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2001-24495 RESO RESOLUTION NO. 2001-24495 A RESOLUTION OF THE MAYOR AND MEMBERS OF CITY COMMISSION AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE A LEASE AGREEMENT BETWEEN TRG-SSDI, LTD., THE CITY OF MIAMI BEACH AND THE MIAMI BEACH REDEVELOPMENT AGENCY TO LEASE, NOT TO EXCEED, 108 PARKING SPACES IN THE GARAGE AT THE MURANO AT PORTOFINO, PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the Miami Beach Redevelopment Agency ("RDA"), entered into an agreement dated November 7, 1995 (the "Development Agreement"), with West Side Partners, Ltd., a Florida limited partnership ("West Side"), East Coastline Development Ltd., a Florida limited partnership, 404 Investments, Ltd., a Florida limited partnership, Azure Coast Development, Ltd., a Florida limited partnership, Beachwalk Development Corporation, a Florida corporation, Porto fino Real Estate Fund, Ltd., a Florida limited partnership, St. Tropez Real Estate Fund, Ltd., a Florida limited partnership, and Sun & Fun, Inc., a Florida corporation (collectively the "Portofino Entities") and the City of Miami Beach, Florida (the "City"); and WHEREAS, pursuant to the Development Agreement, the City, RDA and West Side entered into a Parking Agreement, dated as of January 10, 1996, pursuant to which West Side would provide parking spaces, laundry and bathroom facilities for the Miami Beach Marina in a building to be constructed on the parcel known as SSDI South (the "Parking Agreement"); and WHEREAS, the Parking Agreement survived the 1995 Settlement Agreement with Portofino and was further amended by the 1998 Settlement Agreement approved on September 23, 1998, and provided for parking to be constructed on both SSDI-South and SSDI-North; and WHEREAS, the aforestated Parking Agreement also provides for the Agency to pay the capital costs, base rent payment and pro-rata share of operating expenses for 108 parking spaces on SSDI-South; and WHEREAS, in accordance with the Parking Agreement and 1998 Settlement Agreement, TRG-SSDI, Ltd., a Florida limited partnership, as successor developer ofa portion of the parcel known as SSDI South, is providing a lease for 108 parking spaces to be located within the Murano at Portofino Parking Garage at a capital cost of $1,149,336, which is based on $lO,OOO/space, adjusted for CPI-U; and WHEREAS, while the lease provides for 108 parking spaces, the final number of parking spaces, due to design constraints, will be between 102-108 parking spaces, and upon completion and execution, the lease will be modified to reflect the actual number of spaces on-site and available; and WHEREAS, according to the Lease Agreement, the CitylRDA is required to prepay "Base Rent" to TRG-SSDI which is defined as: (a) a "Purchase Price Component" defined as the $1,149,336 capital cost for the improvements, and (b) a single installment of base rent of$lOl for the initial 101-year lease term, and will pay the proportionate share of operating expenses in advance, on a monthly basis, which share is estimated to be $6,000; and WHEREAS, in order to determine the cost estimate of the share of taxes, insurance and maintenance, there is no separate tax assessment for the Murano Garage area space, nor has Miarni- Dade County, at this time, determined that a separate tax assessment could be obtained since the property is going to be subject to a condominium with interest shares in the total value of the property; and WHEREAS, should Miami-Dade County determine in the future that this area could be subject to a separate assessed value and submit a bill, that would become the City's responsibility and the methodology for reimbursement would be determined at that time; and WHEREAS, the $6,000 figure represents the cost of insurance, which is based on the percentage of construction costs, approximately 2.5% of the total building as the area used by the parking spaces for the marina; and WHEREAS, the total insurance premium for the tower is $240,000 so that the RDNCity's contribution to insurance for the first year would be $6,000; and WHEREAS, the $6,000 in proportionate operating expenses may be further reduced as a result of the City's Fourth Amendment to the Marina Lease Agreement, which provides for the City and the Marina Operator to enter into a garage management or operating agreement that further provides for the Marina lessee to be responsible for routine security, maintenance and insurance for the operation of the Marina parking; and WHEREAS, in accordance with the South Pointe Redevelopment Plan, the RDA is to provide and maximize the parking facilities in the district. NOW THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Commission herein authorize the Mayor and City Clerk to execute a Lease Agreement between TRG-SSDI, Ltd., the City of Miami Beach and the Miami Beach Redevelopment Agency to Lease, not to exceed, 108 parking spaces in the garage at the Murano at Porto fino, providing for an effective date. PASSED and ADOPTED this 27th day of June, 2001. ,;1 MAYOR 1d:rf~ CITY CLERK APPROYEDM1G FORM &LANGUAGI & FORlDCEcunON JMG/CMC/rar T:\AGENDA\2001\1UN2701\REGULAR\PORT_PKG.RES ~ b-~-(?/ ~ ~~ Date .' ...... :"~. . . I' - ..., ) .... I .' '._" . ._ ,d MURANO o I H~Y 17 PM 4: 26 at Ponofino .' '-'.."" ',' ~. , , . .-.' ,...- 1"', -' ,': "'~ 1,,;;- r i..... L.. May 16,2001 Ms. Christina M. Cucrvo Assistant City Manager City of Miami Beach 1700 Convention Center Drive Miami Beach, FL 33139 Ms. Alexandra RolandelIi Redevelopment Agency City of Miami Beach 1700 Convention Center Drive Miami Beach, FL 33139 Mr. Robert W. Christoph, President Miami Beach Marina 300 Alton Road Miami Beach, FL 33139 RE: Murano at Porto fino Dear Ms. Cuervo, Ms. RolandelIi and Mr. Christoph: Enclosed herewith please find plans tor the first floor parking garage for Murano at .Portofino with the spaces: to be utilized by the ma~ina operator. These plans were previously supplied to you on October 11,2000. We are also including a set of specitications that were originally delivered to Mr. Chris:toph by Tom Daly on May 4. We need to conclude a lease for this space as soon as possible. We are already 40% completed on the entire garage .tructure. Ms. Cuervo had asked for a cost estimate of the marina's share of taxes, insurance and maintenance. To that end, we have no separate tax assessment for this space, nor has Miami-Dade County, at this time, determined that one could be obtained since the property is going to be subject to a condominium with interest shares in the total value of the property. Should Miami-Dade County determine in the future that this area could he subject to a separate assessed value and submit a bilI, that would become the City's responsibility and the Association for the condominium woull\ determine thc methodology for reimhursement. As to the insurance figure, we have attribnted, based on the percentage of construction costs, approximately 2.5% of the total building as the area used by the parking spaces for the marina. The total insurance premium for the tower is $240,000 so that the marina/City's contribution to insurance for the first yea~ wouid be $6,000. We bave designed those ligh!s that are not required for emergency lighting by the fire department on a separate meter. Those lights required for emergency are included in the Association's house panel and may not be isolated and the cost for such operation is de minim us. iOOO South POinte Drive. Miami Beach. FI_~.id3 33139. Tel 305.604.2088.1.877_604,2088. Fax 305_604,2050 T"'3'J '::=::i1 Should you have questions with re!(ard to the enclosures. please do not hesitat~ to call. Sincerely, .. r'l ) 6..C'-~""'7'- '~hl ,//. . .. /1 -- / AOY' E M. BRONSON /./Projeet Director v ee: Tony Albanese Tom Daly Matt Gorson ~. .. CITY OF MIAMI BEACH CITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH, FLORIDA 33139 http:\\ci.miami-beach.fl.us COMMISSION MEMORANDUM NO. LfJI-OL TO: Mayor Neisen O. Kasdin and Members of the City Commission Jorge M. Gonzalez c.p..5: l..- City Manager 'I-t DATE: Jnne 27, 2001 FROM: SUBJECT: A RESOLUTION OF THE MAYOR AND MEMBERS OF CITY COMMISSION AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE A LEASE AGREEMENT BETWEEN TRG-SSDI, LTD., THE CITY OF MIAMI BEACH AND THE MIAMI BEACH REDEVELOPMENT AGENCY TO LEASE, NOT TO EXCEED, 108 PARKING SPACES IN THE GARAGE AT THE MURANO AT PORTOFINO, PROVIDING FOR AN EFFECTIVE DATE. RECOMMENDATION: Adopt the Resolution. BACKGROUND: The Miami Beach Redevelopment Agency ("RDA"), entered into an agreement dated November 7, 1995 (the "Development Agreement"), with West Side Partners, Ltd., a Florida limited partnership ("West Side"), East Coastline Development Ltd., a Florida limited partnership, 404 Investments, Ltd., a Florida limited partnership, Azure Coast Development, Ltd., a Florida limited partnership, Beachwalk Development Corporation, a Florida corporation, Porto fino Real Estate Fund, Ltd., a Florida limited partnership, St. Tropez Real Estate Fund, Ltd., a Florida limited partnership, and Sun & Fun, Inc., a Florida corporation (collectively the "Portofino Entities") and the City of Miami Beach, Florida (the "City"). Pursuant to the Development Agreement, the City, RDA and West Side entered into a Parking Agreement, dated as of January 10, 1996, pursuant to which West Side would provide parking spaces, laundry and bathroom facilities for the Miami Beach Marina in a building to be constructed on the parcel known as SSDI South (the "Parking Agreement"). The Parking Agreement survived the 1995 Settlement Agreement with Portofino and was further amended by the 1998 Settlement Agreement approved on September 23, 1998, and provided for parking to be constructed on both SSDI-South and SSDI-North. The aforestated Parking Agreement survives the 1995 Settlement Agreement with Porto fino and provides for the Agency to pay the capital costs, base rent payment and pro-rata share of operating expenses for 108 parking spaces on SSDI -South, Together with the approval of the 1998 Settlement Agreement, the City Commission approved a Lease Agreement for 115 parking spaces, laundry and bathroom facilities in the Yacht Club at Portofino. On March 17, 1999, the Agency Board appropriated funding for the capital costs and proportionate share of operating expenses. AGENDA ITEM R7D fQ-J.. 7-(!)/ DATE June 27,2001 Commission Memorandum TRG-SSDL Ltd. Agreement Page 2 In accordance with the Parking Agreement and 1998 Settlement Agreement, TRG-SSDI, Ltd., a Florida limited partnership, as successor developer ofa portion of the parcel known as SSDI South, is providing a lease for 108 parking spaces to be located within the Murano at Porto fino Parking Garage at a capital cost of$1,149,336, which is based on $lO,OOO/space, adjusted for CPI-U. No laundry or bathroom facilities will be provided in this facility. Attached for approval, is the proposed Lease Agreement for the parking spaces at the Murano, by and among TRG-SSDI, Ltd., the City and the RDA, that mirrors the Lease Agreement with the Yacht Club at Porto fino. As of May 16, 2001, the parking garage at Murano at Porto fino was 40% complete. The construction of said facilities has commenced and is estimated to be completed in November 2001. While the lease provides for 108 parking spaces, the final number of parking spaces, due to design constraints, will be between 102-108 parking spaces. Upon completion and execution, the lease will be modified to reflect the actual number of spaces on-site and available. According to the Lease Agreement, the CitylRDA is required to prepay "Base Rent" to TRG-SSDI which is defined as: (a) a "Purchase Price Component" defmed as the $1,149,336 capital cost for the 108 spaces improvements, and (b) a single installment of base rent of$lOl for the initiallOl-year lease term, and will pay the proportionate share of operating expenses in advance, on a monthly basis, which share is estimated to be $6,000. In order to determine the cost estimate of the share of taxes, insurance and maintenance, there is no separate tax assessment for the Murano Garage area space, nor has Miami-Dade County, at this time, determined that a separate tax assessment could be obtained since the property is going to be subject to a condominium with interest shares in the total value of the property. Should Miami-Dade County determine in the future that this area could be subject to a separate assessed value and submit a bill, that would become the CitylRDA's responsibility and the methodology for reimbursement would be determined at that time. The $6,000 figure represents the cost of insurance, which is based on the percentage of construction costs, approximately 2.5% ofthe total building as the area used by the parking spaces for the marina. The total insurance premium for the tower is $240,000 so that the RDAlCity's contribution to insurance for the first year would be $6,000. The $6,000 in proportionate operating expenses may be further reduced as a result of the City's Fourth Amendment to the Marina Lease Agreement, which