HomeMy WebLinkAboutBack-Up DocumentsFIFTH AMENDMENT TO AMENDED AND RESTATED LEASE AGREEMENT
(RETAIL PARCEL)
This Fifth Amendment to Amended and Restated Lease Agreement (Retail Parcel) (this
"Amendment") is made and entered into this day of , 2019 ("Effective
Date"), by and between the CITY OF MIAMI, a municipal corporation of the State of Florida
("Lily") and BAYSIDE MARKETPLACE, LLC, a Delaware limited liability company, successor
by merger to Bayside Center Limited Partnership ("Developer").
WITNESSETH:
WHEREAS, City and Developer are the current landlord and tenant, respectively, under
that certain Amended and Restated Lease Agreement dated as of October 15, 1985, as amended by
that certain First Amendment to Amended and Restated Lease Agreement dated as of August 19,
1986, as further amended by that certain Second Amendment to Amended and Restated Lease
Agreement dated as of November 24, 1987, as further amended by that certain Third Amendment
to Amended and Restated Lease Agreement dated as of April 15, 1993 as further amended by that
certain Release and Settlement Agreement dated as of December 30, 2008 and as further amended
by that certain Fourth Amendment to Amended and Restated Lease Agreement dated September
24a', 2014 (collectively and together with any attachments, exhibits or riders thereto, the "Lease")
for certain premises located at Bayside Marketplace in Miami, Florida, as more particularly
described in the Lease (the "Leased Property"). A memorandum of the Lease was recorded in
Book 12684, at Page 157, and supplemented in Book 13492, at Page 3199, both of the Public
Records of Miami -Dade County, Florida; and
WHEREAS, City and Developer desire to modify certain provisions of the Lease, on the
terms and conditions set forth herein, and subject to approval from the Miami City Commission.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, City and Developer
hereby agree that the foregoing recitals are true and correct, and further agree as follows:
1. Definitions
All capitalized terms used in this Amendment shall have the definitions ascribed to such
terms in the Lease, unless defined or amended in this Amendment. The term "Lease" shall refer to
the Lease (as defined in the first recital above), as modified by this Amendment. The term "Lease
Term" shall refer to the Original Term (as modified in this Amendment) and any applicable
Renewal Terms.
2. Section 2.1(a) Premises
The following paragraph is added to the end of Section 2.1(a):
19-1466 / October 3, 2019
Notwithstanding the foregoing, Developer is authorized to erect a temporary
ferris wheel (the "Ferris Wheel") located in the area depicted on the sketch and
legal description attached as Exhibit "L" hereto. The Ferris Wheel shall be
limited to a maximum height not to exceed one hundred ninety (190) feet above
grade, with such minor exceptions as the City Manager may approve in writing.
Approval of the Ferris Wheel is subject to the Developer's compliance with
applicable land development regulations and permits. No other height increase
is approved. The City expressly reserves all air rights.
3. Section 2.5 Rental.
Section 2.5(a) of the Lease is amended as follows:
(a) Amount of Rental. Developer covenants that it shall pay to City as
Rental for the Leased Property, the following rents: Minimum Base Rental, Percentage Rent,
and to the extent applicable, Tower Rent and Ferris Wheel Rent, all as are defined below.
Developer shall pay the Rental amounts to the City of Miami, Department of Real Estate and
Asset Management at the address noted below:
I
City of Miami
Department of Real Estate and Asset Management
Attention: Lease Manager
444 SW 2nd Avenue, 3 d Floor
Miami, FL 33130-1910
Section 2.5(i) is hereby added to the Lease as follows:
(i) Ferris Wheel Rent. Commencing on the Effective Date of this
Amendment, Developer shall pay to the City 12% of all revenues received from the operation
of the Ferris Wheel, with no reductions whatsoever ("Ferris Wheel Rent"). Revenues
received from the Ferris Wheel will not count towards the calculation of Percentage Rent and
do not have a breakpoint. Ferris Wheel Rent will be paid to the City on or before the 15th of
each month for any revenues received the month prior from the operator of the Ferris Wheel
along with copies of any and all checks received as payment from the Ferris Wheel operator.
Should the Developer decide to operate the Ferris Wheel without the use of a third party,
Developer shall pay the City 12% of all revenues received from the operation of the Ferris
Wheel and shall submit a statement of gross sales, in a form acceptable to the City, which
shall be certified by the General Manager of the Leased Property or an officer of the
Developer within the same time frame set forth above.
4. Notices.
Wherever any notice is required or permitted under the Lease, such notice shall be in
writing. Any notice or document required or permitted to be delivered under the Lease shall be
19-1466 / October 3, 2019
deemed to be delivered when it is actually received by the designated addressee or, if earlier and
regardless of whether actually received or not, when it is either (i) deposited in the United States
mail, postage prepaid, certified mail, return receipt requested, or (ii) delivered to the custody of a
reputable messenger service or overnight courier service, addressed to the applicable party to
whom it is being delivered at the respective address for such party as is set out below, or at such
other address as such applicable party may have theretofore specified to the delivering party by
written notice:
If to City at:
City of Miami
444 SW 2nd Avenue, 10th Floor
Miami, FL 33130-1910
Attention: City Manager
with a copy to:
City of Miami
444 SW 2nd Avenue, 3rd Floor
Miami, FL 33130-1910
Attention: DREAM Director
4. Miscellaneous.
If to Developer at:
Bayside Marketplace, LLC
c/o General Growth Properties, Inc.
110 North Wacker Drive
Chicago, IL 60606
Attention: Chief Legal Officer
with a copy to:
Bayside Marketplace, LLC
c/o General Growth Properties, Inc.
1245 Worcester Street
Suite 1218
Natick, MA 01760
Attention: John Charters
(a) Each of City and Developer hereby acknowledges and agrees that neither is
presently aware of any continuing defaults by reason of any act or omission on the part of the other
parry under the Lease and that as of the date of execution each party has fulfilled all of its duties
and obligations under the Lease to date.
(b) This Amendment shall be construed and governed in accordance with the laws of
the State of Florida. Venue in any actions or proceedings between the parties shall be in Miami -
Dade County, Florida. In order to expedite such actions or proceedings the parties knowingly and
voluntarily waive their right to a jury trial in any such actions or proceedings. Developer and City
each agree to pay their own attorneys' fees in connection with any such actions or proceedings.
(c) This Amendment may be executed in any number of counterparts and by the
separate parties hereto in separate counterparts, each of which shall be deemed an original, but all
of which shall constitute one and the same instrument.
(d) Each party hereby represents and warrants to the other party that (i) it has the full
right and authority to enter into this Amendment, and (ii) this Amendment is a binding and valid
document enforceable in accordance with its terms.
19-1466 / October 3, 2019
(e) This Amendment shall be deemed a part of, but shall take precedence over and
supersede any provisions to the contrary contained in the Lease. Except as modified hereby, all of
the provisions of the Lease, which are not in conflict with the terms of this Amendment, shall
remain in full force and effect, and, as modified hereby, the Lease is hereby ratified and confirmed
in all respects.
(f) This Amendment shall be binding upon the parties hereto and their respective
successors and permitted assigns.
(g) At the request of Developer, City agrees to enter into a memorandum of this
Amendment to be placed of record in the Public Records of Miami -Dade County in such form as
Developer and City shall mutually agree. Developer shall be responsible for all recording costs
with respect to such memorandum.
(h) The terms "business day" or "business days", as used herein, shall mean,
individually or collectively, as the case may be, each calendar day of the week other than Saturday,
Sunday and any nationally recognized legal holidays.
[Remainder of Page Left Blank Intentionally]
hL 1
19-1466 / October 3, 2019
pq
IN WITNESS WHEREOF, the parties have executed this Amendment as of the Effective
Date.
ATTEST:
Todd B. Hannon
City Clerk
APPROVED AS TO LEGAL FORM
AND CORRECTNESS:
Victoria Mendez
City Attorney
APPROVED AS TO BUSINESS TERMS
By:
Daniel Rotenberg, Director, Department of
Real Estate and Asset Management
STATE OF FLORIDA )
) SS.:
COUNTYOF MIAMI-DADE )
CITY OF MIAMI, a municipal corporation of
the State of Florida
By:
Emilio T. Gonzalez, Ph.D.
City Manager
APPROVED AS TO INSURANCE
REQUIREMENTS
By:
Ann -Marie Sharpe
Director of Risk Management
The foregoing instrument was acknowledged before me this day of
, 2019, by Emilio T. Gonzalez, the City Manager, and Todd B. Hannon, the
City Clerk, of the City of Miami, a Florida municipal corporation, in the capacity aforesaid; each
such person is personally known to me.
Sign Name:
Print Name:
My Commission Expires
19-1466 / October 3, 2019
Notary Public
[NOTARIAL SEAL]
WITNESSES:
Print Name:
Title:
Print Name:
Title:
STATE OF ILLINOIS )
) SS.:
COUNTY OF COOK )
BAYSIDE MARKETPLACE, LLC, a
Delaware limited liability company
By:
Print Name_
Title: 44
W
The foregoing instrument was acknowledged before me this day of
2019, by �' as of Bayside Marketplace, LLC, in the
capacity aforesaid; such person is personally known to me.
Sign Name:
Print Name:
My Commission Expires:
[NOTARIAL SEAL]
19-1466 / October 3, 2019
Notary Public
EXHIBIT L
SKETCH TO ACCOMPANY LEGAL DESCRIPTION
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The lead descrotim show" hereon wos bared an in WM0 ban Provk$--d by dient-
Ih,s sketch hos 6W propored for the erdbSile use of the entity or entities named h& -van only IN cert ficatron herein does
not extend to any W,ndrred parties
See greet 2 of 7 for Lepar Vescr(olion
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LAND SURVEYORS - ENGINEERS LAND PLANNERS
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lee( to a Paint; chance run South 00M,ft, KIF( for d destance, of 41.50 feet to o pokl; thavice ,vn AWIA 693149" West tar a
dt3fawa of 179.58 fast to o poi7l, thence run south 00*001" fast lar a oWance of 25.00 reef to a pant; thence run North
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parte' of Kind' thence an North 65'58'01° (First for a distance of 72681 feel to a pari f; thence run North 2417454" Fost to a
distance of 11t-05 feet to o pcw71; thence run South 65W101' East /or a distance of 72.68 tort to a pant (hevrce run South
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Said parte" of land containing 1%071 square fret, more ar less or. 0183 acres, mare or less
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2 rhe legal descrplfan shown hereon was based an Womwlian prowled by client
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LAND SURVEY:.,,.. LAND PLANNERS
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ORDER NO.. 209631 PARLCO UfvrlDER MY SLlmERr1$iUh:
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[AM, ,Aviv. s. ?ar9
SWET of SHEET{5% F.B.: MA UAnk STEVEN JOghSON. PFMCiFAL
t FLORARA PROK LAND SURVEYOR NO. 4775
IL % Y76+4Z%BAYW[*" MAOUtEr PLACE D2e01k BUWEY ]r is ZP13VSiitTCie L1-.aAL',1t+.YSunryi1Jk.'WSkKET"CE - MMTCH LEGAL- SKV41�i �^.t. jai i:ri•n::r.,r. r •.i. 7i`i 5 i E _,r
LEASE AGREEMENT
between
BAYSIDE CENTER LIMITED PARTNERSHIP
and
CITY OF MIAMI -
January 4, 1985
BAYSIDE SPECIALTY CENTER
PARKING GARAGE
' t
1
LEASE AGREEMENT
between
BAYSIDE CENTER LIMITED PARTNERSHIP
and
CITY OF MIAMI -
January 4, 1985
BAYSIDE SPECIALTY CENTER
PARKING GARAGE
MASE AGREEMENT
between
SAYSIDE CENTER LIMITED PARTNERSHIP
and
CITY OF MIAMI -
January 4, 2985
BAYSIDE SPECIALTY CENTER
PARKING GARAGE
TABLE OF CONTENTS
PAGE
ARTICLE
I - EXHIBITS AND DEFINITIONS
3
Section
I.I.
Exhibits . . . . . . . . . . . . . . . . . . . . .
3
Section
1.2.
Defined Terms . . . . . . . . . . . . . . . . . . .
3
ARTICLE
II -
GENERAL TERMS OF LEASE OF LEASED PROPERTY
15
Section
2.1.
Lease of Leased Property to Developer. . . . . . .
15
a. Premises . . . . . . . . . . . . . . . . . . .
16
b. Original Term . . . . . . . . . . . . . . . . .
16
c. Renewal Term . . . . . . . . . . . . . . . . .
16
d. Possession of Leased Property. . . . . . . . .
17
e. Conditions Precedent . • . . . . . . . • • .
18
f. Developer Obligations Prior to Possession. . .
20
Section
2.2.
Restrictive Covenants . . . . . . . . . . . . . . .
20
a. Use Prohibitions of the Leased Property. . . .
21
b. No Discrimination . . . . . . . . . . . . . . .
21
c. Permitted Uses for Leased Property . . . . . .
21
d. Use Prohibitions of the Park Site. . . . . . .
22
e. Enforceability . . . . . . . . . . . . . . . .
23
Section
2.3.
Easements . . . . . . . . . . . . . . . . . . . . .
23
a. Existing Easements . . . . . . . . . . . . . .
23
b. Easements Granted to Developer . . . . . . . .
23
c. Limitations on Easements Rights. . . . . . . .
25
d.. Duration of Easements . . . . . . . . . . . . .
27
e. Confirmatory Instruments . . . . . . . . . . .
27
Section
2.4.
Title of Leased Property . . . . . . . . . . . .
28
Section
2.5.
Rental . . . . . . . . . . . . . . . . . . . . . .
28
a. Rentals Payable. • . . . . • . • • • • • .
28
b. Continuous Operation . . . . . . . . . . . . .
28
c. Refinancing Proceeds . . . . . . . . • • • • •
29
d. Payment of Rental . . . . . . . . . . . . . . .
30
e. Developer's Records . . . . . • • • • . • • .
31
Section
2.6.
Covenants for Payment of Public
Charges by Developer . . . . . . . . . . . . . .
33
Section
2.7.
Approvals and Consents . . . . . . . . . . . . . .
34
Section
2.8.
Security and Police Protection . . . . . . . . . .
35
Section
2.9.
� Condition of Leased Property . . . . . . . . . . .
35
Section
2.10.
Roadways and Utilities . . . . . . . . . . . . . .
36
Section
2.11.
Parking Rates . . . . . . . . . . . . . . . . . . .
36
ARTICLE
III -
DESIGN AND CONSTRUCTION
36
Section
3.1.
Improvements to be Designed by Developer . . . . .
36
( i )
TABLE OF CONTENTS
ARTICLE III - DESIGN AND CONSTRUCTION (con't.)
Section 3.2.
Section 3.3.
Section 3.4.
Section 3.5.
Section 3.6.
Section 3.1.
Section 3.8.
Section 3.9.
Section 3.10.
Section 3.11.
Section 3.12.
Section 3.13.
Section 3.14.
Section 3.15.
Preliminary Plan Submission Dates. . . . . . . . .
Construction Plans . . . . . . . . . . . . . . . .
Facilities to be Constructed . . . . . . .
Maintenance of Park Site and Leased Property .
Access . . . . . . . . . . . . . . . . . . . .
Construction Period . . . . . . . . . . . . . . . .
Progress of Construction . . . . . . . . . . . . .
Certificate of Final Completion. . . . . . . . . .
Connection to Utilities . . . . . . . . . . . . . .
Permits and Approvals . . . . . . . . . . . . . . .
Compliance with Law . . . . . . . . . . . . . . . .
Extension of Time Requirements . . . . . . . . . .
Alterations and Renovations. . . . . . . . . . . .
Art in Public Places . . . . . . . . . . . . . . .
ARTICLE IV - LAND USES
Section 4.1. Land Uses. . . . . . . . . . . . . . . . . .
Section 4.2. Character and Operation of Improvements. . . .
ARTICLE V - ANTI -SPECULATION; ASSIGNMENT
PAGE
39
40
43
43
43
44
44
45
46
46
48
48
48
49
49
49
49
49
Section
5.1.
Definitions. . . . .
49
Section
5.2.
Purposes of Restrictions on Transfer . . . . . . .
51
Section
5.3.
Transfers . . . . . . . . . . . . . . . . . . . . .
52
Section
5.4.
Notice of Transfer; Information as to Shareholders
54
Section
5.5.
Effectuation of Certain Permitted Transfers. . . .
55
Section
5.6.
Transfers of the City's Interests. . . . . . . . .
56
Section
5.7.
Minority Participation in Ownership. . . . . . . .
57
ARTICLE
VI -
MORTGAGEE FINANCING; RIGHTS OF MORTGAGEE
57
Section
6.1.
Leasehold Mortgage . . . . . . . . . . . . . . . .
57
Section
6.2.
No Waiver of Developer's Obligations
or City's Rights . . . . . . . . . . . . . . . .
67
TABLE OF CONTENTS
PAGE
ARTICLE VII - REMEDIES 67
Section
7.1.
Events of Default - Developer. . . . . . . . . . .
67
a. Failure - Payment of Money . . . . . .
67
b. Failure - Performance of Other Covenants, Etc.
67
Section
8.2.
c. Bankruptcy, etc . . . . . . . . . . . . . . . .
68
Section
7.2.
Remedies for Developer's Default . . . . . . . . .
69
Section
7.3.
Events of Default - City . . . . . . . . . . . . .
69
a. Events of Default . . . . . . . . . . . . . . .
69
b. Remedies for City's Default. . . . . . . . . .
70
Section
7.4.
Unavoidable Delay. . . . . . . . .
70
Section
7.5.
Obligations, Rights and Remedies Cumulative.
71
ARTICLE VIII - PROTECTION AGAINST MECHANICS' LIENS AND
OTHER CLAIMS, INDEMNIFICATION 72
Section
8.1.
Mechanics' Liens and Payments of Obligations . . .
72
a. Developer to Discharge Mechanics' Liens. . . .
72
b. Payment of Materialmen and Suppliers
73
Section
8.2.
Indemnity . . . . . . . . . . . . . . . . . . . . .
73
ARTICLE
IX -
INSURANCE
74
Section
9.1.
Insurance Coverage . . . . . . . . . . . . .
74
a. Property Insurance . . . . . . . . . . . . . .
74
b. Business Interruption Insurance. . . . . . . .
75
c. Automobile Liability Insurance . . . . . . .
75
d. Liability Insurance. . . . . . . . . . . . .
76
e. Garage Liability . . . . . . . . . . . . . . .
76
f. Garagekeepers Legal Liability. . . . . . . . .
76
g. Theft Coverage . . • . • • . . . • • • • • •
76
h. Workers' Compensation . . . . . . . . . . . . .
76
i. Flood Insurance.
76
j. Design Defect Excess Coverage. . . . . . . . .
76
k. Worker's Compensation. . . . . . . . . . .
77
1. Copies . . . . . . . . . . . . . . . . . . . .
77
Section
9.2.
Responsible Companies - Blanket
Insurance Permitted . . . . . . . . . . . . . . .
77
Section
9.3.
Named Insureds - Notice to City of Cancellation. .
78
Section
9.4.
City May Procure Insurance if Developer
Fails To Do So . . . . . . . . . . . . . . . . .
78
Section
9.5.
Insurance Does Not Waive Developer's Obligations
78
Section
9.6.
Loss or Damage Not to Terminate Rental
or this Agreement . . . . . . . . . . . . . . . .
79
Section
9.7.
Proof of Loss . . . . . . . . . . . . . . . . . . .
79
/. I
TABLE OF CONTENTS
ARTICLE IX - INSURANCE (con't.)
PAGE
Section 9.8. Property Insurance Proceeds. . . . . . . . . . . . 79
a. Authorized Payment . . . . . . . . . . . . . . 79
b. Disposition of Insurance Proceeds
for Reconstruction . . . . . . . 80
c. Lenders and Lender/Landlords May Have Benefit
of Insurance Fund for Reconstruction . . . . 81
Section 9.9. Covenant for Commencement and Completion
of Reconstruction.. . . 81
Section 9.10. Developer's Rights In the Event of Uninsured
Major Casualty . . . . . . . . . . . . . . . . 82
Section 9.11. Casualty to Bayside Specialty Center . . . . . . . 84
ARTICLE
X - CONDEMNATION
RIGHTS OF OCCUPANCY AND ACCESS; MAINTENANCE;
84
Section
10.1.
Entire Leased Property Taken by
Condemnation . . .
84
Section
10.2.
Partial Taking of Leased Property
by Condemnation.
86
Section
10.3.
Adjustment of Rent Upon Partial
Taking . . . . . .
87
Section
10.4.
Taking for Temporary Use or of
Leasehold Estate. .
88
Section
10.5.
Arbitration . . . . . . . . . .
. . . . . . . . . .
89
Section
10.6.
Bayside Specialty Center Taken
by
b. Developer's Records . . . . . . . . . . . . .
. 96
Condemnation . . . . . . . .
. . . . . . . . . .
91
ARTICLE
XI -
RIGHTS OF OCCUPANCY AND ACCESS; MAINTENANCE;
94
Section
12.1.
OWNERSHIP OF IMPROVEMENTS
92
Section
11.1.
Quiet Enjoyment . . . . . . . . . . . . . . . . . .
92
Section
11.2.
Waste . . . . . . . . . . . . . .
92
Section
11.3.
Maintenance and Operation of Improvements. . . . .
92
Section
11.4.
Ownership of Improvements During Lease . . . . . .
93
Section
11.5.
Surrender of Leased Property . . . . . . . . . . .
93
Section
11.6.
City and Developer to Join in Certain Actions. . .
94
ARTICLE
XII -
MISCELLANEOUS PROVISIONS
94
Section
12.1.
No Partnership or Joint Venture. . . . . . . .
. 94
Section
12.2.
Recording, Documentary Stamps. . . . . . . . . .
. 94
Section
12.3.
Florida and Local Laws Prevail . . . . . . . . .
. 95
Section
12.4.
Conflicts of Interest; City Representatives
Not Individually Liable . . . . . . . . . . . .
. 96
Section
12.5.
Notice . . . . . . . . . . . . . . . . . . . . .
. 96
a. Developer . . . . . . . . . . . . . . . . . .
. 96
b. Developer's Records . . . . . . . . . . . . .
. 96
c. City Manager . . . . . . . . . . . . . . . .
. 97
(iv)
TABLE OF CONTENTS
PAGE
ARTICLE XII - MISCELLANEOUS PROVISIONS (con't.)
Section
12.6.
Estoppel Certificates.
97
Section
12.7.
Provisions Not Merged with Deed. . . . . . .
. . . 98
Section
12.8.
Titles of Articles and Sections. . . . . . .
. . . 98
Section
12.9.
Counterparts . . . . . . . . . . . . . . . .
. . . 98
Section
12.10.
Successors and Assigns . . . . . . . . . . .
. . . 98
EXHIBITS
A-1 -
Survey
A-2 -
Plat
of Bayfront
Park
A-3 -
Site
Plan
B -
Legal
Description
of Garage Parcel
C -
Legal
Description
of Area B
D -
Construction
Schedule
E -
Form
of Guaranty
of The Rouse Company
F -
List
of Permitted
Encumbrances
G -
List
of Drawings
showing Easements and Utilities
H -
List
of Approved
Concept Plans
604F/22A
7420r
- v -
LEASE AGREEMENT
1� January, 1985
THIS LEASE AGREEMENT, made this �,`� day of 6erembrr,--1984, 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.
STATEMENT OF BACKGROUND AND PURPOSE
The City is owner, in fee simple, subject to certain rights of others,
of all that certain land located between Port Boulevard, Biscayne Boulevard,
Chopi n P 1 aza and Bi scayne Bay 1 n the Ci ty of Mi ami , County of Dade, State of
Florida, which is collectively referred to herein as "Bayfront Park". Bayfront
Park is shown on the Plat attached hereto as Exhibit A-2. The City desires to
lease to Developer that portion of Bayfront Park more particularly shown and
designated as "Garage Parcel" on Exhibit A -i hereto to enable Developer to
construct and operate a 1200 car parking garage on the Garage Parcel (the
"Parking Garage") as shown on Exhibits A-1 and A-3.
The City is also the owner, in fee simple, of all that certain land,
located immediately north of Bayfront Park and underneath and contiguous to
the Port Boulevard Bridge in the City of Miami, County of Dade, State of
Florida shown as Area 6 on Exhibit A-1. The City intends to grant an easement
on a portion of such land to Dade County for the construction of a new Port
Boulevard Bridge. The area which remains available for use as the off-street
parking for the purpose of this Agreement shall be known as "Area B". The
City desires to lease Area B to Developer to enable Developer to construct an
off-street parking surface lot ("Area B Surface Lot").
The Parking Garage and Area B Surface Lot are intended to accommodate
parking needs for members of the general public visiting Bayfront Park, down-
town Miami and the Bayside Specialty Center (hereinafter defined) thereby
eliminating traffic congestion, improving access and egress and aiding in the
redevelopment of downtown Miami.
The City has on even date entered into a ground lease (the "Retail
Area Ground Lease") with Developer with respect to a portion of the Bayfront
Park adjacent to the Leased Property upon which Developer has agreed to
construct the Bayside Specialty Center (as defined in the Retail Area Ground
Lease).
It is the mutual desire of the parties that the Garge Parcel and Area
B be leased and demised by the City to Developer for the purposes set forth
herein, 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 Parking Garage and Area B Surface Lot 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 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.
- 2 -
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 -
Plat of Bayfront
Park
Exhibit
A-3 -
Site Plan
Exhibit
B -
Legal Description
of Garage Parcel
Exhibit
C -
Legal Description
of Area B
Exhibit
D -
Construction Schedule
Exhibit
E -
Form of Guaranty
of The Rouse Company
Exhibit
F -
List of Permitted
Encumbrances
Exhibit G - List of Drawings showing Easements and Utilities
Exhibit H - List of Approved Concept Plans
Section 1.2 Defined Terms. As used herein the term:
"Acceptable Operator" means an entity experienced in parking garage
management possessing the qualifications, good reputation, financial resources
and adequate personnel necessary for the proper performance of all of Devel-
oper's obligations under this Lease in a manner consonant with the quality,
reputation and economic viability of the Leased Property and Improvements.
- 3 -
"Acceptable Operator's Agreement" has the meaning ascribed to it in
subclause (iv) of Section 6.1(c).
"Acceptable Purchaser" has the meaning ascribed to it in Section
5.3(d).
"Additional Design Costs" has the meaning ascribed to it in Section
3.1.
"Additional Initial Costs" has the meaning ascribed to it in Section
3.1.
"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.
"Annual Basic Rental" has the meaning ascribed to it in subclause (i)
of Section 2.5(a).
"Annual Additional Rental" has the meaning ascribed to it in subclause
(i) of Section 2.5(a).
