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HomeMy WebLinkAboutBack-Up DocumentationAMENDED AND RESTATED LEASE AGREEMENT between BAYSIDE CENTER LIMITED PARTNERSHIP and CITY OF MIAMI October i'1 , 1985 BAYSIDE SPECIALTY CENTER RETAIL PARCEL TABLE OF CONTENTS ARTICLE I - EXHIBITS AND DEFINITIONS Section 1.1. Section 1.2. Exhibits Defined Terms ARTICLE II - GENERAL TERMS OF LEASE OF LEASED PROPERTY Section 2.1. Section 2.2. Section 2.3. Section 2.4. Section 2.5. Section 2.6. Section 2.7. Section 2.8. Section 2.9. Section 2.10. Section 2.11. Lease of Leased Property to Developer a. Premises b. Original Term c. Renewal Term d. Possession of Leased Property e. Conditions Precedent f. Developer Obligations Prior to Possession. . Restrictive Covenants a. Use Prohibitions of the Leased Property. . . b. No Discrimination c. Permitted Uses for Leased Property d. Use Prohibitions of the Park Site and Garage Parcel e. Enforceability Easements a. Existing Easements b. Easements Granted to Developer c. Limitations on Easements Rights d. Duration of Easements e. Confirmatory Instruments Title of Leased Property Rental a. Rentals Payable b. Continuous Operation c. Payment of Rental d. Refinancing e. Developer's Records f. Pre -Construction Contributions Covenants for Payment of Public Charges by Developer Approvals and Consents Security and Police Protection City Improvements Condition of Leased Property Roadways and Utilities (1) PAGE 4 4 5 21 21 21 22 23 23 25 27 28 28 30 30 31 32 33 33 33 36 38 38 38 39 39 41 42 43 44 45 47 49 49 49 49 51r ARTICLE III - Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section TABLE OF CONTENTS CONSTRUCTION OF IMPROVEMENTS 3.1. Conformity of Plans 3.2. Preliminary Plans 3.3. Construction Plans 3.4. Facilities to be Constructed 3.5. Maintenance of Park Site and Leased Property . . 3.6. Access 3.7. Construction Period 3.8. Progress of Construction 3.9. Certificate of Final Completion 3.10. Connection of Building to Utilities 3.11. Permits and Approvals 3.12. Compliance with Laws 3.13. Extension of Time Requirements 3.14. Alterations and Renovations 3.15. Art in Public Places ARTICLE IV - LAND USES Section 4.1. Land Uses Section 4.2. Character and Operation of Improvements ARTICLE Section Section Section Section Section Section Section Section V - ANTI -SPECULATION; ASSIGNMENT 5.1. Definitions 5.2. Purposes of Restrictions on Transfer 5.3. Transfers 5.4. Notice of Transfer; Information as to Shareholders 5.5. Effectuation of Certain Permitted Transfers. . 5.6. Transfers of the City's Interests 5.7. Subletting 5.8. Minority participation in ownership ARTICLE VI - MORTGAGE FINANCING; RIGHTS OF MORTGAGEE Section Section ARTICLE Section 6.1. Leasehold Mortgage 6,2. No Waiver of Developer's Obligations or City's Rights VII - REMEDIES 7.1. Events of Default - Developer a. Failure - Payment of Money b. Failure - Performance of Other Covenants, Etc c. Bankruptcy, etc PAGE 52 52 52 54 56 56 57 57 58 59 59 60 61 62 62 63 63 63 63 64 64 66 67 69 70 71 72 73 74 74 84 84 84 85 85 85 Section 7.2. Section 7.3. Section 7.4. Section 7.5. ARTICLE VIII Section 8.1. Section 8.2. ARTICLE IX - Section 9.1 Section 9.2. Section 9.3. Section 9.4. Section 9.5. Section 9.6. Section 9.7. Section 9.8. Section 9.9. Section 9.10. Section 9.11. TABLE OF CDNTENtS Remedies fhr Developer's Default Events of t•)efault - City a. Events of Default b. Remedios for City's Default Unavoidable Delay obligations, Rights and Remedies Cumulative - PROTECTION AGAINST MECHANICS' LIENS AND OTHER CLAIMS, INDEMNIFICATION Mechanics' Liens and Payments of Obligations a. Developer to Discharge Mechanics' Liens. . . b. Payment of Materialmen and Suppliers Indemnity INSURANCE . Insurance Coverage a. Property Insurance b. Rental Value Insurance c. Automobile Liability. Insurance d. Liability Insurance. e. worker's Compensation f. Copies Responsible Companies - Blanket Insurance Permitted Named Insureds Notice to City of Cancellation. City May Procure Insurance if Developer Fails To Do So Insurance Does Not Waive Developer's Obligations Loss or Damage Not to Terminate Rental or this Agreement Proof of Loss Property Insurance Proceeds a. Authorized Payment b. Disposition of Insurance Proceeds for Reconstruction c. Lenders and Lender/Landlords May Have Benefit of Insurance Fund for Reconstruction Covenant for Commencement and Completion of Reconstruction Developer's Rights In the Event of Uninsured Major Casualty 100 Casualty to Parking Garage 102 PAGE 86 87 87 87 88 89 90 90 90 91 91 92 92 92 93 93 94 94 94 95 95 96 96 96 97 97 97 98 99 99 ARTICLE X - CONDEMNATION Section 10.1. Section 10.2. Section 10.3. Section 10.4. Section 10.5. Section 10.6. ARTICLE XI - Section 11.1. Section 11.2. Section 11.3. Section 11.4. Section 11.5. Section 11.6. ARTICLE XII - Section Section Section Section TABLE OF CONTENTS Entire Leased Property Taken by Condemnation . . . Partial Taking of Leased Property by Condemnation Adjustment of Rent Upon Partial Taking Taking for Temporary Use or of Leasehold Estate. Arbitration Parking Garage Taken by Condemnation RIGHTS OF OCCUPANCY AND ACCESS; MAINTENANCE; OWNERSHIP OF IMPROVEMENTS PAGE 102 102 104 105 106 107 109 110 Quiet Enjoyment 110 Waste 110 Maintenance and Operation of Improvements 111 Ownership of Improvements During Lease 111 Surrender of Leased Property 111 City and Developer to Join in Certain Actions. . 112 MISCELLANEOUS PROVISIONS 112 12.1. No Partnership or Joint Venture 112 12.2. Recording, Documentary Stamps 113 12.3. Florida and Local Laws Prevail 113 12.4. Conflicts of Interest; City Representatives Not Individually Liable Notice a. Developer b. Developer's Records c. City Manager Section 12.6. Estoppel Certificates Section 12.7. Provisions Not Merged with Deed Section 12.8. Titles of Articles and Sections Section 12.9, Counterparts Section 12.10. Nondisturbance and Attornment Section 12.11. Non -Discrimination and Equal Opportunity Section 12.12. Successors and Assigns Section 12.5. Exhibit A-1 Exhibit A-2 Exhibit A-3 Exhibit 8-1 Exhibit 8-2 Exhibit B-3 EXHIBITS Survey 8ayfront Park Site Plan Site Plan Legal Description of Retail Parcel Legal Description of Area A-4 Legal Description of Area A-5 (iv) 114 114 115 115 115 115 116 117 117 117 118 118 TABLE OF CONTENTS EXHIBITS (can't.) Exhibit C Intentionally Deleted .Exhibit 0 -- Fort of Guaranty Exhibit E -- Permitted Encumbrances and Easements Exhibit F -- Approved Concept Plans Exhibit G -- Development Schedule .Exhibit H -- Minority Participation Agreement Exhibit I -.- List of Design Development Plans for Restaurant in Area A-4 Exhibit J -- Drawing Showing A11 Easements and Utilities Located at the Leased Property Exhibit K --' Maintenance Responsibility Plan 1545F/452A ( v) AMENDED AND RESTATED LEASE AGREEMENT THIS AMENDED AND RESTATED LEASE AGREEMENT, made this O'?—day of October 1985, by and between GAYSIDE CENTER LIMITED PARTNERSHIP, a Maryland limited partnership (hereinafter referred to as "Developer"), and THE CITY OF m..i=ti,:, a municipal corporation of the State of Florida (hereinafter referred ;td as "the CITY"), acting by and through the CITY MANAGER (hereinafter referred to as "the City Manager"), and with the prior approval of the City C. .."°i ssicn of Miami. On January 14, 1985, the parties hereto entered into a certain Lease -.Acraemer.t with respect to the Bayside Specialty Center, Retail Parcel and now 'wire to enter into this Amended and Restated Lease Agreement to incorporate additional agreements the parties have reached since January 14, 1985 _r.`enc to amend and restate the Lease Agreement in its entirety. STATEMENT OF BACKGROUND AND PURPOSE The City is owner, in fee simple, subject to certain rights of of all that certain land located between Port Boulevard, Biscayne Bc:._evard, Chopin Plaza and Biscayne Bay in the City of Miami, County of Dade, �4 ;r Florida, which is collectively referred to herein as "Bayfront avfront Park is shown on the survey attached hereto as Exhibit A-1 . e Plat attached hereto as Exhibit A-2. For the purpose of this Lease ....Front Park consists of the following parcels: (a) A parcel of land shown and designated on Exhibit A-1 as the .t A parcel of lano shown ana designated on Exhibit A-1 as the rcc1", A parcel of land shown and designated on Exhibit A-1 as "Area 8"; A-4"; and A-5"; and (d) A parcel of land shown and designated on Exhibit A-1 as "Area (e) A parcel of land shown and designated on Exhibit A-1 as "Area (f) The remainder of 8ayfront Park as shown on Exhibit A-2. By authority of the City of Miami Charter, the City on March 18, 1983 'authorized the publication of a request for proposals for the unified development project to be known as Bayside Specialty Center for development of a portion of the Bayfront Park, which development would include restaurants, fast-food services, retail stores, markets and entertainment areas responsive to urban, environmental and design factors inherent to the City waterfront and Bayfront Park. Developer submitted a proposal to develop a mixed -use project to be known as "Bayside Specialty Center", which will consist of the following improvements generally shown on the Site Plan attached hereto as Exhibit A-3: (a) A pavilion, containing approximately 84,996 square feet of leasable area on two levels ("North Pavilion"). The North Pavilion will include specialty retail shops, a pedestrian street, and cafes and restaurants; (b) A pavilion, containing approximately 82,636 square feet of leasable area on two levels ("South Pavilion"). The South Pavilion will contain fast food markets of ethnic food specialties, restaurants, cafes and specialty retail shops; (c) A market area, containing approximately 44,000 square feet of open plaza and approximately 16,000 square feet of leaseable space, located between the North Pavilion and the South Pavilion ("Market Square"). Market Square shall contain a flower mart, produce mart, cafes, fisherman's boat market, and a major water feature; 2.. (d) A pier park containing (1) a restaurant of approximately 15, 000 square feet, (2) a pedestrian park, (3) a marina pavilion, and (4) a floating band pavilion ("Pier Park") to be located adjacent to the marina shown and designated as "Miamarina" on Exhibit A-1; (e) Reflections Restaurant, containing approximately 25,000 square :feet; (f) Promenades, landscaped areas, viewing pavilions, access roads, and certain pedestrian bridges described in the aforesaid proposal and other related amenities; and (g) Permanent parking garage containing not less than one thousand two hundred (1,200) parking spaces on three and one-half levels ("Parking Garage") ana a surface parking lot to be located on certain real property owned by the City located immediately to the west and north of the North Pavillion (hereinafter called the "Garage Parcel") which will be demised to Developer pursuant to a lease agreement between the Developer and the City ("Parking Garage Ground Lease"). The City contemplates that the following improvements to Bayfront Park will be constructed or caused to be constructed by the City: (a) An Amphitheater; (b) Phased replacement of seawalls and rip rap, and construction of a baywalk with infill and water taxi piers in the location shown on Exhibit A-2. Upon completion of construction of the baywalk and infill, such addi- tional surface area shall be added to and incorporated into Bayfront Park; and (c) Certain other improvements agreed to between City and Developer having a value of $4,000,000, which improvements are hereinafter defined as "Tenant Allowance"). it is the mutual desire of the parties that a portion of Bayfront Park bd leased and demised by the City to Developer for the purposes set forth in the request for proposals advertised by the City and the proposal submitted by Developer, subject to and upon the terms and conditions contained herein. The Statement of Background and Purpose is a description of the .current intent,of the parties with regard to development and construction of the Prdject and is intended to be an aid to the understanding of this Lease, but it is not intended to limit the rights or the obligations of the parties except to the extent that it contains definitions and terms which are used elsewhere in this Lease. The square footages and descriptions in this Statement of Background and Purpose are for illustrative purposes only, and as to such matters the approved Construction Plans prepared by the parties shall control. Certain terms defined in the Statement of Background and Purpose are more particularly defined in Section 1.2, to which reference is hereby made. In consideration of the foregoing and of the rent, covenants, and agreements hereinafter set forth, the parties do hereby covenant and agree as follows: ARTICLE I EXHIBITS AND DEFINITIONS Section 1.1 Exhibits. Attached hereto and forming a part of this Agreement are the following Exhibits: Exhibit A-1 Survey Exhibit A-2 -- Rayfront Park Site Plan Exhibit A-3 -- Site Plan Exhibit B-1 Exhibit B-2 Exhibit B-3 Exhibit C Exhibit D Exhibit E Exhibit F Exhibit G Exhibit H Exhibit I Exhibit J Legal Description of Retail Parcel Legal Description of Area A-4 Legal Description of Area A-5 Intentionally deleted Form of Guaranty by The Rouse Company of Columbia, Maryland Permitted Encumbrances and Easements Approved Concept Plans Development Schedule Minority Participation Agreement List of Design Development Plans for Restaurant in Area A-4 -- Drawing showing all easements and utilities located at the Leased Property known to the Director of Public Works of the City of Miami Exhibit K -- Maintenance Responsibility Site Plan Section 1.2 Defined Terms. AS used herein the term: "Acceptable Operator" means an entity possessing the experience, qualifications, good reputation, financial resources and adequate personnel necessary for the proper performance of all of Developer's obligations under this Lease in a manner consonant with the quality, reputation and economic viability of the Project, including (without limitation) the obligation of Annual Base Rental theretofore payable by Developer under this Lease. "Acceptable Operator Agreement" has the meaning ascribed to it in Section 6(c)(iv). "Acceptable Purchaser" has the meaning ascribed to it in Section 5.3(d). 5 "Additional Rental" means any and all payments required of Developer to the City by the terms of this Lease other than Rental. "this Agreement" or this Lease", means this Lease Agreement, as the same may be modified or amended from time to time. "Area A-5 Minimum Rental" has the meaning ascribed to it in Section 2.5(a). "Annual Basic Rental" has the meaning ascribed to it in subclause (i) of Section 2.5(a). "Arbitration Panel" has the meaning ascribed to it in Section 10.5 "Area A-4" and "Area A-5" have the meanings ascribed to them in the Statement of Background and Purpose. "Area B" has the meaning ascribed to it in the Statement of Background and Purpose. "Audited Financial Statement" means a Financial Statement certified by the Auditor to have been prepared in accordance with Generally Accepted Accounting Principles and Generally Accepted Auditing Standards as'promulgated by the American Institute of Certified Public Accountants. "Auditor" means Peat, Marwick, Mitchell & Co. or such other nationally recognized firm of certified public accountants as may be used from time to time by the Developer for the purpose of certifying the annual reports of its financial condition required by law. Such firm of accountants must be a member of the so-called "Big Eight" group of Accounting Firms. "Bayfront Park" has the meaning ascribed to it in the Statement of Background and Purpose. "Bayside Specialty Center" has the meaning ascribed to it in the Statement of Background and Purpose. 6 "Capital Improvements" means any addition to the Project or the construction of any additional Improvements or other construction in, upon or constituting part of the Leased Property (i) occurring subsequent to the date on which the entire Project is "open for business", (ii) the cost of which is reasonable and verifiable and may be capitalized and depreciated in accordance With generally accepted accounting principles and (iii) the cost of which is not included in the construction and/or permanent financing of Development Cost. "Certificate of Final Completion" has the meaning ascribed to it in Section 3.9. "the City" has the meaning ascribed to it in the opening paragraph of this Agreement. "City Improvements" has the meaning ascribed to it in Section 2.9. "City Maintenance Area" has the meaning ascribed to it in Section 3.5. "City Storm Sewer Easement" has the meaning ascribed to it in subclause (ii) of Section 2.3(a). "the City Manager" has. the meaning ascribed 'to it in the opening paragraph of this Agreement. "Common Area's means those areas and facilities which may be furnished by Developer within the Leased Property for the non-exclusive general common use of Subtenants and agents, courts, employees and other occupants of the Improvements, their officers, customers, including (without limitation) all malls, ramps, landscaped and planted areas, eating and picnic retaining walls, stairways, escalators, elevators, fire corridors, bus areas, stops, first aid stations, comfort stations or restrooms, civic facilities, meeting 7 rooms, loading dOcks and areas, delivery passages, package pick-up stations, sidewalks, walkways, roadways, parking and loading areas, and other similar areas, facilities and improvements. "Completion Date" means that date on which the City Manager shall be required to issue the Certificate of Final Completion pursuant to Section 3.9. "Construdtion Plans" has the meaning ascribed to it in Section 3.3. "County Easement" has the meaning ascribed to it in subclause (i) of Section 2.3(a). "Cumulative Credit Balance Account" has the meaning ascribed to it in Section 2.5(a). "Debt Service Payments" means all principal and interest, rental and other sums and amounts paid or payable for or during the applicable or pertinent period or in connection with any Leasehold Mortgage or any Sale-Subleaseback Transaction of the Developer's estate in the Leased Property and the Improvements and on borrowing to finance Capital Improvements; provided, however, that in the event of a foreclosure of any Leasehold Mortgage or the conveyance of Developer's estate in the Leased Property and the Improvements to any Lender by deed in lieu of foreclosure, or in the event of the termination of any lease or sublease arising out of a Sale-Subleaseback Transaction of such estate, the term "Debt Service Payments" shall thereafter include all principal and interest, rental and other sums and amounts which would have become payable pursuant to or in connection with such Leasehold Mortgage or Sale-Subleaseback Transaction but for such foreclosure, deed in lieu of foreclosure or lease termination. - 8 "Default Rate" has the meaning ascribed to it in subclause (c) of Section 2.5. "Developer" has the meaning ascribed to it in the opening paragraph of this Agreement. "Development Costs" means an amount, prdvided in reasonable detail to /the City by an executive officer of Developer and acceptable to Developer's Leasehold Mortgagees or Lender/Landlords, equal to the aggregate of all costs and expenses actually incurred by Developer for the purpose of and properly allocated to the initial development and construction of the Developer Improvements at the Leased Property (together with any and all improvements made by Developer on behalf of the City in areas adjacent to the Leased Property not paid for by the City), including (without limitation or duplication): (1) Design, planning, architectural and engineering fees, costs and expenses; and presentation costs and expenses; (2) The cost of labor, equipment, supplies, materials and services paid to contractors and subcontractors; (3) Fees and expenses paid to contractors and subcontractors; (4) Legal and accounting costs, fees and expenses; (5) Interest, commitment fees, points and other financing costs incurred in arm's length transactions, and interest on money borrowed by Developer from its parent, affiliated entities or subsidiaries in connection with the development of the Bayside Specialty Center at a cost not greater than the borrowing cost incurred by such parent, affiliate or subsidiary; (6) The cost of property, liability, workmen's compensation, title and other insurance; 9 (7) The cost of obtaining permits and licenses, and all Public Charges; (8) Utility relbcation costs and expenses and tsp-in fees or other fees for connection td utility systems and utility services during construction; (9) All costs and expenses incurred in connection with the negotiations and execution of this Lease; (10) The cost of initially furnishing and equipping management and promotion offices in the Improvements; (11) The cost of providing, furnishing, equipping and operating a field office at or near the Leased Property to or during construction of the Improvements, including (without limitation) the costs of construction trailers or other temporary office structures, barges and other vessels, automobiles, office furniturd, equipment, supplies, telephone, stationery, postage and duplication; (12) The salaries, fringe benefits, payroll taxes, travel and moving expenses, and other cdsts of employment at such field Office of (i) managers and promotion directors (but only to the extent incurred prior to the Opening Date), and (ii) tenant coordinators, project accountants, secretaries, clerks and similar office personnel; (13) The cost of subleasing the Improvements for their initial occupancy, including (without limitation) advertising costs and the fees, commissions and expenses paid to leasing agents or brokers; (14) The cost of pre -opening management, advertising and publicity and the cost of any opening event or celebration including advertising and publicity of same; (15) The central office overhead cost of The Rouse Company or any affiliate related thereto with respect to the development of the Project; (16) Other reasonable costs and expenses which are of a type usually and customarily incurred in connection with development of a specialty retail center. To the extent that any of the above items are paid for by the Tenant Allowance, such item or portion thereof paid by the Tenant Allowance shall not constitute a Development Cost. "Developer Equity Investment" means the amount equal to the sum of (i) Development Cost, (ii) an amount equal from time to time to any unrecouped and unfinanced cost of Capital Improvements made and paid for by Developer after initial construction of the Developer Improvements, and (iii) Operating Losses (excluding Rentals other than Additional Rental) less (iv) the net proceeds actually received by Developer from any and all Leasehold Mortgages or all Sale-Subieaseback Transactions of Developer's estate in the Leased Property and Improvements. "Develope•r Improvements". has the meaning ascribed to it in Section 3,4. "Developer Maintenance Area" has the meaning ascribed to it in Section 3.5. "Developer Removal Option" has the meaning ascribed in Section 2.5(a)(iv). "Developer utility Easement" has the meaning ascribed to it in the subclause (i) of Section 2.3(b) . "Developer Vehicular Access Easement" has the meaning ascribed to it in subclause (ii) of Section 2.3(b). "Environmental Laws" has the meaning ascribed to it in Section 3.11. "Events of, the City's Default" has the meaning ascribed to it in Section 7.3(a). "Events of Developer's Default" has the meaning ascribed to it in Section 7.1(a). "Fair Market Value" means the price, as of the date in question, which a seller, willing but not obligated to sell, would accept for the City's reversionary interest in the Leased Property and the Improvements or the Developer's estate in the Leased Property and the Improvements (as the case may be), and which a buyer, willing but not obligated to buy, would pay therefor in an arm's length transaction. "FEC Tract" means that certain parcel of land owned by the City of Miami, located north of the Leased Property, shown and designated as "FEC Tract" on Exhibit A-1. "Final Substructure Plans" has the meaning ascribed to it in Section 3.3. "Financing Sublease" has the meaning ascribed to it in the definition of "Sale-Subleaseback Transaction". "Foundation" has the meaning ascribed to it in Section 12.11. "Grand Prix Agreement" has the meaning ascribed to it in Section 2.2(c). "Garage Parcel" has the meaning ascribed to it in the Statement of Background and Purpose. "Improvements" shall mean all existing and future structures at the Leased Property. - 12 - "institutional Investor" has the meaning ascribed to it in subclause (b) Of Section 6.1. "Insurance Trustee" has the meaning ascribed to it in Section 9.8(a). "Leaseable Area" means the aggregate of the actual humber of square feet of leaseable area in the Leased Property designed for the exclusive use and odc?upancy of rent paying Subtenants, excluding Common 'Areas, mezzanine storage areas, areas used for management and promotion offices, mechanical equiPme.ht penthouse, and truck docks and truck loading areas (including covered receiving areas adjacent thereto). "Leased Property" has the meaning ascribed to it -in Section 2.1. "Leasehold Mortgage" shall have the meaning ascribed to it in subclause (b) of Section 6.1. "Leasehold Mortgagee" and "Lender" shall have the meanings ascribed to them'in subclause (b) of Section 6.1 and shall be used interchangably. "Lender/Landlord" means a lender, and any successor, assignee, transferee 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. "License" has the meaning ascribed to it in Section 2.2(c). "Market Square" has the meaning ascribed to it in the Statement of Background and Purpose. "Management Costs" means (without duplication) Developer's reasonable and prudent costs of performing management services for the Project, which services shall include the following: (i) supervision of the performance of all of Developer's obligations in accordance with the standards of operation and maintenance applicable to a high quality retail development, including without limitation supervision of heating, ventilating, air-conditioning and maintenance of the Project and the maintenance of all Common Area, and all security systems and retail management personnel; (ii) enforcement of all Subleases (including collection of minimum and percentage rents, collection of other charges such as common area maintenance and heating, ventilating and air-conditioning charges, and supervision of the performance of all obligation under Subleases), termination and modification of existing Subleases when required, renewal of such Subleases and obtaining new Subtenants for vacant spaces; (iii) supervision of any merchants association; (iv) formulation of all budgets for operation of the Project; (v) keeping books of account, auditing such books at least annually, preparation of statements of account to be submitted to the City showing the performance and condition of the Project, and supervision of the payment of all obligations related to the operation thereof; (vi) development of programs for the promotion of the Project (including advertising and publicity programs); (vii) management of the Project, including all normal legal fees, accounting, auditing, transportation and travel salaries, home office expenses of the Developer, The Rouse Company and affiliates, and the salaries, benefits and expenses of all personnel related to the supervision and administration of management services, including all supplies and materials required in connection therewith; and (viii) all reasonable on -site costs and expenses relating to an -site managers, assistant managers, marketing directors and bookkeepers, incidental out-of-pocket costs (including but not limited to office supplies, telephone, stationery, postage and duplication), market research and analysis and consumer surveys, legal and other proceedings involving Public Charges, outside CPA audits relating to the Project or Subtenants, plans for minor alteration of the Project, proceedings relating to condemnation or eminent domain, legal proceedings for eviction or bankruptcy -related proceedings for any Subtenant, and legal and other costs of extraordinary legal proceedings •concerning the Project, all whether performed by on -site personnel or independent third parties. "Miamarina" has the meaning ascribed to it in the Statement of Background and Purpose. "Minimum Base Rental" has the meaning ascribed to it in Section 2.5. "Net Income Available for Distribution" means the Operating Income for the applicable or pertinent period, minus the sum of (1) Operating Expenses for the same period, (2) Debt Service Payments for the same period, and (3) an amount equal to ten percent (1O%) of Developer's Equity Investment for the same period. Net Income Available for Distribution shall be determined on an accrual basis in accordance with generally accepted accounting principles. "North Pavilion" has the meaning ascribed to it in the Statement of Background and Purpose. "On -Site Management Costs" means that portion of Management Costs described in clause (viii) of the definition of the term "Management Costs". "Opening Date" means the earlier of (1) the date upon which Subtenants occupying eighty (80%) percent of the Leaseable Area (exclusive of temporary tenants or pushcarts) are open and operating for business with the general public in the Leaseable Area, or (2) the ninetieth day following issuance of the Certificate of Final Completion. - 15 - "Operating Contributions" means any and all payments made to Developer by any Subtenant or other party as a contribution toward the cost of cleaning, maintaining and repairing and securing any of the facilities situated outside structures located on the Leased Property, or the cost of providing, maintaining, repairing and operating heating, ventilating or air-conditioning ,equipment (including, without limitation, the cost of energy therefor), or as a contribution to any promotion, fund, advertising fund or merchants association administered by Developer, or in consideration of the furnishing of utility services by Developer, or in consideration of the furnishing of sprinkler or fire protection systems and devices, or as a reimbursement or contribution toward the payment of any Public Charges or any other payment in the nature of a reimbursement of, or contribution to, or charge in lieu of any Cost incurred by Developer in connection with the ownership or operation of the Leased Property or the Improvements. "Operating Expenses" means (without duplication) (1) all reasonable and prudent expenditures for a Waterfront Specialty Center according to the then current standards of the industry accounted for by the accrual method in accordance with generally accepted accounting principles made by the Developer or which the Developer is obligated to make in the operation, ownership or management of the Leased Property and the Improvements or any part of either, including (without limitation) payroll and payroll expenses, business taxes and Public Charges, supplies, license and permit fees, repair and maintenance expenses, costs and expenses of cleaning, maintaining and repairing the Project, utility charges, insurance premiums, auditing and professional fees and expenses, publicity costs and expenses (including, without limitation, contributions to any promotion fund, advertising fund or merchants association administered by the Developer), (2) On -Site Management Costs, (3) three and one-half 3-1/2% percent of Operating Income for Management Costs (exclusive of On -Site Management Costs), (4) Minimum Base Rental, and (5) Area A-5 Minimum Rental. In