provides for the City and the Marina Operator to enter into a garage management or operating agreement that further provides for the Marina lessee to be responsible for routine security, maintenance and insurance for the operation of the Marina parking. In accordance with the South Pointe Redevelopment Plan, the RDA is to provide and maximize the parking facilities in the district. Therefore, it is recommended that the Mayor and Members of the City Cornmission should adopt the Resolution, authorizing the Mayor and City Clerk to execute the Lease Agreement. JMG/~rar T:\AGENDA\2001\JUN2701\REGULAR\PORT-PKG.CM . . LEASE AGREEMENT THIS LEASE AGREEMENT (the "Lease") is made and entered into as of the 22nd day of April , 2002, by and among TRG-SSDI, LTD., a Florida limited partnership ("Landlord"), the CITY OF MIAMI BEACH, FLORIDA, a Florida municipal corporation ("City"), and the MIAMI BEACH REDEVELOPMENT AGENCY, a Florida public agency organi.zed and existing pursuant to the Community Redevelopment. Act of 1969 (Chapter 163, Part III, Florida Statutes, as amended) ("Agency") [collectively, the City and Agency are hereinafter referred to as "Tenant"]. WIT N E SSE T H: In consideration of the paYments of rents and other charges provided for in this Lease, the covenants and conditions hereinafter set forth, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Landlord and Tenant hereby covenant and agree as follows: 1. CITY UNIT: Landlord hereby leases to Tenant and Tenant hereby leases from Landlord, upon the terms and sondi tions hereinafter set forth, that certain City Unit (the "City Unit"), consisting of one hundred eight (108) parking spaces as the same may be adjusted pursuant to paragraph 4 below (the "City Parking Spaces"), all as graphically depicted on Exhibit "A" attached hereto contained within the overall parking structure (the "Parking Garage") to be constructed upon the real property described on Exhibit "B" attached hereto (the "Property") . For purposes hereof, the balance of the Parking Garage other than the City Unit, shall hereinafter be referred to as the "Private Unit". Tenant recognizes and agrees that the City Unit shall be located within or as part of a larger structure; and, in that regard, there shall be no air rights available to Tenant, all such rights as well as all necessary easements for support below and adjacent to the City Unit being reserved to Landlord. 2. TERM: This Lease shall be for a term (the "Term") of one hundred one (101) years, unless sooner terminated or extended as provided herein. The Term shall commence (the "Commencement Date") upon the earlier of the Completion Date or the Possession Date (as each of those dates are hereinafter defined). For all purposes hereunder, the Parking Garage shall be deemed to have been completed (the "Completion Date") so long as (a) the Parking Garage has been constructed in substantial accordance with the "Plans and Specifications" set forth on Exhibit "e" attached hereto, (b) the City Unit is fully operational and ready to be opened for business on a normal business basis in a manner consistent with the Operational Standards (as hereinafter defined), without undue danger to users, (c) Landlord has received a certificate of occupancy from the City permitting the operation of the City Unit and (d) the "punch list" items referred to in paragraph 3 below have been substantially completed. The construction of the City Unit described in the Plans and Specifications shall be deemed to have been completed in substantial accordance with the Plans and Specifications, notwithstanding that minor adjustments may be required by Landlord or minor errors or omissions of Landlord may require correction, provided that, subject to section 3 below, such adjustments and corrections are made within a reasonable amount of time after discovery of same. For purposes hereof, the "Possession Date" shall be deemed to be the first date that the Tenant or the Marina Lessee (as defined in the Development Agreement, as hereinafter defined) enter into possession of the City Unit, as evidenced by the use of the City Unit by Tenant, the Marina Lessee or the Licensees (as hereinafter defined). Upon the request of Landlord, Tenant shall join in the execution of an agreement stipulating the Commencement Date and the date upon which this Lease terminates. Notwithstanding the foregoing, provided that Tenant is not then in default under the terms of this Lease (and no act has occurred which, with the passage of time would constitute a default), Tenant shall have the option to renew the term of this Lease for one (1) additional one hundred one (101) year period, for a single installment of base rent equal to $101.00 plus any applicable sales tax thereon (if any) due and payable when the option is exercised, said option to be exercised by Tenant, if at all, by Tenant's delivery of written notice to Landlord of its election to renew not less than one hundred eighty (180) days prior to the then expiration date of the Term (failing which Tenant shall be deemed to have waived its option to renew) . Tenant agrees to surrender to Landlord, at the end of the Term of this Lease and/or upon any cancellation or early termination of this Lease, the City Unit in as good condition as the City Unit was at the beginning of the Term of this Lease, ordinary wear and tear, and damage by fire or other casualty not caused by Tenant I s negligence excepted. Tenant agrees that if Tenant does not surrender the City Unit to Landlord at the end 2 of the Term of this Lease, then Tenam: will pay to Landlord, to the extent permitted by law, all damages that Landlord may suffer on account of Tenant's failure to so surrender to Landlord possession of the City Unit, and will indemnify, to the extent permitted by law, and save Landlord harmless from and against all claims made by any succeeding tenant of the City Unit against Landlord on account of delay of Landlord in delivering possession of the City Unit to the succeeding tenant so far as such delay is occasioned by failure of Tenant to so surrender the City Unit in accordance herewith or otherwise. Tenant shall provide Landlord with reasonable prior written notice of the date (s) scheduled by Tenant to move out of the City Unit, and shall reasonably coordinate the moving out process with Landlord. No receipt of money by Landlord from Tenant after termination of this Lease or the service of any notice of commencement of any suit or final judgment for possession shall reinstate, continue or extend the Term of this Lease or affect any such notice, demand, suit or judgment. 3. ACCEPTANCE OF CITY UNIT: Entry into possession of the City Unit by Tenant or the Marina Lessee, as evidenced by the use of the City Unit by Tenant, the Marina Lessee or the Licensees will constitute acknowledgment by Tenant that the City Unit is in the condition in which Landlord was required to place the City Unit under the terms of this Lease, that certain Settlement Agreement dated April 15, 1998 by and between West Side Partners, Ltd., a Florida limited partnership ("West Si.de") and Tenant, as amended by letter agreement dated October 15, 1998 (the "SettJ.ement Agreement"), and that certain Amended. and Restated Parking Agreement by and between West Side and Tenant, dated as of May 24, 1999 and recorded in Official Records Book 18626, Page 4822 of the Public Records of Miami-Dade County, Florida (the "Parki.ng Agreement") and that Landlord has performed all of its obligations relating to construction of the City Unit, except for (i) those defects, if any, in construction from the Plans and Specifications, other than latent defects therein, set forth on a written list ("punch J.i.st") to be deli vered by Tenant to Landlord wi thin thirty (30) days after the date Landlord advises Tenant that the City Unit is ready for possession, and (ii) those latent defects therein as to which Tenant notifies Landlord, in writing, within twelve (12) months of the Possession Date. With respect to the City Unit, at the expiration of such 12-month period, Landlord shall assign to the Tenant any warranty rights obtained from contractors, subcontractors and suppliers which remain outstanding at such time. Landlord shall, upon receipt of the list referred to in subparagraph (i) hereof, commence to correct all such defects 3 which require correction in order for the construction of the City Unit to comply in substantial accordance with the Plans and Specifications. 4 . Rent" in following, follows: BASE RENT: the amount said Base Tenant agrees to prepay to Landlord "Base which Rent is to the aggregate be payable in of all of installments the as (a) a "Purchase Price Component" in the amount of One Million One Hundred Forty Seven Thousand Two Hundred Eighty Four and No/lOO Dollars ($1,147,284.00), together with any sales tax due thereon (if any), payable simultaneously with the execution hereof; and (b) - of this thereon a single installment of Base Rent for the initial term Lease equal to $101.00, plus any applicable sales tax (if any), due and payable on the Commencement Date; all such payments to be made without any offset or deduction whatsoever, in lawful money of the United States of America, at Landlord's address specified in paragraph 26 below or elsewhere as designated from time to time by Landlord's written notice to Tenant. Notwi thstanding the foregoing, the parties agree to adjust the Purchase Price Component on the basis of (i) the actual number of parking spaces shown on the final "as built" Plans and Specifications for the City Unit delivered at the time of completion of construction and delivery to the Tenant if and to the extent such actual number of spaces varies from the. 108 c'Jrrently shown in Exhibit "C" hereto; provided, however, that any spaces which are lost as a result of any request by Tenant or the Marina Lessee to construct storage areas and alternative facilities shall, anything to the contrary notwithstanding, remain counted as spaces hereunder for purposes of computing Base Rent and Additional Rent hereunder. Any such adjustment with respect to parking spaces shall be made at the rate of $10,000 per space, as adjusted by any increase in the Consumer Price Index - U.S. City Average - All Urban Consumes (index) as published by the United States Department of Labor's Bureau of Labor Statistics, for the month of March, 1998, as compared with the index for June, 2000, (added for each additional space built and delivered in excess of 108 or subtracted for each space less than 108 built and delivered) such adjustment to be made between the parties in full within 30 days following delivery of the "as built" plans and specifications which shall be provided by Landlord to Tenant as soon'as practical following completion and delivery of the City Unit. 4 All payments towards the Purchase Price Component shall be made by cashier's check or wire transfer of cleared u.s. funds. To secure and pay the obligations of the Tenant to pay the Purchase Price Component, the City and Agency, as applicable, pledge, agree, and covenant as follows: (i) the Agency pledges, agrees and covenants to utilize all tax increment revenues available and necessary from the Redevelopment Area (as defined in the Development Agreement) pursuant to Section 163.387, Florida Statutes, as amended (subject only to any prior pledge of these revenues made before April 24, 1999, the pledge hereunder being junior, inferior and subordinate in all respects to the pledge in favor of bonds issued under the provisions of Resolution No. 81-89, as amended, adopted by the Agency on June 21, 1989, as to lien on and source and security for payment and in all other respects) to pay the monthly installments of the Purchase Price Component as required herein (and provided that the foregoing shall not be deemed to prohibit a subordinate pledge); and (ii) to the extent the tax increment revenues under subparagraph (i) above are insufficient or for any other reason are unavailable, the City agrees to appropriate in its annual budget, by amendment, If necessary, from Non-Ad Valorem Funds (as hereinafter defined) lawfully available in each fiscal year, amounts sufficient to satisfy the monthly installments required herein. Such covenant and agreement on the part of the City to budget and appropriate such amounts of Non-Ad Valorem Funds shall be cumulative to the extent not paid, and shall continue until such Non-Ad Valorem Funds or other legally available funds in amounts sufficient to make all such required payments shall have been budgeted, appropriated and actually paid. Notwi thstanding the foregoing covenant of the City, the City does not covenant to maintain any services or programs, now provided or maintained by the City, which generate Non-Ad Valorem Funds. Such covenant to budget and appropriate does not create any lien upon or pledge of such Non-Ad Valorem Funds, nor does it preclude the City from pledging in the future its Non-Ad Valorem Funds, nor does it require the City to levy and collect any particular Non-Ad