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R7A Marina Park Commission Memorandum Resolutions- R7 A MIAMI BEACH COMMISSION MEMORANDUM TO: Honorable Mayor and Members of the City Commission FROM: Jimmy L. Morales, City Manager and Raul J.Aguila, City Attorney DATE: July 29, 2020 10:05 a.m. Second Reading Public Hearing SUBJECT: MARINA PARK PROJECT -(1) DEVELOPMENT AGREEMENT, (2)SALE OF PROPERTY, (3) NEW MARINA LEASE, AND (4) VACATION OF RIGHT OF WAY: 1. A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING, FOLLOWING SECOND READING/PUBLIC HEARING, A DEVELOPMENT AGREEMENT AS AUTHORIZED UNDER SECTION 118-4 OF THE CITY CODE, AND SECTIONS 163.3220 — 163.3243, FLORIDA STATUTES, BY AND AMONG THE CITY, MARINA PARK RESIDENTIAL, LLC AND MARINA PARK COMMERCIAL, LLC (JOINTLY AND SEVERALLY, THE "DEVELOPER"), WHICH DEVELOPMENT AGREEMENT: (1) DELINEATES CONDITIONS FOR THE DEVELOPMENT OF THE CITY-OWNED PROPERTIES LOCATED AT 300-390 ALTON ROAD, THE CURRENT UPLAND SITE OF THE MIAMI BEACH MARINA(FOLIO NOS. 02-4203-009-9210, 02-4203-000- 0010, AND 02-4203-009-9250) (COLLECTIVELY, THE "DEVELOPMENT SITE"), WITH SUCH DEVELOPMENT SITE LIMITED TO A MAXIMUM FLOOR AREA OF 319,802 SQUARE FEET(OF WHICH THERE SHALL BE A MAXIMUM OF APPROXIMATELY 275,000 SQUARE FEET FOR RESIDENTIAL USES AND APPROXIMATELY 45,000 SQUARE FEET FOR RETAIL, RESTAURANT, OFFICE AND MARINA USES), WITH THE BUILDING CONSTRUCTED THEREON LIMITED TO UP TO 385 FEET IN HEIGHT, WITH UP TO 60 RESIDENTIAL UNITS, AND WHICH SHALL INCLUDE AN AT-GRADE PARK CONSISTING OF AT LEAST 1.0 ACRES (THE "MARINA PARK PROJECT"); (2) MEMORIALIZES THE CONDITIONS FOR THE CITY'S SALE TO MARINA PARK RESIDENTIAL, LLC OF THE PORTION OF THE DEVELOPMENT SITE, AND AIR PARCEL, WITHIN WHICH THE APPROXIMATELY 275,000 SQUARE FOOT RESIDENTIAL PORTION OF THE MARINA PARK PROJECT IS TO BE CONSTRUCTED ("SALE OF RESIDENTIAL PARCEL"), AND THE CITY'S NINETY-NINE (99) YEAR LEASE TO MB MARINA PARK, LLC, AN AFFILIATE OF SUNTEX MARINA INVESTORS, LLC, OF THE DEVELOPMENT SITE (EXCLUDING THE RESIDENTIAL PARCEL) AND ASSOCIATED LEASE OF SUBMERGED LANDS FOR MARINA USE (THE "MARINA LEASE OR "NEW LEASE"); (3) MEMORIALIZES CONDITIONS FOR VACATING THE Page 764 of 2461 WESTERN HALF OF THE CITY'S RIGHT-OF-WAY AT ALTON ROAD ADJACENT TO THE DEVELOPMENT SITE, PURSUANT TO SECTION 82- 37 OF THE CITY CODE AND SECTION 1.03(B)(4) OF THE CITY CHARTER (COLLECTIVELY, THE "CITY RIGHT-OF-WAY AREA"); AND (4) PROVIDES FOR THE DEVELOPER'S DESIGN, PERMITTING, AND CONSTRUCTION OF THE MARINA PARK PROJECT, INCLUDING RESILIENCY ENHANCEMENTS AND OTHER CAPITAL IMPROVEMENTS, AT DEVELOPER'S SOLE COST AND EXPENSE; FURTHER, AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE THE DEVELOPMENT AGREEMENT, WITH THE FOREGOING DEVELOPMENT AGREEMENT SUBJECT TO AND CONTINGENT UPON APPROVAL OF THE MARINA LEASE AND THE SALE OF THE RESIDENTIAL PARCEL BYA MAJORITY OF THE VOTERS VOTING IN A CITYWIDE REFERENDUM, PURSUANT TO SECTION 1.03(B)(1)OF THE CITY CHARTER. 2. A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING, FOLLOWING SECOND READING/PUBLIC HEARING, PURSUANT TO SECTION 82-37(A)(2) OF THE CITY CODE, A PURCHASE AND SALE AGREEMENT ("PSA") BETWEEN THE CITY OF MIAMI BEACH ("CITY") AND MARINA PARK RESIDENTIAL, LLC (THE "PURCHASER"), IN CONNECTION WITH THE PROPOSED DEVELOPMENT OF THE MARINA PARK PROJECT ON THE CITY-OWNED PROPERTIES LOCATED AT 300-390 ALTON ROAD, THE CURRENT UPLAND SITE OF THE MIAMI BEACH MARINA (FOLIO NOS. 02-4203-009-9210, 02-4203-000-0010, AND 02-4203-009-9250) (COLLECTIVELY, THE "DEVELOPMENT SITE"), WHICH PSA MEMORIALIZES THE TERMS FOR THE CITY'S SALE TO THE PURCHASER OF A PORTION OF THE DEVELOPMENT SITE AND A PARCEL OF AIR LOCATED ABOVE THE GRADE SURFACE OF THE DEVELOPMENT SITE (THE "RESIDENTIAL PARCEL"), FOR THE CONSTRUCTION OF THE APPROXIMATELY 275,000 SQUARE FOOT RESIDENTIAL PORTION OF THE MARINA PARK PROJECT, IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE DEVELOPMENT AGREEMENT BY AND AMONG THE CITY, MARINA PARK RESIDENTIAL, LLC AND MARINA PARK COMMERCIAL, LLC, APPROVED PURSUANT TO CITY COMMISSION RESOLUTION NO. 2020- ; WITH SUCH PSA AND/OR RELATED AGREEMENTS PROVIDING, AMONG OTHER TERMS, FOR (1) A PURCHASE PRICE IN THE AMOUNT OF $55,000,000.00, OF WHICH $5,000,000 IS PAYABLE TO THE CITY AT CLOSING AND THE BALANCE OF WHICH IS PAYABLE IN SPECIFIED INSTALLMENTS, EVIDENCED BYA PROMISSORY NOTE AND SECURED BYA FIRST MORTGAGE ON THE RESIDENTIAL PARCEL, IN FAVOR OF THE CITY; AND (2) ADDITIONAL NON-CASH CONSIDERATION TO THE CITY IN THE AMOUNT OF $22,500,000, FOR SPECIFIED CAPITAL IMPROVEMENTS TO BE CONSTRUCTED ON THE DEVELOPMENT SITE, WHICH ADDITIONAL NON-CASH CONSIDERATION IS SET FORTH IN THE DEVELOPMENT AGREEMENT AND/OR THE LEASE AGREEMENT BETWEEN THE CITY AND MB MARINA PARK, LLC, AN AFFILIATE OF SUNTEX MARINA INVESTORS, LLC, APPROVED PURSUANT TO CITY COMMISSION RESOLUTION NO. 2020- ; FURTHER, APPROVING A Page 765 of 2461 RECIPROCAL EASEMENT AGREEMENT, PURCHASE MONEY PROMISSORY NOTE, PURCHASE MONEY MORTGAGE, AND MASTER SUBLEASE RECOGNITION AGREEMENT BETWEEN THE CITY AND MARINA PARK COMMERCIAL, LLC, EACH IN SUBSTANTIAL FORM, WITH SUCH CHANGES AND CORRECTIONS AS MAY BE APPROVED BY THE CITY MANAGER AND THE CITY ATTORNEY, IN ACCORDANCE WITH THE TERMS OF THE PSA AND REQUIREMENTS OF THIS RESOLUTION, AND AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE THE PSA AND EXHIBITS THERETO; FURTHER, WAIVING, BY 5/7TH VOTE, THE COMPETITIVE BIDDING REQUIREMENT OF SECTION 82-39 OF THE CITY CODE, FINDING THAT THE PUBLIC INTEREST WOULD BE SERVED BY WAIVING SUCH CONDITION; AND FURTHER, PROVIDING THAT THE SALE OF THE RESIDENTIAL PARCEL SHALL BE SUBJECT TO AND CONTINGENT UPON APPROVAL BYA MAJORITY OF THE VOTERS VOTING IN A CITYWIDE REFERENDUM, PURSUANT TO SECTION 1.03(B)(1) OF THE CITY CHARTER. 3. A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING, FOLLOWING SECOND READING/PUBLIC HEARING, PURSUANT TO SECTION 82-37(A)(2) OF THE CITY CODE,A LEASE AGREEMENT ("LEASE") BETWEEN THE CITY OF MIAMI BEACH ("CITY") AND MB MARINA PARK, LLC, AN AFFILIATE OF SUNTEX MARINA INVESTORS, LLC (THE "LESSEE"), OF THE CITY- OWNED ITYOWNED PROPERTIES LOCATED AT 300-390 ALTON ROAD, (FOLIO NOS. 02-4203-009-9210, 02-4203-000-0010, AND 02-4203-009-9250), AN APPROXIMATELY 3.51 ACRE SITE, MORE PARTICULARLY DESCRIBED IN THIS RESOLUTION (THE "LEASED PROPERTY"), FOR THE OPERATION OF THE MIAMI BEACH MARINA, WHICH LEASE SHALL PROVIDE FOR: (1) THE CONSTRUCTION OF A NEW FACILITY OF APPROXIMATELY 45,000 SQUARE FEET, FOR RETAIL, RESTAURANT, OFFICE AND MARINA USES, IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE LEASE AND THE DEVELOPMENT AGREEMENT BY AND AMONG CITY, MARINA PARK RESIDENTIAL, LLC AND MARINA PARK COMMERCIAL, LLC FOR THE MARINA PARK PROJECT, APPROVED PURSUANT TO CITY COMMISSION RESOLUTION NO. 2020- ("DEVELOPMENT AGREEMENT"); (2) THE CITY'S SUBLEASE TO THE LESSEE OF THE SUBMERGED LANDS AREA LEASED TO THE CITY AND MIAMI BEACH REDEVELOPMENT AGENCY BY THE BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENTS TRUST FUND OF THE STATE OF FLORIDA, AS MAY BE AMENDED (BOT FILE NO. 130765469) ("AREA 2"); (3) A TERM OF NINETY-NINE (99) YEARS, COMMENCING ON JANUARY 1, 2022 AND EXPIRING DECEMBER 31, 2120; (4)ANNUAL RENT TO THE CITY, CONSISTING OF THE GREATER OF MINIMUM ANNUAL GUARANTEED RENT OR A FIXED PERCENTAGE OF THE GROSS REVENUES OF THE MIAMI BEACH MARINA; AND (5) LESSEE'S CONSTRUCTION, AT ITS SOLE COST AND EXPENSE, OF ADDITIONAL CAPITAL IMPROVEMENTS IN THE AGGREGATE AMOUNT OF $40 MILLION WITHIN THE FIRST THIRTY-FIVE (35) YEARS OF THE LEASE; FURTHER, PROVIDING THAT THE LEASE SHALL BE SUBJECT TO AND CONTINGENT UPON APPROVAL BY A MAJORITY OF THE VOTERS Page 766 of 2461 VOTING INA CITY-WIDE REFERENDUM PURSUANT TO SECTION 1.03(B) (1) OF THE CITY CHARTER AND THE CLOSING ON THE SALE OF THE RESIDENTIAL PARCEL, AS CONTEMPLATED IN THE DEVELOPMENT AGREEMENT AND RELATED AGREEMENTS ATTACHED AS EXHIBITS THERETO; FURTHER, WAIVING, BY 5/7TH VOTE, THE COMPETITIVE BIDDING REQUIREMENT OF SECTION 82-39 OF THE CITY CODE, FINDING THAT THE PUBLIC INTEREST WOULD BE SERVED BY WAIVING SUCH REQUIREMENT; AND FURTHER AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE THE LEASE UPON THE SATISFACTION OF THE FOREGOING CONDITIONS. 4. A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING, FOLLOWING SECOND READING/PUBLIC HEARING OF THIS RESOLUTION, THE VACATION OF THE WESTERN HALF OF ALTON ROAD ADJACENT TO THE CITY- OWNED ITYOWNED PROPERTIES LOCATED AT 300-390 ALTON ROAD, THE CURRENT UPLAND SITE OF THE MIAMI BEACH MARINA (FOLIO NOS. 02-4203-009-9210, 02-4203-000-0010, AND 02-4203-009-9250) (THE "DEVELOPMENT SITE"), WHICH AREA PROPOSED TO BE VACATED CONSISTS OF A FIFTY (50) FOOT WIDE RIGHT-OF-WAY CONTAINING 25,500 SQUARE FEET IN TOTAL LOT AREA (THE "CITY RIGHT-OF-WAY AREA"), IN FAVOR OF THE ABUTTING PROPERTY OWNER, THE CITY OF MIAMI BEACH, FLORIDA (THE "CITY"), FOR THE PURPOSE OF INCLUDING THE CITY RIGHT-OF-WAY AREA AS PART OF THE UNIFIED DEVELOPMENT SITE FOR THE PROPOSED DEVELOPMENT OF THE DEVELOPMENT SITE, WHICH PROPOSED DEVELOPMENT SHALL BE LIMITED TO A MAXIMUM FLOOR AREA OF 319,802 SQUARE FEET, AND SHALL INCLUDE RESIDENTIAL, RETAIL, OFFICE, RESTAURANT AND MARINA USES (THE "MARINA PARK PROJECT"); FURTHER, PROVIDING THAT THE PROPOSED VACATION SHALL BE CONDITIONED UPON THE CITY COMMISSION'S APPROVAL OF (1)A DEVELOPMENT AGREEMENT BY AND AMONG THE CITY, MARINA PARK RESIDENTIAL, LLC AND MARINA PARK COMMERCIAL, LLC (JOINTLY AND SEVERALLY, THE "DEVELOPER"), WHICH AGREEMENT SHALL INCLUDE THE TERMS AND CONDITIONS FOR THE DESIGN, PERMITTING AND CONSTRUCTION OF THE MARINA PARK PROJECT, AT THE DEVELOPER'S SOLE COST AND EXPENSE, INCLUDING RESILIENCY AND OTHER CAPITAL IMPROVEMENTS; (2)THE CITY'S SALE TO MARINA PARK RESIDENTIAL, LLC OF THE PORTION OF THE DEVELOPMENT SITE AND AIR PARCEL WITHIN WHICH THE APPROXIMATELY 275,000 SQUARE FOOT RESIDENTIAL PORTION OF THE MARINA PARK PROJECT IS TO BE CONSTRUCTED ("RESIDENTIAL PARCEL");AND (3) THE CITY'S NINETY- NINE INETYNINE (99) YEAR LEASE TO MB MARINA PARK, LLC, AN AFFILIATE OF SUNTEX MARINA INVESTORS, LLC, OF THE DEVELOPMENT SITE (EXCLUDING THE RESIDENTIAL PARCEL)AND ASSOCIATED LEASE OF SUBMERGED LANDS FOR MARINA USE (THE "MARINA LEASE"); FURTHER, PROVIDING THAT THE PROPOSED VACATION SHALL BE SUBJECT TO AND CONTINGENT UPON APPROVAL OF THE MARINA LEASE AND THE SALE OF THE RESIDENTIAL PARCEL BYA MAJORITY OF THE VOTERS VOTING IN A CITYWIDE REFERENDUM, PURSUANT Page 767 of 2461 TO SECTION 1.03(B)(1) OF THE CITY CHARTER, AMONG OTHER CONDITIONS; AND FURTHER, WAIVING, BY 517TH VOTE, THE COMPETITIVE BIDDING REQUIREMENT, PURSUANT TO SECTION 82-39 OF THE CITY CODE, FINDING SUCH WAIVER TO BE IN THE BEST INTEREST OF THE CITY. RECOMMENDATION See attached Consolidated Commission Memorandum. Applicable Area Citywide Is this a"Residents Right Does this item utilize G.O. to Know" item. pursuant to Bond Funds? City Code Section 2-14? Yes No Legislative Tracking Office of the City Attorney Sponsor Commissioner Ricky Arriola ATTACHMENTS: Description ❑ Commission Memorandum ❑ Exhibit 1_Development Site and City ROW Survey_Legal Description ❑ Exhibit 2_Planning Analysis ❑ Exhibit 3_Development Agreement ❑ Exhibit 4_Purchase and Sale Agreement ❑ Exhibit 5_Lease Agreement ❑ Exhibit 6_Summary of Key Milestones, Payments and Project Contingencies ❑ Exhibit 7_Independent Appraisals(Walter Duke and CBRE, Inc.) ❑ Exhibit 8_Public Benefit Improvements for the Project ❑ 1 Resolution-Development Agreement ❑ 2 Resolution-Sale of Residential Parcel ❑ 3 Resolution-Lease ❑ 4 Resolution-Vacation of City Right-of-Way Area ❑ Ad ❑ Ad ❑ Ad ❑ Ad Page 768 of 2461 • . fl City of Miami Beach, 1700 Convention Center Drive,Miami Beach,Florida 33139,www.miamibeachfi.aov COMMISSION MEMORANDUM TO: Honorable Mayor and Members of the City Commission FROM: Jimmy L. Morales, City Manager Raul J. Aguila, City Attorney DATE: July 29, 2020 SUBJECT: MARINA PARK PROJECT- (1) DEVELOPMENT AGREEMENT, (2) SALE OF PROPERTY, (3) NEW MARINA LEASE, AND (4) VACATION OF RIGHT OF WAY This consolidated Commission Memorandum has been prepared to provide the City Commission with a comprehensive understanding of the proposed Marina Park Project transaction and its interrelated elements. The four main components of the transaction, each of which will be considered on second reading, are as follows: (1) Development Agreement for the development of the entire Marina Park Project; (2) Purchase and Sale Agreement for the sale of the Residential Parcel; (3) Lease for the Miami Beach Marina; and (4) Vacation of a City Right-of-Way Area. in addition, the Marina Park Project also contemplates proposed amendments to the City's Comprehensive Plan and Land Development Regulations, which are the subject of companion agenda items on the July 29,2020 City Commission agenda, addressed more fully in the separate Commission Memorandum accompanying those items. The proposed transaction is intended to maximize the performance of the Miami Beach Marina and upgrade its facilities, enhance the neighborhood through neighborhood- oriented commercial and retail spaces, improve resiliency with capital improvements focused on sustainability, provide a park with additional public green space in the City, and generate substantial lease and other revenues for the City. If approved by a, majority of the voters in a City-wide referendum, the Marina Park Project transaction will collectively result, among other terms, in the following benefits for the City: • Payment to the City of $55 million for the sale of the Residential Parcel, with Project restrictions to limit the building height to 385 feet, and a maximum of 60 residential units; • • Construction of a new Miami Beach Marina facility to replace the existing facility, at no cost to the City, with Developer to spend a minimum of $22.5 million in Marina facility improvements and additional public benefits, including a 1.0 acre park, resiliency improvements and enhancements to the surrounding Baywalk and Alton Road areas; Page 769 of 2461 Commission Memorandum July 29, 2020 Page 2 • Except with respect to a 4-year construction rent period, increased Minimum Annual Guaranteed Rent to the City of$1.9 million, adjusted each year for inflation, and with the City to annually receive the greater of the Minimum Annual Guaranteed Rent or Percentage Rent (as defined in the Lease, based on the revenues generated in connection with the operation of the Leased Premises); and • A minimum of $40 million to be spent by the Marina Lessee on additional capital improvements for theoperation of the Marina, to upgrade the marina to world-class marina standards; and • Delivery to the City of a 1.0 acre public park which, once constructed, will be owned and controlled by the City, separate from the Leased Premises, for the benefit of the general public. The details of the proposed transaction are addressed more fully below. BACKGROUND On March 18, 2020, the Mayor and City Commission referred the proposed Marina Redevelopment Project to the Finance and Economic Resiliency Committee ("Finance Committee"),thereby initiating the review process under Chapter 82 of the City Code with respect to the sale or lease of City-owned property. On April 17, 2020, the Finance Committee heard an initial presentation with regard to the proposed redevelopment, and directed the Administration to commence negotiations and come back to the Finance Committee for its review of appraisals and consideration of proposed terms, in accordance with the requirements of Section 82-37 of the City Code. On May 6, 2020, the Land Use and Development Committee ("LUDC") heard an initial presentation with two design studies for the proposed redevelopment. The LUDC strongly encouraged the development team to further study design options that would provide for a taller, but "leaner" and more attractive project, with the item to come back to the LUDC for further consideration at its May 26, 2020 meeting. On May 22, 2020,the Finance Committee favorably recommended the proposed redevelopment, and directed the Administration to continue its negotiations and bring to the City Commission for first reading a proposed (1) development agreement; (2)purchase and sale agreement; (3) !ease agreement; and (4) vacation resolution for the City Commission's consideration. On May 26, 2020, the Land Use and Sustainability Committee favorably recommended the proposed amendments to the City's Comprehensive Plan and Land Development Regulations to permit public-private marina redevelopments (including residential and other uses), increase the maximum building height, and amend other design regulations (collectively, the "Proposed LDR Amendments"). The Proposed LDR Amendments are the subject of companion agenda items on the City Commission's June 24, 2020 agenda, and are briefly discussed below. On June 23, 2020, the Planning Board unanimously approved the proposed vacation of the City Right-of-Way Area described more fully below, as required under Section 1.03(b)(4) of the City Charter, and voted to transmit the Development Agreement and the Proposed LDR Amendments to the City Commission with a favorable recommendation, in accordance with the City's Land Development Regulations. Page 770 of 2461 Commission Memorandum July 29, 2020 Page 3 On June 24, 2020, the City Commission approved, on first reading, all of the elements of the proposed transaction (Development Agreement, Purchase and Sale Agreement, Lease Agreement, and vacation of the City Right-of-Way Area) as well as the Proposed LDR Amendments. OVERVIEW OF THE PROPOSED MARINA PARK REDEVELOPMENT PROJECT The City is the owner of the upland property located at 300-390 Alton Road, the location of the Miami Beach Marina, Folio Nos. #02-4203-000-0010, 02-4203-009-9210 and 02-4203-009-9250 (the"Development Site"or"Miami Beach Marina Site"). The Development Site is described more particularly below and in the attached Exhibit"1". Suntex Marina Investors, LLC, an affiliate of Miami Beach Marina Associates, Ltd., the current lessee of the Miami Beach Marina ("Lessee"),and Marina Park Residential, LLC,f/k/a Alton Road Mixed Use Investments, LLC ("Marina Park Residential"), are proposing a public-private partnership with the City for the purpose of developing and constructing: (1) a private luxury residential tower that would include approximately 60 residential units and approximately 275,000 square feet,with a maximum height of 385 feet; (2) a new Marina building and enhanced neighborhood retail uses on the site of the current Marina building,with a total of approximately 45,000 square feet of accessory restaurant, retail and office space, to upgrade the existing condition of the Marina facilities, which are dated and unattractive; (3) substantial green space, including a contiguous ground-level public park of at least 1 acre which will be owned and controlled by the City and dedicated as a public park for the benefit of the general public, as well as other improvements, including resiliency enhancements and improvements to the public baywalk along the Miami Beach Marina (collectively, (1) — (3) above, the"Project"). The proposal has provided the City with a rare opportunity to negotiate a new lease with improved terms that shall deliver additional public benefits to the City, as the existing lease for the Miami Beach Marina(the initial term of which expires on January 1,2022, but is subject to 30 more years of option periods) is otherwise in place for another thirty-two(32)years. The proposed transaction is complex, as it involves various interrelated agreements to implement the Project and its various components, including the following: (1) A development agreement governing the development, design and construction of the entire Project, including its (1) residential, (2) commercial, and (3) green space and resiliency components ("Development Agreement" or "DA"). The Development Agreement will provide the developer with the right to use all of the available development rights for the underlying City-owned property that is the subject of the'transaction (namely, all of the F.A.R. associated with the Development Site, described below) and the F.A.R. associated with the vacation of the City Right-of-Way Area, as described in (4) immediately below; and (2) A purchase and sale agreement for the sale of up to .3 acres of the 3.51 acre Development Site, and the air parcel within which the residential portion of the Project would be constructed("Residential Parcel"),with the purchaser,Marina Park Residential, LLC("Residential Parcel Purchaser"), paying to the City$55 million ("Purchase Price")for the Residential Parcel Page 771 of 2461 Commission Memorandum July 29, 2020 Page 4 ("Sale of Residential Parcel"), with additional non-cash consideration memorialized in the Development Agreement and New Lease, as set forth more fully in this Memorandum; and (3) A new lease agreement for the Miami Beach Marina (with the leased premises more fully described below), with a term (including renewals) of 99 years between the City and MB Marina Park, LLC, an affiliate of Suntex Marina Investors, LLC (the "New Lessee") and improved financial and other terms ("New Lease"), which terms would permit a master sublease of the Development Site for the construction of the Project (the "Master Sublease"), to Marina Park Commercial, LLC (the "Master Sublessee" or"Marina Park Commercial"). In addition to the Project, the terms provide for the New Lessee to.spend $40 million in improvements for the operation of the Marina ("Marina Improvements"); and (4) The vacation of the western half of the Alton Road right-of-way abutting the City-owned parcels along 300-390 Alton Road, as described more fully in Exhibit "1" hereto, consisting of approximately 25,500 square feet ("City Right-of-Way Area"). Upon the vacation, fee ownership of the City Right-of-Way Area would revert to the City, with the associated development rights to be incorporated as part of the unified development site for the Project, to permit the Project to be realized, as contemplated above. (5) The Proposed LDR Amendments, which are summarized as follows: a. Amendments to the Public Facility: Government Use ("PF") future land use regulations in the Comprehensive Plan, to permit public-private marina redevelopments (requiring significant publicly accessible green open space; and permitting retail sales and service establishments, commercial uses including business and professional offices, eating and drinking establishments, apartment residential uses, and recreational uses); and b. Amendments to the CPS-4 district regulations in the Land Development Regulations that would only apply to public-private marina mixed-use redevelopments, including an increase to the maximum height; increase to the height for allowable height exceptions;amendments to minimum setbacks; and a text amendment to permit non-use screening of parking floors (including landscape buffering and physical design elements, as opposed to commercial and residential uses) on all frontages except the Alton Road frontage. Pursuant to Section 1.03(b)(1) of the City Charter, both the New Lease and the Sale of Residential Parcel are subject to approval by a majority of the voters voting in a City-wide referendum. In addition, pursuant to Section 1.03(b)(4) of the City Charter, the vacation of the City Right-of-Way Area requires approval by the Planning Board (which approval was obtained on June 23, 2020), and a 6/7ths vote of the City Commission. - PLANNING ANALYSIS The Planning Department's analysis, as required pursuant to Sections 118-51(11) and 82-38 of the City Code, is attached hereto as Exhibit"2." THE EXISTING LEASE FOR THE MIAMI BEACH MARINA In 1983,the Mayor and City Commission adopted Resolution No. 83-17385, approving the initial lease agreement for the Miami Beach Marina, to be used solely as a boat port, marina and Page 772 of 2461 Commission Memorandum July 29, 2020 Page 5 recreation facility offering dockage, mooring and other marina related services for use by the general public, which lease has been amended on four separate occasions over the years, with the most recent amendment being executed in 1998, over 22 years ago (collectively, as amended, the"Marina Lease"or"Lease"). The property commonly referred to as the "Miami Beach Marina"that is the subject of the Lease, and/or to which the Lessee has easement rights, consists of the following: (1) the upland properties located at 300-390 Alton Road owned by the City, consisting of the platted Lots 22 through 29, and the northerly ten (10) feet of Lot 21 in Block 111 of the Ocean Beach Florida Addition No. 3 Plat, as recorded in Plat Book 2, Page 81, of the Public Records of Miami-Dade County("Area 1"); and (2) a submerged land area leased to the City and the RDA by the Board of Trustees of the Internal.Improvement Trust Fund of the State of Florida ("TIIF") ("Area 2"). (collectively, Area 1 and Area 2, the"Existing Leased Premises"). In addition, the City owns the property consisting of Lots 30 and 31 in Block 111 of Ocean Beach Florida Addition No. 3 Plat as recorded in Plat Book 2, Page 81, of the Public Records of Miami- Dade County ("Lots 30-31"), and has granted to the Lessee a non-exclusive easement to use Lots 30-31 for, among other purposes, ingress and egress to both the marina and parking located within the Murano Grande and Icon parking garages and surface parking located in Area 1. The City has separately granted the Lessee two (2) non-exclusive easements covering the baywalk adjacent to Area 2. Collectively, the entirety of Area 1, Area 2, and Lots 30-31 shall be hereinafter referred to as the "Miami Beach Marina"). The Miami Beach Marina, Easements and Marina Parking (as defined below), as well as the City Right-of-Way Area that is proposed to be vacated, are identified in Exhibit"1." THE MARINA LEASE The current Lessee of the Miami Beach Marina is Miami Beach Marina Associates, Ltd. The Lease provides for an initial term expiring on January 1, 2022, with the Lessee having the right to renew three (3) times, for a period of ten (10) years for each renewal term, through January 1, 2052, at Lessee's sole option and discretion. The Lessee's annual rent payment to the City pursuant to the Lease is the greater of the Minimum Annual Guaranteed Rent in the amount of$320,000 or the Annual Percentage of Rent calculated as: (1) $0.02 per gallon from the sale of gasoline and diesel fuel at the Marina, which generated approximately $25,000 to the City in 2019; (2) 10% of Gross Receipts generated from the submerged lands; and (3) 10% of the Gross Receipts generated from the upland areas. The Annual Percentage of Rent has exceeded the Minimum Annual Guaranteed Rent since approximately 2008. The total revenue to the City from 2011 to present from the Lease is identified in the chart below: Page 773 of 2461 Commission Memorandum July 29, 2020 Page 6 Total Revenue Year to City: 2011 $ 714,625 2012 $ 908,735 2013 $ 1,013,453 2014 $ 1,182,440 2015 $ 1,298,631 2016 $ 1,340,762 2017 $ 1,512,976 2018 $ 1,667,181 2019 $ 1,742,512 $ 11,381,315 THE PARKING AGREEMENTS FOR THE MIAMI BEACH MARINA In accordance with the Lease,the City is required to provide the Lessee with parking, permanent laundry, lavatory and shower facilities to support the Marina. Due to the lack of surface parking and municipal garages near the Existing Leased Premises to meet the parking needs of the Marina, the City and the RDA currently lease space within the parking garages of the following buildings, pursuant to separate parking leases with each of the condominium associations: • Yacht Club Condominium, • Murano Grande Condominium, • Murano at Portofino Condominium, and • Icon Condominium. (collectively, the "Marina Parking"). The Lessee is responsible to provide maintenance, repairs, and security for the Marina Parking in accordance with the December 1, 1999 Parking Facility Operations and Maintenance Agreement. Pursuant to the City's Marina Parking leases with the condominium associations, the City is responsible for the real estate taxes, certain utility fees, stormwater fees, and annual rent associated with each of the leases for the parking garages located within the four condominiums, as set forth below: Condominium Stormwater Real Estate Base Rent Total Fee Taxes Icon $27,497 $56,616 $138,548* $222,661 Murano Grande $20,261 $39,625 $100,328* $106,214 Yacht Club $14,761 $25,205 $ 50,858* $90,824 Murano at Portofino $13,604 $30,137 $ 45,000 $88,641 (Estimated) TOTAL: $562,440 *Base Rent is annually adjusted for CPI Page 774 of 2461 Commission Memorandum July 29, 2020 Page 7 THE SUBMERGED LAND (AREA 2) LEASE As further described above, Area 2 is leased to the City and the RDA by the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida (BOT File No. 130765469).The City's annual rent payment for 2020 was $207,731, which rent is subject to annual CPI adjustments in accordance with Florida Administrative Code Section 18-21.011. The term for the Submerged Land Lease commenced on April 28, 2010 and expires on January 21, 2036. THE CITY'S MARINA LEASE NET REVENUE FOR 2019 As set forth above, the City's expenses for 2019 in connection with Marina Lease for the Submerged Land Lease and the Marina Parking was approximately $770,000, and the City's gross revenues for 2019 totaled, $1,742,512. Accordingly, the City's net revenue for 2019 in connection with the Marina Lease was approximately$972,000. APPRAISAL REPORT The City engaged two independent appraisers, namely CBRE, Inc. ("CBRE") and Walter Duke + Partners, Inc. ("Walter Duke"). The appraisers were directed to independently estimate the fair market value of the development rights in connection with the Sale of Residential Parcel and the fair market rental value for the New Lease including the Area 2 and approximately 45,000 gross square feet of accessory restaurant, retail and office space located in Area 1. CBRE's May 20, 2020 appraisal valued the Residential Parcel at$80 million, and Walter Duke's June 2, 2020 appraisal valued the Residential Parcel at$70 million. Additionally, both appraisers' reports have determined that the current fair market annual rate of the Marina Lease to be 10% of gross sales for the Area 1 and Area 2 marina operations, 35% of parking revenue, and $0.04 per gallon for fuel sales, which is commensurate with the current negotiated terms for the New Lease. As the City's 10% percentage rent in 2019 under the existing Lease amounted to approximately$1,740,000, the City anticipates that once the Project is completed,with new tenant space and additional capital improvements, the New Lease would result in increased rent to the City. On June 24,2020,at first reading/public hearing of the proposed transaction,the City Commission requested that both appraisers evaluate the changes to the residential development since it was first proposed in March, 2020 (i.e., with the increased height and narrower tower)to determine if such changes resulted in a material change to the appraisals. The CBRE appraisal concluded that the taller tower resulted in a change from $80 Million to $87 Million, and the Walter Duke appraisal concluded that the taller tower does NOT result in any change to the appraised value of $70 Million. Both appraisers' valuations regarding the proposed lease remained unchanged. The following chart provides a comparison of the updated values determined by the appraisers: Page 775 of 2461 Commission Memorandum July 29, 2020 Page 8 CBRE ' Walter Duke Sale of Residential $87,000,000 $70,000,000 Parcel Marina Lease-Fair Areas 1 & 4: 10% of Gross Areas 1 & 4: 10% of Gross Market Rate Sales; Area 2: 10% of Gross Sales; Area 2: 10% of Gross Sales; Parking: 35%of revenue; Sales; Parking: 35% of Fuel Sales: $0.04 per gallon revenue, Fuel Sales: $0.04 per gallon Marina Lease -Net $35,200,000* $43,871,073* Present Value Over 32 Years Marina Lease-Net $48,800,000* $95,669,363* Present Value Over 99 Years *Utilizing a 3% Growth Rate and *Utilizing a variable Growth a 7% Discount Rate. Does not Rate and a 4% Discount Rate. include reversion value or Does not include reversion capital investments by Lessee. value or capital investments by Lessee. The CBRE and Waiter Duke appraisals of Sale of the Residential Parcel and the New Lease as well as the updated appraisals for the Sale of the Residential Parcel are attached hereto as Exhibit"7". THE VARIOUS AGREEMENTS RELATED TO THE MARINA PARK PROJECT As noted above, the transaction involves a New Lease, Purchase and Sale Agreement for the Sale of Residential Parcel, a Development Agreement (which would contemplate the vacation of a portion of the Alton Road and use of the associated development rights). The following is a breakdown of the parties to each agreement and relationships among the parties relative to the overall development of the Project. The Development Agreement. The proposed Development Agreement is attached hereto as Exhibit "3." Marina Park Residential (the Residential Parcel Purchaser) and Marina Park Commercial (Master Sublessee), jointly and severally, would be the "Developer" under the Development Agreement. The Developer would be responsible for the development,design and construction of the entire Project(including the residential, commercial and park elements). The Development Agreement would include all of the Project requirements and restrictions, including the obligation to deliver a new Marina facility and additional public benefits consisting of at least $22,500,000, and would provide the Developer with the rights to use the development rights associated with the Development Site and the vacated City Right-of-Way Area for the purpose of building the Project, as part of a unified development site. The proposed Public Benefit Improvements for the Project are summarized in Exhibit"8." Marina Park Commercial's (the Master Sublessee) obligations under the Development Agreement for the financing and redevelopment the Area 1 commercial, retail and office improvements (collectively, the "Upland Redevelopment") are incorporated into the New Lease and will also be incorporated in the Master Sublease between MB Marina Park, LLC(Lessee)and Marina Park Commercial (Master Sublessee), thereby aligning the Developer's obligations under the Development Agreement with the obligations in the New Lease and Master Sublease. Page 776 of 2461 Commission Memorandum July 29, 2020 Page 9 Purchase and Sale Agreement. The proposed Purchase and Sale Agreement is attached hereto • as Exhibit "4." The Purchase and Sale Agreement ("PSA"), between the City and the Marina Park Residential (Residential Parcel Purchaser), would be effective following voter referendum approval of the Sale of Residential Parcel and the New Lease in accordance with the City Charter. At the closing of the Sale of Residential Parcel, which would take place by March 15, 2021 (the "Closing"), the Residential Parcel Purchaser would own the fee interest in the Residential Parcel upon which the residential portion of the Project would be built. As noted above, Marina Park Residential(the Residential Parcel Purchaser),jointly and severally with Marina Park Commercial (the Master Sublessee), would be the Developer under the Development Agreement, thereby aligning the Residential Parcel Purchaser's rights under the PSA and Reciprocal Easement Agreement(as described below)with Marina Park Commercial's obligations relative to the Project under the Development Agreement, to collectively cover all of the respective obligations for delivery of the residential, commercial, and park components of the Project. As set forth in the Development Agreement, until the Developer has satisfied all conditions for Commencement of Construction, the City shall require that the deed for the Residential Parcel must be re-conveyed to the City in the event of the termination of the DA and unwinding of the transaction. The Promissory Note and Mortgage in Favor of the City. The Purchase and Sale Agreement will provide for an initial installment payment of$5 million due at Closing,with the$50 million balance due in installments,evidenced by a Promissory Note(which shall be non-interest bearing until the date specified below)and secured by a First Mortgage in favor of the City. The Note will be non- interest bearing until the earlier of(y) ninety(90)days after the Project Approvals(Design Review Board and Planning Board) are obtained or (z) fifty four (54) months after the Effective Date, subject to extension as provided in the Agreement, and shall thereafter accrue interest at a rate equal to one percent (1.0%) above the LGIP Index Rate, as published by FLCLASS, and, commencing two years thereafter, the rate shall increase by 0.5% above the Interest Rate previously in effect, and shall continue to increase by 0.5%each year thereafter above the Interest Rate previously in effect, through the Maturity Date. The Purchase Money Promissory Note and the Purchase Money Mortgage and Security Agreement, each in substantial form, are attached hereto as part of Exhibit"4," as exhibits to the PSA. Reciprocal Easement Agreement. The PSA includes, as an exhibit, in substantial form, the Reciprocal Easement Agreement, which would be effective upon the Closing of the Sale of Residential Parcel,to accomplish the subdivision of the Development Site to create two separate fee parcels: the fee interest in the Residential Parcel (up to 0.3 acres of land, and the air parcel, within which the 275,000 sq. ft. residential portion of Project will be built) to be owned by the Residential Parcel Purchaser and the fee interest in the balance of the Development Site, which would remain owned by the City at all times (and leased to MB Marina Park, LLC (the New Lessee) under the New Lease) ("REA"). The REA would grant necessary easements including those of support, ingress and egress, and utilities, and contain covenants with respect to cost- sharing and maintenance between the New Lessee/Master Sublessee with respect to the Development Site and the Residential Parcel Purchaser and successor owners with respect to the Residential Parcel. The REA would survive the expiration or earlier termination of the New Lease. The REA, in substantial form, is attached as part of Exhibit"4" as an exhibit to the PSA. Upon the Closing of the Sale of Residential Parcel and subsequent construction of the residential portion of the Project in accordance with the Development Agreement, Marina Park Residential (the "Residential Parcel Purchaser") would have the right to further subdivide the Residential Parcelpursuant to a declaration of condominium to create individual residential units for purchase and sale. Following completion of construction of the entire Project in accordance with the Page 777 of 2461 Commission Memorandum July 29, 2020 Page 10 Development Agreement, the City would be unable to interfere with, and would be limited by, the terms of the REA with respect to the rights of the Residential Parcel owner(s) (i.e., if the New Lease was terminated and the demised premises reverted to the City,the City would be restricted in its ability to redevelop such premises, having sold the Residential Parcel). The New Lease. The proposed New Lease is attached hereto as Exhibit "5." Subject to voter referendum approval, the New Lease between the City and MB Marina Park, LLC, would be executed at Closing and effective as of the date of Closing, with the Term commencing on Jan. 1, 2022, immediately upon the expiration of the Existing Lease. The leased premises subject to the New Lease will be comprised of the Existing Leased premises and Lots 30-31, less the Residential Parcel.The lessee under the New Lease is MB Marina Park, LLC(the"New Lessee"), an affiliate of Suntex Marina Investors, LLC, the entity controlling the current Lessee and operator of the Marina. The New Lessee will be responsible for all of the obligations under the New Lease. The New Lease will permit the sublease of the Area 1 upland area to Marina Park Commercial (Master Sublessee). To facilitate the financing of the Area 1 improvements, the City would agree to grant to Marina Park Commercial (the Master Sublessee)and its lender a recognition and non- disturbance agreement (with the Master Sublease Recognition Agreement, in substantial form, attached hereto as part of Exhibit"4"as an exhibit to the PSA), providing that in the event of any termination of the New Lease, the Master Sublease would continue as a direct lease between the City, as landlord, and the Master Sublessee, as tenant, and the City would thereafter have all rights and privileges of the "landlord" under the Master Sublease, including the right to exercise those remedies under the Master Sublease that are triggered upon default by the Master Sublessee of its obligations under the Master Sublease(which obligations will include the Upland Redevelopment obligations under the Development Agreement) that remain uncured after the expiration of applicable grace and cure periods. Updated Rent Terms for New Lease. Except with respect to a 4 year construction period,the rent will be the greater of (1) $1,900,000 (consisting of $1,650,000 for Area 1 and Area 2, and $250,000 as a parking contribution), adjusted annually by CPI ("Annual Minimum Guaranteed Rent") or(2) 10% of the Gross Revenues, $.04 per gallon for all fuel sales, and 35% of revenues generated from parking. During the proposed 4-year construction period, the City would receive reduced base rent in the amount of$1,250,000 annually. For any areas that are subleased by Lessee (to a third party other than Master Sublessee) or sub-subleased by Master Sublessee to third parties, Gross Revenues shall not include gross revenues of such subtenants or sub- subtenants, as applicable, but instead, the rent paid by such subtenants or sub-subtenants shall be Gross Revenues. Further, if Lessee or any affiliate thereof operates a restaurant or retail establishment within the Leased Premises, rent shall be based on the fair market rental value of the restaurant or retail premises instead of gross revenues. Additional Capital Improvements. The initial proposal to the City included a commitment to undertake$35,000,000 in capital improvements for Area 2 over the course of 30 years. The City has negotiated an increase in the capital improvement commitment to $40,000,000 for Marina Improvements, with $15 million in years 1-10, $12.5 million in years 11-20, and $12.5 million in years 21-35); which amounts are separate from the$22,500,000 which will be committed by the Developer for the new Marina facility and public benefit improvements. If the minimum spends cannot be completed in the time periods set forth above, New Lessee shall escrow all unspent amounts with the City, with the escrowed funds to be spent on Marina Improvements in the next period (subject to caps on the amounts that could be escrowed (described more fully in the table below), to ensure capital improvements are implemented within each time period above. Page 778 of 2461 Commission Memorandum July 29, 2020 Page 11 A detailed Summary of Key Milestones, Payments and Project Contingencies in the respective agreements is attached hereto as Exhibit "6." In addition, a table describing the principal terms of each agreement is set forth below: i. Development Agreement Governing Project (Exhibit "3") Developer Marina Residential, LLC(the Residential Parcel Purchaser) and its affiliate Marina Park Commercial,LLC(the Master Sublessee),jointly and severally. Project Restrictions • Approximately 275,000 square feet of residential, with up to 60 residential units; • Approximately 45,000 square feet of commercial,retail and office space (inclusive of space required by the New Lessee for the operation of the Marina); • Maximum height of 385 feet for the Project; • No free-standing outdoor bars/entertainment, in accordance with City Code; • A minimum of 1 acre contiguous ground-level Park (to be owned and controlled by the City after completion thereof); • Restrictions on short-term rentals;and • Parking for the commercial/retail areas. Vacation of Western Half of Alton Developer has requested that the City vacate the west half of the City Right- Road Right of Way Abutting the City- of-Way Area (consisting of approximately 25,500 square feet), which Owned Properties(Lots 21-31) vacated area shall continue to be used as a right-of-way for pedestrian/vehicular travel and owned at all times by City. City Right-of-Way Area and Development Site would be joined via a covenant in lieu of unity of title,and the associated development rights would be incorporated within the Project as part of the unified development site for the Project. Project Costs/Public Benefits Developer to develop, design and construct Project at Developer's sole expense. City shall have no obligation to expend any City funds for any portion of the Project. Developer has agreed to spend a minimum of$22.5 million to deliver the Baseline Commercial Building and Public Benefit Improvements for the Project, consisting of: (1) a minimum of $17.5 million for the Baseline Commercial Building for the Project, of which not less than $5 million shall be expended for upgrades to the Commercial Retail Improvements(such as higher ceilings,better quality finishes,and more architectural features);and (2)a minimum of$5 million for Public Benefit Improvements,which include park enhancements, resiliency improvements, Alton Road right-of-way enhancements,Baywalk enhancements,and additional art in excess of the required Art in Public Places contribution,as more fully described in Exhibit Effective Date Subject to voter referendum approval, the later of(1)thirty days after the date the City Commission certifies the results of the November 3, 2020 election or(2)January 31,2021. DRB Approval / Planning Board Developer to apply for Project Approvals within 6 months after the Effective Deadlines Date and to obtain final Project Approvals not later than 54 months following the Effective Date (subject to extensions for Unavoidable Delays, City Delays and tolling for Lawsuits as defined below (for a maximum tolling period for Lawsuits of 42 months). Page 779 of 2461 Commission Memorandum July 29, 2020 Page 12 Target Date for Project Approvals 2 years from Effective Date for Target Date for Project Approvals,and and Commencement of Construction 4 years from Effective Date for Target Date for Commencement of Construction. Outside Date for Issuance of Building 6 years from the Effective Date,subject to liquidated damages in favor of the Permit City of $1,000 per day for failure to achieve building permit prior to the Outside Date. Outside Date for Commencement of 8 years from the Effective Date(subject to extension for Unavoidable Delays, Construction City Delays, and tolling for lawsuits as provided above). Failure to achieve Outside Date for Commencement of Construction is a material event of default that could give rise to termination. Outside Date for Completion of The Developer is required to Complete Construction of the Project within 48 Project -months from the Commencement of Construction,with an additional period of up to 6 months granted for early Commencement of Construction each month prior to 8 year outside date. Transfers Prior to final Certificate of Transfers by Developer prior to CO shall be limited to entities satisfying City's Occupancy(CO) "Acceptable Owner" criteria and involuntary transfers (such as mortgage foreclosure), encumbrances in favor of lenders, transfers of minority interests and transfers for estate planning purposes. At a minimum, David Martin and/or a "Martin Entity" shall retain a 10% ownership interest and control day-to-day development of the Project until CO of the Project. Duration of Development Agreement The Development Agreement shall have a term of 12 years from the Effective Date, subject to extension for Unavoidable Delays, City Delays (and tolling for Lawsuits as provided above). After the expiration of the Agreement, the Parties shall have no further obligations under the Agreement except for those obligations that expressly survive the expiration of this Agreement, including, for example, the Developer's indemnity obligations to the City. indemnity of City / Project During the pendency of any lawsuit challenging the Project (or any Challenges-Lawsuits component thereof, including, without limitation, the Sale of Residential Parcel, New Lease, Project Approvals, or the Development Agreement) ("Lawsuit"),Developer shall defend the Lawsuit at its sole cost and indemnify the City against any damages relating to the Lawsuit. If the New Lease is successfully challenged(i.e.,through final appeals)such that the New Lease does not become effective or is voided, the existing Lease shall have been deemed renewed and shall continue in effect on its terms. Residential Parcel Purchaser shall deed back the Residential Parcel to the City, but existing Lease would otherwise continue in effect(with no obligation to construct a Replacement Facility for the Marina). City would refund the installment payments paid to City(of up to$15 million)via a rent credit to be amortized over a period of 10 years, provided that if the rent credit exceeds.$10 million,the amortization period would be extended to 15 years,so that the rent credit would not exceed$1 million in any given year. If New Lease is not successfully challenged(and New Lease is in effect),but DRB approval cannot be obtained, either due to a Lawsuit or for any other reason, either party may terminate the Development Agreement and Residential Parcel Purchaser shall deed back the Residential Parcel to the City. New Lessee would have the obligation under the New Lease to design and construct a new Marina facility(Alternate Replacement Facility)and park based on the parameters(Mandatory Project Elements)set forth in the New Lease, subject to City approval of the new concept design The first $5 million of the installment payments paid to the City would be non-refundable. With respect to any remaining installment payments previously paid, City would use 50%of the installment payments for public benefit improvements within the Project(such as park improvements in excess of Baseline Park Page 780 of 2461 Commission Memorandum July 29, 2020 Page 13 and resiliency improvements, with the remaining 50% to be reimbursed to New Lessee as credit against Lessee's obligation to build a $22.5 million Alternate Replacement Facility. New Lease to otherwise remain in effect. In all events above, City to be fully indemnified for all costs incurred by the City,including in connection with any Lawsuit. Termination City shall have the right to terminate for Material Events of Default that remain uncured (i.e., failure to make an installment payment for the Residential Parcel,failure to indemnify the City,failure to obtain the Project approvals by the outside date therefor; breach of the Transfer restrictions prior to CO of the Project, failure to commence construction by Commencement Construction Date, or complete construction of the Project 4 years after Completion of Construction Date). Any termination of the PSA for the Residential Parcel automatically terminates the Development Agreement and vice versa. See "Indemnity of City / Project Challenges" Section above,for termination,if due to challenges to the Project. Reimbursement of City's Project Developer agrees to reimburse the City for all its out-of-pocket costs and Transaction Costs expenses incurred in the negotiation of the Development Agreement, the PSA for the Residential Parcel and New Lease, through second reading. Standing alone, each of the DA, PSA and Lease would be a large transaction, made more complex by the various interrelationships. For this reason,the City's transaction costs approximate$300,000. I!. Purchase and Sale Agreement (PSA) for Residential Parcel (Exhibit "4") Purchase Price $55 million cash. Additional$22.5 million in capital improvements memorialized in the Development Agreement(consisting of$5 million for the Public Benefit Improvements (see Exhibit"8")and$17.5 million for the Baseline Commercial Building for the Project, of which not less than $5 million shall be expended for upgrades to the Commercial Retail Improvements, such as higher ceilings, better quality finishes, and more architectural features), and not including the value to the City of ownership and control of the 1.0 acre park upon completion of Park portion of the Project,or the additional$5 million increase in the minimum spend for Manna Improvements in the New Lease,for a total of$40 million in Marina Improvements. Closing On or before March 15,2021. Escrow Deposit A deposit of $1 million is due 30 days after City Commission approval of the PSA, refundable if no voter approval at referendum.An additional$4 million is due the later of 30 days following City Commission's adoption of resolution certifying election results,or January 31,2021,whichever is later. if Purchaser defaults under the PSA,the City shall retain the$5 million deposit, and the PSA may be terminated. Payment Schedule $5 million at Closing,with the balance due in installments,evidenced by a Promissory Note (which shall be non-interest bearing until date specified below)and secured by a First Mortgage in favor of the City. The installment payments against the Promissory Note shall be as follows: $5 million,on or before January 1,2022; $5 million,on or before September 1,2022;and $40 million balance, due on the date on which all of the Construction Commencement Conditions have been satisfied. Payments shall be subject to tolling for Lawsuits (for maximum period of 42 months,as provided above). Page 781 of 2461 Commission Memorandum July 29, 2020 Page 14 Reciprocal Easement City's fee parcel will be subdivided into two separate fee parcels pursuant to the REA, Agreement(REA) one for the fee interest in the Residential Parcel,and one for the City's fee interest in the balance of the Development Site. The REA would grant easements of support,ingress and egress, and utilities, and contain covenants with respect to cost-sharing between the New Lessee/Master Sublessee,with respect to the Upland Redevelopment and the Residential Parcel Purchaser. Termination Each party may terminate the PSA for the other party's failure to perform (following notice and cure period). Any termination of the Development Agreement automatically terminates the PSA and vice versa. III. New Marina Lease (Exhibit"5") TERMS AND EXISTING LEASE INITIAL TERM SHEET FINAL AGREEMENT CONDITIONS OF EASE AGREEMENT Leased Premises Lots 22-29, plus 10 Same as Existing Lease, Same as under Existing Lease, plus feet of Lot 21, with but with removal of the Lots 30/31 (less the Residential non-exclusive Residential Parcel. Parcel). Upon completion of easement rights construction of 1.0 acre Park,the Park over Lots 30/31 and would be removed from the boundaries Baywalk. of the Leased Premises. Term Current term 99 years,commencing on New Lease to be executed at Closing expiring January 1, the January 1St after (on or before March 15, 2021), and 2022, with 3 issuance of C.O. for the contingent upon the Closing taking separate 10 year "Replacement Facilities". place, with the Term commencing on renewal periods, at January 1,2022,immediately upon the the Lessee's option, expiration of the Existing Lease. expiring Jan. 1, 2052. Minimum Annual $320,000 $1M, without a CPI $1,900,000, plus annual CPI escalator Guaranteed Rent escalator. throughout Term,with the exception of Years 1-4 of the Term,during which the City would receive Construction Rent, to account for the reduced revenue to be generated during the construction period (see Construction Rent Period section below). Percentage Rent $0.02 per gallon of $0.04 per gallon of Same as initial term sheet and gasoline and diesel gasoline and diesel fuel. consistent with the appraisals. Rent fuel. amounts are consistent with the 35% of gross parking fee appraisals. 35% of gross revenues. parking fee revenues. 10% of all other Gross Receipts,but with respect 10% of Gross to areas sub-subleased Receipts by Master Sublessee, rent paid by sub- subtenants (and not gross revenues)would be included in Gross Receipts. If Marina Lessee or Master Sublessee operates a retail or restaurant Page 782 of 2461 Commission Memorandum July 29, 2020 Page 15 TERMS AND EXISTING LEASE INITIAL TERM SHEET ANAL AGREEMENT CONDITIONS OF .EASE AGREEMENT establishment, fair market rent for the restaurant or retail establishment will be included in Gross Receipts based on average of what the other tenants are paying. Construction Rent N/A Same percentage rent During the first four years of the Term, Period amount generated from the City would receive Construction existing Area 1 during the Rent,consisting of the greater of either: last lease year prior to the (i) Minimum Annual Guaranteed demolition of Area 1. Construction Rent in the amount of $1,250,000, adjusted annually by CPI or (ii) Percentage Rent of 7.5% of Gross Receipts. The cumulative excess of actual Construction Rent over the Minimum Annual Guaranteed Construction Rent during the four year Construction Rent period would be calculated at the conclusion of Construction Rent period, and payments to the City for such cumulative excess amounts, if any, would be amortized over a period of fifteen(15)years. Submerged Land Lessee is not Same as Existing Lease City to pay SLL Rents through 2052 Lease("SLL")Rents responsible for (same as Existing Lease).New Lessee rents due under the to pay for cost of any expansion to SLL, Submerged Lands if any. In addition, at expiration of the Lease(SLL). SLL Lease that is in place in 2052,New Lessee to pay for 50%of any increases to the SLL Rent for any extended or new SLL Lease, above the rate of the cumulative increase of CPI from 2020 through date of new SLL Lease, up to a cap of$750,000 per year. This cost- share represents a significant improvement over the Existing Lease, which places entire responsibility for SLL lease costs on the City. Capital improvements None 35M over 30 years for $40 million for Marina Improvements Area 2 improvements over 35 years: $15 million in years 1- only. 10, $12.5 million in years 11-20, and $12.5 million in years 21-35). In lieu of default and termination, any amounts unspent to be escrowed with the City for Marina Improvements in subsequent periods,subject to escrow cap of $10M in Year 10, $12.5M aggregate escrow cap in Year 20, and $15M aggregate escrow cap in Year 35. Page 783 of 2461 Commission Memorandum July 29, 2020 Page 16 TERMS AND EXISTING LEASE INITIAL TERM SHEET FINAL AGREEMENT CONDITIONS OF .EASE AGREEMENT Sublease of Area 1 / Permitted with City Initial term sheet The Lease would authorize a Master Upland approval. proposed a bifurcated Sublease over Area 1 to a Master structure,which City staff Sublessee, Marina Park Commercial, could not recommend. LLC. Master Sublessee will be under City Administration and common control with Residential City Attorney's Office Parcel Purchaser, to be executed have worked with Lessee concurrently with the New Lease. on the proposed structure, which retains City to grant Master Sublessee a non- City's strong preference disturbance and recognition to look to the Marina agreement,to permit financing of Area operator as the master 1, separate from any other financing Lessee to fulfill all of the obtained by Lessee. The Recognition obligations under the Agreement, in substantial form, is Lease. included as part of the PSA (Exhibit "4"). Notwithstanding the Master Sublease, the Lessee will be responsible for all of the obligations under the Lease, and City will look to only one party — the Lessee — for compliance with all Lease terms. For clarity, ail development and construction obligations would be in the D.A.,with Developer having the overall responsibility for delivery of the Project. Maintenance and Lessee to operate Not in initial term sheet. New Lessee to continue to maintain Operation of Parking and maintain ail City and operate parking areas, subject to Areas, With Fines in owned or leased maintenance standards included in Lieu of.Default parking needed to New Lease, with failure to maintain serve the marina. subject to fine in lieu of default by the City. In exchange for Lessee's operation The increased Minimum Annual and maintenance of Guaranteed Rent of $1,900,000, the parking, no fees or entire amount of which will be adjusted rent due annually by CPI over the entire Term, is inclusive of a $250,000 annual contribution to cover a portion of City's parking expenses. In,exchange, City would annually provide 850 parking passes (representing $250,000 worth of annual parking passes). The above structure will facilitate creation of a validation system to charge guests and customers of the new commercial facility for parking (at prevailing rates at City parking garages),with the City to receive 35% of such parking revenues. The City anticipates the foregoing will generate increased revenues for the City. Page 784 of 2461 Commission Memorandum July 29, 2020 Page 17 TERMS AND EXISTING LEASE INITIAL TERM SHEET FINAL AGREEMENT CONDITIONS OF .EASE AGREEMENT City Resident Price None. None. Annual fees for wet slips for boats of Protection. less than 40 feet charged to City residents shall not increase by more than five percent (5%) over the prior year's annual fees charged to such Space Lessees, subject to certain parameters. Maintenance and Lessee to maintain Not in initial term sheet. New Lessee agrees to City's detailed Security Standards of the Leased maintenance and the Manna standards Leased Premises, Premises in good for a"world class"Marina, included as with Fines in Lieu of condition and repair part of the Lease, with failure to Default and operate marina maintain subject to fines in lieu of as high-grade first- default by the City. City may engage class marina. consultant every 10 years to revisit standards to ensure world class standard is maintained during the entire 99-year term. Transfers/Assignment Existing Lease does Transfers subject to City New Lease includes City's"Acceptable not cover Transfers Manager approval and Owner" criteria and process for City of interests in the additional restrictions to approval of transfers of controlling Lessee;assignment be agreed in the Marina interests in the Lessee. permitted with Lease; provided that the approval of the City Master Sublease to the City has agreed to clarifications that Manager. Master Sublessee is City approval would not be required for expressly permitted. transfers (i) for REIT tax compliance purposes, (ii) that do not result in any single transferee holding a Controlling interest in Lessee, and(iii)as part of a "going public"transaction(i.e.,an IPO). Termination City may terminate Same as Existing Lease. Same as Existing Lease the Lease following any Event of Default SUMMARY OF MAIN CHANGES SINCE JUNE 24,2020 FIRST READING The Agenda materials at first reading included an exhibit entitled "Update on Terms and Open Issues,"identifying a number of issues that were the subject of the parties'continuing discussions. All open items have been resolved and are reflected in the proposed Agreements, with the key points addressed in this Memorandum. The key changes since first reading include the following: 1. Minimum spends for new Marina Facility, public park and resiliency benefits and the Marina Improvements, including $22,500,000 to be spent on capital improvements to the Commercial Retail Improvements and Park, of which a minimum of$5,million must be spent for Public Benefit Improvements described more fully in Exhibit "8" (including park enhancements, resiliency improvements, Baywalk enhancements, Alton Road right-of-way enhancements, and additional art in excess of the required AIPP contribution), and $17.5 million for the Baseline Commercial Building for the Project, of which not less than $5 million shall be expended for upgrades to the Commercial Retail, Improvements, such as higher ceilings, better quality finishes, and more architectural features). The New Lease also reflects updated minimum spends for the Marina Improvements from $35 million to $40 million. The Page 785 of 2461 Commission Memorandum July 29, 2020 Page 18 foregoing also does not include the value to the City of ownership and control of the Park upon completion, another public benefit discussed below. 2. City ownership and control of 1.0 acre park upon Park Project completion, to ensure dedication of a public park for the benefit of the general public. Since first reading, the parties have continued to discuss whether the 1.0 acre park should be part of the Leased Premises. The parties have now agreed to the Administration's recommended option, namely that the 1.0 acre Park, once constructed, would be held separately from the Leased Premises and owned/controlled outright by the City. The City, in turn, has agreed to permit the Lessee to hold up to 12 special events per year within the new Park, under a master special event permit similar to a master permit in place with City's long-term beach concessionaire. The City would further agree to provide competitive event protection to the New Lessee,to ensure that any special event at the Park does not conflict with the operations of the Marina and its tenants, particularly with respect to boating-related events. 3. Updated Schedule of Performance for delivery of the Project and Final Payment of Purchase Price for Sale of Residential Parcel. A summary of key milestones for the Project, including the Closing, the installment payments for the Sale of the Residential Parcel (including extent to which the various payments are refundable or non-refundable,the target dates for Project Approvals and construction, outside dates for Project Approvals, issuance of Building Permit and Completion of Construction, and the associated remedies to address Project contingencies at each stage of the Project, including liquidated damages or termination, as applicable, is set forth more fully in Exhibit "6." With respect to the final payment of the $40 million balance for the Sale of Residential Parcel, the agreements provide for the final $40 million payment to be made once Developer has satisfied all conditions precedent to Commencement of Construction, namely, when all Governmental Approvals have been obtained,full financing for the Project is in place, and the construction contract for the Project is executed (the 'Construction Conditions"). Until the Construction Conditions are satisfied and the City is thereby assured that the Project is "shovel ready" and can be fully realized, the City has required that the deed to the Residential Parcel must be re-conveyed to the City in the event of an unwinding of the transaction. Although the foregoing has the effect of potentially deferring the final payment of $40 million to the City to a later date (as previously the parties contemplated the final balance would be paid following the Project Approvals, and not prior to Commencement of Construction),the approach is fundamental to protecting the City's interests for the Residential Parcel to revert to the City if the Project cannot be realized, as the Development Site will continue to be the site of the City's only public marina. The approach as to the transaction structure also permits the Developer to avoid complexities with respect to the financing of the Project. 4. Promissory Note for the Balance of the Purchase Price to become interest-bearing after specified date,to account for adjustment to the Maturity Date(as described above)and incentivize early Commencement of Construction, with Residential Parcel Purchaser agreeing that, following the date that is the earlier of (i) ninety (90) days after the Project Approvals (Design Review Board and Planning Board) are obtained or (ii) fifty four (54) months after the Effective Date, the then-remaining balance of the Note would accrue interest at a rate equal to one percent(1.0%)above the LGIP Index Rate(as published by FLCLASS) and, commencing two years thereafter, the rate shall increase by 0.5% above the Interest Rate previously in effect, and shall continue to increase by 0.5% each year thereafter above Page 786 of 2461 Commission Memorandum July 29, 2020 Page 19 the Interest Rate previously in effect, through the Maturity Date (the date the Conditions to Commencement of Construction are satisfied). 5. Liquidated Damages to City in the event Developer fails to meet certain outside dates, including: o Liquidated damages to City of$1,000 per day if Developer fails to obtain Building Permit by Outside Date, with amounts due as condition of issuance of Building Permit; o Liquidated damages to City of $1,000 per day if commercial portion of Project not completed by Outside Date for Completion of Construction, with amounts due as condition of issuance of TCO; o Liquidated damages to City of$1,000 per day if residential portion not completed 5 years from Commencement of Construction, with City ability to terminate D.A. if residential portion of Project is not completed 8 years from Commencement of Construction. 6. New Lessee's,agreement to build a $22.5 million Alternate Replacement Facility in the event Development agreement is terminated, to ensure City receives benefit of its bargain: a new replacement facility for the Miami Beach Marina,with liquidated damages to City in the amount of$1,000 per day under New Lease, if Alternate Replacement Facility and park are not completed within 5 year period, and with City ability to terminate the New Lease if completion is not achieved 18 months thereafter. The New Lease includes a detailed process for City approval of the Alternate Replacement Facility,with mandatory project elements for the Alternate Replacement Facility, which would include a maximum of 75,000 square feet,the$22.5 million minimum spend noted above, and delivery of the 1-acre park to the City. 7. New Lessee's agreement to specific Marina Standards for "world-class" Marina, with consolidated maintenance obligations, for the new Replacement Facility (or Alternate Replacement Facility), Baywalk, Area 2 submerged lands and Parking Areas, with detailed schedule of fines in lieu of default, and with the Lease further providing for the City's right to retain a third party consultant to update the Marina Standards every 10 years to ensure world- class standards are maintained (as such standards may evolve in the industry) over the life of the New Lease. 8. New Lessee's agreement to City's Acceptable Owner criteria for transfers of controlling interests in the Lessee, in addition to City's approval of any new operator for the Marina. The New Lease terms represent a significant improvement over the Existing Lease, which does not provide for City approval of such transfers or include requirements as to Acceptable Owners (i.e., with no felony convictions, bankruptcies within a specified period of time, etc). 9. New Lessee's agreement to pay for certain increases in rent owed to the State in connection with the Submerged Lands Lease. The New Lease terms represent a significant improvement over the Existing Lease, which places all of the foregoing responsibilities on the City. The cost-sharing approach with respect to increases to the SLL rent are described in the Lease table, above. EXISTING SUBLEASES As referenced above, the Development Site is currently subject to the Existing Marina Lease and the associated commercial, retail and restaurant subtenants (a complete list of which is included as an exhibit to the PSA as part of Exhibit"4" hereto), including Monty's Sunset, LLC("Monty's"). In 2011, the City granted Monty's a non-disturbance agreement, which provides that in the event Page 787 of 2461 Commission Memorandum July 29, 2020 Page 20 the Existing Marina Lease is terminated, Monty's may continue its tenancy pursuant to the same terms and conditions of its current sublease (provided that Monty's is not in default thereof). The City, however, is not a party to the Monty's sublease. For this reason,the City is not involved in any manner in, and is not a party to, the ongoing litigation between the Lessee and Monty's, in the pending case, Miami Beach Marina Assoc., Ltd. v. Monty's Sunset, LLC, Case No. 2019- 033590-CA-01. The Monty's sublease expires on December 31, 2021, provided, however, that if the Lessee exercises its ten-year renewal option, then Monty's would similarly be entitled to a renewal of its sublease for the same ten-year renewal period exercised by the Lessee. However, if the Lessee, at its sole discretion, does not exercise its right of renewal under the existing Lease, then the existing Lease would expire on January 1, 2022 (and the Monty's sublease would expire on December 31, 2021, in accordance with its terms), before the New Lease takes effect, on Jan. 1, 2022, immediately upon the expiration of the Existing Lease. As noted above in the chart outlining the Development Agreement and PSA terms, the DA and PSA provide for a closing on the Sale of Residential Parcel or before March 15, 2021.Additionally, the DA and PSA provide for contingencies in the event the New Lease is successfully challenged and is terminated, voided or otherwise deemed ineffective by a court of competent jurisdiction. Specifically, in such event, the Lessee shall be deemed to have exercised its option to renew the Existing Marina Lease as of March 31, 2021, and the first ten (10) year renewal term of the Existing Marina Lease conclusively shall be deemed to have commenced as of January 1, 2022. In the event that the New Lease is successfully challenged and the Existing Marina Lease remains in effect, the Project will not be able to proceed. Accordingly, the remaining agreements would be terminated, and the Residential Parcel would be deeded back to the City. The City, in turn, would refund the installment payments paid to City (up to $15 million) via a rent credit to be amortized over a period of 10 years, provided that if the rent credit exceeds $10 million, the amortization period would be extended to 15 years, so that the rent credit would not exceed $1 million in any given year. In addition, if the Project proceeds and Developer successfully obtains the Project approvals,the Developer is required, prior to the commencement of construction, to provide the City with evidence of either termination of current subleases, releases from sublessees, or amendments to all unterminated subleases evidencing the applicable sublessees' agreement to vacate the Development Site to permit the Project to be constructed, or shall otherwise indemnify the City for any claims in connection with the subleases. Ultimately, it is the responsibility of the existing Lessee and the New Lessee to make all appropriate arrangements with then-existing sublessees, as the City is not in privity of contract with respect to the subleases. To this end, Developer and Lessee have agreed to fully indemnify, defend, and hold harmless the City in connection with any of the foregoing. THE PROPOSED VACATION OF THE CITY RIGHT-OF-WAY AREA Although the portion of Alton Road that lies north of 5th Street is considered a state road ownea and maintained by the Florida Department of Transportation, the portion of Alton Road that is located south of 5th Street is a City road. As described above, the Developer has requested that the City vacate a portion of Alton Road, namely the City Right-of-Way Area which consists of the western half of Alton Road that lies Page 788 of 2461 Commission Memorandum July 29, 2020 Page 21 adjacent to the City-owned properties that are part of the Development Site(Folio Nos. 02-4203- 009-9210, 02-4203-000-0010, and 02-4203-009-9250). Currently, as to the Right-of-Way Area, the City holds a right of way dedication, which confers on the public an exclusive right of use, so long as the City Right-of-Way Area is used for the purpose of the dedication (namely, for pedestrian and vehicular access). The vacation of a right-of-way is a legislative act within the exercise of the City Commission's discretion, if the City Commission determines the vacation is in the public interest. See, e.g., Robbins v. White, 42 So. 2d 841 (1907); City of Temple Terrace, Fla. v. Tozier, 903 So. 2d 970 (Fla. 2d DCA 2005). If approved, the vacation would be effectuated by the City Commission's adoption of a resolution authorizing the vacation. By operation of law, once the City vacates the City Right-of-Way Area, the underlying fee interest vests with the current abutting property owner. See, e.g., Servando Bldg. Co. v. Zimmerman, 91 So. 2d 289 (Fla. 1956); Smith v. Horn, 70 So. 435 (Fla. 1915); Hurt v. Lenchuk, 223 So. 2d 350 (Fla. 4th DCA 1969) ("When a street is lawfully vacated, title to the area vacated vests in the adjoining property owners."). Accordingly, once the City vacates the Right of Way,the underlying fee interest in the City Right- of-Way Area reverts to the City, as the current abutting property owner of the Development Site. For this reason, the proposed vacation of the City Right-of-Way Area materially differs from prior vacations approved by the City Commission. Here,the City would be vacating a right of way in favor of itself as the owner of the abutting property. It is vitally important to note that under this construct the entirety of Alton Road south of 5th Street— including the vacated City Right-of-Way Area --would remain under the City's complete control. This remains true both before and after the vacation is effectuated. The vacated City Right-of-Way Area would be a stand-alone parcel. It will carry a separate metes and bounds description designed to ensure that this area remains under the City's direct control and is separate from the Development Site. As such, the proposed vacation raises no concern about public access whatsoever, as the City would retain complete ownership and control of Alton Road at all times, and the rights of the public to the continued use of Alton Road will not be diminished or altered in any way. The proposed vacation of the City Right-of-Way Area would result in the City vacating approximately 25,500 square feet of existing right of way. By vesting the City with the fee interest in the City Right-of-Way Area, the vacation would permit the City, pursuant to the Development Agreement, to structure the transaction to include the vacated City Right-of-Way Area and the upland Development Site as part of a unified development site, and to aggregate the vested development rights on the unified abutting parcels through a covenant in lieu of unity of title, as permitted by Section 1.03(c) of the City Charter (without referendum) and Section 118-5 of the City Code, which provides that property owners with fee simple title to abutting parcels may execute a covenant in lieu of unity of title, to aggregate its development rights on those unified abutting parcels. The 25,500 square feet associated with the City Right-of-Way Area are accounted for within the appraisals set forth in Exhibit"7", as each appraiser assumed a developable project of 275,000 square feet of residential, and 45,000 square feet for the commercial components of the Project, which otherwise cannot be accomplished without the City Right-of-Way Area. The foregoing benefit to the Developer associated with the proposed vacation would only be available if the City Commission approves the Project, including the(1)Development Agreement, (2)Sale of Residential Parcel, and (3)New Lease. In addition,as the Project cannot proceed without voter referendum approval of the Sale of Residential Parcel and the New Lease pursuant to the City's Charter,the proposed vacation would be subject to and contingent Page 789 of 2461 Commission Memorandum July 29, 2020 Page 22 upon approval of the Sale of Residential Parcel and New Lease by a majority of the voters voting in a Citywide referendum.Accordingly,if the voters do not approve any component of the Project, the proposed vacation would not be effectuated. FLOOR AREA RATIO CALCULATIONS. For clarity now and in the future administration of this transaction, the parties believe it best to explicitly set forth the manner and method of calculating the available floor area to be included within the overall Project, as follows: 1. The Development Site. As set forth above and in Exhibit "1", the Development Site would consist of Area 1 (north 10 feet of lot 21 and all of lots 22-29) Lots 30-31 ("Lots 30/31"), and the City Right-of-Way Area. Area 1 contains 122,983 square feet. Previously, 174,388 feet of residential floor area from Area 1 was transferred from Area 1 to the SSDI South Site for inclusion within a residential project, pursuant to the terms of the SSDI Development Agreement dated April 17, 1986("SSDI DA").At the time of the transfer,3.5 was the maximum residential FAR on the Marina Site. That FAR yielded 430,440 square feet of floor area from which 174,388 was subtracted and transferred pursuant to the SSDI DA leaving a remaining balance of 256,052 of developable floor area. With respect to Lots 30-31, all of the developable floor area from Lots 30-31 was previously transferred for inclusion within another residential project. Accordingly, as Lots 30-31 do not add any available floor area that may be included within the Project, there is a total remaining balance of 256,052 of developable floor area. 2. The City Right-of-Way Area. As set forth above and in Exhibit "1", the to-be vacated City Right-of-Way Area consists of 25,500 square feet. At an FAR of 2.5, the City Right-of-Way Area yields 63,750 square feet of available floor area. 3. Total Project Floor Area. If the City Commission approves the proposed vacation and the Developer satisfies the conditions of the Vacation Resolution,the total floor area of the Project would represent the sum of(1)and (2), in the amount of 319,802 square feet of developable floor area. FINANCIAL iMPACTIECONOMIC DEVELOPMENT The appraisals, attached as Exhibit"7", have demonstrated that the current Marina Lease which provide that the City is entitled to 10% of gross revenue is consistent with the market value in South Florida. The extension of the lease, along with the increase in minimum lease payments, will bring about a significant increase to the net present value of the Lease, and guarantee a revenue stream that is higher than the highest yield of any year to date. In addition,the proposed $62.5 million in capital improvements will keep the asset positioned to be a premier facility generating significant revenue for many years to come. Since the initial term sheet offer to increase the base rent from $300,000 to $1 million per year, the City has been able to negotiate a Minimum Annual Guaranteed Rent of $1.9 million per year, plus annual CPI increases. The foregoing $1.9 million per year is inclusive of a $250,000 annual contribution toward the City's existing annual parking expenses, which collectively amounts to a much better net revenue position for the City. The development of Area 1, including a publicly accessible green space, will have significant public benefits, in addition to the $55 million in cash payments for the Sale of Residential Parcel. As set forth above, if approved by the voters in a citywide referendum, the proceeds from the Page 790 of 2461 Commission Memorandum July 29, 2020 Page 23 Sale of Residential Parcel would come to the City incrementally, with $5 million deposit due by January 31, 2021, and paid to City at closing (on or before March 15, 2021), $5 million due on or before January 1, 2022, $5 million due on or before September 1, 2022 (with dates subject to extension/tolling as outlined above), and the balance due prior to Commencement of Construction,with all payments, except the$5 million paid at closing,evidenced by the promissory note that is secured by a first mortgage on the Residential Parcel, pursuant to the PSA. The updated appraisals of $87 million and $70 million are very much in line with the $55 million in cash and the updated minimum spends for the$22.5 million in guaranteed capital investments in the City-owned upland facilities, even without considering the benefits from the other components of the entire transaction, such as the updated minimum spends for the Marina Improvements —which have been increased from $35 million to$40 million —or the value to the City of outright ownership and control of the completed 1.0 acre public park, which will be dedicated for the benefit of the general public. As a cumulative deal,the Marina Park Project makes significant financial improvements to the Existing Marina Lease. The public investments, along with the cash payments to the City, will result in nearly $120 million of value, not including the value to the City of the public park, as noted above. That value, coupled with job creation, increased ad valorem tax base, and what will likely be another more than $50 million in net present value according to the appraised Lease terms, will result in a major economic gain to the City, making the transaction worthy of consideration by the City Commission and the City's voters. THE APPROVALS REQUIRED FOR THE VARIOUS PROJECT ELEMENTS The New Lease and Sale of Residential Parcel. Pursuant to Section 82-37 of the City Code, the New Lease and the Sale of Residential Parcel would each require two readings before the City Commission, with the second reading being a public hearing. As the New Lease and Sale of Residential Parcel would require the waiver of competitive bidding under Section 82-39 of the City Code, the New Lease and Sale of Residential Parcel would be subject to approval by a 5/7 vote of the City Commission. A waiver of bidding pursuant to Section 82-39 of the City Code is the only possible option for this transaction at this time, as the Lessee has an existing Lease with 32 years remaining in the term, and the Lessee and its affiliated entities are the only parties to which the City is able to negotiate with prior to the expiration of the Existing Lease. Development Agreement for the Project. The Development Agreement would require two readings/public hearings before the City Commission, as well as review by the Planning Board. The Development Agreement may be approved on a 4/7th vote of the City Commission. Vacation of City Riaht-of-Way Area. The vacation of a portion of the City Right-of-Way Area, which would be accomplished pursuant to Section 82-37 of the City Code and Section 1.03(b)(4) of the City Charter, would require approval by a 4/7ths vote of the Planning Board, and approval by a 617ths vote of the City Commission, following two readings, with the second reading being a public hearing. The Proposed LDR Amendments. The Proposed LDR Amendments require two readings, with the second reading being a public hearing, and approval by a 5/7ths vote of the City Commission. The Proposed Comprehensive Plan Amendments require two readings and public hearings, and approval by the City Commission. Page 791 of 2461 Commission Memorandum July 29, 2020 Page 24 Voter Referendum Requirement. Finally, in addition to the heightened City Commission supermajority approval requirements set forth above, the New Lease and Sale of Residential Parcel will each require approval by a majority of the voters voting in a Citywide referendum pursuant to Section 1.03(b)(1) of the City Charter. CONCLUSION Based on the significant financial and other public benefits associated with the Marina Park Project as outlined above, the Administration recommends that the City Commission approve the Marina Park Project transaction on second reading, including (1) the Development Agreement, which shall include the terms and conditions for the design, permitting and construction of the Marina Park Project, at the Developer's sole cost and expense, including resiliency and other capital improvements; (2)the City's Sale of the Residential Parcel within which the approximately 275,000 square foot residential portion of the Marina Park Project is to be constructed; (3) the City's 99 year New Lease for the Marina; and (4)the proposed vacation of the City Right-of-Way Area, provided that the proposed vacation shall also be subject to and contingent upon approval of the New Lease and the Sale of Residential Parcel by a majority of the voters voting in a city- wide referendum, pursuant to section 1.03(b)(1)of the City Charter. Attachments: Exhibit 1 — Development Site Survey/Legal Description (including City Right-of-Way Area) Exhibit 2— Planning Analysis Exhibit 3 — Development Agreement (and exhibits thereto) Exhibit 4-Purchase and Sale Agreement(and exhibits thereto) Exhibit 5—Lease Agreement (and exhibits thereto) Exhibit 6—Summary of Key Milestones, Payments and Project Contingencies Exhibit 7— Independent Appraisals (CBRE, Inc. and Walter Duke) Exhibit 8 —Public Benefit Improvements for the Project Page 792 of 2461 Page 793 of 2461 . "..,. •. .....'14.6**. .-... • • ...43k4.. •• ,• . .1Y),..t. .• , ' ,I. „.'... , ., -• .. .4. . . .' `'---..°•4'.7. ' N.-1. . • . , - --.---. i- , . , -,.. • , ••., , : A h'1 A 1 • • 2 ..,,, 7 ' .. ;''.."...-?.. ,•. .. , ... . • ••• - , . '1,-,, •, • . -,..,,;,: ,4- ., i,, . . •_._. . ... - -- . ... • • . I I A 1•7 A 2 _7_.._.:,.. ,...... . ,' ,•.' :-7.:.`.'.,,.,,,,,. ...i.,:;;:.-..•7r2,11, ; . T..I •V1el'A A P1 4 3 A t i 0 N 1... f 4 A I 2• ...!.. • . ' L .........• •. ? 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Al1155 romMOM.2muP 1.0 ROY 2M om m 54996.2 a/1IC a 1'a. - 0 ,¢.001 �,6• Mann Inn w,K 1�4 ® MOW suet 52070715091 11-15 O1M.1.4.1099 a 'O'� a.1' I 01951915 m,a 01'ma¢s as 9109 a m_ftm+a F57 l� 0 moo 0¢01...1'm mom 0 ' -j- moRr awns. a 1409.lima LK ano,oe r' O a w Se/maim-Skase.&Asses a1'...Sew. • we 9155 man. 1'1 ew......,51a...4mar ---1---�--j 212 M MKS.a 00 44955 NO Mai=2 Mr DMA.0pL M4197 _ _ 1201-40 MT (ELEVATIONS SHOWN HEREON RCLATE TO 9471LR44L GEODETIC 194914.EM728 OF 1929(19.29.0.29)AND ARE ExPRLSSEo M FEET.] ...Rod.Y$, Aim.,01a nai01041 _. _ -_ _ AW/MAW 0.0030•1ow OW;NWS OM In an REVISIONS • JJ': zadazfrD 'ZLR _U.1irir_ .SeZsove e-.S.(14(;&4c cg 4 . Tete. SLR m Rau Dole A.m.rt• DM LAND MAMMAS • 574814115RS • LAND 3ORY5E0R9(LAW) """"� _ A portion of Block 111, "OCEAN BEACH FGA. ADDITION NO. 3 according to the plat thereof, t1.o 80419911'+Ear NFNAMur,2FORIw 33024 Tn.No.(914M5e-7010 Mr 150.(054)430-910. "�'" "` as recorded in Plat Book 2, at Page 81, of the Public Records of Bade County, Florida + - 99 W- co.s-t1' 0411„1 Ir 054 Wee-w•.. This O a 'Boundary Sl a y- m-I•i1•. .-.'� -.--- Wrt EI4w®4 lse w.r.oa y� �4 19.41001..4155 r 4141•*. 1.. 19.4 _ _ • _ - TY1Gh7BER IIlTB adjacent submerged lands lying in Section 3, Township 54 South, Range 42 r_aD FM e OW,r11�WI brew r East, City of Miami Beach, Miami Dade County, Florida yaw. .,,,.f MO. ......AJ 4058. -IStrw 0.550. - --- -- _ re..... . . r... Page 796 of 2461 • City of Miami Beach, '700 Co^venticn Ce^.er Drive. Marr'Bead. '1or'dc 33139.www.mia—ibecch:.gov PLANNING DEPARTMENT MEMORANDUM TO: Jimmy L. Morales, City Manager FROM: Thomas R. Mooney, AICP, Planning Director DATE: June 24, 2020 SUBJECT: PLANNING ANALYSIS OF PROPOSED MARINA PARK REDEVELOPMENT PROJECT(INCLUDING LONG-TERM LEASE, SALE DEVELOPMENT SITE AND AIR PARCEL, DEVELOPMENT AGREEMENT, AND VACATION OF A PORTION OF THE ALTON ROAD RIGHT OF WAY). BACKGROUND Section 82-38 of the Code of the City of Miami Beach requires that any proposed sale or tease of City-owned land be analyzed from a planning perspective so that the City Commission and the public are fully apprised of all conditions relating to the proposed sate or lease. The proposal is for the following related to the Miami Beach Marina site, located at 300-344 Alton Road: 1. Lease agreement for the Miami Beach Marina, for a term (including renewals) of 99 years. The term includes a commitment to spend an additional $50 million for improvements to the area. 2. Sale of a portion of the development site and air parcel within which the approximately 275,000 square foot residential portion of the Marina Park Project is to be constructed (Residential Parcel). 3. Approval of a development agreement that grants the developer the rights to use all of the available development rights from the underlying city-owned property and the to-be-vacated ROW (discussed below). 4. The vacation of the western half of the Alton Road right of way (ROW) abutting the City-owned parcels at 300-344 Alton Road, consisting of approximately 25,500 SF. Upon the vacation of the ROW, the ownership of the land would revert to the City, however, the development rights would be incorporated into the development on the abutting parcels. Together with an amendment to the Comprehensive Plan and the Land Development Regulations, these items would allow for the Marina Park Project, which would include an approximately 385 foot tall building with approximately 275,000 gross square feet containing 60 residential units, and approximately 45,000 square feet for a new marina building and accessory restaurant, retail, office and marina uses. The proposal would also create a one- acre park which would be open to the general public, enhancements to the baywalk, and resiliency improvements. ANALYSIS The following is an analysis of the proposal based on the criteria delineated in the Code: Page 797 of 2461 Planning Analysis of Proposed Marina Park Redevelopment Project(Including Long-Term Lease, Sale of Air Rights,'Development Agreement, & Vacation of a Portion of the Alton Road Right of Way) June 24, 2020 Page 2 of 4 Whether or not the proposed use is in keeping with city goals and objectives and conforms to the city comprehensive plan. Partially Consistent — The proposed use would be consistent with the 2040 Comprehensive Plan as proposed to be amended. A separate companion item to amend the Comprehensive Plan and authorize Public-Private Marina Redevelopments on parcels with a"Public Facility: Governmental Uses(PF)"future land use designation is proposed. Should this amendment not be adopted, then the proposed use would be inconsistent with the Comprehensive Plan. Because the proposed redevelopment would allow for significant resiliency enhancements to be built on the site for the benefit of the surrounding community, the proposal is consistent with Principle 1: Developing a Resilient Future, of the Resilient Land Use Element of the 2040 Comprehensive Plan, which states the "The City shall encourage redevelopment that contributes to community resiliency by meeting all required peril of flood mitigation and storm hazard standards for on-site development and shall also prioritize energy efficient development that provides stormwater mitigation, and co-benefit features that contribute to the City's resiliency as a whole." Since the proposal will allow for the development of a new waterfront park, the proposal is consistent with Objective ROS 1.1: Waterfront Parks, which requires that the City "preserve beach and waterfront parks and continue to improve park access to water-related uses." Since'the developer will build a one-acre park, it is consistent with Objective ROS 1.4: Open Space which is "to requires open space in conjunction with every new public and private sector development project (measurability dependent upon development applications) to maintain levels of service, as well as for increased pervious area to support natural stormwater collection during extreme rain events." Since the development will enhance and improve pedestrian access to the baywalk, the proposal is consistent with Policies ROS 1.1.5 and ROS 1.1.6, which call for waterfront and pedestrian access to Biscayne Bay and the shoreline. 2. The impact on adjacent property, including the potential positive or negative impacts such as diminution of open space, increased traffic, noise level or enhanced property values, improved development patterns and provision of necessary services. Based on the proposed use of the property, the city shall determine the potential impact of the project on city utilities and other infrastructure needs and the magnitude of costs associated with needed infrastructure improvements. Should it become apparent that further evaluation of traffic impact is needed, the proponent shall be responsible for obtaining a traffic impact analysis from a reputable traffic engineer. Consistent—No negative impacts are anticipated by the proposal. Ownership of the ROW being vacated by the City will remain with the City'andfunction in the same manner. The C-PS4 zoning district allows for a maximum floor area ratio(FAR)of 2.5. Vacation of the 25,500 SF of ROW will allow approximately 63,750 SF of additional floor area to be developed within a unified development site with the adjacent City- owned parcels. Page 798 of 2461 Planning Analysis of Proposed Marina Park Redevelopment Project(Including Long-Term Lease, Sale of Air Rights, Development Agreement, & Vacation of a Portion of the Alton Road Right of Way) June 24, 2020 _ _ Page 3 of 4 • Though a ROW is proposed to be vacated, no construction is being proposed within the vacated ROW; therefore, there will be no diminution of sidewalks or vehicle travel lanes. While it would not be considered a dedicated ROW, the fee interest in the ROW will held by the City and the ROW will continue to operate in the same manner, for public pedestrian and vehicular uses. • Vacation of the ROW will not affect the transportation network, as vehicular access will be maintained. • The use of the floor area that is made available from the vacation of the ROW could potentially generate up to approximately 21 peak hour trips if used for residential purposes. This does not represent a significant increase in peak hour volumes from what is otherwise permitted on the site. A traffic study will have to be provided as part of the design review process. Additionally, the development will be subject to the payment of Mobility Fees which are used to improve the City's transportation network. • No noise level impacts are anticipated from the proposal. The anticipated , commercial uses on the site should have fewer noise impacts than those existing on the site today. • The appearance of the property will improve with a public park, an iconic residential building, and better urban design. These improvements should enhance surrounding property values. • The proposal is not expected to impact adopted levels of service for public infrastructure. The development contains several enhancements that can improve levels of service related to recreation and open space and stormwater management. However, compliance with concurrency must still be determined and mitigated in conjunction with the building permit process. 3. A determination as to whether or not the proposed use is in keeping with a public purpose and community needs, such as expanding the city's revenue base, creating jobs, creating a significant revenue stream, and improving the community's overall quality of life. Consistent - This proposal expands the City's revenue by increasing the lease payments and adds additional taxable area to the tax rolls. The sale of the Residential Parcel will provide significant revenue to the City. The improvements to the site serve a public purpose and serve a community need by creating a new park, enhancing access to the waterfront,and providing infrastructure for the mitigation of sea level rise and improved stormwater management. • 4. A determination as to whether or not the development is in keeping with the surrounding neighborhood,will block views or create environmental intrusions, and evaluation of the design and aesthetic considerations of the project. Consistent - Thesurrounding neighborhood will not be negatively affected. The development will contain large side yard setbacks so views from surrounding buildings will be minimally impacted. No environmental intrusions will be created. 5. The impact on adjacent properties, whether or not there is adequate parking, . street and infrastructure needs. Consistent —Vacation of this ROW will not affect the parking needs, as parking for the site will continue to be provided in the same manor and parking requirements must Page 799 of 2461 Planning Analysis of Proposed Marina Park Redevelopment Project(Including Long-Term Lease, Sale of Air Rights, Development Agreement, & Vacation of a Portion of the Alton Road Right of Way) June 24, 2020 Page 4 of 4 be met. Infrastructure impacts will be beneficial to adjacent properties, as the proposal calls for making many improvements to the City's stormwater system. 6. Such other issues as the city manager or his authorized designee, who shall be the city's planning director, may deem appropriate in analysis of the proposed disposition. Not applicable -The Planning Department has no other issues it deems appropriate to analyze for this proposal. CONCLUSION The proposed long-term lease, sale of the Residential Parcel, development agreement, and vacation of a portion of the Alton Road right of way is supported the Goals, Objectives, and Policies of the Comprehensive Plan based on the proposals for the property, and the use will be consistent with the Comprehensive Plan as proposed to be amended. The proposal should generate no negative impacts for the surrounding area. The property would continue to serve a public purpose, as a 1.0 acre park will be created for the benefit of the general public, the baywalk will be improved, and new infrastructure will be provided. Page 800 of 2461 Page 801 of 2461 Development Agreement 2020- FOR THE DEVELOPMENT OF THE MARINA PARK PROJECT Page 802 of 2461 DEVELOPMENT AGREEMENT between Marina Park Residential,LLC and Marina Park Commercial,LLC and CITY OF MIAMI BEACH,a Florida municipal corporation Page 803 of 2461 TABLE OF CONTENTS ARTICLE I VOTER REFERENDUM,EFFECTIVE DATE AND DEFINITIONS 2 Section 1.1 Voter Referendum Requirement 2 Section 1.2 Effective Date 2 Section 1.3 Defined Terms 2 Section 1.4 Exhibits 19 Section 1.5 Interpretation 19 Section 1.6 Recitals 19 ARTICLE II DEVELOPMENT OF THE PROJECT 19 Section 2.1 Development and Conformity of Plans 19 Section 2.2 Plans and Specifications 20 Section 2.3 Approved Plans 21 Section 2.4 Developer's Project Obligations 22 Section 2.5 Payment of Project Costs 22 Section 2.6 Financing Matters 23 Section 2.7 Intentionally Deleted 23 Section 2.8 Prosecution of the Work 23 Section 2.9 Construction Obligations 24 Section 2.10 Pre-Construction Period 24 Section 2.11 Conditions Precedent to Commencement of Construction 27 Section 2.12 Construction Obligations 29 Section 2.13 Progress of Construction/City's Representative 30 Section 2.14 Intentionally Deleted 31 Section 2.15 Connection of Buildings to Utilities 31 Section 2.16 Permits and Approvals 32 Section 2.17 City and Developer to Join in Certain Actions 32 Section 2.18 Compliance with Laws 32 Section 2.19 Art in Public Places 32 Section 2.20 Adjustment to Legal Descriptions 32 Section 2.21 Sales Trailer 32 Section 2.22 Public Benefit Improvements 33 ARTICLE III LAND USES AND DEVELOPMENT OBLIGATIONS 34 Section 3.1 Covenant Regarding Land Uses 34 Section 3.2 Applications for Development Approvals and Development Permits 34 Section 3.3 Concurrency 35 Section 3.4 Compliance with Local Regulations Regarding Development Permits 35 Section 3.5 Consistency with the City's Comprehensive Plan 35 Section 3.6 Presently Permitted Development 36 Section 3.7 Public Facilities to Serve the Development Site 36 Section 3.8 Public Reservations,Dedications 36 Section 3.9 Required Development Permits 36 Section 3.10 Laws Governing this Agreement 36 Section 3.11 Duration of Development Rights 36 i Page 804 of 2461 ARTICLE IV PROJECT IMPROVEMENTS AND USES 37 Section 4.1 Project Improvements and Uses 37 Section 4.2 Representations 39 ARTICLE V ASSIGNMENT 40 Section 5.1 Purpose of Restrictions on Transfer 40 Section 5.2 Transfers 40 Section 5.3 Permitted Transfers 40 Section 5.4 Transfer Requiring City's Approval 42 Section 5.5 Effectiveness of Transfers 43 Section 5.6 Reservation of Rights 43 ARTICLE VI CONSTRUCTION FINANCING;RIGHTS OF MORTGAGEE,MEZZANINE LENDER AND DEVELOPER 43 Section 6.1 Conditions of Construction Financing, First Mortgage and Mezzanine Loan 43 Section 6.2 No Waiver of Developer's Obligations or City's Rights 48 Section 6.3 Insurance Proceeds 48 Section 6.4 Third Party Beneficiary 49 Section 6.5 Completion of Construction of the Commercial Retail Project and Park 49 ARTICLE VII REMEDIES;EVENTS OF DEFAULT 49 Section 7.1 , Default by Developer 49 Section 7.2 Remedies for Developer's Default 52 Section 7.3 Default by the City 55 Section 7.4 Unavoidable Delay;Third Party Challenges;Termination Rights 56 Section 7.5 Remedies Cumulative;Waiver 58 Section 7.6 Intentionally Deleted 58 Section 7.7 Survival of Reciprocal Easement Agreement 58 Section 7.8 Dispute Resolution 58 Section 7.9 Expedited Arbitration of Development Disputes 59 Section 7.10 Disputes Regarding Disapproval of a Proposed Transferee 61 Section 7.11 Disputes Regarding Diligent Prosecution 62 ARTICLE VIII PROTECTION AGAINST MECHANICS'LIENS AND OTHER CLAIMS; INDEMNIFICATION 63 Section 8.1 Developer's Duty to Keep Proiect Free of Liens 63 Section 8.2 Discharging and Contesting Liens 63 Section 8.3 Indemnification 64 Section 8.4 Environmental Matters 65 Section 8.5 Limitation of City's Liability 68 ARTICLE IX RISK OF LOSS, INSURANCE AND RECONSTRUCTION 69 Section 9.1 Risk of Loss 69 Section 9.2 General Insurance Provisions FOPENi 69 Section 9.3 Evidence of Insurance 69 Section 9.4 Required Coverages 70 Section 9.5 Premiums and Renewals 70 ii Page 805 of 2461 Section 9.6 Adequacy Of Insurance Coverage 71 Section 9.7 City May Procure Insurance if Developer Fails To Do So 71 Section 9.8 Effect of Loss or Damage 71 Section 9.9 Proof of Loss 71 Section 9.10 Insurance Proceeds 71 Section 9.11 Waiver of Subrogation 71 Section 9.12 Inadequacy of Insurance Proceeds 72 Section 9.13 No-City Obligation to Provide Property Insurance 72 Section 9.14 Compliance 72 Section 9.15 Right to Examine 72 Section 9.16 Personal Property 72 ARTICLE X MAINTENANCE AND REPAIRS 72 Section 10.1 Standards Generally 72 Section 10.2 Utilities 72 Section 10.3 Intentionally Deleted 72 Section 10.4 Removal of Trash 72 Section 10.5 Excavation of Land 73 Section 10.6 Water and Sewerage System 73 Section 10.7 Industrial Waste Facilities 73 Section 10.8 Inspections 73 Section 10.9 Failure of Developer to Maintain 73 ARTICLE XI MISCELLANEOUS PROVISIONS 74 Section 11.1 No Partnership or Joint Venture 74 Section 11.2 Recording 74 Section 11.3 Florida and Local Laws Prevail 74 Section 11.4 No Conflicts of Interest/City Representatives not Individually Liable 74 Section 11.5 Notice 74 Section 11.6 Estoppel Certificates 75 Section 11.7 Titles of Articles and Sections 76 Section 11.8 Counterparts 76 Section 11.9 Successors and Assigns;No Third Party Beneficiaries 76 Section 11.10 Entire Agreement 77 Section 11.11 Amendments 77 Section 11.12 Non-Subordination of City's Interest 77 Section 11.13 City Manager's Delegated Authority 78 Section 11.14 Holidays 78 Section 11.15 No Brokers 78 Section 11.16 No Liability for Approvals and Inspections 78 Section 11.17 Radon 78 Section 11.18 Developer Entity 78 Section 11.19 Inflation Adjustments 78 Section 11.20 Standard of Conduct 79 Section 11.21 Waiver of Consequential Damages 79 Section 11.22 Reservation of Rights 79 Section 11.23 Reimbursement 79 iii Page 806 of 2461 List of Exhibits EXHIBIT"A"ACCEPTABLE OWNER DEFINITION EXHIBIT"B-1" LEGAL DESCRIPTION OF THE LAND EXHIBIT"B-2"LEGAL DESCRIPTION OF RESIDENTIAL PARCEL EXHIBIT"C"COVENANT IN LIEU OF UNITY OF TITLE EXHIBIT"D" LEGAL DESCRIPTION OF THE CITY ROW AREA EXHIBIT"E"ARTICLES OF ORGANIZATION OF DEVELOPER EXHIBIT"F"MANDATORY PROJECT ELEMENTS EXHIBIT"G"FORM OF MARINA LEASE EXHIBIT"H"PUBLIC BENEFIT IMPROVEMENTS EXHIBIT"I"PROJECT CONCEPT PLAN EXHIBIT 7"FORM OF PURCHASE AND SALE AGREEMENT EXHIBIT"K"FORM OF RECIPROCAL EASEMENT AGREEMENT EXHIBIT""1"LEGAL DESCRIPTION OF COMMERCIAL RETAIL PREMISES EXHIBIT"M" PRESENTLY PERMITTED DEVELOPMENT EXHIBIT"N" REQUIRED DEVELOPMENT PERMITS AND VARIANCES EXHIBIT"0" PUBLIC FACILITIES EXHIBIT"P"PUBLIC RESERVATIONS AND DEDICATIONS EXHIBIT"Q" SHELL AND CORE IMPROVEMENTS OF BASELINE COMMERCIAL BUILDING EXHIBIT"R"OWNERSHIP INTERESTS IN DEVELOPER EXHIBIT"S"CONSTRUCTION AGREEMENT REQUIRED CLAUSES EXHIBIT"T"FORM OF PAYMENT BOND AND PERFORMANCE BOND ADSLLP-00079793.16 iV Page 807 of 2461 DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT ("Agreement") is executed on the day of 2020, by and between the CITY OF MIAMI BEACH, FLORIDA, a municipal corporation (the "ay"), and MARINA PARK RESIDENTIAL, LLC, a Delaware limited liability company ("Residential Developer") and MARINA PARK COMMERCIAL, LLC, a Delaware limited liability company ("Commercial Retail Developer" and together with Residential Developer,collectively,jointly and severally,the"Developer"). RECITALS: A. The City has a material interest in maximizing the performance of the Miami Beach Marina (as hereinafter defined in Section 1.3), enhancing the neighborhood by encouraging neighborhood-oriented commercial and retail spaces,improving the resiliency of such uses and providing substantial public green space in the City. To further those goals, the City desires to facilitate the development of the Marina Park Project(as hereinafter defined in Section 1.3)on real property owned by the City and described more fully in Exhibit"B-i"(the"Land"),and a portion of the Land with a maximum of 0.3 acres and a parcel of air located above the Land to be owned by the Residential Developer and described more fully on Exhibit"B-2" (collectively,the "Residential Parcel" and together with the Land, collectively,the"Development Site").' B. The City is a Florida municipal corporation with powers and authority conferred under the Florida Constitution,the Municipal Home Rule Powers Act set forth in Chapter 166 of the Florida Statutes, and the Miami Beach City Charter and Code of Ordinances (the "City Code"). The City has all governmental, corporate and proprietary powers to enable it to conduct municipal government,perform municipal and governmental functions, and render municipal services, including the authority to adopt, implement and enforce (together with any other required Governmental Approvals) comprehensive plans, zoning ordinances, redevelopment plans, and other police power and legislative measures necessary to assure the health,safety and general welfare of the City and its inhabitants. C. This Agreement is intended to and shall constitute a development agreement between the parties pursuant to Sections 163.3220-163.3243, Florida Statutes, the "Florida Local Government Development Agreement Act"(the"Act")and Section 118-4 of the City's Code. D. The City has fully considered this Agreement at two duly noticed public hearings in compliance with Section 163.3225 of the Act;having determined that the Project(as hereinafter defined in Section 1.3) and this Agreement are in compliance with the City's Comprehensive Plan and Land Development Regulations(as each are hereinafter defined in Section 1.3)as of F ),F 1,2020; E. The City has further determined that it is in the City's best interest to address the issues covered by this Agreement in a comprehensive manner, in compliance with all applicable laws, ordinances, plans, rules and regulations of the City, and therefore the City has agreed to enter into this Agreement with Developer,subject to the terms and conditions herein.2 1 City to add revised and/or additional recitals based on City resolutions. 