right of Developer to contest the
validity or enforceability or any statute, law, ordinance, rule, regulations,
order to notice with which Developer may be required to comply hereunder.
32
Section 3.16 County Reverter Litigation.
3.16.1 Reverter. Developer acknowledges that the portion of the
Land which is more particularly described on Exhibit "H" attached hereto
and made a part hereof (the "Reverter Property") is subject to a right of
reverter in favor of the County. Pursuant to the terms of the Settlement
Agreement reached between the County and the City, Case No. 01-13810 CA
08, in the Eleventh Judicial Circuit in and for Miami -Dade County, Florida
(the "County Litigation"), the Reverter Property is to be developed on or
before August 1, 2007, or title to the Reverter Property will automatically
revert to the County in accordance with the terms of the Settlement
Agreement attached hereto as Exhibit "I" (the "County Settlement").
3.16.2 Deed in Escrow. Developer acknowledges that pursuant
to the terms of the County Settlement, the CRA has delivered or will deliver
to the County a quitclaim deed conveying the Reverter Property to the
County and should the terms and provisions of the County Settlement not be
complied with title to the Reverter Property shall be conveyed to the County.
3.16.3 Acknowledgement of Risk. Developer acknowledges and
agrees that Developer shall bear all risk of compliance with the. terms of the
County Settlement and Developer will bear all risk should the terms of the
County Settlement not be complied with, and Developer waive any claims
against the CRA and the City in connection therewith.
3.16.4 Priority to Reverter Property. Developer covenants and
agrees to develop the Revert Property, as part of Phase I.
ARTICLE IV
AFFORDABLE HOUSING
Section 4.1 Affordable Housing Requirement. Developer shall sell not
less than twenty percent (20%) of the Residential Units comprising the
Project (the "Affordable Units") to: (a) qualified buyers whose gross income is
between 80.01% and 120% of the Miami -Dade County mean income at a
purchase price which will enable the purchaser to have a housing debt ratio
33
of not greater than thirty-five percent (35%) and a gross income to total debt
ratio of less than forty-five percent (45%) and to a purchaser who has a total
net worth not to exceed Fifty Thousand and no/100 Dollars ($50,000.00) as
set forth in Section 4.8; or (b) to purchasers whose gross income is between
80.01% and 120% of the Miami -Dade County mean income and who qualify
for SHIP Funds, as hereinafter defined, HOME Funds, as hereinafter defined
and/or Surtax Funds, as hereinafter defined, pursuant to the applicable
criteria for whatever loan program is used to finance the acquisition of the
unit (collectively the "Affordable Housing Requirement"). None of the
Live/Work Units shall be Affordable Units; however, the Live/Work Units
shall be included in the total number of Residential Units which is utilized to
calculate the number of Affordable Units that Developer is required to
provide. By way of example, if the Project includes 1050 Residential Units,
including 150 Live/Work Units, Developer shall be required to provide 210
Affordable Units notwithstanding the fact that none of the Live/Work Units
shall be designed as Affordable Units. The Affordable Units which are sold to
satisfy the Affordable Housing Requirement shall be reasonably distributed
in each block comprising a portion of the Project, as identified on the
Development Plans, and shall be comprised of a mix -virtually identical to the
unit mix (based upon the number of bedrooms, type of units and square
footage) of the respective Residential Units, excluding the Live/Work Units,
which are to be sold at market rates in each block of the Project and which
shall in all other respects be completed with the same fit and finish as the
other units in such block of the Project which are to be sold at market rates.
Developer shall be required to satisfy the Affordable Housing Requirement
notwithstanding the unavailability of governmental subsidies. Developer
acknowledges and agrees that Developer is required to satisfy the Affordable
Housing Requirement irrespective of Developer's ability to obtain Miami -
Dade County surtax funds ("Surtax Funds"), Community Development
Department funds ("HOME Funds") and/or State Housing Incentive Program
34
("SHIP Funds"). Developer further acknowledges that the City and the CRA
have made no representations to Developer regarding the availability of
housing subsidy funds including Surtax Funds, HOME Funds, SHIP Funds
or other sources of funds and Developer assumes the risk as to whether
housing subsidies will be available for the Project. Units sold to Overtown
Residents, as hereinafter defined, shall be deemed to comply with the
Affordable Housing Requirement.
Section 4.2 Subsidized Units. Developer shall construct as part of the
Project fifty (50) units, comprising a portion of the Affordable Units,
comprised of a mix of units virtually identical to the unit mix (based upon the
number of bedrooms, type of unit, and square footage) of the respective
Residential Units, excluding the Live/Work Units, which are to be sold at
market rates in each block of the Project, which Subsidized Units are to be
conveyed to the CRA, or its designee, upon completion of construction of the
prospective phase of the Project and which units are to be resold by the CRA,
or its designee, to qualified purchasers whose gross income is not greater
than eighty percent (80%) of the Miami -Dade County or (b) a purchase price
which qualifies for use of SHIP Funds, HOME Funds, Surtax Funds and/or
any similar federal, state or County programs available for affordable
housing, pursuant to the applicable criteria for whichever loan program is
utilized to finance the acquisition of the unit (collectively the "Subsidized
Unit Restriction"). The Subsidized Units conveyed by Developer to the CRA,
or its designee, shall be deemed to comprise a portion of the Affordable Units
and shall in all respects be identical to the Affordable Units and shall in all
respects be completed with the same fit and finish as the other Residential
Units in such block of the Project which are to be sold at market rates.
Section 4.3 Implementation. Developer shall (i) engage in an
affordable housing consultant, which consultant shall be subject to the
approval of the Executive Director which approval shall not be unreasonably
withheld or delayed, to assist Developer in implementing a program to
35
comply with the Affordable Housing Requirement; and (ii) retain a recruiter
and loan processor to identify and qualify potential purchasers of the
Affordable Units to be sold by Developer and Subsidized Units to be sold by
the CRA, or its designee, and implement the program developed by Developer
to satisfy the Affordable Housing Requirement until Developer's obligations
regarding the Affordable Housing Requirements have been satisfied.
Section 4.4 Housing Subsidies. CRA covenants and agrees to utilize
its good faith efforts to obtain Surtax Funds, HOME Funds, SHIP Funds and
other housing assistance with respect to the Subsidized Units.
Section 4.5 Assistance Program. The CRA agrees to work with the
Collins Center, the Knight Foundation and other not -for -profit organizations
to develop a program to make the Subsidized Units viable.
Section 4.6 Affordable Units. Developer shall first offer the
Affordable Units to residents of the area of the City of Miami which is more
particularly described in Exhibit "K", attached hereto and incorporated
herein (the "Overtown Area"), and then to other residents of the City prior to
making the Affordable Units available to other residents of Miami -Dade
County.
Section 4.7 Existing Overtown Residents. The CRA, or its designee,
shall first offer the Subsidized Units to existing residents of the Overtown
Area and then to former Overtown Residents, before offering the Subsidized
Units to other residents of the City of Miami.
Section 4.8 Reporting Requirements and Compliance.
4.8.1 Affordable Housing Reports. From and after the issuance
of the first temporary certificate of occupancy for any Residential Unit
comprising a portion of the Project until the satisfaction of the Affordable
Housing Requirement, Developer shall be required to submit to the Executive
Director on an annual basis, Phase by Phase reports evidencing compliance
with the Affordable Housing Requirement (the "Affordable Housing
Reports"). The Affordable Housing Reports shall consist of a certification to
36
the CRA from the financial institution that performed the underwriting with
respect to the Affordable Unit or the Subsidized Unit which shall include the
following:
a. Purchaser of an Affordable Unit or Subsidized Unit
not utilizing SHIP Funds, HOME Funds or Surtax
Funds:
(i) certification that the income for the
purchaser for the previous six (6) months is
less than the maximum income threshold.
(ii) the total net worth of the purchaser does not
exceed Fifty Thousand and no/I00 Dollars
($50,000.00) inclusive of all gifts.
(iii) there are no financial guarantees or other
independent support for the loan.
(iv) the purchaser is not the beneficiary of any
trust.
(v) that the purchase price will enable the
purchaser to have a housing debt ratio of not
greater than thirty-five percent (35%) and a
gross income to total debt ratio of less than
forty-five percent (45%).
b. Purchaser utilizing SHIP Funds, HOME Funds
and/or Surtax Funds:
(i) certification that the income for the
purchaser for the previous six (6) months is
less than the maximum income threshold.
(ii) that the purchaser has satisfied the criteria
for SHIP Funds, HOME Funds and/or
Surtax Funds, as applicable, with respect to
the financing of the acquisition of the unit.
37
4.8.2 Disputes. To the extent of any disputes between
Developer and the Executive Director with respect to whether the purchasers
of the units meet the applicable requirements of Sections 4.1, 4.2 and this
Section 4.9, the dispute will be submitted to arbitration for resolution, which
resolution shall be binding on the parties.
Section 4.9 Penalties for Non -Compliance. To the extent that
Developer fails to comply with the Affordable Housing Requirement on a
Phase by Phase basis as determined in accordance with this Section 4 above,
then in such event, Developer shall pay to the CRA, as a penalty for non-
compliance, with the Affordable Housing Requirement with respect to each
comparable unit required to bring Developer into compliance one hundred
twenty-five percent (125%) of the difference between the average sales price
that the Developer is currently offering the applicable unit for sale to the
general public of the type unit(s) in question, less the maximum purchase
price that a purchaser earning one hundred percent (100%) of the Miami -
Dade County mean income would be able to pay for such a unit at a purchase
price which will enable the purchaser to have a housing debt ratio of not
greater than thirty-five percent (35%) and a gross income to total debt ratio of
less than forty-five percent (45%) as set forth in Section 4.9 (e.g. the average
sale price for a two bedroom unit less the maximum price that a purchaser
whose gross income is one hundred percent (100%) of the Miami -Dade County
mean income would be able to pay for a two bedroom unit at a purchase price
which will enable the purchaser to have a housing debt ratio of not greater
than thirty-five percent (35%) and a gross income to total debt ratio of less
than forty-five percent (45%) as set forth in Section 4.9 multiplied by one
hundred twenty-five percent (125%)), but in no event less than Twenty
Thousand and No/00 Dollars ($20,000.00) per unit. The penalty with respect
to any Phase of the Project shall be due and payable one hundred eighty (180)
days after the issuance of a temporary certificate of occupancy for the last
Residential Unit included in the applicable Phase.
38
Section 4.10 Deed Restrictions. All of the Affordable Units, other than
the Subsidized Units, shall be conveyed subject to a deed restriction which
will restrict the ability to sell or lease the units except to a purchaser who
meets the Affordable Housing Requirements of Section 4.1, 4.2 and 4.9, as
applicable, for a period of ten (10) years from the date of the closing of each
respective Unit (the "Deed Restriction") . Any violation of the Deed
Restriction shall require the purchaser to pay to the CRA, or its designee,
Twenty Thousand and No/100 Dollars ($20,000.00) as a result of the violation
of the Deed Restriction. The CRA agrees to impose the same Deed
Restriction, which will restrict the ability to sell the Subsidized Units except
to a Purchaser who meets the Affordable Housing Requirements of Sections
4.2 and 4.9, as applicable. The form of the Deed Restriction shall be subject
to the approval of the Executive Director.
Section 4.11 Overtown Residents. Developer shall utilize its best
efforts to sell twenty percent (20%) of the units comprising the Project to
residents of the Overtown Area or former residents of the Overtown Area or
their family members (collectively "Overtown Residents") at market rates.
Developer shall utilize real estate professional as well as community based
organizations such as churches and community development corporations
(collectively "CBO") located within or concentrated on serving the Overtown
Area to identify Overtown Residents. Any Overtown Residents, as certified
by a CBO, or who are otherwise established to the reasonable satisfaction of
the Executive Director to be Overtown Residents based upon school records,
birth records, tax records or other documentation, who purchase a unit shall
be counted as complying with the Affordable Housing Requirement
notwithstanding that the criteria for Affordable Housing has not been
complied with. The provisions of Section 4.11 shall not apply to the sale of a
unit to Overtown Residents.
Section 4.12 Prosperity Based Initiative. In connection with the sales
and marketing of the Units, Developer covenants and agrees to utilize its
39
best efforts to work with African American realtors to reach out and market
the Project to African Americans to relocate to the Overtown community.
This effort shall include the sale of Affordable Units as well as market rate
units to African Americans.
ARTICLE V
MINORITY AND WOMEN'S PARTICIPATION AND EQUAL
EMPLOYMENT OPPORTUNITY
Section 5.1 Minority and Women Participation and Equal
Opportunity. Developer agrees that it will:
(i) Take definitive action in the recruitment, advertising and
to attract and retain minority and female contractors and
subcontractors;
(ii) Provide a reasonable opportunity in the recruitment,
advertising and hiring of professionals, contractors and
subcontractors residing within the CRA Redevelopment
Area and within the City of Miami;
(iii) Take reasonable definitive action in retaining employees
regardless of race, color, place of birth, religion, national
origin, sex, age, marital status, veterans and disability
status;
(iv) Maintain equitable principles in the recruitment,
advertising, hiring, upgrading, transfer, layoff,
termination, compensation and all other terms, conditions
and privileges of employment;
(v) Monitor and review all personnel practices to guarantee
that equal opportunities are being provided to all
employees regardless of race, color, place of birth, religion,
national origin, sex, age, marital status, veterans and
disability status;
40
(vi) Post in conspicuous places, availability to employees and
applicants for employment, notices in a form to be
provided to the Executive Director, setting forth the non-
discrimination clauses of this Section 5.1; and
(vii) In all solicitations and advertisements for employment
placed by or on behalf of Developer, state that all
applicants will receive consideration for employment
without regard to race, creed, color or national origin.
Section 5.2 Participation Requirements. Developer agrees to comply
with the following minority and female participation requirements (the
"Minority Participation Requirements"):
5.2.1 Construction. Developer agrees to utilize its best efforts
to comply with the following minority and female participation requirements
with respect to construction:
28% Black participation
8% Female participation
15% Hispanic participation
5.2.2 Design. Developer agrees to comply with the following.
minority and female participation requirements with respect to design:
10% Black participation
5% Female participation
10% Hispanic participation
5.2.3 Property Management. Developer agrees to comply with
the following minority and female participation requirements with respect to
property management:
28% Black participation
8% Female participation
15% Hispanic participation
41
5.2.4 Sales and Marketing. Developer agrees to comply with
the following minority participation requirement with respect to its sales and
marketing staff:
20% Black participation
Section 5.3 Report Requirements, Developer shall provide, on an
annual basis, such documentation as the Executive Director may reasonable
request to evidence compliance with the Minority Participation Requirements
with respect to each of the categories described in Section 5.2 during the
preceding year (the "Minority Participation Reports") on a phase by phase
basis. To the extent of any disputes between Developer and the Executive
Director with respect to the compliance with the Minority Participation
Requirements, the dispute shall be submitted to arbitration for resolution.
which resolution shall be binding upon the parties.'
Section 5.4 Penalties for Non -Compliance. To the extent that:
Developer fails to comply with the Minority Participation Requirements on a
phase by phase basis in each of the categories described in Sections 3,2,
Developer shall pay to the CRA as a penalty Five Thousand and No/1O0
Dollars ($5,000.00) for each percentage point below the requirements s t:.
forth in Section 5.2.1, 5.2.2, 5.2.3 and 5.2.4, in each respective category
Developer fails to meet the applicable Minority Participation Requirement,
(the "Non -Compliance Funds"). The Non -Compliance Funds shall be
calculated by the Executive Director and shall be due within thirty (30) days
from the date of the Developer's receipt of written statement from the
Executive Director stating the amount of Non -Compliance Funds due. To t l
extent of any dispute between the Executive Director and Developer w:it t
respect to compliance with the Minority Participation Requirements, tsar
dispute shall be submitted to arbitration for resolution, which resolution
shall be binding upon the parties. The CRA covenants and agrees to uti
any Non -Compliance Funds paid to CRA pursuant to this Section for it
training program for residents of the CRA Redevelopment Are r ,
42
Determination of compliance with the Minority Participation Requirements
shall be determined on a Project -wide basis and not on a per Phase basis.
