HomeMy WebLinkAboutReso 2011-1749
RESOLUTION NO. 2011 - ~
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF SUNNY
ISLES BEACH, FLORIDA, APPROVING A GROUND LEASE AND
DEVELOPMENT AGREEMENT AND DESIGN-BUILD AGREEMENT
BETWEEN THE CITY OF SUNNY ISLES BEACH AND 4M INVESTORS, LLC.,
IN AN AMOUNT NOT TO EXCEED TEN MILLION, SEVEN HUNDRED
THOUSAND DOLLARS ($10, 700,000.00), ATTACHED HERETO AS EXHIBITS
"A" AND "B", TO DESIGN AND BUILD AN UPSCALE LIFESTYLE CENTER
IN GATEWAY PARK CONSISTING OF A PARK, PARKING GARAGE, AND
REST AURANT(S); AUTHORIZING THE MA YOR TO EXECUTE SAID
AGREEMENTS; 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, park, and upscale lifestyle center in Gateway Park with high end retail restaurants
(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, on December 16,2010, via Resolution No. 2010-1658, the City Commission
authorized the City Manager and the City Attorney to negotiate agreements with Developer for
approval by the City Commission; and
WHEREAS, the Developer subsequently submitted a revised site plan for the Project to
include high end retail restaurants instead of the initially proposed aquarium area, which proposal
was formally submitted to the City Commission on April 21, 2011; and
WHEREAS, on June 15, 2011, via Resolution No. 2011-1736, the City Commission
authorized the City Manager and the City Attorney to negotiate agreements with Developer for
approval by the City Commission; and
WHEREAS, the City desires to enter into a Ground Lease and Development Agreement, and
Design-Build Agreement with Developer, attached hereto as Exhibits "A" and "B", in an amount not
to exceed Ten Million, Seven Hundred Thousand Dollars ($10,700,000.00).
RlO 11- 4M Investors Agmts Final
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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 and Development Agreement and Design-Build
Agreement. The Ground Lease and Development Agreement, and Design-Build Agreement between
the City of Sunny Isles Beach and 4M Investors, LLC, attached hereto as Exhibits "A" and "B" in an
amount not to exceed Ten Million, Seven Hundred Thousand Dollars ($10,700,000.00), are hereby
approved. .
Section 2. Authorization of Mayor.
Agreements.
The Mayor IS hereby authorized to execute said
Section 3. Authorization of City Manager and City Attornev. The City Manager and City
Attorney are hereby authorized to .do all things necessary to effectuate this Resolution.
Section 4.
Effective Date. This Resolution will become effective upon adoption
. \
..~.A:~
Jane A. Hines, CMC, City Clerk
Moved by: Ylc,e M~o",T~'i-~
Seconded by: ~ ~~ I n":>CU~ ~"'1'T1)
Vote: S 'b
Mayor Edelcup
Vice Mayor Thaler
Commissioner Aelion
Commissioner Gatto
Commissioner Scholl
~(Yes)
---.JL:(Y es )
--lL.(Y es)
~(Yes)
~(Yes)
_(No)
_(No)
_(No)
_(No)
_(No)
RlOI 1- 4M Investors Agmts Final
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TO:
FROM:
DATE:
RE:
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City of Sunny Isles Beach
18070 Collins Avenue
Sunny Isles Beach, Florida 33160
(305) 947-0606 City Hall
(305) 949-3113 Fax
MEMORANDUM
The Honorable Mayor and City Commission
Alan J. Cohen, City Manager
Hans Ottinot, City Attorney
7/21/2011
Approving a revised Ground Lease and 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 and Development Agreement, and
Design-Build Agreement with 4M Investors, LLC covering approximately 3.7 acres of
land owned by the City on the north side of Sunny Isles Boulevard (the "Property") for
development of a park, parking garage, and high-end restaurant (the "Project").
REASONS:
BACKGROUND:
The City Commission contemplates the development of real property within the Town
Center District for a public parking garage, a public park and high-end
restaurant. By way of background, 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 initially accepted by the City Commission
on November 18, 2010, via Resolution No. 2010-1632, to develop the Project. The i.nitial
design-build agreement was to include an aquatic center. However, the parties
subsequently elected to replace the aquatic themed center with an alternative proposal
which included high-end restaurant space. The Developer presented its revised,
schematic proposal to the City Commission on April 21, 2011. On June 15, 2011, the
City Commission approved the Agreements with directions to staff to workout final
details in order to present the Agreements for final approval within thirty (30) days. For
several weeks, staff has negotiated with the Developer and his attorney to finalize terms
of a Design-Build Agreement and a Ground Lease and Development Agreement. Staff
and Developer have finalized terms of the Agreements and resolved all outstanding
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Issues.
Design/Build Agreement: Prior to the commencement of the construction of the Parking
Garage and Park, the parties shall be required to enter into a Design/Build Agreement.
The Design/Build Agreement shall set forth 4M Investor's obligations and deadlines to
design and construct the high-end restaurant as well as the park and parking garage, to be
constructed on the Property. The salient provisions of the Design/Build Agreement are as
follows:
1. The project shall consist of the complete design and construction of a park and three
hundred and eight (308) space parking garage consistent with the structural design and
aesthetic standard of the City owned garage located at Heritage Park, including
associated landscape, irrigation work, underground drainage system and as generally
described in a schematic proposal submitted to the City on April 21,2011.
2. Developer shall obtain site plan approval for the project from the City Commission no
later than December 31, 2011.
3. Developer shall apply for a building permit for the project from the City's Building
Department no later than June 30, 2012.
4. The project shall be substantially completed no later than three hundred and ten (310)
days from notice to proceed, or the issuance of a temporary certificate of occupancy,
whichever events occurs first.
5. The notice to proceed shall be issued for the construction of the project upon the
submittal of an application for building permit for the project or the approval of 90%
design by the City, whichever event occurs first.
6. Developer shall commence on site construction of the project no later than ninety (90)
days after the City's issuance of the notice to proceed.
7. The City shall pay the Developer a Guaranteed Maximum Price of $1 0,000,000.00 (ten
million dollars) to complete the park and parking garage as described in the conceptual
plans. The initial sum of $950,000.00 shall be attributed to the design phase, with the
remaining amount attributed to the construction phase. If the Developer is not able to
engage an Acceptable Vendor for the leased premises, the Developer has agreed to
design and construct the leased area into park area for $700,000.00.
8. 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.
9. 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.
10. Developer shall obtain and pay for all permits and license fees, however the City
agrees to waive its own municipal permit and inspection fees.
11. Developer shall obtain necessary payment and performance bonds to secure its
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obligations.
12. Developer shall also obtain the necessary insurance coverage and indemnify the City
for any actions taken in connection with the work.
13. Developer shall provide warranties for its work and correct any defective work upon
demand by the City.
14. There is no early completion bonus and Developer shall be required to pay liquidated
damages penalties in the amount of $2,000.00
(two thousand dollars) per day for each day the work is delayed beyond the contract
deadlines.
Ground Lease and Develoument Agreement: 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 and Development
Agreement to develop the Project. The salient provisions of the Ground Lease and
Development Agreement are as follows:
I. 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. Developer shall be required to develop, manage, and operate at its sole expense a high-
end restaurant on the leased premises.
3. Commencing upon the payment of rent by the high-end restaurant operators,
Developer shall pay the City annual rent in the amount of 30% of the annual gross rent
from rent paid by subtenants. No annual rent is due if the premises are not leased. Gross
rent will be based on comparable market rates. Developer may deduct real estate property
taxes from Gross Rent. The Developer shall be responsible for payment of real estate
taxes at the time of issuance of Temporary Certificate of Occupancy or Certificate of
Occupancy issued for Tenant's Improvements. The City shall have the right to audit the
Developers books and records.
4. Within 180 days after finding an Acceptable Vendor, Developer shall at its sole
expense submit plans to the City for the construction of the restaurant area. The City has
the right to approve the Acceptable Vendor.
5. Developer shall commence construction of the restaurant area within 90 days from
issuing of Building Permit.
6. Developer and the City shall enter into a joint agreement with respect to the parking.
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.
7. Developer shall be responsible for locating and securing a vendor, acceptable to the
City, to occupy the high- end restaurant within six months from the date the Ground
Lease is approved by the City Commission.
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8. Developer shall be responsible for maintaining insurance, including general public
liability insurance, worker's compensation insurance, and builder's risk insurance.
Financing For Parking/G~I1l~
The City is able to fund the construction of the park and garage through its Capital
Project Budget.
Cost Analysis
The City paid almost $10,000,000.00 (Ten Million Dollars) to build Pelican Park on a
two (2) 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
above ground park and parking garage and high-end restaurant on a 3.7 acre site for
$10,000,000.00 (Ten Million Dollars).
Staff has worked diligently to research the costs of the park and parking garage. Staff has
retained experts to review cost estimates provided by the Developer. Based on the
analysis provided by our experts, the Developer has reduced the contract price to
$10,000,000.00 (Ten Million Dollars) with the additional $700,000.00 to convert the
leased area to a park.