2 Subject to update if amendments to Comprehensive Plan and LDRs not adopted prior to execution. 1 Page 808 of 2461 F. On [ ] [_], 2020, the Mayor and City Commission, by Resolution No. 2020- ],approved the execution of this Agreement. NOW THEREFORE,for and in consideration of the foregoing, and of the mutual covenants and agreements contained herein,the parties agree as follows: ARTICLE I VOTER REFERENDUM,EFFECTIVE DATE AND DEFINITIONS Section 1.1 Voter Referendum Requirement. The parties acknowledge and agree that, pursuant to Section 1.03(b)(1) of the City Code, the Marina Lease and the Purchase and Sale Agreement for the Residential Parcel, each as hereinafter defined, forms of which are attached to this Agreement, and the rights and obligations therein,are subject to and contingent upon the approval of the Marina Lease and the sale of the Residential Parcel by vote of a majority of the voters voting thereon in a City-wide referendum on November 3, 2020 (the "2020 Referendum") or such later date in 2021 as further described in this Section (each, a "2021 Referendum" and together with the 2020 Referendum, each, a "Referendum"). In the event that the 2020 Referendum is not successful, or if the ballot question is removed or election results are invalidated by a court of competent jurisdiction, then Developer may, within 90 days after the date on which it is determined that the 2020 Referendum was not successful, request that the City Commission consider adopting a resolution calling for a special election for approval of the Agreement in a 2021 Referendum. If(a)the City Commission declines to adopt a resolution calling for approval of the Agreement in a 2021 Referendum or(b)within such ninety(90)day period,Developer either fails to so notify the City or notifies the City that it wishes to terminate this Agreement,then,in any such event, this Agreement shall be deemed null and void and the parties shall have no obligations or liabilities of any kind or nature whatsoever hereunder. In the event that,following Developer's request, the City Commission adopts a resolution calling for a 2021 Referendum and the 2021 Referendum is not successful,or if the ballot question is removed or election results are invalidated by a court of competent jurisdiction, in each case following the last date on which a 2021 Referendum occurred,this Agreement shall be deemed null and void and the parties shall have no obligations or liabilities of any kind or nature whatsoever hereunder. Section 1.2 Effective Date. If a Referendum is successful and all requirements of the City Code and applicable law are satisfied,this Agreement shall be effective upon the City Commission's adoption of a resolution accepting the certification of the official results of the applicable election with respect to the applicable Referendum("Effective Date"). Section 1.3 Defined Terms. As used herein the term: "Acceptable Owner" has the meaning ascribed to it in Exhibit"A". "Act" has the meaning ascribed to it in the recitals hereto. "Affiliate"means,regarding any Person, any other Person directly or indirectly Controlling, Controlled by or under common Control with such Person. When used in reference to Developer, for so long as Developer(or any of its Affiliates) holds an interest, directly or indirectly, in Developer, "Affiliate" shall include any Person Controlling,Controlled by,or under common Control with the Developer. "Agreement" or "Development Agreement" means, collectively, this Development Agreement and all exhibits and attachments hereto,as any of the same may hereafter be supplemented,amended,restated, 2 Page 809 of 2461 severed,consolidated,extended,revised and otherwise modified,from time to time,either in accordance with the terms of this Agreement or by mutual agreement of the parties. "Alternate Easement Agreement" means an easement agreement in form and substance reasonably acceptable to Developer,Marina Lessee and the City that provides for the granting of the ARF Easements and the other limited, non-exclusive easements described in Section 4.1(d) by Residential Developer for the benefit of the Commercial Retail Premises. "Approval, Approve or Approved" means the written approval or consent of a Party, which unless otherwise specified herein by reference to "sole discretion" or words of similar effect, shall be commercially reasonable and made in good faith and with due diligence. "Approved DRB Plans"shall have the meaning ascribed to it in Section 2.2(a). "Approved DRB Submittal Plans"shall have the meaning ascribed to it in Section 2.2(a). "Approved Plans" shall have the meaning ascribed to it in Section 2.2(b). "Arbitrator"shall have the meaning ascribed to it in Section 7.10(a). "Architect" means Cube 3 Studio, LLC, a Florida limited liability company, or such other duly qualified, insured and reputable architect selected by Developer as the architect for the Project and licensed to operate as an architect in the State of Florida. "ARF Easements"has the meaning ascribed to it in Section 4.1(d). "Bankruptcy Code"means Title 11 of the United States Code entitled"Bankruptcy," as amended. "Baseline Commercial Building" means the basic building of the Commercial Retail Improvements, the shell and core of which is described on Exhibit"Q"attached hereto,together with enhancements thereto, having a total aggregate cost for design, construction, permitting and fees of not less than$17,500,000, of which not less than $5,000,000 shall be expended for upgrades to the Commercial Retail Improvements,such as higher ceilings,better quality finishes and more architectural features. "Baseline Environmental Levels" means the highest level of Hazardous Substances found to exist within the Development Site,excluding areas beneath the Existing Improvements,as are reflected on "Phase II" testings to be conducted by or on behalf of Developer prior to Commencement of Construction. "Baseline Park" means basic park improvements consisting of a concrete walkway, landscaping required by applicable Governmental Requirements, irrigation system and art required by AIPP. "Bavwalk" means that certain baywalk extending from MacArthur Causeway to the north and the southern property1ine of the Murano Grande At Portofino Condominium to the south, as more particularly described in the Baywalk Easements. "Bavwalk Easements"means,collectively,that certain Amended and Restated Grant of Baywalk Easement recorded on July 27, 1999 in Official Records Book 18713, Page 133 and that certain Grant of Easements for SSDI South Drop-Off Parking and Access Easement Agreement recorded on May 27, 1999 in Official Records Book 18626, Page 4514,each of the public records of Miami-Dade County, Florida. 3 Page 810 of 2461 "Budgeted Improvement Costs" means the estimated Improvement Costs as of the estimated date of Commencement of Construction through the date of Completion of Construction. "Building Permit" means the building permit for construction of the Project, which may be a phased building permit to the extent permitted by and in accordance with applicable Governmental Requirements. "Building Permit Liquidated Damages" has the meaning ascribed to it in Section 7.2(a)(iv). "Building Permit Outside Date" means the date which is six(6) years after the Effective Date, subject to reasonable extension'(a)for Unavoidable Delays, (b)for City Delays, and (c)during the pendency of any Lawsuit or Marina Lawsuit,if applicable, and each in accordance with this Agreement. "Business Day" means a day other than a Saturday,a Sunday or a day on which the offices of the City, or national banks in Miami-Dade County,Florida are closed for business. "Certificate of Occupancy" means,collectively,the Certificate of Occupancy—Commercial,Certificate of Occupancy— Park, and Certificate of Occupancy— Residential, or either or any thereof as the context contemplates. A Certificate of Occupancy may be issued separately for each of the Commercial Retail Premises, the Park Project and the Residential Parcel. Nothing herein shall be deemed to modify the authority of the agency(ies) having jurisdiction to determine whether to issue any Certificate of Occupancy. In no event shall the Certificate of Occupancy—Residential be issued prior to the Certificate of Occupancy—Commercial or the Certificate of Occupancy—Park, nor shall any Certificate of Occupancy (or if separate, the Certificate of Occupancy — Commercial, Certificate of Occupancy — Park or the Certificate of Occupancy—Residential) be issued until Developer has paid the City in full in cash for any and all Liquidated Damages due hereunder. "Certificate of Occupancy—Commercial"means a certificate of occupancy or certificate of corn pletion,as applicable,for the portion of the building constituting the Commercial Retail Improvements,which shalt be limited to the Baseline Commercial Building, to the extent permitted by the agency(ies) having jurisdiction, and shall include any such certificate designated as"Temporary"in nature. "Certificate of Occupancy — Park" means a certificate of occupancy or certificate of completion, as applicable, for the Park Project and shall include any such certificate designated as "Partial" or "Temporary"in nature,which allows for occupancy of the Park Project by the public. "Certificate of Occupancy—Residential" means a certificate of occupancy or certificate of completion, as applicable, for the portion of the building constituting the Residential Improvements, and shall include any such certificate designated as"Temporary"in nature. "City" shall mean the City of Miami Beach, a Florida municipal corporation, having its principal offices at 1700 Convention Center Drive, Miami Beach, Florida 33139. In all respects hereunder, City's obligations and performance is pursuant to City's position as the owner of the Development Site acting in its proprietary capacity. In the event City exercises its regulatory authority as a governmental body, the exercise of such regulatory authority and the enforcement of any rules, regulations,laws and ordinances (including through the exercise of the City's building, fire, code enforcement, police department or otherwise) shall be deemed to have occurred pursuant to City's regulatory authority as a governmental body and shall not be attributable in any manner to City as a party to this Agreement or in any way be deemed in conflict with,or a default under,the City's obligations hereunder. 4 Page 811 of 2461 "City Code" has the meaning ascribed to it in the recitals hereto. "City Commission"shall mean the governing and legislative body of the City. "City Delays"shall mean the number of days in which the City performs any obligation under Section 2.17 hereof in excess of the number of days set forth for such performance therein. "City Manager" shall mean the Chief Administrative Officer of the City. The City Manager shall be construed to include any duly authorized representatives designated in writing with respect to any specific matter(s)concerning this Agreement(exclusive of those authorizations reserved to the City Commission or regulatory or administrative bodies having jurisdiction over any matter(s) related to this Agreement). "City Mortgage" shall mean that certain mortgage which is a first lien on Residential Developer's fee interest in the Residential Parcel and all improvements thereon delivered by Residential Developer in favor of the City to secure the Residential Developer's obligations under the City Note, which City Mortgage is delivered to the City at the Closing in accordance with this Agreement and the Purchase and Sale Agreement. "City Note"means that certain promissory note in the amount of$50,000,000.00 delivered by Residential Developer to the City at the Closing,which City Note shall be due and payable on the City Note Maturity Date. "City Note Maturity Date" means the date on which all of the Construction Commencement Conditions have been satisfied. "City Parties"means the officers,employees and agents of the City,each acting in their official capacities, and instrumentalities of the City. "City's Representative" has the meaning ascribed to it in Section 2.13(b). "City ROW Area"means the parcel of property described on Exhibit"D"attached hereto. "City Title Policy" means that certain loan title policy, in form and substance reasonably acceptable to City, issued by First American Title Insurance Company (or other reputable national title insurance company reasonably acceptable to the City) in favor of the City in the amount of the City Note insuring the first lien priority of the City Mortgage,which City Title Policy shall be issued to the City at Residential Developer's sole cost and expense. "Claims" means all claims,demands, actions, suits, causes of actions, proceedings, charges, complaints, orders,liabilities,actual damages,losses,fees,reasonable,out-of-pocket costs and expenses of every kind and nature(including any reasonable attorneys'fees and costs of litigation). "Closin ' means the closing of the purchase and sale of the Residential`Parcel in accordance with the Purchase and Sale Agreement. "Commence Construction"or"Commencement of Construction"means the commencement of any work, other than any Early Work,for construction of the Project in accordance with the Approved Plans. 5 Page 812 of 2461 "Commercial Release Date" means the date on which all of the following conditions have been satisfied: (i) Completion of Construction of the Commercial Retail Project, including the Park Project; and (ii) payment in full in cash to the City of any and all Completion Liquidated Damages due hereunder. For the avoidance of doubt, the Commercial Release Date shall not occur or be deemed to occur prior to the satisfaction of all conditions to the Vesting Date as set forth in the definition thereof. "Commercial Retail Developer"means Marina Park Commercial,LLC,a Delaware limited liability company, as the developer of the Commercial Retail Project, including the Park Project. Commercial Retail Developer is the sublessee of the Commercial Retail Premises as approved by the City pursuant to the Marina Lease. "Commercial Retail Improvements" means any and all permanent buildings, structures, machinery, equipment and fixtures, which are to be erected or located on the Commercial Retail Premises, and as further described in Section 4.1(a) hereof. "Commercial Retail Premises"means the parcel of real property described on Exhibit"L"attached hereto, subject to adjustment in accordance with Section 2.20. "Commercial Retail Proiect" means the development, design, construction and purchase of the Commercial Retail Improvements,Baseline Park and their subsequent use and the completion of the Work relating to the Commercial Retail Improvements and Baseline Park substantially in accordance with the Approved Plans, including (1) all associated infrastructure (including on-site parking and all supporting facilities and amenities) and(2)the installation of other improvements and appurtenances of every kind and description (including any and all landscaping, planting and other improvements of any type) now located or hereafter erected, constructed or placed upon the Commercial Retail Premises and includes the Park Project. "Complete Construction" or"Completion of Construction" means the date Developer has completed the Project substantially in accordance with the requirements of the Approved Plans for the Project and all conditions of permits and regulatory agencies to obtain a Certificate of Occupancy for the Project have been satisfied, all applicable Governmental Authorities have issued a Certificate of Occupancy for the Project. "Completion Liquidated Damages" has the meaning ascribed to it in Section 7.2(a)(v). "Comprehensive Plan" means the comprehensive plan which the City Commission has adopted and implemented for the redevelopment and continuing development of the City pursuant to Chapter 163 Part H,of the Florida Statutes. "Concurrency Requirements" shall have the meaning ascribed to it in Section 3.3. "Construction Agreement(s)" means, collectively, the General Construction Contract and any general contractor's agreement entered into by the Developer with respect to the construction of the Project,as the same may be amended or otherwise modified from time to time. "Construction Completion Date" means the date that is fifty-four (54) months from demolition of the Existing Improvements (which demolition shall not occur prior to satisfaction of all Construction Commencement Conditions), less the number of days in the Construction Commencement Slide Period, 6 Page 813 of 2461 subject to reasonable extension for(1) Unavoidable Delays and/or(ii)City Delays, if applicable, and each in accordance with this Agreement. "Construction Commencement Conditions"has the meaning ascribed to it in Section 2.11. "Construction Commencement Date" means the date which is eight(8) years after the Effective Date, subject to reasonable extension (a) for Unavoidable Delays, (b) for City Delays, and/or (c) during the pendency of any Lawsuit or Marina Lawsuit, if applicable, and each in accordance with this Agreement. "Construction Commencement Slide Period" means the period of time commencing on the date which is ninety(90) months after the Effective Date, subject to reasonable extension (a)for Unavoidable Delays, (b)for City Delays, and/or (c) during the pendency of any Lawsuit or Marina Lawsuit, if applicable, and each in accordance with this Agreement, and ending on the date of satisfaction of all Construction Commencement Conditions. By way of example, if Developer satisfies all Construction Commencement Conditions ninety-six (96) months after the Effective Date, the Construction Slide Period shall be six months, and accordingly,the Construction Completion Date of fifty-four(54) months after demolition of the Existing Improvements shall be reduced by six (6) months, to forty-eight (48) months after such demolition. "Construction Lender"means the Institutional Lender selected by Developer to provide the Construction Loan in accordance with Article VI. "Construction Loan" means the loan to be provided by the Construction Lender to Developer for development and construction of the Project in accordance with Article VI. "Construction Loan Commitment" means a financing commitment, term sheet or similar agreement by the Construction Lender that has been executed and delivered by and between Developer and the Construction Lender that confirms availability (subject to satisfaction of the terms and conditions contained therein)of the Construction Loan to fund the construction of the Project in accordance with the requirements of this Agreement. "Control,""Controlling"or"Controlled"means the possession,directly or indirectly,of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, by Governmental Requirements or otherwise, or the power to elect in excess of fifty percent (50%) of the directors, managers, general partners or other Persons exercising similar authority with respect to such Person (it being acknowledged that a Person shall not be deemed to lack Control of another Person even though certain decisions may be subject to "major decision" consent or approval rights of limited partners,shareholders or members,as applicable). For avoidance of doubt,if a Person(for purposes of this definition,"Person A")cannot elect in excess of fifty percent(50%) of the directors, managers,general partners or other Persons exercising similar authority with respect to a Person (for purposes of this definition, "Person B")without the consent or approval of another Person or Persons,then Person A shall not be deemed to Control Person B. "Court of Appeal"shall mean,with respect to any Marina Lawsuit filed in Florida state court,the applicable District Court of Appeal of the State of Florida,and with respect to any Marina Lawsuit filed in or removed to federal court,the applicable the United States Court of Appeals. "Covenant in Lieu of Unity of Title" shall mean the covenant in lieu of unity of title covering the Development Site,substantially in the form attached as Exhibit"H." 7 Page 814 of 2461 "Default Rate" means an interest rate equal to five percent (5%) per annum above the highest annual prime rate (or base rate) published from time-to-time in The Wall Street Journal under the heading "Money Rates"or any successor heading as being the rate in effect for corporate loans at large U.S.money center commercial banks(whether or not such rate has actually been charged by any such bank)or if such rate is no longer published,then the highest annual rate charged from time-to-time at a large U.S.money center commercial bank, selected by the City, on short term, unsecured loans to its most creditworthy large corporate borrowers. "Deposits" all deposits paid or payable to Residential Developer(or escrow agent)pursuant to a contract or contracts for the sale by Residential Developer of one or more condominium units within the Residential Improvements and permitted to be used by Residential Developer for purposes of construction of the Residential Project pursuant to Chapter 718, Florida Statutes, provided that all applicable rescission periods set forth in such contract(s) have fully and unconditionally expired. "Design Architect" means B.I.G. Architecture DPC D.P.C., or such other duly qualified, insured and reputable architect selected by Developer as the design architect for the Project and licensed to operate as an architect in the State of Florida. "Developer" means, jointly, severally and collectively, Residential Developer and Commercial Retail Developer and the successors, assigns or transferees thereof expressly Approved or permitted by the terms and provisions of this Agreement. A certified copy of the articles of organization of the Residential Developer are attached hereto as Exhibit"E-1"and a certified copy of the articles of organization of the Commercial Retail Developer are attached hereto as Exhibit"E-2". "Development Arbitrator"shall have the meaning ascribed to it in Section 7.9(b). "Development Dispute"means any dispute between Developer and City(acting in its proprietary capacity) arising prior to the Completion of Construction with respect to(i)whether the plans and specifications to be submitted to the Design Review Board shall conform in all material respects to the Project Concept Plan and include all Mandatory Project Elements(in each case,except to the extent the City Commission otherwise approves); provided, however, for avoidance of doubt, to the extent the plans and specifications reflect revisions to the Project Concept Plan, but the plans and specifications include all Mandatory Project Elements and do not include any Prohibited Project Changes,then such revisions shall not be deemed to render the plans and specifications noncompliant with the Project Concept Plan; (ii) whether the Plans and Specifications are consistent with the Approved DRB Plans, include all Mandatory Project Elements and do not include any Prohibited Project Changes; (iii) whether a modification to the Project is a substantial deviation from the Approved Plans or a Prohibited Project Change requiring City's Approval pursuant to Section 2.2 or Section 2.3; (iv) any contention that City has unreasonably failed to Approve any plans and specifications, including Approved DRB Submittal Plans and the Plans and Specifications or any modifications to the Approved Plans in accordance with this Agreement; (v) any contention that City has unreasonably failed to Approve a General Contractor for the Project in accordance with Section 2.9(b); (vi) any disagreement as to permitted delays in the Building Permit Outside Date,the Construction Commencement Date or the Construction Completion Date;or(vii)after Commencement of Construction,any disagreement as to whether the Developer is diligently prosecuting completion of the Work in good-faith. "Development Order" means any order granting, denying,or granting with conditions an application for a Development Permit. 8 Page 815 of 2461 "Development Permit" shall have the meaning set forth in Section 163.3221(5), Florida Statutes. "Development Site" means, collectively,the Land and the Residential Parcel and the City ROW Area. "Early Work" means, collectively, (i) design and permitting of the Project, including all design, architectural, landscaping, civil engineering, engineering and other professional services; (ii) physical inspections,site visits and surveying;(iii)tests,studies,samplings,and analyses(including soil borings and invasive environmental testing); (iv) preliminary site work, including utility work; (v) environmental remediation;and(v)ancillary demolition(but for avoidance of doubt, not including any demolition of the Existing Improvements). "Effective Date" has the meaning ascribed to in Section 1.2. "Environmental Delays" means each of the following:(i) if,despite diligent good faith efforts, Developer is unable to obtain final approval from the applicable Governmental Authorities, including Miami-Dade County Department of Environmental Resources Management, of protocols for remediation of any Hazardous Substances in, or, under or within the vicinity of,the Development Site, including a remedial action plan, within twelve (12) months of submittal by Developer to the applicable Governmental Authorities of an initial plan for remediation;(ii)if Hazardous Substances are discovered under the Existing Improvements at levels that are at least fifty percent (50%) greater than the Baseline Environmental Levels; and (iii) the discovery of any Hazardous Substance not discovered in the Baseline Environmental Levels or an increase in levels from those discovered in the Baseline Environmental Levels that requires, for the first time, remediation or an increased level of remediation than that needed to address the Baseline Environmental Levels. "Equity Commitment" means the commitment of Developer to contribute an amount in cash to pay Improvement Costs as may be necessary,at the time of determination,when combined with the proceeds available under the Construction Loan and Mezzanine Loan, if any,to demonstrate that the Project is In Balance as of the date of Commencement of Construction. "Event of Default" has the meaning ascribed to it in Section 7.1. "Existing Improvements" means the existing buildings, structures, machinery, equipment and fixtures which are existing on the Land as of the date hereof. "Existing Marina Lease"means that certain Marina Lease by and between the City,as lessor,and Existing Marina Lessee,as lessee,dated as of June 24, 1983,as subsequently amended through April 15, 1998. "Existing Marina Lessee" means Miami Beach Marina Associates,Ltd.,a Florida limited partnership. "First Mortgage"means collectively,each Mortgage securing a Construction Loan,constituting a first lien on Residential Developer's fee interest in the Residential Parcel and/or constituting a first lien on the Commercial Retail Developer's subleasehold interest in the Commercial Retail Premises. "First Mortgagee" means the Institutional Lender(s)that is(are)the holder(s) of a First Mortgage, which shall be evidenced by,and the City shall be able to absolutely rely on, a title report current as of the time of any determination and prepared by a generally recognized title insurance company doing business in Miami-Dade County, Florida or upon a certificate of Developer, signed and verified by a Responsible Officer of Developer. 9 Page 816 of 2461 "Force Majeure Event"means any acts of God; strikes, lockouts or other industrial disturbances; acts of public enemies,whether actual or threatened;orders of any civil or military authority;insurrections;riots; acts of terrorism; epidemics; pandemics; landslides, earthquakes, lightning, fires, hurricanes, storms, floods, washouts and other natural disasters; inability to procure or a general shortage of labor, equipment,facilities,materials or supplies in the open market,or failure or unavailability of transportation generally;or other similar extraordinary causes beyond the commercially reasonable control of the Party claiming such inability. In no event shall "Force Majeure Event" include economic hardship or financial inability to perform specific to the Party. "Foreign Instrumentality" means a foreign (non-U.S.) government or agency thereof or a Person Controlled thereby. "GAAP" means generally accepted accounting principles,as in effect from time to time, as promulgated by the Financial Accounting Standards Board,consistently applied or a system generally recognized in the United States as having replaced GAAP. "General Construction Contract" means the construction contract between Developer and the General Contractor for the construction of the Project in accordance with the Approved Plans for the Project, within the contract time specified therein for completion of the Work,for a guaranteed maximum price that as of the date of Commencement of Construction will not exceed the sum allocated for construction of the Work as reflected in the Budgeted Improvement Costs, and that includes provisions requiring a Performance Bond and Payment Bond and all other terms or conditions required under this Agreement; provided, however, Developer may enter into a phased General Construction Contract with the same General Contractor in order to construct the Project in phases and may enter into a separate General Construction Contract with a separate General Contractor for the Park Project. "General Contractor" means the duly licensed general contractor engaged by Developer for the construction of the Project and completion of the Work; provided that Developer may enter into a separate General Construction Contract with a separate General Contractor for the Park Project. "Governmental Approvals" means all permits, approvals, certificates of occupancy, notifications, certifications, registrations, authorizations and other rights and privileges that are required by any Governmental Authority. Notwithstanding anything to the contrary in this Agreement,Developer retains its rights in accordance,with applicable Governmental Requirements to challenge or appeal any denial of Governmental Approvals. "Governmental Authority" means any federal, state, county, municipal or other governmental department,entity,authority,commission,board,bureau,court,agency,or any instrumentality of any of them,with jurisdiction over the Development Site,the Improvements,or the Work. "Governmental Requirements" means any law, enactment, statute, code, order, ordinance, rule, regulation, judgment, decree, writ, injunction, franchise, permit, certificate, license, or other similar requirement of any Governmental Authority, now existing or hereafter enacted, adopted, promulgated, entered, or issued, affecting the Development Site or the construction and operation of the Improvements. Notwithstanding anything to the contrary in this Agreement, Developer retains its right to challenge Governmental Requirements in accordance with all other applicable Governmental Requirements, including based on a constitutional objection that a Governmental Requirement violates Developer's constitutional rights regarding contracts. 10 Page 817 of 2461 "Green Space" means approximately one and one-half acres of publicly accessible open green space within the Development Site, which shall include the Park Project and landscaping and hardscape improvements, resurfacing, drainage, sidewalks, lighting, irrigation, outdoor seating and other outdoor furniture (if requested by the City), baywalk improvements, upgraded City-approved wayfinding and signage such as directional signage with respect to the Park Project, access signage and similar signs (excluding private signage) and other accessory facilities and incorporating all applicable Public Benefit Improvements (provided, however, in no event. shall Developer be obligated to expend more than $5,000,000 in the aggregate in connection with the Public Benefit Improvements, including hard and soft costs in connection with the development,construction and completion thereof). "Hazardous Substances" has the meaning ascribed to it in Section 8.4(a)(vii). "Hearing"has the meaning set forth in Section 7.9(c). "Hearing Date" has the meaning set forth in Section 7.9(c). "Improvement Costs" means all costs,fees and expenses incurred or to be incurred in connection with the design,permitting, development and construction of the Project; "Improvements" means, collectively, the Residential Improvements and the Commercial Retail Improvements. "In Balance" means, as of the date of Commencement of Construction, that the sum of (a) the then unfunded amount of the Construction Loan available to Developer for payment of Improvement Costs to achieve Completion of Construction of the Project, plus(b)the then unfunded amount of the Mezzanine Loan, if any, available to Developer for the payment of improvement Costs to achieve Completion of Construction of the Project, plus (c) the then remaining balance to be funded under the Equity Commitment, plus(d) any unused Deposits, if any, plus (e) any additional cash amounts deposited with the First Mortgagee or any Mezzanine Lender by Developer in order to fund the difference,if any,between the sum of(a),(b),(c)and(d)above and the then remaining Improvement Costs is adequate to pay all of the then remaining Improvements Costs that are reasonably likely to be incurred through Completion of Construction. "Initial Purchase Price"means,an aggregate of$15,000,000 of the Purchase Price consisting of$5,000,000 paid to the City at the Closing, $5,000,000 paid to the City on or before January 1, 2022 and $5,000,000 paid to the City on or before September 1,2022. "Institutional Lender" means, any of the following entities that as of the date of closing of the financing (i)is not a Prohibited Person,(ii)with respect to those entities in clause(g),(h),(i),(j)and(k) below is not a Foreign Instrumentality(other than any of the member countries of the European Union,each as existing as of the Effective Date, United Kingdom, Norway, Switzerland, Canada and Mexico and Persons Controlled by any of the foregoing countries) and (iii) (A) with respect to those entities in clauses (a) through (e) and (i) below providing loans to be secured by Mortgages, has a net worth in excess of One Hundred Million Dollars($100,000,000)(as adjusted by inflation over the Term pursuant to Section 11.19 hereof), (B),with respect to those entities in clauses (a) through (e) and (i) and (k) below providing Mezzanine Loans,has a net worth in excess of Fifty Million Dollars($50,000,000)(as adjusted by inflation over the Term pursuant to Section 11.19 hereof)and (C)with respect to those entities in clauses(h) and (j) below has total assets (in name or under management) in excess of $500,000,000 (as adjusted by inflation over the Term pursuant to Section 11.19 hereof)for(h)and (j): 11 Page 818 of 2461 (a) any federal or state chartered commercial bank or national bank or any of its subsidiaries; (b) any federal or state chartered savings and loan association, savings bank or trust company; (c) any pension,retirement or welfare trust or fund,whose loans on real estate are regulated by state or federal laws; (d) any public limited partnerships, public real estate investment trust or other public entity investing in commercial mortgage loans whose loans on real estate are regulated by state or federal laws; (e) any licensed life insurance company in the business of making commercial mortgage loans or a subsidiary or affiliate of any such institution, in each case,whose loans on real estate are regulated by state or federal laws; (f) any agent, designee, or nominee of an Institutional Lender that is an Affiliate of any Institutional Lender or any other Person that is a subsidiary or an Affiliate of an Institutional Lender; (g) a governmental agency; (h) an investment bank; (i) a securitization trust that is rated by S&P, Fitch or Moody's (or any like-extant national rating agency); (j) a hedge fund,opportunity fund,private debt fund,or like entity; (k) KS Real Estate Group, LLC, a Florida limited liability company, or any Affiliate thereof ("KS"),provided however,that at the closing of financing provided by KS,KS affirms that KS,together with its Affiliates, in the aggregate, satisfies the minimum net worth requirement of $50,000,000 and that neither KS nor any of its principals and/or members are a Prohibited Person or Foreign Instrumentality; (I) any other source of funding, public or private, which is otherwise Approved by the City Manager. In the event of a syndicated loan, if fifty-one percent (51%) or more of the syndicate of lenders are Institutional Lenders, then the syndicated loan shall be deemed to be made by an Institutional Lender. Without limiting the foregoing, for reference purposes, in the case of any syndicated loan obtained by Developer,references herein to"Institutional Lender"shall include the administrative agent or collateral agent for the syndicate of lenders. City Manager's failure to notify Developer of any disapproval of any proposed lender under(I)above within twenty(20)days from its receipt of a notice by Developer shall be deemed to constitute the City Manager's conclusive Approval of any such proposed lender. "Land Development Regulations"shall have the meaning set forth in Section 163.3221(8),Florida Statutes and shall also include the definition of"land development regulations" in Section 114-1 of the City Code. "Land" has the meaning ascribed to it in the recitals hereto. 12 Page 819 of 2461 "Lawsuit" means any lawsuit, action, proceeding,appeal or petition for writ of certiorari challenging the validity, legal propriety, issuance or execution, as applicable, of the sale of the Residential Parcel, the Purchase and Sale Agreement, the Project Approvals,the Project Amendments, the vacation of the City ROW Area or this Agreement or any such challenge relating to any approval required under the City Code and/or the City Charter. "LEED Status" means a certification by the U.S. Green Building Counsel's ("USGBC") Leadership in Energy and Environmental Design("LEED")that the Project has satisfied all of the requirements associated with the then current USGBC Gold LEED certification. "Liquid Assets" means(a)cash on hand or on deposit in any federal or state chartered commercial bank or national bank or any of its subsidiaries, (b) readily marketable securities, (c) readily marketable commercial paper rated A-1 by Standard & Poor's Corporation (or a similar rating by any similar organization that rates commercial paper), (d) certificates of deposit issued by commercial banks operating in the United States with maturities of one year or less, (e) money market mutual funds,(f)the uncommitted amount of any available line(s)of credit. "Liquidated Damages" means, collectively, all Building Permit Liquidated Damages and all Completion Liquidated Damages. "Mandatory Project Elements" means the components or other elements of the Project to be developed by Developer as further described on Exhibit"F". "Marina Lawsuit" means any lawsuit, action or proceeding challenging the termination or expiration of the Existing Marina Lease,the termination or expiration of any sublease thereunder and/or the validity, execution or effectiveness of the Marina Lease,the Master Sublease,the Recognition Agreement,and to the extent challenged in connection with the foregoing agreements,the Reciprocal Easement Agreement and the Alternate Easement Agreement,or any tort or other Claim related to any of the foregoing. "Marina Lease" means that certain Miami Beach Marina Lease by and between the City, as lessor, and Marina Lessee, as lessee, to be executed as of March 15, 2021, pursuant to which Marina Lessee has agreed to lease the Commercial Retail Premises from the City for a term commencing on January 1,2022 and continuingfor ninety(99)years and otherwise on the terms and conditions specified therein, in the form attached hereto as Exhibit"G". "Marina Lessee" means MB Marina Park, LLC, a Delaware limited liability company,an affiliate of Suntex Marina Investors,LLC. "Master Sublease"means that certain Sublease Agreement to be entered into between Marina Lessee,as sublessor,and Commercial Retail Developer,as sublessee,pursuant to which Marina Lessee shall sublease a portion of the Commercial Retail Premises to the Commercial Retail Developer for the purpose of constructing the Project. "Material Event of Default"shall have the meaning ascribed to it in Section 7.2(i). "Mezzanine Borrower" means the borrower(s) under any Mezzanine Loan. 13 Page 820 of 2461 "Mezzanine Lender" means the Institutional Lender selected by Developer to provide the Mezzanine Loan and which is receiving a pledge of all or any portion of the direct and/or indirect equity interests in Developer. "Mezzanine Loan" means each loan to be made by a Mezzanine Lender to a Mezzanine Borrower to provide financing for the Project in accordance with Article VI,subordinate to the First Mortgage, which may be secured by a lien on all or any portion of the direct and/or indirect ownership interests in Developer. "Mezzanine Loan Commitment" means a mezzanine financing commitment, term sheet or similar agreement by the Mezzanine Lenderthat has been executed and delivered by and between Developer and/or Mezzanine Borrower and the Mezzanine Lender that confirms the availability (subject to satisfaction of the terms and conditions contained therein)of the Mezzanine Loan. "Miami Beach Marina" means,prior to the effectiveness of the Marina Lease,the marina operated by the Existing Marina Lessee pursuant to the Existing Marina Lease, and after the effectiveness of the Marina Lease,the marina operated by Marina Lessee pursuant to the Marina Lease. "Mortgage" means a mortgage, including an assignment of rents, issues and profits from the Project, in favor of a Mortgagee,which constitutes a lien on the Project and secures the Construction Loan. "Mortgagee"means an Institutional Lender that is the owner and holder of a Mortgage. "Neutral" has the meaning ascribed to it in Section 7.11(a) "Notice of Dispute"has the meaning ascribed to it in Section 7.11(a). "Ownership and Control Requirement" has the meaning ascribed to it in Section 5.2. "Park Project"means the ground level public Baseline Park located within the Development Site and south of the Podium and Tower, being not less than one contiguous acre,together with the applicable Public Benefit improvements set forth on Exhibit"H"attached hereto. "Park Project Completion Date" means the date which the earlier of(i) nine(9)months after the date the Certificate of Occupancy-Commercial is issued or(ii)the date a Certificate of Occupancy—Residential is issued, subject to reasonable extension (a)for Unavoidable Delays and (b) for City Delays, if applicable, each in accordance with this Agreement. "Parties"means City and Developer,and"Party"is a reference to either City or Developer,as the context may indicate or require. "Performance Bond and Payment Bond" means a performance bond and a payment bond with regard to the General Construction Contract in the full amount of the guaranteed maximum price thereof, with a good and sufficient surety,in compliance with all applicable Governmental Requirements, in compliance with Florida Statutes Section 713.23 and otherwise in form and content Approved by the City Manager, or such other security as is reasonably acceptable to the City Manager, after consultation with the City Attorney. City Manager hereby Approves the form substantially as attached hereto as Exhibit"1,"which approval is for the City's own benefit in its proprietary capacity as the owner of the Land and shall not be 14 Page 821 of 2461 deemed to mean, and the City, in such proprietary capacity, makes no representation that, such bond complies with Florida Statutes Section 713.23. "Permitted Transfers" has the meaning ascribed to it in Section 5.3. "Person" means any corporation, unincorporated association or business, limited liability company; business trust,real estate investment trust,common law trust,or other trust,general partnership, limited partnership,limited liability limited partnership,limited liability partnership,joint venture,or two or more persons having a joint or common economic interest,nominee,or other entity,or any individual(or estate of such individual);and shall include any Governmental Authority. "Plans and Specifications" means the plans and specifications for the design, development and construction of the Project at the final design completion stage,which shall include fully detailed drawings showing the location, character, dimensions and details of the Work to be done, and specifications relating to the Project,comprising all of the written directions,provisions and requirements for the Project and describing the Work required to be performed, including customary specifications as the context requires for the applicable permit or approval being sought,prepared by the Architect,in each case,which shall be consistent with the Approved DRB Plans and include the Mandatory Project Elements in accordance with Article 11. "Podium" means those Commercial Retail Improvements and that portion of the Residential Improvements located up to an elevation of not lower than 24' NGVD. "Prohibited Person" shall mean any of the following Persons: (A) any Person (whose operations are directed or controlled by an individual) who has been convicted of or has pleaded guilty in a criminal proceeding for a felony or who is an on-going target of a grand jury investigation convened pursuant to United States laws concerning organized crime; or (B) any Person organized in or controlled from a country, the effects of the activities with respect to which are regulated or controlled pursuant to the following United States laws and the regulations or executive orders promulgated thereunder to the extent the same are then effective:(x)the Trading with the Enemy Act of 1917,50 U.S.C.App.§1,et seq., as amended.(which countries are, as of the date hereof, North Korea, Cuba and Venezuela); (y) the International Emergency Economic Powers Act of 1976,50 U.S.C.§1701,et seq.,as amended;and(z)the Anti-Terrorism and Arms Export Amendments Act of 1989, codified at Section 6(j) of the Export Administration Act of 1979, 50 U.S.C. App. § 2405(j), as amended (which countries are, as of the date hereof, Iran, Sudan and Syria); or (C) any Person who has engaged in any dealings or transactions (i) in contravention of the applicable money laundering laws or regulations or conventions or (ii) in contravention of Executive Order No. 13224 dated September 24, 2001 issued by the President of the United States(Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit,or Support Terrorism), as may be amended or supplemented from time-to-time or any published terrorist or watchlist that may exist from time to time; or(D)any Person who appears on or conducts any business or engages in any transaction with any person appearing on the list maintained by the U.S. Treasury Department's Office of Foreign Assets Control list located at 31 C.F.R., Chapter V, Appendix A or is a person described in Section 1 of the Anti-Terrorism Order;or(E)any Affiliate of any of the Persons described in paragraphs(A)through(D)above. "Prohibited Project Changes"means any changes to the plans and specifications for the Project, including the Approved DRB Submittal Plans,the Approved DRB Plans and/or Approved Plans that result in any of the following except to the extent previously Approved in a writing executed by the City Manager and 15 Page 822 of 2461 expressly providing that the City Manager is thereby Approving a Prohibited Project Change (which Approval may be granted or withheld by City Manager in his sole and absolute discretion), or which are required because of Governmental Requirements: (i) a failure of the Project to contain any of the Mandatory Project Elements; (ii) any increase in the maximum ground floor footprint of the Podium set forth in Article IV hereof;(iii)any increase in the maximum width of the Tower set forth in Article IV hereof; or(iv)any change in the location of the Park Project from its location south of the Podium. "Proiect" or"Marina Park Prosect" means,collectively,the Residential Project and the Commercial Retail Project,including the Park Project, having an aggregate maximum floor area of 319,802 square feet. "Proiect Amendments" means, collectively, those certain amendments to the Comprehensive Plan and Land Development Regulations to (a) amend the Resilient Land Use and Development Element; Goal RLU1, objective RLU1.1, Policy RLU1.1.17, entitled "Public Facility: Governmental Uses (PF)" to permit public-private marina redevelopment and related uses on public property;and (b)amend the City's Land Development Regulations by creating Section 142-708,entitled,"Additional Regulations for Public-Private Marina Mixed-Use Redevelopments". "Project Approvals" has the meaning ascribed to it in Section 3.2. "Project Approvals Delays" means any revisions required by the Design Review Board and/or Planning Board to the Approved DRB Submittal Plans that would require revisions to the Mandatory Project Elements or the inclusion of any Prohibited Project Changes. "Proiect Concept Plan" means the design of the Project prepared by the Design Architect, which Project Concept Plan has been approved by the City Commission in the form attached as hereto as Exhibit"1". "Proposed Major Transferee" means any transferee of the entire Project,the entire Commercial Project, the entire Residential Project and/or or of a direct or indirect Controlling ownership interest in Developer. "Prosecution Dispute"has the meaning ascribed to it in Section 7.11(a) "Public Benefit Improvements"mean the improvements to the Park Project in excess of the Baseline Park, including resiliency improvements,enhancements to the Baywalk and Alton Road and art within the Park Project and the Commercial Retail Project in excess of the requirements of AIPP, as described on Exhibit "H" attached hereto, having an aggregate cost for design, construction, permitting and fees of not less than $5,000,000 (provided, however, in no event shall Developer be obligated to expend more than $5,000,000 in the aggregate in connection with the Public Benefit Improvements, including hard and soft costs in connection with the development,construction and completion thereof). "Purchase and Sale Agreement" means that certain Purchase and Saie Agreement by and between the City and Residential Developer dated as of the Effective Date pursuant to which the City agrees to sell and the Residential Developer agrees to purchase the Residential Parcel,the form of which is attached hereto as Exhibit 1". "Purchase Price" means$55,000,000 to be paid by Residential Developer to the City for the purchase of the Residential Parcel pursuant to the Purchase and Sale Agreement and the City Note. "Reciprocal Easement Agreement" means that certain reciprocal easement and operating agreement to be executed as of March 15, 2021 by and among the City, Marina Lessee, Commercial Retail Developer 16 Page 823 of 2461 and the Residential Developer substantially in the form attached to the Purchase and Sale Agreement and to be recorded in the Public Records of Miami-Dade County, Florida promptly after Closing. "Recognition Agreement"means that certain recognition agreement to be entered into between the City and Master Sublease substantially in the form attached to the Purchase and Sale Agreement. "Residential Developer"means Marina Park Residential,LLC,a Delaware limited liability company,as the developer of the Residential Project. "Residential Improvements" means any and all permanent buildings, structures, machinery, equipment and fixtures, which are to be erected or located on the Residential Parcel, and as further described in Section 4.1(b) hereof. "Residential Parcel" has the meaning ascribed to it in the recitals hereto, subject to adjustment in accordance with Section 2.20. "Residential Proiect" means the development, design, construction and purchase of the Residential Improvements and the completion of the Work relating to the Residential Improvements substantially in accordance with the Approved Plans,including(1)all associated infrastructure(including on-site parking, if any, and all supporting facilities and amenities) and (2) the installation of other improvements and appurtenances of every kind and description now located or hereafter erected, constructed or placed upon the Residential Parcel. "Responsible Officer" means any executive officer or manager of Developer responsible for the administration of the obligations of Developer in respect of this Agreement. "Section.""Subsection,""Paragraph,""Subparagraph,""Clause,"or"Subclause"followed by a number or letter means the section,subsection, paragraph,subparagraph,clause or subclause of this Agreement so designated. "Stay" has the meaning ascribed to it in Section 7.2(h). "Target Dates"means the following dates that have been targeted by Developer to achieve the following activities or events: (a) The"Target Approval Date" means the date targeted for obtaining the Project Approvals, which is two years after the Effective Date,as such Target Approval Date shall be reasonably extended for (i) an Unavoidable Delay; (ii)City Delays;and/or(iii) during the pendency of any Lawsuit and/or Marina Lawsuit,if applicable,each,in accordance with this Agreement. (b) "Target Commencement Date" means the date targeted for Commencement of Construction, which is four (4) years after the Effective Date,as such Target Commencement Date shall be reasonably extended for(i) an Unavoidable Delay; (ii) City Delays; and/or (iii) during the pendency of any Lawsuit and/or Marina Lawsuit,if applicable, each,in accordance with this Agreement. "Term"has the meaning ascribed to it in Section 3.11. "Tower" means those Commercial Retail Improvements and the tower structure of the Residential Improvements to be constructed above the Podium. 17 Page 824 of 2461 "Transfer" means any sale, assignment or conveyance (including any sublease of the entire Commercial Retail Premises, provided that a Master Sublease in form Approved by the City Manager (or his/her designee)to Commercial Retail Developer shall not be deemed a `Transfer") or any other transaction or series of transactions in the nature of a sale, assignment or conveyance (including any sublease of the entire Commercial Retail Premises,other than as set forth in this definition)of: (a) the Project or any part thereof; (b) Any legal or beneficial interest in the Project,or any part thereof (c) any direct or indirect legal or beneficial interest in Developer (including the syndication of tax benefits); or' any series of such Transfers that have the cumulative effect of a sale,transfer or conveyance (including any sublease of the entire Commercial Retail Premises)of any of the foregoing(a), (b)or(c). Notwithstanding the foregoing, pledges of profits and rights to receive distributions and unreturned capital shall not be deemed Transfers provided that financings in conjunction therewith are not secured by a Mortgage or pledge of any direct or indirect interest in Developer, and no lender under such financings shall be deemed a First Mortgagee or a Mezzanine Lender(and therefore would not have any rights or remedies under this Agreement,including,without limitation, Article VI hereof). "Unavoidable Delay" means a delay that (a) if occurring after Commencement of Construction, directly impacts the progress of the Work, (b) is beyond the reasonable control of such Party incurring the delay, and(c)is not due to a negligent or intentional act,error or omission of such Party. Subject to the foregoing criteria, "Unavoidable Delay" includes each of the following: (i) any Force Majeure Event; (ii) Project Approvals Delays; and (iii) Environmental Delays, in each case, which prevents or actually delays performance. "Unavoidable Delay" shall not include technological impossibility, failure of equipment supplied by Developer or Contractor, receipt of and incorporation of defective materials into the Work, shortage of funds, failure of suppliers to deliver equipment and materials except where such failure is itself the result of an Unavoidable Delay, or failure of Developer or Contractor to secure the required permits for prosecution of the Work. If two or more separate events of Unavoidable Delay are concurrent with each other, Developer shall only be entitled to an extension of time for each day of such concurrent critical path delay, and Developer shall not be entitled to double recovery thereon. For illustration purposes only, if two events of Unavoidable Delay are concurrent for two days, Developer shall only receive an extension of time, if at all, of a total of two days, and not four days. In no event shall (i) any Party's financial condition constitute an"Unavoidable Delay"with respect to such Party, (ii) nor shall any delay arising from a Party's default under this Agreement,the General Construction Contract or any other construction agreements, constitute an "Unavoidable Delay" with respect to such Party's obligations hereunder. "Vesting Date" means the date on which all of the following conditions have been satisfied: (i)all Project Approvals have been issued and are final (after all appeal periods have expired without an appeal being filed, or if filed, resolved favorably for Developer); (ii) all Construction Commencement Conditions have been satisfied; (iii) the City has received full and final payment in cash of the Purchase Price; (iv) the Building Permit for the Project has been issued; (v) Developer has paid to the City any and all Building Permit Liquidated Damages due hereunder;and(vi)to the extent requested by Marina Lessee or the City, Commercial Retail Developer and Residential Developer each shall have executed and delivered to Marina Lessee and the City Commercial Retail Developer's and Residential Developer's counterparts of the 18 Page 825 of 2461 Alternate Easement Agreement. If applicable, Commercial Retail Developer and Residential Developer shall cause the Reciprocal Easement Agreement to be recorded in the Public Records of Miami-Dade County, Florida, upon receipt of originally executed counterparts from each of the other parties thereto, but, for avoidance of doubt, neither the execution of the Alternate Easement Agreement by the other parties thereto, nor recordation of the Alternate Easement Agreement shall be conditions to the Vesting Date. "Work" means the design, permitting, development and construction of the Project in accordance with the Approved Plans, including all design, architectural, engineering and other professional services, demolition and construction services, supervision, administration and coordination services and the provision of all drawings,specifications, labor, materials, equipment, supplies,tools, machinery, utilities, fabrication,transportation,storage,insurance, bonds, permits and conditions thereof, zoning approvals, changes required to comply with building codes and Governmental Approvals,licenses,tests,inspections, surveys,studies,and other items,work and services that are necessary or appropriate for the demolition of existing structures and other preparatory or remediation work on the Residential Parcel and Commercial Retail Premises, as applicable; utility relocations, installations, hook-ups or other infrastructure as may be required in connection with the Project and to obtain Certificate(s)of Occupancy; total design, construction, installation, and functioning of the Residential Improvements and the Commercial Retail Improvements to the extent necessary to obtain Certificates of Occupancy, and together with all additional,collateral and incidental items,work and services required for Completion of Construction. Section 1.4 Exhibits. If any exhibit to this Agreement conflicts with the body of this Agreement,the body of this Agreement shall govern. Section 1.5 Interpretation. All pronouns and any variations thereof shall be deemed to refer to the masculine, feminine,.neuter, singular or plural, as appropriate. The words "herein," "hereof," "hereunder," "hereinafter," and words of similar import refer to this Agreement as a whole and not to any particular Article, Section or Subsection hereof. The terms "include" and "including" and words of similar import shall each be construed as if followed by the phrase"without limitation". This Agreement will be interpreted without interpreting any provision in favor of or against either party by reason of the drafting of such provision. Section 1.6 Recitals. The recitals set forth above are true and correct and are incorporated herein by this reference. ARTICLE II DEVELOPMENT OF THE PROJECT Section 2.1 Development and Conformity of Plans. (a) Developer shall be responsible for preparing all Plans and Specifications for the Project. The Plans and Specifications shall conform in all material respects to the Approved DRB Plans,contain all Mandatory Project Elements and not include any Prohibited Project Changes,in each case, except to the extent Approved by the City Commission and/or City Manager, each in its sole discretion, in accordance with this Article II. (b) Notwithstanding any other provision or term of this Agreement or any Exhibit hereto,the Approved Plans and all work by Developer regarding the Project shall conform to the City Code,the Florida 19 Page 826 of 2461 Building Code and all other Governmental Requirements and,to the extent consistent with the above,the provisions of this Agreement. Section 2.2 Plans and Specifications. (a) Developer shall prepare sufficiently detailed plans and specifications for the Project for submission to the Design Review Board. Such plans and specifications must conform in all material respects to the Project Concept Plan, must include all Mandatory Project Elements and not include any Prohibited Project Changes (in each case, except to the extent the City Commission otherwise approves, in its sole discretion). Prior to submission of such plans and specifications to the Design Review Board, Developer shall submit same to the City Manager solely to confirm that such plans and specifications conform in all material respects to the Project Concept Plan and include all Mandatory Project Elements and not include any Prohibited Project Changes (in each case, except to the extent the City Commission otherwise approves in its sole discretion). The City Manager shall review and either confirm or reject such plans and specifications within fifteen (15) Business Days after receipt of the same. If the City Manager fails to confirm or reject such plans and specifications within such fifteen (15) Business Day period,then such plans and specifications shall be deemed confirmed by the City Manager as conforming in all material respects to the Project Concept Plan and including all Mandatory Project Elements (in each case, except to the extent the City Commission otherwise approves, in its sole discretion). However, if the City Manager timely rejects such plans and specifications, it shall give the specific and detailed reasons for such rejection; in which event, the Developer shall, at its election, either (x) submit the City Manager's rejection to expedited arbitration pursuant to Section 7.9 of this Agreement,or(y)within sixty(60)days after such rejection by the City Manager, submit revised proposed modifications to such plans and specifications so that they conform in all material respects to the Project Concept Plan and include all Mandatory Project Elements and not include any Prohibited Project Changes (in each case,except to the extent the City Commission otherwise approves in its sole discretion)and then re-submit them to the City Manager pursuant to the foregoing process until such plans and specifications have been or are deemed to have been so confirmed by the City Manager(such plans and specifications,once Approved or deemed Approved by the City Manager,are referred to in this Agreement as the"Approved DRB Submittal Plans"). Notwithstanding anything to the contrary contained in this Agreement and for avoidance of doubt,to the extent the plans and specifications reflect revisions to the Project Concept Plan, but the plans and specifications include all Mandatory Project Elements and do not include any Prohibited Project Changes, then such revisions shall not be deemed to render the plans and specifications noncompliant with the Project Concept Plan. Developer shall promptly submit the Approved DRB Submittal Plans to the Design Review Board for approval. The City acknowledges and agrees that the Design Review Board and/or Planning Board and/or any other applicable Governmental Authority may require revisions to the Approved DRB Submittal Plans as a condition to the issuance of the Project Approvals;provided,however, that any revisions to the Mandatory Project Elements or the inclusion of any Prohibited Project Changes shall be subject to Approval by the City Manager in its sole discretion, and Developer shall submit same to the City Manager for such confirmation pursuant to the foregoing process until such Approved DRB Submittal Plans have been so confirmed or are deemed to have been confirmed by the City Manager. The Approved DRB Submittal Plans, as revised to conform to conditions to the issuance of the Project Approvals and, if applicable,as any such revisions to the Mandatory Project Elements and/or Prohibited Project Changes have been Approved by the City Manager, as set forth herein, are referred to in this Agreement as the"Approved DRB Plans." (b) Promptly following issuance of the Project Approvals, and the expiration of all appeal periods to such issuance with no appeals to such issuance having been filed (or,in the event an appeal is 20 Page 827 of 2461 filed, the same has been resolved (by judgement, settlement or otherwise) on terms and conditions acceptable to the Developer in its sole and absolute discretion), Developer shall prepare the Plans and Specifications. The Plans and Specifications must be consistent with the Approved DRB Plans, include all Mandatory Project Elements and not include any Prohibited Project Changes, except to the extent otherwise approved by the City Manager or City Commission,as applicable, in accordance with clause (a) above. Prior to submitting the Plans and Specifications to the applicable Governmental Authorities for the issuance of Building Permit, Developer shall submit the Plans and Specifications to the City Manager. The City Manager shall review the Plans and Specifications solely to confirm that the Plans and Specifications are consistent with the Approved DRB Plans, include all Mandatory Project Elements and do not include any Prohibited Project Changes, except to the extent otherwise approved by the City Manager or City Commission in accordance with clause (a) above. The City Manager shall review and either confirm or reject such Plans and Specifications within fifteen(15)Business Days after receipt of the same. If the City Manager fails to confirm or reject such Plans and Specifications within such fifteen(15) Business Day period,then such Plans and Specifications shall be deemed confirmed by the City Manager as being consistent with the Approved DRB Plans, including all Mandatory Project Elements and not including any Prohibited Project Changes, except to the extent otherwise approved by the City Manager or City Commission in accordance with clause(a)above. However,if the City Manager timely rejects such Plans and Specifications, it shall give the specific and detailed reasons for such rejection; in which event, the Developer shall,at its election,either(x)submit the City Manager's rejection to expedited arbitration pursuant to Section 7.9 of this Agreement, or (y) within sixty (60) days after such rejection by the City Manager, submit revised proposed modifications to such Plans and Specifications so that they are consistent with the Approved DRB Plans, include all Mandatory Project Elements and do not include any Prohibited Project Changes, except to the extent otherwise approved by the City Manager or City Commission and then re-submit them to the City Manager pursuant to the foregoing process until such Plans and Specifications have been or are deemed to have been confirmed by the City Manager. Such Plans and Specifications, once confirmed or deemed confirmed by the City Manager, are referred to in this Agreement as the "Approved Plans." The City, in its governmental capacity, agrees to expedite its review of the Plans and Specifications to the extent the City deems reasonable. Section 2.3 Approved Plans. The City shall have the right to Approve, in its sole discretion, (x) any substantial deviation of the Project from the Approved Plans therefor and (y) any Prohibited Project Changes. Notwithstanding any confirmation or Approval provided pursuant to Section 2.2 or this Section 2.3, Developer shall be solely responsible for obtaining all required final, non-appealable Governmental Approvals as more fully set forth in this Article II and in Article III of this Agreement. Any Approval of the Approved Plans or any component thereof by the City shall be for its own benefit in its proprietary capacity as the owner of the Land and shall not be deemed to mean, and the City, in such proprietary capacity, makes no representation,that such Approved Plans comply with all applicable Governmental Approvals and Governmental Requirements. (a) Developer shall submit to the City Manager, prior to Commencement of Construction, any proposed modification to the Approved Plans for the City Manager's determination of whether such modifications include any substantial deviation of the Project from the Approved Plans therefor or Prohibited Project Changes. Modifications to the Approved Plans shall be indicated by "ballooning," highlighting, blacklining or describing such modifications in writing in reasonable detail in an accompanying memorandum. The City shall not be responsible for, and shall not be deemed to have Approved, any modification to the Approved Plans that is not indicated as required by this Section 2.3; provided, however, if, within sixty (60) days after providing its Approval, the City does not raise any objection as a result of Developer's failure to include indications as required by this Section 2.3,then the 21 Page 828 of 2461 City will be deemed to have waived its right to object to such modifications for failure to include such indications. (b) Within twenty-one (21) days of receipt of any proposed modifications to the Approved Plans, the City Manager shall notify Developer, in writing, that he Approves such modifications, or the basis for any disapproval of any substantial deviation of the Project from the Approved Plans therefor or Prohibited Project Change; provided, however, that the City shall not disapprove any material modification necessitated by Governmental Requirements. City's failure to notify Developer of any disapproval within such twenty-one (21) day period shall be deemed to constitute the City's conclusive Approval of the proposed modifications to the Approved Plans. The Approved Plans,as amended by such Approved modifications,shall thereafter be the Approved Plans referred to herein. (c) If the City disapproves of any modification pursuant to this Section 2.3, then Developer shall, at its election, either(x) submit City's disapproval to expedited arbitration pursuant to Section 7.9 of this Agreement,or(y)within thirty(30)days after receiving the City's disapproval notice,submit revised proposed modifications to the Approved Plans for City's review and Approval as provided in this Section 2.3,provided that the time period for approval or disapproval shall be fifteen(15) days. (d) At anytime during the design development phase of the Project,Developer may(but shall not be required to) submit to the City Manager any proposed modifications to the Approved Plans for City's review and Approval pursuant to this Section 2.3, so as to mitigate or avoid any potential delays to the progress of the Work as a result of disputes regarding the final proposed Approved Plans. Section 2.4 Developer's Project Obligations. Subject to the terms hereof, Developer is obligated to and shall (i) design, permit, and construct, in a good and workmanlike manner, and at its sole cost and expense, the Project in all material respects in accordance with and subject to all of the terms and provisions of this Agreement and to Complete Construction thereof by the Construction Completion Date, (ii)obtain a certificate of the LEED Status in accordance with Section 133-6 of the City Code and provide reasonable evidence of such certification to City within a reasonable period following the Construction Completion Date and (iii)to maintain, and, if applicable, prior to Completion of Construction, repair and reconstruct, as applicable, at its sole cost and expense during the Term, the Project in accordance with and subject to all of the terms and provisions of this Agreement. Section 2.5 Payment of Project Costs. (a) As between Developer and the City,Developer shall bear and be solely responsible for all costs and expenses related to the design, permitting and construction of the Work, the Project and its subsequent use,including the following: (i) Developer's land use approvals, development fees, and permit fees for the design,construction,and subsequent use of the Project; (ii) Developer's design and construction of the Project; • (iii) Developer's financing, construction bonding and insurance, building permits, utility installations and/or hook-ups or other infrastructure,as may be required to make the Development Site suitable for the Project; 22 Page 829 of 2461 (iv) Developer's consultants, accountants, financing charges, legal fees, furnishings, equipment, and other personal property of the Developer;and (v) all other Developer direct or indirect costs associated with the approvals,design, construction,and financing of the Improvements,and their subsequent use. (b) Developer acknowledges that the City shall have no maintenance responsibility for any of the Development Site and Improvements,and utilities and infrastructure to be constructed by Developer except as set forth in Sections 4.1(e)and 4.1(f)of this Agreement. (c) Developer shall be exclusively responsible for all matters relating to underground utility lines and facilities, including locating, relocating and/or removal, as necessary in connection with the Project. Under no circumstances shall City be responsible for paying the cost of,or otherwise reimbursing Developer for, relocation, removal, or payment of charges to utility companies for, any utility lines or facilities lying on,under,or around the Development Site. City shall provide reasonable cooperation and assistance to Developer in the resolution of issues associated with existing underground utilities. Developer shall not remove,disturb,or relocate any existing utilities on the Development Site without the City Manager's prior written Approval, except to the extent required by any applicable Governmental Authorities. Section 2.6 Financing Matters. (a) Developer shall pay for all Improvement Costs from funds required to be provided under the Equity Commitment,the Construction Loan and the Mezzanine Loan,if any,and funds,if any,available from Deposits; provided that if the proceeds of the foregoing sources are not available or are inadequate for any reason, Developer shall be responsible to provide funds from such other sources as Developer may identify to pay all costs and expenses necessary to Complete Construction of the Project and cause the Construction Completion Date to occur in accordance herewith. (b) Developer shall be solely responsible for obtaining the Construction Loan and the Mezzanine Loan, if any, for any and all completion guaranties required in connection with the Construction Loan and the Mezzanine Loan,if any,and for providing all collateral and other security,and otherwise satisfying all conditions thereof and covenants, agreements and obligations of the borrower thereunder. In no event shall City have any responsibility, obligation or liability with respect to the Construction Loan or the Mezzanine Loan,if any,and Developer shall reimburse City for all of City's third party costs and expenses (including attorneys' fees) reasonably incurred in connection with any requirements or requests of the Construction Lender in connection with the Construction Loan or the Mezzanine Lender in connection with the Mezzanine Loan, if any, or any requests of Developer.in connection with the Construction Loan, the Mezzanine Loan or any permitted refinancing of the Construction Loan or Mezzanine Loan in accordance with Article VI. Section 2.7 Intentionally Deleted. Section 2.8 Prosecution of the Work. From and after Commencement of Construction Developer shall prosecute completion of the Work substantially in accordance with the Approved Plans (with only such changes hereto that do not constitute Prohibited Project Changes,except as otherwise permitted or Approved pursuant to this Agreement), with all commercially reasonable diligence and in good-faith, in good and workmanlike manner.The Construction Completion Date shall not be tolled for any Lawsuit. If the Parties disagree with respect to whether Developer is diligently prosecuting completion of the Work 23 Page 830 of 2461 in good faith, or with respect to any permitted delays in the Building Permit Outside Date, Construction Commencement Date or Construction Completion Date, such disagreement shall be resolved in accordance with Section 7.9 hereof. (a) Developer shall endeavor, through the use of diligent, good-faith efforts, to cause the prosecution of the Work in accordance with the Building Permit Outside Date, the Target Dates, the Construction Commencement Date and Construction Completion Date, but failure to meet any Target Date shall not be a default under this Agreement. (b) Developer shall obtain the Building Permit by the Building Permit Outside Date. (c) Developer shall commence construction by the Construction Commencement Date. (d) Developer shall Complete Construction by the Construction Completion Date. Section 2.9 Construction Obligations. (a) Bonds. By no later than Commencement of Construction, (i) Developer shall provide a Performance Bond and Payment Bond,with all premiums paid and in favor of Developer with an obligee rider in favor of the City and the First Mortgagee and(ii)Developer shall also provide City with a demolition bond or other form of financial instrument reasonably acceptable to City to assure the availability of funds for demolition or removal of any uncompleted facility in the event Developer, after receipt of a written demand from City after a termination of this Agreement,fails to demolish and remove any uncompleted Improvements following Developer's failure to substantially complete the Project as required herein. (b) Approval of General Contractor. Developer's selection of the General Contractor shall be subject to the advance Approval of the City Manager, after consultation with the City Attorney,as to the qualifications and responsibility of the proposed General Contractor to perform the contract, based on the contractor's licensure, bonding capacity, financial capacity, history of compliance with laws, and satisfactory past performance on similar projects. Provided that the General Contractor proposed by Developer does not have a significant history of material non-compliance with the law, City agrees to Approve any General Contractor proposed by Developer that satisfies each of the following: (i) Has a State of Florida Building and Business License; (ii) Has completed at least one high-rise residential and retail mixed use project of at least twenty (20) stories in the past ten years;and (iii) Has total bonding capacity in excess of$500,000,000.00. (c) Construction Agreement Required Clauses. All Construction Agreements shall include the provisions set forth on Exhibit"S"(or language substantially similar thereto which is Approved in advance by the City Manager); provided all references to"Contractor" on Exhibit"S"shall refer to any contractor party to a Construction Agreement. Section 2.10 Pre-Construction Period. (a) Purchase and Sale Agreement. As of the Effective Date, the City and Residential Developer shall enter into the Purchase and Sale Agreement and the Closing shall occur on or before 24 Page 831 of 2461 March 15, 2021, with time being of the essence,subject to tolling and extension as expressly set forth in the Purchase and Sale Agreement. At the Closing, Residential Developer shall deliver to the City, in cash, $5,000,0000 of the Initial Purchase Price, the City Note,the City Mortgage and the City Title Policy, and shall record the City Mortgage in the public records of Miami-Dade County, Florida at Developer's sole cost and expense,including payment of all recording fees,documentary stamp taxes and intangible taxes. Upon payment of the $5,000,000 Initial Purchase Price, such payment shall be non-refundable and shall be retained by the City. In the event the Existing Marina Lease is in effect,the City may provide a credit to Existing Marina Lessee to the extent set forth in Section 2.10(b) hereof. In the event the event the Marina Lease is in effect, the City shall have no obligation to return or credit such payment under the Marina Lease. (b) Marina Lease. (i) As of March 15, 2021, the City and Marina Lessee shall enter into the Marina Lease,the term of which is intended to commence on January 1,2022. (ii) If the Marina Lease is successfully challenged in any Marina Lawsuit, Developer, Existing Marina Lessee and/or Marina Lessee has diligently pursued and exhausted all appeals thereof in good faith through the applicable Court of Appeal, and the Marina Lease is terminated, voided or otherwise does not become effective as a result thereof, then this Agreement shall terminate and the parties shall be released from their respective obligations hereunder, and Existing Marina Lessee conclusively shall be deemed to have exercised its option to renew the Existing Marina Lease as of March 31, 2021 and the first renewal term of the Existing Marina Lease conclusively shall be deemed to have commenced as of January 1,2022. Provided that Developer,Existing Marina Lessee and/or Marina Lessee has diligently pursued and exhausted all appeals of any Marina Lawsuit in accordance herewith prior to such termination,voiding or ineffectiveness of the Marina Lease,and Closing has not occurred,then upon such successful challenge, the Purchase and Sale Agreement shall automatically and conclusively be terminated, the deposits thereunder shall be disbursed to Residential Developer, and the City and the Residential Developer shall be released from their respective obligations thereunder and this Agreement shall be terminated and the Parties shall be released from their respective obligations hereunder. Provided that Developer, Existing Marina Lessee and/or Marina Lessee has diligently pursued and exhausted all appeals of any Marina Lawsuit in accordance herewith prior to such termination,voiding or ineffectiveness of the Marina Lease, and Closing has occurred,then upon such successful challenge,the City shall retain that portion of the Initial Purchase Price paid to the City, the Residential Developer will re-convey the Residential Parcel to the City, and upon such re-conveyance, the City Note and City Mortgage shall automatically terminate,extinguish and be of no further force or effect, and the City shall satisfy the City Mortgage of record at Residential Developer's sole cost and expense, and the City shall provide Existing Marina Lessee with a rent credit under the Existing Marina Lease in an amount equal to that portion of the Initial Purchase Price paid to and retained by the City,which rent credit shall commence immediately but shall be amortized in equal monthly amounts over a period of ten (10) years; provided, however, if the amount to be amortized exceeds$10,000,000,then the annual credit to Existing Marina Lessee shall not exceed $1,000,000 per year until fully credited. The City shall enter into an amendment to the Existing Marina Lease with the Existing Marina Lessee promptly following such termination,voiding or ineffectiveness to memorialize such rent credit. In the event Developer, Existing Marina Lessee and/or Marina Lessee has not diligently pursued and exhausted all appeals in accordance herewith prior to such termination, voiding or ineffectiveness of the Marina Lease, and (x) if Closing has not occurred,the City shall be entitled to receive the First Deposit (as defined in the Purchase Agreement), plus, if applicable, the Additional At Risk Deposit (as defined in the Purchase Agreement) as set forth in Section 9.2 of the 25 Page 832 of 2461 Purchase Agreement and no portion thereof shall be credited to any rent or other obligations of Existing Marina Lessee or Marina Lessee or(b) if Closing has occurred,the City shall be entitled to retain not less than $3,000,000 of the Initial Purchase Price and no portion thereof shall be credited to any rent or other obligations of Existing Marina Lessee or Marina Lessee and the balance of the initial Purchase Price,if any, above $3,000,000 shall be disbursed to Residential Developer. Any dispute as to whether Developer, Existing Marina Lessee and/or Marina Lessee has diligently pursued and exhausted all appeals of any Marina Lawsuit in good faith through the applicable Court of Appeal shall be determined in accordance with Section 7.11 hereof. This clause (ii)shall survive any termination of this Agreement. (iii) In the event of any Marina Lawsuit,Developer,Marina Lessee and Existing Marina Lessee shall defend any such Marina Lawsuit at their sole cost and expense using legal counsel reasonably acceptable to the City. Developer, Marina Lessee and Existing Marina Lessee,jointly and severally, shall further indemnify and hold the City and the City Parties harmless from and against all Claims of any and every kind arising out of, relating to or resulting from any Marina Lawsuit. The terms of this paragraph shall be expressly incorporated into the Marina Lease and survive the expiration or any earlier termination of the Existing Marina Lease,the Marina Lease and this Agreement. (iv) If there is no successful challenge to the Marina Lease and the Closing occurs but Residential Developer does not obtain the Project Approvals in accordance herewith and the Vesting Date does not occur,then this Agreement may be terminated by either party in accordance herewith,in which case,(A)the Marina Lease shall remain in effect,(B)the City shall retain that portion of the Initial Purchase Price paid to the City,and if applicable,will credit a portion thereof to Marina Lessee's obligations under the Marina Lease, as further described therein, (C) the Residential Developer will re-convey the Residential Parcel to the City, (D)the City will cancel the City Note and satisfy the City Mortgage of record at Residential Developer's sole cost and expense, and (F) the City and Marina Lessee will amend the Marina Lease to'include all areas of the Residential Parcel up to a height of fifty(50)feet NGVD. (v) If there is no successful challenge to the Marina Lease and Closing occurs but the Vesting Date has not occurred,and the City terminates this Agreement as a result of a Material Event of Default,then(A)the Marina Lease shall remain in effect,(B)the City shall retain that portion of the Initial Purchase Price paid to the City, and if applicable, will credit a portion thereof to Marina Lessee's obligations under the Marina Lease, as further described therein, (C) the Residential Developer will re- convey the Residential Parcel to the City,(D)the City will cancel the City Note and satisfy the City Mortgage of record at Residential Developer's sole cost and expense,and(F)the City and Marina Lessee will amend the Marina Lease to include the portion of the Residential Parcel up to a height of fifty(50)feet NGVD. (vi) If there is no successful challenge to the Marina Lease,the Closing occurs and the Vesting Date occurs,but the City terminates this Agreement as a result of a Material Event of Default,(A) the Marina Lease shall remain in effect, (B)the City shall retain the entire Initial Purchase Price and will credit a portion thereof to Marina Lessee's obligations under the,Marina Lease, as further described therein and (C) Marina Lessee will construct the "Alternate Replacement Facilities" (as defined in the Marina Lease) in accordance with the Marina Lease and pursuant to the ARF Easements granted by Residential Developer pursuant to the Reciprocal Easement Agreement or the Alternate Easement Agreement, as applicable. Residential Developer acknowledges and agrees that the ARF Easements granted by Residential Developer are broad in scope and materially (if not entirely) restrict and impair Residential Developer's ability to construct a project on the Residential Parcel and Residential Developer hereby releases the City and Marina Lessee from any and all Claims of Residential Developer or any successors and/or assigns of Residential Developer in connection with any of the foregoing. The foregoing 26 Page 833 of 2461 acknowledgement and release shall be expressly incorporated into the Reciprocal Easement Agreement and Alternate Easement Agreement,as applicable. (vii) Marina Lessee and Existing Marina Lessee each hereby joins in and consents to this Agreement for purposes of acknowledging and confirming its agreement to the terms of this Section 2.10(b) and to evidence its agreement to enter in the amendments to the Existing Marina Lease and the Marina Lease, as applicable, contemplated by this Section 2.10(b). Existing Marina Lessee and Marina Lessee each is a third beneficiary of this Section 2.10(b). (viii) The provisions of this Section 2.10(b) shall survive the termination of this Agreement. (c) Vacation. Prior to Commencement of Construction, the City shall adopt a resolution certifying that the conditions of the Vacation Resolution set forth in Resolution No. 2020-1 have been satisfied and evidencing the conclusive vacation of the City's easement interest in the City ROW Area. The City and Developer shall execute the Covenant in Lieu of Unity of Title after the Project Approvals are issued, but not later than ten (10) days following the City Commission's adoption of the Resolution formally vacating the City ROW Area to provide for the Land, Residential Parcel and the City ROW Area to be developed as a unified development site,and permit the Developer to utilize the 63,750 square feet of available floor area associated with the City ROW Area for the development of the Project. Section 2.11 Conditions Precedent to Commencement of Construction. Prior to Commencement of Construction,the following conditions precedent shall have been satisfied(collectively,the"Construction Commencement Conditions"): (a) Developer shall have delivered to the City,and received the City Manager's confirmation or Approval(as applicable),or deemed confirmation or Approval(as applicable),of the Approved Plans in accordance with Article II. (b) Developer shall have entered into, and delivered to the City a duly executed copy of,the General Construction Contract (and all then existing change orders thereto) with a General Contractor Approved by the City Manager pursuant to Section 2.9(b)and reflecting a guaranteed maximum price for completion of the Improvements that does not exceed the Budgeted Improvement Costs; (c) Developer shall have delivered to the City a budget reflecting the Budgeted Improvement Costs; (d) Developer shall have delivered to City written evidence reasonably satisfactory to the City of the existence and availability of(A) Liquid Assets to fund the Equity Commitment, (B) the Mezzanine Loan Commitment,if any,(C)the Construction Loan Commitment,and (D)Deposits,all of which together demonstrate that the Project is In Balance; (e) Developer shall have obtained, and shall have delivered to City a copy of, all Governmental Approvals, including the Building Permit and Project Approvals, necessary for the Commencement of Construction and for the demolition of all Existing Improvements; (f) Developer shall have presented evidence reasonably acceptable to the City that all insurance coverages required under this Agreement are in place; 27 Page 834 of 2461 (g) Developer shall have provided to the City reasonable evidence that the closing of the Construction Loan has occurred; (h) the representations and warranties made by the Developer in this Agreement pursuant to Sections 4.2(a) and 5.2 remain true and correct in ail material respects on and as of the date of Commencement of Construction; (i) Developer shall have obtained any and all required Governmental Approvals with respect to maintenance of traffic for the staging of the Work during the construction period; 0) Developer shall have obtained any and ail required Governmental Approvals with respect to a parking and transportation plan for the off-site parking and transportation. (k) Developer shall have delivered to the City reasonably satisfactory evidence of the (a) termination or expiration of all subleases of the Existing Improvements and unconditional releases of the City from any and all Claims of all sublessees arising from or in connection with any such subleases that are terminated prior to their expiration date, or (b) amendment to all unterminated or unexpired subleases evidencing the applicable sublessees'agreement to vacate the Existing improvements prior to Commencement of Construction through Completion of Construction of the Project; provided,however, in the event any sublease of the Existing Improvements has not expired or been so terminated or amended or unconditional releases are not obtained on or before Commencement of Construction,then Developer may nonetheless Commence Construction in accordance with and subject to the terms of this Agreement provided that, in such event, Developer, and by its joinder hereto, Existing Marina Lessee and Marina Lessee, hereby do and shall indemnify,defend and hold the City and the City Parties harmless from and against any and ail Claims arising from or in connection with any such unexpired, unterminated or unamended sublease,and promptly following the early termination of any such sublease,Developer shall deliver to the City reasonably satisfactory evidence of such termination and Developer shall use good faith efforts to obtain an unconditional release of the City from any and all Claims of such sublessee at the time that Developer,Marina Lessee and/or Existing Marina Lessee receives a release of such Person from such Claims(for avoidance of doubt,the failure of Developer to obtain such unconditional release of the City shall not be a default under this Agreement). Marina Lessee and Existing Marina Lessee each hereby joins in and consents to this Agreement for purposes of acknowledging and confirming its agreement to the terms of this Section 2.11(k). (I) No Lawsuit or Marina Lawsuit shall be pending and the Marina Lease shall not have been terminated,voided or otherwise made ineffective after the effectiveness or commencement thereof. (m) Commercial Retail Developer shall have delivered to Marina Lessee Commercial Retail Developer's counterpart of the Master Sublease and Commercial Retail Developer and Residential Developer each shall have delivered to Marina Lessee and the City Commercial Retail Developer's and Residential Developer's counterparts of the Alternate Easement Agreement. (n) Residential Developer and the City shall have closed on the purchase and sale of the Residential Parcel in accordance with the Purchase and Sale Agreement and Residential Developer shall have delivered to the City the unpaid balance of the Purchase Price and the City Note shall have been paid in full in cash. Subject to payment in full in cash of the City Note,the City will deliver a satisfaction of the City Mortgage, which Residential Developer will record in the public records of Miami-Dade County, Florida at its sole cost an&expense. 28 Page 835 of 2461 (o) Developer shall have paid the City in full in cash for any and all Building Permit Liquidated Damages due hereunder. (p) Developer shall have delivered written notice to the City certifying that all Construction Commencement Conditions have been satisfied. Section 2.12 Construction Obligations. Prior to the Completion of Construction, Developer shall, or shall cause its General Contractor to: (a) - Select the means and methods of construction. Only adequate and safe procedures, methods,structures and equipment shall be,used; (b) Furnish,erect,maintain and remove such construction plant and such temporary work as may be required; and be responsible for the safety, efficiency and adequacy of the plant, appliance and methods used and any damage which may result from failure, improper construction, maintenance or operation of such plant,appliances and methods; (c) Provide all architectural and engineering services, scaffolding, hoists, or any temporary structures, light, heat, power, toilets and temporary connections, as well as all equipment, tools and materials and whatever else may be required for the proper performance of the Work; (d) Order and have delivered all materials required for the Work and shall be responsible for all materials so delivered to remain in good condition; (e) Maintain the Development Site in a clean and orderly manner at all times,and remove all paper,cartons and other debris from the Development Site; (f) Protect all Work prior to its completion and acceptance; (g) Restore and repair any properties adjacent and leading to the Development Site damaged as a result of construction of the Project,whether such properties are publicly or privately owned; (h) Implement,and maintain in place at all times,a comprehensive hurricane and flood plan for the Development Site and the Work,and provide a copy of same to the City; (i) Upon the issuance of a Certificate of Occupancy for the Project,deliver to the City,a copy of such Certificate of Occupancy, provided that if the Developer receives more than one Certificate of Occupancy for the Project and receives a Certificate of Occupancy- Commercial prior to receipt of a Certificate of Occupancy-Park or Certificate of Occupancy-Residential, Developer shall deliver to the City a copy of such Certificate of Occupancy- Commercial promptly after receipt thereof and thereafter, promptly upon the issuance of a Certificate of Occupancy-Park and Certificate of Occupancy—Residential, Developer shall deliver a copy thereof to the City;provided,however,Developer acknowledges and agrees that in no event shall any Certificate of Occupancy be issued for the Project or any portion thereof prior to the payment in full in cash to the City of any and all Building Permit Liquidated Damages; (j) Promptly after Completion of Construction,deliver to the City as built drawings and plans and specifications of the Commercial Retail Project; 29 Page 836 of 2461 (k) Upon Completion of Construction, deliver to the City a certification of the Architect (certified to the City on the standard AIA certification form),that it has examined the Approved Plans and that,in its professional judgment,after diligent inquiry,Construction of the Project has been substantially completed in accordance with the Approved Plans applicable thereto, and as constructed, the Improvements comply with all applicable Governmental Requirements; (I) Upon Completion of Construction,ensure that the Commercial Retail improvements and Park Project are free of all liens and encumbrances for all work performed or materials supplied in connection with construction of the Project (excluding any tenant improvements performed by or on behalf of Marina Lessee); (m) Upon Completion of Construction, deliver to the City a final accounting of all costs for design, construction, permitting and fees for the Baseline Commercial Building expended by Developer; (n) Notwithstanding any provision hereof to the contrary (x) at no time during construction of the Project may Developer make any Prohibited Project Changes without the express, prior written Approval of City(which Approval may be granted or withheld by City in City's sole and absolute discretion in accordance with Section 2.2 and Section 2.3) and (y) subject to clause (p) below, Developer shall perform and complete the Work in a manner that does not materially interfere with or affect ingress, egress or access to, or operations of, as applicable, Alton Road, the Miami Beach Marina, the parking garages used by guests of the Miami Beach Marina,the Baywalk or any neighboring properties. Subject to clause(p)below,Developer shall perform and complete the Work in a manner so that it does not cause the Baywalk to close or to be unsafe for use by the public throughout construction of the Project; (o) Developer shall carry on any construction, maintenance or repair activity with diligence and dispatch and shall use diligent, good-faith efforts to complete the same in accordance with this Agreement. Developer shall not, except if an emergency exists (then only to the extent that the City can grant such an exception),carry on any construction,maintenance or repair activity in any easement area, including the Baywalk easement area, that interferes in any material manner with the safety, use or enjoyment of the property encumbered by such easement,but subject to clause (p) below;and (p) Notwithstanding the provisions of clauses(n) and (o)above, Developer may (with prior Approval from the City Manager) close access to Alton Road and/or the Baywalk easement area and/or other easement areas for temporary periods as reasonably necessary in connection with construction of the Project, provided that Developer shall minimize the area and duration of such closure and provide temporary re-routing at all times during the period of such closure to the extent required by and in accordance with Governmental Requirements and any conditions of any regulatory agency have jurisdiction. If re-routing is not reasonably feasible within the Development Site,then the City shall make the nearest public right-of-way available for re-routing, and to the extent the re-routed areas do not provide the public a reasonably equivalent enjoyment experience as that of the areas of the Baywalk closed, then the period of closure of such portion shall not exceed ninety(90) days unless an alternate area of re-routing is provided that does provide such reasonably equivalent enjoyment experience. Section 2.13 Progress of Construction/City's Representative. (a) Developer shall keep the City apprised of Developer's progress regarding the Work, including Developer's progress towards meeting the Building Permit Issuance Date, the Target Dates, Construction Commencement Date and Construction Completion Date. After Commencement of 30 Page 837 of 2461 Construction,Developer shall keep the City reasonably apprised,not less frequently than monthly,of the progress of construction; (b) During the performance of the Work, Developer shall provide the City with an annual accounting of the costs for design,construction,permitting and fees for the Baseline Commercial Building expended by Developer in each twelve (12) month period following Commencement of Construction, which accounting shall be delivered to the City within thirty(30)days after the end of each twelve month period and shall be accompanied by proof of payment and other supporting documentation reasonably requested by the City,and a final accounting of the costs for design,construction,permitting and fees for the Baseline Commercial Building expended by Developer shall be delivered to the City promptly but not later than 45 days after Completion of Construction of the Project; (c) Prior to the Commercial Release Date,the City may,from time-to-time,designate one or more employees or agents to be the City's representative ("City's Representative"), who may, during normal business hours, in a commercially reasonable manner,visit, inspect and monitor the Project,the materials to be used thereon or therein, contracts,'records, plans, specifications and shop drawings relating thereto,whether kept at Developer's offices or at the Development Site or elsewhere(which shall be kept at the address specified in Section 11.5)as often as may be reasonably requested. Further,City's Representative shall be advised of, and entitled to attend, meetings among Developer, Developer's representative and the General Contractor or any subset of this group. Developer will cooperate with the City to enable City's Representative to conduct such visits, inspections and appraisals. Developer shall make available to City's Representative for inspection, with commercially reasonable notice, daily log sheets covering the period since the immediately preceding inspection showing the date, weather, subcontractors on the job, number of workers and status of construction.To the fullest extent permitted by law, City shall protect from disclosure any records that are confidential and exempt from disclosure under Florida law, provided, however,that nothing herein shall preclude the City or its employees from complying with the disclosure requirements of the Public Records Act,and any such compliance shall not be deemed an event of default by the City under this Agreement. City shall use its good-faith, diligent efforts to provide timely written notice to Developer of any public records request seeking any records of Developer that may be within the City's custody, possession or control, to permit Developer the opportunity to seek to protect such information from disclosure. Nothing contained herein shall or is deemed to limit the City's inspection rights in its governmental and/or regulatory capacity. Section 2.14 Intentionally Deleted. Section 2.15 Connection of Buildings to Utilities. (a) Developer,at its sole cost and expense for the Development Site and in compliance with all Governmental Approvals and Governmental Requirements, shall install or cause to be installed all necessary connections between the Improvements, and the water, sanitary and storm drain mains and mechanical and electrical conduits whether or not owned by the City. (b) Developer shall pay for the cost, if any, of locating, grounding and installing within the Development Site, as applicable, new facilities for sewer,water, electrical, and other utilities as needed to service the Project, and, at its sole cost and expense, will install or cause to be installed inside the property line of the Development Site,any and all necessary utility lines,with adequate capacity and the sizing of utility lines for the Project, as contemplated on the Approved Plans. 