Section 5.5 Impossibility to Perform. Developer acknowledges that
the Minority Participation Requirements are mandatory requirements and
not an obligation to utilize best efforts. In the event that Developer, in good
faith, believes that it is impossible to satisfy some or all of the Minority
Participation Requirements for any phase as a result of there not being a
sufficient number of minority and female job candidates available to comply
with the Minority Participation Requirements, Developer may request that
the City Manager reduce the applicable Minority Participation
Requirements, in the applicable category, for that respective phase provided
that Developer is able to provide to the City Manager irrefutable evidence
that there was not a sufficient number of minority and/or female job
candidates available to comply with the applicable Minority Participation
Requirements. The decision of the City Manager shall be binding on
Developer and the CRA with respect to the phase in question.
Section 5.6 Professionals. Developer shall utilize its best efforts to
employ African American and other minorities to provide professional
services to Developer in connection with the Project, including, without
limitation, lawyers and accountants. Developer shall utilize its best efforts to
cause existing professionals employed by Developer to joint venture with
African Americans and other minorities to expand minority participation in
the Project in connection with the provision of professional services.
ARTICLE VI
FIRST SOURCE HIRING AGREEMENT AND
EMPLOYMENT TRAINING PROGRAM
Section 6.1 FIRST SOURCE HIRING AGREEMENT. Simultaneously
with the execution of this Lease, Developer and the CRA shall enter into a
first source hiring agreement for the Project in the form of Exhibit "L"
43
attached hereto and made a part hereof (the "First Source Hiring
Agreement"). The terms and provisions of the First Source Hiring Agreement
are incorporated herein by reference and made a part hereof. The failure of
Developer to comply with the terms and provisions of the First Source Hiring
Agreement within the applicable grace period provided herein shall
constitute an Event of Default under this Lease.
Section 6.2 Construction. The Developer, in conjunction with the
South Florida Work Force or such similar entity involved in job creation and
training, shall participate in an existing program or shall establish a "Skills
Training and Employment Program" at or near the Project which shall
provide for training of construction personnel for residents in the CRA
Redevelopment Area and in the City, which is more particularly described on
Exhibit "M" attached hereto and incorporated herein by reference (the "STE
Program"). The Developer shall comply with the terms and provisions of the
STE Program and the failure to so comply shall constitute an Event of
Default under this Lease, if not cured within the applicable grace period.
Section 6.3 Property Management. The Developer, in conjunction
with the South Florida Work Force or such similar entity involved in job
creation and training, shall participate in an existing program or shall
establish a "Property Management Training and Employment Program" at or
near the Project which shall provide for training of property management
personnel for residents in the CRA Redevelopment Area and in the City
which is more particularly described on Exhibit "N" attached hereto and
incorporated herein by reference (the "PMTE" Program"). The Developer
shall comply with the terms and provisions of the PMTE Program and the
failure to so comply shall constitute an Event of Default under this Lease if
not cured within the applicable grace period.
Section 6.4 Professionkls. Developer shall utilize its best efforts to
employ African American and other minorities to provide professional
services to Developer in connection with the Project, including, without
44
limitation, lawyers and accountants. Developer shall utilize its best efforts to
cause existing professionals employed by Developer to joint venture with
African Americans and other minorities to expand minority participation in
the Project in connection with the provision of professional services.
ARTICLE VII
LAND USES
Section 7.1 Land Uses. Developer and the CRA agree, for themselves
and their successors and assigns, to devote the Leased Property, to the uses
specified in this Lease and to be bound by and comply with all of the
provisions and conditions of this Lease, including, without limitation, the
requirement that the Developer Improvement be developed substantially in
accordance with the Development Plan during the Term of this Lease.
Section 7.2 Character and Operation of Improvements. The parties
recognize and acknowledge that the manner in which the Developer
Improvements on the Leased Property are developed, used and operated are
matters of critical concern to the CRA by reason of the economic development
of the CRA Redevelopment Area. Developer shall prepare condominium
documents (the "Condominium Documents") establishing such reasonable
rules and regulations governing the occupancy of Subtenants and
Condominiums Owners of their premises as the Developer shall deem
necessary or desirable in order to assure the level of quality and character of
operation of the Developer Improvements required herein, and the Developer
will use all reasonable efforts to enforce such rules and regulations. The
Condominium Documents shall be subject to the approval of the Executive
Director and the rules and regulations included in the Condominium
Documents shall be in accordance with the provisions set forth in Chapter
718, Florida Statutes governing condominiums and shall not conflict with
this Lease or CRA's interest. The Executive Director shall also review and
45
approve the standard form contract to be utilized to sell any units to
Condominium Owners.
ARTICLE VIII
ANTI -SPECULATION: ASSIGNMENT
Section 8.1 Definitions. As used herein, the term,
(a) "Transfer" means:
(i) any total or partial sale, assignment or conveyance
(other than by a Leasehold Mortgage or Financing Sublease) or any trust or
power, or any transfer in any other mode or form of or with respect to this
Lease or of the leasehold estate in the Leased Property or any part thereof or
any interest therein, or any contract or Lease to do any of the same.
(ii) any transfer of the stock of the General Partner of
Developer or of any Owners other than an Owner whose shares are publicly
traded; or
(iii) any merger, consolidation or sale or lease of all or
substantially all of the assets of Developer or of any Owner, other than an
owner whose shares are publicly traded; or
(iv) any Sublease of over fifty (50) percent of the
Leaseable Area of a Phase to a single Subtenant or Subtenants who are
related in their ownership, except for a Financing Sublease.
(b) "Owner" means:
(i) any person, firm, corporation or other entity which
owns, directly or indirectly, legally or beneficially, ten percent (10%p) or more
of the stock of the General Partner of Developer (excluding any shareholder
of an Owner whose shares are publicly traded) or other form of ownership
interest of the Developer; and
(ii) any person, firm, corporation or other entity which
owns, directly or indirectly, legally or beneficially, more than ten percent
(10%) of the stock of the General Partner of Developer or other form of
46
ownership interest of any entity described in clause (i) of this clause (ii), but
shall not include any shareholder of an Owner whose shares are publicly
traded.
(c) "Owner whose shares are publicly traded" means an
Owner:
(i) who has filed an effective registration statement
with the Securities & Exchange Commission (or its successor) with respect to
the shares of any class of its voting stock or of all classes of any other form of
ownership interest which includes voting rights; and
(ii) whose voting stock and other form of ownership
interest described in clause (i) is listed for trading purposes on a securities
exchange subject to the regulatory jurisdiction of' the Securities & Exchange
Commission (or its successor) or is publicly traded`over the counter.
Section 8.2 Purposes of Restrictions on Transfer. This Lease is
granted to Developer solely for the purpose of development of the Leased
Property and its subsequent use in accordance with the terms hereof, and not
for speculation in landholding. Developer recognizes that, in view of:
(a) The importance of the development of the Leased
Property to the general welfare of the community;
(b) The terms and conditions and public aids that have been
made available by the CRA for the purpose of making such development
possible; and
(c) The fact that a transfer of controlling membership
interests of the Developer, or any other act or transaction involving or
resulting in a significant change in the ownership or distribution of such
interests or with respect to the identity of the parties in control of Developer
or the degree thereof, is for practical purposes, a transfer or disposition of the
interest in the Leased Property then owned by Developer; the qualifications
and identity of Developer and any Owner are of particular concern to the
community and the CRA. Developer further recognizes that it is because of
47
such qualifications and identity that the CRA is entering into this Lease with
Developer, and, in so doing, is further willing to accept and rely on the
obligations of Developer for the faithful performance of all undertaking and
covenants by it to be performed.
Section 8.3 Transfers. Developer, on behalf of itself and any and all
Owners, represents and warrants that neither Developer nor any Owner has
made, created or suffered any Transfers. Except as permitted pursuant to
subparagraphs (a) through (i) hereof, no Transfer may be made, suffered or
created by Developer or any Owner. The following Transfers shall be
permitted hereunder:
(a) Any Transfer by Leasehold Mortgage to a Lender/Investor
or to an agent, designee or nominee of a Lender/Investor or pursuant to a
Financing Sublease, pursuant to Article IX.
(b) Any transfer directly resulting from the foreclosure of a
Leasehold Mortgage or the granting of a deed in lieu of foreclosure of a
Leasehold Mortgage or any Transfer made by the purchaser at foreclosure of
a Leasehold Mortgage or by the grantee of a deed in lieu of foreclosure of a
Leasehold Mortgage, provided that such purchaser or grantee is a
Lender/Investor or and agent, designee or nominee of a Lender/Investor, and
that such purchaser or grantee within ninety (90) days after taking
possession of the Project, shall have entered into and Acceptable Developer's
Agreement as described in Section 9(c)(iv) of this Lease.
(c) Any Transfer directly resulting from a conveyance to a
Lender/Landlord of the Developer's interest provided that such Transferee,
within thirty (30) days after taking possession of the Project, shall have
entered into an Acceptable Developer's Agreement as described in Section
9(c)(iv) of this Lease.
(d) From and after the date that the entire Project has been
completed as evidenced by the issuance of certificates of occupancy for all
units comprising the Project, any Transfer to (i) an Acceptable Developer
48
consented to by the Executive Director and the CRA Board or (ii) a purchaser
having a good reputation and financial resources in the sole opinion of the
Executive Director and the CRA Board to own the Project (an "Acceptable
Purchaser") that shall have entered into an Acceptable Developer Agreement
with an Acceptable Developer.
(e) Any Transfer to a limited liability company, joint venture,
general or limited partnership, joint stock association or Massachusetts
business trust, of a substantial interest in which is held by Developer and
other interests in which are held by a Lender/Investor or by such other
persons, firms, corporations, or other entities as to which the Executive
Director shall have given his approval in his sole discretion, provided that,
within thirty (30) days after gaining possession of the Project, the Transferee
shall have entered into an Acceptable Developer's Lease as described in
Section 9.1(c)(iv) of this Lease.
(f) Any Transfer by a limited partner, which is consented to
by the Executive Director, which consent shall not be unreasonably withheld.
(g) Any Transfer resulting from the death or dissolution of an
Owner provided that same does not result in the dissolution or termination of
Developer or any General Partner of Developer.
(h) Any Transfer by an Owner who is a limited partner of
Developer into a charitable trust, a blind trust or for estate planning
purposes for the immediate family.
(i) Any Transfer pursuant to Section 718.301, Florida
Statutes, from Developer to a condominium association which has as its
membership, or a portion thereof, owners of the Developer Improvements.
Any consent to a Transfer shall not waive any of the CRA's
rights to consent to a subsequent Transfer. Any Transfer made in violation of
the terms hereof shall be null and void and of no force and effect.
Notwithstanding anything contained herein to the contrary, any
transfer of the Leased Property or any portion thereof, shall be deemed null
49
and void, unless said transfer of the Leased Property or any portion thereof
occurs subsequent to the completion of the entire Project as evidenced by the
issuance of certificates of occupancy for all of the units comprising the
Project.
Section 8.4 Notice of Transfer: Information as to Partners and
Shareholders.
(a) With respect to any Transfer which must be approved by
the CRA, Developer shall give or cause to be given to the CRA written notice
(including all information necessary for the CRA to make an evaluation of the
proposed Acceptable Developer according to the requirements of this Lease)
or any Transfer of which Developer or its officers shall have knowledge, not
less than thirty (30) days prior to any such proposed Transfer and the CRA
shall within fifteen (15) days of its receipt of such information, advise
Developer if it shall consent to same. If the CRA shall not consent to a
Transfer, the Executive Director shall state the reasons for such disapproval
in his notice to Developer withholding his consent. If the CRA is not required
to consent to a Transfer pursuant to the terms hereof, Developer shall notify
the CRA in writing of such a Transfer within fifteen (15) days after the date
of such Transfer and provide the CRA with specific details related thereto.
(b) Developer shall, from time to time throughout the term of
this Lease, as the CRA shall reasonably request, furnish the CRA with a
complete statement, subscribed and sworn to by the President or Vice -
President and the Secretary or Assistant Secretary of the General Partner of
Developer, setting forth the full names and address of holders of ownership
interests in Developer, or any general partners or partners of Developer or
the amount of stock of any partner of Developer and the extent of its
holdings, and in the event any other parties have a beneficial interest in such
interests, their full names and addresses and the extent of such interest as
determined or indicated by the records of Developer. Notwithstanding the
foregoing, the information required by this subparagraph (b) shall not be
50
required to be furnished with respect to the shareholders of any owner or
partner whose shares are publicly traded.
Section 8.5 Effectuation of Certain Permitted Transfers. No Transfer
of the nature described in Section 8.3(d) through (h) shall be effective unless
and until the entity to which such Transfer is made, by instrument in writing
satisfactory to the Executive Director and in a form recordable among the
public records, shall, for itself and its successors and assigns, and
particularly for the benefit of the CRA, expressly assume all of the obligations
of Developer under this Lease and agree to be subject to all conditions and
restrictions to which Developer is subject; provided, however, that any
Lender, Leasehold Mortgagee, Lender/Landlord transferee shall not be
required to assume any personal liability under this Lease with respect to
any matter arising prior to or subsequent to the period of such transferee's
actual ownership of the leasehold estate created by this Lease (it being
understood, nevertheless, that the absence of any such liability for such
matters shall not impair, impede or prejudice any other right or remedy
available to the CRA for default by Developer);. and provided further, that the
fact that any such transferee of, or any other successor in interest whatsoever
to, the leasehold estate in the Leased Property or the Developer
Improvements, or any part thereof, shall whatever the reason, not assume
such obligations or so agree, shall not (unless and only to the extent
otherwise expressly provided in this Lease or agreed to in writing by the
CRA) relieve or except such transferee or successor of or from such
obligations, conditions or restrictions, or deprive or limit the CRA of or with
respect to any rights, remedies or controls with respect to the leasehold estate
in the Leased Property or the construction of the Developer Improvements.
Section 8.6 Transfer of CRA Interest.
8.6.1 Conveyance of Title. Developer acknowledges that the
CRA at its sole and absolute discretion may transfer and convey its interest
in the Land, subject to the terms and provisions of this Lease, in whole or in
51
part at any time to any person or entity which has the ability, as determined
by the CRA Board, to fulfill the duties and obligations of the CRA under the
terms of this Lease and which Purchaser shall expressly agree to assume the
obligations of the CRA under this Lease.
8.6.2 Termination of CRA. Developer acknowledges that the
CRA will terminate and cease to exist on September 30, 2013, unless the
term of the CRA is extended by the County. Upon the termination of the
CRA, it is understood that the CRA will transfer all of its right, title and
interest in the Land and this Lease to the City. Upon such transfer, all
references in this Lease to approval by the Executive Director shall signify
the approval by the City Manager and all references in this Lease to approval
of the CRA Board shall be deemed to be references to approval by the City
Commission.
Section 8.7 Subletting. Developer shall promptly provide to the CRA
a copy of all Subleases for the Project. Developer shall incorporate in all
Subleases provisions concerning rental and expenses that are compatible
with this Lease. After the Developer Improvements have been completed on
the portion of the Leased Property which the Developer desires to Sublease,
Developer shall have the right, to enter into Subleases of any part of the
Leased Property or Developer Improvements with such Subtenants approved
by the CRA and upon such commercially reasonable terms and conditions as
Developer shall approve, in its sole discretion. Notwithstanding anything
contained herein to the contrary, the Developer shall not enter into any
Sublease with any Subtenant which does not deal with Developer at arm's
length without first obtaining Executive Director's approval, which approval
of the Executive Director may be withheld, in its sole discretion. If Developer
shall contemplate making any Sublease with respect to which the Executive
Director's approval is required pursuant to the foregoing sentence, Developer
shall submit to the Executive Director a copy of such proposed Sublease
together with any information concerning the identity of the Subtenant as
52
the Executive Director may reasonably request. Within thirty (30) days after
submission of such proposed Sublease and requested information, the
Executive Director shall notify Developer whether the proposed sublease is
approved. In the event the Executive Director shall fail to so respond within
thirty (30) days after submission of such Sublease and information, the same
shall be conclusively deemed to have been approved by the Executive
Director. No sublease shall be permitted with respect to a Phase which has
not been completely developed as evidenced by certificates of occupancy for
all units comprising the Phase.