no event shall depreciation constitute a portion of Operating Expenses. No expenses or costs incurred by Developer in connection with the operation of the Parking Garage shall constitute Operating Expenses hereunder. "Operating Income" means the Developer's gross operating revenues arising out of or resulting from the rental and/or ownership and operation of the Leased Property, the Improvements (other than funds received as the capital contributions, insurance or condemnation proceeds, or the proceeds of loans, financings or sale of property), including (without limitation) all such operating revenues, Operating Contributions and other payments received from Subtenants and all income from vending machines, telephones, pay toilets and other sources located in the Leased Property or the Improvements. Prepaid rents, prepaid payments and security deposits shall not be included in Operating Income until earned, applied or forfeited; If Developer shall receive insurance or condemnation proceeds or awards, the amount thereof which represents reimbursement to Developer for items accounted for as Operating Expenses shall be deemed to be Operating Income, No operating revenues made by Developer with respect to the Parking Garage shall constitute a portion of Operating Income hereunder. "Operating Losses" means the amount by which the Operating Income for the applicable period is less than the aggregate of Operating Expenses (calculated for the purpose of this definition to include Annual Basic Rental under item (4) of the definition for Operating Expenses in lieu of Minimum Base Rental) plus Debt Service Payments for the same period. - 17 - "Original Term" has the meaning ascribed to it in clause (c) of Section 2.1. "Owner" has the meaning ascribed to it in Section 5.1. "Owner whose shares are publicly traded" has the meaning ascribed to it in Section 5.1. "Park Site" means the area comprising the 8ayfront Park but excluding the Leased Property and the Garage Parcel all as shown on Exhibit A-2. "Parking Garage" has the meaning ascribed to it in the Statement of Background and Purpose. "Parking Garage Ground Lease" has the meaningascribed to it in the Statement of Background and Purpose. "Pier Park" has the meaning ascribed to it in the Statement of Background and Purpose. "Possession Date" has the meaning ascribed to it in Section 2.1(d). "Project" means the Leased Property plus the Improvements. "Public Charges" has the meaning ascribed to it in Section 2.6. "Reconstruction Work" has the meaning ascribed to it in clause (b) of Section 9.8. "Refinancing" means any financing, by way of a Leasehold Mortgage or by way of a Sale -Leaseback Transaction of Developer's: estate in the Leased Property and Improvements, which results in Refinancing Proceeds being -.available.:.to Developer. Refinancing shall not include the initial long term financing of the Project or any equipment leasing or the refinancing of any interim or any construction financing obtained by Developer to finance its development and construction obligations hereunder. "Refinancing Proceeds" means the net proceeds available to Developer out of any Refinancing after deduction of (i) an amount equal to Developer's -18- Equity Investment, (ii). all amounts required to repay the then existing debt secured by all Leasehold Mortgages being refinanced or to repurchase Devel- oper's estate in the Leased Property and Improvements if previously conveyed in a Sale -Leaseback Transaction, and (1ii) all costs and expenses associated with the negotiation and closing or consummation of such Refinancing. "Removal Option" has the meaning ascribed to it in Section 2.5(a)(iv). "Renewal Term" has the meaning ascribed to it in clause (c) of Section 2.1. "Rent Commencement ,Date" means the date described as "Rent Commencement Date" on Exhibit G attached hereto, subject to extensions or adjustments thereto for a period equal to any delay in the occurrence in the Completion Date due to Unavoidable Delays, as defined in Section 7.4. "Rental" has the meaning ascribed to it in clause (a) of Section 2.5. "Rental Year" means a calendar year consisting of twelve (12) consecutive calendar months beginning an January 1 and ending on December 31 of each year of this Lease. The first Rental Year during the term of this Lease shall commence on the Opening Date and end on December 31st of the same calendar year in which the Opening Date occurs, and the Rental shall be apportioned therefor. Any portion of the term remaining after the end of the last full Rental Year shall constitute the final Rental Year, and Rental shall be apportioned therefor. "Restaurant Facilities" has the meaning ascribed to it in Section 2.10. "Restaurant Lease" has the meaning ascribed to it in Section 2.10. "Restaurant Parcel" has the meaning ascribed to it in Section 2.10. -19- "Sale-Subleaseback Transaction" means Developer's sale to a Lender/ Landord of all or a substantial portion of Developer's interest in this Lease, and the subsequent execution or a sublease ("Financing .Sublease") between Lender/Landord and Developer. "Section", "subsection", "paragraph", "subparagraph", "clause", or "subclause" followed by a number or letter means the section, subsection, paragraph, subparagraph, clause or subclause of this Agreement so designated. "South Pavilion" has the meaning ascribed to it in the Statement of Background and Purpose. "Sublease" means any lease, sublease, license or other agreement by which Developer or any person or other entity claiming under Developer (including, without limitation, a subtenant or sublicensee) demises, leases, subleases, licenses or sublicenses to or permits the use or occupancy by another person or entity of any part of the Leased Property and Improvements. "Subtenant" means any person, firm, corporation or other legal entity using or occupying or entitled to use or occupy any part of the Leased Property or the improvements under a Sublease. "Supplemental Agreement" has the meaning ascribed to it in Section 2.2(c). "Tenant Allowance" means those certain improvements to be agreed upon between the City and the Developer to be made by Developer at the City's cost to the Leased Property having an aggregat3 cost of Four Million Dollars ($4,000,000) in consideration of Developer entering into this Lease. "Transfer" has the meaning ascribed to it in Section 5.1. "UDAG has the meaning ascribed to it in subclause (e) Section 2.1. _20_ "Waterfront Specialty Center" means a retail complex situate on or near a major body of water having a wide variety of specialty retail and restaurant establishments and other food related uses. Examples of Waterfront Specialty Centers include but are not limited to Faneuil Hall Marketplace in Boston, Massachusetts, Harborplace in Baltimore, Maryland and South Street •"Seaport in New York, New York. ARTICLE II GENERAL TERMS OF LEASE OF LEASED PROPERTY Section 2.1 Lease of Leased Property to Developer. Subject to the conditions set forth in this Agreement, to the payment of rental provided herein, and the performance of the parties hereto of the duties and obligations on the part of each to be performed hereunder: (a) Premises. The City demises and leases to Developer, and Devel- oper takes and hires from the City, all of the area described as Retail Parcel, Area A-4 and Area A-5 as shown on Exhibit A-1 and more particularly described in the legal descriptions attached hereto as Exhibits 6-1, B-2 and 9-3 together with the buildings, structures, Improvements existing on the date hereof and equipment thereon and together with and subject to the restrictions, conditions, covenants and easements hereinafter mentioned, reserved or granted (the "Leased Property"). The City and Developer recognize that the boundaries of the Leased Property may require minor adjustments to accommodate the Improvements contemplated pursuant to the Construction Plans. Should the parties agree a modification is required, Exhibits B-1, B-2 and/or 8--3 to this Lease shall be amended accordingly. City shall have the right, but not the obligation, to construct the proposed light tower on Area A-5: Within one (1) year from the Completion Date, Developer shall notify the City Manager whether or not Developer intends to construct the proposed improvement on Area A-4 and/or to occupy the proposed light tower to be constructed by the City on Area A-5. ,If, within such one (1) year period, the Developer elects not to construct on Area A-4 or to not occupy the proposed light tower on Area A-5 or if the City has not decided to construct the improvements on Area A-5, this Lease shall terminate as to such Area and same shall be deemed to be included in the Park Site:, If Developer elects to construct improvements on Area A-4, such improvements must be substantially in accordance with the design development Plans approved by the City Commission and made a part of this Agreement as Exhibit I. New structures shall be limited to a maximum height not to exceed that of the existing Restaurant Facilities (50 feet above grade, 57 feet above mean water level) with such minor exceptions as the City Manager ih the interest of good architectural design shall approve in connection with his approval of Construction Plans. Buildings on the Leased Property shall not exceed a total of 200,000 square feet of Leaseable Area of New Construction plus a bonus of 42,000 square feet of Leaseable Area of new construction to which the Developer shall be entitled upon demolition of the existing. Bayfront Municipal Auditorium. (b) Original Term. To have and to hold the Leased Property for a term of forty-five (45) years, commencing on the first day of the month next Following the Possession Date. Within thirty (30) days after the Possession bate, the City Manager and Developer, upon request of either party, shall execute one or more written memoranda in such form as will enable them to be recorded among the Land Records of Dade County setting forth the beginning and -22- termination dates of the Original Term, determined in accordance with this Agreement. (c) Renewal Term. Developer is granted an option to renew this Lease from time to time upon the same terms and conditions, except as otherwise expressly provided, for up to two (2) additional terms (each called a "Renewal -`Term") of fifteen (15) years each, commencing at the expiration of the original Term or the previous Renewal Term, as the case may be, and terminating on the fifteenth (15th) anniversary of such expiration, by giving the City express written notice of a Renewal not less than six (6) months before the date on which such Renewal Term is to commence. At the City's option, such renewal request shall not be granted if at the expiration of the Original Term or the immediately preceding Renewal Term, as the case may be, an Event of Developer's Default shall have occurred and be continuing. Within thirty (30) days after commencement of a Renewal Term, the City Manager and Developer, upon request of either party shall execute one or more written memoranda in such form as will enable them to be recorded among the Land Records of Dade County setting forth the beginning and termination dates of the Renewal Term, determined in accordance with this Agreement. (d) Possession of Leased Property. The City shall deliver possession of the Leased Property and the existing Improvements to Developer, and Developer shall take possession thereof within thirty (30) days after the following shall have occurred: (1) The City Manager shall have approved the Preliminary Plans and Final Substructure Plans for the Developer Improvements to be constructed on the Leased Property, as provided in Sections 3.2 and 3.3; (ii) The City Manager shall have received and approved the commitment or commitments for the construction and permanent financing of -23- the Developer Improvements to be constructed at the Leased Property, or such other evidence as may be reasonably satisfactory to the City Manager that such financing has been committed or is available which approval shall not be unreasonably withheld. The City Manager must approve such financing if same is on terms prevailing in the then current market place ih the United States. Developer may, at its option, self -finance all or a portion of the Developer Improvements provided, however, that Developer may not charge the Project an interest rate in excess of Developer's parent's cost of borrowing; (iii) The City Manager shall have received a guaranty in form attached hereto as Exhibit D from The Rouse Company (a Maryland corporation) of the prompt and faithful performance and observance by Developer of all of its obligations hereunder with respect to the construction and completion of the Developer Improvements to be constructed on the Leased Property; (iv) All governmental permits and approvals required to commence construction of the Developer Improvements shall have been obtained by Developer; (v) The City and Developer shall have entered into a mutually acceptable agreement with respect to the Miamarina; and (vi) The City shall be in a position to deliver the Restaurant Parcel to Developer free and clear of all leases (other than this Agreement), licenses (other than the Grand Prix Agreement, if applicable) and other occupancy or possessory agreements. The date that the City delivers possession of the Leased Property and the existing Improvements to Developer in accordance with this paragraph (d), by notice in writing, is herein called "Possession Date". -24- (6) Conditions Precedent. Developer shall not be obligated to take possession of the Leased Property or to perform any other obligations under this Lease unless and until the following shall have occurred or have been obtained: (i) the City Manager has approved all of the Construction Plans for the Developer Improvements; (ii) Developer has obtained all governmental approvals and permits necessary for construction of the Developer Improvements; (iii) the City shall have received all governmental approvals and permits necessary for construction of the City Improvements and the City Improvements located on the Retail Parcel shall be substantially completed; (iv) Developer shall have obtained a commitment or commitments, on terms and in a form satisfactory to Developer, from Institutional Investors or Lender/Landords for construction and long term financing of the Project; (v) The City Manager has approved all construction plans for the Parking Garage and other'improvements to be constructed pursuant to the Parking Garage Ground Lease; (vi) The Developer has obtained all governmental approvals and permits necessary for construction of the Parking Garage and other improvements to be constructed pursuant to the Parking Garage Ground Lease; (vii) The City Manager shall have obtained a firm commitment acceptable to Developer for the issuance, sale and purchase of tax exempt industrial revenue bonds on terms and in a form satisfactory to Developer for construction of the Parking Garage and other .improvements to be constructed pursuant to the Parking Garage Ground Lease; _25_ (viii) the City has entered into a Grant Agreement with the U.S. Department of Housing and Urban Development for an Urban Development Action Grant ("UDAG") in the amount of at least Six Million One Hundred Thousand Dollars ($6,100,000), on terms and in a form satisfactory to Developer; (ix) The City and Developer shall have entered into a mutually acceptable agreement with respect to the Miamarina; (x) Developer shall be satisfied that the development of the Project will not violate the Environmental Laws (hereinafter defined); and (xi) Developer shall be satisfied that the City shall be able to deliver the Restaurant Parcel to Developer pursuant to the provisions of subsection 2.1(d)(vi) hereof. Developer and the City shall use good faith efforts to satisfy all of the aforesaid conditions precedent. It is recognized by the parties hereto that it is not the intention of either party to encumber the Leased Property with this Lease for an indefinite period of time during the period of satisfaction of the aforesaid conditions precedent and that therefore either party snail have the right to terminate this Lease if all of the aforesaid conditions precedent are not satisfied or waived on or before January 1, 1988. If Developer does not obtain satisfactory financing pursuant to subsection (iv) above and shall solely as a result thereof terminate this Lease, Developer shall pay to the City the amount of Two Hundred Fifty Thousand Dollars ($250,000) as liquidated damages for such termination of this Lease provided that the City Manager establishes that Developer did not negotiate in good faith for such financing. There shall be no damages payable to the City if the Developer shall be unable to obtain acceptable financing after a good faith effort with respect to same. It is agreed that not with- -26_ standing the City's agreement to use good faith to satisfy the aforesaid conditions precedent, the City shall not be required to expend any funds in order to comply With any requirements of the statute or code set forth in (x) above except as specifically set forth in Section 3.11 hereof. No waiver of ahy of the foregoing conditions precedent shall be implied by any conduct of Developer, including (without limitation) any election by Developer to proceed with any development activity prior to the satisfaction of all of such conditions precedent, it being agreed that any waiver by Developer of an!y such condition precedent shall be effected only by Developer's expre8s written statement to that effect delivered to the City or the City Manager. Notwithstanding the foregoing, should all of the conditions precedent set forth in this Section 2.1(d) and (e), except for the conditions relating to permanent financing in subsection (e)(iv) above and in Section 2.1(d)(ii) above, be satisfied and should Developer desire to take possession of the Project by a notice in writing on a designated Possession Date, the City agrees to waive the conditions precedent set forth in subsection (e)(iv) above and Section 2.1(d)(ii) and thereafter there shall be no damages payable or any other remedy available to the City if the Developer shall be unable to obtain the financing referred to in said subsections. (f) Developer Obligations Prior to Possession. Notwithstanding any- thing herein to the contrary, until possession of the Leased Property and the existing Improvements shall have been delivered to Developer pursuant to the provisions of clause (e) of this Section 2.1, Developer shall not be required to perform any of its obligations hereunder with respect to any portion of the Project as to which possession shall not have been so delivered to the extent that such possession shall be reasonably required for the performance of such obligation. The City shall indemnify, hold harmless and defend Developer from and against any and all claims, actions, suits or demands of any nature whatsoever with respect to any portion of the Leased Property arising out of any act or omission of the City, its agents, servants, employees or contractors occurring prior to delivery of possession thereof to Developer as herein provided. Section 2.2 Restrictive Covenants. The restrictive covenants con- tained in paragraphs (a) through (d) of this Section 2.2 are intended and designed to bind the Developer and the City and their respective successors and assigns and bind upon and run with the Leased Property and the Park Site (as the case may be) throughout the entire term of this Lease, including any Renewal Term and any new lease executed pursuant to the provisions of Sections 6.1 and-6.2. The parties recognize, however, that the development and opera- tion of the Leased Property, the Developer Irrprovements and the City Improve- ments in a manner which is in the best interests of both parties may from time to time require the confirmation, clarification, amplification, or elaboration of this Agreement in order to deal adequately with circumstances which may not now be foreseen or anticipated by the parties. The parties reserve unto them- selves the right to enter into such interpretive, implementing or confirmatory agreements from time to time as they may deem necessary or desirable for any such purpose without obtaining the consent or approval of any person or entity not a party to this Agreement except as may be expressly otherwise provided in this Lease or by law. (a) Use Prohibitions of the Leased Property. The Leased, Property hereby demised shall not be used for the following: (i) Permanent or temporary housing or sleeping quarters; or - 28 - (ii) Coinbox entertainment (pinball, video games, moving Pictures operated by coins) ; Or (iii) Casino gambling, games of chance or reward; or (iv) Any unlawful or illegal business, use or purpose, or for any business, use or purpose which is immoral or disreputable (including without limitation "adult entertainment establishments" and "adult" bookstores) or extra -hazardous, or in. such manner as to constitute a nuisance of any kind (public or private), or for any purpose or in any way in violation of the certificates of occupancy (or other similar approvals of applicable governmental authorities). Developer agrees that if casino gambling shall in the future become legal in the City of Miami, (i) Developer may not use the Improvements or any portion of the Leased Property for casino gambling purposes without the prior consent of the City, and if the City shall consent, the parties shall in good faith negotiate an appropriate modification or amendment to this Agreement, which shall result in the Annual Basic Rental to the City in . excess of 35% of Net Income Available for Distribution; (ii) The City shall not use or authorize the use of any portion . of Bayfront Park (other than the Leased Property) for casino gambling purposes without the prior consent of Developer, and if Developer shall consent, the parties shall in good faith negoti- ate an appropriate modification or amendment to this Agreement intended to reflect the changed conditions resulting from such use of Bayfront Park. Developer acknowledges that if casino gambling shall become legal in the City of Miami, the City may authorize the use of any of its property for same - 29 - (except as herein restricted), including, but not limited to the F.E.C. Tract located directly to the north of the Leased Property. (h) No Discrimination. No covenant, agreement, lease, conveyance or other instrument shall be effected or executed by Developer, or any of its successors or assigns, whereby the Leased Property or any portion thereof is restricted by Developer, or any successor in interest, upon the basis of race, color, religion, sex or national origin in the sale, lease, use or occupancy thereof. Developer will comply with all applicable state and local laws, in effect frori time to time, prohibiting discrimination or segregation by reason of race, Color, religion, sex, or national origin in the sale, lease or occupancy Of the Leased Property. (C) Permitted Uses for Leased Property. Except for the limited use which Miami MotorSports, Inc. may have, if any, pursuant to (i) a license agreement entered into between the City and Miami MotorSports, Inc. on June 14, 1982, as amended by an amendment to such license agreement between the City and Developer on December 31, 1984 (the "License"), (il) a Supplemental Agreement (as amended the "Supplemental Agreement") among Developer, the City and Miami MotorSports, Inc. on January 14, 1985 and (iii) any amendments to (i) and (ii) above consented to by Developer pursuant to its rights under the Supplemental Agreement (the License, any amendments thereto consented to by Developer, plus the Supplemental Agreement hereinafter collectively the "Grand Prix Agreement"), the only uses permitted on the Leased Property are retail, recreation, parking and office (provided that such office uses shall be limited to management offices and other office uses commonly found in retail centers). For the purpose of this Lease "retail" shall mean sale of any and all commodities or services to the consumer, including (without limitation) restaurants, facilities for the sale of food or alcoholic (including beer and - 30 - wine) and non-alcoholic beverages, merchandise, and services customarily found in urban retail centers similar to the Project. (d).., Use Prohibitions of the Park Site and. Garage Parcel. The parties acknowledge and agree that the Leased Property is surrounded by the Park Site and Garage Parcel and that; consequently, the manner in which the Park Site and Garage Parcel is or may be used from time to time will have a direct and material affect on the use and value of the Leased Property and the Improvements. In consideration of the foregoing and of the Rentals reserved by it under this Lease, the City, as the owner of the Park Site and the Garage Parcel, for itself, its successors and assigns, covenants and agrees with Developer, its successors and assigns that: (i) The City will not permit any use Of the Garage Parcel, Miamarina, the baywaik or the dcicks on the Park Site which would detract from the use of the Leased Property or which would materially obstruct the view of Biscayne Bay from the Leased Property, including (without limitation) any such use by vessels using the docks or the Miamarina. (ii) The City will not, without first obtaining the written consent of the Developer, (1) construct any fence or barrier between the Park Site, the Garage Parcel and the Leased Property, or (2) make or permit substantial alteration in the Park Site or the Garage Parcel or permit any structure on the Park Site or the Garage Parcel which will substantially adversely affect the access to and from the Leased Property, or be inconsistent with the use of the Leased Property; (iii) The City will not sell the Park Site or the Garage Parcel except to a party who shall agree to expressly assume the City's obligations under this Agreement and who shall have the authority to assume and perform the same as provided for under Section 5.6; - 31 - (iv) Except with respect to Areas A-4 and A-5 which may be used by the City for any lawful purpose if the City shall terminate this Lease with respect to same Pursuant to Section. 2.1(a), and except for the temporary uses permitted pursuant to the Grand Prix Agreement, the Park Site will, during the term of this Lease and any renewals hereof, be open to the general public and shall be devoted only to public park uses; and (v) The City will coordinate its ongoing planning and implementation efforts relating to the construction of improvements to and the use of the Park Sitd and Areas A-4 and A-5 with Developer (including, without limitation, the Staging of promotional events and entertainment activities and construction activities) so that the making of improvements to and the use of such area will not materially adversely effect the Developer's and Subtenant's use and enjoyment of the Leased Property. The City agrees to impose the use restrictions affecting the Garage Parcel hereinabove set forth, from time to time, on the tenant's estate under the Parking Garage _Ground Lease and, so long as the Parking Garage Ground Lease in in effect, Developer agrees to look solely to such tenant with respect to the enforcement of its rights hereunder as same apply to the Garage Parcel provided that the City shall have imposed such use restrictions on such party. Notwithstanding the provisions of the preceding paragraph, the City agrees that at all times during the term hereof or of any new lease entered into pursuant to Article VI hereof, the City will operate or require the tenant under the Parking Garage Ground Lease to operate the Parking Garage as a public parking facility. (e) Enforceability. It is intended and agreed hereby that the restrictive covenants contained in this Section 2.2 shall be binding upon the City and the Developer, their respective successors and assigns, and shall be covenants running with the land and shall be for the benefit and in favor of, and enforceable by, the City arid Developer respectively, as the case may be; provided, however, that such covenants shall be binding on Developer, and the City, and their respective successors in interest and assigns, only for such period as each shall have (i) fee title to the Leased Property, the Park Site or any part of either, as to the City, and (ii) the leasehold estate herein demised to Developer, as to Developer. Section 2.3 Easements. The following easements presently exist or are hereby granted: (a) Existing Easements. The following easements presently exist: (i) the easement for a 72 inch underground force main, mare particularly shown and designated as the "County Easement" on Exhibit A-1 hereto; (ii) the 20 foot storm sewer easement more particularly shown and designated as the "City Storm Sewer Easement" on Exhibit A-1 hereto; (iii) such other easements as are described on Exhibit E. (b) Easements Granted to Developer. The City grants unto Developer, its successors and assigns the following: (i) the non-exclusive right and easement (the "Developer Utility Easement") to install, maintain, repair and replace utility facilities such as water, gas, electric, and telephone lines and storm and sanitary sewers underground within portions of the Park Site, and any other property owned by the City which is not a dedicated street, in the location shown there- fore on the approved Construction Plans or in such other locations as may be approved by the City Manager from time to time; -33- (ii) the non-exclusive right and easement (the "Developer Vehicular Access Easement") for the unobstructed access by service and emergency vehicles to and from the Leased Property (x) to Biscayne Boulevard, (y) over and across Port Boulevard to Biscayne Boulevard and (z) over and across the Park Site to Biscayne Boulevard (as Port Boulevard and Biscayne Boulevard are now or hereafter constructed), in the location shown therefor on Exhibit A-1 or such other locations as may be approved by the City Manager from time to time. Should Port Boulevard or Biscayne Boulevard not be immediately adjacent to the Leased Property or the Park Site, the area of land and related .improvements permitted to be used as the Developer Vehicular Access Easement shall include any strips of land separating Port Boulevard or Biscayne Boulevard from either the Leased Property or the Park Site; (iii) the non-exclusive right to use portions of the Park Site in common with the public, subject to the City's right to restrict areas in the Park Site for reasonable periods during special events, for the unobstructed pedestrian access to and from the Leased Property by Developer and the Subtenants and their respective concessionaires, licensees, officers, employees, agents, customers and invitees to all of the Park Site now and hereafter existing including, but not limited to the baywalks, sidewalks, playgrounds and other open spaces; (iv) the non-exclusive right (but subject, nevertheless to Developer's first having obtained any permits or licenses required by law or applicable regulation), to use portions of the Park Site for the staging of promotional events designed to attract patrons or customers to the area at whatever is the then current charge for such use; (v) the right and easement to install and maintain such footings and underground supports along the boundaries of the Leased - 34 - Property extending not more than six (6) inches under and into the Park Site, as shall be necessary in connection with the construction of the Improvements and as shall be shown on the approved Construction Plans; (vi) the right and easement to enter onto those portions of the Park Site adjacent to the Leased Property for the purpose of performing maintenance and repairs to the Improvements; (vii) non-exclusive rights and easements for installation, maintenance, repair and replacement of utility 'facilities and for pedestrian and vehicular access to and from Area A-4 and/or Area A-5 over and across the Park Site to the Leased Property and to Biscayne boulevard, at such locations as may be approved by the City Manager from time to time; (viii) non-exclusive right and easerrlent for pedestrian access between the FEC Tract and the Leased Property at such locations as may be approved by the City Manager, from'tirne to'time; and (ix) non-exclusive right and easement between the Garage Parcel and the Leased Property and between the Park Site and Leased Property for the construction, installation- use and maintehance of pedestrian bridges at locations shown on the Construction Plans or at such other locations as the City Manager may approve from time to time. The cost of maintenance, care and replacement of pedestrian bridges between the Leased Property and Parking Garage shall be shared equally by the Developer and the lessee under the Parking Garage Ground Lease. In the case of pedestrian bridges between the Leased Property and the Park Site, Developer shall design the Improvements for attachment of the pedestrian bridges. The cost of repair, replacement and maintenance of such pedestrian bridges shall be borne by the Developer. The Developer shall contribute $75,000.00 towards the cost of design and construction of one pedestrian bridge with the City -35- to bear the balance of the cost, if any. The City shall be responsible for designing and constructing the pedestrian bridges which design shall be subject to Developer's reasonable approval. It is the intent of this Agreement that the Developer Improvements be confined to the limits of the Leased Prciperty. i" (c) Limitations on Easement, Rights. The rights and easements granted or reserved in paragraphs (a) and (b) of this Section 2.3 shall be limited as follows: (1) with respect to the County Easement and the Developer Utility Easement, except to the extent shown on the approved Construction Plans, no building or other structure shall be erected on the surface of same without the prior written consent of the City, except that Developer may place or construct street furniture, kiosks, or ether removable structures in any such area on the Leased Property, provided Developer shall promptly remove the same, at its, expense, upon the City's or appropriate utility's request in order to permit the City or utility to perform maintenance services on the utility lines in the easement area, provided that in the design and construction of the Developer Improvements, Developer will use its diligent efforts to cluster underground utility lines and to minimize other construction below the surface of the easement area; (2) With respect to the portion of the City Storm Sewer Easement area which may lie directly beneath the Developer Improvements, the City and Developer agree, within a reasonable time period from the date hereof, to enter into an easement agreement governing the use, maintenance, repair and replacement of the utilities within such easement area in order to provide Developer with sufficient assurances of the use and enjoyment of that portion of the Developer Improvements affected thereby. 