31 Page 838 of 2461 Section 2.16 Permits and Approvals. Developer shall secure and pay for all Governmental Approvals for the Work and shall pay any and all fees and charges due to and collected by the City or any other Governmental Authority connected with issuing such Governmental Approvals, if any. Section 2.17 City and Developer to Join in Certain Actions. After receiving a written request from Developer that is consistent with all Governmental Requirements and in accordance with this Agreement, the City,at Developer's sole cost and expense(including City's reasonable attorneys'fees in reviewing any agreements), shall join Developer when required by law in any and all applications and agreements for Governmental Approvals as may be commercially reasonably necessary for developing and constructing the Project, which applications and agreements are necessary because City is the fee owner of the Land and/or the properties surrounding the Land, and which applications and agreements may include applications for subdivision approval, covenants in lieu of unity of title, easement agreements, and demolition permits and applications for Design Review Board approval for buildings located on the Development Site and all matters set forth in Section 8.4(e), which joinder shall be delivered by the City within fifteen (15) days with respect to all such applications for Governmental Approvals and within five (5)days following the parties'agreement with respect to any covenants,easements or other agreements required in connection with such Governmental Approvals. Developer shall pay all fees and charges for all such applications. Failure of the City to perform as requested within such fifteen(15)or five(5)day period, as applicable, shall be deemed a City Delay for the number of days of delay beyond such fifteen (15) or five(5)day period,as applicable. Section 2.18 Compliance with Laws. Developer will comply with any Governmental Requirements in constructing and operating the Project. Section 2.19 Art in Public Places. Developer shall comply with the City's Art In Public Places (AIPP) program requirements under Section 82-536 through 82-612 of the City Code,as applicable,with respect to the Commercial Retail Project,including the Park Project. The City acknowledges and agrees that AIPP does not apply to the Residential Project. Developer shall contribute to the City's Art in Public Places fund the total of 2%of the"construction cost,"as such term is defined in Section 82-537 of the City Code,of the Commercial Retail Project,including the Park Project no later than date of execution of the applicable General Contract by Developer and the applicable General Contractor, as required by the City Code. Subject to approval by the City Commission, in its sole discretion, Developer may request that its AIPP contribution be allocated for an AIPP project or commission to be incorporated within the Park Project or other public areas of the Project, with Developer to be responsible for all amounts in excess of the required AIPP contribution. Section 2.20 Adjustment to Legal Descriptions. Developer and the City acknowledge that the final legal descriptions for the Commercial Retail Premises and Residential Parcel are subject to revision based upon the Project Approvals and upon the final,as-built structures. Developer and the City shall reasonably cooperate with one another from time to time after Closing, upon either party's request and at Developer's expense,to correct the legal descriptions to conform to Project Approvals and to conform to the final, as-built structures.. Such cooperation shall include, without limitation, execution and delivery by each party to the other of amendments to this Agreement to accurately reflect the legal descriptions and special warranty deeds as required to correct the legal descriptions to conform to the Project Approvals and to the final,as-built structures. Section 2.21 Sales Trailer. Notwithstanding anything in this Agreement to the contrary, at all times during the Term the Developer shall have the right to permit, develop, construct, install and operate 32 Page 839 of 2461 construction trailers, leasing trailers and sales trailers, and improvements related thereto, on the Development Site. Developer shall indemnify the City and City Parties for any and all Claims arising out of, relating to or resulting from any of the foregoing except to the extent caused by the gross negligence or willful misconduct of the City or the City Parties. Section 2.22 Public Benefit Improvements. (a) Developer shall submit plans and specifications for the Public Benefit Improvements to the City Manager for Approval prior to commencement of any performance of the Public Benefit Improvements. All plans and specifications for the Public Benefit Improvements shall be prepared by Developer,at Developer's sole cost and expense,in accordance with all Governmental Requirements. The City Manager shall review and either Approve or reject such plans and specifications within fifteen (15) Business Days after receipt of the same. If the City Manager fails to confirm or reject such plans and specifications within such fifteen (15) Business Day period, then such plans and specifications shall be deemed Approved by the City Manager. However, if the City Manager timely rejects such plans and specifications, it shall give the specific and detailed reasons for such rejection; in which event, the Developer shall, within sixty (60) days after receiving the City Manager's disapproval notice, Developer shall submit revised proposed modifications to the City Manager for its Approval pursuant to the foregoing process until such plans and specifications have been or are deemed to have been Approved by the City Manager. Promptly following City Manager's Approval of plans and specifications for any component of the Public Benefit Improvements,Developer shall submit same to all applicable Governmental Authorities for approval and shall pursue all such approvals with due diligence and in good faith. To the extent Developer reasonably deems it practicable, Developer shall include the plans and specifications for the Public Benefit Improvements within the plans and specifications described in Section 2.2 and Section 2.3 above;provided that the City's Approval rights with respect the plans and specifications for Public Benefit Improvements shall be in accordance with this Section 2.22. Following the issuance of all applicable Governmental Approvals, Developer shall diligently prosecute completion of each component of the Public Benefit Improvements in good faith, in a good and workmanlike manner, and in accordance with the plans and specifications Approved by the City Manager. Any Approval of the plans and specifications for the Public Benefit Improvements or any component thereof by the City shall be for its own benefit in its proprietary capacity as the owner of the Land and shall not be deemed to mean, and the City,in such proprietary capacity, makes no representation, that such plans and specifications comply with all applicable Governmental Approvals and Governmental Requirements. (b) To the extent Developer reasonably deems it practicable,Developer shall coordinate the completion of the Public Benefit Improvements with the Completion of Construction of the Commercial Retail Project,including the Park Project,and shall use diligent,good faith efforts to complete the Public Benefit Improvements contemporaneously with Completion of Construction and prior to the expiration of the Term; provided that Developer shall complete those portions of the Public Benefit Improvements constituting improvements to the Park Project above the Baseline Park at time of Completion of Construction of the Park Project. During the performance of the Public Benefit Improvements,Developer shall provide the City with an annual accounting of ail costs for design, construction, permitting and fees for the Public Benefit Improvements expended by Developer in each twelve(12)month period following commencement of performance of the Public Benefit Improvements. Such accounting shall be delivered to the City within thirty(30)days after the end of each twelve month period and shall be accompanied by proof of payment and other supporting documentation reasonably requested by the City. Developer shall provide the City with a final accounting of all costs for design,construction, permitting and fees expended by Developer for the Public Benefit Improvements for the Park Project not later than 45 days after • 33 Page 840 of 2461 completion of the Park Project and shall deliver a final accounting for all such costs expended by Developer for the remaining Public Benefit Improvements within 45 days after completion thereof. (c) In the event the Public Benefit Improvements are not complete on or prior to the expiration of the Term,then provided that Developer is using diligent,good faith efforts to complete the Public Benefit Improvements in accordance with a schedule of performance submitted to and Approved by the City,Manager not later than six months prior to the expiration of the Term, Developer may escrow with the City,as escrow agent,the remaining balance of the Public Benefits Investment to the extent not yet paid, which balance shall be disbursed by the City to Developer towards the costs of completion of the Public Benefit Improvements upon receipt by the City of a disbursement request from Developer setting forth the Public Benefit Improvements to be performed and the costs thereof and such other supporting documentation reasonably requested by the City. (d) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Developer be obligated to expend more than $5,000,000 in the aggregate in connection with the Public Benefit Improvements, including hard and soft costs in connection with the development, construction and completion thereof. Section 2.23. Early Work. Developer agrees that with respect to any Early Work consisting of site work, utility work, environmental remediation or ancillary demolition, (a) any such work must be consistent with the Project Concept Plan and Mandatory Project Elements and must be performed in accordance with the requirements of the City Code and any other applicable laws, (b) Developer shall have obtained, and shall have delivered to City a copy of, all Governmental Approvals necessary for the commencement and performance of such work, (c) Developer shall have entered into, and delivered to the City a duly executed copy of,the construction contract or construction contracts between Developer and duly licensed general contractor(s) for such work, (d) Developer shall have presented evidence reasonably acceptable to the City that all insurance coverages required under this Agreement are in place and (e) Developer shall have executed a site access agreement with the Marina Lessee and/or Existing Marina Lessee permitting access to the portions of the Development Site leased to the Marina Lessee and/or Existing Marina Lessee as necessary. ARTICLE III LAND USES AND DEVELOPMENT OBLIGATIONS Section 3.1 Covenant Regarding Land Uses. Developeragrees and covenants to devote the Project only to the uses specified in this Agreement and to be bound by and comply in all material respects with all of the provisions and conditions of this Agreement. In addition, and except as hereinafter set forth, Developer shall not have the right to seek or obtain different uses or a change in such uses either by requesting a zoning change or by court or administrative action without first obtaining the City's Approval, which Approval may be granted or denied in the City's sole discretion. Section 3.2 Applications for Development Approvals and Development Permits. Developer acknowledges that development of the Project will require design review approval by the City's Design Review Board and conditional use approval by the City's Planning Board (collectively, the "Project Approvals"). Within six (6) months after the Effective Date, Developer, at Developer's sole cost, shall prepare and file with the City complete applications requesting the Project Approvals and pay all applicable application fees and expenses. Developer shall diligently pursue the Project Approvals in good faith. Promptly following Design Review Board Approval of Developer's plans and specifications, 34 Page 841 of 2461 Developer will initiate and diligently pursue in good faith,any other applications for Development Orders and Development Permits that may be required in connection with the Project. Developer shall be solely responsible for obtaining all final, non-appealable Project Approvals, Development Orders and Development Permits for the Project. No extension of any time period herein shall be deemed to be an extension of any time periods contained within the Project Approvals, Development Permits or Development Orders. - Section 3.3 Concurrency. Developer shall be solely responsible for obtaining all land use permits, including all permits and approvals required pursuant to Section 163.3180, Florida Statutes, and Chapter 122, City Code, with respect to mobility fees and concurrency requirements for sanitary sewer, solid waste, drainage, potable water, recreation and open space, and public schools (the "Concurrency Requirements"). Prior to applying for the Building Permit for the Project, Developer shall apply for preliminary concurrency determinations for the Project with the applicable review departments, as defined in Section 122-4 of the City Code. Developer shall diligently and in good faith comply with the all of the requirements of Section 122-6 of the City Code to obtain an estimate of concurrency mitigation and mobility fees, and if the applicable review department determines that the required public facilities are or will be available to serve the proposed development,the applicable review department shall issue a concurrency determination impact of no less than 36 months from the date of issuance of the determination, which shall be specified on the face of the concurrency determination. In the event the issuance of a concurrency determination is based on an approved mitigation program,such determination shall be expressly conditioned upon compliance with such program. Provided that (i) a concurrency determination impact certificate is issued, (ii) the Design Review Board approves a Development Order or Development Orders for the Project and such order(s) becomes final (after all appeal periods have expired without an appeal being filed, or if filed, resolved favorably for Developer), and (iii) Developer pays applicable mitigation fees(including impact fees,concurrency fees,and/or mobility fees that may be due) or provides for applicable mitigation prior to Building Permit, then in that event, a final reservation certificate shall be issued and the available capacity for public facilities will be reduced by the projected demand for the Project until the reservation of the capacity expires or becomes permanent. Notwithstanding the foregoing and in accordance with Section 122-3(b)of the City Code,no Development Order shall be issued unless the Developer has proof of payment for all applicable concurrency mitigation and mobility fees, as may be due to all agencies having jurisdiction over the Project.]3 Section 3.4 Compliance with Local Regulations Regarding Development Permits. This Agreement is not and shall not be construed as a Development Permit,approval or authorization to commence any development, fill, or other land modification. Developer and the City agree that the failure of this Agreement to address a particular permit,approval,procedure,condition,fee,term or restriction in effect on the Effective Date shall not relieve Developer of the necessity of complying with the regulation governing said permitting requirements, conditions, fees, terms or restrictions, subject to the terms of this Agreement. Section 3.S Consistency with the City's Comprehensive Plan. The City has adopted and implemented the Comprehensive Plan.The City hereby finds and declares that the provisions of this Agreement dealing 3 Planning Department to confirm. 35 Page 842 of 2461 with the Development Site and the Project are consistent with the City's Comprehensive Plan and Land Development Regulations(subject to ail applicable requirements,permits and approvals).4 Section 3.6 Presently Permitted Development. The development that is presently permitted on the Development Site, including population densities, and building intensities and height,which are subject to this Agreement, is more specifically set forth in Exhibit"M"hereto. Section 3.7 Public Facilities to Serve the Development Site.A description of the public facilities that will service the Project subject to this Agreement,including who shall provide such facilities;the date any new facilities, if needed, will be constructed; and a schedule to assure public facilities are available concurrent with the impacts of the development is included as Exhibit"0"hereto. Section 3.8 Public Reservations,Dedications.A description of the reservations and/or dedications of land for public purposes that are proposed under the terms of this Agreement is included as Exhibit"P" hereto. Section 3.9 Required Development Permits. Attached and made a part hereof as Exhibit "N" is a listing and description of certain local development permits approved or needed to be approved for the development of the Projects,provided that City makes no representation or warranty that the information set forth on Exhibit"N"is correct or complete. Developer releases City from any liability with respect to such information and Developer acknowledges and Developer agrees that Developer is solely responsible for confirming the correctness and completeness of such information and obtaining all applicable Governmental Approvals whether or not set forth on Exhibit"N". Section 3.10 Laws Governing this Agreement. For the entire Term of this Agreement,the City hereby agrees that the City's Land Development Regulations and Comprehensive Plan goals, objectives and policies governing the development of the Development Site as they exist as of the Effective Date of this Agreements shall govern the development of the Development Site and the Project. Notwithstanding the foregoing, the City may apply subsequently adopted laws or policies to the Development Site and the Project(particularly as they may relate to quality of life issues such as,but not limited to noise,litter,and hours of operation)as permitted or required by the Act,including,without limitation,Section 163.3233(2), Florida Statutes,as same may be amended from time to time;provided,however,that this provision shall not be deemed to apply to regulations governing height, floor area ratio ,(FAR), density, parking requirements or permitted uses. Section 3.11 Duration of Development Rights. This Agreement shall run for an initial term of twelve (12) years from the Effective Date, as reasonably extended for (i) City Delays; and/or (ii) Unavoidable Delays, if applicable and each in accordance with this Agreement(the"Term"), and may be extended by mutual consent of the City and Developer subject to a public hearing(s) pursuant to Section 163.3225, Florida Statutes. Consent to any extension of the development rights granted herein is within the sole discretion of each Party. No notice of termination shall be required by either Party upon the expiration of this Agreement, and after the expiration of this Agreement the Parties shall have no further obligations under this Agreement except for those obligations that expressly survive the expiration of this Agreement. 4 Subject to update if amendments to Comprehensive Plan and LDRs not adopted prior to execution. S Subject to approval of Project Amendments on July 29 prior to execution of this Agreement. 36 Page 843 of 2461 ARTICLE IV PROJECT IMPROVEMENTS AND USES Section 4.1 Project Improvements and Uses. (a) Commercial Retail Improvements and Commercial Retail Project. (I) The Commercial Retail Improvements shall have(y)approximately 45,000 square feet of neighborhood-oriented retail uses,cafes and/or restaurants and office and marina uses and(z)any outdoor seating created in connection with such uses; provided, however, the Commercial Retail Improvements shall not include any free-standing outdoor bars or entertainment (unless otherwise permitted by the City Code)or other uses prohibited by the Marina Lease. (ii) The Commercial Retail Improvements shall include approximately 100 parking spaces for use by the marina and Commercial Retail Premises [to replace the parking spaces within the Existing Improvements] [OPEN) and drop off area for valet to serve the Commercial Retail Improvements and other[operational amenities of the marina including short term loading/unlading/deiivery for marina tenants,office/retail tenants,and an area (with adequate turn ratios)to handle fuel tractor trailer, box trucks and vessel provisioning vehicles located on the north side of the Podium and Tower.] [OPEN] (iii) The Commercial Retail Improvements shall include a publicly accessible restroom facility,which,at Developer's election, may be located within the Park Project. (iv) The Commercial Retail Improvements shall include the Green Space and the Park Project; provided however, and notwithstanding anything to the contrary contained in this Agreement, those areasof the Green Space that do not constitute the Park Project are not required to be completed until Completion of Construction of the entire Project. The Certificate of Occupancy—Park shall be issued no later than the Park Project Completion Date. (v) The ground floor footprint of the Podium shall not exceed 45,000 gross square feet(exterior wall to exterior wall). (vi) The provisions of this Section 4.1(a) will be expressly incorporated into the Marina Lease. (b) Residential Improvements and Residential Project. (i) The Residential Parcel shall include a maximum of 0.3 acres on the surface of the Land to consist of the to-be-designed lobby and ancillary areas of the Residential Improvements, as described on Exhibit"B-2". (ii) The Residential Improvements shall include up to 60 residential units constructed within approximately 275,000 gross square feet of residential building development and associated infrastructure; provided, however, that the total floor area of the Residential Improvements, the Commercial Retail Improvements and the Park Project shall not exceed 319,802 square feet. (iii) The Tower shall not exceed 120 feet by 120 feet in width from 66'NGVD and shall not exceed 385 feet in height(as measured from Base Flood Elevation plus maximum Freeboard(BFE+5 feet),and further,as provided in the City's Land Development Regulations,including Section 142-1161 of 37 Page 844 of 2461 the City Code), and any architectural projections thereof will comply with the terms of this Agreement and other applicable provisions of the City's Land Development Regulations. (iv) The Podium shall taper[with increasing setbacks from the ground floor until it is less than the width of the Tower] [OPEN]. (v) Developer acknowledges and agrees that,as part of the consideration to the City for the vacation of the City Right-of-Way Area and for entering into this Agreement, any agreements for the rental, lease, sublease,use or occupancy of residential units within the Residential Improvements for periods of less than six (6) months and one(1) day shall be expressly prohibited with respect to ninety percent (90%) of the residential units owned by the Residential Developer or its Affiliates; provided, however,any agreements for the rental,lease,sublease,use or occupancy with respect to the remaining ten percent(10%)of residential units owned by the Residential Developer or its Affiliates for periods of less than thirty(30)days shall be expressly prohibited. If any of the residential units within the Residential Improvements are developed and sold as a condominium,then the Declaration of Condominium to which such residential units are subjected shall include provisions prohibiting any agreements for the rental, lease, sublease, use or occupancy of residential units owned by person or entities other than the Residential Developer or its Affiliates for periods of less than six(6)months and one(1)day. If requested by the City,the Developer shall make available to the City Manager(or the City Manager's designee) for inspection such other documentation reasonably sufficient to permit the City to verify compliance with the rental restrictions set forth in this Section 4.1(b). (vi) The provisions of this Section 4.1(b) shall be expressly incorporated into the Reciprocal Easement Agreement and Alternate Easement Agreement, as applicable,and the declaration of condominium to which the residential units are subjected,and the provisions of Sections 4.1(a)(v)and 4.1(b)shall be expressly incorporated into deed of conveyance from the City to Residential Developer of the Residential Parcel;provided,however,with respect to the restrictions set forth in such deed,the City (and not any successor owner of the Commercial Retail Premises)shall have the sole right to modify such restrictions,which right may be granted or withheld in the City's sole discretion. (c) Reciprocal Easement Agreement. Upon Closing,the City, Marina Lessee and Developer shall enter into'and record the Reciprocal Easement Agreement,which shall grant reciprocal easements between the Commercial Retail Premises and the Residential Parcel; shall impose rights, obligations and covenants addressing the respective needs of the City, Marina Lessee and the Developer; and, unless an Alternate Easement Agreement is entered into,shall grant the ARF Easements in accordance with Section 4.1(d) below. The Reciprocal Easement Agreement and Alternate Easement Agreement, as applicable, also shall include the restrictions and limitations imposed upon the development of the Residential Parcel pursuant hereto and in the Project Approvals. (d) Alternate Easement Agreement. The Alternate Easement Agreement (or if none, the Reciprocal Easement Agreement) shall provide, at a minimum,for perpetual easements granted by the Developer to the City and Marina Lessee at no charge to the City or Marina Lessee for the exclusive right to use,access,operate, maintain,demolish,install and construct improvements(including utility or other infrastructure improvements)on,across, in and over the portion of the Residential Parcel up to a height of fifty (50) feet NGVD for the purposes of complying with all of the terms and conditions of the Marina Lease including the Marina Lessee's obligation to construct the Alternate Replacement Facilities in accordance with the Marina Lease (and, with respect to the City, for purposes of developing similar alternate replacement facilities by the City or any future lessee of the Commercial Retail Premises in the 38 Page 845 of 2461 event the Marina Lease is not in effect) (collectively,the "ARF Easements"), provided however that until the City has delivered to Marina Lessee a written notice to proceed with construction of the Alternate Replacement Facilities in accordance with the Marina Lease (or to any future lessee of the Commercial Retail Premises in the event the Marina Lease is not in effect), the ARF Easements set forth in the Reciprocal Easement Agreement and Alternate Easement Agreement,as applicable,shall be non-exclusive in favor of the Marina Lessee and the City and only permit the right to use, access, operate, sublease, manage and maintain the portion of the Residential Parcel up to a height of fifty (50) feet NGVD. For avoidance of doubt,the ARF Easements shall not be effective during the period of time commencing on the Commencement of Construction and ending the earliest of(i)the date on which the City has delivered to Marina Lessee a written notice to proceed with construction of the Alternate Replacement Facilities in accordance with the Marina Lease, (ii)Completion of Construction (in which event the REA shall provide all required easement rights)or(iii)termination of this Agreement(other in connection with a termination in connection with Completion of Construction). (e) Park Proiect. Upon Completion of Construction of the Project in accordance with the Approved Plans therefor,together with the Park Project, the City and Marina Lessee shall enter into an amendment to the Marina Lease to remove the land comprising the Park Project from the premises leased pursuant to the Marina Lease. Notwithstanding anything to the contrary contained in this Agreement, the Park shall not be open to the public until Completion of Construction of the Project and amendment to the Marina Lease to remove the land comprising the Park Project from the premises leased pursuant to the Marina Lease,and thereupon the City shall be solely responsible for Park operations,maintenance, repair, reconstruction and security. The terms of this Section 4.1(e)shall be expressly incorporated into the Marina Lease. (f) Stormwater Management. The City shall be solely responsible for the operation, maintenance, repair and reconstruction of those elements of the Public Benefit Improvements that constitute stormwater management facilities for water quality upon Developer's completion of such Public Benefit Improvements. (g) Joinder and Consent. Existing Marina Lessee and Marina Lessee each hereby joins in and consents to this Agreement for purposes of acknowledging and confirming its agreement to the terms of this Section 4.1. Section 4.2 Representations. (a) Developer's Representation. Developer represents to the City that its principals and Affiliates are experienced in the development, construction, leasing, sales and operation of properties similar to the Project generally,and that Developer has independently determined the merits and risks of electing to proceed with the development of the Project,and that Developer is not and,will not be relying upon any information that may have been or hereafter be provided to Developer with respect to or relating to the financial results derived from,financial merits of investing in, or other economic or other benefits that may be realized from the development, construction, leasing, sales and operation, as applicable,of the Project or sale or transfer of Developer's interests in this Agreement. (b) No Representation or Warranties By City. Developer acknowledges and agrees that it has been given the opportunity to perform all inspections and investigations concerning the Development Site,and(i)except as specifically provided in this Agreement,the City is not making and has not made any representations or warranties, express or implied, of any kind whatsoever with respect to the 39 Page 846 of 2461 Development Site, including any representation or warranty of any kind with respect to title, survey, physical condition,suitability or fitness for any particular purpose,the financial performance or financial prospects of the Project, its value, or any other economic benefit that can be realized or expected therefrom, the presence or absence of Hazardous Substances, the tenants and occupants thereof, the zoning or other Governmental Requirements applicable thereto,taxes,the use that may be made of the Development Site,or any other matters with respect to this transaction or Agreement);(ii)Developer has relied on no such representations,statements or warranties, and (iii)City will in no event whatsoever be liable for any latent or patent defects in the Development Site(including any subsurface conditions). (c) "AS IS"Condition of Development Site. Developer acknowledges it has relied solely on Developer's own inspections,tests, evaluations and investigations of and related to this Agreement and the Development Site in its determination of whether to proceed with this Agreement and the Project. As a material part of the consideration of this Agreement, Developer agrees to accept the Development Site in its"AS IS"and"WHERE IS"condition"WITH ALL FAULTS"and latent or patent defects,and without representations and warranties of any kind,express or implied,or arising by operation of law. (d) Survival. The provisions of this Section 4.2 shall survive the termination of this Agreement. ARTICLE V ASSIGNMENT Section 5.1 Purpose of Restrictions on Transfer. This Agreement is granted to Developer solely to develop the Project and its subsequent use according to the terms hereof, and not for speculation in landholding.Developer recognizes that,in view of the importance of developing the Project to the general welfare of the City and the general community,the Developer's qualifications and identity are of particular concern to the community and the City.Accordingly, Developer acknowledges that it is because of such qualifications and identity that the City is entering into this Agreement with Developer, and, in so doing, the City is further willing to accept and rely on the Developer's obligations for faithfully performing all its undertakings and covenants. Section 5.2 Transfers. Developer represents and warrants that Developer has not made,created or suffered any Transfers as of the date of,this Agreement and that the Persons that have an ownership interest in Developer on the date of this Agreement are listed, together with their percentage and character of ownership,on Exhibit"R". Except for Permitted Transfers,no Transfer may or shall be made, suffered or created by Developer,its successors,assigns or transferees without complying with the terms of this Article V. Any Transfer that violates this Agreement shall be null and void and of no force and effect. Section 5.3 Permitted Transfers. (a) Other than Permitted Transfers, no Transfer will be permitted prior to Completion of Construction of the Project without the written Approval of the City Manager. (b) Each of the following Transfers shall be permitted hereunder without the City's Approval ("Permitted Transfers"): (i) a Transfer prior to the Completion of Construction of a direct or indirect interest in Developer, provided that(i)there is no change of Control of the Developer as it exists on the Effective 40 Page 847 of 2461 Date as a result of such Transfer, (ii) David P. Martin (a) holds, directly or indirectly, not less than ten percent(10%) of the ownership interests of Developer, (b)serves, directly or indirectly, as a manager of the Developer,and(c)exercises,directly or indirectly,day-to-day operational control over the Developer (clause(ii)(a),(ii)(b)and(ii)(c),collectively,the"Ownership and Control Requirement")(iii)such transferee satisfies the"Acceptable Owner Criteria"set forth on Exhibit "A"attached hereto, if such transferee is a Proposed Major Transferee (iv) the City is given written notice thereof together with true and correct copies of the applicable information required under Exhibit"A" attached hereto and in accordance with the time frames set forth on Exhibit "A"attached hereto in order for City Manager to confirm that the transferee is an Acceptable Owner, if such transferee is a Proposed Major Transferee; (v) no Event of Default has occurred and is continuing and (vi)all of the conditions precedent to the effectiveness of such Transfer as set forth in Section 5.5 hereof are satisfied; (ii) a one-time Transfer constituting an assignment by Residential Developer of its interest in this Agreement and/or by Commercial Developer of its interests in this Agreement, each to a new special purpose entity having the same legal and beneficial ownership as Residential Developer or Commercial Developer, as applicable, immediately prior to such Transfer (subject only to Permitted Transfers in accordance with clause (i) above and at all times subject to the Ownership and Control Requirement), to the extent required by a Construction Lender or Mezzanine Lender as a condition to such financing and provided that such Transfer shall occur only once during the Term by each of Residential Developer and Commercial Developer; (iii) Any Transfer, if in accordance with the terms and conditions of Article VI, by the First Mortgagee, to an agent, designee or nominee of the First Mortgagee that is wholly owned or Controlled by such First Mortgagee, and any Transfer, if in accordance with the terms and conditions of Article VI, by the Mezzanine Lender, to an agent, designee or nominee of the Mezzanine Lender that is wholly owned or Controlled by such Mezzanine Lender; (iv) Any Transfer directly resulting from the foreclosure of a First Mortgage or the granting of a deed in lieu of foreclosure of a First Mortgage or any Transfer made to the purchaser at foreclosure of a First Mortgage or to the grantee of a deed in lieu of foreclosure of a First Mortgage (if such purchaser or grantee is a nominee in interest of the First Mortgagee),and provided further that such Transfer,purchase or grant is in accordance with the terms and conditions of Article VI; (v) Any Transfer directly resulting from a conveyance to a First Mortgagee of Developer's interest provided it is in accordance with the terms and conditions of Article VI and any Transfer directly resulting from a conveyance to a Mezzanine Lender of direct and/or indirect interests in Developer provided it is in accordance with the terms and conditions of Article VI; (vi) Any Transfer directly resulting from the foreclosure by the Mezzanine Lender of a pledge of direct and/or indirect ownership interests of Developer or any Transfer made to the purchaser at a foreclosure of such pledge of direct and/or indirect ownership interests of Developer (if such purchaser is a nominee in interest of the Mezzanine Lender),or any assignment in lieu of such foreclosure, provided that such Transfer is in accordance with the terms and conditions of Article VI; (vii) Any Transfer that occurs by inheritance, devise, bequest or by operation of law upon the death of a natural person who is the owner of a direct or indirect ownership interest in Developer, provided that, in each case, at all times after such Transfer,the transferor, or in the case of death,the Person who inherits transferor's interest,retains Control of the transferred interest; 41 Page 648 of 2461 (viii) Any Transfer to a trust, partnership or other entity for family estate planning purposes,provided that,in each case,at all times after such Transfer,the transferor retains Control of the transferred interest;or (ix) After any Transfer to a First Mortgagee or Mezzanine Lender or agent,designee or nominee thereof (but not after a Transfer to any other Person pursuant to a foreclosure of a First Mortgage or Mezzanine Loan) under Sections 5.3(b)(iii) — (vi), a Transfer by such First Mortgagee, Mezzanine Lender or agent, designee or nominee thereof(A)to an Affiliate of the transferor or(B)among direct or indirect owners of such transferor, provided that, in each case,there is no change in Control of the Developer as a result of such Transfer and at all times after such Transfer, such transferee is an Acceptable Owner;or (x) After an initial Transfer to any entity that is listed on any national securities exchange (which shall be limited to the Permitted Transfers or other Approval provisions herein, as applicable),any Transfer of direct or indirect interests in Developer through an entity that is listed on any national securities exchange. Notwithstanding anything in this Article V or in this Agreement to the contrary: (y) the restrictions, limitations and prohibitions contained in this Article V shall automatically terminate,extinguish and be of no further force or effect with respect to the Commercial Retail Project,the Park Project and the direct and indirect interests in Commercial Retail Developer upon the triggering of the Commercial Release Date and following the Commercial Release Date,Transfers of the Commercial Retail Project shall be governed by the terms and conditions of the Master Sublease (provided that such terms and conditions conform in all material respects to this Article V and/or corresponding provisions of the Marina Lease), until the Master Sublease terminates or expires, and thereafter, the Marina Lease; and (z) the restrictions, limitations and prohibitions contained in this Article V shall automatically fully terminate,extinguish and be of no further force or effect immediately upon Completion of Construction of the Project. Section 5.4 Transfer Requiring City's Approval. Regarding any Permitted Transfer pursuant to Section 5.3(b)(i)—(ix)or any other Transfer that is not a Permitted Transfer,Developer shall give or cause to be given to the City written notice of a Transfer(in the case of a Permitted Transfer),or written notice requesting Approval of any other Transfer that is not a Permitted Transfer,and submitting all information reasonably necessary for the City Manager(or the City Commission,with respect to Transfers to certain Foreign Instrumentalities as specified herein)to evaluate the proposed transferees and the Transfer and to obtain the City's Approval of same,when such Approval is required under the terms of this Agreement. If a Permitted Transfer under Sections 5.3(b)(i)or(ii),said information shall demonstrate that there is no change of Control of Developer as a result of such Transfer,the transferee is an Acceptable Owner as set forth on Exhibit "A" attached hereto, if applicable, and the Ownership and Control Requirement is satisfied;if a Permitted Transfer under Sections 5.3(b)(vii)or(viii)said information shall demonstrate that the transferor,or in the case of death,the Person who inherits transferor's interest,retains Control of the transferred interest; if a Permitted Transfer under Section 5.3(b)(ix), said information shall demonstrate that there is no change in Control and that the transferee is an Acceptable Owner as set forth on Exhibit "A" attached hereto. If not a Permitted Transfer, Developer shall provide to the City the information described in Paragraph C of Exhibit"A"and the provisions described in Paragraph D of Exhibit"A" shall apply. The City's confirmation or Approval process shall proceed as set forth on Exhibit "A" attached hereto. Any Approval of a Transfer to a Foreign Instrumentality (other than to any of the member countries of the European Union, each as existing as of the Effective Date, United Kingdom, Norway, Canada and Mexico,or Persons Controlled by any of the foregoing countries)shall be subject to the prior 42 Page 849 of 2461 written approval of the City Commission,which approval may be granted,conditioned or withheld by the City Commission in its sole discretion. Any Approval of a Transfer shall not waive any of the City's rights to Approve or disapprove of any subsequent Transfer. Developer shall from time to time throughout the Term, as the City shall reasonably request, furnish the City with a complete statement, subscribed and sworn to by a Responsible Officer of Developer,setting forth the full names and address of holders of the ownership interests in Developer who hold, directly or indirectly,at least a ten percent(10%) interest in Developer as well as to confirm the percentage ownership interest,if any,of such Responsible Officer. Section 5.5 Effectiveness of Transfers. No Transfer, except for Transfers under Sections 5.3(b)(iii) through (vii) and 5.3(b)(x), shall be effective unless and until executed copies of the documents that convey title to the transferred interest are delivered to the City within thirty(30)days after the occurrence of such Transfer. Section 5.6 Reservation of Rights. Nothing in this Article V is deemed to modify or amend the restrictions on transfers expressly set forth in the Marina Lease and/or Master Sublease. ARTICLE VI CONSTRUCTION FINANCING;RIGHTS OF MORTGAGEE, MEZZANINE LENDER AND DEVELOPER Section 6.1 Conditions of Construction Financing,First Mortgage and Mezzanine Loan. (a) (x) Developer shall have the right to secure a Mezzanine Loan to finance the Project and, in conjunction with and to secure that financing,may enter into a pledge of all or any portion of its direct and/or indirect ownership interests in favor of a Mezzanine Lender, and (y) not earlier than satisfaction of the Construction Commencement Conditions, Developer shall have the right to secure a Construction Loan to finance the Project and, in conjunction with and to secure that financing, may enter into a First Mortgage in favor of a First Mortgagee,in each case, provided that: (i) any such secured financing of the Project exclusively secures debt of the Developer or the Mezzanine Borrower directly related to the Project; (ii) no First Mortgage or other encumbrance executed by the Developer in connection with such First Mortgage or Mezzanine Loan or otherwise will extend to or be a lien or encumbrance upon City's interest in any part of the Land or in any right appurtenant to that interest; (iii) the First Mortgage and any other encumbrance executed by the Developer in connection with such First Mortgage or otherwise shall at all times,without the necessity for the execution of any further documents, be subject and subordinate to any interest of the City in the Land subject to this Article VI; provided that(A)the First Mortgagee agrees from time to time upon request and without charge to execute,acknowledge and deliver any instruments reasonably requested by the City under this Agreement to evidence the foregoing subordination and (B) the City agrees from time to time upon reasonable request and without charge to execute,acknowledge and deliver any instruments reasonably requested by such First Mortgagee or Mezzanine Lender to evidence the City's non-disturbance and recognition of the rights granted to such First Mortgagee or Mezzanine Lender pursuant to this Section 6.1; (iv) the rights of the City,the Marina Lessee or Existing Marina Lessee in the Land and arising out of the Existing Marina Lease,the Marina Lease and this Agreement shall not be affected by the First Mortgage,First Mortgagee, Mezzanine Loan or Mezzanine Lender, nor shall the City,Marina Lessee 43 Page 850 of 2461 or Existing Marina Lessee be deprived in any other way of its rights in the Land or under the Existing Marina Lease,the Marina Lease and this Agreement,except to the extent provided in this Article VI or in any subordination, non-disturbance and recognition agreement between the City (and Marina Lessee and/or Existing Marina Lessee if applicable) and such First Mortgagee or Mezzanine Lender that is consistent with the terms of this Agreement; (v) Developer shall at all times remain liable hereunder for the performance of all covenants and conditions as provided in this Agreement; (vi) Following a foreclosure sale,any purchaser at such foreclosure sale acquiring any right, title or interest in or to this Agreement, shall enter into in a written instrument reasonably satisfactory to the City, to assume and agree to perform all of the terms, covenants and conditions of Developer hereunder arising after the date of such Transfer but,with respect to a First Mortgagee(or its designee or nominee taking title),only during its period ownership of the Project,(provided that City does not waive or relinquish its right,and shall have the right,to enforce its remedies with respect to any Event of Default existing as of the date of such Transfer), that no additional mortgage or assignment of this Agreement or pledge of ownership interests of Developer will be made except in accordance with the provisions contained in this Article VI, and that a duplicate original of such written instrument, duly executed and acknowledged by such purchaser and in recordable form, is delivered to the City immediately after the consummation of such sale, or, in any event, prior to taking possession of the Development Site. (b) At the request of the First Mortgagee or the Mezzanine Lender,if any,the First Mortgagee or Mezzanine Lender,as applicable,Developer and the City(by and through the City Manager)shall enter into a non-disturbance, recognition and attornment agreement containing the provisions set forth in Section 6.1(d) below and such other terms and conditions as are reasonably acceptable to the First Mortgagee or Mezzanine Lender, as applicable,and the City Manager, after consultation with the City's Chief Financial Officer and City Attorney. (c) Developer shall deliver to the City, promptly after execution by Developer or Mezzanine Borrower, (i) with respect to First Mortgagees, a true and verified recorded copy of the First Mortgage and any amendment,modification or extension thereof,together with the name and address of the First Mortgagee and (ii)with respect to any Mezzanine Lenders,a true and correct copy of any Mezzanine Loan agreement and any amendment,modification or extension thereof,together with the name and address of the Mezzanine Lender. (d) For so long as any First Mortgage encumbers the Development Site, or, as applicable, a Mezzanine Lender holds a pledge of Developer's direct and/or indirect ownership interest, and provided the conditions of Section 6.1(a)through(c)above have been satisfied: (i) in any event where the City gives Developer notice of an Event of Default,the City shall deliver a copy of such notice to the First Mortgagee and Mezzanine Lender,at the name and address designated in writing by the First Mortgagee and Mezzanine Lender to the City from time to time(the City shall be deemed to have fulfilled its notice obligation by providing the required notice to the address delivered to the City in accordance with Section 6.1(c) or such other address so designated by the First Mortgagee or Mezzanine Lender to the City in writing and shall not be responsible for any liability in the event such address is not current); 44 Page 851 of 2461 (ii) notwithstanding the time allowed for Developer to cure an Event of Default,the First Mortgagee and the Mezzanine Lender shall have the right, but not the obligation, up to fifteen (15) days following the City's notice thereof to cure a monetary default, and up to thirty (30) days following the City's notice thereof to cure a non-monetary Event of Default (except an Event of Default under Section 7.1(d)hereof,for which the First Mortgagee and Mezzanine Lender will not be given any additional time to remedy), but if such non-monetary Event of Default cannot be cured within such thirty (30) day period, then the First Mortgagee and Mezzanine Lender shall (except as provided in clauses (iii) and (iv) below) have up to ninety(90) days to cure, provided that it has started to do so within the initial thirty (30) day period and thereafter continues to diligently pursue the cure. The City will accept performance by the First Mortgagee and Mezzanine Lender of any covenant, condition or agreement on Developer's part to be performed hereunder with the same force and effect as though performed by Developer;and (iii) notwithstanding the provisions of this Agreement to the contrary, including Article VII hereof,no Event of Default by Developer will be deemed to exist as to the First Mortgagee,and the City shall not be permitted to exercise any right to terminate this Agreement due to an Event of Default of Developer, as long as the First Mortgagee, in good faith, either(A) commences to cure such Event of Default and prosecute the same to completion in accordance with clause(ii)above,or(B) if the nature of any non-monetary Event of Default(except an Event of Default under Section 7.1(d)hereof,for which the First Mortgagee will not be given any additional time to remedy) is such that possession of or title to the Project is reasonably necessary to cure the Event of Default or if the Event of Default is of the type that cannot commercially reasonably be cured by the First Mortgagee(e.g.,Developer bankruptcy)(and which will be waived as to the First Mortgagee if the First Mortgagee commences to cure all other Events of Default and prosecutes same to completion in accordance with this clause(iii)or clause(ii)above),files a complaint for foreclosure and thereafter prosecutes the foreclosure action in good faith and with due diligence and continuity (subject to any stays, moratoria or injunctions applicable thereto) and obtains possession or title,to the extent a cure cannot be effected without possession or title,directly or through a receiver, and as promptly as practicable after obtaining such possession or title, to the extent a cure cannot be effected without possession or title,commences promptly to cure such Event of Default and to prosecute the same to completion in good faith and with due diligence and continuity;provided,however, that the First Mortgagee has delivered to the City,in writing within twenty(20) days following receipt of City's notice of default, its agreement to take the action described in clause (A) or (B) of this clause(iii), and that during the period in which such action is being taken (and any foreclosure proceedings are pending), all of the other obligations of Developer under this Agreement, to the extent they are susceptible of being performed by the First Mortgagee(e.g.,the payment of any amounts due to the City hereunder, including liquidated damages), are being duly performed. However, at any time after the delivery of the aforementioned agreement,the First Mortgagee may notify the City,in writing,that it has relinquished possession of the Development Site, or that it will not institute foreclosure proceedings or, if such proceedings have been commenced, that it has discontinued them, and in such event, the First Mortgagee will have no further liability under such agreement from and after the date which is 30 days after it delivers such notice to the City(except for any obligations accruing prior to 30 days after the date it delivers such notice),and,thereupon, subject to the rights of the Mezzanine Lender set forth in clause (iv) below,the City will have the unrestricted right to terminate this Agreement if the Event of Default is a Material Event of Default, and to take any other action it deems appropriate by reason of any Event of Default,and upon any such termination,the provisions of Section 6.1(h) hereof will apply; (iv) notwithstanding the provisions of this Agreement to the contrary, including Article VII hereof, no Event of Default by Developer will be deemed to exist as to the Mezzanine Lender, and the City shall not be permitted to exercise any right to terminate this Agreement due to an Event of 45 Page 852 of 2461 Default of Developer, as long as the Mezzanine Lender and/or First Mortgagee, in good faith, either(A) commences to cure such Event of Default and prosecute the same to completion in accordance with clause (ii) or (iii) above, or (B) if the nature of any non-monetary Event of Default (except an Event of Default under Section 7.1(d)hereof,for which the Mezzanine,Lender will not be given any additional time to remedy)is such that title to the direct and/or indirect ownership interests of Developer is reasonably necessary to cure the Event of Default or if the Event of Default is of the type that cannot commercially reasonably be cured by the Mezzanine Lender(e.g., Developer bankruptcy) (and which will be waived as to the Mezzanine Lender if the Mezzanine Lender and/or First Mortgagee commences to cure all other Events of Default and prosecutes same to completion in accordance with clause (ii) or (iii) above), has taken all commercially reasonable steps necessary to foreclose the pledge of the Developer's direct and/or indirect ownership interests,and prosecutes such action in good faith and with due diligence and continuity (subject to any customary and reasonable restrictions imposed under any intercreditor agreement or similar agreement between any First Mortgagee and Mezzanine Lender and/or any stays, moratoria or injunctions applicable thereto) and obtains title to the direct and/or indirect ownership interests of the Developer,and as promptly as practicable after obtaining such title,commences promptly to cure such Event of Default and to prosecute the same to completion in good faith and with due diligence and continuity;provided, however,that the Mezzanine Lender has delivered to the City,in writing within twenty (20)days following receipt of City's notice of default, its agreement to take the action described in clause(A)or(B)of this clause(iv),and that during the period in which such action is being taken,all of the other obligations of Developer under this Agreement, to the extent they are susceptible of being performed by the Mezzanine Lender (e.g., the payment of any amounts due to the City hereunder, including the balance of the Purchase Price or liquidated damages),are being duly performed. However, at any time after the delivery of the aforementioned agreement, the Mezzanine Lender may notify the City, in writing, that it has relinquished title to the direct and/or indirect ownership interests of the Developer or that it will not seek to foreclose the pledge of Developer's direct and/or indirect ownership interests or, if such foreclosure has commenced, that it has been discontinued, and in such event, the Mezzanine Lender will have no further liability under such agreement from and after the date which is 30 days after it delivers such notice to the City(except for any obligations accruing prior to 30 days after the date it delivers such notice),and,thereupon,subject to the rights of the First Mortgagee set forth in clause (iii) above,the City will have the unrestricted right to terminate this Agreement if the Event of Default is a Material Event of Default,and to take any other action it deems appropriate by reason of any Event of Default,and upon any such termination,the provisions of Section 6.1(h)hereof will apply. (e) From and after the date upon which the City receives the notice described in Section 6.1(c) hereof,the City will not(i)consent to a cancellation or surrender of this Agreement(except upon the expiration of the Term), or any amendment or modification hereof or(ii)terminate this Agreement other than as provided in this Article VI(except upon the expiration of the Term)without the prior written consent of the First Mortgagee and Mezzanine Lender,which consent shall not be unreasonably delayed, conditioned or withheld. For avoidance of doubt, the City shall not have the right to terminate this Agreement due to an Event of Default unless such Event of Default is a Material Event of Default. (f) Notwithstanding anything in this Agreement to the contrary, foreclosure of a First Mortgage or any sale thereunder, whether by judicial proceedings or by any power of sale contained in the First Mortgage or applicable law, or any conveyance of the Project from Developer to the First Mortgagee or its designee or nominee in lieu of the foreclosure or other appropriate proceedings in the nature thereof, or any foreclosure of a Mezzanine Loan, or conveyance of the Developer's direct and/or indirect ownership interest in lieu thereof,shall not: 46 Page 853 of 2461 (I) require the City's consent;or (ii) provided the First Mortgagee or the Mezzanine Lender has complied with the provisions of this Article VI,constitute a breach of any provision of or a default under this Agreement. (g) If the First Mortgagee or any other foreclosure sale purchaser subsequently assigns or transfers its interest under this Agreement after acquiring the same by foreclosure or by an acceptance of a deed in Lieu of foreclosure or subsequently assigns or transfers its interest under any new agreement entered into pursuant to Section 6.1(h) below, and in connection with any such assignment or transfer, the First Mortgagee or any other foreclosure sale purchaser takes back a First Mortgage to secure a portion of the purchase price, the holder of such First Mortgage shall be a First Mortgagee entitled to receive the benefit of this Article VI and all other provisions of this Agreement intended for the benefit of a First Mortgagee. Similarly, if a Mezzanine Lender or a purchaser under a UCC sale obtains title to the direct and/or indirect ownership interests in Developer and subsequently assigns or transfers its interests in such ownership interests, or subsequently assigns or transfers its interest under any new agreement entered into pursuant to Section 6.1(h) below, and in connection with any such assignment or transfer, the Mezzanine Lender or any other UCC sale purchaser takes back a pledge of the direct and/or indirect ownership interests of the Developer to secure a portion of the purchase price,the holder of such pledge shall be a Mezzanine Lender entitled to receive the benefit of this Article VI and all other provisions of this Agreement intended for the benefit of a Mezzanine Lender. (h) Should the Developer or any First Mortgagee or Mezzanine Lender not cure the alleged Event of Default as provided in this Section 6.1, the City has the right to terminate this Agreement by reason of any uncured Event of Default if such Event of Default is a Material Event of Default as provided in this Agreement. If this Agreement is terminated by the City in accordance with the foregoing or is terminated as a result of the bankruptcy of the Developer,the City shall give written notification of such termination to the First Mortgagee and Mezzanine Lender,and the City shall,upon written request of the First Mortgagee to the City received within thirty(30) days after such notice of termination, enter into a new development agreement for the Development Site with such First Mortgagee or Developer(as owned by Mezzanine Lender),as developer,for the remainder of the Term with the same covenants, conditions and agreements (except for any requirements which have been fully satisfied by Developer or City prior to termination or which pertain to the direct and/or indirect ownership of Developer) as are contained herein. (i) The City's delivery of the Development Site to the First Mortgagee or Developer (as owned by Mezzanine Lender), as applicable, as developer, pursuant to a new development agreement shall be: (i) made without representation or warranty of any kind or nature whatsoever either express or implied; (ii) First Mortgagee or Developer (as owned by Mezzanine Lender), as developer, shall take such Development Site"as-is"in its then current condition;and (iii) upon execution and delivery of such new development agreement, First Mortgagee or Developer(as owned by Mezzanine Lender),as developer,at its sole cost and expense shall be responsible for taking such action as shall be necessary to cancel and discharge this Agreement and to remove Developer named herein and any other occupant(other than as allowed by the First Mortgagee or Developer(as owned by Mezzanine Lender),as applicable,as developer,or the City)from the Project. 47 Page 854 of 2461 (j) The City's obligation to enter into such new development agreement for the Development Site with the First Mortgagee or Developer(as owned by the Mezzanine Lender) shall be conditioned upon,on the date the new development agreement is executed: (i) the City receiving payment of the Initial Purchase Price and the First Mortgagee's or Developer's (as owned by the Mezzanine Lender),as applicable, assumption of the City Note and the City Mortgage; (ii) all monetary defaults hereunder having been cured; (iii) all non-monetary defaults susceptible to cure having been remedied and cured (or First Mortgagee or Developer(as owned by Mezzanine Lender), as applicable, as developer, having commenced such cure and continuing to diligently complete the cure in accordance with clauses (iii) or (iv)of paragraph (d)above,as applicable);and (iv) the City receiving payment of all expenses, including reasonable attorneys' fees and disbursements and court costs, incurred by the City in connection with such Event of Default, the termination of this Agreement and the preparation of the new development agreement,together with interest thereon at the lesser of the Default Rate or the highest rate permitted by law,from the due date or the date expended by the City,as the case may be,to the date of actual payment from First Mortgagee or Mezzanine Lender, as applicable. Section 6.2 No Waiver of Developer's Obligations or City's Rights. Nothing contained herein or in any Mortgage shall be deemed or construed to relieve Developer from the full and faithful observance and performance of its covenants, conditions and agreements contained herein, or from any liability for the non-observance or non-performance thereof,or to require, allow or provide for the subordination to the lien of such Mortgage or to any Mortgagee of any estate, right, title or interest of the City, Marina Lessee or Existing Marina Lessee in or to the Land, buildings and structures on the Commercial Retail Premises,or the Existing Marina Lease,the Marina Lease and this Agreement, nor shall the City, Marina Lessee or Existing Marina Lessee be required to join in such mortgage financing or be liable for same in any way. City's, Marina Lessee's or Existing Marina Lessee's interest in the Land, the Existing Marina Lease, the Marina Lease and this Agreement, as the same may be modified, amended or renewed, will not at any time be subject or subordinate to(a)any Mortgage now or hereafter placed upon Developer's interest in the Development Site,or(b)any other liens or encumbrances hereafter affecting Developer's interest in the Development Site or this Agreement. City represents and warrants to Developer that no mortgages currently exist against its fee interest in the Land,and acknowledges that this Agreement shall not be subordinate to any future mortgage against the fee interest in the Land. Notwithstanding anything to the contrary contained in this Agreement,if all or any portion of the interest of City in the Land or this Agreement shall be acquired by reason of foreclosure of any mortgage,security agreement, lien or other encumbrance or other proceedings brought to enforce the rights of the holder(s)thereof, by deed in lieu of foreclosure or by any other method,and as a result any Person succeeds to such interests of City,this Agreement and the rights of Developer hereunder shall continue in full force and effect and shall not be terminated or disturbed except as otherwise expressly permitted by the terms of this Agreement. Section 6.3 Insurance Proceeds.For avoidance of doubt,the First Mortgagee shall have a first-priority right and option to retain, apply and disburse the proceeds of any insurance in accordance with the requirements of its First Mortgage. Developer shall use diligent,good faith efforts to satisfy all conditions of the First Mortgagee to permit release and disbursement of such proceeds towards the costs of 48 Page 855 of 2461 restoration of the Project. Notwithstanding anything to the contrary set forth in this Agreement, Developer shall have the absolute obligation to timely commence and complete restoration of any damaged or destroyed Improvements without regard to the availability of insurance proceeds or the sufficiency thereof. Section 6.4 Third Party Beneficiary.The provisions of this Article VI shall survive any termination of this Agreement. The First Mortgagee and Mezzanine Lender shall be deemed to be third party beneficiaries of this Article VI. Section 6.5 Completion of Construction of the Commercial Retail Project and Park Project. Notwithstanding anything to the contrary contained in this Agreement, from and after the Commercial Release Date and satisfaction of any conditions thereto expressly set forth in this Agreement: (a) the terms,conditions, restrictions, limitations and prohibitions contained in this Article VI shall automatically terminate,extinguish and be of no further force or effect with respect to the Commercial Retail Developer, the Commercial Retail Project and the Park Project,and the terms,conditions,restrictions, limitations and prohibitions set forth in the Master Sublease (provided that such terms and conditions conform in all material respects to this Article VI and/or corresponding provisions of the Marina Lease)shall govern until the Master Sublease terminates or expires, and thereafter the Marina Lease shall govern; (b) the. references to"Developer" in this Article VI shall be deemed to refer solely to the Residential Developer with respect to all financings under which neither the Commercial Retail Developer nor its direct or indirect owners is a borrower(or the Commercial Retail Developer and its direct and indirect owners,as applicable, have been released); and(c)the references to the"Project" and to the"Development Site" in this Article VI shall be deemed to refer solely to the Residential Project and the Residential Parcel provided that such financings are not secured by Mortgages on the Commercial Retail Project or the Park Project (or the Commercial Retail Project and Park Project have been partially released from such Mortgages). ARTICLE VII REMEDIES;EVENTS OF DEFAULT Section 7.1 Default by Developer. Each of the following occurrences shall constitute an "Event of Default"of Developer that shall entitle City to exercise its remedies as set forth in Section 7.2: (a) if Residential Developer defaults under the Purchase and Sale Agreement prior to Closing, and as a result thereof,the City terminates the Purchase and Sale Agreement; (b) if Residential Developer defaults under the City Note and City Mortgage, and as a result thereof,the City accelerates the payment of the City Note; (c) if, at any time prior to the Commercial Release Date, Commercial Retail Developer defaults under the Master Sublease and,as a result thereof,the City terminates the Master Sublease and the Recognition Agreement,as expressly permitted under the terms of the Recognition Agreement; (d) if Developer fails to satisfy all of the Construction Commencement Conditions prior to Commencement of Construction and such failure continues for a period of thirty(30)days after written notice thereof by the City to Developer, following which the City has the right to institute a "stop work" order for all construction on the Development Site until such time as all Construction Commencement Conditions are satisfied; 49 Page 856 of 2461 (e) If Developer fails to obtain the Building Permit on or before the Building Permit Outside Date; (f) if Developer fails to Commence Construction on or before the Construction Commencement Date; (g) if Developer fails, after Commencement of Construction, to cause the Completion of Construction to occur by the Construction Completion Date, provided that no Event of Default will be deemed to exist as long as (i) Developer has Completed Construction of the Commercial Retail Project (excluding the Park Project) in accordance herewith by the Construction Completion Date, (ii) Developer has Completed Construction of the Park Project in accordance herewith by the Park Project Completion Date, (iii) Developer is diligently prosecuting the completion of the.Work for the Residential Project in good faith and (iv) Completion of Construction occurs not later than eight (8) years after satisfaction of the Construction Commencement Conditions; provided further, for the avoidance of doubt, in no event shall Developer Complete Construction of the Residential Project prior to Completion of Construction of the Commercial Retail Project,including the Park Project; (h) if Developer or any Person with a Controlling ownership interest in Developer violates the Acceptable Owner Criteria specified in subparagraph A.3 of Exhibit"A"of this Agreement(other than any such violation by any Persons that have ownership interests in Agreement through any entity that is listed on any national securities exchange), or is a Prohibited Person (other than Persons that have ownership interests in Developer through any entity that is listed on any national securities exchange); provided, however, in the case of any such violation by any Person with an ownership interest in Developer, Developer shall have six (6) months to cure such violation after Developer first becomes aware of such violation; (i) if Developer fails,to maintain or provide evidence of all insurance in compliance in all material respects with Article IX hereof (any lapse in required coverage shall be deemed a failure to comply with Article IX hereof) and such failure continues for a period of ten (10) Business Days from the date of written notice thereof from City; (j) if Developer fails to observe or perform one or more of the other terms, conditions, covenants or agreements of this Agreement not otherwise addressed in this Section 7.1 and such failure continues for a period of 45 days after written notice thereof by City to Developer specifying such failure, unless such failure requires work to be performed, acts to be done, or conditions to be removed which cannot by their nature reasonably be performed, done or removed, as the case may be, within such 45 day period, in which case no Default will be deemed to exist as long as Developer(i)commences curing the same within such 45 day period, (ii)advises the City of the steps being taken by Developer to remedy such failure (which steps shall be reasonably designed to effectuate the cure of such failure in a professional manner) and thereafter,from time to time, upon the City's request, updates the City as to the status of such cure,and(iii)diligently prosecutes such cure to completion; (k) if Developer admits, in writing, that it is generally unable to pay its debts as such debts become due; (I) if Developer makes an assignment for the benefit of creditors; (m) if Developer files a voluntary petition under the Bankruptcy Code or if such petition is filed against Developer and an order for relief is entered,or if Developer files any petition or answer seeking, 50 Page 857 of 2461 consenting to or acquiescing in any reorganization,arrangement,composition,readjustment,liquidation, dissolution or similar relief under the Bankruptcy Code or any other present or future applicable federal, state or other statute or law, or seeks or consent to or acquiesces in or suffers the appointment of any trustee, receiver,custodian,assignee,sequestrator, liquidator or other similar official of Developer,or of all or any substantial part of its properties or of the Development Site or any interest of Developer therein; (n) if within 90 days after the commencement of any proceeding against Developer seeking to have an order for relief entered against it as debtor or to adjudicate it a bankrupt or insolvent, or seeking any reorganization, arrangement, composition, readjustment or adjustment, winding-up, liquidation, dissolution or similar relief under the Bankruptcy Code or any other present or future applicable federal, state or other statute or law of any jurisdiction,domestic or foreign,such proceeding has not been dismissed,or if,within 90 days after the appointment,without the consent or acquiescence of Developer,of any trustee, receiver,custodian, assignee, sequestrator or liquidator of Developer,or of all or any substantial part of its properties or of the Development Site or any interest of Developer therein, such appointment has not been vacated or stayed on appeal or otherwise,or if,within 30 days after the expiration of any such stay,such appointment has not been vacated; (o) if any case, proceeding or other action is commenced or instituted against Developer seeking the issuance of a warrant of attachment,execution or similar process against all or any substantial part of its property,which case, proceeding or other action results in the entry of an order for any such relief which has not been vacated, discharged,stayed or bonded pending Developer's appeal therefrom within 30 days from the entry thereof; (p) if Developer fails to diligently prosecute completion of the Work in good faith,subject to City Delays and Unavoidable Delays, if applicable, and each in accordance herewith, and such failure continues for a period of thirty(30) days after written notice thereof by the City to Developer specifying such failure; (q) if this Agreement or Developer's interest herein is assigned, transferred, mortgaged, pledged or encumbered in any manner without compliance with the provisions of this Agreement, or if Developer attempts to consummate any Transfer (by entering into an agreement to sell or assign its interest in this Agreement, Developer or the Project which is not conditioned on satisfying the Transfer provisions of this Agreement, or by agreeing to a Transfer without complying with the provisions governing same in this Agreement), except as expressly permitted herein, and fails to correct such Transfer or such other default under this clause(q)within thirty(30)days after receiving notice from City; (r) if a levy under execution or attachment is made against Developer or its property and such execution or attachment has not been vacated or removed by court order, bonding or otherwise within a period of 30 days after such execution of attachment; (s) failure to comply with any of Developer's indemnification obligations under this Agreement and such failure is not cured within 30 days after written notice thereof by the City to Developer specifying such failure, unless such failure cannot be cured by the payment of money and requires additional action to be performed by Developer which cannot by its nature reasonably be performed within such initial 30 day period, in which case no Event of Default will be deemed to exist as long as Developer(i) commences curing the same within the initial 30 day period, (ii)advises the City of the steps being taken by Developer to remedy such failure (which steps shall be reasonably designed to effectuate the cure of such failure in a professional manner) and thereafter, upon the City's request, 51 Page 858 of 2461 updates the City as to the status of such cure,and(iii)diligently and continuously prosecutes such cure to completion in good faith within a reasonable period and, with respect to Developer's indemnification obligations for any Lawsuit or Marina Lawsuit, such reasonable period shall not exceed an additional 90 days,provided that,if Developer fails to remedy such failure with respect to any Lawsuit or Marina Lawsuit within the initial 30 day cure period set forth above, the City, may at its option and discretion, and at Developer's cost and expense, intervene in such Lawsuit or Marina Lawsuit and take such action as reasonably deemed necessary by the City to avoid or mitigate any adverse action or ruling, including a default judgment in the Lawsuit or Marina Lawsuit, as applicable and the City shall have no liability to Developer, Existing Marina Lessee or Marina Lessee in connection therewith. The terms of this provision shall be incorporated into the Marina Lease and, as applicable, the Existing Marina Lease. Any action taken by this City pursuant to this Section 7.1(s) shall not be deemed to modify any obligations of Developer, Marina Lessee or Existing Marina Lessee or be deemed to cure any default by any such Person under this Agreement or, as applicable, the Marina Lease or Existing Marina Lease. Marina Lessee and Existing Marina Lessee each hereby joins in and consents to this Agreement for purposes of acknowledging and confirming its agreement to the terms of this Section 7.1(s) and to evidence its agreement to enter into the amendments to the Marina Lease and Existing Marina Lease, as applicable, contemplated by this Section 7.1(s). In no event shall the time period for curing an Event of Default constitute an extension of the Construction Completion Date or a waiver of any of the City's rights or remedies hereunder for an Event of Default which is not cured as aforesaid. Section 7.2 Remedies for Developer's Default. (a) If an Event of Default occurs hereunder, the City may elect any one or more of the following remedies,without limitation: (i) if the Event of Default is a Material Event of Default,terminate this Agreement; (ii) an action for specific performance and injunctive relief to enforce the terms, covenants,conditions and other provisions of this Agreement against Developer as a result of or arising out of such Event of Default;or (iii) recover damages for Developer's breach of this Agreement; or (iv) in the case of an Event of Default under Section 7.1(e), Developer shall pay liquidated damages of$1,000 per calendar day from the Building Permit Outside Date through the actual date on which Developer obtains the Building Permit,as compensation to the City for failure to obtain the Building Permit by the Building Permit Outside Date and not as a penalty(the"Building Permit Liquidated Damages"),which shall be paid on or before the Construction Commencement Date and as a condition to the issuance of the Building Permit and Commencement of Construction;or (v) in the case of an Event of Default under Section 7.1(g) for failure to Complete Construction of(x) the Commercial Retail Project, excluding the Park Project, prior to the Construction Completion Date, Developer shall pay liquidated damages of $1,000 per calendar day from the Construction Completion Date through the actual date on which Developer Completes Construction of the Commercial Retail Project, excluding the Park Project, (y) the Park Project prior to the Park Project Completion Date, Developer shall pay liquidated damages of $1,000 per calendar day from the Park Project Completion Date through the actual date on which Developer Completes Construction of the Park 52 Page 859 of 2461 Project and (z) the Residential Project by that date that is twelve (12) months after the Construction Completion Date, Developer shall pay liquidated damages of$1,000 per calendar day from the date that is twelve(12)months after the Construction Completion Date through the actual date on which Developer Completes Construction of the Residential Project, with the foregoing as compensation to the City for delayed Completion of Construction and not as a penalty (the foregoing, collectively, the "Completion Liquidated Damages") which shall be paid on or before, and as a condition to, the issuance of any Certificate of Occupancy for the Project or any portion thereof. (b) The parties hereby agree and acknowledge that the liquidated damages described in Sections 7.2(a)(iv)and 7.2(a)(v) above are not a penalty and are reasonable in the light of the anticipated or actual losses to be incurred by the City due to Developer's failure to meet the milestones provided herein. In the event a court of competent jurisdiction determines that any liquidated damages herein are unenforceable, notwithstanding Developer's agreement herein that such amounts are fair and reasonable, Developer shall not be relieved of its obligations to the City for the actual damages resulting from Developer's failure to meet the milestones provided herein. The City's election of a right or remedy hereunder with respect to any one or more Events of Default shall not limit or otherwise affect the City's right to elect any of the remedies available to it hereunder or as provided by law and/or in equity with respect to that or any other Event of Default. Notwithstanding anything to the contrary contained in this Agreement, any Event of Default hereunder shall not constitute a default or event of default under the Master Sublease or the Recognition Agreement except with respect to a Material Event of Default that occurs prior to the Commercial Release Date. (c) If this Agreement is terminated prior to Closing as provided in Section 7.2(a)(i) hereof,the Purchase and Sale Agreement conclusively and automatically shall be deemed terminated and the City will have the right to exercise all of its rights and remedies thereunder,including to receive or retain all or a portion of the Initial Purchase Price as set forth in the Purchase and Sale Agreement. (d) Upon any termination of this Agreement as a result of a Material Event of Default prior to the Vesting Date, the City shall have all rights and remedies under, and the parties shall proceed in accordance with, Section 2.10(b)(v) hereof, and Developer shall quit and peaceably surrender the Development Site (which includes all improvements thereon, subject to Developer's demolition obligations hereunder), and all property related thereto in its possession to the City, and-all rights and interest of Developer created under this Agreement in and to the Development Site and the Project (in each case, which includes all improvements thereon, subject to Developer's demolition obligations hereunder) and every part thereof shall cease and terminate and the Developer shall re-convey the Residential Parcel to the City. (e) Upon any termination of this Agreement after the Vesting Date(whether pursuant to this Section 7.2 or otherwise),and the City shall have all rights and remedies under,and parties shall proceed in accordance with, Section 2.10(b)(vi) hereof and Developer shall quit and peaceably surrender the Commercial Retail Premises(which includes all improvements thereon,subject to Developer's demolition obligations hereunder) and all property related thereto in its possession to the City, and all rights and interest of Developer created under this Agreement in and to the Commercial Retail Premises and the Commercial Retail Project(in each case,which includes all improvements thereon,subject to Developer's demolition obligations hereunder) and every part thereof shall cease and terminate. Nothing contained in this Section 7.2(e) is intended to modify or amend Developer's rights and interest under the Master Sublease to the extent the Master Sublease is in effect but the Developer's rights and interests under the Master Sublease shall be subordinate to the ARF Easements granted in the Alternate Easement 53 Page 860 of 2461 Agreement. For the avoidance of doubt, upon the occurrence of the Vesting Date, Developer shall have no obligation to reconvey the Residential Parcel to the City. (f) If Developer fails to so surrender the Development Site or Commercial Retail Premises,as applicable, in accordance with Sections 7.2(d)or(e) above,the City,without notice,subject to the rights of Marina Lessee and the Commercial Retail Developer (as sublessee thereunder), may re-enter and repossess Developer's interest in the Development Site or Commercial Retail Premises (including any Existing Improvements, Commercial Retail Improvements or Improvements), as applicable, without process of law,subject to applicable Governmental Requirements. (g) In the event the City elects to terminate this Agreement after a Material Event of Default and such termination is stayed by order of any court having jurisdiction of any matter relating to this Agreement,or by any federal or state statute,then following the expiration of any such stay,the City shall have the right,at its election,to terminate this Agreement with five(5)days'written notice to Developer, Developer as debtor in possession or if a trustee has been appointed,to such trustee. (h) As an additional inducement to and material consideration for City agreeing to this Agreement, Developer agrees that in the event a Bankruptcy or Judicial Action (as defined herein) is commenced which subjects the City to any stay in the exercise of the City's rights and remedies under this Agreement, including the automatic stay imposed by section 362 of the United States Bankruptcy Code (individually and collectively, "21y"),then, provided the Stay is lifted and released as to all Mortgagees and Mezzanine Lenders(to the extent the Mortgage loan documents and Mezzanine Loan documents,as applicable, include Stay relief provisions), Developer irrevocably consents and agrees to the Stay being lifted and released against City, and City shall thereafter be entitled to exercise all of its rights and remedies against Developer under this Agreement. Developer acknowledges that it is knowingly, voluntarily, and intentionally waiving its rights to any Stay and agrees that the benefits provided to Developer under the terms of this Agreement are valuable consideration for such waiver. As used in this Section,the term "Bankruptcy or Judicial Action"shall mean any voluntary or involuntary case filed by or against Developer under the Bankruptcy Code, or any voluntary or involuntary petition in composition, readjustment,liquidation,or dissolution,or any state and federal bankruptcy law action filed by or against Developer,any action where Developer is adjudicated as bankrupt or insolvent,any action for dissolution of Developer or any action in furtherance of any of the foregoing,or any other action,case,or proceeding that has the effect of staying(or in which a Stay is being obtained against)the enforcement by the City of its rights and remedies under this Agreement. (i) Notwithstanding the foregoing, in the event that Developer seeks to assume and assign this Agreement pursuant to section 365 of the Bankruptcy Code it will be required to provide to the City adequate assurance of future performance which shall consist of evidence that such assignee satisfies the "Acceptable Owner Criteria"set forth in Exhibit"A". (j) Notwithstanding anything to the contrary contained in this Agreement, in no event shall the City have the right to terminate this Agreement unless the Event of Default is a Material Event of Default. The term"Material Event of Default" means: (I) if Residential Developer defaults under the Purchase and Sale Agreement by failing to pay any portion of the deposits and/or the Purchase Price as and when due thereunder and such failure continues beyond any applicable notice and cure period set forth in the Purchase and Sale Agreement; 54 Page 861 of 2461 (ii) if Residential Developer defaults in the payment of any principal or interest as and when due under the City Note and such failure continues beyond any applicable notice and cure period set forth in the City Note; (iii) an Event of Default under Section 7.1(f); (iv) if Developer fails,after Commencement of Construction,to cause the Completion of Construction to occur by that date that is eight (8) years after satisfaction of the Construction Commencement Conditions; (v) an Event of Default under Section 7.1(h); (vi) an Event of Default under Section 7.1(q);and (vii) an Event of Default under Section 7.1(s). (k) The City hereby acknowledges and agrees that its sole and exclusive remedy for any Event of Default by the Developer under this Agreement that is not a Material Event of Default shall be limited to liquidated damages as set forth herein, an action for damages and/or an action for specific performance. (I) Notwithstanding anything to the contrary contained in this Agreement, in no event whatsoever shall the Developer be liable to the City for any indirect, special, incidental, consequential, punitive, economic damages {including, without limitation, diminution of property value) lost profits or similar damages,whether or not foreseeable or advised of the possibility of the same,in connection with, arising from or as a result of any Event of Default by the Developer under this Agreement; provided that the foregoing does not and is not intended to modify or amend the Developer's obligation to pay any liquidated damages as set forth herein. (m) Notwithstanding anything to the contrary contained in this Agreement, including references to the joint and several nature of the liability of Residential Developer and Commercial Retail Developer,in no event shall the Commercial Retail Developer be liable to the City with respect to defaults, Events of Default or Material Events of Default first arising from and after the Commercial Release Date and the satisfaction of any conditions thereto expressly set forth in this Agreement. Section 7.3 Default by the City. An event of default by the City shall be deemed to have occurred under this Agreement if the City fails to perform any obligation or fulfill any covenant or agreement of the City set forth in this Agreement and such failure shall continue for thirty (30) days following the City's receipt of written notice of the non-performance; provided, however,the City shall not be in default of this Agreement: (a) if the City provides Developer with a written response within said thirty (30) day period indicating the status of the City's resolution of the breach and providing for a mutually agreeable schedule to correct same;or (b) with respect to any breach that is capable of being curedbut that cannot reasonably be cured within said thirty(30)day period,if the City commences to cure such breach within such thirty(30) day period (or as soon thereafter as is reasonably possible) and diligently continues to cure the breach until completion, but no longer than a total of one hundred twenty(120)days. 55 Page 862 of 2461 If such an event of default by the City occurs hereunder,the Developer shall have all rights and remedies available to it under this Agreement, at law and/or equity, including an action for specific performance and injunctive relief to enforce the terms, covenants,conditions and other provisions of this Agreement against the City as a result of or arising out of such event of default. The Developer's election of a right or remedy under this Agreement, at law and/or in equity,with respect to any event of default by the City shall not limit or otherwise affect the Developer's right to elect any other right or remedy available to it under this Agreement,at law and/or in equity with respect to the same or any other event of default by the City. Notwithstanding anything to the contrary contained in this Agreement, in no event whatsoever shall the City be liable to Developer for any indirect,special,incidental,consequential,punitive,economic damages (including, without limitation, diminution of property value) lost profits or similar damages, whether or not foreseeable or advised of the possibility of the same,in connection with,arising from or as a result of any event of default by the City under this Agreement. Section 7.4 Unavoidable Delay;Third Party Challenges;Termination Rights. (a) Neither the City nor Developer,as the case may be, shall be considered in breach of or in default of any of its non-monetary obligations,including suspension of construction activities, hereunder by reason of Unavoidable Delay;provided that the Party claiming such Unavoidable Delay delivers written notice to the other Party of such Unavoidable Delay within thirty(30)days after first becoming aware of the commencement of such Unavoidable Delay, which notice shall describe in reasonable detail the events giving rise to the Unavoidable Delay; and such Party shall diligently attempt to remove, resolve or otherwise seek to mitigate such delay and keep the other Party advised with respect thereto. Time is of the essence with respect to this provision, and any failure by a Party to timely deliver such notice of an Unavoidable Delay shall be deemed a waiver of such Party's right to delay performance as a result of such Unavoidable Delay. With respect to any Unavoidable Delay that is an"Act of God"(e.g.,a hurricane)that is of such an extent that reasonable methods of communication or access are not available, then notwithstanding Section 11.5 of this Agreement to the contrary, notice by Developer shall be deemed sufficiently given to City if transmitted via electronic transmission to the City Manager and City Attorney; provided that as soon as reasonably practicable following the occurrence of such "Act of God" a copy of such notice is delivered pursuant to the terms of Section 11.5 hereof. (b) Subject to the notice requirements of Section 7.4(a)above, all time periods set forth in this Agreement shall be tolled due to Unavoidable Delay,during the pendency of any Lawsuit and during the pendency of any Marina Lawsuit, provided that tolling with respect to Lawsuits and Marina Lawsuits shall not exceed a period of forty-two (42) months in the aggregate; provided, however, that the Construction Completion Date shall not be tolled for any Lawsuit or any Marina Lawsuit. In the event of any Lawsuit instituted by any Person that is not a City Party, Developer shall defend any such Lawsuit at its sole cost and expense using legal counsel reasonably acceptable to the City. Developer shall further indemnify and hold the City and the City Parties harmless from and against all Claims of any and every kind arising out of,relating to or resulting from any such Lawsuit instituted by any Person that is not a City Party. This paragraph shall survive the expiration or any earlier termination of this Agreement. (c) If a Lawsuit or Marina Lawsuit instituted by any Person that is not a City Party is still pending more than forty-two (42) months after it has been commenced, then Developer, at its option, may from and after the expiration of such forty-two(42) month period and while the Lawsuit or Marina Lawsuit remains unresolved, elect to terminate this Agreement by delivering a written notice of 56 Page 863 of 2461 termination to the City, whereupon this Agreement shall be terminated, and the City and the Developer shall have no further obligation and/or liability to each other hereunder, except as otherwise expressly provided herein. If Developer,after using diligent good faith efforts,has been unable to obtain the Project Approvals within fifty-four (54) months after the Effective Date (as such period may be tolled in accordance with this Section 7.4(c)),then either Party shall have the right to terminate this Agreement. If either Party terminates this Agreement in accordance with this Section 7.4(c) prior to the Closing, the Purchase and Sale Agreement shall automatically and conclusively be terminated, the deposits thereunder shall be returned to the Residential Developer and the City and the Residential Developer shall be released from their respective obligations thereunder. If either Party terminates this Agreement in accordance with this Section 7.4(c)after Closing but prior to the Vesting Date,the City shall receive and/or retain that portion of the Initial Purchase Price paid to the City,the Residential Developer will re-convey the Residential Parcel to the City, and upon such re-conveyance, the City Note and City Mortgage shall automatically terminate, extinguish and be of no further force or effect, the City shall satisfy the City Mortgage of record at Residential Developer's sole cost and expense,and if there has been no successful challenge to the Marina Lease and the Marina Lease is then in effect, the City shall enter into an amendment of the Marina Lease with the Marina Lessee to include the portion of the Residential Parcel up to a height of fifty(50) feet NGVD within the premises demised under the Marina Lease and the City may credit a portion of such retained Initial Purchase Price against the obligations of the Marina Lessee as set forth in the Marina Lease,or if there has been a successful challenge to the Marina Lease and the Marina Lease is not then in effect,then the Existing Marina Lessee shall receive a rent credit as further described in Section 2.10(b)(ii)above. (d) Developer shall have the right to terminate this Agreement prior to the Commencement of Construction due to: (i)changes to the Project Concept Plan or Approved Plans required by the City's Design Review Board,Planning Board or any other Governmental Authority(including the City)that render the Project economically unfeasible in the reasonable business judgment of Developer; or(ii)the Project cannot meet the Concurrency Requirements,or the costs of concurrency mitigation are,in the reasonable business judgment of Developer,economically unfeasible. Following a termination of this Agreement by Developer in accordance with this Section 7.4(d) prior to Closing,the Purchase and Sale Agreement shall automatically and conclusively be terminated, the deposits thereunder shall be returned to the Residential Developer and the City and the Residential Developer shall be released from their respective obligations thereunder. Following a termination of this Agreement by Developer in accordance with this Section 7.4(d)after Closing but prior to the Vesting Date,the City shall receive and/or retain that portion of the Initial Purchase Price paid to the City,the Residential Developer will re-convey the Residential Parcel to the City,and upon such re-conveyance,the City Note and City Mortgage shall automatically terminate, extinguish and be of no further force or effect, the City shall satisfy the City Mortgage of record at Residential Developer's sole cost and expense,and if there has been no successful challenge to the Marina Lease and the Marina Lease is then in effect,the City shall enter into an amendment to the Marina Lease with the Marina Lessee to include the portion of the Residential Parcel up to a height of fifty (50) feet NGVD within the premises demised under the Marina Lease and the City may credit a portion of such retained Initial Purchase Price against the obligations of the Marina Lessee as set forth in the Marina Lease,or if there has been a successful challenge to the Marina Lease and the Marina Lease is not then in effect,then the Existing Marina Lessee shall receive a rent credit as further described in Section 2.1(b)(ii) above. (e) Notwithstanding anything to the contrary contained in this Agreement, following the occurrence of the Vesting Date,Developer shall have no obligation to re-convey the Residential Parcel to the City. As described in Section 2.10(b) above, Residential Developer acknowledges and agrees that if 57 Page 864 of 2461 the City terminates this Agreement as a result of a Material Event of Default after the occurrence of the Vesting Date, the Marina Lessee will construct the Alternate Replacement Facilities in accordance with the Marina Lease and pursuant to the easements and rights granted by Residential Developer to Marina Lessee over and upon the Residential Parcel to construct the Alternate Replacement Facilities pursuant to the Reciprocal Easement Agreement or the Alternate Easement Agreement, as applicable. Residential Developer acknowledges and agrees that such easements and rights granted by Residential Developer to the Marina Lessee over and upon the Residential Parcel are broad in scope and materially(if not entirely) restrict and impair Residential Developer's ability to construct a project on the Residential Parcel and Residential Developer hereby releases the City and Marina Lessee from any and all Claims of Residential Developer or any successors and/or assigns of Residential Developer in connection with any of the foregoing. (f) If the Marina Lease is not signed by Marina Lessee and effective on or before March 15, 2021 or the term thereof does not commence as of January 1,2022,then either Party shall have the right to terminate this Agreement. If either Party terminates this Agreement in accordance with this Section 7.4(f)prior to the Closing,the Purchase and Sale Agreement shall be terminated,and the City shall retain the First Deposit and,to the extent paid,the Additional At Risk Deposit(each,as defined in the Purchase Agreement),as agreed and liquidated damages. (g) Marina Lessee and Existing Marina Lessee each hereby joins in and consents to this Agreement for purposes of acknowledging and confirming its agreement to the terms of this Section 7.4 and to evidence its agreement to enter into the amendments to the Marina Lease and Existing Marina Lease,as applicable,contemplated by this Section 7.4. Section 7.5 Remedies Cumulative;Waiver.The rights and remedies of the Parties to this Agreement, whether provided by law or by this Agreement,shall be cumulative and concurrent, and the exercise by either Party of any one or more of such remedies shall not preclude the exercise by it, at the same or different times,of any other such remedies for the same default or breach, or of any of its remedies for any other default or breach by the other Party. No waiver of any default or Event of Default hereunder shall extend to or affect any subsequent or other default or Event of Default then existing, or impair any rights, powers or remedies consequent thereon, and no delay or omission of any Party to exercise any right, power or remedy shall be construed to waive any such default or Event of Default or to constitute acquiescence thereof. Section 7.6 Intentionally Deleted. Section 7.7 Survival of Reciprocal Easement Agreement. No termination or expiration of this Agreement after the Closing shall affect or impair the Reciprocal Easement Agreement, which shall continue to encumber the Development Site with respect to any of the City's and Developer's successors in accordance with the terms of the Reciprocal Easement Agreement. Section 7.8 Dispute Resolution. (a) City and Developer agree that any dispute, claim or controversy between them relating to or arising under this Agreement("Dispute")will first be submitted, by written notice,to a designated representative of each of the City and Developer who will meet at City's place of business or other mutually agreeable location, or by teleconference, and confer in an effort to resolve such dispute. Any decision of the representatives will be final and binding on the Parties. In the event the representatives are unable to resolve any dispute within ten (10) days after submission to them, either Party may refer 58 Page 865.of 2461 the dispute to mediation. The exclusive venue for any Dispute not resolved by mediation shall be any state or federal court of competent jurisdiction sitting in or for Miami-Dade County, Florida, except for Development Disputes, which shall be resolved in accordance with Section 7.9 and disputes related to City's disapproval of a Proposed Major Transferee as an Acceptable Owner or whether Developer,Existing Marina Lessee and/or Marina Lessee has diligently pursued and exhausted all appeals in any Marina Lawsuit in good faith through the applicable Court of Appeal, which will be resolved in accordance with Section 7.10. (b) TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE CITY AND DEVELOPER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER OF THEM OR THEIR HEIRS, PERSONAL REPRESENTATIVES, SUCCESSORS OR ASSIGNS MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY. THIS PROVISION IS A MATERIAL INDUCEMENTTO THE PARTIES ENTERING INTO THIS AGREEMENT. Section 7.9 Expedited Arbitration of Development Disputes. (a) If Developer or City asserts that a Development Dispute has arisen, such asserting Party shall give prompt written notice thereof to the other Party, and such Development Dispute shall be submitted to binding arbitration by the Development Arbitrator in accordance with this Section 7.9. (b) The Parties shall cooperate to select an independent, neutral, professional arbitrator experienced in the resolution of construction claims and associated subject matter having at least ten(10) years of residential and retail mixed use development or construction experience in the Miami-Dade County area to serve as the arbitrator(the "Development Arbitrator"). If the Parties cannot agree on a single Development Arbitrator, then each Party shall select an arbitrator with such development or construction experience,who shall jointly select a third arbitrator with such development or construction experience and the three arbitrators shall collectively constitute the Development Arbitrator. (c) The Development Arbitrator shall, no later than five (5) Business Days after being selected, hold a preliminary, informal meeting with City and Developer in an attempt to mediate such Development Dispute. If such Development Dispute is not resolved at such meeting, the Development Arbitrator shall at such meeting establish a date (the "Hearing Date"), not earlier than five (5) Business Days after such meeting nor later than twenty(20)days after such meeting for a hearing(a"Hearing")to be held in accordance with this Agreement to resolve such Development Dispute. (d) Developer and City each shall have the right to make one (1)written submission to the Development Arbitrator prior to the Hearing. Such submission shall be received by the Development Arbitrator and the other Party not later than two(2)Business Days prior to the Hearing Date.The Parties agree that no discovery(as the term is commonly construed in litigation proceedings)wilt be permitted and agree that neither Party nor the Development Arbitrator shall have discovery rights in connection with a Development Dispute. (e) The Hearing shall be conducted by the Development Arbitrator. It is the intention of the Parties that the Hearing on a Development Dispute shall be conducted in an informal and expeditious manner. No transcript or recording shall be made. Each Party shall have the opportunity to make a brief statement and to present documentary and other support for its position, which may include the testimony of not more than four(4) individuals,two(2)of whom may be outside experts.There shall be 59 Page 866 of 2461 no presumption in favor of either Party's position. Any procedural matter not covered herein shall be governed by procedures mutually agreed upon by the Parties,or if they are unable to agree,in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association (as amended hereby). {f) The Hearing shall be held in a location selected by the Development Arbitrator in Miami- Dade County, Florida. Provided that the Development Arbitrator is accompanied by representatives of both Developer and City, the Development Arbitrator may, at its option, visit the Development Site to make an independent review in connection with any Development Dispute. (g) The Development Arbitrator, in rendering its decision with regard to any Development Dispute, shall take into account and at a minimum consider the following factors,which shall be used to guide its decision: (i) City does not have any Approval rights with respect to the matter of interior design and decor of the Project except to the extent the same is reflected in the Approved Plans or Mandatory Project Elements; (ii) the mutual goal of Developer and City is that costs in excess of the Budgeted Improvement Costs should be avoided or minimized unless proposed by Developer and for which Developer has agreed to provide adequate funds; (iii) the mutual goal of Developer and City is that the construction of the Project be completed and the Completion of Construction occur by the Construction Completion Date; (iv) the Project must comply with all Governmental Requirements; and (v) the magnitude of the modification to the Approved Plans. (h) Pending resolution of the Development Dispute, Developer may not implement the matter which is the subject of such Development Dispute. (i) The Development Arbitrator shall render a decision, in writing, as to any Development Dispute not later than two (2) Business Days following the conclusion of the Hearing regarding such Development Dispute and shall provide a brief written basis for its decision not later than five(5)Business Days thereafter. Such decision of the Development Arbitrator shall be rendered by(a)the decision of the single Development Arbitrator, (b) the decision of two of the arbitrators comprising the Development Arbitrator,if two are able to agree,(c)the decision of the third arbitrator appointed by each of the Parties' arbitrators, if no two of the three arbitrators are able to agree within such period, or (d) agreement between the Parties prior to and independently of the decision of the Development Arbitrator. As to each Development Dispute, the Development Arbitrator's decision shall be limited to resolution of the Development Dispute in question, and the Development Arbitrator shall have no right whatsoever to impose or grant to either Party any remedy other than a decision as to: (i) whether the plans and specifications to be submitted to the Design Review Board conform in all material respects to the Project Concept Plan and include the Mandatory Project Elements (in each case, except to the extent the City Commission otherwise approves); (ii) whether the Plans and Specifications are consistent with the Approved DRB Plans; (iii) whether a modification to the Project is a substantial deviation from the Approved Plans or a Prohibited Project Change requiring City's Approval pursuant to Section 2.3;(iv)any contention that City has unreasonably failed to Approve any modifications to the Approved Plans in 60 Page 867 of 2461 accordance with this Agreement; (v) any contention that the City has unreasonably failed to Approve a General Contractor for the Project in accordance with Section 2.9(b); or (vi) any disagreement as to permitted delays in the Commencement of Construction Date or the Construction Completion Date or (vii) after Commencement of Construction, any disagreement as to whether Developer is diligently prosecuting the Work in good faith. (j) The decision of the Development Arbitrator shall be final and binding on the Parties for all purposes and may be entered in any court of competent jurisdiction. (k) If any matter submitted to the Development Arbitrator hereunder is settled by agreement between the Parties prior to,or independently of,the final determination of the Development Arbitrator, any and all expenses of such binding determination (including fees of the Development Arbitrator)will be shared equally by the Parties; and the expense of such binding determination resolved by final determination of the Development Arbitrator(including fees of the Development Arbitrator)will be borne by the Party against whom such determination has been concluded. Section 7.10 Disputes Regarding Disapproval of a Proposed Transferee. (a) If the City Manager determines that a Proposed Major Transferee does not satisfy the definition of an Acceptable Owner and the Acceptable Owner Criteria pursuant to Exhibit"A" attached hereto, and Developer disagrees, and if the matter is not resolved by the designated representatives of the City and Developer as provided in Section 7.8(a) above, then solely with respect to any such determination made by the City Manager, Developer, as its sole remedy, may submit such matter to a panel of experts for a binding determination in accordance with this Section 7.10 (an "Arbitrator"). For the avoidance of doubt, in the event the City Manager exercises his or her right to seek the City Commission's direction or Approval of a Proposed Major Transferee, Developer shall not have the right to submit the City Commission's determination or disapproval of a Proposed Major Transferee to arbitration pursuant to this Section 7.10, but the City Commission shall be subject to the same time period and standards of judgment as would apply to the City Manager as provided in Exhibit"A". (b) If Developer elects to proceed with an Arbitrator in accordance with this Section 7.10,the determination of whether a Proposed Major Transferee is an Acceptable Owner will be made by (a) an expert selected jointly by the City and Developer, or (b) if the City and Developer fail to agree upon a single expert, by an expert selected by the City, an expert selected by Developer and a third expert appointed by the experts selected by the Parties. Any Arbitrator or expert panelist hereunder will each have at least ten(10)years of professional experience in the commercial real estate development industry as a legal or other consultant. The Parties agree that no discovery(as the term is commonly construed in litigation proceedings) will be permitted and agree that neither Party nor the Arbitrator shall have discovery rights in connection with a Dispute hereunder. The proceeding before the Arbitrator shall be conducted in an informal and expeditious manner. No transcript or recording shall be made. Each Party shall have the opportunity to make a brief statement and to present documentary and other support for its position,which may include the testimony of not more than four(4)individuals,two(2)of whom may be outside experts. There shall be no presumption in favor of either Party's position. Any procedural matter not covered herein shall be governed by procedures mutually agreed upon by the Parties, or if they are unable to agree,in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association(as amended hereby). 