ARTICLE IX
MORTGAGE FINANCING: RIGHTS OF MORTGAGEE
Section 9.1 Leasehold Mortgage.
(a) Notwithstanding the provisions set forth in. Article VIII
hereof regarding any transfer or assignment of this Lease, but subject to the
provisions of this Article IX, provided that an Event of Default has not
occurred and is not continuing, Developer shall have the right at any time
and from time to time to encumber the leasehold estate created by this Lease
and any improvements by Mortgage, Sale-Subleaseback transaction, deed of
trust or other security instrument, including, without limitation, an
assignment of the rents, issues and profits from the Project to secure
repayment of a loan or loans (and associated obligations) made to Developer
by a Lender/Investor (as defined below) for the sole purpose of securing the
financing of the construction of any Developer Improvements made pursuant
to the terms of this Lease or for the long-term financing or refinancing of any
such Developer Improvements. In no event may the amount of such
financing or refinancing exceed the Developer Costs. Developer shall submit
all documents pertaining to new mortgage loans or encumbrances on the
leasehold estate to CRA for its approval. The CRA shall review and approve
same within thirty (30) days of receipt if the terms are substantially
53
consistent with customary loan documents. The CRA however, may not
approve the loan if the terms materially conflict or modify this Lease.
Developer shall deliver to CRA promptly after execution by Developer a true
and verified copy of any Leasehold Mortgage (as defined below), or any
Financing Sublease and any amendment, modification or extension thereof,
together with the name and address of the owner and holder thereof.
Developer may not encumber the leasehold estate created by this Lease as
security for any indebtedness of Developer with respect to any other property
now or hereafter owned by Developer.
(b) For purposes of this Article IX, "Lender/Investor" shall
mean any national bank organized under the laws of the United States or
any commercial bank, or any savings and loan association, savings bank,
trust company or insurance company organized under the laws of the Unit',:!
States or any state of the United States, or any pension, retirement of
welfare trust or fund supervised by a government authority of any state or
the United States or any such trust or fund administered by an entity which
is supervised by a governmental authority; "Leasehold Mortgage" shall roe,e
a mortgage, deed of trust or assignment of the rents, issues and profits thin
the Project, which constitutes a lien on the leasehold estate created by this
Lease and on the interest of Developer in any Developer Improvernerit:
during the term of this Lease; and "Lender" shall mean a Lenderflnvestoi
who is the owner and holder of a Leasehold Mortgage, provided, however,
that the CRA shall have no duty or obligation to determine independently th
relative priorities of any Leasehold Mortgages, but shall be entitled to rol:
absolutely upon a preliminary title report current as of the time of silr
determination of the priorities of such Leasehold Mortgage and prepared by .�
generally -recognized title insurance company doing business in Miami-1 it) t,
County, Florida.
(c) During the continuance of any Leasehold Mortgage l ! n,
such time as the lien of any Leasehold Mortgage has been extinguished, ,n.,:i
54
if a true and verified copy of such Leasehold Mortgage shall have been
delivered to the Executive Director together with a written notice of the name
and address of the owner and holder thereof as provided in Section 9.1(a)
above which has previously been approved by the CRA:
(i) The CRA shall not agree to any mutual termination
nor accept any surrender of this Lease (except upon the expiration of the full
term of this Lease) nor shall the CRA consent to any material amendment or
modification of this Lease or waive any rights or consents it may be entitled
to pursuant to the terms hereof, without the prior written consent of Lender.
(ii) Notwithstanding any default by Developer in the
performance or observance of any covenant, condition or Lease of this Lease
on the part of Developer to be performed or observed, the CRA shall have no
right to terminate this Lease even though an Event of Default under this
Lease shall have occurred and be continuing, unless and until the Executive
Director shall have given Lender written notice of such Event of Default or to
acquire Developer's leasehold estate created hereby or to commence
foreclosure or other appropriate proceedings in the nature thereof, all as set
forth in, and within the time specified by this Article IX.
(iii) Subject to the provisions of subparagraph (iv)
immediately below, Lender shall have the right, but not the obligation, at any
time prior to termination of this Lease to pay all of the Annual Rental or any
Additional Rental due hereunder, to provide any insurance, to pay any taxes,
to pay any Public Charges and make any other payments, to make any
repairs and improvements, to continue to construct and complete the
Developer Improvements, and do any other act or thing required of Developer
hereunder, and to do any act or thing which may be necessary and proper to
be done in the performance and observance of the covenants, conditions and
agreements hereof to prevent the termination of this Lease, All payments so
made and all things so done and performed by Lender shall be as effective to
55
prevent a termination of this Lease as the same would have been if made
done and performed by Developer instead of by Lender.
(iv) Should any Event of Default under this Lease
occur, Lender shall have ninety (90) days after receipt of notice from the
Executive Director setting forth the nature of such Event of Default, to
remedy same and, if the Event of Default is such that possession of the
Project may be reasonably necessary to remedy the Event of Default, Lender
shall, within such ninety (90) day period, commence and diligently prosecute
a foreclosure action or such other proceeding as may be necessary to enable
Lender to obtain such possession, provided that (a) Lender shall have fully
cured any Event of Default in the payment of any monetary obligations of
Developer under this Lease within such ninety (90) days and shall continue
to pay currently such monetary obligations as and when the same are due; (b)
Lender shall within six (6) months of the date that it takes possession of the
Leased Property enter into an Lease on terms and conditions reasonably
acceptable to the CRA with an Acceptable Developer for the continued
operation of the Project (hereinafter called "Acceptable Developer's
Agreement"); and (c) Lender shall have acquired Developer's leasehold estate
created hereby or commenced foreclosure or other appropriate proceedings in
the nature thereof within such ninety (90) day or period or prior thereto, and
shall be diligently and continuously prosecuting any such foreclosure
proceedings to completion. All rights of the CRA to terminate this Lease as
the result of the occurrence of any such Event of Default shall be subject to
and conditioned upon the Executive Director having first given Lender
written notice of such Event of Default and Lender having failed to remedy
such default or acquire Developer's leasehold estate created hereby or
commence foreclosure or other appropriate proceedings in the nature thereof
as set forth in and within the time period specified by this subparagraph (iv).
(v) An Event of Default under this Lease which in the
nature thereof cannot be remedied by Lender shall be deemed to be remedied
56
if (a) within ninety (90) days after receiving written notice from the Executive
Director setting forth the nature of such Event of Default, Lender shall have
acquired Developer's leasehold estate created hereby or commenced
foreclosure or other appropriate proceedings in the nature thereof; (b) Lender
shall diligently and continuously prosecute any such proceedings to
completion; (c) Lender shall have fully cured any Event of Default in the
payment of any monetary obligations of Developer under this Lease which do
not require possession of the Project within such ninety (90) day period and
shall thereafter continue to faithfully perform all such monetary obligations
which do not require possession of the Project; and (d) within six (6) months
after Lender shall have gained possession of the Project. Lender shall have
entered into an Acceptable Developer's Agreement. Upon the taking of
possession of the Project by Lender, Lender shall perform all of the
obligations of the Developer hereunder as and when the same are due. Any
Lender or any assignee or successor in interest to a Lender that has taken
possession of the Leased Property must assume all of Developer's obligations
hereunder, including, but not limited to, the construction obligation.
(vi) If the Lender is prohibited by any process or
injunction issued by any court or by reason of any action by any court having
jurisdiction of any bankruptcy, debtor rehabilitation or insolvency
proceedings involving Developer from commencing or prosecuting foreclosure
or other appropriate proceedings in the nature thereof, the times specified in
subparagraphs (iv) and (v) above for commencing or prosecuting such
foreclosure or other proceedings shall be extended for the period of such
prohibition, provided that Lender shall have fully cured any default in the
payment of any monetary obligations of Developer under this Lease and shall
continue to pay currently such monetary obligations as and when the same
fall due, and provided that Lender shall diligently attempt to remove any
such prohibition.
57
(vii) The Executive Director shall mail to Lender a
duplicate copy by certified mail of any an all notices which the CRA may
from time to time give to or serve upon Developer pursuant to the provisions
of this Lease, and no notice by the Executive Director to Developer hereunder
shall be deemed to have been given unless and until a copy thereof has been
mailed to any Lender which has delivered pursuant to Section 22.5 who has
given notice to CRA pursuant to this Article IX.
(viii) Foreclosure of a Leasehold Mortgage or any sale
thereunder, whether by judicial proceedings or by virtue of any power of sale
contained in the Leasehold Mortgage, or any conveyance of the leasehold
estate created hereby from Developer to Lender by virtue or in lieu of the
foreclosure or other appropriate proceedings in the nature thereof, shall not
require the consent of the CRA or constitute a breach of any provision of or a
default under this Lease. Upon such foreclosure, sale or conveyance, the
CRA shall recognize Lender, or any other foreclosure sale purchaser, as
tenant hereunder except that all obligations on Developer herein contained
shall be binding on the Lender only from and after the date that it shall take
title to the Developer's leasehold estate unless otherwise provided in this
Article IX; provided, that Lender or any such foreclosure sale purchaser must
enter into an Acceptable Developer's Lease, within sixty (60) days of the date
of such foreclosure, sale or conveyance, and further, provided, that in the
event there are two (2) or more Leasehold Mortgages or foreclosure sale
purchasers (whether the same or different Leasehold Mortgages), the CRA
shall have no duty or obligation whatsoever to determine the relative
priorities of such Leasehold Mortgages or the rights of the different holders
thereof and/or foreclosure sale purchasers, in the event Lender subsequently
assigns or transfers its interest under this Lease after acquiring the same by
foreclosure or by an acceptance of a deed in lieu of foreclosure or
subsequently assigns or transfers its interest under any such new lease, and
in connection with any such assignment or transfer Lender takes back a
58
mortgage or deed of trust encumbering such leasehold interest to secure a
portion of the purchase price given Leasehold Mortgage as contemplated
under this Section 9.1. Lender shall be entitled to receive the benefit of this
Article IX and any other provisions of this Lease intended for the benefit of
the holder of a Leasehold Mortgage. Any person or entity to whom this Lease
or any such new lease is assigned must either enter into or assume Lender's
obligations under an Acceptable Developer's Agreement.
(ix) Should the CRA terminate this Lease by reason of
any default by Developer hereunder, the Executive Director shall give notice
thereof to all Leasehold Mortgagees and the Executive Director shall, upon
written request by Lender to the Executive Director received within thirty
(30) days after such termination, execute and deliver a new lease of the
Project to Lender for the remainder of the term of this Lease with the same
covenants, conditions and agreements (except for any requirements which
have been satisfied by Developer prior to termination) as are contained
herein, provided, however, that the CRA's execution and delivery of such new
lease of the Project shall be made without representation or warranty of any
kind or nature whatsoever, either express or implied, including without
limitation, any representation or warranty regarding title to the Project or
any Developer Improvements or the priority of such new lease (except as to
actions taken by the CRA during the period commencing on the date of
termination of this Lease and terminating on the date of such new Lease).
The CRA's delivery of any Developer Improvements owned by Developer to
Lender pursuant to such new lease shall be made without representation or
warranties of any kind or nature whatsoever, either express or implied, and
Lender shall take any Developer Improvements "as -is" in their then current
condition. Upon execution and delivery of such new lease, Lender at its sole
cost and expense shall be responsible for taking such action as shall be
necessary to cancel and discharge this Lease and to remove Developer named
herein and any other occupant from the Project. The CRA's obligation to
59
enter into such new lease of the Leased Property with the Lender shall be
conditioned upon Lender having remedied and cured all monetary defaults
hereunder and having remedied and cured or has commenced and is
diligently completing the cure of all non -monetary defaults of Developer
susceptible to cure by any party other than by Developer. If the CRA receives
written requests in accordance with the provisions of this Section 9.1(c)(ix)
from more than one Leasehold Mortgagee, the CRA shall only be required to
deliver the new lease to the Leasehold Mortgagee who is, among those
Leasehold Mortgagees requesting a new lease, the holder of the most junior
Leasehold Mortgage, provided that such Leasehold Mortgagee shall, not later
than the execution of such new lease, either (a) pay in full the sums secured
by any or all Leasehold Mortgages which are prior in lien to the Leasehold
Mortgage held by such Leasehold Mortgagee, or . (b) agree to reinstate the
liens of any or all Leasehold Mortgages which are prior in lien to the
Leasehold Mortgage held by such Leasehold Mortgagee with the same
relative priority as existed prior to the termination of this Lease. If any
Leasehold Mortgage having the right to a new lease pursuant to this Section
9.1(c)(ix) shall elect to enter into a new lease but shall fail to do so or shall
fail to take the action required above, the CRA shall so notify all other
Leasehold Mortgagees (if any) and shall afford such other Leasehold
Mortgagee a period of sixty (60) days from such notice within to elect to
obtain a new lease in accordance with the provisions of this Section. Except
for any liens reinstated pursuant to this Section, any new lease entered into
pursuant to this Section shall be prior to any mortgage or other lien, charge
or encumbrance on the fee of the Leased Property or the improvements and
shall have the same relative priority in time as this Lease and shall have the
benefit of all of the right, title, powers and privileges of Developer hereunder
in and to the Leased Property and the Developer Improvements. At
Developer's request, the CRA will enter into an agreement with any
60
Leasehold Mortgage granting to the Leasehold Mortgagee the rights set forth
in this Article.
(x) The CRA and Developer shall cooperate in
including in this Lease, by suitable amendment, from time to time, any
provision which may be requested by any proposed Lender, or may otherwise
be reasonably necessary, to implement the provisions of this Article IX;
provided, however, that any such amendment shall not in any way affect the
term hereby demised nor affect adversely in any material respect any rights
of the CRA under this Lease.
(x) All rights and benefits afforded to a Leasehold
Mortgagee hereunder shall also be afforded to a party providing financing to
Developer pursuant to a Financing Sublease, which Financing Sublease has
been approved by the CRA in the same manner that a Leasehold Mortgage is
approved pursuant to this Article IX.
Section 9.2 No Waiver of Developer's Obligations or CRA's Rights.
Nothing contained herein or in any Leasehold Mortgage shall be deemed or
construed to relieve Developer from the full and faithful observance and
performance of its covenants, conditions and agreements contained herein, or
from any liability for the non -observance or non-performance thereof, or to
require or provide for the subordination to the lien of such. Leasehold
Mortgage of any estate, right, title or interest of the CRA in or to the Project
or this Lease.
ARTICLE X
TAX INCREMENT FUNDS
[THIS ARTICLE MAY BE REMOVED FROM THE LEASE IN THE
EVENT THE CITY ATTORNEY DETERMINES THE PROPOSED USE
OF INCREMENTAL TIF IS NOT IN ACCORDANCE WITH
APPLICABLE LAW]
61
Section 10.1 Incremental Increase In Tax Increment Funds. Subject to
Sections 10.2, 10.3 and 10.5 below, the CRA covenants and agrees to make
available to Developer one hundred percent (100%) of the incremental
increases in tax increment funds actually received by the CRA form the
County and the City generated by the increase above the assessed value for
the Leased Property and the Developer Improvements constructed thereon
over and above the assessed value for the Land set forth in the Miami -Dade
County ad valorem tax rolls for the year 2005 ("Incremental TIF") for
qualifying uses under applicable laws for use of tax increment funds until
September 30, 2013. The CRA covenants and agrees to make the
Incremental TIF available to Developer within sixty (60) days of the CRA's
actual receipt of the Incremental TIF from the County and the City to be
utilized by Developer for qualifying uses permitted under applicable law for
use of tax increment funds with respect to the Project, and at the election of
Developer, within the Overtown project area, identified on Exhibit "O"
attached hereto (the "Overtown Project Area"). Developer acknowledges that
the County and the City withhold from the tax increment funds an
administrative fee and funds for the Children's Trust.