"Annual Percentage 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 B" has the meaning ascribed to it in the Statement of
Background and Purpose.
"Area B Surface Lot" 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
- 4 -
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.
"Capital Improvements" means (a) any addition to the Parking Garage
or the construction of any additional portion of the Parking Garage or other
construction in, upon or constituting part of the Garage Parcel (i) occurring
subsequent to the date on which the Parking Garage 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 and (b) any addition to or replacement of the
Area B Surface Lot or other construction in, upon or constituting part of Area
B (i) occurring subsequent to the date on which the Area B Surface Lot 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.
— 5 —
"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.
"the City Manaqer" has the meaning ascribed to it in the opening
paragraph of this Agreement.
"City Storm Sewer Easement" has the meaning ascribed to it in Section
2.3(a).
"Completion Date" means that date on which the City Manager is
required to issue the Certificate of Final Completion pursuant to Section 3.9
hereof.
"Construction Plans" has the meaning ascribed to it in Section 3.3.
"County Easement" has the meaning ascribed to it in subclause (i) of
Section 2.3(a).
"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 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 Improvements to
the holder of any Leasehold Mortgage (or the nominee of any such holder) by
deed in lieu of foreclosure, or in the event of the termination of any lease
or sublease arising out of a Sale-Subleaseback Transaction of such estate, the
term "Debt Service Payments" shall thereafter include all principal and
interest, rental and other sums and amounts which would have become payable
- 6 -
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.
"Default Rate" has the meaning ascribed to it in subclause (d) of
Section 2.5.
"Developer" has the meaning. ascribed to it in the opening paragraph
of this Agreement.
"Development Costs" means an amount, provided in reasonable detail to
the City by an executive officer of the general partner of Developer satisfac-
tory 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 Parking Garage and Area B Surface Lot including (without limitation or
duplication):
( 1 ) Design, planning, architectural and engineering fees, costs
and expenses (including, without limitation, Additional Design Costs);
presentation costs and expenses; surveys and geotechnic tests; testing and
inspections; and garage consulting costs;
(2) The cost of labor, equipment, supplies, materials and
services paid to contractors and subcontractors utilized in connection
with construction of the Parking Garage and Area B Surface Lot;
(3) Fees and expenses paid to contractors and subcontractors;
(4) Legal and accounting costs, fees and expenses;
(5) Interest and other financing costs incurred with respect to
the issuance and sale by the City of industrial development bonds pursuant
to the Ch. 159, Florida Statutes, including all required reserve accounts
and funds; interest, commitment fees, points and other financing costs
- 7 -
incurred in arm's length transactions; and interest on money borrowed by
Developer from its parent, an affiliated entity or subsidiaries in
connection with the development of the Parking Garage and Area B Surface
Lot at a cost not greater than the borrowing cost incurred by such parent,
affiliate or subsidiary;
(6) The cost of property, liability, worker's compensation,
title and other insurance;
(7) The cost of obtaining permits and licenses, and all Public
Charges hereinafter defined;
(8) Utility relocation costs and expenses and tap—in fees or
other fees for connection to utility systems and utility services during
construction;
(9) All reasonable and prudent costs and expenses incurred in
connection with the negotiations and execution of this Agreement;
(10) The cost of initially furnishing and equipping the
management offices at the Parking Garage;
(11) The allocable portion of the cost of providing, furnishing,
equipping and operating a field office at or near the Leased Property
during construction of the Parking Garage and Area B Surface Lot, including
(without limitation) the costs of construction trailers or other temporary
office structures, barges and other vessels, automobiles, office furniture,
equipment, supplies, telephone, stationery, postage and duplication;
(12) The allocable portion of the salaries, fringe benefits,
payroll taxes, travel and other expenses, and costs of all field office
personnel employed in connection with the Parking Garage and Area B
Surface Lot;
W -M
(13) The allocable cost of pre -opening management, advertising
and publicity and the allocable cost of any opening event or celebration
including advertising and publicity of same;
(14) The allocable portion of the central office overhead cost
of The Rouse Company or any affiliate related thereto with respect to the
development of the Parking Garage and Area B Surface Lot;
(15) The cost of supervising and coordinating construction of
the Parking Garage and Area B Surface Lot ("Construction Management Fee");
(16) Additional Initial Costs; and
(17) Other reasonable costs and expenses which are of a type
usually and customarily incurred in connection with development of a
Parking Garage and Area B Surface Lot.
"Developer Equity Investment" means the sum of (i) Development Cost,
(ii) an amount equal from time to time to any unrecouped and unfinanced cost
of Capital Improvements made and paid for by Developer after initial construc-
tion of the Developer Improvements, and (iii) Operating Losses (except to the
extent recouped under Section 2.5a(3)) less (iv) the net proceeds actually
received by Developer from any and all Leasehold Mortgages or Sale -Leaseback
Transactions of the Developer's estate in the Leased Property and the
Improvements.
"Developer Utility Easement" has the meaning ascribed to it in the
subclause (i) of Section 2.30).
"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.
"Expansion Levels" has the meaning ascribed to it in Section 3.1.
"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
therefore in an arm's length transaction.
"Final Sub -Structure 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"
"Garage Parcel" has the meaning ascribed to it in the Statement of
Background and Purpose.
2.2(c).
"Grand Prix Agreement" has the meaning ascribed to it in Section
"Improvements" shall mean all existing and future structures at the
Leased Property, including, but not limited to, the Parking Garage and Area 6
Surface Lot.
"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).
"Leased Property" has the meaning ascribed to it in Section 2.1.
"Leasehold Mortgage" has the meaning ascribed to it in Section 6.1.
"Lender" shall have the meaning ascribed to it in subclause (b) of
Section 6.1.
"Lender/Landlord" means a lender, and any successor, assignee,
transferee or designee of such lender, to which, in connection with the
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.
"Management Costs" means (without duplication) Developer's reasonable
and prudent costs of performing management services for the Leased Property,
which services shall include the following: (i) supervision of the performance
of all of Developer's obligation under this Lease and retention of a profes-
sional management entity acceptable to the City for the operation and manage-
ment of the Parking Garage and Area B Surface Lot; (ii) formulation of all
budgets for operation of the Leased Property; (iii) 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 Leased
Property, and supervision of the payment of all obligations related to the
operation of the Leased Property; (iv) development of programs for the promo-
tion of the Leased Property (including advertising and publicity programs);
(v) management of the Leased Property, 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 (vi) all reasonable on-site costs and expenses
relating to on-site managers, assistant managers, marketing directors and
bookkeepers, incidental out-of-pocket costs (including but not limited to
office supplies, telephone, stationery, postage and duplication), market
research and analysis and consumer surveys, legal and other proceedings
involving Public Charges, outside CPA audits relating to the Leased Property,
pians for minor alteration of the Leased Property, proceedings relating to
condemnation or eminent domain, and legal and other costs of extraordinary
legal proceedings concerning the Leased Property, all whether performed by
on-site personnel or independent third parties.
"Negative Cash Flow" means the sum of Operating Losses for any given
period plus Debt Service Payments for the same period.
"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 (10X) 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.
"Opening Date" means the earlier of (1) the date upon which the
Parking Garage is open for business with the general public, or (2) the
thirtieth day following issuance of the Certificate of Final Completion.
"Operating Expenses" means (without duplication) (1) all reasonable
and prudent expenditures for the Improvements 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, management fees, business
taxes and Public Charges, supplies, license and permit fees, repair and
maintenance expenses, costs and expenses of cleaning, maintaining and
repairing the common area and Leased Property, utility charges, insurance
- 12 -
premiums, auditing and professional fees and expenses, publicity costs and
expenses, and (2) annual Rental. In no event shall depreciation constitute a
portion of Operating Expenses.
"Operating Income" means all moneys, paid or payable to Developer for
parking related transactions made and for services rendered by Developer in
the operation of the Improvements regardless of when or where the services are
rendered, whether on a cash or preauthorized credit basis, including (without
limitation) all parking rates and fees, all income derived from vending
machines, telephones, pay toilets or other sources located on the Leased
Property, however, any sales taxes imposed by law directly paid by Developer
or the City to a taxing authority, and any discounts and allowances as provided
by procedures accepted and approved by the City and Developer, shall be ex-
cluded therefrom. Moneys payable shall also include, but shall not be limited
to, any and all cashier shortages, overages, and undercharges. Dishonored
checks and uncollectible credit card charges shall not be included in Gross
Revenues, provided that such check and credit card transactions were processed
utilizing sound business procedures. If Developer shall receive insurance or
condemnation proceeds or awards, the amount thereof which represents reim-
bursement to Developer for items accounted for as Operating Expenses shall be
deemed to be Operating Income.
"Operating Losses" means the amount by which Operating Income for the
applicable period is less than Operating Expenses plus Debt Service for the
same period.
"Original Term" has the meaning ascribed to it in clause (b) of
Section 2.1.
"Owner" has the meaning ascribed to it in Section 5.1.
- 13 -
"Owner whose shares are publicly traded" has the meaning ascribed to
it in Section 5.1.
"Park Site" means the area comprising the Bayfront Park but excluding
the Leased Property and the Retail Parcel, all as shown on Exhibit A-2.
"Parking Garage" has the meaning ascribed to it in the Statement of
Background and Purpose.
"Parking Rates" means the fees and rates charged by Developer to
users of the Improvements.
"Possession Date" has the meaning ascribed to it in Section 2.1.
"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.
" Ref inancinq Proceeds" means the net proceeds available to Developer
out of any Refinancing after deduction of (i) an amount equal to Developer's
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 (iii) all costs and expenses associated
with the negotiation and closing or consummation of such Refinancing.
"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 D attached hereto, subject to extensions or
- 14 -
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 on January 1 and ending on December 31
of each year of this Lease. The first Rental Year during the term of this
Lease shall commence on the Opening Date and end 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.
"Retail Area Ground Lease" has the meaning ascribed to it in the
Statement of Background and Purpose.
"Retail Parcel" means that certain land demised by the City to
Developer under the Retail Ground Lease.
"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 of a sublease ("Financing Sublease") between
Lender/Landord and Developer.
"Section" "subsection" n "
paragraphn n subparagraph "clause", or
"subclause" followed by a number or letter means the section, subsection,
paragraph, subparagraph, clause or subclause of this Agreement so designated.
"Transfer" has the meaning ascribed to it in Section 5.1.
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
- 15 -
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
Developer takes and hires from the City, the Garage Parcel shown on Exhibit
A-1 and more particularly described in the legal description attached hereto
as Exhibit 8 and Area 8 shown on Exhibit A-1 and more particularly described
In the legal description attached hereto as Exhibit C, together with the
buildings, structures, improvements 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 and C to this Lease shall be amended accordingly.
(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
Date, the City Manager and Developer, upon request of either party, shall
execute one or more written memoranda in such form as will enable them to be
recorded among the Land Records of Dade County setting forth the beginning and
termination dates of the Original Term, determined in accordance with this
Agreement.
(c) Renewal Term. Developer is granted an option to renew this Lease
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 (b) 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 Leased Property to Developer, and Developer shall take
possession thereof within thirty (30) days after the following shall have
occurred:
(i) The City Manager shall have approved the Preliminary Plans
for the Improvements to be constructed on the Leased Property;
(ii) The City Manager shall have received and approved evidence
reasonably satisfactory to the City Manager that Developer shall have
entered into final and binding arrangements for the financing of
Development Costs with a Leasehold Mortgagee or Lender/Landlord;
(iii) The City Manager shall have received a guarantee in form
attached hereto as Exhibit E from The Rouse Company (a Maryland corpo-
ration) 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 Improvements to be constructed in Leased Property; and
- 17 -
(iv) All governmental permits and approvals required to commence
construction shall have been obtained by Developer.
(v) The City and Developer shall have entered into a mutually
acceptable agreement with respect to the Miamarina.
. The date that the City delivers possession of the Leased Property to
Developer in accordance with this paragraph (d), by notice in writing, is
herein called "Possession Date".
(e) 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 Preliminary Plans
for the Improvements;
(ii) Developer has obtained all governmental approvals and
permits necessary for construction of the Improvements;
(iii) Developer shall have obtained a commitment or commitments,
on terms and in form satisfactory to Developer, for the purchase of tax-
exempt revenue bonds or notes for construction and long term financing of
the Improvements;
(iv) Developer shall obtain satisfactory evidence that the
issuance of such tax exempt bonds or notes and the form of related docu-
ments have been validated and all applicable appeal periods have expired;
(v) The City Manager has approved all construction plans for
improvements to be constructed pursuant to the Retail Area Ground Lease
and the City Improvements (as the term is defined in the Retail Area
Ground Lease) on the Retail Parcel shall be substantially completed;
(vi) The City and Developer shall have entered into a mutually
acceptable agreement with respect to the Miamarina.
(vii) The Developer has obtained all governmental approvals and
permits necessary for construction of the improvements to be constructed
pursuant to the Retail Area Ground Lease;
(viii) The Developer shall have obtained a firm commitment or
commitments acceptable to Developer and the City for the construction and
permanent financing of the improvements to be constructed pursuant to the
Retail Area Ground Lease; and
(ix) The City shall have provided Developer with evidence
satisfactory to Developer that the development of the Parking Garage, the
Area 8 Surface Lot and Bayside Specialty Center will not violate the
Environmental Laws (hereinafter defined)..
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 shall have the right to terminate this Lease if all of the aforesaid
conditions precedent are not satisfied or waived on or before January i,
1988. Developer and the City shall use good faith efforts to satisfy all of
the aforesaid conditions precedent. It is agreed that notwithstanding the
City's agreement to use good faith efforts to satisfy the aforesaid conditions
precedent, it is agreed that 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 (ix) above except as specifically set forth in Section 3.11 hereof.
No waiver of any 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
- 19 -
satisfaction of all of such conditions precedent, it being agreed that any
waiver by Developer of any such condition precedent shall be effected only by
Developer's express written statement to that effect delivered to the City or
the City Manager.
(f) Developer Obliqations Prior to Possession. Notwithstanding
anything herein to the contrary, until possession of the Leased Property shall
have been delivered to Developer pursuant to the provisions of clause (e) of
this Section 2.1, Developer shall not be required to perform any of its
obligations hereunder with respect to any portion of the Leased Property as to
which possession shall not have been so delivered to the extent that such
possession shall be reasonably required for the performance of such obligation.
The City shall indemnify, hold harmless and defend Developer from and
against any and ail 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
contained 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 and the Improvements in a manner which is in the
best interests of both parties may from time to time require the confirmation,
clarification, amplification, or elaboration of this Agreement in order to
deal adequately with circumstances which may not now be foreseen or anticipated
='•(=
by the parties. The parties reserve unto themselves the right to enter into
such interpretive, implementing or confirmatory agreements from time to time
as they may deem necessary or desirable for any such purpose without obtaining
the consent or approval of any person or entity not a party to this 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 any unlawful or illegal business, use or
purpose, or for any business, use or purpose which is immoral or disreputable
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).
(b) No Discrimination. No covenant, agreement, lease, conveyance or
other instrument shall be effected or executed by Developer, or any of its
successors or assigns, whereby the Leased Property or any portion thereof is
restricted by Developer, or any successor in interest, upon the basis of race,
color, religion, sex or national origin in the sale, lease, use or occupancy
thereof. Developer will comply with all applicable state and local laws, in
effect from 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
by Miami Motorsports, Inc. which may be permitted by the Developer and City
pursuant to the Grand Prix Agreement (as defined in the Retail Area Ground
Lease), the only uses permitted on the Leased Property are parking open to the
;general public and office (provided that such office uses shall be limited to
management offices ),�ina-T �',.' .: ; i } ; , �-� ' j) v i
- 21 -
(d) Use Prohibitions of the Park Site. The parties acknowledge and
agree that the Leased Property is adjacent to the Park Site and that, conse-
quently, the manner in which the Park Site is or may be used from time to time
will have a direct and material affect on the use and value of the Leased
Property 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, for itself, its successors and assigns, covenants and agrees with
Developer, its successors and assigns that:
(i) Except as may be otherwise permitted pursuant to the
Management Agreement dated June 4, 1981 between the City and New World
Marinas, Inc., with respect to the Miamarina, the City will not permit any
use of the Miamarina, the baywalk or the docks on the Park Site which
would detract from the use of the Leased Property;
(ii) The City will not, without first obtaining the written
consent of the Developer, (1) construct any fence or barrier between the
Park Site and the Leased Property, (2) make or permit substantial
alteration in the Park Site or permit any structure on the Park Site which
will substantially adversely affect the access to and from the Leased
Property, or (3) be inconsistent with the use of the Leased Property;
(iii) The City will not sell the Park Site 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;
(iv) Subject to certain rights of the City with respect to Area
A-4 and A-5 set forth in §2.1(a) of the Retail Lease, and except for any
temporary use 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
22 -
(v) The City will coordinate its ongoing planning and
implementation efforts relating to the construction of improvements to and
the use of the Park Site 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 use and
enjoyment of the Leased Property.
(e) Enforceability. It is intended and agreed hereby that the
restrictive covenants contained in this Section 2.2 shall be binding upon the
City and the Developer, their successors and assigns, and are covenants running
with the land and binding upon the successors in interest of the City and
Developer respectively, as the case may be, and shall be for the benefit and
in favor of, and enforceable by, the City and 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 respectively shall have title to the
Leased Property, the Park Site or any part of either.
Section 2.3 Easements. The following easements presently exist or
are hereby granted:
(a) Existinq Easements. The following easements presently exist:
(i) the easement for a 12 inch underground force main, more
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 F.
(b) Easements Granted to Developer. The City grants unto Developer,
its successors and assigns the following:
- 23
(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
therefore on the approved Construction Plans or in such other locations as
may be approved by the City Manager from time to time;
(ii) the non-exclusive right and easement (the "Developer
Vehicular Access Easement") for the unobstructed access for users of the
Improvements, and for service and emergency vehicles (A) to and from the
Leased Property to Biscayne Boulevard, (B) over and across Port Boulevard
to Biscayne Boulevard and over and (C) across the Park Site and the Retail
Parcel to Biscayne Boulevard (as Port Boulevard and Biscayne Boulevard are
now and hereafter constructed), in the locations shown therefore 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 immedi-
ately adjacent to the Leased Property, Park Site, or the Retail Parcel the
area of land and improvements permitted to be used as the Developer Access
Easement Area shall include any strips of land separating Port Boulevard
or Biscayne Boulevard from either the Leased Property, or Park Site, or
Retail Parcel;
(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 including
(without limitation) events permitted pursuant to the Grand Prix
Agreement, for the unobstructed pedestrian access to and from the Leased
Property by Developer to all of the Park Site now and hereafter existing
- 24 -
including, but not limited to the baywalks, sidewalks, playgrounds and
other open spaces.
(iv) the right and easement to install and maintain such
footings and underground supports along the boundaries of the Leased
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; and
(v) 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 Parking Garage and Area 6 S"fa*iL-Lot-4
It is the intent of this Agreement that all Improvements be confined
to the limits of the Leased Property.
(c) Limitations on Easement Rights. The rights and easements
granted or reserved in paragraphs (a) and (b) of this Section 2.3 shall be
limited as follows:
(1) with respect to the County Easement and the Developer
Utility Easement, except to the extent shown on the approved Construction
Plans, no building or other structure shall be erected on the surface of
same without the prior written consent of the Dade County Water and Sewer
Authority, except that Developer may place or construct street furniture,
kiosks, or other removable structures in any such area on the Leased
Property, provided Developer shall promptly remove the 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 Improvements, Developer will use its diligent efforts to cluster
underground utility lines and to minimize other construction below the
surface of the easement area;
- 25 -
(2) With respect to the portion of the City Storm Sewer Easement
area which may lie directly beneath the Parking Garage, 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 Leased Property affected thereby.
(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 to unreasonably interfere with the use and
enjoyment of the servient tenement, and, except in the case of the County
Easement, in carrying on such activities, will do so in such a manner as
not to unreasonably interfere with business or businesses then being
conducted in the Improvements or on the Leased Property by Developer.
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 (64) 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;
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(5) promptly upon the completion of any such construction,
repair or maintenance activity, the party having the benefit of such
easement shall, at its expense, restore the surface of the easement area
as nearly as possible to its former condition and appearance;
(6) Developer and City agree to enter into an easement
agreement governing the use, maintenance, repair and replacement of the
City Storm Sewer Easement, and any other utility easement area which may
be located under the Improvements within a reasonable time from the date
of this Lease in order 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 G is a survey showing all easements and utilities
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 and for each
Renewal Term and the term of any new lease made pursuant to Sections 6.1 and
6.2 hereof.
(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
- 27 -
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 or other
restrictions except for those listed in Exhibit F.
Section 2.5 Rental.
(a) Rentals Payable. During each Rental Year during the Original
Term and each Renewal Term hereof, Developer covenants and agrees to pay the
City annually as rental ("Rental") for the Leased Property, the following:
(1) the annual sum of Ten Thousand Dollars ($10,000) ("Annual
Basic Rental"),
(2) to the extent there is Net Income Available for Distri-
bution, the annual sum of Eighty Thousand Dollars ($80,000) ("Annual Additional
Rental"), and
(3) Fifty percent (50X) of the remaining Net Income Available
for Distribution, if any, after payment of the Annual Basic Rental, Annual
Additional Rental, and after Developer has been reimbursed up to Ninety
Thousand Dollars ($90,000) for Negative Cash Flow previously paid by
Developer ("Annual Percentage Rental").
(b) Continuous Operation. Developer covenants and agrees, subject
to the Grand Prix Agreement, to cause the Parking Garage and--Area--B S-urfac-e
-i.-o-t-to be continuously operated consistent with prudent business practices and
the standards of operation set forth in Section 4.2 hereof (considering twelve
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(12) month use) in order to achieve a reasonable level of profitability. In
connection therewith, Developer covenants and agrees that from and after the
Opening Date, Developer shall keep the Parking Garage a-nd- Ar.ea--B-Surface Lot
open for business with the general public at least three -hundred sixty (3 60)
days a year. Developer agrees that, at all times during the Original Term or
any Renewal Term, Developer shall not operate the Parking Garage or--th-e--A T- B
--Wrf-a�1: t for its own account but shall retain an Acceptable Operator to
operate the same. The City acknowledges that an Acceptable Operator would
include any parking garage manager which operates a parking system of at least
10,000 parking spaces in Dade County on a not-for-profit basis, and Developer
agrees to initially retain such Acceptable Operator; provided, however, if
such Acceptable Operator is not available or if such Acceptable Operator is in
default of its management agreement with Developer, Developer may retain
another Acceptable Operator. The parties acknowledge that the Developer is
not as of the date of this Agreement qualified as an Acceptable Operator, but
nothing in the provisions of this Lease shall prohibit the Developer from
qualifying as an Acceptable Operator. If this Lease should be transferred to
an Acceptable Operator or an Acceptable Purchaser pursuant to Article VI
hereof, the provisions of this Section 2.5(b) shall apply in equal force and
affect as such parties after such transfer.
(c) Refinancing Proceeds. In the event that Developer proposes to
engage in any Refinancing with respect to the Leased Property 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 trans-
actions 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
- 29 -
Available for Distribution for three (3) full Rental Years next following
consummation 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:
(1) to participate in such Refinancing, in which case Developer
shall pay or cause to be paid to the City, upon consummation of such
Refinancing, an amount equal to fifty percent (50x) of the Refinancing
Proceeds 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 (1) no
portion of such Refinancing Proceeds shall be payable to the City and
Rental with respect to such portion of the Leased Property that is refi-
nanced 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 Leased Property 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 (Z) 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.
(d) Payment of Rental. Rental shall commence to accrue on the Rent
Commencement Date. Rental shall be payable in equal monthly installments in
advance on the first day of each full calendar month following the Rent Com-
mencement Date during the term of this Lease, the first such payment to include
also any prorated Rental for the period from the Rent Commencement Date to the
- 30 -
first day of the full calendar month thereafter. 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. Any 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 Rental at the end of each Rental
Year shall be paid to Developer within thirty (30) days of receipt of such
report or, at the option of Developer, the Developer shall credit such amount
to the Rental due in the next Rental Year. If there is an underpayment of
annual Rental, Developer shall pay the City the amount of the deficiency
within thirty (30) days of the City's receipt of the report.
(e) Developer's Records. For the purpose of permitting verification
by the City of any amounts due on account of Rental, Developer wi l l keep and
preserve or cause the Acceptable Operator to keep and preserve for at least
three (3) years in Dade County, Florida, at the address specified in Section
12.5, auditable original or duplicate books and records for the Parking Garage
and Area B Surface Lot which shall disclose all information required to
determine Development Costs, Annual Basic Rental, Annual Additional Rental,
Annual Percentage Rental, Oper- ating Income 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
- 31 -
desire. If such audit shall disclose a liability for Rental in excess of the
Rental theretofore paid by Developer for the period in question, Developer
shall promptly pay such additional Rental and if such audit shall disclose an
overpayment of the Rental theretofore paid, the City shall promptly return the
excess to the Developer.
Developer further covenants and agrees to deliver to the City com-
mencing 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, Annual Additional Rental, Annual Percentage Rental, 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 or certified
by the appropriate authorized officer of the Acceptable Operator stating
specifically that such officer has examined the report, that such officer's
examination included such tests of the books and records as such officer
considered 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,
- 32 -
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 demon-
strates a discrepancy of more than three percent (3X).
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. Notwithstanding
anything to the contrary in this Lease for so long as the City of Miami
Department of Off -Street Parking is acting in the capacity as Acceptable
Operator, (i) Developer's obligations to perform under this Lease are limited
to and conditioned upon the City of Miami's Department of Off -Street Parking's
performance of those obligations on behalf of Developer pursuant to the parking
garage management agreement, and (11) if the City of Miami Department of Off -
Street Parking is in default of its obligations under the parking garage
management agreement and such failure results in a default under this Lease,
such default shall not be deemed to be an Event of Developer's Default.
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
being hereinafter referred to as "Public Charges") levied, assessed or imposed
by any public authority against the Leased Property, including all improvements
- 33 -
thereon in the same manner and to the same extent as if the same, together with
all improvements thereon, were owned in fee simple by Developer; provided, that
Developer's obligation to pay and discharge Public Charges levied, assessed or
imposed against or with respect to 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 wi11
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 the Retail Area
Ground Lease. 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.
- 34 -
Section 2.8 Security and Police Protection. Developer shall have
the responsibility for providing all security and protection for the
Improvements. Developer and City may enter into an agreement requiring the
City to provide such security and protection with respect to same. If the
City and Developer are unable to enter into such agreement, the Developer
shall be responsible for providing security and protection throughout the
Improvements.
