The URL can be used to link to this page

342-2000 RDA RESOLUTION 342-2000 A RESOLUTION OF THE CHAIRMAN AND MEMBERS OF THE MIAMI BEACH REDEVELOPMENT AGENCY, AUTHORIZING THE ADMINISTRATION TO ISSUE A REQUEST FOR QUALIFICATIONS FOR THE LEASING AND MANAGEMENT OF THE RETAIL COMPONENT OF THE ANCHOR SHOPS AND PARKING GARAGE. WHEREAS, On July 17th, 1996, the Miami Beach Redevelopment Agency (RDA), the St. Moritz Hotel Corporation (Loews), and Miami Beach Redevelopment, Inc., (Loews), executed a Lease Agreement, Hotel Development Agreement, and other related agreements for the development and operation of the Loews Miami Beach Hotel; and WHEREAS, the Development Agreement provided for the development of the Anchor Shops and Parking Garage, and a Retail Space Master Lease Agreement provided for the leasing and management of the Anchor Shops; and WHEREAS, at the RDA meeting on July 7, 1999, the Administration reported that Loews was willing to reduce its Developer's Fee in order to resolve certain outstanding issues relative to the construction of the garage, including but not limited to, substitution of the storefront system and window tinting; and WHEREAS, at the RDA meeting on November 17, 1999, the RDA authorized the Administration to enter into a Settlement Agreement between the RDA and Loews, providing for a $140,000 reduction in the Developer's Fee, payable to Loews in accordance with the Anchor Garage Development Agreement, in exchange for terminating Loews' obligations under the Retail Space Master Lease Agreement; and WHEREAS, with the reversion of the Master Lease Agreement, the RDA Board deems it in the best interest of the RDA to engage a property management firm, to procure and negotiate new leases, manage existing leases, and provide certain maintenance and repairs, as called for in the lease agreements with the tenants, and the Garage Easement Agreement between the RDA and Loews; and NOW, THEREFORE BE IT DULY RESOLVED BY THE CHAIRMAN AND MEMBERS OF THE MIAMI BEACH REDEVELOPMENT AGENCY, that the Chairman and Members of the Miami Beach Redevelopment Agency authorize the Administration to issue a Request for Qualifications for the leasing and management of the retail component of the Anchor Shops and Parking Garage. A T1TEST: 1 \ li/ P. tL\ \.) \lllCL~tl SECRETARY APPROVED AS TO FORM & LANGUAGE & FOR EXECUTION ~ PASSED AND ADOPTED this 15th day of March, 2000 CHAIRMAN T:\Agenda\2000\RDA\anchrfp.res ,j;!l Jj~t~ Redevelopment Agency G., ":!T/! C::>'.i.~:.!!! --:;> .) . .~ . Ie) -C.~/ Dote : ~-j ~ ~ IJ MIAMI BEACH REDEVELOPMENT AGENCY RFQ NO. 00/00 REQUEST FOR QUALIFICATIONS FOR LEASING AND MANAGEMENT OF THE RETAIL COMPONENT OF THE ANCHOR SHOPS AND PARKING GARAGE A PRE-PROPOSAL CONFERENCE IS SCHEDULED FOR 10:00 AM ON MARCH _, 2000, IN THE _ CONFERENCE ROOM AT CITY HALL, 1700 CONVENTION CENTER DRIVE, MIAMI BEACH, FLORIDA. PROPOSALS ARE DUE AT THE ADDRESS SHOWN BELOW NO LATER THAN 3:00 P.M. APRIL 14,2000 CITY OF MIAMI BEACH PROCUREMENT DMSION 1700 CONVENTION CENTER DRIVE, THIRD FLOOR MIAMI BEACH, FL 33139 FAX: (305) 673-7851 RFQ NO.: DATE: 00/00 3/16/00 MIAMI BEACH REDEVELOPMENT AGENCY 1 T ABLE OF CONTENTS Page I. OVERVIEW AND PROPOSAL PROCEDURES 5-10 II. SCOPE OF SERVICES 11 ill. PROPOSAL FORMAT 12-13 IV. EV ALUA TION/SELECTION PROCESS; CRITERIA FOR EV ALUA TION 14-15 V. GENERAL PROVISIONS 16-17 VI. SPECIAL TERMS AND CONDITIONS 18 VII. ATTACHMENTS 19 VIII. DOCUMENTS TO BE COMPLETED AND RETURNED TO CITY 20-29 RFQ NO.: DATE: 00/00 3/16/00 MIAMI BEACH REDEVELOPMENT AGENCY 2 CITY OF MIAMI BEACH 1700 CONVENTION CENTER DRIVE, MIAMI BEACH, FLORIDA 33139 http:\\ci.miami-beach.f1.us PROCUREMENT DIVISION Telephone (305) 673-7490 Facsimile (305) 673-7851 MIAMI BEACH REDEVELOPMENT AGENCY RFQ NO. 00/00 Sealed proposals will be received on behalf of the Miami Beach Redevelopment Agency, by the City of Miami Beach Procurement Director, 1700 Convention Center Drive, Miami Beach, Florida, 33139, until 3:00 P.M. on April 14, 2000 for: LEASING AND MANAGEMENT OF THE RETAIL COMPONENT OF THE ANCHOR SHOPS AND PARKING GARAGE At the time, date, and place above, proposals will be publicly opened. Any proposal received after the time and date specified will be returned to the respondent unopened. Package request forms are available by calling City of Miami Beach Procurement Division's DemandStar.com system at (407) 975-3227 and requesting Document #_. Many packages can be downloaded from the Internet. Check the City's site at ..http://www.ci.miami-beach.fl.us.. for download availability and any applicable fees. Vendors registered with DemandStar.com can download packages at no cost from their website - ..http://www.demandstar.com... A Pre-Proposal Conference is scheduled for 10:00 AM on March _, 2000, in the Conference Room, at City Hall, 1700 Convention Center Drive, Miami Beach, Florida. You are hereby advised that this RFQ is subject to the "Cone of Silence," in accordance with Ordinance No. 99-3164. From the time of advertising until the Executive Director of the Miami Beach Redevelopment Agency (RDA), issues his recommendation, there is a prohibition on communication with the City and/or the RDA's professional staff. The Ordinance does not apply to oral communications at pre-bid conferences, if held, oral presentations before evaluation committees, contract discussions during any duly noticed public meeting, public presentations made to the RDA Board and/or the City Commission during any duly noticed public meeting, contract negotiations with the staff following the award of this RFQ by the RDA Board, or communications in writing at any time with any city employee, official, or member of the RDA Board and/or the City Commission unless specifically prohibited. A copy of all written communications must be filed with the City Clerk. Violation of these provisions by any particular bidder or proposer shall render this RFQ award to said bidder or proposer void, and said bidder or respondent shall not be considered for any RFP, RFQ, RFLI or bid for a contract for the provision of goods or services for a period of one year. RFQ NO.: DATE: 00/00 3/16/00 MIAMI BEACH REDEVELOPMENT AGENCY 3 The RDA may, at its sole and absolute discretion, reject any and all, or parts of any and all, responses; re-advertise this RFQ; postpone or cancel, at any time, this RFQ process; or waive any irregularities in this RFQ or in the responses received as a result of this RFQ, as deemed to be in the best interest of the RDA. CITY OF MIAMI BEACH Procurement Director RFQ NO.: DATE: 00/00 3/16/00 MIAMI BEACH REDEVELOPtvlliNT AGENCY 4 SECTION I - OVERVIEW AND PROPOSAL PROCEDURES: A. INTRODUCTION/BACKGROUND The Anchor Shops and Parking Garage (Anchor Place), located on 16th Street between Collins and Washington Avenue, in Miami Beach, was built to meet the parking requirements for the recently opened Loews Miami Beach Hotel and the Royal Palm Crowne Plaza, which is scheduled for completion in early 2001. Anchor Place was developed by St. Moritz Hotel Corporation, an affiliate of Loews Corporation, in accordance with a Garage Development Agreement (one of a number of component agreements to the Hotel Development Agreement between the Miami Beach Redevelopment Agency and Loews Corporation). Anchor Place encompasses an 803-space municipal parking garage and 20,106 square feet of ancillary retail space, fronting on Collins Avenue, Washington Avenue and 16th Street. The garage facility, which has been in operation since mid-December, 1998, is being managed for the Redevelopment Agency by Quik Park of Florida, Inc. The retail space, has, until March, 2000, been subject to a Master Lease Agreement between the RDA and MB Redevelopment, Inc., an affiliate of Loews. Under the terms of the Master Lease Agreement, ME Redevelopment was responsible for marketing the space, negotiating leases, collecting lease revenue and pass-throughs and managing the facility. In exchange, ME Redevelopment retained 5 percent of the lease revenues collected. Pass-through expenses related to leasing and common area maintenance are the responsibility of the RD A. Currently, A total of 16,470 square feet, or 82 percent of the retail space is leased. The tenant mix includes Absolutely Suitable, offering beachlswimwear; Paradizzo/ Bikers Image, offering a combination of motorcycle, weekend and formal attire; Xando's Coffee and Bar; and, Travel Now or Never, a travel/ticketing agency. In September 1999, Fuddruckers executed a lease agreement for the entire west retail space on Washington Avenue, comprising 6,566 square feet. As of the date of this RFQ, the tenant's design team was working on plans for the buildout of the space. It is anticipated that the facility will open before the end of the year. A matrix reflecting the status of each of the existing leases, including information on square footage, rent, lease terms and commission agreements, is included in Section VII of this RFQ. On November 17, 1999, the Board of the RDA authorized the Administration to negotiate and enter into a Settlement Agreement with Loews in order to resolve certain outstanding issues relative to the construction of Anchor Place, As a condition for entering into the Settlement Agreement, Loews requested to terminate its obligations under the Retail Space Master Lease Agreement, which the RDA agreed to, As such, the RDA is seeking qualified property management firms, hereinafter referred to as "Property Manager", to submit bids to lease and manage the retail component of the Anchor Shops and Parking Garage in Miami Beach. RFQ NO.: DATE: 00/00 3/16/00 MIAMI BEACH REDEVELOPMENT AGENCY 5 B. RFQ TIMETABLE The anticipated schedule for this RFQ and contract approval is as follows: RFQ issued March 16,2000 Pre-proposal Conference March _, 2000, at 10:00 a.m. Deadline for receipt of questions Aprill, 2000 Deadline for receipt of proposals April 14, 2000 at 3:00 p. m. Evaluation/Selection process Week of May 1, 2000 Projected award date May 10,2000 Projected contract start date June 1,2000 C. PROPOSAL SUBMISSION An original and six (10 copies of a complete response to each project must be received by Friday, April 14, 2000 at 3:00 p.m. and will be opened on that day at that time, The original and all copies must be submitted to the Procurement Division in a sealed envelope or container stating on the outside, the respondent's name, address, telephone number, RFQ number, Project number, Project title, and due date. The responsibility for submitting a response to this RFQ to the Procurement Division on or before the stated time and date will be solely and strictly that of the proposer. The City will in no way be responsible for delays caused by the U.S. Post Office or caused by any other entity or by any occurrence, PROPOSALS RECEIVED AFTER THE RFQ DUE DATE AND TIME ARE LATE AND WILL NOT BE CONSIDERED. D. PRE-PROPOSAL CONFERENCE A Pre-Proposal Conference is scheduled for 10:00 AM on March 31, 2000, in the Conference Room, at City Hall, 1700 Convention Center Drive, Miami Beach, Florida. RFQ NO.: DATE: 00/00 3/16/00 MIAMI BEACH REDEVELOPMENT AGENCY 6 E. CONTACT PERSON/ADDITIONAL INFORMATION/ADDENDA Requests for additional information or clarifications must be made in wntmg to the Procurement Director no later than the date specified in the RFQ timetable. In order to expedite the receipt of questions and the issuance of clarification addenda, the proposer may submit questions via facsimile at (305) 673-7851. The RDA will issue replies to inquiries and any other corrections or amendments it deems necessary in written addenda issued prior to the deadline for responding to the RFQ. Proposers should not rely on representations, statements, or explanations other than those made in this RFQ or in any addendum to this RFQ. Proposers are required to acknowledge the number of addenda received as part of their responses. The proposer should verify with the Procurement Division prior to submitting a proposal that all addenda have been received. F. PROPOSAL GUARANTY None required G. MODIFICA TIONIWITHDRA W ALS OF PROPOSALS A proposer may submit a modified proposals to replace all or any portion of a previously submitted proposal up until the RFQ due date and time. Modifications received after the RFQ due date and time will not be considered. Proposals shall be irrevocable until contract award unless withdrawn in writing prior to the RFQ due date or after the expiration of one-hundred twenty( 120) days from the opening of proposals. Letters of withdrawal received after the RFQ due date and before said expiration date, and letters of withdrawal received after contract award will not be considered. H. RFQ POSTPONEMENT/CANCELLA TIONIREJECTION The RDA may, at its sole and absolute discretion, reject any and all, or parts of any and all, proposals; re-advertise this RFQ; postpone or cancel, at any time, this RFQ process; or waive any irregularities in this RFQ or in the responses received as a result of this RFQ, as deemed to be in the best interest of the RDA. I. COST INCURRED BY PROPOSERS All expenses involved with the preparation and submission of proposals to the RDA, or any work performed in connection therewith, shall be the sole responsibility of the proposer(s) and shall not be reimbursed by the RD A. RFQ NO.: DATE: 00/00 3/16/00 MIAMI BEACH REDEVELOPMENT AGENCY 7 J. VENDOR APPLICATION Prospective proposers should register with the DemandStar.com (the City's Vendor Database Management firm); this will facilitate the receipt of future notices of solicitations when they are issued. Potential proposers may contact DemandStar.com at (800) 711-1712 or register on-line at www.demandstar.com. It is the responsibility of the proposer to inform DemandStar.com concerning any changes, such as new address, telephone number, or commodities. K. EXCEPTIONS TO THE RFQ Proposers must clearly indicate any exceptions they wish to take to any of the terms in this RFQ, and outline what alternative is being offered. The RDA, after completing evaluations, at its sole and absolute discretion, may accept or reject the exceptions. In cases in which exceptions are rejected, the RDA may require the proposer to furnish the services originally described herein, or negotiate an alternative acceptable to the RDA. L. SUNSHINE LAW Proposers are hereby notified that all information submitted as part of a response to this RFQ will be available for public inspection after opening of proposals, in compliance with Chapter 286, Florida Statutes, known as the "Government in the Sunshine Law", M. NEGOTIA TIONS The RDA may award a contract on the basis of initial offers received, without discussion, or may require proposers to give oral presentations based on their submittal. The RDA reserves the right ',0 enter into negotiations with the selected proposer, and if the RDA and the selected proposer cannot negotiate a mutually acceptable contract, the RDA may terminate the negotiations and begin negotiations with the next selected proposer. This process may continue until a contract whether expressed or implied, has been executed or all proposals have been rejected. No proposer shall have any rights in the subject project or property or against the RDA arising from such negotiations. N. PROTEST PROCEDURE Proposers that are not selected may protest any recommendations for award by sending a formal protest letter to the Procurement Director, which letter must be received no later than five (5) calendar days after award by the RDA Board. The Procurement Director will notify the proposer of the cost and time necessary for a written reply, and all costs accruing to an award challenge shall be assumed by the protester. Any protests received after five (5) calendar days from contract award by the RDA Board will not be considered, and the basis or bases for said protest shall be deemed to have been waived by the protester. RFQ NO.: DATE: 00/00 3/16/00 MIAMI BEACH REDEVELOPMENT AGENCY 8 O. RULES; REGULATIONS; LICENSING REQUIREMENTS Proposers are exp~cted to be or become familiar with and comply with all Federal, State and local laws, ordinances, codes, and regulations that may in any way affect the services offered, including the Americans with Disabilities Act, Title VII of the Civil Rights Act, the EEOC Uniform Guidelines, and all other EEO regulations and guidelines. Ignorance on the part of the proposer will in no way relieve it from responsibility for compliance. P. DEFAULT Failure or refusal of a proposer to execute a contract upon award by the RDA Board, or improper withdrawal of a proposal before such award is made and approved, may result in forfeiture of that portion of any surety required as liquidated damages to the RD A; where surety is not required, such failure may result in a claim for damages by the RDA and may be grounds for removing the proposer from the City's vendor list. Q. CONFLICT OF INTEREST All proposers must disclose with their proposal the name(s) of any officer, director, agent, or immediate family member (spouse, parent, sibling, child) who is also an employee of the RDA and/or the City of Miami Beach. Further, all proposers must disclose the name of any RDA or City employee who owns, either directly or indirectly, an interest of ten (10%) percent or more in the proposer or any of its affiliates. R. COMPLIANCE WITH THE CITY'S LOBBYIST LAWS All proposers are expected to be or become familiar with all City of Miami Beach Lobbyist laws, as amended from time to time. Proposers shall ensure that all City of Miami Beach Lobbyist laws are complied with, and shall be subject to any and all sanctions, as prescribed herein, in addition to disqualification of their proposals, in the event of such non-compliance. S. PROPOSER'S RESPONSIBILITY Before submitting a proposal, each proposer shall make all investigations and examinations necessary to ascertain all conditions and requirements affecting the full performance of the contract. Ignorance of such conditions and requirements resulting from failure to make such investigations and examinations will not relieve the successful proposer from any obligation to comply with every detail and with all provisions and requirements of the contract documents, nor will it be accepted as a