ATTACHMENTS:
. Resolution
. Ground Lease Agreement
. Design/Build Agreement
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GROUND LEASE AND DEVELOPMENT AGREEMENT
BY AND BETWEEN THE
SUNNY ISLES BEACH, A FLORIDA MUNICIPAL CORPORATION
("LANDLORD")
AND
4M INVESTORS, LLC,
A FLORIDA LIMITED LIABILITY COMPANY
("TENANT")
.J
GROUND LEASE AND DEVELOPMENT AGREEMENT
This Ground Lease and Development Agreement (the "Lease") is made as of this
~ay of (..)UA-'( ,2011, by and between the CITY OF SUNNY ISLES BEACH,
FLORIDA, a Florida municipal corporation ("Landlord" or "City"), whose address is 18070
Collins Avenue, Sunny Isles Beach, Florida 33160, and 4M INVESTORS, LLC, a Florida
Limited Liability Company ("Tenant" and collectively with Landlord, the 'Parties" or
individually, a "Party"), 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 that certain real property located in
Sunny Isles Beach, Miami-Dade County, Florida, which is legally described in Exhibit "A"
attached hereto (the "Premises"), comprised of approximately 60,000 square feet of vacant land;
and
WHEREAS, Tenant desires to lease the Premises from Landlord, and Landlord desires to
lease the Premises to Tenant, on the terms and conditions set forth in this Lease; and
WHEREAS, the Landlord intends to build a park and parking garage ("Landlord's
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 I
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 ('Original Term") commencing on
the date of issuance of a temporary Certificate of Occupancy or Certificate of Occupancy,
whichever is earlier, for use of Tenant's Project as described in Exhibit "c" hereof and expiring
thirty (30) years from the date of issuance of the temporary Certificate of Occupancy or
Certificate of Occupancy, as the case may be. Landlord and Tenant agree that the Lease is being
granted by Landlord on the condition that Tenant construct the Improvements on the Premises
and sublease the Premises to at least one (1) Acceptable Vendor, as hereinafter defined, for
purposes of operating a high-end restaurant facility on the Premises.
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Section 2. Renewal Terms. Provided Tenant is not in default under the terms of the Lease or
any renewals, Tenant shall have the right to renew this Lease for two (2) additional periods of up
to thirty (30) years each and a final option for nine (9) years (each of which is referred to herein
as a "Renewal Term"), upon the same terms and conditions as the Original Term except that the
number of renewal options shall be reduced by the renewal option then being exercised and any
renewal options previously exercised. An option period shall be exercised by delivering written
notice to Landlord on or before twelve (12) months prior to the end of the Original Term or the
applicable Renewal Term, as the case may be. The 'Term" shall include the Original Term and
any Renewal Term.
Section 3. Early Termination. This Lease can be terminated by the Landlord or the Tenant at
any time without financial costs to either by providing thirty (30) days written notice to the other
if Tenant is not able to engage an "Acceptable Vendor" as defined in Article VIII to operate the
retail restaurant facilities as described in Exhibit "C" six (6) months from the date of approval of
this Lease by the City of Sunny Isles Beach Commission.
Section 4. Access to Premises. Subject to the terms and conditions of this Lease, including,
but not limited to, Tenant performing its financial and other obligations under this Lease,
Landlord grants Tenant the non-exclusive right of reasonable ingress and egress to and 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 unless otherwise agreed to herein. Any
other use by Tenant of Landlord's Property must be approved by the Landlord in writing except
Landlord may grant Tenant permission to use Landlord's property for special events on a annual
basis. Tenant grants Landlord, and its officers, employees, agents, subtenants, invitees, vendors,
contractors and the general public, the non-exclusive right of reasonable ingress and egress to
and from the Premises in order to obtain access to public property. Landlord and Tenant shall
enter into a temporary construction easement agreement to facilitate the construction of the
Tenant's Improvements prior to the effective date of this Lease.
Section 5. Use of Premises. Tenant, at Tenant's sole expense, is authorized to develop,
finance, construct, manage, maintain and operate a retail restaurant( s) and associated amenities
on the Premises. Tenant may not use the Premises for any other purpose without the 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 one year from date of execution of any sublease(s) with any
Acceptable Vendor, the Tenant shall pay Landlord an annual rental for each "Lease Year" (as
hereinafter defined), of thirty percent (30%) of annual Gross Rent collected, as hereinafter
defined, ("Rent") derived or generated from the subleases entered between Tenant and
Acceptable Vendor(s). Rent payment shall be made to Landlord on the last day of the Lease
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Year. Tenant shall make rent payment during the Term hereof to the following address: City of
Sunny Isles Beach, Florida, Attn: Finance Director, 18070 Collins Avenue, Sunny Isles Beach,
Fl 33160 or at such other place as Landlord may from time to time direct by written notice to
Tenant. For purposes of this section, Lease Year means a twelve (12) consecutive month period,
regardless of whether the Acceptable Vendor pays rent during the entire Lease Year. The first
Lease Year shall begin on the date of execution of sublease or lease. Each succeeding Lease
Year shall commence upon the anniversary date of the first Lease Year. Notwithstanding the
foregoing, no Rent is due to Landlord if the Premises are not leased to an Acceptable Vendor(s).
For purposes of this section, Rent shall mean any monies paid to Tenant by the Acceptable
Vendor for the usage of the Premises, including without limitation, the amount of contract rent
paid by Acceptable Vendors to Tenant, inclusive of any interior or exterior space and
comparable to the market rate of rents charged in northeast Miami-Dade County. Rent shall
further include all amounts received from a valet parking concession if any and any other income
derived by the Tenant from the Acceptable Vendor in the form of fees or other charges. Gross
Rent or Rent does not include any sums paid by Tenant to a governmental authority for real
estate property taxes and Tenant may deduct real estate property taxes from Gross Rent paid by
Acceptable Vendor(s). Tenant may appeal to the Landlord to exclude other expenses incurred
exclusively by Tenant from the definition of Gross Rent. It is the intention of the parties hereto
that it is the obligation of Tenant to contract with third parties to sublease all of the available
space on the Premises, subject to Landlord approval and to pay to the Landlord thirty percent
(30%) of all amounts paid to Tenant, directly or indirectly, as rent, fees and other charges for the
usage of the Premises. Under no circumstances will the sub-leasing, assignment or any other
transfer of the Lease interest by the Tenant result in any reduction of Rent due to the Landlord.
Section 2 Audit Rights. Tenant shall maintain books and records of all monies collected by
it related to the usage and rental of the Premises and the operating costs thereof, and shall permit
Landlord to audit Tenant's books and records for any annual period upon ten (10) days prior
written notice. If Landlord elects to audit such books and records, Tenant shall reasonably
cooperate with Landlord, and any deficiency or overpayment disclosed by such audit shall be
promptly paid or refunded as the case may be. If any such audit discloses that the Rent paid
hereunder was understated by more than five percent (5%) of the actual Rent collected, Tenant
shall reimburse Landlord for the reasonable costs of such audit and further pay interest cost on
any monies owed pursuant to statutory interest rate set forth in Section 55.03, Florida Statutes or
7% effective APR whichever is greater. The audit rights described in this Section 11(2) is a
material inducement for Landlord to enter into this Lease.
Section 3. 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 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
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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.
Section 4. 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 calculated pursuant to the statutory interest rate set forth in Section 55.03,
Florida Statutes or 7% effective APR whichever is greater from the payment due date until paid
in full. Lateness includes failure to pay the full amount due on time and failure to provide a
check that is paid upon presentment by Tenant's bank. 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.
ARTICLE III
Net Lease
Section 1. Net Lease. This Lease is a net lease and the 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, commencing upon the
date of the issuance of the Temporary Certificate of Occupancy or Certificate of Occupancy
whichever occurs first, 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 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,
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,
in installments, Tenant may pay the same in installments before the same respectively become
due and before any fme, 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. For the
purpose of this Section, the date of possession is the date a temporary Certificate of Occupancy
or Certificate of Occupancy is issued to the 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 Premises 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 Premises 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 IS-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.
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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 Premises and the
Improvements during the Term from and after the date the Final Approvals are obtained and
vacant, unencumbered possession of the Premises has been delivered to Tenant.
Section 6. Depreciation. For depreciation purposes only, the Improvements on the Premises
once constructed by Tenant shall be deemed the property of Tenant, and any and all depreciation
or loss allocated to the Improvements shall remain the sole property of Tenant until this Lease is
terminated pursuant to its terms.
ARTICLE V
Improvements/Development Approvals; Use
Section 1. Improvements. No later than one hundred eighty (180) days after selecting
Acceptable Vendors, Tenant, at its own cost and expense, shall submit to Landlord its plans for
the commencement and completion of the construction, and the acquisition and installation of the
Tenant Improvements, as hereinafter defined. Tenant's Improvements shall consist of retail
restaurant facilities as generally described in the schematic plans attached hereto as Exhibit "c"
(the "Tenant Improvements" or "Improvements"). The Landlord acknowledges and agrees that
Tenant intends on constructing a restaurant(s) as generally described on the Premises in
accordance with Exhibit "C". The plans for the restaurant shall include: a layout of the Premises,
a lighting plan, a depiction of all fixtures to be added to Premises, interior finish and material
samples, typical display technique, and interior and exterior signage plan.
Section 2. Development Approvals. Tenant may not construct any Tenant's Improvements
until the preliminary plans and designs for such improvements have been submitted to, and
approved by the City in writing accordance with the development review process set forth in the
Code of the City of Sunny Isles Beach ("Development Approvals"). Tenant shall submit
conceptual plans as generally described in Exhibit "C" for approval for Tenant's Improvements
simultaneous with the submittal of plans for the park and parking garage that Tenant intends to
construct for the Landlord but in no event later than 180_ days after the execution of this Lease.
The obligations of the Tenant to obtain the Development Approvals shall be deemed satisfied
and fulfilled at such time as the Development Approvals are fully adopted by all requisite
governmental action and have become final, binding and no longer subject to appeal, which shall
hereinafter be referred to as having obtained the "Final Approvals. fI Notwithstanding the
foregoing, Development Approvals do not 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.
