HomeMy WebLinkAboutR-2011-139 - Authorized the Termination of Development Agreement with Downtown Dania Beach Development, LLC RESOLUTION NO. 2011-139
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DANIA
BEACH, FLORIDA, AUTHORIZING THE CITY MANAGER TO
TERMINATE THE DEVELOPMENT AGREEMENT WITH DOWNTOWN
DANIA BEACH DEVELOPMENT, LLC; PROVIDING FOR CONFLICTS;
FURTHER, PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, on November 24, 2009, the Dania Beach Community Redevelopment
Agency ("CRA") and the City of Dania Beach, Florida ("City") entered into a Development
Agreement with Downtown Dania Beach Development, LLC ("Downtown") for the
development of its City Center Project(the "Project"); and
WHEREAS, the CRA has determined that it would be in its best interest to terminate the
Development Agreement without cause with a minimum of fifteen days prior written notice to
Downtown, consistent with its terms, a copy of which is attached as Exhibit"A"; and
WHEREAS, the City Commission finds that termination of the Development Agreement
is in the City's best interest;
NOW THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF DANIA BEACH, FLORIDA:
Section 1. The above recitals are true and correct and incorporated into this
Resolution by this reference.
Section 2. Termination of the Development Agreement for the development of the
Project between the CRA, the City and Downtown with a minimum of seven days prior written
notice, consistent with the terms and conditions of the Development Agreement, is approved.
Section 3. The City Manager is authorized to execute the Notice of Termination on
behalf of the City and to execute any required agreements or documents, to terminate the
Development Agreement, subject to the approvals as to form and legality by the City Attorney.
Section 4. That all resolutions or parts of resolutions in conflict with this Resolution
are repealed to the extent of such conflict.
Section 5. That this Resolution shall be in force and take effect immediately upon its
passage and adoption.
PASSED AND ADOPTED on November 8, 2011.
ATTEST:
A
LOUISE STILSON, CMC PATRICIA A. FLURY
CITY CLERK MAYOR
APPROVED AS TO FORM CO CTNESS: o`�NO S F�Rsrc�
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THOMAS J. ANSB
CITY ATTORNEY
2 RESOLUTION#2011-139
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (this "Agreement") is made and entered into
as of the 4 day of All
� r 2009 by and among the DANIA BEACH COMMUNITY
REDEVELOPMENT AGENCY, a public body corporate and politic created pursuant to Part
III of Chapter 163, Florida Statutes, having an address at 100 West Dania Beach Boulevard,
Dania Beach , Florida 33004 (the "CRA"), the CITY OF DANIA BEACH, FLORIDA, a
Florida municipal corporation, having an address at 100 West Dania Beach Boulevard, Dania
Beach , Florida 33004 (the "City"), and DOWNTOWN DANIA BEACH DEVELOPMENT,
LLC, a Florida limited liability company, having an address at 3001 W. Hallandale Beach
Boulevard, Hallandale Beach, Florida 33009 ("Developer").
RECITALS
1. The City is the owner of certain real property consisting of approximately 4.4
acres located in Dania Beach, Florida, as more particularly described in Exhibit "1" attached to
this Agreement(the "City Property").
2. The City, the CRA and Developer desire to enter into this Agreement in
connection with the parties desire that Developer design and build a parking garage on a portion
of the City Property, in conjunction with plans to subsequently develop an office building on a
portion of the City Property to be leased to Developer, and a hotel and entry roadway on other
surrounding real property currently owned by Developer.
3. The City desires to lease to Developer that portion of the City Property
consisting of approximately .60 acres as more particularly described in Exhibit "2" attached to
this Agreement (the "Phase 1 Leased Property") for the Developer to design and construct an
office building.
4. The CRA desires to engage Developer, and Developer agrees to design and
build the buildings and features set forth below, all subject to the terms and conditions set forth
herein.
NOW, THEREFORE, for and in consideration of the mutual covenants and agreements
set forth herein, and other good and valuable consideration,the receipt and sufficiency of which is
acknowledged, the parties to this Agreement, intending to be legally bound, do covenant and
agree as follows:
1. DEVELOPMENT SUMMARY.
The following summary (the "Development Summary") provides the pertinent facts and
certain general terms with regard to the design and construction of a joint public/private
parking garage, and the intended future construction of an office building, a hotel, and an entry
roadway, which are the subject of this Agreement. Capitalized terms not defined in the text
shall have the meanings ascribed to them in Article 2 of this Agreement.
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1.1 Proiect Description. The "Project" consists of the design and construction of a
joint public/private parking Garage (as further defined in Section 1.6 below) on a portion of the
City Property. As stated in the Development Summary, in the future it is intended that the
Developer will design and construct an office building located on the Phase 1 Leased Property,
and a hotel, or other facility approved by the CRA, and an entry roadway on surrounding real
property owned currently by Developer.
1.2 Proiect Representatives. For purposes of this Project, the following shall serve
as the Project Representative for each party:
CRA {NAME) Phone {PHONE}
No:
Developer Hank Thomas Phone 561-400-8578
No:
1.3 Services. The Developer shall complete the design and construction of the
Project in accordance with the terms and conditions of the Contract Documents. The parties
acknowledge and agree that nothing in this Agreement shall be construed as to provide, grant, or
confer any rights unto Developer and its Subconsultants and Subcontractors with respect to the
provision of any other services (whether design, construction or otherwise) in connection with the
Project,except for Work expressly set forth in the Contract Documents.
1.4 Schedule for Performance. The Developer shall achieve Substantial
Completion (as defined in Section 6.4) for the Project by September 24, 2010 (the "Contract
Times"); provided, however, that Developer shall perform the design phase of the Work in
accordance with the Contract Times as well as the schedule of performance set forth in Section
4.2. Pursuant to Section 6.6 of this Agreement, if the Developer shall neglect, fail, or refuse to
complete the Work by the Substantial Completion Date and the Final Completion Date, subject
to any proper extension granted by the CRA, then the Developer shall pay to the CRA, or to
cause the Developer's surety to pay to the CRA, Liquidated Damages in the amount of(a) Two
Thousand and 00/100 Dollars ($2,000.00) per diem commencing upon the first day following
expiration of the Substantial Completion Date and continuing until the actual date of Substantial
Completion, and (b) Five Hundred and 00/100 Dollars ($500.00) per diem commencing upon the
first day following expiration of the Final Completion Date and continuing until the actual date of
Final Completion.
1.5 Compensation. It is the intent and agreement of the parties that the CRA shall
pay the Developer for Developer's performance of its obligations under this Agreement a
guaranteed maximum price not to exceed Six Million and 00/100 Dollars ($6,000,000.00) (the
"GMP"). The GMP shall include the Contract Sum for the Design Services and the
Construction Work for the Garage (as defined in Section 1.6 below). The Contract Sum shall
consist of the Cost of the Work (defined below) for the Design Services and the Construction
Work, as applicable. Payment by the CRA of the GMP for the Design Services and the
Construction Work shall be deemed full compensation to the Developer for the performance of
this Agreement. In the event additional labor, costs or expenses are necessary to complete the
Design Services or the Construction Work, as applicable, such amounts shall be the sole
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responsibility of Developer; it being acknowledged and agreed that the GMP for the Design
Services and Construction Work shall be the maximum amount the CRA shall be required to
pay for the Design Services and Construction Work, respectively. Following the completion of
the Design Services and the Construction Work, should the GMP exceed the Contract Sum, the
difference, if any, between the Contract Sum and the GMP for the Design Services and
Construction Work, respectively, shall be defined as "Cost Savings." As additional
consideration to Developer and an incentive to complete the Project for less than the GMP, the
parties agree to allocate any Cost Savings on the basis of fifty percent (50%) to Developer and
fifty percent (50%) to the CRA. The CRA shall pay Developer its share of Cost Savings at the
time of Final Payment for Design Services and Construction Work, as applicable.
Notwithstanding the foregoing, Developer shall not be entitled to, or receive, any payments for
Cost Savings for Design Services or Construction Work if Developer fails to meet the Contract
Times for that portion of the Work it being understood and agreed that time is of the essence
with respect to Contract Times.
1.6 Garage. The Work for the Project shall include, without limitation, the design
and construction of a joint public/private use parking garage (the "Garage"). The Garage shall
be constructed upon the real property described in the attached Exhibit "3" (the "Garage
Property"). The Garage shall consist of approximately four hundred thirty seven (437) parking
spaces (with the understanding that this number may vary by up to 20 spaces). Construction of
the Garage on the Garage Property shall be substantially in conformance with the Garage Plans
more specifically described in Exhibit "4" attached to this Agreement and made a part of this
Agreement (the "Garage Plans"). Payment for the design and construction of the Garage shall
be made in accordance with Sections 1.5 and Section 8 of this Agreement.
1.7 Hotel. Notwithstanding any other provision of this Agreement, Developer
intends to construct a hotel with no less than 130 rooms upon certain property located adjacent
to the Entry Roadway Property and as more particularly described on the attached Exhibit "5"
(the "Hotel Property"). In the event Developer is unable to build a hotel, the parties shall
endeavor to find an alternate, mutually acceptable use at no additional cost to CRA. Any such
substitute use shall be considered a part of the "Project" as defined in this Agreement.
Additionally, notwithstanding any other provision of this Agreement, if Developer fails to
construct a hotel pursuant to this Agreement, or such other use as may be approved by the CRA
in its sole discretion, Developer shall not be permitted to claim any of the parking spaces
located in Garage towards its parking requirements with respect to the Hotel Property and CRA
shall not be required to make the Completion Payment in accordance with this Agreement.
1.8 Ground Lease of Phase 1 Leased Property; Office Building. Prior to
commencement of construction by Developer, City agrees to enter into a ground lease of the
Phase 1 Leased Property to Developer (the "Ground Lease"). Rental under the Ground Lease
shall be One Dollar ($1.00) per year for a term of forty-nine (49) years and shall include three
(3) ten(10) year renewal options. The Ground Lease shall be substantially in the form attached
to this Agreement as Exhibit"6"and may be terminated by the City in the event construction of
the office building has not been completed by January 1, 2013. Developer shall be permitted to
use parking spaces in the Garage towards its parking requirements for the office building in the
amounts set forth in Exhibit "7" (the "Parking Schedule"). Notwithstanding anything to the
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contrary contained herein, any further construction undertaken by the Developer on the Phase 1
Leased Property or any other property shall not entitle Developer to use of any additional
parking spaces beyond those provided in the Parking Schedule. The design and construction of
an office building on the Phase 1 Leased Property shall be at the sole cost and expense of
Developer and shall be completed in accordance with this Section 1.8.
1.9 Entry Roadway. Developer agrees to acquire the real property described on
Exhibit "8" attached to this Agreement (the "Entry Roadway Property"). The design and
construction of the roadway entrance feature described in the attached Exhibit "9" entry
roadway plans (the "Entry Roadway Plans") shall be at the sole cost and expense of Developer
and shall be completed by January 1, 2015. Upon completion of the development of the Entry
Roadway Property, Developer shall convey the Entry Roadway Property to City free and clear
of all liens and encumbrances.
1.10 Completion Payment. In addition to the payments described in Sections 1.5
and Section 8 of this Agreement, beginning on December 31 of the year following the year
during which the certificate of occupancy for the hotel or other CRA approved structure
constructed on the Hotel Property is issued,the CRA shall pay to Developer an annual payment
of fifty thousand dollars ($50,000.00) for six (6) years (the "Completion Payment"). CRA may
pay the Completion Payment early in its sole discretion.
1.11 Further Development. As stated in the Development Summary, in the future it
is intended that the Developer will design and construct an office building located on the Phase
1 Leased Property, and a hotel, or other facility approved by the CRA, and an entry roadway on
surrounding real property owned currently by Developer. Likewise, it is intended that
Developer will design and construct on property currently owned by the City, a mixed use
office and retail development. Unless otherwise stated in this Agreement, the future
development contemplated in this Agreement shall be contingent upon the Developer obtaining
financing for redevelopment, design and construction of the City Hall, the completion of the re-
plat of the City Property by the City where the current City Hall is located, and a final
negotiated lease being entered into by and between the City and the Developer for that portion
of the City Property where the current City Hall is located allowing for the future mixed use
development.
1.12 Right of Way Improvements. Further right of way improvements, including,
but not limited to, a roundabout located on the City Property may be added to the Project b
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Change Order, as provided under the terms and conditions of this Agreement. It is intended
that any expense associated with the construction of these improvements would be subject to an
equitable distribution of the costs between the Developer and the CRA.
2. DEFINITIONS.
For the purposes of this Agreement, the following terms are defined as:
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2.1 "Addenda" and "Amendment" means a written modification to this Agreement
or the Contract Documents executed by the Developer and CRA covering changes, additions,
or reductions in the terms of this Agreement.
2.2 "Agreed Cost" is defined in Section 7.2.
2.3 "Approved 65% Construction Documents" is defined in Section 4.3.3.
2.4 "Approved 100% Construction Documents" is defined in Section 4.3.3.
2.5 "Bonds" is defined in Section 12.1.
2.6 "Building Division"means the City of Dania Beach Building Division.
2.7 "Change Order" is defined in Section 7.1
2.8 "Change Order Request" is defined in Section 7.2.
2.9 "City" is the City of Dania Beach, Florida, unless otherwise stated herein all
submissions and approvals shall be made to and by the City Manager or his or her designee.
2.10 "City Property"is defined in the first recital of this Agreement.
2.11 "CRA" is the Dania Beach Community Redevelopment Agency, unless
otherwise stated herein all submissions and approvals shall be made to and by the Executive
Director of the CRA.
2.12 "CRA's Representative" is defined in Section 30.1.
2.13 "Completion Payment" is defined in Section 1.10.
2.14 "Contract Documents" means this Agreement, the Plans and Specifications and
all related or contemplated exhibits and documents, as well as all related Addenda and
Amendments with respect to the Project and all changes to the documents issued by CRA after
execution of this Agreement.
2.15 "Contract Sum" means the Cost of the Work including all Design Services and
Construction Work.
2.16 "Contract Times"is defined in Section 1.4.
2.17 "Construction Documents" is defined in Section 4.1.1.
2.18 "Construction Work" means the construction of the Project required of the
Developer under the terms of this Agreement and the Contract Documents.
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2.19 "Cost of the Work" is defined in Sections 8.11 and 8.12.
2.20 Cost Savings is defined in Section 1.5.
2.21 "County"means Broward County.
2.22 "Date of Termination" is defined in Section 37.1.
2.23 "Day" or"Days"or"day" or"days"means calendar days.
2.24 "Developer" means Downtown Dania Beach Development, LLC, a Florida
limited liability company.
2.25 "Design Consultant" means the design professional selected by CRA to act as
Cit s owner's representative
ive and interact with the Developer.
2.26 "Development Summary"is defined in Article 1.
2.27 "Developer's Estimate" is defined in Section 7.2.
2.28 "Developer's Stock" is defined in Section 8.11.4.
2.29 "Developer's Representative" is defined in Section 30.2.
2.30 "Design Services" are all design services performed by and required of the
Developer pursuant to this Agreement and includes services performed by the Developer's
Subconsultants.
2.31 "Direct Owner's Purchase Program" is defined in Section 3.15.
2.32 "Entry Roadway Property" is defined in Section 1.9.
2.33 "Environmental Claims" is defined in Section 19.1.
2.34 "Environmental Laws" is defined in Section 19.4.
2.35 "Field Office" means a field office or construction office to direct operations at
the Garage Property located at the Garage Property and provided by the Developer. Expenses
relating to the Field Office are included in the GMP for the Construction Work.
2.36 "Final Completion"means that all Work required under the Contract Documents
has been fully and properly completed, including punch list items, issuance of certificates of
final occupancy or use, delivery of record drawings, electronic files, and manuals, and
performance of all required training.
2.37 "Final Completion Date" is defined in Section 6.4.
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2.38 "Final Payment" is defined in Section 8.6.
2.39 "Final Request" is defined in Section 8.6.
2.40 "Garage Plans" is defined in Section 1.6.
2.41 "Garage Property" is defined in Section 1.6.
2.42 "GMP" or"Guaranteed Maximum Price" is defined in Section 1.5.
2.43 "Hazardous Substance" is defined in Section 19.4.
2.44 "Hotel Property" is defined in Section 1.7.
2.45 "Liquidated Damages" is defined in Section 6.6.
2.46 "Materials" means materials, supplies, apparatus, appliances, equipment,
fixtures, machinery, tools and all other items furnished or delivered in connection with the
Proj ect.
2.47 "Phase 1 Leased Property" is defined in Section 1.8.
2.48 "Plans and Specifications" is defined in Section 4.1.1.
2.49 "Progress Schedule" is defined in Section 3.7.
2.50 "Project"means the design and construction, in accordance with this Agreement
and the Contract Documents, of the parking Garage as defined in Section 1.6.
2.51 "Schedule of Values" is defined in Section 8.2.
2.52 "Statutory Changes is defined in Section 1.5.
2.53 "Subconsultant" means any person or entity, other than Developer's own
employees, employed or retained by, or under contract with Developer to perform a portion of
the Design Services under this Agreement.
2.54 "Subconsultant Contract" means any contract in writing between the Developer
and a Subconsultant.
2.55 "Subcontractor" means any person or entity, other than the Developer's own
employees, employed or retained by, or under contract with the Developer to perform the non-
design portion of the Work.
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2.56 "Subcontractor Contract" means any contract in writing between the Developer
and a Subcontractor.
2.57 "Substantial Completion" is defined in Section 6.4.
2.58 "Substantial Completion Date" is defined in Section 6.1.
2.59 "Work" means the Design Services and Construction Work of the Project
required of the Developer under the terms of this Agreement and the Contract Documents.
3. GENERAL RESPONSIBILITIES.
3.1 The Developer agrees that all design documents prepared or furnished,
including, without limitation, the Plans and Specifications, shall comply with all applicable
laws, statutes, codes, rules and regulations including, without limitation, those adopted by the
City, all Environmental Laws as defined in Section 19.4 and all design requirements
established by the Florida Accessibility Code and the Americans with Disabilities Act(ADA).
3.2 The Developer agrees that the Design Services under this Agreement shall be
performed in conformance with the standards of care and quality adopted or accepted by the
American Institute of Architects and the Florida Building Code. Any designs, drawings, or
specifications prepared or furnished by the Developer that fail to meet the requirements of
Section 3.1 above, or otherwise are defective or contain errors, conflicts or omissions, will be
promptly corrected by the Developer at no cost to CRA. The Developer will promptly
reimburse City for any and all damages, including fines and incidental damages, without
limitation, resulting from the use of such defective designs, drawings, or specifications;
provided, however, that Developer's maximum liability for such damages shall be the limits of
the commercial general liability insurance policy provided by Developer pursuant to Section 10
of this Agreement. CRA's approval, acceptance, use of, or payment for all or any part of the
Design Services shall in no way alter the Developer's obligations with respect to the design of
the Project or CRA's rights under this Agreement.
3.3 The Developer shall be fully responsible for coordinating all the Work required
under this Agreement regardless of whether performed by its own employees or a
Subconsultant or Subcontractor so as to insure that the services required are performed in an
efficient, timely and economical manner. The Developer shall be responsible to CRA for the
services furnished to the Developer by a Subconsultant, or Subcontractor to the same extent as
if the Developer had furnished the service itself. All Subconsultant Contracts and
Subcontractor Contracts shall be submitted to CRA for approval in accordance with Section 9
below. The Developer shall require in such Contracts that the Subconsultant or Subcontractor
be bound to, and to assume toward, the Developer all the obligations and responsibilities which
the Developer, by this Agreement, assumes toward CRA. Failure by the Subconsultant or
Subcontractor to comply with all of the Developer's obligations and responsibilities set forth in
this Agreement shall be a material breach of the Subconsultant's or Subcontractor's Contract.
The Developer also agrees to reasonably cooperate and reasonably coordinate with the Design
Consultant or other consultants retained directly by CRA.
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3.4 The Developer shall not specify in the Plans and Specifications a particular
design, process or product that infringes upon any patent. The Developer shall defend suits or
claims for infringement of patent rights and indemnify and hold CRA harmless from any loss,
cost or expense, including attorneys' fees incurred, which results if the Developer violates the
requirements of this Section 3.4; provided, however, that Developer's maximum liability for
such loss, cost or expense shall be the limits of the commercial general liability insurance
policy provided by Developer pursuant to Section 10 of this Agreement.
3.5 The Developer shall design and construct or cause to be designed and
constructed the Project for CRA at the Garage Property with supporting improvements,
facilities and equipment as described or reasonably inferable from the Contract Documents.
The Developer shall provide, furnish and install all Materials and all Services except to the
extent specifically indicated in the Contract Documents to be furnished by or the responsibility
of others, as and when required for, or in connection with the design, construction, furnishing
or equipping of, or for inclusion or incorporation in, the Project in accordance with the Contract
Documents. Without limiting the foregoing, the Developer's Work shall be in compliance with
the Contract Documents. To the extent practicable, the Developer shall utilize "value
engineering" in connection with the Project.
3.6 The Developer agrees and represents that it possesses the requisite skills to
perform the Work and that the Work shall be executed in a good and workmanlike manner, free
from defects, and that all Materials shall be new and approved by or acceptable to CRA, except
as otherwise expressly provided for in the Contract Documents. The Developer shall cause all
Materials and other parts of the Work to be readily available as and when required or needed
for or in connection with the construction, furnishing and equipping of the Project.
3.7 The Developer shall provide, in a digital format acceptable to the CRA, a critical
path schedule, or such other type of schedule as CRA may approve, and periodic updating and
other necessary schedules (all of which are hereinafter collectively referred to as the "Progress
Schedule") in the interest of completing the Project in the most expeditious and economical
manner and in accordance with Section 1.4. Within sixty (60) calendar days after execution of
this Agreement, the Developer shall prepare and submit for CRA's approval the Progress
Schedule for the Work. The Progress Schedule shall indicate the dates for the commencement
and completion of the various stages of design and construction and shall be revised as required
by the conditions of the Work, subject to approval by CRA. The Progress Schedule shall
encompass the design and all of the trades necessary for the construction of the Project and
shall be sufficiently complete and comprehensive to enable progress to be monitored on a
weekly basis. The parties acknowledge and agree that notwithstanding any theoretical delays
or theoretical extensions of time for Substantial Completion (as defined in Section 6.4) as may
be shown on the Progress Schedule, the Substantial Completion Date (as defined in Section
6.1) shall be governed by this Agreement and shall be extended only in accordance with the
procedures set forth in this Agreement.
3.8 The Developer shall provide competent supervision of all phases of the Work.
The Developer's Project Representative is set forth in Section 1.2. Any change in the
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Developer's Project Representative must be approved by CRA. The Developer's Project
Representative shall represent the Developer and communications given to the Project
Representative shall be as binding as if given to the Developer.
3.9 Neither CRA nor the Design Consultant makes any warranties to the Developer,
express or implied, that the Contract Documents are free of errors or omissions. Rather, the
Developer shall carefully study and compare Contract Documents with each other, with
information furnished by City, and shall carefully inspect and verify field conditions, and shall
at once report to the CRA all errors, inconsistencies or omissions discovered. The Developer
shall not be liable for damages resulting from errors, inconsistencies or omissions in the
information provided by the CRA unless Developer should have reasonably recognized error,
inconsistency or omission or knowingly failed to report it to the CRA. If the Developer
proceeds with the design and performs any construction activity knowing it involves a
recognized error, inconsistency or omission without such notice, the Developer shall assume
appropriate responsibility for such performance and shall bear an appropriate amount of the
attributable costs for correction. The intent of the Contract Documents is to include all items
necessary for the proper performance and completion of the Work. The Contract Documents
are complementary, and what is required by any one shall be as binding as if required by all.
3.10 If conditions are encountered at the site which are (1) subsurface or otherwise
concealed physical conditions which differ materially from those indicated in the Contract
Documents or (2) unknown physical conditions of an unusual nature, which differ materially
from those ordinarily found to exist and generally recognized as inherent in construction
activities of the character provided for in the Contract Documents, then written notice by the
Developer shall be given to CRA promptly before such conditions are disturbed. If the
conditions differ materially from those indicated in the Contract Documents and were not
known to the Developer at the time this Agreement was executed, and cause a material increase
or decrease in the Developer's cost of, or time required for, performance of any part of the
Work, an equitable adjustment in the GMP or Contract Time, or both, may be made in the CRA
Board's reasonable discretion.
3.11 The Developer shall prepare or cause to be prepared, as part of the Work, all
shop drawings, samples, submittals and detail drawings not made a part of the Plans and
Specifications, and Addenda which are required in the performance of the Developer's
obligations under this Agreement. All shop drawings, submittals, samples, and detail drawings
shall be submitted to the City and the CRA for their use but not for their approval. Although
the City and the CRA will review all shop drawings, submittals, detail drawings, and samples,
the City and the CRA shall not be responsible to the Developer for any failure of the shop
drawings, submittals, detail drawings or samples to comply with the Contract Documents or
any governing codes, laws or ordinances. The Developer shall maintain copies of all shop
drawings, submittals and detail drawings, and maintain all samples at the Project and shall
afford the City and the CRA access to the documents at all times during regular working hours.
3.12 The Developer shall maintain one record set of Contract Documents in good
order and marked currently to record all changes made during construction and an accurate
location of all portions of the Work sufficient to prepare accurate as-built Plans and
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Specifications. All of these, including the as-built Plans and Specifications, shall be delivered
to the CRA upon Final Completion of the Work for review and incorporation into the record set
of documents.
3.13 The Developer shall deliver to the CRA all equipment data, along with its
recommended spare parts list, maintenance manuals, manufacturers' warranties and operations
manuals as may be required for City's employees, agents or contractors to maintain and operate
any equipment delivered as part of the Work.
3.14 Required certificates of inspection, testing or approval shall be obtained by the
Developer and promptly delivered to CRA. If CRA or the Design Consultant desire to observe
the inspections, tests or approvals required by the Contract Documents, City shall notify the
Developer of that desire, and the Developer shall notify the CRA and Design Consultant of the
dates and times of the inspections, tests or other approvals.
3.15 The Developer shall pay all sales, consumer, use and other similar taxes for the
Work or portions of each, which are legally required at any time during the Developer's
performance of the Work. The parties acknowledge and agree that Developer may implement a
"Direct Owner's Purchase Program" in order to utilize the City's sales tax exemption for the
purchase of Materials and supplies for the Project. The responsibilities of the CRA, the City
and the Developer relating to such Direct Owner's Purchase Program shall be governed and
controlled in accordance with the terms and conditions of the Procedure for Direct Owner's
Purchase Program set forth in Exhibit "10". If the City and the CRA participate in the
Developer's Direct Owner's Purchase Program, the parties agree that the monies saved shall
not (a) decrease the GMP for the Construction Work, (b) result in any changes to the
Substantial Completion Date; or (c) result in any liability to the City or the CRA. Without
limiting the foregoing, Developer agrees to indemnify and hold the City and the CRA harmless
from any liability, claims, costs, damages, fines, fees, and expenses of any kind whatsoever
including, but not limited to, attorneys' fees and costs (at both the trial and appellate levels)
caused, resulting or arising from, or related to the Developer's Direct Owner's Purchase
Program. Notwithstanding the foregoing, if Design/Build in good faith complies with its Direct
Owner's Purchase Program and the State of Florida denies such sales tax exemption, any
resulting sales taxes, fines, costs, and expenses shall be included in the Cost of the Work,
subject to the GMP for Construction Work.
3.16 The Developer shall pay all royalties and license fees that are legally required at
any time during the Developer's performance of the Work. The Developer shall defend all
suits or claims for infringement of any patent rights and shall hold City harmless from any loss,
liability or expense on account of any such suits or claims, including attorneys' fees (at both the
trial and appellate levels); provided, however, that Developer's maximum liability for such
loss, liability or expense shall be the limits of the commercial general liability insurance policy
provided by Developer pursuant to Section 10 of this Agreement.
3.17 The Developer and any Subconsultants, or Subcontractors shall use their best
efforts to cooperate with the City and Design Consultant during the period of design and
construction of the Project in order to minimize disruption of services.
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4. DESIGN SERVICES.
4.1 Basic Services.
4.1.1 The Developer shall provide or cause to be provided those services,
including, without limitation, architectural, structural, mechanical, electrical, plumbing, fire
protection and any other engineering services necessary to produce a complete and accurate set
of plans and specifications for the permitting and construction of the Project (collectively
referred to as the "Plans and Specifications" or "Construction Documents"). The Developer
warrants that at the time of completion, the Plans and Specifications will be adequate and fit to
accomplish the intended purpose of the Project. CRA's review or approval of the Plans and
Specifications shall in no way diminish or release the foregoing warranty of adequacy and
fitness for the intended purpose or the Developer's obligations in this respect.
4.1.2 The Design Services shall be performed in accordance with Sections 4.2
and 4.3 of this Agreement. Time is of the essence with respect to the performance of the
Design Services for the Project. The Developer shall not, except for cause beyond the
reasonable control of the Developer, exceed time limits established by this Agreement. Any
adjustments to the schedule must be approved in writing by CRA and must be requested in
writing by the Developer within five (5) calendar days after the Developer knew or should have
known of the occurrence upon which the Developer's request for adjustment is based.
4.1.3 The Developer shall be responsible for preparing and filing the
documents required for approval (including, without limitation, all land use and zoning
approvals and any approvals or legislation necessary to share parking) of governmental or
governing authorities having jurisdiction over the Project to ensure that final approval and
permits for the performance of the Work will be obtainable prior to the Construction Phase.