basis for any claim whatsoever for any monetary consideration on the part of the proposer. RFQNO.: DATE: 00/00 3/16/00 MIAMI BEACH REDEVELOPMENT AGENCY 9 T. RELATION OF CITY AND/OR THE RDA It is the intent of the parties hereto that the successful proposer be legally considered as an independent contractor and that neither the proposer nor the proposer's employees and agents shall, under any circumstances, be considered employees or agents of the City and/or the RDA. U. PUBLIC ENTITY CRIME A person or affiliatt: who has been placed on the convicted vendor list following a conviction for public entity crimes may not submit a bid on a contract to provide any goods or services to a public entity, may not submit a bid on a contract with a public entity for the construction or repair of a public building or public work, may not submit bids on leases of real property to a public entity, may not be awarded or perform work as a contractor, supplier, sub- contractor, or consultant under a contract with a public entity, and may not transact business with any public entity in excess of the threshold amount provided in Sec. 287.017, for CATEGORY TWO for a period of36 months from the date of being placed on the convicted vendor list. v. CONE OF SILENCE You are hereby advised that this RFQ is subject to the "Cone of Silence," in accordance with Ordinance No. 99-3164. From the time of advertising until the Executive Director of the RDA issues his recommendation, there is a prohibition on communication with the RDA and/or the City's professional staff. The Ordinance does not apply to oral communications at pre-bid conferences, if held, oral presentations before evaluation committees, contract discussions during any duly noticed public meeting, public presentations made to the RDA Board and/or the City Commission during any duly noticed public meeting, contract negotiations with ,the staff following the award of this RFQ by the RDA Board, or communications in writing at any time with any city/rda employee, official, or member of the RDA Board and/or the City Commission unless specifically prohibited. A copy of all written communications must be filed with the City Clerk. Violation of these provisions by any particular bidder or proposer shall render this RFQ award to said bidder or proposer void, and said bidder or respondent shall not be considered for any RFQ, RFQ, RFLI or bid for a contract for the provision of goods or services for a period of one year. RFQ NO.: DATE: 00/00 3/16/00 MIAMI BEACH REDEVELOPMENT AGENCY 10 SECTION II - SCOPE OF SERVICES With the reversion of the Master Lease Agreement between the RDA and MB Redevelopment Inc., the RDA Board deems it is in the best interest of the RDA to engage a property management firm to procure and negotiate new leases, manage existing leases and provide certain maintenance and repairs, as called for in the Lease Agreements with the tenants and the Garage Easement Agreement between the RDA and MB Redevelopment, Inc. As such, the proposed scope of services should include but not be limited to the following areas: t/ Procuring and negotiating leases for current available space as well as for space which becomes available upon expiration and/or termination of exiting leases, t/ Collecting and remitting lease revenues, t/ Providing a means of communication for retail tenants to address and/or resolve matters pertaining to their respective leases, maintenance/repair concerns, etc., t/ Providing timely response to tenant issues and concerns, t/ Conducting periodic on-site inspections to ensure that tenant spaces and common area spaces are maintained to a standard consistent with a first class retail center. t/ Maintaining a system of accounting, bookkeeping and reporting that will accurately reflect all income received and disbursements made in connection with the operation and maintenance of the Anchor Shops. The RDA will remain responsible for all impositions relating to the leasing and common area maintenance of the Anchor Shops on a pass through basis, including without limitation reasonable attorneys' fees and other costs incurred in connection with procuring and negotiating leases or disputes concerning leases, as well as maintaining and repairing certain portions of the retail and common areas as defined in the individual Lease Agreements with the tenants and the Garage Easement Agreement between the RDA and MB Redevelopment. Compensation The Property Manager shall be responsible for collecting and remitting lease revenues to the RDA. In return for services provided by the Property Manager, the RDA shall pay the Property Manager a percentage of lease revenues collected (Management Fee). As such, proposals should identifY a proposed Management Fee. The proposed fee structure and the level of corresponding services provided will rank highly in the selection of the Property Manager. Terms of the Ai:reement It is anticipated that the term of the Property Management Agreement will be for three (3) years with the option of a one (1) year renewal period, to be exercised at the sole and absolute discretion of the RDA. RFQ NO.: DATE: 00100 3/16/00 MIAMI BEACH REDEVELOPMENT AGENCY 11 SECTION III - PROPOSAL FORMAT Proposals must contain the following documents, each fully completed and signed as required. Proposals which do not include all required documentation or are not submitted in the required format, or which do not have the appropriate signatures on each document, may be deemed to be non-responsive. Non-responsive proposals will receive no further consideration. A. CONTENTS OF PROPOSAL 1. Table of Contents Outline in sequential order the major areas of the proposal, including enclosures. All pages must be consecutively numbered and correspond to the table of contents. 2. Proposal Points to Address: Proposer must respond to all minimum requirements listed below, and provide documentation which demonstrates ability to satisfy all of the minimum qualification requirements. Proposals which do not contain such documentation may be deemed non-responSIve, 3. Fee Proposal Proposer must include a proposed Management Fee for managing and leasing the facility in accordance with Section II of this RFQ. The figure should be expressed as a flat fee or as percent oflease revenues collected by the Property Manager. Acknowledgment of Addenda and Proposer Information forms (Section VIII) 4. Any other document required by this RFO. such as a Ouestionnaire or Proposal Guaranty. B. MINIMUM REQUIREMENTS/QUALIFICATIONS 1. Proposer must have at least five (5) years experience managing/leasing comparable retail facilities. Experience must also include managing/leasing properties located in similar urban environments to Miami Beach. 2. Provide descriptions of retail projects currently or previously involved with, including but not limited to: a) Name of retail facility b) location c) Owner's name d) Years of operation (term of contract) e) Total square footage 1) Tenant mix - include names of tenants g) Total gross annual revenue RFQ NO.: DATE: 00/00 3/16/00 MIAMI BEACH REDEVELOPMENT AGENCY 12 Miami Beach Redevelopment Agency 1700 Convention Center Drive Miami Beach, Florida 33139 Telephone: (305) 673-7193 Fax: (305) 673-7772 HOW A PERSON MAY APPEAR BEFORE THE REDEVELOPMENT AGENCY OF THE CITY OF MIAMI BEACH, FLORIDA The regularly scheduled meetings ofthe Redevelopment Agency are generally held on the first and third Wednesdays of every month, commencing at 10:00a.m. 1. Lawrence A. Levy has been designated as the Agency's Executive Director. Robert Parcher has been designated as the Agency's Secretary. 2. Person requesting placement of an item on the agenda must provide a written statement to the Agency Executive Director, 4th Floor, City Hall, 1700 Convention Center Drive, telephone 673- 7285, outlining the subject matter of the proposed presentation. In order to determine whether or not the request can be handled administratively, an appointment will be set up to discuss the matter with a member of the Executive Director's staff. Procedurally, "Request for Agenda Consideration" will not be placed upon the Agency agenda until after Administrative staff review. Such review will ensure that the issue has been addressed in sufficient detail so that the Agency members may be fully apprised of the matter to be presented. Persons will be allowed three (3) minutes to make their presentation and will be limited to those subjects included in their written request. Such written requests must be received in the Executive Director's office no later than noon on Tuesday of the week prior to the scheduled Agency meeting to allow time for processing and inclusion in the agenda package. 3. ONCE AN AGENDA FOR AN AGENCY MEETING IS PUBLISHED, and a person wishes to speak on items listed on the agenda, he/she may call or come to the Agency Secretary's Office, 1st floor, City Hall, 1700 Convention Center Drive, telephone 673-7411, before 5:00 p.m., on the Tuesday prior to the Agency meeting and give their name, the agenda item to be discussed and, where known, the agenda item number. Copies of the Agency agenda may be reviewed at the Executive Director's Office on Monday, after 2:00 p.m., prior to the Agency's regular meeting. The complete agenda, with all backup material, is available for inspection on the Tuesday prior to the Agency meeting at the Agency Secretary office. 4. All persons who have been listed by the Agency Secretary to speak on the agenda item in which they are specifically interested, will be allowed up to three (3) minutes to present their views. ROBERT PARCHER Agency Secretary December 18, 1999 1':\CLER\$ALL\L1LL Y\COMMISSI\RDAAGEND.LL S()UTti V()I~r: ~edevelC)pment f)lstnet CIIT Cr:~Tf:l? l?edevel()pment f)lstJi<:t h) Annual operating budget i) Annual Property Manager's fee and basis for compensation (flat fee or percentage of revenue) j) List of client references k) Any other relevant experience 3. IdentifY the person or persons (s) to be assigned to manage/lease the Anchor Shops. This should include a description/resume of each individual's professional qualifications. 4. Provide a financial statement, preferably audited, which provides evidence of financial capacity and resources. 5. Include a statement from the firm's insurance agent or insurance company attesting to the proposer's ability to obtain the minimum level of insurance, as described in Sections VI and VII of this RFQ. 6. Include a narrative description, describing the proposed management, operating and marketing/leasing plan for the property. 7. Submit a proposed annual operating budget reflecting anticipated revenues and operating costs, including projected staffing levels for this size facility. RFQ NO.: DATE: 00100 3116/00 MIAMI BEACH REDEVELOPMENT AGENCY 13 SECTION IV - EV ALVA TION/SELECTION PROCESS: CRITERIA FOR EV ALVA TION The procedure for proposal evaluation and selection is as follows: 1. Request for Proposals issued. 2. Receipt of proposals. 3. Opening and listing of all proposals received. 4. An Evaluation Committee, appointed by the Executive Director, shall meet to evaluate each proposal in accordance with the requirements of this RFQ. If further information is desired, proposers may be requested to make additional written submissions or oral presentations to the Evaluation Committee. 5. The Evaluation Committee shali recommend to the Executive Director the proposal or proposals which the Evaluation Committee deems to be in the best interest of the RDA. The Evaluation Committee shall base its recommendations on the following factors: I. The proposer's demonstrated prior experience in leasing and managing retail facilities, particularly those loacated in urban environments comparable to Miami Beach II. The capability and relevant experience of key staff to be assigned to the management of the Anchor Shops. ill. The respondent's financial capability and ability to meet insurance requirements. IV. The proposed Management Fee structure. V. Quality and number of references. 6. After considering the recommendation(s) of the Evaluation Committee, the Executive Director shall recommend to the RDA Board the proposal which the Executive Director deems to be in the best interest of the RDA. 7. The RDA Board shall consider the Executive Director's recommendation(s) in light of the recommendation(s) and evaluation of the Evaluation Committee and, if appropriate, approve the Executive Director's recommendation(s). The RDA Board may reject the Executive Director's recommendation(s) and select another proposal or proposals. In any case, the RDA Board shall select the proposal or proposals which the RDA Board deems to be in the best interest of the RDA. The RDA Board may also reject all proposals. RFQ NO.: DATE: 00/00 3/16/00 MIAMI BEACH REDEVELOPMENT AGENCY 14 8. Negotiations between the selected proposer and the Executive Director take place to arrive at a contract. If the RDA Board has so directed, the Executive Director may proceed to negotiate a contract with a proposer other than the top-ranked proposer if the negotiations with the top-ranked proposer fail to produce a mutually acceptable contract within a reasonable period of time. 9. A proposed contract or contracts are presented to the RDA Board for approval, modification and approval, or rejection. 10. If and when a contract or contracts acceptable to the respective parties is approved by the RDA Board, the Chairman and Secretary sign the contract(s) after the selected proposer(s) has ( or have) done so. Important Note: By submitting a proposal, all proposers shall be deemed to understand and agree that no property interest or legal right of any kind shall be created at any point during the aforesaid evaluation/selection process until and unless a contract has been agreed to and signed by both parties. RFQ NO.: DATE: 00/00 3/16/00 MIAMI BEACI-I REDEVELOPMENT AGENCY 15 SECTION V - GENERAL PROVISIONS A. ASSIGNMENT The successful proposer shall not enter into any sub-contract, retain consultants, or assign, transfer, convey, sublet, or otherwise dispose of this contract, or of any or all of its right, title, or interest therein, or its power to execute such contract to any person, firm, or corporation without prior written consent of the RDA. Any unauthorized assignment shall constitute a default by the successful proposer. B. INDEMNIFICATION The successful proposer shall be required to agree to indemnifY and hold harmless the RDA, the City of Miami Beach and their respective officers, employees, and agents, from and against any and all actions, claims, liabilities, losses and expenses, including but not limited to attorneys' fees, for personal, economic or bodily injury, wrongful death, loss of or damage to property, in law or in equity, which may arise or be alleged to have arisen from the negligent acts or omissions or other wrongful conduct of the successful proposer, its employees, or agents in connection with the performance of service pursuant to the resultant Contract; the successful proposer shall pay all such claims and losses and shall pay all such costs and judgments which may issue from any lawsuit arising from such claims and losses, and shall pay all costs expended by the City and/or the RDA in the defense of such claims and losses, including appeals. C. TERMINATION FOR DEFAULT If through any cause within the reasonable control of the successful proposer, it shall fail to fulfill in a timely manner, or otherwise violate any of the covenants, agreements, or stipulations material to the Agreement, the RDA shall thereupon have the right to terminate the services then remaining to be performed by giving written notice to the successful proposer of such termination which shall become effective upon receipt by the successful proposer of the written termination notice. In that event, the RDA shall compensate the successful proposer in accordance with the Agreement for all services performed by the proposer prior to termination, net of any costs incurred by the RDA as a consequence of the default. Notwithstanding the above, the successful proposer shall not be relieved of liability to the RDA for damages sustained by the RDA by virtue of any breach of the Agreement by the proposer, and the RDA may reasonably withhold payments to the successful proposer for the purposes of set off until such time as the exact amount of damages due the RDA from the successful proposer is determined. RFQ NO.: DATE: 00/00 3/16/00 MIAMI BEACH REDEVELOPMENT AGENCY 16 D. TERMINA TION FOR CONVENIENCE OF THE RDA The RDA may, for its convenience, terminate the services then remaining to be performed at any time without cause by giving written notice to successful proposer of such termination, which shall become effective thirty (30) days following receipt by proposer of such notice. In that event, all finished or unfinished documents and other materials shall be properly delivered to the RDA. If the Agreement is terminated by the RDA as provided in this section, the RDA shall compensate the successful proposer in accordance with the Agreement for all services actually performed by the successful proposer and reasonable direct costs of successful proposer for assembling and delivering to the RDA all documents. No compensation shall be due to the successful proposer for any profits that the successful proposer expected to earn on the balanced of the Agreement. Such payments shall be the total extent of the City and/or the RDA's liability to the successful proposer upon a termination as provided for in this section. Rf"Q NO.: DATE 00/00 3/16/00 MIAMI BEACH REDEVELOPMENT AGENCY 17 SECTION VI - SPECIAL TERMS AND CONDITIONS A. INSURANCE The successful proposer(s) shall obtain, provide, and maintain during the term of the proposed Agreement the following types and amounts of insurance issued by insurers licensed to sell insurance in the State of Florida and having a B+ VI or higher rating in the latest edition of AM. Best's Insurance Guide. Any exceptions to these requirements must be approved by the Executive Director or designee. 