HomeMy WebLinkAboutReso 2010-1658
RESOLUTION NO. 2010 -.J ~ 58
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF SUNNY
ISLES BEACH, FLORIDA, APPROVING A GROUND LEASE, DEVELOPMENT
AGREEMENT AND DESIGN-BUILD AGREEMENT BETWEEN THE CITY OF
SUNNY ISLES BEACH AND 4M INVESTORS, LLC., IN AN AMOUNT NOT TO
EXCEED FIFTEEN MILLION DOLLARS ($15,000,000.00), IN
SUBSTANTIALLY THE SAME FORM AS EXHIBITS "A", "B" AND "C",
ATTACHED HERETO, TO DEVELOP AN UPSCALE LIFESTYLE
CENTER/PARK AND PARKING GARAGE, AND AQUATIC
ENTERTAINMENT CENTER; AUTHORIZING THE CITY MANAGER AND
THE CITY ATTORNEY TO NEGOTIATE AGREEMENTS WITH 4M
INVESTORS, LLC FOR APPROVAL BY THE CITY COMMISSION WITHIN
SIXTY (60) DAYS; AUTHORIZING THE CITY MANAGER AND THE CITY
ATTORNEY TO DO ALL THINGS NECESSARY TO EFFECTUATE THIS
RESOLUTION; PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, the City of Sunny Isles Beach (the "City") is the owner of certain real property
consisting approximately 3.7 acres on Sunny Isles Boulevard; and
WHEREAS, the City contemplates the development of the 3.7 acres of land for a public
parking garage, a park, and an Aquatic Entertainment Center and associated retail space (the
"Project"); and
WHEREAS, the City provided public notice of its intent to solicit proposals to design and
build the Project on the Property; and
WHEREAS, in response to the City's bid solicitation (RFP No.1 0-1 0-1) issued by the City
on October 6, 2010, 4M Investors, LLC, ("Developer") submitted a response to RFP No.1 0-1 0-1
which was accepted by the City Commission on November 18,2010, via Resolution No. 2010-1632,
to develop the Project; and
WHEREAS, the City desires to enter into a Ground Lease, Development Agreement, and
Design-Build Agreement with Developer, in substantially the same form as the attached Exhibits
"A", "B" and "C", in an amount not to exceed Fifteen Million Dollars ($15,000,000.00).
NOW THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF SUNNY ISLES BEACH, FLORIDA, AS FOLLOWS:
Section 1. Approval of Ground Lease, Development Agreement and Design-Build Agreement.
The Ground Lease, Development Agreement, and Design-Build Agreement between the City of
Sunny Isles Beach and 4M Investors, LLC, attached hereto as Exhibits "A", "B" and "C", are hereby
approved in substantially the same form with the final contracts to be approved by the City
Commission within sixty (60) days. The contract price for Design-Build Agreement must not
exceed a net Fifteen Million Dollars ($15,000,000.00), unless approved by the City Commission.
Section 2. Authorization of City Manager and City Attorney. The City Manager and City
Attorney are authorized to negotiate a final Ground Lease, Development Agreement, and Design-
Build Agreement between the City of Sunny Isles Beach and 4M Investors, LLC.
R20l0-1658 4M Investors Ground Lease and Agmts Page I of2
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Section 3. Authorization of City Manager and City Attorney. The City Manager and City
Attorney are hereby authorized to do all things necessary to finalize negotiations relating to the
Ground Lease, Development Agreement and Design-Build Agreement, attached hereto as Exhibits
"A", "B" and "C", in substantially the same form, and effectuate this Resolution.
Section 4.
Effective Date. This Resolution will become effective upon adoption
PASSED AND ADOPTED this 16th day of December 2010.
ATTEST:
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Jane A. Hines, CMC, City Clerk
Moved by: --:1 ' u ('{\ ~ l\-\M- ~ (C
Seconded by: c.()~~ ~~2..ltJ
Vote: 3-'7...
Mayor Edelcup
Vice Mayor Thaler
Commissioner Brezin
Commissioner Gatto
Commissioner Scholl
-L(Yes)
V (Yes)
--L(Yes)
_(Yes)
_(Yes)
_(No)
_(No)
_(No)
~(No)
~(No)
Page 2 of2
DEVELOPMENT AGREEMEN'
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This DEVELOPMENT AGREEMENT (the "Agreement" f
, 2010 by and among the City of Sunny Isles Beach, -.Y"U
corporation (the "City"), whose address is 18070 Collins Avenue __./ l.:>lt:S Beach, Florida
33160, and 4M Investors, a Florida Limited Liability Company ("Developer"), whose address is
3211 Ponce De Leon Blvd., Suite 301, Coral Gables, FL 33134.
WHEREAS, the City contemplates the development of real property within the Town
Center District for a public parking garage, a public park, and an Aquatic Entertainment Center
("The Project") and certain governmental purposes; and
WHEREAS, the City did provide public notice of its intent to solicit proposals to design
and build an upscale lifestyle center consisting of an aquatic entertainment center, a park and a
parking garage on City owned real property; and
WHEREAS, in response to the Request for Proposals (RFP No. 10-10-1) issued by the
City on October 6,2010, the Developer submitted a Response to RFP No. 10-10-1 which was
accepted by the City Commission on November 18, 2010 with the adoption of Resolution 2010-
1632; and
WHEREAS, the parties desire to enter into this Agreement for development of a portion
of the area within the Town Center District; and
Now, THEREFORE, in consideration of the mutual promises, covenants and agreements
contained herein the parties agree as follows:
ARTICLE I
RECITALS, PURPOSE, PROJECT OVERVIEW AND DESCRIPTION, AND FINDINGS
1.1. Recitals. The foregoing recitations, contained in the "Whereas Clauses", are true and correct
and are hereby incorporated herein by reference. All exhibits to this Agreement are hereby
deemed a part thereof.
1.2 Purpose of Agreement. The purpose of this Agreement is to provide for the
development and redevelopment of land within that portion of the Town Center District, to
establish the relationship between the City and Developer for development of the Project. It is
the intent of the parties hereto that the construction of the Project, and public improvements
associated therewith is the initial stage of development.
ARTICLE II
DEFINITIONS
As used in the Agreement the following terms shall have the meaning set opposite each:
"City" is the City of Sunny Isles Beach, Florida, unless otherwise stated herein all submissions
and approvals shall be made to and by the City Manager or designee.
"City's Representative "means the City Manager or designee.
"Declaration of Covenants and Restrictions" shall mean the declaration of covenants and
restrictions to be agreed to between the City and the Developer in respect to certain maintenance
obligations and access easements for the Project.
"Developer" shall mean 4M Investors, LLC, a Florida Limited Liability Company, or any
successors or assigns.
"Developer Parcels" shall have the meaning set forth in Section 3.2 of this Agreement.
"Improvements" shall mean the Infrastructure Improvements and Vertical Improvements
constructed by the Developer, which shall consist of a parking garage, a park and an Aquarium
Entertainment Center.
"Ground Lease Agreement" shall mean the thirty (30) year ground lease agreement that shall be
agreed to between the City and the Developer in respect to the Land, the business terms of which
will be summarized in a Memorandum of Lease.
"Land" shall mean the property to be leased to the Developer for construction and development
of that portion of the Project and as legally described property owned by the City for the park
and parking garage in Exhibits "A" and "B" of this Agreement.
"Parking Garage" shall have the meaning set forth in Section 4.3.
"Park" shall have the meaning set forth in Section 4.3 of this Agreement.
"Project" The Project shall consist of a three hundred eight (308) space parking garage with a
minimum of 19,000 square feet of commercial retail space, a public park built on 1.5 acres and
an aquatic entertainment complex and other infrastructure and amenities as described in
preliminary plans set forth in Exhibit "C".
"Plans and Specifications" shall mean the documents required for the construction of the Vertical
Improvements and Infrastructure Improvements required by the City to obtain all building,
engineering or other permits required to construct which Plans and Specifications, as approved
by the City, are incorporated herein by reference and made a part hereof, including any
modifications thereto approved the City, as applicable.
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"Vertical Improvements" shall mean the buildings, structures and other improvements as shown
on the Project Development Plan and in the Plans and Specifications to be constructed within the
Project Site in accordance with this Agreement.
ARTICLE III
CONVEYANCES AND EXCHANGES
3.1 Ground Lease. The City and Developer agree and acknowledge that the terms and
provisions of that certain Ground Lease having an initial term of thirty (30) years with option for
two (2) additional thirty (30) year terms shall be the basis of the rights and obligations of the
respective parties.
ARTICLE IV
PERMITTING, CONSTRUCTION, AND DEVELOPMENT
4.1 Scope of Development. The Developer shall be responsible for constructing,
developing, arranging, overseeing, coordinating and administering the development of the
Project and consistent with the Plans and Specifications, subject to the terms and conditions
provided in this Agreement. Any proposed modifications to the Project in any material respect
shall be submitted to the City for its approval. For the purposes of this subsection, the term
"material" shall mean any change to the building footprint or massing, or which affects the
function, uses or parking count within the Parking Garage and Park. The Developer shall
construct and develop, or cause to be constructed and developed, all Improvements which the
Developer is obligated to construct and develop in accordance with Section 5.1 hereof, and
subject to the conditions established in this Agreement.
4.2 Approvals, Permits and Fees.
4.2.1 Developer Obligations. The Developer will be responsible for obtaining from all authorities
having jurisdiction, at its sole cost and expense, all required approvals for development of the
Project including, but not limited to, comprehensive and land use plan amendments, any required
rezoning, special exception or use and site plan approvals, provided the City shall cooperate and
support Developer in connection with attempting to obtain such governmental approvals, and
provided Developer shall apply for the permits for construction consistent with the City's Code
of Ordinances and Florida Building Code. The Project shall be constructed by the Developer
pursuant to the Plans and Specifications and the Site Plan approved by the City. The Developer
shall be responsible for all fees associated with any and all applications and permits including
impact fees and other fees and charges imposed by the other governmental agencies having
jurisdiction of the Project. The City shall waive all permit fees charges by the City for the
development of the Project.
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4.2.2 City Cooperation. The City shall cooperate with the Developer in the processing of all
necessary land use approvals, special exception uses or permits and related deviations from the
City's land development regulations including, but not limited to, building set backs, parking
requirements and landscaping requirements; provided, however, that nothing herein shall waive
the City's police powers and obligations with respect to the review of any such requests or to
require the City to waive any such rights or requirements when acting in a governmental or
regulatory capacity.
4.3 Parking Garage and Park.
4.4.1 The Developer shall be responsible for the construction of a public parking garage
("Parking Garage") and Public Park ("Park"), all as depicted in Exhibit "c" (Preliminary Plans")
and as shown on the Final Plans and Specifications and the approved Site Plan, which shall be
consistent with the City's Code of Ordinances, Land Development regulations, and the Florida
Building Code. Prior to the commencement of construction by the Developer of the Parking
Garage and Park the parties shall enter into a Design/Build Agreement as defined and described
herein.
4.4.2 The Developer and the City will enter into a Declaration of Covenants and Restrictions to
facilitate the construction and operation of the Project. The Declaration of Covenants and
Restrictions shall provide among other items for (1) the operation, maintenance and costs
associated therewith of the public and private facilities and Improvements including the
Infrastructure Improvements on the Project Site and adjacent property; and (ii) easements for
ingress, egress and utilities over portions of the Project Site as shall reasonably be required, the
use rights to be provided within the Parking Garage and Park as contemplated in this Agreement
and the Ground Lease. The Developer shall record the Declaration of Covenants and Restrictions
as agreed to by the Developer and the City prior to the issuance of the first certificate of
occupancy for the Aquatic Entertainment Center.
4.4.3. Upon substantial completion and an acceptance by the City (after a determination by the
City that the Parking Garage and Park have been built consistent with the approval plans), the
Developer will convey the Parking Garage and Park to the City.
ARTICLE V
PROJECT SCHEDULE
5.1 Proiect Schedule. The parties agree that time is of the essence and a Schedule of
Performance by the Developer ("Developers Schedule") is required to establish outside dates and
times of delivery of the various plans, preparation and filing of applications for obtaining the
various plan, preparation and filing of applications for obtaining the various permits and public
approvals and schedule for the construction of the Improvements. The Developer's Schedule is
attached as Exhibit "D" hereto. The Developer shall perform the obligations setforth herein in
accordance with the Developer's Schedule; however, the time periods set forth in the
Developer's Schedule may be extended for each day that the City, in its capacity as Landlord
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hereunder and not in its governmental capacity, unreasonable delays approvals required from the
City under this Agreement. For the purpose of the Developer's Schedule, the date of possession
is March 1, 2012. As contemplated herein, the Project shall be complete upon the issuance of a
final, permanent certificate of occupancy for all Vertical Improvements and certificates of the
Public Services Director that all Infrastructure Improvements have been completed.
5.2 In the event that the Developer fails to comply with the Developer's Schedule, or
within such additional period of time as approved by the City in its sole discretion, and
notwithstanding any other remedies provided for in this Agreement, the City may terminate this
Agreement, the Ground Lease, Parking Agreement and Design/Build Agreement. In such event,
the City shall provide written notice to the Developer of its intent to exercise its rights in
accordance with Section IX within ten (10) days of delivery of such notice.
ARTICLE VI
PROJECT COSTS AND FUNDING
6.1 Developer Funding. Subject to the provisions of Section 8.1 hereof, the parties
agree that prior to the execution of the Design/Build Agreement and this Agreement, the
Developer shall demonstrate its financial commitment and ability to construct the Project by
procuring and presenting to the City a financing commitment from an institution acceptable to
the City and in a form and in such amount as will permit the Improvements to be constructed in
accordance with the Plans and Specifications and approved Site Plan subject only to such
conditions as are reasonably acceptable to the City.
6.2 Maintenance of Improvements. The City and Developer will provide for the
operation and maintenance, and costs associated therewith, of private and public facilities and
improvements, including the Infrastructure Improvements, on the Project Site as set forth in the
Declaration of Restrictions and Covenants and the Ground Lease Agreement. The maintenance
of all facilities and improvements pursuant to this paragraph shall be consistent and in
compliance with the City's Code of Ordinances
ARTICLE VII
REPRESENTATION AND WARRANTIES OF DEVELOPER
7.1 The Developer represents and warrants as follows:
7.1.1 Corporate Organization. The Developer is a limited liability company duly organized and
validly existing in good standing under the laws of the State of Florida and duly qualified to do
business in the State of Florida. It has all requisite power and authority to own and operate its
properties, to carryon its business as presently conducted and enter into and perform its
obligations under this Agreement and pursuant to each document and agreement to which it is or
will be a party as contemplated by this Agreement.
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7.1.2 No Conflicts. Neither the execution and delivery of this Agreement or any document will
conflict with or result in any breach of, or constitute a default under any indenture, mortgage,
deed of trust or other instrument or agreement to which it is a party or by which it is bound, or by
which any of its property or assets is subject.
7.1.3 Power and Authorization. The Developer has full power, authority and legal right to
execute and deliver, and to perform and observe the provisions of this Agreement and all other
instruments provided for herein to which it is a party. The Developer has duly and effectively
taken all action required on its part for the due execution, delivery and performance of this
Agreement.
7.1.4 No Default. The Developer is solvent and (i) has filed all tax returns which are required to
be filed by it and paid all taxes required to be paid by it; and (ii) is not in default in the payment
of any taxes levied or assessed against it or any if its assets, or any judgment, order, decree, rule
or regulation of any court, arbitration,. administrative agency or other governmental authority to
which it may be subject which would have a material affect on Developer's ability to perform
pursuant to this Agreement.
7.1.5 No Misstatements or Omissions. Neither this Agreement nor any certificate, statement or
other document furnished or to be furnished by the Developer in connection with the transaction
contemplated contains or will contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements contained herein or therein not
misleading.
7.2 The City represents as follows:
7.2.1 Authority. The execution and delivery of this Agreement has been approved at a duly
convened meeting and the same is binding and enforceable against the City in accordance with
its terms. The City has the power, authority and legal right to execute, deliver and perform and
observe the provisions of this Agreement and all other instruments provided for herein to which
it is a party, the City has duly and effectively taken all action required on it's respective parts for
the due execution, delivery and performance of this Agreement.
7.2.2 Conflict. Neither the execution or delivery of this Agreement or any document will conflict
with or result in a breach of or constitute a default of any indenture agreement or other
instrument to which it is a party or by which it is bound or by which any of its properties or
assets its subject to.
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ARTICLE VIII
DEVELOPER DEFAULTS, REMEDIES, TERMINATION AND FURTHER RIGHTS
8.1 Event of Default. The occurrence of anyone or more of the following shall
constitute an Event of Default by the Developer hereunder:
8.1.1 If the Developer defaults in the performance of any obligation imposed upon under this
Agreement or if the Developer fails to complete any item required to be completed under the
Project Schedule at the time called for therein, and the Developer does not commence to cure
such default within ten (10) days after delivery of notice of such default from the City, and
diligently pursue such cure to completion within ten (10) days after delivery of such notice, or,
with respect to non-monetary defaults, the Developer does not diligently pursue such cure to
completion within a reasonable period of time;
8.1.2 If any statement, representation or warranty made by the Developer herein or in any writing
now or hereafter furnished in connection herewith shall be false in any material respect at the
time made; or
8.1.3 If, (a) an order, judgment or decree is entered by any court of competent jurisdiction
adjudicating the Developer bankrupt or insolvent, approving a petition seeking a reorganization
or appointing a receiver, trustee or liquidator of the Developer or of all or a substantial part of its
assets, or (b) there is otherwise commenced as to the Developer or any of its assets any
proceeding under any bankruptcy, reorganization, arrangement, insolvency, readjustment,
receivership or similar law, and if such order, judgment, decree or proceeding continues unstayed
for more than sixty (60) days after any stay thereof expires.
8.1.4 In the Event of Default as provided above, the Developer shall commence to cure such
default within the ten (10) days after delivery of notice of default by the City upon the terms and
conditions as provided in Section 10.9 below.
8.2 Remedies. If an Event of Default occurs and there is no cure, or if the Developer fails to
comply with the requirements of this Article then the City shall have the right to terminate this
Agreement and pursue all legal remedies available to it.
ARTICLE IX
CITY DEFAULTS, REMEDIES, TERMINATION AND FURTHER RIGHTS
9.1 Event of Default. The occurrence of anyone or more of the following shall
constitute a Event of Default by the City as applicable:
9.1.1 If the City defaults in the performance of any obligation imposed upon it, or if it fails to
fund any obligation required to be funded pursuant to this Agreement, and the City does not
commence to cure such default within thirty (30) days after delivery of notice of such default
from the Developer, and diligently pursue such cure to completion within thirty (30) days after
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delivery of such notice, or, with respect to non-monetary defaults, the City, as applicable, does
not diligently pursue such cure to completion within a reasonable period of time; or
9.1.2 If any statement, representation or warranty made by the City or in any writing now or
hereinafter furnished in connection herewith shall be false in any material respect at the time
made.
9.1.3 In the Event of Default as provided above, the City shall commence to cure such default
within thirty (30) days after delivery of notice of default by the Developer upon the terms and
conditions as provided in Section 10.9 below.
ARTICLE X
GENERAL PROVISIONS
10.1 Insurance. The Developer or its agents or contractors shall procure and maintain at its own
expense and keep in effect during the term of the Agreement a policy or policies of insurance
which must include the following coverage and minimum limits of liability (in the event the
agents or subcontractor for the Developer procure such coverage as defined hereinafter then, in
that event, the Developer and the City shall be named as additional insured):
10.1.1 Worker's Compensation Insurance for statutory obligations imposed by Worker's
Compensation or Occupation Disease Laws, including, where applicable, the United States
Longshoremen's and Harbor Worker's Act, the Federal Employer's Liability Act and the Homes
Act. Employer's Liability Insurance shall be provided with a minimum of One Hundred
Thousand and 00/1 00 dollars ($100,000.00) per accident. Developer shall be responsible for the
employment, conduct and control of its employees in the course of their employment.
10.1.2 Comprehensive Automobile Liability Insurance for all owned, non-owned and hired
automobiles and other vehicles used by the Developer in the performance of the work with the
following minimum limits of liability:
$500,000.00 Combined Single Limit, Bodily Injury and Property Damage Liability per
occurrence.
10.1.3 Comprehensive General Liability with the following minimum limits of
liability:
$2,000,000.00 Combined Single Limit, Bodily Injury with Property Damage Liability per
occurrence.
Coverage shall specifically include the following with mInImUm limits not less than those
required for Bodily Injury Liability and Property Damage:
a. Premises and Operations;
b. Independent Contractors;
c. Product and Completed Operations Liability;
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d. Broad Form Property Damage;
e. Personal Injury coverage with employment contractual exclusions removed
10.1.4 The required insurance coverage shall be issued by an insurance company authorized and
licensed to do business in the State of Florida, with the following minimum qualifications in
accordance with the latest edition of A.M. Best's Insurance Guide:
Financial Stability B+ A+
10.2 Bond to be Provided by the Developer. Before the commencement of any construction
undertaken by the Developer as provided in this Agreement and other related documents hereof,
if applicable, the Developer shall furnish and provide to the City a payment and performance
bond satisfying the requirements of Section 255.05, Florida Statutes, for such improvements
described in this Agreement to be performed by the Developer. The Bond must guarantee the
completion of such work and the payment to all persons as provided in Section 255.05 who
furnish labor, services or materials for the construction of the improvements contemplated by
this Section and include the City as co-obligees. The Bond shall comply with all requirements of
the Design-Build Agreement entered into between the parties.
10.3 Compliance with Procurement Procedures. In procuring the services of persons or firms to
construct the Infrastructure Improvements, to the extent remaining to be performed by the
Developer after the date of this Agreement, which comprise public construction works in excess
of $200,000.00 as provided in Section 255.20, Florida Statutes, the Developer shall
competitively bid such services as required by said Section 255.20, Florida Statutes, in
accordance with procedures prescribed by the Office of the Public Services Director. The
Developer shall prepare the bidding forms, the conditions of contract and the agreements subject
to the approval of the Public Services Director with regard to form.
10.4 Taxes and Other Charges. The Developer will pay and discharge or cause to be paid and
discharged all taxes, charges, liabilities or claim of any type at any time assessed against or
incurred by the Developer or which could become a lien against the Developer relating to the
Project Site which would affect the parking rights of the City. The City agree to cooperate with
the Developer to attempt to exempt portions of the Project which are made available for public
use from the obligation to pay real estate tax to the extent legally permissible. Nothing in this
subsection shall require the payment of any such sum if the Developer promptly notifies the City
and by appropriate proceedings contests the same in good faith.
10.5 Non-liability of City. No member, official or employee of the City shall be personally liable
to the Developer, a builder or to any person with whom the Developer or any builder shall have
entered into any contract, or to any other person in the event of a default or breach by the City, or
for any amount which may become due to the Developer or any other person under the terms of
this Agreement.
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10.6 Non-Discrimination. The Developer shall not discriminate against any person, or group of
persons, on account of race, color, creed, sex, age, religion, national origin, marital status,
handicap, having children or ancestry in the sale, lease sublease, transfer, use, occupancy, tenure
or enjoyment of all of any part of the Vertical Improvements, or in the design and construction of
Infrastructure Improvements.
10.7 Approval. Whenever this Agreement requires the City or the Developer to approve any
contract, document, plan, specification, drawing or other matter, such approval shall not be
unreasonably withheld, delayed or conditioned. The Developer and the City shall perform all
obligations imposed upon them under this Agreement in a reasonable, prompt and timely
fashion.
10.8 Force Majeure. Subject to providing written notice of such an event and the party's intention
to exercise the applicability of this provision, no party to this Agreement shall be deemed in
default, and the time for performance of any required act hereunder shall be extended for such
period, where such a default is based on a delay in performance as a result of war, acts of
terrorism, insurrection, strikes, lockouts, riots, floods, earthquakes, fires, casualty, hurricane, acts
of God, epidemic, quarantine restrictions, freight embargo, shortage of labor or materials,
interruption of utilities service, lack of transportation, government restrictions of priority,
litigation, and other acts or figures beyond the control or without the control of either party;
provided, however, that the extension of time granted for any delay caused by any of the
foregoing shall not exceed the actual period of such delay, and in no event shall any of the
foregoing excuse any financial inability of a party.
10.9 Notices. All notices to be given hereunder shall be in writing and personally delivered or
sent by registered or certified mail, return receipt requested, or delivered by an air courier service
utilizing return receipts to the parties at the following addresses (or to such other or further
addresses as the parties may designate by like notice similarly sent) and such notices shall be
deemed given and received for all purposes under this Agreement three (3) business days after
the date same are deposited in the United States mail, if sent by registered or certified mail, or
the date actually received if sent by personal delivery or air courier service, except that notice of
a change in address shall be effective only upon receipt.
City:
Rick Conner, City Attorney
City of Sunny Isles Beach
18070 Collins Avenue, 4th Floor
Sunny Isles Beach, FL 33160
With a copy to:
Hans Ottinot, City Attorney
City of Sunny Isles Beach
18070 Collins Avenue, 4th Floor
Sunny Isles Beach, FL 33160
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Developer:
4M Investors, LLC
3211 Ponce De Leon Blvd., Suite 301
Coral Gables, FL 33134
with a copy to:
Weiss, Serota, Helfman, Pastoriza, Cole, et al.
Attn: Clifford Schulman, Esq.
3211 Ponce de Leon Boulevard
Coral Gables, Florida 33134
Fax No. (305) 854-2323
10.10 Time. Time is of the essence in the performance by any party of its obligations hereunder.
10.11 Entire Agreement. This Agreement constitutes the entire understanding and agreement
between the parties and supersedes all prior negotiations and agreements between them with
respect to all or any of the matters contained herein.
10.12 Amendment. This Agreement may be amended by the parties hereto only upon the
execution of a written amendment or modification signed by the parties.
10.13 Waivers. All waivers, amendments or modifications of this Agreement must be in writing
and signed by all parties hereto. Any failures or delays by either party in asserting any of its
rights and remedies as to any default shall not constitute a waiver of any other default or of any
such rights or remedies. Except with respect to rights and remedies expressly declared to be
exclusive m this Agreement, the rights and remedies of the parties hereto are cumulative, and the
exercise by either party of one or more of such rights or remedies shall not preclude the exercise
by it, at the same or different times, or any other rights or remedies for the same default or other
default by the other party.