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Section 3. Review by 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 approval of Acceptable Vendor and revised plans, 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 and lor join 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. The City will process all Development Approval applications in a
timely fashion as required hereunder and it shall cooperate with the Tenant 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 Premises
(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 Lease 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 Development Approval applications in a timely fashion; provided, however, nothing
contained herein shall obligate the City to expend any funds in support of any such applications.
The City agrees to waive all applicationslpermit fees charged by the City for development review
and the issuance of building permits and building inspections for Tenant's Improvements..
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
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 LEASE IS INTENDED TO
LIMIT OR RESTRICT THE POWERS AND RESPONSffiILITIES 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 OPENLY, FULLY,
FREELY AND F AIRL Y IN FULL ACCORDANCE WITH LAW AND WITH BOTH
PROCEDURAL AND SUBSTANTIVE DUE PROCESS TO BE ACCORDED THE
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APPLICANT AND ANY MEMBER OF THE PUBLIC. NOTHING CONTAINED IN THIS
LEASE SHALL ENTITLE THE TENANT TO COMPEL THE CITY TO TAKE ANY SUCH
ACTIONS, SA VE 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 obtain Final Approvals for Tenant's Improvements on or before one hundred eighty (180)
days after selection of Acceptable Vendor (the "Approval Period"). The Tenant shall have the
right to request the City to extend the Approval Period for 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 Lease 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 Premises 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 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 ~onstruction 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
Approvals.
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Section 2. Schedule for Design/Construction. The Tenant shall commence construction of
the Tenant's Improvements no later than ninety (90) days after having acquired Final Approvals
for Tenants Improvements.
Section 3. Construction Standards. The Tenant shall construct the Tenant's Improvements.
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.
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 Occupancy. Promptly upon substantial completion of Tenant's
Improvements, as reasonably determined by the Landlord, the Tenant may give to the Landlord
written notice thereof. Not later than thirty (30) business days after the receipt of such notice, the
Landlord will either (i) issue to the Tenant a Certificate of Occupancy, or temporary Certificate
of Occupancy if all required inspections are passed or (ii) provide the Tenant with a written
statement indicating in reasonable detail in what respect the Tenant has failed to complete the
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 for the Tenant Improvements hereunder shall be subject to inspection by representatives of
the Landlord at any time with 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 Occupancy or
temporary Certificate of Occupancy 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 fayade) 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 written 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
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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" (as defined in the City's Land Development Regulations) 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.
(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, except "Major Alterations" shall review such materials to determine if they
are acceptable. 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 Lease has been terminated
pursuant to the provisions hereof. Notwithstanding the foregoing, Tenant is required to obtain all
necessary building permits if Landlord fails to review materials that are not deemed "Major
Alterations" .
(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 written
consent of the Landlord. Tenant may make changes which do not constitute Major Alterations
provided that written notices of any such changes are promptly given to the Landlord. In
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connection with the foregoing, the Parties contemplate and agree that submission and review of
design and [mancial 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 publiclprivate partnership between the City and the Tenant (the "Project"),
continually coordinating the same to the extent required or deemed advisable with the City.
(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. Design Documents. At all stages of the development review process set forth in
Section VI(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 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 10. Park/Parking Garage. The Tenant and the Landlord acknowledges that Tenant
will need adequate parking spaces to serve customers of the restaurant facilities, and the Parties
will enter into a separate agreement for the construction of Landlord's Parking Garage. Upon
the selection of the Acceptable Vendor, the Landlord and Tenant shall negotiate a parking
agreement to provide adequate parking to serve the restaurant facilities. Landlord reserves the
right to charge fees for the use of the Parking Garage.
Section 11. 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 Approved First
Mortgagee or other lenders requiring approval;
(ii) Evidence that the applicable contractor ("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. If an Approved First Mortgagee requires a completion guaranty, such guaranty shall
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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 issued 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 obligee 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 of Tenant then the
Landlord shall determine whether or not it will require a completion guaranty or bonds:
(iii) 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
(iv) 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.
Section 12. 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 Premises 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; and
(v) Marketing and leasing the restaurant facilities to prospective users of the facilities.
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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 13. 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, (ii) to keep the other party fully
informed of its activities pursuant to Article VI, (iii) to take such other steps as may reasonably
be required for the accomplishment of the Improvements, and (iv) to assist upon request from
Tenant to find Acceptable Vendors for the Premises, insofar as the Landlord provides non-
material support for such efforts and is not obligated to engage in any business activities related
to finding and securing an Acceptable Vendor.
ARTICLE VII
Acceptable Vendor
Section 1. Acceptable Vendor. Tenant acknowledges that it has limited experience in the
operations of restaurants and, therefore, agrees to retain an acceptable vendor (Acceptable
Vendor) to manage and operate the restaurant facilities and associated amenities to be located on
the Premises. At a minimum, an Acceptable Vendor must possess the following qualifications:
(a) The experience, qualifications, good reputation, financial resources, and adequate
personnel necessary for the proper management of the restaurant facilities as required
under this Lease.
(b) On-site management and/or administrative office within the Premises.
(c) No outstanding material violations of any federal, state or local law, regulation, code
or ordinance.
(d) It 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.
(e) Direct restaurant experience, as reasonably determined by Landlord, and a restaurant
concept for the restaurant facilities deemed to be high end.
(an "Acceptable Vendor").
Section 2. A{Jproval 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 VII(I) above. The consent of the Landlord is required before the Tenant enters into any
agreement with an entity deemed an Acceptable Vendor and Landlord shall receive copies of all
agreements (including any amendments) entered into with an Approved Vendor within five (5)
days of its execution. Consent by the Landlord shall not by unreasonably withheld if the
Acceptable Vendor meets the criteria in Section VII(1) and the agreements between the Tenant
and Acceptable Vendor(s) are in keeping with the intent and spirit of this Lease. The
requirement of approval of Acceptable Vendors is a reoccurring right that Landlord has during
the term of this Lease. No Acceptable Vendor shall operate on the Premises without written
14
approval from Landlord, nor shall any Acceptable Vendor materially change its restaurant
concept without prior approval of the Landlord. If an Acceptable Vendor vacates the premises,
Tenant shall use its best effort to find a replacement Acceptable Vendor. However, after the
initial thirty (30) year term of this lease, Tenant shall have nine (9) months of any vacancy to
find a replacement Vendor with the terms and conditions set forth in this Article VII. If Tenant
fails to contract with a replacement Acceptable Vendor within said nine (9) months, it shall be a
material default under this Lease unless an extension is granted by the Landlord to find an
Acceptable Vendor.
ARTICLE VIII
Insurance and Indemnity
Section 1. Insurance. Tenant shall, at its sole cost and expense, provide and keep in full
force and effect upon commencement of construction, except as provided below, of Tenants
Improvements on the Premises, the following insurance coverages:
(a) Insurance against fIre and other hazards (including flood and windstorm
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 $1,000,000 per
incident 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 Premises and the Improvements (if any) in such amounts and
to the extent required by law.
(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.
(e) During the construction of Tenant's Improvements, the Tenant shall be required to
only have in effect the general public liability insurance and Builder's risk insurance as noted
above.
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, but ones not rated less than a minimum of A-VIII rating 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
15
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 commencement of construction of Tenant's Improvements
on the Premises, (ii) injury to or death of persons, or damage to property, following
commencement of construction of Tenant's Improvements on the Premises growing out of or
connected with the use, condition, operation, maintenance, management or occupation of the
Premises 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 their 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. For the purpose of this Article, the
commencement of construction means construction staging or any construction activity initiated
by Tenant, its agents, representatives or assignee on the Premises.
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, 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
VIII(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 lawsuit shall be filed against Tenant unless and
until the insurer shall fail or refuse to defend and/or pay all or any part thereof.
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 frrst-c1ass 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 Tenant's Improvements or any part thereof in order to keep and maintain the Premises,
the Improvements in good repair and appearance and in a tenantable condition. The Tenant shall
keep, maintain, use and operate the Improvements in a manner that will enhance the
neighborhood and reflect well upon the Landlord. The Tenant shall, at its own expense, keep the
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Improvements 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 Improvements 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 Premises or any part thereof or to
the use or manner of use of all or any part of the Premises (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 Premises 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 Premises. In the event that Tenant, its agents,
employees or contractors, cause any Hazardous Materials to contaminate any portion of the
Premises, Tenant shall comply with any and all Legal Requirements relative to such Hazardous
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
peiformed 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 Premises or any other portions of the Premises 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 V.S.C. Section 9601, et seq.; the Hazardous Materials
Transportation Act, as amended, 49 V.S.C. Section 1801 et seq.; the Resource Conservation and
Recovery Act, as amended 42 V.S.c. Section 6901 et seq. and any applicable state laws; and the
regulations adopted and publications promulgated pursuant to said laws.
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ARTICLE XI
Liens
Section 1. Liens. Tenant shall not permit any mechanic's lien to be filed against the
Premises 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
Premises or the Improvements or any part thereof through or under Tenant. The Memorandum of
Lease (as hereinafter defmed) 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 Premises 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 any claim and ensuing
litigation as Tenant deems reasonably appropriate at Tenant's expense within thirty (30) days of
its initial filing, 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
AlterationslReconstruction
Section 1. Alterations. In the event the Improvements damaged by fIre or other casualty and
the Tenant is obligated to, or elects to, reconstruct the same under the provisions of Article
XII(2) below, before commencing any such demolition and/or construction, Tenant shall submit
to Landlord a copy of the plans and specifications for such new improvements, together with an
estimate which shall show in reasonable detail the approximate cost of such improvements. Such
plans and specifications shall comply with all relevant Legal Requirements and shall be subject
to Landlord's written 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 or caused to be 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
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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
reasonable time but no more than one (1) year 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 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 6.