1. Commercial General Liability. A policy including, but not limited to, comprehensive general liability including bodily injury, personal injury, property damage in the amount of a combined single limit of not less than $1,000,000. Coverage shall be provided on an occurrence basis, The City of Miami Beach and the Miami Beach Redevelopment Agency must be named as additional insured on policy. 2. Professional Liability (Errors and Omissions). Minimum of$I,OOO,OOO per occurrence. 3. Worker's Compensation. A policy of Worker's Compensation and Employers Liability Insurance in accordance with State worker's compensation laws. Evidence of such insurance shall be submitted to and approved by RDA prior to commencement of any work or tenancy under the proposed Agreement. FAILURE TO PROCURE INSURANCE: The successful respondent's failure to procure or maintain the required insurance shall constitute a material breach of the proposed Agreement, giving the RDA the right to terminate the proposed Agreement. RFQ NO.: DATE: 00100 3/16/00 MIAMI BEACH REDEVELOPMENT AGENCY 18 SECTION VII - ATTACHMENTS 1. Miami Beach Lobbyist Ordinance No. 92-2785 (Division 3 Lobbyist) 2. Miami Beach Ordinance No. 99-6134 "Cone of Silence Ordinance" (Division 4 Procurement) 3. Anchor Shops Leasing Matrix 4. Former Retail Space Master Lease Agreement between the Miami Beach Redevelopment Agency and MB Redevelopment, Inc. 5. Section 14, Insurance Requirements of the Garage Easement Agreement between the Miami Beach Redevelopment Agency and MB Redevelopment, Inc. RFQ NO.: DATE: 00/00 3/16/00 MIAMI BEACH REDEVELOPMENT AGENCY 19 :c -C '" ~ o o C N c "'- -' '" e cr ~'e ..: 'JJ-C W :: VJ or ~:; W..... ...J '" '" 3 " ~~ Co 3~ '" '..) " ,T, .. ,. 'f. c ... ~ W 0. .,. " _ r/i , o -0 '; " ",'C . W ~ E o ~ ~ '" "'0<: J. C ~ " " c . - Co ~ ~ QO .n J~ c ,~ : : ~ . W . c-''''' ..; WOO ]& W W C W . . ~ ~ . 00,.. (5 Coil ,5 il -g u c -= ~ f " ~ W C o Z c .s oJ E . >. ~ ;>>, :~ o ~. EN o ~:;: c w... "- e . : -'" ..C s ." W . 1! :5 ] ~ n "i ~ '" . ~ '~ 0. '" ~ W ~ e '" .( c -0 '..J W Co <r. u Cl c . c ~ ,; .; -= ~ ~. >-~ "'.0 ~,~ ~ .!1 ~ ':; u."<,v 0 '" o. - - - ~ M - n 0' ~ N 0' " 0' 0' ~ ~ ,. " W .( , 0<: c c V; V; V; V; V; -0 C ~ 5 5 ~ ~ u u - ::: ::: - - I" 0<: 0 u. <..J ::: - ~ E c . ~ 2 :ii 'd iii ~ ~ W .", C ~ u 'd e- ~ .; c ~ W W U 0 ~ u '" u -= ;;i ::! ~ ~ ~ ~ - u Z .( c ;;; ~, u u <; ~ ;;; ~ ~ ~ '~ ;:; WI '.- U 2 ~ -0 ~ M C ~ :- ;:. :- , u <- 0: ~ ,. -_. , ". --~._- - -- --. '. ;; -0 =ii .... .',J ... ~ .c ""tI ~ ~ ~ ~ ~~e:EU - '. . E -< ~~~-E.S: ~ ; ] '" ,~ ~ c c w!< . o. ~ ; ~ _ O(l .. . u u ~~ o c .~ ~ 'E ", g~ u ~ O' ?j c.. ;t ~~..,.~~ u c o Z .. J. ~ U 0 zu ]00 5& ~ ;:; ..; j o~ tig: 0- C ." U -g ] ~ u c o Z 8 '" ~ ~ ,..:", ~~~ 00 M ~ ~~ ~. 00 00000 ~~"" N Moo >-..... ;.0.. ~ ~ ~ -' ...J ." o ..s ~] ." U la ::' Co u o , -5i~ u 00 ~~~ U ......_ .0 C ~ ~ ~ ~ ~ c..u ].~ S.!d; :0 E.g~= a~-;::;ucid o C~ o 0 ''::; ell o u ~ .0 :i (~l (~IS C~ 0 ; ~ ~ a:~.5 5 .... 0 c: c. ~ 0 .. ~ - ~ :; ;. ~: E = ~...l Evt :f ~ x '0 '3~ ~ ~~~'~< '(5 (.I -;; c ~ '~ 8~ ~f l~ '-t:- u" CO '?: C -0 " ." , ] ~ c ~ z gggg o ~ 3.~~~ 000 c::~~~3 ~~::E:: oJ u ~ ~ L ~ ~~~~~~ ,u~ ::; E 0 .r. E e-g-s<s ('I u.. Vl oe _ -0 ~ E ~ ~ ~ ~.o E c ~ g ..::: u u 011 -0 E ;l u ~ ~ u ~ g~g~ c.. E 0 ~ ::; __ E $ -0 "2~.c ~ ~ QQ~j~~, ; ~ E: r :.0 U .- C E <: ~~~~-[f g 'c \() ~ .- ,E ~;s~ ~ @)E :: (~)S ~ ~ l:2 'it .6 u ~~~: ~ a [~ " z ..; - .c ~ g; ::; ::; 0; ~ ~oo 1fg; <:- 5 il -g ~ c ~ u c C Z 0 0 ~ N .... C .s oJ ~ ~ >, ~ 0> ..; N - ~ u c u " .,. <; .= co , 7: .c ;z :.< ~ " ::; c; ; ~ w... .,. '" _ Vl .c ... ~2 'T,J 'E;,a i ~ .2 lG~i' ~ o l:~:3':Cu ~ ie';.!!~~ a::I V)~ n.u a.~ w C "w ~ E w w .. w c ~ ~ .. =< 5 ~ 0 :>-~- ~ foot . -.b E-;- ..j ft. '0- ~ ~e';/!.v: . ....0.., .. o ~ ~:5 w . f~ .. v '0 i ~ ~ cO c ,2 : S ~ Q....", v : 5 - ~ .. "-:l~ 0]~ C ." V 11 ~ E .5 e c = ~ ~ o Z 88 ~~ ... .. ~ .. w :>- ii t w... "'- SN c~~ W N ~ ~_. ~...- '" .. c e~~ l1-sE l'i~-:- E;;-S ~ - '" ~ ~ ~:>- ....- ~ ~ :5 ." .. .~ ... 'E .. ] :i .JO ii ct~ ~ 8 c .L =.: e 17 ",!, ~ .. .., N .. .. c e ... c ~ c :c III w ~ .( ~ v . ... Vl .... ~ ~ Vl .s ~ ." , ... c .g ~ e:g E_ o , u" o "3 a o ... 1-< o ;; 6~-c ~ .~ 1 s .: )(@)E 0 @)S ~ [ ~ ';) 'E ~ ::~'o~ ~ ~ i ~ ::> E j ~ Vl ~ Vl ~ '" ! ~ ~ Vl ~ Vl ~ Vl ~ Vl ! ~ Vl .... ~ o c ~ ~ .. ;. < ~ Vl ~ Vl ! ! ! j ~ Vl ~ Vl ~ Vl ! ~ Vl ~ ~ c o .. c :c .~ ~ ~ < z .s ~ ~ ~ Vl ~ '" ~ Vl ~ Vl ~ '" ~ '" ~ '" ! ~ '" ! ~ '" ~ Vl ~ '" ~ '" ~ '" ~ Vl ~ Vl ~ Vl ! ~ Vl ~ Vl ~ Vl .. ~ '" :}; c c .. c ~ u :< .( c o .. :1j II > ,. "" ,g3 ~~~ t:: (5 '2 ~o:! E J E J ~ o o o .::: g- -.a o o '"~ .. '" eo Co '" ~ o !- 'ct.. t"l 00 .::: cr' '" o ,.... .... ..0 ~ .. '" .. .. ...:J OJ '" .. Co r.n .. '0 !- 'ct.. 00 <t:: ~ o -.a ,') 'D. M c ~ .~ o ell OJ Z. ... OJ ~ C ::l OJ '" .. Co r.n " '0 !- ] ~ !! .; .. -t: OJ OJ .. Co r.n " '0 !- RETAIL SPACE MASTER LEASE between MIAMI BEACH REDEVELOPMENT AGENCY, PREPARED BY: Eric D. Rapkin, Esq. Hughes Hubbard & Reed LLP 201 South Biscayne Blvd. Suite 2500 Miami, Florida 33131 RECORD AND RETURN TO: Kolleen O.P. Cobb, Esq. HUghes Hubbard & Reed LLP 201 South Biscayne Blvd. Suite 2500 Miami, Florida 33131 M1962610.07&109/19196 Landlord . and MB REDEVELOPMENT, INC., Master Tenant Dated as of September 20, 1996 RETAIL SPACE MASTER LEASE TInS RETAIL SPACE MASTER LEASE (the "Master Lease"), dated as of this 20th day of September, 1996 (the "Commencement Date"), between MIAMI BEACH REDEVELOPMENT AGENCY, a public body corporate and politic, as LandJord, and ME REDEVELOPMENT, INC., a Florida corporation, as Master T enam. REeIT ALS: A. Landlord and Master Tenant have entered into that ~rtain Garage Easement Agreement, of even date herewith (the "Garage Easement Agreement"), Pursuant to which Landlord has granted certain rights and easements to Master Tenant in connection with that certain facility (the "Facility") containing a municipal parking garage and appurreMnoes conr.ining approximately eight hundred (800) parking spaces (the "Garage") and certain retail space (the "Retail Space") located in an area bounded by Washington and Collins Avenues in the proximity of 16th Street, City of Miami Beach, Metropolitan Dade County, Florida, as more panicu1arly described on Exhibit A attached hereto (the "Land"). B. Pursuant to the Garag~ Easement Agreement, Landlord and Master Tenant have agreed that Master Tenant shall operate and manage the Retail Space on behalf of l..andIord pursuant to a master lease for the Retail Space. TERMS OF AGREEMENT NOW, THEREFORE, it is hereby mutually covenanted a1Xi agreed by and between the panies hereto that this Master Lease is made upon the terms, covenants and conditions hereinafter set forth. ARTICLE 1. DEFINITIONS For aU purposes of this Master Lease, the terms defined in this Master Lease sha1J have the meanings set forth in the Garage Easemem Agreemem and/or in that certain Agreemem of Lease between LandJord, the City (to the extent provided therein) and Master Tenant of even date herewith for the leasing, ownership, managemem and Operation of the Hotel (the "Ground Lease"), except if otherwise noted in this Master Lease. 1.11962610.07&109/19196 [ ARTICLE 2. DE."nsE OF RET AlL SPACE AL"ID TER."f OF LE ASE Section 2.1 Demise of Retail Space for Term. Landlord does hereby demise and lease to Master Tenant, aOO Master Tenant does hereby lease and take from Landlord, the Retail Spac::, together with all the appunenanr.e5, rights, privileges aOO hereditaments thereto, subject to the terms and conditions of this Master Lease, to have and to hold unto Master Tenant, as owner of the Hotel, and its }:ermitted ~rs and permitted assigns under the Ground Lease or otherwise as the owner of the Hotel, for a term commencing on the Commencement Date and expiring the date which is the last day of the month in which the onc-hUDdredth (100th) anniversary of the Commencement Date shall oo:ur (the "Term"), unless sooner terminated pursuant to the terms hereof. Attached hereto as Exhibit 2.1 is a floor plan showing the approximate location of the Retail Space within the Facility. Upon completion of the Facility, the panies shall execute an addendum to this Master Lease showing the as-built location of the Retail Space. Notwithstmding anything to the cont:rary conr~i~ herein, if Master Tenant, its permitted successors and permitted assigns fail to operate the Hotel as a first class conveDlion cemer hotel to the extem required to so operate the Hotel pursuant to the Project Documcms, then Lm:Uord shall have the right to terminate this Lease upon ninety (90) days' written notice to Master Tenant, whereupon Master Tenant shall vacate and surrender the Retail Space to Landlord in the manner required by this Master Lease on or before the expiration of such ninety (90) day period, and both parties shall be relieved of all further obligations hereunder. Section 2.2 No Encumbrances. Landlord will not permit or suffer any eIX:UIIlbran:e, mortgage, pledge or hypothecation of its interest in this Master Lease or the Retail Space except as permitted pursuant to the Garage Easemer.l Agreement. Section 2.3 Sale of Entire Interest. Landlord shall not sell, tranSfer, conveyor assign its interest in this Master Lease or the Fadlir;, except for a sale, tranSfer, conveyance or assigmnem of its entire interest in this Master Lease and ~ Facility, subject to Master Tenant's rights under Section 27 of the Garage Easement Agreement. ,1,11%26\ 0.078/09/19196 2 I I I I I I - j I l' RETAIL SPACE MASTER LEASE TInS RETAIL SPACE MASTER LEASE (the ~Master Lease~), dated as of this 20th day of September, 1996 (the "Commencement Date~), between MIAMI BEACH REDEVELOPMENT AGENCY, a public body corporate and politic, as Landlord, and ME REDEVELOPMENT, INC. t a Florida corporation, as Master Tenant. RECITALS: A. Landlord and Master Tenant have entered into that Ct':rtai.n Gange Easement Agreement, of even date herewith (the "Garag~ Easement Agreement"), pursuant to which Landlord has granted certain rights and easements to .\iaster Tenant in connection with that certain facility (the "Facility") containing a municipal parking garage and appurtena~ conrnining approximately eight hundred (BOO) parking spaces (the "Garage") and certain retail space (the "Retail Space") located in an area bounded by Washington and Collins Avenues in the proximity of 16th Street, City of Miami Beach, Metropolitan Dade County, Florida, as more particularly described on Exhibit A attached hereto (the "Land"). B. Pursuant to the Garag~ Easement Agreement, Landlord and Master Tenant have agreed that Master Tenant shall operate and manage the Retail Space on behalf of La.nd1ord pursuant to a master lease for the Retail Space. TERMS OF AGREEMENT NOW, THEREFORE, it is hereby muwally covenanted and agreed by and between the panies hereto that this Master Lease is made upon the terms, covenants and conditions hereinafter set forth. ARTICLE 1. DEFINITIONS For all purposes of this Master Lease, the terms defined in this Master Lease shall have the meanings set forth in the Garage Easement Agreement and/or in that certain Agreement of Lease between Landlord, tile City (to the extent provided therein) and Master Tenant of even date herewith for the leasing, OWDcrship, management and operation of the Hotel (the "Ground Lease"), except if otherwise noted in this Master Lease. \{]9626 I 0.071109/19/96 ARTICLE 3. RENTAL Section 3.1 Method and Place of Payment. Except as otherwise specifically provided herein, all Percentage Rent, as hereinafter defined and any other sums, costs, expenses or deposits which Master Tenant is obligated, pursuant to any of the provisions of this Master Lease, to pay and/or deposit (collectively, "Rental"), shall be paid witbout notice or demand. All Rental payable to LandIord shall be paid by good checks (payable upon presenttnent) drawn on a U.S. or state chartered bank, in currency of the United States of America. Rental that is payable to Landlord shall be payable at the address of I...ar:d1ord set forth herein or at such other place as Landlord shall direct by notie: to Master Tenant. Section 3.2 Percenta~e Rent. (a) Rent. Master Tenant shall pay to Landlord, as percentage rent ("Pemmtage Rent"), ninety-five (95%) percent of the gross rents, receipts and other revenu.es ~ived by Master Tenant with respect to the Retail Space (including, without limitation, base rent and percentage rent, amounts paid in connection with the surrender or termination of any Sublease (as defined below) and any Proceeds of business interruption or rem loss insurance) and any payments in connection with common area maintenance, real estate taxes, insurance and utilities, and all other amounts received by Master Tenant from the subtenants of Master Tenant (Le., the actual space users of the Retail Space) ("Subtenants"), pursuant to Subleases ("Gross Retail Revenues"). (b) Collection of Gross Retail Revenues. Master Tenant sball exercise commercially reasonably efforts to collect all Gross Retail Revenues and sball take all actions customarily required of managing agents or master tenants of first class retail space in Dade County, Florida to coUect Gross Retail Revenues; provided, however, that Master Tenant sball not institute any litigation to coUect any Gross Retail Revenues without the prior consent of Landlord; and, provided further, Landlord, at its election, may institute, prosecute or settle any such litigation with counsel (including, without limitation, Landlord's in-house counsel) designated by Landlord. (c) Subleases. Except as otherwise approved by Landlord, each sublease entered into between Master Tenant and an actual user of the ReraiI Space (a "Sublease") shall obligate the SUbteDanl thereunder to reimburse Master Tenant (as sublessor) for the Subtenant's proportionate share of common area mail'ltenance, Impositions (including, without limitation, the Impositions described in the first sentence of Section 3.3), insurance, utilities and any and all other costs of OWning, operating, managing, mainr~ining, repairing, and replacing the Retail Spau as described in SectioQ 3.4 (either on a "net" basis or over a "base year" or "expense stop" basis). . (d) Improvements/Commissions. Any and all reasonable costs for subtenant Il!lproY<ments. leasing commissions. liability insurance procured by Master Tenant (unless liability l!lsurance for Master Tenant is paid for by Landlord or the SubtenanlS Pursuant to Section 5.1) and all other teasonable CUStomary out-of-pocket costs incurred by Master Tenant in connection with the \{J96261 0.078/09/1 9196 3 l Subleases, including, without limit.1tion, reasonable anorneys fees a.r.d other costs incurred m cOIU1ection with the procuring and negotiation of Subleases or disputes concerning Subleases, net reimbursed to Master Tenant by the Subtenants shall be paid for directly by Landlord (it being agreed that Master Tenant shall have no responsibility for any such costs or expenses); provided, however, that such costs shall not include overhead, wages, salaries and other ctlmpensation and fringe benefits and, provided, further, however that Landlord, as its election, may conduct such negotiations or prosecute such disputes with counsel (including, without limitation, Landlord's in-house counsel). Master Tenant has incurrerl ctlsts as described above in this Section 3.2(d) in connection with attempting to procure Subleases prior to the COmmeIXeDlCnt Date. Such costs, as well as any other costs reimbursable to Master Tenant pursua.nt to this Master Lease, will be reim.buncd to Master Tenant by Landlord within thirty (30) days after Landlord I s receipt of an invoice therefor together with r-...asonable supporting doc~emation. If Landlord fails to r:imturse ?v!aster Tenant fer any mch costs within such thirty (30) day period, then Master Tenant shall have the right to deduct such costs from Rental due Landlord hereunder, In the eve::..: of a bona fide dispute between Landlord am Master Tenant concerning any such invoic::(s), Master Tenant will not deduct the amount thereof from Rental due Landlord pending a resolution of the dispute. (e) Payment of Percenta2e Rent. Percentage Rent shall be paid in arrears, comzr.erA:ing on the date that is thirty (30) days after the Hotel Opening Date, as follows: (i) On or before the twentieth (20th) day of each calendar month, commencing with the month that immediately follows the month in which the Hotel Opening Date CCOll'S, during the Term of this Master Lease (and any renewals or extensions thereot), Master Tenant shall pay to Landlord the Percentage Rent actually collected from the Subtenants for the p~ing month. (ii) As soon as available, but in no event no later than the date which is O~ hundred fifty (150) days after the end of each calendar year, Master Tenant shall make provide to Landlord a copy of the annual fmancial statements for such year (which statements shall be audited by any Recognized Accounting Firm) acalrately reflecting the results of the Retail Space'.) operations (including, without limitation, a statement of Gross Retail Revenues, Percentage Rent, and the 5 % portion of Gross Retail Revenues retained by Master Tenant during the preceding calendar year (or partial calendar year, as applicable)), all prepared and certified by Master Tenant and such independent certified public accountant in accordance with generally accepted accounting principles. If any such certified statement discloses error in the calculation of the Percentage Rent for any ?=r1cd. appropriate adjustment of the Percentage Rent shall be made and paid promptly. (iii) Landlord, at its expense, shall have the right to ~t, photccopy and audit the books and records of Master Tenant with respect to the Retail Space. If such audit results in there being due to Landlord Percentage Rent for the year being audited in an amount equal to or exceeding three (3 %) percent of the Percentage Rent theretofore paid by Master Tenant in respect of such year. then the cost of such audit shall be paid by Master Tenant to Landlord upon thirty (30) days' demand, MJ9626 I O.071l109/191% 4 1 r I . ~"'''..L~ Section 3. J LmcDsitiofl..S. From arrl after the CotlJ1r.er..cemem Date, I..aOO1ord 'ibal] pay, r.cc la~r tba.n r.te date :'':e ~e may Ce paid withom ~rest or J=enalty (which is the da~ of de~eI:CY), ill ~ositiOIlS tbat 1( any time thereafter are ~, levied, CDnfirn:ed, impJsed upcn, or charged to Lar..d1ord with respea co (i) the Retail Spac:, or (ii) any vault, passageway or ~ in, over or ur.der any sidewalk or street in frem of or adjoining the Retail Spac:, or (ill) any otter ~ of tte R:tail Spac:, or (iv) any peI'SQnal property, FF&E, Building Equipmem or other facili~j used in ~ op:rarion thereof (other than as o~ by Subtenants or leased by Subtenants frem a third paIt/), or (v) any dccum:m to which Mast:r Tenant is a party which creates or transfers an inter-wSt or estue in tbe R....