The City shall provide the same security and police protection for
the Park Site as is afforded all other City open spaces with appropriate
augmentation in the exclusive judgment of the City Manager during periods of
high pedestrian activity including (without limitation) during special public
events.
Section 2.9 Condition of Leased Property, On the Possession Date
the City shall deliver to the Developer possession of the Leased Property,
free of any and all tenancies or other rights or claims of rights to its use
and occupancy. Prior to the Possession Date, the Leased Property shall be
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 prior to the Possession Date without
Developer's prior written approval.
The obligations of Developer under this Lease (including, without
limitation, the obligations to pay Rental hereunder) are subject to the
delivery in good and serviceable condition (ordinary wear and tear excepted)
to the Developer on the Possession Date of the Leased Property and improvements
located thereon as of the date of this Lease.
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Section 2.10 Roadways and Utilities. The City shall without
expense to Developer or public assessment against the Leased Property, provide
for the abandonment of all public streets and rights of way within the Leased
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 2.10 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 Improvements.
Section 2.11 Parkinq Rates. Parking Rates shall be established by
Developer from time to time and shall be subject to the City Manager's prior
written appovaii
ARTICLE III
DESIGN AND CONSTRUCTION
Section 3.1 Improvements to be Designed by Developer. The Parking
Garage and all improvements ancillary thereto shall be
designed by Developer (hereinafter referred to as the "Design"), subject to
the review and written approval of the City as hereinafter set forth. The
City acknowledges that prior to the execution of this Agreement, Developer has
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submitted to the City and the City has approved the concept plans (hereinafter
referred to as the "Concept Plans") for the construction of the Parking Garage
A copy of the Concept Plans is annexed hereto as
Exhibit M. The City agrees. to consult and coordinate with Developer with
respect to the preparation of the Preliminary Plans and Construction Plans.
Developer shall submit to the City at the times hereinafter set forth, four
(4) sets of plans (hereinafter referred to as the "Preliminary Plans") for the
Parking Garage an :-ot. For the purposes hereof, Preliminary
Plans shall consist of site plans and structure elevations and sufficient
detail to show site planning, architectural design and parking layout,
materials, building construction, landscape design, access, streets and
sidewalks. Preliminary Pians shall also include (i) a proposed system of
revenue control capable of being integrated with the Department of Off -Street
Parking's existing system which will permit computerized monitoring of vehicle
counts, monthly card customers, transient customers and fee calculation and
shall also provide for daily cashier reports capable of being audited by
auditors for Developer, and the City, (ii) a proposed computer. controlled
television security system with sufficient cameras to ensure the ability of
security guard(s) to monitor the entire Parking Garage (including ingress,
egress and transition areas to Bayside Specialty Center), including two-way
voice communication for emergency situations, (iii) a proposed signage and
graphic plan sufficient to ensure customer convenience; and (iv) a proposed
plan for internal circulation areas and walkways between the Parking Garage,
the balance of the leased Property and the Bayside Specialty Center providing
for maximum customer security and safety. The City acknowledges that in order
to meet the schedule for construction, the Developer may submit Preliminary
Plans in stages for written approval. The City shall not be required to issue
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permits or other formal governmental approvals to Developer for a particular
phase until the City has approved a site plan depicting all phases of the
Parking Garage and Area B Surface Lot and have approved the Preliminary Plan
for the particular phase for which a permit or other formal governmental
approval is requested.
The parties agree that the Design shall be completed by Developer in
such a manner as to permit the expansion of the Parking Garage by the addition
thereto of a fourth and fifth level (hereinafter called the "Expansion
Levels"), which Expansion Levels shall provide for approximately 750 additional
parking spaces at the Parking Garage. The additional cost of the Design
(hereinafter called the "Additional Design Costs") as a result of the addi-
tional Design work to be incurred with respect to the inclusion therein of the
possible Expansion Levels shall in no event exceed $30,000 and shall be paid
by the City after approval of the final Structural Plans. At the time that
Developer shall enter into a guaranteed maximum price construction contract,
Developer shall cause that portion of the Preliminary Plans that shall reflect
additional work to be performed in order to construct the Parking Garage in a
manner sufficient to permit the construction of the Expansion Levels
(hereinafter called the "Additional Initial Costs") to be priced separately
and shall notify the City of the amount of the price for the Additional
Initial Costs. Developer shall use diligent and reasonable efforts to cause
its construction contractor to quote a reasonable and verifiable price with
respect to the Additional Initial Costs. The City shall, within ten (10) days
after it shall have received such notice, advise the Developer in writing if
It desires to have the Parking Garage construc.ted in a manner to permit the
future construction of the Expansion Levels thereon. If the City shall. notify
Developer that it desires the Parking Garage to be constructed in such a
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manner, the City and Developer shall thereupon promptly negotiate and enter
into an agreement with respect to the manner and method of the payment of the
Additional Initial Costs by the City as construction of the Parking Garage
progresses.
At any time after the completion of the Parking Garage, the City may
notify Developer in writing that it is of the opinion that as a result of the
occupancy level and use of the Parking Garage, it would be in the financial
interests of both Developer and the City to construct the Expansion Levels.
The City shall obtain an independent feasibility study to analyse, among other
things, the marketability of the expansion and the financial impact of the
expansion on Operating Income and Net Income Available for Distribution. The
City shall submit the feasibility study to the Developer for its review. If
the feasibility study should demonstrate that the expansion is economically
feasible and marketable, the City and Developer agree to in good faith nego-
tiate the necessary agreements related to the expansion, including (without
limitation) repayment of Additional Initial Costs, reciprocal easement and use
requirements, form of management, ownership, impact upon Rental, and design
and construction responsibilities. The cost of the feasibility study shall be
borne by the City unless the Expansion Levels are actually constructed, in
which case the cost shall be included as part of the development costs of the
Expansion Levels to be paid on accordance wih any agreements entered into
between the City and Developer.
Section 3.2 Preliminary Plan Submission Dates. Developer shall
submit the Preliminary Pians to the City for written approval on or before the
time set forth for same on Exhibit D hereto. Upon receipt of each set of
Preliminary Plans representing a certain stage of construction, the City shall
review same and shall promptly (but in any event within fifteen (15) days
_3g_
after such receipt) give Developer written notice of its approval or dis-
approval setting forth in detail its reasons for any disapproval. The City's
right to disapprove the Preliminary Plans submitted shall be limited to
matters depicted in the Preliminary Plans which do not conform substantially
to the Concept Pians or previously approved Preliminary Plans for other stages
of the Parking Garage and Area B Surface Lot or new elements not presented in
the Concept Plans or matters which are violations of applicable governmental
statutes, ordinances, codes, plans, laws or regulations.
If no written response is delivered to Developer within fifteen (15)
days after submission of such Preliminary Plans, or any resubmission thereof
as hereinafter provided, they shall be deemed approved, except that no
violation of applicable governmental statutes, ordinances, codes, plans, laws,
regulations, shall be deemed waived thereby. In the event of a disapproval,
Developer shall, within fifteen (15) days of the date the Developer receives
the notice of such disapproval resubmit such Preliminary Plans to the City,
altered to satisfy the grounds for disapproval. Any resubmission shall be
subject to review and approval by the City, in accordance with the procedure
hereinabove provided for an original submission until same shall be approved
by the City, provided that in any event Developer shall submit all Preliminary
Plans for construction of the Parking Garage and Area B Surface Lot which
satisfy all of the grounds for disapproval of which the City has given notice
not later than six months from the date of this Agreement. The City and
Developer shall in good faith attempt to resolve any disputes concerning the
Preliminary Plans.
Section 3.3 Construction Pians. For the purpose of this Agreement,
"Construction Plans" shall consist of final working drawings and specifications
including (without limitation) the following information: (a) definitive
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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 and interior appearance of the Parking Garage; (d) final specifica-
tions; (e) landscaping; (f) graphics; and (g) pian for conduit and raceways
necessary for revenue control systems and television control system. 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 two sets
of Construction Plans for the same stage provided, however, that Developer
shall not be required to submit the portions of the Construction Plans con-
sisting of exterior lighting, landscaping and graphics until the date that
Developer is required to submit the lighting, landscaping and graphics portion
of the construction plans for the Bayside Specialty Center to the City pursuant
to the Retail Area Ground Lease. Upon receipt thereof, the City shall review
same and shall promptly (but in any event within fifteen (15) days after such
receipt), give Developer notice of its written approval or disapproval, setting
forth in detail its reasons for any disapproval. The City's right to dis-
approve the Construction Plans submitted shall be limited to matters depicted
in the Construction Plans which do not conform substantially to the approved
Preliminary Pians or previously approved Construction Plans for other stages
or are new elements not presented in the approved Preliminary Plans or are
violations of governmental statutes, 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 provided, they shall be deemed approved, except that no
violations of applicable laws, statutes, ordinances, codes, or regulations
shall be deemed waived thereby. In the event of a disapproval, Developer
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shall, within fifteen (15) days after the date Developer received the notice
of such disapproval, resubmit the Construction Plans for that stage to the
City, altered to satisfy the grounds of disapproval. Any resubmission shall
be subject to review and approval by the City, in accordance with the procedure
hereinabove provided for an original submission, until the same shall be
approved by the City, provided, that in any event Developer shall submit all
Construction Plans for the construction of the Parking Garage and Area B
Surface Lot (which satisfy all of the grounds for disapproval of which the
City has given written notice) not later than four (4) 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 by the City of any Construction 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 the City 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.
Concept Plans, Preliminary Plans, Construction Plans and all work by
Developer with respect to the Parking Garage and Area B Surface Lot shall be
in conformity with this Agreement, the Miami Charter and Code, the South
Florida Building Code and all other applicable state, county and local laws
and regulations.
0
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Section 3.4 Facilities to be Constructed. Developer agrees to
construct the Parking Garage emd—Rft4t-�-"-urf-ac2-Lot on the Leased Property, at
its sole cost and expense, containing the facilities more particularly
described in the Construction Plans which shall conform to the covenants
contained in Section 2.2 and which are referred to throughout this Lease as
"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 in good order, repair and appearance, commensurate with
the quality of maintenance found in the area shown and designated as "Developer
Maintenance Area" on Exhibit K to the Retail Area Ground Lease, all of the
property and improvements at the Park Site.
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
entered into pursuant to the provisions of 6.1 Section 6.2) shall maintain and
keep or cause to be maintained and kept in good order, repair and appearance
all of the property and improvements located in that portion of the Leased
Property shown and designated as Developer Maintenance Area on Exhibit K to
the Retail Area Ground Lease.
Section 3.6 Access. Prior to delivery of possession of the Leased
Property or any part thereof to Developer, the City shall permit Developer
access thereto whenever and to the extent necessary to carry out the provisions
of this Agreement. The City shall also permit, including (without limitation)
the placement of construction trailers and staging area on or adjacent to the
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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 this Agreement.
Section 3.7 Construction Period. Developer shall commence con-
struction of the Parking Garage not later than
fifty-five (55) days after the Possession Date or as soon thereafter as weather
permits (but not earlier than the approval of the Construction Plans) and
shall complete the same substantially in accordance with the Construction
Plans pursuant to the Development Schedule attached hereto as Exhibit D. 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 Proqress of Construction. Subsequent to the delivery
of possession of the Leased Property to Developer, and until construction of
the Improvements have 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
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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 obser-
vations with the requirements of the construction and operation of the
Improvements. The Developer shall restore the site to its original condition
after all testing, and shall provide the City with a copy of all results. The
City makes no warranty as to subsoil conditions. Developer shall not be
entitled to any adjustment of Rental or of any applicable time requirements in
the event of any abnormal subsoil conditions unless the subsurface conditions
are so unusual they could not have been reasonably anticipated.
Section 3.9 Certificate of Final Completion. Promptly after
completion of the Parking Garage art-*rtt-B-Surf-aet--L-et--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 Parking Garage and Area B
Surface Lot 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.
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Section 3.10 Connection to Utilities. Developer will install or
cause to be installed all necessary connections between the Parking Garage and
Area B Surface Lot and the water, sanitary and storm sewer mains and
mechanical and electrical cables and conduits whether or not owned by the City
and/or the Dade Water and Sewer Authority Department. All costs and expenses
In connection with same shall be borne by Developer.
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 Parking
Garage and Area B Surface Lot and all costs and expenses in connection with
same shall be borne by Developer.
If the City Manager's office shall become vacant or if 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, upon request of Developer, designate
such other officer or department as may be appropriate to perform the City
Manager's obligation.
Developer shall secure and pay for any and all permits and approvals
necessary for proper construction and completion of the 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
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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 98-16.18, Florida Administrative Code
and/or a Development Order pursuant to Section 380.06, Florida Statutes and/or
any other good faith means designated to the City to satisfy such
requirements. Should the City pursue a letter of interpretation or other Dade
County Development of County 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
action, 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.
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Section 3.12 Compliance with Law. Developer will comply in every
respect with any and all federal, state, county and municipal laws, ordinances,
rules, regulations 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 hereunder. Nothing herein contained shall be deemed
to limit the right of Developer to contest the validity or enforceability of
any statute, law, ordinance, rule, regulations, order or notice with which
Developer may be required to comply.
Section 3.13 Extension of Time Requirements. The times within
which Developer must submit Preliminary Plans, Construction Pians and evidence
of financing, and the times within which Developer must commence and complete
the development of the Leased Property and the construction of the 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 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 Parking Garage and Area B Surface Lot or substantially
affects the overall character and appearance of any 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 pay
_4g_
for any and all permits and approvals required to perform any of the
contemplated alterations or renovations.
Section 3.15 Art in Public Places. The Developer shall utilize 1/2
of 1 percent of all Developer construction funds ("hard -cost" line items only)
for art in the public areas on or near the Leased Property.
ARTICLE IV
LAND USES
Section 4.1. Land Uses. Developer and the City agree, for
themselves and their successors and assigns, to devote the Leased Property,
and the Park Site to the uses specified in this Agreement and to be bound by
and comply with all of 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 location 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 eco-
nomic development of the downtown area of the City. In order to give the City
assurance as to the manner in which the Improvements will be used and operated,
Developer agrees that at all times during the term of this Lease, Developer
will use its diligent efforts to operate the Parking Garage and Area B Surface
Lot as a first class public parking facility to at least the same level of
quality as any publicly owned or publicly operated parking facilities in the
City of Miami.
ARTICLE V
ANTI -SPECULATION; ASSIGNMENT
Section 5.1 Definitions. As used herein, the term:
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(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 (excluding any shareholder of an Owner whose shares are publicly
traded) or of any Owner, other than an Owner whose shares are publicly
traded; or
(iii) any merger, consolidation or sale or lease of all or
substantially all of the assets of Developer or of any Owner, other than
an owner whose shares are publicly traded.
(b) "Owner" means:
( i ) any person, firm, corporation or other entity which owns,
directly or indirectly, legally or beneficially, one percent (1X) or more
of the stock of the General Partner of Developer or other form of ownership
interest of the Developer; and
(ii) any person, firm, corporation or other entity which owns,
directly or indirectly, legally or beneficially, more than fifty percent
(50X) 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
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shares of any class of its voting stock or of all classes of any other
form of ownership interest which includes voting rights; and
(ii) whose voting stock and other form of ownership interest
described in clause (i) is listed for trading purposes on a securities
exchange subject to the regulatory jurisdiction of the Securities &
Exchange Commission (or its successor) or is publicly traded over the
counter.
Section 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 of the Leased Property to the
general welfare of the community;
(b) The substantial financing and other public aids that have been
made available by the City for the purpose of making such development of the
Bayfront Park possible; and
(c) The fact that a transfer of the stock of the General Partner of
Developer or a substantial part thereof, or any other act or transaction
involving or resulting in a significant change in . the ownership or
distribution of such stock or 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
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willing to accept and rely on the obligations of Developer for the faithful
performance of all undertaking and covenants by it to be performed.
Section 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 (i) hereof, no Transfer may be made, suffered or
created by Developer or any Owner. The following Transfer shall be permitted
hereunder:
(a) Any Transfer by Leasehold Mortgage to an Institutional Investor
or to an agent, designee or nominee of an Institutional Investor which is
wholly owned or controlled 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 (5) months 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.
(c) Any Transfer directly resulting from a conveyance to a Lender/
Landlord of the Developer's interest provided that such Transferee, within
thirty (30) days after taking possession of the Project, shall have entered
into an Acceptable Operator's Agreement as described in Subsection VI(c)(iv)
of this Agreement.
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(d) Any Transfer to a purchaser having a good reputation and finan-
cial resources in the opinion of the City Manager and the City Commission to
own the Project (an "Acceptable Purchaser") that shall have entered into an
Acceptable Operators Agreement. 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 the terms hereof. The basis for such arbt-
tration shall be the reasonableness of the City Manager and City Commission's
decision whether or not such purchaser met the criteria herein set forth to
qualify as an Acceptable Purchaser or that the Acceptable Purchaser did not
enter into an Acceptable Operator Agreement.
(e) Any Transfer to a joint venture, general or limited partnership,
joint stock association or Massachusetts business trust, a substantial interest
in which i s held by Developer and the other Interests i n which are held by a
Leasehold Mortgagee or Lender/Landlord 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.
(f) Any Transfer by a limited partner who is an Owner who is a Black
American or a Hispanic American to a Black American or an Hispanic American or
to an entity which is not an Owner but is owned or controlled by a Black
American or Hispanic American immediately after such Transfer which is
consented to by the City Manager and City Commission, which consent may not be
unreasonably withheld.
(g) Any Transfer by an Owner who is a limited partner of Developer
and who also is a Black American or Hispanic American into a charitable trust,
a blind trust or for estate planning purposes for the immediate family, pro-
-53-
vided, however, as to a Transfer by an Owner for estate planning purposes for
the immediate family, the effective control of ownership is to remain in the
transferor or another Black American or Hispanic American.
(h) Any Transfer resulting from the death or dissolution of an Owner
provided that same does not result in the dissolution or termination of Devel-
oper or any general partner of Developer.
(i) Any Transfer for tax syndication purposes, provided the General
Partner of the Developer remains the managing general partner of the Developer
after the syndication.
(j) 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.
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
Transfer 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 withholding
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.
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(b) Developer shall from time to 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 in such stock, their full names and
addresses and the extent of such interest as determined or indicated by the
records of Developer, by inquiry which such officers shall make of all parties
who on the basis of such records own one percent (1%) or more of the ownership
interest of Developer or by such other knowledge or information as either of
such officers shall have. Notwithstanding the foregoing, the information
required by this subparagraph (b) shall not be required to be furnished with
respect to the shareholders of any Owner whose shares are publicly traded.
Section 5.5. Effectuation of Certain Permitted Transfers. No
Transfer of the nature described in subsections (d), (e) and (i) 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,
that any Lender, Leasehold Mortgagee, Lender/Landlord transferee shall not be
required to assume any personal liability under this Lease with respect to any
matter arising prior or subsequent to the period of such transferee's actual
ownership of the leasehold estate created by this Lease (it being understood,
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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 or accept such trans-
feree or successor of or from such obligations, conditions or restrictions, or
deprive or limit the City of or with respect to any rights, remedies or
controls with respect to the leasehold estate in the Leased Property or the
construction of the construction of the Improvements.
Section 5.6. 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
or with respect to the City's reversionary interest in the Leased Property or
any part thereof or any interest therein or any contract or agreement to do any
of the same, to any purchaser, assignee, mortgagee or trustee unless such
purchaser, assignee, mortgagee or trustee shall have the authority and the
ability, in the Developer'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 Leasehold Mortgagee.
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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. Minority Participation in Ownership. Developer agrees
that no less than twenty percent (20x) 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 Agree- ment
attached as Exhibit H to the Retail Area Ground Lease. Notwithstanding any
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 an Event of Developer's Default.
ARTICLE VI
MORTGAGEE FINANCING; RIGHTS OF MORTGAGEE
Section 6.1. Leasehold Mortgaqe.
(a) Notwithstanding the provisions set forth in Article V hereof
regarding any Assignment of this Lease, but subject to the provisions of this
Article VI, provided that an Event of Default has not occurred and is not
continuing, Developer shall have the right at any time and from time to time
to encumber the leasehold estate created by this Lease and any improvements by
Mortgage, Sale-Subleaseback transaction, deed of trust or other security
instrument, including, without limitation, an assignment of the rents, issues
and profits from the Leased Property and Improvements to secure repayment of a
loan or loans (and associated obligations) made to Developer by an Institu-
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tional Investor (as defined below) for the sole purpose of securing the
financing of the construction of any Developer Improvements made pursuant to
the terms of this Lease or for the long-term financing or refinancing of any
such Improvements. 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 as security for any indebtedness of
Developer or The Rouse Company with respect to any other property now or
hereinafter owned by Developer and/or The Rouse Company except that Developer
may so encumber same as additional security for a loan or loans granted to
Developer in connection with the Bayside Specialty Center.
(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 association, 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 fund administered by an entity which is supervised by a
governmental authority; "Leasehold Mortgage" shall mean a mortgage, deed of
trust or assignment of the rents, issues and profits from the Leased Property
and Improvements, which constitutes a lien on the leasehold estate created by
this- Lease and on the fee interest of Developer in any Improvements during the
term of this Lease; and "Lender" shall mean an Institutional Investor who is
the owner and holder of a Leasehold Mortgage, Drovided, however, that the City
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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 the expiration of the full
term of this Lease) nor shall the City consent to any material amendment
or modification of this Lease or waive any rights or consents it may be
entitled to pursuant to the terms hereof, without the prior written
consent of Lender.
(ii) Notwithstanding any default by Developer 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 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 Default and Lender
shall have failed to remedy such default or to acquire Developer's lease-
hold estate created hereby or to commence foreclosure or other appropriate
proceedings in the nature thereof, all as set forth in, and within the time
specified by, this Article VI.
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(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 of 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 Improvements, and do any other
act or thing required of Developer hereunder, and to do any act or thing
which may be necessary and proper to be done in the performance and
observance of the covenants, conditions and agreements hereof to prevent
the termination of this Lease. All payments so made and all things so
done and performed by Lender shall be as effective to prevent a
termination of this Lease as the same would have been if made, done and
performed by Developer instead of by Lender.
(iv) Should any Event of Default under this Lease occur, Lender
shall have sixty (60) days after receipt of notice from the City Manager
setting forth the nature of such Event of Default, to remedy same and, if
the default is such that possession of the Leased Property and Improvements
may be reasonably necessary to remedy the default, Lender shall, within
such sixty (60) day period, commence and diligently prosecute a foreclosure
action or such other proceeding as may be necessary to enable Lender to
obtain such possession, provided that (a) Lender shall have fully cured
any default in the payment of any monetary obligations of Developer under
this Lease within such sixty (60) day or longer period and shall continue
to pay currently such monetary obligations as and when the same are due,
(b) Lender shall within six (6) months of the date that it takes possession
of the Leased Property enter into an agreement on terms and conditions
reasonably acceptable to the City with an Acceptable Operator for the
continued operation of the Leased Property and Improvements (hereinafter
called "Acceptable Operator's Agreement"), and (c) Lender shall have
acquired Developer's leasehold estate created hereby or commenced
foreclosure or other appropriate proceedings in the nature thereof within
such sixty (60) day period or prior thereto, and shall be diligently and
continuously prosecuting any such proceedings to completion. All rights
of the City Manager to terminate this Lease as the result of the occurrence
of any such Event of Default shall be subject to and conditioned upon the
City Manager having first given Lender written notice of such Event of
Default and Lender having failed to remedy such default or acquire
Developer's leasehold estate created hereby or commence foreclosure br
other appropriate proceedings in the nature thereof as set forth in and
within the time period specified by this subparagraph 00.
(v) An Event of 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 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 Leased Property and Improvements within such
sixty (60) days period and shall thereafter continue to faithfully perform
all such monetary obligations which do not require possession of the Proj-
ect, and (d) within six (6) months after Lender shall have gained posses-
sion of the Leased Property and Improvements, Lender shall have entered
ZM
into an Acceptable Operator's Agreement. Upon the taking of possession of
the Leased Property and Improvements by Lender, Lender shall perform all
of the obligations of the Developer hereunder as and when the same are due
except that a Lender shall not be bound by the provisions of subsection
5.7 hereof. Notwithstanding the foregoing, the City agrees that Lender
shall not be obligated to complete construction of the Improvements if
Lender shall succeed to Developers estate under this Lease. Any assignee
or successor in interest to a Lender that has taken possession of the
Leased Property must, however, assume all of Developer's obligations
(except as set forth in subsection 5.7 hereof) hereunder, including, but
not limited to, the construction obligation.
(vi) If the Lender is prohibited by any process or injunction
issued by any court or by reason of any action by any court having
jurisdiction of any bankruptcy, debtor rehabilitation or insolvency
proceedings involving Developer from commencing or prosecuting foreclosure
or other appropriate proceedings in the nature thereof, the times
specified in subparagraphs (iv) and (v) above for commencing or
prosecuting such foreclosure or other proceedings shall be extended for
the period of such prohibition; provided that Lender shall have fully
cured any default in the payment of any monetary obligations of Developer
under this Lease and shall continue to pay currently such monetary
obligations as and when the same fall due, and provided that Lender shall
diligently attempt to remove any such prohibition.
(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;
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and no notice by the City Manager to Developer hereunder shall be deemed
to have been given unless and until a copy thereof has been mailed to
Lender.
(viii) Foreclosure of a Leasehold Mortgage or any sale thereunder,
whether by judicial proceedings or by virtue of any power of sale
contained in the Leasehold Mortgage, or any conveyance of the leasehold
estate created hereby from Developer to Lender by virtue or in lieu of the
foreclosure or other appropriate proceedings in the nature thereof, shall
not require the consent of the City or constitute a breach of any
provision of or a default under this Lease. upon such foreclosure, sale
or conveyance, the City shall recognize Lender, or any other foreclosure
sale purchaser, as tenant hereunder except that all obligations on
Developer herein contained shall be binding on the Lender only from and
after the date that it shall take title to the Developer's leasehold
estate unless otherwise in this Article VI provided; provided, that Lender
or any such foreclosure sale purchaser must enter into an Acceptable
Operator's Agreement, within six (6) months of the date of such
foreclosure, sale or conveyance, and further, provided, that in the event
there are two or more Leasehold Mortgages or foreclosure sale purchasers
(whether the same or different Leasehold Mortgages), the City shall have
no duty or obligation whatsoever to determine the relative priorities of
such Leasehold Mortgages or the rights of the different holders thereof
and/or foreclosure sale purchasers. In the event Lender subsequently
assigns or transfers its interest under this Lease after acquiring the
same by foreclosure or by an acceptance of a deed in lieu of foreclosure
or subsequently assigns or transfers its interest under any such new
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lease, and in connection with any such assignment or transfer Lender takes
back a mortgage or deed of trust encumbering such leasehold interest to
secure a portion of the purchase price given Leasehold Mortgage as
contemplated under this Section 6.1, Lender shall be entitled to receive
the benefit of this Article VI and any other provisions of this Lease
intended for the benefit of the holder of a Leasehold Mortgage. Any
person or entity to whom this Lease or any such new lease is assigned must
either enter into or assume Lender's obligations under an Acceptable
Operator's Agreement.