61 Page 868 of 2461 (c) The matter submitted to the Arbitrator will be conclusively determined within thirty(30) days of the appointment of the last Arbitrator by (a)the decision of the single expert, (b)the decision of any two of the three experts,if two are able to agree, (c)the decision of the third expert, if no two of the three experts are able to agree within such period, or (d) agreement between the Parties prior to and independently of the decision of the Arbitrator. (d) With respect to whether a Proposed Major Transferee satisfies the definition of an Acceptable Owner and the Acceptable Owner Criteria pursuant to Exhibit "A", the Arbitrator will determine that such Proposed Major Transferee either satisfies such definition and criteria or fails to satisfy such definition and criteria. If any matter submitted to the Arbitrator hereunder is settled by agreement between the Parties prior to, and independently of, the final determination of the Arbitrator, any and all expenses of such binding determination(including fees of the Arbitrator)will be shared equally by the Parties; and the expense of such binding determination resolved by final determination of the Arbitrator(including fees of the Arbitrator)will be borne by the Party against whom such determination has been concluded. Section 7.11. Disputes Regarding Diligent Prosecution. (a) Any dispute arising under this Agreement with respect to whether Developer, Existing Marina Lessee and/or Marina Lessee has diligently pursued and exhausted all appeals of any Marina Lawsuit in good faith through the applicable Court of Appeal (a "Prosecution Dispute") will first be submitted, by written notice ("Notice of Dispute"), to a designated representative of the City and a designated representative of Developer who will meet at the City's place of business or other mutually agreeable location,or by teleconference,and confer in an effort to resolve such Prosecution Dispute. Any decision of the representatives will be final and binding on the Parties. In the event the representatives are unable to resolve any Prosecution Dispute within ten (10) days after receipt of the Notice of Dispute, then Developer, as its sole remedy, may submit such matter to JAMS Miami Center for resolution on an expedited basis without any pre-hearing discovery before an arbitrator(the "Neutral"). (b) If Developer elects to proceed with a Neutral in accordance with Section 7.11(a) the determination will be made by(i)an expert selected jointly by the City and Developer from the panel of Neutrals at Jams Miami Center,or(ii) if the City and Developer fail to agree upon a Neutral, by an expert selected by the City from the panel of Neutrals at Jams Miami Center, a Neutral selected by Developer from the panel of Neutrals at Jams Miami Center and a third expert appointed by the Neutrals selected by the parties. Any Neutral or expert panelist hereunder will be a certified mediator with at least ten(10) years of professional experience litigating commercial contract disputes. The parties agree that no discovery (as the term is commonly construed in litigation proceedings) will be permitted and agree that neither party nor the Neutral shall have discovery rights in connection with a Prosecution Dispute hereunder. The proceeding before the Neutral shall be conducted in an informal and expeditious manner. No transcript or recording shall be made. Each party shall have the opportunity to make a brief statement and to present documentary and other support for its position, which may include the testimony of not more than four(4)individuals,two(2)of whom may be outside experts. There shall be no presumption in favor of either party's position. Any procedural matter not covered herein shall be governed by procedures mutually agreed upon by the Parties,or if they are unable to agree,in accordance with the JAMS Expedited Arbitration Procedures(as amended hereby). (c) The matter submitted to the Neutral will be conclusively determined within thirty (30) days of the appointment of the last Neutral by(i)the decision of the single mutually agreed Neutral, (ii) 62 Page 869 of 2461 the decision of any two of the three selected Neutrals, if two are able to agree, (iii) the decision of the third expert,if no two of the three experts are able to agree within such period,or(iii)agreement between the parties prior to and independently of the decision of the Neutral. (d) The Neutral will determine that Developer,Marina Lessee, Existing Marina Lessee and/or their respective affiliates either did proceed diligently and in good faith to defend a Lawsuit and/or Marina Lawsuit, as applicable, including the exhaustion of all appeals, or did not proceed diligently and in good faith to defend a Lawsuit and/or Marina Lawsuit,as applicable, including the exhaustion of all appeals. If any matter submitted to the Neutral hereunder is settled by agreement between the parties prior to,and independently of, the final determination of the Neutral, any and ail expenses of such binding determination,(including fees of the Neutral)will be shared equally by the parties;otherwise,the expense of such binding determination resolved by final determination of the Neutral (including fees of the Neutral) will be borne by the party against whom such determination has been concluded. ARTICLE VIII PROTECTION AGAINST MECHANICS'LIENS AND OTHER CLAIMS;INDEMNIFICATION Section 8.1 Developer's Duty to Keep Proiect Free of Liens. (a) Developer shall not create,or cause tobe created,or,with respect to work performed by or on behalf of Developer,suffer to exist any lien,encumbrance or charge upon the right,title and interest of the City in the Development Site or any part thereof or appurtenance thereto, or, in connection therewith, any lien,encumbrance or charge upon any assets of, or funds to be appropriated to,the City. Nothing contained in this Agreement shall be deemed or construed to constitute the consent or request of the City, express or by implication or otherwise, to any contractor, subcontractor, laborer or materialman for the performance of any labor or the furnishing of any materials for any specific improvement of,alteration to,or repair of the Project, or any part thereof, nor as giving Developer,any Mortgagee or any other Person any right,power or authority to contract for,or permit the rendering of, any services or the furnishing of materials that would give rise to the filing of any lien,mortgage or other encumbrance against City's interest in the Development Site,or any part thereof,or against assets of the City,or City's interest in any monetary obligations of Developer as defined in this Agreement. (b) Notice is hereby given, and Developer shall cause all construction agreements entered into between Developer and the General Contractor or other contractor in privity with Developer or subcontractor in privity with the General Contractor or any other subcontractor to provide that: (i) City shall not be liable for any work performed or to be performed at the Project or any part thereof for or on behalf of the Developer, any Mortgagee, or any other Person or for any materials furnished or to be furnished to the Project,or any part thereof,for any of the foregoing;and (ii) no mechanic's, laborer's,vendor's, materialman's or other similar statutory lien for such work or materials shall be attached to or affect City's interest in the Development Site, or any part thereof, or any assets of, or funds to be appropriated to,the City. Section 8.2 Discharging and Contesting Liens. If any such lien as described in Section 8.1 is filed against the City's interest in the Development Site or any part thereof,or if any public improvement lien 63 Page 870 of 2461 created,or caused or,with respect to work performed by or on behalf of Developer,suffered to be created by Developer shall be filed against any assets of,or funds appropriated to,the City,Developer shall,within thirty (30) days after Developer receives notice of the filing of such mechanic's, laborer's, vendor's, materialman's or similar statutory lien or public improvement lien,cause it to be discharged of record by payment, deposit, bond, order of a court of competent jurisdiction or otherwise. If Developer desires to contest any such lien, it shall notify the City of its intention to do so within thirty(30)days after Developer has notice of the filing of such lien. In such case, Developer,at Developer's sole cost and expense,shall furnish a cash deposit or surety bond in an amount sufficient to pay such lien and any cost (including interest and penalties), liability or damage arising out of such contest. The lien, if Developer timely provides the bond described above,shall not be an Event of Default hereunder until thirty(30)days after the final determination of the validity thereof provided that,within that time, Developer shall satisfy and discharge such lien to the extent held valid; provided,however,that the satisfaction and discharge of any such lien shall not, in any case, be delayed until execution is had on any judgment rendered thereon, or else such delay shall be considered an Event of Default hereunder. In the event of any such contest, Developer shall protect and indemnify the City and the City Parties against any Claims resulting therefrom as provided in Section 8.3. Notwithstanding anything to the contrary contained in this Section 8.2,in the case of a public improvement lien which provides for installment payments as a means of satisfying such lien,Developer shall be required only to pay,on a timely basis, all installments when due. In the event of any such contest, Developer shall protect and indemnify the City and the City Parties against all Claims resulting therefrom as provided in Section 8.3. Section 8.3 Indemnification. (a) Developer acknowledges and agrees that this Agreement is not an agreement between City and any architect,engineer,general contractor,subcontractor,sub-subcontractor,or materialman or any combination thereof for the construction, alteration, repair, or demolition of a building, structure, appurtenance, or appliance on the Development Site, and therefore that the limitations on indemnity provisions in Section 725.06,Florida Statutes,as such statute may be amended from time to time,do not apply to this Agreement. Accordingly, to the fullest extent permitted by law, Developer shall defend, indemnify and hold harmless the City and the City Parties from any and all Claims first arising following the Effective Date, and arising out of, relating to or resulting from any of the following occurrences or events, whether by Developer or its employees, agents, partners, principals, or contractors: (i) the development, construction, use and operation of the Project or any part thereof which is not in compliance with the terms of this Agreement; (ii) the negligent acts or omissions of Developer or its employees,agents,partners,principals,or contractors;or(iii)any challenge to the validity of any Transfer by a third party through legal proceedings or otherwise based on the action or inaction of Developer or its employees, agents, partners, principals, or contractors, except to the extent any liability, losses or damages are caused by the gross negligence or willful misconduct of the City or its officers, employees, agents,or contractors. (b) Developer shall investigate and defend all claims,suits,or actions of any kind or nature in the name of the City which are covered by this indemnity obligation,where applicable,including appellate proceedings, and shall pay reasonable costs,judgments,and reasonable attorney's fees which may issue thereon. (c) Developer expressly understands and agrees that any insurance protection required by this Agreement or otherwise provided by Developer shall in no way limit the responsibility to indemnify, keep and save harmless and defend the City or any City Parties as herein provided.The City shall give to 64 Page 871 of 2461 Developer reasonable notice of any such claims, suits or actions. The provisions of this Section 8.3 shall survive the expiration or early termination of this Agreement. (d) Developer covenants and agrees that any contracts entered into by Developer and the General Contractor for the Work shall include the indemnities required by this Section 8.3 from the General Contractor in favor of Developer and the City. Section 8.4 Environmental Matters. (a) Defined Terms. - (i) "Environment" means the soil, surface waters, groundwaters, land, stream sediments,surface or subsurface strata and ambient air. (ii) "Environmental Condition" means any condition with respect to the Development Site, whether or not yet discovered, but excluding the Existing Environmental Conditions ([except][OPEN]to the extent of any Release[or Threat of Release] [OPEN]from or the exacerbation(and not mere discovery) of any such Existing Environmental Conditions associated with Developer's performance of its obligations under this Development Agreement including any construction,demolition or preparation by Developer of the Development Site for construction, but only to the extent directly caused by Developer's acts or omissions(excluding mere discovery of any condition)),which results in any Environmental Damages, including any condition resulting from Developer's activities on the Development Site or the activities of any other property owner or operator in the vicinity of the , Development Site or any activity or operation formerly conducted by any Person on or off the Development Site. (iii) "Environmental Damages" means all claims, judgments, damages (but not including (a) special, speculative, exemplary, or punitive damages, or (b) consequential damages in the nature of alleged"lost profits" or"lost opportunities",in each case with respect to the foregoing clauses (a)and(b)except to the extent that a party seeking indemnification of such amount has paid,or is required to pay such measure of damages other than as a result of(and to the extent of) its own gross negligence, willful misconduct or fraud), losses, penalties, fines, liabilities (including strict liability), encumbrances, liens, costs and expenses of investigation and defense of any claim, whether or not such is ultimately defeated, and of any settlement or judgment, of whatever kind or nature, contingent or otherwise, matured or unmatured,foreseeable or unforeseeable,any of which are incurred at any time as a result of the assessment, monitoring, remediation or mitigation of an Environmental Condition (and shall include any damages for the failure to do so), including, without limitation, fees incurred for the services of attorneys,consultants,contractors,experts, laboratories and all other costs incurred in connection with investigation and remediation, including the preparation of any feasibility studies or reports and the performance of any remedial, abatement,containment,closure,restoration or monitoring work. (iv) "Environmental Laws" means the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C.9601 et.seq.,the Resource Conservation and Recovery Act,42 U.S.C. 6901 et. seq.; the Toxic Substances Control Act, 15 U.S.C. 2601 et. seq.; the Clean Water Act, 33 U.S.C.1251 et seq.;the Clean Air Act,42 U.S.C.7401 et.seq.;the Oil Pollution Act,33 U.S.C.2701 et.seq., the Hazardous Materials Transportation Act,49 U.S.C.1801 et.seq.;the Refuse Act of 1989,33 U.S.C.407; as such laws have been amended or supplemented from time-to-time,and the regulations promulgated thereunder;and any equivalent state or local laws;and all other Governmental Requirements relating to reporting, licensing, permitting, investigation and remediation of Releases or Threat of Release into the 65 Page 872 of 2461 Environment, or relating to the manufacture, processing, distribution, use,treatment, storage, disposal, transport or handling of Hazardous Substances or pertaining to the protection of the health and safety of employees or the public. (v) "Environmental Permit" means any Governmental Approval required under any Environmental Law in connection with the ownership, use or operation of the Project by a federal,state or local governmental or quasi-governmental entity having jurisdiction over the Development Site, but excluding any of the foregoing relating to the Existing Environmental Conditions. (vi) "Existing Environmental Conditions"means the following: (1) Any release or threatened release the source of which is reasonably determined to be from the existing fuel storage, distribution and dispensing system including, without limitation,the tanks, lines, pumps, dispensing equipment and all associated equipment. (2) Any hazardous substance known or discovered during the development process that is consistent with or reasonably expected to be caused by, or the result of, the historical use of the Development Site as a petroleum storage facility. (3) Elevated levels of arsenic in the soil and/or groundwater which can reasonably be determined to be the result of importation of soils used to fill the Development Site in the past. (vii) "Hazardous Substance" means any substances or materials presently or hereinafter identified to be toxic or hazardous according to any of the Environmental Laws,including any asbestos, PCB, radioactive substances, petroleum based products, radon gas and includes hazardous wastes, hazardous substances, extremely hazardous substances, hazardous materials, toxic substances, toxic chemicals,oil, petroleum products and their by-products, and pollutants or contaminants as those terms are defined in the Environmental Laws. (viii) "Release" means any releasing, seeping, spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, disposing or dumping of a Hazardous Substance into the Environment in violation of Environmental Laws that are applicable to the Development Site but excluding any of the foregoing relating to the Existing Environmental Conditions. (ix) "Threat of Release" means a substantial likelihood of a Release which requires action Environmental Laws that are applicable to the Development Site to prevent or mitigate damage to the Environment which may result from such Release but excluding any Threat of Release relating to the Existing Environmental Conditions. (b) Representations and Warranties and Covenants of Developer. Developer represents and warrants that it has made such physical inspection of the Development Site,and has inspected such records of the City,Miami-Dade County,Florida,the State of Florida,and the United States of America,as Developer deemed necessary to make an informed business decision that it would enter into this Agreement with the knowledge that,as between Developer and the City,but provided that Closing occurs, • as between Developer and the City, Developer shall be solely responsible for the remediation and abatement of any Environmental Condition existing as of the Effective Date,including any Environmental Condition caused by the City or any prior owner of the Land, and to the extent Developer Commences 66 Page 873 of 2461 and Completes Construction of the Project,any Existing Environmental Conditions(but only to the extent required under applicable Environmental Laws in connection with the development and construction of the Project), that must be remediated and/or abated pursuant to any applicable Environmental Laws. Provided Closing occurs, Developer agrees to expeditiously undertake such assessment,remediation,and monitoring of the soil and ground water within the Development Site if and to the extent required under applicable Environmental Laws in connection with the development and construction of the Project, including with respect to Existing Environmental Conditions but only to the extent Developer Commences and Completes Construction of the Project (and then only to the extent required under applicable Environmental Laws in connection with the development and construction of the Project); and to take such action as necessary to obtain a No Further Action with Conditions determination from DERM or DEP, if required under Environmental Laws, as soon as may be practical after the Closing Date, including with respect to Existing Environmental Conditions to the extent Developer Commences and Completes Construction of the Project(and then only to the extent required under applicable Environmental Laws in connection with the development and construction of the Project). It is understood and agreed that the No Further Action with Conditions includes the use of both engineering controls and institutional controls typically included with a No Further Action with Conditions. Developer agrees that in connection with any remediation or abatement pursuant to this Section 8.4 it will provide to the City all correspondence, reports, studies and other documents exchanged between the City, its consultants, and DERM or DEP promptly after those documents are provided to Developer or received by Developer from DERM or DEP. Developer shall keep City reasonably apprised periodically and following the City's request(which, after Commencement of Construction, may be as part of Developer's monthly construction updates pursuant to Section 2.13(a))of the status and progress of any such remediation. (c) Use of Hazardous Substances. Except for the Existing Environmental Conditions, Developer shall not cause or permit any Hazardous Substances to be brought on,kept or used in or about the Development Site except as necessary in connection with the construction or operation of the Project and in compliance with all Environmental Laws. (d) Environmental Indemnification by Developer. Provided the Closing occurs, Developer hereby indemnifies and holds harmless the City and the City Parties from and against any and all Environmental Damages to the Development Site. Such obligation of Developer shall include the burden and expense of defending all claims, suits and proceedings (with counsel reasonably satisfactory to the City), even if such claims, suits or proceedings are groundless, false or fraudulent, and conducting all negotiations of any description,and paying and discharging,when and as the same become due,any and all judgments, penalties or other sums due against the City and any of the City Parties. Without limiting the foregoing, if the presence or Release on or from the Development Site caused or permitted by Developer results in contamination of the Development Site, Developer shall promptly take all actions at its sole cost and expense as are necessary to remediate Development Site in compliance with Environmental Laws in effect from time to time and to comply with any requirements imposed by any Governmental Authorities;provided that the City's Approval of such actions shall first be obtained. (e) Compliance. Except with respect to the Existing Environmental Conditions,Developer,at its sole cost and expense,shall comply with all Environmental Laws with respect to the construction of the Project and the operations of Developer on the Development Site. City will reasonably cooperate in all respects with Developer, at Developer's sole cost and expense, during the process of addressing any Environmental Condition and will execute all applications, affidavits, covenants and any other required document needed to complete compliance with all Environmental Laws.City will authorize the recording, 67 Page 874 of 2461 in the chain of title of the Development Site,any covenant or other limiting document required or needed to comply with any Environmental Law. (f) Representations, Warranties and Covenants of Existing Marina Lessee and Marina Lessee. Existing Marina Lessee and Marina Lessee,jointly and severally,represent,warrant and covenant that Existing Marina Lessee and Marina Lessee are and shall be solely responsible for the remediation and abatement of any Existing Environmental Condition that must be remediated or abated pursuant to any applicable Environmental Laws; that Existing Marina Lessee and Marina;Lessee will expeditiously undertake such assessment, remediation, and monitoring of the soil and ground water within the Development Site if and to the extent required under applicable Environmental Laws with respect to any Existing Environmental Condition; and to take such action as necessary to obtain a No Further Action determination from DERM or DEP, if required under applicable Environmental Laws as soon as may be practical after the Effective Date with respect to Existing Environmental Conditions. Nothing contained herein is intended to modify or amend the obligations of Existing Marina Lessee under the Existing Marina Lease or the obligations of Marina Lessee under the Marina Lease. [OPEN] Notwithstanding anything to the contrary contained in this Agreement, neither Developer nor General Contractor, or other contractor in privity with Developer, has a duty to indemnify the City or the City Parties in connection with any Environmental Damages to the extent caused by the negligent or intentional conduct of the City,its contractors or any City Parties. The provisions of this Section 8.4 shall survive the expiration or earlier termination of this Agreement. Marina Lessee and Existing Marina Lessee each hereby joins in and consents to this Agreement for purposes of acknowledging and confirming its agreement to the terms of this Section 8.4. Section 8.5 Limitation of City's Liability. (a) Any tort liability to which the City is exposed under this Agreement shall be limited to the extent permitted by applicable law and subject to the provisions and monetary limitations of Section 768.28, Florida Statutes,as may be amended,which statutory limitations shall be applied as if the parties had not entered into this Agreement, and City expressly does not waive any of its rights and immunities thereunder. (b) City will not in any event whatsoever be liable for any injury or damage to Developer (unless caused by the gross negligence or willful misconduct of City,its agents,contractors or employees) or to any other Person happening on, in or about the Development Site and its appurtenances, nor for any injury or damage to the Development Site or to any property belonging to Developer(unless caused by the gross negligence or willful misconduct of City,its agents,contractors or employees)or to any other Person which may be caused by any fire or breakage, or by the use, misuse or abuse of any of the Improvements (including any of the common areas within the buildings, equipment,elevators, hatches, openings, installations, stairways, hallways or other common facilities or the improvements to the land described in this Agreement),or which may arise from any other cause whatsoever(unless caused by the gross negligence or willful misconduct of City,its agents, contractors or employees). (c) City will not be liable to Developer or to any other Person for any failure of telephone, computer system, cable TV, water supply, sewage disposal, gas or electric current, nor for any injury or damage to any property of Developer or to any Person or to the Development Site caused by or resulting from gasoline, oil, steam, gas, electricity, or hurricane, tornado, flood, wind or similar storms or 68 Page 875 of 2461 disturbances, or water, rain or snow which may leak or flow from the street, sewer, gas mains or subsurface area or from any part of the Development Site, or leakage of gasoline or oil from pipes, appliances,sewer or plumbing works therein, or from any other place, nor for interference with light or other incorporeal hereditaments by any Person (unless caused by the gross negligence or willful misconduct of City, its agents, contractors or employees). For the avoidance of doubt, nothing in this Section 8.5(c) shall be deemed to limit, restrict or abridge the provisions of this Agreement regarding Force Majeure Events and Unavoidable Delays. ARTICLE IX RISK OF LOSS,INSURANCE AND RECONSTRUCTION Section 9.1 Risk of Loss. The risk of loss to any of the Work and to any goods, materials and equipment provided or to be provided under this Agreement, shall remain with the Developer until Completion of Construction. Should any of the Work, or any such goods, materials and equipment be destroyed,mutilated,defaced or otherwise damaged prior to Completion of Construction,Developer shall repair or replace the same at its sole cost. The payment bond and,performance bond or other security or insurance protection required by this Agreement or otherwise provided by the Developer or the General Contractor shall in no way limit the responsibility of the Developer under this Section. Section 9.2 General Insurance Provisions IOPENI. After Closing and prior to any activity by Developer on the Development Site, and thereafter, at all times during the Term, Developer at its sole cost and expense shall procure the insurance specified below. In addition, Developer shall require any General Contractor to maintain the insurance coverages set forth below. All policies must be executable in the State of Florida.All insurers must maintain an AM Best rating of A-or better.The terms and conditions of all policies must be equivalent to the policy forms issued by the Insurance Services Office (ISO) or the National Council on Compensation Insurance(NCCI).'Said insurance policies shall be primary over any and all insurance available to the City whether purchased or not and shall be non-contributory.Developer and any General Contractor shall be solely responsible for all deductibles contained in their respective policies. Ail policies procured pursuant to this Article IX shall be subject to maximum deductibles reasonably acceptable to the City. The City of Miami Beach will be included as an "additional insured" on the commercial general liability and automobile liability (to the extent available), and as loss payee on the builder's risk policy. Section 9.3 Evidence of Insurance. After Closing and prior to any activity by Developer on the Development Site, and annually thereafter, Developer shall deliver satisfactory evidence of the required insurance to the City.Satisfactory evidence shall be:(a)a certificate of insurance for all required coverage; and (b).a copy of the actual insurance policy for builder's risk coverage.The City, at is sole option, may request a certified copy of any or all insurance policies required by this Agreement, or the applicable portions thereof if insurance is provided through a master insurance program. All insurance policies must specify they are not subject to cancellation or non-renewal without a minimum of 30 days notification by the insurer to the City,the City's Risk Management Division and the First Mortgagee,with a minimum of 10 days notification by the insurer to the City, the City's Risk Management Division and the First Mortgagee prior to cancellation or non-renewal for non-payment of premium. Developer will deliver to the City,at least 30 days prior to the date of expiration of any insurance policy,a renewal policy replacing any policies expiring during the Term of this Agreement,or a certificate thereof,together with evidence that the full premiums have been paid unless the premiums are being financed; provided that such financing shall be permitted only if such policy provides that the insurer will deliver to the City reasonable 69 Page 876 of 2461 advance written notice prior to the cancellation of any coverage thereunder and a reasonable period of time within which the City has the right, but not the obligation,to pay any unpaid premiums to avoid any lapse in coverage. Premiums may be paid,in annual installments. All certificates of insurance shall (i) be in a form acceptable to the City, (ii) name the types of policies provided, (iii) refer specifically to this Agreement; (iv)evidence the waiver of subrogation in favor of the City as required by Section 9.10 below; and(v)evidence that coverage shall be primary and noncontributory,and that each policy includes a Cross Liability or Severability of Interests provision, with no requirement of premium payment by the City. Developer shall deliver, together with each certificate of insurance, a fetter from the agent or broker placing such insurance, certifying to the City that the coverage provided meets the coverage required under this Agreement. The official title of the certificate holder is "City of Miami Beach, Florida." Additional insured certificates for the City shall read"City of Miami Beach,Florida",and shall be addressed to 1700 Convention Center Drive, Miami Beach, FL,33139,Attn: Risk Management,3rd Floor. Section 9.4 Required Coverages. In addition to such insurance as may be required by law, the Developer shall procure and maintain,or cause others to procure and maintain,without lapse or material change,the following insurance,which may be provided through master blanket insurance policies: (a) Commercial General Liability Insurance on a comprehensive basis, including contractual liability,to cover the Leased Property and Developer's operations and indemnity obligations,in an amount not less than $5,000,000 combined single limit per occurrence for bodily injury and property damage. Such insurance may be provided through a combination of primary and excess/umbrella liability policies. (b) Automobile Liability Insurance covering all owned,non-owned and hired vehicles used by Developer in connection with its operations under this Lease in an amount not less than $1,000,000 combined single limit per occurrence for bodily injury and property damage. Coverage must be afforded equivalent to the latest edition of the Business Automobile Liability policy, as filed by the Insurance Services Office(ISO). (c) Builders Risk Insurance during the course of construction, issued in the name of Developer,any General Contractor and the City as their interests may appear,in amount(s) not less than 100% of the insurable value of the Project completed structure(s), covering perils on an "All Risk" basis, including flood, earthquake, and windstorm. Policy(s) must clearly indicate that underground structures (if applicable) and materials being installed are covered. Any deductibles are the sole responsibility of Developer. (d) Workers' Compensation and Employers Liability Insurance with limits sufficient to respond to Florida Statute §440. In addition, Developer shall obtain Employers' Liability Insurance with limits of not less than:(i)$500,000 Bodily Injury by Accident, (ii)$500,000 Bodily Injury by Disease and(iii) $500,000 Bodily Injury by Disease,each employee. (e) Professional Liability. Developer shall cause any architects or engineers to maintain architects and engineers errors and omissions liability insurance specific to the activities or scope of work such consultants will perform. If coverage is provided on a "claims made" basis,the policy shall provide for the reporting of claims for a period of five (5) years following the completion of all construction activities. The minimum limits acceptable shall be $1,000,000 per occurrence and $3,000,000 in the annual aggregate. Section 9.5 Premiums and Renewals. Developer shall pay as the same become due all premiums for the insurance required by this Article IX, shall renew or replace each such policy and deliver to the City 70 Page 877 of 2461 evidence of the payment of the full premium thereof prior to the expiration date of such policy,and shall promptly deliver to the City all original Certificates of Insurance and copies of all such renewal or replacement policies. Section 9.6 Adequacy Of Insurance Coverage. The adequacy of the insurance coverage required by this Article IX may be reviewed periodically by the City in its sole discretion. Except with respect to"CCIP" and "OCIP" policies, the City reserves-the right, but not the obligation, to review and reasonably revise the insurance requirements every three (3) years, (including but not limited to deductibles, limits, coverages and endorsements) provided such revisions are commercially reasonable, customary and commonly available regarding properties similar in type, size, use and location to the Development Site and the Improvements and further provided that such coverage is available at commercially reasonable rates(including fiduciary liability and directors and officers liability insurance), Developer agrees that City may, if it so elects, at City's expense, have the Improvements appraised for purposes of obtaining the proper amount of insurance hereunder. Any review by the City shall not constitute an approval or acceptance of the amount of insurance coverage. Section 9.7 City May Procure Insurance if Developer Fails To Do So. If Developer refuses, neglects or fails to secure and maintain in full force and effect any or all of the insurance required pursuant to this Agreement within thirty (30) days after written notice from the City to Developer and First Mortgagee, the City, at its option, may procure or renew such insurance. In that event, all commercially reasonable amounts of money paid therefor by the City shall be paid by Developer,together with interest thereon at the Default Rate(as defined in the City Note)from the date the same were paid by the City to the date of payment thereof by Developer. Such amounts, together with all interest accrued thereon, shall be paid by Developer to the City within ten (10)days of written notice thereof. Section 9.8 Effect of Loss or Damage. Any loss or damage by fire or other casualty of or to any of the improvements on the Development Site at any time shall not operate to terminate this Agreement or to relieve or discharge Developer from the performance and fulfillment of any of Developer's obligations pursuant to this Agreement. No acceptance or approval of any insurance agreement or agreements by the City shall relieve or release or be construed to relieve or release Developer from any liability,duty or obligation assumed by,or imposed upon it by the provisions of this Agreement. Section 9.9 Proof of Loss. Whenever any Improvements, or any part thereof, constructed on the Development Site shall have been damaged or destroyed,Developer shall promptly make proof of loss in accordance with the terms of the insurance policies and shall proceed promptly to collect or cause to be collected all valid claims which may have arisen against insurers or others based upon any such damage or destruction. Section 9.10 Insurance Proceeds. All sums payable for loss and damage arising out of the casualties covered by the property insurance policies shall be payable to Developer for restoration of the Project, subject to the rights of any First Mortgagee. Developer shall use diligent,good faith efforts to satisfy all conditions of the First Mortgage to permit release and disbursement of such proceeds towards the costs of restoration of the Project. Section 9.11 Waiver of Subrogation. Where permitted by law, each Party hereby waives all rights of recovery by subrogation or otherwise (including claims related to deductible or self-insured retention clauses, inadequacy of limits of any insurance policy, insolvency of any insurer, limitations or exclusions of coverage),against the other Party and its respective officers,agents or employees. 71 Page 878 of 2461 Section 9.12 Inadequacy of Insurance Proceeds. Developer's liability hereunder to timely commence and complete restoration of the damaged or destroyed Lessee Improvements shall be absolute, irrespective of whether insurance proceeds received,if any,are adequate to pay for said restoration. Section 9.13 No City Obligation to Provide Property Insurance. Developer acknowledges and agrees that the City shall have no obligation to provide any property insurance on any Improvements or property of Developer located on the Development Site. If the City does maintain any property insurance coverage, Developer acknowledges that such insurance shall be for the sole benefit of the City and Developer shall have no right or claim to such proceeds. Section 9.14 Compliance. Developer's compliance with the requirements of this Article IX shall not relieve Developer of its liability,or be construed to relieve or limit,Developer of any responsibility,liability or obligation imposed under any other portion of this Agreement,or by law,including,any indemnification obligations which Developer owes to the City. Section 9.15 Right to Examine. The City reserves the right, upon reasonable notice, to examine the original or true copies of policies of insurance (including binders, amendments, exclusions, riders and applications), or applicable portions of any master insurance policy, to determine the true extent of coverage. Lessee Developer agrees to permit such inspections and make available such policies or portions thereof at the offices of the City. Section 9.16 Personal Property. Any personal property of Developer or of others placed on the Development Site shall be at the sole risk of Developer or the owners thereof, and the City shall not be liable for any loss or damage thereto for any cause except as a result of the gross negligence or willful misconduct of the City or its employees, agents or contractors. ARTICLE X MAINTENANCE AND REPAIRS Section 10.1 Standards Generally. During the period of time commencing on any Early Work (other than Early Work described in clauses(i) and (ii)of the definition thereof) until the earlier of termination of this Agreement or Completion of Construction, Developer shall maintain the Development Site in a clean,slightly,sanitary and safe condition to the extent required by and in accordance with all applicable Governmental Requirements. In no event shall City be responsible or liable for any maintenance or repair of any Improvement, fixture, equipment, structure, facility, alteration, or addition thereto on the Development Site. Section 10.2 Utilities. City, in its proprietary capacity, will not be required to furnish any services, utilities or facilities whatsoever to the Development Site solely by virtue of this Agreement. Any services provided to the Development Site shall be pursuant to the terms of a separate agreement. Section 10.3 Intentionally Deleted. Section 10.4 Removal of Trash. Developer shall, at its sole cost and expense, store, dispose of, and remove or cause to be removed from the Development Site all trash and refuse which might accumulate in unreasonable quantities and arise from its use of the Development Site. Upon substantial completion of portions of the Work, Developer shall and shall cause the General Contractor to remove all rubbish, tools,scaffolding and surplus materials related to such substantially complete portions of the Work from the Development Site. 72 Page 879 of 2461 Section 10.5 Excavation of Land. Except in connection with the construction of the Project and as reasonably necessary in connection with the remediation of any Environmental Condition or Existing Environmental Condition, Developer`-shall make no excavation of any of the land, Developer shall not remove soil or earth from the Development Site,and Developer shall not dig,construct or drill any well of any nature on the Development Site, except in compliance with all applicable Governmental Requirements. Section 10.6 Water and Sewerage System. Developer shall operate and maintain, at its sole cost and expense,all the components of the water,sanitary sewerage and storm drainage facilities constructed by Developer as part of the Project. Section 10.7 Industrial Waste Facilities. Except as set forth in Section 8.4, Developer shall be fully responsible for all industrial wastes on the Development Site caused or produced by Developer or third- parties engaged by or performing work on behalf of Developer to the extent such third-parties are operating on the Development Site during the period of time commencing on any Early Work until the earlier of termination of this Agreement or Completion of Construction, as well as the proper disposal thereof, in accordance with applicable Governmental Requirements. Section 10.8 Inspections. Upon Commencement of Construction, the City and/or its designated representatives shall have the right,during normal working hours,after prior reasonable notice to inspect the Development Site and the Improvements to identify those items of maintenance reasonably required of Developer to comply with the maintenance requirements under the express terms of this Agreement. If Developer has failed to fulfill its maintenance obligations under this Agreement, City shall provide written notice and Developer shall perform all corrective work identified in such notice within thirty(30) days of receipt of the notice from City; provided, however that if such corrective work cannot be reasonably accomplished within a thirty(30) day period,then Developer shall commence the corrective work within that thirty (30) day period and diligently prosecute same to completion. Trash and debris maintenance shall be corrected within two(2)Business Days following receipt of written notice from City. Failure of City to inspect as aforementioned shall not impose any liability on the City. Nothing in this contractual provision relating to City's inspections shall preclude City from making inspections of the Development Site in accordance with City's regulatory authority. Section 10.9 Failure of Developer to Maintain. If Developer has failed to comply with its maintenance obligations under this Agreement, the City shall provide to Developer a written list of deficiencies, reflecting the amount of time to be reasonably allowed for Developer to correct same. If Developer fails to correct or commence to correct such deficiencies within the time allowed and has not registered an objection as to its obligation to do so, the City, at its option, may elect to correct any or all of such deficiencies, in which case, the City shall give Developer fifteen,(15) days further written notice of its intention to do so, and if Developer has not corrected or commenced to correct the same within such additional fifteen (15) day period,the City may enter upon the Development Site and perform all work, which,in the reasonable judgment of the City,is necessary and Developer shall pay the cost of such work, plus twenty-five percent (25%) for administrative costs, to the City within thirty (30) days after written . demand therefor. If Developer has not corrected or commenced to correct such deficiencies within such additional fifteen (15)day period, Developer shall not undertake performance of such repairs or cleanup without specific prior written authorization from the City. 73 , Page 880 of 2461 ARTICLE XI MISCELLANEOUS PROVISIONS Section 11.1 No Partnership or Joint Venture. It is mutually understood and agreed that nothing contained in this Agreement is intended or shall be construed in any manner or under any circumstances whatsoever as creating or establishing the relationship of co-partners, or creating or establishing the relationship of a joint venture between the City and Developer,or as constituting Developer as the agent or representative of the City for any purpose or in any manner whatsoever. Section 11.2 Recording. Within fourteen (14) days after the Effective Date, the City shall record this Agreement in the Public Records of Miami-Dade County, Florida. Developer shall be responsible for all recording fees and other related fees and costs related to the recording of this Agreement. The provisions hereof shall remain in full force and effect during the Term, and subject to the conditions of this Agreement,shall be binding upon the Parties and all successors in interest to the Parties. Section 11.3 Florida and Local Laws Prevail.This Agreement shall be governed by the laws of the State of Florida.This Agreement is subject to and shall comply with the City Code as the same is in existence as of the execution of this Agreement and the ordinances of the City of Miami Beach.Any conflicts between this Agreement and the City Code shall be resolved in favor of the latter. If any term, covenant, or condition of this Agreement or the application thereof to any Person or circumstances shall to any extent, be illegal, invalid, or unenforceable because of present or future laws or any rule or regulation of any governmental body or entity or becomes unenforceable because of judicial construction,the remaining terms,covenants and conditions of this Agreement,or application of such term,covenant or condition to Persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby and each term,covenant,or condition of this Agreement shall be valid and be enforced to the fullest extent permitted by law. Any dispute arising out of or relating to this Agreement that specifically provides for arbitration (and only such provisions)shall be subject to arbitration as expressly provided herein. In any such arbitration or in any legal action brought by either Party because of a breach of this Agreement or to enforce any provision of this Agreement,the prevailing Party shall be entitled to reasonable attorneys',fees and paralegals'fees and costs,including those incurred in subsequent actions to enforce or vacate an arbitration award,bankruptcy awards and orders,and those incurred on appeal. Section 11.4 No Conflicts of Interest/City Representatives not Individually Liable. No member, official, representative,or employee of the City shall have any personal interest,direct or indirect,in this Agreement, nor shall any such member, official, representative or employee participate in any decision relating to this Agreement which affects his or her personal interest or the interest of any corporation, partnership or association in which he or she is, directly or indirectly, interested. No member, official, elected representative or employee of the City shall be personally liable to Developer or any successor in interest in the event of any default or breach by the City or for any amount which may become due to Developer or successor or on any obligations under the terms of this Agreement. Section 11.5 Notice.A notice or communication, under this Agreement by the City, on the one hand, to Developer,or,on the other,by Developer to the City shall be sufficiently given or delivered if in writing and dispatched by hand delivery, or by nationally recognized overnight courier providing receipts,or by registered or certified mail, postage prepaid,return receipt requested to: (a) Developer. In the case of a notice or communication to Developer if addressed as follows: To: 74 Page 881 of 2461 • Marina Park Residential,LLC 3310 Mary Street Suite 302 Coconut Grove, Florida 33133 Attention: David P. Martin and Ellen Buckley And: Marina Park Commercial, LLC 3310 Mary Street Suite 302 Coconut Grove, Florida 33133 Attention: David P.Martin and Ellen Buckley With Copies Copy To: Gangemi Law Group,PLLC 3310 Mary Street Suite 303 Miami, Florida 33133 Attention: Laura Gangemi Vignola, Esq. (b) City. In the case of a notice or communication to the City, if addressed as follows: To: City Manager City of Miami Beach, Florida 1700 Convention Center Drive,4th Floor Miami Beach, Florida 33139 With Copies To: City Attorney City of Miami Beach, Florida 1700 Convention Center Drive,4th Floor Miami Beach, Florida 33139 or if such notice is addressed in such other way in respect to any of the foregoing Parties as that Party may,from time-to-time, designate in writing,dispatched as provided in this Section. Section 11.6 Estoppel Certificates.The City and Developer shall, within thirty (30) days after written request by the other, execute,acknowledge and deliver to the Party which has requested the same or to 75 Page 882 of 2461 any actual or prospective First Mortgagee,Mezzanine Lender,or purchaser of any direct or indirect equity interest in Developer, a certificate stating that: (a) this Agreement is in full force and effect and has not been modified, supplemented or amended in any way, or, if there have been modifications, this Agreement is in full force and effect as modified, identifying such modification agreement, and if this Agreement is not in force and effect,the certificate shall so state; (b) this Agreement as modified represents the entire agreement between the Parties as to this subject matter,or,if it does not,the certificate shall so state; (c) the dates on which the Term of this Agreement commenced and will terminate; (d) to the knowledge of the certifying Party all conditions under this Agreement to be performed up to that date by the City or Developer,as the case may be,have been performed or satisfied and,as of the date of such certificate,there are no existing defaults, defenses or offsets which the City or Developer,as the case may be, has against the enforcement of this Agreement by the other Party,or, if such conditions have not been satisfied or if there are any defaults, defenses or offsets, the certificate shall so state;and (e) in connection with any request by a prospective First Mortgagee or Mezzanine Lender, that such proposed First Mortgagee or Mezzanine Lender (as applicable) and such proposed financing satisfy the requirements of Section 6.1, including the requirements of Section 6.1(g). The Party to whom any such certificate shall be issued may rely on the matters therein set forth;however, in delivering such certificate neither.Developer nor the City(nor any individual signing such certificate on such Party's behalf) shall be liable for the accuracy of the statements made therein, but rather shall be estopped from denying the veracity or accuracy of the same.Any certificate required to be made by the City or Developer pursuant to this paragraph shall be deemed to have been made by the City or Developer (as the case may be)and not by the person signing same. Section 11.7 Titles of Articles and Sections.Any titles of the several parts,Articles and Sections of this Agreement are inserted for convenience of reference only and shall be disregarded in construing or interpreting any of its provisions. Section 11.8 Counterparts.This Agreement may be executed in counterparts, each of which shall be deemed an original.Any such counterparts shall constitute one and the same instrument.This Agreement shall become effective only upon execution and delivery of this Agreement by the Parties hereto. Section 11.9 Successors and Assigns; No Third Party Beneficiaries. Except to the extent limited elsewhere in this Agreement,all of the covenants conditions and obligations contained in this Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the City and Developer. Developer shall have the right to assign this Agreement in connection with any Permitted Transfers and in connection with any other Transfers that are'Approved by the City Manager pursuant to the terms hereof. Developer and the City acknowledge and agree that except for a First Mortgagee or a Mezzanine Lender,if any, each of which shall have the rights set forth in Article VI hereof,and except for Existing Marina Lessee and Marina Lessee,each of which shall have the rights set forth in Section 2.10(b), no third party shall have any rights or claims arising hereunder,nor is it intended that any third party shall be a third party beneficiary of any provisions hereof. 76 Page 883 of 2461 Section 11.10 Entire Agreement.This Agreement and its Exhibits,together with the Purchase and Sale Agreement,the City Note,the City Mortgage,the Marina Lease,the Reciprocal Easement Agreement and the Recognition Agreement, constitute the sole and only agreements of the Parties hereto with respect to the subject matter hereof and thereof and correctly set forth the rights,duties,and obligations of each to the other as of its date. Any prior agreements,promises,negotiations,or representations not expressly set forth in this Agreement, the Purchase and Sale Agreement, the City Note, the City Mortgage, the Marina Lease,the Reciprocal Easement Agreement and/or the Recognition Agreement are of no force or effect and are merged into this Agreement. Section 11.11 Amendments. (a) No amendments to this Agreement shall be binding on any Party unless in writing and signed by all Parties. (b) Solely to the limited extent as may be necessary to (I) reasonably facilitate the Construction Loan to finance the Project and/or the Mezzanine Loan, the City Manager shall have the delegated authority(but not the obligation),after consultation with the City's Chief Financial Officer and City Attorney,to negotiate and execute modifications to Article 9,Article 10,Sections 6.1(a)(vi)through 6.1(a)(ix), and Sections 6.1(b) through 6.1(k) of this Agreement, and (ii) conform the initial legal descriptions of the Residential Parcel and Commercial Retail Premises to the updated and/or actual legal descriptions thereof following receipt of all Governmental Approvals and following Completion of Construction, and the City Manager shall have the delegated authority (but not the obligation), after consultation with the City Attorney, to amend Exhibit "6-2" [Residential Parcel] and Exhibit "L" [Commercial Retail Premises]attached hereto. AD other amendments must be approved by majority vote of the City Commission,subject to the requirements of applicable law. (c) The City shall not be obligated to expend any money or undertake any obligation connected with any such amendment proposed by Developer, or otherwise connected with any action requested by or for the benefit of Developer under this Agreement,and shall be reimbursed by Developer for all out of pocket expenses(including third party consultants and attorneys)incurred by the City. Prior to the City taking action regarding any such request, Developer shall deposit with the City the estimated amount of such costs,as reasonably determined by the City. Section 11.12 Non-Subordination of City's Interest. The City's fee interest in and ownership of the Land (excluding the Residential Parcel after the Vesting Date) and the City's rights and interest in this Agreement (including the rights to any monetary obligations of Developer to the City under this Agreement)shall not be subject or subordinate to or encumbered by any financing for the Project or lien or encumbrances affecting Developer's interest in this Agreement or the Improvements or by any acts or omissions of Developer hereunder.In this regard,any monetary obligations of Developer to the City under this Agreement then payable at any point in time during the Term shall be paid by Developer to the City and shall be superior in right to all claims or rights hereunder or described above in this Section,including the payment of debt service,and any distributions of profits to Developer or any of its Affiliates or owners. City acknowledges that this Agreement shall not be subordinate to any future mortgage against the fee interest in the Land. Notwithstanding anything to the contrary contained in this Agreement,if all or any portion of the interest of the City in the Land or this Agreement shall be acquired by reason of foreclosure of any mortgage,security agreement, lien or other encumbrance or other proceedings brought to enforce the rights of the holder(s)thereof, by deed in lieu of foreclosure or by any other method,and as a result any Person succeeds to such interests of City,this Agreement and the rights of Developer hereunder shall 77 Page 884 of 2461 continue in full force and effect and shall not be terminated or disturbed except as otherwise expressly permitted by the terms of this Agreement. Section 11.13 City Manager's Delegated Authority. Notwithstanding any provision to the contrary in this Agreement, nothing herein shall preclude the City Manager from seeking direction from or electing to have the City Commission determine any matter arising out of or related to this Agreement,including, without limitation, any Approval contemplated under this Agreement (within the timeframe specified therefor as if the Approval was being determined by the City Manager), any proposed amendment or modification to this Agreement or any separate agreement relating to the Project or otherwise referenced in this Agreement. Section 11.14 Holidays. It is hereby agreed that whenever a notice or performance under the terms of this Agreement is to be made or given on a Saturday or Sunday or on a legal holiday recognized by the City,it shall be postponed to the next following Business Day, not a Saturday,Sunday or legal holiday. Section 11.15 No Brokers. Developer shall be responsible for, and shall hold the City harmless with respect to,the payment of any commission claimed by or owed to any real estate broker or other Person retained by Developer and which is entitled to a commission as a result of the execution and delivery of this Agreement.The City similarly shall be responsible for,and shall hold Developer harmless with respect to,the payment of any commission claimed by or owed to any real estate broker or other Person retained by the City and which is entitled to a commission as a result of the execution and delivery of this Agreement. This provision shall survive the expiration or termination of this Agreement. Section 11.16 No Liability for Approvals and Inspections. Except as may be otherwise expressly provided herein, no approval to be made by the City in its capacity as the owner of the Land or any inspection of the Work or the Project by the City under this Agreement, shall render the City liable for its failure to discover any defects or nonconformance with any Governmental Requirement. Section 11.17 Radon. Radon is a naturally occurring radioactive gas that,when it has accumulated in a building in sufficient quantities, may present health risks to persons who are exposed to it over time. Levels of radon that exceed federal and state guidelines have been found in buildings in Florida.Additional information regarding radon and radon testing may be obtained from the county public health unit for Miami-Dade County. Section 11.18 Developer Entity.On the date of execution hereof,each entity comprising the Developer is a limited liability company. In the event that at any time during the Term of this Agreement and any extensions and renewals thereof, Developer is a [corporation or an entity other than a limited liability company],then any references herein to member, membership interest,manager and the like which are applicable to a limited liability company shall mean and be changed to the equivalent designation of such term which is appropriate to the nature of the new Developer entity. Section 11.19 Inflation Adiustments.All adjustments for inflation required under this Agreement shall be calculated utilizing the United States Bureau of Labor Statistics, Consumer Price Index for All Urban Consumers; U.S.City average(1982-84=100). If the United States Department of Labor should no longer compile and publish this index,the most similar index compiled and published by said Department or any other branch or department of the federal government shall be used for the purpose of computing the inflation adjustments provided for in this Agreement. If no such index is compiled or published by any branch or department of the federal government, the statistics reflecting cost of living increases as 78 Page 885 of 2461 compiled by any institution or organization or individual designated by the City and generally recognized as an authority by financial or insurance institutions shall be used as a basis for such adjustments. Section 11.20 Standard of Conduct.The implied covenant of good faith and fair dealing under Florida law is expressly adopted. Section 11.21 Waiver of Consequential Damages. Notwithstanding anything contained in this Agreement to the contrary, in no event shall either Party be liable to the other for any consequential, exemplary or punitive damages. Section 11.22 Reservation of Rights. This Agreement shall not affect any rights that may have accrued to any Party to this Agreement under applicable laws and each Party hereto reserves any and all of such rights. Section 11.23 Reimbursement. Developer shall reimburse all of the City's reasonable costs and expenses (including attorneys', advisors' and third party appraisers' fees, charges and disbursements) incurred by the City and arising in connection with this Agreement,the Purchase Agreement,the Marina Lease, the Reciprocal Easement Agreement, the Alternate Easement Agreement, the Recognition Agreement and all other agreements,documents and instruments prepared, executed and/or delivered in connection therewith,incurred through the date of second reading of the proposed transaction,which is currently anticipated for July 29, 2020 and thereafter,for all such costs and expenses of the City not to exceed $75,000; provided, however, in the event Developer[, Marina Lessee or Existing Marina Lessee] [OPEN] requests any revisions or amendments to this Agreement and the other transaction documents referenced herein that are not expressly contemplated by and referenced in this Agreement and such other documents,Developer shall be responsible for all of the City's reasonable attorneys', advisors'and third party appraisers'fees,charges and disbursements incurred in connection therewith notwithstanding the foregoing cap. [signature pages to follow] 79 Page 886 of 2461 IN WITNESS WHEREOF, Developer has caused this Agreement to be duly signed in its name, and the City of Miami Beach has caused this Agreement to be signed in its name by the Mayor, and duly attested to by the City Clerk,and approved as to form and sufficiency by the City Attorney,on the day and year first above written. WITNESSED BY: CITY: CITY OF MIAMI BEACH,FLORIDA Print Name: By: Dan Gelber Print Name: Mayor ATTEST Approved for form and legal sufficiency By: By: City Clerk City Attorney STATE OF FLORIDA COUNTY OF MIAMI-DADE The foregoing instrument was acknowledged before me, by means of[ ] physical presence or [ ]online notarization,this_day of 2020, by Dan Gelber, as mayor of the City of Miami Beach, Florida,who is personally known to me or who produced as identification. Notary Public Commission Number: Commission Expires: Page 887 of 2461 DEVELOPER: WITNESSED BY: RESIDENTIAL DEVELOPER: MARINA PARK RESIDENTIAL,LLC Print Name: By: Name: Print Name: Title: STATE OF FLORIDA COUNTY OF MIAMI-DADE The foregoing instrument was acknowledged before me, by means of[ j physical presence or [ j online notarization,this_day of ,2020,by as of MARINA PARK RESIDENTIAL LLC, a Delaware limited liability company, who is personally known to me or who produced as identification. Notary Public Commission Number: Commission Expires: Page 888 of 2461 WITNESSED BY: DEVELOPER: COMMERCIAL RETAIL DEVELOPER: MARINA PARK COMMERCIAL LLC Print Name: By: Name: Print Name: Title: STATE OF FLORIDA COUNTY OF MIAMI-DADE The foregoing instrument was acknowledged before me, by means of[ ] physical presence or [ ]online notarization,this day of ,2020, by , as of MARINA PARK COMMERCIAL LLC,a Delaware limited liability company, who is personally known to me or who produced as identification. Notary Public Commission Number: Commission Expires: Page 889 of 2461 Joined in and consented to by Existing Marina Lessee solely for purposes of acknowledging and confirming its agreement to the terms of Section 2.1.0(b),2.11(k),4.1,7.1(s),7.4 and 8.4 of this Agreement. WITNESSED BY: EXISTING MARINA LESSEE: MARINA BEACH MARINA ASSOCIATES,LTD. Print Name: By: , its general partner Print Name:. By: Name: Title: STATE OF FLORIDA COUNTY OF MIAMI-DADE The foregoing instrument was acknowledged before me,by means of[ ] physical presence or [ ]online notarization,this_day of ,2020, by , as of[ ],a[ ],the general partner of Miami Beach Marina Associates,Ltd.,who is personally known to me or who produced as identification. Notary Public Commission Number: Commission Expires: Page 890 of 2461 Joined in and consented to by Marina Lessee solely for purposes of acknowledging and confirming its agreement to the terms of Section 2.10(b),2.11(k),4.1,7.1(s),7.4 and 8.4 of this Agreement. WITNESSED BY: MARINA LESSEE: MB MARINA PARK, LLC Print Name: By: Print Name: Name: Title: STATE OF FLORIDA COUNTY OF MIAMI-DADE The foregoing instrument was acknowledged before me, by means of[ ] physical presence or [ ]online notarization,this_day of ,2020, by , as of MB MARINA PARK, LLC, a Delaware limited liability company, who is personally known to me or who produced as identification. Notary Public Commission Number: Commission Expires: Page 891 of 2461 EXHIBIT"A" ACCEPTABLE OWNER DEFINITION A. "Acceptable Owner" means any individual, corporation or other entity which has, at a minimum,the following qualifications: 1. The Proposed Major Transferee is not a Foreign instrumentality other than a member country of the European Union, as existing on the Effective Date, United Kingdom, Canada, Norway,Switzerland and Mexico,or a Person Controlled by any of the foregoing countries. 2. The Proposed Major Transferee must not be owned, or Controlled by entities or individuals who have been convicted, or are presently under indictment, for felonies under the laws of any foreign or United States of America jurisdiction. But the foregoing shall not apply to individuals or entities owning less than a twenty percent (20%) equity interest in the proposed transferee, other than officers,directors, managers or others who have the power to direct and control the business and affairs of the proposed transferee. 3. The Proposed Major Transferee must not in its charter or organizational documents (defined as the articles of incorporation and bylaws for any corporation, the partnership agreement and partnership certificate for any partnership,the articles of organization and limited liability company operating agreement for any limited liability company, the trust agreement for any trust and the constitution of the relevant government for any governmental entity, but expressly excluding any statements, positions, actions or allegations not contained in such charter organizational documents) expressly advocate or have as its stated purpose:(a)the violent overthrow of or armed resistance against, the U.S. government; or (b) genocide or violence against any persons; or (c) discrimination, hatred or animosity toward persons based solely on their race,creed,color, sex or national origin. 4. The Proposed Major Transferee or an Affiliate of such Proposed Major Transferee Controlling such Proposed Major Transferee or Person with an ownership interest in such Proposed Major Transferee Controlling such Proposed Major Transferee,shall have had no violations of any applicable law against such Proposed Major Transferee, or any other property owned or managed by such Proposed Major Transferee,within Florida, which have resulted in a forfeiture of the Proposed Major Transferee's entire interest in such other property. 5. The Proposed Major Transferee must not (nor any of the individuals or entities who own at least a twenty percent(20%)equity interest in such Proposed Major Transferee or are officers, directors, managers or otherwise have the power to direct and control the business and affairs of such Proposed Major Transferee) have filed or been discharged from bankruptcy,or have been the subject of an involuntary bankruptcy, reorganization or insolvency proceedings within the past five (5) years (bankruptcy filings by Affiliates shall not disqualify a Proposed Major Transferee,unless such Affiliates are any of the individuals or entities described in the parenthetical immediately above). B. "Acceptable Owner Criteria": The foregoing categories of requirements set forth in paragraph A above are collectively defined as the"Acceptable Owner Criteria." C. Evaluation of the Acceptable Owner Criteria: Page 892 of 2461 Solely for the purpose of evaluating whether the Proposed Major Transferee has met the Acceptable Owner Criteria,the Proposed Major Transferee shall provide the following information to the Developer and certify that the information provided by the Proposed Major Transferee is true and correct and that the proposed transferee meets or exceeds the Acceptable Owner Criteria: 1. information sufficient for the City or any outside vendor engaged by the City to perform a due diligence investigation pursuant to paragraph D below, including copies of any applicable operating licenses; 2. identification and summary description of its principals and its major real estate or other investments; 3. a list of all bankruptcies filed by such Proposed Major Transferee or to which such Proposed Major Transferee was a party-bankrupt, if any; and 4. such other evidence as is commercially reasonably necessary as determined by Developer to establish that the new entity proposed to be the Acceptable Owner meets the Acceptable Owner Criteria. D. With respect to any proposed Transfer to a Proposed Major Transferee, City may, at its sole discretion,engage an outside vendor to perform a due diligence investigation at the Developer's or such Proposed Major Transferee's sole expense, which may include a search of civil, criminal, or bankruptcy proceedings in federal and state jurisdictions;regulatory filings;tax filings;lien,judgment and Uniform Commercial Code searches; business registrations, and the like; provided, however, that City's right to conduct its own due diligence shall not expand or deemed to expand the Acceptable Owner Criteria or impose additional criteria with respect to whether a proposed transferee constitutes an Acceptable Owner. City shall be entitled to engage an independent accounting firm,the reasonable costs of which shall be borne by Developer or such Proposed Major Transferee,to review the information upon which the Proposed Major Transferee's certifications were based,for the purpose of determining whether the certifications and/or information provided to the City is accurate and complete. Developer shall,or shall cause such Proposed Major Transferee to, reimburse City, upon demand,for any reasonable costs incurred by City in connection with such Transfer or proposed Transfer to a Proposed Major Transferee, including the reasonable out-of-pocket costs of making inquiries and investigations into the conformance with the Acceptable Owner Criteria of such Proposed Major Transferee and the reasonable legal costs incurred,if any,in connection therewith. E. Confirmation/Approval Process for Proposed Transferees: Regarding the City's confirmation that a Proposed Major Transferee is an Acceptable Owner,or the City's approval of a Transfer that is not a Permitted Transfer,the parties hereby agree that: 1. The City Manager shall rely solely on the Proposed Major Transferee's certification that the Proposed Major Transferee meets the Acceptable Owner Criteria (if a Permitted Transfer),along with the information provided by the Proposed Major Transferee and the results of any due diligence investigation performed by the City. 2. The City Manager shall not unreasonably withhold the City's confirmation if the Proposed Major Transferee complies with the Acceptable Owner Criteria. Page 893 of 2461 3. The 7City Manager shall not unreasonably withhold the City's Approval of a Transfer that is not a Permitted Transfer, except that with respect to a Transfer to a Foreign Instrumentality (other than a member country of the European Union, as existing on the Effective Date, United Kingdom, Canada, Norway and Mexico or Persons Controlled by any of the foregoing countries), such Transfer shall be subject to the prior written approval of the City Commission,which may be granted, conditioned or withheld by the City Commission in its sole discretion;and 4. If a proposed Transfer requires the City's confirmation or Approval, Developer shall deliver written notice to the City, which shall include (i) the name and address of theproposed transferee; (ii) the name and address of the proposed transferor; (iii) information describing the nature of the transaction; (iv) the percentage interest being conveyed; and (iv) the materials described in paragraph C above. 5. The City Manager shall have up to forty-five (45) days after the delivery of such written notice and the information required under paragraph C above, to determine whether, on a commercially reasonable basis,the Proposed Major Transferee meets the Acceptable Owner Criteria if a Permitted Transfer. The City Manager shall have up to sixty(60) days after the delivery of such written notice and the information required under paragraph C above whether to Approve in accordance herewith a Transfer that is not a Permitted Transfer. 6. Provided that no Event of Default is then continuing, Developer's request for confirmation that the Proposed Major Transferee meets the Acceptable Owner Criteria shall be deemed confirmed if the first correspondence from Developer to the City requesting such confirmation is in an envelope marked "PRIORITY" and contains a bold-faced,conspicuous (in a font size that is not less than fourteen (14)) legend at the top of the first page thereof stating that "THIS IS A REQUEST FOR CONFIRMATION OF A PERMITTED TRANSFER UNDER SECTION 5.4 OF THE DEVELOPMENT AGREEMENT, DATED AS OF ( ],2020,AND FAILURE TO RESPOND TO THIS REQUEST WITHIN FORTY- FIVE (45) DAYS WILL RESULT IN THE REQUEST BEING DEEMED CONFIRMED," and is accompanied by the information and documents required above and City fails to respond or to deny such request for confirmation in writing within such forty-five (45) day period. Provided that no Event of Default is then continuing, Developer's request for Approval of a Transfer that is not a Permitted Transfer shall be deemed Approved if the first correspondence from Developer to the City requesting such Approval is in an envelope marked"PRIORITY"and contains a bold-faced,conspicuous(in a font size that is not less than fourteen(14))legend at the top of the first page thereof stating that"THIS IS A REQUEST FOR APPROVAL OF A TRANSFER UNDER SECTION 5.4 OF THE DEVELOPMENT AGREEMENT, DATED AS OF [ ],2020,AND FAILURE TO RESPOND TO THIS REQUEST WITHIN SIXTY(60)DAYS WILL RESULT IN THE REQUEST BEING DEEMED APPROVED" and is accompanied by the information and documents required above and City fails to respond or to deny such request for Approval in writing within such sixty (60) day period. Any Transfer shall be subject to the deemed Approval provisions set forth above in this subparagraph E.6, provided, however, that the City Commission shall have sixty (60) days after receipt of written notice from Developer for Approval of any proposed Transfer to a Foreign Instrumentality(other than a member country of the European Union,as existing on the Effective Date, United Kingdom, Canada, Norway and Mexico or Persons Controlled by any of the foregoing countries), to approve or disapprove of such proposed Transfer,and if the City has not notified Developer,in writing, of the City Commission's approval of such Transfer within such sixty(60) day period, then such Transfer shall be deemed approved. Page 894 of 2461 7. If the City notifies Developer, in writing,within the first thirty (30) days of such forty-five(45)or sixty(60)day period,as applicable,that the information submitted is,on a commercially reasonable basis, incomplete or insufficient (and specifies in what ways it is incomplete or insufficient), then Developer shall supplement such information, on a commercially reasonable basis, and the City Manager (or City Commission, with respect to Transfers to Foreign Instrumentalities requiring City Commission approval) shall have twenty (20) days after such supplemental information is provided to make its determination whether the Proposed Major Transferee meets the Acceptable Owner Criteria or to Approve a Transfer that is not a Permitted Transfer. 8. If the City Manager does not confirm that the Proposed Major Transferee does not meet the Acceptable Owner Criteria or disapproves a Transfer that is not a Permitted Transfer, the City Manager shall provide to Developer specific written, commercially reasonable reasons for such action. The failure to object to the Proposed Major Transferee or Transfer within the applicable time period set forth above shall be deemed to be the confirmation by the City of the Proposed Major Transferee as an Acceptable Owner or Approval of the proposed Transfer, except with respect to a proposed Transfer to a Foreign Instrumentality(other than a member country of the European Union, as existing on the Effective Date,United Kingdom,Canada,Norway and Mexico or Persons Controlled by any of the foregoing countries), which the City Commission must expressly approve in writing, as provided above, in order for such Transfer to be effective. 9. No confirmation by the City of a Proposed Major Transferee as an Acceptable Owner or its meeting of the Acceptable Owner Criteria shall have the effect of waiving or estopping the City from later claiming that said Acceptable Owner is no longer developing,operating or maintaining the Project according to the terms of this Agreement. F. Interpretation: 1. All acts and omissions as well as rights and duties shall be done in a commercially reasonable manner, unless the standard of"sole discretion"is used. 2. The implied covenant of good faith and fair dealing under Florida law is expressly adopted. Page 895 of 2461 EXHIBIT"B-1" LEGAL DESCRIPTION OF THE LAND All of Lots 22 through 31, inclusive, and Lot 21, LESS the Southerly 40.00 feet thereof, in Block 111, of OCEAN BEACH,FLORIDA ADDITION NO. 3,according to the Plat thereof,as recorded in Plat Book 2, Page 81,of the Public Records of Miami-Dade County, Florida. Page 896 of 2461 SKETCH TO ACCOMPANY LEGAL DESCRIPTION ALTON ROAD EASTERLY LINE BLOCK 111 , . 1I[I \vIIItII tI IIIfII , -,41. I (r BLOCK 111 I 1 OCE4N BE4CH FLA. ADDITON NO. 3 l g PLAT BOOK 2, PAGE 81 1 g m I 33 232 \31 30 29 28I27 26 25 24 23 22 1 21 pZ i J7?,- I 1 E ' 2 I I H ' ----1 -' WESTERLY UNE BLOCK 111 LEGAL DESCRIPTION: 300-390 ALTON ROAD ALL OF LOTS 22 THROUGH 31, INCLUSIVE, AND LOT 21, LESS THE SOUTHERLY 40.00 FEET THEREOF, IN BLOCK 111, OF OCEAN BEACH, FLORIDA ADDITION NO. 3, ACCORDING TO THE PLAT THEREOF, AS RECORDED IN PLAT BOOK 2, PAGE 81, OF THE PUBLIC RECORDS OF MIAMI-DADE COUNTY, FLORIDA. SSA SCHWEBKE SHISKIN + ASSOCIATES (LB-87) LAND SURVEYORS • ENGINEERS • LAND PLANNERS 3240 CORPORATE WAY, MIRAMAR, FLORIDA 33025 DADE:(305) 652-7010 BROWARD:(954) 435-7010 FAX:(305) 652-8284 ORDER NO.: 212255 THIS IS NOT A "LAND SURVEY." DATE: JULY 21, 2020 SHEET 1 OF 1 SHEET(S) F B.: N.A. Page 897 of 2461 K:\035442\OCEAN BEACH FLA ADD 3\SURVEY\SKETCH LEGALS\DWG\Development Land 20200722.dwg,7/22/2020 12:31:45 PM,Bluebeam PDF EXHIBIT"B-2" LEGAL DESCRIPTION OF THE RESIDENTIAL PARCEL In accordance with Section 4.1(b)of this Agreement: A maximum of 0.3 acres of the following described land to consist of the to-be-designed lobby and ancillary areas of the residential portion of the Project: All of Lots 22 through 31, inclusive, and Lot 21, LESS the Southerly 40.00 feet thereof, in Block 111, of OCEAN BEACH, FLORIDA ADDITION NO. 3, according to the Plat thereof, as recorded in Plat Book 2, Page 81, of the Public Records of Miami-Dade County,Florida.TOGETHER WITH air space above such Lots to the extent required for the 275,000 square foot residential improvements to be constructed therein. The proposed design of the commercial and residential portion of the Project will evolve through the design development process and accordingly,the initial legal description of the Residential Parcel will be preliminary in nature and will be attached to this Agreement by amendment. The initial legal description will be consistent with the limitations contained herein and, in accordance with this Agreement,shall be sufficient to accommodate the design development for the residential portion of the Project and will thereafter be revised to conform to the updated and actual legal description thereof following receipt of all Governmental Approvals and following completion of the Project in accordance with this Agreement. Page 898 of 2461 EXHIBIT"C" COVENANT IN LIEU OF UNITY OF TITLE Prepared by and Return to: Raul J.Aguila,City Attorney City of Miami Beach 1700 Convention Center Drive,4th Floor Miami Beach, Florida 33139 (Space Reserved for Clerk) DECLARATION OF RESTRICTIVE COVENANTS IN LIEU OF UNITY OF TITLE KNOW ALL BY THESE PRESENTS that the undersigned Owners hereby make, declare and impose on the land herein described,the following covenants that will run with the title to the land,which shall be binding on the Owners, their heirs, successors, assigns, personal representatives, mortgagees and lessees, and against all persons claiming by,through or under any of them; WITNESSETH: WHEREAS,the Owners hold fee simple title to certain property in the City of Miami Beach,Florida, located at 300-390 Alton Road, Miami Beach, Florida, and which is legally described in Exhibit "A" attached hereto and made a part hereof(the"Property");and WHEREAS,the Owners and the City of Miami Beach, a Florida municipal corporation(the"City"), entered into that certain Development Agreement dated as of ,20 a memorandum of which is recorded in Official Records Book , at Page of the Public Records of Miami- Dade County(the"Development Agreement"');and WHEREAS,on [date]the Owners obtained approval of the Design Review Board(DRB) under File No. as recorded in Official Records Book at Page of the Public Records of Miami-Dade;and WHEREAS, the Owners may develop buildings on the Property for sale to multiple owners in a condominium or non-condominium format of ownership and/or in one or more phases;and WHEREAS,this instrument is executed in order to assure that the development of the property with future multiple ownership or phased development will not violate the Land Development Regulations of the City of Miami Beach. NOW THEREFORE,in consideration of the premises,the Owners hereby agree as follows: 1. After a site plan for the Property has been submitted and approved under the City's Land Development Regulations, the Property will be developed as a unified development site in substantial Page 899 of 2461 accordance with such approved site plan for the Property. No modification of such approved site plan shall be effectuated without the written consent of the then owner(s) of the portion or phase of the Property for which such proposed modification is sought and the Director of the City's Planning Department(such person,or any successor thereof,is referred to herein as the"Director"). No such then owner(s) nor the Director shall unreasonably withhold, condition or delay its consent, provided the proposed modification is in compliance with the Land Development Regulations. Should any such then owner(s)or the Director withhold,condition or delay its consent to any such proposed modification,then the owner(s) seeking the proposed modification shall be permitted to seek the same by application to modify the approved site plan at public hearing before the appropriate City board or the City Commission of Miami Beach, Florida (whichever by law has jurisdiction over such matters). If a public hearing is required, approval of such application shall be in addition to all other required approvals necessary for the proposed modification sought. Notwithstanding anything to the contrary contained in this Declaration: (a)if any building on the Property(or portion of a building)is developed and sold to multiple owners in a condominium format or non-condominium format of ownership with an owners' association, then only the owners' association (as opposed to each individual unit owner governed by the owners' association) shall be required to give,grant or execute any consent, approval or document required by this Declaration, and such consent, approval or document as given, granted or executed by the owners' association shall bind each and every individual unit owner in such building (or portion of the building) governed by the owners'association;(b)if the Property is developed in phases,then only the owner(s)of the phase(s)affected by the proposed modification shall be required to give,grant or execute any consent, approval or document required by this Declaration, and no consent, approval or document shall be required from the owner(s)of any phase(s) unaffected by.,such proposed modification shall be required; (c) the City shall not be required to obtain any consent, approval or document from any owner with respect to any proposed modification (including any subsequent zoning application) relating to the Park Project (as such term is defined in the Development Agreement); and (d) this Declaration of Restrictive Covenants in Lieu of Unity of Title(the "Declaration")shall not create any additional obligations for the Owners(or their respective successors and/or assigns)to obtain any consent,approval or document from the City with respect to any proposed modification(including any subsequent zoning application)relating to the "Development Site" (as such term is defined in the Development Agreement), other than the written consent of the Director for modifications to the approved site plan,as provided above. Nothing contained in the preceding sentence shall relieve the Owners(and their successors and assigns)from the obligation to obtain any approvals or authorizations from the City required by law or any other instrument or agreement apart from this Declaration. 2. If the Property is developed in phases, then each phase will be developed in substantial accordance with the approved site plan for the Property. 3. In the event the Owners shall convey any portion of the Property to any person or entity subsequent to site plan approval for the Property,each of the subsequent owners shall be bound by the terms,covenants,restrictions and limitations of this Declaration. Owners further agree that they will not convey portions of the Property to any other person or entity unless and until the Owners and such other person or entity shall have mutually executed and delivered, in recordable form, an instrument to be known as an"easement and operating agreement"which shall contain,among other things,the following easements to the extent required for the Property to be developed, constructed, conveyed, maintained and operated in accordance with the approved site plan for the Property despite the Property having multiple owners: Page 900 of 2461 (i) Easements in the common area of each parcel for ingress to and egress from the other parcels; (ii) Easements in the common area of each parcel for the passage and parking of vehicles: (iii) Easements in the common area of each parcel for the passage and accommodation of pedestrians; (iv) Easements for access roads across the common area of each parcel to public and private roadways; (v) Easements for the installation, use, operation, maintenance, repair, replacement, relocation and removal of utility facilities in appropriate areas in each such parcel; (vi) Easements on each such parcel for construction of buildings and improvements in favor of each such other parcel; (vii) Easements upon each such parcel in favor of each adjoining parcel for the installation, use, maintenance, repair, replacement and removal of common construction improvements such as footings,supports and foundations; (viii) Easements on each parcel for attachment of buildings; (ix) Easements on each parcel for building overhangs and other overhangs and projections encroaching upon such parcel from the adjoining parcels such as, by way of example, marquees,canopies,lights,lighting devices,awnings,wing walls and the like; (x) Appropriate reservation of rights to grant easements to utility companies; (xi) Appropriate reservation of rights to grant road rights-of-way and curb cuts; (xii) Easements in favor of each such parcel for pedestrian and vehicular traffic over dedicated private ring roads and access roads; and (xiii) Appropriate agreements between the owners of the several parcels as to the obligation to maintain and repair all private roadways,parking facilities,common areas and common facilities and the like. These easement, reservation and agreement provisions (or portions thereof) will be waived by the Director if they are not applicable to the portion of the Property then being conveyed (such as, but not limited to,conveyances to purchasers of individual condominium units,or conveyance that are separated by a street or road). These easement,reservation and agreement provisions shall not otherwise be waived or amended without prior written approval of the City Attorney. In addition,the easement and operating agreement shall contain such other provisions with respect to the development, construction, conveyance,maintenance and operation of the Property as to which the parties thereto may agree, all to the end that although the Property may have several owners,it will be developed,constructed,conveyed, maintained and operated in accordance with the site plan approved for the Property. 4. The provisions of this Declaration shall become effective upon their recordation in the public records of Miami-Dade County, Florida,and shall continue.in effect for a period of thirty(30)years after the date of such recordation, after which time they shall be extended automatically for successive periods of ten (10) years each, unless released in writing by the then owner(s) of the Development Site and the Director(acting for and on behalf of the City)upon the demonstration and affirmative finding that the same is no longer necessary to preserve and protect the Development Site for the purposes herein intended. 5. The terms, covenants, restrictions and limitations of this Declaration may be amended, modified or released by a written instrument executed by the then owner(s) of the Development Site (with joinders by all mortgagees) and the Director (acting for and on behalf of the City). Should this Declaration be so modified, amended or released, then the Director shall forthwith execute a written Page 901 of 2461 instrument effectuating and acknowledging such amendment, modification or release; it being acknowledged and agreed that no amendment, modification or release of this Declaration shall be effective without the Director's written approval of,or execution of a written instrument effectuating and acknowledging, such amendment,modification or release. 6. Enforcement of the terms,covenants,restrictions and limitations of this Declaration shall be by action against any parties or persons violating or attempting to violate any such terms,covenants, restriction or limitation of this Declaration.The prevailing party to in action or suit pertaining to or arising out of this Declaration shall be entitled to recover,in addition to costs and disbursements,allowed by law, such sum as the Court may adjudge to be reasonable for the services of his attorney.As used herein,the term "prevailing party" means the party who receives substantially the relief sought upon final, non- appealable judgment,order, or other disposition of a court of competent jurisdiction. This enforcement provision shall be in addition to any other remedies available at law, in equity or both. 7. Invalidation of any term,covenant, restriction or limitation of this Declaration by a final, non-appealable order of a court of competent jurisdiction shall not affect any of the other term,covenant, restriction or limitation of this Declaration, all of which shall remain in full force and effect. 8. This Declaration shall be recorded in the public records of Miami-Dade County at the Owners'expense. 9. All rights,remedies and privileges granted herein shall be deemed to be cumulative and the exercise of any one or more shall neither be deemed to constitute an election of remedies, nor shall it preclude the party exercising the same from exercising such other additional rights, remedies or privileges. 10. In the event of any violation of this Declaration, in addition to any other remedies available,the City is hereby authorized to withhold any future permits,and refuse to make any inspections or grant any approval,until such time as this Declaration is complied with. 11. This Declaration is recorded for the limited purpose of ensuring that the Property is developed as a unified development site under the City's land development regulations and is not intended to and does not modify,limit,or derogate any rights or privileges that may benefit the Property or any portion thereof, including, without limitation, any available exemption from or reduction in ad valorem taxation and assessments, nor does this Declaration prohibit the division of the Property into independent tax parcels and folios as the Owner may deem necessary or appropriate in its sole discretion, and all such rights and privileges are hereby expressly reserved. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK—SIGNATURE PAGES TO FOLLOW] Page 902 of 2461 Signed, witnessed, executed and acknowledged on this day of [*Note:All others require attachment of original corporate resolution of authorization] WITNESSES: OWNER: Signature Individual Signature Print Name Print Name Signature Name of Corporate Entity Print Name Position with Corporate Entity(Prez.VP,CEO) Address: STATE OF COUNTY OF The foregoing instrument was acknowledged before me, by means of[ ] physical presence or I ]online notarization,by , who is personally known to me or has produced ,as identification. Witness my signature and official seal this day of , in the County and State aforesaid. My Commission Expires: Notary Public-State of Print Name Page 903 of 2461 Signed, witnessed, executed and acknowledged on this day of WITNESSES: OWNER: Signature Individual Signature Print Name Print Name Signature Print Name Address: STATE OF COUNTY OF The foregoing instrument was acknowledged before me, by means of[ 1 physical presence or [ online notarization,by , who is personally known to me or has produced ,as identification. Witness my signature and official seal this day of . in the County and State aforesaid. Notary Public-State of My Commission Expires: Print Name Approved: Approved as to form&language&for execution: Director of Planning Date City Attorney Date Page 904 of 2461 EXHIBIT A TO COVENANT IN LIEU OF UNITY OF TITLE PROPERTY DESCRIPTION • [see attached] Page 905 of 2461 EXHIBIT"D" LEGAL DESCRIPTION OF CITY ROW AREA [see attached] Page 906 of 2461 SKETCH TO ACCOMPANY LEGAL DESCRIPTION ss.‘.......T.' / �` J L1/i - ALTON ROAD EASTERLY LINE BLOCK 111 -i-- \ - ---, '.\\ , l -4.- BLOCK 111 OCEAN BEACH FLA. ADDITION N0. 