Section 10.2 Use of Incremental TIF. The Developer acknowledges
and agrees that the Incremental TIF may only be utilized in accordance with
qualifying uses under applicable law governing the use of tax increment
funds and that Developer shall not be entitled to, and the CRA shall not
disburse any of the Incremental TIF to the Developer unless and until the
Developer has established to the CRA and, to the extent required by law or
the Interlocal Agreement, the County that the use of the Incremental TIF
proposed by the Developer is permissible. The Developer shall submit to the
CRA and, to the extent required by law or the Interlocal Agreement, the
County, any and all documentation that the CRA and/or the County may
request to establish that the proposed use of the Incremental TIF qualifies for
such use under applicable laws governing the use of tax increment funds.
62
Developer further acknowledges that all Incremental TIF shall be used solely
in connection with the development of the Project or within the Overtown
Project Area.
Section 10.3 Failure to Qualify. To the extent that Developer is not
able to establish to the CRA, and to the extent required under applicable law
or the Interlocal Agreement, the County that its proposed expenditures of the
Incremental TIF qualifies for use of tax increment funds under applicable
laws with respect to some or all of the Incremental TIF, the CRA agrees to
make such portions of the Incremental TIF funds which Developer is unable
to utilize under applicable laws governing the use of tax increment funds
available for use by any governmental agency which can legally use the
Incremental TIF funds in connection with the Project, which entity is
identified to the CRA by Developer and which entity requests the funds from
the CRA. If Developer is unable to identify such an entity which wants to
utilize the Incremental TIF in connection with the Project, the CRA shall be
entitled to utilize that portion of the Incremental TIF for which Developer is
unable to qualify for use in connection with the Project for improvements
within the Overtown Project Area and the CRA shall not be required to make
such funds available to Developer. Under no circumstances shall the CRA be
obligated to use the Incremental TIF to build a parking garage on the Leased
Property.
Section 10.4 Extension of the CRA. The Developer acknowledges that
it will have no right to receive any Incremental TIF after the expiration of the
CRA which is to occur on September 30, 2013. In the event that the duration
of the CRA is extended, the Developer acknowledges that notwithstanding
the extension of the term of the CRA, the CRA is not obligated to pay to the
Developer any Incremental TIF generated from and after September 30,
2013. In the event the term of the CRA is extended beyond September 30,
2013, the Developer shall have the right to request that the CRA pay to the
Developer all or a portion of the Incremental TIF generated by the Project
63
after September 30, 2013, which request shall be treated like that of any
.other property owner within the CRA Redevelopment Area. The Executive
Director shall present such request to the CRA Board for consideration with
the recommendation that the Executive Director deems appropriate under
the circumstances. The CRA Board shall not be obligated to approve the
request or be under any obligation to Developer as a result of the payment of
the Incremental TIF to Developer prior to September 30, 2013.
Section 10.5 Subordination of Incremental TIF. Developer
acknowledges and agrees that the obligation of the CRA to make payments to
Developer contemplated by this Section 10 are junior and subordinate to the
obligations of the CRA to pay debt service with respect to the $11,500,000.00
City of Miami, Florida Community Redevelopment Revenue Bonds, Series
1990, the obligations of the CRA in connection with the Grand Central
Project and the obligations of the CRA to pay debt service on any bonds
issued in the future by the CRA or the City on the CRA's behalf, which are
secured by tax increment funds based upon the estimated tax increment
funds shall not exceed One Hundred Twenty -Five Percent (125%). Under no
circumstances shall the CRA be obligated to make payments to Developer
from its general revenues or any other sources if tax increment revenues are
unavailable after the CRA makes all required payments under any
obligations which are senior to the Incremental TIF.
Section 10.6 Change in Use of Incremental TIF. Developer shall not
be permitted to change the use of the Incremental TIF without the consent of
the Executive Director and the City Attorney, which consent shall not be
granted unless the City Attorney is satisfied that the new use proposed for
the Incremental TIF is a permissible expenditure under applicable laws
governing the use of tax increment funds,
Section 10.7 Indemnification. Developer covenants and agrees to
indemnify, defend and hold the CRA harmless from any loss or damage that
the CRA may sustain, including attorney fees and costs, as a result of the
64
actual use of the Incremental TIF differing from the proposed use of the
Incremental TIF, which was approved by the City Attorney.
ARTICLE XI
REMEDIES
Section 11.1 Events of Default. The occurrence of any of the following
events are hereby defined as an "Event of Default":
(a) Failure - Payment of Money. Failure of Developer to pay
any Rental, Additional Rental or Public Charges or any other payments of
money as herein provided or required, when due and the continuance of such
failure for a period of thirty (30) days after notice thereof in writing.
In the event that any payment or installment of Rental is not
paid to the CRA on the date the same becomes due and payable, Developer
covenants and agrees to pay to the CRA interest on the amount thereof from
the date such payment or installment became due and payable to the date of
payment thereof, at the Default Rate. All other payments of money required
to be paid to the CRA by the Developer under this Lease, including interest,
late fees, penalties and contributions, shall be treated as Additional Rent.
(b) Failure - Performance of Other Covenants, Etc. Failure of
Developer to perform any of the other covenants, conditions and agreements
which are to be performed by Developer in this Lease, including completing
the Developer Improvements within the time frame prescribed in the Project
Schedule, and the continuance of such failure for a period of sixty (60) days
after notice thereof in writing from the Executive Director to Developer
(which notice shall specify the respects in which the CRA contends that
Developer has failed to perform any such covenants, conditions and
agreements), or such longer period of time as is reasonably required (not to
exceed one hundred twenty (120) days) if the default, by its nature, cannot be
cured within the sixty (60) day period provided Developer shall have
commenced the curative action within the sixty (60) day period and
thereafter shall have continued diligently to prosecute all actions necessary
65
to cure such default, until completion but in no event beyond one hundred
twenty (120) days after notice thereof from the CRA.
(c) Bankruptcy, etc.
(i) Borrower files a voluntary petition in bankruptcy
or is adjudicated as bankrupt or insolvent or files any petition or answer
seeking any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under the present or any future
federal, state, or otherstatute or law; or
(ii) If Developer admits its inability to pay its debts, or
if a receiver, trustee or other court appointee is appointed for all or a
substantial part of Developer's property and such appointment is not
discharged within thirty (30) days; or
(iii) If the leasehold interest of Developer is levied upon
or attached by process of law and such levy or attachment is not discharged
or released within thirty (30) days; or
(iv) If Developer makes an assignment for the benefit of
creditors or takes the benefit of any insolvency act, or if any proceedings are
filed by or against Developer to declare Developer insolvent or unable to meet
its debts and such proceedings filed against Developer are not discharged
within thirty (30) days; or
(v) If a receiver or similar type of appointment or court
appointee or nominee of any name or character is made for Developer or its
property and such appointment is not discharged within thirty (30) days; or
(vi) If Developer shall abandon the Leased Property
during the term of this Lease; or
(vii) If Developer shall assign this Lease or sublet any
portion of the Leased Property, except as permitted herein.
Section 11.2 Remedies for an Event of Default. Upon the occurrence of
an Event of Default, the CRA, at any time thereafter, may, upon written
notice to Developer, and to any Leasehold Mortgagee who has provided notice
66
to the CRA pursuant to Section 9.1(c) stating that this Lease is terminated
upon the date specified in such notice from the CRA to the Developer, as fully
and completely as if the date specified in such notice were the date herein
originally fixed for the expiration of the term of this Lease, and on the date so
specified, Developer shall then quit and surrender the Leased Property to the
CRA. Upon such termination of this Lease, as provided in this Section 11.2,
all rights and interest of Developer in and to the Leased Property, and every
part thereof, shall cease and terminate and the CRA may, in addition to any
other rights and remedies it may have, retain all sums paid to it by Developer
under this Lease. In addition, the CRA may pursue all remedies available at
law or in equity as a result of Developer's breach of the terms and provisions
of this Lease.
Section 11.3 Events of Default - CRA.
(a) Events of CRA Default. The following event is hereby
defined as an "Event of CRA Default": The failure of the CRA to perform any
of the covenants, conditions and agreements of this Lease which are to be
performed by the CRA and the continuance of such failure for a period of
thirty (30) days after written notice thereof from Developer to the CRA
(which notice shall specify the respects in which Developer contends that the
CRA has failed to perform any of such covenants, conditions and agreements)
and unless such Event of CRA Default, by its nature, cannot be cured within
the thirty (30) day period, such additional time as may reasonably be
required to cure same (not to exceed one hundred fifty (150) days), provided
the CRA commences the curative action within such thirty (30) day period
and shall continue diligently to prosecute all actions necessary to cure such
Event of CRA Default until completion but in no event beyond one hundred
fifty (150) days after receipt of notice of default from Developer.
(b) Remedies for an Event of CRA Default. If an Event of
CRA Default shall occur, Developer to the fullest extent permitted by law,
shall have the right to pursue any or all of the following remedies:
67
(i) the right and option to terminate this Lease and all
of its obligations hereunder by giving written notice of such election to the
CRA whereupon this Lease shall terminate as of the date of such notice; or
(ii) the right to a writ of mandamus, injunction or
other similar equitable relief, available to it under Florida law against the
CRA (including any or all of the members of its governing body, and its
officers, agents or representatives); provided, however, that in no event shall
any member of such governing body or any of its officers, agents or
representatives be personally liable for any of the CRA's obligations to
Developer hereunder;
(c) Under no circumstances shall the CRA be liable for
damages as a result of the occurrence of an Event of CRA Default.
Section 11.4 Unavoidable Delay. For the purpose of any of the
provisions of this Lease, the term "Unavoidable Delay" shall mean a delay in
the performance of such obligation which has a reasonably demonstrable
effect on the Project due to area wide strikes, area wide lockouts, acts of God,
inability to obtain labor or materials due to governmental restrictions, enemy
action, civil commotion, fire, unavoidable casualty, hurricanes, earthquakes
or other natural catastrophes, and governmental or court imposed
moratorium or injunction which materially effects Developer's construction of
the Developer Improvements and other similar causes beyond the reasonable
control of the party (specifically excluding said parties solvency or financial
condition and typical ordinary delays in obtaining permits and other
approvals from governmental authorities). In the event of the occurrence of
any such Unavoidable Delay, the time or times for the performance of the
covenants, provisions and agreements of this Lease, shall be extended for the
period of delay actually caused by the Unavoidable Delay; provided, however,
that the party seeking the benefit of the provisions of this Section shall,
within ten (10) days after such party shall have become aware of such
Unavoidable Delay, give written notice to the other party, stating the event
68
purportedly constituting the Unavoidable Delay and as soon as reasonably
possible thereafter provide written notice to the other party of the additional
period of time required for any performance as a result of the Unavoidable
Delay. The failure to provide such notice shall constitute the waiver of the
right of that party to claim that an Unavoidable Delay has occurred. Any
dispute between the Developer and the CRA as to whether an Unavoidable
Delay has occurred and/or the duration of the delay caused by the
Unavoidable Delay shall be decided by arbitration pursuant to Article XXIII
of this Lease at the request of either party.
Section 11.5 Obligations, Rights and Remedies Cumulative. The
rights and remedies of the parties to this Lease, whether provided by law or
by this Lease, shall be cumulative, and the exercise by either party of any one
or more of such remedies shall not preclude the exercise by it, at the same or
different times, of any other such remedies for the same default or breach or
of any of its remedies for any other default or breach by the other party. No
waiver made by either party with respect to performance, or manner or time
thereof, of any obligations of the other party or any condition to its own
obligation under this Lease shall be considered a waiver of any rights of the
party making the waiver with respect to the particular obligations of the
other party or condition to its own obligation beyond those expressly waived
and to the extent thereof, or a waiver in any respect in regard to any other
rights of the party making the waiver or in regard to any obligation of the
other party.
ARTICLE XII
PROTECTION AGAINST MECHANICS'
LIENS AND OTHER CLAIMS, INDEMNIFICATION
Section 12.1 Mechanics Liens and Payments of Obligations.
12.1.1 Developer to Discharge Contractors Liens. If any such
mechanics liens shall at any time be filed against the Leased Property,
69
Developer shall cause same to be satisfied of record or transferred to bond
within thirty (30) days of recording. Upon Developer's failure to discharge
such lien(s), the CRA, in addition to any other right or remedy that it may
have, may take such action as may be reasonably necessary to protect its
interest and Developer shall pay any amount paid by the CRA in connection
with such action, and all reasonable legal and other costs and expenses
incurred by the CRA in connection therewith (including reasonable counsel
fees, court costs and other necessary disbursements). Any such amounts paid
by the CRA and the amount of any such expenses or costs incurred by the
CRA, if not paid by Developer to the CRA within thirty (30) days after the
date Developer receives written notice from the CRA of the amount thereof
and demand for payment of the same, shall, together with interest thereon at
the Default Rate from the date of the receipt byDeveloper of the aforesaid
written notice and demand to the date of payment thereof by Developer, be
treated as Additional Rental, and shall be payable by Developer to the CRA
within ten (10) days of the receipt of written demand for payment by the
CRA.
12.1.2 Payment of Materialmen and Suppliers. Developer shall
make, or cause to be made, prompt payment of all money due and legally
owing to all persons doing any work or to subcontractors in connection with
the development, construction, equipment, repair or reconstruction of any of
the Developer Improvements required by this Lease to be constructed by
Developer on the Leased Property. Nothing in this subparagraph (b) shall
limit the right of Developer to contest, in good faith, by legal proceedings or
otherwise, whether any amount claimed or alleged to be due and owing to
any such person is legally due and owing and to withhold payment of such
amounts pending resolution of such dispute.
Section 12.2 Indemnity. Notwithstanding any insurance policy or
policies the Developer is required to obtain or currently has in place,
Developer shall indemnify and save harmless the CRA from and against any
70
and all actions, claims or demands, suits at law, in equity or before
administrative tribunals, due to the negligence of Developer, its agents,
servants, employees or contractors arising out of the use or occupancy of the
Leased Property by such persons. Developer shall defend any and all such
actions, claims, demands or suits on behalf of the CRA at Developer's sole
cost and expense.
Section 12.3 CRA Interest in Land. Nothing in this Lease shall be
deemed or construed in any way as constituting the consent of the CRA,
express or implied, by inference or otherwise to any person for the
performance of any labor or the furnishing of any materials nor as giving
Developer right, power, or authority to contract for or permit the rendering of
any services or the furnishing of any materials that would give rise to a
mechanic's or other liens against the Land. The CRA's interest in the Land
shall not be subject to liens for improvements made by Developer, and
Developer shall have no power or authority to create any lien against the
present estate, reversion or other estate of the CRA in the Land as a result of
Developer Improvements made by Developer. All materialmen, contractors,
artisans, mechanics and laborers and other persons contracting with
Developer with respect to the Leased Premises or any part thereof, are
hereby charged with notice that such liens are expressly prohibited and that
they must look solely to the Developer to secure payment for any work done
or material furnished for improvements to the Leased Premises ordered by
Developer.
ARTICLE XIII
INSURANCE
Section 13.1 Insurance Coverage. Beginning on the date of this Lease
and during the term of this Lease, for so long as portions of the Leased
Property are subject to this Lease, Developer, at its sole cost and expense,
shall maintain or cause to be maintained:
71
(a) Property Insurance. Insurance on the Developer
Improvements against All Risks of physical loss or damage, including the
expense of the removal of debris of such property as a result of damage by an
insured peril. Coverage shall be written on as broad an "All Risk" form as is
commercially available. The insurance shall be written on a full replacement
cost basis. A deductible or self -insured loss amount of up to $50,000.00 shall
be permitted. If the policy or policies of insurance contain a co-insurance
requirement, the policy or policies shall contain an agreed amount
endorsement. The term "Developer Improvements", as used in this
paragraph, shall be deemed to include all personal property furnished or
installed on the Leased Property and owned by the Developer, and the
insurance herein provided shall cover the same.