-tail S~, or (vi) tbe us.: ar.d ca:upan:y of the Retail Spac:, or (vii) this (\.!a.stcr L~. Fer ~ of this ~iaster Leas.e, tte definition of ~Imposition.s 1 sba1.1 Dave tl:e meaning ~t forth in ttc Grcur.d L::J.se, 15 if :l:e ';.-cr'i 'Premises~ in the definition of '1m:posit:icn.s' ~! forth in r.te Grcur..d L:as.e ~fe~ to tbc Retail S9~, Nothing contaiI:ed herein sball be eel:.: :"'.;erl (.Q require Larillord to payor to 1::e charged for any per-Jon of (i) municipal, state or federal i1:come or gross receipts t.a.;t.:s lSs.':Ssed. against Mast:r T ~Dant or me Subtenants; (ii) municipal, state or federal capital leV"j, eSUte, su~ssion, inhcri~, tr:lDSfer or gains taxes, of Master Tenant or the Subtenants; (Hi) corporation or fr:u:<:h.ise ta.1es ~sd on Master Tenant or the Subtenants; (iV) State of F10rida sales ~1: 00 ~m due UI:der the Subl~s (which is payable by the Subtenants); or ('I) Stare of F10rida sal~s t.J.i: on sale of gccd.s or ~rri~s ~y the Subtenants. Section 3,4 Net ~. Except to the extent otherNise provided in the Subleas.:s, L.1r.d1ord shall Ce ~spoDSible for ,an:1 and all common area maint.enaJ:~, Imp(Jsitions (including, without limitation, the Im~sition.s described in the first senre~ of Section 3,3), ~, utilities, 100 any ar.d ail other COSt.3 :r Owning, operating, managing, mainuining, r:pairtilg, az:d !":placing the Retail Sp~, It is the ir.~::~ that this Master L:ase l::e · r:et~ co Master T :nant and that I...ar.d.1ord pay all costS, :~ns.::s :u:d cbarges of every kind or nature (except as ~xpressly provided for l:erein to tte CDDInry in conn:crion with cost to be borne by Master Tenam) relating or allCClble to tte ~tail Spac: that may arise or eecorne due or payable during or after (but :uIributable to a ,p:ricd f.:l.lling within) the Term, in ,;onn:ction wim tl:~ transactions contemplated by this Master Uase, as well as any costs referred to in Sectjon 3.2(d) incurred by Master Tenant prior to tl:e T~rm in co~tion c.erewitb.. as descnCed lOOv~. .-\R:nCLE ~. USE Section 4.1 Use. Master Tenant may acr--mpt to prcc~ Subcer.am.s (.Q ~ u:d ope~ ti:e R...-uil Spao: throughout the Term for any and allla'Nful busir:ess use ,:ampatible witb. .1 tir:n class convention ~m.:r botel. j \il%26I007li09/191% 3 ARTICLE 5. INSURANCE Section 5.1 Insurance Requirements. At all times during the Term. Lar..dlord. at its sole cost aOO expense. shall carry or cause to be carried all insurance coverages required to be carried by Larolord uOOcr the Garage Easemem Agreement. All insuranCe requirements aOO the treatment of the proceeds thereof shall be governed by the applicable provisions of the Garage Easement Agreement. Any insuraDCC policies covering any portion of the Retail Space shall name Master Tenant. its Affiliates. aOO any Recognized Mortgagee (or, if Master Tenant acquires fee title to the Land. as defined in the Growxi Lease. then the Hotel owner's mortgagee) as additional insureds. In addition. all Subleases shall r:~\lire the Subtenant to carry liability ~ naming Landlord as named insureds aOO the City, Master Tenant. its Affiliates. any Facility Mortgagee and any Recognized Mortgagee as additional in;,-.reds with limits reasonably prudent under the circums~s, but in any event not less than that carried by comparable retail establishmentS in Dade County, Florida. ARTICLE 6. DAi\1AGE, DESTRUCTION AND RFSrORA TION Section 6.1 Damage. Destruction and Restoration. The damage to or destruction of the Retail Space by fire or other casualty and Casualty Restorations shall be governed by the applicable provisions of the Garage Easement Agreement. However, to the extent that Landlord repairs or rebuilds the damaged portions of the Retail Spac: following a fire or other casualty, regardless of whether Landlord is obligated to do so pursuant to the Garage Easement Agreement. then this Master Lease shall continue in full force and effect. p~ Subleases will provide that any repairs to or rebuilding of the damaged portions of the Retail Space will be performed only to the extent Landlord is required to repair or rebuild the Retail Space pursuant to the Garage Easement Agreement. However, to the extent that any of the Subleases approved by I...ani1ord require repair or reconstrUCtion following a fire or other casualty, Landlord, at its expense. shall cause repair or reconstrUCtion to be made in accordaIu with the applicable provisions of the Subleases. arA this Master Lease shall continue in full force and effect. ARTICLE 7. CONDEMNATION Section 7. 1 Taking, All takings of the Retail Space, all Condemnation Restorations of the Retail Space following ~l\ taking and the disbursement of awards in connection therewith shall be governed by the appUcaD1 6 MI9626 10.07&/09/19196 -111 provisions of the Garage Easement Agreement. However, to the extent that LaOOlord repairs or rebuilds the Retail Space following a taking regardless of whether I....m:1lord is obligated to do SO pursuant to the Garage Easement Agreement, then this Master Lease shall continue in full force and effect. The Subleases will provide that any repairs to or rebuilding of the condemned portions of the Retail Spaa: will be performed only to the extent Landlord is required to repair or rebuild the Retail Space pursuant to the Garage Easement Agreement. However, to the exteDl that any of the Subleases approved by Landlord require repair or reconstruction following a taking, Landlord, at its expense, shall C3llSe repair or reconstruction to be made in accordance with the applicable provisions of the Subleases, and this Master Lease shall continue in full foro: mi effect. ARTICLE 8. ASSIGmID.'fT, TRANSFER AND SUBLETIlNG Section 8.1 Assi211ID.ent. Master Tenant shall not assign this Master Lease except to a successor tenant under the Ground Lease or to a successor owner of the Hotel, and Master Tenant shall be required to assign this Master Lease to a successor tenant under the Ground Lease or to a suo:essor owner of the Hotel. Section 8.2 Subleases. Landlord shall have the right to approve (in its reasonable judgment) the terms and conditions of any proposed Sublease sought to be entered into between Master Tenant and a Subtenant, including, without limitation, the Person(s) that is (are) proposed as the Subtenant(s) thereunder. Each Sublease sought to be entered into by Master Tenant shall be submitted to Landlord. Landlord shall have ten (10) Business Days within which to approve or disapprove the applicable Sublease (and, if disapproved, stating Landlord's rcarons for disapproval with specificity). If Landlord fails to respond within such ten (10) Business Day period, then Master Tenant will notify Landlord of such failure, and if Landlord fails to respond within five (5) calendar days thereafter, then the applicable Sublease shall automatically and without funher notice be deemed to be approved. To the extent requested by any of the Subtenants, Landlord will agree to grant nondisturb~ rights to the SUbteIWlt(S) so requesting, such that Landlord will agree that, so long as no default or event which. with the passing of time or giving of notice would constitute a default, exists under the applicable Sublease, Landlord shall not disturb the applicable Subtenant's possession of its subleased premises or rights under the applicable Sublease by joining such Subtenant as a defendant in a foreclosure or eviction proceeding. I I I 1 "'''''' 007110./1.... 7 ARTICLE 9. MORTGAGES Section 9.1 Ri~ht to Mortgage. Master Tenant may not enter into any Mortgage in connection with this Master Lease and the Retail Space except in connection with Mortgages entered into pursuant to the Ground Lease. Master Tenant is granted no greater rights by virtue of this Master Uase to assign, pledge or mortgage its interest in this Master Lease or the Retail Space than Master Tenant has been granted under the Ground Lease to assign, pledge or mortgage Tenant's Interest in the Premises (as such term is defIned in the Ground Lease). Landlord may not enter into any Mortgage in connection with this Master Lease and the Retail Space except in connection with Mortgages er:rered into pursuant to the Garage Easement Agreement. Landlord is granted no greater rights by vinue of this Master Lease to assign, pledge or mortgage its interest in this Master Lease or the Retail Space than Landlord has been granted under the Garage Easement Agreement to assign, pledge or mortgage Landlord's interest in the Facility Premises (as such term is defmed in the Garage Easement Agreement). ARTICLE 10. NO SUBORDINATION Section 10.1 No Subordination. Landlord's interest in the Retail Space and in this Master Lease, as the same may be modified, amended or renewed in accord.aoce with the provisiom of this Master Lease, shall not be subject or subordinate (and such Landlord's interest is superior) to (a) any Recogn17ed or Affiliate Mortgage now or hereafter existing, (b) any other Mortgage (as defined in the Ground Lease), liens or cDCUIllbrances now or hereafter affecting Master Tenant's interest in this Master Lease and the leasehold estate created hereby or (c) any Sublease or any mortgages, Hem or encumbrances now or hereafter placed on any Subtenant's interest in the Retail Space. Tenant's interest in the Retail Space and in this Master Lease, as the same may be modified. amended or renewed in accordaD:e with the provisiom of this Master Lease, shall not be subject or subordinate (and such Tenant's interest is superior) to (a) any Facility Mortgage now or hereafter existing, or (b) any other liem or encumbrances now or hereafter affecting Landlord's interest in this Master Lease and the leasehold estate created hereby. Ml9626 I 0,078/09/1 91% 8 1 ARTICLE 11. MAINTENANCE AND REPAIR; AL TERA nONS Section 11.1 Maintenance of Retail Space. Landlord shall maintain and repair the Retail Space in accordazu with the applicable provisions of the Garage Easement Agreement and any obligations of the landlord thereunder COnDi~ in any of the Subleases regarding maintenance and repair. LandIord and Master Tenam shall not make any Alterations in or to the Retail Space except for Alterations made by Landlord in accordance with the provisions of the Garage Easement Agreement or any obligations contaiJV'.d in any of the Subleases regarding improvements and alterations, which shall be made by Landlord. ARTICLE 12. REQUIREMENTs Section 12.1 Requirements. (a) Landlord, at its expense, shall comply with all Requirements with respect to the COnstruction, maintenance and operation of the Retail Space, including but DOt limited to maint;lining all permits and licenses for the operation of the Retail Space. No consent to, approval of or acquiescence in any plans or actions of Landlord by Master Tenant, or Master Tenant's designee, shall be relied upon or construed as being a determination that such are in compliance with the Requirements, or, in the case of construction plans, are structt1rally sufficient, prudent or in compliance with the Requirements. (b) In connection with the performance of Master Tenant's obligations hereunder, Master Tenant shall comply promptly with all Requirements. ARTICLE 13. DISCHARGE OF LIENS Section 13.1 Creation of Liens. (a) Except for Mortgages permissible under the Ground Lease, Master Tenant sha1l not create, cause to be created, or suffer or permit to exist (a) any lien, etn1mbrance or charge upon this Master Lease, the leasehold estate created hereby, the income therefrom or the Retail Space or any part thereof or appurtenance thereto, which is not removed within the time period described below, (b) any lien. encumbrance or charge upon any assets of, or funds appropriated to, Landlord, or (c) any other matter or thing whereby the estate, rights or interest of Landlord in and to the RctliI Space or any part thereof or appurtenance thereto might be marcria11y impaired. Notwithstanding the above, (x) Master Tenant shall have the right to execute Mortgages, Subleases and other instruments (including, without limitation, equipment leases) as provided by, and in accordance with, the provisions of this Master Lease and the Ground Lease, and (y) Master Tenant shall have no liability to Landlord under this MJ9626 I 0.07&109/1 9196 9 Article 13 for any lkns. ~r:curr.branc~s or charges caused oy my lC: ~r CC:'..l.SSlCn ':::1..1:; or :"~e Subtenants, their agents, employees or contractors. (b) Landlord shall not create, CJ.llSe to te created, or suffer or permit to ~:tist (a) any iien, encumbrance or charge upon this Master Ua.se, tte leasehold ~tlte createrl b:reby, the ir.come therefrom or the Retail Spac: or any part tterevf or appurte~ thereto, which is not mnoverl within the time period descriCed below, CD) any lien, eo:umb~ or charge UJXIn any assets of, or fur.ds appropriated to, Master Tenant, or (c) any other matter or thing whereby the est3IC, rights or interest of Master Tenant in and to the ~tail Spac: or any part thereof or appunena.x::c:: thereto might be materially impaired. Notwithstanding me above, l..arJjJord shall have !be right to eXealte Facility Mortgages as provided by, and in accordar.ce with. the provisions of tbe Garage Easen:em Agreement. Section 13.2 Dischar<ze of Liens. (a) If any mechanics, lac,.:er's, vendor's, materi:llrn.an's or SlIDllar stamtorj lie~ (including, without limitation, ttl liens, provided the underlying tax is an obligation oi Master Tenant by law or by a provision of this Master L:ase) is f1.led against the ~tail Sp~ or any pan thereof, or if any public improvement lien created, or caused or suffered to be created by Master Tenant shall be f1.led against any assets of, or fuI:ds appropriated to, Master Tenant or Landlord, Master Tenant shall, within thirty (30) days after Master Tenant re--...eives notic: of the filing of such mechanic's, laborer's. vendor's, materialman's or similar surutory lien or public improvement lien, cause it to be discharged of record by payment, deposit, boc.a, order of a court of ~mpetent jurisdiction or otherwise. However, Master Tenant shall not be required to discharge any such lien if Master Tenant shall have 0) furnished Landlord with, at Master Tenant's option, a cash deposit, bond, letter of credit from an Institutional Lender (in form reasonably satisfactory to Landlord) or other security (such as a personal guaranty or title company indemnity) reasonably satisfactory to Landlord, in an amount sufficient to pay the lien with interest and penalties and (ii) brought an appropriate proceeding to discharge such lien and is prosecuting such pr~ing with diligence 1.r.d continuity; ex~t that if, despite Maste: Tenant's efforts to seek discharge of the lien, Landlord reasonably believes that 1 ~urt judgment:r order foreclosing such lien is about to be entered or granted and so ootifies Master Tenant, Masre: Tenant shall, within ten (10) days after noti~ to such effect from Landlord (but not later than three (3) business days prior to the emry or granting of such judgment or order of foreclosure), C3use such lien to be discharged of record or Landlord may thereafter discharge the lien in accord.ar&: wiD Section 16.2 and look to the security furnished by Master Tenant for reimbursement of its CDst in so doing. (b) Notwithstar.ding anything to the contrar"'j con~l~ in Section 13.2(a), if an:; mechanic's, laborer's, vendor's, materialrn:m's or similar stamtory lien (in:luding, without limitation. tax liens, provided the underlying tax is an obligation of Landlord by law or by 1. provision of thJs Master Lease) is flied against the Retail Spac:: or any pan thereof or Master Tenant's inIerest there~ as a result of any action of Landlord, its officers, employees, representatives or agents, t.andlorC shall, within thirty (30) days after Landlord receives noti~ of the filing of such mechanic's, laborer's. vendor's, materialman's or similar stannory lien, cause it to be discharged of record by payment. deposit, bond, order of a coun of competent jurisdiction or otherwise. However, Landlord shall ce( be required to discharge any such lien if Landlord shall have (i) furnished Master Tenant with. J: MI962610.07X/09/19~ 10 .""'" Lmdlord's option. a cash depDsir. ;xmd, letter of cr~it from an lnstirutior.a1 ~nder (in form reasonably satisfactory to Master Tenant) or other security \su~h as a perSonal gua.rant'j or title company indemnity) reasonably satisfactoI"'j to Master Tena.m, in an amount sufficient to pay the lien with interest and penalties and (ii) brought an appropriate proo:eaing to discharge such lien and is prosecuting such proceeding with dilige~ and continuity; except that if, despite I...ardIord' s effortS to seek discharge of the lien, Master Tenant reasonably believes that J coun judgmem or order foreclosing such lien is about to be entered or granted aOO S{) notifies LmdIord, Landlord shall, within ten (10) days of notice to such eff~t from Master Tenant (but not later than three (3) business days prior to the entry or granting of such jUdgmem or order of foreclosure), cause such lien to be discharged of record or Master Tenant may thereafter discharge the lien in aCC{)r~ with S<<tion 16.2 and look to the securit'j furnished by I...ardlord for reimbun.:ment of its cost in so doing. ~tion 13.3. No AUu,1crin' to Contract in Name of Landlord. Nothing contained in tbis Article :.:all be deemed or construed to constiWte the consent or request of Landlord, express or implied, by implication or other.vise, to any contractor, subcontractor, laborer or materialman for the performa"('.e of :my labor or the furnishing of any materials for any specific improvement of, alteration to, or repair of, the Retail Space or any part thereof, nor as