36 (3) the party having the benefit of any such easements (A) shall carry on any construction, maintenance and repair activity with diligence and dispatch and shall use its diligent efforts to complete the same in the shortest time Possible under the circumstances, and (B) shall not carry on any construction, maintenance or repair activity in the easement area in such manner as td unreasonably interfere with the use and enjoyment of they servient tenement, and, except in the case of the County Easement, in carrying on such activities, will do so in such a mariner as not to unreasonably interfere With business or businesses then being conducted in the Improvements or on the Leased Property by Developer or its Subtenants. City shall use its diligent efforts to obtain approval of Dade County to the foregoing provision with respect to the County Easement; (4) except in the event of emergency, the party having the benefit of such easement shall not carry on any construction, replacement, maintenance or repair activity at any time in such easement area unless such party shall have given at least sixty (60) days advance notice to the other party of its intention to do so; provided; however, that in the event of an emergency affecting the County Easement the City will use ,diligent efforts to obtain the consent of the Dade County Water and Sewer Authority to such notice requirements; (5) promptly upon the completion of any such constrdction, repair or maintenance activity, the party having the benefit cif such easement shall, at its expense, restore the surface of the easement area as nearly as possible to its former condition and appearance; (6) Developer and City agree to enter into an easement agreement governing the use, maintenance, repair and replacement of the City Storm Sewer Easement, and any other utility easement area which may be located wider the Improvements within a reasonable time period from the date of this Lease in carder to provide the Developer with sufficient assurances with respect to the use and enjoyment of that portion of the Improvements affected thereby; and (7) with respect to the Developer Vehicular Access Easement, the City may from time to time, erect signs, temporary barriers or other reasonable traffic controls designed to limit the use of the easement areas to service and emergency vehicles. Annexed hereto as Exhibit J is a drawing showing all easements affecting the Leased Property, which survey has been reviewed by the Director of Public Works of the City of Miami and found by him to be accurate. (d) Duration of Easements. Unless a shorter term is provided, each of the rights and easements granted or reserved in paragraphs (a) and (b) of this Section 2.3 shall be for the Original Term of this Lease, for each Renewal Term, and for the term of any new lease made pursuant to the provisions of Sections 6.1 and 6.2. (e) Confirmatory Instruments. Each party covenants and agrees that from time to time at the request of the other party, it shall execute and deliver such additional documents or instruments confirming the rights and easements granted and reserved in this Section 2.3 or more precisely fixing their location as such requesting party shall deem to be necessary or desirable. The City Manager is hereby authorized and empowered on behalf of the City to execute and deliver, from time to time, any such confirmatory documents or instruments. Section 2.4 Title of Leased Property. The City represents, covenants and warrants that it has good and merchantible fee simple title to the Leased Property and all of the improvements thereon, which title is free and clear from all covenants, easements, liens, clouds of title on other restrictions except for those listed in Exhibit E. Section 2.5 Rental. (a) Rentals Payable. Developer covenants and agrees to pay the City as rental ("Rental") for the Leased Property, the following: (i) During the Original Term, an annual sum (the "Annual Basic Rental") equal to the greater of: (1) Thirty-five (35%) percent of Net Income Available for Distribution of the Project; or (2) The Mir4imum Base Rental for each Rental Year, as follows: FULL RENTAL YEARS MINIMUM BASE RENTAL 1-2 $ 325,000 3-6 $ 650,000 7-35 $1,000,000 36-45 As determined below Notwithstanding the above, if in any given Rental Year, 35% of Net Income Available for Distribution is less than the Minimum Base Rental, the difference shall be credited to the Developer in an account known as the "Cumulative Credit Balance Account" which credit shall accrue interest at eleven (11%) percent, compounded annually. The maximum amount to be credited to the Cumulative Credit Balance Account in any Rental Year shall be no greater than the Minimum Base Rental for that Rental Year. In any subsequent Rental Year for which a credit balance exists in the Cumulative Credit Balance Account, the Rental due to the City, shall be reduced, to not less than that Rental Year's Minimun Base Rental, by an amount applied from the remaining credit balance in the Cumulative Credit Balance Account. This procedure shall continue each Rental Year until the credit balance in the Cumulative Credit Balance Account is reduced to zero. Further, the Minimum Base Rental may, at - 39- the City's option, be increased to an amount in excess of $1,000,000 at the beginning of the thirty-sixth (36th) Rental Year if the average of the Annual Basic Rental paid during the preceding three (3) Rental Years shall exceed $1,000,000, in which event the Minimum Base Rental for the thirty-sixth through forty-fifth Rental Years shall be the average of the Annual Basic Rental paid by Developer for the thirty-third, thirty-fourth and thirty-fifth Rental Years. (ii) During each Renewal Term, an annual sum equal to the greater of: (1) The average of the Annual Basic Rental paid during the three (3) consecutive Rental Years prior to the end of the Original Term or the preceding Renewal Term, as the case may be and shall, at the City's option, be the New Minimum Base Rental, or '(2) Thirty-five (35%) percent of the Net Income Available for Distribution; provided, however, that in no event may such annual rent during (i) the First Renewal Term be less than the Minimum Base Rental payable during the final year of the Original. Term, and (ii) the Second Renewal Term be less than the Minimum Base Rental payable during the final year of the First Renewal Term. (iii) Developer shall pay during the Original Term and any Renewal Term to the City as Additional Base Minimum Rental an additional sum of Fifty Thousand Dollars ($50,000) per Rental Year ("Area A-5 Minimum Rental") upon occupancy of Area A-5 pursuant to Section 2.1 hereof. (iv)- Pursuant to the terms of the License, the City is obligated to pay Miami MotorSports, Inc. the amount of $100,000 as consideration for the granting of the Removal Option (hereinafter defined) by Miami MotorSports, Inc. Developer agrees to pay said $100,000 to the City on 40 w the Possession Date. Such amount when paid by Developer shall be credited to the .Cumulative Credit Balance Account. Developer and the City further agree that (i) Developer shall have the right to cause the City to exercise the Removal Option during the years 1986, 1987 and 1988, inclusive, by giving notice in writing to same within forty-five (45) days after the previous year's Race Event, provided that Developer shall pay to the City S50,000 each time Developer shall cause the City to exercise the Removal Option. The parties further agree that Developer shall pay $50,000 to the City with respect to each time the City shall exercise the Removal Option as to any Race Event which is scheduled to occur while the Bayside Specialty Center is under construction, notwithstanding the fact that Developer shall not have caused the City to exercise same. Developer shall pay such sums to the City upon each date that the City is requited to pay Miami MotorSports, Inc. with respect to same. If Miami MotorSports, Inc. shall not conduct a Race Event with respect to any year for which Developer shall have paid the City $50,000 as aforesaid, the City shall promptly reimburse Developer said $50,000 and such sum shall be deducted from the Cumulative Credit Balance Account. All sums paid by Developer pursuant to this subparagraph 2.5(a)(iv) shall be credited to the Cumulative Credit Balance Account. As used herein, the term "Removal Option" shall mean the right granted to the City in the License to require that the annual Grand Prix Race Event be on a course located on Biscayne Boulevard and not located in any portion of Bayf rant Park. (b) Continuous Operation. Developer covenants and agrees to continuously operate the Project consistent with prudent business practices and the standards of operation set forth in Section 4.2 hereof (considering twelve (12) month use) in order to achieve a reasonable level Of profitability. (c) Payment of Rental. Annual Basic Rental shall commence to accrue on the Rent Commencement Date. The Area A-5 Minimum Rental shall commence when the Subtenant thereof or the Developer shall open such premises to the /public for business (the "A-5 Rental Commencement Date"). Minimum Base Rental and Area A-5 Minimum Rental shall be payable in equal Monthly installments in advance on the first day of each full calendar month following the Rent Commencement Date, as the case may be, during the term of this Lease, the first such payment to include also any prorated Minimum Base Rental for the period from the Rent Commencement Date and/or the Area A-5 Rental Commencement Date to the first day of the full calendar month thereafter. Annual Basic Rental in excess of Minimum Base Rental shall be determined each calendar quarter and annually pursuant to the reports required under Section 2.5(e). To the extent that Annual Base Rental for any calendar quarter may exceed Minimum Base Rental for the same period, Developer shall pay the City the difference forty-five (45) days after the close of each calendar quarter with an adjustment to occur based upon each Rental Year one hundred twenty (120) days after each Rental Year. Annual Basic Rental shall be payable without notice or demand therefor and shall be paid to the City' at the Office of the Director of Finance, 3500 Pan American Drive, Miami, Florida 33133 or at such other place as the City Manager shall designate from time to time in a notice given pursuant to the provisions of Section 12.5. Arty late payment shall automatically accrue interest at a rate equal to two (2) percent above that rate charged by the Citibank, N.A., of New York to its best commercial customers, generally referred to as its prime rate ("Default Rate") from the date that payment was due. Any overpayment of Annual Basic Rental at the end - 42 - of each Rental Year shall be paid to Developer within thirty (30) days of receipt of such report or, at the option of Developer, the Developer shall credit such amount to the Rental due in the next Rental Year. If there is an underpayment of Annual Besic.Rental, Developer shall pay the City the amount of the deficiency within thirty (30) days of the City's receipt of the report. (d) Refinancing,, In the event that Developer proposes to engage in any Refinancing with respect to the Project or any portion thereof, Developer shall give notice thereof to the City Manager not later than forty-five (45) days prior to the consummation of the transaction or transactions by which such Refinancing is accomplished. Such notice shall show, in reasonable detail, Developer's base estimates of the amount of the Refinancing Proceeds and the expected. affect of such Refinancing upon Rental and Net Income Avail- able for Distribution for three (3) full Rental Years next following consum- mation of such Refinancing. Within thirty (30) days after such notice is given, the City shall elect, by giving notice of such election to the Developer, either: (i) to participate in such Refinancing, in which case the Developer shall pay or cause to be paid to the City, upon consummation of such Refinancing, an amount equal to thirty-five percent (35%) of the Refinancing Proceeds less any amounts then in the Cummulative Credit Balance Account and thereafter Rental payments shall be determined by adjusting Debt Service Payments and Developer's Equity Investment to reflect such Refinancing; or (ii) not to participate in such Refinancing, in which case (x) no portion of such Refinancing Proceeds shall be payable to the City and Rental with respect to such portion of the Project that is refinanced shall thereafter be determined in the same manner as prior to such Refinancing (that is to say that in the determination of Rental with respect to such portion of the Project that is refinanced, Debt Service Payments and Developer's Equity Investment with respect thereto shall not be adjusted so as to reflect such Refinancing, but shall continue on the Same basis as prior to such Refinancing), and (y) with respect to any subsequent Refinancing, Refinancing Proceeds shall be calculated as though such Prior Refinancing shall not have occurred. If the City shall fail to make such election within said thirty (30 day period, the City shall be deemed to have elected to not participate in such Refinancing. (e) Developer's Records. For the purpose of permitting verification by the City of any amounts due on account of Annual Basic Rental, Developer will keep and preserve for at least three (3) years in Dade County, Florida, at the address specified in Section 12.5, auditable original or duOlicate books and records for the Project which shall disclose all information required to determine Development Costs, Annual Basic Rental, Operating Contributions and Operating Expenses and other information necessary to comply with the terms of this Agreement. After five (5) days advance notice to Developer, the City through its City Manager or his designee, shall have the right during business hours to inspect such books and records and to make any examination or audit thereof which the City may desire. If such audit shall disclose a liability for Rental in excess of the Rental theretofore paid by Developer fdr the period in question, Developer shall promptly pay such additional Rental and if such audit shall disclose an overpayment of the Rental theretofore paid, the City shall promptly return the excess to the Developer. Developer further covenants and agrees to deliver to the City commencing as of the Rent Commencement Date within forty-five (45) days after the close of each calendar quarter and after the termination of the Lease, a statement showing, in reasonable detail, the computation of the Annual Basic Rental, Area A-5 Minimum Rental, Operating Contributions, Operating Income, Operating Expenses and Net Income Available for Distribution for the preceding calendar quarter. The quarterly statement shall be signed and verified by an appropriate, authorized officer or General Partner of Developer stating specifically that such officer has examined the report, that such officer's examination included such tests of Developer's books and records as such officer cdnsidered necessary under the circumstances, and that such report presents fairly the Rental due with respect to the preceding calendar quarter. If Developer shall fail to deliver the foregoing statement to the City within said period, or the City shall give written notice of its desire to audit the quarterly statements the City shall have the right to either conduct an audit itself or to employ an independent certified public accountant to examine such books and records as may be necessary to certify the amount of the Rentals due with respect to such calendar quarter. Developer shall promptly pay to the City, as Additional Rental, the cost of any audit performed by or for the City, in the event the City's audit was in lieu of a quarterly report by Developer or if the City audits the quarterly report at its own initiative and demonstrates a discrepancy of more than three percent (3%) in the amount of Annual Basic Rentals due to the City. Developer shall provide the City with an annual Audited Financial Statement, certified by an independent Certified Public Accountant, within one hundred twenty (120) days after the close of each Rental Year which shall be subject to the audit provisions of the previous subparagraph. (f) Pre -Construction Contributions. At the times set forth below, Developer shall pay to the City Three Million Six Hundred Fifty Thousand ($3,650,000) Dollars in the form specified below as Additional Rental, which amount shall be recognized as a part of the Development Costs. These payments -45- shall be retained by the City if this Lease is ter'hinated (and a new lease has not been entered into pursuant to subparagraph 6.i(c)(ix) below) by reason of an Event of Developer Default. Said payment shall be in addition to any damages that the City may be entitled to under this Agreement provided, however, that such payment may constitute an offset against any damages a /court or the Arbitrators may award the City ih connection with such Event of Developer Default. The City covenants and agrees to use these funds in Oulfillment of the purposes for which the funds and given, as specified below, so long as as an Event of Developer Default haS not occurred and is continuing under the terms of this Agreement. $1 Million To be paid to the City on the Possession Date, such proceeds to be used by the City for construction of improvements in Bayfront Park. $2.65 Million To be paid to the City on the Possession Date, such funds to be paid to the City as reimbursement with respect to the 'acquisition of all outstanding rights in the Restaurant Parcel so that same can be delivered to Developer on the Possession Date, free and clear of any rights of others except as set forth in Exhibit E provided, however, that an the Possession Date, all references contained in Exhibit E to any leases, licenses (except with respect to the Grand Prix Agreement, if applicable), or other occupancy or possessory agreements with respect to the Restaurant Parcel shall be deemed deleted. The Developer shall not be obligated to make SuLh payments, if Developer is not reasonably satisfied that the City shall have budgeted and encumbered the amount of Four Million and No/100ths Dollars ($4,000,000.00) by Ordinance of the City Commission, authorizing the City Manager to pay such monies in fulfillment of this Agreement, and encumbered ih the City's account or accounts. The City hereby agrees to pay such monies to developer to pay the cost of the Tenant Allowance items to be constructed by ()e+ieloper pursuant to a disbursement agreement to be agreed upon between the dit+ and Developer. Notwithstanding the foregoing, Developer shall not be obligated to make the above -mentioned $2,650,000 payment until Developer has received satisfactory evidence that all rights of any person or entity other than the Developer or the City with respect to the Restaurant Facilities or any benefits have terminated and are no longer in force and effect including any encumbrances or exclusivity clauses which would adversely effect the Developer's use and any of Leased Property and the Improvements. Such evidence shall include (without limitation) copies of all executed documents relating to such terminations and a title report prepared at Developer's cost, indicating any such interests or restrictions no longer exist. Section 2.6 Covenants for Payment of Public Charges by Developer. Developer, in addition to the Rental, covenants and agrees to pay and discharge, before any fine, penalty, interest or cost may be added, all real and personal property taxes, all ad valorem real property taxes, all taxes on rentals payable hereunder and under subleases, public assessments and other public charges including but not limited to electric, water and sewer rents, rates and charges (all such taxes, public assessments and other public charges - 47 - being hereinafter referred to as "Public Charges") levied, assessed or imposed by any public authority against the Leased Property, including all improvements thereon, provided, that Developer's obligation to pay and discharge Public Charges levied, assessed or imposed against or with respect to Leased Property shall not commence until the Possession Date. 'Notwithstanding the provisions of this Section 2.6, Developer shall have the right to contest the amount or validity, in whole or in part, of any Public Charges by appropriate proceedings. The City agrees to consent to and/or formally join in any such proceedings to the extent it may be allowed by law, if such consent and/or joinder be required by law for the prosecution thereof. Developer shall pay all charges for metered water, sewer service charges and other fees or charges lawfully imposed by any public authority upon or in connection with the Leased Property. The City agrees that it will not impose any special assessment or other Public Charges (other than ad valorem real property taxes) against the Leased Property or the Improvements with respect to the construction, operation, repair and maintenance of any improvements the City is obligated to construct pursuant to this Lease or any special assessment or other Public Charges for the purpose of repayment of the Tenant Allowances to be granted by the City pursuant to the terms hereof or repayment of UDAG. The City retains all its rights to impose special assessments or other public charges for all other purposes. Developer, upon written request, shall furnish or cause to be furnished, to the City Manager, official receipts of the appropriate taxing authority, or other proof satisfactory to the City Manager evidencing the payment of any Public Charges, which were delinquent or payable with penalty thirty (30) days or more prior to the date of such request. Section 2.7 Approvals and Consents. Wherever in this Lease the approval or consent of any party is required, it is understood and agreed that such approval or consent will not be unreasonably withheld or delayed. Section 2.6 Security and Police Protection. Developer shall have the responsibility for providing all security and protection for the Developer Maintenance Area on Exhibit K. Developer and City may enter into an agreement requiring the City to provide such security and protection within the Developer Maintenance Area on Exhibit K. If the City and Developer are unable to enter into such agreement, the Developer shall be responsible for providing security and protection throughout the Developer Maintenance Area. The City shall provide the same security and police protection for the Park Site and the City Maintenance Area as is afforded all other City open spaces with appropriate augmentation in the exclusive judgment of the City Manager during periods of high pedestrian activity limitation) during special public events. Section 2.9 City Improvements The including (without City shall provide phased replacement of seawalls and riprap, construction of a bay walk with infill and water taxi piers adjacent to the Leased Property and infill to Bayfront Park and the Leased Property as more particularly described in the plans for the City Improvements. Such improvements are collectively referred to throughout this Lease as "City Improvements". Section 2.10 Condition of Leased Property. On the Possession Date the City shall deliver to the Developer possession of the Leased Property and the existing Improvements, free of any and all tenancies or other rights or claiMi of rights td its use and occupancy. Prior to the Possession Date, the Leased Property and the existing Improvements shall be maintained by the City and delivered to Developer in good serviceable condition, ordinary wear and tear excepted. The City agrees not to adversely or materially alter the Leased Property or any existing Improvements prior to the Possession Date 7without Developer's prior written approval. The obligations of Developer under this Lease (including, without limitation, the obligations to pay Rental hereunder) are subject to the delivery in good arid serviceable condition (ordinary wear and tear excepted) to the Developer on the Possession Date of the Leased Property and Improvements located thereon as of the date of this Lease, including (without limitation) the restaurant building and improvements ("Restaurant Facilities") located on that portion of the Leased Property (the "Restaurant Parcel") more particularly described in that certain lease agreement dated May 5, 1970 by and between the City and Restaurant Associates Industries, Inc. ("Restaurant Lease"), which is shown on Exhibit A-1. If at any time between the date of execution of this Agreement and the Possession Date the Restaurant Facilities are substantially damaged or destroyed, the City shall, at Developer's option, which option must be exercised in writing within ninety (90) days from date of such damage or destruction or from the Possession Date, as the case may be, (i) immediately repair and restore the Restaurant Facilities, or (ii) immediately assign to Developer all of the City's right, title and interest in any payment, proceeding or award by any insurance company or other person on account of the damage or destruction. If the insurance proceeds either available to the City or Developer are inadequate to complete the repairs and restoration of the Restaurant 50 Facilities, the City or the Developer, as the case may be, shall repair or restore to a size smaller than that existing prior to such damage and destruction based upon plans and specifications approved by the City, which approval shall not be unreasonably withheld or delayed if such reconstructed facilities harmonize with the architectural motif of the Developer 'Improvements and meet all other governmental approvals required. Section 2.11 Roadways and Utilities. The City shall without expense to Developer or public assessment against the Leased Property or Improvements, provide for the abandonment of all public streets and rights of way within the Leased Property. The City shall cooperate with and assist the Developer in the termination or transfer to the Developer, of all existing easement rights with respect to water mains, sanitary sewers, storm drains, conduits, gas and electric or steam distribution lines and fire alarm, traffic and phone systems, if any, in the Leased Property, except for the County Easement and the City Storm Water Easement, and the transfer to Developer of all vacated City streets. The City shall also transfer to Developer all easements and rights of way at ,the Leased Property within its control. All termination, abandonment, transfer and relocation, as applicable, to be done shall be done or performed in accordance with provisions of this Section 2.11 with respect to the Leased Property as rapidly as practicable and in a manner which will coordinate in a reasonable manner with construction of the Developer Improvements. After the date Developer actually takes possession of the Leased Property, Developer shall provide temporary access across the Leased Property for persons authorized to use Miamarina, until the earlier to occur of (i) the commencement of construction of the Developer Improvements or (ii) the termi- nation of the agreement dated June 4, 1981 between the City and New world Marinas, Inc. ARTICLE III CONSTRUCTION OF IMPROVEMENTS Section 3.1 Conformity of Plans. Preliminary Plans and Construc- tion Plans and all work by Developer with respect to the Leased Property and the construction of Developer Improvements thereon shall be in conformity With this Agreement, the Miami Charter and Code, the South Florida Building Cade, and all other applicable state, county and local laws and regulations. Section 3.2 Preliminary Plans. The City acknowledges that prior to the execution of this Lease, Developer has submitted to the City and the City has approved the concept plans (the "Concept Plans") for the construction of the Developer Improvements, a list of which is attached hereto as Exhibit F. Developer shall submit to the City Manager at the times hereinafter set forth, two sets of plans (the "Preliminary Plans"). For the purpose of this Lease, "Preliminary Plans" shall consist of site plans and structure elevations and sufficient detail to show site planning, architectural design and layout, materials, building construction, landscaped design, access, streets, and