The Developer shall be responsible for the costs and expenses of any such preparation and
submittal. Such documents shall be submitted to the CRA staff and the City staff for review
and approval prior to filing with the authorities. The Developer shall interface and coordinate
with permitting agencies and shall participate in meetings with appropriate agencies and
respond to and incorporate appropriate preliminary and final permit review comments. The
CRA and the City shall join as a signatory to any submittals or applications if required by
applicable law.
4.1.4 The Developer shall procure surveys as required describing physical
characteristics, legal limitations and utility locations for the Garage Property. The surveys may
include, as applicable, grades and lines of streets, alleys, pavements and adjoining structures;
adjacent drainage; rights-of-way, restrictions, easements, encroachments, boundaries and
contours of the site; locations, dimensions and necessary data pertaining to existing buildings,
other improvements and information concerning available utility services and lines, both public
and private, above and below grade, including inverts and depths. All the information on the
survey shall be referenced to a Project benchmark.
4.1.5 The Developer shall establish an organization and lines of authority in
order to coordinate, monitor, and report the progress of each phase of the design and shall
12
furnish a competent staff for the administration, coordination, and supervision of the Design
Services. All services shall be performed by the Developer's own staff or Subconsultants
approved as part of the Developer's team, unless otherwise authorized in writing by the CRA or
the City. The employment of, contract with, or the use of the services of any Subconsultant
shall be subject to the City or the CRA's written approval in accordance with Section 9 below,
such approval not to be unreasonably withheld or delayed. No such approval shall be construed
as an agreement between the City or the CRA and any Subconsultant.
4.1.6 The Developer shall furnish to the City and the CRA for review and
approval, a description of key personnel to be used on the Project, such approval not to be
unreasonably withheld or delayed. Such description shall include a current resume of academic
training and professional experience. Developer represents to the best of its knowledge that the
descriptions and resumes submitted to the City and the CRA pursuant to this Agreement shall
be true in all material respects. The Developer shall not substitute any personnel without the
City and the CRA's prior written consent. Before any such substitution, Developer shall
submit to CRA a detailed justification supported by the qualifications of any proposed
replacement.
4.1.7 The Developer shall prepare and submit to the City and the CRA a
Design/Production Schedule and Work Plan, including a Proposed List of Drawings, a Quality
Assurance Plan, and a schedule of key interface dates with the City and the CRA, including
milestone submittal dates. This information shall be defined as the Design Work Plan. Once
approved by City, the Design Work Plan shall be updated as necessary or as requested by CRA.
The Design Work Plan shall include at a minimum the following:
a. Design Team Organization and Directory identifying all team
members and contact information.
b. Project Management/Quality Assurance Plan detailing the duties
and responsibilities of the Design Team, and how Project
management and coordination will be organized.
C. Design/Production Schedule including work force projections.
4.1.8 The Developer shall provide or cause to be provided detailed
construction documents including architectural, structural, mechanical, electrical, plumbing,
fire protection and others in accordance with Section 4.2 and 4.3 and the Contract Documents.
4.1.9 The Developer shall verify existing site conditions and conduct field
investigations, as reasonably necessary to assure all documentation is accurate. The Developer
shall provide logs of field investigations to the CRA on a bi-weekly basis for review. Field
verification logs shall consist of names of field investigators, date, time, area, findings, issues
and results. The Developer's responsibilities to field verify include, but are not limited to,
developing as-built drawings from field surveys, site exploratory work, and any other means
and methods necessary to ensure a complete verification of existing conditions.
13
4.2 Schedule of Performance.
4.2.1 On or before scheduled due dates for the construction of the garage and
each future phase of each building comprising the Project, the Developer shall make milestone
submittals to the City and the CRA in accordance with the following table:
Phase Milestone Due Date
Construction Documents 65% Submittal December 21,2009
Construction Documents 100% Submittal January 25,2010
4.3 Submittals and Review of Design Documents.
4.3.1 Review Procedures. The following procedures shall be followed for
review of the 65% and 100% Construction Documents, and any other Design Services
submittals by Developer.
a. The Developer shall submit Construction Documents for review
in accordance with the schedule established in Section 4.2
b. The City or the CRA will be required to provide all review
comments to the Developer within fourteen (14) calendar days
from receipt of the milestone submittal.
C. The Developer shall respond to and incorporate milestone review
comments transmitted by the City or the CRA.
d. Unless otherwise agreed to in writing, the Developer shall
respond in writing, on a form provided by the City or the CRA,
within seven (7) days of receipt of the review comments. The
City, the CRA or Design Consultant will log, transmit and
facilitate the exchange of review comments. The Developer shall
also maintain a similar log and make it available to the City and
the CRA at all times.
e. Replies to Responses: The City and the CRA reviewers will reply
within seven (7) days to any responses requiring confirmation
and will advise the Developer if any further reconciliation is
required.
f. Resolution of differences: The CRA will schedule a meeting
between the Developer team and the CRA team, to take place
within seven (7) days after review comments are issued to the
Developer, in order to resolve all issues between teams. The CRA
or Design Consultant will arrange additional meetings or
conference calls if necessary, in order to expedite resolution and
avoid impact to the Project Schedule or the Contract Documents.
14
g. Backcheck Review: If any comments remain unsatisfied,
additional backcheck submittals shall be required until all
comments have been satisfied. Any costs associated with
Developer's preparation of the backcheck submittals shall be the
Developer's responsibility and shall be taken into consideration
for evaluation of Developer's performance and progress
payments.
h. Resolution of all review comments is requisite for completion of
any phase of the Design Services.
4.3.2 Milestones Submittals and Reviews. The Construction Documents
65% milestone submittal shall consist of eleven (11) full size sets of drawings; three (3) 11" x
17" -size sets of drawings and five (5) sets of Project manuals, and shall include design
narratives for all disciplines, with calculations and other information fully explaining and
supporting the Contract Documents. The City and the CRA shall review this submittal pursuant
to the review procedures set forth in Section 4.3.2. This set, with full resolution of review
comments, as determined by the City and the CRA, shall establish compliance with completion
of the Construction Documents 65% submittal milestone. Once approved by the City and the
CRA the 65% Construction Documents shall become the "Approved 65% Construction
Documents" and shall not be altered, modified, or revised without the City and the CRA's prior
written approval.
The 100% Construction Documents, which shall be based upon the Approved 65%
Construction Documents, shall serve to monitor progress of the Work. All recommendations of
the City and the CRA from this review shall be incorporated into the Construction Documents
prior to submission of the Construction Documents 100% submittal milestone. The
Construction Documents 100% submittal milestone shall consist of eleven (11) full size sets of
drawings; I I" x 17" -size sets of drawings and five (5) sets of Project manuals for the City and
the CRA to review pursuant to review procedures set forth in Section 4.3.2. This set with all
resolution of comments from this review incorporated into the documents shall establish
completion of the Construction Documents 100% submittal milestone. The 100% Construction
Documents with full resolution and all comments pending from any previous reviews shall
establish completion of the Construction Documents 100% submittal milestone. Once
approved by the City and the CRA the 100% Construction Documents shall become the
"Approved 100% Construction Documents" and shall not be altered, modified, or revised
without the City and the CRA's prior written approval. Any material design modifications to
the Approved 100% Construction Documents requested by the City or the CRA shall be
reflected in a Change Order.
15
4.4 Construction Phase.
4.4.1 The Developer shall be responsible f p p or coordinating Y
with the City and
the CRA in order to prepare and file the documents required for the approval of go
vernmental
authorities having jurisdiction over the Project.
4.4.2 Throughout the course of construction the Developer shall maintain an
up-to-date set of Plans and Specifications and reproducible drawings, which show or describe
all clarifications, addenda, substitutions and approved Change Orders. Upon the completion of
each building comprising the Project, the Developer shall provide the City or the CRA with a
set of record drawings and electronic files, as directed by CRA, showing the complete Project
as built (incorporating data concerning as-built conditions) as well as specifications and other
documents as may be required by CRA. This shall include all changes in the Work during the
Construction Phase.
4.4.3 During the construction phase, the Developer shall reasonably cooperate
with, and respond to, any reasonable requests or requirements of the Design Consultant.
5. DESIGN CONSULTANT'S RESPONSIBILITIES
5.1 The parties acknowledge and agree that the CRA may engage a Design
Consultant to assist the CRA in the administration of this Agreement. The Design Consultant
shall act as an "owner's representative" and shall have no authority to bind CRA or direct
Develo
per er excep
t pt as expressly set forth herein.
5.2 The Design Consultant shall at all times have access to the Garage Property and
the Work wherever it is in preparation or progress.
5.3 If requested by CRA, the Design Consultant shall prepare proposed Change
Orders with supporting detailed cost documentation and data for CRA's approval and execution
in accordance with the Contract Documents. If requested by CRA, the Design Consultant shall
evaluate the detailed cost estimate and scope of the Developer's proposals with respect to
proposed Change Orders and substitutions proposed by a Developer and make
recommendations to CRA. The Design Consultant has no authority to authorize changes in the
Contract Documents of any kind or to modify any deadlines for completion of Work specified
in the Contract Documents.
6. TIME FOR PERFORMANCE FOR CONSTRUCTION.
6.1 If the Developer is delayed in the performance of the Work by fire, hurricane, or
unavoidable casualties not the fault of the Developer or causes beyond the Developer's control,
then the "Substantial Completion Date" (defined as the date on which Substantial Completion
occurs), shall be extended for a period equal to the length of such delay to the extent that such
delay impacts an activity of the Developer that is a critical path activity and only if within ten
(10) calendar days after the Developer knows or should have known of any such delay the
Developer delivers to CRA, a written request for extension for such delay, and such request is
16
approved by CRA, which approval shall not be unreasonably withheld by CRA. In case of a
continuing cause of delay of a particular nature, the Developer shall be required to make only
one such request.
6.2 The Substantial Completion Date, the Contract Time and the GMP take into full
consideration the effect of inclement weather during the construction period and such effect on
both cost and time for completing the Work is accounted for in the GMP, and the Substantial
Completion Date (as defined in Section 6.1). The Substantial Completion Date incorporates
the Developer's expectation that it will experience that number of working days of weather
delay equal to the historical norm per the NOAA National Weather Service's web site for the
given time period for the location closest to the Project location during construction of the
Project. An extension of the Contract Time for weather delays may be claimed only for delays
caused by adverse weather which affects scheduled working hours on scheduled work days (but
excluding any legal holiday unless previously scheduled) and only after the Developer has
previously been delayed by weather for at least the number of anticipated working days of
weather delays as set forth in this Section 6.2, and then only to the extent of the actual number
of days' delay in those activities which are critical path activities. The Developer shall provide
CRA with written notice of all delays claimed due to weather, such written notice shall identify
the critical path activity(ies) affected and shall be delivered within five (5) days of the delay.
CRA shall determine whether extension of the Contract Time is justified. Extension of time
shall be the Developer's sole remedy for any such delay.
6.3 Delays which affect those activities not identified on the Project's critical path
shall not be considered for a Contract Time extension unless the delay shall have been caused
by acts constituting intentional interference by CRA or the Design Consultant, which shall
include, but not be limited to, the failure of the CRA's Project Representative to timely respond
to approval requests of the Developer's Project Representative with the Developer's
performance of the Work, and then, only to the extent that such acts continue after the
Developer has provided written notice to CRA of such interference. CRA's exercise of any of
its rights under Article 7, regardless of the extent or number of such changes, or CRA's
exercise of any of its remedies of suspension of the Work, or requirement of correction or
replacement of any defective Work, or its strict adherence to the Contract Documents shall not
under any circumstances be construed as intentional interference with the Developer's
performance of the Work.
6.4 "Substantial Completion" shall be defined to include all work (exclusive of
minor items of unfinished work which do not preclude beneficial use of the premises) required
to complete the Work set forth in the Contract Documents. Substantial Completion shall be
deemed to have occurred upon the submission of a Certificate of Substantial Completion (in the
standard AIA form) to the CRA by the architect of record and the issuance of a Temporary
Certificate of Occupancy for the Project. The Developer shall have forty-five (45) calendar
days after the date of Substantial Completion (the "Final Completion Date") within which to
complete all remaining Work required by the Contract Documents (the completion of all such
Work, including any Work unfinished at the date of Substantial Completion, and the fulfillment
of all requirements of the Contract Documents being referred to herein as "Final Completion").
Prior to the Developer requesting the CRA and Design Consultant to perform the Substantial
17
Completion review, the Developer shall inspect the applicable portion of the Project and
prepare a list of all deficient and unfinished work. The list shall be submitted to the CRA for
review. At Substantial Completion, a Final Punch List will be prepared and provided to the
Developer. The Final Punch List will contain a listing of all known remaining incomplete items
of the Work, but is not to be considered by the Developer as a waiver by City of the
Developer's obligation to complete all the Work in complete compliance with Contract
Documents. In the event the remaining Work is not completed or the Developer has not
demonstrated to City that a "good faith" effort has been made within the forty-five (45)
calendar days, Liquidated Damages, as defined and explained in Section 6.6 herein, will be
charged against the Developer. Time is of the essence in the performance of the Work.
6.5 The CRA may direct the Developer to expedite the Work by whatever means the
Developer may use, including, without limitation, increasing manpower or working overtime to
bring the work back within the currently submitted and approved Progress Schedule. If the
expediting of Work is required due to reasons within the control or responsibility of the
Developer, then the additional-costs incurred shall not result in an increase to the GMP.
6.6 If the Developer shall neglect, fail, or refuse to complete the applicable portion
of the Work by the Substantial Completion Date and the Final Completion Date, subject to any
proper extension granted by CRA, then the Developer agrees to pay to CRA, or to cause the
Developer's surety to pay to CRA, the amounts specified in Section 1.4, not as a penalty, but
as liquidated damages for the damages ("Liquidated Damages")
that wo
uld be suffered by CRA
as a result of delay for each and every calendar day that the Developer shall have failed to
complete the applicable portion of the Work by the Substantial Completion Date or the Final
Completion Date. The amounts are fixed and agreed upon by and between the Developer and
City because of the difficulty of fixing and ascertaining the actual damages CRA would in such
event sustain, and the amount is agreed to be the amount of damages that CRA would sustain.
The amount may be retained by CRA from current periodic pay estimates or from retainage,
but if the amount owing or retained is insufficient to fully pay CRA the Liquidated Damages,
the Developer agrees to pay, or cause the Developer's surety to pay, the insufficiency to CRA.
7. CHANGE ORDERS.
7.1 From time to time, CRA may authorize changes in the Work, issue additional
instructions, require additional Work or direct the omission of Work previously ordered. Only
those changes in the Work that are approved on a Change Order in the form of Exhibit "A" and
executed by an authorized representative of City ("Change Order"), shall be binding on CRA.
7.2 CRA may order changes in the Work by initiating a change order request
("Change Order Request"), setting forth in detail the nature of the requested change. Upon
receipt of a Change Order Request, the Developer shall prepare a statement setting forth in
detail, with a suitable detailed breakdown by trades and work classifications with respect to a
change in the scope of the construction and a detailed breakdown of the time and expenses
related to the design phase, the Developer's estimate (the "Developer's Estimate") of the
changes in the GMP attributable to the changes set forth in such Change Order Request and
proposed adjustments, if any, to the Substantial Completion Date resulting from such Change
18
Order Request. If the CRA and the Developer agree on a cost ("Agreed Cost"), a Change
Order shall be processed by the CRA or Design Consultant and delivered to the Developer for
signature. Developer shall not commence changes in the Work until the Change Order is
executed. Agreement on any Change Order shall constitute a final settlement on all items
affected therein, including without limitation any adjustment in the GMP, the Substantial
Completion Date, subject to performance and payment pursuant to the terms of this Agreement
and such Change Order. Work provided by unit price may be increased or decreased in
quantity as directed by the CRA approval, provided that the basis for adjustment of the GMP
shall be the unit prices agreed upon by the CRA upon the date of this Agreement.
7.3 In the event the CRA and the Developer cannot agree on any adjustment in the
GMP, extensions to the Contract Time, or adjustment to the Substantial Completion Date, the
Developer shall nevertheless proceed to perform the Work required by CRA's Change Order
Request upon receipt of CRA's written direction. The Developer shall keep separate records of
all costs and time required to perform the Work required by the Change Order Request, and an
equitable adjustment will be made upon agreement between the Developer and CRA. The
Developer shall submit its time and material costs that accrue as a result of the Change Order
Request on a weekly basis. If the CRA does not approve such submittals within seven (7) days
following submission, the Developer may cease the work related to such Change Order Request
until the parties agree upon the terms and conditions of such Change Order Request.
7.4 In the event that changes in the Work are required on an emergency basis in
order to protect the health and safety of the public, the Developer shall proceed at the direction
of the CRA without a written Change Order from CRA. The Developer shall keep separate
records of all costs and time required to perform the Work. After review and approval by the
CRA, the Developer shall invoice City in accordance on a time and materials basis. In the
event that the work can be stopped without any further harm to the public but additional Work
is necessary, the Developer shall deliver the Developer's Estimate to the. CRA as soon as
practical and the requirements of Sections 7.2 or 7.3 shall be met before the Developer resumes
the changes to the Work.
7.5 It is understood and agreed that refinement and detailing will be accomplished
from time to time with respect to the Plans and Specifications. No adjustment in the GMP or
the Substantial Completion Date, shall be made unless (a) such refinement or detailing results
in changes in the scope, quality, function or intent of the Plans and Specifications, and Addenda
not reasonably inferable or anticipatable by a Developer of the Developer's experience and
expertise, (b) the Developer advises City in writing within seven (7) calendar days of the
Developer's receipt of the refinements and details that an adjustment is required, and (c) the
CRA Board agrees to the adjustment.
8. PAYMENTS.
8.1 In full consideration of the full and complete performance of the Work and all
other obligations of the Developer under this Agreement, CRA shall pay to the Developer the
Contract Sum for the Design Services and Construction Work, respectively, subject to additions
and deductions as provided in this Agreement. The provisions of this Section 8 apply to
19
payments for both the Design Services and Construction Work. All references to Work, Cost
of Work, and GMP shall apply to both Design Services and Construction Work.
8.2 Upon the attainment of each certain percentage completion of the Project as set
forth on Exhibit "B-1" attached to this Agreement, the Developer shall submit to the CRA for
its approval an original Request for Payment in the form attached as Exhibit `B". Submission
of any original certificates, waivers of liens and claims, or other documents required in this
Agreement to be submitted, is a condition precedent to CRA's obligation to pay Developer
under this Agreement. Attached to this Agreement as Exhibit "B-2" is a schedule of values
allocating the entire GMP among the various portions of the Work connected with construction
of the Garage (the "Schedule of Values"). The Schedule of Values shall be used as a basis for
reviewing the Developer's Request for Payment. The Request for Payment shall show a
complete breakdown of (a) the Cost of the Work for all requested costs for planning, design,
engineering and construction of the Project's Garage component including all labor and
Materials, (b) the actual portion of the Work connected with the Garage completed and the
amount due, and (c) such supporting evidence as may be required by CRA including, but not
limited to, the documents set forth in Section 8.9 below, all in a form and substance acceptable
to the CRA and CRA Attorney. The Request for Payment shall constitute a representation to
Y q Y p
the CRA that (i) the Work has progressed to the point indicated, (ii) the quality of the Work is
in accordance with the Plans and Specifications, and (iii) all monies previously reimbursed by
the CRA to the Developer have been disbursed to the appropriate Subconsultants,
Subcontractors, materialmen, vendors and miscellaneous suppliers based upon the prior
Request for Payment. Provided that the Developer submits all required documentation as
required herein, CRA shall tender all payments to the Developer within thirty (30) calendar
days of receipt of the Request for Payment or sooner if practicable less any retainage required
by Section 8.5 below and minus amounts, if any, for which CRA has withheld funds pursuant
to its rights under any portion of the Contract Documents. Inadequately supported charges are
subject to disallowance, however, CRA will make payments of the balance of the Request for
Payment when such amounts are approved. The Request for Payment shall also include the
cost of Materials not incorporated in the Work, but delivered and suitably stored at the Garage
Property or at some other location approved by CRA.
8.3 The CRA or Design Consultant shall review each such Request for Payment and
may make such exceptions as the CRA reasonably deem necessary or appropriate under the
state of circumstances then existing. In no event shall CRA be required to make payment for
items to which CRA reasonably takes exception.
8.4 CRA shall make payment to the Developer in the amount approved, subject to
Section 8.2. The payment of any Request for Payment by CRA, including the Final Request,
does not constitute approval or acceptance by CRA of any item of the Work in such Request
for Payment, nor shall it be construed as a waiver of any of CRA's rights under this Agreement
or at law or in equity.
8.5 The Developer agrees that ten percent (10%) of the amount due for Work as set
forth in each Request for Payment where such Work is performed under a Subconsultant
Contract or Subcontractor Contract that authorizes Developer to hoed retainage shall, be retained
20
by City until Final Payment (as defined in Section 8.6). For portions of the Work where the
Developer pays one hundred percent (100%) of labor and agreed upon burden or an invoice
from a Subcontractor, Subconsultant, vendor, materialmen, or supplier, retainage shall not be
required. The foregoing shall not apply to self-performed Work from which ten percent (10%)
shall be retained by the CRA until Final Payment. If the Developer has furnished Bonds in
accordance with Section 12.1, and the Developer is performing satisfactorily when the
Developer obtains and delivers to the CRA the Temporary Certificate of Occupancy or the
Certificate of Occupancy, City may elect to reduce the amount retained. All requests for
retainage reductions must be made in writing prior to invoicing for same. CRA may, but shall
not be obligated to, request consent of the Developer's surety to such reduction. The Developer
may also apply for a release of retainage for Subcontractors, vendors, materialmen, and
suppliers for portions of the Work that have been one hundred percent (100%) complete for
thirty (30) days or more, and for a reduction of retainage to five percent (5%) after Substantial
Completion. In those cases, the CRA has no obligation to release or reduce such retainage but
may do so in its sole and absolute discretion. However, the Developer shall remain liable for
Subcontractor's work and for any unpaid laborers, vendors, materialmen, suppliers or
Subcontractors in the event it is later discovered that the Work is deficient or that any of the
laborers, vendors, materialmen, suppliers, or Subcontractors did not receive payments due them
on the Project.
8.6 Within thirty (30) days after Final Completion of the Work and acceptance of
the Work by CRA or as soon thereafter as possible, the Developer shall submit a final request
for payment ("Final Request") which shall set forth all amounts due and remaining unpaid to
the Developer (including the unpaid portion of the retainage) and upon approval by CRA, CRA
shall pay to the Developer the amount due under such Final Request ("Final Payment") within
thirty (30) days of the satisfaction of requirements for Final Payment as set forth in Section 8.7
below.
8.7 The Final Request shall not be made until the Developer delivers to the CRA
complete original releases of all liens and claims signed by all Subcontractors, materialmen,
suppliers, and vendors on the form Certificate of Subcontractor & Final Waiver of Liens and
Claims attached to this Agreement as Exhibit "C" and an affidavit that so far as the Developer
has knowledge or information, the releases include and cover all Materials and Work for which
a lien or claim could be filed. The Developer may, if any Subcontractor, materialmen, supplier
or vendor refuses to furnish the required Final Waiver of Lien, furnish a bond satisfactory to
CRA to defend and indemnify CRA and any other property owner, person or entity CRA may
be required to indemnify against any lien or claim. In addition, and as a condition precedent to
CRA's obligations to make Final Payment, the Developer shall execute and deliver to the CRA
(a) a Certificate of Developer & Final Waiver of Liens and Claims of the Developer on the
form attached to this Agreement as Exhibit "D," and (b) the written consent of Developer's
surety. Notwithstanding the foregoing, provided the Developer's surety provides the CRA with
its unqualified consent to Final Payment, the following method for Final Payment shall be
followed. Within thirty (30) days following the CRA's approval of the Final Request, CRA
shall pay the Developer the amount due under such Final Request less any retainage then held.
Following delivery by Developer to the CRA of the original releases of all liens and claims
signed by all Subcontractors, materialmen, suppliers and vendors, as well as the documents set
21
forth in subsections (a) and (b) above, the CRA shall pay the Developer the remaining amounts
in the Final Request representing any remaining retainage held by the CRA.
8.8 Any provision of this Agreement to the contrary notwithstanding, CRA shall not
be obligated to make full payment to the Developer if any one or more of the following
conditions exists:
a. the Developer is in default of any of its obligations under any of the
Contract Documents or is in default of any other obligation owed by
Developer to City under this Agreement or any other agreement or
transaction between the Developer and CRA in connection with the
Project;
b. any part of such payment is attributable to Work which is defective or
not performed in accordance with the Contract Documents;
C. the Developer has failed to make payments within ten (10) days of
receipt of payment from CRA to any Subcontractor or for Material or
labor used in the Work for which CRA has made payment to the
Developer; or
d. if CRA in its good faith judgment, determines that t g � g he portion of the
GMP then remaining unpaid will not be sufficient to complete the Work
in accordance with the Contract Documents then no additional payments
will be due the Developer under this Agreement unless and until the
Developer, at its sole cost, performs a sufficient portion of the Work so
that such portion of the GMP then remaining unpaid is determined by
CRA to be sufficient to so complete the Work.
CRA, in its reasonable discretion, shall determine the value associated with such
conditions and shall act to reduce Developer's payment by the determined amount.
8.9 Developer shall use the sums paid to it pursuant to this Article 8 solely for the
purpose of performance of the Work and the construction, furnishing, and equipping of the
Work in accordance with the Plans, Specifications, and Addenda and payment of bills incurred
by the Developer in performance of the Work. With the submission of each Request for
Payment the Developer shall furnish to the CRA a Certificate of Developer & Partial Waiver of
Lien on the form attached to this Agreement as Exhibit "E" and a certified statement
accounting for the disbursement of funds received from CRA. Such statement shall itemize all
disbursements to Subconsultants, Subcontractors, materialman, and vendors, and if required by
CRA, shall be accompanied by copies of subcontract payment vouchers, vendors' invoices,
payrolls and other data substantiating actual expenditures, as well as a Certificate of
Subcontractor & Partial Waiver of Lien, from each Subcontractor, material man, or vendor, on
the form attached to this Agreement as Exhibit 'F." As a condition precedent to the receipt of
Final Payment, all such parties shall submit a full and final waiver and release of mechanic's
lien rights for all sums due under their respective Subcontractor Contracts, purchase orders or
22
other agreements. However, no provision of this Agreement shall be construed to require CRA
to see to the proper disposition or application of the monies so advanced to the Developer,
except to the extent provided in Section 8.7.
8.10 Developer shall promptly pay all bills for labor and material performed and
furnished by its Subconsultants, Subcontractors, suppliers, vendors, and materialmen, in
connection with the construction, furnishing and equipping of the Project and the performance
of the Work.
8.11 The term "Cost of the Work" shall mean those actual costs necessarily incurred
and paid or payable by the Developer in connection with the proper performance of all the
Work connected with the Garage (including the Design Services and the Construction Work)
excluding those items set forth in Section 8.12, and shall include the following items:
8.11.1 Wages paid for labor in the direct employ of the Developer in the
performance of the Work at the Garage Property including actual effective FICA, state and
federal unemployment taxes, group insurance, worker's compensation insurance, and benefits
required by law or collective bargaining agreements, and for personnel not covered by
collective bargaining agreements, customary benefits such as sick leave, medical and health
benefits, holidays, vacations, and pensions provided such costs are based on the actual wages
and salaries of such employees. Any overtime premium or shift differential expense to be
incurred by the Developer shall require the CRA's advance written approval if the incremental
cost of the overtime premium or shift differential will be considered a part of Cost of the Work.
Overtime premium will not be considered part of the Cost of the Work cost unless the
individual has worked forty (40) hours during that same pay period (not to exceed one (1)
week) on the Project or the individual worked on the weekend at the CRA's request. Overtime
wages paid to salaried personnel (if approved in advance in writing by the CRA), will be
limited to the actual rate of overtime paid to the individual. No payroll charges or other
reimbursements for overtime hours worked on the Project will be allowed if the individual is
not paid for the overtime work. Payroll labor charges shall list individual employee names,
employee numbers (i.e. social security numbers), titles/classifications, actual hourly base rates,
and included benefits. Payroll labor charges shall be compiled on a weekly basis, substantiated
by a certified payroll register. Although the Developer will submit its billings for payroll and
benefits on a percentage basis, prior to final payment the Developer shall adjust its billing to
reflect the lower of actual or effective payroll tax and insurance rates.
8.11.2 Salaries and actual benefits (as described in Section 8.11.1 above) of the
Developer's supervisory or administrative personnel stationed at the field office, or with City's
prior written agreement at the Developer's home office, for the Work and employees engaged,
at shops or on the road, in expediting the inspection, production or transportation of the
material or equipment for the Work. The number of employees in these classifications, and the
rates of pay, shall be subject to prior written approval of City. All associated labor charges
must be detailed and substantiated by certified payrolls.
23
8.11.3 If approved in advance in writing by CRA, reasonable transportation,
traveling and lodging expenses of representatives of the Developer incurred in the discharge of
duties related to the Work.