10.14 Indemnification. In consideration of the City granting certain development incentives
pursuant to this Development Agreement to the Developer in connection with the development
of the Project, the Developer shall pay, indemnify and save harmless the City, its agents, elected
and appointed officers, attorneys and employees from all suits, actions, claims, demands,
damages of every kind and description to which the City, or their agents, officers, attorneys or
employees may be held liable by the court of competent jurisdiction by reason of injury to
persons or death or property damage, resulting from or growing out of any negligence or fault of
the Developer, its agents or employees, or its contractors or subcontractors occurring in
connection with any building, construction, installation or development work, service or
operation being undertaken or performed by or for the Developer, in, on or over the Project Site
with respect to the construction of the Project.
10.14 (a). Provided, however, that the indemnification provided in and contemplated
by this section shall not be applicable to the extent that a decision or judgment of a court of
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competent jurisdiction holds that any injury to persons or death or property damage was
attributable to acts of negligence or fault of the City or it's agents, officers, attorneys or
employees or was not attributable to acts of negligence or fault of the Developer, its agents or
employees or was not attributable to acts of negligence or fault of the Developer, its agents or
employees, or its contractors of subcontractors.
1 0.14 (b). In the event that a decision or judgment of a court of competent
jurisdiction holds that any injury to persons or death or property damage was the result of joint
acts of any or all of the parties, then each party shall be responsible for its proportionate share of
those damages to the extent provided by law.
1 0.14 (c). The City does not waive the limits of sovereign immunity set forth in
Section 768 28, Florida Statutes.
10.14 (d). No recourse shall be had for any damages or claims based upon any
representation, obligations, covenant or agreement in this Agreement against any past, present or
future officer, member, legal counsel, employee, director or agent of the City, any successor
public corporation thereto under any rule of law or equity, statute or constitution or by the
enforcement of any assessment or penalty or otherwise, and all such liability of any such
officers, members, legal counsels, employees, directors or agents as such is hereby expressly
waived and released as a condition of and consideration for the execution of the Development
Agreement.
This Section shall survive the completion date of the Project and shall remain in full force and
effect until all obligations and requirements for construction of the Improvements under this
Development Agreement have been completed.
10.15 Assignment. This Agreement and the rights, duties, obligations and privileges of the
parties herein are non-assignable and any purported assignment without the consent of the parties
shall be void and of no force and effect and shall constitute a default of this Agreement, provided
Developer may assign its rights under this Agreement in connection with financing obtained by
Developer with the consent of the City being required. This Agreement shall be binding upon
and inure to the benefit of the successors and assigns of the parties.
10.16 Severability. The invalidity, illegality or unenforceability of anyone or more of the
provisions of this Agreement shall not affect any other provision of this Agreement, but this
Agreement will be construed as if such invalid, illegal or unenforceable provision had never been
contained herein.
10.17 Contingent Fee. The Developer represents and warrants that it has not employed or
retained any person to solicit or secure this Agreement and that they have not paid or agreed or
promised to pay any person any fee, commission, percentage, gift or any other consideration
contingent upon or resulting from the execution of this Agreement.
12
10.18 Independent Contractor. In the performance of this Agreement, the Developer will be
acting in the capacity of an independent contractor and not as an agent, employee, partner,
developer or association of the City. The Developer and builders, if any, employees or agents
shall be solely responsible for the means, method, technique, sequences and procedures utilized
by the Developer in the performance of this Agreement.
10.19 Non-merger. None of the terms, covenants, agreements or conditions set forth in this
Agreement shall be deemed to be merged with any deed conveying title to the lots in the Project
Site. This Agreement is intended to supersede the Letter of Understanding between the City and
Developer dated July 14,2010.
10.20 Not A General Obligation. Neither this Agreement nor the obligations imposed upon the
City hereunder shall be or constitute an indebtedness or general obligation of the City within the
meaning of any constitutional, statutory or charter provisions requiring the City to levy ad
valorem taxes nor a lien upon any properties of the City.
10.21 Agreement Not a Development Agreement or Order. This Agreement is not, and shall not
be construed to be, a development agreement as that term is defined by Section 163.3220,
Florida Statutes, et seq. and none of the provisions of Florida law applicable to development
agreements pursuant to that statute or related statutes shall apply to this Agreement. No permit or
order issued pursuant to, or affected by, this Agreement shall be deemed to be a development
permit or development order as those terms are defined in Chapter 380, Florida Statutes, or
Chapter 163, Part 11, Florida Statutes.
10.22 Parties to Agreement. This is an agreement solely among the City and the Developer. The
execution and delivery hereof shall not be deemed to confer any rights or privileges on any
person not a party hereto other than the successors or assigns of the City or the Developer.
1 0.24 Venue: Applicable Law. All legal actions arising out of or connected with this Agreement
must be instituted in the Circuit Court of Miami-Dade County, Florida, or United States District
Court for the Southern District of Florida. The laws of the State of Florida shall govern the
interpretation and enforcement of this Agreement.
10.25 Agreement to be Recorded. A memorandum of this Development Agreement in a form
acceptable to the City and the Developer shall be recorded in the Public Records of Miami-Dade
County, Florida, and constitutes a covenant running with the land and shall be binding on any
successors and assigns of the parties hereto.
[SIGNATURES ON FOLLOWING PAGE]
13
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and
year first above written.
Signed in the presence of:
City of Sunny Isles Beach, Florida
a municipal corporation
Print Name:
By:
Rick Conner, City Manager
Print Name:
Attest:
Jane A. Hines, CMC, City Clerk
APPROVED AS TO FORM
AND LEGAL SUFFICIENCY
Hans Ottinot, City Attorney
4M Investors, LLC, a Florida
limited liability company
By:
Print Name: Jose Milton
Title: Manager
Print Name:
Print Name:
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
The foregoing instrument was acknowledged before me this _ day of , 2011,
by the of 4M INVESTORS, LLC,
(check one) 0 who is personally known to me or 0 who produced
as identification.
Notary Public
Print Name:
My Commission expires:
14
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
The foregoing instrument was acknowledged before me this _ day of , 2011, by
, Manager, of the City of SUNNY ISLES BEACH, FL, who is personally known to me.
Notary Public
Print Name:
My Commission expires:
H:\20 I 0\1 00231 \Development Agreement Working draft. doc
15
Exhibit A
Exhibit B
Exhibit C
Exhibit D
LIST OF EXHIBITS
legal description of Leased Premises
Legal description of Landlord's Property
Conceptual Site Plan! Preliminary Plans
Project Development Schedule
H:\20 I 0\1 00231 \Development Agreement Working draft. doc
16
LEASED PREMISES
Parcel 1
Folio No. 31-2214-007-0030
Lots 2, 3, 4, less Right of Way of SECOND REVISED PLAT BELLA VISTA
SUBDIVISION, according to the plat thereof, as recorded in Plat Book 50, Page 76, of
the Public Records of Miami-Dade County, Florida.
EXHIBIT "A"
LANDLORD'S PROPERTY
Parcel 1
Folio No. 31-2214-007-0040
Lots 5, 6, and 6-A of the Second REVISED PLAT OF BELLA VISTA SUBDIVISION,
according to the Plat thereof, recorded in Plat Book 50, at Page 76 of the Public Records
of Miami-Dade County, Florida, situated at 215-255 Sunny Isles Boulevard, Sunny Isles
Beach, Miami-Dade County, Florida 33160.
Parcel 2
Folio No. 31-2214-007-0050
Lot 7, of SECOND REVISED PLAT OF BELLA VISTA SUBDIVISION, according to
the Plat thereof, as recorded in Plat Book 50, at Page 76, of the Public Records of Miami-
Dade County, Florida.
Parcel 3
Folio No. 31-2214-07-0060
Lot 8 of the SECOND REVISED PLAT OF BELLA VISTA, according to the Plat
thereof, as recorded in Plat Book 50, at Page 76, of the Public Records of Miami-Dade
County, Florida
EXHIBIT "B"
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DEVELOPMENT AGREEMENT BETWEEN THE CITY OF
SUNNY ISLES BEACH AND 4M INVESTORS, LLC.
DATED AS OF ,2010
DEVELOPER'S SCHEDULE
Approval of Contract Documents
(Ground Lease, Development Agreement,
and Design/Build Agreement by the City)
December 16, 2010
Site Plan Approval
July 1, 2011
Demolition and Building Permits Issuance Dates
January 4,2012
Possession Date
March 1,2012
Commencement of Site
Clearance/Demolition
March 1,2012
Commencement of Construction
June 1,2012
Construction Completed
(Issuance of certificate of occupancy)
November 30, 2013
Project Opening
December 1, 2013
Note: Dates discussed herein may be modified by mutual agreement. These dates
assume diligent cooperation between City of Sunny Isles Beach and the Developer.
EXHIBIT "D"
U:\City Attorney\HANS\201O Documents\4m Investors\DEVELOPMENT SCEDULE EXHIBIT D.doc
GROUND LEASE
by and between the
Sunny Isles Beach, a Florida municipal corporation
(collectively "Landlord")
And
4M Investors, LLC,
a Florida limited liability company
("Tenant")
U:\City Attorney\HANS\20 I 0 Documents\4m Investors\GROUND LEASE WORKING DRAFT 11.16.1 O.doc
GROUND LEASE
This Ground Lease (the "Lease") is made as of this _day of , 2010, by and
between the City of Sunny Isles Beach, Florida, a Florida municipal corporation ("City")
(collectively, the "Landlord"), whose address is 18070 Collins Avenue, Sunny Isles Beach,
Florida 33160, and 4M Investors, a Florida Limited Liability Company ("Tenant"), whose
address is 3211 Ponce De Leon Blvd., Suite 301, Coral Gables, FL 33134.
WIT N E SSE T H:
WHEREAS, the City is the fee simple title holder of (i) that certain real property located
in Sunny Isles Beach, Miami-Dade County, Florida, which is legally described in Exhibit "A"
attached hereto. The land described in Exhibit "A" is defined as the leased Premises, which are
the subject of this Lease. The Premises encompasses approximately 60,000 square feet (1.5
acres) ofland; and
WHEREAS, Tenant desires to lease the Premises from Landlord, and Landlord desires to
lease its real property (the Premises) to Tenant, on the terms and covenants and subject to the
conditions set forth in this Lease; and
WHEREAS, the Landlord intends to build a park and parking garage on real property
owned by Landlord which is legally described in Exhibit "B", and said property is located
adjacent to the Premises. The property described in Exhibit "B" is hereinafter defined as
Landlord's Property.
NOW, THEREFORE, in consideration of the mutual promises and agreements set forth
below, and other good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Landlord and Tenant agree that the foregoing recitals are true and correct and
further agree as follows:
ARTICLE 1
Premises/ Term
Section 1. Premises/Term. Landlord, in consideration of the rents and covenants hereinafter
specified to be paid, kept and performed by Tenant, hereby demises and leases to Tenant, and
Tenant hereby takes and hires from Landlord, the Premises previously identified in Exhibit "A"
which is attached hereto and incorporated herein upon the terms, conditions and covenants
hereinafter set forth for (i) an initial term of thirty (30) years commencing on the date of issuance
of a "Certificate of Occupancy" for use of Tenant's Project as described in Exhibit "C" hereof
and expiring thirty (30) years from the date of issuance of Certificate of Occupancy and
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affording the Tenant two (2) thirty (30) year options to renew and a third option for nine (9) year
term.
Section 2. Earlv Termination. This Lease can be terminated without financial costs to either
the Landlord or Tenant by providing thirty (30) days notice to either party if Tenant is not able to
hire an "Acceptable Vendor" as defined in Article VIII to operate the Aquatic Center as
described in Exhibit "C", and/or if Tenant fails to obtain the appropriate funding on its
construction financing for the construction of the Aquatic Center. Tenant shall have retained an
Acceptable Vendor and obtain financing for the Aquatic Center within six months from the date
of approval of this Lease by the City Commission.
Section 3. Access to Premises. Subject to Tenant performing its obligations under this Lease,
including payment of Rent hereunder, Landlord grants Tenant the non-exclusive right of
reasonable ingress to egress from the Premises over Landlord's Property for itself and its
officers, employees, agents, subtenants, invitees, vendors, and contractors. Tenant's right of
access is subject to rules and regulations adopted by the City or other Governmental Authority.
Tenant shall not interfere with or impair the use of the park and parking garage by the general
public.
Section 4. City's Use of Aquatic Center. Landlord shall have the right to use those portions
of Tenant's Improvements described as ballroom or banquet facilities for City's sponsored
events nine (9) times during each calendar year; provided forty five (45) days notice is provided
to Tenant. Landlord shall be obligated to use catering services as designated by Tenant or
Vendor.
Section 5. Use of Premises. Tenant, at Tenant's sole expense, is authorized to develop,
finance, construct, manage, maintain and operate an Aquatic Center and retail stores as described
in Exhibit "C". Tenant may not use the Premises for any other purpose without prior written
consent of the Landlord, which Landlord may grant or withhold in its sole and absolute
discretion.
ARTICLE II
Rent
Section 1. Rent. Commencing upon year five (5) of the lease ("Base Year") the Tenant
covenants with respect to the Premises to pay Landlord a net annual rental each "Lease Year" (as
hereinafter defined), over and above the other additional payments to be made by Tenant as
hereinafter provided, in an amount equal to Three Hundred Twenty Four Thousand Dollars
($324,000.00 (Said net annual rental being hereinafter sometimes called "Basic Rent"), payable
in advance in quarterly installments on the first day of each quarter of the Lease Year during the
Term hereof to Landlord at 18070 Collins Avenue, Sunny Isles Beach, FI 33160 or at such other
place as Landlord may from time to time direct by written notice to Tenant. If the obligation to
pay Basic Rent commences on a date other than the first day of the quarter or the Lease is
terminated before the end of a the quarter during a Lease Year, the Basic Rent for such Lease
Year shall be proportionately reduced. For purposes of this Lease, "Lease Year" shall mean the
twelve (12) month period from January I through December 31 of any year during the Term,
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provided that the first Lease Year shall commence on the date the applicable Term commences
and end on December 31 of that calendar year and the Lease Year for the calendar year in which
the Term expires shall commence on January 1 of such calendar year and end on the expiration
date of the Term.
Section 2. Ground Rental Adjustment. Commencing in the first day in the fifth (5th) year of
the Lease thereafter every fifth (5th) year, the rent shall be adjusted by the percentage increase in
the Consumer price Index all Urban consumers ("CPI") published by the U.S. Department of
Labor Statistics over the CPI for the preceding twelve (12) months. If the CPI does not increase
from the first year of the Lease to the Base Year and thereafter every fifth (5th) year, the rent
shall increase by three percent (3%) of the annual rent. In the event that the CPI should cease to
the published, the parties shall use their best good faith efforts to agree upon a substitute index
that most closely approximates the CPI gauging changes in the cost of living for urban wage
earners.
Section 3. Percentage Rent on Gross Sales. Subject to compliance with applicable laws,
Tenant may sell food, beverages and miscellaneous goods such as gifts, shirts, caps and souvenir
to its customers or rent the banquet facilities. For the grant of the foregoing right and privilege,
In addition to base rent, Tenant shall pay Landlord, throughout the term of the Lease an amount
equal to Four percent (4%) of the gross receipts of such sales, less the amount of the base rent.
Gross Receipts shall mean the total gross dollar amount of sale (including both cash and credit
sales) of all merchandise sold, admission tickets, and revenues generated from banquet facilities,
less applicable state and local sales taxes paid by Tenant's customers. Tenant shall provide to the
Landlord an annual accounting of Gross Receipts and Percentage Rent within Ninety (90) days
after the end of each Lease year.
Section 4. Sales Tax If at any time during the Term, under the laws of the State of Florida or
a political subdivision thereof, a tax or excise on rents or other tax (other than a general income
tax), however described, is levied or assessed by said state or a political subdivision thereof
against Landlord or on the Basic Rent (as hereinafter defined), unless constituting or in
substitution for an income tax of general application, Tenant covenants to pay and discharge
such tax or excise on rents or other tax before any fine, penalty, interest, or cost may be added
thereto for the nonpayment thereof, provided that Tenant shall not be in default for failing to pay
such tax until thirty (30) days shall have expired from the date on which Landlord notified
Tenant of the tax or on the date Tenant otherwise learns of the tax, whichever is earlier, and
Tenant shall not be responsible for penalties, interests or costs accruing at any time or times prior
to the expiration of such period. Without limiting the generality of the foregoing, Tenant shall, to
the extent required by law, pay the Florida sales tax on rent payable by subtenants in the
Improvements and rent payable under this Lease under Florida Statutes Section 212.031 (or any
future statute), unless such sales taxes are not due under the anti-pyramiding provisions of
Florida Statutes Section 212.031 (2) (b) (or any future statute). Upon request by Landlord,
Tenant covenants to furnish Landlord with original receipts, or photostatic copies or duplicate
originals thereof, evidencing payment of such tax or excise on rents, or other tax, before any fine,
penalty, interest or cost may be added thereto for the nonpayment thereof~ except as provided
above.
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Section 5. Late Payment Penalty. If any payment required hereunder by Tenant is not made
within five (5) days of the due date, Tenant shall pay monthly finance charges on the unpaid
amount at the rate of three percent (3%) from the payment due date until paid in full. If any
check tendered by tenant in payment of fees or charges under this Lease is not paid upon
presentment by Tenant's bank, the Landlord may, upon written notice to Tenant, require all
future payment to be made by certified check, money order, or other means to ensure payment of
good funds.
Section 6.
Term.
Rent abatement. Tenant shall pay no Rent during the first four (4) years of the
Section 7. Security Deposit. Upon execution of the Lease, Tenant shall deposit with
Landlord the sum equal to two (2) years of rent or $648,000 to be held by the Landlord as
security for Tenant's full, faithful and timely performance of its obligations under this Lease (the
"Security Deposit"). The Security Deposit shall be in the form of cash, irrevocable credit or
retainage from the construction of the Improvements on Landlord's Property performed by
Tenant. If the Security Deposit is in the form of cash, Landlord shall not be required to earn or
pay interest to Tenant on the Security Deposit, or to keep the Security Deposit in a separate fund
apart from other Landlord's funds. If the Security Deposit is in the form of a letter of credit, the
credit must be in a form, and drawn on a bank, reasonably acceptable to Landlord, and must
remain in effect throughout the term of the Lease and for a period of sixty (60) days thereafter.
If the letter of credit expires at a date certain, Tenant must provide a replacement letter of credit
to Landlord at least thirty (30) days before its expiration date.
ARTICLE III
Net Lease
Section 1. Net Lease. This Lease is a net lease and the Basic Rent and Additional Rent and
all other sums payable hereunder to or on behalf of Landlord shall be paid without notice or
demand, and without set-off, counterclaim, abatement, suspension, deduction or defense.
Landlord shall not be required to make any expenditure, incur any obligation, cost, expense, or
liability of any kind in connection with this Lease or the financing ownership, development,
construction, maintenance, operation, or repair of the Premises or its Improvements.
ARTICLE IV
Taxes and Other Charges
Section 1. Taxes/Impositions. Subject to Section 4 of this Article IV, commencing upon the
date the possession of the Premises have been delivered to Tenant, Tenant covenants to pay,
before delinquency and before any fine, penalty or interest may be added thereto for the
nonpayment thereof, all real estate taxes, personal property taxes, assessments, water rates and
charges, and other governmental charges, general and special, ordinary and extraordinary,
unforeseen as well as foreseen, of any kind and nature whatsoever, including but not limited to
5
U:\City Attorney\HANS\201 0 Documents\4m Investors\GROUND LEASE WORKING DRAFT I I.l6.1 O.doc
assessments for public improvements or benefits, (all of which taxes, assessments, water rates or
charges, levies, and other governmental charges are hereinafter referred to as "Impositions"), that
are assessed, levied, confirmed, or imposed, or that become a lien upon or become payable in
respect of the Premises or the Improvements during the Term. If by law any such Imposition is
payable, or may at the option of the taxpayer be paid, in installments, Tenant may pay the same
in installments before the same respectively become due and before any fine, penalty or interest
may be added thereto for the nonpayment of any such installment. Any Imposition relating to a
calendar year, a part of which is included within the Term and a part of which is included in a
period of time after the termination of this Lease, whether or not such Imposition shall be
assessed, levied, confirmed, imposed, or become a lien upon the Premises, or shall become
payable, during the Term, shall be adjusted as between Landlord and Tenant, so that Landlord
shall pay that proportion of such Imposition which that part of such calendar year included in the
period of time after the termination of this Lease bears to such calendar year and Tenant shall
pay the remainder thereof. Tenant shall furnish Landlord with receipts or other evidence of such
payments upon request. Notwithstanding the foregoing, Landlord shall support any application
for ad valorem tax exemption filed by Tenant.
Section 2. Protest of Impositions. Tenant may pay any such Imposition under protest, and if
it shall elect to procure a refund of all or any part of such Imposition so paid, may, at its own
expense, take such action as, it deems appropriate and any such action may be taken, filed,
instituted, and prosecuted in the name of Tenant or Landlord, provided Tenant complies with all
applicable statutory and other legal requirements with respect thereto. In the event that Tenant, as
a result of any such action, shall recover any sums relating to the Premises in the name of
Landlord, such sums shall belong to Tenant. Tenant may also, in Landlord's name, appeal the
assessment of the Premises or the Improvements by appropriate proceedings and in compliance
with all applicable statutory and other legal requirements.
Section 3. Tax Contest. Tenant shall not be required to pay, discharge, or remove any such
Imposition so long as it shall proceed to contest the validity or amount thereof by appropriate
legal proceedings that shall operate to prevent the collection of the Imposition so contested, or
the sale of the Land or the Improvements, or any part thereof, to satisfy the same, or to prevent
the appointment of a receiver because of the nonpayment of any such Imposition; provided that
Tenant, before such Imposition shall become delinquent, shall give written notice to Landlord of
the intention of Tenant to contest the same, such notice to specify the amount to be contested,
and, at the time of giving such notice, shall provide Landlord with reasonably satisfactory
evidence that funds are or will be available to pay the unpaid portion of the Imposition. While
such legal proceedings are pending, Landlord shall not have the right to pay, remove or
discharge the Imposition so contested. If Tenant shall fail to continue to contest the unpaid
portion of such Imposition by appropriate legal proceedings that shall operate to prevent the
collection thereof or the sale or forfeiture of the Land or the Improvements, or any part thereof,
to satisfy the same, or to prevent the appointment of a receiver because of the nonpayment
thereof, Landlord may pay such Imposition, together with accrued penalties, interest and other
charges, provided that Landlord provides Tenant with fifteen (15) days written notice of its
intention to do so and Tenant fails to either provide reasonably satisfactory evidence that Tenant
is pursuing such contest with reasonable diligence or to pay same before the expiration of said
6
U:\City Attorney\HANS\20 I 0 Documcllts\4m Investors\GROUND LEASE WORKING DRAFT 11.16.1 O.doc
15-day period. Such payment with interest thereon at a rate which is the lesser of eighteen
percent (18%) per annum or the highest non-usurious rate permitted by applicable law shall be
Additional Rent due from Tenant to Landlord at the next rental payment day following such
payment.
Section 4. Refunds. Tenant shall be entitled to any refund of any such Imposition and
penalties or interest thereon which have been paid by Tenant or which have been paid by
Landlord and for which Landlord has been fully reimbursed by Tenant.
Section 5. Utilities. Tenant covenants to pay all public and private charges for water, sewer,
electricity, gas, telephone and other utility services used in or upon the Land and the
Improvements during the Term from and after the date the Final Approvals are obtained and
vacant, unencumbered possession of the Land has been delivered to Tenant.
ARTICLE V
Facilities/Development Approvals; Use
Section 1. Facilities. The Landlord acknowledges and agrees that Tenant intends on
constructing an Aquatic Entertainment Complex consisting of a state of the art aquatic
entertainment facility which shall offer educational elements such as a working marine
laboratory where numbers of the public can interact and learn about marine life, fish farming,
marine biology, aquaculture and marine plant life. The Aquatic Entertainment Complex shall
feature two (2) large ceiling tanks as more specifically described in Exhibit "C". For purposes of
this Lease, the Aquatic Entertainment Complex shall be referred to as the Tenant's
"Improvement". Landlord further acknowledges and agrees that Tenant on behalf of Landlord
intends on constructing a park and parking garage as described in Exhibit "C" on Landlord's
property. For purpose of this Lease, the park, parking garage, and limited retail space, shall be
referred to as "LandIord's Public Facilities."
Section 2. Design/Development Approvals. Tenant may not construct any Tenant's
Improvements or construct Landlord's Public Facilities until the plans and designs for such
improvements and Public Facilities have been submitted to, and approved by the City in
accordance with the development review process set forth in the Code of the City of Sunny Isles
Beach.
Certain provisions of this Lease will require the City and/or its boards, departments or agencies,
acting in their governmental capacity to consider certain changes in the City's Comprehensive
Plan or Zoning Ordinances as well as to consider taking other governmental actions. The term
"Development Approvals" as used in this Lease shall mean all City approvals, consents, permits,
amendments, rezonings, special use exemptions or variances as well as such other official
actions of the federal, state or local governments which, are necessary to develop the Proposed
Tenant's Improvements and Landlord's Public Facilities upon the Parcels as contemplated by
this Lease, including, without limitation, those development approvals required by the City Code
or applicable law.
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The obligations of the parties to obtain the Development Approvals hereunder shall be deemed
satisfied and fulfilled at such time as the Development Approvals are fully adopted by all
requisite governmental action and the same have become final, binding and no longer subject to
appeal, which shall hereinafter be referred to as having obtained the "Final Approvals."
Notwithstanding the foregoing, the term Development Approvals are not intended to include
building permits, certificates of use or occupancy, or such other City, or other similar
governmental permits or approvals that are purely ministerial (as opposed to discretionary) in
nature.
Section 3. Review by Other Governmental Agencies. It is contemplated that the Tenant
shall be responsible for obtaining any and all county and state land use approvals and permits as
well as obtaining all City land use approvals.
(a) Promptly following the execution date of this Agreement, Tenant will initiate and
diligently pursue any and all Federal, State County and City Approval applications which are the
Tenant's responsibilities.
(b) The Landlord shall consent to the filing of all applications for the foregoing as necessary
because of its ownership of the Premises affected thereby. In the event this Lease requires
modifications of any ordinances, resolutions, rules or regulations of the City, or other
governmental entity which must (as a matter of law) be initiated by the Landlord, then, and in
that event, any modifications to such ordinances, resolutions, rules and/or regulations will be
initiated by the Landlord. Except as provided in clause (a) above, Tenant agrees to pay all of the
application fees and advertising costs required for the processing of these applications. The City
will process all Development Approval applications in a timely fashion and it shall cooperate
with the Tenant (at no cost to the City except as provided in clause (a) above in processing all
necessary Development Approvals from federal, county and state agencies as needed.
