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Funding Agreement a FUNDING AGPIEEMENT This Funding Agreement is executed as of the Effective Date (as hereafter defined) by and between the City of Miami Beach, a Florida municipal corporation, ("City"), and South Beach Ocean Parcel Ltd.; a ("SBOP")(Collectively, the City and SBOP may also be referred to herein as the "Parties," or each individually as a "Party"). RECITALS A. City and SBOP entered into that certain letter agreement, dated March 11, 2005 (the "Letter Agreement"), to resolve that certain lawsuit, styled South Beach Ocean Parcel II, Ltd. V. City of Miami Beach, Florida, Case No. 08-10129 CA 40. B. Among other things, the Letter Agreement required SBOP to construct "Sunrise Plaza" as defined in the Letter Agreement, or to enter into an Escrow Agreement, as set forth in the Letter Agreement. C. "Sunrise Plaza" is now known as "Sunrise Pedestrian Connection" ("Sunrise Pedestrian Connection" or the "Project"). D. The Parties have agreed to amend the Letter Agreement, as set forth in that certain Amendment No. 1 to Letter Agreement, dated l 2011 ("Amendment"). rYlcu� E. Pursuant to the Amendment, upon execution of the Amendment SBOP will pay the City $347,000 (SBOP Payment), representing the City's estimated amount of the Sunrise Pedestrian Connection Construction Costs (as hereafter defined). F. Pursuant to the Amendment, the City shall also issue a Final Certificate of Occupancy (C.O-.) for Sub-Phase II(B). G. SBOP has agreed to make the SBOP Payment to the City in accordance with the terms of this Funding Agreement. Now, therefore, City and SBOP agree as follows: 1. Incorporation of Recitals. City and SBOP acknowledge and agree that the Recitals are correct, and they are hereby incorporated into and made a part of this Agreement. 2. .Definitions. The following terms, as used in this Funding Agreement, shall have the following meanings, f' NvJ Effective Date: means�l _ft , 2011. Force "Force Majeure" shall mean any delay occasioned by superior Majeure: or irresistible force occasioned by violence in nature without the interference of human agency such as hurricanes, tornadoes, floods, loss caused by fire and other similar unavoidable casualties; or by changes in Federal, State or 550646.1 A ' local laws, ordinances, codes or regulations enacted after the date of this Agreement ; or other causes beyond the parties' control which have, or may be reasonably expected to have, a material adverse effect on the Project; or on the rights and obligations of the parties under this Agreement and which, by the exercise of due diligence, such parties shall not have been able to avoid: provided, however, that inclement weather (except as noted above), the acts or omissions of sub- consultants/sub-contractors, market conditions, labor conditions, construction industry price trends, and similar matters which normally impact on the construction process SHALL NOT be considered a Force Majeure. If the City is delayed.in performing any obligation under this Agreement due to a Force Majeure, the City will not be liable and/or responsible to SBOP for any delay, damage, loss, failure, or inability to perform caused by such Force Majeure if notice is provided to SBOP within thirty (30) days of the date on.which the City gains actual.knowledge of the event of Force Majeure that the City is unable to perform. Project (also means the design, permitting, development, and construction referenced as of that. certain public space known as Sunrise Pedestrian Sunrise Connection, at the eastern terminus of Biscayne Street. Pedestrian Connection): SBOP means the $347,000 payment to be made by SBOP to the Pavment: City, as SBOP's payment for the Sunrise Pedestrian Connection Construction Costs. No further payments will be required by SBOP. Sunrise means all costs of construction (hard and soft costs) incurred Pedestrian by the City for the Sunrise Pedestrian Con section, including Connection but not limited to, design, permitting, general conditions, Construction change orders, and cost overruns. The Sunrise Pedestrian Costs: Conmection Construction Costs were prepared by the City and are estimated to be equal to the SBOP Payment. 3. SBOP Payment. Simultaneously with the execution of this Funding Agreement, and the Amendment, SBOP has delivered to City the SBOP Payment. City acknowledges receipt of the SBOP Payment. City shall have the right to co-mingle the SBOP Payment with other funds. SBOP shall not be entitled to receive any interest, if any, that accrues thereon. City shall return to SBOP an), unused portions of the SBOP Payment (if any) that remains after issuance of 550646.1 a a Final Certificate of Completion (or Occupancy, as determined by the City) of the Project, in accordance with the terms of this Agreement and the Amendment. 