3 PLAT BOOK 2, PAGE 81 i$ J m N N M I- 33 -,32 31 30 29 28 27 26 25 24 23 22 21 Z J —, tn N a I I - , I , , , . , ----1 WESTERLY LINE BLOCK t111 LEGAL DESCRIPTION: PORTION OF ALTON ROAD RIGHT-OF-WAY ADJACENT TO 300-390 ALTON ROAD: ALL THAT PORTION OF ALTON ROAD LYING WESTERLY OF THE CENTERLINE AND DING EASTERLY OF, AND ADJACENT TO, LOTS 22 THROUGH 31, INCLUSIVE, AND LOT 21, LESS THE SOUTHERLY 40.00 FEET THEREOF, IN BLOCK 111, OF OCEAN BEACH, FLORIDA ADDITION NO. 3, ACCORDING TO THE PLAT THEREOF, AS RECORDED IN PLAT BOOK 2, PAGE 81, OF THE PUBLIC RECORDS OF MIAMI-DADE COUNTY, FLORIDA. SSA SCHWEBKE SHISKIN + ASSOCIATES (LB-87) LAND SURVEYORS • ENGINEERS • LAND PLANNERS 3240 CORPORATE WAY, MIRAMAR, FLORIDA 33025 DADE:(305) 652-7010 BROWARD:(954) 435-7010 FAX:(305) 652-8284 ORDER NO.: 212255A THIS IS NOT A "LAND SURVEY." DATE: JULY 21, 2020 SHEET 1 OF 1 SHEET(S) F B,: N.A. Page 907 of 2461 K:\035442\OCEAN BEACH FLA ADD 3\SURVEY\SKETCH LEGALS\DWG\Right-of-Way 20200721.dwg,7/22/2020 8:26:57 AM,Bluebeam PDF EXHIBIT"E-1" ARTICLES OF ORGANIZATION OF RESIDENTIAL DEVELOPER [see attached] Page 908 of 2461 EXHIBIT"E-2" ARTICLES OF ORGANIZATION OF COMMERCIAL RETAIL DEVELOPER [see attached] Page 909 of 2461 EXHIBIT"F" MANDATORY PROJECT ELEMENTS (a) • Commercial Retail Improvements and Commercial Retail Project, including Park Project. (1) The Commercial Retail Improvements shall have(y)approximately 45,000 square feet of neighborhood-oriented retail uses,cafes and/or restaurants and office and marina uses and(z)any outdoor seating created in connection with such uses; provided, however, the Commercial Retail Improvements shall not include any free-standing outdoor bars or entertainment (unless otherwise permitted by the City Code)or other uses prohibited by the Marina Lease. (ii) The Commercial Retail Improvements shall include approximately 100 parking spaces for use by the marina and Commercial Retail Premises [to replace the parking spaces within the Existing Improvements] [OPEN]and drop off area for valet to serve the Commercial Retail Improvements and other[operational amenities of the marina including short term loading/uniading/delivery for marina tenants,office/retail tenants,and an area (with adequate turn ratios)to handle fuel tractor trailer,box trucks and vessel provisioning vehicles located on the north side of the Podium and Tower.][OPEN] (iii) The Commercial Retail Improvements shall include a publicly accessible restroom facility,which,at Developer's election,may be located within the Park Project. (iv) The Commercial Retail Improvements shall include the Green Space and the Park Project; provided however, and notwithstanding anything to the contrary contained in this Agreement, those areas of the Green Space that do not constitute the Park Project are not required to be completed until Completion of Construction of the entire Project. The Certificate of Occupancy—Park shall be issued no later than the Park Project Completion Date. (v) The ground floor footprint of the Podium shall not exceed 45,000 gross square feet(exterior wall to exterior wall). (vi) Baseline Park. (b) Residential Improvements and Residential Project. (i) The Residential Improvements shall include up to 60 residential units constructed within approximately 275,000 gross square feet of residential building development and associated infrastructure; provided, however, that the total floor area of the Residential Improvements and the Commercial Retail Improvements shall not exceed 319,802 square feet. (ii) The Tower shall not exceed 120 feet by 120 feet in width from 66'NGVD and shall not exceed 385 feet in height(as measured from Base Flood Elevation plus maximum Freeboard(BFE+5 feet),and further,as provided in the City's Land Development Regulations,including Section 142-1161 of the City Code), and any architectural projections thereof will comply with the terms of this Agreement and other applicable provisions of the City's Land Development Regulations. (c) Tapering. The Podium shall taper[with increasing setbacks from the ground floor until it is less than the width of the Tower][OPEN]. EXHIBIT"G" Page 910 of 2461 FORM OF MARINA LEASE [see attached] (Marina Lease is attached as Exhibit 5 to the consolidated Commission Memorandum for the Marina Park Project,to which this Development Agreement is attached) Page 911 of 2461 EXHIBIT"H" PUBLIC BENEFIT IMPROVEMENTS • Resiliency Features and Improvements for the Park: o A stormwater management system capable of retaining and disposing runoff in accordance with the City of Miami Beach as well as the F-DOT design storm requirements. • Miami-Dade County RER(DERM)5-Year, 1-Hour 3.2" rainfall storm • Miami-Dade County RER(DERM)5-Year,24-Hour,6"rainfall storm • City of Miami Beach 10-Year,24-Hour,8.75"rainfall storm (which includes a 1.25 factor of safety) • FDOT 100-Year,24-Hour, 13" rainfall storm o Water management for park on-site stormwater,which may include: • The topography sloped and pitched to manage the water quality interface between stormwater,groundwater and baywater. • Cistern to capture water runoff during storm events and provide reuse opportunity to irrigate planting. o The park will provide different areas to include open green spaces,benches,drinking fountains,outdoor living rooms enclosed with landscaping. o Provide landscape to encourage habitat areas for pollinators, including at least 70% of plants and trees to be native. o Provide lighting to limit backlight, up light and glare, within temperature ranges in accordance with City safety requirements,including but not limited to light poles,lighted bollards and landscaping lighting. o Information and educational signage to be installed to inform and inspire the public about resiliency and sustainability efforts being made in the property/park. • Water quality improvements for offsite stormwater management,which shall include the following, provided funding is available: o Cistern to capture water runoff during storm events and provide reuse opportunity to irrigate planting. o Stormwater water management for water quality to be for a total capacity of 16,000 GPM;with an aspirational goal to achieve 24,000 GPM (construction and installation only;City to maintain all wells and stormwater management facilities associated with this requirement) • Alton Road ROW Enhancements • Baywaik Enhancements in front of Area 1 and Area 9,exclusive of the sea wall,bulkhead, rip-rap and associated support structures,which may include: o Pavers, lighting,benches,and landscaping • Artwork spent on project above and beyond the AIPP requirements Page 912 of 2461 EXHIBIT"I" PROJECT CONCEPT PLAN [see attached] Page 913 of 2461 . . ,. • . ,,....: 4 ,, ,4,.. •10-ii11.1t,k,it•gi•Of.7'.''.:•:•::,-i • t3- Jr '''::).•ii'cATIN•i:."'7i••;,, ' :. '''' . .i':•'''' ' ' '..t., i;,..,. 9..... ,V11% ..• Of" 4 :I' • , •...a._—.--,— MP . • . . . . ,•:,.. MP OP. ,ullif#10g/k• • ' — • L -:••• . .:•;. ..11-.riv,",,,4,.' '•. ',/,' .," ''..k•'1-.,',110.;,....,r'Ke.41.1i 0 ,., ' 7.•::,, ,M; ' • . .t. , '''—;' ,•."• .• I Z.. ..- . .. 4 • '42 I I • 1 l''' • ' di ,1 •'"': . , , ..• ": V . • A''.1'4•11: [C' 4''''' II 4' • . .. „ -• ...,•.','• '",,,i, • • rg • . •-.• ` ''jv.. :t. Y ;".: • 1 0' .• .,.' ' 0 .. .. ...f.x.,. ,;.,•, • • :, .„ Sr; p,... . .••• . -, ''4,„., .. •„,-., ... • - , ...7 4..^• • •,,,7', .... -. .,1 ,.....lt '.,,44,..i.A'':!..... —''• .;:;.4,c..•,. ../1. . . .. ' , ,,•••4.,.0.1•••,... .?••• - • '• ., .: , .• L. ,•., 1.4.-t.'.:,.,..••• 1.•• /.„ 7A . i sl I ..'-' • f "C. .. .. % -,. g . a• • —•-=.'- ' - st• co •P A , •' —:• ' — • 1, 4 ...., , I ,i,.. • -- - N3 . A c e • _. . .di . 0 -- i • 8 f ... . •-..... .., -.----..-'- -..,..„1. .‘-'''',- .,", ..-.. . . . '.......'. 3 V: ' • ,i I • 4'1',1, 1 I:' Ili' . . • ' •• •11 4--4-•' T '., %. '' ''' d:,''6, 0'7' •1 •'. .• • ,r'"V; ^-.1 $1, :• • • ; .1.i',.t`1,'" 1 .'• '''-"• ';'.' ,'''. ..'S.;..'' :.--..!.f. •, \.., .• .• . . . - . • .....-',''f•......1, TS' •,:-'• '14,,i1 ..'.. ,. tl'i.•;'' ., IV'r...••/';;;;:". "i'[,;'4,"1.."0:1.-117;,,,,,,,'- '' .. , 44in".•• , ,.!• • i.,, , -N.. . , a • ho • 1 , . . .. .. . "..: 44FGA 41MEJJ Earg31 4171 Wri 4IZNED 1:11/111° Urillill UM3111° :1E1310 4MK:1:1 411r2 Olara 44111:ra r4310. 41111Er•I 4WD MARINA PARK-CONCEPT SITE PLAN . . , . . „ ., 4CF2 447.11ra , .,. , .• ' • ,• - ' ' .Itlf-i---7-ai:..•. _._ _ EXHIBIT"J" FORM OF PURCHASE AND SALE AGREEMENT [see attached] (Purchase and Sale Agreement is attached as Exhibit 4 to the consolidated Commission Memorandum for the Marina Park Project,to which this Development Agreement is attached) Page 915 of 2461 EXHIBIT"K" FORM OF RECIPROCAL EASEMENT AGREEMENT [see attached] (Reciprocal Easement Agreement is attached as part of Exhibit 4 to the consolidated Commission Memorandum for the Marina Park Project,to which this Development Agreement is attached) Page 916 of 2461 EXHIBIT"L" LEGAL DESCRIPTION OF COMMERCIAL RETAIL PREMISES In accordance with Section 4.1(a) of this Agreement,the Commercial Retail Premises will include up to 45,000 square feet of the Land for the commercial portion of the Project, and the legal description thereof will be incorporated into this Agreement following Design Review Board Approval of the Project and shall be subject to further revision upon Completion of Construction of.the Project in accordance with Section 2.20 of this Agreement. Page 917 of 2461 EXHIBIT"M" PRESENTLY PERMITTED DEVELOPMENT (a) Permitted Development and Uses. The Development Site is currently located within the GU zoning district. The development regulations in the GU district are the average requirements contained in the surrounding zoning districts. The Development Site is surrounded by property zoned C-PS4, and as such,the C-PS4 zoning district regulations apply to the adjacent GU district. The main permitted uses in the City's GU District are government buildings and uses, including but not limited to parking lots and garages; parks and associated parking;schools; performing arts and cultural facilities; monuments and memorials. Any use not listed above shall only be approved after the city commission holds a public hearing. For the avoidance of doubt, no additional public hearing shall be required for approval of the uses authorized by the Development Agreement, following the City Commission's approval,following two readings/public hearings, of the Development Agreement, which shall be deemed to satisfy the public hearing requirement in Section 142-422 of the City Code. (b) Density.Building Heights,Setbacks and Intensities.The maximum density,heights, setbacks and intensities for any development on the Development Site shall be regulated by the City's Land Development Regulations, Comprehensive Plan and any Governmental Requirements. The maximum floor area ratio in the C-PS4 district is 2.5.Building height requirements are as follows:385 feet maximum height. The development regulations (setbacks,floor area ratio, signs, parking, etc.) shall be the average of the requirements contained in the surrounding zoning districts as determined by the City's Planning and Zoning Director. Notwithstanding the foregoing,the permitted height for the Project shall not exceed 385 feet, measured from Base Flood Elevation plus maximum Freeboard (BFE+ 5 feet), and further, as provided in the City's Land Development Regulations, including, without limitation, Section 142-1161 of the City Code. This Agreement permits the following development on the Development Site: (i)up to 60 residential units, including single-family detached dwellings,townhomes,condominiums,and apartments;and(ii)approximately 45,000 square feet of retail,office and restaurant uses. The total floor area to be developed on the Development Site shall not exceed 319,802 square feet. THIS EXHIBIT DESCRIBES THE PRESENTLY PERMITTED DEVELOPMENT FOR PURPOSES OF THE ACT ONLY. THE PROJECT SHALL CONFORM TO THE DESCRIPTION, TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT. Page 918 of 2461 EXHIBIT"N" REQUIRED DEVELOPMENT PERMITS AND VARIANCES The following constitutes a generalized list of local permits anticipated as necessary to be approved by the terms of this Agreement: 1. Design Review Board,Planning Board, and/or Board of Adjustment approvals,pursuant to Chapter 118 of the City of Miami Beach Code. 2. Utility Permits 3. Demolition Permits 4. Building Permits 5. Environmental Permits 6. Hazardous Materials Removal Permit,if removal of hazardous materials is found necessary. 7. Public Works Permit,Paving and Drainage 8. Public Works Permit,Water and Sewer 9. Public Works Revocable Permits 10. Certificates of Use and/or Occupancy 11. Any variances or waivers that may be required pursuant to Chapters 114 through 142 of the City of Miami Beach Code 12. All other governmental approvals as may be applicable to the subject property from time to time pursuant to the terms of this Development Agreement,including but not limited to restrictive covenants in lieu of unity of title Page 919 of 2461 EXHIBIT"0" PUBLIC FACILITIES The proposed development will be serviced by those roadway transportation facilities currently in existence as provided by state, county, and local roadways. The proposed development will also be serviced by public transportation facilities currently in existence,as provided by Miami-Dade County,the City of Miami Beach,and such other governmental entities as may presently operate public transportation services within the City of Miami Beach. Sanitary sewer, solid waste,drainage,and potable water services for the proposed development shall be those services currently in existence and owned or operated by Miami-Dade County,the Miami-Dade County Water and Sewer Department,the City of Miami Beach,and State of Florida. The proposed development shall be serviced by those existing educational facilities owned or operated by the Miami-Dade Public Schools District, if applicable. The proposed development shall be serviced by those existing parks and recreational facilities owned or operated by the United States Government within Miami Dade County, by the State of Florida, by Miami-Dade County, and by the City of Miami Beach. The proposed development shall be serviced by those existing health systems and facilities operated by the United States Government within Miami-Dade County, by the State of Florida, by Miami-Dade County,and by the City of Miami Beach. The proposed development will also be serviced by any and all public facilities,as such are defined in Section 163.3221(13) of the Act, that are described in the Comprehensive Plan, specifically including those facilities described in the Infrastructure Element and the Capital Improvements Element therein,a copy of which is available for public inspection in the offices of the City Clerk of the City of Miami Beach. Notwithstanding the foregoing, the Project may be required to provide for some of its own services, including solid waste removal and stormwater drainage. The foregoing, however,shall not be deemed to be an approval of, nor shall it be deemed to relieve Developer of the obligation to comply with Section 163.3180, Florida Statutes. ADSLIP-00079793.16 Page 920 of 2461 1 EXHIBIT"P" PUBLIC RESERVATIONS AND DEDICATIONS 1. Upon delivery of the completed Park Project to the City,the Park will be dedicated as a public park for the benefit of the general public pursuant to Section 4.1(e);and 2. Easements or reservations contemplated under Section 4.1(c)and Section 4.1(d) of this Agreement. ADSLLP-00079793.16 Page 921 of 2461 EXHIBIT"Q" SHELL AND CORE IMPROVEMENTS OF BASELINE COMMERCIAL BUILDING 1. The structure,including columns,girders,beams,joists,and roof deck. 2. Masonry or concrete exterior walls. 3. Floor:Concrete slab shall be provided by Developer. 4. Egress Door: Egress will be provided per City Code requirements. 5. Electrical Service: Developer shall provide empty conduit for electrical service. Distribution within the tenant space to be by tenant. Electrical panel by tenant. 6. Telephone: Developer shall provide one(1)empty conduit from point of service to a location within the tenant space. 7. Water: Developer will bring domestic water and sanitary sewer lines to each tenant space. 8. Storefront: Developer shall provide code-compliant storefront system. 9. Heating,Ventilation and Air Conditioning: Developer will provide a supply and return line from the base building system stubbed into the tenant space and valved off. Each tenant will be required to provide its own A/C system. 10. Sprinkler System:Code-compliant sprinkler system to be provided by Developer. The foregoing specifications shall be subject to change and in accordance with applicable City Code requirements. ADSLLP-00079793.16 Page 922 of 2461 EXHIBIT"R" OWNERSHIP INTERESTS IN DEVELOPER [see attached] ADSLLP-00079793.16 Page 923 of 2461 EXHIBIT"S" CONSTRUCTION AGREEMENT REQUIRED CLAUSES (a) The City shall be named as an additional insured on all insurance required by such Construction Agreement and under which the Developer is an additional or named insured. (b) The Construction Agreement shall contain usual and customary warranties by the Contractor in favor or the Developer and the City (including a warranty against defective workmanship) for a period of not less than one year following substantial completion of the Project or applicable portion thereof. ADSLLP-00079793.16 Page 924 of 2461 EXHIBIT"T" FORM OF PERFORMANCE BOND AND PAYMENT BOND liAl ® Document A312 TM- 2010 Payment Bond CONTRACTOR: SURETY: (Name, legal status and address) (Name, legal status and principal place of business) •---..,.,:• -,(-:- ,i,._:-...7,- .:A.,:, 7,::.,1:: ,,s.::1 7:.,- ....:Fi,:,.:':,-,i,y5,:::,all 4' 't-,'.. , __,,,,,:-.,r.,.... -_-_.:*.' ',--a:',L...",;;;);;;;", 7",t,..... , .:.r:% :. : -, ,=;:;,'-'.1E7•,' 7,fr-4'''....:..:"'Y9.4.); ‘-tt'4Zt'Ttlifli;' ,-F,Off.01,-:45iZA';.4114 :i. *; :-4:1.S4Tke.10,14T,Wirg:.‘A.;gittilitCiiiiiter4i;,:;;e4 3%. !":1 ':'t T.*',A C7-';:,Te''V:tZnZSgAZ:4c.:fiaieii "':4P-'SVetif4-76:i ii4A '1:20.1N.1,44K4'.54A4i0.!t*:4ZIW; 4•.;:?--170-.:'•'11:fil OWNER: (Name,le:al status and address) ,• ;_-.-•:-.4...-.4 -----'-'-11:1-Wpr.lii---4.30'(.:1,--V-,,w,-2-4--'-'-r•-'7.- • ------wr411;*--" '4,....e:-4-.:'r.„-_. .,4-2,,A,,w_ .......a.::,,-- ------1,......„,4:-..w,:gy....,-- --_,77,—..--:,----,-.„. ,_,,.,_ ,,:,‘,:„, „,,....„.„:._:,,-5.,..0„.....„.„,...,,,...,..„.4,,, .1.427-47-sta;.-yireck.v.t-7-*,•i-k-v..,.. .0-:.•.P-Z77--.Yfr(W-m .:":.:.q -;Te-,•.,,,,,..ft-,t..:: 4.:! , .1.:,:-:---7.7,/,'-xyr.W.t...:-,!.--,,=.-4,-.., -gt;:.,_,!;!..,:,.:e,.. .,4.,..;,_ ...,,, . „4,,,...„/,‘..• •!•1,,.,4,....we,...,,,...4 .r.,at.•,,,,,,v....;.-z4,,,,Lt,r,,.9...„ :,,,t r._.a..':;-...,1.,./..w:',4;..0a4141., ,o::...:•;1,-,.'.y,!:-1:?-!4•!--re,,,,!.41, -.R.i1".. .;-7.7.ya74.7,7.i:'...p-frze,.._Ot'-'4 .::.i.Wri:#01:-;1;;C.:;t7v4Ni•IrPt7...A:kg',';.zi':7M CONSTRUCTION CONTRACT Date:iffli Amount:$ Description: (Name and location) ,t.„.4.3i:t 4...N•:,____„-- ---,;,,,..•,-.Kft„ ,i;•1-..v.-E,.9.,• - --,7.1, ...:tiL4e1w-LTli...1,4,7'`,7',,, •:f..&TEile.‘,'7;;:e."'''-i•,,...--14.vr, '-`---;V4V7i' A--.','-' ,;!:tri.r." . Vain', , ''VA"kr..'"I'ti-r'""Wr-t''''ill•''':';'''''''--•*1-'--''''''V'4.'-'-7--4c 1.4,6ve.,--;./. . 1-.-='1'..V.A.---rz,-4:-,-,--,L';'--..f' '-''.41...,:; :::.,..ir.. "t,:';.4. --.. .4, ..1.,..t--6 1„,,,,-Itd.:74' ..Z._,M,16,,,,,,,,z-,,, VOA:::,.1- ri.f.1,7,.....,0.„4.;- .t1„;:kg;t10_-;1.,....,.;_:,,r.I., ,.,4T-,S,t,,,-;g::::S1 .:;.OW 44*,.--,-,1/4-5.,..,',Az_-,44e',1:5;zrEAT.•',7;,0 BOND Date: (Not earlier than Construction Contract Date) 0 Amount:$a Modifications to this Bond: a None I See Section 18 CONTRACTOR AS PRINCIPAL SURETY Company: (Corporate Seal) Company: (Corporate Seal) Signature: Signature: ,. ,_---4--,y,s,,,-. ...p,Atpi.--r - ,rif •----- - - -,',- 1,.,,?,.1."!----• R 4'1: " ,N`,..2. Name and aiiiirglAtt---- - ., Name and Title: ktior*':'T.' t',':,;•f'1.74i=zc,.;',r:4.f.p.:.:,,,v-*4 Title: (Any additional signatures appear on the last page of this Payment Bond.) (FOR INFORMATION ONLY—Name,address and telephone) AGENT or BROKER: OWNER'S REPRESENTATIVE: (Architect,En:ineer or other'arty.) r- • '3,-::;_u.,}u.t.:;:iffeY.iizrAq,:;,. :t.ii,::.t.-„'....;'--7-. •-•c-if '' -, ',.- .-_:,..-7i'l,a.z•-•-,4_-::,..:4,Witig 4.-Sflift,11;Lit:•532; ' ft7';;•*-A:.t._€-_-.. .4M.'i ,- r.p.:.?._17.:--,,fa : ;,-..,,;! ,--ft--4.4..;'..--,i,r;„*&.;:g.,....!.:40t.,,!..,wzl-A-1 .*::,...,ir-,-,--7AFJz,..,5c--3-T,::;.,,,,:v.y..w.A,-.4. ,..,: :.=--ri?"V.§)a 4,;--, /;:;•,_15,-,.,--toi : v. e7„19-,,,,,z-41.4.,,,i3e;,. .,,Ftv -ifio 1:.Ti-i--Kg-,... .-- 14,7&-0-a;9..:-,-..--;Tret: ,Wif: ,:_ :---__TA,,,,A-. ,-.-.-:, -.-o-----:-.ic-:, -.-r .---.. r ‘,1---T. ...-`- '''%.FTW it:v.7W.4 A.•A-7- , ,..,„..r? . ,..,._ •:-.,-.Tk-,,,,-,sr.K:i-kr_:2*---,- ...1.1.....4-2-7.7.4..•,-1--:V.%.,...W „,..:•:,L73...,... - -,-,5-r--.._ _____-,..------',..`..-- -'-..-:-'.1- -e'zi- .-r-I--•• -N. ; .- --ipi:.4.•:-w:4-A.:01^ .9k.,.,___,... 1,..F:a_ 4,,,,,,61-4 --*.ma 1. ,FIcr• _,.,„ ADSLLP-00079793.16 Page 925 of 2461 §1 The Contractor and Surety,jointly and severally,bind themselves,their heirs,executors,administrators,successors and assigns to the Owner to pay for labor, materials and equipment furnished for use in the performance of the Construction Contract,which is incorporated herein by reference,subject to the following terms. §2 If the Contractor promptly makes payment of all sums due to Claimants, and defends, indemnifies and holds harmless the Owner from claims,demands,liens or suits by any person or entity seeking payment for labor,materials or equipment furnished for use in the performance of the Construction Contract, then the Surety and the Contractor shall have no obligation under this Bond. §3 If there is no Owner Default under the Construction Contract,the Surety's obligation to the Owner under this Bond shall arise after the Owner has promptly notified the Contractor and the Surety (at the address described in Section 13) of claims, demands, liens or suits against the Owner or the Owner's property by any person or entity seeking payment for labor, materials or equipment furnished for use in the performance of the Construction Contract and tendered defense of such claims,demands,liens or suits to the Contractor and the Surety. §4 When the Owner has satisfied the conditions in Section 3,the Surety shall promptly and at the Surety's expense defend,indemnify and hold harmless the Owner against a duly tendered claim,demand,lien or suit. §5 The Surety's obligations to a Claimant under this Bond shall arise after the following: §5.1 Claimants,who do not have a direct contract with the Contractor, .1 have furnished a written notice of non-payment to the Contractor,stating with substantial accuracy the amount claimed and the name of the party to whom the materials were, or equipment was, furnished or supplied or for whom the labor was done or performed, within ninety(90)days after having last performed Iabor or last furnished materials or equipment included in the Claim;and .2 have sent a Claim to the Surety(at the address described in Section 13). §5.2 Claimants,who are employed by or have a direct contract with the Contractor,have sent a Claim to the Surety (at the address described in Section 13). §6 If a notice of non-payment required by Section 5.1.1 is given by the Owner to the Contractor,that is sufficient to satisfy a Claimant's obligation to furnish a written notice of non-payment under Section 5.1.1. §7,When a Claimant has satisfied the conditions of Sections 5.1 or 5.2, whichever is applicable, the Surety shall promptly and at the Surety's expense take the following actions: - §7.1 Send an answer to the Claimant, with a copy to the Owner,within sixty (60)days after receipt of the Claim, stating the amounts that are undisputed and the basis for challenging any amounts that are disputed;and §7.2 Pay or arrange for payment of any undisputed amounts. §7.3 The Surety's failure to discharge its obligations under Section 7.1 or Section 7.2 shall not be deemed to constitute a waiver of defenses the Surety or Contractor may have or acquire as to a Claim,except as to undisputed amounts for which the Surety and Claimant have reached agreement.If,however,the Surety fails to discharge its obligations under Section 7.1 or Section 7.2, the Surety shall indemnify the Claimant for the reasonable attorney's fees the Claimant incurs thereafter to recover any sums found to be due and owing to the Claimant. §8 The Surety's total obligation shall not exceed the amount of this Bond,plus the amount of reasonable attorney's fees provided under Section 7.3,and the amount of this Bond shall be credited for any payments made in good faith by the Surety. §9 Amounts owed by the Owner to the Contractor under the Construction Contract shall be used for the performance of the Construction Contract and to satisfy claims,if any,under any construction performance bond.By the Contractor furnishing and the Owner accepting this Bond,they agree that all funds earned by the Contractor in the performance of the Construction Contract are dedicated to satisfy obligations of the Contractor and Surety under this Bond,subject to the Owner's priority to use the funds for the completion of the work. ADSLLP-00079793.16 Page 926 of 2461 §10 The Surety shall not be liable to the Owner,Claimants or others for obligations of the Contractor that are unrelated to the Construction Contract.The Owner shall not be liable for the payment of any costs or expenses of any Claimant under this Bond, and shall have under this Bond no obligation to make payments to, or give notice on behalf of, Claimants or otherwise have any obligations to Claimants under this Bond. §11 The Surety hereby waives notice of any change to the Construction Contract,or to related subcontracts,purchase orders and other obligations,including,without limitation,changes to the work to performed under the Construction Contract,changes to the Contract Price of the Construction Contract or changes to the time within which the work under the Construction Contract is to be performed,and the obligations of the Surety and this Bond shall in no way be impaired by any such changes. §12 No suit or action shall be commenced by a Claimant under this Bond other than in a court of competent jurisdiction in the state in which the project that is the subject of the Construction Contract is located or after the expiration of one year from the date(1)on which the Claimant sent a Claim to the Surety pursuant to Section 5.1.2 or 5.2, or(2)on which the last labor or service was performed by anyone or the last materials or equipment were furnished by anyone under the Construction Contract,whichever of(1)or(2)first occurs. If the provisions of this Paragraph are void or prohibited by law, the minimum period of limitation available to sureties as a defense in the jurisdiction of the suit shall be applicable. §13 Notice and Claims to the Surety,the Owner or the Contractor shall be mailed or delivered to the address shown on the page on which their signature appears. Actual receipt of notice or Claims, however accomplished, shall be sufficient compliance as of the date received. §14 When this Bond has been furnished to comply with a statutory or other legal requirement in the location where the construction was to be performed,any provision in this Bond conflicting with said statutory or legal requirement shall be deemed deleted herefrom and provisions conforming to such statutory or other legal requirement shall be deemed incorporated herein.When so furnished,the intent is that this Bond shall be construed as a statutory bond and not as a common law bond. §15 Upon request by any person or entity appearing to be a potential beneficiary of this Bond, the Contractor and Owner shall promptly furnish a copy of this Bond or shall permit a copy to be made. §16 Definitions §16.1 Claim.A written statement by the Claimant including at a minimum: .1 the name of the Claimant; .2 the name of the person for whom the labor was done,or materials or equipment furnished; .3 a copy of the agreement or purchase order pursuant to which labor, materials or equipment was furnished for use in the performance of the Construction Contract; .4 a brief description of the labor,materials or equipment furnished; .5 the date on which the Claimant last performed labor or last furnished materials or equipment for use in the performance of the Construction Contract; .6 the total amount earned by the Claimant for labor,materials or equipment furnished as of the date of the Claim; .7 the total amount of previous payments received by the Claimant;and .6 the total amount due and unpaid to the Claimant for labor,materials or equipment furnished as of the date of the Claim. §16.2 Claimant. An individual or entity having a direct contract with the Contractor or with a subcontractor of the Contractor to furnish labor,materials or equipment for use in the performance of the Construction Contract.The term Claimant also includes any individual or entity that has rightfully asserted a claim under an applicable mechanic's lien or similar statute against the real property upon which the Project is located.The intent of this Bond shall be to include without limitation in the terms"labor,materials or equipment"that part of water,gas,power,light,heat,oil,gasoline, telephone service or rental equipment used in the Construction Contract, architectural and engineering services required for performance of the work of the Contractor and the Contractor's subcontractors,and all other items for which a mechanic's lien may be asserted in the jurisdiction where the labor,materials or equipment were furnished. ADSLLP-00079793.16 Page 927 of 2461 §16.3 Construction Contract.The agreement between the Owner and Contractor identified on the cover page,including all Contract Documents and all changes made to the agreement and the Contract Documents. §16.4 Owner Default. Failure of the Owner,which has not been remedied or waived,to pay the Contractor as required under the Construction Contract or to perform and complete or comply with the other material terms of the Construction Contract. §16.5 Contract Documents.All the documents that comprise the agreement between the.Owner and Contractor. §17 If this Bond is issued for an agreement between a Contractor and subcontractor,the term Contractor in this Bond shall be deemed to be Subcontractor and the term Owner shall be deemed to be Contractor. §18 Modifications to this bond are as follows: This Payment Bond is intended to,and shall be deemed to be, an unconditional statutory Payment Bond pursuant to the requirements of Section 713.23,Florida Statutes. All of the provisions of Section 713.23,Florida Statutes,and all related provisions of Chapter 713,Florida Statutes,are incorporated into this Payment Bond by this reference. Insofar as any provision of this Payment Bond is inconsistent with,or more limiting or more expansive than,the provisions of Section 713.23, Florida Statutes, or any related provision of Chapter 713, Florida Statutes, then the statutory provisions shall control. 1ti �`r �131. .r"`-Y,"� asp X1he -: r�a.r•5 �tt�`i.L.a� _«kms �. ._ (Space is provided below for additional signatures of added parties, other than those appearing on the cover page.) CONTRACTOR AS PRINCIPAL SURETY Company: (Corporate Seal) Company: (Corporate Seal) Signature: Signature: 2 Name and Title: ztig - •fa, j�a Name and Title: 14, Address: .., `.., `*;• t 1 Address: ADSLLP-00079793.16 Page 928 of 2461 41AI A® Document A312 TM• 2010 Performance Bond CONTRACTOR: . SURETY: (Name, legal status and address) (Name, legal status and principal place of business) ' ' lir-----7Tt::,',Z7*,;' ',•••..,-7-A,477:;''. '-..,,,,. ;b.c,,r_:, , . -''.::!...-.''' 4g '.f. .t.*4 .;.;f:;,',74, 7-i:',.;4,4-- --rr;t,.4:,`,k-t'Aij :-. ,,;: .7 ,:.':.41r*:71efi:y----. ,:,• it-*-4,41.1;-?:•.' ' •:-4-::'' '''U'-,;'-:. 1-4;t:: 1,c; -,. ... . .t, Z•ll/f.':;Aii,...:'.:At',!,101.-A-r, ti?4,,,‘1.7 'YI.f.l•:C‘' OWNER: (Name, legal status and address) - - --,..- #.1..11f4gfia,-;;-.:-:;,... t,: - -,.---:-...-„ ,:-.,-,:.„4-...!-.;.-- ' :.414„k°-;:::, -.'• . ::1'z ".• 1...i :'- -,-;,. - • .,:„... :-''.,7-•.-;:jr-•,: , - -,r1F... A,: : .1,..'-.1.1-. s.-A..,z_.;!.,'. -,..;--i:•:,-1,,,,.,,I; ,.:•..;:,....",i-,,' Itaittf...°,4,54.1Wtti...:_,...:' ,13,:•;Itt ..3:-I.:: ..,,,,,,..,::-t",:.-t'W....-crt,;':'..',.-:1!.. 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BOND Date: (Not earlier than Construction Contract Date) 0.4 r..„,;;.,, Amount:$les Modifications to this Bond: i'!•,T None X See Section 16 WA CONTRACTOR AS PRINCIPAL SURETY Company: (Corporate Seal) Company: (Corporate Seal) Signature: ' - ...,. -5-3, Signature: ., ll Nameand Wi - NameandTitleii;i Title: (Any additional signatures appear on the last page of this Performance Bond.) (FOR INFORMATION ONLY—Name,address and telephone) AGENT or BROKER: OWNER'S REPRESENTATIVE: (Architect,En ineer or other arty:) ;''ti;•:-,;:e'.,,,-.4 .-If:- As-- t...,'43.. .--zr....y-frz Its;-, , -----_, -I- .-- -_, -r -...-,-:-1-4.- ,..,i..,--,-,- -s-,:t,-- --.---- .- ! i'- ''-- =--'`"`,:xli ;'-'- .' ,-i. '•-'(1--W-----*.-..ti-"lig..:: 41';`, 7---15Af,',, '.4., tl:'-' --:'--'•1-'-1- r-?;.'',":...' -- -1----: 17",'7111,--'':;:t`":'-•-- ----- "-fAi:.:-, -----, ---- .:: ---:: 1,,.)5. .a.%::.-__ --_xt,:).... c;k...,;',.zzf,-ii:AR:12•Airek- -:= 4,:: Y ,`,..7-k:7=-- ,.;-4::. :',„-,,e,'%,• ."'-=.-2?„-t--N, ..**-4-= ',..i:=." ' '-t'A----ei-Zil:7-'Et '.-,:7 i;.1-,.,,,f,-ft .4,,r,!,t, iz-, F.- • :').:5i.,-1-.„f:.4.,__,..,;_ 43.,•54,,06..:-_•••, __2*ft- ...,_ 4•:.,_ - _,,---__--,:f,------ ,f•,, ',..,--„5E -Et"i4i'tltig,;,1=,-,; •J'.1. ', '--iFlf-WP-I: :•" , . iit:VI ";,.•,::11,,,_,-,_ _••----- -,-.. •7,et:Itir Avg It-:,,z-77=---- ',,17'1-7,,..‹ -- _:‘?;.1-„:02.--:'-0;•-,-;:q ii',..i;'),-",-:,•":1,•.%:.ftk.il'-W-----------k...4*) 14%;i_Wfyti-k:...:L0-#:.at , .4''' •:`,:.:i .:;,.,,A5-.7.1.4.,,,,,-, •-::..,zvaiw_-_.-7...r.,.t9;44,i-gv-iy,1,7,:i••e 4..,14.te.-:, - ADSLLP-00079793.16 Page 929 of 2461 §1 The Contractor and Surety,jointly and severally,bind themselves,their heirs,executors,administrators,successors and assigns to the Owner for the performance of the Construction Contract,which is incorporated herein by reference. §2 If the Contractor performs the Construction Contract,the Surety and the Contractor shall have no obligation under this Bond,except when applicable to participate in a conference as provided in Section 3. §3 If there is no Owner Default under the Construction Contract,the Surety's obligation under this Bond shall arise after .1 the Owner first provides notice to the Contractor and the Surety that the Owner is considering declaring a Contractor Default. Such notice shall indicate whether the Owner is requesting a conference among the Owner,Contractor and Surety to discuss the Contractor's performance.If the Owner does not request a conference,the Surety may, within five(5)business days after receipt of the Owner's notice,request such a conference.If the Surety timely requests a conference,the Owner shall attend. Unless the Owner agrees otherwise,any conference requested under this Section 3.1 shall be held within ten (10) business days of the Surety's receipt of the Owner's notice. If the Owner,the Contractor and the Surety agree, the Contractor shall be allowed a reasonable time to perform the Construction Contract,but such an agreement shall not waive the Owner's right,if any, subsequently to declare a Contractor Default; .2 the Owner declares a Contractor Default, terminates the Construction Contract and notifies the Surety;and .3 the Owner has agreed to pay the Balance of the Contract Price in accordance with the terms of the Construction Contract to the Surety or to a contractor selected to perform the Construction Contract. §4 Failure on the part of the Owner to comply with the notice requirement in Section 3.1 shall not constitute a failure to comply with a condition precedent to the Surety's obligations,or release the Surety from its obligations except to the extent the Surety demonstrates actual prejudice. §5 When the Owner has satisfied the conditions of Section 3,the Surety shall promptly and at the Surety's expense take one of the following actions: §5.1 Arrange for the Contractor,with the consent of the Owner,to perform and complete the Construction Contract; §5.2 Undertake to perform and complete the Construction Contract itself, through its agents or independent contractors; §5.3 Obtain bids or negotiated proposals from qualified contractors acceptable to the Owner for a contract for performance and completion of the Construction Contract,arrange for a contract to be prepared for execution by the Owner and a contractor selected with the Owner's concurrence,to be secured with performance and payment bonds executed by the Surety or a qualified surety acceptable to the Owner equivalent to the bonds issued on the Construction Contract, and pay to the Owner the amount of damages as described in Section 7 in excess of the Balance of the Contract Price incurred by the Owner as a result of the Contractor Default(the Owner's acceptance of such contractors or sureties shall not be unreasonably withheld);or §5.4 Waive its right to perform and complete,arrange for completion,or obtain a new contractor and with reasonable promptness under the circumstances: .1 After investigation,determine the amount for which it may be liable to the Owner and,as soon as practicable after the amount is determined,make payment to the Owner;or .2 Deny liability in whole or in part and notify the Owner,citing the reasons for denial. §6 If the Surety does not proceed as provided in Section 5 with reasonable promptness,the Surety shall be deemed to be in default on this Bond seven days after receipt of an additional written notice from the Owner to the Surety demanding that the Surety perform its obligations under this Bond, and the Owner shall be entitled to enforce any remedy available to the Owner.If the Surety proceeds as provided in Section 5.4,and the Owner refuses the payment or the Surety has denied liability,in whole or in part,without further notice the Owner shall be entitled to enforce any remedy available to the Owner. ADSLLP-00079793.16 Page 930 of 2461 §7 If the Surety elects to act under Section 5.1,5.2 or 5.3,then the responsibilities of the Surety to the Owner shall be equal to those of the Contractor under the Construction Contract,and the responsibilities of the Owner to the Surety shall not be greater than those of the Owner under the Construction Contract.Subject to the commitment by the Owner to pay the Balance of the Contract Price, the Surety is obligated, without duplication, for, but not limited to, the following: .1 the responsibilities of the Contractor for correction of defective work,latent defects in the work and completion of the Construction Contract; .2 additional legal, design professional, delay costs resulting from the Contractor's Default, and resulting from the actions or failure to act of the Surety under Section 5;and .3 liquidated damages,or if no liquidated damages are specified in the Construction Contract,actual damages caused by delayed performance or non-performance of the Contractor. §6 If the Surety elects to act under Section 5.1,5.3 or 5.4,the Surety's liability is limited to the amount of this Bond. §9 The Surety shall not be liable to the Owner or others for obligations of the Contractor that are unrelated to the Construction Contract,and the Balance of the Contract Price shall not be reduced or set off on account of any such unrelated obligations.No right of action shall accrue on this Bond to any person or entity other than the Owner or its heirs,executors,administrators,successors and assigns. §10 The Surety hereby waives notice of any change to the Construction Contract,or to related subcontracts,purchase orders and other obligations,including,without limitation,changes to the work to performed under the Construction Contract,changes to the Contract Price of the Construction Contract or changes to the time within which the work under the Construction Contract is to be performed,and the obligations of the Surety and this Bond shall in no way be impaired by any such changes. §41 Any proceeding,legal or equitable, under this Bond may be instituted in any court of competent jurisdiction in the location in which the work or part of the work is located and shall be instituted within the applicable statute of limitations of the jurisdiction in which the Project is located. §12 Notice to the Surety, the Owner or the Contractor shall be mailed or delivered to the address shown on the page on which their signature appears. §13 When this Bond has been furnished to comply with a statutory or other legal requirement in the location where the construction was to be performed,any provision in this Bond conflicting with said statutory or legal requirement shall be deemed deleted herefrom and provisions conforming to such statutory or other legal requirement shall be deemed incorporated herein.When so furnished,the intent is that this Bond shall be construed as a statutory bond and not as a common law bond. §14 Definitions §14.1 Balance of the Contract Price.The total amount payable by the Owner to the Contractor under the Construction Contract after all proper adjustments have been made,including allowance to the Contractor of any amounts received or to be received by the Owner in settlement of insurance or other claims for damages to which the Contractor is entitled, reduced by all valid and proper payments made to or on behalf of the Contractor under the Construction Contract. §14.2 Construction Contract.The agreement between the Owner and Contractor identified on the cover page,including all Contract Documents and changes made to the agreement and the Contract Documents. §14.3 Contractor Default.Failure of the Contractor,which has not been remedied or waived,to perform or otherwise to comply with a material term of the Construction Contract. §14.4 Owner Default.Failure of the Owner,which has not been remedied or waived,to pay the Contractor as required under the Construction Contract or to perform and complete or comply with the other material terms of the Construction Contract. §14.5 Contract Documents.All the documents that comprise the agreement between the Owner and Contractor. ADSLLP-00079793.16 Page 931 of 2461 §15 If this Bond is issued for an agreement between a Contractor and subcontractor,the term Contractor in this Bond shall be deemed to be Subcontractor and the term Owner shall be deemed to be Contractor. §16 Modifications to this bond are as follows: (Space is provided below for additional signatures of added parties, other than those appearing on the cover page.) CONTRACTOR AS PRINCIPAL SURETY Company: (Corporate Seal) Company: (Corporate Seal) Signature: Signature: Name and Title: .. _:,? = 3 = Name and Title: f•7LAIt :.l-Y _�: _ - x!42- "�•.r i.�lVi'-�'+� _ �°h:�-' - Ja•.,� ..� 4f:: Address: .i►^ _ ` . `'=_ Address: 'r `£ _�_"f'r: , '' .' : . ADSLLP-00079793.16 Page 932 of 2461 RIDER To be attached to and form a part of Bond No. , naming as Principal, and as Surety, in favor of ("Owner") and ("Additional Obligee"), in the amount of ($ ). The foregoing,however,is subject to the following provisions: 1. Notwithstanding anything contained herein to the contrary, there shall be no liability under the attached bond to the Additional Obligee,if there has been a failure by the Additional Obligee which has not been remedied or waived,(i)to pay the Contractor or the Surety(if the Surety elects to act under Sections 5.1,5.2 or 5.3 of the attached bond), as required under the Construction Contract,or(ii)to perform and comply with the other material terms of the Construction Contract." 2. If the Surety elects to act under Section 5.1,5.3 or 5.4 of the attached bond,then the Surety's aggregate liability to the Owner and the Additional Obligee,or any of them individually,is limited to the amount of the attached bond. Signed and Sealed this day of PRINCIPAL: SURETY: By: By: Attorney in fact (CORPORATE SEAL) (Power of Attorney must be attached) ADSLLP-00079793.16 Page 933 of 2461 Page 934 of 2461 PURCHASE AND SALE AGREEMENT THIS PURCHASE AND SALE AGREEMENT(this"Aareement") is executed on the_ day of , 2020,by and between THE CITY OF MIAMI BEACH, FLORIDA,a Florida municipal corporation("Seller"or the"C�t "),and MARINA PARK RESIDENTIAL, LLC,a Delaware limited liability company("Purchaser"). RECITALS A. Seller owns fee title to the parcel of air and the property located in the County of Miami-Dade, State of Florida, and which is legally described on Schedule A-1 attached hereto and made a part hereof(the "Residential Parcel"). B. Seller is a Florida municipal corporation with powers and authority conferred under the Florida Constitution,the Municipal Home Rule Powers Act set forth in Chapter 166 of the Florida Statutes,and the Miami Beach City Charter and Code of Ordinances (the "City Code"). SelIer has all governmental, corporate and proprietary powers to enable it to conduct municipal government, perform municipal and governmental functions, and render municipal services, including the authority to adopt, implement and enforce (together with any other required Project Approvals) comprehensive plans, zoning ordinances,redevelopment plans, and other police power and legislative measures necessary to assure the health,safety and general welfare of Seller and its inhabitants. C. After Seller having fully considered this Agreement at two duly noticed public hearings in compliance with Section 163.3225 of the Act,Seller has agreed to enter into this Agreement with the Purchaser. D. On , 2020, the Mayor and City Commission, by Resolution No. 2020- approved the execution of this Agreement. E. Seller desires to sell,and Purchaser desires to purchase,the Residential Parcel,upon the terms and covenants and subject to the conditions set forth below in this Agreement. NOW THEREFORE, for and in consideration of the foregoing, and of the mutual covenants and agreements contained herein,the parties agree as follows: AGREEMENT ARTICLE 1 Voter Referendum,Effective Date and Definitions 1.1 Voter Referendum Requirement. The parties acknowledge and agree that, pursuant to Section I.03(b)(1) of the City Code, this Agreement and the obligations herein are subject to and contingent upon the approval of this Agreement by vote of a majority of the voters voting thereon in a City-wide referendum on November 3,2020(the"2020 Referendum")or such later date in 2021 as further described in this Section(each,a "2021 Referendum" and together with the 2020 Referendum,each, a"Referendum"). In the event that the 2020 Referendum is not successful, or if the ballot question is removed or election results are invalidated by a court of competent jurisdiction, then Purchaser may, within 90 days after the date on which it is determined that the 2020 Referendum was not successful, request that City Commission consider adopting a resolution calling for a special election for approval of this Agreement in a 2021 Referendum. If(a) the City Commission declines to adopt a resolution calling for approval of this Agreement in a 2021 Referendum or(b)within such ninety (90)day period, Purchaser either fails to so notify Seller or notifies Seller that it wishes to terminate this Agreement,then in any such event,this Agreement shall be deemed null and void,the Deposit shall be returned to Purchaser and the parties shall have no obligations or liabilities of any kind or nature whatsoever hereunder. In the event that, following Purchaser's request, the City Commission adopts a resolution calling for a 2021 Referendum and the 2021 Referendum is not successful, or if the ballot question is removed or election results are invalidated by a court of competent jurisdiction, in each case following the last date on which a 2021 Referendum occurred,this Agreement shall be deemed null and void,the Deposit shall be returned to Purchaser and the parties shall have no obligations or liabilities of any kind or nature whatsoever hereunder. Page 935 of 2461 1.2 Effective Date. If a Referendum is successful and all requirements of the City Code and applicable law are satisfied,and the City Commission adopts a resolution accepting the certification of the official results of the applicable election with respect to the applicable Referendum, then this Agreement shall be effective on the date such resolution is adopted(the"Effective Date"). 1.3 Definitions. Unless otherwise defined herein, any term capitalized in this Agreement shall have the meanings set forth on Schedule B to this Agreement. 1.4 Seller's Authority. In all respects hereunder, Seller's obligations and performance is pursuant to Seller's position as the fee owner of the Residential Parcel and the Project Site acting in its proprietary capacity. In the event Seller exercises its regulatory authority as a governmental body,the exercise of such regulatory authority and the enforcement of any rules, regulations, laws and ordinances (including through the exercise of the Seller's building, fire, code enforcement, police department or otherwise) shall be deemed to have occurred pursuant to Seller's regulatory authority as a governmental body and shall not be attributable in any manner to Seller as a party to this Agreement or in any way be deemed in conflict with,or a default under,Seller's obligations hereunder. ARTICLE II Purchase and Sale of the Residential Parcel 2.1 Purchase. Seller agrees to sell to Purchaser, and Purchaser agrees to purchase from Seller, the Residential Parcel all in accordance with the terms and conditions set forth in this Agreement. 2.2 Purchase Price. The total purchase price (the"Purchase Price") for the Residential Parcel shall be equal to Fifty-Five Million and No/100 Dollars ($55,000,000.00). The Purchase Price shall be payable as follows: (a) First Deposit. Not later than August 31,2020,Purchaser shall deliver to Escrow Agent, by wire transfer of immediately available funds, a deposit in the amount of One Million and No/100 Dollars ($1,000,000.00) (the "First Deposit"), which shall be held in escrow by Escrow Agent pursuant to the terms and conditions of this Agreement. Notwithstanding the foregoing,Purchaser shall not be in default hereunder for failure to deliver the First Deposit if, on or before such date, Marina Lessee has not unconditionally delivered its fully executed counterparts of the Marina Lease,Master Sublease, Recognition Agreement and REA with Escrow Agent, with the only condition to delivery to Purchaser and Seller hereunder being consummation of Closing, and should Marina Lessee fail to do so,then Purchaser may terminate this Agreement on written notice to Seller on or before August 31,2020, whereupon this Agreement shall be of no further force or effect and neither party shall have any further rights or obligations hereunder. (b) Additional Deposit. Not later than the later of(i)January 31,2021 or(ii)thirty(30)days after the Effective Date, Purchaser shall deliver to Escrow Agent, by wire transfer of immediately available funds, an additional deposit in the amount of Four Million and No/100 Dollars ($4,000,000.00) (the "Additional Deposit"), which shall be held in escrow by Escrow Agent pursuant to the terms and conditions of this Agreement (the First Deposit and the Additional Deposit(when funded),together with any and all interest earned thereon, are herein collectively referred to as the"Deposit'). The Deposit will be held with an institution the deposits in which are insured by the Federal Deposit Insurance Corporation. Purchaser accepts all risk with respect to such account. The Deposit shall be delivered to Seller or returned to Purchaser in accordance with the terms and conditions of this Agreement. (c) Balance. The balance of the Purchase Price shall be paid on the Closing Date via a purchase money first mortgage loan from Seller to Purchaser in the amount of Fifty Million and No/100 Dollars ($50,000,000.00) (the"PM Loan"),which is the balance of the Purchase Price(after crediting the Deposit). The terms of the PM Loan shall be as follows: (i) The PM Loan shall be evidenced by a promissory note in the form attached hereto as Schedule D and secured by the lien of a first mortgage on the Residential Parcel in the form attached hereto as Schedule E(collectively the"PM Loan Documents"). 2 Page 936 of 2461 (ii) The PM Loan shall be repaid as follows: (A)a principal payment in the amount of Five Million and No/100 Dollars ($5,000,000.00) shall be due and payable on January I, 2022; (B) a principal payment in the amount of Five Million and No/100 Dollars($5,000,000.00)shall be due and payable on September 1,2022;and(C)the remaining outstanding principal balance shall be due and payable on the day on which all of the Construction Commencement Conditions have been satisfied(the"Maturity Date"). Except as set forth in clauses (A)and(B)above,there shall be no prepayment of the PM Loan; (iii) The PM Loan Documents shall require Purchaser to use diligent commercially reasonable good faith efforts to pursue and obtain the Project Approvals,and shall obligate Seller, in its proprietary capacity and not in its regulatory capacity as a governmental body,to reasonably cooperate with Purchaser's efforts to obtain the Project Approvals. Without limiting the generality of the foregoing, the PM Loan Documents shall provide that after receiving a written request from Purchaser that is consistent with all Governmental Requirements, Seller, at Purchaser's sole cost and expense (including Seller's reasonable attorneys' fees in reviewing any agreements),shall join Purchaser,Marina Lessee and Master Sublessee,as applicable,when required by law in any and all applications and agreements for Project Approvals and other approvals, permits and agreements as may be commercially reasonably necessary for developing and constructing the Project or any portion thereof, which applications, permits and agreements are necessary because Seller is the fee owner of Area 1 or tenant under the Submerged Land Lease, and which applications, permits and agreements may include applications for subdivision approval, covenants in lieu of unity of title, easement agreements, and demolition permits and applications for Design Review Board approval,which joinder shall be delivered by Seller within fifteen(15)days with respect to all such applications for Project Approvals and within five(5)days following the parties'agreement with respect to any covenants, easements, permits or other agreements required in connection with such Project Approvals or the Project. Purchaser shall pay all fees and charges for all such applications. Failure of Seller to perform as requested within such fifteen (15)or five(5)day period,as applicable,shall be deemed a Seiler Delay for the number of days of delay beyond such fifteen(15) or five (5) day period, as applicable, and shall not be a Seller default hereunder provided the period of delay does not exceed one hundred twenty(120)days; (iv) The PM Loan shall be non-interest bearing through that date that is the earlier of (y) ninety(90)days after Purchaser has obtained the Project Approvals or(z)the day that is fifty four(54)months after the Effective Date(the"Interest Commencement Date"),subject to extension as set forth in Section 15.6,and thereafter the PM Loan shall bear interest as set forth in the PM Loan Documents. Interest shall accrue and shall be payable on the Maturity Date; (v) Seller may accelerate the Maturity Date should any Transfer occur that is not a Permitted Transfer;and (vi) Purchaser,at Purchaser's sole cost and expense,shall deliver to Seller at Closing an ALTA loan title policy in form and substance reasonably acceptable to the City,issued by First American Title Insurance Company(or other reputable national title insurance company reasonably acceptable to Seller)in favor of Seller in the amount of the PM Note insuring the first lien priority of the PM Mortgage(the"Seller Title Policy"). (d) Provided the appropriate IRS forms are delivered to Escrow Agent, following the collection of the Deposit,Escrow Agent shall,at the direction of Purchaser,invest the Deposit in an interest-bearing escrow account at a commercial bank in Miami,Florida,for the benefit of the Purchaser subject to disbursement in accordance with the terms and provisions of this Agreement. ARTICLE III Investigation of the Residential Parcel 3.1 No Due Diligence Period. Purchaser acknowledges and agrees that it has performed all tests, investigations, studies, and diligence with respect to the Residential Parcel prior to the Effective Date and that the Purchaser shall have no right to terminate this Agreement and/or receive a refund of the Deposit except as expressly set forth in this Agreement. 3.2 Access and insurance. To the extent Purchaser or any of its agents enter upon the Residential Parcel prior to Closing and/or the Project Site, Purchaser hereby agrees(a)to indemnify,protect and hold harmless 3 Page 937 of 2461 Seller and its officers,employees,agents and instrumentalities from and against any and all claims, demands,losses, costs,actual damages,expenses or liabilities for death or injury to persons or for physical damage to property,or for mechanics' or other liens, including reasonable attorneys' fees, relating to or arising out of Purchaser's entry upon the Residential Parcel and/or Project Site except to the extent caused by the gross negligence or willful misconduct of Seller or its officers, employees, agents or instrumentalities, and (b) to repair and restore the Residential Parcel and/or Project Site, as applicable, to substantially the same condition existing prior to any such entry by or for Purchaser. Prior to entering upon the Residential Parcel or Project Site,Purchaser, at its sole cost and expense,will furnish to Seller certificates of insurance issued by or on behalf of an insurance company authorized to do business in the State of Florida, and which certificates of insurance will evidence Purchaser's and its agents' commercial general liability insurance with respect to bodily injury and property damage, name Seller as an additional insured and have limits acceptable to Seller. The obligations under this Section 3.2 shall survive the Closing or any termination of this Agreement as provided herein. ARTICLE IV Title 4.1 Purchaser's Objections and Resolutions of Purchaser's Objections. Prior to the Effective Date, Purchaser(i)obtained an ALTA title insurance commitment from Title Company for the Residential Parcel bearing file no. 1062-4670862A with a commitment date of July 1, 2020 at 8:00 a.m., including copies of all recorded exceptions to title referred to therein (collectively, the "Title Commitment") and (ii) received a survey of the Project Site prepared by Schwebke-Shiskin&Associates, Inc.bearing file no. AJ-4058A and with a latest revision date of May 14,2020(the"Survey",and together with the Title Commitment,the"Title Documents"). Purchaser conclusively accepts title in the form set forth in the Title Commitment and the Survey as of the date of execution of this Agreement by the parties (subject to Purchaser's right to make Title Objections with respect to any matters first arising after the effective date of the Title Commitment and shown on an update thereto as expressly set forth in Section 4.2). 4.2 Title Updates. Purchaser may from time to time cause the Title Documents to be updated and shall deliver copies of each such update to Seller promptly following receipt. Purchaser shall have the right to object to any matter(s) disclosed or contained in any such updates that are not caused by Purchaser and that adversely affect the development,construction, use, efficiency, marketability,or value of the Residential Parcel or the Project or any portion thereof within ten (10) Business Days after receipt of any such update (each, a "Title Objection"). If Purchaser has given Seller written notice of any Title Objection, then Seller may, in Seller's sole discretion, give Purchaser notice of those Title Objections which Seller is willing to endeavor to cure, if any; provided, however, that Seller shall have no obligation whatsoever to expend or agree to expend any funds, to undertake or agree to undertake any obligations or otherwise to cure or agree to cure any Title Objection except with respect to (i) liens secured by mortgages securing loans made to Seller and any security documents recorded in connection therewith, (ii)judgment liens against Seller and (iii)matters created by Seller on or after the Effective Date without Purchaser's written consent (collectively, "Mandatory Cure Items") which Seller agrees to have removed(or insured or bonded over to the Purchaser's reasonable satisfaction) on or before the Closing Date. The City has no obligation to cure any liens,encumbrances or matters arising or created by Existing Marina Lessee or any Existing Sublessee or any of their respective predecessors in interest,none of which are or shall be deemed to be Mandatory Cure Items. If Purchaser does not timely deliver notice of any Title Objection based on such update,all new exceptions shown in such update shall be conclusively deemed approved by Purchaser and shall be Permitted Exceptions hereunder. At either party's option,the date of Closing may be extended for a period not to exceed sixty (60) days for purposes of curing any Title Objection(s). In the event that Seller is unable to eliminate any Title Objection(s)as of the date of Closing,as the same may be extended under the preceding sentence, Purchaser shall have the option of either: (i)waiving such Title Objection(s)and proceeding to Closing without any adjustment in the Purchase Price except for the amount of any Mandatory Cure Items or(ii)terminating this Agreement in which event the Purchaser shall immediately receive a return of its Deposit,whereupon both parties shall be released from all further obligations under this Agreement. 4.3 Permitted Exceptions. The exceptions to title disclosed in the Title Commitment and any updates thereto, as approved or deemed approved by Purchaser hereunder, together with the Existing Lease and Existing Subleases, the Development Agreement and the REA, shall be the "Permitted Exceptions" hereunder. Notwithstanding anything to the contrary contained herein,Seller shall discharge and remove any and all Mandatory 4 Page 938 of 2461 Cure Items, and such Mandatory Cure Items shall not be Permitted Exceptions(whether or not Purchaser expressly objects to such Mandatory Cure Items). 4.4 Issuance of Title Policy. Delivery of title in accordance with the foregoing provisions shall be evidenced by the willingness of the Title Company to issue to Purchaser,at Closing,a 2006 ALTA form of extended coverage owner's policy of title insurance insuring good, marketable, insurable title to the Residential Parcel in Purchaser in the amount of the Purchase Price, subject only to the Permitted Exceptions (the"Title Policy"). The issuance of the Title Policy shall be a condition to Purchaser's obligation to close hereunder as set forth in Section 8.1(a). ARTICLE V Seller's Representations and Warranties Seller represents, warrants and covenants to Purchaser as follows as of the Effective Date (except as otherwise set forth below) and Closing, all of which are expressly qualified by and subject to the terms of Section 1.1 above, the rights of Existing Lessee, and the rights, if any, of any Existing Sublessees (collectively, "Seller's Representations"): 5.1 Authority. Seller is a Florida municipal corporation duly organized, validly existing and in good standing under the laws of the state of Florida. Seller has the full right, power and authority to enter into this Agreement and all documents contemplated hereby, and consummate the transaction contemplated by this Agreement. All requisite action has been taken by Seller in connection with entering into this Agreement,and will be taken by Seller prior to the Closing in connection with the execution and delivery of the instruments referenced herein,and the consummation of the transaction contemplated hereby. Each of the persons and entities signing this Agreement and the other documents contemplated by this Agreement on behalf of Seller has the legal right, power and authority to bind Seller. 5.2 No Conflicts. The execution, delivery and performance by Seller of this Agreement and the instruments referenced herein and the transaction contemplated hereby will not conflict with, or with or without notice or the passage of time or both, result in a breach of, violate any term or provision of, or constitute a default under any contract, agreement,judicial or administrative order, or any Law to which Seller or any portion of the Residential Parcel is bound. 5.3 Consents; Binding Obligations. No approval or consent is required from any person for Seller to execute, deliver or perform this Agreement or the other instruments contemplated hereby or for Seller to consummate the transaction contemplated hereby. This Agreement and all documents required hereby to be executed by Seller are and shall be valid,legally binding obligations of and enforceable against Seller in accordance with their terms. 5.4 No Actions. Except as set forth on Schedule 5.4 attached hereto,as of the date Seller executes this Agreement, there are no actions, suits, proceedings or claims pending against Seller, or to Seller's knowledge, contemplated or threatened against Seller,before any court,commission,regulatory body,administrative agency or other Governmental Authority with respect to the ability of Seller to consummate the transaction contemplated by this Agreement. Except as expressly set forth in this Agreement or the Closing Documents,which Closing Documents shall be consistent with this Agreement and shall not impose any additional obligations on Seller not set forth in this Agreement,Purchaser hereby acknowledges and agrees that it is purchasing the Residential Parcel in its present"as is/where is"condition with all defects,and that, except as expressly set forth in this Agreement or in such Closing Documents,neither Seller nor any employee or agent of Seller has made or will make,either expressly or impliedly, any representations, guaranties, promises, statements, assurances or warranties of any kind concerning the Residential Parcel or this Agreement,including any with respect to the quality, physical condition,expenses, legal status, zoning, value, utility or development or operating potential of the Residential Parcel, the absence of any hazardous substances or hazardous materials on,in,under or near the Residential Parcel,or any other matter or thing affecting or relating to the Residential Parcel or this Agreement(including warranties of merchantability and/or of fitness for a particular purpose)which might be pertinent in considering whether to purchase the Residential Parcel 5 Page 939 of 2461 or to make and enter into this Agreement, and Purchaser hereby acknowledges that,other than as expressly set forth in this Agreement or the Closing Documents, Seller has not made, and Purchaser has not relied upon,any such representations,and releases and discharges Seller,its successors and assigns, of and from any liability to Purchaser, its successors and assigns,existing or arising under the statutes,laws and regulations of the State of Florida. Seller's Representations are acknowledged by Seller to be material and to be relied upon by Purchaser in proceeding with this transaction,and shall be deemed to have been remade by Seller as of the Closing Date;provided that Seller shall have the right to update the foregoing representations with respect to any Lawsuit or Marina Lawsuit filed with respect to Seller, the Residential Parcel or the Project Site, as applicable, of which Seller has knowledge, and no such update or change to Seller's representations and warranties set forth in Section 5.4 shall be a default by Seiler hereunder. Subject to the foregoing,Seller will not cause or suffer any action to be taken which would cause any of the foregoing representations or warranties to be untrue as of the Closing Date. Seller shall promptly notify Purchaser,in writing,of any event or condition known to Seller which occurs prior to the Closing Date which causes a change in the facts relating to, or the truth of, any of the above representations or warranties;provided, however, that upon such notification[OPEN: (except an update notifying Purchaser of a Marina Lawsuit)],(i) Purchaser shall have the option to terminate this Agreement by delivering written notice thereof to Seller, in which case Escrow Agent shall return the Deposit to Purchaser, and this Agreement shall be of no further force or effect and neither party shall have any further rights or obligations hereunder (other than pursuant to any provision hereof which expressly survives the termination of this Agreement), and (ii) to the extent that any of the events or conditions described in such notification are caused as a result of a breach by Seller of this Agreement, Purchaser shall be entitled to all of the rights and remedies set forth in Section 12.1, it being expressly understood that Seller's obligation to provide such notification shall in no way relieve Seller of any liability for a breach by Seller of any of its representations,warranties,covenants or agreements under this Agreement. ARTICLE VI Purchaser's Representations and Warranties Purchaser represents and warrants to Seller as of the Effective Date (except as otherwise set forth below) and Closing as follows(collectively,"Purchaser's Representations"): 6.1 Authority. Purchaser is a limited liability company duly organized, validly existing and in good standing under the laws of the state of its organization. Purchaser has the full right,power and authority to enter into this Agreement and all documents contemplated hereby, and consummate the transaction contemplated by this Agreement. All requisite action has been taken by Purchaser in connection with entering into this Agreement, and will be taken by Purchaser prior to the Closing in connection with the execution and delivery of the instruments referenced herein,and the consummation of the transaction contemplated hereby. Each of the persons and entities signing this Agreement and the other documents contemplated by this Agreement on behalf of Purchaser has the legal right,power and authority to bind Purchaser. 6.2 No Conflicts. The execution, delivery and performance by Purchaser of this Agreement and the instruments referenced herein and the transaction contemplated hereby will not conflict with, or with or without notice or the passage of time or both,result in a breach of, violate any term or provision of,or constitute a default under any articles of formation, bylaws, partnership agreement, operating agreement, indenture, deed of trust, mortgage, contract,agreement(oral or written),judicial or administrative order, or any Law to which Purchaser is bound. 6.3 Consents; Binding Obligations. No approval or consent is needed from any of Purchaser's direct or indirect partners, shareholders, members, managers, creditors or investors that has not been obtained for Purchaser to execute, deliver or perform this Agreement or the other instruments contemplated hereby or for Purchaser to consummate the transaction at Closing contemplated hereby. For avoidance of doubt, this representation does not include approvals or consents needed in connection with the development or construction of the Project, including Project Approvals. This Agreement and all documents required hereby to be executed by Purchaser are and shall be valid,legally binding obligations of and enforceable against Purchaser in accordance with their terms. 6 Page 940 of 2461 6.4 No Bankruptcy. No petition in bankruptcy (voluntary or otherwise), attachment, execution proceeding,assignment for the benefit of creditors,or petition seeking reorganization or insolvency,arrangement or other action or proceeding under federal or state bankruptcy law is pending against or contemplated (or, to Purchaser's knowledge, threatened) by or against Purchaser or any general partner or managing member of Purchaser. 6.5 Prohibited Person. Purchaser is not a Prohibited Person. 6.6 No Actions. As of the date Purchaser executes this Agreement, there are no actions, suits proceedings or claims pending, or to Purchaser's knowledge, contemplated or threatened, before any court, commission, regulatory body,administrative agency or other Governmental Authority with respect to the ability of Purchaser to consummate the transaction contemplated by this Agreement. Purchaser's Representations are acknowledged by Purchaser to be material and to be relied upon by Seller in proceeding with this transaction and shall be deemed to have been remade by Purchaser as of the Closing Date; provided that Purchaser shall have the right to update the representations set forth in Section 6.6 with respect to any Lawsuit or Marina Lawsuit,and no such update or change to Purchaser's representations and warranties set forth in Section 6.6 shall be a default by Purchaser hereunder. Subject to the foregoing, Purchaser will not cause or suffer any action to be taken which would cause any of the representations or warranties set forth in Sections 6.1 —6.5 to be untrue as of the Closing Date or,except in connection with any declaratory or similar action filed by Purchaser, Existing Marina Lessee and/or Marina Lessee with respect to any Marina Lawsuit, to cause any of the representations or warranties set forth in Section 6.6 to be untrue as of the Closing Date. Purchaser shall promptly notify Seller, in writing,of any event or condition known to Purchaser which occurs prior to the Closing Date which causes a change in the facts relating to, or the truth of, any of the above representations or warranties; provided, however,that upon such notification(except an update notifying Seller of a Lawsuit or Marina Lawsuit), (i) Seller shall have the option to terminate this Agreement by delivering written notice thereof to Purchaser, in which case Escrow Agent shall disburse the Deposit to Seller, and this Agreement shall be of no further force or effect and neither party shall have any further rights or obligations hereunder (other than pursuant to any provision hereof which expressly survives the termination of this Agreement) and (ii) to the extent that any of the events or conditions described in such notification are caused as a result of a breach by Purchaser of this Agreement, Seller shall be entitled to all of the rights and remedies set forth in Section it being expressly understood that Purchaser's obligation to provide such notification shall in no way relieve Purchaser of any liability for a breach by Seller of any of its representations,warranties,covenants or agreements under this Agreement. ARTICLE VII Seller's Undertakings 7.1 Prohibited Actions. Until the earlier of Closing or termination of this Agreement,Seller agrees as follows: (a) Without Purchaser's prior written approval, which may be withheld in Purchaser's sole and absolute discretion,Seller shall not directly or indirectly,other than the REA,the Marina Lease,the Recognition Agreement and the PM Loan Documents, and subject to the rights of Existing Marina Lessee under the Existing Marina Lease and the rights,if any,of any Existing Sublessees under the Existing Subleases and under the Existing Recognition Agreements,(i)sell,lease,contribute,assign or create any right,title or interest whatsoever in or to the Residential Parcel or any portion thereof or the balance of the Project Site or any portion thereof,(ii)enter into any agreements that encumbers the Residential Parcel or any portion thereof or the balance of the Project Site or any portion thereof,including,but not limited to mortgage and security agreements,promissory notes, and assignments, or cause or knowingly permit any mortgage, deed of trust, Lien, assessment, obligation, interest, encroachment or liability whatsoever encumbering Seller's interest in the Residential Parcel or the Project Site to be placed of record against the Residential Parcel or any portion thereof or the balance of the Project Site or any portion thereof,(iii) enter into any new (or extend, amend, renew or replace any existing) agreement, contract, permit or obligation affecting the Residential Parcel or any portion thereof or the balance of the Project Site or any portion thereof which 7 Page 941 of 2461 _ would be binding upon Purchaser,the Marina Lessee or the Master Sublessee or(iv)enter into any agreement to do any of the foregoing. (b) Seller shall not commence or allow to be commenced on its behalf any action, suit or proceeding with respect to the Residential Parcel or any portion thereof or the balance of the Project Site or any portion thereof without the prior written consent of Purchaser, which Purchaser may withhold in its sole and absolute discretion; provided, however, if Seller is named in any such action, suit or proceeding, Seller may participate and defend or enter into an agreement with any other Person to defend Seiler's interests in such action, suit or proceeding and may settle same,in each case,without Purchaser's consent,provided that any such settlement is not binding on Purchaser. 7.2 Seller Cooperation. After receiving a written request from Purchaser that is consistent with all Governmental Requirements, Seller, at Purchaser's sole cost and expense(including Seller's reasonable attorneys' fees in reviewing any agreements), and solely in Seller's proprietary capacity and not in its regulatory capacity as a governmental body,shall join Purchaser, Marina Lessee and Master Sublessee,as applicable,when required by law in any and all applications and agreements for Project Approvals and other approvals, permits and agreements as may be commercially reasonably necessary for developing and constructing the Project or any portion thereof, which applications,permits and agreements are necessary because Seller is the fee owner of Area l or tenant under the Submerged Land Lease, and which applications, permits and agreements may include applications for subdivision approval, covenants in lieu of unity of title, easement agreements, and demolition permits and applications for Design Review Board approval, which joinder shall be delivered by Seller within fifteen (15) days with respect to all such applications for Project Approvals and within five(5)days following the parties' agreement with respect to any covenants, easements, permits or other agreements required in connection with such Project Approvals or the Project. Purchaser shall pay all fees and charges for all such applications. Failure of Seller to perform as requested within such fifteen (15) or five (5) day period, as applicable, shall be deemed a Seller Delay for the number of days of delay beyond such fifteen (15) or five (5) day period, as applicable, and shall not be a Seller default hereunder provided the period of delay does not exceed one hundred twenty(120)days. 7.3 Revisions to Legal Description. Seller and Purchaser acknowledge that the final legal description for the Residential Parcel is subject to revision based upon the Project Approvals and upon the final, as-built structures. Seller and Purchaser shall reasonably cooperate with one another from time to time after Closing,upon Purchaser's request and at Purchaser's expense,to correct the legal description to conform to Project Approvals and to conform to the final, as-built structures. Such cooperation shall include, without limitation, execution and delivery by each party to the other of special warranty deeds as required to correct the legal description to conform to the Project Approvals and to the final,as-built structures. 7.4 Existing Lease and Marina Lease. Notwithstanding anything to the contrary set forth herein, Seller shall receive and shall continue to receive all rents and other revenues under the Existing Lease until_its expiration or termination, and thereafter,under the Marina Lease, if any. Purchaser hereby releases and disclaims any interest in each of the Existing Lease and the Marina Lease but agrees to accept title to the Residential Parcel subject to the terms of the Existing Lease and any Existing Subleases. 7.5 Survival. This ARTICLE VII shall survive Closing. ARTICLE VIII. Purchaser's Obligation to Close 8.1 Purchaser's Conditions. Purchaser shall not be obligated to close hereunder unless each of the following conditions shall exist on the Closing Date: (a) Title Policy. The Title Company shall issue (or shall be prepared and irrevocably and unconditionally committed to issue) the Title Policy as described in Section 4.4,subject to Purchaser's payment of the scheduled premium; in addition, Purchaser agrees that it will not take any action to prevent the Title Company from issuing the Title Policy or being prepared and irrevocably and unconditionally permitted to issue the Title Policy; 8 Page 942 of 2461 (b) Accuracy of Representations. Subject solely to Seller's right to update its representations and warranties set forth in Section 5.4 pursuant to Article V. all of the representations and warranties made by Seller in this Agreement or any of the Closing Documents shall be true,correct and complete in all material respects on and as of the Closing Date,and Seller will so certify; (c) Seller's Performance. Seller shall have, in all material respects, (i) performed all covenants and obligations, and (ii) complied with all conditions, required by this Agreement to be performed or complied with by Seller on or before the Closing Date or each such covenant, obligation and condition shall be waived by Purchaser in writing and in its sole and absolute discretion prior to the Closing; (d) JOPEN:No Actions or Proceedings.There shall be no Lawsuits.] (e) Marina Lease. The Marina Lease shall have been fully executed by Seller and the RDA, and Seller and the RDA shall have unconditionally delivered its counterpart of the Marina Lease into escrow with Escrow Agent, with the only conditions to delivery to Marina Lessee being consummation of Closing, and Seller agrees that it will not take any action to prevent the RDA from executing the Marina Lease. (f) Recognition Agreement. The Recognition Agreement shall have been fully executed by Seller, and Seller shall have unconditionally delivered its counterpart of the Recognition Agreement into escrow with Escrow Agent,with the only condition to delivery to the other parties thereto being consummation of Closing. (g) REA. The REA shall have been fully executed by Seller, and Seller shall have unconditionally delivered its counterpart of the REA into escrow with Escrow Agent, with the only condition to delivery to the other parties thereto being consummation of Closing. (h) Other Conditions. Any document or delivery required to be delivered by Seller pursuant to Section 10.2 shall have been delivered in accordance with Section 10.2. 8.2 Failure of Conditions. If any condition specified in Section 8.1 is not satisfied on or before the Closing Date, Purchaser may,at its option,and in its sole and absolute discretion,(a)waive any such condition and proceed to Closing without adjustment or abatement of the Purchase Price, or (b) terminate this Agreement by written notice thereof to Seller, in which case Escrow Agent shall return the Deposit to Purchaser. In addition to (and notwithstanding)the foregoing,if the failure of the condition is due to a breach by Seller hereunder,Purchaser may pursue any of its remedies under Section 12.1 (subject to applicable notice and cure periods), and if the failure of the condition is due to a breach by Purchaser hereunder,Seller may pursue any of its remedies under Section 12.2 (subject to applicable notice and cure periods). Purchaser acknowledges and agrees that Seller does not undertake and shall have no obligation to undertake any action with respect to any Lawsuit or any Marina Lawsuit. ARTICLE IX Seller's Obligation to Close 9.1 Seller's Conditions. Seller shall not be obligated to close hereunder unless each of the following conditions shall exist on the Closing Date: (a) Accuracy of Representations. Subject solely to Purchaser's right to update its representation and warranty set forth in Section 6.6 pursuant to Article VI,all of the representations and warranties made by Purchaser in this Agreement or any of the Closing Documents shall be true, correct and complete in all material respects on and as of the Closing Date,and Purchaser will so certify. (b) Purchaser's Performance. Purchaser shall have,in all material respects,(i)performed all covenants and obligations and (ii) complied with all conditions, required by this Agreement to be performed or complied with by Purchaser on or before the Closing Date or each such covenant,obligation and condition shall be waived by Seller in writing and in its sole and absolute discretion prior to Closing. 9 Page 943 of 2461 (c) Marina Lease. The Marina Lease shall have been fully executed by Marina Lessee and Marina Lessee shall have unconditionally delivered its counterpart of the Marina Lease into escrow with Escrow Agent,with the only conditions to delivery to the City being consummation of Closing. (d) Master Sublease. The Master Sublease shall have been fully executed by each of the parties thereto and each of the parties thereto shall have unconditionally delivered its counterpart of the Master Sublease into escrow with Escrow Agent, with the only conditions to delivery to the other parties thereto being consummation of Closing. (e) Recoanition Agreement. The Recognition Agreement shall have been fully executed by Marina Lessee and Master Sublessee, and Marina Lessee and Master Sublessee each shall have unconditionally delivered its counterpart of the Recognition Agreement into escrow with Escrow Agent, with the only condition to delivery to Seller being consummation of Closing. (f) REA. The REA shall have been fully executed by each of the parties thereto other than Seller, and each of the parties thereto other than Seller shall have unconditionally delivered its counterpart of the REA into escrow with Escrow Agent, with the only condition to delivery to the other parties thereto being consummation of Closing. (g) Lawsuits and Marina Lawsuits. Purchaser, Existing Marina Lessee, Marina Lessee and/or their respective affiliates shall be proceeding diligently and in good faith to defend such Lawsuit and/or Marina Lawsuit, as applicable, including exhaustion of all appeals of any Marina Lawsuit through the applicable Court of Appeal(as defined in the Development Agreement). (h) Other Conditions. Any document or delivery required to be delivered or caused to be delivered by Purchaser pursuant to Section 10.3 shall have been delivered in accordance with Section 10.3. 9.2 Failure of Conditions. If any condition specified in Section 9.1 is not satisfied on or before the Closing Date, Seller may, at its option,and in its sole and absolute discretion, (a) waive any such condition which can legally be waived and proceed to Closing without adjustment or abatement of the Purchase Price,or (b) terminate this Agreement,in which case Escrow Agent shall disburse the Deposit to Seller. If the parties disagree as to whether Purchaser, Existing Marina Lessee, Marina Lessee and/or their respective affiliates are proceeding diligently and in good faith to defend such Lawsuit and/or Marina Lawsuit,as applicable,including exhaustion of all appeals,such dispute shall be resolved by expedited arbitration in accordance with Article XIV hereof. In addition to (and notwithstanding) the foregoing, if the failure of the condition is due to a breach by Seller hereunder, Purchaser may pursue any of its remedies under Section 12.1 (subject to applicable notice and cure periods),and if the failure of the condition is due to a breach by Purchaser hereunder, Seller may pursue any of its remedies under Section 12.2(subject to applicable notice and cure periods). ARTICLE X Closing 10.1 Time of Closing. Subject to the provisions of this Agreement, the closing of the transactions contemplated hereby(the "Closing") shalI take place on the Closing Date through an escrow with Escrow Agent, whereby Seller, Purchaser and their attorneys need not be physically present and may deliver documents by overnight air courier or other means. The "Closine Date" shall be March 15, 2021 or such other date as may be mutually acceptable to the Purchaser and the City Commission. 10.2 Deliveries at Closing by Seller. On or before the Closing,Seller,at its sole cost and expense,shall deliver to Purchaser the following, each dated as of the Closing Date, in addition to all other items and payments required by this Agreement to be delivered by Seller at the Closing: (a) Deed. Seller shall execute and deliver an original duly executed and acknowledged special warranty deed conveying good and marketable fee simple title to the Residential Parcel to Purchaser, free of all Liens but subject only to the Permitted Exceptions, incorporating the restrictions and limitations set forth in 10 Page 944 of 2461 Sections 4.1(a)(v) and 4.1(b) of the Development Agreement, and otherwise in form and substance reasonably acceptable to Seller and Purchaser(the"Deed"). (b) Non-Foreign Affidavit. Seller shall execute and deliver an original duly executed Non- Foreign Affidavit in a form reasonably satisfactory to Seller,Purchaser and the Title Company. (c) Title Affidavits. Seller shall execute and deliver to the Title Company a customary title affidavit as may be reasonably required by the Title Company in order to issue the Title Policy as described in Section 4.4, including as may be required by the Title Company in order to issue a gap endorsement and delete all standard exceptions to the Title Policy, including, without limitation, the exceptions related to the parties in possession and mechanic's lien but excluding any exception for survey matters. (d) Marina Lease. Seller shall execute and deliver two counterparts of the Marina Lease and shall cause the RDA to execute two counterparts of the joinder thereto (or Seller shall instruct Escrow Agent to release from escrow Seller's and RDA's previously executed counterparts delivered into escrow with Escrow Agent). (e) Recognition Agreement. Seller shall execute and deliver two counterparts of the Recognition Agreement(or Seller shall instruct Escrow Agent to release from escrow Seller's previously executed counterparts delivered into escrow with Escrow Agent). (0 REA. Seller shall execute and deliver two counterparts of the REA (or Seller shall instruct Escrow Agent to release from escrow SeIler's previously executed counterparts delivered into escrow with Escrow Agent). (g) Closing Statement. Seller shall deliver two duly executed counterparts of a settlement statement of all allocations, closing costs and payments of moneys related to the Closing of the transactions contemplated by this Agreement(the"Closing Statement"). (h) Recertification. Seller shall deliver a certification that all of Seller's Representations are true and correct in all material respects as of the Closing Date, subject to the Seiler's right to update pursuant to Article V hereof. (i) Other Documents. Seller shall,as reasonably requested by Purchaser,the Title Company or the Escrow Agent, execute,acknowledge and deliver,or cause to be executed, acknowledged and delivered,any and all conveyances,assignments and all other instruments and documents as may be reasonably acceptable to Seller and reasonably necessary in order to complete the transaction herein provided and to carry out the intent and purposes of this Agreement. 10.3 Deliveries at Closing_by Purchaser. On or before the Closing, Purchaser, at its sole cost and expense, shall deliver to Escrow Agent the following, each dated as of the Closing Date, in addition to all other items and payments required by this Agreement to be delivered by Purchaser at the Closing: (a) Purchase Price. Purchaser shall direct Escrow Agent to deliver the Deposit to Seller,and Purchaser shall execute and deliver the PM Loan Documents to Seller. (b) Seller Title Policy. Purchaser shall cause the Title Company to issue(or be prepared and irrevocably and unconditionally committed to issue)the Seller Title Policy as described in Section 2.2(c)(vi). (c) PM Loan Documents. Purchaser shall execute and deliver the PM Loan Documents. (d) REA. Purchaser shall deliver two duly executed counterparts of the REA,and shall cause the Master Sublessee to execute and deliver two counterparts of the REA (or Purchaser shall instruct and shall cause Master Sublessee to instruct Escrow Agent to release from escrow Purchaser's and Master Sublessee's previously executed counterparts delivered into escrow with Escrow Agent). 11 Page 945 of 2461 (e) Master Sublease. Purchaser shall cause the Master Sublessee to execute and deliver two counterparts of the Master Sublease(or Purchaser shall cause Master Sublessee to instruct Escrow Agent to release from escrow Master Sublessee's previously executed counterparts delivered into escrow with Escrow Agent). (f) Recognition Agreement. Purchaser shall cause Master Sublessee to execute and deliver two counterparts of the Recognition Agreement(or Purchaser shall cause Master Sublessee to instruct Escrow Agent to release from escrow Master Sublessee's previously executed counterparts delivered into escrow with Escrow Agent). (g) Proof of Authority. Purchaser shall provide such proof of authority and authorization to enter into this Agreement and the transactions contemplated hereby, and such proof of the power and authority of the individual(s)executing or delivering any documents or certificates on behalf of Purchaser as may be reasonably required by Title Company,Seller or both. (h) Closing Statement. Purchaser shall deliver two duly executed counterparts of the Closing Statement. (i) Other Documents. Purchaser shall,as reasonably requested by Seller,the Title Company or the Escrow Agent,execute,acknowledge and deliver, or cause to be executed, acknowledged and delivered, any and all conveyances,assignments and all other instruments and documents as may be reasonably necessary in order to complete the transaction herein provided and to carry out the intent and purposes of this Agreement. ARTICLE XI Closing Expenses 11.1 Closing Costs. Whether or not the transactions contemplated by this Agreement are consummated, Purchaser shall pay its own and Seller's costs and expenses arising in connection with this Agreement, including the Closing (including its own and Seller's attorneys' and advisors' fees, charges and disbursements), except the costs set forth in this Section which shall be allocated between the parties as set forth herein; provided, however, that Purchaser's obligation to pay such costs and expenses of Seller arising after the parties finalize the form of this Agreement shall not exceed $50,000, in the aggregate; provided, however, in the event Purchaser thereafter requests any revisions or amendments to this Agreement, the Development Agreement, the REA, the Marina Lease, the Recognition Agreement or any other documents referenced herein that are not expressly contemplated by and referenced in this Agreement or such other documents, Purchaser shall be responsible for all of Seller's attorneys' and advisors' reasonable fees, charges and disbursements incurred in connection therewith notwithstanding the foregoing cap. Seller shall pay(i)the costs of curing those title objections that Seller has cured, if any, and (ii) the cost of discharging any Mandatory Cure Items and recording any instruments in connection therewith. Purchaser shall pay for (a) recording the Deed, the REA and the City Mortgage, each of which shall be recorded by the Escrow Agent promptly after Closing, (b) the premium for the Title Policy and the Seller Title Policy, (c) any documentary, transfer, surtax, stamp, sales, use, gross receipts or similar taxes related to the transfer of the Residential Parcel and(d)all PM Loan costs including,without limitation, documentary stamp taxes, intangible taxes, recording fees,title insurance fees and purchaser/borrower's attorneys' fees. 11.2 Survival. This ARTICLE XI shall survive Closing or earlier termination of this Agreement. ARTICLE XII Remedies 12.1 Breach by Seller. Seller shall be in default hereunder if: (a)any representation or warranty made by Seller is or becomes false in any material respect; or (b) Seller fails to cure (within the time frame set forth below) any breach of any obligation of Seller under this Agreement. If Seller defaults on any provision hereof, Purchaser, as a condition precedent to the exercise of its remedies or termination of this Agreement, shall be required to give Seller written notice of the same. Seller shall have 10 Business Days from the receipt of such notice to cure the default. If Seller timely cures the default,the default shall be deemed waived and this Agreement shall 12 Page 946 of 2461 continue in full force and effect. If Seller fails to timely cure such default, Purchaser, at Purchaser's option,either may: (i) terminate this Agreement, in which event (A) the Deposit shall be returned to Purchaser and (B) both parties shall be discharged from all duties and performance hereunder, except for any obligations which by their terms survive any termination of this Agreement; OR (ii) pursue specific performance of Seller's obligations hereunder (without the necessity of proving irreparable harm or posting any security), including to convey the Residential Parcel as provided herein. If Purchaser elects to pursue specific performance pursuant to this Section 12.1 but specific performance as contemplated in this Section 12.1 is unavailable to Purchaser as a result of Seller having sold the Residential Parcel to a Person other than Purchaser or an affiliate thereof designated by Purchaser and approved by Seller, then and only then, Seller shall reimburse Purchaser for Purchaser's direct and actual damages, including without limitation all of its out-of-pocket costs and expenses (including reasonable attorneys' fees,costs and disbursements)related to the negotiation of this Agreement and the transactions contemplated hereby and Purchaser's due diligence. 12.2 Breach by Purchaser. Purchaser shall be in default hereunder if: (a) any representation or warranty made by Purchaser is or becomes false in any material respect; or(b) Purchaser fails to cure (within the time frame set forth below) any breach of any obligation of Purchaser under this Agreement. If Purchaser defaults on any provision hereof, Seller, as a condition precedent to the exercise of its remedies or termination of this Agreement, shall be required to give Purchaser written notice of the same. Purchaser shall have 3 Business Days from the receipt of such notice to cure the default. If Purchaser timely cures the default,the default shall be deemed waived and this Agreement shall continue in full force and effect. If Purchaser fails to timely cure such default, Seller shall be entitled to terminate this Agreement pursuant to the terms of this Section 12.2. IF SELLER TERMINATES THIS AGREEMENT PURSUANT TO THIS SECTION 12.2 DUE TO PURCHASER'S FAILURE TO CONSUMMATE THE CLOSING IN BREACH HEREOF, PURCHASER AND SELLER AGREE THAT SELLER'S ACTUAL DAMAGES WOULD BE IMPRACTICABLE OR EXTREMELY DIFFICULT TO FIX. THE PARTIES THEREFORE AGREE THAT, IN SUCH EVENT, SELLER, AS SELLER'S SOLE AND EXCLUSIVE REMEDY, IS ENTITLED TO LIQUIDATED DAMAGES IN THE AMOUNT OF THE DEPOSIT ACTUALLY PAID,PLUS, IF APPLICABLE,THE ADDITIONAL AT RISK REQUIRED DEPOSIT (IN EACH CASE EXCLUSIVE OF ANY INTEREST EARNED THEREON), IN WHICH CASE (A) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF PURCHASER AND SELLER HEREUNDER SHALL BE OF NO FURTHER FORCE OR EFFECT AND NEITHER PARTY SHALL HAVE ANY FURTHER RIGHTS OR OBLIGATIONS HEREUNDER OTHER THAN PURSUANT TO ANY PROVISION HEREOF WHICH EXPRESSLY SURVIVES THE TERMINATION OF THIS AGREEMENT, (B) ESCROW AGENT SHALL DELIVER THE DEPOSIT ACTUALLY PAID(EXCLUSIVE OF ANY INTEREST EARNED THEREON),AND, IF APPLICABLE, PURCHASER SHALL DELIVER THE ADDITIONAL AT RISK REQUIRED DEPOSIT, TO SELLER PURSUANT TO SELLER'S INSTRUCTIONS, AND THE SAME SHALL BE THE FULL, AGREED AND LIQUIDATED DAMAGES,AND(C)ESCROW AGENT SHALL DELIVER TO PURCHASER ANY AND ALL INTEREST EARNED ON THE DEPOSIT. THE PARTIES HEREBY AGREE THAT THE AMOUNT OF THE DEPOSIT ACTUALLY PAID, PLUS, IF APPLICABLE, THE ADDITIONAL AT RISK REQUIRED DEPOSIT, IS A FAIR AND REASONABLE ESTIMATE OF THE TOTAL DETRIMENT THAT SELLER WOULD SUFFER IN THE EVENT OF PURCHASER'S FAILURE TO CONSUMMATE THE CLOSING IN BREACH HEREOF. SELLER IRREVOCABLY WAIVES THE RIGHT TO SEEK OR OBTAIN ANY OTHER LEGAL OR EQUITABLE REMEDIES, INCLUDING THE REMEDIES OF DAMAGES AND SPECIFIC PERFORMANCE FOR PURCHASER'S FAILURE TO CONSUMMATE THE CLOSING IN BREACH HEREOF. 12.3 Notwithstanding anything to the contrary set forth in this Agreement, Sections 12.1 and 12. 2 of this Agreement shall not be deemed to modify Section 15.16 of this Agreement. ARTICLE XIII Escrow 13.1 Escrow Agent is hereby appointed and designated to act as Escrow Agent hereunder and is instructed to hold and deliver,pursuant to the terms of this Agreement,the documents and funds to be deposited into escrow as provided in this Agreement. 13 Page 947 of 2461 13.2 Escrow Agent shall not be bound in any way by any other agreement or contract between Seller and Purchaser, whether or not Escrow Agent has knowledge thereof. Escrow Agent's only duties and responsibilities shall be to hold the Deposit and other documents delivered to it as agent and to dispose of the Deposit and such documents in accordance with the terms of this Agreement. Without limiting the generality of the foregoing, Escrow Agent shall have no responsibility to protect the Deposit, or to place the Deposit in an account that is not sufficiently FDIC insured, and shall not be responsible for any failure to demand,collect or enforce any obligation with respect to the Deposit or for any diminution in value of the Deposit from any cause, other than Escrow Agent's gross negligence or willful misconduct. Escrow Agent may,at the expense of Seller and Purchaser, consult with counsel and accountants in connection with its duties under this Agreement. Escrow Agent shall not be liable to the parties hereto for any act taken,suffered or permitted by it in good faith in accordance with the advice of counsel and accountants. Escrow Agent shall not be obligated to take any action hereunder that may, in its reasonable judgment, result in any liability to it unless Escrow Agent shall have been furnished with reasonable indemnity satisfactory in amount, form and substance to Escrow Agent. 13.3 Seller and Purchaser hereby indemnify Escrow Agent and hold it harmless from and against any and all claims, liabilities, damages, costs,penalties, losses, actions, suits or proceedings at law or in equity, or any other expenses, fees,or charges of any character or nature,which it may incur or with which it may be threatened, directly or indirectly, arising from, or in any way connected with, this Agreement, unless such claims, liabilities, damages,costs,penalties, losses,actions,suits or proceedings,or any such other expenses,fees, or charges,shall be due to willful and malicious breach of this Agreement or gross negligence on the part of Escrow Agent. 13.4 All parties to this Agreement acknowledge and agree that Escrow Agent shall not be liable to any party or person whomsoever for any action taken in good faith, including, but not limited to, the misdelivery to Purchaser or Seller of documents or funds subject to escrow hereunder, unless such action, including misdelivery, shall be due to willful and malicious breach of this Agreement or gross negligence on the part of Escrow Agent. Escrow Agent is acting as a stakeholder only with respect to the Deposit and other documents to be delivered hereunder. If there is any dispute as to whether Escrow Agent is obligated to deliver the Deposit or such documents or as to whom the Deposit or such documents are to be delivered, Escrow Agent shall not make any delivery, but shall hold the Deposit and such documents until receipt by Escrow Agent of an authorization in writing, signed by Seller and Purchaser, directing the disposition of the Deposit and such documents, or, in the absence of authorization,Escrow Agent shall hold the Deposit and such documents until the final determination of the rights of the parties in an appropriate proceeding. Escrow Agent shall have no responsibility to determine the authenticity or validity of any notice, instruction, instrument,document or other item delivered to it,and it shall be fully protected in acting in accordance with any written notice, direction or instruction given to it under this Agreement and believed by it to be authentic. If written authorization is not given,or proceedings for a determination are not begun, within thirty(30)days after the Closing Date and diligently continued, Escrow Agent may, but is not required to, bring an appropriate action or proceeding for leave to deposit the Deposit and documents with a court of the State of Florida pending a determination. Escrow Agent shall be reimbursed for all costs and expenses of any action or proceeding, including, without limitation, reasonable attorneys' fees and disbursements incurred in its capacity as Escrow Agent, by the non-prevailing party. Upon making delivery of the Deposit and documents in the manner provided in this Agreement,Escrow Agent shall have no further liability hereunder. In no event shall Escrow Agent be under any duty to institute, defend or participate in any proceeding that may arise between Seller and Purchaser in connection with the Deposit or documents. 13.5 Seller acknowledges that the Escrow Agent is Purchaser's attorney, and that Escrow Agent is hereby authorized to represent Purchaser and/or itself with respect to this transaction and in any litigation relating thereto and, in any event, Escrow Agent may continue to serve as both Escrow Agent and attorney for Purchaser. Seller shall not object to,and is hereby estopped from objecting to,such representation. 13.6 All notices required or permitted to be sent to Escrow Agent shall be in writing and shall be hand delivered or sent by recognized overnight courier(such as UPS or FedEx)addressed as follows: Laura Gangemi, Esq., Gangemi Law Group, PLLC, 3310 Mary Street, Suite 303, Miami, FL 33133, with a copy to laura@g- law.com, or to such other address as shall, from time to time, be supplied in writing by Escrow Agent. Any such notice shall be deemed given upon receipt by the addressees. 14 Page 948 of 2461 ARTICLE XIV Dispute Resolution 14.1 Any dispute arising under Section 9.2 of this Agreement with respect to whether Purchaser, Marina Lessee, Existing Marina Lessee and/or their respective affiliates are proceeding diligently and in good faith to defend a Lawsuit and/or Marina Lawsuit, as applicable, including the exhaustion of all appeals("Dispute") will first be submitted, by written notice("Notice of Dispute"),to a designated representative of Seller and a designated representative Purchaser who will meet at Seller's place of business or other mutually agreeable location, or by teleconference,and confer in an effort to resolve such Dispute. Any decision of the representatives will be final and binding on the Parties. In the event the representatives are unable to resolve any Dispute within ten (10)days after receipt of the Notice of Dispute,then Purchaser,as its sole remedy,may submit such matter to JAMS Miami Center for resolution on an expedited basis without any pre-hearing discovery before an arbitrator(the"Neutral"). 14.2 If Purchaser elects to proceed with an Arbitrator in accordance with Section 14.1 above the determination will be made by(a) an expert selected jointly by Seller and Purchaser from the panel of Neutrals at Jams Miami Center,or(b)if Seller and Purchaser fail to agree upon a Neutral, by an expert selected by Seller from the panel of Neutrals at Jams Miami Center, a Neutral selected by Purchaser from the panel of Neutrals at Jams Miami Center and a third expert appointed by the Neutrals selected by the parties. Any Arbitrator or expert panelist hereunder will be a certified mediator with at least ten(10) years of professional experience litigating commercial contract disputes. The parties agree that no discovery(as the term is commonly construed in litigation proceedings) will be permitted and agree that neither party nor the Arbitrator shall have discovery rights in connection with a Dispute hereunder. The proceeding before the Arbitrator shall be conducted in an informal and expeditious manner. No transcript or recording shall be made. Each party shall have the opportunity to make a brief statement and to present documentary and other support for its position, which may include the testimony of not more than four(4) individuals, two (2) of whom may be outside experts. There shall be no presumption in favor of either party's position. Any procedural matter not covered herein shall be governed by procedures mutually agreed upon by the Parties, or if they are unable to agree, in accordance with the JAMS Expedited Arbitration Procedures(as amended hereby). 14.3 The matter submitted to the Arbitrator will be conclusively determined within thirty(30)days of the appointment of the last Arbitrator by (i) the decision of the single mutually agreed Neutral,(ii) the decision of any two of the three selected Neutrals,if two are able to agree,(iii)the decision of the third expert, if no two of the three experts are able to agree within such period,or(iii)agreement between the parties prior to and independently of the decision of the Arbitrator 14.4 The Arbitrator will determine that Purchaser,Marina Lessee, Existing Marina Lessee and/or their respective affiliates either did proceed diligently and in good faith to defend a Lawsuit and/or Marina Lawsuit,as applicable, including the exhaustion of all appeals, or did not proceed diligently and in good faith to defend a Lawsuit and/or Marina Lawsuit, as applicable, including the exhaustion of all appeals. If any matter submitted to the Arbitrator hereunder is settled by agreement between the parties prior to, and independently of, the final determination of the Arbitrator,any and all expenses of such binding determination(including fees of the Arbitrator) will be shared equally by the parties; otherwise, the expense of such binding determination resolved by final determination of the Arbitrator (including fees of the Arbitrator) will be borne by the party against whom such determination has been concluded. ARTICLE XV Miscellaneous 15.1 Brokers. Seller and Purchaser each hereby represent, warrant to and agree with the other that it has not had,and it shall not have,any dealings with(and it has not engaged and it will not engage)any third party to whom the payment of any broker's fee,finder's fee,commission or similar compensation shall or,may become due or payable in connection with the transactions contemplated hereby. Each party shall be responsible for, and shall indemnify and hold harmless the other with respect to,the payment of any commission claimed by or owed to any real estate broker or other Person retained by such party and which is entitled to a commission as a result of the 15 Page 949 of 2461 execution and delivery of this Agreement. This provision shall survive the Closing or any termination of this Agreement. I5.2 Expenses. Subject to the payment of Closing costs pursuant to Section 11.1 and any other provision of this Agreement,whether or not the transactions contemplated by this Agreement are consummated,all fees and expenses incurred by any party hereto in connection with this Agreement shall be borne by such party. 