Section 4. Development Review. During the development review process, the City, to the
extent permitted by law, shall cooperate and assist Tenant in the applications for and processing
of any and all other development approvals with respect to the development of the Land
(including, without limitation, any building permit requested by the Tenant) as may be required
to allow the construction of the improvements requested by the Tenant as long as and to the
extent that such improvements are consistent with the terms of this Agreement and as long as
such cooperation and assistance does not include the exercise of the City's police power or arise
out of the exercise of the City's powers when acting in a quasi-judicial capacity. The City will
process all such development approval applications in a timely fashion; however, nothing
contained herein shall obligate the City to expend any funds in support of any such applications.
The City agrees to waive all applications/permit fees charged by the City for development review
and the issuance of building permits for Tenant's Improvements, and Landlord's Public
Facilities.
Section 5. Police Powers. As provided above, the parties recognize and agree that certain
provisions of this Lease shall require the City and/or its boards, departments or agencies, acting
in their governmental capacity, to consider certain changes. in the City's Comprehensive Plan,
and/or Zoning Ordinance or other applicable City or Redevelopment Agency codes, plans or
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regulations, as well as to consider other governmental actions (such as, but not limited to, street
closures), as set forth in this Lease. All such considerations and actions shall be undertaken in
accordance with established requirements of state statute and City ordinances, in the exercise of
the City's jurisdiction under the police power. NOTHING IN THIS AGREEMENT IS
INTENDED TO LIMIT OR RESTRICT THE POWERS AND RESPONSIBILITIES OF THE
CITY IN ACTING ON APPLICATIONS FOR COMPREHENSIVE PLAN CHANGES, OR
APPLICATIONS FOR ANY OTHER DEVELOPMENT APPROVALS BY VIRTUE OF THE
FACT THAT THE CITY MA Y HAVE BEEN REQUIRED TO CONSENT TO SUCH
APPLICATIONS AS A PROPERTY OWNER OR OTHERWISE. THE PARTIES FURTHER
RECOGNIZE AND AGREE THAT THESE PROCEEDINGS SHALL BE CONDUCTED
OPENL Y, FULLY, FREELY AND F AIRL Y IN FULL ACCORDANCE WITH LAW AND
WITH BOTH PROCEDURAL AND SUBSTANTIVE DUE PROCESS TO BE ACCORDED
THE APPLICANT AND ANY MEMBER OF THE PUBLIC. NOTHING CONTAINED IN
THIS AGREEMENT SHALL ENTITLE THE TENANT TO COMPEL THE CITY TO TAKE
ANY SUCH ACTIONS, SAVE AND EXCEPT THE CONSENTS TO THE FILING OF SUCH
APPLICATIONS FOR LAND USE APPROVALS, REZONINGS, COMPREHENSIVE PLAN
AMENDMENTS OR OTHER REQUIRED APPROVALS, AS MORE FULLY SET FORTH
HEREIN, AND TO TIMELY PROCESS SUCH APPLICATIONS.
Section 6. Approval Period. The Tenant shall use its good faith and diligent efforts to obtain
the Final Approvals and otherwise timely obtain the Final Approvals. For the purpose of this
Lease, Final Approvals mean the approval of all site plans and permit applications filed with the
appropriate governmental agencies for the construction of Tenant's Improvements. The Tenant
shall have until January 1, 2012 (the "Approval Period") to obtain the Final Approvals. The
Tenant shall have the right to request the City to extend the Approval Period for (i) an additional
three (3) months to the extent the Final Approvals have not been obtained. In the event the Final
Approvals have not been obtained on or before the expiration of the Approval Period (as the
same may be extended as provided above), or in the event prior thereto, any of the required
Development Approvals have been denied by the City (or, with respect to any Development
Approval which is denied by a governmental entity other than the City, not refiled or appealed
within thirty (30) days after such denial, to the extent such refiling or appeal is permitted by law;
however, nothing set forth herein shall obligate the Tenant to file any appeal), then Tenant may,
at its sole option, (i) terminate this Lease as hereinafter provided, or (ii) waive the condition
precedent as hereinafter provided. Notice of termination shall be given in writing to the Landlord
no later than the expiration of the applicable Approval Period (as the same may be extended). If
Tenant terminates this Agreement prior to the expiration of the Approval Period, then this Lease
shall terminate as to all provisions except those specifically provided herein to survive
termination and all of the other provisions and obligations of the parties under this Lease shall
fully terminate and be null and void and Tenant shall immediately surrender possession of the
Land to Landlord. If the Final Approvals are obtained prior to the delivery of a written notice of
termination, then there shall be no further right of termination hereunder. In the event all of the
Development Approvals have been timely obtained, but some or all of them are being challenged
by third parties or appeal periods have not expired so that they have not become Final Approvals
at a time when the Approval Period (as the same may have been extended) is expiring, the
Landlord and Tenant agree to consider the desirability and advisability of further extending the
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Approval Period(s), provided that such consideration and the determination thereof shall be in
the sole and exclusive discretion of each of such respective parties, and must be separately
agreed by the Landlord and Tenant in order to be binding.
ARTICLE VI
Design and Construction of Improvements.
Section 1. Tenant's Construction Obligation. The Tenant hereby agrees to construct on the
Premises at its sole cost and expense the Tenant's Improvements in accordance with the Final
Plans and specifications based on the preliminary plans set forth in Exhibit "C".
Section 2. Schedule for Design/Construction. The Tenant shall commence construction of
the Aquatic Entertainment Center, which includes Landlord's Public Facilities, within six (6)
months of site plan approval by the City. Tenant shall deliver and construct Landlord's Public
Facilities before or concurrent with commencing construction on the Aquatic Center. The
Aquatic Center shall be constructed by Tenant immediately after the City accepts the Park and
Parking Garage. The Tenant agrees to perform the obligation under this lease in accordance with
a "Developer's Schedule" set forth in a Development Agreement between the City and Tenant.
In the event the Tenant is unable to commence construction in accordance with the
proceeding schedule, Landlord shall have the right to either (i) terminate the Lease by providing
written notice thereof to Tenant within five (5) business days following Tenant's failure to timely
commence construction, in which event the parties shall be released from all further obligations
under the Lease except only those specifically stated to survive the termination of this Lease, or
(i) Landlord may elect to continue this Lease in full force and effect, in which event and (ii) the
Basic Rent shall be required to be paid in year two (2) of the term, payable quarterly
installments, and (iii) landlord may require payment of additional Security Deposits by Tenant.
Section 3. Construction Standards. The Tenant shall construct the parking garage, the park
and the Aquatic Entertainment Center in a good and workmanlike manner, with new first-class
materials and equipment, and in conformity with all applicable Federal, Sate and local laws,
ordinances and regulations.
Section 4. Monthly Progress Reports. The Tenant shall submit to the Landlord a detailed
estimated progress schedule at the time construction is begun, in a format generally used in the
construction of buildings. This schedule shall be resubmitted each month until the construction
of the Improvement has been completed, with actual progress shown. This monthly submission
shall be accompanied by a written report by the Tenant citing any adjustments to the progress
forecast, analyzing the causes thereof, and, where applicable, noting corrective efforts.
Section 5. Certificate of Compliance. Promptly upon Substantial Completion of Tenant's
Improvements, the Tenant shall give to the Landlord written notice thereof. Not later than fifteen
business days after the receipt of such notice, the Landlord will either (i) issue to the Tenant a
Certificate of Compliance, in recordable form or (ii) provide the Tenant with a written statement
indicating in reasonable detail in what respect the Tenant has failed to complete the
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Improvements, and what measures will be necessary, in the opinion of the Landlord, for the
Tenant to take to obtain such Certificate.
Section 6. Inspection. Notwithstanding any other provision of this Lease, all construction
work of the Tenant hereunder shall be subject to inspection by representatives of the Landlord at
any time without notice to the Tenant. Such representatives shall abide by all reasonable and
usual rules of the workplace established by the general contractor, including, without limitation,
safety requirements. Tenant, upon request of Landlord, shall designate an on-site representative
who shall be available through final completion of Tenant's Improvements.
Section 7. Alterations of Completed Improvements. After a Certificate of Compliance shall
have been issued, the Tenant shall not make or permit to be made any substantial alteration of,
addition to or change in the exterior facade (which shall include, without limitation, entrance
locations, materials, windows, and cornices forming a part of such fa<;:ade) or the landscaping,
other exterior features, or publicly accessible major interior features of the Improvements to
which such Certificate relates or otherwise materially alter the Premises in a manner contrary to
the use and design features set forth in the Approved Site Development Plan (Major Alterations)
without the prior consent of the Landlord. Any request for such consent shall be accompanied by
graphic, financial, and other materials sufficient to illustrate the nature and extent of the
proposed alteration, its impact, if any, upon improvements existing upon or planned for under the
Approved Site Development Plan, and shall be submitted to the Landlord in accordance with the
Review Process established in Article V hereof. Upon any reasonable disapproval thereof by the
Landlord, the Tenant shall have no right, within two (2) months after such disapproval, to
resubmit for approval any request for substantially the same alterations or changes unless so
permitted by the Landlord. The Tenant may alter and make leasehold improvements for
occupants in areas of the Improvements not accessible by the public. All alterations and
additions made in accordance with this Section shall be constructed in a good and workmanlike
manner, with new first-class materials and equipment and in conformity with all applicable
Federal, State and local laws, ordinances and regulations and shall be completed with all due
diligence. If the Tenant shall fail to comply with the foregoing requirements, the Landlord may,
within a reasonable time after its discovery thereof, direct in writing that the Tenant so modify,
reconstruct or remove such portion or portions of the Improvements as were reconstructed,
demolished, or subtracted from or added to or extended without the prior approval of the
Landlord. The Tenant shall promptly comply with such directive, and shall not proceed further
with such reconstruction, demolition, subtraction, addition or extension until such directive is
complied with.
Section 8. Modification of Approved Site Plan. The Tenant shall cause Improvements or
Major Alterations to be constructed upon the Premises only in accordance with the Approved
Site Development Plan and with a Schematic Design Submittal, an approved Design
Development Submittal, and Final Plans and Specifications, as approved by the City, each with
accompanying financial analysis showing sources and uses and financial commitments, that have
been approved by the Landlord pursuant to the requirements of the following Review Process:
(i) All subsequent submissions shall be consistent with the City Approved Site
Development Plan.
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(ii) Within reasonable time but not later than thirty (30) days after submission by the
Tenant of any materials which require approval in accordance with the Review Process, the
Landlord, in writing, shall either approve such materials to be unacceptable. If the Landlord does
not notify the Tenant in writing within said thirty (30) day period of all specific respects in which
the same is unacceptable, such materials shall be treated as having been approved by the
Landlord, as will all elements within such submission which are not so specified as unacceptable.
In regard to any specific matters which the Landlord disapproves, the Tenant shall, within thirty
(30) days (or such additional time as may be requested by the Tenant and reasonably approved
by the Landlord) after the Tenant receives written notice of such disapproval, resubmit
appropriate material, altered in an effort to remove the basis for such disapproval. All
resubmissions and subsequent approvals or disapprovals thereof shall be made and given in
accordance with the procedure hereinabove provided for the original submission, until the
relevant materials shall be approved or shall be treated as having been approved by the Landlord
as set forth above, or until this Agreement has been terminated pursuant to the provisions hereof.
(iii) After the Final Plans and Specifications have been approved by the Landlord, the
Tenant shall not make or permit to be made any Major Alterations without the prior consent of
the Landlord. Tenant may make changes which do not constitute Major Alterations provided that
notices of any such changes are promptly given to the Landlord. In connection with the
foregoing, the parties contemplate and agree that submission and review of design and financial
materials will be a continuing process with the parties working cooperatively, expeditiously,
reasonably, and in good faith with respect to the design and implementation of the Project,
continually coordinating the same to the extent required or deemed advisable with the City of
Sunny Isles Beach.
(iv) Either party may notify the other that it deems any action or submission or
disapproval unreasonable or in bad faith, and describing the consequences of such action and
requesting accelerated review of the submission to ameliorate such consequences. Failure to give
written notice within thirty (30) days of any such action shall be deemed acquiescence in the
reasonableness thereof. Failure to make written protest of any notice within ten (10) days hereof
shall constitute acquiescence to the requested relief.
Section 9. Records. The Tenant shall keep complete, accurate, up-to-date and permanent
records of all changes made to the Improvements during the Term of this Lease, including
changes made to the Final Plans and Specifications during construction of the Improvements and
in connection with any alterations and additions constructed pursuant to Section 7 and shall
provide copies of such records to the Landlord.
Section 10. Design Documents. At all stages of the design process set forth in Section 8
hereof, the Landlord shall have access to all design documents and technical backup information
supporting such documents. The Tenant shall disclose to the Landlord the existence of all design
contracts and other technical contracts, and all architectural, engineering or other contracts
entered into by the Tenant relating to the design of Major Alterations (including without
limitations all plans, specifications, renderings, engineering data, soul reports and other technical
documents) are hereby collaterally assigned, to the extent assignable, to the Landlord, subject
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only the rights of any Approved First Mortgagee therein. All documents produced thereunder, to
the extent assignable, shall become the property of the Landlord if this Lease is terminated as a
result of default by the Tenant (subject to the rights of any Approved First Mortgagee if such
Approved First Mortgagee exercises a right to receive a new Lease pursuant to Article XVII;
provided, however, that the Landlord shall pay any outstanding amounts due to said contractors
or consultants as of the date of such termination for any work completed or in progress as of such
date if the Landlord wishes to assert its rights to such design documents or other work products.
Section 11. Park/Parking Garage. The Tenant and a responsible architectural, planning,
design, engineering and consulting firm or firms (the "Architect") which firm or firms shall be
approved by the Landlord, such approval not to be unreasonably withheld, shall enter into a
contract or contracts, satisfactory in form to the Landlord, for the design of the Parking Garage
and park and, where appropriate, for supervision of construction. The Tenant may, at any time
thereafter, change such firm or firms or enter into contracts with new firms with the written
approval of the Landlord.
(a) The parties will enter into an agreement concerning the use of the Parking Garage before
approval of the site plan by the City. The agreement will contain the following terms among
others:
(1) The Parking Garage will be under the day to day control of the City;
(2) The City will be entitled to all revenues from the use of the Parking Garage;
(3) The City will be responsible for maintaining the Parking Garage and will maintain
the garage in good condition and repair;
(4) The City and Tenant will jointly develop a shared parking arrangement;
(5) There shall be public access to the Parking Garage at all hours the Parking Garage is
open (including hours in which the Aquatic Center is closed);
(6) The City will use its best efforts to create nearby offsite parking for overflow
purposes; and
(7) The City will work with Tenant to find offsite parking for employees of the Aquatic
Center.
Section 12. Construction Contract. The Tenant and a financially responsible general
contracting firm or firms (the Contractor), which firm or firms shall be approved by the
Landlord, such approval not be unreasonably withheld, shall enter into a contract or contracts,
satisfactory in form to the Landlord, for the construction of the Tenant's Improvements or any
Major Alterations, in accordance with Approved Site Development Plan and the Final Plans and
Specifications referred to in Section 8, and the Tenant may, at any time thereafter, change such
firm or firms or enter into contracts with new firms with the approval of the Landlord, such
approval not to be unreasonably withheld.
Section 13. Final Construction Documents. Prior to commencing construction of the
Improvements or Major Alterations, the Tenant shall furnish the Landlord with:
(i) Final Plans and Specifications approved by the Landlord and by any First Mortgagee
or other lenders requiring approval;
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(ii) The design services contract(s) and construction contract(s) referred to in Sections 11
and 12 above, based upon the Final Plans and Specifications approved by the Landlord, with any
change orders as of the start of construction;
(iii) Evidence that the Contractor will perform satisfactorily, including, a completions
guaranty by the parent corporation of Tenant or a lien bond and a performance and payment
surety bond whichever shall be required by an Approved First Mortgagee other than Affiliate. If
an Approved First Mortgagee requires a completion guaranty, such guaranty shall be in a form
satisfactory to such Approved First Mortgagee and the Landlord shall be entitled to a completion
guaranty in substantially the same form. If an Approved First Mortgagee requires a lien bond and
a performance and surety bond, then such bonds shall be in a form satisfactory to such Approved
First Mortgagee and shall be issues with the Contractor as principal and the Tenant, the
Approved First Mortgagee and the Landlord as beneficiaries, as their respective interests may
appear. The amount of said bonds shall not be less than the full amount of the construction
contracts with the Contractor. If the holder(s) of any mortgagees) require(s) additional bonds in a
greater amount than is required pursuant to this subsection, the Landlord shall appear as an
oblige on said bonds, as its interest may appear. If the Landlord is the Approved First Mortgagee
or if the Approved First Mortgagee is an Affiliate then the Landlord shall determine whether or
not it will require a completion guaranty or bonds:
(iv) Evidence reasonably satisfactory to the Landlord that the Tenant has the equity
capital and final commitments for mortgage or other financing adequate for the construction of
the approved Improvements or Major Alterations; and
(v) All licenses, permits, approvals, certificates and all other necessary or appropriate
actions of any Federal, State, or City authorities required to enable leasing, construction,
maintenance, operation and use of the Improvements or Major Alterations in accordance with the
Final Plans and Specifications approved by the Landlord and reasonably obtainable given the
status of the Project; provided that the Landlord shall within 30 days of its receipt thereof, review
and approve or give its reasons for its disapproval of any document prepared and submitted by
the Tenant describing all such licenses, permits, approvals, certificates, environmental reviews
and other actions which the Tenant intends to deliver and the delivery of documentation
evidencing compliance with each item on such a submittal shall conclusively be deemed to
satisfy this provision; and
(vi) Building permits for the Aquatic Entertainment Center or Major Alterations for
which construction is proposed to commence based upon the Final Plans and Specifications
approved by the Landlord which permits shall conclusively be deemed to be satisfactory
evidence that such portion complies with applicable zoning and building code requirements.
Section 14. Arbitration of Design Disputes. If either party believes the other party is being
unreasonable in its position with respect to any substantial issue of design during the design and
development review process established in this Article VI, and a reasonable attempt has been
made to resolve said issue between the parties, said party may submit the issue for final
determination by a panel of arbitrators by giving notice thereof of the other party. Within ten
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(10) days after such notice has been given, each party shall designate a third arbitrator. All
arbitrators on said panel shall be technically competent in fields relevant to the dispute, and the
panel shall conduct its deliberations in accordance with procedures and standards established by
the American Arbitration Association. The Landlord and the Tenant shall divide equally all
expenses of arbitration.
Section 15. Tenant's Overall Responsibilities. With respect to construction of the
Improvements or Major Alterations, the Tenant shall be responsible for the following activities
(as the same may be reasonably required):
(i) Obtaining adequate financing;
(ii) Except as otherwise determined by the Landlord in accordance with its authority
under applicable laws and this Lease, obtaining required governmental approvals, permits,
certificates, rulings and other actions necessary for the Improvements;
(iii) Ascertaining that the Landlord's continued fee simple title to the Land is satisfactory
to the Tenant and any mortgagee;
(iv) Obtaining necessary contracts with the Architect and Contractor and all other
necessary agreements for the construction and operation of the Improvements;
(v) Marketing and leasing the Aquatic Entertainment Center to prospective users of the
facilities..
The purpose of this Section is to facilitate the implementation of cooperative efforts
between the Landlord and the Tenant and, except for the cooperation obligation set forth in this
Lease, nothing in this Lease shall be deemed to impose upon the Tenant any separate obligations
beyond those created by the other provisions of this Lease.
Section 16. Cooperation. Each party hereby pledges to provide the other party with such
information and other support and cooperation as may be reasonably required by the other party
(i) to carry out the responsibilities set forth in this Lease hereof, (ii) to keep the other party fully
informed of its activities pursuant to Article VI, and (iii) to take such other steps as may
reasonably be required for the accomplishment of the Improvements.
Section 17. Tenant's Financial Commitment. Tenant agrees to expend at least Fifty Million
and Noll 00 Dollars ($50,000,000.00) for the Aquatic Entertainment Complex, as described in
Exhibit "C".
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ARTICLE VII
Acceptable Vendor
Section 1. Acceptable Vendor. Tenant acknowledges that it has limited experience in the
operations of an Aquatic Center. Tenant agrees to retain an acceptable vendor to manage and
operate the Aquatic Center and associated amenities. At a minimum, the Acceptable Vendor
must possess the following qualifications:
(a) The Acceptable Vendor must possess the experience, qualifications, good reputation,
financial resources, and adequate personnel necessary for the proper management of
the Aquatic Center as required under the Lease and Development Agreement.
(b) The Acceptable Vendor must establish and maintain an on site management and/or
administrative office within the Aquatic Center.
(c) The Acceptable Vendor shall have no outstanding material violations of any federal,
state or local law, regulation, code or ordinance against the Acceptable Vendor.
(d) The Acceptable Vendor must not be owned, controlled or run by entities or
individuals who have been convicted or are presently under indictment, for felonies
under the laws of any foreign or domestic U.S. jurisdiction.
Section 2. Approval of Acceptable Vendor. The Landlord and Tenant agree than an entity
shall not be automatically deemed to be an Acceptable Vendor if it satisfies the criteria in
Section 1 above. The consent of the Landlord is required before the Tenant enters into any
agreement with an entity deemed an Acceptable Vendor. Consent by the Landlord shall not be
unreasonably withheld if the Acceptable Vendor meets the criteria in Section 1.
ARTICLE VIII
Insurance and Indemnity
Section 1. Insurance. Tenant shall, at its sole cost and expense, provide and keep in full
force and effect at all times during the Term, commencing upon the date unencumbered
possession of the Land is delivered to Tenant, the following insurance coverages:
(a) Insurance against fire and other hazards (including flood insurance, subject to the
statutory coverage limits) on an "all risks" basis in an amount not less than the then full
replacement cost (excluding the cost of excavation, foundations and footings) of the
Improvements.
(b) General public liability insurance in an amount not less than $10,000,000 on a single
limit basis, such insurance to cover buildings and improvements including elevators and
escalators and all public areas therein, streets, alleys and sidewalks adjacent thereto.
(c) Worker's compensation insurance covering all persons employed in connection with any
work done on or about the Land and the Improvements (if any) in such amounts and to the extent
required by law.
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(d) Builder's risk insurance during any period of construction of any improvements, insuring the
improvements against all casualties on a progressively insured basis for not less than one
hundred percent (100%) of the replacement cost of the improvements on a completed value
form.
Section 2. Additional Insured. All insurance policies required to be provided and kept in full
force and effect under the terms of this Article VIII shall be issued by insurance companies
reasonably acceptable to Landlord and shall name Landlord as additional insured. All policies of
insurance shall, to the extent obtainable, provide that, in the event any act or negligence of
Tenant which might otherwise result in a forfeiture of said insurance, the insurer shall not
thereby have a defense to Landlord's claim. All policies of insurance required hereunder shall be
endorsed to provide that they shall not be cancelled, the coverage reduced and the terms shall not
be materially changed without thirty (30) days' prior written notice to Landlord. Tenant shall
deliver to Landlord certificates of insurance for each insurance coverage required hereunder as
and when same is issued and/or renewed so that Landlord shall always have in its possession
evidence that all required insurance coverage is in force.
Section 3. Indemnity. Tenant agrees to pay, and to protect, defend, indemnify and save
harmless Landlord from and against, any and all liabilities, damages, costs, expenses (including,
but not limited to, any and all attorneys' fees and expenses of Landlord, including any on appeal),
causes of action, suits, claims, demands or judgments of any nature whatsoever arising from (i)
any work or thing done following the date the Final Approvals are obtained and vacant,
unencumbered possession of the Land has been delivered to Tenant, in, on or about the Land or
the Improvements or any part thereof by any party other than Landlord, (ii) injury to or death of
persons, or damage to property, following the date the Final Approvals are obtained, on the Land
or the Improvements growing out of or connected with the use, condition, operation,
maintenance, management or occupation of the Land or the Improvements, excepting however,
any such injury, death or damage as may be the result of Landlord's negligence or willful
misconduct, (iii) any negligence on the part of Tenant or any of its agents, contractors, servants,
employees or invitees, and (iv) any failure on the part of Tenant to perform or comply with the
covenants, agreements, terms, provisions, conditions or limitations contained in this Lease on its
part to be performed or complied with.
In case any action or proceeding is brought against Landlord by reason, of any such claim,
Tenant shall, upon written notice from Landlord and at Tenant's expense, resist or defend such
action or proceeding with counsel reasonably acceptable to Landlord. Landlord may employ
separate counsel to defend such action or proceeding at Landlord's sole cost and expense.
Notwithstanding the foregoing, in the event a conflict of interest shall arise as a result of or in
relation to insurer's retention of counselor other obligation(s) to Landlord under this Section 3,
then Landlord shall have the right to retain separate counsel at the sole cost and expense of said
insurer and/or Tenant. If Tenant has supplied Landlord with evidence of insurance covering any
of the aforementioned risks, no claim shall be made against Tenant unless and until the insurer
shall fail or refuse to defend and/or pay all or any part thereof.
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ARTICLE IX
Repairs and Maintenance
Section 1. Maintenance and Repair; Operation. The Tenant agrees that will, during the Term
of this Lease, at its expense, keep, and maintain, the Premises, including any altered, rebuilt,
additional or substituted buildings, structures and other improvements thereto, in good repair
and appearance and in a first-class and tenantable condition, and will promptly make all
structural and non-structural, foreseen and unforeseen, and ordinary and extraordinary changes
and repairs of every kind and nature which may be required to be made upon or in connection
with the Aquatic Entertainment Center or any part thereof in order to keep and maintain the
Premises, the Aquatic Entertainment Center in good repair and appearance and in a tenantable
condition. The Tenant shall keep, maintain, use and operate the Aquatic Entertainment Center in
a manner that will enhance the neighborhood and reflect well upon the Landlord. The Tenant
shall, at its own expense, keep the Aquatic Entertainment Center and retail facilities in a clean,
neat and sanitary condition. The Landlord shall not be required to maintain, repair or rebuild, or
to make any alterations, replacements or renewals of any nature or description to the Aquatic
Entertainment Center or any part thereof, whether ordinary or extraordinary, structural or non-
structural, foreseen or unforeseen. The Tenant hereby expressly waives any right to make repairs
at the expense of the Landlord.
ARTICLE X
Compliance with Law; Environmental Matters
Section 1. Compliance. Tenant shall at its sole cost and expense comply with all laws,
statutes, ordinances, regulations, building codes and regulations and the orders, judgments, rules,
regulations and requirements of all federal, state, local and municipal governments, and the
agencies, officers, departments, boards, commissions and courts thereof, whether now or
hereafter in effect, which are or later become applicable to the Land or any part thereof or to the
use or manner of use of all or any part of the Land (collectively, the "Legal Requirements"),
provided that nothing contained herein or in any other provision of this Lease shall prevent
Tenant from contesting such Legal Requirements to the full extent permitted by law. Tenant
shall comply with the requirements of all policies of public liability, fire and other insurance at
any time in force with respect to the Land or the Improvements.