giving Master Tenant any right, jX)wer or authority to ct)ntract for, or permit the rendering of, any services or the furnishing of materials that would give rise to the f11ing of any lien, mortgage or other encumbranc.: against Landlord's interest in the. Retail Spac:: or any pan thereof or against assets of Landlord, or l..and1ord':; interest in any Rental. Notice is hereby given, ar.d Master Tenant shall cause all construction agreements .:ntered into by Master Tenant (as opposed to Landlord) to provide, that to the extent enfO~ble under Florida law, Landlord shall not be liable for any work performed or to be performed at the Retail Space or any pan thereof for Master Tenant or any Subtenant or for any materials furnished or to be furnished to the Retail Spac:: or any part thereo f for any of the foregoing, az:d no mechanic's. laborer's, vendor's, materialman's or other similar statutory lien for such worx or materials shall attach to or affect l.and1ord' s interest in the Retail Space or any part thereof or any assets of Landlord, or Landlord's interest in any Rental. Tee foregoing shall not require Master Tenant to ~est adv~ waivers of lien from contractors or subcontractors . ARTICLE 14. REPRESRi'fT ATIONS Section 14.1 No Brokers. Each of Landlord and Master Tenant represents to the other that it has not dealt with any broker. finder or like eDrity in connection with this Master Lease or the transactions contemplated hereby, and each party shall indemnify the other against any claim for brokerage commissions, fees or other compensation by any Person alleging to have acted for or dealt with the indemnifying party in connection with this Master L:ase or the transactions contemplated hereby. M1%26 10.073109/1 9i96 11 L ARTICLE 15. NO LIABILITY FOR INJURY OR D~\1AGE ETC. Section 15.1 Liability of Luxilord or Master Tenant. The liability and exculpation of Lu:d1ord aOO Master Tenant (and indemnification of I...m:i1ord and Master Tenant) under this Master Uase shall be subject to the provisions of Section 17 of the Garage Easement Agreement as if the references in such provisions to the "Agreement" were references to this Master Lease. Notwithstanding the foregoing, Master Tenant shall be liable solely for its conversion. gross negligence and willful misconduct. and shall not in any event be liable or responsible for any act or omission of any Subtenant. Landlord shall indemnify and hold Master Tenant harmless from all other loss, cost. liability, claim, damage and ex~ense (including, without limitation, reasonable attorneys' fees and disbursements), penalties and fines, incurred in connection with the Subleases, including, without limitation. any claims by a Per-"m against Master Tenant or its Affiliates arising from (a) the use or occupancy or manner of use or occupancy of the Retail Space by Landlord or any Subtenant or any Person claiming through or under Landlord or any Subtenant or (b) any acts, omissions or negligence of Landlord (made in its proprietary capacity, if Landlord is the Agency, the City or any instrumentality of the Agency or the City) or any Subtenant or any Person claiming through or under such Landlord (in its proprietary capacity only, if LaOOlord, is the Agency, the City or any instrumentality of the Agency or the City) or such Subtenant, or of the contractors, agents, servants, employees, guests, invitees or licensees of Landlord (in its proprietary capacity only, if Landlord is the Agency, the City or any instrumentality of the Agency or the City) or such Subtenant, or any Person claiming through or under such Person. or (c) any breach by Subtenants under the Subleases, in each case to extent in. about or concerning the Retail Space either during, or after the termination or expiration of. the term of this Master Lease, except to the extent any of the foregoing is caused by the gross negligence or willful misconduct of Master Tenant. The provisions of this Section 13.1 shall survive the expiration or earlier termination of the Term. ARTICLE 16. RlGHT TO PERFORM THE OTHER PARTY'S COVENANTS Section 16.1 Ri~t to Perform Other Party's Obli~ations. If a default shall occur and be continuing beyond any applicable ~ period, either partY may, but shall be under no obligation to, perform the obligation of the other party giving rise to sU,cb default, without waiving or releasing the other party from any of its obligations contained here.1.Il~ provided that such party shall exercise such right only in the event of a bona fide emergency or arte. five (5) business days notice to the other party. Master Tenant hereby grants Landlord acceSS [0 we ,~96261 O,07l1/09119196 12 .-1 Retail Space in order to periorm my 5UCb. obligarion. ar..d Lmdlord bereby grants MJster T::r..anc access to the Facility in order to perform any 5uch obligation, ~tion 16.2 Dischar2;e of Liens. (a) If Master Tenant fails to cause any mechanic's. labo~r's, veooor's, materialman's or similar statutory lien (including, without limitation, tax liens, providing the underiying tax is an obligation of Master Tenant by law or by a provision of this Master Uase) to be discharged of record in accordance with the provisions of Article 13, Landlord may, but shall not be obligated to, discharge such lien of record either by paying the amount claimed to be due or by procuring the discharge of such lien by deposit or by bonding proc=ings. If LardIord' s title is thr-...atencd or a material interest of Landlord is i.mpair~. Lar.d1ord may also, if Master Tenant has not dOD: 50 (or bonded such lien), compel the prosecution of an action for the fon:closure of such lien by the lienor and the payment of the amount of tb~ judgment in favor of the lienor with interest, costs and allowances. (b) If Landlord fails to cause any mechanic's, laborer's, vendor's, materialm.:m's or similar statutory lien (including, without limitation, tax liens, providing the underlying tax is an obligation of Landlord by law or by a provision of this Master Lease) to be discharged of record in ~rt:im:.: with the provisions of Article 13, Master Tenant may, but shall not be obligated to, discharge such lien of record either by paying the amount claimed to be due or by procuring the discharge of sucn lien by deposit or by bonding pr~ings. If Master Tenant's leasehold interest in the Retail Spa~ (or any portion thereat) is threatened or a material interest of Master Tenant is impaired, Mas!.:r Tenant may also. if Landlord has not dor..e so (or bonded such lien), campel the prosecution of an action for the foreclosure of such lien by the lienor and the payment of the amount of the judgment in favor of the lienor with interest, costs and a1low~s. Section 16.3 Reimbursement for Amounts Paid Pursuant to t.l:tis Article. (a) Any amount paid by Landlord in performing Master Tenant's obligations as provided in this Article, including. without limitation, all costs and expenses incurred by Landlord in connection therewith, shall constitute Rental hereunder and shall be reimbursed to Lar...dlord within thirty (30) days of Landlord I s demand, together with a late charge on amounts actually paid by Landlord, calculated at the ute Charge Rate from the date of noti~ of any such payment by Landlord to the date on which payment of such amounts is received by Land.1ord. (b) Any amount paid by Master Tenant in performing Landlord's obligations as provided in this Article, including, without limitation, all casts and e;tpcnses incurred by Master Tenant in connection therewith. shall be reimbursed to Master Tenant within thirty (30) days of Master Tenant's demand, together with a late charge on amounts actually paid by Master Tenant, calculated at the Late Charge Rate from the date of noti~ of any such payment by Master Tenant to the date on which paYlllent of such amounts is ~ived by Master Tenant. ~%261007S109/19196 13 Section 16.4 Waiver. Release and Assumption of Obligations. (a) Landlord' s payment or performance pursuant to the provisions of this Article shall not be, nor be deemed to constitute, Landlord's assumption of Master Tenant's obligations to payor perform any of Master Tenant's past, present or future obligations hereunder. (b) Master Tenant's payment or performance pursuant to the provisions of this Article shall not be, nor be deemed to constitute, Master Tenant's assumption of Landlord's obligations to payor perform any of Landlord's past, present or future obligations hereunder. ARTICLE 17. EVE.l\(fS OF DEli" AULT, CONDmONAL LIMITATIONS, REMEDIES, ETC. Section 17.1 Defaults. (a) If Landlord or Master Tenant defaults in the performance of any obligation required of it under this Master Lease (whether monetary or nonmonetary), and the defaulting party fails to cure such default within thiny (30) days after Notice by the nondefaulting party of such default, or if such a nonmonetary default is of such a natu.re that it cannot reasonably be remedied thiny (30) days after the giving of such default Notice (but is otherwise susceptible to cure). the defaulting party shall not (i) within thiny (30) days after the giving of such default Notice. advise the nondcfaulting partY of the defaulting party's intention to instiwte all steps (and from time to time. as reasonably requested by the nondefaulting party, the defaulting party shall advise the nondefaulting party of the steps being taken) necessary to remedy such default (which such steps shall be reasonably designed to effectuate a cure of such default in a professional manner), and (ii) thereafter diligently prosecute to completion all such steps necessary to remedy the same, then the nondefaulting party is entitled to pursue any and all available remedies at law or in equity. (b) The following shall also be an event of default under this Master Uase: (i) to the extent permitted by law, if Master Tenant admits, in writing, that it 15 generally unable to pay its debts as such become due; (ii) to the extent permitted by law, if Master Tenant makes an assignment for the benefit of creditors; (iii) to the extent permitted by law, if Master Tenant files a voluntarY petition ~er Title 11 of the United States Code. or if Master Tenant files a petition or an answer seebOg, consenting to or acquiescing in, any reorganization. arrangement. composition. readjuStII1en!~ liquidation, dissolution or similar relief under the present or any future Federal bankruptcy code 0 r \a...' any other prescnt or furore applicable Federal, state or other bankruptcy or insolvency statute 0 'an or seeks. consents to. acquiesces in or suffer> the appoinlment of any trustee. receiver. cuswd1"" assignee, sequestrator, liquidator or other similar official of Master Tenant, of all or any sUbstall 14 ~ Ml9626 10,07&109/191'96 part of its properties. or of JJl or 111:( ;Jar: a ( .\b..ster T ~r:.a.nt' 5 inrer:st 1.11 the Ret.1il Soace .lr:d ~~c foregoing are not stayed or dismissed within ace 2.ur..d~ 1I1d fifty (150) days liter ~uch tiling Qr ocher action; (iv) to the extent permitted by law, if. within one hundred azxi fifty (150) days after the commencement of a proceeding against Master T enam seeking any reorganization. arrangement, composition. readjustment. liquidation. dissolution or similar relief under the present or any future Federal bankruptcy code or any other present or fuDJ.re applicable Federal. state or other banlauptcy or insolvency statute or law, such proceding has not ~n dismissed. or if. within ace hundred and eighty (180) days after the appointment. without the CDD.Sent or acquie~~ of Master Tenant. of any trUStee. receiver, custodian. assignee, sequestrator, liquidator or other similar official of Master Tenant, of all or any substantial part of its properties, or of all or any part of Master Tenant's interest in the Retail Space, such appointment has not been V::IC3ted or stayed on appeal or otherwis.e. or if, within one hundred and eighty (180) days after the expiration of any such suy, such appointment has not been vacated; or (v) if a levy under exec:'::lon or attachment in an aggregate amount of 52.:50,00), adjusted for inflation, at anyone time, is made against the ~tail Space or any part thereof or rights appertaining thereto (except for a levy made in CDnnection with actions ta.k=n by Landlord (other than solely as holder of Landlord I s ownership intex-..st in the Retail Space)), the income therefrom, this Master Lease or the leasehold estate created hereby and such execution or attachment is not vacated or removed by court order, bonding or otherwise within a pcricd of sixty (60) days after such leyy or attachment, subject to Unavoidable Delay). Section 17.2 Termination. Notwithstanding Section 17.1, Landlord shall not have any termination or rescission rights in cmlDcction with an uncured default by Master Tenant under this Master Lease. This Master Lease may only Ce termirulfl"d by I...anrllord in conjUlxtion with 1 termination of the Garage Easement Agm:ment or Ground Lease pursuam to the terms thereof. Any termination of the Garage Easement A~ent or Ground Lease (e:t~-pt for a termination of IDe Ground Lease in connection with the purchase by Master Tenant of fee title to the R.:tail Space) shall Ce deemed to be a termination of this Master Lase. Section 17.3 Ground Lease. Any Event of Default umer the Grour.d Uase shall l:e deeIr.ed to be a default following the expiration of all cure pericds urder this Master L:3se. entitling Lar.d1ord to exercise its available remedies hereunder. Section 17.4 Remedies U oder Banlcruotcy and Insolvency Codes. If an order for relief is entered or if any stay of p~ing or other act becDmes effective against Master Tenant or Master Tenant's interest in this Master Lease or Landlord or Landlord I s interest in the Master Lease as applicable, in any proc~ing which is CDmmenced by or against Master Tenant or Landlord, as applicable, under the present or any future Federal Bankruptcy Code or in a proceeding which is comme~ by or against Master Tenant or LaIxilord, as applicable, seeking a reorganization. arrangement. comp<:>sition, readjustment. liquidation, dissolution or similar relief under any other present or future applicable federal, state or other banhuptcy or insolvency M:I%26 I 0.07&1091\9f96 15 statute or law, Lmdlord or Master T:::nam. as applicable, shall be t;:ntitled to invoke any ar.d all rights and remedies available to it under such bankruptcy or insolvency ccxie, statute or law or this Master Lease (except to the extent Landlord's remedies and Master Tenant's remedies are expressly limited by the tcrms hereof). Section 17.5 Inspection. Except to the extent otherwise provided in the Subleases, Landlord and its representatives shall have the right, upon twenty-four (24) hours prior notice to Mastcr Tenant, to enter upon the Retail Space (a) to inspect the operation, sanitation, safety, maintenance and use of the same and to perfonn maintenance, repairs and replacements as required by the Garage Easement Agreement, this Master Lease or the Subleases and (b) to conduct inspections for the purpose of determining whether a default or event of default has occurred, provided that Landlord shall be accompanied by a representative 0 f Master Tenant (in areas of the Retail Space other than areas readily available to the general public), and provided further that such entry sl:..lll not unreasonably interfere with the operation of the Retail Space. Master Tenant agrees to make a representative of Master Tenant available to accompany Landlord. ARTICLE 18. NOTICES, CONSE.~ AND APPROV Al..S I I i j I I Section 18.1 Service of Notices and Other Communications. All Notices and consents under this Master Lease shall be provided in accord.an:e with rr.<: applicable provisions of the Garage Easement Agreement as if the references in such provisions to the ~ Agreement ~ were references to this Master Lease. ARTICLE 19. CERTIFICATES BY LANDLORD AND MASTER TEN.A.~l Section 19.1 Certificates. The parties shall have the right to request for reasonable purpoSl:S estoppel certificateS be g:",~ by the other party, in the same man~r as provided for estoppel certificates pursuant to Article 27 at ~. Ground Lease. MJ9626 10. 07 !/O911 9196 16 ARTICLE 20. SURRENDER AT END OF TERM Section 20.1 Surrender of Retail Space. Upon the Expiration of the Term. Master Tenant. without any payment or allowance whatsoever by Landlord, shall surrender !be R&il Space to Landlord in !be condition existing as of !be Expiration of the Term. free and clear of all liens and encumbr;m;e caused by Master Tenant (other than the Subleases). Masler Tenant hereby waives any notice IlOw or hereafter required by law with respect to vacaung the Retail Space on the Expiration of the Term. ARTICLE 21. QUIET ENJOYMENT Section 21.1 Quiet Enjovment. r Landlord covenants that. as long as this Master Lease is in full force and effect. Master Tenant L sball and may (subject to the exceptions. reservations. terms and conditions of this Master Lease) ~. peaceably and quietly have, hold and enjoy !be R&il Space ~ !be Tcnn without molestation or i disturbance by or from Landlord (solely in its proprietary capacity) or any Person claimrng by, under or · through Landlord (solely in its proprietary capacity). ~. ;j:; . ,;, t ARTICLE 22. HAZARDous MATERIALs i Section 22.1 Hazardous Materials. ~.. Nothing containPd in this Master Lease shall be deemed to modify the provisions of Section 18 : of the Garage Easement Agreement. ~ ARTICLE 23. 1 t !..- NONDISCRIMINATION Section 23.1 Nondiscrimination. ;; , . LlndIord and Master Tenant agree that they will not cogage in any unlawful discrimination l'l:'inst any Person because of race, cn:cd, national origin. sex, age, disability, marital SllUlts or sexual :}- orientation 4 . - . .. i i . 1: l'1OO1_,..... 