Valorem Funds, nor does it give Landlord a prior claim on the Non-Ad Valorem Funds as opposed to claims of general creditors of the City. Such covenant to appropriate Non-Ad Valorem Funds is subj ect in all respects to the payment of obligations secured by a pledge of such Non-Ad Valorem Funds heretofore or hereinafter entered into (including the payment of debt service on bonds and other debt instruments). However, the 5 covenant to budget and appropriate In its general annual budget for the purposes and in the manner stated herein shall have the effect of making available in the manner described herein Non-Ad Valorem Funds and placing on the City a positive duty to appropriate and budget, by amendment, if necessary, amounts sufficient to meet its obligations hereunder; subject, however, in all respects to the restrictions of Section 166.241(3), Florida Statutes, which provides, in part, that the governing body of each municipality make appropriations for each fiscal year which, in anyone year, shall not exceed the amount to be recei ved from taxation or other revenue sources; and subj ect further, to the payment of services and programs which are for essential public purposes affecting the health, welfare and safety of the inhabitants of the City or which are legally mandated by applicable law. The term "Non-Ad Valorem Funds" shall mean all revenues of the City derived from any source other than ad valorem taxation on real or personal property, which are legally available to make the payments required herein, but only after provision has been made by the City for the payment of all essential or legally mandated services. The term "Rent" or "rent" as used in this Lease shall mean Base Rent, Additional Rent (as hereinafter defined) and all other charges and costs due by Tenant to Landlord under this Lease. The term "lease year" as used in this Lease shall mean a twelve (12) consecutive month period, the first lease year commencing on the' Completion Date and subsequent lease years commencing each anniversary thereafter. In addition to Base Rent, Tenant shall and hereby agrees to pay to Landlord each month a sum equal to any sales tax, tax on rentals, and any other charges, taxes and/or impositions now in existence or hereafter imposed based upon the privilege of renting the space leased hereunder or upon the amount of Rent and any other charges collected therefor; provided, however, to the extent that Tenant is exempt under applicable law from the obligation to pay sales tax, Tenant shall provide Landlord with Tenant's tax exempt identification number or other appropriate evidence of such exemption, whereupon Tenant shall not be obligated to pay any such sales tax. Nothing herein shall, however, be taken to require Tenant to pay any part of any federal or state taxes on income imposed upon Landlord. Rent date. Tenant shall be required due that remains unpaid. Said interest will be to pay Landlord interest on any for five (5) days after its due computed from the due date at a 6 rate which is three (3) percentage points in excess of the "base" rate or "prime rate" quoted from time to time by Citibank, N.A., New York, New York or if Citibank, N.A. shall no longer provide a publicly quoted "base" rate or "prime" rate, then the "prime rate" published in the Wall Street Journal for money center banks and to the extent no such rates are quoted by Citibank, N.A., or the Wall Street Journal, then 15% per annum) provided, however, that such interest rate shall not exceed the lawful rate, and such. interest shall be paid from the date due (beyond all applicable notice and grace periods) until actually received by Landlord. 5. USE: (a) Tenant will use the City Unit solely for the purpose of providing parking. for automobiles (including vans and so- called "utility vehicles" but excluding trucks and oversized vehicles that do not fit within standard vehicular parking spaces) of (i) persons employed in connection with the operation, management, maintenance or repair of the Marina (as defined in that certain Agreement by and among inter alia, West Side and Tenant, dated November 7, 1995, recorded on November 9, 1995, in Official Records Book 16987, at Page 1197, of the Public Records of Miami-Dade County, Florida (the "Development Agreement")) and the Marina Lessee, (ii) occupants or users of the Marina, including their guests or invitees and exhibitors in and visitors to any boat shows that may be held at the Marina from time to time, (iii) the public generally (all such users being herein referred to as "Permitted Users"), and for no other purpose; provided, however, that to the extent that there is located wi thin the City Unit lava tory, shower and laundry room facili ties, the use of such facilities solely by occupants or users of the Marina shall be a permitted use hereunder and the users of such facilities shall be included within the definition of Permitted Users. Tenant will be entitled to sublease the City Parking Spaces to the Permitted Users at such rates as are set by Tenant in its sole. discretion, and on other terms and conditions established by Tenant in its sole discretion, provided that such terms and conditions are not inconsistent with the terms of this Lease (the Permitted Users subleasing from or otherwise granted a right to use such City Parking Spaces by Tenant are herein collectively referred to as the "Licensees") . (b) for any hereof. use or Tenant will not use or permit the use of the City Unit purpose other than as set forth in Paragraph 5(a) Tenant shall not use or occupy or suffer or permit the occupancy of any part of the City Unit in any manner 7 which would adversely affect (i) the use and enjoyment of any part of the Parking Garage by any other user thereof or (ii) the appearance, character or reputation of the Parking Garage as part of a first-class development. (c) Tenant shall assist and cooperate with Landlord with respect to the use by the Licensees of the Parking Garage. Tenant agrees to cooperate with Landlord and to take, and to cause the Licensees to take, such actions as may from time to time be reasonably required by Landlord to permit or assist Landlord in so controlling the use and/or manner of use of the Parking Garage, or the City Unit and identifying the Licensees, including, without being limited to, the installation and monitoring of such control and security systems or mechanisms as Landlord shall reasonably specify from time to time. (d) Tenant acknowledges and agrees that except only as specifically provided in this Lease (or otherwise as may be agreed by written agreement between the parties) and as may be necessary for vehicular and pedestrian access to and from the City Unit, Tenant shall have no rights to use any portion of the Property. 6. OPERATIONAL STANDARDS: (a) Subject to subparagraph (b) below, the parties shall, in accordance with the Standard (as hereinafter defined), reasonably determine initial systems of ingress and egress, and minimum standards for security (but which in any event shall require 24 hour security), traffic movement within the Parking Garage, maintenance and repair of the City Unit (but which in any event shall require that the City Unit be maintained and repaired in. a first class, clean manner) and similar operational, maintenance and repair matters (which operational, maintenance and repair matters are herein individually and collectively referred to as "Operat.ional Standards"); provided, however, that the Operational Standards shall at all times be at least comparable to those in other indoor parking garages located in the area known as the South Shore of Miami Beach comparable to the Parking Garage or then represent customary standards of operation of comparable garages or parking lots, as applicable (the "Standard"). As of the date hereof, the parties have not determined the specific Operational Standards for the Parking Garage. The parties acknowledge and agree that the City Unit is intended to and shall be operated, maintained and repaired in a first class manner and otherwise consistent with the standard of development on the property of Landlord immediately adjacent to the Parking Garage. Landlord shall 8 propose initial Operating Standards at least forty-five (45) days prior to the Commencement Date. Any such Operating Standards shall take into account the reasonable needs of the Marina (as defined in the Development Agreement) and otherwise be consistent with the requirements of the Parking Agreement. Landlord shall deliver the initial proposed Operational Standards to Tenant. Tenant shall have thirty (30) days to reasonably review and approve the proposed Operating Standards in writing. In the event Tenant disapproves the proposed Operating Standards, Tenant shall provide Landlord with specific written reasons therefor within said thirty (30) day period. In the event Tenant fails to respond to Landlord in writing within said thirty (30) day period, the proposed Operating Standards shall be deemed approved. Any dispute as to Operational Standards which the _ parties are unable to resolve wi thin the forty-five (45) day period prior to Closing shall, pursuant to paragraph 3 of the Settlement Agreement, be submitted for resolution to the Circuit Court of the lith Judicial Circuit, Miami-Dade County, Florida. (b) Landlord shall not have any affirmative obligation to provide any security at the Parking Garage. It is acknowledged and agreed, however, that if Landlord elects to provide or attempts to provide security to the Parking Garage or the buildings in which the City Unit is located in general, Landlord cannot and does not hereby or thereby guarantee the safety of any person, including, without limitation, licensees or invitees of Tenant, the Marina Lessee, the Licensees or any other user of the City Unit or the Parking Garage, or the protection of automobiles parked in the Parking Garage (or other property left in such automobiles), and that Landlord shall, notwithstanding anything to the contrary set forth herein, have no liability or obligation with respect thereto. Tenant shall provide 24 hour per day, every day security, including, without being limited to, measures to insure the security of lavatories, showers and laundry rooms, if any, located wi thin the City Unit, and shall install appropriate security devices with respect to the City Unit, adopt measures or install devices to control the use, manner of use, access, traffic movement or assignment of parking spaces with respect to the portion of the Parking Garage within which the City Unit is located and erect barriers to the extent necessary to physically separate the City Unit from the parking spaces in the remainder of the Parking Garage. All of the foregoing shall be installed, monitored, operated and maintained in a manner consistent with the Operating Standards and subject to such Rules and Regulations (as defined in Paragraph 8 hereof) . In the event Landlord elects to institute security 9 measures for the overall Parking Garage or the building in which the Parking Garage is located in general, then Tenant shall cooperate fully with Landlord in instituting and maintaining such security measures and coordinating such measures with the securi ty Tenant is obligated to provide wi thin the City Unit pursuant hereto. Tenant shall pay its proportionate share of the costs and expenses incurred in connection with such security measures to the extent such measures instituted by Landlord benefit the City Unit; provided, however, that to the extent that the nature and use of the City Unit reasonably require security measures in excess of those provided in other areas of the Parking Garage and Landlord incurs additional costs and expenses in respect thereof, Tenant shall pay the total cost of such additional security measures to Landlord within ten (10) days after demand therefor. 