Section 2. Responsibility. During the term of this lease, Tenant shall not dispose or
knowingly permit the storage (except for the storage of cleaning, maintenance and other similar
supplies and materials in accordance with all Legal Requirements), disposal, escape or discharge
of any Hazardous Materials on, in or about the Land. In the event that Tenant, its agents,
employees or contractors, cause any Hazardous Materials to contaminate any portion of the
Land, Tenant shall comply with any and all Legal Requirements relative to such Hazardous
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Materials, and that, in connection with the foregoing, if any clean-up or removal of such
Hazardous Materials or any other remedial action is required, Tenant shall cause the same to be
performed without expense to Landlord. Tenant shall indemnify and hold Landlord harmless
from any and all Claims arising out of in any way connected with the presence of any Hazardous
Materials on the Land or any other portions of the Land caused by the acts or omission of
Tenant, its agents, employees, contractors, licensees or concessionaires or any tenant of the
Improvements. The indemnity obligations set forth herein shall survive the expiration or earlier
termination of this Lease.
Section 3. Hazardous Materials. For the purposes of this Section, Hazardous Materials shall
include but not be limited to, substances defined, as "hazardous substances", "hazardous
materials" or "toxic substances" in the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended, 42 U.S.C. Section 9601, et. seq.; the Hazardous Materials
Transportation Act, as amended, 49 U.S.C. Section 1801 et. seq.; the Resource Conservation and
Recovery Act, as amended 42 U.S.C. Section 6901 et. seq. and any applicable state laws; and the
regulations adopted and publications promulgated pursuant to said laws.
ARTICLE XI
Liens
Section I. Liens. Tenant shall not permit any mechanic's lien to be filed against the Land or
any part thereof by reason of work, labor, services, or materials performed or 'supplied or
claimed to have been performed or supplied to Tenant or anyone holding the Land or the
Improvements or any part thereof through or under Tenant. The Memorandum of Lease (as
hereinafter defined) shall contain the appropriate clause under Chapter 713 of the Florida
Statutes notifying third parties that they may not impose a lien on the Landlord's interest in the
Land for labor, services or materials furnished to, or at the request of, Tenant and any such liens
are hereby prohibited. If, notwithstanding said notice, any third party files a mechanic's lien
purportedly against the Landlord's estate for or on account of labor, services or materials
provided to or at the request of Tenant, Tenant shall dispose of the claim and ensuing litigation
as Tenant deems appropriate at Tenant's expense, provided that if such party commences a
foreclosure action with respect to such lien, Tenant shall transfer the lien to security as provided
by Florida law or otherwise bond or cause the same to be discharged of record within thirty (30)
days thereafter to prevent the foreclosure of Landlord's estate. Tenant shall keep Landlord
apprised of the status of the resolution of any such claim of lien and litigation.
ARTICLE XII
Al terati ons/Reconstructi on
Section 1. Alterations. In the event the Aquatic Entertainment Complex is damaged by fire
or other casualty and the Tenant is obligated to, or elects to, reconstruct the same under the
provisions of Article XII below, before commencing any such demolition and/or construction,
Tenant shall submit to Landlord a copy of the plans and specifications for such new
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improvements, together with an estimate which shall show in reasonable detail the approximate
cost of sum improvements. Such plans and specifications shall comply with all relevant Legal
Requirements and shall be subject to Landlord's approval and all applicable governmental code,
rules and policies.
Section 2. Standards for Reconstruction. All work done by Tenant hereunder shall be
constructed and completed in a good and workmanlike manner and in compliance with the
building and zoning laws and all other Legal Requirements, and in accordance with the orders,
rules and regulations of any appropriate insurance rating bureau or any other body now or
hereafter constituted exercising similar functions. Upon completion of the Tenant's
improvements, all references in this Lease to "Improvements" shall be deemed modified to mean
and refer to the new improvements so constructed by Tenant.
Section 3. Conforming with Final Plans. Any restoration undertaken pursuant to the
provisions of this Article shall in all respects substantially conform to the provisions of the Final
Plans and Specifications for the damaged Improvements, incorporating any alterations or
modifications approved by the Landlord prior to the casualty, or shall be built in accordance with
such new or modified plans and specifications as the Tenant, the Landlord and, at its election, the
Approved First Mortgagee may at the time agree upon and approve, subject to any applicable
building and zoning laws or other similar requirements then in existence.
Section 4. Commencement and Completion of Restoration. When reconstruction or repair of
the Improvements, or any portion thereof, which have been destroyed or damaged, is required by
the provisions of this Article, such reconstruction or repair shall be commenced within a period
not to exceed ninety (90) days after the Insurance Proceeds have been received by the Tenant (or,
if the conditions then prevailing require a longer period, such longer period as shall reasonably
be required by Tenant proceeding with due diligence), and the Tenant shall diligently prosecute
such reconstruction or repair to completion, such reconstruction or repair to be completed within
two (2) years after the commencement thereof.
Section 5. Determination of Whether or Not to Restore. In the event of substantial damage
or destruction by a casualty insured against (i) which damage, by joint agreement of the Landlord
and the Tenant or, if the Tenant and the Landlord disagree, by determination of an arbitrator in
the manner provided in this Lease, is such that reconstruction of economically viable
improvements is not practicable, or (ii) which damage occurs during the last five (5) years of the
Term, then the Tenant, subject to the rights of any Approved First Mortgagee, shall have the
right to terminate this Lease upon thirty (30) days notice to the Landlord in which event the
Insurance Proceeds (or sum equivalent to such amount) shall be payable as set forth in Section
Section 6. Allocation of Proceeds. If such casualty occurs and the Tenant elects to terminate
the Lease in accordance with Section , the Insurance Proceeds shall be allocated between and
paid to the Landlord and the Tenant in order that following the disbursement of the Insurance
Proceeds, each has an amount of the Insurance Proceeds bearing the same proportion to the
aggregate value of the Improvements immediately prior to the casualty giving rise to termination
of this Lease. The Landlord and the Tenant shall attempt to allocate the Insurance Proceeds
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between the Landlord and the Tenant fairly to effect such allocation. If the parties are unable to
agree on such allocation, the allocation shall be made pursuant to arbitration in the manner
provided by Section _' In determining the value of the Tenant's interest in the
Improvements, the parties or the arbitrators, as the case may be, shall take into account the
present value of the Tenant's leasehold estate for the remainder of the Term unencumbered by
any mortgages, subject to all of the terms and conditions of this Lease. In determining the value
of the Landlord's interest in the Improvements, the parties or the arbitrators, as the case may be,
shall take into account the present value of (i) the right to receive Rent, Additional Rent, and
other charges and payments required to be paid under this Lease for the balance of the Term, and
(ii) the projected residual value of the Improvements as of the originally scheduled expiration of
the Term.
Notwithstanding the foregoing, an Approved First Mortgagee shall have claim to the Insurance
Proceeds prior to that of the Tenant and the Landlord to pay outstanding amounts secured by a
First Mortgage to the extent required under such First Mortgage.
Section 7. Tenant's Responsibilities on Termination. If the Tenant terminates this Lease
following a casualty in accordance with Section _, the Tenant, at its sole expense, shall
deliver to the Landlord any plans or other technical material related to the design and
construction of the Improvements and, at the request of the Landlord, shall remove any
remaining Improvements and restore the Premises to a cleared and safe condition and at a grade
approximately level with abutting land. Upon the completion of any such demolition or other site
preparation work to the reasonable satisfaction of the Landlord and the payment of such
Insurance Proceeds to the Landlord, the Tenant shall surrender the Premises to the Landlord in
accordance with Section _ of this Lease and this Lease shall be terminated without liability or
further recourse to the parties hereto, provided that any Rent, Additional rent, and other amounts
payable or obligations owed by the Tenant to the Landlord as of the date of said termination shall
be paid or otherwise carried out in full.
ARTICLE XIII
Casualty
Section 1. Collection of Claims. If the Aquatic Entertainment Center or any portion thereof
shall be damaged or destroyed by fire or other casualty prior to expiration of the Term, the
Tenant shall proceed promptly to establish and collect all valid claims which may have arisen
against insurers or others based upon any such damage or destruction.
Section 2. Special Account. If the total amount of all proceeds of any such claims
(hereinafter called Insurance Proceeds) and any other monies provided for the reconstruction,
restoration or repair of the Improvements shall exceed Two (2) Million Dollars, the same shall be
paid into an escrow account, with a single escrow agent which shall be appointed by the
Approved First Mortgagee. Approved First Mortgagee shall have the right to appoint itself such
escrow agent. If there shall be no such Approved First Mortgagee, such escrow agent shall be
appointed jointly by the Landlord and the Tenant, both parties agreeing to use reasonable efforts
to agree on such appointment. Payments form such escrow account shall conform to the
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requirements of this Article and, in the event of restoration, shall be made on a progress payment
basis against vouchers certified by a registered architect selected by the Tenant and supervising
the work of restoration and shall be subject to reasonable retainage and (provided the same do
not contravene the provisions of this Lease) made in accordance with usual and reasonable
disbursement requirements of the Approved First Mortgagee.
Section 3. Restoration. Unless otherwise determined in accordance with this Lease, Tenant
shall fully repair and reconstruct the Improvement to it's condition at the time of such damage or
destruction and the Insurance Proceeds and any other funds so collected shall be used and
expended by the Tenant for such purpose. Any deficiency shall be paid to the Tenant. Tenant's
obligation hereunder shall not be affected by the unavailability or insufficiency of Insurance
Proceeds. Any excess proceeds after such repair or reconstruction has been fully completed shall
be retained by the Tenant, subject to the rights of the Landlord to require that such excess be
applied to the extent necessary to pay any outstanding Rent, Additional Rent, and other amounts
owed by the Tenant to the Landlord pursuant to this Lease.
ARTICLE XIV
Condemnation
Section 1. Condemnation of Property. If during the Term either the entire Land shall be
taken as a result of the exercise of the power of eminent domain, or a portion of the Land shall be
so taken such that the remaining portion cannot be practicably repaired, rebuilt or restored to an
economically useful unit as it was immediately prior to the taking, this Lease shall terminate and
all right, title and interest of Tenant hereunder shall cease and come to an end on the date of
vesting of title pursuant to such eminent domain proceeding, and all rental and other sums
payable by Tenant hereunder shall be prorated to the date of such vesting. In such event, the
condemnation award shall be divided so that Tenant receives a portion of the award equal to the
value of the Leasehold Estate (as hereinafter defined) as of the time of the taking, and Landlord
receives the balance, if any, of the award. "Leasehold Estate" shall mean all of the estate, rights
and interest of Tenant in and to the Land and any other rights of Tenant, in each case arising
under or growing out of this Lease.
Section 2. Partial Take. If during the Term there is a taking by exercise of the power of
eminent domain of less than the entire Land and the remaining portion can be practicably
repaired, rebuilt and restored to an economically useful unit as it was immediately prior to the
taking, the Lease shall remain in full force and effect but the Basic Rent shall be equitably
adjusted as of the date of vesting title pursuant to the proceeding to reflect the proportionate
value of the Land so taken to the whole Land. In such event, the condemnation award shall be
divided so that Landlord receives a portion of the award equal to the value of the Land so taken
as of the time of, the taking, and Tenant receives the balance of the award, whereupon, at its sole
cost and expense, Tenant shall proceed diligently to rebuild, replace and repair the Improvements
as near as legally and structurally practicable to their former condition or construct new
improvements on the Land. All such rebuilding, replacing and repairing shall be carried out as an
alteration in accordance with the provisions of Article VII.
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Section 3. Full Take. If all or any portion of the Land shall be taken by the exercise of the
right of eminent domain for governmental occupancy for a limited period, this Lease shall not
terminate, and Tenant shall continue to perform and observe all of its obligations hereunder as
though such taking had not occurred except only as to the extent that it may be prevented from so
doing by reason of such taking. Tenant, however, shall not be excused from the payment of
Basic Rent and all other sums and charges required to be paid by Tenant under this Lease,
provided that such payments shall be deferred until (i) the date Tenant receives the proceeds
from such temporary taking, or (ii) one hundred eighty (180) days after the occurrence of the
taking, whichever shall first occur, at which time all such deferred rent shall be due and payable.
In the event of such a temporary taking, Tenant shall be entitled to receive the entire amount of
any award made for such taking (whether paid by way of damages, rent or otherwise) and
Landlord hereby assigns such award to Tenant unless the period of governmental occupancy
extends beyond the termination of the Term of this Lease, in which case the award shall be
apportioned between Landlord and Tenant as of the date of such termination and, in such
apportionment, Landlord shall receive the full amount, if any, of any portion of said award which
represents the cost of restoration at the termination of any such governmental occupancy. Tenant
covenants that at the termination of any such governmental occupancy, it will, at its sole cost and
expense, restore the building as nearly as may be reasonably possible to the condition in which
the same was prior to such taking, but Tenant shall not be required to do such restoration work if
on or prior to the date of such termination of governmental occupancy, the Term of this Lease
shall have terminated, in which event Tenant shall not be entitled to any part of the award
representing the cost of such restoration.
ARTICLE XV
Quiet Enjoyment
Subject to the matters set forth in Article I, Landlord represents to Tenant that, so long as Tenant
performs its obligations under this Lease and is not in default hereunder after the expiration of all
applicable notice and cure periods, Tenant shall peaceably have and enjoy the Land.
ARTICLE XVI
Effect of Termination; Surrender of Possession
Section 1. Failure to Commence Construction. The Parties do hereby and agree that in the
event the Tenant fails to commence construction (defined to be substantially more improvement
to the site than site preparation) within sixty (60) days of issuance of a building permit and the
execution of this Ground Lease by both Landlord and Tenant, the Landlord shall have the right,
but not the obligation to terminate this Ground Lease by providing written notice of it's intent to
Tenant no less than ten (10) days prior to the effective date of the termination.
Section 2. Ownership of Improvements. Tenant hereby covenants and agrees that at the
expiration of the Term (by its own terms or any earlier termination upon a default or otherwise
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pursuant to the terms hereof) the sole ownership of the Improvements and the right to their
possession and use shall automatically pass to and be in Landlord without payment or
consideration of any kind. Although these provisions are intended to be self-executing, Tenant
hereby agrees, upon expiration of such period, to execute any further deed or document
requested by Landlord to confirm Landlord's sole ownership of and fee simple title to the
Improvements and Tenant's grant and conveyance thereof to Landlord hereby made. All costs of
such transfer shall be paid by the Landlord.
Section 3. Leasehold Estate. Tenant's ownership of the Leasehold Estate created hereby and
of the estate or interest in the Improvements shall be nonseparable. Subject to the provisions of
Articles XVIII , any attempt to transfer or encumber Tenant's estate or interest in the
Improvements shall be a default under this Lease, and void and ineffective, unless Tenant's
leasehold interest created by this Lease shall be simultaneously transferred to the same transferee
or simultaneously identically encumbered to the same encumbrancer and (in the case of an
encumbrance of the Improvements) unless such encumbrance of the Improvements shall, by its
terms, be valid only until the termination or expiration of the Term of this Lease. Likewise, any
attempt to transfer or encumber Tenant's Leasehold Estate created by this Lease shall be a default
by Tenant under this Lease, and void and ineffective, unless Tenant's estate or interest in the
Improvements shall be simultaneously transferred to the same transferee or simultaneously
identically encumbered to the same encumbrancer. Under no circumstances shall any "easement
by necessity" or other similar right be created or spring into effect in favor of any person should
Tenant attempt to transfer ownership of the Improvements or the Leasehold Estate created
hereby in violation of this Section.
Section 4. Surrender of Premises. Tenant shall and will on the last day of the Term hereof or
upon any earlier expiration or termination of this Lease, surrender and deliver up the Land and
all Improvements into the possession and use of Landlord without fraud or delay and, subject to
the provisions of Articles XVIII of this Lease, in the condition and repair required of Tenant
hereunder.
Section 5. Responsibility at Termination of Lease Upon the termination of this Lease,
Tenant shall have the right to remove all furniture, furnishings, trade fixtures, equipment,
supplies, inventories and other personality whatsoever brought upon and/or installed on the Land
by Tenant.
Section 6. Abandonment of Personal Property. Any personal property of Tenant or any
sublessee or space lessee which shall remain on the Premises and Improvements, or any part
thereof, sixty (60) days after the termination or expiration of this Lease and the removal of
Tenant or such sublessee or space lessee from the Land and Improvements may, at the option of
Landlord, be deemed to have been abandoned by Tenant or such sublessee or space lessee and
either may be retained by Landlord as its property or be disposed of without accountability, in
such manner as Landlord may see fit.
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Section 7. Responsibility. Landlord shall not be responsible for any loss or damage
occurring to any property owned by Tenant, any sublessee, any space lessee or any occupant.
Section 8. The provisions of this Article XVI shall survive any termination or expiration of
this Lease, including a termination pursuant to the provisions of Articles XVII of this Lease.
ARTICLE XVII
Defaults and Remedies
Section 1.
Default by Tenant. The following shall be deemed a default by Tenant:
(a) Tenant shall make default in the payment of the Basic Rent or Additional Rent expressly
reserved hereunder, or any part of the same, and such default shall continue for fifteen (15) days
after written notice, or shall make default in the payment of any other charge required to be paid
by Tenant hereunder or any part of the same, and such default shall continue for fifteen (15) days
after written notice. Notwithstanding the foregoing, any payments due hereunder received more
than fifteen (15) days after the due date shall accrue interest at the lesser of eighteen percent
(18%) per annum or the highest non-usurious rate permitted under applicable law accruing from
the date such payment was due; or
(b) Tenant shall make an assignment for the benefit of creditors; or
(c) a voluntary petition be filed by Tenant for relief under Title 11 of the United States Code,
as amended or any other present or future federal or state insolvency, bankruptcy or similar law;
or
(d) an involuntary petition for relief be filed against Tenant under any such laws and such
petition is not dismissed within ninety (90) days; or
(e) any composition, rearrangement, extension, reorganization or other relief of debtors
now or hereafter existing is requested or consented to by Tenant; or
(f) a receiver be appointed for the property of Tenant by reason of the insolvency or alleged
insolvency of Tenant and such temporary receiver is not discharged or removed within one
hundred twenty (120) days; or
(g) Tenant shall make default in fulfilling any of the covenants of this Lease (other than the
covenants for the payment of the Basic Rent, Additional Rent, or other charges payable by
Tenant hereunder which are covered under separate provisions hereof), and such default shall
continue for a period of thirty (30) days after written notice, provided that if such default is
curable but cannot be cured within a period of thirty (30) days, if Tenant fails to proceed
promptly after the service of such notice and to prosecute such cure with due diligence (it being
intended that in connection with a default that is curable, but not susceptible of being cured
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within thirty (30) days, the time within which to cure the same shall be extended for such period
as may be reasonably necessary to complete the same with due diligence); or
(h) Tenant shall abandon, desert or vacate the Premises, and, the Premises remain
abandoned, deserted or vacant for a period of thirty (30) days after receipt of written notice to
Landlord; or
(i) Tenant shall suspend work on construction of Tenant's Improvements and Landlord's
Public Facilities for reasons not caused by Force Majeure for a period of 90 days or more and
such failure shall continue for thirty (30) days after delivery by Landlord to Tenant of written
notice specifying such failure; or
G) Any representation or warranty made by Tenant under this Lease shall be materially
false, misleading or inaccurate as of the date made.
Section 2. Remedies of Landlord. If Tenant Defaults, Landlord may, at its option and as its sole
and exclusive remedies, (i) if the default may be cured by payment of money, cure such default
and collect the payment made from Tenant as Additional Rent, or (ii) terminate this Lease and all
rights hereunder by written notice to Tenant specifying a termination date and the Term of this
Lease shall expire as fully and completely as if the date of such termination were the date
originally fixed for the expiration of the Term, and upon such termination, Tenant shall pay to
Landlord the Basic Rent and all other charges required to be paid by Tenant up to the time of
such termination of this Lease and shall quit and surrender the Premises and the Improvements to
Landlord and shall have no further rights to same whatsoever, or (iii) reenter the Premises and
the Improvements and remove all persons and all or any property therefrom, either by summary
dispossess proceedings or by any suitable action or proceeding at law or by force or otherwise,
without being liable to indictment, prosecution, or damages therefore, and repossess and enjoy
said premises together with all additions, alterations, and improvements, without such reentry
and repossession working a forfeiture of the rents to be paid and the covenants to be performed
by Tenant during the full Term hereof.
Upon Landlord's re-entering and recovering possession of the Premises and the Improvements as
provided in the preceding paragraph, whether with or without legal proceedings, by reason of or
based upon or arising out of an Event of Default, Landlord shall use reasonable diligence to re-
let the Premises or such part or parts thereof as may be practicable, for the account of Tenant or
otherwise, and receive and collect the rents therefore, applying the same first to the payment of
such reasonable expenses as Landlord may have incurred in recovering possession of the
Premises, including legal expenses and attorneys' fees, and in putting the same into good order or
condition or preparing or altering the same for rental, and all other expense, commissions, and
charges paid, assumed, or incurred by landlord in or about re-letting the Premises, and then to the
fulfillment of the covenants of Tenant hereunder. Any such re-letting herein provided for may be
for the remainder of the Term originally granted or for a longer or shorter period. In any such
case and whether or not the Premises, or any part thereof, be re-let, Tenant shall pay to Landlord
the Basic Rent and all other charges required to be paid by Tenant up to the time of such
recovery of possession of the Premises and the Improvements by Landlord, as the case may be,
and thereafter, Tenant agrees to pay the equivalent of the amount of all the Basic Rent reserved
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herein and all other charges required to be paid by Tenant, less the net avails of re-letting, if any,
and the same shall be due and payable by Tenant to Landlord on the several rent days above
specified, that is to say, upon each of such rent days Tenant shall pay to Landlord the amount of
the deficiency then existing. The terms "enter", "re-enter", "entry" or "re-entry" are used in this
Lease in their broadest sense and are not restricted to their technical legal meaning. Any entry or
re-entry by Landlord shall not be deemed to absolve or discharge Tenant from liability
hereunder.
Section 3. No Waiver. The failure of Landlord to insist upon a strict performance of any of
the terms, conditions and covenants herein shall not be deemed to be a waiver of any rights or
remedies that Landlord may have and shall not be deemed a waiver of any subsequent breach or
default in the terms, conditions and covenants herein contained except as may be expressly
waived in writing.
Section 4.
Default by Landlord. The following shall be deemed a default by Landlord:
(a) Landlord fails to keep, perform, or observe any of the covenants, agreements,
terms, or provisions in this Lease that are to be kept or performed by Landlord, and Landlord
shall fail to cure such failure within thirty (30) days after delivery by Tenant to Owner of written
notice specifying failure; or
(b) Any representation or warranty made by Landlord under the Lease shall be
materially false, misleading or inaccurate as of the date made.
Section 5. Tenant's Remedies. If the Landlord defaults, Tenant may exercise any other right
or remedy available to Tenant under applicable law, except as expressly limited by the terms of
this Lease.
ARTICLE XVIII
Leasehold Mortgage
Section 1. Tenant's Right to Finance. Tenant, and any successor or assign of Tenant, may
not, without Landlord's consent, pledge, mortgage or encumber the Leasehold Estate demised
hereunder. Any Leasehold Mortgage shall by its terms be made expressly subject to all of
Landlord's rights under the provisions, covenants, conditions, exceptions and reservations herein
contained, and to Landlord's interest in the Improvements at the expiration of the Term or the
earlier termination of this Lease. Landlord shall not be bound to recognize any Leasehold
Mortgagee or to give any Leasehold Mortgagee the notices, rights and protections contemplated
under this Lease unless such Leasehold Mortgagee or Tenant shall have notified Landlord of the
existence of such Leasehold Mortgage and of the name and United States address of such
Leasehold Mortgagee. Tenant shall provide to Landlord the name and mailing address of the
lender or leasehold mortgagee together wit true copies of the loan documents, including, as
applicable, deed of trust, mortgages, security agreements, and promissory notes, within ten (10)
days after execution by Tenant.
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Section 2. Tenant's Lender's Rights and Obligations. Landlord hereby agrees with and for
the benefit of each Leasehold Mortgagee and the successors and assigns of each Leasehold
Mortgagee:
(a) When giving notice to Tenant with respect to any default under this Lease or any exercise of
any right to terminate this Lease, Landlord will also give a copy of such notice to each Leasehold
Mortgagee at the address of each Leasehold Mortgagee furnished to Landlord, and no such
notice to Tenant shall be deemed to have been duly given nor shall such notice be effective
unless such notice is also given in said manner to each such Leasehold Mortgagee. Any
Leasehold Mortgage shall contain a provision requiring Mortgagee to notify Landlord of any
default by Tenant under such mortgage.
(b) In case Tenant shall default in respect of any of the provisions of this Lease, any Leasehold
Mortgagee shall have the right, but not the obligation, to cure such default whether the same
consists of the failure to pay Basic Rent or the failure to perform any other covenant which
Tenant is required to perform under this Lease, and Landlord shall accept performance, by or on
behalf of such Leasehold Mortgagee as though, and with the same effect as if, the same had been
done or performed by Tenant.
(c) Landlord hereby agrees to cooperate in good faith with the Leasehold Mortgagee and to
execute such additional documentation providing customary Leasehold Mortgagee protections as
may be reasonably requested by the Leasehold Mortgagee.
(d) A Leasehold Mortgagee (or its designee or nominee) may become the legal owner and
holder of the interest of Tenant under this Lease, including, without limitation, ownership of the
Improvements, by foreclosure -or other enforcement proceedings, or by obtaining an assignment
of this Lease in lieu of foreclosure or through settlement of or arising out of any pending or
threatened foreclosure proceeding, without Landlord's consent, subject always to the applicable
terms and provisions of this Lease.
(e) The provisions of this Article in favor of the Leasehold Mortgagee shall inure to the benefit
of the Leasehold Mortgagee and its successors, assigns and designees, and also any other
purchaser or transferee of this Lease pursuant to any foreclosure or bankruptcy proceedings, or
assignment in lieu thereof.
(f) Notwithstanding any contrary provision of this Lease, the Leasehold Mortgagee shall not be
liable or responsible in any respect for any of Tenant's obligations under this Lease unless and
until the Leasehold Mortgagee becomes the owner and holder of this Lease through foreclosure
or bankruptcy proceedings, or assignment in lieu thereof.