Section 6. Allocation of Proceeds. If such casualty occurs and the Tenant elects to terminate
the Lease in accordance with Section 5, 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
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 mediation under Florida Law.
In determining the value of the Tenant's interest in the Improvements, the parties or the
mediators, 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 mediators, 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 after depreciation 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, 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
option of the Landlord, shall either (i) remove any remaining Improvements and restore the
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Premises to a cleared and safe condition and at a grade approximately level with abutting
Premises, or (ii) reconstruct the Premises in accordance with Article XII(2). Upon the
completion of any such demolition, other site preparation work or construction 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 Article XVI of this Lease
and this Lease shall be terminated without liability or further recourse to the parties hereto,
provided that any 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 Improvements 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
("Insurance Proceeds") and any other monies provided for the reconstruction, restoration or
repair of the Improvements shall exceed Two Million Dollars ($2,000,000.00), the same shall be
paid into an escrow account, with an 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
by the Landlord. Payments from such escrow account shall conform to the requirements of this
Article and, in the event of restoration, shall be made on a progress payment basis against
vouchers certified by the Landlord and a registered architect selected by the Tenant and
supervising the work of restoration and shall be subject to reasonable retainage and (provided the
same does not contravene the provisions of this Lease) made in accordance with usual and
reasonable disbursement requirements of the Approved First Mortgagee, if one exists.
Section 3. Restoration. Unless otherwise determined in accordance with this Lease, Tenant
shall fully repair and reconstruct the Improvements to its 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 by 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, 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 Premises shall be
taken as a result of the exercise of the power of eminent domain, or a portion of the Premises
shall be so taken such that the remaining portion cannot be practicably repaired, rebuilt or
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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 defmed) 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 Premises 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 Premises 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 Rent shall be equitably adjusted as
of the date of vesting title pursuant to the proceeding to reflect the proportionate value of the
Premises so taken to the whole Premises. In such event, the condemnation award shall be divided
so that Landlord receives a portion of the award equal to the value of the Premises 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 Premises. All 'such rebuilding, replacing and repairing shall be carried out
as an alteration in accordance with the provisions of Article XII.
Section 3. Full Take. If all or any portion of the Premises 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
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.
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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 Premises.
ARTICLE XVI
Effect of Termination; Surrender of Possession
Section 1. Failure to Complete Construction. The Parties do hereby and agree that in the
event the Tenant fails to complete construction within eighteen (18) months of issuance of a
building permit, the Landlord shall have the right, but not the obligation to terminate this Lease
by providing written notice of its 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
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 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 and XIX, 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 Premises and all Improvements into the possession and use of Landlord without fraud or delay and, subject
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to the provisions of Articles XVIII of this Lease, in the condition at the time of completion of
construction of the Improvements, ordinary wear and tear accepted..
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
Premises by Tenant for a period of twenty (20) days after the date of termination.
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 Premises 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.
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 constitute a default by Tenant:
(a) Tenant shall not make payment of Rent expressly reserved hereunder, or any part of the same,
when due 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 statutory rate set forth in Section 55.03, Florida
Statutes or 7% effective APR whichever is greater from the date such payment was due; or
(b) Tenant shall make an assigrIffient 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
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(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 default in fulfilling any of the covenants, terms or conditions of this Lease
(other than the covenants for the payment of the 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
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), provided, however,
that the aggregate cure period shall not extend beyond ninety (90) days except where the Tenant
requests an extension of the cure period; 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 written notice from Landlord;
or
(i) Tenant shall suspend work on construction of Tenant's Improvements for reasons not
caused by Force Majeure for a period of ninety (90) days or more and such failure shall continue
for thirty (30) days after written notice by Landlord to Tenant specifying such failure; or
(j) Failure of Tenant to enter into a sublease with Approved Vendors for the Premises; or
(k) Any representation or warranty made by Tenant under this. Lease shall be materially
false, misleading or inaccurate as of the date made.
(individually, a "Default").
Section 2. Remedies of Landlord. If Tenant Defaults, Landlord may pursue any remedy
permitted by law, in equity and/or this agreement, (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 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)
re-enter 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
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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.
Section 3. No Waiver and No Estoppel. 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 or an estoppel 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 Landlord 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,
with Landlord's written consent, pledge, mortgage or encumber the Leasehold Estate demised
hereunder (a "Leasehold Mortgage"). 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 mortgagee of the Leasehold Estate ("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 in writing of the existence of
such Leasehold Mortgage and of the name and United States address of such Leasehold
Mortgagee, but under no circumstances shall the Landlord be under any obligation to mortgage
its fee simple ownership interest. Tenant shall provide to Landlord the name and mailing address
of the lender or leasehold mortgagee together with 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, and any other documents requested by Landlord within ten
(10) days of its written request.
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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 by Tenant, 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. Failure of
Tenant to provide Landlord with appropriate Leasehold Addresses shall not prevent Landlord
from being deemed as having given proper notice as provided in this section. 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 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. Landlord shall be under no obligation
to accept an inferior security and/or collateral position t the Leasehold Mortgagee(s).
(d) A Leasehold Mortgagee (or its designee or nominee) may become the 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
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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.
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; provided, however,
that the assigning Tenant shall not be relieved of its obligations hereunder.
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 Premises 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 Premises 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 Premises 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 Premises, subject to the terms and provisions set forth
below. In the event Landlord receives a written offer to purchase the Premises 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 Premises (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 Premises (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 Premises (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 purchase and sale agreement which contains the terms and provisions of
the Offer.
In the event the Tenant fails to elect to purchase the Premises (or applicable portion thereof)
within said thirty (30) day period and in accordance with the foregoing, then (i) the Right of First
Refusal shall be cancelled and rendered null and void, and (ii) Landlord shall be free to accept
the Offer and the Premises (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 Premises 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 Premises 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 recipients,
their successors and assignees, at the following addresses:
28
SIR
If to Landlord:
With a copy to:
If to Tenant:
with a copy to:
with a copy to:
Alan J. Cohen, 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
Rex Barker
2111 Ponce de Leon Boulevard
Suite 301
Coral Gables, Florida 33134
Weiss, Serota, Helfman, Pastoriza, Cole, et al.
Attn: Clifford Schulman, Esq.
2525 Ponce de Leon Boulevard
Suite 700
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 thirty (30) days after written request, 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 or other sum of money
29
y
. I;Q
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) 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 Premises 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 a
form reasonably agreed upon by the Parties may 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
30
51
, If}
with the indemnitor and/or this Lease. The provisions of this Section shall survive the expiration
or sooner termination of this Lease.
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. Time. Time is of the essence of all the terms, provIsIOns, covenants and
conditions of this Lease.
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 Premises. 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 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.
31
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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.
IN WITNESS WHEREOF, Landlord and Tenant have caused this instrument to be duly
executed as of the day and year first above written.
TENANT:
Signed in the presence of:
9 Ag4~~ ~
Print Name: :r~f..11'11~ &YY\~
s, LLC,
ited liability company
B~
Name: oseph Milton
Title: Manager
Print Name:
City of Sunny Isles Beach, Florida,
a municipal corporation
t~A-u~\UO ~Jw42-
~~A~
Aft st: , ,
Pri~t e: Jane A. Hines, CMC, City Clerk
~s~li~
FORM AND
32
SIB
EXHIBIT "A"
(The Premises)
Folio No. 31-2214-007-0030
Lots 2, 3 and 4 less the right-of-way of Second REVISED PLAT OF VISTA
SUBDIVISION, according to the Plat thereof, recorded in the Plat Book 50, at Page 76 of
the Public Records of Miami-Dade County, Florida.
33
SIB
EXHIBIT "B"
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 ofthe 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
34
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EXHmIT "C"
Preliminary PlanslConceptual Plans
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DESIGN-BUILD
AGREEMENT
PARK AND PARKING GARAGE
TillS AGREEMENT (this "Agreement"), made and entered into the 2\S-\- day of
~U L ~ ' 2011 by and between:
CLIENT:
CITY OF SUNNY ISLES BEACH, FLORIDA
a municipal corporation, and its assigns
18070 Collins Avenue
Sunny Isles Beach, FL 33160
(hereinafter to referred to as "CITY"), and
AND
DESIGN BUILDER:
4M Investors, LLC
a Florida corporation
(hereinafter referred to as "CONTRACTOR")
PROJECT:
Park and Parking Garage (hereinafter referred to as the "PROJECT" and which shall be further
defmed in this Agreement)
This Agreement may refer to the CLIENT or CONTRACTOR, individually, or as "Party" or as
"Parties."
WHEREAS, the CITY, has identified a certain parcels of real property located in the CITY
(the "Land" specifically described in Exhibit "A"), which the CITY owns and upon which it intends
to have constructed site improvements consisting of a Park and Parking Garage and all incidentals
thereto including as further defmed in this Agreement;
WHEREAS, the CITY wishes to retain the CONTRACTOR to perform all design,
construction and other services associated with and/or necessary to timely construct a code
compliant Project within the Guaranteed Maximum Price (hereinafter referred to as "Design-Build"
services which shall be further defmed in this Agreement);
WHEREAS, the CONTRACTOR agrees to complete the Design-Build services within the
contract times and for a specified and fIxed contract price as set forth in this Agreement; and
WHEREAS, CITY has determined that entering into this Agreement with CONTRACTOR
to provide the Design-Build services for this Project 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
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:
"
.J
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 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.
1.2 Building Department - The Building Department of the CITY of Sunny Isles Beach,
Florida, or its authorized employees.