17 ARTICLE 24. INDICTMENT, INVESTIGA nONS, ETC. Section 24.1 Cooperation in Investi~ations. To the extent required by Re11uirements, Master Tenant shall cooperate fully and faithfully with any investigation, audit or inquiry conducted by any Governmental Authority that is empowered directly or by designation to compel the attendance of witnesses and to e::r.amiJV! witnesses under oath. or conducted by a Governmental Authority that is a pany in interest to the transaction, submitted bid. submitted proposal, contract, lease. permit, or li~nse that is the subject of the investigation, audit or inquiry. In addition, Master Tenant shall promptly repan in writing to the City Attorney of the City of Miami Beach, F10rida any solicitation, of which Master Tenant's offi~rs or directors have knowledge, of money, goods, requests for future employment or other benefit or thing of value, by or on behalf of any employee of the Agenc:' J City or other Person relating to the procurement or obtaining of this Master Lease by the Master Tenant or affecting the performaJ'\Cl'" of this Master Lease. ARTICLE 25. MISCELLANEOUS Section 25.1 Governing Law, This Master Lease shall be governed by, and construed in accordance with, the laws of the StJte of F1orida, without regard to principles of conflict of laws. Section 25.2 References. (a) Captions. The captions of this Master Lease are for the purpose of conveniro;e of reference only, and in no way define, limit or describe the scope or intent of this Master Lease or in any way affect this Master Lease. (b) Reference to Landlord and Master Tenant. The use herein of the neuter pronoun in 1I1: reference to Landlord or Master Tenant shall be deemed to include any individual Landlord or Mast:r ...mm1400' or Tenant, and the use herein of the words "sucassors and ~p.~" or "~ or ~~ Landlord or Master Tenant shall be deemed to include the heirs, legal representatives and assigns of an: individual Landlord or Master Tenant. (c) A~eIlCY's and City's Governmemal Capacity. Nothing in this Master Lease o~ in ~ parties' acts or omissions in connection herewith shall be deemed in any mal1TV'!f to waive, impaU'. tun.;: or otherwise affect the authority of the Agency or City in the discharge of its police or gove~c.LJ.. power. ter: dis' of Te: -~ as ins in ~ ,. >('~. ~. :1"'_"'" Le ch; w:: ag: to 1.: co' ev 1.: !S. th at te: la' 1 '. !I: ht U: P< ~ . I ,~' ~ 1\11962610.071109/191'96 18 (d) Reference to . herein', . hereunder'. etc, All referer~s in this Master L.:as.: to tl-..e terms "herein". "hereunder" aIXi words of similar import sball refer to this Master Lease. 15 distinguished from the paragraph, Section or Anicle within which such term is located. Section 25.3 Entire A~m. etc. (a) Entire Agreemem. This Master L:ase, together with the attachments hereto, contains all of the promises, agreements, conditions, ir.duc...-mems and uOOeTSundings between Lm:i1ord ani Master Tenant concerning the Retail Space and there are no promises, agreements, conditions, undcrst.m:1ings, inducements, warranties or represemations, oral or written, express or implied, between them other than as expressly set forth herein or as may be expressly conuined in any enforceable written agm:mems or instruments executed simultaneously herewith by the parties heretO. This Master Lease may he executed in COunIerpans, each of which shall be deemed an original but all of which together shall represem one instrUIl1em. (b) Waiver, Modification. etc. .lo covenant, agreemem, term or condition of this Master Lease shall be changed, modified, altered, waived or terminated except by a written inst:rUIDCD1 of change, modification, alteration, waiver or termination executed by Landlord and Master Tenant. No waiver of any Default or default shall affect or alter this Master Lease. but each and every covenant. agreemem, term and condition of this Master Lease shall continue in full force and effect with respect to any other then existing or subsequem Default or default thereof. (c) Effect of Other Transactions. No Sublease or Mortgage (as defined in the Ground Lease), whether executed simultaneously with this Master Lease or otherwise, and whether or not consented to by Landlord, shall be deemed to modify this Master Lease in any respect, and in the event of an inconsistency or conflict between this Master Lease and any such instrumem. this Master Lease shall control. Section 25.4 Invalidity of C~ruin Provisions If any provision of this Master Lease or the application thereQf to any Person or circumsta.I:x:es is, to any extent, fInally determined by a court of competent jurisdiction to be invalid and unenforceable, the remainder of this Master Lease, and the application of such provision to Persons or circumsta.I:x:es other than those as to which it is held invalid and unenforceable, shall not be affected thereby and each term and provision of this Master Lease shall be valid and enforceable to the fullest extem permitted by law. Section 25.5 Remedies Cumulative. Each right and remedy of either party provided for in this Master Lease shall be cumulative and shaU be in addition to every other right or remedy provided for in this Master Lease. or DQW or hereafter existing at law or in equity or by stawte or otherwise, except as otherwise expressly limited by the terms of this Master Lease or the Ground Lease. and the exercise or beginning of the exercise by a P<1rty of anyone or more of the rights or remedies provided for in this Master Lease, or oow or hereafter existing at law or in equity or by statute or otherwise, except as otherwise expressly limited by ~962610.078J09/191'96 19 the terms of this Master Lease or the Ground Lease. shall not preclude the simultaneous or later exercise by such party of any or all other rights or remedies provided for in this Master Lease or now or hereafter existing at law or in equity or by statute or otherwise except as otherwise expressly limited by the terms of this Master Lease or the Ground Lease. Section 25.6 Perfonnance at Each Party's Sole Cost and Expense. Unless otherwise expressly provided in this Master Lease, when either party exercises any of its rights, or renders or performs any of its obligations hereunder, such party shall do so at its sole cost and expense. Section 25.7 Successors and Assi2IlS. The agreements, terms, covenants am conditions herein shall be binding upon, and insure to the benefit of, Landlord and Master Tenant ar:d, except as otherwise provided herein, their respective successors and assigns and shall be consttued as covenants running with the land. If, while the AgelXY is the Landlord hereunder, the Agency shall cease to exist, the City, by its signature hereto, hereby agrees to be bound by the terms, covenants and conditions of Landlord hereunder and Master Tenant agrees to recognize the City as Landlord hereunder. Section 25.8 Record~ of Master Lease. Neither Landlord nor Master Tenant shall cause this Master Lea.se or any amendments hereto or any memoranda hereof to be recorded in any Public Records. Section 25.9 Corporate Obli~ations. It is expressly understood that this Master Lease and obligations issued hereunder are solely corporate obligations, and, except as otherwise provided in Section 17 of the Garage EasemeIl! Agreement, that no personal liability will attach to, or is or shall be incurred by, the ~rporawrs, stockholders, officers, members, partners, holders of other OWIJII:rship interests, directors, elected or appointed officials (including, without limitation, the Chairman and Members of the Landlord and the Mayor and Commissioners of the City and the members of any other governing body of Landlord) or employees, as such, of the Landlord or Master Tenant, or of any succ~r corporation or other successor entity, or any of them, under or by reason of the obligations, covenants or agreementS. contained in this Master Lease or implied therefrom; and, except as otherwise provided in Section 17 or the Garage Easement Agreement, that any and all such personal liability, either at common law or lD equity or by constitution or stanlte, of, and any and all such rigb!s and claims ~ every SUCh incorporator. stockholder, officer, member, partner, holder of other ownership interests. dif'eCWr. elected or appointed official (including. without limitation. the Chairman and any Member of IDe Landlord and the Mayor and Commissioners of the City and the members of any other governing bOd! of Landlord) or employee, as such, or under or by reason of the obligations, covenants or agreeroenr:s contained in this Master Lease or implied therefrom are expressly waived and released as a condition at. and as a consideration for, the execution of this Master Lease. Ml9626 I 0,0711/09/191% 20 c t C C< Cll It ~ ; , Section 25.10 Nonliabiliry of Officials and Emplovees. Except as otherwise provided in Section 17 of the Garage Easement Agreement. no member. official or employee of the Landlord or the City shall be personally liable to Master Tenant, or any successor in interest, in the event of any default or breach by the Landlord or for any amount or obligation which may become due to the Master T enam or successor under the terms of this Master Lease; and, except as otherwise provided in Section 17 of the Garage Easement Agreement, that any and all such PCrsonalliability, either at common law or in equity or by constitution or statute, of, and any and all such rights and claims against, every such Person, or under or by reason of the obligations, covenants or agreements contai'led in this Master Lease or implied therefrom are expressly waived and released as a condition of, and as a consideration for, the execution of this Master Lease. Section 25.11 Conflict of Interest. Master Tenant represents and Warrants dlat, to the best of its actual knowledge, no member, official or employee of the Landlord or the City has any direct or indirect financial interest in this Master Lease, nor has participated in any decision relating to this Master Lease that is prohibited by : law. Master Tenant represents and Warrants that, to the best of its knowledge, no officer, agent, . .,' employee or representative of the City of Miami Beach or Landlord has rec:ived any payment or ' " other consideration for the making of this Master Lease, directly or indirectly from Master Tenant. : - Master Tenant represents and warrants that it has not been paid or given, and will not payor give, : . any third person any money or other consideration for obtaining this Master Lease, other than normal " costs of conducting business and costs of professional services such as architects, engineers, and . "attorneys. Master Tenant acknowledges that Landlord is relying upon the foregoing representations .- and warranties in entering into this Master Lease and would not enter into this Master Lease absent . _ the same. ~:: ..... .,.#~ '~" Section 25.12 No Partnership. ~'~,:,: The panies hereby acknowledge that it is not their intention under this Master Lease to create between themselves a partnership, joint venture, tenancy-in-common. joint tenancy, co-ownership or f'. agency relationship for the purpose of developing the Hotel, or for any other purpose whatsoever. . '. Accordingly, notwithstanding any expressions or provisions conta i~ herein, nothing in this Master Lease, whether based on the calculation of Rental or otherwise, shall be construed or deemed to t.Cleate, or to express an intent to create, a Partnership, joint venture, tenancy-in-<:ommon, joint J ~, co-owne~hip or a~eIJCY z:elationship o~ any ~ .or nature whatsoever between the parties i. . The prOVISIOns of this SectIon shall survIve ExpIratIon of the Term. r . Section 25 .13 Time Periods. ; , r Any time periods in this Master Lease of less than thirty (30) days shall be deemed to be ; ~ based on business days (regardless of whether any such time period is already designated as >;:: COmputed based on business days). In addition, any time period which shall end on a day other ~ a Business Day shall be deemed to extend to the Dext Business Day. f i . ... rlOO7_",.. 1 i 21 Section 25, 14 Radon Notice. NOTICE REQUIRED BY CHAPTER 88-285. LAWS OF FLORIDA Chapter 88-285, Laws of Florida, requires the following ooti~ to be provided with respect to the contract for sale and purchase of any building, or a rental agreement for any building: "RADON GAS: lUdon 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 and radon testing may be obtained from your county public health unit. " Section 25.15 No Third PartY Benef.ciaries. Nothing in this Master Lease shall confer upon any Person, other than the parties hereto and their respective successors and permitted assigns, any rights or remedies under or by reason of this Master Lease; provided, however, that a Recogni7.ed Mortgagee or its Designee and a Facility Mortgagee or its Designee shall be a third party beneficiary hereunder to the extent such Recognized Mortgagee or such Designee or such Facility Mortgagee or such Designee is granted rights hereunder or under the Garage Easement Agreement. Section 25 .16 Sales Tax on Rents. The parties acknowledge that the payment to Landlord of Percentage Rent under this Master Lease is not intended to be consideration paid in exchange for the rental, lease, letting or license for use of the Retail Space. Master Tenant is merely remitting to Landlord a portion of the Gross Retail Revenues received from the Subtenants, and Master Tenant does not intend to occupy any ponioo or the Retail Space. Therefore, it is the parties' intention that the Percentage Rent payable by Master Tenant not be subject to the State of Florida sales tax on rents. The parties shall enter into any necessary modifications to this Lease to comply with any Florida Department of Revenue requirements in order to achieve nontaxable status in connection with the Percentage Rent payable b~ Master Tenant hereunder. Nothing contained herein shall be construed to modify the responsibility at the Subtenants to pay such sales tax on the rentals due under the Subleases. ."il9616 I O.078109fI9,1J6 ..,.., ..- l' ~,"" .. EXECUTION IN WITNESS WHEREOF, Landlord and Master Tenant, intending to be legally bound, have executed this Master Lease as of the day and year first above written. ATTEST: By:j2oLul-ltr.L- Robert Parcher Secretary MIAMI BEACH REDEVELOPMENT AGENCY ber FORM APPROVED REOEVaOPMENT AGENCY GAERAL ~.~~ By lf~ . Date 7/~/lt , ~IO.071109119196 23 A TIEST: By: /~~ ~/. Secretary MI962610.071109/19~ ME REDEVELOPMENT, INC. .' ( ~ ~ B ~ 24 ,'SOLE1;Y FOR rdE PURPoSES OF SECTION 25.7 OF"THE FOREGOING MASTER LEASE: CITY OF MIAMI BEACH. FLORIDA ATTEST: By: eo~d- YCL<-clv- Robert Parcher City Clerk FORM ~ PF"7','"" '-, '. l ,\ I , ,_ ~ LEGAL DEF"; : ~9ff:1- , ~IQ.07I1owI9/96 25 1 2 3 EXHIBIT A LAND 111. PIa tr.r;e BEG Btxx 44J. ita SfJld ~J: Saltl to flf -doWl 'fI1JI I, Scld I JctSS) Ml962610.071109/19/96 T ::::'::-: : 3::- ,.:., LEGAL OESCF~/PTIO/V: LJlS 8.9.10.11.12 aOO IJ.Bloct 51.F/sters f:/rsf SubdIvIsIon eX Alton Beach.occordlnq to t,"'e Plat fterd.as r!JCt)("ded In Plat Book 2..PcqfJ T1 a fre Pub/fc Rf!X::Crds ci Dade COOrrty.F:cr/cc. trqIf'N wrtn 011 at" 16th StrM (lwtJf'l.Je 'c-J. less and fJX~ tte fo/lONIrr; descrlb8d PJrcel: BEGINNING at tm SaJfllNest corntJr a 81ccx 54 a sc!d Ffster's FIrst SubdIVIsIon at" A/t0l'l 8<<JCI! Plat: tterr::lJ NorTh 88' 0' 5Y East along tm Sa./fh IIf'1IJ CJ' saId 8/oct 54.0 dlstof"OJ at #J.08 'w.to tm SaJff7tJcst carntJr cf sold Bleck 54: tl'rJnt:::JJ Sa./fn or 35' (HI Wesf.o dlSfa~ of ~ '..to a poIrt of CUSf) with a torx;ert curve ~ to tte Sa.JthNe.st: fIwr::tJ along tte arc at sold CVfWJ to tte l~f.frNlng a radIus a 25m 'fJI!i and 0 CtJf'tral angle CJ' 9O'fX)' W.on arc dlsta~ ~ J90 ,...to a poIrt CJ' tangency:ttrn::e North 82' 24' 5Z'WtJSf.a dIstance CJ' 2475 'tJI!Jf:t~ Sa./fh 88CXY 5J" Wss/ along a II,., 8.co '. North a' and f)fJrallel wtlfh,os lfI<<J.sur<<J f1f rlgtt arr;les 10 tie Ncrth I1I7tJ of Bleck 51 a' $Cld plat.a dlsfanaJ a 382J8 ,. to a f)CIrion tte Easterly RlqlT -a--iNflt II"" of Wastlngton Av~ t~ North or 59' II' Wast along said EasttJily RIgtt-d- wt/f lIntJ.a dlstaf1C8 of 62J.XJ 'flti to tte SCtJfllNesf corrrr of $Cld Bloct 54 and tte PrJrt cf bet;lnrlnq. Sold lands lyIng and belnq In ttoe CIty cf' ),JlamJ 8tJoc1? and CtYlIalnlng 65.910 .squcr~ f~ (/.5/31 JctssJ roor~ cr /65S. , 1 1 2 3 EXHIBIT 2.1 FLOOR PLAN OF RETAil.. SPACE Ml96261 0.071109/19196 .-::3::- .:.~ -.... I .. .. ~ rI ~ .. . ! I C II f' I. I! .Id. t! f 'i Ij.8 .. ,. J.::: - I . . ! !' I : n . ., .. .. ~:. ;,." ,. ,21 r - !! ,"I _. of ;f iHi Iff JIIII -". ... '" ... ... .... .... .... I ~ ~ C II ~ ! I i , f ! I ~ J II I = :;/ ~ c! I !iI ~ :: ~iI <> ii' ~II- ! :.: ':I~ .'JI,~I,II,~il~il,1 HIll/INN fo ;'111 ~ .. 1.- Cl' . J C ,. N r,1:. : '... , I "iJI'.il!/11 I': < 1J~'JIJ' I I 18 1~ 2 - , ~ *0 /-- -... GARA.GE EASEMENT AGREEMENT between MIAMI BEACH REDEVELOPMENT AGENCY, Owner and ME REDEVELOPMENT, INC. Grantee Dated as of September 20, 1996 PREPARED BY: Andrew L. Jagoda, Esq. Squire, Sanders & Dempsey 350 Park Avenue 15th Floor New York, New York 10022 RECORD AND RETURN TO: Kolleen O.P. Cobb, Esq. Hughes Hubbard & Reed LLP 201 South Biscayne Boulevard Suite 2500 Miami, Florida 33131 008:(04_.00cs.MlNoClJCAAACE_EASEMENr _9-19-116. release of the rerainage. provide to Grantee reasonable evidence that the Condemnation Restoration relating to that portion of the work has been paid for in full. (iv) If the amount of any Net Condemnation Award shall exceed the entire cost of the Condemnation Restoration, such excess, upon completion of the Condemnation Restoration, shall be paid to and rerained by such Successor Owner. 14. INSUR~'iCE REQGlREMENTS. (a) Liability Insurance. At all times during the Term, Owner, at its sole cost and expense, shall carry or cause to be carried by Garage Operator (or any other Person) insurance against liability with respect to the Garage and the operations related thereto, whether conducted on or off the Garage of not less than ten million dollars ($10,000,000) per occurrence (subject to adjustment for inflation), combined single limit, with a deductible determined by Owner of not more than $10,000 per occurrence, subject to adjustment for inflation and designating Owner as a named insured. The insurance required under this subsection 14(a) shall include the following: (i) Garagekeeper's legal liability coverage in an amount not less than five million dollars ($5,000,000.00) (subject to adjustment for inflation) per occurrence, with a deductible determined by Owner, but not more than one hundred thousand dollars ($100,000.00) per loss, subject to adjustment for inflation; and (ii) automobile liability insurance covering any automobile owned, not owned or hired in an amount not less than ten million dollars ($10,000,000.00) (subject to adjustment for inflation) per occurrence, with a deductible determined by Owner of not more than one hundred thousand dollars ($100,000.00) per loss, subject to adjustment for inflation. Such insurance shall meet all of the standards, IL-nits, minimums and requirements described in Section 7.7 of the Lease, except for the provisions regarding Recognized Mortgagees and except that all determinations shall be made by Owner (except for the determination made pursuant to Section 7. 