Section 3. Notice. Any notice or other communication which Landlord shall desire or is
required to give to or serve upon Leasehold Mortgagee shall be in writing and shall be served
personally or by Overnight courier service (such as Federal Express or UPS) addressed to such
Leasehold Mortgagee at its address as set forth in the notice to Landlord, or at such other address
as shall be designated from time to time by such holder by notice in writing given to Landlord.
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Any notice or other communication which any Leasehold Mortgagee shall desire or is required to
give to or serve upon Landlord shall be deemed to have been given or served if sent as set forth
in the provisions of the Lease providing for notices to Landlord.
Section 4. Amendment. Landlord will not modify, amend or accept a surrender of this Lease
without the prior written consent of the Leasehold Mortgagee.
ARTICLE XIX
Assignment and Subletting
Section 1. Assignment. Except as hereinafter provided, Tenant may not assign its interest in
this Lease without Landlord's consent, which may be granted or withheld in Landlord's sole
discretion. Notwithstanding the foregoing, the Landlord recognizes that the Tenant may assign
this Lease to, or may otherwise merge or consolidate its operation with, an affiliate of the
Tenant. Such assignment, merger or consolidation shall not require the consent of the Landlord.
For purposes of this Section 1, "affiliate" means, with respect to Tenant, (i) any entity directly or
indirectly controlling, controlled by, or under common control with Tenant, or (ii) any entity in
which Tenant owns at least twenty five percent (25%) of the voting interests.
Section 2. Subtenant's Rights. Landlord agrees that, in the enforcement of its rights under
this Lease, it shall not disturb the occupancy of subtenants approved by Landlord pursuant to
subleases made in compliance with this Lease and will recognize such subleases, provided that
(i) such subtenants agree to attorn to Landlord or its nominee upon the completion of such
enforcement proceedings, (ii) except for security deposits, lease buyouts and termination fees,
Landlord shall not be bound by payments of rent more than two (2) months in advance, and (iii)
Landlord shall not be liable for defaults by Tenant before the termination of this Lease. In this
regard, Landlord agrees to execute non-disturbance agreements in favor of the subtenants upon
Tenant's request therefore, provided the form of non-disturbance agreement is reasonably
acceptable to Landlord.
ARTICLE XX
Sale or Assignment by Landlord
Section 1. Sale. Landlord shall only sell its interest in the Land or this Lease (subject to the
Tenant's right of first refusal provided below) on the following terms. Any such sale shall be
subject to this Lease (provided the Tenant agrees to attorn to such purchaser), and the purchaser
or mortgagee shall acknowledge in writing that its interest in the Land is subject to this Lease
and, with respect to a purchaser, that it assumes all the obligations and liabilities of the Landlord
hereunder. At the closing of a sale of its interest in the Land and this Lease in accordance with
this Article, Landlord shall be released from any liability hereunder arising after the closing of
the sale.
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Section 2. Right of First Refusal. In consideration of Tenant's execution of this Lease,
Landlord hereby grants to Tenant for the entire Term of this Lease, a right of first refusal ("Right
of First Refusal ") with respect to the Land, subject to the terms and provisions set forth below. In
the event Landlord receives an offer to purchase the Land or any portion thereof during the Term
of this Lease which the Landlord intends to accept ("Offer"), Landlord shall provide written
notice of receipt of the Offer to Tenant. The giving of such notice shall constitute an offer by
Landlord to sell the Land (or applicable portion thereof) to the Tenant at the same purchase price
as contained in the Offer and otherwise in accordance with the terms and provisions of the Offer.
Not later than thirty (30) days after receipt of such notice, the Tenant may elect to purchase the
Land (or applicable portion thereof) at the purchase price in accordance with the terms and
provisions of the Offer by delivery to the Landlord of all of the following within such thirty (30)
day period:
(a) written notice of the election of the Tenant to acquire the Land (or applicable portion
thereof);
(b) a check made payable to the attorneys for the Landlord, as escrow agent, in the amount of
the deposit set forth in the Offer; and
(c) a duly executed sales agreement which contains the terms and provisions of the Offer.
In the event the Tenant fails to elect to purchase the Land (or applicable portion thereof) within
said thirty (30) day period and in accordance with the foregoing, then Landlord shall be free to
accept the Offer and the Land (or applicable portion thereof) may be sold and conveyed to the
buyer under the Offer free and clear of the Right of First Refusal (subject to the provisions of
Section 1 above).
ARTICLE XXI
No Merger
There shall be no merger of this Lease or of the Leasehold Estate hereby created with the fee
estate in the Land or any part thereof by reason of the fact that the same person may acquire or
hold, directly or indirectly, this Lease or the Leasehold Estate hereby created or any interest in
this Lease or in such Leasehold Estate as well as the fee estate in the Land or any interest in such
fee estate.
ARTICLE XXII
Notices
Any and all information, notices or demands herein required or provided for shall be delivered
personally by hand delivery service, by overnight courier service (such as Federal Express or
UPS) or certified mail, return receipt requested (postage prepaid) to the following addresses:
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If to Landlord:
With a copy to:
If to Tenant:
with a copy to:
Rick Conner, City Manager
City of Sunny Isles Beach
18070 Collins Avenue, 4th Floor
Sunny Isles Beach, FL 33160
Attn: City Manager
Hans Ottinot, City Attorney
City of Sunny Isles Beach
18070 Collins Avenue, 4th Floor
Sunny Isles Beach, FL 33160
Attn: Hans Ottinot, City Attorney
4M Investors, LLC
3211 Ponce De Leon Blvd., Suite 301
Coral Gables, FL 33134
Weiss, Serota, Helfman, Pastoriza, Cole, et al.
Attn: Clifford Schulman, Esq.
3211 Ponce de Leon Boulevard
Coral Gables, Florida 33134
Fax No. (305) 854-2323
Either party may at any time hereafter by giving written notice to the other party as above
provided, change its address for notices or demands or the name of the person to whom notices
or demands may be sent. All notices shall be deemed given when the initial attempted delivery is
refused or when received, and the usual receipt (which need not be signed by the individual
addressees) shall be evidence of delivery.
ARTICLE XXIII
Estoppel Certificates
Landlord and Tenant agree that, at any time and from time to time during the Term of this Lease,
within ten (10) days after request by the other, Landlord or Tenant, as applicable, will execute,
acknowledge and deliver to the other or to any prospective purchaser, assignee or mortgagee
designated by the other, a certificate stating (a) that this Lease is unmodified and in force and
effect (or if there have been modifications, that this Lease is in force and effect as modified, and
identifying the modification agreements); (b) the date to which rent has been paid; (c) whether or
not there is any existing default by Tenant in the payment of any Basic Rent, Additional Rent or
other sum of money hereunder, and whether or not there is any other existing default by either
party hereto, and, if there is any such default, specifying the nature and extent thereof; (d)
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31
whether or not there are any setoffs, defenses, or counterclaims against enforcement of the
obligations to be performed hereunder existing in favor of the party executing such certificate;
and (e) any other information relating to this Lease reasonably requested by the other.
ARTICLE XXIV
Miscellaneous
Section 1. Covenants. The parties hereto agree that all of the terms, covenants and
provisions hereof shall be covenants running with the Land and shall be binding upon and shall
inure to the benefit of the parties hereto and their respective grantees, successors and assigns.
Section 2. Headings. The headings of the several Articles of this Lease are for convenience
only and do not define, limit or construe the contents of the Articles. All references in this Lease
to Exhibits, Sections, Subsections, Articles and paragraphs refer to the respective provisions of
this Lease, unless the reference expressly identifies another document.
Section 3. Recording. This Lease shall not be recorded, but a Memorandum of Lease in the
form attached hereto as Exhibit "GF" (the "Memorandum of Lease") shall be executed
simultaneously herewith and recorded by Tenant. Recording costs and State of Florida
documentary stamps and/or other transfer taxes which legally must be attached to this Lease
shall be paid in full by Tenant.
Section 4. Severability. Each and every covenant and agreement contained in this Lease
shall be for all purposes construed to be a separate and independent covenant and agreement and
the breach of any covenant or agreement contained herein by Landlord shall in no wise or
manner discharge or relieve Tenant from Tenant's obligation to perform each and every covenant
and agreement contained herein. If any term or provision of this Lease or the application thereof
to any person or circumstance shall to any extent be found or adjudged invalid or unenforceable,
the remainder of this Lease, or the application of such term or provision to persons or
circumstances other than those as to which it is invalid or unenforceable, shall not be affected
thereby, and each term and provision of this Lease shall be valid and shall be enforced to the
fullest extent permitted by law.
Section 5. Brokerage Fees. Landlord and Tenant hereby represent and warrant, each to the
other, that they have not dealt with, any broker, finder or any other person, firm, corporation or
other legal entity so as to create any legal right or claim of any kind or nature for a commission
or similar fee or compensation with respect to or arising out of this Lease. Landlord and Tenant
hereby indemnify each other against, and agree to hold each other harmless from, any liability or
claim (and all expenses, including, without limitation, reasonable attorneys' fees, incurred in
defending any such claim or in enforcing this indemnity) for a real estate brokerage commission
or similar fee or compensation arising out of or in any way connected with any claimed dealings
with the indemnitor and/or this Lease. The provisions of this Section shall survive the expiration
or sooner termination of this Lease.
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Section 6. Jurisdiction and Venue. The Lease shall be governed by, and construed and
enforced in accordance with, the laws of the State of Florida.
Section 7.
this Lease.
Time is of the essence of all the terms, provisions, covenants and conditions of
Section 8. Not Binding Until Executed. Submission of this instrument for examination does
not constitute an offer, right of first refusal, reservation of or option for the Land. This
instrument becomes effective as a Lease only upon execution and delivery by both Landlord and
Tenant.
Section 9. Radon. Radon is a naturally occurring radioactive gas that, when it has
accumulated in a building in sufficient quantities, may present health risks to persons who are
exposed to it over time. Levels of radon that exceed federal and state guidelines have been found
in buildings in Florida. Additional information regarding radon testing may be obtained from
your county Public Health Unit. Section 404.056(6), Florida Statutes.
Section 10. Entire Agreement and Modification. This Lease contains the entire agreement
between Landlord and Tenant and supersedes all prior negotiations, representations and
agreements, whether written or oral. This Lease may be modified only by an agreement in
writing signed by Landlord and Tenant. Any formally executed addendum to or modification of
this Lease shall be expressly deemed incorporated by reference herein unless a contrary intention
is clearly stated therein.
Section 11. Unavoidable Delay or Force Maieure. In the event either party hereto is delayed
in the performance of any act required hereunder by reason of an "Unavoidable Delay" (as
hereinafter defined), then performance of such act shall be excused for the period of the
Unavoidable Delay and the period for the performance of such act shall be extended for a period
equivalent to the period of the unavoidable delay; provided, however, the foregoing shall not be
applicable to Tenant's obligation to pay Basic Rent, Additional Rent and any other sums or
charges pursuant to this Lease. For purposes of this Lease, the term "Unavoidable Delay" shall
mean delays due to strikes, acts of God, inability to obtain labor or materials, governmental
restrictions, enemy action, civil Commotion, fire, other casualty or similar causes beyond the
reasonable control of the party hereto claiming such Unavoidable Delay.
Section 12. Interpretation. Landlord and Tenant hereby agree to interpret the terms,
conditions and provisions of this Lease in good faith exercising reasonable business judgment,
and to attempt to resolve any and all issues, disputes or conflicts that may arise hereunder in a
reasonable and fair manner.
Section 13. City's Representative. Landlord hereby appoints the City Manager of the City of
Sunny Isles Beach to serve as its representative. The City Manager is hereby authorized to
execute and deliver on behalf of the Landlord all consents and/or approvals hereunder.
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Section 14. Counterparts. This Lease may be executed in any number of counterparts, each of
which shall be deemed an original, but all such counterparts shall constitute but one instrument,
and facsimile transmissions of signatures shall be deemed to be original signatures.
Section 15. Attorney's Fees. In the event of any litigation ensuing or growing out of the
terms of this Lease, the prevailing party shall be entitled to recover all costs incurred, including,
without limitation, reasonable attorneys' and paralegals' fees and costs at all tribunal levels.
Section 16. Authority. Landlord and Tenant shall each execute and deliver to the other such
documentation as the parties' respective legal counsel may deem reasonably necessary to
evidence the authority of the persons executing this Lease on behalf Landlord and Tenant to do
so.
Section 17. Letter of Credit. Within thirty (30) business days following the date this Lease is
approved by the City Commission, Tenant shall deliver to Landlord a letter of credit (the "Letter
of Credit") in favor of the Tenant in the amount of Fifteen Million and Noll 00 Dollars
($15,000,000.00) as security for the performance by Tenant of its obligations under this Lease.
The Letter of Credit shall (i) be issued by a financial institution reasonably acceptable to
Landlord, (ii) be issued for a term of at least one (1) year, and during the Term, at least thirty
(30) days prior to the then stated maturity date of the Letter of Credit, the maturity date of the
Letter shall be extended to a date not less than one (1) year after the previously stated maturity
date, (iii) be payable upon delivery of a site-draft, and (iv) be otherwise reasonably acceptable to
the Landlord.
IN WITNESS WHEREOF, Landlord and Tenant have caused this instrument to be duly
executed as of the day and year first above written.
Signed in the presence of:
4M Investors, LLC,
a Florida limited liability company
Print Name:
By:
Name: Jose Milton
Title: Manager
Print Name:
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Signed in the presence of:
City of Sunny Isles Beach, Florida
a municipal corporation
Print Name:
By:
Rick Conner, City Manager
Attest:
Print Name: Jane A. Hines, CMC, City Clerk
APPROVED AS TO FORM AND
LEGAL SUFFICIENCY
By:
Hans Ottinot, City Attorney
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EXHIBIT "A"
Legal Description
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EXHIBIT B"
Legal Description of Landlord's Property
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EXHIBIT "C"
Preliminary Plans/Conceptual Plans
I 1:\201 0\10023 I\GROUND LEASE WORKING DRAFT 11.16.10.doc
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DESIGN-BUILD
AGREEMENT
Aquatic Entertainment Center
"Construction Agreement"
THIS AGREEMENT (this "Agreement"), made and entered into the _ day of
,2011 by and between:
CITY OF SUNNY ISLES BEACH, FLORIDA
a municipal corporation
18070 Collins Avenue
Sunny Isles Beach, FL 33160
(hereinafter referred to as "CITY"), and Assigns
AND
4M Investors, LLC
a Florida corporation
(hereinafter referred to as "CONTRACTOR")
WHEREAS, on October 6th, 2010, via RFP# 10-10-01, CITY issued its notice to bidders
of the CITY'S desire to hire a firm to perform the following work:
"Design/Build Services for an Aquatic Entertainment Center"; and
WHEREAS, in response to the RFP, the CITY adopted Resolution 2010-1632 dated
November 18, 2010, relating to CONTRACTOR'S design and construction of an Aquatic
Entertainment Center as well as a Park and Parking Garage; and
WHEREAS, the CITY, as outlined above, has identified a certain parcels of real property
located in the CITY (the "Land") and which is owned by it upon which it intends to have
constructed an Aquatic Entertainment Center and other, site improvements consisting of a Park,
Parking Garage, as well as high end retails shops to be constructed on the Land and referred to as
the "Project" ; and
WHEREAS, CITY and CONTRACTOR, in reliance on the proposals set forth in the RFP
and Response to RFP submitted by Contractor, now desire to enter into this Agreement respecting
the Project; and
WHEREAS, CITY has determined that entering into this Agreement with CONTRACTOR
for the design and construction of the Project contemplated by this Agreement is in the best
interests of the health, safety, and welfare of the citizens and residents of Miami-Dade County and
of the CITY of Sunny Isles Beach, Florida; and
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WHEREAS, because there will be inherent efficiencies and economies achieved by the
CITY which will be in the best interest of the health, safety and welfare of the citizens and residents
of Miami-Dade County and the CITY of Sunny Isles Beach, Florida, the CITY has determined it is
appropriate to enter into this Agreement embracing the design and construction of the Project, all as
more fully set forth below;
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants and undertakings
and other good and valuable consideration the receipt and sufficiency of which is hereby
acknowledged, the parties do mutually covenant and agree as follows:
ARTICLE 1 - DEFINITIONS ARTICLE 1 - DEFINITIONS
Wherever used in this Agreement or in the other Contract Documents the following terms
have the meanings indicated which are applicable to both the singular and plural thereof:
1.1 Agency Representative -City Manager or designee, who shall have such duties and
responsibilities as provided herein and by law. If he/she shall cease to hold the position, it shall be
the person so designated by the CITY.
1.2 Agreement - The written agreement between the CITY and CONTRACTOR
covering the Work to be performed including other Contract Documents that are attached to the
Agreement or made a part thereof.
1.3 Building Department - The Building Department of the CITY of Sunny Isles Beach,
Florida, or its authorized employees.
1.4 Buy Back Agreement- shall mean that document to be entered into and executed
simultaneously with the Ground Lease between the City and Contractor which set forth the terms
and provisions under which the City may sell to the Contractor that portion of the parking garage
that is to consist of the nineteen thousand (19,000) square feet of commercial retail space as
referred to in Section 5.2.
1.5 Change Order - A document which is signed by CONTRACTOR and CITY and
authorizes an addition, deletion or revision in the Work within the general scope of this Agreement,
or an adjustment in the Guaranteed Maximum Price or the Contract Time, issued on or after the
Effective Date of the Agreement.
1.6 CITY - The CITY Commission of the CITY of Sunny Isles Beach, Florida and its
designees, with whom CONTRACTOR has entered into the Agreement and for whom the Work is
to be provided.
1.7 Contract Documents - The Contract Documents consist of the Drawings, Plans and
Specifications, Non-Collusive Affidavit, Public Entity Crimes Form, this Agreement, Notice of
Award, Notice to Proceed, Certificate(s) of Insurance, Payment and Performance Bonds and any
additional documents which are required to be submitted under this Agreement, and all Written
Amendments, modifications and supplements, Field Orders, Change Orders and Work Change
Directives issued on or after the effective date of the Contract.
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1.8 Defective - An adjective which when modifYing the Work refers to Work that is
unsatisfactory, faulty or deficient, or does not conform to the Contract Documents, or does not meet
the requirements of any inspection, reference standard, test or approval referred to in the Contract
Documents, or has been damaged prior to final payment.
1.9 Drawings - The drawings which show the character and scope of the Work to be
performed and which are referred to in the Contract Documents.
1.10 Effective Date of the Agreement - The date indicated in the Agreement on which it
becomes effective, but if no such date is indicated it means the date on which the Agreement is
signed and delivered by the last of the two parties to sign and deliver.
1.11 Public Works Director - The Public Works Director of the CITY of Sunny Isles
Beach, Florida, or his/her authorized employees.
1.12 Field Order - A written order issued by Public Services Director which orders minor
changes in the work but which does not involve a change in the Guaranteed Maximum Price or the
Contract Time.
1.13 Notice of Award - The written notice by CITY to the CONTRACTOR stating that
upon compliance by the CONTRACTOR with the conditions precedent enumerated herein, within
the time specified CITY will sign and deliver the Agreement.
1.14 Notice to Proceed - A written notice given by CITY to CONTRACTOR fixing the
date on which the Contract Time will commence to run and on which CONTRACTOR shall start to
perform CONTRACTOR'S obligations under the Contract Documents.
1.15 Specifications - Those portions of the Contract Documents consisting of written
technical descriptions of materials, equipment, construction systems, standards and workmanship as
applied to the Work and certain administrative details applicable thereto.
1.16 Subcontractor - An individual, firm or corporation having a direct Contract with
CONTRACTOR or with any other Subcontractor for the performance of a part of the Work at the
site.
1.17
Supplier - A manufacturer, fabricator, supplier, distributor, materialman or vendor.
1.18 Work - Work is the result of performing services, specifically, including but not
limited to, professional design services and construction, furnishing labor, soil borings, equipment
and materials incorporated, used or incorporated in the design and construction of the entire project
as required by the Contract Documents.
1.19 Work Change Directive - A written directive to CONTRACTOR issued on or after
the Effective Date of the Agreement and signed by CITY and recommended by Public Services
3
Director ordering an addition, deletion or revision in the Work. A Work Change Directive shall not
change the Guaranteed Maximum Price or Time, but is evidence that the parties expect that the
change directed or documented by a Work Change Directive may be incorporated in a subsequently
issued Change Order following negotiations by the parties as to its effect, if any, on the Guaranteed
Maximum Price or Contract Time.
1.20 Written Amendment - A written amendment of the Contract Documents, signed by
CITY and CONTRACTOR on or after the Effective Date of the Agreement and normally dealing
with the non-engineering, non-architectural, or non-technical aspects rather than strictly Work
related aspects of the Contract Documents.
ARTICLE 2 - CONTRACT DOCUMENTS ARTICLE 2 - CONTRACT DOCUMENTS
2.1
Enumeration of Contract Documents:
The Contract Documents which comprise the entire agreement between CITY and
CONTRACTOR are attached to this Agreement, made a part hereof and consist of the following:
2.1.1 This Agreement (pages 1-_ + Exhibits A & B + other items and
documents identified on the attached Enumeration of Contract Documents
2.1.2 Construction performance bond.
2.1.3 Construction payment bond.
2.1.4 Drawings and Outline Specifications.
2.1.5 Insurance certificate.
2.1.6 Notice of Award and Notice to Proceed.
2.1. 7 Clarifications and Exclusions.
2.1.8 All applicable provisions of State, Federal or local law.
2.1.9 Any modification, including all Change Orders, Written Amendments and
Work Change Directive duly delivered after execution of Agreement.
2.2
Entire Agreement:
The Contract Documents comprise the entire agreement between CITY and
CONTRACTOR concerning the Work. The Contract Documents are complimentary; what is
called for by one is as binding as if called for by all. The Contract Documents will be construed in
accordance with the law of the State of Florida.
4
2.3
Intent:
It is the intent of the Contract Documents to describe a functionally complete project
consisting of total design performed by the design professional and construction to be completed in
accordance with the Contract Documents. Any Work, materials or equipment that may reasonably
be inferred from the Contract Documents as being required to produce the intended result will be
supplied whether or not specifically called for. When words which have a well known technical or
trade meaning are used to describe Work, materials or equipment such words shall be interpreted in
accordance with that meaning. Reference to standard specifications, manuals or codes of any
technical society, organization or association, or to the laws or regulations of any governmental
authority, whether such reference be specific or by implication, shall mean the latest standard
specification, manual, code or laws or regulations in effect at the time of contract award, except as
may be otherwise specifically stated. However, no provision of any referenced standard
specification, manual or code (whether or not specifically incorporated by reference in the Contract
Documents) shall be effective to change the duties and responsibilities of CITY, CONTRACTOR,
or any of their consultants, agents or employees from those set forth in the Contract Documents.
2.4
Amending and Supplementing Contract Documents:
The Contract Documents may be amended to provide for additions, deletions and
revisions in the Work or to modifY the terms and conditions thereof in one or more of the following
ways:
2.4.1 A Change Order, subject to 2.5.4, below;
2.4.2 A Written Amendment; or
2.4.3 Work Change Directive.
2.5 Supplements, Minor Variations or Deviations:
2.5.1 CITY will not authorize any change orders to the Contract Documents,
except in a manner allowed by law. CONTRACTOR covenants and agrees that CITY shall not be
responsible for the costs above those set forth herein unless the same are set forth in a Change
Order or Written Amendment. Any and all change orders issued by the authority of an entity not a
party to this Agreement shall not be compensated by CITY, and shall not constitute a Change
Order.
2.5.2 The requirements of the Contract Documents may be supplemented and
minor variations and deviations in the Work may be authorized in one or more of the following
ways:
2.5.3 Public Services Director's approval of a shop drawing or sample; or
5
I
2.5.4 Public Services Director's written interpretation or clarification; or
2.5.5 A Field Order.
2.6 Representation of CONTRACTOR:
Execution of the Contract by the CONTRACTOR is a representation that
CONTRACTOR has visited the site and become familiar with the local conditions under which the
Work is to be performed.
2.7
Before Commencing Operations:
Before undertaking each part of the Work, CONTRACTOR shall carefully study
and compare the Contract Documents and check and verifY pertinent figures shown thereon.
CONTRACTOR shall promptly report in writing to CITY and Public Services Director any
conflict, error or discrepancy which CONTRACTOR may discover and shall obtain a written
interpretation or clarification from Public Services Director before proceeding with any Work
affected thereby.
ARTICLE 3 - SCOPE OF WORK
3.1 CONTRACTOR shall provide services for the designing and construction of the
Project as described in the Contract Documents with all required minimum standards of
construction as required by the Contract Documents.
ARTICLE 4 - CONTRACT TIME
4.1 Time is of the Essence of this Contract. The Work shall be commenced upon the
date of Contract Commencement specified in the Notice to Proceed and, subject to authorized
adjustments, shall be substantially completed no later than December 1, 2013. CONTRACTOR
agrees that all Work shall be prosecuted regularly, diligently and uninterrupted at such rate of
progress as will ensure full completion thereof within the time specified. Failure to achieve timely,
substantial and/or final completion shall be regarded as a breach of this Agreement and subject to
the appropriate remedies including but not limited to, liability for liquidated damages in accordance
with Paragraph 12.3 herein.
6
4.2 Interim milestones and/or Substantial Completion of identified portions of the Work
shall be achieved as follows:
4.3 Final Completion of the Work or identified portions of the Work shall be achieved
as expeditiously as reasonably practicable.
ARTICLE 5 CONTRACT SUM - GUARANTEED MAXIMUM PRICE
5.1 CITY shall pay CONTRACTOR in current funds as full compensation for the
performance of all the Work for the construction of the Public Improvements which shall consist of
the Elevated Park and a three hundred eight (308) space Parking Garage which shall include
approximately 19,000 square feet of ground level retail area, but subject to additions and deductions
by Change Order or Written Amendment as provided in this Agreement, and subject further to
possible reductions as set forth in Article 6.2.1 below, the sum of Fifteen Million Dollars and
00/100 ($15,000,000.00) (the "Guaranteed Maximum Price"). This Article is subject to the terms
and conditions of Article 20 hereof.
5.2 Buy Back Provision. CITY and CONTRACTOR agree and acknowledge that it is
the intent of the parties to negotiate and enter into a Buy-Back Agreement relative to the nineteen
thousand (19,000) square feet of commercial retail space to be located in the garage.
ARTICLE 6 CONTRACTOR'S RESPONSIBILITIES
6.1
Responsibilities - Preconstruction Phrase:
6.1.1 Preliminary Evaluation: CONTRACTOR shall provide preliminary
evaluation of the CITY's program and Project budget requirements, each in terms of the other.