sidewalks. The City acknowledges that, in order to meet the schedule for construction, the Developer shall be submitting Preliminary Plans in stages for approval. The City shall not be required to issue permits or other formal governmental approvals to Developer for a particular phase until the City Manager has approved a Site Drawing depicting all phases of the Development and has approved the Preliminary Plans for the particular phase for which a permit or other formal governmental approval is requested. The Preliminary Plans for all stages of the Developer Improvements to be constructed shall be subtiitted td the City Manager on the date set forth on Exhibit G. Upon receipt Of each set Of Preliminary Plans representing a certain stage of construction, the City Manager shall review the same and Shall promptly (but in any event within fifteen (15) days after such receipt), 'give Developer notice of its approval or disapproval setting forth in detail its reasons for any disapproval. The City Manager's right to disapprove the Preliminary Plans submitted shall be limited to matters depicted in the Preliminary Plans for DeveloPer Improvements which do not conform substantially to the Concept Plans or previously approved Preliminary' Plans for other stages of the Project or are new elements not presented in the Concept Plans, or matters which are violations of this Lease or of applicable governmental ordinances, codes, plans, laws or regulations. If no response from the City is delivered to Developer within thirty (30) days after the submission of stich Preliminary Plans, or any resubmission thereof as hereinafter provided, they shall be deemed approved, except that no violations of applicable governmental ordinances, codes, plans, laws, regulations or of this Agreement shall be deemed waived thereby. In the event of a disapproval, Developer shall, within sixty (60) days after the date Developer receives the notice of such disapproval, resubmit such Preliminary Plans to the City Manager, altered .o meet the grounds of disapproval. Any resubmission shall be subject to review and approval by the City Manager, in accordance with the procedure hereinabove provided for an original submission, until the same shall be approved by the City Manager, provided that in any event Developer shall submit all Preliminary Plans for the construction of Developer Improvements which meet all Of the grounds for disapproval of which the City Manager has given notice not later than the first anniversary of the date of this Lease. City and Developer shall in good faith attempt to resolve any dispbtes concerning the Preliminary Plans. Section 3.3 Construction Plans. For the purpose of this Lease, "ConstruOtion Plans" shall consist of final working drawings and specifications including (without limitation) the following information: (a) definitive architectural drawings; (b) definitive foundation and structural drawings (the "Final Substructure Plans"); (c) definitive electrical and mechanical drawings including (without limitation) plans for all lighting facilities affecting the exterior appearance of the Developer Improvements; and (d) final specifica- tions; but excluding drawings and specifications relating to subtenant improvements. Not later than one hundred twenty (120) days after approval of Preliminary Plans for a particular stage of construction, Developer shall submit to the City Manager two sets of Construction Plans for the same stage. Upon receipt thereof, the City Manager shall review the same and shall promptly (but in any event within fifteen (15) days after such receipt), give Developer notice of its approval or disapproval, setting forth in detail its reasons for any disapproval. The City Manager's right to disapprove the Construction Plans submitted shall be limited to matters depicted in the Construction Plans which do not conform substantially to the approved Preliminary Plans or previously approved Construction Plans for other stages or are new elements not presented in the approved Preliminary Plans or are violations of this Lease or of gov- ernmental ordinances, codes, plans or regulations. If no response from the City is delivered to Developer within fifteen (15) days after the submission of such Construction Plans, or any resubmission thereof as hereinafter pro - vided, they shall be deemed approved, except that no violations or applicable laws, ordinances, codes, regulations or of this Agreement shall be deemed waived thereby. In the event of a disapproval, Developer shall, within sixty (60) days after the date Developer received the notice of such disapproval, resubmit the Construction Plans for that stage to the City Manager, altered to meet the grounds of disapproval. Any resubmission shall be subject to review and approval by the City Manager, in accordance with the procedure hereinabove provided for an original submission, until the same shall be approved by the City Manager, provided, that in any event Developer shall submit all Construc- tion Plans for the construction of Developer Improvements which meet all of the grounds for disapproval of which the City Manager has given notice not later than six (6) months after approval of all of the Preliminary Plans. The City and the Developer shall in good faith attempt to resolve any disputes regarding the Construction Plans. No approval lay the City Manager of any Con- struction Plans or Preliminary Plans pursuant to this Article shall relieve Developer of any obligation it may have at law to file such Construction Plans with any department of the City or any other governmental authority having jurisdiction over the issues or to obtain any building or other permit or approval required by law. Developer acknowledges that any approval given by City Manager pursuant to this Article III shall not constitute an opinion or agreement by the City that the plans are structurally sufficient or in compliance with any laws, codes or other applicable regulations, and no such approval shall impose any liability on or waive any rights of the City. Developer agrees that it shall provide the City with copies of all plans and specifications used in the construction of the Developer Improve- ments. Developer agrees tO use its diligent efforts to obtain the consent of the Leasehold Mortgagee to the vesting in the City of all rights, title and interest in the plans and specifications if this Lease is terminated by reason Of an Event of Developer Default and no new lease is entered into pursuant to Subparagraph 6.1(c)(ix) below. Section 3.4 Facilities to be Constructed. Developer agrees to erect the Improvements described in subparagraphs (a) through (f) of the third Paragraph of the Statement of background and Purpose on the Leased Property, .t its sole cost and expense which Improvements shall contain the facilities more particularly described in the Construction Plans and shall conform to the covenants contained in Section 2.2 and are referred to throughout this Lease as "Developer Improvements". Section 3.5 Maintenance of Park Site and Leased Property The City, without cost or expense to Developer or public assessments against the Leased Property or the Improvements, at all times during the term of this Lease, (including any Renewal Term and any new lease executed pursuant to the provisions of Sections 6.1 and 6.2) shall maintain and keep or cause to be maintained and kept ih7 good order, repair and appearance, commensurate with the quality of maintenance found in the area shown and designated as "Developer Maintenance Area" on Exhibit J all of the property and improvements (including, without limitation, the City Improvements) in the Park Site and those portions of. the. Leased Property shown and designated as "City Maintenance Area" on Exhibit K. -The Developer, without cost or expense to the City, at all times during the term of this Lease, (including any Renewal Term and any new lease executed pursuant to the provisions of Sections 6.1 and 6.2) shall maintain and keep or cause to be maintained and kept in good order, repair and appear- ance all Of the property and improvements located in that portion of the Leased Property shown and designated as Developer Maintenance Area o Exhibit J Section 3.6 Access. Prior to delivery of possession of the Leased .:Property and the existing Improvements or any part thereof to Developer, the City shall permit Developer access thereto whenever and to the extent necessary to carry out the provisions of this Agreement. The City shall also permit, including (without limitation) the placement of construction trailers and stagirig area on or adjacent to the Leased Property at no cost to the Developer, and the mooring of construction barges or other vessels at Miamarina or the adjacent docks at locations reasonably acceptable to the City Manager and Developer, at reasonable fees or charges to the Developer. The provisions of this paragraph shall not take effect until Developer, at its sole cost and expense, shall have secured or caused to be secured comprehensive general public liability insurance as required in Article IX of this Agreement. Section 3.7 Construction Period. Developer shall commence construction of the Developer Improvements not later than fifty-five (55) days after the Possession Date or as'soon thereafter as weather permits (but not earlier thdn the approval of the Construction Plans) and shall complete the same substantially in accordance with the Developer's approved Construction Plans in accordance with the Development Schedule attached hereto as Exhibit G. The City agrees to submit Preliminary Plans and Construction Plans for City Improvements to Developer for review and comMent for any City Improvements to be designed Uy City. The City shall commence construction of the City Improvements and Shall complete the same substantially in accordance with the City's approved Construction Plans in accordance with Exhibit G. At the request of either party, the parties will execute and deliver from time to 'time such certificates, documents or instruments as may be appropriate to confirm the dates of commencement or completion of construction as above provided, which certificates, documents or instruments may be recorded by the party requesting the same at its expense. Section 3.8 Progress of Construction. Subsequent to the delivery of possession of the Leased Property and existing Improvements to Developer, and until construction of the Developer Improvements has been completed, Developer shall keep the City Manager apprised of the progress of Developer with respect to such development and construction. During such period the work of Developer shall be available for inspection by a full-time, on -site representative of the City Manager. The Developer shall provide suitable work space and utilities for the representative at Developer's cost. Developer, by executing this Agreement, represents it has visited the site, is familiar with local conditions under which the construction and operation is to be performed, will perform all test borings and subsurface engineering generally required at the site under sound and prudent engineering practices, and will correlate the results of its test borings and subsurface engineering and other available studies and its observations with the requirements of the construction and operation of the Project. The Developer shall restore the site to its original condition after all testing, and shall provide the City with a copy of all results. The City makes no warranty as to subsoil Conditions. Oeveldper shall not be entitled to any adjustment of Rental or of any applicable time requirements in the event of any abnormal subsoil conditions unless the subsurface conditions are so unusual they could not have been reasonably anticipated. Section 3,9 Certificate of Final Completion. Promptly after completion of the Developer Improvements on the Leased Property in accordance with the provisions of this Agreement, the City Manager will furnish Developer with an appropriate instrument so certifying (the "Certificate of Final Completion"). The Certificate of Final Completion shall be in such form as will enable it to be recorded among the Land Records of Dade County. If the City Manager shall refuse or fail to provide such certification in accordance herewith, the City Manager shall within thirty (30) days after written request by Developer, provide Developer with a written statement indicating in adequate detail in what respects Developer has failed to complete the Developer Improvements in accordance with the provisions of the Agreement, or is otherwise in default, and what measures and acts, in the opinion of the City Manager, are necessary for Developer to take or perform in order to obtain such certification. Section 3.10 Connection of Building to Utilities. Developer, at its sole cost and expense, will install or cause to be installed all necessary connections between the Developer Improvements constructed or erected by it on the Leased Property and the water, sanitary and storm drain mains and mechanical and electrical conduits whether or not owned by the City and/or the Dade County Water and Sewer Authority. Developer shall pay for the additional cost, if any, of locating and installing new facilities for sewer, water, electrical, and other utilities as needed to service the Project. -59- Section 3.11 Permits and Approvals. Except as otherwise provided in this Section 3.11, 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 perform any and all of the work or operations contemplated to be 'done or performed under any of the provisions of this Agreement including, but not limited to, any alterations and renovations made pursuant to Section 3.14 hereof, and shall pay any and all fees and charges due to and collected by the City in connection with the issuance of any such permits and approvals. If the City Manager's office shall be vacant or if the authority of the City Manager shall change such that the City Manager shall not have the full authority to perform the obligations imposed on that office envisioned under this Lease, then the City shall, promptly upon request of the Developer, designate such other officer or department as may be appropriate to perform the City Manager's obligations. Developer shall secure and pay for any and all permits and approvals necessary For proper construction.and completion of the Developer Improvements with the exception of the permits and approvals required pursuant to Section 380.06, Florida Statutes and/or Chapter 33A of the Dade County Code, if any (the "Environmental Laws"). Developer shall secure any and all permits and approvals, except for the Environmental Laws, required to perform any and all of the work or operations contemplated to be done or performed under any of the provisions of this Agreement including, but not limited to, any alterations and renovations made pursuant to Section 3.14 hereof, and shall pay any and all fees and charges due to and collected by the City in connection with the issuance of any such permits and approvals. In connection With the satisfaction of any requirements imposed by the Environmental Laws the City agrees to pursue a Binding Letter of Determination pursuant to Section 380.06(4)(a), Florida Statutes and/or a Developers Agreement pursuant to Rule 98-16.38, ,Florida Administrative Code andfdr a Development Order pursuant to Section 380,06, Florida Statutes and/or .:an+y other good faith means designated by the City to satisfy such requirements. Should the City pursue a letter of interpretation or other Dade County Development of COuhty Impact process for any portion of the Leased Property, the City shall be financially responsible for filing and processing any necessary documentation submitted in connection therewith, provided, however, that nothing herein contained shall be construed to require the City or Developer to take any act or expend any funds in order to comply with any of the conditions contained within any Development Order, or other official actioh, .issued as a result of these pursuits. Developer shall have the right to review and approve any such documentation prior to its submission to the relevant governmental agency, and shall be notified of all meetings with governmental staff or officials related to the processing of any of the aforesaid administrative proceedings so that Developer or its representative shall have the option of attending such meetings. Developer agrees to cooperate with the City to the maximum extent possible in these administrative proceedings, including, but not limited to, providing such technical assistance and information as Developer may have reasonably available to contribute to the City's efforts. Section 3.12 Compliance with Laws. Developer will comply in every respect with any and all federal, state, county and municipal laws, ordinances, rules, regulations, orders and notices now or hereafter in force or issued which may be applicable to any and all of the work or Operations to be done, performed or carried on by Developer under the provisions of this Agreement including alterations and renovations pursuant to Section 3.15 of this Agreement. Nothing herein shall limit the right of Developer to contest :the validity or enforceability of any statute, law, ordinance, rule, regulations, order or notice with which Developer knay be required to comply hereunder. Section 3.13 Extension ❑f Time Requirements. The times within which Developer must submit Preliminary Plans, Construction Plans and evidence of equity capital and comMitments for mortgage finanbing, and the times within which Developer must coith ence and complete the development of the Leased Property and the construction of the Developer Improvements thereon as specified in this Article may be extended in writing by the City Manager in its sole discretion, for such periods of time as it deems advisable, for good and sufficient cause shown by the Developer to the reasonable satisfaction of the City Manager. Any such extension of time shall be in writing and in such form as will enable it to be recorded among the Land Records of Dade County. Section 3.14 Alterations and Renovations. After the completion of construction of the Developer Improvements, Developer from time to time may make such alterations or renovations thereof as it shall deem desirable, provided, however, that no renovation or alteration which affects the exterior appearance of the Improvements or substantially affects the overall character and appearance of any interior mall, court or public circulation area shall be made until such time as the City Manager shall have approved definitive construction plans and specifications therefore, which approval shall not be unreasonably withheld or delayed. Developer must secure and pa;y for any and all permits and approvals required to perform ahy of the contemplated alterations or renovations. Section 3.15 Art in Public Places. The Developer shall utilize 1/2 of 1 percent of all Developer construction funds ("hard -cost" line items only) for art in the public areas of the Leased Property. In addition, Sixty Thousand and No/100ths Dollars ($60,000.00) of the $4,000,000 "to be paid by the City in respect of the Tenant Allowance must be utilized for art in the public areas of the Leased Property pursuant to Ordinance No. 8227. ARTICLE IV LAND USES Section 4.1. Land Uses. Developer and the City agree, for themselves and their successors and assigns, to devote the Leased Property, and the Park Site to the uses specified in this Agreement and to be bound by and e:omply with all of the provisions and conditions of this Agreement. Section 4.2. Character and Operation of Improvements. The parties recognize and acknowledge that the manner in which the Leased Property and *Improvements are developed, used and operated are matters of critical concern to the City by reason of (i) the prominence of the lobation in Bayfront Park to the Leased Property, and (ii) the impact which the development of the Leased Property is expected to have upon the surrounding Park Site and upon the economic development of the downtown area of the City. In order to give the City assurance as to the manner in which the Project will be used and operated, Developer' agrees that at all times during the term of this Lease, Developer will use its diligent efforts to Operate the Project as a first class Waterfront Specialty Centhr and to maintain a level of quality of character and operation of the Project which is comparable to the level of quality of character and operation, at the time of execution and delivery of this Lease, to Harborplace in Baltimore. From time to time Develdper will establish such reasonable rules and regulations governing the use and operation by Subtenants of their premises as Developer shall deem necessary or desirable in order to assure the level of quality and character of operation required herein; and it will use all reasonable efforts to enforce such rules and regulations. Notwithstanding the foregoing, Developer shall be bound by the covenants and agreements set forth in this Section 4.2 only so long as the development, use, operation, security and maintenance by the City of the Park Site shall be of a comparable level of quality and character commensurate with the quality and character of the Project. ARTICLE V ANTI -PECULATION; ASSIGNMENT Section 5.1 Definitions. As used herein, the term: (a) "Transfer" means: (i) any total or partial sale, assignment or conveyance (other than by a Leasehold Mortgage or Financing Sublease) or any trust or power, or any transfer in any other mode or form of or with respect to this Lease or of the leasehold estate in the Leased Property or any part thereof or any interest therein, or any contract or agreement to do any of the same; (ii) any transfer of the stock of 'the General Partner of Developer ar of any Owner, other than an Owner whose shares are publicly traded; or (.ii) any merger, consolidation or sale or lease of all or substantially all of the assets of Developer or of any Owner, other than an owner whose shares are publicly traded. (iv) Any Sublease of over fifty (50) percent of the Leaseable Area of the Project to a single Subtenant or Subtenants who are related in their ownership, except for a Financing Sublease. (b) "Owner" means: (i) any person, firm, corporation or other entity which owns, directly or indirectly, legally or beneficially, one percent (1%) or more of the stock of the General Partner of Developer (excluding any shareholder of an Owner whose shares are publicly traded) ar other form of ownership interest of the Developer; and (ii) any person, firm, corporation or other entity which owns, directly or indirectly, legally or beneficially, more than fifty percent (50%) of the stock of the General Partner of Developer or other form of ownership interest of any entity described in clause (i) or this clause (ii), but shall not include any shareholder of an Owner whose shares are publicly traded. (c) "Owner whose shares are publicly traded" means an Owner: (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 -65- (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 5.2. Purposes of Restrictions ,on Transfer. This Lease is granted to Developer solely for the purpose of development of the Leased Property and its subsequent use in accordance with the terms hereof, and not for speculation in landholding. Developer recognizes that, in view of: (a) The importance of the development df the Leased Property to the general welfare of the community; (b) The substantial financing and other public aids that have been made available by the City for the purpose of making such development of the Bayfront. Park possible; and (c) The fact that a transfer of the stock of the General Partner of Developer or a substantial part thereof, or involving or resulting in a' significant any other act or transaction change 'in the ownership or distribution of such stock or with respect to the identity of the parties in control. of Developer or the degree thereof, is for practical purposes, a transfer or disposition of the leasehold interest in the Leased Property then owned by Developer; the qualifications and identity of Developer and any Owner are of particular concern to the community and the City. Developer further recognizes that it is because of such qualifications and identity that the City is entering into this Lease with Developer, and, in so doing, is further willing to accept and rely on the obligations of Developer for the faithful performance of all undertaking and covenants by it to be performed. 66 _ Section 5.3. Transfers. Developer, on behalf of itself and any and all Owners, represents and warrants that neither Developer nor any Owner has made, created or suffered any Transfers. Except as permitted pursuant to subparagraphs (a) through (j) 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 an Institutional Investor or to an agent, designee or nominee of an Institutional Investor which is wholly owned or controllhd by an Institutional Investor or pursuant to a Financing Sublease, pursuant to Article VI. (b) Any Transfer directly resulting from the foreclosure of a Leasehold Mortgage or the granting of a deed in lieu of foreclosure of a Leasehold Mortgage or any Transfer made by the purchaser at foreclosure of a Leasehold Mortgage or by the grantee of a deed in lieu of foreclosure of a Leasehold Mortgage, provided that such purchaser or grantee is an Institutional Investor or an agent, designee or nominee of an Institutional Investor which is wholly owned or controlled by an Institutional Investor, and that such purchaser or grantee within six (6) months after taking possession of the Project, shall have entered into an Acceptable Operator's Agreement as described in subsection 6(d)(iv) of this Agreement. (c) Any Transfer directly resulting from a conveyance to a Lender/ Landlord of the Developerls interest provided that such Transferee, within thirty (30) days after taking possession of the Project, shall have entered into an Acceptable Operator's Agreement as described in Subsection VI(c)(iv) of this Agreement. (d) From and after the date that the Project has been in operation for seven and one-half (7-1/2) years after the Opening Date, any Transfer to (i) an Acceptable Operator consented tb by the City Manager and City Com- mission or (ii) a purchaser having a good reputation and financial resources in the opinion of the City Manager and the City Commission to own the Project '(an "Acceptable Purchaser") thalt shall have entered into an Acceptable Opera- tors Agreement with an Acceptable Operator. If Developer shall dispute a withholding of consent by the city pursuant to this subsection (d), Developer may submit such dispute to arbitration Pursuant to Section 10.5 hereof. The basis for such arbitration shall be the reasonableness of the City Manager and City Commission's decision as to whether or not such purchaser or operator met the criteria herein set forth to qualify as an Acceptable Purchaser and/or an Acceptable Operator. (e) Any Transfer to a joint venture, general or limited partnership, joint stock association or Massahhusetts business trust, a substantial interest in which is held by Developer and the other interests in which are held by an Institutional Investor or by such other persons, firms, corporations, or other entities as to which the City Manager shall have given his approval in his sole discretion, provided that, within thirty (30) days after gaining possession of the Project, the Transferee shall have entered into an Acceptable Operator's Agreement as described in Subsection 6.1(e)(iv) of this Agreement. (f) Any Transfer to an entity which is not an Owner, all of the stock or other form of ownership interest of which is owned by an Owner. (g) Any Transfer by a limited partner who is an Owner who is a Black American or a Hispanic American to a Black American or a Hispanic American or to an entity which is not an Owner but is owned or controlled by a Black American or a Hispanic American immediately after such Transfer, which is consented to by the City Manager and City Commission, which consent may not be unreasonably withheld. (h) Any Transfer teSulting from the death or dissolution of an Owner provided that same does not rbault in the dissolution or termination of Devel- 'oper or any general partner of Developer. (i) Any Transfer by an Owner who is a limited partner of Developer and who also is a Black Americ.en or Hispanic American into a charitable trust, a blind trust or for estate Planning purposes for the immediate family; pro- vided, however, as to a Transfer by an Owner for estate planning purposes, the effective control of ownershipi is to remain in the transferor or another Black American or Hispanic American. (j) Any Transfer of any limited partner's interest in Developer as security for capital contribution loans made by another partner and any Transfer of such limited partner.'s interest to a new entity or person which is consented to by the City Manager or City Commission pursuant to subparagraph (g) above, or to another partner of Developer as a result of default in repayment of a capital contribution loan. Any consent to a Transfer shall not waive any of the City's rights to consent to a subsequent Transfer. Any Transfer made in violation of the terms hereof shall be null and void and of no force and effect. Section 5.4. Notice of Transfer; Information as to Shareholders. (a) With respect to any Transfer which must be approved by the City, Developer shall give or cause to be given to the City written notice (including all information necessary for the City to make an evaluation of the proposed Acceptable Operator according to the requirements of this Agreement) of any Transfer of which Developer or its officers shall have knowledge, not less than sixty (60) days prior to any such proposed Transfer and the City shall within thirty (30) days Of its receipt of such information, advise Developer if it shall consent to same. If the City shall not consent to a Transfer, the City Manager shall state the reasons for such disapproval in his notice to Developer withholdihig his consent. If the City is not required to consent to a Transfer pursuant to the terms hereof, Developer shall notify the City in writing of same within thirty (30) days after the date of Transfer. (b) Developer shall from time td time throughout the term of this Lease as the City shall reasonably request furnish the City with a complete statement, subscribed and sworn to by the President or Vice -President and the Secretary or Assistant Secretary of the general partner of Developer, setting forth the full names and address' of holders of partnership interests in Developer, or any general partners of Developer or the stock of any general partner of Developer and the extent of their'holdings, and in the event any other parties have a beneficial interest i1 such stock, their full names and addresses and the extent Of such interest as determined or indicated by the records of Developer, by inquiry which such officers shall make of all parties who on the basis of such records own a one percent (I%) or more ownership interest in Developer or by such other knowledge or information as either of such officers shall have. Notwithstanding the foregoing, the information required by this subparagraph (b) shall not be required to be furnished with respect to the shareholders of any Owner whose shares are publicly traded. Section S.S. Effectuation of Certain Permitted Transfers. No Transfer of the nature described in subsections (d) and (e) of Section 5.3 shall be effective unless and until the entity to which such Transfer is made, by