(ix) Should the City terminate this Lease by reason of any
default by Developer hereunder, the City Manager shall give notice thereof
to all Leasehold Mortgagees and the City Manager shall, upon written
request by Lender to the City Manager received within sixty (60) days
after such termination, execute and deliver a new lease of the Leased
Property and Improvements to Lender for the remainder of the term of this
Lease with the same covenants, conditions and agreements (except for any
requirements which have been satisfied by Developer prior to termination)
as are contained herein, provided, however, that the City's execution and
delivery of such new lease of the Leased Property and Improvements shall
be made without representation or warranty of any kind or nature whatso-
ever, either express or implied, including without limitation, any repre-
sentation or warranty regarding title to the Leased Property and Improve-
ments 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
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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 were not the subject of a Lease). Upon execution and
delivery of such new lease, Lender at its sole cost and expense, shall be
responsible for taking such action as shall be necessary to cancel and
discharge this Lease and to remove Developer named herein and any other
occupant (other than as allowed by the City) from the Leased Property and
Improvements. The City's obligation to enter into such new lease of the
Leased Property and Improvements within the Lender shall be conditioned
upon Lender having remedied and cured all monetary defaults hereunder and
having remedied and cured or has commenced and is diligently completing
the cure of all non- monetary defaults of Developer susceptible to cure by
any party other than by Developer. If the City receives written requests
in accordance with the provisions of this Section 6.1(ix) from more than
one Leasehold Mortgagee, the City shall only be required to deliver the
new lease to the Leasehold Mortgagee who is, among those Leasehold
Mortgagees requesting a new lease, the holder of the most junior Leasehold
Mortgage, provided that such Leasehold Mortgagee shall, not later than the
execution of such new lease, either (x) pay in full the sums secured by
any or all Leasehold Mortgages which are prior in lien to the Leasehold
Mortgage held by such Leasehold Mortgagee, or (xx) agree to reinstate the
liens of any or all Leasehold Mortgages which are prior in lien to the
Leasehold Mortgage held by such Leasehold Mortgagee with the same relative
priority as existed prior to the termination of this Lease. If any
Leasehold Mortgagee having the right to a new lease pursuant to this
Section 6.1(ix) shall elect to enter into a new lease but shall fail to do
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so or shall fail to take the action required above, the City shall so
notify all other Leasehold Mortgagees (if any) and shall afford such other
Leasehold Mortgagee a period of sixty (60) days from such notice within
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,
the new lease shall be prior to any mortgage or other lien, charge or
encumbrance on the fee of the Leased Property or the improvements and shall
have the same relative priority in time and in right as this Lease and
shall have the benefit of all of the right, title, powers and privileges
of Developer hereunder in and to the Leased Property and the Improvements.
At Developer's request, the City will enter into an agreement with any
Leasehold Mortgagee granting to the Leasehold Mortgagee 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 net operating profit, if any, made by the City
during the period that the City shall have operated the Improvements.
(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,
however, that any such amendment shall not in any way affect the term
hereby demised nor affect adversely in any material respect any rights of
the City under this Lease.
(xi) All rights and benefits afforded to a Leasehold Mortgagee
hereunder shall also be afforded to a party providing financing to
Developer pursuant to a Financing Sublease.
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Section 6.2. No Waiver of Developer's Obligations or City's
Rights. Nothing contained herein or in any Leasehold Mortgage shall be deemed
or construed to relieve Developer from the full and faithful observance and
performance of its covenants, conditions and agreements contained herein, or
from any liability for the non -observance or non-performance thereof, or to
require or provide for the subordination to the lien of such Leasehold
Mortgage of any estate, right, title or interest of the City in or to the
Improvements 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
Rental, Additional Rental or Public Charges or any other payments of money as
herein provided or required, when due and the continuance of such failure for
a period of 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 Rental.
(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
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such failure or default 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
2. if Developer admits its inability to pay its debts, or if a
receiver, trustee or other court appointee is appointed for all or a
substantial part of Developer's property; or
3. if the leasehold interest of Developer is levied upon or
attached by process of law; or
4. if Developer makes an assignment for the benefit of
creditors or takes the benefit of any insolvency act, or if any
proceedings are filed by or against Developer to declare Developer
insolvent or unable to meet its debts; or
5. if a receiver or similar type of appointment or court
appointee or nominee of any name or character is made for Developer or its
property; or
6. if Developer shall abandon the Leased Property during the
term of this Lease or any renewals or extensions thereof; or
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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 Leased Property to the City in accordance
with Section 11.5. Upon the termination of this Lease, as provided in this
Section 7.2, all rights and interest of the Developer in and to the Leased
Property and every part thereof shall cease and terminate and the City may, in
addition to any other rights and remedies it may have, retain all sums paid to
it by the Developer under this Lease.
Section 7.3. Events of Default - City.
(a) Events of Default. The failure of the City to perform any of
the covenants, conditions and agreements of this Lease which are to be per-
formed 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
the City within such sixty (60) day period shall have commenced and thereafter
shall continue diligently to prosecute all actions necessary to cure such
defaults, such failure shall constitute an "Event of the City's Default".
(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;
(ii) the right to a writ of mandamus, injunction or other
similar relief, available to it under Florida law against the City
(including any or all of the members of its governing body, and its
officers, agents or representative) provided, however, that in no event
shall any member of such governing body or any of its officers, agents or
representatives be personally liable for any of the City's obligations
hereunder;
(iii) the right to maintain any and all actions at law or suits
in equity or other proper proceedings to obtain damages resulting from
such default.
Section 7.4. Unavoidable Delay. For 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 Improvements, or progress in
respect thereto, in the event of unavoidable delay in the performance of such
obligations due to strikes, lockouts, acts of God, inability to obtain labor
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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 Developer with respect to
construction of Improvements, shall be extended for the period of unavoidable
delay; provided, however, that the party seeking the benefit of the provisions
of this Section shall, within thirty (30) days after such party shall have
become aware of such unavoidable delay, give notice to the other party thereof
in writing of the cause or causes thereof and the time delayed.
The parties hereto agree that if any delay in the occurrence of any
event shown on Exhibit G hereto shall be caused by an act 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 reasonable and diligent
efforts to cause the Parking Garage to be opened 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 or
breach or of any of its remedies for any other default or breach by the other
party. No waiver made by either party with respect to performance, or manner
or time thereof, of any obligation of the other party or any condition to its
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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.
ARTICLE VIII
PROTECTION AGAINST MECHANICS'
LIENS AND OTHER CLAIMS, INDEMNIFICATION
Section 8.1. Mechanics' Liens and Payments of Obligations.
(a) Developer to Discharge Mechanics' Liens. Developer shall not be
given possession of the Leased Property or authorized to begin construction
thereon prior to the recording of this Lease and prior to 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 appropriate action to
have the same discharged or to contest in good faith the amount or validity
thereof and if unsuccessful in such contest, to have the same discharged.
Upon Developer's failure so to do, the City, in addition to any other right or
remedy that it may have, may take such action as may be reasonably necessary
to protect its interest, and Developer shall pay any amount paid by the City
in connection with such action, and all reasonable legal and other costs and
expenses incurred by the City in connection therewith (including reasonable
counsel fees, court costs and other necessary disbursements). Any such amounts
paid by the City and the amount of any such expenses or costs incurred by the
City, if not paid by Developer to the City within thirty (30) days after the
date Developer receives written notice from the City of the amount thereof and
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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 th�}n the�tnext monthly i s�t�i lmgnt of `the. Annual Basic Rental,
�1d�w�c���:
becoming due. -_��'',
�
—of. Materialmen and Suppliers. Developer shall make, or
cause to be made, prompt payment of all money due and legally owing to all
persons doing any work or to subcontractors in connection with the development,
construction, equipment, repair or reconstruction of any of the Improvements
required by this Agreement to be constructed by Developer on the Leased
Property. Nothing in this subparagraph (b) shall limit the right of Developer
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
harmless Developer from and against any and all claims or demands, suits at
law, in equity or before administrative tribunals, due to the negligence of
the City, its agents, servants, employees, or contractors arising out of the
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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. Insurance Coveraqe. Beginning on the Possession Date
and during the term of this Lease, Developer at its sole cost and expense
shall maintain or cause to be maintained:
(a) Property Insurance. Insurance on the Improvements against All
Risks of physical loss or damage, including the expense of the removal of
debris of such property 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. During the construction
period, property insurance may be provided on a Completed Value Builder's Risk
form. The City and Developer shall be designated 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 all 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
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insurable loss occurred, and the cause of the deficiency in insurance proceeds
is the failure of the Developer to adequately insure the Improvements as
required by this 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) Business Interruption Insurance. Business interruption insur-
ance, so that Developer wi11 be insured against loss of business income from
the Improvements occasioned by any of the insured against perils included in
the Property Insurance policy during the period required to rebuild, repair or
replace the property damaged, which policy or policies of insurance shall
expressly provide by endorsement thereon that the interest of the City as
lessor under this lease shall be covered to the extent earned, in an amount
equal to the total of Rental payable during said period of business interrup-
tion; provided, however, that Developer shall not be required to carry such
rental value insurance as aforesaid until such time as the Improvements shall
be opened for business with the general public. The adequacy of the Business
interruption 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 to at least a combined single limit for
bodily injury and property damage liability of $1,000,000 per occurrence. The
adequacy of the automobile liability insurance coverage may be reviewed every
five years by the City Manager. Any review by the City Manager shall not
constitute an approval or acceptance of the amount of insurance coverage.
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(d) Liability Insurance. Comprehensive general liability, including
contractual liability, or an equivalent policy form providing liability
Insurance against claims for personal injury or death or property damage,
occurring on or about the Leased Property, the Improvements, or any elevator,
escalator, or hoist thereon. Such insurance shall afford protection to at
least a combined single limit for bodily injury and property damage liability
of $10,000,000 per occurrence. The adequacy of the liability insurance cover-
age shall 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. Such liability and property damage insurance shall also
be placed in effect during the period of permitted access provided in Section
3.8 herein.
(e) Garage Liability in the same limits as (d) above, including
Automobile Insurance Hazard I;
(f) Garagekeepers Legal Liability with limits not less than
$5,000,000 per occurrence plus an excess coverage policy in an amount of not
less than $10,000,000. This policy shall be endorsed to name the City and
DOSP as additional insureds.
(g) Theft Coveraqe covering employee fidelity, inside or outside
loss and burglary with a limit of not less than $100,000 per occurrence.
(h) Worker's Compensation as required by Florida Statutes, Chapter
440.
(i) Flood Insurance in an amount satisfactory to the City and
Developer.
(j) Design Defect Excess Coverage. Developer agrees to name the City
as an addition insured on any blanket excess coverage policy with respect to
design defects in the Parking Garage which may be carried by The Rouse Company.
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(k) 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.
(1) 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
or renewal policies replacing any policies expiring during the term 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 - Blanket Insurance Permitted.
All insurance provided for in this Article IX shall be effected under valid
and enforceable policies issued by insurers of recognized responsibility,
which are licensed to do business in the State of Florida. 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.
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Section 9.3. Named Insureds - Notice to City of Cancellation. A11
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 such Leasehold Mortgagee may appear. Notwithstanding any such
inclusion, the parties hereto agree that any losses under such policy shall
be payable, and all insurance proceeds recovered thereunder shall be applied
and disbursed in accordance with the provisions of this Lease. All insurance
policies shall provide that no material change, cancellation or termination
shall be effective until at least thirty (30) days after receipt of written
notice thereof has been received by the 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
So. In the event Developer at any time refuses, neglects or fails to secure
and maintain in full force and effect any or all of the insurance required
pursuant to this Agreement, the City, at its option, may procure or renew such
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
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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 4.6. 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 Rental
in respect thereto, pursuant to this Agreement, as the same may become due and
payable, as provided in this Agreement, or from the performance and
fulfillment of any of Developer's obligations pursuant to 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 sums payable for loss and damage arising out of
the casualties covered by the property insurance policies shall be payable:
(i) Directly to Developer for purposes of rebuilding, replacing
and repair if the total recovery is $500,000.00 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
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(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 be 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. The Insurance Trustee
shall be a commercial bank -or trust company 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
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Reconstruction Work. Developer shall submit invoices or proof of payment to
the Trustee for payment or reimbursement in accordance with an agreed schedule
of values approved in advance by the City Manager.
Any amount remaining in the hands of the Insurance Trustee after the
completion of the Reconstruction Work shall be paid to Developer.
(c) Lenders and Lender/Landlords May Have Benefit of Insurance Fund
for Reconstruction. In the event Developer, pursuant to Leasehold Mortgage or
Financing Sublease, shall at any time authorize a Lender or Lender/Landlord on
his behalf or in his stead to enter upon the Leased Property and undertake or
prosecute the reconstruction or repair of any building on the Leased Property
damaged or destroyed by fire, or other insured -against hazard or peril and to
have and receive for Developer or Leasehold Mortgagee's use for such purpose
such insurance proceeds, then in that case said insurance proceeds shall be
equally available to Leasehold Mortgagee as to Developer as provided in sub-
section (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 reconstruc-
tion or repair of any such building so damaged or destroyed.
Section 9.9. Covenant for Commencement and Completion of Recon-
struction. Subject to the provisions of Section 9.1(b) and Section 9.10,
Developer covenants and agrees to commence the Reconstruction Work as soon as
practicable but in any event within six (6) months after the insurance proceeds
In respect of the destroyed or damaged Improvements or personalty have been
received, and to fully complete such Reconstruction Work as expeditiously as
possible consistent with the nature of the damage, but in any event within
eighteen (18) months from the start thereof; provided, that if it is not
practicable to commence• such Reconstruction 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 the City Manager after written request from Developer. As used in the
preceding sentence, the term "available net insurance proceeds" means the sum
actually paid by the insurer or insurers in respect of the claim in question,
less all costs and expenses incurred by Developer or the Insurance Trustee in
the collection, holding and disbursement of same, including (without limita-
tion) 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
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 Riqhts In the Event of Uninsured Major
Casualty. In the 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 thereupon terminate as to such
portion of the Leased Property and Developer shall have no further obligation
hereunder with respect thereto, except that, if the City shall so request
within thirty (30) days after such notice is given, Developer shall, at its
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expense, promptly demolish any buildings or other improvements situated on the
portion of the Leased Property as to which this Lease shall have been
terminated and shall clear and grade such portion of the Leased Property. The
City and Developer shall, at the request of either, execute such instruments
or documents as may be reasonably necessary or desirable in order to amend
this Lease to delete such portion of the Leased Property from the description
of the property demised hereby. If the Improvements or the Leased Property
which were uninsured, or for which there were no 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 option, in lieu of rebuilding, replacing or repairing the
Improvements or the Leased Property as provided in this Lease, Developer may
give notice to the City, within sixty (60) days after the occurrence of such
damage or destruction, of Developer's intention to terminate this Lease on any
business day specified in such notice which occurs not less than sixty (60)
nor more than one hundred twenty (120) days after the date of such damage or
destruction, provided that such notice shall be accompanied by a certificate
of the Developer, signed by the appropriate officer or general partner,
stating 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 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
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of this Lease Developer shall, at Developer's expense but at the option of the
City, promptly demolish any building or other remaining improvement and shall
clear and grade the Leased Property.
Section 9.11. Casualty to Bayside Specialty Center. In the event
that all or any portion of the Bayside Specialty Center damaged or destroyed
by reason of fire or any other casualty and not restored such that, in the
good faith opinion of Developer, it shall be economically unfeasible to use
and enjoy the Improvements on the Leased Property, then Developer shall have
the right, provided Developer pays off any tax exempt revenue bonds used to
construct the Parking Garage and Area B Surface Lot, to terminate this Lease
upon giving the City written notice of the exercise of such option and this
Lease shall terminate and be null and void as of the date of termination
specified in such notice, 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. If Developer shall so terminate this Lease,
Developer shall pay to the City, if the City shall actually demolish the
Parking Garage, fifty percent (50y) of the City's costs incurred in connection
with the demolition of the Parking Garage.
ARTICLE X
CONDEMNATION
Section 10.1. Entire Leased Property Taken by Condemnation. In the
event that the whole of the Leased Property and Improvements (or such portion
thereof as shall, in the good faith opinion of Developer, render it
economically unfeasible to effect restoration thereof) shall be taken for any
public use 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
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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 of damages allowed to the City or Developer
shall be paid as follows:
First: There shall be paid all expenses, if any, in-
cluding reasonable attorneys' fees, incurred by the City and
Developer in such condemnation suit or conveyance (except that
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
Leased Property as found by the court or jury in its condemnation
award, or if no such separate awards are obtained, such balance
shall be paid to Developer and the City in the same proportion
as the then Fair Market Value of each party's respective
interest or estate in the Leased Property and the Improvements
bears to the total fair Market Value of the interests and
estates of both parties in the Leased Property and Improvements
within thirty (30) days of the time of the taking, such value
shall be determined by the Arbitration Panel, selected In the
manner and acting with the authority provided in this Article.
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Section 10.2. Partial Taking of Leased Property by Condemnation.
(a) In the event that less than all of the Leased Property or
Improvements shall be taken for any public use or purpose by the exercise of
the power of eminent domain, or shall be conveyed by the 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 (b) 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., O ncludi �,g reasonable, alt,
attorneys fees) incurred in the collection of same.,r,CAII(�.,•;,, ��\.�,f
to t tS3 �uJ:1�c_� Com,.F. ;�
(b) The award or awards of damages allowed to City and Dev6loper CJ
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 interest in the
Leased Property as found by the court or jury in its condemnation
award, or if no such separate awards are obtained, such balance
shall be paid to Developer and the City in the same proportion
as the then Fair Market Value of each party's respective
interest or estate in the Leased Property and the Improvements
bears to the total Fair Market Value of the interests and
estates of both parties in the Leased Property and Improvements.
In the event that the parties cannot agree upon the Fair Market
Value of their respective interests and estates 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 Section 10.5 of this Article.
Section 10.3. Adjustment of Rent Upon Partial Takinq. 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
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Rental pursuant to this Agreement and the Public Charges in respect of such
part of the Leased Property shall be paid by Developer to the date of such
taking or conveyance, and after such date the Rent for the remainder of the
Leased Property shall be reduced by such an amount as may be agreed upon in
writing by the parties hereto, provided, however, 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 domain, or under threat thereof, the
whole or any part of the Leased Property or the Improvements shall be taken
for temporary use or the whole or any part of the leasehold estate created by
this Lease shall be taken, all awards or other payments shall be paid to
Developer alone, except that,
(1) 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 Rental by the Developer shall continue as
if no condemnation had taken place. Rentals payable shall be the Annual
Basic Rental, Annual Additional Rental and Annual Percentage Rental.
Rentals payable shall, for the purposes of this Section 10.4, be the
Average Rentals paid in the immediate 3 year period prior to the notice of
taking by condemnation or 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 10.5. Arbitration. A panel of arbitrators ("Arbitration
Panel") shall be established when required by this Agreement. (i) The
appointments to the panel shall be made in the following manner:
(a) The City shall name one member;
(b) Developer shall name one 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.
(iv) All actions, hearings and decisions of the Arbitration
Panel shall be conducted, based upon and in accordance with the Commercial
Arbitration Rules of the American Arbitration Association. In all
controversies, disputes or claims with respect to the evaluation of real
estate referred to Arbitration under the provisions of this 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 not have the power to vary, modify or reform any
terms or provisions of the Agreement in any respect. The Arbitration
Panel shall afford a hearing to the City and to the Developer and the
right to submit evidence with the privilege of cross-examination on the
question at issue. All arbitration hearings shall be held at a place
designated by the Arbitration Panel in Dade County, Florida.
(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
set by the Arbitration Panel, but in any event no later than forty-five
(45) days following the commencement of the hearing. The Arbitration
Panel shall render a determination within sixty (60) days from the
conclusion of the hearing. If no determination is rendered within such
time, unless the parties agree otherwise, a new Arbitration Panel shall be
selected as described 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. Bayside Specialty Center Taken By Condemnation.
In the event that all or any portion of the Bayside Specialty Center
or the Retail Parcel is taken by a power of eminent domain or shall be conveyed
to avoid such proceedings such that, in the good faith opinion of Developer,
it shall be economically unfeasible to use and enjoy the Improvements on the
Leased Property, then the Developer shall have the right, provided Developer
pays to the City the amount then outstanding under any bonds used to finance
the construction of the Parking Garage and Area B Surface Lot, 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 the
termination specified in the 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. Should the City desire that the Parking
Garage be demolished upon termination of the Lease, Developer shall share the
cost of such demolition with the City. If Developer shall so terminate this
Lease, Developer shall pay to the City, if the City shall actually demolish
the Parking Garage, fifty percent (50X) of the City's costs incurred in
connection with the demolition of the Parking Garage.
ARTICLE XI
RIGHTS OF OCCUPANCY AND ACCESS;
MAINTENANCE; OWNERSHIP OF IMPROVEMENTS
Section 11.1. Quiet Enjoyment. The City represents and warrants
that Developer, upon paying the Rental pursuant to this Agreement and
observing and keeping the covenants and agreements of this Agreement on its
part to be kept and performed, shall lawfully and quietly hold, occupy and
enjoy the Leased Property without hindrance or molestation by the City during
the term of this Agreement or by any person or persons claiming under the City.
Section 11.2. Waste. Developer shall not permit, commit or suffer
waste or impairment of the Leased Property, or the Improvements thereon, or
any part thereof.
Section 11.3. 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-
-92—
ments, and of the Leased Property, shall comply with all laws, ordinances,
codes and regulations applicable thereto.
Section 11.4. Ownership of Improvements Durinq Lease. Prior to the
expiration or termination of this Lease, title to the Improvements shall not
vest in the City by reason of its ownership of fee simple title to the Leased
Property, but title to such Improvements shall remain in Developer. If this
Lease shall terminate prior to the expiration of the term hereof and if, at
that time, any Lender 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 Lender or
any designee or nominee. of such Lender permitted hereunder, until the
expiration or sooner termination of the term of such new lease. The City and
Developer covenant that to confirm the automatic vesting of title as provided
in this paragraph, each will execute and deliver such further assurances and
instruments of assignment and conveyance as may be required by the other for
that purpose. During the term of this Lease, Developer 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. 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 for 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.
- 93 -
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, access easements
or easements or rights with respect to electric, telephone, gas, water, sewer,
steam and such other public utilities and facilities as may be reasonably
necessary or appropriate for the construction, operation or use of the Leased
Property or any Improvements to be erected by Developer thereon. Developer
shall pay all fees and charges for all such applications and grants.
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.1. No Partnership or Joint 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 Developer as the agent or representative of the
City for any purpose or in any manner whatsoever.
Section 12.2. Recordinq, 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 or addition to this Lease or any ancillary
- 94 -
document relevant to this transaction to be so recorded, and the cost of any
such recordation, cost of any State of Florida documentary stamps which
legally must be attached to any or all of said papers, and the cost of the
applicable Dade County and State transfer tax shall be paid in full by
Developer.
Section 12.3. Florida and local Laws Prevail. This Agreement shall
be taken and deemed to be governed by the laws of the State of Florida. This
Agreement 1s subject to and shall be interpreted to effectuate Its compliance
with the Charter of the City of Miami, the City of Miami Code and the Dade
County Charter and Code. Furthermore, the terms of this Agreement allow
reasonable public access to the water, reasonable public use of such property,
and comply with other charter waterfront setbacks and view corridor require-
ments. Any conflicts between this Agreement and the aforementioned Codes and
Charters shall be resolved In favor of the latter. If any term, covenant, or
condition of this Lease or the application thereof to any person or circum-
stances 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 of this Lease, or the application of such
term, covenant or condition to persons or circumstances other than those as to
which it is held invalid or unenforceable, shall not be affected thereby and
each term, covenant, or condition of this Lease shall be valid and be enforced
to the fullest extent permitted by law. Contemporaneously with the execution
of the Agreement, the City Attorney has delivered an opinion to Developer
opining that the execution and delivery hereof by the City is in compliance
with the Charter of the City of Miami, the City of Miami Code and the Dade
County Charter and Code.
- 95 -
Section 12.4. Conflicts of Interest; City Representatives Not
Individually Liable. No member, official, representative, or employee of the
City or the City Manager shall have any personal interest, direct or indirect,
in this Agreement, nor shall any such member, official, representative or
employee participate in any decision relating to this Agreement which affects
his or her personal interest or the interest of any corporation, partnership
or association in which he or she is, directly or indirectly, interested. No
member, official, representative or employee of the City or the City Manager
shall be personally liable to Developer or any successor in interest in the
event of any default or breach by the City or the City Manager or for any
amount which may become due to Developer or successor or on any obligations
under the terms of the Agreement.
Section 12.5. Notice. A notice of communication under this
Agreement by either the City or the City Manager, on the one hand, to
Developer, or, on the other, by Developer to the City or the City Manager
shall be sufficiently given or delivered if dispatched by registered or
certified mail, postage prepaid, return receipt requested; and
(a) Developer. In the case of a notice or communication to
Developer, if addressed as follows:
General Counsel
Bayside Center Limited Partnership
c/o The Rouse Company
10275 Little Patuxent Parkway
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 hours at its principal place of
business in the City of Miami.
(c) City Manaqer. 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 way in respect to any of the
foregoing parties as that party may, from time to time, designate in writing,
dispatched as provided in this Section 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 Lender designated by Developer a
certificate stating that (i) the Lease is in full force and effect and has not
been modified, supplemented or amended in any way, or, if there have been
modifications, the Lease is in full force and effect as modified, identifying
such modification 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 shall so state; (iii) the dates on which the term of this Lease
commenced and will terminate; (iv) all conditions under the Lease to be
performed by the City or Developer, as the case may be, have been satisfied
and, as of 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,
- 97 -
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 are intended to or shall be merged by reason of
any deed (i) transferring Developer's leasehold estate in the Leased Property
and 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 successors or assigns, and any such deed shall not be deemed to affect or
impair the provisions and covenants of this Agreement.
1
Section 12.8. Titles of Articles and Sections. Any titles of the
several parts, Articles and Sections of this Agreement are inserted for
1
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 constitute one and the same instrument. This Agreement shall become
effective only upon execution by delivery of the parties hereto and execution
and delivery of all Exhibits referred to in Section 1.1.