6.1.2 Consultation: CONTRACTOR will schedule and attend regular meetings
and will consult with CITY regarding site use and improvements, and the selection of materials,
building systems, and equipment.
6.1.3 Subcontractors and Suppliers: CONTRACTOR shall develop subcontractor
interest in the Project and shall furnish to the CITY, information, a list of subcontractors, including
suppliers who are to furnish materials or equipment fabricated to a special design. The receipt of
7
such list shall not require the CITY to investigate the qualifications of proposed subcontractors or
suppliers, nor shall it waive the right of the CITY later to object to or reject any proposed
subcontractor or supplier, and is furnished by CONTRACTOR to CITY for informational purposes
only. Subject to the rights of the CITY to purchase supplies and materials in furtherance of the
sales tax program as described in Article 6.16 hereof, CONTRACTOR shall have sole authority in
awarding subcontractors and purchase orders.
6.1.4 Extent of Responsibility: CONTRACTOR shall be responsible for the
architecture, engineering, construction and completion of the Project.
6.2
Guaranteed Maximum Price:
6.2.1 The Guaranteed Maximum Price includes a separate line item for the
CONTRACTOR'S Contingency. The CONTRACTOR'S Contingency is for the sole use of the
CONTRACTOR to account for the costs of unknown conditions in the estimate and the execution
of the Work. The Guaranteed Maximum Price is also subject to further reduction by an amount
calculated by multiplying the applicable Florida sales tax rate times the amount of material and
supplies purchased by the CITY under the sales tax program described in Article 6.16 hereof.
The Guaranteed Maximum Price may be modified only as herein provided, including
possible changes as a result of additional work and improvements as may be documented in a City
Commission approved Change Order[ s]. It is agreed that the Guaranteed Maximum Price includes
certain items for which all specifications or determinations have not been made and thus final
estimate of cost cannot be made.
6.2.2 The Guaranteed Maximum Price shall include in the Cost of Work only
those taxes which are enacted at the time the Guaranteed Maximum Price is established.
6.2.3 The Guaranteed Maximum Price shall include all preconstruction costs.
6.3 Administration:
6.3.1 Those portions of the Work that the CONTRACTOR does not customarily
perform with the CONTRACTOR's own personnel shall be performed under subcontracts or by
other appropriate agreements with the CONTRACTOR. CITY may not prohibit the
CONTRACTOR from obtaining bids from any qualified bidders. The CONTRACTOR shall not
be required to contract with anyone to whom the CONTRACTOR has reasonable objection, and the
CONTRACTOR shall not contract with anyone to whom the CITY has reasonable objection.
6.3.2 If a specific bidder amount those whose bids are delivered by the
CONTRACTOR to the CITY and/or his designees (1) is recommended to the CITY by the
CONTRACTOR; (2) is qualified to perform that portion of the Work; and (3) has submitted a bid
which conforms to the requirements of the contract Documents without reservations or exceptions,
but the CITY requires that another bid (which is mutually acceptable to both parties) be accepted,
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then the CONTRACTOR may require that a change in the Work be issued to adjust the Contract
Time and the Guaranteed Maximum Price by the difference between the bid of the person or entity
recommended to the CITY by the CONTRACTOR and the amount of the subcontract or other
agreement actually signed with the person or entity designated by the owner.
6.3.3 The CONTRACTOR shall schedule and conduct weekly meetings at which
the CITY and CONTRACTOR, and appropriate Subcontractors can discuss the status of the Work.
The CONTRACTOR shall prepare and promptly distribute meeting minutes.
6.3.4 The CONTRACTOR shall provide monthly written reports to the CITY and
designated consultants on the progress of the entire Work. The CONTRACTOR shall maintain a
daily log containing a record of weather, Subcontractors working on the site, number of workers,
Work accomplished, problems encountered, and other similar relevant data as the CITY designated
consultants may reasonably require. The log shall be available to the CITY and designated
consultants at any time during the business hours of 8:00 a.m. - 5 :00 p.m. Monday through Friday.
6.3.5 The CONTRACTOR shall develop a system of cost control for the Work,
including regular monitoring of actual costs for activities in progress and estimates for uncompleted
tasks and proposed changes.
6.4
Design Responsibilities:
6.4.1 CONTRACTOR shall determine the general scope, extent and character of
the Work. CONTRACTOR shall prepare preliminary design documents consisting of preliminary
drawings, specifications and other documents to fix and describe the size, quality and characters of
the work, its architectural, structural, mechanical and electrical systems and the materials and other
elements of the work. CONTRACTOR shall submit the preliminary design documents to CITY for
review and authorization to proceed with the final design preparation. Upon written authorization
from CITY to proceed with the final design, CONTRACTOR shall prepare final drawings, plans,
schedules, specifications, technical criteria, written descriptions, design data, construction
documents and diagrams setting forth in detail the requirements for construction of the work and
submit the same to CITY for approval by the City Commission prior to commencing construction
of the Work; upon approval the same shall become part of the Contract Documents, and shall
supersede the preliminary Drawings and Specifications. All final design documents, plans, reports,
studies and other data prepared by CONTRACTOR shall bear the endorsement of a person duly
registered in the appropriate professional category.
6.4.2 After CITY'S acceptance of the final design documents, the original set of
CONTRACTOR'S drawings and specifications shall be provided to CITY along with three (3)
record sets and three (3) working sets of full size prints (including specifications). CONTRACTOR
shall signifY, by affixing an endorsement (seal/signature, as appropriate) on every sheet of the
record set, that the Work shown on the endorsed sheets was produced by CONTRACTOR. With
the record set of prints, CONTRACTOR shall submit a final set of design computations. The
computations shall be bound in an 8 1/2" by 11" format and shall be endorsed (seal/signature as
appropriate) by CONTRACTOR.
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6.4.3 All tracings, plans, drawings, diagrams, specifications, maps, reports and
other design documents prepared or obtained under this Agreement shall be considered as
instruments of service and shall remain the exclusive property of CONTRACTOR, and shall not be
used by CITY without CONTRACTOR's prior written consent.
6.4.4 All services shall be performed by CONTRACTOR in conformance with
the Contract Documents, and CONTRACTOR shall follow generally accepted engineering
standards in so doing. If the parties disagree as to whether CONTRACTOR has met that obligation
the provisions of Article 16.4 shall apply.
6.4.5 Design shall be performed by qualified architects, engineers and other
professionals duly licensed by the State of Florida and holding current certificates of registration
under the laws of the State of Florida to practice architectural and/or engineering and who are
selected and paid by the CONTRACTOR. The Contractor agrees that the City will be allowed to
review the construction plans and specification documents at the thirty percent, fifty percent, and
ninety percent development stages and if the City does not feel that the Contractor is not providing
the final product that has been that has been presented both verbally and in the initial conceptual
drawings, the City may at its sole discretion, void the contract as in accordance with Section 16.2.1
of this Agreement. The Contractor has the option of providing revised drawings within ninety days
that rectifY any deficiencies to the satisfaction of the City, at their sole discretion.
6.5
Liability for use of Work for Intended Purpose:
As an inducement for CITY to enter into this Agreement, CONTRACTOR has represented
an expertise in professional design services and the construction of public construction projects by
qualified and licensed general construction contractors. In reliance upon those representations,
CITY hired CONTRACTOR to provide professional design services and complete construction
services. CONTRACTOR shall be liable for any defective or negligent design, whether patent or
latent, and/or any negligence, strict liability or breach of other legal duty to the extent and in the
manner as hereafter set forth.
6.6 Shop Drawings and Samples:.
6.6.1 CONTRACTOR shall prepare and submit any submittals or shop drawings
required for permitting to the authority having jurisdiction, and shall furnish a copy to the Public
Services Director.
6.6.2 CONTRACTOR shall prepare and maintain shop drawings and submittals
referenced in Paragraph 6.6.1 and make them available for review by CITY.
6.6.3 Review of the shop drawings by CITY shall be general and shall not relieve
the CONTRACTOR of the responsibility for the accuracy of such drawings, nor for the proper
fitting and construction of the work, nor for the furnishing of material or work required by the
Agreement and not indicated on the drawings.
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6.7 Supervision and Superintendence:
CONTRACTOR shall supervise and direct the Work competently and efficiently,
devoting such attention thereto and applying CONTRACTOR'S best skill, attention and expertise.
CONTRACTOR shall be solely responsible for and have control over the means, methods,
techniques, sequences and procedures of construction. CONTRACTOR shall be responsible to see
that the finished Work complies with the Contract Documents.
6.8 Proiect Management:
6.8.1 During the progress of on-site construction, CONTRACTOR shall provide
full time (defined to be 8:00 a.m. through 5:00 p.m. Monday through Friday, legal holidays
excluded) competent project supervision and any necessary assistants who shall not be replaced
without written notice to CITY. The superintendent will be CONTRACTOR'S representative at the
site. The CONTRACTOR may, with the permission of the Public Services Director, schedule
prosecution of the Work during times not otherwise allowable for construction within the CITY.
6.8.2 The day to day management of the Project's subcontractors and vendors
contracts, schedules and requests for payment shall be by a competent project manager to whom the
superintendent shall report. The project manager will conduct regularly scheduled project meetings
for the purpose of project coordination and communication. The project manager shall be included
in the cost of the Work.
6.9
Labor:
6.9.1 Construction services shall be performed only by qualified construction
contractors licensed to do business in the State of Florida and suppliers, selected and paid by the
CONTRACTOR.
6.9.2 CONTRACTOR shall provide and pay for competent, suitably qualified
personnel to perform the work as required by the Contract Documents. CONTRACTOR shall not
permit employment of unfit persons or persons not skilled in tasks assigned to them.
CONTRACTOR shall at all times maintain good discipline and order at the site.
6.10
Materials:
6.10.1 Unless otherwise specified herein, CONTRACTOR shall furnish, pay for
and assume full responsibility for all materials, equipment, transportation, machinery, tools,
appliances, water, heat, utilities and all other facilities and services necessary for the furnishing,
performance, testing, start-up and proper completion of the Work.
6.10.2 CONTRACTOR warrants that all materials and equipment shall be of good
quality and new, unless otherwise provided in the Contract Documents and that the work will be
free from defects whether patent or latent in nature. All materials and equipment shall be applied,
installed, connected, erected, used, cleaned and conditioned in accordance with the instructions of
the applicable Supplier except as otherwise provided in the Contract Documents.
] I
6.11
Concerning Subcontractors, Suppliers, and Others
6.11.1 Prior to the commencement of each phase of the Work hereunder, CONTRACTOR
shall furnish, in writing to CITY, the names of persons or entities (including those who are to
furnish materials or equipment fabricated to a special design) proposed for the relevant phase of the
work. CITY shall advise CONTRACTOR, in writing, of any proposed person or entity to which
CITY has a reasonable objection. Failure of CITY to reply within two (2) business days shall
constitute notice of no reasonable objection. CONTRACTOR shall not contract with a proposed
person or entity to whom CITY has made a reasonable and timely objection. If CITY has
reasonable objection to a person or entity proposed by CONTRACTOR, CONTRACTOR shall
propose another to whom CITY has no reasonable objection. CONTRACTOR shall not change a
subcontractor, person or entity previously selected if CITY makes reasonable objection to such
change.
6.11.2 CONTRACTOR shall be fully responsible to CITY and shall indemnifY and hold
the City harmless for all acts and omissions of the CONTRACTOR'S employees, Subcontractors,
Suppliers and other persons directly or indirectly employed by his Subcontractors, suppliers and of
persons for whose acts any of them may be liable and any other persons and organizations
performing or furnishing of the Work under a direct or indirect Contract with CONTRACTOR.
Nothing in the Contract Documents shall create any Contractual relationship between CITY and
any such Subcontractor, supplier or other person or organization, nor shall it create any obligation
on the part of CITY to payor to see to the payment of any moneys due any such Subcontractor,
supplier or other person or organization except as may otherwise be required by laws and
regulations.
6.11.3 All Work performed for CONTRACTOR by a Subcontractor will be pursuant to an
appropriate agreement between CONTRACTOR and the Subcontractor which specifically binds
the Subcontractor to the applicable terms and conditions of the Contract Documents for the benefit
of CITY.
6.12
Patent Fees and Royalties:
CONTRACTOR shall pay all license fees and royalties and assume all costs
incident to the use in the performance of the Work or the incorporation in the Work of any
invention, design, process, product or device which is the subject of patent rights or copyrights held
by others.
6.13
Permits:
CONTRACTOR shall obtain and pay for all permits and licenses. CONTRACTOR
shall pay all governmental charges and inspection fees necessary with the exception that the CITY
hereby waives its own municipal permit and inspection fees relating to the Work. No waiver is
given with respect to any reinspection fees or fees.
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6.14 Laws and Regulations:
CONTRACTOR shall comply with and give all notices required by laws,
ordinances, rules, regulations and lawful orders of public authorities applicable to the performance
of the Work. CITY shall not be responsible for monitoring CONTRACTOR'S compliance with
any laws and regulations. CONTRACTOR shall promptly notifY CITY if the Contract Documents
are observed by CONTRACTOR to be at variance therewith.
6.15 Risk of Loss; Title
The risk of loss, injury or destruction shall be on CONTRACTOR until acceptance
of the work by CITY. Title to the Work shall pass to CITY upon acceptance of the Work by CITY.
6.16 Taxes:
CONTRACTOR shall pay all sales, consumer, use and other similar taxes required
to be paid by CONTRACTOR in accordance with the laws and regulations of the State of Florida
and its political subdivisions. CONTRACTOR is responsible for reviewing the pertinent state
statutes involving such taxes and complying with all requirements. CITY and CONTRACTOR
shall jointly cooperate so that CITY may order and pay for goods and supplies which will be
incorporated into the Work; the goods and supplies that may be purchased by CITY shall be
approved in advance by the parties, and shall generally be only those that cost more than $10,000
for the quantity or amount being ordered under the particular purchase order. Even though the
CITY may purchase such goods and materials, the same shall be stored at the site in the same
manner as goods and materials purchased by the CONTRACTOR, and CONTRACTOR shall bear
the risk of loss. As compensation to the CONTRACTOR for accounting services respecting the
sales tax savings program, an amount equal to one-sixth of the tax savings shall be paid to the
CONTRACTOR.
6.17 Use of Premises:
6.17.1 CONTRACTOR shall confine equipment, the storage of materials and equipment
and the operations of workers to the project site and areas identified in and permitted by the
Contract Documents and shall not unreasonably encumber the premises with equipment or other
materials. CONTRACTOR acknowledges that it must use CITY'S waste hauler franchisee for
waste hauling services. CONTRACTOR shall assume full responsibility for any damage to any
such land or area, or to the owner or occupant thereof or of any land or areas contiguous thereto,
resulting from the performance of the Work. Should any claim be made against CITY by any such
owner or occupant because of the performance of the Work, CONTRACTOR shall promptly
attempt to settle with such other party by agreement or otherwise resolve the claim. The general
indemnification provided elsewhere in this Contract specifically applies to claims arising out of
CONTRACTOR'S use of the premises.
6.17.2 During the progress of the Work, CONTRACTOR shall at all times keep the
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premises free from accumulations of waste materials, rubbish and other debris resulting from the
Work. At the completion of the Work CONTRACTOR shall remove all waste materials, rubbish
and debris from and about the premises as well as all tools, appliances, equipment and machinery,
and surplus materials, and shall leave the site clean and ready for occupancy by CITY.
CONTRACTOR shall restore to original condition all property not designated for alteration by the
Contract Documents.
6.17.3 CONTRACTOR shall not load nor permit any part of any structure to be loaded in
any manner that will endanger the structure, nor shall CONTRACTOR subject any part of the Work
or adjacent property to stresses or pressures that will endanger it.
6.18
Access to Work:
CONTRACTOR shall provide CITY, CITY'S consultants, representatives and
personnel, independent testing laboratories and governmental agencies with jurisdictional interests
with access to the work at reasonable times for their observation, inspection and testing.
CONTRACTOR shall provide them proper and safe conditions for such access and advise them of
CONTRACTOR'S site safety procedures and programs so that they may comply therewith.
6.19
Safety and Protection:
6.19.1 CONTRACTOR shall be responsible for initiating, maintaining and supervising all
safety precautions and programs in connection with the Work to prevent damage, injury or loss to
all employees on the work site and other persons and organizations who may be affected thereby;
all the Work and materials and equipment to be incorporated therein, whether in storage on or off
the site; and other property at the site or adjacent thereto.
6.19.2 CONTRACTOR shall comply with all applicable laws and regulations of any public
body having jurisdiction for the safety of persons or property or to protect them from damage,
injury or loss.
6.20
Indemnification:
GENERAL INDEMNIFICATION: The parties agree that one percent (1%) of the
total compensation paid to CONTRACTOR for the Work under this Agreement shall constitute
specific consideration to CONTRACTOR for the indemnification to be provided under this
Agreement. CONTRACTOR shall indemnifY, defend, save and hold harmless the CITY and the
CITY's elected officials, public employees, consultants and separate contractors, any of their
subcontractors, sub-subcontractors, agents and employees from and against claims, damages, losses
and expenses, including but not limited to attorneys' fees, arising out of or resulting from
performance of the Work. These indemnification obligations shall be limited to claims, damages,
losses or expenses (1) that are attributable to bodily injury, sickness, disease or death, or to injury to
or destruction of tangible property (other than the Work itself) including loss of use resulting
therefrom, and (2) to the extent such claims, damages, losses or expenses are caused in whole or in
part by negligent acts or omissions of the contractors, anyone directly or indirectly employed by
14
either or anyone for whose acts either may be liable, regardless of whether or not they are caused in
part by a party indemnified hereunder. Such obligation shall not be construed to negate, abridge or
otherwise reduce other rights or obligations of indemnity which would otherwise exist as to a party
or person described in this Article.
In claims against the CITY or its consultants and its contractors, their
subcontractors, sub-sub-contractors, agents or employees by an employee of the CONTRACTOR,
its contractors, anyone directly or indirectly employed by them or anyone for whose acts they may
be liable, the indemnification obligation under this Article 19.1 shall not be limited by a limitation
on amount or type of damages, compensation or benefits payable by or for the Cost, or a
CONTRACTOR's contractor, under workers' or workmen's compensation acts, disability benefits
acts or other employee benefit acts.
6.21 Patent and Copyright Indemnification: CONTRACTOR agrees to indemnifY,
defend, save and hold harmless the CITY, its officers, agents and employees, from all damages,
liabilities, losses, claims, fines and fees, and from any and all suits and actions of every name and
description that may be brought against CITY, its officers, agents and employees, on account of any
claims, fees, royalties, or costs for any invention or patent and/or for the infringement of any and all
copyrights or patent rights claimed by any person, firm, or corporation.
6.21.1 CONTRACTOR shall pay all claims, losses, liens, settlements or judgments of any
nature whatsoever in connection with the foregoing indemnifications including, but not limited to,
reasonable attorney's fees and costs.
6.21.2 CITY reserves the right to select its own legal counsel to conduct any defense in any
such proceeding and all costs and fees associated therewith including any costs or fees of an appeal
shall be the responsibility of CONTRACTOR under the indemnification agreement. Nothing
contained herein is intended nor shall it be construed to waive CITY'S rights and immunities under
the common law or Florida Statute 768.28 as amended from time to time. This obligation shall not
be construed to negate, abridge, or otherwise reduce any other right or obligation of indemnity
which would otherwise exist as to any party described in this Paragraph and its subparts.
6.22 Survival of Obligations:
All representations, indemnifications, warranties and guarantees made in, required
by, or given in accordance with this Agreement, as well as all continuing obligations indicated in
the Contract Documents, shall survive final payment, completion and acceptance of the work and
termination or completion of this Agreement.
6.23 Correction or Removal of Defective Work:.
If required by CITY, CONTRACTOR shall promptly, as directed, either correct all
defective Work, whether or not fabricated, installed or completed, or, if the Work has been rejected
by CITY, remove it from the site and replace it with non-defective Work. CONTRACTOR shall
bear all direct costs of such correction or removal (including but not limited to fees and charges of
engineers, architects and other professionals) made necessary thereby.
15
ARTICLE 7 - CITY'S RESPONSIBILITIES
7.1 CITY shall furnish data required of CITY under the Contract Documents promptly.
7.2 Except for permits and fees which are the responsibility of CONTRACTOR, CITY
shall secure necessary easements, assessments, and charges required for construction, use, or
occupancy of permanent structures or permanent changes in existing facilities.
7.3 If the Work is defective, or CONTRACTOR fails to supply sufficient skilled
workers or suitable materials or equipment, or fails to furnish or perform the Work in such a way
that the completed Work will conform to the Contract Documents, CITY may order
CONTRACTOR to stop the Work, or any portion thereof, until the cause for such order has been
eliminated; however, this right of CITY to stop the Work shall not give rise to any duty on the part
of CITY to exercise this right for the benefit of CONTRACTOR or any other party.
ARTICLE 8 - CITY MANAGER OR DESIGNEE'S RESPONSIBILITIES
8.1 City Manager will be CITY'S contact person during the construction period and
until final payment is due to CONTRACTOR.
8.2
Visits to Site:.
City Manager will make visits to the site at intervals appropriate to the various
stages of construction to observe the progress and quality of the executed work and to determine, in
general, if the Work is proceeding in accordance with the Contract Documents. Public Services
Director's efforts will be directed toward providing for CITY a greater degree of confidence that the
completed work will conform to the Contract Documents. On the basis of such visits and on-site
inspections, Public Services Director shall keep CITY informed of the progress of the work and
shall endeavor to guard CITY against defects and deficiencies in the work.
8.3
Technical Clarifications and Interpretations:
8.3.1 City Manager will issue, with reasonable promptness, such written
clarifications or interpretations of the technical requirements of the Contract Documents as Public
Services Director may determine necessary, which shall be consistent with or reasonably inferable
from the overall intent of the Contract Documents. Should CONTRACTOR fail to request
interpretation of questionable items in the Contract Documents neither CITY nor Public Services
Director will thereafter entertain any excuse for failure to execute the Work in a satisfactory
manner.
8.3.2 City Manager will interpret and decide matters concerning performance
under the requirements of the Contract Documents upon written request of either CITY or
CONTRACTOR. Public Services Director will make initial decisions on all claims, disputes or
other matters in question between CITY and CONTRACTOR. Written notice of each such claim,
dispute or other matter will be delivered by claimant to Public Services Director and the other party
but in no event later than ten (10) days after the occurrence of the event giving rise thereto, together
16
with written supporting data.
8.3.3 In the event CITY and CONTRACTOR disagree upon whether CONTRACTOR is
entitled to be paid for work required by CITY under 8.3.2, or in the event of any other
disagreements over the scope of Work included within the Guaranteed Maximum Price, CITY and
CONTRACTOR agree to negotiate in good faith to resolve the issue amicably. As part of the
negotiation process, CONTRACTOR shall furnish CITY with a good faith estimate of the costs to
perform the disputed work in accordance with CITY' interpretations. If the parties are unable to
agree, and CITY expects CONTRACTOR to perform the work in accordance with CITY's
interpretations, CONTRACTOR shall proceed to perform the disputed work, conditioned upon
CITY issuing a written order to CONTRACTOR director CONTRACTOR to proceed and
specifYing CITY's interpretation of the work that is to be performed. In such event,
CONTRACTOR shall be entitled to submit in its payment applications an amount equal to fifty
percent (50%) of its estimated cost to perform the work, and CITY agrees to pay such amounts,
with the express understanding that such payment by CITY does not prejudice CITY's right to argue
that it has no responsibility to pay for such work and that receipt of such payment by
CONTRACTOR does not prejudice CONTRACTOR's right to seek full payment of the disputed
work under the applicable terms of the Agreement in the event the CITY's order is deemed to be a
change to the Work.
8.4
Authorized Variations in Work:
City Manager may authorize minor variations in the Work from the technical
requirements of the Contract Documents which do not involve an adjustment in the Guaranteed
Maximum Price or the Contract Time and are consistent with the overall intent of the Contract
Documents. These may be accomplished by a Field Order and will be binding on CITY and on
CONTRACTOR who shall perform the work involved promptly. If the parties disagree as to
whether it is within the scope of the Work, the provisions of 8.3.3 shall apply.
8.5
Reiecting Defective Work:
If City Manager becomes aware of any fault or default in the Work, he shall give
proper written notice thereof to CONTRACTOR.
ARTICLE 9 - BUILDING DEPARTMENT'S RESPONSIBILITIES
9.1 Building Department inspectors will serve as CITY's representative regarding
inspection of the finished work herein as it pertains to compliance with the Florida Building Code,
and the CITY's Code of Ordinances.
ARTICLEI0-BONDSANDINSURANCE
10.1
Payment and Performance Bonds:
10.1.1 Within fifteen (15) calendar days after Notice of Award and in any event prior to
17
commencing work, the CONTRACTOR shall execute and furnish to CITY a performance bond
and a payment bond, each written by a corporate surety, having a resident agent in the State of
Florida and having been in business with a record of successful continuous operation for at least
five (5) years. The surety shall hold a current certificate of authority from the Secretary of Treasury
of the United States as an acceptable surety on federal bonds in accordance with United States
Department of Treasury Circular No. 570. If the amount of the Bond exceeds the underwriting
limitation set forth in the circular, in order to qualifY, the net retention of the surety company shall
not exceed the underwriting limitation in the circular and the excess risks must be protected by
coinsurance, reinsurance, or other methods, in accordance with Treasury Circular 297, revised
September 1,1978 (31 DFR, Section 223.10, Section 223.11). Further, the surety company shall
provide CITY with evidence satisfactory to CITY, that such excess risk has been protected in an
acceptable manner. The surety company shall have at least the following minimum qualification in
accordance with the latest edition of A.M. Best's Insurance Guide, published by Alfred M. Best
Company, Inc., Ambest Road, OIdwick, New Jersey 08858: A to A+.
10.1.2 Two (2) separate bonds are required and both must be approved by the CITY. The
penal sum stated in each bond shall be the amount equal to the total amount payable under the
terms of the contract. The performance bond shall be conditioned that the CONTRACTOR
perform the contract in the time and manner prescribed in the contract. The payment bond shall be
conditioned that the CONTRACTOR promptly make payments to all persons who supply the
CONTRACTOR with labor, materials and supplies used directly or indirectly by the
CONTRACTOR in the prosecution of the work provided for in the Contract and shall provide that
the surety shall pay the same in the amount not exceeding the sum provided in such bonds, together
with interest at the maximum rate allowed by law; and that they shall indemnifY and save harmless
the CITY to the extent of any and all payments in connection with the carrying out of said Contract
which the CITY may be required to make under the law.