instrument in writing satisfactory to the City Manager and in form recordable among the land 'records, shall, for itself and its successors and assigns, and especially for the benefit of the City, expressly assume all of the obligations of Developer under this Lease and agree to be subject to all conditions and restrictions to which Developer is subject; provided, however, for the purposes of this Section 5.5 and Article VI hereof, that any Lender or Lender/Landlord transferee, their successors and assigns, shall not be required to assume any personal .liability under this Lease with respect to any matter arising prior or subsequent to the period of Lender's or of such transferee's (or such successor's or assign's) actual ownership of the leasehold estate created by this Lease (it being understood, nevertheless, that the absence of any such liability for such matters shall not impair, impede or prejudice any other right or remedy available to the City for default by Developer); and provided further, that the fact that any such transferee of, or any other successor in interest whatsoever to, the leasehold estate in the Leased Property or the Improvements, or any part thereof, shall whatever the reason, not assume such obligations or so agree, shall not (unless and only to the extent otherwise specifically provided in this Lease or agreed to in writing by the City) relieve such transferee or successor of or from such obligations, conditions or restrictions, or deprive or limit the City or or with respect to any rights, remedies or controls with respect to the leasehold estate in the Leased Property or the construction of the Improvements. Section 5.6. Transfers of the City's interests. The City represents and agrees for itself, its successors and assigns, that the City has not made or created and that it will not, during the term of this Lease, make or create or suffer to be made or created any total or partial sale, assignment, conveyance, mortgage, trust or power, or other transfer in any mode or form of dr with respect to the City's reversionary interest in the Leased Property or Improvements or any part thereof or any interest therein or any contract or agreement to do any of thP, same, to any purchaser, assignee, mortgagee or trustee unless such purchaser, assignee, mortgagee or trustee shall have the authority and the ability, in Developer's and Lender's opinion, to assume the obligations of the City under this Lease and the purchaser, assignee, mortgagee or trustee shall expressly agree to assume the Obligations of the City under this Lease, in a form satisfactory to Developer and any Lender. Notwithstanding the foregoing, any mortgage or like encumbrance of the City's interest shall be made expressly subject to the Lease and all Leasehold Mortgages permitted hereunder. Notwithstanding any such transfer and assumption, the City shall not be released from its obligations pursuant to Sections 2.8 and 3.5, which obligations are personal to the City and shall remain in effect during the term of this Lease. Section 5.7. Subletting. At the City's request, Developer shall provide to the City a copy of all Subleases for the Project Developer shall incorporate in all Subleases provisions concerning rentals and expenses that are compatible with the Annual Base Rental formula in this Agreement. Developer shall have the right to enter into Subleases of any part of the Leased Property or Improvements at any time and from time to time during the term of this Lease with such Subtenants and upon such commercially reasonable terms and conditions as Developer shall, in its sole discretion, deem fit and proper, provided, however, that Developer shall not enter into any Sublease with any Subtenant which does not deal with Developer at arm's length without first obtaining the City's approval, which approval the City may in its sole „,.retion withhold. If Developer shall contemplate making any Sublease with respect to which the City's approval is required pursuant to the foregoing sentence, Developer shall submit to the City a copy of such proposed Sublease together with any information concerning the identity of the Subtenant as the City may reasonably request. Within sixty (60) days after submission r+' /proposed Sublease and information, the City sr• ' _ notify Deve' `:.:,.r whether the Proposed Sublease is approved. In the ever` w,e :Aall fail to so respond Within sixty (60) days after of such Sublease and information, the !dame shall be conc..b,eiy deemed to have been Oproved by the City. Section 5.8. Minority Participation in Ownership. Developer agrees that not less than.twenty percent (20%) of the ownership interest in Developer Shall be held by persons who are Black Americans or Hispanic Americans or entities who would qualify as a Minority Business Enterprise controlled by Black Americans or Hispanic Americans as the term "Minority Business Enterprise” is defined in that certain Minority Participation Agreement attached hereto as Exhibit H. Notwithstanding ahy provision in this Lease to the contrary, any transfer by any limited partner of the Developer in violation of Article V shall be null and void, but shall not be deemed to be ah Event of Developer's Default. Notwithsitandirlg the foregoing, in the case of a permitted Transfer of a limited partner's interest under subparagraph (j) of Section 5.3., the. Developer agrees that its partnership agreement shall obligate the purchasing partner to resell the defaulting limited partner's interest to another Black American or Hispanic American or entity owned or controlled by a Black American or Hispanic American within two (2) years of the initial transfer of the defaulting limited partner's interest if the transfer is necessary to maintain the twenty percent (20%) ownership by Black Americans or Hispanic Americans. ARTICLE VI MORTGAGE FINANCING; RIGHTS OF MORTGAGEE Section 6.1. Leasehold Mortgage. (a) Notwithstanding the provisions set forth in Article V hereof regarding any Transfer, but subject to the provisions of this Article VI, provided that an Event of Default has not occurred and is not contihuing, Developer shall have the right at any time and from time to time to enbumber the leasehold estate created by this Lease and any Improvements by Mortgage, Sale-Subleaseback transaction, deed of trust or other security instr4.iment, including, without limitation, an assignment of the rents, issues and profits from the Project to secure repayment of a loan or loans (and assohiated obligations) made to Developer by an Institutional Investor (as defined below) for the sole purpose of securing the financing of the construction df any Developer Improvements made pursuant to the terms of this Lease or for the long-term financing or refinancing of the Project. In no event may the amount of such financing or refinancing exceed Development Costs. Developer shall deliver to City promptly after execution by Developer a true and verified copy of any Leasehold Mortgage (as defined below),or any Financing Sublease and any amendment, modification or extension thereof, together with the name and address of the owner and holder thereof. Developer may not encumber the leasehold estate created by this Lease, or any Improvements as security for any indebtedness of Developer with respect to any other property now or hereinafter owned by Developer and/or The Rouse Company or by affiliates of either of them, except that Developer may so encumber same as additional security for a loan or loans granted to Developer in connection with the Parking Garage. (b) For purposes of this Article VI: "Institutional Investor" shall mean any national bank organized under the laws of the United States or any commercial bank, or any savings and loan associaticm, savings bank, trust company or insurance Company organized under the laws of the United States or any state of the United States, or any pension, retirement or welfare trust or fund Supervised by a government authority of any state or the United States or any such trust or Iuhd administered by an entity which is supervised by a governmental authority, and shall include any agent, designee or nominee of an Institutional. Investor which ih wholly owned or controlled by such Institutional Investor; "Leasehold Mortgage" shall mean a mortgage, deed of trust or assignment of the rents, issues and profits from the Project, which constitutes a lien on the leasehold estate created by this Lease and on the fee interest of Developer in any Improvements during the term of this Lease; and "Lender" -and "Leasehold Mortgagee" shall mean an Institutional Investor who is the owner and holder of a Leasehold Mortgage, provided, however, that the City shall have no duty or obligation to determine independently the relative priorities of any Leasehold Mortgages, but shall be entitled to rely absolutely upon a preliminary title report current as of the time of any determination of the priorities of such Leasehold Mortgage and prepared by a generally -recognized title insurance company doing business in Miami, Florida. (c) During the continuance of any Leasehold Mortgage until such time as the lien of any Leasehold Mortgage has been extinguished, and if a true and verified copy' of such Leasehold Mortgage shall have been delivered to the City Manager together with a written notice of the name and address of the owner and holder thereof as provided in Section 6.1(a) above: (i) The City shall not agree to any mutual termination nor accept any surrender of this Lease (except upon thle expiration of the full term of this Lease) nor shall the City consent td any material amendment or modification of this Lease or waive any rights or consents it may be entitled to pursuant to the terms hereof, *ithout the prior written consent of Lender. Notwithstanding any provisian to the contrary in this Lease unilateral cancellation or termination or atEempted unilateral cancellation or termination of this Lease by Developer (except upon the expiration of the full term of this Lease) shall not be effective without the Lender's prior written consent. (ii) Notwithstanding any default by DeVelbper in the performance or observance of any covenant, condition or agreement of this Lease on the part of Developer to be performed or observed, the City Shall have no right to terminate this Lease even though an Event of Devveloper's Default under this Lease shall have occurred and be continuing, unless and until the City Manager shall have given Lender written notice Of such Event of Developer's Default and Lender shall have failed td remedy such Default or to acquire Developer's leasehold estate created hereby or to commence foreclosure or other appropriate proceedings in the nature thereof, all as set forth in, and within the time specified by, this ArtiC le VI. (iii) . Subject to the provisions of subparagraph (iv) immediately below, Lender shall have the right, but not the obligation, at any time prior to termination of this Lease and without payment oe any penalty, to pay all of the rents due hereunder, to provide any insurance, to pay any taxes and make any other payments, to make any repairs and improvements, to continue to construct and complete the Developer Improvements, and do any other act or thing required of Developer hereunder, and to do any act or thing which may be necessary and proper 6 be done in the performance and observance of the covenants, conditions and agreements hereof to prevent the termination of this Lease. All payments so made and all things so done and performed by Lender shall be as effective to prevent a termination of this Lease as the same would have been if made, done and performed by Developer instead of by Lender. (iv) Should any Event of DeVelopees Default under this Lease occur, Lender shall have sixty (60) days after receipt of notice from the City Manager setting forth the nature of such Event of Developer's Default, to remedy same or, if the default is such that possession of the Leased Property or Improvements may be reasonably necessary to remedy the default, Lender shall, within such sixty (60) day perithd acquire Developer's lease- hold estate created hereby or commence and diligently prosecute a fore- closure action or such other proceeding as may be necessary to enable Lender to obtain such possession, provided that (a) Lender shall have fully cured any default in the payment of any monetary obligations of Developer under this Lease within such sixty (60) day or longer period and shall continue to pay currently such monetary obligations as and when the same are due and (b) Lender shall within six (6) months of the date that it takes possession of the Leased Property and Improvements enter into an agreement an terms and conditions reasonably acceptable to the City with an Acceptable Operator for the continued operation of the Project (herein- after called "Acceptable Operator's Agreement"). All rights of the City and/or City Manager to terminate this Lease as the result of the occurrence of any such Event of Developer's Default shall be subject to and condi- tioned upon the City Manager having first given Lender written notice of such Event of Developer's 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 Developer's Default under this Lease which in the nature thereof cannot be remedied by Lender shall be deemed to be remedied if (a) within sixty (60) days after receiving written notice from the City Manager setting 'Forth the nature of such Event of Developer's Default, Lender shall have acquired Developer's leasehold estate created hereby or commenced foreclosure or other appropriate proceedings in the nature thereof, (b) Lender shall diligently and continuously prosecute any such proceedings to completion, (c) Lender shall have fully cured any default in the payment of any monetary obligations of Developer under this Lease which do not require possession of the Project within such sixty (60) days period and shall thereafter continue to faithfully perform all such monetary obligations which do not require possession of the Project, and (d) within six (6) months after Lender shall have gained possession of the Project, Lender shall have entered into an Acceptable Operator's Agreement. Upon the taking of possession of the Project by Lender, Lender shall perform all of the obligations of the Developer hereunder as and when the same are due except that Lender shall not be bound by the provisions of Section 5.8 hereof or any of such obligations which are not capable of (for example, bankruptcy and/or insolvency of Developer) being performed by Lender. Notwithstanding the foregoing, the City agrees that Lender shall not be obligated to complete construction of the Developer Improvements if Lender shall succeed to Developers estate under this Lease. Any assignee or successor in interest to a Lender that has become the owner of Developer's estate under the Lease and of the Improvements must assume all of Developer's obligations hereunder including, but not limited to, the construction obligation but excluding, however, those obligations which are not capable of being performed by Lender as above set forth. (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 acquiring Developer's leasehold estate and/or the Improvements or.obtaining possession of the Project or commencing or prosecuting foreclosure or other appropriate proceedings in the nature thereof, the times specified in subparagraphs (iv) and (v) above for acquiring Developer's leasehold estate and/or the Improvements or obtaining possession of the Project or commencing or prosecuting such foreclosure or other proceedings shall be extended for the period of such prohibition; provided that Lender shall have fully cured any default in the payment of any monetary obligations of Developer under this Lease and shall continue to pay currently such monetary obligations as and when the same fall due, and provided that Lender shall diligently attempt to remove any such prohibition. (vii) The City Manager shall mail to Lender a duplicate copy by certified mail of any and all notices which the City may from time to time give to or serve upon Developer pursuant to the provisions of this Lease; and no notice by the City Manager to Developer hereunder shall be deemed to have been given unless and until a copy thereof has been so mailed to Lender, (viii) Foreclosure of a Leasehold Mortgage or any sale thereunder, whether by judicial proceedings or by virtue of any power of sale - 79 - contained in the Leasehold Mortage, or any conveyance of the leasehold estate created hereby andlor the Improvements from Developer to Lender by virtue or in lieu of the foreclosure or other appropriate proceedings in the nature thereof, shall not require the consent of the City or constitute a breach of any provision of or a defablt under this Lease. Upon such foreclosure, sale ok conveyance, the City shall recognize Lender, or any other foreclosure sale purchaser dr grantee under such transfer in lieu of foreclosure, as tenant hereunder except that all obligations of Developer herein !contained shall be binding on the Lender or such purchaser or grantee (except those otherwise excluded in this Article VI) only from and after the date that it shall take title to the Developer's leasehold estate and Improvements unless otherwise in this Article VI provided; provided, that Lender or any such foreclosure sale purchaser or grantee must enter into an Acceptable Operator's Agreement, within six (6) months of the date of such foreclosure, sale ar conveyance, and further, provided, that in the event there are two or more Leasehold Mortgages or foreclosure sale purchasers (whether the same or different Leasehold Mortgages), the City shall have no duty or obligation whatsoever to determine the relative priorities of such Leasehold Mortgages or the rights of the different holders thereof and/dr foreclosure sale purchasers. In the event Lender subsequently assigns or transfers its interest under this Lease and in the Improvements after acquiring the same by foreclosure ar by an acceptance of a deed in lieu of foreclosure or subsequently assigns or transfers its interest under any new lease as contemplated by subparagraph (ix) below, and in connection with any such assignment or transfer Lender takes back a mortgage or deed of trust encumbering such interest to secure a portion of the purchase price given Leasehold Mortgagee as contemplated under this Section 6.1, Lender shall be entitled to receive the benefit of this Article VI and any other provisions of this Lease intended for the benefit of the holder of a Leasehold Mortgagee. Any person or entity to whom this Lease or any such new lease is assigned must either enter into or assume Lender's obligations under an Acceptable Operator's Agreement. (ix) Should this Lease terminate by reason of any default by Developer hereunder, the City Manager shall give notice thereof to all Lenders and the City Manager shall, upon written request by Lender to the City Manager received within sixty (60) days after such termination, executd and deliver a new lease of the Leased Property to Lender for the remainder of the term of this Lease with the same covenants, conditions and agreements (except for any which have been satisfied by or on behalf of Developer prior to termination and except those obligations from which Lenders are relieved in subparagraph (v) above) as are contained herein. No such termination of this Lease shall effect a termination of this subparagraph (ix) and the rights granted Lender's herein. The City's execution and delivery of such new lease shall be made without representation or warranty of any kind or nature whatsoever, either express or implied, including without limitation, any representation or warranty regarding title to the Project or any Improvements or the priority of such new lease (except as to actions taken by the City during the period commencing on the date of termination of this Lease and terminating on the date of such new lease). The City's delivery of any Improvements to Lender pursuant to such new lease shall be made without representation or warranty of any kind or nature whatsoever, either express or implied; and Lender shall take any Improvements "as -is" in their then current condition (except as to any actions taken Or improvements made by the City during such time as the Leased Property was not the subject of a Lease). Upon execution and delivery of such now lease, Lender shall be responsible for taking such action as may be necessary to remove Developer named herein from the Project. The City agrees to cooperate with Lender in connection with the foregoing. The City's obligation to enter into such new lease of the Leased Property with the Lender shall be conditioned upon Lender having remedied and cured all monetary defaults hereunder and having remedied and cured or having commenced and diligently prosecuting the cure of all non -monetary defaults of Developer susceptible to cure by any party other than by Developer. If the City receives written requests in, accordance with the provisions of this Section 6.1(ix) from more than one Lender, the City shall only be required to deliver the .new lease to the Lender who is, among those Lenders requesting a new lease, the holder of the most junior Leasehold Mortgage, provided that such Lender shall, not later than the execution of such new lease, either (x) pay in full the sums secured by any or all Leasehold Mortgages which are prior in lien to the Leasehold Mortgage held by such Lender, or (xx) agree to reinstate the liens of any or all Leasehold Mortgages which are prior in lien to the Leasehold Mortgage held by such Lender with the same relative priority as existed prior to the termination of this Lease. If any Lender having the right to a new lease pursuant to this Section 6.1(ix) shall elect to enter into a new lase but shall fail to do so or shall fail to take the action required above, the City shall so notify all other Lenders (if any) and shall afford such other Lenders a period of sixty (60) 'days from such notice within which to elect to obtain a new lease in accordance with the provisions of this Section. Except for any liens reinstated pursuant to this Section, any new lease entered into pursuant to this Section shall be prior to any mortgage or other lien, charge or encumbrance on the fee of the Leased Property or the Improvements and shall have the same relative priority in time and in right as this Lease and shall have the benefit of all of the right, title; powers and privileges of Developer hereunder in and to the Project. At Developer's request, the City Will enter into an agreemeht with any Lender granting to the Lender the rights set forth in this Article. If such new lease is entered into pursuant hereto, the Lender shall be entitled to offset from the previous Rentals due the City under this Lease, the det operating profit, if any, made by the City during the period that the City shall have operated or had possession of the Project. No Subtenant will obtain any greater rights or priority which it might otherwise have by virtue of the non -disturbance provisions of Section 12.10 of this Lease if this Lease is terminated and a new lease is entered into pursuant to this Article VI. (x) City and Developer shall cooperate in .including in this Lease by suitable amendment from time to time any provision which may be requested by any proposed Lender, or may otherwise be reasonably necessary, to implement the provisions of this Article VI; provided, -83- hthweverthat any such amendment shall. neat in any way affect the term hereby demised nor affect adversely in any material respect any rights of the City under this Lease. (xi) All rights and benefits afforded td 'a Lender hereunder shall also be afforded to a party JproViding financing to Developer pursuant to a Financing Sublease. (xii) At any time that a Lender is in possession of the Leased Prbperty pursuant to the terms of the Lease and at all times thereafter during the term of this Lease or any Renewal Term, the Rental obligation to the City shall be limited to an afnount equal to thirty-five percent (3.5%) of. Net Incofle Available for Distribution, it being agreed tHat in such event the calculation of Net Income Available for Distribution shall not include any deduction for Minimum Base Rental unless same has actually been paid to the City. Section 6.2. No Waiver of Developer's Obligations or City's Rights. Nothing contained in this Article VI or in any Leasehold Mortgage shall be deemed or construed to relieve Developer froM the full and faithful observance and performance of its covenants, conditions and agreements contained herein, or from any liability for the non -observance or non-performance thereof, or to require or provide for the subordination to the lien of such Leasehold Mortgage of any estate, right, title or interest of the City in or to the Project or this Lease. ARTICLE VII REMEDIES Section 7.1. Events of Default - Developer. The following events are hereby defined as "Events of Developer's Default": (a) Failure - Payment of Money. Failure of Developer to pay any kental, Additional Rental or Public Chalrges or any other payments of money as hei:ein provided or required, when due and the continuance of such failure for a period of ten (10) days after notice thereof in writing. In the event that any payment or installment of Rental is not paid to /the City on the date the same becomes due and payable, Developer covenants and agrees to pay to the City interest on the amount thereof from the date such payment or installment became due and payable to the date of payment thereof, at the Default Rate. All other payments of money required to be paid to the City by the Developer under this Lease, including interest, penalties and contributions, shall be treated as Additional Rent. (b) Failure - Performance of Other Covenants, Etc. Failure of Developer to perform any of the other covenants, conditions and agreements which are to be performed by Developer in this Lease, and the continuance of such failure for a period of sixty (60) days after notice thereof in writing from the City to Developer (which notice shall specify the respects in which the City contends that Developer has failed to perform any such covenants, conditions and agreements), unless such default was not caused or created by the Developer and cannot be cured within sixty (60) days and the Developer within said sixty (60) day period shall have commenced and thereafter shall have• continued diligently to prosecute all actions necessary to cure such default, said failure shall constitute an Event of the Developer's Default. (c) Bankruptcy, etc. 1. if an order or relief shall be entered upon any petition filed by or against Developer, as debtor, seeking relief (or instituting a case) under Chapters 7, 9, 11 or 13 of the Bankruptcy Code of 1978, 11 U.S.C. (Sec. 10 et seq.) or any successor thereto; or - 85- 2. if Developer admits its inability to pay its debts, or if a receiver, trustee br other court appointee is appointed for all or a substantial part of Developer's property; or 3. if the leasehold interest of Developer i5 levied upon or attached by process of law; or 4. if Developer makes an assignment for the benefit of creditors or take the benefit of any insolvency act, or if any proceedings are .filed by or against Developer to declare Developer insolvent or unable to meet its debts; or 5. if a receiver or similar type of. appointment or court appointee or nominee of any name or character is tnade for DeVeloper or its property; or 6. if Developer shall abandon the Leased Property during the term of this Lease of: any renewals or extensions thereof; or 7. if DeVeloper shall assign this Lease or sublet any portion of the Leased Property, except as permitted herein. Section. 