8.11.4 The cost (including transportation, storage, operating and normal
maintenance costs) of all materials, equipment, temporary structures which house equipment,
materials, and supplies purchased or rented for use on the Project. For qualified tools and
equipment to be rented by the Developer from its own stock or the stock of its affiliates,
subsidiaries or related parties (collectively, "Developer's Stock"), the Developer shall submit to
CRA a detailed listing of such tools or equipment, together with the applicable rental rates (on
an hourly, daily, weekly and monthly basis), the estimated total rentals (based on the most
economical rental period), the proposed use of the tools or equipment, the original purchase
price and the date of purchase and the estimated current fair market value; provided, however,
the parties acknowledge and agree that it is not anticipated that there will be any rentals from
Developer's Stock. No rental costs for tools or equipment rented from Developer's Stock shall
be included in the Developer's Cost unless CRA is provided with the foregoing information
and CRA gives advance written approval of such rental. For equipment or tools rented from
Developer's Stock, the Developer shall maintain daily equipment usage reports noting the
hours and usage, as well as idle and standby time. Such equipment usage reports shall be used
to determine whether hourly, daily, weekly or monthly rates shall apply, and Developer's
billings shall be based upon the most economical rates to CRA. Rental rates for vehicles shall
include insurance, and shall not exceed $650 per month for vehicles three years of age. Rental
rates for equipment shall not exceed the current market rental rates from local third party
equipment rental companies.
Equipment rented or supplied by the Developer must be initially rented or supplied in
good working condition. Above normal maintenance, capital improvements, overhauls are not
chargeable to CRA. Daily, weekly or monthly rental rates are to be billed when it results in
cost savings to CRA. CRA reserves the right to dispose of all such materials, equipment,
temporary structures, tools and supplies which shall have been purchased, when no longer
required for the Work.
8.11.5 Amounts due under all Subcontractor Contracts and Subconsultant
Contracts made in accordance with the provisions of the Contract Documents. All contracts
issued to Subcontractors and Subconsultants must be let in accordance with the Contract
Documents. Any deviations must have prior written approval from CRA.
8.11.6 The cost of telephone, postage, photographs, blueprints, office supplies,
first aid supplies and related miscellaneous costs reasonably incurred in direct support of the
Work at the Garage Property.
8.11.7 Premiums (Net) on bonds and insurance, if any, that the Developer is
obligated to secure and maintain under the terms of the Contract Documents and such other
insurance and bonds as may be required, subject to the written approval of CRA, including
bonds for Subcontractor Contracts in excess of $50,000. Deductibles paid by Developer in
connection with any claims made under insurance policies required by this Agreement.
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Premiums paid as part of the Cost of Work Cost shall be net of trade discounts, volume
discounts, dividends, and other adjustments.
8.11.8 The cost of obtaining and using all utility services required for the Work.
8.11.9 The cost of all fees and assessments for the building permit and for other
permits, licenses, and inspections which the Developer is required by the Contract Documents
to pay.
8.11.10 The cost of prompt removal of all of the Developer's debris. All
Subcontractor Contracts shall require the prompt removal of all debris created by Subcontractor
activities and the Developer shall exercise its best efforts to enforce such requirements or to
effect an appropriate back charge to those Subcontractors who fail to meet their requirements in
this regard.
8.11.11 The cost and expenses, actually sustained by the Developer in
connection with the Work, of protecting and repairing adjoining property, if required, (CRA's
prior approval for repairs must be obtained except in emergencies), and of settlements for same
made with the written consent of CRA, except to the extent that any such cost or expense is due
to the failure of the Developer to comply with the requirements of the Contract Documents
with respect to insurance, or due to the failure of any officer of the Developer or of any of its
representatives having supervision or direction of the Work to exercise good faith or the highest
standard of care normally exercised in the conduct of the business of a general Developer
experienced in the performance of work of magnitude, complexity and type encompassed by
the Contract Documents, in any of which events any such expenses shall not be included in the
Cost of the Work.
8.11.12 Federal, state, municipal, sales, use and other taxes, as applicable to the
Project, all with respect to services performed or materials furnished for the Work, it being
understood that none of the foregoing includes federal, state or local income or franchise taxes.
8.11.13 All reasonable costs and expenditures necessary for the operation of the
project job site office, including cost of field computer services (quantity and rates are subject
to CRA's prior written approval), including job site terminal (ownership to CRA), for purposes
of field payroll preparation and control and such progress photos as required by CRA; copies of
all such photos to be dated, identified and furnished directly to CRA.
8.11.14 The cost of secured off-site storage space or facilities, which have been
approved by CRA. For all materials listed off-site, CRA shall be listed as owner with a Bill of
Sale issued to CRA for these items.
8.11.15 Any other expenses or charges incurred, with the prior written approval
of CRA, in the performance of the Work.
8.11.16 All cash and trade discounts, credits for early payment if funded by the
CRA, rebates, volume discounts, reduced payments or other benefits accruing to the Developer
25
in connection with the purchase or rental of materials, equipment, services or other goods
required under this Agreement shall accrue to CRA.
8.11.17 Legal fees and expenses required for the prosecution of the Work
provided the same are approved in writing by the CRA prior to being incurred. The foregoing
specifically excludes and legal fees and costs incurred in preparing and negotiating this
Agreement and any Change Orders as well as any legal fees and costs relative to any matters
between the Developer and CRA.
8.11.18 Costs of correction of the Work under Section 26.1 below, if the costs
are not attributable to the fault or negligence of the Developer or its Subcontractors, but this
inclusion shall not imply any responsibility of the Developer or its Subcontractors to correct
any Work after expiration of the limitation period provided in Section 26.1 below.
8.12 The Cost of the Work shall not include the following:
8.12.1 The services and related expenses, except as otherwise provided in
Section 8.11.1 above, of any officers or general office supervisory personnel of the Developer
and of personnel in the Developer's personnel, legal, advertising, data processing, scheduling,
labor relations, insurance and tax departments and all other costs of doing business (including,
but not limited to, copying, fax and computer charges), services and related expenses required
to maintain and operate the Developer's general offices and any established branch offices,
other than the field office for the Work.
8.12.2 The services and related expenses of the Developer's purchasing,
secretarial, estimating and accounting departments and clerical staff at the Developer's
s eneral
offices or an established branch offices. These services shall include ude all costs associated with
computer equipment and related expenses, copying equipment, fax charges (either by page or
machine costs), CADD equipment (unless approved in writing by CRA prior to invoicing for
same), signage, professional association costs (including, but not limited to, AGC/ABC Fees),
bonding charges (including, but not limited to, Fidelity Bonds on office or job site personnel),
or other related expenses.
8.12.3 The use of capital including interest employed for the Work.
8.12.4 Amounts required to be paid by the Developer for federal, state or local
income or franchise taxes.
8.12.5 Except as set forth in Section 8.11.18 above, costs due to the negligence
of the Developer, any Subconsultant or Subcontractor or supplier employed by the Developer or
anyone directly or indirectly employed by any of them, or for whose acts any of them may be
liable, including but not limited to the correction of defective work, disposal of materials and
equipment wrongfully supplied, or making good any damage to property.
8.12.6 Costs in excess of the sum of the GMP for Design Services and
Construction Work.
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8.12.7 Entertainment and meal expenses and charges of a personal nature.
8.12.8 Travel charges unless approved in advance of trip in writing by CRA. If
travel is authorized the charges are to be billed as a separate line item listing employee name,
purpose of trip, dates traveled and the daily cost of individual items for which reimbursement is
sought.
8.12.9 Bonuses, profit-sharing or other special labor Pp
charges unless approved in
g
writing by City prior to being incurred.
8.12.10 Except as set forth in Section 8.11.7, any legal fees and accounting fees.
8.12.11 All losses resulting from lost, damaged, or stolen tools or equipment.
8.12.12 Any cost not specified in Section 8.11 above.
9. SUBCONTRACTOR AND SUBCONSULTANT CONTRACTS AND
PURCHASE ORDERS.
9.1 Within sixty (60) calendar days after execution of the Agreement, the Developer
shall prepare and submit for CRA's approval the names of the persons or entities proposed by
the Developer to furnish materials, equipment, or services for each portion of the Work. The
Developer shall contract solely in its own name and behalf, and not in the name or behalf of
CRA with the selected Subcontractor or Subconsultant. The Developer's form of Subcontractor
Contract and Subconsultant Contract shall be subject to approval of City, and once approved
may be utilized by Developer without further approval by the CRA provided that no substantial
deviations are made to the approved form of Subcontractor Contract and Subconsultant
Contract. At a minimum, the Subcontractor Contract and Subconsultant Contract shall provide
that the Subcontractor or Subconsultant, as applicable, shall perform its portion of the Work in
accordance with all applicable provisions of this Agreement and the other Contract Documents,
that Subcontractor or Subconsultant is bound to the Developer to the same extent as the
Developer is bound to CRA, shall provide for a ten percent (10%) retainage for labor and
materials, shall provide for termination of the Subcontractor Contract and Subconsultant
Contract by the Developer in the same manner and method as provided in Article 37 of this
Agreement, and shall further provide that, in the event this Agreement is terminated for any
reason, that the Subcontractor or Subconsultant shall, at CRA's option, perform its Subcontract
Contract or Subconsultant Contract for CRA without additional or increased cost, provided the
Subcontractor or Subconsultant is paid in accordance with its Subcontractor Contract or
Subconsultant Contract. The Developer shall sign and cause each Subcontractor and
Subconsultant to sign an Assignment of Rights Agreement in the form attached to this
Agreement as Exhibit "G" (any cost for execution of the assignment will be borne by the
Developer and included in the GMP). Nothing contained herein shall, however, create any
obligation on CRA to assume any Subcontractor Contract or Subconsultant Contract or make
any payment to any Subcontractor or Subconsultant unless CRA chooses to request
Subcontractor or Subconsultant to perform pursuant to this Section 9.1 or as otherwise provided
27
in this Agreement, and nothing contained herein shall create any contractual relationship
between CRA and any Subcontractor or Subconsultant.
9.2 The Developer shall not contract with any Subcontractor, Subconsultant,
materialman, vendor, or supplier to whom CRA has made reasonable objection or with whom
the CRA could not lawfully enter into a contract.
10. INSURANCE.
10.1 The Developer shall provide or cause to be provided insurance of the type and
on the terms and conditions as specified in Exhibit"H" attached to this Agreement. The cost of
this insurance is included in the GMP. The failure of the Developer to provide such insurance
shall be considered a material breach of this Agreement. Insurance purchased by the Developer
shall be purchased from a carrier acceptable to CRA.
10.2 Developer shall maintain the coverages for insurance as required by Exhibit"H"
as set forth in this Section 10.2 and thereafter during any and every period when Developer or
any of its Subcontractors are performing any work or furnishing any services pursuant to the
Contract Documents. Upon execution of this Agreement, Developer shall provide or cause to
be provided the workers' compensation insurance, comprehensive general liability insurance,
business automobile insurance, and the umbrella liability insurance policies. Prior to
commencement of the Construction Work, Developer shall provide the commercial general
liability insurance policy.
11. INDEMNITY.
11.1 In consideration of the entry of this Agreement, and to the extent permitted by
Chapter 725, Florida Statutes, as may be amended, the Developer agrees to indemnify, protect,
defend and hold harmless the CRA and the i C ty, their elected officials, officers, employees,
consultants, and agents from liabilities, damages, losses, and costs including, but not limited to
reasonable attorney's fees at both the trial and appellate levels to the extent caused by the
negligence, recklessness, or intentionally wrongful conduct of the Developer and other persons
employed or utilized by the Developer in the performance of the Agreement.
11.2 The indemnification obligation under this clause shall not be limited in any way
by any limitation on the amount or type of damages, compensation, or benefits payable by or
for the Developer or any Subcontractor or Subconsultants under worker's compensation acts,
disability benefit acts, or other employee benefit acts.
11.3 In the event that any claims are brought or actions are filed against the CRA or
the City with respect to the indemnity contained herein, the Developer agrees to defend against
any such claims or actions regardless of whether such claims or actions are rightfully or
wrongfully brought or filed. The Developer agrees that the CRA or the City may select the
attorneys to appear and defend such claims or actions on behalf of the CRA or the City. The
Developer further agrees to pay at the Developer's expense the attorneys' fees and costs
incurred by those attorneys selected by the CRA or the City to appear and defend such claims
28
or actions on behalf of the CRA or the City. The CRA or the City, at its sole option, shall have
the sole authority for the direction of the defense, and shall be the sole judge of the
acceptability of any compromise or settlement of any claims or actions against the CRA or the
City.
11.4 To the extent this indemnification clause or any other indemnification clause in
this Agreement does not comply with Chapter 725, Florida Statutes, as may be amended, this
provision and all aspects of the Contract Documents shall be interpreted as the parties'
intention for the indemnification clauses and Contract Documents to comply with Chapter 725,
Florida Statutes, as may be amended.
12. BONDS.
12.1 Pursuant to and in accordance with Section 255.05, Florida Statutes, the
Developer shall obtain and thereafter at all times during the performance of the Construction
Work maintain a separate performance bond and labor and material payment bond for the
Construction Work (collectively referred to herein as the "Bonds") each in an amount equal to
one hundred percent (100%) of the GMP and each in the form attached to this Agreement as
Exhibits "I-l" and "I-2" or in other form satisfactory to CRA. The surety providing such
Bonds must be licensed, authorized and admitted to do business in the State of Florida and
must be listed in the Federal Register (Dept. of Treasury, Circular 570). The cost of the
premiums for such Bonds is included in the GMP. Within ten (10) days of issuance, Developer
shall record all bonds required by the Agreement in the Department of Public Records of
Broward County.
12.2 Prior to performing any portion of the Construction Work, the Developer shall
deliver to CRA the Bonds required to be provided by Developer as set forth in Section 12.1.
13. INDEPENDENT CONTRACTOR. In performing its obligations under this
Agreement, the Developer shall be deemed an independent contractor and not an agent or
employee of the CRA or the City. The Developer shall be solely responsible for and have
control over construction means, methods, techniques, sequences and procedures and for
coordinating all portions of the Work under this Agreement, unless the Contract Documents
give other specific instructions concerning these matters.
14. INSPECTIONS AND AUDIT.
14.1 The Developer represents that it has inspected the Garage Property and has
satisfied itself as to the condition of the Garage Property and that the GMP is just and
reasonable compensation for all Work, including all foreseen or foreseeable risks, hazards, and
difficulties in connection with the Work.
14.2 City and the Design Consultant at all times shall have access to the Work for
inspection of the Work, but shall not be obligated to conduct any such inspection. The
Developer shall provide proper and safe facilities for such access and inspection by CRA and
29
the Design Consultant. If any of the Work is required to be inspected or approved by any
public authority, the Developer shall cause such inspection or approval to be performed.
14.3 No inspection performed or failed to be performed by CRA, the Design
Consultant, or both shall be a waiver of any of the Developer's obligations or be construed as
an approval or acceptance by CRA of the Work or any part of the Work.
14.4 To ascertain if the Scope of Work as detailed under this Agreement has been
performed, CRA shall have access to the Work and the right to audit all of the Developer's
major Subcontractor's and major Subconsultant's books records corres
pondence,ondence instructions,J , tru bons
i P ,
drawings, receipts, payment records, vouchers and memoranda relating to the Work, and the
Developer and all major Subcontractors and major Subconsultants shall preserve all such
records and supporting documentation for a period of three (3) years after the Final Payment.
The Developer further grants to CRA the authority to enter its premises for the purpose of
inspection of such records and supporting documentation or, at the Developer's option,
Developer may make such records and supporting documentation available to CRA at a
location satisfactory to CRA. For purposes of this Agreement, a major Subcontractor or major
Subconsultant is a Subcontractor or Subconsultant that performs more than ten percent (10%)
of the Design Services or Construction Work as applicable.
15. AS-BUILT PLANS AND SPECIFICATIONS. Concurrent with the Final Request
for Payment and upon the completion of each component of the Project, the Developer shall
furnish final as-built Plans and Specifications including surveys, to the CRA in a format
acceptable to the CRA, showing the exact locations of all structures and water, sewer, gas, fuel,
telephone, security, and electric lines and mains and of all easements for such utilities then
existing. Such as-built Plans and Specifications and surveys shall be prepared by, as
applicable, a licensed architect or surveyor who shall certify that the Work is installed and
erected entirely upon the Garage Property and within the building restriction lines, if any, and
does not overhang or encroach upon any easement or right-of-way of others.
16. NO LIENS.
16.1 Developer acknowledges and agrees that the City Property is owned by the City
and is excluded from the definition of"real property" upon which liens may be placed as set
forth in Section 713.01(24), Florida Statues. Developer further acknowledges and agrees that
the Work to be performed under this Agreement is for the construction of, among other things,
a public building, and that the Developer shall comply with the requirements of Section 255.05,
Florida Statues, including but not limited to,the provision of bonds and payment of claims. The
Developer waives, releases, and relinquishes any right to claim or file a mechanic's or
materialmen's lien against the Work or any portion of the Work, the Garage Property or the
City including, but not limited to, any rights the Developer may have under Chapter 713,
Florida Statutes. This waiver and relinquishment of Developer's rights to claim a mechanic's
lien is made for good and valuable consideration and in recognition that City would not enter
into this Agreement without such waiver and relinquishment. The Developer shall, if the
Project is subject to the foregoing conditions, include a provision substantially similar to this
Section 16.1 in each ,of its Subcontractor contracts and purchase orders, requiring
30
Subcontractors, materialmen, vendors and suppliers to waive any claim or entitlement to a
mechanic's or materialmen's lien on the Garage Property and to look solely to the credit of the
Developer or its surety for payment of any sums due on the Project.
16.2 The Developer shall not voluntarily permit any laborer's, materialmen's,
mechanic's, or other similar lien to be filed or otherwise imposed on any part of the Work or
the City's Property. If any laborer's, materialmen's, mechanic's, or other similar lien or claim
is filed and if the Developer does not cause such lien to be released and discharged, or file a
bond in lieu of such lien, City or the CRA shall have the right to pay all sums necessary to
obtain such release and discharge and deduct all amounts so paid from the next payment due
the Developer under this Agreement. If any such lien is filed or otherwise imposed, at the
request of City, the Developer shall cause such lien to be released and otherwise discharged.
The Developer indemnifies and holds harmless City and the CRA from all claims, losses,
demands, causes of action, expenses including attorneys' fees, or suits of whatever nature
arising out of any such lien.
17. TITLE TO WORK. Immediately upon delivery and payment by the CRA to
Developer or supplier, as applicable, of Materials to the Garage Property or the performance of
any part of the Work, as between the Developer and City, title shall vest in City (subject to the
Ground Lease, if applicable), unless stated otherwise in this Agreement; provided, however, the
vesting of such title shall not impose any obligations on City or relieve the Developer from any
of its obligations under this Agreement.
18. WORK IN PROGRESS. The Developer shall protect and prevent damage to all
phases of the Work, and any existing facilities or improvements, including but not limited to
the protection of the Work from damage by the elements, theft, or vandalism. During the
course of the Construction Work, the Developer shall remain responsible for the risk of loss of
the Work and shall promptly remedy, repair and replace all damage and loss (other than
damage or loss insured under insurance required by the Contract Documents) to the Work
caused in whole or in part by the Developer, a Subcontractor, or anyone directly or indirectly
employed or controlled by any of them, or by anyone for whose acts they may be liable and for
which the Developer is responsible, except to the extent such damage or loss is attributable to
the negligence of the CRA or anyone directly or indirectly employed by the CRA, or by anyone
for whose acts the CRA may be liable, and not attributable to the fault or negligence of the
Developer.
19. HAZARDOUS SUBSTANCES.
19.1 The Developer agrees that it shall not transport to, use, generate, dispose of, or
install at the Garage Property any Hazardous Substance, as defined in Section 19.4, except in
accordance with applicable Environmental Laws. Further, in performing the Work, the
Developer shall not cause any release of hazardous substances into, or contamination of, the
environment, including the soil, the atmosphere, any watercourse or ground water, except in
accordance with applicable Environmental Laws. In the event the Developer engages in any of
the activities prohibited in this Section 19.1, to the fullest extent permitted by law, the
Developer indemnifies and holds harmless the CRA and the City and their officers, agents and
31
employees from and against any and all claims, damages, losses, causes of action, suits and
liabilities of every kind, including but not limited to expenses of litigation, court costs, punitive
damages and attorneys' fees, arising out of, incidental to or resulting from the activities
prohibited in this Section 19.1 (collectively "Environmental Claims"); provided, however, the
Developer shall not be responsible for any Environmental Claims arising from Hazardous
Substances existing at the Garage Property as of the date of this Agreement except to the extent
the Environmental Claims result from the acts or omissions of Developer or Developer's failure
to comply with the requirements of Section 19.1 and 19.2.
19.2 In the event the Developer encounters on the Garage Property any Hazardous
Substance, or what the Developer reasonably believes to be a Hazardous Substance, and which
is being introduced to the Work, or exists on the Garage Property, in a manner violative of any
applicable Environmental Laws, the Developer shall immediately stop Work in the area
affected and report the condition to City in writing. The Work in the affected area shall not
thereafter be resumed except by written authorization of CRA if in fact a Hazardous Substance
has been encountered and has not been rendered harmless. In the event the Developer fails to
stop the work upon encountering a Hazardous Substance at the Project, to the fullest extent
permitted by law, the Developer indemnifies and holds harmless the CRA and the City and
their officers, agents and employees from and against all claims, damages, losses, causes of
action, suits and liabilities of every kind, including, but not limited to, expenses of litigation,
court costs, punitive damages and attorneys' fees, arising out of, incidental to, or resulting from
the Developer's failure to stop the Work.
19.3 An extension of time plus payment of reasonable itemized general conditions
including demobilization costs shall be the Developer's sole remedy for any delay arising out
of the encountering or rendering harmless of any Hazardous Substance at the Garage Property.
CRA and the Developer may enter into an agreement for the Developer to remediate or render
harmless the Hazardous Substance, but the Developer shall not be required to remediate or
render harmless the Hazardous Substance absent such agreement. Developer shall not be
required to resume work in any area affected by the Hazardous Substance until such time as the
Hazardous Substance has been remediated or rendered harmless.
19.4 For purposes of this Agreement, the term "Hazardous Substance" shall mean
and include, but shall not be limited to, any element, constituent, chemical, substance,
compound, or mixture, which are defined in or included under or regulated by any local, state,
or federal law, rule, ordinance, by-law, or regulation pertaining to environmental regulation,
contamination, clean-up or disclosure, including, without limitation, The Comprehensive
Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), The
Resource Conservation and Recovery Act ("RCRA"), The Toxic Substances Control Act
("TSCA"), The Clean Water Act ("CWA"), The Clean Air Act ("CAA"), and The Marine
Protection Research and Sanctuaries Act ("MPRSA"), The Occupational Safety and Health Act
("OSHA"), The Superfund Amendments and Reauthorization Act of 1986 ("SARA"), Chapters
161, 253, 373, 376 and 403, Florida Statutes, the rules and regulations of the Florida
Department of Environmental Protection, or other state superlien or environmental clean-up or
disclosure statutes including all state and local counterparts of such laws (all such laws, rules
and regulations being referred to collectively as "Environmental Laws"). It is the Developer's
32
responsibility to comply with this Article 19 based on the law in effect at the time its services
are rendered and to comply with any amendments to those laws for all services rendered after
the effective date of any such amendments.
20. COMPLIANCE WITH LAWS.
20.1 The Developer shall notify the CRA and the City in writing of all conflicts
between the Contract Documents and any laws, ordinances, rules, regulations and restrictions
that come to the attention of the Developer or should have come to the Developer's attention
with the exercise of due care. If the Developer performs any of the Work knowing, or when
with the exercise of due care the Developer should have known, it to be contrary to any such
laws, ordinances, rules, regulations or restrictions and fails to give the CRA and the City
written notice of noncompliance prior to performance, the Developer shall bear all related
costs, liabilities, and expenses arising from such noncompliance including reasonable
attorney's fees and costs.
20.2 The Developer, at its sole cost, shall obtain all necessary licenses, building and
other permits, and similar authorizations from governmental authorities required or necessary
to perform its obligations under this Agreement, and shall give all notices required by, and
otherwise comply with,all applicable laws, ordinances,rules, regulations and restrictions.
<20.3 The Developer agrees that all of the Developer's Services and the Work shall
comply with all applicable laws, statutes, ordinances, codes, executive orders, rules, regulations
including without limitation, those adopted by the CRA and the City, all Environmental Laws
as defined in Section 19.4, and the federal and State of Florida "Right to Know" laws related to
Hazardous Substances in the workplace.
21. PERSONNEL.
21.1 All personnel used or employed by the Developer in the performance of the
Work shall to the best of Developer's knowledge be qualified by training and experience to
perform their assigned tasks. At the request of the CRA or the City, the Developer shall not use
in the performance of the Work any personnel deemed by the CRA or the City to be
incompetent, careless or unqualified to perform the work assigned to him, or otherwise
unsatisfactory to the CRA or the City.
21.2 The Developer agrees that in the performance of the Work called for by this
Agreement, it will employ only such labor, and engage Subconsultants and Subcontractors that
employ only such labor, as will not delay or interfere with the speedy and lawful progress of
the Project, and as will be acceptable to and work in harmony with all other workmen
employed on the Garage Property or on any other building, structure, or other improvement
which the Developer or any other Developer may then be erecting or altering on behalf of the
CRA or the City. The Developer agrees that it shall not employ any labor that will interfere
with labor harmony at the Garage Property or with the introduction and storage of materials
and the execution of work by other Subconsultants and Subcontractors. In the event of a strike
or stoppage of work resulting from a dispute involving or affecting the labor employed by the
33
Developer or any of its Subcontractors, the CRA or the City may, at its option and without
demand, terminate this Agreement for default unless the Developer shall remedy the strike or
work stoppage or other disruption within ten(10) calendar days after the dispute arises.
21.3 Developer shall furnish the CRA and the City, on request, resumes of
Developer's key personnel involved in the day-to-day Work on the Project.
21.4 Developer in performance of the Work under this Agreement shall comply with
the terms and conditions of the City's Prevailing Wage Ordinance a copy of which is attached
as Exhibit' 'to this Agreement.
22. SAFETY AND PROTECTION.
22.1 Developer shall be solely responsible for initiating, maintaining and supervising
all safetyprecautions
p sand programs in connection with the Work. Developer shall take all
necessary precautions for the safety of, and shall provide the necessary protection to prevent
damage, injury or loss to:
22.1.1 all persons on Garage Property or who may be affected by the
construction;
22.1.2 all Work and Materials and equipment to be incorporated in the Work,
whether in storage on or off the Garage Property; and
22.1.3 other property at the Garage Property or adjacent to the Garage Property,
including trees, shrubs, lawns, walks, pavements, roadway, structures, utilities and underground
facilities not designated for removal, relocation or replacement in the course of construction.
22.2 Developer shall comply with applicable laws and regulations of any public body
having jurisdiction for safety or persons or property to protect them from damage, injury or
loss; and shall erect and maintain all necessary safeguards for such safety and protection.
Developer shall notify owners of adjacent property and of underground facilities and utility
owners when prosecution of the Work may affect them, and shall cooperate with them in the
protection, removal,relocation and replacement of property. All damage, injury or loss to any
property caused, directly or indirectly, in whole or in part, by Developer, any Subcontractor,
materialman, supplier, vendor, or any other individual or entity directly or indirectly employed
by any of them to perform or furnish any of the Work or anyone for whose acts any of them
may be liable, shall be remedied by Developer. Developer's duties and responsibilities for
safety and for protection of the construction shall continue until such time as all the Work is
completed and City has issued a notice to Developer that the Work is acceptable (except as
otherwise expressly provided in connection with Substantial Completion in Section 6.2).
22.3 Safety Representative. Developer shall designate a qualified and experienced
safety representative at the Garage Property whose duties and responsibilities shall be the
prevention of accidents and the maintaining and supervising of safety precautions and
programs.
34
22.4 Hazard Communication Programs. Developer shall be responsible for
coordinating any exchange of material safety data sheets or other hazard communication
information required to be made available to or exchanged between or among employers at the
site in accordance with laws or regulations.
22.5 Emergencies. In emergencies affecting the safety or protection of persons or
the construction or property at the Garage Property or adjacent to the Garage Property,
Developer, without special instruction or authorization from the CRA, is obligated to act to
prevent threatened damage,injury or loss. Developer shall give City prompt written notice if
Developer believes that any significant changes in the construction or variation from the
Contract Documents have been caused. If a change in the Contract Documents is required
because of the action taken by Developer in response to such an emergency, a Change Order
will be issued to document the consequences of such action.
22.6 Trench Safety Form. Developer shall execute and deliver to the City prior to
commencement of the Construction Work under this Agreement, the Trench Safety Form
attached as Exhibit"K"to this Agreement.
23. USE OF SITE AND OTHER AREAS.
23.1 Developer shall confine construction equipment, the storage of materials and
equipment and the operations of construction workers to those lands and areas permitted by the
CRA and the City and other land and area permitted by laws and regulations, rights-of-way,
permits and easements, and shall not unreasonably encumber any such land or areas with
construction equipment or other materials or equipment. Developer shall assume full
responsibility for any damage to any such land or area, or to the owner or occupant or any
adjacent land or areas, resulting from the performance of the construction. Should any claim be
made by any such owner or occupant because of the performance of the Work, Developer shall
promptly settle with such other party by negotiation or otherwise resolve the claim by
arbitration or other dispute resolution proceedings or at law. Developer shall, to the fullest
extent permitted by law and regulations, indemnify and hold harmless the CRA and the City,
their consultants and anyone directly or indirectly employed by any of them from and against
all claims, costs, losses and damages (including, but not limited to, fees of engineers, architects,
attorneys and other professionals and court and arbitration or other dispute resolution costs)
arising out of or resulting from any claim or action, legal or equitable, brought by any such
owner or occupant against the CRA or the City, or any other party indemnified under this
Agreement to the extent caused by or based on Developer's, or its Subconsultant's or
Subcontractor's performance of the construction.