10.1.3 Pursuant to the requirements of Section 255.05(1 )(a), Florida Statutes, it shall be the
duty of the CONTRACTOR to record the aforesaid payment and performance bonds in the public
records of Miami-Dade County, with the CONTRACTOR to pay all recording costs.
10.2
Bonds, Reduction After Final Payment:
Such bonds shall continue in effect for one (1) year after final payment becomes due
except as otherwise provided by law or regulation or by the Contract Documents with the final sum
of said bonds reduced after final payment to an amount equal to _L%) of the Guaranteed
Maximum Price, or an additional bond shall be conditioned that CONTRACTOR shall correct any
defective or faulty Work or material which appears within one (1) year after final completion of the
Contract, upon notification by the CITY.
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10.3 Duty to Substitute Surety:
If the surety on any Bond furnished by CONTRACTOR is declared bankrupt or
becomes insolvent or its right to do business is terminated in the State of Florida or it ceases to meet
the requirements of other applicable laws or regulations, CONTRACTOR shall within seven (7)
days thereafter substitute another bond and surety, both of which must be acceptable to CITY.
10.4 Insurance:
10.4.1 UPON EXECUTION OF THE CONTRACT, THE CONTRACTOR SHALL
SUBMIT CERTIFICATE(S) OF INSURANCE EVIDENCING THE REQUIRED
COVERAGES AND SPECIFICALLY PROVIDING THAT THE CITY OF SUNNY ISLES
BEACH IS AN ADDITIONAL NAMED INSURED RESPECT TO THE REQUIRED
COVERAGE AND THE OPERATIONS OF THE CONTRACTOR UNDER THE
CONTRACT. The certificates of insurance shall not only name the types of policies provided, but
shall also specifically refer to this Agreement and shall state that such insurance is as required by
Article 9 and its subparts of this Agreement. CONTRACTOR shall not commence work under this
Agreement until after CONTRACTOR has obtained all of the minimum insurance herein described
and the policies of such insurance detailing the provisions of coverage have been received and
approved by CITY. CONTRACTOR shall not permit any subcontractor to begin work until after
similar minimum insurance to cover subcontractor has been obtained and approved. In the event
the insurance certificate provided indicates that the insurance shall terminate and lapse during the
term of this Agreement, then in that event, CONTRACTOR shall furnish, at least thirty (30)
calendar days prior to expiration of the date of such insurance, a renewed certificate of insurance as
proof that equal and like coverage and extension thereunder is in effect. CONTRACTOR shall not
continue to perform the services required by this Agreement unless all required insurance remains
in full force and effect.
10.4.2 Insurance Companies selected must be acceptable the CITY. All of the policies of
insurance so required to be purchased and maintained shall contain a provision or endorsement that
the coverage afforded shall not be canceled, materially changed or renewal refused until at least
thirty (30) calendar days written notice has been given to CITY by certified mail.
10.4.3 The CONTRACTOR shall procure and maintain at its own expense and keep in
effect during the full term of the Contract a policy or policies of insurance which must include the
following coverage and minimum limits of liability:
10.4.3.1 Professional Liability (Errors and Omissions) Insurance for
architectural and engineering services and the services of any other professional used in the
performance of the work of this Agreement in the amount of $1,000,000.00 with a deductible (if
applicable) not to exceed $5,000.00 per claim. The certificate of insurance for professional liability
shall reference any applicable deductible and the work of this Agreement.
10.4.3.2 Worker's Compensation Insurance for statutory obligations imposed
by Worker's Compensation or Occupational Disease Laws, including, where applicable, the United
19
States Longshoremen's and Harbor Worker's Act, the Federal Employers' Liability Act and the
Homes Act. Employer's Liability Insurance shall be provided with a minimum of One Hundred
Thousand and xx/IOO dollars ($100,000.00) per accident. CONTRACTOR agrees to be
responsible for the employment, conduct and control of its employees and for any injury sustained
by such employees in the course of their employment.
10.4.3.3 Comprehensive Automobile Liability Insurance for all owned, non-
owned and hired automobiles and other vehicles used by the CONTRACTOR in the performance
of the work with the following minimum limits of liability:
$1,000,000.00
Combined Single Limit, Bodily Injury and Property
Damage Liability, per occurrence
10.4.3.4 Comprehensive General Liability Insurance (occurrence form) with
the following minimum limits of liability:
$1,000,000.00 Combined Single Limit, Bodily Injury and Property
Damage Liability, per occurrence
Coverage must be offered in a form no more restrictive than the latest
edition of the Comprehensive General Liability Policy without restrictive endorsements, as filed by
the Insurance Services Office and shall specifically include the following with minimum limits not
less than those required for Bodily Injury Liability and Property Damage Liability:
10.4.3.4.1
Premises and Operations;
10.4.3.4.2
Independent Contractors;
10.4.3.4.3
Product and Completed Operations Liability;
10.4.3.4.4
Broad Form Property Damage;
10.4.3.4.5
Broad Form Contractual Coverage applicable
to the Contract and specifically confirming the
indemnification and hold harmless agreement in this
Contract; and
10.4.3.4.6
Personal Injury coverage with employment
contractual exclusions removed and deleted.
10.4.3.4.7
Explosion, collapse, underground coverage
(XC-U)
10.4.3.5 Builder's Risk Insurance in an amount not less than THE
REPLACEMENT COST for the construction of the work. Coverage shall be "All Risk" coverage
for one hundred percent (100%) of the completed value with a deductible of not more than five
20
thousand and 001l 00 dollars ($5,000.00) per claim.
10.4.4 CONTRACTOR shall maintain the Products/Completed Operations Liability
Insurance for a period of at least three (3) years after final payment for the Work and furnish CITY
with evidence of continuation of such insurance at final payment.
10.4.5 The required insurance coverage shall be issued by an insurance company
authorized and licensed to do business in the State of Florida, with the following minimum rating of
B+ to A+, in accordance with the latest edition of AM. Best's Insurance Guide.
10.4.6 All required insurance policies shall preclude any underwriter's rights of recovery or
subrogation against CITY with the express intention of the parties being that the required insurance
coverage protect both parties as the primary coverage for any and all losses covered by the above
described insurance.
10.4.7 The CONTRACTOR shall ensure that any company issuing insurance to cover the
requirements contained in this Contract agrees that they shall have no recourse against CITY for
payment or assessments in any form on any policy of insurance.
10.4.8 The clauses "Other Insurance Provisions" and "Insurers Duties in the Event of an
Occurrence, Claim or Suit" as it appears in any policy of insurance in which CITY is named as an
additional named insured shall not apply to CITY. CITY shall provide written notice of occurrence
within fifteen (15) working days of CITY's actual notice of such an event.
10.4.9 The CONTRACTOR shall not commence performance of its obligations under this
Agreement until after it has obtained all of the minimum insurance herein described and the same
has been approved.
1O.4.10All required insurance policies shall preclude any underwriter's rights of recovery or
subrogation against CITY with the express intention of the parties being that the required insurance
coverages protect both parties as the primary coverages for any and all losses covered by the above
described insurance.
10.4.11 The CONTRACTOR agrees to perform the work under the Contract as an
independent CONTRACTOR, and not as a sub-contractor, agent or employee of CITY.
1 0.4. 12 CONTRACTOR shall require each of its subcontractors of any tier to maintain the
insurance required herein for each category, and CONTRACTOR shall provide verification thereof
to CITY upon request of CITY.
10.4.13 Violation of the terms of this Article and its subparts shall constitute a breach of the
Contract and CITY, at its sole discretion, may cancel the Contract and all rights, title and interest of
the CONTRACTOR shall thereupon cease and terminate.
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10.5
CITY'S Liability and Insurance:
CITY shall not be responsible for purchasing and maintaining any insurance to
protect the interests of CONTRACTOR, subcontractors or others on the Work. CITY specifically
reserves all statutory and common law rights and immunities and nothing herein is intended to limit
or waive same including, but not limited to, the procedural and substantive provisions of Section
768.28, Florida Statutes and Section 95.11, Florida Statutes.
ARTICLE 11 - W ARRANTIES~ TESTS AND INSPECTIONS~ CORRECTION OF
DEFECTIVE WORK
11.1
Warranty of Title:
The CONTRACTOR warrants to the CITY that it possesses good, clear and
marketable title to all equipment and materials provided hereunder and there are no pending liens,
claims or encumbrances whatsoever against said equipment and materials.
11.2
Warranty of Specifications:
The CONTRACTOR warrants that all equipment, materials and workmanship
furnished, whether furnished by the CONTRACTOR or its sub-contractors and suppliers, will
comply with the specifications, drawings and other descriptions supplied or adopted and that all
services will be performed in a workmanlike manner.
11.3
Warrantv of Merchantability:
CONTRACTOR warrants that any and all equipment to be supplied pursuant to the
Agreement is merchantable, free from defects, whether patent or latent in material or workmanship
and fit for the ordinary purposes for which it is intended.
11.4
Correction Period:
CONTRACTOR warrants all material and workmanship for a minimum of one (1)
year from the date that CITY accepts occupancy of the parking garage and park. If within one (1)
year after the date of final completion or such longer period of time as may be prescribed by laws or
regulations or by the terms of any applicable special guarantee required by the Contract Documents,
any work is found to be defective, whether observed before or after acceptance by CITY,
CONTRACTOR shall promptly, without cost to CITY and in accordance with CITY'S written
instructions, either correct such defective work, or, if it has been rejected by CITY, remove it from
the site and replace it with work that is not defective and satisfactorily correct and remove and
replace any damage to other work or the work of others resulting therefrom. If CONTRACTOR
does not promptly comply with the terms of such instructions, or in an emergency where delay
would cause serious risk of loss or damage, CITY may have the defective workmanship corrected
or the rejected Work removed and replaced, and all direct, indirect and consequential costs of such
removal and replacement (including but not limited to fees and charges of engineers, architects,
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attorneys and other professionals) will be paid by CONTRACTOR.
11.4.1 Where defective Work (and damage to other work resulting therefrom) has been
corrected, removed or replaced under this paragraph, the correction period hereunder with respect to
such Work will be extended for an additional period of one (1) year after such correction or
removal and replacement has been satisfactorily completed.
11.4.2 Nothing contained in this Article shall be construed to establish a period of
limitation with respect to other obligations which CONTRACTOR might have under the Contract
Documents. Establishment of the time period of one (1) year as described in Paragraph 10.4.1
relates only to the specific obligation of the CONTRACTOR to correct the work, and has no
relationship to the time within which the obligation to comply with the Contract Documents may be
sought to be enforced, nor to the time within which proceedings may be commenced to establish
CONTRACTOR'S liability with respect to the CONTRACTOR'S obligation other than specifically
to correct the work.
11.4.3 CONTRACTOR warrants to the CITY that it will comply with all applicable
federal, state and local laws, regulations and orders in carrying out its obligations under the
Contract.
11.4.4 CONTRACTOR warrants to the CITY that it is not insolvent, it is not in bankruptcy
proceedings or receivership, nor is it engaged in or threatened with any litigation, arbitration or
other legal or administrative proceedings or investigations of any kind which would have an
adverse effect on its ability to perform its obligations under the Contract.
11.4.5 CONTRACTOR warrants to the CITY that the consummation of the work provided
for in the Contract Documents will not result in the breach of any term or provision of, or constitute
a default under any indenture, mortgage, contract, or agreement to which the CONTRACTOR is a
party.
11.4.6 CONTRACTOR warrants that there has been no violation or copyrights of patent
rights either in the United States of America or in foreign countries in connection with the work of
the Contract.
11.4.7 No warranty, either express or implied, may be modified, excluded or disclaimed in
any way by CONTRACTOR. All warranties shall remain in full force and effect, notwithstanding
acceptance and payment by CITY.
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11.5 Tests and Inspections:
11.5.1 CONTRACTOR shall give CITY timely notice of readiness of the work for all
required inspections, tests or approvals. CONTRACTOR shall assume full responsibility, pay all
costs in connection therewith and furnish CITY the required certificates of inspection, testing or
approval for all materials, equipment or the Work or any part thereof unless otherwise specified
herein.
11.5.2 Inspectors shall have no authority to permit deviations from nor to relax any of the
provisions of the Contract Documents, nor to delay the Agreement by failure to inspect the
materials and work with reasonable promptness.
11.5.3 The payment of any compensation whatever may be its character or form, or the
giving of any gratuity or the granting of any favor by the CONTRACTOR to any inspectors,
directly or indirectly is strictly prohibited and any such action on the part of the CONTRACTOR
will constitute a breach of this Agreement.
ARTICLE 12 - CONTRACT TIME
12.1
Change of Contract Time:
ALL TIME LIMITS STATED IN THE CONTRACT DOCUMENTS ARE OF
THE ESSENCE OF THE AGREEMENT. EXCEPT AS PROVIDED HEREIN, NO CLAIM
FOR DAMAGES OR ANY CLAIM OTHER THAN FOR AN EXTENSION OF TIME
SHALL BE MADE OR ASSERTED AGAINST THE CITY BY REASON OF ANY
DELA YS. CONTRACTOR shall not be entitled to an increase in the construction cost or payment
or compensation of any kind from CITY for direct, indirect, consequential, impact or other costs,
expenses or damages including but no limited to costs of acceleration or inefficiency, arising
because of delay, disruption, interference or hindrance from any cause whatsoever, whether such
delay, disruption, interference be reasonable or unreasonable, foreseeable or unforeseeable, or
avoidable or unavoidable; provided, however, that this provision shall not preclude recovery of
damages by CONTRACTOR for hindrances or delays due solely to fraud, bad faith or active
interference on the part of CITY or its agents. In addition, if CONTRACTOR is delayed at any
time in the progress of the Work by an act or neglect of the CITY's employees, or by changes
ordered in the Work, or by delay authorized by the CITY pending arbitration, then the Contract
Time shall be reasonably extended by Change Order. Furthermore, if CONTRACTOR is delayed at
any time in the progress of the Work by labor disputes, fire, unusual delay in deliveries, adverse
weather conditions not reasonably anticipated, unavoidable casualties or other causes beyond the
CONTRACTOR's control, or by other causes which the CITY and CONTRACTOR agree may
justifY delay, then the Contract Time shall be reasonably extended by Change Order. Otherwise,
CONTRACTOR shall be entitled only to extensions of the Contract Time as the sole and exclusive
remedy for such resulting delay, in accordance with and to that extent specifically provided above.
No extension of time shall be granted for delays resulting from normal weather conditions
prevailing in the area as defined by the average of the last ten (10) years of weather data as recorded
by the United States Department of Commerce, National Oceanic and Atmospheric Administration
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1-
at it's Weather Station located in Miami-Dade County.
12.2 No Recovery for Early Completion. If the CONTRACTOR submits a schedule or
expresses an intention to complete the Work earlier than any required milestone or completion date,
the CITY shall not be liable to the CONTRACTOR for any costs incurred because of delay or
hindrance should the CONTRACTOR be unable to complete the Work before such milestone or
completion date. The duties, obligations and warranties of the CITY to the CONTRACTOR shall
be consistent with and applicable only to the completion of the Work and completion dates set forth
in this Agreement.
12.3 Liquidated Damages
Upon failure of CONTRACTOR to complete the Work within the time specified for
completion (plus approved extensions if any), CONTRACTOR shall pay to CITY the sum of Two
Thousand Five Hundred dollars ($2500.00) for each and every calendar day that the completion of
the Work is delayed beyond the time specified in this Agreement for completion, as fixed and
agreed liquidated damages and not as a penalty. Liquidated damages are hereby fixed and agreed
upon between the parties, recognizing the impossibility of precisely ascertaining the amount of
damages that will be sustained by CITY as a consequence of such delay and both parties desiring to
obviate any question of dispute concerning the amount of said damages and the cost and effect of
the failure of CONTRACTOR to complete the Contract on time. Regardless of whether or not a
single Contract is involved, the above-stated liquidated damages shall apply separately to each
portion of the Work for which a time of completion is given. CITY shall have the right to deduct
from and retain out of moneys which may be then due or which may become due and payable to
CONTRACTOR, the amount of such liquidated damages and if the amount retained by CITY is
insufficient to pay in full such liquidated damages, the CONTRACTOR shall pay in full such
liquidated damages.
ARTICLE 13 - CHANGES IN THE WORK
13.1 CITY, without invalidating this Agreement, may order additions, deletions or
revisions to the Work. Such additions, deletions or revisions shall be authorized by a Written
Amendment, Change Order or Work Directive Change.
13.2 All Change Orders which, individually or when cumulatively increase the cost of
the work to CITY, or which extend the time for completion, must be formally authorized and
approved by the City Commission prior to their issuance and before work may begin. No claim
against CITY for extra work in furtherance of such Change Order shall be allowed unless prior
approval has been obtained.
13.3 The Guaranteed Maximum Price and Contract Time shall be changed only by
Change Order or Written Amendment approved by the City Commission.
13.4 Proposed Change Orders shall be prepared by the CONTRACTOR.
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13.5 If CITY and CONTRACTOR are unable to agree as to the extent, if any, of an
adjustment in the Guaranteed Maximum Price or an adjustment of the Contract times that should be
allowed as a result of a Work Change Directive, a claim may be made therefor.
13.6 CONTRACTOR shall not be entitled to an increase in the Guaranteed Maximum
Price or an extension of the Contract Time with respect to any work performed that is not required
by the Contract Documents as amended, modified and supplemented.
13.7 If notice of any change affecting the general scope of the work or the provisions of
the Contract Documents is required by the provisions of any bond to be given to a surety, the giving
of any such notice will be CONTRACTOR'S responsibility and the amount of each applicable bond
shall be adjusted accordingly.
13.8 Any claim for adjustment in the Guaranteed Maximum Price or time shall be based
upon written notice delivered by the party making the claim to the other parties and to Public
Services Director not later than ten (10) business days after the occurrence or event giving rise to
the claims and stating the general nature of the claim. No claim for an adjustment in the
Guaranteed Maximum Price or an extension of the contract time will be valid if not submitted in
accordance with this Paragraph.
13.9 The cost or credit to CITY from a change in the Work shall be determined in
accordance with the provisions hereof.
13.10 If conditions are encountered which are subsurface or otherwise concealed physical
conditions which differ materially from those indicated in the Contract Documents,
CONTRACTOR shall notifY CITY immediately. The CONTRACTOR shall promptly investigate
such conditions and, if they differ materially and cause an increase or decrease in the Contractor's
cost of or time required for performance of any part of the work, CONTRACTOR shall recommend
an equitable adjustment in the Guaranteed Maximum Price or Contract Time or both and submit
said documentation for approval by CITY.
ARTICLE 14 - CHANGE IN GUARANTEED MAXIMUM PRICE
14.1 The Guaranteed Maximum Price constitutes the total compensation (subject to
authorized adjustments) payable to CONTRACTOR for performing the Work. All duties,
responsibilities and obligations assigned to or undertaken by CONTRACTOR shall be at his
expense without change in the Guaranteed Maximum Price.
14.2 The Guaranteed Maximum Price may only be changed by a Change Order or by a
Written Amendment. Any claim for an increase or decrease in the Guaranteed Maximum Price
shall be based on written notice delivered to Public Services Director promptly (but in no event
later than ten (10) days) after the occurrence of the event giving rise to the amount of the claim with
supporting data shall be delivered within twenty (20) days and shall be accompanied by claimant's
written statement that the amount claimed covers all known amounts (direct, indirect and
26
consequential) to which the claimant is entitled as a result of the occurrence of said event. No
resolution of a claim for adjustment in the Guaranteed Maximum Price shall be effective until
approved by the City Commission. No claim for an adjustment in the Guaranteed Maximum Price
will be valid if not submitted in accordance with this Paragraph.
14.3 The value of any Work covered by a Change Order or of any claim for an increase
or decrease in the Guaranteed Maximum Price shall be determined in one of the following ways:
14.3.1 Where the Work involved is covered by unit prices contained in the Contract
Documents, by application of unit prices to the quantities of the items involved.
14.3.2 By mutual acceptance ofa lump sum (which may include an allowance for overhead
and profit including any subcontractor fees). If the negotiated lump sum change order exceeds the
percentages set forth for "Cost of Work," it must be accompanied by a detailed explanation
justifYing the increase.
14.3
Cost Breakdown Required:
Whenever the cost of any Work is to be determined pursuant to Paragraphs 13.4 or
13.5, CONTRACTOR will submit in form acceptable to Public Services Director an itemized cost
breakdown together with supporting data. Whenever a change in the work is to be based upon
mutual acceptance of a lump sum, whether the amount is an addition, credit, or no-change-in-cost,
the CONTRACTOR shall submit an estimate substantiated by a complete itemized breakdown:
14.3.1 The breakdown shall list quantities and unit prices for materials, labor,
equipment and other items of cost.
ARTICLE 15 - PAYMENTS TO CONTRACTOR AND COMPLETION OF WORK
15.1
Progress Payments:
15.1.1 CONTRACTOR may requisition payments for Work completed during the project
at intervals of not more than once a month. The CONTRACTOR'S requisition shall show a
complete breakdown of the project components, the quantities completed and the amount due,
together with a certification by the CONTRACTOR that the CONTRACTOR has disbursed to all
subcontractors and suppliers their pro-rata shares of the payment out of previous progress payments
received by the CONTRACTOR for all work completed and materials furnished in the previous
period or properly executed releases of liens by all subcontractors, suppliers and materialmen who
were included in the CONTRACTOR'S previous applications for payment, and any other
supporting documentation as may be required by the Public Services Director or Contract
Documents. Each requisition shall be submitted in triplicate to the Public Services Director for
approval; CITY shall have fifteen (15) days to approve or disapprove the requisition. If the
requisition is not approved, the reasons therefor shall be stated with particularity. The CITY shall
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make payment to the CONTRACTOR within fifteen (15) calendar days after approval by the Public
Services Director of the CONTRACTOR'S requisition for payment.
15.1.2 Ten percent (10%) of all monies earned by the CONTRACTOR shall be retained by
the CITY until the Work is completed in accordance with the requirements of the Contract
Documents and accepted by the CITY as provided herein.
15.2
Final Inspection:
Upon written notice from CONTRACTOR that the entire Work or an agreed
portion thereof is complete, CITY will make a final inspection and will notifY CONTRACTOR in
writing of all particulars in which this inspection reveals that the Work is not in accordance with the
Contract Documents. CONTRACTOR shall immediately take such measures as are necessary to
remedy such deficiencies.
15.3
Final Application for Payment:
After CONTRACTOR has completed all such corrections to the satisfaction of
Public Services Director and delivered all maintenance and operating instructions, schedules,
guarantees, bonds, certificates of inspection and other documents required by the Contract
Documents, and after Public Services Director has indicated that the work is acceptable,
CONTRACTOR may make application for final payment. The final application for payment shall
be accompanied by (1) complete and legally effective releases or waivers of all liens arising out of
or filed in connection with the work; or (2) CONTRACTOR'S receipts in full covering all labor,
materials and equipment for which a lien could be filed; or (3) a final affidavit stating that all
laborers, materialmen, suppliers and subcontractors who worked for CONTRACTOR under this
Contract have been paid in full or if the fact be otherwise, identifYing the name of each lienor who
has not been paid in full and the amount due or to become due each for labor, services or materials
furnished. If any subcontractor or supplier fails to furnish a release or receipt in full,
CONTRACTOR may furnish a bond satisfactory to CITY to indemnifY CITY against any lien.
CONTRACTOR shall submit to CITY within forty-five days (45) of the date of
issuance of the certificate of occupancy for the applicable portion of the Work the completed set of
"As-Built" drawings relative to the parking garage and park for review and approval. The "As-
Built" drawings shall be prepared, sealed and certified by the appropriate professional licensed by
the State of Florida. Prior to approval, if necessary, the drawings may be returned to
CONTRACTOR for changes or modifications if in the opinion of Public Services Director they do
not represent correct or accurate "As-built" drawings.
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15.4
Final Payment and Acceptance:
15.4.1 If, on the basis of Public Services Director's observation of the Work during
construction and final inspection, and Public Services Director's review of the final Application for
Payment and accompanying documentation, Public Services Director is satisfied that the Work has
been completed in accordance with the Contract Documents and CONTRACTOR'S other
obligations under the Contract Documents have been fulfilled, Public Services Director will, within
ten (10) days after receipt of the final Application for Payment, indicate in writing Public Services
Director's recommendation of payment and present the Application to CITY for payment.
Thereupon Public Services Director will give written notice to CITY and CONTRACTOR that the
Work is acceptable. Otherwise, Public Services Director will return the Application to
CONTRACTOR, indicating in writing the reasons for refusing to recommend final payment, in
which case CONTRACTOR shall make the necessary corrections and resubmit the Application.
Fifteen (15) days after presentation to CITY of the Application and accompanying documentation,
in appropriate form and substance, and with engineer's recommendation and notice of acceptability,
the amount recommended by Public Services Director will become due and will be paid by CITY to
CONTRACTOR. Payment shall be wire transferred as set forth above.
15.4.2 If, through no fault of CONTRACTOR, final completion of the Work is
significantly delayed and if Public Services Director so confirms, CITY shall, upon receipt of
CONTRACTOR'S final Application for Payment and recommendation of Public Services Director,
and without terminating the Agreement, make payment of the balance due for that portion of the
Work fully completed and accepted. If the remaining balance to be held by CITY for Work not
fully completed or corrected is less than the retainage stipulated in the Agreement, and if bonds
have been furnished as required, the written consent of the surety to the payment of the balance due
for that portion of the Work fully completed and accepted shall be submitted by CONTRACTOR to
Public Services Director with the Application for such payment. Such payment shall be made
under the terms and conditions governing final payment, except that it shall not constitute a waiver
of claims.
15.5 Final payment. Final payment, constituting the entire unpaid balance of the
Guaranteed Maximum Price, shall be paid by the CITY to the CONTRACTOR when the Work has
been completed in accordance with the Contract Documents, this Agreement fully performed, and a
final certificate for payment has been issued by the Public Services Director. The making of final
payment shall constitute a waiver of claims by CITY except those arising from:
15.5.1 Liens, claims, security interests or encumbrances arising out of this Agreement and
unsettled.
15.5.2 Faulty or defective work and latent defects discovered after acceptance.
15.5.3 Failure of the work to comply with the requirements of the Contract Documents.
15.5.4 Terms of special warranties required by the Contract Documents.
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15.5.5 Any of CONTRACTOR'S continuing obligations under this Agreement.
The acceptance of final payment by CONTRACTOR or the Subcontractor for
materials and supplies shall constitute a waiver of claims by that payee except those previously
made in writing and identified by payee as unsettled at the time of final application for payment.