7.2. Remedies. for Developer's Default. If any of the Events of Developer's Default shall occur, the City may, at its option, .institute such proceedings as in its opinion are necessary to cure such defaults or to compensate the City for damages resulting from such defaults, including but not limited to the right to give to the Developer a notice of termination of this Lease. If such notice is given, except as otherwise provided in Article VI hereof, the term of this Lease shall terminate, upon the date specified in such notice from the City to Developer, as fully and completely as if that date were the date herein originally fixed for the expiration of the term of this Lease, and on the date so specified, Developer shall then quit and surrender the Project to the City in accordance with - 86- Section 11.5. Upon the termination of this Lease, as provided in this Section 7.2, all rights and interest of the Developer in and to the Leased Property and every part thereof shall cease dnd terminate and the City may, in addition to any other rights and remedies it may have, retain all sums paid to it by the Developer under this Lease. Section 7.3. Events of Default - City. (a) Events of Default. The failure of the City to perform any of the covenants, conditions and agreements of this Lease which are to be performed by the City and the continuance of such failure for a period of sixty (60) days after notice thereof in writing from Developer to the City (which notice shall specify the respects in which Developer contends that the City has failed to perform any of such covenants, conditions and agreements) .and unless such default be one which cannot be cured within sixty (60) days and tht City within such sixty (66) day period shall have commenced and thereafter shall continue diligently to prosecute all actions necessary to cure such defaults, such failure shall constitute an "Event of the City's Default". (b) Remedies for City's Default. If an Event of the City's Default shall occur, Developer, to the fullest extent permitted by law, shall have the right to pursue any or all of the following remedies: (i) the right and option to terminate this Lease and all of its obligations hereunder by giving notice of such election to the City, whereupon this Lease shall terminate as of the date of such notice (subject, however, to the rights of any Lender pursuant to Article VI hereof); (ii) the right to a writ of mandamus, injunction or other similar relief, available to it under Florida law against the City -87- (including any or all of the members of its governing body, and its officers, agent's or representative) provided, however, that in no event shall any membe± of such goVerning body or any of its officers, agents or representatives be personally liable for any of the City's obligations to Developer hereunder; (iii) the right to maintain any and all actions at law or suits in equity or Other proper Proceedings td obtain damages resulting from such default. Section 7.4. Unavoidable Delay. Far the purpose of any of the provisions of this Agreement, neither the City (including the City Manager) nor Developer, as the case may be, nor any Successor in interest, shall be considered in breach of or in default in any of its obligations, including but not limited to the preparation of the Leased Property for development, or the beginning and completion of construction of the Developer Improvements or City Improvements, or progress in respect thereto in the event of unavoidable delay in the performance of such obligations dub to strikes, lockouts, acts of God, inability to obtain labor or materials due to governmental restrictions, enemy action, civil commotion; fire, unavoidable casualty or other similar causes beyond the reasonable control of a party (not including such party's insolvency of financial condition), it being the purpose and intent of this paragraph that in the event of the occurrence of any such unavoidable delays the time or times for the Performance of the covenants, provisions and agreements of this Lease, including but not limited to the obligations of the City and the City Manager with respect to the preparation of the Leased Property for development and completion of the City Improvements or of Developer with respect to construction of Developer Improvements, shall be extended for the period Of unavoidable delay; provided, however, that the party seeking they benefit of the provisions of this Section shall, *ithin thirty (30) days after such party shall have become aware of such unavoidable delay, give notide to the other party thereof in writing of the cause or causes thereof and the time delayed. The parties hereto agree if any event 'shown on Exhibit G shall not occur at the time required for same as a result an event of Unavoidable Delay, the Rent Commencement Date shall be postponed to a date extended by the period of, such delay or the Opening Date, whichever is earlier. Notwithstanding the foregoing, Developer agrees to use reasohable and diligent efforts to open the 8ayside Specialty Center for business with the general public by October 31, 1986. Section 7.5. Obligations, Rights and Remedies Cumulative. The rights and remedies of the parties to this Agreement, whether provided by law or by this Agreement, shall be cumulative, and the exercise by either party of any one or more of such.remedies shall not preclude the exercise by it, at the same or different times, of any other such remedies for the same default cr breach or of any of its remedies for any other default'or breach by the other party. No waiver made by either party with respect to performance, or manner or time thereof, of any obligation of the other party or any condition to its own obligation under this Agreement shall be considered a waiver of any rights of the party making the waiver with respect to the particular obligations of the other party or condition to its own obligation beyond those expressly waived and to the extent thereof, or a waiver in any respect in regard to any other rights of the party making the waiver or in regard to any obligation of the other party. -89- ARTICLE VIII PROTECTION AGAINST MECHANICS' LIENS AND OT};-fER CLAIMS, INDEMNIFICATION Section 8.1. Mechanics' Liens and Payments of, Obligations. (a) Developer to Discharge Mechanics' Liens. Developer shall hot be given possession of the Leased Property or existing Improvements or authorized to begin cdnstructicn thereon p#:ior to the recording of this Lease and prior to the Possession Date so as not to subject the fee interest of the City to mechanics' liens, if any such mechanics' liens shall at any time be filed against the Leased Property, Developer shall promptly take and diligently prosecute Opropriate action to have the same discharged or to contest irr good faith the amount or validity thereof and if unsuccessful in such contest, to have the same discharged. Upon Developer's failure sd to do, the City, in addition to any other right or remedy that it may have, may teke such dction as may be reasonably necessary to protect its interest, and Developer shall pay any amount paid by the City in connection with such action, and all reasonable legal and other costs and expenses incurred by the City in connection therewith (including reasonable counsel fees, court costs and other necessary disbursements). Any such amounts paid by the City and the amount of any such expenses or costs incurred by the City, if not paid by Developer to the,City within thirty (30) days after the date Developer receives written notice from the City of the amount thereof and demand for payment of the same, shall, together with interest thereon at the Default Rate from the date of the receipt by Developer of the aforesaid written notice and demand to the date of payment thereof by Developer, be treated as Additional Rental, and shall be payable by Developer to the City not later than the next monthly installment of the Annual Basic Rental becoming due. -90- (b) Payment of M4terialmen 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 tb subcontractors in connection with the development, construction, equipment, repair or reconstruction of any of the Improvements required by this Agreement to be constructed by Developer on the Leased ,Property. Nothing in this subparagraph (b) shall limit the right of Developer to contest, in good faith, by legal proceedings or otherwise, whether any amount claimed or alleged to be due and owing to any such person is legally due and owing and to withhold payment of such amounts pending resolution of such dispute. Section 8.2. Indemnity. Notwithstanding any policy or policies of insurance required of Developer, Developer shall indemnify and save harmless the City from and against any and all actions, claims or demands, suits at law, in equity or before administrative tribunals, due to the negligence of Developer, its agents, servants, employees or contractors arising out of the use or occupancy of the Leased Property by such persons. Developer shall defend any and all such actions, claims, demands or suits on behalf of the City at Developer's sole cost and expense. The City shall indemnify and save harm- less Developer from and against any and all claims or demands, suits at law, in equity or before administrative tribunals, due to the negligence of the City, its agents, servants, employees, or contractors arising out of the use or occupancy of the Leased Property by such persons. The City shall defend any and all such action, claims, demands or suits on behalf of Developer at the City's sole cost and expense. ARTICLE IX INSURANCE Section 9.1. Insuance,Coverage. Beginning On the Possession Date and during the term of this Lease, Developer at its sole cost and expense shall maintain or cause to be maintained: (a) Propetty Insurance. Insurance on the Improvements against All Risks of physical loss or .'damage, including the expense of the removal of debris of such property as a result of damage by an insured peril. Coverage shall be written on as broad an All Risk form as is commercially available. The insurance shall be written on a replacement cost basis. If the policy or policies of insurance contain a co-insurance requirement, the policy or policies :shall contain an agreed amount endorsement. r'.::;ing the construction period, property insurance may be provided on a Completed Value Builder's Risk form. The City and Developer shall be listed as named insureds on such Builder's Risk Policy. The term "Improvements", as used in this paragraph, shall be deemed to include all personal property furnished or installed on the premises and owned by the Developer, and the insurance herein provided shall cover the same. The adequacy of the Insurance coverage may be reviewed periodically by the City Manager at his discretion. Any review by the City Manager shall not constitute an approval or acceptance of the amount of insurance coverage. In the event that insurance proceeds are inadequate to rebuild and restore the damaged Improvements to substantially their previous condition before an insurable loss occurred, and the cause of the deficiency in insurance proceeds is the failure of the Developer to adequately insure the Improvements as 92 required by this Agreement, Developer must nevertheless rebuild and restore such improvements pursuant to the terms hereof and must pay the entire cost of• same notwithstanding the fact that such insurance proceeds are inadequate. (b) Rental Value Insurance. Rental value insurance, so that Developer will be insured against loss of rental income from the improvements vccaiioned by an?' of the insured against perils included in the Property Insurance policy during the period required to rebuild, repair or replace the property damaged, which policy or policies of insurance shall expressly provide by endorsement thereon that the interest of the City as lessor under this Lease shall be covered to the extend earned, in an amount equal to the total of Annual Basic Rental payable during said period of business interruption. Rental Value Insurance shall commence at such time as P 0-rIls are due and payable to the City, whether or not the Bayside Specialty Center is then open for business with the general public. The adequacy of the Rental Value Insurance may be reviewed by the City' Manager every five years. Any review by the City Manager shall not constitute an approval or acceptance of the amount of insurance coverage. (c) Automobile Liability Insurance. Automobile liability insurance and equivalent policy forms covering all owned, non -owned, and hired vehicles used in connection with any work arising out of this Agreement. Such insurance shall afford protection t6 at least a combined single limit for bodily injury and Property damage liability of $1,000,000 pe: occurrence. The adequacy of the automobile liability insurance coverage may be reviewed every five years by the City Manager. Any review by the City Manager shall not constitute an approval or acceptance of the amount of insurance coverage. (d) Liability Insurance. Comprehensive general liability, including chntrattual liability, or an equivalent policy form providing liability insurahce against claims for personal injury or death or property damage, occurting on or about the Leased Property, the Improvements, or any elevator, escalator, or hoist thereon. Such insurance sHall afford protection to at least 4 combined single limit for bodily injury and property damage liability of $I,0.,000,000 per oCcurrehce. The adequacy of the liability insurance coverage shall be reviewed every five years by the City Manager. Any review by three City Manager shall hot constitute an approval or acceptance of the amount of insurance coverage. Such liability and property damage insurance shall also be placed in effect during the period of permitted access provided in Section 3.8 herein. It is the City's intent that any liability insurance provided pursuant to this Section shall be deemed primary insurance coverage in the event of any loss arising from the premises and operations covered by this Agreement. (e) Worker's Compensation. Worker's Compensation and Employer's Liability Insurance in compliance with Florida Statute 440. For work that is subcontracted, the Developer shall require the subcontractor to provide Worker's Compensation insurance for all of the subcontractor's employees. (f) Copies. Developer shall furnish Certificates of Insurance with the City named as additional insured for the coverages specified hereunder which shall clearly indicate that Developer has obtained insurance in the type, amount and classification as herein required. Copies of all policies of insurance and renewals thereof shall be furnished upon request of the City Manager by the Developer prior to the effective date thereof. Copies of new - 94 - or renewal policies replacing any policies expiring during the tern of this Lease shall be delivered to City Manager at least thirty (30) days prior to the date of expiration of any policy, together with proof satisfactory to the City that all premiums have been paid. Section 9.2. Responsible Companies - Blankest Insurance Permitted. ,All insurance provided for in this Article IX shall be effected under valid and enforceable policies issued by insurers of recdgnized responsibility, which are licensed to do business in the State of Florida. All such companies must be rated at least "A" as to management, and at least "Class X" as to financial strength in the latest edition of Best's Insurance Guide, published by Alfred M. Best Co., Inc., 75 Fulton Street, New York, NY. The insurance required by this Article may be part of another policy or policies of the 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 9.3. Named Insureds Notice to City of Cancellation. All policies of insurance described herein shall name Developer and the City as insureds as their respective interests may appear. The policies shall also name as insured, if required by either party or required pursuant to the terms of any Leasehold Mortgage or Financing Sublease, any Leasehold Mortgagee as the interest of 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 efi'ective until at least thirty (30) days after receipt of written notice thereof has been received by the City. Each policy shall contain an endorsement to the effect that no act or omission of the Developer shall affect the obligation of the insurer to pay the full amount of any loss sustained. Section 9.4. City May Procure Insurance if Developer Fails to,Do Aio. In the event Developer at any time refuses, neglects or fails to secure and maintain in full force and effect any or all of the insurance required Pursuant to this Agreement, the City, at its option, may procure or renew such insurance, and all amounts of money paid therefore by the City shall be treated as Additional Rental payable by Developer to the City together with interest thereon at the Default Rate from the date the same were paid by the City to the date of payment thereof by Developer. The City shall notify Developer in writing of the date, purposes and amounts of any such payments made by it, which shall be payable by Developer to the City within ten (10) days of such notification. Section 9.5. Insurance Does Not Waive Developer's Obligations. No acceptance or approval of any insurance agreement or agreements by the City or the City Manager shall relieve or release or be construed to relieve or release Developer from any liability, duty or obligation assumed by, or imposed upon it by the provisions of this Agreement. Section 9.6. Loss or Damage Not To Terminate Rental or this Agreement. Any loss or damage by fire or other casualty, of or to any of the Improvements on the Leased Property at any time, shall not operate to terminate this Agreement or to relieve or discharge Developer from the payment of Rental, or from the payment of any money to be treated as Additional Rent in respect thereto, pursuant to this Agreement, as the same may become due and payable, as provided in this Agreement. Section 9.7. Proof of Loss. Whenever any Improvements, or any part thereof, constructed on the Leased Property (including any personal property furnished or installed in the premises) shall, have been damaged, or destroyed, Developer shall promptly make proof of loss in accordance with the terms of the insurance policies and shall proceed promptly to collect or cause to be collected, all valid claims which may have arisen against insurers or others based upon any such damage or destruction. Developer shall promptly give City written notice of Such damage or destruction. Section 9.8. Property Insurance Proceeds. (a) Authorized Payment. Except as otherwise provided in subsection (c) of this Section 9.8, all sum$ 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 t500,000.00 or less which amount shall be adjusted periodically every five (5) years commencing with the Rent Commencement Date by the percentage change in the Consumer Price Index (all urban consumers) as published by the Bureau of Labor Statistics of the Department of Labor (the "CPI") for such 5 year period, or in the event the CPI has changed or is no longer published, such other appropriate measure of changes in the relative purchasing power of the dollar agreed upon by the parties, except that if Developer is then in default under this Lease, such proceeds shall be paid over to City who shall apply the proceeds first to the rebuilding, replacing and repairing of the Leased Property and then to the curing of such default. Any remaining proceeds shall be paid over to Developer. (ii) To the Insurance Trustee, if the total recovery is in excess of $500,000.00, which amount shall bd adjusted periodically every five (5) years commencing with the Rent Commencement Date by the percentage change in the CPI for such 5 year period as above set forth, to be held by such Insurance Trustee pending establishment of reconstruction, repair Or replacement costs and shall be disbursed to Developer pursuant to the provisions of subparagraph (b) of this Section 9.8. If, at the time such proceeds become payable, there is a Leasehold Mortgage on the Leased Property, the Leasehold Mortgagee shall serve as the Insurance Trustee, but if there is no Leasehold Mortgage at that time, or if the Leasehold Mortgagee refuses to serve as Insurance Trustee, the Insurance trustee shall be such commercial bank or trust company as shall be designated by Developer and approved by the City Manager, which approval Shall not be unreasonably withheld or delayed. (b) Disposition of Insurance Proceeds, for Reconstruction. All amounts received upon such policies shall be used, to the extent required, for the reconstruction, repair or replacement of the Improvements and the personal property of Developer contained therein, so that the Improvements or such personal property shall be restored to a condition comparable to the condition prior to the loss or damage (hereinafter referred to as "Reconstruction Work"). From the Insurance proceeds received by the Insurance Trustee, there shall be disbursed to Developer such amounts as are required for the Reconstruction Work. Developer shall submit invoices or proof of payment to the Insurance Trustee for payment or reimbursement in accordance with an agreed schedule of values approved in advance by the City Manager. Any amount remaining in the hands of the Insurance Trustee after the completion of the Reconstruction Work shall be paid to Developer. -98- (c) -Lenders and Lender/Landlords May Have 9ene6t, of ,Insurance Fund for, ieconstruction. In the event Developer, pursuarlt to any Leasehold Mortgage or Financing Sublease, shall at any time authorize the Lenders or Lender Landlords on his behalf or in his stead to enter uphn the Leased Property and undertake or prosecute the reconstruction or repair of any 'building on the Leased Property damaged or destroyed by fire, or other insured -against hazard or peril and to have and receive for Developer or Leasehold Mortgagees' use for such purpose such insurance proceeds, then in that case said insurance proceeds shall be equally available to .such Leasehold Mortgadee as to Developer as provided in subsection (b) of this Section 9.8, and it shall in like manner and to like extent at the request of any such Leasehold Mortgagee, be applied to the reconstruction or repair of any such building so damaged or destroyed. Section 9.9. Covenant for Commencement aid, Completion of Reconstruction. Subject to the provisions of Section 9.1(b) and Section 9.10, Developer covenants and agrees to commence the Reconstruction Work as soon as practicable but in any event within six (6) montht after the insurance proceeds in respect of the destroyed or damaged Improvements or personalty have been received, and to fully complete such Reconstruction Work as expeditiously as possible consistent with the nature of the damage, but in any event within eighteen (18) months from the start thereof; provided, that if it is not practicable to commence such Reconstruction Work within such six (6) month period, or to complete such Reconstruction Work within such eighteen (18) month period, then such Reconstruction Work may be commenced and completed within a longer period, provided that such period shall be approved in writing by tie City Manager after written request from Developer. As used in the precedinlg sentence, the term "available net insurance proceeds" means the sum actually paid by the insurer or insurers in respect of the claim in question, less all costs and expenses incurred by Developer or the Insurance Trustee in the collection, holding and disbursement of same, including /(without limitation) reasonable attorneys' fees. The City agrees that if the seawall, riprap and/or marina shown on Exhibit A-1 or Exhibit A-2 shall be damaged or destroyed, the City shall promptly repair and restore same to at least the condition same was in immediately prior to such damage or destruction or to a condition mutually acceptable to the parties hereto. Section 9.10. Developer's Rights In the Event of Uninsured Major Casualty. In th+e event any part of the Improvements or the Leased Property is damaged or destroyed by reason of any casualty which is not required to be insured against pursuant to Section 9.1 and is not in fact insured against, then at Developer's option, in lieu of rebuilding, replacing or repairing the portion of the Improvements or the Leased Property so damaged or destroyed, Developer may give notice 'to the City, within sixty (60) days after the occurrence of such damage or destruction, of Developer's election to terminate this Lease as to the portion of the Improvements or the Leased Property so damaged or destroyed and this Lease shall, subject to the rights of Lenders hereunder, thereupon terminate as to such portion of the Project and Developer shall have no further obligation hereunder with respect thereto, except that, if the City shall so request within thirty (30) days after such notice is given, Developer shall, at its expense, promptly demolish any buildings or other improvements situated on the portion of the Leased Property as to which - 100 - this Lease shall have been terminated and shall blear and grade such portion of the Leased Property. The City and DevelOper shall, at the request of either, execute such instrl',ments Or documents a5 may be reasonably necessary or desirable in order to amend thins Lease to delete such portion of the Leased Property from the description Of the propertyy demised hereby. If the -'Improvvements or the Leased Property which were' Uninsured, or for which there were hb insurance proceeds, shall be substantially damaged Or destroyed in any single casualty so that the Improvements or the Leased Property shall be unsuitable for restoration for Developer's continued use and occupancy in Developer's business, then at Developer's optidn, in lieu of rebuilding, replacing or repairing the Improvements or the Lensed Property as provided in this Lease, Developer may give notice to the City, within sixty (60) days after the occurrence of such damage or destruction, of Developer's intention to terMinate this Lease on any business day. specified in such notice which occurs not less than sixty (60) nor more than one hundred twenty (120) days after the date of such damage or destruction, provided that such notice shall be acdompanied by a certificate of the Developer, signed by the appropriate officer or general partner, staffing that in the reasonable judgment of Developer, the Improvements and the Leased Property are economically unsuitable for Developer's continued use and occupancy by reason of such damage or destruction. This Lease shall, subject to the rights of Lenders under this Lease, thereupon terminate on such termination date, except with respect to obligations and liabilities of Developer under this Lease, actual or contingent, which have arisen on or prior to such date. Upon giving any such notice of termination of this Lease Developer shall, upon the City's request at Developer's expense, promptly demolish any building or other remaining improvement and shall clear and grade the Leased Property. Section .11. Casualty to Parking Garage. In the event that all or any portion of the Parking Garage and the Garage Parcel is damaged or destroyed by reason of fire or other casualty and the Parking Garage is not restored, pursuant to the teams of the Parking Garage Ground Lease such that, in the good faith opinion of Developer, it shail be economically unfeasible to use and en- joy the Improvements on the Leased Property, then the Developer shall have the right to terminate this Lease upon giving the City written notice of the exer- cise of such optidn and this Lease shall, subject to the rights of Lenders under this Lease, terminate and become null and void as of the date of termination specified in such option, and Rental and any money treated as Additional Rental and Public Charges shall be prorated and paid by Developer as of the date of such termination. In addition to other matters which Developer shall consider in determining the foregoing economic unfeasibility, the, Developer shall consider whether comparable, suitable parking would be available in a close proximity to the Leased Property. If Developer shall exercise its right to terminate this Lease as above set forth, Developer shall, provided that the City shall actually demolish the Developer Improvements, pay tb the City an amount equal to fifty percent (50%) of the actual cost that the City shall incur in connection with the demolition of the Developer Improvements. ARTICLE X CONDEMNATION Section 10.1. Entire Project Taken by Condemnation. In the event that the whole of the Project (or such portion thereof as shall, in the good faith opinion of Developer, render it economically unfeasible to effect restoration thereof) shall be taken for any public use or purpose by the exercise of the power of eminent domain, or shall be cbnveyed by the City and Developer acting jointly to avoid proceedings of such taking, the Rental and money to be treated as Additional Rental pursuant to this Agreement, and the Public Charges shall be prorated and paid by the Developer to the date of such taking or conveyance, and this Lease shall terminate and become null and void as of the date of such taking or conveyance. The award or awards odamages allowed to the City or Developer shall be paid as follows: First: There shall be paid all expenses, if any, in- cluding reasonable attorneys' fees, incurred by the City and Developer in such condemnation suit or conveyance (except that nothing contained in this Article shall require payment to the City of costs and expenses it may incur as the condemning authority); Second: City and Developer shall be paid portions of the balance of said award or awards which are allocable to and represented by the value of their respective interest in the Project as found by the court or jury in its condemnation award, or if no such separate awards are obtained, such balance shall be paid to Developer and the City in the same proportion as the then Fair Market Value of each party's respective interest or estate in the Leased Property and the Improvements bears to the total Fair Market Value of the interests and estates of both parties in the Leased Property and Improvements within thirty (30) days of the time of the taking, such value shall be determined by the Arbitration Panel, selected in the manner and acting with the authority provided in this Article. - 103- Section 10.2. Partial Taking of Project by Condemnation. (a) In the event that less than all of the Project shall be taken for any public use or purpose by the exercise of the power of eminent domain, or shall be conveyed by the City and Developer acting jointly to avoid proceedings of such taking, and Developer shall be of the good faith opinion 'that it is economically feasible to effect restoration thereof, then this Lease and all the covenants, conditions and provisions hereunder shall be and remain in full force and effect as to all of the Leased Property not so taken or conveyed (except as provided in subsection (c) of this Section 10.2 and in Section 10.3). Developer shall to the extent condemnation proceeds are made available to it pursuant to the terms hereof, remodel, repair and restore the Improvements so that they will be comparable to the Improvements prior to the condemnation, taking into consideration the fact of the condemnation; provided, however, that in so doing, Developer shall not be required to expend more than the amount of any such award actually received by Developer, less all costs and expenses (including reasonable attorneys' fees) incurred in the collection of same. (b) The award or awards of damages allowed to City and Developer shall be paid to and received by the parties as follows: First: There shall be paid all expenses, if any, including any reasonable attorneys' fees, incurred by City and Developer in such condemnation suit or conveyance; Second: There shall be paid to the City the value of the portion of the land so taken, which land shall be valued as if unimproved and unencumbered; Third: There shall be paid to the Developer the amount required to complete the remodeling and repairs to the Improvements pursuant to (a) above; Fourth: City and Developer shall be paid portions of the balance of said award or awards, if any, which are allocable to and represented by the value of their respective ihterest in the Leased Property and Improvements as found by the court or jury in its condemnation award, or if no such separate awards are obtained, such balance shall be paid to Developer and the City in the same proportion as the then Fair Market Value of each party's respective interest Or estate in the Leased Property and the Improvements bears to the total Fair Market Value of the interests and estates of both parties in the Leased Property and Improvements. In the event that the parties cannot agree upon the Fair Market Value of their respective interests and estates in the Leased Property and Irprovements within thirty (30) days of the time of the taking, such value shall be determined by the Arbitration Panel, selected in the manner and acting with the authority provided in Section 10.5 of this Article. Section 10.3. Adjustment of Rent Upon Partial Taking. In the event a part of the Leased Property and the Improvements thereon, if any, shall be taken for any public use or purpose by the exercise of the power of eminent domain, or shall be conveyed by City and Developer acting jointly to avoid proceedings of such taking, then Rental, and money to be treated as Additional Rental pursuant to this Agreement and the Public Charges in respect of such - 105 • 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 teduced by such in amount as may be agreed upon in writing by the parties hereto, provided, hOwaver, if City and Developer shall be unable to agree upon the amount of such reduction within thirty (30) days !of the date of such taking, then, and in such event, the amount of such reduction shall be determined by the Arbitration Panel selected in the manner and acting with the authority provided in Section 10.5. Section 10.4. Taking for Temporary Use or of Leasehold Estate. If, by the exercise of the power of eminent doriiain, or under threat thereof, the whole or any part of the Leased Property dr the Improvements shall be taken for temporary use or the whole or any part bf the leasehold estate created by this Lease shall be taken; all awards or other payments shall be paid to Developer alone, except that, (i) if any portion of any such award or payment on account of a taking for temporary use is made by reason of any damage to or destruction of any portion of the Improvements, such portion shall be applied to pay the cost of restoration, (ii) if any portion of an award or payment on account of a taking for temporary use relates to a period beyond the date of expiration of the term of this Lease, such portion shall be paid to the City, and (iii) All payments of Annual Basic Rental by the Developer shall continue as if no temporary taking had taken place. Rentals payable shall be the Minimum Base Rental, or Rentals payable as a percentage of Net Income Available for Distribution, whichever is higher. For the purposes of this Section 10.4, Rentals payable as a percentage of Net Income Available for Distribution shall be the Average Annual Basic Rentals payable in the immediate 3 year period prior to the notice of taking by condemnation br the period of time since the Opening Date, whichever period is lesser. In the event the taking for temporary use continues for over 1 year, the Annual Basic Rental due for each consecutive year Shall be increased by the percentage increase in the Consumer Price Index, or, if not available, such equivalent index. Section 1h.5. Arbitration. A panel of arbitrators ("Arbitration Panel") shall be established when required by this Agreement. (i) The appointments to thy: panel shall be made in the following manner: (a) The City shall name ohe member; (b) developer shall name bne member; and (c) The aforesaid members shall promptly name a third member. (ii) Every member of the Arbitration Panel must be a member of the American Institute of Real Estate Appraisers. (iii) If either party shall fail to designate a member within fifteen (15) days after a written request so to do by the other party, then such other party may request the President.of the Florida Chapter of the American Arbitration Association to designate a member, who when so designated shall act in the same manner as if he had been the member designated by the party so failing to designate an arbitrator. If the two members are unable to agree upon a third member within ten (10) days from the last date of designation, such third member shall be designated by the President of the Florida Chapter of the American Arbitration Association, upon the request of either of the two members. 