23.2 During the performance of the Work, Developer shall keep the Garage Property
free from accumulations of waste materials, rubbish and other debris resulting from the
construction. At the completion of the construction Developer shall remove all waste
materials, rubbish and debris from and about the premises as well as all tools, appliances,
construction equipment, temporary construction and machinery and surplus materials.
Developer shall leave the Garage Property clean and ready for occupancy by the CRA and the
35
City at Substantial Completion. Developer shall restore to original condition all property not
designated for alteration by the Contract Documents.
23.3 Developer shall not load nor permit any part of any structure to be loaded in any
manner that will endanger the structure, nor shall Developer subject any part of the Work or
adjacent property to stresses or pressures that will endanger it.
24. RELATED CONSTRUCTION AT SITE.
24.1 City may perform other work related to the Project at the Garage Property by
City's own forces, or let other direct contracts or have other work performed by utility owners.
If the fact that such other work is to be performed was not noted in the Contract Documents
then (a) written notice will be given to Developer prior to starting any such other work and (b)
Developer may make a request for a Change Order as provided in Section 7 if Developer
believes that such performance will involve additional time and the parties are unable to agree
as to the amount or extent of additional time.
24.2 Developer shall afford each other contractor who is a party to such a direct
contract with Cityand each utilit
y owner (and City, if City is performing the additional work rk
with its ees em to proper and safe access to the Garage Property employees) p P g p Y and a reasonable
opportunity for the introduction and storage of materials and equipment and the execution of
such other work and shall properly connect and coordinate the construction with theirs. Such
contractors and utility owners shall be required to comply with Developer's rules and
regulations applicable to the Garage Property including without limitation all safety
requirements. Unless otherwise provided in the Contract Documents, Developer shall do all
cutting, fitting, and patching of the Work that may be required to make its several parts come
together properly and integrate with such other work. Developer shall not endanger any work
of others by cutting, excavating or otherwise altering their work and will only cut or alter their
work with the written consent of City and the others whose work will be affected. The duties
and responsibilities of Developer under this Section 24 are for the benefit of such utility
owners and other contractors to the extent that there are comparable provisions for the benefit
of Developer in the direct contracts between City and such utility owners and other
contractors.
24.3 If the proper execution or results of any part of Developer's Work depends upon
work performed or services provided by others under this Section 24, Developer shall inspect
such other work and appropriate instruments of service and promptly report to the CRA and the
City in writing any delays, defects or deficiencies in such other work or services that render it
unavailable or unsuitable for the proper execution and results of Developer's Work.
Developer's failure so to report will constitute an acceptance of such other work as fit and
proper for integration with Developer's Work except for latent or nonapparent defects and
deficiencies in such other work.
24.4 Coordination. If the City contracts with others for the performance of other
work on the Project at the Garage Property, the following information will be provided in
writing to Developer prior to the commencement of such work:
36
24.4.1 the individual or entity who will have authority and responsibility for
coordination of the activities among the various prime contractors will be identified;
24.4.2 notice that the Developer shall be entitled to direct times for performance
of any work at the Garage Property within its reasonable discretion;
24.4.3 the specific matters to be covered by such authority and responsibility
will be itemized; and
24.4.4 the extent of such authority and responsibilities will be provided.
25. DEVELOPER'S WARRANTIES. The Developer represents and warrants to the
CRA and the City:
25.1 That it is financially solvent, able to pay its debts as they mature, and is
possessed of sufficient working capital to perform this Agreement; that it is able to furnish the
Materials, and Services; that it is experienced in and competent to perform the Work
contemplated by this Agreement; and that it is qualified to do the Work as described in this
Agreement and is authorized to do business in the state in which the Project is located.
25.2 That the Developer holds a license, permit or other special license to perform the
services included in this Agreement, as required by law, or employs or works under the general
supervision of the holder of such license,permit or special license.
25.3 That the Work shall be constructed in a good and workmanlike manner, free
from defects, and in strict compliance with the Contract Documents.
26. DEFECTS.
26.1 The Developer shall at its sole cost (a) replace any parts of the Work that fail to
conform with the requirements of this Agreement that appear during progress of the Work on
the Project; (b) remedy any defects in the Work due to faulty materials or workmanship which
appear within a period of one (1) year from the time of Final Completion of the Work under
this Agreement or within such longer period of time as may be set forth in the Plans,
Specifications, and Addenda or other Contract Documents or as may be required by law; and
(c) replace, repair or restore any parts of the Project or furniture, fixtures, equipment or other
items placed in the Work (whether by the CRA, the City or any other party) that are injured or
damaged by any such parts of the work that do not conform to the requirements of this
Agreement or are due to defects in the work. The provisions of this Article 26 apply to work
performed by Subcontractors as well as work performed directly by employees of the
Developer. In addition to the Developer's responsibility to make repairs or redo work under
this Article 26, the Developer shall also be responsible to the CRA and the City for any
damages suffered by the CRA or the City as a result of the defects, provided however the
Developer will not be liable for any consequential damages suffered by the CRA or the City.
The Developer shall commence any work required under this Article 26 promptly after notice
37
from the CRA or the City and shall diligently complete such work in a good and workmanlike
manner in compliance with the terms of this Agreement applicable to the work generally.
26.2 If the CRA, the City and the Developer deem it inexpedient to require the
correction of Work damaged or not performed in accordance with the Contract Documents, an
equitable deduction from the GMP shall be made by agreement between the Developer and the
CRA. If the CRA and the Developer fail to reach a settlement or the Developer fails to perform
P p
and is not protected by surety (or the surety fails to perform), CRA retains the right to perform
the Work after seven (7) days written notice to the Developer or surety. CRA may withhold the
cost of the Work as deemed just and reasonable from monies, if any, due the Developer. If no
monies are held by CRA, reimbursement shall be made to CRA within thirty (30) days by the
Developer.
26.3 The Developer's express warranty as described in this Agreement shall be in
addition to, and not in lieu of, any other warranties or remedies CRA may have under this
Agreement, at law, or in equity for defective Work.
26.4 If CRA elects to perform the work described in this Article 26, this shall not
void or otherwise impair the Bonds required by this Agreement. If CRA elects to enforce the
Bonds, the surety shall cause the work to be commenced within seven (7) days after notice
from CRA and diligently completed thereafter in a good and workmanlike manner in
accordance with the terms of this Agreement applicable to the Work generally.
27. SIGNAGE. Except for safety signage required by applicable laws which shall be
installed in compliance with applicable laws, all construction signage, including, but not
limited to that appearing on cranes and other construction equipment located at the Garage
Property, shall be subject to the prior written approval of CRA. The Developer recognizes that
all signage (except safety signage required by applicable laws) may be disallowed, in CRA's
sole discretion, and that existing signage or advertising on construction equipment, field
offices, trailers, construction fences, etc., may be required to be masked or deleted, all at no
cost or expense to CRA. Notwithstanding the foregoing, the parties intend to erect a Project
sign identifying the CRA, the City, Developer and key participants in the Project. Such Project
sign shall be installed in compliance with the City's sign ordinance.
28. PRESS RELEASES. The Developer shall coordinate any public announcement or
publicity releases relating to the Project through the City Manager's office. The Developer
shall also require Subconsultants, Subcontractors, materialmen, suppliers, and vendors to
comply with this requirement.
29. OWNERSHIP OF CONTRACT DOCUMENTS. All Plans, Specifications, Detail
Drawings and other Drawings prepared in connection with the Project, upon payment by CRA
to Developer, shall be and remain the property of CRA and are not to be used by the Developer
on any other project and shall be relinquished to CRA at Final Completion or sooner if
otherwise required by this Agreement, provided, however, that the Developer may maintain
one record set of As-Built drawings. Such Plans and Specifications shall be provided to CRA
with an authorization in a form and substance acceptable to CRA from the applicable
38
Subconsultants authorizing the CRA and its architects and engineers to use the Plans and
Specifications and related documents for the Project.
30. REPRESENTATIVES.
30.1 The name of the party who is to be the "CRA's Representative" is shown in the
Development Summary unless and until CRA notifies the Developer in writing that another
individual shall be CRA's Representative. CRA's Representative is authorized to recommend
approval of Change Orders and increases in the GMP, but Change Orders and increases in the
GMP shall be binding on CRA only if signed by the Executive Director of the CRA.
30.2 The name of the party who is to be the "Developer's Representative" is shown
in the Development Summary. Unless a corporate officer of the Developer advises CRA and
the Design Consultant, in writing, of any limitations on the authority of Developer's
Representative, Developer's Representative shall have full authority to execute any and all
instruments requiring the Developer's signature and to act on behalf of the Developer with
respect to all matters arising out of this Agreement.
31. ASSIGNMENT. The Developer shall not assign this Agreement or sublet it as a
whole without the written consent of CRA, which consent may be withheld or conditioned by
the CRA in its sole discretion; nor shall the Developer assign any monies due or to become due
to it under this Agreement, without the previous written consent of CRA, which consent may
be withheld or conditioned by the CRA in its sole discretion. Subject to the foregoing, this
Agreement shall inure to the benefit of and be binding on the parties to this Agreement and
their respective successors and assigns.
32. NONDISCRIMINATION. The Developer agrees that it will not knowingly violate
any applicable laws or regulations prohibiting discrimination in employment in the
performance of its work under this Agreement.
33. WAIVER. No consent or waiver, express or implied, by either party to this
Agreement to or of any breach or default by the other in the performance of any obligations
under this Agreement shall be deemed or construed to be a consent or waiver to or of any other
or future breach or default by such party under this Agreement. Failure on the part of any party
to this Agreement to complain of any act or failure to act of the other party or to declare the
other party in default under this Agreement, irrespective of how long such failure continues,
shall not constitute a waiver of the rights of such party under this Agreement. Inspection by,
payment by, or tentative approval or acceptance by CRA, or the failure of CRA to perform any
inspection under this Agreement, shall not constitute a final acceptance of the Work or any part
of the Work and shall not release the Developer from any of its obligations under this
Agreement.
34. CONSTRUCTION OF TERMS; CONFLICTS.
34.1 Unless the context clearly intends to the contrary, words singular or plural in
number shall be deemed to include the other and pronouns having a masculine or feminine
39
gender shall be deemed to include the other. The term "person" shall be deemed to include an
individual, corporation, unincorporated organization, partnership, trust, government and
governmental agency or subdivision, as the context shall require.
34.2 The Contract Documents shall be interpreted so as to eliminate inconsistencies
or conflicts, but in the event of any conflict, requirements for greater quantity or more
expensive work shall govern; the terms of this Agreement shall prevail; and anything shown on
the Plans and not mentioned in the Specifications or mentioned in the Specifications and not
shown on the Plans shall have the same effect as if shown or mentioned respectively in both.
35. CAPTIONS. The captions used for the Sections in this Agreement are inserted only as
a matter of convenience and for reference and in no way define, limit or describe the scope of
the intent of this Agreement or any Section of this Agreement.
36. ENTIRE AGREEMENT; SEVERABILITY; AMENDMENTS. The Contract
Documents constitute the entire agreement between the parties to this Agreement with respect
to the matters covered by this Agreement. All prior negotiations, representations and
agreements with respect to this Agreement not incorporated in such Contract Documents are
canceled. This Agreement can be modified or amended only by a document duly executed on
behalf of the parties to this Agreement. In the event any provision of the Contract Documents
shall be determined to be illegal, invalid or otherwise unenforceable, the remainder of this
Agreement shall not be affected and each remaining provision, term, covenant or condition of
the Contract Documents shall be enforced to the fullest extent permitted by law.
37. TERMINATION.
37.1 The City and the CRA shall have the right at any time, on not less than seven (7)
days prior written notice to the Developer, to terminate this Agreement without cause or for the
City or the CRA's convenience including, but not limited to termination in the event that (a)the
Project is abandoned by the CRA or the City; or the City Commission or CRA Board
terminates, suspends or modifies the Project. Upon receipt by the Developer of such notice of
termination (the "Date of Termination"), the Developer shall immediately discontinue the
Work and remove its equipment and employees from the Garage Property. In the event of
termination under this Section 37.1, the Developer shall have the right, as its sole and exclusive
remedy, to recover from City payment of the Contract Sum for Work performed up to the Date
of Termination (less any payment made to the Developer by the CRA), but not in excess of the
GMP. In addition, without terminating this Agreement as a whole, the CRA may, for
convenience, terminate a portion of this Agreement (by reducing, in such manner as CRA
deems appropriate, the scope of the Work to be performed by the Developer). In which event
such termination of a portion of this Agreement shall be treated as a reduction in the scope of
the Work, to which an equitable reduction shall be made to Contract Sum.
37.2 In addition to the City and the CRA's right to terminate this Agreement for
default under the terms of Section 21.2 and elsewhere in this Agreement, if the Developer shall
fail to commence the Work in accordance with the provisions of this Agreement, fail to
perform the Work or portions of the Work to completion in a diligent, efficient, workmanlike,
40
skillful and careful manner and in strict accordance with the provisions of the Contract
Documents, fail to use an adequate quantity or quality of personnel, equipment, or material to
complete the Work within the Contract Time, fail to perform any of its obligations under the
Contract Documents, be adjudged a bankrupt, make a general assignment for the benefit of its
creditors, permit a receiver to be appointed on account of its insolvency, otherwise insolvent, or
fail to make prompt payments to its Subcontractors, materialmen or laborers, the City or the
CRA shall provide the Developer with written notice, stating the nature of the default
complained of. If Developer does not cure such default within thirty (30) days after receipt of
such notice (or such longer period agreed to by the parties if the nature of the default is such
that it cannot be cured within thirty [30] days and Developer has commenced and is diligently
proceeding to cure within the original thirty [30] day period), the City or the CRA shall have
the right, on forty-eight(48) hours written notice to the Developer to terminate this Agreement.
In the event of termination under this Section 37.2, the City or the CRA shall notify the
Developer's surety, and the Developer's surety shall take over and perform this Agreement.
The Developer's surety shall continue to perform, on at least an interim basis, until such time as
it makes other satisfactory arrangements for completion pursuant to the Bond obligations. If
the Developer's surety does not commence performance with adequate quantity and quality of
personnel, equipment, and material to maintain the Contract Time, within five (5) days from
the date of receipt of such notice of termination, the City or the CRA may, without further
notice to the Developer or its surety, take possession of and use, without any rental obligation
to the Developer or any third party, all or any part of the Developer's Materials and other
property of every kind used by the Developer in the performance of the Work and use such
property in the completion of the Work, and complete the Work with its own forces or by
engaging the services of other parties. Any such act by the City or the CRA shall not be
deemed a waiver of any other right or remedy of the City or the CRA under this Agreement,the
Bonds or otherwise. If after exercising any such remedy the cost to the CRA or the City of the
performance of the balance of the Work is in excess of that part of the GMP which has not
previously been paid to the Developer under this Agreement, the Developer and the
Developer's surety shall be liable for and shall reimburse the City or the CRA for such excess
costs and all delay and damages suffered by the City or the CRA as a result. If after
termination of this Agreement under this Section 37.2, it is determined that the Developer was
not in default or that sufficient cause to terminate under Section 37.2 did not exist, the rights
and obligations of the parties shall be the same as if the termination had been issued for the
convenience of the City or the CRA under Section 37.1, and that the Developer agreed to the
City or the CRA's use of its materials and other property, in which case the Developer shall be
entitled to be paid a reasonable sum for the City or the CRA's use of the Developer's Materials
or other property of the Developer
37.3 If the City or the CRA fails to perform any of its obligations under this
Agreement, the Developer shall have the right to give City and the CRA written notice, stating
the nature of the default complained of. If the City or the CRA does not cure such default
within thirty (30) days after receipt of such notice (or such longer period agreed to by the
parties if the nature of the default is such that it cannot be cured within thirty [30] days and the
City or the CRA has commenced and is diligently proceeding to cure within the original thirty
[30] day period), the Developer shall have the right, on seventy-two (72) hours written notice to
41
the City and the CRA to terminate this Agreement. The Developer shall have the right to
terminate this Agreement upon thirty (30) days written notice if the Work is suspended for a
period of ninety (90) consecutive days or more due to causes not the fault of the Developer.
37.4 The City or the CRA may, if the Developer neglects to perform the Work
properly or to perform any provision of the Contract Documents, or does, or omits to do,
anything where safety or proper construction may be endangered or where damage or injury
may result to person or property, after forty-eight (48) hours written notice to the Developer,
without prejudice to any other remedy the City or the CRA may have, make good all Work,
material, omissions or deficiencies, and may deduct the cost from the amount included in the
Contract Sum due or which may thereafter become due the Developer, but no action taken by
the City or the CRA under this Agreement shall affect any of the other rights or remedies of the
City or the CRA granted by this Agreement or by law relieve the Developer or the Developer's
surety from any consequences or liabilities arising from such acts or omissions.
37.5 The rights and remedies of the City and the CRA under this Section 37 shall be
non-exclusive, and shall be in addition to all the other remedies available to the City and the
CRA at law or in equity.
38. DISPUTE RESOLUTION.
38.1 This Agreement shall be governed by the laws of the State of Florida and the
applicable laws of the United States of America. Any proceeding seeking to enforce any
provision of, or based on any rights arising out of, this Agreement may be brought against any
of the parties in the courts of the State of Florida, County of Broward, or if it has or can acquire
jurisdiction in the United States District Court of the Southern District of Florida and each of
the parties consents to the jurisdiction of such courts (and of the appropriate appellate courts) in
any such action. THE PARTIES WAIVE ANY RIGHTS TO A JURY TRIAL OR
PROCEEDING AND WAIVE ANY OBJECTION TO VENUE, PROVIDED, HOWEVER,
THAT SUCH VENUE SHALL BE CONSISTENT WITH THE REQUIREMENTS OF
SECTION 47.025, FLORIDA STATUTES.
38.2 Pending resolution of any dispute arising under this Agreement, other than
termination of this Agreement, the Developer shall diligently proceed with performance of this
Agreement and CRA shall continue to make payments in accordance with the Contract
Documents, except for performance and payment related to the disputed matter.
39. NOTICES. All notices to be given under this Agreement shall be in writing, and
shall be given, served, or made by facsimile transmission followed by one of the following
methods: a depositing the same in the United States Mail addressed to the to be
( ) P g party
notified, postpaid and first class mail, (b) by nationally recognized overnight courier service
such as Federal Express or United Parcel Service, or (c) by delivering the same in person to
such party. Notices of an alleged default or any termination of this Agreement shall be hand-
delivered or sent by certified mail, return receipt requested, postpaid, to the recipient party.
Notice given in any other manner shall be effective only if and when received by the party to be
notified. All notices to be given to the parties to this Agreement shall be sent to or made to the
42
addresses shown in Section 41 below. By giving the other party at least fifteen (15) days
written notice, the parties to this Agreement shall have the right to change their respective
addresses and specify as its address for the purposes of this Agreement any other address in the
United States of America.
40. COUNTERPARTS. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which together shall constitute one and the
same instrument.
41. ADDRESSES. All invoices, contracts, copies of notices and other
correspondence should be addressed to the City, the CRA and the Developer as follows:
If to the City:
Robert Baldwin, City Manager
City of Dania Beach
100 West Dania Beach Boulevard
Dania Beach, Florida 33004
Fax No.: (954) 921-2604
With a copy to:
Tom Ansbro,Esq.
100 West Dania Beach Boulevard
Dania Beach, Florida 33004
Fax No. (954) 921-2604
If to CRA:
Jeremy Earle, ASLA, AICP
Executive Director
100 West Dania Beach Boulevard
Dania Beach, Florida 33004
Fax No.: (954) 921-2604
With a copy to:
Weiss Serota Helfrnan Pastoriza Cole & Boniske, P.L.
Attn: Jamie A. Cole, Esq.
200 E Broward Blvd.
Suite 1900
Fort Lauderdale, FL 33301
Fax No. (954) 764-7770
43
If to Developer:
Downtown Dania Beach Development LLC
Attn: Hank Thomas
3001 W. Hallandale Beach Blvd.
Hallandale Beach, Florida 33009
Fax No. (954)_-
With a copy to:
Anthony T. Lepore, Esq., P.A.
P.O. Box 823662
South Florida, FL 33082-3662
Fax No. (954) 436-6288
[THE REST OF THIS PAGE LEFT INTENTIONALLY BLANK]
44
IN WITNESS WHEREOF, this Agreement is executed as of the date first above set
forth:
DEVELOPER:
DOWNTOWN DANIA BEACH DEVELOPMENT LLC,
a Florida limited liability company
By:
Hank (He Thomas
Mf anager/Me)ber
Dated: 1 f , 2009
CITY:
CITY OF DANIA BEACH,
a Florida municipal corporation
By. -
obert Baldwin, City Manager
r
Dated: r' f , 2009
ATTEST: �°-s FlftsT
g .. �� G
y
Louise Stilson, CMC, City Clerk
Approved as to form and legal sufficiency: d
By: ;
Tom sbro� ity Attorney
45
CRA:
DANIA BEACH COMMUNITY REDEVELOPMENT AGENCY
By: 6�'
Anne Castro, Chairman
Dated: ' L , 2009
ATTEST:
DANIA BEACH
By. err .w
Louise Stilson, Secretary
WEISS 7SERA HELF A PASTORIZA COLE & BONISKE, P.L.
By: -
CRA ttorney
46
EXHIBIT 66
1"
THE CITY PROPERTY
Lots 1 through 9 inclusive, in Block 21, Town of Modelo (now Dania) according to the Plat thereof,
recorded in Plat Book B, Page 49 of the Public Records of Dade County; said lands situate, lying
and being in Broward County, Florida.
PARCEL L That certain parcel of land designated as "Park", bounded on the North by Viking
Court; on the East by Copenhagen Avenue; on the South by Coconut Avenue and on the West by
Dania Avenue, according to the original plat of the Town of Modelo,now Dania, as recorded in Plat
Book B,page 49, Dade County records;
PARCEL 2. That certain parcel of land designated as "Park", bounded on the North by Coconut
Avenue; on the East by Copenhagen Avenue; on the South by Tivoli Court and on the West by
Dania Avenue, according to the original plat of the Town of Modelo, now Dania, as recorded in Plat
Book B,page 49, Dade County records.
G:Wgreements\2009 Agreements and Contracts\Downtown Dania Beach Development Developers Agreement.doc
1
EXHIBIT 462"
THE PHASE 1 LEASED PROPERTY
G:\Agreements\2009 Agreements and Contracts\Downtown Dania Beach Development Developers Agreement.doc
2
COUSINS SURVEYORS & ASSOCIATES, INC. PROJECT NUMBER : 6290-09
3921 SW 47TH AVENUE, SUITE 1011 CLIENT
DAVIE, FLORIDA 33314
CERTIFICATE OF AUTHORIZATION : LS 11 6448 GREENHILL DEVELOPMENT
�f PHONE 954 680-9685 FAX 954 680-0213 COMPANY
LAND DESCRIPTION AND SKETCH
I
0
PARK W
"MAP OF THE TOWN OF MODELO" LOT 10
(P.B. S. PG. 49, D.C.R.) M BLOCK u
s
S.W.
PARK STREET " N 9000'00" F 63.23' s 8 T I
TIVOII COURT-
l
SOU7 -OF-AT LINE
PLAT w
_ NORTH LINE LOT 2 :NORTH LINE-LOT 1
oA o z w
w > 9
i I O O ciwkAj > Q BLOTLOCK
14
3rY< o z �
Q -
O 0 4 ` Z m
Lora o EL Iw Lot 1 5
LOT 2 LOT 2 .4 1 L . SUCK
BLOCK 21 I BLOCK 2t 1 21( R^`20.67' p
A-=4709'23" � C�
A=17.01' R- .33' ;
pI 9 LOr, a=4T09'23"
BLOCK 21 A=3.56'
l OS w 4
� W O, GLoa:LOT iB u
Z ? O to
3
O p
3
V)
SOUTH uNALoT 2 SOUTH UN-LOT 1
S 90' 0 00" W 71.28'
wr 17 LOT 1B LOT 11
CLOCK 21 BLOCK 21 OLM 21
POB 9 L0r v
UTHWT CORNER 1 _ K
LOT 1,BLOCK 21 1
22
'YAP OF THE rOWN
OF NODELO"
(P.R. PG.49.D.C.R.) ;
ADDRESSREVISIONS DATE F8 OWN CXD LAND DESCRIPTION PGGPERIY
Lum OESOgPildl k SKETCH a/1a/a ___- Ay qa DAN14 BEACH CITY CENTER
RnOLe 1Ann 1ra�Pna a si¢Ta1 ay2B/aB _- AV Ric & SKETCH FOR
0.29 ACRE SCALE: 1" = 30,
COMMERCIAL &
OFFICE SITE SHEET 2 OF 2
G:\Agreements\2009 Agreements and Contracts\Downtown Dania Beach Development Developers Agreement.doc
3
COUSINS SURVEYORS & ASSOCIATES, INC. PROJECT NUMBER : 6290-09
3921 S47TH AVENUE, SUITE 1011
DAVI
DAYIE, FLORIDA 3331E CLIENT
CERTIFICATE OF AUTHORIZATION : LB f 6448 GREENHILL DEVELOPMENT
PHONE 954 680-9885 FAX 954 680-0213 COMPANY
LAND DESCRIPTION AND SKETCH
LAND DESCRIPTION:
A PORTION OF LOTS 1 AND 2,BLOCK 21,AND THAT PORTION OF S.W.PARK STREET
(TIVOLI COURT),AND THAT PORTION OF AN UNNUMBERED BLOCK,LABELED PARK,LYING
NORTH OF BLOCK 21 AS SHOWN ON'MAP OF THE TOWN OF MODEL.O',NOW DANIA,
ACCORDING TO THE PLAT THEREOF,AS RECORDED IN PUT BOOK B AT PAGE 49,OF
THE PUBLIC RECORDS OF DADE COUNTY,FLORIDA. BEANO MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
BEGIN AT THE SOUTHEAST CORNER OF SAID LOT 1;
THENCE SOUTH 90'OO'00'WEST ALONG THE SOUTH LINE OF SAID LOTS t AND 2,A
DISTANCE OF 71.28 FEET;
THENCE NORTH 00'00'00"WEST,A DISTANCE OF 17G.00 FEET;
THENCE NORTH 90'DO'00'EAST,A DISTANCE OF 63.23 FEET;
THENCE SOUTH 00'OI'OO'EAST,A DISTANCE OF 101.05 FEET TO A POINT ON A
TANGENT CURVE CONCAVE TO THE NORTHEAST;
THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE,HAVING A RADIUS OF 20.67
FEET.A CENTRAL ANGLE OF 47'09'23"AND AN ARC DISTANCE OF 17.01 FEET TO A
POINT ON A REVERSE CURVE, CONCAVE TO THE SOUTHWEST;
THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE,HAVING A RADIUS OF 4.33
FEET,A CENTRAL ANGLE OF 47'09'23",AND AN ARC DISTANCE OF 3.56 FEET TO A
POINT ON THE EAST UNE OF SAID LOT 1;
THENCE SOUTH 00'01'00"EAST ALONG THE EAST LINE OF SAID LOT 1,AND ALONG
THE WEST RIGHT OF WAY LINE OF(COPENHAGEN AVENUE) S.W.FIRST AVENUE, A
DISTANCE OF 50.62 FEET TO THE POINT OF BEGINNING.
SAID LANDS SITUATE,LYING AND BEING IN THE CITY OF DANIA BEACH,BROWARD
COUNTY,FLORIDA, CONTAINING 1t,214 SQUARE FEET,(0.2574 ACRE)MORE OR LESS.
LEGEND.
CKD CHECKED BY R RADIUS
OWN DRAWN BY A ARC DISTANCE
FB/PG FIELD BOOK AND PATE d CENTRAL ANGLE
POB POND OF BEGINNING
POC POINT OF COMMENCEMENT
P.B. PUT BOOK
6.C.R BRQWARD COUNTY RECORDS
D.C.R. DADE COUNTY RECORDS
UQIES: 1 HEREBY CORNY THAT THE ATTACHED'WAD IIESCRPROM AND SIfETCIP 5
I. NOT VAUB WDMOWT THE SIGNATURE AND THE ORIGINAL RAISED SEAL OF TRUE AND CORRECT TO THE REST OF MY KNOWLEDGE AND BELIEF AS
A FU7WDA LICENSED SURVEYOR AND MAPPER. PREPARED UNDER MY DIRECTION IN AUGUST.20011.1 FURTHER CERTIFY THAT
THIS'LAND OESCIBYNON AND SIRTCM"MEETS THE MINIMUM TECHNICAL
2. LANDS SHOWN HEREON WERE NOT ABSTRACTED MR R m—.OF-TIAY. S ANWRDS FTR MREIRNG IN THE STATE OF FLORIDA ACCORDMG:TO
EASEMEO S.OW OISMW.OR OTHER INSTRUMENTS OF RECORD. CHAPTER 6tG17 Of THE FLORIDA ADMNLSFIATRE COOS.PURSUANT TO
SECNON 472.027,FLORIDA STATUTES.511041E7F TO THE 01,10MICATTONS
3. DATA SHOWN HEREON DOES MDT CONSTITUTE A FIELD SURVEY AS SUCH. NOTED HEREON. ^
4. THE LAND DESCRIPTION SHOWN NOON WAS PREPARED BY THE SURVEYOR.
FOR THE FIRM,BY:- VV�� ..-_�-
5. 'MAP OF STRUM HEREON ARE ASSUMED.THE SOUTH BRIE Of WEST,
21, RICHARD L OOUSINS
'YAP OF GOWN OF YOOEIA',PA.B,P2 IR,D.Wt.BEARS WEST, PROFESSIONAL SURVEYOR AND MAPPER
FUMNI M RESISTRATKIN NO.41"
REVISIONS DATE FB PG NM CKD LAND DESCRIPTION PRO im— SS
LAID DESCRIF"t SKM MA3/m—Av RM OAWA BEACH CITY CENTER
Rtv�LAD oEscwRnN It nEnnl "/DO — AV qa k SKETCH FOR
0.29 ACRE SCALE: N/A
COMMERCIAL &
OFFICE SITE SHEET 1 OF 2
G:\Agreements\2009 Agreements and Contracts\Downtown Dania Beach Development Developers Agreement.doc
4
3911 SIP Arm
�► ,10 C =
# Of Stu° Tit . Lff f LL I ++ Ea
LAND SKETCH
A tv ems It "M s,anm z:, AM T"T or s-M. Fu^ ft
T Md6► GtOii .d,1"00110 00 "tom tW INt 11dM 1W W003.i", UM ,
a
iC+SA1 A"M AT TW r Cw' LOP
I►111a Miff" "to" Low mam Im wow uw (w sW un r. it wu*u
TIC wW VW OF 5,1100 VRAM It.* *W*AGE of %M16 OW Rtr R MW ON !.