1.3 Change Order - A document which is signed by the CONTRACTOR and CITY,
through its duly designated and formally authorized agent, which authorizes the performance of the
Extra Work. The CONTRACTOR shall not perform Extra Work of any kind, however
characterized, for which it expects to claim additional compensation without written authorization
from the CITY. If the CITY authorizes the CONTRACTOR to perform Extra Work, then prior to
performing the Extra Work, the CITY and CONTRACTOR shall enter into a written Change Order
specifying the services or work to be performed, the additional Contract Time that may be required
and the compensation to be paid for this Extra Work. Any Extra Work performed by the
CONTRACTOR without the CITY'S prior written approval shall not be compensable, without
exception. The CONTRACTOR intentionally, knowingly and voluntarily waives any claim for
unjust enrichment or quantum merit with respect to any work performed in the absence of a written
Change Order. Any waiver of this provision must be in writing and signed by both Parties and in no
event shall such written waiver extend to any subsequent event.
1.4 CITY - The CITY Commission of the CITY of Sunny Isles Beach, Florida and its
designated official authorized to provide approval or consent with respect to this Agreement.
1.5
City Manager- City Manager of the City of Sunny Isles Beach or his designee.
1.6 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 and Change Orders issued on or after the effective date of the Contract.
1.7 Defective - An adjective which when modifying the Work refers to Work that is
defective under Applicable Building Codes and General Industry Standards, 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 fmal payment.
1.8 Design-Build Work - Shall be defmed to include Park and Parking Garage, all
design services associated with and/or necessary to timely construct the code compliant Project and
construction services associated with and/or necessary to timely complete the Project within the
Guaranteed Maximum Price, including, but not limited to, all site related work without limitation,
"\
c)
furnishing all labor and services, the procurement of all equipment and materials reasonably
inferable from the Contract Documents that will be used and/or incorporated into the Project.
1.9 Drawings (also referred to as "Plans") - shall be defmed to mean the "Issued for
Construction" design package, which are signed and sealed by a Florida Licensed Engineer and
which are sufficient to secure a permit, that the CONTRACTOR is obligated to produce to the
complete satisfaction of the CITY and which is deemed one hundred percent (100%) complete for
the construction of the entire Project.
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 Extra Work - shall be defined to mean work totally outside the scope of the
Drawings, Specifications and/or the contemplation of the Contract Documents. All extra work
shall require an executed change order from the designated official authorized to provide the
approval. Any Extra Work performed by the CONTRACTOR without the CITY'S prior written
approval shall not be compensable without exception. Any waiver of this provision must be in
writing and signed by both Parties and in no event shall such written waiver extend to any
subsequent event.
1.12 Field Order - A written order issued by City Manager or designee 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 Guaranteed Maximum Price - shall be defmed to mean that the CONTRACTOR
warrants and guarantees that the maximum price to the CITY for all of the Design-Build Work on
the Project shall be Ten Million Dollars ($10,000,000.00) (hereinafter referred to as "GMP" and/or
"Contract Price"). The GMP is deemed to include costs, fees, prices, expenses, overhead, profit,
including all sales, use, consumer and other taxes mandated by applicable law, and any escalation
associated therewith with respect to all equipment material and labor through the completion of the
entire Project. A portion of the GMP shall be attributed to the design phase of the Project and the
remainder attributed to the construction phase.
1.14 Notice of Award - The written notice by CITY to the CONTRACTOR stating that
the CONTRACTOR is awarded the privilege to design and construct the Project on the condition
that the Parties are able to negotiate, to the CITY'S complete satisfaction, and execute an
Agreement for the design and construction of the entire Project.
1.15 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
the design and construction phases under this Agreement.
1.16 Specifications - Shall be defmed to mean the written technical descriptions, that
accompany the Drawings of all materials, equipment and other construction systems, including the
quantity and quality associated therewith, as well as other standards and workmanship as applied to
3
the Work and certain administrative details applicable thereto that the CONTRACTOR is obligated
to prepare to the complete satisfaction of the CITY which is deemed one hundred percent (100%)
complete for the construction of the entire Project
1.17 Proiect - The Project means the total and complete design and construction a Park
and a three hundred eight (308) space Parking Garage consistent with structural design and
aesthetic standards of City owned garage located at Heritage Park, associated landscape, irrigation
work, underground drainage system, and as generally described in a schematic proposal submitted
to the CITY on April 21, 2011, and all other incidentals thereto identified by the CITY during the
design and construction phases of the Project which the CITY concludes, at its sole discretion, are
required to be included complete the Project. The schematic proposal is attached hereto as Exhibit
"B", as may be modified in accordance with 5 .1. 3 of this Agreement. .
1.18 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.
1.19
Supplier - A manufacturer, fabricator, supplier, distributor, materialman or vendor.
1.20
Build.
Work - Shall be defmed to include all of the services under the defmition of Design-
1.21 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 City Manager or
designee ordering an addition, deletion or revision in the Work. A Work Change Directive shall
not change the Guaranteed Maximum Price or Time, but demonstrates a desire 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. Notwithstanding the foregoing, the
CONTRACTOR understands and agrees that the decision by the CITY to sign a Change Order is
completely and totally within the CITY'S discretion and that if the CITY decides not to execute a
Change Order, the CONTRACTOR shall not be entitled to recover any compensation whatsoever
for the work performed under the Work Change Directive. The CONTRACTOR understands and
agrees that any work, however characterized, performed by the CONTRACTOR without the
CITY'S prior written approval shall not be compensable, without exception. The CONTRACTOR
intentionally, knowingly and voluntarily waives any claim for unjust enrichment or quantum meruit
with respect to any work performed in the absence of a written Change Order. Any waiver of this
provision must be in writing and signed by both Parties and in no event shall such written waiver
extend to any subsequent event.
1.22 Written Amendment - A written amendment of the Contract Documents, signed by
CITY and CONTRACTOR on or after the Effective Date of the Agreement.
4
)
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 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, Field Orders and Written
Amendments duly delivered after execution of Agreement.
2.2
Entire Agreement and Contract Interpretation.
The Contract Documents comprise the entire agreement between CITY and
CONTRACTOR concerning the Work. This Agreement shall be governed by the laws of the
State of Florida, without regard to its conflict of law provisions. The Contract documents are
intended to be complementary and interpreted in harmony so as to avoid conflict, with the express
qualification that the Contract Documents must be read in such a manner as to afford the greatest
possible protection to the CITY, including, but not limited to, ensuring that all of the Design-
Build Work for the Project is completed within the warranted Guaranteed Maximum Price.
2.3
Amending and Supplementing Contract Documents.
The Contract Documents may be amended to modify the terms and conditions of the
Agreement in one or more of the following ways:
2.3.1 A Change Order;
2.3.2 A Written Amendment;
5
2.3.3 A Work Change Directive.
2.4 Supplements. Minor Variations or Deviations.
CITY will not authorize any Change Orders to the Contract Documents, except in a
manner set forth in this Agreement and 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. 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
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.
2.6
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.
ARTICLE 3 - SCOPE OF WORK
3.1
Scope of Work.
3.1.1 The 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. 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.
3.1.2 The CONTRACTOR agrees to provide each and every item of expense necessary
for the design and construction of the Project in accordance with and within the scope of the
Guaranteed Maximum Price. It is agreed between the Parties that the Contract Documents 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. It is further agreed that
the CONTRACTOR warrants that any and all Work, materials or equipment that may reasonably
be inferred from the Contract Documents as being required to produce the intended result will be
supplied by the CONTRACTOR at its own costs within the Guaranteed Maximum Price, whether
or not specifically called for. The CONTRACTOR warrants and accepts that any and all repair
work required during the construction phase, irrespective of the cause, shall be deemed the
responsibility of the CONTRACTOR and included in the Guaranteed Maximum Price. The
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CONTRACTOR warrants and accepts that any and all work necessitated by inspections which is
not prescribed in the Plans or Specifications, but necessitated to bring the project into conformity
with the Contract Documents and all applicable laws, codes, regulations, procedures and/or
considered inside the contemplation of the Contract Documents shall be deemed the responsibility
of the CONTRACTOR and included in the Guaranteed Maximum Price. The CONTRACTOR
warrants and accepts that all other work of any kind, however characterized, not prescribed in the
Plans or Specifications, but necessitated to bring the project into conformity with the Contract
Documents and all applicable laws, codes, regulations, procedures and/or considered inside the
contemplation of the Contract Documents shall be deemed the responsibility of the
CONTRACTOR and included in the Guaranteed Maximum Price. Finally, the CONTRACTOR
accepts, understands and agrees that this provision of the Agreement is a material inducement for
the CITY to enter into this Agreement and that the CITY has indeed relied on this particular
provision in making its decision to enter into this Agreement.
ARTICLE 4 - CONTRACT TIME
4.1
Time is of the Essence of this Contract.
CONTRACTOR agrees to obtain site plan approval for the Project from the City
Commission of the City of Sunny Isles Beach no later than December 31, 2011. CONTRACTOR
further agrees to apply for a building permit for the Project with the Building Department City of
Sunny Isles Beach no later than June 30, 2012. The Work shall be shall be substantially completed
no later than Three Hundred Ten (310) days from Notice to Proceed, or the issuance of a
Temporary Certificate of Occupancy ("TCO"), whichever event occurs fIrst. The Notice to Proceed
shall be issued for the construction of the Project upon the submittal of a application for building
permit for the Project or the approval of 90% percent design by the CITY, whichever occurs fIrst.