15.3 Further Assurances. Each of the parties hereto agrees to perform, execute and deliver such documents,writings,acts and further assurances as may be reasonably necessary to carry out the intent and purpose of this Agreement. 15.4 Survival of Representations and Warranties. (a) Except as expressly set forth in this Agreement,all of Seller's and Purchaser's respective representations,warranties and covenants shall merge with and into the Deed. (b) Intentionally Deleted. 15.5 Partial Invalidity. If any provision or term of this Agreement is determined to be unenforceable, such provision or term shall be reformed and enforced to the maximum extent permitted by Law. If it cannot be reformed, it shall be stricken from and construed for all purposes not to constitute a part of this Agreement,and the remaining portions and terms of this Agreement shall remain in full force and effect and shall, for all purposes, constitute this entire Agreement. 15.6. Time of Essence. Time shall be of the essence with respect to all matters contemplated by this Agreement. Notwithstanding the foregoing or anything to the contrary contained in this Agreement or the PM Loan Documents,the Interest Commencement Date and the final payment of the Purchase Price may be tolled up to forty two(42)months in connection with Lawsuits and Marina Lawsuits provided the same are being diligently pursued in good faith and shall be reasonably extended for (i) Unavoidable Delay (in accordance with the Development Agreement);and/or(ii)Seller Delays. 15.7 Construction of Agreement. All parties hereto acknowledge that they have had the benefit of independent counsel with regard to this Agreement and that this Agreement has been prepared as a result of the joint efforts of all parties and their respective counsel. Accordingly, all parties agree that the provisions of this Agreement shall not be construed or interpreted for or against any party hereto based upon authorship. 15.8 Amendments/Waiver. No amendment, change or modification of this Agreement shall be valid unless the same is in writing and signed by Purchaser and Seller. No waiver of any of the provisions of this Agreement shall be valid unless in writing and signed by the party against whom it is sought to be enforced. No waiver of any provision shall be deemed a continuing waiver of such provision or of this Agreement. No amendment to Sections 2.2(b) or(d) or Article XIII shall be binding against Escrow Agent unless in writing and signed by Escrow Agent. The City Manager shall have the delegated authority (but not the obligation), after consultation with the City's Chief Financial Officer and City Attorney,to negotiate and execute modifications to the REA and PM Loan Documents with such changes, alterations and corrections as may be approved by the City Manager and the City Attorney solely to the limited extent as may be necessary to: (i) reasonably facilitate the Closing, provided,however, in no event shall(x)the PM Loan Documents be modified with respect to the amount of the PM Loan or the timing and amounts of the principal and interest payments of the PM Loan, including installment payments, interest payment dates and the maturity date or(y) the REA be modified with respect to the Project restrictions set forth therein, which restrictions shall conform in all respects to the Project restrictions set forth in Sections 4.1(a)and(b)of the Development Agreement; and(ii)conform the initial legal description of the Residential Parcel to the updated and actual legal description thereof following receipt of all Governmental Approvals and following completion of construction of the Project in accordance with the Development Agreement. All other amendments to this Agreement and the PM Loan Documents must be approved by majority vote of the City Commission,subject to the requirements of applicable law. 16 Page 950 of 2461 15.9 Entire Agreement. This Agreement,together with the Exhibits and Schedules attached hereto and the Development Agreement, constitutes the entire agreement between the parties relating to the subject matter hereof and supersedes all prior negotiations, agreements, understandings, letters of intent and discussions(whether oral or written)between the parties,and there are no promises,agreements,conditions, undertakings, warranties or representations,oral or written,express or implied, between the parties other than as expressly herein or therein set forth. 15.10 Counterparts; Facsimile. This Agreement may be executed in one or more counterparts, each of which will constitute an original,and all of which together shall constitute one and the same agreement. Executed copies hereof may be delivered by facsimile, PDF,DocuSign or email,and,upon receipt,shall be deemed originals and binding upon the parties hereto. Without limiting or otherwise affecting the validity of executed copies hereof that have been delivered by facsimile, PDF, DocuSign or email, the parties will deliver originals as promptly as possible after execution. 15.11 Dates. If any date set forth in this Agreement for the delivery of any document or the happening of any event(such as, for example, the Closing Date) should, under the terms hereof, fall on a non-Business Day, then such date shall be extended automatically to the next succeeding Business Day. 15.12 Governing Law/Jurisdiction. This Agreement and the legal relations between the parties hereto shall be governed by and construed in accordance with the internal laws of the state in which the Residential Parcel is located, without regard to the conflicts of laws principles thereof. With respect to any claim or action arising hereunder or under this Agreement,each of Seller and Purchaser(a)irrevocably submits to the exclusive jurisdiction of the courts of the State of Florida located in Miami-Dade County, Florida, and the United States District Court Iocated in Miami-Dade County,Florida and(ii) irrevocably waives any objection which it may have at any time to the laying on such venue of any suit,action or proceeding arising out of or relating to this Agreement. 15.13 Notices. All notices, consents, reports, demands,requests and other communications required or permitted hereunder("Notices")shall be in writing,and shall be: (a)personally delivered with a written receipt of delivery; (b) sent by a nationally recognized overnight delivery service requiring a written acknowledgement of receipt or providing a certification of delivery or attempted delivery; (c) sent by registered or certified U.S. mail, postage prepaid,return receipt requested; (d)sent by PDF or email with an original copy thereof transmitted to the recipient by one of the means described in subsections(a),j or Isl. All Notices shall be deemed effective when actually delivered as documented in a delivery receipt;provided, however, that if the Notice was sent by overnight courier or mail as aforesaid and is affirmatively refused or cannot be delivered during customary business hours by reason of the absence of a signatory to acknowledge receipt, or by reason of a change of address with respect to which the addressor did not have either knowledge or written notice delivered in accordance with this section, then the first attempted delivery shall be deemed to constitute delivery;and provided further,however,that Notices given by PDF or email shall be deemed given when received. Each party shall be entitled to change its address for Notices from time to time by delivering to the other party Notice thereof in the manner herein provided for the delivery of Notices. All Notices shall be sent to the addressee at its address set forth below: To Seller: To: City Manager City of Miami Beach, Florida 1700 Convention Center Drive,4th Floor Miami Beach,Florida 33139 With Copies To: City Attorney City of Miami Beach,Florida 17 Page 951 of 2461 1700 Convention Center Drive,4th Floor Miami Beach, Florida 33139 To Purchaser: Marina Park Residential,LLC 3310 Mary Street - Suite 302 Coconut Grove,Florida 33133 Attention: David P.Martin and Ellen Buckley With a copy to: Gangemi Law Group,PLLC 3310 Mary Street Suite 303 Miami,Florida 33133 Attention: Laura Gangemi,Esq. E-mail: Iaura@g-law.com Any notice required hereunder to be delivered to the Escrow Agent shall be delivered in accordance with above provisions as follows: Gangemi Law Group,PLLC 3310 Mary Street Suite 303 Miami,Florida 33133 Attention: Laura Gangemi,Esq. E-mail: Iaura@g-law.com Unless specifically required to be delivered to the Escrow Agent pursuant to the terms of this Agreement, no notice hereunder must be delivered to the Escrow Agent in order to be effective so long as it is delivered to the other party in accordance with the above provisions. 15.14 Headings/Use of Terms/Exhibits. The paragraph and section headings that appear in this Agreement are for purposes of convenience of reference only and are not to be construed as modifying,explaining, restricting or affecting the substance of the paragraphs and sections in which they appear. Wherever the singular number is used, and when the context requires, the same shall include the plural and the masculine gender shall include the feminine and neuter genders. The term"including"means"including, but not limited to"and"such as"means"such as,but not limited to"and similar words are intended to be inclusive. All references to Sections and articles mean the Sections and articles in this Agreement. All Exhibits and Schedules attached hereto are hereby incorporated herein by reference as though set out in full herein. 15.15 Assignment. Purchaser may assign all or any portion of this Agreement or its rights hereunder,or delegate all or any portion of its duties or obligations, without Seller's written consent, in connection with any Transfer that is a Permitted Transfer. Additionally,after Closing, Purchaser shall also have the right to collaterally assign this Agreement to any lender providing financing for the Project or any portion thereof and the enforcement by any such lender of its rights under the financing documents shall not constitute an assignment of this Agreement requiring the consent of Seller. Purchaser shall give Seller notice of the assignment or delegation and such assignment or delegation shall not relieve Purchaser of its obligations hereunder. Seller shall not assign this Agreement or any rights hereunder, or delegate any of its obligations, without the prior written approval of Purchaser. Subject to the provisions of this section,this Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, personal representatives, successors and permitted assigns. Except as specifically set forth or referred to herein, nothing herein expressed or implied is intended or shall be construed to 18 Page 952 of 2461 confer upon or give to any person or entity,other than the parties hereto and their successors or permitted assigns, any rights or remedies under or by reason of this Agreement. 15.16 Attorney's Fees. If litigation or arbitration is required by either party to enforce or interpret the terms of this Agreement,the substantially prevailing party of such action or arbitration shall, in addition to all other relief granted or awarded by the court or arbitrator, be awarded costs and reasonable attorneys' fees, charges and disbursements (including those of in-house counsel)and expert witnesses fees and costs incurred by reason of such action or arbitration and those incurred in preparation thereof at both the trial or arbitration and appellate levels. This Section shall survive Closing and any termination of this Agreement. 15.17 Waiver of Jury Trial. TO THE MAXIMUM EXTENT PERMITTED BY LAW, SELLER AND PURCHASER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER OF THEM OR THEIR HEIRS,PERSONAL REPRESENTATIVES,SUCCESSORS OR ASSIGNS MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH,OR ANY COURSE OF CONDUCT,COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN)OR ACTIONS OF ANY PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT TO THE PARTIES ENTERING INTO THIS AGREEMENT. [Signature Pages Follow] 19 Page 953 of 2461 IN WITNESS WHEREOF, Purchaser has caused this Agreement to be duly signed in its name, and the City has caused this Agreement to be signed in its name by the Mayor, and duly attested to by the City Clerk, and approved as to form and sufficiency by the City Attorney,on the day and year first above written. PURCHASER Signed,sealed and delivered MARINA PARK RESIDENTIAL, LLC in the presence of By: Print Name: Name: Title: Print Name: ADSL LP-00080351.18 [Signature page to: PURCHASE AND SALE AGREEMENT] Page 954 of 2461 CITY Signed,sealed and delivered THE CITY OF MIAMI BEACH,FLORIDA,a in the presence of Florida municipal corporation By: Print Name: Dan Gelber Mayor Print Name: ATTEST Approved for form and legal sufficiency By: By: City Clerk City Attorney ADSLLP-0008035L18 [Signature page to: PURCHASE AND SALE AGREEMENT] Page 955 of 2461 SCHEDULE A-1 LEGAL DESCRIPTION-RESIDENTIAL PARCEL A maximum of 0.3 acres of the following described land to consist of the to-be-designed lobby and ancillary areas of the residential portion of the Project: All of Lots 22 through 31, inclusive, and Lot 21, LESS the Southerly 40.00 feet thereof, in Block 111, of OCEAN BEACH, FLORIDA ADDITION NO. 3, according to the Plat thereof, as recorded in Plat Book 2, Page 81, of the Public Records of Miami-Dade County, Florida,. TOGETHER WITH air space above such Lots to the extent required for the 275,000 square foot residential improvements to be constructed therein. The proposed design of the commercial and residential portion of the Project will evolve through the design development process and accordingly, the initial legal description of the Residential Parcel will be preliminary in nature and will be attached to this Agreement by amendment prior to Closing. The initial legal description will be consistent with the limitations contained herein and, in accordance with the Development Agreement, shall be sufficient to accommodate the design development for the residential portion of the Project and will thereafter be revised to conform to the updated and actual legal description thereof following receipt of all Governmental Approvals and following completion of the Project in accordance with the,Development Agreement. ADSLLP-00080351.18 A-1 Page 956 of 2461 SCHEDULE A-2 LEGAL DESCRIPTION—AREA I All of Lots 22 through 31,inclusive,and Lot 21, LESS the Southerly 40.00 feet thereof, in BIock 1 I, of OCEAN BEACH, FLORIDA ADDITION NO. 3,according to the Plat thereof, as recorded in Plat Book 2, Page 81, of the Public Records of Miami-Dade County,Florida,less and except the Residential Parcel ADSL LP-00080351.18 A-2 Page 957 of 2461 SCHEDULE A-3 LEGAL DESCRIPTION—AREA 2 A portion of land lying West of and adjacent to Block 111, of OCEAN BEACH, FLORIDA ADDITION NO. 3, according to the Plat thereof,as recorded in Plat Book 2,at Page 81,of the Public Records of Miami-Dade County, Florida, more particularly described as follows; Commence at the Northwest corner of Section 3, Township 54 South,Range 42 East;Thence run Easterly along the North line of said Section 3 for 1,350.00 feet,more or Iess,to a point on the East line of Block 90 of the aforementioned Plat;Thence run South 00 degrees 30'00" E along the East line of Blocks 90, 89, 88, 87, 86, 85, 84, 83, 82, 81, 80, 79 and a portion of Block 1 l 1 and along their Southerly extensions for 5,207.00 feet to the Southeast corner of Lot 1, Block 111 of said Subdivision; Thence run S 89 degrees 05'00" W,along the South line of said Lot 1, Block 111 for 260.00 feet to a point on the East water line of Biscayne Bay,said point also being the POINT OF BEGINNING of the Tract of land hereinafter described;Thence run N 32 degrees 12' 16" W, along a line 300.00 feet West of and parallel with the Westerly right of way line of Alton Road for 2,159.28 feet to a point,Thence run N 28 degrees 29'08" W for 323.93 feet to an intersection with a line that is 35.00 feet Northerly of and parallel with the North line of a lot designated 49 B as shown on the AMENDED PLAT OF LOTS 43 TO 50, BLOCK 1 1 1, OCEAN BEACH, FLA.,ADDITION NO.3,as recorded in Plat Book 14,at Page 70,of the Public Records of Miami-Dade County,Florida;Thence run N 88 degrees 07'28"W for 35.69 feet;Thence run S 57 degrees 47'44"W for 254.60 feet;Thence run N 32 degrees 12'16"W for 20.00 feet; Thence run S 57 degrees 47'44" W for 300.00 feet to a point;Thence run S 32 degrees 12' 16" E for 1,154.00 feet to a point;Thence run S 57 degrees 47'44"W for 150.00 feet to a point;Thence run S 32 degrees 12' 16" E for 500.00 feet to a point;Thence run N 57 degrees 47'44" E for 150.00 feet to a point;Thence run S 32 degrees 12' 16" E for 912.00 feet to a point;Thence run S 67 degrees 48'22"E for 347.79 feet to a point; Thence run N 57 degrees 47'44" E for 360.62 feet,more or less,to other lands of The City of Miami Beach;Thence run N 32 degrees 11 '37" W for 326.25 feet,more or less,by other lands of The City of Miami Beach,to the POINT OF BEGINNING ADSLLP-00080351.18 A-3 Page 958 of 2461 SCHEDULE B DEFINITIONS "2020 Referendum"has the meaning ascribed to it in Section 1.1. "2021 Referendum"has the meaning ascribed to it in Section 1.1. "Additional Deposit"has the meaning set forth in Section 2.2(b). "Agreement"has the meaning set forth in the introductory paragraph. "Arbitrator"has the meaning set forth in Section 14.1(0. "Area 1"means the property legally described on Schedule A-2 attached hereto and by this reference made a part hereof. "Area 2"means the property legally described on Schedule A-3 attached hereto and by this reference made a part hereof. "Additional At Risk Required Deposit" means Two Million and No/100 Dollars ($2,000,000.00) if Purchaser defaults under this Agreement on or after the date the Additional Deposit is due. "Business Day" means each day of the year other than Saturdays, Sundays, legal holidays and days on which banking institutions are generally authorized or obligated by Law to close in either the state of Florida or the state in which the Residential Parcel is located. "C "has the meaning set forth in the introductory paragraph. "City Code"has the meaning set forth in the Recitals. "City Commission"means the governing and legislative body of the City. "City Parties"means the officers,employees,agents and instrumentalities of the City. "Closing"has the meaning set forth in Section 10.1. "Closing Date"has the meaning set forth in Section 10.1. "Closing Documents" means those documents required to be delivered by Seller or Purchaser at the Closing pursuant to Sections 10.2 and 10.3 or pursuant to or in connection with any other provision of this Agreement. "Closing Statement"has the meaning set forth in Section 10.2(g). "Code"means the Internal Revenue Code of 1986,as amended. "Construction Commencement Conditions"has the meaning set forth in the Development Agreement. "Deed"has the meaning set forth in Section 10.2(0. "Deposit"has the meaning set forth in Section 2.2(b). "Design Review Board"means the Design Review Board of the City of Miami Beach Schedule B Page 959 of 2461 "Development Agreement" means that certain Development Agreement 2020- - for the development of the Marina Park Project dated as of the date hereof by and between Seller, on the one hand, and Purchaser and Master Sublessee,collectively,jointly and severally,as"Developer"on the other hand,and having an effective date,subject to Section 1.1 hereof,as of the Effective Date. "Dispute"has the meaning set forth in Section 14.1(a). "Effective Date"has the meaning set forth in the Section 1.2. "Escrow Agent"means Gangemi Law Group,PLLC. "Existing Marina Lease" means that certain Marina Lease by and between the City, as lessor, and Existing Marina Lessee,as lessee,dated as of June 24, 1983,as subsequently amended through April 15, 1998. "Existing Marina Lessee"means Miami Beach Marina Associates,Ltd.,a Florida limited partnership. "Existing Recognition Agreements" means that certain Non-Disturbance and Attornment Agreement and Consent to Assignment by and between the City and Monty's Sunset LLC recorded in Official Records Book 27841, Page 1529, of the public records of Miami-Dade County, Florida and to the extent in effect, a non-disturbance agreement between the City and Texas De Brazil(South Beach)Corporation. "Existing Subleases" means subleases between Existing Marina Lessee or any of its predecessors in interest under the Existing Marina Lease with Existing Sublessees. "Existing Sublessees"means the Persons listed on Schedule G attached hereto. "First Deposit"has the meaning set forth in Section 2.2(a). "Force Majeure Event" means the following: acts of God; strikes, lockouts or other industrial disturbances; acts of public enemies, whether actual or threatened; orders of any civil or military authority; insurrections; riots; acts of terrorism; epidemics; pandemics; landslides, earthquakes, lightning, fires, hurricanes, storms,floods,washouts and other natural disasters; inability to procure or a general shortage of labor,equipment, facilities, materials or supplies in the open market,or failure or unavailability of transportation generally; or other similar extraordinary causes beyond the commercially reasonable control of the party claiming such inability. In no event shall"Force Majeure Event"include economic hardship or financial inability to perform specific to the party. "Governmental Authority" means any federal, state, county, municipal or other governmental department,entity,authority,commission,board, bureau,court,agency,or any instrumentality of any of them,with jurisdiction over the Project Site or any portion thereof. "Governmental Requirements" means any law, enactment, statute, code, order, ordinance, rule, regulation,judgment,decree,writ, injunction,franchise,permit,certificate, license,or other similar requirement of any Governmental Authority,now existing or hereafter enacted,adopted,promulgated, entered,or issued,affecting the Project Site or any portion thereof. "Laws"means all federal,state and local laws,statutes,codes,regulations,rules,ordinances, orders,policy directives,judgments or decrees(including common law),including those of judicial and administrative bodies. "Lawsuits"has the meaning set forth in the Development Agreement. "Liens" means Iiens, encumbrances, claims,covenants, conditions, restrictions, easements, rights of way, options,pledges,judgments or other similar matters. "Losses"means all actual damages(excluding consequential, speculative, punitive and similar damages), losses, liabilities,claims,actions, interest,penalties, demands, obligations,judgments,expenses or costs(including Schedule B Page 960 of 2461 reasonable attorneys' fees, charges and disbursements (but excluding those of in-house counsel),and appeals, and expert witness fees). "Mandatory Cure Items"has the meaning set forth in Section 4.2. "Marina Lawsuits"has the meaning set forth in the Development Agreement. "Marina Lease"means a certain Ground Lease Agreement to be executed between Seller,as lessor,joined in by the RDA, if applicable, and Marina Lessee, as lessee, in form and substance acceptable to Purchaser and Seller. "Marina Lessee"means MB Marina Park, LLC,a Delaware limited liability company, and its successors and assigns that are permitted under or approved in accordance with the terms of the Marina Lease. "Master Sublease" means a Master Sublease Agreement to be executed between Marina Lessee, as Sublessor,and Master Sublessee,as sublessee,in form and substance acceptable to Purchaser and Seller. "Master Sublessee"means Marina Park Commercial,LLC, a Delaware limited liability company, and its successors and assigns that are permitted under or approved in accordance with the terms of the Master Sublease. "Notices"has the meaning set forth in Section 15.13. "Permitted Exceptions"has the meaning set forth in Section 4.3. "Permitted Transfer"has the meaning set forth in the Development Agreement. "Person" means any corporation, unincorporated association or business, limited liability company; business trust,real estate investment trust,common law trust,or other trust, general partnership,limited partnership, limited liability limited partnership,limited liability partnership,joint venture,or two or more persons having a joint or common economic interest, nominee, or other entity, or any individual (or estate of such individual); and shall include any Governmental Authority. "PM Loan"has the meaning set forth in Section 2.2(c). "PM Loan Documents"has the meaning set forth in Section 2.2(c)(i). "Prohibited Person"means any of the following: any of the following Persons: (A)any Person(whose operations are directed or controlled by an individual)who has been convicted of or has pleaded guilty in a criminal proceeding for a felony or who is an on-going target of a grand jury investigation convened pursuant to United States laws concerning organized crime;or(B)any Person organized in or controlled from a country,the effects of the activities with respect to which are regulated or controlled pursuant to the following United States laws and the regulations or executive orders promulgated thereunder to the extent the same are then effective: (x) the Trading with the Enemy Act of 1917, 50 U.S.C. App. §1, et seq., as amended (which countries are, as of the date hereof, North Korea, Cuba and Venezuela); (y) the International Emergency Economic Powers Act of 1976, 50 U.S.C. §1701, et seq., as amended; and (z) the Anti-Terrorism and Arms Export Amendments Act of 1989, codified at Section 6(j)of the Export Administration Act of 1979,50 U.S.C. App. § 2405(j), as amended(which countries are, as of the date hereof, Iran,Sudan and Syria);or(C) any Person who has engaged in any dealings or transactions(i) in contravention of the applicable money laundering laws or regulations or conventions or (ii) in contravention of Executive Order No. 13224 dated September 24,2001 issued by the President of the United States(Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism),as may be amended or supplemented from time-to-time or any published terrorist or watch list that may exist from time to time; or(D) any Person who appears on or conducts any business or engages in any transaction with any person appearing on the list maintained by the U.S. Treasury Department's Office of Foreign Assets Control list located at 31 C.F.R.,Chapter V,Appendix A or is a person described in Section l of the Anti-Terrorism Order;or(E)any affiliate of any of the Persons described in paragraphs(A)through(D)above Schedule B Page 961 of 2461 "Project"has the meaning set forth in the Development Agreement. "Project Approvals"has the meaning set forth in the Development Agreement. "Project Site"means,collectively,Area 1,Area 2 and the Residential Parcel. "Purchase Price"has the meaning set forth in Section 2.2. "Purchaser"has the meaning set forth in the introductory paragraph. "RDA"means the Miami Beach Redevelopment Agency,a public agency organized and existing pursuant to the Community Redevelopment Act of 1969,as amended,Chapter 163,Part[II,Florida Statutes. "REA" means a certain Reciprocal Easement and Operating Agreement in the form attached hereto as Schedule C and made a part hereof. "Recognition Agreement" means that certain recognition agreement by and among Seller, Marina Lessee and Marina Sublessee in the form attached hereto as Schedule F and made a part hereof. "Referendum"has the meaning ascribed to it in Section 1.1. "Residential Parcel" means the real property described on Schedule A-1, together with all reversions, remainders, privileges, easements, rights-of-way, appurtenances, agreements, rights, licenses, tenements and hereditaments appertaining to or otherwise benefiting or used in connection with said real property,together with all of Seller's right,title and interest in and to any strips and gores of land,streets,alleys,public ways or rights-of-way abutting, adjoining, adjacent, connected or appurtenant to such real property, and together with any and all development rights, air rights, water and water rights,wells,well rights and well permits,water and sewer taps(or - ' their equivalents),and sanitary or storm sewer capacity appertaining to or otherwise benefiting or used in connection with said real property. "Seller"has the meaning set forth in the introductory paragraph. "Seller Delay" means the number of days in which Seller performs any obligation under Sections 2.2(c)(iii)or 7.2 hereof in excess of the number of days set forth for such performance therein. "Seller's Representations"has the meaning set forth in ARTICLE V. "Seller Title Policy"has the meaning set forth in Section 2.2(c)(vi). "Submerged Land Lease" means that certain Submerged Land Lease effective as of January 21, 1986 between the Board of Trustees, as lessor, and the City and the RDA, as lessee, and recorded in Official Records Book 16509, Page 3694 of the Public Records of Miami-Dade County, Florida, as modified by that certain Submerged Land Lease effective as of April 28,2010 between the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida, as lessor, and the City and RDA, collectively, as lessee,recorded on December 13,2010 in Official Records Book 27519,Page 662 of the public records of Miami-Dade County,Florida. "Survey"has the meaning set forth in Section 4.1. "Title Commitment"has the meaning set forth in Section 4.1. "Title Company"means First American Title Insurance Company. "Title Documents"has the meaning set forth in Section 4.1. "Title Policy"has the meaning set forth in Section 4.4. Schedule B Page 962 of 2461 "Title Objection" has the meaning set forth in Section 4.2. "Transfer" means any sale, assignment or conveyance of the Residential Parcel or any direct or indirect ownership interest in Purchaser. "Unavoidable Delay"has the meaning set forth in the Development Agreement Schedule B Page 963 of 2461 SCHEDULE C FORM OF REA (attached hereto) Schedule C Page 964 of 2461 This instrument prepared by,or under the supervision of(and after recording,return to): Gary A.Saul,Esq. Greenberg Traurig,P.A. 333 S.E.2nd Avenue Miami,FL 33131 (Reserved for Clerk of Court) DECLARATION OF COVENANTS, RESTRICTIONS AND EASEMENTS FOR THREE HUNDRED ALTON Page 965 of 2461 Table of Contents 1. DEFINITIONS AND INTERPRETATION 1 1.1 Definitions 1 1.2 Interpretation 15 2. PROPERTY SUBJECT TO THIS DECLARATION;ADDITIONS THERETO 15 2.1 Legal Description 15 2.2 Supplements to The Properties 15 2.3 Declarant's Right to Modify Project Facilities 16 2.4 Declarant's Right to Withdraw Property 17 2.5 Subdivision of Elements 17 2.6 Limitations on Supplements,Modifications and Withdrawal by Declarant 17 2.7 Modification of Project Facilities by Shared Facilities Manager 18 2.8 Designation of Project Facilities 19 2.9 Legal Description of Elements 19 3. GENERAL RIGHTS AND EASEMENTS IN PROJECT FACILITIES 19 3.1 Rights and Easements in Shared Facilities 19 3.2 Rights and Easements in Element Exclusive Facilities 20 3.3 Rights of Shared Facilities Manager 20 3.4 Easements Appurtenant 22 3.5 Project Facilities Rules and Regulations 22 3.6 Use of Roofs 22 3.7 Signs 23 3.8 Limited Shared Facilities 24 4. ADDITIONAL EASEMENT RIGHTS AND EASEMENTS 24 4.1 Encroachment 24 4.2 Easements of Support 24 4.3 Easements for Pedestrian and Vehicular Traffic 24 4.4 Project Encumbrances 25 4.5 Recorded Utility Easements 25 4.6 Public Easements 26 4.7 Easements for Element Exclusive Facilities 26 4.8 Easements for Shared Facilities Manager 26 4.9 Declarant's Construction,Sales and Leasing Activities 27 5. ALTERATIONS AND IMPROVEMENTS 28 5.1 Alterations 28 5.2 Approval Required 28 5.3 Construction Practices 29 5.4 Review of Alterations 32 5.5 Element Exclusive Facilities 33 6. MAINTENANCE OF STRUCTURES,ELEMENTS AND OTHER FACILITIES 33 6.1 Maintenance of Shared Facilities 33 Page 966 of 2461 • (Reserved for Clerk of Court) 6.2 Exteriors of Structures 34 6.3 Maintenance of Elements 34 6.4 Landscaping 35 6.5 Exterior Project Lighting 35 6.6 Water,Sewer and Drainage Facilites 36 6.7 Maintenance of Element Exclusive Facilities 37 6.8 Maintenance Generally 37 6.9 Right of Entry 38 6.10 Common Electric Vehicle Charging Station 39 7. CERTAIN USE RESTRICTIONS 40 7.1 Applicability 40 7.2 Uses of Elements and Structures 40 7.3 Utilities 40 7.4 Nuisances and Noise 41 7.5 Parking and Vehicular Restrictions 44 7.6 Master Life Safety Systems 44 7.7 Signs 45 7.8 Animal Restriction 45 7.9 Trash 45 7.10 Temporary Structures 46 7.11 Post Tension Restrictions 46 7.12 Hurricane Evacuation Procedures 46 7.13 Additional Restrictions 47 7.14 Variances 47 7.15 Declarant Exemption 48 8. SHARED FACILITIES MANAGER AND ELEMENT SPECIFIC MANAGERS 49 8.1 Preamble 49 8.2 Cumulative Effect;Conflict 49 8.3 Compliance with Declaration 50 8.4 Collection of Assessments;Payment Priority 50 8.5 Additional Expense Allocations 51 8.6 Non-Performance of Element Specific Manager Duties 51 8.7 General Provisions Regarding Submitted Elements 53 8.8 Multiple Element Specific Declarations 54 9. COMPLIANCE AND ENFORCEMENT 54 9.1 Compliance by Owners 54 9.2 Enforcement 55 9.3 Fines 55 9.4 Remedies Cumulative 56 Declaration of Covenants -3- Page 967 of 2461 (Reserved for Clerk of Court) 10. MORTGAGEE PROTECTION 56 10.1 Mortgagee Protection 56 11. INSURANCE ON SHARED FACILITIES AND ELEMENTS 57 11.1 Insurance 57 11.2 Purchase,Custody and Payment 57 11.3 Coverage 58 11.4 Additional Provisions 60 11.5 Premiums 61 11.6 Share of Proceeds 61 11.7 Distribution of Proceeds 61 11.8 Shared Facilities Manager as Agent 62 11.9 Owners'Personal Coverage 62 11.10 Benefit of Mortgagees 65 12. RECONSTRUCTION OR REPAIR OF SHARED FACILITIES 65 12.1 Application of Provisions 65 12.2 Determination to Reconstruct or Repair 66 12.3 Plans and Specifications 66 12.4 Assessments 67 12.5 Reconstruction or Repair by Element Owners 67 12.6 Benefit of Mortgagees 67 13. CONDEMNATION 68 13.1 Effect of Taking 68 13.2 Determination Whether to Reconstruct 68 14. PROPERTY TAXES 68 14.1 Separate Assessment 68 14.2 No Separate Assessment 69 14.3 Reference to Taxes in Other Documents 71 14.4 Failure to Pay Taxes 72 14.5 Taxes Against Shared Facilities 72 15. PROVISIONS REGARDING SHARED FACILITIES COSTS 73 15.1 Maintenance Expenses 73 15.2 Ongoing Developer Obligations 73 15.3 Assessment to Shared Facilities Manager;Allocations 74 15.4 Levying Assessments 76 15.5 Effect of Non-Payment of Assessment; the Personal Obligation; the Lien; Remedies of Shared Facilities Manager 77 Declaration of Covenants -4- Page 968 of 2461 (Reserved for Clerk of Court) 15.6 Subordination of the Lien 78 15.7 Curative Right 79 15.8 Priority of Liens 79 15.9 Financial Records 79 15.10 Estoppel Certificates 80 15.11 Shared Facilities Manager Consent;Conflict 80 16. PROVISIONS REGARDING PARKING 80 16.1 General 80 16.2 Requirement for Separate Agreement 81 17, GENERAL PROVISIONS 82 17.1 Duration 82 17.2 Notice 82 17.3 Enforcement 83 17.4 Interpretation 83 17.5 Severability - 83 17.6 Effective Date 83 17.7 Amendment 83 17.8 Assignment Option 84 17.9 Cooperation 84 17.10 Standards for Consent,Approval and Other Actions 85 17.11 Easements 85 17.12 No Public Right or Dedication 85 17.13 Constructive Notice and Acceptance 85 17.14 NO REPRESENTATIONS OR WARRANTIES 86 17.15 Covenants Running With The Land 87 17.16 Development Rights Error!Bookmark not defined. 17.17 Covenant in Lieu of Unity of Title 88 17.18 CPI 88 18. DISCLAIMER OF LIABILITY 88 Declaration of Covenants -5- Page 969 of 2461 DECLARATION OF COVENANTS, RESTRICTIONS AND EASEMENTS FOR THREE HUNDRED ALTON THIS DECLARATION OF COVENANTS RESTRICTIONS AND EASEMENTS is made as of the day of , 20by Marina Park Residential, LLC., a Delaware limited liability company, which declares hereby that "Three Hundred Alton" (also known as "The Properties" described in subsection 1.1(00) of this Declaration) are and shall be held, transferred, sold, conveyed and occupied subject to the covenants, restrictions, easements,charges and liens hereinafter set forth. 1. DEFINITIONS AND INTERPRETATION 1.1 Definitions. The following words when used in this Declaration (unless the context shall prohibit)shall have the following meanings: (a) "Allocated Interests" shall have the meaning given in Section 11.7. (b) "Assessments" shall mean and refer to the various forms of payment to Shared Facilities Manager which are required to be made by Owners, as more particularly described in Article 15 of this Declaration. (c) "Benefitted Element" shall mean and refer to, with respect to each of the Element Exclusive Facilities, the Element that is the sole and exclusive beneficiary of the use and enjoyment thereof. (d) "Burdened Element" shall mean and refer to, with respect to each of the Element Exclusive Facilities, the Element(s) in which such Element Exclusive Facilities are located(and therefore burdened thereby). (e) "City" shall mean and refer to the City of Miami Beach, Florida. Any and all references herein to the City shall refer to the City, solely in its capacity as the governing municipality acting in its official capacity,and shall not be deemed to refer to the City as an Owner of any Element and/or other portion of The Properties to the extent that it may in fact be such an owner. (f) "Commercial Element"shall have the meaning given in subsection 1.1(Q). (g) "Commercial Element Owner" shall mean the Owner from time to time of the Commercial Element. (h) "Commercial Ground Lease" shall mean and refer to that certain Ground Lease Agreement between MB Marina Park, LLC, a Delaware limited liability company, and The City of Miami Beach, Florida, a Florida municipal corporation, adopted pursuant to City Commission Resolution No. 2020- and recorded in Official Records Book , Page of the Public Records of the County, as amended,modified, renewed or restated from time to time. Page 970 of 2461 (Reserved for Clerk of Court) (i) "Commercial Sublease" shall mean and refer to that certain, as amended,modified, renewed or restated from time to time. (j) "Common EVCS"shall have the meaning given to it in Section 6.10 below. (k) "Construction Practices"shall have the meaning given in Section 5.3. (I) "County" shall mean and refer to Miami-Dade County, Florida. (m) "Declarant" shall mean and refer to Marina Park Residential, LLC., a Delaware limited liability company, its successors and such of its assigns as to which the rights of Declarant hereunder are specifically assigned in writing. Each Declarant may assign all or a portion of its rights hereunder, or all or a portion of such rights in connection with specific portions of The Properties, including any Element. In the event of any partial assignment, the assignee shall not be deemed Declarant, but may exercise such rights of Declarant as are specifically assigned to it (with all other Declarant rights and all Declarant obligations remaining with the assignor, unless expressly provided to the contrary). Any such assignment may be made on an exclusive or nonexclusive basis, with the allocation of Declarant's rights and obligations to be as set forth in the instrument of assignment (failing which Declarant and each such assignee shall be jointly and severally obligated for all obligations of Declarant,and shall jointly share all shared rights of Declarant). Notwithstanding any assignment of the Declarant's rights hereunder(whether partially or in full),the assignee shall not be deemed to have assumed any of the obligations of the Declarant unless, and only to the extent that, it expressly agrees to do so in writing. Notwithstanding anything herein contained to the contrary: (i) if Declarant is the trustee of a trust, any and all references to property owned by Declarant, shall, be deemed to refer to property owned either directly by the trustee or by any beneficiary of the trust, (ii) if there is one or more Declarants, any and all references to property owned by Declarant, shall, be deemed to refer to property owned by any Declarant, (iii) any and all releases, waivers and/or indemnifications of Declarant set forth in, or arising from, this Declaration, shall be deemed to be releases, waivers and/or indemnifications, as applicable, of any and all parties holding Declarant rights, and if any Declarant is the trustee of a trust, the beneficial owners of the trust, and any direct or indirect beneficial owners, partners, shareholders, members, managers, of any Declarant or beneficial owners and its or their successors and assigns. Declaration of Covenants -2- Page 971 of 2461 (Reserved for Clerk of Court) (n) "Declarant's Mortgagee" shall mean and refer to any lender and/or mortgagee having a mortgage upon any portion of The Properties at the time of the recordation of this Declaration, for as long as the lender holds a mortgage or mortgages on any Element, Unit or other portion of The Properties owned by Declarant, and thereafter such mortgagee or mortgagees as Declarant shall, from time to time, designate by notice to Shared Facilities Manager as being "Declarant's Mortgagee". For the avoidance of doubt, there may be more than one Declarant's Mortgagee at any time. (o) "Declaration" shall mean this instrument and all exhibits attached hereto, as same may be amended or supplemented from time to time. (p) "Default Rate"shall mean the lesser of(1)eighteen percent(18%) per annum, (ii) the then current rate of interest published from time to time by Citibank (or any successor to it, or if none,such financial institution as Shared Facilities Manager may designate) as its "prime" or "bank" (or comparable) lending rate, plus ten percent(10%) per annum, or(iii)the maximum rate allowed by applicable Legal Requirements. (q) "Development Agreement" shall mean and refer to that certain Development Agreement 2020- for the Development of the Marina Park Project between and the City of Miami Beach, a Florida municipal corporation, recorded in Official Records Book , Page of the Public Records of the County, as amended, modified or restated from time to time. (r) "Development Rights" shall mean all development rights and/or building rights appurtenant to or benefitting The Properties, including without limitation any and all governmental or quasi-governmental authorizations, approvals, orders, entitlements, variances, waivers, allocations, permits, licenses and agreements of any kind or nature relating to the development of The Properties or any portion thereof and/or the construction of any improvements thereon; water, sanitary sewer and storm water rights, capacity and connections (and/or their equivalents); impact fee credits; available FAR; and/or other rights of any kind or nature relating to the development of The Properties or any portion thereof and/or the construction of any improvements thereon. (s) "Electric Vehicle Charging Station"or "EVCS" means a station that is designed in compliance with applicable Federal, State and local building codes and delivers electricity from a source outside an electric vehicle into one or more electric vehicles. An electric vehicle charging station includes any related equipment needed to facilitate charging plug-in electric vehicles. Declaration of Covenants -3- Page 972 of 2461 (Reserved for Clerk of Court) (t) "Element" shall mean and refer to a portion of The Properties which is designated as such in this Declaration or in a Supplemental Declaration executed and recorded by Shared Facilities Manager (and joined into by the Owner of such parcel, if different from Shared Facilities Manager). In the event that any Element is submitted to the condominium or other collective form of ownership, it shall nevertheless be deemed a single Element hereunder, as more particularly described in Section 8.7 of this Declaration. It is contemplated (but without imposing any obligation) that The Properties shall ultimately contain the following Elements (but not all of the following need in fact be added to The Properties and the listing set forth below shall not limit Shared I Facilities Manager's right to create additional Elements, eliminate any of the listed Elements or change any Elements): (i) the"Commercial Element"which is legally described and/or depicted on Exhibit"B" attached hereto; (ii) the "Residential Element" which is legally described and/or depicted on Exhibit"B" attached hereto; (iii) the "Shared Facilities Element" which is legally described and/or depicted on Exhibit "B" attached hereto, and includes without limitation, all of the airspace located outside the exterior of the Structures. The Properties may be supplemented to add additional Elements, to redefine Element boundaries (to comport to as-built Structures or otherwise), to subdivide and/or combine existing Elements and/or to supplement the Shared Facilities Element or any other Element. If so, the legal descriptions or graphic depictions of the affected Elements will be set forth in the Supplemental Declaration submitting or modifying same. Notwithstanding anything herein contained to the contrary, the name of each Element is assigned only for convenience of reference, and is not intended, nor shall it be deemed to limit or otherwise restrict the permitted uses thereof. (u) "Element Exclusive Facilities" shall mean and refer to those areas and/or facilities within one or more Elements of The Properties (referred to herein as the "Burdened Element") that are intended for the benefit and exclusive use (subject to the rights, if any, of any Governmental Authority, Shared Facilities Manager and the public) of the Owner of another Element and/or the Units in such other Element (referred to herein as the ."Benefitted Element") to the exclusion of the Owners of the other Elements. The Element Exclusive Facilities shall be subject to such regulation and restrictions as may be imposed from time Declaration of Covenants -4- Page 973 of 2461 (Reserved for Clerk of Court) to time in accordance with the provisions of this Declaration. The Element Exclusive Facilities shall include, as applicable and without limitation, the following areas and/or facilities, as and to the extent same exist from time to time and as modified,supplemented or replaced from time to time: (I) all utility, mechanical, electrical, telephonic, telecommunications, plumbing and other systems serving one Element exclusively (but not any other Element), including without limitation, all wires, conduits, pipes, ducts,transformers, cables, generators and other apparatus used in the delivery of the utility, mechanical, telephonic, telecommunications,electrical,plumbing and/or other services; (ii) all heating,ventilating and air conditioning systems serving one Element exclusively (but not any other Element), including, without limitation, compressors, air handlers, ducts, chillers, cooling towers and other apparatus used in the delivery of HVAC services; (iii) all lobbies, elevator lobby areas and mail rooms serving one Element exclusively(but not any other Element); (iv) all elevator pits, elevator shafts, elevator cabs, elevator cables, and/or machinery, systems and/or equipment used in the operation of the elevators serving one Element exclusively(but not any other Element); (v) all trash rooms and any and all trash collection and/or disposal systems serving one Element exclusively (but not any other Element), provided that any trash collection areas which terminate in the loading bay areas are subject to the control of and any restrictions imposed by Shared, Facilities Manager; (vi) all mechanical rooms serving one Element exclusively(but not any other Element), including without limitation fire pump rooms, fire command rooms,water pump rooms, electrical rooms,generator rooms, fuel tank rooms, FPL vault rooms and pool equipment rooms; (vii) all grease traps serving one Element exclusively (but not any other Element); (viii) all monument, interior, exterior and/or other signage identifying an Element exclusively (but not any other Element) that is not part of the project-wide directional signage system and/or otherwise included in Shared Facilities; and Declaration of Covenants -5- Page 974 of 2461 1 (Reserved for Clerk of Court) (ix) [placeholder for additional Element Exclusive Facilities]. For the avoidance of doubt,the Element Exclusive Facilities shall not include any areas and/or facilities of The Properties included in the Shared Facilities under this Declaration. However, although`the Shared Facilities generally serve more than one Element, the Shared Facilities may include certain areas and/or facilities that serve one Element exclusively. This may be the case due to a variety of reasons, including, inter alio, the significance of the area and/or facility in question to the integrated nature of The Properties from a safety or aesthetic perspective and/or economic or other efficiencies that may be achieved by including such areas in the Shared Facilities. Accordingly, if and to the extent any areas and/or facilities of The Properties that serve only one Element are included in the Shared Facilities, such areas and/or facilities shall not be part.of (and shall be excluded from) the Element Exclusive Facilities irrespective of whether same serve one Element exclusively. The Element Exclusive Facilities may be graphically depicted on the Project Facilities Plans. (v) "Element Specific Declaration" shall mean the declaration of covenants, conditions,easements and/or restrictions and all other documents necessary or required to submit portions of The Properties to the condominium or cooperative form of ownership or other collective ownership structure, as amended and supplemented from time to time. To the extent that any portion of The Properties is subject to more than one Element Specific Declaration, the Element Specific Declaration encumbering the greatest portion of The Properties shall be deemed the Element Specific Declaration hereunder, except as otherwise expressly provided in such declarations.This Declaration is not and shall not be deemed an Element Specific Declaration. (w) "Element Specific Manager" shall mean any entity created or to be created to administer specific portions of The Properties and common areas or common elements lying within such portions pursuant to an Element Specific Declaration. In instances where the Element Specific Declaration references an association to govern the common elements and/or common areas of the Submitted Element governed by the Element Specific Declaration and does not have any other entity performing similar functions,then the Element Specific Manager shall be the condominium or property owners' association named in the applicable Element Specific Declaration. To the extent that the Element Specific Declaration does not establish an association to govern the common elements and/or common areas of the Submitted Element governed by the Element Specific Declaration,or establishes an association and another entity performing similar functions,then in such instances, the Element Specific Manager shall be deemed to be the entity designated to perform such functions (whether or not Declaration of Covenants -6- Page 975 of 2461 (Reserved for Clerk of Court) in fact an association)and not the named association, if any. In the event of any doubt as to the Element Specific Manager for a particular Element or under a particular Element Specific Declaration, the Shared Facilities Manager shall have the authority to make the determination, and the opinion of the Shared Facilities Manager shall be binding and conclusive. (x) "Facilities Records"shall have the meaning given in Section 15.9. (y) "Governmental Authority"shall mean the United States of America,the State of Florida, the County, the City, any political subdivision thereof and any agency, department, commission, board,bureau,official or instrumentality of any of the foregoing, or any quasi-governmental authority, now existing or hereafter created, and any successor to any of the foregoing, having jurisdiction over The Properties or any portion thereof. (z) "Insured Property"shall have the meaning given in Section 11.3. (aa) "Legal Requirements" shall mean any law (including without limitation any laws relating to hazardous materials or substances), enactment, statute, code, ordinance,administrative order, charter, comprehensive plan, tariff, resolution, rule, regulation (including land development regulations), guideline, judgment, decree, writ, injunction, franchise, permit, certificate, license, authorization, or other direction, approval or requirement of any Governmental Authority, now existing or hereafter enacted, adopted, promulgated,entered,or issued. (bb) "Limited Shared Facility" or "Limited Shared Facilities" shall mean and refer to such portions of the Shared Facilities which are intended for the exclusive use (subject to the rights, if any, of the County, the City, any other applicable governmental or quasi-governmental authority, the Shared Facilities Manager and the public)of the Owners of specific Units and/or Elements,to the exclusion of others. Unless otherwise provided specifically to the contrary, reference to the Shared Facilities shall include the Limited Shared Facilities. (cc) "Long-Term Lease" shall mean any lease, sublease and/or other occupancy agreement of an entire Element having an initial term of in excess of forty five (45) years. The Commercial Ground Lease and the Commercial Sublease are recognized and agreed to each be a Long-Term Lease. (dd) "Losses" shall mean all damages, construction, mechanics or other liens, liabilities, losses, demands, actions, causes of action,claims, costs and expenses (including reasonable attorneys' fees, including all fees and costs in arbitration, at trial and on appeal or as a result of a bankruptcy). Declaration of Covenants -7- Page 976 of 2461 (Reserved for Clerk of Court) (ee) "Master Life Safety Systems" mean and refer to any and all of the following: emergency lighting, emergency generators, fire pump equipment and rooms, monitoring stations, audio and visual signals, safety systems, sprinklers and smoke detection systems,if any,and any housing areas of same, which are now or hereafter installed in any improvements constructed upon The Properties, and which serve more than one Element or an Element and/or the Shared Facilities, or any portion of same. All such Master Life Safety Systems,together with all conduits, wiring, electrical connections and systems related thereto, regardless of where located, shall be deemed part of the Shared Facilities. Without limiting the generality of the foregoing, when the context shall so allow,the Master Life Safety Systems shall also be deemed to include all means of emergency ingress and egress,which shall include all Shared Stairways. (ff) "Mechanical Rooms" shall mean and refer to, collectively, the machinery and equipment rooms now or hereafter located within The Properties, including but not limited to the components and facilities and equipment described in subsection 1.1(u). This definition of Mechanical Rooms includes all equipment, components, machinery, mechanical systems and related items located therein. (gg) "Mortgage"shall have the meaning given to it in subsection 10.1(a). (hh) "Owner" shall, subject to the provisions of Sections 8.7, 8.8 and 8.9, mean and refer to the record owner, whether one or more persons or entities, of the fee simple title to any Element situated upon or within The Properties. For the purposes of this Declaration, with respect to any Element/Structure governed by an Element Specific Declaration, an "Owner" shall also mean the Element Specific Manager for such Element/Structure as more particularly described in Section 8.7 and 8.8 of this Declaration.As to any benefits and/or rights afforded Owners under this Declaration, whether as to use of Shared Facilities, easements granted hereunder or otherwise, or in any other instance where the context so requires,Owner shall also be deemed to mean and refer to each Unit Owner. Further, in any instances in the Declaration where the Owner makes, waives, releases and/or agrees to indemnify any other party, said waivers, releases, agreements and indemnification shall be deemed to be made by both the Owner and all applicable Unit Owners. (ii) "Parking Area" shall mean those portions of the Shared Facilities consisting of parking spaces, parking driveways, ramps and other infrastructure serving or facilitating parking within the parking spaces. (jj) "Permitted User" shall mean any person who occupies an Element or a Unit or any part thereof with the permission of the Element Owner or Unit Owner, Declaration of Covenants -8- Page 977 of 2461 (Reserved for Clerk of Court) including, without limitation, Tenants (as hereinafter defined), easement beneficiaries, members of such Element Owner's, Unit Owner's or Tenant's family and his, her or its guests, licensees, employees, customers, business invitees and personal invitees. The rights of Permitted Users are limited in scope by the terms and conditions of this Declaration, depending on the applicable Element,Shared Facilities and Element Exclusive Facilities involved. (kk) "Project Encumbrances" shall mean and refer to any covenants, conditions, restrictions, easements, agreements, instruments and other encumbrances that now or hereafter encumber The Properties(or more than one Element thereof), the ongoing requirements of any entitlements or development approvals for Three Hundred Alton and any other instruments entered into in connection with obtaining such entitlements and development approvals, including, without limitation,the following: (II) "Project Facilities" means, collectively, the Element Exclusive Facilities and the Shared Facilities. (mm) "Project Facilities Plans" shall mean, collectively, the full size plans entitled [Three Hundred Alton — Facilities Plans], prepared by [ 1, that graphically depict the Element Exclusive Facilities and Shared Facilities, which plans are maintained at the office of Shared Facilities Manager located at (or another location designated by Shared Facilities Manager), as same may be revised, modified, supplemented and replaced from time to time. (nn) "Project Standard" shall mean the standard required to maintain and operate The Properties (and all Elements therein) in a condition and a quality level no less than that which existed at the time that the initial design and construction of the Structures on the Elements was completed (ordinary wear and tear excepted) and the initial landscaping and signage was installed. (oo) "The Properties" or "Three Hundred Alton" shall mean and refer to all properties described in Exhibit"A" attached hereto and made a part hereof, and all additions thereto, now or hereafter made subject to this Declaration, except such as are withdrawn from the provisions hereof in accordance with the procedures set forth in this Declaration. (pp) "Residential Element"shall have the meaning given in subsection 1.1(q). Declaration of Covenants -9- Page 978 of 2461 (Reserved for Clerk of Court) (qq) "Residential Element Owner" shall mean the Owner from time to time of the Residential Element. (rr) "Shared Facilities" shall mean and refer to the portions of The Properties (or adjacent to or in the vicinity thereof), whether by purpose, nature, intent or function, that afford benefits or impose burdens shared by more than one Element or Owner, as same may be modified, supplemented or replaced from time to time. Given the integration and design of the improvements comprising the Elements and any additional Element as a unified project, and notwithstanding the legal descriptions or graphic depictions contained in any exhibits, or the legal descriptions or graphic depictions of any Elements added hereto or redrawn by Supplemental Declaration, there is a necessity to share and/or unify responsibility for certain components of The Properties. Those shared components shall be identified as the "Shared Facilities", which include, without limitation,the Shared Facilities Element and the following areas and/or facilities (together with a license for reasonable pedestrian access thereto) intended for use by and/or enjoyment of the Element Owners (and their Tenants and other Permitted Users), as modified, supplemented or replaced from time to time: (i) all sidewalks, pedestrian paths and bike paths, and any courtyards serving more than one Element,together with all improvements related thereto; (ii) any gateway or other entry feature or landmark at any entrance to The Properties (as distinguished from any entry feature for any particular Element or Elements, but not all Elements) or included in the Shared Facilities Element; (iii) any landscaping and streetscaping around and/or serving any exterior portion of The Properties, including without limitation exterior landscaping and streetscaping on any Element, plantings, flowers, planters, fountains, public water sources, artwork and sculptures, irrigation systems, rain gardens and similar water conservation installations, benches and public seating, but expressly excluding any plants, shrubbery or other landscaping materials on balconies, terraces or patios included within an Element; (iv) any improvements to the rights-of-way adjacent to or within the vicinity of The Properties, including without limitation pavers, traffic, bike and pedestrian control devices and signage, pavement markings and signage, noise reduction installations, driveways and drive aisles, Declaration of Covenants -10- Page 979 of 2461 (Reserved for Clerk of Court) lighting and landscaping in excess of the standard improvements customarily installed by the applicable governmental authority(e.g.,the City, County or Florida Department of Transportation) with jurisdiction over such rights-of-way; (v) all exterior project lighting and all street or exterior lighting fixtures, installations equipment serving or part of the Shared Facilities and/or which are part of an exterior lighting scheme applicable to more than one Element; (vi) any project-wide directional signage system and all project identification signage, including without limitation monument signs, exterior façade and entranceway "eyebrow" signage and interior signage; (vii) all Shared Stairways and above ground walkways connecting more than \one Element; (viii) all drives, paths and other areas serving all Elements or included in the Shared Facilities Element; (ix) all structural components of the improvements and air space outside the exterior of the Structures, including, without limitation, all foundations, pilings, slabs and structural columns, post tension cables and/or rods contained in any improvements, exterior walls, exterior glass surfaces, cantilever structures, and all finishes and balconies, terraces and/or facades attached or affixed to any Structures. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, NO POST TENSION CABLES AND/OR RODS CONTAINED IN ANY IMPROVEMENTS CONSTRUCTED UPON THE PROPERTIES SHALL BE CONSIDERED A PART OF AN ELEMENT (OTHER THAN THE SHARED FACILITIES ELEMENT). AS SUCH CABLES AND/OR RODS ARE ESSENTIAL TO THE STRUCTURE AND SUPPORT OF THE IMPROVEMENTS,ALL POST TENSION CABLES AND/OR RODS SHALL BE DEEMED PART OF THE SHARED FACILITIES OF THE SHARED FACILITIES ELEMENT AND MAY NOT BE DISTURBED OR ALTERED WITHOUT THE PRIOR WRITTEN CONSENT OF THE SHARED FACILITIES ELEMENT OWNER;; (x) the roofs and all roof trusses, roof support elements and roofing insulation; (xi) the Master Life Safety Systems; Declaration of Covenants -11- Page 980 of 2461 (Reserved for Clerk of Court) (xii) all drainage, utility, mechanical, electrical, telephonic, telecommunications, plumbing and other systems serving the Shared Facilities Element or more than one Element, including, without limitation, all water and sanitary sewer system facilities, and all wires, conduits, pipes, ducts,transformers,cables and other apparatus used in any drainage system and the delivery of the utility, mechanical, telephonic, telecommunications, electrical, plumbing and/or other services, and all Mechanical Rooms in which any of the foregoing are located; (xiii) all heating, ventilating and air conditioning systems serving the Shared Facilities Element or more than one Element, including, without limitation, compressors, air handlers, ducts, chillers, water towers and other apparatus used in the delivery of HVAC services; (xiv) all bicycle storage areas and mail rooms serving more than one Element; (xv) all elevator lobbies, elevator shafts, elevator cabs, elevator cables and/or systems and/or equipment used in the operation of the elevators serving more than one Element; (xvi) all trash rooms and any and all trash collection and/or disposal systems serving the Shared Facilities Element or more than one Element; (xvii) all Mechanical Rooms included in or serving the Shared Facilities Element or more than one Element, including without limitation Fire Pump Rooms, Fire Command Rooms, Water Pump Rooms, Electrical Rooms, Generator Rooms, Fuel Tank Rooms,and FPL Vault Rooms; (xviii) any management, security, concierge or other similar areas and offices, wherever located, used by personnel providing services to more than one Element; (xix) all loading bays,docks and other areas;and (xx) [placeholder for additional Shared Facilities] All Shared Facilities shall be subject to such regulation and restrictions as may be imposed from time to time by Shared Facilities Manager in accordance with the provisions of this Declaration. For the avoidance of doubt, the Shared Facilities (1) include all areas and/or facilities comprising the Shared Facilities Element, except for any areas or facilities, which, although located in or comprising a part of the Shared Facilities Element, are specifically identified as Declaration of Covenants -12- Page 981 of 2461 (Reserved for Clerk of Court) Element Exclusive Facilities on the Project Facilities Plans and/or pursuant to subsection 1.1(o);and (2) include all of the airspace located outside the exterior of the Structures (irrespective of whether such airspace is part of an Element). The Shared Facilities may be graphically depicted on the Project Facilities Plans. (ss) "Shared Facilities Costs"shall have the meaning given in Section 15.3. (tt) "Shared Facilities Element" shall have the meaning given in subsection 1.1(s), and shall include the land underlying the Shared Facilities Element. (uu) "Shared Facilities Element Owner" shall mean the owner from time to time of the Shared Facilities Element. (vv) "Shared Facilities Manager" means the Shared Facilities Element Owner or the person or entity designated by the Shared Facilities Element Owner from time . to time to manage the operation of the Shared Facilities and to perform the administrative responsibilities of Shared Facilities Manager under this Declaration. For so long as the "Commercial Sublease" remains in effect, the subtenant thereunder is hereby designated as the initial Shared Facilities Manager under this Declaration. Notwithstanding anything herein contained to the contrary, any and all releases, waivers and/or indemnifications of Shared Facilities Manager set forth in, or arising from,this Declaration,shall be deemed to be releases, waivers and/or indemnifications, as applicable, of Shared Facilities Manager and Shared Facilities Element Owner, and its or their successors and assigns. (ww) "Shared Stairways" mean any flight of steps, fire corridors, elevators and/or escalators which are at some point located in, or directly accessible from, more than one Element and/or required under Legal Requirements for life safety purposes. (xx) "Structure" shall mean and refer to the structure or structures constructed on an Element and all appurtenant improvements. A"Structure"shall be deemed a single Structure hereunder even though divided into separate condominium, cooperative or other collective ownership parcels. (yy) "Submitted Element" shall mean any portion of The Properties now or hereafter submitted to the condominium or cooperative form of ownership or other collective ownership structure pursuant to an Element Specific Declaration. (zz) "Successor Corporation"shall have the meaning given in Section 17.8. Declaration of Covenants -13- Page 982 of 2461 (Reserved for Clerk of Court) (aaa) "Supplemental Declaration" shall mean and refer to an instrument executed by Shared Facilities Manager as well as any applicable Owner(but only if and to the extent execution by any such applicable Owner is required under this Declaration) and recorded in the Public Records of the County, for the purpose of adding to The Properties, withdrawing any portion(s)thereof from the effect of this Declaration, subdividing any Element, creating an Element, reallocating among Elements, establishing additional types of Project Facilities, designating (or removing the designation of) a portion of The Properties as Project Facilities hereunder, or designating or redesignating any portion of the Project Facilities as a particular type of Project Facilities or a shared component or common area/element of a Submitted Element or for such other purposes as are provided in this Declaration. (bbb) "Tax Value Percentage Share" shall have the meaning given in subsection 14.2(b). (ccc) "Taxed Elements"shall have the meaning given in Section 14.2. (ddd) "Tax" or "Taxes" shall mean all taxes and other governmental charges of any kind whatsoever that may at any time be lawfully assessed or levied against The Properties, an Element(excluding Units within any Element),or any part thereof or any interest therein, including,without limitation, all general and special real estate taxes and assessments or taxes assessed specifically in whole or in part in substitution of such real estate taxes or assessments,by virtue of being situated within a business improvement district,or any taxes levied or a charge upon the rents, revenues or receipts therefrom which may be secured by a lien on the interest of an Owner therein, and all ad valorem taxes and non-ad valorem assessments lawfully assessed upon The Properties or any Element (excluding Units within any Submitted Element). (eee) "Tenant" shall mean any person who is legally entitled to the use and enjoyment of all or any portion of a Unit or Element under a lease, rental or tenancy agreement, exchange arrangement, concession agreement, or similar entitlement with or from a Unit Owner or Element Owner. Tenant is included in the definition of Permitted User. (fff) "Unit" or "Units" shall mean, with respect to any Submitted Element, the condominium, cooperative or other units, lots or parcels located within such Submitted Element. (ggg) "Unit Owner"shall mean the owner of a Unit. Declaration of Covenants -14- Page 983 of 2461 (Reserved for Clerk of Co ) 1.2 Interpretation. The provisions of this Declaration shall be interpreted by Shared Facilities Manager. Any such interpretation of Shared Facilities Manager which is renderedin good faith shall be final, binding and conclusive. Notwithstanding any Legal Requirement to the contrary, the provisions of this Declaration shall be liberally construed so as to effectuate the purposes herein expressed with respect to the efficient operation of The Properties,the preservation of the values of the Elements and Structures and the protection of Declarant's and Shared Facilities Manager's rights, ,benefits and privileges herein contemplated.As provided elsewhere in this Declaration, Shared Facilities Manager duties and obligations under this Declaration shall be subject in all events to receipt of funds necessary to perform same (through Assessments or as otherwise provided herein) and Shared Facilities Manager shall have no personal obligation to fund any sums needed to perform such duties and obligations. 2. PROPERTY SUBJECT TO THIS DECLARATION;ADDITIONS THERETO 2.1 Legal Description. The initial real property which is and shall be held, transferred, sold, conveyed and occupied subject to this Declaration is located in the County, and is more particularly described in Exhibit "A" attached hereto and made a part hereof, all of which real property (and all improvements thereto), together with additions thereto, but less any withdrawals therefrom, is herein referred to collectively as "The Properties". 2.2 Supplements to The Properties. Shared Facilities Manager (joined by the owner, if different than Shared Facilities Manager), may from time to time subject other land under the provisions of this Declaration by Supplemental Declarations, which shall not require the consent of the existing Owners or any mortgagee other than that, if any, of the land intended to be added to The Properties, and thereby add to The Properties and/or to any particular Element(provided the joinder of the applicable Element Owner is obtained).To the extent that such additional real property shall be made a part of The Properties, reference herein to The Properties shall be deemed to be a reference to all of such additional property where such reference is intended to include property other than that legally described in Exhibit "A". Nothing herein, however, shall obligate Shared Facilities Manager to add any real property to the initial portion of The Properties, to develop any such future additional real property under a common scheme, nor to prohibit Declarant from rezoning, replatting, recording a covenant in lieu of unity of title and/or changing plans with respect to such future additional real property. A Supplemental Declaration may vary the terms of this Declaration by addition, deletion or modification so as to reflect any unique characteristics of a particular portion of The Properties identified therein; provided, however,that no such variance shall be directly contrary to the uniform scheme of development of The Properties. Declaration of Covenants -15- Page 984 of 2461 (Reserved for Clerk of Cour 2.3 Shared Facilities Manager's Right to Modify Project Facilities. Subject to Section 2.6, Shared Facilities Manager shall have the right (but not the obligation), by Supplemental Declaration executed by Shared Facilities Manager (and joined in by Declarant's Mortgagee) to eliminate or supplement the Project Facilities by removing or adding additional facilities or to designate any additional portions of Three Hundred Alton as Shared Facilities or Element Exclusive Facilities hereunder(or redesignate any portion of same among any types of Project Facilities, whether from among the existing types, or any future type of Project Facilities which Declarant (together with Shared Facilities Manager) may elect to establish). Notwithstanding the designation of the Project Facilities, Shared Facilities Manager shall have the right, from time to time, to expand, alter, relocate and/or eliminate the Project Facilities, or any portion thereof, without requiring the consent or approval of any Owner, any Element Specific Manager or any member/Owner of a Submitted Element (including, without limitation, any and all owners or mortgagees of the Units, if any, established within any Element). In furtherance of the foregoing, but subject to Section 2.6, Shared Facilities Manager also reserves the absolute right at any time, and from time to time, to construct additional facilities upon or adjacent to the Project Facilities and to determine whether same shall be deemed Shared Facilities or Element Exclusive Facilities and/or the type of Shared Facilities (i.e. serving all Elements or specific Elements) or Element Exclusive Facilities (i.e., serving a particular Element exclusively). Without limiting the generality of the foregoing or the provisions of Section 2.8, but subject to the limitations of Section 2.6 below, Shared Facilities Manager may, from time to time, designate portions of the Shared Facilities as Limited Shared Facilities for the use of some, but not all Element Owners. Any such designation shall be made by Supplemental Declaration executed only by Shared Facilities Manager,without requiring the consent or joinder of any other Owners or mortgagees. The Supplemental Declaration shall designate the portion of the Shared Facilities to be designated as Limited Shared Facilities, the Elements entitled to use of the designated Limited Shared Facilities, the allocation of the costs associated with the maintenance, operation, insurance, repair and replacement of the designated Limited Shared Facilities (which may keep said costs as general Common Expenses to be borne by all Owners, or limiting responsibility for said costs between or among only the Element Owners entitled to use thereof, and if the latter the percentages to be allocated to the applicable Elements). Additionally, as to any Limited Shared Facilities,the Shared Facilities Manager may,from time to time, designate same as general Shared Facilities (for the benefit of all Element Owners) by Supplemental Declaration executed by Shared Facilities Manager and the Owners of the Elements that are relinquishing exclusive use of said Limited Shared Facilities by the designation of same as general Shared Facilities. No mortgagees or other Owners shall be required to join in a Supplemental Declaration designating Limited Shared Facilities as part of the general Shared Facilities. Declaration of Covenants -16- Page 985 of 2461 (Reserved for Clerk of Court) 2.4 Shared Facilities Manager's Right to Withdraw Property. Subject to Section 2.6, Shared Facilities Manager reserves the right to amend this Declaration unilaterally at any time, without prior notice and without the consent of any person or entity (other than Declarant, Declarant's Mortgagee and the Owner(s) of the property being removed if other than Declarant), for the purpose of removing certain portions of The Properties (including, without limitation, Elements, Element Exclusive Facilities and/or Shared Facilities, or portions of any of the foregoing) then owned by Declarant or its affiliates from the provisions of this Declaration to the'extent included originally in error or as a result of any changes whatsoever in the plans for The Properties desired to be effected by Declarant; provided, however,that such withdrawal is not unequivocally contrary to the overall,uniform scheme of development for The Properties. 2.5 Subdivision of Elements. Subject to the provisions hereof, an Element may be subdivided by Supplemental Declaration executed by the Shared Facilities Manager and the Owner and any mortgagee of the subdivided Element, without the consent of any other existing Owners or mortgagees. To the extent that any Element shall be subdivided, reference herein to the Elements shall be deemed to include all of the Elements, including the newly subdivided Elements, unless otherwise indicated in the Supplemental Declaration. All Owners, by acceptance of a deed or other conveyance of their Elements, shall be deemed to have automatically consented to any such subdivision of other Elements,and shall evidence such consent in writing if requested to do so by Shared Facilities Manager or the Owner of the subdivided Element at any time (provided, however, that the refusal to give such written consent shall not obviate the general and automatic effect of this provision). Any Supplemental Declaration effectuating a subdivision of an Element as contemplated herein shall describe with particularity the extent to which each portion of the subdivided Element shall have use rights in and to the Project Facilities (and/or be liable for any costs relating to the Project Facilities). For the avoidance of doubt, the foregoing provision is not intended to apply to the subdivision of an Element through an Element Specific Declaration, which shall be governed by the other provisions of this Declaration applicable to collective ownership structures. 2.6 Limitations on Supplements, Modifications and Withdrawal by Shared Facilities Manager. Notwithstanding the provisions of Sections 2.3, 2.4, and 2.5, Shared Facilities Manager shall not remove, alter, relocate, re-designate or subdivide any portion of The Properties or the Project Facilities to the extent that same will result in the denial to any Owner or any Unit Owner of legal pedestrian and/or vehicular access (direct or by easement) to and from the Owner's Element or shall result in the termination of any utility and/or mechanical, electrical, HVAC, plumbing, life safety, monitoring, information and/or other systems located in and/or comprising the Project Facilities and serving said Owner's Element, or shall compromise the structural integrity of the Structure or otherwise impair the easements of support granted herein (without Declaration of Covenants -17- Page 986 of 2461 ) (Reserved for Clerk of Court) otherwise providing reasonably equivalent substitutions for same). Furthermore, no such removal, alteration, relocation or re-designation shall (a) encumber or materially affect any portion of The Properties not previously encumbered or affected by such Project Facilities without the consent or joinder of the Owner(s) of such portion and its or their mortgagee(s), or (b) eliminate or materially and adversely affect Element Exclusive Facilities without the consent or joinder of the Owner of the applicable Benefitted Element and its mortgagee(s).The foregoing shall not, however,preclude the temporary cessation of services by the Shared Facilities Manager as reasonably necessary to effect repairs to any Shared Facilities. 2.7 Modification of Project Facilities by Shared Facilities Manager. Shared Facilities Manager shall have the right (but not the obligation), by Supplemental Declaration executed by Shared Facilities Manager and Declarant's Mortgagee to supplement the Project Facilities by adding additional facilities or to designate additional portions of Three Hundred Alton as Project Facilities hereunder(or redesignate any portion of same among any types of Project Facilities, whether from among the existing types, or any future type of Project Facilities). Notwithstanding the designation of the Shared Facilities or Element Exclusive Facilities, Shared Facilities Manager shall have the right, from time to time, to expand, alter, relocate and/or eliminate the Project Facilities, or any portion thereof, without requiring the consent or approval of any Owner, any Element Specific Manager or any member/Owner of a Submitted Element (including, without limitation, any and all owners or mortgagees of any Units established within any Element). Shared Facilities Manager shall have the further right to designate portions of the Shared Facilities (including without limitation elevators, trash facilities and loading bay areas) as exclusive to particular Element(s), and/or to designate special use and/or priority rights with respect to any portion of the Shared Facilities to particular Elements, and/or to establish rules and regulations with respect to any portion of the Shared Facilities, including without limitation rules prohibiting Owners or Unit Owners from accessing particular Shared Facilities with pets, limiting the hours of operation and allocating exclusive or non-exclusive use rights to the Elements during particular periods of time and with respect to particular Shared Facilities (including without limitation elevators, trash facilities and loading bay areas). No such alteration, relocation, elimination or re-designation by Shared Facilities Manager hereunder shall deny any Owner legal pedestrian access (direct or via easement) to and from the Owner's Element, nor terminate any utility and/or mechanical, electrical, HVAC, plumbing, life safety, monitoring, information and/or other systems located in and/or comprising the Project Facilities and serving said Owner's Element, nor compromise the structural integrity of the Structure or otherwise impair the easements of support granted herein (without otherwise providing equivalent substitutions for same). Furthermore, no such removal, alteration, relocation or re-designation by Shared Facilities Manager shall (a) encumber or materially affect any portion of The Properties not previously encumbered or affected by such Project Facilities without the consent or joinder of the Owner(s) of Declaration of Covenants -18- Page 987 of 2461 (Reserved for Clerk of Court) such portion and its or their mortgagee(s), or (b) eliminate or materially and adversely affect Element Exclusive Facilities without the consent or joinder of the Owner of the applicable Benefitted Element and its mortgagee(s). The foregoing shall not, however, preclude the temporary cessation'of services as reasonably necessary to effect repairs to any such systems. 2.8 Designation of Project Facilities. Without limiting the generality of Section 1.2, in the event that Shared Facilities Manager determines, in its reasonable judgment, that a particular portion of The Properties is or is not part of the Shared Facilities or a specific type thereof (i.e. serving all or specific Elements), or Element Exclusive Facilities or a specific type thereof(i.e., serving a particular Element exclusively), such determination shall be binding and conclusive. Furthermore, in the event of any doubt, conflict or dispute as to whether any portion of The Properties is or is not part of the Shared Facilities or Element Exclusive Facilities under this Declaration, Shared Facilities Manager may, without the consent of any Element Specific Manager or then existing Owners or mortgagees, record in the public records of the County, a Supplemental Declaration resolving such issue and such Supplemental Declaration executed by Shared Facilities Manager shall be dispositive and binding. 2.9 Legal Description of Elements. The legal descriptions and graphic depictions of the Elements in this Declaration may be adjusted and/or modified, from time to time, whether to conform to any changes reflected after securing City Design Review Board approval, to comport to as-built Structures and to otherwise correct manifest errors. The legal descriptions and graphic depictions of the affected Elements shall be modified by Supplemental Declaration executed by Declarant, Shared Facilities Manager, the Owner of the affected Elements and its or their mortgagees(without the consent of any other Owners or mortgagees).All Owners, by acceptance of a deed or other conveyance of their Elements, shall be deemed to have automatically consented to any such modification of the legal descriptions and graphic depictions for the purposes provided herein, and shall evidence such consent in writing if requested to do so by Declarant, Shared Facilities Manager or the Owner of the affected Elements at any time. Moreover, each Owner shall be and is hereby deemed to have appointed Shared Facilities Manager as its true and lawful attorney-in-fact to execute any instruments or documents on its behalf that may be necessary or desirable to effect any of the foregoing actions, which power of attorney shall be irrevocable and is deemed to be coupled with an interest. 3. GENERAL RIGHTS AND EASEMENTS IN PROJECT FACILITIES 3.1 Rights and Easements in Shared Facilities. Subject to, and in accordance with, all of the other provisions of this Declaration, and except for Limited Shared Facilities as herein specified, each Owner of a portion of The Properties (including, if applicable, any Unit Owner and its and their Permitted Users), shall have limited rights to use, benefit from Declaration of Covenants -19- Page 988 of 2461 (Reserved for Clerk of Court) and enjoy the Shared Facilities (as same may exist from time to time) for their intended purposes (as reasonably determined by Shared Facilities Manager) in common with all other Owners of a portion of The Properties (and their Permitted Users), but in such manner as may be reasonably regulated by Shared Facilities Manager and in accordance with Legal Requirements. As to any Limited Shared Facilities,each Owner of an Element entitled to use of the Limited Shared Facility (and its and their Permitted Users) shall have limited rights to use, benefit from and enjoy the applicable Limited Shared Facilities (as same may exist from time to time) for their intended purposes (as reasonably determined by Shared Facilities Manager) in common with all other Owners designated to be entitled to use of the applicable Limited Shared Facility (and their Permitted Users), but in such manner as may be reasonably regulated by Shared Facilities Manager and in accordance with Legal Requirements. A non-exclusive easement is hereby reserved (and declared and created) over, under and upon such portions of the Shared Facilities as may be designated, in writing, from time to time by Shared Facilities Manager for the use, benefit and enjoyment of any Shared Facilities that may be constructed thereon from time to time in favor of all Element Owners, including Unit Owners,and their Tenants and Permitted Users. 3.2 Rights and Easements in Element Exclusive Facilities. Subject to all of the other provisions of the Declaration, the Owner of each Benefitted Element (including, if applicable, any Unit Owner and its and their Permitted Users), shall have limited rights to use, benefit from and enjoy the Element Exclusive Facilities (as same may exist from time to time) designated for the benefit and exclusive use of such Benefitted Element, for their intended purposes (as determined by Shared Facilities Manager) in common with the Permitted Users of such Owner, but in such manner as may be reasonably regulated by Shared Facilities Manager and in accordance with Legal Requirements. The Owners of the Benefitted Elements shall have easements with respect to the Element Exclusive Facilities serving such Benefitted Elements as more particularly described in Section 4.7. 3.3 Rights of Shared Facilities Manager. The rights of use and enjoyment and other easement rights with respect to the Shared Facilities and Element Exclusive Facilities granted herein are hereby made subject to the following: (a) The right and duty of Shared Facilities Manager to levy Assessments against each Element for the purpose of maintaining, operating, repairing, insuring, replacing and/or altering the Shared Facilities and any facilities located thereon, as more particularly provided in this Declaration, including without limitation Article 15. (b) The right of Shared Facilities Manager to adopt at any time and from time to time and enforce rules and regulations governing the easements granted herein Declaration of Covenants -i0- Page 989 of 2461 (Reserved for Clerk of Court) and/or the use of the Shared Facilities and/or the Element Exclusive Facilities and all facilities at any time situated thereon, as more particularly provided in Section 3.5. Any rule and/or regulation so adopted by Shared Facilities Manager shall apply until rescinded or modified as if originally set forth at length in this Declaration. (c) The right of Shared Facilities Manager to permit such persons as Shared Facilities Manager shall designate to use the Shared Facilities, which may include persons who are not Owners, Tenants or Permitted Users (and may include members of the public generally), except as otherwise expressly provided herein. Additionally,Shared Facilities Manager reserves the right from time to time to (i) limit the right to use certain Shared Facilities and/or Element Exclusive Facilities (such as, by way of example and not limitation, Mechanical Rooms, elevators, trash facilities and loading bay areas) to Owners only, or to Owners and Unit Owners only, and not their Tenants or other Permitted Users, (ii) to designate portions of the_,Shared Facilities as exclusive to particular ' Elements,and/or(iii) to designate special use and/or priority rights with respect to any portion of the Shared Facilities to particular Elements. (d) The right of Shared Facilities Manager to engage third parties (such as property management companies, consultants and other vendors) to perform and carry out its obligations under this Declaration (or in furtherance thereof) and/or any ongoing obligations under the Project Encumbrances,the cost of which shall be included in Shared Facilities Costs. (e) The right of Shared Facilities Manager to have and use, and to require the Element Owners to grant to Shared Facilities Manager, general ("blanket") and specific easements over, under and through the Shared Facilities and/or the Element Exclusive Facilities as necessary or desirable to exercise its rights or perform its obligations under this Declaration. (f) The right to supplement and/or withdraw portions of the Project Facilities as provided in Article 2. (g) The right to exclude individuals from use of the Project Facilities based upon misconduct of such individuals such as criminal activity, vandalism, loitering, soliciting, violating rules and regulations, loud or violent behavior, or lewd or lascivious conduct. WITH RESPECT TO THE USE OF THE SHARED FACILITIES AND THE PROPERTIES GENERALLY,ALL PERSONS ARE REFERRED TO ARTICLE 18 HEREOF, WHICH SHALL AT ALL TIMES APPLY THERETO. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, Declaration of Covenants -21- Page 990 of 2461 (Reserved for Clerk of Court) SHARED FACILITIES MANAGER SHALL HAVE THE RIGHT TO DELEGATE ANY OF ITS RIGHTS AND OBLIGATIONS HEREUNDER TO ANY PARTY EMPLOYED OR ENGAGED BY SHARED FACILITIES MANAGER. 3.4 Easements Appurtenant. The rights and easements provided in this Article 3 shall be appurtenant to and shall pass with the title to each Element benefitted thereby, but shall not be deemed to grant or convey any ownership interest in the Shared Facilities or the Element Exclusive Facilities subject thereto. Notwithstanding the foregoing, any systems, equipment and other facilities located within or comprising the Element Exclusive Facilities, to the extent installed by the Owner of the Benefitted Element served thereby, shall be deemed to be the property of such Benefitted Element Owner as provided in Section 6.7. 3.5 Proiect Facilities Rules and Regulations. Without limiting the generality of Section 3.3, Shared Facilities Manager shall have the right to establish,from time to time, rules and regulations regarding the easements granted herein and/or the use of the Shared Facilities and Element Exclusive Facilities, including, without limitation, rules and regulations (a) allocating exclusive or non-exclusive use rights to the Elements during particular periods of time and/or with respect to particular Shared Facilities, and (b) granting the right to temporarily close or restrict use of Project Facilities, as Shared Facilities Manager may reasonably determine, whether for maintenance purposes, due to an emergency situation or event of force majeure, for security reasons or for any other purpose expressly permitted under this Declaration or otherwise; provided, however, that in no event shall any Owner (including, without limitation, Unit Owners and/or their Tenants and/or other Permitted Users) be denied legal access to and from a publicly dedicated street and the applicable Element/Unit. 3.6 Use of Roofs. Declarant hereby reserves and grants to Shared Facilities Manager the exclusive right to regulate and approve the use of the roof surfaces and/or the placement or installation of any structures,facilities or improvements on the roof of any Structure within The Properties, including without limitation (a) signs or antennas, dishes or any other receiving, transmitting, monitoring and/or other equipment or facilities of any kind or nature, (b) solar equipment, (c) areas for public or private access, such as rooftop decks or patios, and (d) utilities and enclosures for rooftop utilities,such as HVAC and other mechanical equipment, all as Shared Facilities Manager may deem necessary, desirable or acceptable from time to time, without requiring approval from any Owner, but subject to compliance with all Legal Requirements, the Project Standard and such rules and regulations as may be established from time to time by Shared Facilities Manager. Expenses incurred by Shared Facilities Manager in connection with the use of the roof shall be borne by the Element Owner benefitted by such use, provided that if such use benefits more than one Element,then such expenses shall be included in Shared Facilities Costs or allocated to the Elements so served as Declaration of Covenants -22- Page 991 of 2461 (Reserved for Clerk of Court) reasonably determined by Shared Facilities Manager.Any consideration paid or received for such rooftop installations -for the benefit one or more Elements shall be paid to Shared Facilities Manager and applied to or used to offset expenses associated with such use or Shared Facilities Costs, as reasonably determined by Shared Facilities Manager. If, however,a commercial use is made of any roof that does not benefit any of the Elements, the costs incurred in connection with such commercial use (such as the installation of equipment) shall not be borne by the Element Owners and any consideration paid or received for such rooftop use shall be personal to Shared Facilities Element Owner and shall not be applied to or used to offset Shared Facilities Costs. To the extent services are provided to any Element (or portion thereof) or Unit within an Element from rooftop facilities or equipment (such as antennas or dishes providing telecommunications services),such Element or Unit shall be responsible for the charges therefor, unless same are billed to Shared Facilities Manager, in which case Shared Facilities Manager shall allocate to or among the Elements in the same manner as other expenses incurred by Shared Facilities Manager under this Section. 3.7 Signs. Declarant hereby reserves and grants to Shared Facilities Manager the exclusive right to regulate and approve the placement, installation, alteration and replacement of any signage (including without limitation pylons, monument signs, billboards, murals, digital displays and other signage)visible from the exterior of any Element (including on the exterior facade of any Structure)or on the Shared Facilities within The Properties,all as Shared Facilities Manager may deem necessary, desirable or acceptable from time to time, without requiring approval from any Owner. All such signage shall be subject to and comply with Legal Requirements, the Project Standard, signage criteria adopted from time to time by Shared Facilities Manager for Three Hundred Alton, and such rules and regulations as may be established from time to time by Shared Facilities Manager. Any consideration paid or received for such signage located on the exterior façade of any Element shall be the sole property of the applicable Element Owner. No Owner of an Element shall place or install any signage within the interior of or on the exterior of any other Element without the prior written consent of the Shared Facilities Manager, whereupon such signage shall be deemed part of the Element Exclusive Facilities of the Benefitted Element. Once interior or exterior signage has been approved by the Shared Facilities Manager as hereinabove provided, the Owner of the Benefitted Element shall have the right and obligation to access, maintain, repair and replace such signage as part of the Element Exclusive Facilities hereunder; subject, however, to any conditions of such approval. Notwithstanding the foregoing, Shared Facilities Manager shall have the right to install directional signage as part of the project-wide directional signage system and other project identification signage on the exterior façade and/or within the public areas of any individual Element; provided, however, that such signage shall not unreasonably interfere with the operations of the affected Element and shall be consistent with the Project Standard. Declaration of Covenants -23- Page 992 of 2461 (Reserved for Clerk of Court) 3.8 Limited Shared Facilities. Any patios, balconies, terraces, lanais and/or sidewalks adjacent to an Element or a Unit within a Submitted Element shall, subject to the provisions hereof, be a Limited Shared Facility of such Element(s) and/or Unit, so that the Element Owner and/or Unit Owner, as applicable, may, to the extent permitted by law, incorporate and use such areas in connection with, or relating to, the operations from its Element and/or Unit. Such Limited Shared Facilities shall be maintained, repaired and replaced as provided in Article 6 hereof. Notwithstanding the designation of any portion of the Shared Facilities as Limited Shared Facilities, same shall not allow any Owner and/or user of the Limited Shared Facilities to preclude passage through such areas as may be needed from time to time for emergency ingress and egress, for the maintenance, repair, replacement, alteration and/or operation of the Shared Facilities which are most conveniently serviced (in the sole determination of the Shared Facilities Manager) by accessing such areas (and an easement is hereby reserved for such purposes)and/or as may be required by applicable law. 4. ADDITIONAL EASEMENT RIGHTS AND EASEMENTS 4.1 Encroachment. if(a) any portion of the Shared Facilities (or improvements constructed thereon) encroaches upon any other portion of an Element or upon any Structure; (b) any portion of an Element(or improvements constructed thereon) encroaches upon the Shared Facilities or any other Element; or(c) any encroachment shall hereafter occur as the result of (i) construction of any improvement; (ii) settling or shifting of any improvement; (iii) any alteration or repair to any improvement after damage by fire or other casualty or any taking by condemnation or eminent domain proceedings of all or any portion of any improvement or portion of the Shared Facilities, or any Element, then, in any such event, a perpetual easement is granted and shall exist for such encroachment and for the maintenance of the same so long as the Structure causing said encroachment shall stand. 4.2 Easements of Support. Whenever any Structure on any Element or included in the Shared Facilities adjoins any Structure included in any other portion of The Properties, and/or in the event that any Structure is constructed so as to transverse Element lines and/or to be connected in any manner to any Structure on any other Element, then there shall be (and there is hereby declared and created) a perpetual easement of support for such Structure(s),such that each such Structure shall have and be subject to an easement of support and necessity in favor of the other Structure. 4.3 Easements for Pedestrian and Vehicular Traffic. In addition to the general easements for use of the Shared Facilities granted and reserved herein, there shall be, and Declarant hereby reserves and grants for itself, Shared Facilities Manager and all Owners of Elements/Structures within The Properties(as well as the Unit Owners), that each and every Owner and Unit Owner (and their respective Permitted Users), and Declaration of Covenants -24- Page 993 of 2461 (Reserved for Clerk of Court) Shared Facilities Manager and Declarant, shall have a non-exclusive easement appurtenant for(a) pedestrian traffic over,through and across sidewalks, streets, paths, walks and other portions of the Shared Facilities as from time to time may be intended and designed for such purpose, and (b)vehicular traffic over ail private streets or drives within the Shared Facilities, subject to the parking provisions set forth in Article 16 herein. Notwithstanding the foregoing, Shared Facilities Manager shall have the right to designate certain private streets and drives within the Shared Facilities for the exclusive or primary use by one or more Elements (to the exclusion of other Elements)for traffic circulation, valet parking, drop-off and pick-up and/or other ancillary uses to such Element(s), and to add to or withdraw any of the foregoing from the Shared Facilities, provided that the requirements of Article 2 are not violated. 4.4 Proiect Encumbrances. The easements, rights, restrictions and provisions set forth in the Development Rights and/or Project Encumbrances and any other easements or instruments affecting The Properties (or any portion thereof) recorded in the Public Records of the County, burden and/or benefit (as applicable) The Properties or Element(s) or Shared Facilities (or portion thereof) therein described, subject to the terms and conditions thereof. Without limiting the foregoing,The Properties or Shared Facilities (or applicable portions thereof) are, and shall be, subject to, and encumbered by the Development Rights and/or Project Encumbrances, which, among other things, may grant rights to persons who are not Owners and/or the general public. Accordingly, each Element is governed and burdened by,and subject to,and each Owner is governed and burdened by, and subject to, all of the terms and conditions of the Development Rights and/or Project Encumbrances that encumber or otherwise affect such Element or The Properties or Shared Facilities generally. Each Owner (for itself and its Permitted Users) understands and agrees, by acceptance of a deed or otherwise acquiring title to an Element or Unit, that the rights in and to The Properties and Shared Facilities are junior and subordinate to the rights therein granted under the Development Rights and Project Encumbrances. Pursuant to the Development Rights and/or Project Encumbrances,the Elements may be obligated for the payment of certain ongoing costs and responsibilities. Any and all payments that are the responsibility of Shared Facilities Manager or Shared Facilities Element Owner under the Project Encumbrances pursuant to the terms thereof or this Declaration shall be part of the Assessments charged to Owners by Shared Facilities Manager. Any and all reimbursements, if any,for expenses (other than capital expenditures associated with the initial construction of improvements comprising the Elements) shall be credited against the annual budget. EACH OWNER SHOULD THOROUGHLY REVIEW THE DEVELOPMENT RIGHTS AND PROJECT ENCUMBRANCES TO DETERMINE THE EFFECT SAME WILL HAVE ON THE PROPERTIES AND SHARED FACILITIES. 4.5 Recorded Utility Easements. Easements for the installation and maintenance of utilities are reserved as and to the extent shown on recorded plats and/or any recorded Declaration of Covenants -25- Page 994 of 2461 (Reserved for Clerk of Court) instruments covering the Properties and/or as provided herein. The portion of The Properties covered by an easement and all improvements in such portion shall be maintained continuously by the applicable Element Owner (if within an Element), Shared Facilities Manager or its designee (if part of the Shared Facilities) or the Owner of a Benefitted Element (if part of the Element Exclusive Facilities serving such Benefitted Element), except for installations for which a public authority or utility company is responsible. The appropriate water and sewer authority, electric utility company, telephone company and other utility provider,the applicable Element Owner liable for the maintenance thereof, Declarant and Shared Facilities Manager, and their respective successors, assigns and designees, as applicable, shall have a perpetual easement for the installation and maintenance of water lines, sanitary sewers, storm drains, and electric and telephone lines, cables and conduits, under and through the utility easements as shown on the plats and recorded instruments. 4.6 Public Easements. Fire, police, health and sanitation and other public service personnel and vehicles shall have a permanent and perpetual easement for ingress and egress over and across the Shared Facilities in the performance of their respective duties. Additionally, easements are hereby reserved in favor of all Owners (and their Tenants and other Permitted Users)for emergency ingress and egress over, through and across all Shared Stairways. 4.7 Easements for Element Exclusive Facilities. Declarant hereby reserves and grants for itself, Shared Facilities Manager and all Owners of Benefitted Elements within The Properties (and their respective designees), easements for ingress and egress over, under and through The Properties (including all Burdened Elements thereof), to the extent reasonably necessary to access and use the Element Exclusive Facilities for their intended purposes, and to perform the maintenance, repair and replacement obligations with respect to the Element Exclusive Facilities required of the applicable Owner of the Benefitted Element set forth herein. The foregoing reservation and grant shall be deemed to include all easements and rights of access in and to the Burdened Elements and Element Exclusive Facilities reasonably necessary to enable the applicable Owner of the Benefitted Element and its contractors, subcontractors, suppliers, agents and employees to exercise its rights and perform its obligations with respect to the Element Exclusive Facilities under this Declaration, but shall be subject to such rules and regulations as may be established from time to time by Shared Facilities Manager. In exercising the easements contained in this Section, the Benefitted Element Owner shall use reasonable efforts to minimize interference with the other proper uses of the Burdened Element and the operations therefrom and restore any damage caused thereby. 