7. PARKING PRIVILEGES: (a) The Licensees parking in the City Unit shall have so- called self-park "in-and-out" privileges, meaning that, subject to Excusable Delays (as defined in Paragraph 20(a) hereof), Tenant, the Marina Lessee and the Licensees shall have unlimited rights of ingress and egress to and from the City Unit for parking automobiles and for use of the lavatories, showers and laundry rooms contained wi thin the City Unit 24 hours a day, seven days a week, from the entrance to the Parking Garage designated by Landlord for such purpose, without any charge or fee being due or payable by such parties to the Landlord, other than the Maintenance Costs (as defined in Paragraph 10 hereof). Landlord shall provide and maintain (or cause to be provided and maintained) personnel and related facilities suitable in Landlord's reasonable judgment for the proper care and management of the Parking Garage (excluding the City Unit), and Landlord shall have no responsibility to Tenant to provide personnel to park any automobiles, it being acknowledged and agreed that Tenant and the Licensees shall park their own automobiles. Entry to the Parking Garage by Tenant and the Licensees shall be in accordance with the Rules and Regulations. Landlord shall have no liability or responsibility to Tenant in the event the City Unit is used by parties other than Tenant or the Licensees at any time and from time to time and Tenant shall have no liability or responsibility to Landlord in the event the Private Parking Spaces are used by parties other than Landlord. To the extent feasible, the City Unit shall have its own separate entrance which shall be under the control of the Tenant and Tenant shall be entitled (at Tenant's expense) to install appropriate signage (consistent with the design of the 10 improvements on the Property and aesthetically approved by the Landlord) . (b) Tenant shall take all steps necessary to insure that the City Unit is maintained in a manner consistent with that of a first-class parking garage, including, without being limited to, providing cleaning, repair and other maintenance services for the City Unit and any lavatory, shower or laundry room facilities located therein. (c) Landlord shall have the right to take '^,hatever measures it may deem necessary to maintain the Parking Garage as two separate, physically distinct parcels, including, without limitation, adoption of security measures or installation of securi ty devices, installation of devices to control the use, manner of use, access, traffic movement or assignment of parking spaces, installation of barriers and establishment of separate means of ingress and egress, all for the benefit of users of the Private Unit. The exercise of such right shall not be deemed a violation of Landlordrs obligations to Tenant hereunder. 8. RULES AND REGULATIONS: Tenant shall establish and publish reasonable rules and regulations for the day-to-day operation and function of the City Unit that are consistent with the Operational Standards (the "Rules and Regulations"), and the Tenant shall at all times during the term of this Lease, cause the Licensees to comply with the Rules and Regulations. 9. MAINTENANCE AND REPAIR COSTS: (a) At Landlord's option, but in any event within no more than one (1) year following the Completion Date of the City Unit, Landlord shall turn over all maintenance and repair obligations for the City Unit to Tenant, which shall be maintained and repaired in a first class manner and consistent with Landlord's maintenance of the Private Unit and the Operational Standards, by the Tenant at the Tenant I s expense. Prior to turn over, Tenant shall reimburse Landlord from time to time on a monthly basis all out-of-pocket expenses incurred by Landlord in maintaining or repairing the City Unit (other than the expense of correcting the punch list items and any latent defects in construction). (b) Tenant shall pay to the appropriate taxing authorities any and all taxes, assessments and charges of every description levied upon Tenant and/or the Licensees' occupation of the City Unit or Tenant I s payment of Maintenance Costs (as hereinafter defined) pursuant to this Lease; provided, however, to the 11 extent that Tenant is exempt under applicable law from the obligation to pay sales tax, Tenant shall provide Landlord with Tenant's tax exempt identification number or other appropriate evidence of such exemption, whereupon Tenant shall not be obligated to pay any such sales tax. (c) Any repairs or replacements of a structural nature or otherwise impacting portions of the Parking Garage (or building in which the. Parking Garage is situated) other than just the City Unit, shall be undertaken by Landlord, and the costs thereof equitably apportioned based upon the nature and scope of the repair work. Any dispute as to the apportionment of such repair work that cannot be resolved within thirty (30) days shall pursuant to paragraph 3 of the Settlement Agreement be submitted for resolution to the Circuit Court of the 11th Judicial Circuit, Miami-Dade County, Florida. Landlord shall also be entitled to make any emergency repairs (not being undertaken by Tenant) as necessary and be equitably reimbursed for same pursuant to the foregoing. 10. ADDITIONAL RENT: In addition to the Base Rent, Tenant shall, during each lease year, pay to Landlord as "Additional Rent", "Tenant's proportionate share" of "Operating Expenses", "Taxes" and "Insurance". As used herein the term: "Tenant's proportionate share" shall mean which the Rentable Area leased by the Tenant Garage bears to the total Rentable Area contained Garage, which share is hereby agreed to be 27.6%. the percentage in the Parking in the Parking "Rentable Area" .means all interior floor area exclusive of columns and shafts. "Operating Expenses" shall mean all expenses, costs and disbursements, of every kind and nature, which Landlord shall payor become obligated to pay in connection with the maintenance, repair, replacement, management, operation, regulation and insuring of the common areas of or relating to the Parking Garage (including any associated landscaped areas), including, without limitation, any sums incurred by Landlord for maintenance, alterations, additions and/or repairs pursuant to paragraph 9 above or paragraph 11 below, all fees, assessments and expenses incurred in connection therewith, as well as all costs associated with the maintenance and repair of the drop-off areas, all computed on the accrual basis, but shall not include "Taxes" (as hereinafter defined), the cost of mortgage financing, individual tenant improvements, commissions, fees paid in connection with Landlord's leasing activities or 12 services or other benefits provided to the users of the Parking Garage which are not provided to the users of the City Unit. By way of explanation and clarification, but not by way of limitation, Operating Expenses will include the following: wages, salaries and benefits of all employees engaged in the operation and maintenance of the Parking Garage; cost of all supplies and materials used in the operation and management of the Parking Garage; cost of all utili ties used by the Parking Garage and not charged directly to another tenant; and cost of Parking Garage management, janitorial services, accounting and legal services, trash and garbage removal and servicing and maintenance of all Parking Garage systems and equipment. Operating Expenses are intended to be "net" charges only, and for that purpose shall be deemed reduced by the amounts of any insurance reimbursement, other reimbursement, payment, discount, credit, reduction, allowance or the like, received by Landlord in connection with such Operating Expenses and if and to the extent the Tenant is self-maintaining, repairing and operating the City Unit, and directly paying the costs for same, then Tenant shall not be charged a proportionate share of those expenses being self-performed and directly paid for by the Tenant. "Taxes" shall mean all impositions, taxes, assessments (special or otherwise), and other governmental liens or charges of any and every kind, nature and sort whatsoever, ordinary and extraordinary, foreseen and unforeseen, and substitutes therefor (except only income taxes) attributable in any manner to the Parking Garage, associated parking areas and/or the land on which the same are located or any part thereof, or any use thereof, or any equipment, fixtures or other facility located therein or thereon or used in conj unction therewith provided that, if and to the extent the City Unit is not taxed, then Tenant shall not be charged a proportionate share of the Taxes. "Insurance" shall mean the cost to Landlord of all casualty (including all extended coverages), liability, flood hazard, and other insurance maintained by Landlord (in Landlord's sole discretion) and applicable to the Parking Garage, associated parking areas, the land adjacent and/or upon which the same are located and/or Landlord I s personal property used in connection therewith. Landlord shall notify Tenant within a reasonable time after the date hereof and within a reasonable time after the end of each calendar year hereafter ensuing during the Term hereof, of the amount which Landlord estimates (as evidenced by budgets prepared by or on behalf of Landlord) will be the amount of 13 r'. Tenant's proportionate share of Operating Expenses, Taxes and Insurance for the then current cale:1dar yea:: and Tenant shall pay such sum In advance to Landlord in equal monthly installments, during the balance of said calendar year, on the first day of each remaining month in said calendar year commencing on the first day of the first month following Tenant's receipt of such notification. Wi thin sixty (60) days following the end of each calendar year during the Term, Landlord shall submit to Tenant a statement showing the actual amount which should have been paid by Tenant with respect to Operating Expenses, Taxes and Insu'rance for 1:he past calendar year, the amount thereof actually paid during that year by Tenant and the amount of the resulting balance due thereon, or overpayment thereof, as the case may be. Wi thin thirty (30) days after receipt by Tenant of said statement, Tenant shall have the right in person to inspect Landlord's books and records as pertains to said Operating Expenses, Taxes and Insurance, at Landlord's office, during normal business hours, after reasonable prior notice. The statement shall become final and conclusive between the parties unless Landlord receives written detailed objections with respect thereto within said thirty (30) day period. Any balance shown to be due pursuant to said statement shall be paid by Tenant to Landlord within thirty (30) days following Tenant's receipt thereof and any overpayment shall be immediately credited against Tenant's obligation to pay expected Additional Rent in connection with anticipated Operating Expenses, Taxes and Insurance for the next year, or, if by reason of any termination of this Lease no such future obligation exists, refunded to Tenant. Anything herein to. the contrary notwithstanding, Tenant shall not delay or withhold payment of any balance shown to be due pursuant to a statement rendered by Landlord to Tenant because of any obj ection which Tenant may raise with respect thereto and Landlord shall immediately creditor refund any overpayment found to be owing to Tenant as aforesaid upon the resolution of said objection. Addi tional Rent due by reason of this paragraph for the final months of this Lease is due and payable even though it may not be calculated until subsequent to the termination date of the Lease; and shall be prorated according to that portion of said calendar year that this Lease was actually in effect. Additionally, Tenant shall be responsible for and shall pay before delinquency all municipal, county or state taxes assessed during the Term of this Lease against any occupancy interest or personal property of any kind, owned by or placed in, upon or about the City Unit by the Tenant. 14 All amounts payable by Tenant pursuant to this Paragraph 10, and any other sums payable by Tenant pursuant to this Lease, shall be deemed maintenance costs (the "Maintenance Costs"), and, if not paid when due, shall, to the extent lawful, be deemed liens upon the City Unit prior in all respects to all other liens then or thereafter placed thereon and, without limiting any other rights or remedies available to Landlord in respect thereof, may be foreclosed by Landlord in the same manner as mortgage liens may be foreclosed thereon. 