During the construction period, property insurance may be
provided on a Completed Value Builder's Risk form. The CRA and Developer
shall be listed as named insured on such Builder's Risk Policy. The Builder's
Risk Policy shall include the following endorsements: (i) All Risk form;
(ii) Non -Reporting form — completed value; (iii) Specific Coverage (project
location and description); (iv) loss or damage to building material and
property of every kind and description, including insured's property to be
used in, or incidental to construction; (v) Business Interruption; (vi) Boiler
and Machinery; (vii) Transit; (viii) Foundation coverage; (ix) Scaffolding and
Forms coverage; (x) Plans, Blueprints and Specifications coverage;
(xi) Collapse; (xii) Flood, including inundation, rain, seepage and water
damage; (xiii) Earthquake; (xiv) Subsidence; (xv) Windstorm, including
hurricane; (xvi) freezing and temperature extremes or changes coverages;
(xvii) Ordinance or Building Laws; (xviii) Theft or Burglary; (xix) coverage for
loss arising out of Faulty Work or Faulty Materials; (xx) coverage for loss
arising out of Design Error or Omission; (xxi) Testing; (xxii) Debris Removal;
(xviii) Soft (additional financing) Cost Coverage; (xxiv) Replacement Cost
72
Valuation; (xxv) coinsurance requirements waived; and (xxvi) maintenance of
insurance coverage through warranty period.
The adequacy of the Insurance coverage may be reviewed and
modified periodically by the Executive Director at his discretion. Any review
by the Executive Director shall not constitute an approval or acceptance of
the amount of insurance coverage. In the event the Executive Director deems
the insurance coverage to be inadequate, the Executive director shall inform
Developer of the necessary coverages and Developer shall obtain such
coverage within thirty (30) days of such request. In the event of a loss and
the insurance reimbursements are inadequate to rebuild and restore the
damaged Developer Improvements to substantially their previous condition
before an insurable loss occurred, and the cause of the deficiency in insurance
proceeds is the failure of the Developer to adequately insure the Developer
Improvements as required by this Lease, Developer must nevertheless
rebuild and restore such Developer Improvements pursuant to the terms
hereof and must pay the entire cost of same notwithstanding the fact that
such insurance proceeds are inadequate.
(b) Automobile Liability Insurance. Automobile liability
insurance and equivalent policy forms covering all owned, non -owned, and
hired vehicles used in connection with any work arising out of this Lease.
Such insurance shall afford protection to at least a combined single limit for
bodily injury and property damage liability of $1,000,000 per occurrence.
Any review by the Executive Director shall not constitute an approval or
acceptance of the amount of insurance coverage. The CRA shall be included
as an additional named insured. The automobile liability insurance shall
include an endorsement including employees as included insured and a
waiver of subrogation endorsement.
(c) Liability Insurance. Comprehensive General Liability,
including contractual liability, products and completed operations, or an
equivalent policy form providing liability insurance against claims for
73
personal injury or death or property damage, occurring on or about the
Leased Property, the Developer Improvements, or any elevator, escalator, or
hoist thereon. Such insurance shall afford protection to at least a combined
single limit for bodily injury and property damage liability of $1.,000,000.00
per occurrence, with General aggregate limit of $2,000,000.00;
Products/Completed Operations aggregate limit of $2,000,000.00, and
Personal and Advertising Injury Limits of $1„000,000.00. The General
Liability policy shall include the following endorsements: (i) City of Miami
included as an additional insured; (ii) Products/Completed Operations
coverage shall be kept in force for a period of not less than three years from
the date of which the work was performed; (iii) employees included as
insured; (iv) Independent Contractors coverage; (v) Contractual Liability;
(vi) Waiver of Subrogation; (vii) Premises/Operations; (viii) Care, Custody
and Control Exclusion removed; (ix) Explosion, Collapse and Underground
Hazard; (x) Incidental Medical Malpractice; (xi) Loading and Unloading; and
(xii) Mobile Equipment (Contractors' equipment) whether owned, Iased,
borrowed or rented by the Contractor or employees of the Contractor). Any
review by the Executive Director shall not constitute an approval or
acceptance of the amount of insurance coverage.
It is the CRA's intent that any liability insurance provided
pursuant to this Section shall be deemed primary insurance coverage in the
event of any loss arising from the premises and operations covered by this
Lease.
(d) Worker's Compensation. Worker's Compensation
insurance with limits of liability in compliance with Florida law. For work
that is subcontracted, the Developer shall require the subcontractor to
provide Worker's Compensation insurance for all of the subcontractor's
employees. The Worker's Compensation Insurance shall include waivers of
subrogation endorsements.
74
(e) Employer's Liability. Employer's liability insurance in
the amount of $1,000,000.00 for bodily injury caused by an accident, each
accident; $1,000,000.00 for bodily injury caused by disease, each employee;
and $1,000,000.00 for bodily injury caused by disease, policy limit. The
Employer's Liability insurance policy shall include a waiver of subrogation
endorsement.
(f) Owner's Contractors' Protective Liability. Owner's
Contractors' Protective Liability Insurance in the amount of $1,000,000.00
per occurrence and $1,000,000.00 in the aggregate with the CRA as a named
insured.
(g) Pollution Liability. Pollution liability insurance in the
amount of $1,000,000.00, each pollution incident, with an aggregate loss limit
of $1,000,000.00; an aggregate expense limit of $1,000,000.00; an On -Site
First Party Clean -Up limit of $1,000,000.00; a While in Transit limit of
$1,000,000.00; and an Unnamed Disposal Sites Limit of $1,000,000.00. The
CRA shall be named as a named insured.
(h) Umbrella Policy. Umbrella policy with bodily injury and
property damage liability combined, single limit coverage of $1,000,000.00;
each occurrence of $1,000,000.00; aggregate coverage $1,000,000.00; and
Product/Completed Operations aggregate limit of $2,000,000.00. The
Umbrella Policy shall provide excess coverage over the Commercial General
Liability, the Business Automobile Liability and the Employer's Liability.
(i) Copies. Developer shall furnish Certificates of Insurance
with the CRA named as additional insured for the coverages specified
hereunder which shall clearly indicate that Developer has obtained insurance
in the type, amount and classification's herein required. Copies of all
policies of insurance and renewals thereof shall be furnished to the CRA by
the Developer prior to the effective date thereof. Copies of new or renewal
policies replacing any policies expiring during the term of this Lease shall be
delivered to the CRA at least thirty (30) days prior to the date of expiration of
75
any policy, together with proof satisfactory to the CRA that all premiums
have been paid.
Section 13,2 Responsible Companies - Blanket Insurance Permitted.
A1I insurance provided for in this Article XIV shall be affected under valid
and enforceable policies issued by insurers of recognized responsibility, which
are licensed to do business in the State of Florida. All such companies must
be rated at least "A" as to management, and at least "Class X" as to financial
strength in the latest edition of Best's Insurance Guide, published by Alfred
M. Best Co., Inc. The insurance required by this Article may be part of
another policy or policies of the Developer in which other properties and
locations are also covered so long as the amount of insurance available to pay
losses at this location is at least the minimum required by this Section, and it
cannot be reduced in any manner by losses occurring at other properties or
locations.
Section 13.3 Named Insureds - Notice to CRA of Cancellation. All
policies of insurance described herein shall name Developer and the CRA as
insureds as their respective interests may appear. The policies shall also
name as insured, if required by either party or required pursuant to the
terms of any Leasehold Mortgage or Financing Sublease, any Leasehold
Mortgagee as the interest of any such Leasehold Mortgagee may appear.
Notwithstanding any such inclusion, the parties hereto agree that any losses
under such policy shall be payable, and all insurance proceeds recovered
thereunder shall be applied and disbursed in accordance with the provisions
of this Lease. All insurance policies shall provide that no material change,
cancellation or termination shall be effective until at least thirty (30) days
after receipt of written notice thereof has been received by the CRA.
Section 13.4 CRA May Procure Insurance if Developer Fails to Do So.
In the event Developer at any time refuses, neglects or fails to secure and
maintain in full force and effect any or all of the insurance required pursuant
to this Lease, the CRA, at its opinion, may procure or renew such insurance,
76
and all amounts of money paid therefore by the CRA shall be treated as
Additional Rental payable by Developer to the CRA together with interest
thereon at the Default Rate from the date the same were paid by the CRA to
the date of payment thereof by Developer. The CRA shall notify Developer in
writing of the date, purposes and amounts of any such payments made by it,
which shall be payable by Developer to the CRA within ten (10) days of such
notification.
Section 13.5 Insurance Does Not Waive Developer's Obligations. No
acceptance or approval of any insurance agreement or agreements by the
CRA or the Executive Director shall relieve or release or be construed to
relieve or release Developer from any liability, duty or obligation assumed by,
or imposed upon it by the provisions of this Lease.
Section 13.6 Loss or Damage Not to Terminate Rental or This Lease.
Any loss or damage by fire or other casualty, of or to any of the Developer
Improvements on the Leased Property at any time, shall not operate to
terminate this Lease or to relieve or discharge Developer from the payment of
Rental, or from the payment of any money to be treated as Additional Rent in
respect thereto, pursuant to this Lease, as the same may become due and
payable, as provided in this Lease.
Section 13.7 Proof of Loss. Whenever any Developer Improvements, or
any part thereof, constructed on the Leased Property (including any personal
property furnished or installed in the Developer Improvements) shall have
been damaged or destroyed, Developer shall promptly make proof of loss in
accordance with the terms of the insurance policies and shall proceed
promptly to collect or cause to be collected, all valid claims which may have
arisen against insurers or others based upon any such damage or destruction.
Developer shall promptly give the CRA written notice of such damage or
destruction.
Section 13.8 Property Insurance Proceeds.
77
(a) Authorized Payment. Except as otherwise provided in
Subsection (c) of this Section 13.8, all sums payable for loss and damage
arising out of the casualties covered by the property insurance policies shall
be payable:
(i) Directly to Developer, if the total recovery is equal
to or less than the then fair market value of Developer's property interest
except that if Developer is then in default under this Lease, such proceeds
shall be paid over to the CRA who shall apply the proceeds first to the
rebuilding, replacing and repairing of the Leased Property and then to the
curing of such default. Any remaining proceeds shall be paid over to
Developer;
(ii) To the Insurance Trustee, if the total recovery is in
excess of the amount described in (i) above to be held by such Insurance
Trustee pending establishment of reconstruction, repair or replacement costs
and shall be disbursed to Developer pursuant to the provisions of
subparagraph (b) of this Section 13.8. If at the time such proceeds become
payable, there is a Leasehold Mortgage on the Leased Property, the
Leasehold Mortgagee shall serve as the Insurance Trustee, but if there's no
Leasehold Mortgagee at that time, or if the Leasehold Mortgagee refuses to
serve as Insurance Trustee, the Insurance Trustee shall be such commercial
bank or trust company as shall be designated by Developer and approved by
the Executive Director, which approval shall not be unreasonably withheld or
delayed.
(b) Disposition of Insurance Proceeds for Reconstruction. All
amounts received upon such policies shall be used, to the extent required, the
reconstruction, repair or replacement of the Developer Improvements and the
personal property of Developer contained therein, so that the Developer
Improvements or such personal property shall be restored to a condition
comparable to the condition prior to the loss or damage (hereinafter referred
to as "Reconstruction Work"). From the insurance proceeds received by the
78
Insurance Trustee, there shall be disbursed to Developer such amounts as
are required for the Reconstruction Work. Developer shall submit invoices or
proof of payment to the Trustee for payment or reimbursement in accordance
with an agreed schedule of values approved in advance by the Executive
Director.
Any amount remaining in the hands of the Insurance Trustee
after the completion of the Reconstruction Work shall be paid to Developer.
(c) Lenders and Lender/Landlords May Have Benefit of
Insurance Fund for Reconstruction. In the event Developer, pursuant to any
Leasehold Mortgage or Financing Sublease, shall at any time authorize the
Lenders or Lender Landlords on its behalf or in his stead to enter upon the
Leased Property and undertake or prosecute the reconstruction or repair of
any building on the Leased Property damaged or 'destroyed by fire, or other
insured -against hazard or peril and to have and receive for Developer or
Leasehold Mortgagee use for such purpose such insurance proceeds, then in
that case said insurance proceeds shall beequally available to such
Leasehold Mortgagee as to Developer as provided in Section 13.8(b), and it
shall in like manner and to like extent at the request of any such Leasehold
Mortgagee, be applied to the reconstruction or repair of any such building so
damaged or destroyed.
Section 13.9 Covenant for Commencement and Completion of
Reconstruction. Subject to the provisions of Section 13.1(b) and Section
13.10, Developer covenants and agrees to commence the Reconstruction Work
as soon as practicable but in any event within ninety (90) days after the
insurance proceeds for the destroyed or damaged improvements or personalty
have been received, and to fully complete such Reconstruction Work as
expeditiously as possible consistent with the nature of the damage, but in any
event within twenty-four (24) months from the start thereof; provided, that if
it is not practicable to commence such Reconstruction Work within such
ninety (90) day period, or to complete such Reconstruction Work within such
79
twenty four (24) month period, then such Reconstruction Work may be
commenced and completed within a longer period, provided that such period
shall be approved in writing by the Executive Director after written request
from Developer. As used in the preceding sentence, the term "available net
insurance proceeds" means the sum actually paid by the insurer or insurers
in respect of the claim in question, less all costs and expenses incurred by
Developer or the Insurance Trustee in the collection, holding and
disbursement of same, including (without limitation) reasonable attorney's
fees.
Section 13.10 Developer's Rights In the Event of Uninsured
Major Casualty. In the event any part of the Developer Improvements or the
Leased Property is damaged or destroyed by reason of any casualty which is
not required to be insured against pursuant to Section 13.1 and is not in fact
insured against, then at Developer's option, in lieu of rebuilding, replacing or
repairing the portion of the Developer Improvements or the Leased Property
so damaged or destroyed, Developer may give notice to the CRA, within
thirty (30) days after the occurrence of such damage or destruction, of
Developer's election to terminate this Lease as to the portion of the Developer
Improvements or the Leased Property so damaged or destroyed of Developer's
intention to terminate this Lease, or portion thereof, on any business day
specified in such notice which occurs not less than forty-five (45) or more than
sixty (60) days after such damages or destruction provided that such notice
shall be accompanied by a certificate from Developer, signed by the
appropriate officer or general partner, stating that in the reasonable
judgment of Developer, the Developer Improvements, or portion thereof, and
the Leased Property, or portion thereof, are economically unsuitable for
Developer's continued use and occupancy by reason of such uninsured
damage or destruction. This Lease shall thereupon terminate as to such
portion of the Leased Property on such termination date except that
Developer shall, at its expense, promptly demolish any buildings or other
80
improvements situated on the portion of the Leased Property as to which this
Lease shall have been terminated and shall clear and grade such portion of
the Leased Property prior to the effectiveness of such termination. The CRA
and Developer shall, at the request of either, execute such instruments or
documents as may be reasonably necessary or desirable in order to amend
this Lease to delete such portion of the Leased Property from the description
of the property demised hereby.