Section 12.10. Successors and Assigns. Except to the extent limited
elsewhere i`ln- this Lease, all of the covenants, conditionsp land obligations
r, �.'Cln �:� �n � i � .^�m� � t.�_'``�„� tt't••. �� (' }��-a. t' 1�Sf�\(� �.0,� •}r :'i!�;.
- 98 -
contained in this Lease shall be binding upon and inure to the benefit of the
respective successors and assigns of the City and the Developer..
IN WITNESS WHEREOF, ROUSE -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, duly attested to by its Assistant
Secretary and its corporate seal to be hereunto affixed, and the CITY
COMMISSION OF MIAMI has caused this Lease Agreement to be signed in its name
by" Randolph Rosencrantz, the City Manager, and duly attested to by Ralph G.
Ongie, the City Clerk, on the day and year first hereinabove written.
ATTEST:
Ass`~ of Secretary
[Corporate Seal]
ATTEST
D r.�q
Ral �Ongie, City Zlerk
APPROVX AS TO
CORR NESS
LUCIA ALLEN DOUGH RTY O
CITY ATTORNEY
602F/22A
BAYSIDE CENTER LIMITED PARTNERSHIP
By: ROUSE -MIAMI, INC., general partner
By
ice -Pres dent
THE CITY OF MIAMI, A MUNI PAL CORPORA-
TION OF THE STATE OF F OR
By
C�1ty Man r-/ "
- 99 -
STATE OF ='nnoT� ^ )
COUNTY OF
I, an officer authorized to take acknowledgments, HEREBY CERTIFY that
on this n{� day of December, 1984, personally appeared before me,mE<;'�-
y� and ,-) i )! . •`�} r 1 L , known to me to be the C/ c� J�� „�,� and
Assi t nt Secretary, respectively, of ROUSE -MIAMI, INC , a Florida
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 aforesaid 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 F�2da-at-t r.ge
My Commission Expires:
STATE OF FLORIDA )
COUNTY OF DADE )
January, 1985
I, an officer authorized to/take acknowledgments, HEREBY CERTIFY that
on this day of Beeeffibef,--19$x, personally appeared before me RANDOLPH
ROSENCRANTZ and RALPH G. ONGIE, known to me to be the City Manager and the
City 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
and year last aforesaid.
602F/22A
offici -,in sad City and ate the day
Notary Hubi1c, State or t-lor at Large
My Commission Expiti0,5r"I","
1937
- 100 -
STATE OF FLORIDA )
COUNTY OF DADE )
CITY OF MIAMI )
I, RALPH G. ONGIE,-Glerk of the City of Miami, Florida,
and keeper of the records thereof, do hereby certify that the
attached and foregoing pages numbered i through v and 1 through
100, inclusive, contain a true and correct copy of the "Lease
Agreement" between Bayside Center Limited Partnership and City
of Miami,concerning Parking Garage and dated January 14, 1985,
which incorporates the hereinbelow described Exhibits:
1. Exhibit G, List of events.
2. Exhibit A-1, Survey.
3. Exhibit A-3, Site Plan.
4. Exhibit B-1, Legal Description of Garage parcel, pages
numbered 1 through 2.
5. Exhibit B-2, Legal Description of Area A-4.
6. Exhibit B-3, Legal Description of Area A-5.
7. Exhibit B-4, Legla Description of Area B.
B. Exhibit D, Agreement of Guaranty, pages numbered 1 through 2.
9. Exhibit F, List of Approved Concept Plans, pages numbered
1 through 10, inclusive.
10. Exhibit H, Minority Participation Agreement, pages numbered
1 through 19, inclusive.
11. Exhibit I, The Design Development Plan for Restaurant in
Area 4.
12. Exhibit J, Survey Showing All Easements and Utilities Located
at the Leased Property.
13. Exhibit K, Maintenance Responsibility Plan.
IN WITNESS WHEREOF, I herunto set my hand and impress the official
seal of the City of Miami, Florida, this 19th day of April, 1985.
( S E A L )
RALPH G. ONGIE
CITY CLERK
` CITY OF MIAMI, FLORIDA
Sy is M. Men oza o
Deputy City Clerk
EXHIBIT G
Days
Event '
0
Fully negotiated executed documen-
tation
30
Complete refinement of conceptual
design with City
90
Financing commitments obtained
120
Approval of Financing, and Pre-
liminary plans to City for approval
including City departments review
and approval
135
City Approval including City
departments of preliminary plans
225
Complete review of final plans with
City
240
City approval including City
departments approval of final plans
and Issuance of Building Permits
250
Corps of Engineers landfill on
Retail Parcel complete, Demolition
of ' Auditor.ium complete, and
Possession Date
305
Rouse and City commence
construction
730 Infrastructure Vsubstantially
complete
790 Bayfront Park improvements
substantially complete
850 Parking Garage open to public and
Rent Commencement Date
1544F/452A
7420r
FIRST AMENDMENT OF AGREEMENT OF LEASE
THIS FIRST AMENDMENT OF AGREEMENT OF LEASE (here-
inafter referred to as "this Amendment"), made this Iq'A-
day of October , 19859 b and between BAYSIDE CENTER
LIMITED PARTNERSHIP, a Ma land limited partnership (here-
inafter referred to as " eveloper"), and THE CITY OF
MIAMI, a municipal corp ration of the State of Florida
(hereinafter referre to as "the CITY"), acting by and
through the CITY MA AGER (hereinafter referred to as "the
City Manager"), an with the prior approval of the City
Commission of Miami.
WITNESSETH, THAT WHEREAS by an Agreement of Lease
dated January 14, 1985, by and between the Landlord and
the Tenant (hereinafter referred to as "the Lease"), the
Landlord has leased to the Tenant all of that real prop-
erty, situate and lying in the City of Miami, Dade County,
Florida, which is described therein for the development of
a certain parking facilities; and
WHEREAS the parties hereto desire by this Amend-
ment to amend the provisions of the Lease,
NOW, THEREFORE, FOR AND IN CONSIDERATION of the
mutual entry into this Amendment by the parties hereto,
and for other good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged by each
party hereto, the parties hereto hereby agree as follows:
Section 1. Amendment of Lease. The provisions
of the Lease are hereby amended in the following manner:
1.1. Under Section 1.2. of the Lease, delete the
Defined Term "Lender" in its entirety and insert the
following in lieu thereof:
""Lender" and "Leasehold Mortgagee"
Shall have the meaning ascribed to these
terms in the subclause (b) of Section 6.1
and shall be used interchangeably."
1.2. Under Section 1.2 of the Lease, add the
following sentence at the end of the definition for
"Refinancing":
"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
f
1
obtained by Developer to finance its
development and construction obligations
hereunder."
1.3. Under Section 2.2(c) of the Lease, add the
following sentence to the end of this subsection:
"Developer agrees to cause the Parking
Garage located on the Garage Parcel to be
operated as a public parking garage in
accordance with this subsection (c)."
1.4. Under Section 2.3 of the Lease, delete the
semi -colon at the end of subparagraph (v) of Section
2.3(b) and add the following new subparagraph (vi) to
Section 2.3(b):
"and (vi) non-exclusive right and easement
between the Retail Parcel and the Leased
Property for the construction, installation
use and maintenance 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 which
to be split equally between the Developer and
the lessee under the Retail Ground Lease."
1.5. Under subparagraph (1) of Section 2.3(c) of
the Lease, delete the phrase "consent of Dade County Water
and Sewer Authority" in the fourth and fifth lines and
insert in lieu thereof "consent of the City".
1.6. Under Section 2.5 of the Lease, delete the
first two sentences of clause (d) in their entirety and
insert the following in lieu thereof:
"Rental shall commence to accrue on the Rent
Commencement Date. Annual Basic Rental shall
be payable in equal monthly installments in
advance on the first day of each full
calendar month following the Rent Commence-
ment Date, during the term of this Lease,
the first such payment to include also any
prorated Annual Basic Rental for the period
from the Rent Commencement Date to the first
day of the full calendar month thereafter.
Annual Additional Rental and Annual
Percentage Rental shall be determined each
calendar quarter and annually pursuant to
the reports required under Section 2.5(e)
with adjustment to occur based upon each
Rental Year one hundred twenty (120) days
after each Rental Year."
- 2 -
1.7. Under Section 2.6 of the Lease, delete the
phrase "in the same manner and to the same extent as if
the same, together with the improvements thereon, were
owned in fee simple by Developer" appearing the the ninth
and tenth lines.
1.8. Under Section 5.3 of the Lease, delete the
phrase "subparagraphs (a) through (j)" in the introductory
paragraph and insert in lieu thereof "subparagraphs (a)
through (k)" and insert the following new paragraph (k)
under Section 5.3:
"(k) Any Transfer of any limited part-
ner'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
the City Commission pursuant to subparagraph
(f) above or to another partner of Developer
as a result of default in repayment
of a capital contribution loan."
1.9. Add the following new sentence to Section
5.8 of the Lease:
"Notwithstanding the foregoing, in the case
of a permitted Transfer of a limited part-
ner's interest under subparagraph (k) 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."
1.10. Under clause (b) of Section 6.1, add the
following phrases:
(a) Add the phrase "or any holder or of
industrial development revenue bonds" in the eighth line
at the end of the definition for "Institutional Investor",
(b) Add the phrase ", security agreement or
financing agreement in the case of issuance of industrial
development revenue bonds," after the words "deed of
trust" in the definition for "Leasehold Mortgage" in the
ninth line and
- 3 -
(c) add the phrase "or creates a security
interest in the Improvements in the case of the issuance
and sale of industrial development revenue bonds" at the
end of the definition for "Leasehold Mortgage" in the
twelfth line, and
(d) Add the words "and "Leasehold
Mortgagee"" after the word "Lender" in the twelfth line.
1.11 Exhibits A-1, A-21 A-31 B, C, 0, E, F, G
and H to the Original Lease are deleted in their entirety
and the attached new Exhibits A-1, A-21 A-3, B, C, 0, E,
F, G and H are substituted in lieu thereof for each
respective exhibit.
Section 2. Effect of this Amendment. Except as
is hereinabove set forth, the provisions of the 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 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 Agree-
ment 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:
l
Assts a t ecteta
[Corporate Seal]
ATTEST:
MAtty Hirai, City Clerk
- 4 -
BAYSIDE CENTER LIMITED PARTNER-
SHIP, A MARYLAND LIMITED
PARTNERSHIP
By: ROUSE -MIAMI, INC., A MARYLAND
CORPORATION, GENERAL PARTNER
By:
Vice President
THE CITY OF MIAMI, A MUNICIPAL
CORPORATION OF THE STATE OF
FLORID
By.
Sergio Pereira,City anager
APPROVED AS TO FORM AND
CORRECT S:
LUCIA ALLE)q DOUGHERTY� OJAI
CITY ATTORNEY
STATE OF
COUNTY OF
I, an officer authorized to take acknowledgments,
HEREBY CERTIFY that on this day of , 1985,
personally appeared before me and
, 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.
My Commission Expires:
375A
- 5 -
Notary Public, State of Maryland
STATE OF FLORIDA )
COUNTY OF DADE )
I, an officer authorized to take acknowledgments,
HEREBY CERTIFY that on this ZZ day of (CW 1985,
personally appeared before me Sergio Pereira and Matty.
Hirai, respectively, known to me to be the City Manager
and the City 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 said County
and State the day and year last aforesaid.
Notary .
Public, So ate of Flori a
NOTARY PUBLIC STATE Cfgh.�,j r g e
MY CCYMISSIGN EXP. AUG 17.IM
My Commission Expires: BCMDCD IRRU GENERAL I11S. UNO.
375A
asNOV -4 PH 347 858344459
I2690K 159
MEMORANDUM OF LEASE
{PARKING GARAGE PARCEL`LEASEI
THIS SHORT -FORM LEASE AGR(the "Lea-") is made and
r entered into this 17thday of sl1985, by and between THE
CITY OF MIAMI, a municipal corporation of the State of Florida
(the "Lessor"), and BAYSIDE CENTER LIMITED PARTNERSHIP, a
Maryland limited partnership (the "Lessee").
c`.-. W I T N E S S E T H:
That for and in consideration of the covenants herein'con- y
twined on the rt of the parties hereto observed and
pa pa performed,
ndsgarticularly the covenants on the part of the Lessee to pay
the__-;[enta herein reserved and specified, the parties hereto do
herby enter into this Lease, and the Lessor does hereby rent,
16t, lease and demise to the Lessee all those certain tracts or
parcels of land lying and being in the County of Dade, State of
Florida, more particularly described as follows (the "Land")t
See Schedule "A" attached hereto '-
.y
and by this reference made a part, hereof.
together with the buildings and all other improvements presently
located on the Land (the "Demised Premises");
To have and to hold the Demised Premises during the initial
term and the extension periods hereinafter described;
Together with all and singular of the appurtenances, rights,
interests, easements, and privileges in anywise appertaining
thereto;
TERM AND DURATION
A. This Lease shall be for a term of forty-five (45)
years, cornencing on the first day of the month next following
the Possession Date (as said term is defined in the full Amended
and Restated Lease_ Agreement between Lessor and Lessee described
below).
B. Lessee is hereby given the option to extend the term of
this Lease for up to two, (2) additional terms (each called a
"Renewal Term") of fifteen (15) years each by giving written
notification_ to Lessor not less than six (6) months before the
data on which such Renewal Term is to commence.
THIS INSTRUMENT IS A SHORT -FORM OF THAT CERTAIN LEASE AGREE-
' EN,T DATED_JANUARY 14, 1985 AS AMENDED BY FIRST AMENDMENT TO
SASE AGREEM1rtVT DATED OCTOBER ,"J , 1985 BETWEEN LESSOR AND
LESSEE��u3TiHICH IS HEREBY INCORPORATIff BY REFERENCE AS IF FULLY SET
�,NRTH�yiiERLl N, IN THE EVENT OF ANY CONFLICT BETWEEN SAID FULL
LEASEx►$ID THE BALANCE OF THIS MEMORANDUM, SAID FULL LEASE. SHALL
GOVER.. {REFERENCE SHOULD BE MADE TO THE FULL LEASE WHICH FURTHER i
DEFI,HES�"THE1RICHTS AND OBLIGATIONS OF THE PARTIES.
rRAS`MORz:',k.ULLY SET FORTH IN THE LEASE, LESSOR HAS GRANTED TO
LESSEE;`CERTA`IN-"-EASEMENT$ OVER THE PROPERTY DESCRIBED IN SCHEDULE
"9 ;,A�TT_A QHEPIw.RERETqAND MADE A PART HEREOF.
AS'LY_
SET LY SET FORTH IN THE LEASE, PRIOR TO THE EXPIRA-
TIOPf OR. TEAMINATION.OF .THE LEASE, TITLE TO THE BUILDINGS AND
r+ s
Th���;i��r�gtpcepaxsd: by Steven E. Goldman, Esq. of
ziii
F�sl!i7NbporrwwM. urorr. wp ac" a o •c"TcL. «.A qfi� 4
'�i *�IA._h •9r `i($t.(M ORCA �i�� •ct,t ««OMK (30 �� f1aOfoO 1,
1k11E1C_.1269ON I M
IMPROVEMENTS CONSTRUCTED UPON THE LAND BY LESSEE SHALL NOT VEST..
IN LESSOR BY REASON OF ITS OWNERSHIP OF FEE SIMPLE TITLE TO THE
-LAND, BUT TITLE TO SAID BUILDINGS AND IMPROVEMENTS SHALL REMAIN -
IN LESSEE. IN ADDITION, IF THE LEASE SHALL TERMINATE PRIOR TO f
THE XPIRATION OF THE TERM THEREOF, AND IF, NT THAT TIME, ANY
jL,,jSEHOLD-MORTGAGEE (AS DEFINED IN THE LEASE), HALL EXERCISE ITS
O ION TO:, OBTAIN A NEW LEASE FOA THE REMAINDER OF THE TERM OF ,
LASE: TITLE TO SAID BUILDINGS AND IMPROVEMENTS SHALL AUTO-
hlAL.hAALLT,TASS TO, VEST IN AND BELONG TO SUCH LEASEHOLD. MORTGAGEE v
OEt`ANY'.DESIGNEE OR NOMINEE OF SUCH LEASEHOLD MORTGAGEE PERMITTED
.QN6$R:,�THE: LEASE, UNTIL. THE EXPIRATION OR SOONER DETERMINATION OF
TBE+ TERM -.OF SUCH NEW LEASE.
All persons are put on notice that no person furnishing
ato_r-, services or materials in connection with repairs or
ainpcovements to the property demised by the Lease shall be
entitled to any lien or other claim against Lessor's interest in
the property demised by the Lease unless such person has a direct u
contract with.Lessor. ;
IN WITNESS WHEREOF, the parties hereto have executed this
instrument the day and year first above written.
Signed, sealed and delivered
in the presence of:
0
LESSOR:
THE CITY OF MIAMI, a municipal
corporation of the State of
Florid
By:
SE IO PEREIRA, Ci�,1�1ger
(SEAL)
LESSEE:
BAYSID£ CENTER LIMITED PARTNER-
SHIP, a Maryland limited
partnership
By: ROUSE -MIAMI, INC., a
Maryland corporation,
General Partner
By:
APPR D,:;A 0 FORM AND CORRECTNESS:
UGHERTY
djt Attorney
...Vfjtn �+..�...�eo.
- 2 -
.NOf►MAN. 61►o/r. "SeN L OViNTt I. r A
II; ILOW;6A 33131 • Tt4iPMONt (300) »O'OfoO
h,L 12690K 161
STATE OF FLORIDA
SS;
COUNTY OF DADE
The folpgoing,inst.rument was
acknowledge-' befoie me this
day of JW��. 1985 by SERGIO
PEREIRA, as ty Manager of TqE
CITY OF MIAMri a municipal corporation of the state of Florida.
�
( PB
NIC
My Commission expires;
WANY ftKIC VATS OF FLWMA......
Ay
CMISSIall (P. AV& 27j"s
loan too 16expAt Jim. M.
(NOTARIAL
STATE OF LF1
ArVI. SS:
COUNTY or D"s
5'* r up'
The foregoing in e was
me
acknowledged e me this
before
day of 9VM4WWk, 1985, b
OCtober as
s
�j 0 USE -MI I' INC., a
Maryland corporation, on bheha 0
salt corporation,
ati on�Mas General
Partner on behalf of BAYSIDE CENTER LIMITED PARTNERSHIP, a
Maryland limited partnership.
My Commission expires:
NOTARY PUBLIC--
"
(NOTARIAL SEAL
ar-04, Liporr. most" a Que.4 TCL. P A
rLCO410A 3313- - Tt"P-OWC (305) 5?9.0200
a
Cif.
WIC. 12RK 162
SCHEDULE A
LEGAL DESCRIPTIGN
UA .44 ; PAett;tL
Commence at the northeast corner of Block 61. North of
st. the. •A.. L..RNOWLTOW MAP OF MIAMI, as recorded in. Plat Book 'B'
at Page,':41 of, the P8blic Records of Dade County, Floridan
thence' run 'North 89 58'18' East &long the Easterly prolongation
of. the -Northerly line of Block 61 North of said A. L. KNOWLTON.
l4Ax'..0 MI -AMI -for a distance of 703.43 feet to a points thence
rv'n:5outh:00008'11" West for a distance of 100.00 feet to a
point of ,intersection with the South line. of Part Boulevard
6s!,recorded in Official Records Book 6811 at Page.24O of the
Putil.ic Records of Dade County, Florida; said point being the
Point of Begsnning of the parcel hereinafter described; thence
run -South 00 08'11' Kest f$r a distance of 181.09 feet to a
point; thence run South 89 51'49" Eagt for a distance of 23.83'
feet to a point] thence run South 00 08'11" West for a distance of
41.50 feet to a point;
F'
thence run North
8951'49'
West for a distance of 23.83
feet to a point; thence
run South
00°08'11' Nest f&r a distance
of
174.50 feet to a
rl point; thence
run South 89 51149' Ea$t
for
a distance of 23.83'
feel, to a
point; thence run South 00 08111"
Wsst for a distance
of 41.50 feet
to a point; thence run North
89 51'49" West for
a distance
of !79.515 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 or 15727 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 North 16 51'29" West
along said line parallel with the City Monument line for a
distance of 338.56 feet to a point; thence run North 1257'37"
West for a distance of 7.35 feet to a point of intersection
wi8h the South line of said Port Boulcvaru; thence run North
39 01`19' Last along the South line of said Port Boulevard for
a distance of 65.42 feet to a point o; curvature oC a ctirve
concave to the South having a radius of 210 f;�ot; thong
;lortheasterLy and castc:17 along ::aid curve thr,ugh a ccntr.il
angle of 50 56'59" for an arc dintanco of 193.0: feet to a
a>oint of tangency; thence continue, along thin :south line of ,raid
Tort boulevard No 09°50'10" Eaut for a diot:u•co of 203.50'
;. ct -to the Poi;it of Beginning; cuntaininri 3.7772 Acreu tuur-
>t•' -oi leas .
-1-
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C `lh
OFF.1269opC
h1c. 163
LEGAL DESCRIPTION
AREA "B"
CPC
,Commence at the Northeast corner of Block 61 North of the
A. L. KNOWLTON MAP OF MIAMI, as recorded in Plat Book "a"
at Page 41 of the Psblic Records of Dade County, Florida;
thence run North 89 5811.8" East along the Easterlyprolongation
of:-therly line of -Block 61 North of said A. L. KNOWLTON
W OF:MIAMI'for a distance of 184.07 feet to the Point of
Beginning of the parcel hereinafter described; thence run
Swth,.-94.26129.4 East for a distance of 254.19 feet to a point
of intersection with the -South line of Port Boulevard as
recoroid in Official Records Book 6811 at Page 240 of the
P68,lic Records of Dade County, Florida; thence run North
39$01'19" East along the South line of said Port Boulevard for
a distance.of 65.42 feet to a point of curvature of a curve
concave to the South having 4 radius of 218 feet; thence run
Northeasterly and Easterly along said quTve through a central
angle of 50 56'59.5" for an arc distance of 193.85 feet to a
point of tangency; thenSe continue along the -South line of said
Port Boulevard North 89 58'18" East for a distance of 835.90
feet, more or less, to a point of intersection with the U. -S.
Harbor Line of 1930 as shown on the plat of METROPOLITAN DADE
COUNTY BULKHEAD LINE as recorded in Plat Book 74 at Page 3 of
thS Public Records of Dade County, Florida; thence run North
00 15'53* Cast along the said U. S. Harbor Line for a distance
of 270.00 feet to a point of intersection with a line 170 feet
North of and parallel with the Easterly prolongation of the
Northerly line of Block 61 North of said A. L. KNOWLTON MAP OF
MIAMI; thence run South 89058'18" West along said parallel line
for a distance of 1230.02 feetto a point of intersection with
a line 130 feet Easterly of and parallel with the City Monument
Line of Biscayne Boulevard betwsen N. E. 6th Street and N. E.
7th Street, thence run South 24 26'29" East for a distance of
186.69 feet to the Point of Beginning, containing 7.526 acres,
more or less.
CPC
w.12690F 164
SCHEDULE B
qk' BAYFRONT PARK LEGAL DESCRIPTION
Tj
Cp,
A subdivision of the Jamey Hagan donation (Section 37) township
`, 54 South, range 42 East being more particularly described as
follows: commerce at the intersection of the City monument line
o-.. of Biscayne Boulevard (North), and S.E. 2nd Street, said paint
being approximately 99 feet easterly of the southeast corner of
'. block 127 N of A.L. Knowlton's map of Miami, as shown on the plat
of "Block 127 N and portion of 120 N" as recorded in plat book 25
at page 75 of the public records of Dade County, Florida; thence
run S 89'59,55" E along the said city monument line of S.E. 2nd
street and its easterly prolongation thereof for a distance of 30
feet to a point; said point being the P.O.B. of the hereinafter
described tract of land; thence in a northerly direction
meandering along a line 30 feet easterly of and parallel with the
City monument line of Biscayne Boulevard, said line being the
easterly right-of-way line of said Biscayne Drive as shown on the
A.L. Knowlton map of Miami as recorded in plat book "B" at page
41 of the public records of Dade County, Florida, a distance of
2715 feet more or less to the intersection with the easterly
prolongation of the northerly lire of block 61 north of said A.L.
Knowlton map of Miami; thence N 89'5818" E. along the easterly
extension of said northerly line of block 61 north for a distance
of 1284.84 feet :more or less to a point of intersection with the
� U.S. harbor line of 1939 as shown on the plat of Metropolitan
Dade County bulkhead line as recorded in Plat Book 74 at page 3
E�:12690N 165
of the public records of Dade County; thence run as 0015153" u
along said U.S. Harbor line for a distance of 85.00 feet to a
point; thence run S 67"54'07" E along the Je County bulkhead
line as recorded in plat book 74 at page 18 of the public
records for a distance of 747.04 feet to a point; of intersection
with a lint which is the northeasterly prolongation of the
existing easterly bulkhead of the Mismarina, said bulkhead being
65.00 feet northwesterly of said Dade County bulkhead line (74-
18); thence S 27'17127" W along said bulkhead and its
southwesterly prolongation thereof for a distance of 1519.85 feet
to a point of curvature of a curve concave to the east having a
radius of 100 feet; thence southwesterly and southerly along said
curve through a central angle of 27'01'34" for an arc distance of
47.17 feet to a point of tangency with the existing steel
l
bulkhead along 815cayne Hay; thence S 0015'53" W along said steel
bulkhead for a distance of 363.73 feet to a point of curvature
with a curve concave to the west having a radius of 200 feet;
thence southerly and southwesterly along said curve through a
center angle of 33'07'23" for an arc d7stance of 115.62 feet to a
point of reverse curvature with a curve concave to the east
having a radius of 200 feet; thence southwesterly, southerly and
southeasterly along said curve through a central angle of
66`14.46" for an arc distance of 231.24 feet to a point of
reverse :urvature with a curve concave to the west having a
a:
t radius of 200 feet; thence southeasterly and southerly along saiD
' curve through a central angle of 33'07123^ for an arc distance of
115.62 feet to a point of.tangency; thence continue along said
2
9
♦ 3t S_. �v^
F. i OOPG '1%
existing steel bulkhead S 0'15'53" W for a distance of 120.35
feet to a point of intersection with the south property line of
S.E. 2nd.Street (Chopin Plaza), said line also being the
northerly property line of tract "D" of Dupont. Plaza as recorded
in plat book 50at page 11 of the public records of Dade County,
Florida, thence N 89059156" W along said northerly lint of Dupont
Plaza and its westerly prolongation thereof for a distance of
804.14 feet to a point of inttrssction with a line that is 30
f*Qt tasterly of and parallel with the City monument line of
Biscayne Boulevard (north): thence N 005148" E for a distance of
25.00 feet to the P.O.R
Less and except therefrom the property described in Schedule
"A..