15.6 CITY'S Right to Withhold Payment:
The CITY may withhold in whole or in part, final payment or any progress payment
to such extent as may be necessary to protect itself from loss on account of:
15.6.1 Defective work not remedied.
15.6.2 Claims filed or reasonable evidence indicating the probable filing of claims by other
parties against the CONTRACTOR.
15.6.3 Failure of the CONTRACTOR to make payment to Subcontractors or Suppliers for
materials or labor.
15.6.4 Damage to another contractor not remedied.
15.6.5 Liability for liquidated damages has been incurred by the CONTRACTOR.
15.6.6 Reasonable evidence that the work cannot be completed for the unpaid balance of
the contract sum.
15.6.7 Reasonable evidence that the work will not be completed within the Contract time.
15.6.8 Failure to carry out the work in accordance with the Contract Documents.
When the above grounds are removed or resolved or the CONTRACTOR provides a surety
bond or a consent of surety satisfactory to the CITY which will protect the CITY in the amount
withheld, payment may be made in whole or in part.
ARTICLE 16 - TERMINATION OF THE CONTRACT
16.1
CITY'S Right to Terminate:
Upon the occurrence of any one or more of the following events:
16.1.1 If CONTRACTOR commences a voluntary case under any chapter of the
Bankruptcy Code as now or hereafter in effect, or if CONTRACTOR takes any equivalent or
similar action by filing a petition or otherwise under any other federal or state law in effect at such
time relating to the bankruptcy or insolvency.
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16.1.2 If a petition is filed against CONTRACTOR under any chapter of the Bankruptcy
Code as now or hereafter in effect at the time of filing, or if a petition is filed seeking any such
equivalent or similar relief against CONTRACTOR under any other federal or state law in effect at
the time relating to bankruptcy or insolvency.
16.1.3 If CONTRACTOR makes a general assignment for the benefit of creditors.
16.1.4 If a trustee, receiver, custodian or agent of CONTRACTOR is appointed under
applicable law or under Contract, whose appointment or authority to take charge of property of
CONTRACTOR is for the purpose of enforcing a Lien against such property or for the purpose of
general administration of such property for the benefit of CONTRACTOR'S creditors.
16.1.5 If CONTRACTOR admits in writing an inability to pay its debts generally as they
become due.
16.1.6 If CONTRACTOR persistently fails to perform the Work in accordance with the
Contract Documents (including but not limited to, failure to supply sufficient skilled Workers or
suitable materials or equipment or failure to adhere to the progress schedule as same may be revised
from time to time).
16.1.7 If CONTRACTOR disregards laws or regulations of any public body having
jurisdiction.
16.1.8 If CONTRACTOR otherwise violates in any substantial way any provisions of the
Contract Documents.
CITY may, after giving CONTRACTOR seven (7) days written notice and to the extent permitted
by laws and regulations, terminate the services of CONTRACTOR, exclude CONTRACTOR from
the site and take possession of the Work and of all CONTRACTOR'S tools, appliances,
construction equipment and machinery at the site and use the same to full extent they could be used
by CONTRACTOR (without liability to CONTRACTOR for trespass or conversion), incorporate
in the Work all materials and equipment stored at the site or for which CITY has paid
CONTRACTOR but which are stored elsewhere, and finish the Work as CITY may deem
expedient. In such case CONTRACTOR shall not be entitled to receive any further payment until
the Work is finished.
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I
16.2
Termination for Convenience of CITY:
16.2.1 Upon seven (7) days written notice to CONTRACTOR, CITY may, without
cause and without prejudice to any other right or remedy, terminate this agreement for CITY'S
convenience whenever CITY determines that such termination is in the best interests of CITY.
Where the agreement is terminated for the convenience of CITY, the notice of termination to
CONTRACTOR must state that the Contract is being terminated for the convenience CITY under
the termination clause, the effective date of the termination and the extent of termination. Upon
receipt of the notice of termination for convenience, CONTRACTOR shall promptly discontinue all
Work at the time and to the extent indicated on the notice of termination, terminate all outstanding
Subcontractors and purchase orders to the extent that they relate to the terminated portion of the
Contract, and refrain from placing further orders and Subcontracts. Except as set forth below,
CONTRACTOR shall not be paid on account of loss of anticipated profits or revenue or other
economic loss arising out of or resulting from such termination.
In such event, CITY shall pay CONTRACTOR for (i) all Work executed and for proven
loss, cost or expense in connection with the Work, (ii) reasonable costs and expenses attributable to
such termination, including demobilization costs and amounts due in settlement of terminated
contracts with Subcontractors and design professionals, and (iii) fair and reasonable sums for
overhead and profit on items (i) and (ii) above.
16.2.2 In the event CITY terminates the Agreement pursuant to 16.2.1 above and proceeds
to design and construct the Project through its employees, agents or third parties, CONTRACTOR
shall grant CITY a limited license to use the Specifications and Drawings to complete the Project,
conditioned on the following:
(a) Use by CITY of the work product is at CITY's sole risk and without liability or legal
exposure to CONTRACTOR. To the fullest extent permitted by law, CITY does
hereby waive all rights and claims it may have against CONTRACTOR if it
terminates this Agreement but elects to use the Drawings and Specifications.
Subject to limits imposed by law, CITY shall defend, indemnifY and hold harmless
the CONTRACTOR from any and all claims, damages, losses and expenses,
including attorneys' fees arising out of or resulting from the Specifications and
Drawings.
(b) CONTRACTOR is paid by CITY all monies due under paragraph 16.2.1 above.
(c) Such limited license shall not be granted in the event CITY terminates the
Agreement after abandoning the Project.
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16.3
Termination by CONTRACTOR:
If CITY fails to make payment thereon for a period of sixty (60) calendar days,
CONTRACTOR may, upon thirty (30) additional days written notice to CITY, terminate the
Contract and recover from the Contract payment for work executed and for proven loss with respect
to materials, equipment, tools and construction equipment and machinery.
16.4
Mediation
16.4.1 Binding Decision. Unless the parties agree in writing at the conclusion of the mediation, any
decision reached under this section 16.4 shall not be final and binding upon the parties participating
in it. Unless otherwise agreed in writing, the parties shall continue and proceed diligently to
complete portions of the Project not affected by the claim(s) during dispute resolution proceedings.
16.4.2 Scope of Dispute Review. Any controversy or claim arising out of or relating to this
Agreement or any breach of it shall be, at the election of either party, subject to review under these
dispute resolution procedures.
16.4.3 Mediator. At the election of either party, the parties agree that any dispute or claim arising
out of or relating to performance of this Agreement shall be submitted to a mediator jointly selected
by City and Contractor.
16.4.4 Time of Claim. Claims must be brought within the applicable statute of limitations by
notice of a claim to the other party or parties affected thereby. Failure to bring the claim within the
specified time shall constitute a waiver of the party's right to assert the claim. The statute of
limitations shall be tolled during the mediation process. The notice of claim shall provide
reasonably sufficient detail of the nature of the claim and the basis for it. The mediator shall be
selected by the parties within twenty (20) days following the date that a party requests that the
selection process commence. Each mediation hearing shall be held at a location mutually approved
by the parties. Unless the parties otherwise agree in writing, mediation may be commenced on or
after the thirtieth (30th) calendar day after the mediator is selected. Each party agrees that it will
designate a representative, having authority to bind that party, who will attend all mediation
hearings. Both parties shall endeavor, in good faith, to reach a resolution of the claim during the
mediation. The mediator shall submit a sworn affidavit to both parties indicating that the mediator
has no past or present affiliation with either the CONTRACTOR or the CITY. 16.4.5 If the
parties cannot agree on the production of documents or exchange of other information (including
rules relating thereto), then the mediator shall make a determination as to the scope and nature of
the exchange at the initial hearing or at such later time as a party may request, but in no event later
than fifteen days before the mediation.
16.4.6 Proceeding Costs and Fees. All parties participating in the mediation shall be responsible
for their own costs, expenses and attorney fees necessary to pursue or defend against claim(s) raised
under these provisions; however, the parties shall equally share the costs of any meeting or hearing
place and the fees of the mediator.
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16.4.7 Enforceability and Form of Decision. The decision resulting from mediation is not binding
on any party participating in the mediation unless and until the parties agree to it in writing. If any
party is not satisfied with the outcome of the mediation, it must convey a written notice to the other
party or parties within ten (10) calendar days.
16.4.8 Litigation. If informal settlement discussions are unsuccessful, and the parties cannot reach
an agreement through mediation with respect to a claim or dispute, the parties agree that thereafter
the dispute or claim shall be resolved by litigation.
ARTICLE 17 - NOTICE. COMPUTATION OF TIME ARTICLE
17.1
Giving Notice:
All notices required by any of the Contract Documents shall be in writing and shall
be deemed delivered upon mailing by certified mail, return receipt requested to the following:
CONTRACTOR:
4M Investors, LLC
3211 Ponce De Leon Blvd., Suite 301
Coral Gables, FL 33134
COpy TO:
Weiss, Serota, Helfman, Pastoriza, Cole, et al.
Attn: Clifford Schulman, Esq.
3211 Ponce de Leon Boulevard
Coral Gables, Florida 33134
Fax No. (305) 854-2323
CITY:
Rick Conner, CITY Manager
City of Sunny Isles Beach
18070 Collins Avenue
Sunny Isles Beach, Florida 33160
COPY TO:
Hans Ottinot, City Attorney
City of Sunny Isles Beach
18070 Collins Avenue
Sunny Isles Beach, Florida 33160
34
17.2 Computation of Time:
When any period of time is referred to in the Contract Documents by days, it will be
computed to exclude the first and include the last day of such period. If the last day of any such
period falls on a Saturday or Sunday or on a day made a legal holiday by the law of the applicable
jurisdiction, such day will be omitted from the computation. A calendar day of twenty four (24)
hours measured from midnight to the next midnight shall constitute a day.
ARTICLE 18 - MISCELLANEOUS
18.1 The duties and obligations imposed by the Contract Documents and the rights and
remedies available hereunder to the parties hereto, and, in particular but without limitation, the
warranties, guaranties and obligations imposed upon CONTRACTOR and all of the rights and
remedies available to CITY thereunder, are in addition to, and are not to be construed in any way as
a limitation of, any rights and remedies available to any or all of them which are otherwise imposed
or available to any or all of them which are otherwise imposed or available by laws or regulations,
by special warranty or guarantee or by other provisions of the Contract Documents, and the
provisions of this Paragraph will be as effective as if repeated specifically in the Contract
Documents, and the provisions of this Paragraph will survive final payment and termination or
completion of the Agreement.
18.2 CONTRACTOR shall not assign or transfer the Contract or its rights, title or
interests therein without CITY'S prior written approval. The obligations undertaken by
CONTRACTOR pursuant to the Contract shall not be delegated or assigned to any other person or
firm unless CITY shall first consent in writing to the assignment. Violation of the terms of this
Paragraph shall constitute a breach of Contract by CONTRACTOR and the CITY may, at its
discretion, cancel the Contract and all rights, title and interest of CONTRACTOR shall thereupon
cease and terminate.
18.3 CONTRACTOR and its employees, volunteers and agents shall be and remain an
independent contractors and not agents or employees of CITY with respect to all of the acts and
services performed by and under the terms of this Agreement. This Agreement shall not in any way
be construed to create a partnership, association or any other kind of joint undertaking or venture
between the parties hereto.
18.4 The remedies expressly provided in this Agreement to CITY shall not be deemed to
be exclusive but shall be cumulative and in addition to all other remedies in favor of CITY now or
hereafter existing at law or in equity.
18.5 The validity, construction and effect of this Contract shall be governed by the laws
of the State of Florida. Subject to provisions hereof relating to arbitration, any claim, objection or
dispute arising out of this Agreement shall be litigated in the Eleventh Judicial Circuit in and for
Miami-Dade County, Florida.
35
18.6 Should any part, term or provision of this Agreement be by the courts decided to be
invalid, illegal or in conflict with any law of the State, the validity of the remaining portion or
provision shall not be affected thereby.
ARTICLE 19 - NONDISCRIMINATION AND EQUAL OPPORTUNITY EMPLOYMENT
19.1 During the performance of this Agreement, CONTRACTOR shall not discriminate
against any employee or applicant for employment because of race, religion, color, sex or national
origin. CONTRACTOR will take affirmative action to ensure that employees are treated during
employment, without regard to their race, creed, color or national origin. Such action must include,
but not be limited to the following: employment, upgrading; demotion or transfer; recruitment or
recruitment advertising, layoff or termination; rates of payor other forms of compensation; and
selection for training, including apprenticeship. CONTRACTOR shall agree to post in conspicuous
places, available to employees and applicants for employment, notices to be provided by the
contracting officer setting forth the provisions of this nondiscrimination clause.
19.2 CONTRACTOR shall comply with Executive Order 11246 of September 24, 1965,
entitled "Equal Employment Opportunity" as amended by Executive Order 11375 of October 13,
1967 and as supplemented in Department of Labor Regulations (41 CFR Part 60).
19.3 CONTRACTOR shall comply with the Copeland Anti-Kickback Act (18 USC 874)
as supplemented in Department of Labor Regulations (29 CFR Part 3).
19.4 CONTRACTOR shall comply with the Contract Work Hours and Safety Standards
Act (40 US 327-330) as supplemented by Department of Labor Regulations (29 CFR Part 5).
19.5 CONTRACTOR shall comply with the Florida Trench Safety Act.
19.6 CONTRACTOR shall comply with the OSHA Safety Act.
ARTICLE 20 - CONTINGENCY
20.1 CONTRACTOR agrees that this is an at-risk Agreement, which is contingent, and
that CITY shall not be responsible for any of the payment responsibilities in Article 5. The parties
also agree that Article 5 herein constitutes the Guaranteed Maximum Price that CITY will incur
under this Agreement, and that CONTRACTOR shall incur the risk of any cost overruns not
contemplated by Article 5.
(Intentionally Left Blank -Signature on Next Page)
36
I
IN WITNESS WHEREOF, CITY and CONTRACTOR have signed this Contract in
triplicate.
ATTEST:
CITY OF SUNNY ISLES BEACH, FLORIDA
CITY CLERK
Mayor
APPROVED AS TO FORM:
City Attorney
4M Investors, LLC, a Florida limited liability
company
By: Jose Milton
Title: Manager
State of Florida )
)ss:
County of Miami-Dade )
State
On this, the _ day of
of Florida, the
,2010, before me, the undersigned Notary Public of the
foregoing instrument was acknowledged by
(name of officer), (title), of 4M
Investors, LLC, a Florida liability, on behalf of the corporation, who is personally known to me or
has produced as identification.
Notary Public, State of Florida
My Commission Expires:
Printed, typed or stamped name
of Notary Public
37
I
H:\20 \ 0\1 0023\ \Design Build Agreement Revised 12.15.1 O.doc
ENUMERATION OF CONTRACT DOCUMENT
This page is attached to the Design Build Agreement respecting the
the City of Sunny Isles Beach, Florida, and 4M Investors, LLC.
between
Article 2.1 lists certain contract documents which are attached to the Agreement, and this page
constitutes the attachment as follows:
2.1.2 Construction Performance Bond - to be supplied by CONTRACTOR before construction
commences.
2.1.3 Construction Payment Bond - to be supplied by CONTRACTOR before the Work
commences.
2.1.4 Drawings and Outlines Specifications - to be supplied by CONTRACTOR and approved by
CITY in accordance with the provisions of the Agreement.
2.1.5 Insurance Certificate - to be supplied by CONTRACTOR before the Work commences.
2.1.6 Notice of Award and Notice to Proceed - to be supplied by the CITY at the times appropriate
under the Agreement.
2.1.7 Clarifications and Exclusions. See the following page.
2.1.8 - All applicable provisions of State, Federal or Local law - omitted by the parties, and will not
be attached, but the foregoing does not relieve CONTRACTOR from complying therewith as
provided in the Agreement.
2.1.9 - Any modification, including all Change Orders, Written Amendments and Work Change
Directives - none in existence as of the date hereof, but will form part of the Contract Documents.
H:\20 I 0\1 00231 \Design Build Agreell1ent Revised 12.15.1 O.doc
38
City of Sunny Isles Beach
18070 Collins Avenue
Sunny Isles Beach, Florida 33160
(305) 947-0606 City Hall
(305) 949-3 II 3 Fax
(305) 947-2150 Building Department
(305) 947-5107 Fax
City Commission
Norman S. Edelcup, Mayor
Lewis J. Thaler, Vice Mayor
Roslyn Drezin, Commissioner
Jeanette Gatto, Commissioner
George "Bud" Scholl, Commissioner
Rick Conner, City Manager
Hans Ollino!, City Allorney
Jane A. Hines, CMC, Cily Clerk
MEMORANDUM
TO: The Honorable Mayor and City Commission
FROM: Hans Ottinot, City Attorney
Rick Conner, City Manager
DATE: December 16,2010
RE: Approving a Ground Lease, Development Agreement, and Design-Build
Agreement Between the City of Sunny Isles Beach and 4M Investors, LLC
RECOMMENDA TION:
Authorize the City to enter into a Ground Lease, Development Agreement, and Design-Build
Agreement with 4M Investors, LLC covering approximately 3.7 acres ofland owned by the City
on the north side of Sunny Isles Boulevard (the "Property") for development of a park, parking
garage, Aquatic Entertainment Center, and associated retail (the "Project").
BACKGROUND:
The City Commission contemplates the development of real property within the Town Center
District for a public parking garage, a public park and Aquatic Entertainment Center.
Subsequently, the City provided public notice of its intent to solicit proposals to design and build
the Project on the Property. In response to the City's bid solicitation (RFP No. 10-10-1) issued
on October 6, 2010, 4M Investors, LLC, (the "Developer") submitted a response which was
accepted by the City Commission on November 18,2010, via Resolution No. 2010-1632,
to develop the Project. The City has procured a traffic analysis based on the projected usage
and the findings indicate that with very minor roadway and signage modifications, there will not
be any deterioration of traffic.
Ground Lease
The City of Sunny Isles Beach (the "City") is the fee simple title holder of the property located at
151 Sunny Isles Boulevard. The City and Developer desire to enter into a ground lease in order
to develop the Project.
The salient provisions of the Lease are:
Agenda Item 1 0 K
Date I Z - ~ ()
1. The initial term shall be thirty (30) years with two (2) thirty (30) years options to
renew plus a third option for nine (9) years, for a total potential lease term of ninety
nine (99) years.
2. The City shall have the right to use those portions of the Aquatic Entertainment
Center described as the ballroom or banquet facilities for City sponsored events nine
(9) times during each calendar year, provided thirty days notice is provided to
Developer.
3. Developer shall be required to develop, manage, and operate at its sole expense the
Aquatic Entertainment Center and retail stores.
4. Commencing upon year five (5) of the lease, Developer shall pay the City a net
annual rent in the amount of $324,000.00 (three hundred twenty four thousand
dollars) with CPI increases every fifth year.
5. Developer shall also pay to the City 4% on gross receipt sales on any food, beverages,
and miscellaneous goods such as gifts, shirts, caps and souvenir to its customers or
from renting the banquet facilities.
6. Developer shall be required to pay a security deposit equal to two (2) years of rent or
$648,000.00 (six hundred forty eight thousand dollars) to secure its obligations under
the ground lease, and to pay applicable taxes.
7. Developer shall be required to commence construction of the Aquatic Entertainment
Center within six (6) months of site plan approval by the City.
8. Developer and a responsible architectural/engineering firm shall enter into a contract
for the design of the parking garage and park. The parking garage will be under the
day to day control of the City and the City will be entitled to all revenue from the use
of the parking garage.
9. Developer shall be responsible for securing a completions guaranty or a lien bond and
a performance and payment surety bond to secure their obligations under the ground
lease.
10. Developer shall be responsible for marketing and leasing the Aquatic Entertainment
Center to prospective users of the facilities.
11. Developer shall be responsible for retaining an acceptable vendor to manage and
operate the Aquatic Center and associated amenities.
12. Developer shall be responsible for maintaining insurance, including general public
liability insurance, worker's compensation insurance, and builder's risk insurance.
13. The parties can terminate the lease if the Developer is not able to obtain construction
financing for the Aquatic Center.
14. The parties can terminate the Lease if the Developer is not able to retain an
Acceptable Vendor to operate the Aquatic Center.
15. The City will have the right to terminate the agreement if the construction plans and
specifications presented by the Developer at the 30%, 50%, and 90% design stages do
not provide the City with the expected quality and appropriate amenities for the
garage or park.
Develooment A2reement
The terms and provisions of the ground lease shall be the basis for the rights and obligations of
the parties. However, in order to fully develop the Project, the City and Developer are also
required to enter into a separate Development Agreement. The salient features of the
Development Agreement include the following:
1. Developer shall be responsible for obtaining all approvals, including permits and
fees from all government entities. However, the City shall waive all permit fees
charged by the City for the development of the Project.
2. Developer shall be responsible for constructing the Project, which includes the
park, parking garage and Aquatic Entertainment Center.
3. Developer shall be responsible for obtaining all development approvals from the
City and other governmental agencies.
4. The City and Developer are required to enter into a Design/Build Agreement for
the construction of the park and parking garage.
5. Developer shall enter into a Declaration of Covenants and Restrictions to
facilitate the construction and operation of the Project.
6. The parties agrees that time is of the essence and that Developer shall be required
to follow a Developer's Schedule, which provides dates and times of delivery of
the various plans, preparation and filing of applications for, and obtaining the
various permits and public approvals and schedule for the construction of the
improvements.
7. Developer agrees that the Project shall be completed no later than December 1,
2013.
8. Developer is required to demonstrate its financial capacity to the City and shall
provide proof of developer funding to complete the Project.
9. Developer shall be required to provide payment and performance bonds.
10. Developer will be required to indemnify the City relating to any claims filed
regarding the construction of the Project.
11. The Development Agreement cannot be assigned without the consent of the City.
Desien/Build Aereement
Prior to the commencement of the construction of the Parking Garage and Park, the parties shall
be required to enter into a into a Design/Build Agreement. The Design/Build Agreement shall
set forth 4M Investor's obligations and deadlines to design and construct the aquatic
entertainment center as well as the park and parking garage, and high end retail shops to be
constructed on the Property.
The salient provisions of the Design/Build Agreement are:
1. The work shall commence from the issuance of a notice to proceed, and shall be
substantially complete no later than 18 (eighteen) months from issuance of a
building permit.
2. The public improvements element of the Project shall consist of an elevated park
and a three hundred and eight (308) space parking garage which shall include
approximately 19,000 square feet of ground level retail area.
3. The parties shall enter into a Buy Back Agreement relative to the 19,000 square
feet of commercial retail space to be located in the garage.
4. The City shall pay the Developer a Guaranteed Maximum Price of
$15,000,000.00 (fifteen million dollars) to complete the park and parking garage
as described in the conceptual plans.
5. The Guaranteed Maximum Price may only be changed by change order or a
written amendment, and the City will not be responsible for costs that exceed the
Guaranteed Maximum Price.
6. Developer shall schedule and conduct weekly meetings with the City to discuss
the status of the work and shall also provide monthly written reports to the City.
7. Developer shall obtain and pay for all permits and license fees, however the City
agrees to waive its own municipal permit and inspection fees.
8. Developer shall obtain necessary payment and performance bonds to secure its
obligations.
9. Developer shall also obtain the necessary insurance coverage and indemnify the
City for any actions taken in connection with the work.
10. Developer shall provide warranties for its work and correct any defective work
upon demand by the City.
11. There is no early completion bonus and Developer shall be required to pay
liquidated damages penalties in the amount of $2,500.00
(two thousand five hundred dollars) per day for each day the work is delayed
beyond the contract deadlines.
12. The City is authorized to terminate the Design/Build Agreement with or without
cause by giving Developer seven (7) days written notice for Developer's defaults.
FinanciDf! For Parkin2;/Gara2;e
The City is able to fund the construction of the park and garage through its Capital Project
Budget. No additional financing is needed to construct the park and garage.
Cost Analvsis
The City paid almost $10,000,000.00 (Ten Million Dollars) to build Pelican Park on a five acre
site. Similarly, it is estimated that the City will pay almost $13,000,000.00 (Thirteen Million
Dollars) to build Heritage Park (which includes a parking garage and park at grade level).
Heritage Park is situated on 3.5 acres. The City is seeking to build an elevated park and parking
garage in symmetry with an Aquatic Center on a 3.7 acre site for $15,000,000.00 (Fifteen
Million Dollars).
Staff has worked diligently to research the costs of an elevated park and parking garage. Staff
has retained experts to review cost estimates provided by the Developer. Based on the analysis
provided by our experts, staff finds that the $15,000,000.00 (Fifteen Million Dollars) Guaranteed
Maximum Price to be reasonable and acceptable. Staff will pursue cost savings such as a sales
tax savings plan to reduce the price for the Project.
NEXT STEPS
Upon approval of the recommended action, the City Manager and City Attorney will negotiate
the final terms of the Ground Lease, Development Agreement, and Design-Build Agreement
with 4M Investors in substantially the same form as the attached Exhibits "A", "B" and "C".
The proposed Agreements are not final but establish the parameters to move forward with the
Project.
ATTACHMENTS:
. Resolution
. Agreement
TO:
FROM:
DATE:
RE:
City of Sunny Isles Beach
18070 Collins Avenue
Sunny Isles Beach, Florida 33 160
(305) 947-0606 City Hall
(305) 949-3 II 3 Fax
(305) 947-2150 Building Department
(305) 947-5107 Fax
City Commission
Norman S. Edelcup, Mayor
Lewis J. Thaler. Vice Mayor
Roslyn Brezin, Commissioner
.Jeanette Gatto, Commissioner
George "Bud" Scholl, Commissioner
Rick Conner, City Manager
Hans Ottinot, City AI/orne)'
Jane A. Hines, CMC, City Clerk
MEMORANDUM
The Honorable Mayor and City Commission
Hans Ollinnl, City Allnrnc~
December 16,2010
Revised Design-Build Contract
In accordance with the comments provided at the recent workshop, the Design-Build Contract
has been revised to confirm the Guaranteed Maximum Price is a net $15 Million Dollars. The
revised contract requires approval of the City Commission for change orders or amendments to
the Design-Build Agreement. Additionally, the term buy-back has been defined.
Please note the attached agreement is a draft. Negotiations are on-going. The Developer has not
accepted the terms of the Agreement. Please also note that the Agreement may be revised in
accordance with instructions from the City Commission and future negotiations.
~.QUise..c\ \)E.Si"IJ-&.\ll..\\~'
Agenda ~tem I ("') K
Date l?. - ll-- \ D