TTF.S$9ri lUMW wwiw Va SU04 &so M MI 't MUM of -ft-" Mt., '
T"UM 36FUM @IR•6t~ toot,.A adr3tto" or 3'a"So rar.
T� tFf4Jtti '" `4�1T, t1 Ca�9YF1�t trt #tl.� 6.�f
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LKWAIR
rills w D
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SWWAW 400*OPt
MAK COMM MUM
t vmw anwr vw*a muosm'surf mcmMmou trip Sk.wtor Cb
F. I M tr W'YAllf W TM:;fYfliR AND W OMML AMID?ix.W MEN:Ally OMW lw W f K lY rliRSwi AN OMW AS
M.rf.aeter,GMMMMM NMKOW i►Llf YkTrCk. el@JIIL'l 'elr dOfftl4
16-43M Inn�r
N. ;tM'r pop"141110M 00a OF A Mal"W 1w SWVC
4. Iwo MM ONE I MOM Iffusow,4111E PsurtivEs w TM[Sire 7FB41.
L AK*MMM TK S UK lK OLdit It, COMING;
of k 'ts"
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G:\Agreements\2009 Agreements and Contracts\Downtown Dania Beach Development Developers Agreement.doc
5
COUSINS SURVEYORS do ASSOCIATES. INC. (;ZM NIMW 4 ate
P4 9F'�+4' l am''# Fxk 0-0-13 Ct9WPt8/[
LAND DESMPTION AND SKM
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G:\Agreements\2009 Agreements and Contracts\Downtown Dania Beach Development Developers Agreement.doc
6
EXHIBIT "3"
THE GARAGE PROPERTY
Ct3 6 1 SURVEYORS & ASSOCIATES, INC_ rx�cr a
382F s"FN **tWA. Suitt rr�l ���
r, Ct394
rc�►TfG cr ZAn� : LO 0
ram[ � 4 .r�Ix —aa� . _ A rr
LAW .MIC
4* UD" '1"s,+. ti, a 2"an a . �-I MM 11I..9 MogF>rK+or $e. I FI&W SIT
G 0*11IK"M AT '4W scloolunI, 004WR Of "a 4 Or sk*1110- 2:
TltlEk+'pIt �*WCt10 W r Ao `sat UM v' UN I, 4Cr 4 Or St ^s s
llisFMW CF' 111m, 3 FW!
'Imio[:WPTN 'WRM. i*a—wb I* wft FW 1'0 'I#r: POW CII ;
'D*VM CON1*rwiE. FFIl1W.vwmlbr ycsw, .4 •womuX. or F35.�4 1Ti.{i3;
1000 111 GrMYW VIM. JA.MSTAMICT C" 1 I:,a FWr.
views magnoot R"04T. K rAft" Or &&a r /;
CQ'D~CAST, It WTM �W&17 FK7t
' meow OWWW WAW M CMi1li11+'M VW 16@M rt",
P"Anx WWM CM'MdW S+W' f M;TARX OF wK EfE":
TIMPAW 0"Oft 004**r COM. A bMSTAMYZ CC 43*-FM F ,T,
.. L*M. JI cwPam: or &.0 mwTi
r10dr71-W'Noto, LOM. A.:ilSitiii x of WM ir�.afE
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t" M t a1 t"1P'!x'u1d': L"I' A 1 sMoxr' or p" ny'NI
1mmct.maw"ELM" CISM,. A W A7,,,1:rr FmE
Z 00"Or*V D6"° E#M- ti 69MAM or I zLw ri 7M`
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a 1!LAT 903K
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A INMMlA Llmrmr swr 1s FMIM<AaM ICMIMII'W tnM Mar ar ii+ AW
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1 OF 3 f
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COUSINS SURVEYORS & ASSOCIATES. F
M I .5W 47M A00+1 . 31U3E 101 1
CEWW An OF AdIrHMtxMN : LA # 6446 GWEM14 DE14L V
+ twx 'R5+!' "0-M 3 C*WPArfe
LMO DESMPTMN AND SKETCH
DAIWA
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ri
rM
SEE
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SKETtH ��
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SHEET
2 Offf 3
GAAgreements\2009 Agreements and Contracts\Downtown Dania Beach Development Developers Agreement.doc
8
it"" "NUL SUM 11DIt
c t �a Ft 33314 WENT
x ' AUT" eOPON : L.s f f6 WALL .W
LAND DMRWT*N AND SKM14
SET SWIET 2 O 3 ..
21
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G:\Agreements\2009 Agreements and Contracts\Downtown Dania Beach Development Developers Agreement.doc
9
EXHIBIT"4"
THE GARAGE PLANS
71,
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t � ��
x
I
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i
MON
i
1 I }
MAJOH CITY (390M
wo
jPHA
BE ISM F LM
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G:Wgreements\2009 Agreements and Contracts\Downtown Dania Beach Development Developers Agreement.doc
10
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G:\Agreements\2009 Agreements and Contracts\Downtown Dania Beach Development Developers Agreement.doc
11
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12
4 %
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G:Wgreements\2009 Agreements and Contracts\Downtown Dania Beach Development Developers Agreement.doc
14
EXHIBIT "5"
THE HOTEL PROPERTY
COUSINS SURVEYORS & ASSOCIATES. NE.](7-
t*vW-
S ATE Or A LMONZ MN : &0 / "44 G�sWou rL,�7F4MEM"
+ -� F,ML w , 00—az LAW DMROrMN AND SKETCH
L
A&L:W UM 44 mW 31h,WM AL ftftt"4W 16M PR. r- L.3...*j* ik KMX 2,"3'0 'U f
ew rw ram-Ls &,am amok:. im Tit Ro 7MM6w*r:.o4 MMricoftEb w
1\""M a it M a,MW FLMi.tt: 4 or`MW 00VA `,101011a, MM" I, 3
PAWMIXAM Y 9CM3600"Fes:
Ma2Mt M RRK.svunq m 09LMF IF $W LAM N*
imam OOM dwt"%LA'i6MY' OW MiOnt W MEW vat Lwi.5"Wn MM, rt MIo ;'L AM
ANXING WK 001 MW Or VW QF(OW91140M MtVE:M,LE -S,W FAY 080LA
Of M4R.43 $'ft M rT/MMt 4 M It it/rYC QLIW&K Tf to RAi3M..
nmvat SW Mir LM '3LfOv 4i"WS"t`fxft.
TA Now""WRY lFRY am*aw ALMMC 4r'S40 COWL A MOW aw 02.32 FW.a
TMMiM IOW14 WWW FM_A Or I t.4*FWr Tn x. MxW to o P.Arfab t
offm ca"WT FORWINIC11"Ay-
nipw
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Guffaw 01= (W ME rM rM IN AL'.4it Fur.
imw Mom worw up.Aq*111E ww j -tlA-P w wait: dM tauw ratsn
LNArYMMpY.. 0, #AMA# OF 1o�I'Mr,
7"5MC mum swolfw TAAE'SF mum ME..% M um ar am A'&&M *a, it
L7r"`Y!Kl or nil*rt tv MME MW cr ..
%%*L W95 SOMM LT".VMV WMIMG W fat[VM Ur MINA.M KW,MM4trit4 OXAM.
nAMVW OXAMMIR2KIM• FED'.."[tA:tt" AM14FMC 4AM" LA:".9'S.
LM.134k
tia L Mn t! MA OM
MI.
%LWR! NUM1 Of h ARE*IMFAWS
I TSFZLD IM "N'W" ObMw OMMA
A M4+M 40 )AMaA7..
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4 44U t#ow MMMMW*9ll3,Mot 94MIfff A f/Z3M+MWWM i6'SICK
& *9 rr"M ONSM11100ot NOW Me*AAIiMI 01~41F"h!M wI#*e*
A,. 1116NIMINil MMLrM LM IM W AW AWiIA U Tait 1IM Mt OW 4F MYiPC*1,0'1
RAAI'4It MA51M9F IV,#ebir.Pd 116 M 41L 11'aa.93M W".
I AHOY 40MM MW%K,Fr q M
tiLJLtA1MOM Age
M=W*= 04 0 WeL.F RLA64i LT omy Tan
MpMMi%" F}MM.ili MMLtMM3R`R Mffi tRt�iiLY'1
a�AAilrRtt M N IWFM6 M RR sum LU MUM,0411031Me tv
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M1CR[no L owFMM
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wR MM 4 alum 41At+MAN ,r LAND DESICAIPTION t*ARM MINOR Laiv
r Fti: SCAU-1 N ik
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G:\Agreements\2009 Agreements and Contracts\Downtown Dania Beach Development Developers Agreement.doc
15
COUSINS SURVEYOR'S a ASSOCIATES., INC. cx�a-
5921 SW 471" AYEM,AE.. SLIPM 1011 GL1fFTF
OVAL, FLt4MA M314
CERkV1 CAn r .Akn'HMZAT1GW : Le � 16418 CAEEMfi11LL DEVE1S 161r
FROM 954 5d11—'B1dSE5 FJSi1 1j�+1 E�=�7s2:13 �+iY`
LAND DE.4 i21PT" AND SKETCH
Ca PEN HAGEN V, EN U E I(PLAT)
S.W. FIRST AVENUE
V 00101'00' W 11fi_03'
'W 11 y
,w�0�
Y il
j j;I
14
46,
sit
a
QQVI.00~ E 14--24` �.a
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CHICAGO AVENUE (PLAT)
SOUS-! TE DERAL H +SH AY
WX Fe FQ 0M
woo .. -_-
FOR F1OMIL meow. -
rz � z
G:\Agreements\2009 Agreements and Contracts\Downtown Dania Beach Development Developers Agreement.doc
16
EXHIBIT 666"
THE GROUND LEASE
G:\Agreements\2009 Agreements and Contracts\Downtown Dania Beach Development Developers Agreement.doc
17
GROUND LEASE
THIS GROUND LEASE (this "Lease") is made and entered into this day of
2009 by and between the CITY OF DANIA BEACH, FLORIDA, a Florida
municipal corporation, its successors and assigns (hereinafter "City" or "Landlord"), and
DOWNTOWN DANIA BEACH DEVELOPMENT, LLC, a Florida limited liability company, its
successors and assigns (hereinafter"Tenant").
WITNESSETH:
Landlord leases to Tenant, and Tenant leases from Landlord,the Land defined below for the
term and subject to the terms, covenants, agreements and conditions set forth in this Lease.
1. Definitions. The following terms when used in this Lease shall have the following
meanings:
1.1 Attorneys' Fees. All reasonable fees charged and costs incurred by an
attorney for his services and the services of any paralegals, legal assistants or law clerks, including
(but not limited to)fees charged and costs incurred for representation at the trial level, in all appeals,
and in any bankruptcy proceedings.
1.2 Building Pit. The Building Permit to be issued for the Improvements.
1.3 Completion Date. The date on which a final certificate of occupancy or
completion is issued for the Improvements.
1.4 Default Rate. The maximum interest rate permitted by applicable Florida
law computed on a daily basis.
1.5 Development Agreement. That certain Development Agreement entered
into by and among Landlord, Tenant and the Dania Beach Community Redevelopment Agency,
setting forth the rights and obligations of the parties with respect to the development, construction
and financing of the Improvements on the Land.
1.6 Effective Date. The date that this Lease is fully executed and all changes
initialed by Landlord and Tenant.
1.7 Event of Default. Any one or more of the occurrences constituting a default
by Tenant under this Lease.
1.8 Extension Period. A period of time by which the Lease Term may be
extended in accordance with Section 2.1 of this Lease. Each Extension Period shall be for ten (10)
years.
G:\Agreements\2009 Agreements and Contracts\Downtown Dania Beach Development Developers Agreement.doc
18
1.9 Governmental Authority. Any federal, state, county, municipal or other
governmental department, entity, authority, commission, board, bureau, court, agency or any
instrumentality of any of them.
1.10 Governmental Requirement. Any law, enactment, statute, code, ordinance,
rule, regulation, judgment, decree, writ, injunction, franchise, permit, certificate, license,
authorization, agreement, or other direction or requirement of any Governmental Authority now
existing or hereafter enacted, adopted,promulgated, entered, or issued.
1.11 Hazardous Substances. Any hazardous or toxic waste, substance or material
including, but not limited to, any elements or compounds which are now or hereafter (a) identified
in Section 101(14) of the CERCLA,42 U.S.C., 9601(14), and as set forth in 40 C.F.R., 302, as same
may be amended from time to time, (b) any "hazardous air pollutant" identified in the Clean Air
Act, 42 U.S.C.A..7412, (c) determined to be toxic, a pollutant or contaminant, under any
Governmental Requirement, (d) contained in the list of hazardous substances adopted by the United
States Environmental Protection Agency, (e) defined as"petroleum"or"petroleum products"in Fla.
Stat.,376.301, as same may be amended from time to time, and (f) asbestos, radon, polychlorinated
biphenyls and such other elements, compounds, materials, substances or waste which are otherwise
dangerous, hazardous, harmful or deleterious to human or animal health or safety, or to the `
environment.
1.12 Improvements. The improvements to be designed by Tenant and developed
and constructed on the Land by Tenant or its designee in accordance with the Development
Agreement,which shall consist of an office and retail building.
1.13 Land. That certain parcel of real property owned by the City and consisting
of approximately square feet located in the City of Dania Beach, Broward
County, Florida, referred to in the Development Agreement as the "Phased 1 Leased Property," to
be an office and retail building, and more particularly described in Exhibit "A" attached to and
made a part of this Lease.
1.14 Landlord. The City of Dania Beach, Florida, a Florida municipal
corporation. Landlord's mailing address is 100 W. Dania Beach Boulevard, Dania Beach, Florida
33004;Attn: City Manager; Telephone: (954)924-6800;Fax: (954)921-2604.
1.15 Lease. This Ground Lease, together with all exhibits, riders, amendments
and modifications.
1. 16 Lease Commencement Date. [Effective
Date].
1.17 Lease Term. The period of time beginning on the Lease Commencement
Date and ending on the Lease Termination Date.
G:\Agreements\2009 Agreements and Contracts\Downtown Dania Beach Development Developers Agreement.doc
19
1.18 Lease Termination Date. December 31 of the year which is forty-nine (49)
years after the Lease Commencement Date, unless the Lease Term is extended by one or more
Extension Periods, in which case the last day of the last Extension Period shall be the Lease
Termination Date.
1.19 Lease Year. A full calendar year. The first Lease Year shall begin on
January 1 of the year following the Lease Commencement Date (unless the Lease Commencement
Date is January 1) and shall end on December 31 of the same year. Each succeeding Lease Year
shall commence on January 1 and end on December 31.
1.20 Leasehold Mortgage. A mortgage encumbering the leasehold estate of
Tenant in the Land securing the financing of the Improvements or permanent financing.
1.21 Leasehold Mortgagee. The holder of a Leasehold Mortgage.
1.22 Property. The Land and the Improvements.
1.23 Rent. The Rent due from Tenant to Landlord in each Lease Year shall be
One Dollar($1.00), as may be adjusted during the Lease Term in accordance with the Lease.
1.24 Rent Commencement Date. The date upon which Tenant shall commence
paying Rent to Landlord,which shall be the Lease Commencement Date.
1.25 Tenant. Downtown Dania Beach Development, LLC, a Florida limited
liability company, 3001 W. Hallandale Beach Blvd., Hallandale Beach, Florida 33009; Attn:
Hank Thomas, Telephone: (954) ; Fax: (954)
2. Lease Term. The Lease Term shall commence on the Lease Commencement Date
and shall terminate on the Lease Termination Date.
2.1 Extension Options. Tenant shall have the option to extend the Lease Term
for three (3) successive Extension Periods of ten(10)years each,with the terms of each extension to
be mutually agreed upon by Landlord and Tenant. In the event that Tenant wishes to extend the
Lease Term for one or more Extension Periods, Tenant shall provide written notice to Landlord of
its desire to extend not less than twelve (12) months prior to the end of the Lease Term then in
effect.
3. Construction and Ownership of Improvements. Tenant or its designee shall be
responsible for the construction of the Improvements on the Land, in accordance with the terms of
the Development Agreement. Tenant shall be responsible for the design of the Improvements and
payment for the Improvements.
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3.1 Ownership of Improvements. Landlord and Tenant agree that at the end of
the Lease Term, ownership of the Improvements will automatically revert to Landlord without the
execution or delivery of any instrument of conveyance; however, at Landlord's request, Tenant will
promptly execute and deliver to Landlord a quit claim deed and bill of sale conveying the
Improvements to Landlord. Landlord has the option, in its sole and absolute discretion, to require
that Tenant remove and clear the Improvements from the Land at Tenant's expense, on or before a
date which is ninety (90) days from the Lease Termination Date. No later than twelve (12) months
prior to the Lease Termination Date, Landlord will provide notice to Tenant of its election.
Notwithstandingthe foregoing, Tenant has the right to remove equipment, fiirnishin s and fixtures
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from the Improvements at the end of the Lease Term, other than air conditioning, electrical or
plumbing fixtures or fixtures which, if removed from the Property, would render the Improvements
uninhabitable by a subsequent tenant.
4. Use of Property. Tenant shall use and occupy the Property for an office and retail
building, and for no other use or purpose. The Property shall not be used by Tenant for any other
use without the prior written consent of Landlord, which consent may be withheld in Landlord's
sole discretion.
4.1 No Nuisance. Tenant shall not use any portion of the Property in any
manner that constitutes or might constitute waste, nuisance or other unreasonable annoyance or
disturbance. Tenant shall not do or permit to be done, on or about the Property, any act that (a)
violates any Governmental Requirement, (b) invalidates or conflicts with any provision of any
insurance policy covering the Property, (c) results in a refusal by a reputable casualty insurance
company to insure the Property, (d) causes any increase in the casualty insurance rates applicable to
the Property at the beginning of the Lease Term, or any other time; (e) subjects Landlord to any
liability or responsibility for injury to any person or property by reason of Tenant's operations on the
Property; or(f)violates any provision of the Development Agreement.
4.2 No Hazardous Substances. Tenant shall comply with all Governmental
Requirements regarding the use, handling and disposal of Hazardous Substances. Without limiting
the foregoing, Tenant shall neither cause nor permit: (a) the Property to be used to manufacture,
process, transport, store, handle, dispose of, or emit Hazardous Substances, except in compliance
with all applicable Governmental Requirements, or(b)the release of Hazardous Substances onto the
Property, any other property or into the air as a result of any intentional or unintentional act or
omission on the part of Tenant. Tenant shall defend, indemnify and hold harmless Landlord, and
Landlord's employees, agents, officers and directors, from and against any claims, demands,
known or
penalties, fines, liabilities, settlements, damages, costs or expenses of any kind or nature, kn o
unknown, contingent or otherwise (including, without limitation, Attorneys' Fees at both the trial
and appellate levels, consultant fees, investigation and laboratory fees, court costs and litigation
expenses), arising out of, or in any way related to any of the following intentionally or negligently
caused by Tenant: (a) the presence, disposal, release or threatened release of any Hazardous
Substances which are on, from or affecting soil, water, vegetation, buildings, personal property,
persons, animals or otherwise; (b) any personal injury, including wrongful death, or damage to
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property, real or personal, arising out of or related to such Hazardous Substances; (c) any lawsuit
brought, threatened or settled or the enforcement of any Governmental Requirement related to such
Hazardous Substances; or (d) any violation or any Governmental Requirements, or of any policies
or requirements of Landlord which are based upon or in any way related to such Hazardous
Substances. The provisions of this section shall be in addition to any and all other obligations and
liabilities Tenant may have to Landlord at law or in equity under this Lease, and shall survive the
termination of this Lease.
5. Maintenance and Repair of Property; Security. Throughout the Lease Term, Tenant
shall, at its own cost, and without any obligation or expense to Landlord, maintain and repair the
Land and all Improvements thereon in a good and workmanlike manner, and in clean,neat and safe
condition. Landlord shall not be obligated or responsible to maintain the Property or make any
repairs,replacements or renewals of any kind to either the Land or the Improvements. Tenant shall
be solely responsible for all carrying costs and charges of the Property, as more fully set forth in
Sections 8 and 9 below. Tenant shall also be solely responsible for all security to and protection of
the Property, and compliance with all Governmental Requirements pertaining to security of public
educational facilities includingcompliance with the Jessica Lansford Act. Tenant shall comply
P
with all provisions of the Development Agreement, and all Governmental Requirements applicable
to the Property and Tenant's use and operation of the Property.
6. Alterations, Replacements and Renovations to the Property. The Tenant shall have
the right, at no expense to the Landlord, to alter,renovate and improve the Improvements, including
the addition of additional permanent improvements to Land, subject to applicable Government
Requirements.
7. Rent. Tenant agrees to pay Rent to Landlord in each Lease Year in accordance with
this Lease beginning on the Rent Commencement Date. Rent and any other sums payable by
Tenant to Landlord under this Lease shall be paid to Landlord at its address set forth in Section 1 of
this Lease.
8. Taxes and Other Impositions.
8.1 Taxes Generally. Tenant shall pay and discharge as they become due,
promptly and prior to delinquency, any and all taxes, assessments, charges, fees, and liens assessed
or imposed by any Governmental Authority against the Land, Improvements, Tenant's leasehold
interest,or against Landlord by reason of its ownership of the underlying fee.
8.2 Real Estate Taxes. Tenant shall be responsible for the prompt payment of
any and all real estate taxes assessed against the Property during the Lease Term and shall provide
Landlord with proof of payment prior to delinquency.
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8.3 Personal Provegy Taxes. Tenant shall be responsible for the prompt
payment of any and all personal property taxes assessed against the Property during the Lease Term
and shall provide Landlord with proof of payment prior to delinquency.
8.4 Other Taxes or Impositions. Except as specifically set forth in this Lease,
Tenant shall be responsible for the payment of any taxes or impositions which may become due in
connection with this Lease or Tenant's use and occupancy of the Property, including, without
limitation,Florida sales tax.
8.5 Right to Contest Taxes. If Tenant shall in good faith desire to contest the
validity or amount of any tax, assessment,levy or other charge to be paid by Tenant, Tenant shall be
permitted to file a notice of contest and to defer payment of the tax or charge being contested until
final determination of the contest; provided, however, that Tenant shall give Landlord prior written
notice of Tenant's intention to contest a tax, and further provided that Tenant indemnifies Landlord
against any costs, liability or damage arising out of Tenant's tax contest.
8.6 Receipts. Tenant shall obtain and deliver to Landlord prior to delinquency
receipts evidencing the payment of all taxes required under the Lease to be paid by Tenant.
9. Utilities and Maintenance Costs. Tenant shall fully and promptly pay for all water,
sewer, gas, electricity, telephone, cable and other utilities of every kind furnished to the Property
throughout the Lease Term. Tenant shall also pay all other costs and expenses of every kind
whatsoever arising out of the use, operation and maintenance of the Property, including, without
limitation, charges for waste removal, landscaping, repairs, maintenance, security and charges and
assessments imposed pursuant to the Development Agreement.
10. Liens Against the Property. Tenant shall not permit any mechanic's, laborer's or
materialmen's lien to be filed against the Property or any part of the Property by reason of work,
labor, services or materials supplied or claimed to have been supplied to Tenant. If any such lien is
at any time filed against the Property or any part of the Property, Tenant, within fifteen (15) days
after notice of the filing, will cause such lien to be discharged of record by payment, deposit, bond,
order of a court of competent jurisdiction, or otherwise. If Tenant fails to cause such lien to be
discharged within the fifteen (15) day period, then, in addition to any other right or remedy,
Landlord may,but is not obligated to, discharge such lien either by paying the amount claimed to be
due or by procuring the discharge of such lien by transferring it to a bond. Any amounts paid by
Landlord.in obtaining the discharge or transfer of any lien,plus all of Landlord's costs and expenses
associated with any lien,will constitute Rent payable by Tenant under this Lease, and such amounts
will be paid by Tenant to Landlord on demand and shall accrue interest at the Default Rate.
Notwithstanding the foregoing, Tenant shall have the right to contest the correctness or the validity
of any such lien if prior to the expiration of the fifteen(15) day period, Tenant procures and records
a bond issued by a corporation authorized to issue surety bonds in Florida. The bond must meet the
requirements of local law and must provide for payment of the sum that the claimant may recover
on the claim.
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Notwithstanding anything to the contrary contained in this Lease, the interest of
Landlord, whether real or personal, in and to the Property or any part of the Property shall not be
subject to or chargeable with any liens for labor performed or material supplied in connection
with any work or improvements performed or caused to be performed by Tenant, and Tenant
shall have no right, power or authority to create or allow to be created any such liens regardless
of whether Landlord has approved or consented to such work or improvements. All persons and
entities contracting or otherwise dealing with Tenant relative to the Property are placed on notice
of the provisions of this Section. Tenant will comply with all requirements set forth in Section
713.10, Florida Statutes; and Landlord and Tenant further agree to execute, acknowledge and
record in the Public Records of Broward County, Florida, as part of the Memorandum of Lease
set forth in Section 25.9 a Notice pursuant to Section 713.10, Florida Statutes
11. Asiinment and Sublease. Tenant shall not assign, transfer or sublet this Lease,
in whole or in part, or any interest in the Lease or the Land or Improvements,to any party or entity,
without the prior written consent of the Landlord, which may be granted or withheld by Landlord in
its sole and absolute discretion. Any assignment, transfer or sublease by Tenant in violation of the
requirements of this section shall be void, and shall, at the option of Landlord, terminate this Lease.
Neither this Lease nor the leasehold estate of Tenant nor any interest of Tenant in the Land or any of
the Improvements on it shall be subject to involuntary assignment, transfer, or sale, or to
assignment, transfer, or sale by operation of law in any manner whatsoever, and any involuntary
assignment, transfer, or sale shall be void and of no effect and shall, at the option of Landlord,
terminate this Lease.
12. Leasehold Mort aizes. Tenant shall have the right to mortgage and pledge this Lease
subject to the limitations of this section. Any Leasehold Mortgage shall be subject and subordinate
to the rights of the Landlord under the Lease. At no time shall this Lease be subordinated to a
Leasehold Mortgage or the interest of the holder or beneficiary of any Leasehold Mortgage. Any
Leasehold Mortgage shall be a lien only on Tenant's leasehold interest and shall not encumber
Landlord's fee interest in the Land.
12.1 Notice to Landlord. No Leasehold Mortgagee shall have the rights or
benefits mentioned in this section,nor shall the provisions of this section be binding upon Landlord,
unless and until the name and address of the Leasehold Mortgagee have been delivered to Landlord.
It is expressly understood that Landlord shall not have the right to approve or disapprove any
Leasehold Mortgagee or the terms and conditions of any Leasehold Mortgage pursuant to this
Lease.
12.2 Notice and Cure of Defaults. As long as any Leasehold Mortgage remains
unsatisfied of record,the following provisions shall apply:
12.2.1 Notice to Leasehold Mortgagee. Landlord,upon serving Tenant with
notice of an Event of Default or any other notice required under the provisions of this Lease, shall
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also serve a copy of such notice upon the Leasehold Mortgagee, at the address provided to
Landlord.
12.2.2 Leasehold Mortgagee's Right to Cure. If Tenant is in default under
the Lease, any Leasehold Mortgagee shall have the right to cure the default, or cause the same to be
cured within the time periods set forth in this Lease as if the performance had been ordered by
Tenant.
12.2.3 Cure Period. For the purposes of this section, no Event of Default
shall be deemed to exist under the Lease if steps have in good faith been commenced within the
time permitted to cure such default and are carried out to completion with diligence and continuity.
12.3 Notice of and Participation in Proceedings. Landlord shall give each
Leasehold Mortgagee prompt notice of any legal proceedings pursuant to this Lease. Within the
time frames set forth in this Lease, each Leasehold Mortgagee shall have the right (to the extent
permitted by applicable law) to intervene in any such proceeding, appoint an attorney or other
representative in the event Tenant fails to do so and be made a party to such proceeding, and
Landlord and Tenant consent to such intervention. In the event that any Leasehold Mortgagee shall
elect not to intervene or become a party to any such proceeding, Landlord shall, upon written
request by the Leasehold Mortgagee, deliver to such Leasehold Mortgagee notice of, and a copy of,
any award or decision made in any such proceeding,which award or decision shall be binding on all
Leasehold Mortgagees,regardless of whether same chose to intervene after receipt of such notice.