4.8 Easements for Shared Facilities Manager. Declarant hereby reserves and grants to Shared Facilities Manager and its designees, perpetual easements over, under and Declaration of Covenants -26- Page 995 of 2461 l , (Reserved for Clerk of Court) through The Properties (including all Elements thereof), for the construction and installation of the Shared Facilities and the Element Exclusive Facilities, and/or the operation, repair, replacement, maintenance, alteration and relocation of same, and/or the performance of any rights and/or obligations of Shared Facilities Manager herein described. The foregoing reservation and grant shall be deemed to include all easements and rights of access in and to the Elements, Shared Facilities and Element Exclusive Facilities necessary or desirable to enable Shared Facilities Manager to exercise its rights and perform its obligations under this Declaration. The easements granted herein shall be both "in gross" and personal to Shared Facilities Manager, and also appurtenant to the Shared Facilities Element, and the easements shall also run in favor of the contractors, subcontractors,suppliers, agents,employees and designees of Shared Facilities Manager. The easements reserved and granted to Shared Facilities Manager and the Shared Facilities Element under this Section shall be in addition to the rights and easements reserved and/or granted to Shared Facilities Manager and the Shared Facilities Element under any other provision of this Declaration. 4.9 Declarant's Construction,Sales and Leasing Activities. Declarant and its affiliates(and its and their designees, including agents, employees, contractors, subcontractors and suppliers) shall have the right from time to time to enter upon The Properties(including, without limitation, the Elements) for the purpose of the installation, construction, reconstruction, repair, replacement, operation, expansion and/or alteration of any improvements or facilities on or comprising a part of the Shared Facilities or elsewhere on The Properties that Declarant and its affiliates or designees elect to effect, and to use, without charge, the Shared Facilities and other portions of The Properties (excluding the interior of the Elements) for sales, leasing, displays and signs or for any other purpose during the period of construction, leasing and sale of any portion thereof or of other portions of adjacent or nearby property. Without limiting the generality of the foregoing, Declarant and its affiliates (and its and their designees) shall have the specific right to maintain upon any portion of The Properties (excluding the interior of the Elements) sales, leasing, administrative, construction or other offices, and to erect, maintain, repair and replace, from time to time, one or more signs on the Shared Facilities for the purposes of advertising the sale or lease of Structures, including without limitation individual Units or other portions thereof. Appropriate exclusive and non-exclusive easements of access and use are hereby expressly reserved unto Declarant and its affiliates, and its and their successors, assigns and designees, including agents, employees, contractors, subcontractors and suppliers, for all of the foregoing purposes, including construction, sales and leasing activities contemplated herein. Any obligation (which shall not be deemed to be created hereby) to complete portions of the Shared Facilities shall, at all times, be subject and subordinate to the foregoing rights and easements and to the above-referenced activities. Accordingly, Declarant shall not be liable for delays in such completion to the extent resulting from the exercise of or need to conclude any of the above-referenced activities prior to such completion. Declaration of Covenants -27- Page 996 of 2461 (Reserved for Clerk of Court) 5. ALTERATIONS AND IMPROVEMENTS 5.1 Alterations. Each Owner may make such alterations within its Element as it may from time to time determine without the consent or approval of the other Owners or Shared Facilities Manager;subject, however, to the remaining provisions of this Article 5 and to all other provisions of this Declaration. Notwithstanding anything herein to the contrary, no addition, alteration or improvement shall be permitted to the extent same is not permitted pursuant to the terms of any Development Rights and any Project Encumbrances or Legal Requirements. The initial construction of Structures on and• within an Element shall not be subject to this Article. 5.2 Approval Required. Without the prior written consent of Shared Facilities Manager, which consent may be granted or withheld in the reasonable discretion of Shared Facilities Manager, no alteration, addition or improvement shall be made by an Owner to any part of its Element that would: (a) alter, modify and/or otherwise affect the uniform exterior appearance of the Structures including without limitation any paint or other exterior finishing; any windows, walls or balconies; any awning, canopy or shutter; and/or exterior lighting schemes; (b) involve a structural alteration or affect the Shared Facilities or penetrate another Element; (c) reduce the size of the Element Exclusive Facilities or prevent or interfere with access to or use of any Element or any Project Facilities, except for temporary interruptions to the extent consistent with the Construction Practices; (d) would be likely to increase by more than ten percent(10%) any line item of the Shared Facilities Costs over the then existing line item for such Shared Facilities Costs, or any increase in the Shared Facilities Costs of more than five percent (5%)in the aggregate over the Shared Facilities Costs for the preceding calendar year; (e) modify the drainage facilities for The Properties;or (f) have a material adverse effect on (i) the operation, use, occupancy, leasing, maintenance, construction, repair, replacement or condition of any other Element, (ii)the ability of any other Owner to satisfy the Project Standard with respect to the improvements comprising its Element, (iii)the access to or use of any Project Facilities (excluding temporary interruptions to such access or use), Declaration of Covenants -28- Page 997 of 2461 (Reserved for Clerk of Court) or(iv)the overall costs and expenses incurred by any other Owner in operating, maintaining, repairing, constructing or replacing any of the improvements comprising its Element. 5.3 Construction Practices. Any alterations to the Elements (which, for purposes hereof shall include repair, reconstruction and replacement work), irrespective of whether the consent or approval of Shared Facilities Manager is required, shall be performed in compliance with the following provisions(the"Construction Practices"): (a) All alterations shall be consistent with the Project Standard. (b) All alterations shall be performed (i) with reasonable diligence and dispatch, (ii) in a good and workmanlike manner, (iii) in accordance with the Project Standard and all Legal Requirements, (iv) with respect to the portions of The Properties affected by any Project Encumbrances, in accordance with any requirements imposed by such Project Encumbrances, (v) pursuant to good, generally prevailing management practices and procedures which, to the extent reasonably feasible, will avoid or minimize any unreasonable resulting disturbances or interferences with the use, operation and occupancy,of or access to and from any other Element, and (vi) by licensed contractors and/or service providers approved by Shared Facilities Manager that have (unless otherwise agreed in advance and in a written instrument by Shared Facilities Manager) policies of insurance covering such risks, in such amounts and otherwise in such forms as may be required by Shared Facilities Manager from time to time, including without limitation builder's risk insurance, worker's compensation insurance (as required by Legal Requirements), commercial general liability insurance, automobile liability insurance, product liability insurance, contractual liability insurance, and excess liability (umbrella) insurance. Each such policy of insurance shall name the Element Owner performing the alteration, Shared Facilities Manager and any other affected Element Owner(e.g.,the applicable Burdened Element Owner, if the alteration affects Element Exclusive Facilities) and for as long as Declarant owns any portion of The Properties, Declarant, and their respective designees, as an additional insured,and shall be primary for any and all Losses arising out of or in connection with the contractor's and/or service provider's work. Such insurance shall also meet the insurance requirements of Section 11.9. (c) Before beginning any alteration, the Owner performing the alteration shall procure, at its expense, all necessary licenses, permits, approvals and authorizations from the City, the County, and any other applicable Governmental Authority, and shall deliver photocopies thereof to Shared Facilities Manager (and, if the alteration affects areas or facilities located in or Declaration of Covenants -29- Page 998 of 2461 (Reserved for Clerk of Court) that benefit another Element,the Owner of such Element). Upon request,other Element Owners shall join in the application for such licenses, permits, approvals and authorizations whenever such action is necessary, and the Element Owner performing the alteration covenants that such other Element Owners and Shared Facilities Manager will not suffer, sustain or incur any cost, expense or liability or other Losses by reason thereof and agrees to indemnify each of them and hold them harmless against any such Losses. (d) At all times during the performance of any alteration (including during any removal, installation, construction, inspection, maintenance, repair and/or replacement of any equipment, facilities or other improvements), the Element Owner performing such alteration shall coordinate and stage all work with Shared Facilities Manager (and, if the alteration requires access to or affects areas or facilities that benefit another Element, the Owner of such Element)to minimize, as much as reasonably possible, impact and disruption on the other Elements and the Project Facilities, including without limitation vehicular and pedestrian access and traffic,the use and enjoyment thereof and the conduct of any business thereon. (e) The Element Owner performing the alteration shall be solely responsible for all costs incurred in connection with such alteration,such as an increase in costs of trash removal due to the work. (f) To the extent any alteration requires plans or plans have otherwise been prepared,the Element Owner performing such alteration shall provide copies of the as-built plans to Shared Facilities Manager (and, if the alteration affects areas or facilities located in or that benefit another Element, to the Owner of such Element). (g) All costs associated with any alteration hereunder shall be promptly and fully paid for by the Element Owner performing same. Without limiting the foregoing, no Owner shall permit any liens to attach to another Element or the Project Facilities as a result of its work and the Owner performing the alteration shall either bond over or pay and discharge any lien so attaching within twenty (20) days after the earlier of notice of the lien or demand by the Owner of such other Element or Shared Facilities Manager. Any Element Owner whose act or omission forms the basis for a lien on another Element shall indemnify and save the Owner of such Element and Shared Facilities Manager harmless from and against any and all Losses resulting therefrom. If an Element Owner shall fail to obtain within such twenty (20) day period the requisite release or transfer of any lien claim, then Shared Facilities Manager (or the Owner of the liened Element, if Shared Facilities Manager does not pursue same) may, at its option, Declaration of Covenants -30- Page 999 of 2461 (Reserved for Clerk of Court) secure the release of the lien claim by any means available, including bonding or settlement, whereupon the defaulting Element Owner shall, within ten (10) days after demand, reimburse Shared Facilities Manager or the other Element Owner,as applicable,for the latter's costs and expenses incurred in securing the lien release, including reasonable attorneys' fees. Interest shall accrue at the Default Rate on the amount of any such reimbursement obligation not paid within ten (10) days after demand. Notices by any party under this paragraph shall be provided to Shared Facilities Manager, the Owner performing the alteration and any Owner of a liened Element. (h) The Element Owner performing the alteration shall be solely liable for all costs and expenses, and any Losses, incurred, caused or occasioned by its acts or omissions, the acts or omissions of its Permitted Users, as well as the acts or omissions of its contractors, service providers, agents and representatives who cause any damage to any other Element (or any portion thereof), and shall indemnify and hold the Owner of such damaged Element, Shared Facilities Manager and for as long as Declarant owns any portion of The Properties, Declarant, and its and their respective directors, officers, employees, contractors, agents or affiliates, harmless from and against any and all Losses in any way whatsoever connected with the alteration contemplated herein. (i) In addition to the foregoing, Shared Facilities Manager shall have the right to establish non-discriminatory rules and restrictions on any and all persons performing alterations with respect to any Element, including, without limitation, restricting the hours during which construction and/or repair work may be performed (including limiting jack hammers and other noisy work to specific hours designated by Shared Facilities Manager), imposing noise abatement requirements, restricting access of contractors to certain areas, designating specific staging areas, restricting access by trucks and construction vehicles, and requiring a security deposit or other collateral to protect against damage to the Shared Facilities or any Structure that may be caused during such work, which rules and regulations may be modified from time to time. Such rules may also establish procedures and standards for the submission and review of any matter that requires Shared Facilities Manager's approval,and for inspection and final approval of any completed work pursuant to an approval of Shared Facilities Manager hereunder. In addition, in order to assure that all work by any Owner is performed to the Project Standard, each Element Owner agrees to contract with Shared Facilities Manager and/or a vendor or contractor first approved by Shared Facilities Manager to perform any alteration hereunder. Declaration of Covenants -31- Page 1000 of 2461 (Reserved for Clerk of Court) (j) With respect to any alterations, improvements or other work(in progress, Shared Facilities Manager shall have the right to establish requirements and guidelines for the protection of all such work in progress from acts of God and other force majeure events such as (but not limited to) hurricanes, floods, acts of terrorism or war, civil disturbances and other events that would reasonably be anticipated to damage such work in progress or impact same in a way that would potentially threaten or place at risk the health, safety or welfare of any Owner or Permitted User or the property of any of the foregoing, or adversely impact other portions of The Properties. 5.4 Review of Alterations. Each Owner desiring to make any alterations for which approval of Shared Facilities Manager must be obtained shall submit all plans and specifications for the proposed alteration to Shared Facilities Manager.Shared Facilities Manager may condition its approval as it deems appropriate,and may require submission of additional plans and specifications (or more detailed plans and specifications); studies, reports and/or evaluations and any other materials from pre-approved consultants and other professionals confirming and detailing the potential effects(whether short-term or long- term)of such alterations on the Shared Facilities or any other portion of The Properties; and/or other information prior to approving or disapproving the material submitted. Review of any plans and specifications relating to alterations and any other activities of Shared Facilities Manager in connection with any Owner's alterations shall be solely and exclusively for Shared Facilities Manager's benefit. No person shall, under any circumstances, be a beneficiary of Shared Facilities Manager's requirements hereunder. Shared Facilities Manager may freely waive any of its requirements hereunder at any time if, in Shared Facilities Manager's sole discretion, it desires to do so. In particular,. but without limitation, Shared Facilities Manager makes no representations and assumes no obligations to any Owners or any third parties concerning the quality of the construction of any alterations. In addition, the Shared Facilities Manager shall not be liable to any Owner or its Permitted Users or any other party for any Losses suffered or claimed by any Owner or its Permitted Users or any other party on account of any defects in such plans, or the failure of such plans or the alterations to comply with any Legal Requirements. Any approval tendered by Shared Facilities Manager shall under all circumstances be interpreted in a manner consistent with this limitation of Shared Facilities Manager's liability. With respect to any alterations that require Shared Facilities Manager's approval under this Article, each Owner shall pay Shared Facilities Manager a construction oversight fee equal to five percent (5%) of the total cost of the alterations, provided that if such cost exceeds$1,000,000 the construction management fee shall be equal to three percent (3%) of such total costs to compensate Shared Facilities Manager's for its services. In addition, each Owner shall promptly upon request therefor reimburse Shared Facilities Manager for the amount of all reasonable fees and expenses incurred by it(including without limitation reasonable attorneys' fees and expenses, and reasonable fees and expenses of any architects,engineers and other Declaration of Covenants -32- Page 1001 of 2461 (Reserved for Clerk of Court) design professionals) in connection with Shared Facilities Manager's response to any requested approval of any proposed alterations. 5.5 Element Exclusive Facilities. The Owner of the Burdened Element shall not make alterations to the Element Exclusive Facilities within the Burdened Element, or to the Burdened Element that would impede in any material way the Benefitted Element Owner's use of the Element Exclusive Facilities or the benefits afforded by them, without the prior written consent of the Owner of the Benefitted Element served thereby, which consent shall not be unreasonably withheld. The Owner of the Benefitted Element shall not make alterations to the Element Exclusive Facilities serving it that would have a material adverse effect (as described in subsection 5.2(f)) on the Burdened Element in which such facilities are located with the consent of the Owner of such Burdened Element, which shall not be unreasonably withheld. 6. MAINTENANCE OF STRUCTURES,ELEMENTS AND OTHER FACILITIES 6.1 Maintenance of Shared Facilities. Subject to the other provisions hereof, Shared Facilities Manager shall at all times maintain in good repair and manage, operate and insure, and shall replace as often as necessary, the Shared Facilities and, to the extent not otherwise provided for, the paving, water and sanitary sewer facilities, drainage structures, landscaping, improvements and other structures (except those Limited Shared Facilities, if any, to be maintained by Owners) situated on or comprising the - Shared Facilities (if any), with all such work to be done as ordered by Shared Facilities Manager. All work pursuant to this Section, and all costs and expenses incurred by Shared Facilities Manager pursuant to this Article or any other provision of this Declaration (with respect to the Shared Facilities or otherwise, and whether or not so stated in any particular provision hereof), and all expenses allocated to the Shared Facilities Element or incurred by the Shared Facilities Element Owner with respect to the Shared Facilities Element, shall be paid for by Shared Facilities Manager through Assessments (either general or special) imposed in accordance with Article 15. Shared Facilities Manager shall have the power to incur, by way of contract or otherwise, expenses general to all or applicable portions of The Properties,or appropriate portions thereof, and Shared Facilities Manager shall then have the power to allocate portions of such expenses among the Element Owners and/or the Element Specific Managers, based on such formula as may be adopted by Shared Facilities Manager or as otherwise provided in this Declaration or any Supplemental Declaration. The portion so allocated to an Element Specific Manager shall be deemed a general expense thereof, collectible through its own assessments. No Owner may waive or otherwise escape liability for Assessments by non-use (whether voluntary or involuntary) of the Shared Facilities or abandonment of the right to use the Shared Facilities. Declaration of Covenants -33- Page 1002 of 2461 (Reserved for Clerk of Court) 6.2 Exteriors of Structures. Without limiting the generality of Section 6.1, Shared Facilities Manager shall maintain all exterior surfaces and roofs, facias and soffits of the structures (including the Structures) and other improvements that are part of Shared Facilities located on the Elements (including driveway, sidewalk and other surfaces) in a neat, orderly and attractive manner consistent with the Project Standard.The aforesaid maintenance shall include maintaining the structural components of the improvements included in Shared Facilities (irrespective of the ownership of same), project-wide maintenance, repair and replacement of glass walls, windows', doors (including the framing and hardware associated with sliding glass doors), balconies and terraces and other Limited Shared Facilities comprising such improvements, provided that if repair or replacement of such improvements is due to damage caused by a particular Element Owner or any Unit Owner in such Element (or its or their Permitted Users), the cost thereof shall be paid solely by such Element Owner. Shared Facilities Manager shall clean, repaint or restain, as appropriate,the exterior portions of each Structure as often as is necessary to comply with the maintenance requirements set forth herein. 6.3 Maintenance of Elements. The Owner of each Element shall, at such Owner's cost and expense, maintain all interior and exterior portions of such Element, other than the Shared Facilities and other portions of The Properties designated to be maintained by Shared Facilities Manager or another Owner under this Declaration, in a neat, orderly and attractive manner consistent with the Project Standard and the other requirements of this Declaration. With respect to the maintenance of unique or other particular features of an Element,the following provisions shall apply: (a) As to any terrace, balcony or patio that is included in an Element (and not part of the Shared Facilities) and/or part of the Limited Shared Facilities used by any Element Owner or Unit Owner(as applicable), including without limitation, any terraces or patios adjacent to an Element and/or any Units, the applicable Owner or Unit Owner shall have exclusive use of same (subject to the rights of Shared Facilities Manager as elsewhere provided herein), and shall be responsible for the cleaning, maintenance, repair (other than any necessary structural or project-wide repairs or replacements, which shall be the responsibility of Shared Facilities Manager as hereinabove provided in this Article)and upkeep of same. (b) The Owner of an Element that includes or has appurtenant recreational facilities or amenities areas or exclusive use rights with respect to such amenities, terraces, balconies or Limited Shared Facilities or other similar improvements, shall be liable for any Losses which may result from the existence of same, be it Losses to property and/or injury or death to persons, and shall indemnify and Client:Will the plate glass be maintainedby each Owner or the Shared Facilities Manager? Declaration of Covenants -34- Page 1003 of 2461 (Reserved for Clerk of Court) hold Shared Facilities Manager and Declarant and its and their respective directors, officers, employees, contractors, agents or affiliates harmless from and against any and all Losses whatsoever connected with any such facilities, areas or improvements as contemplated herein. (c) As to any windows and glass doors bounding an Element or Unit(as applicable), together with all hardware, framing and/or sealing of same, the applicable Owner or Unit Owner shall be liable for the routine repair and upkeep (as opposed to the project-wide maintenance, repair and replacement of such improvements required of Shared Facilities Manager as hereinabove provided in this Article) as necessary to maintain same in good working order and in accordance with the Project Standard and other requirements of this Declaration. (d) [address other unique features within or appurtenant to the Elements, if any] 6.4 Landscaping. Shared Facilities Manager shall maintain and irrigate, and replace when necessary, the trees, shrubbery, grass and other landscaping-included in the Shared Facilities, including without limitation landscaping around and/or serving any exterior portion of The Properties and exterior landscaping on any Element that are part of the project-wide landscaping scheme or visible by more than one Element,in a neat,orderly and attractive manner and consistent with the general appearance of The Properties as a whole and the Project Standard. Each Owner of an Element shall be responsible for maintenance,irrigation and/or replacement of landscaping within its Element that is not part of the project-wide landscaping scheme or visible by more than one Element, at such Owner's cost and expense. Shared Facilities Manager shall have the right to delegate responsibility for landscaping located within any Element to the Owner of such Element, at its expense, as provided in Section 6.8 below. Landscaping shall be maintained by any party responsible therefor hereunder consistent with the general appearance of The Properties as initially landscaped (such standard being subject to being raised by virtue of the natural and orderly growth and maturation of applicable landscaping, as properly trimmed and maintained), in addition to consistency with the Project Standard. 6.5 Exterior Proiect Lighting. Shared Facilities Manager shall be responsible for the operation, maintenance„repair and replacement of all exterior project lighting and all street or exterior lighting fixtures, installations and equipment serving or being part of the Shared Facilities (solely or primarily) and/or which are part of an exterior lighting scheme applicable to more than one Element within Three Hundred Alton,even if same are located within an Element other than the Shared Facilities Element or the common areas/elements owned or administered by the Owner thereof or Element Specific Manager therefor (and said fixtures, installations and equipment shall be deemed Declaration of Covenants -35- Page 1004 of 2461 (Reserved for Clerk of Court) Shared Facilities for the aforesaid purposes). In the event of doubt as to whether any particular street or exterior lighting serves or is part of the Shared Facilities solely or primarily, or is part of an exterior lighting scheme applicable to more than one Element within Three Hundred Alton, the decision of Shared Facilities Manager in such regard shall be final and conclusive. No Element Owner (or Unit Owner), shall make any change or modification to any exterior project lighting fixtures, installations and equipment serving or being part of the Shared Facilities (solely or primarily) and/or which are part of an exterior lighting scheme applicable to more than one Element within Three Hundred Alton, or any change and/or modification which may affect the exterior project lighting scheme. Notwithstanding the foregoing, in the event that any Owner and/or Element Specific Manager requests Shared Facilities Manager to maintain, repair or replace any street or exterior lighting fixtures, installations or equipment which would not otherwise fall under Shared Facilities Manager's responsibilities hereunder,then Shared Facilities Manager may(in its sole discretion) do so as long as all costs and expenses thereof are paid by the requesting Owner and/or Element Specific Manager. Charges for electricity used by street or exterior lights billed to (a) an Element (other than the Shared Facilities Element) shall be paid by the Owner thereof or Element Specific Manager therefor (as applicable), and (b) the Shared Facilities Element or Shared Facilities Manager shall be part of the Assessments charged to Owners by Shared Facilities Manager. Each Owner of an Element agrees to comply with the lighting criteria and requirements adopted by Shared Facilities Manager with respect to interior lighting within any Element that is visible from the exterior of The Properties, which criteria and requirements are designed or intended to preserve a consistent and uniform appearance relative to lighting at Three Hundred Alton, provided that no Owner of an Element shall be required to replace lighting previously installed in its Element in compliance with the terms of this Declaration and/or any approvals by the Shared Facilities Manager hereunder in order to comply with the foregoing covenant. 6.6 Water, Sewer and Drainage Facilities. The maintenance obligations of Shared Facilities Manager shall include, without limitation, (a) the duty and obligation to operate and maintain any portion of the private water and sanitary sewer facilities (regardless of where located within The Properties)serving the Shared Facilities Element and/or more than one Element in accordance with the Project Encumbrances, the requirements of the Water and Sewer Department for the County and any other applicable Governmental Authority,and (b)the duty and obligation to(i) operate and maintain any portion of the surface water management system (regardless of where located with The Properties) serving the Shared Facilities Element and/or more than one Element in accordance with any permit(s) issued by the Department of Environmental Resources Management (DERM) and/or any other applicable water management district and the Project Encumbrances(as applicable), (ii)carry out, maintain, and monitor any required Declaration of Covenants -36- Page 1005 of 2461 (Reserved for Clerk of Court) wetland mitigation tasks and (iii) maintain copies of all permitting actions and other documentation with regard to same. 6.7 Maintenance of Element Exclusive Facilities. Notwithstanding the location of Element Exclusive Facilities within the Burdened Elements, the systems, equipment and other facilities located within or comprising the Element Exclusive Facilities (such as the elevator cabs, cables, machinery and equipment, the HVAC systems, the wires, cables, generators and other apparatus used in the delivery of the utility services, etc.), to the extent installed by the Owner of the Benefitted Element served exclusively thereby, shall be and remain the property of such Benefitted Element Owner. The Element Exclusive Facilities shall be solely maintained, repaired and replaced by the Owner of the Benefitted Element served exclusively by such facilities, at its cost and expense (and neither any other Owner (including the Owner of the Burdened Element) nor Shared Facilities Manager shall have any obligation for the maintenance, repair or replacement of same or the cost thereof). In order to accommodate the foregoing, Declarant has reserved and granted the easements set forth in Section 4.7 in favor of all future Owners of the Benefitted Elements (and their respective designees). 6.8 Maintenance Generally. Notwithstanding anything contained herein to the contrary, the following general provisions shall govern with respect to maintenance obligations under this Declaration: (a) All maintenance obligations must be undertaken by the party responsible therefor(including Shared Facilities Manager and any Owner)in such a manner and as frequently as necessary to assure(at a minimum)that the portions being maintained are consistent with the general appearance of The Properties as initially constructed and otherwise improved (and with respect to Structures and other exterior improvements, taking into account, however, normal weathering and fading of exterior finishes,but not to the point of unsightliness), and otherwise in accordance with the Project Standard and in compliance with all Legal Requirements and the terms and conditions of the Project Encumbrances(where applicable). (b) With respect to the maintenance obligations of the Element Owners set forth in this Declaration,and to assure that the maintenance is performed to the Project Standard (or such higher standard as may be required hereunder),each Element, Owner agrees (i) unless waived by Shared Facilities Manager, to contract with Shared Facilities Manager and/or a vendor first approved by Shared Facilities Manager,to perform such maintenance (i.e., no vendor shall be used by any Owner to perform maintenance work hereunder unless such vendor is pre- approved by Shared Facilities Manager), and (ii)to perform all maintenance and repairs to its Element (or any portion thereof) in accordance with the Declaration of Covenants -37- Page 1006 of 2461 (Reserved for Clerk of Court) Construction Practices.Shared Facilities Manager may waive its right to approve vendors hereunder at any time if, in Shared Facilities Manager's sole discretion, it desires to do so. In addition,Shared Facilities Manager's failure to enforce the requirements set forth in this subsection shall not be deemed a waiver of such right or restrict Shared Facilities Manager's right to enforce same in the future, nor shall Shared Facilities Manager be liable to any Owner or its Permitted Users or any third parties on account of such failure to enforce such requirements. (c) Shared Facilities Manager shall have the right to delegate maintenance responsibilities for certain portions of Shared Facilities (such as, by way of example and not limitation, landscaping, signage and the like) located within, appurtenant to or designated for the exclusive use of any Element to the Owner . of such Element on a temporary or permanent basis as may be determined by Shared Facilities Manager. Upon any such delegation, to the extent such maintenance responsibilities are shifted from Shared Facilities Manager hereunder to another Element Owner, Shared Facilities Costs shall be reasonably adjusted and the Owner of the applicable Element shall perform the maintenance responsibility so delegated at its sole cost and expense in accordance with the requirements of this Declaration and the Project Standard. Nothing contained herein shall limit or restrict the right and ability of any Element Owner who has been delegated maintenance responsibilities hereunder for any Shared Facilities to agree to perform (or cause the performance of) of such maintenance obligations jointly or on a cooperative basis.Any delegation made pursuant hereto may be modified or revoked by the Shared Facilities Manager at any time. 6.9 Right of Entry. In addition to such other remedies as may be available under this Declaration, in the event that an Owner fails to maintain a Structure, Element, Limited Shared Facilities or Element Exclusive Facilities as required hereby, Shared Facilities Manager shall have the right to enter upon the Element in question or the Burdened Element(in the case of the failure to maintain Element Exclusive Facilities) and perform such duties; provided, however, that other than in the event of an emergency (in which case no notice is required, though notice shall be provided within a reasonable time following an emergency), such entry shall be during reasonable hours and only after five (5) business days' prior written notice (or such longer time as may reasonably be required to effect such repair to the extent that said curative activity cannot reasonably be completed within such five (5) business day period). The Owner having failed to perform its maintenance duties shall be liable to Shared Facilities Manager for the costs of performing such remedial work and shall pay a surcharge of not more than twenty- five percent (25%) of the cost of the applicable remedial work, all such sums being payable upon demand and to be secured by the lien provided for in Article 15 hereof. Without limiting the generality of the foregoing, Shared Facilities Manager shall have all Declaration of Covenants -38- Page 1007 of 2461 (Reserved for Clerk of Court) of the same rights to bring an action at law against the Owner having failed to perform its maintenance duties, to record a claim of lien against such Owner's Element, to foreclose such lien,and/or to exercise any and all other remedies under this Declaration or applicable law, as are available to Shared Facilities Manager with respect to an Owner's failure to pay any Assessments under Article 15 hereof. No bids need be obtained for any of the work performed pursuant to this Section and the person(s) or company performing such work may be selected by Shared Facilities Manager in its sole discretion. There is hereby created an easement in favor of Shared Facilities Manager, and its applicable designees over each Element for the purpose of entering onto the Element in the performance of the work herein described, provided that the notice requirements of this Section are complied with. 6.10 Common Electric Vehicle Charging Station. To the extent that The Properties now or hereafter contains Electric Vehicle Charging Stations within the Shared Facilities for the benefit of undesignated Owners (e.g., not an EVCS within, or solely for, an exclusively assigned parking space) ("Common EVCS"), then the following provisions shall be applicable: (a) The Shared Facilities Manager may adopt, from time to time, rules and regulations regarding the use of the Common EVCS, including, without limitation, rules and,regulations regarding the reservation of access to the EVCS, the frequency of use, minimum and/or maximum usage rights, the costs for usage, permitted hours of use and the maintenance responsibilities attributable to usage. (b) As a condition of use of the Common EVCS, any such user must maintain a liability coverage policy in the amount of one million dollars ($1,000,000), and shall name the Shared Facilities Element Owner and Shared Facilities Manager as named additional insureds under the policy with a right of not less than ten (10)days' prior written notice of cancellation. (c) Each Owner using the Common EVCS shall be deemed to have agreed,for such Owner, and such Owner's heirs, personal representatives, successors and assigns, as appropriate, to hold the Declarant, Declarant's Affiliates, Shared Facilities Element Owner and Shared Facilities Manager harmless from and to indemnify them against any liability or damage to The Properties, and/or from damages to any persons or personal property resulting from,connected with, or relating to, directly or indirectly, the Owner's use of the Common EVCS, or the use of the Common EVCS by such Owner's tenant, guest,invitee or other person utilizing same by,through or under the Owner. Declaration of Covenants -39- Page 1008 of 2461 (Reserved for Cferk of Court) (d) All costs of operation, maintenance, repair and replacement of the Common EVCS, other than utility consumption charges, shall be deemed to be Shared Facilities Costs. (e) The Shared Facilities Manager shall have sole discretion whether to implement a pay per use method with regard to utility consumption costs incurred in connection with use of the Common EVCS. In the absence of such a pay per use policy, the utility consumption charges shall be Shared Facilities Costs. To the extent that utility consumption charges can be monitored on a per use basis, said charges shall be assessed to the Owner utilizing same (whether such use is by the Owner, or his or her guest, tenant or invitee)for the costs of such utility consumption measured and paid for in direct relation to the consumption identified. Such charges may be enforced and shall be collectible by the Shared Facilities Manager in the same manner as other Shared Facilities Costs. 7. CERTAIN USE RESTRICTIONS 7.1 Applicability. The provisions of this Article 7 shall be applicable to all of The Properties but shall not be applicable to Declarant, the Shared Facilities Element,Owner, Shared Facilities Manager or any of its or their designees or to Elements or other property owned by Declarant,the Shared Facilities Element Owner or its or their designees. 7.2 Uses of Elements and Structures. All Elements and Structures shall be used for the general purposes for which they are designed and intended and at all times used, operated and maintained in accordance with applicable zoning and other Legal Requirements, and any conditions and restrictions applicable to same (including, without limitation,any contained in the Project Encumbrances or a deed or lease of the Element/Structure from Declarant, as same may be amended from time to time). Notwithstanding anything herein contained to the contrary, the name of the Element is assigned only for convenience of reference, and is not intended, nor shall it be deemed to limit or otherwise restrict,the permitted uses thereof. 7.3 Utilities. Use of the Shared Facilities for utilities, as well as use of the other utility easements affecting The Properties as shown on relevant plats or by separate recorded instruments, shall be in accordance with the applicable provisions of this Declaration and said plats or recorded instruments. Notwithstanding anything herein to the contrary, access to and use of FPL Vault Rooms within The Properties shall be subject to any and all limitations, restrictions or requirements of Florida Power & Light Company (and its successors and assigns) pursuant to any recorded instruments, policies of the utility company or otherwise. Declaration of Covenants, -40- Page 1009 of 2461 Y (Reserved for Clerk of Court) 7.4 Nuisances and Noise. Nothing shall be done or maintained on any Element which may be or become an annoyance or nuisance to the occupants of other Elements,and no use or operation will be made, conducted or permitted on any part of The Properties which use or operation is clearly incompatible or inimical to the)development or operation of Three Hundred Alton in accordance with the Project Standard. Included among the uses which are so incompatible or inimical are uses or operations which consist of the following uses or which produce or are accompanied by the following characteristics, which list is not intended to be all inclusive: (a) motor vehicle service,fuel or gas stations (electric car charging stations shall be permitted), motor vehicle repairs including without limitation any body and fender repair work, car washes, or the displaying, renting, leasing, or sale of any automobile,truck, boat,trailer or other motor or recreational vehicle that is not entirely conducted inside of a building; (b) a venture whose primary business is operation of video or arcade games; (c) adult book or video store; (d) warehouse or industrial use; (e) self-storage facility; (f) any use with a drive-through other than (A) a coffee shop (e.g., Starbucks or Caribou Coffee), (B) banking facilities (provided that this shall not prohibit a banking operation within a retail establishment operating in more than 10,000 square feet), (C)cleaners, if otherwise permitted herein, or pharmacies(such as CVS or Walgreens; provided, however, that this shall not prohibit an in-store pharmacy within a retail establishment operating in more than 10,000 square feet); (g) fast food restaurant (e.g. McDonald's, provided that this shall not prohibit a healthy fast-casual restaurant operation within a retail establishment operating in more than 10,000 square feet,e.g. Blaze Pizza and Jugo Fresh); (h) convenience store, other than a convenience or sundry store within the Commercial Element; (i) establishment for the sale of guns or other firearms,except by a sporting goods retailer that sells firearms as an ancillary use; (j} tattoo or piercing parlor; Declaration of Covenants -41- Page 1010 of 2461 (Reserved for Clerk of Court) (k) so-called "head shops," which are defined as facilities primarily used for selling products intended to assist, aid,or used in conjunction with the consumption of illegal drugs; (I) sale or provision of marijuana, whether for therapeutic, medicinal or other purposes(other than dispensed by a licensed pharmacist); (m) any obnoxious odor except customary odors emanating from restaurants; (n) any fire, explosion or other damaging or dangerous hazard, including the storage, display, or sale of explosives or fireworks (other than incidental sales thereof by a retail establishment operating in more than 20,000 square feet); (o) any distillation (other than so-called micro-brewing of beer), refining, smelting, agriculture or mining operations; (p) any mobile home or trailer court, labor camp, junk yard, stock yard or animal raising; provided, however, that, notwithstanding the foregoing, pet shops shall be permitted; (q) any drilling for and/or removal of subsurface substances; (r) any dumping of garbage or refuse, other than in enclosed receptacles intended for such purpose; (s) any cemetery,mortuary or similar service establishment; (t) any fire sale, bankruptcy sale (unless pursuant to a court order) or auction operation; (u) any church,synagogue,mosque or other place of worship or other religious use; (v) any venture whose primary business is on-site entertainment, recreation or amusement uses for the general public,whether directed to children or adults, including, but not limited to, any one or more of the following: movie theatre, skating rink, bowling alley, teenage discotheque, discotheque, dance hall, video game parlor, pool room, massage parlor or the provision of therapeutic massages, off-track betting facility, casino, card club, bingo parlor, facility containing gaming or gambling equipment, planned play environment, arcade • games, amusement gallery, rides, video or redemption games, play for fun casino games, gold simulations, rodeo simulations, other sport simulations and carnival activities; Declaration of Covenants -42- Page 1011 of 2461 (Reserved for Clerk of Court) (w) any school, training, or educational facility, including but not limited to: beauty - schools, barber colleges, nursery schools, diet centers, reading rooms, places of instruction or other operations catering primarily to students or trainees rather than to customers; provided, however,this prohibition shall not be applicable to on-site employee training by an occupant incidental to the conduct of its business, a learning'center for children and teenagers such as Sylvan Learning Center, any school affiliated with an accredited public university, college, or junior college in the State of Florida,or a day care facility; (x) any dry cleaning facilities utilizing hazardous substances with an on-premises plant; provided, however, that nothing contained herein shall preclude a drop- off/pick-up dry cleaning business as long as no cleaning services are conducted at such location; (y) warehousing or storage facilities of any kind unless incidental to another use permitted on The Properties; (z) call center or similar use other than in connection with a sub-station for police, fire,security and life-safety purposes; (aa) use or occupancy of a Structure by a discount or reduced-price general or specialty retailer or merchandiser, including, but not limited to, Wal-Mart, Costco, K-Mart, Sam's Club, T. J. Maxx, or Marshall's, provided, however, that Target shall not be prohibited;and (bb) a hospital and/or an urgent care medical facility. Any activity on an Element which interferes with television, cable or radio reception on another Element shall also be deemed a nuisance and a prohibited activity. In the event of a dispute or question as to what may be or become a nuisance or otherwise a violation hereof, such dispute or question shall be submitted to Shared Facilities Manager, who shall render a decision in writing, which decision shall be dispositive of such dispute or question. Notwithstanding anything herein contained to the contrary, each Owner, by acceptance of a deed or other conveyance of any portion of The Properties,shall be deemed to understand and agree that Three Hundred Alton (and the Elements within it) is an active urban environment that will likely attract a broad and diverse base from among the public. It is hereby confirmed generally that any and ail activities typical of such an urban environment or in any way related to any and all such operations, including any associated noise, traffic congestion and/or other inconveniences, shall not be deemed a nuisance hereunder. There are a number of existing buildings and potential building sites that are contemplated nearby to, Three Hundred Alton. As such, Owners and their Permitted Users will be affected by Declaration of Covenants -43- Page 1012 of 2461 (Reserved for Clerk of Court) construction noise during the construction of Three Hundred Alton and/or other noise that exists in urban environments(including, but not limited to,vehicle and traffic noise (including loading and unloading of trucks), construction noise from other buildings or building sites, sirens and horns, noise from restaurants and clubs, festivals or other gatherings, loud music, mechanical noise from the Structures within or neighboring The Properties), and/ or aircraft noise). Other operations at or near The Properties, including without limitation, the operations from the commercial marina adjacent to The Properties, may result in the creation of noise, odors, night lighting and other potential disruptions, which may affect all portions of The Properties and the use and enjoyment of same. By acquiring any portion of The Properties, each Owner, for such Owner and its Tenants and other Permitted Users, and its and their successors and/or assigns, agrees (i) that none of the foregoing noises, odors, lights, disruptions or operations during the day or at night shall be deemed a nuisance hereunder, (ii) not to object to any of the foregoing noises, odors, lights, disruptions or operations or any other operations,and(iii)to release Declarant, Shared Facilities Manager and the owner and/or operator of the nearby marina from any and all claims for damages, liabilities and/or losses suffered as a result of the existence of the operations from the various Elements and/or properties adjacent thereto, including, without limitation, the marina, and the noises,inconveniences and disruption resulting therefrom. 7.5 Parking and Vehicular Restrictions. Parking in or on the Shared Facilities shall be restricted to the parking areas therein designated for such purpose(if any). Except only as may be expressly permitted by Shared Facilities Manager, no person shall park,store or keep on any portion of the Shared Facilities any large commercial type vehicle (for example, dump truck, motor home,trailer, cement mixer truck, oil or gas truck, delivery truck), nor may any person keep any other vehicle on the Shared Facilities which is deemed to be a nuisance by Shared Facilities Manager. No trailer,camper, motor home or recreation vehicle shall be used as a residence, either temporarily or permanently, or parked on the Shared Facilities. Except only as may be expressly permitted by Shared Facilities Manager, no person shall conduct major repairs (except in an emergency) or major restorations of any motor vehicle, boat, trailer, or other vehicle upon any portion of the Shared Facilities. All vehicles will be subject to height, width and length restrictions and other rules and regulations now or hereafter adopted by Shared Facilities Manager. 7.6 Master Life Safety Systems. No Owner shall make any additions, alterations or improvements to the Master Life Safety Systems, and/or to any other,portion of The Properties which may impair the Master Life Safety Systems or access to the Master Life Safety Systems, without first receiving the prior written approval of Shared Facilities Manager. In that regard, no lock, chain or other device or combination thereof shall be installed or maintained at any time on or in connection with any door on which panic hardware or fire exit hardware is required. Stairwell identification and emergency Declaration of Covenants -44- Page 1013 of 2461 (Reserved for Clerk of Court) signage shall not be altered or removed by any Owner or Unit Owner whatsoever. No barrier including, but not limited to, personalty, shall impede the free movement of ingress and egress to and from all emergency ingress and egress passageways. 7.7 Signs. Subject to the terms of Section 3.7, no sign, poster, display, billboard or other advertising device of any kind shall be displayed to the public view on any portion of the Shared Facilities without the prior written consent of Shared Facilities Manager, except signs, regardless of size, used by Declarant, its successors or assigns, for advertising during the construction,sale and leasing period. 7.8 Animal Restriction. Except for service animals permitted by applicable law or other pets to the extent reasonably allowed by an Element Owner on its respective Element and customarily permitted at developments comparable to Three Hundred Alton, no pets, livestock, reptiles or poultry of any kind shall be raised, bred, or kept on or in any portion of The Properties. Domesticated dogs and/or cats may be maintained on The Properties provided such pets: (a) are permitted to be so kept by applicable Legal Requirements, (b) are not left unattended on balconies, terraces or in lanai areas, (c) generally, are not a nuisance to residents of other Elements or of neighboring buildings and (d) are not a breed considered to be dangerous by Shared Facilities Manager, in its sole discretion; provided, however, that (i) Shared Facilities Manager shall not be liable for any personal injury, death or property damage resulting from a violation of the foregoing or the existence of pets on The Properties in general, (ii) any Owner or occupant who keeps or maintains a pet within The Properties shall fully indemnify and hold harmless Shared Facilities Manager, Declarant and all other Owners, from and against any and all Losses whatsoever arising by reason of keeping or maintaining such pet within The Properties, and (iii) pets (including domesticated dogs and/or cats) may not be maintained on any Element if precluded by the Owner of such Element or any Element Specific Declarations (or any rules and regulations promulgated thereunder). Any landscaping damage or other damage to the Shared Facilities or any other portion of The Properties caused by a pet must be promptly repaired by the pet's owner. Shared Facilities Manager retains the right to effect said repairs and charge the owner therefor.Any Element Owner that allows pets shall continue to operate its Element in a manner that is consistent with the Project Standards, all applicable Legal Requirements and the standards of comparable operations that are "pet friendly". Any Element Owner may establish additional rules, regulations and restrictions with respect to animals within its Element,subject to applicable Legal Requirements. 7.9 Trash. No rubbish,trash, garbage or other waste material shall be kept or permitted on the Shared Facilities, except in those areas expressly designed for same or as otherwise approved by Shared Facilities Manager, and no odor shall be permitted to arise therefrom so as to render the Shared Facilities or any portion thereof unsanitary, unsightly, offensive or detrimental to any other property in the vicinity thereof or to its Declaration of Covenants -45- Page 1014 of 2461 (Reserved for Clerk of Court) occupants. Rubbish, trash, garbage or other waste materials within the Elements shall be maintained in secure areas not visible to the public.Trash receptacles located in the public areas of any Element intended for public use shall be kept and maintained in a neat, clean and sanitary condition, and shall be emptied as often as necessary to prevent same from becoming unsightly and/or emitting unpleasant odors. No lumber, grass, shrub or tree clippings or plant waste, metals, bulk material or scrap or refuse or trash shall be kept, except within an enclosed structure appropriately screened from view erected for that purpose, if any, and otherwise in accordance with the approval of Shared Facilities Manager. All Owners and Tenants shall segregate and save for collection all recyclable refuse if required by (and in accordance with) Legal Requirements. 7.10 Temporary Structures. Except as may be used or permitted by Declarant or Shared Facilities Manager during periods of construction or renovation, no structure of a temporary nature (including, without limitation, trailers, tents, shacks or mobile homes or offices)shall be located or used within The Properties. 7.11 Post Tension Restrictions. Notwithstanding anything herein contained to the contrary, inasmuch as the improvements constructed within The Properties have utilized post tension cables and/or rods,absolutely no penetration shall be made to any floor, roof or ceiling slabs without the prior written consent of Shared Facilities Manager and review of the as-built plans and specifications for such improvements to confirm the approximate location of the post tension cables and/or rods. -The plans and specifications for such improvements shall be maintained by Shared Facilities Manager. Each Owner, by accepting a deed or otherwise acquiring title to an Element or Unit shall be deemed to: (i) have assumed the risks associated with post tension construction, and (ii) agree that the penetration of any post tension cables and/or rods may threaten the structural integrity of the improvements. Each Owner hereby releases Shared Facilities Manager, Shared Facilities Owner and Declarant, its and their partners, contractors, architects, engineers, and its and their officers, directors, shareholders, employees and agents, from and against any and all liability that may result from penetration of any of the post tension cables and/or rods. 7.12 Hurricane Evacuation Procedures. Upon notice of approaching hurricanes, all furniture, plants and other movable objects must be removed from any sidewalks, balconies, terraces and/or other outdoor areas. IN THE EVENT THAT AN EVACUATION ORDER IS ISSUED BY ANY APPLICABLE GOVERNMENTAL AGENCY, ALL OWNERS MUST PROMPTLY COMPLY WITH SAID ORDER. Shared Facilities Manager shall have the right from time to time to establish hurricane preparedness and evacuation policies, and each Owner shall fully comply with same (and shall cause its Tenants and other Permitted Users to do so as well). Declaration of Covenants -46- Page 1015 of 2461 (Reserved for Clerk of Court) 7.13 Additional Restrictions. Shared Facilities Manager may from time to time impose additional restrictions on The Properties or any portion thereof by Supplemental Declaration executed by Shared Facilities Manager without the consent or joinder of any person or entity (other than Declarant's Mortgagee and the Owner(s) of the encumbered property if other than Declarant), whereupon such additional restrictions shall encumber and be binding upon the portions of The Properties stated therein. 7.14 Variances. Shared Facilities Manager shall have the right and power to grant variances from the provisions of this Article 7 and from Shared Facilities Manager's rules and regulations for good cause shown, as determined in the reasonable discretion of Shared Facilities Manager. Grounds for granting a variance may include, without limitation, changes in circumstances, Legal Requirements, other construction or uses on The Properties or nearby land, or bona fide good faith error in submission or review of documents or materials. In considering requests for variances,Shared Facilities Manager may take into account the pattern of development,consistency in treatment of requests for variances, and the relationship between the cost to the Owner of the variance not being granted and the importance of the covenant from which a variance is being sought. Shared Facilities Manager may require the submission of such documents and items(including,without limitation,written request for and a detailed description of the variance requested), as it reasonably considers appropriate, in connection with its consideration of a request for a variance. If Shared Facilities Manager approves such request for a variance, Shared Facilities Manager shall evidence such approval, and grant its permission for such variance, only by written instrument, addressed to the Owner of the portion of The Properties relative to which such variance has been requested, describing the applicable covenant(s)and the particular variance requested, expressing the decision of Shared Facilities Manager to permit the variance, describing (when applicable) the conditions (which may be affirmative and/or negative in nature) on which the variance has been approved signed by Shared Facilities Manager. Any request for a variance will be considered disapproved for the purposes hereof in the event of either (a) written notice of disapproval from Shared Facilities Manager; or (b) failure by Shared Facilities Manager to respond to the request for variance within thirty (30) days following its submission. Any variance granted or denied by Shared Facilities Manager shall not preclude Shared Facilities Manager from granting or denying a variance in any other circumstance, and no variance granted as aforesaid shall alter, waive or impair the operation or effect of the provisions of this Article 7 in any instance in which such variance is not granted, nor shall same alter, waive or impair the operation or effect of any restrictions, requirements or provisions contained in any Project Encumbrances then in effect (which shall remain in full force and effect unless and until a waiver or variance is granted in accordance with the provisions thereof). Shared Facilities Manager shall not be liable to any Owner, Permitted User or any other party with regard to any variance granted hereunder, nor shall Shared Facilities Declaration of Covenants -47- Page 1016 of 2461 (Reserved for Clerk of Court) Manager be responsible for the failure of any Owner, Permitted User or any other party to comply with the provisions of this Article 7. 7.15 Declarant Exemption. In order that the development of The Properties may be undertaken and The Properties established as a fully occupied community, no Owner, nor any Element Specific Manager shall do anything to interfere with Declarant's activities. Without limiting the generality of the foregoing, nothing in this Declaration shall be understood or construed to: (a) Prevent Declarant, its successors or assigns, or its or their contractors or subcontractors, from doing on any property owned by them whatever they determine to be necessary or advisable in connection with the completion of the development of The Properties, including without limitation, the alteration of its construction plans and designs as Declarant deems advisable in the course of development and/or enlargement(and in that regard, all models or sketches showing plans for development of The Properties, as same may be expanded, may be modified by Declarant at any time and from time to time, without notice);or (b) Prevent Declarant, its successors or assigns, or its or their contractors, subcontractors or representatives, from erecting, constructing and maintaining on any property owned or controlled by Declarant, or its successors or assigns or its or their contractors or subcontractors, such structures as may be reasonably necessary for the conduct of its or their business of completing said development and establishing The Properties as a community and disposing of the same by sale,lease or otherwise;or (c) Prevent Declarant, its successors or assigns, or its or their contractors or subcontractors, from conducting on any property owned or controlled by Declarant, or its successors or assigns, its or their business of developing, subdividing, grading and constructing improvements in The Properties and of disposing of Elements and/or Structures therein by sale,lease or otherwise;or (d) Prevent Declarant, its successors or assigns, from determining in its sole discretion the nature of any type of improvements to be initially constructed as part of The Properties; or (e) Prevent Declarant, its successors or assigns or its or their contractors or subcontractors, from maintaining such sign or signs on any property owned or controlled by any of them as may be necessary in connection with the operation of any Elements owned by Declarant(its successors or assigns)or the sale,lease Declaration of Covenants -48- Page 1017 of 2461 (Reserved for Clerk of Court) or other marketing of Elements and/or Structures, or otherwise from taking such other actions deemed appropriate;or (f) Prevent Declarant, or its successors or assigns from filing Supplemental Declarations which modify or amend this Declaration,or which add or withdraw additional property as otherwise provided in this Declaration;or (g) Prevent Declarant from subdividing any Element owned by it into more than one Element, or submitting any Element(s) owned by it (or any Element(s) created by such subdivision) and/or any improvements within any such Element(s) to the condominium or cooperative or other collective form of ownership;or (h) Prevent Declarant from modifying, changing, re-configuring, removing or otherwise altering any improvements located within The Properties. In general, Declarant shall be exempt from all restrictions set forth in this Declaration to the extent such restrictions interfere in any matter with Declarant's plans for construction, development, use, sale or other disposition of The Properties or any part thereof. 8. SHARED FACILITIES MANAGER AND ELEMENT SPECIFIC MANAGERS 8.1 Preamble. In order to ensure the orderly development, operation and maintenance of The Properties as a unified project, including the Elements subject to the administration of Element Specific Managers as integrated parts of The Properties,this Article has been promulgated for the purposes of(a) giving Shared Facilities Manager certain powers to effectuate such goal, (b) providing for intended (but not guaranteed) economies of scale, (c) establishing the framework of the mechanism through which the foregoing ,may be accomplished, and (d) requiring special types of covenants to accurately reflect the maintenance and use of Elements where certain types of improvements are constructed within The Properties. Nothing contained herein shall necessarily suggest that Declarant will or will not, in fact, construct particular types of improvements nor shall anything herein contained be deemed an obligation to do so. 8.2 Cumulative Effect; Conflict. The covenants, restrictions and provisions of this Declaration shall be cumulative with those of the Element Specific Declarations for Submitted Elements and Shared Facilities Manager may, but shall not be required to, enforce the latter; provided, however, that in the event of conflict between or among this Declaration and such Element Specific Declarations, or any articles of incorporation, bylaws, rules and regulations, policies or practices adopted or carried out pursuant thereto, those of the Element Specific Declarations shall be subject and subordinate to Declaration of Covenants -49- Page 1018 of 2461 (Reserved for Clerk of Court) this Declaration. The priority of this Declaration shall apply to, but not be limited to,the payment of and liens for assessments created in favor of Shared Facilities Manager and the Element Specific Managers as provided for herein. As to any Element Specific Manager which is a condominium association, no duties of same hereunder shall be performed or assumed by Shared Facilities Manager if same are required by Legal Requirements to be performed by the Element Specific Manager. 8.3 Compliance with Declaration. Each Element Specific Manager shall: (a) include in its annual budget an aggregate annual amount sufficient to pay its allocated share of Shared Facilities Costs under this Declaration as common expenses, and levy regular and special assessments against the Units in the Submitted Element sufficient to pay as and when due such aggregate annual amount of common expenses owed by it under this Declaration; (b) levy special assessments against the Units in the Submitted Element sufficient to cover any other monetary obligation of the Element Specific Manager under this Declaration, including without limitation payment obligations under any indemnities, the obligation to pay Taxes, the cost of any required maintenance and repairs, the amount of any shortfall in insurance proceeds from a casualty or the award from a condemnation, reimbursement obligations after a default by the Element Specific Manager or Submitted Element and the like; (c) comply with each and every obligation under this Declaration applicable to the Owner of its Element;and (d) cause each Unit Owner to comply with the terms and conditions of this Declaration and the applicable Element Specific Declaration Ito the extent not in conflict with the terms hereof), and take any and all action available to such Element Specific Manager under such Element Specific Declaration, at law and in equity (including without limitation an action for specific performance and seeking injunctive relief)to ensure that each such Unit Owner complies with the terms and conditions of this Declaration and such Element Specific Declaration (to the extent not in conflict with the terms hereof). 8.4 Collection of Assessments; Payment Priority. The Element Specific Managers shall, initially, collect all assessments and other sums due Shared Facilities Manager and the applicable Element Specific Manager from the Unit Owners and/or other members of the Submitted Element. The Element Specific Manager will remit the assessments so collected to the respective payees pursuant to such procedures as may be adopted by Shared Facilities Manager. The sums so collected shall be applied first to the Assessments of Shared Facilities Manager and then to the assessments of the collecting Declaration of Covenants -50- Page 1019 of 2461 (Reserved for Clerk of Court) Element Specific Manager. For the avoidance of doubt, any sums collected by an Element Specific Manager shall be applied in the foregoing order of priority irrespective of any other obligations or liabilities whatsoever of the Element Specific Manager. Subject to the priority of disbursements of collected lump sums as provided above, all regular and special assessments, interest,late charges, recovered costs of collection and other extraordinary impositions shall be remitted to the respective entity imposing same separate and apart from the priorities established above. All fidelity bonds and insurance maintained by an Element Specific Manager shall reflect any duties performed by it pursuant hereto and the amounts to be received and disbursed by it and shall name Shared Facilities Manager as an obligee/insured party for so long as its Assessments are being collected and remitted by the Element Specific Manager. Shared Facilities Manager may, from time to time by sixty(60) days' prior written notice to the affected Element Specific Manager(s), change the procedures set forth in this Section 8.4 in whole or in part. In the event of any change in Assessment collection procedures elected to be made by Shared Facilities Manager, the relative priorities of assessment remittances and liens (i.e., Shared Facilities Manager first and the applicable Element Specific Manager last) shall nevertheless still remain in effect, as shall Shared Facilities Manager's ability to modify or revoke its elections from time to time. 8.5 Additional Expense Allocations. In addition to the other expenses payable by Element Specific Managers hereunder, Shared Facilities Manager may, by written notice given to the affected Element Specific Manager at least sixty (60) days prior to the end of the Element Specific Manager's fiscal year, allocate and assess to the Element Specific Manager a share of the expenses incurred by the Shared Facilities Element Owner or Shared Facilities Manager (as applicable)which are reasonably allocable to the Element Specific Manager and/or the portion of The Properties within its jurisdiction (e.g., for utilities which are billed to the Shared Facilities Element Owner or Shared Facilities Manager, but serve in certain instances, only a Submitted Element). In such event, the expenses so allocated shall thereafter be deemed common expenses of the Submitted Element payable by the Element Specific Manager(with assessments collected from the Unit Owners and/or other members of the Submitted Element) to Shared Facilities Manager. 8.6 Non-Performance of Element Specific Manager Duties. The following provisions shall apply in the event of non-performance by an Element Specific Manager of its duties hereunder: (a) In the event of a failure of an Element Specific Manager,to comply with any of its obligations hereunder, Shared Facilities Manager shall have the same rights against the Element Specific Manager, any Unit Owners and/or other members of the Submitted Element, and its and their Permitted Users, as are available to Declaration of Covenants -51- Page 1020 of 2461 (Reserved for Clerk of Court) Shared Facilities Manager with respect to other Owners and their Permitted Users under this Declaration, including without limitation Article 9. (b) In the event of a failure of an Element Specific Manager to budget or assess the Unit Owners or other members of the Submitted Element for expenses as provided under Sections 8.3 or 8.5, or to remit to Shared Facilities Manager all amounts collected by it for payment of such Element Specific Manager's Assessments, then, in addition to (and without waiving) any other right or remedy available to Shared Facilities Manager under this Declaration, at law or in equity, Shared Facilities Manager shall be entitled to pursue and specially assess the Unit Owners or other members of the Element Specific Manager and their Units directly for the sums due (such special assessments, as all others,to be secured by the lien provided for in this Declaration). (c) In addition to the foregoing, and subject to the limitations set forth in Section 8_2 of this Declaration, in the event that any Element Specific Manager fails to perform any duties delegated to, or required of, it under this Declaration, or to otherwise be performed by it pursuant to its own Element Specific Declaration, articles of incorporation, by-laws or related documents,which,in the case of the Element Specific Declaration (or related governing documents), constitutes a breach by the Element Specific Manager of its duties under this Declaration,and such failure continues for a period in excess of thirty (30) days after Shared Facilities Manager's giving notice thereof, then Shared Facilities Manager may, but shall not be required to, assume such duties. In such event, the Element Specific Manager shall not perform such duties unless and until such time as Shared Facilities Manager directs it to once again do so. Alternatively, Shared Facilities Manager may apply for the appointment of a receiver in accordance with Legal Requirements to take control of the responsibilities of the Element Specific Manager, and Shared Facilities Manager shall be entitled to the appointment of such a receiver as a matter of right, who shall perform the obligations of the Element Specific Manager under this Declaration and the Element Specific Declaration as necessary to comply with the terms hereof. In, such event, the receiver shall have all rights and powers permitted under the laws of the State of Florida and any other applicable Legal Requirements, subject to the approval of the court in any receivership proceeding. (d) Shared Facilities Manager shall be entitled to inspect the books and records of any Element Specific Manager, including without limitation ownership and financial records, as necessary or desirable to exercise and/or enforce its rights under this Section 8.6. Declaration of Covenants -52- Page 1021 of 2461 (Reserved for Clerk of Court 8.7 General Provisions Regarding Submitted Elements. The following general provisions shall apply to Submitted Elements: (a) As provided in Section 1.1 of this Declaration,a single Element or Structure shall not lose its character as such for the purposes of this Declaration by virtue of being subdivided into condominium, cooperative or other collective ownership Units by an Element Specific Declaration. As also provided in Section 1.1, the Element Specific Manager for an Element/Structure submitted to such form of ownership shall be deemed to be the Owner of such Submitted Element, even though same may not actually be the owner of the Element/Structure (or any portion thereof). Notwithstanding the fact that the Element Specific Manager of a Submitted Element shall be deemed to be the Owner of such Submitted Element, the easements of use and enjoyment granted hereunder to Owners shall be deemed to also be granted to the constituent members of the Submitted Element and the owners of the various portions of the applicable Submitted Element (and their Tenants and other Permitted Users as and to the extent permitted under this Declaration and the Element Specific Declaration governing the Submitted Element). (b) For the purposes of complying with and enforcing the standards of maintenance contained herein, the building comprising the Submitted Element shall be treated as a Structure, with the Element Specific Manager to have the maintenance duties of an Owner with respect to such Structure and any appurtenant facilities as set forth herein. (c) Each Element Specific Manager shall be jointly and severally liable with the Unit Owners in its Element for any violation of the use restrictions set forth in this Declaration or of rules and regulations of Shared Facilities Manager. Each Element Specific Manager shall also be liable and responsible for its compliance and the compliance by the Unit Owners in its Submitted Element (and its and their Permitted Users)with the covenants, restrictions and requirements of this Declaration. Accordingly, while Shared Facilities Manager shall have the right (exercisable at its sole option) to proceed against each Unit Owner for a violation of this Declaration,it shall also have a direct right to do so against the Element Specific Manager (even if the violation is not caused by the Element Specific Manager or by all of the Unit Owners). (d) With respect to a Submitted Element that is a condominium,assessments levied hereunder against such Submitted Element shall be but a single lien on the entirety of such Element and shall be payable by the Owner thereof (i.e., the Element Specific Manager therefor), but same shall not be deemed to be a common expense of such condominium. Notwithstanding the provisions of Declaration of Covenants -53- Page 1022 of 2461 (Reserved for Clerk of Court) 718.121(3) of the Florida Statutes, inasmuch as this Declaration and the lien created hereby shall be recorded prior to the recording of any relevant Element Specific Declaration, it is intended that 718.121(1) of the Florida Statutes shall not be operative as to such lien and each applicable Unit Owner of a Submitted Element that is a condominium shall be deemed to have ratified and confirmed same by the acceptance of the deed to such Unit. 8.8 Multiple Element Specific Declarations. To the extent that any portion of The Properties is subject to more than one Element Specific Declaration, the rights of Shared Facilities Manager hereunder shall be cumulative and shall apply with respect to all Element Specific Managers under such Element Specific Declarations. 8.9 Element Subjected to a Long-Term Lease. To the extent that any portion of The Properties is subjected to a Long-Term Lease, then, the following provisions shall be applicable for as long as the Long-Term Lease remains in effect: (a) Except only as otherwise provided or when the context otherwise requires, the tenant under the Long-Term Lease for an Element or other portion of The Properties shall be deemed to be the Owner of the property subjected to the Long-Term Lease, even though same may not actually be the fee owner of the property subjected to the Long-Term Lease. (b) Notwithstanding anything to the contrary, any and all notices hereunder asserting a default, delinquency or violation of the terms of this Declaration required to be given to the Owner of an Element governed by a Long-Term Lease must be given simultaneously to the tenant and landlord under the applicable Long-Term Lease. (c) To the extent that the Shared Facilities, or any portion thereof, is subjected to a Long-Term Lease, in no event shall the rents or other charges imposed thereunder be deemed part of the Shared Facilities Costs. (d) To the extent that any portion of The Properties is simultaneously subjected to multiple Long-Term Leases(e.g.,a ground lease and a sublease),then as to such overlapping portions of The Properties, the sublessee/subtenant shall be deemed the Owner of the applicable portion(s) rather than the lessee/tenant. 9. COMPLIANCE AND ENFORCEMENT 9.1 Compliance by Owners. Every Owner and its Tenants and Permitted Users shall comply with the restrictions and covenants set forth herein and any and all rules and Declaration of Covenants -54- Page 1023 of 2461 (Reserved for Clerk of Court) regulations which from time to time may be adopted by Shared Facilities Manager(as to the Project Facilities or with respect to Three Hundred Alton). 9.2 Enforcement. Failure of an Owner and its Tenants and/or other Permitted Users to comply with such restrictions, covenants or rules and regulations shall be grounds for immediate action which may include,without limitation, an action to recover sums due for damages, an action for specific performance or seeking injunctive relief, or any combination thereof. Following such breach, Shared Facilities Manager shall have the right to suspend such Owner's (and its Tenants'and/or other Permitted Users') rights of use of Project Facilities; provided, however, that no Owner shall be denied (i) legal pedestrian access to and from the Owner's Element and/or Units, as applicable, or (ii) use of any utility and/or mechanical, electrical, HVAC, plumbing, life safety, monitoring, information and/or other systems located in the Shared Facilities or the Element Exclusive Facilities and serving said Owner's Element and/or Unit, as applicable, or (iii) the use and benefit of the easements of support granted herein (without otherwise providing equivalent substitutions for same). The offending Owner (whether such offense be caused by the Owner, a Unit Owner or its or their Permitted Users) shall be responsible for all costs of enforcement including attorneys' fees actually incurred and court costs (and including fees incurred in bankruptcy or probate proceedings, if applicable,and through any applicable appeals). 9.3 Fines. In addition to all other remedies, and to the maximum extent lawful, in the sole discretion of the Shared Facilities Manager, a fine or fines may be imposed upon an Owner for failure of an Owner, a Unit Owner or their respective Tenants and/or other Permitted Users to comply with any covenant, restriction, rule or regulation applicable to the Project Facilities, if such failure continues for a period in excess of five (5) business days after giving notice thereof to such Owner. In such event, the Shared Facilities Manager may impose a fine, relating back to the initial date of the breach, in the amount of$250.00/day from the initial occurrence of the breach for the first breach and $500.00/day from the initial occurrence of the subsequent breach for each subsequent breach; subject, however, to (and in all cases not to exceed) the maximum limits permitted by law from time to time. Fines shall be paid not later than five (5) days after notice of the imposition or assessment of the penalties. Fines shall be treated as an Assessment subject to the provisions for the collection of Assessments, and the lien securing same, as set forth herein. All monies received from fines shall be allocated as directed by the Shared Facilities Manager. The foregoing fines shall not be construed to be exclusive, and shall exist in addition to all other rights and remedies to which the Shared Facilities Manager may be otherwise entitled under this Declaration, at law or in equity; provided, however, any penalty paid by the offending Owner shall be deducted from or offset against any damages which the Shared Facilities Manager may otherwise be entitled to recover under applicable Legal Requirements from such Owner. Declaration of Covenants -55- Page 1024 of 2461 (Reserved for Clerk of Court) 9.4 Remedies Cumulative. The rights and remedies set forth in this Article are in addition to any and all rights and remedies available at law, in equity and/or permitted under any other provision of this Declaration, all of which are intended to be, and shall be, cumulative. 10. MORTGAGEE PROTECTION 10.1 Mortgagee Protection. The following provisions are added hereto (and to the extent these added provisions conflict with any other provisions of the Declaration, these added provisions shall control): (a) Shared Facilities Manager shall be required to make available to all Owners and the holder of any mortgage (a "Mortgage")on any Element, and to insurers and guarantors of any such Mortgage, for inspection, upon written request, during normal business hours or under other reasonable circumstances, current copies of this Declaration(with all amendments). (b) Any holder, insurer or guarantor of a Mortgage on an Element shall be entitled, upon written request,to receive notice from Shared Facilities Manager of(i) an alleged material default by the Owner of such Element in the performance of such Owner's obligations under this Declaration,including without limitation the failure to pay Assessments on such mortgaged Element, which default is not cured within sixty (60) days after Shared Facilities Manager has actual knowledge of such default, (ii) any condemnation or casualty loss affecting a substantial portion of the Shared Facilities, (iii) the occurrence of a lapse, cancellation or substantial modification of any insurance policy or fidelity bond maintained by Shared Facilities Manager, and (iv) any proposed action which requires the consent of a specified number of Mortgage holders,if any. (c) Any holder, insurer or guarantor of a Mortgage on an Element shalt have the right (but not the obligation)to pay Assessments and/or other charges that are delinquent and have resulted or may result in a lien against any portion of such Element and receive reimbursement from its mortgagor. (d) Subject to the terms of the applicable Mortgage and related documents (and to the extent permitted by Legal Requirements), any holder, insurer or guarantor of a Mortgage on an Element that is a Taxed Element shall have the right (but not the obligation) to pay the portion of Taxes and/or other Tax-related costs allocated to such Element and/or the other Taxes that are delinquent and have resulted or may result in a lien against such Element and, in any such case, receive reimbursement from its mortgagor and/or the Owners of the other Declaration of Covenants -56- Page 1025 of 2461 (Reserved for Clerk of Court) Taxed Elements (as applicable)to the extent any of such parties fail to pay same as and when required herein. (e) Subject to the terms of the applicable Mortgage and related documents (and to the extent permitted by Legal Requirements), any holder, insurer or guarantor of a Mortgage on an Element shall have'the right (but not the obligation) to procure the insurance required of the Owner of such Element under this Declaration and to perform such Owner's maintenance and other obligations hereunder, and to receive reimbursement of costs incurred in connection therewith from its mortgagor. (f) Any holder, insurer or guarantor of a Mortgage on an Element shall be entitled, upon written request,to estoppel certificates as contemplated by Section 15.10. (g) Each Owner of a Burdened Element agrees to cooperate with any reasonable requests for notice from any holder, insurer or guarantor of a Mortgage on a Benefitted Element with respect to the Element Exclusive Facilities located in such Burdened Element and serving such Benefitted Element, provided that such requests (for notice or otherwise) are comparable to the notices and information required to be provided by Shared Facilities Manager under the foregoing provisions. Nothing contained herein shall limit or restrict the rights and remedies of Shared Facilities Manager under this Declaration in the event of a default by any Owner, Unit Owner or Element Specific Manager. 11. INSURANCE ON SHARED FACILITIES AND ELEMENTS 11.1 Insurance. Insurance obtained pursuant to the requirements of this Article 11 shall be governed by the provisions set forth in this Article. 11.2 Purchase,Custody and Payment. (a) Purchase. All insurance policies required to be obtained by Shared Facilities Manager hereunder shall be issued by an insurance company authorized to do business in Florida or by surplus lines carriers offering policies for properties in Florida, and shall be rated in the latest edition of Best's Insurance Guide (or its successor, and if such guide becomes unavailable, then a comparable rating guide selected by Shared Facilities Manager) not less than A-:VII{ (or its reasonable equivalent). Said policies must otherwise satisfy the requirements of the mortgage held by Declarant's Mortgagee on the date hereof as well as the ongoing insurance requirements under the Project Encumbrances that are Declaration of Covenants -57- Page 1026 of 2461 (Reserved for Clerk of Court) the responsibility of the Shared Facilities Element Owner or Shared Facilities Manager pursuant to the terms thereof or this Declaration. (b) Named Insured. The named insured under the property insurance policies to be maintained by Shared Facilities Manager shall be Shared Facilities Manager, (i) individually (or such designee as may be designated by Shared Facilities Manager), (ii) as agent for the Owners of the Elements covered by the policies, without naming them, and (iii) as agent for the holders of any mortgage on an Element, without naming them, except as otherwise provided herein. The Owners and the holders of any mortgage on any Element (if required by the holder thereof) shall be deemed additional insureds with respect to all liability policies maintained by Shared Facilities Manager. Notwithstanding anything to the contrary contained herein, Declarant's Mortgagee shall be named an additional insured on all liability policies and a loss payee on ail property insurance (including windstorm and flood) policies maintained by Shared Facilities Manager. The foregoing shall not, however, preclude the inclusion by Shared Facilities Manager of others as additional insureds. (c) Custody of Policies and Payment of Proceeds. All policies obtained by Shared Facilities Manager pursuant to this Article 11 shall provide that payments for losses made by the insurer shall be paid to Shared Facilities Manager and Declarant's Mortgagee(if required by Declarant's Mortgagee), as their interests may appear. (d) Copies to Mortgagees. One copy of each insurance policy, or a certificate evidencing such policy, and all endorsements thereto, shall be furnished by the insurer upon request by the policy holder to the holders of any mortgage on an Element or a Unit. Copies or certificates shall be furnished not less than ten (10) days prior to the beginning of the term of the policy, or not less than ten (10) days prior to the expiration of each preceding policy that is being renewed or replaced,as appropriate. (e) Personal Property and Liability. Except as specifically provided herein, Shared Facilities Manager shall not be responsible to Owners to obtain insurance coverage upon the property lying within the boundaries of their respective Elements, including, but not limited to, any Owner's personal property, nor insurance for any Owners' personal liability and expenses, nor for any other risks not otherwise required to be insured in accordance herewith. 11.3 Coverage. Shared Facilities Manager shall maintain insurance covering the following: Declaration of Covenants -58- Page 1027 of 2461 (Reserved for Clerk of Court) (a) Property. The Shared Facilities, together with all fixtures, building service equipment, personal property and supplies constituting the Shared Facilities (collectively the "Insured Property"), shall be insured for the full replacement value thereof to the extent commercially practicable and available at commercially reasonable rates, subject to industry standard exclusions and excluding foundation and excavation costs; provided, however,that Windstorm, Flood, Earthquake and other insurance for extraordinary hazards shall be subject to customary sublimity that are less than full replacement value as may be determined from time to time by the Shared Facilities Manager.The Insured Property shall not include, and shall specifically exclude, any portions of The Properties which are not part of the Shared Facilities, and all furniture, furnishings, floor coverings, wall coverings, ceiling coverings and other interior build-out of the Elements,other personal property owned, supplied or installed by Owners,Tenants or Permitted Users,and all electrical fixtures,appliances, air conditioner and heating equipment and water heaters to the extent not part of the Shared Facilities. Such policies may contain reasonable deductible provisions as determined by Shared Facilities Manager. Such coverage shall afford protection against loss or damage by fire and other hazards covered by an "all-risk" policy form, and such other risks as from time to time are customarily covered with respect to buildings and improvements similar to the Insured Property in construction, location and use, including, but not limited to, vandalism and malicious mischief, subject in all cases to industry standard exclusions. (b) Liability. Commercial general liability and automobile liability insurance covering loss or damage resulting from any legal liability related to the Insured Property, with such coverage as shall be required by the Shared Facilities Manager. (c) Worker's Compensation. Worker's Compensation and other mandatory insurance, when applicable, to the extent applicable to the maintenance, operation, repair or replacement of the Shared Facilities. (d) Windstorm and Flood Insurance. Windstorm and Flood Insurance covering the Insured Property, if so determined by the Shared Facilities Manager, in such amounts (and containing such deductibles) as the Shared Facilities Manager may determine from time to time, subject to industry standard exclusions. (e) Project Encumbrances. Any and all insurance required of the Declarant, Shared Facilities Manager or its or their affiliates pursuant to the Project Encumbrances. Declaration of Covenants -59- Page 1028 of 2461 (Reserved for Clerk of Court) (f) Other Insurance.Such other or greater insurance as is required by the mortgage held by Declarant's Mortgagee as of the date hereof, as well as such other insurance as the Shared Facilities Manager shall determine from time to time to be desirable in connection with the Shared Facilities. When appropriate and obtainable, each of the foregoing policies shall waive the insurer's right to: (i) as to property insurance policies, subrogation against Shared Facilities Manager and against the Owners individually and as a group, (ii) to pay only a fraction of any loss in the event of coinsurance or if other insurance carriers have issued coverage upon the same risk(and the amount of the insurer's liability under such policies shall not be reduced by the existence of any other insurance), and (iii) avoid liability for a loss that is caused by an act of the Shared Facilities Manager or one or more Owners (or any of its or their respective employees, contractors and/or agents) or as a result of contractual undertakings. Additionally, each policy shall provide that the insurance provided shall not be prejudiced by any act or omissions of individual Owners that are not under the control of the Shared Facilities Manager. 11.4 Additional Provisions. All policies of insurance shall provide that such policies may not be canceled or substantially modified without at least thirty (30) days' prior written notice to all of the express named insureds, including their respective mortgagees, provided that only ten (10) days' prior written notice shall be required for cancellation due to nonpayment of premium. Prior to obtaining any policy of property insurance or any renewal thereof, the Shared Facilities Manager may (and, not less than once every thirty-six (36) months, shall)obtain an appraisal from a fire insurance company,or other competent appraiser, of the full insurable replacement value of the applicable Insured Property (exclusive of foundations and excavation costs), without deduction for depreciation, and recommendations from its insurance consultant as to limits/sublimits for such coverage, for the purpose of determining the amount of insurance to be effected pursuant to this Article. Notwithstanding anything contained herein to the contrary, the insurance coverage required of the Shared Facilities Manager pursuant to this Article 11 may be provided through (i) subject to the agreement of the Shared Facilities Manager,with respect to property insurance only, a master policy that covers the Insured Property and property insurance required of the Owners (or any one of them) under this Declaration, provided that the cost of such master policy shall be allocated by the Shared Facilities Manager, with the assistance of Shared Facilities Manager's insurance consultant, between the coverage required of Shared Facilities Manager hereunder and such other coverage of the other Owners, and/or(ii) at Shared Facilities Manager's option, a blanket policy that covers the property and liability insurance set forth above as well as other insurance coverage benefitting Shared Facilities Manager's affiliates, provided that the cost of such blanket policy shall be allocated by the Shared Facilities Manager, with the assistance of Shared Facilities Declaration of Covenants -60- Page 1029 of 2461 (Reserved for Clerk of Court) Manager's insurance consultant, between the coverage required of Shared Facilities Manager hereunder and such other coverage of its affiliates. 11.5 Premiums. Premiums upon insurance policies purchased by the Shared Facilities Manager pursuant to this Article 11 shall be allocated among the Owners in accordance with this Section 11.5 and included among Assessments under this Declaration. Such premiums shall be allocated among and assessed against the Owners (excluding the Shared Facilities Element Owner) by the Shared Facilities Manager, with the assistance of Shared Facilities Manager's insurance consultant, at Shared Facilities Manager's option,based on the relative replacement value that each Owner's Element bears to the total replacement value of all of the Elements (excluding the Shared Facilities Element) or the square footage of the Elements(excluding the Shared Facilities Element) or based on each Element's share of Shared Facilities Costs or a combination thereof, depending on the type of insurance in question. To the extent separate invoices are issued for premiums associated with the Shared Facilities Manager's insurance policies hereunder with respect to any of the Elements, such invoices shall be deemed dispositive and the Owners of such Elements shall be responsible for the portion of the premium reflected in the invoices applicable to it, with the remaining premiums (if any) to be allocated among the remaining Elements not separately invoiced (excluding the Shared Facilities Element), at Shared Facilities Manager's option, consistent with the allocation methods provided above depending on the type of insurance. Any separate invoice for the Shared Facilities Element's share of premiums shall also be allocated among all of the other Elements, at Shared Facilities Manager's option, based on the allocation methods provided above depending on the type of insurance. Premiums may be financed in such manner as the Shared Facilities Manager deems appropriate. Without limiting the terms of this Declaration, Shared Facilities Costs may include, from time to time and at any time, such amounts deemed necessary by Shared Facilities Manager to provide Shared Facilities Manager with sufficient funds to pay insurance premiums at least thirty (30)days before the date the same are due. 11.6 Share of Proceeds. All property insurance policies obtained by or on behalf of the Shared Facilities Manager pursuant to this Article 11 shall be for the benefit of the Shared Facilities Manager, the Owners and the holders of any mortgage on an Element, as their respective interests may appear. The duty of the Shared Facilities Manager shall be to receive such proceeds as are paid and to hold the same for the purposes elsewhere stated herein, and for the benefit of the Owners and the holders of any mortgage on the subject Element(s)(or any leasehold interest therein). 11.7 Distribution of Proceeds. Proceeds of property insurance policies required to be maintained by the Shared Facilities Manager pursuant to this Article 11 shall be distributed to or for the benefit of the beneficial owners thereof in the following manner: Declaration of Covenants -61- Page 1030 of 2461 (Reserved for Clerk of Court) (a) Reconstruction or Repair. If the damaged property for which the proceeds are paid is to be repaired or reconstructed,the proceeds shall be paid to defray the cost thereof as elsewhere provided herein. Any proceeds remaining after defraying such costs shall be distributed to the Owners, with remittances to Element Owners and their mortgagees being payable jointly to them. Such proceeds shall be allocated in the same manner as the proceeds are allocated in subsection 11.7(b). (b) Failure to Reconstruct or Repair. If it is determined in the manner elsewhere provided that the damaged property for which the proceeds are paid shall not be reconstructed or repaired, the remaining proceeds shall be allocated among the Owners in proportion to the amount of loss suffered by the Elements; provided, however, that if the damage suffered affects fewer than all Owners, the percentage shares shall be pro rata allocated over only those Owners suffering damage from the applicable policies and proceeds in proportion to the amount of loss suffered by each affected Element Owner (the "Allocated Interests"), and distributed first to the holders of any mortgage on an insured Element in amounts sufficient to pay off their mortgages, as their interests may appear, and the balance,if any,to the applicable Owner(s). 11.8 Shared Facilities Manager as Agent. The Shared Facilities Manager is hereby irrevocably appointed as the exclusive agent and attorney-in-fact for Shared Facilities Manager and each Owner and for each owner of a mortgage or other lien upon an Element and for each owner-of any other interest in The Properties, subject to the terms of any mortgage held by Declarant's Mortgagee, to manage and coordinate the adjustment and settlement of all claims arising under property insurance policies purchased by the Shared Facilities Manager and the execution and delivery of releases upon the payment of claims, in each case in conjunction with Shared Facilities Manager's insurance and other consultants. 