107 - (iv;► All actions, hearings and decisions of the Arbitration Panel shall be conducted, based upon and in accordance ►kith the Commercial Arbitrations Rules of the American Arbitration Association. In all controversies, disputes or claims with respect to the evaluation of real estate referred to Arbitration under the provisions of this Agreement, the Arbitration shall be conducted in accordance with the Real Estate Valuation Rules of the American Arbitration Association. In determining any matter before them, the Arbitration Panel shall apply the terms Of this Agreement, and shall nbt have the power to vary, modify' or reform any terms or provi- sions of the Agreement in any respect. The Arbitration Panel shall afford a"hearing to the City and to the Developer and the right to submit evidence with the privilege of cross-examination on the question at issue. A11 arbitration hearings shall be held at a place designated by the Arbitration Panel in Dade County, Florida. (v) A hearing .shall be commenced within sixty (60) days following the selection of the last of the three arbitrators. A court reporter shall make a transcript of the hearing. The parties and the Arbitration Panel shall use their best efforts to conclude the hearing within ten days. The parties shall be entitled to such pre-trial discovery as they may agree, or as determined by the Arbitration Panel. The Arbitration Panel shall have the right to question witnesses at the hearing, but not to call witnesses. The Arbitration Panel may grant continuances for good cause or with the agreement of both parties. The Arbitration Panel may render a decision at the close of the hearing, or may request briefs on any or all issues. Any and all such briefs, including reply briefs, shall be filed with the terms and on the schedule -108- set by the Arbitration Pane, but in any event no later than forty-five (45) days following the commencement of the hearing. The Arbitration Panel shall render a determination within sixty (60) days from the conclusion of the hearing. If no determination is rendered within such time, unless the parties agree otherwise, a new Arbitration Panel shall be selected as described above, but the new Arbitration Panel shall render a determination solely upon review of the record of the hearing without a further hearing. (vi) The Arbitration Panel selected hereunder shall agree to observe the Code of Ethics for Arbitrators in Commercial Disputes promulgated by the American Arbitration Association and the American Bar Association, or any successor code. The decision of a majority with respect to any matter referred to it under this Lease shall be final, binding and conclusive on the City and Developer.and enforceable in any court of competent jurisdiction. Together with the determination, the Arbitration Panel shall provide a written explanation of the basis for the determination. Each party shall pay the fees and 'expenses of the member of the Arbitration Panel designated by such party, such party's counsel and witness fees, and one-half (1/2) of all expenses of the third member of the Arbitration Panel. Section 10.6. Parking Garage Taken by Condemnation. In the event that all or any portion of the Parking Garage or the Garage Parcel is taken by the power of eminent domain or shall be conveyed to avoid such proceedings and all of the Parking Garage shall no longer be available for use to the gen- eral public, such that, in the good faith opinion of Developer, it shall be economically unfeasible to use and enjoy the Improvements in the Leased Prop- - 109 erty, then the Developer shall have the right to terminate this Lease upon giving the City written notice of the exercise of such option and this Lease shall terminate and become null and void as of the date of termination specified in such option, and Rental and any money treated as Additional Rental and Public Charges shall be prorated and paid by the Developer as of /the date of such termination. In addition to other matters which Developer shall consider in determining the foregbing economic unfeasibility, Developer shall consider whether comparable, suitable parking would be available in a close proximity to the Leased Property. If Developer shall, provided that the City shall actually demolish the Developer Improvements, exercise its right to terminate the Lease as above set forth, Developer shall pay to the City an amount equal to fifty Percent (50%) of the actual cost that the City shall incur in connection with the demolition of Developer Improvements. ARTICLE XI FRIGHTS OF OCCUPANCY AND ACCESS; MAINTENANCE, OWNERSHIP CF IMPROVEMENTS Section 11.1. Quiet Enjoyment. The City represents and warrants that Developer, upon paying the Rental pursuant to this Agreement and observing and keeping tfie covenants and agreements of this Agreement on its part to be kept and performed, shall lawfully and quietly hold, occupy and enjoy the Leased Property without hindrance or molestation by the City during the term of this Agreement or by any person or persons claiming under the City. Section 11.2. Waste. Developer shall not permit, commit or suffer waste or impairment of the Leased Property, or the Developer Improvements thereon, or any part thereof. - 110 Section 11.5. Maintenance and Operation of Improvements. Developer shall at all times keep the Improvements constructed on the Leased Property and all furnishings located therein in good and safe condition and repair as other first class Projects in similar usage are kept (reasonable wear and tear expected), and in the occupancy, maintenance and operation of such Improve- `ments, and Of the Leased Property, shall comply with all laws, ordinahces, codes and regillatihna applicable thereto. Section 11.4. Ownership of Improvements During Lease. Prior to the expiration or termination of this Lease, title to the Improvements (other than those Irrprovemients existing on the Leased ProPerty as of. the date hereof) Shall not vest in the City by reason of its ownership of fee simple title td the Leased Property, but title to such Improvements shall remain in Developer„ If this Lease shall terminate prior the expiration of the term hereof and if, at that time, any Leasehold Mortgagee shall exercise its option to obtain a new lease for the remainder of the term of this Lease pursuant to Article VI, then title to the Improvements shall automatically pass to, vest in and belong to such Leasehold Mortgagee or any designee or nohninee of such Leasehold Mortgagee permitted hereunder, until the expiration or Sooner termination of the tern of such new lease. The City and Developer covenant that to confirm the automatic vesting of title as provided in this Section, each will execute and deliver such 'Further assurances and instruments of assignment and conveyance as may be required by the other or by Lender for that purpose. During the term of .his Lease, Developer shall be entitled to claim depreciation on the Improvements and all equipment, fixtures and machinery therein contained, for all taxation purposes. Section 11.5. Surrender of Leased Property. Except as provided in Section 11.4 above, upon the expiration of the Lease term, or upon termination of this Agreement and the Lease term hereunder in respect to the Leased Property, title to the Improvements shall vest in the City and it shall be lawful for the City to re-enter and repossess the Leased Property and the Improvements thereon without process of law, and Developer, in such event, does hereby wAive any demand fear possession thereof, agrees to surrender and •'deliver the Leased Property and the Improvements thereon, without process of law, peaceably to the City immediately upon such expiration or termination. Section 11.6. City and Developer to Join in Certain Actions. Within ten (10) days after receipt of written request from Developer, the City shall, (a) Join Developer when required by law in any and all applications for permits, licenses or other authorizations required by any governmental or public authority which has jurisdiction in connection with any work as may be reasonably necessary or appropriate for the construction of the Improvements to be constructed by Developer on the Leased Property; and (b) Join Developer in any grants of, or grant such, easements or rights with respect to vehicular access electric, telephone, gas, water, sewer, steam and such other public utilities and facilities as may be reasonably necessary or appropriate for the construction, operation or use of the Leased Property or any Improvements to be erected by Developer thereon. Developer shall pay all fees and charges for all such applications and grants. ARTICLE XII MISCELLANEOUS PROVISIONS Section 12.1. No Partnership or .hint Venture. It is mutually understood and agreed that nothing contained in this Agreement is intended or shall be construed in any manner or under any circumstances whatsoever as creating or establishing the relationship of co-partners, or creating or establishing the relationship of a joint venture between the City and Developer, or as constituting Develbper as the agent or representative of the City for any purpose or in any manner whatsoever. Sectioh 12.2. Recording, documentary. Stamps. This Agreement, or a 'Memorandum hereof in form mutually satisfactory to the parties, shall be recorded among the Land Records of Dade County, State of Florida, and either party may cause any modification of addition to this Lease or ahy ancillary document relevant to this transaction to he so recorded, and the cost of any such recordation, cost of any State of Florida documentary Stamps which legally must be attached to any or all of said papers, and the cost of the applicable Dade County and State transfer tax shall. 'a4 paid in full by Developer. Section 12.3. Florida and Local Laws Prevail. This Agreement shall be governed by the laws of the State of Florida. This Agreement is subject to and shall be interpreted to effectuate its compliance with the Charter of the City df Miami, the City of Miami.Cdde and the Dade County Charter and Code. Furthermore, the terms of this Agreement allow reasonable public access to the water, reasonable public use of sucti property, and comply with other charter waterfront setbacks and view corridor requirements. Any conflicts between tnis Agreement and the aforementioned Codes and Charters shall be resolved in favor of the latter. If any term, cdvenant, or condition of this Lease or the application thereof to any person or circumstances shall, to any extent, be illegal, invalid, or unenforceable because of present or future laws or any rule or regulation of any governmental body or entity or becomes unenforceable because of judicial construction the remaining terms, covenants and conditions - 113 - of this Lease, or application of such term, covenant: or condition to persons or circumstances other than those as to which it is held invalid or unenforce- able, shall not be affected thereby and each term, Covenant, or condition of this Lease shall be valid and be enforced to the fullest extent permitted by law. Contemporaneously with the execution of the Agreement, the City Attorney -has delivered an opinion to Developer opining that the execution and delivery herecif by the City is in Compliance with the Charter Of the CitY of Miami, the City. of Miami Code and the Dade County Charter and Code. Section 12.4. Cdnflicts of Interest; City Representatives Not Individually Liable. No Member, official, representative, or employee of the City or the City Manager shall have any personal interest, direct or indirect, in this Agreement, nor shall any such member, official, representative or emploOe participate in any decision relating to this Agreement which affects his or her personal interdst or the interest of any corporation, partnership or association in which he or she is, directly or indirectly, interested. No member, official, representative or .employee of the City or the City Manager shall be personally liable to Developer or any successor in interest in the event bf any default or breach by the City or the City Manager or for any amount which may become due to Developer or successor or on any obligations under the terms of the Agreement. Section 12.5. Notice. A notice of communication under this Agreemeht by either the City or the City Manager, on the one hand, to Developer, or, on the other, by Developer to the City or the City Manager shall be sufficiently given or delivered if dispatched by registered or certified mail, postage prepaid, return receipt requested; and (a) Developer. In the case of a notice or communication to Developer, it addressed as follows: General Counsel Bayside Center Limited Partnership c/o The Rouse Company 10275 Little Patuxent Patkway Columbia, Maryland 21044 (b) Developer's Records. Developer's original duplicate books and records in auditable form as required in Section 2.5(d) shall be kept and be available to the City during normal business hout:s at its principal place of business in the City of Miami. (c) City Manager. In the case of a notice or communication to the City or the City Manager, if addressed as follows. City Manager 3500 Pan American Drive Miami, Florida 33133 or if such notice is addressed in such other wa9 in respect to any of the foregoing parties as that party may, from time to time, designate in writing, dispatched as provided in this Section 12.5. Section 12.6. Estoppel Certificates. The City and Developer shall at any time and from time to time, within thirty (30) days after written request by the other, execute, acknowledge and deliver to the party which has requested the same or to any prospective 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 modifidatidn agreement, and if the Lease is not in force and effect, the certificate shall so state; (ii) the Lease as modified represents the entire agreement between the parties as to this leasing, or, if it does not, the certificate shrill so state; (iii) the dates on which the term of this Lease commenced and will terminate; (iv) all ;conditions under the Lease to be performed by the CitY or Developer, as the case may be, have been satisfied and, as df the date of such certificate, there are no existing defenses or offsets which the City or Developer, as the case may be, has against the enforcement of the Lease by the other party, or, if such conditions have not been satisfied or if there are any defenses or offsets, the certificate shall so state; and (v) the rental due and payable for the year in which such certificate is delivered has been paid in full, or, if it has not been paid, the certificate shall So state. The party to whom any such certificate shall be issued may rely on the matters therein set forth and thereafter the party issuing the same shall be estopped from denying the veracity or accuracy of the same. Any certificate required to be made by the City pursuant to this paragraph may be made on its behalf by the City Manager. Section 12.7. provisions Not, Merged with Deed. None of the provisions of this Agreement, nor the separate estates of the City and the Developer, are intended to or shall, in any event, be merged, including without limitation by reason of any transfer, whether by operation or law or otherwise (i) transferring Developer's leasehold estate in the Leased Property or its interest in any Improvements or any part thereof from the Developer (or its successors or assigns) to the City (or its successors or assigns), or (ii) transferring title to the Leased Property or any part thereof from the City to Developer, itS successoirs or assigns, and any sUch transfer shall not be deemed to a,ffec t or impair the provisions and covenants of this Agreement. No such merger of estates shall occur unless and until all parties having any interest in this Lease, the leasehbld estate created hereby or the .Improvements, including all Lenders, shall join in the execution of a written instrument effecting such merger. Section 12.8. Titles of Articles and Sections. Any titles of the several parts, ,articles and Sections of this Agreement are inserted for convenience of reference only and shall be disregarded in construing or interpreting any of its provisions. Section 12.9. Counterparts. This Agreement is executed in six (6) counterparts, each of which shall be deemed an original, and such counterparts shall constituteone and the same instrtxrient. This Agreement shall become effective only upon execution and deliver; of this Agreement by the parties hereto and execution and delivery of all Exhibits referred to in Section 1.1. Section 12.10. Nondisturbance and Attornment. The City covenants and agrees with Developer for the benefit of any and all Subtenants occupying any part of the Leased Property or the Improvements from time to time, that in the event of a termination of this Lease the possession of each such Subtenant shall not be disturbed so long as such Subtenant shall not be in default under its Sublease; provided such Subtenant shall attorn to the City. This nondisturbance agreement shall be self -operative and no further agreement between the City and any such Subtenant shall be necessary to effect the same, however, the City agrees from time to time, promptly upon request of Developer or any Subtenant, it will enter into agreements with the Developer and any such Subtenant confirming such nondisturbance agreement. Any such cbnfirmatory agreement may be made on behalf of the City by the City Manager'. Ire the event of a terminatii an of this Lease, each Subtenant shall attorn tb the City. Developer covenants that each Sublease to which it shall be a party Shall contain a clause expressly providing that the Subtenant thereunder shall attorn to the City in the event of a termination of this Lease, but the absence of such a clause from any Sublease shall not relieve the Subtenant from the provisions of this Section 12.10. Section 12.11 Non -Discrimination and Equal Opportunity. Developer Will use affirmative efforts to seek and offer to minority -controlled businesses the opportunity tb lease such portions of the Leased Property as may from time to time become available in accordance with the Minority Parti- cipation Program attached hereto as Exhibit H and incorporated herein by this reference. It shall be an Event of Developer Default hereunder if Developer shall not fund the minority development foundation in accordance with the provisions dealing with same set forth in Exhibit H, which payments shall commence to accrue on the Rent Commencement Date. Section 12.12. Successors and Assigns. Except to the extent limited elsewhere in this Lease, all of the covenants, conditions and obligations contained in this Lease shall he binding upon and inure to the benefit of/the respective successors and assigns of the City and the Developer. IN WITNESS WHEREOF, ROUSE-MIAMI, INC., the sole general partner of BAYSIDE CENTER LIMITED PARTNERSHIP, has caused this Lease Agreement to be signed in its name by its Vice President and its corporate seal to be hereunto affixed and duly attested by its Assistant Secretary, and the CITY COMMISSION OF MIAMI has caused this Lease Agreement to be signed in its name by Sergio Pereira, the CITY MANAGER, and duly attested to by Matty Hirai, the CITY CLERK, on the day and year first hereinabove written. ATTEST: BAYSIDE CENTER LIMITED PARTNERSHIP, A MARYLAND LIMITED PARTNERSHIP Assistant Secretary [Corporate Seal] ATTEST: Matty Hir i, City Clerk APPROVED TO FORM AND CORRE LUCIA ALLE DOU ER CITY ATTORNEY 1124G/452A (was 1544F/452A) By: ROUSE-MIAMI, INC., A MARYLAND CORPORATION, GENERAL PARTNER By: THE CITY OF MIAMI, A MUNICIPAL CORPORA- TION OF ....__ STATE OF FLORIDA By: Sergio Pereira, City Mana.er .SKETCH TO ACCOMPANY LEGAL DESCRIPTION `F .„£ to sr, o— ' r••"'e'sc ' It weft 114114, P , ' 8AYSIDE CENTER LIMITED PARTNERSHIP .R.BROWr LL G. ASSOCIATES, INC. 0 SE EXHIBIT A-1 ••••••,..••• • p I ••••• •••• • ••••••••••••,••••.•• 6 • EXHIBIT A-2 BAYFRONT PARK SITE PLAN ,... --..-- .......1.-• ••-•-•—• •...-P- ..• ',........ , A ...... ,....,.. `....!, r. .- ••••.• . .....,... .,... APAR ; :-:.:-..!.'-'tr.r..:___..__ ---,- , -•••:::.5::,..'s / ...-.::--,.... - ,--.„,,,,,,,.......... ':.----.. ,.....‘ ...„,,,, 4..... . ' .., 1 . - T _....-,.. 1.•••.•• roan .e • ... • , • 7 "•• laT• a4I-1 • / /4. PARK siTE hoUNDARY • • • •• 1••• • TAIT NOVI IL V A 2 'IJ 0° g- 0 r•0•••• . • 4.01••••••••2:10.• ge--a ate, .. • • 0 lSSTh WWI NAM 118 1.14.06•411 14.1.111./ 110.• axle IV 'SWIM • IMIPOIViele lam OS fent PIMA LPN t. ISMILMELINNBI / Wale 0.011411•Ire MO Sala OrISOUP*Oliet- 114.. NAN Kola 1.1l4 Ikea I t. EAiSIBIT A-3 -- SITE PLAN iltatettlett IlAYSIDIC 11111i PLAN •• Nowa a• - — • • f ? . ,/L , .:.0/e0azarteLG AcA ,gyp; d, - -Wend Pep.e.kaiyom, November 21, 1984 Revised December 3, 1984 Revised May 16, 1985 Revised September 11, 1985 LEGAL DESCRIPTION RETAIL PARCEL S 1. ° (620.xai I ilfa ._;1ei«. 3,) 1.4.E Commence at the Northeast corner of Block 61 North of the A. L. KNOWLTON MAP OF MIAMI, as recorded in Plat Book "B" at Page 41 of the Public Records of Dade County, Florida; thence run North 89°58'18" East along the Easterly prolongation of the Northerly line of Block 61 North of said A. L. KNOWLTON MAP OF MIAMI for a distance of 703.43 feet to a point; thence run South 00°08'11" West for a distance of 100.00 feet to a point of intersection with the South line of Port Boulevard as recorded in Official Records Book 6811 at Page 240 of the Public Records of Dade County, Florida; said point being the Point of Buinning of the parcel hereinafter described; thence run South 00 08'11" We8t for a distance of 181.09 feet to a point; thence run South 89 51'49" Ea8t for a distance of 23.83 feet to a point; thence run South 00 08'11" West for a distance of 41.50 feet to a point; 'thence'run North 890 71'49" West for a distance of 23.83 feet to a point; thence run South 00°08'11" West for a distance of 174.50 feet to a point; thence run South 89°51'49" East for a distance of 23.83 feet to a point; thence run South 00°08'11" Wendt for a distance Of 41.50 feet to a point; thence run North 89 51'49" We8t for a distance of 179.58 feet to a point; thence run South 00 08'11" West for a distance of 25.00 feet to a point; thence run North 89 51'49" West for a distance of 157.27 feet to a point of intersection with a line 210 feet Easterly of and parallel with the City Monument line of Biscayne Boulevard (North); thence run South 16°51'29" East along a line parallel with the City Monument line for a distance of 57.78 feet to a point; thence continue along a line 210 feet Easterly of and parallel with the City Monument line South 09°33'21" East for a distance of 139.74 feet to a point; thence run South 89°51'49" East for a distance of 140.96 feet to a point; thence run South 56°58'03" Ea8t for a distance of 604.49 feet to a point; thence run South 65 50'46" East for a distance of 270.56 feet more or less to a point of intersection with the West line of the EXHIBIT 8-1 LEGAL DESCRIPTION RETAIL PARCEL Revised September 11, 1985 Page. 2 Baywalk Area as described in the Warranty Deed dated July 14, 1985, and filed July 31, 1985, under Clerk's File No. 85R-231126 of the Public Records of Dade County, Florida; thence run North 27°13'14" East along the West line of said Baywalk Area for a distance of 148.28 feet to a point designated PL-14 in said Warranty Deed, said point bears South 57°16'29" West and is 77.25 feet distance from an U. S. Army Corp of Engineers Station BFP-1, said station being a chiseled "x" in a concrete bulkhead; thence run South 85°27'43" East along the North line of said Baywalk Area for a distance of 49.24 feet more or less to a point of intersection with a line 65.00 feet Northwesterly of the Metro- politan Dade County Bulkhead line as recorded in Plat Book 74 at Page 18 of the Public Records of Dade County, Florida; thence run North 27°17'27" East along said line parallel with the Metro- politan Dade County Bulkhead line for a distance of 714.32 feet to a point of intersection with the existing bulkhead of the Miarrmarina; thence run North 400 20'40" West along said existing bulkhead for a distance of 185.10 feet to a point of intersection in the existing bulkhead; thence run South 27°12'22" West for a distance of 549.00 feet to a point of intersection in the existing bulkhead; thence run North 85°17'38" West along said bulkhead for a distance of 58.54 feet to a point of intersection in the existing bulkhead; thence run South 49°23'58" West along said bulkhead for a distance of 86.76 feet to a point of inter- section in the existing bulkhead; thence run South 04°40'46" West along said bulkhead for a distance of 85.53 feet to a point of intersection in the existing bulkhead; thence run South 27°05'27" West along said bulkhead for a distance of 21.57 feet to a point of intersection in the existing bulkhead; thence run North 85°48'03" West along said bulkhead for a distance of 26.87 feet to a point of intersection in the existing bulk- head; thence run North 65°50'46" West along said bulkhead for a distance of 61.23 feet to a point; thence run North 24°09'14" East for a distance of 52.25 feet to a point; thence run North 63 50'46" West for a distance of 60.00 feet to a point; thence run South 24 09'14" West for a distance of 52.25 feet to a point of intersection with the existing bulkhead; thence run North 65°50'46" West along said bulkhead f r a distance of 156.00 feet to a point; thence run North 24s09'14" East for a distance of 52.25 feet to a point; thence run North 65°50'46" West for a distance of 60.00 feet to a point; thence run South 24°09'14" West for a distance of 52.25 feet to a point of intersection with the existing bulkhead; thence run North 65°50'46' West along said bulkhead for a distance of 49.00 feet to a point of curvature of a curve concave to the Northeast having a radius of 139.39 feet; thence Northwesterly and Northerly along said E. R. BROWNELL & ASSOCIATES. (NC.. MIAMI, FLORIDA LEGAL DESCRIPTION RETAIL PARCEL Revised September 11, 1985 Page 3 curve through a central angle of 65°58'57" for an arc distance of L6Q.52 feet to a point of tangency; thence continue along said existing bulkhead North 00°08'11" East for a distance of 179.08 feet to a point; thence run South 89°51'49" East for a distance of 52.25 feet to a point; thence run North 00°08'11" East for a distance of 60.00 feet to a point; thence run North 89051'49" West for a distance of 52.25 feet to a point gf inter- section with the existing bulkhead; thence run North 00 08'11" East along said bulkhead fgr a distance of 156.00 feet to a point; thence run South 89 51'49" Ea3t for a distance of 52.25 feet to a point; thence run North 00 08'11" East for a distance of 60.00 feet to a point; thence run North 89°51'49" West for a distance of 52.25 feet to a point of intersection with the existing bulkhead; thence run North 00°08'11" East along the said bulkhead and its Northerly projection for a distance of 176.38 feet to a point of intersection with the South line of said Port Boulevard; thence run South 89°58'18" West along the South line of said Port Boulevard for a distance of 275.42 feet more or Less to the Point of Beginning; containing 13.0767 Acres more or less. E. R. DROWNELL et ASSOCIATES. INC . MIAMI. FLORIDA LEASE. AGREEMENT (Retail Parcel) Between BAYSIDE CENTER LIMITED PARTNERSHIP and CITY OF MIAMI Exhibit E - Permitted Encumbrances and Easements 20 foot Storm Sewer Easement and 20 foot Sanitary Force Main Easement as shown on survey prepared by E. R. Brownell & Associates, Inc. under SK. No. LS-952, dated March 22, 1985, as last revised August 5, 1985. 2. Rights of the United States Government and/or the State of Florida arising under the United States Government control over navigable waters and the alienable rights of the State of Florida in the lands or waters of similar character as to any part of the Leased Property which may be artificially filled -in lands in what was formerly navigable waters, and any accretions thereto. 3. Resolution No. 85-551 of the Commission of the City of Miami, Florida, expressing the intent of the City Commission that Miamarina Parkway Drive remain available as access to Miamarina until the Bayside Project construction activity requires closure (Informational Note: Resolution No. 85-550 vacated Miamarina Parkway Drive). 4. Asphalt drives (affecting Areas "A-4" and "A-5") as shown on survey prepared by E. R. Brownell & Associates, Inc. under SK. No. LS-950, dated March 22, 1985. 1309G/500A-1 ✓645/uuie.44 e. g.,zes g4.ectaccizte�,, .Giza. engizeei a, - `anti .S'°usuaeyoxd, S.U45 December 4, 1984 Revised September 11, 1985 LEGAL DESCRIPTION AREA "A--4" Commence at the intersection of the City Monument Line of Biscayne Boulevard (North) and N. E. 1st Street; thence run South 89°59'21" East along the Easterly extension of the City Monument Line of N. E. 1st Street for a distance of 723.50 feet to the Point of Beginning of the parcel hereinafter described; thence run South 28°41'03" East for a distance of 108.30 feet to a point; thence run North 61°18'57" East for a distance of 72.54 feet to a point of intersection with the West line of the Baywalk Area as described in the Warranty Deed dated July 14, 1985 and filed July 31, 1985 under Clerk's File No. 85R-231126 of the Public Records of Dade County, Florida; thence run North 27°13'19" East along the West line of the said Baywalk area for a distance of 147.88 feet to a point; thence run North 28 41'03" West for a distance of 97.11 feet to a point; thence run South 61°18'57" West for a distance of 195.00 feet to a point; thence run South 28°41'03" East for a distance of 71.7.0 feet to the Point of Beginning, containing 0.689 Acres, more or less. EXHIBIT B-2 42 ;32. .'FJxaeu�+ze ,,� _la-va� Z/ed . �`ize,. Ca�zr izee - � z/a Ytedwebtam. 3f5, Cadanal'�� ix ,..46ia,n4; .Tla.:rc SS/45 December 4, 1984 LEGAL DESCRIPTION AREA "A-°5" .1,I74.4, .c.c,r 3s > i Commence at the intersection of the City Monument Line of Biscayne Boulevard (North) and N. E. 1st Street; thence run South 89°59'21" East along the Easterly extension of the City Monument Line of N. E. 1st Street for a distance of 335.00 feet to the Point of Beginning of the parcel herein- after described; thence run North 00 00'39" East for a distance of 190.00 feet to a Point; thence run South 89°59'21" East for a distance of 130.00 feet to a point; thence run South 00°00'39" West for a distance of 195.00 feet to a point; thence run North 89 59'21" West for a distance of 130.00 feet to a point; thence run North 000 00'39" East for a distance of 5.00 feet to the Point of Beginning, containing 0.582 Acres, more or less. EXHIBIT B-3 EXHIBIT C Intentionally deleted. 