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ElCBARD P. BRINXim
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5K/orw (ll) 7(14/8K ?LL1437/DAA
SECOND AMENDMENT TO BAYSIDE PARKING GARAGE LEASE AGREEMENT."
THIS SECOND AMENDMENT TO BAYSIDE PARKING GARAGE LEASE
AGREEMENT ("Second Amendment") made as of this !-3 '�� day
of 1988, by and between BAYSIDE CENTER LIMITED
PARTNERSHIP, a Maryland limited partnership (hereinafter referred
to as "Developer"), and the CITY OF MIAMI, a municipal corpora-
tion 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 I T N E S S E T H:
On January 14, 1985 the parties hereto entered into
that certain Lease Agreement with respect to the Bayside
Specialty Center Parking Garage, which the parties hereto amended
by execution of that certain First Amendment dated October 17,
1985 (the Lease Agreement as amended by the First Amendment
hereinafter collectively referred to as "the Lease").
On July 21, 1987 Dade County, Florida, (hereinafter
referred to as "County",- and the City entered into an Agreement
for the conveyance of a portion of Area B shown on Exhibit A-1
and described in Exhibit I attached hereto and made a part hereof
(hereinafter called "New Port Boulevard Bridge Parcel") from the
City to the County.
Ony �YY/ , 1988, the County, City and
Developer enters irfto an Agreement ("Tri -Party Agreement")
whereby Developer agreed to release any leasehold interest as
applicable in the New Port Boulevard Bridge Road under certain
circumstances which include, wthout limitation, the recording of
certain development restrictions governing future development of
the New Port Boulevard Bridge Parcel.
Pursuant to the Tri -Party Agreement, the parties desire
and Developer affirms that Developer releases any leasehold
interest as applicable in the New Port Boulevard Bridge Parcel
that the Lease be revised to delete all obligations of Developer
and City related to the Area B Surface Lot, and to further
clarify certain terms and conditions of the 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 Lease. The Lease is hereby amended in
the following respects:
Paragraph I.I. Insert the following new defined terms
to Section 1.2. (Defined Terms):
"County" means Dade County, Florida.
"Grand Prix Easement" means that certain Easement
Agreement dated ()c/x�idj , 1988 by the County to the City
over portions of Area Bor the purpose of conducting grand prix
races or similar events, which easement is recorded in the public
records of Dade County, Florida.
"New Port Boulevard Bride Parcel" means that certain
portion of Area B conveyed by the Port Boulevard Bridge
Right -of -Way shown on Exhibit A-1 and described in Exhibit I.
"New Port Boulevard Bride Deed" means that certain
Revised Quitclaim Deed from the City to the County
dated Ocfiho S , 1988 and recorded in Clerk's File No.
in the public records of Dade County, Florida, fee interest in a
portion of Area B shown on Exhibit A-1 and described in Exhibit
I.
"Tri -Party Agreement" means that certain Agreeme t
between the County, the City and Developer datedAk,6Y)/-rYf
1988 recorded in the public records of Dade Count ,OPI rida
governing, among other things, the future development of the New
Port Boulevard Bridge Parcel.
"1951 Port Boulevard Bridge Easement" means that
certain easement dated March 24, 1961 from the City to Dade
County, Florida and recorded on April 12, 1970 in Clerk's File
No. 70-R-59580 in the public records of Dade County, Florida
shown on Exhibit A-1."
/Paragraph 1.2. Section 2.2(c) (Permitted Use for
Leased Property) of the Lease is hereby amended by deleting the
period at the end and adding the following:
"and for public open space on Area B."
/Paragaph
1.3. Section 2.3(b) (Easements Granted to
Developer) ofe Lease is amended by deleting the words "Surface
-2-
Lot" in the; third line of clause (v).
Paragraph 1.4. Section 2.5(b) (Continuous Operation)
of the Lease is amended by deleting the phrase "and Area B
Surface Lot" appearing in the first and second sentences and
delete the phrase "or Area B Surface Lot" in the third
sentence.
4aragraph 1.5. Section 3.1 (Improvements to be
Designed by Developer) of the Lease is herby amended by deleting
the phrase "and Area B Surface Lot" in the first sentence, in the
fifth sentence and the last sentence of the first paragraph.
✓Paragraph 1.6. Section 3.4 (Facilities to be
Constructed) of the Lease is hereby amended by deleting the
phrase "and Area B Surface Lot" appearing in the second line.
Paragraph 1.7. Section 3.7 (Construction Period) of
the Lease is hereby amended by deleting the phrase "and Area B
Surface Lot" appearing in the second line.
,j Paragraph 1.8. Section 3.9 (Certificate of Final
Completion) of the Lease is hereby amended by deleting the phrase
"and Area B Surface Lot" appearing in the second line.
%Paragraph 1.9. Section 8.1(a) (Developer to Discharge
Mechanic's Liens) of the Lease is hereby amended by adding the
following Section at the end of subsection (a): "Notwithstanding
anything to the contrary in this Section 8.1., the Developer's
obligations under this Section 8.1 as to Area B shall apply if
and only to the extent the mechanic's liens are filed as a result
of construction work related to the Improvements constructed by
Developer."
/Paragraph 1.10. Section 10.2 (Partial Taking of Leased
Property by Condemnation) of the Lease is amended by adding the
following sentence at the end of clause (a): "Notwithstanding
the foregoing, Developer hereby waives its rights to proceeds
received by the City under the New Port Boulevard Bridge Right -
of -Way."
/Paragraph 1.11. The Lease is hereby amended by adding
the following new Section 12.11:
"Section 12.11. Port Boulevard Bridge and Elimination
of Area B Surface Lot. Notwithstanding anything to the contrary
in this Agreement, upon conveyance to the County of the New Port
Boulevard Bridge Parcel pursuant to the New Port Boulevard Bridge
Deed, Developer is released of any and all of its obligations
related to the Area B Surface Lot, including without limitation,
the construction, operation and maintenance of the Area B Surface
Lot, except as otherwise provided in this Lease or in the Tri-
-3-
Party Agreement. Developer's acknowledgment of a consent to the
Grand Prix Easement or the 1961 Port Boulevard Bridge Easement
shall not be deemed to be a consent by Developer to any
amendments or modifications thereto. --,,City agrees not to
terminate or modify the restrictions on-4se set forth in the
Deed.
Paragraph 1.12. The Survey attached as Sheet 2 of
Exhibit A-1 is hereby deleted and the attached Sheet 2 of 2 of
Exhibit A is inserted in lieu thereof to effectuate the release
of Developer's leasehold interest in the New Port Boulevard
Bridge Parcel.
Paragraph 1.13. The legal description of Area B
attached as Exhibit C is hereby deleted and the attached Exhibit
C is inserted in lieu thereof to effectuate the release of
Developer's leasehold interest in the New Port Boulevard Bridge
Parcel.
Paragraph 1.14. The legal description of the New Port
Boulevard Bridge Parcel is attached hereto as Exhibit I and made
a part of this Lease.
2. Effect of this Amendment. Except as is hereinabove
set forth, the provisions of the Lease shall hereafter remain in
full force and effect, as if this Second 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 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 Lease
Agreement to be signed in its name by Cesar Odic, 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
Suzanne Virby,
Assistant Secretary
-4-
By: ROUSE -MIAMI, INC., A
Maryland Corporation,
General artner
By: ( v
J es F. Dausch,
ce-President
[CORPORATE SEAL]
ATTEST:
RAI, City Clerk
APPROVED AS TO FORM AND
CORRECTNESS: f
ter-' „�� .
JUGE LDI FEAR NDEZ,
City Attorney
THE CITY OF MIAMI, A Municipal
Corporation arf the State of
Florida
By:
Cesar Odio, City Manager
-5-
STATE OF yi%CC >.< I
9
COUNTY OF
I, an officer authorized to take acknowledgments, HEREBY
CERTIFY that on this 'a261A day ofce, 1988,
'
personally appeared before me JAMES F.AACH 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.
L
Notary Public,
State of Maryland
My Commission Expires:-/-/- yv
CONSENT
SUN BANK (N.A.), Trustee under that certain Trust
Indenture dated as of October 1, 1985 and does hereby consent to
the foregoing Second Amendment to Lease Agreement and agrees to
be bound thereby.
SUN BANK (N.A.)
By:
Camil e Moore, Trustee
I, an officer authorized to take acknowledgments,
HEREBY CERTIFY that on this,`' r day of }�{.f�;�, 1988,
be ore personally appeared bore known to
me to be the; ; ,-_��� ".f��� �.�;,_ a s6h BANK (�.A. ) and known
to me to be th4 person who e'$ecuted 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.
Notary Plt�lic
State of 'J&L
Notary pnhF.c, (.tate of Horrda
My Commission Expires March 15, 1991
My Commission Expires: 90n10d rhfu Noy gid" mn-t•
-7-
CONSENT
CONNECTICUT GENERAL LIFE INSURANCE COMPANY, Mortgagee
under that certain Mortgage Consolidation, Modification and
Extension Agreement dated December 3, 1987 and recorded under
Clerk's File No. 87R-457717 in the public records of Dade County,
Florida and does hereby consent to the foregoing Second Amendment
to Lease Agreement and agrees to be bound thereby.
CONNECTICUT GENERAL LIFE
INSURANCE COMPANY
By: CIGNA Investments, Inc.
By
Name: Robert E. Peterson
Its: Vice President
I, an officer authorized to take acknowledgments,
HEREBY CERTIFY that on this 15th day of July 1988,
personally appeared before me Robert E. Peterson , known to
me to be thec. Preqident of CIGNA INVESTMENTS, INC., an
authorized age t for CONNECTICUT GENERAL LIFE INSURANCE COMPANY
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: /31/89
-8-
('ary Pub is Gayle A. Brown
State of Connecticut
Zz'
Z)NLI UHUV SURVEY
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.04 act
•
AREA "B"
BAYSIDE CENTER LIMITED PARTNERSHIP
�MEJ:L BROWNELL r. ASSOCIATES, INC.
lo
s3a)
THIRD AMENDMENT TO BAYSIDE PARKING GARAGE LEASE AGREEMENT,
THIS THIRD AMENDMENT TO BAYSIDE PARKING GARAGE 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 corpora-
tion 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 I T N E S S E T H:
On January 14, 1985 the parties hereto entered into
that certain Lease Agreement with respect to the Bayside
Specialty Center Parking Garage, which the parties hereto amended
by execution of that certain First Amendment dated October 17,
1985 and the Second Amendment dated September 13, 1988 (the Lease
Agr_eement_as—amended_.hy the First Amendment and the Second
Amendment hereinafter collectively referred to as "the Lease").
The City and Developer desire to make certain changes
to the Lease so that the Lease will be consistent with the Retail
Lease (as such term is defined in the Lease) and certain other
changes 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 Lease. The Lease is hereby amended in
the following respects:
Paraaratoh 1.1. Clause (h) of Section 5.3 (Transfers)
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.
Paraurauh 1.2. Clause (k) of Section 5.3 (Transfers)
of the Restated Lease is amended by inserting the phrase "or
lending institution" after the phrase "made by another partner"
appearing in the third and fourth line.
Paragraph 1.3. Section 5.8 (Minority Participation in
Ownership) 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 partner's interest -under
subparagraph (k) 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
transferring limited partner's 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."
Paragraph 1.4. Section 9.1(d) (Liability Insurance)
the Lease is amended by deleting the second sentence and
inserting the following in lieu thereof: "Such insurance shall
afford protection to at least the combined single limit for
bodily injury and property damage liability of $5,000,000 per
occurrence but no less than the minimum amount required by any
Le.a s eho l d_Mortg ag e . '1
of
2. Effect of this Amendment. Except as is hereinabove
set forth, the provisions of the 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 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 Lease
Agreement to be signed in its name by Cesar H. Odio, the CITY
-2-
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
By: ROUSE -MIAMI, INC., a
Maryland Corporation,
General Partner
RICHARD E. GALENA L LA TA,^ J .
Assistant Secretary Vice -President
[CORPORATE SEAL]
ATTEST:
THE CITY OF MIAMI, a Municipal
Corporation of the State of
Florida
q� ;ler:By
ty�C CESAR H. ODIO, City Manager
APPROVED AS TO FORM AND
CORRECTNESS:
_n
QU
A JO , III,
City Attor
-3-
STATE OF )
) ss.
COUNTY OF )
I, an officer authorized to take acknowledgments, HEREBY
CERTIFY that on this 5- �, d ay of , 1993,
rrsojnlly ap eared before me �Q/c,� and
j. , known to me to Aethe ce 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.
! Not Public,
State of Maryland
My Commission Expires:
l
STATE OF e___0 /2--/
) ss.
COUNTY �} )
I, an officer auhoriz to t e acknowledgments, HEREBY
CERTIFY that on this,"/` -'ay of _ , 1993,
person 1 appear�l�fore me s�� � �l�i v and
&e4�� ��known to e o be the City Manager
and C erl k, 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 offi 'a s 1 in sa' Cou ty and
State the day and year aforesai .
�GIIG
Notary Pub 11
State of Florida
My Commission Expires:
ROMY PUBLIC STATS Or FLORIDA
MY MMMISSION EXP. APR.2U 9S4
BONDED 11W GENERAL INS. Un.
CONSENT
SUN BANK (N.A.), Trustee under that certain Trust
Indenture dated as of October 1, 1985 and does hereby consent to
the foregoing Third Amendment to Lease Agreement and agrees to be
bound thereby.
SUN (N .)
By:
Name: avid A. Ri po
Title: Ass istantli-ce President
I, an officer authorized to take acknowledgments,
HEREBY CERTIFY that on this 21st day of Mav , 1993,
personally appeared before me David A. Rimpo known to
me to be the Assistant Vice President of SUN 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.
Notary Fublic
My Commission Expires:
State -of Fl-orida
County of Oranqe
i �--�L*`ELL
i -;otary Fc;%lc., Sta!e of Florida
/N/,y con m. expiies Apr. 3, 1995
Comm. No. CC 095714
-5-
CONSENT
CONNECTICUT GENERAL LIFE INSURANCE COMPANY, Mortgagee
under that certain Mortgage Consolidation, Modification and
Extension Agreement dated December 3, 1987 and recorded in the
Official Record Book 13498 at page 670 in the Land Records of
Dade County, Florida and does hereby consent to the foregoing
Third Amendment to Lease Agreement and agrees to be bound
thereby.
CONNECTICUT GENERAL LIFE
INSURANCE COMPANY
By: CIGNA Investments, Inc.
By: zo: ' �
Name: '
Title:
I, an officer authorized to take acknowledgments,
HEREBY CERTIFY that on this day of i , 1993,
personally appeared before me •' ' known to
me to be the of CIGNA INVEST,ENTS, INC., an
authorized agent for CONNECTICUT GENERAL LIFE INSURANCE COMPANY
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.
WITNESSmy-hand-andofficia-1-sea-1 insaid-County-and
State the day and year last aforesaid.
My Commission Expires:
JEA.:M, WHITC B
AIYCG1�v.iw, ''UBLI
S T. 30,1997
otar1i Public
State of( -
County of +
JEANNENE M. WHITCOMB
NO LiRY PUBLIC
MY WMM13WN EXPIRES SEP?. 30. 19g7
-6-
FOURTH AMENDMENT TO BAYSIDE PARKING GARAGE LEASE AGREEMENT
(GARAGE PARCEL)
This Fourth Amendment to Bayside Parking Garage Lease Agreement (Garage Parcel)(this
"Amendmenf')is made and entered into this o t day of 2014 ("Effective
Date"), by and between the CITY OF MIAMI, a municipal corporation of the State of Florida
{"C") and BAYSIDE MARKETPLACE, LLC, a Delaware limited liability company, successor
by merger to Bayside Center Limited Partnership ("Developer").
WITNESSETH:
WHEREAS, City and Developer are the current landlord and tenant, respectively, under
that certain Lease Agreement dated as of January 14, 1985, as amended by that certain First
Amendment of Agreement of Lease dated as of October 17, 1985, as further amended by that
certain Second Amendment to Bayside Parking Garage Lease Agreement dated as of September
13, 1988, as further amended by that certain Third Amendment to Bayside Parking Garage Lease
Agreement dated as of April 15, 1993 and as further amended by that certain Release and
Settlement Agreement dated as of December 30, 2008 (collectively and together with any
attachments, exhibits or riders thereto, the "Lease") for certain premises located at Bayside
Marketplace in Miami, Florida, as more particularly described in the Lease (the "Leased
Property"). A memorandum of the Lease was recorded in Book 12690, at Page 159, and
supplemented in Book 13849, at Page 1004, both of the Public Records of Miami -Dade County,
Florida; and
WHEREAS, concurrently with this Amendment, City and Developer are amending certain
provisions of the Retail Area Ground Lease pursuant to the terms of that certain Fourth
Amendment to Amended and Restated Lease Agreement (.Retail Parcel) of even date herewith (the
"Retail Parcel Amendment"); and
WHEREAS, City and Developer desire to modify certain provisions of the Lease on the
terms and conditions set forth herein, subject to approval from the Miami City Commission and
approval of a referendum.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, City and Developer
hereby agree that the foregoing recitals are true and correct, and further agree as follows:
1. Definitions.
All capitalized terms used in this Amendment shall have the definitions ascribed to such
terms in the Lease, unless defined or amended in this Amendment. The term "Lease" shall refer to
the Lease (as defined in the first recital above), as modified by this Amendment. The term "Lease
Term" shall refer to the Original Term (as modified in this Amendment) and any applicable
Renewal Terms. The terms "Subtenant" and "Sublease" shall have the same meanings as ascribed
to such terms in the Retail Area Ground Lease, except that such terms, for purposes of the Lease
and this Amendment, shall pertain to such use or occupancy of any part of the Garage Parcel or the
Improvements located thereon.
2. Original Term.
The Original Tenn, as currently defined in Section 2.1(b) of the Lease, commenced on
December 1, 1985 and is scheduled to terminate on November 30, 2030. The Original Term is
hereby amended and extended such that the Original Tenn now expires on November 30, 2060.
All references in the Lease to the Original Term shall refer to the Original Term as extended by
this Amendment. Within thirty (30) days after the Effective Date, the City Manager and
Developer, upon request of City or Developer, shall execute one or more written memoranda for
the Lease or amendments to any existing memoranda for the Lease in such form as will enable
them to be recorded in the Public Records of Miami -Dade County, Florida setting forth the
beginning and termination dates of the modified Original Terra.
3. Renewal Terms.
(a) Subject to approval of the Ground Lease Referendum (as hereinafter defined) by the
City"s electorate, Section 2.1(c) of the Lease is hereby amended and restated in its entirety as
follows:
(c) Renewal Terms. Developer is hereby granted four (4) options to
renew this Lease (each, a "Renewal Option") from time to time upon the same
terms and conditions, except as otherwise expressly provided in this Lease, for
up to four (4) additional consecutive terms (each called a "Renewal Term"),
with the first three (3) additional Renewal Terms being for fifteen (15) years
each and the final Renewal Term being for eight (8) years, commencing at the
expiration of the Original Term or the previous Renewal Term, as the case may
be. So long as Events of Developer's Default shall not have occurred and be
continuing at the time Developer exercises a Renewal Option, Developer may
exercise each Renewal Option by giving the City express written notice thereof
on or before the latter of (i) the date that is two (2) years before the date on
which such Renewal Term is to commence or (ii) thirty (30) days following
written notice from City advising Developer that Developer has failed to furnish
notice of its exercise of the applicable Renewal Term by the date set forth in the
preceding clause (i), which notice shall state in bold capitalized large font letters
that such notice constitutes the final notice to Developer of its right to exercise
the applicable Renewal Option. Within sixty (60) 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 Public Records of Miami -Dade County setting forth
the beginning and termination dates of the Renewal Term, determined in
accordance with this Lease. The total of all Renewal Terms, if all Renewal
Options are validly exercised, is fifty three (53) years.
(b) Notwithstanding anything in the Lease or in this Amendment to the contrary,
Minimum Base Rental (as defined below) for the first Rental Year of each Renewal Term shall be
reset at Fair Market Rent, as defined and determined in accordance with the terms and conditions
provided in Exhibit "A' attached hereto, and shall not be subject to adjustment by the CPI
Escalation (as defined below).Minimum Base Rental may be increased after the first Rental Year
2
of any Renewal Term by the CPI Escalation, as provided in Section 4(c) below. In no event shall
the Minimum Base Rental for the second, third or fourth Renewal Terms increase by more than
fifteen percent (15%) over the Minimum Base Rental then applicable.
4. Rental.
Section 2.5 of the Lease is hereby deleted in its entirety. From and after the
Effective Date, the only scheduled rental payments ("Rental") due to City under the Lease shall be
the following:
(a) Amount of Rental. Developer covenants that it shall pay to City as Rental for the
Leased Property Minimum Base Rental and Percentage_ Rent (as defined below). Developer shall
pay the monthly Rental to the City of Miami, Department of Finance at the address noted below:
City of Miami
Department of Finance
Attention: Treasury Management/Receipts
444 SW 2nd Avenue, 6th Floor
Miami, Florida 33130-1910
(b) Minimum Base Rental. Minimum Base Rental shall be payable by Developer on
the Effective Date, and thereafter on the first (1") day of each calendar month for the balance of
the Original Term in equal monthly installments. Minimum Base Rental shall initially be $675,000
per annum ("Minimum Base Rental"), as it may be increased by the CPI Escalation, as provided in
Section 4(c) below. Minimum Base Rental for any partial calendar month during the Lease Term
shall be prorated based upon the number of days in the partial calendar month within the Lease
Term against the total number of days in the applicable calendar month. All references in the Lease
to "Annual Basic Rental" shall hereinafter refer solely to Minimum Base Rental, as set forth
herein. City acknowledges and agrees that the CPI Escalation, as provided for in Section 4(c)
below, and the Fair Market Rent adjustments at the commencement of each Renewal Term, as set
forth in Section 3(b) above, shall be the only adjustments to Minimum Base Rental. Commencing
on the date that the First Parking Garage Expansion (as defined below) is open to the general
public for business (the "First Parkina Garage Expansion Openina Date"), Developer shall pay
City additional Minimum Base Rental in the amount of $241,920 per annum (the "Additional
Minimum Base Rental") in equal monthly installments in the manner provided for in this Section
4(b) above. If the First Parking Garage Expansion Opening Date is on a day other than the first
day of a calendar month, then the Additional Minimum Base Rental for the partial calendar month
in which the First Parking Garage Expansion Opening Date occurs shall be prorated as provided
above. From and after the First Parking Garage Expansion Opening Date, the term "Minimum
Base Rental" as used in this Amendment, shall be deemed to include the Additional Minimum
Base Rental. However, in no event shall Minimum Base Rental be subject to increase as a result of
any Future Parking Garage Expansion (as defined below).
(c) Consumer Price Index (CPI) Escalation.
(i) Developer agrees that Minimum Base Rental shall be increased every Rental
Year during the Lease Term (each, a "CPI Escalation Year") following the Effective Date by an
3
amount equal to the percentage increase during the year immediately prior to the CPI Escalation
Year in the consumer price index ("Index"), which is the monthly index published by the Bureau
of Labor Statistics of the United States Department of Labor as the Consumer Price Index for All
Items, Miami -Ft. Lauderdale, Florida, Base Year 1982-84=100. The CPI adjustment to Minimum
Base Rental shall be hereinafter referred to as the "CPI Escalation." The amount of the CPI
Escalation to Minimum Base Rental shall be capped at three percent (3%) each time the CPI
Escalation is made (the "Maximum CPI Percentage"). The CPI adjustment set forth herein shall
not result in a reduction of Minimum Base Rental. Notwithstanding anything to the contrary set
forth herein, the first CPI Escalation Year with respect to Minimum Base Rental shall be the
Rental Year commencing January 1, 2016.
(ii) The CPI Escalation of Minimum Base Rental for the CPI Escalation Year
shall be equal to Minimum Base Rental in effect for the Rental Year immediately preceding the
CPI Escalation Year multiplied by the CPI Percentage (as defined below) not to exceed the
Maximum CPI Percentage. The "CPI Percentaae" shall equal the fraction (i) whose numerator
equals the monthly Index published immediately prior to the CPI Escalation Year (or the nearest
reported previous month), and (ii) whose denominator is the same monthly Index published
immediately prior to the Rental Year that preceded the CPI Escalation Year (or the nearest
reported previous month). If the Index is discontinued with no successor Index, City shall select a
commercially reasonable comparable index.
(iii) City shall compute the CPI Escalations and send a notice, with calculations, to
Developer setting forth the adjusted Minimum Base Rental within sixty (60) days of the
commencement of each CPI Escalation Year or as soon as such Index is available. In the event
Minimum Base Rental increases, Developer shall pay to City within thirty (30) days of receiving
such notice, the additional Minimum Base Rental owed for the months that have elapsed in the
current Rental Year.
(d) Percentage Rent. Percentage Rent shall be due and payable to City pursuant to the
terms and conditions set forth on Exhibit "B" attached hereto. As used herein, the term
"Percentage Rent" means those amounts described in Exhibit "B" attached hereto.
(e) Independent Operating Entitv and Bank Account. Developer will establish (if not
currently established) an operating entity that is unique and distinct to the operations of Developer
at the Leased Property, as well as one or more bank accounts through which deposits of Gross
Receipts (as defined, in Exhibit "B" attached hereto) generated from such operations will be made.
These particular deposits of Gross Receipts will not be commingled with those from any other
operations of Developer or any other affiliated organizations and shall be reconcilable with federal
income tax returns and state sales and use tax returns of Developer. City acknowledges and agrees
that Bayside Marketplace, LLC is an independent operating entity for purposes of this provision.
(f) Late Charge. Notwithstanding anything to the contrary set forth in the Lease, .any
installment of Minimum Base Rental, Percentage Rent, or any rent component or expenses due to
City pursuant to the Lease, as amended hereby, which is not paid within ten (10) days following
written notice of Developer's failure to pay when due, shall accrue interest at an annual rate equal
to two percent (21/o) over the prime rate charged by Citibank, N.A. from time -to -time, but in no
4
event in excess of the maximum interest rate permitted by law (the "Default Rate"), from the date
such payment was due until the date such payment is paid to the City and an administrative
overhead charge of 0.5% of the installment of Rental that has not been timely paid. It is agreed
that the foregoing administrative charge is not a penalty but is a regulatory fee. From and after the
Effective Date, all references in the Lease to the "Default Rate" shall mean the Default Rate as
defined herein. If Developer fails to cure a late payment within ten (10) days following written
notice of such failure from City, as provided herein, more than once in any Rental Year, then
commencing with the second late payment that is not timely cured by Developer, the Default Rate
shall be adjusted for the balance of such Rental Year to be twelve percent (12%) per annum, but in
no event in excess of the maximum interest rate permitted by law.