12.4 Insurance. Each Leasehold Mortgagee may be added to the "loss payable
endorsement" on all property and liability insurance required under this Lease, as its interest may
appear,and as an insured or additional insured on all liability insurance.
12.5 Cooperation by Landlord. Landlord acknowledges that existing and future
Leasehold Mortgagees of Tenant may require estoppel certificates from Landlord and consents,
approvals or other written documentation from Landlord and from certain third parties that may
from time to time have a property, regulatory or other interest in the Property. Landlord agrees to
deliver to each such Leasehold Mortgagee, within a reasonable time after Landlord's receipt of
written request, customary estoppel certificates in form and substance reasonably satisfactory to
Landlord, and to cooperate with Tenant and each Leasehold Mortgagee in order to obtain such
written documentation from any such third parties. Notwithstanding the foregoing, Landlord shall
not be obligated to expend any money or undertake any obligation in implementation of the
foregoing, and shall be reimbursed by Tenant or the Leasehold Mortgagee for all reasonable costs
paid by Landlord in connection estoppel certificates, including Landlord's Attorney's Fees.
12.6 Notice of Defaults Under Leasehold Mortgages. Leasehold Mortgagee shall
have the obligation to forward a copy of any notice of default under a Leasehold Mortgage to
Landlord simultaneously with its giving such notice to Tenant. Tenant agrees to forward to
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Landlord a copy of any notice of default under any Leasehold Mortgage within five (5) days after
Tenant's receipt from the Leasehold Mortgagee.
12.7 Termination of Lease. In the event of termination of this Lease prior to the
expiration of the Lease Term,Landlord shall serve the Leasehold Mortgagee with written notice that
the Lease has been terminated, together with a statement of any and all sums which would at that
time be due under the Lease but for such termination, and of all other defaults, if any, under the
Lease then known to Landlord. The Leasehold Mortgagee shall have the following options:
12.7.1 New Lease with Leasehold Mortgaizee. The Leasehold Mortgagee or
its designee may enter into a new lease with Landlord by sending Landlord a written request to enter
into a new Lease, such request to be sent within thirty days after service of the notice on Leasehold
Mortgagee that the Lease has been terminated. The new lease shall be entered into at the reasonable
cost of the tenant, shall be effective as of the date of termination of this Lease, and shall be for the
remainder of the Lease Term at the Rent and upon all the agreements, terms, covenants and
conditions of this Lease, including any applicable rights to extend the Lease Term. The tenant
under the new lease shall comply with all provisions in the Lease, and the Development Agreement
regarding the use of the Property. The new lease shall require the tenant to perform any unfulfilled
obligation of Tenant under this Lease which is reasonably susceptible of being performed by the
new tenant. Upon the execution of the new lease,the new tenant shall pay all sums which would at
the time of the execution of the new lease be due under this Lease but for such termination, and
shall pay all expenses, including Attorneys' Fees, court costs and disbursements incurred by
Landlord in connection with the defaults under and termination of this Lease, the recovery of
possession of the Land, and the preparation, execution and delivery of the new lease.
12.7.2 No New Lease with Leasehold Mortizalee. If the Leasehold
Mortgagee does not request to enter into a new lease with Landlord, title to the Improvements on
the Land will automatically revert to Landlord without the execution or delivery of any instrument
of conveyance effective upon the date of termination of the Lease. The Leasehold Mortgagee shall,
however, execute and deliver to Landlord a recordable satisfaction of mortgage if the Leasehold
Mortgage is still outstanding, or a quitclaim deed if the Leasehold Mortgagee has previously
foreclosed the Leasehold Mortgage.
13. Insurance.
13.1 Builder's Risk Insurance. During construction of the Improvements and
prior to the issuance of a certificate of occupancy or completion for the Improvements builder's risk
insurance shall be provided by the City as determined in its sole discretion.
13.2 Hazard Insurance. Upon the completion of the Improvements, Tenant shall
procure and maintain in force and effect throughout the Lease Term, a standard form hazard
insurance policy insuring the Improvements against loss by fire and other hazards, casualties and
contingencies including, but not limited to, flood, storm or other catastrophe, with an extended
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coverage endorsement covering the Improvements in an amount of not less than one hundred
percent (100%) of the full replacement value. Tenant shall provide Landlord with a copy of this
insurance policy prior to the issuance of a certificate of occupancy or completion for the
Improvements.
13.3 Liability Insurance. Throughout the Lease Term, Tenant shall, at its own
cost and expense, maintain in force comprehensive general liability insurance covering any
occurrence on the Property and operation and use of the Property as a public educational facility
resulting in property damage, bodily injury or death, in an amount of not less than Five Million
Dollars ($5,000,000.00). Tenant shall further procure and maintain all insurance appropriate or
required by any Governmental Requirements for an office and retail building on the Property.
13.4 Flood Insurance. Upon the completion of the Improvements, Tenant shall, at
its own cost and expense, maintain flood insurance in the amount of the maximum coverage
available.
13.5 Worker's Compensation. Throughout the Lease Term, Tenant shall maintain
Worker's Compensation insurance in not less than the statutorily required amounts.
13.6 Business Interruption Insurance. Tenant shall maintain business interruption
insurance in an amount sufficient to compensate Landlord and Tenant in the event Tenant is unable
to use or occupy the Property for its intended purpose for any reason whatsoever from and after the
Completion Date.
13.7 Insurance Requirements. All insurance to be provided by Tenant shall: (a)
be issued by an insurance company with a Best's A+ rating or better licensed to do business in
Florida; (b) be issued as a primary policy; (c) name Tenant as an insured and Landlord as an
additional insured; and (d) contain an endorsement requiring thirty (30) days' written notice from
the insurance company to Landlord and Tenant prior to cancellation or any change in coverage,
scope or amount of any policy. Each insurance policy to be provided by Tenant or a certificate of
insurance evidencing same, together with proof of payment of the premium, shall be delivered to
Landlord prior to the Lease Commencement Date, and evidence of renewal of each policy shall be
provided to Landlord not less than ten(10)days prior to the expiration of the policy.
13.8 Insurance Limits. Landlord makes no representations that the limits of
insurance specified to be carried by Tenant under the terms of this Lease are adequate to protect
Tenant, and in the event that Tenant believes that any such insurance coverage called for under this
Lease is insufficient, Tenant shall provide at its own expense, such additional insurance as Tenant
deems adequate. If at any time during the Lease Term, Landlord believes that any insurance limits
specified in this Lease are insufficient or inadequate, Landlord shall have the right to require Tenant
to obtain additional insurance in excess of the amounts required in this Lease, at Tenant's expense.
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13.9 Use of Insurance Proceeds. Except as otherwise set forth in this Lease, and
provided that no Event of Default has occurred and is continuing, in the event of a casualty causing
damage or destruction of any portion of the Improvements, any insurance proceeds payable on
account of the casualty may be used by Tenant for the repair or reconstruction of the Improvements,
subject to the following limitations:
13.9.1 Repair or Reconstruction Requirements. Any repair or
reconstruction of the Improvements shall be done in accordance with the requirements of this Lease,
and the Development Agreement pertaining to alteration of the Improvements.
13.10 Payment of Premiums. Tenant shall pay the premiums for all policies of
insurance required under this Lease. In the event Tenant fails to obtain or pay for the insurance
required by this Lease, Landlord shall have the right, but not the obligation, to purchase the
insurance and pay the premiums, which amounts shall be repayable by Tenant upon demand as
Rent,and shall accrue interest at the Default Rate.
14. Casual
14.1 Damage or Destruction of Improvements. The damage, destruction, or
partial destruction of any portion of the Improvements shall not release Tenant from any obligations
under this Lease, except as expressly provided below. In case of damage to or destruction of any
Improvements, Tenant shall file a claim for insurance coverage within thirty (30) days after the
occurrence of damage or destruction, and shall provide a copy of the claim to Landlord. Regardless
of whether Tenant receives any insurance proceeds covering the damage or destruction, within one
hundred twenty (120) days after the damage or destruction occurs, Tenant shall, at its own expense,
promptly repair and restore the Improvements to a condition as good or better than that which
existed prior to the damage or destruction. Without limiting the obligations of Tenant and provided
that no Event of Default has occurred and remains uncured, Landlord agrees that the proceeds of
any insurance covering the damage or destruction shall be made available to Tenant for repair or
replacement of the Improvements, subject to the following limitations:
14.1.1 Repair or Reconstruction Requirements. Any repair or
reconstruction of the Improvements shall be done in accordance with the requirements of the
Development Agreement pertaining to alteration of the Improvements.
14.2 Damaize or Destruction Occurring Toward End of Term. In case of
destruction or damage to the Improvements from any cause occurring during the last five (5) years
of the Lease Term or any Extension Periods, resulting in damage or destruction exceeding fifty
percent (50%) of the Fair Market Value of the Improvements, as determined by an appraisal,
Tenant shall have the right to elect to renegotiate this Lease or terminate this Lease by giving
Landlord notice of such election within thirty(30) days following the occurrence of such damage or
destruction.
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14.2.1 Renegotiation. In the event that Tenant elects to renegotiate this
Lease, then upon delivery of Tenant's notice, Landlord and Tenant shall meet and negotiate in good
faith an amendment to this Lease which will extend the Lease Term and modify the Rent so that the
new Lease Term and Rent are mutually acceptable to Landlord and Tenant, but without modifying
any of the other provisions of this Lease. Tenant shall continue to pay Rent during the period of
renegotiation. In the event the parties agree on such an amendment, then they shall execute and
implement the amendment. If Landlord and Tenant fail to agree upon such an amendment within
180 days after Tenants notice for renegotiation is delivered, then Landlord shall give Tenant a
notice of termination.
14.2.2 Termination. In the event Tenant elects to terminate this Lease or in
the event Landlord and Tenant fail to agree upon an amendment to this Lease under the immediately
preceding subsection, then (a) Tenant shall continue to pay Rent until the date of the termination
under this subsection, (b) Tenant shall complete demolition of the Improvements to grade and shall
return the Land to a safe condition at level grade, in accordance with all Governmental
Requirements,within 180 days following the giving of notice of termination or following the end of
the 180-day renegotiation period, whichever is applicable, (c) any insurance proceeds covering the
damage or destruction not paid to a Leasehold Mortgagee or used for the demolition of the
Improvement or grading of the Land shall be shared equally by Landlord and Tenant, and (d) the
Lease Term shall cease and expire as of the completion of such demolition and grading, as though
the date of such completion were the Lease Termination Date. On termination, Rent, taxes,
assessments, and any other sums payable by Tenant to Landlord under this Lease shall be prorated
as of the termination date, and in the event any Rent, taxes, or assessments shall have been paid in
advance,Landlord shall refund them to Tenant for the unexpired period for which payment has been
made. Upon completion of the foregoing, Landlord and Tenant shall have no further liabilities under
this Lease, except with respect to any defaults which shall have occurred.
14.2.3 Election Not to Terminate. If, in the event of destruction or damage
occurring during the last five (5)years of the Lease Term or any Extension Periods, Tenant does not
elect to either renegotiate or terminate this Lease,the proceeds of all insurance covering the damage
or destruction shall be made available to Tenant for repair or replacement, and Tenant shall be
obligated to repair or rebuild the Improvements as above provided.
15. Condemnation.
15.1 Definitions. For purposes of this section, the following terms shall have the
following meanings:
15.1.1 Total Taking. The taking of the entire Land and all Improvements
under the power of eminent domain either by judgment or by settlement in lieu of judgment, or the
taking of so much of the Land and Improvements as to prevent the use of the Property by Tenant in
a commercially reasonable manner. The Landlord shall reasonably determine whether so much of
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the Land and Improvements have been taken as to prevent the use of or render impossible the
commercial operation of the Property by the Tenant.
15.1.2 Partial Taking. Either a temporary taking or the taking of only a
portion of the Property that does not constitute a total taking.
15.1.3 Volunteer Conveyance. A total taking or a partial taking shall
include a voluntary conveyance to any Governmental Authority or private entity or person
empowered to condemn property in lieu of formal court proceedings.
15.1.4 Date of Taking. The date upon which title to the Property or a
portion of the Property passes to and vests in the condemnor or the effective date of any order for
possession if issued prior to the date title vests in the condemnor.
15.2 Effect of Taking. If during the Lease Term there shall be a total taking under
the power of eminent domain, then the leasehold estate of Tenant in and to the Property shall cease
and terminate as of the date of taking. If this Lease is so terminated, all Rents payable by Tenant to
Landlord shall be paid by Tenant up to the date of taking by the condemnor, and the parties shall be
released from all further liability under this Lease.
15.3 Allocation of Award. Any award or payment made with respect to a taking
shall be allocated between Landlord and Tenant as follows:
15.3.1 Total Taking. In the event of a total taking, Landlord shall receive
that portion of the award which is equal to the Fair Market Value of the Land as if unimproved and
as if unencumbered by the Lease at the time of the taking, together with the residual value of the
Improvements at the end of the Lease Term. Both the Fair Market Value of the unimproved and
unencumbered Land and the residual value of the Improvements shall be established by the
appraisal procedure set forth in the Lease. Any portion of the award remaining shall be paid to
Tenant.
15.3.2 Partial Taking. All awards from a partial taking shall be paid to
Landlord. Rent payable by Tenant after a partial taking shall be calculated by multiplying the Rent
then in effect by a fraction, the numerator of which is the acreage of the Land remaining after the
taking,and the denominator of which is the acreage of the Land prior to the taking.
16. Indemnification. Tenant agrees to indemnify, hold harmless, and defend Landlord,
its officers, employees, agents and representatives (collectively the "Landlord" for the purposes of
this section) from and against any and all claims, actions, damages, losses, liabilities, costs or
expenses (including Attorneys' Fees) arising out of or in connection with: (a) any breach by Tenant
of its warranties, representations, obligations or covenants in this Lease; (b)the use or occupancy of
the Property by Tenant, its agents or invitees; (c) any negligent or willful act or omission, neglect or
fault of Tenant,its agents, servants, employees,licensees, or invitees; (d) Tenant's failure to comply
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with any Governmental Requirements; (e) Tenant's failure to maintain in good working order any
property of Tenant located in, on, or under the Property. The insurance requirements of this Lease
shall not be construed to limit Tenant's liability, and Tenant's indemnification and holding harmless
of Landlord shall survive the expiration or earlier termination of the Lease.
17. Events of Default. Each of the following occurrences shall constitute an Event of
Default under the Lease:
17.1 Failure to Pay. Tenant's failure to pay any sum required to be paid under
this Lease within fifteen(15)days after payment is due.
17.2 Failure to Perform. Tenant's failure to perform any obligation or fulfill any
covenant or agreement set forth in the Lease after receipt of written notice of the non-performance
and expiration of a period of thirty(30) days.
17.3 False Representation. If any representation or warranty made in the Lease
by Tenant is at any time false, misleading, or breached, and such misrepresentation is not cured
within thirty(30) days after receipt of written notice from Landlord.
17.4 Assignment of Lease or Sublease of Property. The assignment or transfer or
attempted assignment or transfer by Tenant of the Lease or any of its rights or obligations under this
Lease, or the sublease or attempted sublease by Tenant of the Property in whole or in part, except as
expressly permitted by this Lease.
17.5 Development Agreement. Tenant's failure to perform any obligation or
fulfill any covenant, condition or restriction set forth in the Development Agreement.
17.6 IMprovements. Tenants failure to repair and maintain the Improvements as
required by this Lease.
18. Remedies for Events of Default. Upon the occurrence of an Event of Default,
Landlord shall be entitled to seek all legal and equitable remedies available, including, without
limitation, cancellation of the Lease, removal of Tenant from the Property, specific performance,
injunctive relief, and damages.
18.1 Remedies Cumulative and Concurrent. No right, power or remedy of
Landlord provided in this Lease is intended to be exclusive of any other right, power, or remedy of
Landlord, but each and every such right,power and remedy shall be cumulative and concurrent and
in addition to any other right, power or remedy now or hereafter existing at law or in equity and
may be pursued separately, successively or concurrently against Tenant, at the sole discretion of
Landlord. The failure of Landlord to exercise any such right, power or remedy shall in no event be
construed as a waiver or release of any such right,power or remedy.
G:\Agreements\2009 Agreements and Contracts\Downtown Dania Beach Development Developers Agreement.doc
31
18.2 Waiver, Delay or Omission. No waiver of any Event of Default under this
Lease shall extend to or affect any subsequent or other Event of Default then existing, or impair any
rights, powers or remedies consequent thereon, and no delay or omission of Landlord to exercise
any right, power or remedy shall be construed to waive any such Event of Default or to constitute
acquiescence.
19. Landlord's Right of Entry. Landlord and its authorized representatives shall have
the right to enter upon the Land and Improvements at all reasonable times for any purpose
associated with Landlord's ownership of the Land or the obligations of either party to this Lease.
Tenant agrees to provide Landlord with reasonable access to the Property.
20. Notices. Any notice, request, demand, instruction or other communication to be
given to either parry under this Lease shall be in writing and shall either be (a) hand-delivered, (b)
sent by Federal Express or a comparable overnight mail service, or (c) mailed by U.S. registered or
certified mail, return receipt requested, postage prepaid, or (d) sent by telephone facsimile
transmission provided that an original copy of the transmission shall be mailed by regular mail, to
Landlord and Tenant at their respective addresses set forth in Section 1 of this Lease. Notice shall
be deemed to have been given upon delivery or refusal of delivery of the notice. The addressees
and addresses for the purpose of this section may be changed by giving notice. Unless and until
such written notice is received,the last addressee and address stated in this Lease shall be deemed to
continue in effect for all purposes under this Lease.
21. Tenant's Estoppel Certificate. Within fifteen (15) days after request by Landlord,
Tenant shall execute and deliver a certificate in recordable form to any proposed mortgagee or to
Landlord, together with a true and correct copy of this Lease, certifying (with such exceptions or
modifications as may be the case) (a)that this Lease is in full force and effect without modification;
(b)the amount, if any, of prepaid Rent paid by Tenant to Landlord; (c)that Landlord has performed
all of its obligations due to be performed under this Lease and that there are no defenses,
counterclaims, deductions or offsets outstanding or other excuses for Tenant's performance under
this Lease; and (d) any other fact reasonably requested by Landlord or such proposed mortgagee.
Landlord may present to Tenant a form of such certificate, and Tenant's failure to properly execute
and deliver such form of certificate (with such exceptions or modifications noted thereon as may be
asserted by Tenant in good faith) within fifteen (15) days after request shall be conclusive upon
Tenant as to the truth of all statements contained in the certificate as presented by Landlord and may
be relied on by any person holding or proposing to acquire an interest in the Property or any part of
the Property. Tenant's failure to properly execute and deliver such form of certificate within fifteen
(15) days after request by Landlord shall, at Landlord's option,be deemed an Event of Default under
this Lease.
22. Holdover Tenancy. If Tenant shall hold over after the expiration of the Lease Term,
at Landlord's option, Tenant may be deemed to be occupying the Property as a tenant at sufferance,
which tenancy may be terminated by seven (7) days written notice. During such tenancy, Tenant
agrees to pay to Landlord, annually in advance, Rent in an amount equal to two hundred percent
G:\Agreements\2009 Agreements and Contracts\Downtown Dania Beach Development Developers Agreement.doc
32
(200%) of the annual installment of Rent which was due for the last Lease Year of the Lease Term,
and to be bound by all of the terms, covenants and conditions in this Lease specified. If Landlord
relets the Property (or any portion of the Property) to a new tenant and the term of such new lease
commences during the period for which Tenant holds over, Landlord shall be entitled to recover
from Tenant any and all damages, including, without limitation, all costs, expenses, Attorneys'
Fees, and lost profits incurred by Landlord as a result of Tenant's failure or inability to deliver
possession of the Property to Landlord as required under this Lease.
23. Subordination. Tenant agrees that its rights under this Lease shall at all times be
subordinate to the rights of any person or entity holding a mortgage, security interest or lien upon
Landlord's fee interest in the Land or any portion of the Property, and Tenant agrees, upon demand
and without cost to Landlord, to execute such instruments as may be required to effectuate such
subordination; provided, however, that any such mortgage, security interest, or lien shall not extend
to Tenant's furnishings, fixtures or equipment installed in the Improvements. Tenant's refusal to
execute any instrument of subordination that is consistent with all the terms and conditions of this
Lease shall be deemed an Event of Default.
24. Surrender. Upon the expiration or other termination of this Lease, Tenant
shall quit and surrender to Landlord the Property, together with the Improvements and all other
property affixed to the Property, excluding Tenant's fixtures, in good order and condition,
ordinary wear and tear, casualty and condemnation excepted. Tenant shall, prior to the expiration
or other termination of this Lease, remove all other property belonging to it and failing to do so,
Landlord may cause all of the personal property to be removed. Tenant's obligation to observe or
perform this covenant shall survive the expiration or other termination of this Lease. In the
alternative, Landlord may, at its option, treat any and all items not removed by Tenant on or
before the date of expiration or other termination of this Lease as having been relinquished by
Tenant and such items shall become the property of Landlord with the same force and effect as if
Tenant had never owned or otherwise had any interest in such items.
25. Miscellaneous.
25.1 Amendments. No modification or amendment of this Lease shall be of any
force or effect unless in writing and signed by both Landlord and Tenant.
25.2 Attorneys' Fees. If Landlord is required to pay any costs, expenses or
damages, including Attorneys' Fees, in instituting, prosecuting or defending any action or
proceeding by reason of any Event of Default under this Lease, the sums so paid by Landlord shall
be deemed to be Rent under this Lease and shall be due and payable by Tenant promptly after
Landlord's demand. In the event of any litigation arising out of this Lease,the prevailing parry shall
be entitled to recover its Attorneys' Fees and costs.
25.3 Construction of Lease. Should any provisions of this Lease require
interpretation in any judicial, administrative or other proceeding or circumstance, it is agreed that
G:\Agreements\2009 Agreements and Contracts\Downtown Dania Beach Development Developers Agreement.doc
33
the court, administrative body, or other entity interpreting or construing the same shall not apply a
presumption that the terms shall be more strictly construed against one party by reason of the rule of
construction that a document is to be construed more strictly against the party who prepared the
same, it being further agreed that both parties have fully participated in the negotiation and
preparation of this Lease.
25.4 Counterparts. This Lease may be executed in any number of counterparts,
any one and all of which shall constitute the agreement of the parties and each of which shall be
deemed an original.
25.5 Entire Agreement. This Lease sets forth the entire agreement between
Landlord and Tenant relating to the Land and all subject matter in this Lease, and supersedes all
prior and contemporaneous negotiations, understandings and agreements, written or oral, between
the parties.
25.6 Gender. As used in this Lease,the masculine shall include the feminine and
neuter, the singular shall include the plural and the plural shall include the singular as the context
may require.
25.7 Governing Law; Venue. This Lease shall be interpreted in accordance with
the laws of the State of Florida, both substantive and remedial, regardless of the domicile of any
party, and will be deemed for such purposes to have been made, executed and performed in the
State of Florida. Venue for any action brought under this Lease shall be proper exclusively in
Broward County,Florida.
25.8 Radon Gas. Radon is a naturally occurring radioactive gas that, when it has
accumulated in a building in sufficient quantities, may present health risks to persons who are
exposed to it over time. Levels of radon that exceed federal and state guidelines have been found in
buildings in Florida. Additional information regarding radon and radon testing may be obtained
from your county public health unit.
G:\Agreements\2009 Agreements and Contracts\Downtown Dania Beach Development Developers Agreement.doc
34
25.9 Recording of Lease. At Landlord's option, this Lease may be recorded in
the Public Records of Broward County, Florida. Within thirty (30) days after the Lease
Commencement Date, Tenant, at Landlord's request, shall execute a "Memorandum of Ground
Lease" in substantially the form as attached in Exhibit`B", setting forth a description of the Land,
the Lease Commencement Date, Lease Termination Date, and any other information required by
Landlord. Landlord may, at its option, record the Memorandum of Lease in the Public Records of
Broward County, Florida.
25.10 Section and Paragraph Headings. The section and subsection headings in
this Lease contained are for the purposes of identification only and shall not be considered in
construing this Lease.
25.11 Severability. Should any clause or provision of this Lease be determined to
be illegal, invalid or unenforceable under any present or future law by final judgment of a court of
competent jurisdiction, the remainder of this Lease will not be affected. It is the intention of the
parties that if any such provision is held to be illegal, invalid or unenforceable,there will be added
in its place a legal, valid and enforceable provision that is as similar as possible in terms to the
illegal,invalid or unenforceable provision,which is agreed to by both parties.
25.12 Successors and Assigns. This Lease shall inure to the benefit of and be
binding upon the permitted successors and assigns of the parties.
25.13 Time of the Essence. Time is of the essence in the performance of all
obligations by Tenant under this Lease.
26. Authority to Execute. Landlord and Tenant each warrant and represent to the other
that the individuals signing this Lease on behalf of Landlord and Tenant, respectively, have full
power and authority to execute and deliver the Lease and to bind the respective parties.
27. Force Majeure. The time for performance by Landlord or Tenant of any term or
provision of this Lease shall be deemed extended by time lost due to delays resulting from acts
of God, strikes, civil riots, floods, unavailability of material or labor, and restrictions by
Governmental Authority, as the case may be.
28. Subordination; Non-Disturbance and Attornment. Landlord understands and
agrees that Tenant shall not be required hereafter tosubordinate its interest in this Lease to any
deed of trust, mortgage deed, mortgage, deed to secure debt or to any other lien, encumbrance,
condition, restriction, covenant or agreement affecting the Property; provided, however, that
Tenant agrees to subordinate its interest in this Lease to a deed of trust, mortgage, mortgage
deed or deed to secure debt if the beneficiary and trustee or the mortgagee executes, causes to
be acknowledged and delivers to Tenant a Non-Disturbance and Attornment Agreement. If by
virtue of an amendment to this Lease, operation of law or for any other reason, any mortgagee,
trustee or beneficiary under a deed of trust or holder of any other security instrument claims an
interest in the Property prior to that of Tenant, Tenant's estate under this Lease shall be
subordinate to the interest of such party only if such party executes, causes to be acknowledged
and delivers to Tenant a Non-Disturbance and Attornment Agreement.
29. Limitation of Landlord's Liability. Anything contained in this Lease at law or
in equity to the contrary notwithstanding, Tenant expressly acknowledges and agrees that there
shall at no time be or be construed as being any personal liability by or on the part of Landlord
under or in respect of this Lease or in any way related to this Lease or to the Property; it being
further acknowledged and agreed that Tenant is accepting this Lease and the estate created
upon and subject to the understanding that it shall not enforce or seek to enforce any claim or
judgment or any other matter, for money or otherwise, personally or directly against any
officer, official, director, principal (disclosed or undisclosed), employee, representative or
agent of Landlord, but will look solely to the Landlord's interest in the Property for the
satisfaction of any and all claims, remedies or judgments (or other judicial process) in favor of
Tenant requiring the payment of money by Landlord in the event of any breach by Landlord of
any of the terms, covenants or agreements to be performed by Landlord under this Lease, and
no other assets of Landlord shall be subject to levy, execution or other judicial process for the
satisfaction of Tenant's claims, such exculpation of personal liability as set forth in this Lease
shall be absolute, unconditional and without exception of any kind except that the foregoing
exculpation shall not apply to or limit (a) any injunctive, declaratory or other forms of equitable
relief to which Tenant may be entitled, or (b) any other remedy or action against Landlord
which does not involve the personal liability of Landlord or any officers, officials, directors,
principals (disclosed or undisclosed), employees, representatives or agents of Landlord for
monetary damages.
[SIGNATURE PAGES TO FOLLOW]
IN WITNESS WHEREOF,this Lease has been executed as of the dates set forth below.
Witnesses: LANDLORD:
CITY OF DANIA BEACH, FLORIDA,
a Florida municipal corporation
Print Name:
By:
Print Name: Name:
Title:
Dated: 52009
Witnesses: TENANT:
DOWNTOWN DANIA BEACH
DEVELOPMENT, LLC,
a Florida limited liability company
Print Name:
By:
Print Name: Name:
Title:
Dated: , 2009
ACKNOWLEDGMENTS
STATE OF FLORIDA )
) SS
COUNTY OF BROWARD )
The foregoing instrument was acknowledged before me this _ day of ,
2009, by , as of the City of Dania
Beach, Florida, a Florida municipal corporation, who is personally known to me or presented a
as identification.
Notary Public, State of Florida
Print Name
My Commission Expires:
STATE OF FLORIDA )
) SS
COUNTY OF BROWARD )
The foregoing instrument was acknowledged before me this _ day of ,
2009, by , as of Downtown Dania
Beach Development, LLC, a Florida Limited Liability company, who is personally known to me
or presented a as identification.
Notary Public, State of Florida
Print Name
My Commission Expires:
EXHIBIT "A"
THE LAND
EXHIBIT "B"
MEMORANDUM OF GROUND LEASE
Memorandum of Ground Lease
This instrument prepared by or under the supervision of
(and after recording should be returned to):
Name:
Address:
(Space Reserved for Clerk of Court)
MEMORANDUM OF GROUND LEASE
THIS MEMORANDUM OF LEASE is made and entered into this day of
, 2009, by and between the City of Dania Beach, Florida, a Florida municipal
corporation("Landlord") and Downtown Dania Beach Development, LLC, a Florida limited
liability company("Tenant").
WHEREAS:
A. Landlord is the owner of that certain real property located in Broward County,
Florida, more particularly described in Exhibit "A" attached to this Memorandum and by this
reference made a part hereof(the "Property").