The CONTRACTOR shall commence on site construction of the Project no later than ninety (90)
days after the City's issuance of the Notice to Proceed. 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.
ARTICLE 5 CONTRACT SUM - GUARANTEED MAXIMUM PRICE
5.1
Guaranteed Maximum Price.
5.1.1 CITY shall pay CONTRACTOR in current funds as full compensation for the
performance of all the Work for the design and construction of the Project which shall consist of a
Park and a three hundred eight (308) space Parking Garage which is 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 ($10,000,000.00) Ten
Million Dollars (the "Guaranteed Maximum Price"). This Article is subject to the tenns and
conditions of Section 5.1.3 below.
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5.1.2 The initial sum total of ($950,000.00,) Nine Hundred Fifty Thousand Dollars shall
be attributed to the design phase, with the remaining amount attributed to the construction phase.
Ownership in the signed and sealed 100% "Issued for Construction" set of Plans and Specifications
shall vest in the CITY once a permit is issued to commence construction.
5.1.3 The CONTRACTOR understands that the CITY is concerned with ensuring that an
Acceptable Vendor is found to lease the high-end restaurant space to be constructed as part of the
Project in accordance with a Lease/Development Agreement. To that end, the CONTRACTOR
agrees and warrants that it shall be the CONTRACTOR'S responsibility to locate and secure a
vendor, acceptable to the CITY, to occupy the high-end retail restaurant space within six months
from the date that this Agreement is signed or approved by the City Commission. Notwithstanding
anything to the contrary in this Agreement, the CONTRACTOR agrees that if the CONTRACTOR
is unable to locate and secure such a vendor, that the CITY shall have the absolute right to convert
to park area the 60,000 square feet of land leased ("Premises") to the CONTRACTOR. If the
Premises is converted to open space/park, the CITY agrees to pay CONTRACTOR the sum of
Seven Hundred Thousand Dollars ($700,000.00) for the design and construction of the Premises
into a great lawn identical to the great lawn reflected in the Project. The scope of the Project shall
be expanded to include the additional park area, and the Guaranteed Maximum Price shall be
increased to reflect the $700,000.00 for the design and construction of the Premises into a great
lawn.
ARTICLE 6 CONTRACTOR'S RESPONSffiILITIES
6.1
Responsibilities - Construction Phase.
6.1.1 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.
6.1.2 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
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 authority in
awarding subcontractors and purchase orders.
6.1.3 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 is also subject to further reduction by an amount
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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 Extra Work as may be documented in a City Commission approved Change Order[ s].
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 direct and indirect costs associated
with the design and construction phases of the Project, including but not limited to, procurement of
materials and equipment, labor, overhead, profits, contingency, permits, insurance, performance
and payment bonds, utilities, fees, and taxes.
6.3
Administration.
6.3.1 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.
6.3.2 The CONTRACTOR shall provide monthly written reports to the CITY and
designated consultants on the progress of the entire Work.
6.3.3 The CONTRACTOR may 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 prepare preliminary design documents consIstmg of
preliminary drawings, specifications and other documents to fIx and describe the size, quality,
quantity and characters of the Work, its architectural, structural, mechanical and electrical systems
and the materials and other elements of the Work.
6.4.1.1 CONTRACTOR shall submit the preliminary design documents to
CITY for review and authorization to proceed with the fmal design preparation. The
CONTRACTOR understands and agrees that the CITY, may at its sole discretion, require changes
to the preliminary design. All such changes shall be made at the sole and exclusive cost of the
CONTRACTOR and be deemed part of the Guaranteed Maximum Price, except for changes
outside the scope of the Work Upon authorization from the CITY to proceed with the
commencement of the entire design, CONTRACTOR shall begin to prepare drawings, schedules,
specifications, technical criteria, written descriptions, design data, construction documents and
diagrams setting forth in detail the requirements for the complete construction of the Work. The
preparation of this work shall be done in three phases: 30% thirty percent, 60% sixty percent and
90% ninety percent.
6.4.1.2
The design servIces shall be performed by qualified architects,
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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.
6.4.1.3 CONTRACTOR shall prepare and submit for review to the CITY a
30% design package consisting of drawings and specifications for the site work, foundations,
utilities, irrigations systems and other related incidentals.
The CONTRACTOR understands and agrees that the CITY, may at its sole
discretion, require changes to the 30% percent design. All such changes shall be made at the sole
and exclusive cost of the CONTRACTOR and be deemed part of the Guaranteed Maximum Price,
except for changes outside the scope of the Work CONTRACTOR understands and agrees that any
information provided to it by the CITY as to any aspect of the Project is not guaranteed. In
particular, and without limiting the foregoing disclaimer, identifying the location of existing utilities
shall be the CONTRACTOR'S responsibility including identifying the location, character and
depth of the existing utilities. Extreme caution shall be exercised by the CONTRACTOR to
eliminate any possibility of any damage to utilities resulting from the CONTRACTOR'S activities.
Any and all such damage shall be the responsibility of the CONTRACTOR and all work associated
with repairs related to such damage shall be completed to the CITY'S satisfaction and at the sole
and exclusive cost of the CONTRACTOR and be deemed part of the Guaranteed Maximum Price.
The location of all overhead utilities shall be verified. The CONTRACTOR shall be responsible for
determining which poles will need shoring during excavation and shall provide such shoring and
support as is required. The CITY'S review of the design plans shall not be deemed an acceptance
of the plans nor be deemed a pre-approval related to the permitting process that the plans will be
required to undergo with the Building Department.
6.4.1.4 CONTRACTOR shall prepare and submit for review to the CITY a
60% design package consisting of drawings and specifications for the structural, architectural and
landscaping portion of the Project.
The CONTRACTOR understands and agrees that the CITY, may at its sole
discretion, require changes to the 60% percent design. All such changes shall be made at the sole
and exclusive cost of the CONTRACTOR and be deemed part of the Guaranteed Maximum Price,
except for changes outside the scope of the Work. CONTRACTOR understands and agrees that
any information provided to it by the CITY as to any aspect of the Project is not guaranteed. The
CITY'S review of the design plans shall not be deemed an acceptance of the plans nor be deemed a
pre-approval related to the permitting process that the plans will be required to undergo with the
Building Department.
6.4.1.5 CONTRACTOR shall prepare and submit for review to the CITY a
90% design package consisting of drawings and specifications for the mechanical, plumbing,
electrical, equipment, instrumentation and all other related work necessary to have a fully functional
and completed Project.
The CONTRACTOR understands and agrees that the CITY, may at its sole
discretion, require changes to the 90% percent design. All such changes shall be made at the sole
and exclusive cost of the CONTRACTOR and be deemed part of the Guaranteed Maximum Price,
except of changes outside the scope of the Work CONTRACTOR understands and agrees that any
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information provided to it by the CITY as to any aspect of the Project is not guaranteed. The
CITY'S review of the design plans shall not be deemed an acceptance of the plans nor be deemed a
pre-approval related to the permitting process that the plans will be required to undergo with the
Building Department.
6.4.1.6 CONTRACTOR shall prepare and submit for review to the CITY an
"Issued for Construction" design package, which necessarily includes Plans and Specifications, that
the CONTRACTOR is obligated to produce to the complete satisfaction of the CITY which is
deemed one hundred percent (100%) complete for the construction of the entire Project, which are
signed and sealed by a Florida Licensed Engineer and which are sufficient to secure a permit for the
construction of the entire Project. The CITY shall not make any changes to the Plans and
Specifications at 100% percent design if CONTRACTOR satisfies all comments made by the CITY
at 90% percent design. The CITY'S review of the design plans shall not be deemed an acceptance
of the plans nor be deemed a pre-approval related to the permitting process that the plans will be
required to undergo with the Building Department. The construction phase of the Project shall not
commence until the Building Department has issued a permit based on the 100% "Issued for
Construction" design package.
6.4.2 Once the 100% completed "Issued for Construction" design package has received a
permit from the Building Department to commence construction, these Drawings and
Specifications shall then be considered part of the Contract Documents.
6.4.3 The CONTRACTOR agrees that any and all revisions that the Building Department
may require to the "Issued for Construction" Drawings and Specifications shall be the responsibility
of the CONTRACTOR and be so revised at the sole and exclusive cost of the CONTRACTOR and
be deemed part of the Guaranteed Maximum Price.
6.4.4 The CONTRACTOR shall provide to CITY three (3) record sets and three (3)
working sets of full size prints of the Drawings and 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 [mal set of approved design computations to the CITY. The
computations shall be bound in an 8 1/2" by 11" format and shall be endorsed (seal/signature as
appropriate) by CONTRACTOR.
6.4.5 All [mal 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. Notwithstanding the foregoing, CONTRACTOR agrees to provide at least
ten (10) days notice to the City Manager prior to submittal of any plans, or drawings for review by
the Building Department.
6.5
Liability for use of Work for Intended Purpose.
As an inducement for CITY to enter into this Agreement, CONTRACTOR
represents that it has expertise in professional design services and the construction of public
construction projects by qualified and licensed general construction contractors. The
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CONTRACTOR'S expertise includes estimating the total costs associated with the fmal completion
of an entire design-build job. Such costs associated with the estimation and calculation, include,
but are not limited to, consideration of material, equipment and labor and the escalation of the costs
of each in association with the realistic estimated duration of the project, the time of year, the
weather patterns associated with the location of the project, the labor market for the design and
construction associated with the location of the project, the type of facility, and consideration of the
time associated with the design and permitting (including all associated delays that accompany a
review through a municipal building department) of a complete set of plans and specifications. In
reliance upon the above referenced representations, the CITY hired the 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 City Manager.