ARTICLE XIV
CONDEMNATION
Section 14.1 Entire Leased Property Taken by Condemnation. In the
event that the whole of the Leased Property and Developer Improvements (or
such portion thereof as shall, in the good faith . opinion of the Developer,
render it economically unfeasible to effect restoration thereof) shall be taken
for any public use or purpose by the exercise of the power of eminent domain,
or shall be conveyed by the CRA and Developer and individual owners of
Developer Improvements or portions thereof acting jointly to avoid
proceedings of such taking, the Rental and money to be treated as Additional
Rental pursuant to this Lease and the Public Charges shall be prorated and
paid by the Developer to the date of such taking or conveyance, and this
Lease shall terminate and become null and void as of the date of such taking
or conveyance. The award or awards of damages allowed to the CRA or
Developer or individual owners of Developer Improvements or portions
thereof shall be paid as follows:
First: There shall be paid all expenses, if any, including
reasonable attorney's fees incurred by the CRA and Developer and
individual owners of Developer Improvements or portions thereof in
such condemnation suit or conveyance;
Second: CRA and Developer and individual owners of Developer
Improvements or portions thereof shall be paid portions of the balance
81
of said award or awards which are allocable to and represented by the
value of their respective interest in the Leased Property as found by
the court or jury in its condemnation award or if no such separate
awards are obtained such balance shall be paid to Developer and the
CRA in the same proportion as the then Fair Market Value of each
party's respective interest or estate in the Leased Property and the
Developer Improvements bears to the total Fair Market Value of the
interests and estates of both parties in the Leased Property and
Developer Improvements within thirty (30) days of the time of the
taking.
Section 14.2 Partial Taking of Leased Property by Condemnation.
(a) In the event that less than all of the Leased Property or
Developer Improvements shall be taken for any public use or purpose by the
exercise of the power of eminent domain, or shall be conveyed by the CRA
and Developer and individual owners of Developer Improvements or portions
thereof acting jointly to avoid proceedings of such taking, and Developer shall
be of the good faith opinion that it is economically feasible to effect
restoration thereof then this Lease and all the covenants conditions and
provisions hereunder shall be and remain in full force and effect as to all of
the Leased Property not so taken or conveyed (except as provided in
subsection (b) of this Section 14.2 and in Section 14,3). Developer shall to the
extent condemnation proceeds are made available to it pursuant to the terms
hereof, remodel repair and restore the Developer Improvements so that they
will be comparable to the Developer Improvements prior to the condemnation
taking into consideration the fact of the condemnation; provided, however,
that in so doing Developer shall not be required to expend more than the
amount of any such award actually received by Developer less all costs and
expenses (including reasonable attorney's fees) incurred in the collection of
same.
82
(b) The award or awards of damages allowed to CRA and
Developer and individual owners of Developer Improvements or portions
thereof shall be paid to and received by the parties as follows:
First: There shall be paid all expenses, if any, including
any reasonable attorney's fees incurred by CRA and Developer
and individual owners of Developer Improvements or portions
thereof in such condemnation suit or conveyance;
Second: There shall be paid to the CRA the value of the
portion of the Land so taken which land shall be valued as if
unimproved and unencumbered;
Third: There shall be paid to the Developer the amount
required to complete the remodeling and repairs to the
Developer Improvements pursuant tol(a) above;
Fourth: CRA, Developer and individual owners of
Developer Improvements or portions thereof shall be paid
portions of the balance of said award or awards if any which are
allocable to and represented by the value of their respective
interest in the Leased Property as found by the court or jury in
its condemnation award, or if no such separate awards are
obtained, such balance shall be paid to Developer and the CRA
and individual owners of Developer Improvements or portions
thereof in the same proportion as the then Fair Market Value of
each party's respective interest or estate in the Leased Property
and the Developer Improvements bears to the total Fair Market
Value of the interests and estates of both parties in the Leased
Property and Developer Improvements.
Section 14.3 Adjustment of Rent Upon Partial Taking. In the event a
part of the Leased Property and the Developer Improvements thereon, if any,
shall be taken for any public use or purpose by the exercise of the power of
eminent domain, or shall be conveyed by CRA and Developer and individual
83
owners of Developer Improvements or portions thereof acting jointly to avoid
proceedings of such taking then Rental and money to be treated as Additional
Rental pursuant to this Lease and the Public Charges in respect of such part
of the Leased Property shall be paid by Developer to the date of such taking
or conveyance and after such date the Rent for the remainder of the Leased
Property shall be reduced by such an amount as may be agreed upon in
writing by the parties hereto based upon the square footage of the Land so
taken.
Section 14.4 Taking for Temporary Use or of Leasehold Estate. If, by
the exercise of the power of eminent domain or under threat thereof the
whole or any part of the Leased Property or the Developer Improvements
shall be taken for temporary use or the whole or any part of the leasehold
estate created by this Lease shall be taken all awards or other payments
shall be paid to Developer and individual owners of Developer Improvements
or portions thereof alone except that:
(a) if any portion of any such award or payment on account of
a taking for temporary use is made by reason of any damage to or destruction
of any portion of the Developer Improvements, such portion shall be applied
to pay the cost of restoration; and
(b) if any portion of an award or payment on account of a
taking for temporary use relates to a period beyond the date of expiration of
the term of this Lease, such portion shall be paid to the CRA; and
(c) all payments of Annual Basic Rental, Public Charges and
Additional Rent by the Developer shall continue as if no condemnation had
taken place.
ARTICLE XV
RIGHTS OF OCCUPANCY AND ACCESS,
MAINTENANCE, OWNERSHIP OF DEVELOPER IMPROVEMENTS
84
Section 15.1 Quiet Enjoyment. The CRA represents and warrants that
Developer, upon paying the Rental pursuant to this Lease and observing and
keeping the covenants and agreements of this Lease on its part to be kept
and performed, shall lawfully and quietly hold occupy and enjoy the Leased
Property without hindrance or molestation by the CRA during the term of
this Lease or by any person or persons claiming under the CRA.
Section 15.2 Waste. Developer shall not permit, commit or suffer
waste or impairment of the Leased Property or the Developer Improvements
thereon, or any part thereof.
Section 15.3 Maintenance and Operation of Developer Improvements.
Developer shall at all times keep the Developer Improvements constructed on
the Leased Property and all furnishings located therein in good and safe
condition and repair as other first class projects ,in similar usage are kept
(reasonable wear and tear expected), and in the occupancy, maintenance and
operation of such Developer Improvements, and of the Leased Property, shall
comply with all laws, ordinances, codes and regulations applicable thereto.
Section 15.4 Ownership of Developer Improvements During Lease.
Prior to the expiration or termination of this Lease, title to the Developer
Improvements shall not vest in the CRA by reason of its ownership of fee
simple title to the Leased Property, but title to such Developer Improvements
shall remain in Developer and any individual owners of the Developer
Improvements or portion thereof. Upon the expiration or termination of this
Lease, title to the Developer Improvements shall automatically vest in the
CRA, free and clear of all claims arising by, through or under Developer.
Section 15.5 CRA and Developer to Join in Certain Actions. Within
ten (10) business days after receipt of written request from Developer, the
CRA shall:
(a) Join Developer, when required by law, in any and all
applications for permits, licenses, or other authorizations required by any
governmental or public authority which has jurisdiction in connection with
85
any work as may be reasonably necessary or appropriate for the construction
of the Developer Improvements to be constructed by Developer on the Leased
Property; and
(b) Join Developer in any grants of, or grant such easements
or rights with respect to vehicular access, electric, telephone, gas, water,
sewer, steam and such other public utilities and facilities as may be
reasonably necessary or appropriate for the construction, operation or use of
the Leased Property or any Developer Improvements to be erected by
Developer thereon. Developer shall pay all fees and charges for all such
applications and grants.
ARTICLE XVI
ADMINISTRATIVE EXPENSES
Developer covenants and agrees to reimburse the CRA, on a quarterly
basis, for all out of pocket costs and expenses incurred by the CRA from and
after the execution of this Lease through the completion of construction of the
Project and the sale of the Affordable Units, in connection with overseeing
and monitoring the activities of Developer, pursuant to the terms of this
Lease, and the documents executed in connection herewith, which costs and
expenses shall not exceed Seventy Five Thousand and No/100 Dollars
($75,000.00) per year. The CRA shall submit to Developer, evidence of such
out of pocket expenses not more often than quarterly. Developer shall
reimburse the CRA for such expenses within thirty (30) days of receipt of
such documentation, subject to the annual reimbursement limitation of
Seventy Five Thousand and No/100 Dollars ($75,000.00) per year. If there is
a dispute between Developer and the Executive Director regarding any such
expenses, the dispute shall be submitted to the City Manager for resolution.
The decision of the City Manager shall be binding on the parties. Any
payment not made by Developer within thirty (30) days of when due shall
bear interest at eighteen percent (18%) per annum until paid.
86
ARTICLE XVII
DEVELOPER NOT TO ENCUMBER CRA'S INTEREST
Developer shall have no right or power to, and shall not in any way
encumber the title of the CRA in and to the Land, or the title of the CRA's
remainder or residual interest in the Developer Improvements. The fee
simple estate of the CRA in the Land and the remainder or residual interest
of the CRA in the Developer Improvements shall not be in any way subject to
any claim by way of lien or otherwise, whether claimed by operation of law or
by virtue or any express or implied lease or contract or other instrument
made by Developer and any claim to the lien or otherwise upon the Land or
in the Developer Improvements arising from any act or omission of Developer
shall accrue only against Developer's interest in the Developer.
Improvements.
ARTICLE XVIII
LIMITATION OF LIABILITY
Section 18.1 Limitation of Liability of Developer.
a. General Limitation on Liability. It is expressly
understood and agreed by and between the parties, anything herein to the
contrary notwithstanding, that each and all of the representations,
covenants, undertakings and agreements herein made on the part of
Developer are made and intended not as personal representations, covenants,
undertakings and agreements by the members, officers, agents and investors
of Developer or any officers, agents, shareholders, directors, members,
partners, investors or any other person of any of Developer's constituent
entities or for the purpose or with the intention of binding any of the
foregoing personally; but are made and intended for the purpose of binding
Developer and the leasehold estate created by this Lease.
87
b. Limited Carve -Out. Notwithstanding the
foregoing, in the event of: (i) an actual and intentional fraud committed by
any of Developer's partners or officers in any written documents prepared by
Developer submitted to the CRA or (ii) any misappropriation of insurance
proceeds or condemnation awards by Developer (should same be paid directly
to Developer), any such partners or officers committing the fraud or causing
such misappropriation shall have personal liability to the extent of any actual
damages sustained to the CRA proximately caused by such fraud or
misappropriation, and the property and assets of such partner or officer
committing the fraud or causing the misappropriation shall be subject to levy
of execution or enforcement procedure for the satisfaction of the CRA's
remedies hereunder, but only to the extent that the CRA is unable to look to
the Developer Improvements for recovery of such damages.
Section 18.2 Limitation of Liability of CRA. It is expressly understood
and agreed by and between the parties, anything herein to the contrary
notwithstanding, that each and all of the representations, covenants,
undertakings and agreements herein made on the part of the CRA while in
form purporting to be the representations, covenants, undertakings and
agreements of the CRA are nevertheless, each and every one of them, made
and intended not as personal representations, covenants, undertakings and
agreements by the CRA, or any board member, employee, official,
representative, attorney or agent of the CRA or for the purpose of binding the
CRA's fee simple interest in the Land only. NOTWITHSTANDING
ANYTHING TO THE CONTRARY IN THIS LEASE, NEITHER THE CRA
NOR ANY BOARD MEMBER, EMPLOYEE, OFFICIAL,
REPRESENTATIVE, ATTORNEY OR AGENT OF THE CRA SHALL BE
PERSONALLY LIABLE, DIRECTLY OR INDIRECTLY, UNDER OR IN
CONNECTION WITH THIS LEASE, OR ANY DOCUMENT, INSTRUMENT
OR CERTIFICATE SECURING OR OTHERWISE EXECUTED IN
CONNECTION WITH THIS LEASE, OR ANY AMENDMENTS OR
88
MODIFICATIONS TO ANY OF THE FOREGOING MADE AT ANY TIME
OR TIMES, HERETOFORE OR HEREAFTER, OR IN RESPECT OF ANY
MATTER, CONDITION, INJURY OR LOSS RELATED TO THIS LEASE OR
THE LAND AND ONLY THE CRA'S INTEREST IN THE LAND (OR
PROCEEDS THEREOF) SHALL BE AVAILABLE TO SATISFY ANY
CLAIMS AGAINST THE CRA; AND DEVELOPER AND EACH OF ITS
SUCCESSORS AND ASSIGNEES WAIVES AND DOES HEREBY WAIVE
ANY SUCH PERSONAL LIABILITY. As used in this Lease, the term "CRA"
means only the current owner or owners of the fee title to the Land. Each
successor is obligated to perform the obligations of the CRA under this Lease
only during the time such successor owns such interest or title. Any
successor who transfers its title or interest is relieved of all liability with
respect to the obligations of the CRA under this Lease to be performed on or
after the date of transfer. However, each successor shall deliver to its
transferee all funds previously paid by Developer if such funds have not yet
been applied under the terms of this Lease.
ARTICLE XIX
SURRENDER AND HOLDING OVER
Section 19.1 Surrender at End of Term. Upon the expiration or sooner
termination of this Lease, Developer shall peaceably and quietly leave,
surrender and deliver to the CRA, in their "as is" condition, the entire Leased
Property, together with the following items: (i) the Developer Improvements;
and (ii) all alterations, changes, additions and other improvements made
upon the Leased Property.
Section 19.2 Rights Upon Holding Over. At the expiration of the
Term, or any earlier termination of this Lease, Developer shall yield up
immediate possession of the Leased Property and the Developer
Improvements to the CRA but in the event that Developer fails to do so,
Developer shall pay to the CRA for the whole time such possession is
89
withheld beyond the date of expiration or termination of this Lease a sum per
day equal to two hundred percent (200%) times 1/365th of the aggregate of the
Rent paid or payable to the CRA for the immediately preceding calendar
year.
Section 19.3 No Waiver. The provision of this Article shall not be held
to be a waiver by the CRA of any right of entry or reentry as set forth in this
Lease, nor shall the receipt of a sum, or any other act in apparent affirmance
of the tenancy, operate as a waiver of the right to terminate this Lease for
any breach of Developer under this Lease (subject to any applicable notice
and/or cure periods).
Section 19.4 Survival. The provisions of this Article shall survive the
expiration or earlier termination of this Lease.
ARTICLE XX
ENVIRONMENTAL LIABILITY
Section 20.1 Definition of Terms. For purposes of this Article ,XX, the
following terms shall have the meanings attributed to them in this Section:
a. "Hazardous Materials" means (1) petroleum and its
constituents; (ii) radon gas, asbestos in any form which is or could become
friable, urea formaldehyde, foam insulation, transformers or their shipment
which contain dielectric fluid containing levels of polychlorinated biphenyls
in excess of federal, state or local safety guidelines, whichever are more
stringent; (iii) any substance, gas, material or chemical which is or may
hereafter be defined as or included in the definition of "hazardous
substances," "hazardous materials," "hazardous wastes," "pollutants or
contaminants," "solid wastes" or words of similar import under any
Environmental Law; and (iv) any other chemical, material, gas or substance,
the exposure to or release of which is regulated by any governmental
authority.
90
b. "Environmental Laws" means all applicable
requirements relating to the protection of human health or the Environment,
including, without limitation, requirements relating to reporting, licensing,
permitting, investigation and remediation of any Release or Threat of Release
of Hazardous Materials, into the Environment, or relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Materials or pertaining to the protection
of the health and safety of employees or the public, as such requirements are
contained in all applicable federal, state and local environmental, public
health, and safety laws, regulations, orders, permits, licenses, approvals,
ordinances and directives, now or hereafter in effect, including, but not
limited to, all applicable requirements of the Clean Air Act (42 U.S.C. §7401
et sea.); the Clean Water Act; the Resource Conservation, and Recovery Act,
as amended by the hazardous and Solid Waste Amendments of 1984 (42
U.S.C. §6901 et sea.); the Safe Drinking Water Act; the Comprehensive
Environmental Response, Compensation and Liability Act, as amended by
the Superfund Amendments and Reauthorization Act of 1986 (42 U.S.C.