'XHIBIT D -- FORM OF GUARA AGREEMENT OF GUARANTY January ,1985 As used in this Agreement of Guaranty, the term "Ground Lease" means that certain Lease Agreement, of even date herewith, by and between the City of Miami, a municipal corporation of the State of Florida (the "City"), as lessor, -and Bayside Center Limited Partnership, a Maryland limited partnership ("Developer"), as lessee, with respect to the Bayside Specialty Center Retail Parcel. All other capitalized terms used herein shall have the meaning ascribed to theca in the Ground Lease unless otherwise defined herein. The City is willing to enter into the Ground Lease with Developer only if the undersigned guarantees the full, prompt and faithful performance by Developer of all of its obligations under the Ground Lease until Completion Date shall have occurred. NOW THEREFORE, in consideration of the premises and of other valuable consideration and to induce the City to enter into the Ground Lease, the undersigned agrees with the City as follows: 1. The undersigned unconditionally guarantees to the City the full, prompt and faithful performance by Developer of all of its obligations under the Gz nd Lease arising on or before the Completion Date, including, without ILY:en'ion, the obligation Of Developer to complete, equip and pay for the Developer Improvements free and clear of any and all liens connected with or arising out of said construction, equipment or completion. 2. If Developer does not perform the obligations specified in paragraph 1 of this Agreement of Guaranty an or before the time such ooligations are to be performed by Developer pursuant to the Ground Lease, the undersigned shall perform such obligations and shall pay all costs and expenses incurred in so doing and shall pay to or reimburse the City for all expenses incurred by, or other moneys due, in enforcing such obligations of the Developer under the Ground Lease and in enforcing the obligations of the undersigned hereunder. 3. The City may without notice to or the consent of the undersigned at any time and from time to time, either before or after any default of Developer, (a) amend, by agreement with Developer, any provision of the Ground Lase, (b) make any agreement with Developer for the extension, payment, compounding, compromise, discharge or release- of any provision of the Ground Lease for any modification of the terms thereof, and (c) without limiting the oe, Feral ity of the foregoing, the City is expressly authorized to surrender to Developer, or to deal with or modify the form of, any security which the City may at any tine hold to secure the performance of any obligation. hereby guaranteed, and the guaranties herein made by the undersigned shall not be impaired or affected by any of the foregoing. 4. Any notice or demand given or made under this Guaranty shall be given or made by mailing the same by registered or certified mail to the party to whom the notice or demand is given or made at the address of such party set forth below, or such other address as such party may hereafter designate by notice given as provided in this paragraph. The address for notices to Developer is: Bayside Center Limited Partnership 10275 Little Patuxent Parkway Columbia, Maryland 21044 Attention: General Counsel The address for notices to the City is: City Manager City of Miami 3500 Pan American Drive Miami, Florida 33133 . 5. This Guaranty is, and shall be deemed to be, a contract entered into under and pursuant to the laws of the State of Florida and shall be in all respects governed, construed, applied and enforced in accordance with the laws of said state; and no defense given or allowed by the laws of any other state or country shall be interposed in any action or proceeding herein unless such defense is alsd given or allowed by the laws of the State of Florida. 6. Each reference herein to the City shall be deemed to include its successors and assigns as lessor under the Ground Lease, in whose favor the provisions of this Guaranty shall also inure. Each reference herein to the undersigned shall be deemed to include the successors and assigns of the undersigned, all of whom shall be bound by the provisions of this Guaranty. .7. No delay on the part of the City in exercising any rights hereunder or failure to exercise the same shall operate as a waiver of such rights; no notice th or demand on the undersigned shall be deemed to be a waiver of the obligation of the undersigned or of the right of the City to take further action without notice or demand as provided herein; nor in any event shall any modification or waiver of the provisions of this Guaranty be effective unless in tirriting nor shall any such waiver be applicable except in the specific instance for which given. 8. This Guaranty may be executed in one or more counterparts by some or all of the parties hereto, each of which counterparts shall be an original and all of which together shall constitute a single agreement of guaranty. IN 'WITLESS WHEREOF, the undersigned has duly executed this Guaranty as of the day and year first above written. 1700 /457A THE ROUSE COMPANY By: Vice -President 2 - , • .] 27n— C ULJ •fl• .-4j o`t . , .... . • •• a rPJ-1-1 „ . . _Ujj• - • I \ ?;'?n -,t>6 •• Wl• • .• • • qt. riFL' r;ji i I r I J _ ,....r. FT) r- •••-•-• r '71 ; Li r.Tri 1._ ' " ' " K I % I. l'• a .• .7 • • • • • k • • Le" I .Q.:Q;CC.U6".14•CC.C;;;IC,4<`C-4304'0.' 0 F.E.C. TRACT Iklyat 1.1.0•1,4. .; Wf,...L.):Zt:•RSCP •••:.: t .:PACE17-x.'• 1:171, . 1 -- v. IS , ..'. NI I A M I CENT R •,.— ,•• • .011°1 AR MT I ) s.;'/' • SITE LOCATION PLAN sepTENIRER 9 8 S C A L E 1" - 100- 0" BAYSIDE THE ROUSE COMPANY EXHIBIT F Sheet 1 of 10 j 0.r 19,111 I 710.4 :14; I I r '1; . • „ •Ilked T. • " • • ••••• '•••' P osE --77-;--:•••••• •• • ...E.X.J.ST I g.1%6 0 • 46. 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MARKET BUILDING 0 MARKET & PIER BUILDING PLANS '7\7 SEPTENIHEK 1983 S C .1 L BAYSIDE THE ROUSE COMPANY Sheet 6 of 10 J a a :,,00 0g g r"-- -•••1 '4.' L ,.4.,,, i • -------.'" - ....II ••-'1,15RESTAU0ANT . • • • ' • 1 i • • • • 4- ,,,..t .......11.1, .7:714•-a.-. -.4--.2...-Aa., ••• - ....>-1-:'"--'---''---74".:,•-•Z'"4 -• .-- ''''' : .—...;•, -- — -- I •'''' ------ • . — • , . , , .. .,,, ....p . ___----___ ____. 4,-1,7,z ..„,,,...--.--„,......„., ,-- . • - -----,,,\--v -:!_„..--- 1.1 I IV ---- . -- ----. 'Iro . i.e. liii/ k e • —___________. A, . 4 .3_1C A F E • . ' V. . ---,.),..L.a.,......., isc, ..__ . L.. _.0_,,y— 41., .1:414va. ,,ii,,,...,::,...07,_ ... ,,-...,,L.: -, 11 E A T M A R 1 N A e • O 0 ft 0 ..... .0 s LW1J —1-41. t'•=7.....T.-= , .,.,.._ - - $ - 1,-.4,41-14-14- —.' —7.2",-.•.„,... 4._.‘,,....-...:—.• r.f.47....,..7p7..-i.........'.... J. 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'. • ENHANCEMENT Or , - • 1 • EXISTING i s'e F"9 0N• '• WATERFRONT I .--. r_-•• . a I `•-• - " • PROMENADE PUBLIC ACCESS TO WATERFRONT F.E.C. T RACT •.,. • 7 • ••0 • IR 0. siUk R S I, • • ; - • '. fro. °'.. POTENTIAL ''''':':z.0 1 CVERFLOW SURFACE PARKING -30.-.,--,---.." •1 .. -'- ••-.. t ,. 250 CARS • ..:-.----------__Aka,--mail---------a.-7? aa--..- ' - • 'w Zlia,..t'.'!-' ..':-.---.- - - --"'` ' -...... . • • -; is ...,,,_.k Lk. ,.. .... -1—"---------"' 7- ..... • • • Ole 1r '-'-, ; ,... • • • Li -- --....,. . • ..,... ..0 et re:,-..,--4.1-,:- ....r_ r.— .-. i„•- :-. p..3.Rvx,,c,, i • , . —*7 1200 CAi-';'7 ,: 'C.:: ' • 2' Q. • ENTRANCE DPNE TC PAq.KING Di--CP-OFF \ • AND SERVICE P1CK-UP DRi ' • - • • • 0 20.1 NOT ilifj ACCESS : (ob 1—s-L, • '• 1. ' a. • a' ' . 04/ BUS DROP-OFF d. . c.11 •. 1 • • •-- • 1 • ".•'s, • /-; PRC6SEDGRANDF,A• ; PRIX COURSE,;•-y-N4 / , .0 ' • , .'C 1;("%i. t•• •-?N'e et.9 1`1* ' I'. • • . ••••• BAYSIbE A SERVICE VEHICULAR ACCESS / GRAND PRIX F.E.0 RACT OPEN PEDESTRIAN CIRCULATION INTEGRATES PROJE,CT WITH EXISTING PARK, MARINA AND CBD • '',1 .. , "• • -' .:; k.. rIi]EASY ACCESS TOAND•• " ' 11 ;I FROM PROPOSED \i AMPHITHEATER ? ...: Cl. 1 '-":•',..'24 ,---' I tl' } rEPA Velli ON2r/...:.- .4i... t PUBLIC PEDESTRIAN ACCESS —v.:wort "Li - MARKET SQUARE • A CIVIC PLAZA FOR THE ENJOYMENt OF THE RUOLIC • \‘: • MARKET SQUARE / CIVIC PLAZA CONCEPT DIAGRAMS BAYSIDE THE ROUSE COM PA N Y Sheet 8 of 10 • : F.E.C. TRACT •IINV,116/1 e:u - • Ri;ca,:9'• -r•E• 'Q; • - .7• fil.) • '4•4•-•...- * • SYMBOLIC; GATEWAY BEA1,:',ON TO INTRACOASTAL . WAERWAV 714lir a A S175%. • .•)q1,11_1. • • s; 4 I • - • I -(.. e 718 Y - FS • PIER PARK VISUAL IMAGE - PLANTING DIMINISHES IMPACT OF PARKING °GARAGE PROJECT PRESERVES EXISTING GROVE OF 1 MATURETREE Ir=r.1i; •••• t —1"4. —6 a • $ ./ • PIER PARK PRESERVES OPEN -"c VISTAS TO BISCAYNE BAY FEELAG OF /-)LANDSCAPED V INTEGRATION WITH PROPOSEDr4 ...AtvIPHITHEATER 4..51 e,,dereir:17 l':•"•:4Zfr140714 ,afIt .10,5M01$ COfirCp0,1 • --"•-•.) .•...-Ce. ,, ,.., rrt, ;:;'.f.f.,11 i F.E,c RACT -‘••• .2\*`\\\•., "-AZ ••••— • • : )•,.; • e "7. h t" ' L..3 0 FOUNTAINS AND OPEN MARKET BUILDINGS • INVITE PEDESTRIANS TO MARINA • 0 VISIBILITY TO WATER RACT a C..4ECI.Ono if AREA S:-=•••=;-'-'-`'.==. POTENTIAL OVERFLOW SURFACE PARKING 250 CARS• • oila • • a, ••‘. AREA A-3 PROPOSED ['BUILDING FOOT PRINT IS .91 ACRES • (2.06 ACRES ALLOWED) •••: • A•1.-_,71 . SANITARY FORCE MAIN MAXIMUM HEIGHT . OF ALL NEW • -7.•", CONSTRUCTION 57 FT. ABOVE • MEAN LEVEL •- ; •HvtI 11' NO FOUNDATION OR STRUCTURE FALLS1 WITHIN 10 FT, OF THE 6% CENTER LINE OF THE % .:,-Fr,•• FORCE MAIN INTEGRATION WITH NATURAL LANDSCAPE COMPLIANCE WITH R.F.P. LIMITATIONS CONCEPT DIAGRAMS BAYSI DE THE ROUSE COMPAN Y Sheet 9 of 10 .04%f i jM %i/ v( 4/ VV WLd1• 66471;AMA FIRST AMENDMENT TO AMENDED AND RESTATED LEASE AGREEMENT THIS FIRST AMENDMENT TO AMENDED AND RESTATED LEASE AGREEMENT ("First Amendment") made as of this /7 day_ of aiirt'� , 1986, by and between BAYSIDE CENTER LIMITED PARTNERSHIP, a Maryland limited partnership (hereinafter referred to as "Developer"), and the CIT( OF MIAMI, a municipal corporation of the State of Florida (hereinafter referred to as the "City"), acting by and through the CITY MANAGER (hereinafter referred to as the "City Manager"), and with the prior approval of the City Commission of Miami. W ITNESSET H: On January 14, 1985 the parties hereto entered into that certain Lease Agreement with respect to the Bayside Specialty Center, Retail Parcel, which the parties hereto amended and restated in its entirety by execution of an Amended and Restated Lease Agreement dated October 15, 1985 (hereinafter referred to as "the Restated Lease"). The parties now desire to clarify certain terms and conditions of the Restated Lease and to incorporate certain additions. In consideration of ten dollars ($10.00) paid by Developer to City and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties agree as follows: 1. Amendment to Restated Lease. The Restated Lease is hereby amended in the following respects: Paragraph 1.1. Section 1.2 of the Restated Lease is hereby amended by adding the following defined term: "'W$,SA Agreement' means that certain Agreement for the Construction of Water and Sewer Facilities and for the Provision of Water and Sewer Disposal Services for Bayside Specialty Center and Parking Garage dated January 21, 1986 between the City, Developer and Metro- politan Dade County." Paragraph 1.2. Clause (c) of Section 2.2 of the Restated Lease is amended by deleting the phrase "or alcoholic (including beer and wine)" in the sixteenth and seventeenth lines and inserting in lieu thereof ", alcoholic beverages, beer and wine". Paragraph 1.3. Clause (b) of Section 2.3 of the Restated Lease is amended by adding the following new paragraph to the end of clause (b):. "On or about the date of completion of the Developer Improvements Developer shall cause its engineer to prepare a survey ("As -Built Survey") °showing, among other things, the location of the utility easements and pedestrian and vehicular access easements granted pursuant to subclauses (ii), (v), (vii), (viii) and (ix) of this clause (b) and the easements granted pursuant to subclauses (i), (ii) and (iv) of Section 2.3(b) of the Parking Garage Ground Lease. Developer shall submit the As -Built Survey to the City Manager for the City Manager's approval as to the locations of such easements and the location of such other easements granted under this Lease, the Parking Garage Ground Lease or the WASA Agreement as Developer may reasonably require. The City Manager shall review the As -Built Survey and shall promptly (but in any event within thirty (30) days after such receipt) give Developer notice of approval or disapproval setting forth in detail the reasons for any disapproval. The City Manager's right to disapprove the location of the easements shall be limited to matters which do not conform substantially to approved Construction Plans, Developer Improvements and Parking Garage or, in the case where the matter was not shown on the Construction Plans, such matters would be in violation of this Lease, the Parking Garage Ground Lease or applicable governmental ordinances, codes, plans, laws or regulations. If no response from the City Manager is delivered to Developer within thirty (30) days after submission the location of the easements on the As - Built Survey will be deemed to be approved. Developer shall within thirty (30) days after the date Developer receives disapproval resubmit the As -Built Survey altered to meet the grounds for which the City Manager has a right of disapproval. Any resubmission shall be subject to the procedure hereinabove provided for the original submission until the location of the easements on the As -Built Survey is approved by the City Manager. Nothing in this paragraph shall limit the Developer's easement rights in the event the utility, roadway, sidewalk or' bridge is not yet constructed or limit the Developer's right to relocate such easements to such other locations as the City Manager may approve from time to time as herein provided." -2- Paragraph 1.4. Clause (h) of Section 5.3 of the Restated Lease is amended by adding the words "or any Transfer by will or by operation of law as a result of a death of a limited partner of Developer" at the end of the clause. Paragraph 1.5. Clause (j) of Section 5.3 of the Restated Lease is amended by inserting the phrase "or lending institution" after the phrase "made by another partner" appearing in the second line. Paragraph 1.6. Under Section 10.6 of the Restated Lease insert the phrase ", with the Leasehold Mortgagee's prior written approval," after the phrase "Developer shall have the right to terminate this Lease"Appearing in the seventh line of this Section. Paragraph 1.7. Under Section 12.6 of the Restated Lease (a) insert the phrase "Leasehold Mortgagee," prior to the words "prospective Leasehold Mortgagee" appearing in the fourth line and (b) add the following new sentence to Section 12.6 after the first sentence: "The City or Developer shall also from time to time within thirty (30) days after written request therefore execute, acknowledge and deliver to the party requesting the same or to any Leasehold Mortgagee, prospective Leasehold Mortgagee or assignee designated by Developer such certificates as the requesting party, Leasehold Mortgagee, prospective Leasehold Mortgagee or assignee may reasonably require related to the enforceability, status and effect of the Miami MotorSports Agreement, WASA Agreement, Minority Participation Agreement or any other agreement to which both City and Developer are a party." 2. Effect of this Amendment. Except as is hereinabove set forth, the provisions of the Restated Lease shall hereafter remain in full force and effect, as if this Amendment had not been entered into. APPROVED CORRECTN IN WITNESS WHEREOF, ROUSE-MIAMI, INC., the sole general partner of BAYSIDE CENTER LIMITED PARTNERSHIP, has caused this First Amendment to Amended and Restated Lease Agreement to be signed in its name by its Vice President and its corporate seal to be hereunto affixed and duly attested by its Assistant Secretary, and the CITY COMMISSION OF MIAMI has caused this First Amendment to Amended and Restated Lease Agreement to be signed in .its name by Cesar Odio, the CITY MANAGER, and duly attested to by Matty Hirai, the CITY CLERK, on the day and year first hereinabove written. ATTEST: Suzanne K rby, Assistant Secretary [ CORPORATE SEAL] ATTEST: Y HIRAt'; tJity Clerk FORM AND LUC LEN DOUGHER City At orney BAYSIDE CENTER LIMITED PARTNERSHIP, A Maryland Limited Partnership By: ROUSE-MIAMI, INC., A Maryland Corporation, General Partner By: Jies F. Dausch, Vice -President THE CITY OF MIAMI, A Municipal Corporation of the State of Florida By: Cesar Odio, City Manager STATE OF ( icsQc'rok COUNTY OF flnrv, I, an officer authorized to to a acknowledgments, HEREBY CERTIFY that on this Poici day of Igo , 1986, personally appeared before me JAMES F. AUSCH and SUZANNE KIRBY, known to me to be the Vice President and Assistant Secretary, respectively, of ROUSE-MIAMI, INC., a Maryland corporation, known to me to be the general partner of Bayside Center Limited Partnership, a Maryland limited partnership, and known to me to be the persons who executed the foregoing instrument, and they severally acknowledged the execution thereof as the free and formal act of the said corporation as the sole general partner of such Partnership. WITNESS my hand and official seal in said County and State the day and year last aforesaid. Notary Public, State of Maryland My Commission Expires: `f'}\�S(� CONSENT THE CHASE MANHATTAN BANK (N.A.), Mortgagee under that certain Building Loan Mortgage dated October 16, 1985 and recorded October 29, 1985 under Clerk's File Number 85R-337869 in the Public Records of Dade County, Florida, does hereby consent to the foregoing First Amendment to the Amended and Restated Lease Agreement and agrees to be bound thereby. THE CHASE MANHATTAN BANK (N.A.) By: /4 �r(• /� I, an officer authd to take; acknowledgements, HEREBY CERTIFY that on this •ay of 44,A..%L-• , 1986, personally appea ed--be ore m �� , ,! , '/ , known to me to be the (/ of PH CHASE T BANK (N.A.) and known to me to be the person who executed the above consent to the foregoing instrument, and he/she acknowledged the execution thereof as the free and formal act of the said corporation. WITNESS my hand and official seal in said County and State the day and year last aforesaid. My Commission Expires: Notary Public State of NOTARYROBERT PUBLIC, tat of State of New Ycurl; No. 41•8L'33570 Qualified ie Queeue Catuttr wootlisaliaci riree danuaq alna CKV1-,d (2) 11/16/7 ,1442/DAA ,7/3 4,0 iv, SECOND AMENDMENT TO AMENDED AND RESTATED LEASE AGREEMENT THIS SECOND AMENDMENT TO AMENDED AND RESTATED LEASE AGREEMENT (this "Amendment") made as of this ,e.y * day of , , 1987, by and between BAYSIDE CENTER LIMITED PARTNERSHIP, a Maryland limited partnership (hereinafter referred to as "Developer"), and the CITY OF MIAMI, a municipal corporation of the State of Florida (hereinafter referred to as the "City"), acting by and through the CITY MANAGER (hereinafter referred to as the "City Manager"), and with the prior approval of the City Commission of Miami. W ITNESSET H: On January 14, 1985 the parties hereto entered into that certain Lease Agreement with respect to the Bayside Specialty Center, Retail Parcel, which the parties hereto amended and restated in its entirety by execution of an Amended and Restated Lease Agreement dated October 15, 1985 as amended by a First Amendment dated August 19, 1986 (hereinafter collectively referred to as "the Restated Lease"). The parties now desire to correct the legal description of the Retail Parcel and to make certain other corrections. In consideration of ten dollars ($10.00) paid by Developer to City and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the par -ties agree as follows: 1. Amendment to Restated Lease. The Restated Lease is hereby amended by deleting Exhibit B-1 and inserting the attached Exhibit B-1 in lieu thereof. 2. Effect of this Amendment. Except as is hereinabove set forth, the provisions of the Restated Lease shall hereafter remain in full force and effect, as if this Amendment had not been entered into. IN WITNESS WHEREOF, ROUSE-MIAMI, INC., the sole general partner of BAYSIDE CENTER LIMITED PARTNERSHIP, has caused this Second Amendment to Amended and Restated Lease Agreement to be signed in its name by its Vice President and its corporate seal to be hereunto affixed and duly attested by its Assistant Secretary, and the CITY COMMISSION OF MIAMI has caused this Second Amendment to Amended and Restated Lease Agreement to be signed in its name by. Cesar Odio, the CITY MANAGER, and duly attested to by Matty Hirai, the CITY CLERK, on the day and year first hereinabove written. ATTEST: Suzanne Irby, Assistant Secretary [CORPORATE SEAL) ATTEST: BAYSIDE CENTER LIMITED PARTNERSHIP, A Maryland Limited Partnership By: ROUSE-MIAMI, INC., A Maryland Corporation, General Partner By: mes F. Dausch, ice -President THE CITY OF MIAMI, A Municipal Corporation orf the State of Florida By: TY HIRAI, City Clerk Cesar Odio, City Manager APPROVED AS TO .ORM AND CORRECTNESS• } LUCIA AL o+UGHERTY City Att• ney STATE OF ` 7f ay COUNTY OF (,,i,/w, i, an officer authorized to take acknowledgments, HEREBY CERTIFY that on this _r40)17 day of 17 ave zii,lc&- , 1987, personally appeared before me JAMES F. DAUSCH and SUZANNE KIRBY, known to me to be the Vice President and Assistant Secretary, respectively, of ROUSE-MIAMI, INC., a Maryland corporation, known to me to be the general partner of Bayside Center Limited Partnership, a Maryland limited partnership, and known to me to be the persons who executed the foregoing instrument, and they severally acknowledged the execution thereof as the free and formal act of the said corporation as the sole general partner of such Partnership. WITNESS my hand and official seal in said County and State the day and year last aforesaid. Notary Public, State of Maryland My Commission Expires: 7-/-VO CONSENT THE CHASE MANHATTAN BANK (N.A.), Mortgagee under that certain Building Loan Mortgage dated October 16, 1985 and recorded October 29, 1985 under Clerk's File Number 85R-337869 in the Public Records of Dade County, Florida, does hereby consent to the foregoing Second Amendment to the Amended and Restated Lease Agreement and agrees to be bound thereby. THE CHASE MANHATTAN BANK (N.A.) By: T 2)CLC U- 2k (t,Aik, I, an officer authorized to take acknowledgments, HEREBY CERTIFY that on this day of Sec-je.+V,ef-- , 1987, personally appeared (�before mec v�i,ccly,+{� , known to me to be the \ i cs/ Prr,,4•y.* of THE CHASE MANHATTAN BANK (N.A.) and known to me to be the person who executed the above consent to the foregoing instrument, and he/she acknowledged the execution thereof as the free and formal act of the said corporation. WITNESS my hand and official seal in said County and State the day and year last aforesaid. My Commission Expires: //`1, i• Notary Public / State of . /r MARGARET RUSA Notary Public State of New York No. 41-4689199 Qualified in Queens County Commission Expires September 30, 1989 oze tr teeici, - 2rr d .9i4ok e November 21, 1984 Revised December 3, 1984 Revised May 16, 1985 Revised September 11, 1985 LEGAL DESCRIPTION RETAIL PARCEL atal `�Clayr Commence at the Northeast corner of Block 61 North of the A. L. KNOWLTON MAP OF MIAMI, as recorded in Plat Book "B" at Page 41 of thS Public Records of Dade County, Florida; thence run North 89 58'18" East along the Easterly prolongation of the Northerly line of Block 61 North of said A. L. KNOWLTON'MAP OF MIAMI for a distance of 703.43 feet to a point; thence run South 00°08'11" West for a distance of 100.00 feet to a point of intersection with the South line of Port Boulevard as recorded in Official Records Book 6811 at Page 240 of the Public Records of Dade County, Florida; said point being the Point of Bgginning of the parcel hereinafter described; thence run South 00 08'11" We8t for a distance of 181.09 feet to a point; thence run South 89 51'49" Ea8t for a distance of 23.83 feet to a point; thence run South 00 08'11"West for a distance of 41.50 feet to a point; thence run North 89 51'49" West for a distance of 23.83 feet to a point; thence run South 00°08'11" West £or a distance of 174.50 feet to a point; thence run South 89 51'49" East gor a distance of 23.83 feet to a point; thence run South 00 08'11" Wegt for a distance of 41.50 feet to a point; thence run [north 89 51'49" Wegt for a distance of 179.58 feet to a point-; thence run South 00 08'11" West for a distance of 25.00 feet to a point; thence run North 89'51'49" West for a distance of 157.27 feet to a point of intersection with a line 210 feet Easterly of and parallel with the City Monument line of Biscayne Boulevard (North); thence run South 16 51'29" East along a line parallel with the City Monument line for a distance of 57.78 feet to a point; thence continue along a line 210 feet Easterly of and parallel with the City Monument line South 09 33'21" East for a distance of 139.74 feet to a point; thence run South 89'51'49" Ea8t for a distance of 140.96 feet to a point; thence run South 56 58'03" Ea8t for a distance of 604.49 feet to a point; thence run South 65 50'46" East for a distance of 470.52 feet more or less to a point of intersection with the West line of the EXHIBIT B-1 THIRD AMENDMENT TO AMENDED AND RESTATED LEASE AGREEMENT THIS THIRD AMENDMENT TO AMENDED AND RESTATED LEASE AGREEMENT (this "Amendment") made as of this 15th day of April , 1993, by and between BAYSIDE CENTER LIMITED PARTNERSHIP, a Maryland limited partnership (hereinafter referred to as "Developer"), and the CITY OF MIAMI, a municipal corporation of the State of Florida (hereinafter referred to as the "City"), acting by and through the CITY MANAGER (hereinafter referred to as the "City Manager"), and with the prior approval of the City Commission of Miami. W ITNESSET H: On January 14, 1985 the parties hereto entered into that certain Lease Agreement with respect to the Bayside Specialty Center, Retail Parcel, which the parties hereto amended and restated inits entirety by execution of an Amended and Restated Lease Agreement dated October 15, 1985, as amended by a First Amendment dated August 19, 1986 and as amended by the Second Amendment dated November 24, 1987 thereinafter collectively referred to as "the Restated Lease'). The parties now desire to modify certain provisions of the Restated Lease related to transfer of partnership interests in Developer. In consideration of ten dollars ($10.00) paid by Developer to -City and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties agree as follows: 1. Amendment to Restated Lease. Section 5.8 is hereby amended by deleting the last sentence in its entirety and inserting the following in lieu thereof: "Notwithstanding the foregoing, in the case of a permitted Transfer of a limited partners interest under subparagraph (j) of Section 5.3. and a subsequent transfer back to a partner of Developer either as a result of a default by the transferring limited partner or the exercise of an option by the transferring limited partner requiring another partner of Developer to purchase its interest, then neither the Developer nor the purchasing partner shall be obligated to resell the limited partnerts interest to another Black American or Hispanic American or entity owned or controlled by a Black American or Hispanic American and the percentage set forth in the first sentence of this Section shall be automatically reduced by the percentage interest of the minority limited partner so transferred." 2. Effect of this Amendment. Except as is hereinabove set forth, the provisions of the Restated Lease shall hereafter remain in full force and effect, as if this Amendment had not been entered into. IN WITNESS WHEREOF, ROUSE-MIAMI, INC., the sole general partner of BAYSIDE CENTER LIMITED PARTNERSHIP, has caused this Third Amendment to Amended and Restated Lease Agreement to be signed in its name by its Vice President and its corporate seal to be hereunto affixed and duly attested by its Assistant Secretary, and the CITY COMMISSION OF MIAMI has caused this Third Amendment to Amended and Restated Lease Agreement to be signed in its name by Cesar H. Odio, the CITY MANAGER, and duly attested to by Natty Hirai, the CITY CLERK, on the day and year first hereinabove written. ATTEST: r RICHARD E. GALEN Assistant Secretary [CORPORATE SEAL] BAYSIDE CENTER LIMITED PARTNERSHIP, A Maryland Limited Partnership By: ROUSE-MIAMI, INC., A Maryland Corporation, Genera Pa By: AUL I. LA'i 'A, JR. Vice -President ,�ci rri -2- ATTEST: 171. MATTY HIRAI, City Clerk APPROVED AS TO FORM AND CORRECTNESS: f?;.Q City At O ► e erg'," S'A THE CITY OF MIAMI, A Municipal Corporation othe State of Florida By: CESAR H. ODIO, City Manager STATE OF ier'"'`,( COUNTY OF )ss. I, an officer authorized to take acknowledgments, HEREBY CERTIFY that on this 5 ay of , 1993, pgrs 1ally� p e� before me 1� �� di. and , kn wn to me to be''t e Vice President and ssistant Secretary, respectively, of ROUSE-MIAMI, INC., a Maryland corporation, known to me to be the general partner of Bayside Center Limited Partnership, a Maryland limited partnership, and known to me to be the persons who executed the foregoing instrument, and they severally acknowledged the execution thereof as the free and formal act of the said corporation as the sole general partner of such Partnership. WITNESS my hand and official seal in said County and State the day and year last aforesaid. State My Commission Expires:.5h//97 77 STATE OF ) ss. COUNTY Off_ of Maryland I, an officer a�uJ�,h.orized . tak acknowledgments, HEREBY /' CERTIFY that on this fay of ,. 1993, p ri nally appeared before me w ,rc ,? ,bia and , known to e to be the City Manager and themetty Clerk, respectively, of THE CITY OF MIAMI, a municipal corporation in and under the laws of the State of Florida, and -known to me to be the persons who executed the foregoing instrument, and they severally acknowledged the execution thereof as the free and formal act of the said municipal corporation. WITNESS my hand and official seal in sai County and State the day and year aforesaid. My Commission Expires: NOTARY PUBLIC STATE OF ►LORIDA 11 Nx COtllSS1ON EXP. APR.26:13jt_ BONDED TUC GENERAL INS. U20. Notary Public, State of Florida ,---77/...42.; 4? ea.? COJrSENT CONNECTICUT GENERAL LIFE INSURANCE COMPANY, Mortgagee under that certain Mortgage, Consolidation, Modification and Extension Agreement dated December 4, 1987 and recorded in the Official Record Book 13498 at page 670 in the Land Records of Dade County, Florida, does hereby consent to the foregoing Third Amendment to the Amended and Restated Lease Agreement and agrees to be bound thereby. CONNECTICUT GENERAL LIFE INSURANCE COMPANY By: CIGNA INVESTMENTS, INC. By: Name: Title: 1777 T, an officer authorized to take acknowledgments, HEREBY CERTIFY that on this ILl day of 4)fl:E9 , 1993, personally appeared before me , known to me to be the of CIGNA Investments, Inc., an authorized agent for CONNECTICUT GENERAL LIFE INSURANCE COMPANY and known to me to be the person who executed the above consent to the foregoing instrument, and he/she acknowledged the execution thereof as the free and formal act of the said corporation. WITNESS my hand and official seal in said County and State the day and year last aforesaid. My Commission Expires: Notary' Public State of 0 1neC4- ce County of (( t �- -� ( i r( JEANNENE M. WHITCOMB ,VOTARY PUBLIC MY GOih183SION EAVES SEPt 314 ist? -5-