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 be deemed an
acceptance of the shop drawings 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.
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
(defmed 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.
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.
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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 new and of
good quality and that the work will be free from defects in material and workmanship 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.
6.11 Concerning Subcontractors. Suppliers. and Others.
6.11.1 Prior to the commencement of each phase of the Work hereunder, upon request,
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 seven (7)
business days from the date of receipt of the written notice 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.
6.11.3 Nothing in the Contract Documents shall create any Contractual relationship
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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.
6.11.4 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.
The CONTRACTOR agrees that it shall obtain and pay for all permits, approvals,
licenses, government charges and inspection fees as reasonably inferable from the Contract
Documents that will be required to complete the Project, except permit fees or other fees charged
by the CITY.
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 Final
Completion and acceptance of the Project. Title to the Work shall pass to CITY upon Final
Completion and 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
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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. CITY hereby agrees to promptly purchase any materials requested by
CONTRACTORS pursuant to this Section. The CITY and CONTRACTOR shall develop a list of
items or materials that can be purchased under section 6.16.
6.17 Use of Premises.
6.17.1 CONTRACTOR shall confme 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 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
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 shall advise
them of CONTRACTOR'S site safety procedures and programs so that they may comply therewith.
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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.
6.20.1 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 any and all claims,
damages, losses and expenses, including but not limited to attorneys' fees, arising out of or related
to and/or resulting from performance of the Work. These indemnification obligations shall include
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/or (2) to the extent such claims, damages, losses or expenses are
caused in whole or in part by negligent acts or omissions of the CONTRACTOR'S, anyone directly
or indirectly employed by 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.
6.20.2 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, fmes 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
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person, fIrm, or corporation. 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. 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 fmal 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 and indirect costs of such correction or removal (including but not limited to fees and
charges of engineers, architects and other professionals) made necessary thereby.
ARTICLE 7 - CITY'S RESPONSffiILITIES
7.1 CITY shall furnish data required of CITY under the Contract Documents promptly.
The CONTRACTOR understands and agrees that any information provided to it by the CITY as to
any aspect of the Project is not guaranteed.
7.2 CONTRACTOR shall secure all 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.
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ARTICLE 8 - CITY MANAGER
8.1 City Manager will be CITY'S contact person during the construction period and
until fmal payment is due to CONTRACTOR.
8.2
Visits to Site.
City Manager may, at the City Manager's sole discretion, make visits to the site to
observe the progress and quality of the executed work.
8.3
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.
8.4
Reiecting Defective Work.
If City Manager becomes aware of any fault or default in the Work, he may give
written notice thereof to CONTRACTOR. The failure to provide notice shall not waive the
warranty of the CONTRACTOR that the work is to be free of defect whether latent or patent.
ARTICLE 9 - BUILDING DEPARTMENT'S RESPONSffiILITIES
9.1 It is understood and agreed by the CONTRACTOR that the Building Department
and its inspectors are professionals who are dedicated to providing efficient and courteous service
to all residents, professionals, contractors and the public at large through plans processing,
inspections and building maintenance, which ensures the protection of the citizens and enhances
the quality of life within the CITY. For the purposes of this Project the Building Department is
not a surrogate of the CITY. All decisions by the Building Department as to whether some aspect
of the Project is or is not in compliance with the Florida Building Code, Florida Fire Prevention
Code and/or any other applicable codes, regulations, laws and ordinances are independent of and
not deemed to be an act or decision by the CITY. The CONTRACTOR agrees that it shall be the
responsibility of the CONTRACTOR to ensure compliance with all applicable codes, regulations,
law and ordinances. As noted in Article 3 of this Agreement the CONTRACTOR warrants and
accepts that any and all work necessitated by inspections which is not prescribed in the Plans or
Specifications, but necessitated to bring the project into conformity with the Contract Documents
and all applicable laws, codes, regulations, procedures and/or considered inside the contemplation
of the Contract Documents shall be deemed the responsibility of the CONTRACTOR and included
in the Guaranteed Maximum Price.
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ARTICLE 10 - BONDS AND INSURANCE
10.1 Payment and Performance Bonds.
10.1.1 Within fIfteen (15) calendar days after Notice of Award and in any event prior to
commencing work, the CONTRACTOR shall execute and furnish to CITY a performance bond
and a payment bond in a form acceptable to the CITY, 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., Arnbest Road, Oldwick, 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.
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10.2 Bonds. Reduction After Final Payment.
Such bonds shall continue in effect for one (1) year after fmal 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 fmal payment to an amount equal to fifty percent (50%) 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 fmal
completion of the Contract, upon notification by the CITY. Notwithstanding the foregoing, after
fmal payment, the CONTRACTOR may request reduction in the bond to 10% of all monies
previously earned and all monies earned there after.
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
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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
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/100 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
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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-D)
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
thousand and 00/1 00 dollars ($5,000.00) per claim.
10.4.4 CONTRACTOR shall maintain the ProductslCompleted 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 A.M. 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 protects 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.
10.4.10 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 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.
10.4.12 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
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to CITY upon request of CITY. Notwithstanding the foregoing, the CONTRACTOR may provide
insurance for subcontractors.
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. Notwithstanding the
foregoing, the CONTRACTOR shall be given thirty (30) days to cure any breach.
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 - WARRANTIES; 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 Warranty of Merchantability.
CONTRACTOR warrants that any and all equipment to be supplied pursuant to the
Agreement is new, 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 (I)
year from the date that CITY accepts occupancy of the parking garage and park. If within one (l)
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
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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, 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 the City Manager and Building Department timely
notice of readiness of the work for all required inspections, tests or approvals. . CONTRACTOR
shall assume full responsibility, pay all costs, except for permit fees or other fees imposed by the
CITY, in connection therewith and furnish the Building Department, with courtesy copies to the
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 do have the full authority to order the CONTRACTOR to comply with
all applicable codes. The CONTRACTOR shall be responsible for complying with all inspections
and all costs associated therewith shall be deemed the responsibility of the CONTRACTOR and
included in the GMP.
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
DELAYS. 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. 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 (including strong storms, tropical storms and/or hurricanes which are
common between June I and November 30), 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 which necessarily excludes strong storms, tropical storms and/or hurricanes
which are common between June I and November 30.
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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
12.3.1 The CONTRACTOR understands that ifthe Project or the Work is not substantially
completed within Three Hundred Ten (310) days from the date of the Notice to Proceed, then the
CITY will suffer damages which are difficult to determine and accurately specify. As such,
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.
12.3.2 Upon failure of CONTRACTOR to complete the Work within the time specified for
the substantial completion of the Project (plus approved extensions if any), CONTRACTOR shall
pay to CITY the sum of Two Thousand dollars ($2,000.00) for each and every calendar day beyond
the time specified in this Agreement for completion, as fixed and agreed liquidated damages and
not as a penalty. The Liquidated Damages shall apply regardless of whether or not a single Contract
is involved and 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.
12.4 Delay.
Any delay caused by the CITY shall extend the date for substantial completion date by the
number of days that resulted from the delay.
ARTICLE 13 - CHANGES IN THE WORK, RESTRICTIONS AND LIMITATIONS
13.1 After the Plans and Specifications have been approved for construction by the
Building Department, the 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 or Change Order.
13.2 All Change Orders which, individually or when cumulatively increase the cost of
the work, 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
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been obtained. The CONTRACTOR understands and agrees that any work, however characterized,
performed by the CONTRACTOR without the CITY'S prior written approval shall not be
compensable, without exception. The CONTRACTOR intentionally, knowingly and voluntarily
waives any claim for unjust enrichment or quantum meruit with respect to any work performed in
the absence of a written Change Order. Any waiver of this provision must be in writing and signed
by both Parties and in no event shall such written waiver extend to any subsequent event.
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.
13.5 The 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.
13.6 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.
13.7 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 not later than ten
(10) 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.
13.8 CONTRACTOR understands and agrees that any information provided to it by the
CITY, at any time, as to any aspect of the Project is not guaranteed. The CONTRACTOR is solely
liable for all site conditions, including those that are subsurface or otherwise concealed physical
conditions which may differ, materially or not, from those the CONTRACTOR encountered during
its initial site inspection. Upon identifying subsurface physical conditions that do differ materially
from those identified during the CONTRACTOR'S initial inspection, the CONTRACTOR shall
notify CITY immediately. The CONTRACTOR shall promptly investigate such conditions and, if
the CITY agrees that the concealed physical conditions could not have been detected through a
reasonable inspection, then the CONTRACTOR shall be entitled to an extension of time for the
completion of the Project as its sole remedy. The CONTRACTOR accepts that any costs or
expense associated with any differing site conditions encountered shall be the responsibility of the
CONTRACTOR and included in the Guaranteed Maximum Price.
ARTICLE 14 - NO CHANGES 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 its
expense without change in the Guaranteed Maximum Price.
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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 the other Party (but in no event later than ten (1 0) days)
after the occurrence of the event giving rise to the amount of the claim, along with supporting data
which shall be delivered within twenty (20) days after the occurrence of the event giving rise to the
amount of the claim and shall be accompanied by claimant's written statement that the amount
claimed covers all known amounts (direct, indirect and 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. The CONTRACTOR understands and agrees that the CITY shall have the
right and discretion to deny the approval of any Change Order, for any reason, despite the
CONTRACTOR'S compliance with this Paragraph and/or the existence of an executed written
Work Change Directive. If the CITY decides not to approve a Change Order for the work, then the
CONTRACTOR will not be entitled to receive compensation under any theory of recovery whether
at law or in equity.
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.
14.4
Cost Breakdown Required.