§9061 et sea.); the Hazardous Materials Transportation Act (49 U.S.C. §1801
et seq.); the Occupational Health and Safety Act; the Toxic Substances
Control Act; the Federal Water Pollution Prevention and Removal Act, as
amended (33 U.S.C. §1251 et seq.); the Florida Pollutant Discharge
Prevention and Removal Act (Florida Statutes, Chapter 376); the Water
Resources Drinking Water Act; Florida Environmental Reorganization Act of
1975 (Florida Statutes, Chapter 403).
c. "Environment" means soil, surface waters,
groundwaters, land, stream sediments, surface or subsurface strata and
ambient air.
d. "Costs" means all costs incurred in connection with
correcting any violations of any Environmental Laws.
91
e; "Release" means any releasing, seeping, spilling,
leaking, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, disposing, or dumping into the Environment.
f. "Threat of Release" means a substantial likelihood
(as determined by an environmental consultant selected by Developer and
reasonably acceptable to the CRA) of a Release which requires action to
prevent or mitigate damage to the Environment which may result from such
Release.
g. "Clean Up" means any remediation and/or disposal
of Hazardous Materials at or from the Leased Property which is ordered by
any federal, state, or local environmental regulatory agency, if necessary, to
avoid injury to persons or property.
Section 20.2 Environmental Obligations of Developer. Developer
hereby covenants and agrees that during the Term it shall not: (a) cause or
permit any Hazardous Materials to be generated, produced, brought, used,
stored, treated, discharged, released, spilled or disposed of upon, in, under or
about the Leased Property by Developer or any of Developer's tenants, or by
any subsidiaries, assignees or invitees thereof, or by any of the employees,
agents, contractors or subcontractors of any of the foregoing (all the foregoing
collectively, "Related Parties"), which is, in any case, in violation of the
Environmental Laws, or (b) otherwise cause or permit the violation of any
Environmental Law in connection with the Leased Property. Upon
termination of expiration of the Lease, Developer shall, at is sole cost and
expense, cause all Hazardous Materials, including their storage devices,
placed in or about the Leased Property by Developer or its Related Parties, or
at their direction to be removed from the Leased Property and transported for
use, storage or disposal in accordance and compliance with all applicable
Environmental Laws.
Section 20.3 Developer's Liability for Contamination During Lease
Term. Developer shall undertake at Developer's sole cost and expense, any
92
necessary action, including any remediation and/or disposal reasonably
required, as determined by Developer in good faith, as a result of a Release of
a Hazardous Material occurring on or from the Leased Property in connection
with any activity or acts of Developer or any of its Related Parties, during the
Term.
Section 20.4 Indemnity. Developer shall defend, indemnify, and hold
harmless the CRA and its agents, officials, and employees, to the fullest
extent permitted by law, from and against all expenses of remediation,
disposal or other similar type of clean up or action necessary for compliance
with the Environmental Laws, and any and all claims, causes of action, or
demands, in law or in equity, including, but not limited to, all lien claims,
administrative claims, claims for injunctive relief, claims of property damage,
natural resources damages, environmental response and clean up costs, fines,
penalties, and expenses (including, without limitation, counsel fees,
consultant fees and expert fees, costs and expenses incurred in investigation
and defending against the assertion of such liabilities), which may be
sustained, suffered or incurred by the CRA, its agents, officials or employees
in connection with failure by Developer or its Related Parties to fully comply
with the provisions of this Article. The parties acknowledge and agree that
the indemnification provided above in this Section is conditioned upon the
failure of Developer to fully comply with the provisions of this Article and
that such indemnification does not cover any costs of clean-up required by the
presence of any Hazardous Materials on the Leased Property resulting solely
from the acts or negligence of any third party or parties other than Developer
or the Related Parties.
Section 20.5 Notices. If Developer or the CRA receives any written
notice of a Release, Threat of Release or environmental condition at the
Leased Property or a written notice with regard to air emissions, water
discharges, noise emissions, recycling, or any violation of any Environmental
Law (any such notice, an "Environmental Complaint") independently or by
93
notice form any governmental authority, or with respect to any litigation
regarding environmental conditions at or about the Leased Property, then
such party shall give prompt written notice of the same to the other party
detailing all relevant facts and circumstances.
Section 20.6 CRA's Remedies. Promptly after becoming aware of any
violation of any Environmental Law at the Leased Property, Developer shall
commence to remediate in accordance with its obligations hereunder and
thereafter diligently pursue the completion thereof in a reasonable time (and
in any event in accordance with Environmental Laws). If Developer fails to
do so, the CRA may give written notice of such failure to Developer, and if
such failure continues for five (5) days after Developer receives such notice,
the CRA shall have the right, but not the obligation, to enter onto the Leased
Property and to take such action as it reasonably deems necessary or
advisable to clean-up, remove, resolve or minimize the impact of or otherwise
deal with any Hazardous Materials, Release, Threat of Release or
Environmental Complaint upon its obtaining knowledge of such matters
independently or by receipt of any notice from any person or governmental
authority, and all of the reasonable costs and expenses of the CRA in
connection therewith shall be deemed to be additional Rent due from the
Developer to the CRA hereunder.
ARTICLE XXI
INDEMNIFICATION AND RELEASE OF CRA
Section 21.1 General Indemnification of CRA Without Limitation of
Any Other Indemnity Given Hereunder. Developer shall indemnify, defend
and save harmless the CRA and the CRA's successors, permitted assigns,
officials, employees and agents (the "CRA Indemnified Parties") from and
against any and all claims, actions, proceedings, damages, losses, liabilities,
costs and expenses (including, without limitation, reasonable attorneys' fees
and costs) by or on behalf of any person, arising out of, resulting from, or in
94
any way connected to: (i) any development, construction or other work in or
about Developer Improvements and/or Leased Property; (ii) a hazardous
condition of or present on the Developer Improvements and/or Leased
Property; (iii) any breach or default on the part of Developer in the
performance of any of Developer's obligations pursuant to the terms of this
Lease; (iv) any act or negligence of Developer or any of its officers, employees,
agents, servants, representatives, contractors, invitees, or licensees; or (v)
any accident, injury, or damage caused to any person occurring during the
Term in or on the Leased Property; provided, however, that the CRA shall
not be indemnified, defended or held harmless from any of the foregoing to
the extent cause by the CRA's intentional acts or gross or wanton negligence
upon the Leased Property (collectively, the "Indemnified Matters").
Section 21.2 Defense. In case any action‘ or proceeding is brought
against the CRA by reason of any of the Indemnified Matters, Developer,
upon sixty (60) days' written notice from the CRA, shall, at is expense, resist
or defend the action or proceeding by counsel reasonably satisfactory to the
CRA.
Section 21.3 CRA's Participation. If Developer is required to defend
any action or proceeding pursuant to this Article to which action or
proceeding the CRA is made a party, the CRA shall also be entitled to appear,
defend, or otherwise take part in the matter involved, at its election, and at
the sole expense of the CRA by counsel located within Miami -Dade County,
Florida of its own choosing, provided that: (i) such action by the CRA shall
not limit or make void any liability of any insurer of the CRA or Developer
with respect to the claim or matter in question; and (ii) the CRA shall not,
without Developer's prior written consent, settle any such action or
proceeding or interfere with Developer's defense or prosecution of such action
or proceeding.
95
Section 21.4 No Limitation. The foregoing agreements of indemnity
are in addition to and not by way of limitation of any other covenants in this
Lease to indemnify the CRA.
Section 21.5 Challenges to Lease. Developer acknowledges and agrees
that: (i) the CRA shall have no liability whatsoever to Developer in
connection with any such challenge, and Developer hereby forever waives and
releases the CRA from any such liability, now or hereafter arising; and (ii)
Developer shall, at its expense, undertake the defense of (but not indemnify
the CRA against) any action brought against the CRA seeking to set aside or
invalidate this Lease. The CRA may participate in any such defense, but
neither party shall settle or compromise any such action without the prior
written consent of the other party.
Section 21.6 Survival. The provisions of this Article shall survive the
expiration or sooner termination of this Lease.
ARTICLE XXII
MISCELLANEOUS PROVISIONS
Section 22.1 No Partnership or Joint Venture. It is mutually
understood and agreed that nothing contained in this Lease is intended or
shall be construed in any manner or under any circumstances whatsoever as
creating or establishing the relationship of co-partners, or creating or
establishing the relationship of a joint venture between the CRA and
Developer, or as constituting Developer as the agent or representative of the
CRA for any purpose or in any manner whatsoever,
Section 22.2 Recording, Documentary Stamps. This Lease shall be
recorded amount the Public Records of Miami -Dade County, State of Florida
and either party may cause any modification or addition to this Lease or any
ancillary document relevant to this transaction to be so recorded and the cost
of any such recordation, cost of any State of Florida documentary stamps
which legally must be attached to any or all of said papers and the cost of the
96
applicable Miami -Dade County and State transfer tax, if applicable, shall be
paid in full by the Developer.
Section 22.3 Florida and Local Laws Prevail. This Lease shall be
governed by the laws of the State of Florida. This Lease is subject to and
shall be interpreted to effectuate its compliance with the Charter of the City
of Miami and the Miami -Dade County Charter and Code. Any conflicts
between this Lease and the aforementioned Codes and Charters shall be
resolved in favor of the latter. If any term covenant or condition of this Lease
or the application thereof to any person or circumstances shall to any extent,
be illegal, invalid, or unenforceable because of present or future laws or any
rule or regulations of any governmental body or entity or becomes
unenforceable because of judicial construction, the remaining terms,
covenants and conditions of this Lease, or application of such term, covenant
or condition to persons or circumstances other than those as to which it is
held invalid or unenforceable, shall not be affected thereby and each term,
covenant, or condition of this Lease shall be valid and be enforced to the
fullest extent permitted by law.
Section 22.4 Conflicts of Interest; CRA Representatives Not
Individually Liable. No member, official, representative, or employee of the
CRA or the Executive Director shall have any personal interest, direct or
indirect, in this Lease, nor shall any such member, official, representative or
employee, participate in any decision relating to this Lease which affects his
or her personal interest or the interest of any corporation, partnership or
association in which he or she is, directly or indirectly, interested. No
member, official, representative or employee of the CRA or the Executive
Director shall be personally liable to Developer or any successor in interest in
the event of any default or breach by the CRA or the Executive Director or for
any amount which may become due to Developer or successor or on any
obligations under the terms of the Lease.
97
Section 22.5 Notice. A notice of communication under this Lease by
either the CRA or the Executive Director, on the one hand, to Developer, or,
on the other , by Developer to the CRA or the Executive Director shall be
sufficiently given or delivered if dispatched by registered or certified mail,
postage prepaid, return receipt requested, overnight express mail, or by a
courier service which obtains receipts for delivery; and
(a) Developer. In the case of a notice or communication to
Developer if addressed as follows:
Sawyer's Walk, Ltd.
c/o Tirso San Jose
Crosswinds at Poinciana, LLC
600 Corporate Drive, Suite 102
Ft. Lauderdale, Florida 33334
With a copy to:
I. Barry Blaxberg, Esq.
Blaxberg, Grayson, Kukoff & Segal, P.A.
25 S.E. Second Avenue, Suite 730
Miami, Florida 33131
(b) CRA. In the case of a notice or communication to the CRA
or the Executive Director, if addressed as follows:
SOUTHEAST OVERTOWN/PARK WEST
COMMUNITY REDEVELOPMENT AGENCY
Attention: Executive Director
49 N.W. 5th Street
Suite 100
Miami, Florida 33128
With a copy to:
Jorge L. Fernandez, Esq., City Attorney
City of Miami
444 SW 2nd Avenue, Suite 945
Miami, Florida 33130
98
William R. Bloom, Esq.
Holland & Knight LLP
701 Brickell Avenue
Suite 3000
Miami, Florida 33131
James H. Villacorta, Esq.
49 N.W. 5th Street
Suite 100
Miami, Florida 33128
or is such notice is addressed in such other way in respect to any of the
foregoing parties as that party may, from time to time, designate in writing,
dispatched as provided in this Section 22.5. Notices personally delivered or
sent by overnight courier shall be deemed given on the date of delivery and
notices mailed in accordance with the foregoing shall be deemed given upon
receipt or the date delivery is refused.
Section 22.6 Estoppel Certificates. The CRA and Developer shall at
any time and from time to time, within thirty (30) days after written request
by the other, execute, acknowledge and deliver to the party which has
requested the same or to any prospective Leasehold Mortgagee, assignee or
Subtenant designated by Developer a certificate stating that (i) the Lease is
in full force and effect and has not been modified, supplemented or amended
in any way, or, if there have been modifications, the Lease is in full force and
effect as modified, identifying such modification Lease, and if the Lease is not
in force and effect, the certificate shall so state: (ii) the Lease as modified
represents the entire agreement between the parties as to this leasing, or, if
it does not, the certificate shall so state; (iii) the dates on which the term of
this Lease commenced and will terminate; (iv) all conditions under the Lease
to be performed by the CRA or Developer, as the case may be, have been
satisfied and, as of the date of such certificate, there are not existing defenses
or offsets which the CRA or Developer, as the case may be, has knowledge
against the enforcement of the Lease by the other party, or, if such conditions
have not been satisfied or if there are any defenses or offsets, the certificate
99
shall so state; and (v) the rental due and payable for the year in which such
certificate is delivered has been paid in full, or, if it has not been paid, the
certificate shall so state. The party to whom any such certificate shall be
issued may rely on the matters therein set forth and thereafter the party
issuing the same shall be estopped from denying the veracity or accuracy of
the same. Any certificate required to be made by the CRA pursuant to this
paragraph may be made on its behalf by the Executive Director.
Section 22.7 Titles of Articles and Sections. Any titles of the several
parts, Articles and Sections of this Lease are inserted for convenience of
reference only and shall be disregarded in construing or interpreting any of
its provisions.
Section 22,8 Counterparts. This Lease may be executed in
counterparts, each of which shall be deemed an original, and such
counterparts shall constitute one and the same instrument. This Lease shall
become effective only upon execution and delivery of this Lease by the parties
hereto and execution and delivery of all Exhibits referred to in Section 1.1.
Section 22.9 Nondisturbance and Attornment. The CRA covenants
and agrees with Developer for the benefit of any and all Subtenants or
Condominium Owners occupying any part of the Leased Property or the
Developer Improvements from time to time, that in the event of a
termination of this Lease prior to the Lease Termination Date, the possession
of each such Subtenant or Condominium Owner shall not be disturbed so
long as such Subtenant shall not be in default under its Sublease or provided
such Subtenant or Condominium Owner shall attorn to the CRA. This
nondisturbance agreement shall be self -operative and no further agreement
between the CRA and any such Subtenant or Condominium Owner shall be
necessary to effect the same, however, the CRA agrees from time to time,
promptly upon request of Developer of any Subtenant or Condominium
Owner, it will enter into agreements with the Developer and any such
Subtenant or Condominium Owner confirming such nondisturbance
100
agreement. Any such confirmatory agreement may be made on behalf of the
CRA by the Executive Director. In the event of a termination of this Lease,
each Subtenant or Condominium Owner shall attorn to the CRA. Developer
covenants that each Sublease to which it shall be a party shall contain a
clause expressly providing that the Subtenant or Condominium Owner
thereunder shall attorn to the CRA in the event of a termination of this Lease
prior to the Lease Termination Date, but the absence of such a clause from
any Sublease or shall not relieve the Subtenant or Condominium Owner from
the provisions of this Section 22.9.
Section 22.10 Successors and Assigns Except to the extent limited
elsewhere in this Lease, all of the covenants conditions and obligations
contained in this Lease shall be binding upon and inure to the benefit of the
respective successors and assigns of the CRA and the Developer.
Section 22.11 Entire Agreement, This instrument and its
attachments constitute the sole and only agreement of the parties hereto and
correctly sets forth the right, duties, and obligations of each to the other as of
its date. Any prior agreements, promises, negotiations, or representations
not expressly set forth in this Lease are of no force or effect.
Section 22.12 Amendments. No Amendments to this Lease shall be
binding on either party unless in writing and signed by both parties.