7(m) of the Lease, which shall be made by Owner subject to the approval of Grantee and the City). (b) Prooerrv Insurance. At all times during the Term, Owner at its sole cost and expense, shall carry or cause to be carried "All Risk" (or its equivalent) property damage insurance protecting Owner against loss to the Facility Premises with replacement cost valuation and a stipulated value endorsement in an amount not less than the Full Replacement Value (as determined in this Section 14) and meeting all of the other standards, limits, minimums and requirements described in Section 7.8 of the Lease, except that (i) the provisions regarding Recognized Mortgagees shall be deemed to run in favor of and refer to Facility Mortgagees rather than Recognized Mortgagees, (ii) all determinations shall be made by Owner (except for the determination made pursuant to Section 7.8(d) of the Lease, which shall be made by Owner subject to the approval of Grantee and the City) and (iii) the reference in Section 7. 8(n) of the Lease to "hotels of similar size and location" shall be deemed to be a reference to garages of similar size and location to the Facility. (c) Other Insurance. At all cimes during the Term, Owner shall procure Jnd carry insurance with respect to the Facility Premises meeting all of the standards, limits, minimwns, and requirements described in Section 7.9 of the Lease, except that (i) the provisions D08:(o.\lll4. DOCS.MlAMr,c;^llAGE_E.~EME."'" _ '/0.19-\16. - 31 - (viii) Detennination of ReD!acement Value. (I) Definition. The current replacement value of the Facility ("Replacement Value~) shall be the full cost of replacing the Facility according to Requirements in effect at that time, including, without limitation, all hard costs of construction as well as the costs of post-casualty debris removal, and soft costs, including without limitation, architects'. engineers', surveyors', assessors' and other professional fees and development fees. Upon substantial completion of the Facility, Replacement Value of the Facility shall be deemed to be an amount equal to the actual costs incurred or expended in connection with the construction of the Facility as certified by an architect upon completion of the Facility. inCluding foundations, adjusted for each year after completion of the Facility in accordance with the percentage change in the Building Index. If the insurance required by subsection 14(b) above is not sufficient to cover the Replacement Value, then within fifteen (15) days after such adjustment, said insurance shall be increased or supplemented to fully cover such Replacement Value. In no event shall such Replacement Value be reduced by depreciation or obsolescence of the Facility. (II) Building Index. As used herein, the '"Building Index" shall mean the Marshall and Swift Cost Index or such other published index of construction costs designated by Owner. (ix) Additional Interests. All liability policies shall contain a provision substantially to the effect that the insurance provided under the policy is extended to apply to Grantee, its AffIliates, the City, any Facility Mortgagee and any Recognized Mortgagee. Any holder of a Facility Mortgage which, pursuant to such Facility Mortgage, is required to be named under any of the insurance carried hereunder shall be named under a standard New York form of mortgagee endorsement or its equivalent. (x) Waiver bv Grantee and Recognized Mortgagees. Notwithstanding any other provision of this Agreement, (I) upon request of Owner or any Facility Mortgagee, Grantee and any Recognized Mortgagee shall execute all documents and take all actions reasonably requested by Owner or any facility Mortgagee to waive the rights of Grantee and such Recognized Mortgagee to receive the proceeds under any insurance policy provided for hereunder, provided that such proceeds are applied in accordance with this Agreement, and (II) neither Grantee nor any Recognized Mortgagee shall have the right to adjust any insurance provided for hereunder. (f) No Representation as to Adequacv of Covera~e. The requirements set forth herein with respect to the nature and amount of insurance coverage to be maintained or caused to be maintained by Owner hereunder shall not constitute a representation or warranty by Owner or Grantee that such insurance is in any respect adequate. (g) Blanket or Umbrella Policies. The insurance required to be carried by Owner pursuant to the provisions of this Agreement may, at the election of Owner. be effected by blanket, wrap-up andJor umbrella policies covering the Garage and other properties, provided such policies otherwise comply with the provisions of this Agreement and allocate to the Garage !)Q6: 10._. DOCS. 101 IAMI)GMtAGE _ EA.SEMENr _ <J..19-<>6. - 34 - the specified coverage, including, without limitation, the specified coverage for all insureds required to be named as insureds or additional insureds hereunder, without possibility of reduction or coinsurance by reason of, or because of damage to, any other properties named therein. If the insurance required by this Agreement shall be effected by any such blanket or umbrella policies, Owner shall furnish to Grantee and the City certificates of insurance and, upon the request of Grantee or the City, copies (certified by Owner to be true, complete and correct) of such policies together with schedules annexed thereto sening forth the amount of insurance applicable to the Garage. (h) Subleases. All Retail Space leases shall require the tenant to carry liability insurance naming Owner as named insureds and the City, Grantee, its AffIliates, any Facility Mortgagee and any Recognized Mortgagee as additional insureds with limits reasonably prudent under the circumstances. (i) Grantee Fee Mortgagees. If Grantee or any of its permined successors or permined assigns acquires title to the fee interest in the Grantee Land, then the holder of any mortgage encumbering such fee interest shall have the rights provided to a Recognized Mortgagee under this Section 14. 15. NO PARTNERSHIP. Nothing contained in this Agreement shall be deemed or construed to create a partnership or joint venture of or between Owner and Grantee. 16. NOTICES. (a) In WritinlZ. Whenever it is provided herein that notice, demand, request, consent, approval or other communication shall or may be given to, or served upon, any of the parties by the other (or any Recognized Mortgagee or Facility Mortgagee), or whenever any of the parties desires to give or serve upon the other any notice, demand, request, consent, approval or other communication with respect hereto or to the Garage, each such notice, demand, request, consent, approval or ocher communication (referred to in this Section 16 as a "Notice") shall be in writing and shall be effective for any purpose only if given or served by (i) certified or registered U.S. Mail, postage prepaid, return receipt requested, (ii) personal delivery with a signed receipt or (iii) a recognized national courier service, addressed as follows: If to Grantee prior to the Hotel Opening Date: ME Redevelopment, Inc. 407 Lincoln Road Suite 6-K Miami Beach, Florida 33139 Anention: Eric N esse 008:(04_. DOCS. M lAMllCAllACE _ EASEME!'(T _ 9-19-~. - 35 - SECTION VIII - DOCUMENTS TO BE COMPLETED AND RETURNED TO CITY 1. Proposer Information 2. Acknowledgment of Addenda 3. Fee Proposal Form 4. Declaration 5. Questionnaire RFQNO.: DATE: 00/00 3/16/00 MIAMI BEACH REDEVELOPMENT AGENCY 20 PROPOSER INFORMATION Submitted by: Entity: Signature: Name (Typed): Address: City/State: Telephone: ( ) Fax: ( ) It is understood and agreed by proposer that the RDA reserves the right to reject any and all proposals, to make awards on all items or any items according to the best interest of the RDA, and to waive any irregularities in the RFQ or in the proposals received as a result of the RFQ. It is also understood and agreed by the proposer that by submitting a proposal, proposer shall be deemed to understand and agree that no property interest or legal right of any kind shall be created at any point during the aforesaid evaluation/selection process until and unless a contract has been agreed to and signed by both parties. (Authorized Signature) (Date) (Printed Name) RFQNO.: DATE: 00/00 3/16/00 MIAMI BEACH REDEVELOPMENT AGENCY 21 REQUEST FOR PROPOSALS NO, 69-99/00 ACKNOWLEDGMENT OF ADDENDA Directions: Complete Part I or Part II, whichever applies. Part I: Listed below are the dates of issue for each Addendum received in connection with this RFQ: Addendum No.1, Dated Addendum No.2, Dated Addendum No.3, Dated Addendum No.4, Dated Addendum No.5, Dated No addendum was received in connection with this RFQ. Part IT: Verified with Procurement staff Name of staff Date Proposer - Name Date (Signature) RFQ NO.: DATE: 00100 3/16/00 MIAMI BEACH REDEVELOPMENT AGENCY 22 PRICE PROPOSAL FORM This proposal shall include a proposed Management Fee for managing and leasing the facility in accordance with Section II of this RFQ. The figure should be expressed as a flat fee or as percent of lease revenues collected by the Property Manager. Flat Fee $ or % of Revenues PROPOSER'S NAME: SIGNATURE: TITLE: ADDRESS: TELEPHONE NUMBER: DECLARATION RFQ NO.: DATE: 00/00 3/16/00 MIAMI BEACH REDEVELOPMENT AGENCY 23 TO: Lawrence A. Levy Executive Director Miami Beach Redevelopment Agency Submitted this day of ,2000. The undersigned, as proposer, declares that the only persons interested in this proposal are named herein; that no other person has any interest in this proposal or in the Contract to which this proposal pertains; that this proposal is made without connection or arrangement with any other person; and that this proposal is in every respect fair and made in good faith, without collusion or fraud. The proposer agrees if this proposal is accepted, to execute an appropriate Miami Beach Redevelopment Agency document for the purpose of establishing a formal contractual relationship between the proposer and the Miami Beach Redevelopment Agency, Florida, for the performance of all requirements to which the proposal pertains. The proposer states that the proposal is based upon the documents identified by the following number: RFQ No. 69-99/00 SIGNATURE PRINTED NAME TITLE (IF CORPORATION) RFQ NO: DATE: 00100 3/16100 MIAMI BEACH REDEVELOPMENT AGENCY 24 OUESTIONNAIRE Proposer's Name: Principal Office Address: Official Representative: Individual Partnership (Circle One) Corporation If a Corporation. answer this: When Incorporated: In what State: If Forei2n Corporation: Date of Registration with Florida Secretary of State: Name of Resident Agent: Address of Resident Agent: President's Name: Vice-President's Name: Treasurer's Name: Members of Board of Directors: RFQ NO.: DATE: 00/00 3/16/00 MIAMI BEACH REDEVELOPMENT AGENCY 25 Ouestionnaire (continued) If a Partnership: Date of organization: General or Limited Partnership"': Name and Address of Each Partner: NAME ADDRESS '" Designate general partners in a Limited Partnership I. N umber of years of relevant experience in operating similar business: 2. Have any similar agreements held by proposer for a project similar to the proposed project ever been canceled? Yes ( ) No ( ) If yes, give details on a separate sheet. 3. Has the proposer or any principals of the applicant organization failed to qualify as a responsible bidder, refused to enter into a contract after an award has been made, failed to complete a contract during the past five (5) years, or been declared to be in default in any contract in the last 5 years? If yes, please explain: RFQ NO.: DATE: 00/00 3/16/00 MIAMI BEACH REDEVELOPMENT AGENCY 26 Ouestionnaire (continued) 4. Has the proposer or any of its principals ever been declared bankrupt or reorganized under Chapter 11 or put into receivership? If yes, give date, court jurisdiction, action taken, and any other explanation deemed necessary . 5. Person or persons interested in this bid and Qualification Form (have) (have not) been convicted by a Federal, State, County, or Municipal Court of any violation of law, other than traffic violations. To include stockholders over ten percent (10%). (Strike out inappropriate words) Explain any convictions: 6. Lawsuits (any) pending or completed involving the corporation, partnership or individuals with more than ten percent (10%) interest: A. List all pending lawsuits: B. List all judgments from lawsuits in the last five (5) years: C. List any criminal violations and/or convictions of the proposer and/or any of its principals: 7. Conflicts of Interest. The following relationships are the only potential, actual, or perceived conflicts of interest in connection with this proposal: (If none, so state.) RFQ NO.: DATE: 00/00 3/16/00 MIAMI BEACH REDEVELOPMENT AGENCY 27 Ouestionnaire (continued) 8. Public Disclosure. In order to determine whether the members of the Evaluation Committee for this Request for Proposals have any association or relationships which would constitute a conflict of interest, either actual or perceived, with any proposer and/or individuals and entities comprising or representing such proposer, and in an attempt to ensure full and complete disclosure regarding this contract, all Proposers are required to disclose all persons and entities who may be involved with this Proposal. This list shall include public relation firms, lawyers and lobbvists. The Procurement Division shall be notified in writing if anv person or entity is added to this list after receipt of proposals. RFQ NO.: DATE: 00/00 3/16/00 MIAMI BEACH REDEVELOPMENT AGENCY 28 Ouestionnaire (continued) The proposer understands that information contained in this Questionnaire will be relied upon by the RDA in awarding the proposed Agreement and such information is warranted by the proposer to be true. The undersigned proposer agrees to furnish such additional information, prior to acceptance of any proposal relating to the qualifications of the proposer, as may be required by the Executive Director. The proposer further understands that the information contained in this questionnaire may be confirmed through a background investigation conducted by the Miami Beach Police Department. By submitting this questionnaire the proposer agrees to cooperate with this investigation, including but not necessarily limited to fingerprinting and providing information for credit check. WITNESSES: IF INDIVIDUAL: Signature Signature Print Name Print Name WITNESSES: IF PARTNERSHIP: Signature Print Name of Firm Print Name Address By: Signature (General Partner) (Print Name) (Print Name) WITNESSES: IF CORPORATION: Signature Print Name of Corporation Print Name Address By: President Attest: (CORPORATE SEAL) Secretary RFQ NO.: DATE: 00100 3/16/00 MIAMI BEACH REDEVELOPMENT AGENCY 29 DIVISION 3. LOBBYISTS Sec. 2-481. Definitions. The following words, terms and phrases, when used in this division, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: Advisory personnel means the members of those city boards and agencies whose sole or pnmary responsibility is to recommend legislation or give advice to the RDA Board. Autonomous personnel includes but is not limited to the members of the housing authority, personnel board, pension boards, and such other autonomous or semi-autonomous authorities, boards and agencies as are entrusted with the day-to-day policy setting, operation and management of certain defined functions or areas of responsibility. The RDA Board means the Chairman and Members of the RDA Board. Departmental personnel means the Executive Director, all assistant directors, all department heads, the city attorney, chief deputy city attorney and all assistant city attorneys; however, all departmental personnel when acting in connection with administrative hearings shall not be included for purposes of this division. Lobbyist means all persons employed or retained, whether paid or not, by a principal who seeks to encourage the passage, defeat or modification of any ordinance, resolution, action or decision of any commissioner; any action, decision, recommendation of any city board or committee; or any action, decision or recommendation of any personnel defined in any manner in this section, during the time period of the entire decision-making process on such action, decision or recommendation that foreseeably will be heard or reviewed by the RDA Board, or a city board or committee. The term specifically includes the principal as well as any agent, attorney, officer or employee of a principal, regardless of whether such lobbying activities fall within the normal scope of employment of such agent, attorney, officer or employee. Quasi-judicial personnel means the members of the planning board, the board of adjustment and such other boards and agencies of the city that perform such quasi-judicial functions. The nuisance abatement board, special master hearings and administrative hearings shall not be included for purposes of this division. (Ord. No. 92-2777, ~~ 1, 2, 3-4-92; Ord. No. 92-2785, ~~ 1, 2, 6-17-92) Cross reference(s)--Definitions generally, ~ 1-2. Sec. 2-482. Registration. (a) All lobbyists shall, before engaging in any lobbying activities, register with the city clerk. Every person required to register shall register on forms prepared by the clerk, pay a registration fee as specified in appendix A and state under oath: (1) His name; (2) His business address; (3) The name and business address of each person or entity which has employed the registrant to lobby; (4) The commissioner or personnel sought to be lobbied; and (5) The specific