B. Landlord and Tenant have entered into that certain Ground Lease, of even date
herewith, whereby Landlord has leased the Property to Tenant(the "Lease").
C. Landlord and Tenant desire to place all persons to whom these presents may
come upon notice of the existence of the Lease.
NOW, THEREFORE, in consideration of the foregoing, and other good and valuable
consideration,the receipt and sufficiency of which are hereby acknowledges, Landlord and
Tenant agree as follows:
1. The foregoing recitals are true and correct and are incorporated herein by
reference.
2. All persons are hereby placed on notice of the existence of the Lease.
3. Pursuant to Florida Statutes, Section 713.10, all persons dealing with Tenant are
hereby given notice that Landlord shall not be liable for any work performed or to be
performed on the Property at the request of Tenant, or for any materials furnished or to be
furnished at the property for tenant, and that Tenant has no authority whatsoever to subject
Landlord's interest in the Property to any liens for labor, service or materials provided to
Tenant. All materialmen, contractors, mechanics and laborers and any other persons contacting
with Tenant for the demolition, construction, installation, alteration or repair of any
improvements on, within or about the Property, are hereby further charged with notice that they
must look only to Tenant and to Tenant's interest in the Property to secure payment for any
work done or material furnished at the request or instruction of Tenant.
4. The terms of this memorandum ay only be modified or amended by an
instrument in writing, fully executed by both Landlord and Tenant.
[Remainder of page intentionally left blank.]
IN WITNESS WHEREOF, the parties have caused this Memorandum to be executed as
of the day and year first above written.
Signed, Sealed and Delivered
in the presence of:
LANDLORD:
THE CITY OF DANIA BEACH,
FLORIDA, a municipal corporation
By:
Name:
Attest:
Name: , City
Clerk
STATE OF FLORIDA
COUNTY OF )
The foregoing instrument was acknowledged before me this day of ,
2009, by as of the City of Dania Beach,
Florida, a municipal corporation, on behalf of said municipal corporation. He/She is personally
known to me or has produced as identification.
Notary Public, State of Florida
My Commission Expires: Print Name:
TENANT:
DOWNTOWN DANIA BEACH,
DEVELOPMENT, LLC, a Florida limited
liability company
By:
Name: Name:
Title:
Name:
STATE OF FLORIDA )
COUNTY OF )
The foregoing instrument was acknowledged before me this day of ,
2009, by as of Downtown Dania Beach
Development, LLC a Florida limited liability company, on behalf of said limited liability
company. He/She is personally known to me or has produced as
identification.
Notary Public, State of Florida
My Commission Expires: Print Name:
EXHIBIT "A"
Legal Description
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EXHIBIT 6610"
PROCEDURE FOR DIRECT OWNER'S PURCHASE PROGRAM
1. The City or the CRA reserve the right to require the Developer to assign to the City or
the CRA any of the Developer's subcontracts, purchase orders or other agreements for the
procurement of materials. Any materials purchased by the City or the CRA pursuant to
such an assignment are hereinafter referred to as "Owner Furnished Materials" and the
responsibilities of the City or the CRA and the Developer relating to such Owner
Furnished Materials shall be governed and controlled by the terms and conditions of this
Procedure for Owner Furnished Materials ("Procedure").
2. The Developer shall provide the City or the CRA a list of all intended suppliers,
vendors, and materialmen hereinafter referred to as "Supplier" for consideration with
respect to the Owner Furnished Materials. This list shall be submitted within ten(10) days
of receipt of the City or the CRA's written request for such list. The Developer shall
include price quotations, specific descriptions of the materials to be supplied and the
estimated quantities of the same.
3. Upon request by the City or the CRA, and in a timely manner, the Developer shall
prepare Purchasing Requisition Request Forms which shall, in a form acceptable to the
CRA's Representative, specifically identify the materials which the City or the CRA may,
in its discretion, elect to purchase directly. The Purchasing Requisition Request Form shall
include the following:
a. The name, address, telephone number and contact person for the Supplier;
b. Manufacturer or brand, model or specification number of the item;
c. Quantity needed as estimated by the Developer;
d. Any sales taxes associated with such quote;
e. Shipping and handling insurance cost;
f. 100%Performance and Payment Bond Cost;
g. Delivery dates as established by the Developer;
h. Any reduction in the Developer's cost for both the Payment Bond and the Performance
Bond; and
i. Detail concerning bonds or letters of credit provided by the Supplier if included in his
proposal.
The Developer shall include copies of Suppliers' quotations, and specifically reference any
terms and conditions which have been negotiated with the Suppliers' concerning letter of
credit,terms, discounts, or special payments.
4. After receipt of the Purchasing Requisition Request Form, the City or the CRA shall
prepare a Purchase Order for each item of material which the City or the CRA chooses to
purchase directly. The City or the CRA shall issue the Purchase Order directly to the
Supplier. The City or the CRA's Purchase Order shall be accompanied by a copy of the
City or the CRA's Consumer's Certificate of Exemption and a certificate containing the
City or the CRA's name, address, exemption number, effective date and expiration date of
the exemption, and the signature of the City or the CRA's Representative. Pursuant to the
Purchase Order, the Supplier shall provide the required quantities of material at the price
established in the Supplier's quote to the Developer, less any sales tax associated with such
price. The Purchase Order shall also provide for reimbursement of the cost to the Supplier
for providing required shipping and handling insurance from the Supplier to the City or the
CRA for full value of the Purchase Order, unless such insurance costs were included in the
quote provided to the Developer. The Purchase Order shall also require the delivery of the
Owner Furnished Materials on the delivery dates provided by the Developer in the
Purchasing Requisition Request Form.
5. The Developer shall be responsible for all matters relating to the receipt of Owner
Furnished Materials, including, but not limited to: assuring that the correct materials in the
correct amounts are received timely with appropriate warranties; inspecting and accepting
the goods; and unloading, handling, and storing-the materials until installation. The
Developer shall coordinate delivery schedules, sequence of delivery, loading, orientation,
and other arrangements normally required by the Developer for the particular materials
furnished. The Developer shall remain liable for his or her negligence in meeting any of
these obligations.
6. As Owner Furnished Materials are delivered to the Garage Property, or such other City
or CRA designated location, the Developer shall visually inspect all shipments and verify
that all necessary documentation accompanies the shipment and such shipment conforms to
the Purchase Order. The Developer shall verify the receipt and conformance of the
shipment of Owner Furnished Materials in writing; the Supplier shall then forward the
invoice to the City or the CRA for payment.
7. The Developer shall insure that Owner Furnished Materials, conform to the Plans and
Specifications, and are not patently defective. Defective or non-conforming materials shall
not be used, and the Developer shall promptly notify the City or the CRA of the defective
or nonconforming condition so that repair or replacement of those materials can occur
without any undue delay or interruption to the Project. The Developer shall be responsible
for all damages should the Developer fail to perform such inspection and otherwise
incorporates such defective or nonconforming Owner Furnished Materials into the Project.
8. The Developer shall maintain records of all Owner Furnished Materials it incorporates
into the Project from the stock of Owner Furnished Materials in its possession. The
Developer shall account monthly to the City or the CRA for any Owner Furnished
Materials delivered into the Developer's possession, indicating portions of all such
materials which have been incorporated into the Project.
9. The Developer shall be responsible for obtaining and managing all warranties and
guarantees for all materials and products as required by the Contract Documents. All
repair, maintenance or damage-repair calls shall be forwarded to the Developer for
resolution with the appropriate Supplier.
10. Notwithstanding the transfer of Owner Furnished Materials by the City or the CRA to
the Developer's possession,the City or the CRA shall retain legal and equitable title to any
and all Owner Furnished Materials.
11. The transfer of possession of Owner Furnished Materials from the City or the CRA to
the Developer shall constitute a bailment for the mutual benefit of the City or the CRA and
the Developer. The City or the CRA shall be considered the bailor and the Developer the
bailee of the Owner Furnished Materials. The Owner Furnished Materials shall be
considered returned to the Cityor the CRA for purposes of their bailment at such time as
they are incorporated into the Project or consumed in the process of completing the Project.
12. The City or the CRA shall purchase and maintain insurance sufficient to protect against
any loss of or damage to the Owner Furnished Materials. Such insurance shall cover the
full value of any Owner Furnished Materials not yet incorporated into the Project during
the period between the time the City or the CRA first takes title to any of such Owner
Furnished Materials and the time when the last of such Owner Furnished Materials is
incorporated into the Project or consumed in the process of completing the Project. The
City or the CRA shall be named as the insured party and shall receive all proceeds in case
of loss.
13. The City or the CRA shall in no way be liable for any interruption or delay in the
Project, for any defects or other problems with the Project, or for any extra costs resulting
from any delay in the delivery of, or defects in, the Owner Furnished Materials. The
Developer's sole and exclusive remedy shall be an extension of Contract Time in
accordance with this Agreement.
14. On a monthly basis, the Developer shall review all invoices for Owner Furnished
Materials delivered to the Garage Property, or other City or CRA designated locations,
during that month and provide the City or the CRA with an Advisory List indicating the
Developer's concurrence or objection to the City or the CRA's issuance of payment, based
upon the Developer's records of materials delivered and any defects detected in such
materials. The Advisory List shall be accompanied by applicable Purchase Orders,
delivery tickets, invoices, copies of written verification of receipt and conformance
furnished pursuant to Paragraph 7 above, and such other documentation as may be
reasonably required by the City or the CRA. Upon receipt and verification of the Advisory
List, the City or the CRA shall prepare a check drawn to the Supplier. This check shall be
released, delivered and remitted directly to the Supplier within thirty (30) days from receipt
by the City or the CRA of the Advisory List. The Developer agrees to assist the City or the
CRA to immediately obtain partial or final release of waivers as appropriate.
15. If the City or the CRA elects to provide Owner Furnished Materials, the Developer
shall, in accordance with the terms and conditions of this Agreement, execute and deliver
to the City or the CRA a deductive Change Order Request. The deductive Change Order
Request shall reference the full value of all Owner Furnished Materials to be provided by
each Supplier from whom the City or the CRA elected to purchase material directly, plus
all sales taxes associated with such materials, plus any savings to the Developer in the cost
of Payment and Performance Bonds associated with such Owner Furnished Materials.
16. At the end of the Project, in accordance with the Agreement, the City or the CRA shall
provide the Developer with a deductive Change Order for the cost plus applicable sales
taxes of any Owner Furnished Materials not yet reflected in a previously executed Change
Order. The Developer shall return all unused Owner Furnished Materials to the
appropriate Supplier and shall refund all associated monies to the City or the CRA. If the
Developer is unable to facilitate such refund,the City or the CRA shall provide a deductive
Change Order for the cost plus applicable sales taxes of all unused and unreturned Owner
Furnished Materials.
EXHIBIT "A"
CHANGE ORDER
CHANGE ORDER
TO: City of Dania Beach
Dania Beach Community Redevelopment Agency
PROJECT: Dania Beach City Center Redevelopment
DEVELOPER: Downtown Dania Beach Development LLC DATE:
This Change Order will authorize the following change to the Agreement:
The Work as set forth in the Agreement is amended to include the items set forth on
Exhibit "A" attached to this Change Order and by this reference made a part of this
Change Order.
This Change Order constitutes full, final, and complete compensation to the Developer for all costs,
expenses, overhead, and profit, and any damages of every kind that the Developer may incur in
connection with the above referenced changes in the Work, and any other effect on any of the Work
under this Agreement. The Developer acknowledges and agrees that (a) the Guaranteed Maximum
Price of$6,000,000 under the Agreement will be [unchanged] [changed] by this Change Order, and (b)
the schedule for performance of Work will be [unchanged] [changed] by this Change Order. Developer
expressly waives any claims for any additional compensation, damages or time extensions in connection
with the above-referenced changes. Except as expressly modified in this Change Order, all terms of the
Agreement shall remain in full force and effect and shall cover the performance of, and payment for,
any work authorized under this Change Order. Any defined terms not defined in this Change Order
shall have the meanings set forth in the Agreement.
By signing below the parties indicate acceptance of this Change Order as set forth herein.
DOWNTOWN DANIA BEACH, CITY OF DANIA BEACH,
DEVELOPMENT, LLC, a Florida limited a Florida municipal corporation
Liability company
By: By:
Name: City Manager
Title:
DANIA BEACH COMMUNITY
REDEVELOPMENT AGENCY
By:
Chairman
EXHIBIT "B"
REQUEST FOR PAYMENT FORM
REQUEST FOR PAYMENT
PROJECT TITLE: Dania Beach City Center Redevelopment
DESIGN/BUILD AGREEMENT DATED:
PROJECT NO:
Invoice#: Date:
Application is made for payment as shown below, in connection with the Design/Build
Agreement (additional sheets are attached to provide a complete breakdown of the requested
payment):
l. Guaranteed Maximum Price $
2. Net Change by Change Orders $
3. Guaranteed Maximum Price to date (Line I + 2) $
4. Total Completed and Stored to date (see continuation sheet) $
5. Retainage to date (see continuation sheet) $
6. Total Earned less Retainage (Line 4 less Line 5 total) $
7. Less Previous Requests for Payment $
(line 6 from previous Request)
8. Current Payment Due $
9. Balance to Finish (Line I less Line 4) $
The undersigned Developer certifies that to the best of the Developer's knowledge,
information, and belief the Work covered by this Request for Payment has been completed in
strict accordance with the Contract Documents, that all amounts have been paid by the
Developer for work for which previous Requests for Payment were issued and payment
received from the CRA and that the current payment requested herein represents a just estimate
of reimbursements to the contractors, subcontractors, materialmen, vendors, and suppliers for
Work performed and material delivered. The Developer further certifies that there are no
known mechanic's or materialmen's liens outstanding at the date of this request, that all due
and payable bills with respect to the Work and materials have been paid to date or are included
in the amount requested herein and that, except for such bills not paid but so included, there is
no known basis for the filing of any mechanic's or materialmen's liens on the Work, and that
waivers from all contractors, subcontractors, materialmen, vendors and suppliers have been
obtained in such form required by the Design/Build Agreement.
DOWNTOWN DANIA BEACH DEVELOPMENT LLC,
a Florida limited liability company
By:
Name:
Title:
EXHIBIT "B-1"
DRAW SCHEDULE
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EXHIBIT 66B-2"
SCHEDULE OF VALUES
Dania Beach - Schedule of Values
Div 1-General Requirements $644,535
Div 2 -Site Work 303,782
Div 3 -Concrete, Cast In Place 287,300
Div 3 -Concrete, Precast 2,187,919
Div 4- Masonry 2,850
Div 5- Metals 100,110
Div 6-Woods& Plastics 0
Div 7 -Thermal/Moisture Protect 97,300
Div 8- Doors &Windows 86,748
Div 9 - Finishes 152,730
Div 10-Specialties 19,310
Div 11 - Equipment 3,000
Div 12 - Furnishings 0
Div 13 -Special Construction 0
Div 14-Conveying Systems 175,016
Div 15 - HVAC 13,500
Div 15 - Plumbing 90,845
Div 15 - Fire Protection 139,655
Div 16 - Electrical 414,166
Subtotal $4,718,766
Predevelopment 80,000
Design Fees 248,527
Development Fees 851,355
Bond 101,352
Total $6,000,000
EXHIBIT "C"
CERTIFICATE OF SUBCONTRACTOR&
FINAL WAIVER OF LIEN
CERTIFICATE OF SUBCONTRACTOR &
FINAL WAIVER OF LIEN
TO: City of Dania Beach
Dania Beach Community Redevelopment Agency
DEVELOPER: Downtown Dania Beach Development LLC
PROJECT: Dania Beach City Center Redevelopment
DESIGNBUILD AGREEMENT DATE:
The undersigned, being duly sworn, on oath deposes and says under penalty of perjury:
I am the of the corporation or other entity identified below as the
Subcontractor, which entity has executed the attached Release and Waiver, and I certify that the
Subcontractor has paid all employees, contractors and materialmen in full for all labor and
materials supplied by them to, for or under the Subcontractor in connection with the attached
described Project through and including the date of this instrument, except for such persons
listed on the attached sheet in the amount indicated opposite their names, who shall be paid in
full within ten (10) days after the date of this certification.
On behalf of and in the name of the Subcontractor, I further covenant, warrant and represent
that should any claim or lien be filed against the City of Dania Beach, a Florida municipal
corporation (the "City"), or the Dania Beach Community Redevelopment Agency ("CRA") the
Project, the real property upon which the Project is located or against the Developer for
material or labor supplied by, to, for or under the Subcontractor in connection with the
Subcontractor's participation in the construction of the Project, the Subcontractor will
immediately pay and satisfy such claim or lien or furnish a sufficient bond, pursuant to Section
et seq., Florida Statutes, for the release of such lien, and obtain
settlement of any such liens and furnish the City and the CRA and the Developer a signed
instrument fully releasing any such liens. The Subcontractor further agrees to fully indemnify
and hold harmless the City and the CRA, their agents and employees, and the Developer, its
sureties, agents and employees, for any loss, cost or damage, including but not limited to
attorneys' fees, which they may incur by reason of any such claim or lien by, through or under
the Subcontractor.
I further certify on behalf of and in the name of the Subcontractor that the Subcontractor has
complied with all federal, state and local tax laws, including social security laws, and
unemployment compensation laws and workers' compensation laws, insofar as same are
applicable to the performance of the Subcontractor's obligations in connection with the Project.
THAT the undersigned Subcontractor, in consideration of payment made to the undersigned of
all sums due the undersigned for labor or materials supplied prior to, through and including the
date of this release, and in connection with that certain project (the "Project") known as Dania
Beach City Center Redevelopment, which Project is owned or leased by the City, does fully
and finally waive and release any and all liens, claims, actions, and demands, and all rights to
same, against the City and the CRA, the Project, the real property upon which the Project is
located and any and all other property owned by the City, in connection with labor or services
supplied by the undersigned to the Project prior to and through the date of this certification; and
THAT the undersigned Subcontractor does acknowledge and represent that:
1. Through the date of this certification, the undersigned has received total
payments in the amount of $ for labor or
materials supplied to or for the Project; and
2. The undersigned Subcontractor acknowledges receipt of payment in full
of all sums agreed and required to be paid to the undersigned in
connection with the Project for all labor or materials supplied by the
undersigned to or for the Project prior to, through and including the date
of this certification.
This instrument has been executed as of the day of , 20_.
SUBCONTRACTOR:
By:
Name:
Title:
STATE OF FLORIDA )
COUNTY OF BROWARD )
This instrument was acknowledged before me this day of 20 by
who [ ] is personally know to me
or [ ] produced as identification.
Notary Public:
(name typed)
My Commission Expires:
EXHIBIT "D"
CERTIFICATE OF DEVELOPER&
FINAL WAIVER OF LIEN
CERTIFICATE OF DEVELOPER &
FINAL WAIVER OF LIEN
TO: City of Dania Beach
Dania Beach Community Redevelopment Agency
DEVELOPER: Downtown Dania Beach Development LLC
PROJECT: Dania Beach City Center Redevelopment
DEVELOPMENT AGREEMENT DATE:
The undersigned, being duly sworn, on oath deposes and says under penalty of perjury:
I am the of the corporation or other entity identified herein as the
Developer, which entity has executed the attached Release and Waiver, and I certify that the
Developer has paid all employees, subcontractors and materialmen in full for all labor and
materials supplied by them to, for or under the Developer in connection with the above
described Project through and including the date of this instrument, except for such persons
listed on the attached sheet in the amount indicated opposite their names, who shall be paid in
full within ten(10) days after the date of this certification.
On behalf of and in the name of the Developer, I further covenant, warrant and represent that
should any claim or lien be filed against the City of Dania Beach, a Florida municipal
corporation (the "City"), and the Dania Beach Community Redevelopment Agency (the
"CRA") the Project, the real property upon which the Project is located or any other property
owned by the City for material or labor supplied by, to, for or under the Developer in
connection with the Developer's participation in the construction of the Project, the Developer
will immediately pay and satisfy such claim or lien or furnish a sufficient bond, for the release
of such lien, and obtain settlement of any such liens and furnish the City and the CRA a signed
instrument fully releasing any such liens. The Developer further agrees to fully indemnify and
hold harmless the City and the CRA, their agents and employees, from any loss, cost or
damage, including but not limited to attorneys' fees, which they may incur by reason of any
such claim or lien by,through or under the Developer.
I further certify on behalf of and in the name of the Developer that the Developer has complied
with all federal state and local tax laws, including social security laws, and unemployment
compensation laws and workers' compensation laws, insofar as same are applicable to the
performance of the Developer's obligations in connection with the Project.
THAT the undersigned Developer, in consideration of payment made to the undersigned of all
sums due the undersigned for labor or materials supplied prior to, through and including the
date of this release, and in connection with that certain project (the "Project") known as Dania
Beach City Center Redevelopment, located at ,
which Project is owned or leased by the City, does fully and finally waive and release any and
all liens, claims, actions, and demands, and all rights to same, against the City and the CRA, the
Project, the real property upon which the Project is located and any and all other property
owned by the City, in connection with labor or services supplied by the undersigned to the
Project prior to and through the date of this certification; and
THAT the undersigned Developer does acknowledge and represent that:
1. Through the date of this certification, the undersigned has received total
payments in the amount of$ for
labor or materials supplied to or for the Project; and
2. The undersigned Developer acknowledges receipt of payment in full of all
sums agreed and required to be paid to the undersigned in connection with
the Project for all labor or materials supplied by the undersigned to or for the
Project prior to,through and including the date of this certification.
This instrument has been executed as of the_day of , 20_.
DEVELOPER:
DOWNTOWN DANIA BEACH
DEVELOPMENT LLC, a Florida limited
liability company
By:
Name:
Title:
STATE OF FLORIDA )
COUNTY OF BROWARD )
This instrument was acknowledged before me this day of 20 by
g Y
who [ ] is personally know to me
or [ ] produced as identification.
Notary Public:
(name typed)
My Commission expires:
EXHIBIT "E"
CERTIFICATE OF DEVELOPER&
PARTIAL WAIVER OF LIEN
CERTIFICATE OF DEVELOPER &
PARTIAL WAIVER OF LIEN
TO: City of Dania Beach
Dania Beach Community Redevelopment Agency
DEVELOPER: Downtown Dania Beach Development LLC
PROJECT: Dania Beach City Center Redevelopment AGREEMENT DATE:
The undersigned, being duly sworn, on oath deposes and says under penalty of perjury:
I am the of the limited liability company or other entity identified
herein as the Developer, which entity has executed the attached Release and Waiver, and I
certify that the Developer has paid all employees, subcontractors and materialmen in full for all
labor and materials supplied by them to, for or under the Developer in connection with the
above described Project through and including the date of this instrument, except for such
persons listed on the attached sheet in the amount indicated opposite their names, who shall be
paid in full within ten (10) days after the date of this certification.
On behalf of and in the name of the Developer, I further covenant, warrant and represent that
should any claim or lien be filed against the City of Dania Beach, a Florida municipal
corporation (the "City"), and the Dania Beach Community Redevelopment Agency (the
"CRA") the Project, the real property upon which the Project is located or any other property
material or labor supplied b to for or under the Developer in
owned by the City for ma pp y, p
connection with the Developer's participation in the construction of the Project, the Developer
will immediately pay and satisfy such claim or lien or furnish a sufficient bond, for the release
of such lien, and obtain settlement of any such liens and furnish the City and the CRA a signed
instrument fully releasing any such liens. The Developer further agrees to fully indemnify and
hold harmless the City and the CRA, their agents and employees, from any loss, cost or
damage, including but not limited to attorneys' fees, which they may incur by reason of any
such claim or lien by, through or under the Developer.
I further certify on behalf of and in the name of the Developer that the Developer has complied
with all federal state and local tax laws, including social security laws, and unemployment
compensation laws and workers' compensation laws, insofar as same are applicable to the
performance of the Developer's obligations in connection with the Project.
THAT the undersigned Developer, in consideration of payment made to the undersigned of all
sums due the undersigned for labor or materials supplied prior to, through and including the
date of this release, and in connection with that certain project (the "Project") known as Dania
Beach City Center Redevelopment, located at ,
which Project is owned or leased by the City, does fully and finally waive and release any and
all liens, claims, actions, and demands, and all rights to same, against the City and the CRA, the
Project, the real property upon which the Project is located and any and all other property
owned by the City, in connection with labor or services supplied by the undersigned to the
Project prior to and through the date of this certification; and
THAT the undersigned Developer does acknowledge and represent that:
3. Through the date of this certification, the undersigned has received total
payments in the amount of$ for
labor or materials supplied to or for the Project; and
4. The undersigned Developer acknowledges receipt of payment in full of all
sums agreed and required to be paid to the undersigned in connection with
the Project for all labor or materials supplied by the undersigned to or for the
Project prior to, through and including the date of this certification, it being
understood that retainage in the amount $
of is being withheld pursuant to the terms of the Agreement.
This instrument has been executed as of the_day of , 20_.
DEVELOPER:
DOWNTOWN DANIA BEACH
DEVELOPMENT LLC,
a Florida limited liability company
By:
Name:
Title:
STATE OF FLORIDA )
COUNTY OF BROWARD )
This instrument was acknowledged before me this day of 20 by
who [ ] is personally know to me
or [] produced as identification.
Notary Public:
(name typed)
My Commission expires:
EXHIBIT "F"
CERTIFICATE OF SUBCONTRACTOR&
PARTIAL WAIVER OF LIEN
CERTIFICATE OF SUBCONTRACTOR &
PARTIAL WAIVER OF LIEN
TO: City of Dania Beach
Dania Beach Community Redevelopment Agency
DEVELOPER: Downtown Dania Beach Development LLC
PROJECT: Dania Beach City Center Redevelopment AGREEMENT DATE:
The undersigned, being duly sworn, on oath deposes and says under penalty of perjury:
I am the of the corporation or other entity identified below as the
Subcontractor, which entity has executed the attached Release and Waiver, and I certify that the
Subcontractor has paid all employees; contractors and materialmen in full for all labor and
materials supplied by them to, for or under the Subcontractor in connection with the attached
described Project through and including the date of this instrument, except for such persons
listed on the attached sheet in the amount indicated opposite their names, who shall be paid in
full within ten (10) days after the date of this certification.
On behalf of and in the name of the Subcontractor, I further covenant, warrant and represent
that should any claim or lien be filed against the City of Dania Beach, a Florida municipal
corporation (the "City"), and the Dania Beach Community Redevelopment Agency (the
"CRA") the Project, the real property upon which the Project is located or against the
Developer for material or labor supplied by, to, for or under the Subcontractor in connection
with the Subcontractor's participation in the construction of the Project, the Subcontractor will
immediately pay and satisfy such claim or lien or furnish a sufficient bond, pursuant to Section
, et seq., Florida Statutes, for the release of such lien, and obtain
settlement of any such liens and furnish the City, the CRA and the Developer a signed
instrument fully releasing any such liens. The Subcontractor further agrees to fully indemnify
and hold harmless the City and the CRA, their agents and employees, and the Developer, its
sureties, agents and employees, for any loss, cost or damage, including but not limited to
attorneys' fees, which they may incur by reason of any such claim or lien by, through or under
the Subcontractor.
I further certify on behalf of and in the name of the Subcontractor that the Subcontractor has
complied with all federal, state and local tax laws, including social security laws, and
unemployment compensation laws and workers' compensation laws, insofar as same are
applicable to the performance of the Subcontractor's obligations in connection with the Project.
THAT the undersigned Subcontractor, in consideration of payment made to the undersigned of
all sums due the undersigned for labor or materials supplied prior to, through and including the
date of this release, and in connection with that certain project (the "Project") known as Dania
Beach City Center Redevelopment, which Project is owned or leased by the City, does waive
and release any and all liens,claims, actions, and demands, and all rights to same, against the
City, the Project, the real property upon which the Project is located and any and all other
property owned by the City, in connection with labor or services supplied by the undersigned to
the Project prior to and through the date of this certification; and
THAT the undersigned Subcontractor does acknowledge and represent that:
1. Through the date of this certification, the undersigned has received total
payments in the amount of$ for labor or materials
supplied to or for the Project; and
2. The undersigned Subcontractor acknowledges receipt of payment in full
of all sums agreed and required to be paid to the undersigned in
connection with the Project for all labor or materials supplied by the
undersigned to or for the Project prior to, through and including the date
of this certification, it being understood that reta.inage in the amount of
$ is being withheld pursuant to the terms of the
Agreement.
This instrument has been executed as of the day of , 20
SUBCONTRACTOR:
By:
Name:
Title:
STATE OF FLORIDA )
COUNTY OF BROWARD )
This instrument was acknowledged before me this day of 20 by
who [ ] is personally know to me
or [ ] produced as identification.