11. CHANGE IN FACILITIES: (a) Landlord reserves the right, at any time, without incurring any liability to Tenant therefor, to make such changes in or to the City Unit, the Parking Garage (including, without being limited to, reducing the size of the Parking Garage) and any structures appurtenant thereto, as well as in the entrances, doors, corridors, elevators, stairs, landings, if any, and other public parts of same, as Landlord may deem necessary or desirable, provided any such change to the City Unit or the Parking Garage (but not of any structures appurtenant to the Parking Garage exclusive of the Parking Garage) (i) does not deprive Tenant of access to the City Unit, (ii) does not interfere with the use of any portions of the City 0nit for an unreasonable length of time under the circumstances then prevailing, (iii) does not reduce the number of City Parking Spaces in the City Unit, and (iv) meets all of the other criteria for design, review and approval otherwise required for a change in the Plans and Specifications as set forth in paragraph 4 of the Parking Agreement. (b) Tenant shall permit Landlord maintain pipes, ducts, wires and conduits City Unit, or through the walls, columns the floors therein, provided that the performed at such times and by such unreasonably interfere with Tenant's use City Unit or damage the appearance thereof. to install, use and within or through the and ceilings or under installation work is methods as will not and occupancy of the (c) All parts of all walls, doors or barriers bounding the City Unit, all stairs, landings and roofs adjacent to the City Unit, all space in or adjacent to the City Unit used for shafts, stacks, stairways, conduits, air conditioning rooms, fan rooms, heating, ventilating, air conditioning, plumbing, electrical and other mechanical facilities, service closets and other equipment serving the Parking Garage or other parts of the building in which the Parking Garage is located, and the use thereof, as well as access thereto through the City Unit for the purposes of 15 operation, decoration, cleaning, maintenance, safety, security, alteration and repair, are hereby reserved to Landlord. Landlord reserves the right, at any time, to make such changes in or to the Parking Garage and the equipment, including the entrances, doors, corridors, elevators, stairs, landings and other public parts of the equipment serving the Parking Garage, as it may deem necessary or desirable, provided any such change (i) shall not deprive Tenant of access to the City Unit, (ii) shall not materially interfere with the use of any portions of the City Unit for an unreasonable length of time, and (iii) shall be made in the manner as necessary to meet all of the criteria for design, review and approval otherwise required for a change in the Plans and Specifications as set forth in paragraph 4 of the Parking Agreement. Tenant shall make no material alterations to the City Unit without the consent of the Landlord. All additions, fixtures, carpet or improvements, except only office furniture and fixtures which shall be readily removable without injury to the City Unit, shall be and remain a part of the City Unit at the expiration of this Lease. (d) Landlord shall have the right to enter the City Unit at all reasonable times upon reasonable notice to Tenant ,(except in an emergency in which case no notice shall be required) for any of the purposes specified In this Paragraph 11 and (i) to examine the City Unit or to perform any obligation of Landlord or to exercise any right reserved to Landlord in this Lease; (ii) to inspect any improvements in the City Unit or the making thereof; (iii) to exhibit the City Unit to others; (iv) to make repairs, including repairs of damage resulting from fire or other casualty or eminent domain, or improvements, or to perform such maintenance, including the maintenance of equipment serving the Parking Garage, as Landlord may deem necessary or desirable; and (v) to take into and store upon portions of the City Unit any materials that may be reasonably required for repairs, improvements or maintenance to the City Unit. Any holder of a mortgage or any ground lessor under any ground or underlying lease to which this Lease is subject and subordinate shall have the right to enter the City Unit at all reasonable times to examine the City Unit or exercise any right reserved to Landlord under this Paragraph 11. (e) Landlord or Landlord's agents shall have the right to permit access to the City Unit at any time, whether or not Tenant shall be present, to any receiver, trustee, marshal or other person entitled to, or reasonably purporting to be entitled to, such access for the purpose of taking possession of or removing any of Tenant's property or property of any other 16 occupant of the City Unit, or for any other lawful purpose, or by any representative of the fire, police, building, sanitation or other department or instrumentality of the borough, city, state or federal governments. Nothing contained in, and no action taken by Landlord under, this Paragraph 11 shall be deemed to constitute recognition by Landlord that any person other than Tenant has any right or interest in this Lease or the City Unit. (f) The exercise of any right reserved to Landlord in this Paragraph 11 shall be without liability of Landlord to Tenant. 12. PARKING GARAGE NAME: The Parking Garage may be designated and known by any name or address Landlord may choose and such designated name or address may be changed from time to time in Landlord's sole discretion provided that, to the extent feasible, the City Unit shall have its own separate entrance which shall be under the control of the Tenant and Tenant shall be entitled (at Tenant's expense) to install appropriate signage (consistent with the design of the improvements on the Property and aesthetically approved by the Landlord). Tenant agrees not to refer to the Parking Garage by any name or address other than as designated by Landlord. 13. QUIET ENJOYMENT: Upon payment by Tenant of the Rents herein provided, and upon the observance and performance of all terms and provisions on Tenant's part to be observed and performed, neither Landlord nor anyone claiming by, through or under Landlord shall interfere, subject to all of the terms and provisions of this Lease and Acts of God, with Tenant's peaceful and quiet enj oyment of the City Unit during the Term hereby demised. 14. GOVERNMENTAL AND OTHER REQUIREMENTS: Tenant shall faithfully observe in the use of the City Unit all municipal and county ordinances and codes and all state and federal laws, statutes, rules and regulations now in force or which may hereafter be in force. Without limiting the generality of the foregoing, Tenant covenants and represents to Landlord that Tenant will not use, generate, manufacture, produce, store, release, discharge or dispose of, on, under or about the City Unit or transport to or from the City Unit any "Hazardous Materials" (as hereinafter defined). For purposes of this Lease, the term "Hazardous Materials" shall mean any hazardous and/or toxic substances or related materials, including petroleum products, and any other substances or materials or waste which are designated as hazardous by any federal, state or 17 local environmental laws, statutes, regulations or ordinances presently or hereinafter in effect, as amended. 15. SERVICES: Landlord agrees that, to the extent possible, all utilities serving the City Unit shall be provided through systems which are separate from the remainder of the Parking Garage and any structures appurtenant thereto. To the extent such utilities are separately metered, Tenant shall pay the cost of all such utilities directly to the authority or utili ty providing the same. The cost of repair and maintenance of all utility systems serving the City Unit shall be the sole responsibili ty of Tenant. Tenant shall be solely responsible for payment, and shall promptly pay, all charges for telephone and other utilities or services with respect to the City Unit. No electric current shall be used in the City Unit except that furnished or approved by Landlord, nor shall electric cable or wire be brought into the City Unit except upon the written consent and approval of the Landlord. Tenant shall use only office machines and equipment that operate on the Parking Garage's standard electric circuits, but which in no event shall overload the Parking Garage I s standard electric circuits from which the Tenant obtains electric current. If not separately metered and paid by Tenant, any consumption of electric current by Tenant in excess of that considered by Landlord to be usual, normal and customary by all tenants shall be paid for by Tenant as Additional Rent in an amount. to be determined by Landlord based upon Landlord's estimated cost of such excess electric current consumption or based upon the actual cost thereof if such consumption is separately metered. Tenant agrees to cooperate fully, at all times, with Landlord in abiding by all reasonable regulations and requirements which Landlord may prescribe for the proper functioning and protection of all utilities and services reasonably necessary for the operation of the Parking Garage and the City Unit. Landlord, throughout the Term, shall have free access to any and all mechanical installations in the City Unit, and Tenant agrees that there shall be no construction of partitions or other obstructions which might interfere with the moving' of the servicing equipment of Landlord to or from the enclosures containing such installations. Tenant further agrees that neither Tenant nor its employees, agents, invi tees, licensees or contractors shall at any time tamper with, adjust or otherwise in any manner affect Landlord I s mechanical installations. 18 16. MECHANICS LIENS: Tenant shall keep the City Unit and all parts thereof at all times free of mechanic's liens and any other lien for labor, services, supplies, equipment or material purchased or procured, directly or indirectly, by or for Tenant. Tenant further agrees that Tenant will, wi thin thirty (30) days of receipt of written notice of any lien caused or created by Tenant, pay and satisfy or transfer to bond pursuant to Florida Statutes all liens of contractors, subcontractors, mechanics, laborers, materialmen and other items of like character and will indemnify Landlord against all expenses, costs and charges including bond premiums, release of liens and attorneys fees and costs reasonably incurred in connection with the defense of any suit in discharging the City Unit, or the Parking Garage, or any part thereof from any liens, judgments, encumbrances caused or created by Tenant. In the event any such lien shall be made or filed, Tenant shall bond against ?r discharge the same wi thin thirty (30) days after the same has been made or filed. It is understood and agreed between the parties hereto that the expenses, costs and charges above referred to shall be considered as rent due and shall be included in any lien for rent. Tenant shall not have any authority to create any liens for labor or material on the Landlord '. s interest in the City Unit and all persons contracting with the Tenant for the construction or removal of any facilities or other improvements on or about the City Unit, and all materialmen, contractors, mechanics, and laborers are hereby charged with notice that they must look only to the Tenant and to the Tenant's interests in the City Unit to secure the payment of any bill for work done or material furnished at the request or instruction of Tenant. Tenant shall notify any contractor making any improvement to the City Unit of this provision in the Lease. In accordance with Florida Statutes ~ 713.10, Landlord shall have the right to post on the City Unit and to file and/or record in the Public Records of Miami-Dade County, Florida or court registry, as applicable, a notice stating that the interest of Landlord shall not be subject to liens for improvements made by the Tenant at the City Unit and such other notices as Landlord may reasonably deem proper for the protection of Landlord's interest in the City Unit. 19 17. LIABILITY AND INDEMNITY: (a) Nei ther Landlord nor Landlord's agents, officers, directors, shareholders, partners or principals (disclosed or undisclosed) shall be liable to Tenant, or anyone claiming by, through or under Tenant, including, without being limited to, the Licensees, or their respective agents, employees, contractors, invitees or licensees, for any loss, cost, liability, claim, damage, expense, penalty or fine incurred in connection with 'or arising from any injury or death of any person or for any damage to, or loss (by theft or otherwise) of, any of the property of any person, irrespective of the cause of such injury, damage or loss (including the acts or negligence of any other user of or person present at the Parking Garage or of any owners or occupants of adj acent or neighboring property or caused by operations in construction of any private, public or quasi-public work) unless due to the negligence or misconduct of Landlord or Landlord's agents, servants or employees. (b) Neither any (i) performance by Landlord or others of any repairs, improvements, alterations, additions, installations, substitutions, betterments or decorations in or to the Parking Garage or the Property, (ii) failure of Landlord or others to make any such repairs, improvements, alterations, additions, installations, substitutions, betterments or decorations, (iii) damage to the Parking Garage or the Property, (iv) injury to any persons, caused by other users of or persons at the Parking Garage or the Property, or by operations in the construction of any.private, public or quasi-public work, or by any other cause, (v) latent defects in the Parking Garage, nor (vi) inconvenience or annoyance to Tenant or anyone claiming by, through or under Tenant or injury to or interruption of the business of any of the foregoing by reason of any of the events or occurrences referred to in the foregoing subdivisions (i) through (vi), shall impose any liability on Landlord, other than such liability as may be imposed upon Landlord by law for Landlord; s negligence or the negligence of Landlord's agents, servants or employees or for the breach by Landlord of any express covenant of this Lease on Landlord's part to be performed. No representation, guaranty or warranty is made or assurance given that any communications or security systems, devices or procedures of the Parking Garage, if any, will be effecti ve to prevent inj ury to Tenant or any other person or damage to, or loss (by theft or otherwise) of, the property of any