Whenever the cost of any Work is to be determined, CONTRACTOR will submit in
form acceptable to City Manager 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. 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 during construction phase.
15.1.1 CONTRACTOR may requisition payments for Work completed during the project
at intervals of not more than once a month. The CONTRACTOR shall submit a proposed schedule
of values in a form acceptable to the CITY and which will be required to be approved by the CITY
before any design Work on this Project can commence. The proposed schedule of values shall be
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broken into two phases for design and for construction.
Once approved all applications for payment shall be submitted in a form that shows 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 CITY. Each requisition shall be submitted in
triplicate to the CITY for approval; CITY shall have fifteen (15) days to approve or disapprove the
requisition. If the requisition in not approved, the reasons therefore shall be stated with particularity.
The CITY shall make payment to the CONTRACTOR within fifteen (15) calendar days after
approval by the CITY 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. After fifty percent (50%) of the Work
has been completed, the CONTRACTOR may request reduction in the retainage to five percent
(5%) of all monies previously earned and all monies earned thereafter.
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 City
Manager and delivered all maintenance and operating instructions, schedules, guarantees, bonds,
certificates of inspection and other documents required by the Contract Documents, and after City
Manager 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
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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 City Manager they do not
represent correct or accurate "As-built" drawings.
15.4
Final Payment and Acceptance.
15.4.1 If the Work is not acceptable to the CITY, then the CITY shall indicate the reasons
for refusing to make final payment, in which case CONTRACTOR shall make the necessary
corrections or compliance and resubmit the Application for payment. If the CITY is satisfied that
the Work has been completed in accordance with the Contract Documents and the
CONTRACTOR'S other obligations under the Contract Documents have been fulfilled, the CITY
will agree to make the final payment.
15.4.2 If, through no fault of CONTRACTOR, final completion of the Work is
significantly delayed, CITY may consider making 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 may be submitted by CONTRACTOR
for such payment. The CITY may consider making such payment under the terms and conditions
governing final payment, except that it shall not constitute a waiver of claims.
15.5 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, and this Agreement fully performed. 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.
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.
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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 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 anyone 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.
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.
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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), provided that CONTRACTOR is provided thirty (30) days to cure any breach.
16.1.7 If CONTRACTOR disregards laws or regulations of any authority with 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, terminate the services of
CONTRACTOR without any liability, of any kind, accruing to the to the CITY and without
prejudice to any right or remedy the CITY may have, and exclude the 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. Notwithstanding the foregoing, the CONTRACTOR is provided with thirty
(30) days to cure any breach.
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16.2 Termination for Reasons Other Than Breach of the Agreement:
16.2.1 Upon seven (7) days written notice to CONTRACTOR, CITY may, with
cause, without liability of any kind and without prejudice to any other right or remedy, terminate
this agreement for CITY'S reasons that are other than a breach of this Agreement. In such a case,
the reasons should be clearly stated and shall be capable of cure by CONTRACTOR. Said written
notice shall provide CONTRACTOR with a reasonable time in which to cure the reason(s) for the
termination. This provision is different from the right to terminate set out in other parts of this
Agreement. Where the agreement is terminated for these reasons, the notice of termination to
CONTRACTOR must state that the Agreement is being terminated for the stated reason(s) under
the termination clause and the effective date of the termination if not cured by CONTRACTOR.
Upon receipt of the notice of termination and a failure to cure by CONTRACTOR,
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 Agreement, and refrain from placing further orders
and Subcontracts. 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 the event of a
termination under this provision, the CITY shall pay to the CONTRACTOR only those direct costs
associated with all Work actually completed. The CONTRACTOR shall be obligated to support its
costs with back-up documentation to the CITY'S satisfaction. NOTWITHSTANDING
ANYTHING TO THE CONTRARY IN THIS AGREEMENT, THE CITY SHALL NOT BE
LIABLE TO THE CONTRACTOR FOR ANY DIRECT, INDIRECT, SPECIAL ANDIOR
CONSEQUENTIAL LOSSES OR DAMAGES WHETHER ARISING IN AGREEMENT,
WARRANTY, TORT (INCLUDING NEGLIGENCE) STRICT LIABILITY OR ANY OTHER
CAUSE OF ACTION AT LAW OR IN EQUITY, INCLUDING BUT NOT LIMITED TO
LOSSES OF USE, PROFITS, BUSINESS, REPUTATION OR FINANCING.
16.2.2 Once the Plans and Specifications for this Project receive a permit to
commence construction, the ownership in the Plans and Specifications shall vest with the CITY. In
the event CITY terminates the Agreement and proceeds to design and construct the Project through
its employees, agents or other third parties, CONTRACTOR shall remain fully liable for the design
of the Plans and Specifications and the CITY shall retain all its rights and remedies related thereto.
16.3 Termination by CONTRACTOR.
If CITY fails to make payment thereon for a period of sixty (60) calendar days from
payment submittal, 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 Non-Binding Mediation.
16.4.1 Non-Binding Mediation. In the event a dispute arises, either Party may request that
the other party attend non-binding mediation. Mutual written consent is required for the non-
binding mediation to take place. To the extent that mediation does occur, the CONTRACTOR is
obligated to continue to perform the Work and the CITY shall continue to satisfy its payment
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obligations pending the resolution of the mediation. Before requesting mediation, the parties shall
first attempt to resolve the dispute amicably.
16.4.2 Scope of Dispute Review. Any controversy or claim arising out of or relating to this
Agreement or any breach of it may be subject to review under these non-binding dispute resolution
procedures.
16.4.3 Mediator. The Parties agree that any mediator shall be jointly selected.
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 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 information (including
rules relating thereto), then the mediator shall make a determination as to the scope and nature of
the exchange.
16.4.6 Proceeding Costs and Fees. All parties participating in the non-binding 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.
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.
In the absence of a written consent accepting the mediator's decision, the decision shall have no
force or effect whatsoever.
16.4.8 Florida LawN enue/Jurisdiction. This Agreement shall be governed by the laws
of the State of Florida, without regard to its conflict of law provisions. The Parties hereto hereby
submit to the exclusive jurisdiction of the state and federal courts located in Miami-Dade
County, Florida for any action or proceeding arising out of or relating to this Agreement and the
Parties hereto hereby agree that all claims in respect of such action or proceeding shall be heard
and determined exclusively in any such state or federal court.
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16.4.9 Attorneys' Fees. In the event of any dispute ansmg under or related to this
Agreement, the prevailing party shall be entitled to recover all actual attorney fees, costs and
expenses incurred by it in connection with that dispute and/or the enforcement ofthis Agreement,
including all such actual attorney fees, costs and expenses at all judicial levels, including appeal
until such dispute is resolved with finality.
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:
Alan J. Cohen, 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
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.
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17.3
Force Maieure.
Should any party fail to perform its obligations under this Agreement due to a
condition of force majeure, as that term is interpreted under Florida Law, and specifically including
but not limited to Acts of God (including hurricanes, tropical storms and/or very strong storms
which are anticipated by the Parties and taken into consideration when the CONTRACTOR agreed
to the substantial completion date) fire, flood, earthquakes, then the time for performance of said
obligation hereunder will be extended by a period reasonable commensurate with the cause of such
failure to perform or cure. If the Contractor is delayed in performing any obligation under this
agreement due to a force majeure condition, the CONTRACTOR shall request a time extension
from the CITY within ten(10) working days of said force majeure occurrence. Any time extension
shall be subject to mutual agreement and shall not be cause for any claim by the CONTRACTOR
for extra compensation. Events of force majeure do not include acts or omissions of sub-
contractors.
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.
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18.5 The validity, construction and effect of this Contract shall be governed by the laws
of the State of Florida. In the event of a dispute arising under or related to this Agreement it shall
be filed in the Eleventh Judicial Circuit in and for Miami-Dade County, Florida.
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.
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IN WITNESS WHEREOF, CITY and CONTRACTOR have signed this Agreement in triplicate.
~A:L
Jane A. Hines, CMC, City Clerk
"
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,
LLC, a Florida limited liability
By: Joseph Milton
Title: Manager
State of Florida )
)ss:
County of Miami-Dade )
On this, th~~ day of :r ~_, 2011, before me, the undersigned Notary Public of the
State of Floridjl, the foregoing instrument was acknowledged by
-SO~~'" \..,rl\lOr-,) (name of officer), \--'\O\n~.e.y (title), of 4M
Investors, LLC, a Florida liability, on behalf of the corporation, who is personally known to me or
has produced as identification.
.~
y '^ \\A..L
otary Public, State of Florida
My Commission Expires: \\\ \~'l,.olt
:r ~.s."" \ \A.L l. ~ j.V("rtL&
Printed, typed or stamped name
of Notary Public
~~ JASMINE L. BARNES
~ MY COMMISSION /I EE25472
"'",,:; EXPIRES: November 18, 2014
I.aoo.l-NOTAAV Fl. NaIll)' ou-.. Aaoc. Co.
38
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 - in a form acceptable to the CITY and to be
supplied by CONTRACTOR prior to the commencement of construction.
2.1.3 Construction Payment Bond - in a form acceptable to the CITY and to be supplied
by CONTRACTOR prior to the commencement of construction.
2.1.4 Drawings and Outlines Specifications - to be supplied by CONTRACTOR and
reviewed 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 A ward and Notice to Proceed - to be supplied by the CITY.
2.1.7 Clarifications and Exclusions, if any.
2.1.8 All applicable provisions of Federal, State 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 this Agreement.
2.1.9 Any modification, including all Change Orders and Written Amendments - none in
existence as of the date hereof, but will form part of the Contract Documents.
39
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
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EXHIBIT "B"
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