Section 22.13 Challenge. In the event that any person or entity files a
challenge (the "Challenge") with respect to this Lease, either judicially or
administratively after the Effective Date of this Lease, Developer, shall, at its
sole cost and expense, be obligated to defend the Challenge, with counsel
acceptable to the Executive Director. Developer acknowledges and agrees
that the CRA shall have no liability whatsoever to Developer in connection
with any Challenge and Developer hereby forever waives and releases the
CRA and the City from any liability whatsoever, now or hereafter arising in
connection with any Challenge.
101
Section 22.14 Waiver of Claim. Developer waives any and all claims
which they now have or may hereafter have against the CRA and/or the City
as a result of any Challenge, and Developer acknowledges and agrees to
assume the risk of any Challenge. Under no circumstances shall Developer
be entitled to any recovery with respect to any claims or any cause of action
against the City or the CRA resulting from any Challenge, all such claims
being expressly waived by Developer.
Section 22.15 Waiver of Jury Trial. THE PARTIES HEREBY
KNOWINGLY, IRREVOCABLY, VOLUNTARILY AND INTENTIONALLY
WAIVE ANY RIGHT EITHER MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY ACTION, PROCEEDING OR COUNTERCLAIM BASED
ON, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS LEASE
OR ANY AMENDMENT OR MODIFICATION OF THIS LEASE, OR ANY
OTHER AGREEMENT EXECUTED BY AND BETWEEN THE PARTIES IN
CONNECTION WITH THIS LEASE, OR ANY COURSE OF CONDUCT,
COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR
WRITTEN) OR ACTION OF ANY PARTY HERETO. THIS WAIVER OF
JURY TRIAL PROVISION IS A MATERIAL INDUCEMENT FOR THE CRA
AND THE DEVELOPER TO ENTER INTO THE SUBJECT
TRANSACTION.
Section 22.16 Conflict of Interest. Developer agrees to comply with
the conflict of interest provisions of the Miami City Code, Miami -Dade
County Code and the State of Florida Statutes. No member, official, or
employee of the CRA shall have any personal interest, direct or indirect, in
this Lease, nor shall any member, official, or employee participate in any
decision relating to this Lease which affects his or her personal interests or
the interests of any other person in which he or she is, directly or indirectly,
interested. No member, official, or employee of the CRA shall be personally
liable to Developer, its successors and assigns, or any claiming by, through or
under Developer or any successor in interest to the Leased Property, in the
102
event of any default or breach by the CRA or for any amount which may
become due to Developer, its successors and assigns, or any successor in
interest to the Leased Property, or on any obligation under the terms of this
Lease.
Section 22.17 Covenants to Run with the Leasehold Estate. All
covenants, agreements, conditions and undertakings in this Lease shall
extend and inure to the benefit of and be binding upon the successors and
assigns of each of the parties and be construed as covenants running with the
Leasehold Estate and the Developer Improvements. Subject to all provisions
respecting the rights of assignment or subleasing, this Lease shall be binding
upon and inure to the benefit of the respective successors and assigns of the
parties. Wherever in this Lease reference is made to any of the parties, it
shall (unless expressly provided to the contrary in• such reference) be held to
include and apply to, wherever applicable, also the successors and assigns of
each party.
Section 22.18 Brokerage. Each party represents and warrants to the
other that it has not dealt with any broker or finder in connection with the
transactions contemplated and each party agrees to indemnify, defend and
hold the other harmless of and from any and all manner of claims, including,
but not limited to, reasonable attorneys' fees and expenses, incurred by the
other party and arising out of any claim by any broker or finder if it is
ultimately determined that the indemnifying party has breached the
foregoing representation and warranty.
Section 22.19 Attorneys' Fees and Expenses. In the event of any
litigation between the parties, all expenses, including reasonable attorneys'
fees and court costs at both the trial and appellate levels, incurred by the
prevailing party, shall be paid by the non -prevailing party. The term
"attorneys' fees," as used in this Lease, shall be deemed to include, without
limitation, any paraprofessional fees, investigative fees, administrative costs
103
and other charges billed by the attorney to the prevailing party (including
any fees and costs associated with collecting such amounts).
ARTICLE XXIII
ARBITRATION
Section 23.1 Panel. A panel of arbitrators ("Arbitration Panel") shall
be established when required by this Lease.
(a) The appointments to the panel shall be made in the
following manner:
(i) The CRA shall name one member;
(ii) Developer shall name one member; and
(iii) The aforesaid members shall promptly name a
third member.
(b) Every member of the Arbitration Panel must be either an
attorney in good standing licensed to practice law in the State of Florida for
at least fifteen (15) years; a retired State of Florida or U.S. District Court
Judge; a CPA with at least fifteen (15) years experience; a developer with like
kind experience as the Developer; a MAI certified appraiser licensed in the
State of Florida; or any other person stipulated to by Developer and the CRA.
(c) If either party shall fail to designate a member within
fifteen (15) days after a written request so to do by the other party, then such
other party may request the Chief Judge of Circuit Court of the Eleventh
Judicial Circuit _ in and for Miami -Dade County, Florida to designate a
member, who when so designated shall act in the same manner as if he had
been the member designated by the party so failing to designate an
arbitrator. If the two members are unable to agree upon a third member
within ten (10) days from the last date of designation, such third member
shall be designated by the Chief Judge of Circuit Court of the Eleventh
Judicial Circuit in and for Miami -Dade County, Florida, upon the request of
either of the two members.
104
Section 23.2 Actions, Hearings and Decisions. All actions, hearings
and decisions of the Arbitration Panel shall be conducted, based upon and in
accordance with the Commercial Arbitration Rules of the American
Arbitration Association. In all controversies, disputes or claims with respect
to the evaluation of real estate referred to Arbitration under the provisions of
this Lease, the Arbitration shall be conducted in accordance with the Real
Estate Valuation Rules of the American Arbitration Association, if applicable.
In determining any matter before them, the Arbitration Panel shall apply the
terms of this Lease, and shall not have the power to vary, modify or reform
any terms or provisions of the Lease in any respect. The Arbitration Panel
shall afford a hearing to the CRA and to the Developer and the right to
submit evidence with the privilege of cross-examination on the question at
issue. All arbitration hearings shall be held at a place designated by the
Arbitration Panel in Miami -Dade County, Florida.
A hearing shall be commenced within sixty (60) days following
the selection of the last of the three arbitrators. A court reporter shall make
a transcript of the hearing. The parties and the Arbitration Panel shall use
their best efforts to conclude the hearing with ten days. The parties shall be
entitled to such pre-trial discovery as they may agree, or as determined by
the Arbitration Panel. The Arbitration Panel shall have the right to question
witnesses at the hearing, but not to call witnesses. The Arbitration Panel
may grant continuances for good cause or with the agreement of both parties.
The Arbitration Panel may render a decision at the close of the hearing, or
may request briefs on any or all issues. Any and all such briefs, including
reply briefs, shall be filed with the terms and on the schedule set by the
Arbitration Panel, but in any event no later than forty-five (45) days
following the commencement of the hearing. The Arbitration Panel shall
render a determination within sixty (60) days from the conclusion of the
hearing. If no determination is rendered within such time, unless the parties
agree otherwise, a new Arbitration Panel shall be selected as described
105
above, but the new Arbitration Panel shall render a determination solely
upon review of the record of the hearing without a further hearing.
The Arbitration Panel selected hereunder shall agree to observe
the Code of Ethics for Arbitrators in Commercial Disputes promulgated by
the American Arbitration Association and the American Bar Association, or
any successor code. The decision of a majority with respect to any matter
referred to it under this Lease shall be final, binding and conclusive on the
CRA and Developer and enforceable in any court of competent jurisdiction.
Together with the determination, the Arbitration Panel shall provide a
written explanation of the basis for the determination. Each party shall pay
the fees and expenses of the member of the Arbitration Panel designated by
such party, such party's counsel and witness fees, and one-half (1/2) of all
expenses of the third member of the Arbitration Panel.
106
IN WITNESS WHEREOF, Developer and the CRA have executed this
Lease of the day and year first above written.
[NEED CORRECT SIGNATURE BLOCK]
DEVELOPER:
Signed in the presence of: SAWYERS WALK, LTD.
Print Name: By:
Title:
Print Name:
CRA:
SOUTHEAST OVERTOWN / PARK
WEST COMMUNITY
REDEVELOPMENT AGENCY, an
agency of the State of Florida
Print Name: By: Frank Rollason
Title: Executive Director
Print Name:
ATTEST:
Priscilla A. Thompson
Clerk of the Board
APPROVED AS TO LEGAL APPROVED AS TO INSURANCE
SUFFICIENCY: REQUIREMENTS:
Holland & Knight LLP, as Insurance Manager
special counsel
107
STATE OF FLORIDA )
)SS
COUNTY OF MIAMI-DADE )
Sworn to (or affirmed) and subscribed before me this day of
, 200 , by , as
for Sawyers Walk, Ltd., who is personally known to
me or has produced as Identification.
(SEAL)
Notary Public -State of
Commission Number:
STATE OF FLORIDA
)SS
COUNTY OF MIAMI-DADE )
Sworn to (or affirmed) and subscribed before me this day of
, 20Q_, by Frank Rollason, as Executive Director for Southeast
Overtown/Park West Community Redevelopment Agency, who is personally
known to me or has produced as Identification.
(SEAL)
Notary Public -State of
Commission Number:
1564562_v21
108
EXHIBIT F
Schedule of Rental
Upon Execution $ 4,400,000.00*
First Anniversary 525,000,00*
Second Anniversary 525,000.00*
Third Anniversary 525,000.00*
Fourth Anniversary 525,000.00*
Every Year Thereafter 1.00
* Subject to set-off based upon Settlement Payments.
# 2574460_v1
EXHIBIT E
Poinciana Stipulation
SOUTHEAST OVERTOWN/PARK WEST
COMMUNITY DEVELOPMENT AGENCY,
an agency of the State of Florida
Plaintiff/Counter-Defendant,
v.
IN THE CIRCUIT COURT OF THE
11TH JUDICIAL CIRCUIT IN AND
FOR MIAMI-DADE COUNTY,
FLORIDA
GENERAL JURISDICTION DIVISION
POINCIANA VILLAGE OF MIAMI, LTD.,
a Florida limited partnership through its
General partner, INDIAN RIVER INVESTMENTS
OF MIAMI, INC., a Florida corporation,
Defendant/Counter-Plaintiff/
Third -Party Plaintiff
v.
CITY OF MIAMI, a Florida municipal
corporation
Third -Party Defendant.
CASE NO. 02-06846 CA 09
consolidated with
CASE NO. 00-28860 CA 09
STIPULATION OF SETTLEMENT AND
-
FOR DISMISSAL WITH PREJUDICE
Pursuant to Rule 1.420 of the Florida Rules of Civil Procedure, the parties
hereby stipulate to the dismissal with prejudice of this action, with the Court
reserving jurisdiction to enforce the terms of the parties' Settlement Agreement
dated
HOLLAND & KNIGHT LLP
701 Brickell Avenue
Suite 3000
Miami, FL 33131
Ph: (305) 374-8500
By:
Sanford L. Bohrer (FBN 160643)
Attorneys for Plaintiff/Counter-Defendant
Southeast Overtown/Park West
Community Redevelopment Agency and
Third -Party Defendant, the City of Miami
# 1726895 vl
CASE NO.: 02-06846 CA 09
WHITE & CASE LLP
200 S. Biscayne Blvd.
Suite 4900
Miami, FL 33131
Ph: (305) 371-2700
By:
Charles C. Kline (FBN 137737)
Attorneys for Defendant,/
Counter -Plaintiff/ Third- Party
Plaintiff Poinciana Village of
Miami, Ltd. and Indian River
Investments of Miami, Inc.
EXHIBIT F
Sawyer's Walk Stipulation
CITY OF MIAMI, a Florida municipal
corporation, and SOUTHEAST
OVERTOWN/PARK WEST COMMUNITY
DEVELOPMENT AGENCY, an agency
of the State of Florida,
Plaintiffs/Counter-Defendants,
v,
SAWYER'S WALK, LTD., a Florida
limited partnership through its general
partner, INDIAN RIVER INVESTMENTS
COMMUNITIES, INC., a Florida corporation,
Defendants/Counter-Plaintiffs.
IN THE CIRCUIT COURT OF THE
11TH JUDICIAL CIRCUIT IN AND
FOR MIAMI-DADE COUNTY,
FLORIDA
GENERAL JURISDICTION DIVISION
CASE NO. 00-28860 CA 09
consolidated with
CASE NO. 00-06846 CA 09
STIPULATION OF SETTLEMENT AND
FOR DISMISSAL WITH PREJUDICE
Pursuant to Rule 1.420 of the Florida Rules of Civil Procedure, the parties
hereby stipulate to the dismissal with prejudice of this action, with the Court
reserving jurisdiction to enforce the terms of the parties' Settlement Agreement
dated
HOLLAND & KNIGHT LLP
701 Brickell Avenue, Suite 3000
Miami, FL 33131
Ph: (305) 374-8500
By:
Sanford L. Bohrer (FBN 160643)
Attorneys for Plaintiffs/Counter-Defendants
City of Miami and Southeast
Overtown/Park West Community
Redevelopment Agency
WHITE & CASE LLP
200 S. Biscayne Blvd, Suite 4900
Miami, FL 33131
Ph: (305) 371-2700
By:
Charles C. Kline (FBN 137737)
Attorneys for Defendants/
Counter -Plaintiffs Sawyer's
Walk, Ltd. and Indian River
TnVARtmAnt. (inmtniiniftiaa Trio,
EXHIBIT G
Poinciana Order
SOUTHEAST OVERTOWN/PARK WEST
COMMUNITY DEVELOPMENT AGENCY,
an agency of the State of Florida
Plaintiff/Counter-Defendant,
v.
IN THE CIRCUIT COURT OF THE
11TH JUDICIAL CIRCUIT IN AND
FOR MIAMI-DADE COUNTY,
FLORIDA
GENERAL JURISDICTION DIVISION'
POINCIANA VILLAGE OF MIAMI, LTD.,
a Florida limited partnership through its
General partner, INDIAN RIVER INVESTMENTS
OF MIAMI, INC., a Florida corporation,
Defendant/Counter-Plaintiff/
Third -Party Plaintiff
v.
CITY OF MIAMI, a Florida municipal
corporation
Third -Party Defendant.
CASE NO. 02-06846 CA 09
consolidated with
CASE NO. 00-28860 CA 09
/
FINAL JUDGMENT
In accordance with the parties' Stipulation For Dismissal, this action is
dismissed with prejudice, each party to bear its own costs, including attorneys fees.
The Court reserves jurisdiction to enforce the parties' Settlement Agreement.
ORDERED in Miami, Florida this day of , 200
Copies to:
Sanford L. Bohrer
Charles C. Kline
Circuit Court Judge
# 1800254_vi
EXHIBIT H
Sawyer's Walk Order
CITY OF MIAMI, a Florida municipal
Corporate, and SOUTHEAST
OVERTOWN/PARK WEST COMMUNITY
DEVELOPMENT AGENCY, an agency
of the State of Florida,
Plaintiffs/Counter-Defendants,
v.
SAWYER'S WALK, LTD., a Florida
limited partnership through its general
partner, INDIAN RIVER INVESTMENTS
COMMUNITIES, INC., a Florida corporation,
Defendants/Counter-Plaintiffs.
/
IN THE CIRCUIT COURT OF THE
11 rn JUDICIAL CIRCUIT IN AND FOR
MIAMI-DADE COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
CASE NO. 00-28860 CA 09
consolidated with
CASE NO. 00-06846 CA 09
FINAL JUDGMENT
In accordance with the parties' Stipulation For Dismissal, this action is dismissed with
prejudice, each party to bear its own costs, including attorneys fees.
The Court reserves jurisdiction to enforce the parties' Settlement Agreement.
ORDERED in Miami, Florida this day of , 200 .
Circuit Court Judge
Copies to:
Sanford L. Bohrer
Charles C. Kline
# 2574428_v1