5. Alterations and Renovations.
(a) Alterations and Renovations. Section 3.14 of the Lease is hereby amended and
restated in its entirety as follows:
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 materially affects the
exterior appearance of the Improvements or the overall character and
appearance of the public circulation areas shall be made until such time as the
City Manager shall have approved, in writing, definitive construction plans and
specifications therefor, in compliance with all applicable codes, rules and
regulations, which approval shall not be unreasonably withheld or delayed.
Developer must secure and pay for any and all permits and approvals required
to perform any of the contemplated alterations or renovations.
(b) Renovation Work. Developer, at its sole cost and expense, shall complete the
construction and installation of certain Capital Improvements to the Retail Parcel and the Garage
Parcel that are consistent with the Capital Improvements depicted or described on Exhibit "C"
attached hereto and made a part hereof (the "Renovation Work"). The Renovation Work is hereby
approved by City and shall not require any further approvals or consents from City, except for the
City Manager's approval of the plans and specifications for the Renovation Work as set forth in
Exhibit "C" and any required building and land development pen -nits and approvals which must be
applied for by Developer. Developer covenants that Developer shall expend no less than Twenty -
Seven Million Dollars ($27,000,000) (the "Minimum Level of Investment") but not more than
Thirty Five Million Dollars ($35,000,000) in connection with the Renovation Work,. which shall
include, without limitation, all third party soft and hard costs and expenses incurred by Developer
to complete all Renovation Work. Upon completion of the Renovation Work, Developer shall
furnish to City copies of invoices and receipts in connection therewith as shall be required to
reasonably demonstrate Developer's achievement of the Minimum Level of Investment.
_(c) Bonding. Developer agrees to post (or cause its contractor(s) to post) payment
and performance bond(s) in favor of City, in substantially the form prescribed by § 255.05, Fla.
Stat. for the full amount (i.e., 100%) of the cost of all alterations, reconstruction, additions, and
other renovations performed by Developer at the Garage Parcel. The bond shall be issued by a
Florida licensed surety company rated A: V or better per A.M. Best's Key Rating Guide and shall
be subject to approval as to form by City's Risk Manager and City Attorney. Both City and Miami
Dade County shall be listed as obligees.
(d) Retail Parcel Maximum Allowable Square Footage for Retail Parcel and Garage
Parcel. Developer may only build up to the maximum allowable Leaseable Area of 267,000
square feet of enclosed retail space, including restaurants at the Retail Parcel and Garage Parcel,
collectively. The foregoing maximum allowable Leasable Area does not include the allowable
square footage for the Tower, as set forth in the Tower Warrant (as defined in the Retail
Amendment), which shall be in addition to the maximum allowable Leaseable Area for the Retail
Parcel and Garage Parcel. Developer agrees to expand the Parking Garage aspart of the
Renovation Work to add 448 additional parking spaces (the "First Parking Garage Expansion"). In
addition, Developer shall have the right to further expand the Parking Garage, in its sole and
absolute discretion, to provide up to an additional 296 parking spaces at the Parking Garage (the
"Future Parking Garage Expansion".
6. Transfers.
(a) Section 5.1(a) and (b) of the Lease are hereby amended and restated in their entirety
as follows:
"Transfer" means:
(i) any partial or total sale, assignment, gifting or conveyance
(other than in connection with any financing or refinancing
contemplated by the Lease) of Developer's leasehold estate in
the Lease or any contract or agreement to do any of the same;
(ii) any transfer of membership interests in Developer resulting in
the direct or indirect beneficial ownership of General Growth
Properties, Inc. being less than fifty percent (50%) of Developer
(a "Change of Control");
any merger or consolidation of Developer with any other person
or entity that is not an affiliate of Developer, or the sale of all or
substantially all of the assets of Developer to any person or entity
that is not an affiliate of Developer. For purposes hereof,
"affiliate" shall mean any person or entity controlling, controlled
by or under common control with Developer (with the term
"control" and correlative terms meaning the possession, directly
or indirectly, of the power to direct or cause the direction of
management and policies of the business and affairs of
Developer by reason of the ownership of voting interests, by
contract or otherwise).
0
"Owner" means:
any person, firm, corporation or other entity which owns, directly
or indirectly, legally or beneficially, more than fifty percent
(50%) of the membership or other equity interests in Developer,
but shall not include any equity holder of an Owner whose shares
are publicly traded.
(b) In Section 5.2(c) of the Lease, the reference to "stock of the General Partner of
Developer" shall be deleted and replaced with "the membership interests of Developer" and the
reference to "stock" shall be deleted and replaced with "membership interests".
(c) In Section 5.3 of the Lease, (i) all references to "limited partner" or "partner" shall
be deleted and replaced with "member" and (ii) the word "limited liability company" shall be
added to Section 5.3(e) following the word "joint venture"; (iii) the reference to "subparagraphs (a)
through (j)" in the first paragraph of Section 5.3 shall be deleted and replaced with "subparagraphs
(a) through (m)"; and (iv) the following permitted Transfers shall be added to the end of Section
5.3:
(1) Any Transfer resulting from the pledge of any direct or indirect ownership
interests in Developer as security for a loan made by an Institutional Investor to
Developer or any direct or indirect beneficial owner of Developer.
(m) Any Transfer of direct or indirect ownership interests in Developer that does
not result in a Change of Control.
(d) Section 5.4(b) of the Lease is hereby deleted in its entirety and shall be deemed
inapplicable and of no further force and effect from and after the Effective Date.
(e) Section 5.7 of the Lease, including all modifications to "Section 5.8" by prior
amendments, are hereby deleted in their entirety and shall be deemed inapplicable and of no
further force and effect from and after the Effective Date.
(f) In the event of a Transfer Fee Transaction (as hereinafter defined), Developer shall
pay to. City a fee (the "Transfer Fee"), in connection with such Transfer Fee Transaction as
follows: during the initial five (5) years following the Effective Date, the Transfer Fee shall be 2%
of the Gross Sale Amount (as hereinafter defined); between the fifth (5t) anniversary and the tenth
(10th) anniversary of the Effective Date, the Transfer Fee shall be 1.5% of the Gross Sale Amount;
between the tenth (10th) anniversary of the Effective Date and the twentieth (206) anniversary of
the Effective Date, the Transfer Fee shall be I% of the Gross Sale Amount; and after the twentieth
(20th) anniversary of the Effective Date, the Transfer Fee shall be 0.75% of the Gross Sale Amount
of such transaction. Developer shall pay to City the Transfer Fee at the time the Transfer Fee
Transaction closes and the Gross Sale Amount has been received by Developer. A "Transfer Fee
Transaction" shall mean any Transfer other than a permitted Transfer pursuant to Subsections 5.3
(a) through (c) and (e) through (m) of the Lease, as amended herein. "Gross Sale Amount" shall
mean the gross sale proceeds actually received by Developer upon the consummation of any
Transfer Fee Transaction. Developer shall furnish to City a copy of a financial statement, a closing
statement, a Transfer document, or other similar document in connection therewith as shall
reasonably demonstrate the Gross Sale Amount.
7. Financing.
(a) The second sentence of Section b. l (a) pertaining to a cap on any financing or
refinancing equal to the amount of the Development Costs is hereby deleted in its entirety and
shall be deemed inapplicable and of no further force and effect from and after the Effective Date.
Developer agrees that the amount of any financing or refinancing procured by Developer from and
after the Effective Date to be secured by a Leasehold Mortgage shall in no event exceed eighty
percent (80%) of the fair market value of Developer's leasehold interest in the Leased Property and
fee interest in the Improvements to be encumbered by the lien of a Leasehold Mortgage, as
determined by an appraisal conducted by Developer's Leasehold Mortgagee.
(b) If Developer engages in any new financing or refinancing with respect to the
Retail Parcel or the Garage Parcel (or both), then City shall have the one-time right to participate
in such financing or refinancing in an amount equal to three percent (3%) of the first $125,000,000
of Loan Proceeds (as hereinafter defined), for a maximum total participation interest of $3,750,000
(the "Participation Interest"). By way of clarification, if, for example, Developer engages in a
financing or refinancing which results in Loan Proceeds of $100,000,000 with respect to
Developer's interest in the Retail Parcel and Loan Proceeds of $25,000,000 with respect to
Developer's interest in the Garage Parcel, the Loan Proceeds threshold of $125,000,000 will be
achieved based upon the sum of the Loan Proceeds for both the Retail Parcel and the Garage
Parcel financings. However, if Developer's first financing transaction results in Loan Proceeds that
are less than $125,000,000, then the difference between $125,000,000 and the amount of the Loan
Proceeds from the first financing shall be considered the "Loan Proceeds Differential" (e.g., if
Developer's first financing transaction results in Loan Proceeds equal to $110,000,000, then the
Loan Proceeds Differential shall be equal to $15,000,000). In the event of a Loan Proceeds
Differential, City shall be entitled to participate in the subsequent refinancing by Developer in an
amount equal to three percent (3%) of the Loan Proceeds Differential. The Participation Interest
(or the applicable portion thereof if the Participation Interest is not otherwise paid from one
financing transaction) shall be paid to City upon the consummation of the applicable financing or
refinancing transaction(s). City acknowledges and agrees that in no event shall City be entitled to
participate in any subsequent financing or refinancing once the Participation Interest has been paid
in full and that the provisions of this Section 7(b) shall be deemed null and void and of no further
force and effect upon such payment in frill. If requested by Developer, City agrees to certify in
writing for the benefit of Developer, any prospective Lender or any prospective purchaser of all or
any portion of Developer's interest in the Retail Parcel and Garage Parcel, that the Participation
Interest has been paid in full. For purposes of this Section 7(b), "Loan Proceeds" shall mean the
net proceeds available to Developer from any financing or refinancing after deduction of (i) all
third party costs and expenses incurred by Developer in connection with the financing or
refinancing transaction, including, without limitation, all fees, costs and expenses imposed by
Developer's Lender and any rating agencies, as well as title and survey costs, escrow fees,
appraisal costs, consultant costs and attorneys' fees and costs and (ii) all amounts required to repay
then -existing debt being refinanced or to repurchase Developer's estate in the Retail Parcel or
Garage Parcel, as applicable, if previously conveyed in a Sale -Leaseback Transaction.
(c) City further acknowledges and agrees that in addition to the rights set forth in
Section 6.1(a) of the Lease, as amended hereby, Developer shall have the right to procure
financing with respect to the Leased Property, the Improvements or Developer's leasehold interest
that is secured by collateral other than a Leasehold Mortgage encumbering Developer's leasehold
interest in the Leased Property, including, without limitation, a pledge of direct or indirect
ownership interests in Developer so long as the such financing is provided by an Institutional
Investor.
(d) The definition of "Institutional Investor" in Section 6.1(b) of the Lease is hereby
deleted in its entirety and replaced with the following:
"Institutional Investor" shall mean:
(.i) any real estate investment trust, bank, savings and loan association,
savings bank, trust company, insurance company, investment bank,
commercial credit corporation, pension trust, pension plan, pension
fund or pension advisory firm, retirement trust, retirement plan,
retirement fund or retirement advisory firm, welfare trust, welfare
plan, welfare fund or welfare advisory firm, mutual fund,
government entity or plan, investment company, money
management firm or "qualified institutional buyer" within the
meaning of Rule 144A under the Securities Act of 1933, as
amended, or an institutional "accredited investor" within the
meaning of Regulation D under the Securities Act of 1933, as
amended;
(ii) any investment fund, limited liability company, limited partnership
or general partnership where an entity that is otherwise an
"Institutional Investor" under clause (i) of this definition acts as the
general partner, managing member or fund manager and at least
.fifty percent ($0%) of the equity interests in such investment
vehicle are owned, directly or indirectly, by one or more entities
that are otherwise Institutional Investors under clause (i);
(iii) any entity (A) with a long-term unsecured debt rating from any of
Standard & Poor's, Moody's, or Fitch (or the successor
organization of any of them) of at least investment grade or (B)
who owns or operates at least three (3) shopping centers of similar
size and quality to Bayside Marketplace, Miami, Florida;
(iv) any Qualified Trustee (as defined below) in connection with (A) a
securitization of, (B) the creation of collateralized debt obligations
secured by, or (C) a financing through an 'owner trust".
"Qualified Trustee" means (x) any corporation, national bank,
national banking association or a trust company, organized and
doing business under the laws of any state or the United States of
America, authorized under such laws to exercise corporate trust
powers and to accept the trust conferred, subject to supervision or
9
examination by federal or state authority, (y) an institution insured
by the Federal Deposit Insurance Corporation or (z) an institution
whose long-term senior unsecured debt is rated at least investment
grade by any of Standard & Poor's, Moody's, or Fitch (or the
successor organization of any of them); or
(v) any entity controlled by any of the entities described in clauses (i),
(ii), (iii) or (iv) above.
(e) The definition of "Lender" in Section 6.1(b) of the Lease shall be separated from
the definition of "Leasehold Mortgagee" and amended to mean any Leasehold Mortgagee or other
Institutional Investor that provides financing to Developer or its members.
8. Pavment to City.
Developer and City acknowledge that this Amendment is conditioned upon approval from
the City's electorate either at an August 26, 2014 or November 4, 2014 referendum (the "Ground
Lease Referendum"). Subject to the terms of this Section 8, Developer agrees to deposit into
escrow with Developer's attorney the sum of Ten Million Dollars ($10,000,000)C Developer's
Pavment") by wire transfer of immediately available federal funds, not less than thirty (30) days
prior to the date of the Ground Lease Referendum, pursuant to the terms of an escrow agreement to
be mutually agreed between Developer and City (through the City Manager and City Attorney)
and otherwise consistent with the terms of this Section 8 (the "Escrow Agreement'). The Escrow
Agreement shall provide that if the Ground Lease Referendum is approved, Developer's attorney
shall be authorized to release Developer's Payment to City upon the later to occur of (a)
Developer's receipt of an original counterpart of this Amendment duly signed by City and (b)the
expiration of the 30 -day period to appeal the Ground Lease Referendum (the "Anneal Period") so
long as no appeal has been filed. Provided the Ground Lease Referendum is approved by the City's
electorate, Developer and City agree to sign this Amendment and exchange original signed
counterparts of same within ten (10) days following formal certification of the Ground Lease
Referendum. If an appeal is filed prior to the expiration of the Appeal Period, then Developer's
attorney shall have no obligation to release Developer's Payment to City, and shall hold
Developer's Payment in escrow, until such time as a court of competent jurisdiction renders a
final, binding and unappealable ruling that this Amendment is valid, binding and enforceable.
Developer shall have the right, in its sole discretion, to cause Developer's attorney to invest
Developer's Payment and any interest earned on such investment shall be solely for the benefit of
Developer. If, following City's receipt of Developer's Payment, any legal challenge results in all
or any substantive portion of this Amendment being declared null and void by a court of
competent jurisdiction, then unless Developer notifies City that it desires to terminate this
Amendment within thirty (30) days following such ruling (in which case, Developer shall also
have the right to terminate the Retail Parcel Amendment), the unchallenged, valid portions of this
Amendment shall remain in full force and effect without any further action by the parties hereto.
If Developer timely elects to terminate this Amendment and the Retail Parcel Amendment, as
provided in the preceding sentence, then Developer's Payment shall be returned to Developer
within thirty (30) days following City's receipt of Developer's termination notice and the Lease
shall remain in full force and effect as if this Amendment never existed. If the Ground Lease
10
Referendum is not approved by the City's electorate, then Developer's attorney shall be authorized
to immediately release Developer's Payment, together with any interest earned thereon, to
Developer. City acknowledges and agrees that Developer's Payment is one single payment that
applies to both this Amendment and the Retail Parcel Amendment.
9. Indemnity. Section 8.2 of the Lease is hereby deleted in its entirety and replaced with the
following:
Section 8.2 Indemnitv and Hold Harmless. Developer shall indemnify,
defend (at Developer's sole cost and expense) and save harmless City, its
officials, servants, employees and agents, from and against any and all
claims, actions, damages, liability and expenses in connection with the
loss of life, personal injury or damage to or destruction of property arising
from or out of any occurrence in, upon or at the Leased Property, or the
occupancy or use by Developer of the Leased Property, or any part
thereof, occasioned by the negligence or willful misconduct of Developer,
its agents, contractors, employees, servants, customers, invitees,
Subtenants, licensees or concessionaires, except to the extent any of the
foregoing claims, actions, damages, liability. or expenses arise in whole or
in part out of the negligence or willful misconduct of City, its officials,
employees, agents, servants, employees, contractors, licensees or
concessionaires; provided that with respect to any alleged negligence or
willful misconduct by City, if pursuant to litigation, arbitration or other
judicial or administrative process, City is found not responsible for such
loss, then Developer shall pay City's reasonable attorneys' fees and costs.
Developer shall also pay all costs, expenses and reasonable attorneys' fees
that may be incurred or paid by City in enforcing the covenants and
agreements of this Section 8.2.
10. Insurance. Article IX of the Lease is hereby modified to amend the preamble of Section
9. 1, replace Sections 9.1(a) through (d) in their entirety and add Section 9.12, as provided below.
Section 9.1Insurance Reauirements. Beginning on the Effective Date
and during Lease Term, Developer, at its sole cost and expense shall maintain
or cause to be maintained the following insurance coverage:
(a) Commercial Propertv Insurance. Insurance on the Improvements
and leasehold interests against all risks of direct physical loss or damage,
including coverage for windstorm, hail, earthquake, flood, and proving for
coverage for debris removal, sprinkler leakage, boiler and machinery, and
coverage for glass breakage, as a result of damage by an 'inured peril.
Coverage shall be written on all risk form, or special causes of loss including
theft. The insurance shall be written on a replacement cost valuation basis. If
the policy or policies of insurance contain a co-insurance requirement, the
policy or policies shall contain or stipulate agreed valued endorsement.
During any construction period, property insurance may be provided on a
Completed Value Builder's Risk form. City and Developer shall be listed as
11
named insureds on such Builder's Risk Policy. Following any substantial
alterations to the Improvements by Developer, Developer agrees to provide to
City, upon City's request therefor, evidence that Developer is carrying
commercial property insurance as required pursuant to this Section 9.1(a). The
term "Improvements", as used in this Article IX, shall be deemed to include
all personal property furnished, or installed on the Leased Property and owned
by Developer, and the insurance herein provided shall cover the same. In the
event that insurance proceeds are inadequate to rebuild and restore the
damaged Improvements to substantially their previous condition before an
insurable loss occurred, and the cause of the deficiency in insurance proceeds
is the failure of the Developer to adequately insure the Improvements as
required by this 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) Time Element/Business Interruntion or Business Income.
Developer shall "insure against loss of business income, including rental
value, leasehold interests, and extra expense coverage, arising out of the direct
physical damage resulting in suspension of business operations. Period of
restoration must be endorsed to reduce the waiting period to 24 hours, with a
one (1) year extended period of indemnity, including Ordinance or Law
Increased Period of Restoration, and Utility Services Interruption Time
Element coverage, if commercially available. City, as lessor under this Lease,
shall be covered to the extent earned, in an amount equal to the total of
Annual Basic Rental payable during said period of business interruption.
(c) Automobile Liabilitv Insurance. Automobile liability insurance
covering all owned autos, including non -owned and hired auto exposures used
in connection with any work arising out of this Agreement. Such insurance
shall afford protection to at least a combined single limit for bodily injury and
property damage liability of One Million Dollars ($1,000,000) per occurrence
or accident. The excess layer of coverage or umbrella liability should be
excess follow form over this coverage. City must appear listed as an
additional insured on the primary and excess layer of coverage.
(d) Commercial General Liabilitv Insurance. Commercial General
Liability, affording coverage against any all claims for bodily injury,
including death, and property damage occurring on or about the Leased
Property, the Improvements, or any elevator, escalator or hoist thereon. Such
insurance shall have limits of at least Fifteen Million Dollars ($15,000,000)
per occurrence, Thirty Million Dollars ($30,000,000) policy aggregate.
Primary and excess layers, such as an umbrella excess follow form policy may
be. used in connection with the structureof limits on this coverage. The policy
or certificate must afford coverage for contingent and contractual exposures,
personal and advertising injury, premises and operations liability, products
and completed operations, liquor liability with full liability limits as required
12
herein. The certificate or policy must further afford coverage for damages to
rented premises, and must reflect City of Miami as an additional insured on
both the primary limits and excess umbrella liability policies. It is 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. Therefore, the
certificates or policies of insurance must be properly endorsed to reflect
primary and non-contributory language.
The City Manager reserves the right to review the adequacy of the
insurance coverage provided in Section 9.1 of the Lease once every ten (10)
years during the balance of the Lease Term and may require that Tenant adjust
Tenant's insurance coverage to the extent the City Manager deems any of the
coverage required in the Lease to he inadequate, in the City Manager's
reasonable discretion, based upon then -current market requirements for
comparable commercial properties in the Miami metropolitan area.
Section 9.12 Subtenant Requirements. For Subleases entered
into from and after the Effective Date, Developer shall contractually require
all of its Subtenants to indemnify City, its officials, servants, employees and
agents and provide certificates of liability insurance naming "City of Miami"
as an additional insured with minimum limits as set forth on Exhibit "D"
attached hereto with respect to Subtenants at the Leased Property,
11. Subleases and Subtenants.
As part of the First Parking Garage Expansion included in the Renovation Work,
Developer intends to construct a retail liner which will be occupied by multiple Subtenants under
Subleases. The rights and obligations of Developer with respect to Subleases and Subtenants, as
set forth in the Retail Area Ground Lease (as amended from time to time, collectively, the "Retail
Lease"), other than with respect to Rental or any component thereof under the Retail Lease, shall
be deemed incorporated by reference herein. By way of clarification, Minimum Base Rental
pursuant to the Retail Lease includes the Leaseable Area of the retail liner and the Operating
Income received by Developer from Subtenants of the retail liner, once open to the general public
for business, shall be included in Gross Receipts for purposes of calculating Percentage Rent for
the Retail Parcel, not the Garage Parcel.
12. Arbitration.
Notwithstanding anything to the contrary set forth in the Lease, including Section 10.5
thereof, City and Developer hereby agree that any dispute, disagreement or controversy arising
under the Lease, or with respect to the interpretation or enforcement of the Lease may be settled by
arbitration if and to the extent City and Developer are not able to resolve any such dispute,
disagreement or controversy within thirty (30) days following notice from one party to the other
party of the nature of any such dispute, disagreement or controversy. If, after such thirty (30) day
period, City and Developer are unable to resolve such dispute, disagreement or controversy, either
1.3
party may request to arbitrate the matter by providing written notice to the other party setting forth
the nature of the request to arbitrate. The terms and conditions of Section 10.5 of the Lease shall
then govern the arbitration procedure.
13. Modifications or Amendments to Certain Definitions.
(a) The definition of "Auditor" as set forth in Section 1.2 of the Lease is hereby
amended and restated as follows: "Auditor" means Deloitte LLP or such other nationally
recognized and reputable firm of certified public accountants authorized to do business in the State
of Florida as may be used from time to time by Developer for purposes of certifying the annual
reports of its financial condition required by law.
(b) All references in the Lease to the terms "Annual Additional Rental" and "Annual
Percentage Rental", including without limitation, the definitions in Section 1.2, are hereby deleted
in their entirety and shall be deemed inapplicable and of no further force and effect from and after
the Effective Date.
(c) All references in the Lease to "Debt Service Payments", including, without
limitation, the definition thereof in Section 1.2, are hereby deleted in their entirety and shall be
deemed inapplicable and of no further force and effect from and after the Effective Date.
(d) All references in the Lease to "Developer Equity Investment", including, without
limitation, the definition thereof in Section 1.2, are hereby deleted in their entirety and shall be
deemed inapplicable and of no further force and effect from and after the Effective Date.
(e) All references in the Lease to "Net Income Available for Distribution", including,
without limitation, the definition thereof in Section 1.2, are hereby deleted in their entirety and
shall be deemed inapplicable and of no further force and effect from an after the Effective Date.
(f) All references in the Lease to "Operating Losses", including, without limitation, the
definition thereof in Section 1.2, are hereby deleted in their entirety and shall be deemed
inapplicable and of no further force and effect from and after the Effective Date.
(g) All references in the Lease to the capitalized terms "Refinancing" and "Refinancing
Proceeds", including, without limitation, the respective definitions thereof in Section 1.2, are
deleted in their entirety and shall be deemed inapplicable and of no further force and effect from
and after the Effective Date.
14. Notices.
Wherever any notice is required or permitted under the Lease, such notice shall be in
writing. Any notice or document required or permitted to be delivered under the Lease shall be
deemed to be delivered when it is actually received by the designated addressee or, if earlier and
regardless of whether actually received or not, when it is either (i) deposited in the United States
mail, postage prepaid, certified mail, return receipt requested, or (ii) delivered to the custody of a
reputable messenger service or overnight courier service, addressed to the applicable party to
whom it is being delivered at the respective address for such party as is set out below, or at such
14
other address as such applicable party may have theretofore specified to the delivering party by
written notice:
If to City at:
City of Miami
444 SW 2nd Avenue, 101h Floor
Miami, FL 33130-1910
Attention: City Manager
with a copy to:
City of Miami
444 SW 2"d Avenue, 3`d Floor
Miami, FL 33130-1910
Attention: Public Facilities Director
15. Miscellaneous.
If to Developer at:
Bayside Marketplace, LLC
c/o General Growth Properties, Inc.
110 North Wacker Drive
Chicago, IL 60606
Attention: Chief Legal Officer
with a copy to:
Bayside Marketplace, LLC
c/o General Growth Properties, Inc.
1245 Worcester Street
Suite 1218
Natick, MA 01760
Attention: John Charters
(a) Each of City and Developer hereby acknowledges and agKees that neither is
presently aware of any continuing defaults by reason of any act or omission on the part of the other
party under the Lease and that as of the date of execution each party has fulfilled all of its duties
and obligations under the Lease to date.
(b) This Amendment shall be construed and governed in accordance with the laws of
the State of Florida. Venue in any actions or proceedings between the parties shall be in Miami -
Dade County, Florida. In order to expedite such actions or proceedings the parties knowingly and
voluntarily waive their right to a jury trial in any such actions or proceedings. Developer and City
each agree to pay their own attorneys' fees in connection with any such actions or proceedings.
(c) This Amendment may be executed in any number of counterparts and by the
separate parties hereto in separate counterparts, each of which shall be deemed an original, but all
of which shall constitute one and the same instrument.
(d) Each party hereby represents and warrants to the other party that (i) it has the full
right and authority to enter into this Amendment, and (ii) this Amendment is a binding and valid
document enforceable in accordance with its terms.