person, and Landlord reserves the right to discontinue or modify at any time such communications or security systems or 20 procedures without liability to ':'enant or anyone claiming by, through or under Tenant. (c) To the fullest extent permitted by applicable law, Tenant agrees to indemnify, defend and save Landlord harmless of and from all loss, cost, liability, damage and expense including, without being limited to, reasonable attorneys' fees and court costs, penalties and fines incurred in connection with or arising from (i) any default by Tenant or anyone claiming by, through or under Tenant, including, without being limited to, the Licensees, in the observance or performance of any of the terms, covenants or conditions of this Lease on Tenant's or the Licensees' part to be observed or performed, or (ii) the manner of use or occupancy (as opposed to mere use or occupancy) of the Parking Garage by Tenant or any person claiming by, through or under Tenant, including, without being limited to, the Licensees, or (iii) any acts, omissions or negligence of Tenant or any such person, or the contractors, agents, servants, employees, visitors or licensees of Tenant or any such person, in or about the Property or the Parking Garage; provided, however, that in no event shall Tenant be obligated under clause (ii) and/or (iii) above in respect of third party claims for amounts in excess of the greater of (1) the insurance coverage carried by Tenant covering such matters or (2) those limits to waiver of sovereign immunity provided for under Florida Statute ~ 768.28 (or any successor statute thereto). If any action or proceeding shall be brought against Landlord or Landlord's agents, servants or employees based upon any such claim and if Tenant, upon notice from Landlord, shall cause such action or proceeding to be defended at Tenant's expense by counsel acting for Tenant's insurance carriers in connection with such defense or by other counsel reasonably satisfactory to Landlord, without any disclaimer of liability by Tenant in connection with such claim, Tenant shall not be required to indemnify Landlord or Landlord's agents, servants or employees for counsel fees in connection with such action or proceeding. (d) If Tenant shall default in the observance or performance of any term, covenant or condition of this Lease on Tenant's part to be observed or performed beyond any applicable grace period set forth herein, Landlord shall have all rights permitted hereunder and at law or equity. 18. INSURANCE: (a) Tenant shall not do or done in or in connection with Garage which would (i) subj ect suffer or the City Landlord permit anything to be Unit or the Parking to any liability for 21 injury to any person or property by reason of any such activity being conducted in or in connection ,,.;ith the City Unit or by Tenant or those claiming by, through or under Tenant, (ii) cause any increase in the rates for the fire and other types of insurance applicable to the Parking Garage or any structure appurtenant thereto, or (iii) result in the cancellation or the assertion of any defense by the insurer to any claim under any policy of insurance maintained by or for the benefit of Landlord with respect to the Parking Garage or any structures appurtenant thereto. (b) Tenant shall be responsible to pay as part of Additional Rent, its proportionate share (equitably allocated) of any fire, windstorm, flood and extended casualty policies if insurance is maintained for the benefit of the building as a whole. (c) Tenant shall give notice to Landlord, promptly after Tenant learns thereof, of any accident, emergency or occurrence for which Landlord might be liable, fire or other casualty and all damages to or defects in the City Unit, the Parking Garage or any structures appurtenant thereto. Such notice shall be given by facsimile or personal delivery to the address of Landlord then in effect for notices. 19. SUBORDINATION AND NON-DISTURBANCE: (a) This Lease and all rights of Tenant under this Lease shall be and remain subject and subordinate in all respects to all mortgages which may, from time to time, hereafter affect the Property, the Parking Garage or any structures appurtenant thereto, and to all advances to be made under such Landlord's mortgages, and to all renewals, modifications, consolidations, correlations, replacements and extensions of, and substitutions for, any such mortgages provided that (i) the applicable mortgagee shall execute and deliver an agreement to Tenant substantially to the effect that, in the event of any foreclosure of such mortgage, such holder or holders will not make Tenant a party defendant to such foreclosure unless required to do so by law in order to make such proceeding effective, nor, whether or not so joined, disturb its possession under this Lease so long as there shall be no default by Tenant of its obligations hereunder (any such agreement or any agreement of similar import is referred to as a "Non-Disturbance Agreement") or (ii) such Landlord's mortgage shall contain provisions substantially to the same effect as those contained in a Non-Disturbance Agreement (any such provisions are referred to in this Lease as "Non-Di.sturbance provisi.ons") . 22 (b) This Lease and all rights of Tenant under this Lease shall be and remain subject and subordinate in all respects to all future ground or underlying leases of the Property, the Parking Garage or any structure appurtenant thereto and to all renewals, modifications, replacements and extensions of, and substitutions for, such ground or underlying leases, provided that (i) the applicable ground or underlying lease shall contain provisions or (ii) the lessor under any such ground or underlying lease shall execute and deliver to Tenant an agreement, in either case substantially to the effect that, in the event of the termination of such ground or underlying lease by reason of the default or insolvency of the lessee thereunder (or by reason of any other cause, provided such other cause would not result in the termination of this Lease absent such ground or underlying lease), such lessor will permit Tenant to attorn to such lessor and will not disturb its possession under this Lease so long as there shall be no default by Tenant of its obligations he~eunder, with the effect that this Lease shall constitute a direct agreement between such lessor and Tenant (any such provisions or agreement, or any provisions or agreement of similar import are referred to in this Lease as "Tenant Recognition Provisions" or as a "Tenant Recognition Agreemen t") . (c) If, at any time prior to the expiration of the term of this Lease, any ground or underlying lease under which Landlord shall then be the lessee shall expire or be terminated for any reason, Tenant agrees at the election and upon' demand of any owner of the Property, the Parking Garage or any structures appurtenant thereto, or if the holder of mortgages in possession of the same, or of any lessee under any other ground or underlying lease covering premises which include the City Unit, to attorn, from time to time, to any such owner, holder or lessee upon the then executory term and conditions of this Lease, for the remainder of the term of this Lease, provided that such owner, holder or lessee, as the case may be, shall then be entitled to receive Maintenance Costs (as defined herein). The foregoing provisions of this Paragraph 19(c) shall inure to the benefit of any such owner, holder or lessee, shall apply not wi thstanding that as a matter of law, this Lease may terminate upon the expiration or termination of any such ground or underlying lease, shall be self-operative upon any such demand, and no further instrument shall be required to give effect to said provisions. Tenant, however, upon demand of any such owner, holder or lessee, agrees to execute from time to time, instruments in confirmation of the foregoing provisions of this Paragraph 19(c), satisfactory to any such owner, holder or 23 lessee acknowledging such attornment and setting forth the terms and conditions of its use and occupancy of the City Unit. Nothing contained in this Paragraph 19 (c) shall be construed to impair any right otherwise exercisable by any such owner, holder or lessee. (d) The subordination provisions of this Paragraph 19 shall be self-operative and no further instrument of subordination shall be required. In confirmation of such subordination, Tenant shall execute and deliver promptly any certificate or other instrument evidencing such subordination which Landlord, or any lessor under any 'ground or underlying lease, or any holder of any mortgage to which this Lease is subordinate, may reasonably request. (e) Nothing contained in this Paragraph 19 or in any Non-Disturbance Provision, Non-Disturbance Agreement, Tenant Recognition Provision or Tenant Recognition Agreement shall, however, affect the prior rights of the holder of any existing or future mortgage or of the lessor under any future ground or underlying lease with respect to the proceeds of any award in condemnation or of any insurance policies affecting the Property, Parking Garage or any structure appurtenant thereto, or impose upon any such holder or lessor any liability (i) in the event of damage or destruction to the Parking Garage or the City Unit for any repairs, replacements, rebuilding or restoration except as can reasonably be accomplished from the net proceeds of insurance actually received by or made available to, such holder or lessor in respect of such damage or destruction to the extent any such existing or future mortgage or ground or underlying lease provides that such net proceeds are to be made available for such repairs, replacements, rebuilding or restoration, or (ii) for any default by Landlord under this Lease occurring prior to any date upon which such holder or lessor shall become Tenant's landlord or (iii) for any credits, offsets or claims against Maintenance Costs under this Lease as the result of any acts of any prior Landlord, and any such Provision or Agreement may so state. Any such Provision or Agreement may also be conditioned upon the existence of anyone or more of the following circumstances at the time of the commencement of any foreclosure of any such mortgage or at the time of the termination of any such ground or underlying lease, as the case may be: (1) This Lease shall be in full force and effect; (2) Tenant shall not be in default in the observance or performance of any of the covenants of this Lease on 24 the part of Tenant to be observed or performed beyond any applicable grace period provided in this Lease for the curing of any default; (3) Tenant shall have agreed that, notwithstanding that Tenant may have paid for Maintenance Costs in advance beyond the then current payment period, Tenant shall not be entitled to any credit for such payment against the holder of any such mortgage after foreclosure or against the lessor under such ground or underlying lease after termination, as the case may be and no such Maintenance Costs payment shall be binding upon such holder or lessor; (4 ) There shall be no offsets then accrued against Maintenance Costs chargeable against the holder such mortgage after foreclosure or against the under any such ground or underlying lease termination, as the case may be; and future of any lessor after (5) Tenant shall have furnished to the then holder of any such mortgage or the then lessor under any such ground or underlying lease, as the case may be, a statement, in writing, as to the status of this Lease with respect to the above circumstances (1), (2), (3) and (4) or any circumstances substantially similar to (2), (3) or (4), within ten (10) days after such holder or lessor shall have made written demand for such statement by registered or certified mail addressed to Tenant. (f) At the request of Landlord, Tenant shall promptly execute and deliver any instrument or instruments requested by Landlord for the benefit of the holder of any mortgage to which this Lease shall then be subordinate or for the benefit of the lessor under any ground or underlying lease to which this Lease shall then be subordinate, in which Tenant shall covenant and agree with such holder or lessor that (i) Tenant will not enter into any agreement to cancel or modify this Lease without the written approval of such holder or lessor and (ii) Tenant will not take any action or institute any proceeding against Landlord to cancel or modify this Lease by reason of the default of Landlord without giving to such holder or lessor at least thirty (30) days' prior written notice of such action or proceeding and a reasonable opportunity for such holder or lessor to cure or cause to be cured, such default by Landlord (including such reasonable period of time as shall be required for such lessor or holder to obtain possession of the Parking Garage if 25 possession of the same shall be needed to cure such default), except that the provisions of any such instrument shall not apply to any modifications of this Lease contemplated in any of the provisions of this Lease or to any right or option to cancel or modify this Lease expressly reserved or granted to Tenant pursuant to any of the provisions of this Lease not involving the default of Landlord. (g) If required by the holder of any such mortgage or by the lessor under any such ground' or underlying lease, Tenant shall promptly join in any Non-Disturbance Agreement or Tenant Recognition Agreement to indicate its concurrence with the provisions thereof provided such agreement shall comply with the provisions of this Paragraph 19. 