11.9 Owners' Personal Coverage. The insurance required to be purchased by the Shared Facilities Manager pursuant to this Article 11 shall not cover claims against an Owner due to occurrences occurring within its Element, nor casualty or theft loss to the contents of or improvements to an Owner's Element. It shall be the obligation of the individual Owner, if such Owner so desires, to purchase and pay for insurance as,to all such and other risks not covered by insurance required to be carried by the Shared Facilities Manager hereunder, provided that each Owner shall, at a minimum, obtain and maintain, or cause to be obtained and maintained, at such Owner's sole expense, the following insurance coverage: (a) Property. Property insurance for fire and other hazards on an"all-risk" basis for the replacement value of the improvements within the Element owned by it,on Declaration of Covenants -62- Page 1031 of 2461 (Reserved for Clerk of Court) industry standard forms affording customary coverage, subject to industry standard exclusions, customary deductibles and customary limits/sublimits, typically maintained by owners and required by mortgagees of similar properties in the geographical region. (b) Liability. Commercial general liability insurance written on an "occurrence basis" (rather than a "claims basis") under which policy each Owner, Declarant and the Shared Facilities Manager shall be named as an additional insured, on industry standard forms affording customary coverage, subject to industry standard exclusions, customary deductibles and customary limits/sublimits, typically maintained by owners and required by mortgagees of similar properties in the geographical region, but in no event less than $1,000,000 for each occurrence of injury or property damage and$3,000,000 in the aggregate. (c) Umbrella Liability. Umbrella or excess following form of insurance policy meeting the requirements of, but providing coverage in excess of, the policy in item (b) above with a limit of not less than $10,000,000 per occurrence and in the aggregate. (d) Worker's Compensation. Worker's Compensation and other mandatory insurance, when applicable, covering all persons employed by such Owner in connection with any work done on or about the Element(or any part thereof)in such amounts and to the extent required by Legal Requirements. (e) Proiect Encumbrances. Any and all insurance required of such Owner pursuant to the. Project Encumbrances that encumber its Element, unless such insurance is being maintained by Shared Facilities Manager. (f) Other Insurance. Such other or greater insurance as is typically maintained by owners and required by mortgagees of similar properties in the geographical region. The amounts and types of insurance required herein shall be adjusted from time to time as necessary to comply with the foregoing requirements and/or the requirements of Declarant's Mortgagee. All insurance required of or maintained by an Owner under this Article shall be procured from companies authorized to do business in the State of Florida and shall be rated in the latest edition of Best's Insurance Guide(or its successor, and if such guide becomes unavailable, then a comparable rating guide selected by Shared Facilities Manager)not less than A-:VIII (or such other rating as may be approved by Shared Facilities Manager). The insurance coverage required of each Owner pursuant to this Article may be provided through the coverage of (x) subject to the consent and agreement of the Shared Facilities Manager, a master policy carried by the Declaration of Covenants -63- Page 1032 of 2461 (Reserved for Clerk of Court) Shared Facilities Manager as and to the extent contemplated under Section 11.4 hereof, and/or(y)a blanket policy carried by it,provided that the coverage afforded shall not be reduced by reason of the use of such blanket policy and provided that the requirements set forth herein are otherwise satisfied. In addition, two or more Owners may mutually agree to maintain a single policy or policies for their respective Elements and interests (rather than separate and independent policies), provided that the requirements set forth herein are otherwise satisfied. Each Owner shall furnish to Shared Facilities Manager, upon the recordation of this Declaration and thereafter prior to the expiration of each policy,certificates of insurance(and, if requested, copies of policies),evidencing that the insurance required hereunder is in full force and effect. The Element Specific Manager shall be responsible for obtaining and maintaining the foregoing insurance following submission of any Element to an Element Specific Declaration. The amount of insurance required hereunder shall not be construed to be a limitation of liability on the part of any Owner or Unit Owner or their respective Permitted Users. All such policies of insurance shall provide that such policies may not be canceled or substantially modified without at least thirty (30) days' prior written notice to Shared Facilities Manager and the named insureds, including their respective mortgagees, provided that only ten (10) days' prior written notice shall be required for cancellation due to nonpayment of premium. All such policies shall further provide that the coverage afforded the additional insureds is on a primary and non-contributory basis with any other insurance available to the additional insureds, and if the additional insureds have other insurance that is applicable to the loss,such other insurance will be on an excess basis or contingent basis. When appropriate and obtainable,each Owner's insurance policies shall waive the insurer's right to: (i) as to property insurance policies, subrogation against Shared Facilities Manager and against the other Owners individually and as a group, (ii) to pay only a fraction of any loss in the event of coinsurance or if other insurance carriers have issued coverage upon the same risk (and the amount of the insurer's liability under such policies shall not be reduced by the existence of any other insurance),and(iii)avoid liability for a loss that is caused by an act of such Owner, Shared Facilities Manager or any other Owner (or any of its or their respective employees, contractors and/or agents)or as a result of contractual undertakings. In the event of any question or dispute as to whether any Owner's insurance policy complies with the requirements'of this Article, such question or dispute shall be submitted to Shared Facilities Manager, who, with the assistance of its insurance consultant, shall render a decision,which decision shall be dispositive of such question or dispute. Notwithstanding anything contained to the contrary herein, while Shared Facilities . Manager shall use reasonable efforts,to maintain copies of the insurance certificates and/or policies received by it, Shared Facilities Manager shall have no obligation to request and/or maintain same, nor shall Shared Facilities Manager have any obligation to take any affirmative action in the event that an Owner(including any Element Specific Declaration of Covenants -64- Page 1033 of 2461 (Reserved for Clerk of Court) Manager) fails to maintain adequate insurance or any insurance specifically required hereunder, including without limitation binding policies on behalf of such Owner (or Element Specific Manager, as applicable) or taking any other ordinary or extraordinary measures. Each Owner, by acceptance of a deed or other conveyance of an Element, holds Shared Facilities Manager and Declarant harmless and agrees to indemnify Shared Facilities Manager and Declarant from and against any and all claims made by any other Owner, any Unit Owner and its or their Permitted Users, on account of any property damage, personal injury and/or any other Losses of any kind or nature, including without limitation any and all costs and expenses associated with such claims, including inconvenience, relocation and/or moving expenses, lost time, business opportunities or profits, and attorneys' fees and other legal and associated expenses (through and including all appellate proceedings),arising out of,related to,caused by,associated with or resulting from the failure of such Owner (including any Element Specific Manager's) to maintain adequate insurance or the insurance coverages required to be maintained by an Owner pursuant to this Section 11.9. Each Owner hereby waives any and all claims and rights of action it may have against Declarant, Shared Facilities Manager and the other Owners, and their respective directors, officers, employees, contractors, agents or affiliates, with respect to any Losses arising out of any damage to its Element covered by property insurance required under this Section 11.9, whether or not such insurance was actually in effect, and whether or not such damage was caused by the negligence or other act or omission of Declarant, Shared Facilities Manager, the other Owners or their respective directors, officers,employees,contractors,agents or affiliates. Given that the systems, equipment and facilities (including without limitation elevator cabs, cables, machinery and equipment; HVAC systems; wires cables generators and other apparatus used in the delivery of the utility services, etc.) located in Element Exclusive Facilities are the property of the Owner of the Benefitted Element, such Owner, if it so desires, shall purchase and pay for insurance as to all such property,and the Owner of the Burdened Element shall have no obligation to maintain or pay for same. 11.10 Benefit of Mortgagees. Certain provisions in this Article 11 are for the benefit of mortgagees of Elements and may be enforced by such mortgagees. 12. RECONSTRUCTION OR REPAIR OF SHARED FACILITIES 12.1 Application of Provisions. The procedures stated in this Article 12 apply to damage to or destruction of the Insured Property and do not apply to the repair or restoration of improvements within any Element or Element Exclusive Facilities. Each Owner shall be solely responsible for repairing or rebuilding the improvements within its Element and Declaration of Covenants -65- Page 1034 of 2461 (Reserved for Clerk of Court) any Element Exclusive Facilities. Each Owner may determine in its discretion whether to rebuild the improvements within its Element or Element Exclusive Facilities, but such Owner shall complete those repairs that the Shared Facilities Manager deems reasonably necessary to avoid further damage to the Insured Property or Element improvements that are a port of or serve any other Element, or substantial diminution in value of such other Elements, and to protect the Owners from liability from the condition of any of the improvements on The Properties. Any reconstruction or repair by any Element Owner following a fire or other casualty of any kind or nature (including without limitation the reconstruction or repair of Element Exclusive Facilities).shall be subject to and performed in accordance with the requirements of Article 5. 12.2 Determination to Reconstruct or Repair. In the event of damage to or destruction of the Insured Property as a result of fire or other casualty,the Shared Facilities Manager shall determine whether or not to repair and/or restore the Insured Property, and if a determination is made to effect restoration,the Shared Facilities Manager shall disburse the proceeds of all property insurance policies required to be maintained by or payable to it under Article 11 to the contractors engaged in such repair and restoration in appropriate progress payments. Notwithstanding the foregoing, in the event insurance proceeds are "sufficient" to repair or restore any Insured Property damaged or destroyed, the Shared Facilities Manager shall be required to effect such repair or restoration. For purposes of the preceding sentence, such proceeds shall be deemed "sufficient" if either (i) the insurance proceeds available under any applicable policies are within$J000,000 of the total amount needed to effect such repairs or restoration, or (ii) if the total amount needed to effect the repairs or restoration is more than $_000,000 above the insurance proceeds available under any applicable policies, and an Element Owner (or combination of Element Owners) elects to contribute the deficit in the repair funds for the use of the Shared Facilities Manager to effect the repair or restoration.' Subject to the preceding paragraph, in the event the Shared Facilities Manager determines not to effect restoration to the Shared Facilities, the net proceeds of insurance resulting from such damage or destruction shall be divided among all the Owners benefited by the insurance maintained by the Shared Facilities Manager as set forth in subsection 11.7(b); provided, however, that no payment shall be made to an Owner until all mortgages and liens on the Owner's Element have first been paid off, from the Owner's share of such fund, in the order of priority of such mortgages and liens. 12.3 Plans and Specifications. Any reconstruction or repair must be made substantially in accordance with the plans and specifications for the original improvements and then 2 Client: Please advise as to amounts. Declaration of Covenants -66- Page 1035 of 2461 (Reserved for Clerk of Court) applicable building, zoning and other codes; or if not,then in accordance with the plans and specifications approved by the Shared Facilities Manager. 12.4 Assessments. If the proceeds of the insurance are not sufficient to defray the estimated costs of reconstruction and repair to be effected by the Shared Facilities Manager, or if at any,time during reconstruction and repair,or upon completion of reconstruction and repair, the funds for the payment of the costs of reconstruction and repair are insufficient, Assessments shall be made against the Owners benefited by the insurance policy providing the proceeds for reconstruction by the Shared Facilities Manager(which shall be deemed to be Assessments made in accordance with, and secured by the lien rights contained in,Article 15) in sufficient amounts to provide funds for the payment of such costs. Such Assessments on account of damage to the Insured Property shall be in proportion to all of the Owners'respective Allocated Interests. 12.5 Reconstruction or Repair by Element Owners. Notwithstanding anything herein to the contrary, Shared Facilities Manager may delegate responsibility for repair and/or reconstruction of portions of the Insured Property to the Owner thereof (e.g., the Structure of an Element), in which event Shared Facilities Manager shall disburse the proceeds of the property insurance policies covering such Insured Property to each such Element Owner, its contractors engaged in such repair and restoration and/or both jointly, as may be determined by Shared Facilities Manager, to the extent proceeds are available for such purpose. In the event that more than one Element Owner is responsible for repair or restoration of the Insured Property following damage or destruction, all such Owners shall cooperate with each other and with Shared Facilities Manager, and work in good faith, for the common goal of constructing and completing all such repairs and restoration on a timely basis and in accordance with the Project Standard. Any reconstruction or repair by any Element Owner following a fire or other casualty of any kind or nature (including without limitation the reconstruction or repair of the Insured Property owned by it pursuant to this Section, interior improvements to its Element, Element Exclusive Facilities or otherwise)shall be subject to and performed in accordance with the requirements of Article 5. 12.6 Benefit of Mortgagees. Certain provisions in this Article 12 are for the benefit of mortgagees of Elements and may be enforced by any of them. Declaration of Covenants -67- Page 1036 of 2461 (Reserved for Clerk of Court) 13. CONDEMNATION 13.1 Effect of Taking. The taking of portions of the Shared Facilities by the exercise of the power of eminent domain shall be deemed to be a casualty, and,subject to the terms of this Declaration, the awards for that taking shall be deemed to be proceeds from insurance on account of the casualty. Even though the awards may be payable to Owners, the Owners shall deposit the awards with the Shared Facilities Manager;and in the event of failure to do so, in the discretion of Shared Facilities Manager, a charge shall be made against a defaulting Owner in the amount of such Owner's award, or the amount of that award shall be set off against the sums hereafter made payable to that Owner. 13.2 Determination Whether to Reconstruct. The effect of the taking shall be addressed in the manner provided for determining whether damaged property will be reconstructed and repaired after casualty. For this purpose, the taking by eminent domain also shall be deemed to be a casualty and the provisions of Article 12 shall apply as though fully set forth herein (including without limitation the provisions thereof relating to disbursements of excess proceeds and Assessments for deficits in proceeds), provided that any decision to reconstruct or repair shall be to restore the affected improvements to the nearest whole architectural structure taking into consideration the nature and extent of the condemnation. 14. PROPERTY TAXES 14.1 Separate Assessment. Each Element Owner shall cooperate with Shared Facilities Manager in efforts to have the County Property Appraiser issue separate Tax folio numbers to each of the Elements within The Properties.Since The Properties consist of multiple parcel buildings containing separate ownership parcels that are vertically located, in whole or in part,over and include a portion of the common land,the value of the land underlying the Elements shall be allocated to and included in each Element (excluding the Shared Facilities Element)in the same proportion that the assessed value of the improvements comprising each Element (other than the Shared Facilities Element) bears to the total assessed value of all improvements comprising all of the Elements (excluding the Shared Facilities Element) in Three Hundred Alton, as determined by the County Property Appraiser, unless a different method of valuing the land underlying the Elements in a project consisting of multiple parcel buildings is required by Legal Requirements (in which case, such method shall be followed).To the extent that separate Tax folios are created for each of the Elements, each Owner shall be solely responsible for payment of the Tax bill issued with respect to its Element. If a separate Tax folio number is created for the Shared Facilities Element, Taxes assessed against the Shared Facilities Element shall be handled and paid for as provided in Section 14.5. If the Tax folio number for any Element erroneously includes portions of Declaration of Covenants -68- Page 1037 of 2461 (Reserved for Clerk of Court) another Element, the Owners of such Elements shall work cooperatively and in good faith to correct such error with the County Property Appraiser. 14.2 No Separate Assessment. In the event that separate Tax folios are not established for each of the Elements, but rather any Element is included and taxed as part of another Element (such Elements herein referred to as the "Taxed Elements"), then the Tax values of each Taxed Element shall be determined in accordance with the following: (a) Within ten (10) business days of any Element Owner's receipt of the real estate Tax bill for its Element that includes one or more other Elements, such Owner shall endeavor to give notice to Shared Facilities Manager and the other Owners of the Taxed Elements,together with a copy of the Tax bill. While each Element Owner of a Taxed Element shall endeavor to provide such notice to the Shared Facilities Manager and the other Owners of the Taxed Elements, the failure to do so shall not be a default hereunder since each Element Owner has the ability to obtain a copy of the applicable Tax bill through the County Property Appraiser's office. Under no circumstances shall Shared Facilities Manager be obligated to determine whether any Elements are Taxed Elements; it being agreed that the obligations of Shared Facilities Manager under this Section 14.2 shall arise if, and only if, an Element Owner provides Shared Facilities Manager with a copy of the Tax bill that includes more than one Element. Following receipt of such Tax bill, Shared Facilities Manager shall engage a Florida licensed and MAI certified real estate appraiser or qualified tax consultant (herein, the "tax consultant") having at least ten (10) years' experience in real estate Tax protest work in the County to appraise the Taxed Elements as hereinafter provided. (b) The tax consultant shall be engaged by Shared Facilities Manager to value each of the Elements included in the Taxed Elements using the criteria that the County Property Appraiser is eligible to use under the Florida Statutes in determining ad valorem Tax values (and, if more than one method of valuation is available, the tax consultant shall select the method to be applied, in its reasonable discretion), and shall allocate the value of the Taxed Elements, as disclosed in the applicable Tax bill, among the individual Elements included in the Taxed Elements. The tax consultant shall be directed to deliver a report to Shared Facilities Manager indicating the allocation of value among the Elements included in the Taxed Elements and calculating (and setting forth) the percentage that each such valuation bears to the total value of the Taxed Elements,as disclosed in the Tax bill(each such percentage being the"Tax Value Percentage Share"), together with an invoice showing the tax consultant's fees and expenses. The land value associated with the Taxed Elements shall be allocated based on the value of each Taxed Element relative to the value of all Declaration of Covenants -69- Page 1038 of 2461 (Reserved for Clerk of Court) Taxed Elements, as determined by the tax consultant. Each Owner shall,within ten (10) business days following Shared Facilities Manager's notice of such determination by the tax consultant, (i) remit to the County Tax Collector its portion of the Tax bill based on the Tax Value Percentage Share multiplied by the total Taxes then due for the Taxed Elements under the Tax bill, (ii) provide to Shared Facilities Manager and the other Taxed Element Owners evidence of such payment, and (iii) pay to Shared Facilities Manager its portion of the tax consultant's fee and expenses based on the Tax Value Percentage Share multiplied by the total tax consultant's fees and expenses. Shared Facilities Manager shall not have any liability for any failure of the Taxed Elements Owners to receive the benefit of discounts associated with the early payment of real estate Taxes or penalties, interest or other charges that may accrue on Taxes for the Taxed Elements due to the foregoing valuation process or otherwise,all of which shall be shared among the Taxed Element Owners based on the same allocation as the Tax Value Percentage Share provided herein; provided, however, that any loss of discounts, penalties, interest or other charges resulting from any Taxed Element Owner's failure to pay or perform its obligations when required hereunder shall be borne solely by such defaulting Taxed Element Owner. (c) As soon as reasonably possible (but in any event no later than five (5) business days)following any Element Owner's receipt of the TRIM notice from the taxing authority for its,Element that includes one or more other Elements, such Owner shall endeavor to give notice to Shared Facilities Manager and the other Owners of the Taxed Elements. While each Element Owner of a Taxed Element shall endeavor to provide such notice to the Shared Facilities Manager and the other Owners of the Taxed Elements, the failure to do so shall not be a default hereunder since each Element Owner has the ability to obtain a copy of the applicable TRIM notice through the County Property Appraiser's office. The Owners of the Taxed Elements shall reasonably cooperate with each other and work in good faith to enable the timely protest of the valuation of the Taxed Element if any Taxed Element Owner desires to protest same, provided that the costs shall be paid initially by the Owner(s) electing to pursue the protest, but deducted from any refund of Taxes as hereinafter provided. In the event that any Taxed Element Owner(s) file a timely protest of the valuation of the Taxed Element as disclosed in the TRIM notice prior to issuance of the Tax bill, the Taxed Element Owners and Shared Facilities Manager shall still undertake the valuation procedure outlined above without delay, and in the event of any refund of Taxes based on the Tax protest, such amount shall be shared among the Owners of the Taxed Elements based on the same allocation as the Tax Value Percentage Share provided for above, after deducting the reasonable costs of the protest. Declaration of Covenants -70- Page 1039 of 2461 (Reserved for Clerk of Court) (d) Notwithstanding the foregoing, the Taxed Element Owners (or any of them) shall have the right to request a "split" or "cutout" of its respective Taxed Element from the other Taxed Elements pursuant to Section 197.373 of the Florida Statutes (or any successor or other provision), as amended, or any rules promulgated with respect to same, and to obtain a separate Tax value and assessment for each such Taxed Element. Any Taxed Element Owner so requesting a split or cutout of its Taxed Element shall provide a copy of such request to Shared Facilities Manager and the other Taxed Element Owners simultaneously with the delivery of same to the County Tax Collector. If any Taxed Element Owner is successful in obtaining from the County Tax Collector and/or Property Appraiser the amount of the assessment on its Taxed Element, such Taxed Element Owner shall notify the Shared Facilities Manager and the Owners of the other Taxed Elements. The determination by the County Property Appraiser shall be conclusive with respect to the Tax value and assessment for the Taxed Element in question absent manifest error (notwithstanding any different determination or valuation by a tax consultant), and the Taxed Element Owners shall be entitled to pay Taxes for their respective Taxed Element based on such determination. Should any Taxed Element Owner successfully obtain from the County Tax Collector and/or Property Appraiser separate Tax values and/or assessments for one or more Taxed Elements, the Taxed Element Owners shall thereafter pursue a determination of the Tax values and assessments for each of the Taxed Elements under this subsection 14.2(d) prior to Shared Facilities Manager commencing the allocation procedures through the tax consultant set forth above, unless Shared Facilities Manager reasonably determines that separate allocation of values and/or assessments from the Property Appraiser for two or more of the Taxed Elements may be necessary. 14.3 Reference to Taxes in Other Documents. For purposes of this Declaration and any documents or instruments, such as leases and Element Specific Declarations, referring to the allocation of Taxes (or any component thereof) pursuant to this Declaration, Taxes allocated to a portion of The Properties shall mean those Taxes assessed and payable with respect to each Element as if each such Element are or were separately assessed and taxed,and if at any time there are no separate assessments,Taxes shall be allocated pursuant to the allocations and in the manner set forth in Section 14.2. Notwithstanding anything to the contrary contained in this Declaration,except for Taxes assessed against the Shared Facilities Element,Taxes assessed against or relating to any Element (whether through separate Tax folio numbers or the allocations set forth herein) shall not be included in the Shared Facilities Costs, and each Owner shall be obligated to pay such Taxes with respect to its Element without contribution from any other Owner. For the avoidance of doubt, Taxes associated with Element Exclusive Facilities shall be paid by the Owner of the Burdened Element in which such facilities are Declaration of Covenants -71- Page 1040 of 2461 (Reserved for Clerk of Court) located, unless there is a separate Tax bill for such Element Exclusive Facilities and/or the property located therein,in which case the Owner of the Benefitted Element served by such facilities shall pay same. 14.4 Failure to Pay Taxes. If an Owner shall fail to pay any portion of the Taxes or any other charge levied against that Owner's Element prior to the date such Taxes become delinquent,which such Owner is obligated to pay pursuant to this Article 14, and if such unpaid Taxes are a lien or encumbrance on any portion of The Properties not owned by the delinquent Owner and/or on any Project Facilities serving any other Element, and any lawful authority would thereafter have the right to sell Tax certificate(s)or issue Tax warrants or deed(s)or otherwise foreclose against such portion of The Properties, or to impair or extinguish any easement benefitting any Owner by reason of such nonpayment, then any affected Owner shall (a) have the right (but not the obligation), upon the expiration of ten (10) days after notice of non-payment to the defaulting Owner (or such shorter period of time, but not less than three (3) days, if such Taxes have become delinquent), to pay such Taxes, or share thereof, together with any interest and penalties thereon,whereupon the Owner obligated to make such payment shall, upon demand, reimburse such affected Owner who made such payment for the amount thereof, and/or(b) to pursue any and all rights and remedies available at law or in equity against the delinquent Owner failing to make such payment. Interest shall accrue on the amount of any such reimbursement obligation not paid within ten (10) days after demand at the Default Rate. 14.5 Taxes Against Shared Facilities. It is intended that any and all Taxes against the Shared Facilities Element or Shared Facilities shall be (or have been, because the purchase prices of the Elements and Structures have already taken into account the value of the Shared Facilities), assessed against and payable as part of the Taxes of the applicable Elements within The Properties. However, in the event that, notwithstanding the foregoing, any such Taxes are assessed directly against the Shared Facilities Element or Shared Facilities, Shared Facilities Manager shall have the exclusive right to protest or appeal same, including Taxes on any improvements and any personal property located thereon. In such event, all such Taxes (and any costs of any protest or appeal thereof) shall be included as part of the expenses of the Shared Facilities which are assessed by Shared Facilities Manager (in part, for the benefit of the Shared Facilities Element Owner) against each of the Elements and shall be shared among the Elements (excluding the Shared Facilities Element) based on the assessed or appraised value of each Element(other than the Shared Facilities Element) relative to the total assessed or appraised value of all Elements (excluding the Shared Facilities Element), as determined by the County Property Appraiser(with respect to Elements that have separate Tax folio numbers or assessed values) and/or a tax consultant selected by Shared Facilities Manager in accordance with the valuation process set forth above (with respect to Elements which are not separately assessed). Further, if Taxes are assessed directly Declaration of Covenants -72- Page 1041 of 2461 (Reserved for Clerk of Court) against the Shared Facilities Element or Shared Facilities, without limiting the terms of this Declaration,Shared Facilities Costs may include such amounts deemed necessary by Shared Facilities Manager to provide it with sufficient funds to pay such Taxes at least thirty(30)days before the date the same are due. 15. PROVISIONS REGARDING SHARED FACILITIES COSTS 15.1 Maintenance Expenses. Shared Facilities Manager shall maintain in good repair, and shall replace as often as necessary, the Shared Facilities as provided in other provisions of this Declaration, all such work to be done as determined and ordered by Shared Facilities Manager. Each Owner, by acceptance of a deed or other conveyance of any portion of The Properties, shall be deemed to have agreed that the level of service and quality of maintenance and repair shall be commensurate, in the opinion of Shared Facilities Manager, with the Project Standard. All work by Shared Facilities Manager pursuant to this Article and pursuant to Article 6 related to the foregoing and/or with respect to the Shared Facilities shall be paid for through Assessments (either general or special) imposed in accordance herewith. In the event that any Element Owner requests Shared Facilities Manager to repair or replace any portions of that Owner's Element other than the Shared Facilities which would not otherwise fall under Shared Facilities Manager's responsibilities,then Shared Facilities Manager may do so as long as all costs and expenses thereof are paid by the applicable Element Owner. Likewise, any repair or other work to the Shared Facilities necessitated by the misuse, negligence or other action or inaction of an Owner or its Tenants or Permitted Users shall be paid for by the Owner causing the damage. No Owner may waive or otherwise escape liability for Assessments to Shared Facilities Manager by non-use (whether voluntary or involuntary) of the Shared Facilities or abandonment of the right to use same. Notwithstanding anything herein contained to the contrary, Shared Facilities Manager shall be excused and relieved from any and all maintenance, repair and/or replacement obligations under this Article to the extent that the funds necessary to perform same are not available through the Assessments imposed and actually collected. Shared Facilities Manager shall have no obligation to fund and/or advance any deficit or shortfall in funds needed by Shared Facilities Manager in order to properly perform the maintenance, repair and/or replacement obligations described herein. 15.2 Ongoing Developer Obligations. Without limiting the generality of the obligations of Shared Facilities Manager under the provisions of this Declaration, Shared Facilities Manager shall (a) assume or otherwise be responsible for Declarant's and its affiliates' ongoing responsibilities to the County and any other Governmental Authority with respect to The Properties as a whole or more than one Element thereof or the Shared Facilities, including without limitation such obligations of Declarant or its affiliates under the Project Encumbrances (except with respect to the obligations under the Project Encumbrances that are the responsibility of an Owner thereunder or under this Declaration of Covenants --73- Page 1042 of 2461 (Reserved for Clerk of Court) Declaration, which shall remain with the applicable Owner), and (b) indemnify and hold Declarant and its affiliates harmless with respect thereto in the event of Shared Facilities Manager's failure to fulfill those responsibilities. Any and all costs and/or expenses incurred by Shared Facilities Manager in assuming and/or performing any of such obligations shall be part of the Shared Facilities Costs assessed against all Element Owners (including Unit Owners) in the manner provided by this Article. In the event of doubt as to whether obligations under the Project Encumbrances (or any particular obligation thereunder) is the responsibility of Shared Facilities Manager or any Owner, the decision of Shared Facilities Manager in such regard shall be final and conclusive. 15.3 Assessment to Shared Facilities Manager;Allocations. Declarant(and each party joining in any Supplemental Declaration) hereby covenants and agrees, and each Owner of an Element (including, without limitation, a Unit Owner) or any portion thereof, by acceptance of a deed therefor or other conveyance thereof, whether or not it shall be so expressed in such deed or other conveyance,shall be deemed to covenant and agree, to pay to Shared Facilities Manager annual Assessments and charges for the operation and insurance of, and for payment of expenses (and real estate and personal property Taxes) allocated or assessed to or through or otherwise incurred by the Shared Facilities Element Owner or Shared Facilities Manager,of and/or for the ownership,maintenance, management, operation and insurance of the Shared Facilities, the establishment of reasonable reserves for the replacement of same, the establishment of a fund to pay legal costs and expenses of Shared Facilities Element Owner or Shared Facilities Manager, capital improvement Assessments, special Assessments and all other charges and Assessments hereinafter referred to or imposed by Shared Facilities Manager in connection with the repair, replacement, improvement, maintenance, management, operation and insurance of,and taxes on,the Shared Facilities(collectively,the "Shared Facilities Costs"), all such Assessments to be fixed, established and collected from time to time as herein provided. The Shared Facilities Costs shall also be deemed to include any and all costs and expenses (including rent) relating to or incurred by Shared Facilities Element Owner or Shared Facilities Manager under the Project Encumbrances, rent incurred by Shared Facilities Manager (whether directly or by reimbursement to third party managers) for property management offices located within or outside The Properties and used or occupied by Shared Facilities Manager or other property manager(s) providing services to the Shared Facilities, any and all costs and expenses (including without limitation reasonable attorneys' fees in all legal proceedings commenced by or against Shared Facilities Manager) incurred by Shared Facilities Manager in connection with the performance of its obligations under this Declaration,a management fee payable to Shared Facilities Manager (or its designee) not to exceed twelve and one-half percent (12.5%) of the other Shared Facilities Costs and, in connection with any construction performed by or under the supervision of Shared Facilities Manager, a construction oversight fee equal to five percent (5%) of the total cost of the work, provided that if such cost exceeds $1,000,000 the construction Declaration of Covenants -74- Page 1043 of 2461 (Reserved for Clerk of Court) management fee shall be equal to three percent (3%) of such total costs to reimburse Shared Facilities Manager for such services. Without limiting the generality of the foregoing,Shared Facilities Costs may include the following: (a)to the extent applicable, any lease agreement and other payments required under lease agreements for artwork, sculptures, and/or art installations within the Shared Facilities, if same is leased by the Shared Facilities Manager rather than being owned by the Shared Facilities Manager;(b) to the extent the Shared Facilities Manager enters into any valet parking agreements for off-site parking services, the costs associated with,same, (c) the costs and expenses of maintaining, repairing and/or replacing as necessary any public improvements (such as, without limitation, sidewalks, medians, landscaping, etc.) located upon or adjacent to (even if beyond the legal boundaries of) The Properties, if any, and/or any art, mural and/or other decorative feature of the Project, existing and/or to the extent required, maintained or imposed by any agreement, permit, approval or other instrument recorded against the Land or in connection with, or as a condition of obtaining, the permits and/or•approvals for development and operation of The Project; (d) costs resulting from damage to The Properties or any portion thereof which are necessary to satisfy any deductible and/or to effect necessary repairs which are in excess of insurance proceeds received as a result of such damage;.(e) if applicable, any costs in connection with the Shared Facilities Manager's obtaining any software and/or other technology for the integrated provision of services and/or access to the front desk,valet parking, concierge service, maintenance personnel, and/or any other shared facilities and/or shared services available to Owners within the Project; and (f) any ad valorem taxes assessed against Shared Facilities. The annual Assessment, capital improvement • Assessment and special Assessment, together with such interest thereon and costs of collection thereof(including any costs of any collection agency) and costs of protecting the lien, shall be a charge on each Element, and shall be a continuing lien upon each Element and upon all improvements thereon, from time to time existing as herein provided. Each such Assessment, together with such interest thereon and costs of collection thereof as hereinafter provided, shall also be the personal obligation of all persons who own any fee interest in any Element (or any portions thereof), at the time when the Assessment fell due and all subsequent Owners and fee owners and Unit Owners thereof until paid, except as provided in Section 15.6. Reference herein to Assessments shall be understood to include reference to any and all of said charges whether or not specifically mentioned. Shared Facilities Costs allocable to the Shared Facilities shall be allocated among the Elements as follows, subject to reasonable adjustments by Shared Facilities Manager as hereinafter provided: Element Share of Shared Facilities Costs Residential Element % Declaration of Covenants -75- Page 1044 of 2461 (Reserved for Clerk of Court) Commercial Element % Shared Facilities Element 0.00% TOTAL 100% The foregoing allocations shall be subject to reasonable adjustments by Shared Facilities Manager from time to time (based on, inter glia, relative or intensity of use of the Shared Facilities by the Owners and their respective Permitted Users, actual consumption or expense and/or other relevant factors), which adjustments shall be made by Supplemental Declaration executed by Shared Facilities Manager and the Declarant's Mortgagee, and otherwise joined into by all Owners. Notwithstanding the foregoing or the allocations set forth above, (a)to the extent any utility or other charges are part of the costs attributable to the Shared Facilities and those charges can reasonably be allocated to the particular Elements based upon actual consumption as determined by Shared Facilities Manager's engineer or consultant, then in such event, such utility or other charges shall be allocated based upon actual consumption, rather than by the percentage allocations described above, (b) premiums for insurance policies purchased by Shared Facilities Manager pursuant to this Declaration shall be allocated among the Elements as provided in Section 11.5, (c) if Taxes are assessed directly against the Shared Facilities Element or Shared Facilities (rather than being paid as part of the Taxes applicable to the other Elements), Taxes with respect to the Shared Facilities shall be allocated and assessed as provided in Section 14.5,(d) [placeholder for other specific allocations], and (e) if, under any other provision of this Declaration, any other costs are allocated to the Element Owners (or any one or more of them) on a basis other than the manner set forth in this Section,then such costs shall be allocated by Shared Facilities Manager to such Element Owners as so provided in such other provisions. All such charges, premiums, Taxes and other costs nevertheless are and shall remain Assessments(irrespective of how same are allocated among the Elements), subject to Shared Facilities Manager rights and remedies set forth in this Article 15 in the event any Owner fails to pay same as required herein. 15.4 Levying Assessments. Shared Facilities Manager shall budget and adopt Assessments for Shared Facilities Manager's general expenses for the Shared Facilities Costs based, in part, upon Shared Facilities Manager's reasonable projections of the intensity of use of the applicable Shared Facilities for the period subject to the budget. In addition to the regular and capital improvement Assessments which are or may be levied hereunder, Shared Facilities Manager shall have the right to collect reasonable reserves for the replacement of the applicable Shared Facilities (or any components thereof)and to levy special Assessments to fund expenses which Shared Facilities Manager does not reasonably anticipate having sufficient funds to cover,or special Assessments or impose other charges against an Owner(s) to the exclusion of other Owners for the repair or Declaration of Covenants -76- Page 1045 of 2461 (Reserved for Clerk of Court) replacement of damage to any portion of the applicable Shared Facilities (including, without limitation, improvements and landscaping thereon) caused by the misuse, negligence or other action or inaction of an Owner or its Tenants or Permitted Users. Any such special Assessment shall be subject to all of the applicable provisions of this Article including, without limitation, lien filing, and foreclosure procedures and late charges and interest. Any special Assessment levied hereunder shall be due within the time specified by Shared Facilities Manager in the action imposing such Assessment. Further, funds which are necessary or desired by Shared Facilities Manager for the addition of capital improvements (as distinguished from repairs, maintenance, replacement and/or relocation) relating to the applicable Shared Facilities and which have not previously been collected as reserves or are not otherwise available to Shared Facilities Manager (other than by borrowing) shall be levied by Shared Facilities Manager as Assessments against the applicable Element Owners entitled to use of (or benefiting from) the particular component of the applicable Shared Facilities. The annual regular Assessments provided for in this Article shall commence on the first day of the month next following the recordation of this Declaration and shall be applicable through December 31 of such year. Each subsequent annual Assessment shall be imposed for the year beginning January 1 and ending December 31. The annual Assessments shall be payable in advance in monthly installments, or in annual, semi-or quarter-annual installments if so determined by' Shared Facilities Manager (absent which determination they shalt be payable monthly). The Assessment amount (and applicable installments) may be changed at any time by Shared Facilities Manager from that originally stipulated or from any other Assessment that is in the future adopted by Shared Facilities Manager. The original Assessment for any year shall be levied for the calendar year (to be reconsidered and amended, if necessary, at any appropriate time during the year), but the amount of any revised Assessment to be levied during any period shorter than a full calendar year shall be in proportion to the number of months (or other appropriate installments) remaining in such calendar-year. Shared Facilities Manager shall fix the date of commencement and the amount of the Assessment against the Elements for each Assessment period, to the extent practicable, at least thirty (30) days in advance of such date or period, and shall, at that time, prepare a roster of the Elements and Assessments applicable thereto which shall be kept in the office of Shared Facilities Manager and shall be open to inspection by any Owner. Written notice of the Assessment shall thereupon be sent to every Owner subject thereto twenty (20) days prior to payment of the first installment thereof, except as to special Assessments. In the event no such notice of the Assessments for a new Assessment period is given, the amount payable shall continue to be the same as the amount payable for the previous period, until changed in the manner provided for herein. 15.5 Effect of Non-Payment of Assessment; the Personal Obligation; the Lien; Remedies of Shared Facilities Manager. If the Assessments (or installments) provided for herein are Declaration of Covenants -77- Page 1046 of 2461 (Reserved for Clerk of Court) not paid on the date(s) when due (being the date(s) specified herein or pursuant hereto), then such Assessments (or installments) shall become delinquent and shall, together with late charges, interest on the late amount at the Default Rate and the cost of collection thereof (including any costs of any collection agency) and any costs for protection of the lien, as herein provided, thereupon become a continuing lien on the Element and all improvements thereon which shall bind such property in the hands of the then Owner, the Owner's heirs, personal representatives, successors and assigns. Except as provided in Section 15.6 to the contrary, the personal obligation of an Owner to pay such Assessment shall pass to such Owner's successors in title and recourse may be had against either or both. If any installment of an Assessment is not paid within ten (10)days after the due date, at the option of Shared Facilities Manager a late charge not greater than the amount of twenty-five percent (25%) of such unpaid installment may be imposed (provided that only one late charge may be imposed on any one unpaid installment and if such installment is not paid thereafter, it and the late charge shall accrue interest as provided herein but shall not be subject to additional late charges; provided further, however, that each other installment thereafter coming due shall be subject to one late charge each as aforesaid) and Shared Facilities Manager may bring an action at law against the Owner(s) personally obligated to pay the same, may record a claim of lien (as evidence of its lien rights as hereinabove provided for) against the Element on which the Assessments and late charges are unpaid and all improvements thereon, may foreclose the lien against the applicable portion of the Element and all improvements thereon on which the Assessments and late charges are unpaid in like manner as foreclosure of a mortgage lien, or may pursue one or more of such remedies at the same time or successively, and attorneys' fees and costs actually incurred in preparing and filing the claim of lien and the complaint, if any, and prosecuting same (including costs of any collection agency),in such action shall be added to the amount of such Assessments, late charges and interest secured by the lien, and in the event a judgment is obtained, such judgment shall include all such sums as above provided and attorneys' fees actually incurred together with the costs of the action, through all applicable appellate levels (and including fees incurred in bankruptcy or probate proceedings,if applicable). Failure of Shared Facilities Manager(or any collecting entity) to send or deliver bills or notices of Assessments shall not relieve Owners from their obligations hereunder. Shared Facilities Manager shall have such other remedies for collection and enforcement of Assessments as may be permitted by applicable law. All remedies are intended to be,and shall be,cumulative. 15.6 Subordination of the Lien. The lien of the Assessments provided for in this Article shall be subordinate to real property Tax liens and the lien of any Mortgage on an Element; provided, however,that any such mortgage lender when in possession,and in the event of a foreclosure, any purchaser at a foreclosure sale, and any such mortgage lender acquiring a deed in lieu of foreclosure, and all persons claiming by, through or under such purchaser or mortgage lender,shall hold title subject to the liability and lien of any Declaration of Covenants -78- Page 1047 of 2461 (Reserved for Clerk of Court) Assessment coming due after such foreclosure (or conveyance in lieu of foreclosure). Any unpaid Assessment which cannot be collected as a lien against any Element by reason of the provisions of this Article shall be deemed to be an Assessment divided equally among, payable by and a lien against all Elements subject to Assessment by Shared Facilities Manager, including the Elements as to which the foreclosure (or conveyance in lieu of foreclosure)took place. 15.7 Curative Right. Declarant, for all Elements now or hereafter located within The Properties, hereby acknowledges and agrees, and each Owner of any Element by acceptance of a deed therefor or other conveyance thereof, whether or not it shall be so expressed in such deed or other conveyance, shall be deemed to acknowledge and agree, that it shall be the obligation of Shared Facilities Manager to maintain, repair and replace the Shared Facilities in accordance with the provisions of this Declaration. Notwithstanding anything herein contained to the contrary,in the event(and only in the event)that Shared Facilities Manager fails to maintain the applicable Shared Facilities as required under this Declaration, any affected Element Owner shall have the right to perform such duties; provided, however, that, except in the case of an emergency (in which case such notice as is reasonable under the circumstances shall be required)same may only occur after thirty (30) business days' prior written notice to Shared Facilities Manager and provided that Shared Facilities Manager has not effected curative action within said thirty(30)business day period(or if the curative action cannot reasonably be completed within said thirty (30) business day period, provided only that Shared Facilities Manager has not commenced curative actions within said thirty (30) business day period and thereafter diligently pursued same to completion). To the extent that an Element Owner must undertake maintenance responsibilities as a result of Shared Facilities Manager's failure to perform same, then in such event, but only for such remedial actions as may be necessary, the Element Owner shall be deemed vested with the Assessment rights of Shared Facilities Manager hereunder for the limited purpose of obtaining reimbursement from the Owners for the costs of performing such remedial work and the easement rights of the Shared Facilities Manager for the limited purpose of carrying out such remedial actions. 15.8 Priority of Liens. Notwithstanding anything herein contained to the contrary, any Assessment sums collected shall be applied first to the Assessments of Shared Facilities Manager,and then to those of the collecting Element Specific Manager. 15.9 Financial Records. Shared Facilities Manager shall maintain financial books and records showing its actual receipts and expenditures with respect to the maintenance, operation, repair, replacement, alteration and relocation of the Shared Facilities, including the then current budget and any then proposed budget (the "Facilities Records"). The Facilities Records need not be audited or reviewed by a Certified Public Accountant. Any Owner shall have the right to inspect the Facilities Records once per Declaration of Covenants -79- Page 1048 of 2461 (Reserved for Clerk of Court) calendar year at the offices of the Shared Facilities Manager, upon not less than thirty (30) days' prior written notice to Shared Facilities Manager, provided that any such inspection shall be limited to the Facilities Records pertaining to the immediately preceding and current calendar year only(and not any other calendar years). 15.10 Estoppel Certificates. Upon the request of any Element Owner or its mortgagee, Shared Facilities Manager shall furnish an estoppel certificate confirming such information as may be reasonably requested by such parties, such as the amount and status of payment of Assessments, whether this Declaration has been amended or supplemented (and, if so, identifying the amendments and/or supplements), and whether such Owner or its Permitted Users are in compliance with this Declaration. The estoppel certificate shall be based on the actual knowledge of Shared Facilities Manager without independent investigation. Shared Facilities Manager may establish a reasonable fee to be charged to reimburse it for the cost of preparing any certificates hereunder. 15.11 Shared Facilities Manager Consent: Conflict. The provisions of this Article 15 shall not be amended, modified or in any manner impaired and/or diminished, directly or indirectly,without the prior written consent of Shared Facilities Manager. In the event of any conflict between the provisions of this Article 15, and the provisions of any other Section of this Declaration addressing the same subject matter, the provisions of this Article 15 shall prevail and govern. 16. PROVISIONS REGARDING PARKING 16.1 General. Declarant hereby grants and reserves unto the Shared Facilities Manager exclusive control of the parking areas within the Shared Facilities and the right at any time,and from time to time,to grant easements over, under and upon the Parking Area, and the exclusive right at any time, and from time to time,to grant or assign to specific Structures, Elements or Units, or any Owner, Unit Owner, Element Specific Manager or other party,the right to use (by easement, license or other agreement) one or more of the parking spaces within the Parking Area on an exclusive or non-exclusive basis, as may be determined by the Shared Facilities Manager in its sole discretion. Accordingly, all of the Parking Areas are and shall be (a)subject to the exclusive control of the Shared Facilities Manager, (b)on an assigned or unassigned, first-come first-serve basis as may be determined by the Shared Facilities Manager in its sole discretion, and (c) subject to all of the terms and conditions of this Article 16 and any rules and regulations promulgated by the Shared Facilities Manager.The Shared Facilities Manager shall have the right to permit persons other than Owners of Elements to use the Parking Area or portions thereof. The Shared Facilities Manager shall have the further right, from time to time, to establish rules and regulations regarding the use of the Parking Area or portions thereof, including without limitation provisions for the involuntary removal of Declaration of Covenants -80- Page 1049 of 2461 (Reserved for Clerk of Court) any violating vehicles, and the fees/rates charged for use of the Parking Area and for services(if any) offered from the Parking Area.All fees collected by the Shared Facilities Manager for the use of the Parking Area or any portion thereof shall be retained by the Shared Facilities Manager and shall not constitute income or revenue of any other Owner (and/or be utilized to offset any Shared Facilities Costs). The Shared Facilities Manager may suspend any Owner's right to use parking space(s) during any period when payments for such parking space(s) from that Owner are delinquent. Temporary guest parking shall be permitted only as determined by the Shared Facilities Manager, and only within spaces and areas, if any,clearly designated for such purpose. 16.2 Requirement for Separate Agreement. No Element or the Owner thereof (or its Permitted Users) shall have the right to use any parking spaces within a Parking Area unless such Owner first reaches a written agreement with the Shared Facilities Manager with respect to,inter alia,the extent of use to be allowed such Owner(and its Permitted Users), whether such use will be on an assigned or unassigned, first come first serve basis, and the obligation of such Owner to contribute towards the expenses of the Parking Area.The rights and obligations of each Owner of an Element shall be subject to and on the terms and conditions set forth in the written agreement between such Shared Facilities Manager and such Owner, which written agreement may be in the form of a Supplemental Declaration or easement, assignment, instrument or other agreement of any kind. Such rights and obligations shall pass with title to such Element, Structure or Unit, unless otherwise provided in said written agreement. Declaration of Covenants -81- Page 1050 of 2461. (Reserved for Clerk of Court) 17. GENERAL PROVISIONS 17.1 Duration. The covenants and restrictions of this Declaration shall run with and bind The Properties, and shall inure to the benefit of and be enforceable by Shared Facilities Manager, Declarant(at all times) and the Owner of any land subject to this Declaration, and their respective legal representatives, heirs, successors and assigns, for a term of ninety-nine (99) years from the date this Declaration is recorded, after which time said covenants shall be automatically extended for successive periods of ten (10)years each unless an instrument signed by all of the then Owners of the Elements subject hereto and of 100% of the mortgagees thereof has been recorded, agreeing to revoke said covenants and restrictions; provided, however,that no such agreement to revoke shall be effective unless made and recorded three (3) years in advance of the effective date of such revocation, and unless written notice of the proposed agreement is sent to every Owner at least ninety(90) days in advance of any signatures being obtained. Notwithstanding the timing of the recordation of this Declaration,it is the express intent of the parties executing this Declaration, whether as Declarant or joining herein, that the terms and provisions hereof shall be deemed suspended and inapplicable until the "Commercial Release Date" (as defined in the Development Agreement). Prior to the Commercial Release Date,The Properties shall be governed by the terms and provisions of the Development Agreement. [ADD SPECIAL PROVISIONS IF NEEDED IF THE DEVELOPMENT AGREEMENT IS TERMINATED AFTER THE VESTING DATE BUT PRIOR TO THE COMMERCIAL COMPLETION DATE] 17.2 Notice. Any notice, demand, request, consent, approval or other communication to be sent to any Owner under the provisions of this Declaration shall be in writing and shall be given or made or communicated by (i) personal delivery, or (ii) a national and reputable overnight carrier, with a request that the addressee sign a receipt evidencing delivery, or (iii) United States registered or certified mail, return receipt requested with postage prepaid, or (iv) such other means as may be determined from time to time by Shared Facilities Manager, addressed to the last known address of the person who appears as Owner on the records of Shared Facilities Manager at the time of such delivery. Each Owner shall have the right to designate a different address from time to time by notice similarly given to Shared Facilities Manager, with a specific direction to update the records of Shared Facilities Manager, at least thirty (30) days before the effective date thereof. Any notice, demand, request, consent, approval or other communication which any Owner is required or desires to give or make or communicate to Declarant or Shared Facilities Manager shall be in writing and shall be given or made or communicated by (I) personal delivery, or (ii) a national and reputable overnight carrier, with a request that the addressee sign a receipt evidencing delivery, or (iii) United States registered or certified mail, return receipt requested with postage Declaration of Covenants -82- , Page 1051 of 2461 (Reserved for Clerk of Court) prepaid, or (iv) such other means as may be determined from time to time by Shared Facilities Manager,addressed to the following address: Declarant: [insert address] Shared Facilities Manager: [insert address] Declarant and Shared Facilities Manager shall have the right to designate a different address from time to time by notice given to Owners in the manner set forth above. 17.3 Enforcement. Without limiting the generality of Article 9, enforcement of these covenants and restrictions shall be accomplished by any proceeding at law or in equity against any person or persons violating or attempting to violate any covenant or restriction, either to restrain violation or to recover damages, and against the Elements to enforce any lien created by these covenants; and failure to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter. 17.4 Interpretation. The Article and Section headings have been inserted for convenience only,and shall not be considered or referred to in resolving questions and interpretation or construction. Unless the context requires a contrary construction, the singular shall include the plural and the plural the singular, and the masculine, feminine and neuter genders shall each include the others. All references to Articles, Sections, paragraphs, articles and Exhibits mean the Articles, Sections, paragraphs and Exhibits in (and, in the case of Exhibits, attached to) this Declaration unless another agreement is referenced. All Exhibits attached hereto are hereby incorporated herein by reference and made a part of this Declaration. 17.5 Severability. Invalidation of any one of these covenants or restrictions or any part, clause or word hereof,or the application thereof in specific circumstances, by judgment or court order shall not affect any other provisions or applications in other circumstances,all of which shall remain in full force,and effect. 17.6 Effective Date. This Declaration shall become effective upon its recordation in the Public Records of the County. 17.7 Amendment. In addition, but subject, to any other manner herein provided for the amendment of this Declaration, the covenants, restrictions, easements, charges and liens of this Declaration may be amended, changed or added to at any time and from time to time upon the execution and recordation of an instrument executed by Shared Facilities Manager and Declarant, for so long as it or its affiliate holds title to any Element or Structure affected by this Declaration; or alternatively, by an instrument Declaration of Covenants -83- Page 1052 of 2461 (Reserved for Clerk of Court) signed by Shared Facilities Manager and the Element Owners responsible for more than two-thirds of the Shared Facilities Costs, as allocated among the Element Owners pursuant to Section 15.3, provided that so long as any original signatory to this Declaration(whether as Declarant or by Joinder)or its affiliates owns any interest in any. portion of The Properties, the consent of such parties must be obtained. Notwithstanding anything herein contained to the contrary, the provisions of this Declaration affecting Shared Facilities Manager or the Shared Facilities Element (as determined in the sole discretion of Shared Facilities Manager) shall not be amended, modified or, as to any rights granted to Shared Facilities Manager or the Shared Facilities Element Owner, impaired and/or diminished,directly or indirectly, without the prior written consent of Shared Facilities Manager. In the event of any conflict between the provisions of the foregoing sentence and the provisions of any other Section of this Declaration,the provisions of the foregoing sentence shall prevail and govern. 17.8 Assignment Option. Shared Facilities Element Owner shall have the option, in its sole discretion, to establish a Florida not-for-profit corporation (the "Successor Corporation"), and to designate the Successor Corporation as the Shared Facilities Manager hereunder. Upon such designation by the Shared Facilities Element Owner,the Successor Corporation shall be Shared Facilities Manager for purposes of this Declaration, unless and until another entity shall be designated as the Shared Facilities Manager by Shared Facilities Element Owner in accordance with the terms of this Declaration. The sole members of the Successor Corporation shall be the Element Owners,whose membership interests and voting interests shall be equivalent to and in the same percentage as each Element Owner's proportionate share of Shared Facilities Costs under Section 15.3. At the time of such designation, Articles of Incorporation and Bylaws shall be prepared by the Shared Facilities Manager setting forth the operating procedures of the Successor Corporation, including procedures for the election of officers and directors and establishment of the Shared Facilities Costs budget. Without limiting the rights of the Shared Facilities Element Owner to convey the Shared Facilities Element to any third party at any time in its sole and absolute discretion, the Shared Facilities Manager may, at any time and at its sole option,elect to convey, by quit claim deed, the Shared Facilities Element to the Successor Corporation. Upon such conveyance, the Successor Corporation shall be deemed to have automatically accepted such conveyance and shall be the Shared Facilities Element Owner for purposes of this Declaration. From and after the conveyance of the Shared Facilities Element to the Successor Corporation, the Successor Corporation shall be responsible for any and all Taxes and/or Assessments attributable to the Shared Facilities Element and for the maintenance, insurance and administration of the Shared Facilities Element, and all expenses relating thereto shall be Shared Facilities Costs hereunder. 17.9 Cooperation. Each Owner, by acceptance of a deed therefor or other conveyance thereof, whether or not it shall be so expressed in such deed or other conveyance,shall Declaration of Covenants -84- Page 1053 of 2461 (Reserved for Clerk of Court) be deemed to covenant and agree, to cooperate in, and support, any and all zoning, administrative,governmental and/or quasi-governmental filings, applications, requests, submissions and other actions necessary or desirable(as determined by Shared Facilities Manager) for development and/or improvement of The Properties, including, without limitation,signing any required applications, plats,authorizations,approvals and the like as the owner of any portion of The Properties owned or controlled thereby when necessary or requested. 17.10 Standards for Consent, Approval and Other Actions. Whenever this Declaration shall require the consent, approval, completion, substantial completion, or other action by Declarant or its affiliates, or Shared Facilities Manager, such consent,approval or action may be withheld in the sole and unfettered discretion of the party requested to give such consent or approval or take such action, unless otherwise expressly provided herein, and shall not be deemed given unless granted in writing by the party receiving the request, and all matters required to be completed or substantially completed by Declarant or its affiliates shall be deemed so completed or substantially completed when such matters have been completed or substantially completed in the reasonable opinion of Shared Facilities Manager. Without limiting the foregoing, no consent or approval shall be granted if the matter or action that is'the subject of the consent or approval is not consistent with the Project Standard in the reasonable judgment of Shared Facilities Manager. Without limiting the generality of the foregoing, whenever the approval of the City is required, whether in its capacity as a municipal governing entity or in its capacity as the fee owner of any portion of The Properties, said approval or disapproval: (i) shall be commercially reasonable and made in good faith and with due diligence and (ii) may be evidenced by written approval from the City Manager,who shall be deemed to have the delegated authority (but not the obligation), after consultation with the City's Chief Financial Officer and City Attorney,to negotiate and execute same. 17.11 Easements. Formal language of grant or reservation with respect to easements, as appropriate, is hereby incorporated in the easement provisions hereof to the extent not so recited in some or all of such provisions. 17.12 No Public Right or Dedication. Nothing contained in this Declaration shall be deemed to be a gift or dedication of all or any part of the Shared Facilities to the public, or for any public use. 17.13 Constructive Notice and Acceptance. Every person who owns, occupies or acquires any right, title, estate or interest in or to any Element and/or Unit or other property located on or within The Properties,shall be conclusively deemed to have consented and agreed to every limitation, restriction, easement, reservation, condition, lien and covenant Declaration of Covenants -85- Page 1054 of 2461 (Reserved for Clerk of Court) contained herein, whether or not any reference hereto is contained in the instrument by which such person acquired an interest in, or rights with respect to, such Element, Structure or other property. 17.14 NO REPRESENTATIONS OR WARRANTIES. NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, HAVE BEEN GIVEN OR MADE BY DECLARANT, SHARED FACILITIES MANAGER,SHARED FACILITIES ELEMENT OWNER,OR ITS OR THEIR AGENTS OR EMPLOYEES IN CONNECTION WITH ANY PORTION OF THE SHARED FACILITIES OR ITS OR THEIR PHYSICAL CONDITION, ZONING, COMPLIANCE WITH APPLICABLE LEGAL REQUIREMENTS, MERCHANTABILITY,HABITABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR IN CONNECTION WITH THE SUBDIVISION, SALE, OPERATION, MAINTENANCE, COST OF MAINTENANCE, TAXES OR REGULATION THEREOF, EXCEPT (A)AS SPECIFICALLY AND EXPRESSLY SET FORTH . IN THIS DECLARATION OR IN DOCUMENTS WHICH MAY BE FILED BY DECLARANT FROM TIME TO TIME WITH APPLICABLE REGULATORY AGENCIES, AND (B)AS OTHERWISE REQUIRED BY LAW. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EACH OWNER RECOGNIZES AND AGREES THAT IN A STRUCTURE THE SIZE OF THAT ON THE PROPERTIES, IT IS TYPICAL TO EXPECT BOWING AND/OR DEFLECTION OF MATERIALS. ACCORDINGLY, INSTALLATION OF FINISHES MUST TAKE SAME INTO ACCOUNT. FURTHER, EACH OWNER RECOGNIZES AND AGREES THAT THE EXTERIOR LIGHTING SCHEME FOR THE BUILDING MAY CAUSE EXCESSIVE ILLUMINATION. ACCORDINGLY, INSTALLATION OF WINDOW TREATMENTS SHOULD TAKE SAME INTO ACCOUNT. AMONG OTHER ACTS OF GOD AND UNCONTROLLABLE EVENTS, HURRICANES AND FLOODING HAVE OCCURRED IN SOUTH FLORIDA AND THE PROPERTIES ARE EXPOSED TO THE POTENTIAL DAMAGES FROM FLOODING AND FROM HURRICANES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FROM STORM SURGES AND WIND-DRIVEN.RAIN. WATER OR OTHER DAMAGES FROM THIS OR OTHER EXTRAORDINARY CAUSES SHALL NOT BE THE RESPONSIBILITY OF DECLARANT, SHARED FACILITIES MANAGER, SHARED FACILITIES ELEMENT OWNER OR ANY OTHER PARTY. TO THE MAXIMUM EXTENT LAWFUL DECLARANT, FOR ITSELF AND AS THE INITIAL OWNER OF ALL OF THE ELEMENTS, HEREBY DISCLAIMS ANY AND ALL AND EACH AND EVERY EXPRESS OR IMPLIED WARRANTIES,WHETHER ESTABLISHED BY STATUTORY, COMMON,CASE LAW OR OTHERWISE, AS TO THE DESIGN, CONSTRUCTION, SOUND AND/OR ODOR TRANSMISSION, EXISTENCE AND/OR DEVELOPMENT OF MOLDS, MILDEW,TOXINS OR FUNGI, FURNISHING AND EQUIPPING OF THE PROPERTIES AND/OR SHARED FACILITIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF HABITABILITY, FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY, COMPLIANCE WITH PLANS, ALL WARRANTIES IMPOSED BY STATUTE AND ALL OTHER EXPRESS AND IMPLIED WARRANTIES OF ANY KIND OR CHARACTER. FURTHER,GIVEN THE CLIMATE AND HUMID CONDITIONS IN SOUTH FLORIDA, MOLDS,MILDEW,TOXINS AND FUNGI MAY EXIST AND/OR DEVELOP WITHIN THE ELEMENTS, UNITS AND/OR OTHER PORTIONS OF THE PROPERTIES. EACH OWNER IS HEREBY ADVISED THAT Declaration of Covenants -86- Page 1055 of 2461 (Reserved for Clerk of Court) CERTAIN MOLDS, MILDEW, TOXINS AND/OR FUNGI MAY BE, OR IF ALLOWED TO REMAIN FOR A SUFFICIENT PERIOD MAY BECOME, TOXIC AND POTENTIALLY POSE A HEALTH RISK. BY ACQUIRING TITLE TO A UNIT AND/OR ELEMENT, OR PORTIONS THEREOF, EACH OWNER, INCLUDING, WITHOUT LIMITATION, EACH UNIT OWNER, SHALL BE DEEMED TO HAVE ASSUMED THE RISKS ASSOCIATED WITH MOLDS, MILDEW, TOXINS AND/OR FUNGI AND TO HAVE RELEASED SHARED FACILITIES MANAGER, SHARED FACILITIES ELEMENT OWNER AND DECLARANT FROM ANY AND LIABILITY RESULTING FROM SAME. AS TO SUCH WARRANTIES WHICH CANNOT BE DISCLAIMED, AND TO OTHER CLAIMS, IF ANY,WHICH CAN BE MADE AS TO THE AFORESAID MATTERS,ALL INCIDENTAL AND CONSEQUENTIAL DAMAGES ARISING THEREFROM ARE HEREBY DISCLAIMED. ALL OWNERS, BY VIRTUE OF ACCEPTANCE OF TITLE TO THEIR RESPECTIVE ELEMENTS AND/OR STRUCTURES (WHETHER FROM DECLARANT OR ANOTHER PARTY) SHALL BE DEEMED TO HAVE AUTOMATICALLY WAIVED ALL OF THE AFORESAID DISCLAIMED WARRANTIES AND INCIDENTAL AND CONSEQUENTIAL DAMAGES. LASTLY, EACH OWNER, BY ACCEPTANCE OF A DEED OR OTHER CONVEYANCE OF AN ELEMENT AND/OR CONDOMINIUM UNIT, UNDERSTANDS AND AGREES THAT THERE ARE VARIOUS METHODS FOR CALCULATING THE SQUARE FOOTAGE OF AN ELEMENT AND/OR CONDOMINIUM UNIT. ADDITIONALLY, AS A RESULT OF IN THE FIELD CONSTRUCTION, OTHER PERMITTED CHANGES TO THE ELEMENT AND/OR CONDOMINIUM UNIT, AND SETTLING AND SHIFTING OF IMPROVEMENTS, ACTUAL SQUARE FOOTAGE OF AN ELEMENT AND/OR CONDOMINIUM UNIT MAY ALSO BE AFFECTED. BY ACCEPTING TITLE TO AN ELEMENT, THE APPLICABLE OWNER(S) SHALL BE DEEMED TO HAVE CONCLUSIVELY AGREED TO ACCEPT THE SIZE AND DIMENSIONS OF THE ELEMENT. DECLARANT DOES NOT MAKE ANY REPRESENTATION OR WARRANTY AS TO THE ACTUAL SIZE, DIMENSIONS OR SQUARE FOOTAGE OF ANY ELEMENT, AND EACH OWNER SHALL BE DEEMED TO HAVE FULLY WAIVED AND ' RELEASED ANY SUCH WARRANTY AND CLAIMS FOR LOSSES OR DAMAGES RESULTING FROM ANY VARIANCES. 17.15 Covenants Running With The Land. Anything to the contrary herein notwithstanding and without limiting the generality (and subject to the limitations) of Section 17.1 hereof, it is the intention of all parties affected hereby (and their respective heirs, personal representatives, successors and assigns) that these covenants and restrictions shall run with The Properties and with title to The Properties. Without limiting the generality of Section 17.5 hereof, if any provision or application of this Declaration would prevent this Declaration from running with The Properties as aforesaid, such provision and/or application shall be judicially modified, if at all possible, to come as Declaration of Covenants -87- Page 1056 of 2461 (Reserved for Clerk of Court) close as possible to the intent of such provision or application and then be enforced in a manner which will allow these covenants and restrictions to so run with The Properties; but if such provision and/or application cannot be so modified, such provision and/or application shall be unenforceable and considered null and void in order that the paramount goal of the parties (that these covenants and restrictions run with The Properties as aforesaid)be achieved. 17.16 Covenant in Lieu of Unity of Title. By joining in this Declaration, the City recognizes and agrees that this Declaration shall serve as the easement and operating agreement required by that certain Declaration of Covenant in Lieu of Unity of Title recorded against The Properties. Notwithstanding anything to the contrary, without first obtaining the prior written approval of the City, development of The Properties shall be limited to: (i) no more than sixty (60) residential units/apartments and (ii) commercial and recreational uses (within no more than 45,000 square feet of floor area), provided that the total floor area to be developed on The Properties shall not exceed 319,802 square feet. 17.17 CPI. Whenever specific dollar amounts are stated in this Declaration or any exhibits hereto, unless limited by Legal Requirements or the specific text hereof (or thereof), such amounts shall increase from time to time by application of a nationally recognized consumer price index chosen by Shared Facilities Manager (rounded, in the case of insurance, to the closes $1,000 increment), using the date this Declaration is recorded as the base year. In the event no such consumer price index is available, Shared Facilities Manager shall choose a reasonable alternative to compute such increases. In no event shall increases under this provision occur more frequently than the fifth (5th) anniversary of the recording of this Declaration and each fifth (5th) anniversary thereafter. 18. DISCLAIMER OF LIABILITY NOTWITHSTANDING ANYTHING CONTAINED HEREIN OR IN ANY OTHER DOCUMENT GOVERNING OR BINDING THE PROPERTIES (COLLECTIVELY, THE "GOVERNING DOCUMENTS"), NEITHER DECLARANT, SHARED FACILITIES MANAGER OR SHARED FACILITIES ELEMENT OWNER SHALL BE LIABLE OR RESPONSIBLE FOR, OR IN ANY MANNER A GUARANTOR OR INSURER OF, THE HEALTH, SAFETY OR WELFARE OF ANY OWNER, OCCUPANT OR USER OF ANY PORTION OF THE PROPERTIES INCLUDING, WITHOUT LIMITATION, RESIDENTS AND THEIR FAMILIES, GUESTS, INVITEES, AGENTS, SERVANTS, CONTRACTORS OR SUBCONTRACTORS OR FOR ANY PROPERTY OF ANY SUCH PERSONS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) IT IS THE EXPRESS INTENT OF THE GOVERNING DOCUMENTS THAT THE VARIOUS PROVISIONS THEREOF WHICH GOVERN OR REGULATE THE USES OF THE PROPERTIES HAVE BEEN WRITTEN, AND ARE TO BE INTERPRETED AND Declaration of Covenants -88- Page 1057 of 2461 (Reserved for Clerk of Court) ENFORCED, FOR THE SOLE PURPOSE OF ENHANCING AND MAINTAINING THE ENJOYMENT OF THE PROPERTIES AND THE VALUE THEREOF; (b) NEITHER DECLARANT, SHARED FACILITIES MANAGER NOR SHARED FACILITIES ELEMENT OWNER IS EMPOWERED NOR ESTABLISHED TO ACT AS AN ENTITY WHICH ENFORCES OR ENSURES THE COMPLIANCE WITH THE LEGAL REQUIREMENTS OF THE UNITED STATES, STATE OF FLORIDA, THE COUNTY AND/OR ANY OTHER GOVERNMENTAL AUTHORITY OR THE PREVENTION OF TORTIOUS ACTIVITIES;AND (c) ANY PROVISIONS OF THE GOVERNING DOCUMENTS SETTING FORTH THE USES OF ASSESSMENTS WHICH RELATE TO HEALTH,SAFETY AND/OR WELFARE SHALL BE INTERPRETED AND APPLIED ONLY AS LIMITATIONS ON THE USES OF ASSESSMENT FUNDS AND NOT AS CREATING A DUTY OF THE RECIPIENT OF SUCH ASSESSMENT FUNDS TO PROTECT OR FURTHER THE HEALTH, SAFETY OR WELFARE OF ANY PERSON(S), EVEN IF ASSESSMENT FUNDS ARE CHOSEN TO BE USED FOR ANY SUCH REASON. EACH OWNER (BY VIRTUE OF ACCEPTANCE OF TITLE TO ITS ELEMENT) AND EACH OTHER PERSON HAVING AN INTEREST IN OR LIEN UPON, OR MAKING ANY USE OF, ANY PORTION OF THE PROPERTIES (BY VIRTUE OF ACCEPTING SUCH INTEREST OR LIEN OR MAKING SUCH USES) SHALL BE BOUND BY THIS ARTICLE AND SHALL BE DEEMED TO HAVE AUTOMATICALLY WAIVED ANY AND ALL RIGHTS, CLAIMS, DEMANDS AND CAUSES OF ACTION AGAINST DECLARANT, SHARED FACILITIES MANAGER OR SHARED FACILITIES ELEMENT OWNER ARISING FROM OR CONNECTED WITH ANY MATTER FOR WHICH THE LIABILITY OF THE AFOREMENTIONED PARTIES HAS BEEN DISCLAIMED IN THIS ARTICLE. ***Signatures contained on the following page*** Declaration of Covenants -89- Page 1058 of 2461 (Reserved for Clerk of Court) EXECUTED as of the date first above written. Witnessed by: , a By: Name: Name: Title: Name: STATE OF )ss: COUNTY OF The foregoing instrument was acknowledged before me by means ofx❑ physical presence or❑ online notarization this _ day of 20_ by ,as of , a on behalf of the He/she personally known to me or produced as identification. Name: Notary Public,State of My commission expires: Commission No. Declaration of Covenants -90- Page 1059 of 2461 JOINDER OF MORTGAGEE , as mortgagee under that certain [Mortgage, Security Agreement and Fixture Financing Statement] dated as of and recorded on in Official Records Book , at Page of the Public Records of Miami-Dade County, Florida (the "Mortgage"), hereby consents to the terms, conditions, easements and provisions of the foregoing Declaration of Covenants, Restrictions and Easements for Three Hundred Alton (the "Master Declaration") and the recordation thereof, and agrees that the lien and effect of the Mortgage shall be and is subject and subordinate to the terms of the Master Declaration. Executed as of the day and year of the Master Declaration. 1 1 By: Name: Title: STATE OF SS: COUNTY OF ) The foregoing instrument was acknowledged before me by means of ll physical presence or o online notarization this _ day of , 201, by , as of , on behalf of said bank. He/she is personally known to me or produced as identification. Name: Notary Public,State of My commission expires: 'Commission No. Page 1060 of 2461 JOINDER OF CITY SECTION 17.17 HAS BEEN APPROVED AS TO FORM & LANGUAGE FOR EXECUTION TO SERVE AS A DECLARATION OF RESTRICTIVE COVENANTS IN LIEU OF UNITY OF TITLE ("COVENANT IN LIEU") AND AS THE EASEMENT AND OPERATING AGREEMENT REQUIRED BY THE COVENANT IN LIEU City Attorney Date: City Planning Director Date: Page 1061 of 2461 EXHIBIT"A" LEGAL DESCRIPTION OF THE PROPERTIES Page 1062 of 2461 EXHIBIT"B" LEGAL DESCRIPTION OF ELEMENTS COMMERCIAL ELEMENT: [Legal to be inserted] RESIDENTIAL ELEMENT: [Legal to be inserted] SHARED FACILITIES ELEMENT: The Properties,LESS AND EXCEPT,the Commercial Element and Residential Element,as each such Element is legally described and/or depicted in this Exhibit"B". Page 1063 of 2461 SCHEDULE D FORM OF PURCHASE MONEY PROMISSORY NOTE PURCHASE MONEY PROMISSORY NOTE $50,000,000.00 ,2021 Miami,Florida FOR VALUE RECEIVED, the undersigned MARINA PARK RESIDENTIAL, LLC, a Delaware limited liability company ("Borrower"), promises to pay to the order of THE CITY OF MIAMI BEACH, FLORIDA, a Florida municipal corporation ("Lender"), in lawful money of the United States of America, the principal sum of Fifty Million and No/100 Dollars ($50,000,000.00) (the "Loan"),upon the following terms and conditions: 1. Definitions. Capitalized terms not otherwise defined herein shall have the meanings assigned such terms in that certain Development Agreement 2020- - for the development of the Marina Park Project dated as of , 2020 by and between Lender,on the one hand, and Borrower and Marina Park Commercial, LLC, a Delaware limited liability company, collectively, jointly and severally, as "Developer" on the other hand (the "Development Agreement"), and any capitalized terms not otherwise defined herein or in the Development Agreement shall have the meanings assigned such terms on Schedule A attached hereto: 2. Principal Payments. Borrower shall make the following principal payments: (a) Five Million and No/100 Dollars($5,000,000.00)on January 1,2022; (b) Five Million and No/100 Dollars($5,000,000.00)on September 1,2022;and (c) The outstanding principal balance, and all accrued and unpaid interest, shall be due and payable on the date on which all Construction Commencement Conditions have been satisfied by Borrower(the"Maturity Date"). 3. Interest Payments. No interest shall accrue on the outstanding balance of the Loan until the date that is the earlier of(i)ninety(90)days after Borrower has obtained the Project Approvals,or(ii) the day that is fifty-four(54) months after the date hereof(the"Interest Commencement Date");provided, however, if Borrower fails to make any payment in accordance with Section 2(a) or Section 2(b) above, such payment shall accrue interest at the Default Rate in accordance with Section 10 hereof until paid, and if Borrower fails to make any payment in accordance with Section 2(c) or this Section 3 the outstanding principal balance of the Loan shall accrue interest at the Default Rate in accordance with Section 10 hereof until paid. From and after the Interest Commencement Date through the Maturity Date, interest shall accrue at the applicable Interest Rate and shall be paid by Borrower to Lender on the Maturity Date. Interest will be computed for the actual number of days elapsed on the basis of a month consisting of 30 days and a year consisting of 360 days. 4. Method of Payments. Borrower shall not prepay the indebtedness evidenced hereby, in whole or in part, except in accordance with Section 2(a) and Section 2(b) hereof and except for application of Proceeds to the Loan as set forth in Section 1.4 of the Mortgage. Principal and interest will be payable to Lender by wire transfer of immediately available funds to the Lender's account pursuant to wire instruction delivered by Lender to Borrower in writing. Page 1064 of 2461 5. Application of Payments. Principal payments described in Section 2(a) and Section 2(b) hereof shall be applied in reduction of the outstanding principal balance due hereunder. Any other payments made by Borrower will be applied first to any Default Interest, then in reduction of interest then due at the applicable Interest Rate, and any amount remaining after such payments of Default Interest and interest will be applied in reduction of the outstanding principal balance due hereunder. 6. Extensions of Time.Notwithstanding the foregoing or anything to the contrary contained in this Note or any other Loan Document, the Interest Commencement Date and the Maturity Date each shall be tolled up to forty two(42)months in connection with Lawsuits and Marina Lawsuits provided the same are being diligently pursued in good faith and shall be reasonably extended for(i) an Unavoidable Delay in accordance with the Development Agreement;and/or(ii) Seller Delays,if applicable. 7. Purchase Agreement and Mortgage. This Note is given in partial payment of the purchase price due from Borrower to Lender pursuant to the Purchase and Sale Agreement(the"Purchase Agreement")dated as of ,2020,pursuant to which Borrower has purchased the a Residential Parcel from Lender; and this Note is secured by a purchase money mortgage (the "Mortgage") encumbering the Residential Parcel. 8. Defaults and Remedies. Upon the occurrence of any of the following defaults (each, an "Event of Default"): (a) Borrower fails to pay any amount of principal and interest, or any part thereof, under this Note within three(3)Business Days after the due date thereof;or (b) Any other Material Event of Default;or (c) A Transfer that is not a Permitted Transfer;or (d) Borrower fails to pay any Taxes in accordance with Section 1.4 of the Mortgage and such failure continues for a period of 30 days thereafter, subject to Borrower's right to contest same as set forth therein then the principal sum,all interest accrued thereon and all charges and fees which are part of the Loan and any other sums advanced by Lender under this Note and the other Loan Documents will, at the option of Lender, and without notice, demand or presentment for payment to Borrower or any other person or entity, at once become due and payable and may be collected forthwith, regardless of the stipulated Maturity Date, anything herein or in the other Loan Documents to the contrary notwithstanding, all without any relief whatsoever from any valuation or appraisement laws, and payment thereof may be enforced and recovered in whole or in part at any time by one or more of the remedies provided to Lender in this Note or any of the other Loan Documents,or by such other rights and remedies which Lender may have at law, in equity or otherwise. Interest will accrue on the principal sum, from the date of any Event of Default (so long as such Event of Default continues), regardless of whether or not there has been an acceleration of the payment of principal as set forth herein,at the Default Rate. 9. Costs of Collection. If this Note is placed in the hands of an attorney for collection, by suit or otherwise, Borrower will pay all reasonable costs of collection and attorneys' fees incurred by Lender, including, but not limited to, reasonable attorneys' fees incurred in all judicial, bankruptcy, reorganization, administrative, appeals or other proceedings in which Borrower (or any permitted successor or assign hereof)appear as debtors. Page 1065 of 2461 10. Default Interest. Notwithstanding anything to the contrary set forth herein: (a) from and after the date of any default under Section 2(a) or Section 2(b) hereof, such past due payment shall bear interest at the Default Rate until paid in full; and(b) from and after the Maturity Date or the date of any default (in the event of acceleration of the indebtedness evidenced hereby by Lender as expressly permitted hereunder by reason of default by Borrower hereunder or otherwise), the entire indebtedness due hereunder and all other charges payable hereunder, will bear interest ("Default Interest") at the Default Rate. 11. Lender's Limitation of Liability. (a) Lender is acting hereunder solely in its proprietary capacity, as the seller of the Residential Parcel and recipient of the Note and Mortgage to secure Borrower's obligations to pay Lender the purchase price for the Residential Parcel as described herein and in the Note and other Loan Documents. (b) Any tort liability to which the Lender is exposed under this Note shall be limited to the extent permitted by applicable law and subject to the provisions and monetary limitations of Section 768.28, Florida Statutes, as may be amended, which statutory limitations shall be applied as if the parties had not entered into this Note, and Lender expressly does not waive any of its rights and immunities thereunder. (c) Lender will not in any event whatsoever be liable for any injury or damage to Borrower(except to the extent caused by the gross negligence or willful misconduct of any City Parties) or to any other Person happening on, in or about the Residential Parcel and its appurtenances, nor for any injury or damage to the Residential Parcel or to any property belonging to Borrower(except to the extent caused by the gross negligence or willful misconduct of any City Parties) or to any other Person which may arise from any other cause whatsoever (except to the extent caused by the gross negligence or willful misconduct of any City Parties). (d) No member, official, representative, or employee of Lender shall have any personal interest,direct or indirect, in this Note or any other Loan Documents, nor shall any such member, official, representative or employee participate in any decision relating to this Note or any other Loan Documents which affects his or her personal interest or the interest of any corporation, partnership or association in which he or she is, directly or indirectly, interested. No member, official, elected representative or employee of Lender shall be personally liable to Borrower or any successor in interest in the event of any default or breach by Lender. 12. Assumption of Obligations. The obligations under this Note may not be assumed by any Person except to a transferee of the entire Residential Parcel in connection with a Permitted Transfer without Lender's prior written consent, which may be granted or withheld in Lender's sole discretion; provided that any such transferee shall assume in writing Borrower's obligations hereunder and deliver a copy of such assumption to the City within 30 days after the occurrence of such Permitted Transfer. 13. Certain Waivers. Borrower and any endorsers hereof severally waive presentment, demand,protest and notice of protest, demand, dishonor and nonpayment.and agree that Lender,without releasing the liability of Borrower or any endorser hereof, may grant extensions or renewals hereof in whole or in part, from time to time, without notice to either of them, successively or otherwise, and for any term or terms and Lender will not be liable for, or prejudiced by, the failure to collect or a lack of diligence in bringing suit under this Note or any renewals or extensions hereof. No failure by Lender to exercise,nor delay in exercising, any right or remedy shall operate as a waiver of such right or remedy or as a waiver of any default. Page 1066 of 2461 14. Usury. It is the intention of the parties to conform strictly to the usury and other laws relating to interest from time to time in force,and all agreements between Borrower and Lender, whether now existing or hereafter arising and whether oral or written, are hereby expressly limited so that in no contingency or event whatsoever, whether by acceleration of maturity hereof or otherwise, will the amount paid or agreed to be paid to Lender, or collected by Lender or for the use, forbearance or detention of the money to be loaned hereunder or otherwise, or for the payment or performance of any covenant or obligation contained herein, or in any other Loan Documents or in any other security agreement given to secure the indebtedness of Borrower to Lender, or in any other document evidencing, securing or pertaining to the indebtedness evidenced hereby, exceed the maximum amount permissible under applicable usury or such other laws (the "Maximum Amount"). If under any circumstances whatsoever fulfillment of any provision hereof or of any of the other Loan Documents or any other document,at the time performance of such provision is due, involves exceeding the Maximum Amount, then jp facto, the obligation to be fulfilled will be reduced to the Maximum Amount. For the purposes of calculating the actual amount of interest paid and/or payable hereunder, in respect of laws pertaining to usury or such other laws, all sums paid or agreed to be paid to the Lender for the use, forbearance or detention of the indebtedness of Borrower evidenced hereby, outstanding from time to time, to the extent permitted by applicable law will be amortized, prorated, allocated and spread from the date of disbursement of the proceeds of this Note until payment in full of all of such indebtedness, so that the actual rate of interest on account of such indebtedness is uniform through the term hereof. if under any circumstances Lender ever receives an amount deemed interest by applicable law which would exceed the Maximum Amount, such amount that would be excessive interest under applicable usury laws or such other laws will be deemed a payment in reduction of the principal sum without premium or penalty and will be so applied or will be applied to the principal amount of other indebtedness secured by the Mortgage and not to the payment of interest, or if such excessive interest exceeds the principal sum and any other indebtedness of Borrower in favor of Lender the excess will be deemed to have been a payment made by mistake and will be refunded to Borrower or to any other person making such payment on Borrower's behalf. 15. Relationship of Borrower and Lender. Borrower and Lender intend that the relationship created under this Note and all other Loan Documents be solely that of debtor and creditor or mortgagor and mortgagee, as the case may be. Nothing herein or in the Mortgage is intended to create a joint venture, partnership, tenancy-in-common, or joint tenancy relationship between Borrower and Lender, nor to grant Lender any interest in the Residential Parcel other than that of creditor or mortgagee, it being the intent of the parties hereto that Lender will have no liability whatsoever for any losses generated by or incurred withrespect to the Residential Parcel nor'-will Lender have any control over the day-to-day management or operations of the Residential Parcel. 16. Time. It is specifically agreed that time is of the essence of this Note and of each provision in which time is an element. If the date for'the performance of any term,provision or condition (monetary or otherwise) under this Note falls on a day other than a Business Day, the date for the performance of such term, provision or condition will be extended to the next succeeding Business Day, with interest on the principal sum at the applicable Interest Rate provided in this Note to such next succeeding business day if such term, provision or condition results in the extension of any monetary payment due to Lender. 17. Governing Law. This Note shall be governed by and construed in accordance with the laws of the State of Florida. 18. Forum. Borrower hereby irrevocably submits generally and unconditionally for itself and in respect of its property to the jurisdiction of any state court (in Miami-Dade County) or any United States federal court sitting in the Southern District of Florida, over any dispute. Borrower hereby Page 1067 of 2461 irrevocably waives, to the fullest extent permitted by law, any objection that Borrower may now or hereafter have to the laying of venue in any such court and any claim that any such court is an inconvenient forum. Nothing herein shall affect the right of Lender to serve process in any manner permitted by law or limit the right of Lender to bring proceedings against Borrower in any other court or jurisdiction. 19. Partial Invalidity. If any provision or term of this Note or the application thereof to any Person or circumstances is determined to be unenforceable, such provision or term shall be reformed and enforced to the maximum extent permitted by law. If it cannot be reformed, it will be stricken from and construed for all purposes not to constitute a part of this Note, and the remaining portions and terms of this Note shall remain in full force and effect and shall, for all purposes, constitute this entire Note. 20. Payments. Acceptance by Lender of partial payment of any sum due hereunder will not constitute an accord and satisfaction, and Borrower will remain liable for the entire sum due; and no memorandum, restrictive endorsement or other legend on any instrument by which payment is made hereunder will affect the rights and liabilities of Lender and Borrower hereunder or under the other Loan Documents. 21. Headings. The paragraph and section headings that appear in this Note are for purposes of convenience of reference only and are not to be construed as modifying, explaining, restricting or affecting the substance of the paragraphs and sections in which they appear. 22. Waiver of Trial by Jury. TO THE MAXIMUM EXTENT PERMITTED BY LAW, BORROWER AND LENDER, BY ITS ACCEPTANCE HEREOF, EACH HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT EITHER OF THEM OR THEIR HEIRS, PERSONAL REPRESENTATIVES, SUCCESSORS OR ASSIGNS MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS NOTE OR ANY LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF BORROWER OR LENDER THIS PROVISION IS A MATERIAL INDUCEMENT TO BORROWER ENTERING INTO THIS NOTE AND TO THE LENDER ACCEPTING IT. BORROWER AND LENDER ARE EACH HEREBY AUTHORIZED TO FILE A COPY OF THIS SECTION IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER OF-JURY TRIAL. [Signature on following page] Page 1068 of 2461 IN WITNESS WHEREOF, the undersigned has caused this Note to be executed and delivered by its duly authorized officer as of the date first written above. MARINA PARK RESIDENTIAL, LLC, a Delaware limited liability company By: Name: Title: Page 1069 of 2461 SCHEDULE A DEFINITIONS (a) "Default Interest"has the meaning set forth in Section 10. (b) "Event of Default"has the meaning set forth in Section 8 hereof. (c) "Interest Rate"means, for the period from the Interest Commencement Date through the day prior to the second anniversary thereof, an interest rate equal to one percent (1.0%) above the LGIP Rate, and commencing on the second anniversary of the Interest Commencement Date and on each anniversary thereafter, increasing by 0.5% above the Interest Rate previously in effect during the prior twelve(12)month period,until the Maturity Date. (d) "LGIP Rate" means the average daily rate of interest published by the Florida Cooperative Liquid Assets Securities System (FLCLASS) for Local Government Investment Pool, calculated on the first Business Day of each month, or if such rate is'no longer published, a comparable rate of interest selected by Lender for short-term, liquid investments by local governments. Notwithstanding the foregoing,for purposes hereof,the LGIP Rate shall never be less than 0%. (e) "Loan Documents" means this Note and the Mortgage, each as may be amended from time to time in accordance with their respective terms. (f) "Maturity Date"has the meaning set forth in Section 2(c). (g) "Maximum Amount"has the meaning set forth in Section 14. (h) "Mortgage"has the meaning set forth in Section 7. (1) "Note"means this Purchase Money Promissory Note. (j) "Permitted Transfer"means a "Permitted Transfer"under the following sections of the Development Agreement: Sections 5.3(b)(i), 5.3(b)(ii) solely if required by the Mezzanine Lender, 5.3(b)(iii) solely as it relates to the Mezzanine Lender, 5.3(b)(v) solely as it relates to the Mezzanine Lender, 5.3(b)(vi), 5.3(b)(vii), 5.3(b)(viii) and 5.3(b)(ix) solely as it relates to the Mezzanine Lender; provided,that,except for Transfers under Sections 5.3(b)(iii),(v),(vi)and(vii),no such Transfer shall be effective unless and until executed copies of the documents that convey title to the transferred interest are delivered to Lender within thirty(30)days after the occurrence of such Transfer. (k) "Proceeds"shall have the meaning set forth in the Mortgage. (1) "Purchase Agreement"has the meaning set forth in Section 7. (m) "Residential Parcel"shall have the meaning assigned such term in the Mortgage. (n) "Taxes"shall have the meaning set forth in the Mortgage. (o) "Transfer"means any sale, assignment or conveyance, in one or a series of transactions in the nature of a sale, assignment of conveyance, of(i)the Residential Parcel from Borrower to another Person,(ii)any legal or beneficial interest in the Project,or any part thereof or (iii)any direct or indirect ownership interest in Borrower; provided, however, pledges by an owner of Borrower of profits and the right to receive distributions and unreturned capital in connection with ownership interests of the l Schedule D Page 1070 of 2461 Borrower shall be permitted hereunder provided that the lender receiving such pledge does not have a mortgage on the Residential,Parcel or a pledge of equity interests of Borrower and cannot take ownership or control of either the Borrower or the Residential Parcel, has no rights under this Note or the Mortgage, such transfer of beneficial interest does not affect in any manner any of the Lender's rights under this Note or the Mortgage, and no such Transfer shall be effective unless and until executed copies of the relevant Transfer documents are delivered to Lender within thirty (30) days after the occurrence of such Transfer). • Schedule D Page 1071 of 2461 SCHEDULE E FORM OF PURCHASE MONEY MORTGAGE (attached hereto) THE INSTRUMENT PREPARED BY AND SHOULD BE RETURNED TO: Lauren M.Hunt Alvarez&Diaz-Silveira LLP 355 Alhambra Circle,Suite 1450 Coral Gables,FL 33134 PURCHASE MONEY MORTGAGE AND SECURITY AGREEMENT THIS PURCHASE MONEY MORTGAGE AND SECURITY AGREEMENT (this "Mortgage") dated as of , 2021, made by MARINA PARK RESIDENTIAL, LLC, a Delaware limited liability company ("Mortgagor"), having its principal place of business'at 3310 Mary Street, Suite 302, Coconut Grove, Florida 33133, as mortgagor, to THE CITY OF MIAMI BEACH, FLORIDA, a Florida municipal corporation("Mortgagee"), having an office at 1700 Convention Center Drive,4`h Floor,Miami Beach,FL 33139,as mortgagee and secured party. PRELIMINARY STATEMENT (1) Contemporaneously herewith Mortgagor has purchased from Mortgagee, pursuant to the Purchase and Sale Agreement (the "Purchase Agreement") dated as of , 2020, that certain Residential Parcel,as hereinafter defined,situated in Miami-Dade County, Florida, in partial payment for which Mortgagor has requested Mortgagee to make a purchase money loan (the "Load") to Mortgagor in the aggregate original principal amount of Fifty Million and No/100 Dollars ($50,000,000.00) and Mortgagor has executed and delivered to Mortgagee a purchase money promissory note(the"Note"),of even date herewith, in the amount of the Loan. (2) Mortgagee requires as a condition precedent to the making of the Loan to Mortgagor that Mortgagor execute and deliver this Mortgage to Mortgagee. (3) Capitalized terms not otherwise defined herein shall have the meanings assigned such terms in that certain Development Agreement 2020- - for the development of the Marina Park Project dated as of ,2020 by and between Mortgagee,on the one hand, and Mortgagor and Marina Park Commercial, LLC, a Delaware limited liability company, collectively, jointly and severally,as"Developer"on the other hand(the"Development Agreement"). Schedule E Page 1072 of 2461 NOW,THEREFORE, in consideration of the benefits accruing to Mortgagor, the receipt and sufficiency of which are hereby acknowledged, and in order to secure payment of the indebtedness of $50,000,000.00 evidenced by the Note, Mortgagor hereby grants, mortgages, bargains, sells, transfers, conveys and assigns to Mortgagee, under and subject to the terms and conditions hereinafter set forth, all of its estate, right, title and interest, whether now owned or hereafter acquired, in and to the following described property(collectively,the"Property"): All the parcel of air and the real property located in Miami-Dade County, Florida, which is legally described in Exhibit"A"attached hereto and made a part hereof(the"Residential Parcel"); TOGETHER WITH all right,title and interest of Mortgagor, if any, in and to the land lying in the bed of any street, road or avenue,open or proposed, in front of or adjoining the Residential Parcel to the center line thereof,all claims whatsoever of Mortgagor with respect to the Residential Parcel,either in law or in equity, all options to purchase the Residential Parcel or any portion thereof or interest therein, and any greater estate in the Residential Parcel, and all additions to and proceeds of the foregoing(the aforesaid rights and the Residential Parcel are,collectively,the"Premises"); TOGETHER WITH all machinery, apparatus, equipment, fittings, fixtures, appliances, and articles of personal property of every kind and nature whatsoever, owned by Mortgagor and now or hereafter located in or upon the Residential Parcel or any part thereof, and used or useable in connection with any present or future operation of said Residential Parcel and the improvements located thereon and now owned or hereafter acquired by Mortgagor. Without limiting the foregoing, the Mortgagor hereby grants to the Mortgagee a security interest in all of its present and future "equipment," "inventory", "general intangibles" and "accounts" (as said quoted terms are defined in the Uniform Commercial Code of the State of Florida) located at the Premises and the Mortgagee will have, in addition to all rights and remedies provided herein, and in any other agreements, commitments and undertakings made by the Mortgagor to the Mortgagee, all of the rights and remedies of a "secured party" under the said Uniform Commercial Code(all such items described in this section,collectively,"Personal Property"). TOGETHER WITH all of Mortgagor's rights,title and interest in and to any and all awards or payments (to be disbursed and applied as hereinafter provided), including interest thereon, and the right to receive the same, which may be made with respect to the Premises as a result of(a)the exercise of the right of eminent domain,(b)the alteration of the grade of any street, or(c)any other injury to or decrease in the value of the Premises,to the extent of all amounts which may be secured by this Mortgage at the date of receipt of any such award or payment, and of the reasonable attorneys' fees, costs and disbursements incurred by Mortgagee in connection with the collection of such award or payment. Mortgagor agrees to execute and deliver, from time to time, such further instruments as may be requested by Mortgagee to confirm such assignment to Mortgagee of any such award or payment. TOGETHER WITH the right,in the name and on behalf of Mortgagor,to appear in and defend any action or proceeding brought with respect to the Premises and to commence any action or proceedings to protect the interest of Mortgagee in the Premises; TOGETHER WITH, all and singular, the tenements, hereditaments and appurtenances thereunto belonging or in any wise appertaining to the Premises, including all right, title and interest of Mortgagor in and to the underlying title of any road or other dedicated area abutting the Premises and all after- acquired title of Mortgagor in the Premises; TOGETHER WITH all extensions, improvements, betterments, substitutes and replacements of, and all additions and appurtenances to,the Premises and the Personal Property,hereafter acquired by or released to the Mortgagor or constructed,assembled or placed on the Premises,and all conversions of the security Schedule E Page 1073 of 2461 constituted thereby, immediately upon such acquisition, release, construction, assembling, placement or conversion, as the case may be, and in each such case, without any further mortgage, conveyance, assignment or other act by the Mortgagor, will become subject to the lien of this Mortgage as fully and completely, and with the same effect, as though now owned by the Mortgagor and specifically described therein. TO HAVE AND TO HOLD as provided herein the above granted and described Property unto the Mortgagee and to its successors and assigns forever, and Mortgagor hereby binds itself and its successors and assigns to warrant and forever defend the Property unto the Mortgagee, its successors and assigns against the claim or claims of all Persons claiming or to claim the same,or any part thereof. THIS MORTGAGE is given to secure the payment of the amounts due under the Note and the performance of all obligations by Mortgagor contained herein (all of said obligations and agreements of Mortgagor hereinafter collectively referred to as the"Obligations"). Each and every term and provision of the Note is hereby incorporated by reference herein as though set forth in full and shall be considered as part of this Mortgage. AND TO PROTECT THE SECURITY OF THIS MORTGAGE, Mortgagor cov