4. Use of SBOP Payment. City shall use the SBOP Payment solely for the purpose of paying the Sunrise Pedestrian Connection Construction Costs. City shall be solely responsible for all aspects the construction of Sunrise Pedestrian Connection including, but not limited to, design, permitting and construction. City shall have absolute control of the SBOP Payment, and over the means, manner, and methods for construction of the Project. City shall provide SBOP with such supporting documentation, as City may determine in its sole and reasonable discretion, regarding completed construction on portions of the Project (as the Project progresses), prior to making payments for such portions from the SBOP Payment. Following completion of construction of the Project, as evidenced by the issuance of a Final Certificate of Completion (or Occupancy, as determined by City) for the Project, SBOP shall be permitted, upon reasonable written notice to the City, and at SBOP's sole cost and expense, to review all construction documents associated with the Project. Following the issuance of a.Final Certificate of Completion (or Occupancy, as determined by City) for the Project, City shall return an), unused portions of the SBOP Payment, if any, to SBOP within ten (10) days of completion of the Project. 5. Timeframe for Completion. The City shall use reasonable efforts to obtain all required permits for the Project within six (6) months of the Effective Date. The City shall also use reasonable efforts to complete construction of the Project, as such completion is defined in the Amendment, within twelve (12) months of the Effective Date. Notwithstanding the preceding, and excluding events of Force Majeure, as defined herein, if the City fails to complete construction of the Project within twenty-four (24) months of the Effective Date, it shall return all remaining funds from the SBOP Payment to SBOP within five (5) days of receipt of written demand, and thereafter the parties shall have no further liability to such other with regard to the Project. 6. Successors and Assigns Bound. This Agreement shall be binding upon City and SBOP and their respective successors and assigns. 7. No Third Partv Beneficiarv. This Funding Agreement is intended solely for the benefit of City and SBOP and their respective successors and assigns, and no third party shall have any rights or interest in this Funding Agreement. 8. No Aaencv or Partnership. Nothing contained in this Funding Agreement shall constitute City as a joint venturer, partner or agent of SBOP or render City liable for any debts, obligations, acts, omissions, representations or contracts of SBOP. 9. Amendment and Waiver. This Funding Agreement may not be modified except by written instrument signed by both City and SBOP. 10. . Notices. Any notice or other communications required or permitted to be given under this Funding Agreement must be in writing and shall be effectively given or delivered if (i) hand delivered to the addresses for City and SBOP stated below, (ii) sent by certified or registered United States Mail, return .receipt requested, to said addresses, or (iii) sent by J 550646.1 a nationally recognized overnight courier (such as FedEx, UPS Next-day Air or Airborne Express), with all delivery charges paid by the sender and signature required for delivery, to said address. Any notice mailed shall be deemed to have been given upon receipt or refusal thereof. Notice effected by hand delivery shall be deemed to have been given at the time of actual delivery. To the City: Jorge Gonzalez City Manager 1700 Convention Center Drive, 4t1i Floor Miami Beach, FL 33 139 With a cop}, to: Jose Smith City Attorney 1700 Convention Center Drive 4t1i Floor Miami Beach, FL 33139 To SBOP: Ian Bruce Eichner South Beach Ocean Parcel, Ltd. 590 Madison Ave. 26t" Floor New York City, New York 10022 With a't;op),to: Joseph L. Rebak, Esq. Tew Cardenas LLP - 1441 Brickell Ave. 15"' Floor Miami, FL 33131 11. Severability. The invalidity, illegality, or unenforceability of any provision of this Funding Agreement pursuant to judicial decree shall not affect the validity or enforceability of any other provision of this Agreement, all of which shall remain in full force and effect. 12. Governing Law and Venue. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Florida, both substantive and remedial, without regard to principles of conflict of laws. The exclusive venue for any litigation arising out of this Agreement shall be Miami-Dade County, Florida, if in state court, and the U.S. District Court, Southern District of Florida, if in federal court. BY ENTERINGANTO THIS AGREEMENT, CITY AND SBOP EXPRESSLY WAIVE ANY RIGHTS EITHER PARTY MAY HAVE TO A 4 5 50646.1 TRIAL BY .WRY OF ANY CIVIL LITIGATION RELATED TO; OR ARISING OUT OF THIS AGREEMENT. 13. Nature of Agreement. This Funding Agreement supplements the provisions of the Letter Agreement and Amendment to Letter Agreement; all of which remain in full force and effect and are not superseded hereby. [REMAINDER OF PAGE LEFT INTENTIONALLY BLANK] 5 50646.1 IN WITNESS WHEREOF, City and SBOP have caused this Funding Agreement to be executed and delivered as of the Effective Date. CITE' OF MIAMI BEACH, FLORIDA, a municipal corporation of the State of Florida By: J glwnez ssista t City Manager uthorized Agent e: ATTEST: Y: IK Date: D 1— [SBOP signature page follows] FORM�N E &FOR CU7MV 6 6 550646.1 i S©UTI-i , LTD. By: Ln Bruce Eichner Manabing, Member Date: 5-110 2011 ATTEST: By: Date: 5'-116 / 7 550646.1