20. DEFAULT: (a) Landlord's Default. In the event of any default by Landlord hereunder not caused by Excusable Delays (as hereinafter defined), Tenant shall give Landlord and each of Landlord's mortgagees written notice specifying such default with particularity and Landlord agrees to promptly commence the curing of such default and to cure such default within thirty (30) days after receipt of the aforesaid notice; provided, however, that if such default cannot reasonably be cured within said thirty (30) day period, then Landlord shall cure any such default diligently and as quickly as reasonably practicable under the circumstances and shall have a reasonable period of time within which to cure such default so long as Landlord is so proceeding. If Landlord fails to cure any default during' the applicable curative period, Tenant, at any time after the expiration of such curative period (as long as such default remains uncured) , shall have the right, subj ect to Paragraph 24 (a) hereof, to seek damages against Landlord and/or to exercise any other remedy provided in this Lease or available to Tenant at law or in equity. As used herein, the term "Excusable Delay" shall mean Landlord's failure to complete construction of the Parking Garage or to perform any other obligation of Landlord hereunder, as applicable, by reason of one or more of the following causes, to-wit, governmental restrictions, regulations or ordinances, strikes, shortages of labor or essential materials, lockouts, acts of God, war, riots or civil commotion, fire or other casualty, negligence or the willful misconduct of Tenant or any Licensee, failure of the parties hereto to approve amendments of or . changes to the Plans and Specifications, or any other cause, similar or dissimilar tv the foregoing and whether or not now in the contemplation of the parties hereto, beyond the reasonable control of Landlord, other 26 than the financial inability of Landlord to perform, provided that Landlord takes reasonable steps to so minimize the effect of any such circumstance, but such steps shall not include the acquiescence in the demands of the other side in any labor dispute or the payment of money or the employment of labor at overtime or premium rates, in which event the date upon which Landlord is so required to complete construction of the Parking Garage (or the required time period for Landlord's performance of any other obligation hereunder, as applicable) shall be extended for a period equal to the length of the delay caused by such Excusable Delays. Landlord agrees to make a good faith effort to notify Tenant of any Excusable Delays affecting the performance by Landlord of its obligations under this Lease and the estimated delay to result therefrom, but the failure to give such notice shall not affect Landlord's rights under this Paragraph 20 (a) . (b) Tenant's Default. In the event of any default by Tenant hereunder, not caused by Tenant Excusable Delays (as hereinafter defined), Landlord shall give Tenant written notice specifying such default and Tenant agrees to promptly commence the curing of such default and to cure such default within thirty (30) days after receipt of the aforesaid notice; provided, however, that if such default cannot reasonably be cured within said thirty (30) day period, then Tenant shall cure any such default diligently and as quickly as reasonably practicable under the circumstances and shall have a reasonable period of time within which to cure such default so long as Tenant is so proceeding. If Tenant fails to cure any default during the applicable curative period, Landlord, at any time after the expiration of such curative period, shall have the right to seek damages against Tenant and/or to exercise any other remedy provided in this Lease or available to Landlord at law or in equity. As used herein, the term "Tenant Excusable Delays" shall mean Tenant's failure to perform any obligation of Tenant hereunder by reason of one or more of the following causes, to-wit, governmental restrictions, regulations or ordinances (other than those restrictions, regulations or ordinances over which Tenant, as a governmental entity, exercises control), strikes, lockouts, acts of God, war, riots, gross negligence or the willful misconduct of Landlord, or any other cause, similar or dissimilar to the foregoing and whether or not now in the contemplation of the parties hereto, beyond the reasonable control of Tenant, other than the financial inability of Tenant, provided that Tenant takes reasonable steps to so minimize the effect of any such circumstance, in which event the required period for Tenant's performance for any 27 obligation hereunder shall be extended for a period equal to the length of the delay caused by such Tenant Excusable Delays. Tenant agrees to make a good faith effort to notify Landlord of any Tenant Excusable Delays affecting the performance by Tenant of its obligations under this Lease and the estimated delay to result therefrom. Notwithstanding the foregoing, any failure of Tenant to timely pay the Purchase Price Component, shall if the same continues more than sixty (60) days after written notice to Tenant and the Marina Lessee (and without releasing the Tenant for all damages caused thereby), fully excuse and release Landlord from any obligation to deliver the City Unit hereunder (provided in such event Landlord shall remain obligated to provide the two (2) drive-in dropoffs together with the remaining temporary non-parking facilities described in the Parking Agreement) . 21. ESTOPPEL CERTIFICATES: Landlord execute and deliver to each other, at such either party may request, a certificate in stating: and Tenant shall time or times as recordable form (a) Whether or not this Lease is in full force or effect; (b) Whether or not this Lease has been modified in &ny respect, and submit copies modifications or amendments, if any. or amended of such (c) Whether or not there are any this Lease to the knowledge of certificate, and specifying defaults, if any; and existing defaults under the party executing the the !l,ature of such (d) Such other information as may be reasonably requested by such other party. The aforesaid certificate (s) shall be delivered to Tenant or Landlord, as the case may be, promptly upon receipt of the written request therefor, but in no event more than ten (10) days following receipt of such request. 22. NON-WAIVER: The failure by either party hereto to complain of any action, non-action or default of the other party hereto shall not constitute a waiver of any of such party's rights hereunder. Waiver by either party hereto of any right or any default of the other party hereto shall not constitute a waiver of any right for either a prior or subsequent default of the same obligation or for any prior or subsequent default of any other obligation. No right or remedy of either party 28 \. hereunder or covenant, duty or obligation of either party hereunder shall be deemed waived by the other party hereto unless such waiver be in writing, signed by the other party or such other party's agent duly authorized in writing. 23. LIEN FOR PAYMENT OF RENT: To the extent permitted by law, Tenant hereby pledges and assigns to Landlord as security for the payment of any and all Rent to other sums or amounts provided for herein, all of the furniture, fixtures, equipment, goods and chattels of Tenant which shall or may be brought or put on or into the City Unit, and Tenant agrees that said lien may be enforced by distress, foreclosure or otherwise, at the election of the Landlord. Tenant hereby expressly waives and renounces for itself and its successors and permitted assigns any and all homestead and exemption rights it may now or hereafter acquire under or by virtue of the constitution and laws of the State of Florida or of any other state, or of the United States, as against the payment of said Rent or any other obligation or damage that may accrue under the terms of this Lease. 24. Miscellaneous. (a) Subject to the other provisions of this Paragraph 24, Landlord and Tenant may each restrain or enjoin any breach or threatened breach of any covenant, duty or obligation of the other party (as applicable) herein contained without the necessity of proving the inadequacy of any legal remedy or irreparable harm. Subject to the other provisions of this Paragraph 24, the remedies of Landlord and Tenant shall be deemed cumulative and no remedy of Landlord or Tenant whether exercised by Tenant or Landlord or not exercised by such party shall be deemed to be in exclusion of any other remedy unless otherwise expressly so stated in this Lease. (b) The term "Landlord" shall mean only the miner at the time in question of the present Landlord's interest in the Parking Garage (and any building of which it is a part) and in the event of a sale or transfer of the same (by operation of law or otherwise), or in the event of the making of a lease of all or substantially all of the same, or in the event of a sale or transfer (by operation of law or otherwise) of the leasehold estate under any such lease, the grantors, transferor or lessors, as the case may be, shall be and hereby is (to the extent of the interest or portion of the Parking Garage or leasehold estate sold, transferred or leased) automatically and entirely released and discharged, from and after the date of such sale, transfer or leasing, of all liability in respect of 29 the performance of any of the terms, covenants or conditions of this Lease on the part of Landlord thereafter to be performed; provided that the purchaser, transferee or lessee (collectively, "Transferee") shall be deemed to have assumed and agreed to perform, subject to the limitations of this Paragraph 24 (b) and Paragraphs 24 (c) and 24 (d) below (and without further agreement between the then parties hereto, or among such parties and Transferee) and only during and in respect of Transferee's period of ownership of Landlord's interest, under this Lease, all of the terms of this Lease on the part of Landlord to be performed during such period of ownership, which terms, covenants or conditions shall be deemed to "run with the land", it being intended that Landlord's obligations hereunder shall, as limited by this Paragraph 24(b) and Paragraphs 24(c) and 24(d) below, be binding on Landlord, its successors and assigns, only during and in respect of their respective successive periods of ownership. (c) No recourse shall be had on any of Landlord's obligations hereunder or for any claim based thereon or otherwise in respect thereof against any incorporator, subscriber to the capital stock, shareholder, officer of director, past, present or future, of any corporation or any partner or joint venturer which shall be Landlord or included in the term "Landlord" or of any successor of any such corporation, partner or joint venturer, or against any principal, disclosed or undisclosed, or any affiliate of any party which shall be Landlord or included in the term "Landlord", whether directly or through Landlord or through any receiver, assignee, trustee in bankruptcy or through any other person, firm or corporation, whether by virtue of any constitution, statute or rule of law or by enforcement of any assessment or penalty or otherwise, all such liability being expressly waived and released by Tenant. (d) Tenant shall look solely to Landlord's estate and interest in the Parking Garage (and the building of which it is a part, if any) and the proceeds thereof for the satisfaction of any right of Tenant for the collection of a judgment or other judicial process or arbitration award requiring the payment of money by Landlord and no other property or assets of Landlord, Landlord's agents, incorporators, shareholders, officers, directors, partners, venturers, principals (disclosed or undisclosed) or affiliates, shall be subject to levy, lien, execution, attachment or other enforcement procedure for the satisfaction of Tenant's rights and remedies under or with respect to this Lease, the relationship of Landlord and Tenant 30 hereunder or under law, or Tenant's use and occupancy of the City Unit or any other liability of Landlord to Tenant. (e) In any circumstances where Landlord is permitted to enter upon the City Unit during the term hereof, whether for the purpose of curing any default of Tenant or repairing damage resulting from fire or other casualty or eminent domain or as otherwise permitted hereunder or by law, no such entry shall