Notary Public:
(name typed)
My Commission Expires:
EXHIBIT "G"
ASSIGNMENT
ASSIGNMENT
TO: City of Dania Beach
Dania Beach Community Redevelopment Agency
DEVELOPER: Downtown Dania Beach Development LLC
PROJECT: Dania Beach City Center Redevelopment
DEVELOPMENT AGREEMENT DATE:
ASSIGNMENT OF RIGHTS UNDER
SUBCONTRACTOR CONTRACT/SUBCONSULTANT CONTRACT
For and in consideration of the sum of Ten Dollars ($10.00) and other good and
valuable consideration, DOWNTOWN DANIA BEACH DEVELOPMENT LLC, a Florida
limited liability company, whose mailing address is 5 ,
Florida (the "Developer"), does TRANSFER, ASSIGN and CONVEY unto the CITY
OF DANIA BEACH, a Florida municipal corporation, whose mailing address is
, Dania Beach, Florida (the "City") and the Dania
Beach Community Redevelopment Agency (the "CRA"), all of the rights, interests, benefits
and privileges of the Developer under (a) that certain Subcontractor Contract/Subconsultant
Contract(the "Subcontract") dated 20 , by and between the
Developer, and
("the Subcontractor"), a copy of the Subcontract is attached to this Assignment as Exhibit "A"
and made a part of this Assignment, providing for a portion of the design services, labor or
materials that the Developer is obligated to provide the City and the CRA under that certain
Development Agreement (the "Agreement") dated , 20_, for the
design and construction of a project and related improvements in Broward County, Florida (the
"Project"), and (b) any and all payment and performance bonds issued in conjunction with the
Subcontract. However, the City and the CRA do not assume any of the Developer's liabilities,
duties or obligations under the Subcontract.
The foregoing Assignment constitutes a part of the security given to the City and the
CRA by the Developer to secure the Developer's performance of the Agreement.
Notwithstanding anything in this instrument to the contrary, the City and the CRA shall not
exercise any rights under this instrument unless an event of default or other termination shall
have occurred under the provisions of the Agreement. The City and the CRA shall have the
right, but not the duty, in the event of a default or termination pursuant to the terms of the
Agreement, to exercise all of its rights, interests,benefits and privileges under the Subcontract.
Subcontractor agrees with the City and the CRA as follows:
That Subcontractor consents to the foregoing assignment and agrees to notify the CRA
in writing at the same time Subcontractor notifies the Developer of the occurrence of any
failure of payment under the provisions of the Subcontract or of the occurrence of any other
default by the Developer under the provisions of the Subcontract.
That if the City and the CRA notify the Subcontractor in writing that an event of default
by the Developer, or other termination, has occurred under the Agreement, the Subcontractor
shall, at the City and the CRA's request, waive the Developer's default and continue
performance on the City and the CRA's behalf under the Subcontract in accordance with the
terms of the Subcontract, provided that the Subcontractor shall be paid in accordance with the
Subcontract for the following as and when they are due under the Subcontract:
(a) all services, work, labor and materials rendered on the Developer's behalf prior
to the City and the CRA's request;
(b) all services, work, labor and materials rendered on the City and the CRA's
behalf following the City and the CRA's request; and
(c) the amount of retainage, if any, withheld by the City and the CRA from
payments to the Developer made by the City and the CRA prior to the City and
the CRA's request.
That in the event any of Subcontract proceeds are disbursed by the City and the CRA
directly to the Subcontractor, the Subcontractor will receive any such advances and will hold
the same as a trust and for the purpose of paying the costs of the labor performed and
equipment and supplies used in connection with the Project, and the Subcontractor will apply
the same only to payment of such costs and for no other purpose.
That upon the City and the CRA's request, the Subcontractor shall furnish to the City
and the CRA a current list of all persons or firms with whom the Subcontractor has entered into
subcontracts or other agreements relating to the performance of work or furnishing of materials
in connection with the Project which have a value of$1,000 or more, together with a statement
as to the status of each of such subcontracts or agreements and the respective amounts, if any,
owed by the Subcontractor. The Developer consents to the furnishing to the CRA of such list
and statement.
Subcontractor consents to the City and the CRA assigning the City and the CRA's
rights under this Assignment to anyone whom the City and the CRA may choose to complete
the Developer's obligations, including without limitation,the Developer's surety.
That the Cityand the CRA has no obligation to exercise its rights under this
g �
Assignment and furthermore has no obligation to pay Subcontractor unless the City and the
CRA exercises its rights as set forth herein.
That this Assignment does not create third party beneficiary rights under the Agreement
in favor of anyone, including Subcontractor.
IN WITNESS WHEREOF, this instrument shall be effective as of the date of the
Subcontract.
DEVELOPER: SUBCONTRACTOR:
DOWNTOWN DANIA BEACH
DEVELOPMENT LLC, a Florida
By: By:
Name: Name:
Title: Title:
Date: Date:
STATE OF FLORIDA )
COUNTY OF BROWARD )
This instrument was acknowledged before me this day of 20 by
who [ ] is personally know to me
or [ ] produced as identification.
Notary Public:
(name typed)
My Commission Expires:
STATE OF FLORIDA )
COUNTY OF BROWARD )
This instrument was acknowledged before me this day of 20 by
who [ ] is personally know to me
or [ ] produced as identification.
Notary Public:
(name typed)
My Commission Expires:
EXHIBIT "H"
INSURANCE REQUIREMENTS
Developer shall provide or cause to be provided the following insurance and shall also
ensure that the following insurance language shall be included in the Subconsultant Contracts
and Subcontractor Contracts. Prior to commencement of Work certificates of insurance shall
be provided evidencing Developer's and its Subconsultant's and Subcontractor's compliance
with these insurance requirements. Without limiting any of the other obligations or liabilities
of Developer and the Subconsultants and Subcontractors, Developer, Subconsultants, and
Subcontractor shall provide, pay for, and maintain in force until all of the Work is completed
and accepted by the CRA (or for such duration as otherwise specified hereinafter), the
insurance coverages set forth herein.
1. Commercial General Liability Insurance with minimum limits of One Million
Dollars ($1,000,000) per occurrence with respect to Developer, and One Million
Dollars ($1,000,000)per occurrence with respect to Subconsultants.
2. Workers' Compensation insurance to apply for all employees in compliance
with the "Workers' Compensation Law" of the State of Florida and all
applicable federal laws. In addition, the policy(ies) must include:
(a) Employers' Liability with a limit of One Hundred Thousand Dollars
($100,000) each accident.
(b) If any operations are to be undertaken on or about navigable waters,
coverage must be included for the U.S. Longshoremen & Harbor
Workers Act and Jones Act.
3. Comprehensive General Liability with minimum limits of One Million Dollars
($1,000,000) per occurrence combined single limit for Bodily Injury Liability
and Property Damage Liability with respect to Developer, and Two Million
Dollars ($2,000,000) with per occurrence respect to Subcontractors, combined
single limit for Bodily Injury Liability and Property Damage Liability.
Coverage must be afforded on a form no more restrictive than the latest edition
of the Comprehensive General Liability policy, without restrictive
endorsements, as filed by the Insurance Services Office, and must include:
(a) Premises or Operations;
(b) Independent Contractors;
(c) Products or Completed Operations for contracts over Fifty
Thousand Dollars ($50,000.00) contractor shall maintain in force
until at least three (3) years after completion of all work required
under the Agreement, coverage for Products and Completed
Operations, including Broad Form Property Damage;
(d) Explosion, Collapse and Underground Coverages;
(e) Broad Form Property Damage;
(f) Broad Form Contractual Coverage applicable to this specific
Agreement, including any hold harmless or indemnification
agreement;
(g) Personal Injury Coverage with Employee and Contractual
Exclusions removed, with minimum limits of coverage equal to
those required for Bodily Injury Liability and Property Damage
Liability; and
(h) City and Developer are to be expressly included as "Additional
Insureds" with respect to liability arising out of operations
performed for City and Developer by or on behalf of Developer
and Subcontractors or acts or omissions of City or Developer in
connection with general supervision of such operation.
4. Umbrella Liability, general aggregate of Ten Million Dollars ($10,000,000).
5. Business Automobile Liability with minimum limits of One Million Dollars
($1,000,000.00) per occurrence, combined single limit for Bodily Injury
Liability and Property Damage Liability. Coverage must be afforded on a form
no more restrictive than the latest edition of the Business Automobile Liability
policy, without restrictive endorsements, as filed by the Insurance Services
Office, and must include:
(a) Owned Vehicles.
(b) Hired and Non-Owned Vehicles.
6. Builder's Risk Insurance for the construction of above ground buildings or
structures shall be provided by the CRA or the City as determined in their sole
discretion.
All required insurance shall be evidenced by valid and enforceable policies issued by a
company licensed to do business in the State of Florida and otherwise acceptable to the CRA.
The Developer shall not cancel (or permit any lapse under) any policy of required insurance.
Each policy of required insurance shall: (i) contain the agreement of the insurer that the insurer
shall not cancel or materially alter the same without thirty (30) days' prior written notice to
City except in the case of non-payment by the Developer for which ten (10) days' prior written
notice will be provided to City; (ii) be effective for a period from the date of this Agreement
through at least one (1) year after completion of the Work provided under this Agreement,
except for commercial general liability insurance which shall be effective for a period from the
date of this Agreement through at least one (1) year after completion of the Work provided
under this Agreement; and (iii) with respect to the commercial general liability insurance
provided (or caused to be provided) by Developer, this policy shall name the CRA and the City
as an additional insured to provide for third parry vicarious liability claims, and shall be
amended to allow the CRA or the City to make a claim against the policy for errors, omissions
or other liabilities covered by the policy as a result of the performance of the Work by the other
insureds. Insurance shall be provided to the CRA at the times required by Section 10.2 of this
Agreement at which time the Developer shall deliver to CRA a certificate of insurance naming
City and CRA as an additional insured as required under this Agreement for each policy of
required insurance for Comprehensive General Liability, Business Automobile Liability, and
Umbrella Liability. Except for commercial general liability insurance, the minimum coverages
and time periods specified above are not intended, and shall not be construed, to limit any
liability of the Developer to City or CRA under this Agreement. Neither party shall be liable to
the other for loss or damage covered by insurance to the extent that insurance proceeds are
actually available with respect to such loss or damage and to the extent that the applicable
policies of such insurance include the waiver or subrogation (which the parties shall obtain if
available without additional premium). Developer is responsible for the payment of all
deductibles in connection with any claims made under the insurance polices required by this
Agreement. The cost of deductibles paid by Developer shall be included in the Cost of the
Work.
EXHIBIT 66I-1"
PERFORMANCE BOND
PERFORMANCE BOND
TO: City of Dania Beach
Dania Beach Community Redevelopment Agency
DEVELOPER: Downtown Dania Beach Development LLC
PROJECT: Dania Beach City Center Redevelopment DEVELOPMENT
AGREEMENT DATE:
STATE OF FLORIDA
COUNTY OF BROWARD )
KNOW ALL MEN BY THESE PRESENTS: That DOWNTOWN DANIA BEACH
DEVELOPMENT, LLC, a Florida limited liability company, of the County of Broward, and
State of Florida, as Principal, and , authorized, licensed and admitted
to do business under the laws of the State of Florida to act as surety on bonds, as Surety, are
held and firmly bound unto the Dania Beach Community Redevelopment Agency, a public
body corporate and politic created pursuant to Part III of Chapter 163, Florida Statutes (the
"CRA") and the City of Dania Beach, a Florida municipal corporation (the "City"), as obligee,
in the penal sum of Dollars ($ ) for the payment
whereof, the Principal and Surety bind themselves, and their heirs, administrators, executors,
successors and assigns,jointly and severally,by these presents:
WHEREAS, the Principal has entered into that certain Development Agreement with the CRA
and the City, dated the day of , 20 , for the construction of a
Dania Beach City Center Redevelopment Project (the "Agreement"), which Agreement is by
reference made a part of this Obligation as fully and to the same extent as if copied at length in
this Obligation.
NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION, IS SUCH THAT, if the
Principal shall faithfully perform the Agreement and shall in all respects duly and faithfully
observe and perform all and singular the covenants, conditions, warranties and agreements in
and by the Agreement agreed and covenanted by the Principal to be observed and performed,
and according to the true intent and meaning of the Agreement, then this obligation shall be
void; otherwise to remain in full force and effect,
Whenever Principal shall be, and declared by the CRA to be in default under the Agreement,
the CRA having performed its obligations under the Agreement, the Surety may promptly
remedy the default, or shall promptly:
(1) Complete the Agreement in accordance with the terms and conditions; or
(2) Obtain a bid or bids for completion of the Agreement in accordance with its terms and
conditions, and upon determination by Surety of the lowest responsible bidder, or, if the CRA
elects, upon determination by the CRA and the Surety jointly of the lowest responsible bidder,
arrange for a contract between such bidder and Surety for completion of the Agreement in
accordance with the terms and conditions, and make available as work progresses (even though
there should be a default or a succession of defaults under the contract or contracts of
completion arranged under this contract or contracts of completion arranged under this
Paragraph) sufficient funds to pay the cost of completion less the balance of the Agreement
price; but not exceeding, including other costs and damages for which Surety may be liable, the
amounts set forth in the first paragraph above. The term "balance of the Agreement price" as
used in this Paragraph, shall mean the total amount payable by the CRA to Developer under the
Agreement and any amendments, less the amount paid by the CRA to Developer and less
amounts withheld by the CRA pursuant to its rights under the Agreement.
Surety, for value received, stipulates and agrees that no change, extension of time, alteration or
addition to the terms of the Agreement, or to the work performed under the Agreement, or the
plans, specifications, or drawings accompanying the same, shall in any way affect its obligation
on this bond, and it does waive notice of any such change, extension of time, alteration or
addition to the terms of the Agreement, or to the work to be performed under the Agreement
and further agrees to all of the terms contained in the Agreement.
IN WITNESS WHEREOF, the Principal and Surety have signed and sealed this
instrument this day of , 20_.
PRINCIPAL SURETY
DOWNTOWN DANIA
BEACH DEVELOPMENT, LLC,
a Florida limited liability company
By:
Name:
Its:
By:
Name:
Title:
EXHIBIT "I-2"
PAYMENT BOND
LABOR AND MATERIAL PAYMENT BOND
TO: City of Dania Beach
Dania Beach Community Redevelopment Agency
DEVELOPER: Downtown Dania Beach Development,LLC
PROJECT: Dania Beach City Center Redevelopment DEVELOPMENT
AGREEMENT DATE:
STATE OF FLORIDA )
COUNTY OF BROWARD )
KNOW ALL MEN BY THESE PRESENTS: That DOWNTOWN DANIA BEACH
DEVELOPMENT, LLC, a Florida limited liability company, of the County of Broward, and
State of Florida, as Principal, and , authorized, licensed and admitted
to do business under the laws of the State of Florida to act as surety on bonds, as Surety, are
held and firmly bound unto the Dania Beach Community Redevelopment Agency, a public
body corporate and politic created pursuant to Part III of Chapter 163, Florida Statutes (the
"CRA") and the City of Dania Beach, a Florida municipal corporation (the "City"), as obligee,
in the penal sum of Dollars ($ ) for the payment
whereof, the Principal and Surety bind themselves, and their heirs, administrators, executors,
successors and assigns,jointly and severally, by these presents:
WHEREAS, the Principal has entered into that certain Development Agreement with the CRA
and the City, dated the day of 20_, for the construction of a Dania Beach City
Center Redevelopment Project (the "Agreement"), which Agreement is by reference made a
part of this Obligation as fully and to the same extent as if copied at length in this Obligation.
NOW, THEREFORE, THE CONDITION OF THIS BOND IS THAT PRINCIPAL:
1. Promptly makes payments to all lienors supplying labor, material, and supplies used directly
or indirectly by Principal in the prosecution of the work provided in the Agreement; and
2. Pays the CRA and the City all loss, damage, expenses, costs, and attorney's fees, including
appellate proceedings, that the CRA and the City sustains because of default by Principal under
the Agreement;
Then this bond is void; otherwise, it remains in full force.
Any changes, extensions of time, alterations or additions in or under the Agreement, contract
documents, plans, specifications or drawings, or the work to be performed under the
Agreement, and compliance or noncompliance with formalities connected with the Agreement
or with the changes do not affect Surety's obligations under this Bond, and Surety does waive
notice of any such changes, extensions of time, alterations or additions in or under the
Agreement, contract documents, plans, specifications or drawings, or the work to be performed
under the Agreement.
This
Bond is filed in accordance with Section 713.23, Florida Statues, or Section 255.05,
Florida Statutes, whichever or both as may be applicable.
IN WITNESS WHEREOF, the Principal and Surety have signed and sealed this
instrument this day of , 20_.
PRINCIPAL SURETY
DOWNTOWN DANIA BEACH
DEVELOPMENT, LLC,
a Florida limited liability company
By: By:
Name: Name:
Title: Its:
I
EXHIBIT " 99
PREVAILING WAGE ORDINANCE
The following Ordinance is applicable to this Agreement:
CITY OF DANIA BEACH PREVAILING WAGES ORDINANCE, SECTION 8-141,
CITY CODE OF ORDINANCES
Sec. 8-141. Rate of wages,fringe benefits on city construction contracts.
(a) Establishment of minimum wages. Every construction contract in excess of fifty thousand
dollars ($50,000.00) to which Dania Beach is a party shall include a provision that the rate of
wages and fringe benefits, or cash equivalent, for all laborers, mechanics and apprentices and
similar jobs (i.e., non-office), listed by the department of labor, employment standards
administration, wage and hour division and employed by any contractor or subcontractor on the
work covered by the contract shall not be less than the prevailing rate of wages and fringe
benefit payments or cash equivalent for similar skills or classifications of work as established
by the general wage determinations issued under the Davis-Bacon and Related Acts, U.S.
Department of Labor, Employment Standards Administration, Wage and Hour Division, for
Broward County, Florida.
(b) Implementation of the department of labor general wage determinations. The prevailing
wage rate and fringe benefit payments to be used in the implementation of this section shall be
those last published by the U.S. Department of Labor as noticed in the federal register and
reported in the general wage determinations issued under the Davis-Bacon and Related Acts
prior to the date of issuance of specifications by Dania Beach in connection with its invitation
for bids.
(c) Notice requirement. On the date an employee commences work on a construction
contract to which this section applies, the contractor shall be required to post a notice in a
prominent place at the work site stating the requirements of this section.
(d) Preemption by federal funding. When construction contracts involve federal funding or
are otherwise subject to the provisions of the Davis-Bacon Act (40 U.S.C. 276(a)), this section
shall not apply; and the minimum wages to be paid the various classes of laborers, mechanics
and apprentices shall be based upon the wages determined by the secretary of labor in
accordance with the Davis-Bacon Act (40 U.S.C. 276(a)).
e Exceptions. The provisions of this section shall not apply t an existing( ) p p pp y o y contract or
construction project in which a notice for bids or request for proposals has been advertised in
the public media prior to the effective date of this section or to any developer agreement
whereby Dania Beach is requiring the construction of certain improvements including, but not
limited to, road construction, as condition of the issuance of a development permit or to any
construction project performed by Dania Beach utilizing its own employees.
(Ord. No. 23-98, § 1, 12-8-98)
EXHIBIT "K"
TRENCH SAFETY FORM
ACKNOWLEDGMENT OF CONFORMANCE
WITH
FLORIDA TRENCH SAFETY ACT
To the City of Dania Beach, Florida:
, Contractor, acknowledges and agrees that
as Contractor for the City of Dania Beach, Florida, which may or will be working within the
limits of the City of Dania Beach, Florida, that it has the sole responsibility for compliance with
all requirements of the Florida Trench Safety Act, Section 553.60 et seq. Florida Statutes, and it
agrees to indemnify and hold harmless the City of Dania Beach, Florida, its officials,
employees, and its agents against any and all legal liability or loss which the City of Dania
Beach, Florida may incur due to the Contractor's failure to comply with such Act. The cost of
compliance with all such requirements has been included in the Bid.
CONTRACTOR:
Witness Name of Contractor
Print Name Signature
Witness Print Name,Title
, 200
Print Name Date
(CORPORATE SEAL)
END OF TRENCH SAFETY ACKNOWLEDGMENT
FIRST AMENDMENT TO DEVELOPMENT AGREEMENT
THIS FIRST AMENDMENT TO DEVELOPMENT AGREEMENT (this
"Amendment") dated as of t L' : 1 t:,> , 2011, is entered into by and among the
DANIA BEACH COMMUNITY REDEVELOPMENT AGENCY, a public body corporate
and politic created pursuant to Part III of Chapter 163, Florida Statutes, having an address at 100
West Dania Beach Boulevard, Dania Beach , Florida 33004 (the "CRA"), the CITY OF DANIA
BEACH, FLORIDA, a Florida municipal corporation, having an address at 100 West Dania
Beach Boulevard, Dania Beach , Florida 33004 (the "City"), and DOWNTOWN DANIA
BEACH DEVELOPMENT, LLC, a Florida limited liability company, having an address at 3001
W. Hallandale Beach Boulevard,Hallandale Beach,Florida 33009 ("Developer").
RECITALS
1. The CRA, the City and the Developer entered into that certain Development
Agreement dated as of November 29, 2009.
2. The CRA, the City and the Developer have agreed to modify certain provisions of
the Development Agreement, on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants described above and the
agreements contained below, and for other good and valuable consideration, the receipt and
sufficiency of which is acknowledged, the parties agree as follows:
1. The above recitals are true and correct and are incorporated herein as if set forth
in full.
2. All defined terms in this Amendment shall have the same meaning as in the
Development Agreement, except as otherwise noted.
3. Section 1.9 of the Development Agreement is hereby deleted in its entirety and
the following is hereby inserted in its place and stead:
"1.9 Entry Roadway. Developer has acquired the real property described on
Exhibit 118" attached to this Agreement(the "Entry Roadway Property") and agrees to convey the
Entry Roadway Property to the City free and clear of all liens and encumbrances pursuant to a
right of way deed acceptable to the City in its sole discretion. The design and construction of the
roadway entrance feature described in the attached Exhibit "9" entry roadway plans (the "Entry
Roadway Plans") shall be completed by the Developer at the sole cost and expense of the CRA,
subject to receipt of funding for completion of same by the CRA from Broward County, Florida
(the "County"). The cost for the completion of such Work shall not exceed the amount received
in funding from the County for this purpose, and all Work for the Entry Roadway shall be
completed within twelve (12) months of receipt of such funding. Should the CRA not receive
the necessary funds for completion of the Entry Roadway Property from the County, then the
design and construction by the Developer of the roadway entrance feature as described in the
Entry Roadway Plans shall be at the sole cost and expense of Developer and shall be completed
by January 1, 2015."
4. Exhibit "8" of the Development Agreement, Entry Roadway Property, is hereby
deleted and replaced with the attached Exhibit"8".
5. Section 1.10 of the Development Agreement is hereby deleted in its entirety;
provided, however, that should the CRA not receive the necessary funds for completion of the
Entry Roadway Property from Broward County, Florida, then Section 1.10 shall be
reincorporated into the Development Agreement.
6. Except as amended and modified by this Amendment, all of the terms, covenants,
conditions, and agreements of the Development Agreement shall remain in full force and effect.
In the event of any conflict between the provisions of the Development Agreement and the
provisions of this Amendment, this Amendment shall control.
[Remainder of page intentionally left blank.]
2
IN WITNESS WHEREOF, this Amendment is executed as of the date first above set forth:
DEVELOPER
DOWNTOWN DANIA BEACH DEVELOPMENT LLC,
a Florida_limited liability company
By:
Name: C 1
Title: by- 1 y\L-) Y
Dated: February F C' , 2011
CITY:
CITY OF DANIA BEACH,
a Florida municipal corporation
Robe aldwin, City Manager
Dated: February ' , 2011
5 Fi�rr.
ATTEST:
rt �
By:
Louise Stilson, CMC, City Clerk
Approved as to form and I gal sufficiency:
By: '
Thomas J. AiAbro City Atto6ey
r
3
CRA:
DANIA BEACH COMMUNITY REDEVELOPMENT AGENCY
By: a
C. K. Acllye-a;f hairman
Dated: February , 2011
ATTEST:
�. DANIA BEACH
COMMYNITY REOEVEIOPMENT AOENCV
By. L",LAc
Louise Stilson, CRA Secretary
WEISS SEROTA HELF PASTORIZA COLE &BONISKE, P.L.
By: N,
CRA qomey
4
EXHIBIT "8"
ENTRY ROADWAY PROPERTY
5
COUSINS SURVEYORS & ASSOCIATES, INC. PROJECT NUMBER 6290-099
3921 SW 47TH AVENUE, SUITE 1011 1 ^�-
DAVIE, FLORIDA 33314 CLIENT
CERTIFICATE OF AUTHORIZATION : LE IY 6448 GREENHILL DEVELOPMENT
PHONE (954) 689-7756 FAX 954 689-7799 COMP,
LAND DESCRIPTION AND SKETCH
LAND DESCRIPTION:
ALL OF LOT 10 AND A PORTION OF LOTS S. 11 AND 12, BLOCK 22 OF 'MAP OF THE TOWN OF
MODELO% NOW DANIA, ACCORDING TO THE PLAT THEREOF,AS RECORDED IN PLAT BOOK 8 AT
PAGE 49. OF THE PUBLIC RECORDS OF DADE COUNTY, FLORIDA. BEING MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
BEGIN AT THE NORTHWEST CORNER OF SAID LOT 10;
THENCE NORTH 90`00'00' EAST ALONG THE NORTH LINE OF SAID LOTS 9 AND 10, A DISTANCE
OF 202.00 FEET;
THENCE SOUTH 00'OVOO' EAST ALONG THE WEST RIGHT-OF-WAY LINE OF SOUTH FEDERAL
HIGHWAY, A DISTANCE OF 60,00 FEET;
THENCE SOUTH 90'00'00'WEST.A DISTANCE OF 202.DG FEET;
THENCE NORTH 01701'00"WEST ALONG THE WEST LINE OF SAID LOTS 10 AND 11, AND ALONG
THE EAST RIGHT OF WAY LINE OF(COPENHAGEN AVENUE) S.W. FIRST AVENUE, A DISTANCE OF
60.00 FEET TO THE POINT OF BEGINNING.
SAID LANDS SITUATE, LYING AND BEING IN THE CITY OF DANIA BEACH, BROWARD COUNTY.
FLORIDA; CONTAINING 12,120 SQUARE FEET, (0.2782 ACRE) MORE OR LESS.
LEGEND:
CKO CHECKED BY R RADIUS
OWN DRAWN BY A ARC DISTANCE
FB/PG FIELD BOOK AND PAGE CENTRAL ANGLE
POB POINT OT BEGINNING
POC PAINT OF COMMENCEMENT
P.B. PLAT BOOK
B.C.R. BROWARO COUNTY RECORDS
D.C.R. DADE COUNTY RECORDS
waits I HEREBY CERTIFY THAT THE ATTACHED'LAND DESCRIPTION AND SKETCH'
IS TWA AND CORRECT TO THE REST OF MY KNOWLEDGE AND BEUEF AS
I. NOT VALID WITHOUT THE SIGNATURE AND TOE ORIGINAL RAISED SEAL OF PREPARED UNDER MY Omcc7ION IN FEBRUARY,2D11.I FURTHER COITDY
A FLORIDA LICENSED SURVEYOR AND MAPPER. 1HAT THIS"LARD DESCRMTION AND SKETCH'MELTS THE MINIMUM
TECHNICAL STANDARDS FOR SURVEYM IN THE STATC OF FLORIDA
3. SAMM SHOWN HEREON WERE MDT ABSTRACTED FOR RIGHTS-OF-WAY, ACCORDING TO CHAPTER SJ-17 OF THE FLORKIA ADMINISTRATIVE CODE.
EASEMENTS,OWNERSHIP,OR OTHER INSTRUMENTS OF RECORD. PURSUANT TO SECTION 472.027.FLORIDA STATUTES.SUBJECT TO THE
DATA SHOWN HEREON
lIONS
A. THE LAND DESCRIPTION SNOWW HEREONPREPARED WAS ITT THE SURVEYOR. FOR THE A NOTED HEREON,
5. BEARINGS SHOWN HEREON ARE AMMER.THE NORTH LINE OF BLOCK 22. RICHARD t.Cmm
'MAP Of TOWN OF MODELA'.P.B.6.PC.21,O.C.R.BEARS EAST. PROFESSIONAL SURVEYOR AND MAPPER
FLORIDA REMSIRAIION NO.4188
REVISIONS DATE FB PG DWN CKD PROPERTY ADDRESS
LAND DESCRIPTION t SKETCH O2/a/11 ---- AV REC DANIA BEACH CITY CENTER
LAND DESCRIPTION
& SKETCH SCALE: N/A
SHEET 1 OF 2
6
COUSINS SURVEYORS & ASSOCIATES, INC. PROJECT NUMBER ; szsD o9
3921 SW 47TH AVENUE, SUITE 1011
DAVIE, FLORIDA 33314 CLIENT
CERTIFICATE OF AUTHORIZATION : LB # 6448 GREENHILL DEVELOPMENT
PHONE (954) 689-7766 FAX {954 689-7799 COMPANY
LAND DESCRIPTION AND SKETCH
�COPENHAGEN AVENUE_ PLAT
S.W.�tFIRST AVENUE
E RIQHT—OF—WAY LINE N 00 01'0D" W MOO'•LDT 1a IWEST LINE—LOT 11 Y2S OR—LOT 10 EST LINE—LOT 7
m
"'
O'
q Fo c
{ DAm (c
.,...�,.,.,,.. _,,,_........_. .,,.,,.._.... .,�..,,....... ... ...... _............._..................:
1� e.
rn
0 Iry I c
o '
C
I I
LOTat _ Ib
13T UNE—tOT 12 g 1 £AST LINE—LOT 9 ..:...--JO�STSI•iHE �Q.�9 J_
s 60.00' u
SOUTH FEDERAL HIGHWAY
CHICAGO AVENUE (PLAT)
REVISIONS DATE F8 PG I DWN CKD PROPERTY ADDRESS
LAND DLSCRI"M•elan— 02la4j11 ---- Av KC DANIA BEACti CITY CENTER
LAND DESCRIPTION
& SKETCH SCALE: 1"= 30'
SHEET 2 OF 2
7