issue on which he has been employed to lobby. RFQ NO.: DATE: 00/00 3/16/00 MIAMI BEACH REDEVELOPMENT AGENCY 30 (b) Any change to any information originally filed, or any additional RDA Board Members or personnel who are also sought to be lobbied shall require that the lobbyist file an amendment to the registration forms, although no additional fee shall be required for such amendment. The lobbyist has a continuing duty to supply information and amend the forms filed throughout the period for which the lobbying occurs. (c) If the lobbYIst represents a corporation, partnership or trust, the chief officer, partner or beneficiary shall also be identified. Without limiting the foregoing, the lobbyist shall also identify all persons holding, directly or indirectly, a five percent or more ownership interest in such corporation, partnership, or trust. (d) Separate registration shall be required for each principal represented on each specific issue. Such issue shall be described with as much detail as is practical, including but not limited to a specific description where applicable of a pending request for a proposal, invitation to bid, or public hearing number. The city clerk shall reject any registration statement not providing a description of the specific issue on which such lobbyist has been employed to lobby. ( e) Each person who withdraws as a lobbyist for a particular client shall file an appropriate notice of withdrawal. (f) In addition to the registration fee required in subsection (a) of this section, registration of all lobbyists shall be required prior to October 1 of every even-numbered year; and the fee for biennial registration shall be as specified in appendix A. (g) In addition to the matters addressed above, every registrant shall be required to state the extent of any business, financial, familial or professional relationship, or other relationship giving rise to an appearance of an impropriety, with any current RDA Board Member or personnel who is sought to be lobbied as identified on the lobbyist registration form filed. (h) The registration fees required by subsections (a) and (f) of this section shall be deposited by the clerk into a separate account and shall be expended only to cover the costs incurred in administering the provisions of this division. There shall be no fee required for filing a notice of withdrawal, and the Executive Director shall waive the registration fee upon a finding of financial hardship, based upon a sworn statement of the applicant. Any person who only appears as a representative of a nonprofit corporation or entity (such as a charitable organization, a neighborhood or homeowner association, a local chamber of commerce or a trade association or trade union), without special compensation or reimbursement for the appearance, whether direct, indirect or contingent, to express support of or opposition to any item, shall not be required to register with the clerk as required by this section. Copies of registration forms shall be furnished to each commissioner or other personnel named on the forms. (Ord. No. 92-2777, S 3, 3-4-92; Ord. No. 92-2785, S 3, 6-17-92) Sec. 2-483. (a) (b) RFQ NO: DATE: Exceptions to registration. Any public officer, employee or appointee or any person or entity in contractual privity with the city and/or the RDA who only appears in his official capacity shall not be required to register as a lobbyist. Any person who only appears in his individual capacity at a public hearing before the city commission, the RDA Board, the planning board, board of adjustment, or other board or committee and has no other communication with the personnel defined in section 2-481, for the purpose of self-representation without compensation or reimbursement, whether direct, indirect or contingent, to express support of or opposition to any item, shall not be required to register as a lobbyist, including but not limited to those who are members of homeowner 00/00 3/16/00 MIAMI BEACH REDEVELOPMENT AGENCY 31 or neighborhood associations. All speakers shall, however, sign up on forms available at the public hearing. Additionally, any person requested to appear before any city personnel, board or commission, or any person compelled to answer for or appealing a code violation, a nuisance abatement board hearing, a special master hearing or an administrative hearing shall not be required to register, nor shall any agent, attorney, officer or employee of such person. (Ord. No. 92-2777, SS 4, 5, 3-4-92; Ord. No. 92-2785, SS 4, 5, 6-17-92) Sec. 2-484. Sign-in logs. In addition to the registration requirements addressed above, all city departments, including the offices of the Chairman and RDA Board, the offices of the Executive Director, and the offices of the city attorney, shall maintain signed sign-in logs fOt all non-city employees or personnel for registration when they meet with any personnel as defined in section 2-481. (Ord. No. 92-2785, S 6, 6-17-92) Sec. 2-485. (a) (b) (c) (d) List of expenditures. On October 1 of each year, lobbyists shall submit to the city clerk a signed statement under oath listing all lobbying expenditures in the city for the preceding calendar year. A statement shall be filed even if there have been no expenditures during the reporting period. The city clerk shall publish logs on a quarterly and annual basis reflecting the lobbyist registrations filed. All logs required by this section shall be prepared in a manner substantially similar to the logs prepared for the state legislature pursuant to F. S. S 11.0045. All members of the RDA Board and all city personnel shall be diligent to ascertain whether persons required to register pursuant to this section have complied with the requirements of this division. Commissioners or city personnel may not knowingly permit themselves to be lobbied by a person who is not registered pursuant to this section to lobby the commissioner or the relevant committee, board or city personnel. The city attorney shall investigate any persons engaged in lobbying activities who are reported to be in violation of this division. The city attorney shall report the results of the investigation to the RDA Board. Any alleged violator shall also receive the results of any investigation and shall have the opportunity to rebut the findings, if necessary, and submit any written material in defense to the RDA Board. The RDA Board may reprimand, censure, suspend or prohibit such person from lobbying before the commission or any committee, board or personnel of the city. (Ord. No. 92-2777, S 6, 3-4-92; Ord. No. 92-2785, S 7, 6-17-92) RFQ NO.: DATE: 00/00 3/16/00 MIAMI BEACH REDEVELOPMENT AGENCY 32 DIVISION 4. PROCUREMENT Sec. 2-486. Cone of silence. (a) Contracts for the provision of goods and services other than audit contracts. (1) Definition. "Cone of silence" is hereby defined to mean a prohibition on: (a) any communication regarding a particular request for proposal ("RFQ"), request for qualifications ("RFQ"), request for letters of interest ("RFLI"), or bid between a potential vendor, service provider, bidder, lobbyist, or consultant and the city's professional staff including, but not limited to, the city manager and his or her staff; and (b) any communication regarding a particular RFP, RFQ, RFLI, or bid between the Chairman, RDA Board Members, or their respective staffs, and any member of the city's professional staff including, but not limited to, the city manager and his or her staff. Notwithstanding the foregoing, the cone of silence shall not apply to competitive processes for the award of CDBG, HOME, SHIP and Surtax Funds administered by the city office of community development, and communications with the city attorney and his or her staff. (2) Procedure. a. A cone of silence shall be imposed upon each RFP, RFQ, RFLI, and bid after the advertisement of said RFP, RFQ, RFLI, or bid. At the time of imposition of the cone of silence, the city manager or his or her designee shall provide for public notice of the cone of silence. The city manager shall include in any public solicitation for goods and services a statement disclosing the requirements of this division. b. The cone of silence shall terminate a) at the time the city manager makes his or her written recommendation as to selection of a particular RFP, RFQ, RFLI, or bid to the RDA Board; provided, however, that if the RDA Board refers the manager's recommendation back to the city manager or staff for further review, the cone of silence shall be reimposed until such time as the manager makes a subsequent written recommendation, or b) in the event of contracts for less than $10,000.00, when the city manager executes the contract. (3) Exceptions. The provisions of this ordinance shall not apply to oral communications at pre-bid conferences, oral presentations before evaluation committees, contract discussions during any duly noticed public meeting, public presentations made to the RDA Boarders during any duly noticed public meeting, contract negotiations with city staff following the award of an RFP, RFQ, RFLI, or bid by the RDA Board, or communications in writing at any time with any city employee, official or member of the RDA Board, unless specifically prohibited by the applicable RFP, RFQ, RFLI, or bid documents. The bidder or proposer shall file a copy of any written communications with the city clerk. The city clerk shall make copies available to any person upon request. (b) Audit contracts. (1) "Cone of sil;;:nce" is hereby defined to mean a prohibition on: (a) any communications regarding a particular RFP, RFQ, RFLI, or bid between a potential vendor, service provider, bidder, lobbyist, or consultant and the Chairman and RDA Board Members or their respective staffs, and any member of the city's professional staff including, but not limited to the city manager and his or her staff, and (b) any oral communication regarding a particular RFP, RFQ, RFLI, or bid between the Chairman, RDA Board Members or their RFQ NO DATE: 00/00 3/16/00 MIAMI BEACH REDEVELOPMENT AGENCY 33 respective staffs and any member of the city's professional staff including, but not limited to, the city manager and his or her staff. Notwithstanding the foregoing, the cone of silence shall not apply to communications with the city attorney and his or her staff. (2) Except as provided in subsections (b )(3) and (b)( 4) hereof, a cone of silence shall be imposed upon each RFP, RFQ, RFLI, or bid for audit services after the advertisement of said RFP, RFQ, RFLI, or bid. At the time of the imposition of the cone of silence, the city manager or his or her designee shall provide for the public notice of the cone of silence. The cone of silence shall terminate a) at the time the city manager makes his or her written recommendation as to the selection of a particular RFP, RFQ, RFLI, or bid to the RDA Board; provided, however, that if the RDA Board refers the manager's recommendation back to the city manager or staff for further review, the cone of silence shall be reimposed until such time as the manager makes a subsequent written recommendation, or b) or in the event of contracts for less than $10,000.00, when the city manager executes the contract. (3) Nothing contained herein shall prohibit any bidder or proposer: (i) from making public presentations at duly noticed pre-bid conferences or before duly noticed evaluation committee meetings; (ii) from engaging in contract discussions during any duly noticed public meeting; (iii) from engaging in contract negotiations with city staff following the award of an RFP, RFQ, RFLI, or bid for audit by the RDA Board; or (iv) from communicating in writing with any city employee or official for purposes of seeking clarification or additional information from the city or responding to the city's request for clarification or additional information, subject to the provisions of the applicable RFP, RFQ, RFLI, or bid documents. The bidder or proposer shall file a copy of any written communication with the city clerk. The city clerk shall make copies available to the general public upon request. (4) Nothing contained herein shall prohibit any lobbyist, bidder, proposer, or other person or entity from publicly addressing the RDA Board Members during any duly noticed public meeting regarding action on any audit contract. The Executive Director shall include in any public solicitation for auditing services a statement disclosing the requirements of this division. (c) Violations/penalties and procedures. An alleged violation of this section by a particular bidder or proposer shall subject said bidder or proposer to the same procedures set forth in section 2-457, shall render any RFP award, RFQ award, RFLI award, or bid award to said bidder or proposer void, and said bidder or propuser shall not be considered for any , RFQ, RFLI or bid for a contract for the provision of goods or services for a period of one year. Any person who violates a provision of this division shall be prohibited from serving on a city or RDA evaluation committee. In addition to any other penalty provided by law, violation of any provision of this division by a city or RDA employee shall subject said employee to disciplinary action up to and including dismissal. Additionally, any person who has personal knowledge of a violation of this division shall report such violation to the state attorney and/or may file a complaint with the county ethics commission. (Ord. No. 99-3164, 9 1, 1-6-99) RFQ NO.: DATE: 00100 3116/00 MIAMI BEACH REDEVELOPMENT AGENCY 34 Miami Beach Redevelopment Agency 1700 Convention Center Drive Miami Beach, Florida 33139 Telephone: (305) 673-7193 Fax: (305) 673-7772 REDEVELOPMENT AGENCY MEMORANDUM NO. 00- 1'/ March 15,2000 TO: Chairman and Members of the Miami Beach Redevelopment Agency FROM: Lawrence A. Levy ~ Executive Director SUBJECT: A RESOLUTION OF THE CHAIRMAN AND MEMBERS OF THE MIAMI BEACH REDEVELOPMENT AGENCY, AUTHORIZING THE ADMINISTRATION TO ISSUE A REQUEST FOR QUALIFICATIONS FOR THE LEASING AND MANAGEMENT OF THE RETAIL COMPONENT OF THE ANCHOR SHOPS AND PARKING GARAGE. ADMINISTRATION RECOMMENDATION Adopt the Resolution ANALYSIS At the Redevelopment Agency (RDA) Board meeting on November 17, 1999, the RDA Board authorized the Administration to enter into a Settlement Agreement between the Redevelopment Agency and Loews Hotel Corporation, providing for a $140,000 reduction in the Developer's Fee, payable to Loews in accordance with the Anchor Garage Development Agreement, in exchange for terminating Loews' obligations under the Retail Space Master Lease Agreement. With the reversion of the Master Lease Agreement, the RDA Board deems it is in the best interest of the RDA to engage a property management firm (Property Manager), to procure and negotiate new leases, manage existing leases and provide certain maintenance and repairs, as called for in the Lease Agreements with the tenants and the Garage Easement Agreement between the RDA and MB Redevelopment, Inc. Since the Administration does not have the resources in-house to effectively undertake these responsibilities, the Property Manager will be expected to undertake the following scope of services on behalf of the RDA: V' Procure and negotiate leases for current available space as well as for space which becomes available upon expiration and/or termination of exiting leases, V' Collect and remit lease revenues, S()UTIl V()I~~ l?edevelvpment Ulstr1c:t Agenda Item 3 ~ l?edfbate 3 -15 - DD VProvide a means of communication for retail tenants to address and/or resolve matters pertaining to their respective leases, maintenance/repair concerns, etc., v' Provide a timely response to tenant issues and concerns, v' Conduct periodic on-site inspections to ensure that tenant spaces and common area spaces are maintained to a standard consistent with a first class retail center. VMaintain a system of accounting, bookkeeping and reporting that will accurately reflect all income received and disbursements made in connection with the operation and maintenance of the Anchor Shops. The RDA has been and will remain responsible for all impositions relating to the leasing and common area maintenance of the Anchor Shops on a pass-through basis, including without limitation reasonable attorneys' fees and other costs incurred in connection with procuring and negotiating leases or disputes concerning leases, as well as maintaining and repairing certain portions of the retail and common areas as defined in the individual Lease Agreements with the tenants and the Garage Easement Agreement between the RDA and MB Redevelopment, Inc., (MBRI). Under the terms of the Master Lease Agreement between the RDA and MBRI, MBRI was to remit 95 percent of the gross lease revenues to the RDA and retain 5 percent as a fee for managing the retail space. In the case of the Property Manager, the Administration is recommending a similar form of compensation, with the exception that the Property Manager will collect and remit 100 percent ofthe lease revenues to the RDA. In return for services provided by the Property Manager, the RDA shall pay the Property Manager a percentage of lease revenues collected (Management Fee), the amount of which is to be identified as part of the selection criteria by the firms responding to this RFQ. The proposed fee structure and the level of corresponding services provided will rank highly in the selection of the Property Manager. In order to maximize the number of responses to the RFQ, the Administration is preparing a mailing list using a combination of resources, including the Miami Beach Chamber of Commerce directory, the Board of Realtors and in-house contacts. It is anticipated that proposals will be due during the second week in April, and that following a ranking of the proposals by a selection committee, a recommendation will be brought before the RDA Board at the first meeting in May, 2000. To this end, it is recommended that the Redevelopment Agency Board authorize the Administration to finalize and issue a Request for Qualifications for the leasing and management of the retail component of the Anchor Shops and Parking Garage. LALlC~/ef T:IAGENDA 12000lMAR 1500lRDA IANCHRFP.MEM