(e) This Amendment shall be deemed a part of, but shall take precedence over and
supersede any provisions to the contrary contained in the Lease. Except as modified hereby, all of
the provisions of the Lease, which are not in conflict with the terms of this Amendment, shall
15
remain in full force and effect, and, as modified hereby, the Lease is hereby ratified and confirmed
in all respects.
(f) This Amendment shall be binding upon the parties hereto and their respective
successors and permitted assigns.
(g) At the request of Developer, City agrees to enter into a memorandum of this
Amendment to be placed of record in the Public Records of Miami -Dade County in such form as
Developer and City shall mutually agree. Developer shall be responsible for all recording costs
with respect to such memorandum.
(h) The terms "business day" or "business days", as used herein, shall mean,
individually or collectively, as the case may be, each calendar day of the week other than Saturday,
Sunday and any nationally recognized legal holidays.
[Remainder of Page Left Blank Intentionally]
16
IN WITNESS WHEREOF, the parties have executed this Amendment as of the Effective
Date.
ATTEST:
B «��
y- -il
Tod Dannon
City Clerk
APPROVED AS TO LEGAL FORM
AND CORRECTNESS:
r i ,
By:
ictoria M6ndez
City Attorney
►'71114 M����101/L�Jti17:1
CITY OF MIAMI, a municipal corporation of
the State of Florida
By:
Daniel J. Al so
City Manager
APPROVED TO I�
QUIRE TS
By:
..� nn -Marie S e
Director ofy
sk M agement
) SS..
COUNTYOF MIAMI-DADE )
The foregoing instrument was acknowledged before me this P'�f_ day of
40?ke.�1&111' , 2014,.by Daniel J. Alfonso, the City Manager, and -Tb&\ gomy%on ,
the City Clerk, of the City of Miami, a Florida municipal corporation, in the capacity aforesaid;.
each such person is personally known to me.
My Commission Expires
[NOTARTALSEALI
Sign Name:_
Print Name:
Notary Public
Serial No. (none if blank):
�!r•. gFEIJAE.PERFx
MY COMMISSION.1 £E 100268
EXPIRES: August 2, 20 15
edotary?0JACUnbenrtters
SNuh
17
WITNESSES:
��)Aj,qA,
Print Nam: �S f
Title:w[�� Cf -.GLI
Lc2�,U��I
1�1
lit N
itle: '
STATE OF ILLLNOIS )
) SS..
COUNTY OF COOK )
BAYSIDE MARKETPLACE, LLC, a
Delaware limited liability company
By:�
Print Narne: Andrew P. Massmann
Title: Authorized Signatory
The foregoing instrument was acknowledged before
before me this 414 day of J 6.61
2014, by �t9L��2G RIlas�htct`fyas u On / of Bayside Marke Lace, LLC, in the
S
capacity aforesaid; such person is personally known to me
OFFICIA'.. Sr,...�...,,�.�. �
IKATYA R LFWA d &NS:<
NO .
TARY DUf-Lk $`.
MY Cot."1, --S''
i Eornmission Expires: A
[NOTARIAL SEAL]
OFFICIAL. SEAL
KATYA R LEWANDOWSKA
NOTARY PUBLIC • STATE OF ILLINOIS
MY COMMISSION EXPIRES: 10130/16
Sign Name:
Print Name: ".41 J - «Gt�OepS'�
/ Notary Public
Serial No. (none if blank):
18
EXHIBIT "A"
DETERMINATION OF FAIR MARKT RENT
Minimum Base Rental for the first Rental Year of each Renewal Term shall be evaluated
in accordance with the procedures set forth in this Exhibit (each, a "Scheduled Appraisal") to
determine the current Fair Market Rent (as defined below) for Minimum Base Rental and the
required adjustments to these values for the applicable Renewal Term.
1. Appraisers. No later than three hundred and sixty-five (365) days prior to the end of
the Original Term, Renewal Term, City shall deliver to Developer a determination of the Fair
Market Rent, in accordance with the criteria set forth herein applicable to the determination of
Fair Market Rent. The determination of Fair Market Rent provided by City shall be conducted
by an independent commercial real estate appraiser who is a member of the American Institute of
Real Estate Appraisers and who has not less than ten (10) years' experience in appraising
properties comparable to the Leased Property (a "Oualifced Appraiser"). City shall pay for the
appraisal. City shall select its Qualified Appraiser from the City's general appraisers' services
list. In no event shall an appraisal result in a reduction in the Minimum Base Rental due to the
City. The Qualified Appraiser shall be hired the year prior to the Rental Year that the newly
appraised Minimum Base Rental shall commence to take effect (each, an "Adjustment Rental
Year"). In the event that Developer shall dispute the determination of Fair Market Rent made by
City's Qualified Appraiser, then, Developer shall, within thirty (30) days following its receipt of
the determination made by City's Qualified Appraiser, select its own real estate appraiser, who
shall also be a Qualified Appraiser (though Developer's Qualified Appraiser shall not be
required to be on the City's general appraisers' service list). Developer shall pay the costs of
Developer's Qualified Appraiser. The City's Qualified Appraiser and the Developer's Qualified
Appraiser shall then have a period of thirty (30) days following the selection of Developer's
Qualified Appraiser within which to attempt, in good faith, to reach agreement on the Fair
Market Rent for the Property. If City's Qualified Appraiser and Developer's Qualified Appraiser
are unable to agree upon the Fair Market Rent within such thirty (30) day period, then the Fair
Market Rent shall be determined in accordance with the methodology set forth below:
Within fifteen (15) days following the expiration of such thirty (30) day period, City's
Qualified Appraiser and Developer's Qualified Appraiser shall endeavor to mutually agree upon
an independent commercial real estate appraiser who shall be a Qualified Appraiser. If the
Developer elects, the pool of Qualified Appraisers shall exclude any appraiser on the City's
general appraisers' service list. If the City's Qualified Appraiser and Developer's Qualified
Appraiser are unable to agree on such third Qualified Appraiser, City and Developer shall apply
to the American Arbitration Association for designation of an appropriate third Qualified
Appraiser. The Qualified Appraiser so selected or designated by the American Arbitration
Association is hereinafter referred to as the "Third Appraiser."
Within ten (10) days following the selection of the Third Appraiser, City's Qualified
Appraiser and Developer's Qualified Appraiser shall each submit to the Third Appraiser their
respective final determinations of the Fair Market Rent. Within thirty (30) days thereafter, the
Third Appraiser shall select, as the Fair Market Rent, either the determination submitted by
City's Qualified Appraiser or the determination submitted by Developer's Qualified Appraiser.
The Third Appraiser shall not select any amount as the Fair Market Rent, other than the amount
submitted by either the City's Qualified Appraiser or the amount submitted by the Developer's
Qualified Appraiser.
The Third Appraiser shall notify both City and Developer, in writing, which of the two
determinations the Third Appraiser has selected as the Fair Market Rent. The selection of the
Third Appraiser shall be final and binding on both City and Developer and the Fair Market Rent,
as selected by the Third Appraiser, shall be the Minimum Base Rental which shall take effect
commencing as of the beginning of the applicable Adjustment Rental Year.
2. Method. Each Qualified Appraiser shall determine the Fair Market Rent based on the
parameters set forth in the definition thereof set forth in Section 1 above. Each Qualified
Appraiser, in its discretion, may dispense with formal hearings, it being agreed that his task will
be solely that of appraisal.
3. Effect of Appraisal. The Fair Market Rent determined in accordance with the procedures
set forth in this Exhibit shall be binding and conclusive on City and Developer, except that in no
event shall (a) the Fair Market Rent be adjusted below the then applicable Minimum Base Rental
for such Rental Year or (b)the Minimum Base Rental for the second, third or fourth Renewal
Terms increase by more than fifteen percent (15%) over the Minimum Base Rental then
applicable at the time of such appraisal.
4. Appraisal Fee. Developer shall be responsible for one hundred percent (100%) of the
costs associated with the hiring of the Developer's Qualified Appraiser and City shall be
responsible for one hundred percent (100%) of the costs associated with the hiring of the City's
Qualified Appraiser. In the event the Developer disputes the first appraisal, the costs associated
with the hiring of the Third Appraiser shall be paid by the party whose Qualified Appraiser's
determination of Fair Market Rent is not selected by the Third Appraiser; provided., however, if
Developer elects to exclude from the pool of Qualified Appraisers any appraiser on the City's
general appraisers service list, then Developer shall pay fifty percent (50%) of the cost of the
Third Appraiser.
5. Delayed Appraisal. If prior to the commencement of the Adjustment Rental Year, the
adjusted Minimum Base Rental has not been determined by independent appraisal in accordance
with the procedures set forth in this Exhibit, Developer shall continue to pay all then applicable
Minimum Base Rental as may have been previously adjusted pursuant to the terms of this
Amendment.
Following the determination of the Fair Market Rent by independent appraisal, in
accordance with the procedures set forth in this Exhibit, Minimum Base Rental will be adjusted
as provided retroactively to the commencement of the subject Adjustment Rental Year, and, if
necessary, the Developer shall pay to the City with the next installment of Minimum Base Rental
due, the amount, if any, by which Minimum Base Rental, as adjusted, exceeds Minimum Base
Rental that has been paid by the Developer for the retroactive period.
6. Fair Market Rent. For purposes of this Amendment, "Fair Market Rent" means the
rent that a similar property with the entitlements and lease restrictions currently applicable to the
Leased Property, without consideration of the Improvements constructed by Developer or any
Subtenant, would bring in a competitive and open market under all conditions requisite to an
arm's length transaction, the parties each acting prudently, knowledgeably, and assuming the
rent is not affected by undue stimulus. Implicit in this definition are the following assumptions:
(a) Both parties are typically motivated;
(b) Both parties are well informed or well advised and acting in what they
consider their own best interest;
(c) A reasonable time is allowed for exposure to the open market;
(d) Payment is made in terms of cash in U.S. Dollars in terms of financial
arrangements comparable thereto; and
(e) The rent represents the normal consideration for property leased, under
current market conditions (as of any date as of which Fair Market Rent is
determined) unaffected by special or creative financing or concessions
granted by anyone associated with the Lease.
EXEUIT "B"
PERCENTAGE 1zENT
1. Percentage Rent Calculations.
(a) Commencing on the Effective Date and continuing throughout the Lease Term,
Percentage Rent shall be due and payable to the City, in arrears, on the first (1") day of the first
(lam) full calendar month following the Effective Date and thereafter on the first (Vt) day of each
calendar month of the Lease Tenn for the prior month, as provided herein. Percentage Rent shall
be equal to the following:
Fifteen percent (15%) of Gross Receipts (as defined below) over the initial annual
breakpoint of $4,507,000, which annual breakpoint shall adjust each Rental Year
commencing with the first CPI Escalation Year for the adjustment of Minimum
Base Rental. Each such annual adjustment of the breakpoint shall be equal to the
natural breakpoint (i.e., the adjusted annual Minimum Base Rental for the subject
Rental Year divided by fifteen percent (15%)). The breakpoint for any partial
Rental Year during the Lease Term shall be reduced to an amount equal to the
product of (i) the then -applicable breakpoint times (ii) a fraction, the numerator of
which is the number of days in such Rental Year and denominator of which is
365. Each Rental Year shall be considered an independent accounting period for
the purpose of computing Percentage Rent due, if any. The amount of Gross
Receipts of any Rental Year shall not be carried over into any other Rental Year.
"Gross Receipts" shall mean all Operating Income actually collected and received by
Developer at the Leased Property (excluding any Operating Income received by Developer from
Subtenants of the retail liner to be constructed by Developer at the Leased Property); provided,
however that Gross Receipts shall not include the following:
(i) any sums collected and paid out by Developer for any sales, use or
excise tax or surcharge imposed by any federal, state or governmental
authority directly on sales and collected from customers and accounted
for by Developer and/or Subtenants;
(ii) proceeds from the sale of trade fixtures, operating equipment or
similar assets after use thereof in the conduct of Developer's business
on the Leased Property;
(iii) funds collected with regard to the Leased Property which are not
actually related to the day-to-day business of the Leased Property such
as, but not limited to the financing of. the Developer's interest in the
Leased Property;
(iv) collection of insurance proceeds;
(v) collection of eminent domain proceeds;
(vi) monies collected for events, to the extent such monies collected are
paid or delivered to the sponsor, so long as sponsor is not affiliated
with Developer;
(vii) all gratuities paid to employees;
(viii) amounts received by Developer as reimbursements of expenses and
cost sharing (for example, reimbursement of taxes, maintenance,
insurance or utility bills);
(ix) any grants, subsidies, rebates, credits or similar benefits received by
Developer from any federal, state, regional or local body, agency,
authority, department or organization;
(x) interest earned on Developer's deposit accounts, earnings or profits on
Developer's investments;
(xi) interest income from loans or credit facilities granted by Developer
and similar passive or investment income of Developer related to
Developer's liquid assets, investments or loans/credit facilities granted
by Developer;
(xii) rents or percentage rents and commissions paid to Developer by any
Subtenants where City is collecting rent based on a percentage of
subtenant's Gross Receipts;
(xiii) Amounts received by a valet parking concessionaire that are not
remitted to Developer;
(xiv) Any restricted donations or contributions whose Gross Receipts are
earmarked for capital expenditures, as approved by City, to the Leased
Property;
(xv) Interest and finance charges charged by Developer; and
(xvi) Amounts received by SkyRise (as defined in the Retail Parcel
Amendment), or any permitted successor or assign, in connection with
any employee parking or valet parking operation for the Tower (which
amounts shall be included'in the calculation of Tower Gross Receipts
under the Retail Parcel Amendment).
2. Gross Receipts Report. Developer shall use a Gross Receipts Report, a sample of which
is attached herewith and incorporated herein as Schedule 1 to itemize any and all reportable
Gross Receipts as described in this Exhibit.
3. Developer's Records. Developer shall prepare and keep full, complete and proper books
and source documents in accordance with generally accepted accounting principles, of Gross
Receipts received by Developer in connection with the operation of the Leased Property. The
books and source documents to be kept by Developer shall include, without limitation, true
copies of all federal income and state sales and use tax returns of Developer, as well as sales
records of each Subtenant paying percentage rent to Developer and records of any other
transactions conducted in or from the Leased Property by Developer.
4. Reports by Developer. Within ninety (90) days after the end of each Rental Year,
Developer shall also furnish to City a certified financial report (i.e. a Gross Receipts audit) by an
Auditor (the "Annual Report"), showing in all reasonable detail the amount of such Gross
Receipts received by Developer from the Leased Property during the preceding Rental Year.
Developer shall in all events furnish to City within fifteen (15) days after the end of each
calendar month of the Lease Term a written statement of Gross Receipts covering the preceding
month, the statement to be in such form and style and contain such details and breakdown as City
may reasonably require. City acknowledges and agrees that, with respect to Gross Receipts
generated by any Subtenant paying percentage rent to Developer, Developer shall rely on the
reporting made by each such Subtenant with respect to its gross Receipts and shall have no
liability whatsoever for reporting errors made by any such Subtenant.
5. Richt to Examine Books. Notwithstanding the acceptance by City of payments of
Minimum Base Rental and Percentage Rent, City shall have the right to all Rental and other
charges actually due hereunder, and the right to examine, make extracts from and copy, at the
Leased Property or Developer's main accounting office, Developer's books, source documents,
accounts, records, bank statements and federal income and state sales and use tax returns filed
with applicable governmental agencies by Developer in order to verify the amount of Gross
Receipts received by Developer in and from the Leased Property. For a period of five (5) years
after the expiration of each Rental Year, Developer shall make all documents and records
evidencing Gross Receipts available at the Leased Property or Developer's main accounting
office upon ten (10) business days' prior written notice from City. The Developer will establish
one or more bank accounts to deposit all Gross Receipts recognized from the operations on the
Leased Property, which bank account deposits will not be comingled with the Receipts from any
other operations of the Developer or any other affiliated companies.
6. Audit.
(a) At its option, City may at any time, upon ten (10) business days' prior written
notice to Developer but no more than once each Rental Year, arrange for an auditor selected by
City from either the City's Auditor General's Office or a nationally recognized firm of certified
public accountants that is not paid on a contingency basis to conduct a complete audit (including
a physical inventory) of the applicable records and operations of Developer evidencing Gross
Receipts from the Leased Property during the period covered by any statement issued by
Developer. Developer shall make available to the City's auditor at the Leased Property or
Developer's main accounting office on the day set forth in City's notice, requiring such audit, all
of the applicable books, source documents, accounts and records referred to in this Exhibit and
any other materials which such auditor reasonably deems necessary or desirable for the purpose
of making such audit. Developer shall promptly pay to City the amount of any deficiency in
Percentage Rent payments disclosed by any such audit. If such audit shall disclose that
Developer's statement of Gross Receipts is understated to the extent of five percent (5%) or
more, then, unless Developer shall dispute the results of such audit, City may bill to Developer
the cost of such audit, which shall be paid by Developer within thirty (30) days after Developer's
receipt of City's invoice.
(b) In the event that any such audit shall disclose that Developer's records and other
documents as referred to in this Exhibit and such other materials provided by Developer to City's
auditor are inadequate, in the opinion of an independent auditor serving as City's auditor, to
disclose accurately Developer's Gross Receipts, then Developer shall have thirty (30) days to
cure any deficiencies raised by City's auditor and shall then notify City so that City's auditor can
continue its audit. City's exercise of the foregoing remedy shall in no way limit or otherwise
affect City's ability to exercise other remedies available to it, nor shall Developer's obligations
pursuant to the terms, covenants and conditions of this Lease (including, without limitation,
Developer's obligation with respect to reporting Gross Receipts and payment of Percentage
Rent) be in any manner reduced or diminished by the exercise of such remedy. Notwithstanding
anything herein to the contrary, to the extent that Developer shall fail to provide to City any
required reporting or records with respect to Gross Receipts as a consequence of any Subtenant's
failure to timely furnish to Developer any required reporting or records with respect to the gross
Receipts generated by such Subtenant, then, provided that Developer shall take all commercially
reasonable measures pursuant to the terms of the applicable sublease to enforce the requirements
of such sublease with respect to producing such reports or records, Developer shall have no
liability to City in connection therewith.
(c) Notwithstanding the foregoing or anything to the contrary set forth in the Lease,
City hereby waives any right to challenge or claim any deficiency in Developer's calculation of
Rental with respect to any Rental Year (or partial Rental Year). prior to the Effective Date based
upon any discrepancy between Developer's interpretation of the calculation of Net Income
Available for Distribution (including Developer's interpretation of the components thereof) and
the interpretation of such calculation by City or the Office of the Independent Auditor General.
SCHEDULE 1 TO EXHIBIT B
[see attached]
City of Miami
Percentage Rent Calculation
Garage Parcel
BILL CODE DESCRIPTION AMOUNT
EMPF EMPLOYEE PARKING FEES $ XX
PARK PARKING $ XX
VALP VALET PARKING INCOME $ XX
SPSA NATIONAL SAMPLING & TOURS $ XX
PARKING RECEIPTS FROM STANDARD PARKING $ XX
TOTAL GROSS RECEIPTS: $XX
BREAKPOINT:
$XX
RECEIPTS OVER BREAKPOINT: $XX
PERCENTAGE RENT - 15%
PERCENTAGE RENT DUE: $XX
BREAKPOINT CALCULATION (FOR PARTIAL YEAR):
ANNUAL BREAKPOINT: $X, XXX,XXX
APPLICABLE NUMBER OF DAYS:
NUMBER OF DAYS IN YEAR: 365
ADJUSTED BREAKPOINT: $X,XXX,XXX
EXHIBIT "C"
RENOVATION WORK
Bayside Marketplace is a waterfront jewel for the City of Miami. Bayside Marketplace is
a hybrid approach to an indoor shopping experience combined with an open air environment.
Currently, Developer is committed to improving the facility which will undergo an extensive
renovation. The renovation will provide a new modern appearance which is responsive to
Bayside Marketplace's current needs and users. Notwithstanding anything to the contrary set
forth in the Lease or this Amendment, the City Manager shall have the right to approve detailed
plans and specifications for the renovation work (which may be submitted in phases), such
approval not to be unreasonably withheld, conditioned or delayed so long as such plans and
specifications are consistent in all material respects with the scope of work described below, as
well as the renderings attached hereto (the "Plans"). City acknowledges that Developer and the
City Manager may take into consideration budget (including the Minimum Level of Investment
of $27,000,000.00 and an investment cap of $35,000,000.00) challenging logistics, operations
and project phasing in connection with the renovation work. City further acknowledges and
agrees that any soft costs and hard costs incurred by Developer (including Subtenant
improvements to storefront systems) in connection with the renovation work described herein
from the date that this Amendment is approved by the Miami City Commission shall be included
for purposes of substantiating Developer's Minimum Level of Investment pursuant to Section
5(b) of this Amendment. If the Plans for the first phase of the renovation work have not been
submitted for permit within eighteen (18) months following the Effective Date of this
Amendment, and construction work has not commenced on such first phase within six (6)
months from the date the permits have been issued by City, then City may notify Developer of
such failure and Developer shall have the cure rights set forth in Section 7.1(b) of the Lease.
Developer shall use commercially reasonable efforts to complete the renovation work within four
(4) years from the date the permits are first issued for all work. The foregoing deadlines remain
subject at all times to unavoidable delays as set forth in Section 7.4 of the Lease. The Lease
requires that the public area in the retail area be maintained in first class condition. The
renovation work described herein is intended to bring the public areas in the Lease to first class
condition.
The scope of the renovation work includes the following and shall be performed in
substantial conformance with the Plans:
Lower Level Shopping Promenade
1. Furnish and install all new Developer awnings throughout the interior promenade.
Subtenant awnings will be replaced when Subleases are renewed or new Subtenants
open.
2. Recladding of all columns in porcelain veneer or similar material to match _upper level.
3. Refinish and paint all exposed existing beams, joists, girders, and exposed metal to match
upper level.
4. Furnish and install all new decorative light sconces and fixtures.
5. All new permanent Subtenant build -outs will have storefront systems with anodized
finish that is chrome, brushed aluminum or black.
Upper Level Shopping Promenade
1. Furnish and install all new flooring throughout shopping corridors.
2. Recladding of all columns in porcelain veneer or similar material to match lower level.
3. Refinish and paint all exposed existing beams, joists, girders, and exposed metal to match
lower level.
4. Furnish and install all new decorative light sconces and fixtures along the new awning
structure to improve illumination in the upper walkway.
5. All new permanent Subtenant build -outs will have storefront systems with anodized
finish that is chrome, brushed aluminum or black.
General Renovations to Facility
1. All public staircases, stair finishes, stair surfaces, railing system, public restrooms finish
inclusive of tile, toilet partitions, fixtures and accessories in the retail marketplace
common areas will be replaced.
2. Food court will be remodeled including new flooring, wall treatments, ceiling accessories
including light fixtures, fans and any decorative elements.
3. Refurbishment of the plastic corrugated roof in the vendor marketplace area. The
refurbished roof will have an updated and modern design according to the Plans.
4. All mechanical and electrical exposed vents and receptacles will be replaced
5. All limestone surfaces will be cleaned and refurbished or replaced in accordance with the
Plans.
6. The parking garage will be renovated and expanded to .include additional spaces and
exterior fagade treatments, as well as a retail liner. Light fixtures that have not been
replaced within the last three years and signage for parking garage will be replaced and
updated. The garage will be pressure cleaned and repainted.
7. A new gateway feature will be constructed at main entry axis near the existing flagpoles,
which will serve as a recognizable feature that can be viewed from Biscayne Boulevard;
and it is anticipated that this feature may be a sculpture, fountain or the like, per the
Plans.
8. Developer wayfnding signage will be replaced throughout the facility.
9. Exterior Developer furniture including benches, integrated planters, and garbage
receptacles will be replaced.
10. Renovation of perimeter landscaping per the Plans.
May 27, 2'014
Gm ZYSCOVICH
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SLIDE 5 C ZYSCOVICH
BAYSIDE MARKETPLACE
SLIDE 6
BAYSIDE MARKETPLACE
(ZGP ZYSCOVICH
A P. C R I T r: C T 5
EXHIBIT "D"
INSURANCE REQUIREMENTS FOR SUBTENANTS
I. Commercial General Liability
A. Limits of Liability
Bodily Injury and Property Damage Liability
Each Occurrence $1,000,000
General Aggregate Limit $2,000,000
Products/Completed Operations $1,000,000
Personal and Advertising Injury $1,000,000
Damage to Rented Premises $ 100,000
B. Endorsements Required
City of Miami listed as an additional insured
Contingent Liability & Contractual Liability
Premises & Operations Liability
Additional Insured Endorsement required
Primary and Non Contributory Liability
lI. Business Automobile Liability
A. Limits of Liability
Bodily Injury and Property Damage Liability
Combined Single Limit
Any Auto/Owned Autos/Scheduled
Including Hired, Borrowed or Non -Owned Autos
Any One Accident $1,000,000
B. Endorsements Required
City of Miami listed as an Additional Insured
III. Worker's Compensation
Limits of Liability
Statutory -State of Florida
Waiver of subrogation
Employer's Liability
A. Limits of Liability
$100,000 for bodily injury caused by an accident, each accident.
$100,000 for bodily injury caused by disease, each employee
$500,000 for bodily injury caused by disease, policy limit
IV. Business Personal Property
Subtenant shall maintain and afford coverage for business personal property, including
leased hold improvements subject to special form causes of loss (All Risk) including wind and
hail with a valuation option of replacement cost, including coverage for business interruption,
loss of income and extra expense coverage on an actual loss sustained basis, or alternate
coverage form,. covering the interruption or suspension of business operations, the necessary
extra expense incurred, and any Ioss of income with consideration to the continuation of all
normal charges and continuing expenses, including continuing expenses acquired d -rough
contractual obligations, and payroll resulting from a covered cause of loss. Subtenant shall also
maintain in place coverage for flood insurance, if applicable.
V. Liquor Liability (to the extent Subtenant serves liquor)
A. Limits of Liability
Each Occurrence $1,000,000
Policy Aggregate $1,000,000
City of Miami listed as an additional insured
The above policies shall provide the City of Miami with written notice of cancellation or
material change from the insurer not less than (30) days prior to any such cancellation or material
change, or in accordance to policy provisions.
Companies authorized to do business in the State of Florida, with the following
qualifications, shall issue all insurance policies required above:
The company must be rated no less than "A" as to management, and no less than "Class
V" as to Financial Strength, by the latest edition of Best's Insurance Guide, published by A.M.
Best Company, Oldwick, New Jersey, or its equivalent. All policies and /or certificates of
insurance are subject to review and verification by Risk Management prior to insurance
approval.
Subtenant shall make available, and provide the City upon request, with copies of all
insurance policies, including any and all applicable endorsements.