constitute an eviction or disturbance of Tenant's use and pos$ession of the City Unit or breach by Landlord of any of its obligations hereunder or render Landlord liable for damages or entitle Tenant to be relieved from any of its obligations hereunder or grant Tenant any righ1: of recoupment or other remedy; and in connection with any such entry incident to performance of repairs, replacements, maintenance or construction, all of the aforesaid provisions shall be applicable notwithstanding that Landlord may elect to take building materials in, to or upon the City Unit that may be required to be utilized in connection with such entry by Landlord. (f) The Maintenance Costs shall bear interest at a rate which is three (3) percentage points in excess of the "base" rate quoted from time to time by Citibank, N.A. in New York, New York (not, however, to exc~ed the maximum lawful rate) or, if no such "base" rate is quoted, 15% per annum from the date due (beyond all applicable notice and grace periods) until actually received by Landlord. (g) In the event that the Parking Garage shall be destroyed by any cause whatsoever, or II the Parking Garage shall be taken for any public or quasi-public use or improvement by virtue of the power of eminent domain, Landlord shall have no obligation to rebuild the Parking Garage or damaged portion thereof, but to the extent the Landlord reconstructs the remaining portions of the Parking Garage and the City provides the Landlord with sufficient funds for the rebuilding of the Ci ty Unit (whether by insurance proceeds, condemnation awards, or otherwise) then the Landlord shall rebuild the City Unit at the same time. If the City Unit is not rebuilt, then Landlord shall be obligated to provide to the Marina Lessee one (1) accessway and dropoff parking area (for at least five (5) cars) within the general vicinity of the northerly terminus of the Property, together with fifty (50) parking spaces upon the Property in a location reasonably acceptable to Landlord. Nothing set forth herein is intended to prohibit the City from its right to seek a condemnation award for its interest in the City Unit in the event of a taking of the City Unit. 31 (h) The terms "liability" or include, without being limited damage, fine, penalty or expense. "liable" to, any as used herein shall loss, cost, claim, 25. ASSIGNABILITY: (a) Except as otherwise herein expressly provided in this Lease, neither Tenant nor its successors-in-interest by operation of law or otherwise shall sell, convey, transfer or assign this Lease or sublease the City Unit or any part thereof, or permit the, same to be used or occupied by anyone, or mortgage, pledge or hypothecate its estate or grant any concession or license within the Parking Garage and any attempt to do any of the foregoing shall be void and of no force or effect. Notwi thstanding the foregoing, Tenant shall be permitted to mortgage or pledge or otherwise hypothecate its interest in the City' Unit, to the extent permitted by law, for the purpose of obtaining the funds necessary to pay the Purchase Price Component. In the event Tenant shall propose to sell, convey, transfer or assign its interests in this Lease or sublease the City Unit, Landlord shall have a "right of first refusal" in respect of such transaction. With Landlord I s prior reasonable approval, Tenant shall have the right to grant a concession or management agreement to a concessionaire or managing agent with experience in operating parking garages for the purpose of operating of the City Unit on behalf of Tenant; provided, however, that any such concessionaire or managing agent approved by Landlord shall be bound by the terms and conditions of this Lease and any failure by such concessionaire or managing agent to perform strictly in accordance with the terms hereof shall be deemed to be a default by Tenant hereunder. (b) The parties hereto acknowledge that the Landlord will require financing to obtain the funds necessary for the construction of the Parking Garage. In the event any such lender shall require modifications of this Lease as a condition precedent to such funding, Tenant agrees to reasonably consent to same provided the requested modifications will not increase the obligations of Tenant nor diminish the rights of Tenant hereunder. 26. NOTICES AND DEMANDS: All notices, demands, correspondence and communications between the City, the Agency and Landlord shall be deemed sufficiently given under the terms of this Lease if dispatched by registered or certified mail, postage prepaid, return receipt requested, addressed as follows: 32 If to the Agency: Miami Beach Redevelopment Agency 1700 Convention Center Drive Miami Beach, Florida 33139 Attention: Executive Director with a copy to: Miami Beach Redevelopment Agency 1700 Convention Center Drive Miami Beach, Florida 33139 Attention: General Counsel If to the City: The City of Miami Beach , 1700 Convention Center Drive Miami Beach, Florida 33139 Attention: City Manager With a copy to: The City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 Attention: City Attorney If to Landlord: TRG-SSDI, LTD. c/o The Related Group 2828 Coral Way Miami, Florida 33126 Attention: Jorge Perez With a copy to: Greenberg, Traurig, P.A. 1221 Brickell Avenue Miami Florida 33131 Attention: Matthew B. Gorson, Esq. If to Marina Lessee: Miami Beach Marina Associates, Ltd. 300 Alton Road, Suite 303 Miami, Florida 33139 Attn. Robert W. Christoph, President 33 With a copy to: Bilzin, Sumberg, Dunn & Axelrod, L.L.P 2500 First Union Financial Center Miami, Florida 33131 Attention: Carter McDowell, Esq. or to such other address and to person as to the City, the Agency time designate by written notice to the attention of such other or Landlord may from time to the others. 27. CAPTIONS: The captions of convenience and reference only, and in no extend or limit the scope or intent hereof. this Lease way define, are for describe, 28. GOVERNING LAW -. VENUE: This Lease shall be governed in its enforcement, construction and interpretation by the laws of the State of Florida, without regard to principles of conflicts of laws. This Lease is being executed and delivered pursuant to the Parking Agreement and Settlement Agreement and the resolution of any disputes hereunder shall be under the continuing jurisdiction and authority of, and shall be submitted for resolution to, the Circuit Court of the 11th Judicial Circuit, Miami-Dade County, Florida (or any successor court, as applicable) pursuant to paragraph 3 of the Settlement Agreement. The parties hereto waive a trial by jury of any and all issues arising in any action or proceeding between them or their successors or assigns under or in connection with this Lease or any of its provisions or any negotiations in connection therewith. This Lease shall not be more strictly construed against either party, both parties having participated in the negotiation and preparation hereof and both parties have been represented by legal counsel. In the event of any litigation between the parties under this Lease for a breach hereof, the prevailing party shall be entitled to reasonable attorneys' fees and court costs at trial and all appellate levels. 29. RELATIONSHIP OF PARTIES: It is specifically understood and agreed by and between the parties hereto that: (1) the subject garage is located within a private development; and (2) the relationship of the parties is contractual in nature, and neither the City nor the Agency is a joint venturer, partner or agent of Landlord. No third party, other than the Marina Lessee as specifically provided herein, shall be deemed a third party beneficiary of this Lease, nor shall the same be enforceable by any such third party. 34 30. TIME IS OF THE ESSENCE: The parties specifically agree that time is of the essence regarding this Lease. 31. PARTIES BOUND: The City and the Agency shall be jointly and severally liable and bound under this Lease, and the Landlord shall be bound by this Lease, subj ect to the limitations set forth in Paragraph 24 above. 32. SEVERABILITY: If any term or provision of this Lease or the application thereof to any persons or circumstances shall, to any extent, be invalid or unenforceable, the remainder of this Lease, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected and the same shall be enforced to the fullest extent permitted by applicable law. 33. FURTHER ASSURANCES: The parties hereto shall forthwith execute and deliver all other appropriate supplemental agreements or other instruments or documents and take any other action required to accomplish the purposes described herein. 34. BROKERAGE: Landlord and Tenant each represents and warrants to the other that they have dealt with no broker, salesman, agent or other person in connection with this transaction, and that no broker, salesman, agent or other person brought about this transaction. In the event of any claim for a broker's, agent's or finder's fee or commission in connection with the negotiation, execution or consummation of this transaction by any person, the party upon whose alleged statement, representation or agreement which results in such claim or liability shall indemnify and hold the other- party harmless from and against any such claim and liability. The provisions of this paragraph shall survive the termination of this Lease. 35. RADON GAS: RADON IS A NATURALLY OCCURRING RADIOACTIVE GAS THAT, WHEN IT HAS ACCUMULATED IN A PARKING GARAGE 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 PARKING GARAGES IN FLORIDA. ADDITIONAL INFORMATION REGARDING RADON TESTING MAY BE OBTAINED FROM YOUR COUNTY PUBLIC HEALTH UNIT. [NOTE: THIS PARAGRAPH IS PROVIDED FOR INFORMATIONAL PURPOSES PURSUANT TO SECTION 404.056(8), FLORIDA STATUTES, (1988).] 36. LANDLORD'S REPRESENTATIONS: warrants to Tenant the following: (i) Landlord represents and Landlord is the sole fee 35 simple owner of the Property subject to only those title exceptions set forth in Exhibit "D" attached hereto and made a part hereof (the "Title Exceptions"); (ii) Tenant shall have access to the City Unit on a seven-day a week basis; and (iii) this Lease has been duly authorized, executed and delivered by and on behalf of Landlord and constitutes the valid and binding agreement of Landlord enforceable in accordance with the terms hereof. " 37. WAIVER OF SUBROGATION: Notwi thstanding anything in the Lease to the contrary, Landlord and Tenant hereby waive and release each other (to the extent permitted by applicable insurance) of and from any and all rights of recovery, claim or cause of action, whether by subrogation or otherwise, against each other, their agents, officers and employees, for any loss or damage which may occur to the Property or the Parking Garage or to any equipment, machinery, goods or supplies (regardless of cause or origin, including negligence of Landlord or Tenant and their agents, officers and employees), which loss or damage is insured by any policy of insurance carried by the other party but only to the extent the insurance is paid on account thereof. Each party to this Lease agrees to immediately give to each insurance company written notice of the terms of the mutual waivers of subrogation contained in this J?aragraph and to have the insurance policies properly endorsed, if necessary, to prevent the invalidation of the insurance coverage by reason thereof and each party shall reasonably seek to obtain consent from the insurer of this waiver. 38. RECORDATION: Simul taneous with the execution of this Lease, Landlord and Tenant shall execute a memorandum of this Lease in recordable form and in a form reasonably acceptable to the Landlord and Tenant, and Tenant shall record said memorandum of lease in the Public Records of Miami-Dade County, Florida. 39. ENTIRE AGREEMENT: This Lease, together with the referenced provisions of the Parking Agreement, Settlement Agreement and Development Agreement, contain the entire agreement between the parties hereto and all previous negotiations leading thereto, and this Lease may be modified only by an agreement in writing signed and sealed by Landlord and Tenant. No surrender of the City Unit, or of the remainder of the Term of this Lease, shall be valid unless accepted by Landlord in writing. Tenant acknowledges and agrees that Tenant has not relied upon any statement, representation, prior written or prior or contemporaneous oral promises, agreements or warranties except such as are expressed herein. 36 IN WITNESS WHEREOF, this Lease has been executed by the parties on the day and year first above BEACH Witnessed by: By N Ti e: Mayor Attest: _rLO.l-lL t P~Lt.L.LLL\ Name: Robert Parcher Title: City Clerk By: Nam Tit .vid Dermer Chairman \Ln,ll\ ~ ~tLtLlu\ Robert Parcher Secretary Attest: Name: Title: . TRG-SSDI, LTD., a Florida limited partnership By: TRG-SSDI~ INC., a Florida corporation, General Partner By: ~kJ'~ N~m~ .7CJlt!.€' /11. a&AJ~'c~ T ~ t e: -zh.--<--:~:-.A u./~~ +- MIAMI/GOLDMANJ/1135864/ cfsOl!. OQC/3/20/02 37 APPROVED AS TO FORM & LANGUAGe & FOR EXECUTION ~ ~ It-I(.- 0/ r;--